Vrbis Cantuar. Antiq. pag. 362 363. ubi de Decano Christianitatis But the Deans here specially meant and intended are only such as with the Chapters according to the ancient and genuine use thereof are as Senatus Episcopi to assist the Bishop in his Jurisdiction Cathedral Churches being the first Monuments of Christianity in England So Dr. Hacket in Parliament 1640. The Office and Ecclesiastical Dignity of Archdeacons which you next meet with in this Abridgment is of very great Antiquity There was a sharp Contest above Five hundred years since in the time of King H. 2. between the Archdeacons and the Priors of Winchester and Ely touching the Presentation of their Bishops Elect unto the Metropolitan in order to their Consecration wherein by the Interlocutory of the said Metropolitan the Priors had the Victory Hora congrua Consecrationis instante R. Wintoniensis R. Elyensis Archidiaconi cum Officiales Episcoporum dicantur ad suum spectare contendebant Officium Electiones c. praesentare Metropolitano W. Wintoniensis S. Elyensis Priores in contrarium sentiebant quam enim in Ecclesiis Cathedralibus ubi Canonici divinis mancipantur obsequiis Decani sibi vindicant dignitatem hanc si Monachorum Conventus in Episcopali sede praemineat sibi jure possunt vendicare Priores Sed ut omnis in posterum amputetur occasio Litigandi de Interlocutoria Metropolitani sententia c. Wintoniensis Elyensis Electiâ— ad Priorum suorum praesentationem recepti ad Priorum suorum postulationem Episcopi Consecrati sunt Radulph de Diceto Imag. Hist. By the 25th Canon of the Council of Lateran under Pope Alexander it was Ordained That an Archdeacon in his Visitation should not exceed the numqer of Five or Seven Horsemen for his Retinue Chron. Gervas de Temp. H. 2. And as to the Visitation-Articles every Bishop and Archdeacon heretofore framed a Model thereof for themselves but at the Convocation in the year 1640. a Body thereof was composed for the publick use of all such as exercised Ecclesiastical Jurisdiction And by the foresaid Canon of the Council of Lateran it was further Ordained That no Archdeacon in his Visitation should presume to exact from the Clergy more than was justly due Archidiaconi autem sive Decani nullas exactiones in Presbyteros seu Clericos exercere praesumant Notwithstanding what toleration the Law allows as to Archbishops Bishops Archdeacons c. as to the number of their Retinue in their Visitations yet therein respect is ever to be had to the condition of the Churches Persons and Places Visited as may plainly appear by the express words of the Canon aforesaid viz. Sane quod de numero evectionis secundum tolerantiam dictum est in illis Locis poterit observari in quibus ampliores sunt redditus Ecclesiasticae facultates In pauperibus autem Locis tantam volumus teneri mensuram ut ex accâ—ssu majorum minores non debeant gravari ne sub tali indulgentia illi qui paucioribus Equis uti solebant hactenus plurium sibi credant potestatem indultam So that no Archdeacon or other having Right of Visitation ought by what the Law allows them in that case to exercise their power in this matter beyond what the condition of the place Visited will reasonably admit In all Visitations of Parochial Churches made by Bishops and Archdeacons the Law hath provided that the Charge thereof should be answered by the Procurations then due and payable by the Inferiour Clergy wherein Custome as to the Quantum shall prevail but the undue Demands and supernumerary Attendants of Visitors have Anciently as well as in Later times given the occasion of frequent Contests and Complaints For prevention whereof it was Ordained by the 25th Canon of the Council of Lateran under Pope Alexander circa An. 1179. in haec verba viz. Cum quidam Fratrum Coepiscoporum nostrorum ita graves in Procurationibus subditis suis existunt ut pro hujusmodi causa interdum ipsa Ecclesiastica Ornamenta subditi compellantur exponere longi temporis victum brevis hora consumat Quocirca statuimus Quod Archiepiscopi Parochias Visitantes pro diversitate Provinciarum facultatibus Ecclesiarum 40 vel 50 evectionis Numerum Episcopi 20 vel 30 Cardinales vero 20 vel 25 nequaquam excedunt Archidiaconi vero Quinque aut Septem Decani Constituti sub Episcopis Duobus Equis contenti existant Prohibemus etiam ne subditos suos talliis exactionibus Episcopi gravare praesumant Archidiaconi autem sive Decani nullas exactiones vel tallias in Presbyteros seu Clericos exercere praesumant vid. Chron. Gervas de Temp. H. 2. col 1455. can 25. whereby it is evident that these Procurations ought to be so moderated by the Bishops as that they may not become a burthen or grievance to the Clergy The lawfulness of these Episcopal and Archidiaconal Rights of Procurations are not to be called into question at this day for in all the Establishments and Ordinations of Vicarages upon the Ancient Appropriations of Churches you shall find these Procurations excepted and reserved in statu Quo As appears by these of Feversham and Middleton when by William the Conqueror they were Appropriated to the Abbey of St. Austins as also by these of Wivelsberg Stone and Brocland in Kent when they were Appropriated to the same Abbey by the Charter of King Ed. 3. and in that of the Parish of Stone aforesaid Pentecostals by name are reserved in these words Nihilominus solvet Procurationem debitam Archidiacono Cantuariensi Visitanti expensas pro Pentecostalibus faciendis vid. Chron. W. Thorne Appropria Eccles col 2089. Hist Angl. What Procurations the Archbishop of Messena who arrived in England as the Popes Legate in the year 1261. exacted and extorted from the Bishops and Abbots with great violence in the Reign of King H. 3. you may find in Matthew Paris But by the Fourth Canon of the Council at Rome under Pope Alex. 3. An. 1180. it was Ordained That Bishops and Archbishops in their Visitations should not overcharge the Church of their Bounds with unnecessary charges and expences specially the Churches that are poor No sooner had Princes in Ancient times assign'd and limited certain Matters and Causes controversal to the cognizance of Bishops and to that end dignified the Episcopal Order with an Ecclesiastical Jurisdiction but the multiplicity and emergency of such affairs requir'd for the dispatch and management thereof the assistance of such subordinate Ordinaries as being experienc'd in the Laws adapted to the nature of such Causes might prove a sufficient Expedient to prevent the avocation of Bishops by reason of such Litigious interpositions from the discharge of the more weighty Concerns of that Sacred Function Hence it is supposed that the Ecclesiastical Office of Diocesan Chancellors Commissaries and Officials originally came into use and practice the place of their Session anciently styled the Bishops
Otho's Constitutions and whatever other causes of Consolidation are asserted by the DD. may be all referr'd to one or other of the foresaid Reasons Likewise there are certain Solemnities required by the Canon Law to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices the impracticability whereof in this Realm having otherwise provided in such cases can have no such malign influence in Law as to invalidate the thing for want of some Circumstantials so long as there is a retention of the Essentials according to the Laws and Constitutions of this Kingdom Vnio facta ab Episcopo debet intervenire Consensus Capituli sui Clem. si Vna de reb Eccl. non aliend Item requiritur Consensus Patroni Clem. in agro § ad haec de Stat. Mona Item Nullum habet effectum vivente Beneficiato Card. Zab. in dict Clem. Si una c. Item Verus valor Beneficiorum Exprimi debet c. 4. In all Consolidations regularly there ought to be Causa Necessitatis vel Vtilitatis Also the just and true value of the Benefices ought to be known as well of that which is to be united as of that to which the other is unitable in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value at which all persons pretending Interest are to be or may be present upon Summons or Notice thereof timely given them to that end for no Consolidation or Union of that kind ought to be made non vocatis vocandis Rebuff Resp 195. 5. This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practiced in France which though there appears nothing therein but what seems consonant to Reason yet the Statute-Laws of this Realm have herein made other provision in this matter And that which we now commonly call Consolidation the Canon Law which is best and most properly acquainted with this matter calls Vnion Touching which there are in use and practice many things in divers Nations and Countries which were Incognita to the Interpreters of that Law and not in all things consonant to each other thereby rendring this Subject the more perplexed by reason of the several modes of practice diversified according to the various Constitutions of several Nations respectively for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty as may be said Infallible in Law only they all agree in some certain Essentials to an Union as also for the most part in this Definition thereof viz. That Vnio est Beneficiorum seu Ecclesiarum ab Episcopo vel ab alio Superiore facta annexio To which this also may be added by way of description though not by way of definition That quando fit unio Ecclesia in proprietatem concedi solet Cap. in cura de jur Patronat and it must be Vnio Beneficiorum for there cannot be an Union unless there be plura Beneficia in the case L. 1. per totum ff de Optio Legat. Also it is Beneficiorum seu Ecclesiarum because the word Benefice is in it self a general term comprehending all Benefices great and small Regular and Secular Dignities and Offices C. 1. de reg jur in 6. c. extirpandae § qui vero de Praebend So that Bishopricks as well as other Benefices may be united and annexed But a Bishoprick which the Law calls culmen Dignitatis doth not regularly fall under the name or notion of Benefice c. pen. de Praebend and yet two Bishopricks may be united c. Decimas seq 16. q. 1. Rebuff de Vnion Benefic nu 4 5. 6. This Consolidation or Union at the Canon Law is either Perpetual or Temporal if Perpetual then it must be so expressed in the Union that in perpetuum univimus c. exposuisti de Praeb if Temporal then it is only for his life in whose favour the Vnion is made c. 1. ne Sede vacante and at his death it expires c. quoniam Abbas de Offic. Delegat But the Practice with us knows nothing of the Temporal Member of this distinction nor is the practice thereof at this day received in France Rebuff ubi supr nu 9. such Temporal Unions being only in contemplatione personae non Ecclesiae whereas the Law is Ecclesiae magis favendum est quam personae Dic. c. 1. c. requisisti de Testa Oldr. Consil 257. And where two Parochial Churches are consolidated or united that Church to which the other is united shall be the Superiour and principal the other which is united is the Inferiour and Accessory yet shall enjoy the Priviledges of that Church to which she is united c. recolentes in fin de stat Monach. Lastly The more worthy Benefice is never united to the minus digno and therefore a Parochial Church may not be united to a Chappel sed è contra Sic c. exposuisti de Praebend CHAP. XV. Of Dilapidations 1. What Dilapidation signifies how many waies it may happen the Remedies in Law in case thereof and to what Court the cognizance thereof properly belongs 2. Provision made by the Canon for prevention of Dilapidations 3. Dilapidation twofold in construction of Law An Exposition of the said Canon the Bishops power of Sequestration in case of Dilapidation 4. By whom the Body of the Church and by whom the Chancel shall be kept in repair How the charge of Repair in the case of Dilapidations shall be apportioned and what the Law in such cases where one Parish is divided into Two 5. Dilapidation of Ecclesiastical Edifices a good cause in Law of Deprivation 6. The Injunction of King Ed. 6. for prevention of Dilapidations 7. Leases made by a Parson void by Statute for Non-residence to prevent Dilapidations 8. The wasting the Woods of a Bishoprick a Dilapidation in Law such Woods being the Dower of the Church 9. A Vicar felling down Timber Trees and Wood in the Church-yard is a Dilapidation and good cause of Deprivation 1. DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruine or decay neglecting to repair the same It extends also to his committing or suffering to be committed any wilful Waste in or upon the Glebe-woods or other Inheritance of his Church Against which provision is made by the Provincial Constitutions whereof Sir Simon Degge takes notice in his Parsons Counsellor though in truth the Canon there provides rather as to satisfaction for than prevention of such Dilapidations Lindw c. si Rector alicujus Ecclesiae Gloss ibid. But the Canon Law is express and full in all respects relating to this implicit Sacriledge nor doth the Custome of England or the Common Law leave the Church without sufficient Remedy in this case albeit it postpones the satisfaction of dammages for Dilapidations to the payment of Debts as the Canon Law prefers it before the payment of Legacies
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
Customs of the place where they are committed Grotius out of Lessius affirms that the Adulterer and Adulteress are not only obliged to indemnifie the innocent party as to all charges of Alimentation of the unlawfully begotten but also to make good what dammage the Legitimate Children may thereby suffer in their Inheritance and whoever doth lessen the Reputation of a Virgin either by force or insinuations shall refund to her as much as she is thereby fallen in value upon the hopes or expectation of her Preferment in Marriage But if by his Sollicitations he hath obtained the use of her body under a promise of Marriage he is obliged to marry her accordingly Grot. de jur bel lib. 2. cap. 17. § 5. Less lib. 11. cap. 10. Dub. 6. 10. Although this Sin of Adultery is properly and of right belonging to the Cognizance of the Ecclesiastical Jurisdiction yet it will not be denied but that as it is an offence against the peace of the Realm for which reason some are of opinion that Avoutry or Bandry is an offence Temporal as well as Spiritual the Justices of the Peace may out of their Sessions require Surety for the good Behaviour of such as offend therein as also of such as by Common Fame are reputed Resorters to houses suspected of maintaining Adultery or Incontinency of such as keep such houses of lewd Women found in such houses of common Whoremongers and common Whores And upon Information given to a Constable that a Man and a Woman be in Adultery or Fornication together or that a Man and woman of evil Fame or Report are gone to a suspected house in the night the Officer may take company with him and if he find them so he may carry them to Prison or before a Justice of Peace to find Sureties for the good Behaviour 11. The Punishment of Adultery is diversified according to the Laws and Customs of several Nations respectively as forementioned and the Penalty thereof with the Saxons of old in this Kingdom was called Lairwite or Lecherwite and Legergeldum from two Saxon words signifying it seems concumbere and mulcta a Fine or Custom of punishing offenders of that kind which Priviledg is said to have belonged anciently to the Lords of some Mannors in reference to their Villains and Tenants And by Statute Law as also by the law of the Land a Wife that clopes and departs from her Husband with an Adulterer and refuses to be reconciled to him loseth or forfeits her Dower or Jointure yea though she departed from him with his own consent to which purpose remarkable is that Case of Sr. John de Camois Son of the Lord Ralph Camois in the time of Ed. the first who of his own voluntary Will gave and demised his own Wife Margaret a Daughter and Heir of John de Gaidesden unto Sr. William Pannell Kt. and together with her gave granted released and Quit-claimed all her Goods and Chattels c. so that neither himself nor any other in his name should ever after make any claim or challenge any interest in the said Margaret or to or in her Goods or Chattels c. Whereupon she demanding her Dower in part of the Lands of Sr. John Camois there happened a Suit at Law wherein she was overthrown by Judgment given That she ought to have no Dower out of his Estate upon the Stat. of Westm 2. Quia recessit à Marito suo in vita sua vixit ut Adultera cum praedicto Gulielmo c. 12. There are of the Church of Rome who hold that Adultery in conjugato cum soluta is minus peccatum quam in conjugata cum soluto the reason they give for it is for that it is far more repugnant to the Law of Nature that one Woman should be joyned to two Men than e contra and suppose that Bigamy in the Patriarchs of old is an impregnable Fortification of that Reason the Feminine Sex will give them but little thanks for this Opinion But leaving them to enjoy the one and the other we hold that This as to the Inquiry and Punishment thereof is properly within the Ecclesiastical Cognizance it being most consonant to Reason that in what Jurisdiction Matrimonial Causes are controvertible in the same should the Violation of Conjugal Rights be discussed to which end as well the Civil as Canon Law though that especially are furnish'd with great variety of Constitutions to obviate all manner of circumstances relating to this Subject Pasch 8. car B. R. Case Matingly vers Martyn It was resolved that the cognizance of all Fornications Adulteries and of persons suspected to live in Adultery doth belong to the Ecclesiastical Court Jones Rep. So then Adulterium being quasi Accessio ad alterius thorum is the violation of anothers Bed whence it is required that either both or one of the Parties be under the Matrimonial Vow for that conjugal circumstance either in the Male or Female is as the causa sine qua non that the luxurious Act falls under the notion of Adultery in distinction from acts of the same kind under other circumstances For the Law holds that it may be committed in a threefold manner either ex parte viri vel feminae vel utriusque alway supposing that one or both are Matrimonializ'd and both living The Penalty of Adultery hath varied according to the Laws and Customs of several Nations and of several Ages in the same Nation as appears by what hath been said on this Subject The punishment of this epidemical evil the very Brutes and meer Animals have given us a president of if credit may be given to such as have made report of the Stork of which Lessius writes out of another Author as being a Creature of strange abhorrency and revenge of Adultery that by the very instinct of Nature the jealous Animal impatient of vindicating his defiled Nest summon'd others of the same Feather to advise in the Case Testifying that in his own time a certain Stork being as it were convicted of Adultery per olfactum masculi sui or the smelling of her Male he conven'd a Flock of other Storks before whom he so prosecuted Nescio qualiter sayes the Author the Indictment against the Female Stork that she was first deplum'd then torn in pieces by the rude Multude of the other Storks as if in a solemn Council they had all unanimosly sentenc'd her to death as an Adulteress If the report seems improbable yet the Moral is very applicable CHAP. XXXV Of Bastards and Bastardy 1. What Bastard signifies the derivation of that word 2. The difference between Bastard and Mulier what Mulier signifies and why so called 3. Bastardy distinguish'd at the Common Law into Special and General Bastardy 4. The Presumptions of Law touching Bastardy in case of the Husbands obsence from his Wife 5. Five Appellations of Bastards for distinctions sake at the Civil Law with respect to the several
Persecution which moved Constantine Son of Constantius Chlorus who began his Reign in the year of our Lord 310. to give command for the Re-edifying and Repairing the Temples of the Christians which was not only expeditely put in Execution but many new Churches were also erected for the Convention of the Christians and Idol-Temples shut up until Julian the Apostate restored the Heathenish Idolatry It hath ever belonged to the care and cognizance of the Church to make provision for the Repair of the Dilapidations of the Church Thus Jehoida made it his business to repair the Dilapidations of the Temple But although Controversies hence arising and incident to this matter are properly belonging to Ecclesiastical cognizance yet they are not only Ecclesiastical persons that are hereunto obliged for although they alone are to prevent and repair or make satisfaction for what part of the Churches Dowry themselves have suffered to be Dilapidated whilst in their own possession yet as to the Church it self and the Incidents thereof others as well as Ecclesiasticks are obliged to the Repairs thereof for the Steeple with the Body of the Church and all Chappels lying in Common thereunto are to be Repaired by the Joynt cost of the Parishioners And such Private Chappels as wherein particular persons claim a propriety of Seat and Sepulture are to be Repaired at their own charge but the Chancel is to be kept in Repair at the Parsons cost yet in all these respect is chiefly to be had to the Custome of the Place time out of mind for that shall rule the Premisses and will go far to determine whether the Fences of the Church-yard are to be made and repaired at the charge of the Parson who may have the ground thereof as part of his Glebe or at the charge of the Parishioners or of such persons whose Land surrounds or abutts on the same Suarez saies That for the better prevention of Dilapidations there was Anciently a Custome in some places That some part of the Tithes should not be paid to the Clerk or applied to the party Beneficed but should be reserved for the use of the Fabrick of the Church to repair the same and for the use of the Poor and were not properly due to any particular Clerk ut in ejus dominium transferantur but to the Church not the material Temple but to the Church that is the Clergy for the use of the Temple The Executors or Administrators of a Dilapidator stand charged in the Ecclesiastical Court to the succeeding Incumbent to make good the Repairs and if such Dilapidator in his life-time shall make a Deed of Gift to defeat the Successor of the effect of his Suit it is void 13 Eliz. cap. 10. And the Successor Incumbent shall have like remedy in the Ecclesiastical Court against such Donee or Grantee as he might have had against the Dilapidators Executor or Administrator Also by 14 Eliz. cap. 11. it is provided That all the Moneys received for Dilapidations shall within Two years be employed upon the Buildings for which they were paid on pain of forfeit of so much to the King as shall not be so employed When a Church becomes Litigious and doubt arises touching the right of Patronage or Presentation in that case the Law hath provided an Expedient for the Ordinary whereby his being a Disturber in case he Collate or Present is prevented to which end and in such case the Law directs him to award the Jure Patronatus wherein the Practice with us at this day answers to the pretence of all persons quorum interest with more exactness and general satisfaction than was anciently practicable according to the Canons and Constitutions of old as appears by the defect in this matter of the Seventeenth Canon of the Council at Rome An. 1180. which is only to this effect viz. If a question arise concerning Presentations of divers persons to one Church or concerning the Gift of Patronage if the foresaid Question be not decided within the space of Three months the Bishop shall place in the Church the person whom himself conceives most worthy The Law takes notice of a twofold Jus Patronatus the one Civile the other Canonicum The former is that which is introduced by the Civil Law and refers to a Lord or Patron in respect of his Bondman made Free and his Goods the other and which only is here intended is That which is instituted by the Church in shew of gratitude to him who either Founded built or Endowed some Church for which reason the Bishops granted them a certain Right in such Churches which is commonly called Jus Patronatus and that by the Canon Law understood as Honorificum Vtile Onerosum Honorificum in regard of that obsequious Respect due from the Parish to the Patron specially in that the chiefest Seat in his Church is granted to him Onerosum in that the Patron may lawfully defend his Church and prevent the Dilapidations both of the Church and of what she is Endowed with according to the way and manner prescribed in cap. Filiis 16. q. 7. It is also called Jus Vtile because that if any time the Patron or any descending from him shall happen to fall into decay in such case the said Church is more oblig'd to supply the necessities of him and his than of any other Poor c. Quaecunque cum sequent For this reason also it is and that others may be encouraged to the like Acts of Piety the Church as a Mark of special grace and favour hath granted to such Patrons the Jus Praesentandi or a Right to Present fit persons to the Benefice of such Churches This Right or Jus Patronatus did not belong to Patrons anciently or jure antiquo as appears by the Gloss in cap. Piae mentis yet most certain it is That this Right of Patronage was Jus antiquissimum as is evident by cap. Quoniam de jure Patronat And the Lateran Council calls it Potestatem in qua Ecclesia huc usque Patronos sustinuit The present Incumbents Parsons and Vicars of Churches burnt in London by the late Dreadful Fire and by Act of Parliament not to be rebuilt are by the said Act not deprived of the Tithes or other profits formerly belonging to their respective Churches so long as they shall assist in serving the Cure and other Offices belonging to their duty in the Parish-Church whereunto their respective Parishes shall be united and annexed by the said Act according to the direction of the Ordinary c. Saving to the Kings Majesty his Heirs and Successors the Tenths and First-Fruits of all such Parish-Churches as by force of the said Act are united and consolidated c. yet so as that the said Parsons and Vicars are by the said Act indemnified from the payment of all First-Fruits Tenths and Pensions due and which shall be due unto his Majesty and from all dues to the Ordinary and Archdeacon and all other dues
whatsoever chargeable upon them respectively until such time as they shall receive the Profits arising from the same as formerly And no Process to issue out of any Court whatsoever against the persons aforesaid for their Non-payment of First-Fruits Tenths Pensions or any other the dues aforesaid c. The said Parsons are likewise by the said Act indemnified for not Reading the 39 Articles or not doing other thing enjoyned by Law until such time as the said Churches be Re-edified or made fit for Publick Worship The said Parsons and Vicars are likewise impower'd to lett Leases of their Glebe-Lands with the consent of the Patron and Ordinary for any Term not exceeding 40 years and at such yearly Rents without Fine as can be obtain'd for the same And that no Lapses incurred upon any Non-Presentation in due time of any of the Patrons of the said Livings since the said Fire shall any waies prejudice or make void the Presentations that the said Patrons have since made whereupon any Incumbent is since Instituted and Inducted any Law or Statute to the contrary in any wise notwithstanding By the Third Canon of that great Assembly of 180 Bishops at Rome in the Church of Constantiniana An. 1180. in the Twentieth year of Pope Alexander the Third it was Ordained That no man should be admitted to the Office of a Bishop under the age of Thirty years nor that any should be admitted to be a Deacon or Archdeacon or to have the government of a Parish until he were of the full age of Five and twenty years The next Chapter speaks of Vicars Vicarages and Benefices Gervasius a Monk of Canterbury in his Chronicle de tempore H. 2. under whom a Synod was convened at Westminster An. 1175. by Richard then Archbishop of Canterbury acquaints us with an Ancient Canon made at that Synod whereby Vicars are restrained from behaving themselves proudly against their Parsons a piece of Spiritual Insolence not grown quite out of practice to this day It is the Eleventh Canon the words are Illud etiam de Vicariis qui personis fide juramento obligati sunt duximus statuendum quod si fide vel Sacramenti religione contempta Personatum sibi falso assumentes contra Personas se erexerint si super hoc in jure vel confessi vel convicti fuerint de caetero in eodem episcopatu ad Officii sui Executionem non admittaâ—tur In all Appropriations of Churches there ever was and ought to be an establishment of sufficient Maintenance for the Vicar and his Successors pro sustentatione sua congrua made by the Bishop of the Diocess by and with the consent of such as to whom such Churches are Appropriated And this though for the most part consisting only of the Minute Tithes yet hath the denomination of a Benefice or Ecclesiastical Benefice as properly as any Rectory or Parsonage whatever for they are perpetual Vicars in whom the Vicarage or Benefice is as in Fee though not properly in demesne as in Fee as Temporal Inheritances are and therefore the word Beneficium with the Feudists and Canonists is the same as Feodum or Feudum with our Common Lawyers yet sometimes it is opposed to that which we call Allodium or what a man hath in his own Name and in his own proper Right and absolutely for that which is here understood by Beneficium may be possess'd nomine alieno certis sub Legibus which may not properly be said of Allodium that being properly what a man doth possess nomine proprio absolute An instance of this you have in the Grant made by King William Rufus to Anselme Archbishop of Canterbury Praecepit Rex ut investiretur Anselmus omnibus ad Archiepiscopatum pertinentibus atque ut Civitas Cantuariae quam Lanfrancus suo tempore in Beneficio à Rege tenebat Abbatia Sancti Albani quam non solum Lanfrancus sed Antecessores ejus habuisse noscuntur in Allodium Ecclesiae Christi Cantuariensis pro redemptione animae suae perpetuo jure transirent By the Ninth Canon of the Lateran Council under Pope Alexander It is prohibited to grant or promise any Ecclesiastical Benefices before they are actually void the reason of which Canon was to prevent the desire of the death of the present Incumbent by him who by such promise or grant had an expectation to succeed him in the Benefice In the next place follows the Chapter of Advowsons which the Canon Law calls Jus Patronatus being a power or right of Presenting one to be Instituted to a vacant Ecclesiastical Benefice I say Vacant because if the Benefice be not then void the Presentation will be void in Law the reason is because were it otherwise occasion might thereby be given the Presented to desire or wish for the Incumbents death cap. Nulla de Concess Praebend And although what we call Advowson the Canon Law calls Jus Patronatus yet every Jus Patronatus is not an Advowson according to the Civil Law for the Jus Patronatus hath a twofold acceptation in the Law the one That Right which Lords or Patrons have on their Bondmen made Free by Manumission and so it is taken in ff de jur Patron but this is not to our present purpose the other That Right of Presentation to an Ecclesiastical Benefice which belongs to Patrons of Benefices and Churches which in the Law is likewise called Jus Advocationis as appears by cap. Quia Clerici de Jur. Patronat And this is that Advowson here intended This Right of Advowsons or Jus Patronatus the Law doth also distinguish into Ecclesiastical and Laical Touching the Ecclesiastical vid. Covarru in qq pract c. 36. nâ— 2. which is so called not because an Ecclesiastick doth enjoy or possess it for so he may also possess a Laick Patronage but because it belongs to one for that he hath founded built or endowed the Church Ex bonis Ecclesiasticis or by reason of some Rectory of a Church or some Ecclesiastical Dignity As when a Benefice is erected with money gotten ex bonis Ecclesiasticis in that case he hath Jus Patronatus Ecclesiastici or Patronatum Ecclesiasticum And so it is if one hath the Advowson or right of Presentation on because he is a Bishop a Dean or the like this also is Jus Patronatus Ecclesiastici so the Gloss in Clem. 2. de jur Patronat alii The other kind of Advowsons or Jus Patronatus Laici is so called for that it belongs to one because he hath either founded built or endowed some Church or erected some Benefice Ex bonis patrimonialibus Lessius de Justic jure cap. 34. de Benefic Dub. 4. In pursuance of that distinction it is that the Canon Law determines in a different manner in respect of Ecclesiastick and Laick Patronages touching the time limited for Presentation to a vacant Benefice for according to that Law if the Patronage be Laick the Patron is obliged to
Present within Four months next after the Church becomes void but if the Patronage be Ecclesiastical then within Six cap. unico de Jur Patronat in 6. Concerning Appropriations of Churches the first thereof since the Conquest appears to be that of Feversham and Middleton in Kent An. 1070. granted by William the Conquerour to the Abbey of St. Austins in Canterbury in manner following viz. In Nomine c. Ego Willielmus c. ex his quae omnipotens Deus sua gratia mihi largiri est dignatus quaedam concedo Ecclesiae S. Augustini Anglorum Apostoli c. pro salute Animae meae Parentum meorum Predecessorum Successorum haereditario jure haec sunt Ecclesiae Decimae duarum Mansionum viz. Feversham Middleton ex omnibus redditibus qui c. omnibus ibidem appendentibus terra sylva pratis aqua c. Haec omnia ex integro concedo S. Augustino Abbati Fratribus ut habeant teneant possideant in perpetuum which was afterward Confirmed by Pope Alexander the Third and Ratified by Theobald Archbishop of Canterbury together with an Establishment and Ordination of a Vicarage by the said Archiepiscopal Authority in each of the said Churches respectively The like you have for the Appropriating of three other Churches to the same Abbey viz. of Wyvelsberg Stone and Brocland in Kent by the Charter of Ed. 3. above Three hundred years since Confirmed by Pope Clement's Bull and Ratified by Simon Mepham then Archbishop of Canterbury with his Establishment of Three perpetual Vicarages to the said Churches Which Charter is to this effect viz. Nos de gratia nostra speciali pro C. Libris quas praefati Abbas Conventus nobis solvent c. Concessimus Licentiam dedimus pro Nobis haeredibus nostris quantum in Nobis est ejusdem Abbati Conventui quod ipsi Ecclesias praedictas Appropriare eas sic Appropriatas in proprios usus tenere possint sibi Successoribus suis in perpetuum nisi in hoc Quod Nos tempore vacationis Abbatiae praedictae si contigerit Ecclesias praedictas vel aliquam earundem tunc vacare Nos Jus Praesentandi ad easdem amitteremus sine occasione vel impedimento Nostri vel haeredum nostrorum quorumcunque Hujus Data est sub An. Do. 1349. The Modern Church-Historian of Britain in his Eleventh Book pag. 136. calls to remembrance That about An. 1626. there were certain Feoffees a whole dozen of them though not incorporated by the Kings Letters Patents or any Act of Parliament yet Legally he says settled in Trust to purchase in Impropriations and that it was incredible how then possible to be believed what large Sums were advanced in a short time towards that work But then withal tells us somewhat that is Credible viz. That there are 9284 Parochial Churches in England endowed with Glebe and Tithes but of these when the said Feoffees entered on their work 3845 were either Appropriated to Bishops Cathedrals and Colledges or Impropriated as Lay-Fees to Private persons as formerly belonging to Abbeys The Redeeming and Restoring he does not mean to the Abbeys was the design of these Feoffees as to those in the hands of Private persons but re infecta the Design proved abortive A Commendam or Ecclesia Commendata so called in contradistinction to Ecclesia Titulata is that Church which for the Custodial charge and government thereof is by a revocable Collation concredited with some Ecclesiastical person in the nature of a Trustee vel tanquam fidei Commissarius and that for the most part only for some certain time absque titulo for he that is Titularly Endowed hath the possession of the Church in his own Name and in his own proper Right during his life hence it is that in the Canon Law a Church collated in Commendam and a Church bestowed in Titulum are ever opposed as contraries vid. Hist Concil Trident. lib. 6. pag. 600. Duaren de Benefic lib. 5. cap. 7. Thus King Edgar Collated Dunstan Bishop of Worcester to the Bishoprick of London by way of Commendam Rex Edgarus says Radulph de Diceto in his Abbreviat Chronicorum Lundoniensem Ecclesiam proprio Pastore viduatam commisit regendam Dunstano Wigornensi Episcopo Et sic Dunstanus Lundoniensem Ecclesiam Commendatam habuit non Titulatam dict Radulph de An. 962. It is supposed that the first Patent of a Commendam retinere granted in England by the King to any Bishop Elect was that which King Henry the Third by the advice of his Council in imitation of the Popes Commendams then grown very common granted by his Letters Patents to Wengham then Chancellor of England notwithstanding his insufficiency in the knowledge of Divinity to hold and retain all his former Ecclesiastical Dignities and Benefices whereof the King was Patron together with his Bishoprick he then succeeded Fulco Bishop of London for so long time as the Pope should please to grant him a Dispensation whose Dispensation alone would not bar the King to Present to those Dignities and Benefices being all void in Law by making him a Bishop He had also the like Patent of Commendam retinere as to his Benefices and Ecclesiastical Preferments in Ireland And this Patent of such a Commendam being made by the King his Lords and Judges is for that reason the more remarkable vid. Le Hist. of the Church of Great Britain pag. 84. According to the proper and ancient Account Commendams were originally introduced in favour and for advantage of the Church which is Commended in favorem utilitatem Ecclesiae quae Commendatur Imola in ca. Nemo de Elect. in 6. says that Commendams are not to be Nisi ex evidenti Ecclesiae Commendatae necessitate vel utilitate The distinction of Temporal and Perpetual Commendams in the Canon Law is of no great use with us indeed in the Church of Rome according to the former mode of Commendams a vacant Church is Commended either by the Authority of the Pope if it be a Cathedral ca. penult ult 21. q. 1. or by the Authority of the Bishop if it be a Church Parochial This is commonly Temporal or for Six months and is in utilitatem Ecclesiae the other commonly Perpetual and are magis in subventionem eorum quibus commendantur quam ipsarum Ecclesiarum And a Commendatary for life is the same in reality with the Titular These Commendams in their Original were Instituted to a good purpose but after used to an evil end For when by reason of Wars Pestilence or the like the Election or Provision could not be made so soon as otherwise it might the Superiour did Recommend the vacant Church to some honest and worthy person to govern it besides the Care of his own until a Rector were provided who then had nothing to do with the Revenues but to govern them and consign them to another But in process of
and thereon the Ordinaries Approbation the way is open for Admission if no other Legal impediment appears to the Ordinary yet the Canon requires that notwithstanding the Bishops Approbation upon the party's Examination he may not Ordain him unless he hath in esse or posse a promise or a prospect of some Ecclesiastical Living whereof to assume the Cure and whereon to receive subsistance unless the Ordinary will maintain him until he be so provided in case he hath not of his own wherewith to subsist without such provision for our Law and Practice both requires that they should be Incumbents and not Mendicants By the Fifth Canon or Constitution made by that great Convention of no less than One hundred and Eighty Bishops at Rome under Pope Alexander the Third it was Ordained That if any Bishop should Admit any man to be a Presbyter or a Deacon without the Title of a Place that may afford unto him things necessary for the maintenance of his life Let the Bishop himself sustain him until he provide a Living for him except he be able of his own patrimony to sustain himself In the Council of Carthage it was Ordained Quod nullus ordinetur Clericus nisi probatus aut examine Episcoporum aut populari testimonio cap. Nullus 24. dist And by the Council of Pope Martinus it was Decreed That all such as were Ordained Presbyters or Deacons without Examination were to be expell'd the Clergy c. si 24. Dist The Subject-matter whereon they are to be Examined differs with us from that used in the Church of Rome chiefly in these Three particulars viz. Quoad Genus quoad Patriam quoad Fidem vid. c. quando 24. Dist There are several ancient Canons which give this Jus Examinationis to Archdeacons c. adhaec c. ut nostrum De Offic. Arch. c. si quis 94. Dist yet Rebuffus tells us that at this day in France they have lost that part of their Office by a kind of desuetude or disuse thereof it now wholly belonging to the Episcopal Order in that Kingdom as in this and most other Churches of Christendom c. Si servus 54. Dist c. accepimus de aetate qualitate Vacatio Beneficii or the Avoidance of an Ecclesiastical Benefice which you meet with also in the ensuing Abridgment as it is opposed to Plenarty is the want of a lawful Incumbent during which vacancy the Law looks on the Church quasi viduata without her Spiritual husband and our Common Law on the Possessions thereof as in abeiance An Avoidance in the causes thereof as practicable with us differs much from that at the Canon Law where there are thrice as many as are in use with us Rebuffus enumerates above Thirty Causes of such Avoidances but of such relation to the Pontifical Constitutions that not above a Third part of them takes place in this Realm It is Quaestio Juris whether a Benefice be void before Sentence Judicially pronounced albeit in the Law it be said Quod ipso facto sit privatus Admitting the Crime to be committed for which the Law says he shall be deprived ipso facto yet the Question is held in the Negative unless it plainly appears that the mind of the Legislators were otherwise as if those words were added viz. Beneficium eo ipso vacare ita ut alteri Libere possit conferri c. Dudum 2. de Elect. As when one takes a second Benefice Incompatible Aquin. 2. 2. q. 62. art 3. Cajetan ib. Sotus lib. 1. de Just q. 6. art 7. Covar de Matrim p. 2. cap. 6. § 8. nu 9 13. and generally the Modern DD. But the Question is put a little further As whether the Benefice be void when it is said in the Law Sit privatus ipso facto absque alia declaratione Covarruvios Sotus and Henriquez de Excom c. 56. and many other of the later Writers are of Opinion that it is not void but that a declaratory Sentence of the Crime is requisite and that Clause absque alia declaratione is to be understood of a declaration of the penalty incurred not of the Crime committed which exposition of the words though it may seem somewhat strained is notwithstanding by the frequent use and practice thereof among the Canonists sufficiently confirmed And those Laws which say that the Benefice shall be void ipso jurc as in Extrav Ambitiosae De reb Eccl. do not seem to be taken in that strict and rigorous sense Vt sponte teneatur se Reus spoliare Less de Just Jur. lib. 2. cap. 29. de Judice Dub. 8. nu 68. If it shall hence be demanded of what force energy or operation then are such Laws whereby a man is ipso jure deprived of his Benefice by reason either of some Crime committed or another Benefice Incompatible accepted the Answer which the Canonists make to it is That by the words ipso jure privatus Beneficio the Offender doth immediately lose the very Title he had to the Benefice insomuch as that he is no longer Dominus Beneficii yet doth retain the possession thereof of which he cannot be Deprived nisi causa cognita without a fair Trial at Law Gloss in c. Licet Episcopus 28. de Praebendis in 6. DD. ibi Note This is not said by way of interpretation of these words ipso jure in any Statute Law of this Realm but by way of Exposition thereof among the Canonists Although the Clergy have ever been had in the highest repute both with Prince and People where the Gospel hath been received and have been honoured with divers Priviledges and Immunities above the Laity yet the Law hath ever held it as prejudicial to the Church That Plures honores Ecclesiastici uni personae sint tribuendi At a Council conven'd at Westminster in the Five and twentieth year of the Reign of H. 1. being above Five hundred years since Honorius 2. then Pope in this Synod it was Ordained in these words Praecipimus ne uni personae in Ecclesia Archidiaconatus aut diversi tribuantur honores To this purpose is the Third Canon of the Lateran Council under Pope Alex under Quia nonnulli diversas Ecclesiasticas Dignitates plures Ecclesias Parochiales contra Sacrorum Canonum instituta nituntur adquirere ita ut cum unum Officium vix implere sufficiant stipendia sibi vendicent plurimorum ne id de caetero fiat districtius inhibemus Et quia tantum quorundam processit ambitio ut non duas vel tres sed Sex vel plures Ecclesias perhibeantur habere nec duabus possunt debitam provisionem impendere per Fratres Coepiscopos nostros hoc emendari praecipimus Likewise Gregory the Tenth who succeeded Clement at a Council at Lyons Pluralitatem Beneficiorum Curatorum damnavit Hen. de Knyghton de Event Angl. lib. 2. In like manner it appears by the Fourteenth Canon of the Council at Rome under Pope Alexander 3. An. 1180. That
Plurality of Benefices is there forbidden as a vice smelling of Avarice and Ambition dangerous and prejudicial to the People whose Souls are neglected by such Pastours One of the chiefest Reasons why the Law forbids Pluralities is because it enjoyns Residence both which are inconsistent in the same Incumbent Aquinas says That the having of Two Benefices is not intrinsecally evil or Malum in se nor that it is altogether indifferent but carries in it a species of Evil yet so as that upon due Circumstances it may be capable of a qualified lawfulness Aquin. quod-lib 9. art 15. To the many Inconveniencies which the Law doth specifically observe to follow upon Pluralities this may not impertinently be added That thereby the pious Intention of Founders is frustrated The Council of Trent hath these words of it Haec Pluralitas est perversio totius Ordinis Ecclesiastici Concil Trid. Sess 24. cap. 17. Pope Alexander the Third said That Pluralitas Beneficiorum certum continet animarum periculum c. Quia in tantum 7. de Praebend The Canonists speaking of this Subject in reference to Dispensations to salve the matter if possible and bring both ends together have found out a very prety distinction of Beneficia Incompatabilia primi generis and Incompatabilia secundi generis But we are not concern'd in that Distinction In that Council of Trent it was said by the Bishop of Bitonto That Plurality of Benefices unknown to the First Ages was not brought in by the Court of Rome but by Bishops and Princes before the Popes took upon them to regulate the matter of Benefices throughout all Christendom Yet the Author of the History of the said Council of Trent lib. 2. says That Clement the Seventh Commended to this Nephew Hippolitus Cardinal de Medicis in the year 1534. all the Benefices of the world Secular and Regular Dignities and Parsonages Simple and with Cure being vacant for Six months to begin from the first day of his possession with power to convert all the Profits thereof to his own use The waies whereby an Ecclesiastical Benefice may be acquired are not many but the Causes for which an Ecclesiastical person may thereof be Deprived are very many generally they may all be reduced to these Three Heads 1 By the Disposition of the Law 2 By the Sentence of the Judge or 3 By a free and voluntary Resignation which though it be not properly a Deprivation yet it is an amission of the Benefiee Deprivation by the disposition of the Law is either by reason of some Crime whereunto the penalty of Deprivation ipso facto is by the Law annexed or by reason of accepting another Benefice Incompatible The Pontifical Law adds Two more which do not concern us viz. Ingress into Religion and Matrimony The Crimes that incurr Deprivation are many but they must be proved for the Beneficed party is not bound sponte sua to quit his Benefice ante Sententiam Judicis Less de Benefic cap. 29. Dub. 8. And when a man is not Jure Privatus but only Privandus in that case his Benefice cannot be bestowed on another unless a Privative Sentence be first pronounced by the Judge If a person Beneficed be long absent and Non-resident from his Benefice the Benefice is not by reason of such long Absence void ipso Jure but the Law in that case also requires a Judicial Sentence of Deprivation and that only post trinae Citationis in eorum Ecclesiis publice Edictum Gloss in c. Quoniam ut lite non contestata c. One of the chiefest Reasons in Law why Pluralities are prohibited is for the prevention of Non-residence as appears by the Third Canon of the Lateran Council which Canon after it prohibits the having of divers Ecclesiastical Dignities or more Parochial Churches than one it makes provision against Non-Residence in these words viz. Cum igitur vel Ecclesia vel Ecclesiasticum Ministerium committi debuerit talis ad hoc persona quaeratur quae Residere in loco curam ejus per seipsum valeat exercere Quod si aliter Actum fuerit qui receperit quod contra Sacros Canones acceperit amittat qui dederit largiendi potestate privetur Likewise by the Thirteenth Canon of that great Council of One hundred and eighty Bishops Assembled at Rome by Pope Alexander the Third in the year of our Lord 1180. it was Ordained That such persons should be preferr'd to Ecclesiastical Dignities as shall be actually resident with their people and undertake the Cure of their Souls by doing the work of their Ministry in their own persons otherwise to deprive them of the Office and Benefice conferred on them and they who do conferr them without these Conditions let them lose the right of conferring Offices and Benefices By this appears how strict and exact the Law is against Non-Residence in the Romish Church One of the most famous Abbots and Monasteries in Britain anciently seems to be that of Bangor in Flintshire whereof Ranulphus Cestrensis says that Tradunt nonnulli Pelagium fuisse Abbatem apud Famosum illud Monasterium de Bangor This Monastery which Ranulphus speaks of is by our Beda called Bamornabyrig lingua Anglorum in quo says he tantus fertur fuisse numerus Monachorum ut cum in Septem portiones esset cum Praepositis sibi Rectoribus Monasterium divisum nulla harum portio minus quam Trecentos homines haberet qui omnes de labore manuum suarum vivere solebant But concerning Abbots having nothing to do with them nor they with us it being also well known what once they were in this Kingdom and what now they are where the Pope doth exercise his Jurisdiction it may here suffice only to observe That the word Abbates hath anciently had a wide and far different signification from what we now commonly understand thereby for in and among the Laws of King Aethelstan we find the words quatuor Abbates to be taken according to the Glossographist thereon for quatuor hebdomadas That Law directs how and in what manner the Hundred Court shall be held the words are Hoc est judicium qualiter HUNDREDUM teneri debeat In primis ut conveniant semper ad quatuor ABBATES faciat omnis homo Rectum alii which the Glossary calls Locum plane mendosum and by the quatuor Abbates will have quatuor hebdomadas to be understood which is the more probable by what appears in one of the Laws of King Edward Father of the said Aethelstan who began his Reign in An. 901. being the Son of King Alured the words of which Law are Volo ut omnis praepositus habeat GEMOTUM semper ad QUATUOR EBDOMODAS efficiat ut omnis homo rectum habeat omne placitum capiat terminum quando perveniat ad finem By the word Gemotum in that place is meant Conventus Publicus Concilium but chiefly Placitum as appears by the 107th Law
that known Rule in Law Actio personalis moritur cum persona the Reason being because the Obligation arising thence is meerly Personal non est ad aliquid dandum sed ad aliquid agendum yet Navar. Adriaâ— and others who hold the contrary will not be so answered for though they agree the Rule of Law yet they deny the foresaid reason of that Rule to hold in this case for say they the obligation in this case is not purely and meerly Personal as is commonly supposed but doth quodammodo affect the Estate of the Defamer whether alive or dead He gives an Instance A man sets his Neighbours House on fire and dies his Heirs shall make good the dammage done by that fire A mans Good Name and Reputation is far more precious than his habitation he that consumes that Good Name and Credit without cause shall refund the dammage out of his Estate and death it self before satisfaction made shall not excuse his Heirs vid. Navarr c. 18. nu 45. Adrian quodlibet 11. So likewise as to the other Question Vtrum defuncto sit Fama restituenda there are who hold it in the Affirmative Quia Fama est bonum quod homo etiam post mortem censetur possidere But when all is said for some will superabound in their own Judgments the said Rule of Law must stand void of all Exceptions and hold good and applicable to the Premises That Actio Personalis moritur cum persona Among all those horrid Offences whereby the Church is or can be violated that of Sacriledge seems to look with the blackest face which though as a Felonious act may fall under a Temporal cognizance yet the Canon Law concludes it as a thing in its own nature properly subjected to the determination of the Ecclesiastical Jurisdiction It is now nigh a Thousand years since Withred King of Kent conven'd a Synod wherein Brithwaâ—d Archbishop and Primate of all Britain was President In which Synod it was so long since declared in these words viz. Horrendum est hominibus Deum vivum expoliare tunicamque ejus haereditatem semdere By the Laws of Alured King of the West-Saxons Leg. 7. the Sacrilegious person was to lose that hand wherewith he did the Fact Si quis in Ecclesia furetur aliquid amputetur manus de qua furatus est In the time of Queen Elizabeth there were a Sacrilegious kind of Church-Plunderers who under pretence of abolishing Superstition demolished Ancient Tombs raz'd the Epitaphs and Coat-Armours of most Noble Families and other Monuments of venerable Antiquity took the Bells out of Churches and uncovered the Roofs of Churches by plucking off the Lead but these Birds of Prey had their wings soon clip'd by the said Queens Proclamation which was effectually put in execution for the restraint of such Sacrilegious Rapines King Guthred who by St. Cuthbert's Command was in Childhood taken out of a Servile estate and made King of Northumberland about the year 890 made such an Edict against the Sacrilegious persons as thunder'd them all into Hell Gravissimae maledictionis Anathemate percussit ut cum Juda Proditore Domini damnationis sententia feriantur Simeo Hist de Dunelm Eccl. Nor are Korah and his Confederates the only persons whom the Earth interr'd alive for their Rebellion against the Sacerdotal Function for if you will credit Tradition the like hath since happened in the case of Sacriledge to the Scotch Army which in the said Guthred's time had no sooner according to their Modern Practice fleec'd the Church of Lindisfarne nigh Tweed to tunick their Longshanks but the Earth greedily opened her mouth and devour'd these Devourers at that very instant when they were all ready to engage in a Battel with the said King of Northumberland dict Sim. ibid. But not to rake up Antiquity for discovery of what Legends and Romances lie under the Ashes thereof this is as well True as Chronicled That King William Rufus was Casu fortuito non voluntarie darted to death instead of a Stag by a certain Franck one Walter Tyrell in the same place which his Father the Conqueror had Sacrilegiously disecclesiated for more than 30 Miles to Forest it into Speluncas latronum lustra ferarum This was a real Sacriledge in a Victorious Monarch which added little to the Credit of his Conquests but that in Pope Boniface the Seventh if Historians do not bely him was a Personal Sacriledge who when he understood that the Roman Citizens conspired against him took with him all the Jewels of the Church of St. Peter and fled to Constantinople where he converted the same into money for the proper use of his Sacrilegious Holiness Another gross offence and little inferiour to the former within the Cognizance of the Church is Simony or that Art Magick whereby Parsons scarce worth the name of Persons as the Devil did into our Natural Mother insensibly so they Serpentine themselves into our Spiritual Mother the Church visible invisibly Hildebrand or by an alias Pope Gregory the Seventh Conven'd a Synod General against Church-purchasers and buyers of Ecclesiastical Livings and against such Bishops as from the hands of Kings or Emperours receive the investure of their Bishopricks per traditionem Annuli Baculi he said That Quisquis Episcopatum mercatur contra Spiritum Sanctum qui donum Dei dicitur facit He likewise made a Decree in the year 1074 That not only the Buyer and Seller of any Ecclesiastical Office but whoever also that is consenting thereunto shall be damned with Simon Magus Simeon Dunelm Hist de Gest Reg. Angl. It is unavoidable for the Pope who hath the Keys of Hell by his girdle hath so Decreed it But Pope Gelasius was in this matter better natur'd by far for he left some place for Repentance and proceeded not an inch beyond a Reversable Anathema Si quis vendiderit aut emerit vel per se vel per alium Episcopatum Abbatiam Deconatum Archidiaconatum Presbyteratum Praeposituram Praebendam Altaria vel quaelibet Ecclesiastica Beneficia Promotiones Ordinationes Consecrationes Dedicationes Ecclesiarum Clericalem tonsuram Sedes in choro aut quaelibet Ecclesiastica Officia vendens emens Dignitatis Officii sui ac Beneficii periculo subjaceat Qâ—â—d nisi resipuerit Anathematis mucrone perfossus ab Ecclesia Dei quam â—aesit modis omnibus abscidatur The like was Ordain'd by a Council of 300 Bishops Conven'd at Rome Pope Calixius the Second being President viz. Ordinari quemquam per pecuniam in Ecclesia Dei vel promoveri auctoritate Sedis Apostolicae modis omnibus prohibemus Si quis vero in Ecclesia Ordinationem vel Promotionem taliter adquisierit acquisita careat prorsus dignitate dict Simeo ubi supra The same in terminis you have Ordain'd at a Synod Conven'd at Westminster An. 1126. in the Reign of King Henry the First Honorius the Second being then Pope viz. Sanctorum Patrum vestigiis
own destruction 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Blasphemare that is convitiis incessere to speak reproachfully and wickedly of God to ascribe to the Creature what belongs only to God vel ab eo removere quod illi convenit says St. Ambrose or to preferr a False god before the True God Rev. 13. 1. This kind of Blasphemy referrs chiesly to God the Father There is Blasphemy likewise which referrs to God the Son such was the Blasphemy of the Pharisees when they said of Christ That he was a man gluttonous and a Wine-bibber c. This they might probably say out of their ignorance of his Person and therefore a much inferiour Blasphemy to that against the Holy Ghost which is ever against Conscience and out of Envy and Malice Bartolus is of opinion That there is a Blasphemy also which referrs to Men. Bart. in l. Item apud § ait Praetor ff de Injur But this is not that Blasphemy here intended although that Opinion seems to be back'd with good Authority 1 Cor. 4. 13. Tit. 3. 2. yet St. Austin who understood this matter better than Bartol was of another opinion Est autem Blasphemia says he cum aliqua mala dicuntur de boâ—is Itaque jam vulgo Blasphemia non accipitur nisi mala verba de Deo dicere De hominibus namque dubitari potest Deus vero sine controversia bonus est D. August in lib. de Morib Manichaeor cap. 11. It is but a weak illustration of the matter to say Quod in homines est Contumelia hoc in Deum est Blasphemia It may formally be defined to be an Injurious and Contumelious Speech against God It is diametrically opposed to Divine Praise and both these may be as well Internal of the Heart as External of the Mouth for in Gods Omnisciency there is the language of the Heart as well as of the Lip and there may be Blasphemy in the one as well as of the other By the Levitical Law the Blasphemer was to be stoned to death By the Civil Law he was likewise to die for it Authen ut non Luxurientur in fin But this Penalty in those daies by reason of a defect of Religion and Justice is not inflicted says Lucas de Penna in L. omnes C. de Delatorib Jul. Clarus § Blasphemia nu 3. yet Blasphemers of the highest rank are at this day put to death in some places in others they are condemn'd to the Oars in some places they are Banish'd in others they have their Tongues cut off or a hole bored through with an hot Iron ut refert Clarus By the Canon Law solemn Penance was anciently enjoyn'd to Lay-Blasphemers c. 2. de Maled But this is not now in use The Council of Lateran under Pope Leo the Tenth Commanded that such Blasphemers should not be absolved in foro Conscientiae absque gravissima poenitentia dict Concil Sess 9. § Ad abolendum There are some who would have Heresie to be a kind of Blasphemy doubtless there are some Heresies that are very Blasphemous but Heresie in sui natura is quite another thing for as Blasphemy is de Deo male dicendo so Heresie is de Fide Catholica male eligendo for the word Haeresis is derived 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eligo whence they are understood as Hereticks who departing from the true Catholick Faith of Christ aliam sectam Eligunt Some there are who would have all Hereticks to be divided into the Major and the Minor by the Major they will have to be understood all those qui nominatam haeresin praedicant such of old were the Manichaeans Arrians Eutychians Samaritans Ophites Donatists Priscillianists and the like By the Minor those qui haeresin innominatam defendunt Drosaeus in Method Jur. Thus the Philosophers of old had their Sects also among them unusquisque sibi aliquod genus disciplinae ac Sectae proprium elegit there were various Factions among them which by the Greeks were termed Heresies but by the Latins Sects Among the Ancient this word Heresie was not sensed in that odium as now with us nor the word Secta among the Latins St. Paul himself speaks of it in one place as in a sense almost indifferent Act. 26. 5. Notwithstanding it is well known that the Holy Scripture generally understands and speaks of it in pessimam partem so in Tit. 3. 10. A man that is an Heretick after the first and second Admonition reject And in 1 Cor. 11. 19. There must be Heresies among you that they which are approved may be made manifest And in Gal. 5. 20. Heresies are numbred among the works of the Flesh And in 2 Pet. 2. 1. they are called Damnable Heresies By the Civil Law an Heretick can neither make a Testament nor receive any benefit by a Testament L. fin C. de Haereticis And if you will believe Tho. Aquinas as in this you very safely may all Hereticks by robbing the Holy Scriptures of the Truth to establish their pernicious Lies are guilty of a kind of Sacriledge and by Fathering such Lies on God tacitly of Blasphemy Aquin. ar 2. In the One and fortieth Chapter of the ensuing Treatise you have a brief Catalogue of the Councils according to our computation here you have them more succinctly according to the Roman Account Sebastus a Judge in Thessolonica in the time of Constantinus Harmenopulus says That some of the Ecclesiastical Canons were of the Holy Apostles others of the Seven Oecumenical Councils others of particular Synods and others of certain Fathers of the Church to say nothing of the Papal Decretals ordered to be compiled by Pope Gregory the 9th The First Oecumenical Council was Conven'd at Nice under Constantine the Great against Arius who held the Son of God to be a meer Creature This Council consisted of 318 Bishops by whom Arius was Anathematiz'd and his Heresie condemned The Second was at Constantinople under Theodosius the Great against the Pneumatomachists who denied the Divinity of the Holy Ghost This Council consisted of 150 Bishops by whom these Hereticks together with their damnable heresie was accursed The Third was at Ephesus under Theodosius the Less against Nestorius and Celestinus who held that Christ was only Man At this Council were 200 Bishops by whom these Hereticks were likewise censured as the former The Fourth was at Chalcedon under Marcianus against Dioscorus and Eutyches who held that the Two natures of the Word viz. of God and Man were after the Union reduced into one Nature for which they were Anathematiz'd by 630 Bishops there Convened The Fifth was at Constantinople under Justinianus the First where 160 Bishops were present who confirmed the Decrees of the Fourth Synod and condemned Origen and all other Hereticks The Sixth was also at Constantinople under Constantinus Barbatus where were Assembled 170 Bishops who pronounced the Sentence of Anathema against all those qui unum in Christo voluntatem unam agendi vim
Excommunicate person should be present whilst he was at Mass having in his life-time been Excommunicated by the said Priest for refusing to pay his Tithes vid. Cron. dict Bromton de Regn. Cantiae Excommunication is of such a large extent that this World is too narrow to contain it therefore it extends it self to the next World also and that not only in reference to the Soul but also to the Body insomuch that the interr'd Bodies of persons dying under Excommunication have often been inhumanely exhumated and taken out of their Parochial graves to associate with the rotten Carkases of bruit Beasts a President whereof you have in King Edward the Thirds time when the Pope by his Bull to the Bishop of Lincoln commanded That the Bodies of all such Excommunicates as in their Life-time had adhered to the Lady Wake in the Contest between her and the Bishop of Ely touching a Mannor should be taken out of their Graves and cast out of the Church-yard This is much worse than to be denied the honour of a Christian burial which by the Council at Rome An. 1180. was the punishment of such Lay-persons as transferr'd the right of Tithes to other Laicks without delivering them to the Church yet by the Sixth Canon of that Council it is Ordain'd That no man shall be Excommunicated or suspended from his Office until he be legally and duly summoned to appear and answer for himself except in such cases as deserve summary Excommunication It was a strange Excommunication as to the new and insolent Form thereof wherewith Pope Theodorus Excommunicated Pyrrhus Patriarch of Constantinople who having been infected with the Heresie of the Monothelites and thereupon Excommunicated and upon his Recantation absolved relapsed into the same Error whereupon the said Theodorus Excommunicated him the second time but in such a way and manner as never had a former President or second Practice For he infused some drops of consecrated Cup into Ink and therewith writ a Sentence of Anathema against Pyrrhus Hist Mag. Cent. 7. cap. 39. Whether the Dead may be Excommunicated was the first Question moved in the Fifth General Council at Constantinople An. 551. under the Emperour Justinian To which Eutychius answered That as Josiah opened the Sepulchres of the Dead and burnt their Bones So the Memorials of such might be accursed after their death who had injured the Church in their life for which pertinent Answer the said Emperour made him Bishop of Constantinople so that he succeeded Menas who about the same time had departed this life suddenly sitting the Council That worthy Prelate who affirmed That it was certainly unlawful to Excommunicate any man for not paying the Fees of Courts is scarce so generally credited in his Law as he may deserve to be in his Doctrines especially when his Reason for that Assertion viz. That a Contumacy there speaking of Courts Ecclesiastical is an Offence against the Civil Power is duly weighed and considered and more especially when such Fees are not paid notwithstanding the Orders and Decrees of such Courts for the payment thereof Contempts of which kind might pass wholly unpunished if Ecclesiastical Censures should not take place in such cases Many are the Prejudices which ensue upon Excommunication some whereof in case of obstinate persistency reach us as Men as well as Christians and seem as it were to unman us as well as unchristian us extending per brachium Seculare as well to our Civil Liberty as per censuram Ecclesiasticam to our Christian having a dreadful influence both on Body and Soul and that in both worlds Rebussus enumerates no less than above Threescore of these penalties for so he calls them Poenae contra Excommunicatos Rebuff de Excom non vitand Such persons as are extra Communionem Ecclesiae or Excommunicates with us were apud Hebraeos anciently called Aposynagogi as cast out of the Synagogue and for their Contumacy Extorres to be shunn'd of all men until they repented Old Such as are Anathematiz'd and under the greater Excommunication are as it were expell'd out of all Humane Society and banish'd from Mankind understand it of those within the Church such an Anathema may be somewhat compared to that Punishment which the Romans of old called Interdictio ignis aquae borrowed from the Graecians which their great Legislator Draco enacted as a Law to the Athenians and which Punishment in truth was second to none save that which is Capital Towards the close of this Ecclesiastical Abridgment you have some mention made of the Statute of Circumspecte Agatis In the Thirteenth year of the Reign of King Edward the First An. 1285. the Bounds and Limits of both Jurisdictions Spiritual and Temporal were fix'd by Parliament by a Statute under that Title the English whereof translated from the Latin out of the Records runs thus viz. The King to his Judges sendeth Greeting Vse your selves circumspectly in all matters concerning the Bishop of Norwich and his Clergy not punishing them if they hold Plea in Court Christian of such things as be meerly Spiritual viz. of penance enjoyned for deadly Sin as Fornication Adultery and such like for the which many times corporal penance or pecuniary is enjoyned specially if a Freeman be convict of such things Also if Prelates do punish for leaving Church-yards unclosed or for that the Church is uncovered or not conveniently decked in which cases none other penance can be enjoyned but pecuniary Item If a Parson demand of his Parishioners Oblations and Tithes due and accustomed or if any person plead against another for Tithes more or less so that the Fourth part of the value of the Benefice be not demanded Item If a Parson demand Mortuaries in places where a Mortuary hath used to have been given Item If a Prelate of a Church or if a Patron demand a ` Pension due to themselves all such demands are to be made in a Spiritual Court And for laying violent hands on a Priest and in case of Defamation it hath been granted already that it shall be tried in a Spiritual Court when money is not demanded but a thing done for punishment of Sin and likewise for breaking an Oath In all cases afore rehearsed the Spiritual Judge shall have power to take knowledge notwithstanding the Kings Prohibition vid. Lindw Constit lib. 2. Tit. De Foro-Competenti Vid. Full. Chur. Hist. lib. 3. p. 79. Now whereas some doubt hath heretofore been whether this were indeed an Act of Parliament or any thing more than a Constitution made by the Prelates themselves or only a meer Writ issued out from the King to his Judges Sr. Ed. Coke Instit. par 2. pag. 487. resolves it in express terms thus viz. Though some have said that this was no Statute but made by the Prelates themselves yet that this is an Act of Parliament it is proved not only by our Books but also by an Act of Parliament By this Statute of Circumspecte Agatis the
the Convocations of the same Clergy are and always have been and ought to be assembled only by the Kings Writ The Convocation is under the power and Authority of the King 21 E. 3. 45. b. 12. After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself Supream Head under Christ of the Church of England and Ireland in the Preface of his Injunctions given as well to all the Clergy as Laity of this Realm the Close whereof is as followeth viz. All which singular Injunctions the Kings Majesty ministreth unto his Clergy and their Successors and to all his loving Subjects straitly charging and commanding them to observe and keep the same upon pain of Deprivation Sequestration of Fruits or Benefices Suspension Excommunication and such other Coercion as to Ordinaries or others having Ecclesiastical Jurisdiction whom his Majesty hath appointed for the due execution of the same shall be seen convenient Charging and commanding them to see these Injunctions observed and kept of all persons being under their Jurisdiction as they will answer to his Majesty for the contrary And his Majesties pleasure is That every Justice of Peace being required shall assist the Ordinaries and every of them for the due execution of the said Injunctions 14. The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth were as followeth viz. 1. Whether Parsons Vicars and Curates and every of them have purely and sincerely without colour or dissimulation four times in the year at the least preached against the Usurped power pretended Authority and Jurisdiction of the Bishop of Rome 2. Whether they have preached and declared likewise four times in the year at least that the Kings Majesties power authority and preheminence within his Realms and Dominions is the highest power under God 3. Whether any person hath by writing cyphring preaching or teaching deed or act obstinately holden and stand with to extol set-forth maintain or defend the authority jurisdiction or power of the Bishop of Rome or of his See heretofore claimed and usurped or by any pretence obstinately or maliciously invented any thing for the extolling of the same or any part thereof Likewise by the Articles of Religion agreed on by the Convocation held in London and published An. 1553. by the Authority of King Ed. 6. it is declared That the King of England is Supream Head in Earth next under Christ of the Church of England c. and that the Bishop of Rome hath no Jurisdiction in this Realm The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces and the whole Clergy in the Convocation held in London An. 1562. and published by the Authority of Queen Elizabeth That the Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all Causes doth appertain and is not nor ought to be subject to any Forreign Jurisdiction Which Articles being the Articles of the Church of England were afterwards ratified and confirmed by his Majesty King CHARLES I. of ever Blessed Memory by his Royal Declaration thereunto prefixed in which Declaration you have as followeth viz. That we are Supream Governour of the Church of England and that if any difference rise about the External Policy concerning the Injunctions Canons or other Constitutions whatsoever thereto belonging the Clergy in their Convocation is to order and settle them having first obtained leave under our Broad Seal so to do and We approving their said Ordinances and Constitutions provided that none bâ— made contrary to the Laws and Customes of the Land Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth concerning both the Clergy and Laity of this Realm published Ann. 1559. being the first year of her Reign it is enjoyned That all Deans Archdeacons Parsons Vicars and all other Ecclesiastical persons shall faithfully keep and observe c. all and singular Laws and Statutes made for the restoring to the Crown the ancient Jurisdiction over the State Ecclesiastical and abolishing of all Forreign power repugnant to the same c. By the Statute of 25 H. 8. c. 19. Appeals to Rome are prohibited and it is Ordained that in default of Justice in any of the Courts of the Archbishops of this Realm it shall be lawful to appeal to the King in his Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt in the same manner as was before used to the See of Rome And as by the said Statute there may be an Appeal to the King in Chancery when the Suit is in the Archbishops Court or some Peculiar exempt so in some Cases the Appeal may be to the King generally as he is Supream Head of all Ecclesiastical Jurisdiction within the Realm for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction which had been usurped by the Bishop of Rome 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces Rex est Mixta persona cum Sacerdote Et causa Spiritualis Committi potest Principi Laico Cassan in Catal. glo mund p. 5. Consid 24. The King of England c. is Persona Sacra mixta cum Sacerdote and at his Coronation by a solemn Consecration and Unction becomes a Spiritual person Sacred and Ecclesiastical and then hath tam Vestem Dalmaticam as an emblem of his Royal Priesthood quam Coronam Regni in respect of his Regal power in Temporals and is Supream Governour in all Causes and over all Persons as well Ecclesiastical as Civil The King is Supream Ordinary by the Ancient Common Law of England before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him he might make a Grant of a Church to a man to hold to his own proper use he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary but also give him Episcopal Jurisdiction he might Present to Free Chappels in default of the Dean by Lapse and that as Ordinary and in respect of his Supream Ecclesiastical Jurisdiction he might dispense with one not lawfully born to be a Priest albeit the Ecclesiastical Laws allowed within this Realm do prohibite it but the reason is for that it is not Malum in se but Malum prohibitum In a word All that the Pope was wont to do in such cases within this Realm as
which in the days of King Lucius was an Archbishoprick as aforesaid till St. Augustine in the year 598 took on him the Title of Archbishop of England setling his See at Canterbury 8. Upon the abrogating of the Popes power in England by King H. 8. in the Seventh year of his Reign it was concluded that the Archbishop of Canterbury should no more be styled the Popes Legate but Primate and Metropolitan of all England at which time Tho. Cranmer Fellow of Jesus-Colledge in Cambridge who pronounced the Divorce from Queen Katharine of Spain upon his advice given the King to leave the Court of Rome and to require the Opinions of Learned Divines being then in Germany procured such favour with the King that he caused him to be elected to this See of Canterbury and was afterwards with the then Bishop of Duresme made Tutor to King Edward the Sixth 9. The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferiour Diocesses within his Province which is not denied in the case of Dr. James only it is there said That was not as he was Archbishop but as he was Legatus Natus to the Pope as indeed so hâ— was before the tâ—me of King H. 8. as aforesaid by whom that Power together with the Pope was abrogated and so it ceased which the Archbishop of York never had nor ever claimed as appears in the forecited Case where it is further said That when there is a Controversie between the Archbishop and a Bishop touching Jurisdiction or between other Spiritual Persons the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal and that is a right of his Crown to distribute to them that is to declare their Bounds Consonant to that which is asserted in a Case of Commendam in Colt and Glovers Case against the Bishop of Coventry and Lichâ—ield where it is declared by the Lord Hobart Chief Justice That the King hath an immediate personal originary inherent Power which he executes or may execute Authoritate Regia Suprema Ecclesiastica as King and Sovereign Governour of the Church of England which is one of those Flowers qui faciunt Coronam which makes the Royal Crown and Diadem in force and vertue The Archbishop of Canterbury as he is Primate over All England and Metropolitan hath a Supereminency and some power even over the Archbishop of York hath under the King power to summon him to a National Synod and Archiepiscopus Eboracensis venire debet cum Episcopis suis ad nutum ejusâ— ut ejus Canonicis dispositionibus Obediens existat Yet the Archbishop of York had anciently not only divers Bishopricks in the North of England under his Province but for a long time all the Bishopricks of Scotland until little more than 200 years since and until Pope Sixtus the Fourth An. 1470. created the Bishop of St. Andrews Archbishop and Metropolitan of all Scotland He was also Legatus Natus and had the Legantine Office and Authority annexed to that Archbishoprick he hath the Honour to Crown the Queen and to be her perpetual Chaplain Of the forementioned Diocesses of his Province the Bishop of Durham hath a peculiar Jurisdiction and in many things is wholly exempt from the Jurisdiction of the Archbishop of York who hath notwithstanding divers Priviledges within his Province which the Archbishop of Canterbury hath within his own Province 10. The Archbishop is the Ordinary of the whole Province yet it is clear That by the Canon Law he may not as Metropolitan exercise his Jurisdiction over the Subjects of his Suffragan Bishops but in certain Cases specially allowed in the Law whereof Hostiensis enumerates one and twenty The Jurisdiction of the Archbishop is opened sometimes by himself nolente Ordinario as in the Case of his Visitation and sometimes by the party in default of Justice in the Ordinary as by Appeal or Nullities Again it may sometimes be opened by the Ordinary himself without the party or Archbishop as where the Ordinary sends the Cause to the Archbishop for although the Canon Law restrains the Archbishop to call Causes from the Ordinary Nolente Ordinario save in the said 21 Cases yet the Law left it in the absolute power of the Ordinary to send the Cause to the Archbishop absolutely at his will without assigning any special reason and the Ordinary may consult with the Archbishop at his pleasure without limitation Notwithstanding which and albeit the Archbishop be Judge of the whole Province tamen Jurisdictio sua est signata non aperitur nisi ex causis Nor is the Subject hereby to be put to any such trouble as is a Grievance and therefore the Law provides that Neminem oportet exire de Provincia ad Provinciam vel de Civitate ad Civitatem nisi ad Relationem Judicis ita ut Actor forum Rei sequatur 11. If the Archbishop visit his Inferiour Bishop and Inhibit him during the Visitation if the Bishop hath a title to Collate to a Benefice within his Diocess by reason of Lapse yet he cannot Institute his Clerk but he ought to be presented to the Archbishop and he is to Institute him by reason that during the Inhibition his power of Jurisdiction is suspended It was a point on a special Verdict in the County of Lincoln and the Civilians who argued thereon seemed to agree therein but the Case was argued upon another point and that was not resolved Likewise by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations whereby he can as to Plurality sufficiently now Dispense de jure as Anciently the Pope did in this Realm de facto before the making of that Statute whereby it is enacted That all Licenses and Dispensations not repugnant to the Law of God which heretofore were sued for in the Court of Rome should be hereafter granted by the Archbishop of Canterbury and his Successors 12. By the Constitutions and Canons Ecclesiastical Edit 1603. Can. 94. It is Ordained That no Dean of the Arches nor Official of the Archbishops Consistory shall originally Cite or Summon any person which dwelleth not within the particular Diocess or Peculiar of the said Archbishop c. without the License of the Diocesan first had and obtained in that behalf other than in such particular Cases only as are expresly excepted and reserved in and by the Statute of 23 H. 8. c. 9. on pain of suspension for three months In the Case of Lynche against Porter for a Prohibition upon the said Statute of 23 H. 8. c. 9. it was declared by the Civilians in Court That they used to Cite any Inhabitant of and in London to appear and make Answer in the Archbishop of Canterbury's high Court of Arches originally And Dr. Martyn said It had been so used for the space of 427 years before the making of the Statute and upon
Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon for in that case if the Bishop so intermeddle within the Jurisdiction of such Archdeacon or hold Plea within the same he can have but an Action of Covenant against the Bishop and no Prohibition lies in that case The Cognizance which the Archdeacon hath is of matters meerly Ecclesiastical to which end he or his Commissary may hold his Court where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry and from him the Appeal is to the Diocesan 3. An Archdeaconryship being only matter of Function and as supposed not properly Local nor any Indenture made of it it hath been some question heretofore whether a Quare Impedit doth lie of it or not But it was held in the Affirmative for that an Archdeacon hath Locum in choro The power of an Archdeacon was derived from the Bishop and to him he is subordinate To which purpose the opinion of the Court in Hutton's Case upon a Quare Impedit was That if a Suit be before an Archdeacon whereof by the Statute of 23 H. 8. the Ordinary may license the Suit to a higher Court that the Archdeacon cannot in such case balk his Ordinary and send the Cause immediately into the Arches for he hath no power to give a Court but to remit his own Court and to leave it to the next for since his power was derived from the Bishop to whom he is subordinate he must yield it to him of whom he received it and it was said in that Case that so it had been ruled heretofore 4. If after the Clerk hath been presented by the Patron and Admitted and Instituted by the Bishop the Archdeacon shall refuse to Induct him into the Benefice an Action upon the Case lieth for the Clerk against the Archdeacon He hath power to keep a Court which is called the Court of the Archdeacon or his Commissary And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry And from him the Appeal is to the Diocesan 5. Although by the Canon Law if one having a Benefice with Cure of Souls accepts an Archdeaconry the Archdeaconry is void yet it is conceived that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there viz. Provided that no Deanary Archdeaconry c. be taken or comprehended under the Name of a Benefice having Cure of Souls in any Article above-specified and to this Opinion did Wray and the other Justices incline in Vnderhill's Case And indeed an Archdeaconry by the express Letter of that Statute is exempt from being comprehended under the name of a Benefice with Cure for the words are That no Deanary Archdeaconry Chancellorship Treasurership Chantership or Prebend in any Cathedral or Collegiate Church nor Parsonage that hath a Vicar endowed nor any Benefice perpetually Appropriate shall be taken or comprehended under the name of a Benefice having Cure of Souls 6. By the Ecclesiastical Constitutions and Canons of the Church of England no Archdeacon nor indeed any other Ecclesiastical Judge may suffer any general Process of Quorum Nomina to issue out of his Court Except the Names of those to be cited be first expresly entered by the Register or his Deputy under such Process and both Process and Names first subscribed by such Archdeacon or other Ecclesiastical Judge or his Deputy with his Seal thereto affixed And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year the Archdeacon or his Official shall within one month next after the Visitation ended that year and the Presentments received certifie under his hand and Seal to the Bishop or his Chancellor the Names and Crimes of all such as are presented in his said Visitation to the end the Chancellor may not Convent the same person for the same Crime for which he is presented to the Archdeacon which course the Chancellor is in like manner to observe in reference to the Archdeacon after the Bishops Visitation ended The which was Ordained to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts And in cases of remitting Causes from the Inferiour Judge the Archdeacon cannot remit the Cause to the Archbishop but he must remit it to his Bishop and he to the Archbishop Trin. 11 Jac. 7. The Archdeacon within the Jurisdiction of his Archdeaconry may by vertue of his Office have his Visitation if he so please or need shall require once every year but of necessity he is to have his Triennial Visitation Lindw de Offic. Archid. c. 1. verb. Visitatione gloss But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon as the Bishops Vicar and so he may Visit of Common Right but if in such Enquiries he take upon him nomine suo proprio to correct Faults other than such small ones as wherein Custome may warrant him in such case it is held that he hath not power of Visitation de jure communi Lindw ibid. And in all such things as belong to his Visitation he hath Jurisdiction and by Custome over Lay-persons as well as over the Clergy It seems therefore he may do all such things as without the doing and dispatch whereof his Jurisdiction could not clearly appear L. cui Jurisdictio ff de Jurisd om Jud. and therefore wherever he may take cognizance of a matter there he may also give sentence and condemn Extr. de Caus Poss propr c. cum Super. de Offic. Deleg c. ex Literis which is supposed to hold true by Custome and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court whence it is that an Archdeacon may impose a penalty on Lay-men for the not repairing their Parish-Church within his Jurisdiction Extr. eod c. ult Extr. de Offic. Ord. c. 1. Lindw ubi supr verb. Imperitiam For it is expresly enjoyned and ordained That Archdeacons and their Officials shall at their Visitation of Churches take the condition of the Fabrick thereof into special consideration specially of the Chancel and in case there be need of Reparations shall set or fix a time within which such Reparations shall be finished which time is likewise to be set under a certain penalty Lindw de Offic. Archidiac c. Archidiaconi 8. By the Canon Law a man cannot be an Archdeacon under the age of 25 years Can. Nullus in propositum 60 Dist And by the Council of Trent he ought to
The Case of Tithes is parallel to the Case of Proxies and agrees therewith in all points For as Instruction was the cause of the payment of Tithes So Visitation which is ever accompanied with Instruction Littl. ca. de Frankalmoigne 30. b. was the cause of the Proxies And as Tithes are now due and payable to Lay-persons which have purchased Impropriate Rectories although they do not give any Instruction So Proxies are due and payable to Ordinaries out of the Impropriations and Religious houses dissolved although their Visitation ceases And as none can prescribe de non decimando as is commonly held in the Common Law So the Canon Law hath a Rule Quod nulla est adversus Procurationem praescriptio Inst Jur. Canon lib. 2. cap. de Censibus Also Proxies which resemble Tithes in other points may be well compared to them in this point viz That they shall not be subject to extinguishment by unity of possession CHAP. X. Of Diocesan Chancellors Commissaries Officials and Consistories 1. A Description of the Office of such Chancellors and how they differ from the Bishops Commissaries 2. The Antiquity and necessary use of such Chancellors 3. What the Canons Ecclesiastical require touching their Office 4. Whether a Divine that is not a Civilian may be a Chancellour 5. Where and before whom the Bishops Consistories are held 6. What is meant or intended by the word Consistory 7. The great Antiquity of the Bishops Consistories 8. That Antiquity further confirmed and proved 9. The difference between Consistorium and Tribunal 10. Incidents to the Chancellors Office as he is Oculus Episcopi 11. A short digression touching Administrators 12. The Laws and Canons touching Summoners 13. The Constitutions Provincial what provision there touching this Office of Summoners 14. A Judgment at Common Law in Action on the Case against an Apparitor or Summoner for Citing a man wrongfully into the Ecclesiastical Court 15. What a Commissary is how to be qualified with the Precincts of his Jurisdiction 16. Whether a Commissary may Cite persons of several Parishes to appear at his Visitation-Court 17. A Case at Common Law touching a Commissary made by a Dean 18. Whether a meer Lay-person may be a Commissary or Official Other points in Law touching that Office and the Grant thereof 19. Sufficiency or Insufficiency or other defects in Chancellors Commissaries c. properly cognizable not in the Temporal but Ecclesiastical Courts 20. The Office of Chancellorship as to the Right of it is held to be of Temporal but as to the Exercise thereof of Ecclesiastical cognizance 21. Whether the Offices of Chancellor Register c. in Ecclesiastical Courts be within the Statute of 5 Ed. 6. 1. THe Chancellor of a Diocess is a Church-Lawyer or the Bishops-Lawyer or that person who is Commissionated to be aiding and assisting to the Bishop in his Jurisdiction not confined to any one place of the Diocess nor limited as the Bishops Commissaries are only to some certain causes of the Jurisdiction but every where throughout the whole Diocess supplying the Bishops absence in all matters and causes Ecclesiastical within his Diocess By the Statute of 37 H. 8. c. 17. a Doctor of the Civil Law lawfully deputed may exercise all Ecclesiastical Jurisdiction and the Censures thereof By this Chancellor the Bishop within his Diocess keeps his Court according to the Ecclesiastical Laws in all matters pertaining to his Jurisdiction or otherwise relating more immediately to the Church or Government of the Clergy As Bishops in their Episcopal audience have had in all Ages the cognizance of all matters Ecclesiastical as well Civil as Criminal within the Jurisdiction of their Diocess so they have ever had to that end their Chancellors whom the Law calls Ecclesiecdici or Episcoporum Ecdici persons experienced in the Civil and Canon Laws to assist them in matters of Judgment and those whom we now call the Bishops Chancellours are the very self same persons in Office that anciently did exercise Ecclesiastical Jurisdiction under Bishops and were called Ecclesiecdici Papias per Gothofred in L. omnem C. de Episc Cler. in § praeterea ibid. Dr. Ridl View par 2. cap. 2. sect 3. Who forasmuch as they have with them the Bishops Authority every where within the Diocess for matters of Jurisdiction and in that the Bishops and They make but one Consistory are called the Bishop's Vicars General both in respect of their Authority which extendeth throughout the whole Diocess as also to distinguish them from the Commissaries of Bishops whose Authority as it is restrained only to some certain place of the Diocess so also to some certain causes of the Jurisdiction limited unto them by the Bishops for which reason the Law calls them Officiales Foraneos quasi Officiales astricti cuidam foro Dioeceseos tantum Dr. Ridl ibid. 2. Dr. Ridley in his View of the Civil and Ecclesiastical Law says that Chancellors of Diocesses are nigh of as great Antiquity as Bishops themselves and are such necessary Officers to Bishops that every Bishop must of necessity have a Chancellor and that if any Bishop should seem to be so compleat within himself as not to need a Chancellor yet the Archbishop of the Province in case of refusal may put a Chancellor on him in that the Law presumes the Government of a whole Diocess a matter of more weight than can be well sustained by one person alone and that although the Nomination of the Chancellour is in the Bishop yet his Authority is derived from the Law Hostiens Sum. de Offic. Vicar nu 2. For which reason the Law understands him as an Ordinary as well as the Bishop Hostiens ibid. It is most probable that the multiplicity and variety of Ecclesiastical Causes introduced the use and Office of Chancellors originally for after that Princes had granted to Ecclesiastical persons their Causes and their Consistories and Circumstances varying these Causes into a more numerous multiplication than were capable of being defined by like former Presidents necessity call'd for new Decisions and they for such Judges as were experienced in such Laws as were adapted to matters of an Ecclesiastical Cognizance which would have been too prejudicial an Avocation of Bishops from the exercise of their more Divine Function had not the office of the Chancellor in determining such matters been an expedient to prevent the said prejudice or inconvenience 3. By the Constitutions and Canons Ecclesiastical it is Ordered That upon the days of the Visitation every Chancellor Archdeacon Commissary and Official as also at the ordinary time when Church-wardens are Sworn shall deliver them such Books of Articles as whereon to ground their Presentments Also that they shall not suffer any to be cited into Ecclesiastical Courts by any General process of Quorum Nomina nor the same person to be cited into several Ecclesiastical Courts for one and the same Crime for which end the Chancellour and Archdeacon are within one month next after the
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
and used in part by several Nations he compiled them into Volumes and called them Jus Canonicum and Ordained that they should be read and expounded in publick Schools and Universities as the Imperial Law was read and expounded and commanded that they should be observed and obeyed by all Christians on pain of Excommunication and often endeavoured to put them in execution by Coercive power and assumed to himself the power of interpreting abrogating and dispensing with those Laws in all the Realms of Christendom at his pleasure so that the Canonists ascribe to him this prerogative Papa in omnibus jure positivis in quibusdam ad jus divinum pertinentibus dispensare potest quia dicitur omnia Jura habere in Scrinio pectoris sui quantum ad interpretationem dispensationem Lib. 6. de Const cap. licet About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the University of Cambridge vid. Stow and Walsingham in that year Also the Manusc libr. 6. Decretal in New-Colledge Library at Oxford hath this Inscription in the Front Anno Domini 1298. which was in the year 26 Ed. 1. 19. Novembr in Ecclesia Fratrum Praedicator Oxon. fuit facta publicatio lib. 6. Decretal whereby it appears when it was that the Canon Law was introduced into England But the Jurisdiction which the Pope by colour thereof claimed in England was a meer Usurpation to which the Kings of England from time to time made opposition even to the time of King H. 8. And therefore the Ecclesiastical Law which Ordained That when a man is created a Bishop all his Inferiour Benefices shall be void is often said in the Bishop of St. David's Case in 11 H. 4. to be the Ancient Law of England And 29 Ed. 3. 44. a. in the Case of the Prebend of Oxgate it is said That though the Constitution which ousts Pluralities began in the Court of Rome yet a Church was adjudged void in the Kings Bench for that cause or reason whereby it appears That after the said Constitution was received and allowed in England it became the Law of England Yet all the Ecclesiastical Laws of England were not derived from the Court of Rome for long before the Canon Law was authorized and published in England which was before the Norman Conquest the Ancient Kings of England viz. Edgaâ— Aethelstan Alfred Edward the Confessor and others have with the Advice of their Clergy within the Realm made divers Ordinances for the government of the Church of England and after the Conquest divers Provincial Synods have been held and many Constitutions have been made in both Realms of England and Ireland All which are part of our Ecclesiastical Laws at this day Vid. Le Charter de William le Conqueror Dat. An. Dom. 1066. irrot 2 R. 2. among the Charters in Archiv Turris Lond. pro Decano Capitulo Lincoln Willielmus Dei gratia Rex Anglorum c. Sciatis c. Quod Episcopales Leges quae non bene nec secundum Sanctorum Canonum praecepta usque ad mea tempora in Regno Angliae fuerunt Communi Concilio Episcoporum meorum caeterorum Episcoporum omnium Principum Regni mei emendandas judicavi c. See also Girald Cambrens lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Castle wherein it was Ordained Quod omnia divina juxta quod Anglicana observat Ecclesia in omnibus partibus Hyberniae amodo tractentur Dignum enim justissimum est ut sicut Dominum Regem ex Anglia divinitus sortita est Hybernia sic etiam exinde vivendi formam accipiant meliorem But the distinction of Ecclesiastical or Spiritual Causes from Civil and Temporal Causes in point of Jurisdiction was not known or heard of in the Christian World for the space of 300 years after Christ For the causes of Testaments of Matrimony of Bastardy and Adultery and the rest which are called Ecclesiastical or Spiritual Causes were meerly Civil and determined by the Rules of the Civil Law and subject only to the Jurisdiction of the Civil Magistrate But after the Emperours had received the Christian Faith out of a zeal they had to honour the learned and godly Bishops of that time they singled out certain special Causes wherein they granted Jurisdiction unto the Bishops viz. in Causes of Tithes because they were paid to men of the Church in Causes of Matrimony because Marriages were for the most part solemnized in the Church in Causes Testamentary because Testaments were many times made in extremis when Church-men were present giving Spiritual comfort to the Testator and therefore were thought the fittest persons to take the Probats of such Testaments Howbeit these Bishops did not then proceed in these Causes according to the Canons and Decrees of the Church for the Canon Law was not then known but according to the Rules of the Imperial Law as the Civil Magistrate did proceed in other Causes so that the Primitive Jurisdiction in all these Causes was in the Supream Civil Magistate and though it be now derived from him yet it still remaineth in him as in the Fountain CHAP. XII Of Churches Chappels and Church-yards 1. Ecclesia what that word imports the several kinds thereof 2. Possessions of the Church protected by the Statute-Laws from Alienation the care of the Emperour Justinian in that point 3. To whom the Soyl and Freehold of the Church and Church-yard belong to whom the use of the Body of the Church to whom the disposal of the Pewes or Seats and charges of Repairs 4. The Common Law touching the Reparation of Churches and the disposal of the Seats therein 5. The same Law touching Isles Pictures Coats of Arms and Burials in Churches also of Assaults in Churches and Church-yard 6. The penalty of quarreling chiding brawling striking or drawing a Weapon in the Church or Church-yard 7. Where Prescription to a Seat in a Church is alledged the Common Law claims the cognizance thereof 8. The Immunities anciently of Church-Sanctuary as also of Abjuration now abrogated and taken away by Statute 9. The defacing of Tombs Sepulchres or Monuments in Churches punishable at the Common Law also of Right to Pewes and Seats in the Church 10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court 11. A Prohibition upon a surmize of a custome or usage for Contribution to repair a Church 12. Church-wardens are a Corporation for the Benefit not for the Prejudice of the Church 13. Inheritance cannot be charged with a Tax for Repairs of the Church nor may a perpetual charge be imposed upon Land for the same 14. When the use of Church-Books for Christnings first began 15. Chappel the several kinds thereof The Canonists Conceits touching the derivation of that word 16. Where two Parochial Churches are united the charge of Reparations shall be several as before 17. The Emperour Justinian's
within the Town or Parish and he and all those whose Estate he hath in the Mansion-house of the Mannor or other House hath had a Seat in an Isle of the Church for him and his Family only and have repaired it at his own proper charges it shall be intended that some of his Ancestors or of the parties whose Estate he hath did build and erect that Isle for him and his Family only and therefore if the Ordinary endeavour to remove him or place any other there a Prohibition as was resolved in Corven's Case will lie It hath also been further Resolved That if any man hath a House in a Town or Parish and that he and those whose Estate he hath in the House hath had time out of mind a certain Pew or Seat in the Church maintained by him and them the Ordinary may not remove him for Prescription according to Sir Ed. Coke maketh Certainty the Mother of Quietness otherwise a Prohibition will also lie in the case But where there is no Prescription there the Ordinary for avoiding of contention in the Church may place the Parishioners in the Church or publick Chappel according to their qualities and degrees And until the Bishop hath consecrated or dedicated Churches or publick Chappels new erected the Law doth not take knowledge of them qua tales for which reason it is That a Church or not a Church a Chappel or not a Chappel is Tried and Certified by the Bishop 10. Touching the Reparation of Churches the cognizance thereof appertains to the Ecclesiastical Court as was Agreed by the Court in Buck's Case against Amcotts where in a Prohibition the Defendant said That in Hornechurch in Essex are Chappels of Ease viz. Rumford and Haveringe Chappels and that they of Haveringe have used time out of mind c. to contribute to the Reparation of Rumford and that in the time of H. 4. virtute Literar patent concurrentibus iis c. And Rumford was pulled down and erected in a more convenient place within this precinct and circuit viz. twenty eight foot longer and fourteen foot broader Noy That it does not lie 1 Virtute Literà r patent in general is not good But the Patent ought to have been shewn in haec verba or produc'd in Court by which the Court might judge For a new Church cannot be erected without Letters Patents because it is a Sanctuary Ve. 5 E. 3. 26. 1 H. 7. 25. 22 E. 4. the Lord Lisle's Case 2. The Prescription is gone by the erecting in another place and longer c. as aforesaid ve 4. Rep. P. 6. And that shall be taken strict Perkins 761. 7 E. 4. 27. 10 E. 3. 23. But the Court was on the contrary because it is pro bono Publico and in such a case a Pleader by Concurrentibus iis is good As in an Union 11 H. 7. 8. And that the Cognizance for Reparation of the Church appertains to the Spiritual Court and is not like the Case of a Tenure 4 Rep. 86. because the Tenant by that is put to a greater charge and no profit or benefit accrues to the Tenant as it does to the Parishioner And Easter Term ensuing a Consultation was granted by the Court He that hath the Impropriation of a Rectory or Parsonage ought to repair the Chancel and so he ought to contribute to the reparation of the Church if he hath any Land in that Village Mich. 18 Jac. B. R. Serjeant Davies Case Roll. Rep. par 2. 11. The Church-wardens of Denford an Ancient Church in the County of Northampton sue the Inhabitants of Kingstead in the same Parish where there was a Chappel of Ease for contribution to repair the Church of Denford And they pray a Prohibition upon suggestion That time out of mind c. they have used to Repair their own Chappel and only a part of the Wall of the Church-yard of the said Church of Denford And it seemed by the better opinion of the Court that it was not good For their Ease shall not be a disease to the rest of the Parishioners For Popham said That the Assent is not requisite to build a Chappel of Ease and then the Ordinary and the Parson cannot charge the Parishioners with greater charge By Yelverton That the Parson ought to repair the Wall of the Church-yard But by Fenner The Parishioners in the Spiritual Court shall be compelled to do it although that the Frank-tenement be in the Parson Yelvert objected and by Kemp secondary That the Parishoners of repair the Wall of the Church-yard Yet now it was ordered that a Prohibition shall be granted and the Dâ—fendants if they please may demurr upon it Note also B. 5 Jac. B. R. a Derbyshire-Case where a Prohibition in such case was denied 12. Two Church-wardens sue S. for Reparation of the Church according to the Tax assest S. pleads he alwaies offered to pay By which the Sentence in the Ecclesiastical Court passed against them Then they Appeal and Sentence is repealed and 15 l. Costs given to them and they sue for that 15 l. in the Ecclesiastical Court S. pleads a Release of one of the Church-wardens And in a Prohibition it seem'd to the three Justices That that Release is a Bar against the other and that if it be disollowed in the Spiritual Court by the Court it was said a Prohibition shall lie 7 Jac. B. R. rot 852. A Consultation in such case was granted for the Church-wardens in such a case are a Corporation for the benefit but not for the prejudice of the Parish 13 H. 7. 9. 11 H. 4. 12. And they shall recover the Costs to the use of the Church and the Release shall be well enough determined there where the Suit was commenced 13. In Heal's Case against the Church-wardens of Hobleton it was agreed by the Court That for a Tax assest for the Reparation of a Church a Rate made perpetuis duratura temporibus it is not good to bind the Inheritance but yet it is good by way of direction how and how much shall be levied as need requires And in Chamber 's Case a Prohibition was awarded to the Court of the Bishop of Oxford for that that Chambers was sued there for a perpetual charge imposed upon his Land for the Reparation of the Church For by the Court an Inherritance cannot be charged with that In another Case one that was sued in the Ecclesiastical Court for Rates to reparation of the Church alledged that they had overvalued his Land Rating them at the value of 100 l. per. annum they being worth but 60 l. 2 He alledged a Custome in the Parish that they ought to be rated not according to the value of their Farms and Houses but only according to the value of their Sheep-walks and on that matter he pray'd a Prohibition As to the first all the Court except Whitlock Resolved that it is not material because the Rates ought
time of King H. 3. Ed. 3. and Ed. 4. they in the Ecclesiastical Court have not any power to intermeddle with the Precinct of Parish-Churches neither are they there to Judge what shall be said to be a mans Parish-Church And so was the Opinion of the whole Court and therefore by the Rule of the Court a Prohibition was granted 41. Touching the Reparations of a Church and who were liable thereunto this being a question coming in debate before the Judges It was Resolved by the whole Court That for and towards the Reparation of a Church the Land of all as well of Foreigners there not inhabiting as of all others is liable thereunto and this is so by the general custome of the place and this is to be raised by a Rate imposed according to the value of the Land and that in the nature of a Fifteen and this is not meerly in the Realty Williams and Yelverton Justices and Flemming Chief Justice Not the Land but the person of him who occupieth the Land is to be charged Yelverton Justice A man is chargeable for Reparations of a Church by reason of the Land and for the Ornaments in the Church by reason of his coming to Church Williams Justice and Flemming Chief Justice If the person have Land there he is chargeable for both whether he come to Church or not for that he may come to Church if he please 42. In a Prohibition the Case was this The Defendant did Libel before the Bishop of London in the Consistory Court for a Seat in the Church Sentence there passed against the Defendant whereupon he Appealed to the Arches The Court was moved for a Prohibition in regard the Title to the Seat or Pew was grounded upon a Prescription The Court answered c. As for the Title we are not here to meddle with it this being for a Seat in the Church Haughton Justice This Disposition of Pews in the Church belongs of right to the order and discretion of the Ordinary and to this purpose is the case of 8 H. 7. fo 12 and Sir William Hall's case against Ellis Doderidge Justice I moved this case in the Court of C. B. and it was for a Seat in the Church An Action there brought for Disturbance and I there cited Hall's case and 9 E. 4. fo 14. The Case of the Grave-Stone and Coat-Armor for the taking of which an Action of Trespass lies at the Common Law and therefore by the same reason an Action of Trespass should lie for such a Disturbance in a Seat of a Church but there the Judges did all of them say That they would not meddle with the deciding of such Controversies for Seats in the Church but would leave the same to them to whom more properly it belonged Croke Justice Hall's case was this where a man did build an entire Isle in the Church and was at continual charge to repair it if he be disturbed in the use of this he shall for this Disturbance have his remedy at the Common Law and so it hath been adjudged But the Judges all said We are not here to meddle with Seats in the Church Doderidge Justice This Appeal here is like unto a Writ of Error at the Common Law but it doth differ in this By the Appeal the first Judgment or Sentence is suspended but after a Writ of Error brought the first Judgment still remains until it be reversed Coke Chief Justice It was Pym's Case in the Common Bench and 8 H. 7. fo 12. that the Ecclesiastical Court hath Jurisdiction and power to dispose of Pews and Seats in the Church But if there be an Isle built by a Gentleman or by a Nobleman and he hath used to Bury there and there hath his Ensigns of Honour as a Grave-stone Coat-Armor or the like which belongs not unto the Parson if he take them the Heir may well have an Action of Trespass Otherwise it is where the same is repaired at the Common charge of the Parish there they have the disposing of them Ellis and Hall's Case remembred a Kentish Case there the Seat was repaired by him and was belonging to his Capital Messuage by Prescription and so triable at the Common Law And so where the Case is Special that the party doth wholly and solely repair the same in such a case if a Suit be there concerning such a Seat a Prohibition well lieth but not otherwise But if a Nobleman comes to dwell in the Countrey he is now within the sole order and dispose of the Ordinary for his Pew and Seat in the Church and upon the former difference was Pym's case adjudged in the C. B. in this principal Case a Prohibition was denied by the whole Court CHAP. XIII Of Churchwardens Questmen and Sidemen 1. What such are in construction of Law how the choice of them is to be made and wherein the Office doth consist 2. What Actions at Law may lie for or against them 3. Whether Actions lie for the New Churchwardens in Trespas done in time of their Predecessors 4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preserve 5. Cases in Law touching the Election of Churchwardens 6. What Sidemen or Questmen are and their duty 7. Action at Law against Churchwardens touching Distress taken by them for money for relief of the Poor 8. A Churchwarden refusing to take the Oath of Enquiry on the 39 Articles Action thereon 9. What remedy in case the Archdeacon refuses to Swear the Church-wardens Elect. 10. The Injunctions of King Ed. 6. touching all Marriages Baptisms and Burials to be Registred in the presence of the Churchwardens 11. Whether the Release of one Churchwarden shall be a Bar to his Companion in an Ecclesiastical Suit commenced by them both 12. Prohibition where Churchwardens have pretended a Custome to chuse the Parish-Clerk 13. The like upon a Presentment by Churchwardens against one in matter more proper for a Leet than the Ecclesiastical Court to take cognizance of 14. The prevalency of Custome against a Canon in choice of a Churchwarden in reference to a Vicar and the Parishioners 15. If question be whether Lands next adjoyning unto a Church-yard shall be charged with the repairs of the Fences thereof and Custome pleaded for it in what Court cognizable 16. In Action of Account by Parishioners against Churchwardens by whom a Release of Câ—sts is pleaded but disallowed in the Ecclesiastical Court whether Prohibition lies in that case 17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the use of the Church 18. The Churchwardens disposal of Goods belonging to the Church without the assent of the Sidemen or Vestry void 19. Churchwardens not Ecclesiastical Officers but Temporal employed in Ecclesiastical Affairs Before whom are they to Account 20. Whether Churchwardens may have Action for Trespass done to the Church in their Predecessors time 21. Whether the Parishioners by force of a
Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Bishop of Durham by order of Parliament in Edward the First 's time for wasting the Woods belonging to that Bishoprick Also of the Archbishop of Dublin's being Fined three hundred Marks for disforresting a Forrest belonging to his Archbishoprick Likewise that by several Books of the Common Law a Bishop c. wasting the Lands Woods or Houses of his Church may be deposed or deprived by his Superiour And in case any Parson Vicar c. shall make any Conveyance of his Goods to defraud his Successor of his Remedy in case of Dilapidations in that case it is provided by the Stat. of 13 Eliz c. 2. that the Spiritual Court may in like manner proceed against the Grantee as otherwise it might have done against the deceased Parson's Executors or Administrators and all such Grants to defraud any person of their just actions were made void by a later Statute It is agreed That the cognizance of Dilapidations properly and naturally belongs to the Ecclesiastical Jurisdiction and no Prohibition to lie in the case or if such happen to be granted then the same to be superseded by a Consultation yet it seems Actions upon the Case grounded upon the custome of England have been brought in this case at Common Law and Dammages recovered It is also enacted by the Statute of 14 Eliz. That that Moneys recovered upon dammages for Dilapidations shall be expended in and upon the Houses c. dilapidated 2. Cardinal Othobon in his Canon De Domibus Ecclesiarum resiciendis hath constituted and ordained That all such Ecclesiastical persons as are Beneficed take special care that from time to time they sufficiently repair the Dwelling-houses and other Edifices belonging to their Benefices as oft as need shall so require unto which duty they are earnestly and frequently to be exhorted and admonish'd as well by their Diocesans as by the Archdeacons And if they shall for the space of two months next after such Monition neglect the same the Bishop of the Diocess may from thenceforth cause it to be effectually done at the Parson's charge out of the profits and fruits of his Church and Benefice taking only so much and no more as may suffice for such Repairs And the Chancels of Churches to be in like manner repair'd by those who are obliged thereto And as to Archbishops Bishops and other inferiour Prelates they are by the said Canon enjoyn'd to keep their Houses and Edifices in good and sufficient Repair sub divini Judicii attestatione Constit Othobon de dom Eccl. reâ—iâ— Sub divini Judicii attestatione h. e. damnationis aeternae in extremo Calâ—ulo glo in ver Sub divini Const Othobon de resident Archiepisc 3. By the Gloss on that Canon it is inferr'd That a Parson may be guilty of Dilapidations or of a Neglect in that kind two waies viz. either by not keeping the Edifices in good repair or by not repairing them being gone to decay That Canon chiefly refers to the Mansion-houses of all Benefices Ecclesiastical and that not only of all Parsonages and Rectories but also of all Bishopricks and of all Curates and Prebends and of all others having Ecclesiastical Livings but not specially by the words of this Canon unto their Farm-houses though they also are by the Canon Law provided for in case of Dilapidations And such as neglect the Reparations aforesaid may be accused and convicted thereof before the Diocesan who hath power to sequester the Fruits of such Benefice for the Reparations aforesaid Gloss in ver cessaverit in dict Can. such Fruits thereof being in construction of Law as it were tacitly hypothecated by a certain kind of Priviledge for such Indemnity and for that reason the Bishop in some cases may for that end sequester the same 4. And whereas in the abovesaid Canon it is said That Chancels shall be kept in repair by such as are thereunto obliged it is to be understood that that is spoken by way of allusion to the common Custome in England whereby the Body of the Church is usually repaired by the Parishioners and Chancels by the Rectors who notwithstanding ought to be at the care though not at the costs of the other also he being annually accountable to the Bishop for the same if the Bishop so please for which reason the Rector hath power to audit the Accounts of the costs and charges about the same as also what shall be given or bequeathed by way of Legacy for that end and purpose And where this custome prevails That the Parishioners shall repair the Body of the Church it is not to be understood that this is incumbent on them as a Real but as a Personal duty or burden yet every Parishioner proportionably to that quantity of Land which he holds within the Parish and number of Cattel he feeds on the same Gloss ibid. in ver ad hoc tenentur And in case one Parish be by legal Authority divided into Two in that case if such division were made by and with the consent of these Four viz. the Bishop the Patron the Parson and the Parishioners then the more Ancient Church shall not contribute to the Reparations of the New for that now they are two dictinct Parishes Gloss ibid. 5. Sir Ed. Coke in the third part of his Institutes having spoken of erecting of Houses and Building c. tells us what he finds in the Books of the Common Law and Records touching Dilapidations and decay of Buildings and having Margined as here in this Margent says That Dilapidation of Ecclesiastical Palaces Houses and Buildings is a good cause of Deprivation 6. By the Injunctions of King Ed. 6. An. 1547. to all his Clergy it is required That the Proprietors Parsons Vicars and Clarks having Churches Chappels or Mansions shall yearly bestow upon the same Mansions or Chancels of their Churches being in decay the fifth part of their Benefices till they be fully repaired and the same so repaired shall alwaies keep and maintain in good estate Consonant to which is the Thirteenth Article of Queen Elizabeths Injunctions given to all the Clergy An. 1559. 7. The Case was where the Parson made a Lease to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands usually Lett rendring the ancient Rent the Patron and Ordinary confirmed it the Lessee lett part of the term to the Defendant the Parson died the Successor entered and leased to the Defendant against whom the Lessee brought Debt upon the former Lease who pleaded the Statute of 13 Eliz. which made all Leases void where the Parson is not resident or absent for 80 daies It was Adjudged That the Lease was void by the death of the Incumbent for the Justices said The Statute doth provide against Dilapidations and for maintenance of Hospitality and therefore provided the Leases shall be void not only for Non-residence
but by death or resignation for otherwise Dilapidations should be in the time of the Successor and he cannot maintain Hospitality 8. The wasting of the Woods belonging to a Bishoprick is in the Law understood as a Dilapidation as was formerly hinted Note By Coke Chief Justice a Bishop is only to fell Timber for Building for Fuel and for his other necessary occasions and there is no Bishoprick but the same is on the Foundation of the King the Woods of the Bishoprick are called the Dower of the Church and these are alwaies carefully to be preserved and if he fell and destroy this upon a motion thereof made to us says the Lord Coke we will grant a Prohibition And to this purpose there was a great Cause which concerned the Bishop of Duresm who had divers Cole-Mines and would have cut down his Timber-Trees for the maintenance and upholding of his Works and upon motion in Parliament concerning this for the King Order was there made that the Judges should grant a Prohibition for the King and we will here says he revive this again for there a Prohibition was so granted And so upon the like motion made unto us in the like case we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause unless it be for necessary Reparations as if he sell the same unto a Stranger we will grant a Prohibition And to this purpose I have seen said he a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm as before for cutting of Timber-Trees for his Cole-Mines and there agreed that in such a case a Prohibition did lie and upon motion made a Prohibition was then granted and the Reason then given because that this Timber was the Dower of the Church and so it shall be also in the case of a Dean and Chapter in which cases upon this ground we will grant as he said Prohibitions and the whole Court agreed with him herein Also in Sakar's case against whom Judgment being given for Simony yet he being by assent of parties to continue in the Vicarage for a certain time this time being now past and he still continuing in possession and committing of great Waste by pulling down the Glass-windows and pulling up of Planks the Court granted a Prohibition and said That this is the Dower of the Church and we will here prohibit them if they fell and waste the Timber of the Church or if they pull down the houses And Prohibition to prevent Dilapidations and to stay the doing of any Waste was in that case awarded accordingly 9. In a Prohibition the Case was this A Vicar lops and cuts down Trees growing in the Church-yard the Churchwardens hinder him in the carriage of the same away and they being in Trial of this Suit The Churchwardens by their Counsel moved the Court for a Prohibition to the Vicar to stay him from felling any more Coke Chief Justice This is a good cause of Deprivation if he fell down Timber-Trees and Wood this is a Dilapidation and by the Resolution in Parliament a Prohibition by the Law shall be granted if a Bishop fells down Wood and Timber-Trees The whole Court agreed clearly in this to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber this being as it is called in Parliament the Endowment of the Church Coke we will also grant a Prohibition to restrain Bishops from felling the Wood and Timber-Trees of their Churches And so in this principal Case by the Rule of the Court a Prohibition was granted CHAP. XVI Of Patrons de jure Patronatus 1. What Patron properly signifies in the Law the Original thereof and how subject to corruption 2. In what case the Bishop may proceed de jure Patronatus and how the Process thereof is to be executed 3. How the Admittance ought to be in case the same Clerk be presented by two Patrons to the same Benefice 4. In what cases of Avoydance Notice thereof ought to be given to the Patron and what course in that case the Bishop is to take in case he knews not the true Patron 5. Several Appellations in Law importing Patron 6. How many waies a Church may become Litigious 7. Whether an Advowson may be extended 8. In what case the Patron may Present where the King took not his turn upon the first Lapse 9. A Patron may not take any benefit of the Glâ—be during a Vacancy 10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop prevent the incurring of the Lapse to the Ordinary 11. The King is Patron Paramount and Patron of all the Bishopricks in England The Charter of King John whereby Bishopricks from being Donative became Elective 1. PATRON by the Canon Law as also in the Feuds wherewith our Common Law doth herein accord doth signifie a person who hath of right in him the free Donation or Gift of a Benefice grounded originally upon the bounty and beneficence of such as Founded Erected or Endowed Churches with a considerable part of their Revenue De Jur. Patronat Decretal Such were called Patroni à patrocinando and properly considering the Primitive state of the Church but now according to the Mode of this degenerating Age as improperly as Mons à movendo for by the Merchandize of their Presentations they now seem as if they were rather the Hucksters than Patrons of the Church But from the beginning it was not so when for the encouragement of Lay-persons to works of so much Piety it was permitted them to present their Clerks where themselves or their Ancestors had expressed their Bounty in that kind whence they worthily acquir'd this Right of Jus Patronatus which the very Canon Law for that reason will not understand as a thing meerly Spiritual but rather as a Temporal annexed to what is Spiritual Quod à Supremis Pontificibus proditum est Laicos habere Jus Praesentandi Clericos Ordinariis hoc singulari favore sustinetur ut allectentur Laici invitentur inducantur ad constructionem Ecclesiarum Nec omni ex parte Jus Patronatus Spirituale censeri debet sed Temporale potius Spirituali annexum Gloss in c. piae mentis 16. q. 7. Coras ad Sacerdot mater par 1. cap. 2. Yet not Temporal in a Merchandable sense unless the Presentor and Presentee will run the hazard of perishing together for prevention whereof provision is made by that Solemn Oath enjoyn'd by the Fortieth Canon of the Ecclesiastical Constitutions whereof there was no need in former Ages less corrupt when instead of selling Presentations they purchased Foundations and instead of erecting Idol-Temples for Covetousness is Idolatry they Founded Built and Endowed Churches for the Worship of the True God Patroni in jure Pontificio dicuntur qui alicujus Ecclesiae extruendae c. Authores
fuerunt ideoque Praesentandi Offerendi Clericum jus habent c. Acquirunt autem hoc jus qui de Episcopi consensu vel fundant Ecclesiam vel aedificant vel ante Consecrationem dotant ut non valde sit Obscurum Jus Patronatus c. jus esse Praesentandi Clericum ad Ecclesiam Vacantem ex gratia ei Concessum qui Consentiente Episcopo vel Construxit vel dotavit Ecclesiam Corasius ibid. par 4. cap. 6. And it is gratefully provided by the Canon Law if a Patron or his Posterity being Patrons do fall to decay the Incumbent of the Fruits of the Church by Compulsary censure of the Ordinary according to that Law is to be enforced to make Contribution to them For which reason it is that the Law holds Vtilitas to be one of the three fruits or effects of a Patronage viz. Honos Onus Vtilitas 2. If two Patrons both pretending to the same Church present unto the Ordinary their Clerks respectively who insist on their Admission and the Bishop by admitting the one rejects the other he that is rejected at least his Patron may have his Action against the Bishop not in the Ecclesiastical but Temporal Court by a Quare Impedit or the like In such cases therefore the Bishop is wont to decree a Process commonly called Negotium de Jure Patronatus that is A day fixed and certain is appointed by the Bishop to sit in the Church that is void and a Monition decreed to be served on the Patrons presenting and the Clerks presented then and there to be present to see proceedings in the said business according to Law to which end a Citation issues to Twelve persons whereof six of the Clergy and six of the Laity all of the Neighbourhood of the said vacant Church to be then and there also present by way of an Enquest and on their Corporal Oaths to enquire on certain Articles then ministred to them touching the right of Presentation to the said Benefice These Articles consist chiefly of these Four heads viz. 1 Who last presented to the said Church when it was last void as also for the last two or three times when it was void 2 Whether the person or persons who last presented or these last two or three times or turns at the time and times of Vacancy of the said Church did present in his or their own proper right and title 3 Whether either of the Clerks now presented be known or suspected of any Notorious crime or of Heresie Simony Perjury Adultery or Drunkenness 4 Whether either of the Clerks now presented hath given or promised either by himself or any other for him and in his name or by or with his consent or knowledge any mony or other gratuity directly or indirectly for obtaining of his Presentation to the said Benefice to the Patron thereof or to any other who presented the said Clerk or caused him to be presented On which Articles if it be found by the Verdict of the said Jury that such or such of the said Patrons was in the possession of the Presentation at that time when the Church was last void then is his Clerk to be Admitted if there be no other legal impediment to hinder it that is nothing to affect him with contained in the third or fourth last precedent Articles 3. If two Patrons each pretending a right or title to the Presentation shall present one and the same person severally to the Bishop to be Admitted and Instituted to the Church the Bishop cannot Admit him generally but must in his Admittance of the Incumbent admit him Incumbent of the Presentation only of one of them And if they make such several Presentations claiming by several Titles the Bishop is to direct his Writ de Jure Patronatus for that in such case the Church is become Litigious yet the Bishop is not to award the said Writ but at the instance and request of the said parties And here Q. at whose charge the said Writ of Jure Patronatus shall in this case be suâ—d forth whether at the charge of the Bishop or of the parties for that the old Books as the Reporter gives us to understand do differ in this point Mich. 8 Jac. C. B. in Danby and Linley's Case Vid. 7 Ed. 4. Quare Imp. 100. 34 H. 6. 41. 21 H 6. 43. and 22 H. 6. 28. It is supposed and commonly practised it is sued at the instance and cost of one of the parties or of both if they joyn 35 H. 6. 18. b. 1. 9. a. 34 H. 6. 12. a. Hob. 317. 34 H. 6. 38. 5 H. 7. 22. a. 4. Suppose that a Parson be deprived by the Ordinary or reads not his Articles In which cases the Church is void yet notice must be given to the true Patron for that time or else the Lapse incurs not which is inconvenient for the Church and a prejudice to the Ordinary for how shall he in this case assure himself of a sufficient Notice For if he give notice to him that is not Patron for this very turn his Notice is vain and the true Patron perhaps knows not of the Deprivation or if he knows it needs not Present without notice given him In this Case Sir H. Hobard Chief Justice holds That his way is to award a Jure Patrâ—natus with solemn Premonitions Quorum Interest And then enquiry being made who is Patron to give him Notice and if he Presents not within six months then the Ordinary may Collate though that shall not bind the very Patron yet it shall excuse the Bishop from Disturbance upon Special matter shewed But if the other supposed Patron present and the six months incur Quaere if the true Patron be bound since there was no Notice given him And the Opinion of Hob. is that though without Notice the Patron is not bound by the Lapse yet that is nothing to save the Usurpation of another pretended Patron who is not subject to give Notice Also if a Suit be depending between Two parties touching the right of Presentation and it be not determined within Six months the Bishop may present by Lapse and he that hath right to Present shall recover his Dammages as by the Statute appears 5. The Patron or he that hath right to Present to a Benefice is sometimes termed Adowe alias Avowe Advocatus There is also Advowe Paramount or the highest Patron which is meant only of the King Advocatus est ad quem pertinet jus Advocationis alicujus Ecclesiae ut ad Ecclesiam Nomine proprio non alieno possit Praesentare Britton saith That Avowe is he to whom the right of Advowson of any Church appertains so that he may present thereunto in his own Name And is called Avowe for a difference from those that sometime present in another mans Name as a Guardian that presents in the name of his Ward and for a difference also from those who have the Lands to
difference between Vicarage and Parsonage their several Rights and Interests respectively 3. Whether a Vicarage Endowed may be Appropriated and how 4. The Chaplain of the Vicar of Hallifax his Case for his Salary 5. Vicars may Sue in the Ecclesiastical Courts for Pensions 6. How a Vicarage may be created 7. The Resolution of Court touching the Vicar's Tithes in reference to the Parson's Glebe 8. Cases in Law touching the Parsons and the Vicar's Tithes where Composition or Prescription is in the Case 9. Who is Patron of the Vicarage whether the Parson or the Patron 10. In what case the Vicar may Sue in the Ecclesiastical Court for an addition or increase of Maintenance 11. In what case a Vicarage shall determine and what shall be an union of Parsonage and Vicarage 12. Benefice how defined by the Canon Law with the Reasons of that definition 13. Benefices Ecclesiastical extend to Ecclesiastical Dignities by the Canon Law but not so within the Statute of 21 H. 8. 14. Of what an Ecclesiastical Benefices consists according to the Canonists 15. Cautionary Laws relating to Benefices by what marks or signs an Ecclesiastical Benefice is known at the Canon Law 16. The common distinction of Ecclesiastical Benefices at the Common Law 17. A Case in Law touching a Vicarage whether Dissolved or not 18. Vicarages of Two sorts how compared to a Commendam 1. VICAR is he who hath that Spiritual Living called a Vicarage being no other than a certain part or portion of a Parsonage allowed to the Minister for his Maintenance introduced at that time when Impropriations first began both which Livings as they are commonly called the Church so both such as serve in them are called the Patron 's Clerks The Vicar is usually appointed and allowed to serve the Cure by him who hath the Impropriation of the Parochial Tithes for at the Original of such Impropriations a certain portion of the Parsonage was allotted and set apart from the rest to maintain the Vicar who was to serve the Cure So that now the Priest of a Parochial Church where the Predial Tithes are Impropriated is called the Vicar h. e. vice Rectoris And it seems Anciently they did sometimes style themselves Perpetual Vicars because every Vicarage Corporation-like hath a constant Succession 2. A Parsonage and a Vicarage as appears in Britton and Wade's Case are two distinct Benefices and both have Curam animarum the Parson habitualiter the Vicar actualiter and although the Vicarage be Spiritual yet the Corporation is Temporal which the Pope could not dissolve And in the Case between Parry and Banks it was Resolved That after the Statute of 31 H. 8. which made Parsonages Lay-Fees the Ordinary could not dissolve a Vicarage when the Parsonage is in a Temporal hand for that were to destroy the Cure Vicarages being originally endowed out of Parsonages the Vicar was to have aid of the Parson if he were impleaded for any thing touching the Vicarage and the Parson was subject to every charge of the Vicarage And anciently the Vicar was not held as Tenant of the Freehold of the Glebe of the Vicarage but the Freehold thereof was in the Parson and the Vicar could not maintain an Assize in his own Name But now it seems the Freehold of the Glebe of the Vicarage is in the Vicar himself and not in the Parson for that the Possessions of the Vicar and Parson are severed and each of them shall have several Writs concerning their respective Rights and shall not joyn in one Writ and the Vicar shall have and maintain a Writ of Juris Vtrum against the Parson who is the Patron of the Globe of the Vicarage for the same Glebe This Vicarage being a certain portion of a Parsonage allowed to the Vicar for his Maintenance as aforesaid is in some places a sum of Money certain in others a part of the Tithes in kind commonly the smaller Tithes and in some places a part of the great Tithes also And Vicarage-Lands occupied by the Vicar do in some places pay no Tithe to the Parson 3. In Ward 's Case it was said by Mountague That a Vicarage endowed might be Appropriated but not to the Parson to which Haughton and Doderidge agreed 31 H. 6. Fitz. tit Indicavit is that such a Vicarage may be dissolved An Appropriation may be by the King sole where he is Patron but there is no Book that it might be by the Patron sole Grindon's Case in Plowden and 17 E. 3. 39. an Appropriation cannot be without the King's License In that case it was agreed That Tithe-Lamb and Wool was included within small Tithes which Tithe belongs to the Vicar 4. A Chaplain that was under the Vicar of Hallifax Libells against him in the Ecclesiastical Court for his Salary And he prescribes That the Vicar ought to pay the Chaplain four pounds a year and the Vicar prays a Prohibition 1 for that he alledges That the Chaplains were Eligible by himself and because that Chaplain was not Elected by him he is not Chaplain but he is in of his own wrong c. 2 That Prescription for Salary was Triable at the Common Law Yelverton The Salary is Spiritual as the Cure it self is Spiritual for which it is to be paid As the Case in Dyer 58. Pl 4. But a Prohibition was granted until it was determined to whom the Election appertained and that now depends by Prohibition in this Court 5. G. Vicar Sues in the Ecclesiastical Court the Dean and Chapter of Wells Parson of a Church for a Pension and they pray a Prohibition and it was denied For that Pension is a Spiritual thing for which the Vicar may sue in the Spiritual Court 6. The Parson Patron and Ordinary may Create a Vicarage and Endow it without the Assent of the King but the Ordinary cannot Create a Vicarage without the Patrons Assent 16 E. 3. Quare Impedit 145. And in or during the Vacancy the Patron of a Parsonage and the Ordinary may Create a Vicarage 8 R. 2. Annuity 53. per Belk And before the Statutes of Dissolutions a Parson Impropriate and the Ordinary might Create a Vicarage for the Parson was Parson and Patron Ibid. 7. It was Resolved per Curiam That if a Vicar be endowed out of a Parsonage of all the white Tithes growing and renewing within the Parish on all the Land of the Parish the Vicar shall not therefore have the Tithe of the Parson's Globe for that is excepted nor the Tithes of the Land which at the time of the Endowment of the Vicarage was parcel of the Glebe but since severed from the Glebe for that at the time of the Endowment that Land was exempted out of the Endowment 8. If there be a Composition made between the Parson and the Vicar That the Parson shall have all the Tithe of Corn and Hay and the Vicar the other Tithes and
afterwards the Parishioners sow certain Lands with Saffron or the like the Parson shall not have the Tithe of the Saffron but the Vicar By Coke so Adjudged It hath alsâ— been Resolved It a Vicar be Endowed of the Small Tithes by Prescription and afterwards the Land which had been Arable time out of mind is converted from Arable and there grow small Tithes the Vicar shall have them for his Endowment doth not go to the Land but Minutis Decimis in every place within the Parish And if a Vicar be endowed of the third part of all the Tithes of a Mannor he shall have Tithes as well of the Freehold as Copyhold for all makes the Mannor 9. The Parson and not the Patron of the Parsonage of Common right is Patron of the Vicarage for that it is derived out of the Parsonage Dubitatur 17 E. 3. 51. b. Contra 5 E. 2. Quare impedii 165. per Pass And if a Parson Appropriate create a Vicarage he shall be Patron thereof 17 E. 3. 51. he is both Parson and Patron So likewise if there be a Vicar and a Parson Appropriate the Ordinary and the Parson Appropriate may in time of vacation of the Vicarage re-unite the Vicarage to the Parsonage 10. If there be a Parsonage Appropriate in an Ecclesiastical person which never came to the King by the Statute of Monasteries and a Vicarage Endowed be there also and the Parson make a Lease of the Parsonage for Lives according to the Statute of 32 H. 8. The Vicar may in that case sue in the Ecclesiastical Court against the Parson and his Lessee who comes in by the Statute for Addition of Maintenance and the Ordinary may well compel them to increase his Maintenance for over all Appropriations such power of increasing the Vicar's Maintenance was reserved to the Ordinary and the Lessee comes in subject to that charge 11. If the Vicarage be diminished he shall have more of the Parsonage if what remains be not sufficient And if the Parsonage be impoverished and so decayed that the Parsonage by it self nor the Vicarage have sufficient to sustain them in that case the Vicarage shall determine and be restored to the Parsonage And to this the Doctors also do accord It hath been also held If a Parson Appropriate who is Patron of the Vicarage of the same Church by Agreement between him and the Ordinary present the Vicar to that Parsonage it is an union of the Parsonage and Vicarage but if a Lessee of a Parsonage present the Vicar to the Parsonage that shall not bind the Lessor And if there be a Vicarage and Parsonage and both void and one present his Clerk as Parson and he is so Inducted that shall unite the Parsonage and Vicarage again And in case that there be a Vicar Endowed who is Presentative and also a Parson Presentative it seems that the Parson hath not the Cure of Souls but the Vicar 12. Benefice Beneficium according to a general acceptation may comprehend all Ecclesiastical Livings be they Dignities or other as in the Statute of 13 R. 2. where they are divided into Elective and Donative But according to a more strict and proper acceptation Duarenus seems to give it an apt definition where he says it is Res Ecclesiastica quae Sacerdoti vel Clerico ob Sacrum Ministerium utenda in perpetuum concedatur Res because it is not the Ministry it self or the Office but rather the profit thence arising that is the Benefice Ecclesiastica because such profit is dedicated to God and his Church Sacerdoti c. because where a thing Ecclesiastical is granted to Lay-men it is not properly said to be a Benefice in this sense Ob Sacrum Ministerium because as Dedicated to God they are for the use of such as wait on his Altar Vtenda because they have rather the Usufâ—uit thereof than any Fee or Inheritance therein In perpetuum because they are annexed to the Church for ever Benefices with Cure of Souls seem most properly to be the Parsonages and Vicarages of Parochial Churches Sir H. Hobart Chief Justice in Colt and Glover's Case against the Bishop of Coventry and Lichfield says speaking of the Statute of 21 H. 8. cap. 25. That Bishopricks are not within the Law under the word Benefices So that if a Parson take a Bishoprick it avoids not the Benefice by force of that Law of Pluralities but by the Ancient Common Law as it is holden 11 H. 4. 60. 13. This word Beneficium Ecclesiasticum extendeth not only to Churches Parochial and the Benefices thereof but also to Dignities and other Ecclesiastical promotions as to Deanaries Archdeaconries Prebends c. Lindw de vit hon Cle. c. Exterior Sir Edw. Coke affirms that it appears in the Books of their Law That Deanaries Archdeaconries Prebends c. are Benefices with Cure of Souls but they are not comprehended under the Name of Benefices with Cure of Souls within the Statute of 21 H. 8. by reason of a special Proviso which they had been if no such Proviso had been added viz. Deans Archdeacons Chancellors Treasurers Chaunters Prebends or a Parson where there is a Vicar endowed 14. The Canonists do hold That an Ecclesiastical Benefice consists of the Sacred Function and of the Provinces thereunto belonging It is a distinct portion of Ecclesiastical Rights joyned to the Spiritual Function and until it be set apart separate and distinguished from Temporal Interests it is not properly an Ecclesiastical Benefice it is termed a portion in that it includes Fruits for a Benefice without Fruits cannot properly be so called 15. By the Jus Commune no man can at once and at the same time possess two Benefices with Cure of Souls as incompatible Tot. decis Rotae 445. tit de Praeb in novis Non datur Beneficium nisi propter Officium he that performs not the one ought to be deprived of the other C. fin de Rescript in 6. Can. Eos Cano. si quis Sacerdotum 81. distinct All pâ—cuniary Contracts all mercenary Trading and Merchandizing for Benefices is to be abhorred Ecclesiastical Benefices are of such a Spiritual Constitution that they are not capable of being bought or sold they fall not within the walk of human Commerce but ought to be conferr'd gratis And for Non-residence the Parson ought by the very Letter of the Law to be deprived of his Benefice and the Fruits thereof c. Vni de Cleric non residen in 6. Panormitan observes Six signs whereby an Ecclesiastical Benefice may be known As 1 That according to the Jus Commune it ought to be bestowed by one who hath a right and power in him so to do meaning the true Patron 2 That he who doth give or bestow it do reserve nothing thereof or therein for himself directly or indirectly 3 That it be given purely as a provision and maintenance for the Clerk 4 That it
hath ever something of Spiritualty annex'd to it 5 That in its nature it be perpetual 6 That all manner of Contracts and Bargains concerning it be utterly rejected Panorm Consil 47. Anchor de Regul prim de reg jur in 6. q. Decius in Rub. de Rescript 16. Whatever is enjoyed as a Benefice is had and obtained either by way of Title or Canonical Institution Lindw de cohabit Cle. Mulier c. ut Clericalis verb. Beneficiati Ecclesiastical Benefices being commonly distinguish'd into Presentatives and Donatives for a Parochial Church may be Donative and exempt from all Ordinaries Jurisdiction For if the King doth found a Church or Chappel he may exempt the same from the Ordinaries Jurisdiction in which case the Lord Chancellor and Lord Keeper shall Visit the same 20 E. 3. Excommeng 9. 21 E. 3. 60. Parsons Law cap. 28. Or if the King by his Letters Patents doth License a Common person to Found a Church or Chappel exempt from the Ordinaries Jurisdiction the same shall be Visited by the Founder and not by the Ordinary 6 H. 7. 4. per Keble 8 Ass 29. F. N. B. 42. acc And if such Clerk Donative be disturbed in his Incumbency the Patron or Founder shall have a Quare impedit Praesentare and declare upon the Special matter But if a Patron of a Church Donative doth once present unto the Ordinary and his Clerk be Admitted and Instituted it is now become Presentable and it shall never be Donative after and then the Ordinary shall Visit the same a Proxie shall be paid and Lapse shall incur to the Ordinary as in all other Benefices presentable but so long as it remains Donative it is without the Jurisdiction of the Ordinary For a Donative is a Benefice meerly given and collated by the Patron to a man without either Presentation to or Institution by the Ordinary or Induction by his Order All Bishopricks were anciently Donative by the King and it is said that there are certain Chauntries which may be given by Letters Patents The Original Donatives in England is supposed to be from what Mr. Guinn mentions in the Preface of his Readings viz. That as the King might anciently Found a Free Chappel and exempt it from the Diocesan's Jurisdiction So he might also by his Letters Patents License a Common person to Found such a Chappel and to Ordain that it shall be Donative and not Presentable and that the Chaplain shall be deprivable by the Founder and his Heirs and not by the Bishop Whether such Donatives are properly Benefices Ecclesiastical may well admit of an Enquiry for where Petr. Gregorius speaks of Chappels Founded by Lay-men not approved by the Diocesan nor by him as it were Spiritualiz'd he there says plainly that they are not accounted Benefices nor can they be conferr'd by the Bishop but the Founders and their Heirs may give such Chappels if they so please without the Bishop Petr. Gregor de Benefic cap. 11. nu 10. Guid. Pap. Decis 187. And Lindwood makes a very prolix question on the same reason whether St. Martins Le Grand Lond. be Ecclesiasticum Beneficium or not Arguing it pro and con but concludes in the Affirmative Lindw de Cohab. Cler. Mul. cap. ut Clericalis 17. The Prior of D. was seized of the Advowson of the Church of N. appropriated to his Priory and also of the Vicarage of N. endowed with small Tithes The Appropriation and Endowment were both in the time of King John and continued till the time of Hen. 6. when the Pope granted by his Bulls That the Prior should appoint one of his Monks to officiate the Cure who should be removed ad nutum Prioris The point was Whether the Vicarage was dissolved Resolved 1 That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope could not make any Ordinance against that Statute nor Dispence by his Bulls with the Law though they tend in Ordine ad Spiritualia 2 There were no words that amount to a Dissolution but the words only are That the Vicar should be ad nutum Prioris 3 The Parsonage and Vicarage are two distinct Benefices and both have Curam animarum the Parson habitualiter and the Vicar actualiter and although the Vicarage be Spiritual yet the Corporation is Temporal which the Pope cannot dissolve 4 That in this case the Vicarage was not Dissolved vid. 12 Jac. in the Exchequer Parry and Bank's Case accordingly there vouched 18. In the Canon Law there are two sorts of Vicarages viz. Vicaria Temporalis and Vicaria Perpetua The Vicaria Temporalis is compared to the Commenda Temporalis for that such Temporal Vicar non habet Titulum sed servit alieno nomine proprie Curam non habet otherwise it is de Vicaris perpetua quae est incompatibilis cum alio Beneficio habet Curam animarum talis Vicarius habet Titulum Canonicum And a Quare Impedit lies against such perpetual Vicarage F. N. B. 32. h. Regist 31. a. And such a Vicar shall have a Juris Vtrum of Lands annext or given to him in perpetuity by the Statute of 14 Ed. 3. cap. 17. vid. 40 Ed. 3. 28. b. where Finchden said That although it had been held that a Vicar should not have Action of his Possessions against any person yet that now the Law is changed in that point and good reason when he is endowed to him and his Successors in perpetuity CHAP. XIX Of Advowsons 1. Advowson what and why so called 2. Advowsons twofold 3. The great Antiquity of Advowsons the Original thereof 4. How it was in this Kingdom under the Saxons 5. The word Advowson applicable to other Ecclesiastical Foundations as well as Churches what the Famous Lindwood was 6. Advowsons are Temporal not Spiritual Inheritances 7. Reasons in Law proving it to be a Temporal Inheritance 8. The difference between Advowsons in Gross and Appendant 9. How Advowson Appendant may remain in the King as in Gross 10. By what words in a Grant an Advowson may pass or not 11. How an Advowson may be recontinued to the Rightful Patron where he was ousted by Vsurpation 12. A Case in Law touching three Avoydances of a Church granted to one man 13. A Question in Law whether upon such matter of Fact an Advowson remains Appendant or not 14. Advowsons are devisable by Will as well as grantable by Deed what Actions may run in prejudice to the Advowson or not 15. Whether an Advowson may be Assets and under what words it may pass or not 16. A Case in Law touching the Advowson of a Vicarage 17. In what case the Writ of Right of Advowson lies or not 18. In what case the Crown shall be put to that Writ or not in case of Vsurpation by a Common person 19. A point in Law whether the King or his Grantee shall have the Presentation where the King having a
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
may have a Writ of Right of Advowson but this Writ lieth not for him unless he claim to have the Advowson to him and his Heirs in Fee-simple which Advowson is valuable though the Presentment be not 18. The Queen seized of an Advowson being void the Ancestor of P. Presented and so gained it by Usurpation and then the Church being void he Presented again his Clerk dies and then the Queen grants the Advowson to Y. the Plaintiff who brings a Quare Impedit in the Queens Name supposing that this Usurpation did not put the Queen out of Possession It was argued That the Grant could not pass without special words because it is in the nature of a Chose in Action And Dyer Mead and Windham held That this Usurpation did gain possession out of the Queen and that she should be put to her Writ of Right of Advowson but the Opinion of Anderson Cheif Justice was clearly That the Queen was not out of Possession for he said That it was a Rule in our Books that of a thing which is of Inheritance the act of a Common person will not put the Queen out of possession But if she had only a Chattel as the next Advowson then perhaps it is otherwise But Mead and Windham very earnestly held the contrary relying on the Book of 18 E. 3. where Shard said That if the King had an Advowson in his own Right and a Stranger who had no Right happen to Present it puts the King out of Possession And the King shall be put to his Writ of Right as others shall The Defendant alledged Two Presentations in his Ancestor after the Title of the King and demanded Judgment if the King should have a Writ of Possession and the Plea was admitted to be good But after Pasch 25 Eliz. Judgment was given for the Queen for that she might very well maintain a Quare Impedit and the two Presentments did not put her out of possession 19. In a Quare Impedit by G. against the Bishop of L. and D. Incumbent The Case was That a Mannor with the Advowson Appendant was in the hands of the King and the Church became void and the King grants the Mannor with the Advowson If the Grantee shall have the Presentation or the King was the question All the Justices held clearly That the Avoidance would not pass because it was a Chattel vested And Periam said that in case of a Common person without question an Advowson appendant would not pass by such Grant for if the Father die it shall go to his Executor but if it be an Advowson in Gross in case of a Common person there is some doubt But in the Principal Case all the Judges held ut supra and said That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster But F. N. B. is contrary 33. N. 20. Of Advowsons there are three Original Writs whereof one is a Writ of Right the other two of Possession viz. Darrein Presentment and Quare Impedit And where an Advowson descendeth unto Parceners though one Present twice and usurpeth upon his Co-heir yet he that was negligent shall not be clearly barr'd but another time shall have his turn to Present when it falleth And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living or to Collate or Nominate to any Donative whatsoever the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge Also by the Statute of 13 E. 1. 5. it is directed what Action shall be maintained by him in the Reversion who is disturbed to Present after the Expiration of a particular Estate where there is also provided a Remedy for him in the Reversion or Remainder or others that have right where there is an Usurpation of an Advowson during any particular Estate And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes but by lawful means Likewise it is Statute-Law to hold That Advowsons shall not pass from the King but by Special words for when the King doth give or grant Land or a Mannor with the Appurtenances unless he make express mention in his Deed of Advowsons of Churches when they fall belonging to such Mannor or Land they are reserved to him notwithstanding the word Appurtenances albeit among Common persons it hath been otherwise observed nor is it lawful to purchase an Advowson during the dependancy of a Suit at Law concerning the same 21. If a Feme Covert be seized of an Advowson and the Church becomes void and the Wife dieth the Husband shall Present Where Parson and Vicar be Endowed in one Church and the Vicarage becomes void the question is To whom the Advowson of the Vicarge doth belong and who in that case shall be said to be the Patron of the Vicarage Whether the Patron of the Parsonage or the Parson It seems the Books at Common Law the Judges and the Court were divided in Opinion touching this point some of the Judges were of Opinion That the Advowson of the Vicarage appertains to the Parson Others that it belongs to the Patron Such as inclined that it is in the Patron gave for reason That the Ordinary cannot make a Vicar without the assent of the Patron 5 E. 2. Quare Impedit 165. puts the Case That although the Vicarage be Endowed with the assent of the Patron and Ordinary yet the Advowson of the Vicarage doth remain in the Parson because the same is parcel of the Advowson of the Parsonage And 16. E. 3. Grants 56. it was a question Whether by the Grant of the Advowson of the Church the Advowson of the Vicarage did pass and there it was said by Stone That it doth pass as Incident to the Parsonage And in regard the Vicar is as the Parsons Substitute and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson whose Concern it is to see that he be a fit and able person sufficient for the Cure it should thence seem rational that the Parson should be his Patron to Present such an one to the Vicarage as shall be sufficient for the Cure for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson than to the First Patron of the Parsonage Appropriate 22. An Advowson cannot it seems at the Common Law be called a Demesne for that it is not such a thing as a man hath a Manual occupation or possession of as he hath of Lands Tenements and Rents whereof he may say in his Pleading That he was seized thereof in his Demesn as of Fee which he cannot say that hath only the Advowson of a Church because it lies not as the other in Manual occupation And therefore in the case
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
ad Familiae suae sustentationem convertere possit juribus sive institutis quibuscunque in contrarium non obstantibus Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland according to the Statute of 28 H. 8. c. 16. After this viz. 20 May An. 38 Eliz. Patrick Fynne the Incumbent died whereby the said Vicarage being void and so continuing void by the space of Six months whereby the Bishop had power to Collate thereunto by Lapse the said Bishop by virtue of the said Faculty or Dispensation adeptus est occupavit retinuit the said Vicarage perpetuae Commendae titulo and took the Fruits thereof to his own use until the 13 Febr. An. 1609. on which day the Bishop died After whose death the said Cyprian Horsefall having purchased the next Avoidance of that Vicarage Presented the said Wale who was Admitted Instituted and Inducted And afterwards the King Presents one Winch who being disturbed by the said Horsefall and Wale the King brought a Quare Impedit Whether the said Bishop when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation were thereby made compleat Incumbent thereof so as the Church being full of him no Title by Lapse could devolve to the King during the life of the Bishop was the Principal point moved and debated in this Case And in the Argument of this point which was argued at the Bar first by the Counsel at Common Law and then by two Advocates well versed in the Canon Law and at the Bench by all the Justices Two things were chiefly considered by those who argued for the Kings Clerk 1 Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty 2 What effect or operation that Faculty or Dispensation shall have by the Law As to the First they held clearly for Law That a Bishop by the Ancient Ecclesiastical Law of England may not hold another Benefice with Cure in his own Diocess and if he hath such Benefice before his promotion to the Bishoprick that it becomes void when he is created a Bishop And this is the Ancient Law of England as is often said in the Bishop of St. David's Case 11 H. 4. 41 Ed. 3. 5. b. agrees therewith The Reason is for that the Bishop cannot visit himself and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean the Parsonage becomes void for that the Dignity and the Benefice are not compatible So no Ecclesiastical person by the Ancient Canons and Councils could have Two Benefices with Cure simul semel but the first would be void by taking asecond And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law as appears in Holland's Case Co. par 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. N. Br. 34. l. And the Text of the Canon Law which is the proper Fountain of this Learning proves it fully Decretal de Praeben Dignit c. de multa Where it is said De multa providentia fuit in Lateranensi Concilio prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum instituta c. Praesenti Decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale Beneficium habebat eo sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. And with this agrees the Text in Decret Caus 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest So that it is evident that the Bishop could not by any Law have or retain that Benefice within his Diocess without a Dispensation which is Relaxatio Juris and permits that to be done which the Law had before prohibited It is to be observed That Commenda est quaedam provisio and therefore Gomez in Reg. de Idiomate saith That Commendare est Providere quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus And by the Canon Law the Consent of the Patron is requisite where a Benefice is given in Commendam Lib. 6. Decretal c. Nemo where the Gloss saith Ad Commendam vacabitur Patronus si qui alii ex tali Commenda laeduntur Also in Constit Othob de Commendis it is said expresly That Consensus Patroni ad Commendam requiritur The Canon Law holds these Commendams as very prejudicial and that in divers respects and therefore says That Experientia docet occasione Commendarum cultum Divinum minui Curam animarum negligi hospitalitatem Consuetam debitam non servari ruinis aedificia supponi c. 6. Extra cap Pastoris And whereas it is said of a Bishop That he is to be unius uxoris vir the Canonists expound it That he shall have but one Bishoprick or only one Cure for they say that per Commondam Bigamia contrahitur in Ecclesia Therefore it was well Resolved by that good and pious Bishop who when another Benefice was offered him to hold in Commendam said Absit ut cum Sponsa habeam Concubinam But for the clearer understanding of the nature and difference of these Commendams it is further to be considered That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius and therefore Decret caus 21. q. 1. Qui plures the Gloss there saith Commendare nihil aliud est quam deponere This Commenda or Commendatio Ecclesiae is divers according to the nature of the Church and the Limitation or Continuance of the Commenda for a Commenda may be of a Church either Curatae or non Curatae and it may be either Temporanea viz. for a time certain as for Six months or Perpetua viz. during the life of the Commendatary A Church with Cure may not be given in Commendam unless upon evident necessity or the benefit of the Church viz. to supply the Cure till provision be made of a sufficient Incumbent And therefore by the Council of Lions it was provided That a Parochial Church should not be given in Commendam nisi ex evidenti necessitate vel utilitate Ecclesiae quod talis Commenda ultra semestris temporis spatium non duraret quod secus factum fuerit sit irritum ipso jure c. 6. Decretal c. Nemo But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary vel ad mensam In that sense the Canonists say That Commenda is quasi comedenda quia Ecclesiae quae
3 ly if he Present not within the time by Law limited then the King shall Present for that he is Patron paramount of all the Benefices within his Realms as also because the King and his Progenitors Kings of England have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts whence lies no Appeal to any Foreign pretended Power The Rosell Summist indeed makes more Gradations in this matter as from the Patron to the Chapter from the Chapter to the Bishop from the Bishop to the Metropolitan from the Metropolitan to the Patriarch and if none such then to the Pope Sed hoc nihil ad nos part of whose happiness is an Index Expurgatorius of the last recited Premisses And although the Law is That the Ordinary shall Present in case the Patron doth not within Six months yet the Law withal is That if the Patron Present before the Ordinary put in his Clerk the Patron of right shall enjoy his Presentation And if the Ordinary surcess his time limited he loses his power as to that Presentation specially if it be devolv'd to the King And when the Presentation is in the Metropolitan he shall put in the Clerk himself and not the Ordinary and so there is no default in the Ordinary though he Present not the Clerk of the Patron if his time be past in which case there is no remedy for the Patron against the Ordinary This matter of Lapse is of very ancient practice for Mich. 3. E. 1. B. Rot. 105. Staff the Bishop of Coventry and Lichfield pleaded a Collation by Lapse Authoritate Concilii against the Prior of Landa to the Church of Patingham And 6 E. 1. Rot. Paten membra 25. in a Quare non admisit by the Abbot of St. Mary Eborum against the Bishop of Norwich the Bishop made a Title by Lapse viz. That he Collated Authoritate Concilii post Lapsum semestre c. And there afterwards in the Judgment it is said Quia tempus semestre Authoritate Concilii non incipit versus Patronum nisi à tempore scientiae mortis c. Q. what Council is here meant or intended For P. 9 E. 1. B. Rot. 51. it appears that Lapse was given per Concilium Lugdunense post tempus semestre The like also in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby's Case 62 yet in Bracton the Lapsus temporis is de Constitutione Lateranensi And yet Britton fo 225. speaks of the Tempus Semestre or the Six months according to the Council of Lions But Mr. Selden in his Book of Tithes 390. says That the Manuscripts of Breton have Lateran for Lions and in fol. 388. holds That this Lapse was received in the Laws of this Realm out of the General Council of Lateran held in the year 25 H. 2. as the Learned Serjeant Roll observes in his Abridgment on this word of Lapse where he also cites Hovenden fo 326. asserting That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in these words or to this effect viz Cum vero Praebendas Ecclesias seu quaelibet Officia in aliqua Ecclesia vacare contigerit vel si etiam mod◠vacant non diu maneant in suspenso sed infra Sex menses personis quae digne administrare valeant conferantur si autem Episcopus ubi ad eum spectaverit conferre distulit per Capitulum Ordinetur And before the said Council the Patron was not limited to any time but might Present at his pleasure without any Lapse Touching other Presidents of great Antiquity relating to this Subject of Lapse the Reader is here referred to that Learned Serjeant Rolle in the forecited place of his Abridgment And although according to the Gradations aforesaid the Lapse devolves from the Patron to the Bishop from the Bishop to the Archbishop from the Archbishop to the King yet if after Lapse incurr to the Metropolitan and before Collation by him made the Patron Present he may Present to the Ordinary of the Diocess without Presenting to the Metropolitan Contra H. 41 El. B. R. per Popbam for thereby he seems to redeem his neglect But yet if Lapse devolve to the King and then the Inferiour Ordinary Collate by the Lapse and his Clerk be Instituted and Inducted it seems this doth not make a Plenarty against the King to put him to his Quare Impedit but he may notwithstanding Present and oust the Clerk of the Ordinary for when Lapse incurrs to the King it cannot be taken away by the Ordinary And then when the Ordinary Collates without good Title it makes not any Plenarty against him who hath the right as the King hath to Present for a Lapse incurring to the King is not like that which incurrs to the Metropolitan But if a Patron Present and his Clerk be Instituted and remain Eighteen months without Induction in that case there doth not any Lapse incurr to the King for the King hath not any Lapse but where the Ordinary might have had it before But if a Bishop dies whereby the Temporalties are in the Kings hands if during that time the Six months pass whereby a Lapse happens the King shall have it and not the Guardian of the Spiritualties Nor doth an Admittance of a Resignation by Fraud take away the Kings Title for in Comber's Case against the Bishop of Cicester where the Issue in a Quare Impedit was If S. R. by covin between him and C and R. did Resign into the hands of the said Bishop if the King hath Title of Lapse and a Resignation be made by fraud and one Admitted this shall not take away the Kings Title for if the Kings Title appear upon Record then shall go out a Writ for the King but otherwise it is upon matter of Evidence the King doth lose his Presentation as well by resignation as by death where he hath Title to Present by Lapse and doth not except the Resignation be by Fraud And in the Case of the Queen and the Archbishop of York and Bucks it was Resolved by the Justices That a Collation although double or treble cannot be an Usurpation against the King to put him out of an Advowson 2. The Canon Law allows Two months more to an Ecclesiastical than to a Lay-Patron ere the Lapse shall be incurr'd the former having by that Law Six months to Present the latter but Four Summ. Angel tit Jus Patronat § 16. So the Law of Scotland Pars Couns par 1. c. 2. We need not enquire into the Reason of that difference or disproportion let it suffice the Laity That it was the Canonists pleasure to have it so for reasons best known to their own interest the Common Law impartially levels them both to one and the same equal standard
than the Bishop himself or other Ordinary which also must be given to the Patron personally if he live in the same County and if in another County then Publication thereof in the Parish-Church and affixed on the Church-Door will serve turn if such Notice doth express in certain as it ought to do the cause of the Deprivation c. As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion the Ordinary is to give the Patron Notice thereof which Notice ought to be certain and particular Before Lapse can incurr against a Patron Notice of his Clerks being refused by the Ordinary for Insufficiency must be given to the person of the Patron if he may be found and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented D. 16 El. 327. 7. b. Adjudged 5. It is said That a Lapse is not an Interest naturally as is the Patronage but a meer Trust in Law And if the Six months be incurred yet the Patrons Clerk shall be received if he be Presented before the Church be Filled by the Lapse Observe 7 Eliz Dyer 241. for it seems by that case that the Patron should Present against the Kings Lapse for he hath dammage but for half a year And Hob. Chief Justice says That a Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and lastly in the King the end of which Trust is to provide the Church of a Rector in default of the Patron and yet as for him and to his behoof And therefore as he cannot transfer his Trust to another so cannot he divert the thing wherewith he is entrusted to any other purpose Nor can a Lapse be granted over as a Grant of the next Lapse of such a Church neither before it fall nor after If the Lapse incurr and then the Ordinary die the King shall Present and not the Executors of the Ordinary For it is rather an Administration than an Interest and the King cannot have a Lapse but where the Ordinary might have had it before If an Infant-Patron Present not within Six months the Lapse incurrs The Law is the same as against a Feme-Covert that hath right to Present 33 E. 3. Qua. Impedit 46. 6. In the first Paragraph of this Chapter it is said That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae that is of the last Incumbent And so Adjuged upon a Writ in the time of E. 2. and said to be per Legem Consuetudinem Regni hactenus usitatas As if the Incumbent die beyond Sea the Six months are not computed from the time of his death but from the time of the Patrons knowledge thereof and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich as aforesaid For the Six months are not reckoned from the death of the Last Incumbent but from the time the Patron might according to a reasonable Computation having regard to the distance of the place where he was at the time of the Incumbents death if he were within the Realm at that time have come to the knowledge thereof for he ought afterwards to take notice thereof at his peril and not before for that he was in some other County than that wherein the Church is and wherein the Incumbent died And if the Ordinary refuse a Clerk for that he is Criminous in that case the Patron shall not have Six months to Present after Notice thereof given him but of the Avoidance The Law is the same in case of Refusal by reason of Illiterature But if the Church be void by Resignation or Deprivation the Six months shall be computed from the time of Notice thereof given to the Patron and not from the time of the Avoidance Yet if the Ordinary refuse a Clerk because he is Criminous he is to give notice thereof to the Patron otherwise the Lapse doth not incurr So likewise if he be refused for Common Usury Simony Adultery or other Notorious Crime Notice thereof ought to be given to the Patron otherwise the Lapse doth not incurr A Lay Patron ought to have Notice ere the Lapse shall incurr in case his Clerk be refused for Illiterature otherwise as to a Spiritual Patron because the Law presumes he might well know of his insufficiency before he presented him And if the Bishop who took a Resignation dies the Lapse doth not incurr to his Successor without Notice to the Patron 7. In a Quare Impedit the Defendant pleaded That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders and he would not shew them and also demanded of him his Letters Missive or Testimonial testifying his ability and because he had not his Letters of Orders nor Letters Missive nor made any proof of them to the Bishop he desired leave of the Bishop to bring them who gave him a week and he went away and came not again and the Six months passed and the Bishop Collated by Lapse It was Adjudged in this Case That these were no Causes to stay the Admittance of the Clerk for the Clerk is not bound understand it only at Common Law to shew his Letters of Orders and Letters Missive to the Bishop but the Bishop must try him upon Examination 8. A Parson of the Church of S. of the value of Ten pound took a Second Benefice without a Dispensation and was Instituted and Inducted and continued so for twelve years The Patron presented J. S. who was Instituted and Inducted and so continued divers years and died The Queen presented the Defendant C. ratione Lapsus in the time of A. who was Instituted and Deducted B. the Patron brought a Quare Impedit against the Ordinary and C. It was held by the Justices That the Writ did well lie and that Tempus occurrit Reginae in this Case and that last Clerk should be removed And it was held by the Justices That upon a Recovery in a Quare Impedit any Incumbent that comes in pendente Lite should be removed 9. In the Case between Cumber and the Bishop of Chichester it was Resolved 1 If Title of Lapse accrues to the King and the Patron Presents yet the King may Present at any time as long as the Presentee is Parson but if he dies or Resigns before the King Presents he hath lost his Presentment 2. If the King hath Title by Lapse because a Parson hath taken a Second Benefice if the Parson dies or Resigns his First Benefice and the Patron Presents whose Presentee Resigns upon Covin and dies the King hath lost that Presentment CHAP. XXIII Of Collation Presentation and Nomination 1. What Collation is and how it differs from Presentation 2. Collation
gains not the Patronage from the Crown 3. The Ordinary's Collation by Lapse is only in the Patron 's right 4. What Presentation is and how in ease of Co-heirs or Joynt-tenants or Tenants in Common 5. Whether the Grantee of the next Presentation not Presenting at the First Avoidance shall lose the benefit of his Grant 6. The Right of Presentation is not an Ecclesiastical but Temporal Inheritance and cognizable at the Common Law 7. The power of the Ordinary in case of Coparconers Joyntenants or Tenants in Common as to Presentation 8. In what Case the Bishop hath Election whose Clerk he will Admit 9. Whether a Presentation is revokable before Institution 10. Whether the Son may succeed his Father in the Church and who may vary from or repeal his Presentation 11. What Nomination is and the Qualifications thereof 12. In what Case the Presentation is the Nomination or both as one in Law 13. In what case the Nominator shall have a Quare Impedit as well as he that hath Right of Presentation And there may be a Corrupt Nomination as well as a Corrupt Presentation 14. Whether the Collatee be Incumbent if the Bishop Collate him within the Six months And in what Case the Kings Presentation within the Six months may be an Vsurpation or not 15. Where the Ordinary Collates the Patron is to take notice of it at his peril 16. Who shall Present in case the Ordinary to whom a Lapse is devolved be within the Six months translated to another Bishoprick 17. A Resignation to a Proctor without the Bishops Acceptance makes not the Church void 18. A Parochial Church may be Donative exempt from the Ordinary's Jurisdiction and is Resignable to and Visitable by the Patron not the Ordinary 19. Where Two are to Present by Turns what Presentation shall serve for a Turn or not 20. By the Canons the Son may not succeed the Father in the same Church 21. To what a Presentation may be made 22. The Kings right of Presentation as Supream Patron 23. In what case the Kings Prerogative to Present doth not take place 24. In what Cases it doth 25. To whom the Patronage of an Archbishoprick belongs 26. Whether Alien Ministers are Presentable to a Church in England 27. In what Cases the Patron may Present de novo 28. Difference between the King and a Common person in point of Presentation 29. A Collation makes no Plenarty where it is tortious 30. Presentation may be per parol as well as by Writing 31. What amounts to a Revocation of the King's Presentation 32. Causes of Refusal of the Clerk Presented 33. Certain Law Cases pertinent to this Subject 34. Whether Institution granted after a Caveat entered be void 35. What shall be held a Serving of a Turn and good Plenarty and Incumbency against a Patron in Severalty 36. A Clerk refused by reason of his not being able to speak the Welsh Language 37. What is the best Legal Policy upon every Presentation by Vsurpation 38. One of Two Grantees of an Advowson to whom the other hath released may Present alone and have a Qua. Imp. in his own Name 39. A Clerk refused for Insufficiency by the Bishop may not afterwards be Accepted 1. COllation in its proper signification is the bestowing of a Benefice by a Bishop that hath it in his own proper right gift or patronage distinguish'd from Institution only in this That Institution into a Benefice is at the instance motion or Presentation of the Patron or some other having pro tempore the Patrons Right performed by the Bishop Extra de Instit de Concess Praeben c. But Collation is not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof or when the Bishop or Ordinary hath right to Present for Lapse of the Patron and yet sometimes Collation is and hath been used for Presentation And so Presentation Nomination and Collation are commonly taken for one and the same thing in substance though at times distinguished And whereas it hath been a Question If one hath the Nomination and another the Presentation which of them shall be said to be the very Patron it hath alwaies been taken to be the better opinion that he who hath the Nomination is Patron of the Church And where an Abbot had the Presentation and another the Nomination and the Abbey surrendred to the King he that hath the Nomination shall now have all for the King shall not Present for him that being a thing undecent for the King But as to Collation and Presentation they were in substance one and the same thing as aforesaid But to speak properly Collation is where the Bishop himself doth freely give a Benefice which is of his own Gift by right of Patronage or Lapse This word Collation seems also to be frequently used when the King Presents and hence it is that there is a Writ called Collatione facta uni post mortem alterius c. directed to the Justices of the Common Pleas Commanding them to direct their Writ to a Bishop for the Admitting one Clerk in the place of another Presented by the King which Clerk during the Suit between the King and the Bishops Clerk is departed this life For Judgment once given for the Kings Clerk and he dying before his Admission the King may bestow his Presentation on another This Collation Presentation and Nomination are in effect Synonima being distinguished only in respect rather of Persons than of Things 2. Yet there may be a great difference betwixt Presentation and Collation which gains not the Patronage from the King as appears in the Case of the Queen against the Bishop of York where the Queen brought a Quare Impedit against the said Bishop and one Monk and counted upon a Presentment made by King Hen. 8. in the right of his Dutchy of Lancaster and so conveyed the same to the Queen by Descent The Bishop pleaded That he and his Predecessors have Collated to the said Church c. and Monk pleaded the same Plea upon which there was a Demurrer And it was moved by Beaumont Serjeant That the Plea is not good for a Collation cannot gain any Patronage and cannot be an Usurpation against a Common person much less against the Queen to whom no Lapses shall be ascribâ—d and although the Queen is seized of this Advowson in the right of her Dutchy yet when the Church becomes void the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist 31. Quando Rex praesentat non in jure Coronae tunc incurrit ei Tempus Hamm. Serj. By these Collations the Queen shall be put out of possession and put to her Writ of Right of Advowson but the same ought to be intended not where the Bishop Collates as Ordinary but where he Collates
as Patron claiming the Patronage to himself for such a Collation doth amount to a Presentation and here are two or three Collations pleaded which should put the Queen out of possesion although she shall not be bound by the First during the life of the first Incumbent Vid. Br. Quare Impedit 31. upon the abridging of the Case of 47 E. 3. 4. That two Presentments the one after the other shall put the King out of possession and put him to his Writ of Right of Advowson which Anderson denied And it was holden by the whole Court here is not any Presentation and then no possession gained by the Collations and although the Bishop doth Collate as Patron and not as Ordinary yet it is but a Collation And there is a great difference betwixt Collation and Presentation for Collation is a giving of the Church to the Parson but Presentation is a giving or offering of the Parson to the Church and that makes a Plenarty but not a Collation 3. The Collation of the Ordinary for Lapse is in Right of the Patron and will serve him for a Possession in a Darrein Presentment as appears by Colt and Glover's Case against the Bishop of Coventry and Lichfield where it is said That the Ordinary or he that presents by Lapse is a kind of Attorney made by Law to do that for the Patron which it is supposed he would do himself if there were not some lett and thefore the Collation by Lapse is in right of the Patron and for his turn 24 E. 3. 26. And he shall lay it as his possession for an Assize of Darrein Presentment 5 H. 7. 43. It seems also by Gawdy's Case against the Archbishop of Canterbury and others That although a Bishop Collate wrongfully yet this makes such a Plenarty as shall barr the Lapse of the Metropolitan and the King And this Collation by Lapse is an act and office of Trust reposed by Law in the Ordinary Metropolitan and King the Title of Lapse being rather an Administration than an Interest as in Colt's Case aforesaid which Title of Collating by Lapse may be prevented by bringing a Quare Impedit against the Bishop Also where and in what Cases the bringing of that Writ against the Bishop shall or shall not prevent such Collation appears in the Case of Brickhead against the Archbishop of York as Reported by Sir Hen. Hobart Chief Justice 4. Presentation is the Nomination of a Clerk to the Ordinary to be Admitted and Instituted by him to a Benefice void and the same being in Writing is nothing but a Letter Missive to the Bishop or Ordinary to exhibite to him a Clerk to have the Benefice voided the Formal force hereof resteth in these words viz. Praesento vobis Clericum meum Thus Presentation properly so called is the act of a Patron offering his Clerk to the Bishop to be Instituted in a Benefice of his Gift It is where a man hath a Right to give any Benefice Spiritual and presents the person to the Bishop to whom he gives it and makes an Instrument in writing to the Bishop in his favour and in case there be divers Coheirs and they not according in the Presentation that which is made by the eldest of the Coheirs shall be first Admitted but if it be by Joyntenants or Tenants in Common and they accord not within Six months the Bishop shall present by Lapse By the Statute of 13 Eliz. cap. 12. a Presentation of an Infant to a Benefice is void And although a Presentation being but the Commendation of a fit person by the Patron to the Bishop or Ordinary to be Admitted and Instituted into a Benefice may be done either by word alone or by a Letter or other writing yet the Grant of a next Avoidance is not good without Deed But a Presentation being no other than a Commendation of a Clerk to the Ordinary as aforesaid and only a thing concerning an Advowson without passing any interest of the Inheritance of the Advowson may be done by word only upon which ground it was Resolved by the whole Court That the Kings Presentation unto an Advowson Appendant to a Mannor parcel of his Dutchy under the Great Seal of England without the Seal of the Dutchy was well made and good Yea and for the same Reason for that a Presentation is but a Commendation and toucheth not the Inheritance was the Kings Presentation to the Deanary of Norwich held good albeit in the said Presentation he mistook and mis-recited the Name of the Foundation of the Deanary 5. A. seized of an Advowson in Fee Grants Praesentationem to B quandocunque quomodocunque Ecclesia vacare contigerit pro unica vice tantum in the Grant there was further this Clause viz. Insuper voluit concessit That the Grant should remain in force quousque Clericus habilis idoneus shall by his Presentation be Admitted Instituted and Inducted Afterwards A. grants away the Advowson in Fee unto S. The Church becomes void S. Presents The Church becomes void again S. Presents G. upon a Disturbance of M. the Presentee of B. the First Grantee a Quare Impedit is brought The Question was Whether B. the First Grantee not Presenting upon the First Avoidance had lost the benefit of his Grant In this Case it was Adjudged by the whole Court That although A. the Grantor grants Donationem Praesentaâ—ionem quandocunque Ecclesia vacare contigerit pro unica vice tantum yet B. ought to have taken the first Presentation that happened and hath not Election to take any turn other than the First when the Church first became void and by his neglect in not Presenting then had lost the benefit of his Grant and the subsequent words in the Grant are but only an Explanation of the words precedent and relate to the next Avoidance 6. The Right of Presentation is a Temporal thing and a Temporal Inheritance and therefore belongeth to the Kings Temporal Laws to determine as also to make Laws who shall Present after Six months as well as before so as the Title of Examination of Ability or Nonability be not thereby taken from the Ordinary The Law is the same touching Avoidances for it shall be judged by the Kings Temporal Laws when and whether the Church may be said to be void or not the cognizance whereof doth not belong to the Kings Ecclesiastical Laws and therefore where a Parson is made a Bishop or accepts another Benefice without License or Resigneth or be Deprived In these cases the Common Law would hold the Church void albeit there were any Ecclesiastical Law to the contrary And it is sufficient for the Ordinary's discharge if the Presentee be able by whomsoever he be Presented which Authority is acknowledged on all sides to have been ever inherent in the Ecclesiastical Jurisdiction But as to the Right of Presentation it self to determine who ought to Present and who
not and at what time and when the Church shall be Judged to become void and when not all these appertain to the Kings Temporal Laws And in case it happen that the King Present not where of Right he may in such case the Ordinary may pro tempore depute a fit person to serve the Cure as in like case he may where there is a default or neglect in other Patrons to Present and do not 7. If the Patrons be Joynt-tenants or Tenants in Common of the Patronage and they vary or differ in their Presentations the Ordinary is not in that Case bound to Admir either of their Clerks nor him that is Presented by the Major part And if the Six months expire ere they agree the Ordinary may Present by the Lapse but within the Six months he may not for if so and the Patrons accord they may bring a Quare Impedit against him as a Disturber and remove his Clerk But in case the Patrons have the Patronage by Descent as Coparceners then is the Ordinary obliged to Admit the Clerk of the Eldest Sister who hath the precedency by Law in the Presentation if she so please after which and at the next Avoidance the next Sister shall Present and so in order by turn one Sister after another till all the Sisters or their Heirs have Presented and then the Eldest Sister shall Present again and this is called a Presenting by Turn which holdeth alwaies between Coparceners of an Advowson unless they agree to Present together or in some other manner by way of Composition which if so then the Agreement ought to hold good Yet here note That if after the death of the Common Ancestor the Church happening to be void the eldest Sister together with another of the Sisters Presents and the other Sisters severally and each in her own Name or joyntly and altogether In this case the Ordinary is not obliged to receive any of their Clerks but may suffer the Church to run into the Lapse for there is no obligation on the Ordinary to admit the Clerk of the Eldest Sister but where she Presents in her own Name only And in such case of variance or difference among the Patrons touching the Presentation the Church is not properly said Litigious obliging the Ordinary at his peril to direct a Writ to enquire de jure Patronatus which Writ lieth only where Two or more Present under pretence of several Titles but in this case all the Patrons present under one and the same Title for which reason the Ordinary may if he please suffer it to pass into the Lapse 8. Suppose a Patron presents to a Church void and before the Admission of the Clerk the Patron dies after his Executors before such Admission Present another Clerk Q. Whether the Archdeacon ought to receive the Clerk of the Testator or of the Executors The Opinion of the whole Court was That the Bishop should have Election therein And in case an Agreement be made by way of Composition between divers claiming one Advowson and Enrolled or by Fine that one shall successively after another Present in such an order certain and after one hath Presented he to whom at the next Avoidance the Second Presentation doth belong is disturbed by any that was party to the said Fine or by some other in his stead In such case it is provided That such so disturbed shall not be put to the Quare Impedit but their resort to the Roll or Fine shall be sufficient where if the Concord or Agreement be found the Sheriff shall be commanded That he give knowledge to the Disturber that he shew by such a time certain as fifteen days or three weeks if he can alledge any thing wherefore the party that is disturbed ought not to Present and if he appear not or appearing alledge nothing sufficient in Bar he shall recover his Presentation with Dammages 9. In the Case of Evans and Ascough it was the Opinion of Doderidge That a Bishop hath no more in a Church by Election than a Parson hath by Presentation And that if a man Present to a Church yet any time before Institution he may revoke it and Present another and if in that case the Bishop will Institute the First a Quare Impedit will lie against him But if the Patron present one and he be Admitted by the Ordinary he cannot in that case vary from his Presentation as was also held by Doderidge in Stoke's Case against Styles where he further said That it was out of all question at the Common Law that before Admission by the Ordinary the Lay-Patron may revoke his Presentation because a Presentation is no other than a Commendation which may be by word only And if the Case be that one hath the Nomination another the Presentation the Presentation and Nomination are all one It was then said by Whitlock That in the Canon Law it is allowed to a Lay-man to vary but not to a Spiritual man but at the Common Law it is all one Doderidge and Jones seemed to give the Reason thereof when they said That it may be intended that a Lay-man cannot at first so well judge or is able to discern of the sufficiency of the party Presented but a Spiritual-man may Quaere If after Admission of the Patrons Presentee he doth afterwards again Present another to the Ordinary and the Ordinary Admit Institute and Induct the last Presentee what Remedy for the first So if a Spiritual Person change his Presentation by the consent of the Ordinary what remedy for the First after Induction of the Second 10. To the same purpose with the premisses is that which is Reported in Stoke's Case against Sykes the Case is this viz. A Lay-Patron having the next Avoidance of a Church after the death of one Stokes Father of the Plaintiff then Incumbent of the said Church after the Fathers death presented Stokes's Son whom the Bishop refused for that by the Canon Law Filius Patri non potest in Ecclesia succedere Whereupon the Patron presented Sykes And now Stokes obtains a Dispensation Non obstante the Canon Notwithstanding the Ordinary doth Institute Sykes and causeth him to be Inducted Whereupon Stokes doth Sue Sykes and the Ordinary in the Delegates and now Banks prays a Prohibition and by all the Justices it was granted And Jones said That he had known it to be Thrice so granted in the like Case viz. in the time of Justice Gawdy as also in the time of Justice Coke in the Common Pleas where both Parsons claimed by one Patron But Doderidge there held That the Canon before-mentioned doth not hold in this Church and so said Doderidge was the Opinion of a Learned Civilian So by the Canon Law a man cannot have that Woman in Marriage whom he had in Avowry before yet that Canon doth not hold in our Church Doderidge said that the Civilians hold That a Lay-Patron cannot revoke
his Presentation but he may cumulando variare and so the Ordinary hath Election to Institute which of them he will but that a Spiritual Patron cannot vary at all But he said that at the Common Law it is out of question That a Patron before Institution may revoke his Presentation And if the Patron present one and the Ordinary admit him but will not give him Institution Duplex Quaerela lies against the Ordinary to enforce him to do his duty But if both Parsons claim by one Patron and the one sues a Duplex Quaerela a Prohibition lies not before Institution But Jones denied it and said That it had been Resolved to the contrary Doderidge said That in that case the Induction was pendente Lite And in Calvert's Case against Kitchin it was said that they King may revoke his Presentation and by the same reason may Present another before his Presentee is Instituted for proof whereof it was said That a Common person may recall his Presentation before the Institution c. for which was vouched the Book of 31 E. 1. tit Quare Impedit 185. the Abbot of Leicesters Case although that Dyer citing it 12 Eliz. fo 292. conceives the Book contrary but it seems to be in reason that the Law is clear That a Lay-Patron may change although that a Spiritual Patron cannot and the reason is as aforesaid because a Lay-person did not know his Sufficiency perhaps at the first but a Spiritual person by intendment may inform himself thereof well enough and therefore was vouched 18 H. 7. and 1 H. 8. Kellway's Reports which plainly proves that diversity And by the 19 Eliz. fo 360. in Coleshil's Case it is said That when the King hath Presented a Repeal by him ought not to be admitted after Institution And by Dyer 339. in Yatton's Case the King may Repeal his Presentation by a new Presentation without mention made of the former except that the Second Presentation be obtained by Fraud Also the King may Present by Paroll as was said by Sir Ed. Coke in the Lord Windsors Case and as appears by 17 Eliz. Dyer as was vouched by Bromley Baron in the foresaid Case of Calvert against Kitchin where it was said by Altham Baron That by the Kings death his Presentation determines understand it before Institution and so it is said in 34 E. 3. 8. tit Quare Impedit 11. That a Presentment made by a Bishop becomes null and void by his death And in 38 Ed. 3. 3. if a Bishop Present and die before c. the King shall Present anew 11. Nomination is a power that by virtue of a Mannor or otherwise a man hath to Nominate or Appoint a Clerk to a Patron of a Benefice by him to be Presented to the Ordinary for the same where Note 1 That it may be in right of a Mannor or otherwise 2 That the Clerk Nominated ought to be a person fit able and worthy 3 That it may be to a Parsonage Vicarage or other Spiritual promotion 4 That it ought to be to another than the Ordinary which other shall present him to the Ordinary And if one hath a Right to have the Nomination of a Clerk to a Benefice and another Disturbs him he cannot have a Quare Impedit ipsum Nominare ad Ecclesiam but the Writ shall be Quod permittat ipsum Praesentare And the Count shall be That of Right he ought to Name a Clerk to such as one who ought to Present him to the Bishop and that a Stranger doth disturb him of his Nomination and in case he doth Recover the Judgment shall be Quod Episcopus admittat Clericum ad Nominationem suam 12. If A. B. doth Grant unto J. S. That he shall Name a Clerk to him to the Church of C. when it shall become void and that A. B. shall present unto the Bishop the Clerk which J. S. shall Nominate to him in that case the Presentation is in J. S. and he shall have a Quare Impedit for all the Profit is in him and the Grant of the Nomination and Presentation is all one But if A. B. doth Grant unto J. S. That he shall Nominate to him Two Clerks whereof A. B. shall Present one in that case the Presentation is not given to J. S. the Grantee because it is in the Election of A. B. which of the Two shall have the Benefice And this was the Opinion of the Justices in Smith and Clayton's Case 13. If A. hath the Nomination to an Advowson and B. the Presentation if A. Nominates C. for his Clerk and B. that should present C. doth present D. for the Clerk A. that hath the Nomination shall have a Quare Impedit and the Writ shall be Quod permittat eum Praesentare albeit A. had but the Nomination otherwise he should be without remedy for in such cases where the party can otherwise have no Right done him the Law will admit such Writ albeit the words therein be improper And if he who had but a Nomination corruptly agree to make a Presentation or Nomination this Nomination shall be forfeited to the King within the Statute of 31 Eliz. cap. 6. as was said in Calvert's Case against Kitchin and Parkinson and as it is said in Plowden in Hare and Bickley's Case He who hath the Nomination hath the effect of the Advowson Yet as in the said Case of Calvert this diversity seems to be good That if A. hath the Presentation and B. the Nomination to a Benefice and the Presentor upon a Corrupt agreement make a Presentation unknown to the Nominator here the Nominator shall not be prejudiced within the Statute of 31 Eliz. cap. 6. 14. In Green's Case vouched by Atthowe Serjeant in the Case of the King against the Archbishop of Canterbury and one Thomas Prust upon a Quare Impedit brought by the King it is said That if the Bishop Collate before the Six months incurr the Collatee is Incumbent but the Patron may Present at any time aster for that fills the Church but not against the Patron and hinders that no Lapse may incurr to another In Sir Hen. Gawdy's Case for the Church of W. the Church there became void and within fourteen daies after the King Presented one to it jure Prerogativae the Presentee continues possession above thirty years and then the Mannor and the Advowson came to Sir Henry Gawdy the Church is void and the King Presents again and was disturbed by Sir Henry For that the King brought a Quare Impedit and Adjudged That the Presentation of the King within the Six months was not an Usurpation But if he had Presented in his own right there should have been an Usurpation When a Title by Lapse is in the King if any Present the King may remove him during his life by Quare Impedit All this appears by Baskervil's Case but if the Incumbent die the term of the King is gone and if
as in case of Single Corporations Bishops Deans and Parsons which must die and leave a Vacuum of the Freehold And this Next Avoidance is a Chattel locally where the Advowson is not where the Deed is for it was Resolved in the Case of Holland vers Shelley That the Advowson had such a Locality in the Rape where the Church was that it accrued to the Plaintiff wheresoever the Deed of Grant or the Grantee himself was 4. C. brought a Quare Impedit against the Archbishop of Canterbury and others and Declared upon a Grant of the Next Avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had Writ to his Father that he had given to his Son that was the Plaintiff the next Avoidance and upon this there was a Demurr And the whole Court for the Demurr For that such Letter was a Mockery for the Grant was not good without Deed and Judgment was given accordingly But by Deed it is Grantable whereby Advowsons are also Grantable as other Inheritances are and the delivery of the Deed of Grant of it shall be instead of Livery made of the Church it self according to Sir Edward Coke in the first Part of his Institutes 5. If a Tenant in tail and his Son joyn in a Grant of the Next Avoidance it is void against the Son and no Confirmation for in the case of a Quare Impedit brought by Sir Marmaduke Wivel the Point was this Tenant in tail of an Advowson and his Son and Heir joyned in a Grant of the Next Avoidance The Tenant in tail died and it was Adjudged that the Grant was utterly void against the Son and heir that joyned in the Grant because he had nothing in the Advowson neither in possession or right nor in Actual possibility at the time of the Grant 6. The Acceptance of an Archdeaconry by one who hath a Benefice with Cure of Souls may work an Avoidance at the Canon Law as to such Archdeaconry yet an Archdeaconry and the Promotion thereof as being not any Cure of Souls though an Ecclesiastical Preferment seems not to be within the Statute of 21 H. 8. 13. And the Opinion of Wray Chief Justice in Vnderhill's Case upon that Statute was that he conceived the Law there to be qualified in that case by reason of a Proviso in the said Statute viz. Provided that no Deanary Archdeaconry c. be taken or comprehended under the name of a Benefice having Cure of Souls in any Article above specified 7. In a Quare Impedit the Case was The Plaintiff counted that R. B. was seized of an Advowson and granted the Next Avoidance to the Plaintiff and H. B. and that afterwards the Church became void and after during the Avoidance H. B. released to the Plaintiff and so that it belongs to him to Present Upon this Count the Defendant did demurr in Law for it appeareth upon the Plaintiffs own shewing that H. B. ought to have joyned with the Plaintiff in the Action for the Release being made after the Church became void is not of any effect but utterly void So is the Grant of the Presentment to the Church where the Church is void for it is a thing in Action Vid. the Lord Dyer 28 H. 6. 26. 3 M. Dyer 129. 11 Eliz. Dyer 283. And afterwards Judgment was given that the Release was void 8. Touching Avoidances there is a wide difference between the Judgment of the Common Law and that of the Canon for if a meer Lay-man not having holy Orders be Presented to a Benefice the Church remains void according to the Canon Law notwithstanding such Presentation but at the Common Law albeit this be a meer nullity there also and void yet it doth adjudge the Church to be Full according to the publick Admission Institution and Induction and not according to the capacity of the person which is a thing secret until such an one be deprived for it by Sentence in the Spiritual Court and so the Church in construction of Law understand it of the Common Law is held void but from the time of Deprivation of which notice ought to be given to the Patron So that according to the Canon Law there cannot be a Plenarty by the Presentation Admission Institution and Induction of a meer Lay-man to a Church it is otherwise at the Common Law which doth not so much consider the Capacity or Incapacity of the person Instituted and Inducted as the Institution and Induction it self until such time as there is a Sentence of Deprivation in the Ecclesiastical Court 9. Cession is when an Ecclesiastical person Beneficed is Created a Bishop or when the Parson of a Parsonage taketh another Benefice without Dispensation not being otherwise qualified for Plurality In both which cases their first Benefices become void and are said to be so void by Cession insomuch that the King shall Present pro hac vice whoever be Patron to that Benefice which he had who was Created Bishop and in the other Case the Patron may Present So that if a Parson or Dean in England take and accept of a Bishoprick in Ireland it will cause that the First Church shall become void by Cession Resolved in Holland's Case and in Digby's Case 4. Rep. That the Patron may Present as soon as the Incumbent is Instituted in a Second Living without Deprivation 10. By the Council of Lateran it was Ordained That whoever having a Benefice with Cure of Souls should accept of another cum Cura should ipso jure be deprived of the former the Patron whereof might Present as to a Benefice void and this without any Sentence Declaratory of the First Church being void if there were no License or Dispensation to the contrary in the case to prevent a Cession of the former Benefice For it hath been Resolved That the Acceptance of a Second Benefice voids the former by Cession without any Sentence Declaratory by the Statute of 21 H. 8. 13. but if having a Benefice cum Cura he Accept of an Archdeaconry the same is not such a Benefice with Cure of Souls within the said Statute as to make the former void as was then also Resolved 11. In case of Cession in this kind it is requisite that Notice thereof be given by the Ordinary to the Patron otherwise the Lapse will not incurr against him in case he Present not within the Six months Nor do the Courts at Common Law take notice of such Cession until the same be certified unto them by the Ordinary And wherever an Ecclesiastical Dignity and a Benefice with Cure are Incompatible there the Acceptance of the one will be a Cession of the other For which reason if the Incumbent of a Parsonage or Vicarage with Cure be made Dean of a Cathedral his Parsonage or Vicarage becomes void by Cession
Or thus The Next Avoidance was granted to Two the one Released to the other who brought a Quare Impedit in his own Name and it was adjudged maintainable because it was before the Church was void 20. A. seized of the Mannor of D. to which an Advowson was Appendant granted the Next Avoidance to B. and D. eorum cuilibet conjunctim divisim Haered Executor Assignatis suis The Church void B. Presents D. to the Church Adjudged that the Presentment of him was good though he were one of the Grantees CHAP. XXVI Of Pluralities 1. Pluralities condemned by the Council of Lateran yet dispenc'd with by Kings and Popes 2. What in this matter the Pope anciently exercised by way of Vsurpation the King may now do de jure The difference between them in the manner how 3. What persons are qualified for granting or receiving Pluralities 4. Several Laws relating to Pluralities Dispensations and Qualifications 5. How the 8 l. annual value of a Benefice shall be understood whether as in the Kings Books or according to the true value of the Benefice 6. The Lord Hobart's Opinion touching the Statute of 21 H. 8. relating to Pluralities 7. What the Pope's Power in England was before the making of the said Statute And whether the taking of a Bishoprick in Ireland by a Dean in England makes the Deanary void by Cession 8. The Chaplains of Persons of Honour having divers Benefices shall retain them for their Lives though they be discharged of their Service 9. Whether the Ecclesiastical Court may take cognizance of Plenarty or Voidance after Induction And whether the cognizance of Cession or no Cession belongs to the Temporal or Spiritual Count. 10. Difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law 11. A Prohibition granted upon Sequestration of a Benefice by the Bishop 12. The Fifth Paragraph aforesaid Adjudged and determined 13. How the Voidance in case of Three Benefices in one person 14. Benefice not void if the King License the Incumbent to be an Incumbent and a Bishop 15. How the taking of a Second Benefice is a Voidance of the First 16. Whether so in case of a Chaplain of the King 17. Whether so in case of a Si modo or Modo sit by way of a Limitation in the Dispensation 18. Whether the word Dispensamus be necessary in the Letters of Dispensation for a Plurality 19. The Kings Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8. 20. Whether a Third Chaplain retained by a Countess Widow is qualified to purchase a Dispensation for Plurality 21. In reference to Plurality whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice 22. Whether Admission and Iustitution makes the First Benefice void without Induction 23. Whether before the Statute of 25 H. 8. the Pope might here grant Dispensations for Pluralities 24. Whether the Retainer of a Chaplain may be good and sufficient without a Patent 25. In what case a Dispensation for Plurality may come too late though before Induction 26. Three Resolutions of Law in reference to Avoidance by reason of Plurality 1. PLurality according to the Common acceptation of the word is where one and the same person is possessed of Two or more Ecclesiastical Benefices with Cure of Souls simul semel It was long since condemned by the general Council of Lateran whereby it was Ordained That whatever Ecclesiastical person having one Benefice with Cure of Souls doth take another such shall ipso jure be deprived of the former and if he contest for the retaining thereof shall lose both Notwithstanding which Canon it was heretofore usual with the Pope to usurp a power of Dispensation in this matter the which de jure was anciently practised by Kings as Supream and as the original Donors of Benefices and Ecclesiastical Dignities witness Edmond that Monk of Bury who by virtue of such Dispensations held several Ecclesiastical Benefices at one and the same time The said Canon as to the substance thereof relating to Pluralities is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards and the time of Avoidance thereof to be immediately after possession by Induction into the other with Cure of Souls with power of Presentation de novo granted to the Patron of the former Benefice and all benefit of the same to the Presentee as if the Incumbent had died or resigned Q. Whether the said yearly value of Eight pounds or above ought to be computed according to the valuation in the Kings Books as returned into the Exchequer and now used in the First-Fruits Office or according to the just and true value of the Benefice Q. likewise Whether a Parson of a Church Impropriate with a Vicar perpetually endowed accepting of a Presentation unto the Vicarage without Dispensation be a Pluralist within the Canon and Statute aforesaid The Negative is supposed to give the best Solution to the Question 2. The same power of granting Faculties Pluralities Commendams c. which anciently the Pope exercised in this Realm by Usurpation is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferr'd unto and vested in the Crown de jure also from and under the King in the Archbishop of Canterbury and his Commissaries by Authority derived from the Crown The Pope anciently granted to Bishops after Consecration Dispensations Recipere obtinere Beneficium cum cura animarum to hold the same in Commendam the which he did in this Realm by Usurpation and which the Crown may now do de jure for the same power as aforesaid which the Pope had is by the Acts of Parliament in 25 H. 8. 1 Eliz. in the King de jure But there is a very material difference between the Dispensations anciently here granted by the Pope and those at this day by the King and Archbishop Confirmed by the Kings Letters Patents which are not good otherwise than to such as are Compleat Incumbents at the time of granting thereof whereas it was sometimes otherwise with the other whence it is observable that in Digbie's Case the Dispensation came too soon A. is Instituted and Inducted into a Benefice with Cure value Eight pounds per ann Afterwards the King presenting him to another with Cure he is Admitted and Instituted Afterwards the Archbishop of Canterbury grants him Letters of Dispensation to hold Two Benefices the King confirms the same Afterwards he is Inducted into the Second Benefice In this case the Dispensation comes too late because by the Institution into the Second Benefice the First Benefice was void by the Stat. of 21 H. 8. 3. The Acceptance of a Second Benefice with a Dispensation comes not under the notion of prohibited Pluralities in case
notwithstanding they were several Advowsons and several Quare Impedits might be brought of them and several Actions maintain'd for their several Possessions yet the Presentment of one man to the Parsonage and Vicarage was no Plurality because the Parsonage and Vicarage are but one Cure And there is a Proviso in the Statute That no Parsonage that hath a Vicar endowed shall be taken by the Name of a Benefice with Cure within the Statute as to make it a Plurality 6. The Lord Hobart in Colt and Glover's Case against the Bishop of Coventry and Lichfield is clear of Opinion That Bishopricks are not within the Law under the word Benefices in the Statute of 21 H. 8. cap. 13. So that if a Parson take a Bishoprick it avoids not the Benefice by force of this Law but by the ancient Common Law as it is holden 11 H. 4 60. But withal he holds it as clear That if a Bishop have or take two Benefices Parsonages or Vicarages with Cure either by Retainer or otherwise de novo he is directly as to these Benefices within the Law for he is to all purposes for those not a Bishop whether it be in his own Diocess or not but a Parson or Vicar and by that Name must sue and be sued and Prescribe and Claim For if any person having one Benefice with Cure c. take another c. whosoever will hold two Benefices must have such a Qualification and such a Dispensation as the Law 21 H. 8. requires Whereupon the Lord Hobart in the foresaid Case is clear of Opinion That if a man be qualified Chaplain to any Subject and then be made a Bishop his Qualification is void so as he cannot take two Benefices de novo after by force of that Qualification But if he had lawfully two Benefices before his Bishoprick he may by Dispensation of Retainer besides his former Dispensation to take two Benefices hold them with his Bishoprick And if a man being the King's Chaplain take a Bishoprick he holds that he ceaseth to be the King's Chaplain and Bishops are not in that respect Chaplains to the King within the meaning of the Statute So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain will not serve them In this Case of Colt c. against the Bishop of c. he is of Opinion That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure to be united to it after though they make but one Benefice for this Cautel of Union is provided for by Name But of Unions before he is of another Opinion Case Colt Hob. Rep. 7. In ancient times the Pope used to grant Dispensations of the Canons in this Realm and so might the King have done The first Statute that restrain'd the power of the Pope was that of 21 H. 8. of Pluralities That the Church shall be void notwithstanding any Grant of the Pope Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices and so might the King The 21 H. 8. was the first Statute or Law which gave allowance for Pluralities afterwards by the 28 H. 8. the power of the Pope was given to the King But as it was said and agreed in the Case of Evans and Ascough that was not by way of Introduction but Cumulutive and by way of Exposition And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King and Dispensation granted by the King or by the Archbishop is good Also in the said Case it was agreed by all the Justices That if a Parson or Dean in England doth take a Bishoprick in Ireland it makes the first Church void by Cession because Ireland is a Subordinate Realm to England and governed by the same Law For it was there agreed by all as well by the Justices as those of the Barr That if a Parson or Dean in England take a Bishoprick in Ireland the first Church is void by Cession Justice Whitlock gave this Reason for it Because there is but one Canon Law per totam Ecclesiam and therefore wherever the Authority of the Pope extended it self be it in one or divers Realms the taking of a Bishoprick made the Deanary or Parsonage void Nemo potest habere duas Militias nec duas Dignitates est impossibile quod unus homo potest esse in duobus locis uno tempore And 5 R. 2. F. Tryal 54. the whole Spiritual Court is but one Court which Book is very remarkable to that purpose That the Canon Law is but one Law Which Reason was also given by Justice Doderidge in the same Case and upon the same point who said That the Law of the Church of England is not the Pope's Law but that all of it is extracted out of Ancient Canons as well General as National Another Reason which he then gave was Because Ireland is a Subordinate Realm and governed by the same Law Because although before the time of H. 2. they were several Kingdoms or Realms yet the Laws of England were there Proclaimed by King John and is subject to the Laws of England And if the King having a Title to Present to a Church in Ireland confirm it to the Incumbent under the Great Seal of England it is good 45 Ed. 3. 70. 8. In Savacre's Case it was adjudged in the Common Pleas That if a Baron or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices and after they discharge their Chaplains from their Service they shall retain their Benefices during their Lives and if the Baron takes others to be his Chaplains they cannot take many Benefices during the Lives of the others which are Beneficed and Discharged of their Services for if the Law were otherwise the Lords might make any capable of holding Benefices by admitting them to be their Chaplains 9. T. prayed a Prohibition to the Arches the Case was this One had a Recovery in a Quare Impedit and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted c. and after the Recovery died and T. supposing his heir to be in the Ward of the King and that the said A. took another Benefice without sufficient Qualification by which the Church was void by Cession and he attained a Presentation of the King and he was Admitted c. by the Lord-keeper being within the Diocess of Lincoln and A. sued him in the Ecclesiastical Court and T. prayed a Prohibition and it was granted per totam Curiam for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party And whether it is a Cession
or not doth properly belong to the Common Law And Jones cited a Judgment in William's Case according Note that by the Constitution of Otho and Othobon That Institution and Induction is voidable in the Ecclesiastical Court if no Prohibition be prayed 10. In the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk in a Quare Impedit was vouched Holland's Case in Cok. 41 51. to shew that there is a difference between Voidance by Act of Parliament and Voidance by the Ecclesiastical Law For before the Statute by the taking of the second Benefice the first Church was void but not so that the Lapse incurred upon it And as for Pluralities the words of the Statute are That it shall be void as if he were naturally dead and therefore if a man takes a second Benefice and dies Issue ought to be taken whether the first vacavit per mortem And it is found That Not For it was void before the death of the Incumbent 11. P. was Collated Instituted and Inducted by the Bishop of Exeter Patron Dr. Hall the Bishop Collates another pretending that the first Incumbent had taken a second Benefice whereupon the first was void and revera the first Incumbent had a Dispensation And notwithstanding that the Bishop Sequesters the Benefice and upon Discovery thereof to the Court a Prohibition was granted 12. In Bene's Case against Trickett the point was Whether the value of the Church for Plurality by 21 H. 8. shall be eight pounds according to the Book of Rates and Valuation in the First-fruits Office or according to the very value of the Church per Annum Atkinson That according to the value of the King's Books For the Parliament never thought that any man could live upon so little as eight pounds per Annum which is not six pence a day Note 38 E. 3 4. and Dyer 237. but by the Court That it shall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner to whom agreed Yelverton That the eight pound shall be accounted according to the very value of the Church per Annum 13. In a Quare Impedit it was doubted If A. having two Benefices with the Cure by Dispensation and then takes a third Benefice with Cure If now both the first Benefices or the first of them only be void Hieron said That it was adjudged that both of them should be void 14. If the King grant a Licence to an Incumbent to be an Incumbent and a Bishop and he afterwards be made a Bishop the nâ—â—ice is not void Henry de Blois Brother to King Stephen was Bishop of Winchester and Abbot of Glassenbury 15. It seems that at the Common Law if an Incumbent had taken a second Benefice with Cure neither the first nor the second had been void But by the General Council of Lateran held in the year 1215. it was ordained That if a man took divers Benefices with Cure of Souls the first should be void unless he had a Dispensation from the Pope This Constitution of the said General Council is ratified and confirmed in Pecham's Constitutions at a Provincial Synod held in this Realm Also if an Incumbent take a Second Benefice with Cure whereby the first is void by the Canon as to the Patron so as he may Present before any Deprivation yet until Deprivation it is not void as to a Stranger for if he sues a Parishioner for Tithes the taking of a second Benefice is not any barr to him Trin. 13. Car. B. R. per Justice Bark which Justice Yelverton in his Argument in Prust's Case said That it had been so Adjudged And if an Incumbent of one or more Benefices with Cure be consecrated Bishop all his Benefices are ipso facto vold upon which Voidance the King and not the Patron is to Present to the Benefices so void by Cession and any Dispensation after Consecration comes too late to prevent the Voidance for the Pope could formerly and the Archbishop now can sufficiently Dispense for a Plurality by the Statute of 25 H. 8. The chief Text of the Canon Law against Pluralities seems to be that of the Decretal de Praebend Dign c. de multa where it is said That in Concilio Lateranensi prohibitum ut nullus diversas Dignitates Ecclesiasticas vel plures Ecclesias Parochiales reciperet contra Sanctorum Canonum Instituta c. Et praesenti decreto statuimus ut quicunque receperit aliquod Beneficium curam habens animarum annexam si prius tale beneficium habehat sit ipso jure privatus si forte illud retinere contenderit etiam alio spolietur c. Consonant to which is that in Decret Caus 21. q. 1. In duabus Ecclesiis Clericus conscribi nullo modo potest In the Case of a Commendam adjudged in Ireland the Original and Inconvenience of Dispensations and Non obstante's was well weighed and considered where it was said That the Non obstante in Faculties and Dispensations was invented and first used in the Court of Rome for which Marsil Pat. pronounced a Vae against the said Court for introducing that clause of Non obstante That it was an ill President and mischievous to all the Commonwealths of Christendom For the Temporal Princes perceiving that the Pope dispensed with Canons in imitation thereof have used their Prerogative to dispense with their penal Laws and Statutes when as before they caused their Laws to be religiously observed like the Laws of the Medes and Persians which could not be dispens'd with See the Case of Penal Statutes Co. 7. fo 36. h. For this Reason it was that a Canonist said Dispensatio est vulnus quod vulnerat jus commune And another saith That all abuses of this kind would be reformed Si duo tantum verba viz. Non obstanie non impediâ—ent And Matth Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions which were beneficial for the Church of England Sed omnia baec alia says he per hoc repagulum Non obstante infirmantur 16. In a Quare Impedit the Case was Dr. Playford being Chaplain of the King accepted a Benefice of the Presentation of a common person and he after accepted another Presentation of the King without any Dispensation both being above the value of eight pounds per Annum The Question was Whether the first Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the second Benefice without Dispensation then this remains a long time void so that the King was intituled to present by Lapse and presented the Plaintiff The Statute of 21 H. 8. provides That he who is Chaplain to an Earl Bishop c. may purchase Licence or Dispensation to receive have and keep two Benefices with Cure provided that
the King Confirms and afterwards he is Inducted to the Church of D. In this Case it was Adjudged That the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons except the King and as to the Spititualties he is full Parson by the Institution 2. Resolved That admit the Church was not full by the Institution until Induction yet the Dispensation came too late for that the words of the Statute of 21 H. 8 of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retain that which he cannot receive 26. In the case of a Prohibition it was Resolved That by the Common Law before the Statute of 21 H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Archbishop had not Authority by the Statute of 25 H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute But yet the Statute as to those Dispensations which the Archbishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal CHAP. XXVII Of Deprivation 1. What Deprivation is and in what Court to be pronounced 2. The Causes in Law of Deprivation 3. In what Cases Deprivation ipso facto without any Declaratory Sentence thereof may be 4. A Cardinal 's Case of Deprivation by reason of Miscreancy 5. The Papal Deprivation by reason of Marriage 6. What the Law is in point of Notice to the Patron in case of Deprivation by reason of meer Laity or Nonage 7. The difference of operation in Law between Malum prohibitum and Malum in se and in what Cases of Deprivation Notice ought to be given to the Patron 8. Deprivation by reason of Degradation which Degradation at the Canon Law may be two ways 9. Cawdry's Case of Deprivation for Scandalous words against the Book of Common Prayer sentenced by the High Commissioners 10. Deprivation for Non-conformity to the Ecclesiastical Canons by the High Commissioners agreed to be good 11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz. 12. Deprivation by the High Commissioners for Drunkenness 13. The Church is not void by the Incumbents being Deprivable without Deprivation 14. For an Incumbent to declare his Assent to the Articles of Religion so far as they agree with the Word of God is not that unfeigned Assent which the Statute requires 15. A Church becomes void presently upon not Reading the Articles and there needs not any Deprivation in that Case 16. A Case wherein a Sentence declaratorie for Restitution makes a Nullity in the Deprivation 17. An Appeal from a Sentence of Deprivation prevents the Church's being void pro tempore 18. Vpon Deprivation for meer Laity or Incapacity the Lay-Patron must have Notice ere the Lapse incurrs against him 19. An Incumbent Excommunicated and so obstinately persisting 40 daies is Deprivable 1. DEprivation is a discharge of the Incumbent of his Dignity or Ministery upon sufficient cause against him conceived and proved for by this he loseth the Name of his First Dignity and that either by a particular Sentence in the Ecclesiastical Court or by a general Sentence by some positive or Statute-Law of this Realm So that Deprivation is an Ecclesiastical Sentence Declaratory pronounced upon due proof in the Spiritual Court whereby an Incumbent being legally discharged from Officiating in his Benefice with Cure the Church pro tempore becomes void So that it is in effect the Judicial incapacitating an Ecclesiastical person of holding or enjoying his Parsonage Vicarage or other Spiritual promotion or dignity by an Act of the Ecclesiastical Law only in the Spiritual Court grounded upon sufficient proof there of some Act or Defect of the Ecclesiastical person Deprived This is one of the means whereby there comes an Avoidance of the Church if such Sentence be not upon an Appeal repealed The causes of this Deprivation by the Canon Law are many whereof some only are practicable with us in the Ecclesiastical Laws of this Realm and they only such as are consonant to the Statutes and Common Law of this Kingdom 2. All the Causes of Deprivation may be reduced to these Three Heads 1 Want of Capacity 2 Contempt 3 Crime But more particularly It is evident that the more usual and more practicable Causes of this Deprivation are such as these viz. a meer Laity or want of Holy Orders according to the Church of England Illiterature or inability for discharge of that Sacred Function Irreligion gross Scandal some heinous Crime as Murther Manslaughter Perjury Forgery c. Villany Bastardy Schism Heresie Miscreancy Misbelief Atheism Simony Illegal Plurality Incorrigibleness and obstinate Disobedience to the approved Canons of the Church as also to the Ordinary Non-conformity Refusal to use the Book of Common Prayer or Administer the Sacraments in the order there prescribed the use of other Rites or Ceremonies order form oâ— celebrating the same or of other open and publick Prayers the preaching or publishing any thing in derogation thereof or depraving the same having formerly been convicted for the like offence the not Reading the Articles of Religion within Two months next after Induction according to the Statute of 13 Eliz cap. 12. The not Reading publickly and solemnly the Morning and Evening Prayers appointed for the same day according to the Book of Common Prayer within Two month next after Induction on the Lord's Day the not openly and publickly declaring before the Congregation there Assembled his unfeigned assent and consent after such Reading to the use of all things therein contained or in case of a lawful Impediment then the not doing thereof within one month next after the removal of such Impediment a Conviction before the Ordinary of a wilful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion a persistance therein without revocation of his Error or re-affirmance thereof after such Revocation likewise Incontinency Drunkenness and 40 daies Excommunication To all which might also be added Dilapidation for it seems anciently to have been a Dilapidator was a just cause of Deprivation whether it were by destroying the Timber-trees or committing waste on the Woods of the Church-Lands or by putting down or suffering to go to decay the Houses or Edifices belonging to the same as appears by Lyford's Case as also in the Bishop of Salisbury's Case
Conviction of Perjury in the Spiritual Court according to the Ecclesiastical Laws which although as aforesaid it be a just Cause of Deprivation must yet be signified by the Ordinary to the Patron so also must that Deprivation which is caused by an Incapacity of the party Instituted and Inducted for want of Holy Orders 3. By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls value 8 l. per ann take another with Cure immediately after Induction thereunto the former is void and void without any Declaratory Sentence of Deprivation in the Ecclesiastical Court in case the Second Benefice were taken without a Dispensation and of such Avoidance the Patron is to take notice at his peril And as Avoidance may be by Plurality of Benefices incompatible without Dispensation so also by not Subscribing unto and not reading the 39 Articles as aforesaid which by the Statute of 13 Eliz. c. 12. is a Deprivation ipso facto as if the Incumbent were naturally dead insomuch that upon such Avoidance there need not any Sentence Declaratory of his Deprivation but the very pleading and proof of his not Reading the said Articles is a sufficient Barr to his claim of Tithes without any mentioning at all his being deprived in the Ecclesiastical Court Yet Sir Simon Degge in his Parsons Counsellor putting the Question What shall be intended by the words Deprived ipso facto as whether the Church shall thereby immediately become void by the Fact done or not till Conviction or Sentence Declaratory modestly waives his own Opinion and says it is a Quaere made by Dyer what shall be intended by the words ipso facto Excommunicate for striking with a Weapon in the Church-yard albeit by the Canon Law which condemns no man before he be heard requiritur sententia Declatoria 4. Touching Deprivation by reason of Miscreancy the Cardinal who by the Bishop of Durham was Collated to a Benefice with Cure is it seems the standing President in which case it was Agreed that notwithstanding the Cardinal 's being deprived for his Miscreancy in the Court of Rome yet whether he were Miscreant or not should be tried in England by the Bishop of that Diocess where the Church was 5. Among the many Causes of Deprivation forementioned you do not find that of Marriage in the Priest which was anciently practicable as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Maries daies partly because he was a Married person and partly because of his Religion was restored again in the time of Queen Elizabeth In whose Case it was Adjudged That his Deprivation was good until it was voided by a Sentence of Repeal whereby he became Incumbent again by virtue of his First Presentation without any new Presentation Institution or Induction In those days it was held That the Marriage of a Priest was a sufficient cause to deprive him of his Benefice Mich. 4. Ma. Dy. 133. 6. In the Case where a meer Lay-man is Presented Instituted and Inducted he is notwithstanding his Laity such an Incumbent de facto that he is not Deprivable but by a Sentence in the Ecclesiastical Court but then the Ordinary is in that case to give Notice of such Deprivation to the Patron otherwise in case the Ordinary for that cause refused him when he was Presented by the Patron But where Non-age is the cause of Deprivation as when one under the age of 23 years is Presented Notice is to be given it having been Adjudged That no Lapse shall incurr upon any Deprivation ipso facto without Notice seeing the Statute of 13 Eliz. 12. says nothing of Presentation which remaining in force the Patron ought to have Notice 7. As in the Admission of a Clerk to a Benefice whatever is a Legal impediment will also be a sufficient cause of Deprivation so in reference to both the Law takes care to distinguish between that which is only Malum prohibitum and that which is Malum in se and therefore doth not hold the former of them such as frequenting of Taverns unlawful Gaming or the like to be a sufficient cause of a Clerks Non-admission to a Benefice or of his Deprivation being Admitted Otherwise if you can affect him with that which is Malum in se in which case Notice is to be given the Patron by the Ordinary of the Cause of his Refusal or Deprivation as also it is in case of Deprivation for not Subscribing or not Reading the 39 Articles of Religion according to the foresaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular a general Notice of Incapacity not sufficing in which case an Intimation of such particular Incapacity affixed on the Church-door if the Patron be in partibus longe remotis or may not easily be affected therewith will answer the Law Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. 16 Eliz. Dyer 327. Co. par 6. 29. Green 's Case 8. It is evident from the Premisses That a Deprivation from an Ecclesiastical Benefice will follow upon a Disgrading or Degradation from the Ecclesiastical Function or Calling for this Degradation is the Incapacitating of a Clerk for discharge of that holy Function for it is the punishment of such a Clerk as being delivered to his Ordinary cannot purge himself of the Offence whereof he was convicted by the Jury And it is a Privation of him from those holy Orders of Clerkship which formerly he had as Priesthood Deaconship c. And by the Canon Law this may be done Two waies either Summarily as by Word only or Solemnly as by devesting the party degraded of those Ornaments and Rites which were the Ensigns of his Order or Degree But in matters Criminal Princes anciently have had such a tender respect for the Clergy and for the credit of the whole profession thereof That if any man among them committed any thing worthy of death or open shame he was not first executed or exposed to Publick disgrace until he had been degraded by the Bishop and his Clergy and so was executed and put to shame not as a Clerk but as a Lay-Malefactor which regard towards Ecclesiasticks in respect of the dignity of the Ministry is observed by a Learned Author to be much more Ancient than any Papistical Immunity and is such a Priviledge as the Church in respect of such as once waited on the Altar hath in all Ages been honoured with 9. Robert Cawdry Clerk Rector of the Church of L. was deprived of his Rectory by the Bishop of London and his Collegues by virtue of the high Commission to them and others directed because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common Prayer but the Form of the Sentence was That the said Bishop by and with the assent and
repealed dissolved extinguished and determined by King H. 8. by his Letters Patents in the 38th year of his Reign a new Court of Augmentations was erected by his Letters Patents which Repeal and Dissolution thereof was held void in Law because they had been erected by Authority of Parliament For which reason also the new Erection of the new Court of Augmentations was held likewise void and therefore the said Letters Patents as well for the dissolution of the former as for the erecting of the latter new Court of Augmentations were after confirmed and established by a Statute enacted by King Ed. 6. But afterwards Q. Mary according to the power given her for dissolution of the said Court by Act of Parliament did dissolve the same by her Letters Patents Dat. 1. Jan. in primo Regni and the day next following by other Letters Patents united the same to the Exchequer which was utterly void because she had dissolved the same before So as she pursued not her Authority and so it was Resolved by all the Judges The end and intent of this Court was that the King might be justly dealt with touching the profit of such Religious Houses and the Court took its name from this that the Revenues of the Crown were so much augmented by the suppression of the said Religious Houses and their Lands for by the suppressing of some and the surrendring of other Religious Houses the Royal Intrado was so much increased in the time of H. 8. that for the better managing of it the King erected first the Court of Augmentations and afterwards the Court of Surveyors But in short time what by the profuseness of some and the avariciousness of others it was at last so retrenched that it was scarce able to find work enough for the Court of Exchequer Hereupon followed the dissolving of the said Two Courts in the last Parliament by this King CHAP. XXX Of Annates or First-Fruits as also of Tenths of Aumone or Frank Almoign 1. Annates what why so called paid anciently to the Pope when and by what Laws translated to the Crown a Court thereof when erected and by whom dissolved 2. The great Antiquity of Annates or First-Fruits the great Revenue it brings to the Papal See often complained of as a great grievance anciently 3. The Popes receiving of Annates compared to Aaron the High Priest's receiving Tithe of Tithes The Original Antiquity and Equity thereof controverted by some of the Ancient Canonists 4. What the Tenure of Aumone or Frank Almoigne is a description thereof with its use and end 5. The difference between Statute and Common Law touching Annates or First-Fruits whether due and payable upon Institution or not till Induction 6. To whom the Tenths of Spiritualties were anciently paid and how they came to the Crown originally 1. BY the Statute of 25 H. 8. 20. Annates and First-Fruits of Archbishopricks and Bishopricks seem to be one and the same thing and were Anciently paid to the See of Rome and that throughout all Christendom as were also the Primitiae First-Fruits or Profits of every Spiritual Living but were afterwards by another Statute translated from the Pope to the Prince For the due regulation whereof there was a Court purposely crected by a Third Statute whereby it was made a Court of Record and commonly called the Court of the First-Fruits and Tenths and so continued until it was dissolved by Queen Mary since which time it was never restored albeit the Profits were reduced again to the Crown by Queen Elizabeth and the matters thereof to be transacted were transferred to the Exchequer The First-Fruits after the last Avoidance were probably called Annates because they took their measures from the rate or proportion of one years profit of all Spiritual Livings and Promotions and accordingly are to be compounded for so that these Annates Primitiae and First-Fruits are all one and it was anciently the value of every Spiritual Living by the year which the Pope claiming the disposal of all Ecclesiastical Livings reserved These and Improprâ—ations began about the time that Polydore Virgil lib. 8. cap. 2. makes mention of vid. Concilium Viennense quod Clemens Quintus indixit pro Annatibus These First-Fruits were given to the Crown â—0 H. 8. cap. 3. Sir Ed. Coke cites an Ancient Record of this Subject â—ill 34 Ed. 1. An. 1307. At a Parliament held at Carlisle great complaint was made of Oppressions of Churches c. by William Testa called Mala Testa and Legate of the Pope in which Parliament the King with the assent of his Barons denied the payment of First-Fruits and to this effect he writ to the Pope whereupon the Pope relinquished his Demand and the First-Fruits for Two years were by that Parliament given to the King These First-Fruits or Annates Primitiae are the First-Fruits after Avoidance of every Spiritual Living for one whole year except Vicarages not exceeding 10 l. and Parsonages not exceeding 10 Marks but all are to pay Tenths Which Tenths Ecclesiastical Decimae are the Tenth part of the value of all Ecclesiastical Livings yearly payable to the King his Heirs and Successors by the said Statute of 26 H. 8. cap. 3. and 1 Eliz. to be valued according to the value of Ecclesiastical Livings which were sometimes valued by a Book of Taxation made in 20 Ed. 1. which remaineth in the Exchequer and by another Taxation in 26 H. 8. which also remaineth in that Court. And according to this latter Taxation are the values of Ecclesiastical Livingss computed for the First-Fruits and Tenths The Lord Coke says That the Bishop of Norwich had in 19 Ed. 3. by Prescription time out of mind c. First-Fruits within his Diocess of all Churches after every Avoidance But these were also given to the Crown by the Statute of 26 H. 8. cap. 3. And as for the Tenths the Canâ—nists do hold That the Pope pretended to have them Jure Divino as due to the High Priest by pretence of these words Praecipe Levitis atque denuncia cum acceperitis à filiis Israel Decimas quas dedi vobis Primitias earum offerte Domino id est decimam partem Decimae ut reputetur vobis in Oblationem Primitiarum tam de areis quam de torcularibus universis quorum accipietis Primitias offerte Domino date ea Aaron Sacerdoti But the Parliaments in 25 H. 8. and 26 H. 8. were not of opinion that these Tenths did belong to the Bishop of Rome as appears by the several Preambles of the Statutes then enacted And had they been due Jure Divino to the Pope it is not probable that Queen Mary by the Act of 2 3 Ph. M. c. 4. would have exonerated and discharged the Clergy thereof nor refused to have had them paid to the Pope nor could the Bishop of Norwich as aforesaid have prescribed to have First-Fruits within his Diocess if they had
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
Adrian in the time of Offa King of Mereia during Englands Heptarchy in An. 786. Answ Possibly it might be so what follows thence does a thing lawful in it self become unlawful because a Pope enjoyns it what if he had commanded Alms to be given instead of Tithes must we therefore be neither honest in payment of the one nor charitable in giving the other because there was a Command of a Pope in the case 4. That AEthelstane Edmond Edgar Canutus and AEthelwolfe Kings of England Ordained the payment of Tithes meerly to pacifie their Consciences and thereby to make Atonement for their Blood-guilty Souls Answ Admit it were Historically true yet the final Cause of any Action or the End for which a thing is done alters not that quality that is inherent naturally in the thing A thing lawful in it self commanded for a wrong End perverts the Action not the thing if a man gives Alms that the Poor may be drunk though that be no Alms yet it doth not render Alms as unlawful nor alter that quality of Charity which is inseparable from Alms. 4. Tithes Anciently were Fourfold as 1 That which the People paid to the Levites 2 That which the Levites thence paid to the Priests 3 That which the Jews reserved for Expence in their Solemn Feasts when they went to the Tabernacle or Temple 4 A Third years Tenth which was then laid up for the Levite and the Poor The first of these is held a Natural Moral and Divine Tribute the second and third Ceremonial the fourth Judicial The Jews had also their Theruma which was not properly Tithe but a second kind of First-Fruits There were two kinds hereof the one called the Great Theruma the exact quantity whereof was not defined by Moses but the Ancient Lawyers determin'd that it might not be less than the fourtieth fiftieth or at least the sixtieth part of the kinds already dress'd and prepared as Wheat Fann'd Oyl and Wine Corn in the Ear taken from the heap and given to the Priests The other was the Lesser Theruma which was that when the former was taken away for the Priests the rest of the Heap was Tithed for the Levite the tenth part whereof the Levites gave to the Priests which was called the Tithe of the Tithe or the Theruma of the Tithe 5. Because the Law of Moses hath been divided into Three parts viz. Moral Judicial and Ceremonial some of the Schoolmen have thence conceived That Tithes admit the like division whereof the Moral part was only a necessary Maintenance for the Minister and therefore natural and perpetual The Judicial part was the number of Ten as fit only for the Jews and therefore positive and remotive The Ceremonial part was the Mystery contained in this Number of Ten which being as they taught but a shadow only was vanish'd and abolish'd with the Law it self and thence inferr'd that the Quotity or precise number of Ten being taken away by reason of the Ceremony a competency now only remains for the Minister out of the Tithes This Conceit hath occasioned no small prejudice to the Church although it hath no more probability of truth in it than that whereon it is grounded viz. That the Number of Ten is a type of Christ and that the inferiour Digits do signifie the People Levi himself paid Tithes to the first Priest we ever read of that is he paid them in Abraham which being urged by the Apostle against the Levitical Ceremonies argues that they are more than meerly Levitical and Ceremonial indeed if we consider their assignment to Levi's Tribe they are such but not otherwise The Sabbath and Tithes were both before the Law in their very Numbers respectively and were but repeated by Moses under the Law because they had been approved of God before the Law in the self-same Numbers The Sabbath is said to have a Moral and a Ceremonial part The Moral is perpetual and unalterable which is that God should have a Seventh day the Ceremonial being Typical of our Rest in Heaven is only positive and not so unalterable but that it might be as it is changed from the Seventh day of the Creation to the Seventh after our Saviours Resurrection So Tithes they also have a Natural and a Positive part the Natural is permanent and unalterable which is that God hath reserved to himself a Tenth of the increase c. for the Maintenance of his Ministers in which sense immediately after the dissolution of the Jews policy the Christians of the Primitive Church as soon as they could get any outward form of a Church and peace from Persecution received it in the very Quotity the Positive is That the Lord annexed those Tithes by Moses to the Priests and Levites for their maintenance during the dispensation of the Mysteries under the Law and thâ—refore changed by the Christians in the Primitive Church to the Christian Ecclesiasticks so that how this Quotity can be changed into a Competency sâ—â—ms neither demonstrable nor warrantable by the Word of God but that the Quotity ought to remain as a perpetual Right due to God and his Church And if any shall argue that Tithes are not to be paid or required in a Protestant Church because they have been ever so upheld in the Church of Rome such may as well argue they ought not to be paid in a Christian Church because they are paid to Mahumetan Princes for so they are and that because they were Priests for every Husbandman is bound to pay for Tribute the Tenth part of all his Corn to the Patriarch for the use of the Prince the relief of Impotent people and Widows and for maintenance of War against the Enemy Purch Pilgr lib. 6. cap. 1. § 3. p. 803. nu 10. 6. Tithes which anciently were meerly Ecclesiastical are now made Temporal Inheritances therefore are they Assets in the hands of the Heir the Wife endowed of them and the Tenant by the Courtesie shall hold them They are not grantable for life or years or for a longer term than one year but by Deed They cannot be extinguished by a Fâ—offment of the Land nor pass by a Devise of Lands with all profits and commodities thereto belonging and yet may be exchanged for Temporal Inheritances Anciently and at the Common Law there were none qualified to receive them but either an Ecclesiastical person or a mixt person as the King They are not extinct by their coming into any hands but of the Parson himself And that which is given in lieu of them is turned into a Spiritual Fee It is not paid more than once for one and the same thing in one and the same year and that only for the neat and clear profit of the thing Tithable It must be paid in kind if there be Corn now where Wood grew before or Wood planted now where Woodlands formerly were And the Law allows the Parson a convenient time to
remove the Tithe which circumstance of Time and the convenience thereof is triable by a Jury and if the Parson exceed the Time the Parishioner may have his Action against him as a Trespasser ab initio And some conceive that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth but it hath been Adjudged that the Common Law doth not so oblige a man But a severance of Nine parts from the Tenth part there must be for such Severance is so necessary and in a kind so essential to Tithes that they are not due nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made Yet the Parson may Grant his Tithes growing upon the Land before Severance which ought to be made by the Owner of the Land for though the property of Tithes set out by the Owner of the Land belongs to the Parson yet it is otherwise if they be set out by a Stranger And in case the Land be not in any Parish then the King shall have the Tithe thereof by his Prerogative and by the Custome of England But where Lands in themselves Tithable are not manured or ploughed specially in prejudice to the Parson in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land But if the Parishioner duly sets forth and severs the Tithe in convenient time and after Dammage happen to him by the Parsons not taking the same away in like convenient time in that case the Parishioner may have his Action on the Case against the Parson 7. The Common Law of this Realm takes notice of Tithes by the word Dismes Decimae of the French Decimes signifying Tithe or the Tenth part of all the Annual Fruits either of the Earth or of Beasts or Mans labour and industry due unto God and consequently to him that is of the Lords Lot and hath his share by his special appointment It signifieth also the Tenths of all Spiritual Livings yearly given to the Prince called a perpetual Disme which anciently were paid to the Pope until Pope Vrban gave them to K. Richard the Second to aid him against Charles the French King and such others as upheld Clement the Seventh against him as aforesaid It signifieth likewise a Tribute levied of the Temporalty But here it is to be understood as Quota pars omnium bonorum licite quaesitorum Deo Divina Institutione debita which though according to the Canon Law is a Tenth of Annual and lawful Encrease commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws The Practice whereof never met with any considerable interruption in any Age until Charles Martel's Sacrilegious Infeudations of Tithes about the year 650. which usher'd in such a President into the Christian World as could never to this day grow obsolete and out of use Notwithstanding from the beginning it was not so nor did any Lay-persons pretend to Tithes originally nor legally till the Statutes of Dissolutions of Abbies made them capable thereof whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee and Suable by the Laity in the Kings Ecclesiastical Courts 8. Where in the Books of the Common Law it is Reported That before the Council of Lateran every man might give his Tithes to what Church he pleased and might have bestowed them upon what person he thought best there it is also asserted for reason That before that Council there were no Parishes nor Parish-Priests that could claim them But by a Canon made in that Council every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise Here may arise a question Whether there were not Parishes long before any Council at Lateran For admitting that the Second Lateran Council was held in the year 1120 as S. Tho. Ridley computes it or that the general Council of Lateran was held in the year 1179 as Sir Simon Degge calculates it yet there seems of be a division into Parishes some Centuries of years before either of these For it is said That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 and from him derived into this and other Realms Also that Ecclesiastical persons first in this Kingdom made Divisions of Parishes as appears by our own Chronicles and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine who died in the year 693 And such as have followed the course of Antiquity in this matter conceive that the original of Parishes had its President from the practice of some Ancient Roman Bishops it being as some would have it recorded in the Pontifical of Damasus but in Anastasius's Bibliothecar it is found That when Peter had appointed and ordained Priests c. and Cletus had reduced them to a certain number Pope Euarist assigned to each of them his Parish and as to the time when those Parishes were assign'd by Euarist it must be about the beginning of the second Century which was many Centuries before the C. of Lateran as also was the practice thereof here in England by Honorius as aforesaid the truth whereof is approved by Cambden But Cavendum c. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish for it is equivocal having various acceptations as sometimes when nothing is named but a Parish the whole Diocess is understood which notion of the word often occurs in the Councils in which sense Barbatia spake a wide word for the Pope in his Tract de praest Card. when he said that in respect of his Holiness the whole world was but one Parish Sometimes a Parish is taken for such a part of the Diocess as was assign'd to some Priest arbitrarily sent and maintained by the Bishop to whom such a Parish paid all their dues and he to his Clergy about which time this custome was introduced that all Church-dues should be at the Bishops disposal to be divided into four portions whereof he should haveâ— part for himself another for his Clergy a 3d for the Poor and Strangers and the 4th to be reserved to the Parishioners for the repairing of Churches the collection of which dues was committed to the care of the Chorepise from which Quadripartite division probably came that custome whereby the Bishop of every Diocess might before the C. of Lateran make distribution of the Tithes within his Diocess where he thought convenient
for that although Prescription was alledged it is nothing to the purpose Atthowe For Fire-wood it was proved that Tithes alwaies was paid Richardson there is no doubt but the discharge also ought to be by Custome and to be grounded upon Modus Decimandi Yelverton and Crook otherwise that it is not upon Modus Decimandi but by the Common Law and the Reason is for that that when a man is Owner of Arable Land and he pay Tithe-Milk and Corn and for that they are discharged of things consumed in the House which are to make Masters and Servants fit to manure the Land c. Richardson said It is seen that it shall alwaies be Discharged in consideration it is alledged how a small Consideration will serve Crook It is not Modus Decimandi but the Discharge is for that that the Parson hath by them a benefit for he had by them better means of Tithes Hutton If a man had a House of Husbandry and Demises all the Land but the House he shall pay Tithes for them absumpt in the House Crook Not. No profit is made by them to the party but the Parson had a benefit by him And a day was given to search Presidents 43. A Parson Libels for the Tithes of young Cattel preserved for the Cart and the Question was whether in such Cases a Custome ought to be surmized And Crook F. N. B. is That of right Tithes shall not be paid for such things Richardson In all such Cases the Parson ought not to have Tithes if there be not a Custome alledged by which the Parson had any thing or Recompence or by which his other Tithe is better And he said That he had searched the Books and the Book of Entries and there is not any such Case but some Surmize is made as for that that he had Tithe of Corn in specie where the Land is enclosed and so the Corn better Hutton It ought to be Tried whether the thing in his nature be Tiâ—hable or any Usage to discharge it or not as the Cattel are in their nature Tithable then you cannot prohibit it but the Usage ought to be surmized so And it may be Law as the Parson had better Tithes Harvey If a Libel be for Tithes of Hedging and Fencing there a Surmize ought to be made to discharge that But when it is for Tithes of Heifers which in apparency ought to be spared by the Law of the Land otherwise it is c. Richardson for the Herbage of those Heifers Tithe is due by the Ecclesiastical Law and we never can take Tithe of them without express Custome or other Recompence Harvey there was a Case 16 Jac. C. B. A Paâ—son sues for the Herbage of Horses and the Parishioner alledged That he kept them for the carrying of Coals there he ought to surmize something to be Discharged and if he alledge That he kept them in his House for serving of Husbandry the other may alledge That he kept them to carry Coals and the Allegation is Traversable Richardson There was a Case where the Question was A Husbandman keeps a Horse to ride up and down about his business Whether he shall pay Tithe for the Herbage of him and a Prohibition was in that Case granted but a Surmize ought to be made Crook said That in the Kings Bench he had twenty times seen a Prohibition granted in such Cases without any Surmize And a Libel is for dry Cattel if it be alledged That they are kept for the Plough the other may alledge That he keeps them to sell without that that he keeps them for the Plough And before there is any profit of them it is not reason that they should be Tithable and the Parson shall have the benefit for them after And for Hedging it is Lex terrae that he shall pay no Tithes Richardson It is Lex terrae ne consuetudo loci facit legem terrae And if he had used to pay Tithes for the Cattel or for Hedging he ought not to pay that still If an ignorant man will pay Tithes for those things and after upon a Libel a Prohibition is granted if the other does not alledge a Custome the Prohibition shall stand or if they alledge a Custome which is â—ound against him no Consultation shall be granted And for a Garden-peny the reason of that is apparent for otherwise Tithes shall be paid in specie And so for Hearth-peny if he had alwaies paid it it ought to be paid Hutton If a man had an Ancient Garden for which he paid a peny and that is enlarged of that enlargement Tithes ought to be paid in specie 44. A. Libels against B. in the Ecclesiastical Court for the Tithes of two Pecks of Apples and for Feeding the Cattel upon the ground The Defendant for the Apples answered That there were Two pecks only growing in his Orchard and that they were stoln and never came to his use and for the Cattel That they were Ancient Milch-Beasts and that they growing old were dry And that for a month they depastured with other Heifers and that after they put them in a Meadow out of which the Hay was carried and afterwards he fed them with Hay in his House Atthowe Because that the Answer was not admitted prayed a Prohibition Hutton If Apples are upon the Trees and taken by a Stranger shall the Parson be hindered of his Tithe Yelverton If I suffer one to pull my Apples the Parson shall have Tithes but if they be taken by persons not known the Parson shall not have Tithes of them which was granted For they are not Tithable before plucking and for that if he suffer them to hang so long by negligence after the time that they are imbelized by Yelverton he shall pay Tithes For the second matter it was Agreed by the Court and for the depasturing in the Meadow and for the Hay with which they were fed afterwards Tithe shall not be paid because that the Parson had Tithes of them before But if the question be for the Tithes when they went with the other Heifers by Crook that is no cause to excuse the Tithe Harvey If I have Ten Milch-kine which I purpose to reserve for Calves and they are dry the Parson shall not have Tithe for their Pasture but if I sell them by which it appears I kept them for Fatting there Tithes shall be paid And Hutton agreed That although there was so small a time that they went with the Heifers yet Tithes shall be paid for their pasture during that time 45. In Walsingham and Stone 's Case it was said by Hutton That a Parishioner compounding for his Tithes for his life was not good without Deed. And it was said by Yelverton that the use in the Kings Bench is That if a Defendant in a Prohibition dies his Executors may proceed in the Ecclesiastical Court and it may be a
the hands of some viz. the Priors and afterwards Dr. Pope pulled off the Addition which he had made to the former Libel off from the second Libel And the whole Court said That if he proceeded upon that Addition that Sentence shall be given for Tithes upon any Prescription since the Statute that then they would grant a Prohibition Mich. 18. Jac. B. R. Dame Denton's Case and the Count of Clanrickard Roll. Rep. par 2. The Order of the Praemonstracenses were Discharged of all Tithes of their Land the which Manibus aut sumptibus excolebant propriis All the Chief Monks paid Tithe as well as other men till Pope Paschal at the Council of Mentz Ordained that they should not pay Tithes de Laboribus suis and that continued as a general Discharge till the time of H. 2. when Pope Adrian restrained it to three Orders viz. the Cistertians the Templers and the Hospitallers And the Discharge which the Order of the Praemonstracenses had was made by Pope Innocent the Third by his Bull. And after in the Council of Lateran ne Ecclesia nimium gravaretur it was provided That the Priviledge of the Templers should not extend to their Farmers Vid. Case Dickenson and Greenhall Mich. 22. Jac. B. R. Roll. Rep. 2. part In Hurrey's Case against Boyer in a Prohibition to the Ecclesiastical Court for stay of a Suit there for Tithes of Lands which were the possessions of the Hospital of St. John of Jerusalem upon Suggestion that the Prior of the said Dissolved House of St. Johns had this Priviledge from Rome which was by divers Councils and Canons viz. That the Lands of their Predecessors which by their own hands and costs they did Till they were not obliged to pay Tithes In this Case it was agreed That this Hospital was not Dissolved by the Statute of 31 H. 8. c. 18. of Dissolutions but by a Special Act made 32 H. 8. c. 24. by which their Corporation and Order was Dissolved and their Possessions given to the King with all the Priviledges and Immunities thereto belonging which the King granted to the Plaintiff in the Prohibition and whether he should hold them Discharged of the payment of Tithes was the question Harris Serjeant urged That this Immunity was annexed to the Corporation of the Prior and his Brethren of the said Hospital and doth not come to the King it being determined by the Dissolution of the said Hospital and so Adjudged in B. R. against the Book of 10 Eliz. Dyer 277. 60. 2. Coke the Bishop of Winchester's Case 14. B. and the Archbishop of Canterbury's Case 47. B. and 18 Eliz. Dyer 349. 16. Nichols Serjeant to the contrary and cited a Canon made by the Council of Mag. and another made by Innocent 3. An. 1215. and divers others and also the Statute of 2 H. 4. 4. and 7 H. 4. 6. and if Land be Discharged of payment of Tithes by Prescription of not Tithing and this Land come to the King the Priviledge remains and these Lands are given to the King in the same plight and case as they were in the Hospitallers and affirmed the Book of 10 Eliz. Dyer 277. 60. to be good Law and that the aforementioned Cases of the Archbishop of Canterbury and the Bishop of Winchester and the words of the Statute of 32 H. 8. 24. gives the King not only the Mannors Houses c. but also all Liberties Franchises Priviledges c. In this Case it was Confessed that it came by reason of the Order of the Cestertians as appears by the Canon And Hutton Serjeant arguing for the Defendant said that it appears by the Statute of 2 H. 4. 4. that it is Personal and that it differs from the Lands which came to the King by the Statute of 31 H. 8. For by that the King is Discharged of payment of Tithes and so are his Patentees but that this Priviledge is Personal and if so then it is determined by dissolution of the other and a personal Priviledge in case of Tithe is not transferred to the King Barker Serjeant for the Plaintiff in this case said That it was Ordained by Edgar King of this Realm that Tithes shall be given to the Mother-Church Also Edmund Ethelstone William the Conqueror and the Council of Magans specially provided that Tithes should be paid but did not appoint when they should be paid But the first Law which appointed the quantity was made in the time of Ed. 1. and this Ordained when they ought to pay the Tenth with the fear of God And before the Council of Lateran every one might pay his Tithes to what Parson he would and then were paid to Monasteries as Oblations If a Parson in one Parish claim Tithes in another as portion of Tithes due by Prescription to his Rectory he ought to shew the place especially viz. the place where the Tithes lie In the Seventeenth year of Ed. 2. the Order of the Templers was dissolved and their Possessions annexed to St. John of Jerusalem and they did not claim by any Bull of the Pope nor other Spiritual Canon but by Prescription which is Priviledge and private Common Law as appears by the Statute of Westm 2. cap. 74. And Menham's Canon in the time of Ed. 1. saith Let the Custome be observed And another Canon That Custome of not Tithing or of the manner of Tithing if they paid less than the Tenth part shall be observed Vid. Panormitan Cas Hurrey vers Boyer Brownl Rep. dict Cas Pasch 9 Jac. Rot. 1511. C. B. Brownl Rep. par 2. In the Bishop of Winchester's Case 38 Eliz. it was Resolved That at the Common Law none had capacity to take Tithes but Spiritual persons or Persona mixta as the King and regularly no meer Lay-man was capable of them except in special Cases for he could not Sue for them in the Court Christian and regularly a Lay-man had no remedy for them until the 32 H. 8. A Lay-man may be Discharged of Tithes at the Common Law by Grant or by Composition but not by Prescription for in the Books of the Common Law it is commonly said That a Law-man may Prescribe In Modo Decimandi but not In non Decimando And the reason is because he is not except in Special Cases capable of Tithes at the Common Law before the Statute of 32 H. 8. cap. 7. And therefore without Special matter shewed it shall not be intended that he hath any lawful Discharge and in favour of the Holy Church although it may have a lawful Commencement the Law will not suffer this Prescription In non Decimando to put it to the Trial of Lay-men A Spiritual person that was capable of Tithes at the Common Law in Pernancy may Prescribe to be Discharged of Tithes generally or to have a portion of Tithes in the Land of another Before the Council of Lateran every man might give his Tithes to any Spiritual person that he would and if the Lands of
qualities of the Persons of whom they were begotten 6. The different modes of prosecution of Bastardy in the Temporal and Ecclesiastical Courts 7. Limitation of Time in reference to Birth and Bastardy by the Civil Law The chast Widow of Paris whose Child born the 14 th Month after her Husbands death was adjudged Legitimate 8. Of a Child born before Marriage or immediately after Marriage or long after Marriage of a Woman whose Husband dyed without Bedding her whether Bastard or not 9. The legal computations of Time touching the Birth of a Child whether Legitimate or not And of such as are begotten after a Divorce 10. The punishment of a Woman having a Bastard that may be chargeable to the Parish 11. How the same Person may in divers respects be both a Bastard or Nullius Filius and yet a Son 12. The Physicians report in Court in a Case at Common Law how long a Woman may go with Child 13. The Bishops Certificate requisite in a Plea of Bastardy indisability of a Plaintiff 14. The power of the Justices of the Peace and of the Sessions in reference to the reputed Fathers of Bastards 15. In an Action for saying such an one had a Bastard a Prohibition to the Ecclesiastical Court because they admitted the Defendants Confession but would not allow of his Justification 16. Who are held as Bastardiz'd at the Common Law 17. What a Mulier is at Common Law 18. Other Descriptions of Muliers and Bastards 19. The difference between the Civil and Common Law in point of Muliers and Bastards 20. What kind of Divorce shall Bastardize the Issue 21. Different Resolutions touching Bastardy 22. A Man is Divorc'd Causa Frigiditatis Marries again hath Issue by the second Wife the first Living Q. Whether that Issue be a Bastard 23. A Case of Remark touching this Subject adjudg'd in Ireland 1. BASTARD Bastardus Nothus Spurius Filius Naturalis Filius Populi Filius nullius Incestuosus Adulterinus illegitimo coitu Progenitus Bastard is a French word Bastardd Brittish yet some are of opinion that the word Bastard hath its derivation from two German words Boes art that is Degeneris ingenii Q. an non è Graec. Bassaris i. e. Meretrix vel Concubina Bastard and Filius Naturalis are both one Bastard is that Male or Female that is begotten and born of any Woman not Married so that the Childs Father is not known by order and judgment of Law for which reason he is called Filius Populi 2. Bastard and Mulier are opposed each to other at the Common Law Otherwise at the Canon Law For at the Common Law by Mulier is meant and understood one that is lawfully begotten and born and therefore where they are compared together we shall find at that Law this addition to them Bastard eigne or Elder and Mulier puisne or Younger and by the Common Law he or she that is born before Marriage celebrated between the Father and Mother is called a Bastard and by that Law a Child begotten and born of a Woman out of Marriage by one who after Marrieth her is said to be not a Mulier but a Bastard This word Mulier seems to be a word corrupt from Melior or the French Melieur signifying at Common Law the lawful issue preferr'd before an Elder Brother born out of Marriage But by Glanvile such Lawful Issue seems rather Mulier than Melior because begotten à Muliere and not ex Concubina for he calls such issue Filios Mulieratos opposing them to Bastards Quia Mulieris appellatione uxor continetur l. Mulieris 13. ibid. gloss De verb. sign 3. Bastardy Bastardia at the Common Law signifieth a defect of Lawful Birth objected to one begotten out of Marriage which Law doth distinguish Bastardy into Special and General The later whereof being only a Certificate from the Bishop of the Diocess to the Kings Justices after just enquiry made whether the Party enquir'd of be Bastard or not upon some question of Inheritance and the former being only a Suit commenced at Common Law against him that calls another Bastard This being called Bastardy special because Bastardy is the principal and special matter in Tryal As the other is called Bastardy General because Inheritance is there the chief thing under debate and in contest By both these significations Bastardy at the Common Law seems to be taken only for an Examination or Tryal whether a Mans Birth be illegitimate and so does but rather imply what it is not than express what it is Which according to a better Definition is an unlawful state of Birth disabling the Partie to succeed in Inheritance 4. It appears by what hath been said that a Bastard is one that is born of any Woman so as the Father be not known according to the order of Law So that if any Woman hath a Child before her Marriage it is a Bastard And though the Father thereof after Marry the Mother yet in the judgment of the Common Law it is still a Bastard but at the Canon Law it is otherwise as aforesaid If one Marry infra gradui Maritagii and hath thereby Issue Q. whether it he a Bastard or Mulier in case Divorce doth after thereupon ensue If there be Issue by a second Husband or Wife the former then living such Issue is a Bastard A Woman Eloping from her Husband and Living in Avoutry her Husband being beyond Sea that he cannot come at her having Issue in this time this Issue seems to be a Bastard But by the Common Law if the Husband be infra quatuor maria he within the Jurisdiction of the King of England and his Wife have Issue in his absence No proof is Admissable to prove the Child a Bastard unless there be an apparent impossibility of Procriation in the Husband in which case such Issue albeit born within Marriage is a Bastard And by the Civil Law if the Husband be so long absent from his Wife or by no possibility of Nature the Child can be his or the Adulterer and Adulteress be so known to keep company together as that by just account of time it cannot fall out to be any other Mans Child but the Adulterers himself it is accounted to be a Bastard And yet in these very cases within this Realm unless the Husband be all the time of the impossibility of Procreation as aforesaid beyond the Seas the Rule of Law will hold true Pater is est quem Nuptiae demonstrant Note in debt upon an obligation by Cook Chief Justice And so was the Opinion of the Civilians That a Disagreement to the Marriage had under the Age of of Consent at the Age it ought to be published in Court otherwise the Issue may be Bastarded For a Disagreement in Writing is not a sufficient Disagreement nor a good Proof 5. The Law hath given several Appellations for the distinction of Bastards according to
the different conditions of the persons of whom they were begotten As when they were begotten by persons of a single and unmarried Estate and of such as were kept as Concubines the Civil Law called them Filii Naturales if begotten of single Women not design'd for Concubines for satisfaction of present Lust then they were called Spurii if begotten of such as the Law styles Scorta or common Harlots by publick profession than they were called Manzeres if begotten of Married Women then they were called Nothi if begotten between Ascendents and Descendents or between Collaterals contrary to the Divine prohibition then they are called Incestuosi 6. Bastardy so stains the Blood that the Bastard can challenge neither Honour nor Arms and so disables him that he cannot pretend to any succession to inheritance The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy but something as to the prosecution thereof The Ecclesiastical Law brings it two ways to Judgment Incidently and Principally the Common Law makes two sorts thereof General and Special Incidently at the Ecclesiastical Law when it is pleaded in Bar to a claim of something in right of Nativity Principally when by reason of some slanderous and reproachful speeches it is brought before the Court as the principal matter in Judgment to be alledged and proved that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge Ad Curiam enim Regiam non pertinet agnoscere de Bastardia General Bastardy at Common Law is so called because it is in gross objected in Barr against a Man to disappoint him in the Principal matter of his Suit Which because it is of Ecclesiastical Cognizance is sent by the Kings Writ to the Ordinary to enquire whether the Party charged with Bastardy were born in or out of Lawful Matrimony And as the Ordinary finds the truth of the matter upon due examination so he pronounceth accordingly in his Consistory whereof he returns Certificate to the Temporal Courts Special Bastardy at the Common Law seems to be only that where the Matrimony is confest but the Priority or Posteriority of the Nativity of him whose Birth is in question is controverted General Bastardy ought to be Tryed by the Bishop and not by the Country But Bastardy in this sense cannot be tryed by the Ordinary otherwise than by vertue of the Kings Writ on some Suit depending in the Temporal Court When Issue is joyn'd on Bastardy before it be awarded to the Ordinary to Try it Proclamation thereof is made in the same Court and after Issue it is certified into Chancery where Proclamation is made once a Month for three Months and then the Lord Chancellour certifies it to the Court where the Plea is depending and after it is Proclaimed again in the same Court that all such whom the said Plea concerns may appear and make their Allegations before the Ordinary whose Certificate of Bastardy is nothing to the purpose unless it come in by Process at the Suit of the Parties And this Bastardy ought to be certified under the Seal of the Ordinary for it is not sufficient to certifie it under the Seal of the Commissary And although the Defendant be certified a Bastard by the Ordinary yet the Certificate shall lose its force if the Plaintiff be afterwards Nonsuit for then the Certificate is not of Record In the Case of Elborough against Allen it was said by Crook that for calling one Bastard generally there is not any sufficient Ground of Action at the Common Law but if there be any special Loss thereby it shall be a good ground of Action at the Comon Law as if a Man be upon Marriage or in treaty for the sale of Land whereby his Title is disparaged Doderidge Justice said That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy and their Judgement is given for the damage which the party had in his birth and for that their Entry is quia laesis est natalitiis And in this Case the Chief Justice said that generally to say J. S. is a Bastard J. S. hath not cause of Action given him thereby but if there be a Temporal cause averr'd the Common Law may proceed therein for though Originally Bastardy be of the Ecclesiastical Jurisdiction not Triable at the Common Law and therefore as in its general nature it is of the Spiritual Jurisdiction so being by its generality no ground of Action at the Common Law yet if one be to sue for a Childs part or sue for the Administration of his Fathers Goods and this be set forth in the Declaration it will maintain an Action at Common Law Doderidge Justice said That to say generally that one called him Bastard is not ground of Action if he doth not shew some special Loss thereby as when a Woman brings her Action and says that she was in Treaty of Marriage and that the Defendant called her Whore this will not maintain an Action unless she say withall that by reason of these words she lost her preferment but Chamberlain Justice said to call a Woman Whore is at this day a sufficient cause of Action for her for that it is punishable by the Statute he also further said that if a Man Libel in the Ecclesiastical Court that he hath Lands by descent and that J. S. call'd him Bastard they may not proceed there or if they do a Prohibition lies He further said that for calling a Man Bastard generally without special Loss alledged Action shall be maintained and Cited a Case in 6 Eliz. Dyer Where a Man recovered red great Dammages for that the Defendant had said that his Father was a Bastard And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not alledge any special cause of Action and yet recovered 7. By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their Mothers Husband were to be accounted legitimate but such as were born in the end thereof were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law and gives us an instance of a Widow in Paris who was delivered of a Child the fourteenth Month after her Husbands death yet the good repute of this Womans continency prevailed so much against the Letter of the Law that the Court Judg'd the causes of Child-birth to be sometimes extraordinary the Woman to be chast and the Child Legitimate Hoc tamen in exemplum trahi facile non oportet as the Gloss there concludes 8. By the Common Law if a Child be born but an hour after the solemnization of Marriage it shall be the Husbands though it were begotten by another Man who was not the Mothers Husband and may be the Heir of him who Married the Mother but a Day
account 10 Months and 40 Weeks or all one but by accident an Infant may be born after the 40 Weeks or before Si partus nascatur post mortem Patru qui dicitur Posthumus per tantum tempus quod non sit verisimile quod possit esse defuncti filius hoc probato talis dici poterit Bastardus 13. It is agreed on all hands that Bawardy is an Ecclesiastica Cause and of Ecclesiastical Cognizance and therefore if Bastardy be pleaded in disability of a plaintiff the saâ—◠〈◊〉 be tried by the Certificate of the Bishop whether it be in Real Action relating to Inheritance or Personal relating to 〈◊〉 otherwise where Action on the Case will lie But if it be pleaded that the Plaintiff was born at such a place before the Marriage solemnized and so he is a Bastard This the Common Law cals a Special Bastardy and shall be tried by Jury at the Common Law where the Birth is alledged So in the Duke of Suffolk's Case of Partition where Special Bastardy was pleaded and Issue thereupon taken the Trial was awarded to be by a Jury of London And where in an Action upon the Case brought for calling one Bastard the Defendant justified that he was a Bastard it was awarded that it should be tried by the Countrey and not by the Ordinary Which seems somthing Paradoxical that if Bastardy be pleaded in Disability of a Plaintiff then it shall be tried by the Bishops Certificate but if it be pleaded that the Plaintiff was born in such a place before the Marriage then by a Jury The former whereof is said to be a general Bastardy the other a special Bastardy whereas in truth they both seem to differ only in this that the former seems to be a general relating to the Plaintiffs condition in respect of his Disability the other seems to be a special relating to the circumstances of Place and Time of his Nativity but both referring to his Bastardy 14. If a man that is ordered by two Justices of the Peace to keep a Bastard-Child he being according to the said Order the reputed Father shall appeal from the said Order to the next Quarter Sessions according to the Stat. of 18. Eliz. and being there discharged and the said Order repealed shall yet afterwards at another Quarter-Sessions of the Peace upon re-examination of the matter be ordered according to the first Order in that case it hath been held by the Court that the second Sessions had no power to alter the Discharge made by the former Sessions v And in another Case it hath been resolved that before the Statute of 3. Car. c. 4. the Justices at the Sessions had no Authority to intermeddle in the Case of Bastardy till the two next Justices according to the Stat. of 18. Eliz. had made an order therein As also that by the Stat. 3. Car. the Justices of their several Limits are to make an Order in Case of Bastardy 15. C. commenced an Action in the Spiritual Court against W. for saying that he had a Bastard W. the Defendant alledged in the said Court that the Plaintiff was adjudged the reputed Father of a Bastard by two Justices of the Peace according to the Statute whereupon he spake the words The Spiritual Court accepted of his Confession but would not allow of his Justification whereupon he prayed a prohibition and it was granted It is not denied but that if the Spiritual Court try a thing that is of Temporal Cognizance a Prohibition may lie although all the Cause were originally Spiritual as was resolved in Kenns Case in which Case it was likewise resolved that where the Cause is Spiritual there the Spiritual Court hath Jurisdiction and in the Case between Banting and Lepingwell it was resolved that the Judges of the Common Law ought that is the word in the Report to give Faith Credit to the Proceedings of the Spiritual Court albeit it be against the Reason of their Law 16. If a man having a wife take another wife and hath Issue by her living the former wife such Issue is a Bastard for the second Marriage is void If a man marry one within the Degrees prohibited the Issue between them is not by the Common Law a Bastard until there be a Divorce for by that Law the Marriage is not till then void So it is although the Brother Marry the Sister If a Man hath Issue by A. and after Marries her yet the Issue is a Bastard at the Common Law An Ideot may consent to Marriage by the Common Law though he were an Ideot from his birth and his Issue by that Law is Legitimate If the Husband be castrated so that it is apparent that he cannot by any possibility beget any Issue and his Wife have Issue divers years after it shall be a Bastard although it be begotten under Marriage for that it is apparent that it could not be Legitimate 17. By the Law of the Land a Man cannot be a Bastard who is born after the Espousals unless there be some special matter in the case If a Woman be big with Child by A. and after A. Marry her and the Issue is born within the Espousals in this Case by the Common Law the Issue is a Mulier and not a Bastard So if a Woman be big with Child by one Man and after-wards another Marries her and after the Issue is born such Issue is a Mulier for that he is born under Espousals and cannot be held the Issue of him by whom she was with Child because that cannot be certainly known and so it is although the Issue were born within three days after Marriage 18. If a Woman Covert hath Issue in Avoutrie yet if the Husband be able to get a Child and be infra quatuor maria the Issue is no Bastard If a Woman Elope and live in Avoutrie with another Man during which Issue is born in Avoutrie yet it is a Mulier by the Common Law But then the Husband must be infra quatuor maria so as that by intendment he might come to his Wife otherwise the Issue is a Bastard But if a Woman hath Issue her Husband being beyond sea for 7 years together before the Issue was born such Issue is a Bastard at the Common Law If a Feme Covert hath Issue her Husband being beyond Sea for 6 years before the Issue is born it is a Bastard at the Common Law If a Woman hath Issue her Husband being within 14 years of age the Issue is a Bastard at the common Law quaere 19. If A. hath Issue by B. and after they intermarry yet the Issue is a Bastard by the Common Law but it is a Mulier by the Civil Law If the Parents be Divorced causa Consanguinitatis they being ignorant thereof at their Marriage the Issues they
is the causes thereof the difference between the Civil and Canon Law touching the proof of impotency frigidity or disability and what manner of proof the Law requires thereof 2. What time of absence in the Husband may cause a Divorce 3. Whether Divorce by reason of Adultery dissolves the Marriage à vinculo or whether the innocent party may remarry altera existente 4. What the Canon in Concilio Arelatense provides in that Case 5. The opinion of some eminent Common Lawyers in this point 6. The different Opinions of Divines and Lawyers and of each among themselves touching this matter 7. The Opinion in summa Hostiens as also of Suarez touching the legality of second Marriage after Divorce 8. The Canon of the Council of Trent concerning Matrimony also the Opinion of some of the Ancient Fathers and a Decree of one of the Popes touching second Marriage after a Divorce 9. Decrees and Histories of great Antiquity relating to this Subject 10. What the Pontifical Law what Justinian what Baldus and what Grotius says in this matter 11. Opinions in this point take their diversification much from the cause of the Divorce as whether ex causa praecedenti vel subsequenti 12. Judgments at the Common Law that a Divorce for Incontinency is only à Thoro mensa non à vinculo 13. What the Law intends by Alimony and what Elopement signifies no Alimony due to her that Elopes 14. In what Cases the Law will allow Alimony or not 15. How the Civil Law provides in that Case of Alimony 16. The Ecclesiastical Court is the proper Court for Alimony 17. Whether the High Commission-Court had power of Alimony or not 18. Prohibition denied to the Husband sued in the Ecclesiastical Court by the Wife for Alimony in causa saevitiae 19. Whether the Ecclesiastical Court may take Bond for Alimony or Imprison for non-payment thereof 1. A Divorce is a Sententence pronounced by an Ecclesiastical Judge whereby a Man and Woman formerly Married to each other are separated and parted The word Divortium or Repudium is often taken promiscuously both for a Total and Perpetual Divorce à vinculo Matrimonii as also for a Partial and Temporal Divorce or Separation à Cohabitatione vel à thoro mensa The causes of this Divorce whereof some are precedent others subsequent to the Marriage are many in the Law Thomas Aquinas reckons up no less than a dozen of them and thinks he hath Poetically compriz'd them all in four Verses viz. Error Conditio Votum Cognitio Crimen Cultus Disparitas Vis. Ordo Ligamen Honestas Si sis Affinis Si forte Coire nequibis Haec Socianda vetant Connubia Facta retractant But the Causes of Divorce in the Law as now commonly practicable may be reduced to these few 1. The Levitical Degrees within which it is prohibited to Marry 2. Precontract And so if a Man Marry one precontracted and have Issue by her it is the Fathers Child until there be a Divorce upon the precontract and then it is Nullius Filius a Bastard 3. Impuberty or Minority And so if two be Married infra annos nubiles and after full age are Divorced for the same the Woman may bring an Assize against the Man for Land given her in Frank-marriage which proves that the Divorce is by that Law from the very Bond of Matrimony 4. Frigidity in the Man or Impotency in the Woman termed Arctitudo in the Law but the word Impotency is promiscuously used in both Sexes for it is said that if after a Man be Divorced for Impotency he take another Wife and have Children by her these shall not be Bastards because a Man may be habilis inhabilis diversis temporibus But in this Case the Civil Law hath made other provision for that Law in causa Frigiditatis requires three years Cohibitation for Trial of the Disability before it doth upon other legal evidence and proof conclude any Married persons either Frigid or Impotent Indeed the Canon Law expects present proof and in case of such Impotency or Frigidity not Accidental but Natural and Incurable concludes that the Matrimony was never a Matrimony The evidence of which Disability depends on the Oaths of able Physicians as also of aged and grave Matrons experienced in such affairs nor is it to be alledged till after a Triennial experience of each other post Matrimonium Consummatum and is a just cause of Divorce for that it frustrates one of the chief ends of Marriage viz. Procreation of Issue if it be sufficiently proved by Inspection of the Body Triennial Cohabitation and the Oaths aforesaid Consil Matrim To. 2. Consil 8. nu 1. And in Cases doubtful whether it did precede the Marriage or not the Law will presume it to antecede the Marriage and consequently nulls it in case it be Natural otherwise both as to the presumption and operation in case it be only Accidental Sanch. lib. 7. disp 103. nu 4. And where the Impotency doth sufficiently Constare to be Perpetual by the Oaths aforesaid upon Inspection there the Triennial probation ceases Vt cum Glossae cap. Fraternitatis De Frigidis Maleficiis Panor nu 11. Pope Sixtus 5 th in his Bull An. 1587. declared that Matrimonia cum spadonibus vel eunychis prorsus eviratis seu utroque testiculo carentibus cum quibuslibet Mulierihus seu defectum praedictum ignorantibus seu scientibus esse semperque fuisse irrita Antonini â—â—ana resolutiones morales Tract 4. Miscelan resol 75. p. 190. 2. There are also other seeming causes of Divorce than what are forementtoned for the Civil and Canon Law do allow of Divorce after a long absence but are not agreed touching the Time of that Absence for in one place it is after Two years Absence in another after Three years in another after Four Cod. lib. 5. tit 1. l. 2. post biennium tit 27. post tres an l. 27. post Quatuor an others hold that the Civil Law requires Five years Absence before there may be a Divorce on that account In the Council of Lateran a Sentence was allowed by the whole Council which was given by a Bishop pronouncing a Divorce for a Woman complaining that her Husband had been absent Ten years giving also leave to the Woman to Marry again In Concil later par 50. cap. 23. But the truth is no absence be it for any time whatever doth properly cause a Divorce in Law Indeed Seven years Absence without any tidings or intelligence of or from the Absent Party will so far operate in Law towards what is equivalent to a Divorce as to indempnifie the Woman from the penalty of Polygamy if in that case she Marry again Also the Canon Law hath decreed that if the Wife refuse to dwell with her Christian Husband he may lawfully leave her Causa 28. q. 1. c. 4. And some of the Imperial Laws allow Homicide Sacriledge Theft Man-stealing c. for
causes of Divorce Cod. lib. 5. tit 17. l. 8. But the Canon Law decrees otherwise In the time of Ed. 1. William de Chadworth was Divorced because he carnally knew the Daughter of his Wife before he Married her Mother The Stat. of 1 Jac. cap. 11. is the first Act of Parliament that was made against Polygamy Polygamia est plurium simul virorum uxorumve connubium The difference between Bigamy or Trigamy c. and Polygamy is Quia Begamus seu Trigamus c. est qui diversis temporibus successive duas seu tres c. uxores habuit Polygamus qui duas vel plures simul duxit uxores And if the Man be above the Age of fourteen which is his Age of Consent and the Woman above the Age of twelve which is her Age of Consent though they be within the Age of twenty one yet they are within the danger of the Stat. of 1 Jac. cap. 11. Co. Inst Par. 3. Cap. 27. vid. Instit par 1. Sect. 104. 3. This matter of Divorce hath often ministred occasion for high debates and altercations touching second Marriages As whether a Divorce by reason of Adultery in either of the Married Parties doth so dissolve the Marriage à vinculo as that it may be lawful for the Innocent Party to Marry again during the others life By the 107 th Canon It is provided that in all Sentences for Divorce security be given and Bonds taken for not Marrying during each others life By enjoyning such security to be given and such Bonds to be taken This seems to be a Penal Canon viz. pecuniarily Penal whoever therefore breaks the Law incurrs the penalty and whoever suffers the penalty doth answer and satisfie the Law which before he had infring'd a penalty expressed or implied provided for in and annexed unto a Law that is in it self prohibitory seems to create some qualification of that legal prohibition Prohibitio vim suam exercere potest per poenam vel expressam vel arbitrariam Et hoc genus Leges Imperfectas vocat Vlpianus quae fieri quid vetant sed factum non rescindunt So Grotius Grot. de jure Bel. Pacis lib. 2. cap. 5. Sect. 16. But to speak a little nigher to the point in hand it is Grotius again in the same place Si Lex humana conjugia inter certas personas contrahi prohibeat non ideo sequitur irritum fore Matrimonium si re ipsa contrabatur sunt enim diversa prohibere irritum quid facere The Laws whether Ecclesiastical or Temporal are not of any private interpretation yet to speak herein only hypothetically if this be interpretative as a penal Canon by vertue of the said Security and Bond then apposit and observable is that which Grotius hath in another place in Casu Legis Paenalis his words are these viz. Rex qui est Auctor Legis ubi Regni ipsius personam auctoritatem sustinet qua talis est potest legem etiam totam tollere quia Legis humanae natura est ut à voluntate humana pendeat non in Origine tantum sed in duratione Sicut autem totam Legem tollere potest ita vinculum ejus circa personam aut factum singulare manente de caetero lege Dei ipsius exemplo Qui Lactantio teste legem cum poneret non utique ademit sibi omnem potestatem sed habet ignoscendi licentiam Imperatori inquit Augustinus Licet revocare sententiam Reum mortis absolvere ipsi ignoscere Causam explicat Quia non est Subjectus Legibus qui habet in potestate Leges ferre Grot. ibid. de Paenis cap. 20. Sect. 24. How farr the power of Princes may extend it self in this matter is not before us But clear it is that all such as acknowledge the Regal Supremacy will withall confess that his Majesty hath more right to dispence with Canons within his own Dominions ex plenitudine potestatis Regalis than was here formerly exercised ex usurpatione potestatis Papalis In all Laws that are both Prohibitory and Penal as they are of the more force by reason of their Prohibitory quality so they seem to abate of that force by reason of the annexed penalty for he that suffers the penalty satisfies the Law though he transgress the Command The Statute of primo Jacobi hath a Proviso or exception to second Marriages by persons legally Divorced no Caitons or Constitutions prevail or are executable in repugnancy to the Kings Prerogative or to the Laws or Statutes of this Realm That Statute of primo Jacobi prohibiting second Marriages during the Life of each other doth not only not extend to persons legally Divorced but as to such it is with an exception limitation or proviso as aforesaid Sir Ed. Coke taking notice hereof in Porters Case reports that that Statute extends only to persons which are Divorced by Sentence in the Spiritual Court And that distinction of Total and Partial Divorce Or that vel à vinculo vel à Mensa Thoro will not it seems satisfie all Judgments some alledging that ubi lex non distinguit nec nos distinguere debemus applying that Rule ad Evangelium also and thence will not be perswaded but that the innocent party in Causa Divortii ob Adulterium may Marry again altera parte existente because though they know it to be otherwise by Text Canonical yet know not where to find it so by Text Scriptural and specially because they find a Proviso in the said Statute of primo Jacobi that the parties Divorced by sentence if he take another Wife or she take another Husband shall not be within the danger of the Statute And that this extends to every manner of Sentence of Divorce and not to any particular cause of Divorce Cajetan though of the Roman Church yet on the 19 th of Matthew saith Intelligo ex hac Domini Jesu Christi lege licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris posse aliam ducere and soon after adds Non solum miror sed stupeo quod Christo clare excipiente causam fornicationis torrens Doctorum non admittat illam Mariti libertatem This Question Whether after Divorce for Fornication it be lawful to Mary again during the Lives of the parties Divorced is at large handled by the learned Doctor Hammond in his Treatise of Divorces where he says that Mat. 19. 9. and Mark 10. 6. are two places of such perspicuity one Cause of Divorce allowed the Christians that great Breach of the Conjugal Vow and whosoever Divorces and Marries again save in that one Case punctually named committeth Adultery that as no Paraphrase can make them more Intelligible So there is but one Question that can reasonably be started in them viz. Whether he that puts away his Wife on this one authentick cause be so perfectly freed from the Conjugal Vow and Bands that
l. si neget ff de lib. agnos Sanch. de Matr. lib. 2. Disp 41. nu 51. and afterwards in most Cases of separation not occasioned by Elopement or Adultery as aforesaid nor in case of a total Divorce by reason of some legal impediment whereby the Marriage was Null and void ab initio dict Sanch. Tom. 2. lib. 7. Disp 93. nu 22. This Alimony in strictness of Law is a duty properly due from the Husband to the Wife whilst she cohabits with him for by the Canon Law if without any default of his she does of her own accord depart from him he is not obliged to allow her Alimony during such her wilful deserting of him though she be not charg'd of Adultery c. haec imago 33. q. â— It being a Rule in Law Qui non facit quod debet non recipit quod oportet l. si ea C. de Condit insert l. Julian § affinis ff de acti empt But if she depart by reason of some default in him as because of cruelty or the like in that case he shall be compelled to allow her Alimony for the Law understands her as a dutiful Wife so long as it is attributable only to him and no way imputable to her that she is constrained to seem otherwise arg l. jure civili ff de Cond demonst Lyn. in l. qui in uxorem c. de Neq gest nu 1. D. D. Communiter But if she depart of her own default the Husband is not obliged to allow her Alimony albeit he had a considerable Dowrie with her and on the other side if the Husband be in the fault and she depart from him he is obliged to allow her Alimony though he had nothing with her Jo. Lupus c. pro vestras de Donat. in t vir ux Barbos 2. p. rubr ff solut matr nu 43. And in case it be doubtful through whose default it is that they live asunder the Law in that case concludes that the party that was last in fault is not least in fault l. illud 17 ff de peric commod rei vendit And therefore if the Wife who by her own default did voluntarlly depart from her Husband shall after repent and submitting her self to him shall desire reconciliation and to be admitted to cohabitation with him he then refusing her shall be obliged to allow her Alimony save in the Cases aforesaid Glos c. significasti verb. materiam in side Divort. ubi Host nu 2. verb. restitui Jo. Andr. nu 7. fi D. D. Communiter On the other side if by reason of the cruelty of the Husband the Wife shall blamelesly flie from him and the Husband shall offer sufficient security or caution for his future good behaviour to her her safety and peace with him and the cruelty or ill usage not such but that by such caution the Wifes peace and safety may be undoubtedly secur'd and she notwithstanding refuse to return in such case the Law will not compel him to allow her Alimony Quia ultima ea culpa uxori nocet Ferret concil 34. nu 18. Barbos 2. p. rub ff solut matrim nu 44. 15. By the Civil Law if a Dowry or Marriage-Portion with a Wife be promised and not paid to the Husband he is not obliged to allow her Alimony Gloss Auth. de non eligend secundo Nubentes The reason whereof is because such Portion quasi in pretium datur l. pro oneribus c. de jur Dotium But if by reason of some misfortune her Parents or such as undertook for the Payment thereof do after become insolvant she shall notwithstanding have Alimony even by that Law which in other respects seems somewhat severe in this Point unless you can affect them with Fraud in promising what they knew they could not perform Barbos ff solut Matri nu 71. Or in case two persons lay claim to the same Woman each pretending she is his Wife by Marriage and the one of them move to have her kept under Sequestration till the Case be decised in this case she shall have Alimony pendente lite of that Person at whose motion or instance she is so Sequestred l. si pro lusorio ff de appellat But if the controversie be only between a Man and a Woman touching the validity of a Marriage as whether a Marriage or not in such Case no Alimony is due till some Matrimonial Proof appear or that it doth some way constare de Matrimonio but wherever a Marriage doth appear there Alimony shall be due pendente lite arg l. si neget ff de lib. Agnosc 16. John Owen lived apart from his Wife And upon Petition of the Wife to the Justices of Assize for Maintenance they referr'd it to the Bishop of Bangor who ordered that he should pay to his Wife 10 l. per an which was afterwards confirmed by Decree in the Council of Marches of Wales And because that John Owen disobeyed that Decree and did not pay the 10 l. per an the Council sent a Messenger to apprehend his Body caused his Goods and the profits of his Lands to be Sequestred And Henden prayed a prohibition For that Alimony was not within their Instructions Richardson demanded of him if they could grant Prohibitions if they meddle with a thing which belongs to Ecclesiastical Power where they themselves have Power Harvey was of the same Opinion for this Court should preserve other Courts in order Yelverton said for the Sequestration of the Lands they could not do that Richardson they have not any Power to sell the Goods The Ecclesiastical Court is the proper Court for Alimony and if the Person will not obey they cannot but excommunicate him And by Yelverton when that comes to them from the Bishop to be confirmed they cannot but walk in the Steps of the Bishop and a day was given to shew why a Prohibition should not be granted And so it was ruled 17. Dame Sherley Wife of Sr. Henry Sherley sued in the High Commission Court for Alimony and Hitâ—ham moved for a Prohibition and said that Alimony is not within the Jurisdiction of the High Commission for the Court of High Commission is to try Ardua Regni which are not triable by the Common Law Richardson the Power of the High Commission is not de Arduis Regni but of Heresies and such other things Ecclesiastical and he said that the Court of High Commission had special words in their Commission but not in the Statute of primo and that the Statute de primo had no Prerogative in that And so the Question is if the King may by the Common Law grant such a Commission Hutton said that by the same reason as he may grant such a Commission they may grant Commissions for all other things Yelverton I marvel how that came within their Commission he said that in tempore Jacobi upon a debate before him Sir Edward Cook so fully satisfied the King And this matter
Quean or words to that effect or importing the same Sense in this Case a Prohibition was granted 1 Because no Action lies for that Word Quean 2 For the uncertainty thereof 6. The Defendant said to one Anthony Elcock who was a Suiter to the Plaintiff and with whom there was near an Agreement of Marriage I know Davies Daughter well she did dwel in Cheapside and a Grocer did get her with child and the Plaintff declared that by reason of these Words Elcock refused to take her to Wife Adjudged that the Action would lie at the Common Law and the Suit was not to be in the Spiritual Court for Defamation but at the Common Law for that she is prejudiced in that which should be her Temporal advancement and the ground of the Action is Temporal The truth of the Case was this an Action upon the Case for a Slander was brought by Anne Davies against John Gardiner That whereas there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock the Defendant to the intent to hinder the said Marriage said and published that there was a Grocer in London that did get her with Child and that she had the Child by the said Grocer whereby she lost her Marriage To which the Defendant pleaded Not guilty and was found guilty at the Assizes at Aylesbury to the dammages of Two hundred Marks and now it was alledged in Arrest of Judgment that this matter appeareth to be meerly Spiritual and therefore not determinable at Common Law but to be prosecuted in the Spiritual Court. But per Curiam the Action lies here for a Woman not Married cannot by intendment have so great advancement as by her Marriage whereby she is sure of maintenance for her life or during her Marriage and Dower and other benefits which the Temporal Laws give by reason of her Marriage and therefore by this Slander she is greatly prejudiced in that which is to be her Temporal advancement for which it is reason to give her remedy by way of Action at Common Law As if a Woman keep a Victualling house to which divers of great credit repair whereby she hath her livelyhood and one will say to her Guests that as they respect their Credits they take care how they use such a House for there the Woman is known to be a Bawd whereby the Guests avoid the House to the loss of her Husband shall not she in this Case have an Action at Common Law for such a Slander It is clear that she shall So if one saâ—th that a Woman is a Common Strumpet and that it is a Slander to them to come to her House whereby she loseth the advantage that she was wont to have by her Guests she shall have her Action for this at Common Law So here upon these collateral circumstances whereby it may appear that she hath more prejudice than can be by calling of one Harlot and the like And judgment was given for the Plaintiff 7. Touching Defamation for which Suit is in the Ecclesiastical Court. Resolved the matter must be meer Spiritual and determinable only there for if it concern any matter which is determinable at the Common Law the Ecclesiastical Judge hath not the cognizance thereof 8. Action was for these words Pierce hath taken a false Oath in the Court of Consistory of Exeter It was objected that for matters in the Spiritual Court an Action will not lye And the Stat. of 5 Eliz. of Perjury doth not extend to those Courts but it was resolved that the Action did lye for these words and that the Statute doth extend to such and the like Courts as the Court of Star-chamber c. And the words that he hath taken a false Oath shall be intended actively and shall amount to these words He is forsworn In this Case it was said by Prideoux that these words are Actionable although the Perjury be supposed to be committed in the Spiritual Court for he shall be Excommunicated if he will not appear and he shall do penance in a white sheet which is as great a disgrace as to be set upon the Pillory And it was ruled in an Action upon the Case betwixt Dorrington and Dorrington upon these words Thou art a Bastard that an Action lieth and yet Bastardy is a Spiritual matter and there determinable so for these words Thou art a Pirate an Action lieth and yet Piracy is not punishable by the Common Law but in the Court of Admiralty And these words He hath taken a false Oath do amount to these words He is forsworn Wray conceived that the words are not Actionable for there is a Proviso in the Statute of Eliz. cap. 9. that the said Act shall not extend to any Ecclesiastical Court but that every such Offender shall be and may be punished by such usual and ordinary Laws as heretofore have been and are yet used and frequent in the said Ecclesiastical Court Gaudy upon these words an Action doth not lye for they are not pregnant of any Perjury in the Plaintiff for he may be meer passive in it for if one of the Masters of the Chancery Minister an Oath to any person or any Commissioners c. and the Plaintiff sweareth falsly a Man may say that the Master of the Chancery or the Commissioners have taken a false Oath and yet he is not guilty of falsity And afterwards Mutata Opinione Wray that the Proviso in the said Statute is to this intent such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as was before but the same doth not take away or restrain the Authority of the Common Law but that such an Offence may be here examined c. And as to the latter exception upon these words he hath taken a false Oath it shall be intended Actively and not Passively And if so the Defendant ought to have so pleaded it And afterwards Judgement was given for the Plaintiff 9. Pollard and his Wife brought an Action against Armshaw for these words viz. Thou art a Whore for I. S. Goldsmith hath the use of thy Body and the Cart is too good for thee Per Curiam the Action will not lie for the Common Law cannot define who is a Whore but where if one keep a Victualling House it be said she keeps a house of Bawdry an Action will lie 10. Action upon the Case for words of Defamation Whereas the Plaintiff was a Person of good Fame and always free from Adultery and Fornication c. And after the death of Brian her late Husband was in Communication with one Cowley for a Marriage betwixt them That the Defendant to deprive her of her Fame and to hinder her from the said Marrige spake of the Plaintiff these words viz. she is a Whore and her Children innuendo her Children which she had by the said Brian late her Husband are Frambishes Bastards innuendo one Nicholas Frambish
Court had not any Cognizance of 23. Note upon evidence to the Jury Resolved by the Court that an Action upon the Case for words lies against an Infant of Seventeen years of age For malitia supplet aetatem And it is said at the Common Law that if a Man Libel in the Ecclesiastical Court against one for saying certain words of him which he will maintain in an Action upon the Case at Common Law a Prohibition lies 24. If a Man Libels in the Ecclesiastical Court against one for saying that he is a Witch or the Son of a Witch although no Action lies for that at the Common Law yet no Prohibition shall be granted for peradventure he may have some Spiritual prejudice thereby if he should be the Son of a Witch as that he cannot be a Priest or the like for it seems all the force of the words consists in the last words they being spoken in the disjunctive If a Parson of a Church call A. B. Drunkard upon which A. B. answers thou lyest if the Parson sue A. B. in the Ecclesiastical Court for giving him the lye a Prohibition lies for that the Cause for which he gave him the lye is not Spiritual but depending on a Temporal thing precedent But if a Man call a Minister Knave he may be sued for that in the Ecclesiastical Court and no Prohibition lies If one Man says of another that he will not hear Sermons made by those who have been made Ministers by Bishops he may be sued for that in the Ecclesiastical Court and no Prohibition shall be granted If a Man says of another that he keeps a Bawdy house and is sued for it in the Ecclesiastical Court although he might have an Action at Common Law yet the Ecclesiastical Law hath a concurrent Jurisdiction in this and the words are mixt for which reason no Prohibition lies And if one says of another that he is a Pander he may be sued in the Ecclesiastical Court for that the signification of that word is well known and sounds to a Spiritual Defamation Or if a Man says to another Thou art a Cuckoldly Knave and for that he and his Wife sue him in the Ecclesiastical Court for a Defamation no Prohibition lies for that these words amount to a Spiritual Defamation viz. that his Wife was incontinent in this Case a Prohibition was denied Husband and Wife were Divorced for Adultery à mensa thoro mutua cohabitatione and as one of the Counsel said de omnibus Matrimonialibus obsequiis but the Counsel of the other party denied that and after the Wife sued in the Ecclesiastical Court a Stranger for Defamation and Sentence there given for her and penance enjoyn'd to the party Defendant and costs of Suit assessed for the Plaintiff and afterwards the Defendant appeals and after the Husband of the Wife releases all Actions and that Suit and all appertaining thereunto and the Defendant pleaded that Release and they remitted back the Suit to the inferiour Court again and now Coventry Recorder of London prayed a Prohibition for that notwithstanding the Divorce they continued Husband and Wife and therefore the Release of the Husband should barr the Wife from having Execution of the Sentence and of the Costs 44 El. In this Court between Steevens Administrator of one Steevens and Totte the Case was That after a Divorce for Adultery of the Husband à Mensa Thoro the Woman sued in the Ecclesiastical Court for a Legacy devised to her by the Testator and the Defendant pleaded a Release thereof from the Husband and thereupon a Prohibition was granted and he shew'd that president in Court but the President did not comprehend the Divorce But Doderidge said he well remembred when that Case was argued and the parlance then was about the Divorce Wentworth it seems that no Prohibition shall be granted Hill 7. Jac. in this Court A Suit was commenced in the Ecclesiastical Court by two Church-wardens and the Defendant there pleaded the Release of one of them and thereupon a Prohibition was here granted and after a consultation was granted for that they shall try that having cognizance of the Principal and in this Case the Release is after the appeal and therefore it may not be pleaded upon the appeal for the Judges in the appeal have no power but to examine the former Sentence and not any collateral matter Coventrie I agree the Case of the Church-wardens for that the Release of one is not any Barr in Law for 38. Elâ—z it was here resolved between Methon and Winns that a gift by the Church-wardens without the Assent of the Sidemen or Vestry is void but it is otherwise here for here the Release of the Husband is sufficient to discharge the Execution of that Sentence the which is all that we demand 10. lâ— 3. such Divorce is not any Barr of Dower The Court seemed to incline that no Prohibition should be granted for that the Wife in such Case may be sued alone without the Husband by the Ecclesiastical Law and this is matter meerly Spiritual viz. Defamation and therefore we have nothing to do therewith and the Release of the Husband shall not discharge the Suit of the Wife which is only to restore her to her Credit and Reputation which was impeached by the other and the Costs of Suit is not for any Dammage but meerly for the Charge of the Suit and therefore the Suit being not discharged the Costs shall remain also and this Case is not like the fore-cited Case of Stephens for the thing for which that Suit was was originally a Legacy due to Husband and Wife and therefore there the Release of the Husband was a good discharge but here was no duty in the Husband originally Ergo c. Curia advisare vult In Palmer and Thorps Case it was resolved that Defamation in the Ecclesiastical Court ought to have three Incidents 1 That the matter be meerly Spiritual and determinable in the Ecclesiastical Court as for calling one Heretick Schismatick Advowterer Fornicator 2 It ought to concern matter meerly Spiritual only for if it concern any thing determinable at common Law the Ecclesiastical Judge shall not have Cognizance of it See for this 22. E. 4. 20 the Abbot of St. Albons Case 3 Though the thing be meerly Spiritual yet he which is defamed cannot sue there for amends or dammages but the Suit there ought to be for punishment of the offender Pro salute animae For this see Articulis cleri Circumspecte agatis and Fitz. 51 52 53. but yet the Plainshall recover Costs there and there if the Defendant to redeem his Penance agree to pay a certain sum the Party may sue for this there and no Prohibition lies in that Case In a Case of Prohibition between M. and M. in the Ecclesiastical Court the Case was a Suit was there for Defamation by the Wife of the
the Presentees Obligation to make a Resignation within Three months after the Patron so please may amount to Simony within the Statute of 21 Eliz. cap. 16. 19. A corrupt Contract for an Advowson may make the subsequent incumbent Simoniacal 20. To plead a Simoniacal Contract against a Bond it not so appearing is no admissable Plea 21. Masters of Chancery why so called and what they were anciently 22. Prihibition to the High Commissioners that would have put a Parson to his Oath touching Simony 23. In what Cases by reason of Simony the Patron may present after Six months and the Church said to be full as to one not to another 24. The injunction of King Ed. 6. against Simony 25. The form of the Oath of Simony 26. A Simoniacal Contract a good plea in Barr of Tithes 27. A further description in Law of the difference between Simoniacus and Simoniace Promotus 28. The Simoniace Promotus though ignorant of the Simony yet is deprivable in the Ecclesiastical Court 29. A Simoniacal Contract to which neither the Incumbent nor the Patron are privy may yet be Simony within the Statute of 31 Eliz. 30. Simony in it's utmost latitude is properly cognizable in the Ecclesiastical Court 31. Simony worse than Felony A Bond or Obligation good though entred into upon a Simoniacal Contract 32. Whether a Parson outsed for Simony may be after admitted to the same Benefice by the Kings presentation 33. A Person Simoniace promotus and ousted is by the express words of the Statute disabled to accept the same Benefice 34. Where Simony is pleaded in Barr of Tithes the Ecclesiastical Court shall take cognizance and no Prohibition lies 35. Whether the Father may buy the next avoidance and present his Son no Simony to buy an Advowson 36. To procure a Man in consideration of Marriage to be presented to a Benefice is Simony 37. Four observations on the Statute of 31 Eliz. cap. 6. by the Lord Coke 38. The extent of the words Present or Collate in the said Statute also the diversity in Law between a Presentation made by a Rightful Patron and an Usurper 39. What punishment by the Canon Law in case of Simony and the strange conceit of Rebuffus touching the same 40. The reasons why it hath its denomination from Simon Magus how many ways it may be committed according to the Canon Law 1. SIMONY from Simon Magus as Thomas Aquinas and others conceive Tho. Aquin. 20. 2. ae q. 100. art 1. 40. is according to Panormitan's definition thereof studiosa voluntas emendi vel vendendi aliquid Spirituale vel Spirituali annexum opere subsecuto Panor c. Nemo extra c. Or it may be described thus viz. Simony is when any person is presented or collated to any Benefice with Cure of Souls Dignity Prebend or Living Ecclesiastical c. or hath any such given or bestowed on him for or in respect of any Sum of Money reward payment gift profit or benefit directly or indirectly or for or by reason of any promise agreement grant bond covenant or other assurance for any Sum of Money reward payment gift profit or benefit whatsoever directly or indirectly or for or in respect of any such corrupt cause or consideration and every Presentation Collation and gift as also every Admission Investure and Induction thereupon is by the Statute utterly void and whereby the King his Heirs and Successors for that one turn only shall present collate c. And every person so giving or taking any such Sum of Money c. or taking or making any such promise c. doth forfeit and lose the double value of one years profit of every such Benefice Moreover the person so corruptly taking any such Benefice is thereupon and from thenceforth adjudged a person disabled in Law to hold and enjoy the same Benefice The like penalty of the said double value doth he incurr who for any Sum of Money reward c. directly or indirectly other than the Lawful Fees or for or by reason of any promise c. doth admit institute install induct any person to or in any Benefice with Cure c. Likewise if any Incumbent of any such Benefice shall corruptly resign or exchange the same or for or in respect thereof shall corruptly take directly or indirectly any pension sum of money or benefit whatever in such case both the giver and taker corruptly as aforesaid shall forfeit double the value of the sum so given taken or had whereof the one Moiety to the King c. the other to him that shall sue for the same in any Court of Record In which Statute of 31 Eliz. there is a Proviso that the censures Ecclesiastical shall not be restrained by any of the premises therein contained 2. They that Simoniacally buy Ecclesiastical Livings are compared to Simon Magus and they that sell them to Gehazi the Servant of Elisha if a person be possest of an Ecclesiastical Living by such Simony as whereunto he was not privy be is said to be in only Simoniace but if he be in any corrupt and Simoniacal Contract to which himself is a party and was privy and consenting thereunto in that case he is Simonaicus both which are inhibited by the Canons Ecclesiastical or Provincial Constitutions as also are the said corrupt and Simonaical selling as well as buying Ecclesiastical Livings Lindw e. Nulli liceat Ecclesiam c. Quia plerunq and that under penalties greater than the Temporal Laws did then or now will allow of And although by Simony in the vulgar acceptation of the word is commonly understood such corrupt Contract for Ecclesiastical Livings as aforesaid yet it hath a more extensive signification and that is a more proper sense which is by corrupt Ordinations of Ministers or for undue Licences to Preach for prevention whereof it is provided in the Statute aforesaid that if any person shall receive or take any Money Fee Reward or any other profit directly or indirectly or any Promise Agreement Covenant Bond or other assurance thereof Lawful Fees excepted for or to procure the Ordaining or Making of any Minister c. Or giving any Order and License to Preach shall forfeit Forty shillings and the Minister so made Ten pound beside the loss of any Benefice Living or other Ecclesiastical promotion after Induction that any such Minister shall within Seven years next after such corrupt entring into the Ministry accept and take the one half of which Forfeitures do go to the King c. the other to the Informer c. And the Patron in that case may present c. as if the party so inducted were naturally dead 3. The forfeiture of the double value of one years profit of the Church by way of penalty as is beforementioned is not to be computed only according to the valuation in the Kings Books in the First-fruit Office but according to the just and full annual value of the
may be discerned Whether the Pope may be Simoniacal Q. Whether it be Simony to give money for the Sacrament upon a Death-Bed Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal Whether it be Simony in Ecclesiasticks to take money for Sermons or Theological Doctrines Whether it be Simony to resign a Benefice reserving a Pension out of it Whether it be Simony to resign or bestow a benefices upon Trust or Confidence With diverse other such Questions in the Canon Law relating to this Subject the Solutions whereof are not of any moment to us who are out of the Pope's Diocess CHAP. XL. Of Blasphemy and Heresie 1. What Blasphemy is and whence so called 2. The several punishments inflicted on Blasphemers 3. How may ways Blasphemy may be 4. What Heresie is a Conjectural derivation of that word Heresie it is Threefold 5. What shall he accounted Heresie what the Lollards of old were and why so called 6. In whom the Jurisdiction of Heresie properly resides 7. A Heretick convicted and so persisting whether according to Law combustable The reason of that severe Law Heresie is Lepra animae 8. An Alphabetical black Catalogue of Hereticks their Errors Heresies and Blasphemies and the times wherein they pester'd the World 9. A Catalogue of Jewish Hereticks but not in any Alphabetical manner as the former 1. BLASPHEMIA 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod laedat famam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is as it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to hurt anothers same or reputation Suidas interpreteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 one who injureth God with contumelious words which is when men detract from God the honour due unto him or attribute any evil to him Blasphemare est tacite vel expresse verbo vel scripto contra deum aliquid contumeliosum dicere Navar. cap. 12. nu 81. Blasphemia est injuriosa in deum locutio vel contumelia in deum verbo irrogata Less lib. 2. de Blasph This is cognizable in the Ecclesiastical Jurisdiction and by the 109. Canon of the Ecclesiastical Constitutions of the Church of England is among other notorious Crimes to be certified into Ecclesiastical Courts by way of presentment in order to punishment according to Law 2. This Crime of Blasphemy was so odious to the Emperor Justinian that he ordained that the Blasphemer should undergo ultimum supplicium be punished by death for he made it capital Auth. ut non Luxur Coll. 7. By the Ecclesiastical Laws of Keneth King of Scots An. 840. It is provided that he that Blasphemeth shall have his Tongue cut out Blasphemy is speaking Treason against the Heavenly Majesty the belching out of exercrable words against God whereby the Deity is reproached Baldus says that Blasphemy is a kind of Heresie Bald. in L. Qui accusationem C. Qui Accus non posse for which a Lay-man is Anathematized by the Church of God and a Clerk deposed from all Ecclesiastical Orders Can. si quis per capillum 22. q. 1. The Canon Law seems not severe enough in the punishment of this Crime probably for that they of the Roman Church do hold that there is a Blasphemy against Saints and Blasphemia Dei vel sanctorum hath but one and the same punishment with them and that is a solemn and publick penance if the Blasphemy were publickly committed Extra de Maledict c. statuimus And that the World may know how they abominate this sin of Blasphemy they put the Question and demand whether any Priest inferiour to a Bishop can absolve a man from this sin for answer they distinguish and say that if the Blasphemy be publick and notorious it cannot be absolved but by a Bishop but if it were only private and occult non in platea nec in camera multis audientibus then every Priest may absolve it Ant. de pae re si Episcopus lib. 6. Steph. de Gaeta Repet in c. ad Limina 30. q. 1. nu 139. Aquinas reckons it among the Mortal sins 3. Lindwood in his Provincials says that that is Blasphemy quae dicitur irreligiosa reprehensio detractio vel vituperatio but says he to speak properly and strictly Blasphemare est Deo injuriam irrogare which may be done three several ways 1 Aliquid attribuendo quod deo non convenit 2. Ab ea removendo quod deo convenit 3. Creaturae attribuendo illud quod est proprium deo Lindw de Offic. Archipr c. 1. verb. Blasphemia In the Primitive times this sin was punished by a delivering the Offender over unto Satan which was an Ecclesiastical censure by the Greater Excommunication whereby the Offender became unto others as an Heathen and a Publican Mat. 18. 17. and whereby he is dissiranchised of all the Priviledges of the Church 4. Touching Heresie there are various conceptions as to the derivation of that word some are of opinion that the word comes from Error and rectus and that from thence comes Haereticus that is Errans à Recto sive Rectitudine Fidei Catholicae l. 2. in sin C. de Haeretic Others will have the word Heresis to be from heriscor that is divido and thence Heresie to be Divisio ab unitate Fidei Azo Sum. C. eod tit Others will have it to be from haereo Error thence Haeresis quasi adhaesio Erroris and Haereticus quasi adhaerens Errori for Error of it self doth not make an Heretick but adhering to an Error doth Lindw de Haeret. c. 1. And others there are who do conceive that the word Haeresis dicitur ab Electione because an Heretick doth chuse to himself that Opinion which he thinks is best for himself And he that inclines to this Opinion seems to be least in an Error for Haeresis is from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Optio vel electio secta ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eligo Heresie is an Opinion repugnant to the orthodox Doctrine of the Christian Faith obstinately maintain'd and persisted in by such as profess the Name of Christ that Heresie which is commonly called Haeresis univorsa or Heresie in sensu largo is threefold and doth consist either in a mans heart or in his mouth or in his works Under the first of these are comprized all such as are Christians only by Name but not so in truth and in deed under the second are comprehended all vain Swearers Covenant-breakers and indevout approachers to God in his Worship under the third are contained all Hypocrites whose counterfeit devotion without any sincerity in the heart consists only in the simulation of an external work all these are by Lindwood understood in a large sense as Hereticks Lindw de Offic. Archipr c. 1 glos in ver Haeresis But these are not the Hereticks here meant or intended nor indeed are they Hereticks in any proper sense whereby we commonly understand such as Hereticks who maintain and persist in any Opinion contrary to the True Orthodox
Catholick Faith or any of the Articles thereof grounded on the word of God 5. By a Proviso in the Act of 1 Eliz. c. 1. no matter or cause shall be adjudged Heresie but such only as hath been so adjudged by the Authority of the Canonical Scriptures and by the first four General Councils or by any other General Council wherein the same was declared Heresie by the express and plain words of the Canonical Scripture or such as shall hereafter be determined to be Heresie by Parliament with the assent of the Clergy in their Convocation as appears by the said Statute the occasion of the making whereof was as suppos'd by reason of an Indictment against certain persons called Lollards upon the Statute of 2 H. 4. c. 15. Whose Opinions were 1. That it was not meritorious to go in Pilgrimage to St. Thomas nor to St. Mary of Walsingham Nor 2 To adore the Image of a Crucifix or of Saints Nor 3 To confess sins to a Priest but to God onley c. 6. Sir Ed. Coke in the third part of his Institutes cap. 5. doth assert that both by the Books at Common Law and by History it doth appear that an Heretick may be convicted before the Archbishop and other Bishops and other the Clergy at a General Synod or Convocation Bract. Lib. 3. fo 123 124. in Concil Oxon. Newburgh l. 2. c. 13. 6 H. 3. Stow. Hol. 203. 2 H. 4. Rot. Parl. nu 29. Sautries Case F. N. B. 269. 2. 1 El. c. 1. And the Bishop of every Diocess may convict any for Heresie and so might have done before the Statute of 2 H. 4. c. 15. For the Diocesan hath Jurisdiction of Heresie and so it was practised in all Q. Elizabeths Reign and accordingly it was resolved by all the Justices in the the Case of Legate the Heretick And that upon a conviction before the Ordinary of Heresie the Writ de Haeretico comburendo did lye Without the aid of the Act of 2 H. 4. c. 15. it seems the Diocesan could Imprison no person accused of Heresie but was to proceed against him by the censures of the Church And now says the Lord Coke in the forecited place In as much as not only the said Act of 2 H. 4. but also that of the 25 H. 8. c. 14. are repealed the Diocesan cannot Imprison any person accused of Heresie but must proceed against him as he might have done before these Statutes by the censures of the Church as it appears by the said Act of 2 H. 4. c. 15. according to Sir Ed. Coke in that place aforesaid where he also saith that no person at this day can be indicted or impeached of Heresie before any Temporal Judge or other that hath Temporal Jurisdiction But every Archbishop of this Realm may cite any person dwelling in any Bishops Diocess within his Province for causes of Hersie if the Bishop or other immediate Ordinary thereunto consent or if that the same Bishop or other immediate Ordinary or Judge do not his duty in punishing the same 7. Again Sir Ed. Coke in the forementioned place affirms that it appears by Bracton Britton Fleta Stanford and all the Books of the Common Law that he who is duly convicted of Heresie shall be burnt to death Mir. c. 4. de Majesty Bract. ubi sup Britt c. 9. Fleta l. 1. c. 35. Reg. F. N. B. 269. But the Ecclesiastical Judge cannot as he says at this day commit the person that is convict of Heresie to the Sheriff albeit he be present to be burnt but must have the Kings Writ De Haeretieo Comburendo according to the Common Law F. N. B. 269. Rot. Par. 2 H. 4. nu 29. Sautries Case Bre. de haeret Combur per Reg. Concil in Parliam The reason Sir Ed. Coke gives wherefore Heresie is so extremely and fearfully punish'd is for that Gravius est aeternam quam Temporalem Laedere Majestatem And Haeresis est lepra animae The party duly convicted of Heresie may recall and abjure his Opinion and thereby save his life but a relapse is fatal And if the Heretick will not says he after conviction abjure he may by force of the said Writ be burnt without abjuration 2 H. 4 Rot. Parl. N. 24. A Writ was issued by the advice of the Lords Temporal in Parliament to the Sheriffs of London and subscribed per ipsum regem concilium in Parliamento by which the Sheriffs were commanded to burn William Sautre who had been before condemned for a relapsed Heretick by the Archbishop of Canterbury Apostolicae sedis Legatum and other Suffragans and all the Clergy of that Province in Concilio suo Provinciali Congregat juris ordine Note 1 Eliz. cap. 1. Proviso that such as have Jurisdiction by Letters Patents shall not have power to Judge Heresie but in such Cases as have been before adjudged c. or such as shall hereafter be ordered judged and determined to be Heresie by the High Court of Parliament of this Realm with the assent of the Clergy in their Convocation as aforesaid Before a man shall be adjudged an Heretick he ought to be convicted by the Provincial Synod for the Common Law doth not take notice what is heresie If an Heretick convict shall after abjuration relapse into the same or any other Heresie and thereof be convict again the Writ De Hoeretico Comburendo may be directed to the Sheriff after the party is delivered by the Clergy unto the secular power And by the Statute of 2 H. 4. c. 15. Every Bishop in his own Diocess might as aforesaid convict a man of Heresie and upon another conviction after abjuration might by the Sheriff proceed unto comburation But that Statute is repealed by the Statute of 25 H. 8. c. 14. vid. co lib. 12. in a Case of Heresie Note 2 Ma. tit Heresie Brook per omnes Justiciarios Baker Hare The Archbishop in his Province in the Convocation may and doth use to convict Heresie by the Common Law and then to put them convicted into Lay-hands and then by the Writ De Haeretico Comburendo they were burnt but because it was troublesome to call a Convocation It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his Diocess might convict Hereticks And if the Sheriff was present he might deliver such to be burnt without the Writ aforesaid but if the Sheriff were absent or he were to be burnt in another County then the said Writ ought to be had who are Hereticks vid. 11. H. 7. Book of Entries fo 319. vid. Doctor and Stu. lib. 2. cap. 29. Cosin 48. 2. 1 2. P. M cap. 6. Also 3 F. N. B. fo 269. And the Writ in the Register proves this directly 4 Bracton l. 3. cap. 9. fo 123 124. And it is also true that every Ordinary may convent any Heretick or Schismatick before him pro salute animae and may degrade him
3. Cistercians discharged of Tithes p. 401. Their Priviledge in respect of Synodals p. 72. s 9. Citation whether it may issue originally out of the Archbishops Consistory to any not inhabiting within his Diocess or Peculiar without License first obtain'd from the Diocesan p. 20. sect 12. p. soi s 3. p. 105. s 6. City what properly p. 15. s 3. Clay whether Tithable p. 392. Clergy whence so called p. 61. s 1. Margent What their Priviledges p. 193 c. s 18. Clerico capto per Statututum Mercatorum what that Writ imports p. 648. s 12. Clerico convicto commisso Goalae in delectu Ordinarii deliberando what that Writ signifies p. ibid. s 13. Clerico infra Sacros Ordines constituto non eligendo in Officium what the use and end of that Writ p. ibid. sect 11. p. 652. s 26. Clothes Fulled in a Fulling-Mill whether Tithable p. 392. Coals whether Tithable p. ibid. Coat-Armour in a Church whether Action lies against such as pull it down and for whom p. 139. sect 5. p. 150. s 22. p. 154. s 35. p 156. s 38. p. 157. s 42. Collation what p. 252. s 1. How it differs from Presentation and Institution ibid. It is only in Right of the Patron p. 254. s 3. Commendam what p. 230 231. sect 1. Threefold p. ibid. p. 232. s 3. The Law touching Commendams p. 232. sect 4 c. Commissary or Commissarus Foraneus what p. 81. Sect. 1. p. 83. S. 5. and p. 89. Sect. 15. Whether the Grant of a Commissarie's place or the reveâ—â—an thereof by a Bishop shall bind his Successors p. 90 91. Sect. 17 8. Whether the Office of a Commissary may be granted to a Lay-person p. 90 91. Sect. 18. p. 89. Sect. 15. Common of Estovers whether Tithable p. 392. Commposition in reference to Tithes what the Law therein 392 393. For a mans life whether good without Deed p. 372. Sect. 45. For one year or more whether good without Deed p. 377. Sect. 61. Commutation for Penance justifiable by Law p. 89. Sect. 14. Confirmation of Bishops what p. 44. Sect. 3 4. The form thereof ib. and p. 25 26. Conge d'Eslire what p. 29. Sect. 7. p. 42. Sect. 1. The original thereof ibid. Restrictions thereof p. 29. Sect. 8. Consecration of Bishops what p. 46. Sect. 1. The manner how and the ancient solemnity thereof p. 25 26. Sect. 4. It is Character indelebilis p. 49. Sect. 6. The Scandal forged by the Romanists touching Consecration of Bishops in England p. 27. Sect. 4. How Churches were anciently consecrated p. 47 48. Sect. 3 4 5. Consent to the 39 Articles what not good p. 163. Sect. 8. Consistory what p. 83. Sect. 5 6. Whence the word derived and the diverse significations thereof p. 83 84. Sect. 6. Constituted by Willam the Conquerour p. 84. Sect. 7. The Original and Antiquity of Consistories p. ibid. Sect. 7. The difference between Consistorium and Tribunal p. 85 Sect. 9. Consolidation of Churches what and whence so called p. 169. Sect. 1. How distinguished in Law p. 172. Sect. 6. How many ways it may be p. 170. Sect. 2. The reasons or grounds thereof in Law p. 170 Sect. 3. The legal requisites in order thereto p. 171. Sect. 4. Constitutions of Claringdon in order to Church-government p. 100. Sect. 2. Consultation in what Cases it hath been awarded p. 116. Sect. 12. p. 165. Sect. 11. p. 125. Sect. 31. p. 141. Sect. 7. p. 143. Sect. 10. p. 144 Sect. 12. p. 193. Sect. 17. p. 393. Sect. 27. p. 376. Sect. 56. p. 379. Sect. 71. p. 380. Sect. 73. p. 174. Sect. 1. p. 385. 394. 401. 410. 413. 414. 415. 420. 422. p. 426. 431. 435. 450. 453. 459. 463. 464. 506. Where a Consultation is awarded after a Prohibition there no new Prohibition to be on the same Libel p. 116. Sect. 112. Convocation Court what p. 98. Sect. 2. p. 586. Sect. 4. How and by whom convened p. 99. Sect. 2. p. 586. Sect. 4. The Antiquity Power Priviledges and Jurisdiction thereof ibid. Conies Taken in a Warren whether Tithable p. 393. They are not Tithable of Common right p. 375. Sect. 53. Corn The Law in reference to the Tithes thereof p. 393 394 c. A Case in Law touching Corn set out for Tithes and left by the Parson on the Ground p. 362. Sect. 23. Costs of Suit in what Case not given upon failure of proof of a suggestion within the six months p. 378. Sect. 66. Costs obtain'd by Church-wardens in a Suit for Reparations are to the use of the Church p. 144. Sect. 12. Costs of Suit discharged by a Pardon relating before the Taxation thereof p. 116. Sect. 12. Covent anciently a Corporation p. 328. Sect. 4. Councils to whom the power of calling and dissolving them belongs p. 5. Sect. 7. The several kinds thereof p. 584. Sect. 1. Sect. 8. A Catalogue of Councils and Synods p. 592 c. Courts Ecclesiastical the several kinds thereof p. 96. Sect. 1 c. Court of Augmentations what p 333. Sect. 10. Cowes yielding Milk whether Tithes due for their Pasture p. 396. Cranmer when and how he became Archbishop of Canterbury p. 18. Sect. 8. Cuckold whether Action lies for calling one Cuckoldly Knave and where p. 521. Sect 15. p. 520. Sect. 12. Curate whether he may prescribe against the Parson p. 376. Sect. 56. Curtelages whether Tithes are due out of such p. 396. Custome in reference to Tithes how it differs from Prescription p. 396. What Customes not Triable in the Ecclesiastical Courts p. 120 Sect. 17. D. DAmmages who shall have them Treble and in what Case p. 381. Sect. 76. p. 380. Sect. 72. Darrein Presentment what that Writ imports in what Case it lies wherein it differs from a Quare Impedit and when it abates p. 644. Sect. 1. p. 648. Sect. 17. David Vncle to King Arthur succeeded Dubritius in the Archbishoprick of Caerlegion in Wales p. 17. Sect 6. Dean what why so called p. 51. Sect. 1. The several kinds thereof ibid. Sect. 2. and p. 54. Sect. 4. What Dean and Chapter signifies p. 51. Sect. 1. Whether they are a Body Politick Spiritual or Temporal p. 366 367. Sect. 34. Dean of the Arches whence so called p. 103. Sect. 4. Deans Rural what p. 33. Sect. 1. A Lay-man once Dean of Durham p. 367. Sect. 34. Deanary whereof it consists p. 55. Sect. 7. Whether Deanaries are understood as Benefices with Cure p. 200. Sect. 13. p. 286. Sect. 6. Whether a Deanary may be a Dispensation be held in Commendam with a Bishoprick p. 112. Sect. 10. Decimae Majores Minores what and to whom payable p. 398. Decrees and Decretals of the Canon Law when first published here in England p. 129. Sect. 44. Deer whether Tithable p. 375. Sect. 53. and p. 398. Defamation what and where Cognizable p. 515 c. Degradation what p. 309. Sect. 8. May be done two ways ibid. Deprivation what p. 306. Sect. 1.
28. 2 He is an Ecclesiastical Officer and therefore proper to the Ecclesiastical Judge to have Jurisdiction of his Account And a Clerk of a Parish may sue in the Ecclesiastical Court for his Fees which are called Largitiones Charitativae vid. Register fo 52. for he is quodammodo an Officer Spiritual 21 E. 4. 47. But notwithstanding this a Prohibition was granted And Mountague Chief Justice said That a Churchwarden is not an Ecclesiastical Officer but Temporal employed in Ecclesiastical business Quaere Whether in that case the Minister may require him to render an Account and if he refuse Whether the Ecclesiastical Judge may compel him to Account 20. In Trespass by Churchwardens for taking a Bell out of the Church in the time of their Predecessors it was Adjudg'd That the Action did lie whereas it was declared ad damnum ipsorum which shall be supposed ad damnum Parochianorum 21. The Parishioners of the Parish of Al-Hallowes in London did prescribe to chuse their Churchwardens every year and they chose W. their Churchwarden The Parson by virtue of a late Canon that he should have the Election chose C. to be Churchwarden and procured him to be Sworn in the Ecclesiastical Court and a Prohibition was prayed for that it being a Special custome the Canons cannot alter it and if every Parson might have Election of the Churchwardens without the assent of the Parishioners they might be much prejudiced And so it was said That it had been Adjudg'd Pasch 5 Jac. in the case of the Parishioners of Walbrook in London 22. Although as aforesaid the Law doth make Church-wardens a kind of Corporation and enables them by that Name to take moveable Goods and Chattels and to sue and be sued at Law concerning such Goods for the use and benefit of their Parish yet they cannot take an Estate of Lands to them by name of Church-wardens nor can Churchwardens prescribe to have Lands to them and their Successors for they are no Corporation to have Lands but for Goods of the Church only CHAP. XIV Of Consolidation or Vnion of Churches 1. Consolidation what whence so called by whom and in what cases it may be made 2. The several kinds of Consolidation 3. The reasons and grounds thereof in the Law 4. The Requisites of Law in order to a Consolidation 5. How Consolidation is practised here with us and how in France 6. The division or distinction which the Canon Law makes of Consolidation 1. COnsolidation is the uniting combining or consolidating of two Churches or Benefices in one This cannot be done without the consent of the Bishop the Patron and the Incumbent This word thus used in an Ecclesiastical sense takes its denomination from what the Civil Law intends by consolidating the Interest of Possession and Property together which in that Law is called Consolidatio ususfructus proprietatis As when a man having the Usufruct of certain Lands by way of Rent Devise or otherwise doth then and at the same time purchase the Fee or Inheritance thereof hoc casu Consolidatio fieri dicitur Instit de Vsufruct § 3. So that in such Secular concerns according to that Law it properly signifies an Uniting of the possession occupation or profit with the Property of the thing so prepossessed which is sometimes called an Vnity of possession being a Joynt-possession of two Rights in the same person by distinct and several Titles By the Statute of 37 H. 8. cap. 21. it was lawful to make an Union or Consolidation of two Churches in one whereof the value of the one was not above six pounds in the King's Books of the First-Fruits and not above one mile distant from the other And by a late Statute of 17 Car. 2. cap. 3. it may be lawful for the Bishop of the Diocess Mayor Bayliffs c. of any City or Town Corporate and the Patron or Patrons to unite two Churches or Chappels in any such City Town or the Liberties thereof provided the Churches so united exceed not the annual value of an hundred pounds unless the Parishioners esire otherwise See the Statute at large 2. By this Consolidation or Union of Churches one of the Benefices becomes void yea extinct in Law Illud enim quod alteri unitur extinguitur neque amplius per se vacare dicitur DD. in c. cum accessâ—ssent de Constit Iudo Gomez in Regul Cancell Gall. de Trien possess q. 8. Jo. Andr. ad Clem. 1. de Supplen Neglig Praelat Again the Law in express terms says That intereunt Beneficia Vnione quando duo vel plura Beneficia in unum in perpetuum conjunguntur c. Sicut unire de Excess Praelat Of this Consolidation or Union the Law makes a threefold distinction or it may be done three several ways in construction of Law 1 When one and the same person is set or appointed over two Churches Can. temporis qualitas 16. q. 1. c. 1. Ne Sede vacante This with us amounts to a Plurality but not unto a Consolidation or Union 2 When one Church is so united to another that that which is United amittit jus suum eo utitur cui fit unio c. Recolentes § sin de Stat. Monac Lindw de Locat Conduct c. licet glo verb. Appropriationum 3 When Two or more Churches or Benefices are so united together as that the one is not subject to the other in which case Quod melius est retinetur arg c. Medicamentum de poenit dist 1. gl in regu 11. Cancell Innoc. 8. 3. There are several Causes or Reasons in the Law for this Consolidation Incorporation Annexation or Union of Churches and they are chiefly these five 1 An unlawful dividing of those Churches or Ecclesiastical Benefices precedent to their reintegration or intended reconsolidation as when such as had been formerly united were illegally divided Otho Constit Ne Ecclesia una c. cum sit ars gl ib. in ver Reintegrentur 2 For the better Hospitality and that the Rector might thereby be the better enabled to relieve the Poor 25. q. 2. posteaquam § his ita dict gl Otho Const 3 The overnighness of the Churches each to other in point of Scituation insomuch that one Rector may commodiously discharge the Cure of both by reason of the vicinity of the places Arg. extr de Praebend c. Majoribus 4. For or by reason of a want or defect of Parishioners as when one of the Churches is deprived of her people by some incursion of an Enemy or by some mortal Disease or Sickness or the like 11. q. 1. Vnio gloss ubi supra 5. For and by reason of the extream Poverty of one of the Parishes Extr. de eta qua eam te Extr. de Praebend vacant in fin vid. Tholos Syntagm jur lib. 17. cap. 5. nu 7. All which Causes or Reasons of Consolidation are enumerated out of the Canon Law by John dè Aton in his Gloss upon Cardinal