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Ptbrar^,

IN THE CUSTODY OF THE

BOSTON PUBLIC LIBRARY.

SHELF N°

T.I

:f\'

ECCLESIA^ICAL
LAW.

By RICHARD BURN, L. L. D.

Chancellor of the Diocefe oiCarliJle^ and Vicar of
Orton^ in the County of Wejlmorland.

The S E e O N D E D I T I O N. ,

In FOUR VOLUMES.

V O L. I.

LONDON:

Printed by H: Woodfall and W. Strahan, Law-Printers
to the King's moil Excellent Majefty \

For A. Millar; and Sold by T. Cadell,

pppofite Catherine-Street, in the Strand*

M. DCC. LXVIL

f T O '^ 1

- v-*^ f—H.

W A

.It

.0 :ji3jUi^i JiiJ

T O H I S

Mofl Sacred MAJESTY,

gEQRGE the Third,

Bv tiie Grace of God, Klne of
Great Britain, France, and
Ireland, Defen<ier of the Faith,
and of the Church of England
and alfo of Ireland in Earth
the Supreme Head.

May it pleafeyour MajeJIj,\

ABodik treating profeffedly of the
law of the church, navurally ad-
dreffeth your Majefty under your legal
title.

A 2 However

DEDICATION.

However inconliderable the autlior
rnay be in himfelf, or how imperfect
foever his work may be in the execu-
tion, he is imboldened to lay the fame
at your Majefty's feet, from that re-
gard which you have manifefted in all
your declarations and adions for the
fubjeft matter it contains.

Law is the {lability of the throne,
and the fccurity of the fubjeds in all
that can be dear to them in this world.

Yoiir Majefty is defcended from a
race of princes, who made the law of
the land the conftant rule of their con-
duct : and their reigns Were happy and
profperous.

In thefe our days, it is the glory of
the Britiih nation, that we have a King
at our head, who excels every fubje£t
he hath, in publick virtue, love to our
native country, reverence for its infti-
tutions and laws, and every amiable
difpoiition.

SUPREMACY is a word, which,
in different ages, hath conveyed differ-
ent

eat meanings.— In the times of- pur
Saxon anceftors, the king was the head
and fountain of jurifdidion, as well
Ipiritual as temporal; and the fame
was exerted in well governing the
whole body of his people, both clergy
and laity, according to the laws then
in being. Supremacy might then be
defined to be, the king's executive
power circumfcribed by the laws of his
kingdom.

} ' , ..

in procefs of time, the bifhop of
Rome (by means incredible, if the
fads did not evince it) ufurped an ab-
iblute fovereignty in matters Ipiritual
within this kingdom. Then the fupre-
macy was, the pope's power to do what
he lifted without controul ; either as
reafon didated, or his intereft guided,
or his paflions fwayed.- — I fay, ufurpr,
ed \ becaufe it was ftrenuoufly oppofcd
by the whole eftate of the realm, the
king, lords, and commons aflembled
in parliament.' Vigorous laws were
enaded ; but for a long time they
were ineffedual.

A 3 At

At length the papll jurifdit^tidn w^^
afeoliftied, and the king rieftored tb hi^^
^cient ecclefiaftical dignitj^ -ittd pi-e-
erninence. But the princes of this
realm in thofe days, intoxicated (a§ it'
{hould feem) with that excefs of powei^'
Whifch thte pope had affiimed, \Voald'
rifefeds tihderftand it, tliat the fame Was
riot extinguifhed, but only transfefred'
fi^otn the popes unto themfelv^es : and
they carried fimilar notions into the ci-^
vil adminiftration. This excited dif-
orders and convulfioAs in the ftate, and
£n the^nd overturned the government.

After feveral ftruggles, the kingdom
at laft became fettled into that regular,
uniform, beneficial inftitution, w^hich
fhines forth ill its full luftre under your
Majefty's aufpicious influence, and ren-
ders your Majefty the dehght of your
fubjeds, and the envy of the whole
earth.

In every well ordered eftabHfhment,
a principal regard is had to the offices
of reHgion. What provifion hath been
made in this relped; within this king-
'^ dpm,

DEDICATIP^JV.

dom, it is the bufiners of this book to
elucidate : Wherein the author hath
endeavoured to reprefent the church
neither higher nor lower than in fact it
is ; that fo, the true ftate thereof may-
appear. Whether alterations may be
requifite in any kind, it is not his pro-
vince to inquire. It is certain, the
church hath experienced the viciflitudes
which all fublunary things are fubjed:
to. Extremes are naturally productive
of each other. Perhaps a middle ftate,
between what the church once was,
and what it now is, may be the condi-
tion moft defirable.

That your Majefty may long live to
be a blefling to this church and nation,
is the hearty prayer of

Tour Majejlys
tnojl humble
mojl faithful
and obedient fubjeSi

R I. BURN.

^ [ ^:i ]

//. ;V.l :..■■ \- '.-f-i > i -.iU Ji»

PREFACE.

TH E ecclefiaftical law of England is com-
pounded of thefe four main ingredients;
the Civil law, the Canon law, the Common
law, and the Statute law. And from thefe digefted
in their proper rank and fubordination, to draw out
one uniform law of the church, is the purport of
this book.

Where thefe laws do interfere and crofs eaci
other, the order of preference is this : The Civil
law fubmitteth. to the Canon law •, both of thefe to
the Common law ; and all the three to the Statute law.
So that from any one or more of thefe without
all of them together, or from all of thefe together
without attending to their comparative obligation ;
it is not poflible to exhibit any diftin^l profped of
the Englifh ecclefiaftical conftitution.

I. By the Civil law is meant, the law of the an-
cient Romans j which had its foundation in the
Grecian republicks, and received continual improve-
ments in the Roman fiate during the fpace of up-
wards of a thoufand years, and did not expire at
laft even with the empire it felf

For the diftind knowledge Whereof, it Is to t>e ^."J^J^ ^^ J^^^
remembred, that after the abolifhing of the regal J^^^ AylifTs
government at Rome, and the eftablifhment of the Pande'a :
republick, they fcnt three men into GrtccQy to col- Strahan's Do-
left the laws of the Athenian and other Grecian "^at : Har-
ilates; and from thefe were compiled and digefted ^j^^^™
by tei> commiflioners, well known by the name of Livii Hift.

the Rom. /. 3.

c. Zl,

ii PREFACE.

the Decemviri^ the laws of the twelve tables (fo cal-
led from their being ingrav^d on twelve tables of
brafs) : which were* the -firfl: and principal founda-
tion of the Roman law.

To the twelve tables were added the Refponfa

Prudentum^ or interpretation of the lawyers ; who

accommodated the fame to the ufe and pradlioe pf

•their courts. Atid this was denominated, in con-

tradiftindlion to the laws of the twelve tables, the

jus non fcripttimy or unwritten law ; and having .qo

other name, began then to be called the civil ^w ;

and is that which is ftyled by Jujtinian the jurifi^u-

\dentia mtdia^ becaufe it came in between the laws gf

khe twelve tabks and the Imperial conftitutions.

'Next to thefe were the Legts^ or laws emphati-
*cally fo called i becaufe they were enadled by the
whole body of the people, reckoning both the no-
bility and commonalty toother : and this was par-
ticularly, when a new cafe happened that was npt
provided for by the fornier 'laws •, the confuls on
this occalioncaufed the people to be aflfembled toge-
ther, and informing them what the cafe was, ^nd
afldng their opinions, that is, putting it to the vote,
they decided the fame according to the rules of
-equity -as the -matter appeared to them; and this
decifion being made, was ever -afterwards in the like
cafes obferved as a law. For after the abolition of
the regal government, the magiftraey was lodged
with the people-, one principal brianch whereof is
the, power or making laws.

Afterwards, the common people -mutinying, upon
^ fome differences with the -nobility, retired and fepa-
rated therpfelves from the nobility for fome time ;
and during this fecefTion they enacted laws of their
own, which ^were called Plebifdta : and upon a re-
conciliation with 'th€ nobility afterwards, it ^«^s.
agreed and confcnted to, that th^fe.alfo fhould have
the force of law, and be obligatory upon the v^hok
Roman people, the nobiUty as well as others.

B^t

P R E F^ # (f ^ ll

But oh thfe daily ihtreafe of the Roman ftate, it
^^jpearing almdft impolTible to afTemble the whoft
bodyO^ the people, at leaft without fome ruitiiilt
atxd commotion ; it was thought 'expedient, when-
ever any new cafe ^rofe, to trull the lenate v;ith this
pbwer : And when any new law was made by them^
tti^siiyhd^enatus-confuitum^ or a decree of the fe-
Mte-j and was, in like manner as the ^/^^//?r/^, irt-
cbriporated into the Roman civil law.

Furthermore, when the confuls were abroad in
the wars, to the end that the city might not be defti-
vcttc of governors during their abfence, the peopl6
created for themfelves two officers called Praters •
and thfefe had power given to them, of adding to,
or fupplying and corredting the civil law of the
twelve tables ; and were wont to propound certain
cdi6ts, which being approved by the people were in-
co^orated into the civil law, and were called Jui
fVittorium^ or the praetorian edifts.

Alfb the j^diles curules in fome cafes did eftablifh
kW^i but as their office, fo alfo their edids, were
but for the year •, and therefore at firft they were
called annual edi£ls^ until the time of the Cornelian
law, which made them perpetual, and thenceforth
ihey were called perpetual edi5fs, Thefe were di-
geftcd and put into order by Salvius Juliatius under
the emperor Adrian, and illuftrated by the com-
mentaries of the Roman lawyers. ^

Thefe were the component parts of the Romaii
civil law, ^whilft their ftate continued republican.
After the government was transferred into the hands
of the emperors, two other branches were addetl^
to wit, the Conflitiitiones principum^ or Imperial cotf-
ftitutions, and the Refpcnfa prudentum^ or anfwers of
the lawyers.

For after the adminiftration was by the kx regia
granted by the people to Auguftus ; whatfoever the
emperor ordained by his epiftle, or commmded by
his ediQ: or proclamation, or decreed' on the cogn:r-
fyatt of any matter coming before hinj in judgment,

had

P R E FACE;

had the force of a. law, under the flyle and title of
an Imperial ccnftituticit. And thefe conftitutions
were fometimes called placita principum \ becaufe
they were fuch as the prince or emperpr was pleafed
to ordain according to his difcretion.

Nexr to the Imperial conftitutions, were the Re-
fponfaprudentum under the emperors. The refponfa
prudentum during the times of the republick were
delivered without the fandlion of publick authority->
and made part (as was (aid) of the jus non fcriptum :
But under the emperors after Auguflus, no perfon
was fuffered to deliver anfwers concerning the law,
but thofe to whom the emperore gave commiflion y
and to their anfwers the judges were obliged to con-
form. And thefe do conftitute a part of xht jtcs
fcriptum, or written law.

The Imperial conftitutions aforefaid, in the fpacc
of five hundred years, from Auguftus to Juftinian,
grew to fo immenfe a bulk, that the lawyer Gregorius
thought fit to make a digeft thereof, from the time
of Adrian, or (as others fay) of Auguftus, down
to the reign of Dioclefian ; and this he did by his
own private authority : and from him the Gregorian
code bad its name and origihal.

The fecond code which we read of, was that of
Henncgenes^ who lived in the age of the Conftan-
tines ; wherein were comprized all the Imperial con-
ftitutions of Claudius, Aurelius, Probus, Carus,
Carinus, and that vaft number of conftitutions made
by Dioclefian and Maximian.

The next code was that of the emperor iLheodofnis
the younger, who caufed the fame to be compiled
after the manner of the foregoing codes ; contain-
ing the conftitutions of the emperors from the time
of Conftantine down to Theodofius's own reign:
and this colledtion from him was called the Theodofian
cede.

But in thefe three codes there was neverthelefs fo
much confufion, contradiction, and fuperfluity ; that

^ ic E F A d- e:

Jiiftinian judged a revlfal and "correftioji thereof to
be very necelfary.

And therefore from thefe three codes of the Im-
peirial cbnftitutions, and alfb from fuch new' confti-
tutions as had been made and publifbed after the
compiling of the Theodofian code, the emperor
Juftinian caufed a new code to be compiled,
which from him was denominated the Juftinian
cade* ' Which code he afterwards caufed to be re-
viftd and corre6ted in many particulars,, and re-
publifhed ; and is that code which we have now
extant at this day.

After which he caufed in like manner the re-
Jfonfa prudentum^ confiding of fome hundred
vblumes of the writings of the Roman lawyers,
to be digeftfed and abridged ; and this he <:alled
thc'DigeJi or Pdnde^^ as containing all the decifions
colle<5led from the queftions and refolutions of the
ancient Roman lawyers.

And from this digeft or pandeft, and likewife
from his own code and other commentaries of the
ancient lawyers, he caufed alfo his book of Infti-
/aT^j to be cbriipiled j which containeth the elements
of the Roman law, written in an elegant and eafy
flowing ftyle.

Laft of all he publifhed his Novels -, which No-
vels (novelise) were new conftitutions made by Juf-
tinian hirtifelf after the publication of the other
books : and thefe are fometimes called the j^u-
thenticks^ to diftinguifh them from fome other pub-
lications of conftitutions of the fucceeding em-
perors, which are not refpedted as of much au-
thority. And generally, the whole civil law, in
ule at this day, is comprized in thofe four books
of Juftinian ; the Code^ the JOigeft^ the Inftitutey
and the Novels.

The greateft part of this ifland was governed
%holly by the civil law for about three hundred
^thd fijJty years, from Claudius to Honoriu« ;
Huring which time, fome of the moft eminent

Roman

n P R E F A ii i.

Roman lawyers, as Papinian, Paulas, and Ulpian,
whofe opinions and decifions are colle<5led in t\\e
body of the civil law, did fit in the feat of judg-
ment in this nation. But after the declenfion of the
Roman empire, the Saxon, Danifli, and Norman
Guftonis took place.

Neverthelefs, in after times, the fame law again
^me to be of great repute within this kingdom j
particularly during all the time from the reign;Gif
king Steplien to the reign of king Edward die
third, both inclufive. During which period, and
at other times according as the ftudy of the civil
law prevailed, _ the judges and profefibrs of the
common law had frequent recourfe to it, in cafes
where the common kw was either totally filent or
defective. And thus we fee m the moft ancient
books of the common law, as Bradbon, Thornton,
and Fleta, that the authors thereof hav€ tranfcribed,
one after another, in many places, the very worf}/^
of Juftinian's Inftitute.

And there are fome particular matters in which
the civil law hath always been, and ftill is allowed
to be, the only law in England, whereby they ar«
to be decided ♦, and the courts of juilice which
have cognizance of thofe matters, do proceied
therein according to the rules and forms of the civil
law.
/jdr^^m'olti]. Thus in the high court of admiralty (which was

cftabliflied about the time of king Edward thj^
6rft), all caufes civil and maritime are to be ds-
cided according to the civU law, and the n^r'itWie
cu{l^>ms.
f fiiMllhu Thus in the court of honour or chivalry^ the

^ l\ lor^ high conftable and earl marlhal, who are the

judges thereof, are to proceed according to the
civil law, as being the moft proper law for de-
ciding all controverfies arifing upon contrails made
in foreign countries^ deeds of arms and of war
ovu of the realm, and things that pertain to war

within

f R E 1? A C E. .y|i

within the realm, and other matters whereof that

court hath the proper cognizance. , . - . ,, ,,x..

So alfo in. the two univerftties : the courts \Vhiph (milH/f%wA.
ire there held for determining fuits to which the
fcholars or members of the univqrfities are par-
ties, do proceed according to the rules of the civil
law. */:::

The courts oi equity alfo are in many things l&/^^n
conformable to the rules of the civil law •, of which
tfie* chief is, the high court of chancery. There
fuits' are commenced by petition or bill ; witnefTes
privately examined j and nothing is there deter-
mined by a jury of twelve men, but all the deci-
lions are. made t|y the chancellor. And almofl
all the chancellorSr, from Becket to Wolfey, that

^'^- to fay, from the age next after the conqucfl: until
the age of the reformation, compiehending almoft
the whole time of the pope's domination within this

_ri^gL||yi, were ecelefiafticks, well flcilled in the Roman

laws. ^ - 'f- I rk

And, finally, in all the ecckftajtical courts mthihJhi/riUt(^ 0^
this, kingdom, altho' the canon law is the foun-
dation of their proceedings, yet the canon law 1d€-
ing in a great meafure founded upon the civil law,
and fo interwoven with it in many branches thereof,
that there is no underflanding the canon law rightly
without being very well verfed in the civil law -,
the knowledge thereof is therefore abfolutely
neceffary for the difpatch of all caufes of ecclefi-
aftical cognizance And the civil law not only
ferves to explain the canon law ; but, by the prac-
tice of all ccclerwflical courts, it is allowed to come
in aid of and to fupply the canon law, in cafes
which are there omitted. And how neceffary and
ufeful the civil law is in this refped:, doth evi-
dently appear from the commentaries of Lind-
wood and of John de Athon upon ijie provincial
and legatine conflitutions.

II. The

PREFACE.

ViU

Dack de Jur. H.. The Canon law fprahg up out of the ruins

Civ. Ro- of the Roman empire, and from' the. power of the

manor.^ Roman pontiffs. When the' feat d tht eiiipirc

of ^thrcivfr ^^^ removed to Conftantinople, many of the Eu-

and Eccl. ropean princes artd flates fell off from the domi-

Law. nion of the emperors •, and. Italy, amongft the refh

Ayliff*s Pa- And the bifliops of Rome, having been genefally

xcrgon. j^^d in efteem as prefiding in the capital city of

the empire, began to fet up for themfelves, and

by degrees acquired a temporal dominion in Italy,

and a fpiritual dominion throughout Italy and almoft

all the reft of Europe.

And thereupon the fever^l princes and dates
did willingly receive into the body of their own
laws, the canons of councils, the writings of the
holy fathers, and the decrees and conftitutions of
popes.

Concerning the ccinons of councils^ it was eflab-
lifhed by Juftinian himfelf, that the canons of the
councils of Nice and of Conftantinople, of the
firft council of Ephefus, and of the council of
Chalcedon, fhould be obferved for laws •, and that
their decrees, as to matters of faith and doc-
trine, fliould be efteemed even as the holy fcrip-
tures.

After Juftinian, the authority of canons made
in general or provincial councils, and of the
wn-i tings of the fathers, ftill prevailed \ and the
decifioij of ecclefiaftical controverfies, which could
npt be drawn from the councils and the fathers,
was fought for from the Roman pontiffs, who
writ anfwers to thole that confulted them, in like
manner, as the Roman emperors •, and their de-
terminations were called refcripts dixxd decretal epijlks^
and obtained the force of laws.

More particularly,' of the canon law there are
tv/o principal parts, the Decrees and the Decre^
tats.

The

PREFACE. hi

The Decrees are ccclefiaftical conllitutions, made ^t^^^-*-^
by the pope and cardinals, at no man's fuit.
Thcfe were firft colleded by Ivo^ in the year.
1 1 14. And afterwards poliihed and perfedled by
Gratian^ a monk of Bononia, in the year 1149. j , .

The Decretals are canonical epiftles written by J)i.€yy~vCoub.
the popes alone, or by the pope and cardinals,
at the inftance or fuit of fome one or more, for
the ordering and determining of fome matter in
controverfy ; and have the authority of a law in
themfelvcs.

Of the decretals there are three volumes. The
firft collected by order of Gregory the ninth, about
the year 123 1. The fecond by Boniface the eighth,
about the year 1298. Ihe third made by pope
Clement the fifth, and from him called the Cle-
mentineSy and publifhed by him about the year

To' thefe may be added the Extravagants of U^'i^H^^
John the twenty-fecond, and of fome other bi-
fhops of Rome, whofe authors or colle6tors are
not known, and are as novel conftitutions unto the
reft.

So that the popes did the fame in the church,
which Juftinian did in the empire ♦, they took or-
der to have Gratian's decrees publifhed in the
manner of the Pande^-, the decretal epiftles, like
as the Code-, the Extravagants in the nature of Juf-
tinian's Novels ; and that nothing might be want-
ing, Paul the fourth ordered an Infiitute of the
canon law to be written by John Lancellor, which
was added to the body of the canon law, printed
at Rome under Gregory the thirteenth.

There were alfo as many commentators on the
canon, as on the civil law.

And thus both the civil and canon laws be-
came in fome confiderable degree received through-
out all chriftendom •, affording mutual help and or-
nament to each other.

Vol. L a And

PREFACE.

And the rule in interpreting them was this : If a
cafe happened, which was either not at all deter-
mined in the civil law, or not exprefsly, but doubt-
fully and obfcurely, .and the fame was plainly and
clearly delivered in the canon law ; the decifion
thereof was taken from the canon law : And on
the contrary, where in the canon law there was
no direction, or the fame was ambiguoufly or
obfcurely expreffed -, the decifion thereof was taken
from the civil law : And if in any cafe the civil and
canon laws did interfere, and were contrary to
each other ; the civil law was to be obferved in
the civil law courts, and the canon law in the
canon law courts ; the civil law within the em-
peror's dominions, and the canon law within the
pope's dominions. And in the courts of civil
law, where a matter of canon law cognizance came
in queftion, the fame was there determined ac-
cording to the rules of the canon law ; and in
the courts of canon law, where a matter of civil
law cognizance came in queftion, the fame was
determined according to the rules of the civil
law.

And particularlv, that the canon law in many
inftances was received here in England, appear-
eth clearly from hence •, namely, for that very
many of the decretal epiftles of the popes are
diredted hither, upon controverfies arifing in this
nation.

Befides the foreign canon law -, we have our
kgatine and provincial conftitutions.

The Legatine conftitutions were made and pub-
iifhed within this realm in the times of Otho, le-
gate of Gregory the ninth -, and of Othohon (after-
wards pope Adrian the fifth), who was legate
here to Clement the fourth: And thefe are il-
luftrated by the learned comment of "John de
Athon,

Thefe

PREFACE.

Thefe Icgatine conftitutions did extend equally
to both provinces ♦, having been made in national
fynods or councils, held here by the refpedlive le-
gates.

The provincial conftitutions were made in con-
vocation in the times of the feveral archbilliops
of Canterbury from Stephen Langton to Henry Chi-
cheley ; containing the conftitutions of thofe two
archbiihops, and of thefe feveral archbifnops in-
termediate, to wit, Richard Wetherjhed^ Edmund
of Abingdon^ Boniface^ John Peccham^ Robert Win-
thelfey^ Walter Reynold^ Simon Mepham^ John Strat-
ford^ Simon TJlepe^ Simon Langham^ Simon of Sud-
bury ^ and Thomas Arundel. Thefe were colleded
and adorned with the learned glofs of William
Lindwood, official of the court of Canterbury,
and afterwards bifhop of St David's in the reign
of king Henry the fifth. Which conftitutions,
altho' made only for the province of Canterbury,
yet were received alfo by the province of York in
convocation, in the year 1463.

There were other conftitutions of divers pre-
lates, both before and after : but thefe Vv^hich
have been mentioned, having been introduced to
publick notice by the two learned canonifts above-
named, have been principally vegarded.

Concerning this whole body of the canon law,
it is enadled by the ftatute of the 25 Hen. ^. c. 19.
as followeth : Where divers conftitutions .y ordinances^
and canons provincial or fynodal., which heretofore
have been ena5led^* be thought not only to be much
prejudicial to the king's prerogative royaU and re-
pugnant to the "laws and ft a tut es of ibis realm^ but
alfo over much onerous to his highnefs and his fub-
je5is ; the king*s humble and obedient fubje^ls^ the
clergy of this realm^ have mcft humbly befought the
king's highnefs^ that the faid conftitutions and canons
may be committed to the examination and judgmeyit
fif his highnefs y and of two and thirty of the king's

a 2 fubje^s^

Xll

PREFACE.

fuhje5Is,y whereof fixteen to be of the clergy of thk
reaim^ ^^d all the faid two and thirty perfons to be
chofen and af pointed hy the king^s majefty •, and that
fuch of the faid confiitutions and canons^ as fhall be
thought and determined by the faid two and thirty
perfons or the more part of them worthy to be abro-
gated and adnulledy fhall be abolite and made of no
'value accordingly:, and fuch other of the fame con-
fiitutions and canons^ as by the faid two and thirty
cr the more part of them fhall be approved to fland
with the laws of god^ and confonant to the laws of
this realm^ fkall fland in their full firength and
power^ the kin^s mofi royal affent being firfl had
and obtained to the fame: And forafmuch as fuch
canons-, confiitutions^ and ordinances^ as heretofore
have been made by the clergy of this realm, cannot
now at the feffion of this prefent parliament, by
reafon of the fjjortnefs of time, be viewed examined
and determined, by the king's highnefs and two and
thirty perfons to be chcfen and appointed according
to the petition of the faid clergy in form above re-
hearfed -, it is therefore enaUed, that the king fhall
have power to nominate and affign at his pleafure
the faid two and thirty perfons of his fubje5is, whereof
fixteen to be of the clergy, and fixteen to be of the
temporally cf the upper and nether houfe of the par-
liament •, and if any of the faid two and thirty per-
fons fo chofen fhall happen to die before their full
determination, then his highnefs to nominate others
from time to time, of the faid two houfes of par-
liament, to fipply the number of the faid two and
thirty, aftd that the fame two and thirty, by his
hi'^hncfs fo to be named, fhall have power and au-
thority to view, fearch, and examine the faid canons,
confiiiuticns, and ordinances provincial and fynodat
heretofore made-, and fuch cf them as the king's
hi'^hnefs, and the faid two and thirty or the more
J art cf them, fhall deem and adjudge worthy to be
coyitinued kept and obeyed, fhall be from thenceforth
ki-pi okyed a?iJ executed within this realm, fo tha^.
^ the

PREFACE.

the hinges mofi royal ajfent under his great Jeal he
firft had ' to the jame ; and the reftdue of the faid
canons^ conftitutions^ and ordinances provincial^ which
the king^s highnefs and the faid two and thirty per-
fons or the more part of them fhall not approve or
Jhall deem and judge worthy to he aholite abrogate
and made fruftrate^ fhall from thenceforth he void
and of none effeil^ and never he put in execution
within this realm : " Provided, that fuch canons,
" conftitutions, ordinances, and fynodals pro-
*' vincial, being already made, which v/ill not
" be contrariant or repugnant to the laws (la-
" tutes and cuftoms of th^s realm, nor to the
" damage or hurt of the king's prerogative royal,
" (hall now ftill be ufed and executed, as they
" were afore the making of this ad, till fuch
*' time as they be viewed, fearched, or oth^-
" wife ordered and determined by the faid two
*' and thirty perfons, or the more part of them,
" according to the tenor form and effed of this
" prefent ad." *

And by the 27 Hen. 8. c. 15. Forafmuch as
the canons cannot hy reafon of the fhortnefs of the
time he examined during this feffion of parliament \
the king fhall have power to nominate the two and
thirty perfons^ Jixteen of the clergy^ and Jixteen of
the laity ^ either hefore or after the diffolution of the
parliament •, whofe power fhall continue for three years
after the diffolution.

And by the ^c^ Hen. 8. c, 16. The faid power
was continued toi the king during his life^ and
by the fame flatute it was enabled more gene-
rally, as follows : " Until fuch time as the king
" and the faid two and thirty perfons have ac-
*' complilhed the effeds and contents before re-
" hearfed •, fuch canons, conftitutions,. ordinances,
" fynodal or provincial, or other ecclesias-

•' TIC AL LAWS or JURISDICT IONS SVMRITUAL,

*' as be yet accuftomed and ufed here in the
''' church of England, which neceHarily and con-

a 3 " venicnily

xlv PREFACE.

" veniently are requifite to put in ure and exe-
" cution for the time, not being repugnant con-
" trariant or derogatory to the laws or flatutes
'* of the realm, nor to the prerogatives of the
** regal crown of the fame, or any of them,
" fhall be occupied, exercifed, and put in ure
'' for the time, within this realm ; and that the
" minifters, and due executors of them, fhall
" not incur any damage or danger for the due
*' exercifing of the forefaid laws, fo that by no
*' colour or pretence of them or any of them,
*' the minifter put in ure any thing prejudicial
*' or contrary to the regal power or laws of the
*' realm : any thing whatfoever to the contrary of
" this prefent adl notwithftanding."

But the defign was not compleated in that king's
reign.

In the reign of king Edward the fixth, this mat-
ter was again fet on foot •, and by the 3 & 4 Ed.
6. c. II. it was enadted, that the king Jhould have
power for three years^ to appoint fixteen of the clergy^
whereof four to be hifhops^ and fix teen of the tempo-
ralty whereof four to be learned in the common law,
to compile fuch ecdefiajiical laws as aforefaid^ not
being repugnant to the common law or flatutes of this
realm.
2 "Burnet's And hereupon king Edward the fixth directed

Hill. Reform, a commifTion to thirty two perfons ; and after-
^9°- wards appointed a fubcommittee of eight per-

fons, to prepare the work and make it ready
for the reft, that it might be difpatched with the
more expedition. Which faid eight perfons were
archbifhop Cranmer, Dr Goodrich biJhop of Ely,
Dr Cox the king's almoner, Peter Martyr dodtor
in divinity, William May and Rowland Taylor
do6lors of law, John Lucas and Richard Good-
rich efquires •, by whom the work was undertaken,
digefted, and fafhioned, according to the method
of the Roman decretals, and called by the name
of Reformatio legum ecclejiafiicarum ; the ftyle

whereof

PREFACE.

whereof was correded and perfecfted by Dr Had-
doil and Sir John Cheek. But the king dying
foon after, the royal confirmation thereof was not
obtained.

In the reign of queen Mary, all the aforefaid
d£ls were repealed, by the ftatute of i & 2 P.
& M. c. 8. And fo the matter refled till the firfl:
year of queen Elizabeth, when by the ftatute of
t EL c. I. the aforefaid ad of the 25 Hen. 8.
c. 19. was revived, and extended to the queen,
her heirSj and fucceffors (the reft of the afore-
ftientiorted afts ftill remaining repealed).

In purfuance of which revival and extenfion,
it was propofed in convocation, in the fifch year
6f queen Elizabeth, to move the queen's majefty
in that behalf, and afterwards, by the endeavours
of afchbiftiop Parker, it was fet on foot in the
parliament of the 1 3 Eliz. and by a leading mem-
ber recommended to the confideration of the houfe
of commons : but after that, we hear no more
6{ It.

So that by this ftatute, until fuch reformation
as aforefaid Ihall take effedl, the canon law, fo
far as the fame was received here before the faid
ftatutes, and is not contrariant to the common
law, nor to the ftatute law, nor to the preroga-
tive royal, is recognized and enacted to be in
force by authority of parliament. Therefore the
bufinefs upon this head muft be, to inquire firft
what is the canon law upon any point •, and then
to find out^ h6^y far the fame was received here
before the faid ft^iute •, and then to compare the
fame with .the common law, and with the ftatute
law, and with the law concerning the king's pre-
rogative (which alfo is a part of the common law) :
and from thence will come out the genuine law of
the church.

Under this head concerning the canon law,

are to be reckoined alfo the conftitutions and ca-

a 4 nons

xvi PREFACE.

nons made in the convocation of the province of «
Canterbury, in the year 1603 ; and ratified by the
king, for himfelf, his heirs and fucceflbrs : Which
were alfo received and pafTed, about two years af-
ter, in the province of York.

Concerning the authority of thefe canons, and
confequently the power of the convocation to make
laws (with the royal aflent and approbation), much
Strangers Rep. dilpuce hath been made; but the matter feemeth
Joi^' now to be finally fettled in the cafe of Middle-

ton and Croft^ M. 10 Geo. 2. In which, lord
Hardwicke, then lord chief juftice of the king's
bench, delivered the refolution of the court to
this eifefl : " One point in this caufe is, Whe-
*' ther the makers of the canons of 1603, ^^^
** a power to bind the laity ? They were made
" by the biihops and clergy in convocation af-
" fembled by virtue of the king's writ, and con-
" firmed by his charter under the great feal ; but
" the defeat objeded to them is, that they were
*' never confirmed by parliament, and for this
" reafon tho' they bind the clergy of the realm,
*' yet they cannot bind the laity for want of a
" parliamentary confirmation. And fome of the
*' counfel in their argument feemed to admit it,
*' by putting the cafe upon the foot of the an-
" cient canon law •, but as the other counfel who
" argued on that fide did not give it up, it is
" become necefiary to examine and determine i
*' point of lb great moment to the conftitution
*' of England, in order to fettle the law there-
" upon. And on the befl confideration we have
" been able to give it, we are all of opinion,
" that proprio 'uigcre the canons of 1603 do not
*' bind the laity \ I fay, propria vigore^ becaufc
*' fom.e of them are only declaratory of the an-
" cient canon law. They who look into Spel-
" man's colle6bion, will find much matter in the
" ancient councils, that may ferve for illuftra-
" tion and ornament ; but as thofe were often

" mixed

PREFACE. xvU

" mixed affemblies, compofed partly of clergy,
*' and partly of laymen ; fometimcs the king with
" his nobility, at other times fome of the com-
" mons likewife, are mentioned as prefent. But
*' whether they had fufFrages in thefe councils or
" not, and in what manner they were fent thi-
*' ther, whether by eleftion, or by what other
*' kind of conftitution, is very uncertain and ob-
" fture. The like may be faid of feveral coun-
" cils held in the earlieft times following the
" coming in of the Norman line ; and after-
" wards there is a frequent mixture of the le-
" gatine authority, which arofe merely by papal
*' ufurpation.

" Upon this important queftion therefore, it is
•' proper for judges to proceed upon furer foun-
" dations •, which are, the general nature and
" fundamental principles of our conllitution, adbs
*' of parliament, and refolutions and judicial opi-
" nions in our books ; and from thefe to draw our
*' conclufions.

" No new law can be made to bind the whole
" people of this land, but by the king, with
*' the advice and confent of both houfes of par-
" liament, and by their united authority. Ne^
" ther the king alone, nor the king with the con-
•' currence of any particular number or order of
" men, hath this high power. The binding
*' force of thefe ads of parliament arifes from
" that prerogative, which is in the king our
" fovereign liege, lord ; from that perfonal right
*' which is inherent in the peers and lords
** of parliament, to bind themfelves and their
" heirs and fucceflbrs in their honours and
*' dignities •, and from the delegated power
" veiled in the commons as reprefentatives of
** the people •, by reafon of this reprefentation,
" every man is faid to be party to, and the con-
" fent of every fubjed is included in, an aft of
" parliament.

" But

xviu

PREFACE.

*' But in canons made in convocation, and
« confirmed by the crown only, all thefe requi-
" fites are wanting, except the royal aflent •, there
" is no intervention of the peers of the realm,
*' nor any reprefentation of the commons.

" It was faid indeed by fome of the civilians in
" this canfe, that, even in parliament, there is
" not an adual reprefentation of all orders and
" degrees of men, there being more fubjeds
** who do not vote in eledlions, than who do.
" But that doth not make it ceafe to be a re-
" prefentation. It was impoflible that all could
** join in the ele6lion ; and therefore our confti-
" tution hath fixed it in thofe, who are polVelTed
*' of the moft valuable and fixed fort of pro-
** perty. A notion alfo was advanced in this ar-
*^ gument, that the parfon reprefents the parifh :
" But how can that be, when we all know, that
" the parfon is not eleded by them ? The writ
*' is, to fummon to convocation the whole eler-
" gy •, and the premonition is, that archdeacons
*' and deans (hall come in perfon, and the reft
*' by their reprefentatives. Thefe fhew plainly,
*' that the clergy only 'are called, and that the
** prodors are chofen to reprefent the clergy
^' only. Hence arifes the diftindion between
" canons made in ancient councils confirmed by
" the empire after it became chriftian, and thofe
" made here. The emperor, according to Juf-
" tinian and the Digeft, had a legiflative power ^
*' and when they received his confirmation, they
*' had their full authority. But that is not the
" cafe here : the crown hath not the full legif-
"lative power-, and it is therefore rightly laid
*' in 2 Sdk. 673, that the king's confent to a
" canon in re ecclefiaftka makes it a law to bind
" the clerciry, but not the laity : And no one
" can fay, that the confent of the people is iri-
*' eluded in the royal confirmation. Another ar-
" gument is, that by our conftitution the power

" of

F R E F A C E. XIX

" of impofing taxes is co-extcnfive with the power
" of making new laws. The parliament lays
** taxes upon all the people -, but the clergy
" never pretended to tax any but themfelves.
" And it feems almofl an abfurdity to fay, that
" when the clergy in convocation cannot charge
*' the laity with one farthing by way of tax or
" impofition, cannot even create a new fee to be
" paid by them, yet that the clergy (hould have
" it in their power to enadl new laws, for difo-
*' beying which, the laity Ihall incur the penalty
" of excommunication, which is to be carried
" into execution by the lofs of their liberty, and
" a difability to fue for and difpofe of their per-
" fonal eftates., This would certainly be to afedt
" the laity in their property in a very high de-
" gree •, and yet it is admitted, that the clergy by
" fynodical ads cannot charge the property of the
" laity.

" In all the afts of parliament fince the re-
" formation, for confirming forms of prayer and
" other ecclefiaftical conftitutions, the preambles
" fhew, that the clergy in convocation were only
*' confidered as the proper alTembly to prepare
*' and propound them, but not to ena6t or give
" them their force. It was obje6ted indeed in
" this argument, that the confirmation by parlia-
** ment did not give being to them as laws, to
*' bind the laity -, but was defigned merely to in-
" force them by the addition of temporal penal-
" ties. But thacis not the only reafon, tho' it
" is one. The true ufe of thefe confirmations
" in parliament was, the extenfion of fuch con-
" ftitutions over the laity, who would orherwife
" not be bound. It hath alfo been faid, that at
" leaft they fhould bind the laity in re eccleftaf-
" tica, — But this proves a great deal too much;
*' there are many things of an ecclefiaftical na-
" ture, which no canon can touch, as the cafe
" of tithes, the degrees of confanguinity, and

" the

XX PREFACE.

'' fhc operation of adminiftrations -, and if this
*' argument would hold, they might overturn
*' the common law as to the heirfhip of lands,
" and the divifion of perfonal eftates ; which
" would never be endured, for thefe are matters
*' which have always been regulated by the Ic-
" giflature." And after confidering the cafes
which had been alledged on both fides, he con-
cludes upon the whole, and lays it down as the
deliberate refolution of the whole court, that
the canons of 1603 do not propria vigore bin3 the
laity.

In the aforefaid cafe, the point was not in qucf-
tion, whether or how far the faid canons are ob-
ligatory upon the clergy. It feemeth generally
to be underftood, that they are'binding in that re-
fpe6t. And it is to be obferved, that there are
very many particulars in thofe canons, which are
taken from the ancient canon law received here
before the faid ftatute of the 25 Hen. 8. And
therefore upon this head, it is to be inquired,
how much of thofe canons is agreeable to the an-
cient canon law, and how much is added of new
by the convocation of 1 603 : for in the former
cafe, the fame will be obligatory both upon the
clergy and laity •, and in the latter cafe, upon the
clergy only.

Yet there feemeth to be one exception to this
general rule, and that is, with refpe6t to thofe of-
ficers of the ecclefiaftical court which are laymen,
as regifters, pro6tors, and apparitors (and we may^,
add alfo churchwardens, who are officers attendant.
on the courts of vifitation, there to give infor-
mation of offences) •, for as to thefe, the tempo-
ral courts in the adjudications which have been
made, do proceed upon a fuppofition that thefe
canons are in force. But according to the fore-
going dodtrine, the diflindion muft be this: That
the regulation of the officers according to the
meafures prefcribed by thefe canons, is not fo much

P R^^ E F A C E. xxi

of neccflity, as of convenience ; that the canons
in thefc reipedls are a good rule to go by, but
not of peremptory obligation •, and therefore that
the authority which the court exercifeth over its
officers according to thefe canons, is not from the
canons themfelves, but from that power which
every court hath over its own officers, by the
common law, by the ancient canon law, and by
every law ; for without this, there could be no
courts at all.

III. The Common law is fo called, becaufe HaVs Hift.
it is the common municipal law or rule of jufticeCom. Law.
throughout the kingdom. For altho' there are 5^^* lo Co.
divers particular laws, fome by cuftom applied '^^ '
to particular places, and fome to particular caufes ;
yet that law, which is common to the generality.
of all perfons, things, and caufes, and hath a
fiiperintendency over thofe particular laws that
are admitted in relation to particular places or mat-
ters, is the common law of England.

This is ufually called lex non fcrtpta ; not as if
all thofe laws of which it confifteth were only oral,
or communicated from the former ages to the
latter merely by word ; for all thofe laws have
their feveral monuments in writing, whereby they
are transferred from one age to another, and with-
out which they would foon lofe all kind of cer-
tainty ; for as the civil and canon laws have their
canons, decrees, and decretal determinations in
writing, fo thofe laws of England which are not
comprized under ,«the title of a6ts of parliament,
are for the mod part extant in records of pleas
proceedings and judgments, in books of reports
and judicial decifions, in tradates of learned mens
arguments and opinions, preferved from ancient
times, and ftill extant in v/riting : But they are
llyled unwritten laws, becaufe their authoritative
aiid original inftitutions are not fet down in wri-
^ tir.cr

xxii PREFACE.

ting in that manner, or with that verbal explicifr-
nefs, that a6ls of parliament are -, but they are
grown into ufe, and have acquired their binding
power and the force of laws, by a long and im-
memorial ufage, and by the ftrength of cuftom
and reception in this kingdom ; the matter in-
deed, and the fubftance of thofe laws, are in
writing, but the formal and obliging force or
power of them grows by long ufe and cuftom.
For cuftom, generally received in this kingdom,
obtains the force of law ; and is that which gives
power fometimes to the canon law, and fometimes
to the civil law, in the refpedlive courts wherein
they are in ufe; and again, controlls both, when
they crofs other cuftoms that are generally re-
ceived in the kingdom.

As to the rife and original of this common law,
it is to be underftood, that after the decay of the
Roman empire, this nation was invaded by feve-
ral different people ; each of whom, more or
lefs, introduced their own laws in the places
where they fettled. When the kingdom became
united under one monarch, the feveral laws were
colledled and formed into one general law of the
realm.

Alfred^ who was the firft fole monarch after
the Saxon heptarchy^ about the year 896, col-
ledled all the laws into one book, and commanded
them to be obferved throughout the whole king-
dom, which before only affected certain parts
thereof.

After him, Edward the confejfor^ who began
his reign in the year 1041, out of the former laws
compofed a fyftem which he called the common
law \ upon which account he is ftyled by our
hiftorians, the reftorer of the Englifti laws.

Afterwards, William the conqueror^ with the ad-
vice of his council, on confidcration of all the
laws and cuftoms, abrogated fome, and eftab-
2 lifhed

PREFACE. xxiii

liftied others -, to which he added fome of his
own country laws, which he judged moff to con-
duce to the prefervation of the peace.

William Rufus^ his fon, broke thro' the ancient
laws and cuftoms which his father had ^ftablifhed.
But the conqueror's next fon, king Henry the
firft^ furnamed Beauderk^ from his eminent learn-
ing, abolifhed all the evil cuftoms which his bro-
ther had introduced, and reftored the laws of
Edward the confeftbr, with thofe amendments
which his father had made by the advice of his
barons.

The next fucceeding kings, in like manner,
confirmed all the aforefaid laws and cuftoms,
and enadled new laws as occafton required, by
the advice and confent of the great council of
the realm ; the original records of which being
loft, they remain only now as parts of the com-
mon law.

For we have no original or authentic tranfcripts
of a6ls of parliament, ancienter than the reign of
king Henry the third. But ifndoubtedly fuch
there were. And many of thofe things that we
now take for common law, were originally ads of
parliament, tho' now not to be found of record.
And if in the next age, the ftatutes made in the
time of Henry the third and Edward the firft
fhouid be loft, yet even thofe may pofTibly in fu-
ture times pafs for parts of the common law;
and, indeed, by long ufage, and the many re-
folutions grounded upon them, and by their great
antiquity, they feeni even already to be incorpo-
rated with the common law : and that this is fo,
may appear, tho' riot by records, for we have
none fo ancient, yet by authentic and unqueftion-
able hiftory, wherein a man may without much
difficulty find, that many of thofe matters which
are now ufed and taken for common law, were
enaded in parliament or great councils before

the

xxW PREFACE.

the reign of king Henry the third. But yet, thofc
conftitutions and laws being made before time of ^
memory, do now obtain, and are taken as part
of the common law and immemorial cuftoms of
the kingdom -, and fo they ought now- to be efteem-
cd, tho' in their original they were adts of parlia-
ment.

And this common law hath been committed
to writing, and delivered down to the prefent
times, in the works of divers learned men.

Particularly, the famous and learned Glanvily
lord chief juftice in the reign of king Henry the
fecond, wrote a book of the common law, which
is faid to be the moft ancient compofition on that
fubje6t now extant.

Bra5ion^ who was a judge in the reign of king
Henry the third, wrote a very learned treatife of
the common law, towards the latter end of that
king's reign -, which is held in great eftimation to
this day.

Britton^ who, as fome fay, was bifhop of Here-
ford, or, as others fay, was a judge, (and per-
haps he might be both,) in the times of king
Henry the third, and king Edward the firft, com-
pofed a learned work on the common laws of Eng-
land, which was publifhed in the fifth year of king
Edward the firft.

The book called Fleta^ was written by fome
learned lawyer, who being committed to the pri-
fon of the Fleet, had leifure to compile it there,
and therefore ftyled it by the name of the Fleet.
The author thereof is unknown ; but it appeareth
in his book that he lived in the reigns of Edward
the fecond and Edward the third.

And from thefe, and other books of the com-
mon law, and from original records and other au-
thentic monuments, that great lawyer Sir Edward
Cokey afterwards lord chief juftice of the king's
bench, in the reign of king James the firft, com-

pofed

P R E F A C E.

pofed his four books of Inftitutes, which are de-
fervedly efteemed as mod valuable repofitories of
the common law.

Under this head concerning the common law,
are to be confidered alfo Judicial decifions^ or
determinations in the courts of juftice. Which,
altho' by virtue of the laws of this realm they
bind as a law between the parties thereto, as to
the particular cafe in queflion, until reverfed by
writ of error ; yet do not make a law properly
fo called (for that only the king and .parliament
can do): yet they have a great weight and au-
thority in expounding, declaring, and publifli-
ing what the law of this kingdom is ; efpecially
when fuch decifions hold a confonancy and con-
gruity with refolutions and decifions of former
times.

Of thcfe decifions, in the temporal courts,
there are abundant inftances in the books of re-
ports : but of cafes adjudged in the ecclefiaf-
tical courts, no colle6lion hath been publidied ;
which hath been one caufe why the law and prac-
tice of thofe courts is not fo generally under-
flood.

Hereunto may be added alfo the Regifter of
writs: Which writs, altho' they are not ftridly
law, yet being compiled with the utrnpft caution
and judgment, by the moft eminent and expe-
rienced fages of the law, are defervedly elleemcd ^s
of very great authority.

IV. The Statute law is made by the king,
the lords fpiritual and temporal, and commons
in parliament aifembled -, that is, by the united
fuffrages of the whole kingdom, either in per-
fon or by reprefentative. And this is that which
gives unto adls of parliament their ftrength and
fuperiority above all other laws in this Jcingdom
whatfoevcr ; by virtue whereof, they control!.

Vol. J. b alter,

xx\r

3ixvi PREFACE.

alter, mitigate, repeal, revive, explain, . dmend,'
both the common, canon, and civil laws, and
adually have done fo in abundance of inftances.
Thefe ftatutes or a6ts of parliament bear date (as
was obferved before) from the reign of king
Henry the third ; and new ftatutes have been en-
» a6led in every king and queen's reign fmce that

time, except only during the (hort reign of king
Edward the fifth. By which means, in the fpacc
of upwards of 500 years, they have neceflarily
become very numerous, and not a little confufed 5
fo that there is need of another Juftinian to revifc
and digeft them.

Under this head, we are alfo to reckon the
thirty nine articles of religion, agreed upon in ,
convocation, in the year 1562; and, in like man-
ner, the Riihrick of the book of common prayer :
Which being both of them eftablifhed by aft
of parliament, are to be efteemed as part of the
ftatute law.

THESE are the conftituent parts of the Eng*
lifli ecclefiaftical law, as pradlifed and exercifed in
the ecclefiaftical courts, and in the courts of com-
mon law. But belides thefe, there are other courts
which in many inftances have concurrent jurifdic-
tion ; and in which indeed moft ecclefiaftical mat-
ters of confiderable confequence are now ufually
determined, namely, the courts of equity^ in the
exchequer, and in the chancery. In thefe arc
cognizable matters of tithes and modus's for the
fame, caufes matrimonial and teftamentary and
other things relative thereunto, as appointing of
guardians, ordering executors and adminiftrators,
taking care of the interefts of infants, payment
of debts and legacies, and many other fuch like.
And in thefe courts the determinations arc made
according to the rules of equity and good qon-
• fciencej and more efpecially they take cognizance '

P RE FA C E. xxvii

in cafes where no provifion, or not fufficient pro-
yifion, is made by the ordinary- courfe of law ;
and fometimes they will mitigate the rigour of
tlie common law, where by circumftances there
happens to be a peculiar hardfhip or inconvenience
in the particular cafe in queftion ; but, ordinarily,
they will not determine againft the known and
eftablifhed maxims of the common law, much
lefs relieve againfV an a6t of parliament, for that
cannot be altered but by the fame authority which
eftablifhed it.

As to what is delivered concerning the thirty
nine articles above^ it is to be obferved, that
"what is alledged from thence in the following book
•7s iriferted, not as matter of dodrine, but as mat-
ter of law •, points of do6lrine being foreign to the
author's whole defign.

In like -manner in delivering matters .of law,
the author takcth not upon him to cenfure or ap-

Erove this or that regulation or eftablirnment ; it
eing his province to inquire, not what the law
ought to be, but what it is : and he hopeth that
the few obfervations which will occur, will ap-
pear not to be ftrained or impertinent dedu6lions,
but naturally fefulting from the undeniable evidence
^pF fadts.

It fometimes happeneth, that the fame law fal-
leth in under different titles. In which cafe, that
each title may bt as it were a compad treatife
Vithin it felf, it is judged proper to infert that
law under thofe feveral titles ^ repetition in fuch
cafe being more eligible, than referring the reader
^o other parts of the book •, as it is better to fhew
'a man the way, than to fend him elfe where for in-
formation,

b 2 In

xxviii PREFACE.

In citing authorities, the author hath deemed
it indiipenfabie, to attribute to every man what is
his own ; having often obferved, not without fome
degree of Indignation, authors of great name
borrowing from others without acknowledging the
debt. Therefore he alledgeth his vouchers upon
all occafions, of what credit foever they may be j
endeavouring at the fame time, not to lay more
burden upon any one than he can very well bear •,
but proportioning his authorities according to the
difficulty and importance of the points to be dif-
cufled ; not vouching authors of lefs eminent dif-
tin6tion, for pofitions of very great moment ; nor
thinking it needful to multiply authorities in points
not controverted, where the firft author hath de-
livered the law, and others only have copied after
him.

A work compofed of fuch a variety of ma-
terials, cannot in any refped be fatisfadory, with-
out fearching the foundations -, confequently, it
hath been endeavoured to reprefent not only the
law, but the hiftory of that law, in its feveral
gradations, from its firft beginning under the
ChrilVian emperors till its arrival in England i
from thence, during the Danifh and Saxon pe-
riods, to the Norman conquefl •, from the Norman
conqueft, to the reformation ; and from the refor-
mation to the prefent time.

[In like manner it might be curious, and withal
not difficult to any perfon well fl<:illed in ecclefiaf-
tical hiftory, to trace out the feveral peculiar doc^
trtnes (not to be found in the holy fcriptures)
which are or have been profeiTpd from time to
time by different feds and denominations of Chrif-

PREFACE. ixix

It is to be lamented, that amongft the profef-
Ibrs of the civil and canon law on the one hand,
and of the common law on the other, fo little of
candour is to be found •, infomuch that it may be
laid down as one good general rule of interpreta-
tion, that what a common lawyer voucheth for
the church, and a canonift or civilian voucheth
againft it, is for that very reafon of fo much the
greater authority.

Contrary judgments, according to the different
meafures of right in the feveral courts, are ano-
ther caufe of regret. And not feldom the deter-
minations in the fame court have been various.
For tho' truth is ftill the fame, yet the appre-
henfions of men concerning it are different. And
this muft unavoidably, fo far, be the parent of un-
certainty.

One thing further is to be noted, that in all
the books of this kind there is a diflafteful in-
termixture of Latin and Englifli throughout ;
occafioned by the Roman civil and canon laws
(and in conformity thereunto, our own provincial
and legatine conftitutions) being written in the
Latin tongue: Thefe the author hath taken the
liberty to exhibit in an EnglilK literal tranfla-
tion ; judging it no more reafonable to prefeifve
in thefe the Latin didion, than in reciting the an-
cient ftatutes and authorities of the common law to
preferve the original French.

S O much for the printed authorities^ of which
the author hath availed himfelf.

There are other particulars, for which he hath

been obliged to feveral of his learned friends.

2 Amongft

ptt PREFACE.

Amongft whom, he begs leave to render his p^r-
ticular acknowledgments to the reverend Dr
Waugh, dean of Worcefter ; from whofe inftruc-
tions he hath much profited, both in this and in his
former work concerning the office of a juftice of
the peace.

Upon both which accounts, he is bound tb
cxprefs his obligations, to Thomas Simpfon, ef-
quire, clerk of the peace for the county of Cum-
berland.

John Upton, eiquire, of Lincoln's Inn, knight
of the {hire for the county of Weftmorland, it is
hoped, will excufe the mention of his name upon
this occafion, for feveral valuable affiftances.

Another gentleman of the fame honourable fo-
ciety, William Selwyn, efquire, hath been fo kind
as to communicate fome very accurate and judi-
cious reports of cafes adjudged in the courts of
law.

The author's thanks are likewife due to (Swin-
burne's worthy fucceflbr) Dr Topham, judge of
the prerogative court at York -, and to William
Milbourne, eftjuire, of Armathwaite in the county
of Cumberland, counfellor at law.

And, mofl: efpecially, to JofepH Nicolfon, ef-
quire, of Hawkfdale ; unto whom it is owing,
that this book is much more perfed in many re-
fpedls than otherwife it would have been. From
that infeparable quality of true knowledge, a
readinefs to communicate, which he enjoys in full
perfeftion, it is hoped, that this gentleman will
fhortly oblige the world with the hiftory of the
two Northern counties of Weftmorland and Cum-
berland, natural, topographical, genealogical,

civil.

PREFACE. xxxi

^lyil, religious, military-, for which he hath col-
lefted moft: ample materials -, and from which,
cfpecially the laft mentioned branch thereof, re-
fpefting more particularly the border fervice, and
from the cuftoms of the feveral manors incident
thereunto, will accrue a moil valuable acquifition
to the knowledge of that grand fyftem of military-
policy, the ancient feudal law.

There are alfo other particulars, which it will
cafily appear are not the author's own : for which
he is not at liberty to cxprcfs his publick acknow-
ledgments.

im>tit

( I )

:9bbot.

ABBOT is a word of oriental extra£lion, from tie
Syriac Mba^ fatherj as that, from the Hebrew Aby
of the fame fignification : and, if we may afcend
ilill higher, that word it felf (as many others which oc-
cur in that language) proceedeth from the voice of na-
ture ; being one of the moft obvious founds, to exprefs
one of the iirft and moft obvious ideas.

The general law concerning abbies and other religious
houfesj i? inferted under the title ^OUaft^rp*

ABEYANCE, from the french hayer, to expect, is
that which is in expe<Stalion, remembrance, and
intendment of law. By a principle of law, in every land
there is a fee fimple in fome body, or elfe it is in abeyance ;
that is, though for the prefent it be in no man, yet it is in
expectancy belonging to him that is next to enjoy the land^
I /«/?. 342.

Thus if a man Be patron of a church, and prefenteth a
clerk to the fame; the fee of the lands and tenements
pertaining to the re6lory is in the parfon : but if the par-
fon die, and the church becometh void, then is the fee in
abeyance^ until there boa new parfon prefented, admitted,
and indu<Sted. For the frank tenement of the glebe of a
parfonage, during the time the parfonage is void, is in no
man j but in abeyance or expectation, belonging to him
who is next to enjoy it. Therms of the law.

Abjuration. See CfjUCCft*
AccefTion day. See i^OllOapS*

Vol. I. B ZoAi^

7ito\vt%

AC O L Y T H, acofythus, axoXovSo?, in our old englifh
called a colef^ was an inferior church fervant, who
next under the fubdeatcon waited on the priefts and dea-
cons, and performed the meaner offices of lighting the
candles, carrying the bread and wine, and paying other
fervile attendance. Kcfinefs J^aj-Qcb. Jntiq. Glofll v.
Acolyth.

:^tjminiftration.

TH E adminiflration of inteftates effe£i:s, being con-
ne£led in many particulars with the law concerning
laft wills and teftaments ; the whole is treated of together
under the title OTill0.

Admiffion. See TSCllCBCe*
Adultery. See JLeluBnefiJ*

I. T INDWOOD fays, that by the civillaw none
Whomay be: £^ ^^^j^ ^^ advocate, but he, who had fludied for

^ve years. Lind. (Edit. Oxon.) 76.

But this is mitigated, by a conftitution of archbifhop
.Peckha?n, to three years: By which it is injoined, that
hone (hall be permitted to excrcife the office of advocate,
unlefs he fliall have been for three years at kaft a. diligent
hearer of the canon and civil law. And he fhall give
proof of this by his own oath, if the fame fhall not appear
by proper teftimony, or by the notoriety of the fa£t.
Lind. 75.

Generally, by the ufage and pra6tice of England and
other countries at this day, a pcrfon may be admitted ta
this office, who has taken a do(5tor of laws d<^grcc» JyL
Parerg. (2d Edit.) 54.

By the flatute of the 3 J^. c, 5. No recufant conrolB fhall
pradiife in the civil law as advocate, f. 8.

2. By the feveral ftamp a(5ts ; evfery admiffion of any Admiffion,
perfon to the office of advocate, fhall be upon a treble 40 s.
ftamp.

3. Otho. He who defireth to be promoted to the office ^^^^»
of advocate generally, fhall make oath before the diocefan
where he was born or doth inhabit, that in the caufes
which he fhall undertake he will perform the part of a
faithful patron, not to pervert or delay juflice to the ad-
verfe party, but by defending the caufeof his client bylaw

and reafon. Alfo in matrimonial caufes and elections he
ihall not be admitted to plead, unlefs he will take the like
oath particularly therein 5 nor in other caufes before an
ecclefiaflical judge fhall he be admitted for a longer fpace
than three terms without fuch oath, unlefs it be in behalf
of his ov/n church, or for his lord, or known friend, or
for a poor man, a flranger, or perfon in mifery. And all
who fhall a61: contrary hereunto, fhall be ipfo fafto fuf-
pended from their office until they fhall make competent
fatisfa6lion, and fhall be otherwife duly punifhed upon
convi<£lion of their offence. Athon. (Edit. Oxon.) 70.

And by a conftitution of Othohon : No perfon fhall be
admitted to be advocate in any caufe, unlefs he fhall firil
produce a certificate of the faid oath being made from the
diocefan before whom he was fworn, or fhall take fuch
o^th again. Athon. 123.

4. Can. 130. For the furtherance and increafe of learn- ^'^^^<^^'"8«'
ing, and the advancement of civil and canon law ; it is
ordained, that no pro6tor exercifing in any of the arch-
bifhops courts, fhall entertain any caufe whatfoever, and
keep and retain the fame for two court days, without the
counfel and advice of an advocate, under pain of a year's
fufpenfion from his pra6lice : neither fhall "the judge have
power to releafe or mitigate the faid penalty, without ex-
prefs rnandate and authority from the archbifhop.

And by Can, 131. No judge In any of the faid courts
fhall admit any libel or any other matter, without the ad-
vice of an advocate admitted to pradliife in the fame court,
or without his fubfcripdon ; neither fhall any pro6lor
conclude any caufe depending, without the knowledge of
the advocate retained and feeM in the caufe : which if aiiy
proclor fhall do or procure to be done, or fhall by any
colour whatfoever defraud the advocate of his duty or fee,
or fhall be negligent in repairing to the advocate and re-

B 2 quiring

In cafe of mhi-

.hitiom.

S*%orning -wit-

qtiiring his advice whatcourfe is to be taken in the caufe j
he fhall be fufpended from all pradice for the fpace of &K
months, without hope of being thereunto reftored before
•the faid term be fully complezt.

5. Can. 96. No inhibition fhall be granted out of the
archbiftiop's court, at the inftance of any party, unkfs it
be fubfcribed by an advocate pra£lifing in the faid court j
which the faid advocate fhall do freely, not taking any
fee for the fame, except the party profecuting the fuit da
voluntarily beftow fome gratuity upon him for his counfel
and advice in the faid cauJe : The like courfe fhall be ufed
in granting forth any inhibition at the inftance of any
party by the bifhop or his chancellor againfl the archdea-
con, or any other perfon exercifing ecclefiaflical jurifdic-
tion. And if in the court or confiftory of any bifhop
there be no advocate at all ; then fhall the fubfcription of
a procSlor pradtifing in the fame court, be held fufficient,

6. Oiho, All advocates fhall take care that they do not
fuborn witneflfes by themfelves or by any other, or inftru6i:
the parties either to fuggeft what is falfe or fupprefs the
truth. And all who fhall a£l: contrary hereunto, fhall be
ipfo fa(St:o fufpended from their office until they fhall make
competent fatisfa£t:ion, and fhall be otherwife duly punifh-
<d upon convicStion of their offence. Athon. 70.

auDoMon.

FodUd^ation of
the right of ad-
TVwfoa.

I. ' f ''HE right of advowfon, or of prefenting a clerk to
Jl the bifhop, as often as a church becomes vacant,
was firfl gained by fuch as were founders, benefactors, or
maintainers of the church ; either by rcafon of the foun-
dation, as where the anccflor was founder of the church ;
or by donation, where he endowed the church j or by
reafon of the ground, as where he gave the foil whereupon
the church was built, i hifl. 119.

For although the nomination of fit perfons to officiate
throughout the diocefc was originally in the bifhop, and
in no other, yet when lords of manors were willing to
build churches, and to endow them with manfeand glebe,
for the accommodation of fixed and refiding miniflers, the
l)ifhops on their part (for the encouragement of fuch
pious undertakings) were content to let thofe lords have
the nomijiation of perfons to the churches fo built and en-
dowed

^wed by them ; with refervation ta themfelvea of an
Intire right to judge of the fitnefs of the perfons fo nomi-
na^d. And what was the pra£tice, became in procefs of
time the law of the church. Gibf. (2d Edit.) 756.

They were called advocati and patroniy becaufe they
were bound to prote<3; and defend the rights of the church,
and their clerks, from oppreflion and violence. Gibf,

2. The right of nominating, which at firft was an- Advowfon ap-
nexed to the perfon building or endowing the church, be- P«"^*"^»
came by degrees appendant to the manor in which it was
built. For the endowment was fuppofed to be parcel of
the manor, and the church was built by fuch lord for thp^
ufe of the inhabitants of his manor j and the tithes of the
manor were alfo annexed to the church. Upon all which
accounts, it was moft natural for the right of advowfon
(which was now become hereditary) to p^fs with the ma-
nor, or with fuch part of it, as might at any time be grant-
ed or aliened together with the advowfon ; to which
(whether to the whole, or part) it is therefore faid to be
appendant ; that is, to the demefnes, which are of perpe-
tual fubfiftence, but not to rents or fervices, which (tho'
parcel of the manor) may be extinguifhed, and cannot
therefore fupport fuch appendancy. Gibf, 757, JVatf.

If he that is feifed of a manor, to which an advowfon
is appendant, grants one or two acres of the manor, to-
gether with the advowfon ; the advowfon is appendant tp
fuch acre : efpecially after the grantee hath prefented.
Waif c. 7.

Eut thi^ feoiFment of the acre with the advowfon ought
to be by deed, to make the advowfon appendant ; and
the acre of knd and the advowfon ought to be granted by
the fame claufe in the deed : for if one having a manor
with an advowfon appendant, grant an acre parcel of the
iaid manor, and by ahothcr claufe in the fame deed grants
the advowfon ; the advowfon in fuch cafe ihall not pafs
as appendant to the acre : but if the grant had been of the
intire manor, the advowfon would pa£s as appendant. So
if an hufband feifed in right of his wife of a manor tp
which an advowfon is appendant, doth alien the manor
by acres to divers perfons, faving one acre j the advowfon
ihall be appendant to that acre. Or if a leflee for life of
a manor» to which an advowfon belongs, alien one acre,
with the advowfon appendant, the advowfon is thereby
:»{)pendant to that acre. IVatf c. 7,

B 3 An

6 :3t)t5oXbfott.

An advowfon of a vicarage may be appendant to a par- .
foliage, as being derived and endowed out of the fame.
Upon which acco^nt it is, that if a parfon be patron of a
vicarage, and doth leafe the parfonage to another, the
patronage of the vicarage fhall pafs as incident thereunto.
And upon the fame account, the reftor of common right
5s ever efleemed patron of the vicarage, tho' by fome or-
dinance or compofition or by the king's grant it may be
appointed and fettled otherwife. And fo may even an
advowfon of a vicarage be appendant unto other things,
as to a manor, by refervation upon the appropriation, be-
caufe the advowfon of the rectory was appendant there-
unto ; as alfo by the grant of the parfon, before the time
of memory. And in this cafe, ahho' the atfl of appro-
priation be not extant, yet the ufe of prefenting time out
of mind is a fufficient evidence of the appendancy to the
manor, contrary to the common right. Waif. c. 7.
/flVowron in.. 3. The rio;ht of advowfon, tho' appendant to a manor,

Kf<^^5» caftle, or the like, may be fevered from it ; and being; fe-

vered, is become an advowfpn in grofs. And this may
beeffe&d divers ways : As, i. If ai manor or other thing
to which it is appendant is granted, and the advowfon
excepted. 1. If the advowfon is granted alone, without
the thing to which it was appendant. 3. If an advow-
fon appendant is prefented to by the patron, as an advow-
fon in grofs. Gihf. 7^7.

A difappendency may be alfo temporary ; that is, the
appendancy, tho' turned into grofs, may return : As, i.
If the advowfon is excepted in a leafe of a manor for life 5
during the leafe, it is in grofs ; but when the leafe ex^
pires, it is appendant again : 2. If the advowfqn is granted
for life, and another enfeoffed of the manor with the
appurtenances ; in fuch cafe the reverfjon of the advow-
fon pafTcth, and at the expiration of the grant, it fhall be
appendant : 3. If the advowfon is allotted to one co-
parcener, and the manor to another, and fhe who had the
advowfon dies without iffue, it is appendant again : And
fo, if the demefnes are allotted to the one, and the fer-
vices to the other, the advowfon becomes in grofs ; but if
the one die without iffue, and the manor defccnd to her
who h:id the fervices, the advowfon becomes appendant,
as it was before: 4. If tenant in t;iil aliens fome part of the
manor with the advowfon, and the alienee grants the ad-
vowfon to a flranger ; or if a common perfon hath an
advovv'fon appendant, and a ftranger prefents his clerk,
who is in by fix months 5 in both thcfe cafes, the advow-

fQI>

ian is made difappendant ; but yet, if in the firft cafe the
land aliened is recovered by tenant in tail, and in the
fecond cafe the rightful patron recovers, the appendancjf
returns. 5. Where an advowfon is appendant to a ma-
nor, and the owner mortgages the manor in fee, ex-
cepting the advowfon, by this means it is become in grofs ;'
but if the money be paid punctually at the day, then it is
become appendant again, and if it is paid after the day,
it is appendant in reputation, and may pafs by the name
of an advowfon appendant, in a grant or other convey-
ance, tho' in reality the appendancy is deftroyed ; for if it
is fevered one inftant from the manor by the adl of the ,
party, it is then in grofs, and not appendant: 6- So where
the owner of a manor, to which an advowfon was ap-
pendant, accepts a fine of the advowfon, with a grant and
render back of every fecond turn ; now, for fuch turn
the advowfon is in grofs, but for other turns the appen-
dancy ftill continues : But if a man levy a fine of the ad-
vowfon, and accepts a grant and render, the appendancy
i& quite gone, becaufe there was an inftant of time, in
which it became fevered : 7, So where there are two co-
parceners of a manor t-o which an advowfqn is appendant,
and they make partition of the manor, without taking
notice of the advowfon ; at every other turn it is ftill
appendant : But if there had been any exprefs exception-
of the advowfon, it would then be in grofs. Gihf. 757.
But i^i the cafe of the king, by the ftatute of Prero-
gativa regis, 17 Ed. 2. c. 15. PF/jen the king giveth or
granUth land or a manor with the appurtenances ; without hs
make exprefs mention in his deed or writing of advowfons of:
churches when they fall^ belonging to fuch manor or land^ at
this day the king referveth to himfelffuch advotvfons^ albeit that-
among other perfons it hath been ohferved otherwife,

Giveth or granieth] But when he re/loreth, as in cafe of
the reftitution of a biftiop's temporalties ; then advowfons
pafs without exprefs mention, or any words equivalent
thereto. 10 Co. 64.

IVithout he make exprefs metition] Either by name, or with
the appurtenances^ or as fully and perfeSfly^ or /;/ as ample
manner and for m^ or the like; which have been adjudged
^uivalent to an exprefs mention: becaufe the grantee
njay inquire what the appurtenances were, and in what ,
manner and form it was held ; and forafmuch as the un-
certainty may be reduced to a certainty by inquiry or cir-
cumftance, the grant is good. 10 Co, 64.

B 4 Other

. 8 :»tt)oMoti.

Other pgrfim] The law, in the cafe of a common perr
fbn, is thus kt down by Rolle, out of the ancient books :
If a man feifed of a manor to which an advowfon is ap-
pendant, aliens that manor, without faying with the ap-
furtenances (and much more without naming the advow-
fon) yet the advowfon fhall pafs; for it is parcel of the
manor. 2 Roll's Abr. 60.
^^▼owfoa only 4. The right or property which a patron hath in an
• truft. advowfon, will not warrant a plea (as it-is in temporal

property) that he is feifed in his demefne as of fee; but
only, feifed in fee. The reafon of which is, becaufe that
inheritance, favouring not de domo^ cannot either ferve for
the fuftentation of him and his houihold, nor can any
thing be received for the fame, for defraying of charges.
And in the cafe of John London and the church of South*
well, where the words of the leafe were, commodities,
' ^ ^ emoluments, profits, and advantages, to the prebend be-

hanging ; it was adjudged, that the advowfon could not
pafs by the faid words, becaufe all of them implied things
gainful ; which (as was added) is contrary to the nature
of an advowfon, regularly, i In/i, 17.

And hereby it appeareth, how the common law doth
deteft fimony, and all corrupt bargains for prefentations
to any benefice ; but that a fit perfon, for the difcharge of
, the cure, fhould be prefented freely without expectation of
any thing. Nay fo cautious is the common law in this
point, that the plaintiff in a quare impedit could recover no
damages for the lofs of his prefentation, until the ftatute
of the 13 Ed. I. r. 5. And that is the reafon that guar-
dian in focage fhall not prefent to an advowfon, becaufe
he can take nothing for it, and by confequence he can-
not account for it ; and by the law he can meddle with
nothing that he cannot account for. i Injl, 17.

Which faid do£lrine, and the plain tendency thereof,
are exadtly agreeable, not only to the nature of advow-
fons, which are merely a trufl veiled in the hands of pa-
trons by confent of the bifhop, for the good of the church
and religion ; but alfo to the exprefs letter of the canon
law, the rule of which is, that the right of patronage,
being annexed to the fpiritualty, cannot be bought or
fold. So that the notion and practice of making merch-
andife of advowfons and next avoidances, is not eafily re-
conciled, either to the laws of the church, or to the an-
cient laws of the land, or to the nature of advowfons,
confidered as trufts for the benefit of mens fouls. Nor
4oth it follow, either from the patron's being now vefted

with

irlxh that right by the common law> or from its being
annexed to a temporal inheritance, that it is it felf a tjeni-
poral inheritance, or ought (legally fpeaking) to be con-
fidered otherwife than as a fpiritual truft > fmce it is cer-
tain, that the foundation of the right was the confent of
the bifhopj and as to what is called appendancy, it
amounteth to no more than this, that a truft of a fpiritual
nature, and for fpiritual ends, fhall reil in the fame per-
fon to whom the temporal inheritance doth belong. For
Ihe feparation of advowfons from, the ma^iors, and the
grants of next avoidances and the like, were fteps taken,
afterwards, and what undoubtedly were never thought of
by the bifhop upon the firft conccffion ; who had nothing
in his eye but the encouragement of fuch pious founda-
tions, and a reafonable refpe<5l to the founder (who was
fuppofed to dwell there) in the nomination of fuch a
clerk as might be acceptable to himfelf ; under the re-
ftraint, of being admitted or not admitted by the bifhop.

The equity of which union of the advowfon to the
manor, feems to be the foundation of that maxim of the
canon law, jus patronaius franfit cum univerfttate nifi fpe^
dahter 4xcipiatur ; and of the common law, that the ad-
vow^n paflfeth with the manor of courfe, without any
exprefs words to convey it ; for tho' it be otherwife in the
cafe of the king,, yet that is upon the foot of the ftatutc
of Prerogativa re^ts, and not of the common law. Ciif,

758-

To this purpofe it is material, that the canon law tx-*
prefsly forbad the obtaining and procuring of next pre-
fentations ; as we find in a decretal epiftle of pope Alex-
ander the third to the bifhop of Exeter ; upon which, the
rule of the law is, that he who purchafeth an advowfon
ought to be deprived thereof. Gihf 758.

5. Advowfon being an inheritance inca^-poreal, and not HowgrantaUc.
lying in manual occupation, cannot pais by livery ; but
may be granted by deed, or by will, either for the in-
heritance, or for the right of one or more turns, or for'
as many as Ihall happen within a time limited. But this
general rule, with regard to advowfons in grofe, next
avoidances, and the like, is to be miderftood with twa
limitations :

( I.) That it extends not to ecclefiaftical perfons of any
kind or degree, who are feifed of advowfons in the right
•f their churches ; nor to matters and fellows of colleges,

-nor

nor to guardians of hofpitals, who are feifcd in right, of,
their houfes: all thefe being reftrained (the bifhops by
the I EL c. 19. and the reft by the 13 El. c. 10.) from
making any grants but of things corporeal, of which a
rent or annual profit may be referved j and of that fort,
advowfons and next avoidances, which are incorporeal
and lie in grant, cannot be. And therefore fuch grants,
however confirmed, are void againft the fucceflbr ; tho*
they have been adjudged to be good againft the grantors
(as bifliop, dean, mafter, or guardian) during their own
times.

(d) Where the right of granting is abfolute and indif-
putable ; yet a grant cannot be made by a common per-
ibn, whilft the church is void, fo as to be intitled there-
by to fuch void turn. For however the avoidance that
Ihall happen next after, or the inheritance of the ad-
vowfon, may be granted when the church is void ; the
void turn itfelf (being a mere fpiritual thing, and an-r
nexed to the perfon of the patron) is not grantable : It
is then (as the law books fpeak) a thing in power and
authority, a thing in action and effecSt; the execution of
the advowfon, and not the advowfon. This is the dodtrine
and language of all the books 5 which alfo fay, that if two
have a grant of the next avoidance, and one releafeth all
right and title to the other while the church is void ;
fuch releafe for the fame reafon is void. But all this is
to be underftood of common perfons only, and not of th*
king ; whofe grant of a void turn hath been adjudged to
be good. Gibf. 758. Watf. c. 10.

And with refpe£i: to clergymen in particular, it is enadcd-
by the 12 An. Jh 2. c. 12. as follows : Whereas fome of
the clergy have procured preferments for themfelves^ by buying
eccleftajiical livings^ and others have been thereby difcouraged 5
it is ena^ed^ that if any perfon Jhall for any fum of money re-i.
ward gift profit or advantage directly or indirectly ^ or for or
hy reafon of any promife agreement grant bond covenant or other,
affurance of or for any fum of money reward gift profit or be--
nefit whatfoever direftly or indire^ly^ in his own na?ne or in.
the name of any other perfon ^ take procure or accept the next,
avoidance of or prefentation to any benefice with cure of fouls ^
dignity prebend or living ecclefiaflical^ and jhall he prefented or
collated thereupon \ every fuch prefentation or collation., and.
every adniijfion injiitution inveftiture and irulu^ion upon the
fame^ Jhall be utterly void fruj irate and of 7iq effect in laWy^
and fuch agreement flmll be deemed a femoniacal contra6i ; anci
it jhall be lawful for the c^uccn her heirs and fucceffors^ to pre--

Jent

fent or collate unto^ or give or hejiow every fuch benefice'^ dig-
nity prebend and living eccleftajlical for that one time or turn
only ; and the perfon fo corriJptly taking procuring or accepting
any fuch benefice dignity prebend or livings fioall thereupon and
from thenceforth he adjudged a difahled perfon in law to have
and enjoy the fame^ and ftjall alfo be fubjeSf to any punijhment
pain or penalty limited prefcribed or infli£icd by the lazvs ec-
clefiaflicaly in like manner as if fuch corrupt agreement had
been made after fuch benefice dignity prebend or living ecclefiaf-
iical had become vacant ; any law or Jiatute to the contrary in
any wife notwithflanding.

But this a6l being only reftri£live upon clergymen, all
other perfons continue to purchafe next avoidances as they
did before, and prefent thereunto as they think proper.

^. As to advowfons in grofs^ there cannot be any de- How inherited
fcent thereof from the brother to the fifter of the intire [^°"» -^*^ ^*=«^'
blood, but the fame fhall defcend to the brother of the
half blood, unlefs the firft had prefented to it in his life
time, and then it {hall defcend to the fifter, fhe being the
next heir of the intire blood. Waif c. 8.

So if one be feifed of an advowfon in fee, and the
church doth become void, the void turn is a chattel ;
and if the patron dieth before he doth prefent-, the avoid-
ance doth not go to his heir, but to his executor. Watf,
c. 9.

But if the incumbent of a church be alfo feifed in fee
of the advowfon of the fame church, and die ; his heir,
and not his executors, fhall prefent : for altho' the ad-
vow^fon doth not defcend to the heir till after the death
of the anceftor, and by his death the church is become
void, fo that the avoidance may be faid in this cafe to
be fevered from the advowfon before it defcend to the heir,
and vefted in the executor j yet both the avoidance and
defcent to the heir happening at the fame inftant, the title
of the heir fhall be^ preferred as the more ancient and
worthy. Watf c. ^.

7. By laft will and teftament, the right of prefenting May be dcvifca
to the next avoidance, or the inheritance of an advowfon, ^^ '^^^^^
may be devifed to any perfon ; and if fuch devife be made
by the incumbent of the church, the inheritance of the
advowfon being in him, it is good, tho' he die incum-
bent ; for altho' the teftament hath no efFe£l but by the
djsath of the teftator, yet it hath an inception in his life
time. And fo it is, tho' he appointt by his will who fhall
be prefented by the executors, or that one executor fhall

prefbnt

1 2 l^niDoMam

prcfcnt the other, or doth devife that his executors fhaU,

grant the advawfon to fuch a man. IPatf, c. lO;

A^vowfon in CO- g^ Where there are divers patrons, and they vary in

^*i^"aj°e'l^' their prefentment i if they be jointenants, or tenants 'ujl

nants in com- common of the patronage, the ordinary is not bound to

admit any of their clerics, and if the fix months pafs,^then

hfi may prefent by the lapfej but he may not prefent

within the fix months, for if he do, they may agree and

bring a quare impedit againft him,, and remove his cleric,

and fb the ordinary fhall be a difturber. Dr, ^ St. b. z.

c. 30.

And by the canon law, where divers did prefent, being
cither coparceners, jointenants, or tenants in common,
the bifhop, if he pleafed, might judge of the fitnefs of the
clerks, and chufe which of them he would. Gibf. 765.

But by the common law, if the patrons have the pa*-
tronage by defcent, as coparceners j then is the ordinary
bound to admit the clerk of the eldefl fifter j for the eWeft
fhall have the preference in the law, if {he will : and then
at the next avoidance, the next fifter fhall prefent, and fo
by turns one fifter after another, till all the fifters or their
heirs have prefented ; and then the eldeft fifter ftjall begi^
again. And this is called a prefenting by turn ; and it
holdeth alway between coparceners of an advowfon, ex-
cept they agree to prefent together, or that they agree by
compolition to prefent in fome other manner ; and if they
do fo, the agreement muft ftand. But if after the death
of the common anceftor the church voideth, and the eldeft
fifter prefcnteth together with another of the fifters, and
the other fifters every one in their own name or together ;
in that cafe the ordinary is not bound to receive any of
their clerks, but may fuftcr the church to lapfe : for he
{hall not be bound to receive the clerk of the eldeft fifter,
but where ftie prefenteth in her own name, i I/i/i^ 186.
243- 2 In/}. 364.

And in this cafe, where the patrons vary in prcfent-
ment, the church is not properly faid to be litigious, fo
that the ordinary fliall be bound at his peril to direct a
writ to inquire of the right of patronage, for that writ
lieth, where two prefent by feveral titles : but thefe pa-
trons prefent all in one title, and therefore the ordinary
may fufter it to pafs, if he will, into the lapfe. Dr, 6*
Si. b. 2. c. 30.

[Note, Coparceners are, where lands defcend to daugh-
ters, fifters, or other females of kin in equal degree i
Ihefc are but as one heir to their anceftor -, and they or

th^i^

their heirs refpe£^ively hold the lands together, till a par-
tition is made, either by mutual confent, or by the writ
-de parti tione fecienda. Jointenants are, where lands are
conveyed to two perfons, or more, jointly ; and thefe
jnuft jointly plead and fue, as coparceners muft do ; but
jointenants have a fole and peculiar quality of flirvivor-
fhip, fo as when one of them dies the furvivor or furvi-
vors (hall have the whole. Tenants in commm arc they,
-who have lands by feveraJ titles, and not by a joint title,
and none of them knoweth his feveral part, but Aey oc-
cupy and take the profits in common.]

By the 13 Ed, 1. Ji. i. c. 5. When an advowfon de-
fccndeth unto parceners, tho' one prefent twice, and
ufurpeth upon his coheir ; yet he that was negligent fhall
not be clearly barred, but another time fhall have his turn
to prefent when it falleth. / 5.

The clerk of a coparcener, being once compleat incum-
bent, tho* he is afterwards deprived, the turn is ferved ;
and fo it is where, by reafon of fome incapacity the infli-
tution was voidable by fentence declaratory, but not void
(as hath been held, in cafe a layman is prefented ;) be-
caufe the church is full, until fuch fentence comes. But
if, after prefentation inftitution and indu6lion, the church
remains not only voiadable, but by fpecial declaration of
the law merely and actually void (as for not reading the
articles, or the like) ; there the turn is not fer\'ed, but
the prefentor may prefent again, bccaufe the church was
never full. 5 Co, iC2. Gtljf. 765.

If a pcrfon prefented by a coparcener, is incumbent,
and depri\^d, and the next prefents 5 notwithftanding that
the fecond is compleat incumbent, yet if he is deprived,
and the firft reftored, the turn is not ferved ; becaufe the
reftoring of the firft is a recontinuing of his incumbency
upon the foot of the former prefentation inftitution and
indu(5tion ; who al fo, dying incumbent, will be the Jaft
prefentee. ^Co. 102. Gibf, 765.

By the ftatute of the 7 An. c. 18. If coparceners^ or
hint tenants^ cr tenants in common be feifed of any eft ate of in-
heritance in the advowfon of any church or vicarage or other
<ccleftaftical promotion^ and a partition fljall be made between
ihsm to prejmt by tiirm ; thereupon every one flmll he takert and
adjudged to be feifed of his or her feparaie part of tJie advow-
fon to prefent in his or her turn \ as if there be two^ and they
make fetch partition, each fjall be faid to be feifed, the one cf
the one moiety to prefent in the frjl turn, the ether of the other
tnoiety fo prefent in the fecond turn ; in like manner, if there

14 :^iJi)oift)fott»

he three ^ four^ or more^ every one Jhall be /aid to be felfed cf
his or her fart ^ and to pre fent in hh or her turn.
' And by the ftatute of the 13 Ed. i. ft. i. c. 5. Same^
times when an agreement is made between many claiming one
{idvowfon^ and inr oiled before the jujlices in the roll^ or by fine^
» in this form^ that one (hall prefent the firji time^ and at the

next avoidance another ^ and the third time another^ and fo
of many in cafe there be many \ and when one hath prefent cd^
and had his prefentation^ which he ought to have according to
iheform of their agreement and fine ^ and at the next avoidance
he to whom the fecond prefentation helongeth is dijiurbed by any
that was party to the faid fine, or by fome other in his Jiead \
it is provided, that from henceforth they that be fo diJlurbed
jhall have no need to fue a quare impedit, but Jhall refort to
the roll or fine ; and if the f aid concord or agreement be found
in the roll or fi.ne, then the jheriff'.fioall be commanded, that he
■give knoiuledge unto the diflurber, that he be ready at fome
Jhort day, co7itaini?ig the fpace of fifteen days or three weeks
(as the place happeneth to be near or far) for to fijew if he can
alledge any thing, zuhcrefore the party that is dijiurbed ought
not to prefent : and if be corne -not, or per adventure doth come
and can alledge nothing to bar the party of his prefentation by
reafon of any deed made or written fence the fine was made or
inr oiled, he Jhall recover his prej'entation with his damages.

And this extendeth, as well to ftrangers of blood, as
to coparceners that are privy in blood ; and if one of the
parties or his heirs, or any ftranger ufurp in the turn of
another, the party wronged is not driven to his quare im~
pedit ; for it may be, that the quare impedit, or affife of
darrein prejentment, may fail : and yet he may have reme-
dy by this aft ; for albeit there be a plenarty by fix months,
yet the party may have ?i Jcire facias upon the roll or fine,
and therein recover the prefentation and damages. 2 Injl,

In the cafe of the biihop of Salijbury and Philips, M^
1 1 ^. where two were feifed in fee of the advowfon in
grofs as jointenants, and by indenture agreed from thence-
-fbrth to be feifed thereof as tenants in common, and not
as jointenants, fo as they and their refpedive heirs fhould
prefent feverally and by turns ; Holt chief juftice faid,
that a compofition might be, either by record, or by deed,
or by parol : That after the firft way, if one prefent, the
other was not by an ufurpation put to a quare impedit ;
that by the fecond way, the compofition is good, and if it
be once executed on all fides, he that brings a quare im-
pedit need not mention the compofition, which fhews the

very

mtJt)oMort» IS

very right and inherrtance to be fevered, and that a fepff-
rate intereft is veiled in each, to prefent alternately ; that
the third way, may be between parceners, but between
ftrangers in blood compofition cannot be without deed.
Gibf 764. I Salk, 43. > Carth. 505.

J. <^, M. 1700. Ainhurjl and Dawling, The defendant Advowfon Jn
^having mortgaged the manor of Thunderfley to which an ^ ^ n^o^gaoor.
::advowfon was appendant, to the plaintiff, who brought
lithe bill to forecl^fe, the church became void ; the defen-
dant moved the court for an injunction to ftay the pro-
ceedings in a quare impedit brought by the plaintiff. By
the court : Although the defendant Dawling hath rto
ubill, yet being ready and offering to pay the principal,
- intereft, and cofts ; if the plaintiff will not accept his
money, intereft fhall ceafe, and an injuncSlion fhall be to
ftay proceedings in the quare impedit ; for the mortga-
gee can make no profit by prefenting to the church, nor
can account for any value in refpecSt thereof to fmk or
leffen his debt ; and the mortgagee therefore in that cafe,
until a foreclofure, is but in the nature of a truftee for the

mortgagor. And the like order was made between Jory

and Cox; where the defendant had an injunction againft ,
the plaintiff, to ftay his prefenting to a church, that be-
came vacant pending the fuit. 2 Vern. 401.

So in the cafe of Gully and Selby^ M, 7 G, It is a rule
in equity, that though in the cafe of a mortgage in fee
the legal right of prefentation is vefted in the mortgagee ;
yet they will interrupt that prefentation, and compel the
ordinary to inftitute the clerk of the mortgagor any time
before foreclofure ; it not being any part of the profits of
the eftate. Str^ 403.

H, 1726. Gardine)' and Griffith. Samuel Gardiner,
the plaintiff's father, being polTeffed of a long term for
ninety nine years of the advowfon of Eckington, made a
mortgage thereof to the defendant by way of aflignment
of the term, upon condition to be void on payment of the
mortgage money and intereft at the end of the year, and.
there was a covenant in the mortgage deed, that on every
avoidance of the church the mortgagee ftiould prefent.
Several years after, the mortgagor died. It was admitted
by the lord chancellor and by the counfel on both fides,
that if there be a mortgage made of a manor,, and an ad-
vowfon appendant, before the mortgage is foreclofed
(though the mortgagee be in poffeffion) yet the mortga-
gor fhall prefent if the church becomes void ; for the pro-
ientation is to be prefumed to yield no proUt, andconfa-

4 quently

i6 :aDt)Ott>fOtt.

qucntly cannot be accounted for. But the cafe here was
faid to differ ; nothing being mortgaged here but the ad-
vowfon ; fo that the mortgagee could have no other fatis-
faiStion, than by providing for a child relation or friend,
on the church's becoming void ; and the rather for that it
was the exprefs agreement in the mortgage 6Qcdy that as
often as the church ftiould become void, the mortgagee
ihould prefent : which exprefs agreement would be good
even in cafe of a mortgage of a manor with an advowfon
appendant ; and this was ftill ftronger, as it was in the
cafe of a perifhing term, where every prefentee or incum-
bent would have an eftate for life in the church : to which
the court, though they gave no opinion, yet feemed to
incline. But it appearing, that this bill againft the mort-
gagee and his prefentee was brought feven months after
inftitution, the lord chancellor difmifled the bill ; declare
ing^ that as a quare impedk was confined to the fix months
after the death of the lafi: incumbent, fo the bill feekinor
to compel the defendant to refign, and confequently to
deprive him of his living, ought by the fanie reafon to be
limited to the fame time ; and the relieving againft this
would be to relieve againft an a6l of parliament, which
had pund^ually been obferved for fome hundreds of years,
ever fince the 13 Ed. i. and that the fix months time
ought to be as much obferved here as at law, in regard it
tendoth to the peace of the church : Indeed, had a quare
impedit been brought within the fix months, and the bill
been preferred after the fix months, the court might, on a
proper cafe, give dire£tions in aid of the quare impedit,
that the mortgage fhould not be given in evidence; but
here there was no quare impedit brought, and the bill
came out of time. Wherefore by the court : Difmifs the
bill as to that part which feeks to compel the defendant to
irefign his living ; but let the plaintiff redeem the mort-
gage on payment of principal, intercft, and cofts, 2 P.
^/7/. 404.
Advowfon in te- ^^' ^^ ^ woman that hath an advowfon, or part of an
Banc by curtefy. advowfon, to her and her heirs, doth take an hufband ;
the hufband may not only prefent jointly with his wife,
during the coverture, but alfo having ifiue by her, after
her death (though the right of patronage, fo far as it was
in the wife, defcends to her heir ; and though the wife
did never prefent to it, but died before the church voided)
the right of prefenting during the hufband's life is lodged
in him, as tenant by courtcfy, though his wife had but a
fcifin in law, becaufe he could by no induftry attain to

any

%hy other feirm. And if the church, in this cafe of* the
hufband, void during his life, and then he die before the
church is filled ; yet the heir fhall not have the turn, but
the hufband's executor. And if the church being void,
the wife dies, having had no IfTue, fo that the hufband is
tiot tenant by courtefy, yet he fhall prefent to the void
turn. fFatf. c. 9.

11. If a man that Is feifed of an advowfon takes a wife, Advowron in te*
and dies ; the heir fhall have two prefentments, and the "*"' '" '^°''"'
•wife the third ; yea, and though the hufband in his life

time had granted away the third turn : that is, the wife
may in a proper a£lion recover the third prefentation as
her dower, or it may be alTigned to her for dower ; but
without fuch recovery or affignment, the wife cannot
make title to the advowfon, or to any prefentation, no
more than fhe can enter by her own authority into any
other lands or tenements to which fhe hath right of dow-
er. Or if a manor, to which an advowfon is appendant,
doth defcend to an heir, and he afTigns dower to his mo-
ther of the third part of the manor witn the appurtenances ;
ibe is thereby endowed of the third part of the advowfon,
and may have the third prefentment. fVatf. c. 9.

12. M, 4. G. 2. Robinfon and Tonge, In the chancery : Advowfon alTet^
Upon debate it was held, that an advowfon in fee was for payment of
real afTets in the hands of the heir for payment of debts, *^^^"'

And the decree was affirmed in the houfe of lords. Str,
879. Finer, AfTets. A. 28.

13. If two patrons prefent to one and the fame church Trial of the
by feveral titles, the church is become litigious ; becaufe '"'g^.^ of ad vovy-
the bifhop knows not which clerk to admit : And it Teem- tuai'coun/by'
eth, that the church is not lefs litigious, though they jus patronatusi
both prefent the fame perfon ; becaufe when the bifhop

admits him as the clerk of the one, he puts the other out
of pofTefTion, and confequently to his a£lion ; and the
"bifliop becomes a diflurber, if he who is put out of pof-
fefTion prove to have the better title. Deg, p. i. c. 3.

But if two jointenants or tenants in common prefent
feveral clerks, this doth not make the church litigious ;
for the bifhop may admit the clerk of which he pleafes :
or if they do not agree and join in prefenting a clerk with-
in the fix months, the bifhop may collate, id,

Alfo where one patron doth prefent his clerk before
any other hath prefented, the church is not yet litigious ;
therefore if the bifhop doth refufe him, he is 'a difturber :
and though another fhould after prefent, whereby, the
church then doth become litigious, yet that will not ex-

VoL. I. C cufe

cufe the bifliop from being a difturber, if the firft patroA
be upon trial found to have the better title ; nor can hi^
have the benefit of lapfe, though no a£tion be brought
againft him, which makes it fafe forthebifhop to receive
him that comes firft. But then a queflion may be made.
How can a church (the bilhop a<Sling thus fafely for him-
felf) ever become litigious ; and how can it be truly faid,
that the bifhop may juftly refufe both clerks upon account
of two feveral patrons making their feveral prefentments
to him, unlefs the prefentecs fhould happen to tender
their prefentments at one and the fame time, which is not
to be fuppofed ? In anfwer to which, ■ It is true that if
the bifhop doth unjuftly refufe the clerk of the true pa-
tron before any other prefentment is made, although the
church by another perfon's prefenting after, doth become
litigious, he will not be excufed (the true patron prevail-
ing at law) from being a difturber ; but there is a great
difference betwixt the bifhop^s fufpending the admifliba
and inftitution of a clerk, and his abfolute refufal of him,
A bifhop is not bound inftantly upon the prefentment ten-
dred to admit, if he hath other bufinefs in band, but may
appoint the clerk to repair to him at another time to re-
ceive admiiTion and inflitution. And when a perfon is
prefented to him, he may take competent time to examine
fcis fufficiency, and inquire and inform bimfelf of his con-
verfation. And by a hafty admiflion of the ckrk of a
difturber, the bifhop might do great wrong in furprifing
other patrons that have right : and the law doth not fo
haften the bifhop's proceeding, but that he may take con-
venient time to examine the clerk, that other pretenders
may take notice of the vacancy, ff^atf, c. 20. I>eg. p,
I. c. 3.

But in cafe the patron feareth that the bifhop will ad-
mit another clerk, or be not yet refolved of his clerk, he
may enter a caveat with the bifhop not to admit the clerk
of any other ; and though this do not fo bind up the
bifhop that he cannot admit the clerk of another perfon,
yet if the bifhop wiO prefume to do it without a jus pa-
tronatus, he may bring himfelf undei feveral inconveni-
ences. Deg. p. I. c. 3*

But a caveat cntred during the life of the incumbent,
is of no force. This was refolved in the cafe of Hiitchins
^nd Glover, H. JS7^' where the caveat was entred when
the incumbent lay in extremis ; and it had been declared
in the fpiritual court, that the inftitution afterwards given
tvas void i for fo is the rule of the canon and civil law,

that

i:^iit)oMon* 1-9

ft at a caveat may be entred where a perfon feareth a fa«
ture damage : but in this particular it is of no force^
becaufe contradidled by the common law. However,
where fuch fufpicion is, that a title may probably be
ufurped upon an avoidance, it is a fafe and ad vi fable
courfe, to enter a caveat before the incumbent dies ; which
will be a reftraint upon the ordinary from admitting any
clerk haftily, though not in law, yet in equity and pm-
dence. Cro, Ja, 463. Gibf. 778.

But neverthelefs an admiilion contrary to the caveat
entred, is good in law : That is to fay, the admiffion^
inftitution, and induction thereupon mall iland to all
intents and pu^pofes by the rules of the common law 5
in the eye of which, the caveat is faid to be only a caution
for the information of the court (like a caveat entred in
chancery againft the pafTmg of a patent, or in the com-
mon pleas againft the levying of a fine) , but that it doth
not preferve the right untouched, fo as to null all fubfe-
cjuent proceedings ; nor hath it ever been determined,
that a bifhop became a difturber, by giving inftitutiori
without regard to a caveat j on the contrary, it was faid
by Coke and Doderidge, that they have nothing to d^
with a caveat in the common law. Gibf, 778.

Now the church being become litigious, the bifhop in
fuch cafe, in order to fecure himfelf, ought to award ;»
jus patronatus to inquire of the right j which is merely an
inqueft of office, in nature of a writ de proprletate probari"
da, Deg. p, i. c. 3.

And this procefs is part of the ancient inquifition, that
we read of in our elder conftitutions and records ; which
includes, not only an inquiry into the points immediate-
ly relating to the right of patronage, but alfo into the
qualifications of the perfons prefented, and fuch other
heads as the bifhop thought it proper for him to be in-
formed of. And thisdnquifition (however now grown to
be occafional only, when churches happen to be litigious)
feems anciently to have been ifilied of courfe, upon every
prefentation made, and antecedent to the admilTion and
inftitution thereupon. Gibf. 778;

It hath been a queftion, whether the bifhop is bound to
fue the jus patronatus at his own cofl and peril, or only at
the prayer, and at the coft of the party that prays it, or of
both parties : but the better opinion feems to be, and fo
is the practice, that the fame is to be fued at the prayer
and at the coft of one of the parties that prays it, or of
both the parties if they join. Deg. p. i. c, 3. Watf,
c. 21.

C 2 And

20 :^titjD»)fotti

And If the blftiop refufeth to award it accordingly, iha^
he may not be fued in the fpiritual court, yet he thereby
' brings upon himfelf divers inconveniences : he becomes a
difturber 5 and he hinders the lapfe, if the clerk is not
admitted in fix months; and (as Hobart held) if fuch
patron makes good his title by due form of law, and did
jiGt name the bifliop in the quare impedit, he may have
an a6tion upon the cafe againft the bifhop, and recover
the cofts and damages he hath fuftained by reafon of a
wrongful admiflion of the bifhop without the awarding cf
7L jus patronatus as aforefaid. But if the bifhop happens
^i;6 admit him who upon trial appears to have the better
title^ then the other is without all remedy againft the
bifhop. Gibf. 778. Deg. p. i. c. 3. IFatf. c. 12.

Alfo either of the contending parties may demand a jus
patronatus fingly. Gibf. 778.

But in cafe the bifhop delay to admit the true patron's
clerk, he may fue a duplex querela out of the arches, to
command the bifhop to admit his clerk; and then, if the
bifhop do not admit the clerk within nine days, or the
fpace affigned by the duplex querela, or return a legal
caufe why he doth it not, the metropolitan may admit
the clerk in the ordinary's default. Deg. p. i.e. 3.

But the bifhop may return, if the truth be fo, that the
church is litigious, and that he cannot admit the clerk
till the right be determined in a jus patronatus ; which
will excufe him. id.

But the furefl and fafefl way in this cafe is, if the
bifhop delay the true patron, immediately to fue a quare
impedit, and thereupon a ne admittas to the bifhop ; and
then if the bifhop after the receipt of fuch writ, admit
the clerk of any other perfon without a verdidi: in a jus
patronatus, the true patron may have a writ called a quare
incumbravit, againfl the bifhop, and may therein recover
the prefentation with damages, id.

The jus patronatus being awarded, is to be executed
according to the forms of proceeding in the ecclefiaflical
courts.

Which is thus :

The bifhop, if he pleafeth, may fit himfelf as judge;
but the ufual way is by commiffion iflued to his chancel-
lor, or to fuch other perfon or perfons as he fhall judge
proper, fkilled in the canon and ecclefi?.fl:ical laws. Deg,

P- ': ^- 3- .

Thcfe commllTioners the bifhop doth appoint to fit in
the void church on a certain day; and doth decree a

myaitton

:^t)t3oMoii, 21

,^, *.- « ' ^ . * .

UPkOnition againft the patrons prefenting and the clerk
prefented, to be prefent there at the day appointed, to
fee the proceedings. Clarke^ Tit. 98.

Alfo the bilhop is to decree, and fend forth a publickv
edi<9:, againft ail having or pretending to have any intereft
or right of prefenting to the vacant church, to appear at
the day and place appointed, to fhew their right. And
this publick edi£l: is to be affixed to the door of the void
church, in time of divine fervice. id.

And at the day appointed for this inquiry, the perfon
or perfons executing the aforefaid mandates or citations,
^re to make oath of the due execution thereof; or the
execution of them may be certified under fome authentic
feal, as of the archdeacon, or commilTary. Clarke^ Tit,
100.

Againft which day, the biftiop is alfo to fummon a jury
for this purpofe by viray of citation ; which jury is to con-
fift of fij^ clerks and ftx laymen, that live near to the void
chufch ; or of as many more as the bifhop pleafes, the
proportion being obferved of clergy and laity, that there
be as many of the one fort as of the other. Clarke^ Tit.
98. Watf, c. 21,

When the commiiTioners are fet, they are to give direc-
tions to open the court ^ and the commiifion is prefented,
and read.

After which, the parties cited, and thofe of the jury are
to be publickly called; and if any of the jury appear not,
being duly, fummoned, they may be punifhed, that is to
fay, the clergymen by fequeftration, and the laymen by
excommunication, and fo be compelled to appear. Clarke^
Tit. 100. IVatf. c. 21.

But if twelve of the jury appear, that is, fix of each
fort, it is fufficient. Clarke^ Tit. 100.

And If others cited appear not, they are to be pro-
nounced contumacio^Us ; and the proceedings are to go oa
rjotwithftanding, and in pcenam contupicicia of them that
do not appear, id.

If fix clergy ai)d fix laymen appear to be of the jury,
which is the competent number ; they are to be fwoni
faithfully to inquiry of the articles; and in fwearing them,
firft a clerk, then a Jayman is to be fworn, till a jury of
twelve or more is made up. Clhrke^ Tit. 100. TVatf.
f. 21.

Which articles are to contain the particulars about
which the jury arc to inquire; namely, i. Whether the
church be void, and how it became void. 2i Who pre-.

C 3 fented

22 :3(t)t?otbfott.

fented at Ac laft preceding avoidance, and at die twa
ibrcgoipg avoidances. 3. Whether the perions prefent-
ing preiented in their own right. 4. In whom the inhe-
ritance of the advowfon is, and who ought to prefent to
the void turn. 5. Whether any of the clerks prefented
be known or iufpe£led to be guilt)' of any crime, rendring
him inc.-r-ible of admiffion to the faid benefice, as herefy,
fiinorv, perjury, adulters', drunkennefs, or fucb like,
CL:-h, Tit. '99. iratf c. 2 1 .

Then the counfel and advocates of both parties are to
fhew their refpec^ive clients title?, and to produce their
ci'idencej, and prove the fame. Clarke^ Tit. icc.

And after the evidence is given on both fides, and
counfel fully heard, the jury may gi\-e their \Trdi£i at
any time the fame dav, or if the caufe be doubtful, the
judge mnv aifign them a longer time for to confider of
the matter, and afiign aho a place where they fhall give
their vera id. Clc^k^y Tit. icc.

And according to the verdict given, the bifhop admits
and inftitutes the perfon in whom the right is found. Not
that he is abfolutely bound to do this, or that the admiflion
Tjid inftirution of another is void in law ; but this, gene-
rally fpeaking, is the fiircil and mod impartial way ; and
the bilhop by doing otherwife, brings up)on himielf the
inconveniences which accrue upon the refufal to award z
jus patronatus. i)/r. p. I« e. 3. Ifctf. c. 21.

But fuppofe the jury will not agree of their verdict,
and the one half be for the one patron, and the ether half
for the other patron ; or, that they refufe to gi\ e any
verdi£V at all ; or if they find a fpecial verdift, as it feem-
cth that they may ; or if (where two patrons ha\-e each a
V-is patronatus) there is a verdict in favour of each patron ;
it feemeth in thefe cafe% that the biihop (inalinuch as he
hath done his duty) may refufe both, without fubje<Sing
himfelf to any of the laid inconveniences : though it is
affirmed by fome, that in fuch cafes he may award a fe-
cond jus patronatus. GUf, 779. fratf. c. 21. De^^
p. I. c. 3.

And it is to be obferved, that after a verdl^l found in a
ius patronatus for the patron, the patron muft again re-
cueft the bifhop to admit his clerk ; otherwife, if the
church lapfe after fix months, the bifhop may collate.
D^r. p. I.e. 3.

it is to be obferved further, that a church may agaili
become litigious, if after verdidl gi'ven upon a jus patro-
natus, another clerk is prefented by a patron whofe right

vr2S

was not difcufTed In the jus patronatus, before admiiTion
!s rcquefted of any clerk by him for whom the verdi£l
was found. In this cafe a new jus patronatus upon re-
quefl: is to be awarded. But if one hath prefented, and
his title is found upon a jus patronatus, and then requefb
the bifhop to have his clerk admitted, and afterwards ano-
ther prefents ; in this cafe the bifhop fliould for his fafetv
admit the clerk of him for whom the verdicl is founcf,
becaufe otherwife the church becomes litigious by his ^
delay, which will make him a difturber ; and if he doth
not admit, but fuffers lapfe to come to himfelf, and then
collates, it is faid he is a difturber againft both prefenters*
And in this cafe, in an a£lion brought againft the biftiop,
and the fpecial matter being made appear by the pleading,
the ifTue fhall be, whether he for whom the title was
found, did fue to have his clerk admitted, and whether
the fecond prefented fo haftily to the biftiop, that he
could not admit the clerk of the firft before the fecond
prefentation was made, IVatf, c. 20. Deg, p. i.e. 3.

But after all, the effe<3: of this fuit is no more but for
the biftiop's fecurity, that he may avoid being a difturber ;
for the verdidt of this jury is a fufficient warrant for the
biftiop to admit and inftitute his clerk, for whofe title
the verdi£l: is given ; and the bifhop for fo doing fhall
never be made a difturber, though the other patron againft
whom the verdi£t is given fhall after recover in a quare
impcdit or other a£lion : but this doth not at all bind the
title or right of the party ; for that muft be done by fome
of the methods hereafter following. Deg, p. i. c. 3.

Concerning others than bifliops who have power to
grant inftitution, it is ordained by a conftitution of arch-
biftiop Peccham, that no dean^ or other prelate (except the
biJhopSy whofe authority Is not intended to he rejirained by this
conjliiution) J})all make inquifition concerning the matter of pre-
fentation of any per f on to an eccleftajiical henefcey hut in a fuU
chapter of the place y having firfl cited him who hath poffeffton
of the church infuch reafonable timcy as he may have opporiu-
nity to advife with learned counfel and provide for his defence.
And whatfoever fhall he done contrary to this crdinarice^ J}:>all
he void; and the dean or prelate that made the clarJcfline in-
quefi Jhall make fatisfaSlion for the damages which fuch p'ffcffor
hath fuffered ; and the ambitious aggreffor Jhall he excluded from
fuch benefice for ever^ and from accepting any other benefice for
three years, Lind. 217.

That no dean] That is, dean of any cathedral or colle-
giate church, or other dean to whom by prefcription, or

C 4 privilege.

24 :att)oibfoti.'

privilege, or otherwife, it appertaineth to grant inftitu-»
tion, Lind, 217.

Shall make inquifttlon] By which, inquiry is to be made
of the right of prefentation, and the qualifications of the
perfon prefented, and alfo of the avoidance of the church,
and the manner of the avoidance, and other articles ufu-
ally inquired of in fuch cafes. For he who inftituteth,
before his admiflion of the perfon prefented, ought care-
fully to inform himfelf of all thefe things. Lind, 217.

^f the place'] This may be underftood of the church it
felf, to which the prefentation is made. Lind, 217.
Trial in the tern- 14. Albeit by the canon law the right of advowfon
porai courts ; by jg ^^ \^q ^j-jgj jj^ |.}^g ccclefiaftical court, yet the common
rdvowfon^lr- l^w Will not fufFcr this ; and the reafon is, becaufc ad-
rein prefent- vowfons were generally appendant to manors or to the
ment, and quare jj^j^^efnes, and pafled along with them, unlefs a particu-

jmpedit: under ', ^ , ^'r • j tr t

which are indu- lar cxccption was made, Lmd. 217. Ken, impr* 99.

ded alfo the writs

of indicavit, ne admittas, quare incumbiavit, and quare non admifit.

The writ of right of advowfon (breve de re<Eto advoca-
tionis) was fo called from thofe words in the writ, where- "^
by it is commanded, quod plenum reSium teneas de advoca-'
tione. By this, the inheritance of the advowfon might be
recovered, but the incumbent could not be removed.
Gihf 784.

And this writ lieth only for him that hath an eftate,
or right of eftate, in the advowfon, to him and his heirs
in fee fimple ; and is difturbed to prefent upon an avoid-
ance ; having not brought any a6lion of quare impedit or
darrein prefentment within fix months. Godolph. Reper^
torium Canonicuin, 648.

Darrein prefentment is a writ which lieth, where a mart
or his anceftor hath prefented a clerk to a church, and
afterwards (the church becoming void by the death of
the laid clerk or otherwife) a ftranger prefenteth his clerk
to the fame church, in difturbance of him who had laft
or whofe anceftor had laft prefented. Terms of the Law.

^uare impedit is a writ which lieth alfo, where one hath
an advowfon, and the parfon dies, and another prefents a
clerk, or difturbs the rightful patron to prefent. And
this writ was provided chiefly for the fake of purchafers of
^dvowfons, who cguld not have the writ of darrein pre-
2 fentment 5

:3tit)Oia)fon» 25

fentment ; but fo, that gjl who may have that writ, may
have this of quare impedit, if they pleafe. T, L.

Unto the writ of right of advowfon belongeth the writ
©f indicavii^ which is a writ of prohibition that lieth for
the patron of a church, whofe clerk is defendant in the
ecclefiaftical court in an aftion for tithes, commenced by
another clerk, and extending to the fourth part of the
value of the church at leaft. T, Z.

This writ is not returnable ; but if they ceafe not their
fuit, he (hall have an attachment. T, L,

But at this day, writs of indicavit and of right of ad-
vowfon (as well as all other real anions) are grown al-
moft obfolete, and feldom put in pradice. Deg, p. 2. c.
26.

In purfuance of the writs of darrein prefentment and
quare impedit, there is another writ called ne admittas ;
which is, where one hath an adlion of darrein prefentment
or quare impedit, depending in the common pleas, and
he fuppofeth that the bifhop will admit the clerk of the
defendant pending the plea betwixt them : iniuch cafe a
writ ifliies to the bifhop, requiring him not to admit a
parfon to fuch a church, until the right fhall be deter-
mined. Fitzherb, Natura Brevium, 87.

And the writ of ne admittas muft be fued within the
fix months after the avoidance ; for after the fix mcnths?
a man fliall not have this writ, becaufe then the bilhop
may collate for lapfe ; and therefore it is in vain then to
fue for the writ, becaufe the title to prefent is devolved
to the bifhop. F.N.B. 87.

And if notwithflanding the ne admittas, the bifhop doth
admit the clerk of any other perfon, pending the fuit, and
he who brought the ne admittas doth recover ; then he
fhall have a writ of guare incumbravlt to the bifhop, that
he appear and fhew why he hath incumbred the church.
F,N,B. III.

And if it be found by verdidl, that the bifhop hath in-
cumbred the church, after a ne admittas delivered to him,
and within fix months after the avoidance ; damages are
to be awarded to the plaintiff, and the bifhop direded to
difincumber the church. F,N,B, in.

^are non admlfit is a writ that lies where a man hath
recovered an advowfon, and fends his clerk to the bifhop

i6 :stit)Dn)(ott.

to be admitted, and the bifhop will not receive him ; then
he fhall have the faid writ againft the bifhop. T, L.

By the ftatute of magna charta, 9 H. 3. c; 13. JJ/i/es
of darrein prefeniment Jhall be always taken before the jufiices
of the henchy and there Jhall be determined.

The reafon of which was for expedition, that lapfe
might not incur. 2 Infl, 27.

But this is altered, as will appear, by fubfequent fta-
tutes.

By the 52 H. 3. c. 12. In ajflfes of darrein prefentmenty
and in a plea of quare impeditj of churches vacant^ days Jhall
he given from fifteen to fifteen^ or from three weeks to three
weeks ^ as the place Jhall happen to be near or far. And in a
plea of quare impedity if the diflurber come not at the firji day
that he is fummonedy nor caft no effoin^ then he Jhall be at^
tached at another day ; at which day if he come noty nor cafl
no ejjoiny he Jlmll be diflrained by the great dijlrejs j and if he
come not then^ by his default^ a writ Jhall go to the bijhop of
the fame place ^ that the claim of the diflurber for that time Jhall
not be prejudicial to the plaintiff : Javing to the di/iurber his
right at wiGiher time^ when he will fue therefore.

In afftfes of darrein prefentmenty and in a plea of quare tm^
pedii] This a^ extendeth not to a writ of quare non ad*
mifit, nor to an incumbravit ; but only to the aflife of
darrein prcfcntraent and quare impedit; and the reafon
thereof is, for fear of the lapfe. 2 J^fi. 1 24.

Days Jhall he given from fifteen to Jfteen'] By aflent of
parties, a longer day may be given than is prefcribed by
this adii but that affent muft be entred of record. 2 Infl,
124.

And it is to be obferved, that by the common law great
delays are difallowed in four kinds of a6lions, viz. in all
writs of dower, quare impedit, affifc of darrein prefent*
ment, and aflife of novel difTeifm ; and therefore no pro-
tection (hall be allowed, or eflbin de fervitio regis Ihall be
caft in any of them. 2 Injl, 124.

In a plea of quare i/npedit^ if the diflurber com^ not] At
the common law, in a quare impedit, the procefs was
fummons, attachment, and diftrefs infinite ; which was
mifchievous in relpcct of the lapfe : now it is provided,
that if he appear not at the grand diftrefs, judgment fhall
be given for the plaintiff, and a writ t;o the bifhop
awarded. 2 Z///^. 124.

Nor

;»Dt)otbfom 87

Nor cajl no ejfoln] Of eflbins there have been five kinds,
J, De fervitio regis. 2. In terram fan<Slam. 3. tJJtr^
mare. 4. De malo Ie£li, called in the old books eflbniun^
Ac refiantifa. 5. De malo veniendi : And this laft is tl^e
common eflbin, which is intended ifi this a6l, 2 /«/?,

125-

In a quare impedit, or darreifi prefentment, an eflbm
©f the fervice of the king, to the holy J and, or beyond
the fea, lieth not, for doubt of the lapfe; but a commoi;
efToin lieth. 2 Infl, 125.

J writ Jhall go to the bijhop] Upon thefe words of the
^£1, the plaintiff fhaU have writ to the bifhop, without
making of any title^ 2 Inft, 125.

And he fhall have alfo befides, a writ to inquire of
danxages. 2 /«/?. 125.

If the bifliop be out of the re^m ; a writ to the biihoj)
may be awarded to his vicar general, for he is in the place
of the bifhop. 2 /«/?. 125.

If the defendant appear at the grand diftrefs, and take
3 day by prece partium, and after make default ; no writ
ihall be awarded to the bifhop : for this cafe, in refpeft of
his appearance, is out of the flatute. But a ntvr diflrefj
ihall be awarded. 2 /«/?. I2S«

By the 3 Ed. i. c. 51. Forafmuch as it is great charity to
4o right unto all men at all titnes^ when need Jhall be ; by the
fijjent of all the prelates it is provided^ that ajjifes of novel dif
feijin, mortdauncejior^ and darrein prefentment Jhall be taken
in advent^ feptuagejima^ and lent, even as well as inquejls tnay
he taken ; and that, at thefpecial requeji of the king made unto
the bijhops.

By the affent of all the prelates'\ Which Is exprefTed, not
that the prelates alTented alone, but to manifeft that this
aft concerning the crofling of a canon of the church, was
cnadted by their afTeiits. 2 Inji, 265.

Shall he taken in advent, fepiuagejima^ and lent] The caufe
of the making of this ftatute doth manifeflly appear by
Britton, who being bifhop of Hertford, and expert both
in the common and canon law, in his chapter of the
challenge of jurors faith thus : '^ If fufficient jurors ap-
^* pear, feme are removable for jufl challenge of the par-
^^ ties, and alfo in refpeft of the time ; for all things are
*' not fit for all feafons : for it is forbidden by the canons
f^ of holy church upon pain of excommunication, that

*' from

i8 :^t)tJOtbfOtt.

<« from the feptuagefme until eight days after eafleri and
<^ from the beginning of advent until eight days after the
*' epiphany, or in the days of the four times (that is, the
" ember days appointed for publick fafts four times in
" the year), or in the days of the great tetanies, or in
** rog2ition or gange-daySf or in the week of pentecoft, or
«' in time of harveft, or of vintage which endureth from
*« the feaft of St. Margaret (which is the twentieth of
« July) until fifteen days after the feaft of St. Michael
*^ the archangel, or in the folemn fealts of the ads of
*« faints, no man be fworn upon the holy evangelifts,
'' nor any fecular plea be holden in the times aforefaid ;
*' but that all thefe times be given for prayer to god, and
*f to appeafe debate, and to accord them that be at dif-
<' cord, and to gather the fruits of the earth, whereof the
«' people may^ live, which are works of piety and cha-
« rity." 2 /«/?. 264,

By the 13 Ed. i. ft. i. c. 5. IVloereas of advowfons of
churches there be but three original writs, that is to fay, one
writ of right, and two of poffejfton, which be darrein prefentr
inent and quare impedit ; and hitherto it hath been ufed in the
realm, that when any having no right to prefent, had prefented
to any church whofe clerk was admitted, he that was very
patron could not recover his qdvowfon, but only by a writ of
right, which Jhould be tried by battel or by great ajjife ; whereby
heirs within age, by fraud, or elfe by negligence of their war-'
dens, and heirs both of great and mean eflate, by negligence or
fraud of tenants by the curtefy, women tenants in dower, or
otherwife, for term of life, or for years, or in fee tail, were
many times dijherited of their advoivfons, or at leaji (which
was the better for them) were (Iriven to their wfii of right, in
which cafe hitherto they were utterly difmherited ; it is pro-
vided, that fuch prcfentments Jhall not be fo prejudicial to the
right heirs, or to them unto whom fuch advowfons ought to re-
vert after the death of any perfons ', for as often as any, having
no right, doth prefent during th^ time that fuch heirs are in
ward, or during the eflate s of tenants in dower, by the curtefy ^
or otherwife for term of life, or of years, or in tail, at the
next avoidance, when the heir is come to full age, or when af-
ter the death of the tenants before named the advowfon Jhall
revert unto the heir being of full age, he JJjall have fuch a5lion
by writ of advowfon pofjefj'ory, as the Inji anceflor of fuch an
heir jhould have had at the lajl avoidance happening in his time,
being of full age before his deatjj, or, before the deinlfe was
made for term nf life, or in fee tail, as before is faid. The

famfi,

fa»ujhall he ohferved in prefentmenis made unto churches ^ leing
iff the inheritance of wives^ what time they Jhall he under the
power of their hujhands, which mujl he aided by thisjlatute by
the remedy aforefaid, Alfo religious men^ as biJhopSy archdea^
conSy parfons of churches ^ and other fpiritual nien^ fhall be
aided by thisjiatute^ in cafe any having no right to prefent^ do
prefent unto churches belonging to prelacies^ fpiritual dignities,
parfonagesy or to houfes of religion^ what time fuch houfeSy
prelacies y fpiritual dignities ^ or parfonages be vacant, f. i .

Neither Jhall this a5i be jo largely underjlood^ that fuch per^
fans for whofe remedy this Jlatute was ordained^ fhall have the
recovery aforefaid^ furmifmg that guardians of heirs^ tenants
in tail, by the curtefy, tenants in dower , for term of life, or
for years, or hujhands, which faintly have defended pleas mo^
ved by them, or ctgainfi them ; becaufe the judgments given in
the king^s courts fhall not be adnulhd by this flatute, the judg-'
inent Jhall fiand in his force, until it be reverfed in the court
cf the king as erroneous, if error be found-, or by afftfe of dar-
rein prefentment, or by inquefi by a writ of quare impedit, if
it be paffed, or be adnulled by attaint, or certification, which
fhall be freely granted. And from henceforth one form of plead-'
ing Jhall he ohferved among Jujlices in writ of darrein prefent-
7nent and quare impedit, in this refpeSf, if the defendant al-
kdgeth plenarty of the church of his own prefentation, the plea
Jhall not fail by reafon of the plenarty ; fo that the writ be pur-
chafed within fix months, tho* he cannot recover his prefentation
within the fix months. And where it chanceth, that after the
death of the ancejlor of him that prefented his clerk unto a
churchy the fame advowfon is affigned in dower to any woman,
or to tenant by the curtefy, which do prefent, and after the
death of fuch tenants the very heir is dijlurbed to prefent when
the church is void-, it is provided, that from henceforth it Jhall
he in the eleSiion of the party dijlurhed, whether he will fue a
writ of quare impedit, or of darrein prefentment. The fame
Jhall be ohferved in advowfons demifed for term of life, or years,
or in fee tail, f. 2. **

And from henceforth in writs of quare impedit and darrein
prefentment, damages fhall be awarded, that is to wit, if the
time of fix months pafs by the dijiurbance xf any, fo that the
hijhop do confer to the church, and the very patron lofeth his
prefentation for that time \ damages fhall be awarded for two
pars value of the church. And if the fix months he not paffed,
but the prefentment be deraigned within the faid time, then
damages Jhall he awarded to the half year s value of the church, ■
And if the difiurher have not whereof he 7nay recompence da-
mages, in cafe where the hifmp conferreth by lapfe of time *, he

:~-c .'. . Jhall

i<3 Ztii)oVoton,

Jhall he punijhedhy tiuo years imprifonment ; {I7id If the advow-^
fon be deraigned within the half year ; yet the dljlurher Jhali
he pumj})ed by the imprifonment of half a year, f. 3.

Jnd from henceforth writs Jhall be granted for chapeUy
frebendsy vicarages^ hofpitals^ abbies^ priories^ and other houfes
which be of the advowfons of other men^ that have not been ufed
to be granted before. And when the par fon of any church is
Sjlurbed to demand tithes in the next parijh by a writ of in^
dicavit J the patron of the par fon fo dijlur bed Jhall have a writ
to demand the advoivfon of the tithes being in demand -^ and
when it is d^rmgned^ then J})all the plea pafs in the court
chriflian^ as far forth as it is deraigned in the king^s court,
f. 4.

S. I. That where any having no right to prefenty had.
prefsnted] By this it appeareth, that no plenarty doth put
the patron that hath title to prefent, out of polTclIion,
but only plenarty by prefentation : but plenarty by colla-
tion doth put him that had right to collate, out of pof-
feilion. i Inji, 344, 2 Inji, 356.

Had prefcnted to any church] This is intended of a church
prcfentativc. 2 Li/L 356.

IVhofe cUrk was admitted^ Albeit that admitted in its
proper fenfe is, whcji the bilhop upon examination findeth
him able ; yet here it is taken for inftitution : becaufe
that before inftitution, the rightful patron is not put out
of pofleflion. And it is to be obferved, that by the in-
ftitution the church, as to all common perfons, is full as
to the fpiritualty, that is, the cure of fouls, which the
bifhop by the aft of inftitution hath committed to him j
but before indu6lion, the parfon hath not the temporal-
ties belonging to his rc6lory. 2 Inji. 356.

But the church is not full againft the king before in-
duction ; becaufe in the king's cafe plenarty is to be in-
tended of a full and complcat plenarty, as well to the
temporalties as to the fpiritualty, 2 hjl. 356.

And if there be au ufurpation upon the king, by a com-
plcat plenarty J the king cannot prefent to the church,
before he hath removed the incumbent by quare impedit j
left contentions might grow in the church between the
feveral claimers of the benefice, to the difturbance or hin-
drance of divine fervice j and this was by the common
law. 2 IrijL 357.

But in that cafe, the king is only put out of pofleftion
as to the bringing of an adion ; but the inheritance of
the advowfon is not devcftcd out of him. 2 Irtji. 357.

4. Ht

He that was very patron could not recover Ms advowfin]
At the common law, if a ftranger had prcfcnted his cleric,
and he had been admitted and inftituted to a church,
whereof any fubject had been lawfiil patron ; the patron
had no other remedy to recover his advowfon, but a writ
of right of advowfon, wherein the incumbent was not to
be removed. And fo it was at the common law, if an
ufurpation had been had upon an in£antor feme covert, ha-
ving an advowfon by defcent, or upon tenant for life, or the
like ; the infant, feme covert, and he in the reverfion
were driven to their writ of right of advowfon j for at the
common law, if the church were once full, the incum-
bent could not be removed, and plenarty generally was 2
good plea in a quare impedit or aflife of darrein prefent-
ment, and the reafon of this was, to the intent that the
incumbent might quietly intend and apply himfelf to his
fpiritual charge ; and the law did intend, that the biflic^
that had cure of fouls within his diocefe, would admit and
jnftitute an able man for the difcharge of the fpiritual
fund^ion, and that the bifhop would do right to every pa-
tron within his diocefe. But at the common law, if any
had ufurped upon the king, and his prefentce had been
admitted inftituted and indudled (for without indu£iion
the church had not been full againft the king), the king
might have removed him by quare impedit, and have
been reftored to his prefentation 3 for therein he hath a
prerogative, that nullum tempus occurrit regi ; but he could
not prefent, for the plenarty barred him of that, neither
could he remove him any way but by aftion, to the
end the church might be the more quiet in the mean
time ; neither did the king recover damages in his quare
impedit at the common iav,\ But this ftatute hath al-
tered the common law in all thefe cafes, i Inji, 344.
2 InJi. 356.

But only by a writ^^f right'] This is to be underftood,
where the patron had a fee fimple, and that he or fome of
his anceftors had prefented : but if the patron claimed
the fee fimple of the advowfon by purchafe, and had ne-
ver prefented; there he could have no writ of right of ad-
vowfon, but before this ftatute had loft the advov/fon.
And likewife if tenant in tail, or tenant for Vii^ had fuf-
itTtd any ufurpation ; they had been rernedilefs by the
common law, bccaufe they eould have no writ of right.
2 InJl. 357.

JVhich

32 :^lyl)oMott:

Which Jhould he tried by battel] This is an ancient tml
in our law, which the defendant might chufe in divers
cafes, as efpecially here in a writ of right.

Or by great afftfe'] This, in general, is a writ that lieT,
where any man is put out of his lands or tenements, or
of any profit to be taken in a certain place j and fo, dif-
feifed of his freehold. Terms of the L,

It Is provided, that fuch prefenifnents] The words before
going, to which thefe have reference, extend only to heirs
in ward ; but thefe words are to be expounded of fuch
prefentments as are within the fame mifchief : and there-
fore this a£l extends to heirs of advowfons, tho' they be
out of ward. 2 InJI. 257*

Shall not be fo prejudicial to the right heirs'] This aft re-
licveth only infants that have advowfons by defcent ; fot
if an infant hath an advowfon by purchafe, he remaineth
at the common law, and is not remedied by this a£l, 2

J^f' 357-

And this being a law that fupprefleth wrong, and ad-
vanceth right, doth bind the king, tho' he be not named
in the a6t. 2 Inji, 358.

Or to them unto whom fuch advowfons ought to revert after
the death of any perfons] That is, to thofe heirs that have
the reverfion of the advowfon by defcent ; but the heir of
him in the remainder is not within the purview of this
aa. 2/«/?. 358.

j^fter the death of any perfons] That is, of tenant by the
curtefy, tenant in dower, or otherwife for life, or for
years, or in fee tail. 2 In/l, 358.

The fame foallhe obfervedln prefentments made unto churches
being of the Inheritance of wives] But if a feme covert hath
an advowfon by purchafe, and not by inheritance j fhe
is not within the remedy of this atSt, 2 Infi, 359.

Alfo religious men^ as bljhops, archdeacons^ parfons of churches^
and other fplrltual men Jhall be aided by this Jiatute] By this
prefentation and ufurpation in time of vacation, albeit the
freehold and inheritance is in abeyance ; yet the ufurper
gaineth a fee fmiple in the advowfon : like as if one en-
treth into lands during the vacation, and claimeth the
fame as his inheritance, he gaineth an inheritance by
wrong. But yet as the dying feifcd of lands in that cafe
during the vacation fhall not take away the entry of the

fuccefibr.

:aDt)OtbfOtt» 33

fucceflbr, no more fhall the ufurpatlon during the vacation
take away the right of prefentation when the church be-
comes void ; and if he be difturbed he fhall have his quare
impedit. 2 /«/?. 359.

S. 2. The plea Jhall not fall by reafon of the plenartyl
By the common law, plenarty before the writ of quare
impedit brought was a good plea, but plenarty hanging
the writ was no bar at the common law ; but now by this
flatute, plenarty is no plea in a quare impedit or darrein
prefentment, unlefs it be by the fpace of fix months be-
fore the quare impedit brought; for if the rightful patron
bring his action within the fix months, it is maintainable
by this ftatute : which fhort purview doth remedy many
mifchiefs at the common law. 2 Inji. 360.

But this doth not bind the king ; for plenarty by the
fpace of fix months is no bar againft him : for he may
have his quare impedit when he will 5 and that, whether
he claimeth in the right of his crown, or in the right of
a fubjedl. 2 InJi, 360.

So that the writ be pur chafed within fix months'] And be-
caufe this computation doth concern the church, it is
great reafon that it fhall be made according to the com-
putation of the church, which churchmen do beft know :
and therefore the computation fhall be made according to
the kalendar for one half year ; and not accounting twen-
ty eight days to the month. 2 InJi. 360.

The very heir is diflurbedto prefent] Hereby the heir in
reverfion is provided for, and not the ieflbr himfelf. And
albeit tenant by curtefy, tenant in dower, tenant for
life, or tenant in tail prefented laft; yet the heir, to whom
the reverfion falleth in pofleflion, (hall have by this branch
an affife of darrein prefentment, albeit the heir or his
anceftor did not immediately prefent before. 2 Infl. 361.

S. 3. Damages Jhtdl he awarded] Before the making of
this ad:, the plaintiff in a quare impedit recovered no da-
mages, left any profit the patron fhould take fhould favour
of fimony, which the common law did deteft. And this
is the caufe that the king in a quare impedit recovereth
no damages \ becaufe he could recover none by the com-
mon Jaw, and the king is not within the purview of this
claufe. 2 Inft. 361.

And forafmuch as no damages were in a quare impedit
at the common law, and this a6l after the ftatute of Glo-
cefter (which gave cofts in certain cafes) giveth dama9;e$

Vol. I. D onfys

34 :^Dt)0tbf0tt»

only ; therefore in this cafe the plaintiiF fhall recover nO
cofts. 2 Inft, 362.

But in the cafe oiHolt and Holland^ M\ 33 C". 2. where
the queftion was, whether the plaintiff in a quare impe-
dit fhould have cofts, it was ruled, that it it is a quare
impedit by the common Jaw, there can be no cofts ; if by
ftatute, there muft be cofts : and if the church is full of
the defendant by inftitution, then it is a quare impedit
within this ftatute of the 13 Ed. i. c. 5, if not, it is at
the common law. Zkm, 25.

^0 that the hijhop do confer to the church'] Albeit the bifhop
hath not collated, yet if he hath the right of collation,
the plaintiff fhall, if he will, recover double damages
within the meaning of this z6k. But if, notwithftanding
the bifhop's title to collate, the church remaineth void,
the plaintiff may recover his prefentation ; and if he doth,
the damages fhall be only for half a year : in which cafe
he hath his election, either to lofe his prefentation, and
have double damages ; or to have his prefentation with
fmgle damages. 2 Irji. 362.

For two years value of the church] And this fhall be ac-
counted according to the true value, as the fame may be
letten. 2 Inft, 362.

S . 4. Shall have a writ to demand the advowfon of the tithes']
By the common law, if the incumbent of one patron de-
manded tithes againft the incumbent of another patron,
the writ of indicavit did lie ; for that the right of the pa-
tronage fhould come in queftion : for by the prefentation
of the patron, his incumbent is to have the tithes, which
are the profits of the church. And in a writ of right of
advowfon, the patron fhall allcdge the efplees (or profits)
in his incumbent in taking of the great and fmall tithes;
and therefore if the right of tithes came in queftion, that
concerned the right of advowfon, the writ of indicavit
did He, 2 ht/l. 363.

The mifchief before this ftatute was, that feeing the
light of tithes could not be tried between the two perfons
after the indicavit granted, the perfon prohibited was
without remedy for trial of the right of tithes; and there-
fore this a(St doth give the patron, whofe clerk is prohi-
bited, a writ of right of advowfon of tithes ; and if the
ilo-ht be tried for the demandant, the caufe fhall be re-
jiujvcd into the court chriftian. 2 /«/?. 363.

But

:aDt)on)fott. 35

But what If the patron hath hut an eftate for life^ fo as
he cannot have this writ of right of advowfon ; what re-
medy fhall be had for trial of the right of tithes in this
cafe? It feemeth, that by conftrudion of this fta-
tute, the defendant in the indlcaVit, appearing upon the
attachment, {hall plead to the right of the tithes in the
king's court : or otherwife he fhall be without remedy.
2 Injl, 364.

By the 13 Ed. i. ft. i. c. 30. ^ffije^ of darrein prefent-*
ment^ and inquifitiom of quare impedit foall be determined in
their own Jhire^ before one jujlice of the bench ^ and one knight^
at a day and place certain in the bench affigned^ whether the
defendant confent or not \ a?zd there the judgment Jhall be given
immediately.

The reafon of making this llatute was in refpe£l of the
danger of lapfe ; and therefore in favour of the patrons it
is provided, that the juftices of nifi prius (hall have power
to give judgment in thefe two aftions. 2 Inji. 424.

And altho' the words be, that there the judgment Jhall be
given immediately \ yet if the juftices of nifi prius do not
give judgment, upon the return of the poftea judgrcent
may be given by the court to which the return is made :
for by thefe words the higher court is not reftrained. 2
InJl, 424.

And this a6l, giving to the juftices of nifi prius power
to give judgment, they have thereby a power inclufive, as
incident thereunto, given them to award execution, that
is, a writ to the biftiop. But that writ is not returnable :
But after the record be returned into the common bench,
if the former writ be not executed, that court may grant
a writ of ficut alias, returnable into that court. 2 /«/?.
424.

By the 34 Ed. i^^ ft. i. (de conjun6lim feofFatis) :
Forafmuch as pleas in court fpiritual heretofore had many times
unmeet delays^ for that our writ that is called indicavit was
many times brought before the judges ^ of fuch matters when
they were begun^ and thereupon our chief jujiices could not
proceed lawfully nor in due manner to award a writ of confuU
tation upon fuch manner of procefs ; it is agreed^ that fuch a
writ of indicavit Jhall not be granted from henceforth to any^
before the matter hanging in the fpiritual court between the
parties be recorded^ and that our chancellor Jhall be certified
thereof by the fight and infpeSiion of the libel.

D 2 By

36 :Xtll)OtbfOlt.

By the ftatutc of articuli cleri, 9 Ed. 2. ft. I. c. 2. tf

debate do ar'ije upon the right of tithes^ having its original fre^m
the right of patronage^ and the quantity of the fame tithes do
come unto the fourth part ef the goods of the church ; the kings
prohibition jhall hold placCy if the caufe come before a judge
fpiritual.

By the 12 Ed. 2. c. 4. As to the inquefls to he taken upon
writs of quare impedit^ it Jhall be done as is contained in the
Jiatute of the 13 Ed. i. ft. i. c. 30. And the jujlices Jhall
have power to record tonfuits and defaults in the country^ and
to give judgment thereupon^ as they do in the hench^ and there
to report that which they have done^ and there to he inrolled.
And if it happen that the jufiice or juflices that Jhall be ajfigned
to take fuch inquefls in the country do not come^ or if they come
into the country at the day affigned^ yet the parties and perfons
of fuch inquejis Jhall keep their day in the bench.

By the 14 Ed. 3. ft. i. c. 16. The juflices of affife and
nifi prius Jhall have power to give judgment in the country^ in
plea of darrein prefentment and quare impcdit.

By the i Mar. k^. 2. c. 5. Whereas by the Jiatute of
the 32 H. 8, c, 2. in fame cafes pre fcription is limited to fixty
yearsy and in other cafes to fifty years^ which being not dif
proved Jhall after trial had be a bar for ever to all turits in
fuch cafes ; and a doubt hath been whether the fame Jhall ex-
tend to a writ of right of a chow f on y a quare irhpedit^ jure pa-
tronatusy or affife of darrein prefentment^ where the clawiant
cannot lay the efplecSy feifm^ or prefentment in him^ his ancef-
tors, or prcdecefforsy or in him or them bv whom they claim^
within fixty years next before : it is ena^ed^ that the fame
Jhall not extend to any writ of right of advowfon^ quare im-
pedit, or ajfife of darrein prej'entmcnt^ nor jus patronatus j but
that all perfons may maintain and purfue the fame as they
might have done before the making of the faid a£i.

It hath been gciK^rally received for law, that if one who
is not a rightful patron doth in due form of law, without
any corrupt contra6t, prefent a clerk to a prefcntative li-
ving, in time of peace (when the courts are open, and
conlequently the rightful patron is at liberty to bring his
cjuarc impedit within the fix months if he pleafeth), and
fuch prefcntation taketh cft'ecSl, and inftitution and ia-
dudlion be had thereupon, and the clerk remains fix

months

:^Dt)OU)fOtt. 37

months in pofTeflion before the true patron commenceth
his fuit ; he thereby becomes a lawful incumbent, and
may eiijoy the living during his life. And altho* for-
merly the true patron might, on the next avoidance, re-
cover his ancient right in many cafe?, yet he could not
do it in all ; but in fome was for ever barred of any re-
inedy. But now by the ftatute of the 7 An. c. 18. For^
/ifmuch as the pleading in a quare i7npedit is found very diffi-
cult^ whereby many patrons are either defeated of their rights
of prefentation^ or put to great charge and trouble to recover
their right ; // is therefore ena^ed^ that no ufurpation upon any
avoidance in any churchy vicarage^ or other ecclefiaflical pro-
jnotion^ jhall difplace the e/late or inter ejl of any per [on intitled
to the advowfon or patronage thereof^ or turn it to a right \
hut he that would have had a right if no ufurpation had been^
may prefent or maintain his quare impedit upon the next or any
ether avoidance [if dijiurbed) notwithjianditig fuch ufurpation.
Watf. c. 7.

By the 20 G. 2. C. 52. Ml titles and fuits and anions of
quare impedit^ are excepted out of the general pardon
granted by that acl.

By the 24 G. 2. c. 48. intitled. An a£l for the abbre-
\'iation of Michaelmas term : — Whereas before the making
of this aH^ all writs of fummons to warrant againfl the vouch--
ers upon common recoveries had^ in writs of entry ^ and writs
of right of advowfon^ were made for fiv£ returns inclufive ;
for the more fpeedy perfecting of fuch recovery^ it is ena^ed^
that every jiich writ of fummons^ to warrant upon the appear-
ancc of the tenant to every fuch writ of entry and writ of right
of advowfon^ Jhall be abridged to four returns inclufive, f, 8.

An aiTife of darrein prefentment no man can have,
without alledging a ^prefentment in his own time. 2 Infl,

355-

A writ of right of advowfon a purchafer cannot have,

without alledging a prefentation in his own time : But a
quare impedit a purchafer may have, and alledge a pre-
fentation in him from whom he purchafed the fame ; and
to that end was the quare impedit provided, for remedy
of fuch purchafers. 2 Inf. 355.

And feeing the writ of quare Impedit doth lie for all

perfons who may maintain an aflife of darrein prefentment,

it feems to be the fafeft courfe to bring that writ upon

any diflurbance : But ^ho* it be faid, that a man may in

U 3 many

38 :3t)l30tbfOtt»

many cafes have either writ, yet in no cafe can he main-
tain both ; therefore if the plaintiff hath brought a quare
impedit upon a difturbance, and hanging the fame, doth
hnng an affife of darrein prefentment againft the fame de-
fendants, the defendants may in pleading {hew this fpe-
cial matter in certain, and aver that both writs are upon
the fame avoidance, and the writ of darrein prefentment
will be abated.. And if an alTife of darrein prefentment
be firft brought, and after that a quare impedit for the
fame avoidance ; the aifife fhall abate, and the quare im-
pedit fliall ftand ; for the quare impedit is of an higher
nature than the aflife. /i^^//! c. 22.

When by the judgment in a quare impedit the inherit-
ance, eftate, or intereft of the patron that prefented is to
be devefted, fuch patron ought to be named in the writ ;
becaufe the patronage fhould elfe be recovered againll him
who had nothing in the patronage, namely, the clerk ;
and it is not reafon that he who is patron fhould be
difpolTefTed, and oufted of his patronage, when he is a
ftranger and not party to the a6lion, efpecially when he
may he made a party, j^atf, c. 24.

And not only the patron, but alfo his incumbent, mull
be named in the writ ; for if an incumbent at the time of
purchafing the original writ be admitted and inftituted at
the prefentation of any one, altho' the ordinary and his
patron be named, yet fuch incumbent that is not men-
tioned fhall not be removed, but only the patronage re-
covered. Watf. c. 24.

And in fome cafes it is neceffary alfo to name the or-
dinary in the writ ; for if the patron be diflurbed in pre-
fenting, and the church be not filled, the ordinary is to
be named in the writ, or elfe he will collate hanging the
fuit by lapfe ; whereas if he be named, he mufl either
difclaim, and then judgment may be had againfl him, or
elfe he mufl plead, and fo allow himfelf to be a diflurber,
and being made party to the a£lion, he is barred of the
advantage of lapfe. If^atf. c. 24.

Quare impedit is a poflcfTory acSlion, and therefore not
to be maintained without a pofTcfTion 3 for which reafon
the plaintiff mufl always declare upon a prefentation made
by himfelf or his anceflor, or one whofe eftate he bath,
or by the grantee of the next avoidance, or by his lefTee
for life, or for years. 3 SalL 293.

But yet the want thereof may be cured by verdidt.
Sir, 1006.

In all writs of quare impedit, the teft of the writ
ought to be made the very day it is taken out, and not
at any time before, and this by reafon of the lapfe.
M^atf, c. 23:

The procefs in quare impedit are fummOns, attachment,
and diftrefs peremptory. And the fherifF muft fummon
the defendant by good fummoners, and return their names
upon the original writ, and not return common fummon-
ers, as John Doe and Richard Roe j for a writ of deceit
Jieth if the fummons were not made indeed. But if the
king be plaintiff, and the defendant be not fummoned,
nor attached, nor diftrained, and the king hath judgment
by default, no writ of deceit lieth. IVatf. c. 26.

By a conftitution of archbifhop Langton, If two are
prefented to one and the fame churchy the cujlody thereof Jhall he
given to neither of them^ pending the fuit. And if the right
of collating to fuch church jhall lapfe to the hifhop ; in fuch cafe^
leji either of the parties jhould he prejudiced hy the hijhop^s col-
lation^ who Jhall afterzvards carry his caufe as to the right of
patronage^ it is decreed, that the hifhop Jhall collate neither of
thofe who have been prefented to the fame church for that turn^
unlefs hy confent of both the patrons. Lind. 215.

And by the ftatute of the 3 Ed. i. c. 28. None of the
hngs clerks^ nor of any jujlicer^ fl)all receive the prefentment
cf any churchy for the which any plea or debate is in the king's
court y without fpecial licence of the king ; and that the king
forhiddeth, upon pain to lofe the churchy and his fervice.

The mifchief before which adt was, that pending a fuit
for a church \n the king's court, the one party or the
other would prefent the chaplain of the king, or of fome
of the judges, the more to countenance the one party,
and difcourage the other j and at that time the mifchief
was greater, becaufe if the clerk of an ufurper was in-
ilituted, the true patron had no remedy, but by a writ
of right of advowfon. 2 Injl. 212.

And by the ftatute of the 13 Ed. 1, ft. i. c. 49. it is
enabled as followeth : The chancellor, ireafurer, juJUces, nor
any of the king's council-, no clerk of the chancery, nor of the
txchet^uer, nor of any juflice or other offcer, nor any of the
king's houfe, clerk nor lay, jhall not receive any church nor
advowfon of a church, land nor tenement in fee, hy gift nor by
furchafe, nor to farm, nor hy champerty, nor otherwije, fo long
as the thing is in plea before us or before any of our officers \
jior Jhall take no reward thereof And he that doth contrary to
ibis a^^ either hlnflf or by another, or make any bargain,

D ^ j^^all

40 :^t)DOMOtt*

Jhallbe punijbed at the king's fleafurey as well he that pur*
chafeth^ as he that doth fell.

In affife of darrein prefentment, fix of the jury ought
to have the view of the church, to the intent that they
may put the plaintiff into pofleflion if he do recover,
TVatf. c. 16.

Judgment being given, the efFe£ls thereof are, that in
an aflife of darrein prefentment, he that prevails Ihall re-
cover the prefentment, and fix of the jury who had view
of the church may put the plaintiff into pofTeflion if he doth
recover. In a quare impedit, he that recovers, recovers
the advowfon as well as the prefentment. But in both
writs, by the very judgment abfolutely given there is this
effect of the judgment, that the incumbent that was in a
church when the writ was brought, if named in the writ,
is actually removed ; but if not named in the writ, he
fhall never be removed. TFatf, c. 28.

Another effe6l of a judgment given in a quare impedit
or darrein prefentment is, that he for whom the judgment
is given fhall recover as well his damages, as his prefent-
ment and advowfon, by the aforefaid ftatute of the 13
Ed. I. fl. I. c. 5. IVaif, c. 28.

And the recoverer fhall have a writ to the bifhop to
admit his clerk. TVatf. c. 28.

By a conflitution of archbifhop Boniface, If when m
man hath recovered his right of patronage in the kin^s courts
the king doth write to the hifiop or to any other who hath power
to grant injlitution^ that he ndinit the clerk prefented by fuch
perfon having jo recovered as aforefaid \ the clerk prefented
fhall he freely admitted^ if the benefice be vacant^ and there he
no other canonical impediment^ that the patron be not injured.
But if the benefice be not vacant^ the prelate may excufe him-*
felf to the king or his jujViccs^ by anfwering^ that becaufe the
benefice is not vacant^ he cannot therefore fulfill the king's man^
date. But the patron may-, if he pleajMi^ prefent again the
perfon who is in pofjeffion \ that fo tlye right of him who hath
fo recovered may he declared for the future.

Or to any other who hath power to grant injlltution'] As,
the dean, or archdeacon, or other fuch like j who may
have fuch power by cuflom, prefcription, or fpccial pri-
vilege. Lind. 2.1'j.

Shall be freely adjnitted] That is, without making any
inquifition of the right of patronage ; becaufe it is enough,
that the king by his letters tcflificth that he hath obtained
the right of patronage in his court. Lind, 217.

Tbff

The king doth write to the htjhop'] That is, by writ ifTu-
ing out of his court. And if the biftiop, upon receipt of
the writ, doth not admit the clerk ; another writ fhall
iflue, which is called the writ of quare non admifit. Watf,
c. 28.

And it is faid, the very judgment in a quare impedit
is an amotion of the incumbent, though he continue flill
the pofTeffion de fa£to ; and if the plaintiff be inftituted
upon a writ to the bi/hop, the defendant cannot appeal ;
and if he doth, a prohibition lieth : becaufe in this cafe
the bifliop adts as the king's minifter, and not as a judge.
3 Salk. 294.

Form of the grant of a perpetual advowfon.

HIS indenture made the day of in the

year of the reign of our f over eign lord
of Great Britain France and Ireland king^ defender of the

faith ^ and fo forth ^ and in the year of our lord Between

A. B. of ■ in the county of efquire^ of the one part ^

and C. D. of ' in the county of gentleman^

of the other part -^ IVitneffcth^ that the faid A. ^. for and in

lonfideration of the fum of of lawful money of Great

Britain^ to hifn in hand paid at or before the fealing and deli-
very hereof the receipt whereof he the faid A. B. doth hereby
acknowledge^ and himfelf therewith fully fatisfied and paidy
and thereof and of every part thereof doth hereby acquit releafe
and for ever dtf charge the faid CD. his heirs executors and
adminifiraiors and every of them by thefe prefents^ And alfo for
divers other good caufes and valuable conjiderations him the faid
A. B. thereunto moving^ he the faid A, B. Hath given and
granted^ and by thefe prefents doth fully freely and abfolutely
give and grant ^ unto the faid C. D. his heirs and affigns for
ever^ All that the advowfon of the reSiory or parfonage ofY..
in the county of ^d all the eflate right title interejl pro-
perty claim and demand what fo ever of him the faid K, B. of in
and to the faid advowfon^ and to the donation prefentation and
free difpofition and right of patronage of the faid church : To
have and to hold the faid advowfon and premiffes aforefaid
hereby given and granted^ or meant jnentioned or intended to he
hereby given and granted^ with the appurtenances^ unto him
the faid CD. his heirs and ajfigns^ to and for the fole and
cnly proper ufe and behoof of th; faid CD. his heirs and
ajfigns for ever^ and to and for w o.her ufe intent or purpofe
whatfoever. And the faid A. B ' //; granted^ and by thefe
prefents dcth grant fir himfelf - his heirSy that they will

VJ-arrant

42 ^titJdMott.

warrant to the f aid CD. and bis heirs the aforefaid advowfon
cf the faid church and premijjes aforefaid and every ofthem^
with the appurtenances^ ttnto him the faid CD. his heirs and
affigns^ againfl him the faid A, B. hii heirs and affignSy and
againfl all perfons whatfoever claiming or to claim the fame ^ or
any right or title thereunto^ by from or under him them or any
cfthem. And the faid K, B. doth hereby for himfelfhis heirs
executors and adminiflrators^ covenant promife grant and agree
to and with the faid CD. his heirs executors adminiftrators
end ajftgns^ and to and with every of them by thefe prefents^ in
manner and form following \ that is to fay ^ that he the faid
A. B. is at the time of the fealing and delivery hereof and
-until the execution of thefe prefents^ the true right and undoubt^
ed patron of the faid church ofE, and of the reSiory aforefaid -,
and hath good rights full power ^ and lawful and abjolute au-
thority^ to grant and convey the fame to the faid C, D. his
heirs and afftgns in manner and form as aforefaid : And that it
fhall and may be lawful to and for the faid C .D. his heirs and
afftgns^ from time to time^ and at all times for ever hereafter^
whenever the faid church Jhall or may^ by the deaths refigna^
tiony deprivation, cejjion, or change of all or any the re£fors
or incumbents thereof or otherwife, happen to become vacant^
To prefent fome other honefl learned and well qualified clerk, to
fucceed in the faid church as the reSfor or parfon thereof and
to do all other aSls which to the office of patron of the faid rec-
tory doth of right belong or appertain, as fully and amply as he
the faid A. B. his heirs or affigns might or could do, if thefe
prefents had not been made, without any let, fuit, hindrance^
molefiation, interruption or difiurbance whatfoever of or from
him the faid A. B. his heirs or affigns, or any other claiming
under him, them, or any of them : And that he the faid A. B.
his heirs and affigns, and all other perfons whatfoever having
or claiming any right or title to the faid advowfon under him or
them, Jhall and will from time to time, and at all times here-
after, upon the reafonable requeft, and, at the proper cofl and
charges of the faid CD. his heirs and affigns, in the laWy
make, do, levy, execute and fufifer all and every fuch further
and other lawful and reafonable a5i and a£ls, grant and grant Sy
conveyances and affur apices in the law whatfoever, far the far-
ther, better, and inore perfeSi and abfolute granting, convey-
ing^ and affuring of the faid advowfon of the faid church to the
faid CD. his heirs and affigns, be it by grant, confirmation,
fine, or recovery, or in any other manner, as by the faid CD.
his heirs and afftgns, or his or their comfel learned in the law,
fnall he rcafonably devifcd, advfed or-' required: All which

fur.-K

further and other ajfurance and ajfurances^ fo to he made of the
faid premtffesy Jhallhe and enure, and Jhall be adjudged deemed
and taken to be and enure, and are hereby declared to be and
enure, to the fole only and proper ufe of the f aid CD. his
heirs and ajfigns for ever, and to and for no other ufe intent or
purpofe whatfoever. In witnefs whereof the parties abovefaid
to thefe prefents have interchangeably fet their hands andfeals^
the day and year firjl above written.

Grant of a next avoidance.

THIS indenture made the' day of in the year of
our lord Between A. B. of • in the county

of '"'•^gentleman, of the one part, and C. D. of in the

county of gentleman, of the other part, witneffeth, that
the f aid A. h, for divers good caufes and confiderations him the
faid A. B. thereunto moving, hath given and granted and doth
by thefe prefents give and grant unto the faid CD. his execu-
tors adminijirators andajjigns, the firjl and next donation nomi"
nation prefentation and free difpojition of the re£iory or parfon-
age of the church ofY., in the county of Y, And that it jhall
and may be lawful to and for the faid CD. his executors ad-
minijirators and ajjigns, zvhenfoever, howfoever, and by what-
foever means, ly death refignation privation cejjion permutation
or by any other ways or means whatfoever the aforefaid church
of E. Jhall firji or next happen to be void, to prefent any one
fitting hone/i and learned man thereunto-, and to do all other
things which belong to the office and duty of a patron ; and to doy
for the fulfilling of fuch firjl and next vacation or avoidance
only, as fully and amply, as he the faid A. B. in that behalf
might do if thefe prefents had not been made. And the faid
A. B. doth hereby, for himfelf his heirs executors aclminiftra-
iors and ajfigns, covenant promife and grant to and with the
faid C D. his executors adminijirators and ajfigns, that he
the faid A. B. hath* full power and lawful authority to give
grant and difpofe of the next prefentation of and in the afore-
faid rectory and church of Y.. to the faid CD. his executors
adminijirators and ajfigns as aforefaid. And further that he
the faid A. B. his heirs or ajfigns Jhall and will from time to
time and at all times hereafter, at the reafonahle requeji and cofis
and charges of him the faid CD. his executors adminijirators
and afftgns, make do and execute, or cauje to be made done and
executed, fuch further and other reafonahle a5l and a£is, thing
and things, conveyance and affurance in the law whatfoever,
for the further better and more abfolute pving and granting of

the

44 :^Di)oMon»

the Jhid mxt prefentatlon of in and to the of ore/aid reSfory and
church o/E, unto him the f aid CD. his executors adminijlra-
tors and ajftgnsy as by him the f aid Q. D. his executors admi^
nijlrators and ajfignsy or his or their counfel learned in the law^
jhall he reafonahly devifed or advifed and required. In witnefs
whereof the parties to thefe prefents have hereunto interchange-
ably fet their hands andfeals the day and year firjl abovewrit"

Agnus dei. See PopCtP*

Alienation of glebe lands. See ®Iebe laitUSf.

Alimony. See ^atnaffC

Alms cheft. See C&UtCD*

^altarage*

ALTARAGE comprehends not only the offerings
made upon the altar ; but alfo all the profit which
accrues to the prieft by reafon of th€ altar, obventio altaris.
God. Repertor. Canon. 339.

Out of thefe, the religious afligned a portion to the
vicar ; and fometimes the whole altarage was allotted
to him by the endowment. Id, Introd. 51.

Since the reformation, divers difputes have arifeir^
what dues were comprehended under the title of altara-
gium j which were thus determined in a trial in the exche-
quer, M. 21 Eliz. viz : Upon hearing of the matter,
between Ralph Turner^ vicar of Weft Haddon, and Ed-
ward Andrews ; it is ordered, that the faid vicar fhall
have by reafon of the words altaragiwn cum manfo cotnpe-
tenti contained in the compofition of the profits afligned
for the vicar's maintenance, all fuch things as he ought
to have by thefe words according to the definition thereof
piade by the reverend father in god John bifhop of Lon-
don, upon conference with the civilians David Hcwes
judge of the admiralty, Bartholomew Clerk dean of the
arches, John Gibfon, Henry Joanfe, Lawrence Hewes,
and Edward Stanhope, all do£lors of the civil law i that
J5 to fay, by altaragium^ tithes of wool, lambs, colts,
calves, pigs, goflings, chickens, butter, cheefe, hemp,
flax, honey, fruits, herbs, and fuch other fmall tithes^
with offerings that fhall be due within the parifh of VVsft

Haddon.

^uatage* 45

Haddon. And the like was, for Norton in Northampton*
fhire, in the fame court within two or three years before,
upon hearing, ordered in like manner. Ken, Far, Aat.
GlofT. God. 339.

Yet it feiems to be certain, that the religious when thfiy
allotted the altarage in part or in whole to the vicar or
capellane, did mean only the cuftomary and voluntary
offerings at the altar, for fome divine office or fervice of
theprieft, and not any fhare of the ftanding tithes, whe-
ther praedial or mixt. Ken, Par, Ant, GloiF.

And in the cafe of Franklyn and the mafter and brethren
of St, Crofs^ T, 1 72 1 ; it was decreed, that where altara*
gium is mentioned in old endowments, and fupported by
ufage, it will extend to fmall tithes, l)ut not otherwife.
Bunb, 79.

It is moft probable, that the greateft annual re\renue
by altars^ if not by altarages^ in any one church within
this r£alm, was in that of St. Paul, London. For when
the chantries were granted to king Hen. 8. whereof there
were 47 belonging to St. Paul's, there were in the fame
church at that time no lefs than 14 feveral altars. And
although they were but chantry priefts that officiated at
them, and had their annual falaries on that account,
diftin6t from altarages in the proper fenfe of oblations ;
yet In regard thefe annual profits accrued by their fervice
at the altar, they may not improperly be termed penfton
sdtaragesy though not oblation altarages, God. Introdn 5 1'.

Anabaptifts. See DfffentetlS*

ANA B A T A, h" a cope or facerdotal veftment, to
cover the back and fhoulders of the prieft. Ken,
Par, Ant, Gloff. v, Anabau,

ANNALS, were mafles faid in the romifti church,
for the (pace of a year, or for any other time, either
for the foul of a perfon deceafed, or for the benefit of a
perfon living, or for both, j^ylif* Parerg, 190,

ANNIVERSARIES, were offices celebrated, not on-
ly once at the end of the year, as obits were ; but
were to be performed every day throughout the year, for
the foul of the deceafed. Jyl, Parerg. 190.

AFTER conteflation of fuit, and the oath of calumny
taken by both the litigants, the next thing which
follows in courfe of pradlice, if a fuit proceeds, is the
demanding and giving in of perfonal anfwers. Which
are made in writing, to the feveral articles or pofitions of
a libel, or to any other judicial matter exhibited in court.

And thefe anfwers ought to be made, in very clear and
certain terms ; and upon the oath alfo of the perfon that
exhibits them, unlefs it be in a criminal caufe, wherein
no one is bound to accufe himfelf.

For perfonal anfwers are therefore provided in law,
that by the help of them, the adverfe party may be re-
lieved in the matter of proof. And if thcfe anfwers are
not clear, full, and certain ; they are deemed and taken
in law as not given at all : and upon a motion made,
the judge ought, by an interlocution, to enjoin new an-
fwers : it being the fame thing to give no anfwer at all,
as to give a general and infufficient anfwer.

CUniVDtt* 47

A perfonal anfwer therefore ought to have thefe three
qualities in it ; Firft, it ought to be pertinent to the mat-
ter in hand. Secondly, it ought to be abfolute and un-
conditional. And, thirdly, it ought to be clear and cer-
tain. Jyl. Par erg, 65.

atltipjDttat*

THE antiphonar, antiphonarium^ from avn contra^ and
^uvn fonus^ is that book which containeth the invi-
tatories, refponfories, verfes, collefts, and whatever is
faid or fung in the quire, called the feven hours, or bre-
viary. Lind, 251.

I. APPARITORS (fo called from that principal ^^^

JLX. branch of their office, which confifteth in fum-
moning pejrfons to appear) are officers appointed to exe-
cute the proper orders and decrees of the court. JyL
Par erg, 67.

2. And thefe are chofen by the ecclefiaftical judges j^^^.^^^
refpe(Slively ; who may fufpend them for mifbehaviour,

but may not remove them at difcretion, as they moft of
them hold their office by patent.

3. The proper bufinefs and employment of an appari- j^is office aji4
tor is, to attend in court, to receive fuch commands as duty.

the judge fhall pleafe to ifTue forth ; to convene and cite
the defendants into court; to admonifli or cite the parties
in the production of witnefTes, and the like ^ and to make
due return of the procefs by him executed, jiyl, Parerg^
68.

More particularly, his conduct is regulated by the fol-
lowing canons and conftitutions :

(i.) Otho. We do ordain, that from henceforth letters
citatory in caufes ecclefiaftical fhall not be fent by thofe
who obtain them, nor by their meflengers ; but the judge
fhall fend them by his own faithful meiTengcr, at the mo-
derate expence of the perfon fuing them out ; or at leaft
the citation (hall be directed to the dean of the deanry
2 where

48 :^ppatito^

where the party to be cited dwelleth, who at the judge*s
commandment fhall faithfully execute the fame by him*
felf or his certain and trufty meflenger. Athon. 63.

7^ the dean of the deanry'] That is, the rural dean, who
had then fome office and jurifdi(Sl:Ion.

(2.) Boniface. We being defirous to apply a remedy
againlV thofe grievances and excelTes, which the beadles
or apparitors of archdeacons and deans occafion to our
fubjed:s, do ordain that when in order to execute their
mandates or to do other things neceifary, they come to
tlie houfes of re(5tors vicars or curates, or of other priefts
clerks or religious, they fhall demand nothing of them by
way of procuration or other duty ; but accepting with
thanks what fhall be fet before them, they fhall be con-
tent therewith. And they fhall not execute their precepts
by meflengers or fub-beadles, but in their own perfons.
And they fhall not pafs fentence of excommunication or
interdict themfelves, nor denounce fuch fentences pafTed
hy others, without fpecial mandates from their principals :
and if they fhall prefume to do otherv/ife, fuch fentences
fhall not bind. And the beadles or apparitors who
ihall a£t contrary to this conititution, and fhall be found
burdenfome or injurious to the fubjeiis of their maflers,
fhall be feverely punifhed, and be obliged to render
double to thofe they have aggrieved. Z?W. 221.

Or of other prie/is] As, chantry priefts, or other who
performed obits or anniverfaries. Id.

(3.) Stratford, We do ordain, that every one of our
fufFragans fhall have one riding apparitor only, for his
diocefe ; and that the archdeacons of the feveral places
within our province fhall have one apparitor for every
deanry, not riding, but on foot : And they fhall not flay
with the redlors or vicars of churches at their charge
more than one night and day in every quarter of a year,
unlefs they be fpecially invited by them : And they fhall
not make iny colledions of money at the general chap-
ters ; nor of wool, lambs, or other things at any other
time; but they may accept with thanks what fhall be
freely given to them. And if more fhall be deputed than
is above exprefTed, or any of them fhall be found tcme-
rarioufly to adt contrary to the prcmifles ; they who de-
puted them fhall be fufpended from their office and be-
nefice until they fhall remove fuch perfon fo deputed,
and they who fhall be fo deputed fliall be for ever ipfa
faiSlo fufpended from the office of apparitors. Lindw.

I (4O ^^^*

t^pparito?. 49

(4.) Can, 138. Forafmuch as we are Jeflrous to, re-
drefs fuch abufes and aggrievanccs^ as are faid to grow by
fumners or apparitors ; we think it meet that the multi-
tude of apparitors be (as much as is poffible) abridged or
reftrained : wherefore we decree and ordain, that no bi-
fhop or archdeacon, or other their vicars or officials, or
other inferior ordinaries, (hall depute or have more appa-
ritors to ferve in their jurifdicSlions refpedively, than either
they or their predecelTors were accuftomed to have thirty
years before the publifhing thefe our prefent conftitutions.
All which apparitors fhall by themfelves faithfully execute
their offices ; neither fhall they under any colour or pre-
tence whatfoever caufe or fuffer their mandates to be
executed by any meflengers or fubftitutes, unlefs upon
fome good caufe to be firft known and approved by the
ordinary of the place. Moreover they fliall not take up-
on them the office of promoters or informers for the court.
Neither fhall they exa6l more fees, than are in thefe our
Conflitutions formerly prefcribed. And if either the num-
ber of the apparitors deputed fhall exceed the affignej
limitation, or any of the faid apparitors fhall offend in
any of the premiiTes ; the perfons deputing them, if they
be bifhops, fhall upon admonition of their fuperior dif-
charge the perfons exceeding the number fo limited ; if
inferior ordinaries, they fhall be fufpended from the exe-
cution of their office, until they have difmiiTcd the ap-
paritors by them fo deputed ; and the parties themfelves
fo deputed, fhall for ever be removed from the office of
apparitors, and if being fo removed they deiift not from
the exercife of their faid offices, let them be punifhed by
ecclefiaftical cenfures as perfons contumacious. Provi-
ded^ that if upon experience the number of the faid ap-»
paritors be too great in any diocefe, in the judgment of
the archbifhop for the time being ; they fhall by him be
fo abridged, as he fhall think meet and convenient.

Faithfully execute their offices'] If a monition be awarded
to an apparitor, to fummon a man, and he upon the re-
turn of the monition avers that he had fummoned him^
when in truth he had not, and the defendant be there-
upon excommunicated ; an adVion on the cafe at common
law will lie againfl the apparitor for the falfehood com-
mitted by him in his office, befides the punifhment in-
milcd on him by the ecclefiaflical court for fueh breach
of trufl. AyL Far erg. 70. 2 Bulji. 264,

Vol. L E [Whic>

so Zw^titdh

[Which kind of punifliment of the apparitor for mif-
behaviour, is much more regular than that which was
inflidled by the famous Bogo de Clare (mentioned elfe-
where in this book, under the title piucalltp) ; whofe
fervants, when the apparitor went to ferve a citation up-
on him in parliament time, compelled the apparitor
to eat both the citation and wax. JyL Par, 70, 71.]

Office of promoters or informers for the court'\ H. 8
Cha. Carlton and Mill. Aftion upon the cafe, for that
the defendant being an apparitor under the bifhop of
Exeter, malicioufly, and without colour or caufe of fu-
fpicion of incontinency, of his own proper malice, pro-
cured the plaintiff ex officio, upon pretence of fame of
incontinency with one Edith (whereas there was no fuch
fame nor juft caufe of fufpicion), to be cited to the
confiftory court, and there to be at great charges and
vexation, until he was cleared by fentence ; which was
to his great difcredit and caufe of great expences and
lofTes ; for which the a(Slion is brought. Upon not guilty
pleaded, and found for the plaintiff, it was moved in
arrelt of judgment, that in this cafe an a6lion lieth not;
for he did nothing but as an informer, and by virtue of
his office. But all the court held, forafmuch as it is al-
ledged that he did malicioufly and without colour of fu-
fpicion caufe him to be cited, upon pretence of fame
where there was no offence committed, and it is aver-
red that there was not any fuch fame, and he is found
guilty thereof, therefore the adlion well lieth, Cro, Car.
291.

Neither Jhall they exaSf more fees ^ than are in thefe our con-'
fitutions formerly prefcribed] That is, in Can. 135. which
is fpecified under the title if0eiS(#

Origin of ap- I. HT^ HERE were no appeals to the pope out of Eng-*
j.€al» to Rome, J^ land, before the reign of kingStephcn ; when the/
were introduced by Henry de Blois, bifhop of Winchef-
ter, the pope's legate. Not but attempts had been made
before that time, to carry appeals to Rome, which were
vigoroufly withltood by the nation j ks appears by the
complaint of the pope in the reign of Henry the firfl-, that

the

^JTppeai; 51

t]ie king would fufFer no appeals to be made to him ; and
before that, in the reign of William Rufus, the bifhops
and barons told Anfelm (who was attempting it) that
it was a thing unheard of for any one to go to Rome
(that is, by way of appeal) without the king's leave.
And tho' this point was yielded in the reign of king
Stephen, yet his fucceflbr Henry the fecond refumed and
maintained it, as appears by the conftitutions of Claren-
don, which provide for the courfe of appeals within the
realm, fo as that further procefs be not made, without
the king's aflent. And afterwards, in the parliament of
Northampton, the conftitutions of Clarendon were re-
newed ; and in the reigns of Richard the firft and king
John, we iind new complaints of the little regard paid to
thofe appeals j for which alfo divers perfons were impri-
foned in the reigns of Edward the firft, Edward the fe-
cond, and Edward the third. Gibf, 83. 4 Inji. 341.

Neverthelefs, appeals to Rome ftill obtained, until the
reign of king Henry the eighth, when they were finally
aboliftied by the ftatutcs of the 24 H. 8. c. 12. and 2^
H, 8. c. 19. (here following).

2. By the 24 H. 8. c. 12. All caufes tejlamentary^ caufes Appeals to Rome
cf matrimony,^ and divorces^ rights of tithes^ ohlationSy and abolifhed.
obventions Jhall be finally determined within the kings j^^^J"
di£fion and authority^ and not elfewherc ; any foreign appeals
to the fee of Rome^ or to any other foreign courts or poten-
tates^ to the let or impediment thereof in any wife notwlth-
Jianding* And if any perfon Jhall procure from the fee of
Rome or any other foreign court any appeal in any the caufes
c^orefaid^ or execute any procefs concerning the fame^ he [hall
incur a praemunire, f. 2, 4.

And by the 25 H. 8. c. 19. No manner of appeals Jhall
he had out of this realm to the bijhop or fee of Rome^ in any
caufes or matters whatfoever ; but all manner of appeals^ of
what nature or condition foever they be, Jhall be made and
had after fuch form and'hndition, as is limited for appeals in
iaufes of matrimony^ tithes, oblations, and obventions by a fla-
tute madeftnce the beginning of this parliament. And if any
perfin Jhall fue any appeal to the bijhop or fee of Rome, or pro-
cure or execute any procefs from thence -, he, his alders, coun-
cilors and abettors, Jhall incur a pramunlre. f. 3? 5-
';^3. And appeals within this realm Jhall he in this form, Appea!st©thc
and not otherwlfe ; firjl, from the archdeacon or his social, i/* fjp"^i^^°^y "
the matter or caufe be there begun, to the bijhop. 24 H. 8. wifhintbis
j^-XV ^« 5- '"^'"*

E 2 If

52 appeal.

If it he cofnmeiiced before the hijhop or Ms commiffary ; theTif
from the bijhop or his commiffary^ within fifteen days next-
enfuing the judgmejit or fentence given ^ to the archhiflwp ; and:
tioere to he definitively and finally ordered decreed and adjudged^,
without any other appeal whatfoevLf*. f.. 6«.

If the tJiatter for any the caufes aforefaid^ be commenced he-
fore the archdeacon of any archbifiop^ or his commiffary ; then
the party grieved may take his appeal, luithin 15 days nex1>
after judgment or fentence given ^ to the court of the arches, or
audience of the fame archbijhop ; G?id from the faid court of tha
arches, or audience, within fifteen days then next enfuing after
judgment or fentence there given, to the archbift)op of the fame
province^ there to he finally deter mimd without any- other ap^-
peal. f. 7.

If the matter he comw.enced for any the caufes eforefaid^>
hejore the archhifioop,. then, the fa?ne fljall he before him defi-
nitively determined,^ without any other appeal, provocation, or
any other foreign procefs out of this realm, to he fued to the let
or derogation of the faid judgment fentence or decree, other-
wife than is by this ail limited ; faving always the prerogative
of the archhifijop and church of Canterbury, in all the forefM
caufes of appeals, to him and his fucceffors, to be fued within-
this realm, in fuch and like wife as they have been accuflomed^
and ufed to have heretofore* f. 8-

Jppeals within this realm Jhall he in this form'\ Whicli;
is to be done by demanding letters miflive, called apofloU^..
from the judge a quo, to the judge ad quern,. Gibf. 1035.

From the archdeacon, or his official, to the h'ifijop'] And not'
per faltum to the archbifhop : and this is agreeable to the-
rule of the ancient canon law. Gihf. 1036.

In the cafe of Robinfon and Godjalve,. M. 8 W. It was-
refolved by the court, that where an archdeacon has a
peculiar jurifdi<5lion, he is totally exempt from the power;
of the bifhop, and the bifliop cannot enter there and hold
court. And in fuch cafe if the party who lives in the
peculiar be fued in the bifhop's court, a prohibition ftial!
be granted j for the ftatute intends that no fuit fhall be
per faltum. But if the archdeacon has not a peculiars-
then the bifhop and he have concurrent jurifdiftion, and
the party may commence his fuit either in the archdeacon's
court or the bifhop's; and if he commence in the bifhop's
court, no prohibition fhall be granted j for if it fhould,
it v/ould confine the bifhop's court to determine nothing,,
but appeals, and render it incapable of having any caufes- •
©riginally commenced there, L* Raym, 123.

Froifi^

%pm^- 53

From the hijhop'] This is to^e extended to all who have
■epifcopal jurifdicElion : As in the cafe of yohnfon and
Ley^ M. 7 TV. where the dean of Salifbury, in one of
<his peculiars, made letters of requeft to the dean of the
Arches ; it was objected, in order to obtain a prohibition,,
that this w2iS per faltum^ and that he ought to have made
fequeft to the bifhop ofSalifbury his immediate ordinary:
But the plea was not allowed, becaufe this was not (as
in the cafe of an archidiaconal peculiar) fubjedl to the
jurifdi£tion of the ordinary, but immediately to the arch-
biihop.- Gibf. 1035- "Skin. 589,

From the bijhop or his commijfaryy to the arch'bijhop'] And
mot from the bifhop^s official or commiiTary, to the bifhop
liimfelf ; for the reafon given in the canon law, namely,
left (having both but one auditory) the appeal fhould
feem to be made from the fame perfon to the iame perfon.
Gibf, 1036-

But by the "25 H. 8. c. 19. For lack of jujllce in the
archbijhops courts^ the painty may appeal to the fiing in chancery j
^nd upon ei^ery fuch appeal ^ a commijjion pall be dire^ed un-
der the great feal to fuch perfons as fiall be named by the king^
like as in cafe of appeal from the admiral's courts to hear and
determine fuch appeals ; whofe fntence Jhall be definitive : and
no further appeals to he had from t}}€ faid com?ni£ioner5^ f. 4,

Fcr lack of juftlce In the arMifiops courts'] Such appeal
lies not from a local vifitor ; nor in any caufe of a temporal
nature ; nor did it lie from the high commijfion court when
-in being, becaufe they themfelves were the king's dele-
gates, as a(2:ing by immediate commiffion from him, and
there was no remedy againfi their fentences but a new
|:ommiflion to others grantable in virtue of the royal pre-
rogative and independent from this ftatute. Watf c. 6.

The party grieved nitiy appeal to the king in chancery] And
no commiflion of delegates, in any cafe of weight, fhall
be awarded, but upon petition preferred to the lord chan-
cellor, who will name the commiffioners himfelf, to the
end they may be perfons of convenient quality, having
regard to the weight of the caufe, and dignity of the
court from which the appeal is. Bacon's TraSi: 297.
f And fometimes for a fupply of juftice, on petition to
the king, a fpecial commiflion of delegacy iffueth, to be-
gin the fuit, and proceed originally in the caufe ; as
where the archbiihop himfelf is intQrefted^ or the like.
I Oughton's Or do Judiciorum. 437,

E 3 A

54- Appeal;

A commijfion Jhall he direSfed under the great Jeal^ to fiich
ferfons as Jhall he named by the king] Thefe commiflioners
are ufually fome of the lords fpiritual and temporal or
both, and commonly one or more of the twelve judges,
and one or more do<ftors of the civil law. Floy, 20i

And they are commonly called delegates (according to
the language of the civil and canon law), on account of
the fpecial commiffion or delegation they receive from the
king, for the hearing and determining every particular
caufe. Agreeably whereunto, their proceedings are ac-
cording to the rules of the civil and ecclcfiaftical laws ;
and on that account it hath been particularly adjudged,
that a fuit there doth not abate by the death of the par-
ties : this being the courfe in the ecclefiaftical courts.
Alfo prohibitions go to them, as to an ecclefiaftical court.
But in the cafe of Stephen/on and PFood^ H. lO Ja. the
better opinion of the court was, that they could not grant
letters of adminiftration. Gihf, lo^j. _

Whofe Jentence Jhall he dejinitive] In the cafe of Saul and
Wilfon^ M, 1689. By the lords commiffioners : There
lies no appeal from a fentence in the court of delegates ;
for they cannot have any original jurifdi6^ion, becaufe it
!s a matter grounded upon an zdi of parliament, and the
act gives them none. 2 Vern, 118.

But on a petition to the king in council, a commiffion
of review may be granted under the great feal, appointing
new judges, or adding more to the former judges, to re-
vrfe, review, and rehear the caufe. i Ought. 437.

And hereupon lord Coke obferveth, that albeit thefe
^atutes do upon certain appeals make the fentence defini-
tive as to any appeal, and that no further appeal fhould
be had ; yet the king, after fuch a definitive fentence, as
fupreme head, may grant a commiffion of review, for two
caufes : i . For that it is not reftrained by the ftatute.
2. For that after a definitive fentence, the pope as fupreme
head by the canon law ufed to grant a commiffion ad
revidendumj and fuch authority as the pope had, claim-
ing as fupreme head, doth of right belong to the crown,
and is annexed thereunto by the ftatutes of the 26 H. 8.
c. I. and I Eliz. c. i. And fo it was refolved in the
king's bench, T. 39 Eliz. where the cafe was, that fen-
tence being given in an ecclefiaftical caufe in the country,
the party grieved appealed according to the a<Sl of the 24
H. 8. to the archbifliop, before whom the fiift fentence was
afiirmed. Whereupon, according to the ftatute of the

:^ppeau 55

45 H. 8. he appealed to the delegates : before whom both
the former fentences were repealed and made void by de-
finitive fentence. And thereupon the queen, as fupreme
head, granted a commiffion of review, ad revidendum the
fentence of the delegates. And upon this matter, a pro-
hibition was prayed in the king's bench, pretending that
the commiffion of review was againft law, for that the
fentence before the delegates was definitive by the ftatute
of the 25 H. 8. But upon mature deliberation and de»
bate, the prohibition was denied ', for that the commiffion
for the caufes abovefaid was refolved to be lawfully
granted. In this cafe Coke fays, he being then the
queen's attorney, was of counfel to maintain the queen*^
power. And precedents were cited in this court, in
Micheloth eafe, 29 Eliz, and in Goodman's cafe, and in
Huefs cafe, in the fame year. 4 Inji. 341.

But a commiffion of review is matter of difcretion,
and not of right : and if it be a hard cafe, the chancellor
will advife the crown not to grant it. 2 P. WUL 299.

In the commiffion of review, there is fometimes a
claufe, to admit other allegations, and new matter, and
to take proofs thereupon as well on the one part as on
the other, i Ought. 437.

4. By the aforefaid ftatuteof the 24H. 8. c. 12. ^tf«y Appeal to th«
matter^ for any the caufes fpecified in the faid ftatute, Jhall convocdtion ^
come in contention in any oftheforefaid courts^ which Jhall touch ^^ p^^ty/^ ^^*
the king j the party grieved may appeal from any of the courts

tf this realm^ to the fpiritual prelates^^ and others abbots and
priors of the upper houfcy ajfembled and convocate by the king's
writ in the convocation beings or next enfuing ; fo that fuch
appeal be within fifteen days after fentence given : and the fame
to be there finally determined, f. 9.

5. By the ftatute of the 25 H. 8. c 19. Appeals from A^v^^h from
places exempt^ which by reafon of grants or liberties were here- P^*^*^^ ex«ijai>c.
tofore to the pope^ fi^aU^now be to the king in chancery^ and

Jhall be definitively determined by authority of the king's com^
mijfion : fo that no archbijhop or bijhop Jhall intermit or meddle
with fuch appeals', otherwife than they might have done before*
f. 6.

6. The manner of obtaining a commiffion of delegatesMannerof ob*
is thus : The prodW of the appellant draws a petition tota^nnii a u.;. -
the lord chancellor or lord keeper, fetting forth the caufe,"''^^^" ^^^''"-
and what his client inftfted on, and what the judge de-'

creed ; and that thereupon his client, thinking himfclf
aggrieved, hath appealed from the faid decree to the king'a
majeftjr in his high court of chancery; Wherefore hi^

E 4 ' cliCAt

56 :^ppeai.

client humbly requefteth of the lord chancellor, that ^
commififion of appeal be made out and iflued under the
great feal, directed to certain judges delegate to be named
at his pleafure, to hear and determine the caufe aforefaid.
Whereupon the lord chancellor fets down the names of
fxich perfons as he thinks proper : and afterwards a com-
miinon is drawn and executed in due form, by virtue
whereof the commiiTioners proceed to hear and determinQ
the matter of the appeal, i Ought. 437.
In what cafe 7. Can. 98. Forafmuch as they who break the laws,can^

caution is to be ^^^ |j^ rcafon claim any benefit or proteftion by the fame 5

required, before ,' ^ • ^ r ' ^ ir/l*l

adminrioncf the we decree and appoint, that after any judge ecclelialtical

appeal. hath proceeded judicially againft obllinate and fadious;

perfons, and contemners of ceremonies, for not obferving
the rites and orders of the church of England, or for
contempt of publick prayer ; no judge ad quem, (hall ad-r
mit or allow any his or their appeals, unlefs he having
firil: feen the original appeal, the party appellant do firft
perfonaliy promife and avow, that he will faithfully keep
snd obferve all the rites and ceremonies of the church of
England, as alfo the prefcript form of common prayer,
and^do likewife fubfcribe to the three articles, concerning
the king's fupremacy, the book of common prayer^ and
the thirty nine articles of religion.

Stamp duty. 8. By the feveral flamp a6ls ; every appeal from th^

court of arches, or the prerogative courts, ihall be upoi^
a treble 40s. flamp.

SufpenHpn of thp 9. During the appeal, tl^e fentence giy^i by the jnfe-y

Sentence during rior court or judge is fufpended.

*^e appea , Thus, if a church be voidable by deprivation, and the

ecclefiaftical judge li^th adlually pronounced a fentence
pf deprivation againft the incumbent ; yet if the perfoi^
deprived doth make his appeal, the church is not actually
void, fo long as the appeal dependeth : and if the fen-
tence of deprivation upon the appeal be declared void,
the clerk is perre61: incumbent as before, without any ne^
inftitution, PFatf. c. 6.

:nh;i.;tIofj. 10. And pending the appeal, it is ufual, at the inftancc

of the appellant, for the fuperior court to grant an inhi-
Jjition to flay the execution of the fentence in the inferior
court, until the appeal fhall be determined.

Concerning which, by Can. 96. it is ordained, that no
inhibition fhall be granted out of aiiy court belonging to
the iirchbifhop, at the inftance of any p^rty, unlefs it be
fubfcribcd by an advocate pracSlifing in the faid court.
And the like courfe Ihall be ufed, in granting forth any

inhibition

inhibition at the inftance of any party, by the bifliop or
his chancellor againft the archdeacon, or any other per-
fon exerclfmg ecclefiaftical jurifdidion. And if in the
court or confiftory of any bifhop there be no advocate ;
then (hall the fubfcription of a proclor praftifing in the
/ame court, be held fufficient.

And by Can, 97. it is further ordered and decreed, that
henceforward no inhibition be granted by occafion of any
interlocutory decree, or in any caufe of corre61:ion, except
under the form aforefaid. And moreover, that before
the going out of any fuch inhibition, the appeal it felf,
or a copy thereof (avouched by oath to be juft and true),
be exhibited to the judge or his lavv^ful furrogate, w^hereby
he may be lawfully informed, both of the quality of the
crime, and of the caufe of the grievance, before the
granting forth of the faid inhibition. And every appel-
lant, or his lawful pro61:or, fhall before the obtaining of
any fuch inhibition, fhew and exhibit to the judge or his
Jurrogate in writing, a true copy of thofe acts wherewith
he complaineth himfelf to be aggrieved, and from which
he appealeth ; or ihall take a corporal oath, that he hath
performed his diligence and true endeavour for the ob-
taining of the fame, and could not obtain it at the hands
of the regifter in the country, or his deputy, tendring
him his fee. And if any judge or regifter fhall either
procure or permit any inhibition to be fealed, fo as is
faid, contrary to the form and limitation above fpecified.;
let him be fufpended from the execution of his office,
for the fpace of three months ; and if any pro^lor, or
other perfon whatfoever by his appointment, fhall offend
in any of the premifles, either by making or fending out
any inhibition, contrary to the tenor of the faid premif-
fes ; let him be removed from the exercife of his office,
for the fpace of a whole year, without hope of releafe or
jeftoring.

^ppraifement. See £2Ifll!5*

:^pp?o^

I. Original of the appropriation of churches.

II. Endowment of vicarages upon appropri*
ation.

III. Augmentation of vicarages.

IV. Vicarages how diffolved.

I. Original of the appropriation of churches.

FO R the firft fix or feven centuries, the parochia waj
the diocefe or epifcopal diftri(5t, wherein the biihop
and his clergy lived together at the cathedral church ; and
whatever were the tithes and oblations of the faithful,
they were all brought into « common fund, from whence
a continual fupply was had, for fupport of the bifhop and
his college of prefbyters and deacons, and for the repatir
and ornaments of the church, and for other fuitable works
of piety and charity. So that before the diftribution of
England into pariflies (as the word is now ufed) all tithes
offerings and ecclefiaftical profits whatfoever did entirely
belong to the bifhop and his clergy for pious ufes, and
by their original nature could not be in the hands of any^
layman, or be employed to any fecular purpofe. This
community and collegiate life of the bifhop and his
clergy, appears to have been the pra6lice of our Britifh,
and was again appoir^ted for the model of our Saxoa
churches.

While the bifhops thus lived amongft their clergy,
refiding with them, in their proper feats or cathedral
churches ; the flated fervices, or publick offices of reli-
gion, were performed only in thofe fingle choirs ; to
which the people of each whole diocefe rcforted, efpecially
at the more folemn times and feafons of devotion. But
to fupply the inconveniences of diftant and difficult accefs^
the bifhop fent out feme prefbyters into the remoter parts,
to be itinerant preachers, or occafional difpenfers of the
word and facraments. Mofl of thefe milfionaries returned
from their holy circuit to the center of unity the epif-
copal cgUpge, and had there only their fixed a;bode j gi-
ving

vlng the bifhop a due account of their labours and fuc-
ceffes in their refpedive progrefs. Yet fome few of the
travelling clergy, where they faw a place mon populous,
and a people zealous, built there a plain and humMe con-
veniency for divine worfhip ; and procured the bilhop to
confecrate it for an oratory or chapel at large, not yet for
z parifli church, or any particular congregation, to be
confined within certain bounds and limits. And while
the neceflities of the country were thus upon occafion
fupplied, it did not alter the ftate of the ecclefiaftical pa-
trimony ; which ftill remained invefted in the bifhop for
the common ufes of religion, as devoted folely to god and
his clergy.

The divifion of a diocefe into rural parifhes, and the
foundation of churches adequate to them, cannot be af-
cribed to any one a(5l, nor indeed to any one lingle age.

Several caufes and perfons did contribute to the rife
of parochial churches. Sometimes the itinerant preachers
found encouragement to fettle amongft a liberal people,
and (by their afliftance) to raife up a church, and a little
adjoining manfe. Sometimes the kings, in their country
vills and feats of pleafure or retirement, ordered a place
of worfhip for their court and retinue, which was the
original of royal free chapels. Very often the bifhops,
commiferating the ignorance of the country people, took
care for building churches, as the only way of planting
or keeping up chriflianity amongfl them. But the more
ordinary and flanding method of augmenting the number
of churches, depended on the piety of the thanes or great-
er lords ; who having large fees and territories in the
country, founded churches for the fervice of their fami-
lies and tenants within their dominion. It was this gave
a primary title to the patronage of laymen : It was this
made the bounds of a parifh commenfurate to the extent
of a manor : It was jbis divided the feveral portions of
the fame church, according to the feparate interefl of the
feveral lords : And it was this diflincSl property of lords
and tenants, that by degrees allotted new parochial bounds,
by the adding of new auxiliary churches.

This firft defignation of parifh churches did not at all
break in upon the right of the bifhop, either in refpe<3:
of fpirituals or temporals. For the bifhop had flill the
proper cure of fouls within his whole diocefe, and a title
to all the ecclefiaflical revenues ; and it was by his autho--
rity and confcnt, that parifti churches and priefts were fo
l^rdained, as helps and aiTiilants given to him. For their

number

6oi l^pmW^ttan

ntimlDer not only promoted the fervices of religion, but
€ven advanced the revenues of the fee. Yet for fear the
bifliop's committing fo many parts of his charge to fub-
ordinate curates might feem a fort of recefs from his right
and claim to them, he had the moft folemn refervations
made to him and his fucceflbrs. No church, however
built, was to be employed for publick fervice, till confe-
crated by the bifhop. And no priell: was to reiide and
officiate there, but by the bifhop's delegation. And there
were indeed as many acknowledgments of right and re-
fpedl paid to the head of the diocefe, as were by feudal
cuftoms paid to the head of the feigniory or civil dominion.
For as the lord's own feat was the head of the barony,
or the lord's court, whither the inferior tenants were
fummoned to anfwer for the conditions of their tenure ;
fo the bifhop's chair was always the feat and heart of the
diocefe, to which the clergy were cited to give account of
their offices and pofleffions, as in their mother church.
As each inferior tenant was admitted with fome oath of
fidelity to the prime lord ; fo every parifti prieft had ad-
miffion to his church, with a like obligation of obedience
to his bifhop. As each tenant paid fome fort of rent
unto his lord, for being quieted in his pofleflion ; fo the
prefbyter made a return of fome part of the parochial pro*
fits to his bifhop, for the fecurity of enjoying the re-
mainder to his own ufe. As no one tenant could defert
his holding, or fubftitute another in it, without confent
and acceptance of the lord ; fo neither could any parifh
prieft forfake his charge, or appoint another to fucceed
him in it, without exprefs leave and authority of the
bifhop. And as upon the death of a feudatory tenant,
the cuftody of the lands came back to the lord, till an
able heir fhould be inflated in it ; fo likewife the cuflody
of all vacant benefices did revert to the bifhop, and he re-'
ceived the mean profits of them, till a fucceiTor was con-
firmed and fettled in them. And in many other forms
and cufloms of dependency and fubjedlion, the parochial
clergy were as accountable to the bifliop, as the lay te-
nants were to the prime lord. So that during all this
firft conftitution of parifhes, there was nothing of tithe
or glebe or oblations diverted into lay hands, or applied
to any fecular purpofes ; but the abfolute property, and
the intire difpofal of them, did remain in the bifhops and
the clergy, for their own fupport, and other pious ufes.

The firft way of diverting the tithes and oblations from
the immediate ufes of the bifhop and his clergy, did arife

froi»

from the eonfufion of parochial bounds ; which having n6
©ther limits fet to them than thofe of the polTeffions of
the refpeftive founders, this obliged them and their re-
tinue and tenants to pay their duties to that one church :
iut if any new fee were ere£led within fuch lordfhip, or
there were any people within the precinct who were in-
dependent on the patron, they were at liberty to chufe any
neighbouriag church or any religious houfe, and to pay
their tithes and make their offerings, wherever they re-
ceived the benefits of religion. So the bifhop receding
from this former claim,, and his fubftituted clergy not yet
knowing the bounds of their refpedliv^ cures ; this let in
an opiniony that tithes and oblations were an arbitrary
difpofition of the donor, who might give them as the re-
ward of religious fervice done to him, in what place, or
from what perfon foever he received that fervice. Whichi
notion gave occafion to the monafteries, to ingrofs all the
neighbouring people, afid efpecially the richer lords and
patrons, to themfelves ;. and to draw them from their
own priefts to communicate in their cells ; and fo to
bring their tithes and ofFerings> with them. But yet this
difcretionary allotment of tithes and offerings, tho' inju-
rious to particular priefts and parifh churches, was na
violation of the general rights of the national church an<i
clergy ; for tho' the people fo chofe their own way of
diflribution, they did by no means detain the ftated dues
unto themfelves, nor alienate them to any ordinary ufes :
they ever looked upon them as confecrated to the altar,
and offered them, purely for the fake of god and their
fouls.

Afecond prejudice to the parochial clfergy was, theearly
divifion of tithes and offerings into feveral parts, for tha
feveral purpofes of piety and charity. The benevolence
cf a diocefe was at firft intirely at the bifhop*s receipt and
difpofal ; but that th^re might appear to be a juft appli-
€ation of it, a rule obtained for dividing the fund into
four parts; one ta the fabrick and ornaments of the
church ; another to the officiating prieit ; a third to the
poor, and necefiltous travellers ; and a fourth referved to
the more immediate fervice of the bifhop and his college.
But when fees began to be endowed with lands and other
firm polTeifions ; then the bifhops (to encourage the foun-
dation of churches, and to eftablifli a better provifion fon
the refiding clergy) did tacitly recede from their quarter
part, and were afterwards by canons forbidden to demand
tt^ if they could live v/ithout it. So as the divifion was

noyr

62 :»pp?op;ifaei'ott;

now only into three parts ; and every priefl was the re-*
ceiver and diftributer as the bifhop had been before, ftand-
ing obliged to expend one part on the raifing fupporting
and adorning his church and manfe, another part upon
entertaining ftrangers and relieving the poor, and to have
a third referved for his own immediate occalions. Yet
ftill the whole product of tithes and offerings was the
bank of each parifh church, and the minifter was the fole
truftee and difpenfer of them, according to thofe ftated
rules of piety and charity. But this tripartite divifion
foon occafioned great diforders ; for the lay patrons did
from hence infer, that a third part of the revenues of a
church was fufficient for the fupply of it, and they un-
dertook to difpofe of the two remaining parts ; at firft
pretending to apply them to the like pious ufes ; but then
by degrees detaining them in their own hands, and even
at laft getting them infeofFed in them and their heirs,
efpecially within their own demefns. And this proceeded
fo far, that in fome parts the powerful patrons feized upon
the whole praedial tithes, and left the altarage or fmaller
tithes (which were at firft voluntary oblations, and there-
fore reckoned a part of the altarage) to the portion of the
parifh prieft ; fetting a precedent of impropriations in lay
hands, even before the religious fell into that method.
But however, as the lay patrons at firft took the tithes
(or feldom more than two parts of them) in truft for the
church and poor, not in tenure to their own property and
pleafure ; and after they were infeofFed in them, they ftill
confidered them to be charged with the fame burdens ;
and while they held them, did exonerate the clergy from
thofe burdens 5 fo they would not keep that conditional
tithe, but by degrees made a confcience to reflore every
part either to the parifh churches, or at leafl to religious
houfes. So that long before the reformation, all manner
of tithes and oblations were intirely given back to the
church, and invefled only in the clergy fecular or regular.
The next injury to parochial churches, came from the
furrendring of the right of patronage to collegiate bodies.
For the lay patrons remembring, that the clergy living in
common with their bifhop in his cathedral church, were
formerly maintained by the tithes and oblations of the
country ; when this practice ceafed, they thought it a
fort of laudable reflitution, to give the perpetual advow-
fon of their churches to that body, or to fome one parti-
cular member of it ; whereby thofe churches became pre-
bendalj and the fupply of them was left to the community,

3[pp?opn'at<otti 6f

ct to that flngle canon who was to have his preben4 or
exhibition from it. Ail the monafteries found this me-
thod to be a very good expedient for them. Hence they
incited their benefactors to confer upon their houfes the
right of prefentation to country churches ; a favour the
more eafily obtained, becaufe the lay lords looked upoa
themfelves as guardians only, and were glad to devolve
their truft upon thofe focieties ; who, as they thought,
would faithfully difcharge it. And by thefe means, in an
age or two, above one half of the parochial churches in
England came to be lodged in the power of cathedrals
and monafteries, and were perfonally ferved by the mem-
bers of thofe bodies. But this by degrees let in mifchief
and ufurpation : For the cathedral canons, finding their
refidence in thofe rural churches to be inconliftent with
their due attendance in the chapter and choir, began to
place annual curates to reprefent them in their feveral be-
nefices, to account for the profits of them, and to receive
a fmall portion, or fome pecuniary ftipend for their fer-
vice. Till, being prefled by the bifliops, and obliged hj
fome new conftitutions, they did at laft prefent their
clerk to the full title of the church, referving a rent or
penfion to themfelves ; which tho' at firft moderate, they
often advanced to the great oppreflion of the country
clergy. The religious did the fame in monafteries, and
had a fairer pretence for fo doing ; for being tied to ftric-
ter rules of their order, and more confined within their
cells, they appointed priefts, whom they called fecular,
to take upon them the cure of fouls, and to be ftewards
of the revenue, or at leaft penfioners to their feveral con-
vents. And even fome of the potent lay patrons followed
this example, binding the clerks in the like annual rents
and refervations to them and their heirs. So that within
a hundred years after the conqueft, moft of the parifh
priefts in England were become tributary to their patrons,
and paid out fuch lai^e penfions to them, that they were
not able to fubfift with decency and credit. This abufe
becoming very grievous, occafioned divers conftitutions
to be made againft it. But the lay patrons protected
themfelves by prohibitions and appeals from the eccle-
fiaftical jurifdi6lion, and fued their clerks in the temporal
court for the performance of fuch indired covenants*
Therefore the bilhops did at laft obtain from king Ed-
ward the fecond, a full and fole power to judge in this
caufe of penfions, and thereby did foon efFedually fup-
prefs them as to lay patrons j and tho* the dignitaries and
2 the

64 :^pp?opn'ati'ort»

the religious did longer enjoy thofe penfions, yet were
they often mitigated and retrained by the bifhop, having
been frequently complained of and even condemned by a
decree of pope Clement the third. And it was indeed the
reftraint of thefe arbitrary preftations, that put the monk^
upon inventing the new ftratagem of impropriations.

For when the monks faw, that they could not well
fupply their own churches, and could no longer fet arbi-
trary fines and penfions upon the poor clergy who fupplied
them; they fell upon the proje£l of retaining the churches
in their gift, and all the profits of them in proprios ufuSj
to their own immediate benefit. This art of appropriation
was certainly invented by monaftick men, for a curb and
weight upon the fecular clergy ; but in what year it be-
gan doth not certainly appear : for indeed all corruptions
have a fecret rife, and are not in hiftory obferved, till the
icandal and the complaints do make fome noife. It is
faid, that there were fome appropriations of churches be-
fore the conqueft ; but thefe feem to have been only con-
veyances of the churches with their tithes to thofe religi-
ous corporations, who had thereby no other right convey-
ed to them, than what the lay lords had before j which
was, a right of prote6lion and commendation to the
church, not a right of converting the profits to their own
ufe and property.

But the way of fi:ri(Sl:ly appropriating parifli churches to"
religious houfes, or giving them in full right to the monks
abfolute property and ufe, was an engine of oppreffionr
which came in with the Norman conqueft ; when the
greater prelates being Normans, did trample upon the
inferior clergy who were generally Englifli ; increafed the
penfions which the clergy were to pay unto them, or elfe"
withdrew their ftipends 5 and yet loaded them with new
fervices, and every way opprelled them without mercy.
And to complete the fervile dependance, an artifice was
contrived, to obtain indulgence from the pope, that what-*
ever churches they held in advowfon, they ihould com-
mit them to be ferved by clerks^ who as to the cure of
fouls fhould be refponfible to the biftiop, but as to the
profits ihould be accountable to the abbot or prior and his
brethren.

And this was indeed efFeclual appropriation ; a badge
of flavery unknown to the Saxon churches, brought over
by the Norman lords, and impcrioufly put upon the En--
glifh clergy by the authority of the pope* And fo this
pra<S\ice, which crept in with William the conqueror, in
4 a fev/

:^pp?op^^atrott. 65

a few reigns became the cuftom of the land, and the m*
fecftion fpread, until within the fpace of 300 years, above
a third part, and thofe generally the richeft benefices in
England, became appropriated.

And in thefe cures, the monks themfelves did for fome
time refide- and officiate by turns, by lot, and even by
penance, with many other ways of fhlfting off the duty
upon one another. Until at length fuch changes and
intermiffions in the paftoral care becoming very fcanda-
lous, the bifhops did by degrees reflrain the monks from
a perfonal cure of fouls, and confined them according to
rule within their own cloifters ; obliging them to retain
fit and able capellans^ vicars^ or curates (for thofe titles
did all mean the fame office) ; with a competent falary paid
to them. But then again they opprefTed thefe flipendiary
vicars with fuch forry allowance, and fuch grievous fer-
vice 5 that the bifhops at lalt brought them to the prefen-
tation of perpetual vicars endowed and inftltuted, who
fhould have no other dependence on their convents, than
the re^lors had upon their patrons ; declaring it to be
dilhoneft and contrary to canon, that religious men, to
whom it was granted to convert churches to their proper
ufes, fhould perfonally ferve thofe churches, and there-
fore ordaining, that they fhould appoint perpetual vicars
to be inflituted by the bifhop, v/ith a competent mainte-^
nance by the bifhop taxed and affigned to them.

One pretext of the religious to gain appropriations was ^
to defire no more than two parts of the tithe and profits to
be fo appropriated to them j leaving a third to the free and
quiet enjoyment of the parifh prieft, whom at the fame
time they eafed from the burden of repairing the church
and relieving the poor, and took that charge upon them-
felves. Which third part, together with the altarage (or
portion of oblations and perquifites and fmall tithes in a
manner arbitrary) whjch alfo was commonly referved to
the vicar, made his portion often equal to, if not exceed-
ing that of the convent. But the religious were not long
content with their faid two parts, without ingrolfing the
whole J which they generally did by donation, by pur-
chafe, by exchange, and all the ways of acquifition. So
that in two or three following ages, parochial churches
would have been univerfally annexed and united to religi-
ous houfes, if the bifhops had not provided for the ordi-
nation of perpetual vicarages, and the diilin<^ endowment
of them.

Vol. I. F Anothei;

66 ^pp^opn'at^on.

Anotlier pretext of the religious for obtaining appfofprU
ations was, the confideration of hofpitality ajid charity,
which were intailed as it were upon their two parts of
tithes and ofFerings. They chiefly urged thefe occafipiis^
and promifed to employ the profits this way. In the
charters of donation, they got it alledged, to be for keep.n
ing up the hofpitality of the faid religious houfe, to find,
meat and drink to all that paffed by their gates and would!
call for refrefhment, and for the entertainment of all tra-
vellers and paflengers ; for fuftaining the poor ; for tho
almonry ; for the infirmary ; and for the provifipns of their
houfe ; and even for many other ufes, as, to maintain
fcribes and illuminators to write and adorn their books -^
to bear the charges of holding a general chapter of their
order ; to defray the expences of a journey to Rome ; to
eafe themfelves in the payment of penfions j to rebuild the
fabrick of their conventual church ; and indeed to anfwer
all other occafions that could be ferved by money.

The fc'Ctdars learned this way of gain from the monks j
and thought it as lawful and proper for any of their coUe-
a:iate bodies, as it was for the regular convents. And
therefore they like wife got the churches of their own do-
nation to be converted to their own proper ufes ^ and per-
suaded the neighbouring patrons to come and ofFer up
advowfons on their high altar ; to increafc the number of
their prebends, or to augment the portion of the dean, oi:
of any other principal dignitary ; or to repair their fa-
brick ; or to find lights on their altars ; or for the tablev
of the bifhop ; or indeed for any thing that could contri-
' bute to the grandeur of the cathedral church or fee. Not
that all the churches which are now appropriated to biibops,
or deans and chapters, were the efTeiSl: of thofe fuperfti-
tions : for many of them have been fmcc given in a fad,
exchange for manors and firm lands.

This ill example of appropriating parilh churches
fpread further to all bodies corporate^ however in la^v and
reafon incapable of fuch a tenure. Soliciting and pay
ing the price at Rome procured the like favour for fecular
colleges, for chantries, nay for military orders, for lay
hofpitals, for gilds and fraternities, and even for nunne-
ries. So making knights, lay brothers, and very wo-
men, to be the rectors of parifh churches* Though
this indeed was grounded on a conceit, that all thefe were
religious focicties, and might receive and difi:ribute out
of the common treafury of the church. For before king
Henry the eighth, there was no right or precedent for a
mere lay pcrfon to be an impropriator.

From

i^pmpH^tion. 67

From Gorparations aggregate of many, this example
went on to Jingle perfons ; not only to deans, chantors,
treafurcrs, chancellors, and feparate officers, but at laft
to the parifh priefts themfelvcs, who in populous or rich
places obtained a vicar to be endowed, and cafting upon
him the cure of fouls, they had the re«5lory appropriated
to them and their fucceflbrs as 2iftne-cure for ever.

But, above all, the monks had their various arts of
driving on this trade in holy things. The biftjop of the
diocefe was often their friend and affift^nt in it, bccaufe
he had been perhaps of the fame order ; or was difpofed ta
keep up an intereft in fo great a body of men ; or if they
had no other tie upon him, they fettled a penfion to in-
demnify his fee, or advanced the payment of fynodals, or
offered fome other confideration of intereft : and if at the
l^ft the bilhop would not confent, they could apply to tho
papal legates, or directly to the court of Rome, where
they never failed to have their prefents accepted ; and
fometimes charged themfelves with an annual penfion to
the cardinals, or even to the apoftolical chamber for ever.
They dealt as fubtilly with the patrons^ to extort their
confent ; they promifed them the prayers and fuffrages
of their houfe, with mafTes, obits, anniverfarics, pietan-
ces, and othei: cgmmeraoratioRs. And becaufe, after ail,
by the laws of the land they could not appropriate without
confent of the re3<^ incumbent ; therefore they fometimes
prevailed with him to affume their order, and fo to bring
the church along with him ; or they gave him a penfion
or a corrody for his life, on condition of refigning ; or if
he would not comply, then they obtained leave of the
patron to appropriate in reverfion ; or, to favc the pains
of working on the patron, they purchafed the perpetual
advowfons, on purpofe to appropriate the benefice.

If the fmaller tithes and oblations (the common allot-
ment to a vidar) w^uld not amount to a third fhare j
then fome part of the greater tithe of corn and hay wa^
allowed to make up fuch deficiency; which was the juil
caufe of many vicarages being fo endowed.

The ancient ftate of vicarages was the more tolerable,
becaufe there was not only a confiderable portion for the
vicar, but there was a power lodged in the bifhcp to aug-
ment that portion, whenever it appeared to be infufficient.
This was the known right, and the conftant practice o^^
the Englifli bifhops. Indeed the greater monafteries did ;
oftentimes by exemptions and appeals to the court of Rome
evade and deny this power of the diocefan: in order to

F 2 obviate

68 :^pp;iopj<atiort

obviate which refuge, the bi(hop in his inftrument of con-
fenting to appropriation^ began to exprefs the pofitive
condition of laving a competent portion for a vicar, to
be taxed and ordered by him in due confideration to hof-
pitality and other burdens j and afterwards to be mode-
rated and augmented as (hould feem to the ordinary fit
and proper. But whether this power was explicitly
referved or not, it was thought an antecedent right,
which the biihop might claim from the original conftitu-
tion of the church. And even the common law did allow
and inforce this practice : the year books affirming, that
the ordinary may increafe or diminifh the vicar's portion.
And for any thing which appears upon record ; though
this epifcopal right was too often evaded by refort to the
court of Rome ; yet it was never queftioned in any of
our ecclefiaftical or civil courts before the reformation,
Kennet on Impropriations.

And fo much concerning the original appropriation of
churches : We come next to confider more particularly,
the endowment of vicarages confequent thereupon.

II. Endowment of vicarages upon appropriation. .

Keftriaions by I. By the ftatute of the 15 R. 2. c. 6. In every licence
«atote. to be made in the chancery^ of the appropriation of any parijh

churchy it jhall he exprefsly contained^ that the diocefan of the
flace^ upon the appropriation of fuch churches^ Jhall ordain
according to the value of fuch churches^ a convenient fum of
money to be paid and dijiributed yearly of the fruits and profits
of the fame churches^ by thofe that zuill have thefaid churches
in proper ufe, and by their fuccejforsy to the poor parijhioners
of the faid churches ^ in aid of their living arid fujlenance for
ever j and alfo that the vicar be well and fufficiently endowed.

And by the ftatute of the 4 H. 4. c. 12. From hence-,
forthy in every church appropriated^ there Jhall be a fecular
ferfon ordained vicar perpetual^ canonically injlituted and in-
du5ledy and covenahly endoiued by the difcretionof the ordinary^
to do divine fervice^ and to inform the people^ and to keep
hofpitality there : and no religious Jhall in any wife be made
'Vicar in any church appropriated.

From henceforth'] This ftatute extendeth not to appro-
priations made before this time. 2 RolL Rep, 127.

There [hall he a fecular perfon ordained vicar perpetual] In
the cafe oi B onfey ?ind Lecy T, 1684 s it was decreed,

that

that where there is no vicarage endowed, the impropria-
tor of the fmall tithes is bound to maintain a prieft ; and
upon an information by the attorney general for that pur-
pofe, the king may affign to the curate fuch an allowance
or proportion of the fmall tithes as he fhall think fit : but
otherwife it is, where the vicar is endowed, though but
of never fo fmall a matter, i Vern. 247.

Covenably endowed] So as without endowment, the ap-
propriation was not good. 12 Co, 4.

By the difcrstion of the ordinary'] Before this, It could not
be done but with the confent of t\xt patron ; but there was
no neceiTity of the licence of th^ king (as in the cafe of
appropriation), becaufe no damage accrued to the crown*
2 RqWs Alt, 334.

No religious Jhall in any wife he made vicar in any church
appropriated] But if the benefice was given ad menfam mo-
nachorum^ and fo not appropriated in the common form,
but granted by way of union /)/^??0 7V^ ; in that cafe, it
was ferved by a monk of their own body, who was re-
movable at their own pleafure. Wfiich is the foundation
of fiipendiary curacies^ where the impropriators are bound
to provide divine fervice, but may do it by a curate, not
inftituted, but only licenfed by the bifliop. So the monks
ferved them ; and becaufe the a6ts of diflblution gave the
lands to the king in fuch manner and form as the monks
held them, they who derive from the crown have reckon-
ed themfelves under no reftraint to prefent a vicar to the
bjfhop for inftitution. But though the canon law is clear,
that fuch benefices as were united menfa monachorum
might be ferved by monks, without inftitution ; yet the
law alfo was, that in cafe fuch cures were fupplied by
feculars^ they niuft have inftitution ; and there being now
no fupply but by feculars, it feems to follow, that by
law no benefices cairlje now ferved by ftipendiary curates,
without inftitution : but the received pradice \% otherwife,
Gihf 717.

2. The zSl of endowment by the blfliop might be made, Aa of endovsr.
cither in the a£i: of appropriation, or by a fubfequent a6l"^^'^^*
and a feparate inftrument. Which is mentioned in this
place, that in fearching for endowments in the regiftries
of biftiops, or the court of augmentations, neither the
one nor the other ftiould be neglected ; for altho^ a fepa-
rate a6l or inftrument of endowment may not be found, yet
it is pofTible the endowment may have been made in the
aft of appropriation, (?/^ 719,

F 3 If

o ::app^op?tatfott.

If the body corporate be now in being to which the
church is appropriated, as all the old cathedrals are ; oi i*f
the impropriation were, at the difTolution of the monaf-
tery, given to any cathedral or collegiate church that now
is ; the moll probable place to find th« endowment of it
is in the archives of that church : if not, perhaps it may
be found in the augmentation office. But it is to be feared,
that moft of the endowments are now loft, at leaft to us,
by being carried to Rome at the difTolufion of monaf-
teries. Johnf. 239.
Pcnfion refervcd 3. Upon the making an appropriation, an annual pen-
iTw^'^ nt *^^^"' ^^^^ ^^^ referved to the biftiop and his fucceflbrs, com-
monly called an indemnity^ and payable by the body to
whom the appropriation was made. The ground of which
refervation, in an ancient appropriation in the regiftry of
the archbifhop of Canterbury, is exprefled to be, for a
recompence of the profits which the bifhop would other-
v/ife have received during the vacation of fuch churches,
Gihf. ji().
vicarogr. a dif- 4- ^ vicaiagc by endowment becomes a benefice diftin<3:
tjnci benefice, from the parfonage. As the vicar is endowed with fe-
parate revenues, and is now enabled by the k>w to reco-
ver his temporal rights without aid of parfon or patron ;
fo hath be the whole cure of fouls transferred to him, by
inftitution from the bifhop. It is true, in ibme places,
both the parfon and the vicar do receive inftitution from
the bifliop to the fame church, as it is in the ca.k of Jme-
£ures ; the original of which was thus : The ro<5lQr (with
proper confcnt) had a power to int'i|:le a vkar in hh
church, to officiate under him ; and this was -ofcen idane ;
and by this means, two pcrfons were inftituted to the
fame church, and both to the cure of fouls, and both did
actually officiate. So. that however the redtors of fine-
cures, by having been long cxcufed from refidence, are
in the common opinion dii'charged from the cure of dbuJsj
(which is the reafon of the name); and however the cure
is faid iji the law books to be in them habkualittr only v
yet in ftriclncfs of law, and with regard to tlicLr original
inftitution, the cure is in them aSJualitcry as much as it is
in the vicar. C'/Vy! 719.
r, ,,„,,„. ^. The parfon by makino-thc endowment, acquires the

patronage 01 tlie vicarage. Jhor ni order to the appropria-»
tioji of a parfonage, the inheritance of the advowfon was
to be transferred to the corporation to which the church
was to be appropriated ; and then, the vicarage being de-
rived out ot the parfonage, the parfon of common iJght

mull

muft be patBon thereof. So that if the parfon makes a
leafe of the parfonage (without making a fpecial rcfer-
vatron to himfelf of the right of prcfenting to the vicarage)
the patronage of the vicarage pafleth as incident to it.
But it was held in the 21 Ja. that the pari(hioners may
prefcribe for the choice of a vicar. And before that, ia
the 16 Ja, in the cafe oi Shirley and Und£7'hUl^ it vvas de-
clared by the court, that tho* the advowfon of the vi-
carage of common right is appendant to the rectory, yet
it may be appendant to a manor ; as having been referved
ipecially upon the appropriation. Gibf. 'j'iC),

Sometimes, upon appropriation, the right of prefcnting
the vicar was given to the bifhop, probably to induce his
confent : as appcareth from divers inftances,

6. There were no vicarages at common law : or, in ^'icar only inti-
other words, no tithes or profits of any kind do de jure liptt^o/prSip.
belong to the vicar, but by endowment or prefcription ; tioa.
which cannot be prefumed, but mufi be mewn on the

part of the vicar. For which reafon, the payment of
tithes to the parfon, is prima facie a difcharge agaifift the
vicar. Gibf. 719.

7. The firfi endowment of the vicars cani^ot be pre- Authority of ««-
fcribed againft by the parfon. This w^s adjudged in the """"'"''
cafe of Pringle and Child^ T. 2 Ja, Which original en-
dowments therefore being of fuch authority as no time
can deftroy ; and fuch caufes between parfon and vicar as
relate to them, or depend on them, being alfo cogni-
zable in the fpiritual court: it v/ere much to be wifhed,
fays Dr. Gibfon, for the fake of the poor vicars, that
4iligent fearch were made after them in the eccleljaftica^
|)ffices, and other repositories of records j * in order to

bring

* It may be proper to infert in this place the followihg propo-
sal of a very learned gentleman, who has generoufly undertaken
the execution of the abovefaid plan ; hoping that all who may
have it in their power in any wile to contribute towards the com-
pletion thereof, will communicate what may have come to their
knowledge with refped to any of the particulars: 'vix.

** A propofal for publiibiing a general repertory of the endow-
ments of vicarages :

*• This work is intended for the fervice both of vicars and of
their parifhioners. The former ufually conme into their livings
unacquainted with the particulars of their legal incomes ; moll: of
^'vh'ch are fmall, and many quite infufficient : whence they ate

F 4. fome-

jdowmcnu.

72 ::3pp^opjt<atfoti.

bring to light as many as can pofiibly be found. EfpC-^^
cially, fince it hath been alfo adjudged, that if a vicar

hath

fometimes tempted to demand more than their dues. But, oftncr,
tliey who (hould pay them, take advantage of the ignorance or
doubtfulncfs of their minifter concerning his rights, and refufe to
acknowledge them. If he fubmits to take what they are willing
to allow him, he lives in ftraits and contempt. If he contefts the
matter, his people become prejudiced againll him for fome time,
if not for ever : and there is great danger, that for want of being
able to come at the proper evidences in the caufe, it may be de-
cided the wrong way.

" Now the principal of thefe evidences are old endowments.
For a vicar may demand what his vicarage was endowed with ;
and he cannot demand more, unlefs immemorial ufage gives ground
for a juft prefumption, that there was a further endowment,
tho' not now extant. Therefore difcoveries of endowments will
tend, not only to the right determination of law-fuits, but to the
prevention of them, by ihevving both parties, to what they are in-
titled : and thus will be of common benefit, to the clergy, to im-
propriators, and to the reft of the laity.

'• The moft likely places to find them in, are the regiflries of
the bifhop, or dean and chapter of the diocefe. But, partly by
means of national changes and confufions that have happened,
partly thro' the unfaithfuinefs or negligence of officers, and partly
thro' other accidents j many of the books, belonging to thefe re-
giilries, are loft from thence: and not a few of them, and like-
wife of the chartularies and leiger books of diffolved religious
houfes, in which they recorded, amongft other things, the endow-
ments of their vicarages, are now in various libraries and repofi-
tories, publick and private. A lift of thefe endowments, with
references to the manufcripts in which they are contained,
would certainly be a very ufeful directory to multitudes of per-
fons, who elfe would never know, where to feek for them : An
account, which of them have been printed, and in what works,
may fave both trouble and expence to thofe who defire to confult
them, and even in cafes where no endowments are to be found,
preventing a fruitlefs fearch will be doing fome good.

*' Therefore the editor of this propofal hopes, that the publick
will approve of his undertaking : in which he hath proceeded (o
fair, as to fet down, in alphabetical order, the name, with the
date, of every endowment in the regiftcrs of the fee of Canterbury;
and ail fuch as he hath been able to difcover in the Lambeth,
Cotton, Harleian, and other libraries, or in printed books. He
now p^efumes to requeft, that the feveral bifliops would favour him
with the name?, and dates, of all endowments, which are in their
refpcdlive regilirics; and that the fame affiftance may be given
kini by fucli cf the nobility, clergy, and gentry, as have in their

cuftody

«!-

hath ufed time out of mii^d, or for a long time, to take
particular tithes or profits, he (hall not lofe them, becaufe
the original endowment is produced and they are not
there ; but inafmuch as every bifhop had an indifputable
right to augment vicarages as there was occafion, and
this, whether fuch right was referved in the endowment
or not; the law will prefume, that this addition was made
by way of augmentation. Gibf, 7 20.

8. The lofs of the original endowment is fupplied by Prefcription
prefcription ; that is, if the vicar hath enjoyed this or ^^'c the en
that particular tithe by conftant ufage, the law will pre- ^o^^^^nt is ioft,
fume that he was legally endowed with it ; by the fame
jeafon that it prefumes fome tithes might be added, by
way of augmentation, which were not in the original en-
dowment. Gibf, 720.

<), It is faid, that all compofitions for the endowments ^^'^^ of <ai4ow-
pf vicarag.es (hall be expounded by the judges of the com- '"^'*^**
mop Jawf and if the fpiritual court meddle with that
matter, they are tp be prohibited. Watf, c, 39.

But where the difpute is between re£tor and vicar, be-
ing both fpiritual perfons, it feemeth that the proper cog-
jiizance of the caufe belongeth to the eccleliaftical judge.

And in the cafe of Drake and Taylor j E, 4 G. The vi-
car libelled for tithes of turnips, and laid his title to them
by prefcription and endowment : The defendant pleaded,
that there is a redory impropriate, and that time out of
mind the reftor hath taken tithes of turnips ; and he
moved for a prohibition, and obtained a rule unlefs caufe

cuftody ancient records of any kind, in which endowments of vi-]
carages are entred.

Doftors Commons AND. COLTEE DUCAREL."

Dec. 3. 1761.

After which he fubjoins a lift of above 200 endowments of vi-
carages already difcovered; and a fpecimen of the method he
propofes to follow, as thus,

AcLEY (Line. Dioec.) Vicar, de — — — Ordlnatio vicariae
ccclefiae parochialis de Acleia Lincoln. Dicec. Dat. Oxon. in
fefto S. Michaelis A. D. 1343. (Printed in Kennet'f Parochial
Antiquities, pag, 455. Ex Chartul. S. Fridefwidse .^d, Ch,
Oxon.)

Alboldesuley (Line. Dioec.) Vicar, de ' ■ ■ Ordinatio

vicarize A. D. 136 1, Regift. Johan. Gynewell Epifc. Lincoln.
fol/367, &c.

Ihewed :

74- :3tpp;ropn'at<on»

ihfeWt^ : And it was infifted, that in this cafe both the
|yarties ar6 not ecclefiafticks ; for the libel is againft x
farijhioner^ and it lays a cuftom which is denied, and
tnuft be tried by the common law. But by Parker chief
juftice and the court : The' both parties are not ecclcfi-
Afticks, yet the thing in controverfy belongs either to
htit eccfefiaftick or another ; for either the re£k)r is in-
titled to the tithes or the vicar; and what matter is it to
the parifhioner, who has them? for he can only pay
them to one : This is properly a difpute what belongs to
the vicar upon the endowment ; and that evidence which
will intitle him to a fentence below, will not enable him
XO recover here : And if we fhould grant a prohibition
in order to try the cuftom, yet that will not determine
the queftion upon the endowment ; and therefore we
Ought not to draw them out of that court, which may
properly determine the whole matter. And befides, in
the fpiritual court fifty years make a prefcription, tho*
they will not here. And the rule for a prohibition was
difchargcd. Str. 87.

But the courts of equity do frequently determine upon
the interpretation of endowments.

10. Any words in an endowment being doubtful, fhall
Ftwurablc con- be interpreted by pradtice, and to the advantage of the
ilxu^lion. vicar. So, in the cafe of Barkfdale and Smithy tho' garba

in the common acceptation relates to corn, yet it appear-
ing that the cuftom had been for the vicar to have tithe
hay, this was judged fuiHcient to extend it to tithe hay.
And the fame thing was adjudged in the cafe of tithe
wood, as given by the term altar agta^ upon the fame
foundation of cuftom, in the cafe of Reynolds and Green :
Or if given there under the name minuta decima; cuftom
changes a great tithe, as wood is, into fmall. Upon the
occafion of which cafe, it was fai(!, that the word altara^
glum fliall be expounded according to ufe. And biftiop
^tillingfleet obferved, that in the fettlement of the alta-
rage of Cockrington by Grofthead biftiop of Lincoln,
not only oblations and obventions, but the tithes of wool
and lamb, were comprehended under that name. Gihf^
719,720.

And in the cafe of Franklyn and the mafter and brethren
of iS^ Crofs^ T. 1721 ; it was decreed, that where altara-
glum is mentioned in old endowments, and fupported by
tifage, it will extend to fmall tithes, but not othcrwife,
Bunh, 79.

The

^appjOpn'atl'Otl. 75

, The moft difficult, though moft common -qu^ftion,
that relates to the interpretation of endo'wments, is, what
the vicar fhali have in virtue of the pkra^fe minuta decima*
Gibf. 720.

Where a vicar was endowed to have the third part of
all the tithe corn of fuch a manor \ it was adjudged, that
he ihould have tithes of the freeholders^ as well as -of the
demefnes of the manor. The reafon of the doubt was,
that freeholders ftri6lly fpeaking were not parcel of the
manor, as fuch : But it was refolved, in favour of the
tricar, that the word manor there, fhould fignify the pre-
:in£ls of the manor. And fo, where the endowment is
fo exprefled, that only tithe corn is referved to the par-
fon ; by conftru6lion of law, all the reft falls to the vicar.
2 Rolh Abr. 335.

In the aforefaid cafe of Franklyn ^nd the matter and
brethren of St, Crofs j altho' by the endowment the vi-
car was to find the facrament wine, yet the court were
of opinion it fhould be fourid by the parifhioners accord-
ing to the canon. Bunb, 79.

III. Augmentation of vicarages.

Dr Gibfon fays, it feems to be agreed on all hands,
that the ordinary hath power to oblige fpiritual impropri-
ators to augment vicarages : according to the cafe of
Hitchcot and Thornbitrgh^ H, 9 Car, where the vicar fued
the tenant of the matter of the choiritters of the church
of Sarum (the faid matter being parfon), for addition of
maintenance in the fpiritual court ; and prohibition was
denied, upon this reafon, that the ordinary might compel
the parfon to an augmentation, there being fuch a power
referved to him in all appropriations ; and that the leflee
(who held for lives accoiding to the ttatute of the 32 i5/. 8. )
came in, fubjedl to the^fame charge. G'thf, 722. 2 RoWs
Ahr, 337.

It is true, this was an appropriation which had never
come to the king by any ttatute of dilFolution ; but that
circumftance of having been conveyed to the king, made
no difference with regard to the jurifdiction of the bifhop,
fo long as they were reconveyed to a fpiritual hand, as
appears from the cafe of the dean and chapter of St, Afaph
in the 12 'Ja, And the books, when they pronounce
impropriations lay fees^ feem to ground it wholly upoa
their being in lay hands ; and to mean no more, when
they fay that they become lay fees by the ftatutes of dif-

folutlon

76 :»pp?op;nfati'oti.

Iblution, than that by thofe ftatutes they came into lay'
hands. The only queftion then (he fays) is, concerning
the bifhop's power over lay impropriators, Gibf. 722.
7 Roll. 100.

Before the difiblution of monafteries, the exercife of
ordinary jurifdi6tion in this particular appears beyond alt
.queftion. Then come the a£ls of diflblution, and fay,
that the king Ihall have and enjoy, to him and his heirs
for ever, all and fmgular fuch monafteries and tithes, in
as large and ample manner^ as the abbots held them ; and
clfe where, in the Jlate and condition that they now he -, and
that they who take from the king, fhall have and hold
and enjoy the fame, and have all fuch a£i:ions fuits entries
and the like, in like manner form and condition as be*'
fore : which a£ts of diflblution were founded upon the
furrenders made by the religious into the hands of the
king. Gihf, 722.

From whence it hath been argued ; that nothing could^
come into the king's hands in virtue of the furrenders of
the religious, but what was theirs ; and that the right of
the bifhop to augment, and of the vicar to claim augmen--
tation, was not theirs : That the moft natural conftruc-
tion of the king's enjoying the impropriations in the fame
Planner form andflqte as the religious did, is, that he ftiall
enjoy them with the fame limitations, privileges and bur-
dens, as the religious did : That accordingly, it is granted,
that exemptions from tithes can be enjoyed by the gran-
tees, only while the lands remain in their own hands^ be-
caufe that privilege which was granted to the feveral
orders was not abfolute, but fiih niodo^ to wit, whilft
they were in their own hands : That becaufe reparations
of chancels, payments of curates, proxies, fynodals, and
the like, refted upon the religious appropriator, there-
fore they have always refted upon the lay impropriator:
That (by like conftru£tion) as the religious held thofc
appropriations with the charge of a competent mainte-
nance for the vicar, at the difcrction of the ordinary ; fo
do the lay owners hold their impropriations with the fame
charge : That the meaning of the parliament was not tp"
deftroy the rights of other men, but only to fupprefs the
monks ; That in the feveral ads of diflblution, there
are general favings of rights to all bodies politick and
the like, and particularly, of " portions^ which any may
*' or might have had in or to the premifles, or to any
^' part or parcel thereof, in fuch like manner form and
** "condition, to all intents and purpofes^ as if the fai4

^' acb,

« a£ls had not been made ;*' and therefore, that the vi-
:ar having then a right to a congrua portio (that is, part
3r parcel^ as the ftatutes fpeak) out of the redlory, with
I right to fue the abbot if he denied it j and the bifhop
laving a right to aflign fuch portion, and to inforce the
liloMrance of it by fequeftration and other ecclefiaftical
:enfures ; both the bifhop and the vicar have, thofe rights
efpeclively preferved to them in the faid general favings :
That if it be objected, that thofe claufes of refervation
)f r:ght, do not exprefly mention, either the jurifdidion
)f the bifhop, or the portion of the vicar 5 the anfwer is,
hat neither do they mention the reparation of chancels,
3r payment of the flipends of curates; yet both thefe
burdens, as having refled upon the religious, pafTed from
hem to the king, and from the king to the grantees :
That tho' they are now applied to other ends and ufes,
:han heretofore they were, yet they retain the fame na-
:ure; and if it had not been underflood, that after the
:onveyance into lay hands they ftill remained ecclefiaflical
iuties, they might have been recovered, as other chattels
)r lay fees are, by acSlion of debt or otherwife at com- .
non law, and there had needed no adl of parliament to
mable laymen to fue for them ; nor would the remedy
lave been given in the fpiritual, but mofl certainly in the
lernporal courts. Gibf, 723.

But notwithflanding all this, it mufl be acknowledged,
;hat nothing is more peremptorily delivered throughout
the books of common law, than the contrary do6trine ;
namely, that fmce the difTolution, all impropriations (at
leait in the hands of laymen) are become mere lay fees,
Dr inheritances of a mere temporal nature ; from whence
it is inferred, that therefore all fuch pofTeilions are in-
tirely freed from the fpiritual jurifdi6lion 5 and particu-
larly, that the ordinary hath no power to make augmen-
tLicion of a vicarage, out of any reclory which is in the
hando of a lay impropriator. Gibf. 723.

And even with refpect to fpiritual impropriators, it
may feem from the intire defuetude of the practice, that
the ordinary's power over fpiritual impropriators, to com-
pel them to augment vicarages, is at leall doubtful -, and
the only augmentations that are now made, are either
by private benefa(5tion, or by application of the revenue
" of firfc fruits and tenths by the governors of queen Anne's
bounty, or both.

7S ^^pmoptMion^

• By the ftatute of the 17 C 2. c. 3./ 7. Power is gli
ven to the impropriators of tithes y to unite the fame to the paA
fjsnage or vicarage of the church or chapel where they lie ; o|
to fettle the fame in trujl^ for the benefit of the f aid par fonagtA
or vicar age J or of the curate where the parfonage is impro\
friate and no vicar endowedy without any licence of mortii
TTUiin. ^

Before this fiatute, to wit, in the 12 C 2. foon aftei
the refloration,, a biJl was brought into the houfe of com-<|
mons, forereding and augmenting of vicarages, and hac
a firft reading, . bu.t proceeded, no further ; having, as iji
fuppofed, been fuperfeded and. laid afide (at leafl: foil
that time) in. confideration that the ends propofed ir
it would be in fome degree anfwercd, by his majefty's;
letter to the feveral bilhaps refpe^Slively, the fubftance od:
"whicli is as follawetb : l

*' Our will is, that forthwitli provifion be made fofi
*' the augmentation of all fuch vicarages and cures, where!
" the tithes and profits are apj:)ropriated to you and your
*' fucceflbrs, in fuch manner, that they who immediately:
*' attend upon the the performance of minifterial offices
<c in every parrfh, may have a competent portion out of
*' every rectory impropriate to your fee. And to this
*^ end our farther will is, that no Jeafe be granted of any
'* rcdlories or parfonagcs belonging to your fee, until
" you {hall provide, that the refpeilive vicarages, or cu-
^* rates places where there are no vicarages endowed,
*' have fo much revenue in glebe, tithes, or other emo-
'^ lumcnts, as commonjy will amount to lool. or 80 1.
*' a year, or more if it will bear it j and in good form of
•' law fettle it upon them and their fucceflbrs. And
*^ where the rc«£lorics are of fmall value, and cannot ad-
*' mit of fuch proportions to the vicy and curate ; our
*' will is, that one half of the profit of fuch a rectory be
" rcferved for the maintenance of the vicar or curate, as
'' is agreeable to the faid proportions. And our farther
*' will is, that you do employ your authority and power,
*' which by law belongeth to you as ordinary, for the aug-
*' mentation of vicarages and itipends of curates ; and that
*' you do with due diligence proceed in due form of law
*' for the raifing and eflablifliing convenient maintenance
*' of thole who do attend holy duties in parifh churches.
*' And if any prebendary in any church (the corps of whofe
*' prebend confifts in tithes) fliall not obferve thcfe our
'' comiyiands, then we require you or the dean of the
*' church, to ufc all due means in law, where vou or he

' '^ have

^PP^op^^at^am 79

*« have power to compel theixi ; or that otherwire you.
*' report to the bifhop of the diocefe where the faid corps
" doth lie, that he may interpofe his authority for fulfil-
*' ling this our order. And if any dean, or deau and
" chapter, or any that holdeth any digmty or prebend
•' in the cathedral church, do not obferve thefe oux com-
" mands, that you cajl them before you, and fee this
" our will obeyed." Ken, Par. Ant, -25 3.

And this defiign was the more practicable at that timo^
by reafon of the number and largenef^ Of the fines thai;,
twexe then due. And accordingly, many and large aug^
ipentations were then made. But this was not intended
l^rely for augmentations then to be made at that particu-
lar time, but alfo for the making thereof by the fame
bodies in future times. And to confirm and perpetuate
the fame, the ftatute of the 29 C, 2. £» 8, was made a$
followeth :

JVhereas d'tvfrs archbijhopi^ hijhops^ deans and dapurs^
and other ecdejiajiical perfonSy in obedience to his. majejifs let--
ters hearing date the firjl day ^ June in the twelfth yejar of
his reign^ and out of a pious care to improve poor vicarages
find curacies^ where the endowment thereof was found too fm^ill
to afford a competent mxiintenance to thoje that fgrve the cwe^
have Jince his majeji/s happy return^ upon their renewing of
leafes of reSfories or tithes impropriate or appropriate^ made,
er may hereafter make divers refervations beyond the ancient
renty to the intent the fame J})ould or might become payable to
the faid vicars or curates, in augmentation of their endow-
tOentSy which have been for the mofl part enjoyed accordingly. ;
hut in regard that fuch refervations were not made to the vicar Si
«r curates, or if they were, no convenient remedy could be had
by fuch vicars or curates for the recovery thereof and they
were not at the time thereof capable of taking any intereft to
their own ufe, whereby the faid provifions will depend upon
the good pleafure of the fucceffors, and may in time he difap^.
pointed : Therefore for the ejiablijhment of the fame, it is enr*
a^edy that every augmentation granted or intended to be grant"
edfmce the faid firfl day of June, or which Jhall at any time
hereafter he granted referved or made payable to any vicar or
curatCy or referved by way of increafe of rent to the leffors, hut
intended to be for the benefit of fuch vicar or curate, by any
archbijhopy bijhopy deany provoji, dean and chapter, archdea^
con, prebendary, or other ecclefiafiical corporation perfon or per-
fans whatfoever, fo making the faid refervaiion out of any rec^
tory impropriate qr portion of tithes belonging to them or any of
them refpeSfively, pxdl continue and remain as well during
I the

8o ^mwi^tion*

the continuance ef the ejlate or term upon which the /aid aug^
mentations were granted referved or agreed to he made pay"
able J as afterwards^ in whofe hands foever the faid reSfories
or portions of tithes Jhall he or come ; which re^ories or por-
tions of tithes Jhall be chargeable therewith y whether the fame
he referved again or not\ and the faid vicars and curates re-
fpe^iively are hereby adjudged to be in the aSiual poffejfion there^
of, for the ufe of thenifelves and their fucceffors^ and the fame
pall for ever hereafter he taken received and enjoyed by the faid
vicars and curates and their fuccejfors^ as well during the
continuance of the term or ejlate upon which the faid augmen-
tations were granted^ as afterwards ; and the faid vicars and
curates Jhall have remedy for the fame, either by dijlrefs upon
the re^ories impropriate or portions of tithes charged therewith ^
or by aSfion of debt againjl the perfon who ought to have paid
the fame J his executors^ or adminijlrators ; any difability in
the perfon or perfons, bodies politick or corporate fa granting^
or any difability or incapacity in the vicars or curates, to whom
or for whofe ufe or benefit the fame are granted or intended
to be granted, thejlatute of mortmain, or any other law, cu-
Jiom, or other matter or thing whatfoever, to the contrary not-
withjlanding, f. i, 2.

Provided always, that no future augmentation be con"^,
firmed by virtue of this aSf, which Jhall exceed one moiety
of the clear yearly value, above all reprizes, of the reSfory
impropriate out of which the fame Jhall he granted or referv*
ed, f. 3.

And every archhijhop, bijhop, dean and chapter refpe£lively,
on or before Sep. 29. next coming Jhall make entry in their re-
gijiers refpeSlively, of every augmentation or other agreement,
which Jhall be kept as a record ; and a copy thereof, proved by
witnefies, Jhall be good evidence, whereupon fuch vicars or
curates may recov'er the benefit of fuch augmentation, f. 4, 5.

And if upon the furrender, expiration, or other deter?nina-
tion of any leafe wherein fuch augmentation hath been or Jhall
he granted, any new leafe of the premiffes or any part
thereof Jhall hereafter be made, without exprefs continuance of
the faid augmentation \ every fuch new leafe fimll be utterly
void, f%, '

And if any queftion Jhall arife concerning the validity of fuch
grants, or any other matter or thing in this aSf contained ; fuch
favourable conftru^ions^ and fuch further remeij, if need be^-
Jhall be had and madcy for the benefit of the vicaYs and curates^
as may be had for other chariiabl;^ iifes^ upon thejiututis^ for
charitable ufes, / 7.

By'

By the ftatute of the 12 Jn. fcjf, i. r. 4. provifion
is made for the augmentation of imall livings in the
PFeJi Riding of the county of Tork^ by inclofmg of
walks therein.

IV. Vicarages how diffolved.

Vicarages tho' duly created, and of long continuance,
might be diffolved. The great cafe in v^^hich this point
came under confideration, was that of Britton and Wade^
M, 16 J a. An appropriation had been made in the
time of king John, and fo continued till the reign of Hen. 6.
when upon the prior's petition to the pope, in regard the
priory vi^as poor, the pope granted by his bulls, that for
the future the prior fhould appoint one of his monks to
officiate in the cure, who fhould be removable at the will
©f the prior. And this was held to be a good difiblution ;
bccaufe the appropriation, having been made before the
,15 ^- 2. and 4 H, 4. was not within thofe ftatutes. But
Doderidge and Haughton juftices held, that if the appro-
priation had been within the faid ftatutes, neither pope
nor ordinary could have diffolved the vicarage ; for if they
could be fuppofed to have that power, the great defign of
the ftatute of the 2 H. 4. (namely to have a vicar perpe-
tually incumbent) might be defeated at pleafure. And
tho' fuch a power of diffolution were fuppofed to be con-
fiftent with that ftatute, it feems by no means reconcilable
.with the difablirig ftatute of the 13 EL c. iC. againft .
the granting or conveying the poffeffions of vicars, as
,. Well as of others, in any other manner than that ftatute
•diredls. Glbf 720.

But notwithftanding thofe two ftatutes, and the opi-
nions of the two learned judges aforefaid; when the cafe
oi Parry and Banks was brought into the exchequer, in the
^twelfth year of the fame king, where a vicarage was en-
dowed upyon an appropriation to the dean and chapter of St.
Afaph, and in the 24 Eliz. was diffolved by the biftiop, and
united to the redlory, it was held by the barons that the
diffolution was good ; becaufe the appropriation being to
the dean and chapter, and fo remaining in a fpiritual hand
which was capable of the cure, it might well be diffolved.
And this appropriation being one of thofe which came
into the king's hands in the 31 H. 8. and by the king
transferred to the dean and chapter; the court further
refolved that if the impropriation had become a lay
fee, in the hands of a temporal poffeffor, the vicarage
Vol. I. G could

82 :^pp?op^i'ati'ott.

could not have been diflblved, becaufe that would be in
effect to deftroy the cure. Gibf. 720.

Two things more are delivered in the books of common
law, concerning difTolution of vicarages, and the union
thereof to their re6tories : i. That tho' a vicarage is ta-
ken out of the parfonage, and (for the poverty and ne-
ceffity thereof) may be difTolved and reunited, to fupply
the parfonage ; yet the not prefenting for a long time (as
for 160 years, which w^as the cafe in the books) fhall not
be a difcontinuance of the vicarage ; but fomething ought
to be fliewn of the a<5l of reuniting. 2. If a vicarage is
to be dilTolved into a parfonage prefentative, the king's
licence is not neceflary, becaufe no lofs accrues to the
crown ; but if it is to be diflblved into a parfonage ap-
propriatory, there muft be the king's licence, becaufe he
for ever lofedi his title of lapfe. Gibf. 720.

If the parfon appropriate who is patron of the vicarage
of the fame church, doth prefent the vicar to the parfon-
age, this is a reunion of the vicarage to the parfonage, fo
that the prefentee fhall have all the tithes and other pro-
fits of the church, l^atf. c. 17.

The ufual form of the endowment of a vicarage
was to this effect :

jNiverf.s Chrijii fidelibus prafens fcrlptufn v'lfurls vel audi"
iuris ; Robertus penmJ/io;ie dlvi?ia Carliolenfis ecclejia
mlmjler humil'is^ falutem in domino fempiternam. Cum nos
iidtaxationem perpetua vicaria ecclefia de Orton nojlra diocefeos
vocati^ priori et conventui eccleftee de Cunningfhed pradiSla
ecclcficE re^oribus quod taxationi pradiSia inter ejfent^ fi fi^^
%'iderent expedire^ authoritate apoJioUca pracepijfemus ; ac fu^
per 'valorem pradi^^s ccclefia eadem authoritate per viros fide
dig nos ad hoc j urates et exa?ninatQs plenarie inqutfitiones fecijfe-
jnus \ pradiSius prior pro fe et conventu fuo in prcefentia nojira
conjlitutus^ quoad iaxationem preBdi^am ordiriaiioni noJlra tO"
talitcr fe fubmifit. Nos igitur invocata fpiritus fan5ii gratia^
pradi^tis facultatibus penfatis pradiSia ecclefia^ authoritate
pradi^a^ in pr^cdi^a ec defies vicar iam perpetuam taxamus
quatuor libras et quatuordedm folidos. Pro pradiiia futnma
pecuniis^ perpetua: affignamus eidem vicarice portiones inferius
firiptas J videlicet^ duas manfiones^ cwn duabus bovatis terra^
cinn omnibus earnndcm eafnioitis l^ pcrtineyitibus omnimodis
infra villam \Sf extra ^ ad eafdetn manfiones cuin duabus bovatis
tirr<e ad ipfas fpeSJantibus^ qucv propinqtdores funt ecclejia
pTctdiJfa i ct omncs obvcntififics^ mortuaria viva et mortua^ et

iorum

iorum optima vejiimenta ; ohlationes^ videlicet^ die omnmn
fanSiorum, die natalis domini^ die purificationis heata Mariae,
et die pafchatis ; in nuptiisy ohitibiis^ purificationibus^ et in
omnibus aliis devotionibus diSia ecdeficc provenientibus , nee non
Una et agnorum^ et ft oves et agni ante fejlum fanSii Martini
In hyeme non tondeantur^ vel poji diSfum fejium quovis cafu
fortuito moriantur^ decima folvantur debit 0 modo et exigantur-y
lini^ et cannabis^ et molendinoriim^ et alias minutas decijnas
hofcorum^ pannagii fyharum^ et aliarum arborum ft vendan-
tur^ Jiagnorum^ columbar iorum ^ hortorum^ turborum in locis
quibus fodiuntur^ aucarum^ et anatum^ ovorum^ et pullormuy
nee non porcellorum^ apium nicUis et ccrcSy artificiorum^ nego-
tiationum^ nee non ftipendiorwn^ et omnium proventuum rerum
ftliaru?n^ de catero fatisfaciant ecclefta: prcediSics competent er^ ut
de jure teneantur ; et etiam decimas garbarum pradi£larum
duarum bovatarum terra pradidla vicar i a ajjignatarum, (Ex-
ceptis decimis albis pullinorum et vitulorum-i decima fceni, nee
non et decima propriorum omnium pradi£ii prioris et convcntus
in pradi£fa parochia exijlentium^ cui quas re^ori volumus af-
Jignari,) Ita quod vicarius qui pro tempore fuerit omnia oner a
ordinaria et exiraordinaria pro portione ipfi contingente^ vider
licet, pro tertia parte^ plenarie fujliiiebit. Ipfo vero vicario
cedente vel decedente^ pradiSli prior et cgnventus liberam ha-
heant facultatem ad eandem vicariam clericum idoneum pra^
fentandi. In cujus ret tejlimonium prafenti fcripto figillum
noflrum apponi fecimus ; datum apud Rofam feptimo idus
April is, anno domini millejimo ducentejimo fexagejimo tertioy et
pontificatus nojlri anno quinto.

The law concerning the refidence of vicars upon their
benefices, is inferted under the title UcRUCUCf*

Aquas-bajalus. See PaililjClCrfe*
.Archbilhops. See OSlfljOpSf.

G 2 %xi\y^

84-

:^ttl)t)eacon«

FOR leafes made by archdeacons, as fole corporations,
fee title ^tak?.

Origin of »rch- I. As deacons werc all originally the attendants and
dcacoas. fervants of their feveral biihops in church affairs ; fo it is

certain, that about the end of the third century, there
was in feveral diocefes one chofen out from among the
reft, who had the title of archdeacon : and by degrees this
office became univerfal y and they who had it, being al-
ways near the bifhop, fo improved their advantage, that
in procefs of time they began to fhare with the bifhop
in his authority. John/. 57. Gihf. 969.

But as the archdeacons, in their original inflitution,
had no relation to the diocefe, but only to the epifcopal
fee ; fo it was by feveral fteps and degrees that they at-
tained to the power they now enjoy. At their firft in-
ilitution, their proper bufmefs was, to attend the bifhop
at the altar, to direct the deacons and other inferior offi-
cers in their feveral duties for the orderly performance of
divine fervice, to attend the bifhop at ordinations, and to
affift him in the management of the revenues of the
church 'y but without any thing that could be cafled ju-
rifdi6tion in the prefent fenfe of the word, either in the
cathedral or out of it. Gibf. 969.

All that while, the choreptfcopi had the Infpedlion, un-
der the bifhop, of the clergy in the country, and of thofe
parts of the diocefe which were remote from the epif-
copal fee ; till in the council of Laodicea, in the year
360, it was ordained, that no bifliops fhould be placed in
country villages, but only itinerant or vifiting prefbyters.
But the archdeacon, being always near the bifhop, and
the perfon mainly intruded by him, grew into credit and
power, and came by degrees (as occafion required) to
be employed by him, in vifiting the clergy of the diocefe,
and in the difpatch of other matters relating to the epif-
copal care : So that by the beginning of the feventh
century, he feems to have been fully poflefTed of the
chief care and infpecClion of the diocefe, in fubordinatioa
to the bifhop. Gihf. 969.

But this is to be underflood with a twofold diftindlion

from the prefent ftatc and meafure of archidiaconal power:

vi. That he was emplo^'cd generally throughout the

a. 4 • diocefe.

Zttf^ntHtori' 85

dJocefe, at the plcafure of the bifhop. Such an archdca-
Hcon John de Athon calls the general archdeacon, who
hath not an archdeaconry diftin6tly limited, but fupplicth
the place of the bifhop as his vicar univerfaljy ; by way
of diftindlion from that archdeacon, who hath a diftindl
limitation of his archdeaconry, and a feparate jurifdi6tion
from that of the bifhop. And the firfl of thefe is the
archdeacon, that we find defcribed in the body of the
canon law. 2. That the power of the archdeacons, tn
that ancient flate, was chiefly a power of inquiry and in-
fpe6tion ; which Lindwood calls a fimple inquiry, where
he fays, that of common right the archdeacon hath power
of vifitation by way of fimple inquiry, as the bifhop's
vicar ; but in fuch inquiry he hath no power to make
corre6lions in his own name, except in fmallcr matters,
unlefs cuflom give him that power. The like do(Slrine,
to that which had been delivered long before by John of
Athon : Of common right, faith he, the archdeacons
have no power to ufurp the greater matters to themfelvcs
but only to report or intimate the fame to the bifhops,
Beyond this, all the rights that any archdeacon enjoys
of what kind foever they be, fubiifl by grants from th
bifhops ; either made voluntarily, to enable archdeacon
to vifit with greater authority and efFe6l ; or of, necefJity,
as claimed and infifled on by archdeacons, upon the foot
of long ufage and cuftom. But whatever might be the
motive to thefe concefllons on the part of the bifhops ; it
feemeth that the powers enjoyed by archdeacons, beyond
that which they claim of common right, accrued to
them by exprefs grant or compofition (however the evi-
dences may be lofl) ; it being hard to imagine, how deans
and chapters, archdeacons, or any other perfons, fhould
be allowed to prefcribe againft a bifhop, for any branches
of epifcopal jurifdi6lion, and much more for an exemp-
tion from it. Gihf. ^^69, 970.

But in virtue of fuch grants, and of inflitution to the
office they are annexed to ; not only the jurifdiclion he
enjoys is in the eye of the law ordinary jurifdicftion, as
being in reality a branch of epifcopal power, but he him-
self is properly ordinarius^ and is recognized as fuch by
the books of common law, which adjudge an adminiflra-
tion made by him to be good, tho* it is not exprefTed by
what authority, becaufe as done by the archdeacon, it is
prefumed to be ^on^ jure ordinario, Gibf. 970.

As to the divifions of diocefes into archdeaconries, and
the afTignment of particular divifions to particular arch-

G 3 deacons ;

86 :5(rdiucacon.

deacons ; this is fuppofed to have begun a little after the
Norman conqiiell; when the bilhops, as having baronies,
and being tied by the conflitutions of Clarendon to a
ftridl attendance upon the kings in their great councils,
were obliged to larger delegations of power for the admi-
niftration of their diocefes, than till that time had been
accuftomed. Gihf. 970. i JFarn. 275.

For in the charter of William the conqueror, for ap-
pointing the cognizance of ecclefiaflical caufes in a diftindl
place or court from the temporal, the archdeacon is men-
tioned in his ancient general flate as the bifhop's vicar;
where it is faid, that " no bifhop or archdeacon fhall
*' any longer hold pleas in the hundred concerning epif-
*« copal matters." And as this charter did eftablifh what
we call the confillory court of the bilhop in every diocefe j
fo it did enable the bifhop by degrees to aiHgn to par-
ticular perfons what (hare of epifcopal jurifdi61:ion he
thought fit, to be excrcifed archidiaconally within the
diflricls by him appointed. And as this exercife, by long
ufao;e, grew into a claim \ fo thofe claims, ftifly main-
tained on the part of the archdeacons, ended in compofi-
tions. Which faid aflignment of particular powers to
particular perfons, within their proper diftricls, put an
end to the general capacity of archdeacons, as vicars ge-
neral throughout the whole diocefe ; and made way for
thofe officers, who are known in our provincial constitu-
tions, and the glofTes upon them, by the names of vicar
general, official, and chancellor to the bifhop ; and who
are vefled with a delegated power to exercife, in the place
of the bifiiop, all fuch jurifdiclion as hath not been
granted away to others, or that he hath not in the com-
miffion rcferved to himfelf. Gibf, gyo,
,How appointed. 2. Archdeaconries are commonly given by bifhops,
who do therefore prefer to the fame by collation : But if
ail archdeaconry be in the gift of a layman, the patron
doth prcfent to the bifliop, who inflitutes in like manner
as to another benefice ; and then the ucan and chapter do
induct him, that is, after fome ceremonies place him in a
{lall in the cathedr.:! church to which he belonc^eth,
whereby he is faid to have a place in the choir, ffatf, c.

Archdeacons by the i ;j «lj 14 C 2. c*. 4. are to read
the common prayer and declare their aHent thereunto, as
other perfons admitted to ecclefiaflical benefices ; and ai-
fo mull fubfcribe the fame before the ordinary; but they
arc liot obliged by the 13 Eliz, to fubfcribe and read the

thirty

:^tc!jtieacoti. ^]

thirty nine articles ; for altho' an archdeaconry be a be-
nefice with cure, yet it is not fuch a benefice with cur&
as feems to be intended by that ftatute, but only fuch
benefices with cure as have particular churches belonging
tQ them. Watf. c. 15.

And they are to take the oaths at the feflions, as other
perfons qualifying for offices.

3. By the canon law the archdeacon is flyled thehljhop's Their general
.eye\ and hath power to hold vifitations (when the bifhop power.
is not there) ; and hath alfo power under the bifhop of
the examination of clerks to be ordained, as alfo of in-
llitution and induftion ; likewife of excommunication,
injunction of penances, fufpenfion, correction, infpecting
and reforming irregularities and abufes among the clergy ;
^nd a charge of the parochial churches within the diocefe :
In a word, according to the practice of, and latitude gi-
ven by the canon law, to fupply the bifhop's room, and
(as the words of that law are) in all things to be the
bifliop's vicegerent. God. 61.

In general, the archdeacon's jurifdi£tion is founded on
immemorial cufloni, in fubordination to the bifhop's ;
and he is to be regulated as to his dignity office and power,
according to the law ufage and cuftom of his own church
and diocefe. i StilL 238. God. 64.

For in fome places the archdeacons have much greater
power than in others. As in the diocefe of Carlifle ; the
archdeacon hath no jurifdi6tion : but he retaineth flill that
more ancient right, of examining and prefenting perfons
to be ordained, and of indudting perfons inflitutcd.

4. The judge of the archdeacon's court (where he doth Archdeacon*i
not prefide himfelf) is called the official. Wood Com. L, ''^^'^^'

]}. 4. c. I.

5. By the flatute of the 24 H. 8. c. 12. An appeal Appeal.
lieth from the archdeacon's to the bifhop's court.

M, 8 JV, Rohinfon ^nd Godfahe. Upon motion for a
prohibition to ftay a fuit in the bifhop's court, upon fug-
geftion that the party lived within a peculiar archdea-
conry ; it was refolved by the court, that where the arch-
deacon hath a peculiar jurifdidtion, he is totally exempt
from the power of the bifhop, and the bifhop cannot enter
there, and hold court ; and in fuch cafe, if the party who
lives within the peculiar be fued in the bifhop's court, a
prohibition fhall be granted 5 for the ftatute intends that
no fuit fhall be per faltum : But if the archdeacon hath
<i0t a peculiar, then the bifhop and he have concurrent
jurifdidion, and the party may commence his fuit, either
G 4 in

88 :^tcl)ueacotti

in the archdeacon's court or the bifhop's, and he hath
election to chufe which he pleafeth : And if he commence
in the bilhop's court, no prohibition fhall be granted;
for if it fhould, it would confine the bifliop's court to
determine nothing but appeals, and render it incapable of
having any caufes originally commenced there. L. Raym,

TH E perfon who adminlflers juftice in the court of
arches, is the official principal of the archbifhop ;
who was called officialis de arcubus, and the court it felf
curia de arcubus, or Bow-church (fo called from the
ileeple being raifed at the top with ftone pillars archwife) ;
by reafon or the archbifhop's having ordinary jurifdidlion
in that place, as the chief of his peculiars in London j
and being the church where the dean of thofe peculiars
(commonly called the dean of the arches) held his courts.
And becaufe thefe two courts were held in the fame place^
and the dean of the arches v/as ufually fubflituted in the
abfence of the official while the offices remained in two
perfons, and thp offices themfelves have in many inftances
been united in one and the fame perfon, as they now
remain ; by thefe means a wrong notion hath obtained^
that it is the dean of the arches, as fuch, v/ho hath ju-
rifdidtion throughout the province of Canterbury ; where-
as the jurifdiclion of that office is limited to the thirteen
peculiars of ^\}e archbifnop in the city of London ; and
the jurifdicSlIon throughout the province, for receiving of
appeals, and the like, belongs to him only as official prln-
cipal. Gibf, 1004. J^^^f' 257.

In like manner the right of jurlfdidlion in every diocefe
of the province, during the vacancies of the fees, tho'
veiled by patent In the fame perfon, belongs not to him
as dean of the arches, but a§ vicar general of tjie arch-»
bifhop. Gibf. 104.

And the fame perfon is like^Ife judge of the peculiars,
that is, of all thofe parifhes, fifty feven in number, which
tho' lying in other dioccfes, yet are no way fubje^l to the
biiliop or archdeacon, but to the archbifliop, John/,
257.

, . ., ^ This

/*^This court of the arches is very ancient, and fubfifted
Jong before the time of king Henry the fecond ; for Alex-
ander the third, then bifhop of Rome, did by his edi6l:
to the dean of the arches and Robert Kilvvarby then arch-
jbifhop of Canterbury, abrogate and abolifh the then an-
cient ftatutes of this court, and fet up others in their
ilead ; and it was there faid, that thofe ancient ftatutes
were then by length of time become not legible. Con^
fet, 4.

This court (as alfo the court of peculiars, the admi-
ralty court, the prerogative court, and the court of dele-
gates for the moft part) is now held in the hall belong-
ifig to the college of civilians, commonly called dodlors
commons, Floy, 21.

From this court the appeal is to the king in chancery ;
by the 25 H, 8. c, 19.

THE archtprejhyter was fo called, becaufc he was in
fome certain matters and caiifes fet or appointed
over the pricfts or prejbyters^ and fuch as were of the fa-
cerdotal office ; efpecially in the abfence of the bifhop.
Cod. Rep, Can, 56.

; And by the canon law, he that is archiprefbyter is alfo
called dean, id.

^rreft in the church or church-yard. See CSUtCft*

attfties.

'•T"v

E thirty nine articles were mainly founded '^^* ^^^'^x °*'"
upon a body of articles compiled and publifhed ' * *

in the reign of king Edward the fixth.
.: They were firft paffed in the convocation, and con-
firmed by the royal authority, in the year 1562.

Then they were afterwards ratified anew in the year
J 57 1, in the following form; which form is printed at
tJ^e end of the faid articles, and is that fame ratification

which

go :^ttitltS'

which is referred to by the 36th canon hereafter mention-
ed ; viz. '' This book of articles before rehearfed, is
*' again approved, and allowed to be holden and executed
** within the realm, by the alTent and confent of our
** fovereign lady Elizabeth, by the grace of god, of
*' England, France, and Ireland, queen, defender of
•* the faith, and fo forth. Which articles were deliber-
*> ately. read, and confirmed again by the fubfcription of
*' the hand of the archbifliop and bifhops of the upper
*' houfe, and by the fubfcription of the wfiole clergy of
*' the nether houfe in their convocation, in the year of
" our lord 157 1."

Then they were again ratified by king James the firfl,
in thefe words, which are commonly prefixed to the faid
book of articles ; viz. *' Being by god's ordinance, ac-
*' cording to our juft title, defender of the faith, and fu-
*' preme governor of the church, within thefe our domi-
** nions ; we hold it moft agreeable to this our kingly
*' office and our own religious zeal, to confervc and
*' maintain the church committed to our charge, in the
** unity of true religion and in the bond of peace, and
*' not to fuffer unneceflary difputations, altercations, or
*^ queftions to be raifed, which may nourifh fadlion both
*' in the church and commonwealth. We have there-
*' fore upon mature deliberation, and with the advice of
*' fo many of our bifhops as might conveniently be called
*' together, thought fit to make this declaration follow-
«' ing:

" That the articles of the church of England (which
*' have been allowed and authorized heretofore, and
** which our clergy generally have fubfcribed unto) do
** contain the true doctrine of the church of England,
** agreeable to god's word -, which we do therefore ratify
*' and confirm, requiring all our loving fubjccSls to con-
'' tinue in the uniform profcfTion thereof, and prohibiting
*' the leaft difference from the faid articles, which to that
*' end we command to be new printed, and this our de-
" claration to be publifhed therewith :

" That we are fuprcme governor of the church of Eng-
" land ; and that if any difference arife about the exter-
*' nal policy, concerning injunctions, canons, and .other
*' conftitutions whatfocvcr thereto belonging, the clergy
<' in their convocation is to order and fettle them, having
*' firft obtained leave under our broad fcal fo to do, ana
*' we approving the faid ordinances and conftitutions ;
" providing that none be made contrary to the laws and
^' culloms of the land ;

" That

l^ttitltS* 91

<« That out of our princely care that the churchmen
^^ may do the work which is proper unto them, the bifh-
<' ops and clergy from time to time in convocation, up«
*« on their humble dcfire, fhall have licence under our
" broad feal, to deliberate of, and to do all fuch things,
" as being made plain by them, and aflented unto by us,
" (hall concern the fettled continuance of the do<5lnne
" and difcipline of the church of England now eftablifh-
^* ed, from which we will not endure any varying or
*' departing in the leaft degree :

" That for the prefent, though fome differences have
" been ill raifed, yet we take comfort in this, that all
** clergymen within our realm have always moft willing-
*' ly fubmitted to the articles eftablifhed, which is an
'' argument to us, that they all agree in the true ufual
" literal meaning of the faid articles, and that even in
** thofe curious points in which the prefent differences
•* lie, men of all forts take the articles of the church of
" England to be for them ; which is an argument again,
** that none of them intend any defertion of the articles
« eftablifhed :

" That therefore in thefc both curious and unhappy
*• diflercnces, which have for fo many hundred years in
*' different times and places exercifed the church of Chrift,
** we will that all further curious fearch be laid afide,
*' and thefe difputes fhut up in god's promifes as they be
*' generally fet forth to us in the holy fcriptures, and the
*' general meaning of the articles of the church of Eng-
*' land according to them ; and that no man hereafter
'* fhall either print or preach to draw the article afide any
*' way, but (hall fubmit to it in the plain and full mean-
*' ing thereof, and fhall not put his own fenfe or com-
*' ment to be the meaning of the article, but fhall take
** it in the literal and grammatical fenfe :

" That rf any public^ reader in either our unlverfities,
*' or any head or mafter of a college, or any other per-
" fon refpe6tively in either of them, {hall alHx any fenfe
** to any article, or fhall publickly read determine or
*' hold any publick difpucation, or fuffer any fuch to be
«' held either way, in either the univerfities or colleges
«^ refpe6lively ; or if any divine in the univerfities fhall
« preach or print any thing either way, other than is
*' already eftablifhed in convocation with our royal
** afl'ent ; he or they the offenders fhall be liable to our
" difpleafure, and the churches ccnfure in our com-
*' milfion ecclefiaflical, as well as any other; and we
*' will fee there fhall be due execution upon them."

2. By

92 l^tticUS'

To befubfcribed 2. By the 1 3 EL c. 12. None fliall be admitted to the
by perrons to be ^ ^f dcacon, unlcfs hc fliall firft fubfcribe to the faid

ordain d deacons, . , /• •

articles. 1. 5.
- 3. And by the fame flatute ; none fliall be made mini-

bJ ordained fter, or admitted to preach or adminlfter the facraments,
priefts. unlefs he firft bring to the bifliop of that diocefe, from

men known to the bifliop to be of found religion, a tefti-.
monial of his profefling the do6lrine exprefled in the faid
articles, nor unlefs he be able to anfwer and render to the
ordinary an account of his faith in latin according to the
faid articles, or have fpecial gift or ability to be a preach-
er ; nor unlefs he fliall firft: fubfcribe to the faid articles.

By perfons to be 4. By Can, 36. No perfon fliall be received into the
admitted to be- miniftry, nor either by inftitution or collation admitted
ncficej, ^^ ^j^y ecclefiaftical living, nor fuffered to preach, to

catechize, or to be a le6turer or reader of divinity in
either univerfity, or in any cathedral or collegiate church,
city, or market town, parifli church, chapel, or in any
other place, except he fliall firft fubfcribe to this article
following; viz. That he alloweth the book of articles
of religion agreed upon by the archbiftiops and bifliops of
both provinces, and the whole clergy in the convocatioi^
holden at London in the year of our lord god one thou-
fand fLVt hundred fixty and two ; and that he acknow-r
ledgeth all and every the articles therein Contained, being
in number nine and thirty, befides the ratification, to be
agreeable to the word of god.

And by the ftatute of the i^ EI. c 12, No perfon
Ihall be admitted to any benefice with cure, except he
fliall firft have fubfcribed the faid articles in the prefence
of the ordinary > and all admiftions to benefices of any
perfon contrary to this acl, and all difpenfations, quali-
fications, and licences to the contrary, fliall be merely
void in law, as if they never were. f. 3, 7.

The faid articles] It hath been doubted by fome, what
articles are here meant, namely, whether all the 39 arti-r
cles, or only fuch of them as are in this a(Sl above fpe^
cified. The cafe is this : The a£l: requires firft of all,
that every perfon under the degree of a bifliop, pretend-
in »■ to be a preacher or minifter by reafon of any other
form of inftitution, confecration, or ordering, than the
form fet forth in the time of Edw. 6. or then ufed, fliould
before Dec. 25. then next following, declare his aflent
and fubfcription to all the articles of religion, which. only

:at«c!etf. 93

ancern the confejfton of the true faith and the doSfrlne of the
ij; facraments^ comprized in a book imprinted, intitled,
** Articles, whereupon it was agreed by the archbifhops
<* and bifhops of both provinces, and the whole clergy,
.** in the convocation holden at London in the year
" 1562," &c. After which follow the feveral claufes re-
quiring fubfcription to the faid articles in time to come j
and the queftion is, whether to the whole book of arti-
cles, or only to fuch of them as concern only the confejfton of
the true faith and the doctrine of the jacramenis^ for thefe
only were required in the former part of the a6l. And
there is a remarkable pafTage in D' Ewe's Journal, p. 239.
which explains the aforefaid claufe requiring aflent and
fubfcfiption to fome of the articles, and not to all. Mr.
Peter Went worth, in a fpeech in the houfe of commons,
inveighing againft a melTage of the queen to the houfe,
that they Jhould not deal in any matters of religion , hut firji to
receive from the hijhops (for which fpeech he was afterwards
fcnt to the tower), expreffeth himfelf thus : *' I have
*' heard of old parliament men, that the banifhment of
*' the pope and popery, and the refloring of true religion,
*' had their beginning from this houfe, and not from the
" bifhops. And I have heard, that few laws for religion
*' had their foundation from them. And I do furely
** think (before God I fpeak it) that the bifhops were
** the caufe of that doleful mefTage ; and I will fhew you
** what moveth me fo to think. I was, amongfl others,
** the lafl parliament, fent unto the bifhop of Canter-
*' bury, for the articles of religion that then pafTed this
** houfe. He afked us, why we did put out of the book
•' the articles for the homilies, confecrating of bifhops,
*' and fuch like ? Surely, Sir, faid I, bscaufe we were
*' fo occupied in other matters, that we had no time to
•* examine them how they agreed with the word of god.
*' What, faid he, furely you miflook the matter; you
*^ will refer your felVes wholly to us therein ? No, by
*' the faith I bear to god, faid I, we will pafs nothing
** before we underftand what it is 3 for that were but to
*' make you popes ; make you popes who lifl, faid I,
*' for we will make you none. And fure, Mr. Speaker,
** the fpeech feemed to me to be a pope-like fpeech ; and

I" I fear left our bifhops do attribute this of the pope's
** canons unto themfelves. Papa non poteji errare." — •
However, in pra<5tice it feemeth to have been generally
underftood, that the fubfequent claufes in the adi:, re-
quifing fubfcription in time to come to the faid articles,

94^ ZttitltS.

Bv tb? heads of

do refer to the whole book of articles abovementioncd,
aiid not to thofe only which were at that time required
to be aiFented to M\d fubicribcd. For there is no other
ad: of parliament that injoins the fubfcription of pcrfons
admitted to beneiices. The act of uniformity- o( the
13^' 14 C. 2. c. 4. doth not extend to them in this re-
Ipec't ; but feemeth to fupjx)re that their fubfcription was
fufliciently provided for before,

5. By the 13 ^ 14 C 2. c. 4. Ever}' govej-noror head
«11mcs^'^"* ^* ^* ^^y <^ollcgc or hall in cither of the univerfities, or of

the colleges of Wellminfter, Winchefter, or Eaton, fhall
within one montli next after his ele£lion or collation and
admilfion into the tame government or headfhip, openlv
and publickly in the church chapel or other publick place
of the fame college or hall, and in the prefence of the
fellows and fcholars of the fame or the greater part of
them then refident, fubfcribe unto the 39 articles, and
declare his unfeigned alVent and confent unto and appro-
bation thereof; on pain to lofe and be fufpcnded from all
the benefits and profits belonging to the fame government
or headfhip, by the fpace of fix months, by the vifitor or
vifitors of the fame college or hall ; and if fuch governor
or head io fufpended for not fubfcribing, fhaJl not at or
before the end of fix months next after fuch fu ipenfion
fubfcribe unto the faid articles, and declare his confent
thereunto as aforefaid, then fuch government or headfhip
ihall be ipfo iiiclo void. f. 17.

6. By CV/i. 127. No man fhill be adm: ted a chan-
offidals. and cellor, commiiTan', or official, except before he enter

larKs. '^^^^ ^^ execute fuch oifice, he ihail take the oath of fu-
premacy before the bifliop or in open court, and fubfcribe
to the 39 articles ; the faid oath and fubfcription to be
recorded h\' a regiiler then prefent.

7. Bv the fame Itatute of the 13 Cr 14 C 2. r. 4. No
perfon fhall be received or allowed to preach as a ledlurcr,
unlefs he be firil approved, and thereunto licenfed, by
the archbilhop of the province, or bifhop of the diocefe,
or (in cafe the fee be void) ,bv the guardian of the fpi-
ritualties ; and fhall, in the prefence of the faid archbifhop
or bifliop or guardian, read the 39 articles, with decla-
ration of his unfeigned ;iirent to the fame. f. 19.

Bt oirttes to be 8- ^y ^^^ ^3 ^^* '• ^^* Curates admitted to any be-
liceokdt nefice with cure (as all perpetual curacies and chapels

augmented bv the governors of queen Aime*s bounty are).

iholl fubfcribe the 39 articles in prefence of the ordinary.

9. By

By chancel:

or?.

By k£hjrtn.

9. By Can. 77. Nomanfliall be admitted fchoolmafler, % fchool-
except he fubfcribe to the firft and third articles in the "^*^^"«
thirty fixth canon, concerning the king's fupremacy, and

the 39 articles, that he acknowledgeth them to be agree-
able to the word of god.

10. By the I fV, c. 18. DifTenting minifters and teach- % diflenting
ers are to declare their approbation of and to fubfcribe pr^chm^*^
the faid articles, except the 34th, 35th, and 36th, and

part of the 20th (and in the cafe of anabaptifts, except
alfo part of the 27th) ; otherwife they fhall not enjoy the
privileges benefits and advantages of the adt of toleration.

11. By the aforefaid act of the 13 ^ 14 C, 2. c, 4. In what fenfe
(which eftablifheth the prefent book of common prayer) ; the thirty fmk
All fubfcriptions to he made to the 39 articles, fhall be fibfcriberunto.
conftrued to extend, for and touching the 36th of the faid

articles, concerning the book of confecration of arch-
bifhops and bifhops and ordaining of priefts and deacons
fet forth in the time of king Edward the fixth, unto the
book containing the form and manner of making ordain-
ing and confecrating of bifhops priefts and deacons in this
a6l mentioned, in fuch fort and manner as the fame did
extend unto the faid former book fet forth in the time of
king Edward the fixth. f. 30, 31.

12. By the 13 EL c. 12. Every perfon to be admitted To be read by
to a benefice with cure, except that within two months ™-."'^^" ^^^
after his induction [or at the fame time that he fhall read

the morning and evening prayer, and declare his aflent
thereunto, 23 G. 2. r. 28.] he do publickly read the faid
articles in the fame church whereof he fhall have cure, in
the time of common prayer there, with declaration of his
unfeigned aflent thereunto, fhall upon fuch default be
ipfo faiSto immediately deprived, f. 3.

And all inftitutions and inductions contrary hereunto,
and all difpenfations, qualifications and licences to the
contrary, fhall be merely void. f. 7.

13. By Can. 5. Whoever fhall affirm, that any of the ^^^^^"^^[^
nine and thirty articles agreed upon by the archbifhops

and bifhops of both provinces, and the whole clergy in
the convocation holden at London in the year 1562, are
in any part fuperftitious or erroneous, or fuch as he may
not with a good confcience fubfcribe unto ; let him be
excommunicated ipfo facto, and not reftored but only by
the archbifhop, after his repentance and publick revoca-
tion of fuch his wicked errors.

And by the flatute of the i^ £1. c. 12. If any perfon
ecclefiaftical, or which fhall have ecckfiaftical living,

2 fhail

96 ^VtititS*

ihall advifedly maintain or affirm any doi^rine directly
contrary or repugnant to any of the 39 articles, and being
convened before the bifhop of the diocefe, or the ordinary,
ihall perfift therein, or not revoke his error, or after fuch
revocation eftfoons affirm fuch untrue dodrine j he fhall
by fuch bifhop or ordinary be deprived of his ecclefiaftical
promotions, f. 2.

Affeffment for the repair of the church. See

Cfjtirclj.

Affets. SeeJIimSf*

ASSISE is a writ that lieth, where any man is put
out of his lands or tenements, or of any profit to
be taken in a certain place, and fo difTeifed of his free-
hold.

Of which there are four kinds :

( 1 ) Affife of novel dijfelfm ; which is, where tenant ifl
fee fimple, fee tail, or for term of life, is put out and
difleifed of his lands or tenements, rents, common of
paflure, common way, or of an office, toll, or the like.

(2) Affife of mort d* anceJlor\ which lieth where a
man's anceflor under whom he claimeth, died feifed of
lands, tenements, rents, or the like, that were held in
fee J and after fuch anceflor's death, a flranger abateth.

(3) Affife of darrein prefentment -, which is, where a
man and his anceftors have prefented a clerk to a church,
and afterwards, the church being void, a flranger pre-
fents his clerk to the fame church, whereby the perfon>
having right is diflurbed.

(4.) Affife de utrwn ; which lieth for a parfon againfl a
layman, or a layman againfl a parfon, for lands or tene-
ments doubtful J whether they be lay fee, or free alms
belonging to the church. Terms of the law.

autiicncet

THE archbifliop of Canterbury had formerly his court
of audience ; in which at firft were difpatched all
fuch matters, whether of voluntary or contentious jurif-
did^ion, as the archbifhop thought fit to referve for hii
'C(wn hearing. They who prepared evidence, and other
materials to lay before the archbifhop, in order to his
decifion, were called auditors. Afterwards this court
was removed from the archbifhop's palace, and the jurii-
•«li£l:ion of it was exercifed by the mafter or official of the
audience, who held his court in the confiftory place at
St. Paul's. But now the three great offices of official
principal of the archbifhop, dean or judge of the peculi-
ars, and official of the audience are and have been for a
long time paft united in one perfon, under the general
name of dean of the arches ; who keepeth his court in
do61:ors- commons hall. Johnf. 254.

The archbifhop of York hath in like manner his court
of audience, "jfohnf. 255,

Augmentation of fmall livings by the revenue of
the firft fruits and tenths. See jFtcff ftuitg?*

.3f. A VOIDAKCE, as oppofed to plenarty, is, where Avoidance wUat,

-zV there is a want of a lawful incumbent on a bene-
fice, during which vacancy the church is quafi viduatay
and the pofTeiiions belonging to it are in abeyance, God.
tntrod. 4.2.
^And this happeneth feveral ways :

2. The moit ufual and known means, by which any g ^eath*
fpiritual promotion doth become void, is by the a£i of god^
viz. by the death of the incumbent thereof And fuch
avoidance doth commence from the day of the death of

fuch incumbent. And the patron is obliged to take nodce '

of it at his peril, and not to expert an intimation froni
the ordinary. IVatf, c. \.

3. By refignation ; which is the ati of the incumbent, -^y xt(iiTii:CiQn%
And this being neceflarily made into the hands 'of the or-

98 ^ :atjott)attte.

dinary, and not valid but as admitted by him ;, the void-
ance confequent upon it is to be notified by the ordinar^f
to the patron. Gtbf, jc^i, 1

By cefiion^ 4* ^7 ceffion, or the acceptance of a benefice incomr

patible ; which alfo is the aft of the incumbent. In which
cafe, the benefice, if of the yearly value of 8 1. or above^
is void by aft: of parliament, and no notice is needful ; if
under 81. a year> it is void by the canon law> and the
patron may either prefent his clerk immediately and re*
^uire admiilion, or may fue in the court chriftian for fenr»
tence of deprivation, and wait for the notice to be given
thereupon, or the ordinary himfelf may ex mero officio
proceed to deprivation, and then give notice. In like
manner, when a parfon pofleled of ecclefiaftical benefices
©f any kind, is promoted to a bifhoprick, and there is n^
difpenfation to bold them in commendam with the bifliop*

* rick ; in fuch cafe, upon the confecration of the bifhop

fhey become void, and the Fight of prefentatioa belong*
to the crown* Gibf, 792* IVatf, c* 2^

But by law in Ireland, no perfon can take any dignity
or benefice there, till he has refigned all hi5 preferments-
in England : by which refignation the king is prevented
©f the prefentation. Which is faid to have been agreed^
in the cafe of the bifhops of Durham and Salifbury, upon
tJie promotion of Dr» Rundle to the bifhoprick of Derrjr
in the year 1735.

By deprivation, 5* ^7 deprivation ; which is the cr^ of the oi'dinary •
Which voidance being created by fentence in the eccle--
fiaftical court, muft be notified to the patron ; but takes
not place prefently, if an appeal is depending. Gibf^

79^- ;

5y aft of the ^» ^7 the a^ of the law ; as in cafe of fimony ; not
law. fubfcribing the articles or declaration ; or not reading of

the articles or the common prayer. All which being
voidances by aft of parliament^ are to be luiderftood
(with regard to the times of the commencement of fuch
voidances, and the notice of them) according to the d»-
reftions and limitations of the refpeftivc afts. Gibf 792/^

K©w tried 7* ^y ^^^ ^5 ^^' 3* ^' 3* ^' ^' ^^^^^^^ '^^ prelatn

have /hewed and prayed remedy^ for that the fecular jujiices da-

accroch to them cognifance of voidance of benefices of rights which

cogmfance and the difcujjing thereof pertatneth to the judges of

holy churchy and not to the lay judge ; the king will and grant*

tihy tho't the fold jujiices jhall from henceforth receive fuch

challenges mads or to he made by any prelate of holy church ift

this bfhalf^ and mor^avsr thereof Jhali do right and reafon.

An*

ZMMnttl . 99

And the dIftiruSlion which hath obtained is this : If it
come in queftion, whether the church be full of an in-
cumbent or not, the fame fhall be tried by the certifi-»
cate of the bifhop, who beft knows of the inftitution, but
if the ifTue to be tried be, whether the church be void
or not, the fame (hall be tried by a jury at the common
law, unlefs the ilTue to be tried be upon fome fpecial aA
of avoidance, for then the fame fhall be tried by the cer-
tificate of the bifhop, fo as the efpecial caufe of the
avoidance be fpiritual. Hughes, c, i^* Gihf, jg^.

"■ I. Baptifm of infants.

II. Publick baptifnu
. III. Private baptifm.

IV. Lay baptifm,

V. Baptifm of thofe of riper years.
Yl, Baptifm of the children of papifts.
VIL Baptifm of negroes in the plamations.
VIII. Fee for baptifm.

I. Baptifm of infants.

irt. 27. T^ H E baptifm of young children Is in any
X wife to be retained in the church, as moft
igreeable with the inflitution of Chrifl.
' .w Rtibr, The curates of every parifh fhall often admo-

K, the people, that they defer not the baptifm of their
dren longer than the^firft or fecond funday next after
r birth, or other holiday falling betv/een ; unlefs
ipon a great and reafonable caufe, to be approved by
»he curate, *

II. Publick baptifm.

I. At firft baptifm was adminiftred publicklv, as oc- Font,
cafion ferved, by rivers: Afterwards the baptillery was
built, at the entrance of the church, or very near it;
which had a large bafon in it, that held the perfon§
to be baptized, and they went dov/n by fleps into it.
H 2 Afterwards,

lOO

Bapt^fm*

When.

previous notice.

Codfathers.

Afterwards, when immerfion came to be difufed, fonts
were fet up at the entrance of churches, i StilL Eed.
Cafes. 146.

Edmund, There fhall be a font of flone, or other com-
petent material, in every church ; which fhall be decent-
ly covered and kept, and not converted to other ufes.
Lind, i/ifi.

And by Can, 81. There fhall be a font of flone,
in every church, and chapel where baptifm is to be
miniftred ; the fame to be fet in the antient ufual
places : in which only font, the minifter fhall baptize
publickly.

2. Ruhr, The people are to te admonifhed, that it'
is moft convenient, that baptifm fhall not be adminiflred
but upon fundays and other holidays, when the mofl
number of people come together; as well for that the
congregation there prefent, may teftify the receiving of
them that be newly baptized, into the number of Chrifl's
church ; as al(b becaufe in the baptifm of infants, every
man prefent may be put in remembrance of his own pro-
feflion made to god in his baptifm. Neverthelefs, if ne-
ceflity fo require, children may be baptized upon any
other day.

And by Can, 68. No minifter fhall refufe or delay to
chriften any child according to the form of the book
of common prayer, that is brought to the church to him
upon fundays and holidays to be chriftened (convenient
warning being given him thereof before). And if he^
fhall refufe fo to do ; he fhall be fufpended by the bi-
(hop of the diocefe, from his miniflry, by the fpacc of
three months.

3. Ruhr, When there are children to be baptized, the
parents fhall give knowledge thereof over night, or in
the morning before the beginning of morning prayer,
the curate.

4. Ruhr, There fhall be for every male child to . be
baptized, two godfathers and one godmother; and for
every female, one godfather and two godmothers.

Can. 29. No parent fnall be urged to be prefent, nor
be admitted to anfwer as godfather for his own child
nor any godfather or godmother fhall be fufFered to\
make any other anfwer or fpeech, than by the book 01 ■
common prayer is prefcribcd in that behalf. Neither
fhall any perfon be admitted godfather or godmother
to any child at chriftening or confirmation, before the

TaiA

J5aptifm. 1 01

faid perfon fo undertaking hath received the holy com-
munion.

5. Ruhr, And the godfathers and godmothers, and the At what time to
people with the children, muft be ready at the font, either ^"^^'*«
immediately after the lafl lefTon at morning prayer, or elfe
immediately after the laft lefTon at evening prayer, as the

jcurate by his difcretion (hall appoint.

6. Ruhr, And the prieft coming to the font, which i% Office;
then to be filled with pure water, fhall perform the of-
fice of publick baptifm.

Note, the queftions in the office of the 2 Ed. 6. Doji
thou renounce^ and fo on 5 were put to the child, and not
to the godfathers and godmothers \ which (with all due
fubmiflion) feemeth more applicable to the end of the in-
ftitution ; befides that it is not confiftent (as it feemeth)
with the propriety of language, to fay to three per-
fons colle&ively, DofI: thou in the name of this child do
this or that ?

7. By a conftitution of archbifhop P^^r^^^;^^ The mi- Naming the
nifters fhall take care not to permit wanton names, which ^^*^^*
being pronounced do found to lafcivioufnefs, to be given

to children baptized, efpecially of the female fex : and if
otherwife it be done, the fame fhall be changed by the
bifhop at confirmation. Lind. 245*

Which being fo changed at confirmation (Lord Coke
fays), fhall be deemed the lawful name, i In/i. 3.
^ And this might be fo \n the time of lord Coke ; but
now the cafe feemeth to be altered. In the ancient offi-
ces of confirmation, the bifhop pronounced the name of
the child ; and if the bifhop did not approve of the name,
or the perfon to be confirmed or his friends defired it to be
altered, it might be done, by the bifhop's then pronoun-
cing a new name : But by the form of the prcfent litur-
"gy, the bifhop doth not pronounce the name of the per-
fon to be confirmed, a«d therefore cannot alter it. Johnf.
A. D. 1 28 1, num. 3,

8. Ruhr, The priefl, taking the child into his hands. Dipping.
fhall fay to the godfathers and godmothers. Name this
child : And then naming it after them (if they fhall cer-
tify him that the child may well endure it) he fhall dip it

in the water difcreetly and warily, faying, N. I baptize
the, in the name of the father, and of the fon, and of
the holy ghoft.

But if they certify that the child is weak, it fhall fuf-
fice to pour water upon it. LL

H 3 Note,

Baptffm.

Note, the dipping by the office of the 2 Ed, 6. was not
all over j but they fir ft dipped the right fide, then the
left, then the face towards the font.

9. Then the minifler (hall fign the child with the fign
of the crofs. And to take away all fcruple concerning
the fame ; the true explication thereof, and the juft rea-
fons for the .retaining of this ceremony, are fet forth in
the thirtieth canon. Ruhr,

The fubftance of which canon is this : That the firft
chriftians gloried in the crofs of Chrift ; that the fcrip^
ture doth fet forth our whole redemption under the name
of the crofs ; that the fign of the crofs was ufed by the
firft chriftians in all their actions, and efpecially in the
baptizing of their children ; that the abufe of it by the
thurch of Rome doth not take away the lawful ufe of it ;
that the fame hath been approved by the reformed di-
vines, with fufficient cautions neverthelefs againft fuper*
llition in the ufe of it, as, that it is no part of the
fubftance of this facrament, and that the infant baptized
is by virtue of baptifm before it be figned with the fign
of the crofs received into the congregation of Chrift's
ilock as a perfecSl member thereof, and not by any power
afcribed to the fign of the crofs ; and therefore that the
fame being purged from all popifli fuperftition and error,
and reduced to its primary inftitution upon thofe rules
of doctrine concerning things indiiFerent which are con-
fonant to the word of god and to the judgments of all the
ancient fathers, ought to be retained in the church, con^
fidering that things of themfelves indifferent do in fomc
fort alter their natures when they become injoincd or pro-
hibited by lawful authority.

III. Private baptifm,

Ruhr, The curates of every parlfh fhall often warn
the people, that without great caufe and necefiity, they
procure not their children to be baptized at home in their
houfes.

Can, 69. If any minifter being duly, without any man-
ner of collufion, informed of the weaknefs and danger
of death of any infant unbaptized in his parifti, and there-
upon defired to go or come to the place where the faidj
infant remaineth, to baptize the fame, ihall either wil--
fully refufe fo to do, or of purpofe or of grofs negligence
fhall fo defer the time, as when he might conveniently
"have reforted to the place, lirui have baptized the faid in-
fant,

TBWitm* J 03

; lant^ it dieth thro' fuch his default unbaptlzed ; the faid
miniiler fhall be fufpended for three months, and before
his reftitution fhall acknowledge his fault, and promife
liefore his ordinary, that be will not wittingly incur the
like again. Provided, that where there is a curate, or
a fubftitute, this con^tution fhall not extend to the
parfon or vicar hinafelf, but to the curate or fubflitutc;
prefent.

Ruhr. The child being named by fbme one that is pre*
fent, the minifler fhall pcur water upon it.

And let them not doubt, but that the child fo baptize4
is lawfully and fufHciently baptized, and ought not to
be baptized again. Yet neverthelefs, if the child which
is after this fort baptized do afterward live, it is expedi*
ent that it be brought into the church, to the intent that
the congregation may be certified of the true forrr^
of baptifrxv privately before adminiiired to fuch child.

IV. Lay haptifm.

Edmund, Women, when their time of child-bearing
is near at hand, fh^ll have water ready, for baptizing the
child in cafe of necefllty. Lind, 63.

Ojho, For cafes of necefllty, the priefts on fundays fhall
frequemly inftru(a their parifhioners in the form of bap.-
tifei. Athon, 10.

: Peccham, W4iich form fhall be thus : / cij/Ien the in
the name of the fader ^ and of the fone^ and of the holy gojle,
I?ind. 244.

Peccham, Infants baptized by laymen or women (in im*-
minent danger of death), fhall not be baptized again:
And the priefl: fhall afterwards fupply the reft, Lhid,
41.

Edmund, If a child fhall be baptized by a lay perfon at
thDme, by reafonof ne(?eflity ; the water (for the reverence
|>f baptifm) fhall be either poured into the fire, or car-
jricd to the church to be put in the font : and the vcfTel
(hall be burnt, or applied to the ufes of the church. Lind*
241.

"^Y the Rubrlcks of the 2d and of the 5th of Edward
the fixth; it was ordered thus: The paflors and curat^
Ihall often admonifh the people, that without great caufe
and necefllty they baptize not children at home in their
houfes J and when great need fhall compel them fo to
^o, that then they minijier it on this fafhion : Firft, let
iktm that be prefent call upon god for his grace, and fay

H 4 the

I04. ^tLi^titm,

the lord's prayer, if the time will AifFer : And then one of
ihein fhall name the child, and dip him in the water, or
pour water upon him, faying thefe words, I baptize thee
in the name of the father, and of the fon and of the holy
ghoft.

In the manufcript copy of the articles made in convo-
cation in the year 1575, the twelfth is, Item, Where
fome ambiguity and doubt hath rifen among divers, by
what perfons private baptifm is to be adminiftred ; , foraf-
much as by the book of common prayer allowed by the
flatute, the bifhop of the diocefe is authorized to expound
and refolve all fuch doubts as fhall arife, concerning the
manner how to underftand and to execute the things con-
tained in the faid book ; it is now, bv the faid archbi-
fhop and bifhops expounded and refolved, and every of
them doth expound and refolve, that the faid private
baptifm, in cafe of neceiTity, is only to be miniftred by
a lawful minifter or deacon called to be prefent for that
purpofe, and by none other : And that every biihop in
his diocefe (hall take order, that this expofition of the
faid doubt fhall be publifhed in writing, before the firfl
day of May next coming, in every parifh church of his
diocefe in this province; and thereby all other perfbhs
ihall be inhibited to intermeddle with the miniflring of
baptifm privately, being no part of their vocation.

This article was not publifhed in the printed copy ;
but whether on the fame account that the fifteenth article
was left out (namely, becaufe difapproved by the crown)
doth not certainly appear. However the ambiguity re-
mained, till the conference at Hampton court, in which
the king faid, that if baptifm was termed private, becaufe
any but a lawful minifier "might baptize, he utterly dif-
liked it, and the point was there debated ; which de-
bate ended in an order to the bifhops to explain it fo, as
to reflrain it to a lawful minifler.

Accordingly, in the book of common prayer which
was fct forth the fame year, the alterations were printed

in the rubrick thus : And alfo they fhall warn them,

that without great caufe they procure not their children tg
be bapiixed at home in their houfes. And when great
weed fliall compel them fo to do, then baptifm Jhall be ad^
tninijhed on this fafhion : Firfl, let the lawful minijler and
them that be prefent call upon god for his grace, and
fay the lord's prayer, if the time will fufFer ; and thei|
the child being named by fome one that is prefent y the faid

?nini/i^

jBapMm. 105

mim/Ier Jhaii dip it in the water ^ or pour water upon it:

And other expreflions, in other parts of the lervice,

which feemed before to admit of lay baptifm, were fo
turned, as exprefly to exclude it. Gihf. 369.

Neverthelefs, bifhop Fleetwood fays, that lay baptifm
is not declared invalid by any of the offices or rubricks^
nor in any publick aft hath the church ever ordered fuch
as have been baptized by lay hands to be rebaptized by
a lawful minifter, though at the time of the reftoration
there were fuppofed to be in England and Wales 2 or
300,000 fouls baptized by fuch as are called lay handsl
He fays, whether the indifpenfible neceflity of baptifm
be the do6trine of the church of England or no, he
cannot with certainty determine; but becaufe he is per-
fuaded that the church doth not hold lay baptifm to
be invalid, he is fo far perfuaded that the church holdeth
baptifm to be indifpenfibly neceffary where it can pof-
fibly be had, and will have lay baptifm (when a law-
ful minifter cannot be had} rather than none at all,
Fketiv. Works. 530.

^ V. Baftifm of thofe of riper, years.

Preface to the hook of common prayer. It was thought
convenient, that fome prayers and thanfgivings, fitted
to fpecial occafions, ftiould be added -, particularly, an
office for the baptifm of fuch as are of riper years ;
which, altho' not fo neceffary when the former book was
compiled, yet by the growth of anabaptifm thro' the li-
centioufnefs of the late times crept in amongft us, is
now become neceffary, and may be always ufeful for the
baptizing of natives in our plantations, and others con-
verted to the faith.

Rubrick. When any fuch perfons as are of riper years
are to be baptized, •fimcly notice fhall be given to the
bifhop or whom he {hall appoint for that purpofe, a week
before at the leaft, by the parents or fome other difcreet
perfons ; that fo due care mjy be taken for their exami-
nation, whether they be fufTicient^y inftrufted in the prin-
ciples of the chriflian religion ; and that they may be
exhorted to prepare theinicKes with prayers and faffing
for the receiving of this !) ;y .facrament.

And if they fhall be found fit, then the godfathers and
godmothers (the people hcmg affembled upon the funday
or holiday appointed) fhall be ready to prefent them at
tiie font, immediately after the fecond leffon, either at

morning:

to6

2Bapetrm*

morning or evening prayer, as the curate in his difcr*-
tion fhall think fit.

And it is expedient that every perfon thus baptized
fhould be confirmed by the biftiop, fo foon after his bap-
tifm as conveniently may be ; that fo he may be admit*
ted to the holy communion,

VL Baptifm of the children of papijls.

By the 3 Ja. c, 5. Every popifh recufant, which fliall
have any child born, fhall within one month next after
the birth, caufe the fame to be baptized by a lawful mi-
nifter, according to the laws of this realm, in the opeQ
church of the pari(h where the child fhall be born, or
in fome other church near adjoining, or chapel^ where
baptifm is ufually adminiftred 5 or if by infirmity of thp
child, it cannot be brought to fuch place, then the fame
fhall within the time aforefaid, be baptized by the IzWf
ful minifter of any of the faid parifhes or places : on
pain that the father of fuch child if he be living on^
month after the birth, or if he be dead within the faid
month, then the mother of fuch child, fhall forfeit loolj
one third to the king, one third to him who fhall fue iii
any of the king's courts of record, a^d one third to the
poor of the faid parifh. / 14.

VII. Baptifm of negroes in the plantations.

It hath been a point debated in the court of king'g
bench, whether by baptifm a negro flavc acquires ma^
numiffion. 3 Mod. 120. But this feemeth to be no\^
fully fettled in the negative both by divines and lawyers,
Bifhop Fleetwood fays, there is no fear of lofing the fer.^
vice and profit of their flaves, by letting them become
chriflians; that they are prohibited neither by the laws
of god, nor of the realm, from keeping chriftian flaves;
and that flaves are no more at liberty after they arc
baptized, than they were before. Fleeiw. Works. 501,
And both the lord chancellors Talbot and Hardwick^
gave their opinions the fame way. — Archb. Seder*s fefr
mon before the fociety for propagating the gofpel in fo»
r«ign parts, in the year 1740.

rci^ihuh^

VIII. Fe^

VIII. Fee for iaptifm.

Langton. IFe do firmly injoin^ that no facrament of the
fhirch Jhall be denied to any one^ upon the account of any fum
if money : becaufe if a7ty thing hath been accu/Iomed to be
given by the pious devotion of the faithful^ we will that ju-
Jlice be done thereupon to the churches^ by the ordinary of the
place afterwards.

Upon the account of any fum of money'] That is, ufed to
fee paid or taken in the adminiftration of any of the fa-
craments. Lind. 278.

Shall he denied'] Or delayed. Z/W. 278.

Hath been accujlomed to be given] That is, of old, and
for fo long time as will create a prefcription, altho' at
iirft givfen voluntarily. For they who have paid fo long,
^re prefumed at firft to have bound themfelves voluntarily
thereunto. Lind» 279.

H, 9 TV, Burdeaux and Dr Lancajler, Bordeaux, a
french proteftant, had his child baptized at the french
church in the Savoy; and Dr Lancafter, vicar of St*
Martin's, in which parifh it is, together with the clerk,
libelled againft him for a fee of 2s 6 d due to him, and
Is for the clerk. A prohibition was moved for; and it
tvas urged, that this was an ecclefiaftical fee due by the
canon. By Holt chief juftice : Nothing can be due of
common right ; and how can a canon take money out
of laymens pockets ? Lindwood fays, it is fimony to take
any thing for chriftning or burying, unlefs it be a fee
due by cuftom; but then, a cuftom for any perfon to
take a fee for chriftning a child, when he doth not
Chriften him, is not good \ like the cafe in Hobart, where
one dies in one partfh, and is buried in another, the
parifh where he died fhall not have a burying fee: If you
have a right to chriften, you fhould libel for that right ;
but you ought not to have money for chriftning, when
you do not, i Salk, 332.

laaGartJS;

10 8

a^aaattjES.

Born out of law-
ful matrimony.

Hufband Tvithin
the four fcas.

K'lfband'

I. IFho Jhall he deemed a hajlard\ and therein of

fuppofititious births.

II. Trial of bajiardy.

III. Confequences of haflardy»

IV. Funifhment of the mother and reputed father of
a bafiard child,

I. Who fhall he deemed a hafiard\ and therein of fup-
pojititious births.

I- TT 7^ term all by the name of baftards, that be born

out of lawful matrimony, i /«/?. 244.

2. Lord Coke fays. By the common law, if the huf-
band be within the four feas, that is, within the jurifdi6lion
pf the king of England, if the wife hath ifTue, no proof
is to be admitted to prove the child a baftard, unlefs the
hufband hath an apparent impoflibility of procreation ; as
if the hufband be but eight years old, or under the age of
procreation, fuch ifTue is baftard, albeit he be born with-
in marriage. But if the ifTue be born within a month or
a day after marriage, between parties of full lawful age,
the child is legitimate, i InJ}. 244.

3. //. 5 G. 2. Pendrell and PendrelL Upon an ifTue
out of chancery to try, whether the plaintiff was the heir
at lav/ of on(t Thomas Pendrelly it was agreed, that the
plaintiff's father and mother were married, and cohabited
for fome months ; that they parted, fhe ftaying in Lon-
don, and he going into Staffordfhire ; that at th.e end of
three years the plaintiff was born. And there being fome
doubt upon the evidence, whether the hufband had not
been in London within the lafl year, it was fent to be
tried. And the plaintiff reflcd at firfl upon the prefump-
tion of law in favour of Icgitamacy, which was encountred
by flrong evidence of no accefs. And it was agreed by
the court and counfel on the trial at Guildhall before lord
chief juflicc Raymond, that the old do£lrine of being
within the four feas was not to take place, but the jury
nvcrc at libt-rty to confider of the point of accefs ; which
they did, and found againfl the plaintiff. Str, 925.

And

a5aftatt)g» 109

And To by the rules of the civil law, If the hufband be
fo long abfent from his wife, as that by no pofTibility of
nature the child can be his ; or if the adulterer and adul-
terefs be fo known to keep company together, that by
juft account of time it cannot fall out to be any other
man's child but the adulterer's ; it is accounted to be a
baftard. God, /^yg.

4. If the hufband be caftrated, fo that it is apparent impoteacr*
that he cannot by any poflibility beget any iflue ; if his

wife hath iffue divers years after, this (ball be baftard,
altho' it be begotten within marriage, becaufe it is ap-
parent that it cannot be legitimate, i Roll's Abf. 358.

AI,- 6 G, 2. Lomax and Holmden, In ejectment : The
queftion on a trial at bar was, whether the leiTor was fon
and heir of Caleb Lomax^ efquire, deceafed; v/hich de-
pended on the queftion of his mother's marriage. And
that being fully proved, and evidence given of the huf-
band's being frequently at London, where the mother
lived, fo that accefs muft be prefumed ; the defendants
were admitted to give evidence of his inability from a bad
habit of body. But their evidence not going to an im-
poflibility, but an improbability only ; that was not thought'
fufficient, and there was a verdid for the plaintiff. Str,
940.

5. If a man marry his kinfwoman within the degrees, ifTueofamam-
the ifllie between them is not baftard until divorce found ; age within the
for the marriage was not vpid. i Roll's Jbr, 357. degrees.

6. When a woman is feparated from her hufband by a child begotten
divorce a menfa et thoro, the children fhe has during the ^^'cr a divorce;
fe'paration are prefumed to be baftards ; unlefs it appear

upon proof, that the hufband after fuch feparation did
cohabit with his wife, i Bac, Jbr, 312.

• 7. All children inheritors, which fhall be born without Child born out
the ligeance of the king of England, Ihall have the fame of the kiog's al-
benefit of inheritance as if they were born within the '^8'*"°*'
king's ligeance ; fo always, that the mothers of fuch chil-
dren do pafs the fea by the licence and wills of their huf-
bands. And if it be alledged againft any fuch born be-
yond the fea, that he is a baftard, in cafe where the
bifhop ought to have cognizance of baftardy ; it fhall be
commanded to the bifhop of the place where the demand
is, to certify the king's court where the pica thereof
hangcth, as of old times hath been ufcd in the cafe of
baftardy alledged againft them which were born in Eng-
land. 25 Ed. 3. Jl. 2.

8. To

no jsaftatDsf.

Child born be- g, 7^ the king's Writ of bajlardy^ whether one being horn
loarrlaK''*'^^" ^^rf matrimony^ may inherit in like manner as he that is born
after ?natrimony ; all the bi/hops anfwered^ that they would not
nor could not anfwer to it^ becaufe it was dire6lly againjl the
common order of the church. And all the bijhops injlanced the
lords^ that they would confenty that all fuch as tvere born afore
matrimony Jhould be legitimate^ as well as they that be born
within matrimony y as to the fuccejfion of inheritance, forafmuch
as the church accept eth fuch for legit i?nate. And all the earh
and barons with one voice anfwered^ that they would not change
the laws of the realm, which hitherto have been ufed and ap"
proved, 20 H. 3. c. 9.

Againfl the common order of the church"] For the better
underflanding of which, it is to be known, that in the
- time of pope Alexander the third, which was in the 6
H. 2. this conftitution was made, that children born be-
fore folemnization of matrimony, where matrimony fol-
lowed, (hould be as legitimate to inherit unto their an-
ceftors, as thofe that were born after matrimony j and
thereupon the ftatute faith, that the church accepteth
fuch for legitimate. 2 /«/?. 96.

The bijhops inflamed the lords] Hereupon thefe two con-
clufions do follow; i. That any foreign canon or con-
llitution made by authority of the pope, being againfl the
law and cuftom of the realm, bindeth not until it be al-
lowed by a61: of parliament ; which the biihops here prayed
it might have been : for no law or cuftom of England
can be taken away, abrogated, or annulled, but by autho-
rity of parliament. 2. That altho' the bifhops were fpi-
ritual perfons, and in thofe days had a great dependency
on the pope ; yet in cafe of general baftardy, when the
king wrote to them to certify who was lawful heir to any
lands or other inheritance, they ought to certify accord-
ing to the law and cuftom of England, and not accord-
ing to the roman canons and conftitutions, which were
contrary to the law and cuftom of England, wherein the
bifhops fought at this parliament to be relieved. 2 Infl. 97.

-^., , . . q. If a man hath a wife and dieth, and after within a

Chiia born after n ^ • , -r -i • j-,-

the father's Ihort time the wife marrieth agam, and withni nme

death, and the months hath a child, fo that the child may be the child

of the firft or of the fecond hufband j in this cafe, if it

cannot be known by circumftances, the child may chufc

the firft or fecond hufband for his father, i Roll's Abr^

4 J^y

mother named
tgain

By the civil law, fuch as were born in the beginning
of the eleventh month after the deceafe of their mother's
hufband, were to be accounted legitimate ; but fuch as
were born in the end thereof, were to be accounted baf-
tards : Yet the glofs there relates to a matter of facSt con-
trary to this law, and gives us an inftance of a widow in
Paris who was delivered of a child the fourteenth month
after her hufband's death; yet the good repute of this
woman's continency prevailed fo much againft the letter
of the law, that the court judged the caules of childbirth
to be fometimes extraordinary, the woman to be chafte,
and the child legitimate. But this, as the glofs addeth,
ought not to be eafily drawn into example. God. 482.

It was found by verdict, that Henry the fon of Beatrice,
which was the wife of Robert Radwell deceafed, was born
eleven days after a woman's furtheft lawful time. And
thereupon it was adjudged, that he was not the fon of
Robert. Now the time (faith lord Coke) in that cafe
appointed by the law, at the furtheft is nine months, or
forty weeks j but fhe may be delivered before that time.
i In/i. 123-

[Note, in the foregoing cafe, inftead of ibe furtheft
lawful iime^ it might have been better to have faid the corri"
mon ufual timeJ\

M, 7 f. Jlfop and BowtrelL Ejectment for lands in
Mundenmtht county oi Hertford. The queftion upon
evidence to the jury was, whether Edmund Andrews dying
the twenty third of March, and his wife being with
child, but not delivered until the fifth of January fol-
lowing (which was forty weeks and nine days, and then
delivered of a daughter named Elizabeth) Ihall be reputed
the father to the faid Elizabeth^ or that (he were a baftard.
For it was proved, that he fell fick upon the twenty fe-
cond day of March, and died the day following of th^
plague; And that J^Jmund Jndrews (father of the faid
Edmund who was dead) in malice to his fon's wife, did
much abufe her, and caufed her to bediflodged from places
where (he was harboured, and to lie in the cold ftreets ;
and that (he was fo ufed for fix weeks together before her
travel j and fhe being brought into a woman's hotife,
who commiferated her cafe, having warmth and fufle-
nance, was prefently within twenty four hours deliverej
of the faid Elizabeth. And this being proved, and this
mifufage, by five women of good credit, and two dolors
of phyfick, viz. Sir JVilliam Paddy and do£tor Mundford:^^.
and one Chambsrkine (who was a phyfician, and in na-
ture

112 ^aftatDS,

ture of a midwife*, upon their oath ; they affirming that
^ the child came in time convenient t6 be the daughter ot
the party who died ; and that the ufual time for a woman
to go with child, was nine'months and ten days, to wit,
folar months, that is, thirty days to the month, arid not
lunar months ; and that by reafon of the want of ftrength
in the woman or the' child, or by reafon of ill ufage, fhe
might be a longer time, viz. to the end of ten months
or more ; the court held here, that it might well be as
the phyficians had affirmed. And the phyficians further
affirmed, that a perfe6t birth may be at feven months,
according to the ftrength of the mother,' or of the child ;
which is as long before the time of the proper birth : and
by the fame reafon it may be as long deferred by accident,
which is commonly occafioned by infirmities of the body,
or paffions of the mind. And fo the court delivered to
the jury, that the faid Elizabeth who was born forty weeks
and more after the death of the faid Edmund Andrews^
might well be the daughter of the faid Edmund. Cro.
Jac. 541.
Stippofitltious 10. The author of Fleta^ who lived in the reign of

biiths. Edward the fecond, hath a whole chapter about fuppofiti-

tious births ; where he tells us, what remedy the right
heir had in fuch cafe, viz. that a writ was diredled to
the fherifF, to caufe the woman who pretended herfelf to
be with child, forthwith to appear in the county court,
there to be fearched by difcreet and lawful women. And
if it was doubtful to them whether fhe was with child or
not, then the fheriff might commit her to fome caftle,
there to continue. And no woman with child was to
come near her, until fhe fhould be delivered. Aad this
writ was ufed above fixty years before the author of Fleta
wrote, viz. in the 5 H. 3. when the widow of JVilliam
Conjlahle of Manton in Norfolk was found guilty of this
cheat. And in all probability it was of ufe in the Saxon
times : for the form of the writ is, to command the fhe-
rifF to fummon the woman to appear in the full county ;
as it is generally known, that all bufinefs of the law was
then tranfadled in that court, where the bifliop fate with
the civil magiftrate. Nelf, Rights of the Clergy, Tit;
Baftards.

But afterwards, when the courts at Wcflminfter came
to be eftablifhed, then was the writ de ventre infpicieiido
framed ; by which the fherifl* was commanded, that in
the prefence of twelve knights and fo many women, he
Ihould caufc examination to be made, whether the wo-

2 man

iBaftatus. 113

mart was with child or not ; and if with Child, thch about
what time it would be born ; and that he certify the
fame to the juftices of affize or at Weftmlnfter, under his
feaJ, and under the feals of two of the men prefent* Id^
.. We have two inftances of this writ in the books ; the
one in eafter term in the 39 EL which was thus : Percival
Wtlloughby^ and Bridget his wife one of the coheirs of
Sir Francis Wilkughby (becaufe Sir Francis died feifed
of a great inheritance, having five daughters, where-
of the eldeft was married to Percival IVUloughby^ and not
any fon ; and the faid Francis leaving his wife Dorothy^
who at the time of his death pretended her felf to be with
child by Sii' Francis, which if it were a fon, all the five
fifters fhould thereby lofe the inheritance defcended unto
them) prayed a writ de ventre infpiciendo out of the chan-
cery, direded to the fherifF of London^ that he fhould
caufe the faid Dorothy to be viewed by twelve knights,
and fearched by twelve Women in the prefence of the
knights, et ad traSiandum ubera, et ventrem infpiciendumy
whether fhe were with child, and to certify the fame into
the court of common pleas ; and if fhe were with child,
to certify for how long time in their judgments, and
when fhe would be delivered. Whereupon the fherifF
accordingly caufed her to be fearched, and returned, that
fhe was twenty weeks gone with child, and that Within
twenty weeks fhe would be delivered. Whereupon an-
other writ IfTued out of the common pleas, commanding
the fherifF fafely to keep her in fuch an houfe, and
that the doors fhould be well guarded, and that every
day he fhould caufe her to be viewed by feme of the
women named in the writ (wherein ten were named),
and when fhe fhould be delivered that fome of them fhould
be with her to view the birth whether it be male or fe-
male, to the intent there fhould not be any falfity. And
.upon this writ the fherifF returned, that accordingly he
had done, and that fuch a day flie was delivered of a
daughter. Cro. EL 566*

Note, this writ, and the proceedings thereupon are
grounded upon BraSion b. 2. p. 69. and upon the writ in
the Regijler, p. il'j.

The other cafe was in eafter term 22 J, Which was
thus : AlphonfusTheaker coufm and heir ollVilliafn Theakery
after the death of WilliamTheakcr, becaufe he had not any
ifluc alive at the time of his death (but Mary his wife
was then fuppofed to be enfient by him, and within one
week after his death was married again to one John Dun^
tpmh)^ procured out of the chancery a writ cle ventre in-

VoL. I. i fpicicnd?

114 jBaftarDS.

fpiclendo of the faid Mary^ dire£led to the fherifF of Lon-
don, to caufe the faid Mary to be fearched, whether (he
were with child by the faid IVilliam Theaker^ and when
(he would be delivered (no mention being made of her
fecond marriage), and this writ was according to the pre-
cedent in the 39 EL of the like writ againft the lady
TVUkughby, And this writ was returnable in the com*
xnon pleas. The fherifF returned, that he had caufed her
to be fearched, and returned the inquifition, that by fuch
perfons he caufed her to be fearched, and found her to be
cnfientj and that ihe would be delivered within twenty-
weeks. Wherefore he now prayed a fecond writ out of
the common pleas to be diredied to the iherifF of Surrey^
becaufe (he was moved with her hufoand to Wandfworth
in Surrey, and there inhabited, that the fheriiF mighty
take her into his cuftody, and keep her until fhe wert
delivered of her child, that there might not appear to be
any falfe or fuppofititious birth, and that in the mean
time he fhould caufe her to be viewed every day by certain
matrons named by the court in the writ, and that fomc
of them might be at the birth of the child, according to
the faid precedent of the lady Willoughhy. But becaufe in
that cafe the lady was a widow, and fo fuch a courfe
might well be obferved, but here fhe was a feme covert
who ought to cohabit with her hufband, they would not
take fuch a courfe with her, but left her with her huf*
band, he entring into a recognizance that fhe fhould not
remove from the houfe wherein they then inhabited ; and
that one or two of the women returned by the fherifF
fhould fee her every day, and that two or three of them
fhould be prefent at her travel : For it was faid, that this
ifTue might be well faid to be the child of the firfl huf-
band, and fhould inherit his land. So that if there were
any falfe or fuppofititious birth, the coufin and heir might
be difinheritcd. Wherefore a writ was accordingly award-
ed to the fheriff of Surrey, to caufe her to be feen every
day until her delivery, by two at leafl of the faid women
returned by him \ and that three of them or more fhould
be prefent with her at her delivery, fo as no falfhood
might be in her birth. And after this courfe obferved,
fhe was delivered of a female child, who was afterwards
by inquifition found to be the daughter and heir of the
faid Williatn Theakcr dcccafed. Cro. J a. 685.

And this whole procedure feemeth to be deduced from
the rules of the civil law, which is particularly exprefs
and pun6lual in this behalf. For by that law, the wo-
man

man who fuppofeth her felf to be with child, muft inti-
mate it twice in every month to thofe who are neareft con-
cerned^ that they may fend five women to infpe(St her j
and fhe muft do the like for the fp;ice of a month before
flie expe£ts to be delivered, that they may fend fome per-
fbn to be there at that time. The judge may appoint in
what houfc ihe fhall dwell ; and the room wherein fhe
lies muft be fearched ; and if there be more than one
door, it muft be nailed up ; and three men, and as many
women muft be fet to watch her as often as flie comes
into the chamber, who are alfo to fearch all perfons who
come into the houfe and chamber. When flie is in la-
bour, five women fent by the party next concerned, muft
be witnelTes to the birth, of which they muft have notice
beforehand -, and there muft be no more in the chamber a^
that time, but ten women, two midwifes, and fix fervants,
of which none muft be with child, and therefore may be
fearched before they go in ; there muft be three lights in
the room ; the child when born muft be fhewed to thofe
who are concerned ; the judge muft appoint who fhall
keep it, unlefs the father hath otherwife appointed ; and
it muft be fhewed twice in a month till it is three months
old, and afterwards once in a month till it is fix months
old ; and once in two months till it is a year old ; and
from thence once in fix months till it can fpeak. And if
any thing is done contrary to the premiffes, or not permit-
ted to be done ; then upon proof thereof, the child is not
to be admitted to the pofTelTion of the eflate. Nelf, ibid.

II. Trial of hajiardy.

I. General baftardy is to be tried by the bifhop ; fpe- Baftar^y, general
cial baftardy by the country, i Roirs Abr. 361. andfpeciai.

Before the flatute of the 20 H, 3. c, 9. above recited,
the party pleaded not* general baftardy, but that he was
born out of efpoufals j and the bifhop ought to certify
whether he were born before efpoufals or not, and ac-
cording to that certificate to proceed to judgment accord-
ing to the law of the land. And the prelates there an-
fwered, that they could not to this writ anfwer ; and ,
therefore ever fince, fpecial baftardy, viz. vi^hether the
perfon was born before efpoufals or after, hath been tried
in the king's courts, and general baftardy in the court
chriftian. 2 Inji. 98.

And therefore if general baftardy be pleaded In difability
of the plaintiff (as if it be allcdgcd that his parents were

I 2 never

ii6 Baftatts.

never accoupled in lawful matrimony), the fame fhall b*

tried by the certificate of the bifhop, whether it be in a

real or a perfonal action ; but if the marriage be confefTed,,

and it be only pleaded, that the plaintiff was born at

fuch a place before the marriage was Iblemnized,- and fo

baftard, this is a fpecial ballardy, and ihall be tried by a

jury at the common law, where the birth is alledgcd.

Hughes c, 29. . Johnf. 264.

rirft tobemovcd 2. The queftion of baflardy or legitimacy ought firfl

in the temporal ^o be moved in the king's temporal court, and thereon

*^°"'^* iflue ought to be joined there ; and then it ought to be

tranfmitted by the king's writ to the ecclefiaftical court,

to be there examined and tried. God. 489.

And if the ecclefiaftical court undertake the examina-
tion of baflardy or legitimation, without the diredlion of
the temporal court, a prohibition lies ; for this affeds the-
temporal inheritance of the fubjedl. i Roll's Ahr, 361.
God. 489. Jolmj. 263.
Writ to ihe or- 3. By the 9 H. 6. c. II. All jujllces i?i the courts ivl^re
dinary te certify, any plea Jhall bc depending %vhcrein baflardy Jlmll be alledged
againjl any perfon party to the fame plea, a7id thereupon an
ijjue joined which by ihe law ought to be certified by the ordi^
nary ; one of the judges of the court where the plea Jhall be de-
pending, before that any writ of certificate Jhall pafs out of
the fa7?ie court to the ordinary to certify upon the ijjiie fo joined^
Jhall make remembrance under his feal, at the Juit of the de-
mandant or tenant, plaititijf or defendant, reciting the iffue
that is joined in fuch plea of baflardy, and certifying to ihe
lord chancellor, to the intent that thereupon proclamation be
made in the court of chancery by three ?no7iths, once in every
month, that all perfons pretending any inter ejl to objeSl againfl
the party which prctendeth himfelf to be mulie?', that they J'ue
to the ordinary to whom the writ of certificate Jhcdl be direfied^.
to make their alligations and objections againfi the party which
pre'endeih him to be mulier, as the law of holy church re-
quireth ; and the faid chancellor, having fiotice of the f aid rc"
mcmbrance and iffue joined, and being required by the faid .
demandant or tenant, plaint ijf or defendant having the faid
remembrance, to make proclamation as aforefaid,. the fame chan^
cellor Jhall caufe proclatnation to be made inform aforefaid, and
Jhall certify the fame fo made in the court where the plea, in
vjhich the baflardy is alledged, another time Jhall be depending.,
And the judges of the court where fuch plea Jhall be depending^
before any proclamation fo to be made in the chancery, fljall
make one time fuch proclamation openly in the fame court, and
alfo another time when the proclamation Jhall be certified by the

chancelbt

jBaftartjS. 1 1 7

'chancellor as aforefaid. And then the faid judge Jhall award
the faid writ of certificate to the ordinary^ to certify upon fuch
ijfue fo joined. And if any ivrit of certificate be made or
granted^ before all the faid proclamations be made and certified
as aforefaid'y then the fame writ of certificate^ and alfo the cer^
iificate of the ordinary thereupon^ Jlmll be void in law and of
none effe6i.

Again/} the party which pretendeth himfelf to be mulier]
Mulier hath three fio-nifications : i . It fio-nifieth a woman
in general. 2. A virgin. 3. A wife; and this is the
moft proper fignlfication of it in our laws : ancj a fon or
daughter born of a lawful wife, is called filius 7nulieratus
or filia mulier at a ^ a fon mulier or a daughter mulier ; and
it is always ufed in contradiftindlion to a baflard ; thus a
baftard is an iUegitimate jlTue, and mulier is legitimate.
I /w/?. 243,

Shall he void in law and of none effe5l^ Before this a£l,
baftards had a way of tricking themfelves (as it were) in-
to legitimacy. For they ufed to biing feigned articles,
and fuborned witnefles before the bifhop to prove their
legitimation, and then got the certificate returned of re-
cord ; and after that, their legitimation could never be
contefted. For being returned of record, as a point ad-
judged by its proper judges, and remaining among the
memorials of the court, all perfons were concluded by it.
And this created great inconveniences : For the evidences
of the contrary parties concerned were never heard at the
trial, and yet their intereft was concluded. And to re-
medy thefe inconveniences, this a6l was made.

4, The bifliop's certificate, made in due form of law, Ordinary's certi-
fhall not be gainfayed ; but credit fhall be given to the ^"^^ ""*^^"^ive.
fame, fo as the whole world Ihall be bound and eftopped

thereby. God, 489. ^

5. The fpiritual court cannot give fentence to annul a BaftaHlzIng af-
marriage after the death of the parties ; bccaufe fentence ^^"^ ^^^ parents
is given there only pro falute anima^ which cannot be af-
ter their death ; and therefore the fentence in fuch cafe is

only to difinherit the ifTue, which they cannot do ; for by
fuch means any one might be difmheritcd. i Roll's Abr.
360. \ Salk, 120,

III. Confequences of laflardy,

I. A baftard is quafi nullius filius^ and can have no name ^amci
pf reputation as foon as he is born, i Injl, 3.

I 3 2. But

II.

ii8

Inheritance.

Corporal and
pecuniary pu«
niihmenC.

2. But after he hath gotten a name by reputation^ he
may purchafe by his reputed or known name, to him and
his heirs ; although he can have no heirs but of his body.
I Injl. 3.

If the ifTue of a baftard purchafeth land, and dieth with-
out ifTue ; though the land cannot defcend to any heir of
the part of the father, yet to the heir of the part of the
mother it may ; for the heirs of the part of the mother
make not any conveyance by the baftard. Vin. Bajiard,
P. 6.

If a baftard dieth inteftate, without wife or iflue, the
king is intided to the perfonalty ; and the ordinary of
courfe grants adminiftration, to the patentee or grantee
of the crown. 3 P. TVilL 33.

IV, Punijhment of the mother and reputed father of
a baftard child.

I. Befides the puniftiments to be infli£led by the eccle-
fiaftical jurifdidion, it is enabled by the 18 EL c, 3. and
3 C <:. 4. yi 15. Concerning baftards begotten and born,
out of lawful matrimony (an offence againft god's law or
man's law ;) that the juftices of the peace fhall take order
as well for the puniftiment of the mother and reputed fa-
ther, as for relief of the parifti, by charging fuch mother
or reputed father with the payment of money weekly or
other fuftentation, for the relief of fuch child, as to them
fhall feem meet.

And by the 7 J, c, 4. Every lewd woman which fhall
have any baftard which may be chargeable to the parifh,
the juftices of the peace fhall commit fuch woman to the
houfe of corredlion, to be puniftied and fet on work,
during the term of one whole year ; and if fhe eftfoons
offend again, then to be committed to the faid houfe of
corre(5lion as aforefaid, and there to remain until fhe can
put in good fureties for her good behaviour, not to offend
fo again.

And by the 13 ^ i\C. 2. c, 12. / 19. Whereas the
putative fathers and lewd mothers of baftard children run
away out of the parifh, and fometimes out of the county,
and leave the faid baftard children upon the charge of the
parifti where they are born, although fuch putative father
and mother have eftates fufficient to difcharge fuch parifh ;
it is enabled, that it fhall be lawful for the churchwardens
and overfeers of the poor to take and feize fo much of the
goods, and receive fo much of the annual rents or profits

J5aftatDif» M9

ei the lands of fuch putative father or lewd mother, as
(hall be ordered by two jufticcs of the peace, towards
the difcharge of the parifli, to be confirmed at the feffion>^
for the bringing up and providing for fuch baftard child :
and thereupon it fhall be lawful for the feflions to make
Sifk order for the churchwardens or overfeers of the poor of
fuch parifh, to difpofe of the goods by fale or otherwife,
or fo much of them for the purpofes aforefaid as the court
ihall think fit, and to receive the rents and profits, or fo
much of them as fhall be ordered by the feflions as afore-
faid, of his or her lands.

And by the 6 G. 2. f. 31. If any finglewoman fliall
be delivered of a baflard child which is likely to be
chargeable to the parifh, or fhall declare her felf to be
with child and that the fame is likely to be born a baftard
and to be chargeable as aforefaid, and fhall before a jufticc
of the peace charge any perfon with having gotten her
with child; fuch juflice, on application of the overfeers,
may caufe him to be apprehended and imprifoned, unlefs
he give fecurity to indemnify the parifh, or to appear at
the next feffions, and to abide fuch order as fhall be made
in purfuance of the aforefaid flatute of the 18 El, But no
juflice of the peace fhall have power to fend for any
woman before fhe be delivered and one month after, to
be examined concerning her pregnancy, nor fliall compel
her to anfwer any queflions relating thereto.

2. By the 21 y, c, 27. Whereas many lewd women Death*
that have been delivered of baflard children, to avoid their
fhame, and to efcape punifliment, do fecretly bury or
conceal the death of their children, and after, if the
child be found dead, the faid women do alledge, that the
faid child was born dead; whereas it falleth out fome-
times (altho' it is hard to be proved) that the faid child
or children were murdered by the faid women their lewd
mothers, or by their ^procurement : it is enadled, that if
any woman be delivered of any iflue of her body, male
or female, vfhich being born alive fhould by the laws of
this realm be a baftard, and that fhe endeavour privately,
cither by drowning or fecret burying thereof or any other
way, either by her felf or the procuring of others, fo to
conceal the death thereof, as that it may not come to
light, whether it were born alive or not, but be conceal-
ed ; in every fuch cafe the faid mother fo offending fhall
fufier death as in cafe of murder, except fuch mother can
make proof by one witnefs at the leaft, that the child

I 4 (whofe

I20 jSaftatts.

(whofe death was by her fo intended to be concealed) y?^8
born dead.

If a woman be with child, and any gives her a potion
to deftroy the child within her, and {he take it, and it
works fo ftrongly that it kills her, this is murder ; for it
was not given to cure her of a difeafe, but unlawfully to
deftroy her child within her ; and therefore he that gives
her a potion to this end, muft take the hazard, and if it
kills the mother, it is murder, i Hale's Hiji. PL Crown.
429, 430.

If a woman be quick or great with child, if (he take,
or another give her any potion to make an abortion ; or
if a man itrike her, whereby the child within her is killed ;
though it be a great crime, yet it is not murder nor man-
daughter by the law of England, becaufe it is not yet in
rerum natura^ nor can it legally be known whether it were
killed or not. So it is, if after fuch child were born
alive, and after die of the flroke given to the mother,
this is not homicide, i H, H, 433.

But if a man procure a woman with child to deflroy
her infant when born, and the child is born, and the wo-
man in purfuance of that procurement kill the infant |
this is murder in the mother, and the procurer is ac-
cefTary. i H, H, 433.

Beadle. See fileCtp*

Y a conftltution of archbifhop Winchelfeay the parifl-ii-
oners fhali find, at their own expence, bells with
ropes.

Can, 2>2>. The churchwardens or queftmcn, and their
afiiftants, fhall not fuiFer the bells to be rung fuperftiti-
oufly, upon holidays or eves abrogated by the book of
common prayer, nor at any other times, without good
caufe to be allowed by the minifter of the place, and by
themfelves.

Can. III. The churchwardens fliall prcfent all perfons,
who by untimely ringing of bells do hinder the miniftef
or preacher. \

C^an. 15. Upon wednefdays and fridays weekly, the
uuniikr at the accullonicd hours of fcrvice, iliall rcfort

^ the church or chapel ; and warning being given to the
people by tolling of a bell, (hall fay the litany.

Can. 67. When any is pafling out of this life, a bell
fhall be tolled, and the minifter (hall not then flack to do
his laft duty. And aft^r the party's death (if it fo fall
.•ut), there fhall be rung no more but one fhort peal, and
pne other before the burial, and one other after the burial,

Benediaines. See ^OWtittttlt^^

JSenefice.

Fo R the prefentation to popifh livings, fee title

The term benefice comes to us from the old Romans,
who uUng to diftribute part of the lands they had con-
quered on the frontiers of the empire to their foldiers,
thofe who enjoyed fuch rewards were called beneficiariiy
and the lands themfelves beneficia. Hence doubtlefs came
the word benefice to be applied to church livings 5 for be-
fides that the ecclefiafticks held for life, like the foldiers,
^he riches of the church arofe from the beneficence of
princes. And thefe beneficia were not given by the Ro-
mans merely as a recompence for what was paft, but alfo
as an encouragement for future fervice.

In order to be legally intitled to a benefice, the feverai
following particulars are confiderable :

I. Prefentation^*

II. Examination.

III. RefufaL

IV. Admiffwn,

V. Inftitution^ or collation.

VI. Indufiion,

VII. RejuiJIles after indu5fion,

I. Prefentation,

Prefentation, nomination, and crollation are fomc- Prefentation,
mes ufed in law for the fame thing ; and yet they are ^^^'•
4 commonly

122 Benefice.

commonly diftingulfhed : for prefentation is an ofFering
of the clerk to the ordinary ; and nomination may be the
ofFering of a clerk to him that may and ought to prefent
him to 'the ordinary, by reafon of a grant made by him
that hath the power of prefenting, obliging him thereto ;
and collation is the giving of the church to the clerks
and is that a61: by which the ordinary doth admit and in-
ftitute a clerk to a church or benefice of his own gift, in
which cafe there is no prefentation. Watf c, i^.

For it is to be obferved, that the right of nomination
may be in one perfon, and the right of prefentation in
another. And this is, where he who was feifed of the
advowfon doth grant unto another and his heirs, that as
often as the church becomes void, the grantee and his
heirs fliall nominate to the grantor and his heirs ; who
(hall be bound to prefent accordingly. In which cafe, it
was agreed by the whole court in the cafe of Shirley and
Underhilly M. i6 Ja, that the nomination is the^fubftance
of the advowfon, and the prefentation no more than a
minifterial intereft ; and that if the prefentor (hall pre-r
fent without nomination, or the nominator prefent in
lUs own perfon, each fhall have his quare impedit, for
the fecurity of their refpedlive rights. And if the nomi-
nator negledl to appoint his clerk, till lapfe incurs, and
then the patron prefents before the bifhop collates, the
bifhop is bound to admit his clerk. Gtbf. 794. Mq. 894.
Muft be to a 2. Prefentation muft be to a void benefice. Thus in

void benefice. ^^ ^^^^ o{ Owen and Stainoe^ E. 34 Car, 2. Owen moved
for a mandamus to admit him a prebendary of St. David's,
and fet forth a cuftom, that they ufed to chufe a fuper-
numprary (all the places being full), who is admitted
upon the death of the next prebendary ; and fays, that hQ
was chofen a fupernumerary in fuch a year, and that orre
of the prebendaries died, and that Stainoe was admitted :
But the court refufed to grant a mandamus, and held the
cuftom to be void, and foolifh; for that there cannot be
an election but to a void place. Skin, 45.
By an infant. 3- Guardian by nurture, or in focage of a manor

whereunto an advowfon is appendant*, fhall not prefent
to the church, becaufc he can take nothing for the pre-
sentation for which he may account to the heir ; and
therefore the heir in that cafe fhall prefent, of what age
foevcr. 3 Inji, 156.

And of this opinion was the late lord chancellor King,,

in a caufe in the court of chancery, in the year 1732 i

who faid, that if the irifant were but a year old or young-*

2 ^Xi^

Benefice* 123

«r, they ought to put a pen in his hand, and guide it toi x
fign the prefentation. TFatf. c. 13. 2 Abr, Caf. Eq,
Arthtngton and Cov^rley,

Upon the fame reafon fubfifts the cafe of a patron be-.
earning bankrupt. The commifnoners may fell the ad-
vowfon ; but if the church be void at the time of the
felc, the vendee (hall not prefent to the void turn, but
'^e bankrupt himfelf, becaufe the void turn of a church
is not valuable. Gibf. 794.

4. If the right of prefentation is in coparceners, and By copar«ncrs,
they agree in the fame perfon, they are to join in the a<a leMntTfn co^*
of prefenting ; otherwise, the eldeft Ihall have the pre- mon,
ference, and afterwards the reft in their turns : but where

the right is in jointenants or tenants in common, and
there hath been no compofition in writing to prefent by
turns, they muft of neceffity join in the prefentation ; for
if they prefent lingly, the biftiop may refufe the clerk.
ihJi.iSe. Gibf.yg^.

5. If one be feifed of an advowfon in fee, and the By executors,
church doth become void, the void turn is a chattel j and

if the patron dieth before he doth prefent, the avoidance
doth not go to his heir, but to his executor, ff^atf, c. 9.

But if the incumbent of a church be alfo feifed in fee
of the advowfon of the fame church, and dieth ; his heir,
not his executors, fhall prefent : for although the advow-
fon doth not defcend to the heir till after the death of the
anceftor, and by his death the church is become void, fo
that the avoidance may be faid in this cafe to be fevered
from the advowfon before it defcend to the heir, and to be
vefted in the executor ; yet both the avoidance and defcent
to the heir happening at the fame inftant, the title of the
heir fhall be preferred as the more ancient and worthy.
Waif. c. 9.

If the teftator do prefent, and (his clerk not being ad-
mitted before his deatt) then his executors do prefent
their clerk ; the ordinary is at his ele<Stion, which clerk
he will receive. Watf. c. 9.

But in the cafe of a bifhop ; the void turn of a church,
the advowfon whereof belongeth unto him in the right of
his bifhoprick, by his death doth not go to his executor ;
but when the temporalties of^tjie bifhoprick are feifed into
the king's hands, the king fhall prefent. 2 Roll's Abr,

345- .

So if the parfon of a church ought to prefent to a vicar-
age ; if the vicarage becometh void during the vacancy of
the parfonage, the patron of the parfonage, and not the

executor

124 l&cnefice.

txccutor of the deceafed parfon, fnall prefent. 2 Itol^-
Ahr, 346.
By the huftind 6. If a fcnie covert hath title to prefent, fhc canno^
in light of his prefent alone, but the prefentation muftbeby hufband and
^''^^* wife ; and that, in both their names, and not only by the

hufband in right of himfclf and his wife. And altho* the
right of patronage in the wife defcends to her heir, yet
the right of prefenting during life belongs to the hufband
who is tenant by curtefy. Gihf. 794. Watf, c. 9.
By tenant in 7. If a man that is feifed of an advowfon takes a wife,

<i®wcr, and dieth ; the heir fhall have two prefentments, and the

wife the third ; that is to fay, the wife may in a proper
adion recover the third prefentation as her dower, or i;$
may be afligned to her for dower. Watf, c. 9.
By the moft- 8. Altho' in a mortgage in fee of a manor to which an

gagee. advowfon is appendant, the legal right of prefentation is

vefled in the mortgagee ; yet a court of equity will in-
terrupt that prefentation, and compel the ordinary to in-
ftitute the clerk of the mortgagor any time before fore-
clofure, it not being any part of the profi^§ of the eflate,
<S/r. 403.

But otherwife it is, where the advowfon it fetf only is
mortgaged ; for in that cafe the mortgagee can have nq
other fatisfadion but by prefenting. 2 P. Will. 404.
By the king du- 9. The king is patron paramount of all the benefices
ring the vacancy Jn England. In virtuc of which, the right and care of
a lihopnc . ^ujj^g ^jj {^^ churches as are not regularly filled by othep*,
patrons, belongs to the crown 5 whether it happen througI>
the negle£l: of others (as in the cafe of lapfe), or thro'
incapacity to prefent, as if the patron be attainted, or
outlawed, or an alien, or have been guilty of funony, op
the like. Gihf. 763.

Upon which ground, the king hath right to prefent to
all dignities and benefices of the advowfon of archbifhop-
ricks and bifhopricks during the vacation of the refpec-
tive fees. Not only to fuch, as fhall become void after
the feizure of the temporalties, but to all fuch as fhall
become void after the death of the bifliop, tho' before
actual feizure. And becaufe it is a maxim in law, that
the church is not full againft the king, till indu^liion ;
therefore tho' the bifhop hath collated, or hath prefented,
and the clerk is inftituted upon that prefentation, yet will
not fuch collation or inflitution avail the clerk, but the
right of prefenting devolves to the king. G'lhf. 763.
WatL c. 9.

^ An4-

jBentfice. 125

^. And it is faid, that this privilege which the king hath
t)f prefenting by reafon of the temporalties of a bifhoprick
Wing in his hands, fhall be extended unto fuch prefer-
jnents, to which the biihop of common right might pre-
fent, tho' by his compofition he hath transferred his
power unto others. And therefore when the temporaUies
of the archbifhoprick of York are in the king's hands,
the king (hall prefent to the deanry of York, altho' by
compofition betwixt the archbifhop and the chapter there,
the chapter are to eledl him : and this, becaufe the pa-
tronage thereof de jure doth belong to the archbifhop,
and his compofition cannot bind the king, who comes in
paramount, as fupreme patron : for of the whole bifhop-
rick the king is fupreme patron, altho' it be difmembred
into divers branches, as deans, and other dignities ; and
of ancient time all the bifhopricks were of the king's
gift, but afterwards the king gave leave to the chapters
to ele£l j yet the patronage notwithftanding remains in
the king. TVatf, c. 9. 2 RoirsAbr. 343. ^

10* Upon promotion of any perfon to a bifhoprick, the By the king, ©n
king hath a right to prefent to fuch benefices or dignities, pr^^ot'O" t<*»
as the perfon was poflefTed of before fuch promotion ; * °^"^ *
tho* the advowfon belongeth to a common perfon. This
right, of prefenting upon promotion by the king, as ma-
king the avoidance which would not otherwife happen,
did fpring from the practice of the popes, and is now an
uncontefted right of the crown ; and hath been ellablifhed
not only by long practice, but by many judgments upon
full and folemn hearings ; and that, whether the churches
are new or old, and how often foever this happens fuc-
cefTively by promotions to bifhopricks from the fame be-
nefice or dignity ; as was adjudged in the cafes of St
Martin's and St James's. Of late, the great queflion
hath been, on fuppofition of the right, how far it is an-
fwered, and the turn of the crown fatisfied, by the grant
of a commendam to retain fuch promotions, or any part
of them, together with the bifhoprick. Of which quef-
tion the folution hath been, that by a commendam for
life, and for the time of continuing in fuch a bifhoprick,
the turn of the crown is anfwered, and in fuch cafe the
proper patron fhall prefent, upon death or tranflation;
but that the right of the crown fhall not be defeated by
a commendam granted for a term of months or years,
certain and limited. Gibf 763.

And this right of the crown to prefent upon promotion,
defeats the right oi any grantee, who had the next avoid-
ance ;

11.

126 mntfitt*

ance , for his right was only to the next ; and the next
he cannot have, and therefore can have none. Gibf,
758. 763.

But by law in Ireland, no perfon can accept a bi-
(hoprick there, until he hath refigned all the preferments
which he hath in England : which preferments being
void before the acceptance of the bifhoprick, it fecmeth
that the king in fuch cafe fhall lofe the prefentation.
Jy the king in II. By the 25 Ed. 3. ft. 3. c. i. Touching ^refent--
jrejudice of an- metits to be made by the king^ to a benefice of holy churchy in
«btr» right, another's right by old title ; our lord the king^ to the honour of
god and holy churchy willeth and granteth^ of the affent of the
parliament^ that from henceforth he nor any of his heirs Jhall
not take title to prefent to any benefice ^ in any other'' s right of
any time of his progenitors ; nor that any prelate of his realm
he bound to receive any fuch prefentment to be made^ 7ior to do
thereof any execution ; ncr that any jufiice of the one place or
the other ^ may not nor ought not to hold plea or give judgment
upon any fuch prefentment to be made ; but that the faid king
and his heirs be for ever clearly barred of all fuch prefentments :
Jbving always to him and his heirs all fuch prefentments in an-
other's right fallen or to fall, of all his time^ and of the time
to come.

And by the 25 Ed. 3. ft. 3. c, 3. Whereas before this
time^ cur lord the king hath taken title to prefent to benefices at
the fuggeftion of many clerks ^ where the title hath not been true,
and by fuch prefentments and judgments thereupon given^ the
clerks have been received by the ordinaries of the places^ ^g^^'^^fl
god and good faith ^ and in depreffion of them which had good
and true title to the faid bejiefices ; now the king willeth and
granteth^ that at what time he fiyall make collation or prefent-
ment from henceforth to any benefice in another's rights that the
title whereupon he groundeth himfelf fhall be well examined that .
it be true : and at what time before judgment the title be found
hy good information untrue or unjufi^ the collation or prefent-
ment thereof made fiyall be repealed ; and the patron^ or the
poffeffor^ which fi)all fhew and prove the falfe title ^ fiyall have
thereupon writs out of the chancery as many as to him fiyall be
^ needfuL

And by the 13 R. 2. c. i. Whereas notwiihjlanding the
hfl recited flatutc^ fome. of the king's prefentees^ by favour of
the ordinaries be inflituted and indutied in benefices of holy
church without due procefs^ the parties not zuarned nor called^
and fomctimes taken by falfe inquefis favourably^ and the in-
cumbents in fuch manner put out \ it is ordained^ that the faid
Jlatute he firmly holden and kept : and moreover the king^ fir

the

MntUt* 127

^« the reverence of god and holy churchy doth will and grants that
if he prefent to any benefice that is full of any incumient, the
frefentee of the king Jhall not he received by the ordinary to the
benefice^ till the king hath recovered his prefentment by procefs
'^ rfthe law in his oivn court: And if any prefentee of the king
^'1 ie otherwife received^ and the incumbent put out without due
1st pvcefsy as afore is faid^ the faid incumbent Jhall begin his fuit
within a year after the indu^ion of the king^s prefentee ^t the
''^\leajl.

(Or at any time after ^ at his will 4 H. 4. c. 22.)
12. The lord chancellor, or lord keeper of the great By the loH
feal for the time being, hath right to prefent to the bene- chancellor, of

' . . 1 1 • J ^ • 1 benefices m the

fices appertaining to the king, under a certain yearly va- ^jng^s gif^,
lue in the king's books, Gibf 763.
Which privilege is faid to have been given to the lord

'« 4 chancellor, upon confideration that he had many clergy-

tVfl I men conftantly officiating under him, as thofe now do
who are ft ill called clerks of the chancery, and were

^i| heretofore perfons in holy orders. Johnf 31.

The foundation of which right will be beft underftood
by what was anciently declared in parliament upon that
head, in the rolls of parliament, in the fourth year of
Ed. 3. *' Becaufe it hath been ordained in times where*

/^ •* of there is no memory, and granted by the progenitors
'* of our lord the king, that the chancellors for the time

taJ ^* being fhould give the benefices which belong to the
" king to give, taxed at twenty marks and under, to the

lij " clerks of the chancery which have long laboured in
'* the place ; which thing hath been ufed from the faid
" time, till the bilhop of Lincoln was made chancellor,

k' ** who in all his time gave the faid benefices to his own

{a ** clerks, and to other clerks, againft the will of our
" lord the king, and againft the ordinance and ufage
** aforefaid ; may it pleafe our faid lord the king and his

??i/| " "counfel to ordain, fliiat the chancellors which ihall

tk ** be for the time, do give the benefices whith belong
to them to give for the csufe aforefaid, to the clerks
** of the faid place, as it hath been anciently ufed, and
" that this be done by ele6tion of the matters of the '
** chancery. Anfwer : Let this bill be delivered to the
** king, and it liketh the council, that it is fit to com-
•* mand the chancellor, that hereafter he give fu(^ be-
** nefices to the king's clerks of the chancery, the ex-
** chequer, and of both benches, and not to others."
Gibf 764,

Here

128 JSenefice*

• Here we fee, that the privilege extended only to bene^'
fices of twenty marks or under ; but now it is enlar^ecf '
to all benefices of 20 1. or under; which enlargement'
was probably made about the time of the new valuatioK
taken in the reign of king Henry the eighth. Gibf. 764.
And it hath been declared, that where the chancellor^
prefented to a benefice above that value, and the clerk
was inftituted and indud^ed, and another obtained a pre-'
fentation from the king, the fir ft clerk could riot be re-'t'
moved by the law ; becaufe the prefentation was under-
the great feal, and therefore by the king (in law), beings
in his name. But if the prefentation had recited (as h[
there intimated it ought to have done), that the benefice,
was under the value of 20 1. it had been void ; becaufe it;^
would have appeared upon record in the office of firft :
fruits, that the chancellor was deceived : or, if the mif-
take had appeared before induction, the king might havef
revoked it. Glhf, 764. Hob. 214.

But whereas it hath been faid {iVatf. c, 9.) that the.
king if he pleafe may prefent to fuch livings under the \
value of 20 1; it is to be obferved, that the claim of the-
lord chancellor or lord keeper for the time being is very
ancient ; and that nothing appears to have been ever de-
termined, or moved, in a judicial way, to the diminu-
tion of that ancient right. On the contrary, there is an>,
old writ in the regifter, which fuppofeth the right to be^ ^
in him, namely, the writ de prhno heneficio ecdejiajiico ha^,
bendo \ by which the king requireth the chancellor to
grant to a particular perfon the firft benefice that fhall
fall in the gift of the crown which he will accept ; and
the language of the writ is, Volumus quod idem A, adprmum ^
heneficium eccleftajlicum (taxatwnem vigintl mar car urn ex ce dens) ^;
vacatur um^ quod ad prafentationem nojlram pertinuerit^ (it\
quod duxerit acccptandum^ prafcntetur, Gibf. 764.
Whether an alien j^^ jt fecmcth that an alien, who is a prieft, may be

niaybe prefent- ^^^^^^^^^ ^^ ^ church. 2 RoW S Air, 348.

Thus in Dr Seaion's cafe, M. 8 Ja, who was born in-
Scotland before the union of the two realms, it was ad-
judged, that he was capable to be prefented to a benefice
in England ; and fo it was faid it would have been, if he^'
had been born in Flanders, Spain, or within any other
kingdom, friend and in league with the kingdom ofEng-
land ; as the bifhop of Spalato^ who was preferred to the^
dcanry of Windfor, and enjoyed the fame. And it was4
faid, that fuch incumbent might maintain any adlion,/^
real, pcrfonal, or mixt, for any thing concerning the-t

glebe

mm^tt. 129

riebe or the pofTelTions of the church, as prtors aliens
night have done : for altho' he be an alien born out of
he king's dominions, yet he bringeth his acSlion, liot i^
lis own right, but in the right of his church ; not in his
latural, but in his politick capacity s and therefore the
6i:ion will lie. Hughes^ c. 10.

14. It feemeth that a deacon, or even a layman, may a layman, ox
»e prefented j but he muft be made a prieft, before he ^ "^^""^^
an be inilituted. For by the ftatute of the 13 & 14 C.
.. c. 4. none but priefts only, ordained according to the
orm and manner by the book of common prayer prefer; -
•ed, are capable to be admitted to any parfonage, vicar-
ge, benefice, or other ecclefiaftical promotion or dignity
/hatfoever ; except only the king's profefTor of law with-
i.the univerfity of Oxford, who may hold the prebend of
ihipton in the cathedral church of Salifbury, altho' he
•e but a layman.

15. For a prefentee to have another benefice, altho' it A i^luralift,
e above the value of 81. a year in the king's books, is
j^ caufe of refufal, for that is at his own peril, and the
jrmer benefice only becomes void in fuch cafe. God»
7 1 . TVatf c. 20.

16. No perfon may prefent himfelf: and this is ac- Whether a man
online; to the rule of the canon law. But the books oi^^^.^'f^^^
ojnmon law fay, that tho a patron cannot prefent him-
jlf in form, yet he may offer himfelf to the ordinary,
ad pray to be admitted ; and that fuch admiflion may be
QOjd. But the more legal and regular way is, to m.ake

j ver the right to fome other before the avoidance. And
le fame books do alfo agree, that where the right of pre-
mting is veft'd in more perfons than one (as in the cafe
f jointenants, or joint executors) ; a prefentation of one
f the A made by the reft is good. Gibf, 794.

17. By a decretal epiille of pope Alexander the third. Whether the Ton
: is injoined, that if ony^Jons of prejhyters do hold churches^ "v after hjs U-^'
n which their fathers did ferve as parfons or vicars^ zvithout t'her.
ny other intervening ; they Jhall be removed^ whether they
uere born in the priejihood or not,

JVhether they were born in the priejihood or not] All the
hildren of clergymen in the times of popery were not il-
egitimate ; for a priefl: might have had children before he
:ntred into any orders, or whilft he was in the inferior
jrders, as oftiary, acolyth, or exorcift. For albeit the
'ubdeacon was charged to relinquilh his wife, yet thofe in
inferior orders might retain them. And it is faid, that
v€n priefts were generally marrie4 to the women they
V©L. I. K kept

130 J5enefice:

kept In thofe days ; and tho' they kept it fecret, for fe^
of deprivation, fometimes till their death, yet they ofter
took care that fuiRcient evidence of their being marriec
might appear after their death, when they were outo:
the reach of the canon law. Johnf, loi.

Otho. Jitbo^ the holy fathers did fo abhor the pojfeffmg oj
ecclefiajlical benefices by hereditary rights that they forbad, ih
fuccejjion eveti of legitimate children into their fathers churches \
yet feme y altho^ illegitimate^ do pre fume to invade fuch churches.^
without any inediate fiiccejfor : we do ordain^ that the prelatei
fhall not prefume immediately to injiitute or admit any fuch inti
the benefices which their fathers had, in whole or in partj
and if any fuch have obtained the like beneficeSy they Jhall%
deprived. Athon 47.

Without any mediate fucceffor'] For one intervening dif
joins and breaks the fucceffion. Athon 47.

In whole or in part] As to a portion, or penfion. Athof.

47-

Peccham. Seeing it is prohibited by law, that without f|

difpenfation ap^JloUcal, the fons of redors or prefhyters fi^cdi

not fucceed to the churches in which their fathers did ferve irri'

mediately or next before ; and fuch benefices are void, if th

contrary hereunto fi)all be done : we do command, that the prsf

lates Jhall make jiri£i inquiry into fuch vacant churches, am

take order therein as the law requires ; taking diligent heed^

that for the future they admit not any fuch perfons to the Im

benefices by any title whatfoever, that a way be not furreptl*

iioufiy opejied contrary to right to the fucceffion of ChrilFs in^

heritance, Lind. 4c. *

Without a difpenfation apo/IolicaJ] At this day, withou*
a difpenfation from the archbiftiop of Canterbury, t^
whom the whole right of difpenfation throughout boti
the provinces is transferred, by the flatute of the 25 H. Si
c. 21. By virtue of which ftatute, in little more than
fifty years from the time of the rcftoration of king Charles
the fccond, there iiFued out of the faculty office no left
than three hundred difpenfations of this kind, for the foB
to fucceed the father. Gibf. 796.

But in the cafe of Stoke and Sykes, M. 2 Car, it
held by Doddcridge and Jones, two learned judges,
this canon was not received here, i Still. 250.

And Mr Johnfon obfcrves, that there is no infta
fince the reformation, of any clerk deprived for fucce
ing his father without a difpenfation. And indeed t
great occafion of thofe canons againft the fon's fucceed"

'he father, i^ now removed ; which was, to difc'ouragc
he marriage of priefts, as one may fee by the aforefaid
:onftitutions. Johr?/. loi.

■ iS, Tho' the patron hath fix months before the lapfe Within what

■ ncurs, yet it concerns him not to delay prefenting till ^'"^^*
he fix months be almoft expired. For if he doth prefent

>ut one week before the fix months be ended, the ordi«
lary may pretend that he hath not time to examine the
lerk. Or if the ordinary refufe the clerk for inability^
ecaufe he is unlearned, or the like ; the patron will not
lave time to prefent anew within the fix months^but lapfe
^«aav incur. IVatf. c. 12.

■ In the cafes in which notice is to be given, the patron
legledting from year to year to prefent, lapfe doth not

Ancur to the ordinary ; yet if in fuch cafe a flranger doth
refent, and his clerk is inftituted and induced, and not

< J^ i|«rrupted by the patron until fix months (accounting
rom the induction) be expired, the patron is without
?me<ly for that turn : for that tho' he had not notice from
He ordinary of the avoidance (for which reafon the or-
inary can have no advantage of lapfe) yet the indu5:ion
f the ftranger's clerk is a notorious a(Sl, of which the
atron as well as the country might have taken notice.
\^ai/: c. 12.

But if a bifhop doth collate his clerk, either before he
ives notice of an avoidance, where notice is to be given,
r at any time within the fix months limited to the pa-
:pn to fill his church, the patron may at any time after
refent his clerk : for altho' wrongful collation maketh
ich a plenarty as {hall bar the lapfe to the metropolitan
ind king, yet it is no bar to the true patron ; and if the
ifhop doth admit the patron's clerk, the other is out ipfo
ifto ; or if the bifhop will not admit him, the patron

aw againfl the bifhop.** And therefore if the ordinary
i«th collate within the patron's fix months, and then the
M months pafs, no prefentation being made by the pa-
C6n J the ordinary, if he will have the benefit of a lapfe,
lufl collate of new : for the fiffl collation being by
snpong, cannot by time become rightful, and therefore

«Mh not put the patron to his quare impedit, for that it
«ras but as a provifion for the time, and there ought to
ic a new a£l before it fhall be a good collation. If^atf, c.
2.

If a church or benefice be of the patronage of the king,
r he hath a right of prefenting thereto j he can never
is turn to the ordinary, by his neglect of pre-
K 2 ferring.

132 asenefice;

lerring his clerk thereto. And in cafe the king doth flof
prefent, all that the ordinary can do, is to fequefter the
profits of the church, ^nd appoint a clerk to ferve th
cure. Watf. c. 12.

Alfo a donative remaining void never goes in lapfej
but the ordinary may compel the patron to fill the fame,
by ecclefiaftical cenfures. fVatf, c. 12.
Whether it may jg. It is faid, generally, in all the books, that pre-
be by word. fentation may be made either by word, or by writing,
If it be by word, the patron mull declare in the prefencc
of the ordinary : if by writing, it is no deed, but is in
the nature of a letter milTive to the bifhop. i Inji. i20(
2 Roll's Abr, 353.

But where a corporation aggregate of many doth pre^

' fent, it muft be under their common feal. Gihf. 794,

And fmce the ftatute of frauds and perjuries at leaft

(29 C. 2. ^. 3.)> it is neceflary that all prefentations fhi

be in writing.

And by the feveral ftamp a6ls, it is implied, that thitj
fhall be in writing, and not otherwife ; for thereby itis
cnadled, that for every fk'in or puce of vellum or parchment^
or Jheet of paper ^ upon which any prefentation or donatioi
which Jhall pafs the great feal of England^ or upon which any
collation to be made by any archbijhop or other bifljopy or any
prefentation or donation to be made by any patron whatfoeveTy
of or to any benefice ^ dignity ^ or ecclefiajlical promotion fhall h
ingrofed or written, Jhall be paid a double 40 5» Jlamp duty :
Provided that fuch benefice^ dignity, or promotion he of tht
yearly value of 10 I. or above in the king's books.

But if under that, it doth not feem to be clear, from
any of the faid a6ls, that any ftamp is neceflary. [Note
the feveral inftruments requiring ftamps, are inferted fpe-

cially under the title ^tantp;S?» If it come under the

denomination of a notarial a^; it fliall then be upon
2G. 6d. ftamp.]

Form of the pre- 20. And the fame may be in this form : To the mofffp^

iifntation. ver end father in god, R. by divine providence lord archbijhop

of Canterbury, primate of all England and metropolitan:

(If it be to the archbifhop of York, the word [^//] muft

be omitted : If to any other bifhop, then thus :)

To the right reverend father in god, R. lord hijhop' of

• or in his abfencc to his vicar general in fpirituals, m

to any other pcrfoji having or who Jhall have fnfficient authority^
in this behalf : I Sir W. P. baronet, true and undoubted pO"

'iron of the re6iory of the parijh church of [or, oj

the vicairoge of - ] in the county of ^ < and in youY\

dioceff^

1; IBmt^tt. 133

M \^ocefe of ' now vacant by the death [or, rejignaiiony

^1 [dr otherwife as the cafe fhall be] of A,^, the lafl Incum-
"^^i bent there ^ do prefent unto you CD. clerk ^ majier of artSy
' httmhly requefling that you will he pleafed to admit the fald
lap »C. D. to the fa'id churchy and to infiitute and caufe him to
' h |4f induSied into the fame^ with all its rights members and ap-
• ifurtenances^ and to do and execute all other things in this be-
t {I W$lf which Jlmll belong to your epifcopal office. In witnefs

'ritii \wuhereof I have hereunto fet my hand and feal^ the — day

refei j y ■ in the year

tis : Which being made in this form, if the biftiop be in-
Ul ihibited, or the fee voided, before inftitution is had from
the immediate bifhop ; yet the prefentation is good to th$
etropolitan, or other guardian of the fpiritualties. IVatf,
c. 15.

If a corporation in prefenting doth miftake the name of
their foundation, tije prefentation is void ; therefore when
a provoft did prefent by thp name of the provoft of the
queen in Oxon, whereas it fhould have been, aula fcho-
larium reginee de Oxon^ according to the foundation ; it
was adjudged, that by reafon of the omiflion of the word
fcholarium, feveral prefentations did not make an ufurp-
ation, becaufe the prefentations were void. M, 8 J a, Dr
Ayry v. Sir Richard Lovelace. Watf. c. 20. i Bulft. 91.

21. Prefentation, tho' duly made in all refpe6ts, may Whether it may
be revoked^ or varied. As to the power of revocation^ the ^« revoked.
general do(5lrine of the books feemeth to be, that none but
the king can revoke : which he may do at any time be-
fore induction ; as he may alfo prefent a fecond clerk, and
fuch prefentation fhall be a good repeal of the firft, ef-
pecially if care is taken to free it of all fufpicion of be-
ing obtained by fraud in deceit of the king, by making
exprefs mention of the firft prefentation. In like manner,
if the king dies before the induction of his clerk, this is
faid to be a revocation*?n law. And the general confe-
quence of a right to revoke in any cafe is, an obligation
upon the bifhop not to admit againft fuch revpcation,
upon pain of being a diflurber. Gibf 795. Watf, c,
20.

But it doth not feem to be clearly fettled, that a com-
mon perfon alfo may not revoke a prefentation, before
admiffion and inftitution thereupon. And in the cafe of
Stoke and Sykes^ M. 3 Cha, Doderidge faid, that the ci-
vilians affirm, that a lay patron cannot revoke his pre-
fentation, but he may cumulando variare^ and fo the or^
4inary fhall have cledion to inftitute which of them he

K 3 will,

134 a^cncfice.

will, but that a fplritual perfon cannot vary at all ; h\Xt j
he faid, that by the common law, without queftion, "a \
patron may revoke his prefentation. Latch, k^i, 'nt

And what is faid in the books that the king only c^
revoke, feemeth to intend after injiitution^ the church not
being full againft the king until the indudlion ; but after
inftitution it is certain a common perfon cannot revoke,
it being then too late, the church being full, with refpe6k
to him, by the inftitution.

As to the power of varying ; it is agreed on all hands,
that this may be done by a common perfon ; that is, after
one clerk hath been prefented, he may (before admiilion
given) prefent another ; but with this difference from a
revocation, that where a patron doth thus vary, cumu-
lando, the ordinary may chufe and admit which of the
clerks he pleafeth. Gibf. 795. JVatf, c. 20.

But this power of varying belongs to laymen only, and
not tp eccleiiaftical perfons of any kind ; becaufe they are
fuppofed in law to be competent judges of the fufficiency
of the perfon, and do therefore proceed by judgment and
election ; and whoever ele6^s an unfit perfon, is ipfo jure
deprived of the power of electing, Gibf, 795. Watf c.
20.

II. Examination,

Original right of I, It IS very wcll known, that in the firft fettlemcnt of
T"b fl^o'°'^ *" ^^^ church of England, the bifhops of the feveral diocefcs
had them under their own immediate care ; and that they
had the clergy living in a community with them, whom
they fent abroad to feveral parts of their diocefes, as they
fi\w occafion to employ them ; but that by degrees, they
found a neceflity of fixing prefbyters within fuch a com-
pafs, to attend upon the fervice of god amongft the in-
habitants ; that thefe precinds, which are fmce called
parifhes, were at firft much larger ; that when lords of
manors were inclined to build churches for their own
conveniences, they found it necefTary to make fome en-
dowments, to oblige thofe who officiated in their churches
to a diligent attendance : that upon this, the feveral bi-
fhops were very well content to let thofe patrons have
the nomination of perfons to thofe churches, provided
they were fatisfied of the fitnefs of thofe perfons, and thtit.
it were not deferred beyond fuch a limited time. So ttfati
the right of pitronage is really but a limited truft ; and
the bifhops are flill in law the judges of the fitnefs of
the perfons to be employed in the feveral parts of their
dioccfcb-. But the patrons never had the abfglute difpofal

JBcneffte- 1 3 s

l«(ij.jllf^ their benefices upon their own terms ; but if they did
\\ki |iot prefent fit perfons within the limited time, the care
■i of the places did return to the bifhop, who was then
bound to provide for them, i StilL 309.

And by the ftatute of Articuli cleri, 9 Ed. 2. 11. r.
C. 13. it is enacted as followeth : // is defired^ that fpiri-
tual perfons y whom our lord the king doth prefent unto benefices
of the church {if the bifhop will not admit them^ cither for
lack of learnings or for other caufe reafonable) may not be un^
der the examination of lay perfons in the cafes aforefaid^ as it
is now attempted^ contrary to the decrees canonical -.y but that
they may fue unto a fpiritual judge for remedy^ as right fhall
require. The anfwer : Of the ability of a parfon prefcnted
.unto a benefice of the churchy the examination belongeth to a
fpiritual judge \ fo it hath been ufedheretofore^ and fhall be
hereafter.

Of the nfibility of a parfon prefented] De idoneitate per-
fonae : So that it is required by law, that the perfon pre-
fented be idonea perfona ; for fo be the words of the king's
writ, prafentare idoneam perfonam. And this idoneitas con-
fjfteth in divers exceptions againft perfons prefented :
I. Concerning the perfon, as if he be under age, or a
layman. 2. Concerning his converfation, as if he be cri-
minous. 3. Concerning his inability to difcharge his
paftoral duty, as if he be unlearned, and not able to feed
lis flock with fpiritual food. 2 Infi. 631.

And the examination of the ability and fuiEciency of
the perfon prefented belongs to the bifhop, who is the
^cclefiaflical judge; and in this examination he is a judge,
^nd not a minifler, and may and ought to refufe the per-
ion prefented, if he be not idonea perfona. 2 Infl. 631.

^he examination belongeth to a fpiritual judge] And yet
,}n fome cafes, notwithflanding this flatute, idoneitas per-
^jona fhall be tried by tfce country, or elfe there fhould be
111 failure of juftice, which the law will not fuffer : as if
'ftie inability or infufficiency be alledged in a man that is
dead, this cafe is out of the flatute 5 for in fuch cafe the
bifhop cannot examine him ; and confequently, tho* the
matter be fpiritual, yet fhall it be tried by a jury; and
the court, being afTifled by learned men in that profeiTion,
may inftrudl the jury as well of the ecclefiaftical law in
that cafe, as they ufually do of the common law. 2 Jnjl,
632.

And fo it hath been ufed heretofore] So as this a(^ is a de-
claration of the common law and cuflom of the realm.
a /«/?. 632.
H K 4 2. By

13^ Benefice.

Time for ex^mi- j. By aconftitution of archbifhop Langton : fVedoltt'^
nation. y^^^ ^j^^^ ^jr ^^y ^^^^ ^^ canonically prefented to a churchy anct

there be no oppofetion ; the bijhop Jhall not delay to admit him:
longer than two months^ provided he he fuffc'ient»

But by Can. 95. Albeit by former conjlitutibns of the'
church of England^ every bijhop hath had two months fpace te^
inquire and inform, himfelf of the fufpciency and qualities »f
every tnini/iery after he hath been prefented unto him to he /«-
Jliiuted into any benefice^ yet for the avoiding offome inconveni-
ences^ we do now abridge and reduce the f aid two months uHti-
eight and twenty days only. In refpeSi of which ahridgmerit'
we da ordain and appoint^ that no double quarrel Jhall hereafter
he granted out of any of the archbijhops courts^ at the fuit of
any minijier whatfoever^ except he Jhall firjl take his perfonal
oath^ that the faid eight and twenty days at the ledji are ea*.
pired after he firjl tendred his prefentation to the bijhop^ anSt
that he refufed to grant him injiitution thereupon ; -fir Jhall en-
ter into bond with Jufficient fureties to prove the fame to b^
true ; under pain of Jufpenfton of the granter thereof from thd
execution of his office for half a year toties quoties, to hi
denounced by the faid archbijhops and nullity of thk double
quarrel aforefaid fo unduly procured^ to all intents and pur*
pofes whatfoever, Always provided, that within the faid
eight and twenty days, the bijhop Jhall not iiijlitute any other /d-
the prejudice of the faid party before prefented^ fub pcehi'
nullltatis.

Every b'ljliop hath had] The canon mentions bifhops
only, becaufe inftitution belongeth co them of common
right; but it muft alfo be underftooci to extfend to others,
■who have this right by privilege or cuftom, ^s deahs^
deans and chapters, and others who have peculiar jurif-
diclions. Concerning whom it hath been unanimoufly
adjudged, that if the archbifhop (hall give Jnftitution to*
any peculiar belonging to any ecclefiaftical perfon or body,
it is only voidable ; becaufe they being not free from his
jurifdi(Stion and vifitation, the archbifhop fhall be filppofed,
to have a concurrent jurifdidlion, and in this cafe only
to fupply the defe(£ts of the infciiors, till the contrary ap-
pears. But if the archbifllop grant inftitution to a pecu-
liar in a lay hand, it is null and void ; becaufe he can
have no jurifdi(Slion there. Gibf. 804.

To inquire and irifirm himfelf] In anfwer to an bbjeflion
made, that the bifhop ought to rt ^^eive the clerk of him
that comes firfl, otherwife he is a difturber ; Hobart faith,
the law is contrary : for as he may take competent time

^Benefice. 437

to examine the fufficiency and fttnefs of a di*fk, fb he
may give convenient time to perfons interefted, to take
knowledge of the avoidance (even in cafe of death, a^S
where notice is to be taken, and not giv^en) to prefent
their clerks to it. Agreeable to what is held elfeV^^heVe,
diat it was a good plea for the ordinary, and no refufat
of the clerk, that the ordinary having other bufinefs, com-
manded the clerk to come to him afterwards^ to be ex-
amined; and that the clerk not returning, and the fi«
months paffing, the ordinary w^s well intitled to the lapfe.

' Gibf. 804, 805. 3 Lcon. 46. ^ ^

3. Can. 39. No bijhopjhall Injlitute any to a beifefice^ who MannerofoB*
hath been ordained by any other bijhop^ except lie firft Jhew nnto '"*"*'*®"*
him his letters of orders -, and bring him a fufficient tefiimdny '

of his former good life and behaviour^ if th^ bijhop fhall
require it ; and lajlly^ Jhall appear upon due examination to be

I worthy of his rmniflry.

I ' Except he frjl Jloew unto him his letters of orders] And
^y the 13 & 14 C. 2. c. 4. No perfon fliall be capable
to be admitted to any parfonage, vicarage, benefice^ or
other ecclefiaflical promotion or dignity whatfoever, be-
fore fuch time as he fhall be ordained priefl.
[ And bring a fufficient tejlimony of his former good life ana
behaviour] By the ancient laws of the church, and parti-
cularly of the church of England, the four things in
which the biftiop was to have full fatisfadlion in order to
ihftitution, were age, learning, behaviour, ana order^.
And there is fcarce any one thing which the ancient ca-
nons of the church more peremptorily forbid, than the
admitting clergymen of one diocefe to exereife their func-
tion in another, without firft exhibiting the letters tefti-
monial and commendatory of the bifhop, by whom they
were ordained. And the conflitutions of the archbiftiops
Reynolds and Arundel ftiew, that the fame was the knoWn
law of the Englifh church, to wit, that none fhould be
admitted to ofHciate (not fo much as a chaplain, or cu*
rate) in any diocefe in which he Was not born or or-
dained, unlefs he bring with him his letters of or-
ders, and ktters commendatory of his diocefan. Gibf
806.

Notwithftanding which, in the cafe of Palmes and the
bifhop of Peterborough^ T. 33 -£/. On a quare impedit
brought againft the bifhop, the bifhop pleaded that he
demanded of the prefentee of the plaintiff to fee his let-
ters of orders, and he would not fhew themj and alfo

138 Benefice.

he demanded of him letters mifllve or teftimoniaj^
teftifying his ability; and bccaufe he had not his
letters of orders, nor letters miflive, nor made proof of
them otherwife to the bifhop, he defired leave of the bi^
ihop to bring them ; and he gave him a week, and he
went away, and came not again, and that the fix months
pafled, and he collated by lapfe. And upon demurrer,
it was adjudged for the plaintiff; for that thefe were
jiot caufes to ftay the admittance, and the clerk is not
bound to fhew his letters of orders or miffive to the bir.
ihop, but the bifhop muft try him upon examination for
one and other. Cro, Eliz, 241.

Which moft of the books take notice of as a pretty
hard cafe, and in which perhaps the bifhop's taking ad-
vantage of the lapfe might be fome part of the confide-
ration. And thefe words of the canon (which was made
not many years after) feem to have fome reference or re-
trofpedt to that determination.

But it is to be obferved, firft, as to the letters of or-
ders, that it was only adjudged not to be necefTary to
produce the very letters of orders ; for they might be
loft, and proof thereof might otherwife be very well made
from the regiftry of the bifhop who ordained the clerk;
or elfe it would follow, that every clergyman whofe let-
ters of orders are loft, or confumed by fire or other ac-
cident, would be incapable to be admitted to a benefice.
And as to the letters teflimonial ; the bifhop charged,
that he did not bring fuch letters tsjHfying his ability^ which
the court feemeth to have underllood of his ability as to
learning, of which without doubt the bifhop mull: judge
upon examination ; but the bifhop ought to have fet forth,
that he did not produce letters miffive or teflimonial of
his good life and behaviour.

Jnd laftly JhaU appear^ upon due examination^ to he worthy
of his minijiry'] As to the matter of learning, it hath been
particularly allowed, not only by the courts of the king's
bench and common pleas, but alfo by the high court of
parliament, that the ordinary is not accountable to any
temporal court, for the meafures he takes, o^ the rules
by which he proceeds, in examining and judging (only
he mull examine in convenient time, and refufe in con-
venient time) ; and that the clerk's having been ordained
(and fo, prefumcd to be of good abilities) doth not take
away or diminilh the right which the fiatute above re-
cited doth give to the bilhop to whom the prefentution

%tmitt' 139

» J Ji^ ma<i^i to examine and judge. Gihf,Soy, ' Shotv, S?.
I ij. Mod. 134. 3 I.^'y. 311. ;■ .'^:-f:!t"

<• In the cafe oi Albany and the bifhop of Sr. Afaph^y^^
^'f Eliz, the want of knowledge in the Welfh tongue,
Was declared to be a good caufe of refufal, where the
fervice was to be performed in that language ; as ren-
4lring the clerk uncapable of the cure : nor did it avail
to alledge, that the language might be learned, or that
the part of the cure he was uncapable of might be dif-
charged by a curate. Gibf. 807.

• The law is the fame, if the perfon prefented doth not
underftand the Englifh tongue ; for in fuch cafe, the bi-
shop may refufe him for incapacity. Watf, c. 20.
-■ Where there is a mixture of divers languages in any
^lace, the rule of the canon law is, that the perfon pre-
iented do underftand the feveral languages. Gibf, 807,

III. Refufal.

' 1. The moft common and ordinary caufe of refufal is Caufes of rcfuiaU
^ant of learning.

- But there are alfo many other caufes for which a clerk
.prefented may lawfully be refufed ; as, if he be perjured
before a lawful judge ; or if he be an heretick or fchif-
matick; or irreligious ; or (as is faid in the old books)
if he is a baftard, and not difpen.ed withal; or if he is
within age; or if he or is patron be excommunicated
for the fpace of forty days ; or if he be outlawed ; or
guilty of forgery ; or hath committed fimony in the pro-
curing of the prefentment he brings, or of another pre-
fcntment to a former benefice ; or hath committed man-
flaughter, that is, if he be attainted thereof, and not par-
doned ; and it is faid, that the ordinary may refufe a
clerk upon his own knowledge for an offence committed
by him, which is a good caufe of refufal, altho' he be
not convid^cd thereof by the law ; and this (hall be tried
by iflue, whether it be true or not: And generally, all
fuch as are fufficient caufes of deprivation, are alfo fuffi-
cient caufes of refufal. Waif, c. 20.

2. If the clerk refufed be the prefentee of a bifhop. Notice to the
or other ecclefiaflical patron; the ordinary is not bound P^^fo^o^'"^**-
rto give notice of the refufal : or if he fliould do it, fuch
patron can never revoke nor vary his prefentation, by
prefenting one afterwards that is better qualified, without
the ordinary's confent ; the law fuppofing him that is a
?:^'ritual perfon, to be capable of chafing an able clerk.:

And

i4d IBtntfitt.

And fo lapfe m^y come to him unavoidably, if the cleric
firft prefented be juftly refufed. But if the clerk prefent-
ed be the prefentee of a lay patron, and be refufed by the
ordinary ; the ordinary in moft cafes is bound to give no-
tice to the patron of fuch refufal : for if in fuch cafe no
njoticc is given, no lapfe can run, tho' no other clerk be
prefented ; nor if notice be given, unlefs upon trial the
clerk was juftly refufed. But if a clerk prefented be for
good caufe refufed, and notice thereof be in due time and
manner given to the patron, and no other clerk be pre-
fented in time ; lapfe doth run to the ordinary. iP^atf, ^

C. 12,

In the cafe of Hele and the bifhop of Exeter^ M. 3 TV,
It was faid by the court ; that if the ordinary refufe be-
caufe he is criminous, he need not give notice of the re-
fufal ; for the crime is as much in the cognizance of th?
patron as of the bifhop ; but if he refufe becaufe illiterate,
he muft give notice. 2 Salk, 539.

And in general, lord Coke fays, if the caufe of refufal
be for default of learning, or that he is an heretick, fchif- -
matick, or the like, belonging to the knowledge of ec-
clefialtical law, there the ordinary muft give notice there-
of to the patron ; but if the caufe be temporal, as felony^
or homicide, or other temporal crime, or if the difability
grow by any zdi of parliament, or other temporal law,
there no notice need to be given, unlefs notice be pre-
fcribed to be given thereby. 2 Inji. 631.

But in the cafe of the King and the bifhop of Hereford^
where the refufal was of a common drunkard and coni--
mon fwearer, who was prefented by the king, and it was
argued that in this cafe no notice need to be given, be-
caufe nullum tempus occurrit regi, and no lapfe could incur
if he did not prefent again within the fix months; yet
the court rcfolved, that the. plea was bad, for want of
notice alledged. Gibf. 807. Cornytis. 358.

At leaft in all cafes it is fair and equitable, to give
notice to the patron of the refufal, whatever the caufe
may be ; for it is very pofTiblc that the pcrfon pre-
fented may be many ways unfit, and the patron not
know it.

And it is not enough that the bifhop barely give no-
tice of his refufal, unlefs he alfo fignify the caufe of
it. For altho' the bifhop is judge in the examination,
yet inafmuch as the proceedings of the bifliop are not of
record, the caufe of refufal is traverfablc; and if it be
Uaycrfed, a^ad the party refufed be liis'ing, this fhall bo

tried

tried by the metropolitan ; and if he be dead, this fliall
be tried by the country. 5 Co, 58.

And fuch notice ought to be given with as much fpeed
as conveniently may be ; and therefore, where the ordi-
nary delayed to give notice to the patron for the fpace of
twenty two days, it was held that the notice was infuf-
ficient, and that therefore the bifhop fhould have no ad-
vantage by lapfe. IFaff. c. 20.

And notice is to be given in fuch cafes to the per-
fon of the patron, if he be within the county where the
church is at the time of the giving thereof; otherwife it
is to be given to him by an inftrument in writing, affixed
to the door of the church to which the clerk was pre-
fented ; but if notice be given by fuch inftrument as
aforefaid, before the patron be inquired after, and a re-
turn made that he is not to be found within the county,
fuch notice is not good. Wt^tf, c. 20.

When the bifhop hath given notice of his refufal of
a clerk, this doth not give the patron a longer time to
prefent in, than he had before. For if the church be
ib void, that the bifhop is not bound to give the patron
notice of the avoidance, the patron muft prefent his fe-
cond clerk (if he think his firft prefentation to be juftly
refufed) within the fix months, accounting from the time
the avoidance happened. But if the church be void by
fuch means, as that the fix months do not run without due
notice to the patron of the avoidance, and the patron doth
prefent his clerk before the ordinary hath given him any
.notice thereof; .if the ordinary doth refufe his clerk, and
give notice of his refufal, yet the patron (as it feemeth)
hath fix months, accounting froni the notice of the bi-
ihop's refufal, to make his fecond prefentment in, before
lapfe can incur. But if the bifhop had given notice of
the avoidance before the patron pre fen ted, and then he
refufeth the patron'5'*clerk for jufl caufe, and doth give
notice thereof, the patron's fix months are to be account-
ed from the lirft notice. IP^aif. c. 20.

If the bifhop refufe a clerk for infuificiency, and the
patron prefents another, and the bifhop admits the firfl,
he is a difturber ; for having once refufed him for infuf-
iiciency, he cannot afterwards accept him. G-i:f. Soy.

3. When the bifhop doth without good caufe refufe, Remedy for the
or unduly delay to admit and inftitute a clerk to the church ^;^ j^ lefufed, by
to which he is prefented, the clerk may have his remedy jni'^hgj'^j^'ty^^
againft the bifhop in the eccleliaflical court, as the patron comt.
•may in the temporal court.

2 This

142 Benefice.

This remedy the clerk may have before the ordinary t3
whom appeals are to be made, by the way of a duplex
querela; that is to fay, if a bifhop doth refufe, then
before the archblfhop in his court of appeals ; if an arch-
bifhop doth refufe, then before the delegates.

And if the bifhop doth admit the clerk, and then doth
refufe to inftitute him ; the clerk may have the fame re*
medy againflthe ordinary, to inforce him to do his duty :
that is, the clerk prefent-ed having exhibited his prefen-
tatlon to the bifhop, or to his vicar general (having
pov^er to inftitute, and being refufed or unjuflly delayed,
and complaining to the judge of appeals thereof; the
judge is wont to write to the bifhop in form of law, and
this writing they call a duplex querela.

This duplex querela is to contain a monition to the
bifhop, or to his vicar general (having power to give in-
ftitution) that within a certain time, as within nine, or
fometimes fifteen days, he admit the party complaining ;
and alfo a citation, whereby the bifhop may be cited to
appear by himfelf or pro^lor at a day after, in cafe he
cloth not Inftitute as aforefald, to fhew caufe why, by
reafon of his neglecSt of doing juflice, the right of in~
ilitution Is not devolved to the fuperior judge. It is alfo
expedient, that the fame duplex querela do contain an In-
hibition to the bifhop and to fuch vicar general as afore-
faid, that nothing be done by either of them pending the
fuit, to the prejudice of the party complaining.

The clerk refufed, having obtained from the proper
judge a duplex querela, is to take care that fome perfoii
fufficiently learned for that purpofc, do admonifh the bi-
fhop to admit him and to do him juflice, within the time
mentioned in the duplex querela, and alfo according to
the contents thereof to inhibit the bifliop.

If the bifliop, after he Is admonifhed to inflitute the
prefentee, fhall exprefly refufe to admit him ; the man-
datory may prefently cite the bifhop to appear, according
to the contents of the duplex querela ; but if no refufal
be made, the bifhop being admonifhed as aforefald, the
clerk is firfl to repair to the bifhop or fuch his vicar ge-
neral as aforefald, on the third day after if no more than
nine days are mentioned in the duplex querela, or on the
fifth day after if fifteen days be appointed therein, and to
exlilbit his prefentation, and to require admiflion and ju-
flice in all refpec^s to be done to him, and offer himfelf
ready to fubfcribc the thirty nine articles of religion, and
the declaration as required by law, and to take the oaths,

and

jBenefice.' »43

;^nd to do every other thing required by law to be of him
performed, in refped of his admiflion and inftltution into
that benefice. And this he is to do two times more, if
not received, namely, every third or every fifth day, ac-
cording to the time given in the duplex querela. But if
he cannot come to the prefence of the bifhop, he is to
proteft his readinefs to receive his admiflion and to fub-
fcribe as aforefaid, and to have at leafl: two witnefle?
thereof.

If the bifhop (hall not do the clerk juftice within the
time limited j then, after the expiration thereof, the party
prefented is to take care that the bifhop be cited accord-
ing to the tenor of the duplex querela.

If the perfon that is to cite the bifhop cannot come to
^>is prefence, he is to fignify to . fome of the bifhop's
fervants, that he hath a duplex querela at the inflance of
fuch a clerk prefented to fuch a church, to be by him ex-
ecuted, and to defire that he may come to the prefence of
the bifhop. If he may not come to the bifhop's prefence,
fo that he cannot cite him ; the prefentee k to flay till the
day on which the bifhop fhould appear had he been cited ;
at which time he is to be called -, and if he appear not by
himfelf or pro61:or, a citation viis et modis is to be decreed,
which is to be executed perfonally if the bifhop may be
fpoken with, and if not, then by affixing it to the out-
ward doors of the bifhop's palace, or of the houfe where
the bifhop refides, or of his cathedral church.

After the bifhop is cited, whether by the firfl or fecond
mandate, the perfon citing is to certify to the clerk or his
pro£lor, by his letters, or by fubfcribing upon the back-
fide of the mandate, the day of executing the monition
to inflitute, and the inhibition, the feveral days of the
prefentee's afking admiflion, and the day of his citing the
bifhop ; and if the bifhop refufed exprefsly to admit, that
alfo is to be certified.^*

. If the bifhop appear not at the day, upon the peti-
tion of the prefentee's pro61:or, the bifhop being thrice
called, is by the jud«ge pronounced contumacious ; and
as a punifhment of his contumacy, the judge doth pro-
nounce the right of inflituting the pfefentee to his be-
nefice to be devolved to the fuperior judge, and doth
decree that the clerk fhall be inflituted, and that he will
write to the archdeacon or ordinary of the diocefe where
tbe church is, -commanding him to indudl him. ^ -,

:o,::^Lj^^^m

■

144 J5ene€ce»

Then the clerk is remitted (if the proceedings be in the
court pf arches or audience) to the archbifhop to examine
hi^ ; and the archbiihpp approving of him, returns hiixi
with h\s fat injlitutio to the judge ; who, before he infti-
tutes, is wont to require a bond of the prefentee to fave
him harmlefs on that account.

But if the biflipp dpth appear, and doth alledge fome
j.uft caufe why he refufed the clerk ; then they are to pro-
ceed to the trial of that, as in other fummary caufes.

If the caufe alle.dged by the biihop be not proved, the
judge pronounceth as before, for his own jurifdidtion ;
and the biihop is to be condemned in e^pences ; and fo
if he doth alledge an infufficient caufe, as that the church
is litigious -, fpr this he pught to have tried.

If the biihop will not defend the fuit, the pretended
incumbent may do it, and alled.ge that the church is full
x)f himfelf : But then the jud^e will iirft pronounce fen-
\^ence for his own jurifdi£tion ; becaufe the biftipp hath
alledged nothing to oppofe it. 3ut if the bifhop will al-
low fuch incumbent to defend the fuit in his own name,
then the judge cannot decree for his own jurifdi6tion,
until the caufe is determined. Clarke^ Querela DupL
fFaif c. 21. I Ought, 237 — 248.

And this way of proceeding in this cafe againft a bifhop,
is allowed of by the common law j and no prohibition
iieth for the bifhop. JVatf. c. 21.

Which courfe of proceeding in the ecclefiaflical court,
is the moft proper remedy that the clerk can ufe, in cafe
lie be refufed by the bifliop upon the account of any per-
fonal fault or defe£l : not only becaufe by fuch courfe
the clerk in a fhort time, at lefs charge, and lefs hazard
of lofmg his living by errors (which are eafily fallen into
at common law), may gain inflitution ; but alfo becaufe,
.although his patron bring his a£lion at common law for
refufmg his clerk for crime or infufficiency, fuch caufe of
refufal fhall be tried by a fpiritual judge, to wit, if a
bifhop refufe, by the nietropolitan of the province. Watf,
jc. 21.

And the ecclefiaflical judge in this cafe, is to make
certificate of his judgment to the temporal court ; upon
which they may proceed to fentence, in a quare impedit
or darrein prefcntment. TVatf. c. 21.

If the archbifhop of York refufe, it is faid that the
caufe of refufal fhall be tried by himfelf only. JVatf^
C. 21.

But

But If the party in whom difability is alledgec!, be dead
before his fecond examination, (o as he cannot be exa-
mined ; the trial of his ability or difability (hall be by the
country. So in a quare impedit againft the archbifhop of
Canterbury, if the ability of the clerk come in quefHon,
it is faid that it fhall be tried by the country, and not by
any inferior ordinary ; and the fame reafon feems to be
as to the archbifhop of York. IFaif. c. 21.

4. If the patron finds himfelf aggrieved by the ordina- ^/^;^^''^''y/^;^^^
ry's refufal of his clerk ; he may have his remedy by quare temporal court,
impedit in the temporal court. by quare impe-

And in fuch cafe the ordinary muft fliew the caufe of *^'^'
his refufal fpecially and directly (not only that he is a
fchifmatic, or heretick, for inftance ; but the particular
fchifmatical a<5ts or heretical opinions that he is charged
withal tnuft be fet forth). For the examination of the
kifhop doth not finally conclude the plaintiff: and with-
Idtft (hewing fpecially, the proper court cannot inquire
and refolve, whether the refufal be jull or no. And if
the caufe of refufal be fpiritual, the court fhall write to
the metropolitan to certify thereof; or if the caufe be
lemporal and fufficient in law (which the temporal court
fhall decide) the fame may be traverfed, and an iifue
Thereupon joined, and tried by the country. 2 Injl. 631.
5 Ge, 58.

Bttt in cafe of refufal for infufficlency in learning, it
n'SA adjudged in parliarhent, in the cafe of the bifhop ef
^xeUr againft Hele^ to be a good plea oyL the part of the
bifhop, that the prefentee was a perfon not fuffident or ca-
*)(tbk in learning to have the faid church \ and there refolved,
^hat he need not fet forth in what kinds of learning, or
to what degrees, he was defe£live. 2 ^alk, 539. Gihf
I07.

IV^ AdmiJJion,

In a larger fenfe, admiffion is fometimes ufed to include
alfo inftitution ; but more frequently, and properly, ad-
miffion is taken to be, when the bifhop upon examination
ieth approve of the prefentee, as a fit perfon to fervc the
e«re of the church to which he is prefented ; and inflitu-
tion is that a6t by which he doth commit to him the cure
thereof. TFatf. c. 15.

And we find fometimes alfo the pra£llce of inveftiture

by the bifhop, in our ecclefiaftical records ; i'pfum in-

fiituit Bt inveflivit annuk fuo ; 'whioh is frequently repeated

~ OL. I. L in

146

Benefice.

Difference be-
tween inftitu-
tion and colla-
tion.

Oath agalnfl:
fimony.

Oaths of alle-
giance and fu-

Oath of cano-
nical obedience.

Oaih of refi-
4cQce.

Siihrrriptlon to
rh'' tt.iriy ntJ\c
a.iHflt;.-,

in archbifhop P^ckham'a regifter (and is in ufe to this day
in the diocefe of St. Jfaph)^ and is mentioned as diftindt
from the admiiTion, inftitution, and indudion, Gilj.
808.

V. Injiituticn^ or collation,

I. There is no diiFerence between inftitution and colla-
tion, as to the a6tion it felf but this ; that the biiliop dot
not prefent to fuch livings as are in his own gift, bu
immediately inftitutcth his clerk, in much the fame fori
as he or his chanceiior Jnflitute a clerk prefented by aji
other patron. And as the bifhop collates to benefices of
his own gift jure pleno, fo he doth to thofe which fall to .
him by lapfe. Johiif. %i,

2. By Can. 40. "21? avoid the deUjlahle fin of fimony^
every archhijhop^ hi/hop^ or other perfon having authority t&
admits injTuute^ or collate^ to any fpiritual or ecclefiajlical

funSlion^ dignity^ or benefice^ jhall before every fuch admijfion^ ^
injUtutiony or collation^ minijler to every perfon to be admitted^g
injiitutedy or collated^ the oath againjl fimony (which is in
ferted under the title ^mOUp*) ,

3. By the i El. c. i. & i W. c. 8. f. 5. Every per
fon ivho fl)all he promoted or collated to any fpiritual or ecclefi-

aftical benefice^ promotion^ dignity^ ^ffic^y or mintjiry ; befon
he Jhall take upon him to receive^ ufe^ exercife^ fi^PPb^ ^'^ °^'
cupy the farne^ Jlmll take the oaths of allegiance and fupretnacy^
before fuch perfon as Jhall have authority to admit him j (whic
arc inferted under the title £Dc(tljS,)

4. Alfo the perfon to be inftituted fhall take the oat
of canonical obedience in like manner. Clarke^ Tit. 91

Which oath is as followeth ; " I A. B. do fwear,
** that I will perform true and canonical odedience to th(
" bifhop of C. and his fuccefTors, in all things lawfu!
'* and honeft : So help me god." Gibf 810.

5. And if it is a vicarage, he jfhall in like manner take
the Oath of perfonal refidence in the fame. Clarke^ Tit.
91.

Which is this ; " I A. B. do fwear, that I will be

'' refident in my vicarage of in the diocefe of- •

*' unlef-^ I fhall be othtrwife difpenfed withal by my dio-
" cit^Mi : So help me god." Gibf 810.

And by a conftitution of Otho -, without the oath of
rrfidcncc, the vicar's inftitution {hall be void. Athon*

6. By the 13 El. c. 12. requiring "aflent and fubfcrip-'
tipn to ccrtuin articles therein fpecified, and contained in

the

the book of articles agreed upon in convocation in the
year I562, it is enadled, thzt no per/on /hail be admitted to
any benefice with cure^ except he Jhall firji have fubfcribed the
faid articles in prefence of the ordinary.

To any benefice with curej So that fine-cures, archdea-
conries, prebends, and the like, lay no obligation on any
perfon to fubfcribe, by this ftatute. Gibf. 808.

Except he Jhall firJi have fiubfcribed] And the ordinary is
not bound to offer the articles to the clerk to be by him
fubfcribed, and to require him to do it ; but the clerk is
himfelf to offer to fubfcribe them : and in this cafe upon
the clerk's ntg\t&. to fubfcribe the articles, the church
remains void, as never full of fuch clerk, and no fentence
of deprivation is neceifary, by reafon that he never was
incumbent, but the admiffion -and inlHtution are void.
Watf c. 15.

In prefence of the ordinary] Before this ftatute, inftitution
•was frequently given (as indu6lions and inllalments may
be ftill) by proxy ; as appears by innumerable inftances
in the ecclefiaflical records. Gibf. 808.

7. By Can. 36. No perfon Jhall^ either by inflitution or Subfcrlption to
collation be admitted to any eccleftaftical living -, except he fi^ain^^'^'^^^'^'^^''^

\. n r t r -I 7 r 1 • i rii ' concerning the

prji Jubjcribe to tbeje three articles jollowing. fupremacy, the

(i) *' That the king's majefty, under god, is the only common prayer,
«« fupreme governor of this realm, and of all other his ^"neanides?
*^ highnefs's dominions and countries, as well in all fpi-
•* ritual or ecclefiaflical things or caufes, as temporal ;
" and that no foreign prince, perfon, prelate, ftate, or
** potentate, hath or ought to have any jurifdi£lion,
•* power, fuperiority, preheminence or authority, eccle-
*' fiaftical or fpiritual, within his majeily's faid realms,
** dominions, and countries."

(2) " That the bc^gk of common prayer, and of or-
*' deringof bifhops, priefts and deacons, containeth in it
*' nothing contrary to the v/ord of god, and that it may
*' lawfully be ufed, and that he himfelf will ufe the form
" in the" faid book prefcribed in publick prayer, and ad-
*' miniftration of the facraments, and none other."

(3) " That he alloweth the book of articles of religion,
*' agreed upon by the archbiftiops and bifhops of both
*' provinces, and the whole clergy in the convocation
*' holden at London, in the year of our lord god one
*' thoufand five hundred fixty and two; and that he ac-
" knowledgeth all and every the articles therein con-

L 2 " tained.

the declaration
©f conformity.

14S 2Betieficei

•< tained, being m number nine and thirty, befidcs the
«' ratification, to be agreeable to the word of god.'*

To tbefe three articles whofoe'Ver will fubfcribe^ be Jhall JUr
the avoiding of all ambiguities^ fubfcribe in this order and
form of words ^ fetting down both his chrijiian and fur name ^
viz, " I N. N. do willingly and ex animo fubfcribe tp
*' thefe three articles abovementioned, and to all things
^' that are contained in them." Jnd if any bijhop Jhall
iidmit any as is aforefaid^ except he firjl have fuhfcfihed in
manner and form aforcfaid^ he jhall be fufpended fro7)i giving
tf orders and licences to preach for the fpdce of twelve months.

Which penalty feemeth not adequate to the offence ;
■for this is punifhing of others, rather than the bifhop, for
the bifhop's default.
Subfcription of 8. By the 13 & 14 C. 1. c. 4. Every dean^ caHon^ aiid
prebendary of every cathedral or collegiate church ; and every
parfon^ vicar y curat e^ knurcr^ and every other perfon in hoiy
orders ; who Jhall be incumbent or have pojjejfton of ary deanry^
canonry^ prebend^ parfonage^ vicar age ^ or any other ecclefi^
aftical dignity or promotion^ or of any curate's place or leSfure ;
Jhall at or before his adm'ijfion to be incumbent or have pojfejjion
aforefaidf fubfcribe the declaration or acknowledgment following^
viz. '' I A> B. do declare, that I will conform to the
*' liturgy of the church of England, as it is now by law
*' eftablifhed." 13 ^ 14 C. 2. c, 4. / 8, 12. i IF.
fejf.i, ..8./ II.

Which Jaid declaration and acknowledgment Jhall he fuh-
fcrihed before the archbijhop^ bijhop^ or ordinary of the diocefe
[or before their vicar general, chancellor, or commifTary
refpedively, 15 C. 2. c. 6. f. 5.] ; on pain that every per '
f on failing in fuch fubfcription^ Jhall lofe and forfeit fuch refpec-^
iive promotio7i^ and Jhall be utterly dijabled and ipfo ta6i:o
deprived thereof -^ and the fame Jhall be void^ as if fuch perfun
fo failing were naturally dead, 13 & 14 C. 2. c. 4. f. 10,

And after fucb fubfcription made^ every fuch parfon^ vicar ^

curate^ and lecturer Jhall procure a certificate under the hand

and fcal of the refpeSiive archbijhop^ bijhop or ordinary of the

.diocefe {or fuch their ^icar general ^ chancellor ^ or commifjaty

OS aforefaid)^ who Jh/ill on demand make and deliver the fame ;

to he read by him publickly in the church afterwards, 13 & 14

C 2. c. 4. f. II.

r> .— •«» »>,^ Q' If the bifhop admit a clerk as fufficicnt, he citli(*r
Ccnrermng the ^ ^. 1 • • r jr • 1 • i_- r 1

perioninnitut- inltiturcs him in perlon, or clle gives him his hat, and
ing. fends him to his vicar general, chancellor, or commifTary,

to do it for him. Johnf 72.

So archbifhop Sancrpft, when he had refah^ed agalnft
taking the oaths to king William and queen Mary, and
therefore could not in reafon adminifter them to others^
did fend his clerks to be inftituted to his collative bene-
fices, by the vicar general. Jobnf. 72.

And not only by commiffion in particular cafes, but
alfo the general power of granting mftitution may be de-
legated by patent to chancellors or commiflaries ; but
this hath not always been judged convenient. Gibf. 804,

During the time that any diocefe or inferior jurifdi6tioi>
is vlfited^ ajid inhibited by the archbifliop, the right of
inftitution belongeth to turn j and when any fee is vacant^
the right belongeth aifo to him, or tg fuch cvtK^r .as by
compofition, prefcription, or otherwife, is guardian of thej
fpiritualties. Gibf. 804.

If inftitution be taken from an improper hand, it may
be made good by confirmation of the perfoa from whom
h ought to have been taken. Thus we find, that an in-
ftitution which had been given by the bifhop of St. Da-^
vid's, pending his fufpenfion, was confirmed by arch-
bifliop Whitgift y as alfo another inftitution, by arch^
bifliop Abbot, which h^d been given by the bifhop,
pending a metropolitical vifitation. Gibf, 814.

■ IQ. Jt is not of neceffity, that the examijiation,, ad- !„ whatt>l»ce,
Jlliffion,^ or inftitution be made by the ordinary within
the diocefe in which the church is ; for the jurifdi£iion of
^e ordinary^ as to fuch matters, is not local,, but fol-
lows the perfon of the ofdiAary^ wherever he goes^ Wcitf.
.c, 15.

But Dr. Gibfon fays,, this h;ith not always been un-
4erftood to be clear law i as appears by the many com-
miiJions which have been granted from time to time, by
jiTchbiftiops to their comprovincial hifhops^ to- inftitute
out of their diocefe, and in any part of the province^
Which commiftion, 4te fays, ncverthelefs, may be un-
derftood in this fenfe, that though the a6t (hall be good
^ and valid in law when done, yet the doing it without
leave is Irregular. Gibf 804.

11. The form and manner of the inftitutiofl is, that Form and man-
the clerk kteeleth down before the ordinary, whilft he ^j^;^^^^ '"^^^"•
readcth the words of inftitution out of a written ijiftru- ^

ment, drawn beforehand for this purpofe, with the feal
< pifcopal appendant, which the clerk during the cere-
lony is to hold in his hand. Johnf. 74.

12. Inftitution being given to a clerk, a diftln6l and F-nfry tberffof;
^jaajticulai entry thereof is to be made in the publick re.ii;i- "^ theregiftcr,,
'^ L 3 ftvr

X50 Benefice.

(ler of the ordinary : that is, not only that fuch a clerk
received Inflitution on fuch a day, and in fuch a year 5
but, if the clerk was prefented, then at whofe prefenta-
tion, and whether in his own right, or in the right of
another ; and if collated, or prefented by the crown, then
whether in their own right, or by lapfe. This hath been
the pra£lice, as far back as any ecclefiaftical records re- -•
main : and it is of great importance that fuch entries be
duly made and carefully preferved ; both to the clerk,
whofe letters of iiillitution may be deftroyed or loft ; and
to the patron, whofe title may fufFer in time to come, by
the want of proper evidence upon whofe prefentation it
was that rnftitution was given. And it might tend per-
haps to the better obfervation hereof, if every clerk, after
having paiFed tne excmination of the ordinary, and there-
upon obtained his fiat, were fen t' to the proper ofRce of
the regifter for his ktters of inftitution. Gibf. 813.

And lord Coke fays ; prefentatlons, admifTions, and
Inftitutions, are the life of advowfons : and therefore if '
patrons fufpe6l that the regifter of the bifhop will be neg- -
ligent in keeping of them, he may have a certiorari to the
bifhop, to certify them into the chancery. 2 Inji. 356.

W . . ... . ''^

Letters temmo- 13* The clerk being inflituted, the inftitution is good^'

jjjal thereof. without any after a6t ; yet the ordinary is wont to make
letters teftimonial thereof. Watf. c. 15.

Stamp duty, I4« ^7 the feveral ftamp acfts ; for every inftitution

that ftiall pafs the feal of any archbiftiop or biftiop, chan-
cellor, or other ordinary, or any ecclefiaftical court what-
foever, fhall be paid a treble five (hillings ftamp duty.

And for every collation to a living of 10 1. a year or
upwards in the king's books, fhall be paid a double forty
{hillings ftamp duty. And the reafon of this difference is,
becaufe collation ftandeth alfo in the place of a prefenta-
tion, for which (in cafe of a living of 10 1, a year or more
in the king's books) a like double forty {hillings ftamp
duty is required to be paid.

[a] In the book it felf the words are, Prefent admijjions and
injiitutions ^V. and fo it is quoted by every one : but the fenfq
feemeth to require (without overftraining the rules of critiqifrnj
that we fhould fuppofe the word Prefent with a dafh to have been
writ (hort in the original manufcript for Prefent ations^ and fo mif-
taken by the printer. Of which kind of errors there are divers
others in that author's works, efpecially in thofe which were pub-
liihed after his death.

2 If

asenefife. is^i:

If the collation is to a living under lol. a year int-he '
king's books, it feemeth that the fame {hall be on a tieble
five fhillings ftamp.

15. It is not material what feal the ordinary doth make Seal,
ufe of in that cafe. Waif. c. 15,

Thus in the c^fe of Cort and the bifhop of St. David^s^
H. 9 Car» the chancellor of St. David's had made ufe of
the bifhop of London's fcal ; and it was adjudged to be
well enough, becaufe it is the a6l of the court which
makes the inftitution, and the inftrument is only a tefti-
monial of that a6i: ; and the feal ufed (whatever it be)
fhall be taken to be the f^al of the perfon inflituting for
that time. Cro. Car, 341.

16. Laflofall, the ordinary executeth, and delivereth]VTpn(^2te to in-
to the party inftituted, a written mandate to the archdea- <iu^'

con, or other proper perfon to induct him. Johnf. 74.

17. By the 31 El. c. 6. If any perfon jhall for any re- p^,
I ward or other profits or any promife or other ajjurance thereof^

\ dire^ly or indlreiily^ (other than for ufual and lawful fees ^)
admits iri/Ntute, inflal^ indu^^ inveji^ or place any perfon in
Qr to any benefice ivith cure of fouls y dignity ^ prebend^ or other
living ecclefiajiical \ he Jhall forfeit the double value of one year\
profit thereof and the fame fioall be void as iffuch perfon uierg
lUfturally dead. Lb,

By a conftitution of archbjfhop Langton : No prelate
\ Jhall extort any things or fuffcr any thing to be extorted by hi-s
officials or archdeacons^ for injlitutiony or putting into pofjeffion^
ft for any writing concerning the fame to be made.

And by a conftitution of archbifhop Stratford : V/e do
prdainy that for the writing letters of injiitution or collation,
no more Jhall be taken than izd -, but the ordinaries Jha.l alloiu
Jiipends to their officers, wherewith they Jhall be contented.
And for the fealing of fuch letters, or to the marjhals of the
hijhop's houfe, or porters, nothing Jhall be paid. And if any
" perfon Jhall take any thing contrary to the prem'tjfcs, he Jhall »

rejiore double ivithin a month : otherwife, if he is a clerk bene^
ficedy he Jhall be fufpended from his office and benefice j if he is
not beneficed, or a lay perfon^ he Jhcfll be interdiSfed from the
entrance of the church until he Jhall make fatisfa^tion as afore-f
faid.

But generally, the ecclefiaftical fees at this day are re-
gulated by the pra6i:ice and cuftom of every diocefc, acr;
cording to a table confirmed by archbifhop Whitgift, an4
jis is directed by the 135th canon.

18. The clerk by inilitution or collation hath the cure EflTe^^of Wifti-
of fouls committed to him, and is anfwcrable for any ^"""" ^""f^'i*'
ftegled^ ii) this point. Johnf 74. ■ i

tlOIJ.

L 4 And

1 5 2 Benefice*

And as to the temporalties ; whereas prefentation dcrth
give to the clerk a right ad rem^ fo inftitution or collation
do give him a right in re : and therefore in virtue of col-
lation as well as of inftitution, the clerk may enter into
the glebe, and take the tithes ; though for want of ini^
du£lion, he cannot yet grant or fue for them, Gihf^

^^3- . . ... , . '•'

But herein collation and inflitution differ ; that by in-^

ftitution, the church is full, and plenarty by fix months
is pleadable againll: all perfons but the king, and againft
the king alfo when he claimeth in the right of a common
perfon : but by collation the church is not full, nor is
plenarty by collation pleadable, but the right patron may
bring his writ and remove the collatee at any time ; un-
Jefs he be fuch patroji who hath alfo right to collate, for
againft him plenarty by collation is pleadable. And the:
reafon why collation doth not make a plenarty is, be^
caufe then the bifhop would be judge in his own caufe,
to the great prejudice of patrons ; and therefore the bi-
fhop's collation, in this refpedt, is interpreted no more
than a temporary provifion for celebration of divine fer-^
vice, until the patron do prefent. Gibf. 813. ff^aifj
c. 12. ^

Trial of inftitu- ^Q* Inftitutlon is properly cognizable in the ecclefiaf-i
tion. tical court ; but if after indu£tion a man is fued there,

fuppofmg his inflitution was void, that Ihall be tried in.
the temporal court, becaufe by the induction the perftia
hath a freehold in the benefice, which mult be tried at
common law. 2 Roll's Abr, 294.
Super-inftitu^ 20, A church being full by inflitution, if a fecond in-

tioii. flitution is granted to the fame church, this is a fuper-

inflitution. Concerning which, two things have been
refolved: i. That the fuper-inflitution, as fuch, is pro--
perly triable in the fpi ritual court, 2, That it is not
triable there, in cafe induction hath been given upon tho
firfl inflitution. Gibf. 813.

The advantage of a fuper-inflitution is, that it enabW
the party who obtains it, to try his title by ejedlmentj
without putting him about to his quare impedit ; but
many inconveniences following from thence (as, the unx
certainty to whom tithes fhall be paid, and the like), this^
method hath been juflly difcouraged. Gibf. Bi^. f

Firftfruit»to be 2 J, Bj the 26 H. 8. c 3. f, 2. Every pe J' fin before any
compounded for actual or real pojj'ejfion or meddling with the profits of his' be-
»iwr mftiiuiion. ^^^^^^ fimll pay or compound for the firji fruits to the king's-
ufe, at rcafinabk daysy and ufon good fur etics.

JBetitfice. 153

VI . Indu^ion.

r. After inftitutipn given, the ordinary iifues a j^ian- Mandate of m^^
4ate for induction, directed to the perfon who hath pow«r <^^^^*»"'
to indud. And thi$ peribn, of common right, i$ th«
i archdeacon. But by pr^fcription or compofition, Qthers
as well as archdeacons may make inductions ; fpr by
prefcription the dean and chapter of I^itchfieJd dp mak« ,

indudioa, and fo do the dean and chapter of St Paul's.
J^atfk e. IS'

S© if a church is exempt from archidiaconal jurifdio-
tUn (as many churches are), then the piandate is tp be
cilreded to the chancellor or commifTary ; a«d if it be a
peculiar, then to the dean or judge within fuch peculiar.
And when an archbifhop collates by lapfe, or when a
ice is vacant, the mandate goes, not to the o^cer pf the
archbifhop, but of the bifhop. Gikf.Si^.

If a bifhop dies, or is removed, after inftitutipn given,
and whilft a mandate of inducSlion is either not iiTued,
©r not executed ; the clerk may repair tp the archbifhpp
for a mandate of induction. This is, becaufe the authg*
rity of the bifhop is determined, and that authority de*
volved to the archbifhop, as guardian of the fpiritualties
fede vacante. And the fame rule takes place, if the bir
fliop is vifited, and his jurifdiction fufpended, after inliir
tution and before indu6lian. And tho' fuch ipand^te h
not executed before a new bifhop is confirmed (who the»
hath authority to grant it), but is executed after ; it fhall
not be void (becaufe it is the aft of one who hath autho-
rity throughout his province), but only voidable at moft ;
as was determined in the exchequer chamber, M. 29 C. o,,
in the cafe of Robin/on and IVolIy ; a contrary judgment,
which had been given in the court of king's bench (vii^^
that it was void) being^at the fame tinie reverfed, Gii^Jl

815.

It feemeth not clear from the words of the feveral ftamp
a€tb, whether the ordinary's mandate for induction fhall b«
on a treble 5 fh, or on a 2s 6d flamp ; the words are, Every
iicence that fhall pafs the feal of any bifhop, chancellor,

or other ordinary fhall be on a treble 5 fh ftamp :

Every obligatory injirument^ procuration^ or other notarial a&
— - — on a 2s 6d flarap.

The archdeacon, or other perfon to whom the manr
^ate is dirededj either niaketh the iududlion in perfon,

4u^on.

154- JSeticfice.

or . direiteth his precept unto others to do it. Gilf.

Manner of in- 2. And the indu(B:ioh is to be made according to the
tenor and language of the mandate ; by veiling the in-
cumbent with full pofleilicn of all the profits belonging.
to the church. Accordingly, the inductor ufually takes^
the clerk by the hand, and lays it upon the key, or upon
the ring of the church door, or if the key cannot be;-
had and there is no ring on the door, or if the church
be ruinated, then on any part of the wall of tho church^
or church-yard, and faith to this efFe61: : " By virtue of
'' this mandate, I do indu6i: you into the real, adiualj
** and corporal poflcilion of this church of C. vnth. al>
** the rights, profits, and appurtenances thereto belong-^
** ing." After which, the indu£tor opens the door, and
puts the perfon inducted into the church ; who ufually
tolls a bell, to make his induf^ion publick and known
to the parifhioners. Which being done, the clergyman
who inducted indorfeth a certificate of his induction on
the archdeacon's mandate, and they who were prefent
do teftify the fame under their hands. Johnf. 'j'j, IVatf.
c. 15.

If the induiElor, or perfon to be inducted, be kept out
of the church or parfonage houfe by laymen, the writ
de vi latca removenda lies for the clerk, which is directed
out of chancery, to the fhcrifF of the county, to remove
the force, and (if need he) to arreft and imprifon the
perfons who make refiftance. Johnf. 75.

If any other clergyman, prefented by the fame patron
with the perfon to be inducted, doih keep poflbiTioji -, then
^.fpoliaiion is grantable out of the fpiritual court : whcre-i
by the profits fhall be fequeftred, till the right be deter-
mined. Johnf. 75.

But donatives are given and fully polTcfTed, by the
fingle donation of the patron in writing ; without pre^
fentation, inftitution, or indudlion. Gibf. 819.

So if the king doth grant one of his free chapels, the
grantee (hall be put in pofleflioji by the fherifF of the
county, and not by the ordinary of the place. IVatf...
c. 15.

And in fomc places, a prebendary fliall have pofl'eilioa
v/ithout induction ; as at Wcftminiler, where the king
makes collation by his letters patents, and thereupoii
the party enters upon the prebend without other induc-
tion, awd it is good. ^Xi\ in fonie places the bifbop

Benefice. iss

akcs the iniiu£lion, in fome places others make it; and
le ufage generally (ball hold place. Waif, c. 15.

But the pofleflion of fine-cures, muft be obtained by
le fame methods, by which the pofTeflion of other rec-
)ries and vicarages is obtained ^ namely, by prefenta-
on, inftitution, and indudlion. Gibf, 8i8.

3. By a conftitution of archbifhop Stratford, it is Gr-
ained, that y^r the writing letters of in/litution or collatioHy
nd commijfwns to induSfy or certificates of induSlion^ no mort
'.all be taken than I2d,

Which fum was confiderable in thofe days, being nearly
qual to 20 s now.

But (as was faid before of inftitution) thefe fees are
enerally regulated, according to the cuftom of the re-
pedive places.

But as to the expences of the indu£lion it felf, it is
ire6led more at large by a conftitution of the fame arch-
)ilhop as followeth : We do decree, that they who are bound
y the mandate of their fuperior to indu£i clerks admitted to ec-
tefiaflical benefices ft) all be content with moderate expences for
uch indu^ion to be made\ that is to fay, if the archdeacon in-
hiSf, he ft)ail be fatisfied with d^o d\ if his official, he fhall be
ontented with 2s ; for all and every the expences of themfelves
md their fervants for their diet: referring never thelefs io the
Hrfon induced his option, whether h§ will pay this procura-
ion to the induSior and his attendants in fuch fum of money'y
r in other necefiaries. And if more than this ft^all be taken
')y the indiiciors by reafon of the premijfes, or if they ftjall
*ake any more for making the induSiion by themfelves in their
7Wn per fans, or if they ftjall delay by artificial pretences to make
and deliver to the clerks induSied letters certificatory of their
i.ndu£iion \ they who ft)all be unduly culpable in this behalf ^
(hall be fufpended from their office and entrance into the churchy
Until they fhall make reftiiution, Lindw. 140.

** . .

T^hat they who are bound] By this it appears, that it is not

in the archdeacon's power to indudt or not induct, after he
hath received the mandate from his fuperior 5 becaufe he
is bound to obey his mandates, and fo this iir>porteth a
i necefTity. Lindw. 140.

By the mandate] For neither the archdeacon nor any
j pther ought to indu£l any pcrfon into a church, without
I a mandate from the perfon inftituting. Lind. 140.

Of their fuperior] As, of the archbifliop, or any other,
to whom by right or cuftom inftitution bdongeth. Li^d,

1^0.

■ For

156 T&tntitt.

For fuch hctufftion U he made] That is, for the expend |f^
concerning the induction. Lind, 140.

If the archdeacon induSf] For it is his ofHce (faith Lind
wood) to indu£l perfons admitted to ecclefiaftical be
nefices into corporal pofTelTion of the faid benefice

Lind. 140. •

He fiall h fathfied with ^od] Which fum in tho{
^ays was fufficient (Lindwood fays) for four perfons an
as many horfes, together with one fumpter horfe. Lind

140-

If his official] So that it is not required in the induction
that the archdeacon perform tliis a£t in his own perfon
but he may execute it by another. Lind, 140.

He Jhallhe contented with ^s] Namely, for two or threi
horfes at the moft. Lind, 140.

For their diet] To wit, victuals for themfelves, anc
provender for their horfes, for one day and night. Lind.
140.

Referving iieverthekfs to the perfon induced his option]
Which at this day (Dr. Gibfon faith) the perfon indudlec)
Jiath loil by cuftoin. Gibf 814.

Whether he will paf this procuration in fuch fum of??ioney[
Namely, of 4od, when he is indu6led by the archdeacon
or 2s when he is indu6led by his official. But what i
he be indu6led (faith Lindwood) by any other than by
the archdeacon or his official, but by the archdeacon's
mandate ; whether then may the archdeacon take any
thing for fuch indu6tion? I think not (he fays) j but fuch
induilor fliall have from the inducted his neceflary
expence.s fuitable to his degree, under the like mode-
ration as is appointed for the archdeacon or his official,
Lif^d. 140.

J^ more than this Jhall be taken by the induSfors by rcafon
of the premiffes] But whether may the archdeacons, be>
fides the expences for their diet (as the conftitution cx-
prefTcth it) take any thing of the perfon indudled in the
name of f"^cs to be paid to himfelf and his officers (as
perhaps where it hath been the cuftom to pay fomething
certain upon fuch account) without incurring the penalty
of this conftitution? It feemeth (faith Lindwood) that
they may, to wit, for their pcrfonal labour, and other ne-
cefTary «xpenccs, cxclufive of their diet as aforcfaid \ that,

^Benefice, 157

} to fiy, Without incurfing the penalty hereby Ihfli<aed :
or the conftitution doth not prohibit them exprefly, and

if,')6nal laws are to be taken ftridly. But they maybe

,{ itherwife punifhed as fimonifts. Lmd, 141.

Letters certi/icafory] Whereby according to their man-
late the inductors do certify whether they have actually in-
( , .u£^ed. the clerk inftituted or not : and thefe letters certi.- ^

ica'tory in common fpeech are called letters of induction.
/Jnd. 140.

Theywh^ Jhall be unduly culpable'] That is, without rea-
bnable caufe, or juft impediment. L'md, 141.

4. After inftitution, the clerk is not compleat incum- EfFeaofind^c-*
)ent till after induction ; or, as the canon law calls it, cor- ^*^"*

)oral pofleffion. For by this it is, that he becomes feifed
i>f the temporalties of the church, fo as to have power to
;rant them, or fue for them ; by this, he is unexeeption-
.bly intitled to plead (as occafion (hall require) that he is
mrfon imparfonee ; and by this alfo the church is full, not
inly againft a common perfon (for (o it is by inftitution)
mt alfo againft the king; and by confequence, it is com-
>leatly full, and the clerk is complfiat incumbent or pof-
efFor. On which account it is compared, in the books of
ommon law, to livery and feifin ; by which poflefTion is
jiven to temporal eftates* And what indu(5lion worketh
n parochial cures, is efFefted by inftalment into dignities,
)rebends, and the like, in catheral and collegiate churches.
^ribf. 814.

And by the 28 H. 8. c. 11. Hejhallhave upon one month's
uarning after his indu^ion^ the man fion houfe and glebe {not
'own at the time of his predeceffor* s death) for maintenance of
ns hoiijhold'y deducing therefore in his rent, as heretofore hath
Hen born for the fa?ne^ or as it is reafonahly worth, f. 9.

And this limitation of time might be well enough in
I thofe days, when the clergy were not allowed to marry ;
but now, for the widows and children which they fre-
i quently leave behind them, this time feemeth tjo be too
f (hcrt, efpecially when the induftion is made foon after the
I avoidance, and at a feafon of the year when perhaps houfes
i are not immediately to be procured into which they may
' remove.

5. Induction Is an a<St of a temporal nature. So the Induaion of-
kooks of common law every where declare (notwithftand- ^e^rnpj>'«l cogm-
ing it is an a6l of fpiritual perfons about a fpiritual mat-
ter) ; bccaufe it inftates the incumbent in full pofTeiTiori

; tif the temporalties, as thefe ar<? oppofcd to the fpiritual
-^ office

158 Benefice.

office or fun£lIon. Upon which account, it is coghlfabic
only in the temporal courts. Gibf. 815.

And upon the like ground it is held, that the archdea^
con, if he refufe or delay to induct, is not only punifh^
able by fpiritual cenfures, but is alfo liable to an ad;ion on
the cafe in the temporal court. Id,

In the archbifhop's regiftry, mention is made of appeah
to the archbiftiop, where the perfon who had been infti-
tuted was denied indudlion, or the mandate of induction ;
and liberty given, in other inftances, to perfons who pre-
tended an intereft, to fhew caufe why induction oughl
not to be granted, after inftitution given. Id.

VII. Requijiles after induElion.

Toreaathecom- I. By the 13 & 14 C. 2. c. 4. Every perfon who JhaU\
mon prayer, and he prefented or collated or put into any eccleftaftical benefice or\
thcreunto.^"'^ P^omotion^ jhall in the churchy chapel^ or place of publick wor^
Jhip belonging to his faid benefice or promotion^ within two j
months next after that he fijall be in the aSiual poffejfton of the \
faid ecclefiaftical benefice or promotion^ upon fome lord's day^
openly publickly andfolemnly read the morning and evening pray-
er s.^ appointed to be read by and according to the book of com^
mon prayer^ at the times thereby appointed or to be appoint ed-y
and after fuch reading thereof fimll openly and publickly^ before \
the congregation there affembled^ declare his unfeigned affent and
confent to the ufe of all things therein contained and prefcribed,
in thefe words^ and no other: " I A. B. do here declare
*' my unfeigned aflent and confent to ail and every thing
*' contained and prefcribcd in and by the book, intituled,
*' The book of common prayer and adminiftration of the
." facraments, and other rights and ceremonies of the
*' church, according to the ufe of the church of Eng-
*' land ; together with the pfalter or pfalms of David,
'' pointed as they are to be fung or faid in churches ; and
*' the form or manner of making, ordaining, and confe*
*' crating of bifhops, priefts, and deacons.''

And every fuch perfon who fi)all (without fome latuful impe^
d'lment to be allowed and approved by the ordinary of the place)
neglect or refufe to do the fame within the time aforefaid (or in
the cafe of fuch impcd:mcntj within one month after fuch impe*
dimcnt removed)^ fl)all ipfo faSlo be deprived of all bis faid eC"
cleftnflical benefices and prom.QUons ; and from thenceforth ft
/'jail be lawful for all patrons and donors of all and fmgular thi
faid ecclcfiajlical benefices and promotions^ according to their rt'
fpenive rights and titles y to prefent or collate to the fame ^ ai
thi>^ the perfon or perfons fo offending or negle^ing were dead. f. 6.

2. By

Benefice, 159

2. By the 13 Eliz. c, 12. Every per [on a Jmiticd to my To rei^i the thif
^nefice with cure^ jhall publickly read the thirty nine articles in 7 "'"<= "^'^les,
■he parijh church of that benefice <^ with declaration of his un- ^f ^^^^^^
^eigned afj'ent to the fame : and every perfon admitted to a be^
lefice with cure^ except that within two months after his induC"
, ion he do publickly read the faid articles^ in the fame church
^\ whereof he Jhall have cure^ in the time of common prayer there^
i»| vith declaration of his urfeigmd affent thereunto ; Jhall bt upon

\\very fuch default ipib fe'^o immediately deprived. PrO"

ndcdy that nc title to confer or prefent by lapfe^ Jhall accrue
Upon any deprivation iplo fa6i:o, but after fix months after no^
ice of fuch deprivation given by the ordinary to the patron^
\ 3, 8.

Admitted to any benefice with cure] This Is meant of fuch
jenefices as have parochial churches belonging to them^
md ey.tends not to dignities or prebends in cathedral and
:olIegiate churches. And therefore where the cafe was
, ibout reading the articles, and it was not alledged in the
leclaration that the benefice was a benefice with cure, it
^as held to be ill. i Jnd. 62.

Except that within two months after his indu^icn] Com-
puting twenty eight days to th^e month : For in the cafe
A' B/'jwn and Spence, v/here the indu«Stion was Sep. 15.
md the articles were read Nov. 15. this was adjudged
.nfufficient. i Lev. loi.

But by the ftatute of the 23 G. 2. c 28. Whereas it
hath happened, and may happen, thro? ficknefs or other
lawful impediment, that divers perfons have been and may
be hindred from reading the faid articles and making the
faid declaration, within the two months ; and yet fuclj
perfon, after fuch ficknefs, or other lawful impediment re-
moved, hath read or may read the faid articles, and hath
i made or fhall make the iaid declaration ; and it is reafon-
•i able that fuch perfons fhould be deemed to have complied
{ with the true intent and meaning of the faid a6t : it is
'>. therefore enabled, that every perfon who hath read or (hall
' read the faid articles, and hath made or (hall make the faid
. declaration, at the fame time that he did read or fhall read
• ' the morning and evening prayer and declare his unfeigned
affent and confent thereunto according to the ftatute of the
I 13 & 14 G. 2. c. 4. ihall be and is hereby declared and ad-
■ : judged to have complied with the true intent and meaning
> of the faid act of the 13 Eliz. altho' the fame were not or
may not be read v/ithin the fpace of two months after fuch
perfon*s indu£lion into any benefice with cure; and every
I fuch perfon fnall be freed and difcharged from any depri-
' "ration or other forfeiture by virtue of the i^iid.a^t.

i6o Benefice.

In theptmi thurch whereof be fmllhat/e ckre] In the ftfore-
faid cafe ofBroiun and Spence, Where the keys of the chareh
could hdt be had, and ib divine fervice was performed in
the church porch, and the articles read there ; this was
held to be a fuificient reading, as Keble reports it : But
by Levinz, what the court there held to be good was, th*
reading of them in the porch of a chapel of eaf6 withia
the parifh. j Lev, loi.

In the time of common prdyer then'\ And therefore not \U
be put off, till divine fervice or common prayer is ended,
Gihf 117.

With declaration of his unfeigned ajfent thereunto"] In xhi
cafe of Smyth and Clerky the jury found, that the incum-
bent (who was fued in the fpiritual court in order to de"»<*
privation for not giving alTent to the articles) did read th«i
aitickSj and then faid, " I give my confent unto them^'
** fo far forth as they agree with the word of god:" and'
it was adjudged, that this was not fuch an unfeigned af-«
fent as the flatute intendeth ; but that the aflent ought t«
be abfolute and without condition. For (as lord Coke
faith) the a£t was made for the avoiding diverfity of opi-"
nions j and by this addition the party might, by his own
jirivate opinion, take fomc of them to be againft the word
of god : and by this means diverfity of opinions fhould not
be avoided, and the adt hereby made of none efFed.
Gihf 817. 4 InJI, 324.

Shall he upon every fuch default'] But in a fuit for tithes,
or the like, though the parifhioner may plead, that the
parfon did not read the thirty nine articles, yet the law
prefumes the affirfiiative, and (in that cafe) the negative
mull be proved. Gihf 817.

Ipfo faclo immediately deprived] So as the church is pre-
fently void, without any declaratory fentence ; for avoid-
ance by a6l of parliament nccdeth not any fentence decla-
ratory, and if it did, the ftatute fhould be defrauded at
the ordinary's pleafure if he would not deprive. And this
is the received interpretation of the ftatute : although the
contrary fcems to be fuppofcd in the cafe of Bacon and the
bifliop of Carlifle (which was but fix years after making of
the-act) as it is reported by Dyer ; inafmuch as the notice
given by the bifhop is there declared infufficient, for this,
among other reafons, that he did not notify that he had
deprived the clerk by fuch fentence. Gihf 817. 4 Inji^

324-

But

J5ettefice* i6i

But after fix months after notice of fuch deprivation given
fy the ordinary to the patron] In the aforefaid cafe of Bacon
md the bifhop of Carlifie, a queftion arofe concerning the
nanner of giving notice. The bifhop of Carlifle had fig-
jified in an inftrument under feal, that Bacon had not
ubfcribed to the articles, according to the ftatute ; which
nftrument the jury found, was publickly read in the
hurch by the curate of the place, and afterwards affixed
ly the apparitor to the parfonage houfe. But this notice
^ras declared infuiHcient, not only becaufe no mention
vas made therein either of the patron, or of the depriva-
ion by declaratory fentence; but chiefly becaufe the notice
>ught to have been given to the patron immediately.
Vnd accordingly, lord Coke lays down two qualifications
>f the notice mentioned in this adt : i . It ought to be
;iven by a perfon certain, that is, the ordinary ; for if
jiy other, of his own head, giveth notice to the patron,
t is not material. 2. The notice ought to be certain
nd particular ; and therefore it is not fufficient for the
trdinary in fuch cafe, to give notice that the prefentee
lad not read the articles and fubfcribed, generally; but
le ought particularly to inform the patron that he had
lot fo done, for which default he is deprived, and that
hereupon it belongeth to the patron to prefent. Gibf
;i8. 6 Co, 29.

3. By the 13 & 14 C. 2. C. 4. He Jhall publickly ^j;?^ Declaration of

penly read the ordinary's certificate of his having fubfcribed the thfeflTblffh4

ieclaration of conformity to the liturgy of the church of England church.

IS it is now by law e/lablijhed, together with the fame declara^ .

ion or acknowledgment <y upon fome lord^s day within three

nonths next after fuch fubfcription^ in his parijh church where

)e is to officiate, in the prefence of the congregation there affem^

tied, in the time of divine fervice ; upon pain that every perfon

\ ^ailing therein (^without fome lawful impediment to be. allowed
and approved by the ordinary of the place, 23 G. 2. c. 28.)
(hall lofe fuch parfonage, vicarage, or benefice, curate's place,
or Usurer's place refpe£lively ; and Jhall be utterly di fabled^
and ipfo fadto deprived of the fame \ and the faid parfonage,
vicarage, or benefice, curate s place, or le6lurers place Jlmll

L he void, as if he was naturally dead. f. 1 1 .

'' A doubt hath been raifed, whether the defign of the
adt was, that the clerk (hould only read the bifhop's cer-
tificate to the congregation, in teftimony of his having
fubfcribed the declaration before him ; or whether, after
having read the certificate, he (hould not alfo make the
fame declaration again in form, before the congregation ;
Vol. I. M which

1 62 J5ettefice» i

which point hath never been judicially determined: hutA\
the latter opinion is not only more fafe, but hath alfo^
been thought more agreeable to the tenor of the a6t, than
the bare reading of the certificate, Gibf, 817.
To keep a me- 4» ^f ^ parfon or vicar claimeth tithes in right of the
morandum of church or benefice whereof he is incumbent j he is m
the fame. itri6lnefs bound to prove his inftitution, induction, and

all things elfe required by law to qualify him to be in
cumbent of that church to which the tithes belong. Bu|
if he hath been for feveral years in pofleffion, he is not
ordinarily put to prove thefe matters, unlefs the defendant
in his defence fheweth fome reafons why thefe things
ought to be proved and made out. But the law doth not
determine, how many years the plaintiiF ought to be ilt
the pofTefiion of his benefice, to excufe him from being
put to the proof of thefe things ; but that feems to be left
to the difcretion of the judge who tries the caufe : though
it feemeth that a fmall number of years, as three or fout
quiet pofleffion may be fufficient. Bohun of Tithes, 433

And in the cafe of Woodcock and Smiths, T. 1718 ; it
was declared by the whole court of exchequer, that altho'
at law they hold a parfon or vicar to the proof of his ad*
miffion, inftitution, and induction, and reading the arti?
cles ; vet they never do it in equity. Bunb, 25.

However, as he may be called upon to make fuch proo^
it may be convenient that he have fome intelligent perfons,
whom he may truft, prefent when he is inducted ; and
(if it may be) the fame perfons prefent at fuch time whea
he fhall perform the other matters required by the law to
be performed in his parifh church ; and to the end that
they may be able to teftify, that all things are done as
they ought to be, the clergyman may defire them to read
with him, or to obferve as he reads the morning and even-
ing prayer, and alfo the thirty nine articles ; and he ought
alfo to give them a copy of his certificate under the hand
and feal of the bifhop, and of the declarations which he
is to read ; for otherwife, if their teftimony be wanted, it
will be hard for them to depofe, that he read a true copy
thereof, and that all things were done according to law.
And it is alfo advifable, that he make a writing to bp
fubfcribed by his witnefles, after this or the like form :

IVe whofe names are underwritten^ do hereby certify and
declare^ that A. B. re£lor of Q, within the diocefe of D. in
the county of E. was in the prcfence of us indu6ledinto his churib

of C. aforefaid^ by F-. G. rertor of H. on the day hf

* in this pr^Jent year y by virtue of certain letters of iff

duBkn

Benefice* 163

'u^ion 7nade under the hand and fed of \, K. archdeacon of'L,
nthln the diocefe aforefaid for that purpofe dire5led To all
nd every, &c. And alfo that the aforefaid A. B. on the

day of in the year aforefaid^ being the lord^s

ay^ did read in his parijh church aforefaid^ openly puhlickly
nd folemnly^ the morning and evening prayers appointed to he
ead by and according to the book intitled^ " The book of

• common prayer, and adminiftration of the facraments,

• and other rites and ceremonies of the church, accord-

• ing to the ufage of the church of England, together

• with the pfalter>orpfalms of David, pointed as they are
' to be fung or faid in churches, and the form or man-
' ner of making, ordaining, and confecrating of bifhops,
' priefts, and deacons," at the time thereby appointed \ and
'fter fuch reading thereof did openly and publickly before the
ongregation there affembled^ declare his unfeigned affejit and
onfent to the ufe of all thitigs therein contained and prcfcribed^
n thefe words following^ " I A. B. do here declare my
' unfeigned aiTent and confent to all and ' every thing
' contained and prefcribed in and by the book intitled,
' The book of common prayer and adminiftration of the
' facraments, and other rites and ceremonies of the
' church, according to the ufe of the church of England j
« together with the pfalter or pfalms of David, pointed as
' they are to be fung or faid in churches ; and the form
' or manner of making, ordaining, and confecradng of
' bifliops, priefts, and deacons ;" Alfo that he did pub-
'ickly and openly on the day and in the year aforefaid [if it is
ione on the fame day ; but if it is done on any other day,
:hen the fame muft be fet forth accordingly, or it may be
:ertified feparately in a feparate certilicate] in the parijh
zhurch aforejaid^ in the prefence of the congregation there ajfem-
hledy in the time of divine fervice^ read a certificate ujider the
hand andfeal of the right r^er end father in god R. lord biftiop
9f C. [or as the cafe fhall be] in thefe vjords foUoiving
[inferting the very words of the certificate j] and immedi-
ately after the reading thereof at the fajne twie^ and in the
fame place^ the congregation aforefaid being then and there
prefenty did read the declaration or acknowledgment contained
in the faid certificate, to wit, *' I A. B. do declare^ that I
** will conform to the liturgy of the church of England,

as it is now by law eftablifhed." And lafily, that he

on the day and in the year aforefaid, read the articles of

ion, commonly called the thirty nine articles, agreed upon

convocation in the year of our lord one thoufand five hundred

and two, in the paripj church aforefaid, in the time of

M 2 co?nmon

164

Benefice.

common prayer there^ and did declare his unfeigned ajfent
thereunto. And ihefe things we prornife to tejiify upon our
oaths ^ if at any time we Jhall be lawfully thereunto required.
In witnefs whereof^ we have hereunto fet our handsy this "

day of — /« the year of our lord '—

To take alfo the 5- Finally, he fhall within fix months after his ad-
oaths at the mifiion, take the oaths of allegiance, fupremacy, and
feilions. abjuration, in one of the courts at Weftminfter, or at;

the general quarter feifions of the peace ; on pain of be-
ing incapacitated to hold the benefice, and of being dif-
ablcd to fue in any adlion, or to be guardian, or execu-
tor, or adminiftrator, or capable of any legacy or deed ofi
gift, or to bear any office, or to vote at any ele6lion fori
members of parliament, and of forfeiting 500 1. i G,
y?. 2. c. 13. 9 G, 2. c, 26.

Benefit of clergy
by the tommon
law.

Confirmation
thereof by the
Aatuce law.

Beneftt of tlergp.

I. T^ H E privilege of clergy took its root from a con-
JL ftitution of the pope, that no man fhould accufc
the priefts of holy church before a fecular judge \ vi^hich,
being contrary to the crown and dignity of the king and
the common law, bound not here, till it was confirmed
by parliament. 2 /«/?, 636.

2. Concerning which, it is enabled as follows : TFhen
a clerk is taken for guilty of felojiy^ and is demanded by the
ordinary y he Jhall be delivered to him according to the privilege
of holy church. And they which be indited of fuch offences by
folemn inquefl of lawful men in the king's courts in no manner
jhall be delivered without due purgation^ 3 Ed. i. c. 2.

When a clerk'\ For the fcarcity of clergy in the realm
of England, to be difpofcd of in religious houfes, or for
priefts, deacons, and clerks of parifhes, there was a pre-
rogative allowed to the clergy, that if any man that could
read as a clerk were to be condemned to death, the biftiop
of the diocefc might, if he would, claim him as a clerk;
and he was to fee him tried in the face of the court, whe-
ther he could read or not : the book was prepared and
brought by the bifhop, and the judge was to turn to feme
place as he {hould chufe, and if the prifoner could read,
then the bifliop was to have him delivered over unto him,
to difpofg of in fomc places of the clergy, as he fliould

thiiik

MntUt of cUtQv* 1^5

iiink meet : but if either the bifhop would not demand
im, or the prifoner could not read, then was he to be
ut to death. Bacon s ufe of the law, 122.

J clerk] And by a favourable interpretation of the fla-
ites relating to the clergy, not only thofe actually ad-
litted into fome inferior order of the clergy, but alfo
lofe who were never qualified to be admitted into orders,
ave been taken to have a right to this privilege as much
s perfons in holy orders, whether they were perfons law-
ally born or baftards, aliens or denizens, in the commu-
ion of the church or excommunicate, within the com-
aon benefit of the law or outlaws ; fo that they were not
lereticks conviiSt, nor jews, mahometans nor pagans,
lOr under perpetual difability of going into orders admit-
ing of no difpenfation, as blind and maimed perfons for-
nerly were, and women ftill are ; nor liable to the ob-
sdlion of bigamy (which by a conftitution of the council
'f Lyons received in this kingdom) was a bar to the
emand of the privilege of the clergy. 2 Hawkiri's pleas
fthe crown, 338.

And by the 3 ^. r. 9, where a man being convi6led of
ny felony for which he may demand the benefit of his
:Iergy, if a woman be convi<5^ed for a like offence, upon
ler prayer to have the benefit of this ftatute, judgment
>f death (hall not be given againft her, but fhe fhali
ufFer the fame punifhment as a man Ihould fufFer, that
las the benefit of clergy allowed, f, 6.

Is taken for guilty of felony'] This ftatute, and the cuftom
dF the realm, reftrained the benefit of clergy only to felo-
ly ; fo as they were to anfwer to high treafon, and all
offences under felony. 2 /«/?. 636.

And is demanded by the ordinary] Yet a m.an might wave
the privilege of his clergy if he would, and put himfclf
upon his country. 2 Injh 638.

By folemn inqueji of lawful men] Before this ftatute, if
any clerk had been arretted for the death of a man, or any

! other felony, and the ordinary did demand him before the
fecular judge, he was delivered without any inquifition to

1 be made of the crime ; but after this ftatute, to the end
that the ordinary might have more care of purgation to be
duly done according to the provifion of this acl, when
any clerk was indifted of any felony, and refufed to an-
fwer to the felony, but claimed the privilege of the cler^
gy, and was demanded by his ordinary, yet he was not
M 3 delivered

i66 Beneft't of clergy

delivered to the ordinary before he had been firil indicted
and arraigned, and his offence had been inquired of and
found by an inquefl: of office : which was done, both to
the end that if the prifoner were found guilty, he might
abfolutelv^ forfeit his goods (which anciently were faved
by a purgation), and alfo that the court might be appri-
fed, whether it were proper from the circumftances of the
cafe, difclofed upon fuch an inquiry, to deliver the clerk
to the ordinary generally^ in which cafe he was allowed
to make his purgation ; or fpecially^ without purgation to
he tnade. But this practice being found inconvenient to
prifoners, becaufe they loft their goods, if found guilty
by fuch inquiry, and yet could take no challenge to any
of the jury, it being but an inqueft of office, it hath been
the general practice ever fmce the reign of Hen. 6. to
oblige thofe who demand the benefit of clergy, to plead
and put themfelves upon their trial, under pain of being
dealt with as thofe that ftand mute, whereby they forfeit
their goods without any inquiry concerning their crime,
2 Inji, 164. 2 Haw. 358.

hi no ?na?iner Jhall he delivered without due purgation"}
When a perfon was delivered to the ordinary, he was td
remain in the ordinary's prifon : if committed generally,
then he might make his purgation ; which was a trial
before the ordinary by a jury of twelve clerks, wherein if
he was acquit, he was difcharged, if found guilty, he
was degraded, and delivered over to the fecular power.
And when he had made his purgation, he had always
reftitution of his lands feized, unlefs he were attaint.
And as touching his goods, the difference was thus ; If
before convidlion, upon his arraignment, the prifoner
had his clergy (as was ufed commonly before the time of
Hen. 6.) then if he made his purgation, he had reftitu-
tion of his goods, unlefs he had fled : But if he had plead-
ed to inqueft, and were convi6l, then the goods were
forfeited by the conviction, and he fliould not have refti-
tution upon his purgation. 2 Hale's Hi/i. PL Cr, 384.
2 In/l. 638. 23//. 8. c. i.f. 5, 6.

But if the clerk were delivered to the ordinary without
purgation to be made^ there he continued prifoner during
his life, unlefs pardoned by the king ; and the king had
not only his goods as abfolutely forfeited, but alfo the
profits of his lands during his life. 2 H H. 384.

Without

JBmeftt of clergp. 167

ffith§td due pmrgaiian] Lord Coke isiys bdbre this 3^-
aite, purgatioos were unduly made, more for fzinooTy tkat
6r fttfAennce of juftice ; wlieieby maietit£ton were en-
zilMia^ to oibid: And die cvik was not lemedkd hj
dtts aid:, but the aboies in nakiog porgatioiis fe'I conti-
laed, and in the ead hcyagie lb iittokrab4e, ttat ciieen
Elizabeth I7 cooleBt of partiampwr took k quite away.
z /*/l?. 165.

3. Again 5 Ae beiie£t of ckrgy is fiedier cocSrmcd, How far, arf i»
TV the ftatuteof die 25 £^. S^Ji. ^. r.4. by which it Is «-^t^Ui
2ckd, dot ^ WKOHur if citrJby wkuhJkailbetsmx&dUfm)^^tMmm
fbt fumlar fud^^ fir mtj tnsfmi jr fikmia^ Um^ug wAgr tw.
<^Umi thim At img hmtf^y fit&fittif hmx mad m^ tiic

In all ca^of h^ treafofi, cdogj^wis acfer JkmcJ
io ^s kiogdom. 2 H. H. 33c.

But hf the cwwmon lair, in ail caies of ieioor or petit
fteaioB clergy was allow^de, excepting two, tiz. i. In-
fidtatores vianxm et depofmlatores agroram. 2. WEml
bomine of houTes. And the caufe iHir dieie were ex-
cepted was, becauie -by imciptcudoa of law they are
boiiile ads. And tfaae^Ke Ibeietiaies dvie words, in£-
diatores vianurn et depopobtorcs agrariiBBy were pat ia
the indictments of clerks^ oo parpole to o«ft than of the
beneht of clergy ; which cau^ the 2St of the 4 A 4. r.
2. tD be made, to put tfaete claufes out of indioments,
and to allow clergy ii they were ia cheiii- 2 H.IL 328,

-his £atute clergy is allowed in all trezfocs or

felonies (except treaibns againft the kic^} ; fo that afi^r
this ftacute there was ckrsy in all odicr feloaiies. I£zl^
PL 23c.

Conieqoendy, wheqjbever clergy is b<^ ailowzbk in
any other cafes, it is taken away 1^ fime Aibfeqaent ad
•f porliaflMnt. Hm. PL 23c.

Conlequentlv, where a ftatutc makes a new felon^-,
ckrgy is incident thereunto, unk^ it be fpecially ciken
away by f«ch itatute ; but wberc it makrs a new tr^aicn,
^»ere is no clergy. 2 H. H. 33c.

- k~ it doth make a new ^ooy, and takes awtiy

'-ot gCBcrallT, bttt in fucb or fuch cafes j regulirfy

r cales clergy is aUowahle : as if it ctke away

t -:; r' : *: :": rarty be coari^ed by veriii*^, yet be

A2: 7 : J if heftand mute. ii/. H. 5/5.

F -. .-lerally, that it fiiail b
cu: :.. .or thjt he (h-!! fLr.. .

i68 asenefit of tlnQV*

felony without benefit of clergy; this excludes it in all
circumftances, and to all intents. 2 H» H, 335.

And where a ftatute oufteth clergy in cafe of felony, it
is only fo fa. oufted, and only in fuch cafes, and to fuch
perfons, as are exprefsly comprifed within fuch ftatutes ; for
in favour of life, and of the privilege of the clergy, fuch
ftatutes are conftrued literally and ftridly. 2 H, H, 335.
And therefore if clergy be oufted as to the principal, it
is not oufted as to the acceflary ; if as to the acceflary
before, it is not extended to the acceflary after ; if where
the prifoner is convi6l by verdidl, it holds not as to a
convi6lion by confeflion, nor as to an attainder by out-
lawry, nor to a ftanding mute. 2 H, H, 335.

And in all thofe cafes wherein it is taken away, the
indictment of fuch felony muft bring the cafe within
the particular proviflon of thofe ftatutes, which in fuch
cafes take away clergy ; otherwife it is to be allowed, tho'
upon the evidence it may fall out, that the truth of the
fadl appears to be fuch, as is within the fpecial provifioa
of thofe ftatutes that fo take away clergy, i JF/. //. 5 1 7.
Clergy in cafe of 4. If any pcrfon be indited of any offence^ for which by
ftanding mute, fjirtue of any former flatute he h excluded from clergy , if he
had been convi5l by verdi£i or confeffion \ if he Jhalljland mute^
or tvill not anfwer direSfly to the felony^ or Jhall challenge
peremptorily above twenty of the jury^ or be outlawed^ he Jhall
not be admitted to the benefit of clergy, 3 W. c. 9. f. 2.

If any perfon be indidfed] Therefore this extendeth not
to appeals. 2 Haw. 348.

By virtue of any former Jlaiufe] Therefore this extendeth

not to offences made felonies by ftatutes fubfequent to the

3 /F". c. g. 2 Haw. 348.

Clergy may he 5* ^^ ^^^ offence be vi'ithin clergy, tho' in ftri£i:nefs of

«liowad, tho' not law the prifoncr ought to pray it, yet it is the duty of

l>ra)ed. ^j^g judge to allow it, tho' not prayed ; and that, as well

after judgment as before. 2 H. H. 321.
T'lirning in the 6. Every perfon not beitig within orders^ which once hath
^^^^' hem ad?nitted to the benefit of his clergy^ eftfoons arraigned 0^

any finch offence^ fioall not be ad?mited to have the benefit of the
clergy. And every perfon fio coyiviHed for murder^ to be marked
With an M upon the hraun of the left thumbs and for any.
other felony zvith a T^ by the gaoler openly in court before the
jitdge^ before that finch pcrfion be delivered to the ordinary.
And ifi any perfion at a ficcond tiine ofi afiking his clergy becaufie
he is within orders^ hath not there ready his letters of orders,
cr a certificate of his ordinary ivitnrjfmg the fame 'y. the juftices

before

H^tmlit of cUtg^ 169

hfon whom he is arraigned Jhall give him a day to bring in
the fame^ which if he Jhall not do^ he Jhall lofe the benejit of
his clergy as he Jhall do ih^at is without orders, 4 H. 7. c.

But the king may pardon the burning in the hand, as
well in an appeal, as upon an indidlment. 3 Injl, 1 14.

And a clerk in holy orders fliall not be burnt in the
hand. 2 /«/?. 637. 2 H, H, 389.

And he may have his clergy, in cafes within clergy, a
fecond time or oftner. 2 H, H, 389.

7. No man (hall be oufted of his clergy a fecond time Conviaion fot
by the bare mark in his hand, or by a parol averment, ^^^ ^<=«<>n^ «f-
without the record teftifying it, or a tranfcript thereof *^^*
according to the following ftatutes. 2 //. H. 373.

By the 34 & 35 H. 8. c. 14. the clerk of the crown^
ihrks of the peace ^ and clerks of ajfize for the time beings where
any attainder^ outlawry^ or conviaion of felony Jhall be hady
jhall within forty days if the term be then, if not ^ then with-
in twenty days after the beginning of the term next following
the faid forty days^ certify a tranfcript briefly and in few
words, containing the tenor and effeSl thereof, into the king's
bench, there to remain for ever of record. And the clerk of the
crown in the kings bench Jhall, at all fuch times as the jufiices
of gaol delivery or jufiices of the peace in every county do write
unto him for the names of fuch perfons, certify to them without
delay the names and furnames of the faid perfons, with the
caufes wherefore they were conviil or attainted. But this not
to extend to require certificates out of Wales, nor the counties
^;/Chefter, Lancafter, or Durham.

And by the 3 W. c. 9. f. 7. Forafmuch as men who have
■ Kce had their clergy, and women who have once had the benefit
f the fiatute, may happen to be indiSied for an offence com-
Jtted afterwards in fom&^^ther county ; the clerk of the crown^
.lerk of the peace, or clerk of the aJJizes, where fuch perfon
Jhall be convicted, Jhall at the requeji of the profecutor or any
ether in the king's behalf, certify a tranfcript briefly and in
few words, containing the effe£i and tenor of the indiifment
and conviaion, of their having the benefit of the clergy or of
the fiatute, and their additions, and the certainty of the felony
and conviction, to the judges and jufiices in fuch other county ,
which certificate being produced in court, Jhall be a fujfficient
proof of their having had the benefit cf the clergy or of the
fiatute.

And it feems that if the prifoner deny that he is the
fame perfon, ifTue muft be joined upon it, and it mufl be
tried that he is the fame pcrfcn, bcfprc he can be ouflcd
of clergy. 2 i/. if. 373.

8. Bv

1 70 JBeneft't of clergp*

Offender bow to g^ By the 18 Eliz. c. 7. ferfons admitted to their dergjy

tertkroy^at^^' /^^^ ^^^* ^^ delivered to the ordinary^ hut after clergy allowed^
Jcwsd/ ^777^ burning in the hand^ Jhall forthwith he enlarged and de^

livsred out of prifon ; or may hy the judge be detained further

in prifon^ not exceeding one year.

And by the 5 An. c. 6. offenders burnt in the hand Jhally
/ at the difcretion of the judgCy he committed to the houfe of

correction or puhlick zuorkhoufey 7iot lefs than fix months nor

exceeding two years ^ to be kept to hard labour.

And by the 4 G. c. 1 1. perfons conviSied of offences with^

in the benefit of clergy [except perfons conviCled for buying or

receiving fiolen goods) inftead of being burnt in the hand or

whipty may be tranfported for feven years.
Forfeiture on g ^^ convi6lion, a perfon havins: had his clerffv

clergy allowed, ^ ^ . •; ,, 1 • 1,1 1 i ^, • /. r*'

forfeiteth all his goods that he nad at the time of the

conviction, notwithftanding his burning in the hand. 2
/f.i/. 388.

Yet by burning in the hand he is put into a capacity
of purchafing and retaining other goods. 2 H. H. 389.

And prefently upon his burning in the hand, he ought
to be reftored to the pofleffion of his lands, and from
thenceforth to enjoy the profits thereof. 2 H. H. 389.

And altho' he be not burnt in the hand, but the king
pardons it, he is thereby put into the fame condition as
if he were burnt in the hand, and rendred a perfon now
capable to purchafe and retain goods. 2 H, H. 389.

Kottobepunifn- 10. And confcquently, after clergy and burning in the

edalfointhefpi- jj2j^jj^ he fliall not be proceeded againfl by the ecclefi-
aftical iudge ; for it amounts to a pardon by the king.
2 H. H. 389.

And altho' a clergyman in orders fhall not be burnt in
the hand, yet after his difcharge he fhall have the fame
privilege as if he had been burnt in the hand ; and there-
fore fhall not be drawn in queftion in the ecclefiaftical
court, to deprive him, or inflidt any ecclefiaftical cenfure
upon him. 2 //. H. 389.

RcnoTcdtohla 1 1. And it fcemeth, that it rcftorcs the party to his.

crcdjt. credit ; and confcquently enables him to be a good wit- -

nefs. 2 Haw. 364.

And it is holden, that after a man is admitted to his-
clergy, it is aftionable to call him felon ; becaufe his '
offence being pardoned by the ftatute, all the infamy and
other confcqucnccs of it are difcharged. 2 Haw, 365.

Bible. Sec CljtircD*
Bier. See CijUltlj*

Kigamp*

171

jBi'samp.

T\IGAM1 are they who have married two wives or
t^ more fuccelTively, or one widow. 2 Inji, 273. Gibf.

^^3- ^ . . .

4 Ed. I. ft. 3. c. 5. Concerning men twice married^ cal-
led bigami, whom the bijhop of Rome by a conjiitution made
at the council of Lions hath excluded from all clerks privilegey
whereupon certain prelates [when fuch perfons have been at-
tainted for felony) have prayed for to have them delivered as
clerks y which vjere made bigami before the fame conjiitution ;
// is agreed and declared before the king and his council ^ that
the fame conjiitution fi)all be underjlood in this wife^ that whe-
ther they were bigami before the fame conjiitution or after,
they Jhall not be delivered to. the prelates^ but jujlice Jhall hi
executed upon them^ as upon other lay people,

18 Ed. 3. ft. 3. C.2. If any clerk be arraigned before our
Jujiices at our fuit^ or at the fuit of the party ^ and the clerk
holdeth him to his clergy., alledging that he ought not before the?n
thereupon to anfwer ; and if any man for uj or for the fame
party will fuggeft^ that he hath married two wives or one
Widow, that upon the fame the jujiices jhall not have the cogni-
%ance or power to try the bigamy by inquejl or in other manner ^
^t it Jhall be fent to the fpiritual courts as hath been done in
times pajl in cafe of bajlardy. And till the certificate be made
by the ordinary ^ the party in whom the bigamy is alledged (hall
Idbide in prifon if he be not mainpernable.

I Ed. 6. c. 12. f. 16. Every perfon who by any Jtaiute
or law of this realm ought to have the benefit of clergy ^ Jhall
te allowed the fame altho' he hath been divers ti?nes married to
tiny fingle woman or fiff^le women^ or to any widow or wi"
flowsy or to two wives or more.

JB^CbOpS*

FO R biftiops leafes^ together with thofe of other eccle-
fiaftical corporations, whether fole or aggregate 3 fee

title JLcafe^^

I. Of archhifhops and hifhops in general,

3 II. Form

172 J5l'Wg.

II. Form ayid manner of making and consecrating

archbijhops and bijhops,

III. Concerning refidence at their cathedrals.

IV. Concerning their attendance in 'parliament,

V. Spiritualties of bijhopricks in the time of vacation,

VI. Temporalties of bijhopricks in the time of vacor

tion,

VJI. Archbijhops jurifdiSlion over their provincial
bijhops,

VIII. Of fuffragan bijhops,

IX. Of coadjutors:

I. Of archbijhops and bijhops in general:

Ageofperfons to I. By the preface to the form and manner of mab'ng

be made biihops. ordaining and confecrating of biftiops priefts and deacons
(confirmed by a£l of parliament, 3^4 Ed. 6. c, 10. 5
i^6Ed.6,c.i. SELci. 13 ^ 14C. 2. r.4.) Every
man which is to be ordained or confecrated bifhop, (hall
be full thirty years of age.

Biibop what. ^' Bifhop is from the faxon bifcopy and that from the

ereek tviaKovo^, an overfeer or fuperintendant ; fo called
from that watchfulnefs, care, charge and faithfulnefs,
which by his place and dignity he hath and oweth to the
church. God, 22.

ArchfcUhop 3* -^^ archbifhop is the chief bifhop of the province,

who next and immediately under the king, hath fupreme
power authority and jurifdidlion in all caufes and things
ecclefiaftical. God, 12.

At firft, the title oi archbjjhop feemeth to have been only
a name of honour ; whence in fome countries, efpecially
in Italy, feveral are diftinguiftied with that title, who in-
deed take place of, but have no power or authority over,
pthcr bifhops. Bower s Hijl, Fop, V. I. p. no.

Metropolitan^ was a title given to the bifhop of the chief
c'liy of a province. Id,

As was like wife that of prifnate ; he being primus, or
the firft of the province : for fuch was the original figni-
fication of that word in an ecclefiaftical fenfe ; but in pro-
ccfs of time, the title of primate was reftrained to the
bifhops of fome great cities. Id,

A patriarch was the chief bifhop over feveral kingdoms
or provinces, as an archbifhop is of feveral diocefes,
God. 20.

4. The

4. The ancient Britons are believed to have had at leaft Conftitution of
one archiepifcopal fee before the times oi Aujiin the monk, %^2T "'^'^"
viz. at Caerleon^ or (as fome will have it) at Landajf.
Johnf. 35. God. 17.

And upon the pope's granting unto Auftin a pov^^er to
eredl a metropolitical fee at York (with fubordination
neverthelefs to himfelf as primate), Dr Warner obferveth,
that the reafon of this preference with regard to York
was, becaufe formerly under the Romans York had been
an archbifhoprick, as well as London and Caerleon. i
JVarn. Eccl Hijl, 50.

But at this day, the ecclefiaftical ftate of England and
Wales is divided only into two provinces or archbifhop-
ricks, to wit, Canterbury and York, Each archbifhop
hath within his province bifliops of feveral diocefes. The
archbifhop of Canterbury hath under him within his pro-
vince, of ancient foundations, Rochejler^ London^ tVin-
chefter^ Norwich^ Lincoln^ Ely^ Chichejler^ Salijhury^ Exeter^
Bath and Wells^ Worcejier^ Coventry and Litchfield^ Here-
ford^ Landaffe^ St, David's^ Bangor ^ and St. Afaph-, and
four founded by king Hen, 8. eredled out of the ruins of
diflblved monafteries, viz. Gloucejiery Brijiol^ Peterborough
and Oxford, The archbifhop of York hath under him
four, viz. the bifhop of the county palatine of Chejler^
newly erected by king Hen, 8. and annexed by him to the
archbifhoprick of York ; the county palatine of Durham ;
Cariyie ; and the ifle of Man^ annexed to the province of
York^ by king Hen. 8. But a greater number this arch-
bifhop anciently had, which time hath taken from him.
I Inji. 94.

Every diocefe is divided into archdeaconries, whereof
there be fixty; and every archdeaconry is parted into
deanries ; and deanri^^ again into parifhes, towns, and
hamlets, i Jnji. 94.

But this divifion into parifhes feemeth not to have been
made all at once, but by degrees, as churches from time
to time were built and endowed by lords of manors and
others, for the ufe of their tenants or other inhabitants
within fuch a diflridl j and this feemeth to be the reafon
why there are fome places at this day which are not in
any parifh, but are extraparochial.

Every bifhop, many centuries after Chrifl, was univer-
fal incumbent of his diocefe, received all the profits, which
■were but offerings of devotion, out of which he paid
^lic fularies of /iich as officiated under him, as deacons
-nd curates in places appointed. God, 23.

Afterwards,

174 BlG^OpS.

Afterwards, when churches became founded and en-
dowed, he fent out his clergy to refide, and to officiate
in thofe churches ; referving neverthelefs to himfelf a
certain number in his cathedral to counfel and affift him,
which are now called deans and prebendaries or canons.
Archbifliopof 5. Canterbury was once the royal city of the kings of
Canterbury. Kent ; and was given by king Ethelbert, on his conver-
fion to chriftisnity, to Aullin the firft archbifhop thereof,
about the year of our lord 598. God. 13, 17.

If we confider Canterbury as the feat of the metropo-
litan, it hath under it twenty one bifhops (as hath been
faid) ; but if we confider it as the feat of a diocefan, fo it
comprehends only fome part of Kent (the refidue being
in the diocefe of Rochefter), together with fome other
parifhes difperfedly fituate in feveral diocefes ; it being an
ancient privilege of this fee, that the places where the
archbifhop hath any manors or advowfons, are thereby
exempted from the ordinary, and are become peculiars of
the diocefe of Canterbury, properly belonging to the ju-
rifdicSlion of the archbifhop of Canterbury. God, 14.

The archbifhop of Canterbury is flyled primate and
metropolitan of all England, albeit there is another archie-
pifcopal province within the realm ; partly, becaufe when
the popes had taken into their own hands, in a great
meafure, the archiepifcopal authority, they invefled the
archbifhops of Canterbury with a iegatine authority
throughout both the provinces ; and partly, becaufe the
archbifhop of Canterbury hath flill the power, which the
popes in times pad ufurped, and which by adl of parlia-
ment was again taken from the popes, of granting facul-
ties and difpenfatigns in both the provinces alike.

Yea further, the archbifhop of Canterbury anciently
had primacy not only over all England but over Ireland
alfo, and from him the Irifh. bifhops received their con-
fecration ; for Ireland had no other archbifhop till the
year 1152. For which rcnfon it was declared in the time
of the two fir/l Norman kings, that Canterbury was the
metropolitan church of England, Scotland, and Ireland,
and of the iflcs adjacent 5 the archbilhop of Canterbury
was therefore fomctimes Ailed a patriarchy and orhis bri-
tannici poniifix ; infomuch that matters recorded in eccle-
fiaflical aflairs did run tluis, viz. a?n?9 po?2tifiati'.s mjhi
primOy fecimdo^ i^c. God. 2/0.

At general councils abroad, tlie archbifhop of Canter-
bury had the precedency of all otlicr archbifliop'>. (1 /.
21.

- At home, he hath the privilege to crown the kings of
England. God. 13.

He is faid to be inthroned^ when he is veiled in. the
archbifhoprick ; whereas bifhops are faid to be Injlalkd.
God. 21.

He bath prelates to be his officers : thus, the bifhop of
London is his provincial dean; the bifhop of Winchefter,
his chancellor ; the bifhop of Lincoln anciently was hijs
vice-chancellor ; the bifhop of Salifbury, his precentor j
tlie bifhop of Worcefler, his chaplain ; and the bifhop of
Rochefler (when time was) carried the crofs before him.
< 'c'd. 14.

He may retain and qualify eight chaplains ; which is
more by two, than any duke is allowed to do by ftatute.
God. 21.

In fpeaking and writing to him is given the title of
grace^ and moji reverend, father in god. Chamb. Pr. St.

He writes himfelf by divine providence ; whereas bifhops
only u[e by divine per mljjlon. God. 13.

6. The firft archbifhop of York that we read of, wa§ Archfcifhop of
Paulinus, who by pope Gregory's appointment was made York,
archbifhop there, about the year of our lord 622. God»

The province of York, anciently claimed and had a
metropolitan jurifdlcStion over all the bifhops of Scotland,
whence they had their confecration, and to which they
fwore canonical obedience, until about the year 1466,
when George Nevil being at that time archbifhop of York,
the bifhops of Scotland withdrew themfelves from their
obedience to him; and in the year 1470, pope Sixtus the
fourth created the bifhop of St. Andrews archbifhop and
metropolitan of all Scotland. God. 14, 18.

The archbifhop of York hath the privilege to crown
the queen confort ; and to be her perpetual chaplain.
"Chamb. 65.

He alfo, in like manner as the archblfliop of Canter-
bury, is faid to be Inthroned^ when he is vefled in the
archbifhoprick. God. 21.

And he may retain and qualify eight chaplains; where-
as a bifhop can only qualify fix. God. 21.

He alfo hath the title of grace^ and moJi reverend father
m god', whereas bifhops have the title of lord^ and right
reverend father In god. Chamb. 65.
VVnd he writes himfelf by divine provid,;nce. God. 1 3.

7. Th9

176 25i(l)0pg»

Their precedence 7. The archbifiiop of Canterbury is the firft peer of
in the ftate. jj^g realm, and hath precedency, not only before all the
other clergy, but alfo (next and immediately after the
blood royal) before all the nobility of the realm ; and as
he hath the precedency of all the nobility, fo alfo of all
the great officers of flate. God. 1 3.

The archbifhop of York hath the precedency over all
dukes, not being of the blood royal ; as alfo before all
the great officers of ftate, except the lord chancellor.
God. 14.

And every other bifhop, in refpefl of his barony, hath

place of all the barons of the realm, under the degree of

vifcount. God, 13.

Their precedence 3. The archbifliop of Canterbury hath the precedency

°"^^J™'"^^'"'of all the other clergy; next to him the archbifhop of

York ; next to him the bilhop of London ; next to him

the bifhop of Durham ; next to him the bifhop of Win-

chefler ; and then all the other bifhops of both provinces

after the feniority of their confecration ; but if any of

them be a privy counfellor, he fhall take place next after

the bifhop of Durham, i Inji, 94. i Ought. 486.

^*%*'^"JdUh?' 9. By the 25 Ed. 3./. 5. c. 2. it is thus enafted :

wclatc.^ iW^^r^cx'fr, there is another manner of treafon^ where a man

fecular or religious Jlayeth his prelate^ to vihom he oweth faith

and obedience*

Another manner of treafon'] The firft part of this flatute
is concerning high treafon ; fo called in refpedl of the
royal majefly againfl whom it is committed. And the
fort of treafon fpoken of in this claufe, is called petit trea-
fon, in regard it is committed only againfl: fubjed:s. 3
Jnji. 20.

Slayeth his prelate] And this was petit treafon at the
common law. 3 InJI. 20.

^To whom he oiveth faith and obedience'] Petit treafon doth
prefuppofe a trufl and obedience in the offender of one
kind or another. 3 InJi. 20.

II. Form and manner of making and confe crating arch*
bifhops and bi/hops,

t»rt.^^,- 1,, «* I. When cities were at firfl converted to chriflianity,

Biinopncks Skt i o i i i i ^ r •

firft eleftive by the bifhops werc eledced by the clergy and people : lor it
the clergy and was then thought convenient, that the laity, as well as
pcop c. ^1^^ clergy, fhould be confidcrcd in the cledlion of their

bifhops.

21^1't^ops* 177

liftiops, and fhould coticur in the election ; that he, who
/as to have the infpedlion of them all, might come in by
general confent. Ayl. Far. 126.

2. But as the number of chriftians increafed, this was Then donative
Dund to be inconvenient ; for tumults were raifed, and ^X ^^^ prmcc.
jmetimes murders committed, at fuch popular eledtions ;
nd particularly, at one time, no lefs than 300 perfons
i rere killed at fuch an eledion. Id,

To prevent the like diforders, the emperors being then

hriftians, refervcd the eleftion of bifhops to themfelves ;

: "Ut in fome meafure conformable to the old way, that is

! D fay, upon a bifhop's death, the chapter fent a ring and

\aJloral Jlaff Xo the emperor, which, he delivered to the

I erfon whom he appointed to be bifhop of that place. Id,

\ But the pope, or bifliop of Rome, who in procefs of

me got to be the head of the church, was not pleafed

I lat the bilhops fhould have any dependance upon princes ;

nd therefore brought it about, that the canons in ca-

I ledral churches fhould have the election of their bifhops ;

: ^hich cledtions were ufually confirmed at Rome. Id,

But princes had flill fome power in thofe eledlions.

ind particularly in England^ we read, that in the Saxon

imes, all ecclefiaflical dignities were conferred by the

ing in parliament. Ingulphus, abbot of Crowland, in

le time of William the conqueror, tells us, that for

lany years palt there had been no canonical eledlion of

j relates, for that they were donative by delivery of the

; ing ^d pafloral flafF; the one fignifying, that the bifhop

I /as wedded to the church ; and the other was an enfign

I 'f honour, always carried before him, and was a token of '

i hat fupport which he ought to contribute to the church,

I r rather that he was now become a fhepherd of Chrifl's

lock. Id.

\ Lord Coke eflablifheth the right of donation in the
lings of this realm, upon the principle of foundation and
)roperty: for that all the bifhopricks in England were of
he king's foundation, and thereupon accrued to him the
, ight of patronage, i Injl. 134, 344.

So alfo the bifhopricks in Wales^ were founded by the
jrinces of Wales; and the principality of Wales was
lolden of the king of England as of his crown ; and when
the principality of Wales for treafon and rebellion v/as
forfeited, the patronages of the bifhopricks there became
annexed to the crown of England, i InJl. 97.

And in Ireland^ the bifhopricks are fti;l donative by
letters patent at this day. i ^alk. 136.

Vol. I. N The

lyB 15ta)0pS.

The proprietor of the ifle of Man^ is patron of the

biftioprick there ; but the archbifhop of York doth not

coiifecrate him, till the broad feal of the king's confenl

be produced. Johnf. 29.

Nextelcaive by 3. Hildebrand, who was pope in the reign of kingWjl-

the deans and jj^^^ ^^^ conqucfor, was the firll that oppofed this way

to^hTpop^'s'^ of making bifhops here; and for that purpofe he called ^

cpnfirmation. council of iio bifhops, and excommunicated not onl|

the emperor Hen. 4. but alfo all prelates whatfoever that

received invefliture at the hands of the emperor or of any

layman by delivery of the ring and ftafF. AyL Parerg,

126.

But notwithftanding that excommunication, Lanfrank
was made archbifliop of Canterbury at the fame time, andi
by the fame means, according to Malmefbury j but the
Saxon annals in Bennet college library are, that he was
chofenby the fenior monks of that church, together with the
laity and clergy of England, in the king's great council.
Id.

Howbeit, Jnfelm did not fcruple to accept the archbi-
fhoprick by delivery of the ring and flaff, at the hands of
William Rufus ; tho' never chofen by the monks of Can-
terbury. And this was the man, who afterwards con-
tefled this matter with king Hen. i. in a moft extraor-
dinary manner. For that king being forbidden by the
pope to difpofe of bifhopricks as his predecefTors had done
by delivery of the ring and ftafF, and he not regarding
that prohibition, but infifting on his prerogative, the arch-
bifhop refufed to confccrate thofe bifhops whom the king
had appointed. At which the king was fo much incenfed,
that he commanded the archbifhop to obey the ancient
cufloms of the kings his predecefTors, under pain of being
banifhed the kingdom. This contefl grew fo high, that
the pope fent two bifhops to acquaint the king, that he
would connive at this matter, fo long as he aded the part
of a good prince in other things. Whereupon the king
commanded the archbifhop to do homage, and to confe-
crate thofe bifhops whom the king had made ; but this being
only a feigned mefTagc, to keep fair with the king, and
the archbifhop having received a private letter to the con-
trary, the archbifhop ftill difobeyed the king. And at
length the king was forced to yield up the point, referving
only the ceremony of homage to himfelf from the bifhops,
in rcfpe6t of the temporalties. Id.

And king John afterwards, after feveral contefls, by
his charter, acknowledging the cullom and right of the

crown

7BiH)tip&* '79

crown in former times, yet granted by common confent
of the barons, that the bifhops fliould be eligible by the
chapter; which after was confirmed by divers adls of par-
liament. Which ele£i:ion by the chapter was to be a free
ele(5tion, but founded withal upon the king's conge d'

11 eflire ; and afterwards to have the royal afTent ; and the
new elected bifhop was not to have his temporalties re-
ftored, until he had fworn allegiance to the king ; but it

' was agreed, that confirmation and confecration fliould be
in the power of the pope ; by w^hlch means he gained in

[ effect the difpofal of all the bifliopricks in England, i
In/i. 134. Gibf. 104. 3 SalL yi,

' But neither was he content vi^ith this power only of
confirmation and confecration, but would oftentimes col-

: late to the bifliopricks hirnfelf : whereupon by the fi:atute

' of the 25 Ed. 3. Ji. 6, it was enabled as followeth j viz.

I The free eleSiions of archbi/hops bijhops and all other dignities and

\ benefices ekSfive in England^ Jhall hold from henceforth in the
manner as they were granted by the king's progenitors^ and the

I ancejiors of other lords^ founders of the f aid dignities and other
benefices. And in cafe that refervation collation or provifton be
made by the court of Rome^ of any archbijhoprick bijhoprick
dignity or other benefice^ in dijiurbance of the free ele£iions
aforefaid \ the king Jhall have for that time the collations to the
archbijhopricks and other dignities eleSiive which be of his ad-
vowry ; fuch as his progenitors had before that free eleSlion was
granted: finc-e that the eleSlion was firjl granted by the king^s
'progenitors upon a certain form and condition^ as to demand
licence of the king to chufe^ and after the eleSlion to have his
royal affent^ and not in other manner ; which conditions not
kept^ the thing ought by reafon to refort to its firjl nature,

4. Afterwards, by the 25 H. 8. c. 20. all papal jurif- Then eleaive by
didlion whatfoever in this matter was intirely taken away ; th? deans and
by which it is enacSted, that no perfon Jhall he prefented ^w^ouMhTpo^e'jI'by
nominated to the bijhop of Rome ^ otherwife called the pope, <?r the kng's Cole
to the fee of Rome ^ for the office of an archbijhop or bijhop ; but nomination*
tbig fame Jhall utterly ceafe^ and be no longer ufed within

this realm, f. 3',

'And the manner and order as well of the elcdion of
archbifliops and bifliops, as of the confirmation of the
election, and confecration, is clearly enacted and expref-
fed by that ftatute.

5. Afterwards, by the fliatute of the i Ed. 6. c. 2. all Th^n donative by
bimopricks were made donative again, as formerly they the king aioRc,
bad been 5 by which it was enafted as followeth : /r.^^yi without eiea..n,

N 2 much

i8o J&iCbOP^-

much as the eleSfions of archbijhops and bljhops by the deaniani

chapters^ be as well to the long delay as to the great cojl and

charges of fuch perfons as the king giveth any archbijhoprtck or

hijhoprick unto ; and whereas the faid eleSiions be in very deed

no ele^ions, but only by a writ of conge d* ejlire have colours

Jhadows or pretences of ele^ionsy ferving neverthelefs to no pur-

pofe, and feeming aljo derogatory and prejudicial to the kin^s

prerogative royal^ to whom only appertaineth the collation and

gift of all archbijhopricks and bijhopricks ajtd fuffragan bi-

/hops within his dominions ; // is enahed^ that from henceforth

no conge d^ ejlire be granted^ nor eleSfion by the dean and chap-

ter be madcy but that the king by his letters patents may collate.

And it hath been fuppofed by fome, that the principal

intent of this a6l was, to make deans and chapters lefs

neceflfary ; and thereby to prepare the way for a dilTolu-

tion of them. Gibf 113.

F^^al^7, eleftlve 6. But this ftatute was afterwards repealed, and the

again by the deaa matter was brought baclc again, and ftill refteth upon the

der the^khig's"" ftatute of the 25 H. 8. c, 20. (as hereafter foUoweth),

notnination. 12 Co, 8.

Notice of the 7* When a bifhop dies or is tranftated, the dean and

avoidance. chapter certify the king thereof in chancery, and pray

leave of the king to make elediion. God. 29.
Leave to cleft. ^' Upon which, it is enabled by the 25 H, 8. c. 20.

that at every avoidance of any archbijhoprick or bijhoprick^ the

king may grant to the dean and chapter a Itcenu under the great
fcalj as of old time hath been accu/lomedy to proceed t& elc£lion

of an archbijhop or bijhop, f. 4,

Which licence is called in french conge d^ eflire^ that is,

leave to chufe. Terms de la ley.
Nomination of Q. And with the licence^ a letter mijjive ; containing the

dcfted^*'" ^° ^^ '^^^^ ^f ^^^ ^^^-1^^ ^^""^^ /^O'T^^^^ ^^^^ ^«^ ^M^' 25 H. 8.
c. 20. f. 4.

Eleftion, 10. By virtue of which licence^ the dean and chapter JJjaU

with allfpeed in due form ele£f and chufe the faid perfon named
in the letters miffive^ and none other, 25 H. 8. c. 20. f. 4*
And if they delay their eleSlion above twelve days next after
fuch licence or letters miJJive to them delivered ; the kijjg Jhall
nominate atid prefent^ by letters patents under the great feal^
fuch perfons as he Jhall think convenient^ to be invejled and
conjecrated in like manner as if he had been ele^ed by the dean
and chapter, f. 4, 5.

Confent of the ii« After cledHon, then there muft be the confcnt of

perfoa eicflcd, the perfon clcdled ; in order to which, the pro(Stor, cotir
ftituted by the dean and chapter, exhibits to him the in*
ftrumcnt of eledion, and prayeth his allent to the famcrl

wliich-

JBlC^OpS* i8i

-irhich aflent is to be given by an inftrument in form, in
the prefence of a notary publick. Gibf, no.

12. And ifthefaid dean and chapter do eleSi within twelve Notification of
days as aforefaid^ then they jhall make certification thereof to the ^^^ cleaion.
king under their common feal\ after which certification^ the

perfon fo ele6ied Jhall he reputed and taken by the name of lord
eleded of the faid dignity and office that he Jhall he ele^ed to.
25 H. 8. c. 20. L s-

And if the dean and chapter^ after fuch licence Jhall be dell-
vered to them^ proceed not to eleSlion and fignify the fame
according to the tenor of this a^^ within twenty days next after
fuch licence Jhall come to their hands ; or if any of them admit
or do any other thing contrary to this aSf -, then every fuch
dean and particular perfon of the chapter fo offending^ and
every of thir aiders counfellors and abettors, Jhall incur a pra-
munire, f. 7.

13. And then making fuch oath and fealty only to the ^''«i^ JJ^^^JiJatfo^,
; as Jhall he appointed for the fame^ the king by letters patents

ujid^r his great feal Jhall fignify the faid eleSiion^ if it be to
the dignity of a bijhop^ then to the archbijhop of the province^
I if the fee of the faid archbijhop is full^ and not void ; and
I if it be void, then to any other archbijhop within this realm or
in any other the king's dominions^ requiring and commanding
him to confirm the faid eleiiion, and to invefi and confer ate
the perfon fo elected to the ojffice and dignity that he is elected
zmtOy and to give and ufe to him all fuch benediSiions ceremo^
\ nies and other things requifite for the fame, without fuing to
I the fee of Rome in that behalf: And if the perfon be eleSied to
the dignity of an archbijhop, then the king Jhall fo fignify the
\ faid eleiiion to one archbijhop and two other bijhops, or elfe to
j four h'ljhops within this realm or in any other the king's domi^
nions, requiring and commanding them with all fpeed and ce-
lerity to confirm the faid^jleSfion, and to invefi and confer ate
the faid perfon fo ele^ed to the office and dignity that he is
eleSied unto, and to give and ufe to him fuch pall benedi^iom
I ceremonies and all other things requifite for the fame, without
I fuing to the fee of Rome in that behalf 25 H. 8. c 20. f. 5.

Such oath and fealty only to the king] Inftead of this, be-

[ fore the reformation, an oath was taken to the pope and

I! fee of Rome ; in thefe words, " I John, bifliop of P.

** from this hour forward {hall be faithful and obedient

" to St. Peter, and to the holy church of Rome, and to

*' my lord the pope and his fuccefTors canonically entring.

*' I (hall not be of counfel nor confent, that they fhall

*' lofe either life or member, or (hall be taken, or fuffcr

'' any violence or any wrong by any means. Their

N 3 ^' counicl

1 82 JBia)0p5i

•^ counfei to me credited by them, their mefTengers or
<' letters, I fhall not willingly difcover to any perfon,
^' The papacy of Rome, the rules of the holy fathers,
«« and the regality of St. Peter, I fhall help and maintain
*' and defend againft all men. The legate of the fee
*' apoftolick, going and coming, I fhall honourably en-
^' treat. The rights, honours, privileges, and authori-
*' ties of the church of Rome, and of the pope and his
*' fuccelTors, I fhall caufe to be conferved, defended, aug-
'* mented and promoted. I fhall not be in council, treaty,
*' or any adt in the which any thing fhall be imagined
*^ againfl him or the church of Rome, their rights, feats,
*' honours, or powers. And if I know any fuch to be
*' moved or compafled, I fhall refift it to my power, and
*' as foon as I can, I fliall advertife him, or fuch as may
*' give him knowledge. The rules of the holy fathers,
^^ the decrees, ordinances, fentences, difpofitions, refer-
*^ vations, provifions, and commandments apoftolick, to
*' my power I fhall keep, and caufe to be kept of others.
'' Hereticks, fchifmaticks, and rebels to our holy father
«' and his fucceflbrs, I fhall refifl and perfecute to my
*' power. I fhall come to the fynod when I am called,
'^ except I be letted by a canonical impediment. The
*' threfholds of the apoftles I fhall vifit yearly perfonally,
*' or by my deputy. I fhall not alienate or fell my pof-
*' feflions without the pope's counfei. So god help me
*' and the holy evangeliils." i Burnet's Hiji» Reform,
123.

It is true an oath was alfo taken to the king, which
had a fhew of qualifying the oath to the pope; beginning
thus, ^* I John, bifhop of P. utterly renounce and clearly
*< forfake all fuch claufes, words, fentences, and grants,
*' which I have or fhall have hereafter of the pope's
*« holinefs, of or for the bifhoprick of P. that in any
*' wife hath been, is, or hereafter may be, hurtful or
** prejudicial to your highnefs, your heirs, fucceflbrs,
<' dignity, privilege, or eflate royal." And the refl is an
oath of obedience to the king in temporal matters.) \
Burnet's Htji. Rcfor?n, 124.

And the inconfiftcncy of thefe two engagements feems
to be what Wm. Rufus declared in his time, in the cafe
of archbifhop Anfclm ; that he could not poflibJy obferve
at the fame time both the fidelity which he owed to him^
and his obedience to, the apoftolick fee. Gibf, 117,

Four bi/hops] That is, four at the leafl. Gilf. iii.

Pall]

mHjaps. 183

pain So that the form of confecrating according to the
Roman pontifical (tho' without bulls from Rome) feenis
to have continued after the making of this aft, viz. all
Henry the eighth's reign, and till the eftablifhment of the
new form in the third year of Ed. 6. Gihf no.

14. The method and order of confirmation will be bcft Confi-maticn,
underftood by a brief account of the feveral inllruments
exhibited and applied in the courfe of it :

(i) The king's letters patents; by which the royal
aflent to the eledion is fignified, and the archbifhop re-
quired to proceed to confirmation.

(2) A citation againlt oppofers ; which (the time of
confirmation being firft fixed) is publiflied and fet up, by
order and in the name of the archbifiiop, at the church
where k is to be held ; as well to notify the day of con-
firmation, as to cite all oppofers (if any there be) who
will objedt againft the faid eleftion, or the perfon elefted,
to appear on that day ; according to the dirciSlion of the
ancient canon law.

(3) The certificate or return made by the proper oiK-
cer to the archbifhop, of the due execution of the faid
citation.

(4) The commiifion to confirm ; which is ufually per-
formed by the archbifhop's vicar general.

(5) The proxy of the dean and chapter; by which
one or more perfons are delegated by the dean and chapter
eledling, not only to prefent in their names the inftru^
ment of eleftion to the bifhop elected to obtain his con-
fent, and to prefent the letters certificatory of ele6lion to
the king and to pray the royal afient in order to confirm-
ation ; but alfo at the time of confirmation (the faid letr-
ters patents and commiflion to exhibit fuch his proxy
being firft read), in virtue thereof to prefent the bifhop
clefted to the archbifhop, vicar general, or furrogate ;
and in the courfe of the confirmation, to do whatever elfe
is necefTary to be done on the part of the dean and
chapter.

(6) The firfl fchedule : The faid pro<3:or, in the name
of the dean and chapter, exhibiting the citation and re-^
turn abovementioned, prays that the oppofers (if any be)
jiot appearing, may be pronounced contumacious, and
precluded from further oppofition, and that the confirm-
ation may be proceeded in ^ which is accordingly done by
|his fchedule.

(7) A fummary petition : This is the petition of tho
faid prodlor, that the bifhop eledt may be confirmed, upon

N 4 his

1 84 BiCl^OpS.

his alleclging and proving the regularity of the election,
and the merits of the perfon eleded : which he doth in
nine articles ; fetting forth, Firft, that the fee was va*
cant, and had been vacant for fome time. Secondly,
that the dean and chapter, having firft defired and obtained
the royal licence, appointed a day for eledlion, and duly
fummoned all perfons concerned. Thirdly, that on that
day, they unanimoufiy chofe the perfon now to be con^
firmed. Fourthly, that the ele6lion was duly publifhed
and declared to the clergy and people there aflembled. ^
Fifthly, that at the requeft of the dean and chapter, the
perfon fo elecSled gave his confentto the election. Sixth-
ly, that the perfon elefted is fufficiently qualified by age,
knowledge, learning, orders, fobriety, condition, fidelity
to the king, and piety. Seventhly, that the dean and
chapter, under their feal, intimated the election, and the
name of the perfon eledtqxl to the king. Eighthly, that
the king had given the royal afient. Ninthly, that he
had, by his letters patents, required tjie perfon eledled to
be confirmed.

All which articles conclude with a petition, that in
purfuance of the premifTes, confirmation may be decreed.
Then the fummary petition is admitted, and the court
decrees to proceed thereupon, and ajGTign him a term im-
mediate, to prove the particular matters contained in the
petition ; for proof of which, he exhibits the procefs pf
the election made by the dean and chapter, the confent of
the archbifhop or bifliop, and the royal aflent ; and then
prays a time to be prefently afligned for final fentence 5
which is decreed accordingly.

(8) The fecond fchedule : Before fentence, a fecond
prjeconization of the oppofers (if any be) h made at the
fore-door of the church, and (none appearing) they are
declared contumacious, by a fecond fchedule.

But if any appear, it feemeth that they (hall be admitted
to make their exceptions in d^e form of law. To which
purpofe, a pafiagc in Collier's ecclcfiaflical hiftory. Vol. 2.
page 745. is applicable. " Soon after the rccefs of the
parliament, bifhop Laud was tranflated from Path and
Wells to London, and Mountague promoted to the fee
of Chicheiler. Before he was confecrated, an unexpected
rub was thrown in the way. At the confirmation of bi-
fhrps there is publick notice given, that if any perfons
can object either againfi: the party elected, or the legality
of the election, they arc to appear and offer their excep-
tions at the day prefixed. 'Fhis intimation being given,
4 one

Bia)ops» 185

one Jones, a bookfeller, attended with the mob, appcar-
ino^ at the confirmation, excepted againft Mountague, as
a perfon unqualified for the epifcopal dignity. And to
be fomewhat particular, he charged him with popery,
arminianifm, and other heterodoxies, for which his books
had been cenfured in the former parliament. But Dr
Rives, who then officiated for Brent the vicar general,
difappointed this challenge. For Jones had made fome
material omiifions in the manner^ and not offered his ob-
je61:ions in form of law. Particularly, the exceptions
were neither given in writing, nor figned by an advocate,
nor prefented by any pro^lor of the court. Upon the
failure of thefe circumflances, the confirmation went on."
The parliament, not at firfl apprized in point of form,
were difTatisfied with the conduct of the vicar general,
and inquired into the behaviour of Dr Rives on that oc-

cafion. Upon which it hath been obferved. That Dr

Rives, a moft eminent civilian and canonifl, admitted
that the oppofition was good and valid, had it been le-
gally offered ; And that the parliament of that time pro-
ceeded upon the fame opinion.

(9) The oaths : Thefe are four in number; two (viz.
the oaths of allegiance and fupremacy), in conformity to
the ftatutes of the realm ; and two others (viz. the oath
of fimony and of obedience to the archbifhop), in con-
formity to the rules and canons of the church.

(ip) The definitive fentence, or the acSl of confirm-
ation ; by which the judge committeth to the bifhop
elected, the care governance and adminiflration of the
fpiritualties ; and then decrees him to be inftalled or in-
thronized. Gibf, no, in. God, 25, 26,27.

And this is performed (in the province of Canterbury)
by mandate from the archbifhop to the archdeacon of
Canterbury ; to whorrt^the right of inftalling the bifhops
of that province hath anciently belonged, and doth ftill
belong. Gibf. 118.

(11) Finally, a publick notary, jjy the archdeacon's
command, records the whole matter of fa61: in this affair,
in an inftrument to remain as authentick to pofterity.
God. 27.

After ele£lion and confirmation, and not before, the
bifhop is fully invefled to exercife all fpiritual jurifdidlion,
Gibf. 114. But he may not fue for his temporalties till
^fter confccration. IVatf. c. 40. />. 423.

15. Upon

i86 Bl[fl)OpS*

Confecration. 15- Upon a tranjlation; all the aforefaid ceremonies are

obfefved : but confecration in that cafe is not requifite,
becaufe the bifhop was confecrated before. God, 29,.
Gibf, III. But in the cafe of creation^ the procefs goeth
on as followeth :

The confecration ihall always be performed upon fomd
funday or holiday. Form of confecr.

As to the place of confecration ; the dean and chapter
of Canterbury claim it as an ancient right of that church,
that every bifhop of the province is to be confecrated in
it, or the archbifhop to receive from them a licence to
confecrate el fe where. And we are afTured, that a long
fucceffion of licences to that purpofe are regularly entred
in the regiftry of that church. And altho* between the
years 1235 and 1300, that point was controverted with
the chapter, it ended in their favour and in the further
confirmation of the privilege, which was firfl granted by
Thomas Becket, and afterwards confirmed by St Edmund,
And in Cranmer's regifler there is a memorandum, that
no bifhop may be confecrated without the church of
Canterbury, but by the fpecial licence of the dean and
chapter of Canterbury under the chapter feal. Gibf,
III.

In order for confecration, the archbifhop (or feme other
bifhop appointed) fhall begin the communion fervice :
another bifhop fhall read the epiflle : and another bifl\op
fhall read the gofpel. And after the nicene creed and
fermon, the eleSed bifhop, veiled with his rochet, fhall
be prefented by two bifhops unto the archbifliop of that
province, or to fome other bifhop appointed by lawful
comrniffion. Form of confecr.

Then fhall the archbifhop demand the king's mandate
for the confecration, and caufe it to be read (as in times
pafl the pope's mandate was in like manner demanded, as
Is required in the pontifical). Form of confecr.

And the oaths of allegiance and fupremacy fhall be
miniflred to the perfons elected. Form of confecr. i Will,
c, 8.

And then fhall alfo be miniftred unto them the oath
of due obedience to the archbifhop, as followeth : " \\\
*' the name of god, amen. I N. chofen biibop of the
*' church and fee of P. do profefs and promife all due
*' reverence and obedience to the archbifhop, and to the
" metropolitical church of C. and to their fucceflbrs : fq
<' help me god, thro' Jefus Chrifl."-— But this oath fhall
not be made at the confecration of an archbifhop. Forrr^
-y confecr.

' J6<(^dpS. 187

7*5 the archhifoop and to the metropollttcal churchl That is,
, cither when the fee is full ; or elfe in the vacation, when
\ the whole archiepifcopal jurifdidlion is vefted in the dean
' and chapter. Gibf, 117.

Then after divers queftions and anfwcrs touching the
epifcopal office, and before the adl of confecration ; the
bifhop eled fhail put on the reft of the epifcopal habit.
' Form of confecr,

i According to the office in the 3 Ed. 6. the pajloraljlaff
was delivered to the bifhop ; which delivery in the Roman
■ pontifical is preceded by a confecration of the ftafF; and
I followed by the confecration and putting on of a rlng^ in
I token of his marriage to the church ; and of a mitre as an
: helmet of ftrength and falvation, that his face being
' adorned, and his head (as it were) armed with the horns
- of both teftaments, may appear terrible to the adverfaries
• of the truth, as alfo in imitation of the ornaments of
Mofes and Aaron ; and of gloves^ in token of clean hands
. and heart to be preferved by him. All which, and many
other like ceremonies, our church hath laid afide ; retain-
ing only fuch as are moft ancient and moft grave. Gthf.
118.

But at the end of the common prayer book eftablifhed
by parliament in the fecond year of Edward the fixth, it
is ordered, that whenfoever the bifhop fhall celebrate the
holy communion, or exercife any other publick admini-
ftration ; he fhall have upon him, befides his rochet, a
furplice or alb, and a cope or veftment, and alfo his pafto-
r^l ftafF in his hand, or elfe born or holden by his chap-
lain.

And in the rubrick before the common prayer in our
prefent liturgy, it is ordered, that fuch ornaments of the
church, and of the mii\iiters thereof at all times of their
miniftration, fhall be retained and be in ufe, as were in
this church of England by the authority of parliament, in
the fecond year of the reign of king Edward the fixth.

And if any archbijhop or bijhopy after fuch eleSiton^ nomi^
nation or prefentation^ jhall be Jtgnified unto them by the king^s
letters patents^ Jhall refufe and do not confirm^ inveji and con^
fecrate with all due circwnfiance as aforefaid^ within twenty
days next after the kings letters patents of fuch fignification or
prefentation Jhall come to their hands \ or if any of them^ or
any other perfon or perfons^ admit or do any other thing contra^
ry to the Jlatute of the 25 H. 8. c. 20. in fuch cafe every
perfon fo offending^ their aiders^ founfellors and abettors^ Jhall
incur a praemunire, f. 7.

1 88 JBl'(l)0p5»

By the eighth Canon : Whoever fiiall affirm or teach,
that the form and manner of making and confecrating
biftiops, priefts and deacons, containeth any thing in it
that is repugnant to the word of god ; or that they who
are made bifhops priefts or deacons in that form are not
lawfully made, nor ought to be accounted either by them-
felves or others to be truly either bifhops priefts or deacons,
until they have fome other calling to thofe divine offices ;
let him be excommunicated ipfo fadlo, not to be reftored
until he repent, and publickly revoke fuch his wicked
errors.

And by the thirty fixth, of the thirty nine Articles :
The book of confecration of archbifhops and bifhops and
ordering of priefts and deacons, lately fet forth in the
time of Edward the fixth, and confirmed at the fame time
by authority of parliament, doth contain all things ne-
cefTary to fuch confecrating and ordering; neither hath
it any thing that of itfelf is fuperftitious and ungodly.
And therefore whofoever are confecrated or ordered ac-
cording to the rites of that book, fince the fecond year of
the forenamed king Edward unto this time, or hereafter
ihall be confecrated or ordered according to the fame
rites 5 we decree all fuch to be rightly orderly and law-
fully confecrated and ordered.

And by the a£t of uniformity in the 13 & 14 C. 2.
Jll fubfcriptions to be made unto the thirty nine articles^ Jhall
be conjlrued to extend {touching the f aid thirty fixth article) to
the hook coTitaining the form and manner of making ordaining
end confecrating of biJ})ops priefls and deacons in this f aid a£i
mentioned^ as the fame did heretofore extend unto the book fet
forth in the time of king Edward theftxth, 13 & 14 C. 2.
C.4. f. 30, 31.

When a bifliop is tranfatcd\ the former fee is not void
by the election to the new one, until the election is con^
firmed by the archbifhop ; for though he is ele£led, yet it
may happen that the king fliall not confent, or the arch-
bifhop may not confirm ; and it is not reafonable that the
bifhop fhould lofe his former preferment, till he hath ob-
tained a new one : And fo it is in cafe of creation ; he h
not compleatly bifliop till confecration. 3 Salk. 72.

And the dignities or benefices which a bifhop was pof-
fefTed of before his election, become not void till after
confecration in the cafe of creation ; and after confirma-
tion, in the cafe of trandation. Upon which foundation
it was, that all the judges agreed, in the cafe of ^-z;^;:;
and Afcuithy M. 3 Car^ that if a commendam retiner^
.•^ comes,

muMS* 189

comes, in the former cafe before confecration, and in
the latter cafe before confirmation, it comes in time
enough ; becaufe it comes, while the bifhop is in poflef-
fion of the dignity or benefice granted in commendam.
Palm, 470, 475. ^. Jones 162. Gibf, 114.

16. Every perfon being chofen ele^ed nominated prefented inftzMzxiomnA
invejled and confecrated as aforefaid^ and fuing their temporal- reftitution of the
ties out of the king's hands ^ and making oath to the king and /|,^«"*P<»'**t»"'
none other as aforefaid^ jhall and may he thrononized or in*

\ Jl ailed as the cafe Jhall require % and Jhall have and take their
only reflitution out of the king's hands^ of all the poffejftons and
profits fpiritual and temporal belonging to fuch archbijhoprick
or bijhoprick^ and Jhall be obeyed in all things according to the
name title degree and dignity that they Jhall be chofen or prefent-
ed tOy and do and execute in every thing touching the fame ^ as
any archhijhop or bijhop of this realm without offending of
the prerogative royal of the crown and the laws and cujloms of
the realm might at any time heretofore do, 25 H, 8. c, 20.
f. 6.

Whereupon, the bifhop being introduced into the
king's prefence, fhall do his homage for his temporalties
or barony ; by kneeling down, and putting his hands
between the hands of the king, fitting in his chair of
ftate, and by taking a folemn oath to be true and faithful
to his majefty, and that he holds his temporalties of him.
God, 27.

17. Finally; By the i G, fi, 2. c, 13. and 9 G, 2. Oaths.
c, 26. he fhall within fix months after his admiffion, take
the oaths of allegiance, fupremacy, and abjuration, in
one of the courts at Weflminfler, or at the quarter fef-
fions of the peace.

1 8 The fees of the whole procefs, from firfl to laft. Fees.
are faid to amount to ^out 600 1.

19. He- fhall alfo compound for and pay his firft fruits ; Firft fruits.
as is fet forth in the title Jfirft fCUlt^ anil tentljS^

20. Upon promotion of any perfon to a bifhoprick, Benefice or dig-
the king hath a right to prefent to fuch benefices or dig- ",!^V^*"»' ^^.
nities, as the perfon was poflefTed of before fuch promo- motiop.^^ ' ^'
tion ; though the advowfon belongeth to a common per-
fon. And this right of prefenting upon promotion by the
king, as making the avoidance which would not other-
wife happen, did fpring from the practice of the popes,
and is now an uncontefted right of the crown ; and hath
been eftablifhed not only by long practice, but by many
judgments upon full and folemn hearings. Gibf 763.

But

I90 mo^opsx I

But in Ireland, the law is, that a man fliall not be m
promoted to a bifhoprick there, until he hath refigned all
his preferments in England ; by which refignation it feem-
eth that the king's prefentation in fuch cafe is defeated.

III. Concerning refidence at their cathedrals^

1. Langton, Bifhops fhall be at their cathedrals, on
fome of the greater feafts, and at leaft in fome part of
lent, as they fhall find expedient for their foul's health.
Lind, 130.

2. Langton, Bifhops fhall have honefl eleemofynaries ;
fhall keep hofpitality, and hear the caufes of the poor.
Lind, 67.

3. Otho, Bifhops fhall abide at their cathedral churches,
and officiate on the chief feflivals, and on the lord's days,
and in lent, and in advent : and fhall vifit their diocefes
at fit feafons ; correfting and reforming the churches,
and confecrating, and fowing the word of life in the
lord's foil. Athon, 55.

4. Othobon, Bifhops fhall be perfonally refident, to
take care of the flock committed to their charge, and for
the comfort of the churches efpoufed to them ; efpecially
on folemn days, in lent, and advent : unlefs their abfence
is required by their fuperiors, or for other jufl caufe.
(That is, by their fuperiors, either ecclefiaflical or fecu-
lar.) Athon, 118.

IV. Concerning their attendance in parliament.

Blffiops, lords !• ^y the above recited flatute of the 25 H* 8. c, 20.
^f parliament, a bifhop upon his eleiition fhall be reputed and taken as

lord eleSied, And by divers other flatutes, bifhops are

called peers of the land; one of the three ejiates of the realm ;

one of the greateji eftates of the realm; and the like.

25 Ed, '^.Ji. 3. c, 6. I El. c. 3. 8 EL c. I. 4 I?7^. I.
Howfaranaft ^' As to their right in general to fit and vote in par-
made without liament ; this hath been carried fo far by fome, that they
the bifhops, is j^^ve afTcrted, that an aft made in parliament, where the
^''^ ' bifhops have not been prefent, is not good. But this,,

lord Coke feemeth to have fet in a proper and clear light.
There are divers afts of parliament, fays he, which

appear to have been made by the king, lords temporal,
• and commons, without the lords fpiritual ; and it hath

Ijeen objefted, fhat fuch are no afts of parliament ; and

for authority, the roll of parliament in the 21 R, 2. is
2 ' cited.

Cited, where it is faid, that divers judgments were here-
tofore undone, for that the clergy were not prefent. To
this fome have anfwered, that a parliament may be holden
by the king, the nobles, and commons, and never call ,
the prelates to it. But we hold the contrary to both
thefe, and fhall make it manifeft by records of parliament ;
firft, that the bifhops ought to be called to parliament ;
and then fecondly, we fhall fhew, where adls of parlia-
ment are good without them.

To the firft. Every bifhop hath a barony, in refpe6t
whereof, according to the law and cuftom of parliament,
he ought to be fummoned to the parliament, as well as
any of the nobles of the realm.

To the fecond, if they voluntarily abfent themfelves,
then may the king the nobles and commons make an aft
of parliament without them ; as where any offender is to
be attainted of high treafon or felony, and the bifhops
abfent themfelves, and the ad proceeds, the adl: is good
and perfect.

Likewife, if they be prefent, and refufe to give any
voices, and the a(S: proceeds, the aft of parliament is
good without them.

Alfo, where the voices in parliament ought to be abfo-
lute, either in the affirmative or negative, and they give
their voices with limitation or condition, and the aft pro-
ceeds, the aft is good ; for their conditional voices are no
voices.

Of every of thefe we will produce examples out of the
records and rolls of parliament.

At a parliament holden in the 15 Ed. 2. the prelates
counts barons and commons of the realm do charge Hugh
Spencer the father earl of Winchefler, and Hugh Spencer
the fon earl of Gloce^r, v^^ith many high and heinous
offences, as by the aft called exilium Plugonis Lefpencer
patris et filii doth appear ; and the earls and barons, peers
of the realm, in the prefence of the king pronounce
judgment againft them, as by the faid aft appeareth : And
after, at a parliament holden at York, the faid judgment
and attainder againft them (by the king's exorbitant fa-
vour towards them, whofe favourites they were) was ad-
nulled ; and one of the caufes was, for that the faid judg-
ment was given without the prelates : Whereas the fame
being an aft of parliament, was entred into the parliament
rolls as other afts of parliament were ; and the confent of
the prelates doth manifeftly appear, for that they were
parties to the charge. And after, it was adjudged by the

authority

192 BtC^Opi^.

authority of parliament, by the i Ed, 3. c, i, that fhe
faid judgment againft them was good, and they con-
firmed the fame.

At the pailiament holden in the third year of kin^
Richard the fecond, a bill was exhibited againft the clergy
with many bitter words, for the ill difpofing of the dig-
nities, offices, parfonages, canonries, prebends, and other _
benefices, whereof they were patrons, and which were
in their gift, whereof many inconveniences followed;'
the bifhops and other prelates taking great offence at this
bill, abfented themfelves : whereupon the king, upon
the complaint of his commons, by the advice and con-*
fent of all the lords temporal, pafTed the bill.

In the fame parliament great complaint was made of
the extortions committed by the bifhops and their officers ;
and thereupon a bill was framed, that juftices of the pcace^
might enquire thereof, and a form of a commiffion defired '
to be enadted. The prelates and clergy made their pro-
teftation exprefsly againft the faid bill, as tending to the
blemifhing of the liberty of the church. Whereunto it
was replied for the king, that neither for their faid pro*
teftation, nor other words in their behalf, the king would
not ftay to grant to his juftices in that cafe and all other'
cafes, as was ufed to be done in times paft, and as he waS'
bound to do by virtue of his oath made at his coronation. ^
Whereupon the a6l and form of a commiffion palFed as*'
was defired.

At a parliament holden in the eleventh year of Richard"'
the fecond, in the beginning of that parliament holden irt
that year, the archbifhop of Canterbury made openly in
the parliament a folemn proteftation for himfelf and the
whole clergy of his province, which he defired might be
entred ; and fo it was : the efFe<Sl whereof was, that albeit
they might lawfully be prefent in all parliaments, yet for
that in this parliament matters of treafon were to be treat-
ed of, whereat by the canonical law they ought not to be
prefent, they therefore abfented themfelves, faving their
liberties therein otherwife. The like proteftation did the
bifhops of Durefme and Carlifle make. At which pdrlia- '
ment divers ftatutcs were made nothing concerning life of
member ; as the fcventh chapter concerning merchants,"
the eighth chapter touching annuities, and the ninth
chapter againft new impofitions, the eleventh concerning"
keeping of affizes, and the like, all which were gootti
and perfect ftatutcs, and yet the prelates aflented xUJtf
to them. r^t

. . At

B<(^opg. 193

At the parliament holden in the thirteenth year of
Richard the fecond ; when the two bills were read, the
one intitled a confirmation of the Jiatute ofprovifors^ and the:.
forfeiture of him that accepteth a benefice againjl that ftatute^
the other intitled the penalty of him that bringeth in a fum^
mons or fentence of excommunication of the pope againjl any
perfon upon the Jiatute ofprovifors^ and of a prelate executing
ity both which bills tended to rellrain the pope's autho-
rity, which he claimed in difpofing of eccleliaflical pro-
motions within this realm : the archbifhops of Canterbury
and York, for the whole clergy of their provinces, made
their folemn proteftations in open parliament, that they
in no wife meant or would aflent to any ftatute or law
in reftraint of the pope's authority, but utterly withftood
the fame ; the which their proteftations at their requefts
were inrolled : and yet both bills paffed, by the king
lords and commons.

By a ftatute in the fixth year of Henry the fixth, it
was enacted, by the king, lords temporal, and commons;
that no man (hould contradl or marry himfelf to any queen
of England (being the widow of a king, 2 /«/?. 18.) with-
out the fpecial licence and afient of, the king, on pain
to lofe all his goods and lands. The bifhops and clergy
being prefent aflented to this bill, as far forth as the fame
fwerved not from the law of god and of the church, and
fo as the fame imported no deadly fin. This was holden
no aflent; and therefore it was enabled by the king,
lords temporal, and commons ; and fo fpecially entred,
omitting the prelates.

And then, fpeaking of the ftatute of the 35^^. i. D^
afportatis religioforum^ which is a ftatute fpecially entred to
have been made by the king the lords temporal and com-
mons (omitting the pr^atesj ; it muft be intended, he
fays, that the bifhops abfented themfelves ; or if they
were prefent, protefted againft it, or gave fuch voices as
were againft the law and cuftom of parliament : And
this fame a(El of the 35 Ed. 1. in letters patents made
within eight years after, is affirmed to be an a«5l of
parliament; and by feveral fubfequent adls of parlia-
ment is holden for an adt of parliament. 2 In/l, 585,
586, 587.

3. Concerning the point, whether they fit in parlia- whether rhey
ment in their temporal capacity only, by reafon of their ?^'fP^'^'^"''"^?

,, . *^ ,*,.<^..^,-' . ,^ in their temporal

temporal baronies ; or in their fpiritual capacity alio, as capacity only.
biihops ; the fubftancc of what hath been faid feemeth to
be as followeth :
Vol. I. O Lord

194- B((l)OpS.

Lord Coke faith j The lords fpiritual, viz, archbifhops
and biihops, being 24 in number, fit in parliament by
fucceiTion, in refpe£l of their counties, or baronies parcel^
of their bifhopricks. And every one of thefe, when any.
p^rlianiient is to be holden, ought ex debito juftitiae to»
hayj^ > wt\t of fummons. And they may make their ;
proJ^y as other lords of parliament, i Injl, 97, 4 Ifift^p^
I, la.

And again ; Every archbifhoprick and bifhoprick in.
England are of the king's foundation, and holden of the'
king per baroniam ; and in this right the archbifhops and^
bifhops are lords of parliament ; and this is a right of greatf
honour that the church now hath. 2 Infl, 3. •: ,,-

And this, faith Dr. Gibfon^ is true ; but not the whole,
truth. For, altho' their baronies did put them more un-rj
der the power of the king, and under a ftridler obligation^
to attend ; yet, long before William the conqueror chang-^^
ed bifhopricks into baronies, they were, as bifhops, mem-,
bers of the mycel-fynod or witena-gemoty which was the
great council of the land. And an argument of their^
Spiritual capacity in parliament, is, that from the reign-
of Edward the firft to Edward the fourth inclufLve, as»
appears by the records, great numbers of writs to attend^
the parliament, were fent to the guardians of tin fplrhual-
iles^ during the vacancies of bifhopricks, or while the bi-^
fhops were in foreign parts. The writs of fummons alfaj;
preferve the diftindlion of prelati and magnates j and where-^
as temporal lords are required to appear injjde et UgeantiaL
in the writs to the bifhops the word ligeaniia is left out^
and the command to appear is in fide et dileSlione, GibL
J27. Seld.' Tit. of Hon. 575. ,

And in 3 Salk. 73. it is faid, that bifhops did fil;
and had a vote in parliament, in the time of the Saxons ij
but it was not in refpedt of any barony, but by a perfo-
nal privilege, as they were bifhops : for they were not
barons until the Norman reign ; for in the reign of the
Saxons, they were free from all fcrvices and payments,
excepting only to caflles, bridges, [and, as it fhould
have been added, expeditions ;] but William the con-
queror deprived them of this exemption, and inflcad
thereof turned their poflcilions into baronies, and made
them fubjc6l to the tenures and duty of knights fer-.
vice. ^

Unto all which may be added, what lord Hale deli*
vers, ill a manufcript trcatife touching the right of tb^
crown, as fct fortli by the very Icai'ned Dr Jf'urburton bi^

Bttl)Op«f« 195

fliop of Gloucefter, in his " Alliance between church

ahd ftate," p. 131. as follows : The bifhops fit in

the houfe of peers, by ufage and cuftom ; which I there-
fore call ufage, becaufe they had it not by exprefs char-
ter, for then we fhould find fome. Neither had they it
by tenure; for, regularly, their tenure was in free-alms,
and not per baroniani : and therefore it is clear, they
were not barons in refpedl of their poflefTions, but their
polfeflions were called baronies, becaufe they were the
poffeflions of cuftomary barons. Befides, it is evident,
that the writ of fummons ufually went ele^o et confinnato^
before any reftitution of the temporalties ; fo that their
pofTeifions were not :he caufe of their fummons. Nei-
ther are they barons by prdfcription j for it is evident,
that as well the lately erecSted bifhops, as Gloucefter,
OxOn, &c. had voice in parliament, and yet eredled with-
in time of memory, and without any fpecial words in the
erection thereof to intitle them to it. So that it is a pri-
vilege by ufage annexed tp the epifcopal dignity within
ihe realm ; not to their order, which they acquire by con-
fecration \ nor to their perfons, for in refpe£l to their per-
fons,*'they are not barons, nor to be tried as barons, but
to'their incorporation and dignity epifcopal.

^. A bifhop confirmed may fit in parliament, as a lord A blfljopmay fit
tHereof. It is laid down by lord Coke^ that a bifhop '" parliament,
lleEt may fo fit; but in the Z2.{z ol Evam and Afcmth^^^^^^] ^^^ ^'
befare mentioned, "Jonei held clearly, that a bifhop can-
not be fummoned to parliament before confirfnation^ with-
out which the cledlion is not compleat. And he adds,
that it T^as well known, that Bancroft^ being tranflated
to the bifhoprick of London could not come to parlia-
ment, before his confirmation. However, if a bifhop
u '\Y come prefently aftor confirmation, and before ho-
mage and reflitution of temporalties ; he comes as foon as
he is invefled with the fpiritualties, and is not of necef-
fity to wait for his temporalties : which is a further ar-
gument of a fpiritual as well as temporal capacity in par-
: ment. Gihf, 129.

5. Bifhops being tranflated^ pay hot new fees, uponBiHiopstranfla*
tlieir being introduced into parliament. This, with ^^^ J^^ [^y ^^^."^^
like order for peers raifed to higher dignities, was mademcnt.
a fhmding rule, when a table of fees was fettled in the
ycfir 1663. ^'¥ 128.

"',6. Anciently, the greatefl part of the bifhopricks in Bifhops place* of
England, had feats (or, as they were commonly called '^'Jf*^°'^^' '^''^'"8
'.'/cvi) in or hear London, hi v/hich thev were refident[n pa^^^^^nt"^*
O 2 during

196 Btt^ops.

during their attendance on parliament, on the court, 6r
fheir own proper occafions ; and during thofe attendan-
ces, they might freely exercife jurifdi£lion in their refpec-
tive places^ as in their own proper diocefes ; and this is
feierred to in the ftatute of the 33 i/. 8. c. 31. for difle-
vering the bifhoprick of Chefter from the archbifhoprick
of Canterbury, in which there is this claufe, " faving to
•'* the bifhop of Chefter and his fucceflbrs, that his houfe
" at Wefton, being within the diocefe of Coventry and
" Litchfield, fhall be accounted and taken to be of hia
** diocefe, and that he being refident in the fame, fhall
*' be taken and accounted as refident in his own diocefe,
^' and for the time of his abode there fhall have jurif-
*' didlion In the fame, likewife as all other bijhops have in
*' the boufes belo7iging to their fees in any other hijhoprick
*' vjtthin this realm for the ti?ne of their abode in the
^' famer

But now moft of thofe houfes are either exchanged,
or (being built into private houfes) are held in leafe of
the^ bifhopricks to which they belonged ; and no houfes,
now remaining, come under the circumftance here men-
tioned (of being a place of refidence, in another diocefe)
but Lambeth houfe and Croydon, belonging to the
archbifhop of Canterbury; Winchefter place, now ire-
moved from Southwark toChelfea; and Ely houfe in
Hoi born. Gibf 132.
Order of their y, Th^ biJhops Jhall ftt in parliament^ on the right ^e of
fi^mng in parha- ^^^ />^r//tf;«f«/ chamber, in this order: Firjl, the archbifhop
of Canterbury ; next to him,, on the fame form, the archbifhop
of York ; then the hijhop of Lo7idon\ then the bifhop of Dun^
ham ; then the bifhop of TVirichcfler ; then all the other bifhops
lifter their ancienties, 31H. 8. c. 10. f. 3.
Whether they 8. By a canon of the council of Toledo, no bifhop, 01*
may vote in cafes ^hbot, or any of the clergy, was to be a judge in cafe oi

of blood. jjf^Qj. jjj^^i^^ ^y^y; ^^^

This canon is faid to have been introduced into Eng-
land by archbifhop Lanfrank ; and confirmed in a fynoa
held at London, and made a flanding rule of the Eng-*
lifh church. Id»

And this the clergy claimed as an exemption and pri-
vilege ; and efteemed their attendance in parliament, ge-
nerally as a badge of ecclefiaftical flavery. Id.

And in the cafe before us, as they did apprehend them-
felves under an indifpenfible obligation to the canon, the
king gave them leave to withdraw: Nevcrthelefs, by the

lith

. I ith conftitution of Clarendon, they were required to be
prefent until judgment was to be given. Id,

Afterwards, by a conftitution of archbiihop Langton,
.it was injoined, that no clergyman fhould exercife fecular
jurifdidlion, efpecially in cafes of blood. Lind, 269.

And by a conftitution of Othobon : — ''In caufes of

^' blood, in which judgment of death or mutilation of

" members is given, we injoin that none of the clergy

^ *' prefume to be a judge or afleflbr ; on pain that befides

*' the fufpenfion from his office which he fhall Ipfo fadto

. •* incur, lie fhall be otherwife punifhed according to tj^e

"♦^ difcretion of his fuperior : from which fentence of fuf-

-,** penfion he fhall in no wife be abfolved, unlefs he firft

" make a competent fatisfa«5lion." Othob, Athon. 92.

And in confequcnce of the aforefaid canons, the arch-
bifhops and bifhops were wont to withdraw, when caufes
of blood were to be heard : with a proteftation neverthe-
lefs, that fuch abfence fhould not be any infringement of
their right to fit and vote in fuch cafes, if the canons
^were out of the queftion^. Gibf, 125.
^'\. And in fa(St, there are feveral inflances, wherein bi-
" Chops did fit and vote, or wherein their right was acknow-
ledged to fit and vote, in like cafes.
'". As in the 4 Ed. 3. Roger de Mortimer, Berisford,
, iWautrevers, and others, were sidjudged tray tors, by bi-
fhops and others in parliament.

In the 15 Ed. 3. Archbifhop Stratford was acquitted
of treafon in parliament, by four earls, four bifhops, and
four barons.

' In the 5 Hen, 4, the commons thank the lords fpiri-
]tual and temporal, for their good and rightful judgment
In freeing the earl of Northumberland.
,^ In the 3 Hen. 5, the commons pray judgment of the
lords fpiritual and temporal on the earl of Cambridge.

In the 5 Hen. 5. Sir John Oldcaftle was attainted of
treafon and herefy, by the lords fpiritual and temporal.

Neverthelefs, lord Coke fays generally, In cafes of
trial for treafon, mifprifion of treafon, or felony ; the
lords fpiritual mufl withdraw, ajid make their proxies.

But Dr. Gibfon obfcrves, that when the bifhops en-
tred their proteftation and withdrew, neither the temporal
nor fpiritual lords underflood them to \>q under any
engagement to withdraw, from any law of the land.
And much lefs^ can it be pretended, he fays, that they
are under any legal obligation in our reformed church;
O 3 fmc©

198 iBi'a)opsv

fmce the canon it felf (fpeaking of the carfdn of the courf-
cil of Toledo) at firft founded in fuperilition, and nd#
probably abolifhed by law, as being to the damage or hurt
of the king's prerogative royal, was difregarded for along
time after the reformation. 'Tis true, in the tumultuous
times of king Charles the firft. This advantage, among
many others, was taken and infilled on, againft the ec-
clefiaftical ftate. But when it came to be a, queilion in
the reign of king Charles the fecond; the moft emi-
nent civilians of that time were advifed with by the
bifhops in convocation, and unanimoufly gave an opi-
nion under their hands, that by their ftaying in the
houfe of lords, while cafes of high treafon where in
agitation there, they were in no danger of irregula-
rity ; which was the ancient penalty anncj^ed to the ca-
non. Gibf. 125.

And Mr Hawkins, fpeaking of this matter, faith thus';
It is agreed, that at a trial before the houfe of peers, every
temporal lord who hath a right to vote in that houie,
hath a right to pafs on fuch trial. But it is faid in the
year book of 10 Ed. 4. 6. that upon the trial of a peer in
parliament, the bifhops fhall make a procurator, becaufe^
they cannot confent to the death of a rrian ; but this fs
■iaid to be wholly grounded oA a canon not in force at
this day; neither do I find (fays he) any precedent where-
in they have been excluded againft their confent, or havij
"withdrawn themfelves without a prbteftation of their right,
or making a proxy; and the judgment againft the Spen-
cers was exprefly reverfed for this reafon among others,
becaufe the bifhops were not prefent ; and in the prece-
dents chiefly infifted on of the other fide, it is not exprefly
faid that they were not prefent, and it doth not clearly
appear, but that they might be included under the word
peers. However it hath been always admitted, that they
have a rij>ht to vote in a bill of attainder; alfo in the
carl of Danby's cafe, they were adjudged by the houfe
of lords to have a right to vote in queftions previous to
the trial of a peer, tho' this was flrongly oppofed by the
houfe of commons. And their right to vote at the trial
it felf, if they think fit, fecms fully implied in the fta-
tute of the 7 IV. c. 3. which ena6leth, that upon the trial
of any peer or peerefs for treafon or mifprifion^ all the peers
tvho have a ri^ht to ft and vote in parliament Jhall be fum-
rnoned twenty days at leaf before every fich trial^ to appear
'at every fuch trials and that every peer fo fummoned an'i
appearing fiall vote in the trials every fuch peer firf ta-
king

BtQ)opst. 199

\img the oath$ tf allegiance and fttpremacyy and fubfiriUfig
U^lnd repeating the declaration again/} popery. 2 Haw. If 2J.
^-But upon this, Sir Michael Fojier (after having itatfi
liie difFerence between a trial before the court of the
iigh fleward, and a trial in full parliament or before t]ie.
king in parliament) obferves as follows: Before this a^
the real mifchief feems to have been, that in the trial of
ti peer in the court of the high fteward, the peers triers
were a feledt number, returned at the nomination of the
high fteward; and the prifoner was in every cafe debar-^
red the benefit of a challenge. This was the real mif-
chief, and it was in many cafes feverely felt. Accord-
ingly the a6l applieth the proper remedy ; for it ena6teth^
*' that upon the trial of a peer, all the peers having
" right to fit and vote in parliament (hall be funimoned
^' twenty days before the trial, to appear and vote at fucb
" trial : And every peer fo fummoned and appearing fliall
" vote in the trial of fuch peer, having firft taken the

" oaths appointed by the a£t," The next claufe

provideth, " that neither this a£t, nor any thing therein
*' contained, (hall any ways extend, or be conftrued to
** extend, to any impeachment or other proceeding in par-

'' liament in any kind wltaifoeVer.** The words of the

laft claufe are very general, and feem to exclude every
proceeding in full parliament for the trial of a peer ifi
the ordinary courfe of juftice. But that conftru<£tion
was reje^ed in the cafes of the earls of Kihnarmck and
Crotnariiey and of the lord Balmerino^ after the late rebel-
lion. And accordingly all the peers and lords fpiritual
were fummoned. And thofe lords, who appeared having ta-
ken the oaths appointed by the a6t, the bKhops upon the
*day the trial came on^ after making the ufual proteftation
fwithdrew. And the *prifoners before their arraignment
were informed by the high fteward, that they were in-
titled to the benefit of this a6l in its full extent. The
Summoning the lords fpiritual to the trial of thofe lords
>was (Sir Michael fays) he apprehends a prudent caution,
in order to obviate a doubt that might otherwife at that
critical time have arifen from the words of the ftatute,
which (as was before obferved) are very general. But
general as they are, he fays, he doth not conceive that
they made that meafure, tho' extremely prudent, abfolutely
and indifpenfebly neceffary. For general words in a ftatute
muft be controulcd by the apparent intent of the Icgifla-
ture. They muft in conftrudtion be adapted to cafes then
in contemplation, and to every other provif;on in the fta-
tute, fo as to render the whole one uniform confiftcnt
O 4 rule.

209 BidmSi

rule. And now to apply this obfcrvation to tb«

prefent cafe. The adl provideth, that every peer/ fcf
lummoned and appearing fhall vote in the trial. By vor
ting in the trial, muft (he fays, as he apprehends) be
meant voting throughout the trial, voting as a competent-
judge, in every queftion that fhall arife during the trial;
and above all, in the grand queftion for condemnation or
acquittal. Now upon this laft queftion the biftiops can-
not vote. Tho' it hath been refolved, and pra6lice hath
eftablifhed the rule, that in a proceeding in full parlia-
ment in a cafe of blood, they may, if they chufe it, vote
upon all previous queftions. But in a proceeding in the
court of the high fteward, which he conceives this claufe
of the ilatute had principally in contemplation, and to
which no mere fpiritual lord was ever fummoned or could
be, no queftion but for acquittal or condemnation is the
fubje<St of any vote. For in all points of law or pra£tice,
the high fteward gives the rule, as fole judge in the
cqurt. — r- To conclude this head, the a£t may (he fays)
with propriety enough be faid to regulate the pro-
ceeding in both courts, that of the high fteward, and
that in full parliament ; but it doth not alter the na-
ture and conftitiition of either. Confequently, it doth
not give to the lords fpiritual any right in cafes of
blood, which they had not before. Fo/i, Crown Law.

247- J

Whether they 9. Dr. Gthfon faith. The lords fpiritual enjoy the fame
/hall be tried by j^g^j privilcffes (trial by peers excepted, if they have not

the lorc^s in par- ,°,r\i^i il j- ^l

ijament, or by ^bat alfo) that the temporal barons do enjoy ; as to have
■* jury. a day of grace J hunting in the king's forefts j and the

like. Gibf. 133. Tr- per pais. lO.

Sir JVm. Stautidforde faith thus: Ducheftes, countefTes,
and baronefles fhall be tried as peers of the realm ; but
fo fhall not bifhops : for none of the ftatutes relating
thereunto have been put in ure to extend to bifhops, al-
beit they enjoy the name of lords of parliament ; for they
have not this name by reafon of nobility, but by reafoni'
of their office, and have not a place in parliament ir^i
refpe6l of their nobility, but in refpedt of their pof*-'
feffion, viz. the ancient baronies annexed to their digni-
ties. Sta?nf. 153.

Lord Coke faith; every lord of parliament, and that
hath voice in parliament, and is called thereunto by the^
king's writ, fhall not be tried by his peers, but only fuch *
as fit there by reafon of their nobility, as dukes, mar-
qaiffes, counts, vifcountSj or barons 3 and not fuch as are

lor^s

BtOjopgi 20 1

tlvr^s of parliament by teafon of their baronies whicVtbey
hold in the right df the church, as archblfhops and bi-
{hops, and in time paft fome abbots and priors; but they
fhall be tried by the country, that is, by freeholders, for
that they are Tiot of the degree of nobility, i Inft, 31,
3 Inji, 30.

Lord Hale^ in the manufcript before quoted, fays^ that
the bifhops in refpedl of their perfons, are not barons,
nor to be tried as barons.

And the late Mr Madox^ in a manufcript now in the
Britifh Mufaeum, concerning the Antiquity of pajfmg bills
in parliament^ fpeaking of this matter of biihops, fays, that
out of parliament, their honour not being inheritable,
they are to be tried by ordinary freeholders.

On the other hand, Mr Hawkins obferves as follows :
It is faid by Staundforde and Coke, that thofe who are
lords of parliament, not in refpe£l of their nobility, but
of their baronies which they hold of the crown, as bifhops
now do, and fome abbots and priors did formerly, aiiB
not within the intent of magna charta, to be tried by the
peers. And Selden feems clear, that this is the only pri-
vilege which bifhops have not in common with other
peers. And thofe who feem mofl for the contrary opi-
nion, admit that the law hath been generally fo taken.
Neither do they produce any precedent, where a bifhop
or abbot hath been tried by the peers upon a commijjioni
but on the contrary admit that there are two precedents
cf their being tried by the country, or a jury. And it is
faid by others, that there are divers precedents of this
kind 5 yet Selden, with his utmoft diligence, feems able
to produce but two, which clearly and fully come up to
his point, viz. thofe of arbhbifhop Cranmer and bifhop
I'ifher. However it feeftis to be agreed, that while the
parliament is fitting, a bifhop fhall be tried by the peers.
2 Haw, 424.

Finally, lord chief baron Gilbert, in his treatife on the
court pf exchequer, page 40, fays thus: " The bifhops
generally claimed an ecclefiaflical privilege, to be tried
only by the archbifhop as their ordinary ; therefore in the
cafe of Mark bifhop of Carlifle, where this challenge
was made of the liberties of the church, and over-ruled,
he did not challenge his peerage. And fo was the cafe
of Fifher, bifhop of Rochefter, in Henry the eighth's
time. For they would not make any challenge to be
tried by their peers 5 for that would have admitted a tem-
poral j urifdidlion. So by non-ufer of any right of being

tried

2 02 IBidmS^

tried by their peers in capital cafes, thefe bijlbops-WJlf"
held per bdraniajn^ and had cortfequently a privilege to^
have fuch a trial, totally lofl the fame, and are tried by
a common jury,"
Bifliops Included - lO. Prelates are included by name in the ftatutei:
in the aas de which give the a6lions de fcajidalis mamatum* 2 R. 2. c. c>

What courts 1 1- None but the king's courts of rccord, as the court

may write to the of common plcas, the king's bench, juftices of gaol deli-
biftarV°andfhl ^'^^7' and the like, can write to the hiftiop to certify ba-
like. flardy, loyalty of matrimony, and tht like ecclefiaflical

TTlatter ; for it is a rule in law, that none but the king
can write to the bifhop to certify, and therefore no infe-
rior court, as London, Norwich, York, or any other ift^
corporation ; but in thofe cafes, the plea muft be remov-
ed into the court of common pleas, and the court muft
write to the bifhop, and then remand the record. And
this was done in refpe£l of the honour and reverence which
the law gave to the bifhop being an ecclefiaflical judg*-,
and a lord of parliament, i Inji, 1 34,

v. Spiritualties of bijhopricks in the time of vatatiM,

tvhat ismfant I. When a bifhop dies, or is tranflated, or is employ-
by guardian of g^j bcyond the feas in negotiations for the fervice of tH«
e pmtua ties. ^^.^^ ^^^ kingdom ; the law takes care to provide a guSa^
dian as to the fpiritual jurifdi6lion, during fuch vacancy
of the fee or remote abfence of the bifhop, to whoin,
prefentations may be made, and by whom inflitutions,
admiflioris, and the like, may be given : And this is
that ccclefiaftical officer, whether he be the archbifliop,
or his vicar general, or deans and chapters, in whom-
foevcr the office refides, him we commpnly call the
guardian of the fpirrtualties. God. Introdi 9. God. 39*.
"Who fTiall be 2. By the canon law, the dean and chapter are guaij-
guardian of the diuns of thc fpiritualtics during the vacancy. And it hatji
ipintuaitKs. ^^^^ allowed, that of common right they are fo at th(s
day in England, and that the archbifhop hath this privi-
lege only by prefcription or compofition. 2 I^jh t^*
IVo^d b. I. c. 3. Jolmf. 56. .1

And divers deans and chapters do challenge this |?y a:(V-
cicnt charters from the kings of this realm. God,^ 29- .i.
■ ••' But now generally here in England, during the vac a r^
of any fee within his province, the archbifhop is guaf^^
, of the fplrituahics (as hath been^ (aid) by prefcription ,<Dr
.'compoiition \ .when by all epifcopal .rights ,4pf. jh,e (jioc^ .

belong

Bitbopg. 203

iclong unto him, and all ecclefiaftical jurifdidlion is ex-
Tcifed by him or his commiffioners, for that time. God,
5^, 42. j^yl. Par erg, 125.

But when an archiepifcopal fee is vacant, the dean and
hapter of his diocefe are guardians of the fpiritualtLes-i.
hat is, the fpiritual jurifdidtion of his province and dio-
cfe is commited to them. God. 41.

And by the 25 H. 8. c, 21. when the fee of the arch-
)i{hoprick of Canterbury is void, the guardian of the fpi-
itualties fhall grant faculties licences and difpenfations
throughout both provinces) as the archbiftiop might ha\'e
ione. / 16.

3. The guardian of the fpiritualties hath all manner His powen,
:)f jurifdi^lion of the courts, as the power of granting
icences to marry, probate of wills, and adminiftration

3f inteftates eftatcs, during fuch vacancy ; and alfo of
granting admiflions and inftitutions : but he cannot
IS fuch, confecrate or ordain, or prefent to vacant
aenciices, or confirm a ieafe. Gnd. 21, 39. Ji'^oirdh. i.

-• 3- -^

4. And he fhall have the perquifites that happen by the And perqulfitcs.

execution of fuch power, until the new elefted bilhop
nay by law execute the fame. TVr*tf. c. 40.

5. After eleftion and confirmation (and not before), "v^'hen his power
the bifhop is fully inverted with a right to exercife "^^"^*

all fpiritual jurifdidtion ; and confequently, then the
power of the guardian of the fpiritualties ccafeth.
Gibf. 114.

VI. Tempor allies of hijhopricks in the time of
vacation,

1. A bifhop's temporalties are all fuch things as thb what i« meant
bifhops have by livery from the king, as caftles ma- ^x temporaUies.
nors lands tenements tithes and fuch other certainties,

of which the king is anfwered during the vacation.
IVatf c. 40.

2. The cuftody of the temporalties of every arch- who hath ttie:
bifhoprick and bifhoprick within the realm, and of <^"^°<^y °'>^^^
fuch abbics and priories, as were of the king's foun- ""'P*'"^^'«-
dation, after the fame became void, belonged to the

Ving during the vacation thereof, by his prerogative :
for as the fpiritualties belonged during that time to the
&t3in and chapter of common right, or to feme other
ecclefiaftical perfon by prefcription or compofition ; fo
the temporalties came to the king, being patron and

pruicclor

204- J6tfl)0pS*

protestor of the church, in fo high a prerogative in*

cident to his crown, as no fubje£t can claim the tempp-

ralties of an archbifhoprick or bifhoprick when they fall,

by grant or prefcription. 2 /«/?. 15. r

Who hath the 3- And Upon the filling of a void bifhoprick, not thue

profits thereof, jjcw biihop, but the king by his prerogative, hath the

*irmg the vaca- i-gmporalties thereof, from the time that the fame became

void, to the time that the new bifhop (hall receive theoi

from the king. Watf, c. 40,

And by the ftatute of the i^ Ed. 2, Ji, i, c. 14. The
kingjhall have ef cheats of lands of the freeholders of archhtjhop
and hijhops^ when fuch tenants be attainted for felony in tirufi
ef vacation^ whil/l their temporalties were in the king*s hands
to give at his pkafure^ faving to fuch prelates the fervice thqt
thereto is due and accuflomed.

Accordingly, the temporalties being in queen EUz^

beth's hands, a copyhold efcheated ; which was grantq^

by the queen, and it was held to be good. E, 42 j^/.

Covert's cafe. Cro, EL 754. .,.^\

Undue fejzing of 4. By the I Ed. 3. ft. 2. c. 2. Becaufe before thti

*u*?^^°'i-'"' time, in the time of king Edward father to the king that now

the bilhop being . ' .. , -^ ., rrr '' r 1 r /-•»•!•

!i?ing, '^9 the king by evil counjellors caujed to be Jeized into h^s

hands the temporalties of divers bijhops^ with all their gQo^
and chattels therein founds without any caufe, and the fame
held in his hands by a long feafon^ and continually thereof totji
the profits^ to the great damage of the fame bijhops^ ivafles
and deflruSlions of all their chattels manors parks and VJOods \
the king will and grant eth.^ that from henceforth it Jhall not ie
done.

By the 14 Ed. 3. ft. 4. c. 3. ff^e will and grants that
from henceforth we nor our heirs Jhall not take^ nor caufe toie
taken into our handsj the temporalties of archhijhops brjhops
abbots priors or other people of holy churchy of what ejiate and
condition they be^ without a true and juft caufe, according
to the law of the land^ and judgment thereupon given.

By the 25 Ed. 3. ft. 3. c. 6. Becaufe the temporalties of
'archbiJI)Qps and bi/hops have been oftentimes taken into the king s
handsy for contempts done to him upon writs of quare ndft
admifit, and like wife for divers other caufes^ whereof the prtr
lates have prayed the hing that no fuch taking jhall from henci"
forth be made; the king will and granteth^ that the juflices who
jhall give judgment againfl any prelate in fuch cafe or the like^
Jhall receive for the conte?npt fo judged a reajonahle fine at iBf
. time of the judgment if the party offer the fame ^ or otheriOife cq*
ter the judgment at what time the party will offer himfelf

5. Ranulpl^^

a5<(^opiSf« 205

5. Ranulph, chaplain to king William Rufus, and af- Committing
terwafds by him made biftiop of Durham, was ^ factor ^*^*^? '*"""6tfe«
fbr the king in making merchandize of church livings,
inafmuch as when any archbiftioprick bilhoprick or mo-
naftery became void ; firft, he perfuaded the king to keep
them void a long time, and converted the profits thereof
fometime by letting, and fometime by fale of the fame,
whereby the temporalties were exceedingly wafl:ed and
deftroyed : fecondly, after a long time no man was pre-
ferred to them by delivery of the ring and ftafF, by livery
of feifin, freely, as the old fafhion was, but by bargain
and fale from the king, to him that would give moft ; by
means whereof, the church was fluffed with unworthy
and infufHcient men, 2 Inji, 15.

But by the great charter, 9 H, 3. it is enabled as fol-
lows : ^he guardian^ fo long as he Jhall have the cujiody of
the land of an heir within age^ Jhall keep up the houfes parks
nvarrens ponds fnills and other things pertaining to the fame
land, with the iffiies of the faid land; and he Jhall deliver to
the heir when he cometh to his full age^ all his landflored with
ploughs and all other things^ at the leafl as he received it. All
thefe things Jhall he ohferved in the cufiodies of archbijhopricks
bijhopricks abbeys priories churches and dignities vacant which
appertain unto us s except this, that fuch cujiody Jhall not be
fold. c.5.

Shall not he fold] Fleta faith, that the fame fhall not be
J fold nor let to farm ; yet the king may commit the tem-
poralties of them during the vacation, as by the flatute of
i ,thc \^E4, 3. (hereafter following) doth appear. 2 Injl,

.i.,By the flatute of the 3 Ed. i. c. 21. In right of lands

-of heiri being within age^^ which be in ward of their lords ^ it

i .ij^pfovided^ that the guardians Jhall keep ajid fujlain the landy

, *" without making deJiruSfion of any things and that of fuch

• jnanner of wards Jhall be done in all points as is contained in

. the great charter^ and that it be fo ufed from henceforth. And

'in the fame manner Jhall archbijhopricks bijhopricks abbacies

churches and all fpiritual dignities be kept in time of vacation.

By the 14 Ed. 3. fl. 4. Becaufe that in the petiticmof the

. prelates and clergy it is contained^ that efcheators and other

luipers^ in the time of vacation of archbijhopricks bijhopricks

und other prelacies^ have done great wafte and de(lru£iion ; we

'-yuill and grant, that at all times from henceforth, when fuch

vndances Jhall happen, that our ejchcators and the efcheators of

cur heirs which J'or the time Jhall be, Jhall enter and cavfe to he

2 well

2o6 a5l'fl)0pS»

well-kept tJyf faid voidancesy without doing ivafte or deflruSlion
in the manors warrens parks ponds or woods ; and that they
fell no underwoodsy nor hu?it in the parks or warrenSy nor fifii
in ponds nor free fijhingsy nor jhall rack nor take fines of thi
tenants y free 7ior hond; hut Jhall keep and fave as much as
pertainetb to the faid voidancesy without doing harm or any
manner of opprejfton, Atid if the dean and chapter of churches*
cathedral priors fubpriors prioreffes fuhprioreffes and covenU-
ef prelacies abbies or priories y whofe voidance pertaincth to us
and our heirs y will render to us and our heirs the value of th(
faid voidance y as other will reafonahly yieldy then the chancelkt^
and treafurer Jhall have power to let to them the faid voidancef^
ly good and fujpcient furetyy fo that they Jhall have the fam^ ,
before all other y yielding to us the value of themy according as\
Jhall he found by remembrances of the exchequer y or by inquejt^
to be taken upon the fame if need hcy without making fine^. ^
And in cafe they will not accord to yield to the valucy nor fin4
fuch furety ; then the cha7icellQr and treafurer Jhall caufe to b^
ordained the good prefcrvation of fuch voidances by cfcheators or
other fufficient keepers to anfwer the king of that to him per* I
taineth reafonablyy without doing wafle or defiruSiiony or other
thing which may turn in dijherifon of the churches whereof fuch
voidances Jlmll happen, c. 4.

And we do grant full power to our faid chancellor and trea^

furery which taking to them other of our council fuch as to them

Jhall feem hefl to be taken^ by good information of remembrances

of the exchequer and other informations as to them Jhall feem

hefl Jhall let the vacaticns of archbijhopricks hijhopricks al-

bacies priories and other houfes whofe voidances pertain unto usy

to the dean and chapter prior or fubprior priorefs or fubpriorefs

and covcnty to yield a certain of every voidance by the year

quarter or month during the vacationSy according as to them

Jhall feem befly without tnaking any fine ; fo that no efcheator

nor other minijhry in the time of vocationy Jhall have caufe to

enter or meddle to do any thingy which fall he in prejudice of

the churches^ whereof fuch voidances Jlyali happen : faving to

us and to our heirs, the knights fees, advozifons of churcheSy

efcheatSy ivards, marriagesy reliefs^ and fervices of the faid

fees, c. 5.

Remfdyforthe 6. By the 52 //. 3. c. 28. it is provided, that if any

^""'■^'^' ^-"^ h '^'^^^S^ ^^ ^^ifP^J/^^ ^^ ^^^^^ ^^ abbots priors or ether prelates of

time ot his pre- the churchy and they have furd their right for fuch wrongs,

aeccifor. and he prevented with death before judgment grim therein ;

their fuccej/crs fnall have their affions to demand the goods of

their church out of th hands of fuch trefpafj'ers. Moreover,

the fuccejfors fjall have like a Hi on for fuch things as were lotAy

-i^ with'

mihdretwn hy fuch violence from their houfe and churchy before
he death of their pedeceffors^ iho their faid predecejfors did
^vpurjue thar right during their lives. And if any intrude
tiff the lands or tenements of fuch religious perfons in the timi
f vacation^ of which lands their predeceffors died feifed as in
ht right of their churchy the fucceffors jhall have a writ to re-
yver their feifin. And damages jhall be awarded them^ as in
(fife of novel difleifin is wont to be.

\ It is provided^ There were two mifchiefs at the com-
fiion law (as many did hold ) ; the iirft, that if goods were
;| aken away in the life of the predecc-Tor, after his death
he fucceflor had no remedy for fuch trefpafTes ; and the
)ther mifchief was, that if in time of vacation any intru-
ion were made, the fuccefTor had no remedy to recover
he land with damages, tho' thereof his predeceflbr died
eifed : and both thefe are remedied by this adl. 2 Inf,

i 5^v

' Jhbots priors or other prelates] The word prelates being
)laced after abbots and priors, who are inferior to arch-
>ifhops and bifhops, lord Coke fuppofeth, that thefe laft

!.re not comprehended in this a(Sb, and labours to prove
hat they are not. But Fiizherhcrt is of a contrary opi-
lion, and includes archbifhops and bifliops in the word
relates^ and alfo in the words [of fuch religious perfons] in
i he latter claufe ; and fays, that the bifhop fhall puniih a
I refpafs done in time of vacation of the biihoprick, in
rutting down of trees and the like, for of right the king

I:annot cut fuch trees; but for hunting in Cao. parks,
>r fifhing in the pifcaries, it feemeth the ki-jig ought to
lave the a£lion for the trefpafs done in the time of the
/acancy : But if they do deftroy all the f,ih within the
fifti-pools, or kill all the deer in the parks, in the time
oi the vacancy ; it feemeth reafonable, that by this fta-
tute the fucceflor have an action for fuxh trefpafs. Gibf,

^^' ...

iMtely withdrawn] Yet if the takir.ig of the goods were

Wng before fuch death, the fucceflor fhall have an action
of trefpafs by this ftatute. 2 Injl. 152.
,•-7.- Wiien a new bifhop is made, he may not de jure when the cufto-
b^ore- hifi confecration claim the temporalties of his bi-dy of the tempo-
(hoprick, akho* that ex gratia the king by his letters pa- f^^"" <^"^«t^'»
tents, may grant them unto hi.Ti after his confirmation, and
before his confecratioji, and the grant then made is good :
But after that he is confecvated invefled and inftalled, he
may fue for his temporalrjes out of the king*s hands by a

writ

208 25<C^0pS!»

writ dire<aecl to the efcheator. Yet upon fuch writ, the ;.
temporalties are not de jure to be delivered, until the i
metropolitan hath certified the time of his confecra-
tion, altho' that the freehold of the temporalties be in
him by the confecration. Watf, c. 40.

VIL Archhijhops jurifdi5lion over their provincial
bijhops.

General power j. The archbiftiop hath two concurrent jurifdi(5lions>
•fthearchbilhop.^j^g as ordinary or biftiop within his own diocefe, the
other as fuperintendant throughout his whole province of ,
all ecclefiaftical matters, to correal and fupply the defedls
of other bifhops.
Prefentment ef 2. By a canon of Edmund archbifhop of Canterbury,
liOiOTs There jhall he in every deanry^ two or three men^ having god

before their eyes^ who at the command of the archbijhop or his
official^ Jhall prefent unto them the publick cxcejjes of prelates
(ind other the clergy, Lind. 277.

Two or three men] Which office devolved afterwards
upon the church wardens* Lind, 277.

In every deanry] That is, rural deanry. Id,

His official] Who hath the fame confiftory with the
archbiihop himfelf, at leaft in thofe things which concern,
his metropolitical jurifdidion. Lindw, 277.

Publick excejfes] That is, notorious ; whereof great and
publick inlamy doth arife. Id.

Of the pri*Iates] To wit, biftiops ; who inafmuch as
they are his fuffragans, are fubje6t immediately to the
archbifhop and his official ; and alfo the officials of the
fame bifhops. /d.

And other the clergy] viz. fubje6l to the faid fuffragans.
Id,
ArcUi/hop's vi. 3- If ^^ archbifhvip vifit his inferior bifhop, and inhi-
Lutionof bi- bit him during the viiitation ; if the bifhop hath a title to
^P*" collate to a benefice wixhin his diocefe by reafon of lapfe,

yet the bifhop cannot inflitute his clerk ; but the clerk
ought to be prefented to* the archbifhop, and the arch-
bifhop is to inflitute him, by reafon that during the in-
hibition, the bifhop's power of jurifdidion is fufpended.
God, 19.
Whether he cun 4- There feemeth to be foi.\)e confufion in the books,
proceed to dcpri- conccming the depofing or depriving of a bifhop. The

*atioo. ^ ^j-utli

%ifi)OpS* 209

truth Is, depojlng is one thing, and depfhing h another
thing very different. Depofition implies the taking away,
or putting him from the oiHce itfelf, or degrading him
from the order of biftiop j deprivation only takes from him
the exercife thereof in fuch a particular diocefe, leaving
him ftill bifhop as much as he vi^as before, and only va-
cates his promotion.

As to the former of thefe, the power of depoftng^ Dr
Ayliffe fays, that by a canon of the council of Lateran,
^ifhops cannot be depofed by their metropolitans, without
■■he pope*s leave or licence fo to do; even as a bifhop
: i :annot by his power alone depofe any clerk from his or-
ders, tho he may by himfelf give a perfon orders. JyL
]^^Par€rg. 124.

And Dr Godolphin fays, that the confecration of a
iifliop is charaSfer indelebiru : infomuch that altho' itfhould
b happen, that for fome juft caufe he fhould be deprived
)r removed from the fee, or fufpended ab officio et beneficioy
joth from his fpiritual jurifdi6lion as to the exercife and
JJtecution thereof; and alfo from the temporalties and
JflDfits of the bifhoprick ; yet he ftiil retains the tide of
I bifhop, for that it is fuppofed the order it felf cannot
ibfolutely be taken from him. God. Rep. Ca?t. 49.

But as to deprivation, Dr Aylifie fays, that in England,
m archblfhop may deprive a bifhop, if his crime deferves
o fevere a punifhment ; and that it is faid in the canon
aw, that a bifhop who is unprofitable to his diocefe ought
:p,be deprived, and no coadjutor affigned him, nor fhall
le be reflored again thereunto. Jyl. Par. 124.

And Dr Gibfon delivers it abfolutely, that the arch*
oilhop has a right to deprive a fuftragan bifhop ; and for
:he fame refers to the cafe of Zk^j and Dr Watfon bifhop
jfSt David's J E. II PF,v/hich was thus : Lucy promo-
:ed a fuit ex ofHcig betore archbifhop Tennifon, in a
:ourt held at Lambeth before the archbifhop himfelf in
perfon (who called to his alTiflance fix other bifhops}^
for fimony and other offences. And the bifhop of St
David's moved the court of king's bench for a prohibi-
tion ; and the fuggeftion was ;

Firfl, That it doth not appear, that the bifhop of St
David's was cited to appear in any court whereof the law
takes notice ; for the citation is, that he fhould appear
before the archbifhop of Canterbury or his vicar general,
in the hall of Lambeth houfe ; which is not any court
whereof the law takes notice : for the archbifhop hath
the fame power over his fuffragan bilhops, as every bifhop

Vol. L P hath

210 B<(l)OpS*

hath over the clcfgy of his diocefe ; but ho bifhop cart
cite the clergy before hlmfelf, but in his court ; ^nd
therefore the citation ought to haVe been here, to apbeaf i
in the arches, or fotne othef Court of the archbiftdp.
But it was anfwered, that withoiit doubt the archbilhop
hath jurifdidlion over all the clergy, as well bifhops aSi
others, within his province : And for that was cited th6
tafe of Dr Wood bifhop of Litchfield arid Coventry, who
in the year 1687 was fufpended by archbifhop Sancroft
for dilapidations, and the profits of the bifhoprick "wrerfci
fequeftred, and the epifcopal palace was rebuilt otit of
ihem ; and he died under that fequeftration : And theffc
was cited alfo the cafe of Marmaduke Middleton bifhop I
of St David's, who in the year 1582 was fufpended b^
the high commiflloners (who had not any new, or greatet
jurifdidion than the archbifhop) for mifapplication ani
iabufe of the charity of Brecknock (which was one of the
crimes of which this prefent bifhop is alfo accufed.) An^
Holt chief juftice faid ; The admitting of that point of
the jurifdi£^ion to be difputed, wmild be to admit the
difpuring of fundamentals, which the counfel of the other
fide attempt to fubvert, not duly confidering the refpeft
due to the primate and metropolitan of Engknd ; for the
archbifhop of Canterbury has without doubt provincial
jurifdi£lion over all his fufFragan bifliops, which he may
fexercife in what place of the province it fhall pleafe him ;
and it is not material to be in the arches, no more than itt
any other place ; for the arches is only a peculiar, cott*
fifling of divers parifhes in London, exempt from thc
bifhop of London, where the archbifhop of Canterbury-
cxercifeth his metropolitical jurifdiilion, but he is not
confined to exercife it thtre : And the citation is here to
appear before the archbifhop himfelf, or his vicar genera!,
who is an officer of whom the law takes notice ; for the
vicar general in the province is of the fame nature as the
chancellor in every particular diocefe ; and the dean of
the arches is the vicar general of the archbifhop in all (hc.
province.

Secondly, It was urged by thc counfel of the bifhdp
for the prohibitiolri, that the matters contained in the ar-
ticles exhibited againft thc bifhop before the afchbifhop
were of temporal cognizance, and not cognizable befoi^e
the archbifhop : The firft of which articles was, that the
bifhop of St David's, being incumbent of the church of
Boroughgreen in thc county of Cambridge, covenanted
with William Brookes for two hundred guineas, to make

him

a6i'(i)op§. 211

him his carate, and td refign to him his reS^ory, when he
(hould be rcquefted to do it. But by Holt chief juftice,
Imony is an offence by the canon law, of which the
common law doth not take notice to punifh it ; for there
s not a word oi fimmy in the ftatute of Elizabeth, but of
ouying and felling: Then it would be very unjuft, if
jcclefiaftical perfons might offend againft their ecclefiaflical
luty in fuch inftances, of which the common law cannot
:ake notice to punifh them, and yet the king's bench
ihould prohibit the fpiritual court from inflicting punifh-
Tient according to their law : The clergy are fubjecSl to a
aw different from that to which laymen are fubjedt ; for
Jiey are fubjedl to obey the canons \ for the convocation
of the clergy may make laws to bind all the clerks, but
not the lay people ; and if the clergy do not conform
:hemfelves, rt will be caufe of deprivation.

Then the counfel for the bifhop faid, that another ar-
ticle againft the bifhop was, that he took exceffive fees,
for conferring orders, infHtutions, vifitations, and the
like; which amounts to extorfion : and therefore is pu-
nifhable by indi<5lment at the common law ; and the ra-
ther, becaufe they (hew cuftom for th^ faid fees, and the
fpiritual court cannot try cuftom or not. But it was
anfwered, and agreed to by the court ; that thefe offences
in the fpiritual court, and by the canon law, are funony.
And by Holt chief juftice; by the canon law, and of com-
mon right, no parfon ought to take any thing for chrlften-
ing of children, burials, or the like, but by cuftom they
arc allowed to take fomething; and procurations are
fuable oniy in the fpiritual court, and are merely an ec-
clefiaftical duty ; and it is a queftion, whether the taking
more for them than ought to be taken, can be extorfion
at common law ; and i^ the prefent cafe, the matter of
cuftom is not in queftion, for then they ought to have laid
a pofitive cuftom to take fuch a fum, which is not here,
but only that he took more than the ufual fees : but if
the cuftom had been laid, it feenied to him, that a pro-
hibition would not have lain ; becaufe it concerns mere
ecclefiaftical perfons and rights, and therefore may be
founded upon their ecclefiaftical conftitutions.

Then the counfel for the bifhop faid^ that another ar-
ticle againft him was, that he ordained a man, and did
-npt,^Klminili:er to him the oaths according to the i JV.
•^ivd yet certified under his epifcopal feal that he had taken
;th& oaths, whereas he had not taken them; which is
-jHinifivablc by the fUuutc of the I JV, at common law,

P 2 bcin^

212 jsi'a)opg.

being a breach of the ftatute. But to this it was ari-
fwered by the court, that the ftatute hath made it now
part of the office of a bifhop, to tender the oaths upon
ordination ; and then the metropolitan may proceed againft
a bifhop, if he doth not obey the ftatute in this point, for
proceeding contrary to his office of biftiop.

Then the counfel for the biftiop argued, that another
article againft him was, that he had ordained a man un-
der age ; that the bifhop made his defence and faid, that
the churchwardens had certified to him that he was ef _
full age ; to which the promoter anfwered, that the certl-i
ficate was forged, for the faid churchwardens did n8t
certify, and one of them could not write ; fo that this
article imports forgery, and therefore examinable and pil-
niftiable at the common law 5 and fince the a£l of unifor-
mity hath altered the law, they ought to proceed on the
■faid a6l, for ordaining under age, But the court faid,
that the diftindlion which would anfwer almoft all thcfe
obje61:ions, was this ; that as to what relates to the o^de
of bifhop, and is againft his duty as a bifhop, the fpirl-
tual court may proceed againft him, to deprive him, but
not punifti him as for a temporal offence : In Caudrey*s
cafe, 5 Co, upon a fpecial verdidt found it appeared, thtt
Caudrey was deprived for preaching againft the commoii
prayer ; and tho' there was other punifhment appointsif
by the ftatute, and not deprivation until the fecond de-
fence, yet it was held, that the fpiritual court might pr^
ceed by their own law, and deprive him for the firft; It
being againft the duty of his office as a minifter, arid
they having power to purge their body of all fcandalous
members.

Another article was, for the abufe of the charity at
Brecknock, and for putting out the fchoolmafter therfe,
and for detaining a deed of exemplification. And a prohi-
bition was granted as to this article, but denied as to the
reft. L. Ray?n. 447.

A prohibition being denied, the archbifhop went on,
and many fcandalous things were proved againft the M-
Ihop of St David's, to the fatisfa6lion of the court. Bit
when they were going to give judgment, the bifhop, thb'
he had waved the privilege of his peerage, and had gOflC
on fubmitting to the authority of his judge, yet then rfe-
fumed his privilege. No regard hov/ever was had to tttid^
plea, fmce it was not offered in the lirft inftance : ahd
the archbifhop pronounced a fentence of deprivation. 2
• JFarn, 656.

Upoa-

^i(i)OpS* 213

Upon this, tjic bifhop of St David's appealed to the de-
;gates : and perceiving that they were of opinion to
f!irni the fentence, he moved again for another prphibi-
on to be granted to the commiffioners delegate, to fiay
leir proceedings in the appeal from the fentence of the
rchbifhop ; upon a fuggeftion, i. That by the canon
w, the archbifhop alone could not deprive a bifhop. 2.
^hat the delegates refufed to admit his allegations.
As to the iirft j 'Holt chief juftice and the reft held, that
n archbifhop hath power over his fulFragan bifhops, and
]ay deprive them ; that tho* there may be a co-ordination
mongft: the bifhops jure dlvino^ yet there is a fubordina-
on jure ecclefwjiicd qua hmnano ; not of necefiity from
le nature of their offices, but for convenience : and for
^hat other purpofe have archbifhops been inftituted by
cclefiaftical confti-tutlons ? The power of an archbifhop
/as very great here in England anciently ; and he had
he fame jurifdiclion of fupremacy, as the patriarchs of
.* ^onflantinople and other places. The pope ufed to call
; lim alterm or bis papam^ and he exercifed the fame jurif-
i(5tion with him. Theodore, who was archbifhop not
ang after Auftin, deprived Winifred bifhop of York, for
he faid fee was not then metropolitical, but fubjedl to
he archbifhop of Canterbury ; and yet at the fame time
j I here was a council held, and Beda commends Theodore
\ \ or it. But afterwards, in the time of Henry the firfl and
ijcing Stephen, the pope ufurped the authority of the
t i irchbifhops ; in exchange for which, they became /<?^^//
\\iati of the pope. And that is the reafon why this prac-
f':ice cannot be found to have been put in ufe for fo long a
^cime. But at this day, by the ad: oi Hen, 8. this jurif-
f dicSlion is reflored. It was always admitted that the arch-
r bifhop had metropolitical jurifdidlion, and the bifhops
fwear canonical obedience to him j and where there is a
vifitatorial power, there is no reafon to queflion the power
of deprivation 5 for the fame fuperiority, which gives him
power to pafs ecclefiaftlcal cenfurei upon the bifhops, will
give him power to" deprive, it being only a different de-
gree of punifhment for a diiFerent degree of oiFence.
And to queltion the authority of the archbifhop, is to
queftion the very foundations of the government. But
Holt chief juftice faid, that tho' he was fully fatisfied that
the archbifhop hath fuch jurifdiclion ; yet h« would not
make that the ground of denying a prohibition in this
cafe : The matter of the fuggeftion is, that the archbifhop
is reftraincd by the canon law, from proceeding without

P 3 the

214. J&(fl)Op«(.

the afliftancc of others : whether he be fo or not, is mat-
ter proper for the conufance of the delegates upon thc'^
appeal, bat is no ground to prohibk them from proceed-
ing J and it is without precedent, to grant a prohibition
to the ecclefiaftical court, becaufe they procjeed there
contrary to the canons.

Then it was moved, that the court would grant a man-'
damus to the d legates, to admit the biihop's allegations j-
and it was compared to the cafes where they grant manda-
mus's to compel the granting of probates of wills, or let-
ters of adminiftration. But by Holt chief juftice, Tht^'
king's bench cannot grant a mandamus to them, to com-»
pel them to proceed according to their law : Indeed man-y
damus's are grantable to compel probate of wills, becaufq
it concerns temporal right ; and to compel the granting
of letters of adminiftration, becaufe the ftatute directs tQ
whom they fhall be granted. But in the prefent cafe a
mandamus was not granted.

Upon the whole, a prohibition was denied by the court ;
and they ordered that the fuggelHon be entred on record^
that the court might enter their reafons of denial. X*
Haym. 539.

After which denial of the prohibition, the bifhop of
St. David's petitioned the lord chancellor Somers, to havis
a writ of error upon this denial of the prohibition. Who
having fome doubt, whether it would lie or not, referred
it to the then attorney general ; who certified his opinion
to be, that a writ of error would lie in this cafe. Upon
which, the fuggeftion was entred upon record, and the
denial of the prohibition ; and the writ of error was grant-
ed, and the whole record brought by the chief juftice
into parliament. And afterwards, upon hearing of his
opinion, the lords of parliament were of opiiiion, that a
writ of error would not lie \n this cafe.

And lord Ravmond fays, that lord chief juftice Holt
told him, if the lords had been of opinion, that the prp-
hibition ought to have been granted, yet he never woiild
have granted it. L. Rajm, 545.

And Dr IVnifon was afterwards excommunicated for
non-payment of cofts ; and in MichaelmaHj term in the
I An. was brouc^ht into the court of king's bench upoj) an
habeas corpus directed to the fheriff of Middlefex, in order
to be difcharged. To which writ the flierift* made a long
return, in which \.]\g ft^nificavh and excontmunicato capiendo
were fhewn at large ; by which it appeared, that the de-
fendant was in rui^ody of the flieriff, being arrcfted upon

JBlOjOpS. 215

^ excommunicato capiendo^ being excommunicate for non-
payment of cofts, in which he was condemned by the com-r
miflioners delegate. And the return of the habeas corpus
being filed (tho* the defendant was informed that thtftg"
nificavlt was bad, and that by exception taken to it he
might be difcharged) his counfel offered a plea ingrofled,
and figned by counfel, that he long before, and at the
time of the profecution was, and now is bifhop of St.
David's ; that he was fummoned to parliament in the fe-
venth year of king William, and fat there as bifhop, as
appearcth by the record ; and fo concluded in abatement,
bJecaufe a capias doth not lie againfl a peer. And the in-
tent of this plea was, to have the judgment of the king's
bench upon it, and upon the faid judgment to bring a
writ of error in parliament, where he hoped to have judg-
ment in his favour as to the right of the bifhoprick, of
which he was deprived by the archbifhop. And there*
fore his counfel infifled, that their plea fhould be received,
and that they were ready to try it with the attorney gene-
ral, whether the defendant was bifliop or not ; and that
if be is bifhop, as they fay he is, then a capias will not
lie againfl him, becaufe he is a peer of parliament. But
the court refufed at lirft to receive the plea, i . Becaufe
the defendant is not in cuflody of the marfhal ; ancj
therefore he cannot plead fo as he has here. 2. He hath
not made any conclufion to his plea, and therefore the
court doth not know what judgment he defires. 3. All
the court held, that bifhops are fubjedt to be excommuni-
cated, and if an excommunicato capiendo fhould not l^e
^gainft them* there would be a judgment without a power,
of executing it, which is abfurd.

But afterwards the defendant amended his plea, and
pleaded as in cuflody oi the fheriff of Middlefex. And
upon the importunity of the defendant's counfel, the plea
.,^as received, and a day given to the queen's attorney
general to reply to it, or demur, as he fhould judge pro-
per. But the attorney general, not being ready for the
' queen, prayed another day. And afterwards he came
and declared to the court, that he would not intermeddle
* in the matter. Upon which the court faid, that lince it
"appeared to them, that the /ignijicavit was ill, becaufe it
^id not appear thatthefe cofls were adjudged in a caufe of
Ccclefiaftical cognizance, they quafhed the writ of excom-r
\imunicato capiendo^ and difcharged the defendant, and re-r
'"lufed tg take any notice qf the plea. L. Ray.m, 817.

P 4 But

2i6 a5ia)0p5.

" But Dr Watfon having been promoted by king James
the fecond, that party, though afliamed of Watfon as a
corrupt and vicious prelate, yet continued to fupport him.
The archbifhop's jurifdiftion was therefore excepted
ae^ainft in the houfe of lords ; under a pretence that he
could not judge a bifhop, but in a fynod of the bifhops of
the province, according to the rules of the primitive times,
^ In anfvver to which, it was fhewn, that from the ninth
century downv/ard, both popes and kings had concurred
to bring this power fmgly into the hands of the metropo-
litans ; that it was the coniLant pradlice in England be*
fore the reformation ; and by the provilional claufe in thcj
aCft of the 25 H, 8. impowering a new body of eccle-'
fi^ftical laws to be drawn, all former laws and cuftoms^.
were to continue in force till that new code was framed;-
which confirmed the power the metropolitan was then
poffefTed of. Nor could the archbifhop ere(St a new court,
or proceed in the trial of a bifhop in any other way thani
in that which was warranted by law or precedent. To ;
this no anfwer was made (nor could be made;) but yet
the bufmefs was kept up by the bifhop's friends, and at
laft dropped, with an intimation that it was hoped thQ->
fee would not be filled, till the houfe was better fatisfied
of the archbifhop's authority. 2 Warn. 656.

But it may not be improper to take notice here, that
according to the fenfe of the canon law, it is not regular
to fubjedt fuffragans to the cenfure of the officers of an
archbifnop (from that reverence which is due to the epif-
copal ofHce :) And accordingly in the time of archbifhop
Cranmer, l^lx bifhop of Norwich protefted againft the
proceedings of the archbifhop's commifTary in his metro-
political vifitation ; becaufc it was againlt the dignity of
a bifliop to be judged or proceeded againfl by a commifTary,
Gibf. 1006.
Qp^ljjn^ 5. Every bifhop (Dr Gibfon fays) whether created

or rranflated, is bound, immediately after confirmation,
to make a legal conveyance to the archbifhop, of the next
avoidance of one fuch dignity or benefice, belonging to
his fee, as the faid archbifhop fhall chufe and namej
which is therefore commonly called 4n option. Of this
we find early mention in the records of the fee of Canter-
bury, among the prefentatioqs, inflitutions, and collar
tions of the archbifhops 3 but with thefe two variations,
that in fomc places it is faiJ to be due ratione confecra-
tionis ; and that anciently the perfon to be promoted was
n^ied to the bifhop, aad not the dignity or benefice ho

aB(C^opS. 217

was to be promoted to. But ever fince archblfhop Cran-
mer's time at leaft, the way hath been, to convey the
advowfon, either of the firll dignity or benefice that fliould
fall, or of fome one certain, to the archbifhop, his exe-
cutors and affigns, at firft for twenty one years, and after-
wards for the next avoidance. But in cafe the biftiop
dies, or is tranflated, before the prefent incumbent of the
promotion chofen by the archbifhop (hall die or be re-
moved, it is generally fuppofed, that the option is void ;
inafmuch as the grantor, fingly and by himfelf, could
not convey any right or title beyond the term of his con-
tinuance in that fee. G/^/ 115.

And if the archbifliop dies before the avoidance fhall
happen, the right of filling up the vacancy fhall go to his
executors or adminiftrators. As in the cafe of Richard/on
againft C^^/;72fl« and others, Nov. 21. 1759, which was
thus : Dr. John Potter, late archbifhop of Canterbury,
being pofTcffed of or intitled to the next prefentation to,
or difpofition of, feveral benefices or dignities in the
church, called by the name of options, under grants from
the bifhops of the province, by virtue of the prerogative
of the fee of Canterbury, did by his will dated Aug. 12.
1745, bequeath the fame in the words following, <' I
give and bequeath to my executors, all my options, in
trufl neverthelefs, that in difpofing of the faid options,
regard be had, according to their difcretion, to my eldefl
fon Mr Potter archdeacon of Oxford, to my fons in law
the hufbands of my daughters, to my prefent and former
chaplains and other domeflicks, particularly to Dr Tun-
flall my chaplain, and to Mr Hall my librarian ; alfo to
my worthy friends and acquaintance, particularly to the
reverend Dr Richardfon of Cambridge, who will, I hope,
in due time, find fome opportunity to rectify thofe mif-
takes in his printed accounts of my dear and mofl honour-
ed patron archbifhop Tenifon, of which he has been by
me advertifed.'* And the archbifhop appointed Dr Paul,
l>r Andrew, and Df Chapman his executors.

Dr Andrew died in the life time of the teflator. The
teflator died in October 1 747. And Dr Paul and Dr
Chapman, the furviving executors, proved the will.

The benefices and eflablifhments in the church, which
jire called options, are of fuch nature, that if an option,
happening to be vacant, be not filled up during the con-
tinuance of the bifhop in the fame fee, upon whofe pro-»
Hiotion fuch option arofe to the archbifhop, fuch option
n gone or loll j as it would be alfo, if fuch option fhould

not

1 8 BiC^opiBi;

not become vacant before the faid bifhop fhould die or be
tranflated : and in thofe inftanccs, the archbifhop who.
made the option, if he be living, or his executors, wilj^ j—
not be intitled to prefent to fuch options. ' .*H

The faid archbifhop, before or after making his will,
had amply provided for his faid fon Dr John Potter, and
his fons in law, and Dr Tunftall ; and had alfo promo-I
ted Dr Chapman to the value of about 600 1. a year.

The firft option that fell, was the treafurerfhip of th^!
cathedral church of Chichefter. And thereunto Dr Paul
prefented his co-truflee Dr Chapman. Whereupon the
iald Dr Potter, and the fons in law of the faid archbifhop,.
iiied their bill in chancery; infifting, that Dr Potter as.
being firft named in the will, and after him the fons i^
law, were intitled before any others, to be prefented tp
the options, as they became vacant. Dr Paul by his
anfwer faid, that Dr Chapman having been one of the
archbiftiop's chaplains, he the faid Dr Paul taking into
confideration, that in cafe of his death, the fole right of
prefenting to the options on a vacancy would veft folely
in Dr Chapman, and that Dr Chapman might by means
thereof be hindred from having any of the options for his
own benefit, but that the complainants in the faid fuit or
any of the other objects named in the teftator's will might
at any time afterwards be prefented to all the other op-.
tions on a vacancy, did therefore prefent Dr Chap-
man to the dignity of the treafurerfhip of Chichefter ; and
further faid, that he was willing to join in prefenting the'
feveral other perfons named or pointed out by the arch-^
bifliop in his will to the options, as the fame fjiould be- i
come vacant ; and did not intend, jn cafe Dr Chapmai;.'
Jhould be eftablifhed in the treafurerfliip, to prefect him
to any other of the options. Dr Chapman likewife by
his anfwer faid, that he was willing and defirous, and
believed Dr Paul was willing and defirous, from time to
time, as the other remaining options fhould become va-
cant, to prefent thereto the feveral perfons named or
pointed out by the archbifhop in his will, according to
the beft of their difcretion, and according to the trufls
repofcd in them. — And Dr Chapman was eftablifhed in
the faid treafurerfhip.

The fccond option that fell, was a recEtory with euro
of fouls i of which no further notice is taken in the re-;
port.

After this, Dr Paul died,

The

25i'a)opg* 219

• The third option (which is the option in queftion)
that became vacant, was the precentorfhip of Lincoln,
Immediately upon the vacancy, Dr Chapman, who was
now the only furviving executor, waited on the bifhop
of Lincoln, defiring to be admitted into the office or dig-
nity of precentor, as patron of that turn, upon his own
prayer. The bifliop took time to confider of it; and
afterwards wrote to Dr Chapman, and informed him,
that if he the faid Dr Chapman had been abfolute patron
of that turn, he would have admitted him to the precen-
torfhip upon his prayer ; but that as it appeared he was
not fuch patron, but only in trufl-, he defired to fee an
extract of the archbifhop's will, and a copy of the order
of the court of chancery relating to the treafurerfhip of
Chichefter, whereupon he might determine whether he
could properly admit Dr Chapman to the precentorfhip
or not.

Upon this, Dr Chapman applied to one Mr Venner,
tiephew to the wife of archbifhop Potter, of whofe edu-
cation the archbifhop had taken particular care, and for
whom he had exprefTed a great regard, and had promoted
him to a living of 100 1 a year, and exprefTed his inten-
tion to promote him further. Dr Chapman told Mr
Venner, he had long intended to ferve him ; and that
there was then an option vacant, by which he defigned
that he fhould be benefited or ferved ; and then told him
that the precentorfhip and canonry-refidentiary of Lincolir
•was become vacant, and talked to him about the nature
and bufinefs of the precentorfhip, and told him that per-
haps the option it felf might not be fuitable to him, arid-
afked him if he fhould not like fomething elfe inflead of
the option, fuch as hi^ (the faid Dr Chapman's) living
of Merfham. Mr Venner defired to have the living of
Merfham, inflead of the precentorfhip. And thereupon
"'Mr Venner figned a certificate to the bifhop, that Dr
'Chapman had offered to him th2 faid precentorfhip, but
that he chofe in lieu thereof, and in the way of exchange,
> certain other preferment more fuitable to him, then in the
pofTefTion of the faid Dr Chapman ; humbly requefling,
that the bifhop, inflead of himfelf, would be pleafed to
admit Dr Chapman to the precentorfhip.

About the fame time, Dr Chapman acquainted the
late Thomas Potter, efquire, another fon of the faid arch-
bifhop, that he intended, with the confcnt of the bifhop
of Lincoln, to take the precentorfhip to himfelf, and to

Vdtgn his living of Merfham to Mr Venner. Upon
which

220 BltllOpS*

which, Mr Potter objeaed, that Mr Venner was only
bachelor of arts, and therefore incapable of taking a dif-
penfation to hold two livings ; and alfo that Dr Chap-
man was not patron of the faid living of Merfham, and
confequently that it was not in his power to make the
exchange propofed, without the confent not only of the
bifhop of the diocefe, but alfo of the patron. Unto
which Dr Chapman replied, that this had been confi-
dered and fettled ; and that Mr Venner was to go again^^i
to the univerfity, and keep as many terms as would enabU
him to take a degree of mafter of arts, which, with a
chaplainfhip to fome nobleman, would qualify him for a
difpenfation ; and that it would be no difficult matter to.
obtain the confent of the archbifhop of Canterbury, th^.
patron of the living, to exchange Dr Chapman's life in
the faid living, for the life of Mr Venner. And upon
Mr Potter's afking, what was to become of the living in
the mean time, Dr Chapman replied, that he the faid
I)r Chapman fhould keep the pofTelEon both of the pre-
centorfhip and the living, making a flipulated allowance
thereout to Mr, Venner.

In the mean time a caveat was entred with the bifhop
of Lincoln, againft the admiflion of Dr Chapman to thp
precentorfhip. Whereupon the bifhop informed Dr
Chapman, that it was neceflary he fhould make a prefenr
tation. And upon this, Dr Chapman executed a pro-*
fentation of Mr Venner. . ,^

Before Mr Venner's offering himfelf to be admitted
upon the faid prefentation, Dr Richardfon filed his bill
againfl the feveral parties, to wit, Dr Chapman, Mr
Venner, Dr Tunflall, Mr Hall, Dr Potter, Dr Tan-
xier, Dr Milles, Dr Sayer, and the bifhop of Lincoln ;
charging the feveral matters before flated, and that the
firfl and principal view of Dr Chapman was, to obtain
the precentorfhip to himfelf, without refigning any pre-
ferment ; and when he found a difficulty in fo doing, he
then firfl refolved to make ufe of Venner, by way of ex-
change of other preferment of lefs value; that all the
perfoiis particularly named in the archbifhop's will, had
either from the archbifhop in his life time, or fince hi$
death by means of his options, received fome benefit or
prcfcrm.cnt, except him the faid Dr Richardfon, who
had, fmce the archbifhop's death, altered his printed
account of the life of archbifhop Tenifon, agreeably t^
the intimation given him by the archbifliop in his will;
And all the defendants, except the bifhop of Lirwroln,

were

Bii^ops.

221

were required to fet forth, whether they claimed to be
prefented to the faid precentorlhip of Lincoln : And it was
*jprayed, that the faid bifhop of Lincoln might be reflrain-
'cd by injundlion, from doing any a6l for the induction,
inftallation, or eftablifhment either of Venner, or Chap-
man, 6r any other perfon to the precentorihip, till the
matter fliould be determined.

' To which bill the federal defendants put in their an-
fwers. And Chapman and Venner by their anfwers in-
ftfted, that Venner was prefented for his own benefit and
advantage, and without any agreement or promife what-
foever for an exchange. But Chapman by his anfwer
iidmitted, that he had for twelve months then laft pail
and upwards, had within himfelf an intention of making
an exchange with Venner for the faid option, in cafe Ven-
' ner, after his being admitted, fliould be willing to make
fuch exchange ; and believed that the faid Venner had
^been, and would in fuch cafe be willing, to make fuch
'4exchange with him the faid Chapman ; but that he was
/hot abfolutely determined within himfelf, and therefore
'iould not fet forth, in cafe the faid Venner, Ihould be
admitted to the vacant option, and fhould offer to ex-
change with him for any preferment of his, whether he
the faid Chapman fhould or fhould not comply with fuch
.offer; and therefore did not know, nor could form any
belief, whether fuch their intention was at an end. — And
' the faid defendant Venner by his anfwer faid, that in cafe
* he had been indu6led into and in the pofTeffion of the faid
vacant option, upon the prefentation made by Chapman,
"Without any obflru£l:ion or impediment attending the
fame ; he the faid defendant Venner, after fuch induction',
' fliould have been willing, and did within himfelf intend,
to exchange the famiB with the defendant Chapman, for
his living of Merfham, or fome other preferment in the
pofTeflion of him the faid Chapman, in cafe Chapman
would have confented thereto : and faid, that he was, at
the time of putting in his anfv/er, inclined to believe, that
he fhall and doth intend, after his being inducted into and
in poffeffion of the option, to exchange the fame with the
defendant Chapman for his living of Merfham, in cafe
the defendant Chapman would confent thereto. — And the
defendants Dr Potter, Dr Saver, Dr Tanner, and Dr
Milles, by their anfwers renounced and refigned all right
or claim of being nominated or prefented to the faid pre-
centorfhip. And Dr Tanner and Dr Milles faid, they
were the more willingly induced to relinquifh all right cr

claim

2 22 mams*

daim thereto, in order to open the way fo the plaintift
whom they knew to be a perfon very much refpe£^ed by
the late archbifhop Potter in his life time. — The defen-
dants Tunftall and Hall by their anfwers iiififted on a
prior right to the plaintiff^ under the truft of the arch*
bifhop's options, being named next after his fon and fons
in law. But not appearing to the appeal afterwards, they
relinquifhed thereby their claim. — The bifhop by his an-
fvver faid^ that he was willing to be reftrained as aforefaid,
until the right (hould be determined.

After a full hearing of the caufe before the lord keeper,
the 17th, 19th, 20th, and 21 ft days of November,
1759; his lordlhip, after flating the cafe, delivered his
opinion to the following effect : " The arguing of this
caufe hath taken up much time, but the merits of it lie
in a fmall compafs. The whole queftion is reducible to
this fmgle confideration, whether the archbifhop has or
has not given his options, with any imperative words,
whereby a right is derived to any of the perfons named in
his will. This is a particular kind of truft, in which
great^'latitude is left to the judgment of the truftees. It
is difficult to fay, whether any of the perfons named were
intitlcd or not to any of thefe options jure remediali. Y^t
I have no doubt to fay, this court would not have fufFered
Dr Chapman to have abufed his truft, by taking any thing
to himfelf. Nay I will go farther, and fay, that if here
was fufficient proof, that the defendant Chapman had
made a bargain with Mr Venner for prefenting him to
his option, I would fet afide fuch prefentation with indig-
nation. I own there is ftrong foundation of fufpicion and
jealoufy, that fuch was the original of Venner's merit with
Chapman : But then it is exprefsly denied both by Dr
Chapman and Mr Venner, in their anfwers to the bill,
that there was any agreement between them at the time
of Chapman's prefentation of Mr Venner ; but that it
was merely a tranfadlion to fervc Mr Venner. And I
muft give credit to thefe anfwers upon oath, whatever
may be my fufpicions to the contrary. For it would be
dangerous, if this court was to make its decrees on jea-
loufies and fufpicions, and not on fafls. It is plain, the
defendant Chapman meant to take this option at firft to
himfelf; but when that was checked by the bifhop of
Lincoln, then the evidence is, that Chapman prefcnted
Venner without any agreement between them for that
purpofe. This truft, in my opinion, is only a pcrfonal
confidence, or jus precarium^ according to lord Bacon's
I diftiaclion

JBiC^Ops; 223

dTRin£l:ibn arid definition : And in the Roman law, the
fidei cdmmtjfum was precarious, fo late as till Auguftus's
timiS. By the rules of this court, a requeft in a will at
this day is imperative : but then there ought to be a par-
ticular perfon named and pointed out, who is to take the
benefit. As to thefe options themfelves, the archbifhop's
right to them is not a right of property, but of preroga-
tive ; and in their very nature they partake of a truft, to
be difpofed of for publick utility. In my opinion, the
archbifhop has communicated his right to his executors,
as freely as he would have exercifed it himfelf; diredling
them at the fame time to have a regard to thofe he him-
ielf had a regard to. But fuppofmg the defendant Ven-
ner to be excluded from this precentorfhip, whom jnuft
this court honour with this preferment ? There are a
number of perfons named in the archbifhop's will : It
would be impoffiblc for this court, to take the perfonal
merits of each of them into confideration, as the archbi-
fhop and his executors might do, who were perfonally
acquainted, with them. But it has been faid, that Venner
will refign in favour of Dr Chapinan; and fo by that
means he will obtain this preferment at laft to himfelf :
But this cannot be done without the intervention of the
bifhop of Lincoln ; and in fuch cafe, Dr Chapman would
take this preferment upon the bifhop's prefentation ; whofe
Worth and honour I know fo well, that I am fure he
would give no countenance to any tranfadlion that was
Wrong. Upon the whole then, the archbifnop's will h
reduced to a delemma, which neither fide contends for :
Firft, If it is to be taken as a rogation or requeft made by
the archbifhop, then I fee no reafon why the perfons
named in the will might not take as they are named in
the will /« srdine and^in fucceflion, which is a thing I
would not chufe to fay fitting in this court, — that the
"fruits of this ecclefiaftical prerogative, trufted to the arch-
i)ilhot) himfelf for purpofes of publick utility, fhould be
daled out by this court to the hufbands of his daughters,
■^d fmelling rankly of marriage brocage. Then, Second-
ly, I muft fay, this was a full delegation of the archbi*
ihop's authority to his executors, and confequently dif-
^•etionary. In my opinion, Mr Venner is the properefl
bb}c6!: of this option. Dr Tunftall, as hath been prov-
icdj'hath a provifion of 500 1 a year; Mr Hall has two
livings ; Dr Richardfon is mafter of Emanuel college ;
and Mr Venner, who was a nephew of Mrs Potter V,

and

224. J5<a)0p5.

aiid adopted by the archbifhop, has a family and xool a

year."^ And the bill was difmiffed.

But on appeal to the houfe of lords by Dr Rlchardfon,
Mar. 22. 1760. After a full hearing of three days, the
lords ordered fo much of the decree as was complained
of by the appellant to be reverfed ; and that Dr Chapman
fhould prefent Dr Richardfon to the precentorfliip, and
pay the faid Dr Richardfon's cofts in the faid caufe in the
court of chancery.
ggai, 6. The archbifhop of the province is intitled to the

feals of a bifhop deceafed. And this is no more than
a juft and reafonable provifion againfl their being ufed
to ill purpofes by executors, or others i to prevent which,
they are to be broken. Gibf, 133.

VIII. Offuffragan bijhops.

Whatit meant I. In former times many bifhops had their fuffragans,
fcy a fufFragan ^j^q ^grg alfo confecrated as other bifhops were. Thefe,
^^* in the abfence of the bifhops upon embailies, or in multi-

plicity of bufmefs, did fupply their places in matters of
orders, but not of jurifdi(9:ion. They were anciently call*
ed chorepifcopi^ or bifhops of the country^ by way of dif-
tin£tion from the proper bifliops of the city or fee. They
were alfo called fubfidiary bifhops, or bifhops fuffragan
(ixovcifuffragari^ to help or aflifl) ; and were titular bifhops,
confecrated by the archbifhop of the province, to execute'
fuch power and authority, and to receive fuch profits, as
were limited in their commiflions by the bifhops or dioce-
fans whofe fufFragans they were. God, 30. Gihf, 134,
Wood b. I. c. 3.

Alfo, in a lefs proper fenfe, all the provincial bifhops,
■with refpe£t to the archbifhop, are fometimes called his
fufFragans.
See* of fufFragan 2. By the 26 H. 8. c. 14. Forafmuch as no provifion /;/-
¥i&op», iherto hath been made for fuffragansy which have been accuf-

iomed to be had zvithin this realniy for the more fpeedy adrni'"
nijiration of the facraments and other good wholefome and de^
Vout things and laudable ceremonies^ to the increafe of god's
honour, and for the commodity of good and devout people^ it is
inaSled, that the towns (j/'Thetford, Ipfwich, Colchcfler,
Dover, Guilford, Southampton, Taunton, Shaftfbury,
Molton, Marlborough, Bedford, Leicefler, Glocefler,
Shrewfbury, Briflow, Penreth, Bridgwater, Nottingham,
Grantham, Hull, Huntingdon, Cambridge, and the towns
ff Pereth, and Berwick, St Germains in Cornwal, and
4 iht

jBta)ops. 225

ih€ \p 5/ Wight, Jhall he taken and accepted for fees ofhljhops
fuffragam. f. i.

Forafmucb as no provlfion hitherto hath been made] That
is, -by a(9: of parliament ; as had been for archbilhops and
bifhops by the 25 //. 8. c, 20.

T/}e towns 5/*Thetford, &c.] The fufFragans have their
fees in towns ; and not in cities, as the bifhops in Eng-
land have.

3. And every archbijhop and bijhop, being difpofed to ^^^/^ Nomination of
any fuffragan^ Jhall name two honeft and difcreet fpiritual per- * ^"^'"gaa bi-
fons^ being learned and of good converfation^ and prcfent them °^*

to the king^ by writing under their feals^ making humble re-
quefl io his majefly^ to give to one fuch of the faid two perfons
as jhall pleafe his majefiy^ fuch title namejlile and dignity of
bijhop of fuch of the fees above fpecified^ as he Jhall think moji
convenient. And the king^ upon fuch prefentaiion^ Jhall have
power to give him thejiile title and name of a bijhop of fuch
of the fees aforefaid, as he Jhall think convenient', fo it be
within the province whereof the bijhop that doth name him is»
And he Jhall he called bijhop fuffragan of the fame fee, 26
H. 8. c. 14. f. I, 2.

Of fuch of the fees aforefaid as he Jhall think convenient'^
As there are not fees for fufFragans appointed in every
diocefe, fo neither is the king obliged to give the fuffra-
gan a title within the diocefe of the biftiop who doth
recommend him ; but he may (vi^ithout regard to the
diocefe wherein they are to officiate) give them any of
the titles mentioned in this a£l : neverthelefs, generally,
the titles have been given within the diocefes they were
to aflift in. Gihf 134.

4. And after fuch title^ flile and name fo given, the king Mandate for
P)all prefent him by his le'tfers patents under the great feal, /^ coarecratioa,
the archbijhop of the province, requiring him to confecrate the

faid perfony and to give him fuch other benediSiions and cere^
monies, as to the degree and office of a bijhop Juffragan Jloall
be requiftte, 26 H. 8. c. 14. f. 3.

To the archbijhop of the province] By the canon law, the
confccration was to be by the bifhop, allifted by two
neighbouring bifhops. G/^/ 135.

5. And the bijhop that Jhall nominate the fuffragan, or /^^^Conrecr.itlon of
fn^ragan himjelf that Jhall be ?iominate, Jhall provide /w/^^^"^"g'in bi-
bijhops or Juffragans to conjecrate him lijith the archi)iJl)op^ ^'^'

and Jhall bear their reafomible cofts, 26 H. 8. c. 14.
f. 7.

Vot. L Q. And

2 26 jBlt^Opg*

And the anhhtjhop having no lawful impediment y Jhall
confecrate fuch fuffragan^ within three months next after the
letters patents fiall come to his hands, f. 5.
His power, 6. And the perfon fo confecrated^ Jhall have fuch capacity

power authority and reputation ^ concerning the execution of fuch
commljfion as by any of the fald archbljhops or bljhops within
their dlocefe Jhall be given to the fald fuffragans^ as to fuffra-
gans of this realm heretofore hath been ufed and accujlomed*.
26 H. 8. c. 14. f. 4. ^

Heretofore hath been ufcd and accuJlomed\ There Is no
doubt, but the perfons received to be fufFragan bifhops ia
England, before the making of this aft, were confined
to the exercife of fuch powers only, as they had commify
iion for from time to time ; fuppofing the proper bifhop
not to be wholly difabled by infirmities of body or mind;
and therefore the limiting them to fuch commiilions
here, was only a continuance of them in their former
ilate.. Gihf -135.

And their office ufually was, to confirm, ordain, de-
dicate churches, and the like ; that is, to execute thofe
things which pertain to the epifcopal ^^r^: as to jurlf
dl£llon^ and tcmporaltles^ thefe (in cafe of the intirmi^
ties of a bifhop in body or mind) were put under the
management of a coadjutor^ conftituted by the archbiihoj*.
Glbf 134.

And by the faid ftatute of the 26 /f. 8. c. 14. it is
provided, that no fuch fuffragans JJ)all take any profits of the
places and fees whereof they Jhall be named^ nor have or ujle
any jurlfdlitlon or eplj'copal authority within the faid fees ^ nor
lulthln any dlocefe or place, but only fuch profits jurlfdl^loH
and authority as fijatl he llcenfcd and limited to them by arvf
archbijhop or bijhop within their dlocefe to whom they Jhall hi
fuffragans, by commlffton under their feals\ and every archt^
bij})cp and hljhop for their own peculiar dlocefe, may give
fuc}} commlffton to Juch fuffragan as hath been accujlomed,
or as Jhall by them be thought requiftte reafonable and
convenient: and no fuffragan Jhall ufe any jurlfdl^lon or-
dinary, or epljcopal power, otherwlfe, nor longer time than
Jhall be limited by fuch cormnlffton -, on pain of a pramunlre*
f. 6.
His rcfidcncc. 7. And the refulcnce of him that Jhall be fuffragan oVtr the

dlocefe where he Jhall have coinmlffion, Jhall Jerve him for hit
refidence as fufficlently as If he were refident upon any other hit
benefice, 26 H, 8» c, 14* f. 7.

8. Arid

BfCljop^* 227

8. Kn^ fuch fiiffragan exercifmg the f aid office hy fuch com- May hoLd two
fnlffion as aforefaidi for the better maintenance of his dignity livings.

fnay have two benefices with cure. 26 H. S. c. 14. f, 8.

9. Suffragans have been now difufed for many years ; Suffragins dif.
and indeed they are not now To neceflary, as they were ^^^^*

} in the times of popery j the bifhops then having much
i more employment, iii the matter of benedi6lions, confe-
, crations, and the like : neverthelefs, fufFragans may ftill
j be of great ufe, efpecially fometimes in the article of
j confirmation ; where the diocefes are very large, and the
I dipcefan perhaps very infirm.

!in king Charles the fecond*s declaration touching ec-
clefiaflical affairs ; immediately before his reftoration, one
head is as follows : -fiecaufe the diocefes, efpecially

fome of them, are thought to be of too large extent; we
will appoint fuch number of fufFragan bifhops in every
diocefe, as fhall be fufHcient for the due performance of
I their work. Gibf. 134.

IX. Of coadjutor^

\ It was an ancient cuflom in the church, that when a
I bifhop grew very aged, or btherwife unfit to difcharge
j the epifcopal ofHce, a coadjutor was taken by him or given
\ to him ; at firft, in order to fuccecd hirri, but in later
i times only to be an affiflant during life ; in matters chief-
I ly of jurifdi^lion, as in collating to benefices, granting
\ in'ftitutionS) difpenfations, and the like : and in this cafe
! it was not neceffary that fuch coadjutor fhould be epi-
t fcopally ordained. But the duties merely epifcopal, as
j the conferring orders, confirmation, and confecrations of
; divers kinds, were in fuch cafe committed to the fuffra-
gan bifhop, as hath be^n faid. And tliis was the prac-
tice here in England efpecially : The two ends, of or-
ders, and of jurifdi6lion voluntary, in cafe of the inabi-
lity of a bifhop, were anfwered by two feveral perfons ;
the firfl under the name of fuffragan, and the fecond un-
der the name of coadjutor. Gibf 137.

In the canon law^ dire6f:Ioft is given for a coadjutor
alfo to an archdeacon ; and in our ecclefiaflical records,
thete are many inflances, modern as well as ancient, of
coadjutors given to other dignitaries, and alfo to incum-
bents of benefices. Gibf. li^'j.

0^2 Blafphemy

228

Biafphcmy. Sec pjofanenetiJ,

Bona notabilia. See tOiIl0*
Bond of refignation. See g>itllOttp»
Books belonging to the church. See (ZE^HtcU- j
Books belonging to parochial libraries. See'

JBofcage. i

T^OSCJGE (perhaps from Bvcnca, to fi^ed) feemeth t»
JD be that food which wood and trees do yield unto cattle^*^
as of the leaves and croppings ; and herein dlffereth-
from pannage y which confifteth of the fruit of fuch trees,
as acorns, crabs, or maft ; which, as yielding a tithe,
are treated of under tl^ title %ii\)t^.

Boundaries of Pariflies. See PtUfflj* ^

Brawling in the church or church-yard. Sec.;

I.TJY the 4 y/«. c. 14. When letters patents, eom-.
O monly called briefs, fhall be ifTued outofchan**
eery, copies thereof to the number required by the pe*
titioners, and no more, (hall be printed by the printer
of the queen, her heirs or fucceilbrs, at the ufual rates
for printing.

2. The printer fhall deliver the fame to fuch perfons'
only, as (hall by the confent of a majority of the petition-*
ers undertake the laying or difpofing of them.

3. The undertaker ftiall give to the printer a receipt
for the fame, exprefling therein the number of copies ^.,
which printer fhall forthwith deliver the receipt, or an at-^^
teftcd copy thereof, to the rcgiftcr of the court of chan-
cerv, to be filed there.

' 4 The

^^ids* 229

4. The undertaker {hall next caufe all the printed co-
pies to be indorfed, or marked, in feme convenient part,
with the name of one truftee (or more), written with his
«iwn hand, and the time of figning.

5. And he (hall alfo caufe them to be (lamped with a
proper ftamp, to be made for that purpofe, and kept by
the regifter of the court of chancery. And if any per-
fen (hall counterfeit the ftamp, he ihall be fet in the
pillory for an hour.

6. This done, he {hall with all convenient fpeed fend
or deliver them to the churchwardens or chapelwardens,
^nd to the teachers and preachers of every feparate con-
gregation, and to any perfon who hath taught or preach-
ed among quakers.

7. Which perfons, immediately after receipt, {hall in-
4offe the time of receiving, and fet their names.

S, Then the churchwardens or chapelwardejis {hall
iDrthwith deliver them te the minifler.
*. 9. And the minifters, on receipt, ihall indorfe the time,
Mtlt4 fet their names.

10. Then the miniflers (and teachers refpedively), in
•two months after yeceipt, {hall on fome funday, imme-
diately before fermon, openly read or caufe them to be
If ad to the congregation.

11. Then the churchwardens and chapelwardens {and
teachers and others to whom they were delivered) {hall
collect the money that fhall be freely given, either in
tfe affembly, or by going from houfe to houfe, as the
iteiefs require.

12. Next; the fum colle£led, the place where, and
time when, (hall be indorfed fairly written in words at
kngth, according to the form to be printed on the back
of each brief, and figned* by the minilier and churehwat-
dens, or by the teacher and two elders or. two otbear firb-
ftantial perfons of fuch feparate congregation.

13. Afterwards, on requeft of the undertaker (ot
other perfon by him lawfully authorized), which he
is required to make within fix months after the briefs;
were firft delivered into the refpedtive pari(hes, on pai.i

of 20 1, to be recovered by action at law, -the

churchwardens and teachers (hall deliver to him the
briefs fo indorfed, and the money thereon coliedted, ta-
king his receipt for the fame in fome book to be kept foi
that purpofe.

0.3 U« Everr

230 TBlittS*

14. Every minifter, curate, teacher preacher, church-*
warden, chapelwarden, and quaker, refufing or n^
gle6ling to do any thing above required, fftall for-
feit 20 1; to be recovered by adtion of debt, bill, plaint,
or information.

15. And in every parifh, or chapelry, and feparate
congregation, a regifter fhall be kept by the minifter or
teacher, of all monies colle6ted by virtue of fuch briefs,
therein alfo inferting the occafion of the brief, and thp
time when coUeded ; to which all perfons at all time^
may refort without fee. >

16. And the undertaker fhall enter in a book the nurtt^
bcr of briefs ; when figned, and fejit, and whither, and
when received back. *

17. And the briefs fo received back fhall be depofited
by him with the regifter of the court of chancery. Aril
if the whole number fhall not be returned, the under-
taker for every one not returned (thro' default of him or
his agents) fhall forfeit 50 1 ; unlefs he fhall prove that
it was lofl or deftroyed by inevitable accident : and (hall
pay the money collected thereon.

18. And the undertaker, in two months after he has
received the money, and after notice thereof to the fuf-
ferers, fhall account before a mailer in chancery 5 and
fhall be allowed all juft charges.

19. And if any fhall purchafc or farm charity money

on briefs ; fuch contract fhall be void, and the purcha*

fer fhall forfeit 500 1, to be recovered by a£lion at law';

the fame to be applied (as alfo the other penalties) to the

ufe of the fufFerers.

The ufual charges of fuing out a brief, with the
colledlions thereupon, may be beft underftood from an
inflance given.

Fo/

TBtitfS, 231

For the parifh church of Ravenftondale in the county of
Weftmorland.

1 s d

Lodging the certificate 1 076,

Fiat and figning — jg 4 ^r.

Letters patent ■■ 21 18 2

Printing and paper ' ■ ■ ' ■ ■ 16 o a

Teller and porter ■ o 5 Q

Stamping 13 12 6

Copy of the brief 050

Portage to and from the ftampers o 5 o

Matts &c. for packing ■ 040

Portage to the waggons ■ 040

Carriage to the undertaker at Stafford i 1 1 6
Poftage of letters and certificate -r — ^ o 48.
Clerk3 fees ■ ■ 220

•r* Total of the patent charges ■ 76 3 6,

Salary for 9986 briefs at 6d. each ■ 249; 130

Additional falary for London ■ 5 00

^ The whole charges — - 330 166

1 s d .

Collected on 9986 briefs 614 12 9

Charges 330 16 6

- Clear coUedion — 283 163

Colle6lIons » 9986

Blanks ■ 503

Total number of iwriefs 10489

T^ RUE R/f^ in the french bruyere^ in domefday boolc
-/-^ called bruaria, is an unprofitable kind of ground^
but not wholly barren ; for thereon fheep and beads will
hrotvfe : and fomc poor people apply the flags and turfs
• thereof for fewel. And this kind of heath ground can-
nqt without great (kill, charge, and induftry be convert-.
0,4 cd

2Bmeta.;

ed to tillage; and therefore by the (htute of the 2 ^ 3
Ed. 6. f. 13. it is difcharged from the payment of hay
ar d corn tithes for feyen years after the improvement.
1 1 fendeth a flov,^er in autumn (when all others ceafe)
which bees do exceedingly covet. Some fay it i$ a^
kind of wild tamariflc. And in Lincolnfhire, a relL^
gious houfe was called Temple bruer\ becaufe it was f?at-»
ed in the heath.

And this is no other than what in the northern p^rtt
of England is called Ur.g,

What it is.

Puni/hmcnt;

Infants.

Accefliry.

Navj.

9%tion^

I. T3 UGGERYisisa dcteilable and abominable Hil^
X3 committed by carnal knowledge, againfl the or-
dinance of the creator and order of nature, by mankind
with mankind or with brute beaft, or by \^qn}iankind with
brute beaft. 3 Inji. 58.

2. By the 25 H. 8. c, 6. Forafmuch as there is no(^
yet fuflicient and condign punifhment appointed by the
laws of this realm, for the deteftable and abominable
vice of buggery committed with mankind or beaft ; it
is enaded, that the fame offence fhall be felony without
benefit of cleirgy : and the juftices of the peace fhall
have power to hear and determine the fame, as in cafes
of other felonies.

3. If the party buggered be within the age of dif-
cretion, it is no felony in him, but in the agent only.

3 ^# 59-

4. The ftatute making it felony generally, there may

be acceifaries both before and after, i H. H. 670.

But thofe that are prefent^ aiding and abetting, arc
all principals. Id,

And altho* none of the principals are admitted to their
clergy, yet acceffaries both before and after are not ex- .
eluded from clergy. Id*

5. By the 22 G. 2. r. 33. Art, 29. If any perfon in
the fleet (hall commit the unnatural and deteftable fin
of buggery or fodomy, with man or beaft; he fhall
be punilhcd with death, by the fcntence of a coi^t>
martial.

6. This crime is excepted out of the a£l pf genpraJ»
pardon, of the 20 G- 2. c, 52,

7. In

Bttggetv* 233

7, In the cafe of Higgon and Copplnger^ 7*. 9 C where Prohibition,
the defamation, for which fuit was depending in the
fpiritual court, was buggery, and prohibition prayed j
the court grante4 it, by reafon that the ofFence was
inai^ felony ; and, there being no faving in the acl for
the fpjritual ji|rifdi6tiQn, the fpiritual court could not
Ji2vc cognifance of the principal offence, nor by con-
f^quence of (he d?faj^at4Q|i ^iiing from it. TV, J<m^
320. Cibf, jq8q.

W , I. J u ■

i5ttU.

U L L, hulh^ was a brief of mandate of the pope
or bifhop of Rome; fo called from the feal of
lead, or fometimes of gold, affixed to it. To procure,
publifh, ef'\put in ure any of thefe, is by a6t of par-
liament made high treafon.

I. A S to the original of burying places, many writers On'glnal of !m»

-^ have olpferved, that at the firft creation of churches, 'V^t piac"»
no part of the adjacent ground was allotted for inter*
ment of the dead, but fome place for this purpofe was
appointed at a farther diftance. Efpecially in cities and
populous towns, where* agreeable to the old roman, law
of (he twelve tables, the place of inhumation was with-^
out the walls, firft indefinitely by the way fide, then
in fome peculiar inclofure aliigned to that ufe. There^
for© the roman pontifical, amongft other inventions, is
in this matter convicted of error, that it makes pope Mar*
Callus under the tyrant Maxentius appoint twenty five
churches in Rome to bury martyrs in ; when at that time
Jaws and cuftoms did forbid all burial within the city.
Hence the Auguftine monaftery was built without the walls
^Canterbury (as Ethelbert and Auguftine in both their
charters intimate) that it might be a dormitory to them
?Jid their fucceffors the kings and archbifhops for ever.
This prat^oe of remoter burials continued to the age of

Gregory

234- Btttl'aL

Gregory the great, when the monks and priefts begin-
ning to offer for fouls departed, procured leave for their
greater eafe and profit, that a liberty of fepulture might be
in churches, or in places adjoining to them. This mer-
cenary reafon feems to be acknowledged . by pope Gre-
gory himfelf, whilft he allows, that when the parties d.e»
ccanng are not burdened with heavy fins, it may then
be a benefit to them to be buried in churches, becaufp
their friends and relations as often as they come to thefc
facred places, feeing their graves, may remember them,
and pray to god for them. After this, Cuthbert archbi-
fhop of Canterbury brought over from Rome this pra6i:ice
into England about the year 750, from which time they
date the original of churchyards in this ifiand. This was
a fufficient argument of the learned Sir Henry Spelman,
to prove an infcription at Glailenbury to be ?,later fojs-
gery, becaufe it pretends domimis ecclefta?n ipfam cum cceml-
terio dedicarat^ whereas there was no ccemitery in Eng-
land till above 700 years after the date of that iidion.
The pra£l:ice of burying within ttie churches, did in-r
deed (tho' more rarely) obtain before the ufe of church^
yards, but was by authority reflrained, when church-
yards were frequent and appropriated to that Ufe. For
among thofe canons which feem to have been made be-
fore Edward the confeflbr, the ninth bears this title, De,
7ion fepel'mido in ecdefus^ and begins with a confeflion that
fuch a cuflom had prevailed, but muft be now reform-
ed, and no fuch liberty' allowed for the future ; unlefs
the perfon be a prieft or fome holy man, who by the
merits of his palt life might deferve fuch a peculiar fa-
vour. However, at the firfl: it was the nave or body of
the church,* that was permitted to be a repofitory of the
dead, and chiefly under arches by the fide of the walls,
Lanfranc archbifhop of Canterbury Yecms to have been
the firft who brought up the practice of vaults in chan-
cels, and under the very altars, when he had rebuilt
the church of Canterbury about the year 1075. Ken^
Par. Jnt, 592, 593.
XL ^ •-„'.. »t. 2. No perfon may be buried in the church, or in any
cAurch. part of It, witht)ut the confent of the incumbent. In

fome of the foreign canons, it is faid, without confent of
bifhop and incumbent ; in others, without confent of bi-
fhop or incumbent. But our common law hath given
this privilege to the parfon only, cxclufive of the bifhop,
in a rcfolution in the cafe of Frances and Ley^ H, \i J a,
[Cro, Ja. 367) that neither the ordinary himfelf, nor the

J church-*

churchwardens, can grant licence of burying to any
within the church, but the parfon only ; becaufe the foil
-and freehold of the church is only in the parfon, and in
none other. Which right of giving leave will appear
to belong to the parfon, not as having the freehold
(at leaft not in that refpe61: alone), but in his general
capacity of incumbent, and as the perfon whom the ec-
clefiaftical laws appointed the judge of the fitnefs or un-
fitnefs of this or that perfon, to have the favour of be-
ing buried in the church. For anciently (as was faid)
the burying not only in temples and churches, but even
in cities, was exprefly prohibited. And afterwards when
the burying in churches came to be allowed and prac-
-tifed, the canon law dire6teth, that none but perfons of
^extraordinary merit fhall be buried there; of which me-
•*it (and by confequence, of the reafonablenefs of grant-
• ing or denying that indulgence) the incumbent was in
■reafon the moft proper judge, and was accordingly fo
.conilituted by the laws of the church, without any re-
•.gard to the common law notion of the freehold's being
-in him, which if it proves any thin^ in the prefent cafe,
proves too much ; that neither without the like leave,
may they bury in the churchyard, becaufe the freehold
•©f that is alfo declared to be in him. Gibf, 453.
- Upon the like foundation of freehold, the common law
hath one exception to this neceility of the leave of the
parfon ; namely, where a burying place within the church
. is prefcribed for as belonging to a manor houfe, the free-r
•hold of which they fay is in the owner of that houfe, and
that by confequence he hath a good adlion at law, if He
is hindred to bury there. Gibf, 453.

Yet nevertheless, the churchwardens alfo by cuftom
may have a fee for "every burial within the church ;
, by reafon the parifh is at the charge of repairing the floor.
Watf. c. 39.

But there is good reafon, that any parifhioner, at
his difcretion, fhall not have the liberty of burying
there : efpecially upon account of the health of the
inhabitants to be aflembled there for religious wor-»
fhip.

3, The reafon given by Gregory the great, why it Burying in the
was more profitable to be buried within the precindls of ^^^urchyart,
the church, than at a diftance, was, becaufe their neigh-
bours as often as they come to thofc facred places, re-
membring thofe whofe fepulchres they behold, do put
forth prayers for them unto god» Which reafon was

aftcrwardsi

236 t&atiai.

afterwards transferred into the body of the canoft hxff^
And this fuperftition of praying for the dead, feems to
have been the true original of churchyards, as encom-
paffing, or adjoining to the church. Which being laid
out and inclofed for the common burial places of the re-
fpedlive parifhioners, every pariftiioner hath and always
had a right to be buried in them, Gihf, 453.

For by the cuftom of England, any perfon may be
buried in the churchyard of the parifh where he dica,
without paying any thing for breaking the foil. I>^ii
P, I. <:. 12.

But ordinarily it feemeth, that a perfon may not be
buried in the churchyard of another parifh than that;
wherein he died, at leaft without the confent of the pa-
lifhioners or churchwardens, whofe parochial right of
burial is invaded thereby, and perhaps alfo of th^ in-
cu?nbent whofe foil is broken : As in the cafe of the
churehwardciis of Harrow on the hill^ it is faid, that up-
on a proeefs againft them feme years ago, for fufFering
ilrangers to be buried in their churchyard, and their
-4ppe3ring and confeiTing the charge they were admo- ,
nilhcd by the ecclefiadical judge, not to fufFcr the fame
for the future.

But where a pariiliioner dieth in hia journey, or
cthcrwife, out of the pariih, perhaps it may be other-
wife : As it f^^meth to be, where there is a family
vault or burying place, in the church, or chancel, or
iie thereof.
W!>et^e-/ burial 4. By the cjvil law, dead bodies ought not to be hin-
r*^c^bt'''"'^^^^ dreid from burial for debt, a,s vulgarly fuppofed ; whick
feemed to be allowed by the law of the twelve tables.
IFodd Ch. L, 143, 144. 2 Domaiy 628.

And Lindwood fays, heretofore the law was, that the,
burial of a dead perfon might be delayed for debt ; but^
this was afterwards abolifhed ; for death diftbU'^th all ^
things ; and albeit a man in his life time may in fome .
cafes be imprifoncd for debt, yet his dead body fhall not
be diftunbed. Lind. 278.
^ And this feemeth to be implied in the ftatute of the^

'X2 G, 2. c. 28. which requires the bailiff arrefting any
perfon for debt, not to carry him to any alehoufc or other
fucli place without his free confent ; and requires the
baiiifF to deliver to the perfon arrcfted, a copy of the
claufes in the faid adl relating to arrefts ; and many other
fiich particulars : none of which are in any rcfpeiSl appli- -
cable to a dead p<^fc)ni

But

ii^ttr^aL 237

But altho' the interment of a dead perfon may njot be
Mndred for debt, yet after attain3er for treafon or felony,
md before execution, a perfon, tho' in fome refpedts he
is faid to be ctviiiter mortuus, yet is liable to be charged ac
Ae fuit of his creditors. As was the cafe of yEnei3s M(U-^^
fbnald, attainted of treafon committed by him in the yeai^^
1^45. Upon which occafion Sir Michael FoJIer obferve$;'
that the perfon of a man under attainder Is not abiolutely
it the difpofal of the crown. It is fo for the ends of
publick juftice, but fbr no other purpofe. The king may
order execution to be done upon him according to law»
notwithftanding he may be charged in cuftody at the fuit
of creditors. But till execution is done, his creditors
have an intercft in his perfon for fecuring their debts*
And he himfelf as long as he liveth, is under the protec-
tion of the law. To kill him without warrant of law is
murder ; for which the murderer- is liable to a profecu-
tion at the fuit of the crown, and likewife to an appeal
at the fuit of the widow. For tho' his heir is barred by
the attainder^ which corrupteth his blood, and diiTolveth
all relations grounded on confanguinity, yet the relation
grounded on the matrimonial contra6t continueth till
death. And if a perfon under an attainder be beat or
maimed, or a woman in the like circumftances ravifhed,
they may, after a pardon, maintain an a£lion or appeal,
as their cafes refpe<aively may require. And tho' before
a pardon, they are difabled to fue in their own names,
there feems to be no doubt but that they are intitlcd to
profecute, according to the nature of their refpedlive cafe<r,
in the name of the king ; who will do equal right to all
his fubje£ls. Fojier's Crown law 62.

In the fame year i;^4.5, a remarkable cafe happened
after the rebel affizes at Carlifle, where fome of the rebels
<lied after their attainder, and before execution. The
tjueftion was. Whether they fhould be admitted to chrif-
tian burial f And the then lord bifhop of the diocefe
retjuefted the opinion of a very learned gentleman ; who
made the following remarks and extracts for his lordfliip's
confideration :

It is certain, that after execution, the bodies being at-
the king's difpofal, are, for the publick example, and for
the greater terror unto others, never admitted to chriftiah
burial; and this feemeth to have been the law of the
^urch of England from two ancient canons, by the for*-
Jticr of which it is ordained as follows ; Concerning thofc
I vjho

238 Bttti'^l.

wfjQ by any fauh infl^ death upon themfelves^ let thire hinh I
commemoration of them in the oblation^ as likewife for thent \
who are putiifljed for their crimes ; nor Jhall their corpfes he \
carried unto the grave with pfalms. By the latter — If any i
Jhall Voluntarily kill himfelf by arms^ or by any injiigation of
the de-vil^ it is not permitted that for fuch a perfon any mafjes
he flings nor pall his body be put into the ground with any
finging of a pfalm^ nor Jhall he be buried in pure fepulture.
The fame Jhall be done to him^ who for his guilt endeth his
life by torments, as a thief murderer, and betrayer of his
lord. Canones editi fub Edgaro rege : Wilk. Concil*
V. I. p. 225, 232. Johnf. A. D. 740. No. 96. and
A. D. 963. No. 24.

But before execution, the cafe feemeth to be difFerent,-
Mr. Hawkins fay^, the judgment in high treafon is, that
he fhall be carried back to the place from whence he
came, and from thence be drawn to the place of execu-
tion, and be there hanged by the neck, and cut down
alive, and that his entrails be taken out and burnt before
his face, and his head cut off, and his body divided into
four quarters and difpofed of at the king's pleafure, 2 Hawi

443'

And lord Coke C^ys ; Albeit judgment be given againft

a man in cafe of treafon or felony, yet his body is not
forfeited to the king, but until execution remaineth his own y
and therefore before execution, if he be flain without au-,
thority of law, his wife (hall have an appeal ; for not-
withftanding the attainder he remained her hufband. 3
7«/?. 215.

So if a man commit treafon, and after judgment be-
come of non fane memory, he fhall not be executed ; for
it cannot be example to others. 3 Injl, 4.

So if the gaoler k<;ep a prifoner more ftraightly than he
ought of right, whereof the prifoner dieth, this is felony
in the gaoler by the common law ; and this is the caufe,
that if a prifoner die in prifon, the coroner ought to fit
upon him. 3 In/I. 91.

And particularly that the church admitteth fuch perfons
to chriftian burial, fccmeth fomewhat evident, in that (he
admits them to the receiving of the holy communion,
and other rites of the church, during the time of their
condemnation, and approves of the niinifters of the church
of England attending them to the laft extremity. — And
thefe rebels were admitted to chriftian burial.
Burylnsinwool- 5' ^Y the 36 C, 2. Jf, I. c. 3; For the encouragement
len. of the woollen manufactures, and prevention of the ejfr-

portation

Btttfai; 239

portatlon of money for the importing of linen, it is en^
zdled, that no corps of any perfon fhall be buried in any
fhirt fhift ftieet or fhroud or any thing whatfoever made
or mingled with flax hemp filk hair gold or filver, or in any
ftufF or thing, other than what is made of (liecp's wcci
^ly -y on pain of 5 1. /, 3.

. And all perfons in holy orders, deans, parfons, deacons,
vicars, curates and their fubftitutes, fhall take an account
^^nd keep a regifter of every perfon buried within their
refpe6tive precincSls, or in fuch common burial places a$
their refpe£tive parilhioners are ufually buried j and one
of the relations of the party deceafed, or other credible
perfon, fliall within eight days next after the interment,
bring an affidavit in writing under the hands and feals of
two or more witnefl'es, and under tiie hand of the magif-
|rate or officer before whom the fame was fworn (for
which nothing fhall be paid), to the minifler or parfon,
that the faid perfon was not put in wrapt or wound up or
buried, in any fhirt fhift fheet or fhroud, made or mingled
with flax hemp filk hair gold or filver, or other than what
i$ made of fheep's wool only ; or in any coffin lined or
faced with any cloth ftufF or any other thing, made or
mingled with flax hemp filk hair gold or filver, or any
other material, but fheep's wool only : And if no relation
pf the party buried or other perfon fhall bring an affidavit
as aforefaid to the parfon or minifler within the time afore-
faid, then the goods and chattels of the party deceafed
fhall be liable to the faid forfeiture of 5 1 ; to be levied by
way of diftrefs and fale thereof, by warrant of the chief
magiftratc in a town corporate, or any juftice of the
peace ; or in default thereof, by like diftrefs and fale of
the goods of the perfon in whofe houfe the party died,
or of any that had a hand in putting fuch perfon into any
fhirt fhift fheet fhroud or coffin contrary to this act, or
did order or difpofe the doing thereof; and in cafe fuch
perfon were a fervant, and died in the family of his maf-
ter or miflrefs, the fame fhall be levied on the goods of
fuch mafler or miftrefs ; and if fuch perfon died in ths
family of his father or mother, then the fame to be levied
on the goods of fuch father or mother : which faid
forfeiture fhall be levied paid and allowed out of the
eflate of the deceafed perfon, before any flatute judgment
debt legacy or other duty whatfoever. f. 4.

The faid affidavit to be made or taken before a juflice
of the peace, or mafler of chancery, mayor or other chief
officer of the city county borough corporation or market

town

240 J6ttri'al.

town, where the party was buried ; who fhall admihiftfer
the faid oath, and attefl the fame under their hands updti
fuch aiEdavit gratis : And if no fuch affidavit fhall be
brought to the minifter where the party was buried with-
in eight days, fuch minifter fhall forthwith givfe or cauffe
notice thereof to be given in writing under his hand, to
the churchwardens or overfeers of the poor of fuch pa-
rifh ; who fhall within eight days after fuch notice, re-
pair to the chief magiftrate in a town corporate, if futh
party was buried there, or elfe to any jufticd of the p^ace,
who upon the certificate thereof from fuch minifler, fhail
forthwith grant a warrant for the levying the forfeiture^
Half of which forfeitures fhall be, to the poor of the pa«k
rifh where the party fhall be buried, and half to him that
fhall fue for the fame ', to be recovered by warrant of tht
chief magiftrate or any juftice of the peace, in the citf
town corporate or county where fuch party was buried.

And if any minifter fhall neglect to give notice to th6
churchwardens or overfeers of the poor as aforefaid, ot
not give unto them a note or certificate under his hand
teftifying that fuch affidavit and certificate was not brought
to him within the time limited ; or if the churchwardens
or overfeers of the poor fhall not within eight days aftef
the receipt of fuch certificate, repair to fuch chief ma*
giftrate or juftice of the peace with fuch certificate, and
{hew the fame to him, and demand his warrant thereupon
for levying the forfeiture ; and if fuch chief magiftrate ot
juftice of the peace fhall negle6t his duty in not ifTuing
his warrant for levying the fame : he fhall forfeit 5 I, to
be recovered by him that fhall fue, with full cofts, fo as
the fuit be commenced within fix months ; one fourth to
the king, two fourths to the poor of the parifh where the
offender fhall dwell, and one fourth to him who fhall fut,
/6.

And the minifter of every parifh fhall keep a regifter,
in a book to be provided at the charge of the parifh, and
make a true entry of all burials within his parifh, and of
all affidavits brought to him as aforefaid ; and where no
fuch affidavit fhall be brought to him within fuch time, he
ihall enter a memorial thereof in the faid regiftry, againft
the name of the party interred, and of the time when he
notified the fame to the churchwardens or overfeers of the
poor, f. 7.

And when the overfeers do give up their accounts tO
the jufticcs, they fhall give an account -pf the name and

(quality

TBmiah 241

quality of every perfon interred within the parifh from the
time of their former account, and of fuch certificates as
cSfne to their hands from the minider of the faid parifh,
and of their levying the penalties, and of the difpofal
thereof: on pain of 5I. by warrant of diftrefs by the faid
juftices or two of them : and no account of the faid over-
feers of the poor fhall be allowed, until they fhall there-
in account for the burials within their refpcdlive parifhes
as is before directed, f. 8.

Provided, that no penalty Ihall be incurred by reafon
of any perfon that died of the plague, f. 9.

And by the 32 C. 2. c, i. Where no juftice of the
peace fhall refide or be to be found in any parifh where
any perfon fhall be interred ; the parfons vicars and
curates in every parifh or chapel of eafe, within the
county where any party fhall be interred (except only
the parfon vicar and curate of the parifh or chapel of eafe
where the party is interred) fhall adminifter the faid oaths
or affidavits, and attefl the fame under their hands gratis,
f. 3.

Form of the aforefaid afHdavit.

Weflmorland. T^E it remembred, that on the — day of

•^ — — A. W. of yeoman^

and^.W, of '■ — yeoman f being two credible perfons^ do

make oath^ That A. D. late of in the parijh of

in the county aforefaid^ on the • day of this prefent month
! of was not put in^ wrapt or woundup^ or buried

\ zn any Jhirty Jhift^ Jheet^ or Jhroudy made or mingled with
, fax^ hempy ftlk^ hair^ goldy or fiver ^ or other than zvhat is
I made of Jheep*s wool onfyy or in any coffin lined or faced with
I any clothy fluffy or any other thing whatfoever made or mingled
{ with fax y hempy flky hairy goldy or fiver y or any other ma-^
Urial but Jheep's wool only.

Sworn before mCy being one of his majefl/s
jufices of the peace for the faid county
[or, vicar of in the faid coun-

tyy there being nojufiice of the peace re-
fiding {or to be found) in the faid pa-
rijh of ■ ] the day and year abovjc^
faidy J,P,

A.W.
B. W.

01. I. R Form

242 jBttttai.

Form of the minifter's notice of the affidavit not
being brought.

To the churchwardens and overfeers of
Weftmorland. -J the poor of the parifli of — in the
faid county.

/A. M. ?mni/Ier of the par'ijh of aforefaid^ in the

county aforefaid^ do hereby give you notice^ that on the — - "

day of' the body of A. D. was buried within the faid

parifiy and that 710 perfon whatfoever hath brought to me an^
affidavit ptcrfuant to the flatute made for burying in woollen^
Witnefs my hand^ the day of y ,

Minifternotto 5, Can. 68. No minifler Jhall refufe or delay ^ to bury any
refute bunal. ^^^^^ ^^^^ ^^ brought to the church or churchyard (convenient
warning being given him thereof before) in fuch manner and
form as is prefer ibed in the book of common prayer. And if he^
Jhall refufe fe to do^ except the party deceafed were denounced
excommunicated major i excommunicatione^ for fame grievous and
notorious crime ^ and no man able to tefiify of his repentance ; he
/hall be fufpended by the hijhop of the, diocefe from his minijiry^
by the /pace of. three fnonths.

Were denounced excommunicated'\ But by the rubrick be-
fore the office for burial of the dead, the faid office like-
wife fhall not be ufed for any that die unbaptized, or that
have laid violent hands upon themfelves.

And no man able to tefiify of his repentance] But where
fufficient evidence did appear to the bifhop of fuch per-
fon's repentance; commiffions have been granted, both
before and fmce the reformation, not only to bury per-
fons who died excommunicate, but in fome cafes to ab-
folve them, in order to chriftian burial, Gibf 450.

There"were anciently other caufes of refufal of burial ;
particularly, of hereticks, againft whom there was an efpe-
cial provifion in the canon law, that if they continued in
their hercfy, they fliould not have chriftian burial : Of
v/hich we have a remarkable inftance a little before the
reformation, in the cafe of one Tracey, who was pub-
lickly accufed in convocation of having exprefled hereti-
cal tenets in his will ; and being found guilty, a com-
miffion was ifTued to dig up his body, which was accor-
dinglv done.

Alfd

Bntm, 243

Alfo perfons not receiving the holy facrament^ at lead at
tajier^ were excluded from chriflian burial by a decree of
:he fourth Lateran council, which became afterwards a
:aw of the Englifh church.

In like manner, perfons killed in duels y ,tilts or tourna^
ntnts.

But at this day it feemeth, that thefe prohibitions are
tftrained to the three inftances before mentioned 5 of
)erfons excommunicate, unbaptized, and that have laid
/iolent hands upon themfelves.

And of this laft fort are to be underftood, not all who
iave procured death unto themfelvesj but who have done
t voluntarily, and confequently have died in the commif-
fidn of a mortal fin ; and not idiots, lunaticks, or perfons
Dtherwife of infane mind.

The firft ecclefiaftical rule which occurreth as to this
matter, is the 34th canon of the firft council of Braga^ in
the year 563 : which forbids any burial fervice for thofe,
lui violentam fthi ipjis inferunt mortem. But in Wilkins's
Councils, Vol. I. p. 129. the fifth chapter of the 2d
book of the Pcenitential of Egbert archbifhop of Tork^
\ kvritten about the year 750 (which chapter is plainly ta-
Iten from the canon of Braga) adds this limitation. If they
io it by the injiigatton of the devil. And at p. 232, the fif-
teenth of the canons publilhed in king Edgar's time,
about the year 960, adds a further limitation. If they do it
" voluntarily^' by the infligation of the devil. Thefe two
authorities, TVheatley on the common prayer quotes from
Johnfon's colle6tion, to prove, that our old ecclefiaftical
laws make no exception, in favour of thofe who kill them-
felves in diftra6lion. But they prove, even as they ftand
in fohnfon^ that fuch were not comprehended under thofe
laws. And accordingly, the Decretum of Gratian, Part
2d, Caus. 23. Qu. 5. Cap. 12. inferting the canon of
Braga, adds to it voluntarie. And the note there is, fe-
£Ut, fi per furorem : tunc non imputaretur.

Now we ftiould not, without neceflity, underftand our
own rubrick to be fo much feverer, than the preceding
conftitutions, as to place mad people in the fame rank
with excommunicate and unbaptized perfons, and to pu-
nilh a poor creature for what in him indeed was no crime.
The proper judges, whether perfons who died by their
own hands were out of their fenfes are, doubtlefs, the
coroner's jury. The minifter of the parifli hath no au-
thority to be prefent at viewing the body, or to fummon
or examine witneiTes. And therefore he is neither inti-

R 2 tied.

244- Btttfal*

tied, nor able to judge in the alFair; but may well ac-
quiefce in the publick determination, without making any
private inquiry. Indeed, were he to make one, the opi-.
nion which he might form from thence, could ufually be
grounded only on common difcourfe, and bare affertion.
And it cannot be juftifiable to adl upon thefe, in contra-
diction to the decifion of a jury, after hearing witnefles
upOn oath. And tho' there may be reafon to fuppofe^
that the coroner's jury are frequently favourable in their
judgment, in confideration of the circumftances of the
deceafed's family with refpe6t to the forfeiture ; and their
verdid is in its. own nature traverfable : Yet the burial
may not be delayed, until that matter upon trial fhall fi-
nally be determined. But on acquittal of the crime of
felf -murder by the coroner's jury, the body in that cafe
not being demanded by the law ; it feemeth that a cler-
gyman may and ought to admit that body to chriftian
burial.

Offite of burial. ?• ^V ^^^^ rubrick ; The priefts and clerks meeting the
corps at the entrance of the churchyard, and going before
it either into the church, or towards the grave, ihall fay as
is there appointed.

By which it feemeth to be difcretionary in the mi-
nifter, whether the corps fhall be carried into the church
or not. And there may be good reafon for this, efpe-
cially in cafes of infedion.

Ringing at func- 8. Can. 67. After the party's death, there fhall be

"'5' rung no more but one fhort peal, and one before the bu-

rial, and on<3 other after the burial.

Fee for burial. 9. Langton. //^ do Jirmfy injoin^ that burhal Jhall not hi
denied to any one, upon the account of any fum of money : bi^
caiife if any thing hath been acciifloined to be given by the pious,
devotion cf the faithful^ we will that jujiice be done thereuft
to the fhurches by the ordinary of the place afterwards.

Shall not be denied} Or delayed. Z/W. 278.

Upon the account of any fum of money"] For burial ought
not to be fold : But albeit the clergy may not demand any
thing for burial, yet the laity may be compelled to ob-
ferve pious and laudable cuitoms. But in fuch cafe, Xht
clerk muft not demand any thing for the ground, or for
the office ; but if he fliall allcdge, that for every dead
pcrfon (o much hath been accuftomed to be given to the
mi nifter or to the church, he fhall recover it. Lind,

278.

Bttrt'ali 245

Hath been accuftomed to he given] That is, of old, and
for fo long time as will create a prefcription, altho' at
firfl given voluntarily. For they v^^bo have paid fo long,
ire prefumed at firfi: to have bound themfelves voluntarily
thereunto. Llnd. 279.

T, 15 7«. Topfal TinA Ferrers, Edward Topfal, clerk,
jarfon of St Botolph's without Alderfgate, London, and
:he churchwardens of the fame, libelled in the ecclefiafti-
:ai court againft Sir John Ferrers, and alledged, that there
ivas a cuftom within the city ot London, and efpecially
'within that parifh, that if any perfon being man or wo-
,man die within that parifh, and be carried out of the
parifh to be buried elfewhere, in fuch cafe there ought to
be paid to the parfon of this parifh if he or fhe be buried
elfewhere in the chancel fo much, and to the church-
wardens fo much, being the fums that they alledged were
by cuflom payable unto them, for fuch as were buried in
I their own chancel ; and then alledging, that the wife of
Sir John Ferrers died within the parifh, and was carried
away and buried in the chancel of another church, and
fo demanded of him the faid fum. Whereupon for Sir
John Ferrers a prohibition was prayed, and upon debate
it was granted, for this cuftom is againfl reafon, that he
that is no parifhioner, but may pafs thro' the parifh, or
lie in an inn for that night, fhould if he then die be forced
to be buried there, or to pay as if he were, and fo upon
the matter to pay twice for his burial. Hob. 175.

But Dr Gibfon faith, a fee for burial belongs to the
minifler of the parifh in which the party deceafed heard
divine fervice, and received facraments, wherefoever the
corps be buried. And this, he obferves, is agreeable to
the rule of the canon Jl^w, which fays, that every one,
after the manner of the patriarchs, fhall be buried in the
fepulchre of his fathers ; neverthelefs, that if any one
defires to be buried elfewhere, the fame fhall not be hin^
dred, provided that the accuflomed fee be paid to the mi-
nifler of the parifh where he died, or at leafl a third part
of what (hall be given to the place where he fhall be
buried. For the underftanding of which it is to be poted,
that anciently all perfons in their wills, made a fpccial
oblation or becjuefl to the church at which they were to
be interred ; and the people in thofe days depending
much upon the prayers of the living for the good of their
fouls after death, thofe of better condition coveted often-
times to be buried in religious houfes, with a view to
greater afTiflances which they hoped to receive from tho

R 3 folema

246 ai^utfal.

folemn and conilant devotions there : alfo, where the
oblations were like to be plentiful, the religious were led
by that profpecl to defire and promote it. By which
means parochial minifters would have been deprived of *
what belonged of common right to them, and to no other j
if the laws which indulged the fuperftitious conceit of
being buried in religious houfes, had not at the fame time
provided for the ancient parochial rights ; which fome-
times was the third, fometimes the fourth part (according
to the cuftoms of different places) of what was given to
the religious houfes : the laws probably prefuming, that
the oblations to thofe houfes would be much larger, than
what was ufually given to the parochial minifters. Gibf, '

452.

And this was called the canonical portion ; and the
oblation grew by cuftom into a fixed right of the parifh
minifter. And hence it is, that in difpenfations for bury-
ing elfev/here, refervations have been made of the rights
of thofe churches where the parties die. And (to take
off the weight in fome meafure of the faid cafe of Topfal
and Ferrers) he faith, that this right was not denied, but
feemingly acknov/Iedged, by the temporal court in the
afcrefaid cafe ; where the fuit, by the redlor and church-
wardens of St Botolpb's Aldgate was for the cuftomary
fee of burying in the chancel there, becaufe the perfon ^
died in their parifh, and was buried in the chancel elfe-
where. For tho* a prohibition was granted becaufe tho.^
cuftom was unreafonable, yet that unreafonablenefs (he
fays) was grounded upon the perfon's being only a ftranger, ,
and happening to die in the parifti. For fo the report it
fclf cxprefTes the ground of the prohibition, '^ This cufr
'' torn is againft reafon, that he who is no parifliioner,
" but may pafs thro' the parifh, or lie in an inn for a
*' night, fhouid be forced to be buried there, or pay as
" if he were." Which is, in efte6t, a recognition of the
right, in cafe the party deceafed hath dwelling in the pa-
rifh, and is a parifhioner. Gibf. 452. [But this doth
not fo well comport with the laft words of the recited
cafe, which fuppofcth it to be unreafonable for a man to
pay twice for his burial.]

The proportion of fees due for the burial of perfons,
whether to the incumbent or churchwardens, whether for
burying in or out of the parifh, depends upon the parti-
cular ufage and cuftom of each parifh refpedively. For
as to the incumbent for burying, the foundation of the
fee was voluntarj^, and ihe obligation or nccclTity of pay-

infi; ■
4-

TButiah 247

ing arises from cuftom ; which is the ground of what is
before obferved out of Lindwood. But altho* the rule of
the canon law is, that in cafe of denial of the cuftomary
fee, juftiee is to be done by the ordinary; and tho' the
books of the common law allow this to be, in its nature,
a matter properly of fpiritual cognizance, yet it is a very
great abatement from that allowance that the temporal
courts referve to themfelves the right of determining, firft.
Whether there is fuch a cuftom, in cafe that is denied j
and, fecondly. Whether it is a reafonable cuftom, in cafe
the cuftom itfelf is acknowledged. Upon the firft of thefe
heads, a prohibition was granted, in the cafe of Andrews
and Symfon^ M, 27 C 2. in which, two grounds were
laid down of granting prohibitions $ for defeat of jurifdic-
tion, and for defeat of trial : and the prohibition granted
on this occafion was ranked under the fecond head, and
compared to the cafe of a modus decimandi, which may
be demanded in the fpiritual court, but if the cuftom be
denied, a prohibition will lie ; becaufe the rule of pre-;
fciption is different in the fpiritual court, from that in the
temporal. And on the like denials, we find other prohi-
bitions alfo granted ; as where the church of Weftminfter,
for burying in the abbey, demanded 50 1, and the cathedral
of York 5I, over and above the common it^s. Upon the
fecond of thefe two heads, viz. the unreafonablenefs of the
cuftom, a prohibition was granted in the forementioned
cafe of Topfal and Ferrers^ where the fame fees were claim-
ed by the rediors and churchwardens of the parifli out of
I which the corps was carried, that were ufually paid there
I for the place in which the corps (hould be buried elfewhere.
; But tho' fuch demand was reckoned a hardftiip upon a
' ftranger or traveller who fhould happen to die there ; no
fault was found with the rule or proportion of the fee, in
cafe the party deceafedhad been a fixed pariftiioner. Gibf^
453. 2 Keb. 778. 3 Keb. 523.

But here it is to be obferved, that in the foregoing cafe
of Andrews and Symfon, the demand was a fee of four
nobles for a parifhioner, and of four marks for a ftranger ;
which proportion and difference were not excepted againft
by the court as unreafonable, but (as hath been faid) the
■prohibition went only becaufe the cuftom was denied,
Gibf. 453.

10. Funeral expences, according to the degree and Fancral charge,
quality of the deceafed, are to be allowed of the goods of
^^^e deceafed, before any debt or duty whatfocvcr. 3 Inji,

K^ ' R 4. ti. The

248

25ttr<a!*

Stealing ihroud.

Monuments*

T I . The carcafe that is buried belongcth to no one ; but
is fubjedt to ecclefiaftical cognifance, if abufed or re-»
moved. 3 Injl, 203.

And a corps once buried, cannot be taken up, or re-
moved, without licence from the ordinary. G'thf, 454.

That is, to be buried in another place, or the like :
but in the cafe of a violent death, the coroner may take
up the body for his infpediion, if it is interred before he
comes to view it.

In the lent afllzes holden at Leicefter, \\ l^ l^ Ja,
the cafe was, one William Haines had digged up the fe-
veral graves of three men and one woman in the night,
and had taken their winding (heets from their bodies^
and buried them again ; and it was refolved by the juftices
at ferjeants inn in fleet ftreet, that the property of the
fheets remained the owner's, that is, in him who had the
property therein, when the dead body was wrapped there-
with, for the dead body is not capable of it j and that the
taking thereof was felony. 12 C(7. 113.

12. Lord Coke fays^ concerning the building or ere£^ing
of tombs, fepulchres, or monuments for the deceafed, in
church, chancel, common chapel, or church yard, in con-
venient manner, it is lawful 5 for it is the laft work of cha-
rity that can be done for the deceafed, who whilft he lived
was a lively temple of the holy ghoft, with a reverend re-
gard and chriftian hope of a joyful refurre£lion. And the'
defacing of them is puniihable by the common law ; as it
appeareth in the book of the 9 Ed, 4. 14. (the lady Wicbe*s
cafe, wife of Sir Hugh Wiche ;) and fo it was agreed by
the whole court, M. 10 Ja. in the common pleas, be-
tween Corven and Pym. And for the defacing thereof,
they that build or eredt the fame (hall have the a6li(3n du-
ring their lives (as the lady Wiche had in the cafo«itthe
9 Ed. 4.) and after their dcceafes, the heir of the deceafed
fliall have the adlion. But the building or erecting of the
fepulchre, tomb, or other monument, ought not to be to
the hindrance of the celebration of divine fcrv ice. 3 /w/?.

202.

And again, he fays, if a nobleman, knight, efquire,
or other, be buried in a church, and have his coat armour
and pennions with his arms, and fuch other enfigns of
hooour as belong to his degree or order, fet up in the
church ; or if a grave ftone or tomb be laid or made for a
monument of him : in this cafe, altho' the freehold of the
church be in the parfon, and that thefe be annexed to the
frceho^l j yet* cannot the parfon or any other take them:

JSittfai. 249

or deface them, but he is fubjeft to an a£^ion to the heir
and his heirs in the honour, and memory of whofe ancef-
tor they were fet up. i InJ^, 18.

But Dr. JVatfon fays, this is to be underftood of fuch
monuments only, as are fet up in .the iles belonging to
particular perfons ; or if they are fet up in any other part
of the church, he fuppofeth it is to be underftood, that
they were placed there with the incumbent's confent*
IVatf. c. 39.

And Dr Gibfon obferving thereupon faith thus : Monu-
ments, coat armour, and other enligns of honour, fet up
in memory of the deceafed, may not be removed at the
pleafure of the ordinary or incumbent. On the contrary,
if cither they or any other perfon fhall take away or de-
face them, the perfon who fet them up Ihall have an adtioo
againft them during his life, and after his death the heir
of the deceafed fhall have the fame, who (as they fay) is
inheritable to arms and the like, as to heir-looms ; and it
avails not, that they are annexed to the freehold, tho*
that is in the parfon. But this, he fays (as he conceiveth,)
is to be underftood with one limitation. If they were firft
fet up with confent of the ordinary ; for tho' (as my lord
Coke fays) tombs fepulchres or monuments may be erec-
ted for the deceafed in church or chancel in convenient
manner, the ordinary muft be allowed the proper j udge
of that conveniency ; inafmuch as fuch eredling (for fo
he adds) ought not to be to the hindrance of the celebra-
tion of divine fervice ; and if they are erected without
confent, and upon inquiry and infpedtion be found to the
hindrance of divine fervice, it will not (he fuppofeth) be
denied, that in fuch cafe the ordinary hath fufficient au-
thority to decree a removal, without any danger of an
adlion at law. Qibf 453, 454.

Whether a fee is due to the incumbent for ere£ling a
grave ftone or monument in the churchyard, hath been
queftioned by fome ; and no cafe hath occurred wherein
the fame hath received a judicial determination. It feem-
eth to be an argument in favour of the incumbent, that
altho' it is neceflary to bury the dead, yet it is not necefTary
to eredl: monuments : and after the foil hath been broken
for interring the dead, the grafs will grow again, and
continue beneficial to the incumbent ; but after the erec-
tion of a monument, there ceafeth to be any further pro-
duce of the foil in that place. And if the incumbent's
leave is neceJTary for the ercding a monument, it feemeth
tbat he may prefcribe his own reafonable t^rms ; or if an
2 accuftomed

?5o Bttti'ai.

accnftotned fee hath been paid, that fuch cuftom ought to
be obferved.
Pe^ifh burial. 13. By the 3 J, c, 5. If any popifh recufant, man or
woman, not being excommunicate, fhall be buried in any
place, other than in the church or churchyard, or not ac-
cording to the ecciefiaflical laws of this realm ; the execu-
tors or adminiftrators of fuch perfon buried, knowing the
fame, or the party that caufeth him to befo buried, fhall
forfeit 20 1. one third to the king, one third to him that
!fliall fue in any of the king's courts of record, and one
third to the poor of the parifh where fuch perfon died.

Calendar. See iBtaleittia^

Calumny. (Oath of.) See flDatljSf.

Cambridge. See CoUegeg.

Canon*

O R the office of canons^ in cathedral or collegiate
churches 5 fee SDCaU?! aull tljaptet?*

Capa.

r^APJy the cope^ was one of the priell's veftmentsi fo
^ called, as it is faid, a capiendo^ becaufe it containeth
pr covereth him all over. Lind, 252.

Carthufians. See ^OnaffCtfe^*

Ca(uia<

Caftiia*

_ SULJ^ the cheftbky was a garment worn by the;
prieft, next under the cope ; and is faid to have been
called, as being a kind oi cottage (as it were) or little
houfe, covering him. Lind. 252.

Catccixfm*

I. T3 Y Can, 59. Every parfon vicar or curate, upon
j3 every funday and holiday before evening prayer,
fliall for half an hour or more, examine and inftrudt the
youth and ignorant perfons of his parifh, in the ten com-
mandments, the articles of the belief, and in the lord*s
prayer; and Ihall diligently hear inilru6i: and teach theni
the catechifm fet forth in the book of common prayer.
And all fathers, mothers, maffcers and miftrefTes fhall
caufe their children, fervants, and apprentices, which
have not learned the catechifm, to come to the church at
the time appointed, obediently to hear, and to be ordered
by the minifter until they have learned the fame. And if
any minifter neglecSt his duty herein, let him be fharply
reproved upon the firft complaint, and true notice thereof
given to the bifhop or ordinary of the place. If, after
fubmitting himfelf, he (h^Il willingly offend therein again ;
let him be fufpended. If fo the third time, there being
little hope that he will be therein reformed ; then excom-
municated, and fo rernain until he be reformed. And
likewife if any of the faid fathers, mothers, mafters or
miftrefTes, children, fervants or apprentices, fhall negle^l:
their duties, as the one fort in not caufing them to come,
and the other in refuiing to learn, as aforefaid ; let them
be fufpended by their ordinaries (if they be not children,)
and if they fo perfift by the fpace of a month, then let
them be excommunicated.

2. And by the rubrick : The curate of every parifh fhall
diligently upon fundays and holidays, after the fecond
lefTon at evening prayer, openly in the church inftrucSt
and examine fo many children of his parifh fent unto him,
as he fhall think convenient, in fome part of the cate*
cbiim.

And

%2 catet!)<fm.

An5 all fathers and mothers, matters and dames, fhall
caufe their children fervants and apprentices (which have
not learned their catechifm,) to come to the church at the
time appointed, and obediently to hear, and be ordered
by the curate, until fuch time as they have learned all
that therein is appointed for them to learn.

3. That part of the church catechifm which treats of
the facraments, is not in the 2d nor 5th of Ed. 6. but was
added in the beginning of king James the firft his reign,
upon the conference at Hampton court, {jibf. 375.

4. In the office of publick baptifm ; the minifter ^\-
rc£leth the godfathers and godmothers to take care, that
the child be brought to the bifhop to be confirmed by him,
fo foon as he or fhe can fay the creed, the lord's prayer,
and the ten commandments in the vulgar tongue, and be
further inftru£led in the church catechifm fet forth for
that purpofe.

CatDenjals.

Origin of cathe- r, A F T E R the converfion of Conftantine the em-

^*^*» jTjL peror, the other converts in thofe days and in the

following times, who were many of them governors and

nobles, fettled great and large demefne lands on thofe who

converted them, and the firft oratories or places of publick

worfhip are faid to have been built upon thofe lands :

which firft oratories were called cathedra^ fedes \ cathedrals^

fees ^ or feats '^ from the clergy's conftant refidence thereon.

God, 347.

Difference be- a, The diftin£lion between cathedral, conventual, and

tvrcen cathedral, cQllegiate chuiches, perhaps may be beft underftooH, from

collegiate* * the defcription given by Lindwood of the feveral names :

churches. properly fpeaking, fays he, a chapter is fpoken in ref-

pe6t of a cathedral church ; a convent, in refpeft of a

church of regulars ; a college, in refpe£l of an inferior

church, where there are colleded together perfons living in

common. Gibf. 172.

Cathedral ^^ The fees of bijhops ought regularly to he fixed in fuch totUns

Cn civics.' ^° * ^"6' ^^ ^^^ "''^^^ and populous. When this was made a rule

of the church by a canon of the council of Sardica, the

only defign feems to have been, to prevent the needlcfs

multiplication of billiops fccsj inafmuch 4s that canon,

dcfcribing

defcribing fuch a fmall city, as within which a bifliop*s fee
fhould not be eftablifhed, calls it fuch a one as a fingle
prefbyter might be fufficient for, in point of numbers.
But it was afterwards underftood by the canon law, that
of what extent, or how populous foevef, the diocefe or
jurifdidtion of a bifliop might be, it was moft agreeable to
the epifcopal dignity, to place the fee or cathedral church
in fome arge and confiderable town. Purfuant to which,
with exprefs reference to the aforefaid council, and to the
decrees of pope Leo and pope Damafus, it was decreed ia
a council under archbifhop Lanfrank, that certain epifco-
pal fees which before had been in fmall towns and vil-
lages, fliould be fettled in the moft noted places j and fe-
veral were accordingly removed, as Dorchefter to Lincoln,
Selfey to Chichefter, Kirton to Exeter : which rule was
alfo obferved in fixing the fees of the five new bifhopricks
ere£led by king Henry the eighth. Gibf, 171.

And every town which hath a fee of a bifhop placed in
it, is thereby intitled to the honour of a city. Gihf, 171.

And lord Coke defineth a city thus : A city (faith he)
Is a borough incorporate, which hath, or hath had, a bi-
fhop j and tho' the bifhoprick be diflblved, yet the city
remaineth. i InJI. 109.

But this extendeth not to the cathedral churches In
Wales ; divers of which are eftablifhed in *mall villages.

4. Befides the proper revenues of cathedral churches, to Certain forfeit
be applied towards the repair thereof, there are divers for- ^air'orc'^h'^"
feitures by feveral canons of archbiftiop Stratford, to be drals.
difpofed of to the fame purpofe 5 to wit, for the unfaithful
execution of wills ; for extorting undue fees for the pro-
bate of wills; for undue C9mmutation of penance; and

half the forfeitures for exceffive fees at the admiilion of a
curate.

5. Every fee or cathedral (as fuch) Is exempt from ar- Cathedral et-
chidiaconal jurifdiaion. Thus a bifhop's fee having been "Xe^L^l^'s^ja.
newly ere<Sled within the limits of a certain archdeaconry, rifdiaion*

it was reprefented, that the archdeacon had prefumed to
exercife his jurifdidlion over the biftiop there confecrated,
and the church : and Gregory the ninth decreed there-
upon, that this fhould no more be done, but that the bi-
fhop fhould be exempt from the archidiaconal jurifdidtion :
which decretal epiftle became part of the body of the canon
law. Gihf, 171.

6. For the freedom of eleftlons in general, it was thus "Eleftiom la <:a-
provided by the ftatutc of the 3 £^. i. c. 5. Becaufe elec- '^'^'^"^**

fns ought to hefne^ thg king commanddh u^on gr eat forfeiture^

254- CatDeua^is*

ihtttm man hy force of ai^ms^ nor hj malice^ or menacing^ JhaJl
dijlitrh any to make free eledion.

Which ftatute, being gfeneral, did evidehtly include ec-
cldiaftical ele6liortS ais well as others ; but fome doubt
having probably b6en made, whether they were included,
it was judged advifeable to move the king for a fpecial de-
claration to that purpofe, in the articuli cleri^ 9 Ed. 2. c.
14. If any dignity he Vacant ^ where deSfion is to be Made^ it
is moved that the ele£iors may freely make their ele^ion^ with-
out fear of any temporal power ^ and all prayers and opprejftons
Jhall in this behalf ceafe. The anfcuer ; They Jhall be made
ffet according to the form of flatutes and ordinances : that is,
according to the faid ftatute of the 3 Ed. i. r. 5. \Vhich
alfo was but declaratot-y of the comrtioh law. 2 Injl, 169,
632. Gibf, 175.

And by the 31 Eli%, c. 6. it is thus ena£ied : Whereas
ly the intent of the founders of cathedral and collegiate churches^
and by the flatutes and good orders of the fame ^ the eleSlions pre^
fentations and no?ninations of officers and other perfons to have
toom or place in the fame ^ are to be had and made of the fittefl
and mofl meet perfons^ being capable of the fame eleSlions pre^
fentations and nomination's ^ freely^ without any reward gift or
thing given or taken for the fame ; and for thi true perform^
ance whereof fome electors preferitors and nominators in the fame j
have or Jhould take a corporal oath to make their eleSfions pre-
fe7itations and nominatioJis accordingly ; yet noiwithflandingy it
is found by experience^ that the faid ehtlions prefentations and
nominations be many times wrought and brought to pafs with
money gifts and rewards^ whereby the fttejl perfons to be elected
preferred or nominated^ wanting money or friends^ are feldom or ^
not at all preferred^ contrary to the good meaning of the faid
founders^ and the faid good flatutes and ordinances^ and to the
great prejudice of learnings and the commonwealth and ejlate of
the realm : For- remedy whereof it is ena£fedy that if any perfm
or perfons or bodies politick or corporate^ which have eleSiion
prefentation or jjomination, or voice or ajjent in the choice
ele^ion prefentation or nomination of any perfon to have room or
place in any of the faid cathedral or collegiate churches^ Jhall
have receive or take^ or Jhall accept any promife^ agreement cove-
nant bond or other afjurance to receive or have^ any money fee
reward or any other profit^ directly or indirectly ^ either to him-
f elf or themf elves ^ or to any other of his or their friends^ for his
or their voice or ajjenty in fuch eleHion prefentation or nomt*
nation as afore faid ; then and from thenceforth the place room
or office which fuch perfon fo offending Jhall then have in any
of-^he faid churches Jhall be voidy and the fame may be difpofed

CatDeu^aiig. 255

^ in fuch manner as iffuch perfon fo offending were naturally
dead. f. I, 2.

And if any officer of any of the f aid churches or other perfon
having room or place in the fame ^ Jhall direSily or indireSfly take
or receive^ or by any way device or means contraSf or agree to
have or receive any money reward or profit whatfoever^ for the
leaving or refigning up of the fame his room or place, ^ for any
other to be placed in the fame ; every perfon fo taking or con^'
traSfing Jhall forfeit double the fum of money ^ or value of the
thing fo received or agreed to be received or taken ; and every
perfon by whom or for whom any money gift or reward as
of or ef aid Jhall be given or agreed to be paidy Jhall be uncapahle
of that place or room for that time or tum^ and Jhall not be had
nor taken to be a lawful officer or to have fuch room or place,
there ^ but they to whom it Jhall appertain Jhall appoint another
as iffuch perfon were dead or had refigned, f. 3.

And for the more fine ere eleSlion prefentation and nomina-
tion of officers and other perfons to have room or place in any of
the faid churches ; at the time of every fuch ele^ion prefentation
or nomination^ as well this prefent a5i^ as the orders andftatutes
of fuch place concerning fuch ele5iion prefentation or nomination
to he had J Jhall then and there be publickly read ; upon pain that
every perfon in whom default thereof Jhall be ^ Jhall forfeit 40 1.

f* 4- . .

All which forfeitures fljall he^ half to him or them that will
fue for the fame in any of the queen's courts of record^ and half
to the ufe of fuch cathedral or collegiate church wh ire fuch of-
fence Jhall be committed, f. 4.

As to the methods of proceeding in elections, they de-
pend in a great meafure upon the local ftatutes and cuf-
toms of each cathedral and collegiate body, and therefore
cannot be brought under the rules which the ancient ca-
non law hath laid down. Neverthelefs, it may be of ufe,
in cafes which the ftatutes have left doubtful, or not clearly
determined, to fet down here fome rules relating to elec-
tions, which lie difperfed in the body of the canon lawp
As,

(i) Concerning the time for election, this the canoft
Uw determines that it Ihall not exceed the fpace of three
months from the vacancy, and if it be deferred longer
(without lawful impediment) the ele(S^ors ihall for that
turn lofe their right of eled^ion, and the fame fhall devolve
upon thofe who have the next right, who alfo fliall fill up
the vacancy within other three months, on pain of canon-
ical cenfures. And after the election, they fhall notify
-• • r,~,» fo t^? nerfon eleded, fo foon as they reaibnab*^

can>

256 Catl)eu?al5*

can J who (hall aflent thereunto within the fpace of dne i \
month, and within three months afterwards fhall procure |
confirmation thereof, otherwife the election (if there be no I
lawful impediment intervening) fhall be void. But the •
election, or any citation or procefs relating thereto, ought L
not to be before the interment of the deceafed. v,

(2) Concerning the manner of proceeding to the elec-^
tlon, it is ordained, that when canons or prebendaries are
wanted, or benefices to be difpofed of, the canons abfenfe
are to be nW, if conveniently it may be, unlefs there hfii;
a cuftom to the contrary ; otherwife what is done in thekl
abfence (hall be of no efFe£l.

(3) And no perfon fhall conftitute a proxy in the bufi^
nefs of eledlion, unlefs he be abfent in a place from whencft
he ought to be cited (and not in a foreign country, orthe^
like), and hindrcd by juft impediment from attending, of
which he fhall caufe proof to be made upon oath if re-
quired. In fuch cafe, if he will, he may conftitute om^
of the chapter or collegiate body to be his proxy, .

But if none of the chapter will be his proxy, he cannot
depute any other without confent of the chapter, nor give
his vote by letter, which ought not to be given before the
meeting for the eledion, but only at that time. *

And if one of the chapter be conftituted proxy generally^-
if he nominate one perfon upon his own account, and an-
other in the name of his conftituent, it fhall pafs for no*
thing ; but if he hath a fpecial proxy, to chufe fuch a.
perfon by name, then he may lawfully confent to thci
election of one in his own name, and to the election of'
another in the name of his conftituent. ^

(4) When the election is to be made, and all arc pre*4.
fent who ought, and v^^ill, and can conveniently attend |^
three of the fociety fhall take the votes of every one, fe-^
cretly and feverally, and put the fame in writing, and thea>
immediately publifh the fame amongft them all ; and 0114
cafting up the votes, he fhall be eledcd, who has the ma-^
jOrity of legal votes. .

And they cannot vary after the votes are publifhed ; fow
then they ought to proceed to caft up the votes, and d^-^
clare the election. j If

(5) By the majority is meant, the majority of the whoirfj
number of electors ; therefore if there are 7 eleiSlors, andi
2 of them chufe one perfon, and 2 another, and 3 another, /
he who has the three votes fliall not be duly elected, a»^
not beintr chofcn by a maiority of the clc(^ors.

. (6)By

Cat!)et»iai5. 257

(6) By the majority of legal votes (the majsr et fanior
pars) are excluded thole who are admitted upon protefta-
tion, that their votes (hall not be good, if it fhall appear
that they have not a legal right to vote, and it (hall after-
wards be made appear upon appeal or otherwife that they
have no legal right. Now perfons may be difqualified feve-*
ral ways : as by cuftom ; or by their own crime, where
they have committed any offence which renders them in*
capable. So perfons under fufpenfion, or under the greater
excommunication, can neither be electors, nor be them-
felves elected.

But if a member be in pofTeilion, altho' not of rights
he may be an elector, and fuch ele(Slion is valid, provided
he be in quiet pofTefTion, becaufe he believeth that he hath
right. But if from the firft, before the eledlion is made,
it fhall be denied that he hath fuch right, and he is ad-
mitted under proteftation, that his voice fhall be valid if
indeed it ought to be valid, and thut it fhall not be valid
unlefs it fhall appear that he hath fuch right j in fuch cafe
his poffeffion fhall not avail.

(7) Where the votes are equal j one who is an ele£lor
being chofen, fhall have the preference before one who is
not an elector : As for inflance, if there arc 7 voters, and
3 of them chufe one of the feven, and other 3 chufe an-
other who is not of the feven ; he of the feven who is
chofen fhall have the preference, provided he himfelf con-
fent and agree to his election, and there be no canonical
impediment.

(8) If the lefTer number of the electors, proceed preci-
pitately to make ele£tion before the refl who ought to be
prefent are come in ; fuch eledlion is void, altho' the ma-
jor part of the whole number fhould alfent to it after-
wards. But if after fuch* undue election made, and divers
of the eledors are gone home, they who remain fhall pro-
ceed to another eledion, fuch other eledlion is alfo void ;
for they ought to appeal.

(9) A preeleSfion into a place not vacant, is void. And
fo it was declared in the court of king's bench, E» 34
C. 2. in the cafe of Stainhoe and Owen : Dr Owen was
cleded prebendary in the church of St David's, where fuch
ele£lions had been ufual, when all the prebends were full;
but upon a vacancy Dr Stainhoe was admitted, and the
court would not grant a mandamus to admit Dr Owelty
becaufe (as is there faid) it was a ridiculous cuflom to ele6t

Vol. I. S where

258 Catl)ctJ?aig.

where no prebend was vacant, for that there cannot be ail
cle<£lion but into a void place. {2 T. Jones. 199.) f L

It is true, there may be a preeleflion j and up(^n a death, |
the perfon ?nay afterwards be admitted : But fuch preelec-
tion binds not the body, fo as that they may not cleft any
other when the vacancy happens ; efpecially, where thc'
electors are the patrons, and are alfo the perfons to admit.
The caution given in this cafe by the canon law is, not to
chufe to the place which ihall be next vacant ; but if
they chufe a man to be a brother or fellow of the fociety^
and promife to confer upon him the next vacant benefice,;;
fuch eIe6t:ion is good, Gibf. 176, 7, 8.
^^•^ ^f'^h^'^^ 7* ^^^^^ ^^^ ^^^^ ^^ <?//;^r chief governor of any cathedral
venues° thei^eof ' ^'* collegicite church^ hath a certain portion of the pojfcjfions alone
ihill be charged, limited to his office ; and every prebendary^ vicar ^ petty canon^
and other minijler fpiritual hath another alone and dijlin£lly li^
mited to his refpe£five office : they Jhall he rated for their firji
fruits feparately and not jointly, 26 H. 8. c. 3. f. 25.
Cathedral the g. Xhe cathedral church is the parifli church of the
tbcwholed'iocefc. "^^^^^ diocefe (which diocefe was therefore com?nonly
called parochia in ancient times, till the application of this
name to the lefTer branches into which it was divided,
made it for diftin6lion's fake to be called only by the name'
of diocefe :) and it hath been afErmed, with great proba-v
bility, that if one refort to the cathedral church to hear '
divine fervice, it is a reforting to the parifh church, withia^
the natural fenfe and meaning of the ftatutc. Gibf, 171.

Upor^^.

f This cafe feems to be fomevvhat mifreportcd : The prebends^!
at St David's arc in the gift of the bifhop, and therefore the elec-
tion could not be to a prebend. But there are in that church fix
rcftdentiarijhips ; and to one of thefe it feemeth that the pre-t lec-
tion was made. Three of the refidentiaries are named by the bi-
fhop, viz. the chanter, chancellor and treafurcr. The other three
are eledlive out of the body of the prebendaries. The cullom
had prevailed for fome lime, for the fix to agree to elcd a feventh
fupernumerary ; who (hould, in return of the obligation, keep re-
fidence, and do the bufinefs of his eled^ors, and fhould fucceed to
the next vacancy in the chapter by elcd^ion. It feemeth from ihw
abovemeniioned report, that Dr Oium having been thus pre elec-
ted, was rcfufed to be admitted. Upon which he moved for a
mandamus ; but the court would not grant the fame, fuch pre-
ciedion being merely void. I'his cuftom at St David's, after
fome endeavours to be continued, hach now (it is faid) intirel/
ccafed.

Cat|)eii;tal5» 259

ttpon which account it is ordained by a canon of Simon
Mepham archbifhop of Canterbury, that in certain cafes,
they who cannot be cited perfonally, nor in their dwelling
houfe, may be cited in their parirfi church ; and if they
have no parifh church, or that doth not appear, theji they
(hall be cited in the cathedral. Gibf. 1003.

And by Can. 65. Excommunicates (hall be denounced
every fix months, as well in the parifh church, as in the
cathedral church of the diocefe.

9. In honour of the cathedral church, and in token of ^^^"°^:'«'^s-
fubje£lion to it, as the bifhop's fee j every parochial mini- ^nto upon thac
fter within the diocefe, pays to the bifhop an annual pen- account.

fion, called anciently cathedraticum. This acknowledg-»

ment is fuppofed to have taken rife from the eftablifhment

of diftinft parifhes, with certain revenues, and thereby the

feparating of thofe diftridts from the immediate relation

they had born to the cathedral church. By a canon of

the council of Bracara, this penfion is called honor cathe^

\ ira eptfcopalisy and reftrained (if it was not limited before)

I .0 two (hillings each church : which canon became after-

^ wards part of the canon law of the church, with this glofs

upon the words two JhilUngs (viz. at moJi\ for fometimes

lefi is given) ; and hath been received in England, as in

Dther churches, under the name o{ fynodaticum^ ox fynodah^

becaufe generally paid at the bifhop's fynod at Eafter.

Gibf, 171.

10. Langton, Bifhops fhall be at their cathedrals, on Biftiops rcfidencd
f' feme of the greater feafts, and at leaft in fome part of lent. '^^'^**

Lind. 1 30.

Otho. Bifhops fhall rcfide at their cathedral churches,
; ind officiate there on the chief feflivals, on the lord's days,
: and in lent, and in adv^^t. Athon, 55.

Othobon. Bifhops fhall be perfonally refident to take
Care of their flock, and for the comfort of the churches
cfpoufed to them ; efpecially on folcmn days, in lent and
advent : unlefs their abfcnce be required by their fupe-
riors, or for other jull: caufe. Athon, 118.

11. Can. 42. Every dean mafter or warden or chief r>csn ^^^ c'^ap*
governor of any cathedral or collegiate church, fhall be Jhcrc"^^*^'^"'^'
refident there fourfcore and ten days, conjunilim or divi-

fim, in every year at the leaft, and then fhall continue
there in preaching the word of god, and keeping good
hofpitality ; except he fhall be otherwife let with weighty
and urgent caufcs to be approved by the bifliop, or in any
other lawful fort difpcnfcd with. And when he is prefcnt,

S 2 he

26o CatDet»?aig*

he with the reft of the canons or prebendaries refid6nt*,
fhall take fpecial care, that the ftatutes and laudable cuf-
toms of their church (not being contrary to the word of
god or prerogative royal), the ftatutes of this realm being
in force concerning ecclefiaftlcal order, and all other con-
ftitutions now fet forth and confirmed by his majefty's
authority, and fuch as fhall be lawfully enjoined by the
bifliop of the diocefe in his vifitation according to the fta- .
tutes and cuftoms of the fame church or the ecclefiaftical :
laws of this realm, be diligently obferved ; and that the'
petty canons, vicars choral, and other minifters of their
church, be urged to the ftudy of the holy fcriptures ; and
every one of them to have the new teftament not only in ,
englifti, but alfo in latin.

Can. 44.. Prebendaries, at brge, fhall not be abfent
from their cuies above a month in the year; and refiden-
tiaries fhall divide the year among them, and when their
refidence is over, ftiall repair to their benefices.
/.dminlftration 12. Can, 24. In all cathedral and collegiate churches;,
ct the holy com- j.j,^ j^^j^ communion fhall be adminiftred upon principal
feaft days, fometimes by the bifhop (if he be prcfent), and
lometimes by the dean, and at fome times by a canon or
prebendary; the principal minifter ufing a decent cope,
and being aflifted with the gofpeller and epiftler agreeably,
according to the advertifements publlftied in the feventh
year of queen Elizabeth (hereafter following). The faid
communion to be adminiftred at fuch times, and with
fuch limitation, as is fpecificd in the book of common
prayer. Provided that no fuch limitation by any con-
ilrudtion fnail be allowed of, but that all deans, wardens,
mailers, or heads of cathedral and collegiate churches, pre-
bendaries, canons, vicars, petty canons, finging men, and
all others of the foundation, fhall receive the communion
four times yearly at the leaft.
Freachjnf. 1 3. Can. 43. The dean mafter warden or chief go-

vernor, prebendaries and canons in every cathedral and
collegiate church, fliall preach there in their own perfons,
fo often as they are bound by law ftatutc ordinance or
cuftom ; and if they be fick, or lawfully abfent, they fhall
fubftitute fuch licenfed preachers to fupply their turns, as
by the bifhop fliall be thought meet to preach in cathe-
dral churches. And if any otherwife negleft or omit to
fupply his courfc, the offender fhall be punifhed by the
bifhop, or by him or them to whom the jurifdidlion ot
that church appertaineth, according to the quality of the
olFcncc.

And

Catl)e&?ai5. 26*

And by Can, 51. The deans prcfidents and refiden-
tiaries of any cathedral or collegiate church, fhall fuiFer
no ftranger to preach unto the people in their churches,
except they be allowed by the archbifhop of the province,
or by the bifhop of the fame dioccfe, or by either of the
univerfities. And if any in his fermon fhall publifh any
ck)6lrine either ftrange, or difagreeing from the word of
god, or from any of the thirty nine articles, or from the
book of common prayer ; the dean or the refidents fhall
by their letters, fubfcribcd with fome of their hands that
heard him, fo foon as may be, give notice of the fame to
the bifhop of the diocefe, that he may determine the mat-
ter, and take fuch order therein as he fhall think conve-
nient.

14. By the 13 & 14 C. 2. c. 4. A leSfurer being chofen Leflurers.
In a cathedral or collegiate churchy need not to read the common
prayer^ as other perfons admitted to ecclefiajlical ojffices j hut it

fl)all be fiifficient openly to declare his ajjent and conj'ent to all
things therein contained, f. 20.

15. The advertifements publifhcd in the feventh year HjMs to be
of queen Elizabeth, and referred to in Can. 24. aforego- ^^"^^ ^^"^'
ing, are as follows : Item, In the minifliration of the holy
communion in cathedral and collegiate churches, the
principal minifter fhall ufe a cope, with gofpcller and
epiftoler agreeably ; and at all other prayers to be faid at

the communion table, to ufe no copes but furplices.
Item, That the dean and prebendaries wear a furplicc,
with a filk hood, in the quire; and when they preach in
the cathedral or collegiate church, to wear a hood.

And at the end of the fcrvice book in the fecond year
of Edward the fixth, it is oidered, that in all cathedral
churches, the archdeacons, deans, and prebendaries, be-
ing graduates, may ufc*in the quire, bcfide their furpli-
ces, fuch hoods as pertaineth to their feveral degrees,
which they have taken in any univerfity within this
realm.

16. Churches collegiate and conventual were always vi- vifitat onthere-
fitable by the bifhop of the diocefe j if no fpecial exemp- ^^'

tion was made by the founder thereof. Hughes^ c. 28.

And the vifitation of cathedral churches doth be! one?;
unto the metropolitan of the province; and to the king,
when the archbifhoprick is vacant. Id,

17. The fee of a bifliop is intitled to the ornaments pf Ornament j to go
the chapel at his death. This was declared in the bifliop ^" ^'^^ i"ccdiov.
of Carlifle's cafe, 21 Ed. 3. and is pleaded by lord Colce

ia the cdie of Corven and Pym, as good law j 'that al-.
S 3 though

2 62 Catljetjjais.

though other chattels belong to the executors of the dc-
ceafed, and (hall not go in fucceflion, yet the ornaments
of a chapel of a preceding bilhop, are merely in fucceflion,
Gibf, 171.
CathcdriiTs of the 18. Concerning the cathedral churches of the new
new foundation, foundation, it is enacted by the 31 //. 8. c, 9. that the
king Jhall have power to declare and nominate by letters patents
or other writing un'er the great feal^ fuch number of biJhopSy
fuch number of cities (fees for bijhops)^ cathedral churches^ and
diocefeSy by metes and bounds ^ as Jhall appertain ; and (out
of the revenues of the diilblved monafteriesj to endow theniy
zuith fuch poffffwnsy after fuch manner and condition^ as he
Jhall think necejjary and convenient.

And it appears by a fcheme for new cathedrals and bi-^
Ihopricks, under the hand of king Hen. 8. that his de-
fign was, to erc£l many more (purfuant to the powers gi»
ven by this ad) than were erected, i Burnet. 262.

By the charters of foundation of the new cathedral and
collegiate churches creeled by the faid king, it is order-
ed that they fliould be ruled and governed by ftatutcs to
be fpecified in certain indentures then after to be made
by him : which ftatutes were accordingly made and de-
livered to the faid churches, but not indented. Where-
upon the a6l of the i Mar. fcff. 3. c. 9. afferting the faid
itatutes to be therefore void, gave power to the faid queen,
to ordain fuch ftatutes and ordinances for the fame, as
fhould feem good unto her : but fhe died, before much
was done. Afterwards the fame power was given tq
queen Elizabeth, by the i El. c. 22. during her life j
who gave power to the ecclcfiaftical commiflioners to pre-.
pare new ftatutcs for the fame, which accordingly were
prepared and finifned in the month of July 1572, ready,
for the royal confirmation; but this (for what reafon,
or by what accident, appears not) was never o43tained.
Gibf 181.

But by the 6 An. c. 21. in order to fettle the difputcs
which had arifen concerning the validity of fuch ftatutcs,
it is ena(Slcd, that in all cathedral and collegiate churchei
founded by king Henry the eighth^ fuch Jlatutes as have been
ufually received and prarJiJcd in the government of the
Jame refpetlively fnce the rejloration of king Charles the Jecond^
and to the obfervance whereof the deans and prebendaries and
other ?nc?nbers of the faid churches from, the faid time have
ufed to be fworn at their . itijlalmcftt^ or admijfions^ Jhall he
good and valid, and be taken and adjudged to be the fiatutes
of the faid churches rejpctlivcly ; neverthcUfs fo far forth only^

CatijcD^als. 263

4U the fame- or any of them are in no manner- repugnant to ^n
inconjijient with the conjlitiition of the church of England as the
f^tme is now by law ejlablijhedy or the laws of the latid.
Which a6l, together with the cafes that have happened
tliereupon, falleth in more properly under the title Deans
0nd Chapters.

r~ '

Catljct»?ati'cttni.

pATHEDRJTICUM hath been treated of under
t^ the title next aforegoing.

Catjeat.

A Caveat is a caution entred in the fpiritual court, to
flop probates, adminiftrations, licences, difpenfa-
tions, faculties, inlHtutions, and fuch like, from being
granted v^ithout the, knovi^ledge of the party that en-
ters it.

And a caveat is of fuch validity by the canon law, that
if an inftitution, adminiftration, or the like, be granted
pending fuch caveat, the fame is void, Jyl. Par* 145, 6,
I Lev. 157. Owen. 50.

But not fo by the common law. For by the common
law, an admiifion, inftitution, probate, adminiftration,
or the like, contrary to a caveat entred, fliall ftand good j
in the eye of which iSw, the caveat is faid to be only a
caution for the information of the court (like a caveat
entred in chancery agalnft the paiTing of a patent, or in
the common pleas againft the levying of a fine) ; but that
it doth not prefcrve the right untouched, fo as to null all
fubfequcnt proceedings, becaufe it doth not come from
any fupeiior ; nor hath it ever been determined, that a
bi{hop became a difturber, by giving inftitutioxi without
regard to a caveat ; on the contrary, it was faid by Coke
ijind Doderidge, in the cafe of Hutchins and Glover., H*
14 Ja. that they have nothing to do with a caveat in the
-common law* Gibf. yj8. 2 Bac. Jbr, 404. JyL Par^
445i 60

Ccflioru

264

Ceffion. See SftOfBOltCe*
Chancel. See CIjUtCD*

-^^

Cl)ancello?s, &e.

ehaacfcllof. I. " I *" H E word chancellor is not mentioned in the cotn-
3 miflion, and but rarely in our ancient records ;
but feen.eth to have grown into ufe in imitation of the like
title in the ftate; inafmuch as the proper office of a chan-
cellor as fuch, was, to be keeper of the feals of the arch-
bifhop or bifhop, as appears from divers entries in the re-
"giftry of the archbifhops of Canterbury. Gihf, 986.
Official principal 2. This ofHce (as it is now underftood) includeth in it
and vicar gcnetal. two Other offices, which are dillinguifhed in the commif-
fion by the titles of official principal and vicar general.
The proper work of an official is, to hear caufes between
party and party, concerning wills, legacies, marriages,
and the like, which are matters of temporal cognizance,
but have been granted to the ecclefiaftical courts by the
conceflions of princes. The proper work of a vicar ge-
neral is, the exercife and adminift ration of jurifdidion
purely fpiritual, by the authority and under the dire6i:ion
of the biftiop, as vifitation, correction of manners, grant-
ing inftitutions, and the like, with a general infpedion
of men and things, in order to the preferving of difcipline
and good government in the church. Gibf. Introd, 22.
Gibfons Traces 108.

And although thefe two offices have been ordinarily
granted together ; yet we find in the a6ls and records of
the feveraj fees frequent appointments of vicars general
feparately, upon occafional abfences of" the archbifhops
or bifhops, Gibfon^s Trails iiQ.

For the vicar general was an officer occafionally con-
flituted, when the bifh^.p was called out of the diocefe,
by foreign embaffies, or attendances in parliament, or
other affairs whether publick or private; and being the
reprcfentative of th? bifhop for that time, his commiflioh
contained in it all that power and jurifdi<^ion which ftill
reftcd in the bifhop notwithftanding the appointment of
an official, that is, the whole adminiflration except the

hearing

CljatlCEUOjS, 8cc. ^1

hearing of caufes in the confiftorY court. G'lhf, JniroJ,

And Dr Gibfon takes occafion to wifh, that thefe offices
might be kept feparate ftill ; the office of vicar general to
be vefted in the hands of fome grave and prudent clergy-
man, ufually refident within the diocefe j and that ofaffr^
daiy (as being converfant about temporal matters) in
the hands of a layman, well (killed in the civil law.
Gibf. 990.

3. CommifTary is he that is limited by the bifhop Comrniflary.
to fome certain place of the diocefe, to affift: him ; and

in moft cafes hath the authority of official principal and
^icar general within his limits. Terms of the hw. Tit.
CommifTary. 4 Inft. 338.

The chancellor is not confined to any place of the dio-
cefe, nor limited to fome certain caufes only of jurifdic-
tion J but every v/here throughout the whole diocefe he
fupplieth the bifhop's abfence, in all matters and caufes
ecclefiaftical within his diocefe. But the authority of
commifTaries, as it is reftrained to fome certain place of
the diocefe, fo is it alfo reftrained to fome certain caufes
of jurifdidtion, limited unto them by the bifbops : for
which reafon the law calls them offici ales for anci^ as re-
ftrained r«/V/?/« y^r^ only of the diocefe. God. Si.

4. And what is faid of commifTaries may be alfo ap- ATchdcacon'tof-
plied to the officials of fuch archdeacons as .have a con- ^*^"^-
current jurifdiftion with their biftiop. Gibf. Tra^s 114.

5. By Can. 127. No man fhall be admitted a chan- Qualification,
cellor, CommifTary, or official, to exercife any ecclefia-
ftical jurifdiiSlion, except he be of the full age of fix aad

twenty years at the leaft, and one that is learned in the
civil and ecclefiaftical laws, and is at the leaft a mafter
of arts, or batchelor df law, and is reafonably well prac-
tifed in the courfe thereof, as likewife well afTe£led and
zealoufly bent to religion, touching whofe life and man-
ners no evil example is had, and except before he enter
into or execute any fuch office, he (hall take the oath of
the king's fupremacy in the prefence of the bilhop, or
in the open court, and fhall fubfcribe to the thirty nine
articles, and fhall alfo fwear that he will to the uttermoft
of his underftanding deal uprightly and juftly in his
office, without refpedt of favour or reward ; the faid
oaths and fubfcription to be recorded by a regifter then
prefent.

And they are alfo to take the oaths at the felons, as
other pcrfons qualifying for offices,

266 CDancello^g, &c.

In the fecond year of king Charles the firft, Dr Sutton,
chancellor of Gioucefter, was fued before the high coin-
miffioners, for that he being a divine, and having never
been brought up in the fciencc of the civil or canon laws,
nor having any underflanding therein, took upon him the
office of chancellor, contrary to the canons and conftitu-
tions of the church. Whereupon he prayed a prohibi-
tion in the common pleas, fuggefting that he had a free-
hold in the chancellorfhip, and ought to enjoy the fame
for life : but the court would not grant the prohibition ;
becaufe it belonged to the fpiritual courts to examine the
abilities of fpiritual officers; and fo, tho' a lay perfon
gains a freehold by his admiffion to a benefice, yet he may
be fued in the fpiritual court, and deprived for that caufc*^
G/Vy. 987.

But of later days, when Dr Jones, chancellor of Lan-^
daff, was libelled againfi: for ignorance, prohibition wast
prayed, and alfo obtained, upon this foot of freehold;
and when confultation was prayed, as in a cafe of mere
ecclefiaftical cognizance, and the prayer was fupported by
the precedent of Dr Sutton, the court inclined againft it,
and denied Sutton's cafe to be law. Gibf, 987. 4 Mod^

31-
juriT^iaJojT. 6. Concerning the nature and extent of the power of

chancellors, as that name is underftood at prefent, bilhop
Stillingfleet faith as follows :

There is a difference in law and reafon, between an
ordinary power depending on an ancient prefcription and
compofition (as it is m fcveral places in the deans and
chapters within their precincts), and an ordinary power
in a fubftitute, as a chancellor or vicar general. For al-
tho' fuch an officer hath the fame court with the bifliop,
fo that the legal acSls of court are the blfhop's a6ts by
whofe authority he fits there, fo that no appeal lies from
the bifhop's officer to the bifliop himfelf, but to the fupe-
rior i and altho' a commifiary be allowed to have the
power of the ordinary in teftamentary caufcs, which were
not originally of ecclcfiaftical jurifdic^tion : yet in a<5ls
which are of fpiritual and voluntary jurifdii^ion, the cafe
is otherwife. For the bifhop, by appointing a chancel-
lor, doth not devefl: himfelf of his own ordinary power;
but he may delegate fome parts of it by commiffion to
others, which goes no farther than is expreffed in it. For
it is a very great miftake in any to think, that fuch who
a(Sl by a delegated power, can have any more power than
is given to them, where a fpecial commiffion is required

for

CflaticeUD^sf, &c. 267

(oT the exercife of it. For by the general commiflion no
ether authority pafTeth, but that of hearing caufes : but
ail a6ts of voluntary jurifdidlion require a fpecial com-
Viifilon, which the bilhop may reftrain as he (qcs caufc.
For, as Lindwood faith, nothing pafTes by virtue of the
•ffice but the hearing of caufes ; fo that other a6ts depend
itpon the bifhop's particular grant for that purpofe. And
the law no where determines the bounds of a chancels
lor's power as to fuch acts ; nor can it be fuppofed fo to
do, fmce it is but a delegated power, and it is in the
right of him that deputes to circumfcribe and limit it.
Neither can ufe or cuftom inlarge fuch a power, whicH
fkpends upon another's will. And however by modern
practice the patents for fuch places have pafTed for the life
of the perfon to whom they were firft granted ; yet it
was not fo by the ancient ecclefiaftical law of England.
For Lindwood afHrms, that a grant of jurifdi^lion ceafeth
\y the death of him who gave it ; or otherwife it could
liever pafs into the dean and chapter feds vacante^ or to the
guardian of the fpiritualties. And he gives a good reafon
for it, that the bifhop may not have an official againft his
will, perhaps difagreeable to him. It is true, that by the
ftatute of the 37 H. 8. c. 17. mere doftors of law arc
made capable of exerciftng all manner of ecclefiaftical ju-
wfdi6tion ; but it doth not aflign the extent of their ju-
rifdi£lion, but leaves it to the bifhops themfelves, from
whom their authority is derived. And the law ftlll dif-
tinguifheth between ordinary and delegated power ; for
the former fuppofeth a perfon to a£l in his own right, and
not by a deputation, which no chancellor or official dotH
pretend unto, i Still. 330.

Note, voluntary jurifdidion is exercifed in matters which
require no judicial prcfceeding, as in granting probate of
wills, letters of admlniftration, fequeftration of vacant
benefices, inftitutlon, and fuch like ; contentious jurifdic-
lion is, where there is an action or judicial procefs, and
confifteth in the hearing and determining of caufes be-
tween party and party. Jyl. Parerg. 318.

And the diftindion which bifbop Stillingfltet here
laycth down, between contentious and voluntary jurifdic-
tion, as the one is fuppofed to be conveyed to the official,
;Wk1 the other to remain in the bifhop, js fupportcd, as to
$he contentious jurifdidion, by the books of common law;
which affirm, that a bifhop may well fue for a penfion or
other right before his own chancellor ; and fay, that the
archbifhop having conftituted an official principal (as the

dean

268 Cl)snceUo;ts, &c.

dean of the arches) to receive appeals, cannot afterwardsr
come into that court, -and execute the office himfelf. Add i
to this, what is generally faid,^ that if a bifhop doth not i
conftitute a chancellor, he may be obliged to do it by the k
archbifhop of the province. Gihf. 926. !

But as to the other branch, to wit, voluntary jurifdic- jl
tion, as vifitation, inftitution, licences, and the like; all '|
this doth remain in the archbifhop or bifhop, notwith- i
Handing the general grant of all and all manner of jurif- |
di6lion to the official. And therefore in our ancient ec- j
clefiaftical records, we find fpecial commiffions to hear
and determine matters found and detected in the vifitation,
granted by the vifitors to fuch perfons whofe zeal and in-
tegrity they could confide in, for the eft*e£tual profecution
of the crimes and vices detedled. In like manner infti^
tutions, licences, and the like, can belong to chancellors
no otherwife, than as the right of granting is conveyed
to them diftindtly and in exprefs terms : And all that is
here faid of chancellors, holds equally in the cafe of com-r
mifTaries and officials, according to the refpe6live powers
delegated to them. Gibf. 987.

Under the appellation of delegated jurifdiition, in a
large fenfe, may be comprehended the jurifdi61:ion of arch-
deacons, who cxercife fuch branches of epifcopal power
(in fubordination to the bifliops) as have been anciently
affigned to them, efpecially the holding of vifitations j and
of deans, deans and chapters, and prebendaries, who do
exercife epifcopal jurifdiftion of all kinds, independent
from the bifhops, tho' no jurifdidHon at all could accrue
to them otherwife than by grant from the bifhops, or by
the arbitrary and overruling power of the popes. Both of
thefe, however originally delegated, have long obtained
the flyle of ordinary jurifdiclion, as belonging of courfe
and without any exprefs commiffion, to the feveral offices
beforementioned. Gibf. Introd, 22.

But the power which we properly call delegated, is the
power of chancellors, commifTaries, and officials ; which
they exercife by exprefs commiffion from the rcfpeftive
ordinaries, to whofe flations or offices fuch powers are
annexed. Id,
Continuance. 7- As the bifhop may bound commiffions in point of

power, fo he may alfo bound them in point of duration.
The commiffion of official, for hearing of caufes, is the
only one which the bifhop is pretended to be under an
obligation to grant, and he (as official) hath lefs fhare
than any other in the fpiritual adminiflration \ and yet-

even

CljaiiceUo^jS, &c» 269

«ven in this the rule of the law is, that the power of o/H^
cials ceafeth, net only by revocation, but by the ^eath ,of
bim who deputed them. And the reafon given for it is,
l^at otherwife upon the death of the bifhop the guardian
of the fpirrtualties (and the fame holds good of the fu,q-
ceflbrs alfo) might have an unacceptable perfon intaiJed
<ipon him. Accordingly, before the reformation, and for
fpme time after, we find new commlfTions for offices of.
all kinds generally granted together, after the confecra-
tion or tranilation of a new bifhop ; and thofe grants ufu-
ally either to continue during pleafure in exprefs words,
pyr without any mention of the continuance for life or
other term, and fo equally revocable at the pleafure of
-f^e bifhop. The fame feenieth to have continued, at leaft
the common ftyle, for fome years in the reign of queen
Elizabeth j and in the next reign we find it a queftion in
the cafe of the prebend of Hatcherly, whether any con-
firmation could bind the fucccflbr ; and tho' in the cafe of
Dr Barker, in the twenty firft year of king James, the
court were of opinion, that the bifhop had no right to
take from him his office of commifl'ary and vicar ge-
lieral, which was granted for life, it is to be obferved,
that that grant had been made by deed from the bifhop
himfelf, who therefore was bound Sy his own a6t, and
could not undo it at pleafure ; but in the next reign,
3 Cha, in Sutton s cafe, it is mentioned again as a doubt-
ful point, whether the grant of the predeceflbr, (however
confirmed) could bind the fuccefTor. Gihf, Introd, 25.
> And it fhould feem that the grantees themfelves doubt-
ed their title for life, in the known way of commiffions,
according to the ecclefiaftical method ; and therefore for
greater fecurity (no doubt by the advice of common law-
yers) they obtained tite offices by way of letters patents,
with the habendum and other attendants on temporal
grants; in which way they flill continue. And it is now
taken for clear law, in the cafe of bifhops and other or-
dinaries, that the grant of an office for life by the prede-
cefTor, whether judicial or miniflerial, if it be confirmed
by the dean and chapter, is binding to the fuccefTor. But
it is to be remembred, that this is an allowance, and not
a command ; the law declares fuch grants good when
made, but doth not diredt them to be made ; in this the
bifhop is at his own liberty as much as ever, no reflraint
therein being laid upon him by any law of this realm.
Id.

The

2^o CDancello^g, &c.

The fame holds much more ftrongly, in the cafe of
grants for more lives, and grants in reverfion. In favour
of a grant for one life, it may be alledged that the grantee,
under the uncertainty of the life of the grantor, would
have no encouragement to fequefter himfelf from all other
buflnefs, and turn his thoughts wholly to the execution
of that office ; and that by the time he hath attained a
competent knowledge of perfons and things relating to it,
he may be removed : but thefe cannot be pleaded in fa-
vour of grants for more lives, and grants in reverfion.
It is true, the temporal courts do fo far reftrain fuch
grants, as to declare them void, unlefs warranted by pre-
cedents before the i Eliz. in the cafe of bi/hops, and be-*
fore the 13 Eliz, in the cafe of others (in which years the
two ftatutes were made againft the laying thefe and the
like unreafonable burdens upon fuccellbrs) ; and they al-
fo do declare them void, unlefs they be granted freely and
without reward, and unlefs the grantee (fuppofmg him of
full age) appear to have fufncient knowledge for the
work. But they have allowed them to be good, upon the
foundation of precedents fubfequent to the i EU%. on pre-
fumption that there might be precedents before ; and they
have alfo allowed grants to minors to be good, on pre-
fumption that in due time they will qualify themfelves for
the offices, and that until fuch time as they fhall come of
age they n^ay fupply the places by deputies. Gibf, Introd*
26.

Cijatittp.

CHANTRY, canfaria^ was commonly a little chapel,
or particular altar, in fome cathedral or parochial
church ; endowed with lands or revenues, for the main-
tenance of a prieft, to pray for the fouls of the founder
and his friends.

A man might make a chantry by licence of the king,
without the ordinary ; for the ordinary hath nothing to
do therewith.

The main ufc and intent of thefe chantries was, for

prayers for fouls departed, on a fuppofition of purgatory,

and of being rcleafcd from thence by mafles fatisfaclory :

And prayer for fuch fouls was the general matter of all

I obits.

©bits, anniverfaries, and the like, which were but feverai
forms of prayer for fouls. God, 329.

Thefe chantries were difiblved by the ilatute of the i
Ed,b. c, 14.

Cljapel-

I. TTtE have foftned in Englilh the pronunciation of d^afd, wfeccae

VV the initial letters of this word, as we have done fo called,
in many other like inftances ; for it is evidently the fam€
with the Latin word capella : the Danifh word is J:apel^
the Belgic capelle^ the Spanifh capilla. But from whence
they have their derivation, feemeth not to have been fa-
tisfa6lorily accounted for. Perhaps the fame may be a
diminutive of the word capa^ which hath been adopted to
fignify on€ of the priefts veftments, fo called (faith Lind-
wood) a capiendo^ from its containing or covering the
whole back and (boulders. For chapels at firft were only
tents or tabernacles, fometimes called field churches, be-
ing nothing more than a covering from the inclemency of
the feafons. And the metaphor is transferred with our
Engliih word £€pe^ which is ufed to denominate the fame
veftment, and iignifieth alfo a canopy or other vaulted
covering. So coppe denoteth the round top of a hill. So
we fay the c<ipe of a wall ; the cape of a coat ; cape^ a
promontory, or other extremity j cap^ a covering for the
head 5 and other fuch like.

2. Private chapels are fuch as noblemen and other re- pxi»atr d«a«:s,
ligious and worthy perfons have at their own private
charge, built in or near their own houfes, for them and
their families to perforfli religious duties in. Thefe pri-
vate chapels and their ornaments are maintained at thofe
j)erfons charge to whom they belong; and chaplains pro-
vided for them by themfelves, with honourable penfions :
and thefe anciently were all confecrated by the bifhop of
the diocefe, and ought to be fo ftill. Degge P. i. c. 12.

Stratforu. We do decree, that wijofoever againjl the pro-
Jyilition of the canons Jhall celebrate mafs in oratories^ chapehy
houfesy or other places not confecrated, without havirig obtained
the licence of the diocefan, Jhall be fufpended from the celehra-
tion of divine fervice for the fp ace of a month. And all licence i
granted by the bijhops, for celebrating mafs in places not confe^
iratedy ether than to nobUmen or other great men of the reabn^
li^i^ng at a confidcrablc dijlance from th^ churchy or notorioufly

iveak

272 CljapeL

weak or Infirm^ Jhall he void, Neverthelefs the heads ^ gover*-
norsy and canons of cathedral churches, and others of the clergy^
nuiy celebrate mafs in their oratories of ancient erection, as hath
been acciijlomed^ Moreover, the priejis who Jhall celebrate mafs
in oratories or chapels built by the kings or queens of England^
or their children, jhall yiot incur fuch pain, Lind. 233.

In oratories] An oratory differs from a church : for in a
church there is appointed a certain endowment for the
minifter and others ; but an oratory is that which is not
built for faying mafs, nor endowed, but ordained for
prayer. Lind. 233.

Or other places] As fuppofe, in a tent, or in the open
air. Lind, 233.

Without having obtained the licence of the diocefan] Such
oratory any one may build, without the confent of the
bifhop ; but without the licence of the bifhop, divine fer-
vice may not be performed there. And this licence he
Ihall not grant, for divine fervice there to be performed,
upon the greater feflivals. Lind. 233.

Abundance of fuch licences, both before and fince the
reformation, remain in our ecclefiaftical records ; not on-
ly for prayers, and fermons, but in fome inftances for
facraments alfo. But the law is (as Lind wood hath it in
his glofs on the faid canon) that fuch licence be granted
fparingly. And thefe reftri^lions were laid on private
oratories, out of a juft regard to places of publick wor-
fliip ; that while the laws of the church provided for great
infirmities, or great diftance, fuch indulgence might not
be abufed to an unneceflary negledt of publick or paro-
chial communion. Gihf. 212.

And in the faid oratories, a bell might not be put up»
without the bifnop's authority. Lind, 233.

^t a conftderahle dijlance] As fuppofe, a mile or more ;
and in fuch cafe, and not otherwife (faith Lindwood),
the bifhop ought to permit fervice to be performed there.
Lind, 233.

By the 2 y 3 Ed. 6. c. i. / i. and i El. c. 2. / 4.
Open prayer in and throughout thofe a£ls, is explained
thereby to be, that prayer which is for others to come
unto or hear, either in common churches, or private
chapels or oratories.

By the 23^/. c, I. Every perfon which ufually on the

funday fhall have in his houfe divine fervice which is efla-

3 blifhcd

Cfjapet "^^3

^liflied by the law of this realm, and be thereat hirri felf
ufually prefent, and fhall riot obftinately refufe to come
to church -, and fhall alfo four times in the year at leaft
be prefent at the divine fervice in the church of the parifli
where he fhall be refident, or in fome other common
church or chapel of eafe ; fhall not incur the penalty of

52Cl. a month limited by the faid adl, for not repairing to

^iohurch. f. 12.

: By Can. 71. No minifler fhall preach or adminlfler the
holy communion in any private houfe, except it be in times of
peceflity, when any being either fo impotent as he cannot go
to the church, or very dangeroufly fick, are defirous to be
'partakers of the holy facrament ; upon pain of fufpenfion
fer the firft ofFence, and excommunication for the fecond.
Provided, that houfes are here reputed for private houfes,
wherein are no chapels dedicated and allowed by the ec-
clefiaflical laws of this realm. And provided alfo, under
the pain before exprefled, that no chaplains do preach or
adminifler the communion in any other places, but in the
chapels of the faid houfes ; and that alfo they do the fame
very feldom upon fundays and holidays : fo that both the
lords and malters of the faid houfes, and their families,
fhall at other times refort to their own parifh churches,
and there receive the holy communion at the leaft one?
every year.

3. The diflindion of free chapels, is grounded on their Free chapels.
freedom or exemption from all ordinary jurifdi6lion. Gihf.
210.

Sir Simon Degge fays, it is agreed on all hands, that
the king may ere<St a free chapel, and exempt it from the
Turifdi6tion of the ordinary, or may licenfc a fubjecl fo to
do. Degge P. 1. c. 12.

And Dr Godolphin fays, the king may licenfe a fubjc6l
to found a chapel, and by his charter exempt it from the
vifvtation of the ordinary. Go^L 145.

But Dr Gibfon obferves neverthelefs, that no inflances
r^c produced in confirmation hereof: it is true, he fays, •

.at many free chaptls have been in the hands of fubjedts ;
tiut it doth not therefore follow, that thofe v/ere not ori-
ginally of royal foundation. Gibf. 21 1.

By a coriflitution of archbilliop Stratford, as before
.cntioned, ?ninijiers luhich officiate in oratories or chapels

'Ud by the kings or queens of England^ or their cbildreny

ill not need to have the licence of the orduiar'^.

Vox., I. T Qr ^

274 Cl)apei.

Or their children] Which word children extendeth ncrt
further than to grand children ; after thefe, they are call-
ed pofterity. Lind, 234.

All free chapels, together with the chantries, were
given to the king in the firft year of king Edward the
fixth : except fome few that are excepted in the a£ls of
parliament by which they were given; or fuch as are
founded by the king, or his licence, fince the difTolution.
Degge P, I. c. 12.

And the king himfelf vifits his free chapels and hofpi-
tals, and not the ordinary : which office of vifitation is
executed for the king, by the lord high chancellor. Ged*

P ree chapels may continue fuch, in point of exemption
from ordinary vifitation ; tho' the head or members do
receive inftitution from the ordinary. Glbf, 211.

In fhort, the fum of all is this : Free chapels (fays the
learned and accurate bifhop Tanner) were places of reli-
gious ivorfhip, exempt from all ordinary jurifdi6lion, fave
only, that the incumbents were generally inftituted by the
bifhop, and indu6led by the archdeacon of the place.
Moft of thefe chapels were built upon the manors and an-
cient demefnes of the crown, whilft in the king's hands,
for the ufe of himfelf and retinue when he came to refidc
there. And when the crown parted with thofe eftates,
the chapels v/ent along with them, and retained their firft
freedom ; but fome lords having had free chapels in ma-
nors that do not appear to have been ancient demefne of
the crown, fuch are thought to have been built and pri-
vileged by grants from the crown. T'anners Nctlt, Monajl^
Pref. 28.
Chapels of cafe 4- ^^ chapels fubjecl to a mother church, fome ar<
und«r a mother merely chapels of eafe, others chapels of eafe and parochiaL

church. Qlij^ 209.

A chapel merely of eafe, is that which was not allowed
a font at its inftitution, and which is ufcd only for th«
eafe of the parifhioners in prayers and preaching (facra-
ments and burials being received and performed at the
mother church,) and commonly where the curate is re-
movable at the pleafure of the parochial minifter ; accord-
ing to what Lindwood faith, where the minifter of the
mother church hath the cure of them both, yet he exer-
cifeth the cure there by a vicar not perpetual, but tempo-
rary, and removable at pleafure : tho' in this cafe, Lind-
Wood obfcrves elfewhere, that there may be in other re-
fjpcds the rights of a parochial chapel by cuftom. But
2 where

CDapel- 275

where a chapel is inflituted, tho' with parochial rights,
there is ufually (if not always) a refervation, of repairing
to the mother church, on a certain day or days, in order
to preferve the fubordination. Gibf. 209.

A parochial chapel is that which hath the parochial' '

rights of chriflning and burying; and this difFereth in no-
thing from a church, but in the want of a rc£lory and
Endowment. DeggeP. i. r. 12.

For the privileges of adminiftring the facraments (efpe-
cially that of baptifm) and the office of burial, are the proper
rites and jurifdidlion that make it no longer a depending
chapel of eafe, but a feparate parochial chapel. For the
liberties of baptifm and fepulture, are the true diflindl
parochial rites. And if any new oratory hath acquired
and enjoyed this immunity, then it difFereth not from a
parifh church, but (fays Mr Selden) may be ftiled capella
parochialis. And till the year 1300, in all trials of the
rights of particular churches, if it could be proved that
any chapel had a cuftom for free baptifm and burial, fuch
place was adjudged to be a parochial church. Hence at
the firft eredtion of thefe chapels, while they were defign-
ed to continue in fubje(5lion to the m.other church, exprefs
care was taken at the ordination of them, that there
fhould be no allowance of font or bells, or any thing that
might be to the prejudice of the old church. And when
any fubordinate chapel did afTume the liberty of burial, it
was always judged an ufurpation upon the rights of the
mother church, to which the dead bodies of all inhabitants
ought to be duly brought, and there alone interred. And
if any doubt arofe, whether a village were within the
bounds of fuch a parifh ; no argument could more direftly
'prove the affirmative, jfchan evidence given, that the inha*
bitants of that village did bury their dead in the church-
yard of the faid parifh. Ken. Far. Ant, 590, 591.

5. When by long ufe and cuftom parochial bounds Their en^ow.
became fixed and fettled, many of the parifhes were ftill menc and depen-
fo large, that fome of the remote hamlets found it very *^*^"'^^'
inconvenient to be at fo great a diftance from the church ;
and therefore for the relief and' eafe of fuch inhabitants,
this new method was pracSlifed of building private oratories
or chapels in any fuch remote hamlet, i/\ v/hich a capel-
lane was fometimes endowed by the lord of the manor,
or fome other benefadlor, but generally maintained i>y a
flipend from the parifh prieft, to whom all the rights and
dues were intlrely preferved. Ken. Par. Ant. 587.

But in order to authorife the erecting of a chapel of eafe,

the joint confent of the diocefan, the patron, and the in-

T 2 cumbcnt

276 CijapeL

cumbent (if the church was full) were [and as It feem-
eth ftill are] all required. Ken. Par, Ant. 585, 586.
■ By a conftitution of Othobon : When a private ferfon
dcfireth to have a chapel of his own^ and the bijhop for jiifl
caufe hath granted the fame ^ the faid bifiop hath always pro-
Ifided^ that this be dofie without prejudice to the right of any
other \ agreeably whereunto we do injoin^ that the chaplains
minijlring in fiich chapels^ which have been granted faving the
right of the mother church., jhall render to the re6lor of the faid
church all oblations and other things,, which,, if the faid chap-
tains did not receive them,, ought to accrue to the faid mother,^
church : and if any Jhall neglccl or refufe fo to do,, he Jhall in-
cur the pain of Jufpenfton until he Jljall conform. A thou. 112.

But this is to be underftood, unlefs a fpecial privilege,
or ancient cuftom do allow the contrary ; or unlefs by
compofitlon with the reclor of the mother church, he do
retain yearly the fruits arifing within the chapelry, paying
for the fame foniething in certain to the faid reclor.
Athon. 112.

For a chapel may prefcribe for tithes againft the mother
church. Thus in the cafe of Sayer and Bland (4 Leon.
24.) when the parfon libelled for tithes againft an inhabi-
tant of a hamlet where was a chapel of cafe, and it was
fhewed on the other fide, that time out of mind the faid
hamlet had found a clerk to do divine fervice in the faid.
chapel with part of their tithes, and (what was an ufual
compofitlon upon the ere(Sl:Ion of a chapel) paid a certain,
fum of money to the parfon and his predeceffors for all
tithes J the prefcriptlon was held to be good, and a pro-
hibition was granted. Gibf. 209.

And at the confecratlon of a chapel, there was often
fomc fixed endowment given to it, for its more light and
cafy dependence on the mother church : in fome places
being endowed with lands or tithes, and In fome places
by voluntary contributions. Dcgge P. i. c. 12.

Yet neverthelefs, at the firft there were very many figns
of the dependence of chapels on the mother church ; of
which the priir.c and moft effejtual was the payment of
tithes and offerings and all profits whatfoever to the in-
cumbent of the mother church. And therefore when fuch'
chapels were firft allov/ed, a pnrticular rcferve was always*
made, that fuch a new foundation (hould be no prejudice
to the parifh pricft- and church. The conftitutlons of.
Egbert archbifliop of York In the year ^50, do take care
that churches of ancient inftltutlon fliould not be deprived
of tithes or any other rights-, by giving ox allotting any

part

CIjapcL 277

part to new oratories. The fame was alfo provided in a
council under king Ethclred, by the advice of his two
archbifhops Alpheg and Wulftan. Which conftituticn
is alfo found in an elder council of Mentz ; and in the
imperial capitularies. And by the laws of king Edgar
made about the year 970, it was ordained, that every
man fhould pay his tithes to the ealdan mynjlre^ to the elder
or rrother church : Only if a thain or lord fhould have
,wlthin his own fee a church with a burial place (that is,
a parochial chapel,) he might give a third part of his
tithes to it ; but if it had no privilege of burial (that is,
if it were a bare appendant chapel,) chen the law was, to
maintain the prieft out of his nine parts, that is, purely
at his own charge, without laying any part of the burden
on the prieft of the parifh church. Ken. Par. Ant. 594.
• Another mark of dependence on the mother church
was this : The inhabitants of the village which was thus
accommodated with a chapel, Vv^'cre upon fome feftivals to
repair to the mother church, as an expreiTion of duty and
obedience to it. This pra6lice was enjoined by the 31ft
canon of the council of Agatha, and recommended by a
decree of Gratian, and obtained as a cuftom in this king-
dom. Yea, when chapels were firft allowed to our col-
leges in Oxford, it was generally provided, that fuch li-
berty fhould be no prejudice to the parifh church 5 and
that the fcholars of every fuch houfe fhould frequent the
faid parochial church in the greater folemnities of the
year. Which cuftom doth ftill prevail at Lincoln col-
lege, where the re6lor and fellows on Michaelmafs day
go in their refpe6live habits to the church of St Michael,
-and on the day of All-faints to the church of All-hallows.
Ken. Far. Ant. 595, ♦*

Nor did the inhabitants of any village fo privileged

. ith a chapel barely vifit the mother churchy and join in

le divine fervice ; but as a farther fign of fu bje6lion,

i/-y made their oblations, and paid fome accuftomed dues

: thofe folemn feafons. This was fometimes done upon

. ery one of the three greater feftivals of chriftmafn, eafter,

:]d vvhitfunday. Sometimes thofe offerings were made

only on the day of the dedication of the mother church.

At other tiTies and places, thcfe folemn oblations were

iiade only at whltfunticie, and this chiefly in cathedral

lid conventual churches, where, among all pariih church-

s that were appropriated to them, or of their patronage,

^ic pricfts and people came in folemn proccflion within

iis week of pentccoft, and brought their ufual oiferir.gs.

T 3 Where upoc

278 chapel.

Whereupon we may fairly prefume, that this old cuftom
gave birth and name to the pentecojiah or whitfun -contri-
butions that were allotted to the bifhops, and are ftill paid
in fome few diocefes. Ken. Par, Ant, 596, 597.

It was a farther honour done to mother churches, that
all the hamlets and diftant villages of a large parifh, made
one of their annual proceiHons to the parochial church,
with flags and ftreamers, and other enfigns of joy and
triumph. This cuftom might poffibly after the conqueft
be introduced by the Normans ; for among the ecclefi-
aftical conftitutions made in Normandy in the year 1080,
it is decreed, that once in a year about pentecoft, the
priefts and capellanes (hould come with their people in a
full proceffion to the mother church, and for every houfe
fhould offer on the altar a wax taper to inlighten the
church, or fomething of like value. Ken. Par. Ant. 598.

Moreover, the capellane or curate of a chapel was to
be hound by an oath of due reverence and obedience to
the redor or vicar of the mother church. This adl of
fubmifTion is injoined by a conftitution of archbifhop
Winchelfea. And the oath was this : That to the paro-
chial church and the reSfor and vicar of it^ they would do no
manner of hurt or prejudice in their oblations^ portions.^ and all
ccciifiomed dues \ hut as much as lay in their power ^ would de^
fend and fecure thetn in all refpeSts : that they would by no
means raife^ uphold^ or any way abet aiiy grudges^ quarrels^
difference^ or contention^ between the faid reSlor or vicar and
his parijhioners ; but as far as in them lay^ would projnote and
maintain peace and charity between them. And it was or-
dained, that all ftipendiary priefts and capellanes fhould
make fuch oath before the reilor or vicar or their deputy,
on the firft funday or feftival after their admiflion ; and
Ihould not prefume to celebrate divine fervice before fuch
oath was actually taken (at leaft if the redtor or vicar did
infift upon it), on penalty of incurring irregularity, and
fuch other punifhments as the canons did infli(5t on all
that violated the conftitutions of holy church. And if
the faid capellanes, after fuch oath taken, fhould be con-
vided of the breach of it, or if fufpecSled, fhould not be
able to purge themfelves, that then they fhould be turned
out and proceeded againft as pei-jured perfons. And if
any capellane renounced this obedience, and prefumed to
a(Sl: in contempt of the mother church and the incumbent
of it ; a judicial procefs was formed againft him, of which
the iffue was to ejedt and fufpend him. Ken, Par, Ant,
599, 600.

And

€(japel. 279

And Dr Kcnnet fays, this canon remalneth flill in its
full force. Ken. Par, Ant. 601.

And Mr Johnfon faith accordingly, that they who
ofliciate in any chapel of eafe, do to this day fwear obe-
dience to the incumbent of the mother church. Johnf,
205.

- The inhabitants of a preciniSi where there is a chapel,
tho' it is a parochial chapel, and tho* they do repair that
chapel, are neverthelefs of common right contributory to
the repairs of the mother church. If they have feats at
the mothei church, to go thither when they pleafe, or
receive facraments or facramentals, or marry, chriften,
or bury at it, there can be no pretence for a difchargc.
Nor can any thing fupport that plea, but that they have
time out of mind been difcharged (which alfo is doubted
whether it be of it felf a full difcharge) ; or that in con-
fideration thereof, they have paid fo much to the repair
of the church, or the wall of the churchyard, or the keep-
ing of a bell, or the like compofitions (which are clearly
a difcharge), Gibf, 197.

Dr Godolphin fays, it is contrary to common right,
that they who have a chapel of eafe in a village, fliould
be difcharged of repairing the mother church; for it ma^
be that the church, being built with ftone, may not need
any reparation within the memory of man ; and yet that
doth not difcharge them, without fome fpecial caufe of
difcharge fhewed. God. 153.

If the chapel be three miles diftant from the mother
church, and the inhabitants who have ufed to come to
the chapel, have ufed always to repair the chapel, and
there marry and bury, and have never within fixty years
been charged to repair the mother church ; yet this is not
any caufe to have a prohibition : but they ought to fhew
in the fpiritual court their exemption, if they have any,
upon the endowment. 2 Roll's Abr. 290.

But if the inhabitants of a chapelry prefcribe to be dif-
charged time out of mind of the reparation of the mother
church, and they are fued for the reparation of the mother
church, a prohibition lieth upon this furmife, 2 Kol^i
Jbr, 290.

T. I W. Ball and Crofs, The inhabitants of a chapelry
within a parifh, were profecuted in the ecclefiaftical
court, for not paying towards the repairs of the parifh
church ; and the cafe was, thofe of the chapelry never
^ad contributed, but always buried at the mother churchy
fill 4bout IJenry the eighth's tinj.c the biflK>p was pre-*
T 4. vaile4

2 8o Cljapel*

Vailed on to confecrate them a burial place, in ccnfideri^
tion of which they agreed to pay towards the repair of the
mother church. All which appeared upon the libel. And
it was held by Holt chief juftice ; that thofe of a chapelry
may prefcribe to be exempt from repairing the mother
church, as where it buries and chriftens within it felf^
and hath never contributed to the mother church ; for in
that cafe it fhall be intended co-evaj, and not a latter
ereiSlion in eafe of thofe of the chapelry : but here it ap-
pears, that the chapel could be only an erection in eafe
and favour of them of the chapelry ; for they of the cha-
pelry buried at the mother church till Henry the eighth's
time, and then undertook to contribute to the repairs of
the mother church, i Salk, 164, 165. And altho' at
the firft fight, this may feem fo^newhat hard, yet it hath
this good foundation of reafon ; that all chapels, and^ all
difchargcs from attending divine fervice at the mother
church, were originally matters of grace and favour ; and
the cafe and convenience of particular inhabitants, ought
not to be purchafed with inconvenience and damage to the
mother church ; in whofe right it was fpecially provided
on thofe occafions, that nothing fhould be done in preju-
dice thereof. Gihf. 2C9.
How to be re- 6. The repairs of a chapel are to be made, by rates on
pai:ed. |-v^g landholders within the chapelry, in the fame manner,

as the repairs of a church ; and fuch rates are to be in-
forced by ccclcfiaftical authority. Gihf, 209.

And there fhall be the like appeals to the ordinary for

unequal afl'eflments, But all this muft be intended of

ancient chapels, and where this courfe hath been ufed ;
for if there be land given for the repair of them, or any
land or eftate charged by prescription to the repairs of
them, then the cuflom mull be obferved. Degge P. I.

C. 12*

Ho y to be fup- n. The curc of chapels of eafe, In many places, is to
be performed by thofe that have the cure of fouls in the
parifh. Degge P, i.e. 12.

And in fuch cafe, the incumbent of the mother church
being bound to find a chaplain there, may himfclf ferve
in the chapel, as well as his curate or chaplain. IFatf,
c. 32.

By agreement (of the bilhop, patron, and incumbent)
the inhabitants may have a right to elect and nominate a
capellane. Otherwife, the ancient cullom was, that he
was cither arbitrarily appointed by the vicar; or by him
nominated to the rector and convent, whofe. appjobat ion

did

;ic().

chapel. 28r

Jid admit him ; or was nominated by the inhabitants (as
founders and patrons) to the vicar, and by him prefented
to the ordinary : for cuflom herein was different : fome-
times a capellane was to be prefented by the patron of the
church to the vicar, and by him to the archdeacon, who
was then obliged to admit him ; at other times the lord
of the manor did prefent a fit perfon to the appropriators,
who without delay were to give admiflion to the perfon fo
prefented. Ken. Par. Ant. 589.

8. Chapels of eafe have the like officers for the moft Governmeat
part as churches have, diftinguiflied only in name. Degge ^^^° *

P. I. c. 12.

And are in like manner vifitable by the ordinary.
Degge P, I. c. 12.

9. It is faid by Rolle^ that if the queftion be in the Church or cfea-
court chriftian, whether a church be a parilh church, or \^-^^^^ °^ ^° ^
only a chapel of eafe, a prohibition lieth. 2 Roirs Abr»

291.

And Dr Watfon faith, if the defendant in a quare Im-
pedit fhall plead that the fame is a chapel and no church ;
this matter fhall be tried by the country, and not by the
bifhop. TVatf. c. 23.

But Dr Gibfon faith, that a chapel or no chapel ought
to be tried by the fpiritual judge : for a chapel is fpiritual,
as well as a church ; and when two fpiritual things are to
be tried, no prohibition fhall be granted ; in like manner,
as it goeth not, when a modus is pleaded, in a difpute
between two fpiritual perfons, to wit, the redlor and vicar^
about tithes. Gibf. 210.

But he fays, if a queflion is. depending as to the Umtis
thereof, whether a chapel of eafe or a parifh church, or
whether a chapel of eafe or a parochial chapel ; the fame
Ihall be tried, as to the limits, in the temporal court.
Gibf. 213.

When the queflion was, whether it were a church, or
chapel belonging to the mother church, the iflue was,
whether it had a font and burying place ; for if it had the
a^iminiflration of facraments and fepulture, it was judged
in law a church. 2 Injh 363.

If a perfon be patron of a chapel that hath parochial
rights, and doth prefent thereto by the name of a church,
and the prefentees hare been received thereto, as to a
church ; it is no longer a chapel but a church : and if a
difturbance happen upon any avoidance thereof, the pa-
tron may have his quarc impcdit as to a church. JVatf,
U 23. 2 Ivji. 363.

Hut

282 €!jape!* j

But on the contrary, a prefentation to a church hy the
name of a chapel, will not make it ceaife to be a church ;
for the cafe was, that in the time of Hen. 3. there werci
two re£lories, >f and 5, and the patron of J purchafed
the rc£i:ory of B. After which, conftantly prefentations
were to the church of J with the chapel of B. And it
was refolved, that altho* the patrons of J ever after the
faid purchafe, had prefented only unto the faid church of
^with the chapel of B ; yet B notwithftanding remained
in right a church, and the freehold of it in fufpence.
Watf, c, 23. Sav, 17, 18.

The particular duties, privileges, and appointments re-
lating to minifters officiating in chapels, are treated of
under the title €uUtt0*

Chapter. See DcatlS aUtI CljaptCtSf;

Cl^arttable tifes.

COncerrtng lands given in mortmain to charitable ufc^,
fee title ^o^tmam.

By the 43 El. c. 4. Whereas divers lands^ tenements^ rentSy
annuities^ profits^ hereditaments^ goods^ chattels^ money ^ andjhcks
cf money ^ have been heretofore given limited appointed and af-
figned^ as well by the queen^s majejly and her progenttorSy as by
fundry other well difpofed perfotis ; fome for relief of agedy im-
potent, and poor people ; fome for tnainte7iance ofjick andmairmJ
foldiers and marinerfy fchools of learningy free fchools andfcho-
lars in univerfities ; fome for repair of bridgeSy portSy havenSy
caufwaysy churches y fea banks y and highways ; fome for edu-
cation and preferment of orphans-, fome for or towards relief y
Jlocky or maintenance for houfes of corre^ion ; fome for mar-
riages of poor maids ; fome for fupportation aid and help of
young tradefmeny handier aftmeny and perfons decayed', and
other for relief or redemptim of prifoners or captives ; and for
aid or eafe of any poor inhabitants concerning payments of fif-
teens y fetting out of foldiers y and other taxes ; which never-
ihelefs have not been employed according to the charitable intent
of the givers and founders thereof by reafon of fraud, breaches
6f trujiy and negligence in thofe that Jhould pay, delivery and
fmploy the fam: : For remedy whereof it is enaflcd, that it

(hall

Jhall he lawful for the lord chancellor ar keeper of the great feci
^England, and for the chancellor of the dutchy, ^Lancaftcf
for lands within the county palatine of Lancafter, from time
to time to award commijjions to the bijhop of every feveral
diocefe refpe^ively and his chancellor (in cafe thsre Jhall he any
hljhop of that diocefe at the time of awarding the commiffion)
und other perfons of good and found behaviour ; authorizing
them thereby^ or any four or ?nore of them^ to inquire as well
by tlM oaths of twelve lawful tnen or more of the county^ as by
all other good and lawful wliys and meanSy of all and fingular
fuch gifts limitations ajfignments and appointments aforefaidy
and of the ahufis^ breaches of trujis^ negligences y mif employ"
mentSy not employing^ concealing^ defrauding, tnifconvertingy
or mifgovernmcnt, of any lands tenements rents annuities profits
hereditaments goods chattels money or flocks of money, heretofore
given limited appointed or affigned, or which hereafter jhall be
given limited appointed or affigned, to or for any the charitable
and godly ufes before rehearfed. And after, the faid commif-
fioners, or any four or more of them {upon calling the parties
interejied in any fuch lands tenements rents annuities profits
hereditaments goods chattels money and flocks of money) Jhall
make inquiry by the oaths of twelve w.en or more of the faid
county) whercunto the faid parties interejied may have their
lawful challenges) \ and upon fuch inquiry, hearing, and ex-
amining thereof, fet down fuch orders judgments and decrees^
as the faid lands tenements rents annuities profits goods chattels
money and flocks of money may be duly and faithfully employ ed^
to and for fuch of the charitable ufes and intents before rehearfed
ref^e^ively, for which they were given. Which orders, judg"
ments and decrees, not being contrary to the orders jiatutes or
decrees of the donors or founders, jhall Jland firm and goody
and be executed accordingly ; until the faine jhall be undone or
altered by the lord chancellor or lord keeper or chancellor of the
c&unty palatine of Lancafter refpeSiively, upon complaint by
any party grieved to be 7nade unto them, f. l.

Provided, that this Jhall not extend to any lands tenements
rents annuities profits goods chattels money or flocks of money^
given or which j})all be given to any college, hally or houfe of
Earning within tl)^ univerfities c/* Oxford or Cambridge; or
to any of the colleges of Wtikmin^^x, Eaton, cr Winchefter;
«r to any cathedral or collegiate church ; or to any city or town
corporate, or to any the lands or tenements given to the ufes
aforefaid within any fuch city or town corporate, where there
is a fpecial governor or governors appointed to govern or direSf
the fame ; or to any college, hofpital, or free fchool, which have
fpecial vifitoxs governors or overfeers appointed by their founders,
^ 2, 3.

. Provided

284 €|isntal)le vdts*

. l^rovided aJfo^ that this Jhall not he prejudicial to the jurif-^
'ididVion or'po^ver of the ordinary; hut that he may lawfully in
every cafe execute and -per form the fame ^ as tho* this a£l had not^
been made. f. 4.

Provided alfo^ that no perfon who Jhall have any of the fait
lands tenements rents annuities profits hereditaments goods chat^
ids money or flocks of money in his hands or poffeffion^ or Jhall
pretend any title thereunto^ Jhall be named a commifjioner or d
juror for any the caifes aforefaid^ or being named Jhall exe-
cicte or j'erve in the fame. f. 5.

And provided alfoy that no perfon who Jhall pur chafe or oh"-
tain, upon valuable confuleration of money or land, any eflate or"
interef in any lands tenements rents annuities hereditaments
goods or chattels apointed to any the charitable ufes ahove-
fnentioned, without fraud or covin, having no notice of the fame
charitable ufe, Jl:all be impeached by any decrees or orders of
the commiffioners ahovementioned, for or concerning the fame his
ejlate or interejl ; and yet neverthelefs, the faid commiffioners
cr any four of tbem Jhall and may make decrees and orders for
recompence to be made by any perfon, ivho being put in trufl, or
having notice of the charitable ifcs abovementioned, Jhall break
the fanu trufl, or defraud the fa7ne ufts, by any conveyance gift
grant leafe demife relcafc or converfton, and againji his heirs
executors or adminijlrators or any of the?n, having affets in law
or equity, fo far as the fame afjcts will extend, f. 6.

Provided always, that this a5lfnallnot extend to give power
or authority to the cc?nm:ffic?iers, to make any orders judgments
or decrees concerning any rnanors lands tencnements or other
hercdiia?ncnts affured or come unto the queen, or to king Henr^' '
the eighth, king Edward the fixth, or queen Mary, by a6t of.
parliament, furrcndcr, exchange, rcUnquiJhment, efcheat, at-
tainder, conveyance, or othcrzvifc ; and yet neverthelefs, if any
fuch 7namrs lands toiements or hercditam.ents, or any eflate rent^
er profit out of the fame, have been appointed to any of fir
charitable ufcs before cxprcfied, at any time Jhue the begimi:::
cf her ma'icflfs reign, that then the faid com?niJfioncrs or <.•,.►
pur or more of them may make orders judgments and decrees
concej'ning the fa?ne, according to the purport and meaning of"*
this a5l as before is mcjztioned, the faid lajl mentioned provijf^
notviithjlanding. f. 7.

And all orders judgments and decrees of the faid commiffioners
or of any four or ?norc cf them fijallbe certified wider their feals
into the court of the chancery «?/'Kn gland, or the court of the
chancery luithin the county palatine o/'Lancafler refpeiflivelyy
within fuch convenieht time fis J})all be lirnited in the faid com-
miffmi : And the fiid hrd chancclhr or lord keeper^ and the

fuTd

C!)ati'table ufes. 285

fmd chancellor of the dutchy^ Jhall take fuch order for the dut
execution thereof^ as to them Jhall feern fit and convenient, L

8, 9- .

jind if after any fuch certificate made^ ajiy p erf on Jhall find

Inmfelf grieved with any of the fald orders judgments or de-
crees ; he may complain to the f aid lord chancellor or lord keeper
or chancellor of the dutchy refpeSiively^ for redrefs therein:
who may upon fuch complaint^ by fuch courfe as to their wif-
doms Jhall feem meetejl^ the circumfiances of the cafe confix
dercd^ proceed to the examination^ hearings and determining
^jereof; and upon hearing thereof may annuls diminijh^ alt^r^
or enlarge the f aid orders judgments and decrees^ as to them
Jhall be thought to fiand with equity and good confidence^ accord-
ing to the true intent and meaning of the donors and founders
thereof \ and tax and award good cofls of fiuit by their dificre-
tions, againfi fiuch perfions as they Jhall find to complain unto
them without juft and fiufficient caufe^ of the faid orders jiidg-,
ments and decrees, f. 1 0.

S. I. Some for relief ^^c.'] Money was given to main-
tain a preaching minifter: this is not a charitable ufe
named in the ftatute. Yet by the lord keeper and two
judges it was decreed to be good, and the ufe a charitable
ufe within the equity of the ftatute ; and the executor
was ordered accordingly to pay the money for the main-
tenance of it. Duke's Char, U/I 82.

Schools ofi learningl A fchool, unlefs it be a free fchcol,
is not a charity within the provifion of this act; and con-
fequently, the inhabitants have not a right to fue in the
name of the attorney general. 2 Vern. 387. Vin, Tit,
Charit. ufes.

To the hijhop of every fever al dioiefie rcfpe^fively'] It was
refolved in the 44 EL by Egerton, Popham, Anderfon,
and Coke attorney general, that the fee being full at the
time of fealing the commiflion, if the bifhop is not nam.e.d
commifTioner, the commiffion is void; but if he be named,
it is not requifite that he be prefent at the execution, for
that none is of the quorum ; but any four or more may
execute the fame, without the prefence of the bifhop or
his chancellor. Duke 62, 63.

In cafe there Jhall he any lijhopi It was refolved in the laft
mentioned cafe, that if the fee of the biftiop be void at*
the fealing of the commiilion, then the bifhop need not
to be named acommiilioncr, neither his chancellor. Or if
the biflion be named a commiirioner, and die before th(^

certificate

286 ■ Charitable nits.

certificate returned ; this doth not avoid the commiffioilj.
but the other commiifioners may proceed. Duke 63.
Js well by the oaths of twelve lawful men or more of the
' countyl That is, (as was refolved in the cafe of the fchool
of Rugby^) of that county where the lands do lie, and not
where the charity ought to be employed, in cafe the
counties are different. But five years after, to wit, ijt
the 9 C, I. it was further refolved, in the cafe of Eafi
Grin/ledy that if a rent be granted out bf lands in fevcral
counties, for maintenance of charitable ufes in one coun-
ty; the commiflioners in that county where the cha-
ritable ufe is to be performed, may make a decree to
charge the lands in other counties with an equal contri-
bution to the payment of the faid rent, and that there
need not feveral inquifitions in each county, for that the
rent is an intire grant, by the deed or will. Duh 64,
80.

As by all other good and lawful ways and means'] Such
are, former inquifitions, witnefles, rentals, accounts,
eftreats, and the like, and alfo their own proper know-
ledge : by which means they may fupply the defeats of
the inquifition, in matters of particularity and circum-
ftance. Duke 150.

Of all and fingular fuch gifts ^ limitations^ afjignments^ and
appointments'] It hath been often refolved, that this llatute
doth fupply all the defeats of afTurances, where the donor
is of a capacity to difpofe, and hath fuch an eftate as i^
any way difpofeable by him ; as if a copyholder difpofeth
©f copyhold lands to a charitable ufe without a furrender,
or tenants in tail convey lands to a charitable ufe without
a fine, or if a rcverfion be granted without attornment or
inrollment, or if in the deed by which the charitable ufe#
were firft created and raifed there be mifnamings ; in
thefe, and other like cafes, the defects are fupplicd by
this ftatute, becaufe the donor had a difpofing power of
the eftatc, and thefe are good limitations and appointments
within the prefent flatute. Duke 84, 85.

Thus lands were given to the churchwardens of a parifh,
to a charitable ufe ; tho* the devife was void in law, yet
decreed good in chancery, by the v/ords limited and ap-
pointed vfkh\n the {{^tutc. Duke 11^.

But a parol devife to a charity out of lands, being de-
feftive as a will, cannot be fupported as an appointment j
becaufe being defective as a will, which was the manntJif
of conveyance the teftator intended to pals it by, it cart

have

Cijari'tawe ntts. 287

iiave no effeft as an appointment^ which he did not intend :
and of this opinion the lord chancellor feemed to be, and
decreed accordingly in the principal cafe. Prec, Ch, 391,

• Upon calling the parties interejied] It was refolved in the
(kid cafe of Eaji Grinjled^ that tho' the commiffioners
make a decree without giving fuch notice to the parties,
it is good ; and if the parties upon their appeal do take
exception that they had not any notice, fuch defe6l fhall
not avoid the decree, unlefs they fhew (to the fatisfa6tioA
of the lord chancellor) that thereby they really loft the
benefit of exception to fome commiflioner, or challenge
to fome juror ; the intent of fuch notice being, that they
may make their lawful exceptions and challenges. Duke
121.

S. 2, 3. TVhich have fpecial vijltors"] In the cafe o^Mor*
peth in Northumberland, in the 5 Cha, i. and after that,
in the cafe of Sutton Colfield^ in the county of Warwick^
in the 11 Cha, i. it was refolved, that the meaning of
this claufe is, where the land is given to perfons in trufl
to perform a charitable ufe, and the donor hath appointed
fpecial vifitors to fee that the truftees perform the ufe ac-
cording to his intent ; in which cafe, if the truftees de-
fraud the truft, the commiflioners cannot meddle, but the
vifitors are to perform it. But where the vifitors are
truftees alfo, there the commiffioners may, by their de-
cree, reform the abufe of the charity ; for otherwife, fuch
breach of truft would efcape unpuniflied, unlefs in chan-
cery or in parliament ; which would be a tedious and
chargeable fuit for poor perfons, Duke 68, 69.

S. 10. Hearing and determining thereof] It was refolved
In the 2 Cha, i. that fuch determination once made, may
not be re-examined upon a bill of review, as is ufual in
other cafes in chancery ; but that here the decree is con-
clufive, becaufe it takes its authority by the a6t of par-
liament, which mentions but one examination ; and it is
not like the cafe, where the chancellor makes a decree
by his ordinary authority. Cro. Car, 40.
» But in the year 1643, it was refolved by the judges
and king's council, affiftants in the houfe of peers, ttiat
in fuch cafe the party grieved may petition the king
in parliament, and have his complaint examined there ;
and fo the decree may be confirmed, altered, or annulled ;
and then be final. AH which was actually done, in the
forefaid year, and purfuant to the forefaid refolution, on

occafion

288 €l)atitiihU nf ts. \

occafion of a decree of the lord keeper Coventry, in tho i
Q2iiQ, oi Eajl Ham in EJfex, Duke 62.

According to the true intent and meaning of the donors and
founders'] E. lO G. 2. Attorney General 2.nd Stephens. The
cafe was, Dr Ratcliffe, the late phyfician, by will de-
vifed 300 1 a year to two perfons, to be chofen by the
archbifhop of canterbury and certain other truftees, out
of Univerfity college in Oxford j which fum he ordered
to be paid to them for ten years for their maintenance,
£ve years whereof they were to fpend in England, in the
itudy of phyfick, and the other five abroad. The de-
fendant was one fo chofen, and ftudied here according to
the directions of the will, and for that time he received
his five years falary ; but afterwards did not go abroad,
on account of his ill ftate of health ; and thereupon in
tlie year 1730 refigned to the truftees, who accepted his
refignation, and chofe another in his room ; and in the
year 1735 the prefent information was exhibited againft
the defendant, that he might account for the five years
falary by him thus received. For the defendant it was
argued, that in a late cafe which came before the houfe
of lords, between Gaudy and Anjiis^ upon an appeal,
their lordftiips were of opinion that the word maintenance
included education; and therefore, tho' that word was
ufed in the prefent will, education muft be intended by it
as implied ; and when the defendant had fpent half of his
time in his education here in England, and was prevent-
ed by ill health from going abroad, and thereupon had
refigned, and his refignation had been accepted, and
thereupon another was chofen in his ftead, it was fub-
mitted that the prefent bill muft be thought an unreafon-
able one. And the lord chancellor was of that opinion^*
and difmifled the information. 2 Jur, EccL 157.

Cojfs .... againji fuch perfons as they Jhall find to cc?n~
plain zvithout jujl caufe'] But this order being given and
limited by act of parliament, no cofts (if the order judg--
mcnt or decree be annulled diminiflicd or enlarged) ought.
to be given by the lord chancellor to the party complain-
ing. 2 Injl. 712.

In like manner, xhc co??mnJfio7icrs by the a6t have no*
power to award cofts. 7*1iiis in the cafe of Humphrey
IVharton^ cfquire, againft Charles and others in behalf of
the poor of IVarcup and Bletarn in the county of Wejimor-^
hnd^ H, 25 C. 2. There being an annuity of 3I. 6s. 6d.^
i-fluing out of a clofc called Meadow Powes in Kirkhy

Cljatifeable ttfes. 289

^org in the faid county, to feveral charitable ufes, which
clofe was purchafed by the faid Humphrey Wharton ;
the commiflioners for charitable ufes decreed, that the
faid Humphrey (hould pay the arrears of the faid charity,
and alfo 61. 13s. 4d. cofts. Humphrey excepted to the
money for cofts, as not within the power of the com-
miflioners to decree. And by the lord chancellor the
faid decree, as to fo much thereof as concerned the faid
cofts, was reverfed. Cha. Ca, Finch, Si*

Charity briefs. See TBjlCfSf*

Charles the firft his martyrdom. See J^DllDapSr^

Charles the fecond's reftoration. See ^Oii5tJJ0*

Chefible. See CafUla*

Cheft for alms. See CfjUtClj^

I, T? D M U N D. If a woman die In child-birth, and
Hj this Jhall well appear, Jhe /hall be cut open, if it
hi believed that the child is living, hut let them take care
that the woman's mouth be kept open. Lind. 307.

That is, with a piece of wood, or key, or any other
thing, (o that the air may enter, that the child be not
fufFocated for want of refpiration. Lind, 307.

2. Edmund. Women Jhall be often admonijhed, to nurfa
their children cautioufy^ and not lay the children clofe to
them in the night, that they be not overlaid : and that they
leave them not alone by the water fide. Lind. 307.

3. Rubrick before the office for the churching of wo-
men. The woman, at the ufual time after her delivery, Jhall
come into the church decently apparelled, and there Jhall kneel
down in fome convenient place, as hath been accujiomed, or as
the ordinary Jhall direSf,

Decently apparelled] In the reign of king James the
firft, an order was made by #ie chancellor of Norzvichy
that every woman who came to be churched, fhould come
covered with a white veil : a woman refufing to conform,
was excommunicated for contempt, and prayed a proci-
hibition ; iilledging, that fuch order was not warranted

VgL, L U by

290 CDiltJ^bttt!).

by any cuftom or canon of the church, of England. The
judges defired the opinion of the archbifhop of Can-
terbury ; who convened divers biftiops to confult there-
upon : and they certifying, that it was the ancient ufage
of the church of England, for women who came to be
churched to come veiled, a prohibition was denied. Palm.
296.

4. Rubrick at the end of the oifice for churching of
women. The woman that cometh to give her thanks^
muji offer accujlomed offerings ; and if there be a com--
munion^ it is convenient that Jhe receive the holy com--
munion,

Accujlomed offerings'] E. 2 G, 2. Nay lor and Scott. In
a prohibition granted to ftay a fuit in the fpiritual court
by the vicar of Wakefield, grounded upon a cuftom for
a due for churching of women, which was alledged to
be this ; viz. that every inhabitant keeping an houfe and
having a family, in Wakefield in Yorkfhire, and having
a child or children born in that parifh, at the time of
churching the mother of the child, or at the ufual time
after her delivery when fhe fhould be churched, have
time out of mind paid lod. to the vicar of that parifh,
for or in refpe6l of fuch churching, or at the ufual
times when the ffiother of fuch child {hould be church-
ed, IfTue was taken upon the cuftom, and a verdidl
was found for the defendant, that there was fuch a.
cuflom. And upon motion of the plaintiiF in arrefl of
judgment, to prevent the granting a confultation, the
court being of opinion that k was a void cuflom (firft,
becaufe it was not alledged what was the ufual time the
women were to be churched, and therefore uncertain;
fecondly, becaufe it was unreafonable, becaufe it obliged
the hufband to pay, if the woman was not churched at
all, or if fhe went out of the parifh, or died, before
the time of churching) judgment was arrefted. L. Raym,
1558.

Which cafe, by the author of a book called Jura Ec*

ckftajiica^ is thus reported more at large : A libel was

in the confiflory court of York, founded upon a cuflom,
that every one keeping houfe, and having children in the
parifli, fhould pay 10 d a child to the parfon, at the
time the wife is or ought fo be churched. The counfef
apprehended it to be an unreafonable cuflom, that the
parfon fliould have money for doing of nothing, and fo
moved for a prohibition ; for they faid the proper way
was if the wife would not be churched at the proper

time.

€f^m^mtti). 291

time, to force her to it by ecclefiaftical Ceiifui'es. After-
wards, the cuftom being denied, the fame was tried on a
prohibition, and a verdi^l given for the cuRom. Then
it was moved in arreft of judgment j i. That the cuftom
is unreafonable in itfelf : And, 2. That it is uncertainly
fet forth. To the firfl, it was anfwered, that religion
requires a woman fhould return thanks to god in a pub-
lick manner, for fo great a deliverance ; and therefore it
is but fit that he who aflifts her in fuch office fhould
have fome requital. To the fecond, it was faid, that
there are other cafes where the temporal courts allow the
ecclefiaftical courts to fet forth matters equally uncertain
as in the prefeni: cafe, even upon libels on cuftoms, and
have not granted prohibitions 5 as where a libel was up-
on a cuftom, that the farmers of fuch a farm have al-
ways laid out 8 s or thereabouts for cakes and ale in the
perambulation, and yet held to be fufficiently fet forth ;
and befides, it was faid, if the court was in doubt, whe-
ther the proceedings in the courts below were ufually in
fo uncertain a manner, the proper method would be to
write to them to certify how their proceedings are there ;
to this purpofe was cited the (aforefaid) cafe, where a
libel was for a woman not coming to be churched in a
veil, whereupon a prohibition being moved for, the court
wrote to the archbiftiop to certify how the canons in that
cafe were, and he certified the canon to require it. It
was obferved further, that tho' indeed the woman's fit-
nefs to be churched is unknov/n to the temporal courts,
yet to the ecclefiaftical courts, it is well known, and
therefore they might well have proceeded upon it below.
The canon law fays, that a month is a reafonable time
for womens coming to be churched after their deliverance,
unlefs in cafe of great weaknefs ; and that ftandard is the
proper one to regulate this cuftom by ; and therefore the
court below ought to be allowed to go on in their
proceedings. But by the court ; We are not to con-
sider the methods by which this fee may be afcertained,
but only that it is not certain as it ftands upon the libel ;
and therefore upon the libel we ought not to fufter them
to proceed. And they faid the proper method in this
cafe would have been, for the plaintiff to fet forth in the
libel, the proper time when Women ufually are fit to b(i
churched, and then to have averred, that the defendant's
i wife was not churched within that time. And upon
I the whole matter judgment was arrefted. Jur, EccL
■ V, 2. p. 350.

U 2 CIjo^cpiCcopu

292

/^HOkEPISCOPI, local bifhops. In the ancient
^ church, were perfons delegated by the bifhop to ex-
erclfe epifcopal jurifdidion> within certain diftrI6ls.

r> H R I S M Ey was the holy oil, with which here*
^ tofore all infants baptized were anointed : This
was made by the bifhops ; and, by a conftitutlon of
archbifhop Peccham, was to be renewed once every year.

Cf)nToine.

/^HR IS 0 ME, in the office of baptlfm, was a white
^ vefture which the prleft did put upon the child, fay-
ing, Take this white vefture for a token of innocency ;
and fo on. Gibf. 366.

Chriftening. See 15nptffm.

I. Founding of churches,

II. Confecration and dedication of churches,

III. Chancel,

IV. Ik,

V. Church yard, .

VI. Repairs.

VII. Church feat.

VIII. Goods

Cf)iircl> 293

VJII. Goods and ornaments of the church.

IX. Church rate.

X. Churches not to he profaned,

XI. Church way.

I. Founding of churches.

TH E ancient Saxon word is cyrc^^ the Danifh kircke^
the Belgick kercke^ the Cimbrick kirkia or kurk ;
probably from the Greek word Ky^taxov, belonging to the
lord, or xy^iou oxit^^y the lord's houfe : fo that we have
loft the ancient pronunciation of the word {except in
the northern parts of England, and in Scotland) by .
foftening the letters c or ch^ as we have done in many
cafes 5 which letters the ancient Greeks and Romans al-
ways pronounced hard as, the letter k.

Lord Coke fays, by the common law and general cu-
flom of the realm, it was lawful for bifhops earls and
barons to build churches or chapels within their fees ; and
hereof king John informed pope Innocent the third (na-
ming only, honoris caufa, the bifhops and baronage of
England, albeit this liberty extended to all), with re-
queft, that this liberty to the baronage might be con-
firmed. To thefe letters the pope made this anfwer,
^od enim de confueiudine regni Anglorum procedere reg'ia fe-
renitas per fuas lit eras intimavit^ ut lie eat tarn epifcopis^ qua?n
comitlbus et baronibus, ecclejias in feodo fuo fundare ; laicu
quidem principibus id licere nullatenus denegamus^ dummodo dio'
cefani epifcopi eis fuffragetur ajfenfus^ et per novam JiruSfu^
'ram veterum ecclejiaru7n jujiiiia non Icedatur, Whereas the
baronage had abfolute^ liberty before, now the pope ad-
deth the confent of the bifhop ; but that addition bound
not, feeing it was againft the liberty of the baronage -war-
ranted by the common law : and he fays he would not
have rehearfed this cpiftle, but that it is a proof what the
general cuftom of the realm was, concerning the build-
ing of churches by the baronage of England. And al-
beit they might build churches without the king's li-
cence, yet could they not ere£t a fpiritual politick body
to continue in fucceffion, and capable of endowment,
without the king's licence : but by the common law,
before the ftatutes of m.ortmain, they mic;ht have en-
dowed this fpiritual body once incorporated, perpctuis fu-
iuris temporibus, without any licence from the king or any
'■ther. 3 /w/?. 201, 202. Which body, fy incorporat'.-d,

U 3

294 CDllttl)*

is not diflblved, tho' the church is drowned, or other-
wife deftroyed ; but, in that cafe, one may be prefented
to the redtory, and fhall be liable to annuities and other
charges : the church, in confideration of law, being
properly the cure of fcuh and the right of tithes. Gibf.
189.

But Dr Gibfon obferveth on the contrary, that no per-
fon may ered: a church, without the leave and confentof
the bifliop. And this, he fays, is agreeable to the rules'
both of the civil and canon law, and was made an ex-
prefs law of the church of England, many years before
the reign of king John, viz. in the council of Weftmin-
fter in the time of king Stephen. Nor could this right
of the bifhop be defeated by the exemptions of religious
perfons from epifcopal jurifdidlion ; who might not, un-
der colour of fuch exemptions, eredt churches in any
part of their pofleflions not exempt, without leave frorn
the bifhop ; as we find it fpecially adjudged, in the body-
pf the canon lav/. And to this, the pope's anfwer to
king John is exa6lly agreeable, laicis quidem frincipibus id
licere nullatenus denegamus^ dwnmodo diocefani epifcopi eis
fuffragetur ajfenfus. And king John's letter doth not re-
late to a right of ere61:ing with or without licence ; fince
the occafion of it was, the building of a collegiate chapel
Jjy the archbifhop, who was is own licence ; and the only
objection was, that the building of it would be prejudi-
cial to the church of Canterbury, Gibf. 188.

But it is to be obferved, that thcfe two aflertions are
not contradi6lory ; for the one fays only that by the
civil and canon law it might not be done, and the other
fays that it might be done by the common law : altho'
lord Coke produccth no inftances, before the reign of
king John or after, of churches eredled without the
licence of the diocel'an. And it fcemcth to amount to
the fame thing, fo long as the bifhop hath power (untd
which lord Coke affenteth) after the church is created to
with-hold or deny the confccration.

And not only the bifliop, by refufing to confecrate,
may hinder the eflabh'flnncnt of a new church or chapel
in any parifli \ but alfo any other perfon thinking him-
lelf injured thereby, as by incroaching upon his ground*
ftopping hii way, or the like, may apply to the temporal
courts, who (as they fee caufe) will grant him rcdrefs.

The ancient manner of founding churches was, after
the founders had made their application to the bifhop
of the dioccfc, and had his licence, the bifliop or hi?

COIT^-

C^ttrcl). 295

-commlffionefs fet up a crofs, and fet forth the ground,
where the church was to be built , and then the foun-
ders might proceed in the building of the church : and"
when the church was finiflied, the bifhop was to confe-
derate it, but not till it was endowed; and before, the
^facraments were not to be adminiftred in it. Degge^
part I. c. 12.

For albeit churches or chapels may be built by any of
the king's fubje^ls, yet before the law take knowledge of
them to be churches or chapels, the bifhop is to confe-
crate or dedicate the fame : and this is the reafon, that a
-church or not a church, a chapel or not a chapel, {hall
be tried and certified by the bi(hop. 3 Inji, 203.

11. Confecration and dedication of churches,

1. The law (as was faid before) takes no notice of No church till
V churches or chapels, till they are confecrated by the bi- confecratiun,

ihop: But the canon law fuppofes, that with confent of
the bifhop, divine fervice may be performed, and facra-
ments adminiftred in churches and chapels not confe-
crated ; inafmuch as it provides, that a church fhall have
the privilege of immunity, in which the divine myfteries
are celebrated, altho' it be not yet confecrated : and there
are many licences to that effedl (granted on fpecial occa-
fions) in our ecclefiaftical records. Glhf, 190.

2. And after a new church is erected, it may not be No conCecmlon
. confecrated, without a competent endowment. And this ^^^°^^ cndow-
^as made a law of the church of England in the i6th

canon of the council of London, A church Jhall not he
confecrated^ until neceffary provifwn be made for the prieji.
And the canon law goes further ; requiring the endow-
,ment, not only to be made before confecration, but even
to be afcertained and exhibited before they begin to
build. And the civil law is yet more ftrid ; enjoining,
that the endowment be acSlually made, before the build-
ing be begun. Gibf 189.

Which endowment was commonly made, by an allot-
ment of manfe and glebe by the lord of the manor ; who
thereby became patron of the church. Other perfons
alfo, at the time of dedication, often contributed fmall
portions of ground : which is the reafon, why in many
parifties the glebe is not only diftant from the ma-
nor, but lies in remote divided parcels. Ken» Par, Ant,

222, 223.

U 4 3. It

2g6 Cf)tttClj»

Confecration 3- It appcars by good chronology, that the firll wh(3

enjoined. decreed that churches (hould be confecrated, was Euginus^

a greek, and prieft of Rome 5 who was the firft that
llyled himfelf pope, in the year 154. God, 49,

Afterwards the fame was inforced in this realm by
a conftitution of Otbo^ in this manner : TJ)e dedication
of churches is known to have had its beginning under the
eld tcjiament^ and was ohferved by the holy fathers under
the new tefiament ; under which it ought to be done with
the greater care and dignity^ hecaufe that under the old
iiejlament were only offered facrifices of dead animals^
but under the new tefiament is offered for us upon the
altar by the hands of the priej}^ the heavenly living and
true facrifice the only begotten fan of god. Wherefore the
holy fathers provided^ that fo fuhlime an office Jhould not
he performed (unlefs in cafe of necejjity) but in places de^
dicated. Now hecaufe we have feen and heard^ that fo
wholcfome a myjiery is contemned^ or at leafl neglefied^ by
■ feme ; having found many ■ churches, and fome of them ca-*
thedralsy which although they have been built of old time,
yet have not as yet been confecrated with the oil of fane-
tif cation : Therefore being defirous to remedy fo dangerous
a negle5i, we do decree, that all cathedral, conventual, and
parochial churches, which are now built and the walls there-
of perfected, he confecrated by the diocefan btjhops, or others
authorized by them, within two years : And let it fo be
done within the like time, in all churches hereafter to be
built. And to the end that fo wholfome a myflery and
ordinance may not pafs into conte?npt ; if fuch places he
not dedicated within two years from the time of the finijhing
thereof, they jhall he interdi^ed from the folemnities of the-
mafs, until they be conjecrated, unlefs they be excufcd for
jojue reafonable caufe. Moreover, by the prefcnt ordinate'
we do forbid the abbots and reSlors of churches, to pull
down ancient confecrated churches, under pretence of build-
ing larger or more beautiful, without licence and covfcnt of^
the diocefan : And the diocefan Jhall diligently confidcr, zvhe- '
iher it he expedient to grant or to deny fuch licence ; and
if he jhall grant the fame, let hi?n take care that the ivork be
finijhed as foon as may be, Atlion 7.

Inter d'l^.led from the folemnities of the 7jmf'\ That is,
from the folemn or high mafs; but not from the com-
'nion celebration of maf^, or other inferior offices.

Athov 7.

C!)tttc!j. 297

And alfo by a conftitution o^ Othobon : The reSfor or
vtcar of an unconfe crated churchy Jhall apply to the bijhop [if
it can conveniently be done)^ other wife to the archdeacon that
he may apply to the bijhop^ within a year after the building of
the churchy for the confecration thereof : upon pain that fuch
reSior vicar or archdeacon making default^ Jhall he fufpended
from their office till they comply : and the bijhop Jhall exaSf
nothing therefore^ but the accujiomed procuration, Athon

83-

4. The confecration of churches may be performed. Time of confc-
jndifFerently, on any day : So it was eftablifhed by a elation.
decretal epiftle of pope Innocent, the third. And ac-
cording to the calculation of learned men, Conftan-

tine's famous dedication of the church of Jerufalem,
in a full fynod, was on a faturday, and not on the fun-
day. Gibf 189.

And this confecration ought to be in the time of divine
fervice. The glofs upon the canon law maketh a doubt •
whether this is not of the fubftance of the confecra-
tion : But be that as it will it is certainly very decent.
Gibf 189. ...

5. The emperor Juflinian, in his care of the church, Form ofconfc-
hath prefcribed a form of confecration of churches [or nation.
rather, of the ground upon which it is to be built]

in this manner : His law is, " l^hat none fhall prefume
^' to ere(5l a church, until the bifhop of the diocefe hath
*' been firlt acquainted therewith, and fhall come and
*' lift up his hands to heaven, and confecrate the place
*' to godr by prayer, and ere6i: the fymbol of our fal-
*' vation, the venerable and truly precious rood." God,
47.

In the church of England, every bifhop is left to his
own difcretion, as to the form of confecrating churches
and chapels: Only by the flatute of the 21 H. 8. c. 13.
for limiting the number of chaplains, it is there affign-
^d as one reafon why a bifhop may retain fix chaplains,
becaufe he mufl occupy that number in the confecration
of churches.

There was a form drawn up in the convocation, in
the year 1661 (occafioncd, as fome think, by the offence
taken at bifhop Laud's ceremonious manner of con-
fecrating St Katharine Creed-Church in London ;) but
this was not authorized, nor publifliQd. Gibf 189.
Johnf. 20.

Which form of bifhop Laud's in the aforefald in-

Kce, was thus : He came on a funday, being the i6th

298 CDtttti).

day of January 1 630, to the weft door of that church 5
and fome perfons, who were prepared for that pur-
pofe, fpoke aloud thefe words, Open^ open ye everiajiing
dcors^ that the king of glory tnay enter in. Immediately
the doors were opened, and the bifliop and fome other
doftors entered ; then he kneeled, and with eyes lift-
ed up, and his arms fpread, he pronounced the place
to be holy, in the name of the father, and of the
fon, and of the holy ghoft. Then he threw fome of
the duft of the church into the air, feveral times, as
he approached the chancel ; and when he came to the
fails of the communion table, he bowed towards it
feveral times. Then they all went round the church,
repeating the looth pfalm, and afterwards a form of
prayer, which concluded thus ; We confecrate this churchy
and fet it apart to thee, O lord Chrijfy as holy ground,
not to be profaned any more to common ufe. Returning
to the communion table, he pronounced curfes againft
thofe who fhould profane that place, and at every
curfe he bowed towards the eaft, and faid. Let all the
people fay Amen. Afterwards he pronounced bleflings
on all thofe who fhould be benefadlors, and repeat-
ed. Let all the people fay Amen. Then there was a fer-
mon ; and after that the facrament was adminiftred j
and when he came near the altar, he bowed feven
times ; and coming to the bread he gently lifted up
the napkin, which he laid down again, and with-
drew, and bowed feveral times ; then he uncovered
the bread, and bowed as before ; the like he did with
the cover of the cup; then he received the facrament;,
^nd gave it to fome principal men ; after which, many
prayers being faid, the folemnity of the confecratioii
ended. 2 Rufiw. Hift. Coll. 77.

Again, in the year 1712, a form of confecrating
churches and chapels and church yards or places of bu-
rial, was fent down from the bifhops to the lower houfe
of convocation, on the fecond day of April ; and was
altered by the committee of the whole houfe, and re-
ported to the houfe on the ninth day of the fame month ;
which was ao:recd to with fome alterations : Which
form, as it did not receive the royal afTent, was not
injoincd to be obfcrvcd 3 but is now generally ufedj and
is as follovvb :

Preparations

Cj)tttc!j« 299

Preparations in order to the qonfecrating of a church.

The church is to be pewed, and furntjhed with a reading
defk^ common prayer^ and great hible^ and one or more fur-
fUces^ as alfo with a pulpit and cujhion^ a font^ and a com-
munion table y and with linen ^ ami veffels for the fame.

The endow7nent^ and the evidences thereof are to he laid hi-
fore the bijhop or his chancellor^ fome tim£ before the day ap^
pointed^ in order to the preparing of the a£f or fentence of coti"
fecration againfl that day.

An intimation of the bijhop' s intention to confecrate the churchy
with the day and hour appointed for it^ is to be fixed on the
church door at leajl three days before,

A chair is to be fet for the biJ})op on the north fide of the
communion table ^ within the rails ; and another for his chan-
cellor without the rails ^ on the fame fide.

All things are to be prepared for a communion. The church
Is to be kept jhut^ and empty ^ till the bijhop comes^ and till it
.be opened for his going in.

The form of confecrating a church.

The bijhop is to be received at the wejl door^ or at fome if the church to
other part of the churchy or churchyard^ which is moji conve- beconfecrated be
nient for his entrance^ by fome of the principal inhabitants, buU^tlnan'^old
. At the place where the bijhop is received^ a petition is 'to be parifh j then to
.delivered to him by Jome one of the perfons who receive him^ ^^."^^^ ^f^^^
praying that he will confecrate the church, place, the

The petition is to be read by the regifier, churchwardens.

The bijhop^ his chaplains^ the preacher,, and the ^^''^j/?^'* ^^^ *"^J°"n° hi-*"
is to read divine fervice^ together with the refl of the clergy^ ^bitants,
any other be prefent^ enie^ the church, and repair to the veflry^
or (if there be no veflry) to fome convenient part of the churchy
where, as ?nany as are to officiate put on their fever al habits ;
during which time, the parijhioners are to repair to their feats y
and the tniddle He is to be kept clear.

As foon as the church is quiet, the bijhop and his chaplains,
with the preacher and the minifier who is to officiate^ and the
refl of the clergy, if any other be prefent, return to the wefl
door, and go up the middle He to the communion table, repeat-
ing the lAfth pfalm alternately, as they go up, the- bijhop one
verfe, and they another.

Psalm XXIV.

I. The earth is the lord's, and all that therein Is : the
cprnpafs of the world, and they that dwell therein.

2. For

300 C!)ttrc!)»

2. For he hath founded it upon the feas : and prepared
it upon the floods.

3. Who fhall afcend into the hill of the lord, or who
ihall rife up in his holy place ?

4. Even he that hath clean hands, and a pure heart :
and that hath not lift up his mind unto vanity, nor fworn
to deceive his neighbour.

5. He fhall receive the blefTing from the lord : and
righteoufnefs from the god of his falvation.

6. This is the generation of them that feek him: evea
of them that feek thy face, O Jacob.

7. Lif. up your heads, O ye gates ; and be ye lift up,
ye everlafling doors : and the king of glory fhall come in.

8. Who is the king of glory ? it is the lord, ilrong
and mighty, even the lord mighty in battle.

9. Lift up your heads, O ye gates ; and be ye lift up,
ye everlafling doors : and the king of glory fhall come in,

10. Who is the king of glory ? even the lord of hofls,
he is the king of glory.

1'hc h'tjhop and his chaplains go within the fails ; the hijhop
to the )iQrth fide of the communion table ^ and the chaplains ■ to
the fotith fide : The mijvJter officiating goes to the reading defk^
end the preacher to fome convenient feat near the pulpit.

The hijhip^ fitting in his chair^ is to have the injirument or
ruiTint be a inflruments of donation and endowment prefented to him by the
new church ^^^^^ founder^ cr fome proper fiihflitute ; which he lays upon the
in an old parilh. ^^^,,^^,.^^,/^„ ^^^/^.^ ^„^ fjj^^ flanding up^ and turning to the

congregation^ fays^ ;

Dearly beloved in the lord 5 forafmuch as devout and'
holy men, as w^ell under the law as under the gofpel,
moved either by the fecret infniration of the blcfTed fpirit,
or by the exprefs command ot god, or by their own rea-
fon and fcnfe of the natural decency of things, have
erected houfcs for the publick worfhip of god, and fepa-
rated them from all profane and common ufes, in order to
fill mens minds with greater reverence for his glorious ma-
jefly, and affecSt their hearts with more devotion and hu^
mility in his fcrvicc ; which pious works have been ap-
proved and graciouflv accepted by our heavenly father :
Let .us not doubt bi:t he will alfo favourably approve our
godly purpofe, of fctting apart this- place in folemn man-
ner, to the performance of the fcvcral offices of religious,
worfhip, and let unfaithfully and devoutly beg his blef-'
fuig ou this our undertaking.

This not need-

CJittcl), 301

7 hen the hijhop kneeling^ fays the follow'mg prayer*

O eternal god, mighty in power, and of majefty in-
comprehenfible, whom the heaven of heavens cannot con-
tain, much lefs the walls of temples made with hands,
and who yet haft been gracioufly pleafed to promife thy
efpecial prefence in whatever place even two or three of
thy faithful fervants fhall alTemble in thy name, to offer
up their praifes and fupplications unto thee 5 vouchfafe,
O lord, to be prefent with us, who are here gathered to-
gether, with all humility and readinefs of heart, to con-
fecrate this place to the honour of thy great name ; fe-
parating it from henceforth from all unhallowed, ordi-
nary, and common ufes, and dedicating it to thy fervice,
for reading thy holy word, for celebrating thy holy fa-
craments, for oiFering to thy glorious majefty the facri-
iices of prayer and thankfgiving, for blefling thy people
in thy name, and for the performance of all other holy
ordinances : Accept, O lord, this fervice at our hands,
and blefs it with fuch fuccefs, as may tend moft to thy
glory, and the furtherance of our happinefs both temporal
and fpiritual, thro' Jefus Chrift our bleffed lord and fa-
viour. Amen»

After this, let the hijhop Jiand up^ and turning his face toward
the congregation, fay :

Regard, O lord, the fupplications of thy fervants ; and
grant, that whofoever {hall be dedicated to thee in this
houfe by baptifm, may be fan6i:ified with the holy ghoft,
delivered from thy wrath and eternal death, and received
as a living member of Chrift's church, and may ever
remain in the number of thy faitliful and ele£l children.
Amen,

Grant, O lord, that they who at this place fhall in their
own perfons renew the promifes and vaws made by their
fureties for them at their baptifm, and thereupon fhall be
confirmed by the bifhop, may receive fuch a me?fure of
thy holy fpirit, that they may be enabled faithfully to
fulfil the fame, and grow in grace unto their lives end.
Amen.

Grant, O lord, that whofoever fhall receive in this
place the blefled facrament of the body and blood of
Chrift, may come to that holy ordinance with faith, cha-
rity, and rrue repentance; and being filled with thy grace
ajii heavenly benedidlion, may to their great and endlefs
I comfort,

-02 CDttrtlj^

comfort, obtain remiflion of their fins, and all other benefita !
of his paiTion. Amen,

Grant, O lord, tliat by thy holy word which fhall be ^
read and preached in this place, and by thy holy fpiric,
grafting it inwardly in the heart, the hearers thereof may
both perceive and know what things they ought to do,
and may have power and flrength to fulfil the fame.
Amm,

Grant, O lord, that whofoever fhall be joined together*'
in this place in the holy eftate of matrimony, may faith-
fully perform and keep the vow and covenant betwixt '
them made, and may remain in perfedl love together unto*
their lives end. Amen,

Grant, we befeech thee, blefled lord, that whofoever'.
fhall draw near unto thee in this place, to give thee thanks ^
for the benefits which they have received at thy hands,
to fet forth thy mod worthy praife, to confefs their fina '
unto thee, and to afk fuch things as are requifite and ne- 7
cefTary, as well for the body as the foul ; may do it with ^
fuch ftedfaftnefs of faith, and with fuch ferioufnefs, af-
fe<5lion, and devotion of mind, that thou mayeft accept
their bounden duty and fervice, and vouchfafe to give
whatever in thy infinite wifdom thou (halt fee to be moft'
expedient for them : All which we beg for Jefus Ghrift
his fake, our blefled lord and faviour. A^nen,

The bijhop fitting in his chair,

TThcn the fentence of confecration is to he read by the chan* ,
cellor^ arid figned by the bifiop^ and by him ordered to be re" ■
gifiertd^ and then laid upon the comiuunion table.

After thisy the p erf on appointed is to read the fervice for tbe^
day^ except where it is other ivifc dire^ed.

Proper pfalms, 84, 122, 132.

Firft leflbn, i Kings 8. from v. 22. inch to v. 62.

Second leflbn, Hcbr. 10. from v. 19. incl. to v. 26*

After the colleSl for the day, the minijler who reads the fer^
vicefiops till the bifyop hath faid the following prayer : 4

O mofl: blcflbd faviour, who by thy gracious prcfcnc^^
at the feafl of dedication, didft approve and honour fuclk^
religious fervices, as this which we are now performing'
unto thee, be prefent at this time with us alfo by thy
holy fpirit ; and bccaufc holinefs bccometh thine houfe
for ever, fan(fLify us we pray thee, that we may be li-
ving temples, holy and acceptable unto thee ; and fo
dwell in our hearts by faith, and poflcfs our fouls by thy

grace.

CJtttc!), 303

ffrace, that nothing which deiileth may enter into us ; but
that being cleanfed from all carnal and corrupt afFedlions,
we may ever be devoutly given to ferve thee in all good
works, who art our faviour, lord, and god, blefFcd for
evermore. Jinen,

Then the minijler proceeds In the fervlce of the day^ to the
end of the general thankfgiving. After ivhich, the hifiop fays
the following prayer [fit be not one of the 50 new churches].

Bleffed be thy name, O lord, that it hath pleafed thee
to put it into the heart of thy * fervant N. to ere6l this # Or, Servants,
houfe to thy honour and worfhip. Blefs, O lord, f him,^ Throughout
his family, and fubftance, and accept the work of his tliis prayer, for
hands ; remember him concerning this; wipe not out this^''"*^"'*^'^^'**
kindnefs that he hath fhewed for the houfe of his god 2Ln^ the^r, jhel her/
the offices thereof; and grant that all, who ihall enjoy ^^*^^> as the oc-
the benefit of this pious work, may fhew forth their thank- "^^'°^" ^*^^ '*"'
fulnefs by making a right ufe of it, to the glory of thy
bleffed name, thro' Jefus Chrill our lord. Jmen,

[If the church that is to be confecrated^ he o?ie of the 50 new
churches y which are ordered to he built by' the late a£ls of par-
liament^ the biJJjop fays ;

Bleffed be thy name, O lord god, that it hath pleafed
thee by thy good fpirit to difpoie our gracious fovereign
and the efhates of this realm, to fupply the fpiritual wants
of thy people, by appointing this and many other churches
to be ere£ted and endowed for thy worfhip and fervice ;
multiply thy bleffings upon them, for their pious regard
to thy honour, and to the good of fouls ; remember them
concerning this, and wipe not out the kindnefs they have
(hewed to thy church, and to the offices thereof; and
grant that our gracious* king may fee and long enjoy the '
fruits of his godly zeal, in the edification of the members
of our church, and in the reduvSlion of thofe, in the fpirit
of meeknefs, who diffent from it ; that we may all live
together in the unity of the fpirit, and in the bond dt
peace, thro' Jefus Chrift our lord. Jmen,}

Then the minifler who officiates^ is to go on with the prayer
cf St Chryfoftom, and the Grace of our Lord Jefus ChrilL

Then apfalm is to he fung^ viz, 26. 6, 7, 8. withGXon'X
Patri.

Communion fervice.

The hijhop^flandlng on the north fide cf the communion iahle^
as before y reads the communion fervice.

304 €i)nni).

After the colleSi for the king^ he fays the follotving prayer,
O moft glorious lord god, we acknowledge that we are
not worthy to offer unto thee any thing belonging to us ;
yet we befeech thee, in thy great goodnefs, gracioufly to
accept the dedication of this place to thy fervice, and to
profper this our undertaking : Receive the prayers and
interceflions of us, and all others thy fervants, who either
now or hereafter entring into this houfe, fhall call upon
thee ; and give both them and us grace to prepare our
hearts to ferve thee with reverence and godly fear : Affe6t
us with an awful apprehenlion of thy divine majefty, and
a deep fenfe of our own unworthinels ; that fo, approach-
ing thy fan6luary with lowlinefs and devotion, and coming
before thee with clean thoughts and pure hearts, with
bodies undefiled, and minds fandiified, we may always
perform a fervice acceptable to thee, thro' Jefus Chrift
our Lord. Amen.

^Tloe two chaplains are to read^ one the epijlle^ and the other »
the gofpeL

The Epiftle, 2 Cor. 6. 14 incl. to v. 17.

The Gofpel, Joh, 2. v. 13. to v. 18. incl, »

Then the hijhop reads the Nkene creed. After which, a.
pfalm is fungi viz, Pf. 100. ^

The Sermon. >

The fermon being ended^ and all who do not receive the holy*'
cojnmunion returned^ and the doors jhut j the hijloop proceeds in *
the communion fervice \ and he and the clergy having made '
their oblations^ the churchwardens colle£l the offerings of the ^■
rejl of the congregation, *

After the cornmunion^ and immediately before the fnal blef-^
fing^ the bijhop fays the following prayer,

BlcfFed be thy name, O lord god, for that it pleafcth
thee to have thy habitation among the fons of men, mid
to dwell in the midfl of the afTembly of the faints upon
earth ; blefs, we befeech thee, the religious performance^
of this day : And grant that in this place, now fet apart
to thy fervice, thy holy nairic may be worfhippcd in truth
and purity to all generations, thro' Jefus Chrift our lorcl»
Amen.

The peace of god, which paffcth all undcrftanding,
keep your hearts and minds in the knowledge and love of
god, and of his fon Jefus Chrift our lord : And the blef-
iing of god almighty, the father, the fon, and the holy

gho/1:,

Cijttrc!^. 305

ghoft, be amongft you, and remain with you always.
Amen,

, Confecration of a churchyard, together with the
church.

When the fervice in the church h finijhed-y the hljhop^ ^^^^ih
and people proceed to the churchyard. And the hljhop^jianding
in the place prepared for the performance of the office there^
the aSi or fentence of confecration is read by the chancellory and
figned by the hijhop^ and ordered to be regiflred.

After which ^ the bifljop fays the following prayer.

O god, who haft taught us in thy holy word, that there
is a difference between the fpirit of a beaft that goeth
downwards to the earth, and the fpirit of a man which
afcendeth up to god who gave it ; and likewife by the
example of thy holy fervants, in all ages, haft taught us
:o.aiIign peculiar places, where the bodies of thy faints
nay reft in peace, and be preferved from all indignities,
vhilft their fouls are fafely kept in the hands of their
aithful redeemer: Accept, we befeech thee, this chari-
:able work of ours, in feparating this portion of ground
:o that good purpofe ; and give us grace, that by the
Tequent inftances of mortality which we behold, we may
earn and ferioufly confider, how frail and uncertain our
Condition here on earth is, and fo number our days, as
to apply our hearts unto wifdom. That in the midft of
ife thinking upon death, and daily pseparing our felves
"or the judgment that is to follow, we may have our part
n the refurre<5lion to eternal life, with him who died for
Dur fins, and rofe again for our juftification, and now
liveth and reigneth with thee and the holy ghoft, one
god world without end. Amen,

The grace of our lord Jefus Chrift, and the love of
god, and the fellowfhip of the holy ghoft, be with us all
evermore. Amen*

Confecration of a churchyard fingly.

The ordinary fervice for the day is to be read at the churchy
txcept where it is otherwife ordered,.
Pfalms 39, 90.

Vol. I, X Firft

3o6 Cl)iircl^»

Firft leflbn, Gen. 23.

Second lefTon, Joh. 5. v. 21. incl. io v, 30. or I
Thefl. 4. 13 to the end.

IVhen the fervtce at the church is over ; the hijhop^ cler^^
and par'ijhioners repair to the ground which is to be confe-
crated: And the bifiop^ Jlanding in the place prepared for the
performance of the office^ fays :

The glorious majefty of the lord our god be upon us ;
profper thou the work of our hands upon us, O profper
thou our handy work.

Then the injirument of donation is prefented to the hijhop,

Next^ the a£l or fentence of confecration is read by thi
chahcellory and ftgned by the bijhop^ and ordered to be re',
gifired,

nis done, the bijhop reads the prayer that is before direSfed
to be ufsd in a churchyard which is confecrated together with
the church,

Then are fung twoflaves of the y:^th pfcdm, viz, v, 5> 6,

After which the bijhop lets them depart with the blejftng:
The peace of god which pafleth all underftanding, keep
your hearts and minds in the knowledge and love of god,
and of his Ton Jefus Chrift our lord : and th6 blefling of
god almighty, the father, the fon, and the holy ghoft, be
amongft you, and remain with you always. Amen,

Other churches ^* ^^ ^^ confecration of a new church, provlfion Is to\
not to be preju- bc made, that no damage accrue, in point of rights or
diced thereby, j-eyenues, to any other church. And in the forementiom
letter of Innocent the third to king John, one exprefs
condition of building new churches is, that by the ne
building the right of ancient churches be not prejudiced
Cibf 189.
Procuration. 7. A reafonable procuration is due, to every bifho

who confecrates a church, from the perfon or perfons,
praying fuch confecration ; not for the confecration, butji
for the neceflTary refrcfhment of the bifliop and his fer-^
vants. For whereas ordinations, inflitutions, and other
adts of the like nature, arc performed by the bifhop with-
in his own walls ; this draws him fomctimes to a great
diftance from his palace, where proper accommodations
cannot be procured : and therefore, as in his vifitations
fo alfo in his confccrations of churches, the law hath pro-
vided a reafonable procuration. At lirft, the laws of th(^
church forbad the demanding or taking any thing, bul
what the founder voluntarily offered (and fomc even ./or-

CDtmfj zoj

bad that;) but afterwards the prohibition was limited,
faving the honeji and lawful cujioms of tlye ecclejiafikks^ and
(as it is in the foregoing conftitution of Othobon) except
the due procuration : the meafure and proportion of which,
muft be determined by the ufage of every diocefe. In
archbifhop Warham's time, the fee of Bath and Wells
being vacant, there is returned among the revenues of the
vacancy, for the confecration of three churches, lol,
that is, 3I. 6 s. 8d. each. Gibf 190.

The church of Elfefeld in the diocefe of Lincoln was
i confecrated in the year 1273 ; for which was paid apro-

I curation of two marks. Ken, Par, Ant. 515.

8. A church once confecrated, niay not be confecrated Reconfecratlon.
again. To which general rule of the canon law, one
exception was, unlefs they he polluted by the Jheddlng of bloody
and in that cafe, the canon fuppofes a reconfecration ;
tho' the common method in England was, a reconciliation
„ only, as appeareth by many inftances in our ecclefiaftical

II records. But in point of ruins or decay, the only excep-
I tion to the general rule, laid down in the canon, is, un-
lefs they be burnt (that is, faith the ^ok^ for the greater
tart thereof and not otherwife.) And a decretal epiftle of
[nnocent the third, where the roof was confumed, is,
that fince the walls were intire, and the communion table not
hurty neither the one nor the other ought to be reconfe-
crated. Thus, a chapel in the fuburbs of Hereford,
which belonged to the priory of St John of Jerufalem,
had been frorn the time of the difToIution of monafteries, '
applied to fecular ufes and profaned, by making the fame
a ftall for cattle, and a place for laying up their hay and
other provender ; yet becaufe the walls and roof were

' never demolifhed, a recoffciliation was judged fufficient. In
like manner, when another chapel had been long difufed,-
and was repaired^ and made fit for divine fervice, the
tenor of the reconciliation was. The fame chapel from all
canonical tmpedime?it, and from every profanation (if any
there were) contracted and incurred^ as much as in us lieth^
and fo far as lawfully we may^ by the authority aforejaid we
do ex empty relax ^ and reconcile the fame, Gibf. 189.

But on the contrary, when the church of SouthmalUng
had not only been polluted in m.anner as aforefaid,' but
was alfo new builiy and then ufed for divine ofnces with-
out new confecration ; archbifhop Abbot intercli£led the
minifter, churchwardens and pari{hioners from the en-
trance of the church, until the faid church and the church-
yard thereof fhould be again confecrated. Gibf. 190.

X 2 When

3o8 CljtttcH.

dication.

When a churchyard hath been inlarged, there hath
been a new confecration of the additional part. Gibf
190.
Feaftofthcde- 9. In a form of confecrating churches, which we meet
with in a canon of the fynod held at Celchyth under
Wulfred archbifhop of Canterbury in the year 816, it is
ordained, that when a church is built, it fhall be confe-
crated by the proper diocefan, who ihall take care that
the faint, to whom it is dedicated, be pi(5lured on the
wall, or on a tablet, or on the altar. And Sir William
Dugdale had an old tranfcript of a decree made by Robert
de Winchelfea archbifhop of Canterbury, and confirmed
by Walter Reynolds his immediate fuccefibr, whereby
the pariihioners thro* that whole province were coftimand-
ed to provide, that the. image of that faint to whofe me-
mory the church was dedicated, fhould be carefully pre-
ferved in the chancel of every pariih church. And Dr
Kennet fays, he remembers in the chancel of the church
of Poftling in Kent, on the fide of the north wall, about
five foot from the ground, there was a fmall fquare tablet
of brafs, with a latin infcription in old charadlers, tel-
ling the time when the church was dedicated to the vir-
gin Mary.

The wake or cuftomary feflival for the dedication of
churches, doth fignify the fame as vigil or eve. The
reafon of the name is beft given from an old manufcript
legend of St John Baptiil : *' Ye fhall underfland and
** know, how the evens were firft founded in old times,
** In the beginning of holy church it was fo, that the'
« people came to the church with candles burning, and
*' would wake and come with lights towards night t
*' the church in their devotions : and after, they fell t
*' lechery, and fongs, and dances, harping and piping,'
*' and alfo to gluttony and fm ; and fo turned the holi->
*' ncfs to curfednefs. Wherefore the holy fathers or-^j
*' daincd the people to leave that waking, and to faft tbcJf'
*' even. But it is ftill called vigil^ that is, waking
*^ englifh ; and it is alfo called the evcn^ for at even th
*' were wont to come to church."

It was in imitation of the primitive ayaxoci^ or lov
feafts, that fuch ptiblick aflcmblics, accompanied wi
friendly entertainments, were firfl held upon each retufj
of the day of confecration, tho' not in the body of church'
es, yet in the churchyards, and moft nearly adjoining
places.

This

CfJtttcD. 309

This pra£lice was eftablifhed in England by pope Gre-
gory the great ; who in an epiftle to Melitus the abbat,
gives injunctions to he delivered to Auftin the monk, a
cniihonary to England ; amongft which, he doth allow
that the folemn anniverfary of dedication fhould be cele-
brated in thofe churches which were made out of heathen
temples, with religious feafts kept in fheds or arbories,
made up with branches and boughs of trees round the faid
church.

But as the love feafts held in the place of worftjip were
foon liable to fuch great diforders, that they were not
only condemned at Corinth by St Paul, but prohibited to
|).e kept in the houfe of god by the 20th canon of the
jCpuncil of Laodicea, and the 30th of the third council of
.Carthage ; fo from a fenfe of the fame inconveniences,
jthis cuftom did not long continue of feafting in the
icjiurche? or churchyards ; but, ftrangers and inhabitants
paid the devotion of prayers and offerings in the church,
and then adjourned their eating and drinking to the more
proper place of publick and private houfes.

The inftitution of thefe church encaenia or wakes, was
without queftion on good and laudable defigns : at firft,
thankfully to commemorate the bounty and munificence
of thofe who had founded and endowed the church ; next,
to incite others to the like generous a6ls of piety ; and
chiefly, to maintain a chriftian fpirit of unity and charity,
by fuch fociable and friendly meetings. And therefore
care was taken to keep up the laudable cuftom. The
laws of Edward the confefTor give peace and protection in
all parifhes during the folemnity of th« day of dedication,
and the fame privilege to all that were going to or return-
ing from fuch folemnity. In a council held at Oxford in
the year 1222, it was Ordained, that among other fefti-
vals fhpuld be obferved the day of dedication of every
^church within the proper parifh. And in a fynod under
archbifhop Iflip (who was promoted to the fee of Canter-
bury in the year 1349 J the dedication feaft is mentioned
IiW^ith a particular refpe<3:.
t This folemnity was at iirft celebrated on the very day
of dedication, as it annually returned. But the bifhops
.did fometimes give authority for tranfpofmg the obferva-
tion to fome other day, and efpecially to funday, where-
on the people could beft attend the devotions and rites
intended in this ceremony. Thus the parifhioners of
Bifhops Wilton in Yorkfhire, complaining to arch-
biftiop Kemp, that their wake day on Sep. 15. was in-
X 3 convenient

31® C!)tttc!>

convenient to be kept on a week day, becaufe it fell iri
the middle of their harveft ; he therefore transferred it to
the funday following, by an inftrument dated at Bifhops
Thorp, Sep. 22. 1441. So alfo at Tadcafter in York-
fhire, the church's feftival being on the 28th of Auguft ; ,'
it was in the year 1314 afligned to be kept on the funday
next enfuing the feaft of the decollation of St John Bap-
till. Nay, at laft, this convenience of funday above the
week days, was the reafon of attempting an univerfal
change. For among the injunctions of king Hen. 8. in
the year 1536, it was ordered, that the dedication of
churches fbould in all places be celebrated on the firft fun-
day of the month of October for ever. Yet this order
was not inforced, or not obeyed ; but however moft of
thofe jubilees are now celebrated near the time of Michael-
mafs, when a vacation from the labours of harveft and
the plough, doth afford the beft opportunity for vifits and
fports. -J

This tranfpofing of the day hath left it more difficult
to know the faint to whofe protection the church was
committed. There be only thefe grounds of fafe con-
jecture. Such wakes as are obferved on the firft cir
fecond funday after Michaelmafs day, in thefe we may
doubt a tranflation of time by virtue of the faid injunction
of king Hen, 8. or by a prevailing cuftom of pollponing
fuch folemnity to the end of harveft : and in fuch cafes
the faint may be loft, unlefs fome other way preferved.
But as to thofe wakes which are precedent to Michael-^
mafs, or diftant from that time ; thefe we may believe
have continued in their primitive relation to their proper
faint, and no farther removed than to the immediate fun- ,
day following. For wherever thefe funday wakes are
guided by a foregoing feftival, we may be juftly fatisfied>
the church was dedicated to the faint of that day.

It is a rational and juft opinion of Sir Henry Spelman,
that fairs were firft occafioned by the rcfort of people to
that place, for folemnizing fome feftival, and efpeciaUy
the feaft of the church's dedication. And hence he thinks
It eafy to conjcCture to what faint the church had bpen
commended, by the fair day. Indeed pope Gregory the
great, in one of his homilies, alludes to this as a popular
and familiar cuftom; and therein plainly intimates, that
a fair arifes from a conflux of people on the wake or de-
dication day. In moft of the towiis and pariflies in Eng-
land (except where the privilege of new fairs hath been
in later times obtained) the old ftationary fairs, wj^ether

Cimrcj^. 311

by cuftom or by ancient charter, depend upon the faint
of the church. Thus the primitive fair in Oxford was
on the day of St Fridefwide, becaufe it was the dedication
•day of the chief conventual church. Thus the tranflatiori
of Becket's body was on the 7th of July, and his paflion
on the 29th of September ; which days being foon cele-
brated at Canterbury for feftivals and days of dedication
of altars and chapels to that martyr, it occafioned two fairs
in that city annually on thofe days. On the faid yth of
July, there is a fair at Bromhill near Brandon-ferry in
Norfolk, and another at Weft-acre about four miles diftant
from Swaf ham, both called Becket's fair ; and in both
places there are old ruinous chapels, which were dedi-
cated to that fuppofed faint.

The charters for fairs, granted by the kings of Eng-
land, were often a confirmation rather than a new grant ;
and were chiefly obtained to confer a property, on fome
particular perfon, of the profits of the fair ; which were
before in common, and therefore fubjedl: to great difputes.
So king Richard gave a charter for a fair to be holden
eight days in Peterborough, beginning on the feaft of St
Peter ; on which day a fair had been kept by immemo-
rial cuftom, becaufe the church had been dedicated to
that faint.

To confirm the original of fairs from the dedication of
churches, it is obfervable, that on this account fairs
were generally kept in churchyards, and even in the
churches ; till the indecency and fcandal were fo great,
jjs to want a reformation. In the year 1230, in the 14th
of Hen. 3. among the inquiries to be made at a vifitation
by all archdeacons within the diocefe of Lincoln, the
25th and 26th were to difcover and regulate this abufe.
Soon after this, king Hen. 3. by exprefs mandate forbad
the keeping of Northampton fair In the church or church-
yard of All-faints in that town. Whereupon Robert
Gtofthead, the good bifliop of Lincoln, fent pofitive
inftrutSlions thro' his whole diocefe, prohibiting all fairs
to be kept in fuch facred places, purfuant to the king's
example, who had made the like reformation at North-
ampton. This duty he recommended in letters to his
feveral archdeacons, and then fent a copy of the inftruc-
tions to all redors and vicars of churches within his dio-
cefe. It was likewife to this relation of fairs to the wakes
or days of dedication, that a cuftom of old time crept in,
of keeping fome fairs upon the very fundays, becaufe the
dc4ic4UPI) feafts fell on thofc days j till this abufc, like
X 4 tho

the other, was thoyght jit tobe reftraihea : as for inftanJf*,
the fairs and markets kept on fundays at WalingfornJ^
Bercamfteadj and Brackley were altered to week days, by
Special writs from the king, in the 2d year oT king Henry
the third. Thus were the anniverfaries of a church'-s
dedication celebrated in populous tov/ns with an accuftom*-
"ed fair ; arid in the moft private parishes, with feafting
^nd a great concourfe of people. And as there have been
many gifts and legacies to univerfities and colleges, tor
the commemorating of founders and benefactors days ; fo
were fome donations made to churches purely for this
pious ufe, of more folemnly celebrating the wake ordedi-^
cation feaft. Thus Walter de St Edmund, abbat of
Burg, did about the year 1240 give the fum of 4oih -^
year, for miaking more plentiful provifion in that convent|
on the day of the churches confecration.

This laudable cuftom of wakes prevailed for many age&,
till the puritans began to exclaim againft it as a remnafit
pf popery. And by degrees the humour grew fo popular,
that at the fummer afllzes held at Exeter in the y'etiv
1627, the lord chief baron Walter and baron Denhaiti
made an order fgr fuppreffion of all wakes. And a like
order was made by judge Richardfon for the county of
Somerfet, in the year 1631, But on bjfhop Laud's com*
plaint of this innovating humour, the king commanded
the laft order to be reverfed ; which judge Richardfoh
refufmg to do, an account was required from the bifhop
of Bath and Wells, how the faid fealt days, church aks,
wakes, and revels were for the moft part celebrated and
cbfervftd in his diocefe. On the receipt of thefe inftruc<r
tions, the bifhop fent for and advifcd with feventy two
of the moft orthodox and able of his clergy ; who certified
under their hands, that on thefe feaft days (which gene-
rally fell on fundays) the fervice of god was more folemri*
ly performed, and the phurch much better frequented
{)oth in the forenoon and afternoon, than on any other
funday in the year ; that the people very much defired
the continuance of theqi ; that the minifters did in moft
places do the like, for thefe reafons, viz. for preferving
the memorial of the dedication of their fevcral churches, !
for civilizing the people, for compofing difi'ercnces by the
mediation and meeting of friends, for incrcafe of love
and unity by thefe feafts of charity, and for relief -and
fcomfort of the poor. On the return of this certificate,
judge Richardfon was again cited to the council table,
and peremptorily commanded |:o reverfe his former ontfer.

€\^nm. 313

After >yflich it w&s thought fit to reinforce the declaration
of king James, when perhaps this was the only good
^.#eafon afligned for that unjiecefTary and unhappy licence
offports: '' We do ratify and publish this our bielTcd
*' father's decree, the rather becaufe of latS in fome
^* counties of our kingdom we find, that under pretence
*' of taking away abufes, there hath been a general for-
*' bidding not only of ordinary meetings, but of the
*' fcafts of the dedication of churches, commonly called
** wakes." However, by fuch a popular prejudice sgainft
wakes, and by the intermiflion of them in the confufions
$hat followed, they are now difcontinued in many counties,
efpeciaily in the eaft and fome weftern parts of England,
but are commonly obferved in the north, and in the mid-
land counties. Ken, Par, Ant, 609 .... 614.

III. ChanceL

.Chancel, cancellus^ feemeth properly to be fo called a
cuncellis^ from the lattice-work partition betwixt the quire
iflnd the body of the church, fo framed as to feparate the
•lOne from the other, but not to intercept the fight.

By the rubrick before the common prayer, it is ordain-
ed, that ihs chancels Jhall remain as they have dane in times
paji.

That is to fay, diftinguifhed from the body of the
church in manner aforefaid ; againft which diftindlicm
Buccr (at the. time of the reformation) inveighed vehe-
mently, as tending only to magnify the priefthood : but
the* the king and parliament yielded fo far, as to allovir
the daily fervice to be read in the body of the church, if
the ordinary thought fit 3 yet they would not fufFer the
phancel it felf to be taken away or altered, Gibf* 199.

IV. Ik.

I . lie is faid to proceed from the French- word aile (ala)y Derivation of the
a wine ; for that the Norman churches were built in the word,
form of a crofs, with a nave and. two wings.

The word nave, -or naf, is a Saxon word, and fignificth
properly the middle of a wheel, being that part in which
the fpokes are fixed ; and is from thence transferred to
fignify the body or middle part of the church : In like
manner, the German «<7^, by an cafy tranfmutation ofthe
letters ^, y, and % frequent in all kindred languages,
fignifieth the vertical part of a hill. With which, the
Yi9jd n(fvel feemeth alfp to h^vefoAe cognation.

2. An

314 CDtttC!)*

fl« a private J. An il^ In 2. church, which hath time out^of mind

property, belonged to a particular houfe, and been maintained and

repaired by the owner of that houfe, is part of his frank
tenement ; and the ordinary cannot difpofe of it, or in-
termeddle in it. And the reafon is, becaufe the law in
that cafe prefumes, that the ile was creeled by his anccf-
tors, or thofe whofe eftate he hath, and is thereupon par-
ticularly appropriated to their houfe. But otherwife it ij,
if he hath only ufed to fit and bury in the ile, and not re-
paired it; for the conftant fitting and burying, without
reparation, doth not gain any peculiar property therein ;
but the ile being repaired at the common charge of the >
parifh, the common right of the ordinary takes place, and
he may from time to time appoint whom he pleafeth to lit
there. Gibf 197.

And in the cafe of Ccrven and Pyniy M, 10 y. it was
refolved, that albeit the freehold of the church be in the
parfon, yet if a lord of a manor, or any other hath an
houfe within the town or parifh, and he and all thofe
whofe eftate he hath in the manfion houfe of the manor or
other houfe, hath had a feat in an ile of the church for
him and his family only, and have repaired it at his pro-
per charges ; it fhali be intended, that fome of his ancef-
tors, or of the parties, whofe eftate he hath, did build and
credl that ile for him and his family only : and therefore
if the ordinary endeavour to remove him, or place any
other there, he may have a prohibition. 3 Inji, 202.

And in the cafe of Frances and Ley^ H, 12 jf. In the
ftar chamber : It was refolved by the court, that if an in-
habitant and his anceftors only, have ufed time out of
mind to repair an ile in a church, and to fit ther€ with
his family to hear divine fervice, and to bury there ; this
makes the ile proper and peculiar to his houfe, and he
cannot be difplaced nor interrupted by the parfon, church-
warden, or ordinary himfelf : but the conftant fitting and
burying there, without ufmg to repair it, doth not gain
any peculiar property, or preeminence therein. And if
the ile hath been ufed to be repaired at the charge of all
the parifli in common, the ordinary may then from time
to time appoint whom he pleafeth to fit there, notwith-
ftanding any ufage to the contrary. Cro, Ja. 366.
By prcfcrlptlon. 3. And the reafon of any perfon's propriety in an ile,
is from the prefcription to repair and ufe it alone ; be-
caul'c it is from thence prcfumed, that the ile was ere6b-
ed by him whofe eftate he hath, with the aflTent of the
parfon patron and ordinary, to the intent to have it ovi\f
to himfdf. 12 Cq, 105, .. "

Aa4

CDtttcl). 315

And therefore where jlny perfon hath good title to
fuch lie ; if the ordinary doth place another perfon there-
in with the proprietor, the proprietor may have Vis ac-
tion upon the cafe againft the ordinary ; and if he be
Jinplcaded in the fpiritual court for the fame, a prohibi-
tion will lie : or if any private perfon doth fit therein, or
keep out him that hath the right, or doth bury his dead
there without his confent ; an a61:ion upon the cafe doth
well lie for the proprietor. JVaif, c 39.

4. But no fuch title can be good, either upon prefcrip- To go with the
tion, or upon any new grant by a faculty from the ordi- "°""^*
nary, to a man and his heirs ; but the ile muft always be
fiippofed to be held in refpeft of the houfe, and will al-
ways go with the houfe, to him that inhabits it, 12 Co,
106. 2 Keb. 92. 2 Bulft, 150. I Sid, 88.

V. Church yard.

I. Ccemiterlum is derived from ictnyLotio, dormio y and Original of
therefore the church yard is as it were a dormitory, be- ^^ufc^yar^
<:aufe the dead bodies are faid there to fleep until the re-
furredlion. 2 Inji. 489.

As to the original of burying places, many Writers
have obferved, that at the firft erection of churches, no
part of the adjacent ground was allotted for interment of
the dead ; but fome place for this purpofe was appointed
at a further diftance. Efpecially in cities and populous
towns ; where agreeably to the old roman law of the
twelve tables, the place of inhumation was without the
''walls, iirft indefinitely by the way fide, then in fome pe-
culiar inclofure ailigned to that ufe. Therefore the ro-
man pontifical, among^ft other inventions, is in thisrefpeft
t:onvi(3:ed of error, that it makes pope Marcellus under
the tyrant Maxentius appoint twenty five churches in
Rome to bury martyrs in, when at that time laws and
cuftoms did forbid all burial within the city. Hence the
Auguftine monaftery was built without the walls of Can-
terbury, (as Ethelbert and Auguftine in both their char-
ters intimate) that it might be a dormitory to them
and their fucceflbrs the kings and archbifhops for ever.
This practice of remoter burials continued to the age of
Gregory the great, when the monks and priefts begin-
ning to offer for fouls departed, procured leave for their
greater eafe and profit, that a liberty of fcpulture might
be in churches or in places adjoining to them. Thi:i mer-
cenary reafon feems to be acknowledged by pope Gregory

himfelf,^

1 6 CiJittcH.

himfelf, whilft he allows that when the parties dcccafing
are net burdened with heavy fins, it may then be a bene^'
fit to them to be buried in churches j becaufe their friends
lind relations, as often as they come to thefe facred places,'
feeing their graves, may remember them and pray to god
for them. After this, Cuthbert archbifhop of Canter-
bury brought over from Rome this practice into England,
iiibout the year 750 ; from which time they date the ori-
ginal of churchyards in this ifland. This was a fufficient
argument of the learned Sir Henry Spelman to prove an
infcription at Glaftenbury to be a later forgery ; becaufe it
pretends, dominus ecclefiam ipfam cum ccemiterio dedicarat^
whereas there was no ccemitery in England till above 700
years after the date of that fidlion. The practice of bu-
rying within the churches, did indeed (tho' more rarely)
obtain before the ufe of churchyards ; but was by autho-
rity reftrained, when churchyards were frequent, and
-appropriated to that ufe. For among thofe canons which
feem to have been made before Edward the confeflbr, the
ninth bears this title De non fepellendo in eccleftis^ and be-
^ns with a confefTion that fuch a cuftom had prevailed,
but muft be now reformed, and no fuch liberty allowed
ior the future, unlefs the perfon be a prieft or fome holy
man, who by the merits of his paft life might deferve fuc^i
a peculiar favour. However, at firft it was the nave or
jor body of the church, that was permitted to be a repo-
iitory of the dead, and chiefly under arches by the fide
of the walls. Lanfrank archbifhop of Canterbury feems
XO have been the firft, who brought up the pradice of
-vaults in chancels, and under the very altars, when he
had rebuilt the church of Canterbury, about the year
1075. Ken. Par, Ant, 592, 593.

By the 15 R. 2. c. 5. Whereas it is contained in the Jia*
iute de religiofis (7 Ed. i. ft. 2.), that no religious^ nor
ether whatfoever he he, do buy or fell, or under colour of gift
or iei'm^ or any other manner of title whatfoever, receive of
any man, or in any manner hy gift or engine caufe to he apprO"
priated utito hi?n any lands or tene?7ients, upon pain of forfei"
ture of the fame, whereby the faid lands and tenements in an^
manner might come to mortmain \ and if any, religious or any
,cther, do again fi the faid flatute by art or engine in any man-'
ner, that it be lawful to the king and to other lords, upon the
faid lands and teneinents to enter, as in the faid Jlatutc doth
more fully appear : and noiu of late by fubtil imagination, and
hy art and engi?je, fame religious perfons, parfons, vicars, and
$thcr fpiritual perfons have cntred in divers lands and tenc*

ments^

Cljtttti)* 317

mentSy which be adjoining to their churches , and of thi feme,
hy fufferance and ajfent of the tenants^ have made churchy ardSy
and by bulls of the bi/hop of Rome have dedicated and hallow-^
ed the fame y and in them do make continually parochial burying
without licence of the king and of the chief lords ; therefore it
is declared in this parliament^ that it is manifejlly within the
compafs ofthefaidjlatute.

2. By a conftitution of archblfhop Winchelfea ; the pa- Fence,
rifhioners fhall repair the fence of the churchyard at their
own charge. Lind, 253.

And lord Coke fays, that the parifhioners ought to re-
pair the inclofure of the churchyards, becaufe the bodies
of the more common fort are buried there, and for the
prefervation of the burials of thofe that were or or fhould
have been, while they lived, the temples of the holy
ghoft. 2 Inji, 489.

And if the churchyard be not decently inclofed, the
church (which is god's houfe) cannot decently be- kept j
and therefore this the parifhioners ought to do, by cuftom
known and approved : and the conufance thereof belong-
eth to the ecclefiaftical court. 2 InJi, 489.

But neverthelefs, if the owners of lands adjoining to
the churchyard, have ufed time out of mind to repair fo
much of the fence thereof, as adjoineth to their ground ;
fuch cuftom is a good cuftom , and the churchwardens
have an a£lion againft them at the common law for the
fame. 2 RoWs Abr, 287. Gibf 194.

By Can* 85. The churchwardens or queflmen fhall
take care, that the churchyards be well and fufficiently
repaired, fenced, and maintained with walls, rails, or
pales, as have been in each place accuflomed, at their
charges unto whom by law the fame appertaineth.

By the flatute of circumfpeSfe agatis^ 13 Ed. i. fl. 4.
intitled certain cafes wherein the king's prohibition doth
not lie : If prelates do punijh for leaving the churchyard un-
tlofedy the fpiritual judge Jhall have power to take knowledge,
notwithjianding the king's prohibition,

Neverthelefs, if the churchwardens, fue a perfon in
the court chriftian, fuppofmg by their libel, that he and
all they whofe eftate he hath in certain land next adjoin-
ing to the churchyard, have ufed time out of mind to
repair all the fences of the churchyard which are next
adjoining to the faid land ; a prohibition will lie : for
this ought to be tried at the common law ; inafmuch
as this is to charge a temporal inheritance. 2 RoWs
Abr. 287.

3. Strat-

31 8 CDitrtgt

Trees. 2' Stratford. Seeing it is prohibited by the laws both ei*

defiajlical and fecular^ for laymen to have power to difpofe of.
things eccleftajlical -J in order therefore that the fcandal of fuch.
ftfurpation may be utterly abolijhed^ whereby certain parijhioners
if the parijhes within our province^ not knowing the limits of
their own power ^ or rather not regarding the fame ^ have cut
downy or rooted up the t?'ees^ or mowed the grafs growing in
the churchyards of the churches or chapels of our faid province^
againfl the will of the re£iors or vicars of fuch churches or
chapels, or others deputed by them for the cujlody and care
thereof and have facrilegioufy applied the fame to their own ufcy
er to the ufe of the churches, or of other perfons, at their will
and pleafure ; from whence peril of fouls, contentions, and
grievous fcandals do arife betwixt the minijlers of fuch churches
and their parijhioners : we do declare by the authority of the
trefent council, that perfons guilty of fuch contempt Pall incur
the fentence of the greater excommunication, until they Jhall make
fuffcient amends and fatisfa£lion, Lind. 267.

Againfl the will of the reSfors or vicars'] This is, in
churches where there is a re6lor only, or a vicar only.
But if in the fame church there be both re6i:or and vicar
it may be doubted (fays Lindwood) to vi^hether of them
the trees or grafs fhall belong. But I fuppofe (fays he)
they fhall belong to the re£lor ; unlefs in the endow-
ment of the vicarage they fhall be otherwife aifigned.
Lindw, 267.

In Bellamy s cafe, M. i^J- This point, unto which
of the two the trees do belong, was confidered, but not
determined ; where the vicar fued the parfon impropriate
in the fpiritual cpurt, for cutting them down ; and the
fuit being for damages, and an adlion of trefpafs lying
at common law, a prohibition was granted, and after-
wards upon the fame grounds a confultation denied :
but what became of the main point, that is, to whom
the trees of right belonged, appears not : only RoUe fecms
to make the right turn upon this, that they did belong
to him who is bound to repair ; which determination
agrees well with what i^ faid in the ftatute here follow-
ing, namely, that the parfon fhall not cut them down,
but when the chancel wants reparation. 2 RolPs Abr^
337. Gibf 207^ 208.

Or to the ufe of the churches'] That is, to the ufe of th':
fabrick of the church; which it is not lawful to do,
without the confcnt of the re61:or or vicar to whoi 1
they belong. And it is very reafonable, that n'^ithc:

C!)tttcl): 319

Tcftot nor vkar do fell fuch trees but for evident necef-
f)ty of the reparation of the manfe of the redtory, or of
the chancel. But if the nave of the church want re-
pairing, the re6lor, or vicar will do well (fays Lindwood)
not to be difficult in granting leave to cut down one or
two for that ufe. Lindw, 267.

By the 35 Ed. i. ft. 2. intitled, Statutum, ne reilor
profternat arbores in coemiterio : Becaufe we do underjiandy
that contrQverfies do ofttimes grow between parfons of churches
und their parijhioners^ touching trees growing in the church-
yard, both of them pretending that they do belong unto them^
felves ; we have thought it good, rather to decide this contro-
•verfy by writing than byjiatute, Forafmuch as a churchyard
jthat is dedicated is the foil of a church, and wha^oever is planted
belongeth to the foil\ it mufi needs follow, that thofe trees
which be growing in the churchyard are to be reckoned amongjl
the goods of the church, the which laymen have no authority to
difpofe ; but, as the holy fcripture doth teftify, the charge of
them is committed only to priefis to be difpofed of: And yet fee-
ing thofe trees be often planted to defend the force of the
wind from hurting the church ; we do prohibit the parfons of
the church, that they do not prefume to fell them down unad^
vifedly, but when the chancel of the church doth want necef-
fary reparations: neither Jhall they be converted to any other
ufe, except the body of the church doth need like repair ; in
which the parfons of their charity Jhall do well to relieve
the parijhioners, with befiowing upon them the fame trees ;
which we will not command to be done, but we will commend
it when it is done.

Rather to decide this controverfy by writing than by fiatute'\
And therefore lord Coke calls this law a treatife only ;
and adds, that it is*but a declaration of the common
law. Gibf 208.

But when the chancel of the church doth want neceffary
reparations'] If it appear that the perfon whofe right they
are, intends to cut them down for other pujpofes ; a
prohibition will be granted, to hinder wafte : and fo
iikewife to hinder the cutting down of fuch trees in the
churchyard, as are for the defence of the church. And
if the trees be a6lually cut down by any perfon, for
other ufe than is here fpecified ; it is thought that he
may be indicted and fined upon this ftatute. 1 1 Co» 49.

Gibf 20'^,

4. Altho' the church and churchyard be the parfon's. Way,
and be confecrated ; yet a man may prefcribe to have sl

way

320 CMrcfi.

way through the church or churchyard. 2 kolfs Jhfi
265.

jj^^^ 5. No one can make a private doof into the church-*

yard, without the confent of the miniftcr whofe freehold
the churchyard is, and a faculty alfo from the bifhop for
the fame. Par. L. 88, 89.

SuHdiafiupoait. 6. //. 13 G. 2. The reaor and pariftiioners of Sf
Georges Hanover Square againft Steuart* The parish was
cited to appear in the bifhop of London's court, to (hew
caufe why a licence fhould not be granted to Mr Steuart,
to eredl a charity fchool on part of the churchyard. And
upon motion of the rcdlor and pariftiioners, a prohibition
was granted ; for the eccleiiafticai court hath nothing to
do with this, and cannot compel them withouit their con-
fent. Str, 1 1 26.

Stiundary, 7* ^* 8 G. 2. Peiv againft the churchwardens of St

Mary Rotherhithe. Pew was libelled againft in the fpiri-
tual court, for a nufance and encroachment on the church-^
yard ; to which he pleaded, that he was the owner of
four tenements, which formerly ftood on the ground iri
queftion, and that his prefent building was upon the old
foundation, and did not proje£l further. And this not
being a matter properly triable there, a prohibition was
granted. For tho* interrupting the ufe of a churchyard^
as a churchyard, is properly cognizable in the ecclefiaftical
court ; yet the bounds of it, which is matter of freehold^
ought not to be determined there. Sir, 1013.

£. 9 /^. Hilliard and Jeffrefon. A parfon libelled
againft the defendant in the fpiritual court of York, for
having cut elms in the churchyard ; and a prohibition wa^
granted, upon fuggeftion, that they grew on his freehold.f
X. Raym, 212.

VI. Repairs.

Anciently by tke '* Anciently, the biihops had the whole tithes of the

fciftops. diocefe ; a fourth part of which, in every parifh, was to'

be applied to the repairs of the church : but upon a re-'

leafe of this intcrcft to the reaors, they were confe-

quently acquitted of the repairs of the churches* Degge^

Part I. c. 12.

K«t by th€ rec- 2. And by the canon law, the repair of the church bc-

tort. longeth to him who receiveth this fourth part > that is, to

the rc(^or, and not to the pariftiioners.
Finally by the 3* But cuftom (that is, the common law) transferreth
inhabiunw. the burden of reparation, at leaft of the nave of the church,

A iir'on

CIjttrcI> 321

upon the parifiiloners ; and likewife fometlmes of the
chancel, as particularly in the city of London in many
churches there. And this cullom the parifhicners may
be compelled to obferve, where fuch cuftom is. Lindw,

53-

^ 4. But, generally, the parfon is bound to repair the Repair of the
chancel. Not becaufe the freehold is in him, for fo is chancel in parti- ^
the freehold of the church; but by the cuftom of Eng- ^^J^""' ''^ ^^^ '^''-
land, which hath allotted the repairs of the chancel to
the parfon, and the repairs of the church to the pari-
fhioners : yet fo, that if the cuftom hath been for the pa-
rifh, or the eflate of a particular perfon to repair the
chancel, that cuftom fhall be good j which is plainly in-
timated by Lindwood as the law of the church, and is
alfo confirmed by the common law, in the books of re-
ports. But as to the obligation refling upon the parfon,
or upon the vicar ; concerning that, the books oi com-
mon law fay nothing ; and fo, it is wholly left upon that
foot, on which the law of the church hath placed it.
Gibf, igg.

5. As to the vicars, it is ordained by a conftitution Sometimes bjt
of archbiftiop Winchelfea, that the chancel fhall be re- '^« "f'^^"'
paired by the redlors and vicars, or others to whom fuch
repair belongeth. Lindw, 253.

Whereupon Lindwood obferveth, that where there is
both re<Stor and vicar in the fame church, they fhall con-
tribute in proportion to their benefice. Lindvj, 253.
7, Which is to be underflood, where there is not a cer-
tain diredion, order, or cuftom, unto which of them
/uch reparation fhall appertain. Lindw. 253.

^ 6. And as re6lors or fpiritual perfons, fo alfo impro- By lay improprI<;
nriators, are bound of common right to repair the chan- *^''^^*
tels. This doctrine (under the limitations exprefled in
Ae foregoing article) is clear and uncontefted : the only
yfficulty hath been, in what manner they fhall be com-
pelled to do it ; whether by fpiritual cenfures only, in
like manner as the pari fhioners are compelled to contri-
bute to the repairs of the church, fince impropriations are
now become lay fees; or whether by fcqueftrations (as
incumbents, and, as it fhould feem, fpiritual impropria-
tors of all kinds, may be compelled). Gilf, 199.

As to this, it is faid to hrve been the opinion of the
court of common pleas, that the fpiritual court may grant
fequeflration upon an impropriate parfonage for not re-
pairing the chancel, M. 29 C. 2. 3 Kch. 829. yet by
another book it is faid, that the court of common picas
Vol. L Y did

3 2 2 CljttrcD

did incline that there could be no fequeftration ; for be-
ing made lay fee, the impropriation was out of the ju-
rifdidtion of the court chriftian, and they were only to
proceed againft the perfon as againft another layman for
not repairing the church, T". 22 C. 2. 2 Ventr. 35. And
by the fame cafe as reported 2 Mod, 257. it is faid that
the whole court except Atkins were of that opinion^
TFatf, c. 39.

On the contrary, Dr Gibfon obferveth, that impropri-
ations, before they became \2ky fees, were undoubtedly
liable to fequeftration ; that the king was to enjoy them
in the fame manner as the religious had done, and nothing
was conveyed to the king at the diflblution of monafteries
but what the religious had enjoyed, that is, the profits
over and above the finding of divine fervice^ and the re-
pairing of the chancel, and other ecclefiaftical burdens :
and the general faving (he fays) in the 31 iJ. 8. c, 13*
may be well extended to a faving of the right of the or-
dinary in this particular, which right he undoubtedly had
\y the law and practice of the church, which faid right
is not abrogated by any ftatute whatfoever. G'thf, 199.

And he obferveth further thefe things : i. That altho*
(as was exprefsly alledged in the two cafes above referred
to) this power had been frequently exercifed by the fpi-
ritual courts ; yet no inftances do appear, before thefe, of
any oppofition made. 2. That in both the faid inftances,
judgment was given, not upon the matter or point in
hand, but upon errors found in the pleadings. 3. That
one argument againft the allowing the ordinary fuch ju-
rifdi£lion, was ab inconvenienti, that fuch allowance
would be a ftep towards giving ordinaries a power to aug-
ment vicarages ; as they might have done, and frequently
did, before the diflblution. Gihf. 199.

Where there are more impropriators than one (as is
very frequently the cafe) and the profecution is to be
carried on by the churchwardens to compel them to re-
pair, it feemeth advi fable for the churchwardens firft to
call a veftry, and there (after having made a rate for the
repair of the church and other expences neceflary in the
execution of their office) that the veftry do make an or-
der for the churchwardens to profecute the impropriators
at the parifti expcnce. In which profecution, the court
will not fettle the proportion amongft the impropriators,
but admonifh all who are made parties to the fuit, to re-
pair the chancel, under pain of excommunication. Nor
will it be neceflary to make Qvzvy impropriator a party,

but

CDtttclj. 323

but only to prove that the parties profecuted have received
tithes or other profits belonging to the rectory fufficient
to repair it 5 and they muft fettle the proportion arnongft
themfelves. For it is not a fuit againft them for a fum
of money, but for a negle6l of the duty which is incum-
bent on all of them. Tho' it may be advifable, to make
as many of them parties as can be come at with certainty.

7, Repairing of the chancel, is a difcharge from con- Repairing the
tributing to the repairs of the church. This is fuppofed cjjancel, a dif-
to be the known law of the church, in the glofs of John rep^afrs of^tbeL
de Athon upon a conftitution of Othobon (hereafter men- church,
tioned) for the reparation of chancels ; and is alfo evident

from the ground of the refpeitive obligations upon parfon
©nd parifhioners to repair, the firft the chancel, t;he fe-
cond the church ; which was evidently a divifion of the
burden, and by confequence a mutual difengaging of
each, from that part which the other took. And there-
fore as it was declared in ferjeant Davie s cafe (2 Roll's
'Rep. 211.) that there could be no doubt but the impro-
-priator was rateable to the church, for lands which were
not parcel of the parfonage, notwithftanding his obliga-
tion, as parfon, to repair the chancel 5 fo, when this
plea of the farmer of an impropriation (2 Keb, 730, 742.)
to be exempt from the parifh rate becaufe he repaired the
chancel, was refufed in the fpiritual court, it muft pro-
bably have been a plea offered to exempt other pofTeflions
•alfo from church rates. Gibf, 199, 200.

8. If there be a chapel of eafe within a parifh, and Repairing a cha-
fome part of the parifh have ufed time out of mind, alone, P^J f^^^^c "'^
without others of the parifhioners, to repair the chapel of jj,g rep?irJfLhe
eafe, and there to hear fervice, and to marry, and all church.
other things, but only they bury at the mother church ;

yet they (hall not be difcharged of the reparation of the
mother church, but ought to contribute thereto : for the
chapel was ordained only for their eafe. 2 RoWs Abr.
289.

So in the faid cafe, if the inhabitants who have ufed to
repair the chapel, prefcribe that they have time out of
mind ufed to repair the chapel, and by reafon thereof
have been difcharged of the reparation of the mother
church ; yet this fhall not difcharge them of the repara-
tion of the mother church, for that is not any direct pre-
fcription to be difcharged thereof; but it is, by reafon
thereof, a prefcription for the reparation of the chapel.
2 RoWs Abr. 290.

If the chapel be three miles diflant from the mother
church, and the inhabitants who have ufed to come to

Y 2 the

24 Cljurtl).

the chnpel have ufed always to repair the chapel, and
there marry and bury, and have never within fixty years
been charged to the repair of the mother church ; yet this
is not any caufe to have a prohibition : but they ought to
fliew in the Ipiritual court their exemption, if they have
any, upon the endowment. 2 Roll's Abr, 290.

But if the inhabitants of a chapelry prefcribe to be
difcharged tbne out of jnind of the reparation of the mother
church, and they are fued for the reparation of the mo-
ther church ; a prohibition lieth upon this furmife. 2
Roirs Abr. 290.

If there be a parifh church and a chapel of eafe within
the fame parifh, and the chapel of eafe hath time out of,
mind had all fpiritual rights except fepulture, and this
hath been ufed to be done at the parifh church, and there-
fore they who have ufed to go to the chapel of eafe have
ufed time out of mind to repair a part of the wall of the
churchyard of the parifh church, and in confideration
thereof, and becaufe that they who are of the chapel of eafe
have ufed time out of mind to repair the chapel of eafe
at their own cofls, they have been time out of mind dif-
charged oi the reparation of the parifh church ; this is
a good prefer! ption ; and therefore if they be fued in the
fpiritual court to repair the parifh church, a prohibition
lieth. 2 Roirs Abr. 290.

. If the chapel of eafe hath ufed time out of mind to have
all divine fervices except burial, and the inhabitants with-
in the chapelry have Hkewife always repaired the chapel,
and prefcribe in confideration of 3 s. 4d. a year to be paid
for the reparation of the mother church to be difcharged^
of the reparation of the mother church 5 if the inha-
bitants of the chapelry are fued for the reparation of the
mother church, a prohibition lieth upon this modus. 2
Roll's Abr, 290.

jT. I W, Ball and Crofs, The inhabitants of a cha-
pelry within a parifh, were profecutcd in the ecclefiaftical
court, for not paying towards the repairs of the parifh
church ; and the cafe was, thofe of the chapelry never
had contributed, but always buried in the mother church,
till about Henry the eighth's time the bifhop was pre-
vailed on to confecrate them a burial place, in confider-
ation of which they agreed to pay towards the repair of
the mother church. All which appeared upon the libel.
And it was held by Holt chief julHce, that thofe of a
chapelry may prefcribe to be exempt front repairing the
mother church, as where it buries and chriflens within it

4 i<^

Cljttrcl;; 325

felf, and hath never contributed to the mother church ;
for in that cafe it fhall be intended co-eval, and not a
Jatter eredlion in eafc of thofe of the chapelry : but here
it appears, that the chapel could be only an ere6]:ion in
cafe and favour of them of the chapelry ; for they of the
chapelry buried at the mother church till Henry the
eighth's time, and then undertook to contribute to the
repairs of the mother church, i Salk. 164, 165.

9. If two churches be united,, the repairs of the feveral ChurdicMmired,
churches fhall be made as they w^ere before the union. ^"^ to be re-
DeggeP. I. c, 12. P"''^'^-

10. Othobon. The archdeacon fljall caufe chancels to ^^Ecclefiafiical
repaired^ hy thofe who are bound thereunto, Ath. 112. J?'^^" ^'" ""^"^

■' ' -f J the repairs to be

done.

Reynolds, TVe tnjoin the archdeacons and their ofpc'ials^
that in the vifitation of churches^ they have a diligent regard to
the fabrick of the chuYchy and efpecially of the chancel^ to fee
if they want repair : and if they find any defers of that kindy '
thry Jhail limit a certain time under a penalty ^ within which
they Jhall be repaired, Alfo they fiall inquire by thcmfclves
or their officials in the parijhes where ' they vifit^ if there be
ought in things cr perfons zuhich zvantcth to be corre^ed ; and
if they Jhall find any fuch^ they jl) all correal the fame either then
or in the next chapter, Lindv/. 53.

Fabrick] The fabrick of the church confiftcth of the
walls, windows, and covering. Lindw, 53.

Under a penalty] Where the penalty is not limited, the
fame is arbitrary (faith Lindwood) : But this cannot in-
tend here (he fays) the penalty ol excommunication ; inaf-
much as it concerneth the parifhioncrs ut univerfos^ as a
body or whole fociety,vwho are bound to the fabrick of
the body of the church : For the pain of excommunica-
tion Is not inflicted upon a whole body together, altho'
it may be inflidled upon every perfon feverally, who fliall
be culpable in that behalf. And the fame may be ob-
ferved as to the penalty ol fufpenfion\ which cannot fall
upon the pariftiioners as a community or coIlc6ti\'e body.
Yet the archdeacon in this cafe, if the defc6l be enormous,
may injoin a penalty, that after the limited time fliall
be expired, divine fervice fhall not be performed in the
church, until competent reparation fhall be made : fo
that the parifhioners may be puniflied by fufpenfion or in^
tcrdi<St of the place. But if there are any particular per^
>ns who are bound to contribute towards the repair, and
Uho' they be able, are not willing, or do ncgleil the
Y 3 fame 5

325 Cl)imi^»

fame ; fuch perfons may be compelled by a monition to
fuch contribution, under pain of excommunication : that
fo the church may not continue for a long time unre-
paired, thro' their default. Lindw. 53.

But this was before the time that churchwardens had
the fpecial charge of the repairs of the church : And
it feemeth now, that the procefs fhall ifTue againft the
churchwardens, and that they may be excommunicated
for difobedience.

StratfDrd. Forafmuch as archdeacons and other ordinaries
in their vlfitatlons^ finding defers as well In the churches as in
the orm^menis thereof, and the fences of the churchyard^ and in ,
the houfes of the Incumbents^ do command them to be repaired
under pecuniary penalties ; and from thofe that do not obey do
extort the fald pefialtles by cenfures, wherewith the fald defeSis \
ought to he repaired^ and thereby Inrlch their own purfes to
the damage of the poor people ; therefore that there may be no ■
cccafion of complaint agalrfl the archdeacons and other ordinaries
and their mlmjiers by reafon of fuch penal ex anions ^ and that
it becometh not ecclefiafilcal perfons to gape after or enrich them"
felves with dljhonefi and penal acqulfitlons ; we ordain^ that
fuch penalties^ fo often as they fhall he exa5led, fhall be con-
verted to the ufe of fuch repairs^ under pain of fufpenfton ah
cfficlo which they fhall Ipfo fa^o Incur ^ until they Jh all effeEiu-
ally ajjign what was fo received to the reparation of the fald de^
feSfs, Lind. 224.

By Canon 86. Every dean^ dean and chapter, archdeacon^
and others which have authority to hold ecclefiafilcal vifitailons
by compofitlon, law, or prefcrlptlon ; fhall furvey the churches
of his or their jurlfdl^ilon^ once in every three years, in his
own perfon, or caufe the fame to be done*

And by the faid canon they were required, from time
to time to certify the high commiifioners for caufes eccle-
fiaftical, every year, of fuch defeds in any the faid
churches, as he or they ihould find to remain unrepaired,
and the names and firnames of the parties faulty therein.
Upon which certificate, the high commiilioners were de-;
fired by the faid canon ex officio mero to fend for fuch par-
ties, and compel them to obey the juft and lawful decrees,
of the ecclefiaftical ordinaries makjng fuch certificates.—
But by the 16 6\ r. 11. the high commi/fion court was
abolifhed j fo that the cognizance thereof now refteth
folely upon the ecclefiaftical judge.

II. By

CDttrcl). 327

11. By the ftatute of Circumfpefe agatis, 13 Ed., i. No prohibition
ft. 4. If prelates do pun'ijh for that the church is uncovered^ incafeofrepain.
©r not conveniently decked \ the fpiritual judge Jhall have power

to take knowledge^ notwithjianding the kings prohibition.

The church] This is intended not only of the body of
the church, which is parochial, but alfo of any publick
chapel annexed to it ; but it extendeth not to the private
chapel of any, tho' it be fixed to the church, for that
muft be repaired by him that hath the proper ufe of it,
for he that hath the profit ought to bear the burden.
And this the parifhioners ought to do, by cuftom known
and approved : and the conufance thereof is allowed to
the ecclefiaftical court by this ail. 2 Injl. 489.

12. Can. 85. The churchwardens or queftmen Aiall Church wnHen«
take care and provide, that the churches be well and fuf- duty cherem.
iiciently repaired, and fo from time to time kept and
TTiaintained, that the windows be well glazed, and that

the floors be kept paved, plain and even.

If the churchwardens ere(Sb or add any thing new in
the church, as a new gallery where there was none be-
fore ; they muft have the con fen t of the major part of the
pariihioners, and alfo a licence of the ordinary, i Mod.

237-

But as to the common reparations of the fabrick or

ornaments of the church, where nothing new is added or
done, it doth not appear that any confent of the major
part of the parifhioners is necefiary ; for to this the church-
wardens are bound by their office, and they are punifhable
if they do it not.

If the major part of the parifhioners of a parifh, where
there are four bells, agree that there fhall be made a
fifth bell, and this is made accordingly, and they make
^ rate for paying for the fame ; this fhall bind the lefTer part
of the parifhioners, altho' they agree not to it : for other-
wife any obftinate perfons may hinder any thing intended
to be done for the ornament of the church. 2 KoWs Abr,
291.

And altho' churchwardens are not charged with the
repairs of the chancel, yet they are charged with the fu-
pervifal thereof, to fee that it be not permitted to dilapi-
date and fall into decay \ and when any fuch dilapidations
ihall happen, if no care be taken to repair the fame, they
are to make prefentment thereof at the next vifitation*
Par, L. 88.

If a church be fo much out of repair, that it is ne-
CefTary to pull it down 3 or fo little, that it needs to be

y 4 inlarged:

328 CljtttClj.

inlarged : the major part of the pariihioncrs, having firft
obtained the conlent of the ordinary to do what is need-
ful, and meeting upon due notice, may make a rate for'
new building, or inlarging, as there fhall be occafion.
This was declared in the 29 C. 2. by all the three courts
fucceilivcly ; notwithftanding the caufe was much la-
boured by a great number of quakers who oppofed the
rate. 2 Mod. 222. Gibf. 197.

And the proper method of proceeding in fuch cafe
feemeth to be thus : namely, that the '^hurchwardens firft
of all take care that publick notice be given in the church, .
for a general veftry of the whole parifh for that purpofe ;
which notice ought to be attefkd and carefully preferved,
as being the foundation of all the fubfqquent proceedings.
At the time and place of meeting, the minifter and
churchwardens ought to attend ; and when the parifhion-
ers are afiembled, the minifter is proper to prefide ; and
he, or one of the churchwardens, or fuch perfon as fhall
be appointed by them, ought to enter the' orders of the
veftry, and then have them read and figned. And agree-
able thereunto, a petition to the ordinary for a faculty
(fetting forth the particulars) ftiould be drawn up and
figned by the minifter churchwardens and parifhioners
prefcnt and approving thereof. Whereupon the ordinary
will iftue a monition, to cite all perfons concerned, to
fhew caufe why a faculty fhould not be granted. Upon
the return of which citation, if no caufe or not fufficicnt
caufe is fliewed, the ordinary will proceed to grant a fa-
culty as is defircd, and as to him fhall fecm good.

VII. Church feat.

Or'Rinal of the '• Before the age of the reformation, no feats were

diflindt property allowed, nor any diftin(St apartment in a church afTigncd

in Ibaib. ^Q diftin(5i: inhabitants; except for fome very great perlbns.

The feats that were, were moveable, and the property of

the incumbent, and fo in all refpe(Sts at his difpofal.

Many wills of incumbents are to be fcen, whereby they

did of old bequeath tlie feats in the church to their fuc-

ceffors or others as they thought fit. Athon and Lind-

wood are filcnt in the cafe. ^I'hc common-law books

mention but two or three cafes before this time, and thofc

relating to the chancels, and feats of perfons of great

quality. Jolmf. 175, 176. Ken. Par, /Int. 596.

Of common right 2. And generally, the feats in churches are to be built

ro be rn^-rrci by ^^^ jcpaircd as the church is to be, at the eencral charge

the parifhioijcrs, * \. ' ' ^ Z/c

C!)tttcl). 329

of the panfliloners, unlefs any particular perfon be charge-
able to do the lame by prefcription. Degge P. i. c, 12.
\ 3. And altho' the freehold of the body of the church Ufe of the feats
1 be in the incumbent thereof, and the feats therein be '^^l]^' P^'^'^'°'^-
fixed to the freehold ; yet becaufc that the church is de-
dicated to the fervice of god, and is for the ufe of the
inhabitants, and the feats are ere6):ed for their more con-
' vcnient attending upon divine fervice, the ufe of them is
common to all the people that pay to the repair thereof.
And for this reafon, if any feat, tho' affixed to the church,
be taken away by a ftranger ; the churchwardens, and
not the parfon, may have their adlion againft the wrong
doer. Watf. f. 39. *

4. But the authority of appointing what perfons fhall BilTiop to difpofc
•fit in each feat, is in the ordinary; who is to take care to^^^^^"^^*

order all things appertaining to divine fervice, fo that the
-, fervice of god may be beft celebrated, that there be no
• contention in the church, and that all things be done de-
cently and in order : for he, having the cure of fouls, is
prefumed by the law to be a perlonthat will have a pru-
dent regard to the qualities of men in this cafe, and to
give precedence to fuch as ought to have it. Watf, c, 39.
In the aforefaid cafe of Corven and Pyrtiy it was refol-
%^ed, that if any man hath an houfe in a town or parifh,
and he and thofe whofe eftate he hath in the houfe, have
had time out of mind a certain pew or feat in the church,
maintained by him and them ; the ordinary cannot remove
him (for prefcription maketh certainty, the mother of
quietnefs), and if he do, a prohibition lieth againft him.
. But where th^re is no prefcription ; there the ordinary,
that hath the cure and charge of fouls, may for the avoid-
ing of contention in the church or chapel, and the more
quiet and better fervice of god, and placing of men ac-
cording to their qualities and degrees, take order for the
placing of the parifhioners in the church or chapel pub-
Jick, which is dedicate and confecrate to the fervice of
god. 3 Infl. 202.

For the difpofal of the feats in the nave of the church,
appertaineth of common right to the bifliop of the diocefe ;
fo that he may place and difplace whomfoever he plea-
feth. 2 Roll's Ahr, 288.

5. But by cuftom, the churchwardens may have the Churchwarden*
ordering of the feats, as in London ; which, by the like P^^j^^ ^i^^tr^^
cuftom may be in other places. Watf. c. 39.

For a cuftom time out of mind, of difpofmg of feats by
the churchwardens and major part of the parifh, or by

twelve

twelve or any particular number of the parlfliioners, is a
good cuAom ; and if the ordinary interpofe, a prohibition
will be granted. GihJ, 198.

But the churchwardens muft fhew fome particular rea-
fon, why they are to order the feats exclufive of the or-
dinary : for a general allegation, that the pariftiioners
have ufed to repair and build all the feats in the church,
and by reafon thereof the churchwardens have ufed to or-
der and difpofe of the feats, is not fufficient to take away
the ordinary's power in difpofing and ordering the feats ;
becaufe this is no more than the parilhioners are bound to
do of common right, to wit, building and repairing the
feats, for which they have the eafment and convenience
of fitting in them. Watf. c. 39.

But if thro' the increafe of inhabitants, more pews or
galleries be neceffary; it is faid to be agreed, that the
churchwardens cannot ere£t them of their own head..
Some fay, it cannot be done without the licence of the
ordinary. And it is clear ; if there be a difpute, whether
more pews are neceffary, or where they fhall be placed,
the ordinary is fole judge in that cafe. But if the in-
cumbent, churchwardens, and parifhioners do unanimoufly
agree, that more pews are neceffary, and that they fhall
be fixed in fuch a place ; it doth not feem that there is
any necelHty for the ordinary's interpofition : for there can
be no need of a judge, where there is no controverfy.
Johnf 163. AyLParerg. 484.
Reparation he- 6. If a perfon prefcribe, that he and his anceflors, and
cefTary to make a all they whofe eflate he hath in a certain meffuage, have
title. ^^gj ^Q f-j^ j^^ ^ certain feat in the nave of the church for

time out of mind, in confideration that they have ufed
time out of mind to repair the faid feat : if the ordinary
remove him from this feat, a prohibition lieth ; for the
ordinary hath not any power to difpofe thereof, for this is
a good prefcription, and by intendment there may be a
good confideration for the commencement of this pre-
scription, altho' the place where the feat is be the free-
hold of the parfon. 2 Roll's Ahr, 288.

But if a perfon prefcribe to have a feat in the nave of
the church, generally, without the faid confideration of
repairing the feat, the ordinary may difplace him, 2 KoH'i
Abr, 288.
Seat not to go to y. A feat may not be granted by the ordinary, to a per-
hchs?*"'^^'' ^^" ^^^ ^'^ ^^'^^ abfolutely. For the feat doth not be-
long to the perfon, but to the inhabitant ; otherwife, if
he and his heirs go away, and dwell in another parifh,

they

ClJtttclJ* 331

they (hall yet retain the feat, which is unreafonable.
Gibf. 197.

8. A ieat in the nave or body of a church, maybe pre- Seat may be pie-
fcribed for as belonging to a houfe. This doctrine was Scribed for, aa
heretofore doubted, and fometimes denied and overruled, h^ufef "^ ^ *
with regard to the general right of the ordinary, and the
jurifdidlion of the fpiritual authority ; but it feems now

to be the doctrine received. Only, the reparation of it
by the perfon pleading fuch prefcription, and praying a
prohibition thereupon, muft of neceflity be alledged here ;
becaufe the ordinary in the body of the church prima fa-
cie hath the right -, and nothing but fuch private repara-
tion can deveft him of that right ; which right Hands good
and intire (notwithftanding pofTeflion and ufe time out of
mind) if the parifh have but repaired. But it hath been
held, that in two cafes, reparation need not be particu-
larly pleaded 5 iirft, in cafe of prefcription for an ile,
becaufe (fay they) by the common law the particular
perfons are fuppofed to repair, and fo need not fhew it ;
and the foundation of the right may be for other caufes
than repairing, as for being founder, or having been con-
tributory to its building : but this is not out of quefHon.
The fecond cafe (which hath often been declared for
law) is, where an adlion upon the cafe is brought againft
cuie who difturbs another in a feat ; which difturber being
a ftranger, and having not any right prima facie, the
pofFeffion of the other is a fufficient ground of action, and
it needs not be alledged that he repairs. Gibf, 197, 198.

9. A feat cannot be claimed by prefcription, as appen- And notasfee*
dant to la7id^ but to an houfe. For fuch a feat belongeth long>"g to the
to the houfe in refpe^l'of the inhabitants thereof: and yet ^"'**

it hath been held, that a feat in an ile may be prefcribed
for by an inhabitant of another parifh. Gibf 198.

10. As a feat in the church, fo priority in a feat, may Priority in a feat
be prefcribed for. Thus it was declared in the cafe of "^*7 be pre-
Carleton and Hution^ E. 2 Cha, Carleton claimed the up-
per place in a feat. Hutton difturbed him. The arch-

bifliop of York fent an inhibition to Carleton, till the
matter ihould be determined before him. But prefcrip-
tion was furmifed, and thereupon prohibition obtained :
becaufe as well the priority in the feat, as the feat it felf,
maybe claimed by prefcription. Noy 78. Latch ii6.

11. Dr Gibfon alTerts, that the feats in the chancel arCn-A^ >,yc^r
under the diipolition or the ordinary, m hke manner as tion of feats io
thofe in the body of the church. Which needs only to the chancel.
be mentioned (he faith), becaufe there can be no real

Z ground

332

CDurcl).

Impropriator s
feat in the chan
eel.

Vicar^s feat in
the chancel.

ground for exempting it from the power of the ordinary ;
Imce the freehold of the church is as much in the parfon,
as the freehold of the chancel ; but this hinders not the
authority of the ordinary in the church, and therefore
not in the chancel. And in one of our records, he fays,
in archbifliop Grindal's time, we find a fpecial licence
ifilied, for the ere6ling feats in the chancel of a church,
together with the rules and directions to be obferved
therein. Gibf. 200.

And Dr Watfon argues to the fame purpofe ; altho' the
law (he fays) feems now to be fettled to the contrary.
Watf. c. 39.

12. The parfon, or redor impropriate, is intitled to
'the chief feat in the chancel. This was refolved by the

court of king's bench, T. 7 y. in the cafe of Hall and
Ellis^ that fo it is of common right, in regard to his re-
pairing the chancel ; but it was declared at the fame time,
that by prefcription another parifliioner may have it.

^^y 133- 7^^Y- 164-

13. In fome places, where the parfon repairs the chan-
cel, the vicar by prefcription claim.s a right of a feat for
his family, and of giving leave to bury there, and a fee
upon the burial of any corps. John/. 242, 24.3.

As to the right of a feat in the chancel, it was originally
inherent in every vicar. For before the reformation, the
hours of the breviary were to be fung or faid in the chancel
(not in the body of the church), by the exprefs words of
a conftitution of archbifliop Winchelfea ; and this was to
be done, not only on fundays and feftivals, but on other
days, by another conftitution of the faid archbifhop :
And thefe hours were to be fung or rchearfed, not by the
vicar alone, but with the confort and afTiftance of all the
clergymen belonging to the church, which were the ec-
clefiaftical family of the vicar. So that it is evident, that
all vicars had a right of fitting there before the reformation,
and by confequence muft retain this right ftill, unlefs it
appear that they have quitted it : and if they have not for
forty years paft iifed the right, this breeds a prefcription
againft them in the ecclefiaftical courts. In many chan-
cels are to be feen the ancient feats or flails ufed by the
vicar and his brethren in performing thefe religious offices,
like thofe which remain in the old choirs of cathedral and
collegiate churches ; and from hence it is, that canccllus
and chorus (the chancel and the choir) are words of the
fame fignification. This being the place, where the body
of the clergy of every church did ^w^g-, or at leaft rehearfcd

their

CftttUt). 333

their breviary : and if any common parifhioner may pre-
fcribe to a pew in the chancel, much more may the vicar.
Johnf, 243.

' As thefe feats were placed at the lower end of the choir
or chancel, for the daily ufe of the vicar ; fo at the upper
end ftood the high altar of every church, where, as the
.vicar or his reprefentative was obliged to celebrate mafs
every funday and holiday of obligation ; fo he might do it
every day, if there was occafion, or if he pleafed : fo that
it is clear, the ufe of the chancel was intirely in the vicar,
whoever repaired it \ and therefore no wonder if the
pavement were not to be broken up without his leave ;
and that thereupon he fliould acquire a right of receivino-
what fees were due on fuch occafions. And the reforma-
tion left the rights of parfon and vicar as it found them.
"John, 244.

It is therefore a very groundlefs notion with impropria-
tors, that they have the fame right in the great chancel,
that a nobleman hath in a lefler. Thefe lefTer chancels
are fuppofed by lawyers, to have been erected for the fole
ufe of thofe noble perfons ; whereas it is clear the great
chancels were originally for the ufe of clergy and people ;
but efpecially for the celebration of the eucharift, and
other publick offices of religion, there to be performed by
the curate and his affiftants. That the parfons repair thefe
great chancels, doth not at all prove their fole right to
them ; for they were bound originally to repair the church
as well as chancel ; and of common right the repairs of
the church are ftill in the^parfon ; it is cuftom only eafes
them of this burden. The ordinary hath no power to
order morning or evening prayer to be faid in noblemens
chancels, but he can order them to be faid in the great
chancel. Johnf. 244, 245.

14. If any feats annexed to the church be pulled down. Seats pulled
the property of the materials is in the parfon, and he may ^°^"'
make ufe of them if they were placed in the church by any
one of his own head without legal authority ; but for the
feats eredled by the parifhioners by good authority, it
feemeth that the property of the materials upon removal
is in the parifhioners. Degge P. i.e. 12.

If any perfons on their own heads fhall prefume to
build any feat in the church, without licence of the ordi-
nary, or confent of the minifter and churchwardens, or in
any inconvenient place, or too high ; it may be pulletl
down by order from the bifhop or his archdeacon, or by
the church wardens^ by the* ton fen t of the parfon : for

the

334. Cljttttf).

the freehold of the church, and all things annexed to it,
are in the parfon ; and therefore if any prefume to cut or
pull down any feat annexed to the church, the parfon
may have an aftion of trefpafs againft the mifdoer (tho*
he formerly fet it up,) if he do it without the parfon's
confent, or order from the ordinary ; but if the feat be
fet loofc, he that built it may remove it at his pleafure.
Degge P. I. r. 12.

In the cafe of Gibfon and Wright^ in an a£lion of tref-
pafs brought by Gibfon, for breaking and cutting in
pieces his pew, and taking it away ; the defendants plead-
ed, that they were churchwardens, and that the plaintifF
had built it in the church without licence. And by the
court, The trefpafs is confefTed ; for tho' they may remove
the feat,^ they cannot cut the timber and materials into
pieces. Noy io8.

But it hath been faid, that this cafe Is not law : be-
caufe the freehold of the church being in the incumbent,
when the perfon has fixed a feat to it, it is then become
parcel of his freedom, and confequently the right is in
him ; fo that the breaking the timber could not be preju-
dicial to the other, becaufe he had no legal right to the
materials, after they were fixed to the freehold. Nelf,
493. Ayl Par, 486.

And Dr Watfon faith, altho' he will not queftion thfe
law of this cafe, yet thus much is to be faid againft it j
that the freehold being in another perfon, the annexing
of the feat thereto feems to make the feat to be a part of
the freehold, and fo to be in him in whom the freehold
is, and the ufe of it in them that have the ufe of the
church ; and if fo, then the breaking the timber could
be" no wrong to him that had no legal right in it after it
was faftcned to the freehold, and became (as other feats)
of common ufe, and at the difpofal of the ordinary.
JVatf, c. 39.

And further he faith, that if a man with the afTent of
the ordinary doth fet up a feat in the nave of the church
for himfclf, and another doth pull down or deface it}
trefpafs vi et armis in fuch cafe doth not lie againft him,
becaufe the freehold is in the parfon, and fo the only re-
medy is in the ecclefiaftical court. Waff. c. 39.
Ri ht to feats ^5* ^^ ^^ ^^^^' ^^^^ ^" ^^^ cafes of prefcriptions for feats,

%rhere triable, the ordinary hath nothing to do ; but the matter is folely"
determinable at the common law. Dez'jc P- i- ^- 12.

And therefore if a fuit be commenced in the fpiritual
court for a feat, upon the account of prefcription.; ;) pro-

'.ibition

CDtttCl), 335

hibltion will lie for the party fued, becaufe whether the
prefcription be good or not, is not in the fpiritual court
to judge. Watf, c, 39.

And it is faid that the plaintifF, if it go againft him,
may have a prohibition as' to the colts ; becaufe the fuit
is coram non judice as to the principal : but there feem
to be good reafons againft that. For the fpiritual court
may in feveral cafes proceed upon libels grounded on pre-
fcription, where the prefcription is not denied, (fo that
fuch fuits are not abfolutely coram non judice:) and the
reafon why a prohibition ihall be granted where the pre-
fcription or cuftom is denied, feemeth to be this ; that
the notion of cuftoms and prefcriptions is different by the
ecclefiaftical law from what it is at the common law, as to
the time in which fuch cuftom or prefcription may be
created : for the ecclefiaftical law allows of different times
in creating cuftoms or prefcriptions, and generally of lefs
time than is allowed of by the common law, which owns
no time in fuch cafe, but that whereof there is no memo-
ry of man to the contrary. Therefore the common law
will not fuffer the fpiritual courts to try prefcriptions,
whereby they might affe£t and charge perfons inheritances,
by adjudging them to be good, which by the common
law are no prefcriptions. 0at/, c, 39.

But the title to a feat is properly triable at the common
law, by adion upon the cafe ; and it is agreed, that the
plaintiff need not to (hew any reparation in his declara-
tion, but he ought to prove reparation in evidence. TVatf^

f- 39-

Neverthelefs, for a difturbance in the feat, a man may
fue in the fpiritual court; and the defendant, if he will,
may admit the prefcription to be tried there ; as a defen-
dant doth a modus, or a penfion, by prefcription. 2 Salk,
551. L. Raym. 755.

VIII. Goods and ornaments of the church,

I. By the I El. c. 2. Such ornaments of the churchy ^^2^ Goods ana orna-
of the minijlers thereof Jljall he retained and he ufed, as was in "**"'* »»£«»«' '
the church of England^ by authority of parliament^ in the fe-
cond year of the reign of king Edward the fixth^ until other
, order Jhall be therein taken by the authority of the queen's majefly^
with the advice of her commijfioners appointed and authorized
under the great feal of England for caufes ecclefiajlical^ or of
the metropolitan of this realm, f. 25.

Other order] Purfuant to this claufe, the queen in the
third year of her reign, granted a commiffion to the-^ch-

biihop,

336

€fnxu%

Ordinary's care
Cheisin.

Churchwardens
uce therein.

Communion
bie.

bifhop, bifllop of London, Dr Bill, and Dr Fladdon, to
reform the diforders of chancels, and to add to the orna-
ments of them, by ordering the commandments to be
placed at the eaft end. Gihf, 201.

And by the rubrick before the common prayer : Such
ornaments of the churchy and of the minijlers thereof ^ at all
times of their ?niniJirationy Jhall be retained and be in ufe^ as
were in this church of England^ by authority of parliament ^ in
the fecond year of the reign of king Edward the fxth»

2. Reynolds. The archdeacons Jhall take care^ that the '
clothes of the altar be decent and in good order ; that the church .
have fit hooks both for finging and reading \ and at leaji two

facer dotal vejhnents. Lindw. 52.

By theftatute of Chcumfpecte agatis, 13 Ed. i. fl. 4,
The king to his judges fendeth greeting, Ufe yourf elves circum-
fpeSllyy in all fnatters concerning the prelates^ where they do
punijh for that the church is not conveniently decked : in which ■
cafeSy the fpiritucd judge jhall have power to take knowledge^
notwithjianding the kings prohibition.

Not conveniently decked] For the law alloweth the cccle-
fiaftical court to have conufance in this cafe, of providing
decent ornaments for the celebration of divine fervicc.
2 Inji, 489.

3. Can. 85. The churchvi^ardens or queftmen fhall take
care, that all things in the church be kept in fuch an or-
derly and decent fort, without duft, or any thing that
may be either nolfome or unfcemly, as beft becometh the
houfe of god, and is prcfcribed in an homily to that effc6i:. ,

4. Can. 82. Whereas we have no doubt, but that in all .
'churches within the realm of England, convenient and
decent tables are provided and placed for the celebration
of the holy communion ; we appoint that the fame tables
fhall from time to time be kept and repaired in fufficient ^ ^
and feemly manner, and covered in time of divine fervice '
with a carpet oi filk or other decent ftufF, thought meet '
by the ordinary of the place (if any queflion be made of. .
it), and with a fair linen cloth at the time of the miniftra- \
tion, as becometh that table, and fo fland, faving when
the faid holy communion is to be adminiftred. At which .
time the fame fhall be placed in fo good fort within the
church or chancel, as thereby the minifter may be more
conveniently heard of the communicants in his prayer and
miniftration, and the communicants alfo more conveni-
ently and in more number may communicate with the
faid miniftcr. And all this to be done at the charge of
the parifh.

-In

In the cafe of New/on and Bawldry^ M. i An, The
cafe was, that the communion table of ancient time had
been placed in the chancel ; that there were ancient rails
about it, which were out of repair ; that the parifhioners
at a meeting had refolved to repair the chancel and rails,
and to replace the table there, and raife the floor fome
fteps higher, for the fake of greater decency : And up-
on refufal to pay the rate, and a prohibition prayed,
the court inclined that the parifliioners might do thefe
things ; for they are compellable to put things in decent
order, and as to the degrees of order and decency, there
is no rule, but as the parifhioners by a majority do agree.
Par, 70.

5. In ancient times, the biftiops preached (landing PuTpIt.
upon the ftcps of the altar. Afterwards it was found
more convenient, to have pulpits erecSted for that purpofe.
j Ayl, Par. 21.

j And by Can, 83. The churchwardens or qucflmen,
I at the common charge of the parifhioners, in every
I church fhall provide a comely and decent pulpit, to
I be fet in a convenient place within the fame, by the
j difcretion of the ordinary of the place (if any queftion
do arife) ; and to be there feemly kept for the preaching
j of god*s word.

I 6. Can, 82. And likewife a convenient feat fhall be Reading dcfk,
, made, at the charge of the parifh, for the minifter to
' read fervice in.

! 7. Can. 58. Every minifler faying the publick prayers. Surplice.
or miniflring the facramenty-or other rights of the church,
ihall wear a decent and comely furplice with fleeves, to be
provided at the charge of the parifh. And if any queflion
arife touching the matter, decency, or comclinefs there-
of ; the fame fhall be decided by the difcretion of the
ordinary.

8. Can, 81. According to a former conflitution, too Font.
much negledled in many places, we appoint, that there
(hall be a font of flone in every church and chapel where
baptifm is to be miniftred ; the fame to be fet in the an-
cient ufual places. In which only font the minifler fhall
baptize publickly.

Former conjiitution] To wit, among the canons of I57i».
Gihf, 360.

9. In an a(£b in the 27 H. 8. for punlfhment of flurdy Cheft for t\wt,
vagabonds, it was ena£tcd, that money collected for the

poor fhould be kept in the common cofFcr or box fiWing
in the church of every parlfli. ^

VgjL. I. Z And

338 C!)tlifc!j.

And by Can. 84. The churchwardens (hall provide and
have, within three months after the publifhing of thefe
conflitutions, a ftrong cheft, with a hole in the upper
part thereof, to be provided at the charge of the parifh,
(if there be none fuch already provided,) having three
keys ; of which one {hall remain in the cuftody of the
parfon vicar or curate, and the other two in the cuftody
of the churchwardens for the time being : which cheft
they fhall fet and fatten in the moft convenient place, ;
to the intent the parifliioners may put into it their alms"-
for their poor neighbours. And the parfon vtcar or cu-
rate fhall diligently from time to time, and efpecially
when men make their teftaments, call upon exhort and
move their neighbours to confer and give as they may
well fpare to the faid cheft, declaring unto them,^ that
whereas heretofore they have been diligent to beftow
much fubftance otherwife than god commanded, upon
fuperftitious ufes, now they ought at this time to be much
more ready to help the poor and needy, knowing that to
relieve the poor is a facrifice which pleafeth god : and
that alfo, whatfoever is given for their comfort, is given
to Chrift himfelf, and is fo accepted of him, that he
will mercifully reward the fame. The which alms aad'
devotion of the people, the keepers of the keys fhall,
yearly, quarterly, or oftner (as need requireth.) take out
of the cheft, and diftribute the fame in the prcfence
of moft of the parifh, or of fix of the chief of them, to .
be truly and faithfully delivered to their moft poor and
needy neighbours.
Bafin for the of- 10. Whilft the fcntences of the offertory are in read-
tertory, ing, the deacons, churchwardens, or other fit perfon

appointed for that purpofe, fhall receive the alms for
the poor, and other devotions oi the people, in a de-
cent bafin, to be provided by the parifh for that pur-
pofe. Rub?\

This offertory was anciently an oblation for the ufe of

the prieft ; but at the reformation it was changed ii)ta

alms for the poor. Jyl. Par, 394.

Chalice and , i\. Can, 20. Thc churchwardens, againft the tiqie of

(«her vciTcis for evcry communion, fliall at the charge of thc parifhy

the communion, ^.^j^ ^.^^ ^j^j^^ ^^^^ direction of the miniftcr, provide a

fufticient quantity o^ fine white bread and of good and^

wholcfomc wine : which wrnc we require to be brought

to the communion table, in a clean and fweet ihmdihg

pot, or ftoop of pewter, if not of purer metal.

2 -Wrichclf6A;\

Cfjltttf). 339

tVinchelfea, The pariftiioners (hall find at then: own
charge the chalice or cup for the wine. Lindtu, 252*
• Which, fays Lindwood, altho' exprefled in the fmgu-
lar number, yet is not intended to exclude more than
one, where more are necefTary. Lindw. 252.

12. Wincheljea. The parifhioners, at their own charge, BcHs,
fhall find hells with ropes. Lindw, 252.

13. Winchelfea, The parifhioners fhall find, at their Sicr,
own charge, a bier for the dead. Lind, 252.

14. Can, 80. If any parifhes be yet unfurnifhed of the Bible,
bible of the largeft volume ; the churchwardens fhall
within convenient time provide the fame at the charge

of the parifli.

Bihle of the largejl volume\ This was dire£led by the
fecond of lord CromwcH's injundlions under king Henry
the eighth ; and in the thirty third year of the fame reign j
it was inforced by proclamation and a penalty of 40 fli.
The like order for this, and alfo for the paraph rafc of
Erafmus, was in the injunctions of Ed, 6. and continued
\Ti thofe of queen elizabeth ; and (together with the book
of homilies) in the canons of 157 1. But what bible is
hear meant, by that of the largeft volume^ is not very clear.
King Jaxnes the firfl's tranflation was not then made :
Queen Elizabeth's bible was called the - lijhcp*s bihle ; and
the tranflations and reviews, commonly called the great
bihky were thofe of Tindal and Coverdale in the time of
king Henry the eighth, and that which was publifhed by
dire<Elion of archbifhop Cranrqer in the reign of Edward
the fixth. Gihf. 202.

15. By Can. 80. The churchwardens or queflmen of Common prayer
every church and chapel fhall, at the charge of the pa- ^^°^*

rifh, prqv^de the book of common prayer, lately ex-
plained in fome few points by his majefty's authority ac-
cording to the laws and his highrtefs's prerogative in that
behalf; and that, with all convenient fpeed, but at the
furthefl within two months after the publifhing of thefe
our conflitutions.

Latefy explained] To wit, in the conference at Hampton
court. Gibf, 226.

By the I El, c, 2. The book of common prayer fhall
he provided at the charges of the parifhioners of every
parifh and cathedral church, f. 19.
• By the 13 ^ 14 C. 2. f. 4. A true printed copy of the
(prefent) book of common prayer fhall, at the cofls and
charges of the parifhioners of every parifh- church and

Z 2 chapclry,

340 Cijttt^*

chapel ry, cathedral church, college and hall, be provided
before the feaft of St Bartholomew 1662, on pain of 3I. .
a month for fo long tim^^, as they (hall be unprovided
thereof. - C 26*
Brokofhomi- 1 6- Can. ^o. If any parifhes be yct unfurnifhed of the
iies. . lx)ok of _ homilies allowed by authority ; the churchwar-

dens fhall within convenient time provide the fame at the
charge of the parifh.

Reginerbook. 17-^7 ^^"' 1^' ^^ ^^^^X P^^^^ church and chapel^'
fhall be provided one parchment book at the charge of.
the parifh, wherein fhall be written the day and year
of every chriftning, wedding, and burial within the pa-
rifh ; and for the fafe keeping thereof, the churchwar*
dens at the charge of the parifh fhall provide one fure
coffer, with three locks and keys, whereof one to re-
main with the minifler, and the other two with the church-
wardens feverally.

And by the 26 G. 2. c, 33. The churchwardens
fhall provide proper books of vellum, or good and du-
rable paper ; in which all marriages and banns cf mar-r
r'lage refpedlively, there publifhed or folemnizcd, fhall
be regiftred 3 to be carefully kept and preferved for pub-
lick ufe.

And by the 30 C. 2. f. 3. for hurrying in woollen ; all
perfons in holy orders, deans, parfons, deacons, vicars,
curates, and their or any of their fubflitutes, fliall take
an exact account and keep a regifter of every perfon huri^
edm their refpeilive precinds.

Table of degrcci. 1 8. Can. 99. The table of degrees of marriages pro-
hibited, fhall be in every church publickly fet up at the
charge of the parifh.

Ten command- 19. Can. ^2. The ten Commandments fhall be fet at

menis. ^\^q charge of the parifh, upon the eafl end of every

church and chapel, where the people may befl fee anH
read the fame.

Sentences. 20. Can. 82. And Other chofen fcntences fhall at the

like charge be written upon the walls of the faid churches
and chapels^ in places convenient.

Monurr nw * ^^* Lord Coke fays, concerning the building or erec-
ting of tombs, fepulchrcs, or monuments for the deceaf-
cd, in church, chancel, common chapel, or churchyard,
in convenient manner ; it is lawful : for it is the lafl
work of charity that can be done for the deceafed ; who
vvhilll he lived was a lively temple of the holy ghofl,
with a reverend regard and chriflian hope of a joyful re-
furrcdtion. And the defacing of thcni is punifhable by

the

ClmrcD. 34Jf

the common law, as it appeareth In the book of the 9 Ed.
4» 14. the lady Wiches cafe, wife of Sir Hugh Wich^y
and fo it was agreed by the whole court, M» 10 J, in
the common picas between Corven and Pym. And for
the defacing thereof, they that build or ere£l the fame
ihall have the a£lion during their lives (as the lady TViche
had in the cafe of the 9 Ed, 4 ; ) and after their deceafes,
.the heir of the deceafed fhall have the a6i:ion. But the
building or eredling of the fepulchre, tomb, or other
monument, ought not to be to the hindrance of the cele-
bration of divine fervice. 3 /«/?. 202.

For of grave ftones (he fays), winding fiieets, coats of
arms, penons, or other enfigns of honour, hanged up
laid or placed in memory of the dead, the property re-
mains in the executors 5 and they may have a6i:ions againft
•fuch as break deface or carry them away, or an appeal of
felony. 3 Infl. no.

But Sir Simt)n Degge fays, he conceives that this muft
be intended, by licence of the bifhop, or confent of the
parfon and churchwardens. Degge P, i. c. 12,
^ And 'Dr Watfon fays, this is to be underftood of fuch
monuments only, as are fet up in the iles belonging to
particular perfons ; or if they are fet up in any other
part of the church, he fuppofes it is to be underftood,
that they were placed there with the incumbent's confent,
Watf. c, 39.

And Dr Gibfon obferving thereupon faith thus : Mo-
numents, coat armour, and other enfigns of honour, fet
"up in memory of the deceafed, may not be removed at
the pleafure of the ordinary or incumbent. On the con-
trary, if either they or any other perfon fhall take away
or deface them, the perfon who fet them up fhall have an
adion againft them during his life, and after his death
the heir of the deceafed fhall have the fame, who (as
they fay) is inheritable to arms, and the like, as to heir
looms ; and it availeth not that they are annexed to the
freehold, tho' that is in the parfon. But this, as he con*
ceives, is to be underftood with one limitation ; If they
were firft fet up with confent of the ordinary : for though
(as my lord Coke fays) tombs fepulchres or monuments
may be crefted for the deceafed in church or chancel in
convenient manner, the ordinary muft be allowed the
proper judge of that conveniency j inafmuch as fuch erec-
ting, as he axldeth, ought not to be to the hindrance of
the celebration of divine fervice. And if they are ere/6led
without confcnt, and upon inquiry and infpection be

Z 3 found

343 Cl)ttttl).

found to the hindrance of divine fervice, he thinks it will
not be denied, that in fuch cafe ihe ordinary hath fuffi-
cient authority to decree a removal, without any danger
of an adion at law. Gz^/ 453, 454.

M. 10 G. Palmer againft the biihop of Exeter. Sir
Thomas Bury fet up his arms in the church of St Da^
vid's in Exeter. The ordinary promotes a fuit in the
fpiritual court, to deface th^ra^ as being fet up without
his con feat. It was moved for a.-prohibition ; on the au-
thorities that adion lies by the heir for defacing the ino*-
nument of his anceftor : But Eyre and fortefcue juftices
faid, the ordinary was judge what ornaments were proper^
and might order the m to be defaced. The fame was af*-
terwards moved in the court of common pleas, and de--
nied there alfo. Str. 576.

For the ordinary is the proper judge about erecEiiing
monuments, or putting up other ornaments in the church :
yet neverthelefs, notwithftanding his allowance, an ap-
peal lies to the metropolitan. As in the cafe of Cart and
Marjh, M. II G. 2. A difpute arofe between the par-
ties, upon crofs petitions exhibited to the archdeacon of
Bedford and commifTary of the bifhop of Lincoln, for
leave to ere£l: a monument againft a pier in Dunftable
church, to the memory of their refpe^^ive anceftors.
And upon allegations given in on both fides, Marfh ap-
pealed to the arches againft the admiftion of Cart's alle-
gation. Upon which Cart moved for a prohibition ; in*
fifting, I. That ornaments are difcretionary only in the
ordinary, and therefore no appeal would lie. Or, 2. If
it did, yet it muft be to the biftiop of Lincoln, and not
to the arches. But the court held, that tho' ornaments
cannot be fet up without the confcnt of the ordinary j
yet it muft be cxercifcd according to a prudent and le-
gal difcretion, which the fupcrior hath a right to look
into and correct ; and therefore the appeal well lay, as it
doth in cafes of granting adminiftration to one, where
there are two in equal degree. And as to its being an
appeal to the arches, it was held, that wherever the ad:
is done by a commiftary, it is confidered as the a6l of the
ordinary nimfelf ; and to him no appeal will lie from his
own adf, and it muft confequently be to the metropo-
litan. So the rule for a prohibition was difcharged*
Sir. 1080. ;

Images. 22. If any fuperftitious pi(Surcs are in a window of

a church or ile, it is not lawful for any to break them,
without licence of the ordinary ; and in Pricket's cafe*

Wray

Cljurcl). 3u

Wray chief juftice bound the offender to the good beha-
viour. Cro. Ja. 366.

23. Befides what hath been obferved in particular, there Other goods aad
are rnany other articles for which no provifion is made °r^^""<^""'
ty any fpecial. law, and therefore muft be referred to the
general power of the churchwardens, with the confent of
the major part of the parifliioners as aforcfaid, and under
the diredlion of the ordinary ; fuch as the ere<51:ing gal-
leries, adding new bells (and of confequence, as it
feemeth, falaries for the ringers), organs, clock, chimes,
king's arms, pulpit cloths, herfe cloth, ruihes or mats,
yeftry furniture, and fuch like.

There are alfo befides thefe, by an ancient conftitutlon
of archbifliop Winchelfea, divers other particulars injoin-
led to be found at the charge of the pariih, which fmce
the reformation are become for the moft part obfolete ;
but neverthelefs, as they do frequently occur in our
books, it may be proper not to pafs them altogether un-
noticed. Which conftitution is thus :

The parljhioners Jhall find at their own charge^ thefe fever al
things following ; a legend^ an antiphonar^ a grail^ a pfalier^
a troper^ an ordinal^ a mijfal^ a manual^ the principal veji-
ment^ with a chefihle^ a dalmatic^ a tunic^ and with a choral
(9pe^ and all its appendages^ a frontal for the great altar ^
with three towels^ three furplices^ one rochet^ a crofs for pro-
ceffions^ crofs for the dead^ a cenfer^ a lanthorn^ an hand-
hell to he carried before the body of Chrift in the vifttation of the
fick^ a pyx for the body of Chrift^ a decent veil for lent^ banners
for the rogations^ a veffel for the hlejfed water ^ an Gfculatory.y
a candlefiick for the taper at Eaflcr, a font with a lock and
key^ the images in the churchy the chief ifnage in the chancel^
the reparation of the body of the church within and without
as well in the images as in the glafs windows^ the repa-
ration of books and vejlments vjhenever they fhall need, Lindw.
251.

Legend'] The book containing lefTons to be read in the
publick fervice, taken out of the holy fcripture, the lives
of faints, the writings of the ancient fathers and other
doctors of the church. Lindw, 25 1 .

Jntiphonar] From cmi contra^ and (pc^v) fonus ; (o called
from the alternate repetition of the pfalm ; one part
thereof being fung by one part of the choir, and the
other part thereof by the other part of the choir : And
it contained not only the antiphonee^ as the word barely
fjgnifics, but alfo the invitatories, hycrns, rcfponforics,

Z 4 verfes ^

3+4- €ft\tU\)

verfes ; cdlci^s ; and whatever was faid or fung in the
choir, called the ieven hours, or breviary, except the
leiToHS. Lindw, 251.

Gra'd] Gradale; ftriftly taken, this fignifieth that
which is fung gradatim after the epiftle : but here it is to
be underftood of that whole book which containeth aH
that was to be fung by the quire at high mafs -, the trafts,
fequences, hallelujahs, the creed, offertory, trifagium,
and the reft ; as alfo the ofHce for fprinkling the holy
water. Lindw, 251.

Pfalter] The book wherein the pfalms are contained,
JLindw, 25 J.

Troper^ This contained the fequences only ; which
were not in all grails. The fequences were devotions
ufed after the epiftle. Liml, 251.

Ordinal^ The book which ordereth the manner of per-
forming divine fervice : and feemeth to be the fame which
was called the pts^ or portuls^ and fometimes portlforlum*
Lind. 251. Johnf. Winch,

Mtjfal] The book which containeth all things pertain-
ing to the faying of mafs. Lind. 251.

Manual] So called a manuy as being requrired to be
conftantly at hand ; and it feemeth to be the fame as the
ritual -y and containeth all things belonging to the mini-
ilration of the facraments and facramentals : alfo the blef-
(Ing of fonts, and other things by the ufe of the church
requiring bcnedidlion : and the whole fervice ufed at pro-r
ceffions, Lind, 251,

Principal ve/lmeni] That is, the beft cope to be worn
on the principal feafts. Lind. 252.

Chefible'] Gafula ; the garment worn by the pried,
next under the cope : which was called alfo the planet.
And it is faid to be fo called, as being a kind of cottage
(as it were), or little houfe j covering him all over,
L'lnd. 252.

Dalmatic] A deacon's garment ; fo called, from being
at firft woven in Dalmatia, Lind. 252. Johnf. JVinch.

Tunic] The fubdcacon's garment, which he ufefh in
ferving the minifter at the mafs. Lind. 252.

Choral cope] Capa in choro : a cope, not fo good as
that to be ufed on fcftivals, but to be worn by the

prieft

Cfjtttc!). 34S

prkft who prefided at the faying or finging the hours.
Johnf •

Jnd all its appendages'] To wit, the amyt, alb, girdle,
Wniple, and Hole. Z.f«i. 252.

Frontal] A fquare piece of linen cloth covering the al-
tar, and hanging down from it j otherwife called a falL

iind. 252.

For the great altar] In honour of the faint to whom
the church is dedicated: which was wont to be placed
in the choir, as in a more folemn part of the church*
XiW. 252.

J^ Tl^ee towels'] Two to be laid upon the altar under the
.corporal 3 and the third for wiping the hands. Lind»
^52.

Three furplices] For the ufe of the three minifters
of the church ; the prieft, deacon, and fubdeacon. Lind.
^52,

Rochet] Rochet is a furplice, fave that it has no
fleeves 5 and was for the clerk who aflifted the priefl
at the mafs ; or for the prieft when he baptized chil-
dren, that his arms might be more at liberty. Lind»

A crofr for the dead] To be laid on the cofEn, as it
feemeth ; or on the corps wfien it was brought to the
church. John/,

Pyx] With a lid or cover. Lind, 252.

Ofculatory] This was a tablet or board, with the pic-
ture of Chrift, the blefTed virgin, or the like; which
the prieft kifled himfelf, and gave to the people for the
fame purpofe, after the confecration was performed, in-
ftead of the ancient kifs of charity. Johnf,

Images] To wit, of Chrift crucified, and of other faints*
Llnd. 253.

The chief image in the chancel] That is, of the faint to
whom the church is dedicated. Lindw. 253.

24. A perfon may give or dedicate goods to god's fer- Who hath tbc
vice in fuch a church, and deliver them into the cuftody Property in the
of the churchwardens, and thereby the property is imme-|J'°j|jhf '^^
iiatcly changed. Degge F, i, c* 12,

And .

346 CDtttCl).

And if a man cred a pew in the church, or hang, up
a bell in the fleeple, they do thereby become church
goods (tho' they are not exprcfly given to the church),
and he may not afterwards remove them ; if he does, the
churchwardens may fue him. Par. Z. <:. 25.

The foil and freehold of the church and churchyard
is in the parfon ; but the fee fimple of the glebe is in
abeyance, i /«/?. 341. And if the walls, windows, or
doors of the church be broken by any perfon, or the trees
in the churchyard be cut down, or grafs there be eatei*
up by a ilranger ; the incumbent of the re<£lory (or his
tenant if they be let) may have his a6lion for the dama'i
ges. fpatf. c. 39.

But the goods of the church do not belong to the in«»
cumbent, but to the parifhioners ; and if they be taken
away, or broken, the churchwardens (hall have their ac-
tion of trefpafs at the common law. fFiatf, c, 39. As
in the cafe o( Buckfal^ T, iij* But whereas it is there
faid, that fuit fhall not be therefore in the fpiritual court ;
alater judgment (E. 18 C. 2.) fays, that tho' the church-
wardens had an action at common law, againft thofe whp
had taken away the bells, yet the more proper remedy
was in the fpiritual court, becaufe at the common law
only damages would be recovered, but the fpiritual court
would decree the reftoring of the thing it felf. i Roll's
Rep, 57. I Sid. 281. Gib/. 206.

By the civil law, the goods belonging to a church are
forbidden to be alienated or pawned, unlefs for the re-
demption of captives, for relief of the poor in time
of great famine and want, or for paying the debts of
the church if a fupply cannot be otherwife raifed, or upon
other cafes of neceflity or great advantage to the church.
And in every alienation, the caufe mull be firft examined,
and the decree of the prelate intervene, with the con-
fent of the whole clergy or chapter, ff^ood Civ. L.
142.

But by the laws of England, the goods belonging to
a church may be alienated ; yet the churchwardens alone
cannot difpofc of them, without the confent of the pa-
rifh : and a gift of fuch jroods by them without the
confent of the fidemen or vcltry is void. ^Vatf, c, 39.

IX. Church rate.

Sate to be made I. Rates for reparation of the church are to be made
at a vcftry mcct- ^y ^hc churchwafdcns, together with the parifhioners af-
»"6' fcmbled,

C!)ttttD* 347

fembied, upon publick notice given in the church. And
the major part of them that appear, fhall bind the parilh :
or if none appear, the churchwardens alone may malce
the rate ; becaufe they, and not the parifhioners, are to
be cited and punifhed, in defe6t of repairs. But the bi-
fnop cannot dire<Sl a commiflion, to rate the parifhioners,
and appoint what each one fhall pay : this muft be done
by the churchwardens and parifhioners ; and the fpiritual
court may inflict fpiritual cenfures till they do. Gibf, 196^
:t Bac, Abr, 373.

But if the rate be illegally impofed, by fuch commif-
Gon from the bifhop, or otherwife, without the parifhi-
oners confent ; yet if it be after afTented to, and confirm-
ed by the major part of the parifhioners, that will make
.it good. IVatf, f. 39.

2. And thefe levies are not chargeable upon the land, ^^^^^I^^^J^f^
•fcut upon the perfon in refpe£t of the land, for the nioreJ"„7.^
equality and indifFerency. Degge P, 1. c. 12.
L And houfes as well as lands are chargeable, and in
/ome places houfes only; as in cities and large towns
where there are only houfes, and no lands to be charged.
jHetL 130. 2 Luiw, 1019.

■ji 3. It hath been faid, that if a perfon. be rated for the ^'j^'J^f *^"*
oniaments of the church, according to his land which he^ates • onefor
hath in the parifh ; a prohibition lieth : becaufe for thefe the fabrkk, and
.he ought to be rated according to his perfonal eflate. ^"°^^^'^^°^*^^'^
2 Roll's Jbr.2gu ""'""*

^ And that if a perfon who is not an inhabitant withift
-the parifh, but hath land there, is rated there for the
ornaments of the church according to his land ; a pro-
hibition lieth : for the inhabitants ought to be rated for
them. M. 20 J, And Yelverton faid, that this had been
.diver-s times fo refolved. 2 Roll's Abr, 291.

And Lindwood fays, that perfons living out of the pa-
rifh, and having lands within the parifh, fhall be rated
for the fame in refpedt of real but not of perfonal charges ;
and for this he refers to feveral pafTages in the civil law,
Lindwn 255.

And Dr Gibfon fays, a rate for the reparation of the
fabrick of the church is real, charging the land, and not
the perfon ; but a rate for ornaments is perfonal, upon
the goods and not upon the land. Thus it was defined
and agreed in the court of king's bench, E, 8 *Jac, where
the tax was, for the reparation of the church, for church
ornaments, and for fexton's wages ; and becaufe the per-
fon ratcdj tho' an occupier of lands in the parifli, dwelt

out

3+8 Cfmttl^;

fOVLt of it> he was declared to be unduly rated in the two
laft articles ; and it was further agreed, that if a tax be
made for the reparation of feats in a church, a foreigner
fhall not be taxed for that, becaufe he hath no beneiit
by them in particular. The fame diftin£lion, as to orna-
ments, was again declared to be good, M, 20 Jac, And
long after thefe, in IFoodward's cafe, in the 4 Ja, 2.
where the matter was, a tax for the bells of the church,
a prohibition was granted, up«>n this fuggeftion, that the
party who prayed it, was not an inhabitant of the parifli^
and the court gave for reafon, becaufe it is a perfonal
charge to which the inhabitants alone are liable, and not
thofe who only occupy in that parifh, and live in another.
Gibf. 196. ?

But upon trial of the fame cafe, upon the prohibitiort,
T. I IV, it was determined, that Woodward^ although
he lived in another parifh, was liable : as will appeafr
afterwards. ■?

And Sir ^imon Degge faith thus : There hath been fome
qucftion made, whether one that holds lands in one pa-
Tifh, and refides in another, may be charged to the or-
naments of the parifh where he doth not refide ; and fome
opinions have been, that foreigners were only chargeable
to the fhell of the church, but not to bells, feats, or or-
naments. But he fays, he conceives the law to be clear
otherwife; and that the foreigner that holds lands in
the parifh, is as much obliged to pay towards the bells
feats and ornaments, as to the repair of the church ;
otherwife there would be great confufion in making fe-
veral levies, the one for the repair of the church, the
other for the ornaments,, which he fays he never obferv-
ed to be pradtifed within his knowledge. And it is pof-
fible that all, or the greateft part of the land in a parifh
may be held by foreigners; and it were unreafonable in
fuch cafe to lay the whole charge upon the inhabitants,
which may be but a poor fhepherd. The reafon alledged
againfl this charge upon the foreigners, is chiefly becaufe
the foreigner hath no benefit by the bells, feats, and or-
naments ; which receives an anfwer in Jeffrey ?> cafe (5 Co.
67.), for there it is refolvcd, that landholders that live
in a foreign parifh, are in judgment of law inhabitants
and parifhioncrs, as well in the parifh where they hold
lands, as where they refide ; and may come to the parifh
meetings, and have votes there as well as others. For
authorities in the cafe, it is clear by the canon law, that
all landholders, whether. they live in the parifl) or out of

> it»

€!)ttWl): 3+9

k, are^ound to contribute. And hciiath fcen (he fays)
a report under the hand of Mr Latchy that it was refolv-
ed in JVillymot\ cafe, H, 6 Ja. and in Chejler^ cafe in
the 10 Ja, that a foreigner that held lands in another pa-
rifh wherein he did not refide, was as much chargeable
to the ancient ornaments of the church, as bells, feats,
and the like, as thofe that lived in the parifli j but that
fuch landholders could not be charged to new bells, or-
gans, or fuch like. And Mr Buljirode ( i Buljir. 20) re-
ports a cafe about the fame time, that the chief jufticc
Fleming and Mr juftice IVilliams were of the fame opi-
nion, and gave this reafon, that the foreigner might
come to the church if he pleafed. Degge P. 1, c,i2.

* And the practice, for the eafe and convenience thereof,
feemeth now generally to go with this latter opinion.

* 4. If a parifh plead a cuftom for it to be laid only for To be charged
kuids, and not for houfes ; or to be laid only for arable T'»^^«H"»^'*y»°*
lands, and to be excufed for their paftures ; or to be laid***

only for their fheep walks, and not for the reft ; the cu-
ftom cannot be good : for by the law, all lands and houfes
are to be equally rated ; and their paying for fome part,
can be no good caufe for the difcharge of the reft. Heti*
130. Latch, 203.

Stratford- JII perfons^ m well religious^ as others what^
foever^ having pojfeffions farms or reniSy which are not of the
glebe or endowment of the churches to he repaired^ living with^
in the parijh or elfewhere^ Jhall be bound to contribute with 'the
rtji of the parijhioners of the aforefaid churches y as often as
Jhall be needfuly to all charges incumbent upon the parijhionersy
concerning their church and the ornaments thereof y by law or
tujlom \ having refpeSi unto the quantity of fuch piffejfions
and rents. JVhereuntOy fo often as Jhall be neceffaryy the ordi*
nary Jhall compel them by ecclefiajiical cenfures and other law-
ful means. Lind. 255.

Which are not of the glebe or endowment of the churches
to be repaired^ Therefore if fuch lands be of the glebe
or endowment of the churches ; he who is tenant of the
lands, ought not to contribute to fuch repairs or orna-
ments. Lindw. 255.

Of the churches to be repaired] From hence it appeareth,
that if there be lands within the parifti belonging to an-
other church, and which are of the glebe or endowment
of fuch other church ; yet they who have fuch lands,
ought to contribute to ^e repairs and ornaments of the

chufCh

350

cimtci).

church of that parifh^ within which parifh fuch lands 64
lie. LM. 255.

fFitb the rejlofthe partjhkners] This Implieth, that they
who live out of the parifh, and have lands w^ithin the pa-
rifh, ought to be rated amongfl the parifhioners of that
parifh where the lands lie. Lind, 255.

Their church'] To wit, the building, repairing, or other
ittflentation thereof. Lind. 255.

Having refpe5f unto the quantity of fuch poffeffions\ Which
ought be eftimated according to the value of the rent.
Lind. 255.
Land lying In 5. If a perfon inhabiteth in one parifh, and hath land

another parifh. ^^ another parifh, which he occupieth himfelf there ; he
{hall be charged for this land, for the reparation of the
church of the parifh in which the land lieth : becaufe he
may come there when he vi^ill, and he is to be charged in
refpea of the land. 2 RqWs Abr, 289.

But a perfon cannot be charged in the parifh where he
inhabiteth, for land which he hath in another parifli, to
the reparation of that church where he inhabiteth ; for
then he might be twice charged : for he may be charged
for this in the parifh where the land lieth. 2 Roll's Ahr.
289.

And therefore the rate fhall be laid upon all lands with-
in the parifh, altho' the occupiers inhabit in another pa-
rifh. Which point v^as firft fully fettled in Jeffrefs cafe,
M, 31 Sc^iEi. [^Co. 66.) v^hereit was alfo refolved (pur-
fuant to the opinion of divers civilians under their hands),
that fuch occupation of land maketh the perfon occupying
a parijhionerj and intitles him to come to the aflemblies of
the fame parifh, when they meet together for fuch pur-
pofes ; and it was faid, that if fuch lands were not liable
to be rated, a perfon v/ho inhabiteth in one parifh might
occupy the greateft part of the lands in another parifh,
and fo churches might come to ruin. And altho', fevcn
years after this, in the cafe of Paget and Crumpion (Cro,
EL 659.) a prohibition vv^as obtained, upon a furmife,
that the perfon rated lived not in the parifh ; yet upon
fight of this precedent, Popham chief juftice changed hia
opinion, and it was refolved by him and the v^^hole court,
that a confultation fhould be granted : and now (lord
Coke fays) this is generally allowed and received for law.
Gihf. 196.

T. I ly. Woodward and Makepeace. Woodward who
lived in the diocefc of Litchfield and Coventry, but oc-
cupied

Cljttttl)^ 35 ^

impied lands in the parifli of D. in the dioccfe of Peter-
borough, was in the faid parifh of D. taxed in refped of
his land, as an inhabitant, towards a rate for new calling
of the bells ; and becaufe he refufed to pay, was cited in-
tp the court of the bifliop of Peterborough, and libelled
sig^inft for this matter. And by the court ; this is not a
c;iiting out of the diocefe, within the ftatute of the 32 if.
S. £. 9. for he is an inhabitant where he occupies the
land, as well as where he perfonally refides : Secondly,
that aitho' he doth not perfonally live in the parifh, yet
by having lands in his hands he is taxable : And whereas
it was pretended, that the bells were but ornaments, it
ijras held, that they were more than mere ornaments 5
that they were as necefiary as the fteeple, which is of no
ufe without the bells; and Holt chief juftice faid. If he
be an inhabitant as to the church, which is confefTed,
how can he not be an inhabitant as to the ornaments of
the church ? i SalL 164.

6. Where fuch lands are in farm : not the leflbr, but Tenant to be
the tenant (hall pay. For (as it was determined in Jeffrey's ^g'g^^,*'*^ ^
cafe before cited) there is an inhabitant and parifhioner

who may be charged ; and the receipt of the rent doth
not make the leflbr a parifliioner. And fo it was refolved
in the 4 /F. (4 Mod. 148.) where a libel was in the fpi-
ritual court, for not paying a rate ; and the fuggeftion in
order to a prohibition was, that the lands were in the
occupation of his tenant, and himfelf was not a pa-
rifhioner ; and it was held to be^a good fuggeflion, and
that the tenant fhould be charged, and not the owner,
Giif, 197.

7. It is faid, that the patron of a church, as in right in what cafe tfac
of the founder, may prefcribe, that in refpe£t of the foun- founder of :i
dation, he and his tenants have been freed from the charge l^^^tS^^

of repairing the church. Degge P. i. c. 12.

8. The rectory, or vicarage which is derived out of it, Re£lory how far
are not chargeable to the repair of the body of the church, exempted.
fteeple, publick chapels, or ornaments ; being at the whole

charge of repairing the chancel. Degge P. i. c, 12.

But an impropriator of a re£lory or parfonage, tho'
bound to repair the chancel, is alfo bound to contribute
to. the reparations of the church, in cafe he hath lands in
tjie, parifh which are not parcel of the re<5tory. This was
adjudged by the whole court in ferjcant Davie's cafe,
without any queftion made of it. Giif. 197.

9. The inhabitants of a precinct where is a chapel, tho' Inhabitants of a
it is a parochial chapel, and tho' they do repair that cha- chapelry how far

pel, "'"^^''^-

35 i CDttrcD:

pel, are neverthelefs of common right contributory to the
repairs of the mother church. If they have feats at the
mother church, to go thither when they pleafe, or re-
ceive facraments, or facramentals, or marry, chriften, or
bury at it, there can be no pretence for a difcharge.
Nor can any thing fupport that plea, but that they have
time out of mind been difcharged (which alfo is boubted
whether it be of it felf a full difcharge) ; or that in con-
fideration thereof, they have paid fo much to the repair
of the church, or the wall of the churchyard, or the
keeping of a bell, or the like compofitions (which are
clearly a difcharge). Gibf. 197.

Dr Godolphin fays, it is contrary to common right,
that they who have a chapel of eafe in a village, fhould
be difcharged of repairing the mother church ; for it may
be that the church, being built with ftone, may not need
any reparation within the memory of man : and yet that
doth not difcharge them, without fome fpecial caufe of
difcharge (hewed. God, 153.
Hall of a com- lO* '^^^ ^^^^ ^^ ^ company being rated to the repairs
pany. of a church, the fpiritual court in cafe of non-payment

may proceed againft the mafter and wardens of fuch com-
pany. For the hall is liable to pay, and they cannot
proceed otherwife than by citation ; which may be execu-
ted upon an aggregate corporation ; and therefore the
officers of the corporation are to be cited ; and the rate
paid by them is to be allowed in their accounts. T. Jones

187.

Stall in a market, 11' If a petty chapman take a (landing, for rent to be
paid by him, in the wafte of the manor within the mar-
ket, for two or three hours every market day, to fell his
commodities, the market being holden there one day
every week, but he inhabiteth in another pari(h ; he may
not be rated to the reparation of the church for this (land-
ing. 2 RoWs Abr. 289.
Manner of laying i^- An order and direction fet down by Dr King, Dr
tbc aflcflmeijt, Lcwcn, Dr Lynfey, Dr Hoane, Dr Sweitc, DrStevi^ard,
and others, do<Slors of the civil law, to the number of
thirteen in all, aflembled together in the common dining
hall of do(Slors commons in London, touching a courfe
to be obfcrved by the aflcflbrs, to their taxations of the
church and walls of the churchyard of Wrotham in Kent;
and to be applied generally, upon occafion of like repara-
tions, to all places in England whatfocver.

(z) Every

Cl^tttClft. 353

(1) Every inhabitant dwelling within the parifb, is
ta be charged according to his ability, whether in land or
living within the fame parifh, or for his goods there j that
i*- to fay, for the beft of them, but not for both.

(2) Every farmer dwelling out of the parifh, and ha-
ving lands and living within the faid arifh in his own
occupation, is to he charged to the value of the fame lands
or living, or elfe to the value of the ftock thereupon 9
even for the beft, but not for both.

(3) Every farmer dwelling out of the parifh, and ha-
ving lands and Hying within the parifh, in the occupation
of any farmer or farmers, is not to be charged ; but the
farmer or farmers thereof are to be charged in particu-
larity, every one according to the value of the land which
h'e occupieth, or according to the flock thereupon 5 even
for the befl, but not for both.

* (4) Every inhabitant and farmer occupying arable land
within the parifh, and feeding his cattle out of the parifh,
is to be charged for the arable lands within the parifh,
aitho' his cattle be fed out of the parifh.

f (5) Every farmer of any mill within the parifh, is to
be charged for that mill ; and the owner thereof (if he be
an inhabitant) is to be charged for his hability in the
feme parifh, befides the mill.

(6) Every owner of lands tenements copyholds or other
hereditaments, inhabiting within the parifh, is to be taxed
according to his wealth in regard of a parifhioner, altho*
he occupy none of them himfelf.; and his farmer or far-
mers alio are to be taxed for occupying only.

(y) The afTefTors are not to tax themfelves, but to leave
the taxation of them to the refidue of the parifh. God,
append. 10, II.

13. The form of the church rate may be this : Form of the af-

<' We the churchwardens and other parifhioners of the ^

*' parifh of in the county of -; « and diocefe

" of whofe names are hereunto fubfcribed, do

'' hereby this day of in the year ■ at

«< our veflry meeting for that purpofe afTembled, rate and

*' tax all and every the inhabitants and parifhioners of

*' the parifh aforefaid, here under mentioned, for andl

" towards the repairs of the church of the faid parifb for

*' this prefent year, the feveral fums following : viz.

Vol. I. A a A. B.

3^4-

€t)nu%

A. B.
C. D
E. F.

And fo on.

1 s d

I 2 O
030
026

C D c ^^^rchwardens,

E. F,
G

I. K. .
&c. J

^ 1

Parifhioners.

Appea) againft
the afieirment.

Levying the af-
fsfTment.

14. And if any perfon find hlmfelf aggrieved at the in-
equality of any fuch afTefFnient, his appeal is to the ec-
ckfiailical judge, who is to fee right done. Degge P, i.
c. 12.

15. And if any of the parifhioners refufe to pay their
rates, being demanded by the churchwardens, they are ta
be fued for, and to be recovered in the ecclefiaftical courts,
and not eHewhere. Degge P, i. c, 12.

For the cognizance of rates made for the reparation of
churches and churchyards, belongs to the fpiritual court.
This is in confequence of the foregoing ftatute of the 13
Ezi. I. concerning repairs as of fpiritual cognifance ; inaf-
m^uch as^th^ right of judging of rates, and the inforcing
of them, is of abfolutc neceflity to render the ftatute cf-
fe6lual. Giif. 195,

Purfuant to this general dodlrlne, prohibitions have on
nwLny occafions been denied, or confultations granted, by
the temporal courts. As in the cafe oi Paget and Crump"
ton (Cro. EL 659.); where it was moved, that they of
the fpiritual court would try the quantity of the land (the
tax being according to the rate of their land, and the per^
fon pretending that he was taxed for more land than he
really had) and it was alled^cd, that this was always tri-
able at the common law; the rcfolution of the court was^
that the principal being fuablc in the fpiritual court, the
circumftanccs concerning it arc inquirablc and triable
there alfo : and a confultation was awarded. So alfo
where it was faggefted in order to a prohibition, that the
fends were over-rated ; and that the cuftom of the parifh
was, not to be rated according to lar/ds and houfcs, but
according to fhecp walks : the court declared, as to the
ftrft fuggcftion, that it W^ ^oi material s bccaufe rates
2 lE>cing

€l)nu% 355

being to be propoftioned to the value of the land, the va-
, luing of the land muft properly belong to the fpiritual
court : And as to the fecond, it was faid by Haughton
4 (but not finally relolved by the court) that of common
right, the houfe and all the lands are chargeable to the
reparation of the church 5 and that cuftoms, in prejudice
of fuch reparations, are void ; as, at another time, the
difcharge by cuftom of goo acres of v^^ood, from payment
of church rates, was declared to be a cuftom againft law.
Again, in the cafe of Longmor^ . and Churchyard^ (Latch
217.) where the fuggeftion was, that by cuftom the rate
ought to be in proportion to the king's tax, and that the
party was rated above that proportion ; Bulftrode faid,
this was a fpiritual matter, and ought to be tried in the
fpiritual court, unlefs it appeared, that fome proof wrhich
ought to be allowed by the rules of the common law,
had been offered there and difallowed : and in the event,
confultation was awarded by the whole court. So (Poph,
197.) where it was alledged that the rate v/as impofed
jieedlefsly (viz. for cafting new bells, where there were
four before) a prohibition was denied. In like manner
(i Ventr. 308.) where a prohibition was prayed, upon a
furmife that the tax was impofed upon one part of the
parifh, omitting the reft ; the court doubted, in regard it
was not alledged, that they had offered that plea in the
ccclefiaftical court; becaufe reparation of churches is pro-
per for their cognizance. And tho' a prohibition was
granted, that the others might demur, if they thought fit,
yet it was afterwards countermanded : For this may be
properly pleaded in the fpiritual court, and if not allowed,
is caufe of appeal. Gibf, 195.

So if a fuit is inftituted in the ccclefiaftical court for a
church rate, and a cuftom pleaded of a certain fum, or
of fomethijig done, in lieu of the rate, and that plea is
admitted, they may proceed to try that cuftom in the
fame manner as a modus ; but if the cuftom is denied, it
will be a proper ground for a prohibition (by the lord
chancellor Hardivicke) for defect of trial in the ecclefiaf-
tical court, for the trying of the cuftom is the province
of the common law. Tracy Atkyns. , 289.

So if the bounds of the parifl\ come in difpute in the
ccclefiaftical court, that is, if the party afTeflbd aver that
the land for which he is alTelTed lies in another parifti,
and not in the parifh where it is afTefTed ; if the party be
contentious, he may have a prohibition, and try it at
cgmmon Jaw. De^ge P. i. c, 12,

A a a And

356

Arirft in the
church or
church)'ard.

And by the jj G, 2» c 37. it is ena£^ed, that where
there (hall be any difpute, in what parifh or place, im-
proved waftes, and drained and improved marfh lands lie,
and ought to be rated 5 the occupiers of fuch lands, or
houfes built thereon, tithes arifmg therefrom, mines there-
in, and faieable underwoods, fhall be rated to this and
all other parifh rates, within fuch parifh and place as lies
neareft to fuch lands : and if-on application to the officers
of fuch pjirifh or place to have them rated as aforefaid,
any difpute (hall arife, the juftices of the peace at the
next feilions after fuch application made, and after notice
given to the officers of the feveral pariflies and places ad-
joining to fuch lands, and to all others interefted therein,
may hear and determine the fame on the appeal of any
perfon interefted, and may caufe the fame to be equally
aflefTed ; whofe determination therein fhall be final. But
this fhall not determine the boundaries of any parifh or
place, other than for the purpofe of rating fiich lands to
the parochial rates as aforefaid.

And the church rate charged upon quahfs^' is recover-
able before the juflices of the peace, in like manner as
are their tithes.

If the churchwardens defer to make or collect their-
rate, until they are out of their office ; they are deprived
of all legal authority of doing cither : But they may pre-
fent the perfons in arrear, at the eafter vifitation when
they go out of their office; and the judge will caufe juflice
to be done therein. Or their fucceflbrs may profecute
for the fame, i Bac. Ahr, 376.

X. Churches not to he profaned,

I. By the 50 Ed. 3. c. 5. Becaufe th^t complaint is madi
to our lord the king^ hy the clergy of his realm^ that divert
perfons of holy churchy zvhlljl they attend to divine fervices in
churches^ churchyards^ and other places dedicated to god^ he
fundry times taken and arrejhd by authority reyal^ and com-
rnandment of other temporal lords ^ in offence of god and of the
liberties of' holy churchy and alfo in dijlurhance of divine fer-
vices aforefaid : the fame our lord the king will and granteth
and defendeth upon grievous forfeiture^ that none do the fame
fro?n henceforth ; fo that collufton or feigned caufe he not found
in any of the faid perfons of holy church in this behalf

And by the 1 R. 2. c. 15. Becaufe that prelates do com"
plain thcmfelves^ that as well beneficed people of holy churchy as
other ^ be arrejled and drawn out as well of cathedral churches

4tS

CDltttD. 357

tas of other churches arid their churchyards^ and fometlmes
wh'ilft they he intended to divine fer vices ; and fo arrejied and
idrawn outy be hound and brought to prifon^ ngainjl the liberty
vfholy church: it is ordained^ that if any minijier of the kingy
or other y do arreji any per f on of holy church by fuch manner^
and thereof he duly conviB ; he fhall have imprifonmenty and
then be ranfomed at the kings willy and make gree to the par-
ties fo arreJlcd, Provided ahvaySy that the f aid people of hol^
church Jhall not hold them within the churches or fan£iuarieSy
by fraud or collufton in any manner,

IVlnlJl they attend to divine fervices\ And that as well on
the week days, as on fundays and holidays. Watf, c. 34.

Arrejiedl And if any arreft be made contrary to thefe
ftatutes, and the perfon arrefting doth prefently difcharge
the perfon arrefted, upon pretence of ignorance, or the
like ; yet this will not excufe the contempt in making the
arreft. IVatf. c. 34.

By authority royal] That is, in civil cafes only, betwixt
party and party ; but not in cafes criminal : and there-
fore a perfon may be apprehended going to or returning from
divine fervice, by a warrant from a juftice of the peace;
it being for breach of the peace, and for the king : And
fo in the like cafes. JVatf. c. 34.

Liberties of holy church] This was the common law of
the church before ; of which thefe ftatutes are only an
afnrmance. 12 Co. 100. *•

Upon grievous forfeiture] And he that doth offend again ft
the aforefaid ftatutes, may not only be fined in the tempo-
ral court ; but may be excommunicated hy the ecclcfiafti-
cal judge for fo doing, and condemned in cofts. IVatf

<• 34.

Neverthelefs, after all, notwithftanding that the perfon
arrefting is liable to be puniftied for fo doing, yet the ar-
reft (if not on a fanday) is good in law ; fo that if a ref-
cous be made, and thereby any perfon fhall be killed, the
killing is murder. IVatf c, 34.

2. By the 13 Ed. l. ft. 2. c. 6. The king commandeth^ Fairs and mar-
thai from henceforth neither fairs nor markets be kept in church- '^^^'
yards ^ for tJ)e honour of the church,

Othobon. None Jhall hold a market of any things to be
joldy nor prefume to exercife any traffick in cJmrches. Athon.

^37-
Nor in churchyards. lb,

A a 3 3. Lang-

358 Cliurcl).

T«arn>rBj ^, LzTigtcn. Coi.. heard im tht

Om. S8. Tfy Alii— u^

P:^i 4 Cm. 88. TU dmrdr.^ -J taar

■ * J 1

cinu icppw.

Theadii^of pbp in churches feeamh to hxrebeoi
frequent in this and ocker mtians, daring the times of
poperj ; as ^pein €nom the decretal ^piflJe againft them.
At die refoanation, and for fome time after, tfaofe plzys
and interludes wsre rcry cxummoa ; and, being reprcfcn-
tatioQS of the com^tioiis of the monks, and the popifh
clcrgj, wac vny arcrptable to the people. In tl^ time
of arddiilhop Giindal, Aeie were an idle fort of peo-
ple, who fet up hiOs daily, hot efpedallj on holidays, in-
writing to their plays ; by whofe iapuie months god's word
was 'inufauol and tixroed into foofis ; and the archbifhop
BKMcd fecretaiT Cecil foraprodamation to foppceis tbem.
And it appean by this canon, that thb pro&ne nfage was
not tben quite driven out <^ the churdies and church-
yards. GihJ. 191-
P^^^^ ' 5. Can. 8S. Thg ihaiihumJem wr queftmem^ mid their

tJ^/imMb^ JbaHfi^tr mfmfb^ hmfaOSy jv^pers^ dmrth-^la,
dri^^agi^ w maj dber fnfame w^ U he isfi im the tbto-cb
cbapa w cntnhjtTd*

Thdc fire prahihxtiQns do al] refer to the wake, or
leaft Q^ the dedication of churches^ the obicrration cf
whidi, arocHig chriftians, was very ancient, and is parti-
c ' -oinal by the canon law. And in the laws of

1 jDitfsoB&SoLyOfAe^maaaddaptfAelamfs

fema^ one time is, in the pozilies of thofe churches where
the proper fcftiTal of the (aiot is ccfebiated. But the ob-
.' forration of them, howrver piooflj intended, grew r •

dtgiees into great ezceflcs of eating and drinkii^ ar:
other irregularities ; which, by the w^j were at firft in
fome for: indulged to t- ^ \ by Gregory the great,
at this fcaft of the de. , n lieu of dicir (acrifices

-while they were heathens, viz. Aat Aey mi^ht fct up
boodis round the church, and diere fead and entertain
tfacmiclvcs : But die entertainments being forbidden (as
was before obferred) the foicmnity it feS, tho' revived
bv the book of fpons, hath been fince in great meafurv
dtfufed ; and togetiirr with it, the diibrdexs by this canon
bene prohibited. Glhf. 191.

6. Can.

CJjtttCl). 359

6. Can. 88. The churchwardens or qmjlmen^ and their^^^^^^^
ajfiftants^ Jhall fuffer no mujiers to be kept^ in the church cha-
pel or churchyard.

7. If any perfonjhall^ by words only^ quarrel chide or brawl^ Brawling.
in any church or churchyard ; it Jhall be lawful unto the ordi-
nary of the place^ where the fame offence (hall be done^ and
proved by two lawful witneffes^ to fufpend every perfon fo
offending ; if he be a laynian^ froin the entrance of the church ;

and if he be a clerk ^ from the miniflration of his office^ fi^ fi
long time as the faid ordinary fljall think meet according to the
fault. 5 & 6 Ed. 6. c. 4. f. I.

To fufpend every perfon fo offending"] H, i^ Ja. Large
and Alton. A prohibition was prayed upon this ftatute,
becaufe that cojis were given in the fpiritual court : but it
was denied by the court ; the cofts being there for the
expences of the fuit : otherwife, if ic had been for da-
mages. Cro. Ja, 462.

8. If any perfon Jhall fmite or lay any violent hands upon Swiklng.
another^ in any church or churchyard ; then ipfo faSlo every
ferfon fo offending /hall be deemed excommunicate^ and he ex-

■ eluded from the fellow jhip and company of ChriJTs congregation*
5 & 6 Ed. 6. c. 4. f. 2.

Shall fmite or lay any violent hands'] If one be affaulted in
the church, or within a churchyard ; he may not beat
the other, or draw a weapon there, altho' the other
aflaulted him, and it be therefore in his own defence :
for it is a fanclified place, and he may be punifhed for
that by this ftatute. And it is the fame in any of the
king's courts, or within view ot the courts of juftice;
becaufe a force in that cafe is not juftifiable, tho' in a
man's own defence. Cro. Ja. 367. i Haw. 139.

M» I Jn, JVen7nouth and Collins. It was moved to have
a prohibition granted to the ecclefiaftical court, to ftay a
fuit there againft Wenmouth, forbrav/ling in the belfrey,
and ftriking a man there, upon fuggcftion of this ftatute,
and alledging that all ftatutes are conftruable by the com-
mon law, and that Wenmouth came there as mayor to
fupprefs a riot: But the court (Holt chief juftice being
abfent) denied a prohibition, becaufe this offence was
cognizable in the ecclefiaftical court before this ftatute,
ratione loci ; and that the ftatute, tho' it provides a penal-
ty, doth not alter the jurifdidion. L. Raym, 850.

Lay any violent hands] But it hath been holden, that

churchwardens, or perhaps private perfons, who whip

A a 4 boys

360 CDtttcD.

boys for playing in the church, or pull off the hats of thofe
who obftinately refufe to take them off themfelves, dr
gently lay their hands on thofe v^ho difturb the perform-
ance of any part of divine fervice, and turn them out of
the church, are not withift the meaning of this ftatute.
I Haw. I39»

In any church or churchyard^ £. 33 ^/. In Dethkk\
cafe, who ilruck another in St Piiurs churchyard in Lon-
don ; the court were clearly of opinion, that cathedrals as
well as other churches are within the meaning of this fta-
tute. Cro. EL 224. I Leon, 248.

Ipfo faSfo] But notwithftanding that the words of the
ilatute be fo expreffed, that he who fmites another fhall
ipfo fadlo be deemed excommunicate, yet there ought to
be a precedent conviftion at law, which muft be tranf-
mitted to the ordinary, or elfe the excommunication muft
be declared in the fpiritual court upon a proper proof of
the offence there ; for it is implied in every penal law,
that no one {hall incur the penalty thereof, till he be
found guilty upon a lawful trial : alfo it m.uft be intended
in the conftru6tion of this ftatute, that the excommuni-
cation ought to appear judicially, becaufc otherwife there
could be no abfolution. i Haw. 139.

In the cafe of Wilfon and Greaves^ H. 30 G. 2. A pro-
hibition was moved for on this claufe, and the fuggeftian
was, that there ought to have been a previous conviction
at law. But by the court. That is not ncceffary upon
this claufe. It is ftill indeed an offence at common law,
and a man may be indicted for it ; but befides this, he
may be ipfo fa^lo excommunicated by the ordinary. If
there is a conviction at law, the ordinary may ufe it as a
proof of the fa<3: ; but he may proceed without any fuch
previous conviction. And the proceedings of the two
courts being diverfo intuitu^ it is no objection to fay, that
a man will at this rate be twice puniftied for the fame
offence. And this is common in many cafes : for the
temporal courts proceed to punifti ; the ecclefiaftical, to
amend. Burrow. 240.
Drawing a wea- 9* If ^^y per fort fl)all malicioufiy Jirike any perfon with any
pon, weapon^ In any church or churchyard ; or jhall draw any wea-

pon in any church or churchyard., to the intent to Jlrike another
with the fame weapon : he jhall., on conviSiion by verdi£l «/*
twelve men., or by his own confeffion., or by two lawful wit"
nefjes., at the affixes or fffions^ be adjudged to have one of his
ears cut off\ and if he have no earsy he fhall be burned in the

cheek

€l)rttt!), 361

'iiitek tutth a hoi tYbn^ having the htier F^ wherely he may h
ihown and taken foY a fray-frtdker and fighter ; and hefides^ he
Jhall be and Jl and ipfo faSfo excomjfmnicaied as is aforepiiL
5 & 6 Ed. 5. c. 4. f. 3.

Malicioujly'] It is not enough to fay in thfe indictment,
that hey?r«t/f> but it muft be alfo that he did it malicioujly^
Noy 171.

Or Jhall draw any weapon"] If a man take up a ftorte in
the churchyard, and offers to throw it at another ; or
having a hatchet or ax in his hantl, offers to ftrike ano-
ther therewith ; this is not an offence within thefe words :
for thefe are net fuch weapons as may properly be faid to
be drawn^ as a Avord or dagger. JVatJ. c, 34.

To the intent tn Jlike another] j?. 33 Eli%. Penhallo'*s

' cafe. He was indr-.!:ed upon this ftar.ute, for drawing his

dagger in the church :^f B, againft J, S. and it was not faid

to the intent lo fir ike him \ and for this caufe the indid^ment

was adjudged void. Cro. Eliz, 231.

In the year 141 5, which was before this ftatute, the
wives o^ lord Strange ar«d Sir John TruJJ'el^ contending for
precedency of place m the church of St Dunflan in the
eaft in London, their hufbands thereupon, with all their
retinue, engaged in the quarrel, and within the body of
the church fome were killed ?.nd many wounded. For
which profane riot, feveral of the delinquents were com-
mitted, and the church fufpen-ded from the celebration of
any divine office. By procefs in the court chriftian, the
lord Strange and his lady were adjudged to be the criminal
parties, and had this folemn penance impofed upon them
by that exemplary prelate archbilhop Chicheley : the lord
Strange walked bare headed with a wax taper lighted in
his hand, and his lady barefooted, from the church of St
Paul to that of St Dunftan ; which being rehallowed, the
lady with her own hands filled all the church vefTels with
water, and offered to the altar an ornament of the value
of lol, and the lord a piece of filver to the value of 5 1.
Ken. Par, Ant. 560.

10. If a man do break and enter a church in the night, Robbing of
of intent to fleal ; this is burglary ; for the church is the churches,
manfion houfe of almighty god. 3 Infi. 64..

And here, note a diver fity between a fpiritual man of

the church confecrated to the fervicc of god, and goods

dedicated to divine fcrvice, or merely ecclefiaftical ; for

3 laying

3^2 C^tttCft*

hying of violent hands upon a perfon in holy orders,* the
ecclefiaflical court hath conufance ; but for the violent
taking away, or confuming of the ornaments of the
church, or goods dedicated to divine fervice, that court
(lord Coh fays) hath no conufance, for that it is not given
to them ; as for taking away of the bible, the book of
common prayer, the chalice, and the like, or for the
taking away of an image out of the church ; but remedy
muft be taken for thefe at the common law. 2 /«/?. 492.
But Dr IVatfon fays, a libel may be alfo in the fpiritual
court againft the offender, pro falute animje et reforma-
tione morum ; altho' not to recover damages. Watf»

£' 39-

But this mufl be underllood where the offence doth not

amount to felony ; for in that cafe, the fpiritual court
hath no juriCdiillion. Exam, of the Jcheme of ch. power, 90.

In the lent aflizes holden at Leiceftcr, 11 & 12 Ja,
the cafe was, one William Haines had digged up the feve-
ral graves of three men and one woman in the night, and
had taken their winding fheets from their bodies, and
buried them again ; and it was refolved by the juftices at
ferjeants inn in fleet ftreet, that the property of the fheets
remained the owner's, that is, in him who had property
therein, when the dead body was wrapped up therewith,
for the dead body is not capable of it ; and that the taking
thereof was felony. 12 Co, 113.

By the a£t of general pardon of the 20 G. 2. c. 52. all
burglaries and robberies of churches, and ftealing any
plate, utenfils, or goods belonging to the fame, are ex-
cepted out of the faid pardon.
SantlBarr* ^'* Anciently the church and churchyard was a fan£l:u-

ary, and the foundation of abjuration ; for whoever was
not capable of this fandluary, could not have the benefit
of abjuration : and therefore he that committed facrilege,
becaufe he could not have the privilege of fan6liiary, could
not abjure. This abjuration was, when a perfon had
committed felony, and for fafeguard of his life had fled to
the fanftuary of a church or churchyard, and there before
the coroner of that place within forty days had confeffed
the felony, and took an oath for his perpetual banifhment
out of the realm into a foreign country, chufing rather to
lofe his country than his life : But the foreign country
into which he was to be exiled, might not be amongft
Infidels. 3 Injl. 115.

But by the a^: of the 21 Ja. c. 28./ 7. it is enacted,
that no fan6luaryy or privilege of fan^uary^ J})all be admitted

. er allowed in any cafe* By which a£l, fuch abjuration as
was at the common law, founded (as hath been faid) up-
on the privilege of fandluary, is wholly taken away : But

. the abjuration by force of the flatutes of the 35 El, c, i.
and 35 EL c, 2. in the cafe of recufants, remaineth flill;
becaufe fuch abjuration hath no dependency upon any
fan(5luary. 3 /«/?. 115, 116.

And the law was fo favourable for the prefervation of
fandluray, that if the felon had been in prifon for the fe-
lony, and before attainder or conviction had efcaped and
taken fandluary in the church or churchyard, and the
gaolers or others had purfued him, and brought him back
again to prifon; upon his arraignment he might have
pleaded the fame, and fhould have been reftored again
to the fanduary. 3 Inji. 21'j,

XL Church way.

The right to a church way may be claimed and main-

' tained by libel in the fpiritual court. This is fuppofed

' in the feveral reports up6n this head, by the mention of

particular circumftances, without which prohibitions would

not have laid, jlyh Par, 438. Gibf, 293.

A church way may commonly be claimed as a private
way : and upon fuggeftion that it is a highway, a prohi-
bition will be granted ; fo if the fuggeftion prove true,
the right is triable at common law. Gibf, 293. 2 RoWs
Abr, 287. Ayl Par, 438.

Prefcriptton for a church way may be pleaded by any
inhabitant in the fpiritual court. This was done in the
16 Ja. but upon fuggeftion that it had been enjoyed by
• permiffion only, and not as of right, a prohibition was
granted : as it was alfo in a cafe which RoIIe mentions
in the fame year ; when the churchwardens of Bithorne
and Bowe fued for a church way as appertaining to all
the pariftiioners by prefcription. Gibf 293.

Which cafe mentioned by Rolle is thus : if the church-
wardens of a church fue for a way to a church, that they
claim to belong to all the pariftiioners by prefcription ; a
prohibition (hall be granted : for this is temporal, 2 RoWs
Ahr, 287.

Churching of women. See CljUD'-blCtD*

Cljurrlj

364-

Ecclefiaftical
ConftitutioD.

King to be of
the church of
Xngland.

His oath to
maintain it.

Cjiutcf) of Cnglanti.

tt £ ecclefiaftical ftate of England, as it ftandcth
at this day, is divided into two provinces or
archbifhopricks, of Canterbury and York. The arch-
bifiiop of Canterbury is uikd metropoiitan and primate
of all England, and the archbifhop of York.priinate of
England. Each archbifhop hath within his province bi-
Ihops of feveral diocefes. T he archbifhop of Canterbury
hath under him within his province, of ancient founda-
tions, Rochefter bis principal chaplain, London his dean,
Winchefter his chancellor, Norwich, Lincoln, Ely,'
Chichefter, Salifbury, Exeter, Bath and Wells, Wor-
cefter, Coventry and Litchfield, Kerciord, LlandafFe,
St. David's, Bangor, and St. Afaph ; and ix>ur founded
by king Henry the eighth, eretSted out of the ruins of
diffolved monafteries, Gloucefter, Briftol, Peterborough,
and Oxford. The archbifhop of York hath under him
f6ur ; the bifhop of the county palatine of Chefler r.ewly
ere6led by king Henry the eighth and annexed by him to
the irchbifhoprick of York, the county palatine of Dur-
ham, Carlifle, and the ifle of Man annexed to the pro-
vince of York by king Henry the eighth : But a greater
number this archbifhop anciently had, which time hath
taken from him. And every archbifhop and bifhop hath
his dean and chapter. The archbifhop of Canterbury
hath the precedence, next to him the archbifhop of York,
next to him the bifhop of London, [next to him the bi-
fliop of Durham,] and next to him the bifliop of Win-
chefler ; and then all other biftiops of both provinces af-
ter their ancientncfs. Every diocefe is divided into arch-
deaconries ; and every archdeaconry is parted into dean-
ries ; and deanries again into parifhes, towns, and ham-
lets. I Injl, 94.

2. Whoever (hall come to the pofTefTion of the crown
of England, fhall join in communion with the church
of England, as by law eftablifhed. 12^ 13^' ^'2.

/• 3-

3. By the I W, c. 6. Oath fhall be adminiflred to

every king or queen, who fhall fucceed to the imperial
crown of this realm, at their coronation, to be admi-
niftred by one of the archbifhops or bifhops, to be there-
unto appointed by fuch king or queen ; that they will
to the utmoft of their power maintain the laws oi god,

the

C!jurc!j of cnslanu. 365

the true profeflion of the gofpel and proteftant reformed
religion eftablifl:ed by law ; and will preferve unto the
bifhops and clergy of this realm, and to the churches
committed to their charge, all fuch rights and privi-
leges as by law do or fhall appertain unto them, or
iny of them.

And by the 5 Jn. c, 5. The king at his coronation
fhall take and fubfcribe an oath to maintain and preferve
inviolably the Settlement of the church of England, and
the dodtrine, worfhip, difcipline, and government there-s
of, as by law eflablifhed. f. 2.

4. By Can, 3. Whoever fhall affirm, that the church Penalty of der«*
of England by law eftablifhed is not a true and apoftoli--8*''"5^romit,
cal church, teaching and maintaining the do(5trine of
the apoftlcs ; let him be excommunicated ipfo fafto, and
hot reftored but only by the archbifhop after his repen-?
^nce and publick revocation of this his wicked error.

And by Can* 7. Whoever {hall affirm, that the govern-
ment of the church of England under his majefty, by
archbifhops, bifhops, deans, archdeacons, and the reft
that bear office in the fame, is antichriftian, or repug-
nant to the word of god ; let him be excommunicated
ipfo fa£lo, and fo continue until he repent, and publickly
revoke fuch his wicked errors.

And moreover; feditious words, in derogation of the
eftablifhed religion, are indi6table, as tending to a breach
of the peace : as where a perfon faid, *' Your religion is
^' a new religion, preaching is but prating, and prayer
M once a day is more edifying." 1 Haw, 7.

Cl)tttcl)=fcot.

THE church-fcot, cyryc-fceat^ was an oblation for
the firft fruits of corn, payable at maitinmafa.
1 Still. 176.

CDttvtU^

366

CljttrcljiCbarDens,

AN D herein alfo of quejlmen^ fidefmen^ or ajjijiants.
Note, the office of churchwardens, fo far as it
relates to the repairs or other matters concerning the
church, is treated of under the title CljUtdj ; their cog-
nizance of crimes and offences, falleth in under the title
©ifittttiOU ; and other branches of their duty, under di-r
vers other titles refpedlively : here it is treated only con-
cerning their office in general, or fuch other particulars
as do not fall in more properly elfewhere.
Original, !• In the ancient epifcopal fynods^ the bifhops were

wont to fummon divers creditable perfons out of every pa-
rifh, to give information of, and to atteji the diforders of
clergy and people, Thefe were called tejies fynodales y
and were in after times, a kind of impanneled jury, con-
lifting of two three or more perfons in every parifti, who
were upon oath to prefent all hereticks and other irregu-
lar perfons. Ken, Par. Ant. 649.

And thefe in procefs of time became ftanding officers
in feveral places, efpecially in great cities, and frorn,
hence were called fynods-men, and by corruption Jidef?nen :
they are alfo fometimes called quejlmen^ from the nature
of their office, in making inquiry concerning offences.

And thefe fidefmen or queftmen, h^f-Can. 90. are to be
chofen yearly in eafter week, by the minifter and pari-
fhioners (if they can agree), otherwifc to be appointed by
the ordinary of the diocefe.

But for the moft part this whole office is now devolved
upon the churchwardens, together with that other office
which their name more properly importeth, of taking
care of the church and of the gOods thereof, which they
had of very ancient time.
Whoareexemp- 2. All /)^^rx of the realm, by reafon of their dignity,
ted from being are exempted from the office of churchwarden. Glbf^

churchwardens. ^ , ,.

So are all clergymen^ by reafon of their order. Id.

In like manner all parliament mcn^ by reafon of their
privilege. Id.

If an attorney of the king's bench be made a church-
warden of a parifh, he fhall have a writ of privilege out
of the king's bench, fhcwing is privilege to be difcharged
thereof, by reafon of his attendance, in the faid court.
£.146". Felix IVllJon^ being an attorney of the king's

bench.

€l)itrc|)tt)ai;i>en5» 36;

bench, was made churchwarden of Hanwell, and he re-
fufed, agp was fued in the fpiritual court to take upon
him the office ; and a prohibition was granted. , So in
like manner, T. 15 C Mr Barker being chiofen church-
warden of Aldermanbury in London, fuch writ was grant-
ed. 2 Roirs Abr. 272.

M, 21 Ja. Stampe, clerk of the king^s bench y was chofen
churchwarden of Kingfton, and had a writ of privilege to
the fpiritual court, requiring them not to compel him to
take the oath 3 which writ being difobeyed, he had a
prohibition, i Roll. 368.

By the 6 JV, c, 4. Every perfon that {hall ufe and ex-
ercife the art of an apothecary within the city of London
and feven miles thereof, being free of the company of
apothecaries, and who fhall be duly examined of his
fkill in the faid myftery and fhall be approved for the
fame ; fhall, for fo long as he ihall ufe and exercife the
faid art, and no longer, be freed and exempted from ali
parifh offices : and if he fhall be chofen and ele(5l:ed into
any fuch office, or be difquieted or difturbed by reafon
thereof; he (hall, on producing a teflimonial under the
common feal of the faid corporation, of fuch his exami-
nation approbation and freedom, to the perfon by whom
he fhall be fo elected or appointed, or by or before whom
he fhall be fummoned returned or required to ferve or
hold any fuch office, be abfolutely difcharged from the
fame, and fuch nomination eledlion return and appoint^
ment fhall be void and of none efFedt. And al! perfons
that fhall ufe and exercife the faid art of an appothecary
within any other part of the realm, and have been brought
up and ferved in the faid art as apprentices for {^wcn
years according to the flatute of the 5 EL c. 4. fhall be
freed and exempted from all fuch offices within the fe-
veral places where they live, fo long as they fhall ufe and
exercife the faid art, and no longer ; and if any perfon fb
qualified fhall be elected or chofen into any fuch office,
fuch nomination eleflion return and appointment fliall
be void, unlefs he (hall voluntarily confent apd a^ree to
hold the fame. f. 2, 3.

By the I TV. c. 18. commonly called the a£l of tole-
ration, If any perfon dij/e?iting from the church of England^
fhall be chofen or otherwife appointed to bear the office
of churchwarden, or any other parochial office, and fuch
perfon fhall fcruple to take upon him fuch office in re-
gard of the oaths or any other matter or thing required
by the law to be taken or done in refped of fuch office ;

- hxi

368 CDttttDtbatijens*

he fhall and may execute the fame by a fufficiejjt depufy
by him to be provided, that ihall comply with the laws
in that behalf : provided, that the faid deputy be allow-
ed and approved by fuch perfpns and in fuch manner as
fuch officer fhould by law have been allowed and approv-
ed. And evei-y teacher or preacher in holy orders or pre-
tended holy orders, that IS a minifter preacher or teacher
of a congregation, and duly qualified by the faid a(5,
(hall be exempted from being chofen or appointed to
bear the office of churchwarden, or any other parochial
ofiice. f. 7, II.

By the ;o ^ 11 fF, c. 23. All pe^fons who have
profecuted a felon to cpnvi6^ion, are exempted from the
office of churchwarden, jn the pari{h where the offence
was committed. (\ %,

No perfon /(Vi';7g- 014 of tJpe parifi^ although he occu-
pies lands within the p^rifh, may be chofen churchwar-
den ; becaufe he cannot take notice of abfences from
church, nor diforders in it, for the due prefenting of
them.. Oibf. 215.
Chufmg church- 3. By Cm. II 8. The churchvvrardens and fidemen
wardens. ^^\\ )^^ chofen the firft week after eafter, or fomc

week following, according to the dire6i:ion of the or-<
dinary.

And by Can. 89. All churchwardem or quejlmen in every
parijh^ Jhall be chqfen by th^ joint confent of the minijier arid
the parijhioners^ if it may he ; but if they cannot agree upon
fuch a choice^ then the rninijier Jhall chufe one, and the pari-
Jhioners another : and without fuch a joint or feveral choice^
none JJoall take upon them to be churchwardens.

The books of common law interpret this with a limita-^
lion; namely, ifacuftom h9.th not been for the parifhio-
ners to chufe both. In which cafe when two have been cho-
fen by the parifh, on pretence of cuftom, and one by the in-
cumbent on the foot of this canon, and the ecclcfiaftical
judge hath refufed to admit the fwearing more than one
of thofe who have been chofen by the parifti, upon fiir-
mife of fuch cuftom ; mandamuses have been frequently
granted by the temporal courts to fwear the perfon fo
eledled by the parifh : and alfo prohibitions have gone,
in cafes where the fpi ritual court hath attempted to try or
overrule the cuftom, or otherwife to do any thing to the
prejudice of that title. Upon which occafions it hath
been faid, that churchwardens are lay incorporations and
temporal officers ; and that of common rif^ht evciy parifti
©light to chufe their own churchwardens, wiiich right is

not

€i)tm!)tbatiiett5, 369

not to be#dverthrown but by proof of a contrary cuflom ;
and that altho* one is fworn, a writ may go to fwear an-
other in the fame placcj to the end both parties may be
made capable to try the right. Gibf. 215.

For, by Coke chief juftice ; a convocation hath power
to make Conftitutions for ecclefiaftical things or perfonSj
but they ought to be according to the law and cuftom
of the realm : and they cannot make churchwardens that
were eligible to be donative^ without atSt of parliament.
And the canon is to be intended, where the parfon had
nomination of a churchwarden before the making of the
canon. God. 162.

T. 7 Car, A prohibition was granted againft the church-
warden chofen by the parfon of St Magnus nigh London
bridge, by force of the canon ; upon a furmife, that the
parifh hath a cuftom to chufe both churchwardens. 2
Roll's Abr, 287.

And, by Holt chief juftice; In London, generally^
both the churchwardens are appointed by the parifh, L.
Rayrn. 138.

E, 17 Ja. lVarner\ cafe; Warner, one of the church-
wardens of All-Hallows in London, prayed a prohibition ;
for that, whereas by the cuftom of the faid parifh, the
parifhioners ufed every year to ele£i: one of the parifh,
who had born the office of fcavenger^ fidefman, or con-
ftable, to be churchwarden ; and that every year one who
had been fo elecled churchwarden^ was to continue a year
longer, and to be the upper churchwarden, and another
was to be chofen to him, who is called the under church-
warden ; that fuch a choice being made in that parifh of
the faid Warner to be churchwarden^ the parfon notwith-
itanding that eleclion nominated one Carter to be church-
warden, and procured him to be fworn in the ecclefiafti-
cal courtj and denied the faid Warner to be churchwar-
den according to the election of the parifhioners ; and
this by colour of the late canon, that the parfon fhould
have the eleclion of one of the churchwardens : and this;
being againft the cuftom, a prohibition was prayed, and
a precedent fhewn in the common bench, E. 5 "Ja, for
the parifhioners of Walbrook in London, where fuch a
prohibition was granted ; for it being a fpccial cuftom,
the canons cannot alter it, efpecially in London, where
the parfon and churchwardens are a corporation, to pur-
chafe and demife their lands ; and if every parfon might
have election of one churchwarden, without the aiTciit of
the parifhioners, they might be much piejudiced thereby.
Cyq, Ja, 53?.

Vol. L B b But

370 €finttfiVi}muns*

But altho' the greateft part of the parifhes in London
chufe both the churchwardens by cuftom ; yet in all the
new erected parifhes the canon fliall take place (unlefs the
act ot parliament, in virtue of which any church was
ereded, fhall have fpecially provided that the parifhioners
mall chufe both) ; inafmuch as no cujhm can be pleaded in
luch new parifnes. Gihf. 215.

H. 5 G. Catten a.nd Barwick. At a court of delegates.
The cuftom was, for the parfon to appoint one, and the
two old churchwardens the other : but it went no further.
In this cafe the two churchwardens could not agree, fo
, the one prcfcnts Barwick, and the parifhioners at large
chufe Catten. It was infilled for Barwick, that his cafe
was like that of coparceners, where if they difagree, the
ordinary may admit the prefentee of which he will, ex-
cept the eldeft alone prefents. On the other fide it was
faid, that the cafes widely differed y for in the cafe of a
prefentation the ordinary hath a power to refufe, but he
hath not fo in the cafe of churchwardens, for they are
a corporation at common law, and more temporal than
fpiritual officers. And a cafe was cited to have been ad-
judged in the king's bench, where to a mandamus to
fwear in a churchwarden, the ordinary returned that he
was a very unfit perfon ; but a peremptory mandamus
was granted, becaufe the ordinary was not a judge in
that cafe. And the court held, that by this difagree-
ment the cuftom was laid out of the cafe; and then they
muft refort to the canon : under which, Catten being
duly eleded, they decreed for him, with 60 1. cofts.
Sir. 145.

In fome places, the lord of a manner prefcrlbeth for
rhe appointment of churchwardens : and this ihall not be
tried in the ecclefiaftical court, altho' it be a prefcription
of what appertains to a fpiritual thing. God. 153.

E. 3 G. Stutter and Frejion, In the common pleas :
Prohibition was granted to the fpiritual court, where it
was libelled againft the defendant, for not appearing to
take upon him the office of churchwarden, tho' thereunto
appointed by the ordinary. And it was held, that altho' the
parifhioners and parfon ncglc<5l for ever fo long to chufe
churchv/ardens, yet the ordinary hath no jurifdi6lion ;
for churchwardens were a corporation at commoa law,
and they arc different from queftmen who were the crea-
tures of the reformation, and came in by the canon law.
The canons fay, that churchwardens fliall be chofen by
the parfon and parifhioners, and if they difagree, then
2 one

C!)ttrt|)tt)ari)ettS, 37 «

one by the parfon and the other by the pari{hibners j
and otherwife they (hall not be. By the court ; the
proper way is, to take a mandamus out of the king's
bench. Sir. 52.

4, Any perfon ele(n:ed to be churchwarden, and refu- j^^f^j-^j, ^o j^^;
fing to takJe the oath according to law, may be excom-
municated for fuch refufal ; and no prohibition will lie.

Gihf, 216.

jM. 3 G. Cajlle and Richardfon, Libel in the ecclefiaf-
tical court, for not taking upon him the office of chapel-
warden. The defendant pleads, that it is a donative ;
and thereupon moved for a prohibition. And upon de-
bate, the fame was denied ; the whole court being of
opinion, that tho' there was a difference as to the incum-
bent, yet as to the parifh officers there was none ; for
they are the officers of the parifh, and not of the patroa
of the donative. *SVr. 715.

5. Boniface. We do decree ; that laymefi^ when inquiry Oath.
Jhall be made by the prelates and judges ecclefwjlical^ for cor^
reeling the fins and excejfes of fuch as are within their j^^'if-
di^ion^ Jhall be coynpelled (if need be) by fentcnce of excommu^

ni cation^ to take an oath to fpeak the truth.

That ordinaries were impowered- by the laws of the
church, to require an oath of the teftes fynodales^ appears,
not only from this conflitution, but alfo from the body
of the canon law. And the fame pra6^ice of admini-
ftring an oath, appears in the ecclefiaftical records of
our own church ; where it is often entred, that the pre-
fenters were charged upon their confciences, to difcover
whatever they knev/ to want amendment in things and
perfons ; and in procefs of time, articles of inquiry were
delivered to them, upon which to ground their prefent*-
mentfi, Gibf 960.

But as contefts grew between the two jurifdic^ions, ec-
clefiaftical and temporal ; this was charged upon the or-
dinaries and other ecclefiaftical judges as an incroach-
ment, that they inferted divers things in their articles of
vifitation, which were not of fpiritual cognizance; and
that by requiring an oath from the churchwardens to pre-
fent according to thofe articles, they did in confequcnce
require them to take an oath, which by law they could,
not and ought not to perform. Upon this foundation,
prohibitions were applied for and obtained, for removing
thofe matters from the fpiritual to the temporal courts.
Until at length, the contefts of this kind multiplying, and
oaufing great and frequent troubles both to the fpiritual

B b 2 aad

372 Cljttttl^tbatiiens.

and temporal courts ; an oath of a more general form wss
agreed on by the civilians and common lawyers, by
which the churchwardens bound themfelves inftead of
prefenting fuch things as were contained in the book of
articles, to prefent fuch things as to their knowledge were
prefentable by the laws eeclefiaftical of this realm, Gihf,
960.

Which oath of the churchwardens is this : '' You fhall
**^ fwear, truly and faithfully to execute the office of a
*' churchwarden within your parifh, and according to the
*' beft of your fkill and knowledge prefent fuch things and
*' perfons, as to your know^ledge are prefentable by the
*' laws eeclefiaftical of this realm : So help you god, and
" the contents of this book." Gibf. 216.

And the fidefman's oath, agreed upon in like manner
by the civilians and common lawyers, is as follows : " You
*' fhall fwear, that you will be afTiftant to the church-
'' wardens, in the execution of their office, fo far as by
*' law you are bound: So help you god. Gibf. 216.

Which faid oath of the churchwardens, being thus mo-
delled, was allowed and confirmed two feveral times in the
court of king's bench ; once in the 25th, and again in the
29th of king Charles the fecond : before both which judg-
ments, it had been exprefsly declared in the fame court, that
tho' fome things might be inferted in the articles of vifita-
lion, which were not properly of eeclefiaftical cognizance ;
yet if the oath was conceived and tendred in thofc general
terms, the churchwardens could not legally refufe it : in-
almuch as the articles were offered only by way of direc-
tion and charge ; and by the tenor of the oath, the cccle-^
fiaftical laws and not the articles, were now become the
legal rule and meafure of their duty. Gihf. 961.
R^fufing to ad- 5. If the party eleded offer himfelf, and the ecclefiaf-
oa'th. ^^ ^ ^ ^^^^^ j"<^o^ refufe to tender the oath to him ; a mandamus
from the temporal court will be granted. Gibf. 216.

H. 8 ^' 9 JV. K. and Martin Rice. A mandamus was
directed to the archdeacon of St. Afaph, to fwear and ad*
mit a perfon duly clcded by the parifh, according to the
cuftom, to be churchwarden. To which it was returned,
that he was a perfon unfit, being a poor dairyman^ and
the like. And the qucftion was, whether the archdea*
con can refufe to fwear and admit the churchwarden fo
elected, for any caufe whatfoever. And it was refolvcd,
that he hath no fuch power: for the churchwarden is an
officer of the parifh ; and his mifbehaviour will prejudice
them, and not the archdeacgui for he hath not only the
4 cuilodyj

€t^\xuf^votitntn$* 373

ruftody, but alfo the property, of the goods belonging to
the church, and may maintain alliens for them ; and for
that reafon it is an office merely tempoial, and the arch-
deacon is only a minifterial officer. And therefore a pe-
remptory mandamus was granted. L. Raym. 138.

Which fame cafe, as it feemeth, is reported by SalLeld^
under the name of Morgan and the archdeacon of Cardi-
gan, as followeth : Mandamus to the archdeacon, to fwear
a churchwarden, being duly eleftcd. The archdeacon
made this return, that he was a poor dairyman, and a fer-
vant, and unable and unfit to execute the office. And
thereupon a peremptory mandamus was awarded : for the
churchwarden is a temporal officer ; he hath the property
and cuftody of the parifh goods ; and as it is at the peril
of the parifhioners, fo they may chufe and truft whom
they think lit j and the archdeacon hath no power to
^ledi, or controll their ele£i:ion. i SalL 166.

M* II G. K. and Simp/on, Mandamus to the archdea-
con of Colchefter, to fwear Rodney Fane into the office
, of churchwarden. He returns, that before the coming
. of the writ, he received an inhibition from the bifhop of
London, with a Ijgnification that he had taken upon hii^i-
felf to adt in the premiiTes. But by the court. The rcr-
turn is ill. It doth not appear, that the town of Col-
chefter is within the diocefe of the bifhop who inhibits ;
befides, the archdeacon is but a minifterial officer, and is
.obliged to do the aci, whether it be of any validity or not.
And a peremptory mandamus was granted. Sir. 610.

M, II G, K, and White^ To a mandamus directed to
the archdeacon to fwear a churchwarden ; he returned,
that he was not elected. Upon opening which, Mr juf-
tice Fortefcue faid, that it was fettled, and had been of-
ten ruled, that the archdeacon could not judge of the
.election; and therefore this return was ill : Whereupon
a peremptory mandamus was granted. But note (faith
Lord Raymond) it was certainly wrong; for the return
was a good return, and hath often been made to fuch
mandamus, and actions brought upon the return and
tried* Z-. Raym. 1379.

T, II G, K, and Harwood. To a mandamus directed
to the defendant Dr Harwood, as commifTary of the dean
and chapter of St Paul's, commanding him to fwear Wil-
liam Folbigg one of the churchwardens of the parifh of
St Giles, Cripplegate, London ; the defendant returned,
that he was not elected. And it was infifted on the be-
hilf of Folbigg, thbit the return was ill j that the arch-
B b 3 vicucoji^

374 Cijttctl)\l3artjenS-

deacon^ who was only to obey the writ, could not jtidgC
of the election : and therefore upon fuch a return to fuch
a writ, a peremptory mandamus was granted laft Michael-
mafs term, in the cafe of the king againft White. That
the archdeacon could not judge of the qualities of a perfon
chofen by the parifii, was cited H. 8 TV. K. and Kice,
But Raymond chief jufticc, and Reynolds juftice, held
the return to be good* But upon the importunity of the
counfel for Folbigg, and preiling the authority of that
cafe of the king againft White, and no counfel for the
defendant appearing, a rule was made for a peremptory
mandamus unlefs caufe fhewed. And at another day, the
counfel for the defendant coming to fliew caufe againft
the rule, it was difcharged. But the court not being
unanimous, it was ordered to come on again in the pa-
per. But Lord Raymond (who reporteth this cafe) faith,
he never heard that it was ftirred again. But there can
be no doubt (he fays) but fuch return is good. L, Raym*

And the proper diftin6lion, as to this point, feemeth to
be taken in the cafe of ^ and Twitty^ M. i An. Man-
damus to fwear a churchwarden, fuggefting that he was
duly ele^ed. The return was, that he was not duly defied.
It was objc(£led^ that this was not a good return. But by
Holt chief juftice : Where the writ is, to fwear one duly
elcSfed^ there a return that he was mi duly ele£ied^ is a
good return, for it is an anfwer to the writ ; but where it
is to fwear one chcfen churchwarden, there a return that
be is not duly cholen is naught, bccaufe it is out of the
writ and evafive. i Salk, 433.

H> J<) G. 2. Hubbard and Sir Henry Petirice, To a
mandamus to fwear the plaintiff churchwarden of Hefton
in Middlefcx, the defendant returned, that he was not
duly elected. And in the courfc of the trial, the queftion
was, where the common right of chufuig churchwardens
refts. The pLjntiff infiftcd, it was in the parifhioners at
large as to both the churchwardens, and would therefore
have left it upon the defendant, to fhew a cuftom or right
in the parfon to name one. The defendant on the con-
trary infiilcd, that of common right it was in the parfon
and parifhioners, and therefore it lay upon the plaintiff to
prove a cuftom in the parifhioners to chufe both. And
of this opinion was Lee chief juftice, and that tho' there
are fome di6tums to the contrary, yet they had ntver
been re<;arded. The plaintifF therefore went on to prove
a tultom to chufc both by the parifhioners, but failed in

iti

Cljttrcijtbatnens* 375

it ; it appearing, that tho' the parfon had generally left it
to the pariftiioners, yet he had fometimes interfered. Lee
chief juftice likewife held, that a curate flood in the place
of the parfon, for the purpofe of nominating one church-
warden. iS/r. 1246.

7. The churchwardens are fo far incorporated by law, Churchwaracns ;
as to fue for the goods of the church, and to brino; ^Lucor^o'^&tion.
action of trefpafs for them ; and alfo to purchafe goods

for the ufe of the parifh ; but they are not a corporation
in fuch fort as to purchafe lands, or take by grant 5 ex-
cept in London, where they are a corporation for thofc
purpofes alfo. Gihf. 215.

And therefore, if any one give land to the parifh, for
the ufe of the church, it mufl not be to the churchwar-
dens and their fuccefTors, but it fhould be to feofFees in
trufl to the ufe intended ; which muft from time to time
be renewed, as the truflees die away. Gibf. 215.

And altho' the churchwardens may have their a6lion
for the goods of the parifh, yet they cannot difpofe of
them without the confent of the parifh ; and a gift of
fuch goods by them without the confent of the fidemen
or veftry, is void. IVatf, c, 39. i Roll's Mr. 393.

Upon the like foundation, where an obligation is made
to them and their fuccefTors, and they die ; their execu-
tors fhall have a<9:ion, and not their fuccefTors. Fi?2. Tit.
Churchwardens. D.

8. The perfons who are to make prefentments are now Prerentments,
chiefly the churchwardens ; which is not according to the

rule of the ancient canon law, nor according to the prac-
tice of the church of England before the reformation ;
churchwardens being by their original ofKce, only to take
care of the goods, repairs, and ornaments -of the church ;
for which purpofes, and no other, they have been reputed
a body corporate for many hundred years ; but the bufi-
nefs of prefenting was devolved upon them, by canons
and conltitutions of a more modern date. Gibf, on Vifttat,

59-

The ancient method was, not only for the clergy, but

the body of the people within fuch a diftri61:, to appear at
fynods, or (as we now call them) general vifitations ;
(for what we now call vifitations were really the annual
fynods, the laws of the church by vifitations always mean-
ing vifitations parochial:) and the way was, to felecl a
certain number, at the difcrction of the ordinary, to give
information upon oath concerning the manners of the
people within the diflridt -, which perfons, the rule of
B b 4 the

37^ Ci)ttttl)«3at;i)ettg.

the canon kw upon this head fupjpofes to have heen fe*
le6led, while the fynod was fitting : But afterwards, when
the body of the people began to be excufed from attendance,
it was directed in the citation, that four fix or eight ac«
cording to the proportion of the diftri<Sl, fhould appear to-
gether with the clergy, to reprefent the reft, and to be the
tejies fynodales^ as the canon law elfewhere ftyles them.
But all this while, we find nothing of churchwardens
prefenting, till a little before the reformation ; when
we find the churchwardens began to prefent, either by'
themfelves, or wjth two three or more credible parifhion-
ers joined with them ; and this (as was before obferved)
feenicth evidently to be the original of that office, which
our canons call the office of fidemen or affiftants. Id, 59,
60, 61.
Their dvty as to 9. Every churchwardcn is alfo an overfeer of the poor -y

fundiy temporal ^y ^^C ftatUte of the 43 EL C. 1,

iTngTnderlny ' ' ^he churchwardens, or the conftable, fhall levy the
title ouhis bock, penalty, for keeping an \xn\ic&nk6. alehoufe -, by the 3 C.

They fnall receive the penalties, for hawking y^/r//«cwx
liquors j by the 9 G. 2. c. 23.

Thcv (or the overfecrs of the poor) fhall levy the pc-
* nalty, for felling corn by a wrong meafure ; by the 12 0.

2. /. 8.

They, and the overfeers of the poor, ihall diftribut-e
amongft the poor, foreign cattle imported, forfeited, and
killed ; by the 32 C. 2. c, 2.

They, or the overfeers of the poor, fhall levy the per
nalties relating to weights and meafures ; by the 16 C. a,
19. and 22 C. 2. f. 8.

They fhall carry hawkers aijd pedlars trading without
licence, before a juflice of the peace -, by the 9 ^ 10 IF.
c, 27.

They, or the overfeers of the poor, fhall pay to the
high conflablcs the general county ratc^ out of their money
collc£fcd for the poor ; by the 12 G. 2. c. 29.

They fhall receive the penalties for jcrvants carelefsly
firing houfes ; by the 6 Jn. f. 31.

They fliall receive the penalties for tracing hares in ths
fncw^ and other game penalties ; by the rcfpeclive game
acts.

They fliall join with the conftable and furvcyor of the
ijighways, in chufmg and returning nzw ftoveyors; by
the 3 /r. c. 12.

10. Th^

CljtttcljtbatDensi. 377

10. The rcleafe of one churchwarden is in no cafe a One cburchww-
bar to the aft ion of the other j for what they have, is to Jen "nnot re-
•the ufc of the parifli.

T, 7 Ja. Starkey and Berton. In prohibition: The cafe
was ; two churchwardens fue in the fpiritual court, for a
levy towards the reparation of their church, and had a
Centence to recover, and cofts afTefled j the one releafeth,
and the other fues for the cofts, and there this releafe was
pleaded, and difallowed. Whereupon he prays a prohi-
bition ; and all this matter was difclofed in the prohi-
bition ', and the defendant thereupon demurred in law.
And now it was moved, that this releafe by the one, be-
ing in the perfonaity, ftiould difcharge the intire. But
it was refolved by all the court to the contrary; for
churchwardens have nothing but to the ufe of their pa-
rifh, and therefore the corporation confifts in the church-
wardens ; and the one folely cannot releafe, nor give
away the goods of the church ; and the cofts are in the
fame nature, which the one without the other cannot
difcharge. And of that opinion was all the court of
king's bench. Wherefore it was adjudged for the de-
fendant. Cro. Ja, 234.

11. By Can. 89. The churchwardens or queftmen (hall How long they

not continue any longer than one year in that office ; ex- ^^^ continue i«

I 111/- • • 1-1 office,

cept perhaps they be cholen agam m like manner.

For altho' in fome places, there is but one new church-
warden yearly elected, (he who was junior churchwarden
before, being continued of courfe;) yet in that cafe the
books of common law, as well as the canon, fuppofe a
/lew eleftion to be made of both. Gihf, 215.

But by Can. ii8. The office of all churchwardens and
fidemen, fhall be reputed to continue, until the new
churchwardens that (hall fucceed them be fworn.

And altho' a parifti prefcribe to chufe two church*
wardens, and that the perfons fo chofen fhall continue in
that office for two years ; yet the parifh may, notwith>-
ftanding the prefciiption, remove fuch churchwardens at
their pleafure, and chufe new ones : for, as it is faid, the
parifh might fufter great lofs, if the churchwardens fhould
continue fo long in their office contrary to their will ; for
in that time they might wafte all the parifh goods belong-
ing to the church. IVatf. c. 39.

12. Can. 89. Jll churchwardens at the end of their year^ Account*
or within a month after at the mojl^ jhall before the minijler

and the parijhioners, give up a jufl account of fuch money as
they have received, and alfo what Particularly they have be-

Jlowed

378 Cijttrci)»jati>etis.

Jloived h reparations^ and other wife for the ufe of the church*
And lafl ofalU going out of their office^ they Jhall truly deliver
up to the parijhioners whatfoever money or other things^ of right
belonging to the church or parij})^ which rernaineth in their
hands \ that it may he delivered over by them^ t^ the next church-
ivardensy by bill indented^

A jufi account] If the cuftoni of the parifh is, for a cer-
tain number of perfons to have the government thereof,
and the account is given up to them ; the cuftom is good
in law, and the account given to them is a good account*
Gibf lib.

By bill indented] Lindwood, fpealdng of the inventory
of the goods of the church, to be delivered in writing to the
archdeacon, fays, '* it were good that thefe writings fhould
*' be indented, fd that one part might remain with the arch-
*' deacon, and the other with the parifhioners :'* from
whence this branch of the prefent canon feemeth to have
been taken. Gibf 216.

M. 3 W. Styrrop and Stoakes, If money be difburfed

by churchwardens for repairing the churchy or any thing

elfe merely ecclefiaftical ; the fpiritual courts ihall allow

their accounts : But if there be any thing elfe that is an

' agreement between the parifhioners ; the fucceeding

churchwardens may have an aftion of account at law,

and the fpiritual court in fuch cafe hath not juiifdiiSlion.

12 Mod, 9.

AceouT>t when ^3* ^^ ^ churchwarden in any cafe is malicioufly fued

fettled, final, in the fpiritual court for not making up his account, and

is excommunicated, when in fadl it hath been duly madcj,

he may have a prohibition : and alfo an adlion upon the

cafe will lie. Gibf 216. Bunb. 247.

M. 4 G. 2. Snowden and Herring, Where churchwar-
dens have pafTed their accounts at a vcftry, the fpiritual
court fhall not afterwards proceed againft them to account
upon oath. Bunb, 289.

E. y G. 2, JVainwright and Bag/haw. The churchwar-
dens were cited into the court of Litchfield to account :
They pleaded, that they had accounted at the veftry, ac-
cording to lav/ ; which was reje£lcd ; and a prohibition
was granted. For the ordinary is not to take the ac-
count; he can only give a judgment that they do ac-
count; and to what purpofc fhould they be fent back to
thofe, who have taken their account already ? Str. 974.

T. 13 G. 2. Aioius and Rujh. By the court ; The fpi-
ritual court hath no jurifdisf^ion to fettle the churchwar-
dens

CDttrcDiSbatDetis* 379 ^

<5cns accoants. And a prohibition was granted, after
fentence allowing the accounts, and an appeal to the
.arches. Sir, 11 33.

And if the churchwardens have laid out the parifh
money imprudently and improvidently ; yet if it be truly
and honeftly laid out, they muft be reimburfed again : and
the parifliioners can have no remedy herein, unlefs fome
fraud or deceit be proved againft them ; becaufe the pa-
rifh have made them their truftecs. But if they be going
on in an expenfive way, the parifhioners may complain
to the ordinary, in order to give a check to them, or to
procure (Dr Gibfon fays) a removal of them from their
office. Gilf. 196.

14. M. 3 G, 2. Dent againft Prudence and Bond. Bcr Cannot bring ae-
fore the delegates. Adjudged, that the churchwardens '-^^^^ after their
JPrudence and Bond could "not cite the defendant Dent ''*'' ^' ^^P^"*^*
jinto the fpiritual court, for non-payment of his church

#ate, after their year was expired ; for they can only fue
in their politick capacity, and cannot inftitute any fuit
after that capacity is gone. It was agreed, that if the
fuit had been begun within their year, they might have
proceeded in it after their year was out, this being ^

of necellity to prevent people from delays in order to wear
Out the year -, but in regard this fuit was not commenced
till the year was out, and no precedents were (hewn to
warrant this fuit, the defendant Dent was difmifTed, Sir,
852. .1 Bat. Jh\' 376.

15. If the churchwardens for the time being, negle£l But their fucccf-
to bring an acSlion for any of the goods of the church fo« muft do iu
taken away ; their fuccefibrs may bring trefpafs for them,

in refpe6tof their office: but then the new churchwardens
muft fay, to the damage of ihe parifhioners^ and not of
ihemfelves ; tho' the old churchwardens, in whofe time the
goods were taken away, might fay either. Waif, c, 39.

And if any of the goods of the church are detained, or
not delivered by the predeceflbr ; the fucceflbr hath an
a£tion againft hint alfo. Gihf. 216.

t6. E. 13 An. Nicholfon and Majlers. On a bill in Yet they may be
chancery againft ninety pariftiioners, by the executrix of ^^^'<^ved in tqui*
one of the churchv/ardens of IVoodford,^ to be reimburfed ^^*
money laid out by the teftator as churchwarden, for re-
building the fteeple of the church ; it was objeded, that
this matter was proper for the ccclefiaftical court, and not
for this court. But by Harcourt chancellor, the plaintiff
is proper for relief in this court, and there are many
precedents ^i the like nature. And it was decreed, that

the

38o CDttttljtbatteng*

the p^-ifhioners fhould reimburfe the plaintiff the money
laid out by her teftator, with cofls of this fuit ; and that
the money fliould be raifed by^'a parifh rate. Vin. Tit,
Ch. wardens. C.

T. 17 18. Radnor ip2ixi{h \n Wales, The churchwar-
dens, as being a corporation for the goods of the parifh,
commenced a fuit, with the confent and by order of the
parifh, concerning a charity for the poor : In which fuit
they mifcarried. And then they brought a bill againft
the fubfequent churchwardens, to be repaid the coils by
them expended ; and had a decree for it. It was proved,
that from time to time the parifh was made acquainted
with what they did ; and the' there was no veflry by prc»
fcription, yet a veflry book, kept for the parifh afts, wa.^
allowed as evidence of their confent. They are the truf^
tees of the parifh ; and the parifhioners ought to contri-
bute, and not lay the burden upon thefe poor people the
churchwardens. And the annual fucceffive churchwar-
dens need not to be made parties, as they are renewed.
By the mailer of the rolls. Vin, Tit. Churchwardens. C.
Their protc^lion 1 7. If an a6lion be brought againfl any churchwardens,
by the law in the ^r perfons called fworn men, executing the office of
their office. churchwarden, for any thing done by virtue of their of-
fice ; they may plead the general ifTue, and give the fpe-
cial matter in evidence: and if a verdi6l is given for them,
or the plaintiff fhall be nonfuit, or difcontinue ; they
fhall have double coils. 7 y. r. 5. 21 J, c, 12,

M. 8 Car, Kerchevall againfl Smith and others. Ac^
tion upon the cafe was brought againft: them; becaufethat
they being churchwardens, prefented the plaintiff falfly
and malicioufly, upon a pretended fame of incontinency.
Upon not guilty, it w^as found for the defendants, and
moved, that they might have double cofls, becaufe they
were troubled and vexed for matter which did concern
their office. But it was refolved, it was not within the
ilatute ; for it is merely ecclcfiaflical ; and the flatute wae
never intended, but where they fhall be vexed concern-
ing temporal matters which they do by virtue of their
office, and not for prcfcntments concerning matters of fame*
CfQ, Car. 285.

Church yard. See CfiUtClj.
Ciftercians. See QiJonaKeilejJf

Citation^

r.8x

caation.

I. A Citation is a judicial adl, whereby the defendant, citation, what.

-/JL by authority of the judge (the plaintiff requeft-
ing it) is commanded to appear, in order to enter into
fuit, at a certain day, in a place where juftice is admi-
^iftred. Confet, 26.

2. The citation ought to contain, i. The name of the Formof aciu-
judge, and his commiflion, if he be delegated : if he is an tio"*
ordinary judge, then the ftyle of the court where he is
judge. 2. The name of him who is to be cited. 3. An
^appointed day and place where he muft appear; which
day ought either to be exprefied particularly to be fuch a
day of the week or month, or elfe only the next court
day (or longer) from the date of the citation : and the
time of appearance ought to be more or lefs, according to
the diftance of the place where they live. 4. The caufe
for which the fuit is to be commenced. 5. The name of
the party, at whofe inftance the citation is obtained.
Confet, 26.

By Can. 120. No biihop, chancellor, archdeacon, of-
ficial, or other ecclefiaftical judge, fhall fuffer any gene-
ral procefTes of quorum nomina to be fent out of his court : ,
except the names of all fuch as thereby are to be cited,
fhall be firft exprefly entred by the hand of the regifter
or his deputy under the faid procefTes ; and the faid pro-
cefTes and names be firfl fubfcribed by the judge, or his
deputy, and his feal thereto affixed.

The rule of the ancient canon law in which cafe was,
that by the general claufe ^idam all] \\\ citations, not
more than three or four perfons fhould be drawn into
judgment ; whofe names (quorum nomina) the perfon
who obtained the citation was particularly to exprefs, that
there might be no room for fraud, in varying the names
at pleafure. Gibf, 1009.

A company in London, rcfufing to pay a church rate
fet upon their hall, the mafter and wardens were cited in-
to the ecclefiaflical court by their Tirnames and names of
baptifm, with the addition of mafter and wardens of the
company of waxchandlers. And upon moving for a pro*-
hibition, becaufe they were cited in their natural capa<-
city, when it fhould have been in their politick capacity^
the court held the citation to be good, becaufe the bodjr
politick could not be cited, and there was no remedy but

382 Crtati'ott.

in this way: and a prohibition was denied. H. 33 & 34
C. 2. Skin, 27.
•By whom to be 3. Otho. Forafmuch as we are given to underfland,
executed. that they who have obtained letters citatory do fend them

by three vile ineiTengers, to the place where the perfon tQ
be cited is faid to inhabit -, which letters two of them do
put up over the altar of the church of that place, or ia
ibme other place there, and the third prefently taketh
them away ; from whence it cometh to pafs, that two of
them afterwards giving their teflimony that they cited him
according to the manner and cuftom of the country, he is
excommunicated or fufpended as contumacious, whereas
indeed he. was not contumacious, nor knew any thing of
the citation : Therefore to take away this moft abomijia-
ble abufe, and other fuch like, we do ordain, that from
henceforth letters citatory in caufes ecclefiaftical fhall not
be fcnt by thofe who obtain them, nor by their mellen-
gers ; but the judge fhall fend them by his ov/n faithful
meflenger, at the moderate expence of the perfon fuing
them out ; or at leafl the citation fliall he directed to the
dean of the deanry [that is, to the rural dean] where the;
party to be cited dwelleth, who at the judge's command-
ment fhall faithfully execute the fame by himfelf or his
certain and trufly mefTengers. Atbon, 63.

Othcb, We do decree, that when the judge fendeth a
fritation againfl any perfon who is abfent ; he fhall com-
mit the execution thereof to the dean of the place, or to
fome perfon certain. Athon. 123.

Stratford, Whereas bifhops and archdeacons, their
officials and other ordinaries, and their commiiFaries,
command primary citations for the correction of offenders
to be executed by redtors, vicars, or parifh priefts j and
it is frequently laid to their charge, that concerning thofe
matters for which the citation is made they perverfely
-^ difclofe the confelTions of the parties cited made privately

unto them, whereby they arc greatly fcandalized, and the
parifhloncrji for the future rtfufe to confcls their fnis unto
them : we do ordain, that primary citations from the fi\id
ordinaries fhall not be fcrved by the rectors or others afore-
faid, but by the oflicials, deans, apparitors, or other mi«
iiifters of the faid ordinaries. And if any fuch primary
citations fhall be comn ittcd to the rectors, vicars, or
priefts ; they fliail not be bound to obey them, but the
jiame and all fubfequent ccnfurcs and proceiles thereupon
<baU be utterly void and of no effect. Liml. 90.

4- By

Crtati'ott. 3B3

4. By the aforefaid conftitutlgn of C^/iw ; the perfon to in what manacf
■whom the citation is direi^ed ihall cjiiigently feek the party to be executed.
to be cited. *

And when he hath found him, he is to (hew to the
party cited the citation under feal, and by virtue thereof
cite him to appear at the time and place appointed : And
It is ufual allb to leave a note w^ith him, exprefiing the
contents thereof, i Ought, 44, 45.

But if it be returned upon the citation that the defen-
dant cannot be found, then the plaintiff's pro6tor peti-
tioneth, that the defendant may be cited perfonally (if he
can), to appear and anfwer the contents of the former
citation ; and if not perfonally, then by any other ways
and means, fo as the party to be cited may come to the
knowledge thereof : and this is that which is called a
citation viis et modh^ or a publick citation, feeing it is
executed either by publick edid:, a copy thereof being
affixed to the doors of the houfe where the defendant
dwells ; or the doors of the parilh church where he inha-
bits, for the fpace of half an hour in the time of divine
fervice ; or by publication in the church in time of divine
fcrvice ; or, as it hath been faid, by the tolling of a bell,
or the founding of a trumpet, or the ere^ing of a banner.
This being done, a certificate muft be made of the pre-
mifl'es, and the citation brought into court ; and if the
party cited appear not, the plaintifPs proctor accufeth his
contumacy (he being firft three times called) hy the crier
of the court), and in penalty of fuch his contumacy re-
quefteth that he may be excommunicate. Confet 34.
I Ought. 49.

But the citation mull be ferved at the door or outflde of
a man's houfe ; for the houfe may not be entred in fuch
^afe without his confent. Lind. 87. Athon. 63.

To this purpofe, by the aforelaid conftitution o(Otho it
is dire^led, that if the perfon to whom the citation is com-
mitted (hall not be able to find the party ; he fhall caufe
the letters to be publickly read and expounded, on the
lord's day, or other folemn day, in the church of that
place where he hath ufually dwelt, during the celebration
of the mafs.

Or publickly in the ftreet (faith Athori)^ if he be hin*
dred from entring the church : otherwife he fhall read the
citation in the church, and leave a copy thereof upon the
altar : and the abfent perfon, by other ways means and
cautions (if any occur) fhall be cited, before he be pro-
ceeded againll as contumacious. Aihon. 65.

38+ crtatroft.

In like manned, by a conftitution of archbifhop Me^
pham ; in certain cafes, they who cannot be perfonally
cited, fhall be cited at their houfe, if they have any at
which they can be fafely cited ; if they cannot be Pafely
cited at their houfe, then in the parifii church where fuch
houfe ftandeth ; or if they have no houfe, then in the
cathedral church of the diocefe, and alfo in the church of
the parifh where the offence was committed (if it can be
fafely done). And in fuch cafes, they (hall be proceeded
againft in the fame manner, as if they had been cited per-
fonally. Lind, 85.
Citing out of the 5* ^7 ^^^ ^^"^^ conftitution, it is ordained, that all
diocefe. ordinary judges of the province do readily aflift one ano-

ther in making citations and executions, and in executing
all lawful mandates.

Yet by the ancient laws of the church, the metropoli-
tan was forbidden to exercife judicial authority in the dio-«
cefe of a comprovincial bifhop, unlefs in cafe of appeal or
vacancy. And therefore when archbifhop Peccham ex-
communicated the bifhop of Hereford for refifling this
concurrent power, and affirming againlt the archbifhop
that he could not exercife any jurifdiclion exclufive of the
bifhop within the bifhop's own diocefe, nor take cogni-
zance of caufes there per querelam ; the archbifhop de-
fended his claim, not upon the common right of a metro-
politan, but upon the peculiar privilege of the church of
Canterbury, that the church of Canterbury enjoyeth fuch
a privilege, that the archbifhop for the time being may
and ought to hear caufes arifing within the diocefes of his
fufFragans, and that in the firfl inflancc. Which privi-
lege probably fprung from the archbilhops of Canterbury
being Jegati nati to the pope. Gibf. 1004.

But now, by the flatutc of the 23 Hen. 8. c. 9. intitled,.
The bill of citations ; Where great numbers of the king'i
fubje£fs^ as well meriy wives ^ fervants^ as other the king's fub-
jeHsy dtvelling in divers diocefes of this realm <?^ England and
Wales, have been at many times calUd by citations and other
procejfes ccmpulfaryy to appear in the arehesy audience^ and
ether high courts of the archbifjops of this realm y far from and
out of the diocefe where they dwell \ and many times to anfwer
to fur mifed and feigned caufes y and fuits of defamationy with-
holding of tithes y and fuch other like caufes and matters^ which
have been fued more for malice end for vexation than for any
jujl caufe of fuit ; and where certificate hath been made by the
fummonery apparatory or any fuch light literate perfony that
the party againji whom any fuch citatim hath been awarded^

hath

cttati'ott. 3 §5

hath hem cited or fummcned^ and thercupfn the fame party fo
certified to be cited or fummmed hath not appeared^ according
t6 the certificate^ the fame party therefore hath been excommunl^
cated, ar at the leaji fufpended from all divine ftrvice-\ and
thereupon before- that he or Jhe could be ahfolved^ Jmth been cc?n'
pelled^ not only to pay the fees of the court zvheJ'eUnt'o he or fim
was fo. called by citation or other pro cefe^ amounting to th(> furrt
of 2S^ or 20 d at the leaJl \ but alfo to pay to the fummonery
apparator^ or other light literate perfon by whom he or fije was
fo certified to- be fummoned^ for every mile being dijlant front
the place zvherd he or Jhe then dwelled^ unto the fame court
whereunto he^ or Jhe was fo cited or ' fummoned to appear^ 2d;
ts the greet charge and impoverijhment of the king's fubje^Sy
and to the great occafion ofmijbehaviour and mifiiving of wives^.
women^ and fervants^ and to the great impairment and dimi-
nution of their good names and ho7tefiics : it is therefore ena5ied^
that no manner of perfon Jhall be frotn henceforth cited or fum^
moned or otherwife called to appear by himfelfor by any procurator^
before any ordinary archdeacon co?nmiJfary official or any other
judge fpiritualy out of the diocefe or peculiar jurifdiSlion zvhere
he Jhall be inhabiting at the time of awarding or going forth of
the fame citation or fummons (except it Jhall be for airj of the-
caufes hereafter written^ that is to fay^ ( i ) for any Jpiritual
offence or caufe committed or omitted by the bijhop^ archdeacon^
commiffary^ official^ or other perfon having fpiriitial jurifdic-^
tion^ or being a fpiritual judge^ or by any other perfon within
the diocefe or other jiirifdiSiion ivhereunto he Jlmll be cited or
otherwife lawfully called to appear and anfwer ; and {2) ex-
cept alfo it Jhall be upon matter or caufe of appeal^ or for other
^ lawful caife^ wherein any party Jhall find himfelf grieved or
wronged by the ordinary or judge of the diocefe or jurifdiSliony
or by any of his fubflitutes officers or miniffers^ after the' matter
Of caufe there fir Jl commenced and begun to be Jhezued unto the
trchbijhop or bijhtfp or any other having peculiar jurifdi^ion^
Wthin wh of e province the diocefe or place peculiar is; or [7^)
in cafe that the bijhop or other immediate^ judge or ordinary
dare not nor will not convent the party to befued before him j
or {^) in cafe that the bijhop of the diocefe or judge of the place ^
within whofe jurifdi^ion or before whom the fuit by this aft
Jhall be commenced and prof ecutid^ be party dire^ly -or indirectly
to the matter 'or caufe of the fame fuit 5 or (5) in cafe that any
bijhop^ or any inferior judgCy having under him jurifdiSiion ifi
his own rt^ht und title ^ or 'by commijfion^ ?nake requeff or in^
jiance to we archhijhop bijhop or other fuperior ordinary 01^
judgCy to take treat examine or determine the matter before him
' V9L. I. C c or

386 Crtati'on.

or his fuhjlltutcs^ and that to be done in cafes only where ths
law civil or canon doth affirm execution offuch requefl or Injlance
of jurlfdlSilon to he lawful or tolerable ; ) upon pain of forfeit
ture, to every perfon by any ordinary commijfary official or fub-

Jiitute by virtue of his office or at the fult of any perfon to be
cited or othcrivife fummoned or called contrary to this a£i^^ of
double damages and cojls^ to be recovered by a£ilon of debt or
upon the cafe^ in any of the kings high courts , or In any other
compete/it temporal court of record ; and upon pain of forfeiture

for every perfon fo fummoned cited or otherwlfe called as afore-

faid to anfwer before any fplrltual judge out of the diocefe or
other jurlfdlSflon where the fald perfon dwelleth^ lol ; half to
the klng^ and half to him that will fue in any of the kings

faid courts, f. i, 2, 3.

Provided always^ that it fhall he lawful to every archbljhop
of this realm to cite any perfon inhabiting In any bljhop's diocefe
within his province^ for caufes of l>erefy ; If the bljhop or other
ordinary Immediate thereunto confent^ or do not his duty in pu"
nlfhment of the fame, f. 4.

Provided alfo^ that this fljall not extend to the prerogative of
the archbljhop of Canterbury, for calling any perfon out of the
diocefe ivhere he inhablteth^ for probate of any tejlament. f. 5.

Provided alfo^ that this a^ fhall not be prejudicial to il>e
archbljhop of York, for probate of tejla?nents lulthln his pro-
vince and jurlfdl^lon^ by reafon of any prerogative, f. 7.

Far from and out of the diocefe'] By reafon of this expref-
fion in the preamble, it was doubted in the 6 Ja. whether
the archblfhop was not at liberty (notwithftanding this
adt) to cite the inhabitants of London and other neigh-
bouring places of the fame diocefe, into his court of
arches ; which would be no more a grievance to the fub-
jedt, than the being cited into the confiftory of London ;
and could not properly be called a citing out of the dio-
cefe, fmce the court of arches is held within the diocefe
of London. But all the juftices of the court of common
pleas held, that the archbifhop is reftrained by this a£l
from citing any inhabitants of London, befidcs his own
peculiars ; becaufe the excufmg the fubjecf^ from travel
and charges was not the only benefit intended by it, but
hlfo the benefit of appeals ; and by diocefe in this ftatute,
was underftood jurifdidion ; and, as to the language of
the preamble, that the enabling parts of ftatut^s are in
many cafes of larger extent than their preambles arc.
Gibf 1005.

• In the next reign, H. 9 Car. In Gobbet*s cafe, the like

pdint came under confidcration' again, and prohibitioft to

i the

Ci'tati'ott* 387

the arches being prayed, the determination was as follows :
Jones faid, that he was informed by Dr Duck, chancel-
lor of London, that there hath been for long time a com-
pofition between the bifhop of London and the archbifhop
of Canterbury, that if any fuit be begun before the arch-
bifhop, it fliall always be permitted by the bilhop of Lon-
don ; fo that it is as it were a general licence, and fo not
fued there but v^th the bifhop's affent ; and for that rea-
fon the archbifhop never makes any vifitation in London
diocefe. And hereupon the prohibition was denied. Gibf,
1005.

But in the cafe of Ford and Weldon^ H, i^ & 16 C. 2.
when the fame compofition was urged in the court of
king's bench, againfl a prohibition to the arches, the
court was divided: Hide chief juftice, and Windham,
againfl the prohibition ; and Twifden and Keyling for it.
Againfl the prohibition it was faid, that the arches is
within the diocefe of London, and that the compofition
amounts to a licence ; and for the prohibition, that Lon-
don is not within the jurifdidlion of the arches, and that
the compofition is taken away by the flatute, iiiafmuch
as no agreement between ordinaries can prejudice the peo-
ple, for whofe benefit the flatute was made. Gibf. 1005.

Tbat.no manner ofperfonjhall be from henceforth cited] But
if a man is cited out of his diocefe, and appears-, and fen-
tence is given, or if he fubmits himfelf to the fuit; he
ftiall have no benefit by this flatute, nor will a prohibition
be granted. Gibf, 1006. Carth, 33.

Out of the diocefe] And that, as it feemeth, whether the
fee be full or vacant. For in the 13 or 14 fa, in the cafe
of one Pickovery it was refolved upon this ftatute, that if
a bifhoprick within the province of Canterbury be void,
and fo the jurifdidion be devolved to the metropolitan;
he mufl hold his court within the inferior diocefe, for
fuch caufes as were by the ecclefiaftical law to be holden
before the inferior ordinary ; and the prothonotarlcs faid,
it had been fo formerly refolved. But a little before this,
in the 1 1 Ja, the contrary was refolved j that is, where
one was cited out of his diocefe before the archbifhop of
Canterbury as guardian of the fpiritualties^ not only prohi-
bition was denied ; but it was further faid, that if he had
been cited before him as metropolita?i, it would have been
granted upon this flatute. Gibf 1006.

Or peculiar jarifdi/^ion] That is, whether they be cited

out of fuch peculiar to the arches, gr before the ordinary

C c 2 within

388 Crtati'ott:

within whofe diocefe the peculiar doth lie. And Cok^
faid, that If a man be fued out of his diocefe, yet if he be
fued within his own proper peculiar, he is not within this
ftatute. Glbf. ioq6.

TVIure he Jhall he ijihahit'mg] H. & Ja, an attorney in the
king's bench was fued in the arches for a legacy ; and,
for that he inhabited in the diocefe of Peterborough, pro-
hibition was prayed and granted ; bccaufe tho' he remain-
ed here in term time, he was properly inhabiting within
the jurifdiction of the biiliop of F.^terborough. Gihf. 1006.
2 Brotvnl. 12.

But, T. 17 C 2. when one was cited into the arch-
deacon of Canterbury's court, for not coming to church
at Biddenden in the county of Kent, and pleaded tliat he
was an inhabitant in the diocefe of Chicheiler, the court
declared, that if a man be cited within the diocefe, tho'*;
he be not an inhabitant there, but only comes there to
trade or otherwnfe, yet this is not within the flatute; and,-
that if it were otherwife, there might be offences commit-
ted within the ecclefiaftical law, which could not be pu-
niihed at all; for men would offend in one county, and.
then remove into another, and fo efcape with impunity.
Gil-f. IC06. Hardr. 421.

But in the cafe of JVeJIcoie and Harding^ E, 15 C, 2.
when the fuit was for tithes in the diocefe of Sarum, where.
they lay, and prohibition was obtained upon this ftatute
bccaufe the defendant inhabited in London ; the court,
upon notice that the fuit was for tithes, granted a con-
fultation, and declared that that cafe w^as not within the
ftatute : tho' the contrary feems to have been agreed, T,
9 Ja. in the cafe oi Jones and Boyer, Gibf. 1006. I Lev.
96. 2 Brownl. 27.

T. I fF. Woodward and Makepeace. Woodward, wh©
lived in the diocefe of Litchfield and Coventry, but occu-
pied lands in the diocefe of Peterborough, was there taxed
in refpe6l of his land, as an inhabitant, towards a rate for
new calling of the bells, and becaufe he refufed to pay,
was cited into the court oi the bifhop of Peterborough,
and libelled againft for this matter. And by the court $
this is not a citing out of the diocefe, for he is an inhabi-
tant where he occupies the land, as well as where he per^
fonally rcfides. i Salk. 164.

M! 1 1 JV. MadAn and Molten. In a declaration \t%
attachment upon prohibition, the cafe was, that the plain-
tiff lived in Nottingham within the province of York,
knd thcff lubtradcd tithes, and then removed into Lin-

coliiftiifC

tolnfliire Within the province of Canterbury. Afterwards
he happened to go to York, and was fued there in the
toiirt of the archbifhop for the fubtraclion aforefaid, and
Jikd a prohibition on the ftatute for citing him out of his
diocefe. But at lail, after debate, a confultation was
Warcle<!, for that the fubtracSiion of tithes is local, and
ty tlie, ftatute of the 32 H. 8. c. 7. rriull: be fued before
th6 ordinary of that place where the wrong was done ;
bthertvifb in ca<es tranhtory, where the allien follows the
perfbri , of the offender : And, as it was argued by the
cbllnfd; ,this !s hot citing out of his diocefe within the
ftatlit^ ; b'eckufe the diocefe where he lives hath not a
ilirif(^id:i6n, arid if he might not be cited in this cafe, the
thin4 ^o\i\(l bfe remedilefs and difpunifhable. So If a pe-
fculikf is In two diocefes,, and a man who dwells in one
oF tliVdiVcefes in the peculiar, is cited to the court of the
beciilii'r held irt the other diocefe ; this is not a citing out
if We dibcefe^ becatife it is within the peculiar. 2 Salk,

T. . 5 jyn, Wthriett and Lloyd. A difference in this ca{e
X^as taken by Holt chief juftlce, wher6 a man of another
dlbcele is takcii ^agranti deliSfo : He faid • where the party
goes into another diocefe, and is commorant there, and
ciDities back cafually into the firft diocefe, in fuch cafe
the. citation cannot be good ; for fuppofe a rhan comes
cafually into the diocefe of London, and commits a crime
there, imd then goes back to the diocefe where he dwells,
and then cafually comes to London again, it feemeth that
he cannot be here cited ; but if he had been cited before
he left London, then that would be flagranti delicto.
Holt's Re^. 605.

Immediate judge or ordinary dare not ^ nor lu III not ^ convent
the pcirty] In archbifhop Parker's regiiler, v/e find the
archbifhop to have put benefices in another diocefe under
fequeftration, by reafon of the negligence of the ordinary -,
but this is an adl only of voluntary jurifdi£lion. And
before the reformation, we find the archbifhop requiring
bifhops to proceed agalnft particular perfons In their dio-
cefes, or fhew caufe why himfelf fhould not proceed,
Cll^/* 1007.

Be party] If the caufe be begun before the archbifliop,
tho' the bifhop or other judge (who was party in the caufe)
dieth whilfl it is depending, and lb the occafion ceafeth
Upon which it was firfl brought before the archbifhop ;
yet he being in poffelTion of it, it fliall not be removed,
Gibf, 1007. <

C c 3 Alah

390 Citation.

Make requejl or inflame to the archhiJhop\ M, ig C, 1^
in the cafe of Boiion and Bolton^ prohibition was prayed
to the arches, for citing out of the diocefe of Worcefter,
and day given to fhew caufe. At the day, the plaintiff in
the arches {hewed letters of requeft from the bifhop of
Worcefter ; to which it was objected, that this ought not
to come in upon motion, but ought to be pleaded ; for
the ftatute fays, they {hall only be admitted where the
civil or canon law doth allow ; and therefore it is a mat-
ter proper to be argued, that the court may be informed
by civilians, whether the law allows it or not in the pre-
fent cafe. But prohibition was denied, in the king's
bench, and in the exchequer ; in both which courts, it
was held fufficient to exhibit the letters of requeft upon
motion, without putting the party to plead. Alfo it hath
been ruled upon this ftatute, that the archdeacon cannot
fend a caufe depending before him, immediately into the
arches ; for that he hath no power to appoint another
court, but only to remit his own court, and to leave it
to the next : For fmce his power was derived from the
bilhop, to whom he is fubordinate ; he muft yield it to
him, of whom he received it. Gibf.iooy, i Lev, 22^*

In cafes only where the law civil or canon doth affirm execu^
tion of fuch requeji or injlance of jurifdiSfion to be lawful^ It
was held by the civilians, in the cafe of Jones and JoneSy
T, 9 Ja, that it was abfolutely in the power of the ordi-*
nary to fend any caufe to the archbi{hop at his will, with-
out afllgning any fpecial reafon ; for which they cited the
authority of divers canonifts. But Hobart, (and, as it
feemeth, the court) faid, that to expound the ftatute
thus, to wit, that the ordinary may at his will and plea-
fure fend the fubjcdl from one end of the kingdom to
another without caufe, was both againft the letter of the
ftatute, and did utterly elude it j that the purpofe of the
law was, to provide for the eafe of the fubjecSt more than
for thejurifdidlion of the ordinar)^, which appears, in that
there is adlion given to the fubjecSl and penalty to the king
for the vexation, but none to the ordinary ; and that this
very claufe fays, it is to be done in cafes only which the
civil or canon law aliowcth ; which would be a vafn re-
ftridlion, if it were left as general as before, that is, if it
were lawful or tolerable in all cafes, without caufe. Gibf,
1007. Hob. 185. 2 Brownl. 27.

For caufes of herefy^ In the cafe of Felling and IVhiJlon^
H, 8 An, which was a caufe of hcrcfy, Dr Felling ap-
pealed

pealed to the delegates from a refufal on the part of the
dean of the arches, to cite Mr Whifton before him, up-
on letters of reqiieft from DrHarwood, commifTary of the
exempt arul peculiar jurifdi^tion of the dean and chapter
of St Paul's. The ground of the dean's refufal was, that
letters of rcqueft from Dr Harwood did not lie before
him, becaufe in a cafe of herefy the bifliop. of the diocefe
hath jurifdiclion in places otherwife exempt v/ithin his
diocefe ; and notwithftanding the ftatute of citations, an
'heretick may be cited to appear before him upon letters
of requeft from the judge of the peculiar ; herefy being
iione of the five cafes, in which a perfon may be cited
out of the diocefe or peculiar jurifdii^ion, within which
he dwells, Gihf, 1007. Comyns, 199.

For probate of any teftament'] In Hughes^ s.Cd.^Q^ M, 1 1 Ja,
where one who dwelt in Somerfetfliire had made his will^
and his executors were libelled againf! in the arches ; it
.was faid by juftice Warburton to have been agreed by all
the juftices, that the exception in this ftatute doth only
. extend to probate of wills ; and prohibition, was awarded.
Gibf. 1C07. GoS. 214.

But in the 24 ^ 25 C 2. where one was cited out of
the diocefe, to anfwer a fuit for a legacy, into the prero-
gative where the will had been proved ; prohibition was
'denied : becaufe there the executor mull give account
and be difcharged. i Fentr. 233.

And by Holt chief juftice, in the cafe of MacMn and
Molton^ E, II W. If a will be proved in the prerogative
court of Canterbury, a fuit upon it for a legacy muft be
in the arches, which is the provincial court, tho' the party
lives in another diocefe. L, Raym. 453.

And in the cafe of Edgworth and Smallridge^ M. 3 G, 2,
where the cafe was, that a prohibition was prayed to a
fuit for a legacy in the arches againft the executor, for
that he was cited out of his diocefe, and it appeared that
the teftator having bona notabilia in feveral diocefes, his
will was proved in the prerogative court of Canterbury ;
for the defendant it was infifted, that the exception of the
probate of wills draws after it neccflarily an exception of
fuits arlfmg upon fuch wills proved ; that the ftatute is
an affirmance of the canon law ; that by the canon law,
a will cannot be proved in the arches, nor can legacies
be fued for in the prerogative court, which is a point
miftaken by the reporters, who fay the legacy muft be
fued for where the will is proved ; both the prerogative

C c 4 and

392 CltatlOtti

apd the arches ^re within the archbiflidp*s jurifcliclion-;
and if the legatee is not faftered to fue in the arches,
he can fue no where. And the court denied the prohibi-
tion. Fitz-Gib. no.

Where two are executors and one of them lives in the
diocefe of London, and the other in one of the peculiars
of the arches ; the fuit againft them, as -executors ihall
be in the arches. Gibf, 1005.

By Can. 94. No dean of the arches-^ nor official of the
iirchbipjop's conftfiory^ nor any judge of the audience^ Jhall in
hh own name^ or in the naine of the archbifiopy either ex of*-
ficio or at the injiance of any party ^ originally cite fummon or
any way compel^ or procure to b£ cited fummoned or cotnpelkd^
any perfon which Jwelkth not within the particular diocefe or
peculiar of the faid archbijhop^ to appear before him or any of
ihem^ fir any caufe or matter whatfoever belonging to ecclefiajli^
cal cognizance^ without the licence of the diocefan firji had and
y ol?tai'ied in that behalf other than in fuch particular cafes

only as are exprefsly excepted and referved in and by a Jiatute
23 H. 8. c. 9. And if any of the faid judges Jhall offend
herein^ he .Jhall for every fuch offence be fufpended from the
cxercife of his office for the fpace of three whole months.

By tlue ancient canon law, the archbifhop of Canter-*
T^ury, altho' not as archbifliop, yet as legate of the pope,
"had a right to cite perfons out ^f any diocefe before hirn
in his court x)f audience, originally, as well as uppn ap-
peal. Gihf 1 008.
Rchirnofthe ^* '^^^ return of the citation is either perfb'nally in

ciution. court by him who executed the fame, who ccrtifieth and

jnaketh oath how and in what manner the defendant was
cited i or elfe it is by authentic certificate, which is a
Icind of folcmn v/riting, drawn or confirmed by fome pub-
lick authority, and ought chiefly to contain the name of
the mandatory or perfon to Vvhom it is directed 3 and the
name of the judge who dlreded the fame, with his pro-
per ftyle and title ; likewife the day and place in which
the defendant was cited, and the caufes for which he is
cited J in tcllimony whereof, fome'authcntical fcal ought
to be put to it, of fomc archdeacon, official, 'con^milTa-
ry, or rural dean j and it ought to exprcfs that they fet
their fcal thereunto, at the fpccial inftigation and requeft
of the mandatory. To all which certificates, in all caufe:?,
as much credit is given, as if the mandatory had perfo-
nally made oath of the execution thereof,

Bui

Ciftattoti. 393

But thefe autheirtic certificates are now Ijut feldom
ufed, unlefs where the mandatory by reafon of the di-
ftaiice cannot -conveniently appear to make oath. Confet
2B. I Ought. 50,51.

Concerning this return of the citation, it is ordained
Ky the afor^fakl' co'nftitution of Otho, that the per/on by
whom the citaiidh -fiy&U he-erecufed^ /hall not omit to certify
to the judge^ what he Jhall have done in the execution
ioereqf.

And by the 'aforefaid conflitution of Othobon : He to
whom the citation Jhqll he committed^ when he hath faithfully
itieicUted ihe fafne^ jhall make certificate thereof^ according tu
the form of Otho' s conflitution aforefaid ', -otherwife no credit
fbctll ht given to 'a titation which Jhall appear to have heefi
otherwife made^ nor Jhall any procefs be dire^ed thereupon fdr
%e p-^fon fo fetid 'to be cited.

And by a cOnftitrrtion of archbifhop Peccham : fVh^i-^
Hsfome rural deaks are defamed for diabolical craft in citations^
^Utng certificates thkreof for money to fraudulent rneji^ wheh
fi4 notice vf the citation is given to ihe party concerned^ eithef
b^fbte Tnakmg the certificate or afterwards^ and fo the innocifit
^s 'condemned \ for the ctcrt of this we do ordain^ that 'no certi-
fScate Jhall he delivered to any perjon^ nor otherwife granted
under the feal of a rural dean^ until the fafne Jhall have been

6'hTttkly read upon fome Jolemn day^ during the folemnities of
I? mafsy in the church where the per Jon cited dwelleth or hath
his moji ifual abode \ adding moreover^ that the p'erfo^ cited
Jhall have fufficient fpace allowed to him^ that he may conve-
mently appear at the time and place appointed : and if in fome
cafes they are fo ftrcntned for time^ that there is no room for
delay ; then the citation being firjl publickly made before wit"
neJJes^ the certificate Jhall be given in ihe church or in Jome
publtck place before credible vAtnejfes ; fo as that the day of the
(itation, and the place where, Jhall be exprejfed in the certifi-
cate. And in no wife Jhall the certificate be made before the
citation. And the dectns rural jhall make oath for their faith*
ful performance hereof^ in the epifcopal fynod every year,
Lindw. %i.

Until the fame jhall have been publickly read] That is,
the certificate j which ought to contain the tenor of
ihe mandate, and the form and manner of the execution
thereof. Lind.'^i,

Upon Jome Jakmn day] That is, fome funday or holiday*
•l^ind, 81.

Puring

394 CltatfOtt.

During the folemmties of the ma/s] Immediately after fte
oiTertory. Lin^- 8i.

In the church where the perfon cited dwelleth] Or parochial
chapel. Lind. 8 1.

Th^t there is no room for delay] That is, for delaying the
certificate till the next high mafs. Lind, 82.

Or infome puhlick place] Which may be nearer than tKe
church i as in a market or fair, or other place of publick
concourfe. Lind. 83.

In fhe epifcopal fynod every year] Lind wood fuppofeth the
reafon of this might be, that new deans were yearly elecf
ted : however the canon fuppofeth, that the bifliop every
year held his fynod. Johnf Pecch, ,^

|i^ 7. By the aforefaid ftatute of the 23 H, 8. c. 9. No

archbifhop, nor bi{hop, ordinary, official, commiflary, or
any other fubftitute or minifler of any of the faid arch-
biihops, bifliops, archdeacons or other having any fpiritual
jurifdi6lion, fhall demand or take of any of the king's

' fubje£ls, any fum of money for the feal of any citation

to be awarded or obtained, than only 3d; upon the
pains and penalties before limited in this a6l, to be in
like form recovered as is aforefaid. f, 6.

Other fees relating to the fame (exclufive of the ftamp
duties) are to be regulated according to the particular
cuftoms of the feveral places.

Clerk of the parifh. See }9atl(lb ClCtft.
Cliiniacks. See Sj^OIiaffetfeS*

CoaDittto?.

IN cafes of any habitual diflemper of the mind, where-
by the incumbent is rcndred uncapablc of the admi-
niftration of his cure, fuch as frenzy, lunacy, and the
like; the laws of the church have provided coadjutors.
Of thefc there are many inllances in the ecclefiaftical
records, both before and fmce the reformation ; and we
iind them given generally to parochial minifters fas moft
numerous), but fometimes alfo to deans, archdeacons,
prebendaries, and the like s and ng doubt they may be

given,

Coani'ttto^ 395

given, in fuch circumftances, at thcdifcretlon of tlie or-
dinary, to any ecclefiaftical perfon, having ecclefiaftical
cure and revenue. Gibf. i^oi, : •-

The powers conveyed are firft, in general terms, th^
©fiice of a coadjutor; and then, in particular, the Jook-
^g after the cure, and receiving of the profits, andrti^e
difcharging of the burdens; with an obligation to be ac-
countable to the ordinary, when called upon. But the
article of looking after the cure feemeth to be a late
claufe ; there beihg no more in the ancient appointments
of this kind, even fince the reformation^ than the admi-
niftration of the revenues ; which therefore exadtly an-;
fwers to the powers which were given to the coadjutors
of bifhops, who were appointed only to take care of the
temporalties. And as there, the fpiritual part was com-
mitted by the metropolitan to a 6ifh6p fufFragan ; fo here
it was committed by the* dio^cefan to a curate duly li-
cenfed. Not but the office of coadjutor to an incumbent
vrzs always committed to a clergyman ; who therefore, if
not engaged in another cure, might be content to take
upon him the fpiritual part alfo, and hav? it accordingly
committed to him by the bifhop : but this was no part of
the office of a coadjutor, as fuch ; which, in the cafe of
prefbyters as well as bifhops, did anciently relate to the
temporalties only. Gihf. 901, 2.

In the reign of queen Elizabeth, the court of wards
had taken upon them to commit the perfon and revenues
of a lunatick incumbent, to a layman who was his near
relation. Againii this, archbifhop Whitgift obje6led, as
an incroachment upon the ecclefiaftical jurifdidlion ; and
proved the charge by divers teftlmonies (to which many
more might have been added) out of the records of Can-
terbury and London ; whereby it appeared, that this had
always been a care belonging to the governors of the
church. And the perfon to whom the cuftody had been
committed, being cited to anfwer the allegations of the
archbifhop, and alledging nothing to the confary, the
court thereupon made the following declaration : " This
*' court hath not any power or jurifdi6lion, to intermed-
*' die or commit the fpiritual or ecclefiaftical livings or
*' pofTeffions of any fpiritual perfon that is lunatick or
*' non compos mentis ; but the fame refteth in the eccle-
*' fiaftical magiftrates, to appoint and difpofc, as for*
*' merly hath been accuftomed. But for his moveable
*' goods, and temporal pofTelnons, the court will further
*' confidcr thereof, and give fuch order as therein fhall

** apper-

396 CoaDltttO^

<« ^^%rtkih." Th puHuance of which idechiration, thi
krchbiftiop c<>ffimitteti the adfninrftratibn of the fpiW-
tual revenues to a clergyman, ringer the ftyle of co-
adjutor ; and <fia afterwai^'s, hf a feparatc inftrum'ent,
commit the cuftbHj^ of the lunatick to the perfon who
hid been apix>intfeU for thfe ^holfe cafe by the cbutt '6if
wards. Gibf 902.

Codicil. See lIMU^*
Gollation. See CSCUCfiee*

Colleges, lay J^ /*^ Enerally, tolleges in the uhivferfity are lay corpo-
corporauoos. Vj rations, altho' the membei-s of thb college may hi

all fpiritual. 2 SdlJ^, 672. ''.','*

But thfe dean and chapter of Chrift-church IH Ditford
is a fpirltua], and not a lay body. Bunb. 209.
Charters granted 2. The uiilverfities from time to time have had amplfe
to the umverfi- privil6ge$ granted to them by fundry charters of the kings
"bT^wiizT ^^ ^^^^ realm. Particularly, divers ancient charters vitrk
granted to the uhiverfity of Oxford, by king; John, king
Henry thfe third, king Edward the firft, and king Eo-
ward the third ; with power of coercion of the contuma-
cious, by imprifonment and expulfion ; and alfo by the
cenfures of excommunication, indulged to them by the
popes of Rome (cfpecially Innocent the fourth), and bjr
the archbiihops of Canterbury the pof)es legates. Thb
univerfity of Cambridge had the like privileges granted t^
them of ancient time ; but moft of their old charters werfe
loft in the wars of king Henry the third, or perifhed ifi
the burnmg of the town in the time of king Richard the
(econd. Which king renewed or granted further privi-
leges to both the univerfities; as did alfo divers other fuc-
cceding princes of this realm. Duck 347, 8.

But divers of the powers and jurifdidtions fo granted
to the univerfities being in law not grantable by charter,
therefore it was ena6tcd by the ftatutc of the 13 Eliz.
c. 29. as followeth :

For the great lave and favout thai ihe quein*s mojl eUtelUnt
inajejly heufeth fcivards hn" highnefs*s unlverfitln of Oxford
und Cambridge, avjfsr the ^rcat zeal and care that the lords

and

CoUegej{* 397

and commons of this prefent parllamerU have, fi^r the, mainUnanu
cf good and godly literature^ and the virtuous education of youth
within either (f the faid univerfities ; and to the intent that
the aniient priviUges liberties, and franchifes of either^ of the
faid univerfities^ heretofore granted ratified and confirmed by.
the queens highnefs and her mofl noble progenitors^ may be.
had in greater ejllmationy and be of the greater foroe. ancf
Jlrengih^ for the better increafe of learnings arJ, th^ further
f^ppr effing of vice; it is enaSiea^ that the- right honour able
Robert earl of Leicefter, now chancellor of the faid univer^
fly of Oxford, and his fucceffors for ever^ and the majieri
and fckolars of the fame univerfity ^Oxford for the time be^
ing, jhall be incorporated and have perpetual fucceffion^ by the
name of the chancellor mafiers and fcholars of the univerfity of
Oxford ; and likewife that the right honourable Sir William
Cecil, knight^ baron ^Burgley, now chancellor of the faid
univerfity of Cambridge, and his fucceffors for ever^ and the,
mafiers and fcholars of the fame univerfity of QzmhndgQ for
the time being, fiiall be incorporated and have perpetual fuccef.
fton, by the name of the chancellor mafiers and fcholars cf thi
univerfity (j/* Cambridge.

And the Utters patents of the queen's highnefs- mofl noble fa"^
ther king Henry the eighth, made and granted to the chancel^,
lor and fcholars of the faid univerfity ^Oxford, hearing date
the firfl day ^ April in the fourteenth year of his rei^ j and^
the letters patents of the queen s majefly that now isy madt
and granted unto the chancellor mafiers and fcholars of the
univerfity of Cambridge, bearing date the tweyity fixth day cf
April in the third year of her reign 3 and alfo all other Utters
patents by any of the progenitors or predec^ffors of our faid,
fovereign lady, made to either cf the faid corporated bodies fei^
verally, or to any of their prcdeceffors, of either cf the faid^
univerfities, by whatforuer name or names the. faid chancellor
mafiers and fcholars of either cf the faid univerfiiieSy in any cf
the faid letters patents have been heretofore named^ Jhall
from henceforth be good cjfe^ual and available in the law,
to all intents conJlruSfions and purpofes, to tJje frefazd now
chancellor mafiers and fcholars of either of the fcid univerJiiieSy
and to their fucceffors for evermore, after and according, to
the form words fentences and true meaning of ever y of the f am. c
Utters patents, as amply fully and largely, as if the fame Ut»^
ttrs patents infei'e recited verbatim in this prefent a^ of par-*,
lianunt.

And the .chancellor mafiers and fcholars of either cf the faid

univerfities, froerafly, and their fucceffors for ever, by the fame.

name of chancellor mafiers and fcholars of either • of the faid

i univerfities

398 Conegeff.

nmverftt'ies of Oxford and Cambridge, /hall and may feve"-^
rally have hold pojfefs enjoy and ufe, to them and to their
JucceJJors for evermore^ all manner of manor Sy lord/hips^ rec^
torieSy parfonageSy landsy tenementSy rents, fervrceSy annuities^
advowfons of churcheSy pojjejftonsy penftonSy portionSy and he^
reditamentSy and all manner of lihertieSy franchifesy immunt^
iieSy quietanceSy and privileges y view of frankpledge y law daysy
and other things whatfoever they be, which either of the f aid
corporated bodies of either of the faid univerfities had held
dcxupied or enjoyedy or of right ought to have had ifed oc^
cupied and enjoyedy at any time before the making of this a£fy
according to the true intent and ineaningy as well of the faid
letters patents made by the faid noble prince king Henry the
eighth y and granted to the chancellor and fcholat's of the uni^
verftty of Oxford y bearing date as is aforefaid ; as of the let-
ters patents of the queen^s majejlyy made and granted unto the
chancellory maflers andfcholars of the univerfity (j/* Cambridge,
hearing date as aforefaid ; and according to the true intent and
weaning of all the other aforefaid letters patents whatfoever ;
and the fame are hereby confirmed to them,

Providedy that this a^ Jhall not extend to the prejiidice or
hurt of the liberties and privileges of right belonging to the mayor
lailiff's and hurgeffes of the town f?/' Cambridge and city of
Oxford ; but that they the faid mayor bailiff's and burgeJeSy
and every of theiUy and their fuccefforsy jhall be and continue
frccy in fuch fort and degree y and enjoy fuch liberties fr-eedoms
and immunitiesy as they Unvfully might have done before the
making of this a£l.

By which bleiTed a£l (as lord Coke calls it), all the

courts, franchifes, privileges, and immunities mentioned

in any letters patents, to either of the faid univerfities,

that they might profper in their ftudy with quietnefs, are

elbblifhed and made good and efe^lual in the law;

^gainft any quo warranto, fcire facias, or other fuits, or

any quarrel, concealment, or other oppofition whatfo-

Jurifdi^Ion ever. 4 Inft, 227. Hale's Hijl. Com. Law. 33.

where one of the 3. But thcy have no jurifdi6tion unlefs the plamtifFor

P*"'«'s»'"="i- defendant is a fcholar or fcrvant of the univerfity, or of

berofiheuDivej. ^^^^ college ; but if either of them is a fcholar, it is then

a matter within their jurifdicStion : but yet, if either of

them is entered into a college by collufion, to avoid a

fult in the king's bench, or to excufe himfelf from town

offices, his privilege fhall not be allowed.

Thus in the cafe of the city of Oxfordy M. I W. • On
an a6lion of debt againft the defendant, a townfman in
Oxford, for rcfufin.g to execute an office in the corpora-
tion ; it was moved, that he being a fcrvant ta Dr Irifh,

might

Coneseg; 399

might have the privilege of the univerfity ; and a charter
was produced, by which it was granted, that the mem-
bers and fervants of the univerfity fhould be fucd in the
vicechancellor's court, and not elfewhere ; and a certifi-
cate from the chancellor, diredted to the chief juftice^
that the defendant was matriculated and regiftred in the
teniverfity : But it appearing to the court, that this was
done two days and no more before he was chofen to this
ofHce, and that he was a painter by trade, and had lived
feveral years in the corporation, and no fcrvant attending
Dr Irifh, the privilege of the univerfity was not allowed.
2 Ventr, 106.

. jT. 3 Car, JVilcocks and BradelL Prohibition, by Wil-
cocks againft Jane Bradell the wife of John Bradell, prin-
cipal oi St Mary-Hall in Oxford, and Chriftian the
daughter of the faid John Bradell, to flay their fuits in
the vicechancellor's court of Oxford : for that whereas
Jane Bradell had libelled againft him in the vicechancel-
ior's court of Oxford, for calling her bawd and old bawd
(which is termed the a£^ion of injury) ; and Chriftian the
daughter had libelled againft him for thefe words fcurv^f
whore and jade^ and that he did ftrike her. For ftaying
of thefe fuits, fentence being given againft him in both,
Wilcocks prays to have prohibitions. And now the agent
for the univerfity moved for a confultatiqn ; and (hewed
the charters of the univerfity in the 14 i^. 2. and 14 //, 8.
whereby is granted unto them, that they may inquire of
all trefpafles, injuries, and of all pleas and quarrels, and
of all other crimes and matters (except pleas of frankte-
nement), where a fcholar or their fervants or minifters is
one of the parties, and that they fhall have cognizance
and corredion thereof, according to their ftatutes and
cuftoms, or according to the law of England, at the
(iifcretion of the chancellor ; fo as the juftices of the
king's bench or of the common bench, or juftices of
affize, fe non intromittant \ and if the fame juftices ftiall
take in hand to inquire, or in any wife to take cogni-
zance or intromit, then upon certificate or notification
of the chancellor of the univerfity or his commiflary,
they fhall fuperfede fuch inquiry or cognizance, and fhall
noti put the party to anfwer before them, but the faid
party fhall be corrc£bed and punifhed before the chancel-
lor or his commifTary only, in form aforefaid ; and that
^hefe charters were confirmed by a6l of parliament in
the 13 is//z. And bccaufe Wilcocks was a fcholar, and
pisiftor Qf arts gf the faid univerfity, it was, prayed that
. . the

40O Colleger.

the caufe might be rem?.nded. And it was much db*
bated at the bar and bencn, for that the parties were wo-
men, which were not any perfons privileged there ; and
the defendant, who is the fcholar, doth not! defire that
privilege, but would oppofe it, and prayeth thefe prohi-^
bitions. But the court agreed, forafmuch as the char-
ters are, that the univerfity fhall have cognizance' o€
thofe pleas, where one o£ the parties- is a fcholar,
I and fo the plaintiffs being thereby inforced to fu9

there, therefore the caufe fhould be remanded. Cro:

Car. 73- .

But if an adlion be brought againft a fcholar and arro-
ther who is not one ; in this cafe the fcholar (another be-
ing joined with him) fhall not have the privilege or be-
nefit of the charter. As in the cafe of fVhite againft ^7-
liam 2ind Robert Lowgher^ i8 ^ 19 EL William Lowghep
appeared and anfvvered, but Robert Lowgher claimed the
privilege of the univerfity of Oxford. But becaufe the
faid Robert was joined with William in the bill, who
was xiot fubjedt to the fame jurifdidlion, therefore the
court ordered procefs to be awarded againil him, to fhew
other caufe why he fhould not anfwep. Gary 79.

Extcndeth not 4* ^' 3 ^^^' Halley^ cafe. In the common pleas.

to freehold. Ejeftment, upon a. Icaie of a mefluage in Oxford-. The
defendant, being principal of Gloucefler Hall in Oxford,
pretended, that he, being a fcholar in Oxford, aiKl a pri-
vileged perfon, ought to be fued before the- vicechancdlor
in Oxford accordii g to their courfe of proceedings therej
according to the cuftom of the univerfity, and according
to the charters of Rich, 2. and Hen. 8. confirmed by par-»
liament. Wherefore he prayed that there might be' a
flay of proceedings in this court ;. and fliewed their charw
ters, that they had cognizance of all fuits, contra£ts, co^*
vcnants, quarrels, except concerning freehold ; and this
being a pcrfonal a£lion, they ought to have cognizance
thereof. And for the univerfity was fhewed an ancient
xccord in this court, in the 22 Ed. i. where a plea of
covenant was brought in the court of the vicechancellor
of the univerfity of O^Cford, by reafon of a contrail made
before that time, wherein was granted unto them, that
they fhould have cognizance of all aiSlions pcrfonal and
centralis ; and this covenant in quefVion was, that ha
fhould enjoy fuch ati houfe in Oxford for a year ; and
bccaufc this court of the common pleas had granted a
a prohibition to flay the proceedings in the faid fuit,
being begun in the couft chriftian before the viccchan«»
. . ccUor,

CDlleffeg* 40 r

ccllor, the record mentioned, that upon the (hewing of
this charter, it appearing, that the a£lion was brought
only upon a contrail, and not for the houfes, therefore a
confultation was granted. And fo it was prayed here,
becaufe this action was but perfonal,. that they might
have cognizance thereof. But all the court denied it,
and affirmed, that the vicechancellor had not anyju-
rifdi^ion, nor might hold plea thereof; for in this ac-
tion he (hall recover pofleflion, and (hall have an habere
facias poiTeflionem, and thereby he that hath a freehold
may be put out of pofTeffion: and it is not like the re-
cord (hewn j for there it is only an adlion of covenant,
wherein the plaintiff (hall recover damages only, and
therefore reafon to grant a procedendo there -, but here
he (hall recover poffeffion, and therefore by their own
rules they ought not to hold cognizance, nor have liberty
to proceed in this cafe. Note, that by this ancient
record it appeareth what are the privileges [it (hould
rather be faid, what were then the privileges] of the faid
univerfity, and the jurifdidion of this court to grant a
prohibition where they proceed in court chriftian in pre-
judice of the common law, without reforting to the chan-
cery. Cro. Car, 87.

H, 35 ^ 36 Car, 2. In the chancery : Stephens and
Berry, The plaintiff exhibits his bill, to be relieved
touching fome lands in Cornwall ; and the defendant,
being head of Exeter college in Oxford, pleads the pri-
vilege of the univerfity, and that he ought to be fued in
the vicechancellor's court in Oxford only. But his plea
was overruled : for that matters of freehold are excepted
out of the patent to the univerfity ; and their court can
at bell have but a lame jurifdidion as to lands in Corn-
wall. I Fern. 212.

H. 35 & 36 C, 2. Draper and Crowther, .A bill was
brought fetting forth a contradl under feal with the
defendant, for making a leafe of certain lands in Mid-
dlefex, and to have execution of the agreement. The
defendant pleaded the privileges of the univerfity, to
proceed in all quarrels in law and equity, except con-
cerning freehold j and concluded to the jurifdi£lion of
the court. But lord keeper Guilford overruled the plea ;
becaufe in this cafe the univerfity cannot fequefter lands
in Middlefex, and fo can give no remedy : and the car-
rying this agreement into execution toucheth the free.*
hold. 2 Feritr. 362,

Vol. I. D d T, 12 An.

402 CoUeses*

Tt t2 An. Aldrich and Stratford, A bill in chancery
being brought, for a difcovery of the perfonal eftate of
Dr Aldrich deceafed, and an injun6>ion granted there-
upon ; the univerfity of Oxford claimed cognizance of
the caufe, for that both plaintiff and defendant were fcho-
lars of the univerfity. Upon hearing counfel feveral
limes, and view of charters, and the ftatute of the 13
El. and precedents, Harcourt lord chancellor ordered the
bill to be difmiffed, and allowed an exclufive cognizance
in equity^ touching chattels^ to the univerfity. Vin, Uni-
verfity. K. 13.
xvhetner the 5' ^' ^ ^^' P^^^^P^ ^"^ Bury, The plaintiff brings

king's courts an ejeclmcnt againft the defendant for the redlory houfe
may interfere, ^f gxcter College in Oxford, and declares upon a de-
TiiecTanYappoim- "^'^^ ^^ ^^'^ ^Y J^^^ Painter, being now made re6tor,
c<j, upon the deprivation of Dr Bury. Upon the general

illue pleaded, the jury find a fpecial verdidt. They find
that Exeier college in Oxford (to the reilors and fcholars
of which the redlory houfe appertaineth) was founded by
Walter Stapleton bifhop of Exeter, for a redlor and a
certain number of fellows : That the re6tor and fellows
are a body politick, incorporated by letters patent of
queen Elizabeth, by the name of re^flor and fellows of
Exeter college in Oxford : They alfo find divers ftatutes
of the college ; they find one which appoints the bifliop
of Exeter and his fuccefTors to be vifitors, but that he
ought not to vifit ex officio but once in five years (unlefs
he be requefled by the re£lor and four of the (even fenior
fellows), and that this vifitation ought not to continue
longer than three days j they find alfo another flatute,
which enables the vifitor to deprive the recStor, if he ob-
tain the concurrent affent of the feven fenior fellows,
in cafe the redtor mifbchavc himfeif ; they find another
flatute whi^h enables the rector to deprive any of the
fellows for incontinency or other offences there fpecified :
The jury find further, that the defendant Dr Bury was
made rcdtor of Exeter college in the year i68g : That
h^, upon the i6th of 06>ober in that year deprived Mr
John Colmcr, one of the fellows, for incontinency :
That John Colmer cntred his appeal with the bifhop of
Exeter, vifitor of the college ; who, after having heard
his appeal, fent his chancellor in March 1690 with him
to the college to rcliorc him : That the redor and the
fcvcn fenior fellows denied to give him admittance : They
find, that the bilhop of Exeter iffued his citation, for
appointing a vifitation the ibthof June following; which

citation

Citation was ferved upon the defendant, then reclor,^b)r
Webber: That the bifhop upon the i6th came to the
college, where he found the gates of the college fliut
againft him, fo that he could not obtain admiflion : That
the bifliop then and there adminiitred an oath to Web-
ber, concerning the lervice of the citation : They find,
that upon the 20th of July in the fame year, the bifhop
iflued another citation for appointing a vifitatibon to be
held the 24th following: They find, that upon the 24th
the bifhop held a vifitation : That upon the 25th he fuf-
pended five of the fcven fenior fellows for contumacy:
That upon the 26th, with the confent of the then feven
fenior fellows, he deprived the defendant then re6lor for
contumacy : That Mr Painter was then made rector, and
entred in the premifTes, and demifcd to Philips the plain-
tiff for a term of years, who entred ; and that the defen-
dant entred upon him, and that the plaintiff brought this
ejectment. After feveral arguments at the bar in this
cafe, the court of king's bench were divided in opinion ;
the three puifne judges, Gregory, Giles Eyre, and Sa-
muel Eyre, were of opinion that judgment ought to be
given for the defendant ; Holt chief juflice, on the con-
trary, held that it ought to be given for the plaintiff.
The principal and leading point in this cafe was, whether
the court of king's bench had any jurifdi<Slion to examine
into the proceedings of the vifitor of the college, and to
give relief to the party oppreiled by them. The three ^
judges who argued for the defendant, refolved, that to
the king's bench belongeth authority, not only to corre£b
errors in judicial proceedings, but other errors and mif-
demeanors extrajudicial tending to the oppreffion of the
fubje6l ; for which they relied on Bagges cafe, 1 1 Co.
98. They alfo held, that a college is a temporal or lay
corporation, of the fame nature with an hofpital. And
they took the difference in Bagges cafe, that if a layman
be patron of an hofpital, he may vifit it, and depofe or
deprive (upon good caufe) the mafler; but if he deprive
him without juft caufe, and by colour thereof the mafler
be oufled, he fhall have an affife ; becaufe the common
law will not permit any perfon grieved to be without re-
medy. And tho* the founder had an abfolute power over
his foundation, yet he could not exclude the jurifdiction
of the common law : no more than if a man fhould de-
vife lands between A and 5, and his intent was, that if
any difference fhould a rife between them about the lands,
it fhould b« determined by C, without procefs ; this ap-
D d 2 pointment

404 Coneses.

pointmcnt would be vain, and the party grieved might
have his remedy by the law. Befides, that the law will
not allow any cuflom, which in any manner may tend to'
the fupport of arbitrary power ; and for this rcafon will
not permit the vifitor to be without controul. And for
thefe reafons they were of opinion, that they had here
jurifdiclion (the whole matter being found fpecially) to
examine and correal the erroneous proceedings (if fuch
they were) of the vifitor. But they agreed, that if the
ordinary deprive a mafter, who is ecclefiaftical, without
juft caufe, he ihall not have an afTife, becaufe he hath
other remedy by appeal ; as in Coveney^s cafe, Dyer 209.
Holt chief juftice, on the contrary'', for the plaintiff ar-
gued, that there are two forts of corporations j the one
conllituted for publick government, the other for private
charity. The former, being duly created, altho' there
are no words in their creation for enabling their members
to purchafe implead or be impleaded, yet they may do all
thefe things, for they are all neceffarily included in an
incident to the creation : And thefe forts of corporations
are not fubjedt to any founder or vifitor or particular fta-
tutes, but to the general and common laws of the realm ;
and by them they have their maintenance and fupport.
But the latter fort of corporations, which are conftitutcd
for private charity, are intirely private, and wholly fub-
jeiSb to the rules laws flatutes and ordinances which the
founder ordains, and to the vifitor whom he appoints,
and to no others. And if the founder hath not appointed
any vifitor, then the law J^.ppoints the founder and his
heirs to be vifitors. For vifitation (he faid) was not In-
troduced by the canon law, but of neceflity was created by
the common law. Patronage and vifitation both rife from
the founder j and the office of the vifitor by the common
law is, to judge according to the ftatutes of the college^
to expel and deprive upon juft occafions, and to hear
appeals of courfe. And from him, and him only, the
party grieved ought to have redrcfs, and in him the foun-
der hath repofed fo intire confidence that he will admini-
fterjuftice impartially, that his determinations arc final,
and examinable in no other court whatfocvcr. As to the
objection of the other fide, that if the maftcr of an hofpi-
tal be deprived by the patron without juft caufe he may
have an afiife, and that a college and hofpital arc of the
fame nature ; he agreed, that a college and hofpital were
of the fame nature ; but as to the objedlion that the maftcr
may maintain an aflife, hcaufwcrcd, that the maftcr could

not

College^. 405

not maintain an aflife, becaufe he is not fole feifed ; and
of that opinion (he faid) Hale chief jufticehad been often
heretofore : and for this reafon he denied the opinion in
Coveneys and Baggis cafes to be law, as Hale chief jufticc
had done before : befides that thefe cafes are grounded
upon an error ; for they rely upon the 8 Affl 29, 30. for
warranting that opinion, where in truth the fame doth
not warrant any fuch opinion. Upon the whole, he con-
cluded, that this college was a private corporation ; that
the founder having created the bifhop vifitor, the jufticc
of his proceedings was not examinable in this court, or m
any other; for which reafons he was of opinion, that
judgment ought to be given for the plaintiff. But the
three other juftices being of a contrary opinion, judgment
was entred for the defendant. Lord Raym, 5. 4 Mod,
106. Skin. 447.

Upon this a writ of error was brought in parliament ;
and the judgment was there reverfed. In the argument '
whereof, biihop Stillingfleet fpoke to this efFe^t : That
this abfolute and conclufive power of vifttors, is no more
than the law hath appointed in other cafes, upon com-
miffions of charitable ufes : that the common law, and
not any ecclefiaftical canons, do place the power of vifita-
tion in the founder and his heirs, unlefs he fettle it upon
others : that altho' corporations for publick government
be fubje(Sl to the courts of Weftminfter hall, which have
no particular founders, or fpecial vifitors ; yet corpora-
tions for charity, founded and endowed by private per-
fons, are fubjecSb to the rule and government of thofe that
ere6t them : but where the perfons to whom the charity is
given are not incorporated, there is no fuch vifitatorial
power, becaufe the intereft of the revenue is not inverted
in them ; but where they are, the right of vifitation arifeth
from the foundation, and the founder may convey it to
whom and in what manner he pleafeth ; and the vifitor
a£ls as founder, and by the fame authority which he had,
and confequently is no more accountable than he had
been : that the Icing by his charter can make a fociety to
be incorporated, fo as to have the rights belonging to
perfons, as to legal capacities : that colleges, altho'
founded by private perfons, are yet incorporated by the
king's charter ; but altho' the kings by their charters
made the colleges to be fuch in law, that is, to be legal
corporations, yet they left to the particular founders
authority to appoint what ftatutes they thought fit for the
regulation of them. And not only the ftatutes, but the
D d 3 appointment

4o6 Collcses.

appointment of vifitors was left to them, and the manner
of government, and the feveral conditions, on which any
perlbns were to be made or to continue partakers of their
bounty. But that which is particularly to be obferved is,
that thefe founders of colleges did take fpecial care to
prevent, as much as poflible, all law fuits among the mem-
bers of their focieties, as moft deflru£live to the peace
and unity of their body, and the tranquility necefTary for
their ftudies ; for they knew very well, that if any en-
couragement were given to fuits at law, thofe places
would in time become nurferies for attornies and folicitors,
which would pervert the main defign of their foundation.
Walter de Merton, the firft founder of a college in Ox-
foEd with revenues to fupport it, took fuch care about
this, that he puts the cafe in his ftatutes, of a warden's
being deprived ; and knowing that men are apt to com-
plain when they fuftcr, and to endeavour one way or other
to be reftored (which caufeth great heats and animofities
among the contending parties), therefore to prevent thefe
mifchievous confequences, he puts a chapter in on pur-
pofe in his ftatutes, that if fuch a cafe ihould happen,
nulla a^io, nullum juris remedium canonici vel civilis habeat.
And fo in the flatutes of Exeter college, it is exprefsly
mentioned, that if the re6lor be deprived by the com-
miflary, he may appeal to the bifhop as vifitor ; but if he
be deprived by the vifitor himfelf, then no farther appeal
is allowed, nor any remedy ywr/V aut fa^L If the ftatutes
did allow oi dcfenfmies legittma:^ as thofe of Magdalen col-
lege do ; no doubt they may make ufe of them, within
thofe bounds which the ftatutes allovir : but here it is
otherwife, for the perfons deprived are bound to acquiefce
in the fentence palfed upon them-; and that, with regard
to the good of the college more than their own. And the
true account (he fays) of fuch caufes firft coming into
Weftminfter hall was this : Soon after the reftoration,
one Dr Withrington, fellow of Chrift's college in Cam-
bridge, was deprived of his fellowfhip by the mafter and
fellows ; he appealed to the king's bench, and craved ^
mandamus to be reftored. In the arguments in that caufe,
one of the learned judges of that court affirmed, that the
firft precedent of that kind was not above ten years before,
during the time of Cromwell's ufurpation. And that was
the cafe of one Hern, who obtained a mandamus to rc-
ftore him to a place he was deprived of in the univerfity,
when Glyn was chief juftice. And the reafon given was,
bccaufe there was then no fpecial vilitor ^ for the arch-

biihop

€ol\t5tS* 407

bifliop of Canterbury was local vifitor, and there was then
no archbifliop. After this, in the year 1655, one Cra-
ford made application to the king's bench, to be reftored
to the place of fchoolmafler in Cambridge, of which he
was deprived by the proper vifitors, the mafter and fellows
of Gonville and Caius college ; and upon feveral argu-
ments it was denied ; and refolved, that no writ of refti-
tution fhould be granted ; but the matter was referred to
the chancellor and others. And fo the court of king's
bench, in Dr Withrington's cafe, declared he could have
no reftitution from thence ; becaufe his appeal lay to the
proper vifitor, who was fdei commiffanus, that is, the
law trufted him with the difcharge of his duty. In the
14 Car, 2. Dr Patrick was chofen mafter of queen's col-
lege in Cambridge, by a majority of fellows ; but ano-
ther was admitted ; upon which he appealed to the king'u
bench: but fome of the judges faid pofitively, that no
writ ought to have been ever granted upon differences irt
colleges, and that the appeal lay to the local vifitor, and
not to the king's bench : It was then urged, that it was
a matter of freehold, and that it was no fpiritual corpora-
tion, but the declaring of a mafter was a temporal thing ;
notwithftanding, the chief juftice declared, that it would
fhake the whole government of colleges, to give remedy
in that court. In the 22 Car. 2. one Daniel Appleford
was deprived by the local vifitor, of his place in New-
College : He brings the matter to the king's bench ;
where the lord chief juftice Hale then fate : The cafe was
argued by learned counfel on both fides : But the lord
chief juftice faid, If there be a jurifdi6lion in the vifitor,
and he hath determined the matter, how will ye get over
that fentence ? and at this rate (he faid) we may examine
all fufpenfions and deprivations, and fo where will there
be an end ? And finally, the biftiop obferved, that altho'
it be very poflible for a vifitor to go beyond his bounds
(for none are infallible), yet if fuch a cafe be put, it is
better that one perfon fuffer, than that the difcipline,
government, and peace of the college be in danger of
being utterly dcftroyed. 2 Still. Cafe of Exeter college.

And the fame do£lrine appears to have been held and
admitted, in Dr Bentley's cafe ; for altho' the court did
proceed to take cognizance in that caufe, yet it v/as not
for that they would interfere with the vifitor's power, but
becaufe no vifitor wds fet forth in the return to the man-
(Jamus ; as will apjfear from ti^e reports both of lord Ray^
D d "L jao.-id

4o8 Colleges

mond and Sir John Strajnge, upon the different arguings
of that cafe in the court of king's bench. The cafe was
thus :

T. 9 Geo. The king againft the chancellor mafters and
fcholars of the univerfity of Cambridge. Mandamus ta
reftore Richard Bentley to his academical degrees of bat-
chelor of arts, mafter of arts, batchelor of divinity, and
doif^or of divinity. To this they return, that the univer-
fity of Cambridge is an ancient univerfity, and a corpora-
tion by prefcription, confifting of a chancellor mafters
and fcholars, vi^ho time out of mind have had the govern-
ment and corre6i:ion of the members, and for the encou-
ragement of learning have conferred degrees, and for rea-
fonable caufes have ufed to deprive : That time of mind
there hath been a court held before the chancellor or vice-
chancellor, for the determining of all civil caufes, where
one of the parties is a member of the univerfity : And that
queen Elizabeth, by letters patent bearing date the 26th
day of April in the third year of her reign, granted them
cognizance of pleas, and to be a court of record : That
in the 13 EUz, this and all other charters of the univer-
fity were confirmed by a£l of parliament : That at a court
held the twenty third day of September 1718, according
to the ufage of the univerfity, before Thomas Gooch,
D. D. then vicechancellor, one Conyers Middleton,
D. D. a member of the univerfiy, levied a plaint in debt
for 4 1 6 s againft the faid Richard Bentley, and prayed
procefs againft him : That thereupon, according to the
cuftom of the univerfity, a procefs ifTued to Edward Clark
the bead':e, to compel the faid Richard Bentley to appear
at the next court : That before the return, the beadle
waited upon the faid Richard Bentley at his lodgings
within the jurifdi£lion, and fhewed him the procefs, and
ferved him with it ; and upon difcourfe between them
concerning the procefs and the vicechancellor, Bentley
contemptucufly faid, the procefs was illegal and unftatu-
tablc, and that he would not obey it ; that he took the
procefs out of the hands of the beadle, faying the vice-
chancellor was not his judge and that he aded foolifhly:
That at the next court, held the 3d of Odober 1 7 18,
Middleton appeared, and declared in debt for 4I 6s ; and
the regifter of the court exhibited a depofition of the bea-
dle touching the contempt ; which being read, the faid
Richard Bentley, according to the ufage of the univerfity^
was fufpcndcd from all his degrees : 7'hat time out of
mind there hath been a cuftom, for the chancellor or vice-
chancellor

CoUtseS* 409

chancellor to fummon a congregation, confiftlng of fuch
and fuch particular members, who are fpecified in the
return ; who have ufed to examine and determine all
matters relating to the univerfity, and to take away de-
grees for contumacy or other reafonable caufe : That a
Congregation was held the 17th of Odober 17 18, when
the vicechancellor declared this whole matter to them,
and defired their judgment upon it; after which, having
read the depofition and the feveral ads of court, the faid
Richard Bentley by judgment of the congregation afore-
faid was degraded : That he has. not yet fubmitted himfelf
to the authority of the faid univerfity : And therefore that
for thefe caufes (faving the authority of the univerfity)
they cannot reftore him.

It was argued by Chefhyre ferjeant for a peremptory
mandamus ; that the return was infuiEcient for the un-
certainty in divers inftances ; that deprivation of acade-
mical degrees is now become a matter of great confe-
quence, becaufe there are many preferments and privi-
leges which by a£t of parliament can only fubfift in dig-
nified clergymen, fo that thofe degrees which at firft were
only titles of honour, do now affect men in their freeholds
and poirelfions ; that the caufes alledged are none of them
-fufficient to warrant a fufpenfion ; that if they were fuffi-
cient, yet that the proceeding it felf was illegal, and par-
ticularly becaufe here, was no notice given to Bentley, tc3|
come in and defend himfelf againft the charge of con-
tempt ; that if the vicechancellor's fufpenfion was legal,
yet the deprivation by the congregation was not fo, not
only becaufe alfo in this cafe there was no fummons to
appear before the congregation, but likewife becaufe the
accufation was not made out to them in a proper man-
ner, being only upon the narration and report of the
vicechancellor.

On the other hand, it was argued by Comyns ferjeant,
for the univerfity ; that the nature of the proceeding at
the fuit of Dr Middleton, is no more than an outlawry
or excommunication, to compel the appearance of the
party ; that the return amounts to fhewing a jurifdicStion
to hold plea, an acSlion properly inftituted againft him,
his contempt to the court, for which he waij fufpended,
and afterwards upon his non-fubmiiTion deprived ; that it
is true, degrees in the univerfities were firft introduced to
encourage learning and learned men, but then it is no
confequence that if learned men mifbehave themfelves
they may not be fufpended or deprived j that it is agree-
able

41 o foueses.

able to the methods both of the common and civil law
courts, to punifh contemptuous words, without calling
in the party, and giving him an opportunity to commit
the like a fecond time; that the method of the whole
proceeding both as to the fufpenfion, and what was done
by the congregation, being according to the courfe of
their own courts, is right, altho' it may not tally with
the method of common law proceedings.

Pratt chief juftice: This is a cafe of great confequencc,
not only as to the gentleman who is deprived, but like-
wife as it will afFedl all the members of the univerfity in
general. I think the return hath fully juftified us in
fending the mandamus, as it fhews that the power of the
vicechancellor and the congregation is only to deprive
for a reafonable caufe ; and as it is not pretended there
is any vifitor, or any other jurifdi6lion to examine into
the reafonablenefs of the deprivation, but that of this
court. It is the happinefs of our conftitution, that to
prevent any injuftice, no man* is to be concluded by the
iirft judgment; but that if he apprehends himfelf to be
aggrieved, he hath another court to which he can refort
for relief; for this purpofe the law furnifhes him with
appeals, with writs of error and falfe judgment : and left
in this particular cafe the party Ihould be remedilefs, it
was become abfolutely neceffary for this court to require
the univerfity to lay the ftate of their proceedings before
us ; that if they have erred, the party may have right
done him, or if they have a£led according to the rules of
law, that their a6ls may be confirmed. As to the pro-
ceeding againft Dr. Bentley, it muft be agreed, that the
vicechancellor had cognizance of the caufe, and fo the
fuit was well inftituted againfl him. I muft likewife tak6
the procefs to compel an appearance to be regular, being
averred to be according to the courfe of that court. As
ro Dr. Ecntley's behaviour upon being ferved with the
procef-i, I muft fay it was very indecent ; and I can tell
him if he had faid as much of our procefs, we would have
laid him by the heels for it : he is not to arraign the
juftice of the proceedings out of court, before an officer
who hath no power to examine it. When he faid the
vicechancellor acStcd foolifhly, it was what he might have
been bound over for to his good behaviour; but 1 believe
it is alfo cftablifhcd, that fuch a behaviour will not war-
rant a fufpenfion or deprivation. I cannot think the
evidence of this contempt was fufficicnt : it doth not ap-
pear to have been upon oath as it fliould have been. But
1 be

be thefe matters how they will, yet furely he could never
be deprived without notice. I do not obferve but it is a
a total deprivation, and not temporary only, as was faid
at the bar. As to the proceedings before the congrega-
tion ; it doth not appear they reheard the matter, any
otherv/ife than by the relation of the vicechancellor :
they fhould have adjudged all the fa£ls again, and have
averred, that the deprivation was for them : whereas the
faying, that for thefe caufes they deprived him, amounts
to no more than that the vicechancellor told them fo.
The vicechancellor's authority ought to be fupported,
for the fake of keeping peace within the univerfity ; but
then he muft a6l according to law, which I do not think
he has done in this cafe,
Powis juftice aflented.

Eyre juftice : The univerfity, unlefs they had a vifitor,
are certainly accountable to this court. As to the depri-
vation, I am not fatisfied, that for a contempt to the
vicechancellor's court, the congregation (which is ano-
ther court) can deprive : for it is hot a contempt to the
univerfity in general j and it is not faid in the return,
that for contempts to the vicechancellor the congrega-
tion can deprive. Every court hath a power to punifh
contempts to it felf ; but I never till now heard of one
court's refenting a contempt to another. But furely for
a contempt they cannot deprive: or if they could de-
prive, it can never be done without notice. Tho' the
vicechancellor had jurifdi^lion in this matter, yet in vir-
tue of our fuperintendency over all inferior jurifdiclions„
we muft take care he doth not abufe his authority. Thus
we do prohibit the fpiritual courts, till they give a copy
of the libel, in all cafes within their jurifdid^ion.

Fortefcue juftice : If they had returned a vifitor, it
would be fomething; but without that, they muft fubmit
to the judgment of this court; which is no more than
exempt jurifdi^tions (as, the county palatine, which hath
jura regalia) do. A deprivation can never be the proper
puniftiment for a contempt ; becaufe it cannot hold in
the cafe of undcr-graduates. I think the behaviour of
Dr Bentley was a contempt, for which he might be
bound to his good behaviour, as it was out of court.
There is another thing confiderable in this cafe, whether
upon any account the univerfity can deprive a man of his
degrees; VcciiiAfe he is in from the crown, whence the
power originally flows. Befides, the objection for want
if notice cai^ never be got over. The laws both of god

and

412 ColUgeisf.

and man do give the party an opportunity to make his de-
fence if he has any. Str, 557.

Afterwards, H. 10 Geo. This cafe was argued a fe-
cond time by Mr. Reeve for a peremptory mandamus ;
that indeed if the univerfity had returned that the king
was their vifitor, as they might have done, it would have
put an erud to the difpute here ; but not having returned
that they had a vifitor, if it appears by the return that
the proceedings in the univerfity have not been agreeable
to the rules of juftice, a peremptory mandamus ought to
ifTue : That when degrees in the univerfity are conferred
upon a pcrfon, he hath thereby a freehold in them, and
will be intitled to feveral privileges and advantages an*
nexed to them by acls of parliament, of which this court
muft take notice : That as to the claufe in queen Eliza-
beth's charter, that no other juftice or judge fhall intro-
mit ; this is no more than a grant of cognizance of pleas
cxclufive of other courts, and muft be governed by the
rules the law hath provided relating to fuch fort of grants,
by which the courts above are not deprived abfolutely of
jurifdi£lion : for if an a6lion is commenced in this court
againft a fcholar of the univerfity, the univerfity may
claim cognizance of the plea by virtue of thefe letters
patent and the a6l of parliament, and if they make their
claim properly and in time it muft be allowed, and the
proceedings here will be ftopt ; but if the univerfity
doth not make their claim the firft day, this court will
proceed notwithftanding this grant; and fo it was held,
H. 1 1 Jf7. in the cafe of Perne and Manners^ where an
a<£tion upon the cafe was brought againft the defendant, a
member of the univerfity, inhabiting within their jurif-
diftion ; the bill was of Eafter term 11 Jn. and the de-
fendant had an imparlance till the firft day of Trinity
term following; after which, and before plea pleaded,
the univerfity of Cambridge by their attorney demanded
cognizance, and fet out the letters patent and a(St of
parliament before mentioned ; and the claim was difallow-
ed, becaufe it was not made the firft day ; and they held,
that the a6t of parliament in this cafe made no difference,
becaufe it confirmed this franchife only as it was granted^
namely, a grant of exclufive cognizance, but the claim
of it muft be according to the rules of the law. He
admitted, that the fads fet out in the return were con-
tempts to the vicechancellor's court, which they might
have punifhcd, if they proceeded according to the rules
of law. He faid, that court was a court of record, and

therefore

ColUses; 413

therefore might have fet a fine, and imprifoned the party
till it was paid, which is a proper punifhment for a con-
tempt ; but that fufpenfion is not a proper punifhment
for a contempt : That a corporation cannot fufpend a
member of their body, for a contempt to one of their
courts ; and if they had returned a cuftom to fufpend for
a contempt, it would be an unreafonable cuftom, and void :
That although the return is, that they may deprive for
a reafonable caufe, yet here is no reafonable caufe j for
it cannot be reafonable for the congregation to degrade
for a contempt or contumacy to another court ; and k
is not faid that he was guilty of contumacy to the con-
gregation : And befides, that it came very odly before
the congregation ; for it did not come by way of appeal,
but by the vicechancellor's narration or report. But he
relied upon it, that there was a fatal fault in the return,
which could not be anfwered ; which was, that it did
not appear the do6tor was fummoned, or had notice of
thefe proceedings againft him, fo that he had no op-
portunity to make his defence ; and to condemn a per-
fon without hearing him, or giving him an opportu-
nity of defending himfelf, is contrary to natural juftice,
and fuch proceedings have been always held illegal and
void by this court.

York, attorney general, on the other fide argued for
the univerfity. He faid, as to the point of want of fum-
mons, he did admit, unlefs this cafe could be diftinguiih-
ed from the cafes of members of corporations, it would
be againft the univerfity. The cafe, he faid, was of
great confequence ; becaufe the franchifes and privileges
of the univerfity were concerned on the one hand, and
the rights and liberties of the members thereof on the
other. He obfcrved, that there were two general quef-
tions in this cafe : The one, whether a writ of manda<-
mus will lie, to reftore Dr Bentley to his academical
degrees ; the other, whether the caufe of depriving the
dodlor of his degrees, fet out in the return is fufficient,
and the return good ; as to the former, he faid, that the
court having already determined that the writ of manda«-
mus was good and did well lie ; he would acquiefce un-
der that determination : but as the other fide had agreed,
that if the univerfity had returned a vifitor, it would have
put an end to this mandamus; fo he could not but ob»-
ferve, that if there was a vifitor, if the do(5lor was ag-
grieved by thefe proceedings of the univerfity, he might
have made his application there. As to the fecond point,
I the

4.14 Colleges.

the return confifteth of two parts ; firll, the fufpenfion
by the vicechancellor's court ; and fecondly, the degra-
dation by the congregation. As to the former of thefe,
namely, the validity of the fufpenfion by the vicechan-
cellor's court; it was objected (he obferved) that Dr
Bentley was not heard in that court againft the contempt,
and that it is againft natural juftice a man fhould be
condemned without being heard : Unto which he an-
fwered, that it muft be admitted there was no neceflity
that Dr Bentley fhould be a£lually heard ; but If he had
an opportunity to be heard, that would be fufEcient :
now he had an opportunity to be heard ; for he was ferved
with procefs to appear at the next court, and if he had
paid obedience to that procefs, he had heard the charge
againft him, againft which he might have made his de-
fence: That there was no neceflity to ifiue out a fum-
mons, or to give him new notice, to come and anfwer
the contempt ; for if a perfon commits a contempt to this
court, or to the court of chancery, by declaring he will
not obey the procefs of the court, by beating an officer
executing the procefs of the court, or by fpeaking refledl-
ing or contemptuous words of any of the judges, upon
an affidavit made of the fact, he will be committed,
without hearing him ; for it is looked on to be a vain
thing, when he hath committed a contempt before, to
make a rule of court to give him an opportunity of com-
mitting a new contempt againft it. This is the rule in
this court, and in chancery ; and it is alfo the rule in the
canon and civil laws. And that is confidcrable in this
cafe, becaufe the proceeding of the vicechancellor's court
is according to thofe laws. By the civil law they may
proceed againft a contumacious -perfon, without any new
citation. And the proceedings in the vicechancellor's
court being according to the rules of the civil law, tho*
this court fliould examine them, yet they muft be exa-
mined according to the rules of that law. The caufe of
fuit was within the jurifdiclion of the vicechancellor'y
court, and this was a contempt in that caufe ; and if that
court had a jurifdi6lion, all the obje£):ions as to the irre-
gularity of the proceedings will be out of the cafe. Their
proceedings are confirmed by the queen's letters patents,
as far as fhe could do it ; but the crown cannot ercdl a
court to proceed according to the civil law by charter,
therefore an ail of parliament was neceflary : an a£t ac-
cordingly paffed, to confirm the letters patent, in which
letters patent the exclufive words are exceeding ftrong.

CoUegtS. 415

as well as the confirmation of all their liberties and privi-
leges. But it hath been objected, that it is not enough
to fay, Dr Bentley was fufpended according to the cuftom
of the univerfity, but there ought to be a cuftom parti-
cularly fet out for that purpofc : To which he anfwered,
that in proceedings in inferior courts, it is always allow-
ed to fay, they were according to the cuftom of the
court. As to the objection, that fufpenfion from the aca-
demical degrees, is not a proper punifhment for a con-
tempt to a court ; he anfwered that by the rules of the .
civil law it is the only proper punifhment. And it is
like an outlawry in the temporal courts ; it is to compel
the party to come in and anfwer; and upon his doing
that, the fufpenfion is taken off. And thefe degrees can-
not properly be called freeholds, nor civil temporal rights :
they were originally only in nature of licences to profef-
fors in feveral profeflbrfhips, and are now titles of dif-
tindlion and precedence. The power of granting degrees
flows from the crown. If thfe crown ere£ls an univerfity,
the power of conferring degrees is incident to the grant.
Some old degrees the univerfity hath abrogated, fome
jiew ones they have ere6led ; and they are taken notice
of in adis of parliament for collateral purpofes ; and tho'
the a6^s have annexed collateral privileges to them, that
will not alter the nature of them, nor ta-ke away the
power the univerfity had over them before. It doth not
follow, that if temporal rights are annexed to thefe de-
grees, the univerfity would be deprived of their power
of degrading. A bifhop hath a freehold in his bifhop-
rick, and a right to fit and vote in parliament ; yet he
may be deprived by his metropolitan. And if courts have
a jurifdidtion and power to proceed by rules different
from the common law; this court will not examine into
the regularity of their proceedings on a mandamus* And
therefore if a mandamus is granted to reftore a fellow of
a college ; if they return a vifitor, tho* his fentence hath
been irregular, it is not examinable here. So if the ec-
clefiaftical court excommunicate a perfon without a cita-
tion ; this court will not grant a prohibition, but the
party muft appeal. When a prohibition is granted to the
viccchancellor's court, for not granting a copy of a libel ;
that is by reafon of the exprefs words of an act of parlia-
ment. And if an a6l of parliament (hould ena6t, that
no certiorari fhould lie, to remove convictions of juftices
of the peace for fuch . nd fuch offences ; tho' the juftices
fhould convi6t the party without fummoning him, no

certiorari

41 6 Colleger*

certiorari would be granted by this court, to remove fuch
a conviction. As to the objection, that by this means
the vicechancellor's court would have an uncontrolablc
jurifdi^lion without appeal, and that it is unreafonable a
man fhould be concluded by the firft determination ; he
anfwered that an appeal lay from the vicechancellor's
court to the congregation. And then as to the degrada-
tion by the congregation ; he faid, that the whole pro-
ceeding againft Dr Bentley ought to be confidered as the
a6l of the court of the univerfity. For by the letters pa-
tent the grant is to the chancellor mafters and fcholars>
that they, to wit, the chancellor mafters and fcholars,
which is the whole body of the univerfity, and their loca
tenentes, fhould have cognizance ; and therefore the con-
gregation are to be confidered as the judges of the court,
and the vicechancellor only as their oiEcial ; that the
court ufually held before the vicechancellor, might be
held before the congregation ; that by the civil law, where
there is a commiflary, he hath only part of the jurifdic-
tion, the reft remains in the ordinary, and that the ordi-
nary may proceed upon a report made by his official. So
here, the congregation might proceed upon the report of
the vicechancellor, which in this cafe he made to them.
As to the obje6tIon, which he faid had been made, that
if the degradation ftood, Dr Bentley would be deprived
of his degrees, without ever being heard, without pro-
fpe£l of being reftored ; he anfwered, that this was but
in nature of a procefs to compel Dr Bentley to appear ;
and that it is the general rule of all courts, and of all
laws, that when the party comes and clears his contempt,
he fhall be reftored : that this privilege of fufpending de-
grees, and degrading, was agreeable to the privileges
which all other univerfities enjoyed ; and that it was ne-
ceftary, that univerfities fliould have a fummary method
of proceeding. For which reafons he infifted, the return
was good, and that no peremptory mandamus ought to
iflue.

Mr. Reeve, by way of reply, infifted, that tho' great
ftrefs had been laid upon the allegations in the return in
its fevcral parts, that the fafts were done according to the
cuftom of the univerfity, this was not fufficient to make
the return good. For the grant in the letters patent of
queen Elizabeth is, that the univerfity fliould hold a court
according to their laws and cuftoms before that time
ufed ; therefore if they have a method of proceeding by
the civil law, which hath been always- ufcd, that ought

Colleges. 4T7

to have been averred fpecially ; and without It, this court
cannot take notice of it under that general allegation,
but muft intend the proceedings are according to the rules
of the common law. It is true, in cafes of inferior
courts, fuch an allegation is enough, becaufe their pro-
ceedings are agreeable to the common law ; but if the
rules of the common law are to be excluded, fuch a cu-
ftom muft be fpecially fet out. And as to the objesf^ion,
that the vicechancellor's court is part of the congregation,
and that the congregation is held before the whole body ;
the firft is not alledged fo to be" in the return ; and as
to the laft, the congregation confifts of the chancellor or
vicechancellor, or his locum tenens, and the regents
and non^regents, which is not the whole body of the
univerfity.

On the 7th of February 1723, the lord chief juftlce
Pratt delivered the opinion of the court, that the return
was ill ; becaufe ftncc it is not (hewn in the return, that
the proceedings in the vicechai^cellor's court or the cc>n-
gregation are according to the rules of the civil law, they
muft be intended to be agreeable to the rules of the com-
mon law ; and if fo, it not appearing the party hath any
redrefs by applying to another court, this court will re-
lieve him, if he hath been proceeded againft, and degra-
ded, without being heard, which is contrary to natural
juftice. This cafe therefore will fall under the rules for
removing of members of corporations ; which cannot be
done without fummoning the party, and giving him an
opportunity of being heard. The cafes determined upon
that head are fo numerous, and the rule fo well fettled
and known, that it cannot now be difputed ; for want of
doing which, the fufpenfion or degradation cannot be
fupported. And therefore a peremptory mandamus was
granted. L. Raym. 1334.

But altho' the king's courts may not interfere with re-
gard to the private ftatutes of the fociety, as eftabliftied
by the founder; yet as to the publick laws of the land,
it feemeth that they may interfere, for over thefe the
founder could give to the vifitor no exclufive jurifdi6lion.
As in the cafe of St John's college in Cambridge^ M. 5 JV.
By the a(Sl of the i W, it was enacted, that if any gover-
nor, head, or fellow of any college or hall in either of
the univerfities, fhould negledt or refufe to take the
oaths, for fix months after the firft day of Auguft then
next following ; fuch government, head/hip, or fcllow-
ihip fhould be void. Several of the fcilowi of that coir

Vol, L, E e Isge

41 8 Colleges.

le^^e had not taken the oaths purfuant to the ftatutc, an^
thereupon a mandamus was diredled to Humphrey Gower,
head of that college, fetting forth the a6t, and that fuch
fellows had not taken the osths, and that they'lHU con-
tinued in their fellowfhips : therefore by this writ they
were commarvded to remove them, or to fhew caufe.
They return, that the college was founded by Margaret
countefs of Richmond ; that the biftiop of Ely for the
time being was by her appointed vifitor ; and on their
behalf it was objetled, that a mandamus is a remedial
writ; I hat no precedent can be produced where it hath
been granted to expel perfons, but always to reftore them
to places of which they had been deprived ; and that it
will not lie, where there is a local and proper vifitofr
But by Holt, chief juftice : The vifitor is made by the
founder, and is the proper judge of the laws of the col-
lege 'y he is to determine offences againft thefe private
laws ; but where the law of the land is difobeyed, (as it
is in this cafe) the court of king's bench will take notice
thereof, notwithftanding the vifitor ; and the proper re-
medy to put the law in execution is by a mandamus.
But the caufe was adjourned. And in the adt of the i G,
c. 13. for taking the oaths in like manner, it is fpecially
pr-ovided, that the court of king's bench by mandamus
Shall compel a perfon to be admitted into a place vacated
for want of taking the oaths as aforcfaid. 4 Mod. 233.
Viner. Mandamus. H. 2.
Return of a vifi- 6. T, 1 3 Geo, 2. The A7/z^ and Whaley. A manda-
tor by affidavit, jnus was granted, dire(?ted to the defendant as mafter of
Peter-houfe college in the univerfity of Cambridge, to
admit Thomas Rogers to a fellowlliip of that college,
upon an affidavit of his ele£^ion.- A motion was made to
fuperfede this writ, upon affidavits of there being a vi-
fitor, namely, the bifliop of Ely. But the court put
the mafter to make a return, and refufed to deter-
mine the point upon affidavits, where the other party
had no opportunity to right himfelf by an adlion. Str,

Vif.tor muff pur- 7' ^- ^ ^^^' 2. Bcntley agamft the bifhop o^ Ely. In

fue his power, prohibition, Dr Bentley the plaintiff- declared, that king

otherwife he will Henry the eighth on the 19th of December in the 13th

cpro 1 ite . _^^^^ ^^ j^jg reign founded Trinity college in Cambridge,

and that queen Elizabeth made a body of ftatutcs, the

fortieth whereof is intitlcd De magtjhi ft res cxigat amoUom ;

and fpcaking of the bifhop of Ely, there are the w()rd>f

corrigat^ pun'iat^ expcllut : that he was cited to appear be-

foTC

Collcfies. 419

fore the bifhop as fpeical vifitor appointed by the fald
40th ftatute of Elizabeth, to anfwer to fixty-four articles,
which are infifted upon as violations of the ftatutes, fome
of which are Jong before the laft adt of grace, and others
of them are for fetting the college feal in conjunilion
with the fellows. The bifhop for a confultation fets out
a former ftatute oi Edw, 6. in thefe words, vifitator epif*
£opu5 EUevfis fit; and avers that he is vifitor general,
and as fuch hath a right to proceed upon the articles.
And on demurrer, after feveral arguments, thefe points
were ruled :

Firft, that tho' feveral of the facls charged appear to
be before the aft of grace ; yet they are not pardoned by
that ftatute, but are ftill inquirable by the vifitor. There
are two forts of corporations, one for publick govern-
ment, the other for private charities. The former of
thefe are governed by the common law ; but the latter
is the creature of the founder, and governed by his pri-
vate laws. Not that the particular perfons are exempted
from the common law, but the body in general is : and
as thefe are private laws, they are in the nature of trufts,
and the breach of them is no crime cognizable by the
common law. The king's power of pardoning arifeth
from his having the executive power in him ; and tho'
in this cafe the king is founder, yet the breach of his
private ftatutes are not crimes againft the crown. The
crimes pardoned are fuch as are againft the publick
laws and ftatutes of the realm j whereas thefe are in the
nature of domeftick rules for the better ordering of a pri-
vate family.

Secondly, that tho' feveral of the crimes imputed to
him, for violations of the ftatutes of the college, appear
to have been done by him in conjunction with others ;
yet that is no reafon to exclude the inquiry of the
vifitor. If a whole body join together in doing an un-
lawful aft, they are feverally punifliable in their natural
capacity.

Thirdly, that by the ftatute of Eclw. 6. the biftiop of
Ely and his fuccelfors are appointed general vifitors 3 it
being Epifcopus Elienfis without any chriftian name, which
fhall extend to the biftiop and his fucceffors without the
words yir the time being.

Fourthly, that tho' the three former determinations are

in favour of tae fuit below, yet the prohibition ought to

ftand ; becaufe the bi(hop hath not cited the doftor upon

the foot of his general vifitatoria) power, but as a fpecial

E e 2 vifitor

420 Coiiejjesi;

vlfitor appointed by the 40th ftatute of Eltz, which the
court Aiid, he was not. For being before appointed ge-
neral vlhtor, there remained no farther power in the crown
with regard to enlarging the vifitatorial power. They
faid it was a queftion they would not determine, whether
when the crown has given ftatutes and appointed a vifitor,
the fucceflor can any way alter or annul the former fta-
tutes : the practice indeed has been otherwife ; but it hath
never been determined to be good. For this laft reafon,
they were all of opinion, that the prohibition ought to
Hand.

Note, upon a writ of error in parliament, this judgment
was reverfed ^ and the lords went into the confideration
of the feveral articles, and as to Ibme granted a prohibi-
tion, and as to others a confultation. Str. 912.
Cafe where a 8. £. I Geo. 2. K, and the bifhop of Chejier, Man-

perfon to be vi- (Jamus directed to the bifhop as warden of Manchefter
be'^airoTjiitor. " college, to admit a chaplain. The bifllop returns, that
by the royal foundation, he is appointed vifitor. And
upon argument it was objected, that tho' a mandamus
will not lie where there is a vifitor free from- any objec-
tion, yet here the two offices being in the fame perforr,
he cannot vlfit himfelf ; and no cafe can be fhewn, where
the founder hath once granted the whole out of him, and
on fuch a temporary fufpenfion it hath refulted back.
And by the court ; it is plain he cannot vifit now, be-
caufe his power is fufpended ; and thefe are powers that
may ceafe, and revive, without inconvenience ; fmce
there is this court to refort to. In a lay corporation, the
founder and his heirs are vifitors ; in a fpiritual corpora-
tion, the jurifdi6tion is here, i>nlefs there be an exprefs
vifitor appointed : the ground of our intcrpofing in this
cafe is, that at prefent there is no other vifitatorial* power
in being. And a peremptory mandamus was granted.
Str, 797.

Afterwards, an a6l of |>ar]iament was made, 2 G, 2.

c. 29. impowering the king to vifit the collegiate church

of Manchefter, during fucli time as the wardenftiip of the

faid church is or (liall be held in commendam with the

bifhoprick of Chcftcr.

Whfre it Is dif- c). IL 306'. 2. The maftcr and fenior fellows of 3 1

perVonTsvlnior* y^/zw'; colkge \\\ Cambridge^ againil the reverend Thomas

or noT, thr Todington^ clerk. It was moved in behalf of the mafter

kind'- courts nre j^j^j Ibnior fcllows of the faid college for a prohibition ; to

prohibit the biftiop of Ely from proceeding as fuppofcd

vifitor of the fard colle:;e, on an appeal promoted by the

faid A'lr I'odiji^toa for their not electing him fellow.

The

Colleges.

The fuggeftion ftated, that the bi{lK)p of Ely /or tha
time being is aot vifitor of the faid college, as to ele61ions
into fcllowfbips or other offices in the faid college, nor
hath any vifitatorial power or jurifdi£lion whatfoever over
the mafter and fellows of the faid college or any of them
in that refpeit :

That by an indenture tripartite, made the 27th day of
Odiober in the 22d year of the reign of king Henry the
eighth, between Sir Anthony Fitzherbert, knight, then
one of the king's juftices of his common pleas, and John
Keton, do6lor in divinity, and canon of the cathedral
church of Salisfbury, on one part ; the chapter of South-
well, on the fecond part ; and the then mailer, fellows,
and fcholars of the college of St John aforcfaid, on the
third part ; it was covenanted and agreed between the
faid parties, for them, their heirs and fuccellbrs for ever,
in form folk)wing : That is to {^y^

That the faid mafter fellows and fcholars of St John's
aforefaid had granted for them and their fuccelTors for
ever, unto the faid Dr Keton, that he forhimfelf, at the
nomination and appointment as thereafter fhould be ex-
prefled, fhould have two fellows and two fcholars founded
and fuftained at the cofts only of the faid mafter fellows
and fcholars within the college of St John aforefaid, there
to continue for ever of his foundation, over and above
other fellows and fcholars there founded or thereafter to
be founded by the foundrefs of the faid college or any
other perfon that then had given or thereafter fhould give
lands or goods to fuch purpofe or intent :

That the faid mafter fellows and fcholars of the faid
college thereby covenanted and granted unto the faid Sir
Anthony Fitzherbert, Dr Keton, and to the faid chapter,
and to their heirs and fuccellbrs, that the faid fellows and
fcholars of the foundation of the faid Dr Keton, fhould
have and enjoy all manner of profits, as well meat drink
and wages, as all other commodities eafments and liberties,
like and in as large n^anner as other fellows and fcholars
of the fame college (by the foujidrcfs's foundation of the
fame college) then had, or in time then coming fhould
have, in any manrjer of wife^ at the proper cofts and
charges of the fame mafter fallows and fcholars of thg
college of St John aforefaid, and their fucccflbrs forever :

That the lame mafter fellows and fcholars by the faid

indenture covenanted and granted unto the faid Sir An--

thony Fitzherbert, Dr Keton, and chapter of Southwell,

and to their heirs and fuccellbrs, that the fame two fel-

E c 3 Ifiws

^21

42 2 CDUegeg*

lows of the foundation of the faid Dr Keton, fhouH re-
ceive of the faid mailer fellows and fcholars and their fuc-
cefTors every year il 6s 8d, over and above the wages
limited to other fellows of the foundrefs's foundation ;
that is to fay, to either of them 13s 4d, at the feafts of
Eafter and St Michael yearly, by even portions :

That the faid mafter fellows and fcholars thereby co-
venanted and granted, for them and their fuccefTors, unto
the faid Sir Anthony Fitzherbert and Dr Keton, and the
longer liver of them, that they from thenceforth jfhould
have the nomination and ele6lion of the faid fellows and
fcholars during their lives natural ; and after the deceafe
of the faid Sir Anthony and Dr Keton, then the faid
fellows and fcholars fhould be at the nomination and
ele<5lion of the faid mafter fellows and fcholars of the
college of St John aforcfaid, and of their fuccefFors for
ever, after and according; to fuch ordinance and writing
as the faid Dr Keton fhould thereof make and declare by
his laft will or otherwife :

Provided always, that the faid fellows and fcholars
jfhould be eleded and chofen of thofe perfons that be or
had been choirifters of the chapter of Southwell aforefaid,
if any fuch able perfons in manners and learning could be
found in Southwell aforefaid j and in default of fuch per-
fons there, then of fuch perfons as had been choirifters of
the faid chapter of South v/ell, which perfons fliould be
then inhabitant or abiding; in the faid univerfity of Cam-
bridge ■, and if none fuch fliould be found able in the
univerfity aforcfaid, then the fame fellows and fcholars to
be elected and chofen of fuch perfons as fhould be moil
fingular in manners and learning, of what country foever
they fhould be that fhould be then abiding in the fame
univerfity:

1'hat the faid maf!:er fellows and fcholars covenanted
and granted by the faid indenture, unto the faid Sir An-
thony Fitzherbert and Dr Keton, and to the faid chapter,
their heirs and fuccelTors, that when the faid two fellow-
fhips and fcholarfliips or any of them fliould be vacant,
then immediately at the th.en next time of election of fel-
lows or fcholars of the fai^d college limited by the flatutes
of the colleore of St John aforcfaid, other fellow or fellows
fcholar or fcholars as th<; cafe fhould require fliould be
defied named and chofen. by the faid maflcr fellows and
fcholars, according to thefe covenants and agreements,
and according to fuch ordinances or will as the faid Dr
Keton fliould thereof uiakv} and dcclaic :

1 That

Collcgeff* 423

That it was covenanted and agreed by the faid inden-
ture, that the faid mafter fellows and fcholars of St John
aforefaid, and alfo the fellows and fcholars of the founda-
tion of the faid Dr Kcton, at the time of their admiflion,
ihould be fworn to obferve and keep the ftatutes and ordi-
nances that then were made, or thereafter fliould be made,
by the faid Dr Keton, for the foundation of the faid fel-
lows and fcholars; fo that the fatid ftatutes fliould be
conformable with the ftatutes of the foundrefs of the laid
<:ollege.

For the which all and lingular the premiffes well and
truly to be obferved and kept by the faid mafler fellows
and fcholars and their fuaceflbrs in manner and form as is
aforefaid, that is to fay, as well for the clecSlions and ad-
miffions of the faid fellows and fcholars, and for their
finding, and for wages yearly to be paid to the fame,
with all other liberties commodities and profits likcwife
pertaining unto them, as for all other covenants and agree-
ments, with all and fmguJar the premiffes, according to
the ordinance above rehearfed ; the faid Dr Keton had
contented given and paid, to the faid mafter fellows and
fcholars, in money plate and jewels, the value of 400 1 :■

That it was covenanted and agreed by the faid indenture
between the faid parties, for them and their fuccefTors,
that if the faid mafter fellows and fcholars and ti.cir fuc-
cefTors fhould fail in taking admitting or receiving of the
laid fellows and fcholars, in any time of election next
after the avoidance, and they fhould not be chofen nor
admitted into the faid college according to the ordinances
and agreements above rehearfed, or fhould not have and
enjoy their full commodities and profits as is aforefaid ;
that then the aforefaid mafter fellows and fcholars and
their fuccefTors fhould forfeit as well to the faid Sir An-
thony Fitzherbert and Dr Keton, as to the chapter of
Southwell, and to their heirs and fuccefTors, in the name
of a penalty or pain, for every default made or no due
ele6^ion of the faid fellows and fcholars or any of them
20 s, for every month that it fhould happen the faid fel-
lows and fcholars not to be chofen nor ad 1 itted into the
faid college as is aforefaid, or reftrained of any profits
commodities or eafemcnts as is aforefaid ; and that then
it fliould be lawful as well to the faid Sir Anthony Fitz-
herbert and Dr Keton for their part, as to the faid chap-
ter of Southwell, and their heirs and fucceflbrs for their
part, into the manors of Marflete and Myllington in the
cpunty of York awd into the manor of Little Markham in
£04. the

424 Coiuges.

the county of Nottingham to enter and diftraln for the
fame 20 s and the arrears of the fame, for every time or
times of forfeiture ; and the diftrefs to withold until the
faid 20 s, with the arrearages of the fame, Ihould be to
them well and truly fatisfied contented and paid :

That the faid Dr Keton did not at any time, by his laft
will or otherwife, make or declare any flatute or ordi-
nance, other than what was contained in the faid above
recited indenture, of or concerning the faid fellowfhips
called Southwell fellowfhips, or of or concerning either
of them :

The fuggeflion alfo ftated, that an appeal had been
made to the bifhop as vifitor of the college by the faid
Thomas Todington, complaining that the faid mafter
and fenior fellows had unduly ele6lcd William Craven,
clerk, into one of the Southv/ell fellowfhips founded by
the faid Dr Keton, and had refufed to ele£l him into the
faid fellowfhip, notvvithftanding he had been a choirifter
of Southwell, and was otherwife duly qualified according
to the indenture of foundation ; and that they had been
ferved with the bifhop's citation and procefs upon the faid
appeal j and therefore they prayed a prohibition.

Upon fhewing caufe, the ftatutes given to the college
in the time of queen Elizabeth, and by which the college
hath ever fincebeen governed, were laid before the court;
and alfo Dr Keton's indenture.

During the argument, the counfel for the college having
infilled much upon their being permitted to declare in
prohibition ; the court, for faving cxpencc to the parties,
and in order that the matter might be fully heard and yet
determined in a fummary way upon motion, dire6:ed that
bifhop Fifher's flatutes, by which the college was govern-
ed before the making the flatutes of Elizabeth, fliould
alfo be laid before the court ; as thefe flatutes might give
fome light to the conftru6lion of Dr Keton*s indenture,
which was made during the time thefe flatutes were in
force ; which was done accordingly : So that this cafe
(hould be determined upon the whole of the evidence which
either party could lay before the court.

The counfel who fhcv/ed cau'e againft the prohibition,
made three queftions : i. Whether the bifhop is general
vifitor of the college, as to the elc£lion of fellows. 2.
Whether there is any thing in this particular fellowfliip,
which will exempt it from his vifitatlon ; being it is aj>
ingrafted or annexed foundation. 3. Whether the power
of dilbefs is not the only remedy 5 or, in other words,

whether

Colleges* 425

whether (notwithftanding) the bifhop's power doth not
ftill fubfift.

As to the firft ; they argued, that the college was
founded in the fecond year of Hen. 8. from a priory col-
legiate, belonging to the bifhop of Ely; of which the
bifhop was vifitor : By law (by Holt chief juftice) he is
fo ; therefore he did ftill remain fo. The bifhop of Ely
was vifitor under Dr Fifher's flatutes ; and the faid Dr
Fifher referred a power, of altering, interpreting, or
giving new ftatutes ; yet the power of coercion is wholly
left to the bifhop of Ely, and he has the whole executive
power in him. The flatute de Vifitatore makes him vifitor :
Epifcopo Elienfi commendamus. No fet form of vi^ords is
neceflary to appoint a vifitor. And if he is vifitor, all
other powers are incident to his office. And the words
of the faid ftatute fhew the extent of his authority, when
he vifits ex officio. And no objecSlion can arife upon it,
but he may vifit. There is a claufe in one of the ftatutes
of Elizabeth, which fixes the expence of his vifitation ;
which fhews, that he was before in pofleffion of this
power. "When Dr Keton's foundation was made, the
college was governed by Fifher's ftatutes. Dr Keton
referved a power to himfelf to make ftatutes touching his
own fellows : He made none : If he had, they were to be
conformable to the ftatutes of the college : As he made
none, and his fellows were by the indenture to be paid
out of the revenue of the college, and were to have the
fame power and right as foundation fellows, and were to
obey the fame ftatutes ; by this means Dr Keton made
thenFi fubjecl to the fame ftatutes and the fame vifitor.
Dr Keton referved no power to his heirs to give ftatutes.
By the indenture, the right of election is given to the
mafter fellows and fcholars ; but Dr Keton's fellows
ufually have been, as the reft are, eledled by the mafter
and fellows only. The ftatutes of Elizabeth are ftill more
plain : They recognize him by name to be vifitor : He is
€xprefsly fo appointed : The power muft be fomewhere ;
and no body elfe ever claimed it : The exercife of it is an
evidence of the right, and implies a grant of it. For
which purpofe was cited the cafe of Dr Martin againft the
archbiftiop of Canterbury as vifitor of Merton college in
Oxford^ T. II b° 12 G\ 2. This was the cafe of a pri-
vate fellowftiip : It was contended by Dr Martin, that
the bifliop of Winchefter was vifitor: The other fide
(liewcd, that the archbiftiop had exercifed this power,
but the bifhop of Wincheitej neve^ had : An objcflion

was

426 Colleges.

was taken, that as the cafe was doubtful, a prohibition
was proper : By the court, The long ufage will not give
a right, yet it is a ftrong evidence of it ; and a prohibition
was denied.

Upon the fecond queftion it was argued, that different
vifitors of different foundations, would be productive of
£;reat confufion and perpetual difputes : That half of the
fellows of the college are ingrafted, yet all take the fame
oath, and are all to be governed by qu€en Elizabeth's
ftatutes ; there is no exemption in thofe ftatutes ; and Dr
Keton's foundation was made long before ; and they all
fvvear to obey the ftatutes of Elizabeth.

As to the third queftion ; By the indenture the college
agree, thefe fellows (hall have the fame rights as founda-
tion fellows had : An appeal to the vifitor was one of
thofe rights ; and the law has great refpe6l to rights :
The penalty or forfeiture does not leflen the right ; they
were two independent things : It is inadequate ; it cannot
take away the antecedent right of a third perfon : The
candidate has one right, and the biiliop another, and the
chapter of Southwell another : The two firft are remedial ;
the laft is a right to punifh : The penalty gives no relief
to the candidate ; but if it did, where a party hath feveral
remedies, he m.ay take which he pleafes. Diftrefs was
orio-inally applicable to rent; yet if it was recovered by
action, the rent notwithftanding muft be paid; tho' a
penalty be given, yet the fpecific remedy is not loft.

In fupport of the rule for a prohibition, it was argued ;
The power of a vifitor is arbitrary, and yet conclufive in
the firft inftancc. All fundatory rights arife from the
property of the donor. A founder has the nomination of
his vifitor ; and unlefs he difpofe of this power, it remains
to his heirs ; and if he die without heirs, it goes to the
crov/n. It is fettled, that a founder, or his heirs (if he
does it not), may make a vifitor ; may give him partial,
or general powers; if partial ones, and he exceeds them,
that excefs becomes a. nullity, and lets in the law ; and
this court, whether they can p;ive relief or not, will fee
that thefe jurifdiclions keep within their bounds, and will
grant a prohibition where there is fuch excefs of power,
• as well as where there is no power at all.

If Dr Keton made no vifitor, the power remains in his
heir ; and if no heir, it is in the crown. Where there is
a probability of doubt, whetlicr the party to be prohibited
is doing right or not; the court always gives him liberty
to declare in prohibition, othcrwife the party would be
without remedy.

2 p.

Colleges. 427

2 P. Will. 325. was cited to fhew, that a vlfitatorial
power is not by implication to be inferred. It muft de-
pend upon a dire£t appointment.

The arguments drawn from the word vifitor., are not
conclufive. For the word is not ufed with any defigna-
tion of the power. A man may make an executor, to
execute one part of his will ; and another executor for
another part. So a vifitor for a particular purpofe, can-
not (becaufe he is fo) be a general vifitor.

We admit the bifhop vifitor for fome purpofes, but not
a general vifitor. He is limited" by the flatutes, in the
time, the objedts, the manner and form of his vifitation.

It is objecSted, that the words y?/ vifttaior^ in Dr Bent-
ley's cafe, were held fufficient to make the bifhop of Ely
general vifitor. But that was not the ground of the judg-
ment. Lord Raymond confidered in that cafe what the
crown had in view ; that they m.eant to make a general
vifitor over all perfons and all things ; there was no refer-
vation in the crown to make new flatutes, as there is in
this cafe ; and the great doubt was, whether the crown
ihould take the right vefled in the bifhop out of him ; and
if queen Elizabeth's flatutes had not been accepted, the
crown fhould not have refumed that power.

The power given by the flatutes of this college to the
vicechancellor in certain cafes, and to the mailers of
Trinity, King's, and Chrifl's colleges, are inconfiflent
with a general vifitor. Queen Elizabeth referves to her-
felf the power of giving new, and of interpreting thefe
ftatutes ; and interdicts therein the bifliop or vicechancel-
lor. By the ftatutes the bifhop mufl be called in -, and
he is limited within fifteen days. A iingle perfon cannot
call him to vifit. Dr Keton's foundation being antece-
dent to queen Elizabeth's flatutes, and bifhop Fifher's
flatutes being thofe which the college was governed by ar
that time j queen Elizabeth could not make his foundation
fubjedl to the bifliop of Ely's vifitatorial power. Trinity
hall hath the fame flatutes as Caius college ; and yet they
have not the fame vifitor.

The cafe of Green and Rutherford is here not applicable.
That was a mere trufl ; and therefore the bifhop could
have nothing to do v/ith it. Lord Hardwicke could only
determine upon the flatutes in the defendant's plea. But
all the flatutes being now before the court ; and there ap-
pearing powers and provifions made by them, inconfiflent
with the bifhop's power as general vifitor 3 this court will
determine Othcrwifc.

The

42 8 Colleges*

The nomine poena is a common law right ; and the vi-
fitor hath nothing to do with it. A fpecific remedy is
provided, and to be had elfewhere, and not from the
bifhop of Ely. By the indenture, the power of diftrefs
is given to Dr Keton, Fitzherbert, and the chapter of
Southwell, their heirs and fuccefTors. The remedy is
not inadequate ; for, if followed, it will come to the
fame thing. The chapter of Southwell are only truftees
for Todington ; and if he is injured, he may in equity,
fhewing his proprietary right, compel them to diftrain ;
and if he does, the college muft ultimately come' here ;
and the right being determined at law for him, the court
will grant a mandamus to admit him to the fellowfhip.
And this is the ground, why the prohibition ihould go ;
becaufe this court will not fuffer the power of a vifitor to
be exercifed v/rongfully.

By lord Mansfield chief juftice :

I was very defirous to fee if any further light couM
be had in this cafe, from the ancient conftitution of the
college ; and therefore directed that bifhop Fiflier's ftatutes
fhould be looked into, and laid before the court.

It was infifted upon in the firft argument, that the
court fhould at leail give the plaintiff leave to declare in
prohibition ; that this matter might receive a more folemn
determination. But I own I had flrong objections to it
then ; and I will now fay a few things upon that head,
before I come to the merits of this cafe.

When the court inclines to grant a motion for a pro-
hibition, there the defendant has a fort of right to in-
fift, that the plaintiff fhall declare in prohibition. But
where the opinion of the court is againft granting a pro-
hibition, the plaintiff has no fuch right to infid upon de-
claring in prohibition. We cannot compel the plaintiff
in prohibition to declare ; but the ilatute of 8 ^ 9 W.
c. II. makes him liable to cofls ; nor can we, for the
fame reafon, compel the defendant to defend againff his
•ivill.

Only confidcr what would be the confcquence in fuch
a cafe as this, if the court was to permit the plaintiff to
declare. It would have many bad confequenccs. A fcl-
Jowfhip is a temporary fupport ; and fometimes is limited
to a certain number of years. Is the promoter (or fel-
lowj to take upon himfelf the expcnce of fuch a fuit,
which may go thro' all the forms of law, even to a
writ of error, only becaufe the plaintiff afks it? Or is
the vifitor to do lO. If neither of thun will doit, the

confequeiico

Collegejf, 429

confequence will be, that every college fhall do as they
pleafe, and may do this even in a cafe where the autho-
rity of a vifitor is well founded.

Having faid thus much in a cafe where the court is
againft the prohibition, I muft add, that it is much bet-
ter and more convenient to all parties, to have this mat-
ter determined in a fummary way.

I come now to the merits of the queftion. I muft own
1 am confirmed in the fame opinion I was of, when this
matter was firft ftated to the court.

There are two ge^ieral queftions :

1 . Whether the biihop of Ely is vifitor of this college,
as to the election of fellows -, for that is the point which
4s put and infifted upon in the fuggeftion ; and the ma-
tter and fenior fellows only complain.

2. Suppofe the bifhop is fuch a vifitor, and may vifit
the fellows upon the old foundation ; yet whether he may
exercife that power upon Dr Ketones fellowfhips, which
are ingrafted fellowfhips.

I will make here fome obfervatiohs, and lay down fome
general rules, concerning this power of a vifitor.

This power, tno' a fummary one, is certainly very
convenient for thefe learned bodies. It has often been
fo confidered by themfelves. It is called forum domejli^
cum. The exercife of it is in no cafe more convenient,
than in that of eleiStions. When the qualifications and
proprieties of candidates are to be determined ; what con-
fufion would be made, if thefe were to be determined at
the common law, and the party who had the right were
yet kept out of the profits in the mean time.

But be this power convenient or not j we mufl take it
as it is eftablifhed by law.

When there is a vifitor, he is fo without appeal j as it
was adjudged in the cafe oi Philips and Bury,

Having premifed this, I will mention fome of the rules
concerning this power.

The law conftders thefe foundations in two lights ;
'firfl, as they are corporations : and in this refpecSt they
are creatures of the crown*s charter, governed by the
law of the land. Secondly, as they are eleemofynary :
and in this refpe6l they are creatures of the founder's
bounty, and fubjc£t to the power of vifitation.

The founder may delegate his vifitatorial power ; ei-
ther generally, or fpecialiy. He may do this either
,by general word-s, or he may prcfcribe a mode for the
exercife of any part of this pov/er. But if a mode
of vifitation is prefgribed, in any particular cafe; that

will

430 Colleger,

w-ill not take away the general powers incidental to the
office of a vifitor ; of which powers that of determining
concerning elections hath been held to be one. Sit vi-
fttator has been held a fufficient appointment, and to give
all powers incidental to the office. No fet form of
words is neceflary. You muil look into the whole tenor
of the ftatutes, to fee whether the power be given, or in-
tended to be given.

When the ftatutes in queflion were made, vifitatorial
power was not fo well underilood, as it has been fmce,
and is at this day.

A founder may fplit this power into a number of fta-
tutes for particular cafes, and yet the court may confider
upon the whole who is general vifitor.

In the cafe of Clare Hall in Cambridge, Attorney Ge-
neral againft Talbot^ H. 1747. Lord Hardwicke argued,
that there was a general vifitor. One of the ftatutes di-
rc(Sled, that the chancellor of the univerfity fliould vifit
yearly, if any thing wanted to be corredcd. A fecond
ftatute gave him power to interpret the ftatutes. A third
ftatute referved to the countci's of Clare a power to give
new ftatutes, but exprefly excluded her heir from doing
fo; and there were no general words appointing the chan-
• - cellor to be vifitor. But as the heir was exprefly exclu-

ded from giving new ftatutes, and the chancellor of the
univerfity had power to interpret and to vifit, altho* not
exprefsly appointed vifitor ^ yet lord Hardwicke held he
was a general vifitor.

I take this to be clear, that a founder may appoint a
vifitor with general power; and yet except particular
powers in particular cafes.

Thefe being the general rules relating to vifitatorial
power ; I will now confider this cafe upon the ftatutes
themfelves.

The prefent conftitution of the college muft be taken
as it ftands upon the ftatutes of Elizabeth. The old
ftatutes or old conftitution are no otherwife material,
than as they may ferve to give light to the new ones,
which refer to them. As in the conftrucStipn of an adl:
of parliament, an old ftatute may give light to the con-
ftru<£tion of a new one.

The queftion is, whether upon thefe ftatutes the bifliop
is general vifitor of the college, except in fpecial cafes
provided for in the ftatutes.

In cafe where a body of ftatutes is given by a founder,
1 doubt whether a vifitor can give or make new ftatutes,
unlcfs power is eiven him for that purpofe.

Where

Colleges. 431

Where there are no ftatutes to prohibit him, there are
cafes wherein injun(ftions have been given by a vifitor.
I obferve this, becaufe upon thefe ftatutes I obferve a
jealoufy in the founder, that the right of giving ftatutes
might not be taken from the crovrn (the heir of the
founder).

The bifhop was to be vifitor, not legldator. He was
to give no new ftatutes. By the ftatutes the legiilative
power is referved to the crown.

It hath been held (in Dr Bentley's cafe), that where
a body of ftatutes hath been already given, the ciown
(tho' the founder) cannot alter them without the c6nfent
of the college.

Here the power of making ftatutes Is exprefly referved
to the crown, and is particularly guarded. And if the
biftiop adls contrary to the ftatutes, he aits contrary to
his authority.

The provifion made In Chap. 45. De modo procedendi
contra ?nagijirum^ wherein the vicechancellor, the maftcrs
of Trinity, Chrift's and King's colleges are to interpofe,
amounts to an exception of the general vifitatorial power,
in that particular cafe. So in other particular cafes.
But the queftion is, whether all the reft of the vifitatorial
power is not in the biftiop.

This depends upon three ftatutes : Chap. 2. De elec-
tione magijiri. Chap. 50. De ambiguis. And Chap, 51.
De vifttatore. It is obfervable, that Chap. 2. refers to
the biftiop as the known vifitor of the college, and by
words which make him a vifitor — ad coilegii vifitatore7n ve-
niatur : And though this ftatute doth not defcribe him
by name as vifitor, yet the ftatutes treat him as well
known to be the general vifitor.

By Chap. 50. De ambiguis: Exprefs authorities are
given to the biftiop as vifitor, to determine, interpret,
and declare upon the ftatutes. This is as large a power,
as any vifitor can have ; he is not to make new ftatutes,
for that is contrary to his power. The words in this
ftatute, vifilationem autem hujus coilegii epifcopo Elienfi com-
mendamus, are moft ftrong words to make him a general
vifitor.

Chap. 51. De vifitatore^ gives him a power to vifit ^a-
officio ; cater aque omnia et fingula faccre et exerccre^ accord-
ing to the faid ftatute.

In Talbot's cafe, the vifitor was to vifit de anno in an.-
nwn J yet he was held to be a general vifitor.

432 Colleger.

In the cafe of Exeter college, de qtdnquennlo In quin-
quennium ; yet held to be a general vifitor. Such a limi-
tation of time is not material. If he is vifitor, he has a
right to hear complaints at any time : This is inciden-
tal to his vifitatorial power.

This being fo, I am the more confirmed in my opinion
of thefe ftatutes (if nothing arifes upon bifhop Fifher's
ilatutes to the contrary), from the cafe of Green and
Rutherforth^ May 23. 1750. The firft queftion in that
cafe was, whether it did appear that the bifhop of Ely
was general vifitor of this college. Thefe three flatutes,
namely. Chap. 2, 50, and 51, were then pleaded to the
jurifdii^ion of the court. Lord Hardwicke was of opi-
nion, that the bifhop of Ely was general vifitor. The
only thing which he had any doubt upon was, the injunc-
tion upon the mafler not to obey the bifhop, if he a£led
contrary to the ftatutes. But this he faid was an excep-
tion whenever fuch a cafe arifes ; as in the cafe of M.an-
chefler college: And when fuch a cafe happens, the ju-
rifdicStion will devolve upon the king's courts.

I think the old flatutes and conflitution of the college
confirm this opinion. They are as flrong to make the
bifhop general vifitor ; except in cafes excepted.

The ftatute De amhiguis is in both. So is the flatute
De vifttatore : But the words at the end of this ftatutc,
prater hunc vlfttationis modum nos alium nullum Elienji epif-
copo concedimus, are left out of queen Elizabeth's ftatutes.
This fcems to have been done purpofely to avoid doubt.
Upon the conftrudtion of thefe words, as they ftand in
the old ftatutes, I think they cannot bear the fenfe which
has been contended for ; that is, that the bifhop fhall be
vifitor in the fpecial form prefcribed by the ftatutes, or
that they fhall only extend to his vifitation as ordinary.
The countefs of Richmond was jealous, that the bifliops
of Ely might claim to be founders ; fhe is anxious left the
bifhop fliould give new ftatutes, or fet up any right to
change the old ones ; and therefore fhe dire<Sts he fhall
have no greater power, than he had in other colleges where
he was not founder.

To vifit as ordinary, and to vifit an cleeniofynary
foundation, are difterent things ; and yet the bifliops of
Ely in Cambridge, and the bifliops of Lincoln in Oxford,
had more vifitorfliips, bccaufe they were diocefans.

It has been objecStcd, that this is a proceeding to de-
privation ; and therefore by the ftatute De vifttcttorc^ the
bilLoM cannot viht, unkli- lie is called in by the malkr

2 and

€0llm^. 433

iand five of the fenior fellows. But this Is not a cafe of
deprivation. The bifhop has power over all the mem-
bers of the college. He is only to confider, whether thft
party is a member of the college or not, duly elected or
not. This is a quefliori upon a pov/er which has always
been held incidental to the v ill tato rial power.

It has never been doubted in the college, but the bi-
Ihop was the vifitor of the fellows upon the old founda*
tion. My reafon for thinking fo is, that nothing has
been faid at the bar to the contrary. And a cafe has
"been cited of an ingrafted fellowfhip, wherein an ap-
peal was made to the bifhop. Peg and Burton^ in 1726.

This brings me to the fecond queftion : Whether in-
grafted fellowfliips are fubjedl to the review and fentence
of the vifitor ? This draws on a queftion of the greateft
Confequence to all the colleges in both univerlities. One
cannot fee the tenth part of the mifchief which would
arife to the college, if they fhould fucceed in this point ;
and there is no college which would not be involved in
it» In this college there are 32 original fellowfhips, and
27 upon annexed foundations*

I wanted to know whether the form of conveyances of
this kind, before the time of queen Elizabeth, was not
by an indenture with a claufe of diftrefs, as this of Dr
ketones j and my reafon was, becaufe I fufpe^bed it
took its original form, in analogy to tenure by divine fer-
vice not performed (Lift, fe(St. 137.): If the fervice ht
certain, the donee had a power of diftrefs by the common
law; but if the fervice was uncertain, he had no remedy
but to complain to the vifitor.

Such indentures as this have been made in many cafes*
I have taken the pains to inquire and be informed of all
the old colleges both in Cambridge and Oxford ; and
find there are none, but where there are fome in-
grafted fellowfhips made by indenture as this is. And
there never was an inftance, v/hcre fellov/ftiips are in-*
grafted, that they were not as all the other fellows of the
college, unlefs particular terms were given, and unlefs a
fpecial foundation was made, and a fpecial acceptance of
it. When this is not done they are confidered as fellows
of the body at large.

In the c-sSz oi TJmver/ity college, T. 1 740. Upon ah
appeal to the lord chaacellor Hardwicke : This college
was founded by king Alfred : William of Durham found-
ed two fellowfhips, and required that they fhould be cho*
fen de proxime Dunclmia partihia oriundi:. This came bc-

VoL. I. ^ i ftre

434- Colleges*

fore the ckancellor upon an appeal, on a faggedion that
the crown in right of the founder was vifitor ; William
of Durham having appointed no fpecial vifitor of his fel-
lows. The objediion was, the fellows were not to be
chofen from the county of Durham, but out of one of
the next adjoining counties. This cafe was determined
againft the college, that the crown was general vifitor.
William of Durham having given no fpecial vifitor, thefe
ingrafted fellows are eo nomine to be confidered as fellows
of the college.

The mode of donation is the law of it. If Dr Keton
had appointed a vifitor, and the college had accepted his
donation upon thofe terms ; his vifitor would take place :
but upon no other terms.

Dr Keton direcfts his fellows to be fellows of St. John's
college, but upon his foundation ; and he contrails, that
they fhall have the fame privileges and rights as founda-
tion fellows in the college ; and they are fo to all intents
and piirpofes, fave the proprietary right ; they are to be
elecSled as ihe other fellows of the college ; and Dr Keton
fays nothing of their manner of voting, their age, or
other qualifications ; but thefe are left to be determined
hy the old conftitution of the college ; and by that old
conllitution, the mafter and fellows are to elc(?l ; and if
they do wrong, the vifitor is the judge: nay further, they
>arc to fwcar to obferve the flatutcs of the college, which
then were, or then after fhould be made : that is, to ob-
ferve thefe ftatutes ; for Dr Keton gave none himfelf.
Had Dr Keton made any ftatutes contrary to thofe of the
college; his fellows muft have obeyed the ftatutes of the
college ; had he appointed a vifitor, it would have been
contrary to the ftatutes of the college. If there had not
been a word more in the deed, than making them fellows ;
eo nomine they would have become fellows of the body,
and as fttch fubjeft to all the ftatutes of the college.

This way of reafoning is not new: for my lord Hard-
wicke, in the cafe of the attorney general againft Talbot,
faid that the party was concluded by his own informa-
tion, from faying he was not a member of the college,
and as fuch fubjedt to the power of the vifitor. So here,
they are members of the college, equal in power and
every thing elfe with the fellows on the foundation.
And his lordfliip, in Green and Rutherforth^ held the fame ;
and faid it would be the fame as to all new donations.

And Sir John Strange (who aftifted the chancellor) was
oi opinion in that cafe, that new ingraftmcnts, unlcfs

particular

Coueges. 435

particular provifion was made to the contrary, are eo no-
mine part of the old foundation.

An obje£lion has been taken here upon the pawer of
diftrefs. T his objedtion would extend to a great many
cafes befides the prefent. Several foundations have been
made by indenture, in the fame manner as this is. Dr
Fifher's foundation in this college was made fo. And the
precedent being once fettled, it is not wonderful it fhould
be followed. They are provilions divcrfo intuitu. This
fpecificy by the power of the vifitor, is left to the college.
The diftrefs like the cafe of tenure by divine fervice, is
left to the common law. The diftrefs is an inadequate
remedy, the value of money between that time and this
confidered ; and it is not given to the perfon injured,
but to Dr Ketones heirs, and the chapter of Southwell.

The bifhop of Ely has a right, with refpe£t to the pro-
prietary qualification, to judge of the election of fellows.
And for thefe reafons, I am very clearly of opinion, there
is no ground for a prohibition in this cafe. Were this
matter to be determined upon the fecond queftion made,
it would introduce the greateft inconvenience and confu-
lion amongft all colleges.

If I had doubted, or had inclined that a prohibition
fhould go, I would have given the plaintiff leave to have
declared in prohibition. But as I have no doubt, I think
I ought not to put the promoter of the appeal to the ex-
pence of it; both out of juftice to the party, and aifo for
the fake of the precedent.

The juftices Denifon and Fofter were of the fame opi-
nion, Mr. juftice Wilmot being abf^nt.

10. In the thirteenth year of kijig Henry the fourth, Thearchbi/Tiop'e
happened the famous caufe between the archbiftiop of Can- g^'^erai power of
terbury, and the chancellor and pro6lors of the univerfity
of Oxford ; which was thus : Archbiftiop Arundel being
in his vifitation of the diocefe of Lincoln, came in his
way^to vifit the univerfity of Oxford, which was then
within the limits of that diocefe. The univerftty infifted
upon their exemption by papal authority ; and refufed to
fubmit to his vifitation. The archbiftiop urged a fen-
tence given againft them in this fame caufe by king Ri-
chard the fecond ; but in vain. They ftood upon their
exemption, and referred themfelves (in which the arch-
biftiop alfo agreed with them) to the king's judgment.
Tneir caufe was accordingly heard before the faid king
Hcnrv the fourth, and fcntcnce given for the archbiftiop
and his vifitatorial power over them. And this whole
F f 2 proccfs

436 Collegeif.

procefs and fentence, at the archbifiiop*s petition, was
ratliied and inrolled in parliament, to prevent any future
dlfputes upon that fubje^l. Rot, ParL 13 //. 4. num,
15. TFakis State of the Ch. 348.

Upon this, the archbiftiop of York put In his claim,
for the exception of the college called ^een-Hall in the
faid univerfity : The refult of which was this j that the
archbifhop of Canterbury in prefence of the king and of
the lords in the faid parliament, promifed, that if the
archbifhop of York could fufficiently (hew any privilege,
or fpecialty of record, wherefore the faid archbifhop oC
Canterbury might not ufe or exercife his vifitation of the
faid college, he would then abflain ; faving to him al-
ways the vifitation of the fcholars abiding in the faid col-
lege, according to the judgments and decrees made and
given by the faid king Richard the fecond, and the fiiid
king Henry the fourth. Id. ibid.

But this claim of the archbifhop of York feemeth to
have been frivolous ; feeing the exclufive right which he
infiRed on, was only in refpe^l of his being local vifitoF
of that college : for if the archbifhop of Canterbury had
otherwife a power of vlfitlng,. the founder of the college,
could not take it from him by his ftatutes^

Afterwards, in the 12th year of king Charles the iirfl,
this matter w^as again contcfled by both the univerfities
againft archbifhop Laud, who claimed a right of viftting
them jure metropolitico; and they pleaded, that the power
of vifiting them was in the king alone, as their founder.
This caufe alfo came to an hearing before his majefly in
council.

Yor: the archbifhop It was urged, that his power of vi-
fitation within his province is of common right, and as
ancient as the archbifhoprick itfclf ; that it is a general
power, and not over certain particular perfons, but over
clergy and people, in all caufes ecclefiaflical, and in all
places within his province, without exception: That if
the univerfities have any exemption, it is incumbent up-
on them to fhew it : That the exemptions (if any) which
they had by any bulls from the pope, were aboiifhcd by
the aft of parliament of :^8 H, 8. c. 16. and not plead-
able in any court : That this power of the archbifhop
doth no way trench upon the king's power ; but that the
king by himfclf or his commiflioners may vifit as founder,
and the archbifhop ncverthclcfs as metropolitan: That
the archbifhop's intention is not to vifit the flatutes of
the univerfity, or of any particular cgllege; but to vifk

metropgliticalK>

Colleges. 437

metroporitically, that is, to vifit the body of the univcr-
iity, and every fcholar therein, for his obedience to the
do£lrine and difcipline of the church of England, but not
to meddle with the ftatutes of colleges or^of the univcr-
fity, or the particular vifitors of any college.

For the univerfity of Cambridge it was urgedy that the
power of vifiting them of right belongeth to the king;
which is an exemption from any ordinary jurifdi£lion :
And for other exemptions, they had bulls from the pope,
and charters : That about the beginning of the reign of
king Richard the fecond, moft of their charters were
burned, by an infurrc^tion in the town ; but many of
them were confirmed to the time of Hen. 6. upon a fuit
made to the pope to give fome confirmation to their pri-
vileges, in regard their charters were burned ; whereupon
the pope granted a commiflion, and witnelFes were exa*
mined, which examination was a means to produce tv/o
ancient bulls, exempting them from metropolitical vifita-
tion, the one bearing date in the year 624, and the other
an 699.

For the univerfity of Oxford it was argued, that it wa^
an ancient univerfity, founded long before the conqueft,
and had as ancient privileges ; and by bulls from the pope
was ever exempt from the vifitation of any archbifnop, as
in his metropolitical right, but that the few vifitations
which had been made by any of the archbifliops were by
virtue only of their legatine power : That as none can
found an univerfity but the king, fo none hath power but
the king to vifit it : That indeed their ancient charters
are loft; but altho' there are no records fo old, yet there
are divers recitals in Edward the third^s time, which fliew,
that they had fome original grant of exemption ; and in
confirmation thereof, that there had never been, in fo
many hundred years, any vifitation made by any arch-
bifhop as being within his province.

Upon the hearing of the whole caufe, it was declared
by the king, with the advice of the privy council, that it
was granted on all hands, that the king had an undoubted
right to vifit the univerfities ; and that the archbifhop, in
the right of his metropolitical church of Canterbury,
had power to vifit the whole province, in which the uni-
verfities were fituated, and v/ere under the fame power,
unlefs they could (hew privilege and excmpticn : That
the exceptions then alledged, were not fuch as could giVc
fatisfa6lion : That they could be exempted by no papal
bull i and that they weje exempted by none of their char-
F f 3 . ters :

438 ColUsefi,

ters : That the long omifllon of the archbifliops to vlfit,
could be no prefcription to bar the right of the metropo-
liticalfee: That it appeared, that both univerfities had
been vifited by three archbifhops, jure mctropolitico, and
not by a legatine power : That this coming in queftion,
upon the refiftance of the univerfity of Oxford, it was,
upon full hearing of both parties, adjudged for the arch-
biftiop by king Richard the fecond, and afterward upon
the like hearing and re-examination by king Henry the
fourth ; and both of their judgments eilablifhed by a6l of
parliament, 13 Hen. 4. And the archbifhop produced
before his niajefty an original deed from the univerfity of
Cambridge to the archbifhop, under the hands of the
heads of houfes, containing a renunciation of all pri-
vileges from any pope, and wherein they bind themfclves
under the penalty of loco 1, not to oppofe the archbifliop*s
jurifdi(Slion : And this was in the 27 of Hen. 8. being a
vcar before the faid bulls were abolifhed by a6l of parlia-
ment.

So the king and council adjudged the right of vifiting
the univerfities, chancellors, fcholars, and all pcrfons
enjoying the privileges thereof, to belong to the arch-
bifhop and metropolitical church of Canterbur^'^, by him-
felf or his commiflary.

Whereupon the archbifhop made this motion to the
king : Firfl:, for himfelf, that his majefty would be gra-
cioufly pleafed, that he might have the fentence drawn
up by the advice of his majcfly's learned counfd, and
put under the broad feal, to fettle all differences that
hereafter might arife : Then on the behalf of both the
univerfities, that they fhould remain free and exempt
from the vifitation and jurifdidlioji of the bifhop of the
diocefe, or archdeacon.

[Note, the grounds of exemption from epifcopal vifita-
tion, whilft at the fame time they are fuppofed fubjecl to
the archiepifcopal, are not fct forth: This mult: be from
fome claufe of exemption in the univeifity charters, or
from fome reHriiSlive claufe in the foundation of the bifh-
opricks, efpecially of Oxford, where the epifcopal fee
was not ere6lcd until the latter end of the reign of king
Henry the eighth ; and even w4th refpeft to Cambridge
this might be the cafe, if that is true which is intimated
above, that the univerfity there is at leafl as ancient as
the year 624, for that was long before the erection of the
bifhoprick of PJy, which was taken out of the diocefe of
Lincoln about the year 11 11. — Or clfe the archbifhop

here

ConC0C5« 439

here mufl: have meant, that the king, as fwpreme head of
the church, and as vifitor of the unlverfities in right of
foundation, fjiould by his royal authority now eflablifh

it.] .

Furthermore, fince it was declared to be the arch-
bifhop's right to vifit metropolitically, and it was not
limited by law how often ; therefore the archbifhop mo*'
ved, that notwithftanding the laft cuftom of vifitation
was only once in the arclibifhop's time, he might by
himfelf or his commifTary vifit the univerfi-ties as often
as any great emergent caufe fhould move him ; provided,
thst neither he nor any of his fucceifors fhould, after the
firft vifitation, vifit upon fuch emergent caufes, unlefs it
be firft made known to his majefty and his fuccefTors.

All which was granted by the king, and fo fettled.

Laftly, whereas it was alledgcd, that the chancellors
of either univerfity were, and are like to be, perfons of
great honour and eminence, and therefore it might be in-
convenient, that they fhould be called to fuch vifitation ;
it was declared by his mijefty, that in the cburle of law,
the chancellor would be allowed to appear by his proxy.
2 Rujhw. Hiji. Coll. 324 — 332.

II. By the 7^8 IV, c. 37. Whereas it would be a Colieees feow
creat hindrance to learnino- and other eood and charitable ^^"^ '^^"^^^^ by

o, .- . n-'^i-i 1 -J the ll-atutes oi

works, ir perfons well inclmed may not be permitted to morcmam.
found colleges or fchools for encouragement of learning,
or to augment the revenues of colleges already founded,
by granting lands tenements rents or other hereditaments
to fuch colleges or fchools j it is enacted, that it fh^ill be
lawful for the king, when and as often as he fhall think
fit, to grant to any perfon or perfnis, bodies politick or
corporate, their heirs and fuccelTors, licence to aliene in
mortmain, and alfo to nurchafe take .and hold in mort-
main, in perpetuity or otherwifc, any lands tenements or
liereditanients whatfoever, of whomfoever the fame (hall
be holden.

And by the 9 G. 2. c. 36. which rcftraineth aliena-
tions in mortmain, it is provided, that the fame Ihall not
extend to make void the difpofitions of any lands tene-
ments or hereditaments, which fhall be made in other
manner and form than in this adl: is directed, to or in
truft for either of the two univerfitics, or any of the col-
leges or houfes of learning wichin the fame ; or to or in
trufl for the colleges of Eton, Wincheftcr, or Wtftmin-
'fter, for the better fupportand maintenance of the fcholars
only upon the foundations of the faid coiieiics of Eton,
F f 4 \Vincheiler,,

440 CDlleseg.

V/inchefter, and Wellminfter. Provided, that no fuch
collc'2;e or houfe of learning, which fhall hold or enjoy fa
piany adyowfons of ecclefiaftical benefices, as {hall be
equal in number to one nioiety of the fellows or perfon^
ufually flyled or reputed as fellows, or where there are
no fellows or perfpns ufually ftyled or reputed as fellows,
to one moiety of the ftudents upon the foundation ; fhall
be capable of purchafmg taking or holding any other ad-
yowfons of ecclefiaftical benefices by any means whatfo-
ever ; the adyowfons of fuch ecclefiaftipal benefices as are
annexed to, or given for the benefit or better fupport of
the heads of any of the faid colleges or houfes of learning,
not being computed in the number of advov;fons hereby
limited.
Collegeleafes. 12. 3y the 13 Eliz. c, lo. All College leafes, other

than for the term of twenty one years or three lives, fhall
be void. Provided, that this (hall not extend to make
goqd any Icafe for pnore years than are limited by the pri-
vate flututcs of the college.

By the 18 Eli%. c. 6. In all college leafes one third part
of the rent fliall be rcfervcd and paid in corn.

And there are divers other regulations concerning the
fame by the faid a£ls gnd by feveral other a6ls of parlia-
ment, Vw'hich falling in with the general law concerning
leafes made by corporations whether fole or aggregate,
the whole is treated oi together under the title llCttfCS*
Cemtr.iiTions of *3- ^X ^^^^ 43 ^^'^'^' ^' 4- ^^^'^^ch enaclcth, thatwhere-
ji'ou; uCes. as divcrs lands tenements rents annuities profits heredita-
ments goods chattels money and flocks of money have
been a/'Tigned by divers well difpofed perfops, as well for
the mainterance of fchools of learning, free fchools, and
fchohirs in the univerfitics, as for other pious and godly
purpofes J which neverthelcfs have not been employed
according to the charitable intent of the donors, by reafon
of frauds, breaches of trufl, and negligence in thofc that
fhould pay deliver and employ the fame ; in fuch cafe, the
lord chancellor may ifluc commifTions to inquire thereof,

and to t.ii;e order therein : it is provided, that nothing

therein fliall extend to any lands tenements rents annuities
profits goods chattels money or (locks of money, given
limited appointed or affigncd to any college hall or houfe
of learning within the univerfitics of Oxford or Cam-
bridge, or to the colleges of Wcflminfl:er Eton or Win-
clieflcr or any of them, or to any cathedral or collegiate
church i nor to any college, hofpital, or free fchool,

yv'bicli

ColUgeiS. 441

which have fpecial vifitors or governors or overfeers ap-^
pointed them by their founders.

14. By the 33 H. 8. c, 27. Albeit that by the common Elections ia col-
law all afients elections and grants, made and granted by ^^S".
the dean warden provoft maltcr prefident or other govern-
or of any college or other corporation, with the aflent of
the major part of the fellows or brethren of fuch corpora-
tion, be as effectual as if the whole number had aflented ;
yet neverthclefs divers founders of fuch corporations have
amongft other their local ftatutes eftablifhed, that if any
one of fuch corporation fhould deny any fuch grant, then
no fuch eleiStion or grant fhould be made, and for per-
formance of the fame every perfon having power of affent
hath been wont to be fworn : for remedy thereof it i$
enabled, that every ftatute made by any fuch founder,
whereby the grant or elecSlion of the governor or rulerj^
with the aflent of the more part of fuch corporation,
Ihould be in any wife hindred by any one or more being
the lefTer number (contrary to the courfe of the common
law), fhall be void ; and none {hail be compelled to take
an oath for the obferving of any fuch flatute, on pain of
every perfon giving fuch oath to forfeit 5I, half to the
king, and half to him that fhall fue in any of the king's
courts of record.

But fuch major part are to attend in perfon, and to be
prefcnt together, at the executing of fuch a6t ; and tho
aflent mufl: be given by each member flngly, artd not in
a confufed and uncertain manner ; and this muft be when
they are regularly aflembled in one certain place, and not
a confent given by the members in feveral places and at
feveral times. Gibf, 744.

And by the 31 EL c. 6. Whereas by the intept of tho
founders of colleges, churches collegiate, churches cathe-
dral, fchools, hofpitals, halls, and other like focietie^
vyrithin this reahn, and by the fl:atutes and good orders of
the fame, the elet5lions prefentations and nominations of
fellows fcholars officers and other perfons to have room or
place in the fame, are to be had and made of the fitteft
and mofl: meet perfons being capable of the fame eledlions
prefentations and nominations, freely, without any reward
gift or thing given or taken for the fame ; and for true
performance whereof, fome ele^Slors prefcntors and nomi-
nators in the fame have or fhould take a coporal oath to
make their eledlions prefentations and nominations ac-
fprdingly ; yet notv/ithftanding it is fccn and found by

experience^

442 Colleger.

experience, that the faid ele6lions prefentations and no-
minations be many times wrought and brought to pafs
with money gifts and rewards j whereby the fitteft perfons
to be eledled prefented or nominated, wanting money or
friends, are feldom or not at all preferred, contrary to
the good meaning of the faid founders, to the faid good
ilatutes and ordinances of thdfaid colleges churches fchools
halls hofpitals and focieties, and to the great prejudice of
learning and the commonwealth and eltate of the realm ;
for remedy thereof, it is enacted, that if any perfon which
hath ele6lion prefentation or nomination, or voice or afTent
in the choice eledlion prefentation or nomination, of any
fellaw, fcholar, or any ot|ier perfon, to have room or
place in any of the faid churches colleges fchools hofpitals
halls or focieties, fhall have receive or take any money
fee reward or any other profit directly or indiredly, or
fhall take any promife agreement covenant bond or other
aflurance to receive or have any money fee reward or any
©ther profit dire£lly or indire£lly, either to himfelf or to
any of his friends, for his voice afTent or confent, in elect-
ing chufing prefenting or nominating any officer fellow
fcholar or other perfon to have any room or place in any
of the faid focieties ; then, and from thenceforth, the
place room or office which fuch perfon fo offending fhall
then have in any the faid churches colleges fchools
halls hofpitals or focieties, fhall be void as if he were na-
turally dead. /. i, 2.

And if any fellow, officer, or fcholar of any of the faid
focieties, or other perfon having room or place therein,
fliall dire£lly or indirectly take or receive, or by any de-
vice or means contraCt or agree to have or receive, any
money reward or profit whatfoever, for the leaving or
rcfigning up of the fame his room or place, for any other
to be placed in the fame ; he fhall forfeit and lofe double
the fum of money, or value of the thing fo received and
taken, or agreed to be received and taken : and every
perfon by whom, or for whom, any money gift or reward
as aforefaid fhall be given or agreed to be paid, fliall be
uncapable of that place or room for that time or turn.

And for the more fmcere elcdlion choice prefentation
and nomination of fellows, fcholars, officers, and other
perfons to have room or place in any of the faid churches,
colleges, halls, fchools,' hofpitals, and other the like
focieties ; it is further cnaCted, that at the time of every
fuch election prefentation or nomination to be had, as

well

Colleges. 443

well this prefent a£l, as the orders and {latutes of
the fame places, concerning fuch eleiSlion prefentation
or nomination to be had, ihall then and there be pub-
lickly read : on pain that every perfon in whom default
thereof fhall be, fhall forfeit and lofe the fum of 40 1,
half to him that fhall fue, and half to the ufe of the fo-
ciety. f. 4.

15. Several founders of colleges have, in their ftatutes Preference glvea
for the government of the faid colleges, given a certain *° ^'°""<*"'5
degree of preference, in the ele6lion of fcholars or others
to thofe of their own blood. Concerning which there
hath been much difpute. It is contended on one fide^
that by length of time all relation of kindred muft ne-
ceffarily wear out ; on the other, that this cognation flill
fubfifts, and may fubfitl: indefinitely. On behalf of thofe
who claim as kinfmen (altho* from the time of the foun-
dation of the refpective colleges they may be fuppofed to
be not nearer now than the tenth, twelfth, or perhaps
£fteenth degree from the common anceftor by whom they
deduce their relation to the founder) it is urged, that no
length of time can utterly extinguifh their kindred ; that
no limits have ever been fet to confanguinity by any law
whatfoever ; particularly, that by the municipal laws of
this realm, in the fucceflion to inheritances, no boundary
is limited, but lands defcend to the heirs of the firft pur-
chafer in infinitum ; and that by the college ftatutes no
limitation is intended, being general, in this or the like
form — " Volumus, quod in omni elecStione fcholarium,
*' futuris temporibus facienda, principaliter et ante om-
** nes alios, illi qui funt vel erunt de confanguinitate
** noftra aut genere, fi qui tales fmt, ubicunque fuerint
** oriundi, dum tamen fmt reperti habiles et idonei, fe-
*' cundum conditiones fuperius et inferius recitatas, fine
•' aliquo probationis tempore &c. eligantur." It is con-
tended, on the other hand, that it is abfolutely ncceffary
that fome limitation fhould be fixed, otherwife fuch fta-
tute muft defeat its own intention. As all collateral con-
fanguinity confifts in being derived from one common
parent, if this confanguinity knows no bounds, all man-
kind are without doubt kinfmen, bccuufe derived from
the fame original anceftor. As for inftance, the common
ftock of the founder and his nephew is the founder's fa-
ther ; the common ftock of the founder and his coufin
gcrman is the founder's grandfather ; of him and his fe-
cond coufin is his great grandfather ; and fo on : all thefe
are confefTedly his kinfmen, and yet all derived from dif-
ferent

444 Collcffesf*

IJerent common flocks. But unlefs there be fome period
to flop at, by the fame rule that the common {lock may
be afTumed three generations above either of the related
parties, it may be afllimed three hundred ; we may afccnd
to Noah, or to Adam, and make him the ftirps of uni-
verfal confanguinity. — That by the civil law, all notion
ofconfanguinity is extinguifhed, at the furtheft after the
tenth degree. Similar to which is the law of fucceffions
eftabliflied by the prefent king of Pruilia ; who in his code
lays it dovv'n as a rule, that " there (hall no longer after
*' the tenth degree be the leaft regard paid to kindred,
*' in refpedl to a fucceffion ab Intejiato^ but the inheri-
*' tance fhall be reputed vacant, and fall to the king'j
*' exchequer." — That by the canon law, which regards
chiefly the prohibitions of marriage, confanguinity extends"
no farther than the feventh degree. And as marriage
with one^s kindred is prohibited generally, it was necef-
fary to ftop fome where, or elfe the kindred in this, as
in the college cafe, wou4d be univerfal. For the blood
of the common anceftor, wherein confifls the relation, is
by a multitude of defcents fluiced into fo many different
channels, and mixed with fo many other bloods, that it
can be no longer diftinguiftied. Every man has in the
firft afcending degree two anceftors; in the fecond, four;,
and, by the fame rule of progreffion, in the feventh, 128 ;
in the tenth, 1024 ; and in the twentieth^ above a mil-
Kon ; and has, confequently, as many bloods in him as
he hath anceftors ; and therefore muft needs have but a
very minute portion of the blood of a remote anceftor.
A perfon, for inftance, one of whofe anceftors in the
fifteenth degree is the founder's father, has 32767 other
anceftors in the fame degree ; that fhare of his blood
therefore, which he derives from the founder's father, is
only one 32768th of his whoJe mafs; a proportion which
cannot be imagined to intitle the pofTeflbr of it to any
fpecial fhare of aftedion from the reft of the defcendants
of the fame anceftor. — That by the municipal laws of
this realm, the unlimited fuccefnon to the inheritance re-
fpeiSts only the perfon who is next of kindred, and not
who is of kindred in general ; and therefore the cafe of
founder's kinfmen is not parallel to this ; for if it were,
the next of kindred only could be intitled, who would
exclude all the reft. — That as to the ftatute which re-
quires that in every election to be made in future timCsS,
a principal regard be had to the founder's kindred,
A there

Colleges; 44-5

there is in the faiiie claufe si limitation, ** fi qui tales
** fint."

In the cafe of Winchcfter college, and of New cdJlcge
in Oxford, both of which were founded by Williacn of
Wykeham, an inconvenience arifing, about 200 years
after the foundation, from the growing number of foun-
ders kinfmen, the college of Winchefter rejedled a claim-
ant. The claimant's father thereupon applied (as the
manner then was) to the court of chancery, and not to
the vifitor, for relief. And after a folemn hearing, 30
Jan. 22 Eliz. in the year 1579, it was recommended by
the lord keeper Bromley, and afTcnted to on ail fides, for
the difficulty of judgment to be given, and it was fo de-
creed, that the plaintiff's iflue, for four defccnts, fhould
be admitted as if they were founder's kinfmen, and that
lie fliould renounce all farther claim to the blood of the
founder : which renunciation was made accordingly.

About ten years afterwards, the fathers of two other
rejedled candidates applied to the fame tribunal for a fimi-
lar relief. Whereupon the lord chancellor Hatton,
*' gravely confidering, that the publick benefit of the
*' realm, for the education of fcholars in learning (chiefly
*•' intended by the founder) would greatly be hindred, if
*' every of the children of the faid complainants (allowmg
*^ them to be of the undoubted blood of the founder)
*' (hould be admitted into the faid colleges, being many
** in number, and in a fliort time likely to fpread and
'^ grow into more generations, fufficient of themfelves
** to fill the number of both colleges," — referred the
whole to bifhop Cooper, who then fat in the fee of
Winchefler, and, as fuch, was the vifitor of both focie-
ties. The bifhop, having duly confidercd the cafe, in
order to (hew a grateful remembrance of (o v/orthy a work
as the founding of two colleges, declares himfelf willing
to pay a regard to fuch as even feem to be of the foun-
der's blood, " fo that the fame tend not to the annoying,
** difturbance, or prejudice of the faid foundations ;
^ which the founder undoubtedly meant to make for the
*' publick benefit of the whole realm, and not to be
*' appropriated and made peculiar to one ^nly kindred
*' and family." He then f^ates the vaft increafe of tht
claimants, whereby he cbfcrves " that if it be not in
*' wifdom forefccn, the number of fcholars in both col*
*' leges is like to be fully fupplied by fach reputed kinf-
*^ men, be they apt or not apt to be brought up in
•^ learning i fo that the publick benefit intend^ by ths

*' founder

446 Colleges.

•* founder would be fruflrated." He afterwards remarks
(what is equally true of every other anticnt college) that
the revenues of the fociety had been much augmented by
other benefa6lors, Grangers to the founder's blood, who
could never intend to confine their bounty within fuch a
partial channel. " In confideration whereof, and for
^^ avoiding fuch inconveniences as might come, if one
*' blood and kindred Ihould have both colleges in their
" polfeffion and regimen," he declares the founder's in-
tention to have been, that the education of fcholars ifhould
more largely extend than to his own kindred, and yet
that fome convenient regard fliould be paid to thofe of
his undoubted blood : and therefore the bifhop diredls,
that there fhall not be at one time above the number
of 1 8 reputed kinfmen in the two colleges (which
confift in the whole of 140 fcholars) to wit, 8 in
New college, and 10 in that of Winchefter; and that
not above two fhall be admitted at any one eledlion into
either college.

At the diltancc of near 50 years, this matter was again
reconfidered, on a petition (as it feems) to the king in
perfon. For there is extant an order dated the 31 Jan.
1637, made by the archbifhop of Canterbury, the earl of
Arundel and Surry carl marlhal, and the bifhop of Win-
chefter, to whom it was referred by the king to confidef
of the claim of another Wykeham. This they determine
to be groundlcfs ; founding their opinion on the decree of
the 30 Jan. 1579 j and alfo on the great inconvenience
that would follow, if the " founder's confanguinity fhould
*' be fo exceedingly multiplied as it would be, to the ab-
'' folute reftraint of the freedom of elcif^ions, if fuch
*' claims were admitted."

In the year 165 1, during Cromwell's ufurpation, the
fame queftion was again brought before the committee of
the houfe of commons, for regulation of the two univcr-
fities, and the colleges of Elatou and Winchefter, pro-
bably with a view to re-eftablifh the unlimited prefe-
rence of kindred ; but all they could obtain was, an or-
der for augmenting the number of i8 kinfmen, cflablijQi-
ed by bifhop Cooper to 20 in both focieties ; with a
provifo that if more than twenty had already crept in,
no more fhould be admitted till the number was reduced
to twenty.

Neverthelefs, at this day, it mufl be acknowledged,
by whatfocvcr means it hath happened, that though the
annual rtftridtion of two in the (aid colleges continues

3 ^^

CoUeses* 447

in ufe, yet the total reftri(Slion of i8 (or 20) has fallen
into oblivion.

And as the limitation of number in the faid colleges hath
been attempted, fo in the college of All Souls in the faid
univerfity, founded by archbifhop Chichele in the year
1438, it hath been endeavoured to obtain a limitation
in the degrees -y for the reafons above expreiTed, But in
the cafes that have been determined by the fcveral vifitors,
no certain boundary hath been yet eftabliflied ; the fame
having been adjudged on the particular circumflances of
each cafe. Blackji. on Collateral Confanguinity ,

So that it feemeth ftill to remain a matter o^ great
doubt. For, as on the one hand, it could never be the
founder's intention to fill the college wholly with his
own kindred 3 fo, on the other, as he himfelf has been
filent in that refpe6t, it is difficult to fay, at what precife
period his particular regard to his own family and rela-
tions, however diftant, fhould entirely ceafe. A limita-
tion in point of number, feemeth to be moft appofite, as
was dire61:ed by bilhop Cooper in the cafe of Wyjccham's
foundations, in fomc kind of proportion to what may be
fuppofcd, or from the regifters of the refpedtive colleges
may appear, to have been in the founder's days, or with-
in an age or two afterwards ; for fo the founder's whole
inftitution will take efFe«St : that is, far the greater part
of the fociety will confift of perfons elected out of the
publick at large, or othcrwife according to the reftr:6lions
of the refpcd:ive foundations ; and at the fame time a rea-
fonable regard will be had to thofe w^ho can prove them-
felves of the founder's kindred \ altho' it muft he owned,
at this day, that the proportion is fcarcely fo much, as
of one drop of blood to the whole mafs.

There is in human nature 'la defire of immortality,
which expands itfelf without limitation even in this life.
Every man wifhes to live in his poflerity, and to tranf-
mit his inheritance to them at whatever diftance. And
thofe pofterity, on the other hand, glory in deriving their
pedigree thro' a long feries of anceftors ; and the higher
they can afcend, the more honourable it is eftecmed.
Even that excellent author, from whom the above ftate
ot the cafe is taken, who argues iiicontcftibly for the ne-
ceffity oifome limitation, yet in his dedication of the char-
ters compliments his patron, on being '' the defender of
*' thofe liberties of v/hich his anceftor at-tcfted the exc-
*' cution :" which atteftation, was long before the foun-
dation of any of the colleges v/hercin the prefcfit qucf-

tion

448

Colleges-

Perfbfls clefted
to fubfcribe the
declaration of
conformity.

tion IS agitated. Man)* rtoble families Of this kingdom
boaft of their defcent from fomc of thofe heroes who camft
in with the Norman invader. The inhabitants of Wales
afcend further, into the Saxon period j when their pro-
genitors chofe rather to lofe their country than their li-
berty : And they ftill endeavour to preferve their genea-
logies, altho' the reafon thereof (as it feemeth) hath been
long fince forgotten j which moft probably was, that up-
on their return each man might be able to deduce his title
to his own eftate. 7'he Jews, for a longer term, have
been felicitous to keep up the diftindion of their tribes ;
partly, for a like reafon ; and partly, that they may be
able to afcertain the defcent of their expected Meffiah*
The Scots, in the time of king James the firft of England j
flattered that prince on his being the io8th king of Scot-
land lineally defcended of one ftock ; which, according to
a reaibnable computation, would carry us up almott as
far as the days of Solomon (the great anceftor of that
monarch, as one would be tempted to conclude from the
court writings of thofe times). — And the more chimerical
fuch calculations may be, fo much the more they demon-
ftrate the honourable efteem entertained thereof by man-
kind, where they are real.

16. By the 13 b' 14. C 2. c 4. and the i Z/^. fejf. i,
c. S, f. II. All mafters, and other heads, fellows, chap-
lains, and tutors of or in any college, hall, hoiife of
learning, or hofpltal, and every publick profefTor and
reader in either of the unlverfitics and in every college
clfewhere, who fliall be incumbent or have pofldffion of
any mafterfhip, headfliip, fcllowfhip, profcfTor's place,
or reader's place, fhall at of before his admiflion, fub-
fcribe the declaration or acknowledgment following, be^
fore the viccchanccllor or his deputy : " I A B do de-
'' clare, that I will conform to the liturgy of the church
*^ of England, as it is now by law eftablifhed *' : Upon
pain, that every of the perfons aforefaid failing in fuch
fubfcription, {hall lofe and forfeit fuch rcfpe6tive mafter-
fhip, hcadlhip, fellowship, profeflbr's place, or reader's
place ; and fliall be utterly difablcd, and ipfo fa£to de-
prived of the fame ; and the fame fhall be void, as if
fuch pcrfon fo failing were naturally dead.

But by the 2? G. 2. ^. 31. / 8. Perfons who had omit-
ted to fubfcribe the fame before the viccchanccllor as
aforefaid, were indemnified ; provided they fhould then
Aibfcribc before Dec. 25. 1729.

17. By

Colleges* 449

17. By the aforefald flatut;; of the 13 & 14 C. 2. c. 4. Heads of colleges
Every governor or head of any of the faid colleges or ^" ^"^'cribe aifp
halls, fhall within one month next after his eledtion or an^ ?he\^oo'k"of
collation and admiffion into the farhe government or head- common pia^er.
(hip, openly and publickly in the church chapel or other

publick place of the fame college of hall, and in the
prefence of the fellows and fcholars of the fame, or thfe
greater part of thern then refident, fubfcribe unto the
thirty ninfc articles and to the book of common prayer,
and declare his unfeigned alTcnt.and confent unto and ap-
probation of thfe faid articles and of the fame book, and
to the ufe of all the prayers rit^s and ceremonies forms
and orders in thfc faid book prefcribed and contained ac-
cording to this form following ; "I A B do here declare
*' my unfeigned ail'ent and confent to all and every thing
*' cdntainecTand prefcribed in and by the book, intituled,
*' The hbok of common prayer and adniiniflration of the
*' facrafnents and other rites and ceremonies of the church,
** according to the ufage of the church of England ; to-
'^^ gether with the pfalter or pfalms of David, pointed as
*' they are to be fung or faid in churches ; and the forni
'' or manner of making ordaining and confecrating of
*^ bifhops priefts and deacon^ :" And all fuch governors
or heads of the faid colleges and hulls, or any of them,
as fliall be in holy orders, fliall once at leaft in every
quarter of the year (not having a lawful impediment)
openly and publickly read the morning prayer and fervice
m and by the faid book appointed to be read, in the church
chapel or other publick place of the fame college or hall :
iJpon pain to lofe and be fufpended of and from all the bene-
fits and profits belonging to the fame government or head-
fhip, by the fpace of fix months, by the vifitor or vifitors
of the fame college Or hall ; and if any governor or head
of any college or hall, fufpended for not fubfcribing unto
the faid articles and book, or for not reading the morn-
ing prayer and fervice as aforefaid, fhall not at or before
the end of fix months next after fuch fufpenfion fubfcribe
unto the faid articles and book, and declare his confent
thereunto as aforefaid, then fuch government or head-
(hip fhall be ipfo faclo void. / 17.

18. By the i G,JI. 2. c 13. All heads and members And all of them
of colleges, bein<> of the foundation, or havino- any cxhi- '° J^^*^ ^}'^ .

... °r • I ° c 1 11 r ^ •>' oaths, and make

bition, of eighteen years of age ; and all pcrlons teaching the fnbf.ritions,
pupils 'y and all pcrfons in general admitted to any office ^s other penQm
in any fuch college, ecclcfiafticai or civil ; fhall (within J^'^;^^,^'"* ^''*
fix months after their admiffion, ^G, 2. c. 26. / 3.)''
Vol. I, G g tkkc

450 Colleges.

take and fubfcribe the oaths of allegiance, fupremacy, and
abjurarion, in one of the courts at Weftminfler, or at
the general or quarter feiTions of the peace : On pain of
beins difabled to fue or ufe any a£tion ; or to be guardian
executor, or adminiftrator j or capable of any legacy or
deed of gift; or to be in any office 3 or to vote at any
election for members of parliament; and to forfeit 500 1
to him who (hall fue. And if any fuch head or member,
being of the foundation, or having any exhibition, of
eighteen years of age, fhall neglect or rcfufe to take and
fubfcribe the fame, or to produce a certificate thereof un-
der the hand of fome proper oificer of the refpe£tive court,
and caufe the fame to be ePxtred within one month in the
jegifter of fuch college or hall ; and if the perfons in
whom the right of election {hall be, fhall neglccl or re-
fufe to ele^ another for the fpace of twelve months, the
king fhall nominate to fuch place vacant ; and if the per-
fon lawfully authorized to admit, fhall negle£t or refufe
to admit fuch perfon fo nominated by the king for the
fpace of ten days, the local vifitor fhall admit him within
one month ; and if he fhall refufe, the king's bench may
compel him by mandamus.

And if it is a civil office (not ecdefiajlical)^ they fhall
moreover, by the 25 C. 2. c. 2. on the like pain as afore-
faid, within three months after their admifTion, receive
the facrament in fome publick church on the lord's day,
immediately after divine fervice and fermon ; and, in the
court where they take the oaths, fhall firfl deliver a cer-
tificate of fuch their receiving, under the hands of the
minifter and churchwarden ; and fhall then make proof
of the truth thereof by two witnefTes : And fhall alfo,
when they take the fald oaths, make and fubfcribe the
declaration againfl: tranfubflantiation.

But there is an indemnifying claufe in fome act of par-
liament every two or three years ; provided they comply
* ' l^ithin a time therein limited.
Cammamfrrjtx ■ 1 9- By the fame flatute 13 ^ 14 C. 2. r. 4. No form
nuy be okd in ox order of common prayers, adminiftration of facramentsji
rite? or ceremonies, fhall be openly ufed in any church
chapel or other publick place of or in any college or hall
in either of the univerfities, the colleges of Wcflminftcr,
Wincheflcr, or Eaton, or any of them, other than what
is prefcribcd or appointed to be ufcd in and by the book

of common prayer : Provided that it fhalj be lawful

to ufe the morning and evening prayer, and all other
praters and fcrvicc prefcribcd in and by the faid book, in

the

Colleges. 45 «

the chapels or other publick places of the refpeclive col-
leges and halls in both the univerfities, in the collei2;es of
Weftminfter Winchefter and Eaton, and in the convoca-
tions of the clergy of either province, in latin, f. ij, 18.
(It is not faid, of what tranflation.)

20. And by the fame ftatute, at all times when any Common pnyet
fermon or lecture is to be preached, the common prayers before fermon*
and fervice in and by the book of common prayer appoint- °' icfture*.

ed to be read for that time of the day, fnall be openly
publickly and folemnly read by fome priefl: or deacon, in
the church chapel or place of publick worfhip where the
faid fermon or lecture is to be preached, before fuch fer-
mon or lecture be preached ; and that the lecturer there
to preach fhall be prefent at the reading thereof : ■ -

Provided, that this ihall not extend to the univerfity
churches in the univerfities of this realm, or either of
them, when or at fuch times as any fermon or lecture is
preached or read in the faid churches or any of them, for
or as the publick univerfity fermon or ledture ; but that
the fame fermons and lectures may be preached or read,
in fuch fort and manner as the fame have been heretofore
preached or read. /. 22, 23.

21. By Can. 16. In general ; in the whole divine fer- Divine fervice la
vice, and adminiftration of the holy communion, in all general,
colleges and halls in both the univerfities, the order form

and ceremonies fhall be duly obfer\ed, as they are fet
down and prefcribed in the book of common prayer,
"without any omiifion or alteration.

22. By Can. 23. In all colleges and halls within both The holy com-
the univerfities, the mafters and fellov/s, fuch efpecially muQi*ia«

as have any pupils, (hall be careful that all their faid
pupils, and the reft that remain amongft them, be well
brought up, and throughly inftru6ted in points of religion ;
and that they do diligently frequent publick fervice and
fermons ; and receive the holy communion, w^hich we
ordain to be adminiftred in all fuch colleges and hslls the
firft or fecond funday of every month ; requiring ail the
faid mafters fellows and fcholars, and all the reft of the
ftudents, officers, and all other the fervanrs there, fo to
be ordered, that every one of them {hall communicate
four times in the year at the leaft, kneeling reverently
and decently upon their knees, according to the order of
the communion book prefcribed in that behalf.

But by the rubrick in the book of common prayer, in
cathedral and collegiate churches, where there are rr.any
priefts and de.»cons, they fhall all receive the communion

G g 2 with

452

Colleges.

with the prieft every funday at the leafl, except they have
a realbnable caufe to the contrary.

- 23. By Ca?i, 17. All mafters and fellows of colleges
hoeds on foiemn or halls, and all the icholars and ftiidents in cither of the
^'"1^- univerfities, fhall in their churches and chapels, upon all

fundays holidays and their eves, at the time of divine fer-
vice, wear furplices, according to the order of the church
of England ; and fuch as are graduates, fhall agreeably
wear with their furplices fuch hoods as do fevctally apper-
tain unto their decrees.

Oath5tobeta- 24. By the I Eli%. c, 1, /. 2^. and the i W, c. 8.

I'o deg"e«?'^'°" Every perfon before he fiiall be preferred to any degree of
learning in either of the universities, fhall take the oaths
of allegiance and fupremacy, before the chancellor, vice-
chancellor, or their fufficient deputy.

25. By the feveral flamp ads ; for every fkin or piece
of vellum or parchment, or fheet or piece of paper j on
which any matriculation in the univerfities fhall be writ-
ten or ingrolfed, fhall be paid a double 12 d ftamp duty.

And for the regifter, entry, teftimonial or certificate of
a degree in the univerfities (except the regifler or entry
of a bachelor of arts) fhall be paid a duty of 40 s.

26. By the 8 An. c. 19. Nine copies (on the bed pa-
per) of every book v/hich fhall be printed and publifhed,
or reprinted and publifhed with additions, fhall by the
printer be delivered to the warehoufe-keeper of the com-
pany of flationers, at the hall of the faid company, before
publication, for the ufe of the royal library^ the libraries
of the univerfities of Oxford and Cambridge, of the four
univerfities in Scotlan3, of Sion college in London, and
of the faculty of advocates in Edinburgh ; who fhall with-
in ten days after demand by the keepers of the faid re-
fpecStivc libraries, or any by them authorized, deliver the
fame for the ufc of the faid libraries : and if any proprie-
tor, bookfcller, or printer, or the faid warehoufe-keeper
fhall not obfervc the directions of this a6t, he fhall forfeit
to the faid rcfpcd'tive focieties the value of fuch printed
copy, and alfo 5I, with full coifs.

And by the iiratutcs which impofc a duty upon paper;
books printed in the univerfities in the latin, greek, ori-
ental, or northern languages, fliall have a drawback of
the faid duty.

27. By tlie 13 b* 14 C. 2. c. 39. (which after feveral
continuances expired in the year 1692) it was enabled,
that no private perfun whatfoever ihould print or caufe to
be printed any book or ^>amphlet, unlcfs rtiC fame fhould

2 be

ColUges. 453

be firft entred in the book of the regifter of the company
of ftafioners in London; except acSls of parliament, pro-
clamations, and fuch other books and papers as fhould be
appointed to be printed by virtue of the king's fign manu-
al, or under the hand of one of the fecretaries of flate ;
and unlefs the fame fhould be firft licenfed by the feveral
perfons therein direded; that is to fay, all books con-
cerning the common law were to be printed by the allow.^
ance of the lord chancellor, the lords chief juftices and
lord chief baron, or one of them ; of hiftory concerning
the flate of this realm, or other books concerning any
affairs of fbte, by one of the fecretaries of flate ; of heral-
dr)^, by the appointment of the earl marfhal, or if there
fhould be no earl marfhal, then by two of the kings of
arms ; all other books, whether of divinity, phyfick,
philofophy, or other fcience or art whatfoever, by the
archbi/hop of Canterbury, or blfliop of London, or by
their appointment refpedively ; or, in the univerfitics,
by the chancellor or vicechancellor there, provided that
the faid chancellors or vicechancellors fhould not meddle
either with books of common law, or matters of ftate
or government, nor any book the right of printing whercr-
of folcly and properly belonged to any particular perfon.
And the printers were to fet their names, and declare the
name of the author if required. — But .there was a provifo
neverthelefs, that nothing therein fhould extend to in-
fringe any the juft rights and privileges of either of the
faid unrverfities, touching the licenfmg or printing of
books therein; nor fhould extend, to prejudice the juft
rights and privileges, granted by the king or any of his
royal predeceiTors, to any perfon or perfons, under the
great ieal or othcrwife, but that they might exercife fuch
jights and privileges according to their rcfpecllv grants.

During the time that this a(5t v/a« in force^'"iid> ral cafes
happened, which it is not neceHary here to^o^ te; both
becaufc the determination thereof proceeded under the in-
fluence of this a<51:, and alfo becaufe they are all taken
notice of in the following report : viz.

M. ^i G. 2. Between Thomas Bafkett and Robert
Pafkett, adminiftrators with the will annexed of John
Bafkett, plaintiffs ; and the chancellor mafters and fcho-
lars of the univerfity of Cambridge, Jofeph Bentham,
and Charles BathurR, defendants.

Whereas by an order made on thchearrng of this caufa

in the high court of chancery the 24th day of Jan. jj^^jy

^y the right honourable the lord hiQ;h chancellor of great

G g 3 Britain,

454 Colleges,

Britain, his lordfhip was pleafed to order that a cafe fhduld
be ftated for the opinion of the judges of the court of
king's bench, upon the feveral a£ts of parliament, letters
patent, and grants of the crown infifted on by either fide
in this caufe, and any other letters patent appearing on
record relating to the matters in qucftion between the par-
ties; — the feveral letters patent infifted on by the plain^
tifts in fupport of their claim were thefe ;

I Ed. 6. Apr. 22. Letters patent to Richard Grafton,
for the printing of all and fmgular ftatutes, books, a£ls,
proclamations, injundVions, and other volumes whatfoever
[omniu' et fingulor* ftatutor' libror' aft' proclamaconu'
iniunconu' et alior' volumiu' quorcunq'] by the king his
heirs or fuccefibrs publifhed or thenafter to be publilhed,
in the englifh tongue, or in the englifh and any fo^
reign tongue mixed together ; except the rudiments of
the grammar of the latin tongue : During the life of th^
laid Richard Grafton, with the fee of 12 d a year; and a
further grant to the faid Richard Grafton of an annuity
of 4I 5 to hold and receive the fame immediately after the
death of Thomas Bertlett late printer to king Henry the
eighth. With a claufe prohibiting all others, during the
faid term, to print or caufe to be printed any volume or
volumes, work or works, by his faid majefty his heirs or
fucceflbrs in englifh or in englifh and any foreign lan^
guage mixed, thereafter to be publifhed,

I M^y. Dec. 29. The faid office being vacant by the
furrender of Richard Grafton, the queen grants the fame
to John Cawood, nearly in the fame words ; to wit, to
print " all and fmgular ftatutes, books, a6ts, proclama^
" tions, injunftions, and other volumes and things what^
^' foever, by the queen then pubjifhed, or by her, her
" heirs ''^J fuccefTors thenafter to' be publifhed," during
the life r 1-^^ 1>Aiid John Cawood.

I Eli/ ^^"^ur. 24, The queen grants to Richard Jugge
and John Cawood the office of her printers of " all and
^' fmgular ftatutes, books, pamphlets [libellor'], afts of
^' parliament, proclamations, injunctions, and books
f* which by the queen /^r the fervlce of god {hould be conn-
^' Wianded to be ufed in chijrchcs, and of other volumes
^' and things whatfoever by the parliament then publifhed
*' or priiited or thenafter to be publifhed or printed, (ex-
♦' cept the rudiments of the grammar as before excepted ;)"
during the Jives* of the faid Richard Jugge and John Ca-
Vroodj and the life pf the longer livej: of them, if it fliould
4 (^

Colleges. 455

fo long plcafe her majefty. With a prohibitory claufe as
above.

19 Eliz. Sept. 27. The queen grants the faid office to
Chriftopher Barker, in this form : viz. to print *' all
" and fingular ftatutes, books, pamphlets, ads of par--
*' liament, proclamations, injundions, bibles and new
** tejiatnents in the englifti tongue of any tranflation with
*' notes or without notes thentofore printed or thenafter
*' by the queen's command to be printed, and all other
*^ books whatfoever which the queen for the fervice of
*' god had commanded or (hould thenafter command to
*' be ufeJ in churches, and all other volumes and things
*' whatfoever by the parliament then publifhed or then-
'^ after to be publifhed or printed;" during the life of
the faid Chriftopher Barker : Prohibiting all others as be-
fore.

31 Eliz. Aug. 8. The queen grants to Robert Barker,
fon of the faid Chriftopher, the office of printing " all
" and fmgular ftatutes, books, pamphlets, acls of par-
*' liament, proclamations, injundions, bibles and new
'' teftaments in the englifti tongue of any tranflation
*' with notes or without notes th.ntofore printed or then-
" after by command privilege or authority of the queen
" her heirs or fucceflbrs to be printed, and all other books
*' whatfoever which the queen for the fervice of god had
*' commanded or which ftie or her fucceflbrs ftiou Id then- •
*' after command to be ufed in churches, and all other '
** volumes and things whatfoever by the parliament then
*' publiflied or printed or thenafter to be publiftied or
*' printed :" To hold to the faid Robert Barker and his
afligns, by themfelves or their fufficienc deputies, imme-
diately after the deceafe of the faid Chriftopher Barker,
during the life of the faid Robert Barker. And the faid
queen doth thereby alfo further grant to the faid Robert
Barker during his life, privilege and power of printing
*^ all and all forts of abridgments of all and Angular fta-
*' tutes and avSls of parliament whatfoever before that time
'* publifhed or thenafter to be publifhed". With a pro-
hibitory claufe as before.

I James i. May 10. The like is granted, with little
variation (only inftead of bibles and new teftaments in the
englij}) tongue^ it is expreflfed in the englijh or any other tongue)^
unto Chriftopher Barker the fon of Robert -, to hold to
the faid Chriftopher Barker, immediately after the death
of ^he faid Robert his father, during the life of the faid
Chriftopher. With the like claufe prohibiting all others
^ before.

G g 4 14 James

45^ Colleges.

14, James i. Feb. ii, The Ijke grapt as the laft with-»
out variation, to Robert Barker fon of the faid Robert;
to hold during the term therein mentioned.

3 Charles i. July 20. King Charles the firft grants t9
Bonham Norton and John Bill (affignces of the Barkers)
the office and power foUy io print all and fingular procla-
mations, ftatutes, and a^s of pGrUament thentoforc made
or thenafter to be made, with all quotations or notes or
indexes whatfoever in the margin or in any other place of
the faid ftatutes, and to the fame or ^ny of them fixed or
annexed ; and all and fingular ahrulgments of the faid Jl<i*
iutes or a^s ofparliainent or any of them, at any time tben-
tofore made and paffed, or thenafter to be made and palTed ;
alfo all and fmgular h'lhles and new teJJaments whatfoever,
in the englifh language, of ajiy tranflation, with annota^
tions or notes or without, thentofore by his comrnand
publifbed or printed, or thenafter by command of the
king his heirs or fucceiTors to be publiflicd or printed, in
any volumes, whatfoever, to be u(ed in churches or elfe-
"where ; and alfo all and fingular hQ.Qks of comrnon prayer
and adminiftration of the facraments and other rites and
ceremonies of the church of England. With a likeclaufe,
prohibiting all others to print the fame, during the refpec-
tive terms therein mentioned.

11 Charles i. Sept. 26. A like grant to Charles Bar-
ker and Matthew Barker, foiis oi the aforcfaid Robert ;
for a further term of 30 years.

2y Charles 2. Dec. 24. A likegrant to Thomas New-
combe and Henry Hills ; for thirty years from the expira-
tion of the feveral former terms.

12 Anne. Oct. 13. A like grant to Benjamin Tooke
and John Barker ; for the further -term of 30 years.

Note, the feveral letters patent, terms and ellates of
and in the faid office, precedent to the faid letters patent
pf the i2th of queen Anne, expired on Jan. 10. 1739.
And at that time, the eflate and intereft by the faid letters
patent granted to Benjamin Tooke and John Barker, by
ieveral mefne affignments afterwards became vefted in
John Bailcctt the father of the now plaintiffs and fmcc
dead, and is now vefted in tiie plaintiffs as adminiftrators
to their faid father with his will annexed. And the
plaintiffs have been fworn and admitted into the faid office
of his majcfly's printers.

The plaintiffs, and other printers to liis majefty and
his royal prcdcccffors, have by virtue of the faid fe\^ral
letters patent to them rcfpcclively granted, from time to

. timev

CoUegeSi 4S7

time, printed all afts of parliament and abridgments of
afts of parliament, bibles, new teftaments, and other
books mentioned in the faid letters patent ; and the plain-
tiffs claim the fole right of printing all a£ts of parliament
and abridgements of a6ls of parliament, exclufive of all
other perfons, during the term granted by the letters pa»
tent of the 12th of queen Anne.

The feveral letters palent, and a£l of parliament, un-
der which the defendants claim, are as follows :

26 Hen. 8. Jul. 20. The king for himfelf and his heirs
grants licence to the chancellor mafters and fcholars of
the univerfity of Cambridge, that they and their fuccefTors
for ever, by their writing under the feal of the faid chan-
cellor, may aflign and chufe and for ever have among
themfelves and within the univerfity aforefaid always re-
maining and inhabiting three ftationers and printers or
venders of book^, as well aliens as natives, having and
holding as well hired houfes as houfes of their own;
which faid ftationers and printers in form aforefaid aflign-
ed, and every of them, may lawfully there print all man-
ner of hooks approved or thereafter to be approved by the
faid chancellor or his vicechancellor and three do(3:ors
there ; and as well thofe books, as other books printed
wherefoever, fa as aforefaid approved or to be approved,
might put to fale, as well within the faid univerfity a?
elfewhere within this kingdom wherefoever they fhall
pleafe.

The flatute of the 1 3 EVi%. c. 29. [as in this title be-
fore recited] confirms the faid grant by authority of par-
liament.

3 Char. I. Feb. 6. The king reciting (among other
things) the faid letters patent of the 26 H. 8. and the faid
adl of parliament ; and alfo reciting, that fince the faid
a<?t divers letters patent had been made by queen Eliza-
beth, as alfo by king James the firft, and by his then
majefty, as well to the mafter wardens and commonalty
of the art and miflery of ftationers of London, as to Ro-
bert Barker, Chriftopher Barker his fon, John Bill and
Bonham Norton, and divers others, giving them autho-
rity to print or caufe to be printed and fold divers and
fundry books in the faid letters patent particularly ex-
prefl'ed, and prohibiting generally all other perfons to
print the fame ; and reciting, that on the 23d day of
Ji^e in the 28th year of the reign of queen Elizabeth, a
decree v/as made in the CQurt of ftar chamber, containing

among

458 Colleges*

among other rules and ordinances, that no perfon or per-
fons fhould print or.caufe to be printed any books work
or copy, againft the true intent and meaning of any let-
ters patent commiflions or prohibitions under the great
feal of England, or contrary to any allowed ordinance
fet down for the good government of the company of fta-
tioners in London, upon pain of imprifonment and fuch
other punifhment as in the faid decree is fet down, which
decree was after by a proclamation made the 25th day of
September in the 21ft year of the reign of king James the
firfl: commanded from thenceforth to be obferved and put
in execution ; and reciting, that divers queftions and
controverfies had arifen, whether any flationer or printer
of the faid univerfity of Cambridge, fo affigned and cho-
fen as in the faid letters patent of king Henry the eighth
is dirc6led, might then with the approbation of the chan-
cellor or vicechancellor and three doctors of the faid uni-
verfity lawfully print or caufe to be printed and put to
fale any of thofe books fo particularly exprefled in any of
the faid letters patent ; his faid majefly therefore, to the
intent that it might evidently appear to all men, how gra-
cioufly he tendred the franchifes liberties privileges and-
profits of the faid univerfity of Cambridge, which faid
franchifes liberties privileges and profits he purpofed no
way to abridge or diminifh, but conti'arily to enlarge am-
plify and increafe the fame, when fit occafion fliould be
offered, being as zealoufly bent to advance learning and
the profeHors thereof, as any of his predeceffors had been ;
and to the end that all fuch controverfies queftions and
ambiguities might be abolifhe^ and taken away ; for him-
felf his heirs and fucceflbrs doth ratify and confirm unto
the chancellor mafters and fcholars of the faid univerfity
of Cambridge and their fuccefibrs, all and every the pri-
vileges and immunities by the faid letters patent of king
Henry the eighth to them granted or mentioned to bo-
granted ; and doth thereby further grant and declare, that-
jt fliall be lawful to and for any ftationer or printer in the
faid univerfity of Cambridge, then or thereafter to be
afligned and chofen in form aforcfaid by the chancellor
mafters and fcholars of the faid univerfity, to imprint or
caufe to be imprinted from time to time within the uni-
verfity of Cambridge, with the confent allowance and api
probation of the chancellor or vicechancellor and three
doctors of the faid univerfity, all or any of the books pa^
ticiilarly exprefied in all or any of the faid letters patcr^of
queen Elizabeth, king Jamesj- or of his faid majefty,

unto

COUegCS* 459

unto any perfon or perfons, body polrtic xDr' corporate,
<as aforefaid, or unto any other perfon or perfons, bodies
politic or corporate, fmce the granting of the faid letters
patent to the faid chancellor mailers and fcholars as afore-
faid, and alfo all and all manner of other books allowed
or to be allowed in the faid univerfity as aforefaid; and
that the letters patent made by the late queen Elizabeth
pr king James or his faid majefly, unto any the perfon or
perfons, bodies' politic or corporate whatfoever, fmce the
granting of the faid letters patent to the faid chancellor
maiters and fcholars as aforefaid, fhall not be deemed to
be any impediment or impeachment unto the faid chancel-
lor mafteis and fcholars of the faid univerfity of Cambridge
or their fucceflbrs, or to any of their faid ftationers for
the time being, in or for the quiet holding and enjoying
of the faid privilege and immunity concerning printing
(fo as always fuch book or books be fir ft approved of or
allowed by the chancellor or vicechancellor and three
doctors of the faid univerfity for the time being, as fit or
apt books to be printed within the faid univerfity as afore-
faid) ; and that it fhall be lawful for fuch ftationers or
printers in form aforefaid chofen, by themfelves their de-
puties fervants or alfigns, to put to fale as well within the
faid univerfity as elfewhere v/ithin any of his majefty's
dominions, as well thofe books which had been or fhall
be fo printed within the faid univerfity, as all other books
wherefoever printed or to be printed, and which had been
or fhall be by the chancellor or vicechancellor and three
doctors of the faid univerfity for the time being approved
as books fit to be put to fale within the faid univerfity,
without incurring any puniflimcnt pain penalty forfeiture
lofs or darriage j any letters patent, or any prohibition,
reftraint, claufe or article in any letters patent, com-
mifTion, decree, proclamation, acSt of parliament, or
other thing before granted made or done, or thereafter to
be granted made or done, to the contrary notwithitand-
ing.

The faid defendants, the chancellor mailers and fcho-
lars of the univerfity of Cambridge, infift that the com-
plain^ts have not the fole right of printing all a<51:s of par-
liament, abridgements of ads of parliament, bibles and
books of common prayer, exclufive of all other perfons
during the term granted by the faid letters patent of the
1 2th of queen Anne ; and infift, that they the faid defen-
dants the chancellor maftcrs and fcholars of the univerfity
aforefaid have by means of the faid laft mentioned letters

patent

460 CollesesJ.

patent and a^ ©f parliament, or fome ©f them, a right
to appoint within the faid univerfity three ftationers or
printers duly qualified according to the faid letters patent;
and that fuch ftationers or printers (o qualified may print
all fuch books as have be^n or ihall be approved by the
chancellor or his vicechancellor and three do^lors of the
faid univerfity, according to the form and manner pre-
fcribed by the faid letters patent.

That the univerfity of Cambridge hath, by virtue of
the faid letters patent of king Hen. 8. confirmed and
enlarged as aforefaid by the ftatute of the 13 Eliz. and
the letters patent of the 3 Cha. i. from time to time ap-
pointed ftationers printers and venders of books witbLm
the faid univerfity, and fuch printers have from time to
time printed bibles and books of common prayer, and
all fuch other books which had been allowed and approv-
ed by the chancellor or his vicechancellor and three doc-
tors of the faid univerfity for the time being.

That the printers of the faid univerfity have from time
to time and at divers times fmce the granting the faid let-
ters patent of king Hen. 8. printed the ads of parliament
for uniformity of common prayer, and vended them with
the books of common prayer.

That it doth not appear, that fince the granting of
the letters patent of king -Hen. 8. the defendants, the
chancellor mafters and fcholars of the univerfity of Cam-
bridge, or any perfon claiming under them, have printed
any adl of parliament or abridgments of a^ts of parlia-
ment, except the a6ls of uniformity which have been
ufually printed together with the common prayer, until
the printing the book in queftion in this caufe.

That on or about the firft day of January 1740, the
defendants the chancellor mafters and fcholars of the uni-
verftty of Cambridge did, by writing under their common
feal, in due form elecl: and appoint the defendant Joftph
Bentham, who is an inhabitant within the faid univerfity
in a hired houfe, and duly qualified within the intent
and meaning of the faid letters patent, to be one of the
faid univerfity printers,

7'hat on or about the 19th day of March 1741, the
then chancellor and three do6tors of the faid univerfity
in due form allowed and approved Vi book, intitlcd. An
e-xact abridgment of all the a(^s of parliament relating
to the cxcife on beer ale bfandy vinegar or other liquors,
with fome few notes and inferences, to be printed h^ the
'f^.id Jofcph Bentham, and the faid Jofcph Bentham print-
ed

Colleger. 461

ed the fame accordingly : And the fame have been fince
vended and fold by him and the other defendant Bathurft,
bookfcller in London.

The queftions upon this cafe are:

1. Whether the plaintiffs are intitled to the fole
right of printing a(^s of parliament and abridgments
of a£ls of parliament, exclufive of all other perfons, du-
ring the term granted by the letters patent dated the
13th day of October in the 12th year of the reign
of queen Anne.

2. Whether the defendants, the chancellor matters and
fcholars of the univerfity of Cambridge, by virtue of the
grants and a£l of parliament infifted on by the faid de-^
fendants, or any of them, have the right or privilege of
printing a6ls of parliament or abridgments of acSs of par*
liament.

In the argument of this caufe, the whole learning rela-
ting to the premifTes was fully opened and confidered ;
the fubftajice whereof was delivered by the then folicijtor
general Yorke, who argued (for the univerfity) to the
following effect: :

^' Thefe are doubts to be refolved upon the rights of
the plaintiffs and defendants, ilated in the bill and an-
fwer, but not intended to prefcribe the method of ar-
gument.

Stri^ly fpcaking, they may be reduced to one ; for if
the defendants have any right, the plaintiffs have not the
{ble exclufive right. i

This is a matter of confequence to the univerfity, and

to the publick : To the univerfity, who are fupport-

jng anticnt privileges, derived from the grace of the crown,
confirmed by parliament, peculiarly adapted to the ends
and conftitution of fuch learned bodies, againft an ex-
clufive fo'e right claimed under fubfequent letters patent r
To the publick, interefted to open grants. Which if
maintained in their full extent, as to books of general
ufe (fuch as a£ls of parliament, which are the Jaws of
the land), muft operate with all the inconveniences of
monopolies, and tend to deftroy that emuLition amongft
priiitcrs, which has hitherto prcfcrved the honourof the
art, above the gains and the trade of it. > '

The power of the crown is not in queilioU between
"US ? Both admit, both claim under it. -

However

462 Colleger.

However, the court looks to the foundation of the
grants, as illuftrating the meaning. — ^ — To argue front
the words, without confidering the rights and powers
from which they flow, muft be very unfatisfadlory : It is
calling upon the court to form conclufions of judg-
ment, without any premifles, or at leaft upon the moll
uncertain and imperfect premifles.

I (hall confider three points,
I. . How the prerogative of the crown flands at the

common law, as to the fubjedl: matter of thefe grants;

and particularly, how it was aflumed in fadl, before and

at the time of granting the letters patent 26 Hen. 8. to

the univerfity of Cambridge.

n. The conftrucSlion of the grants themfelves, from

the words arid penning.

ni. The ufage confequent upon them, which is to be

refpedled, as the expofition of time, and of the parties.

I. How the prerogative ftands at the common law, or
was aflumed in fa61: before and at the time of granting the
letters patent of 26 Hen. 8. to the univerfity.

[I] On principles of the common law.

I. It is certain, the kifig has no prerogative over the art of
frinting^ at common law, dijlin5l from parliamentary powers :

If he had ever granted the folc exercife of the art, it
would have been a monopoly, within all the rules laid
down in parliaments and courts of law.

What is the art ? A mechanic invention to fave the

time, expcnce, and labour of tranfcribing.

Some attempts were made formerly, to eftablifh a royal
property in it, on pretences of money given by the king
for the difcovery.

Were the fidiion true of Hen. 6. and archbilliop Bour-
chier bringing over Frederick Corfellis, a foreign printer^
to fet up a prefs at Oxford ; ftill it would not follow^
that, becaufe a wife prince generoufly patronizes a new
, invention, highly ufcful to mankind, and fpreads it thro-

his kingdom for the good of his fubjedh, therefore the
common law at once flamps it with indelible characters
of prerogative, and appropriates it to the king and his

fucceflbrs, in right of his crown. But that fidion re*

reived by Mattaire, Palmer, and other eminent writers
gn the hiilory of printing, is now fully expofed in Dr

Middleton's

Colleges, 463

Middleton's diflertatlon on the origin of printing in Eng-
land, to the fatisfaclion of the learned world. *

And it was rightly faid in the argument of the cafe of
the Stationers company againft Partridge^ that on this
ground, the crown might make a monopoly of the apo^
thecarys trade ; for the firft was a Fleming, brought over
by Edw. 3. in the fecond year of his reign, f

The legiflature too, has recognized the art, as free to
the induftry of. the people at large. In fome ancient
acSts of parliament it is ftyled a manufa^ure of the kingdom y
and in more modern ones, it has been called a trader
where the very term excludes the notion of a prerogative
rig^t. ^ ^ ^ .

2. It is equally certain, that the king has jjo prerogative
to licenfe books antecedent to the printing.

He cannot fay, " None fhall fee the light, without
** the review of my licenfer." The author or editor is
accountable to the law and the king in his courts of ju-
ftice ; but not to the perfon of the king, or his minifteis
of ftate, for leave, before he prints.
, To fay otherwife, would overturn that facred policy
of our conftitution, which preferves freedom of- difcourfc
and writing to the fubjecl:, for the common good.

The liberty of the prefs confifts in printing our thoughts,
without previous reftraints.

So Milton, in the times of the troubles, calls it, em-
phatically, the liberty of unlicenfed printing ; and explains
himfelf in many paflages of that excellent treatife, inti-
tled Jreopagitica, being a fpeech for the liberty of unli-
cenfed printing to the parliament of England. %

And thus it hath been confidered in later times, fince
the revolution, in parliaments and courts of law.
. But Milton himfelf admits (tho' an enthufiaft for .li-
berty) that if a book is publrfhed, which contains mat-
ters impious, immoral, to decry or ridicule religion and
"virtue (which, in a political confideration, are only other
names for publick order), fcandalous againft magiftratej
or private perfons, feditious againft the crown and civil
government ; the publication is an offence punifliable by
law, as a mifdemcanor of the higheft nature.

♦ Middleton's works. Vol. 3d. p. 229. f Moor 67J.

t Milton's works. Vol. 1. p 14.1. Edit Ltmd. 1755. '

Theft

464 CoUefies.

Thefe are propofitions fo clear, that they may be ad-
vanced by any fervant of the crown in Weftminfter hall,
without the licence of his majefly : And contrary notions
never feem to have been brought into debate and argu-
ment, as maintainable on legal grounds, tho' fometimes
carried into pra61:ice by the ftrong hand of prerogative,
till after the reiloration.

This w^ork was referved for the law patentee, as be-
coming the function conferred upon him by his grant.
Colonel Atkins (the then patentee) contended with feve-
ral members of the ftationers company, for the printing
of lord Rolle's abridgment. And in defence of his patent,
in the year 1664, publifhed a difcourfe to fhew (as the
title page expreffes), that printing belongs to the prero-
gative royal, and is a flower of the crown. That book
proves, that he deferves the charatfter given him by Dr
Middleton, of a bold, vain man ; and as he was the firft
editor, fo fome have imputed to him the honour of in-
venting that fi(ftion about Hen. 6. and the archbifhop of
Canterbury, and the record at Lambeth pretended in Sup-
port of it, which the moft accurate enquirers could never
find. If his intereft provoked him to this excefs, ftill his
principles and his record, tho' they infedled the argument
of his counfel in the houfe of lords (as appears by Car-
ter's reports, 89.) did not impofe upon the judgment of
this court, as grounds of prerogative at common law.
For the court of king's bench (lord chief juftice Hale
preiiding) v/ere of opinion againft the validity of his pa-
tent. —— — ' The name of the cafe was Roper v. Streater.

It is remarkable, that there is not a note of the debate
at the bar, or of the opinion of the court, in any printed
report of that time ; only the argument of counfel in fup-
port of the patent, which I juft now mentioned. Per-
haps the anxiety or prudence of fome former law paten-
tee made him unwilling to publifh it. 1 have had

no opportunity to look upon the record, as it ftands up-
on the rolls of this court. The judgment here was given,
Mich. 24 Cha. 2. It was reverfed in the houfe of lords
26 May 1675. Ever fmce that reverfai, the patent has
been deemed to be ellabliflied. I will not go out of the
way to fpeak of the grounds of the judgment of the houfe
of lords. It appears hov/cver, from the journals of that
houfe, that the qucftion bore fome debate ; and lord
Anglefcy, who was very learned in the common law,
and in the records of parliament (as appears from his
jwifwcr to Sir Hencagc Finch's argument, at the con-
ference

Colltge^* 465

ference between the two houfes, concerning the fole right
of the commons to grant aids of money to the crown),
was of opinion to affirm the judgment of this court) and
defirous to ftrcngthen his opinion by the weight and au-
thority of all the judges, if thehoufc of lords had thought
fit to hear them. For it is fai<i in the journal, ." That
" after ferious debate and confi deration, the qucftion was
*' propounded, whether the judges fhall be heard in this
** cafe, and the quefHon being put, whether that quef-
" tion fhall be now put, it was refolved in the negative;
*' Then the queftion was put, whether the jadgnient
*' fhall be reverfed, and it was refolved in the affiifna-
« tive DiJJentient Anglefey."

3. As on the one hand it is certain, the king has nd
prerogative at common law over the art of printino-, or
the books publifhed by means of it ; fo it is equally cer-
tain on the other, that he has feveral rights of copy by
prerogative.

All aSis ofjlate flow from the crown, for the obedience
of the fubjecSl.

A5ls of parliament are the king's laws, anciently pro-
mulged by writ to the fheriff, uiider the authority of
the crown.

Pr'oclamations and orders^ by the advice of the privy
council, are a£ts of prerogative.

The regijhr of ivrits, the year books or annals of the
tranfaftions of the courts of jufticc, reported at the- king's
expence, are his property.

The englifh tranflation of the bible, and books of ^Z-
vine fervice, were made and compofcd at the like expence,
and by the fame authority.

This prerogative property is to be maintained on the
fame grounds of argument, as the general property of au-
thors in their works, but inforced by reafons of law, and
policy, and higher confiderations.

The people are interefied in the authenticity of thofe
•laws and acts of flatc, by which they are governed.
Therefore the king, in all ages, had the rifxht of copy
in them.

This appears from the manner of promulging acSls of
parliament : And after the reformation, whcji the fuprc-
macy of the crown was clearly ailertcd and vindicated
in parliament from papal ufurpation, the king was deem-
ed to have the like prerogative royal in publifhing thofc

Vol, I. H h books.

466 Coiugei^.

books,' which are the foundation of the eflaWifhed reli-
gion of the country, or prefcribe publick forms of wor-?
Ihip to the people.

But tho' it is a property differing in its origin and im-
partance from that of other authors ; ftill the king's right
is of the fame nature, and to be argued and fupportec} up-
on principles of property.

Thus the queftion was debated at the bar of the court
of common pleas, by that great lawyer and able advocate
(erjeant Pemberton, in Seymour's cafe, i Mod, 256. rela*
ting to the grant of the ftationers company for the fole
prii>ting of almanacks ; when, being prefTed to know how
to fhape his argument, yet chufing to avoid colonel At-
kyns topicks (to which lord North chief juftice fhewed
ijiore refpe6l), he endeavoured to maintain it by this rea-
foning, that the calendar having no certain author, al-
manacks were to be confidered as nullius in bonis ^ and the
king had a fort of fifcal or caduciary right.

Sir Peter King, who fpoke as counfel on the fame
fide, long afterwards in queen Anne's reign, upon a cafe
diredlied bylordCowper out of chancery in the year 1710,
?nd argued before Parker chief juftice in this court, en-
deavoured to fhew the king's prerogative in the calen-
dar, as it is part of the common prayer book, which was
a prerogative copy. This was a different fort of reafon-r
foniiig from ferjeant Pemberton's, if it could be fup-
p^rted.

The anfwer was, that before the reformation, the ca-
lendar varied as to the faints and number of feflivals, ac-
cording to the difcretion of the ordinary in every diocefe,
and was inferted in the book <;>f common prayer, only a?
an index to the leflbns out of the bible.

No certificate was made W that cafe.
. And it is not material, whether the particular rea-
foning5- were valid ; but the general, rational, fober
ground of royal rights of copy by prerogative, as main-
tained by the ableft men in Weftminftcr hall, is pror
perty.

[II] How the prerogative was afTumed in fa£l, be-
fore and at the time of granting the letters patent 26
Hen. 8. to the univcrfity of Cambridge.

The opinions then held, — the powers in fa£l exerci fed
by the king, — are material to fhew, what the king in-
tended to grant.

Til is period was fcvcnty years after the importation of
the art of printlrsT.

The

ColUses* 467

The king will not be conftrued to have granted
rights, which at that time he never claimed 5 efpecially
when the confcquence of fuch conftru^lion will vitiate
and annul his grant.

The fa£l therefore fliall be opened in the fame order,
in which I have explained the principles.

I. Did the king, in fadb, afllime the fole exercife
of the art of printing, by his fworn fervants or gran-
tees ? — It wgs never thought of in any age, and as little
in the times of Hen. 8. as in any reign in Englifh
hiftory.

Even in the 43d year of queen Eliz. when fo large a
catalogue of monopolies was laid upon the table of the
houfe of commons, that aji erninent member of parliament
(Mr Hakewell of Lincoln's Inn) * gravely afked, where
was the patent for making bread ; and having put the
houfe in fome furpri^e, explained himfelf by fayirg, that
if parliament did not interpofe, fuch a patent would be
granted be^re next feflion : I fay, even in thofe days,
no courtier had made the art of printing the object of his
rapacioufnefs, or a(ked a grant of it as a matter of prero-
gative. Yet perhaps no monopoly except that of bread,

could have been more lucrative.

The firft printers exercifed the art, without any privi-
lege, general or fpecial.

Caxton, to whom the honpur of importing the art into
England f is clearly due, obtained no patent for this pur-
pofe. Tho- favoured and protected by Edw. 4. Hen^ 7.
the duke of Clarence, and others, there is no pretence
for the notion, that he was either a grantee or fervant
of the crown. In the large number of volumes which he
printed, he never mentions it. His title page never bear?
cum privilegioy or ciwi privilegio ad imprimendum folum :
only thefe humble words, Imprinted by ?ne fimple man^
William Caxton. If he had been a grantee or fervant of
the crown, he would have referred to his letters patent, or
flyled himfelf Printer to the king^s grace, as others did af-
terwards. If fuch a licence or authority had been deem-
ed neceflafy, the great lawyers of that age would have
told him fo. He might have advifcd upon it with Lyt-
tleton himfelf. And not only his merit would hav&
procured it, but his modefty would have fought it for
his protedlion.

f TQwnfh. Colledl. p. 239. f A. D. 1471.

H h 2 2. Did

4-68 CdlUges.

^ h. Did the king (that great and arbitrary prince Hen.
8.) claim any prerogative over the allowance of books
published from the prefs r — No more than the crown did
before over books tranfcribed.

The licenfing of books, previous to the printing
and publifhing, at that time was not thought of in
England.

The beft writers on this fubje61: have agreed^ that po-
litical uniformity in religion iirft produced the attention
and jealoufy of a licenfer. >> . ■

They have traced it from the council of Trent, and
from the inquifition in Italy and Spain.

In England, the only inftance of controll, the only
menace of coercion, prior to the king's grant to the uni-
verfity of Cambridge, was (in the year 1526) * a man-
datory letter, not from the king, but from Tunftall bi-
fhop of London, to the archdeacon of London or his of-
hcial (pro falute anim?e ct corre£lione morum). It pro-
hibits the fpreading tranflations of the new teftament
made by Lutherans, and commands them to call-in eng-
lifli new teftaments, which intermix or give countenance
to heretical errors. — But this feems to have flowed from
the power of the ordinary to diredl articles of inquiry,
either in his own or the archdeacon's vifitation, and to
have been formed particularly on the ftatute 2 Hen. 4.
c. 15. for reprefling herefies, which required the delivery
of fuch books to the ordinary.

Then followed the letters patent to the univerfity of
Cambridge in 1533.

About five or fix years afterwards, in 1539, fomc in-
junctions t were ifTued in the king's name, againft im-
porting books from abroad without examination of the
king or his council (or fome appointed), particularly
cnglifh books ; or printing, publifhing, and felling with-
in the realm, englifh books of fcripturc, without exa-
mination by the king's highncfs, or one of his council,
or one bifhop whofc name was to be exprelFed.

But this proclamation, or thcfe injundtions, were ap-
plied only to the cafe of importing books from abroad,
which had been rcftraincd (1532) by the flatutc of 25
Hen. 8. 'c. 15. So that they amount only to the in-
forcing of a parliamentary prohibition, and do not ope-

* Fox's Adls and Monuments, 549. Book of Martyrs, 990.
i Fox's Adls, 572. B.of Martyrs, 1108. Edit. 1576.

rate

CoUesesi. 469

rate in any fort as a regulation to licenfe books ge-
nerally within the kingdom, before the printing and
publication.

From this time forward, in that age of reformation,
heated with contefls of religious zeal, it is remarkable,
that no a£i of ftate was done by the mere authority
of the crown relative to this matter, for almoft three and
twenty years.

, The parliament indeed interpofed once, by the fta-
tute of the 3^4 Ed. 6. c. 10. to abolifh divers books
and images.

And in 1555, there was a proclamation by Philip and
Mary, againll importing heretical and fedFtious books,
fpecifying the books of all the great reformers of Eu-
rope, englifh and foreign, (including Erafmus.) — This
flands likewife on the ground of parliamentary autho-
rity, and recites the flatute of 2 Hen. 4. for reprefTing
herefies.

In 1556 (3 & 4 P. & M.) the very next year, the
iirft charter was granted tg the ftationers company, re-
quiring all printers to be of that company, and giving
powers 6f fearch and feizure in refpe<Sl to all books
printed or (lamped contrary to the form of any ftatutc
or proclamation. This charter was framed 23 years after
ihe grant to the univerfity of Cambridge, but prefcribed
no form or method of licenfmg.

In 1558 (the iirft year of queen Elizabeth), it was fol-
lowed by a ratification j and in 1559, by additional in-
junctions againit heretical and feditious books, requiring
in the firft inftance, by royal authority, previous to the'
printing or pubii(hing of any books, the licence of the
queen in writing, or of fix privy councellors, the arch-
bifhops of Canterbury and York,, the bifhop of London,
the chancellor of the two univerfities," the bifhop (being
ordinary), and the archdeacon, or any two of them, the
ordinary of the place being one. As to pamphlets, plays,
and ballads, (wherein regard was to be had that nothing
be feditious, heretical, or unfeemly for chriiKan ears,)
fuch writings as thefe are turned over to be licenfcd by
the commiSioners of ecclefiaftical caufes. *

This was the firft regulation for licenfmg in England,
in the true fcnfc of that inftitution.

♦ Ames's Typogr. Aniiq, 517, 520, 527.

H h 3 When

47© CoUegefit.

When once the ftationers company was made abfolute^
and a corporation of weight, the ftar chamher endeavour-
ed to fupport and execute thofe powers, which neither
the law, nor the people could endure, from the hands of
any corporation (the creature of the crown).

Hence the ftar chamber ordinances, dated June 29th,
1566, to inforce the powers of the charter of that com-
pany, figned by Sir Nicholas Bacon, lord Burleigh, and
the moft eminent privy counfellors of that age, and un-
derfigned by the commiftioners of ecclefiaftical caufes. *

Hence the inforcement of thofe ordinances in 1585,
28th Eliz. by decree of the ftar chamber 3 and in 21 "Ja, i.
by proclamation founded on that decree, f

Hence in 1637, the famous decree of the ftar chamber,
prefcribing methods and povvers of licenfmg, to be pur-
sued and cxercifed with a ftri(Sler hand. J

This was complained of and condemned by votes of
the houfe of commons. Hence during the troubles of the
kingdom, and diftradlions of civil war, the origin and
hints for reftrairiing the prefs \i^ ordinance of parliament
in 1643. §

And hence the licenfmg aft, 14 C. 2. c. 33. after
the reftoration. — This law fubfifted in force till 1692.
when the time for which it was enadled being run out,
it expired of it felf.

The truth was, that both parties, when in power, and
diftrelTcd by what they called faftion, had fallen into the
fame extreme; fo that the parliamentarians could not ob-
jc£t to the liccnfing act at the reftoration, with any grace.
>\nd accordingly it feems to be formed in fome meafure,
out of the decree of the ftar chamber, and the ordinance
of parliament, combined together" in a friendly union,

Befides all this, the prerogative was now and then ex-
erted, in proclamations againft feditious or traiterous books;
as at the time of the Spanifti invafion in 1588, by queen
Klizabeth, when her title to the crown was attacked, by
a malignant party at home, and her enemies abroad.
Such proclamations as thefe are within the power of tl^c
crown, and agreeable to maxiins of found policy ; recom-
mending to magiftrates and good fubjefts the due execu-
tion of the laws, to prevent mifdemcanors, to bring of-

• Strype's life of archb. Parker. 221. f Strype's life of archb.
Whirgift. 223. -^ RuihW. Coll. Vol. i. part 2. page 463.
^ Ruihw. Coil. VoU. 2. prt 3. pa<jc 335.

ipnder^

Colleger. 47 ^

fenders to puniihment, and operating in general as an
admonition and warning to the people.

There are alfo feme inftances of patents fued out
for particular books, as a proteftion to the auther or
printer, in the nature of new inventions. Thefe were
temporary licences, for feven or ten years, fometimes
for the life of the author or printer ; and by a claufc in
the ftatiite 21 Ja, c. 3. (which faves letters patent or
grants of privilege concerning printing) feem to be re-
cognized as legal, or at leaft remain unprejudiced by
the provifions of that law.

3. Did the king, at the time of this grant to the uni-
verfity of Cambridge in the 26 Hen. 8. claim any pro-
perty or copy rights in particular books, by virtue of his

prerogative? 1. This the king certainly did, long

before the date of the grant in queftion, particularly in
thcjiatute hook or a/^s of parliament^ the regijler of writSy
the year books or annals of the fupreme courts. I find
there are two or three inftances of printing an abridg-
ment of the ftatutes down to the 31 Hen. 6. without a
a privilege ; as alfo the ftatutes from Edw. 3. to the 22
Edw. 4. the ftatutes i Rich. 3, and fome year books of
Hen. 6, by John de Letton (the firft editor of Littleton's
tenures) in the year 1481, and by William de Machlinia
in 1483, without a licence: But it is plain, that the
-crown claimed a property in the ftatute book, early after
the importation of the art of printing. The promulga-
tion by the ftierifF under the king's authority, the maxims
of the conftitution in refpe^t to the executive power of
the crown, immediately fupportcd it. The firft printer
who ftyles himfelf printer to the king's grace, is Richard
Pynfon (it ftiould feem in the year 1503) as fervant to
Hen. 7. and afterwards to Hen 8. * He printed a£ls of
parliament from 1503 to 1528, and the year books. T,
Berthelet (the grant of whofe falary or annuity In the
year 1529 is ftill extant) feems to have done the fame, f
But their right to the office of king's printer doth not
appear by any grant upon record. Probably they had
no formal grant or appointment. However that may
be, hiftory (civil and literary hiftory) fpeaks the king's
acknowledged property.

* Ames's Typogr. Antiq. iii.
*[• Fuller's CnurCh Hiit. 392.

H h 4 2. In

472 Cotieses.

2. In like manner, about this time, the king claimed
a prerogative right of copy in the engltfl) bible. -P'requent
orders were given in council for preparing it, in the years
1^3^ and 1533; * and, learned men in both univerfities
were advifcd with. Richard Grafton, whofe letters pa-
tent as king's printer i Edw. 6. arc the fccond in order
of time, flated in this cafe or appearing on record, was a
mod zealous friend to the reforfr^atipn. He procured
leav^e of PVancis I. to print an englifli bible at Paris in
1537, .which he prefented to lord Cromwell and archbi-
fhop Cranmer. In this zeal he was fo forward as to be
jmprifoned, till he gave bond in lool, not to print more
cnglifh bibles, till the king and clergy had fettled a tranf-
lation. In 1540, 41, he was reftored to favour, and in-
truded "w^ith printing the folio englifli bible, under letter?
patent, which was ordered by proclamation to be had in
every church '* as of the largeft and grcateft volume.'*
But he underwent great changes of fortune j was deprived
of his office by queen Mary, and difgraccd for having
printed the proclamation on the lady Jane Qrey 's acccflion
to the crown.

3. The fame prerogative right was claimed about this
time, in the w/^/, and all booh of divine fp'vke -y which
underwent various foriTjs and alterations, as projecSls of.
reformation rofe or fell in thofe times. This ^appears
from a patent ftated in Ryfper's Fcedera, dated 28 Jan.
1543. de libris imprimendis pro divino fervitio. f

4. It is upon the like ground of copy right, that the
property of the latin grammar (excepted out of all the
grants to the king's printer) paflls by letters patent. It
was colledled and {ct out by learned men, at the king's
expence, under his direvHiion and authority, and recom-
nicndcd to all fchools by the bifliops in their vifitatidn,
even fo late as 1640, by bifliop Juxon ; in whofe articles
of inquiry, this queftion is infertcd relative to fphool-
maflers, " I3oth he teach them any other grammar,
than that which is fet forth by the aqthofity of )cing
Hen. 8th?"

Upon the whole it appears, Fird, That the crown af-
fumcd no prerogative property in the art of printing in
the 26 Hen. 8. Secondly, It affumed no powers of //"-
cenfmg books publiflied by the profellbrs of that art,

• Lewis's Hift. of the Engl. Tranflat. of the Bi^e. Lond.
1739. i Kymer's Feed. Vol. 14. p. 767. Lond. 172^.

Thirdly,

Colleges. 473

Thirdly, It claimed only a copy right ijy; .prerogative,
in a£t:s of parliament, proclamations, year books, &c.
bibles and books for divine fervice, and the latin gram-,
mar. This right is claimed upon principles received in,
all ages. And if the prerogative of the crown was thus
rationally undcrftood, or at. leaft in no inftance ex-
tended further in the 26 Hen. 8. the court will foou
fee the weight of it, in the cowftruction of thefe grants- .

IL I will next confider the conflrutStion of the grants
themfelves, from the words and penning. And,

[I] I (hall confider the letters patent 26 Hen. 8. to
the univerfity of Cambridge, and thofe alfo to the king's
printer, down to the third year of king Charles the
firft.

[II] The letters patent 20th July, 3 Charles I. to the
king's printer; with the contemporary expofition of the
crown by letters patent to the univerfity 6th Feb. in the
^ame year.

[I] Letters patent 26 Hen. 8. enable the univerfity by
their ftationcrs ^t librorum imprejfores, tarn allenigenas ct
natos extra, quam indigenas et natos infra obedientiam nojiram^
cmfies et omnmiodos I'lbros ibidem impriinere, per cancellarium
vel ejus vices gerente?n et tres do£iores ibidem approbatos feu
impojhrum approbandos.

Letters patent i Ed. 6. to Grafton, and i Mary to
Cawood, grant the office of printer of all and fingular
ftatutes and books, adls of parliament, proclamations,
injunctions, and other volumes whatfoever, by his ma-
jefly his heirs and fuccefibrs then publiihed or then after
to be publifhcd, in the cnglifh tongue, or in the engliih
and any foreign tongue mixed together (except the rudi-
ments of the grammar of the latin tongue). With a
prohibitory claufe to others.

In the following patents, i Eliz. to Jugg and Cawood,
19 Eliz. to Chr. Barker, &c. PInglifh bibles, and new
tcftaments, arid books of divine fervice are named (with
tome little variations in the defcription),
*■ i. The firfl: thing obvious in conftruClion is this :
The right granted to the univerfity is local in Cambridge,
to be there exercifedj — to the king's printer, unlimited,
"in refpe6t of place. The defendants therefore claim
pnly, fub modo^ a conciyrcnt right.

♦ 7.* Another

474 Colleges.

■»* I.' Another thing, as plain, is this; — that the ex*'
clufive aiid prohibitory words in fubfequent grants, can
never affeft rights conveyed by prior grants. The
king can never derogate frorh his own grants : and there-
fore; a faving of, former rights, or a prohibition to new
pretenders, arfe equally ufelefs, and give no other pro-
te£tion than the law implies by virtue of the granting
words.

3. The queflion then Is, — To what fubje£t matter
io the general words in the letters patent 26 Hen. 8.
extend ? *— Did the king mean only to allow printing
at Cambridge, on a miftaken notion of his general pre-
rogative over the art ? That age held no fuch miftaken
notion. — Did he mean only to exempt books printed at
Cambridge from the review of a royal licenfer ? At the
date of this grant, no powers of that fort were claimed
or exercifed. — On what fubjedt matter can it operate;
except the copy rights of the king, more particularly fpe-
ciiied in later grants ?

— • The argument being thus reduced to a point, feve^
ral Objections arife on the part of the plaintiffs. Thcfe
may be reduced to 3 heads :

i. They difpute the a^ual meaning of the letters patent
i6 Hen. 8* to the univerfity.

2. They difpute the legal conjiruiiion,

3. Suppofmg both the a^ual meaning and the legal
conjlru^ion to be in favour of the defendants, yet they
infift, that the letters patent are Ooid^ becaufe the copy
right of a6ls of parliament is a fole right in the king's
printer, from the nature of his ofHce, and incident to it,
as an ancient office of truft, the rights and powers, of
which cannot be fevered or communicated to others.

T. Th-^Y Aifyutt xht aSfual meaning.
Under this head tjhey objedl,

I ft Otje^ion] That acrs of parliament cannot be called
Uhri in any fcnfc : And they cite the definition of a book
from Chamber's Didionary, that a book is a compofition
of wit and learning &c.

Anfw, (i) If this objc£li6n is Icen in the fame light
in wnicn it ftrikes me, there will be no occafion to fpend
much time upon it. It is a chicane (as lord Nottingham
cxprcfl'cd himfelf oh another occafion) to be laughed at
in a cour^ of law. — The general definition picduced of

a baak

Colleges, 475

» book, as a compofition of wit and leafnlilg, is a little
unfortunate ; becaufe there are too many books abroad
in the world, without the Icaft tincture of either of
thefe ingredients. If it were material to produce an-
other, I would produce a definition of a very different
kind, derived from the original fenfe of the word liber.
It is in Pliny's natural hiftory b. 13. c. n. where he
fays, that liber means the inner rind or bark of a tree, on
which the ancients fometimes wrote ; and as thefe Ubri were
rolled together, they were called volumina. So that by
a ufual figure of fpeech, liber and volumen came to be
indifferently applied to exprefs the fame thing. There-
fore it is not to the purpofe, of what fubjedl matter
the book confifts, whether it be matter of wit or mat-
ter of learning, or records, ads of parliament, and
a6ls of ftate. The matter may be infinitely various;
but the form and manner of publication may, in every
inftance, be the fame.

Jnfw, (2) The words of the plaintiffs grants apply this
defcription to fbtutes : " Statutor' libror* libellor' adtuu**
*' parliamenti", diftinguifliing the publication of the fta-
fute book from fingle aits of parliament. And it is the
conllant defcription in every grant, from the time of
Grafton to this day.

id ObjeSi.'] But the books, intended by the king, mufl:
be the objedt of an academical approbation : Adls of par-
liament cannot be fo.

Jnf, T\i\s argument equally applies to printing bibles
and the book of common prayer : The latter of thefe is au^
thbrized by parliament ; the former, not prefumed fubje£^
to any review (except of a general council) fince the ca-
non of fcripture was fixed by the acknowledgment of
tbe chriftian world.

The approbation therefore direfted by the grant muft
be applied iji thefe cafes to the difcretion of adtual printing
in the univerfity at this or that time.

In the cafe of the law patentee, it appears from the
'i^irgument oi his counfel at the houfe of lords, as reported
^n Carter 91. that an objeftion was drawn from the licen-
-ITng a6l 14 Car, 2. againft his right, as if the powers of
licenfing granted by that a6l of parliament had fuperfeded
-his patent. But the diftinition is well taken in anfwerto
it, viz. that it is one thing to fay, this book deferves to be
printed^ which applies to the author ; and another, to
fay, // Jhall be printed by this or that man under the king's
authority. — So here j Jt is one thing to fay generally, this

book

4;^ Colleges;.

^{>/>k' is fit for public k view y worthy of an ifriprifnatur ; anoi
iher thing to fay, //;// book already allowed an imprimatur by
^ublick authority is Jit to be printed in the univerfity by the
powers of this patent : There is a publjck demand for it:
it vrill . be for the reputation of that learned body, and
conduce to thofe corporate profits, which the crown hath
^cen always iinxious to preferve.

3d Obj.^ It is faid, that the king had no other inten-
tion than to enable the univerfity to employ foreign prin-
tefs — ires JJationarios^ tarn alienigenas et natos extra, quam
indigenas, et natos infra obedientiam nojiram : That this is
grounded on the parliamentary reftraints of alien artificers.
In the flatute i Ric. 3. c. 9. containing a general reftraint
of perfons not born within the king's obeyfance exercifing
handicrafts, there is a provifo in favour of alien importers
of books ami printers dwelling within the realm. By the
llatute 2s Hen. 8. c. 15. this provifo in favour of aliens
is repealed", on a recital, that many of the king's fubjetSs
are become able in printing. And the letters patent of
the 26 Hen. 8. to the univerfity were intended to operate
in the nature of a non objiaute to this laft ftatute.

Anjw, (i) There are no words oi non objl ante : with-
"out which, the king's grant cannot have effect againil
an a6l of parliament, even in cafes where the fubjedl has
no intercft in the prohibitory words of the ftatute, as he
certainly has in the reftraint of alien artificers. (Vaugh,
344. Thomas v. Sorrel.)

(2) But the words of the letters patent, on which this
objection is grounded, are plainly fuperfluous, and not
the operative part of the grant. P'or the univerlities feem
to be confidcred, by feveral ftatutes relative to this pur-
pofe, as privileged places. By the 14 & 15 Hen. 8.
c. 2. alien artificers are reftrained to one apprentice, and
two journeymen aliens ; with a provifo neverthelefs for
the univerfities of Oxford and Cambridge. By the 21
Hen. 8. c. 16. that reftraint is made perpetual j with a
provifo, that alien artificers in the univerfities of Can\-
bridgc ?nd Oxford fhallnot have more than ten fervants.
By the 32 Hen. 8. c. 16. alien artificers in Oxford and
Cambridge, or like places privileged^ iliall have but two
alien fervants.

(3) But fuppofmg this matter w^as othcrwife, upon the
letter of the a^ts of parliament; yet the main intention qf
the letters paient was to enable the printing omncs et omni^
tnodos lihros. So it has always been undcrftood ; and lorcl
Coke obi'civc'. it in 4 Inft. 22S. when hp fays, that *' the

'' univerfity

*^ univerfity of Cambridge hath the power t)f. printing
*' within the fatne^ onrtnejir et omnimodos libros, .which'
'^ Oxford has not.'*^— The defcriptioii of alien or nati^'c
relates only to the printers to be employed ; and it is inir-
material, whether the grant could take effect in . every
circuniftance.

2. The plaintiffs difputc the leg/il conjiru^ion.

Olfj.] Here it is objected, that the words are too gene-
ral 5 and in the cafe of the king, his grants will not con-
vey fpecial prerogative rights,' without exprefsly naftimg
them. (So Plowd. the cafe of mines. And Hob. 243.)

Anf, It is difficult to draw the line (which is fonietimes
fubtle) and take the true diftin61:ions upon the conftrucSlIon
of the king,'s grants. This is certain, that the law makes
a difference, between the grants of the crown and of a
common per fon. They fhall be taken favourably for the
king, and no prejudice fhall accrue by implication againfl
the intent.

And therefore I admit

( 1 ) If there are words in the king's grant, which under
a general name comprehend things royal and things bafe ;
it fhall be taken in favour of the king, and the hafe thing
ihall pafs, the royal or prerogative rights fhall remain.
(Plowd, 333. Cafe of mines. Dav. 17. Cafe of Cuf-^
toms.)

(2) If the exprefs grant of the king cannot take effect,
without implying fomething which is clearly not granted,
cither by fpecial or general words ; the grant fhall be
void, rather than inure to two intents, without words
in the grant: As if lands, or an office, be granted, to an
alien born, this will not make him a denizen ; or to "the
king's villein, this will not infranchife him; or to a fe-
lon, this fhall not pardon him. (Br. Pat. pi. 62. 5 Co,

56.)

(3) The king's grant fhall be void for uncertainty^
where the grant of another would not, upon the doubt-
fulnefs of his intention, which of two things, equally in"
his power, was the objciSl: of his grant. As if the kihg
has 100 acres of land in D. and grants to one 20 acre^ in
D. without defcribing them by rciit, occupation, of name ;
the grant is void, and the grantee fhall not h'Ave elc^fHon
in the king's cafe. (12 Co. S6.' Sfoc.kda!t'*s C2i(c.) So" if'
he doth not limit any certain efliitc to the grantee, no-
thing fliall pafs, noteven an cflatc at will. (Dav. "Dc'dn
and Chapter of Feme's cafe.) ....

4 '' ' ' 'W'^^t

478 ColUffefi.

{4) But if the general words are fufEcient to compre-
hend two intents, not equally in his power, one of which -
is void and incfFedual, and the other good ; it fhall be
taken and confined according to fuch intent, that the
grant fhall have effect. And this (fays lord Coke) in
judgment of law^ Jlands with the intention of th^ king\ for it
was not the intent of the king to make a void grant, (8 Co.
56, 167.) And in 2 Inft. 496, 7. on the flatute of ^0
Warranto^ 18 Ed. i. it \s, {dixAy fecundum earum plenitudz-^
nem judicentur^ — let them be expounded in their full
ftrength ; that is, as fully and beneficially as the law was
taken at the time when the grants zvere made^ which lord
Coke adds, is a direction to the fages of the law, in the^
conftru6lion of the king's charters.

Jn this cafe, the words are large enough to compre-
hend the co^y right of the crown, as well 2iS general powers
of printing. To this latter purpofc, the grant is idle,
and void : The univerfity might employ printers, with-
out the king's licence, at a corporate expence. To the
former, it may operate, as the legal prerogative was un-
derftood and aflumed in facl, at the time of making the
gram.

Then (as it is exprefled In 6 Co, 5. Sir John Molyn*^
cafe) the grant fhall be conftrued to have effect, for the
honour of the king, and the good of the fubje6t.

This reafoning is ftrengthened by the flatute 13 Eliz.
c. 29. where the very letters patent are exprefsly mention-
ed, and confirmed in parliament, according to the form>
words, fentences, and true meaning.

3. The plaintiffs fay, that fuppofing both the a^aa!
meaning and legal con{\:r\ic}:ion to be in favour of the de-
fendants ; yet the letters patent are of no effe61:, becaufe
the copy right of a6ts of parliament is a fole right of the
kin<»-'s printer, incident to his office, as an ancient office
of truft, the powers of which cannot be fevered or com-
municated.

^nf. The objedllon is made now for the firfl time. I
will give it the beft anfwer which occurs.

( 1 ) This office of king's printer arifcs not by aft of
parliament : Neither is it an office by prefcription ; the
very art of printing introduced fo late, fhews it impoffible.

(2) If it were an office by prefcription, or fo ancient
as to be deemed almofl of equal confideration ; I know
of no rule of law, which reftrains the king from fevering
the rights and powers of it at difcrctlon.

2 Ia

CoUegejSv 479

In this refpeft, there feems to be a dlftinijlidn in the
nature of offices.

The judicial pov^er of the judges, fitting in the fuprcme
courts at Weftminfter, cannot be granted by parts, or
fevered and communicated to others. If the king, in api-
pointing the judges of the court of king's bencji, ihould
by new claufes inferted in the writ or letters patent, re-
ftrain them from exercifmg the jurifdidion of the court,
-in any cafe but mandamuses arid quo warrantors; and
ihould afterwards, by new letters patent, think fit to
grant an authority to award prohibitions, ^nd to exercife
all other parts of the original inherent jurifdi<Stion ; the
firft reftraint, and the fubfequent particular, authority
would be void, and all the a<5ls of the court muit be jufti-
fied under its general authority.

So if the king, by letters patent fhould grant a power
to the chief juftice of the court of king's bench, to hold
plea in real actions by original out of chancery j or to the
chief juftice of the court of common pleas, to ifTue writs
of mandamus, or to remove the proceedings of inferior
courts by certiorari ; the general inherent authority of
each of thofe great officers would remain the fame, and
the particular authorities would be void.

To fay otherwife, would confound thofe limits and
meafures of jurifdidlions, which the policy of the confti-
tution prefcribes.

But the cafe of minijierial officers is very different. The
king may fever the right and powers, even of fuch as.arjB
prelcriptive, at his pleafure.

It has been done in fa(3:.-: — — ^The clerk of the crowi^ m
chancery, is an officer by prefcription, as ancient as the
conftitution of that court.

King James the firft (to multiply the means of confer-
ring favours, for which he found fuch large demands)
fevered from the office the right to make out licences for
alienation, and appointed a new clerk for that purpofe.

This new office dropt, when the military tenures were
abolifhed by ail of parliament, becaufe it was not worth
the afking. And for land^ in Jerfey, and other places,
fuch licences are ftill made put fometimes in th^ crown
office.

He likewife fevered the right to make out letters patent
for granting officers, from the clerk of the crown i which
remains in the cleik of the patents to this day.

Neither of thofe grants could be made, in prejudice of
a fubfifting patentee of the crov/n office ^ but they might

48o CoUegesf*

he maik previous fo the appointment of a fucceilof in
that office ; and the validity of them was never drawn in
queftion.

(3) Then, Suppofing the letters patent to the king's
printer expired, — why might not the crown grant the
right of printing acts of parliament to one, proclamations
and orders of council to another, bibles to a thirds and
common prayer books to a fourth ?

Or why not appoint feveral printers with a concurrent
right in all ?

Obj,] But the obje^lion is fupportcd further, by fay-
ing,^—This is an important trult : The king's printer
comes in the room of thofe tranfcribers,' who ufed to ex-
emplify a6ls of parliament from the original record : And
the notion has been countenanced fo far that a copy of a
private a6l of parliament printed by the king's printer was
received in evidence, in the cafe oi' Edzuaf^s and Fefey,

Jnf. (i) It is every day's expicrience, that private acls
of parliament are necefTary to be- proved in another man-
ner. The diftin6i:ion -is this : \i the art be private^ the

party availing hlmfelf of it, muft plead it; if he wants it
in evidence, he muft prove it like any other record, by a
true copy examined, or produce an exemplication : If thie
adl \% publick^ the judges are bound to take notice of it by
the rules of law, which prefume, that both the common
and ftatute laws arc in the breaft of the court. And there-
fore the printed flatute book is only a itiemorial, like a
copy, for their private ufe.

(2) The cafe of Edwards znd Fcfiy was certainly right ;
becaufe it is admitted, that the adt, tho' private in its
nature, was made publick by a claufc for that purpofc;
which reconciles It to the known fettled diflin6tion.

[II] I come next to confider the letters patent to the
king's printer, bearing date the tJtoth Julv, 3 Charles i.
with the contemporary expofition of the crown, by tlie
letters patent to the univerfity, dated the 6th of February
following.

It appears, that at this time, the term granted to the
Barkers by queen Elizabeth and king James had been
affigned to Norton and Bill. The king, by his charter
20th July, 3 Cha. I. confirmed that aflignmcnt ; and in
thcfc letters patent, the emphatical words, fcL/y to pj-'uit,
were fir(l infer ted.

The univerfity of Cambridge took the alarm \ and made
application to the crown.

The

cmusts. 4S1

The kiiig, to quiet and abolifh controverfies, hy his

charter 6 Febr. 3 Cha. i. did ratify and confirm gfant

and declare^ as is there fet forth.

The claufe at large recites, " That divers queftions
** and controverfies had arifen, whether any ftationer or
*' printer of the faid univerfity of Cambridge, fo affigned
*' and chofen, as in the faid letters patent of king Hen.
*' 8. is directed, might then, with the approbation of the
*' chancellor or vicechancellor and three dodtors of the
*' faid univerfity, lawfully print or caufe to be printed
•*' and put to fale any of thofe books fo particularly ex-
*' prefled in any of the faid letters patent [that is, to the
*' king's printer] 5 his majeily, to the intent that it miaht
<' evidently appear to all men, how gracioufly he tendred
*' the franchifcs, liberties, privileges, and profits of the
*' faid univerfity of Cambridge, which faid franchifes,
*' liberties, privileges, and profits he propofed no w^ay to
*' abridge or diminifh, but contrariwife to enlarge am-
*' plify and increafe the fame, when fit occafion fhould
*' be offered, being as zealoufly bent to advance learning
>' and the profeflbrs thereof, as any of his predeceflbrs
" had been ; and Co the end that all fuch controverfies
*' queftions and ambiguities might be abolifhed and taken
*' away ; for himfelf his heirs and fuccefFors did ratify
*' and confirm, unto the chancellor mafters and fcholars
** of the faid univerfity of Cambridge and their fuccefFors,
*' all and every the privileges and immunities by the faid
*' letters patent of the 26 Hen. 8. to them granted or
*' mentioned to be granted : And did thereby further
*' grant and declare, that it fhould be lawful to and for
*' any ftationer or printer in the faid univerfity of Cam-
*' bridge then or there after to be afTigned and chofen in
*' form aforefaid by the chancellor mafters and fcholars
*' of the faid univerfity, to imprint or caufe to be im-
*' printed from time to time within the univerfity of Cam-
*' bridge, with the confent allowance and approbation of
*• the chancellor or vicechancellor and three doctors of
*' the faid univerfity, all or any of the books particularly
'' exprefTed in all or any of the faid feveral letiers patent
*' of queen Elizabeth, king James the firft, or of his faid
*' majefty, unto any of the perfon or perfons, body poli-
*' tick or corporate, as aforefaid, or unto any other per-
*' fon or perfons, bodies politick or corporate, fmce the
" granting of the faid letters patent to the faid chancellor
** mafters and fcholars as aforefaid, and alfo all and all
*' manner of other books allowed or to be allowed in the
*' faid univerfity us aforefaid."

Vol. 1. ■ li Thcfe

482 Colleges*

Thefe letters patent are of great weight.

1. If they be confidered as a ionfirmaticn^ it is the fenfe
of the crown, a century after the firft grant, upon th^t
original grant, in a matter of prerogative property,, clear-
ly binding to the crown, and to all future grantees, when
the terms and interefts, then affigncd in the office of king's
printer, fhould determine.

By computation, thofe interefts determined on the loth
of January 1679 ; the laft term then exifting, being that
granted to Robert Barker the fon.

From that moment, the letters patent 3 Charles ift
might be pleaded, either as a confirmation or as an origi-
nal grant, according to the rule of law, in charters to
corporations, where the king grants the fame intire right
or franchife to the fame body.

2. If the letters patent of the 3 Cha. i. be confidered
as an original grant, tho* the king's printer might not be
prejudiced by it, as a judicial authoritative conftru^lion
on the letters patent of Hen. 8. fo as to give the univer-
fity an immediate concurrent right to print all books de-
fcribed in the grants to the then king's printer, yet it
miG;ht be good as a prcfent grant of a reverfionary intereft.

This way of arguing is agreeable to rules of conftruc-
tion on the king's grants. It is lord Chandos's cafe,
6 Co. 56. The king having the reverfion of a manor,
grants it as 2 manor in pojfejjion to one and his heirs. If
the king appears on the face of the grant, to have been
truly informed of his right and all matters of fadV ; the
reverfion fhall pafs : and the reafon alligned is, that the
king intending to part with the whole eftate, and Icfs
pafling by the grant than his intention imported (for he
intended to pafs the pofl'efTion), the king receives no
prejudice by fuch conltrudion.

So in the prefent cafe : The king is informed of all
the matters of fa61: ; of the difputes and controvcrfies be-
tween the univerfity and his printer, and the true grounds
of them. He intends a prefent right to be cxcrcifcd by
the univerfity, concurrent with his own printer. But
the only right remaining in the king to grant, was a right
in reverfion^ expectant on the determination of the fub-
fifting terms.

Therefore (in the words of lord Coke) intending to
part with his copy right, to the univerfity of Cambridge,
in a(5ls of parliament, and their abridgments, proclama-
tions, and :4(Sls of ftate, as a right in pojjejfion^ and lefs
paffing by the gr:'nt than he intended, the king receives
no prejudice by futh conftrudtion.

Let

Congees. 483

"Lei the original doubt then be everfoftrong; what
pretence to fay, from the year 1679, that the univerfity
of Cambridge was not intitled as fully and beneficially to
the king's copy right, as if every word of defcription in
the grants to the king's printer were inferted in the letters
patent 26 Hen. 8. ?

It is like a grant of liberties, by words of reference tot
et taiia, ^c. (Abbot of Strata Marcella's cafe, 9 Co. 26.)

It is clear, that the king may grant this right in rever-
iion to one grantee after another, for different terms of
years, to bind his fuccefTors. — The whole courfe of the
patents ftated in this cafe proves it.

And the king's power is not reltrained at common law,
to a ufage of granting, in matters of royal property ; like
bifhops, who are bound by the ufage of their fees, ever
lince the ftatute i Eliz. or the fuperior officers in the
civil government, who have the authority to grant mini-
flerial offices. They can grant in pofTeffion, but not ia
reverfion.

The office of mafter of the king's bench is granted by
the chief juftice cum vacaverit. So the prefcription is laid
in the record, 32 Hen. 6. cited in Shower's parliament
cafes 112. Bridgman againft Holt.

So the office of regifter of the admiralty is grantable by
the lord high admiral cum vacaverit. In affize, the pre-
fcription is thus laid ; Dyer 152. B^enl, 50. Hunt
againft Ellefden.

III. I come now to the laft point, namely, to confider
the ufdge confequent upon the grants ; which is to be
refpedted as the expofition of time and of the parties.

Ufage and allowance has great weight to bind the kinff
himfelf, in the conftru6lion of his charters ; even againft
the ftri6t rules of law : much more, his grantees.

It Is matter of prerogative to grant things in aSfion,
Therefore general words of the king, granting goods and
chattels^ will not fufficc. But if the king grants liberties
to one, and inter alia all the goods and chattels of felons with-
in fuch a vill ; this IhuU pafs obligations, fpecialties, and
debts due to the felon. For tho' in cafes where they are
not granted as a liberty, they will not pafs without fpecial
words; yet (it is faid) " becaufe all liberties of fuch a
*' nature have been ufed to pafs by fuch words in all ages,
" and been enjoyed by f >rce of them, therefore they ftiall
*' pai^ by luch v/oids at this day, by fuch grant of the
*• king". Thus it was dc\;;rmined upon a reference to
I i 2 the

484 Collegers.

the judges of the court of king's bench out of the ftar
chamber, between the bifhop of Winchefter king's almo-
ner, and Warcupp lefTee of the city of London, on a
grant by Edw. 6. of goods and chattels o^ felons de fe in
South wark.

Confider what the ufage has been.

[I] How the right has been excrcifed, under the king's
appointment or grant, by the king's printer.

[II] How it has been exercifed by the univerfity of

Cambridge.

[I] How the right has been exercifed by the king's
printer.

Tho' there might be king's printers, whofe patents
are not found, or who might be appointed by royal war-
rant without a regular grant ; yet there is no colour to
fuppofe or prefume exclufive grants.

1. As to ancient times.

(i) In fadt, the ftatutes of 19 Hen. 7. (the laft of
that king) were printed in the year 1504 (a year after
Richard Pynfon ftyled himfelfthe king's printer )y not on-
ly by Richard Pynfon, but by Wynkyn de Worde, and
two other printers of lefs note, Richard Faques and Julian
Notary.

(2) Berthclet (the grant of whofe annuity has been
mentioned) had his falary for life, as king's printer. He
lived till 1560.

But Grafton had his patent in 1547 ; printed all the
ftatutes of Edw. 6 ; and had only the revcrfion of Ber-
thelet's falary, after his death. So that the excrcife of
the right was probably concurrent.

2. As to later times.

The law patentee has always claimed a concurrent
right, at leaft from the expiration of former grants to the
king's printer, which were antecedent to his own.

(1) In 1636, the afligns of Moor printed the ftatutes,
without any partnerfhip with the king's printer.

(2) In 1667, the afligns of Atkyns did the fame,, with-
out any partnerfhip.

(3) Since that time, they have regularly and amicably
joined together, to print ilatutes and abridgments of fta-
tutes, to this day, on the foundation of a concurrent
right.

I'his concurrent right is afTcrtcd by the law patentee^
'in the title pngii to Keblc's ftatuteii, printed in 1695 r

where

CoUest*?* 48^5

"where Bin, and Newcomb, as king's printers, are joinc4
with the afllgns of Atkyns.

The fame is afTerted in the very lafl: edition of the ,fta-
tutes^, printed in 1758, addrefled to lord Mansfield, wher^
the name of Lintot is joined with Bafket. .,^

Would the king's printer have entred into fuch agrees
ments to divide profits, and have fufFered the name of th$
law patentee to appear in his title pages, if he had been
advifed, that his Ible exclufive right could be maintained ?

[11] How the right has been exercifed by the univer-
fity of Cambridge.

1. In fome inftances, the univerfity has printed law
hooks ; a celebrated one, Dr Cowell's inftitutes, in the
year 1605, by John Legate at Cambridge, not qiieftioned
by the law patentee.

If they had printed Rolle's abridgment In^Charles th^
fecond's time, they had contended with Col. Atkyns on
very- diiFerent ground from the ftationers company, by
reafon of th^ priority and comprehenfive nature of their
gramt,

2. The printing of the engUJh b'tUe, conflantly to this
time, is a ufer of their grant, not difputed.

Where is the difference between the two cafes, of bibles
and of ftatutes ?

If the general words are allowed to convey one right of
copy from the crown, why not the other ?

3. There is a direct inftance in point. — They print' the
Tidi of uniformity, with the book of common prayer. The
book of comtnon prayer is a copy right of the crown. It is
annexed to the a6t of uniformity ; is made a part of it,
and printed with it. If the univerfity has a right to any
prerogative copies, why not to thefe in queftion ? If they
can print one a6t of parliament, with its appendix, why
not the whole ftatute book ?

4. All this reafoning is ftronger in the cafe of ahridg-
7nents ; which require labour, learning, judgment of an
author, to digeft the matter of them under various heads,
in the order of the fubjeft matter, as well as of the time.

' ' I fhall fay one word on the argument from inconve"
itWJtce; becaufe it was attempted for the plaintiffs.

Ohj.J The publick will fufTer, if there be many royal

printers of afts of parliament and their abridgments,

N'umerous editions from different hands will vary the text,

^nd confound the fenfe : fo that the conftrudtion of the

113, letters

Colleges;

letters patent, contended for by the defendants, is not for
the good of the fubje6l.

Anfw, I. If too many royal printers are appointed or
allowed, the obfervation may have fome weight. But if
two or three vie with one another for the publick efteem ;
their editions will be more corrciSt, than if any one of
them ftood alone without a rival \ and the harveft is fuf-
ficient to encourage them.

2. Is it then to be faid, that the conftru£lion contend-
ed for by the defendants is not for the good of the fubjedl: ?
- — Why ? — becaufe it will diminifh the profits of the king's
printer.— That mull be the ratio decidendi, in the way
they arguel

I agree, it will diminish the profits of the king's prin-
ter : — Then I fay, Ergo it is for the good of the fubje6t.

The court will not do a violence to the conftru6tion of
one grant, to fupport a fort of monopoly in another. It
will rather expound them concurrent rights, than annul
a ufage acquiefced in fo long by all parties, and which has
put a conftruftion on thefe ancient grants, moft honour-
able to the crown, moft equitable to the grantees and tq
the publick, and moft confiftent with principles of la>y
and reafon."

The opinion of the court was as follows :

*' Bafkett againft the univerfity of Cambridge.

The opinion of the judges of the court of king's bench,
on the cafe argued before them in this caufe.

Having heard counfel on both fides, and confidered of
this cafe, we are of opinion, that during the term granted
by the letters patent dated the 13th day of OcSlober in the
1 2th year of the reign of queen Anne, the plaintiffs arc
intitlpd to the right of printing a61:s of parliament and
abridgments of acts of parliament, exclufive of all other
perfons not authorized to print the fame by prior grants
from the crown.

But we think, that by virtue of the letters patent bear-
ing date the 2Cth day of July in the 26th year of the reign
of king Hen. 8. and the letters patent bearing date the
6th day of P'ebruary in the third year of the reign of king
Charles the firft, the chancellor mafters andfcholars of
the univerfity of Cambridge are intrufted with a concur^
rent authority to print acSts of parliament and abridgments
1 cf

Colleges. 487

of a£ls of parliament, within the faid univerfity, upon
the terms in the faid letters patent.

MANSFIELD.
^, o T.DENIS ON.

Nov. 24, 175S. M. FOSTER.

E. WILMOT."

Thus ftands the matter with refpe£t to the univerfity
of Cambridge.

— By what means the aforefaid exprefllon [that the
univerfity of Cambridge hath power to print within the
fame omnes et omnimodos llbros, " which the univerfity
*' of Oxford hath not"] hath dropped from the ac-
curate pen of lord Coke (4 Injl. 228.) doth not appear,
nor is' it material to inquire. It is certain, lord Coke
lived many years after the date of the laft of thofe char-
ters, which grant to the univerfity of Oxford alike power
as i^ granted by the above recited charters to the uni-
verfity of Cambridge. But, to take ofF the prejudice
which may arife from fo great an authority, it is.
prcfumed here to fubjoin the claufes in the feveral Ox-
ford charters, relating to the aforefaid fubje(R:. Which
are thefe :

8 Charles i. Nov. 12. The king grants to the uni-
verfity licence to appoint three printers, either aliens or
natives, refiding within the univerfity, every of whom
fhall have power to print all manner of books (omni-
modos libros) not puhlickly prohibited^ and copies of books,
to be approved by the chancellor or his vicechancellor
and three dodlors (one of whom at leaft to be profeflbr of
divinity) appointed by the chancellor mafters and fcho^
Inrs for the examination of books ; and as well the
fame books, as others wherefoever printed within the
king's dominions or without and approved as aforefaid,
as well within the faid univerfity as elfwhere, to expofe
to fale and fell : And that alien born printers, employ-
ed within the faid univerfity, fhall in all refpeds be
confidered as natural born fubjc£ls, except as to cuftoms
and fubfidies.

8 Charles I. Mar. 13. The king recites and confirms the
former grant ; and further gives leave to every of the uni-
verfity printers to employ two prelfes (notwithftanding a
decree in the ftar chamber 28 Eliz. to the contrary), and
to take two apprentices : And moreover grants, that if
any of the faid printers (hall, under the conditions afore-
I i 4 faid.

Colleger.

faid, print any boolc in any language from any manu-
fcript in any library within the univerfity of Oxford
(the fame never having been printed before) j no per-
fon, without leave of the univerfity, fhall prefume to
reprint the fame for the fpace of 21 years : And the fame
privilege is granted for ten years, as to any books fo
printed by the univerfity printers, which fhall be com-
pofed de novo, and publiflied, by any mafter or fcholar :
Und(.r pain of forfeiture of the furreptitious books in
both cafes.

II Charles i. Mar. 3. Reciting that almoft from the
firft introdu6lion of printing into England there had been
printers in the univerfity of Oxford, who by virtue of
the privilege of the fame univerfity (before any charter,
inhibition, reftriclion, or limitation of printing was made)
had free power of printing books and felling them
throughout the whole realm, as appears from many
printed books and monuments then extant; which pri-
vileges were confirmed by the flatute of 13 Eliz. Since
which time (altho' in the decree of the ftarchamber 23
Jun. 28 Eliz. which allows one prefs to the univerfity,
no reftridlion or limitation of books to be there printed
occurs, except a general provifion for obferving certain
letters patent and commiffions under the great feal, and
certain ordinances for the better government of the com-
pany of ftationers in London) fome queftions having ari-
fen between the company of ftationers and others con-
cerning the exerclfe of the art of printing, certain books
publlckly approved and received had been, by letters patent
of queen Elizabeth, king James, and the then king, pe-
culiarly refcrved to be printed by the company of fta-
tioners and other perfons, particularly Robert and Chri-
flopher Barker, John Bill, and Bonham Norton ; And
reciting alfo the letters patent of 12 Nov. and 13 Mar.
8 Cha. to the univerfity of Oxford, and that now the
London ftationers pretend that all the books fo peculiarly
referved for their printing are books publickly prohlbitcdy
and (as fuch) not within the univerfity privilege, where-
by the univerfity printers are deterred from the free ex-
erclfe of their powers; Therefore the king ratifies and
confirms for ever the aforefaid letters patent, and gives
power to the univerfity to make laws and ordinances
/or the better government of printing within the fame :
And further doth interpret expound and declare, that
thofe books of what kind foever, peculiarly referved to
be printed by the company of ftationers or other perfons

whatfoever.

CoUegesi. 489

whatfoever, are riot, nor ought to be deemed, books
publickly prohibited^ forp.frtiuch as they are rnther fuch as
are comrrionly approved for the publick ufe of all the
king's fubjecls ; and which, if they were publickly pro-
hibited, neither tile company of ftationers' nor any other
perfons could lawfully print and expofe to fale : And
therisfore that it (hall be lawful to tlie printers flationers
or bookfellers of tlie univerfit'y of Oxford, aligned as is
aforefaid in the aforefaid letters patent, from time to time
for ever, to print within the faid univerfity and the pre-
cin(5i:s thereof, according to the form in the faid letters
patent prefcribed, tbe fame books, and every book of what
kind foever, contained in the charters of the ftationers of
the city of London and their fucceffors, or of other prin-
ters whatfoever, and fo peculiarly referved to the printing
of them and their fucceffcrs or afligns, arid alfo all other
books wh'atfoeVer not publickly prohibited as aforefaid ;
as well in the englifh, as in any foreign language, or
mixt therewith i and the fame, fewed or bound, in large
volumes or in fmall as well within the faid univerfity and
the precin<9:s thereof, as elfev/here within the king's do-* ^
minioris, publickly to expofe to fale. And thefe letters
patent are ordered to be conftrued in the mofl beneficial
manner for the univerfity ; notwithflanding any mifre-
citals, or non-recitals, or any other defects or imperfec-
tions whatfoever.

2^. By the 3 ya. c, 5. Every perfon that fhall be a Popifh livings,
popifti recufant convi6t, during the time that he fhall re-
main a recufant, fhall be utterly difabled to prefent to any
benefice, prebend, or any other ecclefiaflical living, or
to collate or nominate to any free fchool, hofpital, or do-
native, or to grant any avoidance of any benefice, prebend,
or other ecclefiailical living : And the chancellor and
fcholars of the univerfity of Oxford, fo often as any of
them (hall be void, fhall have the prefentation, nomi-
nation, collation, and donation thereof lying within the
counties of Oxford, Kent, Middlefex, Su.Tex, Surrey,
Hampfhire, Bcrkfhire, Buckinghamfhire, Glouceflerfhire,
Worceflerfhire, StafFordfhire, Warwickfhire, Wiltfhire,
Somerfetfhire, Devonfhire, Cornwal, Dorfetfhire, Here-
fordfhire, Northamptonfhire, Pembrokefhire, Caermar-
tlienftiire, Brecknockfhire, Monmouthfhire, Cardrgan-
{hire, Montgomeryfhire, the city of London, and in eve-
ty city and town being a county of it felf, lying with-
in the precincts of any of the counties aforefaid : And the
chancellor and fcholars of the univerfity of Cambridge
2 (hall

490 €OlUStS.

fiiall have the pefentation, nomination, collation, andl
donation thereof lying within the counties of EfTex,
Hertfordshire, Bedfordfhire, Cambridgefhire, Hunting-
donshire, Suffolk, Norfolk, Lincolnfhire, Rutlandshire,
Leiceflerfhire, Darbyihire, Nottinghamshire, Shropshire,
Cheshire, Lancashire, Yorkshire, the county of Durham,
Northumberland, Cumberland, Westmorland, Radnor-
shire, DenbiShire, Flintshire, Carnarvonshire, Angley-
feyShire, Merionethshire, GlamorganSliire, and in every
city and town being a county of it felf, lying within the
precin6ls of any of the counties aforefaid.

There are many other particulars concerning fuch pre-
fentations, nominations, collations, and donations ; which
falling in more properly under the title |Bop£tp, are there
at large infer ted.
Licence to 2g. By Can, 36. The univerfities have a concurrent

preach. power v/ith the archbiShops and biShops, in granting li-

cences to preach.
Title for orders. 30. By Can. 33. No perfon Shall be admitted into
facred orders, except he Shall exhibit to the biShop a
prefentation or certificate, that he is provided of fome
church wherein to oiHciate ; or that he is a fellov/, or in
right as a fellow, or to be a conduct or chaplain in fome
college in Cambridge or Oxford, or except he be a ma-
iler of arts of five years Standing that liveth of his own
charge in either of the univerfities, or except he be to be
admitted by the biShop himfelf to fome benefice or curate-
Ship then void,
row far being -^ I . ]sy the Statute of non-refidcncc, 21 H, 8. c. 13.
:hcTn?v"ernt ^'^ '^^ provided, that the fame Shall not extend to any fcho-
fhaii difpenfe lar or fcholars being converfant and abiding for Study,
with non-refi- without fraud or covin, at any univerfity within this
"^^* realm, or without.

But becaufe this privilege and exemption was much
abufed, to the cloaking of idlenefs and diflblute living,
under pretence of Study, divers regulations and limita-
tions hereof were made by the 28 H. 8. c. I J. by which
it is enadtcd, that all perfons who Shall be to any bene-
fice or benefices promoted, being above the age of forty
years, (the chancellor, vicechancellor, commiiTary of the
faid univerfities, or any of them, wardens, deans, pro-
voSls, prefidents, rectors, mafters, principals, and other
head rulers of colleges, halls, and other houfcs or places
corporate within the faid univerfities, or any of them,
do6tors of the chair, readers of divinity in the common
f^hools of divinity in any of the faid univerfities, only ex-
cepted)

Colleges^ 491

cepted,) fliall be refident and abiding at and upon one of
their faid benefices, according to the true intent and
meaning of the faid aft, upon the pains therein exprefTed.
And all and fingular fuch beneficed perfons, being under
the age of forty years, refiant and abiding within the
faid univerfities or any of them, fhall not enjoy the pri-
vilege of non-refidence aforefaid j unlefs he or they be
prefent at the ordinary lecture and ledlures, as well at
Jiome in their houfes, as in the common fchool or fchools,
and in their proper perfon keep fophifms, problems, dif-
putations, and other exercifes of learning, and be oppo-
nent and refpondent in the fame, according to the or-
dinances and ftatutes of either of the faid univerfities,
where he or they fhall be fo abiding or refiant. Pro-
vided, that this fhall not extend to any perfon who (hall
be reader of any publick or common lefture in divinity.
Jaw civil, phyfick, philofophy, humanity, or of any of
^he liberal fciences, or publick or common interpreters
or teachers of the hebrew tongue, chaldee, or greek,
in whatfoever college or place of any of the faid univer-
fities the faid perfons for the time being fhall read the
faid common or publick le6lures ; nor to any perfon
above the age of forty years who fhall refort to any
of the faid univerfities to proceed doftors in divinity,
law civil, or phyfick, for the time of their faid pro-
ceedings,- and executing of fuch fermons, Jifputations,
or ledtures, which thev be bound by the flatutes of
the univerfities there to do for the faid degrees fo ob-
tained.

32. Can. 41. No licence or difpenfation for the keep- What degrees
ing of more benefices with cure than one, fhall be grant- pj^^.^^^^^^'^"^ ^'^^
ed to any, but fuch as fhall have taken the degree of a
mafler of arts at the leaft in one of the univerfities of
this realm. In which cafe alfo, by the ftatute of 21 H,
8. c. 13. he mufl have a chaplainfhip from fome of the
nobility or other perfon qualified to keep a chaplain or
chaplains.

But, by the fame flatute, all do6lors and bachelors
of divinity, doctors of law, and bachelors of law canon,
and every of them, which fhall be admitted to any of
the faid degrees by any of the univerfities of this realm,
and not by grace only, may purchafe licence, and take
have and keep two parfonages or benefices with cure of
fpi^ls (without any chaplainfhip).

33- %

492 Colleges.

Firft fruits and 33- By the I EUz, f. 4. for the reftitution of firft" fruits
deaths. and tenths to the crown, it is provided, that all grants

immunities and liberties given to the univerfities of
Cambridge and Oxford, or to any college or hall in
either of them, and to the colleges of Eaton and Win-
chefter, by king Henry the eighth or any other of the
queen's progenitors or predeceflbrs, or by a6l of pap-
liament, touching the releafe or difcharge of firft fruits
and tenths, fnall be always and remain in their full
llrength and virtue.
Phyficuns and -^^. By the 3 H. 8. t% II. Fof licenfing furgeons by
fuxgtoDs. ^^ bjfhop of the diocefe; it is provided, that the

fame fhall not be prejudicial to the univerfities of Ox-
ford or- Cambridge, or to any privileges granted to
them.

And by the 14 ^ 15 jF/. 8. c. 5. which enac^eth, that
no perfon (hall be fufFered to practice in phyfick throagh-
out England, until he be examined at London by the pre^-
fident and three ele^ls of the college of phyficians -y and
to have from them letters teftimonlal of their exami^
nation and approbation : — — there is an exception*, un-
lefs he be a graduate of Oxford or Cambridge, which
hath accomplilhed all things for his form, without any
grace.
jufticcsofthc 35- ^y the 5 G. 2. c. 18. N"o perfon fhall be a juftic'e
peace of the peace, who hath not lool a year clear of incum-

brances : Provided, that this fhall not extend to any
city or town having juftices of the peace within their
refpe6tive limits ; but that in every fuch city or town,
they may be capable to be juftices of the peace, in fuch
manner as if this a£l had not been made : And provi-
ded alfo, that this fhall not extend to any of the heads
of colleges or halls in either of the two univerfities of Ox-
ford and Cambridge; but that they may be made juftices
of the peace of a^d in the feveral counties of Oxford,
Berks and Cambridge, and the cities and towns with-
in the fame, and execute the office thereof as fully
and freely in all refpedls as if this a(5l had not been
made.

And by the 7 Geo. 2. c. 10. Whereas it hath been
cuftomary for the vkechanccllor of the univerfity and inayor
of the town of Cambridge, to be juftices of the peace
of the county of Cambridge, and it may be inconvenient
to have the faid qualification of 100 1 a year extend to
them ; it is therefore enabled that the faid a(5l fhall not
extend to deprive the faid vicechanccUor of the univerfity

or mayor of the town of Cambridge, from being a ju-
ftice of the peace In the faid county.

And by the i8 Geo. i. c. 10. for the oath of 100 1 a
year qualification to be made by juftices of the peace,
it is provided, that this fhall not extend to any of the
heads of colleges or halls in either of the two univerfities
of Oxford and Cambridge, or to the vicechancellor of
either of the faid univerfities, or to the mayor of the
city of Oxford or town of Cambridge ; but that they
may be and act as juftices of the peace of and in the
feveral counties of Oxford, Berks, and Cambridge, and
the cities and towns within the fame, and execute the
office thereof, as fully and freely in all refpedls, as
heretofore they have lawfully ufed to execute the fame,
as if this a61: had not been made.

36. By the 9 An. c, 5. requiring knights of the fhire ^cn^^ers of
to have 600 1 a year; and citizens, burgefTes, and barons ^" '^"^^'*
of the cinque ports to have 300 1 a year ; and by the

33 G. 2. c. 20. requiring oath to be made of fuch qua-
Jification ; the members for the two univerfities are
excepted.

37. By the 31 Geo. 2. c. 29. and 3 C 3. c. i\. for Affifc of breaa^
the due making of bread, and for regulating the price

and aflize thereof, and to punifh perfons who fhall adul-
terate meal flour or bread ; it is provided, that the fame
fhall not extend to prejudice the ancient right or cuftom
of the two univerfities of Oxford or Cambridge, or either
of them, or their clerks of the market, or the practice
within the feveral jurifdictions there ufed, to fet afcertain
and appoint the alfize and weight of all forts of bread to
be fold or expofed to fale within their feveral jurifdic-
tions ; but that they may from time to time fet afcertain
and appoint the affize and v/eight of all forts of bread to be
fold or expofed to fale, by any baker or other perfon
whatfoever, within the limits of their feveral jurifdic-
tions, and may inquire and punifh the breach thereof, as
fully and freely in all refpects as they ufed to do, as if
this act had not been made.

5r. 5 Car. Cafe of the univerfity of Cambridge. The
iiniverfity claimed by their charter to be clerks of the
market, and that they had power by their office to make
orders, and to execute them : And they made an order,
that no chandler fhould fell candles for more than 4d
halpenny the pound : And bccaufe one fold for 5 d the
pound, they imprifoned him. In this cafe a prohibition
was granted ; for that they could not imprilbn without

courfe

494 CoUeses.

courfe of law ; and as clerks of the market, they had
nothing ro do but with victuals, which candles are not.

Het. 145-

38. In the clofe rolls, fo ancient as the 3 Ed. i. there
is a writ to the mayor and bailiffs of Oxford, to obfervc
the aflize of bread and wine, and to fet a reafonable price
upon viiSluals, as they are bound by oath to the chancellor
and pro6lors. 3 Salk. 383. And by a charter of yet more
ancient date, to wit, in the 39 Hen. 3. we find the afTize
of bread and of ale and wine granted to the faid univerfity.
Wood's H'lji, and Jnt. Univ. Oxon,

In the 5 Rich. 1. The mayor bailiffs and commonalty
of Cambridge were accufed in parliament, that in a tu-
mult there, amongft other enormous offences, they had
broken up the univerfity treafury, and taken out and
burnt fundry the charters and records of the faid univer-
fity : Upon which their liberties were feifed into the king's
hands as forfeited. And afcerwards, the king granted to
the chancellor and fcholars, within the faid town of Cam-
bridge and the fuburbs thereof, the affize, conufance,
and correction of bread, ale, weights, meafures, regraters
and foreflallers, with the fines and amerciaments of the
fame, yielding therefore yearly at the exchequer 10 1*
And certain liberties the king after granted to the faid
mayor and bailiffs, and increafed their former fee farm.
4 iyift, 228.

By the ftatute of the 7 Ed. 6. c. 5. Containing cer-
tain regulations about licenfing wine taverns, it is pro-
vided, "that there fhall not be at any time above the num-
ber of three in Oxford, and four in Cambridge. And
there is a provifo that the fame regulations about the
granting of licences fhall not in "any wife be prejudicial
or hurtful to any of the univerfities of Oxford and Cam-
bridge, or to the chancellor and fcholars of the fame, or
their fucceffors, to impair or take away any of the li-
berties privileges franchifes jurifdidions powers and au-
thorities to them or any of them appertaining or belong-
ing; but that they may enjoy the fame in fuch large
and ample wife, as tho' this a61: had not been made :
So always that there be not any more or greater num-
ber of taverns kept or maintained within cither of the
faid towns of Oxford or Cambridge, than may be law-
fully kept or maintained by the provifion and intent of
this act.

By the I Ja. c. 9. for rcftraining of tipling in publick
houics i it is provided, that the corredtion and punifh-

nient

College)^ 495

m&nt of fuch as (hall offend againft this zSk within
either of the univerfities, fhall be miniftred by the go-
vernors, magiftrates, juftices of the peace, or other
principal officers there ; and that no other within their
liberties for any matter concerning this law fhali in-
termeddle.

And by the 4 Ja, c. 5. for the punifhment of drun-
kennefs ; it is provided, that nothing therein fhall be
prejudicial to either of the tv/o univerfities ; but that
the chancellor maflers and fcholars may enjoy all their
jurifdi6lions rights privileges and charters, as heretofore
they might have done.

By the II ^12 /F. c. 15. and 12 & 13 ^. r. 11.
y! 19. The mayor or other chief officer of every city,
town corporate, borough, or market town, fhall caufe
all ale quarts and ale pints brought to them, to be mea-
fured and fizcd with the flandard, and then figned
ftamped and marked; provided, that nothing there-
in fhall extend to deprive the two univerfities of this
kingdom, or either of them, of their right, privilege,
and ufage of fizing figning fitamping and marking of mea-
fures for beer and ale within their refpe6l:ive limits and
jurifdi6lions ; but that they may enjoy their faid right,
privilege, and ufage.

T. I An. Rujh againfl the chancellor and fcholars of
the univerfity of Oxford, It was moved for a prohibition
to a fuit in the vicechancellor's court againfl certain
brewers, for felling ill beer and falfe meafure ; and the
particular excefs of jurifdi6lion alledged v/as, the exa6ling
juratory caution ; and it was alfo infifted, that tho' they
have the affize of bread and beer by charter, yet a power
to punifh by fine, and proceed according to the civil law,
cannot be by charter. But by Holt chief juftice ; Before
the i^Hen. 8. the univerfity had the jurifdi(R:ion of a
leet, and exercifed it in the vicechancellor's court ; but
the charter of the i/\. Hen. 8. grants them power of tref-
pafTes, and that over all perfons whatfoever, if a fcholar
be party, i SalL 343.

By the 9 Jn. c. 23. which laid a flamp duty upon ale
and wine licences, it is provided, that nothing therein
fhall extend to prejudice any right which the two uni-
verfities of Oxford and Cambridge or either of them have,
or claim to have, to the licenfing any taverns, inns or
alehoiifes within their feveral jurifdi6tions ; but that the
faid univerfities may from time to time grant licences for
any tavcrnv inns and alehoufcs within their feveral ju-

jifdi(Slionn

rifdiiSlions, fubjeci to the faid duties, in as ample mann^
as they might lawfully have grajfited. the fame, if this aft
had not been made.

Bv the 10 Gee. 2. c. 19. It fhall not be lawful for the
chancellor or vicechancellor of the univerfity of Oxford,
or any other officer of that body, to receive or take di-
redly or indirectly, ^ny fee perquifite gratuity or reward,
for granting fuch licences as^forefaid ; nor fhall any fum
of money fee gratuit)- or reward be hereafter paid to any
perfon or perfons for or in refpecl of fuch licences, other
than fuch annual payments in like manner and to the
like ufes, as have been ufual in the univerfity of Cam-
bridge ; any law or cuilom .to the contrary notwithftand-
ing. Provided, that nothing in this act. fhall in any wife
be conftrued, to prejudice or confirm any of the liberties,
privileges, franchifes, jurifdiclions, powers, and autho-
rities, appertaining or belonging to the mayor, bailiiFs,
and commonalty of the city of Oxford, or to any of them ;
but that they may enjoy the fame, as if this act had not
been made.

By the 17 Gcs. 2. c. 40. Whereas divers perfons have
of late taken cellars, vaults, or warehoufes, within the
univerfity of Oxford and precin6ts thereof, in which they
retail great quantities of wine, not having licence from
the chancellor or vicechancellor of the faid univerfity, in
violation of the rights of the faid univerfity, and in pre-
judice of his majefty's revenues ; and whereas the like of-
fences may be committed within the univerfity of Cam-
bridge and the precincts thereof, by perfons felling wine
by retail, not being duly licenfed by the faid univerfm' ;
and whereas the acts of parliament relating to wine li-
cences do not extend to the faid liniverfities : it is enac-
ted, that no perfon fhall fell wine by retail, within either
of the faid univerfities or the precincts thereof, without
licence frora the chancellor or vicechancellor of the uni-
verfity of Oxford, and from the chancellor mafters and
fcholars of the univerfity of Cambridge refpectively, on
pain of forfeiting for every offence 5 1, half to the king,
and half to the informer ; and perfons offending agalnft
this aft may be profecuted and proceeded againft for the
faid forfeitures in the courts of the chancellors or vice-
chancellors rcfpedtively, in a fummary way by fummon-
ing the party accufed ; and on appearance, or contempt
in not appearing (oath being made of the Parrmons),
fuch courts may examine the matter -, and on confcflion

Colleges. 497

of the party accufed, or oath of one credible witnefs,
may give fentence, and ifTue their warrant for levying the
forfeiture by diftrefs and fale, rend ring the overplus ; and
for want of diftrefs, may commit the offender to the houfe
of correction for one month ; and no proceedings herein
fhall be removed by certiorari, until the party before the
allowance thereof fhall find two fufficient fureties to be-
come bound to the profecutor in the fum of 50 1, to pro-
fecute the fame with effe61: within twelve months, and to
pay unto him his cofts and charges of the removal of fuch
fentence and the proceedings thereon, in cafe fuch fen-
tence fhall be affirmed. Provided, that this fhall not

in any wife be conftrued to prejudice or confirm any of
the liberties privileges franchifes jurifdiClions powers and
authorities appertaining or belonging to the mayor bai-
liffs and commonalty of the city of Oxford, or to any of
them ; but that they may enjoy the fame, as if this a£l
had not been made.

By the 26 Geo. 2. c. 31. for llcenfmg alehoufes ; it is
provided, that the fame fhall not in any wife be prejudi-
cial to the privilege of licenfing taverns and other pub-
lick houfes, claimed by the two univerfities or either of
them ; nor to the chancellor mafters and fcholars, or any
officers of the fame, or their fucceffors ; but that they
may ufe and enjoy fuch privilege, as they have heretofore
lawfully ufed and enjoyed.

By the 30 Geo. 2. t-. ig. containing additional duties
and other regulations about wine licences, it is provided,
that nothing in this aft fhall be in any wife prejudicial
to the privileges of the two univerfities, nor to the chan-
cellors and fcholars of the fame ; but that they may ufe
and enjoy fuch privileges as they have heretofore lawfully
ufed and enjoyed.

And by the 32 Geo. 2. c. 19. explaining and amending
the laft mentioned act, it is provided, that nothing in
this or any former act, relating to wine licences, fhall in
any wife be prejudicial to the privileges of the two uni-
verfities, or to the chancellors or fcholars of the fame, or
their fucceffors ; but that they may ufe and enjoy fuch
privileges as they have heretofore lawfully ufed and en-
joyed : any thing to the contrary thereof in any wife
notwithftanding.

Some have doubted, fince the afts about juftices of the
peace licenfing alehdUfes were made, whether the vice-
chancellors in the two univerfities refpedtively have now

Vol. I. Kk a

498 CouecresT*

a power to regulate and controll the felling of alq and
other liquors within their feveral jurifdidtions, as they had
before the making of thofe a6ls j but upon what thofc
doubts are founded, doth not clearly appear. That they
had a privilege by charter to licenfe alehoufes, before the
a(Sl of parliament of the 13 Eliz. is unqueftionable. That
privilege, whether valid or not by charter, was eftabliflied
and made good by that a^t. From thence, to the 2d
year of Geo, 2 no alteration by any a£t was made con-
cerning the power of licenfmg alehoufes. By the a<St of
2 G. 2. c, 28. it was enadled, that no licence fhould be
granted to keep an alehoufe, but at a general meeting of
the juftices for the divifion, and all licences granted o*
therwife fhould be void : But there is a provifo, that no-
thing therein Ihould extend to alter the method or pow^
er of granting licences in any city or town corporate. In
the a<Sb of the 26 G, 2. c. 31. there are feveral other re^
gulations j but with a fpecial provifo, that the fame ihould
not extend to the univerfities, and a recognition withal
(as above exprefled) of the faid privilege of the univerfi-
ties to licenfe taverns and other publick houfes within
their diftrids. And the like is acknowledged, with re-
fpe6l either to taverns or alehoufes, or both, by no Ich
than ten other acls of parliament, as is above fct forth ;
as alfo by two other a6ls, as here follow under the two
next fe(5lions : that is to fay, the faid power is recqgnized
by thirteen drfFerent acls of parliament.
CanUseoflct- 39. By the 9 Jn, c. lo. requiring that no perfons
««^»« (hall carry letters but the poftmafter general or his depu-

ties, there is a provifo, that nothing therein fhall extend
to either of the univerfities, but that they may ufe and
enjoy fuch privileges as heretofore they have lawfully ufed
and enjoyed, and that all letters and other things may be
fent or conveyed to or from the faid univerfities, in man-
ner as heretofore hath been ufed.
Diftillm retting 40- By the 9 Geo, 2. c. 23. After the 29th day of Sep-
B© travel. tcmber 1736, any perfon who hath followed and exer-

cifed the art or bufmefs of diftillation for feven years laft
paft ; or hath fcrved, or on the 25th day of March
1736 was fcrving an apprenticeihip to the fame; fhall
have full liberty and authority to exercifc and follow
any other trade art bufmefs or manufacture, in any city
town or place in England -, any law, charter, grant,
cuflom, or ufagc to the contrary notwithflanding. >^

But by the 10 G^o. 2. c. 19. Whereas fiircc the making
the faid a£t, and under polour thereof, perfons not li-

ccnfeil

ColUgesf. 499

cenfed by the chancellor mafters and fcholars of the u-
niverfity of Cambridge, or by the chancellor or vicechan-
cellor of the univerfity of Oxford, have exercifed and
followed, or may exercife and follow, in the city of Ox-
ford and town of Cambridge, the trades of vintners or
wine fellers, and much evil rule and diforder may be
pra£lifed in taverns not fo licenfed, to the great annoy-
ance of the faid chancellors mafters and fcholars, and
corruption of the youth educated in the faid univerfities ;
it is enacted, that after Sept. 29, 1737, nothing in the
faid a<5l contained fhall extend to prejudice the right
which the chancellor mafters and fcholars of the faid
univerfity of Cambridge, or the chancellor or vicechan-
cellor of the faid univerfity of Oxford, do claim, of li-
cenfing taverns and other publick houfes within the pre-
cincts of either of the faid univ^erfitles; but they may
©njoy the faid right as fully as if the faid act had not
been made. Provided, that fuch diftillers as aforefaid,
who fince the faid 29th day of September 1736, have ex-
ercifed or followed in the faid town of Cambridge the
' trades of vintners or wine fellers, without the licence of
the chancellor mafters and fcholars, fhall have liberty to
exercife the faid trades there, fo as they take out fuch li-
cences before the 24th day of June next following, pay-
ing their proportion for the fame of the money ufuaiiy
and annually paid by the vintners or wine fellers now
licenfed by the faid chancellor mafters and fcholars, and
upon fuch terms, and fubje(5t to fuch regulations condi-
tions reftriftions and power of revocation, as the faid
vintners or wine fellers fo licenfed as aforefaid are fubj^di
to.

41. By the 22 Geo, 2. c, 44. and 3 G. 3. c, 8tf fol- Soldiers fcttiof
diers and mariners who have been employed in the king's "P trades.
fervice, and have not deferted, may fet up fuch trades as they

are apt for, in any town or place within this kingdom ;
— Provided, that this a£t fhall not in any wife be preju-
dicial to the privileges of the univerfities of Cambridge
and Oxford, or either of them ; or extend to give liber-
ty to any perfon to fet up the trade of a vintner, or to
fell any wine or other liquors within the faid univerfities,
without licence firft had and obtained from the vicechan-
cellors of the fame refpcc^ively.

42. In the ftatute i ^ 2 P. ^ M. c, '], which en- p„fons not fret
a<Sleth, that perfons dwelling in the country, and not be- of the aty or
ing freemen of cities or towns corporate refpedlivejy, ^"^"» M\\ti%
Ihall not fell goods by retail within fuch city or or towA ^'^^ ' ^ ^^^'^'

K k 2 corporate j

500

Colleges.

corporate ; there is a provifo, that nothing therein ftiall
be prejudicial to the liberties and privileges of the uni-
veriities of Cambridge and Oxford, or either of them.

43. Whilft the laws for purveyance vi^ere in force, it
was enabled by the 2 ^ 3 P. ^ M, c. 15. that the king*s
purveyors (hould not take grain or victuals within five
miles of Cambridge or Oxford, unlefs when the king or
queen fhould be there or within feven miles thereof.
But now, by the 12 C. 2. c. 24. All purveyance what-
foever is intirely taken away.

44. By the 10 Geo. 2. c. 19. Whereas the letters pa-
tent of king Hen. 8. made and granted to the chancellor
and fcholars of the univerfity of Oxford, bearing date
the firft day of April in the 14th year of his reign ; and

.the letters patent of queen Elizabeth, made and granted
to the chancellor mafters and fcholars of the univerfity of
Cambridge, bearing date the 25th day of April in the 3d
year of her reign ; and alfo all other letters patent by
any of her progenitors or predeceflors, made to either of
the corporated bodies of the faid univerfities ; and all
manner of liberties, franchifes, immunities, quietances,
privileges, view of frankpledge, law days, and other
things whatfoever they were, which either of the faid

- corporated bodies of the faid univerfities had held occu-
pied or enjoyed, or of right ought to have had ufed oc-
cupied and enjoyed, were by authority of parliament in
the 13th year of her reign confirmed to the chancellor

. mafters and fcholars of eitlier of the faid univerfities, and
their fuccelTors ; and whereas doubts have arifen or may

:^arife, whether by any of the faid letters patent liberties
franchifes immunities or privileges, or by any fubfequent
cha^-teror charters, or by the laws and ftatutes of this
realm, the chancellor of either of the faid univerfities, or
the vicechancellor thereof, or his deputy, or any other
perfon, be fufficicntly impowered to correct rcftrain or
fupurcfs common players of interludes, fettled reliyling or
inhabiting within the preciinSis of» either of the faid uni-
verfities, and not wandring abroad ; and whereas the
erection of any playhoufc within the precincSts of cither
of the faid univerfities or places adjacent may be at-
tended with great inconvciiijnccs ; it is ena(fled, that all
perfons whatfoever, who fliall for gain, in any pluyhoLile
booth, or otherwife, exhibit any ftage play, interlude,
Cicw, opera, or other theatrical or dramatical p.erfonii-
ance, or act any part or alfill thwicinjV/ithin the'precin61:s

«f

€0lUUtS. 501

of either of the faid univerfities, or within five miles of
the city of Oxford or town of Cambridge, Jhall be
deemed rogues and vagabonds : and it (hall be lawful for
the chancellor of either of the faid univerfities, or the
vicechancellor thereof, or his deputy refpeftively, to com-
mit any fuch perfon to any houfe of correction within
either of the counties of Cambridge or Oxford rcfpec-
tively, there to be kept to hard labour for the fpace of
one month ; or to the common gaol of the city or coun-
ty of Oxford, or town or county of Cambridge, there to
remain without bail or mainprize for the like fpace of
one month ; any licence of the chancellor matters and
fcholars of either of the faid univerfities, or any thing
in any ftatute, law, Cuftom, charter, or privilege to the
contrary notwithftanding.

45. By the militia adt of 2 G. 3. c. 20. which is in Militia.
force for [even years, &c. No perfon, being a member

of either of the univerfities, fhall ferve perfonally, or
provide a fubftitute to (erv^ in the militia.

46. By the annual a£ls for the land tax, It is provided. Land ux.
that the fame (hall not extend to charge any college or

hall in either of the two univerfities of Oxford or Cam-
bridge ; or the colleges of Windfor, Eaton, Winton or
Weftminfter ; or the college of Bromley ; for or in re-
fpe<St of the fites of the faid colleges or halls, or any of
^he buildings within the walls or limits thereof : or any
matter, fellow, or fcholar, or exhibitioner of any fuch
college or hall, or any matters or uttiers of any fchool;
for or in refpecl of any ftipend, wages, rents, profits, or
exhibitions whatfoever, arifing or growing due to them,
in refpedi: of the faid feveral places or employments, in
the faid univerfities, colleges, or fchools : or to charge
any of the houfes or lands, which on or before Mar. 25.
1693, did belong to the fites of any college or hall.
Provided, that nothing herein fhall be conttrued or taken
to difcharge any tenant of any the houfes or lands
belonging to the faid colleges, halls, or fchools, who by
their leafes or other contracts are obliged to pay all rates
taxes and impofitions whatfoever 5 but that th^y fhall be
rated and pay all fuch rates, taxes, and impofitions. Pro-
vided alfo, that all fuch lands revenues or rents, fettled
to any charitable or pious ufe, as were atteffed in the 4th,
year of /^/VA and M:iry^ fhall be liable to be c'larged ;
and that no other !:mds tenements or hereditaments re-
venues or rents whatfoever, then fettled to any charitable
or pious ufcs, as aforcfaid, fhall be chars-cd.

Kk3 " 47. B/

50 2 Couests.

Dutyu^on 4.7. By the 20 G, 2. r. 3. Every diftln£l charfibet itii '

h.curesand win- ^^jj^.gg or hall in the univerfities, fhall pay the duties

°*^' upon houfes and windows, as if it was one intire houfe.

48. By the 32 G, 2. c. 33. explaining a former a<5^,
viz. 31 G. 2. f. 22. which impofeth a duty upon oftces
and penfions ; it is provided, that nothing in the fatd
a<Sl of the 32 C 2. c. 33. fliall extend to charge any of-
fices or employments in either of the two univerfities.

But there is no provifo for exempting offices in the

univerfities from the duties charged by the faid former 3(9:
of the 31 G. 2. c. 22.

49. By the 18 Eliz. c. 20. (which was made to endure
for feven years, and afterwards made perpetual \) Every
perfon dwelling within five miles of the univerfity and
city of Oxford, or franchifes of the fame, having in his
hands or occupation, to the ufe of himfelf or any other^
the quantity of one yard-land or upward, in tillage, paf-
ture, or other ground, fliall find and fend for the mending
repairing and up-building of the decayed bridges, ways^
and paffages, being within one mile of the faid city, for
every yard-land one wain or draught cart furniflied after
the cuftom q{ the country, with oxen horfes and other
cattle, with all other necefTaries meet and convenient t©
carry things for fuch purpofe, with able men to load and
unload the fame : [But no perfon, not having in pofTef-
fion one yard-land, fliall be liable. 35 Eli%, c. 7. / 26.]
And fliall, by the commandment of certain fupervi-
fors to be appointed by the vicechancellor and mayor
with other jufticcs of the univerfity and city, work
fix days j on pain of forfeiting for every day's default
5 s.

But it is not faid, that It fliall be for fix days yearly ;
but only for fix days ; and thofc to be betwixt the feafts
of St John Baptift and All Saints in that fame year,
^^hich feemeth to have been a miftake ; for in that cafe
there was no need to cna(St that the faid ftatute fliould be
in force for feven years, much lefs afterwards to make it
perpetual.

But by the 35 Eliz, c. 7. Every perfon having one
yard-lai/d or more in his pofljsflion, lying within the faid
five mdes, fliall pay yearly the fum of four-pence, for
every yard- land, before the feaft of pentecoft, to the vice-
chancellor and mayor or their deputy or deputies, to-
wards the amending the bridges and highways, and no
other penalty j with like remedy of diftrefs, as by chc

f^id

€onms* 503

fald former a(5l : (viz. the vicechancellor or mayor or other
their officer may diftrain, and carry away and keep the
diftrefs, till the forfeitures and charges of keeping the
fame fhall be paid.)

Note, a yard-land (virgata terrae) differs in quantity
according to the cuftom of the country, from fifteen tu
forty acres.

Commandments, to be fet up at the eaft end of the
church. See CtJlltrcD*

Here endeth the First Volume,

^jw^yy^wn

:^&

-f.

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