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
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
tradehant The Seventh was at Nice under Constantine and his Mother Irene where 367 Bishops were assembled against the Adversaries of Images whom they subjected to their Anathema 2 Of Particular Synods one was held in the Temple of the Apostles in Constantinople under the Patriarch Photius which was called the First and Second Another under Leo and Constantine in the most Famous Temple Sanctae Dei Sapientiae or Sanctae Sophiae which confirmed the Seventh Synod Another at Ancyra more ancient than the first Universal Synod Another at Caesarea more ancient than that at Ancyra Another at Gangra after the Nicene against Eustachius who despised Marriage and taught things not consonant to Ecclesiastical Tradition Another at Antioch a City in Syria where in truth were two Synods the one under Aurelianus against Paulus Samosatenus who said that Christ was meer Man the other under Constantius Son to Constantine the Great Another at Laodicea scituate in Phrygia Pacatiana Another at Sardica that when Constantius embraced the foresaid Sect his Brother Constans Emperour of Old Rome by his Letters threatning him with a War if he would not desist from perverting the Church his Answer was That he sought no other Doctrine than what was most agreeable to the Catholick Faith whereupon by their and the Bishop of Romes appointment 341 Bishops were Conven'd in a Synod which having established the power and authority of the Nicene Synod did constitute divers Canons for the Church Another at Carthage under Theodosius where 217 Bishops were assembled and with them the Popes Vicegerents this Carthage was part of Charchedon and that a Province of Africa 3 The Canons of the Fathers are taken according to the Roman computation out of the Epistles partly of Dionysius Alexandrinus partly of Petrus Alexandrinus partly of the Wonder-working Gregorius partly also out of the Epistles of Bazil or Basilius the Great partly out of the Epistle of Gregory or Gregorius Nyssenus to the B. of Melita partly out of the Responses of Timotheus Alexandrinus partly out of the Responses of the Constantinopolitan Synod to certain Monks Nicholaus the Patriarch being President partly out of the Epistles of Cyril or Cyrillus and partly out of the Epistles of Nicephorus the Patriach 4 The Canons of the Holy Apostles a book falsly ascribed to the Apostles are in number Eighty Five according to a modest Computation if you have any Faith to spare at least enough to believe the Church of Rome in that as in other Points infallible But the Canons indeed of the Apostles which are of Order and External Government do oblige as Dr. Taylor says the Conscience by being accepted in several Churches not by their first Institution and were fitted only to Times and Places and present Necessities For says he the Apostolical Decree of Abstaining from Blood was observed by more Churches than those of Syria and Cilicia to which the Canon was directed and the Colledge of Widows or Deaconesses derived it self into the manners of the Western Churches And the Apostles in their first Preaching and Conversation in Jerusalem instituted a coenobitick life and had all things in Common with Believers indeed no man was obliged to it Of the same nature were their Canons Counsels and Advices The Canon concerning Widows Let not a Widow be chosen under 60 years and yet Justinian suffered one of 40 years old to be chosen Novel 123. c. 12 13. And the Canon of the Apostles forbidding to eat things strangled is no where observed in the Western Churches of Christendom In the beginning of the Fourth Century above 1300 years since we find our Bishops British Bishops at the Councils of Arles Nice Sardis and Ariminum a clear Evidence of the flourishing state of Christianity so long since in this Island At Arles in France conven'd touching the Donatists appeared for the Britains Eborius Bishop of York Restitutus Bishop of London Adelfius Bishop of the City called the Colony of London which some suppose to be Colchester others Maldon in Essex Sacerdos a Priest both by Name and Office Arminius a Deacon An. 313. At the Synod of Nice in Bithynia An. 325. to suppress Arrianism were British Bishops present as Athanasius and Hilary Bishop of Poictiers affirm At the Council of Sardis in Thracia conven'd by Constanitus and Constans Sons to Constantine the Great the British Bishops were likewise present when the Arrians were condemn'd and Athanasius acquitted And at the Council of Ariminum in Italy the British Bishops were also present who according to Athanasius were about An. 360. summoned to divers Forein Councils in remote parts As also here at home in and after the Seventh Century were divers particular Councils and Synods the first whereof according to Stapleton out of Bede called The first of the English Nation was conven'd at Hertford by Theodorus Archbishop of Canterbury who succeeded Deusdedit in that See in this Council the Observation of Easter was settled according to the Romish Rite yet whosoever will have this Council to be as aforesaid The first of the English Nation must understand it the First whose Canons are compleatly extant Bede lib. 4. c. 5. About the year 740 Ethelbald King of Mercia with Cuthbert Archbishop of Canterbury called a Council at Cliffe in Kent the acts of which Synod were 31 Canons among which is was inter alia Ordain'd That Prayers should publickly be made for Kings and Princes But some few years before this the said Theodorus held a Synod or Council of Bishops at Hatfield by authority whereof he divided the Province of Mercia which Sexwolphus then governed alone into five Bishopricks viz. to Chester Worcester Lichfield Cedema in Lindsey and to Dorchester In the year 692 a great Council was held at Becanceld by Withred King of Kent and Bertuald Archbishop of Britain wherein many things were concluded in favour of the Church About the same time a Council was held at Berghamsteed by the said Withred King of Kent at which Council Bishop Wilfrid was restored to York whence he departed for Rome upon the endeavours which Theodorus Archbishop of Canterbury had used to have that Diocess of York divided In the year 801 Ethelard the Archbishop called a Synod at Clivesho in Kent where by power from the Pope he rivited that 's the word the Archbishoprick into the City of Canterbury There was likewise at Celichyth an eminent Council under Wolphred who succeeded Ethelard Archbishop of Canterbury But nigh one hundred years before this viz. about the year 709 a Synod was assembled at Alncester in Worcestershire to promote the building of Evesham-Abbey And not long after another Synod was called at London to introduce the Doctrine of Image-Worship into England now first beginning to appear in the publick practice thereof Also above one hundred years before that viz. about the year 601. Augustine by the aid of Ethelbert King of Kent called a Council of Saxon and British Bishops to meet in the Confines of the Mercians and
for the visitation of the Ecclesiastical State and Persons and for-Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this Parliament be united and annexed to the Imperial Crown of this Realm This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed so that the Act of Repeal being repealed the said Acts of H. 8. were implicitely revived whereby it is declared and enacted That the King his Heirs and Successors should be taken and accepted the only Supream Head in Earth of the Church of England and should have and enjoy annexed to the Imperial Crown of this Realm as well the Title and style thereof as all Honours Dignities Prebeminencies Jurisdictions c. to the said dignity of Supream Head belonging c. By which Style Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction which had been formerly usurped by the Bishop of Rome And this is that Supremacy which is here meant and intended 3. The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1 and 2 P. M. c. 8. but it is also a reviver of divers Acts asserting several branches of the Kings Supremacy and re-establishing the same it doth likewise not only abolish all Forreign Authority but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction And then further Enacts to this effect viz. That all Ecclesiastical persons of what degree soever and all and every Temporal Judge Justice Mayor or other Lay or Temporal Officer or Minister and every other person having Fees or wages from the Crown within this Realm or the Dominions thereof shall upon his Corporal Oath testifie and declare in his Conscience That the Kings Majesty is the only Supream Governour of this Realm and of all other his Majesties Dominions and Countries as well in all Spiritual or Ecclesiastical things or causes as Temporal And that no Forreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction power superiority preheminence or authority Ecclesiastical or Spiritual within this Realm And therefore doth utterly renounce and forsake all Forreign Jurisdictions powers superiorities and authorities and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty his Heirs and lawful Successors and to his power shall assist and defend all Jurisdictions priviledges preheminencies and authorities granted or belonging to the Kings Majesty his Heirs and Successors or united or annexed to the Imperial Crown of this Realm The practices of the Romanists in the 4th year of Queen Elizabeth and the danger thereby threatning both the Queen and State occasioned her to call a Parliament 12. Jan. An. 156 2 3 which passed an Act For assurance of the Queens Royal power over all Estates and Subjects within her Dominions By which Statute was enacted The Oath of Supremacy as also what persons were obliged to take it and who should have power to administer the same And this was both the original and the cause of that Oath By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath as also the penalty of maintaining a Forreign Authority as likewise what other persons than the fore-mentioned shall be obliged to take the said Oath which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1. 4. The King within his own Territories and Dominions is according to Bracton Dei Vicarius tam in Spiritualibus quam Temporalibus And in the Ecclesiastical Laws of Edward the Confessor the King is styled Vicarius summi Regis Reges regunt Ecclesiam Dei in immediate subordination to God Yea the Pope himself Eleutherius An. 169. styled King Lueius Dei Vicarius in Regno suo 5. The Supremacy which heretofore the Pope did usurp in this Kingdom was in the Crown originally to which it is now legally reverted The Kings Supremacy in and over all Persons and Causes Ecclesiastical within his own Dominions is essentially inherent in him so that all such Authority as the Pope here once usurped claiming as Supream Head did originally and legally belong to the Crown and is now re-united to it by several Statutes as aforesaid On this Supremacy of the King as Supream Head Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates for one Reason that he gives is because after a Definitive Sentence the Pope as Supream Head by the Canon Law used to grant a Commission Ad Revidendum And such Authority as the Pope had claiming as Supream Head doth of right belong to the Crown Quia sicut Fontes communicant aquas fluminibus cumulative non privitive sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis vigore Statuti in hujusmodi Casu editi cumulative non privitive By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained That whoever shall affirm that the Kings Majesty hath not the same Authority in Causes Ecclesiastical that the godly Kings had among the Jews and Christian Emperors in the Primitive Church or impeach in any part his Regal Supremacy in the said Cases restored to the Crown and by the Laws of this Realm therein established shall be Excommunicated ipso facto and not be restored but only by the Archbishop after his repentance and publick revocation of those his wicked Errors 7. The King being next under God Supream Governour of the Church of England may Qua talis redress as he shall see cause in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms The Pope as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes which he called Spiritual Now the King as Supream hath the same power in himself within his own Realms legally which the Pope claimed and exercised by Usurpation Eadem praesumitur mens Regis quae est Juris The Kings immediate personal ordinary inherent power which he executes or may execute Authoritate Regia suprema Ecclesiastica as King and Supream Governour of the Church of England is one of these Flowers qui faciunt Coronam Nor is the Kings immediate power restrained by such Statutes as authorize inferiour persons The Lord Chief Justice Hobart asserts That although the Stat. of 25 H. 8. 21. doth say That all Dispensations c. shall be granted in manner and
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-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
And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose where it is recited that the Bishop of Rome had deceived and abused the Subjects of the Crown of England pretendig and perswading them That he had full power to Dispence with all human Laws Vses and Customes of all Realms in all Causes which be called Spiritual which matter hath been usurped and practised by him and his Predecessors for many years to the great derogation of the Imperial Crown of England For whereas the said Realm of England recognizing no Superiour under God but the King hath been and yet is free from subjection to any mans Laws but only to such as have been devised made and Ordained within this Realm for the weal of the same or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty and by their own consent to be used among them and have bound themselves by long use and custome to the observance of the same not as to the observance of the Laws of any Foreign Prince Potentate or Prelate but as to the accustomed and ancient Laws of this Realm originally established as Laws of the same by the said sufferance consent and custome and not otherwise it standeth with natural equity and good reason that all such human Laws made within this Realm or induced into this Realm by the said Sufferance Consent and Custome should be Dispenced with abrogated amplified or diminished by the King and his Parliament or by such persons as the King and Parliament should authorize c. Vid. 21 H. 7. 4. a. where it is said That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded that the King of England and not the Pope before the making of the said Statute of Faculties might de jure Dispence with the Ecclesiastical Law in that and other cases For although many of our Ecclesiastical Laws were first devised in the Court of Rome yet they being established and confirmed in this Realm by acceptance and usage are now become English Laws and shall no more be reputed Roman Canons or Constitutions As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia Haec Regula says he ubique in Regno Franciae est recepta est Lex Regni effecta observatur tanquam Lex Regni non tanquam Papae Regula Papa eam revocare non potest The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical For whereas the Law of the Church is That every Spiritual person is Visitable by the Ordinary King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battell from the Visitation and Jurisdiction of the Ordinary in these express words Sitque dicta Ecclesia libera quieta in perpetuum ab omni subjectione Episcoporum quarumlibet personarum dominatione sicut Ecclesia Christi Cantuariensis c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis Ecclesiasticae Edit 1534. where that whole Charter is recited at large The like Charter was granted to the Abbey of Abingdon by King Kenulphus 1 H. 7. 23 25. and Cawdry's Case Co. par 5. fo 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee to have and retain the Benefice in perpetuity as appears in Grendon's Case Plow Com. 503. In which Act the King by the Common Law shall be always Actor not only as Supream Patron but also as Supream Ordinary as is also observed in Grendon's Case For the King alone without the Pope may make Appropriations 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum and Malum in se in 11 H. 7. 12. a. it is held That the King may dispence with a Priest to hold Two Benefices and with a Bastard that he may be a Priest notwithstanding the Ecclesiastical Laws which are to the contrary And as he may dispence with those Laws so he may pardon all Offences contrary to these Laws and his Pardon is a barr to all Suits pro salute Animae or reformatione morum and all Suits ex Officio in the Ecclesiastical Court Hall's Case Coke 5. par fo 51. In all Faculties or Dispensations for the holding of Two Benefices granted at the Court of Rome there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons and of the right of the King by name express where the Patronage belonged to him otherwise the Faculty was void For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature And if such a particular Non obstante were not added in the Faculty then there was inserted another Clause viz. Dummodo Patronorum expressus accedat Consensus also by another Clause Authority was always given to the Official or Archdeacon or other Ecclesiastical Minister to put him to whom the Faculty is granted into possession of the Benefice cum acciderit And because by the Canon Law the Patron 's consent was ever requisite in a Commenda for that reason in every Faculty or License granted by the Pope to make a Permutation Union or Appropriation of Churches these words were ever added viz. Vocatis quorum interest which chiefly intends the Patron And which Union and Approbation shall not according to the Common Law be made without the Patron 's assent Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case Plow Com. 498. a. A Faculty or Dispensation is of such force that if a Clerk be presented to a Benefice with Cure and be Admitted Instituted and Inducted into the same so that the Church is full of him if afterwards he be presented to another Benefice Incompatible or elected to a Bishoprick and before he is Instituted to the second Benefice or be created Bishop he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo that is for his life that Faculty or Dispensation shall be of such effect that the former Benefice shall not be void by acceptance of the Second or by promotion to the Bishoprick but he shall remain full and perfect Incumbent of the first Benefice during his life In the time of H. 6. when Henry Beaufort Great Uncle to the King being Bishop of Winchester was made a Cardinal and after that purchased from the Pope a Bull Declaratory that notwithstanding he were made Cardinal yet his Bishoprick of Winchester should not be void but that he might retain the same as before yet it was held That the See of Winchester was void by assuming the Cardinalship which
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
Church so erected is by the Consecration thereof actually delivered up and made over as it were to God himself it thenceforth ceases to be of any mans property or of any Human Dominion for Quod Divini Juris est id nullius est in bonis § nullius Inst de Rer. Divis And by what is Recorded in the Life of Bishop Vlrick it should seem as if the Right of Presentation originally were in the Diocesan for the Author there saith That if any Erected a Church the Bishop consented Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret c. And after the Endowment and Consecration thereof the care of the Altar was committed by him to the Priest and the Advowson firmly conveyed to the lawful Heir by the putting on a Robe Author vitae Udalrici c. 7. p. 52. Edit August Vindel. 1595. But the Bishops understanding this as a matter more of Care than of Power as appears by these moderate expressions of Nominare Praesentare or Commendare they were willing the Lay-Patron for his better encouragement to such Pious works should share with them in this priviledge which Panormitan calls Jus â—onorificum yet so as that this transference of the Bishops unto Lay-Patrons should still remain under such a Limitation as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason if we consider what a paucity of publick Churches there then were insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field as is reported of our own Ancestors in the Peregrination of Wilibald Sic mos est Saxonicae gentis c. non Ecclesiam sed Sanctae Crucis Signum c. diurnae Orationis sedulitatem solent habere Hodaeperic Hierosolym Wilibald Extat ad Canisium Tom. 4. Antiq. Lect. par 2. pag. 486. Edit Ingolst 1603. Yea and where perhaps some Churches were many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alured's daies which were of so mean a structure that frequently the wind entering per parietum rimulas did blow out the Candles set before the Reliques which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making Lanthorns Ex Lignis Bovinis Cornibus 4. In the Infancy of the Christian Faith in this Island under the Saxons several particular Lords of Grand Seignories Regis ad Exemplum erected particular Churches and having Endowed them with Lands reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same And this they did in imitation of those Kings who then Reigning here erected Cathedrals Abbies Priories Churches c. 5. An Advowson being a right of Presentation as aforesaid reserved by a Founder to himself his Heirs and Successors is applicable to other Ecclesiastical Foundations as well as those of Churches as appears by the several Quare Impedits brought on several occasions so that albeit it hath been said that by the Grant of a Church the Advowson passed and when he gave the one he gave the other yet is the word Advowson not improperly applicable to any thing wherein a Quare Impedit will lie And he in whose Right such Presentation is rested is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae because as the Constitution hath it tueri defenders Ecclesiam ejus jura tenetur ad instar Advocati qui in Judicio Causam alicujus defendit Lindw Provin Const de Foro Comp. cap. Circumspecte ver Advocatus Which every Patron is obliged to do whence Patronus and Advocatus Ecclesiae are in effect Synonymous yet in Lindwood we have the Question put whether there be any difference inter Patronum Advocatum Ecclesiae Lindw Const Prov. de homicidio cap. Sacri Gloss ibid. Where though the prevailing opinion be for the Negative yet you will also there find very Orthodox Authority for the contrary and that Advocatus intelligitur non pro Patrono sed pro Defensore Ecclesiae Gloss ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici who being Doctor of Laws Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions sent as his Embassador to the Crowns of Spain and Portugal and at his Return about An. 1422. compiled what now is extant to his Immortal Memory and Dedicating the same to the said Archbishop it was after about An. 3505 being first revised by Wolfgangus Hopylius printed at Paris at the cost and charges of William Bretton Merchant of London Mention hereof is here made in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical Abridgment and that rather in the midst of this Subject touching Advowsons as presuming that for the reason aforesaid a Quare Impedit will not lie in the case of this digression 6. The Right of Patronage is it seems by the Common Law a real Right fixed or vested in the Patron or Founder in the Church wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements or any Freehold whatever And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance For at the first Creation of a Mannor if Lands were given to erect a Church thereon the Advowson thereof became appendant to that Mannor and reputed as parcel thereof which being Temporal the other became so also as an Accessary to the Principal for which reason such an Advowson passeth by the Grant of the Mannor cum pertinentiis Yea it hath been adjudged That by the Grant of a Mannor without making any mention of the Advowson the Advowson also passed because it was parcel of and appendant to the Mannor And it hath been ever held That by the Common Law an Advowson is a Temporal Inheritance for that it lieth in Tenure and may be holden either of the King or of a Common person and hath been held of the King in Capite or in Knights Service And were a Quare Impedit hath been brought the Plaintiff hath counted that the Defendant held the Advowson of him by Homage and Fealty And it hath been agreed that an Advowson doth lie in Tenure and that the Lord may distrain in the Glebe-Lands for Rents and Services the Patron 's Cattel if any be there found upon the Land but not the Cattel of a Stranger 7. Other Reasons it seems there are at the Common Law which prove That an Advowson is a Temporal Inheritance for that a Writ of Right of
of Advowson of a Church he may only say that he was seized as of Fee and not in his Demesn as of Fee whether it be an Advowson in Gross or Appendant which Appendancy is held to be for the most part by Prescription and must relate to such things as are in their own nature of a perpetual continuance for which reason it is That Advowsons cannot be said to be Appendant to Rents Services and the like because such things are extinguishable And although an Advowson be not properly said to be a Demesn yet it may be Appendant to a Demesn as of Lands or things Corporeal and Perpetual and therefore as supposed not to a House of habitation meerly quatenus such yet to the Soyl whereon the House is erected whereby the Law which hath the clearest prospect of Casualties at a distance hath provided that the Advowson shall stand though the House fall but an Advowson Disappendant and in Gross which in man hath alone and not by reason of any other thing but severed from the Lands to which it was Appendant such an Advowson is exempt from divers prejudicial Incidents which the other viz. the Appendant cannot well avoid And where a Subject or Common person hath an Advowson Appendant to a Mannor and there be an Usurpation upon him by a Presentation made by a Stranger whose Clerk is in for Six months though this makes the Advowson of such Common person Disappendant to his Mannor yet it is otherwise in case of the King who may grant the Advowson notwithstanding such Usurpation for a man cannot put the King out of possession either by Presentation or Usurpation as hath been Adjudged Nor doth the King's Presentation by Lapse sever the Advowson from the Mannor or cause it to become disappendant as in Gawdy's Case against the Archbishop of Canterbury and Others was likewise Adjudged in which Case it was also said by Habard Chief Justice That neither doth a wrongful Collation of the Bishops make any Disappendancy nor any binding Plenarty against the true Patron but that he may not only bring his Quare Impedit when he please but also Present upon him seven years after Also whereas it was said before That an Advowson cannot be Appendant to things Extinguishable as to Rents Services and the like so it seems at the Common Law an Advowson in Possession cannot be Appendant to a Reversion expectant upon an Estate for life for the Case was The King seized of a Mannor with an Advowson Appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum una cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet the Advowson passed not Finally whereas also it hath been Adjudged as aforesaid that the King cannot be put out of possession either by Presentation or Usurpation this seems to refer only as to the Kings Advowson and not as to his present Presentation for the Opinion of Sir H. Hobart Chief Justice is That although the King may be dispossessed of his present Presentation he cannot be so of his Advowson and therefore he may still grant it notwithstanding the Usurpation as was Judged in a Writ of Error upon a Judgment given to the contrary between the King and Campion for the Vicarage of Newton Valence 23. A Donative in the Kings Gift may be with Cure of Souls as the Church of the Tower of London is a Donative in the Kings Gift with Cure as in the Case of Fletcher and Mackaller where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money and per Curiam it well lies 24. The Queen hath the Advowson of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Justices that the Advowson passeth not for that the Vicarage is another thing than the Advowson of the Vicarage The Queen seized of a Mannor to which an Advowson was appendant granted the Mannor cum Advocatione Ecclesiae the Church being then void It was Adjudged the Avoidance did not pass but the Queen should Present pro hac vice And in the Queen and Hussie's Case it was Resolved That a double Presentation would not put the Queen out of possession if she hath Right And in Stephens and Clarks Case it was Resolved That the Grant of the next Avoidance to one during the Avoidance is void in Law CHAP. XX. Of Appropriations 1. The great Antiquity of Appropriations a Conjecture of their Original whether Charles Martell was the occasion thereof they were prohibited in England anciently by the Pope whether they can be otherwise than by the King or some Authority derived from him 2. How the End and use of Appropriations is changed at this day from what it was in the Original Institution thereof 3. Appropriators why called Proprietarii The care of R. 2. in making Provision for thé Vicar in case of Appropriations Requisites of Law to make an Appropriation 4. A further discovery of the Original use and ends of Appropriations and under what qualifications 5. Whether Appropriations were anciently grantable to Nunneries 6. Appropriations not now to be questioned as to their Original 7. A Vicarage endowed may be Appropriated but not to a Parson 8. Three considerable Points of Law resolved by the Justices touching Appropriations 9. Whether an Advowson may be Appropriated without a Succession Appropriations usually were to Corporations or Persons Spiritual 10. How a Church Appropriate may be disappropriated 11. In Appropriations the Patron and his Successors are perpetual Parsons 12. Whether an Appropriation of a Parsonage without endowment of the Vicarage be good Also whether an Appropriation may be made without the Kings License 1. IT is a question at this day undecided Whether Princes or Popes were the first Authors of Appropriations the practice whereof by each of them is of great Antiquity but whether in imitation of Charles Martell's Sacrilegious President the first by whom Tithes were ever violated in the Christian World is but a Supposition rather than any Assertion among Historians It was long since Traditionally Recorded in History that about the year 650. when the said Charles Martell Father of Pipin after King of France in defence of his Country against the Hunnes Gothes and Vandals had slain no less than 34500 of those Infidel Sarazens in one Battel he did not restore to such of the Clergy of France their Tithes as from whom under a fair pretence of supporting the charges of the War thereby he had upon a Promise of Restitution thereof so soon as the War should cease obtained the same but instead thereof gratified such of the Nobility as had assisted him in the War by the grant thereof to them and their Heirs for ever But whether this Sacriledge if it be true had
the First were vnder the annual value of Eight pounds or sine cura And what persons are qualified either for the Granting or receiving Pluralities appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King Queen and Prince and other the King's Children for which reason they may retain as many Chaplains as they please and each of them qualificable by a Dispensation for Plurality But if either of the King's Chaplains be Sworn of his Majesties most Honourable Privy Council such may purchase a Dispensation to hold Three Benefices with Cure of Souls The Persons specially qualified by Dispensations for Pluralities are either 1 Such as are retained as Chaplains to Persons of Honour Or 2 Such as are qualified thereto in respect of their Birth Or 3 Such as are dignified with some certain Degrees in either of the Universities of this Kingdom In reference to the first of these every Archbishop and Duke may have Six Chaplains Marquess and Earl Five every Viscount and other Bishop Four Lord Chancellor Three Knight of the Garter Three Baron Three Dutchess Marchioness Countess and Baroness being Widows Two Treasurer and Controller of the Kings House Two the Kings Secretary and Dean of his Chappel the Kings Almner and Master of the Rolls Two the Chief Justice of the Kings Bench and Warden of the Cinque Ports One In reference to the Second qualification viz. By Birth the Brothers and Sons of all Temporal Lords and of Knights born in Wedlock may purchase Dispensations to hold Two Parsonages c. with Cure of Souls In reference to the Third all Doctors and Batchelors of Divinity Doctors and Batchelors of Law Presented to any of these Degrees not by grace only but by any of the Universities of this Realm may purchase and hold as aforesaid Vid. Statute 21 H. 8. cap. 13. 4. Although by the Letter of which Act the First Living is not void until Induction into the Second the words being If the party be Instituted and Inducted in possession of the Second Living that then the first shall be void yet to avoid the great inconveniency as Sir Simon Degge observes in his Parsons Counsellor that otherwise would ensue it has been held That the First Living is void upon the bare Institution into the Second and so it should seem the Law was before the making of this Act where the party had no Dispensation The sufficiency of qualification for Plurality relates as well to the Dispensation as to the Person for if the Dispensation after its being had from the Master of the Faculties be not confirmed under the Great Seal of England other qualifications will not suffice Nor are the supernumerary Chaplains of any person of Honour retained by him above the Number allowed by the Statute qualified for Plurality Co. 4. 90. B. versus the Bishop of Gloucester and Saveacre Anders More 561. The death attainder degradation or displacing of a Chaplains Lord or his discharging his Chaplain unqualifies him for a Plurality of incompatible Livings otherwise of the Chaplain of a Dutchess Marchioness Countess or Baroness in case of After-marriage A double Capacity in one and the same person of Honour to qualifie his Chaplains doth but capacitate him to qualifie his Number of Chaplains only according to his best qualification A Person of Honour having retained his full Number of Chaplains and discharging them after their preferment may not during their Lives qualifie others 5. The Question was formerly put Whether the 8 l. yearly value intentioned in the Statute of 21 H. 8. c. 13. shall be understood according to the Taxed value in the Kings Books or according to the very true value of the Benefice Mr. Hughes in his Parsons Law reports a Case in King James's time wherein this Question was debated pro con the Judges equally divided the Case for difficulty and variance of Opinion adjourned and afterwards as he there speaks de auditu by order of the King compounded In that Case Two Presidents it seems were shewed in proof of that Opinion which inclined to have it taken according to the very value of the Benefice notwithstanding when the same point came again several years after into question the Court then seemed to incline against the Opinion which was for the very value of the Benefice But says he the Case was not then resolved or adjudged but remaineth a Question undetermined Quaere the Law Foster and Walmesley Justices held the value should be taken according to the Taxed value as in the Book of First-Fruits but Warburton and Coke Chief Justice Contra. It hath been Resolved in Holland's Case and likewise in Digby's Case Rep. 4. and often before since the Council of Lateran An. Do. 1215. That if a man have a Benefice with Cure whatever the value be and is Admitted and Instituted into another Benefice with Cure of what value soever having no Qualification or Dispensation the First Benefice is ipso facto so void that the Patron may Present another to it if he will But if the Patron will not Present then if under the value no Lapse shall incurr untill Deprivation of the first Benefice and Notice But if of the value of eight pounds or above the Patron at his peril must Present within Six months by the Statute of 21 H. 8. And in that Case of Digby it was adjudged That when a man hath a Benefice with Cure above eight pounds and afterwards taketh another with Cure and is Presented and Instituted and before Induction procures the Letters of Dispensation that this Dispensation comes too late For by the Institution Ecclesia plena consulta existit against all persons except the King for every Rectory consisteth upon Spiritualty and Temporalty And as to the Spiritualty viz. Cura animarum he is compleat Parson by the Institution for when the Bishop upon Examination had admitteth him able then he doth Institute him and saith Instituo te ad tale Beneficium habere curam animarum of such a Parish accipe curam tuam c. Vide 33 H. 6. 13. But touching the Temporalties as the Glebe-Lands c. he hath no Freehold in them until Induction For by the General Council of Lateran Anno Dom. 1215. it appeareth That by the acceptance of two Benefices the first is void Aperto jure for upon this Council are the Books of the Common Law in this Caâ—e founded And it was in this Case Resolved That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Institution is an Acceptance by the Common Law A man was Presented to a Church with a Vicarage endowed the Parson accepted of a Presentation to the Vicarage without Dispensation Whether this were a Plurality by the Canon Law and by the Statute of 21 H. 8. was the Question Hobart Chief Justice was of Opinion That
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
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
to Spiritual persons for their necessary maintenance If the original of a Parish in the 2 former acceptations were a device of the ancient Rom. Bish from them derived to other Nations then probably from the inconveniencies thereof might be the beginning of a Parish as it is taken for suâ—h a part of the Diocess as is limited to some Residentiary Incumbent allowed by the Bishop and maintained by the Church-dues in his own Right which consideration of a Parish seems most of all agreeable with those which we now have and were in use with us before Edgar's daies as appears by the Saxon Laws of that time 9. The Ancient Kings and Sovereign Princes of this Realm both before and since the Conquest have ever made special Provision for the due payment of Tithes unto the Church and that ever since there was any Church-Government in this Land witness that Law made before the Conquest by King Aethelstane That every man should pay his Tithes in manner as Jacob did that is of all that God should give him The like did King Edgar and King Edmund command on pain of Excommunication And about the Seventh Century Ina King of the West-Saxons made a Law That the Church-Sceat be paid at Martlemass on pain of paying twelve times as much in case of Refusal this Church-sceat Fleta interpreteth Church-seed and therefore calls it Certa mensura bladi Tritici c. Others read Church-scet that is the Church-shot or Church-due Also the said King Aethelstane in the Ninth Century made a Law by the Advice of Walfehelme his Archbishop and his other Bishops Commanding all his Reeves throughout all his Kingdom in the Lords name and of all Saints that in the first place they pay the Tithe of his own Revenues as well in Living Cattel as the yearly Fruits Likewise King Edmund at a Synod holden in London at which Oda and Wulâ—â—tan Archbishops and many other Bishops were present made a Law Commanding all Christian men by their Christianity to pay Tithes Church-sceat and Almes-fee if any refuse to do it let him be accursed This Alms-fee or Alms-money was that which was called the Peterpence for when Ina the West-Saxon King went in Pilgrimage to Rome he made it a Law to his Subjects That every House should pay a peny to the Pope and this was to be tendred at St. Peters-tide as appears by Edgar's Law nu 4. In the Laws also of King Edgar it was Decreed in the first place That Gods Church should have all her Rights and that every man should pay his Tithes to the Elder Minister or Mother-Church where he heareth the Word cap. 2. of Edgar's Laws And in the Eighth Chapter of King Rnutes Laws it is Ordained That care be taken rightly to pay Gods Rights every year viz. the Plough-Alms fifteen Nights after Easter the Tithe of young Cattel by Whitsontide and the Fruits of the Earth by Allhallentide otherwise the Kings Reeve and the Bishop may take the Tenth part whether he will or no and give it to the Minister whereunto it belongeth Also by the Laws of Edward the Confessor nu 8. 9. it was Decreed particularly that Tithes should be duly paid De Garba Grege Equarum Pullis Vaccis Vitulis Caseo Lacâ—e Vellis Porcellis Apibus Bosco Prato Aquis Molendinis Parcis Vivariis Piscariis Virgultis Hortis Negotionibus in a word omnibus rebus quas de derit Dominus which Decree was afterwards ratified by the Conquerour Afterwards King Edward the First at the Petition of the Clergy established the Articles of the Clergy which his Son Ed. 2. Confirmed by his Letters Patents under the Great Seal and by Consent of Parliament at the Petition of the Clergy in the Ninth year of his Reign And by the Statute of 1 R. 2. cap. 14. it is Acknowledged That the Cognizance of Tithes of right doth and of Ancient time was wont to pertain to the Spiritual Court Also the Cistercians who had purchased Bulls from the Pope to be discharged of Tithes in the Second year of H. 4. were by Act of Parliament after reduced to the state they were in before And in the Fifth year of H. 4. it was Ordered That such as held Lands belonging to any Friers-Aliens should pay all manner of Tithes to the Parsons and Vicars of the Parishes wherein the same were notwithstanding their being seized into the Kings hands or any Prohibition to the contrary For before the dissolution of Monasteries c. by King H. 8. Lay-men were not capable thereof nor indeed after the Dissolution notwithstanding the Statute of 27 H. 8. c. 20. could the People be well brought to pay their Tithes to the Lay-Purchasers thereof not qualified to Sue for the same until the Statute of 32 H. 8. c. 7. enabled them to Convent the Refusers before the Ordinary or other competent Judge according to the Ecclesiastical Laws without the Reserve of any cognizance for the Temporal Judge therein otherwise than as to what refers to the Inheritance or Freehold of such Tithes or in case of disseisin thereof which was not only ratified and confirmed by a subsequent Statute made in the time of Edward the Sixth but it was also then Enacted That the Tithes should be paid as the Usage or Custome had been within forty years next before and that under certain penalties and forfeitures in case of detention or substraction and of treble Dammages in some cases the party so subtracting to be prosecuted in the Spiritual Court according to the Kings Ecclesiastical Laws 10. Sir Simon Degge in his late useful Treatise entituled The Parsons Counsellor par 2. or Law of Tithes cap. 2. discovers a vulgar Error touching the Original Settlement of the Parochial Right of Tithes For whereas it is frequently said in the Books of the Common Law That before the General Council of Lateran every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or Religious person he pleased and that the Parochial Right thereof was settled by the said Council he says there is not any Canon of that Council to any such purpose whereby the Parochial right of Tithes was settled Nor could it then be for that the said Council was in An. 1179. but the Parochial Right of Tithes was not settled till the year 1200. and then not by any Canon but by a Decretal Epistle of Pope Innocent the Third a Brief whereof he there inserts out of Mr. Selden and Sir Ed. Coke If this were an Error in them it was so also in Lindwood c. locat conduct verb. portion But possibly not such an Error in either as is conceived for whether the Canon for the settling of Parochial Right of Tithes made in the Council of Lions 1274. were an Original Decree or only a Confirmation of some former Canon to the same effect or not clear it is that the said Decretal Epistle of P. Innocent 3. obliged only the Province of
Immunitatibus gaudeant quibus Milites Burgenses Parliamenti Ant. Brit. fo 284. nu 30. 6. The Jurisdiction of the Convocation in this Realm though relating to matters meerly Spiritual and Ecclesiastical yet is subordinate to the establish'd Laws of the Land it being Provided by the Statute of 25 H. 8. c. 19. That no Canons Constitutions or Ordinances shall be made or put in execution within this Realm by Authority of the Convocation of the Clergy repugnant to the Prerogative Royal or to the Customes Laws or Statutes of this Realm To the same effect was that of 9 Ed. 1. Rot. Parl. Memb. 6. Inhibitio Archiepiscopo omnibus Episcopis aliis Praelatis apud Lambeth Conventuris ne aliquid statuant in praejudicium Regis Coronam vel dignitatem For although the Archbishop and the Bishops and the rest of the Clergy of his Province Assembled in a Synod have power to make Constitutions in Spiritual things yet they ought to be Assembled by Authority of the King and to have as aforesaid his Royal Assent to their Constitutions which being had and obtained the Canons of the Church made by the Convocation and the King without Parliament shall bind in all matters Ecclesiastical as well as an Act of Parliament as was Resolved in Bird and Smiths Case Although the Saxons who founded and endowed most of our Churches and made many good Laws in reference to the Jurisdiction power and priviledges thereof yet the Royal Prerogative with the Laws and Customes of the Realm were ever so preserved as not to be invaded thereby King AEthelbert the first Saxon King King Ina AEthelstane Edmund Edgar and King Kanute all these made Laws in favour of the Church but none of them ever entrenched on the Prerogative of the Crown or on the Laws or Customes of the Realm nor any of those ancient Church-Laws ever made without the Supream Authority to ratifie and confirm the same 7. The Laws and Constitutions whereby the Ecclesiastical Government is supported and the Church of England governed are the General Canons made by General Councils also the Arbitria Sanctorum Patrum the Decrees of several Archbishops and Bishops the Ancient Constitutions made in our several Provincial Synods either by the Legates Otho and Othobon or by several Archbishops of Canterbury All which by the 25 H. 8. are in force in England so far as they are not repugnant to the Kings Prerogative the Laws and Customes of England Also the Canons made in Convocations of Later times as Primo Jacobi Regis and confirmed by his Regal Authority Also in some Statutes Enacted by Parliament touching Ecclesiastical affairs together with divers Customes not written but in use beyond the memory of Man and where these fail the Civil Law takes place Among the Britain Councils according to Bishop Prideaux his Synopsis of Councils Edit 5. those amongst the rest are of most remark viz. At Winchester in King Edgars time under Dunstane at Oxford by Stephen Langton Archbishop of Canterbury at Claringdon under King Henry the Second The Council under King Edward the 6 th in which the 39 Articles of the English Confession was concluded and confirmed The Synod under the same King from which we receive the English Liturgy which now we have composed by Seven Bishops and Four Doctors and confirmed by the publick consent of the Church which as also the said 39 Articles the succeeding Princes Queen Eliz. King James and King Charles ratified and commended to Posterity At London a Synod in which 141 Canons or Constitutions relating to the pious and peaceable Government of the Church presented to King James by the Synod and confirmed by his Regal Authority and at Perth in Scotland where were Articles concerning Administring the Sacrament to the Sick Private Baptism where Necessity requires Confirmation admitting Festivals Kneeling at the Receiving the Sacrament and an allowance of Venerable Customes But de Concil Britan. vid. D. Spelman The Ancient Canons of the Church and Provincial Constitutions of this Realm of England were according to Lindwood the Canonist who being Dean of the Arches compiled and explained the same in the time of King H. 6. made in this order or method and under these Archbishops of Canterbury viz. The Canons or Constitutions 1. Of Stephen Langton Cardinal Archbishop of Canterbury in the Council at Oxford in the year of our Lord 1222 who distinguish'd the Bible into Chapters 2. Of Otho Cardinal the Popes Legate in Anno 1236. on whose Constitutions John de Athon Dr. of Laws and one of the Canons of Lincoln did comment or gloss 3. Of Boniface Archbishop of Cant. 1260. 4. Of Othobon Cardinal of St. Adrian and Legate of the Apostolical Chair on whose Constitutions the said John de Athon did likewise Glossematize His Canons were made at London in Anno 1268. 5. Of John Peckham Archbishop of Canterbury at a Synod held at Reding An. 1279. 6. Of the same Peckham at a Synod held at Lambeth An. 1281. 7. Of Robert Winchelse Archbishop of Canterbury An. 1305. 8. Of Walter Reynold Archbishop of Canterbury at a Synod held at Oxford An. 1322. These Constitutions in some Books are ascribed to Simon Mepham but erroneously for the date of these Constitutions being An. 1322. the said Walter Reynold according to the Chronicle died in An. 1327. and was succeeded by Simon Mepham 9. Of Simon Mepham Archbishop of Cant. An. 1328. 10. Of John Stradford Archbishop An. 13 ... 11. Of Simon Islepe Archbishop An. 1362. 12. Of Simon Sudbury Archbishop An. 1378. 13. Of Tho. Arundel Archbishop at a Synod or Council held at Oxford An. 1408. 14. Of Henry Chichley Archbishop An. 1415. 15. Of Edmond Archbishop of Canterbury 16. Of Richard Archbishop of Canterbury The Dates of the Canons or Constitutions of these Two last Lindwood makes no mention by reason of the uncertainty thereof but withal says it is clear That Richard did immediately succeed the foresaid Stephen Langton and the said Edmond succeeded Richard Lindw de Poen c. ad haec infra in verb. Mimime admittatur If so then it was most probably Richard Wethershed who was Archbishop of Canterbury An. 1229. And St. Edmond Chancellor of Oxford who was Archbishop of Canterbury An. 1234. 8. Councils were either General or Oecumenical from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 whereunto Commissioners by the Emperours Authority were sent from all quarters of the World where Christ hath been preached Or National or Provincial or Particular by Bullenger called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 such were the Councils of Gangra Neo-caesarea and many others commonly Assembled by Patriarchs and Bishops in some particular place of a Countrey The ends of these Councils chiefly were either for the suppression of Heresies the decision of Controversies the appeasing of Schisms or the Ordaining of Canons and Constitutions for decency of Order in the Church Vid. AElfrici Canones ad Wulfinum Episcopum Can. 33. where it is said That there were Four Synods
condemning the Heresies of Pelagius and Coelestius concerning the power of Mans Nature not supported by the Grace of God and Free Will of Man to do good of it self as also to inhibit Appeals to Bishops beyond Sea on pain of being secluded from the Communion of all African Bishops At Carthage in the year 402 under Honorius and Theodosius the Second a National Council of 217 Bishops was assembled which continued for the space of Six years The business of this Council was prevented by a Controversie happening between them and the Bishops of Rome who successively endeavoured but not successfully to perswade the African Bishops that they were under the Sovereignty and Jurisdiction of the Bishops of Rome to whom this Council would not allow of any Appeal from the Bishops of Africa At Bagaia in Africa about the year 433. certain Donatists to the Number of 310 assembled themselves in Council chiefly for the deposition of Maximinianus Bishop of Bagaia whom they Deposed and Accursed because he had renounced their Heresie and had recovered many others from the Error of that way At Ephesus in the year 434. and in the Eighth year of the Reign of Theodosius the Second by some called Theodosius the Younger was a General Council assembled against the Heretick Nestorius Bishop of Constantinople which Council consisted of above Two hundred Bishops by Command from the Emperour By which Council Nostorius for his Heresie in denying the Son of the Virgin Mary to be God and consequently the Personal Union of the Divine and Humane Nature of Christ was Banished to Oasis This was the first General Council of Ephesus promoted by Celestine the First wherein Two hundred Bishops as aforesaid condemned Nestorius together with Carisius his flattering Presbyter who instead of Two Natures acknowledged divers Persons in Christ and therefore pleaded that the Blessed Virgin Mary should be styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only and not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 In this Council Cyrillus of Alexandria is recorded President whom Nestorius being piously and brotherly invited to a better Opinion proudly contemned and having craftily allured John of Antioch to his party Anathematiz'd him and the Council who had formerly Anathematiz'd him The matter being related to the Emperour and throughly understood Cyrillus and his are cleared but Nestorius with his party is Banished as aforesaid to Oasis a Sandy Habitation where like another Cain says a Modern Historian roving here and there Blaspheming at length his Tongue being consumed and eaten up by Worms he breathed out his last There are it seems two Copies of this Council the First observing Eight the Second Thirteen Canons which are comprehended in the Anathema's of Cyrillus The Massilianites termed also Euchites and Enthusiasts were condemned by this Council and thereby the integrity of the Nicene Creed confirmed At Ephesus under Theodosius the Second was likewise a Particular Council assembled by Flavianus Bishop of Constantinople who condemned Eutyches an Abbot of Constantinople for Affirming That in Christ after the Union of the Divine and Humane Natures there were no longer Two Natures which absurd Opinion Flavianus damned as Heretical So that the occasion of this Second Council of Ephisus An. 449. was this Eutyches an Archimandrite of Constantinople who after Manes and Apollinaris denied the Flesh of Christ to be like ours but affirmed that falling from heaven like the Rays of the Sun it penetrated the Virgins womb And so he denied that Two Natures were in Christ Incarnate but asserted that his Flesh was changed into his Divinity for which he was as aforesaid condemned by Flavianus Patriarch of Constantinople and Eusebius Bishop of Doril and others their Associates yet by the help of Chrysaphius the Eunuch and Eudoxia the Empress whom he had seduced he prevailed with Theodosius that the matter might be determined by a Famous Synod for which reason this at Ephesus by the Emperours Authority was called where 128 Bishops met Dioscorus of Alexandria being President one so full of Eutychianism that Eutyches is absolved and the reclaimers forced says the Historian to subscribe by Club-Arguments Flavianus opposing it was so suriously trodden upon that three days after he died besides many very Learned Bishops discharged of their Places yet not long after all this was dashed in pieces by the most Famous Council of Chalcedon At Berytus in Phoenicia was held a Council about this time where in the Cause of Ibas Bishop of Edessa whom Dioscorus had deposed was revived and himself justified and absolved At Agatha in France was a Council held wherein nothing was more remarkable than that they had liberty to meet together by the Command of Alaricus King of Gothes who at that time had the Sovereignty in that parr of France called Gallia Norbonensis whence it appears That Councils both General and National were in all Countreys Convened by the Authority of Sovereign Princes At Chalcedon in Bythinia in the year 455. and in the Fourth year of Marcianus the Emperour was a General Council at which was present in person the Emperour and 630 Bishops and Reverend Fathers from most parts of the World In this Council Dioscorns Bishop of Alexandria together with Eutyches and Juvenalis Bishops at Jerusalem was condemned as an Heretick for absolving the Heretick Eutyches in the Council at Ephesus and acting other Crimes whereof he was then accused In this Council it was Ordained That men should believe that the Natures of Christ albeit that they were united yet were they not confounded as Eutyches had Heretically affirmed Also in this Council it was Ordained That Anatelius Bishop of Constantinople and his Successors should have the chief Dignity next unto the Chair of Rome This Council was called by the said Emperour Martianus against the said Eutyches Abbot of Constantinople and his Champion Dioscorus of Alexandria the suppositious Acts of the Council held at Ephesus were condemned by this Council those of Ephesus being in favour of Eutyches who affirmed one only Nature to be in Christ viz. his Divine Nature after his Incarnation It is not clear or certain who was President of this Council of Chalcedon excepting the Emperour and Judges Moderators The matters thereof were for the most part by favouring parties between Leo the First of Rome and Anatholius Patriarch of Constantinople At Ravenna in the Sixth Century was a Council Assembled by occasion of the Schism happening on the Election of Symmachus to the See of Rome whose Competitor was Laurentius afterwards made Bishop of Nuceria In Symmachus his time were no less than Six Councils held at Rome all Convened by Authority of Theodoricus King of Gothes who then Reigned in Italy and all of little importance otherwise than the Endeavours that then were for the Supremacy whereat they aimed At Valentia in Spain were assembled Two Councils called Herdense and Valentinum both very obscure Councils there being in the one but Eight Bishops present
been only a reviver of an Ancient power which had been formerly invested in his Predecessors and in all other Christian Princes If we consult the Records of elder Times it will readily appear not only that the Roman Emperours of the House of France did Nominate the Popes themselves but that after they had lost that power they retained the Nomination of the Bishops in their own Dominions The like done also by the German Emperours by the Kings of England and by the Ancient Kings of Spain The Investure being then performed per Annulum Baculum that is by delivering of a Ring together with a Crosier or Pastoral Staff to the party nominated 22. By Ancient Right the Bishops of London are accounted Deans of the Episcopal Colledge and being such are by their place to signifie the pleasure of their Metropolitan to all the Bishops of the Province to execute his Mandates and disperse his Missives on all emergency of Affairs As also to preside in Convocations or Provincial Synods during the vacancy of the See or in the necessary absence of the Metropolitan 23. In O Brian and Knivan's Case the Case was That King Ed. 6. under his Privy Seal signified to Sir J. C. and to the Lord Chancellor and others in Ireland That he elected and appointed J. B. to be Bishop of Ossory Requiring them to Instal him in the Bishoprick The Deputy being removed the Chancellor and the other made a Commission under the Great Seal of Ireland to the Bishop of Dublin to Consecrate him which was done accordingly and he did his Fealty and recovered the Temporalties out of the Kings hands Afterwards in the life of J. B. Queen Mary elected J. T. to be Bishop there who was likewis◠Consecrated and who made a Lease of divers Lands of the Bishoprick for 101 years which was confirmed by the Dean and Chapter J. B. died and after J. T. died J. W. was elected Bishop The Questions in the Case were 1. Whether J. B. was well created Bishop 2. Whether this Lease made by J. T. being Bishop de facto but not de jure in the life of J. B. he surviving J. B. should be good to bind the Successor Resolved The Commission was well executed although the Deputy Sir J. C. were removed 2. Resolved That before the Statute of 2 Eliz. the King might by Patent without a Writ of Congé d'eslire create a Bishop for that was but a Form or Ceremony 3. Resolved That although J. T. was Bishop de facto in the life of J. B. that the Lease made by him for 101 years was void though it was confirmed by the Dean and Chapter and should not bind the Successor But all Judicial Acts made by him as Admissions Institutions c. should be good but not such voluntary Acts as tended to the depauperation of the Successor A Bishop made a Lease for three Lives not warranted by the Statute of 1 Eliz. rendring Rent the Successor accepted the Rent It was Resolved It should bind him during his time so as he shall not avoid the Lease which otherwise was voidable CHAP. IV. Of the Guardian of the Spiritualties 1. What the Office of such a Guardian is and by whom Constituted 2. The power of such Guardians in vacancy of Archbishopricks 3. What Remedy in case they refuse to grant such Licenses or Dispensations as are legally grantable 4. Who is Guardian of the Spiritualties of Common Right 5. What things a Guardian of the Spiritualties may do 1. GVardian of the Spiritualties Custos Spiritualium vel Spiritualitatis is he to whom the Spiritual Jurisdiction of any Diocess during the vacancy of the See is committed Dr. Cowell conceives that the Guardian of the Spiritualties may be either Guardian in Law or Jure Magistratus as the Archbishop is of any Diocess within his Province or Guardian by Delegation as he whom the Archbishop or Vicar General doth for the time depute Guardian of c. by the Canon Law pertains to the Appointment of the Dean and Chapter c. ad abolend Extr. Nè sede vacante aliquid innovetur But with us in England to the Archbishop of the Province by Prescription Howbeit according to Mr. Gwin in the Preface to his Readings divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm Cowell verb. Custos This Ecclesiastical Office is specially in request and indeed necessarily in the time of the Vacancy of the Episcopal See or when the Bishop is in remotis agendis about the publick Affairs of the King or State at which time Presentations must be made to the Guardian of the Spiritualties which commonly is the Dean and Chapter or unto the Vicar General who supplies the place and room of the Bishop And therefore if a man Recover and have Judgment for him in a Quare Impedit and afterwards the Bishop who is the Ordinary dieth In this case the Writ to admit the Clerk to the Benefice must be directed to the Guardian of the Spiritualties Sede vacante to give him Admission But if before his Admission another be created Bishop of that See and Consecrated Bishop in that case the power of the Guardian of the Spiritualties doth cease and the party may have a new Writ to the new Bishop to admit his Clerk A Guardian of the Spiritualties may admit a Clerk but he cannot confirm a Lease 2. The Guardian of the Spiritualties takes place as well in the vacancy of Archbishopricks as Bishopricks and hath power of granting Licenses Dispensations and the like during such Vacancies by the Statute of 25 H. 8. whereby it is provided and enacted That if it happen the See of the Archbishop of Canterbury to be void that then all such Licenses Dispensations Faculties Instruments Rescripts and other Writings which may be granted by virtue of the said Act shall during such vacation of the said See be had done and granted under the Name and Seal of the Guardian of the Spiritualties of the said Archbishoprick according to the tenor and form of the said Act and shall be of like force value and effect as if they had been granted under the Name and Seal of the Archbishop for the time being Where it is also further enacted 3. That if the said Guardian of the Spiritualties shall refuse to grant such Licenses Dispensations Faculties c. to any person that ought upon a good just and reasonable cause to have the same then and in such case the Lord Chancellor of England or the Lord Keeper of the Great Seal upon any complaint thereof made may direct the Kings Writ to the said Guardian of the Spiritualties during such Vacancy as aforesaid refusing to grant such Licenses c. enjoyning him by the said Writ under a certain penalty therein limited at the discretion of the said Lord Chancellor or Lord Keeper that he shall in due form grant such License Dispensation Faculty
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