before the Birth of such Child for in that Case he is not reputed a Bastard who cannot inherit Land as Heir to his Father nor can any person inherit Land as Heir to him but one who is Heir of his Body Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother For in that Case notwithstanding such Marriage subsequent to the Birth the Child is reputed a Bastard in the judgment of the Common Law as being born out of Wedlock though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate But if one Marry a Woman and dye before Night without ever bedding her and she after happen to have a Child within possibility of conception in respect of time computable from such Marriage it seems it shall be accounted his Child and Legitimate 9. If a Child be born within the tenth Month computing thirty days to the Month next after a Mans death it shall be reputed his Child as a Mulier but the most natural time is nine Months and ten days computing twenty eight days to the Month which is forty Weeks or any day in the tenth Month may be natural enough Also the Children begotten under a second Marriage after a Lawful divorce from a former are Legitimate and not Bastards And the Child wherewith the Mother is visibly big when she taketh a second Husband shall be reputed the Child of the former Husband though born after Marriage with the second Otherwise if at her second Marriage she were so privlly with Child as that it could not be discerned understand it with this limitation if by possibility of nature it may be so And if a Widow take another Husband within ten days next after the death of her former and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband it shall be reputed the Child not of the former but of the later Husband And in one Thecker and Duncombes Case it was adjudged that a Woman may have a Child in thirty eight Weeks and that by cold and hard usage she may go with Child above forty Weeks which was mention'd by the Court in the Case of one Owen against Jevon in an Action of the Case for saying This is the Whore that my Man C. begat a Bastard on and upon a Verdict for the Plaintiff it was moved in arrest of Judgement that the words are not Actionable because there is no special loss or dammage alledged by the Plaintiff and that in one Lightfoots Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard but it being argued on the other side that the words are Actionable because if they were true the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment Judgement was given for the Plaintiff Nisi 10. The punishment of a Woman that hath a Bastard that may be chargeable to the Parish is the House of Correction for one year by the Statute 11. Although in the judgement of the Common Law a Bastard be reputed quasi nullius Filius insomuch that if being seized of Lands in his own right he dye without Issue of his Body they may Escheat yet even by that Law the Bastard in respect of his Mother is said to be a Son But in respect of the the Father he is said to be nullius Filius and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition it was held that if the Mother dispose of all her Lands holden in Knights Servive to her Bastard-daughter by conveyance in her life-time that the same is out of the Statute of 32 H. 8. because she is but a meer Stranger to the Father because nullius Filia and the said Statute speaks of Lawful generation And in the 39 Ed. 3. 42. in a Praecipe where a Bastard was named Filius J. S. the Writ for that reason did abate For the same reason also it is that in a conveyance by a Father to his Bastard-son natural affection is not a sufficient consideration for that he is a Stranger in Law although he be a Son in Nature And yet it seems if a Grant be made to a Bastard by the Sirname of him who is supposed to beget him it is good if he be known by such Name and yet in truth he is nullius filius And if Husband and Wife divorced causa Praecontractus the Issue hath lost his Sirname for Cognomen Majorum est ex sanguine tractum and the Issue now is Bastard and nullius filius yet because he had once a Lawful Sirname it is a good ground of reputation to make him a reputed Son which is a good Name of purchase And it hath been resolved that a Child begotten by a second Husband living the former of a Woman divorced from the former causa Praecontractus is legitimate and no Bastard But in another case that a Child begotten after Marriage solemniz'd infra annos nubiles and for that cause after divorced is illegitimate and a Bastard 12. A. takes B. to Wife and dies B. after forty Weeks and ten Days is delivered of a Daughter The question is whether the Daughter shall be Heir to her Father or a Bastard The Affirmative prevails and such a Child may be lawful Daughter and Heir to her Father for a Post-natus that is born after the forty Weeks may as well be an Heir as an Ante-natus that is born at the end of seven Months And a Child may be legitimate although it be born the last day of the tenth Month after the conception thereof computing the Months per menses solares non lunares according to the report given upon Oath by the learned Physicians in Alsop's Case If a Man hath Issue born by his Wife forty Weeks and eight Daies after his death as if he dye the three and twentieth of March and the Issue is born the ninth of January next following that Issue shall be held Legitimate for it may be Legitimate by nature and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born p upon evidence at the Barr which concern'd the Heir of one Andrews it was resolved by the Court that Dr. Paddey and Dr. Momford Physicians should being first sworn in that case inform the Court upon their Oaths whether according to Nature such Issue may be Legitimate and they said that the exact time of the birth of an Infant is 280. dayes from the conception viz. nine Months and ten Days after conception accounting it by the Solar months viz. 30. days to each month but it is Natural also if he be born any time of 10 Months viz. in 40 Weeks for by such
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
After Verdict upon Not Guilty found for the Plaintiff it was moved in Arrest of Judgment by Grimston that these words are not Actionable For for calling Whore there lies not any Action and to say that her Children by her former Husband are Frambishes Bastards is repugnant in it self for they cannot be Bastards which were born in the time of her former Husband But all the Court held that the Action well lies For to say of a Widow who is in Comnunication of Marriage with another that she plaid the Whore in her former Husbands time is a great Discredit And to say that her Children are Bastards although in truth they cannot be Bastards in Law yet in Reputation they may be so is cause of loss of her Marriage and that none will marry with her wherefore it was adjudged for the Plaintiff 11. Action upon the Case Whereas he keepeth an Alehouse Licenced by Justices of the Peace that the Defendant to scandalize the Plaintiffs Wife spake these words of her Hang thee Bawd Thou art worse than a Bawd Thou keepest a House worse than a Bawdy house And thou keepest a Whore in thy House to pull out my Throat Upon not guilty pleaded found for the Plaintiff Stone moved in Arrest of Judgment that these words are not Actionable but agreed that for saying One is a Bawd and keeps a Bawdy house Action lies because it is a temporal Offence for which the Common Law inflicts punishment But to call one Bawd without further speaking an Action lies not no more than to call one Whore But it is a Defamation punishable in the Spiritual Court And to say That be keeps a House worse thaâ— a Bawdy house hath not any intendment what he means thereby wherefore the Action lies not And if it be intended that such words should hinder Guests from coming thither being an Alehouse the Husband only ought to have brought the Action And as to that the Court absente Richardson agreed But for the other words they held the Action lies by the Husband and Wife for the slander to his Wife and it is as much as if he had said that she keepeth a Bawdy house wherefore it was adjudged for the Plaintiff 12. A prohibition was prayed bâ—cause A. and his Wife sued in the Ecclesiastical Court for Defamation and speaking these words of the Plaintiff He was a Cuckold and a Wittal which is worse than a Cuckold and that Aylsworth had layen with Ayloffs Wife And for these Defamatory words he sued there and because it was alledged that for these words being but words of Spleen Prohibitions had been usually granted day was thereupon given until this Term to shew cause why a Prohibition should not be granted and divers presidents were shewd that for calling one Cuckold or Whore Prohibitions have been granted But now upon advertisement all the Court agreed that no Prohibition should be granted but that the Ecclesiastical Court should have Jurisdiction thereof For although they agreed that there ought not to have been any Suit for the first words they being too general yet being coupled with a particular shewing that the Wife committed such an Offence with such a particular person they be not now general words of spleen in common and usual discourse and parlance But they held it was a Defamation suable in the Spiritual Court whereupon the Prohibition was denied Brownlow chief Protonotary produced on that occasion several presidents where Prohibitions had been granted to stay Suits for such words viz. Trin. 15. Jac. rot 2260. Purchas vers Birrel for that he was presented at several enquests within his Parish for being a Drunkard and a Barretor And Pasch 6. Jac. rot 397. Prohibition to stay a Suit for calling a Parson Hedge-Priest And Mich. 21. Jac. Barker vers Pasmore She is a Quean and a tainted Quean Prohibition granted 13. H. Prays a Prohibition to stay a Suit in the Spiritual Court of Defamation for speaking these words Thou art a Bawd and I will prove thee a Bawd And because these are words properly dererminable in the Spiritual Court and for which no Action lies at the Common Law a prohibition was denied But for saying Thou keepest a house of Bawdry this being matter determinable at Common Law by Indictment Suit shall not be in the Spiritual Court vid. 27 H. 8. and Co. lib. 4. fo 20. 14. Prohibition was prayed to the Ecclesiastical Court to stay a Suit there for Defamation for these words Thou art a Drunkard or drunken fellow And by the opinion of Croke Jones and Berkley a Prohibition was granted For these words do not concern any Spiritual matter but meerly Temporal and they be but Convitium Temporale and a common phrase of brawling for which there ought not to be a Suit in the Spiritual Court and so it was held in Martin Calthorp's Case in C. B. but Richardson doubted thereof because the Spiritual Court as well as the Temporal may meddle with the punishment of drunkenness so it is not meerly Temporal But he assented to the grant of a Prohibition and the Party may if he will demurr thereto whereupon a Prohibition was granted 15. Prohibition was prayed by Bulstrod for Gobbet to stay a Suit in the Spiritual Court for Defamation in speaking these words He is a Cuckoldly Knave and cited presidents that for saying He is a Knave and a cheating Knave Suit being in the Spiritual Court a Prohibition was granted upon good advisement and the Court said that president is not like to this Case for there was not any offence wherewith the Spiritual Court ought to meddle but in this Case for these words it is properly to be examined and punished there pro reformatione morum for it is a disgrace to the Husband as well as to the Wife because he suffers and connives at it whereupon absente Richardson the Prohibition was denied Again it was moved that this should be granted upon the Statute of 23 H. 8. because he was sued in the Court of the Arches which is in the Archbishops Jurisdiction and the words were spoken at Thistleworth in London Diocess as appeared by the Libel But Jones said that he was informed by Dr. Duck. Chancellor of London that there hath been for long time a composition betwixt the Bishop of London and the Archbishop of Canterbury that if any Suit be begun before the Archbishop it shall be always permitted by the Bishop of London so as it is quasi a general License and so not sued there but with the Bishops assent and for that reason the Archbishop never makes any Visitation in London Diocess And hereupon also the Prohibition was denied 16. Action for that the Defendant had said of and to the Plaintiff being of good same and one who had served as Captain in the Wars haec verba in London Thou art a Pimp averring that in London that word was known to be intended a Bawd and further said that he
was a common Pimp and notorious which he would justifie After Verdict for the Plaintiff Littleton the King's Sollicitor moved in Arrest of Judgment that these words are not Actionable for it is a meer Spiritual Slander as Whore or Heretick and punishable in the Spiritual Court and not at the Common Law and he said that divers times Suits have been in the Spiritual Court for such words and Prohibitions prayed and never granted vid. 27. H. 8. 14. But to say that he keeps a Bawdy house is presentable in the Leet and punishable at the Common Law Ward è Contra because it is spoken of one of an honourable profession viz. a Souldier and trenches on his reputation to be taxed with such a base Offence and he said that such offences have been divers times punished in London by corporal punishment but it was answered that was by Custom and there the calling one Where is Actionable Jones Justice held that the Action lay not and all the Justices agreed that the exposition and averment that Pimp is known to be a Name for a common Bawd is good Croke and Berkley agreed that the words are very slanderous and more than if he had call'd him Adulterer or Whoremonger c. aud may be indicted and punished for it corporally as tending to the breach of the Peace and rule was given that Judgement should be entred c. But was afterwards stayed 17. Suit being in the Ecclesiastical Court for calling a mans Wife Welch Jade and Welch Rogue Sentence being there in the Arches the Defendant appealed to the Court of Audience and in the Appeal mentioned the former words and in the libel was interlined and a Welch Thief and hereupon a Prohibition was prayed and granted unless cause were shewn by such a day to the contrary For it was held clearly that for the word Welch Thief Action lies at the Common Law and they ought not to sue in the Spiritual Court And for the other words it was conceived upon the first Motion they ought not to sue in the Spiritual Court for they be words only of Heat and no Slander But it was afterwards moved and shewn that the said words A Welch Thief were not in the first Libel nor in the Appeal at the time of the Appeal but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court and that upon Examination in that Court it was found to be falsly inserted and ordered to be expunged And that the words Welch Jade were shewn in the Libel to be expounded and so known to be a Welch Whore which being a Spiritual Cause and examinable there it was therefore prayed that no Prohibition should be granted and if it were granted that a Consultation should be awarded And of this Opinion was all the Court that the words and a Welch Thief being unduly interlined and by Authority of the Ecclesiastical Court expunged and in that Court Jade is known and so expounded for a Whore our Law gives Credence to them therein and especially being after two Sentences in the Spiritual Court This Court will not meddle therewith Wherefore Consultation was granted if any Prohibition was issued forth quia improvide And Rule given that if a Prohibition was not passed that none should be granted 18. It was moved for a Prohibition by Harris Serjeant to the Court of Audience because that the Plaintiff was sued there for saying to one Thou art a common Whore and a base Quean and Harris said that a Prohibition had been granted in this Court for saying to one that she was a pimperly Quean And it was the Case of Man against Hucksler And Finch said though the words are not Actionable in our Law yet they are punishable in the Spiritual Court For the word Quean in their Law implies as much as Whore But Hobart said that this word Quean is not a word of any certain Sense and is to all intents and purposes an Individuum Vagum and so incertain 19. In an Action upon the Case that whereas he is Parson of D. and a Preacher the Defendant Slandered him in haec verba Parrett is a lewd Adulterer and hath had two Children by the Wife of I. S. I will cause him to be deprived for it By the Court the Action doth not lie For the Slander is to be punished in the Ecclesiastical Court And so awarded Quod Quer. nil cap. per. bill 20. D. had sued T. in the Ecclesiastical Court for this viz. That whereas she was of good fame and kept a Victualling House in good Order that the said T. had published that D. kept an house of Bawdry T. now brought a Prohibition and by the Court well for D. might have an Action for that at the Common Law especially where she kept a Victualling house as her Trade Note 27. H. 8. 14. And by the Justices that the keeping of a Brothel-house is enquirable at the Leet and so a temporal Offence And so was the opinion of the Court Tr. 7. Car. B. R. Mrs. Holland's Case 21. W. sued L in the Ecclesiastical Court for a Defamation and had Sentence L. appeals and depending the Appeal comes a Pardon which relates to the Offence and pardons it then L. deferrs his Appeal and for that W. had costs taxed him And now L. prayed a Prohibition because he deferr'd his Appeal because of the Pardon which had taken away the Offence And by the Court in that Case after the pardon the inferiour Court cannot tax Costs but it was urged that the superiour Courts might tax Costs upon the desertion of the Appeal which is an Offence after the Pardon But it was answered on the other side that it was in vain to prosecute the Appeal when the Offence it self is pardoned The words were Thou art a Pander to Sr. Hen. Vaughan And there was much debate if they were actionable at Common Law yet it was agreed that a Suit may be brought for them in the Spiritual Court as for calling one Whore Bawd or Drunkard But otherwise by Jones if he had said That he was Drunk for then a Prohibition lies And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas a Prohibition was granted in a Suit for calling one Whoreson And in Weeks Case a Prohibition in a Suit for calling one Knave 22. E. and M. being reputed Church-wardens but they never took any Oath as the Office requires present a Feme Covert upon a common report for Adultery c. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation And when Sentence was ready to be given for them the Church-wardens appeal to the Arches where the presentment was proved but by one Witness they sentenced the Baron and Feme But now Ward Serjeant moved for a Prohibition but it was denied by the Court for they were Plaintiffs first And also it is a Cause which this
and shall recover the Treble value of the Tithes in an Action of Debt for although the Treble value be not given to the Parson or other Proprietor of the Tithes by any express words of the Statute yet forasmuch as he is the party grieved and hath the Right of the Tithes in him the Treble value is given to him For wheresoever a Statute giveth a Forfeiture or penalty against any one who wrongfully detaineth or dispossesseth another of his Right or Interest in that case he that hath the wrong shall have the forfeiture or penalty and shall have his Action at the Common Law for the same or he may Sue in the Ecclesiastical Court for the same But in his Action at Common Law it seems he shall recover no Costs as hath been Adjudged But if the Parson or other Proprietor will sue in the Ecclesiastical Court for the subtraction of the Tithes he shall recover there but the double value of them because in that Court he shall recover the Tithes themselves which is equivalent to the Treble value at the Common Law In another Case where Debt upon the Statute of 2 Ed. 6. was brought for not setting forth of Tithes the Plaintiff shewed That Two parts of the Tithes did appertain to the Rectory and a Third part to the Vicarage and that he had a Lease for years of the Rectory and another Lease of the Vicarage And for not setting forth of the Tithes he demanded the Treble value upon Non Debet it being found for the Plaintiff it was urged in stay of Judgment that he ought to have brought several Actions being grounded upon several Leases as his Title is several But it was Resolved That the Action was well brought in regard he had both Titles in him and the Action is brought upon the wrong because he did not sett out the Tithes Again in Debt for not setting forth of Tithes upon the Statute of 2 Ed. 6. The Case was Corn was growing upon the Glebe-Lands of the Vicar which was discharged of Tithes being in his own use It happened that the Vicar died before the Tithe was severed and his Executors did cut and carry away the Corn and he that had the Parsonage appropriate brought the Action The Counsel of the Defendant prayed the Opinion of the Court whether he might plead Nihil debet But the Court refused to deliver their Opinion in it because it hanged in Suit before them In the Case of Mountford against Sidley it was said That where Tithes are sett out the Parson hath a liberty for a convenient time to come and carry them away And this convenience of Time is triable by a Jury if he exceed this he shall be subject to an Action and then by Judgment of Law he shall be taken to be a Trespasser ab initio Otherwise it shall be of a License in Fact given by the Parson himself And it was holden by the Court if the Corn had continued over long his Remedy had been by Action upon the Case And as a Parson ought to have convenient time to carry away his Tithes so likewise he ought to have for that end free ingress egress and regress to through and from the Land where the Tithes are wherein if he meet with any obstruction he ought to see how he Sues and lays his Action for in a Case where a Parson Libelled for Tithes in the Ecclesiastical Court and set forth That the Tithes were set forth and that the Defendant did hinder him and stop him from carrying them away But because he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought and it was Agreed by all the Justices he ought to have done nor mention the Statute as he ought also to have done a Prohibition in that Case was awarded The Grant of a Tithe for Life to begin at a day to come is not good Yelvert 131. If a man will lett a Lease of his Tithes the Lease must be by Deed and not by word only therefore if a Parson doth Demise his Rectory for years the Tithes will pass inclusive although the Lease be by word only but if the Parson Lease his Tithes alone they will not pass unless the same be by Deed or Writing Yet the Parson may Demise his Tithes to the Owner of the Land for a year by word only as hath been agreed by all the Justices but to a Stranger he cannot Demise them otherwise than by Deed And although Tithes will as aforesaid pass by Contract to the Owner of the Soil yet may the Parson sue the Owner for Tithes in kind in the Spiritual Court and as it hath been holden the Owner by reason of the Contract shall not have a Prohibition In which case the Ower of the Soil may sue the Parson upon the Contract in the Temporal Court and recover as much in Dammages but then in his Pleading he must not declare of a Verbal Contract but must set forth the same to have been made in Writing and so it hath been Adjudged And in the Lord Shandois Case it was holden by the Court That a Suggestion of an Agreement between him and the Parson in consideration of a certain Sum to be yearly paid to the Parson during their Joynt-Lives and his continuing Parson that his Messuage and Lands in the Parish of D. and the Tenants thereof should be discharged from the payment of Tithes thereof shewing that the said yearly Sum was paid accordingly and that notwithstanding the Defendant sued the Plaintiff being his Farmer for Tithes In this Case it was held That this was not a sufficient Surmize to maintain a Prohibition For an Agreement to be discharged from Tithes may be a year by word but to have such an Agreement for life or years cannot be without Deed Likewise in an Ejectione Firme brought of a Lease of Tithes the Plaintiff did not shew that the Lease was by Deed and because Tithes cannot pass without Deed after a Verdict found for the Plaintiff It was Ruled to be ill and Adjudged for the Defendant To conclude In the 19 El. B. R. it was debated whether Tithes were Jure divino or by the Constitution of men only The Judg. were all it seems of Opinion That they were due as well by the Constitution of Kings as by the Law of God And therewith doth Dr. Stu. 166. if the Qu. be de Quota parte For there it is held that the 60 part is due only by mans Law And the Opinion of Gerson the Divine is cited in his Treatise Entituled Regulae Morales where it is said Solutio Decimarum Sacerdotibus est jure Divino quatenus inde sustentur sed quoad hanc quam illam partem assignare aut in alios reditus commutare Positivi juris est And elsewhere Non vocatur portio Curatis Decima pars imo est
external Priesthood in which Power is given by Divine Institution to Consecrate the Eucharist c. In which Decree the Synod doth also condemn those who say all Christians are Priests or have equal Spiritual power which is nothing but to confound the Ecclesiastical Hierarchy which is in an Order as an Army of Souldiers To which Hierarchical Order do belong especially Bishops who are Superiour to Priests Therefore one of the said Anathematisms did reach those who say that there is not an Hierarchy instituted in the Catholick Church by Divine Ordination consisting of Bishops Priests and Ministers The Historian of the aforesaid Council of Trent tells us That the Sixth of the said Eight Anathematisms was much noted in Germany in which an Article of Faith was made of Hierarchy which word and signification thereof says he is Alien not to say contrary to the Holy Scriptures and though it was somewhat Anciently invented yet the Author is not known and in case he were yet says he he is an Hyperbolical Writer not imitated in the use of that word by any of the Ancients and following the style of the Primitive Church it ought says he to be named not Hierarchy but Hierodiaconia or Hierodoulia But Thomas Passius a Canon of Valentia said in that Council That all doubt made of the Ecclesiastical Hierarchy did proceed from gross ignorance of Antiquity it being a thing Notorious that in the Church the People have alway been governed by the Clergy and in the Clergy the Inferiours by the Superiours until all be reduced unto one Universal Rector which is the Pope of Rome and that it was plain that the Hierarchy consisteth in the Ecclesiastical Orders which is nothing but an holy Order of Superiours and Inferiours But Francis Forrier a Dominican of Portugal at the same time said That Hierarchy consisteth in Jurisdiction and the Council of Nice placeth it in that when it speaketh of the Bishop of Rome Alexandria and Antioch and therefore the handling of Hierarchy not to be joyned with that of Order Others were of a Third opinion viz. That Hierarchy was a mixture of both viz. of Order and Jurisdiction also Thus was that Learned Council divided in this high point of Hierarchy that though they all agreed the thing yet they could not agree wherein to fix it whether in Order or in Jurisdiction or in both Notwithstanding it is generally agreed That the Hierarchy of the Catholick Church is proved by the Testimony of all Antiquity and by the continual use of the Church and that it consisteth of Prelates and Ministers who are Ordained by Bishops in whom resides the power of Consecration which may be a sufficient warrant for this digression Which Consecration as it refers to Persons is done per impositionem manuum except as to Virgins for they also by the Pontifical Law are Consecrable Creatures though they be Foolish Virgins yea though they be Polluted Virgins provided it be not per spontaneam voluntariam pollutionem and there be but putativa Virginitas in the case and shall have not only Laureolam Virginitatis but also Velum Consecrationis as they call it Cajetan in Sum. V. Virgin consecrat Less de Just. Jur. lib. 4. c. 2. Dub. 16. alii DD. But where the Consecration refers to Things as Churches Chappels Bells and other things of the like sound there it is done per preces together with other Consecration-ceremonies the Episcopal Order therein concurring so likewise the Consecration of Virgins is per preces together with other Ceremonies used in the Consecration of Virgins Cujus Signum est quod in Pontificali Romano ubi de hac Consecratione agitur non dicatur roganda de aliqua contaminatione sed de vita conscientia carnis integritate ut notat Cajetanus Less ubi sup That which is next in view is some prospect of Deans and Chapters there were it seems in former times certain Deans who usurped an Authority beyond their Dignity or Function and took upon them to exercise Episcopal Jurisdiction These were condemn'd in a Council at Lateran under Pope Alexander by the fifth Canon of that Council in these words viz. Quoniam quidam in quibusdam partibus sub pretio statuuntur qui Decani vocantur pro certa pecuniae quantitate Episcopalem Jurisdictionem exercent praesenti Decreto statuimus ut qui de caetero id praesumpserit Officio suo privetur Episcopus conferendi hoc officium potestatem amittat Chron. Gervas de Temp. H. 2. Anciently likewise there were certain Deans which were called Decani Christianitatis one of which kind appears in an Ancient Record nigh Four hundred years since relating to the Priviledges of the Priory of St. Austins wherein the words to this present purpose sic se habent viz. Super Privilegiis Innocentii Papae 4. hic superius ad mandatum conservatorum ut praetactum est publicatis Thomas Prior Ecclesiae Christi Cant. Guydo Prior S. Gregorii Thomas Decanus Christianitatis ejusdem Civitatis eadem Privilegia inspexisse ad certitudinem futurorum testati sunt Chron W. Thorn de Temp. Ed. 1. An. 1293. Heretofore also Priors have been called Deans so we find Ceolnothus or Chelnothus in the time of King Ethelred and his Brother Alured Dean of Canterbury to have been called Postea Ceolnothus Cantuariensis Ecclesiae Decanus c. ubi cum Decanus esset quem nos Priorem vocamus non modicum videre solebat Conventum And again Egelnothum alias Ceolnothum ejusdem Ecclesiae Christi Decanum vel Praepositum suum Decanum vocabant quem nos post adventum Lanfranci Priorem appellamus Gervas Act. Pontif. Cant. And where we meet with the word Decania as in the History of Ranulphus Bishop of Durham in the Conquerors time written by Simeon the Monk Deconatus is thereby intended it being the Ecclesiastical Dignity of him qui in Majori Ecclesia denis ad minus Canonicis sive Praebendariis ut vocant sub Episcopo praeest but the DECANVS CHRISTIANITATIS aforesaid so called per Antiquiores Anglos is secundum recentiores DECANVS RVRALIS quem Exteri ARCHIPRESBYTERVM VICANVM vocant De quo de Vrbano vid. Duaren de Sacr. Eccl. minist benef lib. 1. cap. 8. A probable conjecture why anciently he might be called Decanus Christianitatis we may ut mihi videtur have from Mr. Selden in Notis ad EADMERUM pag. 208. Christianitas says he ea quae ad Christianitatem pertinent passim apud Eadmerum atque alios illius aevi Scriptores functionem Episcopalem atque Fori sacri actionem administrationem seu Officium Episcopale ut usitatius appellatur denotant Hinc apud nos Fora sacra quibus jure nempe communi subnixis aut Episcopi praesunt aut ii qui eo nomine Episcopos utpote quos provocare licet suscipiunt Curiae Christianitatis etiamnum vocitantur Glossar Hist Angl. Antiq. ver Christianitas vid. plura in
verb. Beneficiati 3. As there are two Foundations of Cathedral Churches in England the Old and the New the New being those which King Hen. 8. upon the suppression of Abbies transformed from Abbot or Prior and Convent to Dean and Chapter So there are two ways or means of Creating these Deans for those of the old Foundation were raised to their Dignity much like Bishops the King first issuing and granting his Congé d'Eslire to the Chapter the Chapter thereupon making their Election the King then yielding his Royal Assent and the Bishop Confirming him and giving his Mandate to install him But those of the New Foundation are by a much shorter course install'd by vertue of the Kings Letters Patents without either Election or Confirmation Deans of the Old Foundation before the suppression of Monasteries arrive to their Dignities much like Bishops But Deans of the New Foundations upon suppression of Abbies or Priories transformed by H. 8. into Dean and Chapter are by a shorter course Installed by vertue of the Kings Lett. Pat. Without Election or Confirmation it was said by Hobart in Briggs Case That a Dean and Chapter are a Body Spiritual and annexed to the Bishop throughout all England Briggs C. in Winch. Rep. The same word is also applied to divers that are the Chief of certain peculiar Churches or Chappels as the Dean of his Majesties Chappel the Dean of the Arches the Dean of St. George's Chappel in Windsor c. Nec Collogia alicui praefecti nec Jurisdictione ulla donati Nomine tamen velut honocis gratia Insignes says the Learned Spelman 4. Each Archbishop and every Bishop hath a Dean and Chapter and whereas it was formerly said That the Civil and Canon Laws do chiefly take notice but of three sorts of Deans it is manifest that there are four sorts of Deans or Deanaries whereof the Laws of this Kingdom do take knowledge The first is a Dean who hath a Chapter consisting of Canons and Prebendaries as aforesaid subordinate to the Bishop as a Council assistant to him in matters Spiritual relating to Religion and in matters Temporal relating to the Temporalties of his Bishoprick The second is a Dean who hath no Chapter Presentative having Cure of Souls he hath a Peculiar and a Court with Ecclesiastical Jurisdiction therein he is not subject to the Visitation of the Ordinary Such is thè Dean of Battel in Sussex a Deanary Founded by William the Canquerour in memory of his Conquest who though he be Presentable to the Bishop by the Patron and admitted to the Deanary by Institution and Induction by the Bishop of Chichester yet is exempt from his Visitation The third is whose Deanary is not Presentitive but Donative nor hath he Cure of Souls but is only by Covenant or Condition he hath a Court and a Peculiar holding Plea of matters Ecclesiastical arising within his Peculiar over divers Parishes Such a Dean constituted by Commission of the Metropolitan is the Dean of the Arches the Dean of Bocking in Essex and divers others The fourth is the Rural Dean aforesaid having no absolute Judicial power in himself but is only by the direction of the Bishop or Archdeacon to order and prepare Ecclesiastical affairs within his Deanary and Precinct the power of these Rural Deans is at this day nigh extinguished by the Office of the Archdeacon and the Bishops Chancellor yet in some parts of this Realm it is still in force 5. Of these Four sorts of Deans the first as was said hath a Chapter being an Ecclesiastical Governour Secular over the Canons and Prebendaries in the Cathedral Church as the Dean of Canterbury St. Pauls c. The Patronge of all which Deanaries is in the Crown and doth not belong to any Subject Also the new Deanaries as was formerly hinted which were translated from Priories and Covents or were after the dissolution of Abbies and Monasteries Founded by King H. 8. or other Kings of this Realm are now Donative and the Deans thereof are by the Kings Letters Patents Installed but the Ancient Deans of Chapters are as Bishops by a Congé d'Eslire and are after Confirmed by the Bishop 6. The Dean end Chapter of Canterbury are during a Vacancy of that Archbishoprick Guardians of the Spiritualties to whom the Stat. of 25 H. 8. of Dispensations giveth power of Dispensation when that See is vacant The Dean and Chapter of any Cathedral make a Corporation Spiritual and at the Common Law challenges are allowed where the Issue concerns a Corporation and they to make the Pannel or where any of their Body are to go on the Jury or any of kin unto them though the Body Corporate be not directly a party to the Suit A Dean and Chapter bringing an Assize a Juror was challenged because he was Brother to one of the Prcbendaries and the challenge for that reason allowed If a Dean take an Obligation to him and his Successors it goes to his Executors which holds true also as to a Bishop Parson Vicar c. 7. A Deanary consists of Two parts viz. Officium Beneficium The Officium hath two parts the one is Dignity and Jurisdiction the other is Administration But some Promotions are meer Administrations as Prebends and Parsons which are not Dignisies because they have not Jurisdiction 11 H. 4. But an Archdeacon hath a Dignity because he hath a Jurisdiction So hath a Dean to whom Anciently according to Lindwood the Canons made their Confessions Et quod Canonici quead euram animarum subsunt Decano Lindw de Poenit. c. 1. gloss in verb. vel Decano in ver Decanum Capitulum Who ought to visit his Chapter 5. E. 3. 7. and if a Probend be made a Dean the Prebendary is void by Cossion 5 E. 2. F. Brieff 800. Also a Dean may make a Substitute as to the matters of his Jurisdiction as for Corrections or Visitations but not as for the other part viz. the Administration for which reason he cannot make a Deputy to Confirm Leases and the like So that in a Deanary Cathedral there seems to be 1 Dignity and Jurisdiction 2. Office and Administration 3. the Behefit or Profits thereof which seems very clear for that a Parson a Prebend or the like hath not Dignity but only the Office or Administration with the Profits but a Dean who hath Administration as others hath also Jurisdiction and Dignity The Law is also the same as to an Archdeacon 11 H. 4. 40. 7 H. 6. 27. 27 H. 6. 5. And a Writ brought against a Dean is good and sufficient without his proper Name because it is of it self a Name of Dignity and that a Deanary is a Dignity appears by 5 E. 3. 9. Breve 800. as aforesaid and it is an Office also for that in Ancient times a Dean took the Confessions of his Prebends as was likewise hinted before Also a Dean may by his Dignity make a Deputy to correct c.
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
exempted out of the Bishop of London's Jurisdiction The Judge of this Court of Arches is styled the Dean of the Arches or the Official of the Arches-Court unto whose Deanary or Officialty to the Archbishop of Canterbury in all matters and causes Spiritual is annexed the Peculiar Jurisdiction of the thirteen Parishes as aforesaid Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal as the superiour Ecclesiastical Consistory through the whole Province of Canterbury yet the Lord Coke says his power to call any person for any Cause out of any part of his Province within the Diocess of any other Bishop except it be upon Appeal is restrained by the Stat. of 23 H. 8. c. 9. Yet his Jurisdiction is Ordinary and extends it self through the whole Province of Canterbury insomuch that upon any Appeal made to him from any Diocess within the said Province he may forthwith without further examination at that time of the Cause issue forth his Citation to be served on the Appealee with his Inhibition to the Judge à quo In Mich. 6 Jac. C. B. there was a Case between Porter and Rochester The Case was this Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tithes growing in B. in the said County of Essex by Porter in the Court of Arches of the Archbishop of Canterbury in London where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes called a Deanary exempt from the Authority of the Bishop of London whereof the Parish of S. Mary de Arcubus is the chief And a great Question was moved Whether in the said Court of Arches holden in London he might cite any dwelling in Essex for subtraction of Tithes growing in Essex or whether he be prohibited by the Statute of 23 H 8. c. 9 Which after debate at Bar by Council and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common Pleas A Prohibition was granted to the high Court of Arches And in this case divers points were resolved by the Court 1 That all Acts of Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civilians and Canonists although the Acts concern Ecclesiastical Jurisdiction 2 Resolved by Coke Chief Justice Warburton Daniel and Foster Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to cite any one out of his own Diocess For Diaecesis dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus Commissa gubernatio unius c. And is derived a Di Duo Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and body of the Act that when the Archbishop sitting in his Exempt peculiar in London cites one dwelling in Essex he cites him out of the Bishop of London's Diocess Therefore out of the Diocess And in the clause of the penalty of 10 l. it is said Out of the Diocess c. where the party dwelleth which agrees with the signification of Diocess before 2. The body of the Act is No person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the person shall be dwelling and if so then à Fortiori the Court of Arches which sits in a Peculiar may not cite others out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth And from the Preamble of the Act the Lord Coke observes and inferrs That the intention of the Act was to reduce the Archbishop to his proper Diocess unless in these five Cases viz. 1 For any Spiritual offence or cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a default in the Ordinary 2 Except it be in Case of Appeal and other lawful cause where the party shall find himself grieved by the Ordinary after the matter there first begun Therefore it ought to be first begun before the Ordinary 3 In case the Bishop or Ordinary c. dare not or will not Convent the party to be sued before him 4 In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the matter or cause of the same Suit 5 In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases only where the Law Civil or Common doth affirm c. The Lord Coke takes notice also of Two Provisoes in that Act which do likewise explain it viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishops Diocess in his Province for matter of Heresie By which says he it appears That for all causes not excepted he is prohibited by the Act. 2 There is a Saving for the Archbishop calling any person out of the Diocess where he shall be dwelling to the probat of any Testament Which Proviso should be vain if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province Wherefore it was concluded That the Archbishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. c 9. to cite any man out of any other Diocess which Act is but a Law declaratory of the Ancient Canons and a true Exposition thereof as appears by the Canon Cap. Romana in Sext. de Appellat c. de Competenti in Sext. And as the Lord Coke observes the Act is so expounded by all the Clergy of England at a Convocation at London An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester That the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not only over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1 Quidam de Latere Dom. Papae mittuntur c. 2 Dativi qui simpliciter in Legatione mittuntur c. 3 Nati seu Nativi qui suarum Ecclesiarum praetextu Legatione funguntur sunt Quatuor viz. Archiepiscopus Cantuariensis Eboracensis Remanensis Pisanis Which Authority Legantine is now taken away and utterly abolished 4. It is supposed that the Judge of this Court was originally styled the Dean of the Arches by reason of his substitution to the Archbishop's Official when
1 Eliz. And it is not within the Statute and although it be within the Commission yet they have not Jurisdiction The words of the Statute are That such Jurisdictions and Priviledges c. as by any Ecclesiastical power have heretofore been or lawfully may be exercised for the Visitation of Ecclesiastical State and Persons and for reformation of the same and for all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities c. These words extend only to men who stir up Dissentions in the Church as Schisimaticks and new-sangled Men who offend in that kind Henden Serjeant The Suit is there for reformation of Manners and before the new amendment of the Commissions Prohibitions were granted if they meddled with Adultery or in Case of Defamations but now by express words they have power of these matters And that matter is punishable by the Commissioners for two Causes 1 There is within the Act of Parliament by the words annexed all Jurisdictions Ecclesiastical c. 2 It gives power to the Commissioners to exercise that And that is meerly Ecclesiastical being only pro reformatione morum c. The King by his Prerogative having Ecclesiastical Jurisdiction may grant Commissions to determine such things 5 Rep. Ecclesiastical Cases fol. 8. And Richardson said The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk But you affirm That all is given to the Commissioners and thereby they should take all power from the Ordinary But by the Court the Commissioners cannot meddle for a stroke in Church-Land nor pro subtractione Decimarum And yet they have express Authority by their Commission for by that course all the Ordinaries in England should be to no purpose And so upon much debate a Prohibition was granted On an Arrest on Christmas-day it was said by Richardson Chief Justice That upon Arresting a man upon Christmas-day going to Church in the Church-yard He who made the Arrest may be censured in the Star-Chamber for such an Offence Quod Nota. It was also said by Richardson that if a man submit himself out of the Diocess to any Suit he can never have a Prohibition because the Suit was not according to the Statute 23 H. 8. commenced within the proper Diocâ—ss as it was Adjudged Quod Nota It the Ecclesiastical Court proceed in a matter that is meer Spiritual and pertinent to their Court according to the Civil Law although their proceedings are against the Rules of the Common Law yet a Prohibition does not lie As if they refuse a single Witness to prove a Will for the cognizance of that belongs to them And Agreed also That if a man makes a Will but appoints no Executor that that is no Will but void But if the Ordinary commits the Administration with that annexed the Legatary to whom any Legacy is devised by such Will may sue the Administrator for their Legacies in the Ecclesiastical Court Note P. 4. Jac. B. R. Peep's Case a Prohibition was denied where they in the Ecclesiastical Court refused a single Witness in proof of payment of a Legacy After Prohibition if the Temporal Judge shall upon sight of the Libel conceive that the Spiritual Court ought to determine the cause he is to award a Consultation And by the Staâ— of 50 E. 3. c. 4. the Ecclesiastical Judge may proceed by vertue of the Consultation once granted notwithstanding any other Prohibition afterwards if the matter in the Libel be not enlarged or changed B. Administrator of A. makes C. his Executor and dies C. is sued in the Ecclesiastical Court to make an Account of the goods of A. the first Intestate And C. now moves for a Prohibition and had it for an Executor shall not be compel'd to an Account But an Administrator shall be compel'd to Account before the Ordinary Resolved by the Court That a Prohibition shall not be awarded to the Admiral or Ecclesiastical Courts after Sentence Also that a Plea was there pleaded and refused which was Triable at Common Law Note A Prohibition was awarded upon the Statute of 23 H. 8. because the party was sued out of the Diocâ—ss And now a Consultation was prayed because the Interiour Court had remitted that Cause to the Arches and their Jurisdiction also yet a Consultation was denied A Suit was in the Ecclesiastical Court and Sentence passed for one with Costs and nine months after the Costs are Assest and Taxed and then comes a Pardon of 21 Jac. which relates before the taxing of the Costs But afterwards the Sentence and that Pardon was pleaded and allowed in discharge of the Costs Then W. who had recovered sues an Appeal and P. brought a Prohibition and well and no Consultation shall be awarded because by the Court that Pardon relating before the Taxation of Cost had discharged them As 5. Rep. 51. Hall's Case B. and Two others sue upon three several Libels in the Ecclesiastical Court and they joyn in a Prohibition And by the Court that is not good But they ought to have had three several Prohibitions and therefore a Consultation was granted Mich. 26 27 Eliz. C. B. If A. Libels against B. for Three things by one Libel B. may have One or Three Prohibitions Note Dyor 171. 13. By the Statute of 25 H. 8. cap. 19. Appeals to Rome being prohibited it is Ordained That for default of Justice in any of the Courts of the Archbishops of this Realm c. it shall be lawful to Appeal to the King in his High Court of Chancery and thereupon a Commission shall be granted c. And by a Proviso towards the end of that Statute an Appeal is granted to the King in Chancery on Sentences in places exempt in such manner as was used before to the See of Rome So that this Court grounded on the said Commission is properly as well as vulgarly called The Court of Delegates for that the Judges thereof are Delegated to fit by virtue of the Kings said Commission under his Great Seal upon an Appeal to him in Chancery and that specially in Three Causes 1 When a Sentence is given in any Ecclesiastical Cause by the Archbishop or his Official 2 When any Sentence is given in any Ecclesiastical Cause in places exempt 3 When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime according to the Civil Law That this Court of Delegates may Excommunicate was Resolved by all the Judges in the Archbishop of Canterbury's Case They may also commit or grant Letters of Administration This Court of Delegates is the highest Court for Civil Affairs that concern the Church for the Jurisdiction whereof it was provided 25 H. 8. That it shall be lawful for any Subject of England in case of defect of Justice in the Courts of the Archbishop of Canterbury to Appeal to the King's Majesty in his Court of Chancery and
sue the Parishioner in the Ecclesiastical Court for Tithes in kind no Prohibition to be granted on that discharge by Deed for they may well try that having cognizance of the Principal If a Parson Lease all the Tithes of his Benefice to the Parishioner and after sue him in the Ecclesiastical Court for his Tithes in his hands no Prohibition to be granted for the Lease is a good discharge there Likewise if the Parishioner grant Land to the Parson for and in lieu of his own Tithes and after the Parson sue him in the Ecclesiastical Court for the Tithes no Prohibition to be granted for that matter will be a good discharge there If a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead an Arbitrement in Bar they shall try that there and no Prohibition to be granted upon that c. for by intendment it is a good discharge there Likewise if a Parson sue for Tithes in the Ecclesiastical Court and the Defendant there plead a Lease of them by Deed by the Parson to him rendring Rent to which the Plaintiff says the Rent was reserved upon condition of Non-payment to be void and averrs that it was not paid at a certain day and the other pleads payment at the day This shall be tryed there and no Prohibition granted If a Parson Lease by Deed the Tithes of the Parish and after sues for the Tithes in the Ecclesiastical Court and there the Lease is pleaded where the Question between them is Whether it be the Tithes of the whole Parish or only of some particular things yet no Prohibition lies for they have cognizance of the Original but if they judge contrary to the Common Law a Prohibition lies after Sentence If a man sue for a Legacy in the Ecclesiastical Court and the Defendant plead a Release in Bar and the Plaintiff deny it that shall be tryed there for that it arises from the Original cause whereof they have the Jurisdiction If an Administrator sue for a Legacy due to the Deceased in the Ecclesiastical Court and the Defendant plead the Release of the Deceased in Bar and the Plaintiff avoid it for that the Deceased was an Ideot That Ideocy shall be tryed there and no Prohibition granted for that they have Jurisdiction of the Original matter If a Parson sue in the Ecclesiastical Court and the Defendant there plead that the Plaintiff was presented upon a Simonaical Contract against the Stat. of 31 Eliz. That shall be tryed there for that they have Jurisdiction of the Original thing But the Ecclesiastical Court can take no cognizance of a Custome whereby the Inheritance is perpetually charged although the thing Customable be cognizable by them And therefore if the Church-wardens of the Parish of S. Libel in the Ecclesiastical Court against J. S. Farmer of the Farm of D. for a Contribution to the Reparation of the Church and alledge that part of the Farm lies in the Parish of S. and part thereof in the Parish of W. and alledge a Custome that the Farmers of the said Farm have used time out of mind to contribute to the Reparation of the Church of S. throughout the whole Farm if the Defendant saith that part of the Land of the said Farm lieth within the Parish of W. and that it had used time out of mind c. for that part to contribute to the Church of W. and not to S. and so deny the said Prescription This shall not be Tryed in the Ecclesiastical Court but at the Common Law and for that a Prohibition lies for they shall not try a Custome in the Ecclesiastical Court by which the Inheritance is to be perpetually charged If A. the Parson of D. sue for Tithes in the Ecclesiastical Court against B. who pleads a Lease for years made to him by the Parson To which A. the Parson Replies That he was Non-resident and absent 80 days and more in such a year c. from his Benefice by which the Lease became void No Prohibition lies upon that plea for that it is grounded on the Statute of 13 Eliz. and although it was Objected That the Judges Ecclesiastical shall not have the Exposition of a Statute yet for that they have Jurisdiction of the Original cause they shall have power to try that which incidently doth arise from thence and the Prohibition was denied 18. A Prohibition was prayed upon the Statute of 23 H. 8. for suing for a Legacy of ten pounds in the Prorogative Court whereas the party did dwell in another Diocess but because the Will was proved in that Court and there Sentence was given for the Legacy and an Appeal upon the Sentence to the Delegates where it was affirmed and endeavour was to stay the Suit by the Statute the party having so long allowed of the Jurisdiction of the Court Adjudged the party came too late now to have a Prohibition 19. In Norwood's Case it was held That where a man is sued in the Ecclesiastical Court for slanderous words a General Pardon doth not aid the party for staying the Suit there which is for or ad instantiam partis But contrary where the party is sued there ex officio Judicis 20. In order to a Prohibition it was surmised That the Defendant was a Clerk and assaulted his Servant and he coming to keep the Peace and to aid his Servant laid his hands peacably upon the Defendant for which he sued him in the Ecclesiastical Court where he pleaded this matter and they would not allow of his plea It was said by the Justices That this Case was out of the Statute of Articuli Cleri Circumspecte agatis for here the party had Quaere by what Law for this is not in the Case of Se Defendendo good cause to beat the Clerk and a Prohibition was granted 21. By the Justices if Issue be joyned whether a Church be void by Cession Deprivation or Resignation it shall be Tried by the Countrey because it is a thing mixt for the Avoidance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en Loyal Matrimony shall be tried by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the Writ shall be tried by the Country 22. A Sentence was given definitive in the Ecclesiastical Court in a Suit there for Tithes pro triplici valore a Prohibition was prayed a special Prohibition was awarded That they should not proceed to the Execution of the Sentence as to the treble value because that Court is not to give the treble value but the double value only 23. In a Case between a Parson and Church-wardens against one Reynolds it was suggested That all those who had the House wherein the said Reynolds did dwell had used to find meat and drink for the Parson and them going in Procession in Rogation-week at his house and
Faggots be mistaken yet if it appears that he made his Suggestion according to the Copy of the Libel given him by his Proctor no Consultation shall be brought for by the Statute of 2 H. 5. he ought to have a true Copy of the Libel 30. The Case was where A. sued B. for Tithes within the Parish of C. B. said they were within the Parish of D. and the Parson of D. came pro interesse suo and they proceed there to Sentence Question if in such a Parish or such a Parish shall be tried by the Law of the Land or of the Church Wray said It was Triable by the Common Law Fenner said the Pope hath not distinguished of Parishes but Ordained that Tithes shall be paid within the Parish 31. K. â—arson of S. sued C. in the Spiritual Court for Tithes of certain Lands in the Parish of S. D. Plaintiff in the Prohibition came pro interesse suo and said there was a Custome within the Parish of S. that the Parson of H. shall have Tithes 13 Cheeses of the Lands in S. and in recompence thereof the Parson of S. had 13 Cheeses for the Tithes of H. It was said the Right of Tithes were in question and not the Bounds of the Parish and therefore no Prohibition and of that Opinion was the Court and a Consultation awarded 32. If an Administration be granted to A. where it ought not to be granted to him and after the Administration be Repealed and granted to B. for that he is the next of Kin In this case B. may sue A. in the Ecclesiastical Court to Account for the profits of the Goods and Chattels of the Deceased during his time and no Prohibition to be granted for B. cannot have an Action of Trespass against A. nor hath he any remedy for them at the Common Law 33. A Parson may sue in the Ecclesiastical Court for a Modus Decimandi and no Prohibition shall be granted for it is in the nature of Tithes But a Prescription cannot be tried in the Ecclesiastical Court for that it ought to be tried by a Jury which cannot be there Yet if a Parson Prescribe to have Tithes of things not Tithable as of Rents of Houses he may sue for that in the Ecclesiastical Court and no Prohibition lies yet no Tithes de jure ought to be paid of them So he may sue in the Ecclesiastical Court for the Tithes of great Trees which he claims by Prescription and no Prohibition lies yet de jure they are not Tithable Quaere 9 H. 6. 46. 34. If there be a Custome that after the Grass is cut and set into Grass-cocks the Tenth Cock be assigned to the Parson and that by the Custome it shall be lawful for him to make the same into Hay upon the Land and the Owner of the Land disturb him from making the same he may sue for that in the Ecclesiastical Court and no Prohibition shall be granted for that is incident to the Custome to come there to make the same into Hay Also the proper place to sue for a Legacy is the Ecclesiastical Court for that it is not any Debt but only due by the Will If A. do owe to B. five Marks and he Devise by his Will that whereas he doth owe five Marks to B. his Executor shall make it 10 l. The Suit for that 10 l. may be in the Ecclesiastical Court for that is not any Addition to the five Marks but a new Sum given in satisfaction of the five Marks and so no part of the 10 l. any Debt but only a Legacy Also if a man devise a Rent out of his Stock and House which he hath for years the Devisee may sue for that Rent in the Ecclesiastical Court for that it issues out of a Chattel and no remedy for it at the Common Law If a man possessed of a Lease for years Devise that his Executor shall out of the profits thereof pay 20 l. to each of his Daughters at their full Age the Executor may be sued in the Ecclesiastical Court to put in Sureties to pay the Legacies and no Prohibition shall be granted for that is to issue out of a Chattel 35. If there be a Question between two persons touching several Grants which of them shall be Register of the Bishop's Court that shall not be tried in the Bishop's Court but at Common Law for although the Subjectum circa quod be Spiritual yet the Office it self is Temporal Also if a man set forth his Tithes by severance of Nine parts from the Tenth and after carry away the Tenth part the Parson cannot sue for that in the Ecclesiastical Court for that by the severance of the Nine parts it did become a Chattel for which he might have his Action of Trespass 36. It is Reported That if a Suit be in the Ecclesiastical Court against a Woman for exercising the Trade of a Midwife without License of the Ordinary contrary to the Canons a Prohibition lies for that is not any Spiritual Function whereof they have cognizance And in this case Prohibition was granted to the Court of Audience 37. The Ecclesiastical Court may not try the Bounds of a Parish and therefore if Suit be there on that matter a Prohibition lies So if the Question there be whether such a Church be a Parochial Church or but a Chappel of Ease a Prohibition also lies In the Case between Elie vicar of Alderburne in the Country of Wilts and Cooke Prohibition was granted and thereupon Issue joyned whether several Parishes and tried by Verdict to be one Parish 38. Where a man sued for a Legacy in the Ecclesiastical Court against an Executor and he there pleaded that he had not Assets save only to pay the Debts and the said Court disallow'd of that plea a Prohibition was granted 39. If a man sues in the Ecclesiastical Court to have an Account for the profits of a Benefice a Prohibition lies for that it belongs to the Common Law But if the Suit be for the profits taken during the time of Sequestration no Prohibition lies 40. In Worts and Clyston's Case where the Plaintiff sued for Tithes in the Ecclesiastical Court by virtue of a Lease made by the Vicar of T. for three years The Defendant prayed to be discharged of Tithes by a former Lease The Plaintiff in the Ecclesiastical Court prayed a Prohibition to stay his own Suit there It was granted by the Court because they are not to meddle with the trial of Leases or real Contracts there although they have Jurisdiction of the Original cause viz. the Tithes 41. In Collier's Case upon the endowment of a Vicarage upon an Appropriation it was Ordained by the Bishop That the Vicar should pay yearly 20 l. to the Precentor in the Cathedral Church of S. to the use of the Vicars Chorals of the said Church It was held
Law Provisional touching the Building of new Chappels 18. Whether a Seat in the Church and Priority in that Seat claimed by Prescription be Triable at the Common Law by Action upon the Case 19. A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church 20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone without the Major part of the Inhabitants 21. Church-Seats in the generality are in the Ordinaries power to dispose 22. Divers other Cases at the Common Law pertinent to the subject of the Premisses 23. In what respects an Inhabitant in one Parish having Land in another may or may not be Taxed as to the Church of that Parish where the Land lies 24. The difference in Law between a Parsons grant to a man his own Tithes and his grant to him the Tithes of another man as to the validity of the Grant 25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the Diocess 26. In what respect a man inhabiting in one Parish shall be charged towards the Reparation of the Church of another where he hath Land and in what respects not so 27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court and no Prohibition notwithstanding any inequality in the Rate 28. Repairers of a Chappel of Ease not discharged thereby of Reparations of the Mother-Church 29. Land in a Parish not to be Rated for the Ornaments of a Church That Rate to be according to the personal Estate 30. In what case a Prohibition lies to a Suit for Reparations of a Church not so as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church 31. The Bounds of a Parish not Triable in the Ecclesiastical Court though the difference be between two Spiritual persons 32. Prohibition where a Vicar sued the Parson Impropriate for Dammages for cutting down the Trees growing in the Church-yard 33. Prescription of Repairing a Chappel of Eâ—se no discharge from repairing the Mother-Church 34. The charge of Repairing a Church refers to Land of providing Ornaments of the Church to the personal Estate and how to be apportioned between Landlord and Tenant 35. Action of Trespas lies for the Heir of such whose Coat-Armor or Monument in Church or Church-yard is by any defaced or demolished be it by the Parson the Ordinary or by any other 36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church 37. Certain Cases in Law touching striking in a Church and Church-yard and drawing a Weapon in the same 38. The difference taken between having a Seat in the Isle of a Church and a Seat in the Body of the Curch 39. A Prohibition denied on a Prescription of not Repairing a Mother-Church in regard such Prescription is meerly Spiritual 40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches 41. Towards Church-Reparations all Lands within the Parish as well of Foreigners as Parishioners are ratably liable 42. Controversies touching Seats in Churches determinable in the Spiritual not Temporal Courts In what Cases the Common Law hath took cognizance thereof 1. CHURCH Ecclesia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from the old word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or rather 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h. e. evocare being an Assembly of men gathered out of all Mankind or evocatus per Evangelium or from the Hebrew Cahal h. e. Congregatio the true visible Church being a Congregation of Faithful men in which the pure Word of God is preached and the Sacraments duly ministred according to Christ's Institution in all things necessary to the same This in a Theological sense but the word Church in a Legal sense as here chiefly intended differs from the former as far as Dead Walls do from Living Saints there being no more here designed to be touch'd at than what refers rather to the Place than to the Persons Churches are of three sorts Cathedral Collegiate Parochial The Bishop is the Incumbent of the first Priors and Abbots were and Heads of Colledges are Incumbents of the second and Parsons of the third commonly called a Rectory being either a Parsonage or a Vicarage And that either 1 Ratione dotationis 2 Fundationis 3 Fundi 2. The Emperour Justinian Decreed That the Lands of the Church should not be sold alienated or exchanged unless it were to the Prince's house or to or with another like Religious place and that in equal goodness and quantity or that it were for the Redemption of Captives But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects and so as that they shall remain and continue according to the true intent of their Foundation to their Successors for ever to the uses and purposes therein limited 3. By the Common Law the Church and Church-yard are it seems the Soyl and Freehold of the Parson but the use of the Body of the Church and the Repairs and Maintenance thereof is common to all the Parishioners albeit the disposal of the Pewes in the Body of the Church or an Isle or Chappel joyning to the Body and the disposing of the charges of the Repairs thereof belong to the Ordinary insomuch that no man can challenge a Seat in the Body of the Church without shewing some special reason for the same All which appears in the Case of Boothby against Baily where Boothby being Executor of Gilbert brought a Prohibition against Baily and his Surmize was That whereas Sir Bernard Whetston was seized of the Mannor of Woodford-Hall and that he and those whose Estate he hath in the same had used time out of mind to have a peculiar Pew in the Body of the Church and that the Defendant by Suit in the Ecclesiastical Court sought to dispossess them of the same And by the Opinion of the whole Court this was no sufficient ground of a Prohibition for though the Church and Church-yard be in Law the Soyl and Freehold of the Parson yet the use of the Body of the Church and the repair and maintenance thereof is common to all the Parishioners And for avoiding of confusion the distribution and disposing of Seats and charges of Repair belong to the Ordinary and therefore no man can challenge a peculiar Seat without a special reason But if it had been Prescribed That Sir Bernard Whetstone c. had used time out of mind at their own costs to maintain that Pew and had therefore had the sole use thereof the Prescription might have stood and been warrant for a Prohibition though the Pew were in the Body of the Church And so it is in the like case of an Isle or Chappel adjoyning to the Body of the Church upon the same difference whether it hath been maintained by the whole Parish or
by some particular persons like unto the Reasons of a Chappel of Ease 4. Touching the Reparation of Churches it hath been Ruled That he who hath Land in a Parish though he doth not inhabite there shall yet be chargeable to the Reparation of the Parish-Church but not to the buying of the Ornaments of that Church for that-shall be levied of the Goods of the Parishioners and not of their Lands by Sir Hen. Yelverton and said to be so formerly adjudged And it hath been holden That if two Churches Parochial be united the Reparation shall be several as before And although the Lord of a Mannor may prescribe to a certain Seat or Pew in the Church by having time out of mind maintained and repair'd the same at the proper costs of himself and Ancestors yet as to the Common Seats of the Church it is otherwise in respect of the Common Parishioners As in the Case of Harris against Wiseman against whom Harris had procured a Prohibition Wiseman having Libelled in the Ecclesiastical Court against him for a Seat in the Church which did belong to his House and it was said by Hobart and Winch only present That a man or a Lord of a Mannor who had an Isle or a Seat in the Church c. and he is sued for that in the Spiritual Court he shall have a Prohibition but not every common Parishioner for every common Seat yet in that case a Supersedeas was granted to stay the Prohibition It hath also been held That the Grant of a Seat in a Church to one and his Heirs is not good for the Case of Brabin and Tradum was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Chuch whereupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this Grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the Person but to the House for otherwise when the person goes out of Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabâ—la 5. In the Case of Day against Beddington and others upon a Cross-Bill between the parties for pulling down of painted Glass Pictures and Arms in a Window in an Isle of a Chappel in the Parish of Wellington in Somerset these points in the Case were Resolved 1. If an Inhabitant there and his Ancestors time out of mind c. have used to Repair an Isle in a Church and to sit there with his Family c. and to bury there that makes that Isle proper and peculiar for his Family Otherwise if he had not used to Repair it at his own costs but with the charge of the Parish then the Ordinary may appoint who shall sit there from time to time notwithstanding a use to sit there only to the contrary 2. If any Superstitious Pictures are in a Window of a Church or Isle c. it is not lawful for any to break them c. without License of the Ordinary and if any does to the contrary he shall bind him to his good Behaviour And so it was in Prickett's Case 3. That the Ordinary or Church-warden cannot License a Parishioner to Bury within the Church But it ought to be Licensed by the Parson for the Franktenement is in him only 4. If Coats of Arms are put in a Window or upon a Monument in the Church or Church-yard they may not be broken by the Ordinary Parson or Church-wardens or any other for the Heir shall have his Action upon the Case for that 9 Ed. 4. 14. for they belong to him 30 Ed. 3. 9. b. c. 5. If one be Assaulted in the Church or within a Church-yard he may not beat the other or draw a Weapon although it be in his own defence there for it is a Sanctified place and he may be punished for that by 2 Ed. 6. And so if in any of the King's Courts or within view of the Courts of Justice because a Force in that case is not justifiable though in his own defence 6. For the penalty of Striking or drawing a Weapon in the Church or Church-yard Vid. Stat. 5 Ed. 6. cap. 4. whereby it is enacted That if any person shall by words only quarrel chide or brawl in any Church or Church-yard it shall be lawful for the Ordinary of the place upon proof by two Witnesses to suspend the Lay-Offender ab ingressu Ecclesiae and the Clerk-Offender from the ministration of his Office for such time as to the said Ordinary shall seem meet And if any one shall smite or lay violent hands upon another in any Church or Church-yard in that case ipso facto the Offender shall be deemed Excommunicate But and if any person shall maliciously strike another with any Weapon in any Church or Church yard or to the intent of striking another with the same shall but draw a Weapon in any Church of Church-yard the Offender being thereof duly convicted shall lose one of his Ears if he hath any or in one of his Cheeks with a hot-Iron be burnt and mark'd with the letter F in case he hath no Ears and besides shall stand ipso facto Excommunicated Upon this Statute there was an Indictment against Jasper Colmley and John Colmley of Hoxton in the County of Middlesex for that they Insultum fecerunt upon John Higham Dr. of Physick in Ecclesia de Shoreditch praedicta Et praedict Joh. Higham adtunc c. ibidem in Ecclesia praedict de Shoreditch verbaraverunt vulneraverunt male tractaverunt contra formam Statuti c. Upon this the Grand Jury find Billa vera quoad Jasper Colmley and Ignoramus for John Colmley And hereupon he appeared and pleaded Not guilty and found against him Rolls now moved in an Arrest of Judgment That the Indictment was not good being Fecerunt whereas it is found only Billa vera against one Sed non allocatur because it was exhibited against Two and it is but false Latin Secondly because the Indictment is contra formam Statuti and this Offence is not punishable by the Statute unless that he smote with a Weapon or drew a Weapon in the Church or Church-yard or drew a Weapon to that intent which is not mentioned in the Indictment And by the Second clause in the Statute For smiting or laying violent hands it is Excommunication ipso facto and it is not mentioned here how he struck and thereof the Justices doubted But Jones said That the Indictment is good for Battery at the Common Law But all the other Justices were against him
a day extraxit gladium against J. L. ipsum percussit and because the Statute was If any person maliciously strik another or shall draw any Weapon with an intent to strike any person And the Indictment was quod extraxit but does not say ad percutiendum And because it is quod percussit without saying malitiose the party was discharged upon Judgment If there be a Parson Appropriate of a Church and also a Vicar endowed of the same Church the Trees in the Church-yard do there belong to the Vicar and not to the Parson for that there the Vicar ought to repair the Church and he shall have the Trees which ought to repair the Church Dubitatur Mich. 13 Jac. B. R. Bellamie's Case The Lord Coke said That for the Body of the Church the Ordinary is to place and displace in the Chancel the Freehold is in the Parson and it is parcel of his Glebe Trespass will lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House 23. An Inhabitant of the Parish of D. hath Land in his occupation in the Parish of S. The Church-wardens of S. and other the Parishioners there make a Tax for the Reparation of the Church for Ornaments of the Church and for the Sexton's wages amounting to the sum of 23 l. and the Tax of the Church being deducted cometh but to 3 l. only The Foreigner which dwells in D. is sued in the Ecclesiastical Court by the Churchwardens of S. for his part of the said Tax and he prays a Prohibition Henden said he well agreed the Case of Jefferies 5 Coke that he should be charged if this Tax had been for the Reparation of the Church only for this is in nature Real But when that is joyned with other things which are in nature personal as Ornaments of the Church or Sexton's wages with which as it seems he is not chargeable then Prohibition lies for all Flemming Chief Justice and Williams Justice thought fit that he should not have a Prohibition for as well the Reparations of the Church as the Ornaments thereof are meerly Spiritual with which this Court hath nothing to do and Flemming said That such Tax is not any charge issuing out of the Land as a Rent but every person is taxed according to the value of the Land But Yelverton and Fenner to the contrary that a Prohibition doth lie for the same diversity which had been conceived at the Bar and also they said That he which dwels in another Parish doth not intend to have benefit by the Ornaments of the Church or for the Sexton's wages And for that it was agreed by all by the Chief Justice Williams and the others That if Tax be made for the Reparation of Seats of the Church that a Foreigner shall not be taxed for that because he hath no benefit by them in particular and the Court would advise In Penner and Crompton's Case it was held That none shall be chargeable for contribution to Church-reckonings if he do not inhabit there or consent to them More 's Rep. 24. Note upon a motion for a Prohibition That if a Parson contract with me by word for keeping back my own Tithes for three or four years This is a good Bargain by way of Retainer and if he sue me in the Ecclesiastical Court for my Tithes I shall have a Prohibition upon this composition But if he grant to me the Tithes of another though it be but for a year This is not good unless it be by Deed. 25. The disposal of Seats in the Body of the Church doth belong of common right to the Ordinary of the Diocess so as he may place and displace at his pleasure If a man and his Ancestors and all those whose Estate he hath in a certain Messuage have used time out of mind c. to repair an Isle of the Church and to sit there and none other the Ordinary may not displace him for if so then a Prohibition lies for that he hath it by prescription upon reasonable consideration Likewise if a man prescribe That he and his Ancestors and all those whose Estates he hath in a certain Messuage have used to sit in a certain Pew in the body of the Church time out of mind c. in consideration that he c. have used time out of mind to repair the said Seat If the Ordinary remove him from that Seat a Prohibition lies for in this case the Ordinary hath not any power to dispose thereof for that is a good prescription and by intendment there may be a good consideration for the commencement of that prescription although the place where the Seat is be the Parson 's Freehold In this case a Prohibition was granted to the Bishop of Exeter for one Cross But if a man prescribe to have a Seat in the Body of the Church generally without the said consideration of repairing the Seat the Ordinary may displace him But with the Seats in the Chappels annexed to Noblemens Houses it is said the Ordinary hath nothing to do If there be a custome in a Parish that 12 of the Parishioners may chuse the Churchwardens which Churchwardens have power by the custome to repair the old Seats and erect new in the Body of the Church and to appoint who shall sit in them And the Churchwardens so elect erect a New Seat in the Body of the Church and appoint a certain person to sit there and after the Ordinary decree That another shall have the Seat In this case it is said a Prohibition lies for the custome hath fixt the power of disposing the Seats in this case in the Churchwardens and a Prohibition was granted But it was also partly granted for that the Sentence of the Ordinary was That T. should have the Seat to him and his Heirs and that none should disturb him on pain of Excommunication which is unreasonable and by that Sentence he and his Heirs shall have it although they do not Inhabitants within the Parish 26. The Ecclesiastical Court hath cognizance of the Reparations of the Body of the Chuech If a man that dwells in one Parish hath Land in another the which he keeps in his own hands and occupation he shall be charged for that Land for the Reparation of the Church of that Parish where the Land lies for that he may come when he will and it is a charge in respect of the Land But if an Inhabitant in one Parish lease out his Land which he hath in another Parish reserving Rent he shall not be charged where the Land lies in respect of the Rent because there is a Parishioner and an Inhabitant that may be charged And a man cannot be charged in the Parish where he doth inhabit for Land which he hath in another Parish to the Reparation of the
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
the Trees there growing and whether he hath any in the Bells or Ornaments of the Church 4. How he must be qualified that will be a Parson and who is rendred incapable of being such 5. Whether the Parson may demand any thing by Custome upon the Burial of one who dying in his Parish was Buried elsewhere 6. The words Parsonage Church Rectory frequently used Synonymously Pensions of Ecclesiastical cognizance 7. A Case in Law touching a Parsons Obligation for Resignation 8. Whether a Parsons acceptance of Rent makes his Predecessor's Lease good 9. Prohibition to the High Commissioners of York touching Articles exhibited before them against a Parson 10. A Case in Law touching the Confirmation of a Lease made by a Parson 11. Other Cases at the Common Law relating to Parsons 12. The Patron nothing to do in the Church during Plenarty 13. By what words a Resignation of a Parsonage may be or not 14. Whether the Resignation of a Donative may be to the Donor or how it may be departed with 15. Whether the Parson may appoint the Parish Clerk 16. A Bishop Archdeacon and Parson are Spiritual Corporations and have a double Capacity 17. All differences between Parsons and Vicars concerning the endowment of the Church are cognizable in the Ecclesiastical Court 18. Priviledges of the Clergy 1. THere is Parson Persona and Parson imparsonee Persona impersonata Parson properly signifies the Rector of a Parochial Church because during the time of his Incumbency he represents the Church and in the eye of the Law sustains the person thereof as well in Suing as in being sued in any Action touching the same Originally the Parson was he that had the charge of a Parochial Church and was called the Rector of that Church but it seems he is most properly so called that hath a Parsonage where there is a Vicarage Endowed And yet it is supposed that Persona is the Patron or in whom the Right of Patronage is for that before the Lateran Council he had Right to the Tithes in regard of his having erected and endowed the Church which he had Founded The Pastors of Parishes are called Rectors unless the Praedial Tithes be Impropriated and then they are called Vicars Quasi vice fungentes Rectorum and Curates are they who for certain Stipends assist such Rectors and Vicars that have the care of more Churches than one 2. Parson Imparsonee is he that as lawful Incumbent is in actual possession of a Church Parochial and with whom the Church is full be it Presentative or Impropriate and seems also to be that person to whom the Benefice is given in the Patrons Right for in some Books Persona impersonata is taken for the Rector of a Benefice Presentative and not Appropriated Yet Dyer saith That a Dean and Chapter are persons Imparsonees of a Benefice Appropriated to them and in another place plainly sheweth That Persona impersonata is he that is Inducted and in possession of a Benefice So that persona seems to be termed impersonata only in respect of the possession which he hath of the Benefice or Rectory be it Appropriate or otherwise by the Act of another 3. The Parson hath a Right unto the possession of the Church and Glebe having the Freehold in himself and may receive the profits Tithes Oblations Obventions and Offerings to his own use without the Patrons or Ordinaries consent who without his consent and agreement can do nothing during his incumbency to charge the Church or his Successors And not only is the Freehold of the Church in the Parson but he hath also the Right of the Church-yard and Glebe in him whereof if he be put out of possession or disseised he may have an Assize Or if he be Ejected he may have Trespass and so may the Vicar have against a Stranger if he be disseised of the Church-yard but not against the Parson himself For the Parson shall have an Assize or an Action of Trespass of such things as are annexed unto the Church or Glebe or for cutting down of the Trees or doing of Trespass in the Church-yard or Glebe the Right and interest thereof being in the Parson But if the Bells in the Steeple the Ornaments of the Church or the like be taken away in that case the Action doth not belong to the Parson but to the Churchwardens Notwithstanding the Parsons Right and interest as aforesaid yet he cannot cut down the Trees growing in the Church-yard of his Parish save for the Repair of the Church Or if a meer Stranger cut them down no Suit can be thereon in the Spiritual Court for Dammages for if Suit be there commenced in that Case for Dammages no Consultation shall be Nor can the Parson have Action for Seats in the Church taken away by a Stranger because they are not fixed to the Freehold but the Churchwarden may have Action in that case 4. No man can be a Parson until he be a Priest in Orders which he cannot be until he hath attained the Age of 24 years Consequently therefore he must be of that Age ere he can be a Parson and is commonly called when Inducted into a Church the Rector thereof and shall be accounted Proprietor of the Tithe of the Parish whereto the Church belongs if the contrary be not shewed A man that is guilty of some Crime that is malum in se as Murther Perjury Forgery or the like though not convict thereof yet if the Truth thereof be certainly known to the Ordinary may be rejected by him from being Pâ—rson of a Church if thereunto presented by the Patron Otherwise it is in case he be guilty only of malum prohibitum and not malum in se as to play at unlawful Games to frequent Taverns and Alehouses or the like Also the Son is by the Canons rendred incapable of succeeding his Father in his Parsonage And if a man presented to a Living be not in Orders the Bishop may refuse him but not for want of a Testimonial for if any person shall be Admitted Instituted and Inducted into any Living before he is in Holy Orders his Admission Institution and Induction are void by the late Act of Uniformity whereby his Subscription and thereof the Bishops Certificate also his Reading the 39 Articles of Religion in the same Parish-Church on some Sunday or the Lord's-day tempore Divinorum within two months next after his Induction the declaration of his unfeigned Assent and Consent thereunto his Reading the Book of Common Prayer or Service appointed for the Church that day within two months next after his Induction with the declaration also of his Assent and Consent to all things therein contained are required otherwise the Church becomes void and the Parson will be put to the proof of all the Premisses in case â—e Sue the Parishioner refusing to pay his Tithe if he shall insist thereon
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
Advowson lieth for him who hath an Estate in an Advowson in Fee-simmple or Right of an Estate therein to him and his Heirs in Fee-simple Which Writ being Quod clamat tenere de te doth suppose a Tenure and lieth not only for the whole Advowson but also for some part thereof As also because a Praecipe quodreddat lieth for it as hath been Adjudged As also that a Common Recovery may be suffered of an Advowson as hath been likewise Adjudged As also because an Advowson as other Temporal Inheritances may be forfeited by Attainder of Treason or Felony or lost by Usurpation six months Plenarty Recusancy Outlawry Negligence or Lacks of Presentment Translation or Cesser and given away in Mortmain As also for that the Wife shall be endowed thereof and have the third Presentment and the Husband shall be Tenant thereof by the Courtesie also it is successively devisable among Coparceners that the priority of Presentment shall be in the eldest Sister likewise it may pass by way of Exchange for other Temporal Inheritance and albeit during the vacancy of the Church it be not in it self valuable yet otherwise it is as to an Incumbent and by Grat of all Lands and Tenements an Advowson doth pass if not by Livery yet by Deed is transferable as other Temporal Inheritances and pass with the Mannors whereunto they are appendant by Prescription unless there were before a severance by Grant Deed Partition or other Legal Act which Prescription is so requisite to Appendancy as without which it cannot well be at all 8. An Advowson in Gross is understood as under a more beneficial qualification than that which is Appendant and that which is Appendant may by severance become an Advowson in Gross And therefore in the Case where a man being seized of a Mannor whereto an Advowson was Appendant and by Deed granting one Acre belonging to that Mannor unà cum Advocatione Ecclesiae did further by the same Deed give and grant the said Advowson the Question was whether the Advowson did pass as Appendant to the Acre or as an Advowson in Gross And the better Opinion was That by that Grant the Advowson was severed from the Mannor and was become in Gross for that the Deed shall be taken most beneficial for the Grantee to have the Advowson in Gross and not as Appendant to the Acre But in that case it was Agreed If the whole Mannor had been granted then the Advowson had passed as Appendant and not in Gross Yet an Advowson Appendant to a Mannor descending to divers Coparceners making Partition of such Mannor without mentioning the Advowson remains Appendant notwithstanding such Division and Severance from the Mannor Yea although the Mannor of D. to which an Advowson is Appendant be granted and by the same Deed the Advowson also of the Church of D. So as it is named no otherwise than in Gross yet it shall thereby pass only as Appendant 9. If the King makes a Lease for life of a Mannor to which an Advowson is Appendant without making any mention of the Advowson the Advowson remains in the King as in Gross as was granted by the Justices And it was said by them That in such case by Grant of the Reversion Habendum the Reversion with the Advowson the Advowson passeth not to the Patentee for that the Advowson was severed and became in Gross as to the Fee And in another Case where it was found before Commissioners That A. was seized of a Mannor to which an Advowson was appendant and that he was a Recusant convict whereupon two parts of the Mannor were seized into the Kings hands who leased the Mannor with Appurtenances and all profits and commodities and Hereditaments to the same belonging unto J. S. for 21 years if A c. and afterwards the Church became void In this Case it was held That albeit there was no mention in the seizure of the Advowson yet the Presentment belonged to the King and that the King alone should Present Secondly That there were no words in the Kings Grant to J. S. to carry away the Advowson from the King and that notwithstanding that Grant the Advowson remained still Appendant to the Mannor 10. By words implying meerly matter of profit or things gainful as Cum omnibus commoditatibus Emolumentis proficuis advantagiis and the like an Advowson will not pass because it is contrary to the nature of an Advowson regularly and therefore the Advowson of a Vicarage appendant to a Prebend passed not by a Lease with such words of several parts of the Prebend to which such Advowson was appendant Not will an Advowson appurtenant to a Mannor pass by the Grant of an Acre of Land parcel of that Mannor cum pertinentiis otherwise if the Grant be of the Mannor it self cum pertinentiis Yet in a Case where the King being seized of a Mannor to which an Advowson was appendant granted the Mannor to J. S. for life and then granted the Mannor to J. D. after the death of J. S. Habendum cum Advocatione and then by Parliament the King reciting both the Grants confirmed them by Parliament yet it was Adjudged in that Case That the Advowson did not pass Nor will an Advowson if once Appendant pass without special words of Grant thereof which may not be strained in the construction thereof to an unusual or unreasonable sense for which reason an Appropriation will not pass by the name of an Advowson but as aforesaid an Advowson of a Vicarage may be Appendant to a Prebend All which hath been Resolved in the fore-cited Case And if Tenant in Tail be of a Mannor to which an Advowson is appendant the Church being full and he grants proximam Advocatione and then dies by his death the Grant becomes meerly void as was also Resolved in Walter and Bould's Case In a Quare Impedit The Case was between the Chancellor and Scholars of Oxford and the Bishop of Norwich and others The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowson 2 Jac. was a Recufant convict and that afterwards the Church became void and so they by the Statute ought to Present One of the Defendants pleaded That the Advowson was appendant to a Mannor and that two parts of the Mannor were seized into the Kings hands by Process out of the Exchequer and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances and granted also all Hereditaments but Advowsons were not mentioned in the Letters Patents and so said the Presentation did belong to the Defendant It was Resolved That the Advowson did not pass by the word Appurtenances without mention of Advowson or words Adeo plena integra in tam amplo modo forma as the Recusant had the Mannor 11. In case a Patron be Outlawed and the Church becoming
void a Stranger doth usurp and presents his Clerk to the Avoidance and Six months pass and afterwards the King being entitled to the Avoidance by reason of the Outlawry bring a Quare Impedit against the Incumbent as being in wrongfully and remove him By this means the Advowson is recontinued again to the Rightful Patron whereof he was ousted by the Usurpation who upon the reversal of the Outlawry shall Present in case the Church becomes void again 12. A man hath Three Avoidances granted him of one Church at one time and by one Deed The Church becomes void the Grantor by Usurpation presents his Clerk who is Admitted Instituted and Inducted afterwards the Church becomes void again In that case the Grantee shall present to the Second Avoidance for that the former Presentation made by the Grantor usurping did not put the Grantee out of all the Avoidances and Adjudged accordingly 13. A. seized of a Mannor with an Advowson appendant presented B. who was Admitted Instituted and Inducted afterwards A. fells the Mannor to which the Advowson was appendant unto J. S. The Church becomes void by the death of B. whereupon the Queen 15 Feb. 1588. Present J. D. by these words viz. Per mortem naturalem Incumbeatis ibid. vacant who thereupon 20th of the said Feb. was Admitted Instituted and Inducted by Letters of Institution Per Dominam Reginam veram indubitatam Patronam The said J. D. dies The King presents R. in these words viz. Ad nostram Praesentationem sive ex pleno jure sive per Lapsum Temporis sive alio quocunque modo spectant The only Question was Whether notwithstanding all this matter the Advowson did remain Appendant or not And it was Adjudged by the Court That the Advowson remained Appendant notwithstanding the Queens presentation of J. D. For it appeared there was no colour of Title to the Queen to present no Lapse for the Presentation Institution c. were all in the same month wherein the Advoidance was And it was no Usurpation by the Queen because the Presentation supposed a Right where none was and so was void for the Queen meant to do no wrong And upon the same reason the Presentation of R. afterwards by the King was void And it was then further holden by the Court That the Presentation of J. D. being void it was but a Collation of the Bishop which makes no disappendancy nor so much as a plenarty against the Rightful Patron but that he may bring his Quare Impedit when he will and if the Bishop receive his Clerk the other is out ipso facto 14. Although an Advowson be a kind of Reversion of a right of Presentation to a Living or Benefice called Spiritual yet it is now in the nature of other Temporal Inheritances and therefore he that hath this Right in him may either devise it by Will or grant it by Deed in Fee or for life or for years as other things And in regard an Advowson or Jus Patronatus refers to and respects not the Oblations and Tithes belonging to the Church but rather the Building thereof with the Ground whereon it is built and the Endowment thereof if therefore any debate or controversie should happen to arise touching any of these last mentioned it might prejudice the Patron as to his Right to the Advowson but if the controversie be only touching the other viz. the Oblations or Tithes whether Great or Small the Jus Patronatus will remain good and entire to the Patron notwithstanding such Controversie provided the Suit doth not extend and be for a fourth part of the whole belonging to the Church Lindw de Foro Comp. cap. Circumspecte verb. Item si Rector gl ibid. verb. quarta pars And he to whom the Right of Advowson of any Church appertains is termed Avowè for distinctions sake to discriminate him from those who sometime Present in the Name of another as a Guardian that presents in the Name of his Minor as also to difference him from such as have only for term of their Lives or of years or by Intrusion or Disseisin the Lands to which an Advowson appertains the Avowè properly and strictly taken being only he who may Present in his own Right and in his own Name 15. It hath been Adjudg'd That an Advowson belonging to a Prebend will not pass by a Lease thereof albeit it hath in it these words viz. Commodities Emoluments Profits and Advantages because all these four words being of one sense and nature imply things gainful which is contrary to the nature of an Advowson regularly as aforesaid yet an Advowson may be yielded in value upon a Voucher and may be Assets in the hand of an Executor and in the foresaid Case of London vers c. it is said That an Appropriation nor the Advowson of it will not pass by the name of an Advowson yet an Advowson will be contained under the name of a Tenement And where the King granted that Monks should have all their Possessions of the Abbey in the Vacation for their sustentation Ruled that they should not have the Advowsons because no sustentation arose from them nor will an Advowson though it be appendant pass in the Kings Grant without special words yet in the Case of a Recusant convict to whose Lands an Advowson is appendant the seizure of Two parts of his Land for the King is a Seizure by consequence of two parts of the Advowson without mention of it and if the King have but Two parts of an Advowson yet he shall Present alone for no Subject can be Tenant in Common with the King who though he be no party to a Quare Impedit yet if his Title appear clear for him against both parties shall have a Writ awarded for him to the Bishop Or if the King joyn issue in a Quare Impedit which is not found fully for him yet if a Title do any way appear the Court must award a Writ to the Bishop for him 16. A. brought Quare impedit against D. The Plaintiff counted that the Defendant had disturbed him to Present ad Vicariam de D. and shewed That the Queen was seized of the Rectory of D. and of the Advowson of the Vicarage of D. and by her Letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis etiam Vicariam Ecclesiae praedict And it was holden by the whole Court That the Advowson of the Vicarage by these words doth not pass nor so in the Case of a Common person much less in the Case of the King But if the Queen had granted Ecclesiam suam of D. then by Walmsley Justice the Advowson of the Vicarage had passed 17. Although he who after the death of a Parson Incumbent hath Right of Presentation in him doth not upon a Disturbance bring a Quare Impedit not Darrein Presentment but suffereth a Stranger to usurp upon him yet he
in strictness of Law by the words cum pertinentiis yet it shall be intended in respect of the Ancient and continued possession that there was a lawful Grant of the King to H. B. c. and all shall be presumed to be done which might make the Ancient Appropriation good And the Reason thereof there given is for that if the Appropriation had been drawn in question in the Life-time of any of the Parties to it they might have shewed the truth of the matter But after so many Successions of Ages in which the Church was esteemed to be rightfully Appropriated the Appropriation shall not now be drawn in question For the same reason a Procedendo was refused to be granted in Chancery in the Case of the Lord St. John of Bletso and the Dean and Chapter of Gloucester the Court then giving for Reason because the Defendant and those from whom he claimed time out of mind had had the possession of a Parsonage as Impropriate saving for some short time and because it shall be a dangerous President for Owners of Impropriations to maintain the Appropriations to be Perfect in all points and circumstances requisite to an Absolute Appropriation the Appropriations being made of Ancient time The like Resolution was given by the Court in Hunston and Cockett's Case viz. That whether an Appropriation be good or not cannot now be called into question but shall be intended to be good and to all requisite Circumstances 7. An Appropriation cannot in any case be made by the Patron himself only yet where the King is Patron it may be made by him Sole And although upon every Appropriation there ought to be an Endowment of a Vicar yet a Vicarage it self Endowed may as hath been held by the whole Court be Appropriated but not to the Parson and as in the Book 21 H. 6. is such a Vicarage as may afterwards be dissolved And if a Lease be made of a Parsonage Impropriate by one who hath not any thing therein during the life of the Incumbent it will be void nor can an Appropriation be made to a Church which is Full of an Incumbent but by Special words It hath also been held That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope had not any power to make any Ordinance against that Statute by which he hath not any Right to meddle with Advowsons Benefices c. and that by his Bulls he cannot dispence with the Law though they tend in ordine ad Spiritualia 8. Touching Appropriations there were Three considerable Points in Law Resolved by the Justices in Grendon's Case 1 That none is capable of Appropriation but a Body Corporate or Politick Spiritual which hath a Succession For that the effect of an Appropriation as to the first Institution thereof was to make the Body Politick perpetual Incumbent and to have the Rectory and that he hath the Cure of all the Souls of the Parishioners and therefore he must be a Spiritual person 2 That the King Ordinary and Patron ought to be assenting unto every Appropriation and that the Authority which the Pope had usurped in this Realm was by Parliament An. 25 H. 8 acknowledged to be in the King and the King being Supream Ordinary might of his own Authority and Jurisdiction make an Appropriation without the Assent of the Bishop 3 That an Appropriation may be made by Apt words when the Church is Full as to say That the Parson who is a Spiritual person after that the Church shall be void shall be Parson and may retain the Glebe and the Fruits of the Church to his proper use and that the same shall be a good Appropriation when the Church shall be void by death or otherwise 9. It is brought by way of Report to us That it was the Opinion of the Master of the Rolls in the great Case of Consultation which was argued in the Exchequer Chamber the 18 H. 6. 21. a. That an Advowson could not be Appropriate without a Succession although that the Incumbent purchased the Advowson by License to hold to his Own use Where it was further said That if a Prior were seized of an Advowson to him and his Heirs and he purchase License of Appropriation and that he and his Successors might hold the Advowson to their own use yet the Advowson shall descend to his Heirs But in such case if he would have the Appropriation to be good it were best to alien the Advowson and after to re-purchase it to him and his Successors and then the Appropriation will be good All Appropriations have been usually to Corporations or persons Spiritual and not to Bodies Politick consisting of meer Lay-men or Lay-Corporations And in Alden and Tothil's Case it was in question Whether the King since the Statute of 25 H. 8. might by his Letters Patents Appropriate a Church Parochial which was before Presentative unto a Lay-Corporation all the Members of the Corporation being meer Lay-men which Case was not then Resolved 10. As a Church Parochial might be Appropriated so a Church which is Appropriated to a Spiritual Corporation may become disappropriate if the Corporation be-dissolved Also if the Advowson of a Church were by License granted to a Prior and his Successors and afterwards the same Church were Appropriated to him and his Successors so as thereby they became perpetual Parsons Imparsonees In that Case if the Wife of a Grantor were endowed of the Advowson and Presented a Clerk who was Admitted Instituted and Inducted the Appropriation would be defeated for ever for the whole Estate of the Parson Imparsonee is thereby avoided And so it was Adjudged 2 E. 3. 8. sed Quaere For in the Case of Lancaster and Lucas it was held by the Court That in such Case the Church was Disappropriated but during the life of the Wife and after her death it should remain as Appropriated 11. Sir H. Hobart Chief Justice in the Case of Colt and Glover against the Bishop of Coventry and Lichfield says That the proper and operative word that doth Appropriate is to make the Patron and his Successors Perpetual Parsons and in the Case of Wright against Gilbert Gerrard and Richard Hildersham That the Instrument of Appropriation runs in these words That they and their Successors not their Assigns shall be Parsons or by Periphrasis hold the Church in proper use and the words of Appropriating are that they may hold Ecclesiam Rectoriam in proprios usus as in Grindon's Case and says further that Appropriations cannot endure longer than the Bodies whereunto they were first Appropriate because it carries not only the Glebe and Tithes but doth also give the Spiritual Function makes the Parsons of the Church and supplies Institution and Induction 12. A Prior was seized of the Advowson of a Parsonage the Church being void the Bishop gave him License to hold
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
Form thereof according to the Canon Law what required of the Clerk in order thereto and his Remedy in case the Ordinary denies him such Institution as he may claim by Law 9. Matters of Institution properly cognizable in the Ecclesiastical Courts yet in certain Cases not exclusively to the Common Law or Temporal Jurisdiction 10. Institution gives the Parson jus ad rem not jus in re 11. Whether Institution without Induction works a Plenaâ—ty also whether it be good being Sealed with another Seal and done out of the proper Diocess The difference between the Common Law and the Canon Law as to a Coveat entered before Institution 12. Whether Suit may be in the Ecclesiastical Court to remove an Incumbent after Induction 13. Whether the First-Fruits be due upon the Institution before Induction 14. A Case at Common Law touching Resignation and whether it may be made Conditionally 15. A Case touching the Rightful Patron 's Presentation after the Induction of another by Vsurpation 16. What Induction is and the Bishop's Order therein 17. Induction is a Temporal not Spiritual Act In what manner it is to be executed 18. A Caveat entered in the Life-time of an Incumbent is void 19. In what Case an Induction made by a Minister not resident within the Archdeaconry may be good 20. Institution to a Minor and Vnder-age is meerly void 21. Whether after Induction the Institution may be questioned in the Ecclesiastical Court 22. Whether Incumbency be triable only at Common Law 23. In what Court the validity of Induction is determinable 1. EXamination is that Trial or Probation which the Bishop or Ordinary makes before his Admission of any person to holy Order or to a Benefice touching the qualification of such persons for the same respectively So that there are Two certain times or seasons especially wherein this Examination is required the one before an Admission to Holy Orders the other before an Admission to a Benefice The former of these is expresly enjoyned by the 35th Canon Ecclesiastical whereby it is required That the Bishop before he Admit any person to Holy Orders shall diligently Examine him in the presence of those Ministers that shall assist him at the Imposition of hands or in case of any lawful Impediment of the Bishop then the said Examination shall be carefully performed by the said Ministers provided they be of the Bishops Cathedral Church if conveniently it may otherwise by at least Three sufficient Preachers of the same Diocess And in case any Bishop or Suffragan shall Admit any to Sacred Orders who is not Examined as is before ordained then shall the Archbishop of the Province having notice thereof and being assisted with one Bishop suspend the said Bishop or Suffragan from making either Deacons or Priests for the space of Two years So also when the Clerk is Presented by the Patron of the Advowson before he be Admitted as Clerk to serve the Cure the Ordinary is to Examine him of his Ability For if upon his Examination he be found unable to serve the same or be Criminous the Ordinary may refuse to Admit and Institute him into the Benefice By the Ancient Cannons the Bishop hath Two months time to enquire and inform himself of the sufficiency and quality of every Clerk Presented to him as appears by the Canon in 1 Jac. cap. 95. But by the said Canon it is Ordained That the said Two months shall be abridged to 28 days only Upon sufficient enquiry and Examination the Ordinary may accept or refuse the Clerk Presented and regularly all such matters as are causes of Deprivation are also causes of Refusal but for a Presentce to have another Benefice is no cause of Refusal for that is at his own peril and possibly the Second Benefice is more worth than the former which only is void in such case 2. If the Bishop doth demand of the Clerk his Letters of Orders and Letters Testimonial of his good behaviour and the Clerk requires time to shew them as the space of a week or the like because he hath them not there with him and the Bishop doth thereupon Refuse him to the Church and Presents another the Bishop in such case hath been adjudged to be a Disturber for the Statute of 13 Eliz. doth not compel the Clerk to shew his Orders nor Letters Testimonial of his good Behaviour And so it was Adjudged Yet by the 39th Canon it is by way of Caution expresly Ordained That no Bishop shall Institute any of a Benefice who hath been Ordained by any other Bishop except he first shew unto him his Letters of Orders and bring him a sufficient Testimony of his former good life and behaviour if the Bishop shall require it 3. Examination of the Clerk is to be done at a convenient time within the Six months for the Ordinary cannot refuse to Examine the Clerk during all the Six months and so suffer a Lapse to incurr to himself for by so doing the Patron should lose his Presentation and the Ordinary take advantage of his own wrong But if the Ordinary when the Clerk comes to be examined Sedet circa curam Pastoralem he is not then obliged to leave the business in hand and presently Examine the Clerk but he may appoint a convenient time and place for the Examining of him This Examination by the Diocesan touching the Conversation and Ability of such as were ordained to Peach the Word of God or Presented to a Benefice is enjoyned by the Provincial Constitutions Lindw de Haereticis cap. 1. 4. A Quare Impedit was brought by B. against the Bishop of Rochester who pleads that he claims nothing but as Ordinary and yet pleads further That the Clerk which the Plaintiff Presented had before contracted with the Plaintiff Simmiacally and therefore because he was Simoniacus he refused and that the Church was then void and so remained void whereupon the Plaintiff had a Writ to the Archbishop of Canterbury who returned that before the coming of this Writ viz. 4. July the Church was Full of one Dr. Grant ex Collatione of the said Bishop of Rochester who had Collated by Lapse and this Return was adjudged Insufficient First it is clear That though the Six months pass yet if the Patron Present the Bishop ought to Admit although it be after the Title devolved unto the Metropolitan And it seems also Reason that he ought to Admit though that the Title by Lapse be accrued to the King for he claims it as Supream Ordinary Vid. Dyer 277. quaere But in this Case the Bishop who is the Defendant is bound by the Judgment and the Writ is notwithstanding the claim of the Bishop that he Admit the Clerk for the Bishop ought to execute the Process of the Court It was urged by Serjeant Henden that there is a Canon in Lindwood That if the Church be vacant when the Writ comes to the Bishop that he is bound to execute
ut nostrum de Office Archidiac Somewhat in resemblance to our Tenents by the Verge or such as are Admitted by the Rod in a Court of ancient Demesn But this Institution as practicable with us consists in the Letters of Institution directed from the Bishop or Ordinary in whose Diocess the Church is to the Clerk the Presentee by which he Admits him as lawful Incumbent to that vacant Church whereto he is Presented by the Patron thereof the said Clerk having not only first taken the Oaths of Allegeance and Supremacy with Renunciation of all Foreign Powers and Jurisdictions according to the Laws and Statutes in that behalf provided but also of Canonical Obedience to the Bishop of that Diocess and his Successors and that he hath made no Simoniacal Contract for or concerning the said Presentation whereupon the said Bishop or Ordinary doth by his said Letters of Institution constitute and invest the said Clerk Rector of the Rectory of the said Parochial Church cum cura animarum Parochianorum together with all Rights Priviledges and Emoluments belonging to the same Juribus Consuetudinibâ—s Nostris Estiscopalibus Ecclesiae nostrae Cath c. Dignitate honore in omnibus semper salvis Dioecesis idem significat in effectu quoad Jurisdictionem Ecclesiasticam quod Territorium quoad Jurisdictionem Temporalem Ita Andrae DD. in c. cum Episcopus de Offic. Ord. lib. 6. Dioecesis significat locum Spiritualem sicuti Territorium locum Temporalem Alberic in suo Dict. ver Dioecesis This Institution to a Benefice may not by the 39th Article of the Canons be to any person preordained except he first shew the Bishop his Letters of Orders as also if he require it a Testimonial of his former good life and behaviour Moreover by the Law he is obliged to subscribe the Articles of Religion to Swear Canonical Obedience to the Archbishop of Canterbury and his Successors and to his Diocesan and for his Personal Residence if it be a Vicarage Juram entum de Canonica Obedientia viz. Ego A. B. juro quod praestabo veram Canonicam Obedientiam Episcopo Londinensi ejusque Successoribus in omnibus licitis honestis Sic me Deus adjuvet If a Clerk should kill his Prelate to whom he hath Sworn Canonical Obedience it is Pety Treason Vid. 19 H. 6. 47. b. vid. Stat. 25 E. 3. De Prodic cap. 2. But if the Diocesan notwithstanding the exhibiting the Presentation before him or his Vicar General having power to Institute and notwithstanding Requisition made him by the Clerk Presented in order to Institution shall refuse to Institute and Admit him he may thereof enter his Complaint before the Dean of the Arches who thereupon sends his Letters to the said Bishops which Letters or Rescript is termed Duplex Querela So that as to the substance of the Premisses touching this Subject the practice with us at this day doth well nigh correspond with the Ancient Canon Law whereby it is expresly Ordained lib. 3. Decretal That all Ecclesiastical Livings and Benefices shall be had by Institution to be by the Bishop or his Chancellor or such other as hath Episcopal Jurisdiction positively declaring That without such Institution neither any Benefice is lawfully obtained nor can be lawfully retained Adding withal That Benefices void ought to be granted within Six months after knowledge of the Voidance thereof otherwise the Grant thereof devolves and comes to the Superiour and that he who doth cause or procure himself to be Instituted into a Benefice the Incumbent thereof being alive shall be deposed from his Orders Decretal ibid. 9. Albeit the Cognisance of this matter of Institutions is so properly and connaturally inherent in the Ecclesiastical Jurisdiction yet the Temporal and Common Law it seems hath in some cases took notice thereof for it is there Reported That every Rectory doth consist upon Spiritualty and Temporalty As to the Spiritualty viz. Cura animarum the Presentee is compleat Parson by Institution for when the Bishop upon Examination finds him able then he doth Institute him in these words viz. Instituo te ad tale Beneficium habere Curam animarum of such a Parish Accipe Curam tuam meam And the very Institution to a Benefice the Law understands as an Acceptance and the having of a Benefice as in that Case of Digby where it is held That if a Clerk be Presented Admitted and Instituted to a Benefice with Cure to the value of 8 l. and afterwards and before Induction he accepts of another Benefice with Cure and is Inducted in the same the First Benefice is void by the Statute of 21 H. 8. For the words of the Statute are A Parson having one Benefice with Cure c. Accept and take another c. And he who is Instituted to a Benefice is said to have Accepted a Benefice and to have a Benefice And he that is Instituted may enter into the Glebe-Lands before his Induction and hath Right to have it against any Stranger whatever And albeit by the Civil and Canon Law an Institution granted after a Caveat Entered is void yet by the Common Law it is otherwise 10. By the Institution the Parson hath only Jus ad rem he hath not Jus in re until he hath Induction and therefore if a Prebendary Parson or Vicar after he is Admitted and Instituted and before he be Inducted grant an Annuity out of his Prebend Parsonage or Vicarage and the same be Confirmed by the Patron and Ordinary or by the Dean and Chapter yet this shall not charge the Glebe or the Successor of the Prebendary Parson or Vicar for although by his Institution he hath as aforesaid Jus ad rem yet he hath not Jus in re but the charge in such case shall lie upon the person of the Prebendary Parson or Vicar and not upon the Lands 11. The Church at this day since the Statute of Westm 2. is not Full by Institution of the King and therefore if the King hath a Title by Lapse to Present pro hac vice and he Presents and his Clerk be Instituted but dies before Induction the King in that case may Present again and so it hath been Adjudged Which plainly shews that Institution without Induction doth not work a Plenarty It hath also been held That the Letters of Institution Sealed with another Seal and made out of the Diocess is good Dyer 348. Weston's Case acc enough Of if a Caveat be Entered with a Bishop and he after grant Institution yet the Institution is not void by the Common Law otherwise by the Spiritual Law Notwithstanding what was just now said it is Adjudged in Digbie's Case That a Benefice is taken received and had by Institution only and therefore a Qualification or Dispensation following comes too late So that if a man having one Benefice with Cure by Institution only accept another by Institution only without Dispensation
Law which will not be good if the Institution were not good All which was also the Opinion of the Court in the Case aforesaid for if the Question be whether Parson or no Parson which comprehends Induction it is Triable at the Common Law And although by the Institution the Church if Full against all persons save the King yet he is not compleat Parson till Induction for though he be admitted ad Officium by the Institution yet he is not entitled ad Beneficium till Induction 18. In an Ejectione Firmae brought by the Lessee of Rone Incumbent of the Church of D. it was found by Special Verdict that the King was the true Patron and that Wingfield entered a Coveat in vita Incumbentis he then lying in Extremis scil Caveat Episcopus nè quis admittatur c. nisi Convocatus the said Wingfield the Incumbent dies Naunton a Stranger Presents one Morgan who is Admitted and Instituted afterwards the said Wingfield Presents one Glover who is Instituted and Inducted and afterwards the said Rone procures a Presentation from the King who was Instituted and Inducted And then it came in◠question in the Ecclesiastical Court who had the best Right and there Sentence was given That the First Institution was Irrita Vacua Inanis by reason of the Caveat and then the Church being Full of the Second Incumbent the King was put out of possession and so his Presentation void But it was Adjudged and Resolved by all the Court for Rone For 1 it was Resolved That this Caveat was void because it was in the life of the Incumbent According to the Common Law if a Caveat be entered with the Bishop and he grant Institution afterwards yet it is not void After a Caveat entered Institution is not void by the Common Law Pasch 13 Jac. B. R. Hitching vers Glover Rol. Rep. Cro. par 2. 2. The Church upon the Institution of Morgan was Full against all but the King and so Agreed many times in the Books and then the Presentation of Glover was void by reason of the Super-institution and therefore no obstacle in the way to hinder the Presentation of Rone and therefore Rone had good Right And if the Second Institution be void the Sentence cannot make it good for the Ecclesiastical Court ought to take notice of the Common Law which saith That Ecclesia est plena consulta upon the Institution and the person hath thereby Curam animarum And as Doderidge Justice said He hath by it Officium but Beneficium comes by the Induction And although by the Ecclesiastical Law the Institution may be disannull'd by Sentence yet as Lindwood saith Aliter est in Angl. And Doderidge put a Case out of Dr. Student lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age and he after sue for it in the Spiritual Court they ought to take notice of the Time of Full age as it is used by the Common Law viz. 21. and not of the time of Full age as it is in the Civil Law viz. 25. So in this case for when these Two Laws meet together the Common Law ought to be preferred And when the Parson hath Institution the Archdeacon ought to give him Induction Vid. Dyer 293. Bedingfield's Case cited by Haughton to accord with this Case 19. By the Court That if an Archdeacon make a general Mandate for the Induction of a Parson viz. Vnivers personis Vicariis Clericis Literatis infra Archidiaconat meum ubicunque Constitut That if a Minister or a Preacher who is not resident within the Archdeaconry makes the Induction yet it is good And the Opinion of four Doctors of the Civil Law was shewn in the Court accordingly upon a Special Verdict 21. In the Case of Strange against Foote the sole Point upon the Special Verdict was If one Prideoux being Admitted and Instituted to a Prebendary with the Cure 4 Eliz. be being but Nine years of age notwithstanding the Statute it is meerly void Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue it is a Bastard 21. It is said at the Common Law that after Induction the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court for they say That after Induction the Ecclesiastical Law may not call into question the Institution That by Institution the Church is full against Common persons but not against the King and that by Induction the King may be put out of possession And in the Case between Rowrth and the Bishop of Chester it was Resolved That after an Induction an Institution is not to be examined in the Ecclesiastical Court but by a Quare Impedit only But yet the Justices if they see cause may write to the Bishop to Certifie concerning the Institution 22. Two Patrons pretended Title to Present the one Presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after he there obtained Institution and Induction by the Archbishop Afterwards the Inferior Bishop Instituted and Inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction as was there said for that would determine the Incumbency which is triable at Common Law 23. In a Prohibition prayed to the Ecclesiastical Court the Case appeared to be this viz. Holt was Presented Instituted and Inducted to the Parish-Church of Storinton afterwards Dr. Wickham draws him into the Ecclesiastical Court questioning of him for some matters as touching the validity of his Induction and upon this a Prohibition was by him prayed Williams Justice A Prohibition here in this Case ought to be granted this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question with the determination of which they ought not to intermeddle also matter of Induction and the validity thereof is determinable at the Common Law and not in the Ecclesiastical Court and therefore a Prohibition ought to be granted and the whole Court agreed with him herein and therefore by the Rule of the Court a Prohibition in this Case was granted CHAP. XXV Of Avoidance and Next Avoidance as also of Cession 1. What Avoidance is how Twofold 2. The difference in Law between Avoidance and next Avoidance 3. How many waies Avoidanee may happen what Next Avoidance is The word Avoidance falls under a double Acceptation in Law 4. The Next Avoidance may not be granted by a Letter it cannot be granted but by Deed. 5. Grant of a Next Avoidance by the Son Living the Father Tenant in Tail is void 6. How Avoidance may be according to the Canon Law which
unless he be qualified for Plurality Or if a Dean be made a Bishop yea though a Dean or Parson in England be made a Bishop in Ireland as aforesaid his Benefice becomes void as was Resolved in Evans and Askwith's Case for that the Constitution or Council which makes it void is general and not limited to any place And so it was also Resolved 3 E. 3. Fitz. Trial and so adjudged 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring 12. The case may so happen that albeit a man having a Benefice with Cure of Souls accept another and be Instituted and Inducted into the same yet his First Benefice shall not be void by Cession though the Benefices be incompatible though there be no Dispensation in the case and although himself be not otherwise qualified for Pluralities For it hath been Resolved That if a man having one Benefice accept another and be Instituted and Inducted into the Second and then read not his Articles that yet the First Benefice voids not by Cession because the Second is as not taken Notwithstanding it cannot be denied but that where a man having a Benefice with Cure of Souls above the value of Eight pounds per Ann. doth take another with Cure and is thereto Admitted Instituted and Inducted the First Benefice without Dispensation becomes void as in the Case of the King against George Lord Archbishop of Canterbury In which Case it was held That the Church was absolutely void in facto jure by taking of a Second Benefice and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto jure quoad the Patron and all others Sed Q. whether void as to an Usurper for in some cases a Benefice may be void as to some persons and not void as to others As in the Case of Simony whereby as well as by Cession a Church becomes void yet in that case although it be void to all men quorum interest to the King and his Incumbent and all that claim under him and to the Parishioners to the Ordinary and to the like yet according to Sir Hen. Hobart Chief Justice it is not void to an Usurper for a man without Right cannot Present unto it as to a Church void nor the Ordinary so discharge himself if he receive the Clerk of an Usurper for he is none of them quorum interest Pasch 14 Jac. Rot. 1026. Case of Winchcombe against the Bishop of Winchester and Rich. Pulleston Hob. Rep. 13. If the Next Avoidance be granted to Three persons and after the Church become void and then Two of the Three Present the Third Grantee being a Clerk in this case the Presentation is good and the Bishop may not refuse him inasmuch as all Three were Joynt-tenants thereof by the Grant and only Two of them joyn in the Presentment for that the Third person cannot Present himself but if only one of these Three Grantees Present the Third the Bishop hath power to refuse him And if an Incumbent having the Advowson do Devise the Next Avoidance it seems it is good Trin. 13 Jac. B. R. Harris vers Austen Rol. Rep. 14. In Holland's Case it was Resolved That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure accept another with Cure the First was void but this was no Avoidance by the Common Law but by Constitution of the Pope of which the Patron might take Notice if he would and Present without Deprivation But because the Avoidance accrued by the Ecclesiastical Law no Lapse incurred without Notice as upon a Deprivation or Resignation so that the Church was void for the benefit of the Prtron not for his disadvantage But now if the First Benefice be of the value of Eight pounds per annum the Patron at his peril ought to Present for to an Avoidance by Parliament every one is party but if not of Eight pounds it is void by the Ecclesiastical Law of which he needs not take Notice 15. In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance and that J. S. died and made his Executor who Presented the Plantiff to the Church being void Upon Non concessit it was found That A. granted to J. S. durante vita ipsius J. S. primam proximam Advocationem and that he died before the Church became void Whether this was an absolute Grant of the Next Avoidance as is pretended was the Question And Resolved it was not but it is limited to him to Present to the Advowson if it becomes void during his life and not that otherwise it should go to his Executors and therefore it was Adjudged against the Defendant 16. The Incumbent of a Church purchased the Advowson thereof in Fee and devised that his Executor should Present after his decease and devised the Inheritance to another in Fee It was said the devise of the Next Avoidance was void because when his Will should take effect the Church was instantly void But the Court held the devise was good for the Law is so and it shall be good according to the intent of the party expressed in his will The Grant of the Next Avoidance during the Avoidance is void in Law Steephens and Clark's Case More 's Reports 17. In a Quare Impedit the Case was The Corporation of B. being seized of an Advowson granted the Next Avoidance to J. S. and afterward granted primam proximam Advocationem to the Earl of B. who granted it to the Plaintiff The Church became void J. S. Presented his Clerk who was Inducted and then the Church became void again It was Resolved that the Second Grant was void so as the Plaintiff had no Title for when he had granted primam proximam Advocationem to one he had not Authority to grant it after to another but if the First Grant had been lost so as it could not have been pleaded there perhaps the Second Grand had been good 18. In a Quare Impedit the Case was H. being Incumbent of a Church was Created a Bishop in Ireland and the Queen Presented the Defendant It was the Opinion of the Justices That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance and that the Queen should have it by her Prerogative But if the Queen doth not take the benefit of the First Avoidance but suffers a Stranger to Present and the Presentee dies she may not have Prerogative to Present to the Second Avoidance 19. The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void It was Adjudged in this Case That B. may Present and upon Disturbance have a Quare Impedit in his own Name
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
it shall be lawful for the King's Chaplains to whom it shall please the King to give any Benefices or Spiritual Promotions to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the Question was Whether by this last Proviso a Chaplain of the King having a Benefice with Cure above the value of eight pounds per Annum of the Presentation of a Common person might accept another Benefice with Cure over the value of eight pounds also of the Presentation of the King without Dispensationâ— The words of the Statute by which the first Church is made void are That if any Parson having one Benefice with Cure of Souls being of the yearly value of eight pounds or above accept or take any other with Cure of Souls and be Instituted and Inducted into possession of the same that then and immediately after such possession had thereof the first Benefice â—hall be adjudged in the Law to be void Vide Holland's Case 4 Co. 75. â— This Case was not argued but the point only opened by Dodesidge Serjeant of the King for the Plaintiff 17. A. was Parson of M. which was a Benefice with Cure of the value of eight pounds and was Chaplain to the Earl of S. and obtained a Dispensation to accept of another Benefice modo sit within Ten miles of the former which was confirmed under the Great Seal He accepted of another Benefice Seventeen miles distant from the first and was Instituted and Inducted both Benefices being within the Diocess of Lincoln The Archbishop in his Visitation Inhibited the Bishop of Lincoln not to execute any Jurisdiction during his Visitation It was found that the Patron had neglected to present to the first Benefice within the Six months and that the Bishop of Lincoln within the second Six months Collated one to the first Benefice who was Admitted and Inducted The points were Whether 1 Si modo was a Condition in this Licence and made the first Benefice void when he took the Second 2 Whether the Bishop Collating during the time of the Archbishop's Visitation and after his Inhibition was good Resolved That in the principal Case Si modo should not be taken for a Condition and that the Benefice should not be void quoad the Patron as the taking of a second Benefice is by the Statute of 21 H. 8. and then the second point of the Collation by the Bishop in the time of the Visitation and also the Inhibition will not be material 18. Quare Impedit pretending the Church void for Plurality The Defendant said he was Chaplain to the Lord M. and pleaded a Dispensation from the Archbishop of Canterbury and Confirmation thereof In the Letters of Dispensation the words were mentioning the two Benefice to be of small value unimus anneximus incorporamus the second Benefice to the first without the word of Dispensamus thereof The Court held it a sufficient Dispensation for it is not of necessity to have the word Dispensamus and if the Circumstances prove it it is sufficient 19. In the Case between Whetstone and Higford it was held by the Justices That if the Queen retains a Chaplain by word only yet he is such a person as may have a Plurality within the Statute of 21 H. 8. of Pluralities and is a person able to make a Lease And in a Quare Impedit it was Resolved That if there be two Parsons of one Church and each of them hath the entire Cure of the Parish and both the Benefices be of the value of eight pounds and the one dieth and the other be presented it is a Plurality within the Statute of 21 H. 8. 20. The Countess of K. being a Widow retained two Chaplains and after retained a third the third purchased a Dispensation to have two Benefices with Cure and he was advanced accordingly whereof the first was above the value of eight pounds It was adjudged in this Case and afterwards affirmed in a Writ of Error That he was not lawfully qualified within the Statute of 21 H. 8. by which the first Benefice by acceptance of a second was void and that the Title did accrue to the Queen to present for it was Resolved That the Statute gives power to a Countess to retain two Chaplains and no more and when the Statute is executed she cannot retain a third Chaplain and the Retainer of the third cannot divest the capacity of Dispensation which was vested by her Retainer in the two first Chaplains 21. A Parson having a Benefice of the value of eight pounds took a second Benefice without Dispensation being above the value of eight pounds The Court took no consideration of the Statute of 26 H. 8. and the value there mentioned but regarded only the true value of the Benefice 22. For Title to an Avoidance the Statute of 21 H. 8. was pleaded touching the taking of a second Benefice with Cure Issue was upon the Induction by which it seemed to be admitted That Admission and Institution did not make the first Benefice void without Induction 23. Quare Impedit brought the Defendant pleaded the Statute of 21 H. 8. cap. 13. of Pluralities that the last Incumbent had a Benefice with Cure of the value of eight pounds and took another Benefice and was Inducted 1 Eliz. upon which the Queen did present the Defendant by Lapse The Plaintiff shewed the Proviso in the Statute of 25 H. 8. cap. 21. That Chaplains qualified might purchase Dispensations and take two Benefices and that 1 Eliz. before the Parliament he purchased a Dispensation from the Pope and after he took the second Benefice and died The Question was Whether before the Statute of 25 H. 8. the Pope might grant Dispensations It was Resolved he could not for that the King 's of England had been Sovereigns within their Realms of the Spiritualties and the Justices held That the Dispensation in question was made 1 Eliz and so out of the Statute of 25 H. 8. cap. 21. and that this Dispensation to retain a second Benefice was against the Statute of 21 H. 8. cap. 13. 24. The Countess of K. had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was Adjudged he was lawful Chaplain for the Patent is not of necessity but only in case where he hath cause to shew it and here he hath no cause to shew it because her Retainer was good without a Patent 25. The Case between Robins Gerrard and Prince was in effect this viz. A man is Admitted Instituted and Inducted into a Benefice with Cure of the value of eight pounds and afterwards the King presents him to the Church of D. which is a Benefice with Cure and he is Admitted and Instituted The Archbishop grants him Letters of Dispensation for Plurality which Letter
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
been due to the Pope de jure Divino speeially for that Anthony de Becke for whom the Prescription was made was a Reteiner to the Court of Rome and made Bishop of Norwich by the Pope Vid. Co. Instit par 4. cap. 14. 2. It was an old Observation and of no less truth than Antiquity that there never was any Invention that ever brought more Treasure to the Bishop of Rome than this of Annates which is of far greater Antiquity than some Modern Writers suppose so Polydore Virgil. Pol. Virg. de invent rerum lib. 8. cap. 2. Et Annates more suo appellant Primos fructus unius Anni Sacerdotii vacantis aut dimidiam eorum partem Historians do not agree what Pope first imposed First-Fruits Wals An. Do. 1316. Trivet Ranulphus Cistrensis lib. 7. c. 42. Polyd. Virg. ubi supra Platina Fox c. This Tribute or Revenue long since when the Bishop of Rome had not such large possessions as now he hath yet at vast expence and charge to uphold and maintain his Dignity was gradually by little and little imposed on such vacant Benefices as himself conferred and bestowed which as Hostiensis contemporary with P. Alex. the Foâ—rth doth affirm was often complained of as a very great Grievance so that after this Labarell declared in the Council at Vienna That Clement the Fifth who was made Pope in the year 1305. forbad the receiving thereof and that laying the same aside the Twentieth part of the Sacerdotal Revenues should instead thereof be annually paid to the Bishop of Rome but this not taking effect the Pope so retained the said Annates to his Exchequer as that to this day it remains one of the considerablest parts of his Revenue Polyd. Virg. ubi supr 3. The Canonist Gammarus in favour of the Apostolick See asserts that Annates are very justly required by the Pope pro Conservando decenti statu and compares it to Aaron the High Priest's receiving the Tithe of Tithes the Tithe of such Tithes as were given to the other Priests adding withal that Annates are of very great Antiquity Gammar in Extr. Julii 2. de Simon Papae Elect. nu 253. in Repet Jur. Can. To. 6. par 2. fo 54. as appears by the Concessions of Jo. Andâ—aeas and of Hostiensis Jo. Andr. Hostiens in c. inter caetera de Offic. Ordin the which Tho. Aquinas doth not deny saying That it is but consonant to Natural reason that he qui omnium curam habet de Communi alatur and thence concludes That the Pope may require Tithes and Annates from the Clergy Aquin. 2. 2. quaest 87. artic 4. As to the Original of these Annates Platina and Blondus report them to have been first exacted by Pope Boniface the Ninth Others assert it to be in the time of Pope John the Two and twentieth which was above Seventy years before that Boniface But Johannes Eccius in his Enchiridion against the Lutherans says that both Blondus Platina and Gravaminus whom he there nick-names Ecclesiae Consarcinatores were all in an Error in ascribing the original of Annates to this Boniface or that John for says he quoting Johannes Andâ—aeas for his Author in the Council at Vienna An. 1311. whereof P. Clement the Fifth was President which was long before Boniface or John the 22d there was a Debate concerning Annates Jo. Andraeas ubi supr Gam ubi supr But their supposing Clement the Fifth to have been after John the 22d was the ground or reason of their Error 4. Aumone or Frank Almoign is the same which we call Libera Eleemosyna or Free Alms whence that Tenure is known by the Name Tenure in Aumone which is a Tenure by Divine Service It is a certain Tenure or Title of Lands at the Common Law as when Lands or Tenements are freely given in the way of Alms to some Church or Religious House upon this condition or consideration That Divine Service shall be offered and Prayers made pro bono animae Donantis or the like So that this Aumone or Frank Almoign is no other than a Tenure or Title of Lands or Tenements bestowed upon God by giving them to such as devote themselves to the Service of God for pure and perpetual Alms whence the Feoffors or Donors cannot demand any Terrestrial Service from the Feoffors so long as the said Lands and Tenements remain in their hands With this agrees the Grand Customary of Normandy cap. 23. and whereof Bracton writes at large But Britton makes another kind of this Land which is given in Alms but not in Free Alms because the Tenants in this are obliged to certain Services to the Feoffor 5. In the Case of Dennis against Drake it was said That if a man be Instituted to a Benefice he ought to pay the First-Fruits before Induction by the Statute but by the Common Law it was otherwise for he is not to have the Temporalties until Induction and therefore he could not pay the First-Fruits But another person cannot be Presented to this Benefice during the continuance of the first Institution And an Institution to a second Benefice is a present Avoidance of the first 6. Decimae id est Tenths of Spiritualties were perpetual and paid to the Pope till Pope Vrban gave them to R. 2. to aid him against Charles King of France and others who supported Clement the Seventh against him And 5 H. 3. by the Pope's Bulls all Tenths were paid to H 3. for years These were given to the King 26 H. 8. cap. 3. Vid. Lambert de prist Angl. c. fo 128. cap. 10. St. ibid. inter Leges Inae fo 78. cap. 4. CHAP. XXXI Of Altarage 1. The genuine signification of the word Altarage what is comprehended under that word Two Cases at the Common Law touching Altarage 2. A severe Canon made by Cardinal Otho against the gross abuse of Altarage an Artifice to defeat that Canon And whether Altarages may be let to Farm 3. Whether Tithe-Wool will pass by the word Altaragium 4. The word Altaragium shall be expounded according to the use and eugome of the place 5. Whether Tithe-wood may pass to the Vicar by the word Altaragium 1. ALtarage or Altaragium a word though now somewhat obsolete yet in signification of Ecclesiastical cognizance and in the intent thereof practicable at this day Mr. Blount in his Nomo-Lexicon takes notice thereof as a word which comprehends not only the Offerings made upon the Altar but also all the profit which accrues to the Priest by reason of the Altar Obventio Altaris And for further proof and illustration of this matter there cites a President out of the Orders and Decrees of the Exchequer in the Reign of Queen Elizabeth to this effect That upon hearing of the Matter between R. T. Vicar of West-Haddon and E. Andrewes it was ordered That the said Vicar should have by reason of the words Altaragium cum manso Competenti contained in the
tithable no Tithes of Pasture of Milch-kine grown dry unless kept for Sale 45. Composition for Tithes for life not good without Deed. 46. Estovers burnt in the house not Tithable The Hearth-peny good by Prescription 47. A Composition for Tithes de anno in annum 48. The Modus decimandi is Suable in the Ecclesiastical Court as well as the Tithe it self 49. Proâ—ibition in case of Libel to prove in perpet rei memo 50. Custome of Tithe-Grass Cocks as to both Mathes 51. In a Prohibition upon matter at Common Law and not within the Stat. of 2 E. 6. 13. the Suggestion need not be proved in Six months 52. Tithe-Hay of Headlands Custome and Prescription 53. Tithe-Hay of Heathlands also Tithe of Pidgeons 54. Minute Tithes to the Vicar 55. Tithes to Parson and Vicar may amount but to one Action 56. The Curate may not Prescribe in Tithes against the Parson 57. Curates may sue for Pensions in the Ecclesiastical Court 58. By the Civil Law the Parson to have Notice when Tithes set out 59. Action on the Case against a Compounder for Tithes Suing in the Ecclesiastical Court 60. Modus decimandi by one may hold as to others for a Prohibition 61. Composition for one year good without Deed not if for years 62. Tithe-Hasel Holly Willow Whitethorn Whether the Parishioner shall preserve the Parsons Tithe for him 63. Testis Singularis not sufficient to prove payment of Tithes in the Ecclesiastical Court 64. Composition for Tithes and a Prohibition thereon 65. Tithes taken away by a Stranger after they are set out the Parsons remedy lies at the Common Law 66. In what Case no Costs upon failure of Proof of the Suggestion within the Six months 67. Modus Decimandi may be Sued for in the Ecclesiastical Court where if denied they are to surcease 68. Custome in Cornwall touching Tithes of Sea-fâ—sh 69. In what Case an Agreement for Tithes for years may be good without Deed. 70. In what Court Tithes of Rents in London may be Sued 71. A Collector of Tithes cannot License a Parishioner to carry away his Corn. 72. Whether Debt lies for Treble dammages upon Fraudulent setting forth of Tithes 73. Tithes whether they belong to the Parson or the Vicar cognizable in the Ecclesâ—astical Court where the Right of Tithes is confessed 74. The Ecclesiastical Court not Judges of the Bounds of a Parish 75. Modus Decimandi in reference to a Park 76. A Frâ—udulent setting out of Tithes is no setting them out at all 77. The Vicar shall have Tithe of Rape-Seed being within a Prescription though a new thing in England 78. What the word Garba signifies 79. Whether Wood in its own nature be great Tithes and in what case it shall pass by the words de minutis Decimis 80. If two Titles of Tithes unite in one person there need but one Action for them 81. A Parson may not sett a Lease for years of Tithes per parol only 82. If a Parson be disturbed in carrying away his Tithes seâ— out his Remedy lies properly in the Ecclesiastical Court 1. TITHES Dismes Decimae probably an abbreviation from the Saxon Teoâ—unâ— or Tithing properly Decuria in that Language Lamb. Expl. of Sax. words verb. Deâ—uria That the Apostles and Elders at Jerusalem were competently supplied by the Contributions of the Jewish Proselytes is very conjecturable in that they sold their possessions and brought the price thereof and laid it down at the Apostles feet and such as then planted the Gospel and labourâ—â— in the Word and Doctrine had their maintenance by the Contributions of their Converts Vid. Concil Grang. Can. 7 8. And St. Cyprian writing to his Church of Carthage Epist 33 34. to receive Aurelius and Cellerinus Confessors saith in Epist 34. Presbyterii honorem designasse nos ilâ—is jam sciatis ut sportulis iisdem cum Presbyteris honorentur Divisiones Mensurnas aequatis quantitatibus partiantur Know you that we have already designed to them the Dignity of Presbytership that they might be honoured with such allowances as Presbyters have and receive equal shares in the Monthly Dividends So that Sportulae were the allowances which in this Infancy of the Gospel the Presbyters had out of the Contributions of the Converts And the Fratres Sportulantes mentioned by him in Epist 66. were the Clergy which received such allowance These Converts after the Conversion of Constantine the Emperour many of them being Governours and Nobles settled great and large Demesn-Lands upon those who Converted them and that according to Mr. Seldens conjecture the first Oratories or places of Publick Worship were built in the Lands bestowed on them which first Oratories were called Cathedrals Sees or Seats from their constant Residence thereon That the Christian Church even in times of Persecution laid claim to Tithes as due Jure Divino is partly confessed by Mr. Selden himself citing some passages in the Ancient Fathers to that purpose But when the Empire became Christian then the Christian Clergy did more earnestly press the Donation of Tithes and in process of time they prevailed not only by Preaching and Canons but by the Edicts of Emperours and Kings to have Tithes given to the Church And it appears that the Roman Empire where-ever it did reduce any Conquered Countrey in formam Provinciae appointed the Farmers of the Customes to collect among other Impositions the Tenths of the Tenants of the Empires that is of all who occupied any Land in the Conquered Province either as immediate Tenants to the Empire or as Sub-Tenants under them The Publicans therefore who collected these Tributes were called Decumani as Mr. Selden pag. 39. of his History of Tithes doth observe out of Appian But whether these Tenths were received by the Senate or Emperours upon a Civil or Religious account is not liquid and clear For the Emperours alwaies till Christianity came in nay Constantine and other Emperours even after Christianity was received till Gratian's time as the Noble and Learned Du-plessy in his Mystery of Iniquity observes out of Zosimen continued the chief Pontifice or High-Priesthood in their own persons And as touching us here in England Dr. Heylin P. H. Treleyny in his Treatise touching Tithes p. 3. saith Tithes are not given to the Ministers by the People for Sr. Ed. Coke on Litt. Tenures lib. 1. c. 9. Sect. 73. fo 58. asserteth That it appears by the Laws and Ordinances of Ancient Kings and especially of King Alfred That the first Kings of this Realm had all the Lands of England in Demesn and Les Grandé Mannors Royalties they reserved to themselves and with the Remnant they for the defence of the Realm enfâ—offed the Barons of the Realm with such Jurisdiction as the Court Baron now hath And at this time when all the Lands of England were the King Demesns that Ethelwolph the Second Monarch of the Saxon race his Father Egbert being the first which brought the former Heptarchy under one
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
whole Court of Kings Bench Mich. 5 Jac. and hath many times been Ruled That if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by Word it is not good by the opinion of Flemming Chief Justice because iâ— amounts to a Lease and he held strongly That Tithes cannot be Leased for years without a Deed. 82. Upon the Statute of 2 Ed. 6. cap. 13. â—or Setting out of Tithes in a Prohibition to stay proceedings by a Parson in a Suit in the Ecclesiastical Court against one of his Parish for hindering of him in his way in the Carriage of his Tithes The whole Court agreed in this That if a Parson hath his usual way stop'd that so he cannot come to take away his Tithes being set out for him he may well sue for this in the Ecclesiastical Court and there have his remedy But if the Question be whether the Parson be of right to have a way viz. one way or another this is Triable by the Common Law and not in the Ecclesiastical Court but if the Parson have a certain Way granted to him and set out by the Common Law if he be at any time disturbed or hindered by any of his Parishioners or by any other in the use of this his Way he may then in such case well sue in the Ecclesiastical Court for his remedy And the words of the Statute of 2 Ed. 6. cap. 13. are That if any Parson be disturbed stopped or hindered in the carrying away of his Tithes so that the Tithe comes to be lost hurt or impaired in this case he may sue in the Ecclesiastical Court for his Remedy and upon due proof there made thereof he shall recover double value of the Tithe so taken or lost besides his cost and charges of Suit But because in this principal Case the Parson sued in the Ecclesiastical Court for the Right of his Way whether he was to have that Way or not which belonged properly to the Common Law and not Triable there in the Ecclesiastical Court for this cause the Court granted a Prohibition to stay their proceedings in the Ecclesiastical Court A ABby-Lands were five waies priviledged or discharged of Tithes viz. by Composition Bull or Canon Order Prescription and Unity of possession of Parsonage and Land time out of mind together without payment of Tithes It is supposed that no Land which belonged to Abbots Priors c. is at this day discharged of Tithes but such as came to the Crown by the Statute of 31 H. 8. c. 13. All Monasteries under Two hundred pounds per Aâ— were to be dissolved by the Statute of 27 H. 8. But those of 200 l. per Ann. or upwards not till the 31 of H. 8. The Unity aforesaid or perpetual Unity is where the Abbot Prior c. time out of mind have been seized of the Lands out of which the Tithes arise and also of the Rectory of the Parish in which the Lands lie Which Unity as to a discharge of Tithes must have these four properties 1 It must be Justa as to the Title 2 Perpetua or time out of mind 3 Aequalis that is a Fee-simple both of the Lands and Rectory 4 Libera or Free from the payment of all manner of Tithes whatsoever In a Case where an Abbot held a Pâ—rsonage Impropriate which was discharged of Tithes and had purchased Lands so that the Tithes were suspended in the hands of the Abbot and afterwards the Possessions of the Abbot coming to the King by the Statute of 31 H. 8. The Question was Whether the Lands so purchased by the Abbot before his Surrender to the King were discharged of the Tithes It was the Opinion of Mr. Plowden in that case that they were not discharged for that no Lands were discharged but such as were lawfully discharged by right Composition or other lawful thing and in the said Case the Lands were not discharged in Right but suspended only during the time that they were in the Abbots hands Acorns or Mast of Oak shall pay Tithe for they are of Annual increase as in Lifoâ—d's Case These Acorns or Mast are known in the Law by the word Pannagium so Lindwood Pannagium est pastur Porcorum in Nemoribus Sylvis ut puta de glandibus aliis fructâ—bus arbâ—rum Sylvestrium quarum fructus aliter non solent colligi Lindw de Decim c. Sancta Ecclesia verb. Pannagiis And Mr. Skene de verb Sign defines this to be a Duty given to the King for the pasturage of Swine in his Forrests Also Pannagium is taken for the money which is paid for the Pannage it self as appears by the Statute of Charta de Foresta cap. 90. Vnusque liber homo c. Aftermoath or Second Moath Of this Tithes shall be paid de jure unless there be a Special Prescription of Discharge by paying the Tithes out of the first Moath and then it shall be discharged But if a man pay Tithe-Hay no Tithes ought to be paid dâ— jure afterwards for the pasture of the same Land for the same year for he shall not pay Tithes twice in one year for the same thing for that the After-pasture is but the Reliques of Hay whereof he had paid Tithes before Nor shall Tithes be paid for Agistments in such After-grass In Johnson and Awberie's Case it was Resolved that Tithes are not to be paid for the After-pasture of Land nor for Rakings of Corn And where in Awberies Case Suit was in the Ecclesiastical Court for the Tithe of the After-mowings of Grass anâ— upon a Surmize That the Occupiers of the Land had used to make the first Cutting of the Grass into Cocks for Hay and to pay the Tenth Cock thereof in satisfaction of the First and After-mowings a Prohibition was awarded So that After-grass or After-pasture or Aftermoath do not pay Tithes where they have paid before of the Grass of the same ground the same year save where by Covin to defraud the Parson more Grass is left standing than was wont to be or is there usual Nor is the Herbage of Cattel which eat up that Grass Tithable unless there be some Fraud in the case Notwithstanding the Premisses although the Aftermoath be not Tithable where the Owner at his own costs charges and labour made the first Grass into Hay yet Q. whether it may not be otherwise where the Owner doth no more than cut down the Grass of the first Moath Agistment that is a taking into Grass the Cattel of Strangers within the Parish where the Grass grows this is Tithable and regularly by the Owner or Tenants of the Land not of the Cattel unless the Custome makes it Tithable by the Stranger Heretofore there was not any Tithe paid for this Agistment but now the Law is taken to be otherwise And is
Prescription de non Decimando as to that is good No Tithes shall be paid de jure for Cole Hill 14 Jac. B. R. per Houghton Common of Estovers or the Wood which a man burns in his house doth not pay Tithes Composition Real is one of the waies or means whereby Tithes may be discharged It is where the Incumbent Patron and Ordinary by Deed or Fine do agree that such Lands shall for ever be freed and discharged of all manner of Tithes paying an Annual payment or doing some other thing for the profit or advantage of that Parson or Vicar to whom the Tithes did belong from which Compositions all Prescriptions de Modo Decimandi have or should have had their Original But these Real Compositions so as to oblige the Successor of the Parson or Vicar that made the same seem now to be restrained by the Statute of 13 Eliz. cap. 10. whereby they are prohibited from making any Grant for above 21 years or three Lives and that with the accustomed yearly Rent reserved And if the Parson or Vicar make any Composition with his Parishioner without his Patron and Ordinary it shall bind only for the Parsons life and during his Incumbency This Composition is either between Parson and Parishioner or inter Clericos if it be between Parson and Parishioner and it be touching Tithes past the Composition is good though it were without any Consideration at all but if it be touching Tithes to come it may be good as to a payment of Tithes only in part but not good as to a non-payment of any Tithes at all nor is it good in part without the Bishops approbation and confirmation If the Composition be inter Clericos and the Tithes be Personal Tithes it holdeth not but if they be Predial Tithes the Composition holdeth the Approbation of the Bishop of the Diocess being thereunto had So that Composition for the remitting or entirely taking away of Tithes it not good in Law but a Composition with the Parson or Vicar to have but the Thirteenth Sheaf for his Tithe was held to be a good Composition and should bind the Parson Composition may likewise prevent the payment of Tithes in kind and if it be made with a Parson or Vicar to pay a Modus Decimandi which hath continued time out of mind Custome being equivalent to Law it is good and shall bind the Parson and his Successors and although a Modus Decimandi cannot begin at this day but must be by Prescription yet a Composition may be made which shall bind during the life of him that made it The Case was A Vicar did contract with his Parishioner to pay so much for increase of Tithes and died his Successor sued in the Ecclesiastical Court for them A Prohibition in this case was granted by the Court The words of the Contract were inter se convenerunt It was holden that this was not a Real Composition although that the Bishop did call it Realis Compositio for his calling of it so doth not alter the nature of it but it remains a Personal Contract and so shall not bind his Successor although it were confirmed by the Bishop It was said by Mallet Justice in this case A Real Contract although it be made between Spiritual persons and of Spiritual things is only questionable at the Common Law Composition shall bind during the life of him that made it though not his Successors Coneys taken in a Warren shall pay Tithes yet they are not Predial but Personal Tithes Sed Q. whether Tithes shall be paid of them because Berkley Justice They are not Tithable but by Custome 15 Car. B. R. For no Tithes de jure without a Custome ought to be paid for them for they are Ferae naturae Trin. 8. Car. B. R. Worden Bennet's Case after a Prohibition granted a Consultation denied per Curiam for the reason aforesaid Pasch 13 Car. B. R. Sir Jo. Brewen Dr. Bradish's Case per Cur. a Prohibition granted and Hill 13 Car. B. Vincent and Tutt's Case Prohibition granted and for Prohibition pleaded by the Parson to have them by Prescription Mich. 14 Car. B. R. Williams and Wilcock's Case Or if a man steals Coneys out of a Warren he shall pay no Tithes of them because the Law gives him no property in them nor shall the right Owner pay any Tithes of them because he hath no profit by them Corn pays a Predial Tithe as that which comes partly by the Industry of Man and partly of the Earth Mich. 8 Jac. C. B. Magna Charta 649. And if a Custome be alledged That the Parson shall have but the Tenth Sheaf of Wheat for all the Tithes of all manner of Corn and Grain this is no good Custome Yet Corn of all kinds fowed is Tithable according to the Custome of the place and is commonly Tithed by the Tenth Shock Cock or Sheaf where the Custome of the place is not otherwise but not to put the Parsons Tenth up on end in Shocks unless the Custome of the place be so And if the Owner will not cut his Corn before it be spoiled the Parson is without remedy And if he doth change the Corn or Grain fowed in the same ground such change of the Corn so sowed doth change the Tithe to the same kind of that Grain And if a man pay Tithe of Corn he shall not pay any Tithe for the Stubble which grew the same year on that Land Hill 6 Jac. B. pl. 13. Smiths Case per Cur. Case ibid. Pasch 7 Jac. per Cur. Mich. 9 Jac. Baxter Hope for the Aftergrass 2 H. 4. Rot. Par. nu 93. No Tithes for the Agistment in such After-pasture And if the Parson hath Tithes of Corn one year and the Land be left without Seed the next year that so it may be Plowed and made ready for Seed the the third year no Tithes shall be paid the second for by lying fresh the Land is the better and the Parson will have the better Tithes the third year Pasch 7 Jac. Smith's Case By the Statute of 2 Ed. 6. cap. 13. the Parson or Vicar is priviledged to come upon the Land to see the Tithes set forth For by the said Statute it is Enacted That at the Tithing time of Predial Tithes it shall be lawful for any to whom Tithes are payable or for his Deputy or Servant to see the said Tithes to be set forth and severed from the Nine parts and quietly to take and carry them away And as the Parsons Rights are hereby secured from the danger of having his Predial Tithes subtracted so likewise the Law hath provided nor only for the prevention of his being defrauded therein and for his quiet removal and carrying the same away but also for an open free and unmolested way and passage through which to carry the same away as appears by Halsey's Case The Case was
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
Yet if these be cut under 21 years growth they are accuonted Sylva Caedua and ought to pay Tithes But the Loppings of great Oaks Ashes c. though the Lops be under twenty years growth shall not pay Tithes being priviledg'd by the Bodies nor are the Shoots and Underwood growing from the Roots and Stocks of such Timber-Trees Tithable or from the Roots and Stocks of Trees above the growth of 20 years which have been felled Vid. Trees Wood Vnderwoods and Timber T TAres or Green Tares cut before they are Ripe or mowed when they are green for the Feeding of Cattel when Suit hath been commenced in the Ecclesiastical Court for Tithes thereof a Prohibition hath been granted upon a Suggestion grounded upon special Customes that no Tithes ought to be paid for the same Fetches Tares and other course Grain eaten only by the Cattel which do the Husbandry-work in the place pay no Tithe except there be a Special Custome for it Lane 16. Notwithstanding whether they are Tithable or not if cut for Horses is a Question for where upon a Libel in the Ecclesiastical Court for Tithes of Green Tares cut for seeding of Labouring Horses it was moved for a Prohibition it was not granted upon such a general Suggestion it being no ground for it Otherwise upon the Custome of the Parish That no Tithe hath been paid in such case It was Mead and Thurman's Case which is elsewhere Reported That a Prohibition was prayed upon a Suggestion of this Custome That for Tares cut or mowen before they are ripe and given to Plough-Cattel Tithes ought not to be paid And another Custome for Headlands sown with Corn used to be fed with Plough-Cattel or mowed or cut for that purpose that the Owners should be discharged of Tithes It was holden by the Court That this Suggestion grounded upon a Special Custome was good and the parties being sued for the Tithes of the Premisses in the Sp. Court the Court granted a Prohibition Timber-Trees that have been usually Top'd and Lop'd such Toppings and Loppings are not Tithable for the Law that doth priviledge the Body of the Tree doth priviledge also the Branches thereof The Law is the same if the Tree become Rotten Dry and Barren Timber-Trees in all Counties as Oak Ash and Elm after twenty years growth are not as aforesaid Tithable Also Beech Horn-Bean Maple Asp and Hasel may in some Counties where there is scarcity of other Timber and an Usage accordingly be computed as Timber-Trees and not Tithaable But any Timber-Wood if it be cut within twenty years after the first planting thereof is Tithable But on the other hand Timber-Trees once discharged of Tithes are for ever discharged and quit of Tithes though rotten dead Whether a Parson may Prescribe to have Tithes of great Trees contrary to the Common Law and the Statute of Sylva Caedua Quaere 9 H. 6. 56. It is said by Belknap That of great Trees or of Timber-Trees Tithe was never demanded and that by the Statute of 43 Ed. 3. But vid. Coke 11. par in Liford's Case the words in that Statute and in the Book of 50 E. 3. viz. Great Trees must be intended Oaks Ash and Elms of all which as well before the said Statute as since if they were of twenty years growth it seems by the Common Law Tithes were not to be paid because of their own nature they were only accounted Timber-Trees and fit for Building But of Sallows Willows Maples and the like although they be above twenty years growth yet Tithes thereof shall be paid Of other Trees of the age of twenty years growth or upwards which are Timber-Trees Tithes shall not be paid but of Sylva Caedua and Underwoods Tithes shall be paid but not of great Trees by Statute In a Prohibition the Question was Whether Trees which were above the age of 20 years growth become Rotten and be cut down for Fewel shall pay Tithe or not It was the Opinion of the Court that they shall not pay Tithes for that Tithes are payable for all increase and not for a decrease and being priviledged in regard of their high nature this Priviledge shall not be lost in regard of its decrease So if Timber-Trees become Arida Sicca c. yet because sometimes it was an Inheritance which was discharged of Tithes although it now become Dotard Tithe shall not be paid of the same for the quality remaineth though the estate of the Tree be altered If a Tree under the growth of 20 years be Top'd and the Body thereof suffered to grow till it be past that age and afterwards the Boughs being grown out again are Top'd and Lop'd again Tithes thereof shall not be paid although that the Tree was not Priviledg'd at the first cutting which was the Opinion of the whole Court of Common-Pleas Such Timber-Trees are in Law known by the name of Great Trees and Gross woods Trades and Labours pay some Tithe by usage in the nature of Personal Tithes and so Carpenters Masons c. and all Handicrafts-men have paid Tithe There was a Parson in Bristoll that sued an Innkeeper there for the Tithes of the Profits of his Kitchin Stable and Wine-cellar in a Prohibition moved for by Yelverton the Case appeared to be this The Defendant being Parson of a Parish in Bristoll did Libel in the Ecclesiastical Court against the Plaintiff being an Innkeeper of the Bear in Bristoll to have Tithes of the Profits by him made of his Kitchin Stable and Wine-cellar and lays in his Libel there That he made great gain in selling of his Beer having bought it for 500 l. and sold the same for a 1000 l. and so Libels for the Third part of the Profits of the same and sets forth in his Libel That this is due unto him per Communem Legem Angliae and sets forth in his Libel That Negotiando and Traficando he doth bargain and sell Beer in his Inn for 1000 l. which he bought for 500 l. and gained in his Sale 300 l. and better of which gain he ought to have Tithe Yelverton moved for a Prohibition setting all this matter forth in his Suggestion and further shewed That the Defendant had yearly of the Plaintiff 40 l. at the least Doderidge Justice The Defendant would have Tithe as I think also of the Kitchin-stuff Clench Clerk of the Papers informed the Court That there was a Parson who Libelled for Tithes of the gains of 10 l. for an 100 l. put out at Interest and a Prohibition was granted In this principal Case by the Rule of the Court a Prohibition was awarded Transaction differs from Composition only in this that Transaction is an Agreement touching Tithes upon things litigious and doubtful the other is Frank gratuitous and voluntary of things not contended for See Composition Treble Dammages may be had in an Action grounded upon the Statute of 2 Ed. 6. for not
whether sufficient Notice thereof were given or not are examinable only in the Ecclesiastical Court and when the Licence is sufficient and the Provisoes well and duly observed and Notice thereof and This be refused or rejected in the Ecclesiastical Court yet no Prohibition lies but the Party grieved must have his Remedy by way of Appeal and not otherwise 4 That where power is given by Act of Parliament to the Archbishop to grant Licence either de novo or in Confirmation of his Authority yet the form of the Dispensation and the observation of the Provisoes and Conditions thereof and whether sufficient Notice were given or not are examinable in the Ecclesiastical Court and if they there adjudg in that case irregularly no Prohibition lies but the Remedy is only by way of Appeal But if it come into question in the Ecclesiastical Court whether the words of the Act of 25. H. 8. do give sufficient power to the Archbishop to grant a Licence there if the Ecclesiastical Court doth judge against the power a Prohibition lies and not otherwise but if they allow the Licence in point of power and only insist upon the Form and Notice and other Circumstances in such case a Prohibition doth not lie For though a power to grant Licences be by Act of Parliament which is a Temporal thing yet the Licence it self remains an Ecclesiastical thing and the examination of all these things saving the Power remains to the Ecclesiastical Court as it was before CHAP. XXXIIII Of Adultery 1. What Adultery is why so called and in what Court Cognizable 2. The Punishment of Adultery under the Levitical Law and what it was anciently by the Civil Law 3. The several Punishments thereof anciently according to the Quality of the Offenders respectively 4. Adulterers compared to Idolaters strange Punishments of Adultery among the ancient Pagans 5. The Severity of certain Ecclesiastical Laws in ancient times against Adultery 6. The Customs among the Arabians Mahumetans Tartars Indians Pagans in punishing Adulterers 7. The Civil Law touching Jealousie and second Marriage the former Husband then living 8. Adultery what in sensu largo how the punishment thereof is now mitigated at the Civil Law to what it was anciently and how punished at the Canon Law 9. The diversity of punishments inflicted on Adulterers according to the divers Customs of Nations respectively 10. In what respect the Temporal Laws may take some Cognizance of Adultery 11. What the Saxons of old in this Kingdom called the Punishment of Adultery the remarkable Case of Sr. Jo. de Camois 11. Adultery fals under a Threefold Consideration of Law the History of the Adulterous Stork 1. ADULTERY or Adulterium quasi ad alterius thorum where the Rights of lawful Matrimony are violated Lindwood's Const de Offic. Archipresb verb. tertium mandat is the Incontinencie of Married persons or of persons whereof the one at least is under the Conjugal Vow This is properly cognizable within the Ecclesiastical Jurisdiction the Conviction whereof is by Examination and other Legal proof requisite by the Law of the Church which if committed by any of the Clergy duely convicted thereof he was punishable by Imprisonment at the discretion of the Bishop or Ordinary of that Diocess wherein he resides 2. By the Levitical Law Adultery was punished with Death in both Sexes yea Stoned to death By the Civil Law also which cals it the Violating of another mans Bed the Punishment anciently was Death both in the Man and in the woman But afterwards the Punishment was mitigated by that Law as to the Woman she being first whipt and then shut up in a Monasterie but by the Canons other Laws are inflicted 3. At the Synod in Ireland held by St. Patrick and other Bishops an 456. by the 19 th Canon thereof the Adulterers were to be excommunicated At the Council held at Berghamstead by Bertwald Archbishop of Canterbury the Bishop of Hereford and others in the fifth year of Withred King of Kent an 697. several Laws were made against Adultery according to the several qualities and conditions of the Persons offending respectively beside Excommunication against all such if the Adulterer were an Alien he was to depart the Land and to take his Sins and his Estate away with him If a Soldier then to be fin'd five pounds If a Rustick or Countrey Husbandman known in the Law by Paganus then to pay fifty shillings If a Priest then to be inhibited from administring the Sacrament of Baptism 4. Boniface Archbishop of Mentz when he was the Popes Legate in Germany an 745. in his Epistle to AEthelbald King of Mercia compares Adulterers to Idolaters and moreover says that the Greeks and Romans Compar'd Adultery to Blasphemy when committed by or with one of religious Orders and adds that among the Pagans in the time of the old Saxons the very pactice was that if a Virgin Adulterously defil'd her Fathers Family or a Married woman plaid the whore they were enforced to be their own Executioners and by their own hands to reduce themselves by Strangling to dead Corps which being after burnt the Adulterer was hangd over the Ashes thereof and at other times the Adulteresses were by those of their own Sex out of their Zeal to Chastity whipt from Village to Village till they were whipt to death In Antiqua Saxonia ubi nulla est Christi cognitio si Virgo in paterna domo maritata sub Conjuge fuerit adulterata manu propria strangulatam cremant supra fossam sepultae corruptorem suspendunt aut cingulo tenus vestibus abscisis flagellant eam castae matronae cultellis pungunt de Villa in Villam inter se occurrunt novae flagellatrices donec interimant By the Laws of William the Conqueror the Adulterer was to be put to death Si Pater deprehenderit Filiam in Adulterio in domo sua seu in domo Generi sui bene licebit ei oure lege forsan occire occidere Adulterium 5. In the Ecclesiastical Laws of Keneth King of Scots an 840. By the 14 th and 15. Canon thereof it is ordained That he who deflowrs a Virgin shall dye for it unless she desires him for her Husband and that he who Adulterates another mans Wife not dissenting Both shall suffer the severest punishment unless she were under a force in which case she shall be acquitted By the Ecclesiastical Laws of Hoel Dak King of Wales an 940. it was a sufficient cause of Divorce if a Woman did but kiss any other man than her Husband l. 18. Yea she must lose her Dower and all her Rights by that Law and only for a kiss and by the same Law Adultery in the Man was held as a kind of Hostility In the time of the latter Saxons by the Ecclesiastical Laws of King Edmund an 944. Adulterers and Murderers had one and the same punishment and both alike denied Christian Burial After him by the Ecclesiastical Laws
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
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
he may Lawfully Marry some other Woman and some other Man Marry that Divorced Adulterers Wife In Mat. 19. 9. The words are That whosoever shall put away his Wife save for fornication and shall Marry another committeth Adultery and he that shall Marry her that is put away committeth Adultery Which words says that learned Author in Sect. 22. are favourable to the affirmative that it is Lawful for him in that one excepted Case to Marry again The nature of a Divorce among the Jews was the rescinding of the Conjugal Bands and by one supposition common to Jews and Romans viz. That they who were duly Divorced might Marry again So of the Jewish Divorced Wife Deut. 24. 2. 't is expresly said she may Marry another and of the Man this was his only End of putting away his Wife in that place that he might Marry another Accordingly the Form of Divorce in Misna tit Gittin Behold thou art free or at liberty for any Man and this is the Bill of Divorce between me and thee so that it is free for thee to Marry to any Man thou wilt Idem Sect. 27. yet on the other side says that learned Author it may be argued that although in the Mosaical Law Divorce was the rescinding the Conjugal Bands to which it was consequent as long as the Jewish polity lasted that they who were duly Divorced as in the one Case of Fornication might freely Marry again yet in the acceptation of our Christian Courts Divorce appears not to be any more than the solemn Judicial separation from Conjugal Society as that it seems to be rather the freeing the Husband and Wife from the Obligation to mutual conjugal duties than the utter rescinding and dissolving the Bands For if it were so then that Husband and Wife could never come together again without a new Wedlock which was never heard of in the Church that Adultery the efficient cause of Divorce though a breach of the Conjugal Vow is yet no actual dissâ—lution of the Conjugal Bands among us Christians seems probable says Doctor Hammond by these two evidences 1. Because Adultery committed by the Husband dissolves not Marriage which yet it equally should if that fault committed and not the Sentence of Divorce rescinded the Conjugal Band c. In this a difference is observable between us and the Jews for in case of Fornication the Jew expected no Sentence of the Consistory but the Man might put her away give her from himself a Bill of Divorce which was never allowed or practised among Christians 2. Because if this were so if Adultery in the Wife dissolved the bands then the Husband that after the Wifes Adultery continued to live with her Conjugally must be concluded to commit Fornication with her the validity of the bands being it and nothing else which makes Conjugal Society Lawful Accordingly hath the Opinion of the Church been anciently as in Can. Apost 48. If any Laick put away his Wife and Marry another or Marry a Woman which hath been put away by another let him be Excommunicate So likewise at the Council of Arles An. 314. Can. 10. De his qui Conjuges suas in adulterio deprehendunt iidem sunt Adolescentes Fideles prohibentur nubere placuit ut in quantum possit concilium iis detur nè viventibus uxoribus suis licet Adulteris alias accipiant Likewise in the Milevitan Council An. 402. at which St. Augustine was present it is decreed that secundum Evangelicam Apostolicam Doctrinam neque Dimissus ab uxore neq Dimissa à Marito alteri conjungantur sed ita maneant aut sibimet reconcilientur So also in the Codex Can. Eccl. African Can. 102. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That they that are Divorced from Husbands or Wives should remain unmarried And what hath thus been defined by these Canons is evidently received into the Ecclesiastical constitutions of this Church which therefore hath decreed that when Divorces are pronounced Monitio prohibitio fiat ut à partibus ab invicem segregatis caste vivatur nec ad alias Nuptias alterutra vivente convoletur Constit Eccl. An. 1597. upon these Arguments pro con Doctor Hammond in the forecited place doth conceive that the Resolution may be made by these three propositions 1. That by the force of Christs words in all the Evangelists he that Marries again after any kind of Divorce but that one for Fornication doth commit an Vnchristian sin 2. That by force of the Arguments first produced for the interpreting Mark and Luke by Mat. 19. 5. vid. Doctor Hammond of Divorces fol. 452 453. it may be probably concluded that in that one case of Divorce for Fornication the Marriage of the Innocent party shall not be Adulterous 3. That although this be granted yet the words of St. Mark and Luke especially the words of St. Paul 1 Cor. 7. 39. do give such prejudices against Marriages after Divorce indefinitely that the ancient Canons of the Church and the Constitutions of our English reformation have thought fit not to permit such liberty in any kind and therefore that this may be the better observed the decree of separation shall not be pronounced till they that demand it shall give sufficient security that they will do nothing against the Admonition and Prohibition for our Constitution adds Denique quo illud firmius observetur sententia separationis non antea pronunciabitur quam qui eam postulaverint Cautionem Fidejussoriam sufficientem interposuerint se contra monitionem prohibitionem nihil commissuros which if not observed by the Judge he is punishable and the Sentence of Divorce for such defect declared void Constit Eccl. an 1597. Innocent the first Bishop of Rome saith Qui interveniente repudio alii se Matrimonio copularunt in utraque parte Adulteros esse manifestum est c. But the said Judicious Author conceives that of this and the like Testimonies it may be observed that most of them belong not to these Divorces which are in case of Fornication but proportionably to Christ's words in St. Mark to those which according to the Jewish or Imperial Laws were allowed in other Cases than what either Christ or the Primogenial institution of Marriage had allowed of And further saith that it is evident and confessed by all Christians that of These that is the Marriages after such Divorces by the Jewish and Imperial Laws are Adulterous but not so of those other Marriages of the innocent parties after those other Divorces in that one Case of Adultery Yea and some Canons have been made with this Temperament expresly except in the case of Fornication so in the second Canon of the Council of Vannes eos qui relictis uxorihus suis sicut in Evangelio dicitur excepta causa Fornicationis sine Adulterii probatione alias duxerint statuimus c. They that have left their own Wives as it is said in the Gospel except for cause of Fornication and
Patrum Concinnatis it was Lawful so to do the words of the Canon are Si vir sive Mulier ex consensis Religionem ceperit licet alterum accipere novum conjugium But from hence no Argument can be drawn to prove the Lawfulness thereof in Causa Divortii The Cardinal of Segutium in his summa Hostiensis seems to be of Opinion that it is Lawful in case of Divorce to Marry again the words of that famous Canonist are debet Iudex sententiam Divortii partibus tradere in Scripturam publicam redactam ne Filiis susceptis ex secundo Matrimonio probatione deficiente valeat praejudicium generari But Cardinal Navarr seems to be more positive in the point where he Affirms that Matrimonium Contractum cum secunda post sententiam Divortii valet provided it be post Triennalem Cohabitationem as the Canon Law requires in causa Impotentiae Navar. Concil l. 4. concil 1. de Frigidis nu 3. p. 414. But it seems strange that Sanchez a Jesuite and one of the highest form arguing this Question against the Hereticks as they are pleas'd to call us should so ingenuously confess that ex ipsis Catholicis aliqui existimarunt omnino dissolvi Matrimonium quoad vinculum eo propter Adulterium alterius Conjugis separato atque ita licere aliud Matrimonium inire priori Conjuge superstite Sanch. de Matrim Tom. 3. l. 10. de Divor Disp 2. nu 1. Navar. lib. 4. Concil 1. nu 3. 8. This utrum ob Adulterium alterius Conjugis dissolvatur Matrimonium quoad vinculum ita ut integrum sit innocenti ad alias Nuptias transire altera parte vivente was a Question long since controverted by Bellarmin and by Valentia Bellarm. l. 1. de matrim c. 15. Valent. lib. unic de indissolubilitate matrim cap. 3. And by them admitted as disputable with a Non obstante to the Council of Trent whereby Matrimony is highly Sacramentiz'd as appears by that which the said Tridental Council declares concerning it viz. Matrimonium est Sacramentum quod ex opere operato confert gratiam secundum Communem veram opinionem quam pro infallibili Articulo Fidei tenendam esse ait Concilium Trident. declaravit Navar. lib. 4. Concil 1. nu 3. Yet the forementioned Sanchez doth cite Sixtus Senensis bringing in Origen Asserentem sui temporis Episcopos permisisse alias Nuptias uxoribus ob virorum Adulteria ab ipsis divertentibus Sanch. ubi supra Sixt. Senens lib. 6. Bibliothec. Of which Judgment also was St. Ambrose as he affirms also Tertullian Erasmus Cajetan and Catherinus Tertul. lib. 4. contra Marcion Erasm annot ad 1. Cor. 7. Cather l. 5. Annot. contra Cajetan infin Cajetan in Mat. 19. in illud quicunque dimiserit This also saith Sanchez was the Judgement of the Greek Church as Guido the Carmelite reports and of this Judgment are both the Lutherans and Calvinists yea it was the Judgement also of a Pope Pope Zacharias the First who expresly Decreed in these words viz. Concubuisti cum sorore uxoris tuae Neutram habeas Et si illa quae uxor tua fuerit Conscia sceleris non fuit si se continere non vult Nubat in Domino cui velit Cap. Concubuisti 32. quest 7. And as to the Husband St. Ambrose is express in the Case uxor à viro non descedat nisi causa Fornicationis quod si discesserit aut maneat innupta aut reconcilietur Ideo non subdit de viro quod de uxore praemisit quia vero liceat ducere aliam D. Ambros. ad 1 Cor. 7. refertur cap. uxor 32. q. 7. So likewise Ex concilio apud Vermerias it is express that Maritus uxore conciliante mortem ejus possit ipsam uxorem dimittere si voluerit aliam ducere refertur c. si qua Mulier 31. q. 1. 9. In the first Year of Lotharius King of Kent An. 683. In Concilio Herudfordiae It was Decreed that Nullus Conjugem propriam nisi ut sanctum Evangelium docet Fornicationis causa relinquat Quod si quis quam propriam expulerit Conjugem Legitimo sibi Matrimonio Conjunctam Si Christianus esse recte voluerit nulli alteri copuletur sed ita remaneat aut propriae reconcilietur Conjugi In those days it seems he was reputed scarce a Christian that being separated from his Wife presumed to Marry another And above two hundred years before in St. Patricks Synod viz. In Synodo Sancti Patricii aliorumque Episcoporum in Hibernia Celebrata circa An. Christi 450 vel 456. It was decreed That the punishment of a Woman departing from her Husband and joyning her self to another Man should be Excommunication In the time of H. 3. and in the Case of Simon de Montford between him and his Wife the Pope ratified his Marriage after he had dispenced therewith contrary to the Laws and Canons King John being Divorced from the D. of Glocesters Daughter viz. the third of June 1199. soon after viz. before the 8 th of October then next following was Remarried to Isabel sole Daughter and Heir to the E. of Engolesme Likewise Alice Daughter of the E. of Savoy and King John's first Wife was Married to him after she had been the Divorced Wife of Henry de Lyon D. of Saxony Speed Chron. in vita Johan R. Angl. Also King Henry 8 th after he had been Divorced from Q. Katherine his Brothers Relict and after above twenty years cohabitation with her Married again during her Life the Lady Anne Bullen by whom he had Q. Elizabeth These are Presidents of Fact not of Law For 10. Alceat asserts that hodie Jure Pontificio permittitur solum separatio ex certis causis nec interim licet aliam ducere etiamsi separationi uxor causam dederit yet withall he says in the same place Aliter tamen aliqui ex Antiquis Patribus olim observare inter quos Ambrosius qui ex justa causa Marito jus divertendi atque aliam ducendi c. Non enim hos homo separat sed Deus quando ita Optimis Antistitibus propter malos Foeminae mores videtur Alceat de verb. sig l. 101. inter stuprum Sect. Divortium In which place the same Author further adds It is no wonder that the Emperor Justinian himself was somewhat sparing in this point when the Pontifical Canon passim tempestate sua observatus fuisset ut forte credendum sit Licere Pontifici eos Canones tollere jus Romanum observari si velit Grotius says Cum ea alteri Nupta est Matrimonium haud dubie irritum lege quidem Naturali nisi vir prior eam dimiserit Grot. de jur bel lib. 2. cap. 5. § 11. And in the Matrimonial Councils it is express That Mulier à primo Matrimonio per sententiam separata cum eo cum quo secundo nupsit cum Authoritate Ecclesiae manere debet Concil Matrim Concil Baldi 3. nu
the Parties is Lawful Et homo potest esse habilis inhabilis diversis temporibus and Judgment affirmed in Error A. Was indicted upon the Statute of Primo Jacobi for having two Husbands It was found that A. was Lawfully Married to N. and before the Judge of the Audience she sued a Divorce against P. propter saevitiam whereupon it was decreed that propter saevitiam of her Husband she should be separated à Mensa Thoro and it was express'd in the Sentence that she should not Marry any other during the Life of P. she afterwards P. Living and she knowing thereof took to Husband J. S. The Question was whether that were Felony within the Statute It was said in this Case that this being a Divorce Causa Saevitiae was but a separation à Mensa Thoro and not a Dissolution à vinculo Matrimonii and therefore that the Marriage continued between them The Court doubted whether the Proviso in the said Statute did extend to every manner of Divorce but inclined to be of Opinion that she was not within the Proviso for if this should be suffered many would be Divorced upon such pretences wherefore the Court advised the Woman to procure a Pardon to avoid the danger of the Statute Debt against Husband and Wife as Executrix of her former Husband the Defendants plead by Atturney that they were Divorced before the Writ brought It was adjudged that the Writ should abate for it shall be presumed the Divorce continueth if the contrary be not shewed In another Case being for Debt upon an Obligation where the Defendant said that at the time of the making of the Obligation she was Wife to J. S. who is yet in vita and so Non est factum The Plaintiff said that after the making of the Bond there was a Suit in the Ecclesiastical Court between the said J. S. and the Defendant for that the said J. S. had another Wife alive at the time of the Marriage betwixt them so as the Defendants Marriage was adjudged void It was the opinion of the Court that this Divorce was but Declarative for it was void ab initio and so the Defendant sole always and adjudged for the Plaintiff The Wife Libelled against the Husband in the Ecclesiastical Court for Alimony because he beat her so as she could not live with him a Prohibition was prayed but denied by the Court and it was held in this Case that the Wife might have the Peace against her Husband for unreasonable correction By the Statute of 1 Jac. cap. 11. it is Felony to Marry a second Husband or Wife the former Husband or Wife living out of the generality of which Law the Lord Coke makes five exceptions 1. It extends not says he to any person whose Husband or Wife is continually remaining beyond the Seas by the space of seven years together and notice is not material in respect of the commorancy beyond Sea 2. It extends not when the Husband or Wife shall absent him or her self the one from the other by the space of seven years in any parts within his Majesties Dominions the one of them not knowing the other to be Living within that time here notice is material in respect the Commorance is within the Realm 3. It extends not to any person that at the time of such Marriage is Divorced by any Sentence had in the Ecclesiastical Court. 4. Nor to any person where the former marriage is by Sentence in the Ecclesiastical Court declared to be void and of no effect 5. Nor to any person for or by reason of any former marriage made within the age of Consent If the Man be above fourteen and the Wife under twelve or if the Wife be above twelve and the man under fourteen yet may the Husband or Wife so above the Age of Consent disagree to the Espousals as well as the party that is under the age of Consent for the advantage of disagreement must be Reciprocal And so it was resolved by the Judges and Civilians Trin. 42 Eliz. B. R. in a Writ of Error between Babington and Warner So as if either Party be within Age of Consent it is no former Marriage within the Act aforesaid It is commonly as well as formerly said that there are two kinds of Divorces the one that dissolveth the Marriage a vinculo Matrimonii as for Precontract Consanguinity c. The other a Mensa Thoro as for Adultery because that Divorce by reason of Adultery cannot dissolve the Marriage a vinculo Matrimonii for that the offence is after the just and lawful Marriage And the said Stat. of 1 Jac. cap. 11. doth in respect of the generality of the words priviledge the Offender in case of second Marriage where the former Husband or Wife is living from being a Felon as well in the case of Divorce a mensa thoro as where it is a vinculo matrimonii and yet in the Case of the Divorce a mensa thoro the second Marriage is void living the former Wife or Husband And if there be a Divorce a vinculo matrimonii and the adverse party appeal which is a continuance of the former Marriage and suspends the Sentence yet after such a Divorce the party Marrying is no Felon within the said Statute c. although the Marriage be not Lawful 13. Alimony although it properly signifies nourishment or maintenance when strictly taken yet now in the common legal and practicable sense it signifies that proportion of the Husbands Estate which the Wife sues in the Ecclesiastical Court to have allowed her for her present subsistence and livelyhood according to Law upon any such separation from her Husband as is not caused by her own Elopement or Adultery By this Elopement is here understood meant and intended that voluntary departure of a Wife from her Husband to live with an Adulterer and with whom she does live in breach of the Matrimonial vow whereby she incurrs the forfeiture of her Dower unless her Husband upon her free and voluntary submission shall think fit by way of reconciliation to receive her again and readmit her into the former conjugal relation In which sense a Woman thus deserting and forsaking her Husband is said to Elope whereby the Law will not compel him in this case to allow her Alimony on which word Mr. Blount in his Nomo-â—exicon makes mention of an ancient record wherein the same thing is called rationabile estoverium This Alimony the Wiâ—e that Elopes or departs from her Husband with an Adulterer though she departed with her Husbands consent yet loses together with her Dower or Joynture as appears by that remarkable Case of Sir John de Camois before recited And the Husband from whom his Wife departs and lives with an Adulterer shall not be compelled to allow her any Alimony 14. Notwithstanding the premisses regularly the Husband is obliged to allow the Wife Alimony pendente lite arg
reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander 5. Whether Action lies for calling one Quean 6. Prohibition for suing in the Ecclesiastical Court for words tending to the obstruction of a Marriage 7. Matters determinable at Common Law not Cognizable in the Ecclesiastical Courts 8. Whether these words Thou hast taken a false Oath be Actionable and in what Court 9. Whether Action lies at Common Law for saying Thou art a Whore c. 10. Words of Slander to the â—inderance of Marriage are Actionable at the Common Law 11. Defamatory words Thou art a Bawd and keepest a Bawdy house whether and where Actionable 12. To say A. is a Cuckold and that B. had layen with the Wife of A. is a Defamation suable in the Spiritual Court 13. The Difference as to Cognizance between the words Thou art a Bawd and I will prove thee a Bawd and the words Thou keepest a House of Bawdry 14. To say Thou art a Drunkard or a Drunken Fellow whether such words are suable in the Ecclesiastical Court 15. The words he is a Cuckoldly knave are suable not in the Temporal but in the Ecclesiastical Court 16. Whether the calling of Pimp Common Pimp be Actionable and in what Court 17. Welch Jâ—de expounded to be Welch whore and cognizable in the Ecclesiastical Court 18. Whether the words Quean or Base Quean be Actionable in the Ecclesiastical Court 19. Action in that Court for Scandalizing a Parson 20. Whether Action lies in the Ecclesiastical Court for saying of one that kept a Victualling house that she kept a House of Bawdry 21. Whether the words Thou art a Pander be Actionable at the Common Law 22. Church-wardens presentment of a Feme Covert upon a Common Report for Adultery and Action of Defamation brought in the Ecclesiastical Court thereon 23. Whether Action upon the Case for words lies against an Infant of Seventeen years of age 24. Several other Cases at the Common Law pertinent to this Subject of Defamation what of them cognizable in the Ecclesiastical Court and wherein the Prohibition lies or not 1. DEFAMATION properly so called is the utterance of Reproachful Speeches with intent of raising an ill Fame of the Party so reproached Defamare est in mala Fama ponere Bart. l. turpia ff de Legat. 3. This extends it self to Writing as by defamatory Libels as also to Deeds as by Reproachful Postures Signs and Gestures Lindw c. authoritate verb. quacunque in gloss de Sent. Excommunicat And as for the most part it proceeds of malice implying matters either of Crime or Defect so it generally aims at some prejudice or dammage to the Party defamed Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by vertue of Prohibitions and Actions upon the Case yet it will not be denied but that the Cognizance of Defamations where they are duly prosecuted doth properly belong to the Spiritual Law specially where the matter of the Defamation is only Ecclesiastical 2. In all causes of Defamation the Party defamed had his Election by the Civil Law whether he would prosecute the Defamer ad Vindictam publicam or ad privatum interesse the former whereof was made choice of where the Defamed aimed more at the Defamers shame than his own Interest and chose rather to reduce him to a Recantation than augment his Cash by his own Credit 's diminution l. in constitutionib § ult ff L. Cornel. The other viz. ad privatum interesse was chosen by such Defamed ones as valued their Credit at a certain Rate and chose rather a Pecuniary Compensation than an unprofitable Recantation aiming more at their own private satisfaction than at the Defamers publick Disgrace l. stipulationum § plane ff de verbor obligat l. si quis ab alio ff de re judic But both of these the Defamed could not have for having determined his Election he was therewith to rest satisfied only having obtained a Sentence against the Defamer for his Recantation or publick Disgrace by prosecuting him ad publicam vindictam he might possibly have in Lieu thereof a pecuniary Recompence by way of Commutation The Prosecution ad publicam vindictam was left to the determination of the Ecclesiastical Jurisdiction the other to the Cognizance of the Secular Much in conformity to what the Laws of this Realm in Cases of Defamation seem to say viz. where the Prosecution is meerly for the Punishment of Sin and Money not demanded there the Spiritual Court shall have the Cognizance But where Money is demanded in satisfaction of the Wrong there the Temporal specially if the Defamer undertake to justifie the matter or the words express or imply a Crime belonging to the Cognizance of the Common Law These Actions of Defamation are of a higher Nature than they seem primo intuitu to be a mans good Name being Equilibrious with his Life and therefore the Law calls them Actiones praejudiciales that is such as draw lesser Causes to them but themselves are drawn of none 3. One Libelled against another in the Ecclesiastical Court for saying That he was a Drunkad or a Drunken Fellow and an addle Drunken Fellow and by the opinion of the whole Court a Prohibition was granted and for such words a Prohibition was granted in C. B. in the Case of Martin Calthorp 4. One moved at the Barr for a Prohibition to the Ecclesiastical Court on a Suit there depending for calling one Bawd Jones Justice conceived that these Differences ought to be observed where a Man calls a Woman Whore or such like Slander for which Suit lies in the Ecclesiastical Court against the Party if the matter appear in that Case Suit lies for Slander there and no Prohibition lies è contra if a man be called Thief Traytor or the like whereon no Suit lies for the Principal in the Ecclesiastical Court but at the Common Law if one be sued for such Slander in the Ecclesiastical Court a Prohibition lies If a man call one Bawd for which Suit lies at the Spiritual Court and also at the Common Law there if the Suit be for Slander in the Ecclesiastical Court in that case no Prohibition lies for the Party hath Election to sue in which Court she please So if a Woman be Slandered in her Reputation whereby she is hindered in her Marriage she may sue either at the Common Law or in the Spiritual Court for Slander And lastly if a man speak any words for which no Suit lies at Common Law nor are such as concern any thing whereof the Ecclesiastical Court takes Cognizance it seems that in such Case if Suit be in the Spiritual Court for Slander as for Convitia a Prohibition lies as for calling one Knave Drunkard or the like Quaere of that the Chief Justice agreed to that the others said nothing therein 5. A Suit was commenced in the Ecclesiastical Court where the Lilbel was that he called the Plaintiff
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
party a Sentence there given and Costs pro expensis litis the Husband did release these Costs which they would not there allow of upon a suggestion here that the Husband was divorced causa Adulterii a Prohibition was prayed and for which it was urged that the Release by the Husband was good the Suit being there for Defamation Sentence there given the Wife divorced à Mensa Thoro which doth not dissolve Vinculum Matrimonii but that this notwithstanding they may come together again when they will and such a Divorce is no Barr of Dower Doderidge They are only to restore the Party to her good Name in Case of Defamation The point here only is the Husband and Wife are divorced Causa Adulterii the Wife sues in the Ecclesiastical Court for Defamation and there recovers and Costs are given the which the Husband did release whether this Release thus made by the Husband shall barr the Wife of her Costs And if they will not allow of this Release there whether a Prohibition shall be granted or not The Whole Court clear of opinion that no Prohibition in this Case is to be granted And so by the whole Court the Prohibition was denied CHAP. XXXVIII Of Sacriledge 1. Whence the word Sacriledge is derived what it imports and the several kinds thereof 2. It is taken properly and strictly or improperly in sensu largo and is of a mixt Cognizance 3. The several ways whereby Sacriledge may be committed 4. Who are intended by Persons Sacred against whom Sacriledge may be committed the division thereof 5. Bartol's Definition of Sacriledge several severe punishments thereof Recorded by Historians 6. The several punishments inflicted on Sacrilegious persons according to the Civil and Canon Law The Civil Law more severe therein than the Canon how punish'd anciently in this Realm according to the Ecclesiastical Constitutions thereof 7. The dreadful Curse anciently and solemnly pronounced in Parliament against Sacrilegious persons 8. A remarkable Judgement that happened to a Bishop of Bangor for Sacriledge 1. SACRILEDGE from Sacro Lego or à Sacris Legendis that is suffurandis for that word Lego sometimes signifies furari or rapere Isidor lib. 1. Origin lit s Sacrilegus qui sacra legit h. e. furatur In the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 importing as much as to say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is praedari vel violari Sacra for Sacriledge is the violation or usurpation of some thing that is Sacred Gloss in cap. omnes Ecclesiae 17 q. 4. and may be committed three several ways As 1. either in respect of the Person as when a man doth wound or strike an Ecclesiastical Person in Holy Orders or 2. in respect of the Place as when one violates the Priviledges or immunities of the Church or Church-yard or 3. in respect of the Thing as when a thing Sacred or Consecrated or deputed or dedicated to some Sacred use is usurped upon and taken away and this holds true whether auferatur Sacrum de Loco sacro vel non sacro vel non sacrum de sacro Lindw de Offic. Archipres c. 1. glos in verb. Sacrilegium 2. Sacriledge is taken either strictly and properly as when a thing sacred is stolen out of a sacred place so it is held according to the Law generally but either will amount to Sacriledge according to the Canons or in a large sense and improperly and so it extends to other Crimes l. si quis c. de Epis cle c. de sacrileg per totum As infringing the Church's Liberties invading Ecclesiastical goods and the like whereof more hereafter Lindw de immun Eccl. c. 2. glos in ver Sacrilegi The Emperors held their Constitutions so sacred that they called the violation thereof Sacriledge l. un c. de Crimi Sacril This Crime is of a mixt cognizance partly Ecclesiastical partly Secular whereof each Jurisdiction may jure proprio take cognizance c. cum sit generale De foro compet So that this Crime of Sacriledge is not meerly Ecclesiastical because the cognizance â—â—â—reof in some Cases may appertain to the Secular Judge at least quoad poenam si quis in hoc c. de Epis Cler. And Hostiensis himself doth confess as much quoad poenam Corporalem otherwise it is as to the censures of the Church contra talem fulminadas 3. There are many ways whereby Sacriledge may be committed as by invading the rights and goods of the Church by unjust and illegal vexing and molesting the Church by wasting and destroying the Church by violating Ecclesiasticks by a Clerks consulting with Soothsayers and Diviners by violating Church-priviledges and Immunities by striking a Clerk Lindw de immun Eccl. c. seculi glo in verb. ausu Sacrilego Church-burners Church-breakers Church-robbers by stealing the Church-bible the Calice or other thing out of the Church by violating the Church-porch or breaking the Doors thereof by striking in the Church or apprehending and taking any one there by obstructing the Jurisdiction of the Church or hindering any of that free access which he ought to have to the Church by usurping the Guardianship or custody of a Church that is void and under that pretence posess themselves of the Goods and Revenues thereof by usurping and occupying the Oblations and Offerings of the Church but to explicate this Crime of Sacriledge to its full latitude it is requisite in order thereto to distinguish aright of things Sacred which are violated thereby for as Habits are distinguish'd ex objectis so Vices by the matters about which they are conversant now the matter of Sacriledge is ever something Sacred and therefore Sacriledges are distinguish'd according to the diversity of Sacred things whence Aquinas inferr's that as there are Three kinds of things Sacred viz. Persons Places and some other Things So there is a Threefold kind of Sacriledge viz. against Persons against Places and against other Things consecrated and dedicated to Divine Worship Which distinction the Canonists do generally hold in each Member thereof As Sacriledge 1. Against Ecclesiastical Persons cap. sicut c. quisquis 17. q. 4. in c. si quis deinceps usque ad cap. si quis suadente ead Caus q. 2. Sacriledge against sacred places cap. Miror c. Frater 3. Against the Goods and Revenues of the Church cap. Sacrilegium cap. Omnes Ecclesiae cap. Attendendum It being expresly said that Qui pecunias vel res Ecclesiae abstulerit Sacrilegium facit in cap. qui rapit There is no Sacriledge but may be reduced to one of these three heads although under them there may be divers other kinds of Sacriledges more particularly subdistinguish'd 4. By Persons Sacred is here understood such as in a peculiar manner are set apart and dedicated to Divine publick Worship according to Sacred Ordination and the principal kind of Sacriledge commissable against such is the laying of violent hands on them which is a violation of their Immunities or Priviledges cap. si quis
Church This double value shall be accounted according to the very or true value as the same may be let and shall be tried by a Jury and not according to the extent or taxation of the Church Co. par 3. Inst cap. 71. And albeit the Clerk be not privy to the Simoniack Contract yet it seems the Patron shall pro hac vice lose his Presentation But the Title of the rightful and uncorrupt Patron shall not be sorscited or prejudiced by the Simoniacal Contract of an Usurper albeit the Clerk be by his presentation admitted instituted and inducted nor entitle the King to present 4. The Church notwithstanding the Admission Institution and Induction becomes void whether the Clerk presented were a party or privy to the corrupt and Simoniacal Contract or not But Sir Simon Degee in his Parson's Counsellor puts the material Question viz. Whether the Clerk that is presented upon a Simoniacal Contract to which he is neither party nor privy be disabled for that turn to be presented by the King to that viz. the same Church In order to the resolution whereof he acquaints us with a Case reported wherein it was adjudged that if a Clerk were presented upon a Simoniacal Contract to which he was neither party nor privy that yet notwithstanding it was a perpetual disability upon that Clerk as to that Church or Living The like in another Case where B. the Church being void agreed with the Patron to give him a certain Sum of Money for the Presentation B. presented C. who knew nothing of the Simoniacal Contract till after his Induction In this Case it seem'd by Warburton Justice that C. was disabled quoad hanc Ecclesiam In which Case it was clear that the grant of the Presentation during the vacancy was meerly void that B. presented as an Usurper that C. was in by the corrupt Contract and that were it not for the same the Patron would not have suffered the Usurpation In further confirmation hereof it is also reported to us that Sir Edward Coke affirmed it hath been adjudged that if a Church be void and a Stranger contracts for a Sum of Money to present one who is not privy to the Agreement that notwithstanding the Incumbent coming in by the Simoniacal Contract is a person disabled to enjoy that Benefice although he obtain a new presentation from the King for that the Statute as to that Living hath disabled him during Life Notwithstanding all which Premises Sir Edward Coke in his Comment upon the said Statute of 31 Eliz. asserts it to have been adjudged in the forecited Case of Baker and Rogers that where the Presentee is not privy nor consenting to any such corrupt Contract there because it is no Simony in him he shall not be adjudged a disabled person within the said Act for the words of the Statute are And the person so corruptly giving c. And so says he it was resolved Mich. 13. Jac. Where the Presentee is not privy nor consenting to any corrupt Contract he shall not be adjudged a disabled person within the Act because it is no Simony in him Coke Inst par 3. cap. 71. Also it was so resolved in Doctor Hutchinsons Case by the whole Court viz. That if a Clerk be presented upon a corrupt Contract within the said Statute although he be not privy thereunto yet his presentation admission and induction are all void within the Letter of that Statute but not within the clause of disability within the same Statute 5. The Contracts which are commonly held corrupt and Simoniacal may be diversified almost into as many kinds as transferences and proprietary negotiations are capable of but those which have been most in practice as appears by the Cases reported in the Law have been by way of unlawful purchasing the next Advowson by Exchanges by Resignation Bonds by Matrimonial compacts by contracts remote and conceal'd from the Presentee by Obligations of an indirect nature and the like To the purposes aforesaid it hath been held Simony for a Parson to promise his Patron a Lease of his Tithes at such a Rent in case he would present another Parson into his Benefice with whom he was to exchange albeit that other was not privy to the Contract he making the Lease after It was likewise held Simony for a Father to present his Son by vertue of a purchase of the next Advowson which he made in the presence of his Son a Clerk when the Incumbent was not like to live by reason of a Sickness whereof he soon after died Otherwise in case the purchase had been made in the absence of the Son as is hereafter mentioned But per Hutt it was held Simony to purchase the next Advowson the Incumbent being sick The like in Winchcombes Case against the Bishop of Winchester and Puleston a Case hereafter often Margined on several accounts where it was held Simony in one Say who was presented upon a Contract which he made with the Patron the Incumbent being then sick for Ninety pound to present him when the Church should be void And as to Resignationbonds Sir Simon Degge affirms That in the case of Jones and Lawrence the sense of the Court was that if a Man be preparing his Son for the Clergy and have a Living in his disposal which falls void before his Son is capable thereof he may Lawfully take a Bond of such person as he shall present to resign when his Son becomes capable of the the Living otherwise in case the Patron take a Bond absolutely to resign upon request without any such or the like cause as for avoidance of Pluralities Non-residence or other such reasonable design The like you have in Babbington and Wood's Case hereafter mentioned So that it seems Bonds and Obligations given and taken upon just and honest grounds to resign are not in themselves Simoniacal Otherwise where ther 's is corruption in the case accompanied with some subsequent Act in pursuance thereof And although presentations made upon Simoniacal Bonds and Obligations are void in Law yet such Bonds themselves though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. 6. B. brought Action against C. upon an Obligation The condition whereof was that whereas the Plaintiff did intend and was about to present the Defendant to the Benefice of Stow if the Defendant at the request of the Plaintiff should resign the same to the hands of the Bishop of London then the Obligation to he void The Defendant demanded Oyer and demurr'd and adjudg'd for the Plaintiff for the resignation might be upon a good intention to prevent pluralities or some other cause and it shall not be intended Simony if it be not specially pleaded and averr'd and Mich. 37. and 38. Eliz. Between Jones and Lawrence it was adjudg'd accordingly and affirmed an Error which the Court viewd and thereupon Judgement was given for the Plaintiff 7.
before there be an Attainder but that is prevented before by the Pardon And so here this Pardon prevents the Sentence Declaratory and so no title can accrue to the Ordinary Walmsley contra if Patron be charged by the Sentence he may plead the Pardon But if a Quare Impedit be brought by a third Person the Pardon of the King shall be no Barr to him for the title appears not to him but only the punishment Anderson they may proceed to Sentence Declaratory notwithstanding the Pardon for the Pardon is of the punishment but the Sentence extends not to that but only to declare that the Church is void Glanvile in 16. Eliz. a man was deprived of his Benefice for Incontinency and after he was pardoned and restored Walmsley I doubt much whether the King can pardon Simony And Williams said that the Proctors of the Civil Law said that neither the Pope nor the King could pardon Simony quoad culpam but onely quoad poenam they may And the Court at last said that if the parties would not demurr they would hear the Doctors on this matter 14. In Calverts Case against Kitchin and Parkinson in the Exchequer where K. not knowing of any Simoniacal agreement was Presented Instituted and Inducted to the Church of D. and this after the Statute of 31. Eliz. cap. 6. And this Presentation belonging to the Queen by reason of this Presentation for Simony by force of the said Statute the Queen presented one B. and before that B. was Admitted and Inducted the Queen died whereupon the King presented C. without any recital or mention of the Presentation made by the Queen and without any revocation actually made of the said first Presentation and thereupon C. is Admitted and Instituted and for Tithes as Parson he brought Trespass In this Case one of the points in Question was if within the said Statute here be Simony in the Patron and not in the Parson if this ought to prejudice the Parson or not In this point Hitchcock conceived that although the Presentee in this Case was not party to this corrupt agreement yet he shall be prejudiced by it although not so prejudiced thereby but that he may be capable to be presented again to the same Benefice but hac vice the presentation of him is void for as Littleton saith the Presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth who in the time of vacation hath power to charge it and so by his Act had made it subject to the Forfeiture and therefore the person who cometh under him shall be prejudiced c. Damport to the contrary The Patron and a stranger corruptly agree to present K. whereupon he is presented If this shall be void against K. is the question To this he said that at the Common Law if one be Simoniacally presented yet this is not void until the Presentee be deprived and if before the said Statute such a corrupt Presentation had been made the Incumbent and Ordinary being free then no Presentation should ensue and he vouched the saying of Lindwood to be accordingly but if money be given by the friends of the Presentee and after the King had notice thereof and Assent then it is not punishable but pardonable at the discretion of the King and now by him the Statute provides no punishment for the Parson when the Patron onely consents to the Simony for he observed that after the said stat of 31. Eliz. had appointed a punishment for the Patron then in the last part of this Branch the words are The persons so corruptly taking c. shall be incapable of the Benefice aforesaid and so it seemeth that the intent of the Statute is not to punish any party but he that is to the Simony and this is also explained to be so by other clauses in the Statute for another clause inflicts punishment upon the Ordinary if there be any corruption in him and another clause inflicts punishment upon him who is party to a corrupt Resignation and so in all the clauses those only who are partakers of the crime shall be punished c. And in this Case was no agreement assented unto by the Parson and this diversity also seems to be good that if A. hath the Presentation and B. the Nomination to a Benefice and the Presentor upon a corrupt agreement makes a presentation unknown to the Nominator here the Nominator shall not be prejudiced within this Statute c. In this Case Bromley Baron declared his opinion that the intent of the Statute was to eradicate all manner of Simonies and therefore the words are not if any man give money to be presented but they are If any present for money and the jurors here found 20 l. to be given and nothing for what it was given or to whom it was given for if money be the meed a Presentation is void and therefore if I. S. be patron of the Church of D. which is void and a stranger saith to me procure the Presentation for A. and you shall have 100 l. and he procured A. to be Presented here if the Patron had notice of the money given to me this Presentation is void but otherwise not And in this Case without notice of the Parson the Admission and all that ensued thereupon is void by reason of the Simony in the Patron and it is void as to the Parson also and if in this Case we are not within the words of the Statute yet we are within the intent clearly c. And Panormitan saith That Simonia est studiosa voluntas emendi vel vendendi aliquid spirituale vel spirituali annexum cum opere subsequente Altham Baron was of the same opinion and said that the words of the Statute are That if a Presentation be made for money it shall be void and that the King may present that turn and therefore the want of privity in the Incumbent is nothing to the purpose as to the avoiding of the Benefice but his want of privity availeth to excuse him of being Simoniacus yet he is Simoniace Promotus and therefore the Presentation is void and the King shall have it by the express words of the Statute and therefore as it seems if in this Statute there had been an express saving of the Interest of the Incumbent by reason of his innocency yet such a saving of Interest had been void and repugnant in respect that it was expresly given to the King before as it is in Nichols Case in Plowden upon the Stat. of 1. H. 7. c. And to prove that by the Simony in the Patron that the Parson shall be prejudiced he vouched 42. E. 3. fo 2. Snig Baron concurr'd in opinion with the former and said that as to the point of Simony by the Civil Law it was punishable by Deprivation and the guilt of the Patron should prejudice the Parson as to matter of commodity in the Parsonage and at the Common Law
if the Parson will plead such Presentation he should be prejudiced and here by the Incumbency the words of the Statute will not be satisfied c. Also it seemeth that if I. S. hath an Adowson and A. purchase the next avoidance to the intent to present B. and the Church becomes void and A. presents B. this is Simony by averment as by good pleading the Presentation of B. shall be adjudged void c. Tanfield accordingly as this Case is here is Simony by the Civil Law and the party had his Benefice by Simony although he be not cognusant thereof Secondly admit here was not Simony by the intendment of the Civil Law yet the Statute hath made an avoidance of the Benefice in this Case although it be not Simony for the Statute speakes not one word of Simony throughout the Act and yet by express words it doth avoid such Presentations as this is and as to the Civil Law such Benefice is to be made void by Sentence Declaratory but it is not void ipso facto as it seems in the Case where a common person was consenting to the Simony but the text of the Civil Law says expresly that the Church ought not to be filled Corruptive or by corruption and the Civil Law expresseth such a person as in this Case by Simoniace promotus and calls him who is Particeps Criminis Simoniacus and he who is Simoniacus is by the Civil Law deprived not only of the Benefice ipso facto but also is deprived to be a Minister and adjudged guilty in culpa poena Petrus Benefieldus saith that if a Friend give money to a Patron to make a promise to him c. and the Incumbent pays it such an Incumbent is Simoniacus by the Civil Law and so if the Incumbent pay the money not knowing it till after the induction yet he is Simoniacus and by him if a Friend give money and the Parson is thereupon presented though the Parson knew not of the money given yet he shall be deprived of the Benefice and this difference was certified by Anderson and Gawdy to the Council-Table upon a Reference made to them by the King touching the filling of Benefices by corrupt means And the Statute of purpose forbears to use the word Simony for avoiding of nice construction in the Civil Law as to that word and therefore the makers of the Act set down plainly the words of the Statute that if any shall be promoted for money c. So that by these words it is not material from whom the money comes and then in such Cases for the avoiding of all such grand Offences a liberal Construction ought to be made as hath been used in such cases c. for which and many other reasons mentioned in this Report he commanded Judgment to be entred for the Plaintiff 15. Sr. George Cary being seised of an Advowson granted the next Avoidance to his second Son and died and after the Son corruptly agreed with I. S. to procure the said I. S. to be presented to this Benefice and the second Brother knowing thereof it was agreed that for the perfecting of the agreement the second Brother should surrender his Grant and Interest to the elder Brother which elder Brother not knowing of the said corrupt agreement presented the said I. S. who was Instituted c. all shall be void for he is here presented by reason of this corrupt agreement between the Patron who then was and the Parson and the elder Brother was only used to convey a bad gift by a good hand and all had reference to the corrupt agreement with the Assent of the Patron who then was 16. The King brought a Quare Impedit against the Archbishop of Canterbury Sr. John Hall and Richard Clark for the Church of M. and declares that Richard White was seised of the Mannor to which the Advowson belonged And the 6. Jac. by Indenture he covenanted to stand seised to the use of himself and his Wife for their lives and to the heirs of Richard White And after White presents one Boynton and dyes and his Wife marries with Sr. John Hall who the first of June 6. Jac. by deed grants proximam Adocationem to two to this intent that he might receive of such a Parson that he presented all money as should be agreed between Grantor and Grantee And that this was done Bointon lying in extremis And then the 26. Jan. 16. Jac. there was a corrupt agreement between Sr. John Hall and one of the Grantees that for 200 l. to be paid by the Clerk Blundell that the other Grantee should present him And the first of February Blundel pays Sr. John Hall the money and the second day he was Presented Instituted and Inducted accordingly And that upon this it appertained to the King to present The Bishop pleads but as Ordinary Sr. John Hall makes a title and traverses the corrupt agreement The Incumbent pleads by Protestation that there was not any corrupt agreement as it was alledged and not answers whether the money were paid or not but that he is Parson Imparsonee of the Presentment of But 16. Jac. after such an agreement scil 17. Febr. he was presented by the Letters Patents of the King to his Church and never answers to the Simony and it was held by the Court to be naught and only pleaded to hinder the Execution before the Justices of Assize if the trial went against the Patron And further in that Case between Hall and Blundell it was said by Davenport that this Parson being presented by simony is disabled to this Church for ever and cannot be presented to this Church again as it was adjudged in the Lord Windsors Case But it was said by Richardson if he had said absque hoc That he was in ex Presentatione of c. it had been good enough which was granted Henden two exceptions had been taken 1. That the Incumbent doth not shew what Estate or Interest the King had to present him which doth not need if the King brought a Quare Impedit then it is a good answer to say that he is in of his Presenting But if it be brought by a stranger then he ought to shew the title in his Presentment And he alledged the Statute of 25. E. 3. which enables the Incumbent to plead by Writ of the Law 41. Eliz. There was a Quare Impedit brought for the Church of Danell a presentation by the King was pleaded without making a title and it was admitted good And in many Cases it is more safe not to make a title 2. Because that he pleaded a Presentation by the King he is disabled As to that he said that before he be convicted of Simony he may be presented But by Crook in Sathers Case that if he be presented before conviction yet it is a void Presentation And it was so agreed by the Court and they resolved the plea was nought because he
answers nothing to the Simony for the Protestation is not any answer wherefore Judgment was given for the Plaintiff 17 F. Libels in the Ecclesiastical Court for Tithes and a Prohibition was prayed upon a Suggestion that he came to the Church by Simony By the Court a Prohibition ought to be granted upon a surmise only that he came to the Church by Simony Then Honden shewed that it was found by verdict in the Kings Bench that he came in by Simony And upon that verdict there was a Decree in the Court of Wards accordingly And then the Court inclined to grant a Prohibition And the Case here was that F. being convicted of Simony the King presents Clapthorn who was Admitted Instituted and Inducted And afterwards he takes another Benefice above the value of 8 l. by which the other was void Yet by the Assent of the Lord Windsor Patron F. continued possession And by Richardson he cannot be any way removed until Lapse incurr 18. It was said by the Court in Sr. John Paschall's Case against Clark upon evidence that if the Patron present one to the Advowson having taken an Obligation of the Presentee that he shall resign when the Obligee will after three Months warning that that is Simony within the Statute of 21. Eliz. cap. 16. 19. A. Scised of a Mannor with an Advowson Appendant S. comes to A. and promises that if he would present him c. after the death of the now Incumbent he would give him Seventy pounds to which he agreed And upon that it was agreed between them that the next avoidance shall be granted to B c. the Incumbent dies B. presents S. who continues lacumbent from 27 Eliz. until the 7 th of King James Than A. grants the Mannor cam pertinent to Winchcombe in Fee S. the Incumbent dies 7 Jac. And the King presents Pulleston by the Title of Simony and Winchcombe brought a Quare Impedit and adjudged that it doth not lie In which Case two points were resolved 1. That that is Simony First because there was a corrupt Contract for the Advowson Note that in the Stat. of 31 Eliz. there is not word of Simony for by that means then the Common Law would have been Judge what should have been Simony and what not Secondly although that the prochein Avoidance might be bought and sold bona fide without Simony yet it was so granted to B. to perform the corrupt Contract 2 Jac. was vouch'd that it the Father purchas'd the prochein Avoidance and presents his Son after the death of the Incumbent that is not Simony and that it was accordingly judged in 42 and 43 Eliz. It was Smith and Shelborns Case But by Hubbard that if in the grant of the Prochein Avoidance it appears that it was to the intent to present his Son or his Kinsman and it was done accordingly that is Simony In the 7th Jac. In the Exchequer Calvert against Parkinson The Cosin of C. being Clerk comes to the Grantee of the prochein Avodance and promises him Twenty pounds and Twenty pounds per an if he will present C. to the Church quando c. C. not knowing any thing of the Contract is presented accordingly This is Simony Fortiori in this Case where S. himself who was to be presented was party to the first motion of the Contract for presentation 2. It was resolved that the death of the Simoniacal Incumbent doth not hinder but that the King may well present for the Church was never full as to the King and that Turn is preserved to the King by force of the Statute yet it seems the Church is so full that a Stranger may not present for usurpation for it is not like 7 Rep. 28. where the King is to present by lapse And there are many Cases wherein the Church may be full or void in effect when there is a Simoniacal Incumbent Hubbard said that if A. be obliged to present B c. and he presents by Simony yet the Obligation is forfeited c. The rightful Patron may have a Quare Impedit after the Six months against the Incumbent of an usurper that is in by Simony And by the Court to say the Church was full for Six months is no plea when he is in by Simony Warburton and Hutton cited Doctor Hutchinsons Case 10 Eliz. A Parson preferrs his Bill for Tithes the Parishioner pleads that he was presented by corruption c. and by Simony and a prohibition was granted notwithstanding that the Parson pleaded pardon of the Simony by the King and it seem'd that it was now triable by the Common Law Note 7 H. 7. 37. and Mich. 40. and 41 Eliz. Gregory against Ouldham In debt upon an Obligation to perform certain Covenants which in truth were Simoniacal Contracts and the Plaintiff recovered for it was said that that obligation is collateral and the Law does not at all look upon or take notice of the Simony eo nomine for it is not once named in the Statute but only corrupt giving c. 20. In debt upon an obligation it was said that it was made upon a Simoniacal contract for presentation to the Church with the cure of Souls and so it was for Simony All that was averr'd the Court held to be matter debors and not appear'd within the Deed and for that the Plaintiff had Judgement For no such averment is given by the Statute Note the Statute doth not make the Bond Promise or Covenant void but the Presentation And so adjudged Pasch 40. Eliz. Rot. 1745. C. B. Case of Gregory against Oldbury Co. Inst par 3. cap. 71. 21. If an innocent Incumbent be in by a Simoniacal Contract to which he was no way privy he is not Simoniacus though Simoniace promotus and as he is not Simoniacus so neither Perjurus for Simony seldom goes without some kind of Perjury An Action was brought upon 5 Eliz. for Perjury before one of the Masters of Chancery who had power to take an Oath Adjudged Quod nihil cap. per breve And the reason was because he does not shew that the Oath was in Court. By Whitlock they were called Masters of Chancery because they were Priests and Clergy-men in ancient time and that was the reason that the Lord Chancellor had the disposal of the petty Offices of the King for the preferment of these Clerks that was also the reason that they could not Marry until they were enabled by the Stat. c. 22. Parson L. was convented before the High Commissioners and they would put him to his Oath touching Simony supposing it to be committed by him And a Prohibition was granted that none shall be compelled to accuse himself upon his Oath where he is to incurr a temporal punishment at the Common Law or a temporal loss as in that case of his Church So for Vsury Note Dyer 175. in the Margin And Cook Chief Justice vouch'd 10 Eliz. Smiths Case an Atturney of
Fees wherewith Churches have been endowed otherwise in possessions of the Church newly purchased by Ecclesiastical persons 10 That such as Abjure the Realm shall be in peace so long as they be in the Church or in the Kings High-way 11 That Religious Houses shall not by compulsion be charged with Pensions resort or Purveyors 12 That a Clerk Excommunicate may be taken by the Kings Writ out of the Parish where he dwells 13 That the examination of the Ability of a Parson presented unto a Benefice of the the Church shall belong unto a Spiritual Judge 14 That the Elections to the Dignities of the Church shall be free without fear of any Temporal power 15 That a Clerk flying into the Church for Felony shall not be compelled to abjure the Realm 16 And lastly That the Priviledge of the Church being demanded in due form by the Ordinary shall not be denied unto the Appealor as to a Clerk confessing Felony before a Temporal Judge 2. In conformity to the premisses there were other Statutes after made in the time of King Ed. 3. whereby it was Enacted 1 That the goods of Spiritual persons should not without their own consents be taken by Purveyors for the King 2 That the King shall not collate or present to any vacant Church Prebend Chappel or other Benefice in anothers Right but within Three years next after the Avoidance 3 That the Temporalties of Archbishops Bishops c. shall not be seized into the Kings hands without a just cause and according to Law 4 That no waste shall be committed on the Temporalties of Bishops during Vacancies and that the Dean and Chapter may if they please take them to Farm 5 And lastly That the Lord Chancellor or Lord Treasurer may during such vacancies demise the Temporalties of Bishopricks to the Dean and Chapter for the Kings use 3. And as there are Articuli Cleri so there are also Articuli Religionis being in all thirty nine Agreed upon at a Convocation of the Church of England Ann. 1562. Ratified by Q. Elizabeth under the Great Seal of England Confirmed and Established by an Act of Parliament with his Majesties Royal Declaration prefixed thereunto Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James The said Subscription referrs to three Articles 1. That the Kings Majestie under God is the only Supream Governour of the Realm and of all other his Highness Dominions and Countreys c. 2. That the Book of Common Prayer and of Ordaining of Bishops Preists and Deacons containeth nothing in it contrary to the Word of God c. 3. That he alloweth of the said thirty nine Articles of Religion and acknowledgeth them to be agreeable to the Word of God By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto but the Delinquent against the Canon of King James is to be prosecuted and proceeded against by the Censures of the Church And it is not sufficient that one subscribe to the Thirty Nine Articles of Religion with this Addition so far forth as the same are agreeable to the Word of God For it hath been resolved by Wray Cheif Justice and by all the Judges of England That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute But this is no other then Conditional 4. The Circumspecte agatis is the Title of a Statute made in the 13 th year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges wherein the Kings Prohibition doth not lie As in Case the Church-yard be left unclosed or the Church it self uncovered the Ordinary may take Cognizance thereof and by that Statute no Prohibition lies in the Case Nor in case a Parson demands his Oblations or the due and accustomed Tythes of his Parishioners nor if one Parson sue another for Tythes great or small so as the fourth part of the Benefice be not demanded nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid nor if the Prelate of a Church or a Patron demand of a Parson a Pension due to him nor in the Case of laying violent hands on a Clerk nor in Cases of Defamation where Money is not demanded nor in Case of Perjury In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute notwithstanding the Kings Prohibition So that the end of that Statute is to acquaint us with certain Cases wherein a Prohibition doth not lie And the Statute of 24 Ed. 1. shews in what Case a Consultation is to be granted And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duely granted provided that the matter of the Libel be not enlarged or otherwise changed CHAP. XLIV Of several Writs at the Common Law pertinent to this Subject 1. What the Writ of Darrein Presentment imports in what case it lies and how it differs from a Quare Impedit 2. Assise de utrum what and why so called 3. Quare Impedit what for and against whom it lies 4. What a Ne admittas imports the use and end thereof 5. In what case the Writ Vi Laica removenda lies 6. What the Writ Indicavit imports and the use thereof 7. What the Writ Advocatione Decimarum signifies 8. Admittendo Clerico what and in what Case issuable 9. The Writ Beneficio primo Ecclesiastico habendo what 10. That Writ Cautione Admittenda and the effect thereof 11. The writ of Clerico infra Sacros ordines constituto non eligendo in Officium What the use or end thereof 12. The Writ Clerico capto per Statutum Mercatorum what 13. What the Writ of Clerico convicto commisso Goalae in defectu Ordinarii deliberando was 14. What the Writ of Annua Pensione was anciently 15. The Writ of Vicario deliberando occasione cujusdam Recognitionis what 16. Three Writs relating to Persons excommunicated 17. Assise of Darrein Presentment brought after a Quare Impedit in the same cause abates 18. Difference of Pleas by an Incumbent in respect of his being in by the Presentment of a stranger and in respect of his being in by the Presentment of the Plaintiff himself 19. Notwithstanding a recovery upon a Quare Impedit the Incumbent continues Incumbent de facto until Presentation by the Recoverer 20. Of what thing a Q. Imp. lies and who shall have it 21. Who may have a Quare Impedit and of what things 22. How and for whom the Writ of Right of Advowson lies 23. What the Writ de jure patronatus and how the Law proceeds thereon 24. The Writ of Spoliation what and where it lies 25. The Writ
The causes thereof p. 206 207. Sect. 2. Where cognizable p. 122. Sect. 21. Whether a Bar to Tithes due before p. 398. Whether the Church be void pending the Appeal from a Sentence of Deprivation p. 314. Sect. 17. Delegates-Court how Constituted p. 117. Sect. 13. Whether they may Excommunicate or grant Letters of Administration p. ibid. Dilapidation what p. 173. Sect. 1 2 3. The remedies in Law against it and how many ways it may happen ibid. Whether it be a sufficient cause of Deprivation p. 175. Sect. 5 9. and p. 315. Sect. 19. Diocess whence that word derived p. 101. Sect. 3. What it properly signifies p. 275. Sect. 8. Discharge of Tithes how many ways it may be p. 398. In what Cases it may be or not p. 358. Sect. 12. p. 368. Sect. 38. Dispensation the true definition thereof p. 112. Sect. 9. By whom Dispensations may be granted and in what Cases p. 107 c. Sect. 8. Anciently had from the Court of Rome ibid. It may be without the word Dispensamus p. 302. Sect. 18. They are grantable by the King qua talis p. 5. Sect. 7. p. 109. Sect. 8. The granting thereof is eminently in the Crown p. 6. Sect. 9. The Archbishop of Canterbury may be Statute grant them ibid. p. 19. Sect. 11. The difference between such granted by the Pope formerly and those granted by the King now p. 293. Sect. 2. In what Case grantable by the Guardian of the Spiritualties p. 40. Sect. 3. What remedy in Law in Case he refuse so to do ibid. Divorce what 493. Sect. 1. The Causes thereof ibid. Whether if for Adultery it dissolves the Marriage à vinculo p. 495. Sect. 3 c. Donative Churches what p. 202. Sect. 16. The Original thereof p. ibid. By whom visitable p. 34. Sect. 18. The Law concerning Donatives p. 262. Sect. 18. How they cease to be such and become Presentative p. 201. Sect. 16. and p. 263. Sect. 21. Whether a Donative in the Kings gift may be with Cure of Souls p. 218. Sect. 23. Dotards whether Tithable p. 405. Doves in a Dove-house what Tithes they pay p. ibid. Druids their Idol-Temples when first abolished in England p. 16. Sect. 4. Drunkard whether actionable to call one so p. 516. Sect. 3. p. 521. Sect. 14. Dubritius Archbishop of Carlegion in Wales p. 17. Sect. 6. Duplex Querela what p. 275. Sect. 8. E. ECclesia whence that word derived p. 136. Sect. 1. Ecclesiastical Laws of England the Antiquity thereof p. 129 c. Sect. 44. Edgar King his Zeal for the Church in his Oration to the Clergy of England p. 97. Sect. 1. Eggs how when and in what Case Tithable p. 405. Election of Bishops how and by whom to be made p. 43. Sect. 2. Eleutherius Pope what style be gave K. Lucius p. 4. Sect. 4. p. 111. s 8. Elopement what it signifies p. 508. Sect. 13. Episcopal Authority derived from the Crown p. 30. Sect. 10. Episcopal Jurisdiction endeavoured to be taken away p. 36 37. Sect. 2. Episcopocide in a Clerk Petty Treason p. 35. Sect. 19. Estovers burnt in a house whether Tithable p. 372. Sect. 46. p. 392. Ethelbert King of Kent by whom Canterbury was given to St. Austin for his See p. 13. Sect. 1. p. 17. Sect. 5. Whether he built St. Pauls Church in London p. 17. Sect. 7. Ethelwolph Son and Successor to Egbert the first sole King of England he was Bishop of Winchester p. 36. Sect. 19. And the first that enriched the Church of England with Tithes p. 348. Sect. 1. Euginus whether he were the first that styled himself Pope the first that consecrated Churches and the first that decreed Godfathers and Godmothers in Baptism p. 49. Sect. 7. Examination when and by whom to be performed p. 270 Sect. 1 3. Excommunication what p. 624. Sect. 1 2. Twofold ibid. What intended by Excommunication ipso facto p. 626. Sect. 4. What the causes in Law of That Excommunication p. 628. Sect. 8. In what manner Excommunication is to be pronounced p. 626. Sect. 6. By whom it is to be certified and how p. 635. Sect. 18. Whether the Ordinary may take Bond of an Excommunicate for his submission in order to absolution p. 637. s 25. whether Excommunication in a Patron be sufficient cause for a Bishop to refuse the Clerk presented by such Patron p. 266. Sect. 32. F. FAculty or Court of Faculties or Faculty Office what p. 107. Sect. 8. The Archbishop of Canterbury impower'd by the Statute to grant Faculties ibid. and p. 19. Sect. 11. The force and efficacy thereof to Commendams or two Benefices p. 107 109 110. Sect. 8. The difference between a Faculty to Take and a Faculty to Retain a Benefice p. 110. Sect. 8. Fallow-grounds whether Tithable p. 405. Fees for Probate of Testaments what due by Statute p. 105 106. Sect. 6. Fâ—nny-Lands drain'd whether they pay Tithes presently p. 406. Ferae naturae Creatures of that kind whether Tithable p. 405. First-fruits by and to whom payable p. 337. Sect. 2. vid. Annates Fith taken in the Sea or in a River Pond or Piscary whether Tithable and how p. 406. and p. 367. Sect. 36. p. 379. Sect. 68. p. 375. Sect. 53. Flamins how many anciently in England p. 16. Sect. 4. Flax what Tithes it pays and when p. 407. Forest-Lands whether Tithable or not and by whom p. 407 408. Not scituate in any Parish to whom the Tithes shall be paid p. 408. Whether Priviledg'd from Tithes whilst in the Kings hands otherwise in the Subjects p. 369. Sect. 41. Whether they are Priviledged from Tithes if in the hands of the Kings Patentee or Grantee p. 399. 401. Fowl taken in what Case Tithable or not p. 408. Fraud in setting forth Tithes whether treble dammages in that Case p. 380. Sect. 72. p. 381. Sect. 76. Freehold f the Church or Chancel in whom it is p. 137. Sect. 3. p. 83. Sect. 4. p. 139. Sect. 5. p. 142. Sect. 9. p. 150. Sect. 22. p. 151. Sect. 25. p. 155. Sect. 38. Frigidity in the Man pleaded by the Woman how the Civil Law proceeds thereon p. 493. Sect. 1. Fruit-Trees what Tithes they pay and when p. 408. Fuise whether Tithable p. ibid. G. GArba or Decima Garbarum what it signifies p. 381. Sect. 78. Gardens how Tithable p. 409. p. 371. Sect. 43. Geoffry Plantaginet Son to King H. 2. was Bishop of Lincolne p. 36. Sect. 19. Glass-windows Painted in the Isle of a Chappel if pulled down whether Actionable p. 138. Sect. 5. Gleab what p. 409. The Law concerning the Tithes thereof ibid. p. 410. Gleab of a Parsonage Impropriate and Leased whether Tithable ibid. p. 368. sect 38. Whether Gleab in Lease pays Tithe p. 362 363. s 26. Whether the Freehold of the Gleab during a Vacancy be in the Patron or not p. 183. s 9. Gleab manured and sowed by an Incumbent that dies before Harvest who shall have the Corn p. 318. s 3. Godfathers
Cognizable p. 137. Sect. 3. 4 p. 143. Sect. 10. p. 152. Sect. 26. In what Case it may be Cognizable at the Common Law p. 166. 15. Whether within the Cognizance of the Archdeacons Visitation p. 60. Sect. 7. Who and what shall be charged with such Reparations and how p. 137 138. Sect. 4. p. 144. Sect. 11. p. 145. Sect. 14. p. 147 148. Sect. 19. p. 150. sect 23. p. 152. Sect. 26. p. 175. Sect. 4. p. 153. Sect. 30. p. 157. Sect. 41. p. 149. Sect. 22. How the Tax for such Reparations shall be apportioned between Landlord and Tenant p. 154. Sect. 34. By whom the Chancel shall be Repair'd p. 175. Sect. 4. Inheritances not to be therewith charged in perpetuum p. 144. Sect. 13. Whether a Tax for such Reparations may be made by the Church-wardens only p. 148. Sect. 20. How to be in Case of Union of Churches p. 146. Sect. 16. How in respect of the Fabrick of the Church in distinction from that of the Ornaments thereof p. 154. Sect. 34. Whether those of a Chappel of Ease shall contribute to the Repairs of the Mother-Church p. 146. Sect. 16. p. 152. Sect. 28. p. 153. Sect. 33. p. 156. Sect. 39. p. 152. Sect. 28. Whether the Land next adjoyning â—o a Church-yard shall Repair the Fences thereof p. 166. Sect. 15. Residence in what Cases not required p. 320. Sect. 9. Resignation what p. 284. Sect. 3. Resignation-Bonds whether good in Law p. 189. Sect. 7. What words sufficient in Law to import a Resignation p. 191. Sect. 13. To whom it may be made p ibid. How and to whom the Resignation of a Donative may be made p. 191. Sect. 14. Whether it may be made conditionally p. 278. sect 14. Whether the Church becomes void thereby before the Bishop accepts it p. 261. Sect. 17. Review or the Court of Review or Commission Ad Revidendum p. 118. Sect. 15. The Ground thereof p. 4. Sect. 5. Revocations in Law of the Kings Presentation p. 266. Sect. 31. Right of Advowson how and for whom that Writ lies p. 649. Sect. 22. Right of Tithes Cognizable in the Ecclesiastical Court p. 127. Sect. 42. Rogation-weck whence so called with the Original thereof p. 130. Sect. 44. Roots of Coppice-wood grubbed up whether Tithable p 437. S. SAcriledge what whence so called how many ways it may be committed and the severe punishments thereof p. 528 c. The Sacrilegious were not anciently allowed the Sanctuary p. 141. sect 8. Saffron what Tithes it pays p. 438. To whom whether as great Tithes to the Parson or as small Tithes to the Vicar p. ibid. p. 198. Sect. 8. p. 361. Sect. 21. p. 366. Sect. 32. Salary of a Chaplain Triable in the Ecclesiastical Court p. 198. Sect. 4. Salt whether Tithable p. 438. Simpson whether the first Archbishop of York by whom established p. 14. Sect. 2. Sanctuary the Law thereof anciently p. 141. Sect. 8. Heretofore the foundation of Abjuration ibid. Not allowed to Traitors nor Sacrilegious persons p. 142. Sect. 8. Saxon Kings their care for the Government of the Church of England p. 97. Sect. 1. Their zeal for erecting and endowing of Churches p. 208. Sect. 4. How severely they punish'd Adultery p. 470. Sect. 4. Scotland when the Bishops thereo revolted from the Archbishop of York p. 14. Sect. 2. Seals of Office of Bishops c. how to be engraven and used p. 27 28. § 5. Scutcheon or Banners taken out of the Church by the Parson whether and for whom Action lies in that Case p. 61. Sect. 2. Seats in Churches p. 137. Sect. 3. p. 138. Sect. 4. p. 142. Sect. 9. p. 154 155. Sect. 36. p. 147. Sect. 18. p. 149. Sect. 22. How and by whom to be disposed of p. 137. Sect. 3 4. p. 149. Sect. 21. p. 150. Sect. 22. p. 154. Sect. 36. p. 155 156. Sect. 38. They belong of Right to the Ordinary to dispose of p. 138. Sect. 5. p. 140. Sect. 7. p. 142. Sect. 9. p. 158. Sect. ult p. 157. Sect. 42. p. 151. Sect. 25. Whether the Ordinary hath any thing to do with Noble men's Seats in Churches p. 151. Sect. 25. p. 157. Sect. 42. Custome may as to the Body of the Church six the power of disposing the Seats in the Church-wardens p. 151. Sect. 25. The grant of such a Seat to a Man and his Heirs whether good in Law p. 138. Sect. 4. To whom the chiefest Seat in the Chancel properly belongs p. 141. Sect. 7. The Cognizance of Seats in Churches properly belongs to the Ecclesiastical Court p. 157. Sect. 42. Whether he who having Lands in the Parish but living out of the Parish be chargeable with the Repairs of the Seats of the Parish-Church p. 150. Sect. 23. Sees or Bishops Sees whence so called p. 347. Sect. 1. Sepulchres and Monuments in Churches or Church-yards how and where the defacing thereof is punishable p. 142. Sect. 9. Sheep the Law in reference to the Tithe thereof as also of their Pasture and their Wool p. 438 439. p. 464. p. 359 360. Sect. 16 17. Sidemen what their Office is p. 163. Sect. 6. Anciently called Synods-men or Testes Synodales p. ibid. Sect. 6. in the Margent Significavit what that Writ ought to contain p. 631. Sect. 10. p. 632. Sect. 12. p. 649. Sect. 19. p. 635. Sect. 21. Silva Caedua the Law in reference to the Tithes thereof p. 439 440. Simon the Monk of Walden supposed to be the first Canonist in England p. 132. Sect. 44. Simony whence so called a Description thereof p. 537. Sect. 1. How many ways it may be committed p. 539 540. Sect. 5. p. 541 542. Sect. 8. The penalty thereof p. 537. Sect. 1. A Barr in Law to the Parsons demand of Tithes p. 542. Sect. 10. p. 548. Sect. 17. p. 551. Sect. 26. p. p. 34. The difference in Law between Simoniacus and Simoniace promotus p. 538. Sect. 2. p. 552. Sect. 27. In what Case Simoniacal Contracts are Cognizable in the Ecclesiastical Court p. 120. Sect. 17. Slander where Cognizable p. 516. Sect. 4. Son whether he may succeed the Father in an Ecclesiastical Living p. 258. Sect. 10. p. 263. Sect. 20. Spoliation what and in what Case and for whom the Writ of Spoliation lies and where Cognizable p. 439. p. 650. Sect. 24. Striking in the Church or Church-yard how punish'd p. 139. Sect. 6. An Indictment for Striking in St. Pauls Church-yard p. 155. Sect. 37. Stork the History of that Jealous Bird and his revenge on his Adulterous Mate p. 475 476. § ult Stubble of Corn whether Tithable p. 394. Subscription to the 39 Articles what not good p. 163. § 8. Sufficiency or Insufficiency in an Ecclesiastical Officer where Cognizable p. 92. 93. § 19 20. Suffragan Bishops anciently invested by the Ring without the Staff p. 25. § 3. Their use and Office p. 30 31. § 11. Suggestion for a Prohibition in what Case it need not be proved within Six Months p. 374. §
possession p. 272. Sect. 5. Three Writs at Common Law against an Usurper and what they are p. 205. Sect. 1. W WAges of Servants whether Tithable p. 457. Wall of the Church-yard by whom to be repaired p. 144. Sect. 11. Wales when first subject to the Archbishoprick of Canterbury p. 17. Sect. 6. Waste Pastures in what case Tithable or not p. 457. Wax or Bees-Wax how to be Tithed p. 457. Way obstructed for carrying of Tithes Cognizable in the Ecclesiastical Jurisdiction p. 382. Sect. 82. vid. p. 394. Weapons drawn in the Church or Church-yard how punished p. 139. Sect. 6. Indictments thereon discharged and why p. 149. Sect. 22. p. 155. sect 37. Weild or Woad for Diers to whom the Tithe of that Dying Plant belongs whether as Great Tithe to the Parson or as Small Tithe to the Vicar p. 366. sect 32. p. 381. s 77. p. 457 458. Westminster-Abbey by whom Founded p. 328. sect 5. When the Revenues thereof were first vested in a Dean and Chapter of the Collegiate Church thereof p. 15. s 3. How it became Originally the place of Consecration and Coronation of the Kings of England p. 6. Sect. 8. Whitson-Farthings what and when paid p. 73. Sect. 10. Whore whether Actionable and where to call one so p. 519. Sect. 9. Willows whether Tithable p. 457. Witness one single Witness disallowed in the Ecclesiastical Court for sufficient proof whether Prohibition lies in that case p. 113 114. Sect. 11. p. 115. Sect. 12. p. 116. Sect. 12. p. 123. Sect. 26. p. 128. Sect. 43. Witch or the Son of a Witch whether those words are Actionable p. 524. Sect. 24. Wolsey Cardinal impower'd by the Popes Bull to retain the Archbishoprick of York and the Abbey of St. Albans in Commendam p. 111. Sect. 8. Wolstan Bishop of Worcester his Resolute Answer to King William the Conquerour p. 97. Sect. 1. Wood the Law in reference to the Tithe thereof p. 458 to 462. Computed among the Predial and Great Tithes by whom payable whether by the Buyer or the Seller whether due for Fuel spent in the Parishioners house p. ibid. In what sense it may be either Great or Small Tithes p. 365 366. Sect. 32. Whether Wood Tithable at the Common Law p. 372. Sect. 46. Wood for Hedging and Firing whether Tithable p. 369 370. Sect. 42. In what case the Vicar may have the Tithe thereof p. 381. sect 79. Wool the Law in reference to the Tithes thereof p. 198. sect 3. p. 359. sect 16. p. 366. sect 32. Of Sheep pastured in divers Parishes p. 462 c. Of Rotten Sheep whether Tithable p. 359. sect 15. Worcester-Church anciently a Priory p. 74. sect 10. Words of Contention in the Church or Church-yard how punished p. 139. sect 6. Writ of Right of Advowson for whom it lies p. 214 215. sect 17. The Writ De Haeretico Comburendo when taken away and abolished p. ult sect ult Y YOrk the Original of that Metropolitan See p. 14. sect 2. It anciently had a Metropolitan Jurisdiction over all the Bishops in Scotland p. 18. sect 9. ERRATA PAg. 25. lin 25. read Potestatem p. 35. l. 2. Archidiaconum p. 200. l. 37. Provenues p. 203. l. 7. Vicaria p. 205. l. 5. be with the Cure p. 209. l. 3. An. 1505 p. 285. l. 17. to his Father by the true p. 293. l. 31. too late p. 403. l. 38. Mepham's Canon p. 448. l. 23. to the Parson p. 470. l. ult Adulterum p. 471. l. 7. Hoel Dha p. 439. l. 15. Cognatio p. 497. l. 11. Adulterous Wife p. 501. l. 7. Thore p. 503. l. 6. Viro p. 530. l. 40. Crown p. 543. l. 18. Pardon l. 40. Doctors Advertisement THE ORPHANS LEGACY or a Testamentary Abridgment in Three parts viz. 1. Of Last Wills and Testaments 2. Of Executors and Administrators 3. Of Legacies and Devises Where the most material Points of Law relating to that subject are succinctly Treated as well according to the Common and Temporal as Ecclesiastical and Civil Laws of this Realm Illustrated with a great variety of select Cases in the Law of both Professions as well delightful in the Theory as useful for the practice of all such as study the one or are either active or passive in the other By the Author
de facto and by Usurpotion did use to Dispence and by the Stat. of 25 H. 8. cap. 21. the power is taken from the Pope and conferr'd Cumulative on the King And by the Stat. of 25 H. 8. the Archbishop of Canterbury may Dispence in divers cases but that doth not exclude the power of the King 10. In the same Case it was held per Curiam una voce That where a Dean is made a Bishop with a Dispensation from the King to hold the Deanary notwithstanding the Bishoprick such Dispensation continues him Dean as before by force and virtue of his former Title to all intents and purposes so as that he may confirm or make Leases or do any other Act as a Dean as if he had not been made a Bishop at all For before the Cano nor Constitution made at the Council of Laterall for the voidance of the first Benefice by taking another Benefice or Promotion it was lawful and not forbidden so to do and the nature of the Dispensation is to exempt him from the penalty and so it remains as if the Canon had never been made which appears by 11 H. 4. in the Case of the Bishop of St. Davids That such a person that had such a Dispensation being Defendant in a Quare Impedit counterpleaded the Title of the Plaintiff which he could not do by the Statute of 25 Ed. 3. unless he had been the Possessor thereof and he in possession by 4 H. 8. Dyer 1. is one who is and continues Incumbent by Institution and Induction Therefore in this case the first Title and Induction continues And in the same Case it was also agreed That such Dispensation is not any Provision for no new thing is done but the ancient Title continues And in Fitz. N. B. Brief Spoliation such a person may maintain a Spoliation and none can maintain that unless he continue his Institution and Induction Parkhur's Case 6 7 Eliz. Such a Commendam continues to the person be it that the Benefice be void by Resignation And 21 Jac. in a Quare Impedit in C. B. by Woodley against the Bishop of Exeter and Manwayring it was so Resolved and Adjudged and the words of that Dispensation are sufficient for it is to retain it during his life in Commendam aut modo quocunque de jure magis efficaci and all the profits thereto belonging ac caetera facere perimplâ—re quae ad Deconatum pertinent in tam amplis modo forma as if he had not been promoted to be a Bishop with a Non obstante to all Canons c. And so they all concluded That the Dispensation continues him Dean enabling him to Confirm Leases made by the Bishop 11. W. Libels for a Legacy in the Ecclesiastical Court against B. who moves for a Prohibition because he had there pleaded Plene Administravit and proved that by one Witness and they would not allow it Richardson before the Statute of Ed. 6. the proper Suit for Tithes was there and if they allow not one Witness to prove payment a Prohibition shall be granted And he put Morris and Eaton's Case in the Bishop of Winchester's Case where it was Ruled if the Ecclesiastical Court will not allow that Plea which is good in our Law a Prohibition shall be granted as in the Case of Tithes And he said the Case of a Legacy is all one Crook When one comes to discharge a thing by due matter of Law and proves it by one Witness if it be not allowed no Prohibition shall be granted there Richardson Our Case is proof of Plene Administravit pleaded which goes in discharge But if there be enough pleaded which goes in discharge and proves that by one Witness and not allowed a Prohibition shall be granted Hutton said That properly for a Legacy the Suit is in the Ecclesiastical Court although they may sue in the Chancery for it yet the proper Court is the Ecclesiastical Court And they said that they used to allow one Witness with other good Circumstantial proofs if they be not in some Criminal causes where of necessity there must be two Witnesses In one Hawkin's Case Farmor of an Appropriation Libels for Tithes of Lambs for seven years And there payment was proved by one Witness and a Prohibition was granted for Non-allowance Yelverton There may be a difference where the Suit is meerly Ecclesiastical for a Sum of Money as for a Legacy there the payment of the Legacy is of the nature of the thing and the Ecclesiastical Court shall have Jurisdiction of the proof and matter But if one gives a Legacy of twenty Oxen and the other pleads payment of as much money in satisfaction there they cannot proceed but at Common Law for that that the Legacy is altered And if a proof of one Witness is not accepted a Prohibition shall be granted for now it is a Legal Trial 35 H. 6. If the Principal be proper for their Court the Accessory is of the same nature Also the Suit is commenced for a Legacy and the other pleads Plene Administr there they proceed upon the Common Law For they sometimes take that for Assets which our Law does not take It was adjudged in the Kings-Bench That where a Proof by one Witness of a Release of a Legacy is disallowed a Prohibition shall be granted Crook In this Case a Proof of setting out of Tithes by one Witness disallowed a Prohibition shall be granted 12. One was obliged in the Ecclesiastical Court not to accompany with such a Woman unless to Church or to a Market overt And afterwards he was summoned to the Ecclesiastical Court to say whether he had broken his Obligation or not And Ayliffe moved for a Prohibition which was granted for that that the Forfeiture is a Temporal thing And it does not become them in the Ecclesiastical Court to draw a man in Examination for breaking of Obligations or for Offences against Statutes C. Administrator durante Minori aetate of his Brothers Son the Son died and made the Wife of H. his Executrix who called C. to account in the Ecclesiastical Court for the Goods And he pleads an Agreement between him and H. and that he gave 80 l. in satisfaction of all Accounts But they did not accept the Plea for that a Prohibition was prayed to be granted Richardson If the party received the money in satisfaction then there shall not be a Prohibition granted but if there were only an Agreement without payment of money then otherwise Crook It is a Spiritual matter and they have Jurisdiction to determine of all things concerning that But the Agreement prevents that it cannot come into the Ecclesiastical Court G. Libels against B. before the High Commissioners for an Assault made upon him being a Spiritual person And Attbowe prayed a Prohibition for that although their Commission by express words gives them power in that case yet that Commission is granted upon the Statute of