as Deacons and Curates in places appointed 2. Under this Name or Appellation of Bishops are contained Bishops Primates Metropolitans Patriarchs and Summus Pontifex Dist 21. c. 1. And the Presbyters also C. Legimus § 1. Dist 93. Spec. de Instr Edit Sect. 14. vers de Episcopo and for such commonly used and taken in the New Testament l. 14. c. de Episc Cler. In some Acts of Parliament we find the Bishop to be called Ordinary and so taken at the Common Law as having Ordinary Jurisdiction in Causes Ecclesiastical albeit in the Civil Law whence that word Ordinarius is taken it signifies any Judge authorized to take Cognizance of Causes proprio suo jure as he is a Magistrate and not by way of Deputation or Delegation The word Ordinary doth chiefly take place in a Bishop and other Superiours who alone are Universal in their Jurisdictions yet under this word are comprized also other Ordinaries viz. such as to whom Ordinary Jurisdiction doth of right belong whether by Priviledge or by Custome Lindw de Constit c. Exterior ver Ordinarii The Pallium Episcopale or Bishops Pall mentioned as Sr. Ed. Coke observes in some Statutes and many Records and Histories is a Hood of white Wool to be worn as Doctors Hoods upon the Shouldiers with Four Crosses woven into it c. for the Form and Colours whereof vid. Antiq. Brit. Eccles fo 1. This Pallium Episcopale is the Arms belonging to the See of Canterbury vid. Cassan de glo mun p. 4. fo 103. a. 26. Consid ubi multa Legas de Pallio Henry Dean the 65th Archbishop of Canterbury An. 1502. had Pallium Archiepiscopatus Insigne sent him from Pope Alexander 6. by his Secretary Adrian which by the Bishop of Lichfield and Coventry Authorized thereto by the Pope was presented him at Lambeth in these words viz. Ad honorem Dei Omnipotentis c. Tibi tradimus Pallium de Corpore beati Petri sumptum plenitudinem videlicet Pontificalis Officii c. whereupon he swore Canonical obedience to the Apostolical See of Rome 3. The Kings of England were Anciently the Founders of all the Archbishopricks and Bishopricks in this Realm and also in Wales the Bishops thereof were Originally of the Foundation of the Princes of Wales Bishops in England originally were Donative per traditionem Baculi Pastoralis Annuli until King John by his Charter granted that they should be Eligible Chart. 25. Jan. An. Reg. 17. De Commuâ—i Consensu Baronum after which came in the Congé d'Eslire And at this day the Bishopricks in Ireland are Donative Rolls 342. The Patronage of all Bishopricks is in the King so as that he gives leave to the Chapters to chuse them In Ancient times the King gave the Bishopricks and then afterwards gave leave to the Chapters to chuse them as aforesaid The learned Serjeant Roll in that part of his Abridgment touching this Subject makes mention of 1 E. 1. Rot. Clauso Memb. 11. in dorso where there is this Protestation made by the King Cum Ecclesia Cathedralis viduatur de jure debeat soleat de Consuetudine provideri per Electionem Canonicam ab ejusmodi potissimum Celebrandam Collegiis Capitulis personis ad quos jus pertinet petita tamen prius ab Illustri Rege Angliae super hoc Licentia obtenta demum Celebrata Electione persona Electa eidem Regi habeat Praesentari ut idem Rex contra personam ipsam possit proponere si quid rationabile habeat contra eum And the Protestation goes further That in case the Pope makes Provision without such Canonical Election the King shall not be obliged to give him his Temporalties yet of grace for the time present he give the Temporalties to the Abbot Elect of Canterbury Thus the Election of Bishops by Deans and Chapters began by the grant of the King but the Grant was to Elect after License first had and obtained as appears by the Stat. of 25 Ed. 3. Stat. de Provisoribus Rastal 325 d. And King John was the first that granted it by his Charter dated 15 Jan. An. 16. William Rufus K. after the Archbishop of Canterbury's death kept the See without an Archbishop for the space of four years and then assum'd divers other Ecclesiastical Promotions into his own hands that were then vacant putting to Sale divers Rights and Revenues of the Church But King H. 1. made a Law against Reservations of Ecclesiastical Possessions upon Vacancies In the time of Edward the Confessor the Prelates used to receive Investitute from the King by giving them the Pastoral Staff and a Ring And so it was used in the time of H. 1. but Suffragans were invested only by the Ring without the Staff for that they are not Bishops so fully and compleatly as the other 4. To the Creation of Bishops are requisite Election Confirmation Consecration and Investiture Upon the vavancy of a See the King grants his License under his Great Seal to the Dean and Chapter of such vacant Cathedral to proceed to an Election of such a person as by his Letters Missive he shall nominate and appoint to succeed in such vacant Archbishoprick or Bishoprick which Election must be within twenty days next after their receiving such License or Letters Missive upon failure whereof they run the danger of a Praemunire Or if above twelve days after their receipt thereof the Election be deferr'd the King may by his Letters Patent nominate or present to such vacant Bishoprick to the Archbishop or Metropolitan of that Province wherein such See is void or unto one Archbishop and two other Bishops or to four such Bishops as his Majesty shall think fit in case upon such Nomination or Presentment by the King the default of Election by the Dean and Chapter be to the Office and Dignity of a Bishop Otherwise if they Elect according to his Majesties pleasure in his Letters Missive the Election is good and upon their Certificate thereof unto his Majesty under their Common Seal the person so Elected is reputed and called Lord Bishop Elect yet is he not thereby compleat Bishop to all intents and purposes for as yet he hath not Potestationem Jurisdictionis neque Ordinis nor can have the same untill his Confirmation and Consecration for which Reason it is that if after such Election and before Consecration a Writ of Right be brought in the Court of a Mannor belonging to such Bishoprick it is not directed Episcopo but Ballivis of the Bishop Elect. The order of making a Bishop consists chiefly in these Eight things viz. 1. Nomination 2. Congé d'Eslire 3. Election 4. Royal Assent 5. Confirmation 6. Creation 7. Consecration 8. Installation Vid. Grendon's Case in Plowd Trin. 17 Jac. B. R. Sobrean Teige vers Kevan Roll. Rep. par 2. The Creation of a Bishop is in this Solemn
vacancy of a Bishoprick the Dean and Chapter by virtue of his Majesties License under the Great Seal of England hath proceeded to the Election of a new Bishop in pursuance of and according to his Majesties Letters Missive on that behalf and Certificate thereof made unto the Kings Majesty under their Common Seal then follows the Confirmation Consecration and Investiture by the Archbishop or Metropolitan of that Province wherein such Bishoprick was void the said Election having upon such elected Bishops Oath of Fealty to the Kings Majesty been first signified to the Archbishop by the King under his Great Seal whereby the said Archbishop is required to Confirm the said Election and to Consecrate and Invest the person Elected And now he is compleat Bishop as well unto Temporalties as Spiritualties yet after his Confirmation and before his Consecration the King may if he please ex gratia grant him the Temporalties But after his Consecration Investiture and Instalment he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium And yet it seems the Temporalties are not de jure to be delivered to him until the Metropolitan hath certified the time of his Consecration although the Freehold thereof be in him by his very Consecration But if during the Vacation of Archbishopricks or Bishopricks and while their Temporalties are in the Kings hands the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony the King by his Prerogative hath the Escheats of such Freeholders-Lands to dispose thereof at his pleasure saving to such Prelates the Service that is thereto due and accustomed Before the Conquest the Principality of Wales was held of the King of England and by the Rebellion and forfeiture of the Prince the Principality came to the King of England whereby the Bishopricks were annexed to the Crown and the King grants them their Temporalties 10 H. 4. 6. 7. The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith wherein it was agreed That when a Bishop dies or is Translated the Dean and Chapter certifie the King thereof in Chancery and pray leave of the King to make Election Then the King gives his Congé d'Esâ—ire whereupon they make their Election and first certifie the same to the party Elect and have his consent Then they certifie it to the King in Chanceâ—y also they certifie it to the Archbishop and then the King by his Letters Patents gives his Royal Assent and commands the Archbishop to Confirm and Consecrate him and to do all other things necessary thereunto whereupon the Archbishop examines the Election and the Ability of the party and thereupon confirms the Election and after Consecrates him according to the usage upon a New Creation And upon a Translation all the said Ceremonies are observed saving the Consecration which is not in that case requisite for that he was Consecrated before 8. Bishopricks were Donatives by the King till the time of W. Rufus and so until the time of King John Read for that the History of Eadmerus Vid. Case Evans vers Ascouth in â—in Caâ— Noy 's Rep. It hath been generally held That before the Conquest and after till the time of King John Bishops were Invested by the King per Baculum Annulum but King John by his Charter granted That there should be a Canonical Election with Three Restrictions 1. That leave be first asked of the King 2. His Assent afterwards 3. That he shall have the Temporalties during the Vacation of the Bishoprick whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus and which is confirmed by the Stat. of 13 R. 2. c. 2. Also the Law in general is positive therein That in the making of all Bishops it shall be by Election and the Kings Assent and by the 25 H. 8. the Statute for Consecration of Bishops makes it more certain And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King it was but an Usurpation and contrary to the Law and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him but by Election as the said Statute prescribes And the form of making a Bishop at this day is after the same manner as aforesaid and according to the said Statute 9. The Interest and Authority which a Bishop Elect hath is That he is Episcopus Nominis non Ordinis neque Jurisdictionis But by his Confirmation he hath Potestatem Jurisdictionis as to Excommunicate and Certifie the same 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease But after Election and Confirmation he hath Potestatem Ordinationis for then he may Consecrate confer Orders c. For a Bishop hath Three Powers 1. Ordinis which he hath by Consecration whereby he may take the Resignation of a Church confer Orders consecrate Churches And this doth not appertain to him quatenus Bishop of this or that place but is universal over the whole World So the Archbishop of Spalato when he was here conferr'd Orders 2. Jurisdictionis which is not Universal but limited to a place and confin'd to his See This power he hath upon his Confirmation 3. Administratio rei familiaris as the Government of his Revenue and this also he hath upon his Confirmation The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction By the former he Ordains Deacons and Priests Dedicates or Consecrates Churches Chappels and Churchyards administers Confirmation c. By the latter he acts as an Ecclesiastical Judge in matters Spiritual by his Power either Ordinary or Delegated 10. An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc Cant. in Synodo Constitutum est Ne quis Jurisdictionem Ecclesiasticam exerceret nisi Juris Civilis aut Canonici gradum aliquem ab Oxoniâ—nsi vel Cantabrigiensi Academia accepisset Ant. Brit. fo 284. nu 40. The power of the Bishop and Archbishop is derived from the Crown as was held in Walkers Case against Lamb where it was also held That the Grant of a Commissary or Official to one was good notwithstanding he were a Lay man and not a Doctor of Law but only a Batchelour of Law for the Court then said That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription and that in it self as it is coercive to punish Crimes or to determine Matrimonial Causes and Probate of Testaments and granting of Administrations being Civil Causes are derived from the Crown and not incident de mero jure to the Bishop which appears by Henslows Case par 9. Cawdry's Case par 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities and the Statute of 37 H. 8. c.
next in precedency hath been a Count Palatine about six or seven hundred years and hath at this day the Earldom of Sadberg long since annexed to this Bishoprick by the King Note a President hath been shewed at Common Law That the Bishop of Durham imprisoned one for a Lay-Cause and the Archbishop of York as his Sovereign cited him to appear before him to answer for that Imprisonment and the Archbishop was fined four thousand Marks Cro. par 1. The Bishop of Winchester was anciently reputed Earl of Southampton All the other Bishops take place according to the Seniority of their Consecration unless any Bishop happen to be made Lord Chancellor Treasurer Privy Seal or Secretary of State which anciently was very usual All the Bishops of England are Barons and Peers of the Realm have place in the Upper house of Parliament as also in the Upper house of Convocation The Bishopricks were erected into Baronies by William the Conqueror at his coming into England And as a special remark of Honour Three Kings viz. of England Scotland and south-South-Wales in the year 1200. did contribute their Royal shoulders for the conveyance of the deceased Corps of Hugh Bishop of Lincoln to his Grave And no wonder when Princes themselves and such as were of the Blood Royal were anciently Bishops in this Kingdom they have been not only of the best Nobility but divers of the Sons and Brothers of several English Kings since the Conquest and before have entred into Holy Orders and became Ecclesiasticks as at this day is practicable in the most of all other Monarchies throughout the whole Christian World Ethelwolph Son and Successor to Egbert first Sole King of England was in Holy Orders and Bishop of Winchester at his Fathers death Odo Brother to William the Conqueror was Bishop of Bayeux in Normandy Henry de Blois Brother to King Stephen was Bishop of Winchester Geofry Plantagenet Son to King Henry the Second was Bishop of Lincoln And Henry de Beauford Brother to King Henry the Fourth was Bishop also of Winchester 20. The Statute of 17 Car. 1. cap. 27. for disinabling persons in Holy Orders to exercise Temporal Jurisdiction or Authority being Repealed as aforesaid by the Statute of 13 Car. 2. cap. 2. they are thereby restored to the exercise of Temporal Jurisdiction as formerly which indeed is no more than what they ever Anciently exercised in this Kingdom For Ex Clero Rex semper sibi eligebat Primos à Consiliis Primos ad Officia Regni obeunda Primi igitur sedebant in omnibus Regni Comitiis Tribunalibus Episcopi in Regali quidem Palatio cum Regni Magnatibus in Comitatu una cum Comite in Turno cum Vice-comite in Hundredo cum Domino Hundredi sic ut in promovenda Justitia usquequaque gladii gladium adjuvaret nihil inconsulto Sacerdote vel Episcopo ageretur This Union of Persons Authority and Courts of Judicature Ecclesiastical and Civil as Mr. Selden proves continued above Four thousand years till Pope Nicholas the First about the Eighth Century to exclude the Emperour from medling in the Ecclesiastical Government began to exclude the Clergy from medling with the Civil And for the space of four or five hundred years during the Reign of the Saxon Kings in England the Ecclesiastical and Secular Magistrates sate joyntly together determining Ecclesiastical Affairs in the Morning and Secular or Civil Affairs in the Afternoon so that in those days as there was no clashing of Jurisdictions so no complaint touching Prohibitions but an unanimous harmony in a kind of Joynt-Jurisdiction in reference to all Ecclesiastical and Civil Affairs until William the Conqueror did put a distinction between Church and State in a more divided way than formerly had been practiced Also the excellent Laws made by King Ina King Athelstan King Edmund and St. Edward the Confessor from whom we have our Common Laws and our Priviledges mentioned in Magna Charta were all made by the perswasions and advice of Archbishops and Bishops named in our Histories 21. That which during the Reign of King Edw. 6. made the greatest alteration and threatned most danger to the State Ecclesiastical was the Act entituled An Act for Election and what Seals and Styles shall be used by Spiritual persons c. In which it was ordained That Bishops should be made by the Kings Letters Patents and not by the Election of the Deans and Chapters That all their Processes and Writings should be made in the Kings Name only with the Bishop's Teste added to it and sealed with no other Seal than the Kings or such as should be Authorized and Appointed by him In the compounding of which Act there was more danger as Dr. Heylin observes couched than at first appeared For by the last Branch thereof it was plain and evident says he that the intent of the Contrivers was by degrees to weaken the Authority of the Episcopal Order by forcing them from their strong hold of Divine Institution and making them no other than the Kings Ministers only or as it were his Ecclesiastical Sheriffs to execute his Will and disperse his Mandates And of this Act such use was made though possibly beyond the true intention of it that as the said Dr. Heylin observes the Bishops of those Times were not in a Capacity of conferring Orders but as they were thereunto impowred by special License The Tenour whereof if Sanders be to be believed was in these words following viz. The King to such a Bishop Greeting Whereas all and all manner of Jurisdiction as well Ecclesiastical as Civil flows from the King as from the Supream Head of all the Body c. We therefore give and grant to thee full power and License to continue during our good pleasure for holding Ordination within thy Diocess of N. and for promoting fit persons unto Holy Orders even to that of the Priesthood Which being looked on by Queen Mary not only as a dangerous diminution of the Episcopal Power but as an odious Innovation in the Church of Christ she caused this Act to be Repealed in the first year of her Reign leaving the Bishops to depend on their former claim and to act all things which belonged to their Jurisdiction in their own Names and under their own Seals as in former times In which estate they have continued without any Legal Interruption from that time to this But says the same Author in the First Branch there was somewhat more than what appeared at the first sight For though it seemed to aim at nothing but that the Bishops should depend wholly on the King for their preferment to those great and eminent places yet the true drift of the Design was to make Deans and Chapters useless for the time to come and thereby to prepare them for a Dissolution For had nothing else been intended in it but that the King should have the sole Nomination of all the Bishops in his Kingdoms it had
of new improvements in their own occupation by culture Pasture and Garden-Fruits only the said Three Orders were exempted from the general payment of all Tithes whatever The Templers and Hospitallers were meer Lay-men yet they were exempted as well as the other Yet the Lateran Council in An. 1215. Ordered That this Priviledge should not extend to Covents erected since that Lateran Council nor to Lands since bestowed on the said Orders though their Covents were erected before that Council Insomuch that when the said Cistercians contrary to the Canons of that Council purchased Bulls from the Pope to discharge their Lands from Tithes King H. 4. Null'd such Bulls by the Stat. of 2 H. 4. cap. 4. and reduced their Lands to a Statu quo These Exemptions from payment of Tithes in this or that particular Religious Order was not known in the World when Aethelwolph Son of Egbert whom he succeeded as King of the West-Saxons gave as aforesaid Tithes of all his Kingdom and that freed of all Tributes Taxes and Impositions as appears by his Charter to that purpose having at a Solemn Council held at Winchester subjected the whole Kingdom of England to the payment of Tithes True it is that long before his time many Acts for Tithes may be produced such as the Imperial Edicts Canons of some Councils and Popes beside such Laws as were made by King Ina and Offa yet the said Edicts and Canons were never received in their full power into England by the consent of Prince and People nor were King Ina and Offa though Monarchs of England as it were in their turns such Kings as conveyed their Crowns to the Issue of their Bodies but the said Aethelwolph was Monarcha Natus non factus and although before his time there were Monarchs of the Saxon Heptarchy yet not successive and fixed in a Family but the said King Egbert being the first that so obtained this Monarchy as to leave it by descent unto his Son the said Aethelwolph he thereby had the more indisputable power to oblige all the Kingdom unto an observance of the said Act. In the said Chapter of Tithes there is also mention made of Mortuaries as having some relation of Tithes wherein is shewed what it is when by and to whom and wherefore to be paid By the Stat. of 21 H. 8. they are reduced to another Regulation than what was in the time of King Henry the Sixth A Mortuary was then the Second best Beast whereof the party died possessed but in case he had but two in all then none due It was called a Corse-Present because ever paid by the Executors though not alwaies bequeathed by the dying party All persons possessed of an Estate Children under Tuition and Femes Covert but not Widows excepted were liable to the payment thereof to the Priest of that Parish where the dying party received the Sacrament not where he repaired to Prayers but in case his House at his death stood in two Parishes it was then divided betwixt them both And it was given in lieu of Personal Tithes which the party in his life time had through ignorance or negligence not fully paid Lindw Cons de Consuetud Such of the ancient Lawyers as were unacquainted with this word Mortuarium in the aforesaid sense as we now use it took Mortuarium only pro derelicto in morte say of it That it is Vocabulum novum harbarum but we understand it better where of Custome it is due and payable These Mortuaries where by the Custome they are to be paid were ever in consideration of the omission of Personal Tithes in the parties Life-time which Personal Tithes were by the Canon Law to be paid only of such as did receive the Sacraments and only to that Church where they did receive them as may be inferr'd plainly from cap. Ad Apostolicae de Decimis But observe says Lessius that in many places these Personal Tithes have been quite taken away and in some places they are paid only at the end of a mans Life as among the Venetians which manner of payment seems to have a great resemblance to these Mortuaries and in some places they are paid only ot the end of the year And in like manner many Predial and Mixt Tithes in divers places are also abolish'd which says he is for the most part done by the permission of the Church where men have been observed to pay them with regret and much against their minds nor hath the Church in such cases thought fit to compel them to it on purpose to avoid scandal Lessius de Just jur lib. 2. cap. 39. Dub. 5. nu 27. And in such places where the Custome is to pay a Personal Tithe when any persons shall Hunt Fish or Fowl to make gain or merchandize thereby and it be neglected to be paid whether Restitution or Compensation by way of a Mortuary where Mortuaries are Customable be in that case due by Law is a Question which by Covarruvies may be well held in the Affirmative Although the face of the Church as well as State began to look with a purer though less Sanguine complexion when Queen Elizabeth adorn'd the Crown than when her Sister wore it yet even in Queen Elizabeths time there crept such abuses into the Church that Archbishop Parker found it necessary to have recourse unto the Power given him by the Queens Commission and by a Clause of the Act of Parliament For the uniformity of Common Prayer and Service in the Church c. whereupon by the Queens consent and the Advice of some of the Bishops he sets forth a certain Book of Orders to be diligently observed and executed by all persons whom it might concern wherein it was Provided That no Parson Vicar or Curate of any Church Exempt should from thenceforth attempt to conjoyn by solemnization of Matrimony any not being of his or their Parish-Church without good Testimony of the Banns being ask'd in the several Churches where they dwell or otherwise were sufficiently Licensed Heyl. Hist of Q. Eliz. An. Reg. 3. Banns or Banna that word Bannum is sometimes taken pro Mandato scil Edicto it is a word of divers significations as appears almost by all the Glossographists and Feudists it sounds sometimes like Edictum sometimes like Mandatum or Decretum and sometimes as here like Proclamatio Saxonibus gebann whence there is their gebannian pro Proclamare edicere mandare ut nostratium Bannes pro Nuptiarum foedere Publicato This Publication of Banns was cautiously ordain'd for the prevention of Clandestine Marriages which were prohibited in this Kingdom above 500 years since as a thing contrary in all Ages to the practice of all Nations and Churches where the Gospel was received and therefore at a Council conven'd at Westminster in the year 1175. by Richard Archbishop of Canterbury under the Reign of King H. 2. it was Ordain'd That no person whatsoever should solemnize Marriage in
if he please to increase the part of the Vicar and there was not power of diminution As by Hutton It is also usual in such Compositions and they say That the word Altaragium shall be expounded according to the use as if Wood had alwaies been paid to the Vicar by virtue of this word so it shall continue otherwise not And so it had been Ruled in the Exchequer and upon that President it was Ruled accordingly so in this Court And by them Wood is Minuta decima as in the case of St. Albans it was Ruled 5. In a Trial at the Barr in an Action of Trespass the Question arising between the Parson and the Vicar as touching Tithe-Wood and to whom the same belonged As to this by the Opinion of the whole Court clearly the Parson de mero jure ought to have the Tithe-Wood if the Vicar be not Endowed of the same or claims to have it by Prescription but without such a Dotation or Prescription the same belongs to the Parson Another Question was propounded for the Vicar who entitles himself unto the Tithe-wood by these words Altaragium and Minutae Decimae whether these words will carry the Tithe-Wood unto him or not As to this the exposition and true definition of this word Altaragium is considerable and to whom this is due Altaragium as was observed is that which is due to be served at the Altar Wilâ—iams Justice Altaragium is that only and properly which is offered at the Altar and Minutae Decimae are the Small Tithes also the word Altaragium will not carry Tithe-Wood And this is the Question here Whether the Vicar by this word Altaragium hath Title to the Tithe-Wood Crook Justice This word Altaragium doth not carry the Tithe-Wood which are great Tithes but Minutas Decimas which are petit small Tithes Minutae Decimae Altaragia the Vicar as was urged is to have them by his Composition and that by these words he is to have Tithe-Wood Fleming Chief Justice There is an Usage here laid in the Vicar to have the Tithe-Wood by reason of these words Altaragia Minutae Decimae the which the Vicar can no waies have but by Prescription or by such a Usage and so the same may pass by these words Altaragia Minutae Decimae and the Usage had accordingly Also Sheaves of Corn have passed by Usage to the Vicar by the words Altaragia Minutae Decimae and so it was Adjudged in the Court of Exchequer The Judges all agreed in this That by these words Altaragia Minutae Decimae by Usage Tithe-wood may well pass and so hath the Opinion of all the Civilians been Fleming Chief Justice and the rest of the Judges agreed in this That by Usage the word Altaragia shall be accounted inter Minutas Decimas Williams Justice By the word Altaragia Tithe-Wood doth not pass but if the Vicar have used to have the same time out of mind This is good and shall pass under the words of Minutae Decimae Fleming Chief Justice Though the Law be against it that Tithe-Wood doth not pass by these words yet by Usage it hath been allowed good to carry Tithe-Wood by these words being of small value and by such Usage Tithe-Wood may pass though the Law be against it CHAP. XXXII Of Tithes 1. What Tithes are the Original thereof in England with the Division and Subdivision thereof 2. Whether the Quotity be Moral or only of the Ceremonial or Judicial Law The Institution of Tithes the lawfulness thereof under the Gospel it is Sacriledge Theft and Robbery to withhold them 3. The Common Arguments against the payment of Tithes Answered 4. A Fourfold Division of Tithes under the Levitical Law 5. The Schoolmens conceit touching the Division of Tithes in allusion to the Division of the Law of Moses 6. Tithes anciently Ecclesiastical are now Temporal Inheritances several Laws touching Tithes in general 7. What the Common Law of England understands by Tithes The first obstruction thereof by Charles Martel 8. The supposed Reason why Tithes before the Lateran Council might be paid to any Church or any Priest The original Division of England into Parishes 9. The Exact provision anciently as well before as since the Conquest made by the Sovereign Kings and Princes of this Realm for the due payment of Tithes 10. The Supposition of the Parâ—chial Right of Tithes to be settled by a Canon of the Council of Lateran Contradicted 11. Whether a Parson may make a Lease parol of his Tithes 12. Tithes discharged by Vnity of possession 13. A Covenant between Parson and Parishioner touching Non-payment of Tithes 14. Whether Proof by one Witness in case of Tithes ought to suffice in the Ecclesiastical Court 15. Tithe-Wool and Rotten Sheep Tithe-Calves 16. Tithe-Headlands Tithe-Wool Lamb and Wool included in Samll Tithes 17. Tithe-Wool of Sheep depastured in one Parish and shear'd in another 18. Suit for the Tithe-Grass of a Riding Nagg 19. Modus decimandi touching Tithe-Wool and Lamb. 20. Park-Tithes Buck and Doe not tithable what Partridges and Pheasants are not tithable 21. Saffron whether it be Small Tithes Venisâ—n not tithable 22. Prohibition for not allowing Proof by one Witness 23. An Action of the Case lies against a Parson that takes not away in due time his Tithe-Corn set out 24. The Parishioner not obliged to divide the Tithes into Moities where two persons have portion of Tithes by halves 25. A Custome of not tithing the odd Sheafs good 26. Whether Tithes shall be paid of the Glebe leased to a Farmer 27. Whether Tithes may be Leased or Released without Deed 28. A Parson may Sue in the Ecclesiastical Court pro modo Decimandi 29. Whether that Court may proceed therein in case the Modus be denied 30. In what case the Right of Tithes is triable in the Exchequer 31. A Case in Law touching Prescription and of Tithes of a Park Disparked 32. What things are reputed Majores what Minores Decimae and how they may vary according to the Circumstances 33. Whether Tithes are payable of Cattel for the Dairy or the Plough 34. Whether a Dean and Chapter be capable de non decimando their Lands 35. Touching Tithe-Herbage of young Cattel of Hedge-stuff of Orchards and the Custome of Hearthy-peny 36. Tithe-Fish Customary Tithe whether Prohibition or not 37. Acorns tithable if sold whether Pidgeons if spent in the house 38. Several Cases touching Discharges of Tithes 39. Hay of Headlands whether tithable 40. Prescription for discharge of Tithes upon payment of 10 s. per ann 41. A Forrest in the Kings hands is priviledged of Tithes not so in the hands of a Subject The Right of Tithes between Parson and Vicar triable in the Ecclesiastical 42. Whether Tithe shall be paid for Hedge-boot and Fire-boot 43. Touching Tithe of young Cattel of Hedging and Fencing of the Herbage of Heifers and Horses of Dry-Cattel and of Gardens how far tithable or not 44. Apples stollen out of the Orchard not
tithable no Tithes of Pasture of Milch-kine grown dry unless kept for Sale 45. Composition for Tithes for life not good without Deed. 46. Estovers burnt in the house not Tithable The Hearth-peny good by Prescription 47. A Composition for Tithes de anno in annum 48. The Modus decimandi is Suable in the Ecclesiastical Court as well as the Tithe it self 49. Proâ—ibition in case of Libel to prove in perpet rei memo 50. Custome of Tithe-Grass Cocks as to both Mathes 51. In a Prohibition upon matter at Common Law and not within the Stat. of 2 E. 6. 13. the Suggestion need not be proved in Six months 52. Tithe-Hay of Headlands Custome and Prescription 53. Tithe-Hay of Heathlands also Tithe of Pidgeons 54. Minute Tithes to the Vicar 55. Tithes to Parson and Vicar may amount but to one Action 56. The Curate may not Prescribe in Tithes against the Parson 57. Curates may sue for Pensions in the Ecclesiastical Court 58. By the Civil Law the Parson to have Notice when Tithes set out 59. Action on the Case against a Compounder for Tithes Suing in the Ecclesiastical Court 60. Modus decimandi by one may hold as to others for a Prohibition 61. Composition for one year good without Deed not if for years 62. Tithe-Hasel Holly Willow Whitethorn Whether the Parishioner shall preserve the Parsons Tithe for him 63. Testis Singularis not sufficient to prove payment of Tithes in the Ecclesiastical Court 64. Composition for Tithes and a Prohibition thereon 65. Tithes taken away by a Stranger after they are set out the Parsons remedy lies at the Common Law 66. In what Case no Costs upon failure of Proof of the Suggestion within the Six months 67. Modus Decimandi may be Sued for in the Ecclesiastical Court where if denied they are to surcease 68. Custome in Cornwall touching Tithes of Sea-fâ—sh 69. In what Case an Agreement for Tithes for years may be good without Deed. 70. In what Court Tithes of Rents in London may be Sued 71. A Collector of Tithes cannot License a Parishioner to carry away his Corn. 72. Whether Debt lies for Treble dammages upon Fraudulent setting forth of Tithes 73. Tithes whether they belong to the Parson or the Vicar cognizable in the Ecclesâ—astical Court where the Right of Tithes is confessed 74. The Ecclesiastical Court not Judges of the Bounds of a Parish 75. Modus Decimandi in reference to a Park 76. A Frâ—udulent setting out of Tithes is no setting them out at all 77. The Vicar shall have Tithe of Rape-Seed being within a Prescription though a new thing in England 78. What the word Garba signifies 79. Whether Wood in its own nature be great Tithes and in what case it shall pass by the words de minutis Decimis 80. If two Titles of Tithes unite in one person there need but one Action for them 81. A Parson may not sett a Lease for years of Tithes per parol only 82. If a Parson be disturbed in carrying away his Tithes seâ— out his Remedy lies properly in the Ecclesiastical Court 1. TITHES Dismes Decimae probably an abbreviation from the Saxon Teoâ—unâ— or Tithing properly Decuria in that Language Lamb. Expl. of Sax. words verb. Deâ—uria That the Apostles and Elders at Jerusalem were competently supplied by the Contributions of the Jewish Proselytes is very conjecturable in that they sold their possessions and brought the price thereof and laid it down at the Apostles feet and such as then planted the Gospel and labourâ—â— in the Word and Doctrine had their maintenance by the Contributions of their Converts Vid. Concil Grang. Can. 7 8. And St. Cyprian writing to his Church of Carthage Epist 33 34. to receive Aurelius and Cellerinus Confessors saith in Epist 34. Presbyterii honorem designasse nos ilâ—is jam sciatis ut sportulis iisdem cum Presbyteris honorentur Divisiones Mensurnas aequatis quantitatibus partiantur Know you that we have already designed to them the Dignity of Presbytership that they might be honoured with such allowances as Presbyters have and receive equal shares in the Monthly Dividends So that Sportulae were the allowances which in this Infancy of the Gospel the Presbyters had out of the Contributions of the Converts And the Fratres Sportulantes mentioned by him in Epist 66. were the Clergy which received such allowance These Converts after the Conversion of Constantine the Emperour many of them being Governours and Nobles settled great and large Demesn-Lands upon those who Converted them and that according to Mr. Seldens conjecture the first Oratories or places of Publick Worship were built in the Lands bestowed on them which first Oratories were called Cathedrals Sees or Seats from their constant Residence thereon That the Christian Church even in times of Persecution laid claim to Tithes as due Jure Divino is partly confessed by Mr. Selden himself citing some passages in the Ancient Fathers to that purpose But when the Empire became Christian then the Christian Clergy did more earnestly press the Donation of Tithes and in process of time they prevailed not only by Preaching and Canons but by the Edicts of Emperours and Kings to have Tithes given to the Church And it appears that the Roman Empire where-ever it did reduce any Conquered Countrey in formam Provinciae appointed the Farmers of the Customes to collect among other Impositions the Tenths of the Tenants of the Empires that is of all who occupied any Land in the Conquered Province either as immediate Tenants to the Empire or as Sub-Tenants under them The Publicans therefore who collected these Tributes were called Decumani as Mr. Selden pag. 39. of his History of Tithes doth observe out of Appian But whether these Tenths were received by the Senate or Emperours upon a Civil or Religious account is not liquid and clear For the Emperours alwaies till Christianity came in nay Constantine and other Emperours even after Christianity was received till Gratian's time as the Noble and Learned Du-plessy in his Mystery of Iniquity observes out of Zosimen continued the chief Pontifice or High-Priesthood in their own persons And as touching us here in England Dr. Heylin P. H. Treleyny in his Treatise touching Tithes p. 3. saith Tithes are not given to the Ministers by the People for Sr. Ed. Coke on Litt. Tenures lib. 1. c. 9. Sect. 73. fo 58. asserteth That it appears by the Laws and Ordinances of Ancient Kings and especially of King Alfred That the first Kings of this Realm had all the Lands of England in Demesn and Les Grandé Mannors Royalties they reserved to themselves and with the Remnant they for the defence of the Realm enfâ—offed the Barons of the Realm with such Jurisdiction as the Court Baron now hath And at this time when all the Lands of England were the King Demesns that Ethelwolph the Second Monarch of the Saxon race his Father Egbert being the first which brought the former Heptarchy under one
sole Prince conferred the Tithes of all the Kingdom upon the Church by his Royal Charter Of which Ingulph Abbot of Crowland An. 855. saith That King Ethelwolph with the consent gratuito consensu of his Prelates and Princes did first enrich the Church of England with the Tithes of all his Lands and Goods Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden as entirely the Gift of Kings And so saith King Elred Nemo auferat à Deo quod ad Deum pertinet Praecessores nostri concesserunt The whole Bishoprick Anciently was in a large sense a Paroecia and the income of it by Contributions first and by Tithes also afterwards was the Common stock of all the Clergy of the Diocess and Mr. Selden asserts it to be the general Opinion of all the Common Lawyers That before the Lateran Council under Innocent 3. every man might have given his Tithes to what Church he would probably within the Diocess because they were not the Propriety as yet of any one Presbyter but the Common Patrimony of all the Diocesan Clergy So that Tithes are a Tenth part of all increase Tithable due to God and consequently to his Ministers that wait on the Altar These are divided into Three sorts 1. Praedial Tithes arising only either of the Fruits of the Ground as Corn Hay Hemp and the like or of the Fruits of Trees and Orchards as Apples Pears and the like 2. Personal Tithes arising of the profits that come by the labour and industry of Man either by Handicrafts as Carpenters Masons and the like or by Buying Selling or Merchandizing 3. Mixt Tithes arising partly of the Ground and partly of the Industry of Man as of Calves Lambs Piggs Milk Cheese and the like No Tithes shall be paid for such things as do not increase and renew year by year by the Act of God Of Praedial Tithes some are called Majores vulgarly termed the Great Tithes others Minores vel Minutae vulgarly the Small Tithes The Great such as Wheat Rye Hay c. The Small such as Min◠Annis Cumin c. And commonly with us here in England we compute Flax in the number of Small Tithes which is a Praedial Tithe as also Wool Milk Cheese Eggs Chicken of all kinds Lambs Honey Bees-wax and the like Vid. Lindw cap. de Decimis In Ancient times the Laity were so far from subtracting their Tithes as is the common practice of these daies that oft-times they would give more than was due or demanded and were so Conscientious in the payment thereof as at their death they usually bequeathed a Soule-Sceat to their Parochial Priest in lieu of any Tithes forgotten and at their Funerals caused their best Ox or Horse to be led with the Corps and as a Mortuary or Oblation given to the Priest in recompence of any Tithes which possibly in their life-time might have been omitted to be paid But in these latter Ages not regarding what S. Hierom says That Fraudare Eccelsiam est Sacrilegium all Artifices imaginable are put in practice to subduct the Tithes and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enacted 2. Covarruvias with other Canonists and Schoolmen holds That by the Moral Law the rate or proportion of Tithes is not necessarily to be the Tenth part of the Fruits which the more received Opinion holds to be both Erroneous and Mischievous and that by the Law of God and Nature no Custome deviating from the exact rate and proportion of the Tenth of the Fruits ought to prevail any longer than by the free and mutual consent of Parson and Parishioner For which reason it is supposed That the paying of a Halfpeny for a Lamb or a Peny for a Calf by such as have under Seven in one year is now become an unreasonable Custome in regard the value of such Lambs and Calves is now raised four times higher than in Ancient times This seems far remote from Tithes the very Quotity whereof seems to be Moral rather than Ceremonial or Judicial and not only allowed or approved but even commanded by our Saviour himself Yea by the very Law of Nature which is the ground of the Moral Law and long before the Levitical Tithes appear to be due in that Abraham paid it to Melchisedec And God himself who is the best Interpreter of his own Law calls the detention of Tithes Sacriledge And that Command of Christ affirming that Tithes ought to be paid of all even to the very Herbs spoken by him at the period of the Levitical Law ought not to be restrained only to the Priesthood of Aaron for it doth now remain in force as to Priests under the Gospel as that other part of the Moral Law Thou shalt not steal the withholding of Tithes being expresly interpreted Theft and Robbery by the Prophet And lest it should be thought a meer Human Interest or in the power of Man to alienate God himself hath vouchsafed to take Tithes upon his own account in his Ministers behalf These Tithes could not be meerly Ceremonial as some would have it for they prefigure nothing nor are they repealed by any one Text in the Gospel but reinforced as aforesaid so that whatever was commanded in the Old Testament and grounded on the Law of Nature and being not Repealed in the New must yet stand in force as a Duty of the Moral Law And if it be Objected That Tithes were not paid in the Primitive times of the Christian Church the Reason is not because they were not then due but because there was not then any such settled Order for things of this or the like nature in the Church 3. Wherefore all the Common Objections made against the payment of Tithes in the Christian Church may be reduced to one of these Four 1. That our Saviour gave no Command to his Apostles to take Tithes but rather on the contrary said Freely ye have received freely give Answ Yet our Saviour says These things speaking of Tithes ought you to have done And says The workman is worthy of his meat And St. Paul says The Labourer is worthy of his Reward Where hath Christ in totidem verbis forbidden Sacriledge wilt thou therefore commit it because he hath not in terminis terminantibus forbidden it Thou that abhorrest Idols dost thou commit Sacriledge 2 Tithes were not paid till about three hundred years after Christ as Tertullian Origen and S. Cyprian do testifie Answ These Fathers do withal acknowledge that during that time the Churches Maintenance was the Peoples free Contribution which probably might have continued to this day had not that Contribution in process of time turned into a Sacrilegious Century by Covetousness instead of a Commanded Decuma as a Duty Morally enjoyn'd 3. That Tithes came first into this Kingdom by the power of the Pope as by Pope
by the Court that this is a Pension for which Suit shall be in the Ecclesiastical Court 42. In the Case between Draiton and Cotterill against Smith for a Prohibition it was said by Coke Chief Justice That if the Parson sues in the Ecclesiastical Court for Tithes and the other pleads a Modus to the Vicar this Modus now can never come in question by this Suit between the Parson and him for Tithes due unto the Parson but this is to be questioned and determined there in the Ecclesiastical Court to whom the Tithes do belong whether to the Parson or to the Vicar And this hath been divers times Adjudged in this Court and in the Court of C. B. in Bushe's Case for Pankeridge-Church and it hath always been clearly held That if the Right of Tithes come into question between the Parson and the Vicar to which of them the same doth belong This is a Suit properly belonging to the Ecclesiastical Court to hear and determine the same and in such case they are not there to be ousted of their Jurisdiction And this being now a Question between the Parson and the Vicar to which of them Tithes did belong for which the Modus is alledged to be paid therefore no Prohibition is to be granted in this case though there be a Modus suggested to be paid unto the Vicar for all Tithes here due to the Vicar and Parson the Parson suing for the Tithes there as due unto himself and not unto the Vicar And so the Question is as touching the Right of Tithes between the Parson and the Vicar which is a Suit proper for the Ecclesiastical Court And this is to be observed for a sure Rule in such a Case never to have a Prohibition granted The Reason of this is because that the Modus suggested to be paid cannot come in question upon this Suggestion of this payment unto the Vicar but only the Right of Tithes to whom they belong whether to the Parson or to the Vicar and divers Judgments have been accordingly given in the like Case And so by the Rule of the whole Court a Prohibition was denied 43. Whether and how far and in what manner the Ecclesiastical Court may exercise its Jurisdiction in cognizance of a Modus Decimandi is at large argued and debated at the Bench in Harding's Case against Goseling where in a Prohibition to stay Proceedings in the Ecclesiastical Court upon a Suit there for Tithes where G. Libelled against H. for a Modus Decimandi being not paid and there H. alledged another Modus Decimandi which Allegation the Ecclesiastical Court refusing to admit a Prohibition was thereupon prayed in B. R. In this case Doderidge Justice said That the Modus Decimandi is as well due to the Parson as Tithe is at the Common Law and if the Parson do Libel in the Ecclesiastical Court for a Modus Decimandi as he may do and another Modus is there alledged and this refused the Ecclesiastical Court may try and determine this matter touching this Modus and no cause to grant a Prohibition for this Refusal But if the Ecclesiastical Court doth deny to admit the Allegation for the Modus upon this ground only because the practice of the Ecclesiastical Law and our Law do differ in the manner of Proof as for default of two Witnesses one being allowed at Common Law but not at the Ecclesiastical Law In this Case a Prohibition is grantable but otherwise the Ecclesiastical Jurisdiction may as well try the Modus Decimandi as the Right of Tithes But if a Parson doth Libel there for Tithes in kind and a Modus is alledged and there pleaded but refused to be admitted or allowed in that Case a Prohibition is grantable upon such Refusal Haughton Justice In this Case a Prohibition ought to be granted otherwise in such cases upon every small difference alledged in the Modus that Court may try and determine the validity of every Modus Decimandi which the Ecclesiastical Court cannot do by the Law for that Court is not permitted by our Law to try a Modus Decimandi and therefore that Court proceeding to try this Modus which is determinable by Common Law and not in the Ecclesiastical Court a Prohibition ought to be granted But Doderidge Contra No Prohibition is in this case to be granted for the Ecclesiastical Court may well try and determine this Modus by that Law The Libel being there originally for the Modus But if touching the Proof of this Modus as aforesaid the difference of proceedings between the two Laws one Witness being sufficient at the Common Law not so at the Ecclesiastical be the ground of the Refusal of the Allegation then a Prohibition is to be awarded so is 1 R. 3. and 10 H. 7. but if the Ecclesiastical Court only proceed to try the Modus for which the Libel was there this by Proof may well be there examined Croke Justice at this time delivered no opinion at all in this Case Afterwards this Case being moved again Doderidge If a Parson do Libel in the Ecclesiastical Court for a Modus whereas in truth there was no Modus but only a composition of late time between the Parson and the Parishioners to pay so much yearly for Tithes and not otherwise In this Case because that the Common Law and the Ecclesiastical do differ in the point of Prescription Ten years continuance being a good Prescription by that Law but not so by Ours in this case a Prohibition is grantable Houghton A Modus Decimandi is properly to be tried and determined by the Common Law and not in the Ecclesiastical Court for that these two Laws differ in many things as in point of proof of a Modus and in the point of Prescription Croke A Special Modus being Libelled for in the Ecclesiastical Court is there to be tried Doderidge If the Ecclesiastical Court doth refuse to allow of the Proof allowable at the Common Law a Prohibition lies to stay proceedings for Tithes there And where there is a Modus if they refuse to pay this the Parson may sue for this Modus in the Ecclesiastical Court and this is to be tried there But if in such case where there is a Modus if the Parson will Libel to have his Tithe in kind and the other shews there this Modus which they will not allow of a Prohibition lies and this shall be tried by the Common Law The Court declares That they would see the Suggestion and therefore by the Rule of the Court they were to make their Suggestion and to shew the same to the Court as they would stand unto it and in the mean time the Suit in the Ecclesiastical Court to be stayed 44. To conclude this Chapter it may not be impertinent to enquire when and how the Canon Law was introduced into this Realm of England In the Case of a Commendam that was Adjudged in Ireland it was observed That after the
Bishop of Rome had assumed or tooken upon him to be the Spiritual Prince or Monarch of all the World he attempted also to give Laws to all Nations as one real Mark or Signal of his Monarchy but they well knowing Quod ubi non est condendi authoritas ibi non est parendi necessitas did not impose their Laws at first peremptorily on all Nations without distinction but offered them timide precario And therefore he caused certain Rules in the first place to be collected for the Government of the Clergy only which he called Decreta and not Leges vel Statuta These Decrees were published in An. 1150. which was during the Reign of King Stephen And therefore what the Lord Coke observes in the Preface to the Eighth part of his Reports Quod Rogerus Bacon frater ille perquam Eruditus in Libro De impedimentis Sapientiae dicit Rex quidem Stephanus allatis Legibus Italiae in Angliam Publico Edicto prohibuit ne in aliquo detinerentur may probably be conjectured to be meant and intended of those Decrees which were then newly compiled and published Yet these Decrees being received and observed by the Clergy of the Western Churches only for the Eastern Church never received any of these Rules or Canons Kelw. Rep. 7 H. 8. fo 184 the Bishop of Rome attempted also to draw the Laity by degrees into obedience to these Ordinances and to that purpose in the first place he propounds certain Rules or Ordinances for Abstinence or days of Fasting to be observed as well by the Laity as the Clergy which were upon the first Institution thereof called by the mild and gentle name of Regationes as Marsilius Pat. lib. Defensor Pacis par 2. cap. 23. hath observed and thence it seems the Week of Abstinence a little before the Feast of Pentecost was called the Rogation-week that time of Abstinence being appointed at the beginning by that Ordinance which was called Rogatio and not Praeceptum vel Statutum Now when the Laity out of their devotion had received and obeyed these Ordinances of Abstinence then the Bishop of Rome proceeds further De una praesumptione ad aliam transivit Romanus Pontifex as Marsil Pat. there says and made many Rescripts and Orders per Nomen Decretalium which were published in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout Vid. Matth. Par. Hist mag 403. and these were made to bind all the Laity and Sovereign Princes as well as their Subjects in such things as concerned their Civil and Temporal Estates As that no Lay-man should have the Donation of an Ecclesiastical Benefice That no Lay-man should marry within certain Degrees out of the degrees limited by the Levitical Law That all Infants born before Marriage should be adjudged after Marriage Legitimate and capable of Temporal Inheritance That all Clerks should be exempt from the Secular power and others of the like nature But these Decretals being published they were not entirely and absolutely received and obeyed in any part of Christendom but only in the Pope's Temporal Territory which by the Canonists is called Patria obedientiae But on the other hand many of those Canons were utterly rejected and disobeyed in France and England and other Christian Realms which are called Patriae Consuetudinariae As the Canon which prohibited the Donation of Benefices per manum Laicam was ever disobeyed in England France the Kingdom of Naples and divers other Countries and Common-wealths And the Canon to make Infants Legitimate that were born before Marriage was specially rejected in England when in the Parliament held at Merton omnes Comites Barones una voce responderunt Nolumus Leges Angliae mutari quae hucusque usitatae sunt c. And the Canon which exempts Clerks from the Secular power was never fully observed in any part of Christendom Kelw. 7 H. 8. 181. b. which is one infallible Argument That these Ordinances had not their force by any Authority that the Court of Rome had to impose Laws on all Nations without their consent but by the approbation of the people which received and used them For by the same reason whereby they might reject one Canon they might reject all the other Vid. Bodin lib. 1. de Rep. cap. 8. where he saith That the Kings of France on the erection of all Universities there have declared in their Charters that they would receive the Profession of the Civil and Canons to use them at their discretion and not to be obliged by these Laws But as to those Canons which have been received accepted and used in any Christian Realm or Common-wealth they by such acceptation and usage have obtained the force of Laws in such particular Realm or State and are become part of the Ecclesiastical Laws of that Nation And so those which have been embraced allowed and used in England are made by such allowance and usage part of the Ecclesiastical Laws of England By which the interpretation dispensation or execution of these Canons being become Laws of England doth appertain sole to the King of England and his Magistrates within his Dominions and he and his Magistrates have the sole Jurisdiction in such cases and the Bishop of Rome hath nothing to do in the interpretation dispensation or execution of those Laws in England although they were first devised in the Court of Rome No more than the Chief Magistrate of Athens or Lacedemon might claim Jurisdiction in the Ancient City of Rome for that the Laws of the XII Tables were thither carried and imported from those Cities of Greece and no more than the Master of New-Colledge in Oxford shall have Command or Jurisdiction in Kings-Colledge of Cambridge for that the private Statutes whereby Kings-Colledge is governed were for the most part borrowed and taken out of the Foundation-Book of New-Colledge in Oxford And by the same reason the Emperour may claim Jurisdiction in Maritime causes within the Dominions of the King of England for that we have now for a long time received and admitted the Imperial Law for the determination of such Causes Vid. Cawdries Case Co. par 5. and Kelw. Rep. 184. a. Now when the Bishop of Rome perceived that many of his Canons were received and used by divers Nations of Christendom he under colour thereof claimed to have Ecclesiastical Jurisdiction in every Realm and State where these Canons were received and sent his Legates with several Commissions into divers Kingdoms to hear and determine Causes according to these Canons which Canons although neither the Pope nor his Ministers at the first venting and uttering thereof dared to call Laws Ne committerent crimen Laesae Majestatis in Principes as Marâ—il Pat. lib. Defensor pacis par 2. cap. 23. observes who also says That these Canons being made by the Pope Neque sunt humanae Leges neque divinae sed documenta quaedam Narrationes yet when he perceived that these Canons were received allowed