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BOSTON PUBLIC LIBRARY.
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AOAIVIS
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I do allow the Printing of this Book,
enrituled An Abridgment of the
Ecclejiajiical Lawi.
FRA. NORTH.
Imprimatur hie Liber, cm Titulus
AN ABRIDGMENT OF THE
ECCLESIASTICAL LAVv^S.
Guil. Sill, R. P. D.
HENR. Epifc. Lonl
a Sacris Dom.
— " , ,1,11. ^ J^-^u**. <Ji cLiM*^
KBPERrORlVM CAUOKlCVM
'' 'O R, A N '0^"/ '^'
ABRIDGMENT
OF THE
Ecclefiaftical Laws
OF THIS
REALM,
Confiftent with the
fXEMPORAL:
WHEREIN
oints relating to fuel
as come within the Cognizance thereof, are fuccmdlf TreVteT
'^_^A!^^_^.MfA^/^^i'^^"5^ relating to fuch Verfons and things
C&e CSictr etiitfoit Co^reiteu :.
Whcreunto is added Kn APPENDIX
Prindpo Com^cm facile eji ."^r., ^ Reliqmm Cooptare. ThoT^^^^
Proam. Decret. m. ^. T. i.
By JOHN GODOLTHIN, LL D.
L 0 N D 0 i<r '
B/^c^-fiy. againft St. Diinj}an^ Church in FteetftreeL x et "
AOAMS/U,/
THE
Introdu6l:ion.
H E Queftion which King Henry the the Kln^s
Eighth did once put to both the Uni- "^''^''^'"'*''''*
verfities of this Realm , viz. An ali^
quid Author itatis in hoc Regno An-,
glias Pontifici Romano de jure com-
petaty plufquam alii cuicunque Epif-
copo Extero ? being refolved in the
Negative, and that Refolution rati-
fied in the Convocation An. 15" 3 4. an Adl of Parliament
pafled about two years after for the extinguiihing of that
Papal Authoriry in this Realm. This fucceeded fo well
in confequence of what the Convocation ^;^. i5'30. had
before acknowledged him, viz. The Supreme Head on
Earth of the Church of England , that that Supremacy
was like wife after confirmed by kdi of Parliament to
him, his Heirs, and SuccefTours. This is that Supremacy
here tenderly touch'd at in the firft Chapter of the enfu-
ing Ahridgment , and without which all that follows
would be but infignificant and disfigured Cyphers. When
Kjng Henry the Eighth was thus both Parliamentarily
and Synodically invelled herewith, although it was with
A 3 all
The hitrodu^ion.
all the Privileges and Preheminences incident thereto,
yet no more accrued to the Crown thereby, than was le-
gally inherent in it before; yet in regard of the Ufur-
pations, that in divers Kings Reigns had fuccelliveiy in-
vaded the Rights of the Crown in that moll fplendent
Jewel thereof, another Convocation in An. 1531. (to give
the King as it were, Livery and Seifin of the faid Supre-
macy) promifed him in verbo Sacerdotis , That they
would not from thenceforth Aflemble in any Convoca-
tion or Synod without his Majefties Writ, nor make any
Canons or Conftitutions without his Licenfe and confent,
nor execute the fame until! they were Ratified under
the Great Seal of England, All which was done with-
out the lead diminution of any Archiepifcopal or Epif-
copal Power or Privileges in the free exercife of that
Ecclefiaftical Jurifdidion which they anciently enjoyed.
The whole of this defign being onely to ejed the Roman
Fontifex^ and annull his Ufurpation in a matter of that
weighty confequence , to which the Crown was fo un-
doubtedly entituled : And this onely in a way confonant
to that Allegiance, -which every Subjed without diH^'".-
€tion owes to his lawfuli Sovereign in all matters, yaswell
Ecclefiaftical as Civil , within his Majefties Re'afms and
vid. Heyi. Dominions ; whereby the Clergy as well as Laity ^h^mg
f j' "^" allSubje£ts alike , might be reduced not onely to their
Primitive Obedience unto, but alfo to their Dependence
on their own Sovereign in preference to any Foreign Po-
tentate whatever. That the Supreme Civil Power js
alfo Supreme Governour over all Perfcns , and in all
^nhh Cafes caufes EcclefiafticaL u a Rule /^fays the Learned Bifliop
lib. 5. ch. 3. i ay lor ) of Juch great necejjity jor the conduct of Con-
fol. 544. fcience , oj that it is the meafure of determining all
Queflions concerning the Santiion of Obedience to all
Ecclejiafl.cal Laws , the duty of Bifhops and Priefls to
their Princes, the necejfity of their paying Tribute , and
difcharging the burthens^ and relieving the necejfities
of the Republick. It was never known (fay the lame
Lib. 5. cap.4. AuthourJ in the Primitive Church, that ever any Eccle-
^''^^'"'''''^^'fiaftical Lam did oblige the Catholick Church-, mlefs.
thff
The Jntrodu^ion.
the Secular Prince did eftahlijh it. The Ntcene Canons
became Laws by the Refcript of the Emperour Conflan-
tine^ fays Sozomen. When the Council of Conflantimple
was finilhed, the Fathers wrote to the rfmperour Theo-
dofitu, and petitioned, Vt Editlo Pietatis tua coKfir--
metur Synod i fententia. The confirmation of the Canon
and Decrees of the great Council at Ephefus by the
Emperour, is to be feen at the end of the Ads of the
Synod. And Marcian the Emperour wrote to Pa/lad lus
his Prefed a Letter, in which he teftifies, that he made-
the Decrees of the Council of ChaUedon to become
Laws, Ea qux de Chrifttana fide a Sacerdotihiu qui
Chalcedone convener unt, per noflra Precept a Statuta
funt, ^c. Thus alfo the Fathers of the Fittii General Sy-
nod petitioned Jufltnian to confirm and eftablifh their
Canons into a Haw. The fame Prince alfo publiflied a
Novel, in which he commands Vim Legum ohtinere Ec-
clefiafttcos Canones a quatuor SynodiSy Nicena Conftan-
tinopolitana, prima, Ephefina prima & Chalcedonenfi
ezpofitos & confirmatos. Vid. Concil. Tolet. All which
^)^^s it for a Truth, that even in the Primitive
Church<t]ie Supremacy in matters Ecclcfiaflical was in the
Supreme Secular Prince.
Touching Archhijhops, our Malmeshury confefles, that Archht/fjops,
in the Ancienter times of the Britains it was unknown '""'^'^■"'^'°
where the Archbifhoprick was : At the Council of Jrles^
An. 314. Sihefter the Pope is but plain Bilhop, as ap-
pears by the Nomenclature of thofe that were at that
Council. The High Title of Arcbhijhop was for a long
time in ufe in the Eaftern Church, before it came into
the Weft Qa\ For whereas our Be da tells us, That Au- (a) spdm.\n
gufline was Ordained Archbiihop of the Englijh Nation Archsolo^o.
by Etherius Archbiihop of Aries aforefaid, he therein
follows the mode of fpeaking current in his own times :
for Gregory the tlien Pope, in his feveral Letters written
to them, affords neither of them that Title ; no, not
when he bellows the Pall upon Auguftine^ and gives him
the precedency and priority in refped of Tork^ and all(6)B^/Ecci.
otiher Biiliops of Britain {hy Yet the incomparable HJ^-'-i-^.a?'
Billiop
The Introdu^ion,
Bilhop Vjher affirms, that they did not quite deny Arch-
bilhops among the Old Britains, for he proves they had
fuch h but that all Memorials were loft , where Archi-
(OD.T;jT--.epifcopal or Patriarchal Seat refided CO- For although
loVimord. £,„^,), hath been for many Ages the Chiefeft of 5r/-
P'^- ^^- tain, and was no lefs than 1300 years fince reputed Fe^
Qd)A.r.ian.fusOopUum, ^nd J uguft a (J); yet a Modern Writer of
mrc, lib. 4. great Learning and Authority , would have Jork as ttie
more Ancient Metropolis of the Diocefe of the Bntaim
CO Philip Ce) ; and that not onely becaufe it was a Roman Colony
BerteriH,, ^^i^h Lon^oH was not , as Onuphnus C contrary to lo
Sutnb "1. great and plain Authority of Tacim ) doth affirm ( /) :
c. 3. fin. but alfo, for that the Emperour's Palace , and Pratonum
\Pi^X' likewife , Tribunal or Chief Seat of Judgment, was
i^mano. there ,• whence by the old Hiftonan Sparttanus it was
{g)sparmn.c2\\td C hit OS by Way of excellency {g). It muft be
insevero. acknowlcdg'd , that the very Original of things are to
ItTAn. us much clouded in obfcurity and uncertainty ? yet he
m^83.e^c.tJ^at duly confults Antiquity, will find, That what /^df-
Mphusde Diceto writes touching the Original of Epif-
copacy and Archiepifcopacy in Britain , feems to^-/e
the beft Analogy with the truth, comparing o>re Anti-
quary with another touching that Subjed. ^his Ra-
dulphus de Diceto was Dean of London, a very Ancient
Hiftorian, he wrote the Hiftory of England, from A, 1 147.
ton93.inaBook entituled Imagines Hifioriarum; and
in the Prologue to his Chronicle Ahhreviations fays,
That Auguftine ( who by Pope Gregory was fent into
England , An. 600.) after he had Converted Ethelhert
King of Kent to the Chriftian Faith, went in the year
602 to Aries, where he was Confecrated Epifcopus
Anglorum by Ether ius Archbifliop of that place,- and
being returned into Britain fent Laurentius the Pref-
byter, and Petrus the Monk to Pope Gregory, giving
him an account of Britains being converted to the
- Faith , and himfelf made Biihop thereof: Whereupon
the faid Gregory fent them back into England, and with
them feveral Divines to preach the Goipel in this Ifle,
among which the Chief were Me//itus , Juftusy Pauli-
nuSy
The Introdu^ion,
niiSy and Ruffimanus , by whom he alfo fent the Pall to
Auguftine^ and at the fame time wrote him in what man-
ner he fliould Conftitute Bifliops in England, and that in
hccc verha , viz. Per locos fingulos 1 2 Epijcopos or dines,
qui tuce fuhjaceant ditioni , quatenus Lundonienfis Civi-
tatis Epifcopus femper in poflerum a Synodo propria dc"
heat Confecrari^ &c. Ad Eboricum vero Civitatem te
volumus Epifcopum mtttere , quern ipfe judicaveris Or-
dinar e. Ita duntaxat , ut fi eadem Civitas cum finiti-
mi6 locis Verhum Dei receperit , ipfe quoque ii. Epifco-
pos or dine t , (^ Metropolitani honor e fruatur. Quern ta-
men tuce Fraternitatis volumus dijpofitioni fubjacere.
Pojl ohitum <vero tuum ita Epifcopis quos ordinauerit
pr<ejit , ut Lundonienfis Epifcopi nullo modo ditioni fuL-
jaceat. Sit vero inter Lundoni ^ EboriciE Civitatu
Epifcopos in poflerum honoris ifta Difiinllio , ut ipfe prior
"haheatur qui prius fuerit Ordinatus. Tua vero Prater-
nitas Epifcopos quos ordinaveris , qui vel per Epifco-
pum EboraCcK fuerint Ordinati , Sacer dotes etiam totius
Britannia Suhjetios hale at (^hy After the receipt o'[{h)H'iji.AngL
tae^Qrders from Pope Gregory^ the Biiliops of Britain ^^^^^f ^^^f
were coL^ven'd to a Conference by AuguJUne , he having bre. chron.
firfl Ordaii^ed the faid Laurentius as his Suffragan , the ^"'"^^5' 43^'
faid Mellitus BiHiop of London , and the laid Juflus
Bilhop of Rochefter : About which time King Ethelbert
built St. Pauls Church London^ or re-edified the fame {t)^f^ Beda,/.2.
About this time alfo it was, viz. An. 608. that Pope:fi<7-
niface obt;.in'd of the Emperour Phocas , That the
Church of Rome fliould be the Head of all other
Churches , ( That of Conjlantinople having till then
afTumed that Title ) the which was after Decreed fuh
Anathemate in a Council of 6i Bilhops. Afterwards the
i^^idi Laurentius t Mellitus .^ znd Jufius ^ became Arch-
bifliops of Canterbury fucceffively , viz. Laurentius in
An. 615. Mellitus in An. 62x. and Juflus in An. 6^6.
according to the computation of the faid Radulphus ;
by the lad of which Paulinus was Ordained Archbi-
(hop of Tork ( /^ ), and to which Juftus Pope Boni- CO Bed. /. 2.
face wrote in hac verba , viz. Author itati beati Petri *^* ^*
B pra-
The IntrodiMion. ^^
1
pr<gcipiente5 firmamus , ut in Dorobernia Ctvttate fem^
per tn pofterum Metropolitanus totm Britannix locus
haheatur , ownefque Provmcice Regni Angloruni pra-
fati loci MetropolitaniB Ecclefia jubjiciantur. i\gain,
the precedency of the See of Canterbury is recorded by
the faid Rodolphm in thefe words, viz. Sicut Cantia
fubjicitur Romx, quod ex ea fidem accepit, ita Eboricum
fuhjicitur Cantuarice , qu^ eo Pnsdicatores mtftt. Stcut
iqitur Cedes Cantuarix prima fuit in fide , prima fit tn
honore. After Juftus , Honorius was made Archbilhop
of Canterbury , whom Taulinus confecrated at Lin-
coln ' to whom Honorius Pope wrote in hac -verba ^
viz/ Cum Dorobernenfis Jntiftes , vel Eboracenfis de
hac vita tranfierit , u qui Juperefl habeai poteflatem
itu reported alterum ordinandi. Bed. lib. i. cap. i6, Si de Confecratio-
thut VxiAo' ^ilus Archiepifioporum Cantuar. contrartum aliqutd
S'J*rL'S inveneris in Authentico Libra , quam in hoc volumine
Englilh^irc^- reperiatur , adquiefcam in omnibus. And in the year
tiptop, and of ^ p^pg ^0„0rius wrotc unto Honorius Archbifhop
Canterburi of Canterbury in thefe words, viz. Tua Juri/M^ioni
inthe Seventh r^^:-^^ pr^cipimus omnes Angliae Ecclefm (^ Rem;/es ,
Ty7Iril6& Ut in Civitate Dorobernia Metropolitanus ^ Locus &
VuWcTChurch y„of. Archiepifcopatus , ^ Caput omnium Ecclefiarum
fs\^^ZAng\ommfemper in pofieri^^ftrvetur.
That the Archiepifiopal Seat at fork is hkewife of
very great Antiquity, is evident by what is foremen-
tioned touching Paulinus Archbiftiop thereof above one
Thoufand years fince: Our learned Antiquary tells us,
Ex Patriis Scriptorjbus , That Tork was adorned with
an Epifcopal Seat by Conflantius; But if fo, or if that
be the truth which is recorded of Paulinus aforefaid ,
how then could Faganus , fent hither by Pope Eluthe-
rius to King Lucius , to plant the Chnftian Religion,
SdTTbe (as reported) the firft Archbilhop thereof (/)? or
chiepifc. £- how could King Lucius place there one Theodofius^
An u^'o"* which yet is alfo affirmed (m) > Or how could Sampfon
im] Harrif. under the fame King be Bilhop of Tork > as appears by
t'iTcT G.^">i», whoyetfufpeasit, in regard that at the firft
entertainment oi Chriflianity among us, nor Hebrew,.
nor
The IntroduSlion.
nor Greek Names of the New Teftament were fo rife
among the Britains ; and indeed this Sampfon is more
generally referved to fome Ages after , tiJJ King At^
thurs time. Thus the Original of things ( as afore-
faid ) leems full of obfcurity and uncertainty ; yet it is
mod probable, that the firft Billiop of Tork was not till
Conflantines days ; and we ihall find this Biiliop at
Aries , in the Council there held about the year 3 14,
whither ( as himfelf writes in his Epiftle to Chreflus
Bilhop of Syracufe ( « ) he fummoned ( to hear the (n) Eufeb.
Caufe of the Donatifis ) many Bifliops from divers .^"'- ^^*
places. In the lafl Edition of this Council, publilhed by ' * '^'
Jacohus Sermondus at Taris-^ among other Subfcripti- Pag.j?.
ons thereunto , you have out of Britain thefe follow-
ing , viz. Eborius Epifcopus , de Civitate Eboracenfi , See the ai-
Provincia Britannia. Reftitutus Epifcopus, de Civitate^^^^}^^J^
Londinenfi, Provincia fuperfcripta. Adelphus Epif- origines,
copus , de Civitate Colonia Londinenfium , exinde Sa- ?*• '^2.
cerdos Preslyter , Arminius Diacoms. From which
Council at Aries it may be obferved , ( i ) That Tork
vr86.po Archbifhoprick at that time , as neither indeed
was Rd.ne it felf. ( 2, ) That Ehorius Bifhop of Tork
at this Council takes place of Refiitutus Bilhop of Lon^
don, where ( as fome fuppofe ) the Primacy always re-
mained, till tranflated to Canterbury. Whether Con-
flantine the Great ( who is fuppofed to have adorned
Tork with an Epifcopal vSeat , as aforefaid ) were Born
there , and not elfewhere , as fome conceive , is not
eafily, at leaft not exprefly proved out of the Ancients,
lays a Learned Antiquary of Late time ; yet ( fays he ) Eurt. comM..
That Authority leems to be drawn from them, which g"^^°"^°'^''
the Ambafladours ol England made ufe of, and that in
the hearing of the learned World then , both at the
Council o{ Conflance , An. 1414. asalfo at that of Bafil,
An. 143 1. At the Council oi Conftance , there being a
Conteil about Precedency between the Englijh and
French Ambafladours, the Englijh have thefe words,
piz. ' Domus Regalis AngU^e Sanllam Helenam , cum
'fuo filio Conftantino Magno Imperatore , nato in urhe
B 2 Regia
8
The IntroduSiion,
* Regia Eboracenfi , educere comperta efi : The Royal
* Houfe of England^ it is known for certain , brought
'forth Helena^ with her Son Conflantme the Great^
* Emperour, Born in the Royal City Ehoracum. Like-
wife, the Englifli at Bafil oppofing the Precedency of
Caftile , fay thus , viz, ' Conftantium ilium Magnum,
qui Primus Imperator Chriftianus ( lb are their words )
Licentiam dedit per univerfum Orhem Ecclefias con-
flituere , immenfa ad hoc confer em bona , Peternac na-
turn in Eboracenfi Civitate : That C on ft ant in e , uiio
being the firft Chnftian Emperour , gave leave to
build Churches throughout the World , was Born at
Pet erne in the City of Tork. By this they mean Be-
derne , a College of Vicars there , fometime ferving
the Quire, which ( as alfo Chriflclmrch ) called in An-
cient Charters Ecclefla San^^e Trinitatis in Curia Re-
gis^ is verily thought to have been part of the Imperial
Palace in old time ; which feems the more probable by
v/hat Herodian Writes , viz. That Sever us the Empe-
rour, and his eldeft Son Antoninus , fate at Tork about
Private and Common affairs, and gave their Jud^os^t
in ordinary Caufes (<?), as in that of Coccilia ^5o^t re-
covery of Right of PofTeflion ; The Refcript ^r Law of
(/))C.deRei which matter is to this day preferved in the Code (z},
vindicat. whereon the Learned Cuiacius of Great Britain hath
C?)Seid. Ana- made very remarkable Obfervations ( ^^ ). This was
B?itJiif*i. ^^^^ S^ptirMtis Severus , Emperour of iJ!<?wf , and Ma-
iler of the World, who in this Ifle breathed his lail, and
who, when he faw there was nothing to be expeded
but Death , called for the Vm wherein he had ap-
pointed his Allies ( after the OJfikgium ( r ) fhould be
put, and viewing it very exadly, Thoufhalt hold (faid
lk%ti? ""^^^ ) ^^^ ^^ ^^^^ ^^^ World could not contain ( j ).
(i)Dio.caffi- No wonder then , that this City of fo great Renown
nsHift.Rom. and Antiquity , was adorned with an Archiepifcopal
Seat above a Thoufand years fince , as aforefaid ; yet it
never had thofe high Privileges or Prerogatives which
were, and are peculiar to the Archiepifcopal See of Can*
terbury^ whereof the Power (next under the Crown)
of
(o) Herod.
Hift. lib. 3
cap. 7.
COOflilegi-
ura, or the
The Introdu^ion,
of convening Councils and Synods is not the lealt. 6er-
vafius in his Chronicle de Tempore H. z. tells us , That
RICHARDUS CANTUARIENSI5 ' ^nhi-
epifcopHs totius A N G L I i£ Primas ^ Apo(lolk(£ Se-
dis Legatus , Convocato Clero AN Ghi /^^ celehravit
Concilium in Ecclefia Beati P E T R I ^^/ WESTMO-
NASTERIUM 15". kaL Junij Dominica ante Afcen-
fionem Domini An. 1175'. In hoc Confilio ad dexfram
Prim at is [edit Epifcopus LONDONIEN S IS, ijuia
inter Epifcopos CANTUARIENSIS Ecckfi^
Suffraganeos D ECO l^ ATV S preeminet dignitate :
Ad finiftram fedit Epifcopus W I N T O N I E N S [ S ,
quia C ANTO R I S officio prcecellit.
The Church when Difdiocefan d by Death, TranOa- (;^^,^,-^„, ,y
tion or otherwife, or q^uafi viduata whilft the Bilhop is the spiritual'
employed about Tranimarine Negotiations in the Ser- ""'
vice of the King or Kingdom , the Law takes care to
provide it a Guardian quoad Jurifditlionem Spiritm-
lem^ during fuch vacancy of the. See or remote abfence
of the Bifliop, to whom Prefentations may be made, and
6]^-y/hom inftitutions, Admiffions, ^c. may be given;
and xM^ is that Ecclefiaftical OlBcer , whether he be the
Archbiil'op, or his Vicar Genera), or Deans and Chapters,
in whomfoever the Office refides, him we commonly
call the Guardian of the Spiritualties, The Power
and Jurifdidion of this Office in the Church is very
Ancient , and was in ufe before the time of King Ed-
ward the Firil ; it doth ceafe and determine fo foon as a
new Billiop is Coofecrated to that See that was vacant,
or otherwife Tranflated , who needs no new Coniecrati-
on. This Ecclefiaftical Office is in being immediately up-
on the vacancy of an Archiepifcopal See, as well as when
a Biihoprick happens to be vacant. Befide the Prefenta-
tions, Admiffions, Inilitutions, ^c. aforefaid, that this
Oficer is legally qualified for, he may alfo by force of
the Adl of Parliament made in the Five and twentieth
year of King Henry the Eighth , grant Licenfes , Dif-
^enfstipns , Faculties , &c. which together witli fuch
Injirlments^ Refer ipts , and other Writings as may be
granted
10
The IntroduRion,
granted by virtue of the faid Statute, may be had, made,
done, and granted under the Name and beal of the Guar-
dian of the Spiritualties : And in cafe he Ihall refufe to
give the fame an efledtual difpatch, where by Law it may
and ought to be granted^ in every fuch cafe the Lord
Chancellor of England, or Lord Keeper of the Great Seal,
upon Petition and Complaint thereof to him made, may
ifTue his Majedies Writ direded to Rich Guardian of the
Spiritualties, requiring him by virtue of the faid Writ,
under a certain penalty therein limited by the faid Lord
Chancellor or Lord Keeper , to grant the fame in due
form of Law ; otherwife ( and no juft and reafonable
caufe fliewed for fuch refufal ) the faid penalty may be
incurr'd to his Majcfty , and a CommifTion under the
Great Seal iflued to two fuch Prelates or Spiritual per-
fons as Ihall be nominated by his Majefty , impowring
them by virtue of the faid Ad to grant fuch Licenfes,
^c, as were fo refufed to be granted by the Guardian,
^c. asaforefaid,
c^gii' Efli- The firfl thing in order to the Election of a Bilhop, in
r^Eiemon, j-jjg yacancy of any Epifcopal See, is (and ever -kstfi
been fince the time of King John') the Koy d^f Conge
d Ejlire, which being obtained , the Dean ancf Chapter
proceeds to EleEiion. It cannot legally be doubted , but
that the confent of the Dean is not only requifite, but
alfo neceflary to the Eletiion of a Bilhop , as appears by
an Ancient Conteft above five hundred years {\ncQ , be-
tween the Dean^ and Canons of London touching the
Eleftion of Anfelme. Soon after King Stephen came to
the Crown , he conven'd a Council at Wefiminfler vo-
Radulph.de ^^^i fii^t ad Concilium ( fays an Hiflorian ) WILLI-
Diceco^^re.ELMUS DECANUS LUNDONI^, fimul
ReiStxphK. & Canonici. Cum autem haheretur Tratlatus de Concilto
Lundonienfis EcclefjiB tunc vacantu , nee in aliquem^
poffent mtanimiter convenire , recefferunt a Decano Ca-
nonicorum multi, citra confcientiam ejus ANSELMUM
Ahbatem in Ep if cop urn Eligentes. Canonici vero, quos
Decanus halehat Jecum in Men fa die bus fingulis^ ..Ap^
peilaverunt , nee Regis occurrerunt offenfam. Canonici
quidem
The Inirodu^ion.
II
quidem alii , quia quod fee er ant , tarn Regi quam toto
Concilio videhatur iniquum , Regis indignationem plu*
rimam meruerunty quorum aliqui honis Jujs fpoliati Jmt,
The Pope afterwards having on this occafion a folemn
Conference with his Cardinals , Alhericus Hoflienfu
Epifiopus , quod fequitur pronunciavit in Puhlicum ,
Quoniam Eled:io Canonicorum Lundonienfium citra
confcientiam ^ Ajfenjum Decani falia fuit , cujus ejl
Officium in Eligendo Faftore fuo de jure primam vo-
cem habere , Nos earn au^ or it ate heati Petri devoca-
mm in irritum. So that according to this Ancient Pre-
fident, the Election of a Bifhop may not be without the
confent of the Dean ; yet this we find upon Record nigh
as Ancient as the former ; That where at prefent there
was no Dean , there the Election of the Bifliop hath
been by the Canons alone , Canonici Saresbirienfes De- '
canum non hahentes ad pnefens y a Rege prius impetrata^^^^<^^^^i>
Licentia , Fratrem fuum ^ Concanonicum Herebertum '*
Cantuarienfem Archidiaconum , Ajfenfu Communi folem-
niter in Epifcopum Elegerunt. Eleftionem fa^am in
Ftillico recitavit Walterus Pracentor : Eledlioni fad:a
preehult Rex AJfenfum , quam ^ Hubertus Cantuarienfis
Archieptfcopus Au^oritate propria Confirmauit , &c.
Confonant to which method is the adt of Parliament
made in the if of H* 8. whereby it is Enad:ed, That on
the vacancy of every Bilhoprick, his Majefty lliould iflue
out his Writ of Conge d' Ejlire to the Dean and Chapter
of the Church fo vacant , enabling them to proceed to
Eledion of another Biihop ; which ElecStion being re-
turned by the faid Dean and Chapter^ and ratified by the
Royal Aflent, his Majefty ihould ifTue out his Writ to
the Metropolitan to proceed to the Confirmation of the
party Eleded, and taking to himfelf two other Biihops
at leaft , to proceed to Confecration , in cafe he had
not before been Confecrated Bifhop of fome other
Church.
The place of Confecration of Bifhops was anciently at confecratm,
Canterbury , as the Mother- Church not only of that
Province, but of all England -y for when in the time of
R. I;.
12
The IntroduSlion,
R. I. An. 1 191. a Bilhop of Won eft er Eled was to be
Confecrated ^ and Weftminfler the place defign'd for
that folemnity according to the Popes Command, it was
oppofed by the Prior and Covent of Chrifl-church in
Canterbury^ and at a time wheti tlie Archbiihop thereof
( whofe prefence could not but have flrengthned that
oppofition ) was abfent ; yet the faid Prior mdlling on
the Privileges and Cuftomes of the Church of Canter-
bury^ oppoled the faid place of Confecratlon , as appears
by his Letter to the Billiop of Ely , the Popes Legate,
and other Biihops of that Province , in hiec verba , Re-
verend is in Chrifto Domini s & Fratrihus W. Dei gra-
tia Helienfi Epifcopo Apoftolicce fedis Legato^ Domini
Regis Cancellario ^ aeterifque Epijcopjs Cantuarienfis
Ecclefi^ Stiff raganeis^ O. Trior & Convent us Ecclefice
Chrilli Cantuaria: falutem ah Au^ore falutis. Noverit
Chron. Gsr- Santtitas veftra , l^os ad fedem Apofiolicam appe/Iaffe,
'i;di:deTemp. ne Wigornienfis EleUus alias quam in Ecclefia Cantu-
^' ^' arienfi, ficut mons eft, Confecretur, & ne quis veftrum,
qui indemnitati Ecclefia Cantuarienfis vinculo ProfeJ-
fioviis providere tenemini , alias quam in eadem Eccjeja
ejus Confecrationi interejfe prafuwat. And at a Synod
held at Weftminfter under ?. Honor ius 1. in tlfe Reign
of //. I. An. iitd. it was Ordained, That at the Con-
fecraticn of Bilhops nothing Ihould by way of Offerings
be e\a£led or by force required. Statuimus & Apofto-
ilea Authoritate Decernimus , ut in Confecrationibus
Epifcoporum , ^c. nil omnino per violent iam , nifi fpon-
te chlatum fuerit , penitus exigatur. Simeon Dunelm.
HiO", de Geft. Reg. Angl. The like you have Decreed at
another Synod held alio at Weftminfter under P. Inno-
cent z. in King Stephen^ Reign, An. 11 38. Apoftolica
authoritate Sancimus , ut in Confecrationibus Epifcopo-
rum ne quicquam ah Epifcopo vel Miniftris ejus exiga-
tur. Hiit. Richard. Prioris Hagudald. de GeO:. Reg.
Steph. \n the year 112^. wliich was in the Reign of
//. r. at the Council of Three hundred Bilhops convened
at Rome, P. Calixtusi. being Prefident , it was Decreed,
That no Biiliop ihould.be Confecrated, unlefs he were firfi:'
Canoni-
The IntroduSlion.
n
Canonically Eleded. Nu/hs in Epifcopum nifi Canonke
Eleiium Confecret , qmd etfi prtefumptum fuerit , ^
Cwfecratus ^ Confecrator alfyue recuper attorns fpe de-
ponatur. did. Sim. Dunelm. Hift. As that Canon was
not in being, fo the matter thereby ordained, in all pro-
bability was far from being obferved , when Phlegmun-
dm Archbifliop of Canterbury , whom P. Formofus ho-
noured with the Pall, Confecrated no iefs than Seven
Bifliops in one day , in the two and twentieth year of
King Aimed. Chron, Johan. Bromton, Ahbatis Jomalen-
fis. When a Biihop is Confecrated, then may he Con-
fecrate , viz. Churches, ^c. and may ordain Deacons,
(^c. But it was long fmce provided by the Council of
Lateran, under P. Alexander, That the Billiop lliould
not confer Holy Orders on any that were not then, or
fpeedily to be provided with an Ecclefiaftical Living,
EpifcofHS, ft aliquem fine certo Titulo, de quo Secejfaria
vita percipiat, in Diaccnum vel Preshyterum Ordina-
verity tarn diii ei necejjaria fulminiflret, donee ei in
aliqua Ecclefia Convenientia ftipendja militia clericalis
aftgnet, nifi talis forte, qui Ordinatur, extiterit, qui
de fua vel jfaterna har edit ate fuhfidium vita poftt ha-
here. Can. 9. And as touching the Bilhops Confecra-
ting of Churches, it being vulgarly fuppofed that there
is a confiderable piece of Superftition therein, it cannot
but be feafonable here to enquire whether fo or no, or
whether the Confecration of Churches be not truly Pri-
mitive, according to the Judgment of the Learned
Dr. Heylin, To which purpofe you have here his very
words, viz. The place of Pullick Worjhip U called
generally (according to the ftyle of the Ancient Fathers')
by the name of the Church : For Coufe crating or letting
apart thereof to Religious ufes, J find (lays he) fo
great Authority in the Primitive times, as will fuffici-
Cfitly free it from the guilt of Vo^tty : Witnefs the Te-
fttmony which Pope Pius gives of his Sifter Eutorepia
^» an Epiflle to ]n{[usY\tnnm(\s, An.if8 or thereabouts^
for Jetting apart her own Houfe for the ufe and fervice
ff the Church : Witnefs the Teftimony which Me-
C taphraftes
J ^ The IntroduSlkn,
taphraftes gives of Felix the Firft, touching hu Con-
fecrating of the Houfe of CiciUa, ahout the year xyz.
And that which Damafus gives unto Marcellinus, ivho ~
fucceeded Felix, for Confecrating the Houfe of Lucinia
for Religious ufes : Witnefs the famous Confecrationof^
the temple of the Holy Martyrs in Jerufalem, Founded
hy Conftantine the Great, at which almoft aU the Bi-
Ihops in the Eafiern farts were fummoned and called
mether hy the Emperours Writ : and finally [not to
defcend to the following Times) witnefs the S^th Ser-
inon of St. Ambrofe, entituled De Dedicatione BafiliCiS,
Preached at the Dedication of a Church huilt hy Vita-
lianus and Maianus, and the Invitation of Pauiinus,
another Bifliop of that Age, made hy Sulpitius 5everus
hjs ejpecial Friend, Ad Bafilicam qux prorexerat, in
Nomine Domini confummabitur, Dedicandiim, to he
prefent at the Dedication of a Church of h'ls Foundati-
fl». Heyl. Cyprian. Angl. p. 12. ., r -r-
The Decree of Faith made by the Council ot Trent,
was attended with no lefs than Eight Anathematifms ;
the firft whereof was againft him that ihall fay, That
there isnovifible Prieflhood in the New TeiUmenr, nor
any power to Ccnfecrate, &c. For in the beginning of
that Decree it is affirmed, That there is a vifible and
external - Priefthood, in which power is given, by Di-
vine Inftitutrdn, to Confecrate the Eucharifi, &c. In
which Decree the Synod doth alfo condemn thofe who
fay all Chriftians are Prieils, or have equal Spiritual
power, which is nothing but to confound the Ecclefiafti-
cal Hierarchy, which -is inan^ Order, as an Army of
Souldiers; To \N\Mi Hierdrchycal Order do belong
efpecially Bifiops, who ^ve fuperiotir to Prieils. There-
fore one of thefaid A'nathematifmsdidYQZch thofewho
Hift.counc. fay, that there is not an Hierarchy inflituted in the
Trent, lib. 8. ^^^j^q|-^j^ (Church-, by Divine Ordination confiding of
Bilhops, Priefts, and- Mimfters. -The Hiftomn of the
aforefaid Council of Trent tells us^ '■ That the Sixth of
th^^faid Eight- Anat'hdin^tifms''w^$' rjiiich .noted in
Germany, in which an^ Article' of Faith was made of
HieroT'
The IntroduSlion, j e-
Hierarchy; which word and fignification thereof (Jays
key IS Aiifen, not to fay contrary tooths Hdly Scr-iprures • '
and though it was fomewhat Anciently invented, vet^'
the Authour is not known; and in cafd he were, yet fy^vj-
^0 he is an HyperboUcal Writer, not imitated in the
ufe of that word by any of the Ancients : and following
theftyleof the Primitive Church, it ought (y^j^j /^^) Did. lib, s.
to be named not Hierarchy, h^t Hierodicicoma , or Hk-
rodoulia. But Thom^os Fafius, a Canon of f^aleni^h
laid m that Council, Tiiat all doubt made oF the Eccle-
fiaftical Hierarchy, did proceed from grofs ignorance
of Antiquity ,• it being a thing Notorious, that in the
Church the people have alway been governed by the
Clergy, and in the Clergy the Inferiours by the Supe-
riours, untill all be reduced unto one Univerfal Rethur,
which is the Pope of Rome ; and that it was plain that
the Hierarchy confifleth in the Ecclefiaftical Orders,
which IS nothing but an holy Order of Superiours and
Infenours. But Francis For rier, a Dominical of For-
tugal, at the fame time faid, That Hierarchy confifleth
mjurifditiion, and the Council of l^ice placerii it in
that, when it fpeaketh of the Bifhop of Rome, Alexan-
dria and- lintidch, and therefore the handling of Hie-
rarchy not to be joyned with that of Order. Others
were of a Third opihion, viz. That Hierarchy was a
mixture of both, viz. of Order and JurifditFion alfo.
Thus was that Learned Council divided in this high
point of Hierarchy, that though they all agreed the
thing^ yet they could not agree wherein to fix it , whe-"
ther in Order, or in Jurijdi^tion, or in hoth. Nog-
withftanding it is generally agreed. That the Hierar--
chy of the Catholic k Church is proved by the Teftimony
of all Antiquity, and by the continual ufe of the Church,
and that it confifleth of Prelates and Minifters, who are
Ordained by Biihops , in whom reildes' the power of
Confecration, which may be a fufficient warrant for this
digreflion. Which Confecration, as it refers to FerfonSy
is^done per impofitionem mamum, except as to Virgins ;
fof they alfo by the Fontifical Law ate Cmfecrdk Crea-
C i tures,
1 6 The IntroduHion.
tures, , i\io\x^lhty ht Foolijh yirgins, yea, though they
be Polluted Virgins, provided it be not per fiontaneam
(0 voluntariam poOutionemy and there be but putativa
Virginitas in the cafe ; and (hall have not onely Laureo'
lam y'lrginitatis , but alfo yelum Confecrationu^ as they
call it. Cajetan. in Sum. V, Virgin, confecrat. & Lejf. de
Juft. ^ Jur, lik 4. c. z. Duh. \6. ^ alii DD. But
where the Confecration refers to Things, as Churches ,
Chapels , Bells , and other things of the like found,
there it is done per preces together with other Confe-
cration ceremonies, the Epifcopal OrJer therein con-
curring : fo likewife the Confecration of Virgins is per
preces y together with other Ceremonies ufed in the
Confecration of Virgins, Cujm Signum eji^ quod in Pon-
tifcali Romano , uhi de hac Conjecratione agitur , mn
dicatur roganda de aliqua contaminatione , fed de vita^
confcientia & carnis integritate, ut notat. Cajetanus,
Lejf. uhifup.
V^ms. That which is next in view, is fome profpedl of
Deans and Chapters ; there were it feems in former
times certain Deans , who ufurped an Authority beyond
their Dignity or Fundion, and took upon them to ex-
ercife Epifcopal Jurifdidion. Thefe were corfdemn'd in
a Council at Lateran under Pope Alexander, by the
fifth Canon of that Council in thefe words, uiz.. Qm^
niam quidam in quibufdam part thus fub pretio flatU"
untur y qui Decani ^vocantur^ ^ pro cert a pecunia
quantitate Epijcopalem JurifdiSiionem exercent , pra-
fenti Decreto flatuimus y ut qui de aetero id prcefum-
pferity Officio fuo privetur , ^ Epifcopus confer^ndi hoc
officium potefiatem amittat. Chron. Gervaf de Temp.
H. i. Anciently likewife there were certain Deans
which were called Decani Chrijlianitatu ; one of which
kind appears in an Ancient Record nigh Four hundred
years fince , relating to the Privileges of the Priory of-
Si. Aidfiins wherein the words to this prefent purpofe-
fie fe habentf viz. Super Privilegiis Innocentii Pap^ 4.
hie fuperius ad mandatum confervatorum, ut prcetaiium^
efiy publicatis^ Thomas Prior Ecclefm Chrifti Can't..
Guydo
The IntroduHion, i j
Guid o Prior S, Gregorii, ^ Thomas Decanus Chrifti-
anitatis ejufdem Civitat'n ea^em Trivilegia infpexijfe
ad cert'ttud'tnem futurorum tejiattfunt. Qhxon.W. Thorn.
de. Temp. Ed. i. An. iz^^. Heretofore alfo Priors have
been called Deans ; fo we find Ceolmthus or Chelnothus
( in the time of King EtheWed2.x\A his Brother Alured^
Dean of Canterbury to have been called, Foflea Ceol-
nothus Cantuarienfis EccUfits Decanus^ ^c. uh't cum
Decanus ejfety quern nos Priorem vocamus, non modicum
lidere folehat Conventum. And again, Egelnothum,
tf//W Ceolnothum, ejufdem Eccleji^e Chrifti Decanum,
vel Prapojitum^futgn Decanum vocahant, quern nos pofi
adventum Lanfranci Priorem appe/Iamus. Gervaf. Ad".
Pontif. Cant, And where we meet with the word De-
cantay as in the Hiftory of Ranulphus Bifliop of Dur-
ham in the Conquer ours time, written by Simeon the
Monk, Deconatus is thereby intended, it being the Ec-
clefiadical Dignity of him, qui, in Majori Ecclejia , denit
ad minus Canonicis Jive Trehendariis (^ ut uocant ) ful
Epifcopo praejl ; but the DECANVS CHRISTlAm-
Tat IS aforefaid, fo called per Antiquiores Anglos, is fe-
cundum recent iores DECANZjS RVRALIS, quern
Exteri-* ARCHIPRESBTTERVM FICANVM vo-
cant. De quo & de Vrlano vid. Duaren. de Sacr. EccL
minift. & henef. lib, i. cap. 8. A probable conjecture why
anciently he might be called Decanus Chrijlianitatu,
Wc may ( ut mihi videtur^ have from Mr. Selden, in
Notis tf^EADMERUM, pag. 208. Chriflianitas
Cfays he) ^ ea qua ad Chriftianitatem pertinent, paj/im
apud Eadmerum at que alios illius ievi Script or es^ fun-
ilionem Epifcopalem , atque Fori facri atlionem ^ ad-
tninijirationem , feu Officium Epifcopale, ut ufitatius
appeilatur , de not ant . Hinc apud noSy For a facra,
quibus, jure nempe communi fuhnixis aut Epifcopi pra-
funt, aut it qui eo nomine Epifcopos^ utpote quos provo-
care licet , fufcipiunt, Cwtix Chriftianitatis etiamnum
•vocitantur. Gloflar. Hid. Angl. Antiq. uer. Chrifliani-
tas. vid.plurain Vrbis Cantuar. Antiq. pag. 361,
^<53. uhi de Decano Chriftianitatis. But the Deans
here
1 8 The IntroduSlion,
here fpecially meant and intended, are onely fuch as with
the Chapters , according to the ancient and genuine ufe
thereof, areas Semtus Epifcopi to aflift the Bilhop in-
his Jurifdidion. Cathedral Churches being the firft
Monuments of Chriftianity in England. So Dr. Hacket
inParhament, 1640.
.Archdeacons, The Oi5ce and Ecclefiaftical Dignity of Archdeacons,
which you next meet with in this Abridgment, is of
very great Antiquity. There was a Ihr^rp Contefl above
Five hundred years fince, in the time of King i7. i. be-
tween the Archdeacons and the x^riors of Winchejler
and Elji touching the Prefent^tioH of their DifliOps
Eled unto the Metropolitan in order to their Confeci'l-
tion, wherein by the Interlocutory of the (aid Metropo--
litantliQ PnoYS had the Victory. Elora congrua Confe-,
crationis inflante R. Wintonienfis & R. Elyenfis Archi-
diaconiy cum Officiates Epifcoporum dicantur , ad fauM
fpetl^re cmtendebant Officium Eletiiones^ 6fc. prce fen-
tare Metropolitano : W. Wintonienfis ^ S. Elyenfis
Triores in contrarium fentiehant : quam enim in Eccle-
fiis Cathedralihus^ uhi Canonici dtvinis mancipantur
ohjequiis^ Decani Jihi -vindicant dignitatem : banc fi
Monachorum Conventus in Epifcopali fede pr'^min'eat\
[the jure pojfunt vendicare PrioreS. Sed ut omnis in po-
jteruni amputetur occafio Litigandi^ de Interlocutoria
Mctrrfolitani [ententia , ^c. Wintonienfis ^ Elyen-
fis Eletiiy ad Priorum fuorum prtefentationem recepti,
ad Priorum fuorum poftulationem Epifcopi Confecrati
funt,- ' Radulph. de Diceto Imag, Hifl, By the
xr^th Canon of the Council of Later an under Pope
Alexander it was Ordained , That an Archdeacon in his
Vifitation lliould not exceed the number of Five or Se-
ven Horfemen for his Retinue. Chron. Gervaf. de Temp*
H, 2. And as to the Vifitation-Arricles, every BiOiop
and Archdeacon heretofore framed a Model thereof for
thenifelves ,• but at the Convocation in the year 1640. a
bod^ thereof was compofed for the publick ufe of all
fuch ^s 'fexfercifed Ecclefiaflical Jurifdiaion. And by the^
lorefaid Canon of the Council of Lateran^ it was far-
ther
The httrodulHion.
19
ther Ordained, That no Archdeacon in his Vifitation
ihould prefume to exaft from the Clergy more than was
juftly due, Archidlacon't autem five Decani nullai eX'
ati tones in Freshyteros feu Cleric os exercere prdeju-
want. Notwithftanding what toleration the Law al-
lows as to A rchbi(hops, Bilhops, Archdeacons, ■5:c. as to
the number of their Retinue in their Vifitations ,• yet
therein refped: is ever to be had to the condition of the
Churches, Perfons, and Places Vifited, as may plainly
appear by the exprefs words of the Canon aforefaid,
viz. Sane quod de numero evetl'ionis fecimdum toleran-
tiam di^um e(l, in i/Iis locis potent ohfervari, in qui-
Im ampliores funt redditus & Ecclefiafik<e facultates.
In pauperibus autem Locis tantam volumm teneri men-
fur am y ut ex accejfu major urn minor es non dele ant gra-
vari ; ne Jul tali indulgentia illi qui paucior'thus Equis
uti Jolshant hatlenm^ plurium fihi credant poteftatem
indultam. So that no Archdeacon or other having
Right of Vifitation, ought by what the Law allows
them in that cafe, to exercife their power in this matter,
beyond what the condition of the place Vifited will
reafonably admit.
In ail Vifitations of Parochial Churches, made by ^[-Prmmms,
fhops and Archdeacons, the Law hath provided that the
Charge thereof lliould be anfwered by the Procura-
tions then due and payable by the Infcriour Clergy
wherein Cufiom as to the Quantum Ihall prevail ; but
the undue Demands and fupernumerary Attendants of
yifitors have Anciently, as well as in Later times, given
the occafion of frequent Contefts and Complaints : For
prevention whereof it was Ordained by the zstb Canon
of the Council of Lateran under Pope Alexander ,
fire a An. 1179. in'kxsc verha^ ^iz. Cum qui dam Fra-
trum^ Coepifcoporum noftrorum it^ graves in Procura-
tionibus fuhditis Juts exiftunt^ tit pro hujufmodi catifa
interdum ipfa Ecclefiaflica Ornamenta fuhditi compel-
laptw exppnere, & longi temporis vitium hrevis bora
^ confumat. Quocirca JlatuimuSy Quod Archiepifcopi
Parochias Fifitantes^ pro diverfitate Provinciarum &
20 The IntroduSlion,
facultatihus Ecclefiarum 40 vel fo eveilioms t^uMC'
rumy Epifcopi xo vel 30, Cardinales vero 20 vel z^
nequaquam excedunt, Archidiaconi vero Quinqne aut
Septem^ Decani Conftituti fuh Epifcopis, Dmhus Equh
contenti exiflant. PrMlemus etiaw, ne fuhdttos
fuos tall'tis & exa^ionibus Epifcopi gravare pr^fumant.
Archidiaconi autem^ five Decani mllai exatliones^ vel
tallias in Presbyteros, feu Clericos exercere pr^fumant.
vid. Chxon.Gervaf, de Temp. H.x. col. 145"^. can.z 5. where-
by it is evident, that thefe Procurations ought to be fo
moderated by the Biihops, as that they may not become
a burthen or grievance to the Clergy. The lawfulnefs
of thefe Epiicopal and Archidiaconal Rights of Pro-
curations are not to be called into queflion at this day ;
for in all the Eftablilhments and Ordinations of Vica-
rages upon the Ancient Appropriations of Churches,
you fliall find thefe Procurations excepted, and referved
in flMtu Quo : as appears by thefe of Fever jham and
Middleton, when by William the Conquerour they were
Appropriated to the Abbey of St. Auftins ; as alfo by
thefe of Wivelshurg , Stone , and Brocland in Kent,
when they were Appropriated to the fame Abbey by
the Charter of King Ed. 3. and in that of the I^arifli of
Stone aforcfaid, Pentecoftals by name are referved, in
thefe words, Nihilominus folvet Procurationem dehi-'
tarn Archidiacono Cantuarienfi Vifitanti , ^ expenfas
pro Pentecoflalthus faciendis. vid. Chron. W.
Thorne, Appropria. Ecclef. col. 1089. Hifi. Angl,
What Procurations the Archbilbop of Meffena , who
arrived in England as the Pope's Legate in the year
ii6i. exaded and extorted from the Biihops and Ab-
bats with great violence in the Reign of King H. 3. you
may find in Matthew Paris, But by the fourth Canon
of the Council at Romewn^t Pope Alex.y An. 11 80.
it was Ordained , That Bi/hops and Archbiftiops in their
Vifitations (hould not overcharge the Church of their
Bounds, with unneceflary charges and expences, fpeci-
ally the Churches that are poor.
No
The Introduliion. 2 1
No fooner had Princes in Ancient times aflign'd and ^iocefan
limited certain Matters and Caufcs controverfal to the ^^*^^^^^^*'-
cognizance of Bilhops, and to that end dignified the
Epifcopal Order with an Ecclefiaftical Jurifdidion ; but
the multiplicity and emergency of fuch affairs requir'd
for the difpatch and management thereof the alTiftence
of fuch fubordinate Ordinaries, as being experienc'd in
the Laws adapted to the nature of fuch Caufes, might
prove a fufficient Expedient to prevent the avocation of
Biihops , by reafon of fuch Litigious interpofitions,
from the difcharge of the more weighty Concerns of
that Sacred FunSion. Hence it is fuppofed, that the
Ecclefiaftical Office of Diocefan Chancellours, Commifla-
ries, and Officials originally came into ufe and pra<9:ice,
the place of their Seflion anciently ftyled the Bijhops
Conhjiory. Among the many Learned Ecclefiedttls^ who
have fupplied that Ecclefiaftical place, William Lind-
wood (who finilhed his induftrious and ufefuU work of
th& Provincial Conjlitut ions about the year 1431. in tht
time of King Henry the Sixth ) feems to be of the high-
eft Renown; his Education was in the Univerfity of
Cambridge^ firft Scholar of Gonvil, then Fellow of Pern-
Broke- hall ^ his younger years he employed in the ftudy
of the Imperial and Canon Laws; afterwards became
Keeper of the Privy Seal unto King Henry the Fifth,
by whom he was honoured with an Embaftie to the
Crowns of Spain and Portugal. After the King's death
he reailiim*d his Officials place of Canterbury^ and then
collected the Conftitutions of the Fourteen later Arch-
bifliops of Canterbury , from Stephen Langton unto
Henry Chichley, unto whom he dedicated that highly
to be efteemed Work, his Glofs thereon, being in it felf
as a Canonical Magazine, or the Key which opens the
Magazine of the whole Canon Law. It was Printed at
Paris, An. 1505-. at the coft and charges of PT/zJ^/^w
Bretton Merchant of London, revifed by the care of
Wolfangus Hippolitus , and Prefaced unto by Jodocu^
Badius. This Famous Lindwood was afterwards made
Bjhop of St. Davids,
D By
22
The Introduction.
CourtsEcclefi' By the Grant of William the Conquerhur the Bifhops
aSimX' originally had an entire Jurifdid:ion to Judge all Caufes^
relating to Religion , for before that time the Sheriff
and Biihop kept their Court together. He granted alfo
to the Clergy Tithes of Calves, Colts, Lambs, Woods,
Mills, ^c. So that before the Conquefl there were no fuch
Courts in England as we now call Courts Eccleftaflical
or Spiritual, for Anciently the Billiops fate in Judgment
together with the Secular Judges and Sheriffs on the
fame Tribunal, fpecially about Eafler and Michaelmafi-,
which appears by Mr. Selden in his Notes on Eadmerus,
pag. 167. as alfo by the Laws of King Mtheljlane. De-
hent Epifeopi cum Seculi Judicihus interejfe Judiciis,
ne permit t ant fi poffint, ut illinc aliqua pravitatum
germina pullulaverint ; ^ Sacerdotihus pertinet in
fua Dioecefi, ut ad retium Jedulo quemcunque juvent,
fiec patiantur jj pojjint^ ut Chriflianus aliquis alii no-
aeat, ^c. Chron. Jo. Bremton. de Leg. Mthelfl. Reg.
And in the Preamble to the Laws of that King you will
find thefe words, 'viz. Debet etiam Epifcopus fedulo
pacem & concordiam operari cum Seculi Judicihus*
Yea,- long after the Conquefl, in the Reign of H. zl
An. 1 164. by his Laws made at Clarendon the Bifhops
might intereft themfelves with the King's Secular Judges,
where the matter in Judgment extended not to diminu-
tion of Members, or were Capital. An. 11 64. Congre-
gati funt Pr^Jules & Proceres Anglicani regni apud
Clarendoniam. Rex igitur Henricus, ^c. Then it fol-
lows in Lege undecima, viz. Archie pifcopi & Epifeopi ^
6fc. Jicut Barones c^teri delent interejfe Judiciis Cu-
ria Regis cum Baronihus, ufque perveniatur in Judicio
ad 'diminutionem Memhrorum, vel ad mortem. Not-
withftanding, at the fame time the Bifliops Ecclefiaftical
Courts, as alfo the Archdeacons Courts, were ellabliflied
in this Kingdom, and farther ratified and confirmed by
thefe very Laws of King H. z. made at Clarendon, as
appears by th(? Tenth Law, and that immediately fore-
going the Premifles, in hcec uerha, viz. Qui de Ciri-
tate,^ ud Caftello^ vel Bur go, vel dominico manerio
* ' D.omini
The lntrodu[iion, 22
Domini Regis fuerit^ ft ah Archidiacono vel Epifcopo
de aliquo delicto Citatus fuerity unde deheat eis Refpon'
dere, C^ ad Citationes eorum noluerit fatisfacere , tene
licet eum fuh Inter dith ponere^ fed non debet, ^c. ^
exinde poterit Epifcopus ipfum Accufatum Eccleftaftica
Juftitia coercere. Chron. Gervaf. de Temp. H, 2. In
thofe days there was no occafion for that jufl: CompJaint,
which a Learned Pen (as a Modern Authour obferves)
makes, viz. That Courts which jhould diflribute Peace^
do themfelves pra^ife Duels, whilft it is counted the
part of a Refolute Judge to enlarge the Privilege of
his Court. 'Lord Bacon in. his Advanc. of Learn, p. 463.
Aphor. ^6. It was with more moderation exprefled
by him who faid, It was fad, when Courts that are
Judges, become Plaintiffs and Defendants touching the
Bounds of their Jurifdid^ion. In the firft Parliament of
King Edward the Sixth's Reign it was Enad^ed, That
all Procefs out of the Ecclefiaftical Courts fhould from
thenceforth be iflued in the King's Nameonely, and un-
der the King's Seal of Arms contrary to the ufage of for-
mer Times. But this Statute being Repealed by Queen
Mary, and not Revived by Queen Elizabeth , the Bi-
Ihops andl:heirChancellours, Commidaries, and Oilicials,
have ever fince exercifed all manner of Ecclefiaftical Ju-
rifdidion in their own Names, and under the diftin^
Seals of their feveral Offices refpeftive. Alfo by the
Statute of 25 H. 8.c. 19. it being EnacSted, That ail former
Canons and Conftitutions, not contrary to the Word of
God, the King's Prerogative, or the Laws and Statutes
of this Realm, fhould remain in force, until! they were
review'd by Thirty two CommiiTioners, to be ap-
pointed by the King, and that Review being never made
in that Kings time, nor any thing done tiierein by King
Ed. 6. (though he had alfo an A61 of Parliament to the
fame efied) the faid Ancient Canons and Conftitutions
remain'd in ' force as before they were ; whereby all
Caufes Teftamentary, Matrimonial, Tithes, Inconti-
r;ency, Notorious Crimes of Publick Scandal, Wiliiillab-
fence from Divine Service, Irreverence, and other Mif-
D 2 demeanours
24 The IntroduHion.
demeanours in or relating to the Church, &c. no punifb^
able by the Temporal Laws of this Realm, were Hi II
referved unto the Ecclefiaftical Courts , as a {landing
Rule whereby they were to proceed and regulate the
Exercife of their Jurildidion. ^// Heyl.«^i y«/>r. p.z, j.
Touching the Ecclefiaftical Jurifdidion, and what Mat-
ters and Caufes Ihould be cognizable in the Ecclefiaftical
Courts of Normandy in the Reign of King Richard the
Firft , upon occafton of a Conteft inter Ecclefiam
ROTHOMAGENSEM^ W I L L I ELM UM
Filium RADULFI, Steward o^ Norma^dj, it was
nigh Five hundred years ftnce finally Accorded, Pub-
liflied, & (Jnter alia) Declared by all the Clergy, That
all Perjuries and Breach of Faith (except in cafe of Na-
tional Leagues, ) all Controverfies relating to Dowries
and Donations propter Nuptias (^quoad Moh^lia) ihould
be heard and determined in the Ecclefiaftical Court ; it
was then alfo fo many hundred years fince farther Re-
folved in hac verha^ viz. Quod diftrilutio eorum qua in
Teftarnento reliquuntur ,. anUoritate Ecclefia fiet , nee
Decinta pars (^ut olim^ fuhtrahetun It was like wife
at the fame time and fo long fince farther Refolved,
That .Si quis fulitanea tnorte, vel quolihet alio Fortuito
Cafu pmoccupatui fuerit^ ut de rebus fuis difponere non
pojjit, Difirihutio Bonorum ejus Ecclefiaftica autiorita'
te fiet. » Radulf. de Diceto. Hift. de Temp. Rich.
I. Regis.
churches and Of all the Chutchcs in Great Britain^ that of Saint
€ha^i'' pattr^ London is of the largeft ftrufture, if not of the
higheft Antiquity : Some will have it in Ancient times
to have been the Temple of Diana, but the Ingenious
fag. 169. Commentatour on Antoninus s Itinerary, though he will
admit that Diana was indeed worfliipped here in the
Roman timts^ and had Temples herealfOj yet he will
not agree it other than a Tradition to aftert, That St.
Tad's. Church was formerly a Temple of Diana ; and
is free to conjcLiure, that Mr. Selden did but fport his
Wit, and was not in good earneft, when he imagined
that London might be called firft Lhan Dien, that is,
the
The IntroduSlion, 2 5
the Temple of Diana {a). The fame may be faid con- C**) cjarif.
ceroing the Temple of ApoSo, on the Ruines of which, Pokof^ml^"
the report is, St. Peters at Weflminfier was founded (F), Poerx Al^gif
The Antiquary will alfo have it, That at Tork was Eel- ^f^^Guii st
Unas Temple; and Minerva s Temple at Bath ^ and phani^sDe^
that from her the Town was called Caer Falladour^ that ^cripczwi.
\Sy the City of Valladian waters {c\ They that '^''^W {c) s^mUn,
have the Church of Rome to be Caput Ecckfiarum^ do "i^*
afcribe it to Pope Bcniface, that he obtained it of the
Emperour Focas^ becaufe the Church of Conftantinople
writ her felf Trimarn omnium Ecclefiarum : This was
fo Decreed in the year 608. by a Council of 6i.Bi(hops
Juh Anathemata {dy At a Synod held at Weftminfler ^^ ^^^' ^^
under Pope Innocent 2. in the Third year of King ^/<?- chron/ ^'
phtn An. D. 1138. it was Decreed, That no Church
fliould be built without Leave firfl obtained from the
Bilhop of the Diocefe, Apojltlica authoritate probihe-
mus, nequis ahfque Licentia Epifcopi fui Ecclefiam vel
Orator turn conflituat (e). By the Fifth Law of tna King (?} Hift. ru
of tht Weft Saxons the Church is made a Sanduary, Si *'''}*J"^^'*; i
quis /it mortis Reus, & ad Ecclefiam fugi at, vitam ^a-Gcft.R.sie,.
beat ^ emendet ficut retlum confulet (/ ). At a Synod C/3L.5«/n<R.
held at Weftminfler in the Reign of H, z. An. 1 175'. it
was ordained then, no Judgments touching Blood or
Corporal puniihment lliould be given in a Church or
Churchyard ; by the Sixth Canon made at that Synod,
Seculares Caufas, in quihus de fanguinis effufione, vel de
pxna Corporali agitur, in Ecclefiis^ vel in Coemeteriis agi-
tart fuh interminatione anathematis prohilemus (^g). By (^jchro.c?«'s
the Fifth Canon made at a Synod held in London during de Temp,
the Reign of Edmond^ Father of Edwin and Edgar, ^''^'
who fucceeded JEthelftane^ at which Synod wereprelent
Odo and Wulft an Archbilliops, provifion was for the Re-
pairing of Churches , viz. Vt ownis Epijcopus reficiat
Dei domos in fuo proprio, ^ Regem ammomat^ ut omnes
Ecclefia Dei fint bene paratce {h). The like you have in Chron. jo.
the9z Law of King Kannte, Ad refeHionem ^^^C/^^ JeLL.' S^»
debet omnis populus jecundum Legem fubvenire (j). At (?) idem de
*a General Council held at Rh ernes under Pope C^//x/aj i^«§'''--K<»n«-
An.''^'^'
26
The IntroduSlion,
'Chunhwar
derts.
An. II 19. during the Reign of //. i. it was Ordained,
That whoever invaded the poflefTions of the Church
fliould be Anathematiz'd ,- Vniverfoj Ecckfarum pof-
fejfiones ^ quae Liheralitate Re gum ^ vel Largitione
Principum concejfie funt ^ inconcujfas in perpetuum, ^
inviolatas ejfe decernimus. Quod fi quis eas aljiulerit ,
aut invajerit , Anathemate perpetuo feriatur. And by
the Sixth Law of Ina aforefaid , if any man fought in
the Church, he lliould forfeit Six pounds,- fi quis in
Ecclefia pugnet , 120 fvlid. emendet. And although it
be now looked upon as Exa^ion for a Parfon to demand
his Funeral dues of burial, where the deceafed is car-
ried out of his Parilh to be buried in another , fo it was
long fince Ordained by the Laws of King Kanute^ leg.
16. Si Corpus aliquod a fua Parochia defer atur in ali-
am^ pecunia tamen Sepultura^ ejus jure in earn Eccleji-
ant pertinehit.
Among other Officers relating to the Church, thofe
of Churchwardens^ Queflmen^ and Sidemen are not to be
omitted ; for although they may be fome of the Lower
Form, yet they are of neceflary ufe, and fuch as without
whofe care many diforders in the Church may pafs un-
punilhed, as well as the concerns thereof much preju-
diced ; for which end and reafon the Law will have
them to be a Corporation, qualifies them to Sue, fubjed:s
them to Suits, and underflands them in the nature of
Ecclefiallical Truftees as Guardians of the Moveable
PofleHions of the Church : Therefore the Canons have
determined, as to the qualification of the perfons Eligi-
ble, the manner of their Choice, by whom, and the
time when, their Oath, Office, Duration, and Account
when and before whom it fhall be made, and how they
(Iiall be finally difcharged.
€onfoiidatkn. By rcafou of the great defolation and ruine of many
Churches and PariOies in the late Unnatural War in this
Kingdom, and otherwife, it hath been judged neceflary
to pafs an Ad: of Parliament for the Uniting of certain
Churches in Cities and Towns Corporate : Notwith^-
{landing which, the Parilhes to remain diftindasto all
Rates,
The Introduliion,
Rates, Taxes, Parochial Rights, Charges and Duties,
andaJi other Privileges, Liberties, and Reipe<5!s what-
foever; wherein it is al^o Ena/fied, That the Patrons of
fuch Churches and Chapels fo united fhall Frefent hy
Turns onely to that Churchy which jhall remain and be
Prefentative from time to time, &c. Provided, That
Parijhes having loo 1. maintenance per An. may not be
Vnited. Alfo the Incumbents of fuch united Paryfhes
mufl be Graduates in fome Vniverfity. And the Oiiners
of Impropriations may beflcw and annex Maintenance
to the Churches where they lie, and fettle it in Trufl for
the benefit of the faid Parjonage or Vicarage,* without
any Licenfe of Mortmain. It is there alfo farther En-
a(ftcd , That if the fettled Maintenance of fuch Parfo-
nage. Vicarage, Churches, and Chapels fo united, &c.
fhaU not amount to the fuH fumm of loo I. per An. clear
and above all charges and reprizes, that then it ft: all
be lawfull for the Parfon , Vicar , and Incumbent of the
fame , and his Succeffours, to take, receive, and pur chafe
to him and his Suceffours , Lands , Tenements, Rents,
Tithes, and other Hereditaments, without any Licenfe
of Mortmain ,♦ any Law or Statute to the contrary not-
withfianding. The Churches and Pariflies in London^
which by that Ad fin«e the Dreadfull Fire are United,'
are thefe, viz. The Pariftes of Al hallow es Bread ilreet*
and St. John Evangelift are united into one Parifh, and
the Church of the former to be the Parijh-Church of the
Parifhes fo united. The Pariftes of St Albafi s Wood-
llreet, and St. Qhvts Siiverilreet are united into one
Pari ft, and the Church of the former to be the Pari ft
Church of the faid Pariftes fo united. The Pariftes of
St. Auftins and St, Faiths are united into one Pari ft, and
the Church of the former to be the Parifh Church of the
faid Pariftes fo united. 1 he like order to be oblerved
in all the of the Parifli Churches that are by that
A6t united.
Touching Dilapidations of Ecclefiaitical Edifices and d?*%v^=
pofTeflions, it may well be prefumed, That the mod of '-'''^■^*
that kind that ever was in the Chriflian World, was in
the;.
28 The IntroduSlion.
the time of Dloclefians Perfecution ; which moved
Conflantine, Son of Cmftantius Chlorus^ who began his
Reign in the year of oiar Lord 310. to give command
for the Re-edifying and Repairing the Temples of the
Chriftians ; which was not onely expeditely put in Exe-
cution, but many new Churches were alfo ereded for
the Convention of the Chriftians; and Idol-Temples
lliut up, until Jul/an the Apoftate reftored the Hea-
thenilh Idolatry. It hath ever belonged to the care
and cognizance of the Church, to make provifion for
the Repair of the Dilapi^atiem of the Church. Thus Je-
iChron. 24. if'f'W^ made it*his bufmefs to repair the Dilapidations
of the Temple : But although Controverfies hence ari-
ling, and incident to this matter, are properly belong-
ing to Ecclefiaftical cognizance, yet they are not onely
Ecclefiafticai perions that are hereunto obliged ,• for al-
though they alone are to prevent and repair, or make
•fatisfadion for what part of the Churches Dowry them-
felves have fuffered to be Dilapidated, whilft in their
own pofleflion ; yet as to the Church it felf, and the
Incidents thereof, others as well as Ecclefiafticks are
obliged to the Repairs thereof; for the Steeple with
the Body of the Church, and all Chapels lying in
Common thereunto, are to be Riepaired by the Joynt
coft of the Parifhioners; and fuch Private Chapels
as wherein particular perfons claim a propriety of Seat
and Sepulture^ are to be Repaired at their own charge ;
hut the Chancel is to be kept" in Repair at the Parfons
coft : yet in all thefe refpeft is chiefly to be had to the
Cufiome of the Place time out of mind^ for that fliall
rule the PremilTes, and will go far to determine, whe-
ther the Fences of the Churchyard are to be made and
repaired at the charge of the Parfon ( who may have
the ground thereof as part of his Glebe ) or at the
charge of the Parifhioners , or of fuch perfons whofe
^^ Land furrounds or abutts on the fame. Suarez faies
vk^.ft Statu That for the better prevention oi Dilapidations , there
Religionism .^35 Anciently a Cuftome in fome places. That fome
jKi,* Is.' fart of the Tithes iliould not be paid to the Clerk,
or
The Introduction, 2Q
or applied to the party Beneficed, but Ihould be referved
for the ufe of the Fabrick of the Church, to repair the
fame, and for the ufe of the Poor ; and were not pro-
perly due to any particular Clerk, ut in ejus dominium
transfer antur^ but to the Church ; not the material
Temple, but to the Church, that is, the Clergy for the
ufe of the Temple. The Executours orAdminiftratours
of a Dilapidatour {land charged in the Ecclefiaftical
Court to the fucceeding Incumbent to make good the
Repairs ; and if fuch Dilapidatour in his life-time Ihall
make a Deed of Gift to defeat the Succeflbur of the effecSt
of his Suit, it is void, 13 Eltz. cap. 10. And the Suc-
ceflbur Incumbent fliall have like remedy in the Ecclefi-
aftical Court againfl fuch Donee or Grantee, as he
might have had againft the Dilapidatour s Executour or
Adminiftratour. Alfo by 14 Eliz. cap. n. it is pro-
vided. That all the Moneys received for " Dilapidati-
ons, Ihall within Two years be employed upon the
Buildings, for which they were paid, on pein of for-
feit of fo much to the King as Ihall not be fo em-
ployed.
When a Church becomes Litigious, and doubt arifes Pamns ani
touching i*he Right of Patronage or Prefentation, in ^'^^^°'^^^'
that cafe the Law hath provided an Expedient for the
Ordinary, whereby his being a Difturber , in cafe he
Collate or Prefent, is prevented ; to which end, and in
fuch cafe the Law directs him to award the Jure Patro-
natus ; wherein the Practice with us at this day • an-
fwers to the pretence of all perfons quorum interefl, with
more exaftnefs and general fatisfadtion, than was anci-
ently practicable according to the Canons and Confti-
tutions of old, as appears by the defe(5t (in this mat-
ter ) of the Seventeenth Canon of the Council at
RomCy An. 1180. which is onely to this efTed:, 'viz.
If a quejlion arife concerning Prefentations of divers
perfons to one Church, or concerning the Gift of Pa-
tronage , // the aforefaid Queftion he not dec ided within
the fpace of Three months, the Blflwp fhall place in the
• E Church
30 The Introdu^ion.
Church the perjon whom himfelf conceives woft watthy.
The Law takes notice of a twofold Jus FatronatuSy the
one Civile, the other Camnicum : The former is that
which is introduced by the Civil Law, and refers to a
Lord or Patron in refped: of his Bondman made Free,
and his Goods : the other, and which onely is here in-
tended, is, That which is inftituted by the Church in
iliew of gratitude to him who either Founded, Built, or
Endowed fome Church ; for which reafon the Bifhops
granted them a certain Right in fuch Churches, which
is commonly called Jus Patronatus, and that by the
Canon Law underftood as Hotiorijicunj, Vtile & One-
rofum. Honorificum, in regard of that obfequious Re-
fpedt due from the Parifli to the Patron, fpecially in that
the chiefeft Seat in his Church is granted to him : One-
rofum^ in that the Patron may lawfully defend his
Church , and prevent the Dilapidations both of the
Church, and of what fhe is Endowed with according to
the way and manner prefcribed in f<7/>. Filiisi6.q.y,
It is alfo called Jus Vtile , becaufe that if any time
the Patron or any defcending from him fliall happen to
fall into decay , in fuch cafe the faid Church is more ob-
lig'd to fupply the neceflities of him and his, than of
any other Poor, c Qucecun^ue cum fequent. For this
reafon alfo it is, and that others may be encouraged to
the like kdis of Piety, the Church ( as a Mark of fpe-
cial grace and favour ) hath granted to fuch Patrons the
Jus Prafentandi^ or a Right to Prefeiit fit perfons to
the Benefice of fuch Churches. This Right or Jus Pa-
tronatus did not belong to Patrons anciently or jure
antiquo, as appears by the Glcfs in cap. Pia mentis -,
yet moft certain it is, That this Right of Patronage
was Jus antiquijjimum , as is evident by cap. Quoniam.
de jure Patronat. And the Lateran Council calls it
Poteflatem^ in qua Ecclefia hue ufque Fatronos fufti'
nuit.
the
The Introdu^ion. ^ i
The prefent Incumbents, Parfons and Vicars, o^Parfonsmi
Churches burnt in London by the late DreadfuB Fire, P^rfinage,
and by Ad of Parliament not to be rebuilt, are by
the faid Adt not deprived of the Tithes, or other pro-
fits formerly belonging to their refpedive Churches fo
long as they Ihall adill ferving the Cure, and other
Offices belonging to their duty in the Parifli-Church.
whereunto their refpedivc Pariflies fliall be united and
annexed by the faid Ad, according to the direftion of
the Ordinary, ^c. Saving to the King's Majefly, hisHeirs
and SuccefTours, the Tentlu and Firfl-Fruits of all fuch
Pahfh-Churches as by force of the faid Ad are united
and confolidated, ^c. yet fo, as that the faid Paribns
and Vicars are by the faid Ad indemnified from the
payment of all Firfl-Fruits , Tenths and Penfions due
and which Ihall be due unto his Majefty , and from all
dues to the Ordinary and Archdeacon , and all other
dues whatfoever chargeable upon them refpedively, un-
til fuch time as they ihall receive the Profits arifing
from the fame, as formerly. And no Procefs to iffue out
of any Court whatfoever, againft the perfons aforefaid,
for their Non-payment of Firft-Fruits, Tenths, Penfi-
ons, or any other the dues aforefaid, ^c. The faid Par-
fons are likewife by the faid Ad indemnified for not
Reading the 39 Articles, or not doing other Things en-
joyned by Law , until fuch time as the faid Churches be
Re-edified : or made fit for Publick Worfhip. The faid
Parfons and Vicars are likewife impower d to lett Leafes
of their Glebe Lands , with the confent of the Patron
and Ordinary, for any Term not exceeding 40 years,
and at fuch yearly Rents, without Fine, as can be ob-
tain'd for the fame: And that no Lapfes incurred upon
any Non-prefentation in due time of any of the Patrons
of the faid Livings fince the faid Fire, fliall any ways
prejudice, or make void the Prefentations that the faid
Patrons have fince made, whereupon any incumbent is
fince Inftituted and Induded, any Law or Statute to the
contrary in any wife notwithflandiog. By the Third
Canon of that great AfTembly of 180 Biihopsat Rome,
E z in
2 2 The IntroduRion.
Bsneficei.
in the Church of Conjiantiniana^ An. 1180. in the Twen-
tieth year of Pope Alexander the Third, it was Ordain-
ed, That no man lliould be admitted to the Office of a
Biihop under the age of Thirty years ; nor that any
fliould be admitted to be a Deacon, or Archdeacon, or to
have the government of a Parifii, untill he were of the
full age of Five and twenty years.
viuYs, Vica- The next Chapter fpeaks of Ficars, Vicarages, and
^jS.p?'' Benefices ; Gervafius a Monk of Canterbury in his Chro-
nicle de tempore H. z. ( under whom a Synod was con-
vened at iVeftminJier, An. 1175-. by Richard then Arch-
bifhop of Canterbury ) acquaints us with an Ancient
Canon made at that Synod, whereby Vicars arc re-
trained from behaving themfelves proudly againft their
Parfons, a piece of Spiritual Infolence not grown quite
out of pradice to this day : it is the Eleventh Canon,
the words are, Illud etiam de Ficariis, qui perfonis fide
^ juramento obligati funt, duximus flatuendum, quod
fi fide "jel Sacramenti religione contempt a Perjonatum
fibi falfo ajjumentes, contra Perfonas fe erexerint , fi
fuper hoc in jure vel cenfejfi vel convitii fuerint, de
ccetero in eodem Epifcopatu ad OfiUcii fui Jp.xecutionem
non admittantur. In all Appropriations of Churches
there ever was, and ought to be, an eftabliiliment of
fufficient Maintenance for the Vicar and his Succeflburs,
pro fuflentatione fua congrua, made by the Billiop of the
Diocefe, by and with the confent of fuch as to whom
fuch Churches are Appropriated : And this, though for
the mod part confifting onely of the Minute Tithes, yet
hath the denomination of a Benefice , or Ecclefiaftical
Benefice, as properly as any Re£tory or Parfonage
whatever; for they 2irQ perpetual Vicars., in whom the
Vicarage or Benefice, is as in Fee, though not properly
in demefne as in Fee, as Temporal Inheritances are ,• and
therefore the word [ Beneficium ] with the Feudifls and
Canonifts is the fame as Feodum or Feudum with- our
Common Lawyers ; • yet fometimes it is oppofed to that
which we call Allodium^ or what a man hath in his qvvn
lyame, and in his own proper Right and abfoiutely,
tor;
The hitroduSlion. 53
for that which is here underftood by Bemficium, may be
poflels'd nomine alienOy & certU juh Legihus ; whicii
may not properly be faid of Allodium , that being pro-
perly what a man doth pofleis nomine propria^ ^ ahfo-
lute: An inftance of this you have in the Grant made
by King William Rufus to Anfelme Archbilhop of Can-
terhurj; Pracepit Rex, ut inveftiretur. Anfelmus cm-
ntlus ad Archiepifcopatam pertinentihuSy at que ut Ci
vitas Cantuariae, quam Lanfrancus juo tempore in Bene-
ficio a Rege tenehat, ^ Ahbatia Sancii Albani ^: quafn^
non folum Lanfrancus, fed & Antecejjores .ejus, habmffe
nofcuntur, in Allodium Ecclefice Qirilli Cantuarien(is
pro redemptione animce fuce per petuo jure tranfirent.
By the Ninth Canon of the Later an Council under Pope
Alexander <i It is prohibited to grant or promile. any
Ecclefiaftical Benefices before they are adlually void;
the reafon of which Canon was, to prevent the defire of
the death of the prefent.Incumbent, by him who by
fuch promife or grant had an expectation to fucceed him
in the Benefice.
In the next place follows the Chapter of Advowfons, Advowfonsi.
which the Canon Law- calls %s Patronatus , being a
power or right of Prelenting one to be Inftituted to a
vacant Ecclefiaftical Benefice ; I fay, Vacant^ becaufe if
the Benefice be not then void, the Prefentation will be
void in Law ; the reafon is, becaufe were it otherwife,
occafion might thereby be given the Prefented to defire
or wiili for the Incumbent's death, cap. Nulla., de Concejf.
Prcehend. And although, what we C3,\i A dvowf on ^ the
Canon Law calls Jus Patronatus; yet every Jus Pa-
tronatus is not an Advowfon, according to the Civil
Law ; for the Jus Patronatus hath a twofold accepta-
tion in the Law ,• the one, - That Right which Lords or
Patrons have on their Bondmen made Free by Manu-
miflion, and fo it is taken xn'ff. de jur. Patron, but this
is not to our prefent purpofe; the other. That Right of
Prefentation to an Ecclefiaflical Benefice, whicli belongs
^o Patrons of Benei^ces and Churches, which in the Law.
IS >lil{,ewifev called Jus: A dvcc atiom'^ \<ai a^^cvirs by cap..
Quia-.
54 7 he Introduction,
Quia Clerici, de Jur, Patronat. And this is that Ad-
vowfon here intended This Right of Advowjom or
Jus Patronatus the Law doth alio diftinguilli into Ec-
clefiafikal and Laical. Touching the Ecclefiaftkal vid.
Covarru. in qq.prati. c. 36. nn. x. which is fo called, not
becaufe an Ecclefiajiick doth enjoy or poflefs it (for io
he may alfo poflefs a Laick Patronage ; ) btit becaufe it
belongs to one for that he hath founded, built, or en-
dowed the Church ^x horn Ecclefiafticuy or by reafon
of fome Redory of a Church, or Ibme Ecclefiaflical
Dignity : as when a Benefice is ereded with money
gotten ex hon'u Ecclefiafikis ; in that cafe he hath Jus
Patronatus Ecclefiaftici\ or Patranatum Ecclefiafttcum :
And fo it is, if one hath the Advomjon or right of Pre-
fentation, becaufe he is a Bifhop, a Dean, or the like ;
this alfo is Jus Patronatus Ecclejja/iici, fo the Glofs, in
Clem. X. de jur. Patronat* & alii. The other kind of
Advowfons or Jus Patronatus Laid is fo called, for
that it belongs to one, becaufe he hath either founded,
built or endowed fome Church, or eredfed fome Benefice
Ex bonis Patrimonialilus. Lejfius de Juftic. ^ jure, cap.
34. de Benefic. Duh. 4. In purfuance of that diftin£tion
it is, that xht Canon Law determines in a different man-
ner in refpec5t of Ecclefiajiick and Laick Patronages,
touching the time limited for Prefentation to a vacant
Benefice; for (according to that Law) if the Patronage
be Laick ^ the Patron is obliged to Prefent within Four
montlis next after the Church becomes void : but if the
Patronage be Ecclefiajlical, then within Six. cap. unico,
de Jur. Patronat. in 6.
Appropriati- Concerning Appropriations of Churches, the firft
thereof fince the Conqueft appears to be that of Fez<er'
fham and Middleton va Kent ^ An. 1070. granted by
iViOiam the Conquerour to the Abbey of St. Aufiins in
Canterbury in manner following, viz. In nomine, 6ic.
Ego Willielmus, &c. ex his qua omnipotens Deus fua
gratia mihi largiri efl dignatus, qucedam comedo Ec-
clefia S. Augultini Anglorum Apofioliy &c. pro falute-
Anima mes ^ Parentum meorum, Pr^ecejforum , (3'
Succef-
am.
The tntrodu^ion. 55
Succeffomm, hared'ttario jure hac funt Ecclejia &
DecimiB duarum Manfionum, viz. Feveriliain t§ iVIid-
dieton ex (minibus redditihus qui , ^c. & omnihus ili*
dem appendentibus., terra., fj^'^^-i prat is, ^ aqua, &c.
Hac omnia ex integro cone e do S. Auguftino, ^ Abbati^
^ Fratribus , ut habeant, ^ teneant, pofftdeant in per*
petHum ; which was afterward Confirmed by Pope
Alexander the Third, and Ratified by Theobald Arch-
biiliop of Canterbury, together with an Eftablifliment
and Ordination of a Vicarage by the faid Archiepilcopal
Authority in each of the faid Churches refped:ively.
The like you have for the Appropriating of Three other
Churches to the fame Abbey, viz. of Wyvelsberg, Stone,
and Brocland in Kent, by the Charter of Ed. ^. above
Three hundred years fince, Confirmed by Pope C/^w^»/s
Bull, and ratified by Simon Mepham then Archbilliop
of Canterbury, with his Eftabhlhment of three perpe-
tual Vicarages to the faid Churches : Which Charter is
to this efleft , viz. Nos de gratia noftra fpeciali, & pro-
C. Lihris, quas prafati Abbas & Conventus nobis Jol-
vent J ike. ConceJfmuS ^ Licentiam dedimus pro Nobis
& hare di bus nojlris, quantum in Nobis eft, ejufdem
Abbati ^ Conventui , quod ipf Ecdefias prceditias Ap- vH.G.
propriare, ^ e as fie Appropri-atas in proprios ufiu ^f- Thorne ?'«/;«.
nere pojfint fibi ^ Succejforibus fuis in perpetuum ( nifi p^Rebf ge,
in hoCy Quod Nos tempore vacationu Abbatite ^r^^//- ftis Abbatum
Ha, Jl contigerit Ecclefias pradiHas^ vel aliquam ea- q^"^"-^^"'
rundem tunc vacare , Nos Jus Prafent^ndi ad eafdem
amitteremus ) ftne occafione, vel impedimento Noflri,
vel haredum nofirorum quorumcunque. Hujus Data efl
fub An. Do. 1349. The Modern Church-Hiftorian of
Britain in his Eleventh Book, pag. 136. calls to remem-
brance, That about ^». i6x6. there were certain jF<?-
offees, a whole dozen of them though not incorpo^
rated by the King's Letters Patents, or any Ad of Par-
liament, yet) Legally {he fay s^ fettled in Truft to pur-
chafe in Impropriations, and that it was incredible (how-
then pojjible to be beUevd^^ what large Sums were ad-
vanced in a (liort time towcirds that woi^i » But then>
^^ The IntroduHion.
vvithall tells us fomewhai that is Credihie, viz. That
there are 9184 Parochial Churches in England, endow-
ed with Glebe and Tithes; but of thefe (when the faid
Feoffees entred on their work) ^845 were either Ap-
propriated to Billiops, Cathedrals , and Colleges , or
Impropriated (as Lay-Fees) to Private perfons, as for-
merly belonging to Ahleys. The Redeeming and Re-
fioring (he does not mean to the Ahheyi) was the defign
of thefe Feoffees , as to thoie in the hands of Private
perfons, but re infecla, the Defign proved abor-
tive.
Commendms. A Commend am or Ecdejia Commendata, fo called in
contradiilindtion to Ecclefia Titulata, is that Church,
which for the Cuftodial charge and government thereof,
is by a revocable Collation cjiicredited with fome Ec-
clefiailical perfon, in the nature of a Truftee, vel tan-
quam Fide iCcmm iff arius, and that for the mod part onely
tor fome certain, time, ahfque titulo ; for he that is //-
ttdarly Endowed, hath the pofieflion of the Church in
his own Name and in his own proper Right during his
life ; hence it is, that in the Canon Law a Church col-
lated in Cpmmendam, and a Church beftov/ed i» 7//«///w:
"are ever oppofed as contraries, vid. Hifi. 0;?c//. Trident.
lih. 6.pag. 600. ^Duaren. de Benefic. lih. 5. cap. 7. Thus
King Edgar Collated Dmftan Billiop of Worcefter to the
Biihoprick of London by way of Commendam ; Rex Ed-
garus (fays Radulph. de Diceto in his Ahhrevia. Chro-
nicorum^ Lundonienfem Ecclefiam propria Pafiore vi-
duatam commifu regendam Dunflano Wigornenfi Epi-
fcopo. Et fie Dunilanus Lundonienfem Ecclefiam Com-
mendatam hahuit, ^ non Titulatam. ditt. Radulph. de
An. 962. It is fuppofed that the firft Patent of ^Com-
mendam retinere granted in England by the King to
any Biihop Eledf, was tliat which. King Henry the Third
by the advice of his Council (in imitation ol the Popes
Commendams then grown very common ) granted by his
Letters Patents to Wengham then Chancellour of £;?g-
land, notwithftanding his infufliciency in the knowledge
of Divinity, to hold and retain ail his former Ecclefiafii-
cal
The IntroduSlion, ^^
cal Dignities and Benefices, whereof the King was Pa-
tron, together with his Bifhoprick ( he then fucceeded
J^u/co Billiop of London ) for fo long time as the Pope
fliould pleafe to grant him a Difpenlation : whofe Dif-
penfation alone would not bar the King to Prefent to
thofe Dignities and Benefices, being all void in Law by
making him a Biihop. He had alfo the like Patent of
Commendam retinere as to his Benefices and Ecclefiafli-
cal Preferments in Ireland. And this Patent of fuch a
Commendam being made by the King, his Lords and
Judges, is for that realbn the more remarkable, uid.
Le Hifi. of the Church of Great Britain^ pag. 84. Ac-
cording to the proper and Ancient Account, Ccmmendams
were originally introduced in favour and for advantage
of the Church which is Commended^ in favorem & uti^
litatem Ecclejiie quie Commendatur. Imola in ca. Nemo,
de Eletl. in 6. fays, that Ccmmendams are not to be
Nifi ex evidenti Ecclejia Commendatce neceffttate vel
utilitate. The diftindion of Temporal and Perpetual
Commendams in the Canon Law is of no great ufe with
us ,• indeed in the Church of Rome, according to the
former mode of Commendams, a vacant Church is Com-
mended eiilier by the Authority of the Pope, i^ it be a
Cathedral ; ca. penult.^ ult. 21. q. i.or by the Autho-
rity of the Biihop, if it be a Church Parochial. This
is commonly Temporal, or for Six months, and is in «//-
litatem Ecclejiie : the other commonly Perpetual, and
are magis in fuhveni ionem eorum, quihus commendantur,
quam ipfarum Ecclejiarum. And a Commendatary for
M^ is the fame in reality with the Titular. Thefe Com-
mendams in their Original were Inftituted to a good
purpofe, but after ufed to an evil end : For when by rea-
fon of Wars, Peflilence, or the like, the Eledion or Pro-
vifion could not be made fo foon as otherwife it might,
the Superiour did Recommend the vacant Church to
fome honed and worthy perfon to. govern it, befides the
Care of his own, untill a Retlour were provided; who
then had nothing to do with the Revenues, but to govern
tHem and confign them to another. But in procefs of
F time
38
The Introduction.
time thefe Commendataries, under pretence of NeceflTi-
ty made ufe of the Fruits, and to enjoy them the
longer, fought means to hinder the Provifion : for re-
medy'whereof, order was taken that the Cowmenda
fliould not continue longer than Six months : But the
Popes by the plenitude of their Power, did exceed thefe
Limits, and Commended for a longer time and at Jaft for
the life of the Commendatary, giving him power to ufe
the Fruits. , • ,
upfe. When any Ecclefiaftical Benefices happen to be void,
the Law provides that they fhall be feafonably fupplied
with meet Incumbents, and will not by any means ad-
mit any long Vacancy, and hath therefore fet a compe-
tent time within which he that hath the original right of
Prefentation in him, lliall difcharge his duty therein, or
the Lapfe ihail incurr to him or them to whom by Law
ah Inferior't ad Superiorem it gradually devolves. This
matter of Lapfe ( m the intent and purpofe thereof,
though not by that denomination ) is very Ancient :
By the Ninth Canon of the Council of Lateran under
Pope Alexander, it i? provided, That Cum Prehendas^
EccUftas, feu qucelihet officia in aliqua Ecclefia vacare
coKtiQerity vel fi etiam mo do vacant^ non dm mane ant
in Jufpenjo, fed in Sex menfes perfvnis qu^ digne Admi-
mjirare v ah ant confer ant ur. Si autem Epifcopus^ uhi
ad eum fpeciaverit, confer re dijiulerit ^ per Capitulum
ordimtur. Quod fi ad Capitulum Eletiio pertinuerit,
^ infra prafcripium terr/ii:^um hoc non fecerit , Epifcc-
pm exequatur. Aitt fi fnte omnes negkxerint^ Metropo-
litanm de ipjis jbfqiie iU.^rum contradi^ione difponat.
vid. Chron. Gf:i vafii de Ten.p H. 2. And by the Eighth
Canon or Conftitution of the Council at Rome in the
year 1180. under Pope Alexander the third, it was
Ordained, ^hat no Ecclefiaftical Office fhould he pro-
mifed to any man before it became vacant by the deceafe
of the Foppur. For (fays the Canon) it is an unrigh-
tecus thing to put any man in expetiation of another
mans Living, whereby he may wifh his Brothers death.
And ivheH any place JhaH happen to he vacani, let // he
planted
The IntroduSlion, ^9
planted again within Six months^ or elfe he who hath
the Right of Plantation (hall lofe it at that time^ and
the Chapter , or Metropolitan Bijhop jhall have power
to provide the vacant place. According to the Canon
Law the Lay-Patron hath but Four months to prefent
to a Benefice, but an Ecclefiaftical Patron hath Six. Pa-
tronatus vero Laicus intra quatuor menfes prafentare
potefl^ Ecclefiajlicus autem Patronus intra Sex menfes.
c. unoj de jure Patron, in 6. But the Pope is not iimited
to any time, fo that he may Collate to fuch Ecclefiafticai
vacant Benefice at what time he pleafes. Papa vero
non eft aliquod tempus pnejixiim^ cum non hahet Superior
rem, qui pojfit ejus negligent iam fupplere. c. alio rum 9.
q, 3. niji in c, Statutum, de Prceh. in 6. Although re-
gularly all inferiour Dignities Ecclefiaflical and Benefices
ought tobebeftowed within Six months of their Vacan-
cy, according to the rule of the Canon Law, Q.cum no-
flrist c. dile^us, & c. poftulaftis. Yet the greater Dig-
nities are by that Law to be conferred within Three
months, Majores vero Dignitates, ut Epifccpales^ de-
lent intra tres menfes trihui. c. ne pro defe^iu^ de Eleti,
Q.poflquam^ ^O.Dift.
Although in ftricftnefs and propriety of Speech, Pre- conation and
fentation rtferrs to the Lay- Patron, and CoUation to thQ^^'^f"'^^^^^-
Bifhop, yet in the Canon Law the words Collation and
Collatour are frequently ufed in a fenfe promifcuoufly re-
lating to them both. Therefore you have it in one
place faid. That Pra^Jentatio H Fundatore fieri folet^
Epifco^o^ vel alteri CoIIatori^ ^ Epifcopus inftituit-
Pnefentatum a Patrcm. Rub. ^ per tot. tit. de Inftit.
& c. quod autem, de jur. Patron. In another Place
it is faid, That Pr^fentatio large dicitur Collatio.
Rebuff, in Prax. Benefco. Reg. de infirm, Benefic, refig-
nanty gloff. 14. nu. 6. poft Barba. in c. Abbatem de Re-
fcript. col, pen. Yea, and fometimes Collation is ge-
nerally taken alfo for Inflitution ; per tex. in ea. una. ut
Ecclefiaft. Benefic. fine diminut. conferant. Although a
Lay-man doth found, build, or endow a Church, yet the
Canon Law allows him not the Privilege of Jus Pa-
F X tronatus
40 The IntroduUion,
Tatronatus or Jtis Trafentandi otherwife than e?s gra-
tia -y for the Canonifts do hold, That de rigors juris nen
poteft Lakus Bcclefiaflka tra^are negotia . z, de Ju-
dk. onely (fay they) the Popes to encourage them in the
founding, building, or endowing of Churches, have
referved that Privilege for them, and confirmed it by a
Law. c. Decern'mus i6. q.y. ^ per tot, tit. de
jur. Fatronat, As the Jus Fatronatus^ fo Frefentation
alfo by the Canm Law is twofold, the one by 2Ln Ecclefi-
d[/?/cj/ Patron, the other by a Lay Patron : This diftin-
£lion is beft known onely to the Canon Law, and al-
though it may be fo in Frefentatkn, yet it is not pro-
perly applicable to Collatkn. The Ecclefiaflkal Patron
(as aforefaid) hath by that Law Six months, to be com-
puted from the day of his having Notice of the Vacan-
cy to Prefent. c. unk. de jur. Patronat. 6. Do. de Rota.
Dec if, ^6%. tit.de Sent. ^ rejud.Decif. 31.^ 845-. tit,
de jiliis Fresh, decif. 4. By the Ecclefiaftical Patron is
meant or intended, that perfon who hath the Jus Fatro'
natus in him ratione Ecclefia feu Benefcii quod pojftdet.
c. dileths de Offic. Leg. c. cum diletius,, de jure Fatro.
But the Lay Patron, who hath the Jus Fatronatus ra-
thne fui patrimonii^ hath onely Four months (as afore-
faid) ad Froefentandum, d. c. uno, yet in his Prefentati-
on he may variare, but that may not be more thany^-
»»el tantum, c.quod autem , de jure Fatr. and this C"«w^-
lative^ non autem ut a primo recedere omnino pojftt.
c.cum autem^ uhi Fan.ihidi So Jikewifeasto Collation
that alfo is twofold by the fame Law, njiz. Necejfary
and Voluntary (adiflin£lion of little ufe with us ;) Nip-
ceffary, which the Collatour is bound to make, as to one
who hath a Mandate from the Superiour Power for the
fame, c. ///5i, ^ c. duohus. de Rejcr. lib. 6. The Volun-
tary Collation, being that which is free in him who hath
power to make the fame.
The Canon pofitively requires, that Examination iliall
AdSon"" ever precede Ordination, Admiflion, Inftitution, andln-
dudlon; and although this be Incumbent on theBilhpp
or Ordinary (when it is in order to a Benefice) before
the
The Introduliion. 41
the S{\ months expire ; yet no obligation lies upon him
toefTedbit, fo foon as the party oflfers his rubmifTionto
an Examination, fpecially if at the fame time the Ordi-
nary be circa cur am Paftoralem. This Examination
referrs to the due quaUfication of the perfon to be Or-
dained or Beneficed, as to his Ability and Converjation.
After this Examination^ and thereon the Ordinarie's Ap-
probation^ the way is open for Admiflion, if no other
Legal Impediment appears to the Ordinary ; yet the
Canon requires, that notwithftanding the Biiliop's Ap-
probation upon the party's Examination, he may not
Ordain him, unlefs he hath inejfeor pojfe, a promife or a
profped of fome Ecdefiaftical Living, whereof to af-
fume the Cure, and whereon to receive fubfiftence, un-
Ms the Ordinary will maintain him untill he be fa pro-
vided, in cafe he hath not of his own wherewith to Tub-
fift without fuch provifion ; for our Law and Pradice
both requires, that they fhould be Incumhents, and not
Mendicants. By the Fifth Canon or Conftitution made
by that great Convention of no lefs than One hundred
and Eighty Bifhops at Rome, under Pope Alexandenhc
Third, ^t was Ordained, That if any Ei (hop fhould Ad-
mit any man to he a Preshyter or a Deacon , ivitbout
the Title of a Place that may afford unto him things ne-
ceffary for the maintenance of his life : Let the Bifhop
himfelf fufiain him, untill he provide a Living for him^
except he he ahle of his own patrimony to fufiain him^
felf. In the Council of Carthage it was Ordained, Quod
nullus ordinetur Clericus, nifi prohatus, aut examine
Epifcoporum, aut popular i teflimonio. cap. Nullus 24
aifl. And by the Council of Pope Mar tin us it was De-
creed, That all fuch as were Ordained Presbyters or
Deacons without Examination, were to he expeltd the
Clergy, c.fi, 24. Dif}. The Subjed- matter, whereon they
are to be Examined differs with us from that ufed in the
Church of Rome chiefly in thefe Three particulars, viz..
Quoad Genus : quoad Patriam : quoad Fidem . vid. c,
^uando 24. Dift. There are feveral ancient Canons
which give tMisJm Examinationis to Archdeacons^ c
adhmt^
^2 77)^ Introdu^iofi.
aSac, &c. ut nofirum, De Offic. Arch, c, fi quu 94. Dift-
yet Rehuffus tells us, that at this day in France they
have loft that part of their Office by a kind of defuetude
or difufe thereof , it now wholly belonging to the Epif-
copal order in that Kingdom, as in this and moft other
• Churches of Chriftendom. c. Si fervus, 54. Dift, c. acce-
pimus de (Etate & qualitate.
Avoidance. Facatio Beneficil, or the Avoidance of an Ecclefi-
aftical Benefice, which you meet with alio in the enfuing
Abridgment, as it is oppofed to Tlenarty, is the want
of a lawfull Incumbent ; during which vacancy the Law
looks on the Church quafi viduata, without her Spi-
ritual husband, and our Common Law on the Pofleflions
thereof as in aheiance. An Avoidance in the caufes
thereof, as pradicable with us, differs much from that
at the Canon Law, where there are thrice as many as are
Rebuff. PraK. j^ ufg ^yith uj. Rehuffus enumerates above Thirty
gfa"adPrX. Caufes of fuch Avoidances, but of fuch relation to the
nom\xx.t. he. Pontifical Conftitutions, that not above a Third part of
§.Monaft. ^^^^ ^^j^g^ pj^^g -j^ ^j3J5 Realm. It is Quieftio juris,
whether a Benefice be void before Sentence Judicially
pronounced, albeit in the Law it be faid. Quod ipfo faiio
fit privatus i> Admitting the Crime to be committed for
which the Law faysheihall be deprived ipfo fa^o ; yet
the Queftion is held in the Negative, unlefs it plainly
appears that the mind of the Legiflatours were otherwife,
as if thofe words were added, viz. Beneficium eo ipfo
vac are, it a ut alter i Lihere poffit conferri. c. Dudum 2. de
Eletl. As when one takes a fecond Benefice Incompatible.
Aquin. z.x.q. Sz.art. 3 , Cajetan. ik Sot us lib. i . de Juft. q. 6.
art. y. Covar.de Matrim.p. 1. cap.6 §.8.««. 9, ^ 13. and ge-
nerally the Modern DD. But the Queftion is put a little
farther. As whether the Benefice be void when it is faid
in the Law, Sit privatus ipfo faSo ahfque alia deck-
ratione ? Covarruvius, Sotus, and Henriquez de Excom.
c. 56. and many other of the later Writers are of Opi-
nion, tiiat it is not void, but that a declaratory Sentence
of the Crime is requifite ; and that Claufe, abfque alio
declaratione, is to be underftood of a declaration of the
penalty
I he Lntrodubiion, 42
penalty incurred, not of the Crime committed ; which
expofition of the words, though it may feem fomewhat
(trained, is notwithftanding by the frequent ufe and
practice thereof among the Canonijls fuiHcientiy con-
firmed. And thofe Laws which fay, that the Benefice
lliall be void ipfo jure, as in Extrav. Amhitiofa^, De reh,
Eccl. do not feem to be taken in that flrid: and rigorous
fenfe, Vt fponte teneatur fe Reus Jpoliare. Lejf. de Juft.
& Jur. lib. 2. cap. 29. de Judice. Dul, 8. nu. 6%, II it
Ihaii hence be demanded, of what force, energy, or ope-
ration then are fuch Laws, whereby a man is ipfo jure
deprived of his Benefice, by reafon either of fome Crime
committed, or another Benefice Incompatible accepted?
the Anfwer which the Canonijls make to it is, That by
the words {jpfo jure privatus Beneficio^ the Offender
doth immediately lofe the very Title he had to the Be-
nefice, infomuch as that he is no longer Dominus Bene-
ficii, yet doth retain the poflefTion thereof, of which he
cannot be Deprived, l^ifi caufa cognita, without a fair
Trial at Law. Glojf. in c. Licet Epifcopus, zS de Pne-
lendii in 6. & DD. ibi. Note, This is not faid by way
of interpretation of thefe words ( ipfo jure ) in any
Statute Law of this Realm, but by way of Expofition
thereof among the Canonifts.
Although the Clergy have ever been had in the highefl: P^^yaliry,
repute both with Prince and People , where the Gofpel
hath been received, and have been honoured with di-
vers Privileges and Immunities above the Laity, yet
the Law hath ever held it as prejudicial to the Church,
That Plures honores Ecclefiafiici uni perfonce fint tri-
huendi. At a Council conven'd at V/eJlminjler in the
Five and twentieth year of the Reign" of H. i. being
above Five hundred years fince, Honorius 2. then Pope,
in this Synod it was Ordained in thefe words, Pracipi-
wus ne uni perfonce in Ecclefta ArchidiaconatHS, aut di'
verfi iribuantur honores. To thi: purpofe is the Third
Canon of the Late ran Council under Pope Alexander^
Quia nonnulli diver fas Ecclefiaflicas Dignitates, ^
plures Ecclefias Parochiales contra S<icrorum Canonum
injiitnta
4^ The IntrodiMion,
inftituta mtuntw aJquirerey ita ut cum unum Officium
i/ix mplere fufficiant, jlipenA'ta fiht vindkent plurmo-
rum, ne id de catero fiat, diftriUius inhihemus, Et
quia tantum qmrundam procejjlit ambit io^ ut mn duos
"jel tres^ fed fex vel plures Ecclefidi perhibeantur ha-
bere^ nee duabus pojfunt debit am provifionem impen-
dere : per Fratres & Coepijcopos noftros hoc emendari
pnecipimus. Likewife Gregory the Tenth, who fuc-
ceeded Clement^ at a Council at Lyons^ Pluralitatem
Beneficiorum Cur at or urn damnauit. Hen. de Kfiyghton.
de Event. Angl. lib. i. In hke manner it appears by the
Fourteenth Canon of the Council at /?tfwf under Pope
Alexander y An. ii§o. That Plurality of Benefices u
there forbidden., as a vice fmelling of Avarice and Am-
hition dangerous and prejudicial to the People., whofe
Souls are negktled by fuch Paflours. One. of the chief-
efl Reafons, why the Law forbids Pluralities., is, be-
caufe it enjoy ns /^f/^^»c^, both which are inconfiftent in
the fame Incumbent. Aquinas lays, That the having of
Two Benefices is not intrinfecally evil^ or Malum in fe,
mr that it is altogether indifferent, but carries in it a
fpecies of Evil., yet fo as that upon due Circumflances
it may be capable of a qualified lawfulnefi. Aquin. quoJ.
lib. 9. art. 15-. To the many inconveniencies, which the
Law doth fpecifically obferve to follow upon Plurali^
ties, this may not impertinently be added, That there-
by the pious Intention of Founders is fru ft rated. The
Council of Trent hath thefe words of it, H<ec Plurali'
tas eft perverfio totius Or dims Ecclefiaftici., Concil. Trid.
Seff. 24. cap. ly. Pope Alexander the Third faid. That
Plurali tas Beneficioram certum confine t animarum pe-
riculnm. c. Quia_ in tantum 7. de Prabend. The CanO'
nifts fpeaking of this Subjeft in reference to Difpenfations,
to falve the matter if polhble, and bring both ends toge-
ther, have found out a very prity diftindion of Benefi-
cia Incompatabilia primi generis, and Incompatabilia fe-
Tufts? Jure ^^^'^^ generis: But we are not concern'd in that Diftindt-
ion In that Council of Trent it was faid by the Bilhoo
of Bit onto, That Plurality of Benefices, unknown to the
Firfl
The Introdu^ion. ac
Firft Ages, was not brought in by the Court of Rome,
but by Biihops and Princes, before the Popes took upon
them to regulate the Matter of Benefices throughout all
Ghriftendom. Yet the Authour of the Hiflory of the
faid Council of Trent ^ lih. z. fays, That Clement the
Seventh Commended to this Nephew Hippolitus, Cradi-
nal de Medku^ in the year i5'34. all the Benefices of
the World, Secular and Regular Dignities and Par-
fonages, Simple and with Cure, being vacant for Six
months, to begin from the firft day of his pofleflion,
with power to convert all the Profits thereof to his own
ufe.
The ways whereby an Eccleiiafticai Benefice may be oeprivatieiu
acquired, are not many ; but the Caufes for which an
Ecclefiaflical perfon may thereof be Deprived, ire very
many ; generally they may all be reduced to thefe Three
Heads, (i) By the Difpofition of the Law: (2) By the
Sentence of the Judge : or (3) By a free and voluntary
Refignation, which though it be not properly a Depriva-
tion, yet it is an amiffion of the Benefice. Deprivation
by the difpofition of the Law, is either by reafon of fome
Crime, w hereunto the penalty of Deprivation ipfo fatlo
is by the Law annexed, or by reafon of accepting another
Benefice Incompatible. The Pontifical Law adds Two
more, which do not concern us, viz. Ingrefs into Reli-
gionj and Matrimony. The Crimes that incurr Depriva-
tion are many, but they muft be proved, for the Bene-
ficed party is not bound fponte fna to quit his Benefice
ante Sententiam Judicis. Le(f. de Bene fie. cap. 29. Duh. 80
And when a man is not Jure Privatm, but onely Privan-
dus, in that cafe his Benefice cannot be beftowed on ano-
ther, unlefs a Privative Sentence be firft pronounced by
the Judge. If a perfon Beneficed be long abfent and Non-
refident from his Benefice, the Benefice is not by reafon
of fuch long Abfence void ipfo Jure ; but the Law in
that cafe alfo requires a Judicial Sentence of Deprivati-
on^ and that onely pofl trina Citationis i« eorum Eccleftis
public € E did urn. 6h(f.in c. Quoniam, ut lite nonconte(lata.
G One
^ The Introdu^ion.
KeMence One of -the chicfcft Reafons in Law why Pluralities
* are prohibited, is for the prevention of Mon-refideme,
as appears by the Third Canon of the Lateran Council ^
which Canon, after it prohibits the having of divers
Ecclefiaftical Dignities or more Parochial Churches than
one it makes provifion againft Non Refidence in thefe
words, viz. Cum igttur vet Ecclefia, vel Ecckfiaftkum
Miniflertum committi dehuertt, talis^ ad hoc perfom
quaratur, qu(Z Refidere in loco-, ^ cur am ejus per feip-
fum valeat exercere. Quod fi aliter Altum fuent, CS^
qui receperit , iiuod contra Sacros Canones accepent
amittat ; ^ qui dederit, largienJt poteflate privetur.
Likewife by the Thirteenth Canon of that great Coun-
cil of One hundred and Eighty Biihops, Adembled at
Rome by Pope Alexander the Third in the year of our
Lord 1 1 80. it was Ordained, That >c/; perfons jhould
he preferrd to Ecclefiaftical Dignities, as fhall he aSiually
rejtdent with their people, and undertake the Cure of
their Souls, hy doing the work of their Minijlry in their
own perfcns, ctherwife to deprive them of the Office
and Benefice conferred on them ; and they who do confer them
without thefe Conditions, let them lofe the right of confer-
ring Offices and Benefices. By this appears ho\V ftria: and
exad the Law is againft Non-Refidence in the Romifh
Church.
AUau and One of the mod Famous Abbats and Monailenes in
Ab*iel Britain anciently, feems to be that of Bangor in Flint-
fhire , whereof Kanulphus Cejirenfis fays, thzv^Tradunt
nonHuIli Pebgium fuiffe Ahbatem apud famofum illud
Monaflerium de Bangor ( a ). This Monaftery which
Po!y^h?r^* Kanulphus fpeaks of, is by our Beda called Bamorna-
I4.C.31. hyrig lingua Anglorv.m, in quo (fays he) t ant us fertur
fuiffe numerus Mnnachorum, tit cum in Septem portio-
nes effet cum Pr^pofuis fihi Retlorihts Monaflerium di-
vifum, nulla harum portio minus quam Trecentos ho-
(b)B^dEcc] ^^^^^ haherety qui cranes de labor e manuum fuarum
m.lic^'.vivere folehant (h). But concerning ^^tej, having
nothing to do with them, nor they with us, it being
alfo well known what once they were in this Kingdom,
and
The Introdudion, ^y
and what now they are where the Pope doth exercife his
Jurifdi<n:ion, it may here fuffice onel>* to obferve, That
the word [Allates'] hath anciently had a wide and far
different fignification from what we now commonly un-
derftand thereby ; for in and among the Laws of King
y£theiftany we find the words [quatuor ^Mates'] to be
taken ( according to the Glojfographifl thereon ) for
quatuor hehdomadas : That Law directs how and in
what manner the Hundred Court fhali be held ,• the
words are, Hoc eft judicium qualiter HUNDREDUM^
teneri deheat : In primis ut conveniant femper ad qua-
tuor ABBATES, ^ faciat omnis homo Re^ium alii
(^ c ). which the Gloffary calls Locum plane mendofum, f^^^u-n &
and by the quatuor Ahhates will have quatmr hehdoma- Scrip. Antiq*
das to be underftood ; which is the more probable by ^°'* ^47-
what appears in one of the Laws of King Edward^ Fa-
ther of the faid JEthelftan, who began his Reign in
An. 901. being the Son of King Alured ^ the words of
which Law are, Volo ut omnis prapofitus haheat G E-
M O T U M jemper ad QU ATUOR EBDOMODAS,
^ efficiat ut omnis homo return haheat, & omne pla-
citum capiat terminum quando perveniat ad fin em {j^)'{^\\v\a j
By the word \Gemotum'\ in that place is meant Owi^^-^/wj 837.
PuhlicHS, Concilium^ but chiefly Placitum, as appears
by the loyth Law of King Kanute, made for the indem-
nity of fuch as iliould have recourfe to Tribunals, for
their fafe coming and going to and from Courts of Ju-
ftice, Et volo ut omnis homo pacem haheat eundo ad
gemotum, vel rediens de gemoto, id eft^ placito, ^ifi^^^g'^Zlt
fit fur prohatus. It is a word from the Saxan ^emeccan, '?'" genera'
convenire, unde Moftratium, to meet. But this digreliion i)o^^"fu,
the Reader mud put on the Ahhats fcore, in regard the Gioffario.
word \_Ahhates\ gave the occafion thereof; which may
be but a Venial ottence, in regard that that Ecclefiaftical
Dignity is with us laid afide, though their Pofleflions
had better Fortune ; yet when King H. 8. did diffolve
them, he did not onely augment the number of Colleges
ou{ of the Revenues thereof, but alfo ereded divers
new Bilhopricks, as at Weflminfter^ Oxford^ Peterho-
G X roughs
48
The Introdu5iwn.
rou(rh Briftol, Chefter, and Glocefter ; all remaining at
this day fave that at Weflminfter, which being reftored to
its prii\ine Inftitution by Queen Mary and Benedi-
aines placed therein, was after by Queen Ehzabeth
converted to a Collegiate Church. In this Chapter there
is mention alfo made of Chamtries, Cantana, or if ycu
pleafc, ^des Sacra : ideo Inftituta ^ Dotata Pra-
diis ut miffa ihidem Cantaretur pro anma Fundatoris
^ propinquorum ejus. Ita Spelm. Of thefe and Free
Chapels about 1374. were diflolved by King //. 8. to
whom they were given by Parliament in the T,^tb. year
of his Reign : The Religious Houfes under 200 /. per
An. were granted to him in ^«. 1 53 5- All greater Mo-
naileries in An. 1 538. The Chantery and Free Chapels
InAn. 1545. Of thefe Chanteries Forty feven belong-
ed unto St. FWj, London. ^
And as for Annates or Firji Fruits, it is Hiltoricfllly
Fkft-Fruus. reported to US, that they were firft introduced mto£»^-
land in the time of King Edward the Firft by Pope
Clement, who fucceeded BenedUi. For this Pope Cle-
ment after the death of Pope Beneditl, was no fooner
Elcded and Enthron'd in France, but he began to exer-
cife his new Rapines here in England, by a compliance
with the faid King Edward, in granting him a Two
years Difme from his Clergy for his own ufe, though
pretended for the aid of the Holy Land, that with the
more eafe himfelf might exad the Firft-Fruits of vacant
Ecclefiaftical Benefices to augment his own Revenues,
though not within his own Territories. This is faid to
be the ftrft Prehdent of any Popes referving or exafting
Annates Qt Ftrfi-Frmts oi all Ecclefiaftical Dignities
and Benefices throughout England, extant in our Hifto-
ries : which, though referved but for Two years by the
Pope at firft, yet afterwards grew into a Cuftome by de-
grees, both in England and elfewhere . And thus they
remained in the Pope untill an Ad of Parliament entitu-
led the Crown thereunto in the time of King Henry the
Eighth, which afterwards were reftored again to the
Pope by Queen Mary -, but in the firft year of Queea
. "^ ^ Elizahetb
The Introdu^lion. a a
Elizabeth an A{k pafs'd for reftoring the Tenths and
Firfl- Fruits to the Crown, Notvvithftanding what fome
Hiftorians have (as aforefaid) reported touching the firfl
introduction of Firft- Fruits into England by Pope Cle-
ment in the time of King Edward the Firfl, it is moft
evident that they were to be yielded and paid here in
England fome hundred of years before that time, as ap-
pears by the Laws of Ina King of t\i^Weft'S axons ^ who
began his Reign in the year 712. The Law was this,
viz. Trimitias feminurrh quifque ex eo dato domic ilio^ in
quo ipjo Matali die Domini commoratur. Lambert, de
Leg, Jnae Reg. And by the Laws of King Edgar .^ who
began his Reign in the year 95-9. it is Ordained in thefe
words, Ex cmni quidem ingeniorum terra.^ ipfa Semi-
nam Primitia ^rimaria penduntor Ecclefice. Idem de
Leg. Edgari Reg. Ipfas autem Seminum Trimitias fub
Fejium Divi Martini reddito. Ibid. The like you have
in the Laws of King Kanute^ who began his Reign in
the year 1016. Seminum Primitite ad Fejium Divi
Martini penduntor : Jt quis dare diftulerit^ em Epifcopo
undecies praftato, ac Regi DuceKOSy ^ viginti Solidos
perfohito. Idem Lamb. It is fuppofed, that Boniface
Archbifliop of Canterbury in the Reign of Ed. 3. was
the firft that made way for Popes to Appropriate Jn-
nates and Firft-Fruits in this Kingdom to themfelves;
for the faid Archbiiliop An. 1146. upon a feigned pre -
tence^ that his Church of Canterbury was involved in
very great Debts by his Predeceilbur, but in truth by
himfelf, to carry on Foreign Wars, and gratifie the Pope,
procured from Pope Innocent a grant ot the Firil years hmn.Hiji.of
Fruits of all Benefices, that (liould fall void within his ''^^ ^*«^'^^-' "/
Diocefe for the fpace of Seven years, till he lliould p.'g'o^""'''
thence raife the Sum of Ten thoufand Marks yearly out
of the Bilhoprick. So that this Grant of Firft-Fruits of
Benefices to Boniface the faid Archbifliop, made way for
Popes Appropriating Firft-Fruits and Annates to them-
felves foon alter. But in proccli; of time the Parliament
having (as aforefaid) fettled tliem on King H. 8. there
fvas an Office thereof eftablilhed in London^ An. 1538.
whereby
50 The hitroduElio7i.
whereby the King's Revenue increafed exceedingly from
this Office for the receipt of Tenths and Firft-Fruits,
which was then firll erefted in London ; fuch Monies
being formerly paid to the Pope, for that the Tenths
and Firfl-Fruits of the Enilifh Clergy were yearly re-
turned to Rome. But now the Pope being dead in Eng-
land, the King was found his Heir at common Law, as
to moftof the Power and Profit he had ufurped, and the
Rents which the Clergy paid were now changed, toge-
ther with their Landlord ; for CommilTioners (whereof
the Bilhop of the Diocefe was ever one) were appointed
to eftimate their Annual Revenues, that fo their Tenths
and Firft-Fruits might be proportioned accordingly. At
^nobitw-w this Time the Oblations from the Living, and oiits from
rtf4os.fn5r. the Dead, were as duly paid as Predial Tithes, and
don *}e°"i VTLMch advanced the Income : but Queen Mary did after
waitham by Ad: of Parliament exonerate the Clergy from all
'^^^itle'^^ thefe Firft-Fruits, and ordered the payment of the
Vivedbythc Tenths to Cardinal Poole, for difcharge of Penfions al-
chuYchwar- lowed to Certain Monks and Nunsj but Queen Elizabeth
^^^^' in the firft year of her Reign refumed thefe Firft-Fruits and
Tenths, onely Parfonages not exceeding ten Marks, and
Vicarages ten Pounds, were freed from Firft-Fruits. uid,
Stat. I Eliz. cap. 4.
Altarage. That .which in the method of the enfuing Treatife
next oficrs it felf to confideration, is Altarage ; Altara-
gtum, taking its denomination from the Altar, becaule
(to (peak properly) Altaragium efl Emolumentum Sa-
cerdoti proveniem rattone Altarii, ex Ohlationilm fc.
Did. Jo. de Athon. in Gonflit. Legatim. Otho. c. Audit u
ver. Froventus. Touching this Altarage, there is an
Ancient Record in the time of King H. 3. about the
year 1234. in the Chronicle of William Thome the An-
guftine Monk of Canterbury, whereof (among other
things) there is mention made in a certain Compofition
between Edmond Archbifliop of Canterbury and the
Abbat of St. Auftins in Canterbury, as to whom it may
be paid, and to what value it may extend : The Com-
pofition runs thus , viz. Noverint univer/i pnefens Scri-
ptum
The hitroduSiio?!, r i
ptum infpetluri vel auditur't^ Quod cum inter Dom'tmm
Edmundum Dei gratia Cantuarienfem Archiepifcopum
totius Anglir2 Primatem, Magiftrum S. de Langeton,
Archidiaconum Cantuarienfem ^ x una parte , ^ dcmi-
fium Robertum Alhatem ^ Conventum S. Auguilini Can-
tuarise ex altera, Controverfia diutius mota fuijfet fuper ■
Ecclefia de Chiftlet ^ Jurifdi^ione^ &c. Item pro hono
pacii concedunt Albas (§ Convent us ^ quod Archiadiaco-
nus quando Vifitationu exercet Officium, in Ecclefiis
eorum fie ut in aliis Ecclefijs Diocefis Cantuarienfis re-
cipiat Procurationem confuetam, except is, &c. In Ca-
pe His vere de Mend re fcil. Santl, P. ^ Johannis, ^
Laurentii prafentahunt Domino Archiepifcopo idoneos
Cape llanos perpetuos ad Altaragta , it a tar/ien quod fin-
gula Altaragia 'valeant decern Marcos^ qui hdc portione
tantum erunt contenti fuh poena amiffionu di^<e portio- ^^^* ^'^sJ-
nisy fi coram Judice quocunque ex cert a fiientia plus col. 1 862.*^'
aliquando petierint, prcefertim cum Vicarius Matricis 188?.
Ecclefia de Menftre, ^<r. Whereby it is very evident,
That thefe Altarages iflued out of the Offerings to the
Altar, and were anciently payable to the Priefthood, as
well as Tithes and other Oblations. It is mofl probable^
that the'greateft Annual Revenue by Altars if not by
Altarages, in any one Church within this Realm, was
in that of St. Pauls, London ; for it feems when Chan-
ceries were granted to King Henry the Eighth, whereof
there were 47 belonging to St. Pauls, as aforefaid, there
were in the fame Church at that time no lefs than Four-
teen feveral Altars : And although they were but Chan- puUxh. Wifk.
tery-Priefts that Oiiiciatedat them, and had their Annual lib. d. p. 351.'
Salaries on that account, diftindt from Altarages in the
fenfe of Oblations aforefaid, yet in regard thele Annual
Profits accrued by their Service at the Altar, they may
not improperly be termed Penfion- Altar ages, though not
Oblation' Altarages.
Concerning Ji//;f J, whether they are eo nomine due -^^^^^^^
and payable now under the Gofpel, is not to our purpofe
either to queftion or determine : it will be agreed on all
liands, that the Law requires the payment thereof^ and
hath
52 The Introdu^ion,
hath dated it within the cognizance of the Ecclefiaftical
Jurifdid:ion. Hiftorians of good credit and great Anti-
quity tell us, That /¥thelwolfe King of the Wefi-Sa:^ons
gave the Tenth part of his Kingdom unto God, what-
ever his defign was by it, whether for the Redemption
of his and his Anceftours Souls, or otherwile, yet it is
now above §00 years fince he Decimated totius Regni
fui Imperium ', An. 855. ^thelwolphus Rex Dec imam
totius Regni fui partem ah omni Regali fervitio & tri-
luto liheravit, C^ in fempiterno graphic in Cruce Chrtfliy
&c. uni & trino Deo immolavit, Simeon. Dunelm.
Hifl. de Gefl. Reg, Angl. Likewile JEthelflan^ who
Reigned about 70 years after JEthelmolfe^ in the firft of
ail his Laws made fpecial provifion tor the pundual
payment of Tithes, Ego Adelflanus Rex, &c. Mando
Pra^pojitis tneis omnibus in regno meo^ &C. ut in primis
redd ant de meo propria Decimas Deo^ tarn in vivente
captali quam mortujs frugihus t err (By ^ Epifcopi met
fimiliter faciant de fuo proprio, & Aldermanni met ^
Prapofiti mei. Et volo ut Epijcopi & Prapo/iti hoc
judicent omnibus , qui eii par ere debent^ &c. Recolen-
dum quoque nobis eji^ quam terrihiliter in Lihris pofi-
turn f//, Si Decimam dare nolumus, ut auferantur a no-
bis Novem partes, & folummodo Decima relinquatur.
This ^theljlan dying without ifllie, was fucceeded in
the Kingdom by his brother Edmund^ in the Second of
whofe Laws we find it thus Enadted, in a great Synod
con vend at London, where Odo and Woljian Archbi-
fliops were prefent, Decimas Prcecipimus omni Chri-
fliano fuper Chrifli'anitatem fuam dare^ &c. Si quis hoc
dare noluerit, Excommunicatus fit. And in the Firft of
King Edgars Laws you have thefe words, Reddatur
omnis Decimatio ad Matrem J^cclefiam cui Parochia
adjacet. Alfo in the Fourth of King Etheldred^s Laws
it is commanded in thefe words, Pracipimus ut omnis
homo, &c. det retlam Decimam fuam, ficut in diebus
Antecejforum noftrorum fecit, . quando melius fecit, hoc
efi, ficut aratrum peragrabit decimam acram. Et omnis
Confuetudo reddatur ad Matrem noftram Ecclefmm cui
adjacet.
The hitrodidiion, 52
adjacet, Et nemo auferat Deo , quo^J ad Deum ptrtjnet,
C^ Pradecejfores mftri cortcejfenmt. And in tfie Nintli
ot King Alured's Laws , Si quis Dechnam contra teneat,
reddat L A S H L I T E c^^ D A C I S , W I T A M ^^^^ P'"f^,
cum A N G L I S. And in the Laws of the Conquerour it I'm, h. 5.'
is particularly Ordained, That de otmi anmna i^riw^ ^"'" quin-
garha Deo debit a eft ^ €^ ideo reddenda. Si gt-egem{nm:Wita'u
Equarum hahuerit \ pullum reddat decim'um; qui ^;;/7»; ^- ^ulfta 50.
tamen vel duos habuerit , de fingulis puliis Singulos de- SccLndum '
narios. Similiter , qui Vaccas plures habuerit , deci- cJlofiir. Hifi.
mum uitulum : qui unam vel duos ^ ^^ -^^^^'^^^^^ fi%^^f^ tafclvt^'
Oholos fingulos. Et qui Cafeum fecerit , det Deo deu^ "'
mum ; ft vero non fecerit , Lac decima die. Similiter
decimum Agnum^ decimum Vellm , decimum Cafeum. , de-
cimum Butyrum , decimum Porcellum. Item , de Api-
bus vero Similiter Commodi. Quinetiam de lofco , ^
prato , ^ aquis , de molendinis , parcis^ , vivariis , pij-
cariiSy virgultis, ^ hortis^ d^' Negotiationibus^ "^ de oryi-
nilus rebus qua-s dederit Deus , decima pars ei red
denda eft , qui Novem partes fimul cum Deceni largitur.
Qui eam detinuerint , per Juftitiam Epijcopi^. d^ ^^gis^
fi necejfe fuerit , ad redditionem \ arguantur. It , is, oft
good grdlind that the Camnifts do hold , That Tithes
Originally and ex Jua natura are of Ecclefiaflical cogni-
zance, befide the Statute of primo R. z. That perjuit
for Tithes ought ^ and of ancient time did pertain to the
Spiritual Court , notwithftanding what others ail^rt.
That in their own nature they are a Civil thing , and
that ( as Brati, lib. 5. foL 401. ) they were annexed to
the Spiritualty.
In the Chapter of Tithes in this enfuing Abridgment
you find the Order of Ciftercians^ fo called from after-
cium in Burgundy , being but refined Beneditlines , ex-
empted from paying of Tithes : fo alfo were the Orders
of Templers ^^nd' Hofpitallers , otkerwife called of
St. Johns of Jerufalem j for anciently the Lands of Ab-
i^i(?jdidpay Tithes to the Parilli-Prieft as well as the
t^ads of TLay-hfieh, but in the year 1 100 they obtained
f befides the Appropriations thev then had), of Pope
H ' Vafchal
54 ^/-^^ Introdu^ion.
Tajchal the Second at the Council of Mentz, that their
Lands for the future fliould be difcharged thereof. But
this Exemption was after limited and retrained by Pope
♦P.Adrian 4. * AdrianiXit Fourth about the year n^o. (excepting.
mmaf^^and ^^c Tithcs of new improvements in their own occupa-
hadbeenaBe- tion by Culturc, Pafturc and Garden Fruits) f onely the
mnfTst, ^^^^ Three Orders were exempted from the general
Albans. ' payment of all Tithes whatever. The Templers and
^^(j'd'^d** ^^fp^f^^^^'^ wtrt mere Laymen, yet they were ex-
c. 2. Statute, empted as well as the other : Yet the Later an Council
&//ino£.8.To. in ^;;, 121^. Ordered, That this Privilege Ihould not
^ixiXlhn. ' extend to Covents ereded fince that Lateran Council,
nor to Lands fmce beftowed on the faid Orders , though
their Covents were eredted before that Council. Inlo-
much that when the faid Cifterciam , contrary to the
Canons of that Council, purchafed Bulls from the Pope
to difcharge their Lands from Tithes : King H. 4 .NuH'd
iiich Bulls by the,S/<^^. of 2 // 4. cap. 4. and reduced
their Lands to a Statu quo. Thefe Exemptions from
payment of Tithes in this or that particular Religious
Order, was not known in the World, when j^thelvoolph
Son of Egbert , whom he fucceeded as King of the
IVefi-SaxcnSj gave (as aforefaid) Tithes of aK* his King-
dom^ and that freed of all Tributes, Taxes, and Impo-
"^Vid.inguiph. fitions as appears by his * Charter to that purpofe ,• ha-
Geft^fTegj. vingata Solemn Council held at iVinchefter , fubjeaed
5. cap. 2. ' the whole Kingdom of England to the payment of
Tithes. True it is , that long before his time many
Ad"s for Tithes may be produced, fuch as the Imperial
Edidfs , Canons of fome Councils and Popes ^ befide
fuch Laws as were m.ade by King Ina and Offa ; yet the
faid Edidls and Canons were never received in their full
power imo England by the. confent of Prince and Peo-
ple , nor were King Ina and Offa ( though Monarchs of
England, as it werf , in their turns ) fuch Kings as
conveyed their Crowns to the Ifliie of their Bodies, but
the faid JEthelmelph ^K'2^s Monarcha Nat us , n^ff faclus;^-
and although before his time there were Monarchs of
the Saxon Heptarchj y yet ngt fucctiliyc and fixed in
a Fa-
The IntroduSlion. 5«;
a Family ; but the faid King Eghert, being the ftrft that
fo obtained this Monarchy, as to leave it by defcent unto
his Son, the (aid ^thelwolph, he thereby had the more in-
difputable power to obhge all the Kingdom unto anobfcr-
vance of the faid A(3:.
In the faid Chapter of Tithes there is alfo mention
made of Mortuaries, as having ibme relation to Tithes,
wherein is iliewed what it is, when, by and to whom,
and wherefore to be paid. By the Stat, of 21 //. 8. they
are reduced to another regulation, than what was in
the time of King Henry the Sixth, A Mortuary was
then the Second beft Bead: whereof the party died pol-
fefled ,* but in cafe he had but two in all , then none
due. It was called a Corfe-Prefent, becaufe ever paid
by the Executours, though not always bequeathed by the
dying party. All perfons poflefled of an Eftate, ( Chil-
dren under Tuition, and Femes Covert, but not VVidows,
excepted ) were liable to the payment thereof to the
Friefi of that Pariih, where the dying party received
the Sacrament (not where he repaired to Prayers;) but
in cafe his Houfe at his death flood in two Parilhes, it
was then divided betwixt them both : And it was given
in lieu of Perfonal Tithes, which the party in his life
time had through ignorance or negligence not fully paid
• Lindw. Conf. de Confuetud. Such of the ancient
Lawyers as were unacquainted with this word Mortua-
rinm in the aforefaid fenfe as we now ufe it, took Mortu-
arium onely pro derelillo in r»orte, and fay of it, That it is
Vocahulum novum ^ harharum : but we underfland it
better, where of Cuflome it is due and payable. Thefi
Mortuaries , where hy the Cujhme they are to he paid^
were ever in confideration of the omijfion of Perjonal
Tithes in the parties Life-time, which Perfonal Tithes
were hy the Canon Law to he paid onely of fuch as did
receive the Sacraments, and onely to that Church where
they did receive them, as may he inferrd plainly from
cap. Ad Apodolicas de Decimis. But ohferve, fays Lef-
fint^ that in many places thefe Perfonal Tithes have
leen quite taken away y and in fome places they are paid
H 2 onely
5^
The Introduction,
only at the end of a mans Life , m among the Venetians,
( ivtnch manner of payment feems to have a great refem-
hlance to thefe Mortuaries ; ) and in fame places they are
.paid only at the end of the year. And in like manner
many Vredial and Mixt Tithes in divers places are alfo
aholijh'd', which ( fays he ) is for the mofi part done by
the permifton of the Church, where men have been ohfer-
ved to pay them with regret and much againfl their minds,
nor hath the Church in fuch cafes thought ft to compe/l
them to it, on purpofe to avoid fcandal , Lefllus de Jujl.
& jur. lib, 2. cap. 39. Dub. 5. nu. xj. And in fuch places
where the Cudome is to pay a Perfonal Tithe , when
any perfons iliall Hunt, Fiih, or Fowl to make gam or
Merchandize thereby , and it be negleded to be paid,
., r je whether Reflitution or Connpenfation by way of a Mor-
„,a.acq.dom. tuary ( where Mortuaries are Cuftomable ) be m that
lib. 2. c. 5- cafe due by Law, is a Queftion, which by Covarruvies
^t' ^* "'' may be well held in the Affirmative.
Bams. ' Although the face of the Church as well as Stati be-
gan to look with a purer (though lefs Sanguine ) com-
plexion , when Queen Elizabeth adorn'd the Crown,
than when her Sifter wore it, yet even in Queen Eliza-
beth's\\m^ there crept fuch abufes into the Church, that
Archbilliop Tarker found it neceflary to have recourfe
unto the Power given him by the Queens Commiffion,
and by a Claufe of the Ad: of Parliament, For the uni-
formity of Common Prayer and Service in the Church,
'^c. whereupon by the Queens confent , and the advice
:of fome of the Bi (hops, he fets forth a certain Book of
Orders to be diligently obferved and executed by all per-
fons whom it might concern ; wherein it was Provided,
That no Parfon, Vicar, or Curate of any Church Exempt,
fhould from thenceforth attempt to conjoyn. by Jolemni^
zation of Matrimony , any , not being of his or their
. PariJh'Church , without good Tefiimony of the Banns
bting asVd in .the fever al Churches where they dwe/l ,
or otherwife were fujficiently Licenfed. Heyi. Hifl. of
(L Eliz. An. Reg. 3. Banns or Banna , that word jff;7»-
««w is fome times taken />ro Mandato , fcil. Editfo ; it
The Introdu5lion, 57
is a word of divers fignifications , as appears almoft by
ail tlie Glo/iGgraphirts and Feudifts ; it founds Ibmefces
like Edicium , fometimes like Mandatum or Decretum\^
and fometimes (as here) like Prodamat/a , Saxonihus
gebann , whence there \^ their ^ebannian pro TrocLi-^
marCy edkere, mandare , ut ^ noftratium Bannes , pro
Nuptiarpim foedere Tuhlkato, This Publication^ oi
Banns was cautiouHy ordaio'd for the prevention of
Clandeftine Marriages, which were prohibited in this
Kingdom above 500 years fmce, as a thing contrary in-
all Ages to the practice of all Nations and Churches-
where the Gofpel was received ,• and therefore at a
Council conven'd at Weftminfter m the year ii/f. by
Richard Archbiihop of Canterbury under the Reign of
King. H. z. it was Ordain'd, That no perfon whatfoever
ihould folemnize Marriage in any clandefline manner,
and in cafe any Parfon ihould have a hand therein, he
was to be fufpended ah Officio for the fpace of Three
years : NhIIus Fide lis cujufcunque Conditionis fit , occult e
Nuptiaj faciat , fed a S ace r dote puhlice nub at in Domi-
no. Si qujs ergo Sacerdos aliquos occulte con}unxiJfe
inventus fuer it y triennio ah Officio fufpendatur. Can. 17.
di^. Concil. It is Recorded by good Hiftorians , that
Anciently in Ireland they were fo far from Publiihing
thefe Banns before Marriage, that they rejedled all Ma-
trimonial Laws whatever, infomuch that Polygamy was
very common amongft them until the Reign of King
H. 1. who fent Nicholaus his Chaplain , and Radulphus
Archdeacon of Lan daff imo Ireland ^ where at Cajfe/l
they held a great Council under Pope Alexander ;■ in
which Council Three things weve fpecially Ordain'd,
the one concerning ^^/'/i/w , to be /« the Name of the
father, Sen, &c. for till then their Cudome was to Dip
the Child, as foon as it was born, three times in Water,
but if it were a Rich man s Child , then in Milk : Ano-
ther concerning Tithes to be duly paid to Ecclefiaftical
Perfons, for till then many of them fcarce knew whe^
ither Tithes ought to be paid or not : And the Third was
concerning Marriage , that it ihould be folemnfzed jure
Ecclefiajlicc^ .
8 The IntroduSiion.
Ecclefiajlko , pkrique en'm (fay the Hiftorians) illorum^
quotmxores volebant tot hahehant. There was alfo a Fourth
thing Decreed in that' Council, and that was concer-
ning TefiamentSy and diftributions of the Goods and Chat-
tel ot' per(ons deceafed. Chron, Jo. Bromt. de Temp*
H.z.
AMten. Within the cognizance of the Epifcopal or Ecclefiafti-
cal JurifdiCtion are alfo all matters relating to the fin of
Adultery; the Bilhops Jurifdidion herein is very An-
cient, as appears by the Laws of King Kanute, made
above 650 years fince, in Leg. 80. St quis Sponfam ^
Comuhinam fimul hahuerit , non faciat el Presbyter
aliquid retlitudinum^ qua Chriji'iano fieri dehent, ^fitif-
quatu poentteat^ ^ ita emendet ficut Epifcopus injunget.
Such Adultery is a kind of double Fornication , accord-
ing to the definition in the j^th of the fame Laws, Adul-
terium eft , ft Sportfus cum vacua fornicetur , ^ multo
pejus fi cum fponfa alterius. It was a flrange and mod
cruel punifliment that Fhilip Earl of Flanders , in the
time of King H. 2. caufed to be executed on Walter de
Fontilus^ taken ( as reported ) in Adultery with the
Countefs Ifalella : who commanded that he ihould be
beaten to death with blows or flrokes of Keys tyed up
in bundles ; and being dead, his Body to be hung by the
Feet on a Fork with the Head downwards, in a place
prepared for that purpofe, there to remain ignominioufly
expofed to the view of all Spedatours. Hadulph de Di-
/« Spain 7> « ^^^^' I^^g ^Fift. The puniihmeut of an Aduiterefs ac-
lawfuufor a cordipg to the forefaid Laws of King Kanute was much
wlfil^bi!''* ^^^^ favourable ; for b>' the ySth of thofe Laws flie was
Daughter, to lofc but her Nofc and her Ears, Si Mulier^ vivente
T^AdVl'" ^^^ito fuo, faciat Adulterium^ ^ manifeftetur, &C. ipfa
Dr. Taylor, perdat Nafum ^ Aures. But the Emperour Aurelian is
faid to have punifhed it in one of his Souldiers, for com-
mitting it with his F^oftefs, in a way of Cruelty little
inferiour to that pradifed by the faid Earl of Flanders ;
for he commanded the heads of two Trees growing
nigh together to be bowed down, the Souldiers Legii
tp be fad tied, thereunto , then to be fuddenly let go ,•
whereby
The IntwduHion,
5P
whereby he was torn in two parts, the one hanging on
the one Tree, the other on the other, and fo to remain
as a terrifying Spectacle to his Army. Buc. Chron. ]^ot-
withftanding what was firfl: abovefaid in reference to
what Jurifdi^tion the cognizance liereof did anciently
belong in the days of King Kanute^ y\z. That the Offen-
der Jhould make fuch fatisfatlion as the Bifhops pwuld
enjoyn ; yet it is evident that after this , viz. in the
Conquer ours time , Fornication and Adultery'' were pu-
nilhabie in the King's Temporal Court, and the Leets
efpecialiy (by the name of Lechenvite,^ and the Fines
of Offenders aflefled to the King, though now it raeerly
belongs to the Church, a Prefident whereof we have in
the Church of Corinth y which by St. Paul's Command
proceeded againft the Incefiuous perfon ,• but as to a
Rape , there being force and violence in the cafe , the
Temporal Court and Common Law ( were there no
Statute in the cafe ) hath the beft: Right to the trial and
puniihment thereof. By the Conquerours Laws the pu-
nifliment of Adultery vJ2iSondiy pecuniary. Leg. i^. Qui
Defponfatam alter i vitiaverit , forisfaciat Weram fuam iVerah-cpre-
Domino fuo. Yet in fome cafes it was Capital, accord- f'"?» N^fivj-
ing to tfoe faid Conquerours Lz'ws, as in Leg. 37. Si Pa- *"'' °™'°^*
ter deprehenderit filiam in Adulterio in domo fua , feu
in domo generi fui^ bene licebit ei Oure (Jege for/an Oc-
cire, Occidere ) Adulterum. Lambert, de Prifcis AngL
Legihus.
Forafmuch as Bafiards and matters of Baftardy ^re Bajfardj,
within the cognizance of the Ecclefiaflical Jurifdidion,
fome notice is taken thereof in the next place of this
Abridgment. By Baftard we commonly underftand
prolem ex ilJicito cpncubitu procreatam. The mod Fa-
mous of this kind that we meet with in Hiflory, and
that concerns us, was William the Conquerom\ of whom
Simeon Monachus Dunelmenfis in his Fiiftory fays, That
An. 1035. 0^//^ Robertus P«x Normandorum, cui fuc
ceffit Wiilielmus Baftard fiHus ejus in puerili (State.
Of whom alfo Radulphus de Diceto in fuis Abbrevia-
iUnibus Chronicorum on the year 1036. fays, That
; Obiit
^Q The hitroduSiioTU
Ohiit ROBERTUS D»x NORMANNI^
TLtertrt RICHARDT, ah JEROSOLYMIS
reliens, apud NICE AM Ci^itatem, Cm Juccefit
WILLIELMUS BASTARD filtus ejus in pae-
rili at ate, qui A N G L I A Ujoftea coHquifivit ; pjter
\^ IhLlELMl Megis RUF[,^ H E N R 1 C I.
It is frequent in Hiftory to find m//iam the Conquerour
Sirnam'd the Baflard-, nor did himfeif in the leaft dif-
dain to rt>^e himfeif by that Addition ; for in his Epiftle
to Alanus Earl of Britannia Minor , we find him thus
flyling himfeif, Ego Willielmus cognomento Baflardus.
And no wonder (fays the Glofographer on the faid Hifto-
rians) when the Title or Name of Baftard in thofe days
was ufed by fome as a mark of Honour; the which he is
the rather induced to believe, for that {yccis derivationem
K'tlianam ample liens ) fcil. a heji-aerd , that is, optima
indoles five natura, there is no caufe of being aOiamed
thereof: Illegitimo enim (fays he) ^ furtivo concubitu
procreati , ammo plerumque funt alacri & elato , ingenio
fagaci, & judicio exatto : banc (inquam) vocis origi-
nationem potius probarem ^ cum in ceteris nulla Jit glo-
. riandi caufa. By the Canon Lawr a Bajlard is prohi-
bited from taking Orders, asalfofrom having an Eccle-
fiaftical Benefice, c. i.^ per tot. De filtis Presbyt. The
faid Prohibition is grounded by that Law on Deut.i^.
Non ingredietur Manzer , hoc eft , de S cor to Natiu^ in
Ecclefiam Domini ufque ad decimam generationem. Yet
the Pope doth ufually difpence with that Canon , fpe-
cially where fuch Illegitimates live commendably , and
follow not the vicious praftice of their Parents ,• In illis
qui paterna uitia nonfequuntur , pojfunt fuffragari vir-
tutes , quce inducent Summum Pontificem ad Dijpenfan-
dum i fi moi-um honeftas eos Ccmmendabiles reddat
c. Presbyter or um y6' Dijlin. And left fuch ihould
conceive themfelves cauflefly injured by that Prohibi-
tion, the Canonifts aiTign three Reafons ibr it; the one
is the Dignity of the Clergy and the Sacraments, which
oiight not to be committed to Infamous perfons : Ano-
thSMs in . cieteftation of their Parents Crime , whicii
-■'^S) com-
The IntroduSlion. •
o I
commonly extends alfo to their Children : The thirdly
the Parents Incontinency , and becaufe the Children do
for the mod part inherit their Parents Vices. cap Si
gens Angelorum, 56. Diflin. Yet a Modern Hiftorian
fpeaking of Pope Leo the Seventh, An. 93 j. fays C out
of Luttprandus ) that Bozon BiHiop of Tlacentia , Theo-
haU of Mi/lain^ and another great Prelate , were' all the
Baftardsof Hugo King of Italy by his three Q^ieens Be-
zola, Rofa , and Stephana , whom he termed Fenus
Juno, and Semele. vid. PrideauxV Compend. Introdu^ of
Hlfl.p. 106. Edit. s. ' ^
Next follows the matter of Divorce, which is then-
reparation of Married perfons by force of the Sentence "''''^'
of an Ecclefiaftical Judge qualified to pronounce the
fame. Adultery in either party is the common, though
not the only caufe of Divorce. Some there are (it
feems ) of great Reputation in the Cfiurch ( for this is
Quafiio tamTheologicE (luam Juris^ who pofitivcly con-
demn it as unlawful! for a Man or Woman to live with
their Husband or Wife refpedively if either of them be
notorioufly guilty of Adultery. Of which Opinion was
St. Hierony faying, That a man is Sul^ maleditlione fi IT^
Adulteram retineat. And St. Cbryfofiome , Fatuus <^ioMattr
iniquus , ciui retinet Meretricem ; Patronus enim Turpi' CauH 52*q!j
tttdinis eji , qui celat Crimen uxor is. So that it was ^' ^'*^"^'
none of Catos wifedom, nor any great piece of kindnefs
done his Friend Hortenfms, to lend him his Wife Martia,
whofe Chaftity deferv'd a better requital. Socrates al-
fo is reported to be as kind hearted in this matter , as
ever Cato was ; and they are both faid to lend their
Wives as freely as a man lends an Utenfil : As thefe
Wife men were beyond the reach of a Divorce, fo they
were more ferious than to bluih at Cornutifm, the com-
mon Fate of fuch Philofophers. St. Bafil was of Opi-
nion, That it was lawful! for a Woman- ftil! to cohabit
with an adulterous Husband ; to which purpofe he made
a Canon, and commanded it to be done in his Church,
as apgears in hi§ Epiflle to Amphilochius , i Can. 9. ^^i.\,
Thisllfo was the Sentence of St.^Auflin to Po//entius',
I and
^"3, ' The htrOfU'Mion.
"and in his Book ^^ Adult erinis Conjugiis, David received
his iVife Michael , who had lived with another man.
St. Bafil it feems , though he be of opinion that the
vid.Dr.7^>- Woman lliould dill live with the Adulterous Husband,
lor Cafes of ^^^ ^^^^ ^ot think it F;t, that the man ihouid be fo ob-
cfn^?!' liged as to his Adukerous Wife. The Council of Elihe-
ris refufed to give the Sacrament to a Clergy-man, that
did not inflantly expeli from his Houfe his Wife whom he
knew to comm'it Adultery : And by the Council of Neo-
Cafarea he was to be depofed from his Dignity in the
fame cafe. In the Council of Trent there was a Canon
. made , having an Anathema added to it , which con-
' ^ demned thofe that fay , That the Bond of Marriage is
tmuComildiJfolved hy Adultery , and that either of the parties
Hi^'^' i^^i' may contrail another Matrimony whilfi the other
liveth : And by the Fifth Anathematifm of that Coun-
cil, 22 Julyi^6y were condemned Divorces allowed
in Jujlinians Code : which Anathematifm was added
at the inftance of the Cardinal of Lorain , to oppofe
the Opinion of the Calvinifls. In the fame Council
Father Sm. upon the Article of Divorce , it was faid by one of the
Fathers there , that the Matrimonial Conjunction was
diftinguifli'd into three parts ; the Bond , the Cohahi-
tation, and the Carnal Copulation : inferring , that there
were as many Separations alfo : and that the Ecclefiafti-
cal Prelate had power to feparate the Married , or to
Concii.rrf«n give them a Divorce in refpedt of the Two latter , the
lib. 7. Matrimonial Bond dill (landingfure , fo that neither
j^^can marry again. Yet the Gofpel admits but of one
caufe of Divorce, viz. Fornication^ which Ihould feem
to be underflood de Vinculo , becaufe Divorce in the
other refpeds may have many Caufes*
Defamation, Of all Perfonal Adions within the Ecclefiaflical Cog-
nizance , that of Defamation feems to be of the ten-
dered concern , if that be oblerved which Solomon fays,
Erov.2i.i. That a Good Name is to he chofen before great Riches ;
where by Name , nothing can be underflood other than
a man's Credit, Fame, and Reputation intheWorld^- So
tiliat the Inference is clear , a Defamer. is the worft of
Thieve Sy
The IntrodiiUion.
Thieves ^ the Sacrilegious ones excepted; yet were- it
not for the fweetnefs of- Revenge , and the Jehqburage-
ment of the Law, fuch Adions might be better ipar'd
than what it cofts to maintain i hem ; and fuch ill-
fcented Suits do favour worfe being kept aiive in a Tri-
bunal , than they would by being buried in Oblivion,
fpecially if the D^/^wf ^ confidered , that to forget In-
juries is the beft ufe we can make of a bad Memory.
This Defamation is not properly that , which we call
Detra^io , for Detra^lio in its proper fignification is
aliens fam£><^i>cculta ^ injufia violation, but Defama-
tion, though it be an unjufl, yet it is not an occult vio-
lation of another man's Fame or Reputation ; they have
indeed both the fame end, but they do not both take the
fame way to that end : they both aim and defign the
extinguilhing or diminiihing the Credit and Repute
which one man hath in the mind and good opinion of
another ; but the one doth it more openly and publickly,
atleall not in fo clandeftine way as the other. This
Defamatio is of near aflinity to that which we call
Contumelia, which is an unlawfuU violation of a perfons
Honour and Reputation by undecent and Falfe Speeches,
Geftures ^ or Adions , on purpofe to difgrace him :
only in this alfo they differ , that Defamatio may be of
one man to another in the abfence of the Defamed t, but
Contumelia is not but to the party prefent , 'vel alfenti
tanquamprafentiy that is , in the prefence of fuch as
have a relative reprefentation of the perfon Contume-
lioufly fo reproached. Touching Actions of Defama-
tion there are two Queftions raifed , rather by the Ca-
fuifis than Canonijls ; the one , Whether the Heirs of the
Defamer be obliged to make reftitution of Damage
to the Defamed, in cafe the Defamer died before fatif-
fadion made ? the other , Whether fatisfadion for the
damage done by Defamation , be to be made to the
Heirs of the Defamed, in cafe he died before fuch da-
mages were recovered by him ? Although both thefe
Queftions are anfwered in the Negative by that known
Rule in Law, A^io perfonalis moritur cum perfona ;
I X the
^3
6a The Introduaion.
the Rcafon being, becaufe the Obligation arifing thence
is meerly Perfonal, ^ no» efi ad aliquid dandum , fed ad
ali^uid agendum ; yet Navar. Adrian, and others ,
who hold the contrary , will not be fo anfwered ,• for
though they agree the Rule of Law, yet they deny the
forefaid reafon of that Rule to hold in this cafe, for (^fay
they ) the obligation in this cafe is not purely and meerly
Perfonal, as is commonly fuppoled, but doth quodam-
modo afled the Eflate of the Defamer, whether alive or
dead : He gives an Inftance, A man fets his Neighbours
Houfe on jire^ and dies ', his Heirs fhall make good the
damage done by that fire : A mans good Name and
Reputation is far more pretious than his habitation : he
that con fumes that Good Name and Credit without caufey
jhall refund the damage out of his Eflate , and death it
[elf ( before fat is fa^ ion made ) fha/I not excufe hi-s
Heirs, yidi Navarr. c, i8. nu. 45. ^ Adrian quodlibet ii.
So likewife as to the other Queftion , Vtrum defunifp
fit Famareflituenda^. there are who hold it in the Affir-
mative, Quia Fama efi bonum , quod homo etiam pofl
mortem cenfetur poffidere. But when all is faid ( for
fpme will fuperabound in their own Judgments } the faid
Rule:. of Law muft {land void of all Exceptions, and
hold good and applicable to the Premiffes, ThaxA^io
Perfonalis moritur cum perfona.
■Mrikie. Among all thofe horrid Offences whereby the Church
is or can be violated , that of Sacrilege feems to look
with the blacked face ; which , though as a Felonious
ad:, may fall under a Temporal cognizance, yet the
Canon Law concludes it as a thing m its own nature
properly fubjedted to the determination of the Ecclefi-
An,^^4, aftical Jurifdidion. It is now nigh a Thoufand years
iince pyithred Kingof Kent convened a Synod , wherein
^/r/i^ujtf/^ Archbiihop and Primate of all Britain was
Prefident : In which Synod it was fo long fince declared
IxMS.Id in thefe words, i/zz. Horrendum efl hominibus Deum
Collcg;. c. c. ifii^um expoliare , tunicamque ejus ^ heereditatem fcin'
mthm,^^' ^^^^^ ^y t^^ Laws of Alured King of the Wefl- Saxons^
Leg, 7. the Sacrilegious gerfon was. to lofe that ha'nd;
. where=
The Introduction. 6ty
wherewith he did the Fad , .Si quis in Ecdefia furetur
aliqutd y amputetur manus de qua furatus eft, la the
time of Queen Elizabeth there was a Sacrilegious kind
of Church- Plunderers, who under pretence of aboHiliing
Superftition , demoUflied ancient Tombs, raz'd the Epi-
taphs and Coat- Armours of mod Noble Families , and
other Monuments of venerable Antiquity, took the Bells
out of Churches, and uncovered the Roofs of Churches
by plucking off the Lead,* but thefe Birds of Prey had
their Wings loon clip'd by the faid Queens Proclamati^
on, which was efledtually put in Execution for the re-
ftraint of fuch Sacrilegious Rapines : King Guthred^
who by St. Cuthherth Command was in Childhood ta-
ken out of a Servile eftate and made King of Northum-
herland dbout the year 890. made fuch an Edi£l againfl
the Sacrilegious perfons as thunder d them all into Hell,
Graviffimce maleditlionis Anathemate percufit , at cum
Juda Proditore Domini , damnationis fententia ferian-
tur, Simeo. Hift, de Dunelm. EccL Nor are Korab and
his Confederates the only perfons whom the Earth in-
terr'd alive for their Rebellion againfl the Sacerdotal
Fundion ,• for ( if you will credit Tradition ) the like
hath fihce happened in the cafe of Sacrilege to the
Scotch Army, wh-ich in the faid Guthred's time had no
fooner (according to their Modern Pradice) fleec'd the
Church of Lindisfarne nigh Tweedy to tunick their Zf?;/^-
/hanks, but the Earth greedily opened her mouth, and
devour'd thefe Devourers , at that very inftant when
they were all ready to engage in a Battel with the faid
King of Northumberland, di^. Sim. ibid. But not to
rake up Antiquity for difcovery of what Legends and
Romances lie under the Alhes thereof ; this is as well
True as Chronicled , That King William Rufus was
Cafufortuito, non voluntarie, darted to death inflead of a
Stag by a certain Franck, one Walter Tyrell, in the fame
place, which his Father the Conquerour had Sacrilegioufly
difecclefiated for more than 30 Miles , to Forefl it into-
Speluncas latronum^ & luftra ferarumi This was a
rjeal Sacrilege in a Vidorious Monarch, which added
little-
^^ The IntroduSlion.
little to the Credit of his Conc[uefis ; but that in Pope
Boniface xht Seventh ( i^ Hiftorians do not bely him /
was a Ferfonal Sacrilege , who when he under flood
that the Roman Citizens conipired againft him , took
with him all the Jewels of the Church of St. Peter and
UtA to Conflantinopk, where he converted the fame in-
to money for the proper ufe of his Sacrilegious Holi-
sm^, "^Another grofs offence, and little inferiour to the for-
mer within the cognizance of the Church, is Simony^
or that Art Magick whereby Parfons, fcarce worth the
name of Perfons, as the Devil did into our Natural Mo-
ther infenfibly , fo they Serpentine themfelves into our
Spiritual Mother , the Church vifihle, invifibly. Htlde-
brand, or by an alias Pope Gregory the Seventh , Con-
vened a Synod General againft Church- purchafers and
buyers of Ecclefiaftical Livings , and againft fuch Bi-
ihops as from the hands of Kings or Emperors receive
the inverture of their Birhopricks,/^r traditionem An-
mdi & Baculi ; he faid , That Quifquu Epifcopatum
mercatur , contra Spiritum Sanfium , qui donum Dei
dicitur, facit. He likewife made a Decree in the year
1074. That not only the Buyer and Seller of any Eccle-
fiaftical Office , but whoever alfo that is confenting
thereunto, Ihall be damned with Simon Magm. Simeon
Dunelm. HiftJeGeft, Reg, Angl. It is unavoidable, for
the Pope, who hath the Keys of Hell by his girdle, hath
fo Decreed it. But Pope Gelaftus was in this matter
better natur'd by far, for he lett fome place for Repen-
tance, and proceeded not an inch beyond a Reverfable
Anathema ; Si quu vendiderit , aut emerit vet per fe^
uel per alium , Epifcopatum , Ahhatiam , Deconatum ,
Archidiaconatum , Freshyteratum , ?r(Bpofuuram ,
Tr^hendam , Altaria , -vel qualihet Ecclefiaflica
Beneficia , Tromotiones , Ordinationes , Confecrationes ,
Dedicationes Ecclefiarum , Clericalern tonjuram , Sedes
in choro , aut qutzlihet Ecclefiaflica Officia , ^ ven-
dens & emtns Dignitatis & OfUcii fui ac Beneficit^
penculo fid'jaceat. Quod nift refipuerit , Anathematis
mucrone
The IntroduSlion.
67
mucrone perfojfiu , ah Ecclefia Dei quam lafn , modis
omnibus ahfcidatur. The like was Ordain'd by a Coun-
cil oF 300 Biihops Con vend at Rome , Pope Calixtus
the Second being Preiident , 'viz. Or dinar i quemtiuatn per
pecuniam in Ecclefia Dei , vel promoveri autloritate Se-
dis Apoflolic£ modis omnihus prehibemus. Si quis vera
in Ecclefia Ordinationem vel Fromotionem taliter ad-
quifierity acquifita careat prcrfus dignitate. ditL Simeo.
uhi fupra. The fame in termims you have Ordain'd
at a v>ynod Conven'd at Wejlminfter An. 1126. in the
Reign of King Henry the Firft, Honorius the Second be-
ing then Pope, viz. Santiorum Patrum vefiigHs inhe-
rent es, que n quam in Ecclefia per pecuniam ordinari au-
tloritate Apoflolica prohibemus. — ibid. And at anotlier
Council Conven'd ztWeflminfler in the year 1175. un-
der the Reign of King H. 2. it was Ordain'd, that all
Simoniacal Patrons fliould be deprived of their Right of
Prefentation forever,- NuHi liceat Ecclejiam nomine de-
talitii ad aliquem trans ferre , vel pro Trcefentatione
alien jus per [ones pecuniam vel aliquod emolumentum ,
paBo interveniente ^ recipere. Quod Ji quis fecerit y ^
in jure vel convitius vel Confeffus fuerit , ipfum tarn
Regia quam noflra freti att&oritate Patrocinio ejuf-
dem EcclefiiC in perpetuum privari Statuimus. Can. 8.
vid. Chron. Gervaj. de Temp. H. 2. It is Reported of the
Emperour Henry, Son of Conradus , tliat in his youth
he accepted of a Silver Pipe from a certain Clerk on
this Promife and Agreement, That when he iliould be
made Emperour he Ihould beftow a Biihoprick on the
fold Clerk, the which he after did accordingly when he
became Emperour j but not long after the Emperour
being furpnz^d with Sicknefs, and his Difeafe increafing
he lay fenflefs and fpeechlcfs for three days, and fj rapt
as it were out of the Body, that he lay as one dead, the
Billiops appointed a Three days Faft for the Emperours
Recovery, which having obtain d, he doth immediately
by a Decree of the Council degrade the Bifhop whom he
iiad Simoniacal/y fo made for a Silver Pipe ,• for it was
confefled by all that heard thereof-, That, he was among
the
^8 The IntroduSlion.
the Divils during the fpace of all thofe Three days
wherein he lay as dead, thofe Divils all that while dart-
ing fiery Flames through a Pipe into his mouth , where-
by his whole body became but as one Firebrand , in
comparifon whereof our Material Fire here on Earth
was but as congealed Ice to it, ^c. As you like this, fo
you may have more out of the fame Infallible Author,
"jiz. Jo. Bromton , in Chronice fuo. At a Council Af-
fembled at Mantua by the Empcrour Henry the Fourth
in the year 1066. by the Third Canon of that Council
it was Ordain'd , That whofoever was admitted to a
Church Office , willingly and wittingly hy a Simon iack
per [on , fhoidd he removed from his Order : And by the
Sixth Canon of the fame Council it was likewife Or-
dain'd , That «o Ecclejiaflical Office or Benefice Jhould
he fold for Money, hut freely given. Alfo by the Se-
venth Canon of the Council at Rome, confiltingof 180
Bifliops in the year 11 80. under Pope Alexander the
Thirds it was Ordained , That no Reward be taken for
admitting men to Spiritual Offices , and that no money
le taken for Bleffing them that are Married y or for
Adminijlration^ of any other Sacrament: For at this
time Marriage was counted a Sacrament of th^"^ Roman
Church. He that Simoniacally enters on an EccJefialli-
cal Living, aim'd at fomething worth money ; he can-
not be fuppofed to intend principally the Miniftry of
Souls, who comes to that Office inflru£ted only wMth a
bag of Money. In Ireland there is a Cuftome of re-
reiving Oblations at the Baptifm of Infants ,* but if the
Pried ihall refufe to Baptize the Infant till he be fecured
of his Money , he is a direcft Simoniack , for then he
fells the Sacrament at a price certain. It is Recorded
in Hiftory of Henricus Auceps , that when. he fought
agalnfl. the Hungarians, he made a Vow to God , That
if he would g;ve him Vidory , he would purge his
Countrey of Simony. Epiphanius.
The
The IntroduSlion, ^q
The precedent Evils of Sacrilege and Simony are no
farther punilhed than as they are reduced into adt and
pratlice ; but Here/ie, which in the method of the fub-
fequent Abridgement next follows , and as within the
Ecclefiaflical cognizance, is more fpeculative, having its
Seat more in the Head than in the Hand, and conle-
quently of the more pernicious quality, in regard of its
poyfonous venom in thefe more noble parts, the Head
and Heart : Nor is it onely the poyfon o\ the Soul, fatal
in whom it is ; but it is alfo the Plague and Leprofie of
the Soul, dangeroufly infectious to others in whom but
very lately it was not. This Herejte may be defin'd to
be a Puhlijh'd Opinion y repugnant to the Principles »f our
Chriflian Faith; ohflinately maintain d and perfifled in
ly fuch as profefi the Name of Chrifl ; and fo Hereticks
are diftinguifti'd from Atheifis and Infidels^ properly fo
called, albeit in a fenfe they have fomewhat of both the
other in them : He feems to give it an adequate defini-
tion , that made one for it by the true interpretation of
the Greek word , Harefis Gr£ce, EleStio Latine , efi
fententia humano fenfu Eletla , Scripturce Sacnc contra-
ria , palam do^ia , pertinaciter defenfa : And he fcems
to give the Heretic k an apt comparifon , who made one
for him by the Mole ^ which is a Bead blind, with a
black, but fmooth outfide, lurking in holes, working un-
der ground, and fpoiling the belt Land. In the black
Lift or Catalogue of Hereticks, which you meet with in
its proper Chapter of the enfuing Abridgement , you
will not find all thofe Herefies mentioned by Epiphani^
lis confr. Haref. lib. 2. being purpofely omitted for bre-
vitie's fake, becaufe they were like abortive Birth??, and
continued not long to difturb the Peace of the Church,
Herefies of old , as of late days , have ever crept into
the Church under a double pretence ,* the one, of zeal
to the glory of God ; the other , of a deteftation of
Sin J the Devil would ceafe to be the Old Serpent^ if
after fo many thoufand years experience he were now
to learn how to wheedle and deceive the Nations.
It Is obfervable, that whenever and wherefoever the
K Light
'JO The IntroduSiion.
Light of the Gofpel hath appeared in any more than
ordinary lufire and purity , there immediately the De-
vil hath exerted the utmoft of his power and policy to
obfcure that Light, by caufing Clouds of Error to ga-
ther in that Element where the Gofpel fo increafed in
purity and fplendour; and whenever he defifts from this
pradice, let him no more be fly led The Vrince of Dark- '
nefs ; whence if Simon Magus were (as fome fay ) the
Father of Hereticks^ you may guefs who their Grand-
father is ; for according to the infernal genealogy, the
Father of Lies mull needs be the Grandfather of He-
re fie s.
Biafphemy. In this enfuing Ahridgment therefore you have one
Chapter of Blafphemy and Herefie^ as being alfo within
the fphere of Ecclefiaftical Cognizance ; they are plac'd
together, in regard of that affinity they have each to
other; for many of them are Cojin-Germans ^ but one
degree of a Lie removed, or rather are Brethren in
Iniquity, for they have both the fame Father, Te are of
Toh. 8. 44. y^^^ Father the Devil , &c. he ahode not in the Truth
* ' ( fays our Saviour of the Jews that believed not ;) ma-
ny of whom Blafphemoufly fa id of him, That he had a
Joh. 10.20. Devil ^ and ivoj mad: Others of them weie foretold
of by St. Peter , That they privily fhould Iring in dam-
Pet & ^^^^^ Herefies , even denying the Lord that bought
3. id. them , «5fc. wrefiing the Scriptures unto their own dc'
fir u^ ten. BActo-p/uL&iv , Blafphemare', that is, convitiis
inceffere , to fpeak reproachfully and wickedly of God,
to aicribe to the Creature what belongs onely to God,
vel ah eo remover e quod i Hi convenit .^ fays St. Amhrofcj
or to preferr a Falfe god before the True God, Rev. 13.1.
This kind of Blafphemy referrs chiefly to God the Fa-
ii«r.; There is Blafphemy likewife which referrs to
God the Son; fuch was the Blafphemy of the Pharifees,
when they faid of Chrijl , That he was a man glutton-
m%thiui9>ouSi anJ aWine-hthher^ &c. This they might probably
fay out of their ignorance of his Perfon , and therefore
a much inferiour Blafphemy to that.againft the Holy
Ghdf}:^ which is ever againO: Cbnfcicncc , and .out' of,
Envj,
The IntroduSlion,
Envy and Malice. Bartolus is of opinion, That there is
a Blajphemy alfo which referrs to Men. Bart, in I. Item
apud^ §. ait ? rat or. ff, de Injur. But this is not that
Blafphemy here intended, although that Opinion feems
to be back'd with good Authority, i Cor. 4. 1 3 . (^ Tit^
3. 2. yet St. Auflin, who underftood this matter better
than Bartel, was of another opinion, EJi autem Blafphe-
mia {^fays hej cum aliqua mala dicuntur de honu. Itaque
jam vulgo Blafphemia non accipitur , nifi mala lerla de
D€0 dicer e. De hominihus namque duhitari potefl ^
Deus vero fine controverfia bonus eft. D. Auguft. in. lik
de Morih. Manichceor. cap. n. It is but a weak illuftra-
tion of the matter, to fay Qmd in homines eft Contw
melia^ hoc in Deum eft Blafphemia. It may formally
be defined to be an Injurious and Contumelious Speech
againft God : It is diametrically oppofed to Divine
Praife ; and both thefe may be as well Internal^ of the
Heart, as External, of the Mouth, for in Gods Omni-
fciency there is the language of the Heart, as well as of *
the Lip ; and there may be Blajphemy in the one, as
'Well as of the other. By the Levitkal Law the Blaf-
phemer was to be ftoned to death. By the Civil Law ^^^^^' ^^^
he was lilfewife to die for it. Authen. ut non Luxurien-
tur, in fin. But this penalty in thofe days by reafon of
a defeft of Religion and Juflice is not inflidfed, fays
Lucas de Tenna, in L. omnes. C. de Delatorih. & Jul,
Clarus. §. Blafphemia , ««. 3. yet Blafphemers of the
higheft rank are at this day put to death in fome places,
in others they are condemn'd to the Oars^ in fome places
they are Banifh'd , in others they have their Tongues
cut off, or an hole bored through with an hot Iron, ut
refert Clarus. By the Canon Law folemn Penance was
anciently enjoyn'd to Lay-Blafphemers. c. r. de Maled.
But this is not now in ufe. The Council of Laterun un-
der Pope Leo the Tenth , Commanded that fuch Blaf-
phemer s ihould not be abfolved in foro ConfcienticB
ahfque graviffma poenitentia. dtti. Ccncik Seff. 9. §. Ad
aholendum. There are fome who would have Herefie
to be a kind of Blafphemy ; doubtlefs there are fome ^^"^^'^^
K i Here-
72
The IntroduSlion.
Herefies that are very Blafphemous ; but Herefie in fui
mtura is quite another ^hing ; for as Blafphemy is de
Deo male dicendo , fo Herefie is de Fide Catholica male
eligendo ; for the word Harefis is derived a-zrc -mv al^io'
jmcti , BligOy whence they are underftood as Hereticks,
who departing from the true Catholick Faith of Chrift
aliam fed am Eligunt. Some there are, who would have
all Hereticks to be divided into the Major and the Minor ;
by the Major they will have to be underdood al! thofe
^ui nominatam hcerefin predicant, fuch of old were the
Manichaans , Arians , Eutychians , Samaritans ,
Ophites , Donatifts , Prijcillianifls , and the like : By
the Minor f thofe qui hcerefin innominatam defendunt.
Drofaus in Method, Jur. Thus the Philofophers of
old had their StGts alfo among them, & unujquifque fihi
aliquod genus difciplin^ ac Setla profrtum elegit ;
there were various Fa£lions among them, which by the
Greeks were termed Herefies^ but by the Latins, Selis.
Among the Ancients this word Herefie was not fenfed
in that odium as now with us, nor the word Se^a among
the Latins; St. Paul himfelf fpeaks of it in one place
as in a fenfe almofl indifferent, All. 26. 5. Notwithfland-
ing it is well known, that the Holy Scripturtf generally
underflands and fpeaks of it in pejfimam partem ; fo in
Tit. 3. 10. A man that is an Heretick ajter the fir ft and
fecond Admonition reje^ : And in i Cor. 11. 19. There
mufl he Herefies among you, that they which are ap-
proved^ may he made manifeft : And in Gal. 5. 2O. He-
refies are numbred among the works of the Flefi^ ; And
in 2 Pet. 2. I. chey are called Damnable Herefies. By
the Civil Law an Heretick can reither make a Tefta-
ment, nor receive any Benefit by a Te (lament. L.fin. C.
de Hareticis. And if you will believe Thomas Aquinas
Q as in this you very hk\y may ) all Hereticks by rob-
bing the Holy Scriptures ot the Truth to eftablifh their
pernicious Lies, are guilty of a kind of Sacrilege ; and
by Fathering fuch Lks on God , tacitly of Blafphemy,
Aquin, ar. i,
la
The IntrodiSion. j^
^ In the One and fortieth Chapter of the enfuing Trea cmndis.
tife you have a brief Catalogue of the Councils accord-
ing to our computation, here you have- them more fiic-
cindJy according to the Roman account : Sehafius a
Judge in Theffalonica, in the time of CGnftantim Har-^
mempulus fays, That fome of the Ecclefiaflkal Canons.
were of the Holy Apoflks, others of the Seven Oemrrie-
nical Councils , others of particular Synods , and ethers
of certain * Fathers of the Church ,• to fay nothing of ^£,"71"
the Tapal Decretals ordered to be compiled by Pope clunhtl'^
Gregory the ()th. The Firft Oecumenical Council was^''''?T'
Conven'd at Nice under Ccnjhntme the Great, 2gzm?i7opL%rve
Artus^ who held the Son of God to be a mere Creature- "'^''^^" Tay-
This Council confifled of 318 Bifliops, by whom ^W«; i^f^Ll^
was Anathematiz'd, and his Herefie condemned. The^^^
ieratim
Second was at Conflantinople under Theodofius the Great, &'j^i*f
againft the Pneumatomachijls, who denied the Divinity '^'^«''«i^»'^'^
of the Holy Ghofl : This Council confided of i co Bi- T' ""'t ^^
ihops^ by whom thefe Hereticks together with thm^iALtt
damnable herefie, was accurfed. The Third was at*"" ^''^"•' a-
Ephefus under Theodofius the Lefs, againft Neflorii4sniJ!i%T
and Caleflinus, who held that Chrift was onely Man-^^^^^Grad-
At this Council were 200 Bilhops, by whom thefe Here- fccmeuJ'
ticks were likewife cenfured as the former. The Fourth ^asasdifl
was at C hake don under Marcianus, againft Diojcorus and ZnTf^'^^
Eutyches, who held that the Two natures of the Word, ZdundZi.
VIZ. of God and Man, were after the Union reduced into ^'f^' ^'^^
one Nature ,• for wliich they were Anathematiz'd by cfegTy p.
630 Bilhops there Convened. The Fifth was at c^;/- Boniface 8.
fiantinople under Juftinianus the Firft, where 160 hi-^ohn^l'tt
ihops were prefent, who confirmed the Decrees of theM'^w^'"-
Fourth Synod, and condemned Or /^^» and all other T'"'"'^ f--^"
Hereticks. Tile Sixth was alfo at Conflantinople under Primes, b.
Conflantinus Barhatus^ where were Aflembled 170 Bi- P^'f^'^^'':^
ihops, who pronounced the Sentence of Anathema againft iVlilt'l
all thofe tjui unam in Chrijio uoluntatem, ^ unam agendi "« 4* f- ^47'^'
vim tradchant. The ^th was at Nice under Conflantim
and his Mother Irene, where 367 BiOiops were afterab'led
againft the Adverfaries of Images^ whom they fubjeded
74
The IntroduStion.
to their Anathema, (i) Of Particular Synods, one was
held m the Temple of the Apoflles in Conflantinople un-
der the Patriarch Thotius^ which was called the Firft
and Second : Another under Leo and Confiantine in the
mod Famous Temple SanUie Dei Sapientice, or San^a
Sophi£, which confirmed the Seventh Synod: Another
at AMyra, mere ancient than the firft Univerfal Synod :
Another at Cafarea^ more ancient than that at Ancyra :
Another at Gangra, after the Micene, againft Euftachi-
m who defpifed Marriage, and taught things not con-
fonant to Ecclefiaflical Tradition : Another at Antioch a
City in Syriay where in truth were two Synods, the one
under Aurel'tanus againft Vaulus Samofatenus , who
faid that Chriji was mere Man ; the other under Con^
ftantius Son to Conftantine the Great : Another at Lao-
dice a , fituate in Phrygia Tacatiana : Another at Sar-
dica, that when Conjiantius embraced the forefaid Se(3:,
his Brother Conftans , Emperour of Old Romey by his
Letters threatning him with a War, if he would not de-
fift from perverting the Church ; his Anlwer was, That
he fought no other Dotirine^ than what was moji agree-
.ahle to the Catholick Faith; whereupon by their and the
Biiliop of Rome\ appointment 341 Biiliops were Con-
vend in a Synod, which having eftabiiihed the power
and authority of the Nicene Synod, did conflitute divers
Canons for the Church : Another at Carthage under
Theodojius^ where 117 Biihops were aflembled, and with
them the Pope's Vicegerents ; this Carthage was part of
Char che don ^ and that a Province of Africa. (3) The
Canons of the Fathers are taken ( according to the Ro-
man computation ) out of the Epiftles partly of Dionyfius
Akxandrinus, partly of Petrus Alexandrinus^ partly of
the Wondei -working Gregorius : partly alfo out of the
Epiftles of Bazil or Bajilius the Great : partly out of the
Epiftle of Gregory or Gregorius Nyffems to the B. of Me-
lita : partly out of the Refponfes of Timotheus Alexan-
drinus : partly out of the Refponfes of the Conflantimpo-
litan Synod to certain Monks, Nicholaus the PatriarcL
being Prefident : partly out of the Epiftles of Cyril or
Cyrillus ;
The Introdul^ion. nc
Cyr'tllus : and partly out of the Epiftes of Nkephorus j^he
Patriarch. (4J The Canons of the Holy Apoftles ( a
book i'alfly afcribed to the Apofiles ) are in number 85.
according to a modeft Computation, if you have any
Faith to fpare, at lead enough to believe the Church of
Rome^ in that as in other Points, infallible. But the Ca-
nons indeed of the Apoflles^ which are of Order avd Exter-
nal Government, do ohlige ( as Dr. Taylor fays ) the Con-
fcience, hy being accepted in fever al Churches^ not hy their
firji InjVttution ; and were fitted onely to Times , and
Places , and prefent NeceJJities : For ( fays he ) the
Apofiolical Decree of Abjlaining from Blood was ob-
ferved by more Churches^ than thofe of Syria and Cilicia,
to which the Canon was diretled\ and the College of
Widows or Deaconeffes, derived it felf into the manners
of the Wefiern Churches', And the Apofiles in their firjl
Preaching and Converfation in Jerufalem inflituted a
ccenobitick /i/<? , and had all things in Common with Be-
lievers : ( indeed no man was obliged to it. ) Of the
fame nature were their Canons, Counfells, and Advices*^
The Canon concerning Widows^ Let not a Widow be cho-
fen under 60 years ; and yet Juftinian fuffered one of 40
years old to be chofen. Novel. ia3.c. ii, 13. And the Ca- Anonym.
von of the Apofiles forbidding to eat things fir angled^ "^^^ ^^fiou
is no where objerved in the Wefiern Churches of Chri- oforeat^'^^
fiendom. In the beginning of the Fourth Century, Britain-
above 1 300 years fince, we tind our Biiliops, Britifh ^\r .
iliops, at the Councils of Aries, Mice, Sardis, and Ari-
minum ; a clear evidence of the flourifhing flate of
Chriftianity fo^ long fmce in this IHand. At Arks in
France^ convened touching the Donatifls^ appeared for
the Br it a ins , Eborius Bilhop of Tork , Refiitutus Bi-
ihop of London , Adelfius Bilhop of the City called the
Colony of London^ which fome fuppofe to be Colchefler^ , *
others Maldon in Effes ; Sacerdos , a Pried both by
Name and Office ; Arminius, a Deacon, An, 313. At
the Synod of Nice in Bythinia, An. 925' to fupprefs A^
rianifm, were.^r i/^iy^ BiHiops prefent, as /^//7^?/<^/f^j- and
Hilary- Bifliop of PoiUiers^ affirm. At the Council of
Bardk>
7^ The Introdu^ion.
Sarjis in Thracia conven'd by Conflantius and Conftans,
Sons to Confiantine the Great, the Britijh Biihops were
like wife prefent, when the Arians were condema'd, and
Athanaftus acquitted. And at the Council of Ariminum
in Italy the Britijh Bifliops were alfo prefent ; wlio (ac-
cording to Athanafius^ were about An. 3 60. fummoned
to divers Foreign Councils in remote parts. As alio here
at home in and aTter the Seventh Century were divers par-
ticular Councils and Synods, the firft whereof (accord-
Lib. 4. c. $. ing to Staple ton out of Bede ) called the firjl of the Eng-
lifh Nation^ was conven'd at Hertford by The odor us Arch-
bifliop of Canterbury^ who fucceeded Deus-dedit in that
See ,• in this Council the Obfervation of Eafler was fet-
tled according to the Romifh Rite ; yet whofoever will
have this Council to be ( as aforefaid ) The firfi of the
Englijh Nation, muft underftand it the Firft, whofe Ca-
nons are completely extant. Bede lib. 4. c 5-. About the
year 740 Ethelbald King of Mercia, with Cuthlert Arch-
bifliop of Canterbury^ called a Council at Cliffe in Kent ;
the ads of whichSynod were 21 Canons, among which
it was ( inter alia )* Ordain'd, That Prayers Jhould pub-
lickly be made for Kings and Princes. But fome f^v^'
years before this, the faid Theodorus held a S>nod or
Council of Biihops at Hatfield, by authority whereof he
divided the Province of Mercia ( which Sexwolphus
then governed alone ) into five Bifliopricks, -viz. to Che-
. jier, Worcejler, Lichfield ., C edema in Lindfey, and to
Dorchcfier. In the year 692 a great Council was held at
Becanceld by Withred King of Kent., and Bertuald Arch-
biihop of Britain, wherein many things were concluded
m favour of the Church. About the lame time a Coun-
cil v^ ashdd U Berghamjleed by the faid Withred King
of. Kent ; at which Council Bilhop Wilfrid was reftored
to Tarky whence he departed for Rome, upon the endea-
vours which Theodorus Archbilliop of Canterbury had
ufed, to have that Diocefe of Tork divided. In the
year 801 Ethelard the Archbiihop called a ^ynod at
Clivejho'm Kent, where by power from the Pope, he ri-
lotted (that's the word) the Archbiihoprick into tlie
City
The IntroduElion. -^
City of Canterbury. There was iikewiie at Celichyth arr
eminent Council under Wolphred^ who fuccecded Ethe-
lard, Archbilliop of Canterlury. But nigh one hundred
years before this, viz. about the year 709, a Synod was
aflembled at Alncefler in Worcejierfhire^ to promote the
building of Evejham- Abbey, And not long after another
Synod was called at London to introduce the Dodrine of
Image- Worihip into England, now firft beginning to
appear in the publick pradice thereof. Alfo, above one
hundred years before that, Diz, about the year 601,
Augufttne^ by the aid of Ethelbert King of Kent, called
a Council of Saxon and Britijh Bilhops to meet \n the
Confines of the Mercians and Weft-Saxons^ in the bor-
ders of Worcefter and Herefordjhire , under an Oak •
thereby tacitly reproving the Idolatry of the Pagan
Eritains, who aded their Superftitions under an Oak
as the Learned Sr. H. Spelman obferves. In the Tenth
. Century King Edward thtrnd^r. Son of King ^//r^^,Spdm.conc.
called a Synod at Intingford, where he confirmed the
fame Ecclefiaftical Conftitutions which King A/ured had
made before. Many Councils were Conven d during the
Reign of King Athelflan, as at Exiter, Feverfham,
Thunderfield, London , and at Great Lea , which laft is
of mod account in regard of the Laws therein made,
fpecially that concerning the payment of Tithes ,- the
which you may perufe in the Learned Sr. H. Spelm, Con-
di, p. 405-. During the Reign of King Edgar, Hoel Dha
held a National Council for all Wales at Tyquin, which
was wholly in favour of the Clergy ,• this Council was
held when Dunftan was Archbifliop of Canterbury , m
whofe time there were Two other Councils convened
the one at Cartlage in Cambridgftoire, the other at Cain
in Wiltjhire. After this William the Conquer cur conven'd
ai Council of his Bifhops at Winchefler, wherein himfelf
was perfonally prefent, with two Cardinals fent from .
Rome ; in this Council Stigand Archbifliop of Canter-
bury wasdepofed, and Lanfranck 2. Lombard fubffituted
in iiis room. During the Reign of King Henry the Firft
Aneflm Archbithop of Canterbury fummoned a Council
L at
y8 The IntrodjiSlion.
at Weftm'tnjler , which Excommunicated all Married
Priefts, half the Clergy at that time being Married, or
the Sons of Married Priefts. During the Reign of King.
Stephen^ Alhericus Billiop of Hoftia^ fent by Pope In-
nocent into England , convened a Synod at lVeflmi»fter,
wherein it was concluded , That no Prieft, &c. fhould
have a Wife or a Woman in his hcufe , en pain of being
Jent to Hell. Alfo that their Tranfuhflantiated God
Jhould dwell hut Eight days in the Box , for fear of
being Worm-eaten or moulded. Under the Reign of
King Henry the Second ( who difclaimed the Pope's au-
thority, refufed to pay P'eter pence, and interdicted all
Appeals to Rome ) a Synod was called at Weflminfler,
wherein was a great Contefl: between the two Arch-
bifhops of Canterbury and fork for Precedency ; York
appeals to Rome, the Pope interpofes, and to end old
Divifions makes a new diflindion, cntituling Tcrk Pri-
mate of England, and Canterbury Primate of all Eng-
land. Under the Reign of King Henry the Third a
Council was held at Oxford under Stephen Langton
Archbiiliop of Canterbury, wherein many Conftitutions
were made, as againft Excefs of demands for Trccura-
tions in Vifitations, againft Pluralities, Non-Kcfidence,
and other abufes of the Clergy. In the Ninth year of
King Edward the Firft, John Feckham Archbiiliop of
Canterbury, held a Council at Lambeth with his Suf-
fragans, fome account whereof Walfingham gives us in
thefe words, viz. Prater Johannes Peci^am, Cantua-
ricnfis Archiepifcopm, ne nihil feciffe videretur , con-
%)Ocat Concilium apud Lambeth, in quo mn Evangelii
Regni Dei pradicatiomm impojuit, fed Confiitutiones
Othonis (^ Ottobonis quondam Legatorum in Anglia
innovanSj juffit eas ah omnibus fervari, &C. Walfing. in
Ed. I. He then made Sixteen Ecclefiaftlcal Laws, which
are inferted among the Provincial Conftitutions. After
this he fummoned another Council of his Clergy at
Reading, wherein he propounded the drawing of all
Caufes concerning Advowfons to the Ecclefiaftical
Courts, and to cut off all Prohibitions from the Tem-
poral,
The hitrodu^ion. jn
poral Courts in Perfonal Caules ; but upon the King's
exprefs Command to defifl: from it, this Council was dif-
iblved. Parker de Antiq. Ecclef. Anglic, fo. 205-. An. 1190.
Daring the Reign of King Henry the Fourth, Thomas
Arundel Archbiihop of Canterhury convened a Synod at
S. Paul's Church London^ wherein the King joyned with
them in punifhing all oppofers of the Rehgion received.
John Trujfel. de vita H. 4, Under King Henry the Fifth
an Univerial Synod of all the Bidiops and Clergy was
called at London, where it was determined, That the ,
day of St. George, and alfo of St Dmftan^ fhould be a
double Feaft in Holy Church, In the fame King's Reign
was a Convocation held at London^ conven'd by Henry
Chichley Archbifhop of Canterhury, wherein were fevere
Conftitutions made againfh the £<>^ijr</x. In the Reign
of King Henry the Seventh a Synod was held at London
by John Morton Archbiihop of Canterhury^ to redrefs
the Excefs of the London Clergy in Apparel and fre-
quenting of Taverns. We had almoft omitted the Sy-
nod in England An. 13 91. under the Reign of King /?i-
c/^^r/^ the Second, Simon .SW^«ry then Archbiihop of Cj«-
terhuvy ; in which Synod it was Ordain d. That vohofo-
ever Appealed to Rome ( befides Excommunication )
fhould lofe all his Goods, and he imprijoned during his Life.
vid. Hift. of the Church of Great Britain^ -— p. 117. A
Modern and Ingenious, yet unfortunate, Authour well
obferves a Fourfold difference or diftin£tion of Synods or
Convocations in this Realm, in reference to the feveral
manners of their Meetings and degrees of their Power.
The Firfl, he ftates in point of Time before the Conquefl.
The Second^ fince the Conquefi, and before the Statute of
Pramunire. The Third, after that Statute, but before
another made in the Reign of King H 8. The Fourth.,
after the z'^th of the faid King. (1) Before the Conquefl
The Popes power prevailed not over the Kings of Eng-
land, who were then ever prefent Perfonally or Virtually
at all Councils, wherein matters both of Church and State
wye debated and concluded^ f Communi Co'nfenfu tarn f s^c\m. An.
Cleri quam Populij Epifcoporum, Procerum, Comitum, w^c 60$. p. 118.
L 2, noH
§^ The Introdu^ioTU^
non omnium Sapientum , Seniorum populorumque totius "^
Regni. {ji) Atter the Ci^^^^f/?, but before the Statute of
Trcemuntre^ the Archbiihops uled upon all emergent Ca
fes, toties quoties, at their own dircretions to alTembk
i\ickrgy oi i\\2\i' xd^^CiwQ Provinces, iv here they plea-
led, connnuing and diffolving them at ^their pleaiure ;
which they then did without any leave from the King;
whofe Canons & Conllitutions (without any farther Ra-
tification) were in that Age obligatory to all fubjedledto
their Jurifdidion. Such (it feems) w ere all the Sjnods
from LanfranckioTho. Arundel, Archbiiliop of Canter-
hury, in which ArundeFs time the Statute of ?ra:mmire
was Enafted. (3) After which Statute (which much re-
flrained the fapal power, and fubjeded it to the Laws
of the kand) the Archbiiliops called no more Convoca-
tions by their •fole and abfolute Command, but at the
pleafure of the King, by whofe Writ and Trecept onely
they were now and henceforth fummoned. Of this Third
fort of Convocations, were all thofe kept by and from
Thomas Arundel unto Thomas Cranmer, or from the 16//;
of R. z. unto the zsth of King H. 8. Thefe Convocati;
onsalfodid make Canons (as in Lindwood's Conftitutions)
which w ere Obligatory, although confirmed by no other
Authoriry than what was merely Synod ical. (4) The
lad fort of Convocations, fince the faid Statute called the
25//; of King H. 8. That none of the Clergy fhould pre-
fume to attempt, all edge, claim, or put in ure, any Confli-
tutio ns , or Ordinances Provincial , or Synodals, or any
other Canons , Conftitutions , or Ordinances Provincial
( 'hy whatfoever Name or Names they may he called ) in
their- Convocation in time coming, Qwhich always Jhall
he affemUedhy the Kings Writ') unlefs the fame Clergy
may have the Kings moft Royal ajfent and Licenfe to
make, promife and execute fuch Canons, Conftitutions and
Ordinances Provincial, or Sy nodical , upon pain of eve-
ry one <yf the faid Clergy doing the contrary to this Ati^
m^ thereof convitied, to fuffer imprifonment , and ma-
king Fine at the Kings will. Since this year, from Arch-
bilhop Cranmer to this day, all Convocations are to have
the
The hitrodiMion. 8
the King's leave to debate on matters of Religion ; and their
Canons (befides his Royal aflent) an Ad of Parliament
for their Confirmation. And as to the General Councils,
there are not any oF them of ufe in England!^ except the ^''•^pj? ^^
firfl Four General Councils, which are eftabliilied into a cap.^4 f. 627.
Law by King and Parhamenr.
The Learned Biihop Pr/deaMx in his Synopfu of Coun-
cils gives us the definition of Sjnodograpbie^ and fays, It
is fuch a Methodical Synopjis ot Councils and other Eccle-
fiaftical Meetings, as whereby there may be a clear dif-
covery to him that doubts, how any Cafe may be enquired
after, and what may be determined concerning the fame.
And then immediately after gives us the definition of a
Council, which he calls a FreePublick EccIefiaRical Meet-
ing, efpecially of Biihops, asalfo of other Do£lours law-
fully Deputed by divers ChurcheSv for the Examining of
EcclefiaiHcal Caufes, according to the Sciptures, and thofe
according to the power given by common Suffrages,
without favour of parties to be determined, in matters
of Faith by Canons, in cafes of Pradice by Prefidents,
in matters of Difciphne by Decrees and Confiitutions. Of
thefe Councils he obferves fome to have been Judaic al,
others A^ojiolical, others Oecumenical^ fome Controver-
ted^ others RejeEied, and fome National, to all whic'i fie
likewife adds Conferences, f i) Under the Title of Ju-
daical Councils he comprehends the more folemn Meet-
ings about extraordinary affiirs for the Confirming, Re-
moving, or Reforming any thing, asthe matter required.
Such he obferves to have been at Sichem under Jojhua
and Eleazer^ Jifh. 24. At Jerufalem^ tlie firft under
David^ Gad and Nathan being his Allidenrs, i Chro. 13.
At Carmelita under Ahal and Elias^ i King. 18, At Je-
rufalem^ the Second under Hezekial\ 1 Chro. 29. At J^-
rufalem^ the Third under Jojiah and Hilkiah^ z King. 33.
^ Chro. ^^, At Jerufalemy the Fourth under ^<?r^^7^^/
and Ezra^ and the Chief of the Jews, that returned
from the Captivity of Bahylon. And laflly, that which
is called the Synod of the Wife under John Hirca-
nus.GenelrandChron, 1,1, p.x^)-]. {%) The ApoJlolical
Councils
82 The Introdu^ion.
Councils he obferves to have been, for the fubftituting of
Matthias in the place of Judas y Mt, i. For the Eledion
of Seven Deacons, A^. 6. For not prefling the Cere-
monial Law, JlL 1 5-. 1 1. For the toleration of fome Le-
gal Ceremonies for a time, to gain the Weak by fuch
Condefcenfion, Alatth. xi. 18. For compofing the A-
poftles Creed. For obtruding to the Church 85 Canons
under the notion of the Apoftles authority, concerning
' which there are many Controverfies. Lailly, for the
Meeting at Antioch , where among Nine Canons, the
Eighth commanded Images of Chrifl to be fubftituted in
the room of Hearhenifli Idols ;. the other pious Canons be-
ing deftitute of the Synod's authority, u id. Bin. Tom, i.p.
19. ^ Longum p. 147. {j\) Of OdT«mf«/c^/ or General
Councils, fome were Greek or Eadern, others were Latin
or Weflern. The more Famous of the Oecumenical
Greek Councils were, the Nicene, the firft of Conflanti-
nople y the firft of £'/>/;f/^x , tha ^iX^ o^ C hale e don. Of
Conftantinople^ the fecond of Conftantinople., the third.
The Nicene the fecond. The more Famous of the Oecu-
menical Latin Councils were at Ariminum : the Later an:
at Lions : at Vienna : the Florentine : the Lat.?ran the
fifth ; and laftly at Trent. (^4) Of Controverted Coun-
cils ( if that diitindion be admiflable, according to the
Claffis thereof digefted by Bellarmine) the Computation
is at Conftantinople the fourth: at Sardjs: at Smyrna:
at Quinifext : at Francfort : at Conflance ; and at Bafil.
(5-) Of Reje&ed Councils ( whereby are intended fuch
as either determine Heretical Opinions, or raife Schifms)
the Computation is at Anticch : at Milan : at Seleucia :
at Ephefus the fecond ; at Conftantinople : at Pifa the
firft ; ; and Pifa the fecond. (6) Of National Synods,
which comprehend the Provincials of every Metropolitan
or Diocefan Bifhop, the diftribution is into Italian,SpaniJh.,
French^ German., Eajlern, African, Britain. (7) To thefe
m.ay be added Ecclefiaftical Conferences., which were one-
ly certain Meeting of fome Divines, wherein nothing could
be Canonically determined, and therefore needlefs to be hei e
particularly inferted. vid.B, ^n^z^xxy^Syn.cf Counc.verj fin.
Teh
Ihe Introduaion, g^.
The grand Cenfure of the Church, wherebyjit punifh- Excommmi^
eth obflinate Oflenders, is by way of Excvmmunication '''^'°"'
which though the Canonifis call Trad'itio Diaholo^ or
giving the Devil as it were Livery and Seizin of 'the
Excommunicate perfon, yet the Romanics have a Tra-
dition that S. Bernard Excommunicated the Devil him-
it\^, Santim Bernardus , pknm uirtutihus^ qua dam die
pr^fentihus Epifcopis, clero , ^ populo , Excommtmica-
*vit que-^dam Diaholum Incuhum , qui quandam mulie-
rem in Britannia per feptennium ^exahat; ^ fjc Lihe-
rata eft ah eo. Chron Jo. Bromton. de Ternp. H. i,
A mnaculous Excommunication , and a Sovereign Re-
medy againil Diabolical incubations. The Excommu-
nication U'hich St. Ofwald pronounced againfl one, who
would not be perfuaded to be reconciled to his Adver-
fary, had nothing fo good though a more ftrange efTedt,
for that Excommunicated him out of his Wits, and had'
it not been for Wolflan^ who as miraculoudy cur'd him,
you might have found him, \'i not in Pwgatorj, then in
Bedlam at this day ; //// cujus es ( fays Sanllus Ofival-
dtis') Te cowmendc^ ^ carnem Sathar?^ tt^am trado, Sta- ■
tim ille dent thus ftridere, f pumas jacers^ caput rot are
incipit, ^ Qui tamen a WoHtano farlatus , cum Pacem
adhuc recufaret , iterum ^ tertio eft arreptus fimili
modo^ quoufque ex corde injur iam r emitter et ^ off en- ^
Jam. if you have not Faith enough to believe this on
the Credit of Abbat Brompton, \\ ho Chronicled from
the year 5-88, in which St. Auftin came into England, to
the death of King Richard the Firff, which was in the
}car 1 198. if you have not (I fay) faith enough for
the premises, you are not like to be fupplied with anv
on this fide Rome^ unlcfs you have it from Henry de .
Knighton Ca'non of Leyfter, who wrote the Chronicle
De Eventihus Angltce, from King Edgars time to the
death of King Richard the Second, ibr lie in his Second
Book de TempW.x. doth put it under his infallible pen for
an undeniable Truth. And indeed is much more proba-
ble^, than what the faid Abbat reports touching St. z^/^-
/?/^'s raifmg to life the Pried at Cumpton in Oxfordjhire 150
years
g^ The Introdu^ion,
years after his death, to abfolve a Penitent Excommun
cate, that at the fame time rofe alfo out of his grave, an
walkedout of the Church at S. Auftins Command, That
no Excommunicate perfon Ihould be prefent whilft he
was at Mafs, having in his life-time been Excommuni-
cated by the faid Prieft for refufing to pay his Tithes.
vid. Chron. did. Bromton de Regn, Cantios. Excommu-
nication is of fuch a large extent, that this World is too
narrow to contain it , therefore it extends it felf to the
next World alfo, and that not onely in reference to the
Soul, but alfo to the Body ; infomuch that the interr'd
Bodies of Perfons dying under Excommunication, have
often been inhumanely exhumated and taken out of their
Parochial graves, to adociate with the rotten Carcafes
of bruit Beads, a Prefident whereof you have in King
Edward the Third's time, when the Pope by his Bull to
the Billiop of Lincoln Commanded, That the Bodies of
ail llich Excommunicates as in their Life-time had ad-
hered to the Lady Wake, in the Conteft between her and
the Biihopof Ely touching a Mannor, Ihould be taken
out of their Graves , and caft out of the Church-yard.
This is much worfe than to be denied the honour of a
Chriliian burial, which by the Council at Rome, An.
1 1 80. was the punilhment of fuch Lay-perfons as tranf-
ferr'd the Right of Tithes to other Laicks, without de
livering them to the Church ; yet by the Sixth Canon of
that Council it is Ordain'd, That no man jhallle Exccm-
municated or fufpended from his Office , until he he le-
gally and duly fummoned to appear and anfwer for him-
felfy except in fuch cafes as defer ve fummary Excommu-
nication. It was a flrange Excommunication as to the
new and infolent Form thereof, wherewith Pope 77;^^-
dorus Excommunicated Pyrrhus Patriarch of Conflan-
tinople, who having been infedted with the Herefieof
the Monothelites, and thereupon Excommunicated, and
upon his Recantation abfolved , relapfed into the fame
Errour, whereupon the faid Theodorus Excommunicated
him the fecond time , but in fuch a way and manner ,
as never had a former Prefident or fecond Pradic'^:
For
1
The Introdu£lion. o
For he infufed fome drops of the confecrated Cud into
Ink and therevvith writ a Sentence of A/athema
agamft Purhns. Hifl. M.g. Cent. 7. cap. 39, ZeZl
the DeaJ may le Excommunicated.' Was the fiH>
Queft.on moved in the Fifth General Counoi at Col "
lo whiCii Eutichius anfwered, That as JoCnh o„e„.j
the Sepulchres of the Dead, W burnt SlC '""*•' ^'*
So the Mmor.als of fuch might he accurfed after their
death who had injured the Church in their life- fnr
wh,ch pertmenc Anfwer the faid Emperour mad; hkn
Biihop of CcnJ}antm.ple ; (o that he Weeded MeZ
who about the fame time had departed this hk fut
denly, ntt,ng the Council. That worthy Prelate, who
affirmed. That u^-as certainly unlau^frS to E.rcomZ Vr.r.ylo. ,„
mcate any man for not paying the Fees of Courts -^"-CafQ'"
fcarcefo generally credited m his Laiv, as he mav'de iif ""'•
.ferve to be ,n his Doltrines, efpecially'when h^Re :'''7-nT.l-
fonfor that AlTertion, ^iz. That I Contumacy VhTre
(fpeaking of Courts Ecclefiaftical) « an Offence aZYnl
the Ctvd Pou,er. .s duly weighed and confide ed? 3
more dpecally when (uch F?es are not PaL Z
withQafiding the Orders and Decrees o S Coum
for the payment thereof: Contempts of wh^ch k"nd
m.g t pafs u holly unpunilhcd, if Ecclefia(licrCenfu*"es
hould not take place in fuch cafes. Many are the P I
jud.ces wh.ch enfue upon Excommunicanon fom^
u^ereof ^n cale of obflinate perfiftency) reacii ,« a!
Men. as we(J as Chri^ans, and feem, as it were oul
-^» us. as well as unchrijlian us ; ex>er..^iog ' r^t
irachrum Seculare ) as well to our Ci-vil Libfrty ^as
C per cenfuram Ecclefiafiicam i to fiur ChriHi^„ L ' •
a dreadfull influence both o^ Body and So7 'and thl
m both worlds. Rehuffus enumerates no 5 dm
above Threefcore of thele penalties, for fo h. ca% them
cleZ ^t P''"'°"^^^ ^'•« "^'ra Comrr.unionerH Z
cleM , or Excommunicates with i,s , were apud Re
ir.os anciently called Apofynagogi . a's caft ot offhe"
^ Synagogue,
g^ The Introdu^ion.
Synagogue, and for their Coatumacy ^x^^rr^fy , to be
fhunn'd of all men until they repented. OU. Such as
are Anathematizd and under the greater Excommuni-
cation, are as it were expell'd out of all Humane Society
and banhh'd from Mankind ( underftand it of thofe
within the Church ; ) fuch an Anathema may be lome-
what compared to that Punilhment , which the Romans
of old called Inter Mio ignis & aqua, borrowed from
t\iz Grecians, which their great Legiflator Pr^c.? ena-
aedas a Law to the Athenians, and which Punilh-
mf^nt in truth was fecond to none , fave that which is
circumfpe^e Towards the clofe of this Ecclefiafttcal Abridgment
^^''^' you have fome mention made of the Statute of Circum-
(peae A^atu: In the Thirteenth year of the Reign ot^
King Edward t\it Firft, An. ix8^ the Bounds and Limits
of both Jurifdidions Spiritual and Temporal were fixd
by Parliament, by a Statute under that Title , the En^
lijh whereof tranflated from the Latin out of the Re-
cords runs thus, viz.
the King to his Judges fendeth Greeting. Vfe your
*Sumfedtofelves circumfpemy in all matters concerning the Bi-
i« William yj(,/>f (7/ Norwich, and his Clergy, not puntjh^^ng them,
+ NoS if they hold Flea in Court Chriftian, of fuch things a^
An Example bt weerly Spiritual, viz. of penance enjoyned for
inone^tofiand ,^^n ^^^^ oj Pomication , Adultery, and fuch like:
VaT for the which many times corporal penance or pecuni-
ary IS enjoyned, fpecialiy if a Freeman he convid of fuch
things. tit
Alfo if Prelates do punijh for leaving Church-yards un-
clofed , or for that the Church is uncovered, or not conve-
niently decked; in (ti^ichi^es none other penance can he
enjoyned, hut pecuniary, ^ n ^i
Item, If a Tarfon demand of his Tarijhioners Ob-
lations 'and tithes due and accuflomed ; or if any per-'
fin plead againfl another for Tithes, more or lefi, Jo
that the Fourth part of the value of the Benefice he not
demanded.
Item
The IntroduSlion,
Item, If a Tarjon demand Mortuaries in places where
a Mortuary hath ufeel to have he en given.
Item, If a Prelate of a Church, or if a Patron de-
mand a Penfion due to themfehes\ all fuch demands are
to he made in a Spiritual Court. And for laying
violent hands on a Priefl , and in cafe of Defamation,
it hath heen granted already , that it Jhall he tried in a
Spiritual Court, when money is not demanded, lut a t^tng
done for punifhment of Sin , and Itkevoife for hreaking^
an Oath. In all cafes afore rehearfed ^ the Spiritual
Judge fhaU have power to take knowledge, notwithflanding
the Kings Prohibition, vid, Lindw. Con ft it. lib. t. Tit
De Foro Competent i. Vid. Full. Chur. Hifl. lib i
P- 79-
Now whereas fome doubt hath heretofore been, whe-
ther this were indeed an AQ: of Parliament, or any
thing more than a Conftitution made by the Prelates
themfelves , or onely a mere Writ iffued out from the
King to his Judges, Sr. Ed. Coke. Injlit. par. 2. pag. 487.
refolves it in exprefs terms thus, viz. Though fome have
faid, that this was no Statute , hut made by theP relates
themfelves; yet that this is an A^ of Parliament, it
u proved not onely by our Books, hut alfo by an Atlof Par-
liament.
By this Statute of Circumfpetle Agatis, the Ecclefiafti-
cal Court might proceed to punifli the Offender^ who
offered violence to a Pried ; the which de jure it might
do by proceeding Ex & Officio pro falute anima , Da-
mages on an A^ion of Battery in the cafe referved to the
Common Law.
To conclude,- The Proteftation which Bellamera the
Canonift, in the Proeme to his Lefture on the Clemen-
tine Conftitutions makes, (hail (as to this Repertcrium
Canonicum , Jurifve Anglico-Ecclejiafiici Compendium )
be mine, Id fubmittens corretiooni & determinations
tarn Canonum Ecclefiajlicorum , quam Statutorum , Jw
ruM^ue Publice Forenjium & Secular ium , ^ cujuflihet
%elius fentientisy Protejlans, q^uod fi in pmfenti Opuf
culo de lapfu calami^ aut inadvertentia , vel forte
87
88 The Introdu^ion.
ex ignorantia aliquajam ScripJet?o^ id prater intent to-
nem jcribere me contigerit : Si etiam aliqua Scripjero,
qu£ errorem faperent^ aut male fonarent, ilia ex nunc Re-
voco, (^ vdohaheri pro nonScri^tii; Determinationdufque
Ecclefia Anglicanx, ^ ditii Juris Forenfis Oraculis femper,
^ in omnibus volo ftare. Et banc Proteftationem volo pro
Kepetita haheri in quolihet Di^orum meorum, © etiam con-
dicendorum^ ut ft reprohantur di^a, AtUr non propter hoc
reprohetur*
Th(
I
2X
The feveral C H A P T E R S of the
Enfuing Abridgment
chap. ''" '^ p
1. /^^ ^^" M^jeflies Supremacy,
2. V-^ ^/ Archhifhops,
3. 0/ Bijhops and Ordinaries. ,v \
4. 0/ Guardians of the Spiritudltfes'y ,0
5-. 0/ Con^e d' Ellire, Eletiion^ and Ccnfirmation, 41
6. Of Confecration^ ^6
y. Of Deans and Chapters, . ^j
8; Of Archdeacons, ^q
9'.' Of Procurations, Sjnodals, and Pent ecoftals, 6y
IQ- Of Diocef an Chance/lours, Commijfaries, Officials ; as
alfo of Confflories , . 3q
1 1- Of Courts Ecclefiafiical and their Jurifdi^ion, 94
1,1. Of Churches, Chapeis, and Churchyards, 134
13. Of Church-wardens, Queflmen, and Sidemen, 159
1^. Of Con folidatioH and VnioH of Churches, 169
15-. Of Dilapidations, 17,
id. 0/ Patrons, andDe jure Patronatus, * 178 *.
ly. Of Parfons and Parfonages, ig^
1 8. Of Ficars, Vicarages, and Benefices, 19^
:i9. (9/ Advowfons, 204
20. 0/ Appropriations, 220
zi. Of Commendams, . .220
zzrOfLapfe, ' 242
z-^. Of Collation, Prefentation, and Nomination, 251
24. 0/ Examination , Admiffton , Injlitution , ^W ///.
^«^/V«, 269
25-. Of Avoidance and Next Avoidance ; alfo of Cef-
fion, 282
26. 0/" Pluralities. , 291
zy Of Deprivation, . ^q^-
28. (9/ Incumbents ; alfo of Hefidence and Non-Refi'
dente, ^ j ^
29. 0
ZQ Of Achats and Ahhies ;, /:ilfo of Chauntreys ; and
of the Court of Augmentations ^ ' 316
3a Of Annates or Firji- Fruits i aijo of Aumone , or
Franck' Almoin, ^}$
31. Of Altarage, 339
^z. Of Tithes, with the Incidents thereof 344
33. 0/ Banns , 465:
34. Of Adultery, * ^9
3 J. Of Baflards and Baflardy, 477
16. Of Divorce ; alfe of Alimony^ 492
37. Of Defamation^ S14
38. Of Sacrilege, S^^
39. Of Simony, SiS
40. Of Blafphemy, Here fie, and Hereticks, 5-5-9
41 Of Councils, Synods, and Convocations, 5:84
41. Of Excommunication, 6^l
43. of the Statutes, Articuli Cleri, and Circumijtefte
Agatis, ' 6^9
44. Of fever al Writs at Commotf Law pertinent to this
Suhje^, 64)
A N
AN
ABRI DGMENT
O F
ECCLESIASTICAL LAWS.
CHAP. I.
Of the Kings Supremacy,
1. A Vefcription thereof ^ or what it is.
2. The Efiablijhment thereof by Statute Laws.
3. The Oath of the Kih£s Supremacy .f when firfi ena^ed ; thesaufe
thereof.
4 The King in his own Dominions^ Dei Vicarius.
5. The Xing Supreme Covernour {under God) of the Church in
England, &c.
6. Impugners of the Kin£s Supremacy how cenfured by the Canon.
7. In matters Ecclejiafiical the King hath here the fame power de jure,
which the Pope formerly exercifed by Ufurpation.
8. The Kings of this Realm anciently made their own Canons andEc-
clejiaftical ConflitHtions without the Pope'*s Authority.
" 9. The King isLtXwivSi^infome cafes may dffpence With fome Canons.
10. Provifoes of fome Statutes in right of the Kings Supremacy. .
11. No Canons or Ecclefiaftical Conflitutions to be made.^ or to be of
force to oblige the SubjeB without the Royal AJfem.
I 2. The Regal Supremacy offer ted by the Ecclefiafiical JnjmSiions of
King Ed. 6.
1 3 . The fame farther ajferted by other Ecclepaflical Power and Autho-
rities,
14. The Regal Supremacy ajferted in the Reign of jQ^een Elizabeth.
T
(i.)^nr^His EcckJJafiical Abridgment begins with the Regal
Supremacy^ a Point which cannot be touch'd with
too much tendernefs ^ fuch of the Church of Rome
asqueftion the validity thereof, may beprefumed
not to have confulted that Learned Canonift of their own, Jo.
^intinttt Hotdem^ where he fays, That Nemmi dubium^ qnin in
» Pri'
Of the Kings bupemacy
7. Q Hotd FrmmvaEccUfiaderehtu&TerfortUEcclefiafitcisVrtnctfesjtudtX'
RepSinc. erint. TheEmperours were all Secular Princes, who by thofe
Novir.De Ju Laws which they eftablifhed touching Perfons and Things Eccle-
dic.nu. 145- ijaftical proclaimed to all the World their Supremacy therein :
The Thirteen Firft Titles of the Firft Book of the Emperour
. Jufiinianh Code^ being the Conftitutions of divers £w/'fr«>«r/,
do treat and judi^e of Things and Perfons mtvd^ Ecclefaflical-^
•yea theEmperours -/4/c^^^/&f and Honorita ejedleda Bilhopas
well out of his Title of Ecclefiaftical Dignity as out of his Epi-
fcopal See, and commanded him to be Banifliedfor difturbing the
Publick Peace. / quicunque^ C. de Epifc. & Cleric. By this word
r Supremacy'} is here underftood, that undoubted Right and an-
cient Juriididion over the State Ecclefiaftical within thefe his
Majeftie's Realms and Dominions (with the abolifhing of all Fo-
reign &nd Ufurped power repugnant to the fame) which the Laws
and Statutes have reftored to the ( town of this Kingdom, and
>, now inverted in the King, as the higheft power under God, with-
in thefe his Majeftie's Realms and Dominions, unto whom all
perfons within the fame, in all Caufes and Matters, as well Ec-
clefiaftical as Temporal, do owe their Loyalty and Obedience,
before and above all other Powers and Potentates on Earth
jR'hatever.
(2.) BytheIninnaionsofKing£^.6.totheClergy, all per-
7' M ?• ?r fonsEcclefiaftical having cure of Souls, were Four times a year
^°"f to preach in vindication of the King's Supremacy, and m
oppofition to the ufurped power of the Bifhop of Rome in this
Kingdom. There were divers Laws made in the time of King
H. 8. for the extinguiihment of all Foreign Power , and for the
reftoringunto the Crown of this Realm the ancient Rights and
Turifdiaionsof thefame-, which is thefubftanceofthe Preamble
(a^Qo infl of the Statute of 1 £/^x.. cap. i. The exprefs Letter and
k?i c 74. meaning whereof is, as Sir Edrvard Coke obferves ^ to reftore
and unite to the Crown the Ancient lurifdidion Spiritual or
Ecclefiaftical, where ( as fays he ) the Firft claufe of the Body
of the Adt, being to let in the Reftitution of the Ancient
Right and Jurifdiaion Ecclefiaftical within the Realm, doth
abolilhall Foreign Jurifdicflion out of the Realm. And then
followeth the principal Claufe of Reftitution and uniung of
' the ancient Jurifdidion Ecclefiaftical,. being the main purpoFe
of the Ad, in thefe words, 'viz,. Be it EnaBed, That fuch
Jurifdiaion Spiritual or Ecclefiafiical , at hy any Spvntual
Power or Authority hath heretofore hem , or lawfully may
be exercifed or ufed for the vifitation of the Ecclefiaftical State
and Perftns^ and for Reformation , Order., and CorreHton of
Of the Kings Supremacy.
the fame, and of all manner cf Erroursy Hereftes, S^hifms^ AhufeSj Offen-
ces ^ Contempts and Enormities^ (hall for ever by Authority of this P arli^
amenty be united and annexed to the Imperial Crown of this Realm. This
Ad by a former Claufe thereof doth Repeal the Statute of i and
2 P/). C^ -(^<». c. 8 . whereby the Ads of 2 6 //. 8. c. I . and 3 5 f/. 8. r. 3.
were repealed •, fo that the Adt of Repeal being repealed, the faid
Ads of//. 8. were implicitly revived, whereby it is declared and
enaded. That the King his Heirs and Succe^ours^ (l)ould be taken and
accepted the onely Supreme Head in Earth of the Church of England, and
(leuld have and enjoy ^ annexed to the Imp&ial Crown of this Realm^ at
well the Title and ftyle thereof ^ as all Honours^ Dignities^ Preheminen- .
cieSy JurifdiBions^ C^c. to the faid dignity of Supreme Head belong'
tng^ &c. By which Style Title and Dignity the King hath all Ec-
clefiaftical Jurifdidion whatever ^ ^ and by which Statute the Crown b co. ibid.
was but remitted and reftored to its ancient Jurifdidion, which had
been formerly ufurped by the Bifliop of Rome c. And this is that « DavUx.
Supremacy which is here meant and intended. Proxies 4.
(3.) The faid Statute of 1 Eliz.. c. i. doth not onely repeal the faid
Stat, of 1 and iP. & M. c. 8. but it is alfo a reviver of divers Ads
aflerting feveral branches of the King's Supremacy, and re-eftablifli-
ing the fame;, it doth likewife not onely abolifli all foreign autho-
rity, but alfo annex the Ecclefiaftical Jurifdidion to the Crown of By virtue
this Realm, with power to affign Commiflloners for the exercife of hereof were
Ecclefiaftical Jurifdidion : And then farther enads to this efFed, p^f^^^gf^/^^
viz. That all Ecclefiaftical perfons of what degree foever, and all jjighcmmip-
and every Temporal Judge, Juftice, Mayor, or other Lay or Ttm-fion Court.
poral Officer or Minifter, and every other perfon having Fees or
wages from the Crown, within this Realm or the Dominions there-
of, Ihall upon his corporal Oath teftifie and declare in his confci-
ence. That the King's Majefiy is the onely Supreme Governour of this
Realm , and of all other his Ma]efty'*s Dominions and Countries , oi
well in all Spiritual or Ecclefiafiical things or caufes^ as Temporal ; and
that no foreign Prince ^ Perfon .^ Prelate .^ State or Potentate hath or
ought to have any jurifdiEiion ^ power ^ fuperiority ^ preheminence or
authority^ Ecclefaftical or Spiritual , within this Realm ^ and there*
fore doth utterly renounce and for fake all foreign jurifdiClions., powers
fuperiorities and authorities j and doth promife that from henceforth
he JhalL bear Faith and true Allegiance to the Kings Majejly^ his Heirs
and lawfull Succeffours^ and to his power (hall ajfiji and defend all JH-
rifdiBions , privileges , preheminencies and authorities granted fir
belonging to the Ming's Majefiy, his Heirs and Succejfours^ or united or
annexed to the imperial Crown of this Realm. The pradices of the
Homanifts in the ^th year of Queen EUz^abetb,. and the danger
thereby threatning both the Queen and State, occafioned her to call
• N a Par-
Of the King s Supremacy.
a Parliament 12. Jan. An. if^6|, which paHed an A6t For afuranct
of the Qaetns Roya,l power over all Ejiates and SnbjeSis within her Do-
minions. By which Statute was enadted the Oath of Supremacy ^
as alfo what perfons were obliged to take it, and who fhould have
power to adminifter the fame : And this was both the original and
the caufe of that Oath. By the faid Statute of i El.c. i. appears
alfo what the penalty is for refbfing to take the faid Oath^ as alfo
the penalty of maintaining a foreign Authority, as likewife what
other perfons than the fore- mentioned Ihall be obliged to take the
faid Oath ^ which was afterwards again farther ratified and efta-
blifhed by the Statute of 5 Eliz.. c i.
(4.) The King within his own Territories and Dominions, is
(according to BraEton) Dei l^icaritu tarn in Spirit Halibut quam Tern-
& Brail. Ac poralibw^. And in the Ecclefiaftical .Laws of Edward the Con-
Leg. & Con- fejfor the King is fly led, Vicariw fummi l^egis, & Reges regunt Ec-
fuetud. Atigl. clefiam Deij in immediate fubordination to God « : Yea the Pope
£^€£^1' ^^"^f^^f» Elutherius.^ An. 169. Ibyled King Lnciui^ Dei Vtcarim in
Sp'elm. Cone. R^if^ofHof. ,. , ^ .
♦ spelm. ib. (5.) The Supremacy which heretofore the Pope did ufurp in this
Kingdom was in the Crown originally, to which it is now legally
-reverted. The King's Supremacy in and over all Perfons and Caufes
Ecclefialtical, within his own Dominions, is eflentially inherent in
him i fo that all fuch Authority as the Pope here once ufurped ,
claiming as fupreme Head, did originally and legally belong to the
g 25H.8. 1. Crown, and is now re-united to it by feveral Statutes asaforefaid s.
JEI.1.5EI.1. On this Supremacy of the King, as fupreme Head, Sir Edward Coh^
vid Co. inftit. grounds the power of granting a Commiffion of Review after a
• *c<).ubifup.^^^"*"^^ Sentence in the Delegates^., for one reafon that he gives,
deCom. ad is, becaufe after a definitive Sentence the Pope, as fupreme Head
Rcvid. by the Canon Law, ufed to grant a Commiifion ad Revidendnm :
And fuch Authority as the Pope had, claiming as fupreme Head,
doth of right belong to the Crown •, Quia ficut Fontes communicant
aquoi fluminibtts cumulative^ non privative : fic Rex fubditis fuis jurif-
diSiionem communicat in Caufis Ecclejlafiicis ( vigor e Statuti in hujuf*
'Co. Ibid. modiCafuediti) cumulative^ non privative'^.
Edk. An. (6) By the Second Canon of the Ecclefiaftical Conftitutions of the
jf<05. ' ChmQ\\ of England it is ordained. That whoever fhall affirm, that
the King's Majefty hach not the fame authority in Caufes Ecclefi-
aftical, that the godly Kings had among the Jews., and Chriftian
Emperours in the primitive Church, or impeach in any part his Re-
gal Supremacy in the faid Cafes reftored to the Crown, and by the
Laws of this Realm therein eftablifhed ^ Ihall be excommunicated
iffo faBo, and not be reftored but onely by the Archbifhop after his
repentance and publick revocation of thofe his wicked Errours.
(70 The
Of the Kings Supremacy.
(7.) The King being next cnder God fupreme Governaur of the
Church oi England, may Qua talis redrefs as he fhall feecaufe, in all
matters of Spiritual and Ecclefiaftical jurifdidion for the conferva-
tion of the Peace and Tranquillity of his Realms k. The Pope as « vid Sr
appears by the Stat, of 25 H, S.c. 21. claimM full powerto difpenfe fupradidt
with all humane Laws of all Realms in all Caufes, which he called
Spiritual : Now the King as fupreme hath the fame power in himfelf
within his own Realms legally, which the Pope claimed andexerci-
fed by ufurpation. Eadem prafumitur mem Regis^ qu£ eft Juris, The
King's immediate, pcrfonal, ordinary, inherent power, which he
executes or may execute Juthoritate Re?ia fuprema Ecdeftaftica^ as
King and fupreme Governour of the Church o( England^ is one of
thefe 1-lowers cjui facinm Coronam i. Nor is the King^s immediate ^CoU and
power reftrained by fuch Statutes as authorize inferiour perfons • ^^''^'■'" 2-
The Lord Chief Juftice Hoban afferts. That although the Scat. of g;;;!''}^^
25 ^. 8. 2 1 . doth fay. That all Difpenfations, &c. Iliall be granted vemflnd
in manner and form following, and not otherwife, yet the King is Uc'bfield.
not thereby reftramed, but his power remains full and perfedt as be- ^^^' ^^V
fore, and he may ftili grant them as King-, for that all Adls of Grace
and Juftice aow from him •". By the Eighth Canon Concilii Calchu- «" Ibid.
then/is held under Pope yidrian the firft, ^77. 787. the Pope had
power togrant what immunities and privileges he pleafed in Church-
matters, and they were by the faid Canon to be duly obferved:
Whatever authority the Pope pretended to in this Kingdom in fucfi Cond/. Cal^
matters by way of Ufurpation, the fame may the King, as fupreme '^*«^*. c. 8.
Governour of the Church next under God in his own Dominions, ufe '^^'^^'"•
and lawfully exercife by his Regal authority, exjufta plenitudine Pott-
ftatisfna. Likewife Pope ^^^<«r^ow, >^«. 680. in Concilio Romano- Bri^
tannico^ exercifed his Papal authority, in the time of Z,<7/W>/« King
of Kent ^ not onely touching the Reformation of Errours and Here-
fies then in this Church, but alfo as to the compofure of differences
and diilenfions that then were among the Clergy of this Realm. Such
Precedents of the ufurped power of the Papal See exercifed in this
Kingdom, are now of no farther ufe, than to illuftrate or exemplifie
the Legal power inherent in the Kings of this Realm in fuch matters
of Ecclefiaftical jurifdidion ; for the moft high and facred Order of
Kings being of Divine Right, it follows that all perfons of what e-
ftatefoever, and all caufes of what quality (bever, whether Ecclefia-
ftical or Civil, within his Majefty's Realms and Dominions, arefub-
ordinated to the Power and Authority of the King as fupreme. It is -
not onely acknowledged, but alfo conftituted by way of an Ecclefia-
ftical Canon, That the power of calling and diftblving Councils both Can. i. of the
National and Provincial, is the true Right of all Chriftian- Kings ^y"o^ ''eld
•within their own Realms and Territories. ^ • ^■^^- ^' Y^^''?^'^ ^5 ^'"J""'
N 2 (8.)The^"''-^"
Of the Kings Supremacy.
(8) The Ecclefiaftical "Legiflative power was ever in the Kings
of this Realm within their own Dominions ^ That in ancient
times they made their own Ecclefiaftical Laws, Canons and Con-
ftit.utions, appears by feveral Prefidents and Records of very great
antiquity , which were received and obferved within their own
Territories without any Ratification from any Foreign power.
Oneinftance (among many) may be given ofthe Ecclefiaftical Laws
oiAlnred Mag. Regis Anglornm^ An. 887. This they did de jnre^ by
virtue of their own inherent Supremacy. And therefore when
Pope Nicholas the Second, An. 1066. in the Bull wherein he ordai-
ned Weftmtnfier to be the place for the Confecrations of Kings, gave
power to Edward the Confejfor and his Succeflburs, to conftitute fuch
Laws in the Church, as he fhould think fit, he gave him therein
no more than was his own before : For the Kings of England
might ordain or repeal what Canons they thought fit within their
own Dominions in right of their Regal Supremacy, the fame being
inherent in them Jure Divlno^ non Papali. For we find that in
King JEtheldred^s days, An. 1009. *" ConftUo <t/£nham€nfi General*^
the Canons then made, and afterwards caufed by King Kanntut to
be tranfcribed , were called the King's Canons , not the Bilhops ,
En hujus Confilii Canones^ qnos in fuM Leges pajfim tranfcriffit Rex
Canutus, Malmsburius ^theldredo Regi ^ non Epifcopis^ tribnit.
Circa An. And the Peers of this Realm per Synodum Landavenfem were un-
5<5o. excommunicable, niji pritts confulto Rege^ attt ejtts Fr£cepto. Which
is a plain demonftration, that the Kings of England Anciently had
the Supremacy and fuperintendent Ecclefiaftical Power and Jurif-
diction inherent in themfelves exclufively to all other, either home
or foreign powers whatever.
(9.) It is by good Authority aflerted. That the King as Supreme^
is himfelf inftead of the whole Law, yea , that he is the Law ic
felf, and the onely chief interpreter thereof, as in whofe Breaft re-
fides the whole knowledge of the fame , and that his Majefty by
communicating his Authority to his Judge to expound the Laws,
doth not thereby abdicate the fame from himfelf, but that he may
afllime it again unto him, when and as oft as he pleafes. Dr. Ridl.
View^ p. 2. c. I. Se^.q. Confonant whereunto is that which 5or^//«;»
hath, Principum PUcita Legis habsnt vigor em ^ & eatenus vim Legis
ebtinebmt^ quatenns fnerint cnm honefiate conjnnBa. Borel. de JUtag-
gifi. EdiH. 1. 1. c. 4. & Roland, a Val.Conf. ^i.ntt. 54. vo. 2. And Sna-
re z, tells us. That Pt incept eft Lex viva^ & reipfa praciptt^ ut Ltx
per fcripturam. Of which opinion is Alexander^ Imola^ and many o-
thers. Snar. Alleg. 9. w«. 13. The grant of Difpenfations is a peculiar
andvery confiderable part of Ecclefiaftical I urifdidion, the which is
eminently in the Crown, and by the Stat, of 25 //. 8. the Ai^h-
bimop
Of the Kings Supremacy,
bifliop of Canterbury may grant Difpenfations : jirchiepfcofus fojjit
difpenfare contra Statutunt Provinciate per fe €ditum\ Et qui potefi
jtts condere , potejt illud to/iere, Linw. de Cler. ConJH. c, 2. gl. «/f .
Eictr. de EleU:. c. Significafti^ &c. Jntonuit. And in another place,
Epifcoptu in quihufdam cajibui difpenfare potefi contra Canones. Confi,
Otho. de Cler. gl. ver. Aieritii.
(10.) The Laws and Statutes of this Realm have been tender of
the King's Supremacy ever fmce the Foreign power over the State
Ecclefiaftical was aboliflied^ in the Statute of 13 Car.z. cap. 12.
there is a Provifo^ That nothing in the faid Ad ihali extend to a-
bridge or diminifh the King's Majefty's Supremacy in Ecclefiaftical
matters and affairs. And in the Stat, of 22 Car. 2. cap. i . there is a
Provifo^ That not any thing therein contained ftiail extend to in-
validate or avoid his Majefties Supremacy in Ecclefiaftical affairs >
but that his Majefty, his Heirs and SuccefTours, may from time to
time, and at all times hereafter, exercifeand enjoy all Powers and
Authority in Ecclefiaftical affairs, as fully and amply as any of. his
Predeceilburs have or might have done.
(11.) As no Convocations for Ecclefiaftical Conftitutions, or for
corredion or reformation of Abufes in the Church, can be con-
ven'd without his Majefty's Writ for that end and purpofe : fo be-
ing conven'd, no Canons or Conftitutions that Ihall then be agreed
on, can have any effed in Law, or be in force to oblige any of his
Majefty's Subjeds untill his confent thereunto be firft had and ob-
tained, and untill they fhall have the power of Ecclefiaftical Laws v
by being ratified and confirmed by the fupreme Authority. There-
fore the Archbifhop of Canterbury ms^ not hold a Council for his Ntver ufed ^
Province without the King's leave ; for when fuch Council was held he held but
by Hubert Archbifliop of Canterbury ^"it was prohibited by f r>;^ J^y Soyercign
Peter J Chief Juftice, for that he had not the King's Liccnfe therein, ^/^"^JJ""'^'^'
but he would not obey ">. And 13 £.3. I^ot. Pari. M. 1. thciQVf3kSm speed s-^S-,
a Writ for a Convocation of the Clergy of the Province of Ciw^*^- 12.
bury and. P/iuls\ and another for the other of Torl^^ vtd. Stat. 2^,
H.S. c. 19. where the Clergy of t'ngland acknowledge that the
Convocations of the fame Clergy are, and always have been and
ought to be aflembled onely by the King's Writ. The Convocation Roll. Abridgo
ir> under the power and authority of the King. 2 1 £. 3. 45. b. v^rb. FmoiA-..
(12.) After the Reign of King fi. 8. this Supremacy in the "^^' '^'^^ *^'^'
Crown was fignally exeicifed by King Ed. 6. ftyiing himfeli Su-
preme Head (under Chrtfi) of the Church of Engla?id and Ire-
land^ in the Preface of his InjwftHons^ given as well to all the Clergy/
as Laity of this Realm-, the Clofe whereof is as followcth, viz^.
All which (ingular InjunSitons the King\s Majefly mniflreth unto his
Clergy and their SncceffourSf and to all. hi) hving Sukietis ;. liraidy
charging
8 Of the Kings Supremacy.
charging and commanding them to ohferve and keep the fame^ ufon pain
of Deprivation^ Setjueftration of Fruits or Benefices^ Sufpenjion^ Excom^
munication^ and fuch other Coercion^ as to Ordinaries or other Sy having
Ecclefiafiical jurifdi^ion, whom his Majefiy hath appointed for the due
execution tf the fame^ fhall be feen convenient: Charging and comman-
Vid. the In- ding them to fee thefe Injundions obferved and kept of all perfons^ being
junftions in under their jurifdiEHon^ Oi they will anfwer to his Majefiy for the con-
Bifhop Spar- ^^^^y .^ ^^^^ /,^ Majefiy s phafure is , That every J^ttjfice of Peace
ofArdcIes^* (^^^^^ required) [hall a(fijl the Ordinaries and every of them for the
due execution of the faid Injundions.
(13.) The Three firft Articles to be enquired of at the Vifitations
withhi the Province of Canterbury in the fecond year of the Reign
of the faid King Bdmard the Sixth, were as followeth, 'Viz.
(1.) Whether Parfons, Vicars and Curates, andevery of them have
purely and fincerely, without colour or diffimulation, four times
in the year at the leaft, preached againft the ufurped Power, pre-
tended , Authority and Jurifdidion of the Bifhop of Rome ?
(2.) Whether they have preached and declared likewife four times
inthe year at leaft, that the King's Majefty's power, authority and
preheminence, within his Realms and Dominions, is the higheft
power under God? (3.) Whether any perfon hath by writing,
cyphering, preaching or teaching, deed or aft obftinately holden,
and ftand with to extoll, fet forth, maintain or defend the authori-
ty, jurifdiftion or power of the Bifhop of Rome^ or of his See here-
tofore claimed and ufurped, or by any pretence obftinately or mali-
Bif^iop S'/Jdr- cioufly invented any thing for the extolling of the fame, or any
roiv's Colled, part thereof? Likewife by the ArtkUs of 'Religion ^ agreed on
ubifup.p,29. by the Convocation held at London^ and publifhed An. 1553. by
the Authority of King Ed. 6. it is declared. That the King of En-
gland, i^ fupreme Head in Earth next under Chrifi of the Church of En-
gland, &c. and that the Bijhop of Rome hath no jurifdt^ion in this
Art. 37. Realm. The like you have in the Articles of Religion agreed on
by the Archbifhops and Bifhops of both Provinces, and the whole
Clergy in the Convocation held in London ^ An. 1562. and pub-
lifhed by the Authority of Queen EUz^abeth. That the jQjieen'^s
Majejly hath the chief Power in this Realm of England , and other
her lominions., unto whom the chief Government of all Efiates of this
Realm , whether they be Eccltfiaji'ical or Civil , in all Caufes doth ap-
pertain^ and is not^ nor ought to be fubjeSi to any foreign jurifditlion^
Which Articles ( being the Articles of the Church of England)
were afterwards ratified and confirmed by his M:^jf.fty, King
CHARLES I. of ever blefTed Memory, by his Royal Dsclaration
thereunto prefixed, in which Declaration you have as followeth,
-viz. That we are fupreme Covernour of the Church of England, and
that
Of the Kings Supremacy.
that if (irnj difference rife about the exurnal Peltcy, concerning the In^
junBiOfis, Camvs^ or other Confiitutions vohatfeever thereto belongings
the Clergy in their Convocations to order and fettle them^ having flrfl
obt 'dined leave under Our Broad Seal fo to doe : and We approving their
faid Ordinances and Conjittutions , provided that none be made con-
trary to the Laws and Cufionies of the Land. Likewife in the firft of
theaforefaid Injunctions of King Ed. 6, as alfo in the firft of the In-
jm^ions given by Q^ Eliz.abeth , concerning both the Clergy and
Laity of this Realm, publilhed j4n. 1 559. being th€ firft year of iier
Heign, it is enjoy ned, that all Deans, Archdeacons, Parfons, Vi-
cars, and all other Ecclefiaftical perfons, ftiall faithfully keep and
obfcrve, &c. all and lingular Laws and Statutes made for the refto-
ringto the Crown, the ancient jurifdidtion over the State Ecclefia-
ftical, and abolifliiiij^ of all foreign power repugnant to the fame,c^c.
By the Statute of 2 5 //. 8.c. 19. Appeals to /^ow^ are prohibited •, and
it is ordained, that in default of Juftice in any of the Courts of the
Archbilhops of this Realm, it Ihali be lawfull to appeal to the King
in his Court of Chancery., and thereupon a CommifTion fhall be gran-
ted, &c. And by a Provtfo towards the end of that Statute an Appeal is
given to the King in C^</«c^r^ upon Sentences in places exempt, in
the fame manner as was before ufed to the See of Rome. And as by
the faid Statute there maybe an Appeal to the King in Chancery .^y'l^- Roll. Ah.
when the Suit is in the Archbifhops Court, or fome Peculiar exempt : X^""* J'f^^roga-
foin fome cafes the Appeal may be to the King generally as he is^q'^^z.
fupreme Head of all Ecclefiaftical jurifdidion within the Realm ^ for
by the Statutes made in the time of King Hen.%. the Crown was
onely remitted and reftored to its ancient jurifdidion ^ which had
been ufurped by the Biiliop of Rome: 3 3 Ed. 3. Fitz,. Md del Roy 103,
Reges facro oleo nnEli Sptritualis jurifdiCtionis funt capaces. Rex eft
mixta perfona cum Sacerdote. Et caufa fpiritualis commit ti potefi Prin^
dpi Laico. Caffan. in Catal. glo. mund. p. 5. Confid. 24. The King
of England &c. is Perfona facra & mixta cum Sacerdote^ and at *his
Coronation, by a folemn Confecration and Undion becomes a Spi-
ritual perfon, Sacred and Ecclefiaftical, and then hath tarn Vefiem
Dalmaticam , as an emblem of his Royal Priefthood , ^uam Coronam
Regni in refpetfl of the Regal power in Temporals, and is fupreme
Governour in all Caufes and over all Perfons, as well Ecclefiaftical
as Civil. The King is fupreme Ordinary by the ancient Common
IjaiVi oi England , before the Statute of 24/7. 8. c. 12, for a Refigna-
tion might be made to hira^i he might malse a Grant oi a Church «i9El4o.8.
to a man to hold to his own proper ufe •, ^ he might not onely '' 7 E. 5.
exempt any Ecclefiallical perfon out of the jurifdidion of the Or- f'^'i^'^"^!'
dinary, ^but alfo give him Epifcopal jurifdidion :, be might pre- g^'p. ^^
fent to free Chapels (in default of the Dean) by lapfe, and that as •: i h. 7. 23.
• Ordi.
10
Of the Kings Supremacy.
Ordinary, and in refpeit of his Supreme Ecclefiaftical Jurifdidion •,
< 27E2 84.^ he might difpenfe with one not lawfully born, to be a Prieft,
F.N.B.34.f.e albeit the Ecclefiaftical Laws allowed within this Realm do
'n H.7. 12. prohibit it •, but the reafon is, for that it is not Malum in fe^ but
vJy^'i;. Malum vrohibitHm. In a word. All that the Pope was wont to doe
vonaMt.i.hi fuch cafes within this Realm, as Provifions, f Appeals to ^<;;«^
vid.Star.2$g holding Plea of Spiritual things thence arifing S Excom-
E.3. De ^^0- munications by his Bulls % and the like, were no other than U-
f\\dvxt- furpations and Encroachments on the Dignity and Prerogative
amble of the Royal. ^
Stac.of24H. (14.) In the Reign of Kmg //.8. An. 1539- the Abbats oiCd-
8. c. 12. chefter^ Readings and GUfionbftry, were condemned and executed un-
fm^r'^' ^ der colour (fo the Authour exprefTes it) of denying the King's Su-
« 20 AffV' premacy -, and their rich Abbies feized en, as Confifcations to the
J 9. ' ufe of the King ^ : But when the A(5t of Supremacy came to be debated
•■ Dr. Heylin'i {^iht time of Qu^en Elizabeth^ it feemed a thing ftrange in Nature
Hift.Ecd.Re-gj^^ Polity, That a Woman fhould be declared to be the fupreme
tflaurat.p.io.j^^^ on Earth of the Church o( England; but the Reformed par-
ty not fo much contending about Words and Phrafes, as aiming to
oult the Pope of all authority within thefe Uominions, fixed the
fupreme power over all Perfons and Eftates, of what rank foever,
in the Crown Imperial, not by the Name oi Supreme Head^ but
tantamoHnt^ of the Supreme Governefs. In Queen Marys time there
was an Ad of Parliament made, declaring, That the Kegal power
WM in the Queens Majefly as fully at it had been in any of her Prede-
€effours. In the body whereof it is exprefled and declared. That the
Law of this Realm is^ and ever hath been, and ought to be underfiood^
That the Kingly or Regal Office of the Realm^ and all Dignities, Prero-
gatives Royal^ Power, Preheminences^ Privileges^ Authorities and Ju-
rifdiGions thereunto annexed, united or belonging, being invefied either
in Male or Female, are, be, and ought to be, as fully, wholly.^ abfolutely
^nd entirely deemed, adjudged^ accepted, invefied and taken in the one
AS in the oihtr. So that what foever Statute or Law doth limit or ap-
point, that the King of this Realm may^ or fljall have^ execute and doe^
any thing as King, &c. the fame the Queen {being Supreme Gover-
nefs Poffeffor and Inheritor to the Imperial Crown of this Realm) may
hy the fame power have and execute^ to all intents , confiruBions and
purpofes, without doubt, ambiguity, ejueflion or fcruple , any Cuflome^
Vfe or any other thing to the contrary notwithfianding. By the tenour
of which Adt made in Queen Marys Reign is granted to Queen £//-
zabeth as much authority in all the Church- concernments, as had
been exercifed and enjoyed by K. H. 8. and K. Ed. 6. according to
any Aft or Ads of Parliament in their feveral times. Which Ads of
Parliament (as our learned Lawyers on thefe occafions have declared)
were
Of the King's Supremacy,
1 1
wrere not to be confidered as [ntrodH^dry of a new power , which
was not in the Crown before, but onely Declaratory of an old, which
naturally belonged to all Chriftian Princes, and amongft others to
the Kings and Queens of the Realm of England. And whereas fome
Seditious perfons had difperfed a rumour, that by the Ad for recog-
nizing the Queen's Supremacy, there was fomething farther afcri-
bed unto the Queen, her Heirs and SuccelTours, Quiz..) a power of
adminiftring Divine Service in the Church ^ which neither by any
equity or true fenfe of the words could from thence be gathered
fhe thereupon makes a Declaration to all her Subjects, That nothinl
WM^ or could be meant or mended by the [aid A^, than Wat acknowledged
to be dne to King U.S. and King Ed. 6, And farther declared, That
/he neither doth nor will challenge any other Authority by the fame., than
was challenged and lately ufed by the f aid Two Kings ^ and was of An-
cient time due unto the Imperial Crown of this Realm^ that is, under God
to have the Sovereignty and Rule over all perfons born within her Realms
and Dominions ^ of what efiate {either Ecclefiaflical or Temporal) foe-
ver they be^ fo as no other Foreign Power jJjall^ or ought to have any
Superiority over them. Which Declaration publilhed in the Queen's
hijunaions^ An. 1559. not giving that general fatisfadionto that
groundiefs Cavil, as was expedled and intended ^ the Bifhops and
Clergy in- their Convocation of the year 1562. by the Queen's Au-
thority and Confent, declared more plainly, viz.. That they aave
not to their Prince fs by virtue of the faid A^ or otherwife, either the
mtmjlrmg of God's Word or ''Ocraments:, but that onely Prerogative
which they fm to have been given always to all godly Princes tn holy
Scripture by God himfelf-, that is to fay, that they jhould Rule all
Eftates and Degrees committed to their charge by God, whether they be
Eccle/iaftical or Temporal, and refirain with the Civil Sword the fiub-
born and evil doers. And laftly, to conclude this tender point
7 here is in the faid Ad, for the better exercifing and enjoying of
the Jurifdivftion thus recognized to the Crown, an Oath (as afore-
faid) for the acknowledgment and defence of this Supremacy not
onely in the Queen but alfo her Heirs and SucceiTours. Likewife
a power given to the Queen, her Heirs and Succeilburs, by Letters
Patents under the Great Seal of England, To Afign and Autho^
rtz.e^ &:c. as flje and they Jljall think fit , fuch Perfons being natural
born SubjeBs, to exercife, ufe and occupy under her and them, all man-
ner of jurifdtBions , Privileges and Prehemincncies in any wife
touching or concerning any Spiritual or Ecclefafiical Jurifdiliton with-
tn the Realms of England or Ireland, or any other her Htgneffes Domi-
nions or Countries , and tovifit, reform, reprefs , order, correB and
amend all fuch Err our s , Herefies , Schifms , Abufes , Offences, Con-
tempts and Enormities whatfoever, which by any manner of Spiritual or
• O Eccle^
12
Of Archbifhops.
Ecclepaflical Tower, AHthorky or JurifdiBion^ or can or may lawfully
be refer medy ordered , redrejfed , corrected , rejirained , or amended to
Hatlems Dr. the pleafnre of Almighty Cod, &c. This was the Foundation of the
Heyiin, ubi High-Commiffion Court, and from hence ifliied that Commiffion, by
^M h 280, which the Queens Minifters proceeded in their Vifitation , in the
a8i, 282. p|j.£|. Year of Her Majefty's Reign.
CHAP. II.
Of Archbifhops.
1. A Defcription of that Dignity here in England ; the Antiqmty, Tre*
cedency^ Privileges and Style of the Archbijhop 0/ Canterbury j with
the PrecinBs of that See.
2. The Antiquity y Precedency and Style of the Archbijhop of York,
with the PrecinSts of that See.
3. What difference between Archbifhop and Metropolitan j and why
called Metropolitan.
4. Jhree Archbifhops in England and Wales, anciently.
5. The viciffttudes of the Chriftian Religion anciently in this Jp,and of
Great Britain.
6. How the Third Archbijhop came to be loft.
7. The great Antiquity of an Archbijhop in London.
8. The Original of the Style, Primate and Metropolitan.
9. What the diference anciently between the two Archbijhoprickt of CaHr
terbury and York •, certain Privileges of the latter.
10. Whether an Archbijhop may call Cafes to his own cognizance, no-
lente Ordinario.
ti. In what Cafe the Clerk is to be infiifuted by the Archbi^iop^ where the
Inferitur Ordinary hath right to collate ; alfo his power of Difpenfa-
tions.
12. A CafeM Common Law, relating to the Archbifhop' s Jurifdi^ion*
13,. Certain fpecial Privileges of the Archbifhop 0/ Canterbury.
(i.) ARCHBISHOP tab archos, Princeps, & Epifcopus ^
Bkmtur Pa- xm. S^uperintendens. J is that Spiritual Perfon Secular, who
ms propter within that Province whereof he is Archbifhop, hath next and
homresiisex- immediately under the King, Supreme Power, Authority and Ju-
kkndos. jifdiaion in all caufes and things Ecclefiaftical. Of fuch there
are onely two in England -, one of the Province o{ Canterbury ^ ftyled'
Metropolitanus & Prim as Totius Anglia ; the Other of Tork^, ftyled
Mrimas ^ Metropolitans A^fgUts. Under the two Archbiihops are
tF^entg?-
Of Archbijhops, 15
twenty fix Bifhopricks, whereof twenty two in the Province of
Canterbury , and four in the Province of Yorkj fo that befides the
two Archbifhops , there are twenty four Bifhops. The Chriflian
Religion in England took root firft in the See of Canterbury ^ Saint
^ufltn, who firft preached the Gofpel to the one^ was the firft
Archbifhop of the other. Canterbury^ once the Royal City of the
Kings of Kent, was by King Ethelbert^ on his Converfion, beftow-
ed on Saint j4uftin the Archbifhop and his Succefiburs for ever •,
and fo the Chair thereof became originally fixed in that City of
Canterbury -J Cantuarienfes y^rchiepifcopi ^ Dorovernenfes antiquitus
diUi funt : quia totius Anglicans Ecclejia Primates & Metropolita- ^^t. Brit, in
ni fuerunt. The Archbifhop whereof, being ftyled Frimate and^^'"'
Metropolitan of all England^ is the firft Peer of the Realm., and hath
Precedency , nor onely before all the Clergy of the Kingdom of
England , but alfo ( next and immediately after the Bloud Royal)
before all the Nobility of the Realm. Sr. Edward Cof^e fays more,
and lets us to underftand. That in ancient time they had great Pre-
cedency, even before the Brother of the King * ^ as appears by the « co. Infl.
Parliament Roll of 18 £. i. and many others, which continued un- par. 4. cap.
till it was altered by Ordinance in Parliament in the Reign of ^. 6. 77' i" fio*
as appears by a Roll of Parliament of that King's Reign , entred
in the back of the Parliament Roll. The Precedency in Parlia-
ment and other places of Council at this day is. That the Two
Archbifhops have the Precedency of all the Lords Temporal ^ and
every other Bifhop in refpedt of his Barony, hath place of all the
Barons of the Realm, and under the Eftate of Vifcount and other
Superiour Dignities ^ And at this day, in all A<as, Ordinances and
Judgments, &c. of Parliament, it is faid the Lords Spiritual and
Temporal. The Bifhops (among themfelves) have this Preceden-
cy, (i.) The Bifhop of London.,' {i.) The Bifhop of Vurefme,
(3.) The Bifhop of Winchefter ^. The Archbifhop of Canterbury.^ fc Qo. ibid.
as he hath the Precedency of all the Nobility , fo alfo of all the
great Officers of State. He writes himfelf i)/i;/«<« Providentia., where-
as other Bifliops onely ufe Divina Permijfione. ThQ Coronation of He is ftyled
the Kings of England belongs to the Archbifhop of Canterbury., and in the King's
it hath been formerly refolved , that wherefoever the Court was, ^"" ^^^^^^'
the King and Queen were Speciales ^ Domeftici Parochiani Domini ^^^ Trati!t^*
Archiepifcopi. He had alfo heretofore this Privilege of fpecial Anhiepifcopo
remark , That fuch as held Lands of him , were liable for IVard- Cantuarienji.
jhip to him, and to compound with him for the fame, albeit they d Dr-ffeylin's
held other Lands in Chief of our Sovereign Lord the King <i. All Help to Hift.
the Bifhopricks in England, (except Durefme^ Carlifle., Chefter., and verb. Canter-
tht Jde of Man, which are of the Province of Tork^) are within e^'^* , n
the Province of Canterbury ^ The Archbifhop whereof hath alfo par."]}.". 74.
• 02a pecu-
'4
Of Archbijhops,
a peculiar ]urifdidlion in thirteen parifhes within the City of Lo»-
don^ and in other Diocefes, &c. Having aJfo an Ancient Privi-
lege, That wherever any Manors or Advovv'fons do belong to his
See, they forthwith become exempt from the Ordinary, and are re-
puted P^c«//^rj, and of his Diocefe of C4«'^?^«r^. If you confider
Canterbury as the Seat of the Metropolitan^ it hath under it twenty
one Suffragan Biihops , whereof feventeen in England^ and four in
IVdles J but if you confider it as the Seat of a Diocefan, fo it compre-
hends onely fome part of Kent^ 'viz.. 257 Pariflies (the refjdue be-
ing in the Diocefe of Rochejler) together with fome ot'^er Piriflies
difperfedly fituate in feveral Diocefes : it being {d. atorefiid) an
Ancient Privilege of this See, that the places where me Arch-
bifliop hath any Manors or Advowfons, are thereby exempted
from the Ordinary , and are become peculiars of th - Diocefe of
Canterbury , properly belonging tc the Jurifdidbn of the Arch-
bilhop or Canterbury^ whofc provincial Vean is the Bifhop of
London^ whofe Chance/lour is the BiHiop of Wincheftcr^ whofe
Vice-Chancellour anciently was the Bilhop of Lincoln^ whofe fre-
eentor the Bifhop of Salisbury ^ whofe Chaplain the Bidiop of IVor-
eefter^ and the Bilhop of Kochefler (when time was) carried the
Croff before him. Lind. confr. de Fcem^ ^L ibid, c. 1. ver. tan-
quam. •
(2.) The Metropolitan See of r^rj^had its original at the firfl:
reception of the Gofpel in England^ when King Lucim eftablilhed
Samyfon the firft Archbilhop thereof: Not long after the Converfion
of the Saxons^ Vaulinm by Pope Gregory'^s appointment was made
Archbifliop thereof, An. 622. This Province of Tork. anciently
claimed and had a Metropolitan Jurifdidtion over all the Biihops
of Scotland^ whence they had their Confecration, and to which
» //fr^m. ubi they fwore Canonical Obedience f The Archbilhop of York
y Pf^ ' ftyies himfelf , Primate and Metropolitan of England , as the Arch-
bilhop of Canterbury y Primate and Metropolitan of all England, A-
bout two hundred years fince, 'viz.. An 1466. when George Nevit
was Archbilhop of Tori^, the Biihops of Scotland withdrew them-
felves from their obedience to him, and had Archbilhops of their
own. The Archbilhop of Torj^hath Precedency over all Dukes^
Qot being of the Blood Royal^ as alfo before all the Great Oncers or
f Ibid. State, except the Lord Chancellour s. Of this Province of Tork^ are
the Bilhopricks of Dure fme.^ Chefler., Carlijle.^ and the I fie of Matt.^
who writ therafelves Eboracenfes ., or Eborum. The Diocefe be-
longing to the See of York^ contains the two Counties of York and
Notingham^ and in them 581 Pariihes whereof 336 are Impro-
priations,
(3.!/ It
Of Arcbbijhops.
15
(3.) It hath been queftion'd, whether there be any difference be-
tween Archbijhop and Metropolitan j the D D. herein feem to be
divided, forae conceiving that there is fome difference between
them, others affirming that they are both one; the Canon Law
feems in a fenfe^to favour each of thefe Opinions , faying in one
place, that the Archbifhop as Prefident hath the charge and over-
fight of the Metropolitans and other Bifhops, 21. Difl Cleros. In
another place, that Arciibifliop and Metropolitan are but one and
the fame indeed and in truth, although they differ in name. U^il-
hel. in Clem. ult. de Prwileg. verb, Archiepifcopo verf fin. Aietrop-
litanm & jirchiepifcofM idem fiint. Sed Adetropolitanm nomen trahit
a ntimcro Eccleftarum ., viz. a{_metro~\ men fur a ^ & Lp/^H Civi-
tas.^ Otho. glo. in verb. Archiepifcopus, De Offic. Archiepijc. He
is called Archiepifcopus ^ quafi Princeps Epifcopomm^ in refpedt of the.
Other Bifhops whereof he is chief: and MetropoUtanus in refpedl
of the number of the Cities or Cathedral Churches where the Bi-
fhopricks ^re. Lind. ubi JMpr. gl. ib. ver. Metropolitanum. For
the word [Civitas~] doth fignifie with us, as it doth in other King-
doms, fuch a Town Corporate as hath a Bifliop and a Cathedral
Church. Yet Crompton, in his JurifdiUions^ in his Computation of
our Cities, doth omit £/y, though it hath a Bifhop and a Cathe-
dral Church. Thus Weflminfter is called a City ^ and according-
ly there is mention made of a Bifhop of IVejiminji-fr in a StatuteSt. 35. £/,
made during the Reign of King Henry 8. But by Letters Patents, '^^ ^'
dated 21 May.^ lEHz,. (iri purfuance of an Ad of Parliament ofSc. 35/^,8.
I EHz,. not printed) the Revenues of that late Monaftery were vc- c* lo-
fted in the Dean and Chapter of the Collegiate Church of M^'efi-
minfier, which hath caufed Errours in the Pleadings of fome Cafes
by ftyling it the Cathedral., for Collegiate Church of IVc/lminfier.
CaJ[anatt4 ^ who wrote as well Ve Gloria Mnndi in general, as of^l//^"- de
the Cultomes of Burgundy in ]3articular, faith. That Vrance hath n°"^"^y
within its Territories 104 Cities, and gives this Reafon , becaufe p3^gf ," °
there are fo many Seats of Archbifhops and Bifliops. Yet Sir Edvo. a. Ut.' fo.
€oI{e obferves Cambridge to be a City by ancient Record, although it 109. b.
does not evidently appear that it ever was an Epifcopal See: And Jj'''*^^'?-^^'
in the Stat, of 11 H. 7. c. 4. it is there called the Town of Cam- '°^' **
bridge.
('4.) In England and Wales there were anciently three Provinces,
and over them three Archbifhops , whofe Archbifhpricks were
*founded above 1500 years fince^ For foon after the Converfion of
King Lucim (who began his Reign over the Britains, Anno 170.)
being prevailed with to embrace the Chriftian Faith by the perfua-
fions of Elvanta, who had been brought up at Glafienbury^ and of^Cafgr.Wi,
Medwanm.^ both Britaim^^ and therein^ confirmed by the. D\.Lanelav».
» vines
I ^ Of Archbijhops,
vines, which Elemher'ms (who became Pope Jn. 177.) fent into Bri-
■^ Malmsb, tain for that end and purpofe ^ ^ The faid King being by them bap-
tized the falfe Religion of the Druids^ witn their Idols, was foon
aboliihed, Heathen Temples purged, and then confecrated to the
fervice and worfhip of the True God, and in the place of twenty
eight Flamins were Bilhops confecrated, the three Archbifliops
whereof were founded in the three chief Cities of the then three
Provinces, ereded by the Romans^ where ArchFlamins had former-
ly been maintain'd , 'viz.. at London , the Metropolis of Britannia
Trima: at Tor\ the M.Qtxo^o\\s c>{ Maxima Cafarienfis -^ and atCa-
erlegion in Wales^ which is laid to be Caerleon upon Vsks-» former-
ly calied Ifca in Monmomh^nre^ the Metropolis or chief City of £n-
^ Leiand. in tanniaSccunda^ or under Vrbs Legionum^, Cambria ^. Gildas, anti-
Aflcrr.Attur. ^Hijfimus' inter eos, qui fide digni funt^ Britannicarum rerum fcriptor^
fo. 96. a. tradit Britannos ab ortu Evangelii Chrifiianam fufcepjfe ^fidem. Ant.
^rt/my . nt. gj.jj.^ ^yi^ ^-^^^^ ^^ jfrimnm^ Paulum ipfnm^ cum aliis Gentihus., turn
B.Godw.St. nominatim Britannis, Evanpelium nunciajfe poft priorem fuam Romae
Davids in incarcerationetn. Theodoret. /.p. de Cnrand. Gr£Cor. affeB. Origi-
Wales. nes , qni froximis fuit pofi j^pojtolos f<eculi6 , tefiatur Britanniam in
Sp. to. 79. chriftianam confentire Reltgionem, Orig. Horn. 4. in Ezech. Lu-
cius, Rex Britannia, Jn.'^ij<^. Baptiz^atHs. Ab Eieutherio, Ponti-
Jice Romano , refarmationem Angli£ petiit , Epifcop. 29. ordinavit.
Ant. Brit. fo. 4, 5, 7. Before the coming of the Saxons mio Eng-
land^ the Chriftian Briti^ins had three Archbifliops, viz.. of London,
Torj^and Caerleon in Wales. The Archiepifcopal See o{ London.,
was by the Saxons placed at Canterbury for St. Auflins fake, where
he was buried. That of Caerleon being tranflated to St. Davids.,
and after fubjeded to the See of Canterbury.
An. 302. (5.) From this time to Dtodefians Perfecution (which though
the Tenth and laft, yet the firft which the BHtains felt) Chriftia-
An. ^06. nity flouriflied in this Ifland, which by that Perfecution was almofl:
extirpated out of the I and , till Confiantine the Great wore the
An. 415. Imperial Crown, in whofe time it revived till the beginning of the
next Century, when it was infeded with the PeUjian Herefie, till
the condemnation thereof in the Council of Carthage and Mela.,
and happily fupprefled by Germanits Bifliop oi Anxirre., and by
Lupm Bilhop ot Troys mCampeigne^ who at the requell of the £»-
i Prnfp.Atmft.i^^P^ Catholicks were fent by the French Bifliops into England-^ as
Gtld. Polyd. at the fame time, and for. the fame end, Palladitu was by Pope
Buch. Hunt. Celeftine into Scotland K And now the Chrifiian Religion flou-
sJe !. r. r^^^^<^ sgain , till the time of the ufurping Tyrant Forttger^ who
c. \ 5 ■ ' after he had flain P^odinus Archbirtiop of London ">, was himfelf burnt
Pofyd.ls.sp.'m a Caftle befieged by Aurdnis A?rbrofe^ having firll furrendred
^ B. oodw. Xm, Sujfolk and NorfdK to the Infidtl Hengift^ who with his Saxons
almo^
Of Archbijhops.
17
almoft defblatcd the Land ^ infomuch that Theanus^ Bifhop of Lon-
don^ and 7 heoMcens^ Bifhop of Tork^^ were forced to liie into Corn,
wal and Wales ^ untill St. y4nftins coming hither (where he then
found onely one Archbifhop and feven Bifhops) being with forty
others as Afliftants to him, fent hither by Pope Gregory to convert
the Nation " ^ whom Ethelbert^ King in Kem^ kindly received, and " ^^^^ '• 2-
leated him Cas aforefaid) in a Manlion of Canterbury^ the Metropo- ^^^^'j
lis of his Kingdom ", and aiTigned him a place to eredt a Bilhop's Jq, ija. in
See, who afterwards fixed his Seat at Canterbury , which ever fince vk. Greg.
hath continued the Metropolis of this Kingdom : And thus St. Au. |fg- 2.
/?/», upon his entrance into England^ by the favour and bounty of ' ^^'^^^ '* '*
the faid King Ethelbert^ having fixed his Seat at Canterbury^ the Arch- * ^ ^*
bifhops thereof have, by a continual Series or Succeffion, continued An. 555.
as Metropolitans of all England.
(<5.) And whereas there were (as aforefaid) anciently three Arch-
bifhopricks in three diftind Provinces within this Kingdom,
whereof that of Caerleon ugonVsks in Wales was one, and whereof
Dubritius, in the Year 466, was Archbifiiop, who having his Seat at
Landaff^ became for his integrity Archbifhop of all Wales ^ and was
upon Refignation in his old Age fucceeded in the Archbifhoprick by An. §19.
his Difciple David^ Uncle to King Arthur v^ by whofe confent he ^ Cambd.
removed the See to Menevia, of which place he ftill retaineth t:he .^^ ^ ^^LM"
name of £/>//cfl/>«j i^(f;7^z/f«/7j, and the Town it felf thereupon called
Twy Devi^ or St. Davidr^ as taking its denomination from his Name ^
yet it afterwards fo unhappily happened, that Sampfon^ a fucceeding
Archbifhop, upon a great Plague raging in Wales^ went to Dola in
Little Britain^ and thither carried the Pall with him, whereby Saint
Davids for ever after loft the dignity of an Archbifhop. And in
the time of H. i. both that See, and the reft in J^^iles became fub-
jeO: to the Archbifhop of Canterbury^ as at this day <i. '^ Cambi>.
(7.) In the time of King Lucius ^ London had nn Archbifhop to
whofe Jurifdidion at that time the greateft part of England was
fubjeft J This Archbifhop was that Theanm forementioned , who
was the chief Founder and Builder of St. Peter''s Church in Comhilly
London^ which Was the Cathedral of his Diocefe till King Ethel- Ant q. Brit.-.,
bert built St. F^«rs Church. In this See continued the Dignity of**^^*
an Archbifhop above 180 Years \ but by reafon of the Saxon Perfe-
cution ftood void , till that ten years after the coming of St. Ju-
fiin, Melitus vi2iS confecrated Bifliop of that See, and fo4t continued'
ever after as a Bifhoprick (which in the days of King Lucius was
an Archbifhoprick, as aforefaid) till St.Aufiin in the year 598.
took on him the Title of Archbiflwp oi England^ fettling his See at.
CmtfTbury.
i8 Of Archbijhops.
(8.) Upon the abrogating of the Popes power in England by King
hi. 8. in the Seventh year of his Reign, it was concluded, that the
Archbifhop oi Canterbury ihojuld no more be ftyled the Pope's Le^ate^
but Primate and Metropolitan of all England-, at which time Tho,
Cranmer ^ Fellow of JejHs-CoWQgt in Cambridge^ who pronounced
the Divorce from Qiieen Katharine of Spain^ upon his advice given
the King to leave the Court of Rome ^ and to require the Opinions
of learned Divines, being then in Germany^ procured fuch favour
with the King, that he caufed him to be eleded to this See of C^«-
terbury ^ and was afterwards, with the then Bilhop oi Durefme^
f Ant. Bm. made Tutor to King Edward the Sixth ^
(9.) The Archbifhop of Canterbury was fuppofed to have had a
concurrent Jurifdidlion in the inferiour Diocefes within his Pro-
f Dt. James % vince-, which is not denied in the Cafe of Dr. James ^, onely it is
Cafe, there faid , That was not as he was Archbifliop , but as he was
mb. Rep. j^egatHs Natus to the Pope , as indeed fo he was before the time of
King H. 8. (as aforefaid) by whom that Power ( together with the
Pope) was abrogated, and fo it ceafed ;, which the Archbifhop of
"« Cafe rbiJ. Tork^ never had, nor ever claimed ^ , as appears in the forecited
^'■'^/JY ^^^^i where it is farther faid, That when rhere is a Controverfie
Thurftan ^^^^^^^ ^^^^ Archbifliop and a Bilhop touching jurifdiciion, or be-
Archbi/fiop o/tween other Spiritual Perfons, the King is the different Arbitra-
York, in the tor in all juriididions as well Spiritual as Temporal, and that is a
time of H. i. right of his Crown to diftribute to them, that is, to declare their
[mtrlfto'^aU^^^^^^''' Confonant to that which is aflertedina Cafe ofCommen-
^Kight ''and ^^^ ^ ^" ^"^^ ^nd Glovfr's Cafe againft the Bilbop of Coventry and
'Cufiome^rvith- Lichfield , where it is declared by the Lord Hobart Chief Juftice,
mt yrofejjing That the King hath an immediate, perfonal, originary, inherent
■^nyfubjeHion r,Q^^^ which he executes, or may execute, Authoritate Regia Su-
40 the See of ^ 7 , r n- v :i ^ -^ • r-> /- > "?- 1
Canterbury, f^^'^'^ tcclejMJttca^ as Kmg and Sovereign Governour of the C.iurch
speed ^i^Q,h.^^ England^ which is one of thofe Flowers, qui facimt Corcinam ^
" Mich. 10. which malce the Royal Crown and Diadem in force and virtue".
Co/f and'o/* '^^^^ Archbifhop of Canterbnry, as he is Primate over All England,
xer verf. Bp'. ^^^ Metropolitan , hath a Superemihency , and forae pov\'er even
of cavent. ' ovcr the Archbifhop of Tor^ •, hath (under the King) power to fum-
^nd Lichjield. mon him to a national Synod, and ArchiepifcopHs Eboracenfis ve-
M<ib. Rep. ^ire debet cum Epifcopis fuis , ad nutum ejus , & ejus Canonicis dif-
pofitionibus Obediens exifiat. Yet the Archbifhop of Tork^ had an-
ciently not onely divers Bifhopricks in the North of £«^/^W, un-
der his Province i but for a long time all the Bifhopricks of Scot-
land^ untill little more than 200 years fince, and untill Pope Six-
tus the Fourth^ An. 1470. created the Bifbop of St. Andrews Arch-
bifhop and Metropolitan of all Scotland, He was alfo Legatus Na-
tus, and had the Legamine Office and Authority annexed to that
Aroji-
Of Arcbhifhops,
ArchbiOioprick •, he hath the honour to Crown the Queen and to
be her perpetual Chaplain : Of the forementioned Diocefes of his
Province Che Bilhop of VHrham hath a peculiar jurifdidion and
in many things is wholly exempt from the jurifdidion of the Arch-
biliiopot York^, who hath notwithftanding divers Privileges within
his Provmce ; which the Archbilhop of CmtcrbHry hath within
his own Province. ^
(lo.) The Archbifhop is the Ordinary of the whole Province-
yet It IS clear. That by the Canon Law he may not, zs Metropolitan]
exercife his jurifdidion over the Sub^eds of his Suffragan Bilhops-
butincertam Cafes fpecially allowed in the Law, whertor Hof^ie^fh
enumerates one and twenty -. The jurifdidion of the Archbi- '^ ^U^nf.
^"°P ^5 0P5"e^ Sometimes by himfelf, mlente Ordmario, as in the Cafe ^^P- ^'^fi'^^,.
■ .u'^'5^^"°"' l"^ fometimes by the party, in default of jufticei^'^'^^"^
in the Ordinary as by Appeal or Nullmes. Again, it may fometimes "'"'
be opened by the Ordinary himfelf, without the party or Archbi-
lhop, as where the Ordinary fends the Caufe to the Archbilhop- for
although the C^«o« Law reftrains the Archbifhop to call Caufes
from the Ordinary, noleme Or dinar io, fave in the faid 2 1 Cafes - vet
the Law left it in the ablolute power of the Ordinary, to fend the vid. Cafe
Cau^ to the ArchbiOiop abfolutely at his will, without affiffnins ^'"'^ verf.
any fpecial reafon ^ and the ordinary may con fu It with the Arch-I''"'"' ^'^'
biihop at his pleafure without limitation. Notwithftanding which ^^'
and albeit the Archbilliop be Judge of the whole Provinc?, tamen
J^rijdi^to JHA eft fignata, & non aperitnr nifi ex caufis. Nor is the
Subjed hereby to be put to any fuch trouble as is a grievance 1 and
therefore the Law provides, that Nemimm oportet exire de Pro^
vwcta ad Provwciam, vel de Civitate ad Civitatem, nifi ad Relationem
jHdiCii^ tta lit j45lor forum Rei fequatur y . y B Id C f
(II.) .If the Archbifhop yifit his inferiour Bifliop, and inhibit 5- (^^.'cpen.'
him during the Vifitation, if the Bifliop hach a title to Collate toa ^* ^>'"'^-
Benefice mthin his Diocefe by reafon of Lapfe, yet he cannot in- ^°"'-
Ititu.e ins Clerk -, but he ought to be prefented to the Archbifliop
andheis tomftitute him, by reafon that during the inhibition his
^•7x7 °,v?""?*^A''" '' fufpended K It was a point on a fpe- z Trin „
cial Verdid in the County of Lincoln, and the avUians who argied Car BR V
thereon feeped to agree therein^ but the Cafe was argued upon ^^'- ^"^T^" &
another point, and that was not refolved ^ Likewife by the'^-'""*
Statute of 25 //. 8. c. 21. the Archbifliop of CanterblryhzthllT''-!''
power to give Faculnes ^ndV^fpenfatrons, whereby he can%s t0 445 &l7'
PW/^j; fufficientJy now difpenfe de jnre, as anciently the Pope aI-. verb,
did m this Realm de fa^o, before the making of that Statute ^'''^/^''^w«^
whereby It is enaded, That all Licenfes and Difpenfations (notre- !iV^-P'^57,
pug^nant to the Law of God) which heretofore were fued for Jn^^'^'^'S^?.
Of Archbijhops.
-^^;^^^o^.Rom, fhouldbe her^^fteTgranted by the Archbiihop
rii T si {re Conftiiinions and Canons Ecclefiaftical, £^^^. i6o3
to o*i h is ordaincd/That no Dean of the Arches, nor Official
- of "he Archbifliop s Confiftory, fhall origma ly cite or fummon any
perfbn whkh dwelleth not within the particular Diocefe or peculiar
Tf he faid Archbiihop, &c. without the Licence of the Diocefan
firft had and obtained in that behalf, other than m fach particular
Cafes onely, as are exprefly excepted and referved in and by theSta-
nife of i /// 8. €. o. on pain of fufpenfion for three months. In
Ihe Cafe of Lv«c^/againft Porter, for a Prohibition upon the faid
S^atSe of 23h!8.c^ it was declared by the aviUa.s in Court,
Tha thev ufed to cite any Inhabitant of and m Lcr^don to appear
Jnd niake^Anfwer in the Archbiihop oiCa.terburfs high Court of
Arches originally: And Dr. .l/.r^F faid, It had been fo ufed for the
foace of 427 years before the making of the Statute •, and upon
complaint thereof made to the Pope, the Anfwer was. That any
man mieht be cited to the Arches our of any Diocefe in England.
Alfo That the Archbiihop may hold his Confiftory m any Diocefe
wi hin his Jurifdidion and Province: That the Archbiihop hath
concurrent Jurifdidion in the Diocefe of every Bilhop, as well as
ihe Archdeacon : And, That the Archbiihop ofCanterbs^y prefcribes
to hold Plea of aU perfons in England, But as to his power of ha^.
vbg a Confiftory in the Diocefe'of every Bilhop, this was m this
• Cafl denied, but onely where he was the Pope s Leg^c, whereof
there were three forts: (i.) Legates a Latere, ^"^ thefe were CW,-
nals, which were fenti L.r.r. from the Pope. (2^ A Legate born,
and thefe were the Archbilhops of C^;^ffrW Tork^nd Memz., &c
fq •) A L.m^ given, and thefe have Authority by fpecial Coramif-
^r. 1 flon from the Pope ^. Likewife in the Cafe of Jones againft Boyer
L^;^."!arcC B ^was by Dr. Martyn That the Archbiihop hath
unchevt,(. ordinary Jurifdidion in all the Diocefes of his Province, and that
^°'^^''* T thisisthecaufe thathe may Vifit^ ^ , , , r^ •
«Trin.9.Ia. , s ^. Archbilhop oi Canterbury Anciently had Primacy as
?. •^;r well ovVall Mand as ^England, from wliom the /n/I, Bilhops re-
Sro«./.ibid. ceived their Confecration, for /r./W had no o her Archbiihop un-
til the vear 11^2. For which reafon it was declared in the time of
the Two firft Narman Kings, That Canterhmy was the Metropoli-
tan Church oi England, Scotland and Ireland and the IQes adjacent:
the Archbiihop of C.«f.ri.«r> was therefore fometimesftyed a
^Patriarcha VMriarch\ and OrhisBritannki Fomfex , infomuch that Matters.
wa^ ^ chief recorded in Ecclefiaftical Affairs did run thus, w^. J^no Ponttfica^^
Of Arcbhijhops.
21
tus Noflrt pnmo, fecundo, &c. He was alfo Legatus Natm, that is,
• u \ P^rP^f^al Legantine power annextto his Archbifhoprick
mgh a thoufand years fince. And at General Councils he had the
Precedency of all other Archbilhops abroad, and at home he had
fome fpecial mark o^ Royalty, as to be the Patron of the Bifhoprick
(as he was of Rocheflcrj to coin Money, to make Kniehts and to
have the Wardftips of all thofe who held Lands of S^lleDoll
mi, although they held/« Capite other Lands of the Kinss as was
formerly hinted. He is faid to be Imhroned, when he fs invefted
m the Archbifhoprick. And by the Stat, of 25' // 8 he hat^ power
to gt^xilLtcenfes and Difpenfatiom in all Cafes heretofore fued for
in the Court of Rome, not repugnant to the Law of God or the
King s Prerogative : As alfo, to allow a Clerk to hold a Benefice in
Commefidam or mTrufi ; to allow a Clerk rightly qualified to hold
Two Benefices with Cure of Souls , to allow a Beneficed Clerk, for
fome certain caufes to be non^refidem for fome time, and to W-
fenfe m feveral other Cafes prohibited by the Letter of the Canon
^Lr.!^'^'""'^^ the Archbifhop of Canterbury Confecrates oth r
bifiiops^ confirms the Eledtion of Bifhops within his Province-
Sire'//.]°''"'' v^^M^^^ '''°'^.^°S to the King s Writ, to him ever'
W^^XlL^^'^i^''^''^''''''' the Synods and Convocations ; he
Vifits the whole Province-, appoints a G«^.^.^;; of the Spirimaltls
during the vacancy of any Bifhoprick within his Province,^ whereby
all the Epifcopal Ecclefiaftical Rights of that Diocefe for that time
belong to him, all Ecclefiaftical Jurifdiftions, as VifitatLns! InS-
tutions, 6^r. He may retam and qualifie Eight Chaplains which is
more by Two than any Duke is allowed by Statute to 'doe and
hath power to hold divers Courts oiJudkaLe, for thedecifionof
Controverfies pertaining to Ecclefiaftical cognizance.
P ^ CHAP.
22
CHAP. III.
Of Bifhops and Ordinaries.
1. Biiliop, UHoy fo called •, Not above One to he in one Diocefe,
2. Why called Ordinary ;, and what the Pallium Epifcopale is.
3. Bi/hoprtcks originally Donative ^ Kings of England the Founders
thereof.
4. 21?^ manner of EleUion of Bifltops ^ their Confirmation and Cenfe-
cration.
5. Their Seals of 0 flee •, in what cafes they may ufe their own Seals.
6. What follows upon EleBion, to make- them Bijlwps complete-^ the grant
of their Temporalties.
7. The Conged'' Eflire, and what follows thereupon.
8. Bifhopricks were Donative, till the time of King John.
9. What the Intereft and Authority is^ in his feveral capacities.
10. Epifcopal Authority derived from the Croicn.
1 1 . The Vfe and Office of Suffragan Bi(l]ops.
1 2. Whether a Bishop may give Inftitution out of his own proper Viocefc^.
and under other Seal than in his own Seal of Office.
13. Several things incident to a Bijhop qua talis.
J 4, Ordinary, what properly he w, and why fo called*
15. In what cafes the Ordtnary'^s JurifdiBion is not merely Local,
16. The Ordinary'' s power de jure Patronatus.
17. Whether the Ordinary may cite a man out of his own Viofefe 5 Alfo
his Right ad Synodaiia.
18. The Ordinary s power of Vifitation.
19. The Dignity and true Precedency ef the Bip.ops inEnghnd.
20. Temporal JurifdiBion anciently exercifed by Bt\iiops in this Realm -^
The Statute of 17 Car. i. againji it., Repealed -^ and they Refiorcd
to it by the Stat, of 1 3 Car. 2. oi formerly.
21. The AEi -made in the Reign of Ed. 6. concerning the EleBion of
Bijlwps \ the endeavours thereby to take away Epifcopal JurifdiBion ;
the Nomination of all Bi(hops wof anciently [vie m the King.
Bifbop,y«;;)a- 22. The Bifljops of London are Deans of the Epifcopal College,
fed from the ^^^ j. q^^^ ^^ Common Law., touching a Leafe made by one Bif.cp
Eiceop, and during the life of another of the fame Diocefe in Ireland.
that from the
Greek 'E^ (l.)!]) IS HOP, Epifcopui ., from cW, fupra ., and 'Tkott^v .^ inten-.
<r)fOT©-,Spe- Jj^ ^^^^^ 2j^ Overfeer or Superintendent.^ fo called from that
SuperinKn- watchfulnefs , care, charge, and faitbfulnefs, which hy his Place
dens. and Dignity he hath and oweth to the Church ^ A word whicl^ all
anti-
Gf Bifhops and Ordinaries, 23
antiquity hath appropriated to fignifie thechief in Superintenden-
cy over the whole Church within his Diocefe, wherein are divers
inferiour Pciftours. This overfight or care the Hebrews call Pekii*
dah^. Of this Office or Ecclefialtical Dignity there can be but » Num.3. 32.
one at a time in one and the fame Diocefe •, whence it is that Ccr-
tielim Bifhop of Rome (as Eufehim relates) upbraided Novating for
his ignorance in that point ', when he could not but know there were ^Eufeh.l.u-
no Icfs than .46 Presbyters in that Church :, Oecmvenim and St. Chry Hift. Eccl.
foftome affirming alfo as many at FhUippi-^ For in this reltrained
.ftnfe, as the word UBifhop^ is now taken, it cannot be imagined
that there iliould be more than one in one City or Diccefe at the
fame time 5 ccnfonant whereunto the Synod of Nice prohibited
Two or more B.iffiops to have their Seatj at once in the fame City^
This Ncvatiuj aforefaid was a Prieft oi Rome 254 years after Chrid ^
he abhorred Second Marriages, and was condemned as an Heretick
in a Synod at Rome the fame year <^. Every Bifhop, many Centu- ^ Eufeb.ih.
ries after Chrifc. was univerfal Incumbent of his Diocefe, received «P- 42.
all the Profits, Vv'hich were but Offerings of Pevotion, out of which
he paid the Salaries of fuch as officiated under him, as Deacons and
Curates in places appointed d. d seU,n\{{.'
(2.) Under this name or appellation of Bifl^ops are contained, ^^'^''■^> c. 6.
Bifhop?, Primates, Metropolitans, V^irhrchs 2nd Summm Pomifex.^^:^^-^^-^'
Difl.ii.c. I. And the Presbyters alfo, C. Lf^w?*^,§. ^- D>fi.9^. Spec^J^'^.^''^'
de Infir. Edit. Se^, 14. verf. de Epijcopo^ and for fuch commonly ufed
and taken in the New Tefcament '' : /. 14. c de Eptfc. & CUr. In ^ Phii. 1. 1..
fome Adts of Parliament we find the Bifhop to be called Ordinary ^ Afts i. 21.
and fo taken at the Common Law, as having ordinary Jurifdidion * weftm.2.
in Caufes Ecclefialtical, albeit in the Civil Law, whence that^'/p* ^
word {Ordinarii^'] is token, it fignifies any Judge authorized to 22 h. 8 5.
take Cognizance of Caufes propno [ho jure, as he is-a Magiflrate, CoLir.r.344,
and not by way of Deputation or Delegation ^. The word {Or- \ ^*^- ^^^^ ■
dinary'^ doth chiefly take place in a Bifhop, and other Superiours, "•'^' "^^ '
who alone are univerfal in their jurifdiclions ^ yet under this word
are comprifcd all other Ordinaries, viz.. fuch as to whom Ordi-
nary jurifdidion doth of right belong, whether by Privilege or by-
Cuflome. Linxv. de Conflit. c. Exterior, ver. Ordinaril. 1 he Pal-
linm Epifcopale, or Biffiop'sPall, mentioned (asSir £W. Co%obferves) :
!n fome Statutes, and many Records and Hiftories, is a Hood of
white Wool, to be worn as Dodours Hoods upon the Shoulders^
with four Crofies woven into it, GTrc. for the form and Colours
whcrQoi vid. ^ntiij. Brit, Ecclef.fo. i. This Pallium Epifcopale is the .
jirms belonging to the See of Canterbury^ : vid, Caflan. de gh.'^^ Co. lufi.
m}tn. p. ^-fol. 103. a. 26. Con/id. tdn mitka legas de Pallio. Henry T>ean^ p. 4. c 74.
^665?^ Archbifliop of Cant nlnry , Jin. 1502, had Pallium Archi- vi'^-2oH,3.v
epifcoj'atiis ' '^"^°
24 Of Bijhops and Ordinaries.
efifcofatui Infgne fent him from Pope Alexander 6. by his Secretary
Adrian J which by the Bifhop of Lichfield and Coventry^ Authori-
zed thereto by the Pope, was prefented him at Lambeth in thefe
words, viz.. Ad honor em Dei Omni'^otentis^ &c. 'Tibl tradimtu Pal-
lium de Corpore heati Petri fufnptHm, plenitudinem videlicet Pontificalif
^- Ant. Erit. Officii^ &c. ^ whereupon he fwore Canonical obedience to the Apo-
Angt. {0,102. ftolical See of Rome.
""■3^- (3.) The Kings 0^ England were anciently the Founders of all
'Co. p. 5. the Archbifnopricks and Bilhopricks in this Realm ^•, and alfo in
■c-awdy\c^kWales , the Bifhops thereof were originally of the Foundation of
St. 1 Jac.c.5. the Princes o{ Wales. BiHiops in England originally were Donative
gl^fl'ygyj°fP^^ tradltionem Baculi Tafloralis & Anmdi, until King John by his
aRwg, »7>/; Charter granted, that they fliould be Eligible. Chart. 25. Jan. An.
a Crofier or Reg, 17. De Communi Confenfit Baronum-^ after which came in the
Faftoral-jiajj. Qmge d' Ejlire. And at this day the Bifhopricks in Ireland are Do-
rlefentmm' "^^^^^ * ^^^■^ 342. The Patronage of all Bifhopricks is in the King,
AdvoVfzll.^'^ as that he gives leave to the Chapters to chufe them'". In
■^ 17E. 5. ancient times the King gave the Bifliopricks, and then afterwards
40. b. gave leave to the Chapters to chufe them, as aforefaid". The
" Ibid. learned Serjeant Roll., in that part of his Abridgment touching this
Subjed makes mention of i £. 1. Rot. Claufo Memb. 11. in dorfo.^
where there is this Proteftation made by the King, Cum Ecclejia
Cat hedr alls viduatnr., & de jure debeat., ^r foleat de Confuetudine pro-
videri per EleBionem Canonicam ab ejufmodi potifflmum celebrandam
Collegiis^ Capitulis & Perfonis-, ad qms jus pertinet., petita tamen prim
ab lllufiri Rege Anglic fuper hoc licentia & obtenta ^ & demum celebra-
ta EleCiione, perfona ele^a eidem Regi habeat prafentari., ut idem Rex
contra perfonam ipfam pojfit proponere.^ Ji quid rationabile habeat contra
eum. And the Proteftation goes farther. That in cafe the Pope
•o Nid. pmilt- jj^gjjg Provifion without fuch Canonical Eledion , the King fhall
Tot. Finium. "^^ ^^ obliged to give him his Temporalties : yet of grace for the
M. I. for the time prefent he gives the Temporalties to the Abbat Eledt of Can-
AbbatojSt. terburyo. Thus the Eledion of Bifhops by Deans and Chapters
Auguflineo/ began by the Grant of the King ^ but the Grant was to eledt after
^c^%e7t' Licenfe firft had and obtained, as appears by the Stat, of 25 Ed. 3.
there at Urge. Stat, de Proviforibw. Rajfal. ^2$.d. And King John Was the firft that
PiWrff//;.F*ir. granted it by his Charter, dated 15 Jan. An. 16. P. William Ku-
Hift. M«g. jiii K. afj;ej. the Archbilbop of Canterbury % death., kept the See with-
Dean and^ *^"^ ^" Archbifliop for the fpace of four years, and then aflum'd di-
chapcer, ^ers Other Ecclefiaftical Promotions into his own hands that were
FeY)es,\6.<b then vacant, putting to fale divers Rights and Revenues of the
Prs.mm.^0. Church q. But King H. i. made a Law againft Refervations of
l^^^*^^^"^^^' Ecclefiaftical PofTefTions upon vacancies f. In the time of £^-
^kdcm. 4S3. ^-^^^ ^^s Confcffour the Prelates ufed to receive Inveftiture from tbi
King,
Of Bifkops and Ordinaries,
25
King by giving them the Paftoral Staff* and a Ring^: And fo it ^Mmh.Par,
was ufed in the time of //. ,. but S^fragans were invefted onelv
by the Ring, without the Staff, for that they are not BiihoDs fo
fully and completely as the other ^ ^ »DrF/J
(4.) To the Creation of Billiops are requifite, Eledion, Confir- hs'' '''
mation, Confecration and Inveftiturc. Upon the vacancy of a See
the King grants his Licenfe under his Great Seal to the Dean and
Chapter of fuch vacant Cathedral, to proceed to an Election of fuch
a perfon as by his Letters Miffive he Ihall nominate and appoint
to fucceed in fuchvacant Archbilhoprick or Bilhoprick ; which
Eledion muft be within twenty days next after their receiving fuch
Licenfe or Letters Miffive ; upon failure whereof they run the dan-
ger of a Pramunire v. Or if above twelve days after their receit - vi-; ^r
thereof the Eleftion be deferr'd, the King may by his Le^Iers Pa- ^s^^o
tent nominate or prefent to fuch vacant Bilhoprick, to the Archbi- ^^^- ^ ^''A
Ihop or Metropohtane of that Province wherein fuch See is void • ^^'^•^°- P'*"*
or unto one Archbilhopand two other Bifliops, or to four fuch Bi' R^'n
^ops as his Majefty Ihall think fit, in cafe uponVuch NomLat on o '* '"* '"
Prefentmentby theKing, the default of Eledion by the Dean and
Chapter to be to the Office and Dignity of aBilhop: Otherwife U
they Elea according to his Majefty's pleafure in his Letters Miffive
^eEIe(flion is good ^ and upon their Certificate thereof unto his
Majefty under their Common Seal, the perfon fo elefted is reputed
and called Lord Btjhop EUB : yet is he not hereby complete Bifliop
to all intents and purpofes, for as yet he hath not PoteLem 7^rik
dtmom net^ueOrdwis, nor can have the fame until! his confirmati-
on and Confecration "' ^ for which reafon it is, that if rafrprwM-r
fuch Election and before Confecration) a Writ of Right be br^ J-'"-" '
in the Court of a Manor belonging to fuch Bilhoprick; it is not ^^P- 24^-
diredted Eptfcofo, but Ballivis of the Bifhop Ele^:. The Order of
making a Bilhop confifts chiefly in thefe Eight things, viz. 1 No^
mnatton, 2 Cor.gc d' EJl^re, 3. EUaton, 4. RoydJjfem. .. Con-
prm^ation 6. Creation, 7. Confecration,, 8. JnftalUtion. Vi<] Grer^
don s Cafe in Tlowd. & Trin. 1 7 Jac. B. R. Sobrem & Teiae vcrf Ke-
van. Roll. Rep. par. 2. '^ The Creation of a Bifhop is in this folemn . p n r
of that Cathedral gives notice thereof to the King, humbly reque-
ftmg his Majeft/s leave to chufe another, the l^ing graVts^h s
Con^e d EJltre: Thereupon the Dean fummons a Chapter; they,
elea the perfon recommended by his Majefty's Letters ; that Elec-
tion (after a firft or fecond modeft refufal) being accepted by the
party eleded, is certified to the King, and to the Archbifliopof that
Province^ hereupon the King grants his Royal Aflent under his
Gieatseal, exhibited to tlie faid Archbiftiop,, with command to
confirm^
2^ Of Bijhops and Ordinaries.
Confirm and Coiifecrate him •, upon this the Archbifhop fubfcribes
his Fiat Confirmation withali giving Commiffion under his Archi-
epifcopal Seal to his Vicar-General, to perform all the a(fts requi-
fice for perfecting his Confirmation. Hereupon the Vicar-General
in the Archbiftiop's name iiTues a Citation, fummoning all Oppo-
fers of the faidEledion to make their appearance at a certain time
and place, then and there to offer their Objedtions, if they have
any: This done by an Officer of the High Court of y^rc^^i (ufually
-at Bow-Churchy London) by Proclamation thrice, and affixing the
faid Citation on that Church-door, an authentick Certificate there-
-of is by the faid Officer returned to the faid Archbifliop and "C^icar-
General. At the time and place aforefaid the Prodor for the faid
Dean and Chapter exhibits the Royal aflent, and the Commiffion
of the Archbiihop, to the Vicar-General, who after the reading
thereof accepts the fame ^ Then the Prodor exhibits the Proxy from
the Dean and Chapter, prefents the eledted Biffiop, returns the Ci-
tation, and defires that the Oppofers may be thrice publickly cal-
led ■, which done, and their Contumacy accufed, defires that in fot-
nam Contumaci£ the bufinefs in hand may proceed, which the Vicar-
General in a Schedule by him read and fubfcribed doth order. Then
the Prodlor gives afummary Petition, therein deducing the whole
Procefs of Eledion and Confent, and defires a time may be affign'd
him to prove it, which the Vicar-General admits and decrees.
After this, the Prodlor exhibits the Royal affient again, with the
elected Bilhop's alTent, and the faid Certiticate to the Archbi-
lliop, defiring a time to be prefently affigned for final Sentence,
which the Vicar-General Decrees. Then the Proftor defires, that
ail oppofers may again be thrice publickly called; which done,
and none appearing nor oppofing , they are pronounced contu-
macious, and a Decree made to proceed to Sentence, by a Schedule
read and fubfcribed by the Vicar-General. Whereupon the Biihop
eled takes the Oath of Supremacy, Simony, and Canonical Obedi-
ence. After this, the Dean of the Arches reads and fubfcribes the
Sentence. Next after the Confirmation, follows the Confecration
of the eledted Biihop, according to the King's Mandate, which is fo-
lemnly done by the Archbilliop, with the affiftence of two other
Bifiiops, according to the approved Rights and Ceremonies of the
Church of England^ and in conformity to the manner and form of
Confecrating Biihops, according to the Rule laid down in the
Fourth Council o^ Carthage, about the year 470. generally received
in all the Provinces of the Weftern Church. After the Premif-
ies, there iflues a Mandate from the Archbifhop to the Archdea-
con of his Province, to inltali the Biihop Eleded, Confirmed and
Confecrated j who (or his Proxy, which is ufual ) being in jjre-
fence
Of Bifhops and Ordinaries. 2 7
fence of a Publick Notary introduced into the Cathedral Church
on any day, between the hours of 9 and 1 1, by the faid Archdea-
con, doth firft declare his afTent to the King's Supremacy, &c. Then
the Archdeacon, with the Canons, ec. having accompanied the Bi-
Ihop to the Choire, and placed him in the Epifcopal Seat, doth pro-
nounce as followeth, viz. Ego anthoritate ntihi commijfa induco & in-
throniz.0 Reverendum in Chrifio Patrem, Dom. J . S. EpifcopHm ^ Et Do-
minus cnflodiat fnum introitum & exit urn ex hoc nunc & inf<zculum^ crc.
Then after the Divine Service proper for the occafion, the Biihop
bemg conduced into the Chapter-houfe, and there placed on a high
Seat, the Archdeacon and all the Prebends, ec of the Church
acknowledge Canonical Obedience to him. And the publick No-
tary, by the Archdeacon's command, records the whole matter of
Fad in this Affair, in an inftrument to remain as Authentick to Po-
fterity. After all which, the Biihop is introduced into the Kings
prefence to doe 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 State, and by taking a folemn Oath, to
be true and faithfuil to his Majefty, and that he holds his Tempo-
ralties of Him. When Matth. Parker^ in the fecond year of Queen
Eliz.. 1559. eleded to the Archbiflioprick of Canterbury ^ had his
Confirmation in the Court of ^rches^ according to the ufual form
in that behalf^ this being performed, an entertainment for the Vi-
car-General, the Dean of the j^rches^ and other Officers of that
Court (whofe prefence was requifite at this folemnity) was provi-
ded at the NajiJhead Tavern in Cheapfide^ London^ whereby occafion
was taken by the Roman Adverfaries malitioufiy to report, That
the Nagfhead Tavern was the place of Confecration : Heyl. The
form and manner of making a Bifhop, and of tranllating him from
one Bilhoprick to another, diff*ers onely in this, that in the latter
there needs no Confecration. And the Tranllation of a Bifhop to
an Archbifiioprick, differs onely in the Commifljon, which is di-
reded by his Majefty to four or more Bifhops to confirm him.
(5. Each Archbifhop, every Bifhop, and their Officials have
their Seals of Office refpedively, which being affixed to a writing,
makes the Inftrument authentick, whereby the ufe and pradice of
Tabellions, or Publick Notaries (as in Foreign parts) is with us
much abated. For that of a TabelUon allowed by Authority to
Engrofs and Regifter private Contrads and Obligations , his Of-
fice in feme Countreys did formerly differ from that of a publick
Notary, but now they are as one and the fame Office-, Qjioniam Ta-
bellionum ufus in Reqno Anglias , proper (^md magis ad StgilU Au- ^ ^ - .^
thenticA credi eft necejfe^ ut eorum facilins habeatur, Statuimus ut Sigil. [o ft Z
lu^ habeant non folum Archie pi fcopi & Epifcopi^ fed eorum Oficiales y. An. 123d.
Q, And
28 Gf Bifhops and Ordinaries.
And all Bifliops, Ordinaries, Archdeacons, and all others exercifing
any Ecclefiaftical Jurifdi<aion, ought to have the King's Arms en-
graven on their Seal of Office •, but the Archbifhop of Canterhury
* Stat. 1 Ed. may ufe his own Seal ^. And all Procefs Ecclefiaftical, and Certifi-
6. 2. cates into any Court of Record, are to be in the King's name, Tefte
» Bid, the Bifliop ». But as to the making, admitting, ordering, and re-
forming of Chancellours, Commiflaries, Officials, Advocates, Pro-
ftors, and other Officers, Minifters and Subftitutes-, this the Bi-
^ Bid. fhops may doe in their own Names, and under their own Seals ^.
(6.) If one be eledted , and the Temporalties granted to him ,
yet he is not Bilhop before Confecratlon , 41 E. 3. 6. 46 £. 3. 32.
jQuAre^ For he may refufe to be Bifhop after Eledion, and before
Confecration, but not after, 41 £. 3. 5- b. When upon vacancy of a
Bifhoprick the Dean and Chapter, by virtue of his Majefty's Licenfe,
under the great Seal of England^ have proceeded to the Election of a
new Bifhop in purfuance of, and according to his Majefty's Letters
Miffive on that behalf, and Certificate thereof made unto the King's
Majefty under their common Seal •, then follows the confirmation,
Confecration and Inveftiture , by the Archbifhop or Metropolitan
of that Province, wherein fuch Bifhoprick was void •, the faid Ele-
ction having (upon fuch eledted Bilhops Oath of Fealty to the King's
Majefty) been firft fignified to the Archbifhop by the King, under
Bijhpfhave his Great Seal, whereby the faid Archbifhop is required to confirm
^fcerfewc; 4 xht, faid Eledion, and to confecrate and inveft the Perfon eleded j
BaronTunder ^^^ "°^ ^^ ^^ complete Bifhop, as well unto Temporalties as Spi-
Vicomts. ritualties^ yet after his Confirmation, and before his Confecration,
• 41 Ed. 3. 6. the King may (if he pleafe) ex gratia grant him the Temporalties ^.
45 Ed. 3. 2Z. But after his Confecration, Inveftiture and Inftalment, he is quali-
fied to fue for his Temporalties out of the King's Hands by the
^ F.N.B. "Writ de ReflitutioneTemforalittm^. And yet it feems theTempo-
^^°' ralties are not de jure to be delivered to him, until the Metropoli-
tan hath certified the time of his Confecration, although the Free-
« 38 E. 3. 30. hold thereof be in him by his very Confecration ^. But if during
^aLu^^ the Vacation of Archbifiiopricks, or Bilhopricks , and while their
'' ^ ' Temporalties are in the King's hands , the Freehold-Tenants of
Archbifhops or Bilhops happen to be attainted of Felony, the King
by his Prerogative hath the Efcheats of fuch Freeholders Lands, to
difpole thereof at his pleafure, faving to fuch Prelates the Service
•fScixEd. that is thereto due and accnftomed^. Before the Conqueft the
^ H' Principality of Wales was held of the King of England^ and by the
Rebellion and forfeiture of the Prince , the Principality came to
the King of England , whereby the Bifliopricks were annexed to the
CxowjTj and the King grants them theif Temporalties. 10 H. 4. 6.
c
(74 The
Of Bijhops and Ordinaries, 2p
(7.) The manner of makijig a Bifhop is fully defcribed in Evans
and Kiffn*s Cafe againft Askjvith , wherein it was agreed, That
when a Bifiiop dies, or is tranflated, the Dean and Chapter certific
the King thereof in Chancery, and pray leave of the King to make
Eledion ^ Then the King gives his Congi d Eflier, whereupon they
make their Eledion , and firfl: certifie the fame to the party Eleft,
and have his Confent ^ then they certifie to the King in Chancery -,
alfo they certifie it to the Archbifhop ^ and then the King by his
Letters Patents gives his Royal Aflent, and commands the Archbi-
Ihop to confirm and confecrate him, and to doc all other things ne-
ceflary thereunto •, whereupon the Archbifhop examines the Elec-
tion, and the Ability of the party, and thereupon confirms the Elec-
tion*, and after confecrates him according to the ufage upon a
new Creation : And upon a Tranjlation all the faid Ceremonies are
obferved, faving the Confecration, which is not in that cafe requi-
fite, for that he was confecrated before.
(8.) Bifhopricks were Donatives by the King , till the time of
W. Rufus^ and fo untill the time of King John. Readc for that the
Hiftory of Eadmerus. Fid. Cafe Evans verf. Afcouth , in fin. Caf.
NoyV Rep. It hath been generally held, That before the Conqucft,
and after, till the time of King John^ Bifhops were invefted by the
King fer Bacnlum & Annnlum ^ but King John by his Charter
granted. That there ihould be a Canonical Eledion with three
Reftridtions: (i.) That leave be firfl: asked of the King. (2.) His
AlFent afterwards. (5.) That he Ihall have the Temporalties du-
ring the vacation of the Bifhoprick \ whereof mention is made in
the Stat, of 2$ Ed. z. de Proviforibus ^ and which is confirmed by
the Stat, of 13R- 2. c. 2. s. Alfo the Law in general is pofitive there- « Cafe df the
in. That in the making of all Bifhops , it fhall be by Eledion and ^l^" ^"^
the Kings Aflent ^ and by the 25 H. 8. the Statute for Confecration NofwTch
of Bifliops makes it more certain : And if the Pope after the faid co.\ep!
Charter did ufe to make any Tranflation upon a Poltulation, with- par. 3. '
out Ele(ftion and AfTent of the King, it was but an llfurpation,
and contrary to the Law, and reftrained by 16 R. 2. and 9//. 4.
8. And after the 25 //. 8. it was never ufed to have a Bifhop by
Pofl:ulation or any Tranflation of him, but by Eledion, as the faid
Statute prefcribes ^ and the form of making a Bifhop at this day, ■
is after the fame manner as aforefaid , and according to the faid
Statute.
(9.) The Interefl: and Authority which a Bifhop Eledt hath, Is,
That he is Epifcofns Nominis , non Ordinis , necjue JpirifdiElionis ^
But by his Confirmation he hath Foteftatem Jurifdi^ionis, as to
Excommunicate and Certifie the fame, 8.^^/5.89. And then the
po^yer of the Guardian of the Spiritualties doth ceafe ^. But " T>yer 550.
d 2 after
^Q Gf Bifhops a?id Ordinaries,
after Eledion and Confirmation, he hath Foteftatem Ordinatioms^
for th^-n he may eonfecrate, confer Orders, &c. For a Bifhop hath
Three Powers, ( i.) Ordinis^ which he hath by Gonfecration, where-
by he may take the Refignation of a Church, confp^ Orders, cori-
fecrate Churches:, and this doth not appertain to him quatenus Bi-
Ihop of this or that place, but is univerfal over the whole world :
So the Archbifhop of Sfdato^ when he was here, conferred Orders.
(2 ) jHrifdi5iioms^ which is not Univerfal, but limited to a place,
and confin'd to his See •, This power he hath upon his Confirma-
tion. (3.) Mminiflratio rei familiaris ^ as the Government of his
« Evans and Revenue ; and this alfo he hath upon his Confirmation K The Bi-
Afcough's, fliop adts either by his Epifcopal Order^ or by his Eptfcopal JurifdiEit-
Cafe. Latch. ^^ . gy ^hg former he ordains Deacons and Priefts, Dedicates or
*^^P* Confecrates Churches, Chapels and Church-yards, adminifters Con-
firmation , &c. By the latter he ads as an Ecclefiafticai Judge in
matters Spiritual, by his Power either Ordinary or Delegated.
( 10.) An. 1430. Temp. Keg, H. 6. Hen. Chicheley Archiepifc. Cant.
in Synodo conftitutHm efl^ Ne quis jHriJdiatonem Ecclefiafticam exerce-
ret nift Juris Civilis aut Canonici gradnm aliquem ab Oxonienfi vel Can-
tzhngiQnii Academia accepijfet. Ant. Brit./<?. 284. nu. 40. The power
of the Bifl-'Dp and Archbifhop is derived from the Crown, as was
held in Walkers Cafe againft Lamb ^ where it was alfo held , That
the Grant of a Commiflary or Official to one was good, notwith-
ftandinghewereaLay-man, and not a Dodour of Law, butonelya
BatcheloiarofLawi for the Court then faid, That the Jurifdidion
of the Bilhop and Archdeacon is derived from the Crown by ufage
and prefer iptioni and that in it felf, as it is coercive to punifh
Crimes, or to determine Matrimonial Caufes and Probate of Te-
ftamenisi and granting of Adminiftrations, being Civil Caufes are
derived from the Crown, and not incident de mero Jure to the Bi-
fhop, which appears by Hf«/Zoip'sCafe, par. 9. C«W>7'sCafe, par.%,
1 Ed.6. c. 2. the Stat, of 37 H. 8. and divers other Authorities,
' Trin. ». and the Star, of 37 H. 8. c. 17. is to that purpofe ^.
c%e%\er (H') ^^ former times many Bifliops had their Suffragans^ who
verf. ilmie, were alfo confecrated, as other Bifhops were ^ Thefe (in the ab-
Jones Rep. ' fence of the Bifhops upon Embaffies, or in multiplicity of bufinefs)
did fupply their places in matter of Orders., but not in JurifdiEH-
» Ant. Brit. onK Thefe were chiefly for the eafe of the Bifliops in the multi-
^^' 2^ • plicity of their Affairs , ordain'd in the Primitive times , called
Chorepifcopi, SHJfragan^ or Subjidiary BrfJiops , or Bijhops Suffragans,
and were Titular Bifhops , confecrated by the Archbifhop of the
Province ; and to execute fuch Power and Authority , and receive
fuch profits as were limited in their Commiflions by the Bifliops
or Dioceians, whofe Suflragans they were. What Towns or Places
Of Bi/bops and Ordinaries. - 2 1
to be the Sees of Bifhops Suffragans , and how many to a Dioccfe,
and in what Diocefes, appears by an Adt of Parliament made in
the Reign of King H. 8. Such Suffragan Bifhops are made in cali
the Archbifhop , or feme other Bifhop defire the fame ; !n which
cafe, the Bifhop prefents two able perfons for any place allowed by
the faid Ad of Parliament, whereof his Majefty doth chufe one-,
but at prefent there are no fuffragan Bifhops in England, They
were no other than the Chorefifcop of the Primitive times, Subfidiary
Bifhops, ordained for eafing the Diocefan of fome part of his Bur-
then, as aforefaid : by means whereof they were enabled to perform Heyl Hift.
fuch Offices belonging to that facred Fun^ftion, not limited to time EccLp. 294.
and place by the ancient Canons , by which a Bifhop was reftrained
in fome certain Ads of Jurifdidion to his proper Diocefe. Ofthefe
there were twenty fix in the Realm of England^ diftinguiflied by the.
Names of fuch principal Towns as were appointed for their Title
and Denomination. The Namr? and Number whereof, together
with the Jurifdidion and prehemiaences proportioned to them, the
Reader may perufe in the Ad of Parliament made ^«. 26. /f. 8.
(12.) According to the Temporal Laws of this Land, if a Bi-
fhop grant Letters of inftitution under any other Seal than his Seal
of Office, and albeit it be out of his Diocefe, yet it is good ^ For in
Cor A Cafe again ft the Bifhop of St. Davids and others, where the ^nWi'^.ca?,
Plaintiff offered in evidence Letters of Inftitution, which appeared B. r. ro.454'.
to be fealed with the Seal of the Bifhop of London^ becaufe the Bi- ^'"'^ ^^r^"- Kp»
Ihop of St. Vavids had not his Seal of Office there, and which Let- yl'S/^^'^i'
ters were made alfo out of the Diocefe^ It was held , That they Rep/"^' ^°'
were good enough, albeit they were fealed with another Seal, and " Linw. de
made out of the Diocefe; for that the Seal is not material, it being i«^^ Preibyu.
an Ad made of the Inftitution : And the writing and fealing is '^f^-^'^latio-
but a teftimonial thereof, which may be under any Seal, or in any o cclt<fyQh.
place. But of that point they would advife '^. ver. verf. Bp.
(13.) A Biihop, if he celebrate Divine Service in any Church of of Coventry
his Diocefe, may require the O'fferings of that day ". , He may fe- <^ j-^^f^field>
quefter, if the King prefent not :, and 1 2 H. 8. 8. by VolUrd^ he muft p ^H^JfU.
fee the Cure ferved, if the perfon fail, at his own Cofts o. He may 10 h. 7. is.
commit Adminiftration , where Executors being called, refufe to. 7 E. 4. 12.
prove the Will?. He hath power of diftribution and difpofing ^^^^- /^^ c^^-
of Seats, and charges of Repairs of the Churches within his Dio- q^^cafe S3of/>
cefe q. He may award ]l\is Jure Patronatus where a Church is Li- ijveK Bailji..
tigioM between an Ufurper and the other ;, but if he will chufe the Hob. Rep.
Clerk of either at his peril, he ought at his peril to receive him ' Lord 5/;rn-
that hath Righl by the Statute r. He may Lkenfe Phyficians , J^^^'^^ B^^*^ of
Chirurgions, Schoolmafters and Midwives^, He may Collate by £/;,ca/„ ^ j)^
L^fe, He may take competent time to examine the fufficiency ^w.2.cap.$^.
and
22 Of Bi(hop and Ordinaries.
and fitnefs of a Clerk. He may give convenient time to perlbns
interefted to take notice of Avoidances. He is difcharged againft
the true Patron , and quit of Difturbance , to whom it cannot be
imputed, if he receive that Clerk, that is in purfuance of a Verdift
-f Sirlf'.f/fi* after Inqueft in a Jure Tatronams ^. He may have fix Chaplains,
verf. Archbi- and every Archbilhop may have Eight Chaplains ^ He may unite
fliopofror^gj^^j confolidate fmall Parifhes •, and affift the Civil Magiftrate in
^06 RcT execution of fome Statutes concerning Ecclefiaftical Affairs. And
'^ Scat. 21 H. by the Statute of i EHz^. cap. 2. any Bifhop may at his pleafure
8. c, 1 1. joyn and aflbciate himfelf to the ]uftices of Oyer and Terminer^ or to
the Juftices of Aflize at the open and general SeiTions to be holden
at any place within his Diocefe, in Caufes of the Church. And the
Statute made i-jCar. 1. c. 27. for the difenabling of perfons in Ho-
ly Orders to exercife Temporal Jurifdidion or Authority, is repea-
led by the Statute of i3C«r. 2. c.z. whereby they are now ena-
bled to exercife fuch Temporal jurifdidion as formerly ; and is
commonly ftyled the Ordinary of that Diocefe, where he doth ex-
ercife his Epifcopal Authority and Jurifdidion. In Parliament,
Bifhops, as B?rons, may be prefent and vote at the Trial and Ar-
raignment of a Peer j oaely before Sentence of Death , or lofs of
Member, be pronounced^ (that they may have no hand in bloud in
any kind ) they have by Canon Law the Privilege and Injunction
to abfent themfelves j and by Common Law, to make Proxies to
vote for them.
(14.) ORDI NA R r, according to the acceptation of the Com-
mon Law with us, is nfually taken for him that hath Ordinary Ju-
^^i6oBm. rifdidion in Caufes Ecckfiaftical", immediate to the King. He
hecm, jg in common underftanding the Bifhop of the Diocefe, who is the
Supervifor, and for the moft part Vifitor of all his Churches within
his Diocefe, and hath Ordinary Jurifdidion in all the Caufes afore-
faid for the doing of Juftice within his Diocefe in jure proprio &
non per deputationem , and therefore it is his care to fee that the
Church be provided of an able Curate, Habet enim Curam Curarum^
and may execute the Laws of the Church by Ecclefiaftical Cenfures,
and to him alone are made all Prefentations to Churches vacant
within his Diocefe. Ordinarius habet locum principaliter in Epifcopo^
& alt is Super tor ibm , qui foli funt Vniver fates in fuis JurifdiBiont'
hut : fed funt fub eo alii Ordinarii , hi videlicet^ quibus Competit Jw
rifdidio Ordinaria de Jure^ privile^io , vel confuetudine. Linw. cap.
Exterior, tit. de Conftitutionib.
(15.) The Jurifdiftion of the Ordinary or Bilhop, as to the
Examination of the Clerk, or as to the Admiflion or Inftitution of
him into a Benefice, is not Local ^ but it follows the perfon of the
Ordinary or Bilhop wherefoever he is : And therefore if a Cl^rk
be
Of Bi/hops and Ordinaries. 55
be prefented co the Bilhop of Norwich , to a Church which is void
within the Diocefe of Norwich^ who is then in Lcfudofj ^ or if it be
to a Bifhop of Ire land y who is then in England, and in London-^ the
Ordinary may examine the Clerk, or give him Admiffion or Inlli-
tution in London : And fo it was adjudged ^. « a? EMz.
( 16.) The Ordinary is not obliged upon a Vacancy to receive the ^' ^' ^" ^fr
Clerk of him that comes firft •, for as he may take competent time to clfc. ^^
examine the fufficiency and fi:nefs of a Clerk, fo may he give conve- Leon. 53. e5r-
nient time to peribns intereiTed, to take knowledge of the Avoi- Pafch.zijac.
dance, even in cafe of Death-, and where notice is to be taken, not f;^*'-]^"''^"
given, to prefent their Clerks to it. And perhaps, if he do receive lil^Q^k fit
the Clerk of him that comes firft, yet he may quit himfelf of a Diftur- Leon. *
bance, becaufe he doth nothing therein but as Ordinary in Law. But
if two or more Prefent, fo that the Title is become litigious, then
and in fuch cafe he cannot receive the Clerk of any, of his own plea-
fure, except the Title be certain, but hath his way of fafety by Jure
Fatronatus-^ and when he hath uted the Jure Patronatus, and that
finds for one party, yet he may ftill receive a contrary Clerk if he
will, for who can let him ? but that muft be at his own peril, and that
is at a double peril, (i.) That the Title be the better, (1.) That
the Patron, whofe Clerk he hath received, will plead and defend that
Title i for otherwife he cannot doe it. But though after Inqueft, in
Jure PatronatHj^ the Ordinary may accept the contrary Clerk, yet it
is^ainft Juftice and the intent of the Law •, For fince it is a Provifi-
on merely for the good and fafety of the Ordinary, and he pretends
doubt; and therefore puts the Patron to this enquiry to his charge
and delay to fatisfie and fecure him , he ought to judge and receive
the Clerk according to that Verdid:. And that is the true meaning
of the Books that fay, that the Ordinary is to judge of the better
Title, that is, not to prejudge of his own Will, hut fecundnm allegata-
€^ proi^ata^ uponVerdift of the Right given and found according to
the form of Law, to give Inftitution which is his Judgment, and the
Indu6iion his Execution. And though it is but an Inqueft of Office,
and therefore binds not -^ True it is, it binds not , but with a di-
ftindtion, that is, it binds not the Patron in his Quare imfedit^ but
is Final, even to the true Patron, that he cannot impute difturbance
to the Ordinary^ following that Verdid, and therefore it ought to
hind him to follow it. For to thefe purpofes it is a full Verdid, ne-
ver to be tried again. And if but one prefent, if the Ordinary make d pafd,. ,^
doubt of his Title, as in maay cafes he >uftly may, being a ftranger Jac. Ro. 877,
to it, he may require fatisfadion by Jure PatronatHs <^ . Sr. WilLEhk
(i-j.) If it be demanded, whether the ordinary can cite a ^^^ Jf^^^' ^f^^^'
out of his Diocefe ? the Common Law anfwers it in the negative •j-iJJJ'otherst'
-AncJ fo it was held by Jwss and }Vhitl9sk.r Juftices in Mrowns Cafe, in ^0^. Rep!
where
54. ^/ Bilhops arid Ordinaries.
where they held -> That at the Common Law a Bifliop cannot cite a
man out of his Diocefe *, and there Whitlock held, that the Ordina-
ry hath not any powfr of jurifdidion out of his Diocefe, but to
g 2rowTis abfolve a perfon excommunicated «. If one in N. commit Adultery
Cafe, Latch, in another Diocefe , during the time of his Refidence, he may be
Rep.' cited in the Diocefe where he committed the offence, although he
?-5ro»«/.p.i. dwell out of the Diocefe : by Cok^^ Warbnrton and Winch *. And
Cafes and in the time of his Vifitation he hath Jus ad Symdalia , according
Law. iQ the Cuftome more or lefs, as in Gloncefterlhire, where the Impro-
priation of Derehurt pays annually 7/. ^d. fro Symdalibus or Pro-
curationibHi ^ for this Synodal is not in this fenfe here taken as in
the Statute of 25 /I/. 8. cap. 19. for Synodah Provincial which feem
to fignifie the Canons or Conftitutions of a Provincial Synod, nor
for the Synod it felf , which the word Synodal doth fometimes fig-
nifie •, but it is here in the fame fenfe as the word Synodal in the
Statute of 34//. 8. cap. 16. for z Synodal is no other than a Cenfc
or Tribute in money, paid to the Bilhop or Archdeacon by the In-
fer iour Clergy.
(18.) Every Spiritual perfon is vifitable by the Ordinary^,
ff Davh I. So is a Dean de mero jure^ for he is Spiritual g. The Ordinary
Commend, hath alfo power of CorreAion of a Parfon''. And every Hofpi-
72- ^' tal, be it Lay or Spiritual, is vifitable'. By the ancient Law of
s D. 10. . j.j^^ Realm the King hath power to vifit, reform and correct all
i'^2oU.6.^6. Abufes and Enormities in the Church •'. Nor are the King's Doi-
* Co. 10. natives vifitable by the Ordinary ^ ^ but properly by the Lord
5«mn'sHofp. Chancellcur "». And the King may grant a Special Ccmmifiion to
*^b.?w/ I. ^^^^ purpofe n. But as to Hofpitals if they be Spiritual, the Or-
Proxies. 4.' dinary ftal) vifit them; if they be Lay- Hofpitals , the Patron °.
' Davii 1. In the Stat, of i EL cap. 2. there is a Proytfo^ That all and fngular
D. & C. de Archbifhofs and Bifhops^ and every of their Chance/lours^ Co/nmijfaries,
"^ F * 6 ■^^(^^'^^acons and other Ordinaries , having any peculiar Ecclefafiical
Bt. pramuni- J^^^if^^^^ion^ fliall have full power and authority by virtue of this AB;^
rear. as well to enquire in their f^tjitations^ Synods^ and el fxrhere within their
^ Davis I. JurijdiElim^ or any other time or place ^ to take eccafions and informa-
40. F. N. D. fjfff^j gj^ ^11 ^fj^ every the things above mentioned^ done, committed, or
n £). 1. 45. perpetrated within the Limits of their JurifdtSHon or Authority^ and to
"Co. 10. punijh the fame by Admonition , Excommunication^ Sequcfiration , or
Sutton's 31. Deprivation^ and other Cenfures and Procefs in like manner as hereto^
fore hath been ufed by the ^u-crPs Ecclefafiical Laws. The Ancient
coftome was for thtViftor to vifit in his own perfon, & vifitare Ec-
clefiatim^ per cunBas Diocefe s parochidfque fuas 10. q. i.e. Epifcopum
E Concil. Toletan 4. ca. 35. This Vifitation is a fpecial and pe-
A3s 15, & culiar duty belonging to every Bifliop, as derived from the Apo-
16. ftles, who themfelves were rtftors , and for that end and purpofe
did
Of Bijhops and Ordinaries, 2 5
did fertranfire Ecclefioi & Vrbes. The Bifliop hath his Triennials^
per Archidiaconum Vifttatio potefi fieri Jingulis annis. Extr. de Offic*.
jirchid. c. Mandamm, We find alfo, that Epifcopm debet vifitare
finghlis annis Parochiam^ mjidimittat propter gravamen Ecclefiarumj &
tunc mittat Archidiaconum^ &c. Ah. Sic. fuper 2. \.de Offic. Archid, 2 Cok. 15.
c. ut Archidiaconui 10.^. i.e. Decrevimui, &c. Epifcopum. ^' ^P^-'^-
(19.) Every Bifliop hath his Cathedral and Council, and the^'^^'^'^'^^S.
Council and Biihop there decide matters of Controverfie ^ the Pre-
bends have their names from the affording of help to the Bifliop.
If any Clerk, after he hath fworn Canonical Obedience, fliould hap- ^''^»'«^- Rep.
pen to commit Epifcopicide^ he is guilty of Petty-Treafon., and fliail TYa'^^r'^r
fufFer as fuch. Whereas heretofore the County of GloHcefier msinlau^X"
a part of the Diocefe of Worcejher^ out of which it was taken by-
King //. 8. when firft made a Biflioprick^ the Diocefe ofWorcefier
was in the time ol King Ed. 6. laid to the See ofGloncefier. Dr. Hey-
lin'j Hifi-. Eccl. p. 10 1. Next unto the two Archbifliops, the Bifliop
of London.^ of all the other Bifliops, hath the preeminence. Epif
copHS Londinenfis (fays an ancient Record) fpeciali qnadam Dig-
vitate CAterii anteponendm^ quia Ecclejia Cantuarienfis Decanm eft Pro-
vincialis. The Bifliop of Dnrefme (who is next in precedency)
hath been a Count Palatine about fix or feven hundred years, and
hath at this day the Earldom of Sadherg, long lince annexed to this
Biflioprick by the King. Note , a Prefident hath been fliewed at
Common Law, That the Bifliop of Durham imprifoned one for a
Lay-Caufe-, and the Archbifliop of Tor k^.^ as his Sovereign, cited
him to appear before him, to anfwer for that Imprifonment i and
the Archbifliop was fined four thoufand Marks. Cr(?. /><«r. I. TheBi-
fhop of IVinchefter was anciently reputed Earl of Southampton : All
the other Bifliops take place according to the Seniority of their
Confecration, unlefs any Bifliop happen to be made Lord Chancel--
lour^ Treafurer.^ Privy Seal., or Secretary of State .^ which anciently
was very ufual. All the Bifliops of England are Barons and Peers of
the Realm, have place in the Upper Houfs of Parliament, as alfo in
the Upper Houfe of Convocation •, The Bifliopricks were eredted
into Baronies by William the Conquerour at his coming into England.
And as a fpecial remark of Honour, Three Kings, viz.. of England.^
Scotland.^ and Scuth-lf^ales., in the year iico. did contribute their
Royal jhoulders for the conveyance of the deceafed Corpfe of Hugh .^
Bifliop of Lincoln., to his Grave. And no wonder, when Princes
themfelves, and fuch as were of the Blood Royal were anciently Bi-
fliops in this Kingdom •, they have been not onely of the befl: Nobi-
lity, but divers of the Sons and Brothers of feveral EngUfh Kings
iince the Conquelt and before, have entred into Holy Orders^ and
became Ecclefiafticks, as at this day is practicable in the molt of all
• R other
2^ Of Bijhops and Ordinaries,
other Monarchies throughout the whole Chriftian World. Ethel-
wolfh^ Son and Succeilbur to Egbert^ firft fole King oi England, was
in Holy Orders^ and Bifhop oiWinchefler at his Father's death. Odo^
Brother to William the ConqHercur^ was Bilhop of Bayenx in Norman'
dy. Henry de Blois^ Brother to King Stephen^ was Bifhop of Win-
chefier. Geofrey VUntaginet^ Son to King //^«ry the 5ffo«^, was Bi-
fhop of Lincoln. And Henry de Beanford, Brother to King Henry
the Fourth^ was Bilhop alfo of iVinchefier.
(20.) The Statute of 17 Car. i. cap. 27. for difinabling perfons in
Holy Orders to exercife Temporal jurifdidion or authority, be-
ing repealed (as aforefaid) by the Statute of 13 Car. 2. cap. 2. they
are thereby reftored to the exercife of Temporal jurifdidion, as for-
merly , which indeed is no more than what they ever anciently
exercifed in this Kingdom ;, For, Ex Clere Rex femper fibi eligebat
Primos a Confiliis^ Primes ad Officia Regni obtunda. Primi igitttr fe-
debant in omnibus Regni Comitiis & Tribunaltbus Epifcopi , in Regali
midem Palatio cum Regni Magnatibm^ in Comitatu una cum Comite^ in
Turno cum Vice comite^ & in Hundredo cum Domino Hundredi^ fc m
in promovenda Jujlitia ufquequaque gladii gladium adjuvarent^ & nihil
inconfulto Sacerdote vel Epifcopo ageretur. This Union of Perfons,
authority, and Courts of Judicature, Ecclellaftical and Civil, (as
Selden lib. 2. Mr. Selden proves ) continued above Four thoufand years , till
de Synedriis. Pope Nicholas the Firft- about the Eighth Century, to exclude the
Emperour from medling in the Eccleftiaftical Government, began
to exclude the Clergy from medling with the Civil. And for the
Vid. Grat. fpace of four or five hundred years, during the Reign of the Saxon
Dift. c. c«w Kings in England^ the Ecclefiaftical and Secular. Magiftrates fate
i^iverum, jointly together, determining Ecclefiaftical affairs in the Morning,
and Secular or Civil affairs in the Afternoon ^ fo that in thofe
days, as there was no clafhing of Jurifdidions , fo no complaint
touching Prohibitions \ but an unanimous harmony in a kind of joint-
jurifdidtion in reference to all Ecclefiaftical and Civil affairs ; un-
til William the Conquerour did put a diftindtion between Church and
State^ in a more divided way than formerly had been pradifed.
Alfo the excellent Laws made by King Ina^ King Athelflan^ King
Edmund , and St. Edward the Confejfor^ from whom we have our
Common Laws , and our Privileges mentioned in Magna Charta ,
were all made by the perfuafions and advice of Archbifhops and Bi^
fliops, named in our Hiftories.
(21.) That which during the Reign of King Edw. 6. made the
greateft alteration, and threatned moft danger to the State Ecclefi-
aftical, was the Adt entituled, jin AS for EleBiou^ and what Seals
and Styles (hall be ufed by Spiritual perfons^ &C'. In which it was or-
dained. That Bijhops Jhould be made by the King's Letters Patejits^
Of Bijhops and Ordinaries,
"^1
and not hy the EUaion of the Deans and Chapters : That all their Pro-
cejfes and Writings fliould be made in the Kings Name onely, with the Bi-
(hop's Tefte added to it'^ and fealed with no other Seal than the Kings^
or fnch a^ jhould he authorized and appointed by him. In the com-
pounding of which Ad there was more danger (as Dr. Heylin
obferves) couched , than at firft appeared. For by the lafi Branch
thereof it was plain and evident (fays he) that the intent of the Con-
trivers was, by degrees to weaken the Authority of the Eptfcopal Order
by forcing them from their fir ong hold cf Divine Inftitution, and making
them no other than the Ktngs Minifters onely, or as it were, his Ecclefi-
afiical Sheriffs, to execute his Will^ and dtfperfe his Mandates. And
ofthis^(^fuchufewas made (though poffibiy beyond the true in-
tention of it; that (as the faid Dr. Heylin obferves) the Bifhops
of thofe times were not in a Capacity of conferring Orders but
as they were thereunto impowred by fpecial Licenfe. The Tenour
whereof {{^Sanders be lo be believed) was in thefe words follow-
ing, viz. 7 he King to fuch a Bijhop Greeting, Whereas all and all
manner of JurifdiUion, as well Ecclefiaftical as Civil, flows from the
King as from the Supreme Head of all the Body. &:c. We therefore give
and grant to thee full power and line en fe, to continue during our good
pleafure, for holding Ordination within thy Diocefe ofN. and for pro-
moting fit per fons unto Holy Orders, even to that of the Priefihood.
Which being looked on by Queen Mary, not onely as a dangerous
diminution of the Epifcopal Power, but as an odious Innovation
m the Church of C^r//?-, fhe caufed this Aft to be repealed iji the
firft year of her Reign, leaving the Bifhops to depend on their for-
rner claim, and to ad all things which belonged to their Jurifdic-
tion in their own Names, and under their own Seals, as in former
times. In which eftate they have continued without any Legal In-
terruption, from that time to this. But (fays the fame Authour)
tn the firft: Branch there was fame what more than what appeared at the
firft fi^ht : For, though it feemed to aim at nothtng, but that the Bifhops
fhould depend wholly on the King for their preferment to thofe great and
eminent pUces ; yet the true drift of the Defign was, to make Deans and
Chapters ufeiefs for the time to come^ and thereby to prepare them for a
DtjfolHtion. For, had nothing elfe been intended in it, but that the
King (l^ould have the fole Nomination of all the Bifhops in his Kingdoms,
it had been onely a reviver of an ancient power, which had been for-
merly tnvefted in hi( Predeccffours, and in all other Chriftlan Princes.
If we confulc the Records of elder times, it will readily appear,
not onely that the Roman Emperours of the Houfe of France did
nominate the Popes themfelves -, but that , after they had loft that
power, they retained the Nomination of the Bifhops in their own
Donjinions. The like done alfo by the German Emperours , by
R 2 the
g Of Bijhops and Ordinaries, ^^
---—— — ^^^ of Spain .-The
Sftf^feelllvefturf being fhen performed per AnnuUm & Baccul.rn th.t is
Temp. Ed. 6. j^y clelivering of a ^/W, together with a Cr^/fr or Pajhral Staff, to
'^'^*'^^' the nartv nominated. ^ , ^j
(22) Bv ancient Right the Bi^ops of London are accounted
j)L;if the Epifcopal College-, and being fuch, ^f!^ ^y^heir p^^^^^^^
to fignifie the pleafure of their Menopohtan to ail the biHiops of
the Province to execute his Mandates , and difperfe his Mtjfives,
lb p .. ,, on all emergency of Afl^airs : As alfo to prefide in Convocations,
'■ ''' ''■ or ProvTncial Synods , during the vacancy of the See , or in the
necefTaryabfence of the Metropolitan. , ^^ -,^, . i^-
Mkh..7 Jac. ( ) In 0 Bnan and KmvarPs Cafe, the Cafe was That King
T.ReVnO Bdlmdci his Privy Seal fignified to Sir if • C. and to the Lord
^r-" '"^. ChancelloHr, and others in Ireland; That he elcded and appomted
oihers and ^ ^ . ^l Bilhop of 0/c»ry ; requiring them to Inftall him in the
far" Bil^oprick The^Deputy 1)eing\emoved, the Chancellor and the
era par. 2. oJher made a Commiffion under the Great Seal oHreland to the Bi-
ftoD of JDnhlin to confecrate him^ which was done accordingly,
and he did his Fealty, and recovered the Teraporakies out of the
KinR's hands. Afterwards in the life of J. B, (lueen Mary eleded
7 r to be Bifhop there: who was likewife confecrated, and who
made a Leafe of divers Lands of the Bifhoprick for 101^ years
which was confirmed by the Dean and Chapter. 7- ^•. died; and
j^fter 7 r died 7. W. was eledled Bifhop. The aueftions in the
Cafe were,' ('0 Whether J. 5. was well created BiQiop? (2.) Whe-
ther this Leafe made by J. T. being Bifliop de fade but not de jure
in the life of J. b: he furviving J, B. fhould be good to bind the Suc-
ceflbur? Refolved, The Commiffion was well executed although
the DeDutv Sir J. C. were removed. (2.) Refolved, That before
the Statute of 2 £liz. the King might by Patent without a Writ of
Cme d Efl.re create a Bifhop, for that was but a Forrn or Ceremo-
nv (3 ) Refolved, That although J. T. was Bifhop de faSio m the
life of 7 B that, the Leaie made by him for 101 years was void,
though it was confirmed by the Dean and Chapter, and fliould not
bind the SuccefTour : But all Judicial Ads made by him, as Mmf
fions, InfiltHtions, &€. fhould be good •, but not fuch voluntary Ads
as tended to the depauperation of the SuccefTour.
Mich.3Car. A Bifhop made a Leafe for three Lives not warranted by the
c. B. Owen statute of I EUz.. rendi ing Rent •, the SuccefTour accepted the Rent,
and no,Ap. j^ ^^5 Refolved, It fhould bind him during his time, foas he Ihali
iice'sCafe. __^ . , . ^ , ^^/- ,.,v,;rh nrherwtfe was voidable.
CfO. par. 5.
not avoid the Leafe, which otherwife was voidable,
CHAP.
'^9
C H A P. IV.
Of the Guardian of the Spiritualties.
1 . What the Office of fuch a Cuardim is^ And by whom con(iituted.
2. The power of fuch Guardians in vacancy of y^rchbijJwprickj.
3. IVhat Remedy in cafe they refufe to grant fuch Lice?ifesor Difpen-
fationi^ oi are legally grantaUe.
4. Who is Guardian of the Spiritualties^ of common Right.
5. What things a Guardian of the Spirit ualiies may doe.
( \.^ /"^Vardian of the Spiritualties (Cufios Spiritualium ^ vel Spi-
V_J ritualitatif ) is he to whom the Spiritual Jurifdid:]-
on of any Diocefe (during the vacancy of the See) is com-
mitted =». Dr. Covcell conceives, that the Guardian of the Spi- « vid. St. 2 5. -
ritualties, may be either Guardian in Law, or Jure Magiflratm (as H. 8. c. ai.Sr-
the Archbifliop is of any Diocefe within his Province) or Guardi- '5^'-^' '^.i
an by Delegation , as he whom the Archbifhop or Vicar-General
doth for the time depute. Guardian of, &€. by the Canon Law
pertains to the Appointment of the Dean and ( hapter. c. ad abo-
lend. Extr, Ne fede vac ante aliquid innovetur : But with US in Eng-
land^ to the Archbifhop of the Province by Prefcription. Howbeit
(according to Mr. Cwin in the Preface to his Readings) divers
Deans and Chapters do challenge this by Ancient Charters from the
Kings of this Realm, Cowell verb. Cujlos. ThiS Ecclefiaftical Office
is fpecially in requeft, and indeed neceflarily in the time of the
Vacancy of the Epifcopal See , or when the Bifhop is in remotis
agendis about the publick Affairs of the King or State ^ at which
time Prefentations muft be made to the Guardian of the Spiritual-
ties, which commonly is the Dean and Chapter : or unto the Vicar-
General, who fupplies the place and room of the Bifhop ^. And vco, i.par.
therefore if a man recover, and have Judgment for him in a ^/^^rf Inftit. ace.
Jmpedit^ and afterwards the Bifliop (who is the Ordinary) dieth •,
In this cafe the Writ to admit the Clerk to the Benefice muft be
direded to the Guardian of the Spiritualties, Sede vacante^ to give
him Admiffion : But if before his AdmifTion another be created
Bifhop of that See, and confecrated Bifliop ; in that cafe the power
of the Guardian of the Spiritualties doth ceafe, and the party
may have a new Writ to the new Bifliop to admit his Clerk c. A c ,g euz.
Guardian of the Spiritualties may admit a Clerk, but he cannot Dyer 350.
confirm a Leafe ■>^. * Cafe Evans
and Afcougb.
(2.) The^^^^'^-^'^P^>
^o Of the Guardian of the Spiritualties,
(2.) The Guardian of thefpiritnalties takes place as well in the
vacancy of Archbifhopricks as Biftiopricks, and hath power of gran-
ting Licenfes, Difpenfations. and the like, during fuch vacancies, by
the Stat, of 25 H. 8. whereby it is provided and enaded. That if it
happen the See of the Archbiilicp of Canterbury to be void, that then
all fuch Licenfes^ Vijp en fattens^ Facnlties^ lujlrHments^ Refcripts^ and
other Writings which may be granted by virtue of the faid Ad ,
fhaii (during fuch vacation of the faid See) be had, done, and gran-
ted under the Name and Seal of the Guardian of the Spiritualties
of the faid Archbifhoprick, according to the tenour and form of
the faid Ad, and (hall be of like force, value and effed, as if they
had been granted under the Name and Seal of the jirchbijhop for the
time being. Where it is alfo farther enaded,
(3.) That if the faid Guardian of the Spiritualties Ihall refufe to
grant fuch LiVf ;?/£•/, Difpenfations^ Faculties^ &c. to any perfon that
ought upon a good, juftand reofon-able caufe to have the fame ^ then
and in fuch cafe the Lord Chynceiioui oi England^ or the L. Keeper
of the Great Seal, upon any complairic thereof made, may dired
the King's Writ to the faid Guardian of the Spiritualties, (during
fuch Vacancy as aforefaid ) refufmg to grant fuch Licenfes^ &:c. en-
joyning him by the faid Writ, under a certain penalty therein li-
mited at the difcretion of the faid Lord Chancellour or Lord Keeper,
that he (hall in due form grant fuch Licenfe^ Vifpenfation ^ Facul-
ty. Sec according to the requeft of the Procurers of the fame, orfig-
nifie into Chancery by a day certain, for what caufe he refufed to
grant the fame : where, if upon fuch Certificate it (hall appear, that
the caufe of fuch refufal was reafonable, juft and good ^ that then it
ihall be admitted and allowed •, otherwife there may ilTue thence by
virtue of the faid Statute a Writ of Injundion, commanding the faid
Guardian of the Spiritualties, fo refufing as aforefaid, to make fuf-
ficient grant of fuch Licenfe, Difpenfation^ &c. by a certain day ^
and if after the receipt of fuch Writ, the Guardian of the Spiritual-
ties Ihall yet refufe to grant the fame, and fhew no juft or reafonable
caufe for fo doing •, that then and in fuch cafe the faid Guardian of
the Spiritualties fhall incur fuch penalty to his Majefty, as fhall be
limited and exprefled in the faid Writ of Injundion^ And moreover
in fuch cafe, a Commifllon under the Great Seal may iflue to Two
Spiritual Prelates or Perfons to be nominated by his Majefty, autho-
rizing them to grant fuch Licenfes^ Faculties and Difpenfations^ as
were fo refufed to he granted by the Guardian of the Spiritualties,
as aforefaid : And what in this cafe is here enjoyn'd to the Guardian
of the Spiritualties during the vacancy of the Archbifhoprick, is like-
vvife expreily by the faid Statute to the Archbifliop himfelf in the
timeofPlenarty, or Non- vacancy of the See. ^
(+•) Of
Of the Guardian of the Spiritualties. 4 1
(4.) Of the Metropolitan, the Dean and Chapter is of common
right the Guardian of the Spiritualties: Of inferiour Bifliopricks
in times of Vacation, the Dean and Chapter of the See is of com-
mon right the Guardian of the Spiritualties, and not the Metropoli- <. r
rand. Yet 5 £. 2. j^^tare Jwpedit, 165. Mmtt. that during the 31 H,/'io.
vacancy of the Bifhopnck of Vurham^ the Archbilhop of Tork^ is admit. Dub.
Guardian of the Spiritualties. And 23 £. 1. Rot. Clmf. Memb. ± 'TE-Bsg.b.
the Prior of Chrifl-Chnnh in ranterbury W2S Guardian of the Spiritu ' f'T '^ "
allies in time of vacation of the Archbifhoprick. Of which Arch- SiouuLin
biflioprick the Dean and Chapter is Guardian of the Spiritualties the time of
in the time of vacancy. Alfo of the Archbifhoprick of Yor\ the ^■^•^r'dever
Dean and Chapter is Guardian of the Spiritualtie? in the vacancy ^i"'"' r'
thereof, and not the Archbidiop of Camrbnry , for that it is a di- Ta2Tdl
Itind Province, not fubordinate to, &c. contra i\H.6.io. Admit. «« tin the
for there a Parfon of the Province of r^^r^had aid of the Aietropo- f^^^^fn-s-
litan Guardian of the Spiritualties of the Archbifhoprick of York , in '^'' 5'^' ^^'
the time of vacancy of that Archbifhoprick «. ^ tfve, ik.T "
In the Cafe of Grange againfl Denny it was faid by Coke^ That of'Roli. Abr.
common Right, by the Common Law, the Dean and Chapter, Sede'^^'^^^-
vacame, of the Bilhop, is Guardian of the Spiritualties, as appears E'^p'-yJ^^'
by Pafch. 17 £. ^.fo. 23. but that now the ArchbiHiops have ufed to ,;:" *
have this by way of Compofition. And in the fame Cafe it was faid Grange vetf.
by Voderidge, That every Archbilhop hath a Diocefe and a Pro- Df«"> S«//?r.
vince, and of his Diocefe he is a Bilhop, and of his Province he is ^^P*
Archbilhop, and within his Province he is to be Vifitor of all the
Churches within his Province : and Sede vacante of any Bilhop with-
in his Province, he himfelf is Guardian of the Spiritualties of ail
the Bifhopricks within his Province: but Sede vacame of bis own
Diocefe, the Dean and Chapter of this is Guardian of the Spiritu-
alties; and that no mention is made in the Books of the Common
Law of any fuch Compofition aforefaid, but that the Guardian of
the Spiritualties is to be according to the difference before put, be-
tween a Provinceand a Diocefe.
(5) The Learned Serjeant Roll in his Abridgment doth acquaint
us out of the ancient Books, That a Guardian of the Spiritual-
ties may Admit and Inftitute a Clerk prefented to him f. That fivE.i.Ror.,
the King did prefent to the Guardian of the Spiritualties of the e 2E.i.Ror.
Archbifhoprick of Dublin (Sede vacante) for a Church in /y«- Par.Mcmb.5.
lands. That the Guardian of the Spiritualties may try Baftar- ^/j/^^' ^^^
dy ^ That Letters were direded to all the Bifliops, and (in 1 21 £1'.
the Vacancy) to the Guardian of the Spiritualties, to make Pray- RocClaufo
ers for the King in his Journey in France K And that the Prior ^^^"^^ i^-
of Chrifi-Chmchm Canterbury, Guardian of the Spiritualties during ^^^^^'
the ^Vacancy of that Archbifhoprick ^ had a Felon delivered to
him
4^
Of Conge d' Eflire,
^ 2gE. I.
Rot. Claufo
Memb. 4.
* Brownl.
Rep. pa. t.
Mich.io.Jac
Cafes in
LaWj &c.
him ^. But in the time of the Vacancy of the Bifhop, the Arch-
bifhop is Guardian of the Spiritualties , and not the Dean and
Chapter K
CHAP. V.
Of Conge d' Eflire, Eletiion and Conjirmation.
1. What Cong^ d' Eflire fignifiei •, the Original thereof.
2. To whom it is direBed^ and the manner of Proceedings thereupon,
and of EleBion.
3 . Coafrmation of Bifhop^ the form or manner thereof.
4. Confirmation in aT^m'^O'czX^ wot Spiritual /^w/ir, what?
5. The Confirmation of Bijhops ele6i beyond Sea^ far different from
this in England.
6. The Law and Practice in France, touching the making of Bifhops,
( i.)/^Onge d' Eflire, in French, Z^eave to chufe^ is the King's
V^ permifiion to a Dean and Chapter to chufe a Bifhop in
«F.N. B. the time of Vacancy*. And time was when this renia EUgendi
159. Term, was alfo the permiflTion Royal to an Abby or Priory of his own
Mh'H R & Foundation to chufe their Abbat or Prior ^ But we now under-
170. BC. ft^nd it under no other fignification than as his Majeflies leave
eirc' ' ' vouchfafed to a Dean and Chapter to eledt a certain perfon to fuc-
ceed as Bifhop of that Diocefe , whofe Epifcopal See is vacant. .
For the better interpretation of this Conge d' Eflire .^ the Modern
Pens refer themfelves to Mr. Guin in the Preface to his Readings.,
where he faith. That the King oi England., as Sovereign Patron of
i all Archbifhopricks, Bifhopricks and other Ecclefiaftical Benefices,
had of ancient time free Appointment of all Ecclefiaftical Digni-
ties, whenfoever they happened to be void: Invefting them firft
Per Baccdum & ^nnidnm^ and afterwards by his Letters Patents :
And that in Procefs of time he made the EUtlion over to others,
under certain Forms and onditions, viz^. That they fliould at
every Vacation before they chufe, defire of the King Conge d- Ejlire^
that is. Leave or Licenfe to proceed to Eledion, and then after
the Eledion to crave the Royal Aflenc, 6^c. He affirmeth alfo by
good proof, out of the Books of the Common Law, that King
John was the firil that granted this; and that afterwards it was
confirmed by Weftminfter i, cap.i. which Statute was made jin. 3.
Ed. I. And again by the Statute \_ArticHli Lleri'} cap. 2. which
was Ordained, Jn. 25 Ed, 3. Stat. 3, it is generally agreed, That
'Che
EkSlion, and Confirmation, 45
the Kings of this Realm were originally the Founders of all Arch-
bifhopricks and Bifhopricks within this Kingdom, being at firft Do-
native p*r tfAditionem Baculi Pafioralis c^ AnnuU : But aftervi^ards
King John by his Charter, 15 Jan. in the feventh year of his Reign,
De cowmuni cenfenfn Barennm, granted that they fhould ever after
be eligible. And from that time came in the Conjee £ EJlire. yid.
Co. 5. far. 14. in Caudrys Cafe. vid. Stat, i Jac. cap. 5. vid. 17 Ed, 3,
cap. 40.
(2.) The Con^i d Eflire being granted to the Dean and Chapter,
they proceed accordingly to Ele^ion , which in the fenfe here in-
tended, as appropriated to this Subjeft, is that Regular Choice,
which is made of an Ecclefiaftical perfon to fucceed in the Office
and dignity of Bifhop, in , and of that Diocefe, whofe See at the
time of fuch Ele(!tion is vacant. This Ele6tion referring to an Epif-
copacy, or the choice of a new Bifhop in a vacant See, is done by a
Dean and Chapter •, but there are alfo other Eledions Ecclefiaftical
relating to a Regular choice of other perfons to other Offices and
Dignities in the Church, fubordinate to the former j but here it is
fpecially meant of fuch an eledlion or choice of a new Bifhop, as is
precedent to Confirmation , Confecration and Invefture or Inftal-
me^t, being made (as aforefaid) by the Dean and Chapter of a Ca-
thedral Church, by virtue of the King's Licenfc and Letters Miflive.
according to his Majefty's^ Nomination and pleafure, contained in
fuch Letters MiiTive , in purfuance of fuch Lrcenfe to ele<ft, undci
the Great Seal oi England \ which Eleftion betng made accordingly,
the Dean and Chapter are to return a Certificate thereof under their
Common Seal unto his Majefty. This Election alone and of it felf,
be it to an Archbifhoprick or Bifhoprick, if the perfon eledled were
before the Parfon or Vicar of any Church Prefentative, or Dean of
any Cathedral, or held any other Epifcopal Dignity, doth riot ipfo
faBo make void in Law fuch former Benefice, or Dignity, or Dean-
ry, becaufe he is not complcat and abfolute Bifliop merely by fuch
EleBion, but onely Bifhop eUB ^ And an Eledion onely of fuch one ^
to a Bifhoprick, who had before a Benefice with Cure, or any other pj^z. tk.' ^
Ecclefiaftical Dignity or promotion, doth not make a Celfion there- Brief. 25.
of <=. And it hath been adjudged, that a Commendam retinere made *• Trin.
to fuch a perfon of fuch a Parfonage. Deanry, or other dignity Ec- » » J'^* C B.
clefiaftical, which the faid Parfon had before his Eledion to the Bi- {"/ g' ' ^^^
ihoprick, is yet good to him notwithftanding fuch Ele(^ion, and fo covent^ry Sid
remains good to him until his Confecration <^. Lmhjidd,
(3.) Confirmation hath various fenfes according to the different ^"^.Rep. &
Acceptation of the word-, but here it is mainly intended for that, ^J^'^^y"'*
which in order to an Invefture of a Bifhop, is done by the Arch- Cik^ lajc^^
biflA)p or Metropolitan of that Province in which a Bifhoprick is Rep!
S void.
44 Of Conge d' Eflire ,
void , and unto which a new Bifhop is to be invefted , with fuch
< vid. Stat, ufual Benedictions and Ceremonies as are requifite to the fame ^.
25H.8.C.20. Note, That before an Archbifhop, or other Bilhop, is confirmed,
confecrated or invefted, he muft take the Oath of Fealty unto the
King's Majefty onely, after which the King, under bis great Seal,
doth fignifie his Eiedtion to one Archbifhop , and two other Bi-
fhops ; otherwife unto four Bifliops within his Majefties Dominions,
thereby requiring them to confirm his Election, and to confecrate
and inveft the perfon eleded. After which Confirmation and Con-
fecration he is complete Bifhop to all intents and purpofes, as
well to Teraporalties as Spiritualties. And now he hath flenam po-
tefiatem tarn J Hrifdi6tionis quam Ordinis ;, and may therefore after his
Confecration certifie an Excommengment ^ and upon his Confirma-
» i8Eliz. tion the power of the Guardian of the Spiritualties doth ceafe ^,
Dyer 350. and a Writ for Admiflion of a Clerk to a Benefice, awarded Epifco-
g 22E. j.i^.pf) eleSio & confirmato^ hath been held to be good s. Likewife the
King may by his Letters Patents, after fuch Confirmation and be-
5* 41 E. 5. <5. fore Confecration grant unto fuch Bilhop his Temporalties '', which
& 46 E.3.22. Grant from his Majefty is held to be potius de gratia quam de jure •,
but if the Bilhop of one Diocefe be tranflated to a Billioprick in
another, there needs no new Confirmation oi him. In the Canon
\_de Confirmatione Epifcoporuni} of Othobon\ Conftitutions, it is or-
Othobon.de d&'inQd in h^c verb a^ viz. ZHt, cujus EleElionisEpifcopalu Confirmatio
Confirm. Ep. pojiulatur^ inter c*tera fitper qnibus Inqnijitio & Examinatio pracedere
cap.mic. debet fecundnm Canonttm InfiitHta : illnd exatiiffime inqn'raxur^ utrnm
■plnra Beneficia cum animarum cura^ qui eleEius e(t^ antequam eligeretur^
habuerit :. Et fi habuijje invcniatur^ an cum eo fuper hoc fuerit difpen-
fatum : Et an. DifpenfatiOj ft quam exhibuerit , vera fit^ & ad omnia
beneficia^ qu£ ohtinuit^ extendatur. Et f in aliquo Tramifforum^ is ad
quern. Confirmatio fpe^aty Ele^um deficere fua difcujfione compererit :
eidem rjullatenus rrmnm Confirmationis impendat.
(4.) There is alfo Confirmation of another kind, ard far remote in
fenfe from the former, not of any Ecclefiaftical confideration, nor of
any Affinity with the other, otherwife than nominal, and that is the
ratifying or confirming of an Office, or an cftate in a Place or Of-
fice, to one who hath or formerly had the pofleffion thereof by a
^wefl:. good Title, but voidable, though not a(flually and at prefent void.
Symb.par. I. To explain this-, A Bid op grants his ChanccUourfhip by Patent
^^^'%^T?*R ^° ^"^ ^"^^ ^^^'^ ^^ ^"'^ Natural life : this Grant is good to the Pa-
fo^is^.b. ' tentee, and noc in it felf void^ yet upon the Biffiop's death it is
22<5. h. 271. voidable, unlefs it be corroborated and ratified Dy the Confirmation
d. 167,. g. of the Dean and Chapter '. This is not the Confirmation here in-
Lkr.iib. 5. tended, but the Confirmation of the Eledion of a new Bifhop in
^' ^' order to his Confecration and Invefturej which though heretQibre
was
EkSliony aid Confirmation, 45
was by the Bidiop ofRome^ when he claimed a Spiritual Jurlfdi<fli-
on in this Realm ^ yet now fince thQ, Stat, of 25 H. 8. c. 20. the
fame is at his Majefty's Command performed by the ArchbiOiop or
Metropolitan of the Province wherein fuch Biflioprick is void, and
two other Bifhops ;, otherwife by four fuch Bifliops within his iMa-
jefty's Dominions, as to whom under his Broad Seal, he fhall figni-
fie fuch Ekdion, com^andiAg them to confirm the fame , as .alfo ^
to confecrate and inveft the perfon whofe Election to the Bifliop-
rick is fo confirmed as aforefaid. ....V.vCi^ -
(5 ) The Confirmation of the Ekdion of Bifliops to vacant Sees
according to the Canon Law, and as pradifed in fuch Kingdoms
beyond Sea , where the Pope doth claim and exercife a Spiritual
Jurifdidion, is, as to the mode and folemnity thereof, quite ano-
ther thing to what the pradice is with us in this Realm.
(6.) In France^ though the Nomination of a Bifliop to fucceed in
a vacant See belongs to the French King, yet if he doth not nomi-
nate within fix or nine months next after the death of the former
Bifliop, Jtis devohttHm eft ad Papam ^ • if a Biflioprick be there void, " Cap. ne pro
be it qitomodocunqHe^ whether by Cefljon or otherwife, the Law fjjeaks dejeiiu de
indefinitely in that cafe, the King fliall nominate in France who fliall ^^^^^' ^- ^' ^^
be the new Bifliops but then he mufl: nominate within fix or nine Tf'f'^'
m6nths, which being elapfed, and rio Nomination, he cannot af- ScL.dJL
terwards nominate, Namjpts eft ad Papam devolutum : nee poterit pur- gia Nomina.
gare rnoram \ Fox the Law in that cafe and in that Kingdom is, P"- ^^^uft-
t\ut 'Nomnati<we non faEla intr^ fex menfes^ devolvithr nomwmo & f fTif y*
plena difpojtiio Epifcqpatns ad Papam. As alfo appears' in that remar- ee in d^
kable Cafe, controverted touching the Confirmatipn of .tfie Eledion, cap. 2. dV
Ad Epifcopatum Mppamiarum ; for upon the death" of Cardifial de AL- ""^^U- ^' ■«''
W, An. 1520. 10. Dec, that Biflioprick became void^ whereupon ^•"'^•
the Canons o^that Church convened, and proceeded to the Eledion
of a'^ew niflio^ and chofe D. Bernard de Lordat, who being elec-
^ed;^ Implied Jiimfelf Archiepifcopo Tholofano, taKquamfuo. Metropoli-
tano:;:frliem Vtcariis fuis^ for the Confirmation of his FJedioji, which
was done accordingly j to which Coftfir/nation the Procurer Regisu
was not called, who appealed from the faid Eledion and Confirma^
tion^ alledging that the Nomination to the Biflioprick belonged to -
the King, who nominated D. John de Puis, to the Popev whereupon
the Pope granted the faid Biflioprick to the faid John de Puii, who
by the B nils and proxies of the Pope t;ook poflTeflion thereof From
all which Appeal was again afterwards in fupremam Curiam^ be-
tween de Puis and Lordat :, but de Puis obtaining another Biflioprick,
the Procefs on the Appeal was extind, and Lordat by a Definitive « Rebuff
hnd tiji gPfleffionj of th?, ^d Piflioprif^H^f ?^r»»i^>tp bini "". «^^' f'^r^-
S 2 CHAP.
^6
CHAP. VI.
Of Confecration.
t. What Confecration fignifies), the ancient Rites and Ceremonies
thereof under the Laxv ^ who they were to whom it belonged.
2. Confecration^ as fpecially applicable to BifJjops.
3. Jin ancient Canon touching the confecration of Churches.
4. The Form of confecration of Churches by the Juftinian Law^ the
Rites and Ceremonies therein ufed by the Greek and Latin
Churches,
5. Confecration of Bi^ops how necejfary by the Imperial Law^ Confo-
nunttothe pradice of the Greek and Latin Churches.
6. Confecration of Bijhops is Charadter Indelebilis at the Common
Law.
7. Who fir ft confecrattd Churches ; rt>ho firft took, the flyle of Pope ;
Thi Original of Gxtdfathers and Codmdtherj in Baptipti.
8. /w caft of Traiifations of Bifhops no need of new Confecrations \
Rtquifites to Creation and Tranjlation of Bifljops according to the
Common Law <?/ England.
( I. )/^ OISISECRATION here chiefly refers either to Bi-
V^ fhops or Churches : The Civil as well as tanon Law takes
« L. -^.Ji nxjtice of both ». It llgnifies a Dedication to God-, Juftinian in
qumdo, cde his Novels makes ufe of the word, thereby fignifying an Impoftion
Bon. vac. t(y of hands ^ : For in this manner ( fays that Book of great Antj-
ptd^'nda ^'& ^"^^y > intituled , nPASEisro. n AnosroAQN) began Bi-
Jul. Patric. Aops to be confecrated. It is a kind of Separation of perfons Ec-
?n VerCjon. clcfiaftical from the Laity, and of things facred from propiiane,
^7'n' ^ ^ ^^^ ^^'^ efpecial ule and lervice of God. The word in the Hebrew
diii.hDv.6. (jgnjf^^g ^ fUing of the hand^ thereby intimating, that under the Law
ifl the Confecration of any, there v/as a giving them, or Putting into
their hands things to offir, whefeby they were admitted to their
^ EKod.29.9. Prieftly Office <^. In this Confecration the holy Undtion was ufed,
* I King. 19. or the holy Oil, or holy Ointment, which was not to be applied to
iKinei^sQ. ^^y prophancor Civil tiie, bat to be appropriated to the Sons of
& I Sam". 16. -^rm ^ onely whereas Kings Were and are to be anointed, that is to
3a.Pf.80.20. be underftood, as by fp&cial command from God ^ , as an Excep-
tion to the Sacerdotal pradice , and as a confecrating them to the
Government •, in relation whereto a King is a mixt perfon under a
double capacity, EcclefiafHealtvt& CivH^ as next under God the Su-
preme in Church and State within his own Dominions. Aitd al-
though
Of Confecration. 47
though under the Levitical Law there was an anointing Oil, com-
mon to the High Prieft, with the inferiour Priefts « ^ yet the High • Exod. 29.
Prieft had a Confecration peculiar to himfelf , which was by the so-
pouring out the precious Ointment upon his head ^. In imita- 1.^^!-^' '^•
tion whereof are Kings at this day anointed to the Regal Autho- p^3° ,",^J'/'
rity. • iS' '
(2.) The import of this word ^Confecration '2 as pradicable in
all Ages, fpecially refers to Archbiihops and Bifhops, and with us
confifts in certain Benedidions and Ceremonies peculiarly requifite
thereunto j And when after Eledion and Confirmation the perfon
is confecrated and invefted, he is then compleat Bifhop, as well to
Temporalties as SpiriLualties, and then the power of the Guardian
of the Spiritualties doth ccafe. Being confecrated he may confer
Holy Orders upon others, and may confecrate Churches and Cha-
pels, which before he could not. Anfelm^ Archbifhop oiCamerbH-
ry^ deprived divers Prelates for receiving Inveftureof King H. i.
but after they were reftored ex gratia^ Speed ^36. The Roman Sy-
nod made a Canon, that Invefture belongs to the Pope ^ yet H. i.
ufed to give Invefture , as he did to Ralphs Archbifhop of Canterbu-
ry. Sp. 440. b.
(3.) Touching the Confecration of Churches, the learned Sir H. *
Spelman makes mention of a very Ancient Canon made by the Sy-
nod \[t\^ 2Lt CdUhyth in the Year 816. under W'«//rf^, Archbifhop ce//f/jy?i&*.
of Canterbury^ and Prcfident of the faid Syvod, Kemdph ^ King of
Mercia^ being thereat alfb perfonally prefent j The Canon is to this
purpofe, viz. Wherever a Church is built or ereded, let it be fan^ified
by the Bijhop of the proper Diocefe : Let it have a BenediEiion from him-
felf ^ and be fprinkjed with Holy Water , and fo be made a conipleat
Ciourch^ in fuch manner as is prefcribcd in the Minifienal Book: Af-
ttrraards let the Eucharift:, vhtch is confecrated by the fame Bipjop^ be
together with other Reliques^ repofited and laid up in a Cheft^ and kept
Mnd preftrved in the fame Church. And we ordain and command^ that
every Bifhop take care that the Saints^ to whom their Churches are dedtca- ^ ff"^' ,
teJrefpeUively^ be painted on the Church-walls, or in Tables^ ^'^ '^ '^-^^ Celichyth*
Alters ^. Can,z.
(4.) The Emperour Juftinian in his care of the Church, hath
prdcribed a Form of Confecration thereof in this manner, viz..
his .Law is, That none (hall prefumv to ereSt a Churchy untill the Biflwp.
of the Diocefe hath been firfi acquainted therewith^ and fliall come and
lift Up his hands to Heaven^ and confecrate the place to God by Pray- '' Auth. dj
er : and ereCl the Symbol of our Salvation^ viz. the venerable and fr«- "^^"^f^'^ §•
ly precious Rood ^. likewife amoiig other Ceremonies of Confe- eoij/f.'vid.
crating Churches, the laying ef the firft Stone v\as of Ancient ofe Novell. S23.
if| the ^T'cek. Church , a« may be obierved out of their Enchologue^ 131-
where
4 8 Of Co?i[ecration.
where it is faid , That the Bijhop , after fome other Ritet performed ,
jiundmg in the palace where the Holy Altar flidl he fet , fahh certain
Fruytrs, which being erided^ he gi'veth the Ite MilFa eft, and then taketh
Hp one of the Stones^ and having cut a Crofs upon it^ himfelf mth his
own hands layeth it npon the Cromdwork^^ as thefrfi Foundation- ftone ;
then he pronounceth the 'v^i^s^iKicocnv c'.Ct,'v, &c. and fo the Workmen be-
gin the building. The like Ceremonies are ufed in the Latin Church
at this day at the Confecration of Churches , as appears by their
• Pontificals, pontificale i i There is this farther touching the Confecration of
pag. 281. K'" Churches in the EnchologHe of the G^-^fi^ Church , Ihat the Bijho^
An 5<6< ' having on his Formalities^ fnmeth the Ground-work^ or Foundation with
his Incenfe Ctrcular-wife , then the Singing'men fay a kjnd of Collect
for the Saint to whofe Name the Church ts dedicated^ and fome other ■>
Services as the Chaunter Jhall appoint. So that although the Patron
might chufe the Ground, yet the Prelate was to come and confe-
crate it ^ the Patron might bring the Scones, but the Biihop laid
the Foundation ;, the Workmen might with the Materials make a
Houfe, but the Biihop by the Confecration made it a Churchy It
was but the dead body of a Temple, till it received the being of a
Church by the influence of the Diocefan. Thence it was that the
privilege of a new Church followed not the Building, but the Con-
fecration thereof, as was well obferved by that Devout and Learned
King Alured in the fifth Canon of his Ecclefiaflical Laws., where he
faith. That if a man purfued by his Enemy flie to the Temple^ no man
fnall thence take him away for the fpace of /even days ; which Law Was
yet made a Caution, That this freedom Jliall not be granted to any
Churchy but fuch ai (hall be confecrated by the Biihop. ' . • 4
(5.) Confecration relating to the perfon, office and dignity of a
Biihop (as in the former part of this Chapter) was by the Imperi-
al^ law fb neceffary to the making him a Bifliop complete, as that,
without it his Eleclion and Confirmation would not have entituled
him to any Church that Ihould be new ereded within his Diocele^
whereunto he being confecrated, had a right and Title ^ as is evi-
dent not onely by the Emperours Novel , but alfo more peculi-
arly acknowledged by the s/t/^^?-'^";"^'' , or the fetting up of the
Crofs behind the Altar when he made the Confecration. Thus
the Euchologue for the G'rf cj^Church. The like alfo is obferved in
the Latin., where the Ceremonies are more tedious and elaborate.
By the fetting up of the faid 2'UpoW;/oj', the Right of the new.
Church was conveyed to the Patriarch or Bifhop as by an efpecial
Title, p.nd that not onely by the Eucholoo^ue in the Greek.-^ but alfo
by the Emperour's Novel in the Latin Church •, Concerning which
Right,- and the conveyance thereof by the 2Vfo^.>9f,,. obfer-
vable to this purpofe ts that S5 nodical Sentence giv^n by Ger-
manm
Of Confecration, 4^
fnanus^ Patriarch of Conflantinople ^ againft John Archbiniop of « ]xx%Qxxc
Lepanto^ touching certain Epifcopal Monalteries , whereon he Lai To. r."^*
had illegally fixed his Crofs under pretence of a Right to the Synod, i.
fame'^. 232,235, Scc
((5.) This Confecration, fpecially as it refers to Bifliops, is Cha.
raBer indelebilis^ infomiich that although it fhould fo happen, that
for fome juft caufe he fhould be depofed or removed from the See,
or fufpended ab Officio & Beneficio^ both from his Spiritual jurifdic-
tion, as to the exercife and execution thereof, as aifo from the
Temporalties and profits of the Bifhopri<:k ^ yet he flill retains the
Title of a Bilhop, for that it is fuppofed the Order it felf cannot
abfolutely be taken from him 1. King H 1. baniihed Thurfian^ ' 2r h. ^. 3.
Archbifhop of Tork.-^ for five years , for receiving Confecration ^y ^^f^rkham,
from the Pope, Speed 440.^. 458.^.
(7.) l£ appears by good Chronology, that the firil that ever
confecrated Churches was Enginus^ who was a Greek^^ and Priefl: of
'B.ome^ and was the firft that ever ftyled himkXi Pofe^ An, 154. who
wrote de Trinitate & Vnitate Dei. He was th*e firft that decreed, „, .,,
that Churches fliould be confecrated, with the confent of the Me- chrifp. ;S5
tropolitan or Bifhop •, and that there fhould be one Godfather, and acs. Scat.
one Godmother at Baptifm '". Ephem.
(8.) In a Cafe of Tranflation the Bidiop need not to be confe-
crated de mm ^ as in Cafe of Creation ". Anciently and accor- "CafeEv^w
ding to the Canon Law, and where the Pope's Spiritual Power and ^ M<i<>^gh'
authority was in force, Bifhops were not fo much by EUSiion as by ^^^^' ^^'
Tofldation^ and then the faying was EleBus PojhuUndo^ & Pofidattu
ohligando-^ and in that cafe the Eleded was a Bifliop prefently, with-
out either Confirmation or Confecration, onely by the Affent of the
Superiour o. Before Confecration the Bifhop hath not actual pof- ° Sum. Ro-
fellion, although he hath a Freehold in Law afrer Confecration : ^eil. Poftula-
But in cafe of Tranflation there is not any new Eledion, nor may ^°\^p^l
the Dean and Chapter pray a Conge d' Eflire but they fignifie to the n^-^^X.
King how their Bifhoprick is void, & ideo hnmilltme pofi nlamus ^. io6^
Humbricenfem Epifcopnm fore Epifcopum noftrum^ and that is called,
Tofiulation ^ and then if the King grant it, he is the Bifhop. Trin,
1 2 Jac, B. R. Sir Jo. Faiighms Cafe verf. Afcough^ Roll. Rep. Pofl^u-
latio efi alicitjtis perfontz ad dignitatem^ vet Societatem Fraternam^ C(t-
nonicafafla vocatic : vel efi per fan <z^ qu£ eligi non potefi^ ad eligendum
fetitio. Cap. innottitt^ § habito. de EleU. The Bifhop of Saint F.
was chofen Bifhop of Trevers ^ and had the Aflent of the Pope,
and when he came there , he found another in poffeflion •, where-
upon he would have returned to his former Bifhoprick, but could
not, becaufe it was void before by the confent of the Superiour.
Anri in the Cafeof£x'<««i and AfcoHgh,, it was faid. That a Btflwp
hath
r o Of Confecration,
hath been fummontd to Parliament before his Confirmation •, but, as Jones
there faid, That was after bi^ Pojfefflons or Temporalties mre reftored
to him. And Calthrop there faid, That in the Cafe of TranJIation of
a Bifhop there are five things to be performed^ i. The Chapters Inti-
mation of the death of their Bifhop^ F^J^']^ Cong^ d' Eflire. 2. Con-
g^e al eux d' Eflire. 3. A Certificate of the Eledion. 4. The Affent
of the Sijhop and the King. 5. The Writ to the Archbishop to confirm
and infiaU him ^ becaufe in fuch cafe of Tr an fiat ion he fiiall net be confe-
crated de Novo, m aforefaid. But Confecration is necefiary to the
making of him a Bilhop who was none before, and is the fourth
A<5t in order to a Bifhop, according to the enumeration of thefc
fteps and degrees thereunto, which in the faid Cafe of Evans and
Afcotigh is mentioned h^ Whitlock,-., where he faith. That in the ma-
king of a Bipjop when a Bijhoprick^ij veid^ the cotirfe is^ i To obtain d
Conge d' Eflire. 2. The King's Letters Mijfive^ whom they fija/lchnfe.
3. Vpon the EleEiion three Infirnments thereof \ one whereof to the party
Ele^ed^ another to the Archbifliop^ a third to the King, certtfywg him
of the ELeSbion^ and then there is an aSl of AJfent to the Ele£lion, which
cannot be without his Ajfent, 4. The King's Writ to the Archbifiiop to
confecrate and infiaU the perfon ele£led. 5. Then the Archbifiiojf ijftsts
forth a general Citation , and therein doth prefix a certain day for the
Confirmation, which is done accordingly, and then he is confecrated. Then
the new Bifliop Swears Fealty to the King, which being done, the
King orders him his Temporalties: fo that there are three princi-
pal Ads required to the making of a Bifliop •, The EleSlion is as the
Solltcitation, the Confirmation is tYlQ Cor,tra5h , the Confecration is the
Confummation of the Marriage : Anfwerable whereunto, faid Dode-
ridge in the Cafe aforefaid, are the Ad:s of making a Parfon: As
I. Prefentation^ whereto anfwers the £/^^io« of a Bifliop. 2. Ad-
mijjion, to which Confirmaticn zniwcis 3. Infittutton, which is as
the Confecration ; and IndnBion as the Refiitution of the Temporal-
p In din. ^i^sP. The Spiritual Marrirtge between the Church and the Bi-
Cafe Evans fliop initur per EleEiionem , comrahitHr per Confir*mtionem , & con-
5^ k{co\xg\\. fnmm At ur per Confecrationem; and the Rflitution of the Tempo-
ralties is as the bringing home of the Wife.
CHAR
51
CHAP. VII.
Of Deans and Chapters*
1. What a, Dean is^ why fa called '^ what Dean and Chapter f^nU
fies J and what Deans Rural are.
2. The Divifion of Deans according to the Civil and Canon Laws ^
a Qneftion in Law touching the Veanry of St. Martins.
3. Two ways of creating Deans «, and in what other fenfes the word
or fiyle of Dean is afflicable.
4. Four forts of Deans according to the Law of the Land.
5. The patronage of Deanries is in the Crown.
6. 'the Dean and Chapter of » Cathedral^ is a Corporation Spiritual,
7. ji Deanry conftfts of two parts ^ The difference between a Dean^
Prebend and Par [on j and that Deanries and Archdeaconries are
Ecclefajlical dignities.
8. Chapter^ what ^ the fever al acceptations of that Word.
9. The difference between Gapitulum and Conventus in the Canon
Law.
10. The defcription of a Chapter as to their Conftitution and Gq"
vernment,
1 1. Whether one Bijloop may have two Chapters ?
12. Whether the Leafe of a Parfonage in one Diocefe^ annexed to a
Prebend in another^ made by that Prebend^ be good without the Con»
frmatton of that Bijhop in whofe Diocefe the Parfonage is f
(r I. ) "T^f A N ( /mv©- i M^i^ decern) i$ ' an Ecclefiaftical Ma-
U giftrate . Co called , becaufe anciently he prefided or
had power over Ten Canons or Prebends at the leaft. Sed di-
cuntur Decani Rurales^ eo quod Decern Clericis five Parochiis preflnt,
Secund. Papiam^ Lindw, de Conflit. verb. Decan. Rurales gloff. Dean
Rural^ becaufe he ufually had charge over Ten Countrey Parilhes,
Anciently alfo called Archtpresbyter, becaufe other Presbyters were
under his charge. Here in England he is commonly called a Dean.
who is next under the Biihop, and chief of the Chapter ^::d\zz-
riiy in a Cathedral Church, the reft of that Ecclefiaftical Society or
Corporation being called Capitulum.^ the Chapter. Dean and Chap-
ter is a Body Corporate Spiritual, confifting of many able pcrfons
in Law, viz.. the Dean (who is chief) «nd his Preberds, and
they|together make the Corporation. And as this Corporation
T may
52
Of Deajis a?id Chapters.
Ayd del Roy
log. per.
Thorp.
^ Ibid. per.
Fif.
eD. loEl.
273.37-
" Ibid.
M4H.8.
g.b.
'itE.?.
4c. b. per
Faming.
S 40 E, 3.25.
may joyntly purchafe Lands and Tenements to the ule of their
Church and Succeflburs : fo likewife every of them feverally may
purchafe to the ufe of himfelf and his Heirs. After the death of
a Prebend^ the Dean and Chapter lliali have the Profits a : And
after the death of a Dean of a Free Chapel belonging to the King,
the King fhall have the Profits of the Demry ^ for it is at his plea-
fure whether he will collate a new Dean to it ^. It is likewife
held, that a Veanry is a Spiritual Promotion^ and not a Temporal^ by
all the Judges ^ : And if the Nomination and Patronage of a
Deanry be at the appointment of the King, his Heirs and Succef-
fours, and he appoint a Dean., yet it is a Spiritual Promotion '^,
The King makes the C orporations of Dean and Chapter «. The
Chapter of the Biihop confifts of a Dean as the chief, and of the
Prebendaries-^ or the like, which are commonly called the Chapter ^ .
As to the Bifhop and Chapter, which are but one Body, their pof-
feffionsare divided, fo as the Bilhop'hath a part for himfelf, and
the Chapter the refidue e. And their poneflions alfo for the
Coke 3. Rep. moft part are divided, the X)r4« having one part alone in right of
75-b. jjjs Dganry^ and each particular Prebendary a certain part in right
of their Prebends : the refidue the Dean and Chapter have alike •, and
''17E.4. each of them is to this purpofe incorporate by himfelf*". In
1^' the Cathedral Churches of St. Davids and of Landaff there never
Is E 5^ hath been any Dean^ but the Bifhop in either is Hea"d of the Chap-
f.N.'bI 1/5. ^^^ '•> 3"^ ^" ^^^^ Biihop's abfence, in the Chapter at St. Davids and
at Landaff^ the Archdeacon. There ate alfo fome Veans in Eng-
land without any Jurifdid;ion, onely for Honour fo fly led •, as the
Dean of the Chapel Royal ., and Dean of the Chapel of St. George
at IVindfer : And fbme Deans there are without any Chapter^ yet
enjoying certain Jurifdidions, as the Dean of Croydon., the Dean
Coke 3. Dean of Battel^ the Dean of Bockin^ &c. In the Cafe of the Dean and
^'fJ^^^jr^ Cl>rff»fd!r oi Norwich it is-faid, Thai in Chrifiian Policy it was thought
Cife^Ao & ' neotjfary^ (for that the Church could not be without Stds and He-
41 Eliz,. reiies) that every Bifljop Jliould be afpfied with a Council^ viz. a Dean
and Chapter., (i.) To confult with them in deciding of dijficdlt Coritro-
verfies of Religion '., to which purpofe every Bi/hop habet Cathedram.
(2.) To confent to every Grant the Bifhop (hall make to bind his Sttccef-
fours y for the Law did not judge it reafcnab/e to repofe fitch confidence in
him alone. At firft all the PoilelTions were to the Bifhop, after-
wards a certain portion was affigned to the Chapter-, therefore
the Chapter was before they had any PoflefTions, and of common
« Lindw./ro right the Bifliop is Patron of all the Prebends., becaufe their Poflef-
€lni}it"vefb ^'^"^ ^^^^ derived from him : So that fo long as the Biflioprick
perDt'anos continues, the Dean and Chapter (being his Council) remains,
Rurales. This word \iDean2 is diverfly ufed by Lindwood'\ who fptak-
Of Deans and Chapters, 5 5
ing of Dean- Rurals ^, he defcribes them to be certain perfons that '' Decretal.
have certain Jurifdidion EcClefiaftical over other Minilters and Pa- P'^^\\deoffic.
ri/hes near adjoining, affigned unto them by the Bifliop and Arch- oeanRurah
deacon, being placed and difplaced by them : Such are the Dean of whar. Decani
Croydon in Surrey^ the Dean of Battel in /Cf«/-, the Dean of Bar inn Ruralesfmt
in C&rnwall., &c\ Thefe Deans Rural are Decani Temporales^ con- D^'-'^fi Tem-
ftituted to feme Minifterial Fundtion under the Bifhop or Archbi-^/'^^yJ/^.-
lhop *. They are certain Eccleiiaftical perfons having certainjLmw?/«r'
OiTices commonly belonging to the Bifliop and Archdeacon, and Epifcopo vei
therefore to either of them belongs the receiving or removing o{ ^^^l^i^pif<:'>P»
them j and their Office is temporal, not perpetual, as is the Office ^f^'J^'"^^'"
of the Deans of Cathedral and Collegiate Churches , and other UndJeConli.
Churches quibii^ perpetno intituUmHr l. ' c. i . Giof}: in
(2.) The Civil and Canon Laws do chiefly take notice but of''^^'fb,Decan.
three forts of Deans ^ the one, he who is impower'd and fee over f J'/^^*
Ten Souldiers ■". Another, he who is called Dean Rural ^ ^^Thevwere^'
aforefaid ". The third is, a Dean of a Cathedral or Collegiate anciently cal-
Church , as abovefaido. There is alfo the Deanry of Sr. Martin ied, Tejles
le Grand ^ London^ concerning which Lindwood puts the queftion ^^^y>^°^ales.
Whether it be fuch an Ecclefiaftical Benefice a6 in efftB may incur fuch j,^^^'^^
penalties^ m may poffihly happen to other perfons Beneficed ? And after Uecan. Rtir.
deep inquiries into the Laws, Precedents and Antiquities foreign •" c. de De-
and domeftick , with very deledable variety of great Learning <^^ni«> '-12.
hinc inde argumentatively, and pro & con impartially, at lafl doth^^y^^*"^
conclude it in the Affirmative, Lindw. Conftit. tit. de Cohah. Cleric. cennl^'c.^um
& Mul. C. fit Clericalis.^ verb. Bcneficiati. Apqflolw.
(3.) As there are two Foundations of Cathedral Churches in °Exer.c/e
England., the Old and the New :• (the New being thofe which King fPP-J^:. ^''^<^'^-
H. 8. upon the fuppreffion of Abbies, transformed from Abbat or ^'^ ^ "^'
Prior and Convent, to Dean and Chapter) So there are two ways or
means of creating thefe Deans •, for thofc of the old Foundation
were raifed to their dignity much like Bilhops: the King firft K-
fuing and granting his Conge d"* Eflire to the Chapter., the Chapter
thereupon making their EieAion, the King then yielding his Royal
aflent, and the Bifliop confirming him, and giving his Mandate to
inftall him. But thofe of the New Foundation are by a much flior-
ter courfe inftall'd by virtue of the King's Letters Patents, with-
out either Eleftion or Confirmation. Deans of the Old Founda-
tion (before the fuppreffion of Monafteries ) arrive to their dig-
nities much like BiOvops;, But Deans of ihe New Foundations (up-
on fuppreffion of xAbbics or Priories, transformed by H. 8. into nean
and Chapter) are by a fhorter courfe inlualled by virtue of the King's
Letters Patents, Without EleUiion or Confirmation it Was f'.id by EIo-
hart f n Briggs Cafe, that a Dean as^d Chapter are a Body Spiritual, and
T 2 annexed
54 Of Vea?is a7id Chapters.
annexed to the B^jhcp throughout all England, Brigg's Cafe in Winch,
Rep. The iaiii<: wotd is^alfo applied to divers that are the chief
of certain peculiar Churches or Chapels, as the Dean of his Ma-
jefty's Chapel , the Dtan of the Arches , the Dean of St. George\
Chapel mWindfer^ &c. Nee Collegia altcni pr£feEii^ ncc jHrifdiEii-
one ulla donati\ Nomine tamen velut honoris gratia Infignes^ fays the
Learned Splman.
(4 ) Each Archbifliop and every Bifliop hath a Dean and Chap-
ter •, and whereas it was formerly faid, That the Civil <i«^ Canon
Laws do chiefly take notice but of three forts of Deans^ it is manifeft,
that there are four forts of Deans or Deanries, whereof the Laws
of this Kingdom do take knowledge. The firfi is a Dean wha hath
a Chapter confifting of Canons and Prebendaries, as aforefaid,
fubordinate to the Bifhop, as a Council afliftant to him in matters
Spiritual relating to Religion, and in matters Temporal relating
p Co. par. 5. to the Temporalties of his Bifhoprick p. The fecond is a Dean who
Cafe Dean hath no Chapter, Prefentative , having Cure of Souls ^ he hath a
andChap.of pg(-y|iaj.^ and a Court with Ecclefiaftical jurifdidion therein^ he
mrwich. jg ^^^ fubjed to the Vifitation of the Ordinary : Such is the Dean
of Battel in Suffex^ a Deanry founded by WtlUam the Conquerour in
memory of his Conqueft ^ who though he be prefentable to the Bi-
ihop by the Patron, and admitted to the Deanry by Inftitution and
. Indudion by the Biihop of Chichefter^ yet is exempt from his Vifita-
tion. The third is, whofe Deanry is not Prefentative^ but Donative,
nor hath he cure of Souls, but is oneiy by Covenant or Condition ^
he hath a Court and a Peculiar, holding Plea of matters Ecclefiafti-
cal arifing within his Peculiar over divers Pari(hes. Such a Dean
conftituted by ccmmiffion of the Metropolitan, is the Dean of the
Arches f the Dean of Backing in EJfex^ and divers others. The fourth
is the Rural Dean aforefaid, having no abfolute judicial power in
himfelf, but is onely by the diredion of the Bifhop or Archdeacon,
to order and prepare Ecclefiaftical affairs within his Deanry and Pre-
ciiKft •, the power of thefe Rural Deans is at this day nigh extingui-
Ihed by the Office of the Archdeacon and the Bifi^op's Chancellour j
yet in fome parts of this Realm ic is ftill in force.
(5.) Of thefe four forts of Deans^ the firft, as was faid, hath
a Chapter, being an Ecclefiaftical Governour Secular over the
Canons and Prebendaries in the Cathedral Church, as the Dean
of Canterbury , • St. Pauls , &c. The Patronage of all which
Deanries is in the Crown, and doth nor belong to any Subject.
Alio, the new Deanries (as was formerly hinted) which were
tranflated from Priories andCovents, or were after the diflolution
of Abbies and Monafterics Founded by King H. 8. or Other Kings
©C this Realm, are now Donative, and the Deans thereof arf. by
Of Deans and Chapters, 5 5;
the King's Letters Patents Inftalled: but the Ancient Deans of
Chapters are (as Biihops) by a Conge d' Eflire^ and are after con-
firmed by the Biihop.
(6.) The Vem and Chapter oi Canterbury are, during a Vacancy of
that Archbiflioprick, Guardians of the Spiritualties, to whom the
Stat, of 2 5 /i/. 8. o( Difpenfations^ giveth power of Difpenfition when
that See is vacant 1. The Dean and Chapter of any Cathedral make q Colt. and
a Corporation Spiritual, and at the Common Law challenges are al- Glover's cafe
lowed where the LTue concerns a Corporation, and they to make JJ*"^* ^'^^ ^^■
the Panne], or where any of their Body are to go on the jury, or any i,e^fr°and
of kin unto them, though the Body Corporate be not dire(ftly a par- Lkhfieh.
ty to the Suit : A Dean and Chapter bringing an Aflize, a Juror was-Hob Rep.
challenged, becaufe he was Brother to one of the Prebendaries r, and "" ^^^- »5 £•
the challenge for that reafon allowed ^. If a Dean take an obligati- jg'^' ^^^^'
on to him and his Succeflburs, it goes to his Executors-, which holds J,! ^' '^'
true alfo as to a Bifhop, Parion, Vicar, &c «. '"D^/sCafe
(7.) A Deanry confifts of Two parts, viz.. OjjiciunT& Benelici''^^^^''S^T-'^^/.^
urn J The Officium hath two parts, the one is Dignity and Jnrifdt^i- ^°^' ^^P*
o«, the other is Adminiftration : But fome Promotions are merecafe Hob.
Adminiftrations, zs Prebends and Parfont, which are not Dignities, Rep.'
becaufe they have not Jurifdidlion, 1 1 H. 4. But an Archdeacon hath
a dignity, becaufe he hath a jurifdidtion ". So hath a Dem^ ^^'^ CafeEv^rn^
whom anciently (according to Lindwood) the Canons made their and /^/cw^^.
Confeffions, Et quod Canonici quoad cur am anim arum fnbf urn Z)^'C^«o, Latch, Rep, .
Lindw. de Pcenit. c. i. glojf. in i/f y^. w/ Decano, & in ver. Decanum
& Capitulum. Who ought to vific his Chapter, 5 £. 3. 7. and if a.
Prebend be made a D(?<?«, the Prebendaryis void by Ceffion, 5 E. 2.
F. Brief. 800. Alfo a Dean may make a Subltitutc as to the matters-
of his JunfdtEiion^ as for Corredions, or Vifitations^ but not as
for the other part, viz.. the Adminifiration : for which reafon he can^-
not make a Deputy to confirm 1 eafes, and the .like x. So that in ^ ^-^^ q^-^^,
a Deanry Cathedral there feems. to be, (i.) Dignity 2Lnd jHrifdiBi- Evan/ind^.
ony X^.) Office 2.nd Adminiftration.^ (3) the Benefit or Profits thcTQ- Afiough.
of; which feems very clear, for that a Parfon., a Prebend^ or the;
like, hath not Dignity, but oneiy the Office or Adminiftration, with-
the Profits:, but a Dean, who hath Adminiftration as others, hath
alfo Jurifdidion and Dignity. The Law is alfo the fame as to an
Archdeacon, 1 1 H.^.^C. q H.€. 27. 27 H.^.-^. And a V^rit brought
againft a Dean is good and fufHcient without his proper Name^.
becaufe it is of it (elf a Name of Dignity : And that a Deanry is-
a Dignity, appears by 5-£. 3. 9. Breve 8oq. as aforefaid ^ and it is^
an Office alfo . for that in ancient times, a Dean took the Confef-
fions of his Prebends, as was iikewife hinted before. Alio a Dsan-.
n'^y by his Dignity make a Deputy to.corredv^-*^' but not' as tOt
his.
5^ Of Deans a?id Chapters.
y Ca^e Evans his judicial Office, as to confirm Leafes, and ihe likey. By the
vcrf. AjcoHgh. Canon Law, he that is the Archifresbyter^ is alfo called Dean^ [ciL
^n prim loco, ^.^g^yyterorum vel Ecclefit. Cap. adhac, de Offic. Archidiac. Cano. in-
Latch. Rep. j^Qygmns, 60. Df/?i»^. Andbecaufethe D^rfw ofaChurch (under-
ftand it of the Roman Church) in locnm Archipreshyteri fubrogatHi efi.
Rota Vecif. 45 1. in novii — & rurfum^ in Vecif. 445. The Archipresby-
ter was fo called, becaufe he was in fome certain matters and caufes
fet or appointed over the Priefts or Presbyters, and fuch as were of
the Sacerdotal Office, fpecially in theabfenceof the Bifliop ^ cap.i.
& 2. de Offic. Archiprejb. The Dean is fuch a dignity, that the Ca-
non Lawftyles him, honorsbiliorem partem Capituli\ cap. poji EleEtio-
nem^ C. 7. deConceff. Prabend. c. cum inter ca. 18. & ibi Panor. & glojf.
de ile^(. And in a large fenfe a Vean may be faid to be the chief of
any that are of the fame ftate and order ^ Clojf. in rubr. de Decanis,
lib. 12. C. &ibi &.Alceat. and fo the Canons of the Church of Co«.
ftantinople^ tanquam digniores^ were by Honorita and Theodnfim called
Decani : L. mn plures 4. de Sacrof. Ecclef. lib. i . C. tit. 5. and the more
\\ono\iV2\AQ inter Rot £ Auditores^ is the Dean of the Pope's Chapel,
propter A^inifterium^ quod vocatnr MithriE, Lud. Gomef in prooem. ad Re^.
Cancell. de Prothonotariis. The truth is, the Canon Law in exprefs
terms fays, that Deconatus^ or a Deanry, efi Nomen fpeciale digni-
tatis : Cap. cum illis vero^ §. tllii de Prebend, in 6. that is, when it refers
to preeminency in any Church Cathedral or Collegiate ^ Gemin,
Conf. 13 i.««. %.ver. expreffit. de Deconatu. For as to Deans Raral^ it
is otherwife : Cap. licet Canon, de EleB. in 6, the dignity, qua talis .^ be-
longing properly to the other, viz.. Decano CapituU^ w^ho is Capnt
■principale ipfius •, yet under the notion or appellation of a Chapter,
the Dean thereofis not comprehended, unlefs he be fpecially men-
tioned or nominated : Rebuff, in TraH. nominat. q. 8. nu. 33. & Bar-
bos in 3. Decret. C. pofi EleEiionem. deConceff. Prabend. nu. 3,
(8.) Chapter^ Capitulum.^ fo termed by the Canonifls .,■ not pro-
perly, but metaphorically, qm/i 2l Little head^ or a ku'id of Head
not onely to rule and govern the Diocefe in the Vacation of the
Bifhoprick , but alfo when the See is full to affifl: the Bifhop as a
Council, by way of Advice in matters pertaining to the Diocefe :
Vid. Panor. in Cap. Capitulum, extra de Refcript. The Chapter con-
fining of a D-an, Canons and Prebends, \s Clericomm Congregatio
fttb Hno Decano in Ecclejia Cathedrali ^ or it fignifies, Congregationem
Clericomm in Ecclejia Cathedrali., ConventuaU., Regulari vel Collegiata.
Of thefe Chapters fome are Ancient , fome New •, the New are
thofe which were founded or tranflated by King H. 8, in the places
of Abbats and Covents, or Priors and Covents : Or thofe which
are annexed unto new Bifhopricks founded by H. 8. as were Briflol.,
Chefter and Oxford. This word Capitnlnm, or Chapter., hath (ii
addi-
Of Deans and Chapters, 57
addition to the Premifles) other lignifications in Lindwoods Pro-
vincials, where he fpeaks de Cafitulis B.uralibut^ of Chapters Ru-
ral, Lindw, tit, deCotift'n. cap. quia incontinent^.^ g^^JT- "^^f^- C^pitnlis
Rhralibm-.^ and there acquaints us with no lefs than fix fignifications
of this word. Sometimes (fays he) it is taken for the place, in
^uo fiunt ComwHnes traU:attu Collegiatorum. Sometimes it is taken
for the place, in qm fimt Difcipltn£ delinquentium : Cap. Reprehenji-
bilis infi. Extr. de Jppell. Sometimes it is taken pro Decretali vel
alia certa dijiinQione Sacr£ Scripture : Cap. cum fnpr. Extr. de Sepult.
Sometimes it is taken pro CapituHs RHralibm^ as aforefaid, that is
when in Locis mintu infignibm .^ viz. in Rnre Conflitutis^ known by
the nameof Co^i'f^//^ in Othos Conftitutions : Cap. Sacramenta^ ad
fifiem.^ ver. Conventib. Sometimes it is taken for a Colledion of
perfons, ad invicem de his qua eis incumbunt in Locis ad hoc ajfignatis
traElantium-^ and being taken in this fenfe, it may be underftood
fometimes tor perfons congregated in a Metropolitan or Cathe-
dral Church, and fometimes for perfons congregated in a Church
Conventual, Regular or Collegiate : and each of thefe laft may in
a large fenfe be faid to be a Collegiate Church, according to the
defcription thereof, viz,, l^hat Ecrlejia Colkgiata eft Co/UBio homi-
num fmul viventinm:, but to fpeak properly, that is Capitulum .,
which is refpeBu Ecclefm CathedraUs : That Conventm., which is, re-
[peEtn Ecclepa Regularis : and that Collegium ., which is refpeclit Eccle-
fa Inferioris^ ubi efi collegia viventium m Commpwi. And ibmetimes
Capitulum is taken for a Colledion of many perfons not living in
common , fed ob traUatns Communes intir fe habendos , ad aliquem
locum confinentiHrn; according to which, a convening together of
many Redors, Vicars, and other Eccicfiaftical perfons, ob traHa-
tm communes inter fe habendos .^ etiam dicitar Capitulunt ^. Vanor-'^ VinA\\\
mitan underftands it, pro ColleBione^ feu pro Collegio ipforum Canoni- '^^^ -%"'*'
corum\ but withall fays, it hath divers fignifications, all which he
comprizes in this one Verfe,
Difiinguit^ mnuit.^ locat^ & Collegio fertur.
Diflinguit^ when oneSubje.it isdiOinguifhed from auorher in any
Tradt or Treatife : Minuit.^ when it ftands diminutively, Capitu-
lum^ quafi parvum Caput .^ as aforefc^id, underftand it fecnnditm mo- ,
dum : Locat., when it is taken for the Place it felf where the Canong
are met or conven'd : CoUeViio.^ and io iris taken pio ipfo CoIUoio^ as
aforefaid •, Tanorm. de Refcript. Extr. c. Capitulum. Whereof there
are three infeparable figns, as one common Seal, one common Stock
or Treafure, and one common Head or Rector.
1
^8 Of Deans and Chapters,
(9.) By the Camn Law the words Capitnlitm^ Convent us^ Ccetw^
and Concilium, are as it were Synonymous •, but the terms, Capitu-
lnm and Conventus, are frequently ufed Promifcuoufly : But to fpeak
properly according to the Law, Convemta is faid to be Congregatio
Ecclefia ReguUris •, and Capitulnm or a Chapter is faid to be Congre-
=« Gloff ibid. g^i^° Ecclefm Sectdaris ^ The word ZChapter^ taken (as here) in
* a proper Canon-fenfe, is a name colledtive having a Plural fignifica-
.tion J yet in reference to different things, may be accommodated as
well to the Singular as the Plural.
(10.) A Chapter Ecclejia Cathedralls^ confifts of perfons Ecclefi-
aftical. Canons and Prebendaries, whereof the Dean is chief, all
fubordinate to the Bifhop, to whom they are as afliftanrs in matters
relating to the Church, for the better ordering and difpofing the
things thereof and for confirmation of fuch Leafes oftheTerapo-
ralties and Offices relating to the Biflioprick, as the Bifhop from
"Co. ?.par. time to time fhall happen to make ^. It feems that at the Common
Cafe'ofthe Law, by the Gift or Grant of Lands to a Dean and Chapter (being
Dean and g Corporation aggregate) the Inheritance or Fee-fimple may pafi
"Chapter of j.^ ^^^^ without the word [_SHccejfours^ becaufe in Conftrudtion of
«Ss Parf. Law fuch Body Politick ii faid never to die «. 1 his muft be under-
lay, cap. 3. ftood onely in reference to their taking of the thing granted, in
their Politick, not Natural capacity.
(11.) One Bishop may poITibly have two Chapters^ and that by
union or confolidation, as in the Bifliop of (-K^f ^r/<?r/s Cafe, who
had the BiQioprick of Lifmore and the Chapter thereof united to
that of Ifaterford : In wnich Cafe although the Chapter o^ Lifmore,
onely confirmed the Grants of Lands belonging to Lifmore , and
the Chapter of Waterford onely confirmed the Grants of Lands be-
longing to the Bifhoprick of iVaterfo'rd; yet becaufe the Union
there was not extant, the Judges held the Confirmation in manner
aforefaid to be good \ but otherwife all the judges held, that both
«» Co. 12. 71. Chapters ought to have confirmed ^ : For it feems if a Bifhop hath
a. b. two Chapters, both muft confirm his Leafes ^
Dy.282.p.25.
Sir Sim. Degg's Parf. Couafel. par. i. c. 10. * Teirp. R. 2. Fitz. tit. Grant 104. Hugh's Parf.
Law, cap. $.
Herbert and ( 12.) A Parfonage in the Diccefe of W. is annexed to a Prebend
Mnndafi Ca. {^ 5-, [j^e Prebend makes a Leafe for years, which is confirmed by
€)o. par. 1. ^j^g Bifhop, and Dean and Chapter of 5. It was held by the Court
to be good, without the Confirmation of the Bifiiop of ^F^. inwhofe
■M^es Rep. Diccefe it is. In Eyre'^s Cafe it was refolved, That Chapters 4r«
not of a capacity to take by Purchafe cr Gift without the E>ean, who is
their Head, And in the Cafe of EatoK-CoUege ^ where a Leafe
was made by the Dean and Chapter of the College of £^f(^'«,
whereas
Of Deans and Chapters, pg
whereas they were incorporated by the Name of the Dean and
Chaptrr of the College of St. Maria of Eaton ; Refolved , that 3 & 4 Ma.
the Leafe was void for the Mfnofmer. Yet , whereas the Dean ^''^''" College
and Canons of Windfor were Incorporated by Adl of Parliament ?^^^* '^"''^
by the Name of the Dean and Canons of the King's Free- Chapel ^^^'*'
of his Caftle of Windfor , and they made a Leafe by the Name of
the Dean and Canons of the King's Majefly's Free-Chapelof r^^
Caftle of Windfor , in the County of Berks : Refahed^ the Leafe
was good^ For although the King in the Ad of Parliament calls ^^''- ^^Jj*
it his Caftle ; yet when another fpeaks of it, it is more apt to call
it the Caftle, and therefore fuch variance fHall not avoid the Leafe,
Likewife, whereas Chrifis-Church in Oxon is incorporated by the
Name of Dean and Chapter Ealefta Cathedralis Chrifti de Oxon :
and they made a Leafe by the Name of Dean and Chapter fcd.?/^ J^J^,^^ Cafe
Cathedralts Chriftt tn Academia de Oxon-^ and the Liberties d'^ vfc<2- ;>/jre's Rep/
demia did extend farther than the Liberties of the City ^ yet it was
adjudged a good Leafe, becaufe the fubftance of the Corporatioa
was inferted in the words of the Leafe.
U C H A^E
6o
CHAP. VIIL
Of Archdeacons.
I . What Archdeaton is •, his Office and JurifdiEiion.
. . 2. -The federal kj^ds of Jrchdeaconries > and how many ?» England^
'3. IVhence the Archdeacons power is derived^ and vohether a Quare Im-
pedit doth lie of it or not I
4. In what Cafe ASlion lies againfh an Archdeacon^ for refufing to give
InduEiion to a Clerk, inflttmed by the BijJjop.
5. Archdeaconry not comprtfed under the notion of a Benefice with Cure
of Souls.
6. Procefs 0/ Quorum Nomina prohibited by the Canon^o beiffuedby
any Archdeacon.
7. How often an Archdeacon may have his Vif ration ^ and what his
Office or Power therein is.
8. How a perfon ought to be qualified^ that may be an Archdeacon : It
is an PccUfiaftical Dignity
9. Cardinal Otho's ConflitHtion touching the Archdeacon s government
in hisJ^ifitations.
10. How Archdeacons are diflinguifhed at the Canon Law.
I I . Conformity thereto in the praEiice of the Common Law.
12. A Cafe at Common Law^ touching a Leafe for years of a Glebe made
by an Archdeacon,
j'^. The fame Cafe fomewhat.otherwife reported'.
14. Whether a Quare Impedit lies of an Archdeaconry.
Philh a fifth (!•) A RCH DEACON, from iJrchos J Princeps , or Chief,
SonofLe'ryii -tJL sud Diaconos^ Deacon, that is, the firll or chief of the
tlie Grofs, K. Deacons : Sum. Hoft. de Offic Archid. & c. 1. de Scrut. in Ord. fac.
of France, being (according to the Canon Law) fuch as hath obtained a
difciamed dignity in a Cathedral Church , to have the Priority among the
Archdeacon" Deacons , and firft in Jurifdidion next after the Biftiop*, Sum.
mPaiu. Hoft. ''b'd. For as of Common Right all Ecclcfiaftical matters
Paid .^mU. vvitl in the Dioccfe appertain to the cognizance of the Bifhop, fo
Tiliw. under him to the Archdeacon , excepting cnely fuch things as by
tSuTtuibid. Law are (pecially prohibited ^. And therefore is faid to be dig-
nified with this Title, for that in many things he dorh fupply the
room cf the Bifliop, to whom he is in precedency to others fub-
^ Can. 1 02.7- fervient, and unto whom his fervice chiefly relates ''. Every Bi-
m«, 93 i^c;?- fiiop (be it Archbifliop or other) hath under him an Archdeacon for
the better difcharge of his Cure, He hath Jurifdiction of Comnion
right.
Gf Archdeacons,
right, which may vary according to circumftances and the Cuftom
of the place-, and therefore in fome cafes it is jHrifdiaio Ordim-
ria , in others it is Delegata. And although regularly (as fuch)
he doth not exercife any Jurifdidion within the Church it ^t\f
yet it cannot be denied, but that an Archdeaconry is an Ecclefiafti-
cal Dignity : Fran. deAret. in Concil. 23. His Office and Jurifdic-
tion by the Canon. Law is of a far larger extent, than is now prac-
ticable with us, otherwife we Ihould not there find him fo frequent-
ly ftyled OchIhs Epifcopi^ for that he is by the very Law the Bifhop's
Vicar in feveral refpeds , and therefore may ( where the Bifiiop
himfelf conveniently cannot ) keep the Triennial Fifitations^ or not
oftnerthan once a year, fave where emergent occafions do' require
it oftner. He hath alfo under, the Bifbpp the power of Examina-
tion of Clerks to be ordained , as alfo of Inftifurion and Indncli-
on; likewife of Excommunication, Injundion of Penances, Suf-
penfion , Correction , Difpenfations of hearing , determining and
reconciling of Differences among the CLer^y as alfo of enquiring clergy from
into, infpecfting, and reforming Abufes and Irregularities of the KAn^fJ, i'or-
Clergy, with a power over the Subdeacons , and a charge of the '^^' they bc-
Parochial Churches within the Diocefe. In a word, ( according ^^^- '" ^ P^"
to the pradice of, and the latitude given by the C^«^« Law ) !s the llfdv
to fupply the Bifiiop's room, and as the words of that Law are, Pordon.
in omnibHs vicem Epifcopi gerere ^ Synt. JHr. 1. 15. cap. 20. de Ar-
chidiacono,
(2.) The Diocefes within this Realm q^ England are divided in- There are ^o
to feveral Archdeaconries, they being more or lefs in a Diocefe Archdeacons
according to the extent thereof ^ refpeaiveiy, and in all amoun- ^" ^''^^^"^•
ting to the number of Threefcor^ : And they divided again into * "^l^^' ^'
Deanries, which alfo are fubdivided into Pariflies, Towns, and 5 cWr?s"
Hamlets. Of the Archdeaconries fome are by Vrefcription ^ fome Cafe,
by Law ^ , and fome by Covenant. Which difference hath this "^ 8 H. 6. g.
Operation in L^v^", That the Jurifciidtion of an Archdeaconry by /'-|'^^-'''««^''f*'-
Prejcription, or de jnre, is exclufive to the Jurifdi^lion of the Biftiop, Jeaconrfo'f
infomuch that a Prohibition lies for fuch Archdeacon againlt the Richmond is
Bifliop, if he intermeddle Juridically with any matters or things by Prefcrip^
within fuch Archdeaconries : Otherwife it is where the Archdea- "°"'
conry is cnely by ContraEi^ or Covenant m^dc between the Billiop and
the Archdeacon^ for in that cafe, if the Bifliop fo intermeddle
within the Jiirifdiftion of fuch' Archdeacon, or hold Plea within
the fame, he can have, but an Aftion of Covenant againft the Bi-
ftop, and no Prohibition lies in that cafe «. The Cognizance which e xriq 21
the Archdeacon hath, is of matters merely Ecclefiaftical, to which JacB-'a/
end he or his CommifTary may hold his Court, where, and in what Cajheil and
pl|ces the, Archdeacon ^h\\ti\y^ TrefcriptignOtCnnpofition hath'ju- ^"""^^^^'^
'' "'' ' ^1.2. ■ • ■ ' rifdi&bn
6i Of Archdeacons,
f -24 H 8 'Midion Ih S];)irittf3i Caufes 'tvithin his 'Arctideaconry-, ahd from
c. II. ' ' ~him the Appeal is to the Dibcefan ^.
Co. inft. par. (3.) An Archdeaconry fhip being bhely Matter of Funtftion, and
4- cap. 74- (as fuppofed) not properly Local, nor any Indenture made of it,
it hath been fome queftion heretofore , whether a Qptare Jmpedit
doth lie of it, or not ? Bur it was held in the affirmative, for that
8 Trin. 51 an Archdeacon hath Locum in Choro s. The power of an Archdta-
?'^)P'^: con was derived from the hiihop, and to him he is fubordinate:
v^f.Sfhop T'o which purpofe the opinion of the Court in Mutton ^C^^e U^on
of Lichfield, a ^uare impedit was, That if a Suit be before an Archdeacon, where-
.Leon, Rep. of by the Statute of 23 //. 8. the Ordinary may licenfe the Suit to
a higher Court ; that the Archdeacon cannot in fuch cafe balk his
Ordinary , and fend the Caufe immediately into the Jrches: for
he hath no power ro give a Court, but to remit his own Court,
^ „. ^. . and to leave it to the next ; for fince his power was derived from
mmn-TcZ ^^^^ Bifhop, to whom he is fubordinate, he muft yield it to him of
c. B. Hob. whom he received it ; and it was faid in that cafe, that fo it had
Repo been ruled heretofore ''.
(4.) If after the Clerk hath been prefented by the Patron, and ad-
• mitted and inftituted by the Bifhop, the Archdeacon (hall refiife to
indud him into the Benefice, an Adtion upon the Cafe lieth for the
8 Pafch. 29 Clerk againft the Archdeacon '. He hath power to keep a Court,
£//■<. c. B. which is called the Court of the Archdeacon^ or his Contmijfary ^ And
G^J^^^'vid ^^^^ Court is to be holden where and in what places the Archdea-
F.''Ni b! 47. * con either by Prefcription or Compofition hath Jurifdidion in Spiritual
2*5 H. 8. 3. Caufes within his Archdeaconry. And from him the Appeal is to
■by Knightly, the Diocefan.
(5.) Although by the Canon Law, if one having a Benefice with
Cure of Souls, accepts an Archdeaconry, the Archdeaconry is void ^
yet it is conceived , that upon the Statute of 2 1 H. 8. 13. the Law
is qualified in that point, by reafon of a Trovifs there, viz. Tre-
njided that no peanry , Archdeaconry^ &C. be taken or comprehended
under the Name of a Benefice^ having Cure of Souls ^ in any Article above
fpecified-^ and to this Opinion did IVray^ and the other Juftices, en-
* Pafch. 31 cJine in 'L'^^^^rkV/'s Cafe *'. And indeed an ^rc^^r4ro;7ry, by the
Elii. B. R. exprefs Letter of that Statute, is exempt from being comprehen-
Vnderhiit ded under the name of a Benefice with Cure-, for the words are.
Cafe. z!eon! ^ '^^^ ^^ Deanry , Archdeaconry , Chance Hour fhip , Ireafurerfhip ,
Rep. Chanterfhip^ or Prebend in any Cathedral or Collegiate Churchy nor Par-
fonage that hath a Vicar endowed.^ nor any Benefice perpetually appropri-
'St. 21 H. 8. ate ^ (hall he taken or comprehended under the name of a Benefice ha-
^3' ving Cure of Souls'.
(6.) By the Ecclefiallical Conftitutions and Canons of the
Church o^ England^ no Archdeacon (nor indeed any otherfEc-
clefiaftical
Of Archdeacons, ^o
clefiaftical Judge) may fuffer any general Procefs of ^rum No-
mina to iffiie out of his Court : Except the names of thofe to be
cited be firft cxpredy entred by the Regifter or his Deputy under
fuch Procefs, and both Procefs and Names firft fubfcribed by fuch
Archdeacon, or other Ecclefiaftical Judge, or his Deputy, with
his Seal thereto affixed. And in places where both the Biihop and
Archdeacon do by Prefcription or Compofition vifit at feveral times
in one and the fame year , the Archdeacon or his Official , ihall
within one month next after the Vifitation ended that year, and
the Prefentments received, certifie under his Hand and Seal to the
Bifhop or his Chancellour , the Names and Crimes of all fuch as
are prefented in his faid Vifitation, to the end the Chancellour may
not convent the fame perfon for the fame Crime, for which he is
prefented to the Archdeacon •, which courfe the Chancellour is in
like manner to obferve, in reference to the Archdeacon, after the
Bifliop's Vifitation ended. The which was ordained, to prevent the
Profecution of the fame party for the fame fault in divers Ecclefi-
aftical Courts™. And in cafes of remitting Caufes from the In- « Can. 120.
feriour Judge, the Archdeacon cannot remit the Caufe to the Arch- 121. '
bifhop ^ but he muft remit it to his Bifliop, and he to the Archbi-
fhop, Trin. 1 1 Jac.
(7.) The Archdeacon within the Jurifdiflion of his Archdea-
conry may by virtue of his Office have his Vifitation, if he fb
pleafe, or need ihall require, once every year \ but of neceility he is
to have his Triennial Vifitation : Lindw. de Offic, Arckid. c. i. verb.
Vifitatione glojf. But whether of common right, and by the Jtis
Commune^ the Archdeacon may vifit within the Jurifdidion of his
Archdeaconry is fome queftion , yet refolved by diftinguilhing
whether the Vifitation be made per modum Scrutationis fimplicis by
the Archdeacon , as the Biihop's Vicar , and fo he n^ay vifit of
common Right : but if in fuch Enquiries he take upon him nomine
[ho propria to corred Faults, other than fuch finali ones as wherein
Cuftome may warrant him ^ in fuch cafe it is held , that he hath
nor power of Vifitation de jure commttni : Lindw. ibid. And in all
fuch things as belong to his Vifitation he hath Jurifdidion, and by
Cuftome over Lay-perfons , as well as over the Clergy : It feems
therefore he may doe all fuch things, as without the doing and dil^
parch whereof his Jurifdidtion could not clearly appear-, L. cui
Jnrifdi^io ff. de Jurifd. om. Jud. and therefore wherever he may
take cognizance of a matter, there he may alfo give fentence and
condemn j Extr, de Cauf. Pojf. & prop. c. cum Super. & de Offs. Deleg,
c. ex Literis, which is fuppofed to hold true by Cuftome, and inal^
much as the cognizance and reformation of fuch. matters do belong
tc\ the Ecclefiaftical Court •, whence it is that an Archdeacon may
impofe
^4 Of Archdeacons.
impofe a penalty on lay-men for the not repairing their Parifli-
Church within his JuriWidion •, Extr. eod. c, ult. & Extr. de Offic.
Ord.c. 1. ^Lindw. nhi fnpr. verb. Imperitiam. For it is exprefly
enjoyned and ordained , That Archdeacons and their Officials , (halt
at their Vifitation of Churches^ take the condition of the Fahric\ there-
of into facial confideration^ fpecially of the Chancel , and in cafe there
he need of Reparations.. Jhall fet or fix a time within which fiich Repa-
rations jhall be finifhed^ which time is likswife to be fet under a certain
penalty : Lindw. de Offic. Archid. c. Archidiaconi.
(8.) By the Canon Law a man cannot be an Archdeacon under
the ageof 25 years •, Can. Nullus in propojiinm., 60. Difi. And by
the Council of Trent he ought to be a Licentiate in Law or Divini-
ty •, Cone. Trid. 8. Cejfio de Reform, general. Can. I2. They are cal-
led the Chief of the Deacons ^ C. 1. de Scrutin. in ord. faciend. in
v/hom there is'an Ecclefiaftical Dignity inherent jure Commmi:
And in feme places they have this Dignity fine Officio-^ for Inno-
■ centius obferves, That in Ecclefia Parmenli Archidiaconus nullHm ex"
ercet Officium , dr nihilominus di^^itatem habet : Innocent, in c. de
mnlta de Prebend. But regularly, according to the Canon Law, Arch-
deacons., as to their Dignity, -Office and Degree, are to be, reputed
according to the Law , Ufage and Cuftome of their own Church
and Chapter •, Hoftienf. Sum. de Offic. Archtd. The Archdeacon is
^ OchIus Epifcopii and ipfo jure his Vicar in Vifitations, Corrcdions,
and Difpenfations in matters Ecclefiaftical within his Jurifdidion,
he h&th power of reforming the Clergy, of examining and prefen-
ting to the Blfhop fuch as are to be ordained, and of putting into
poffelTion fuch as are Prefented, Inftituted and Induded into Eccle-
liaftical Benefices.
(9.) Cardinal Otho ., in his Canon de Archidiaconls ^ hath Or-
dained, That all Archdeacons do prudently and faithflilly vifit the
Churches within their refpedive Archdeaconries , as touching the
Sacred VefTels and-Veftments thereof, and generally to enquire
into the Tcmporalties and Spiritualties belonging to the fame,
and that they endeavour to amend, what they find amifs: Alfo,
that they grieve not the Churches with fiiperfluous Charges or
Expences^ but require onely moderate procurations in their Vifita-
tions •, wherein they may not prefume to receive money of any
when Crimes are to be correded or punilhed, nor Sentence any
unjuftly, on purpofe to extort money from them, on pain of"
double the Summ to pious ufes at the difcretion of the Bifliop,
bcfides other Ecclefiaftical puniihment, Cow^'/Zf . Othonis , de Archi-
diaconis.
( 10. ) The Canofi Law doth diftingulfh of Archdeacons ;, the
•whole I'itie throughout C De Offic. Archidiac.2 regularly fpe^aks
Of Archdeacons, ^5
of an Archdeacon General, who hath not any Archdeaconry di-
ftindliy limited, Sed tanc^Ham Ficarius fungitur vice EplfcopiVmver^
faliter^ and doth reprefent the Bifhop : Extra, de Confus. non futa-
mus, Otherwife it is in him who hath a diftindt Limitation of
his Archdeaconry, for therf he hath 1 jupfdidion feparate from
the Bifhop, which, where it is by Cuftome, may be prelcribed :
Gloff. in ver. V'ifitem. diEh. Confl, Otho. Confonant to this feems
that difference which the Judges took in the Cafe between Chimr-
ton and Trndgeen , wherein they held and agreed , That there is a
Jurifdidtion of one Archdeacon , and there is the Jurifdidion of
another, which is but a peculiar Jurifdidion ^ for the Archdeacon
is an Officer who hath a Court of his own, in which he hath the
Probate of Teftaments dejure: And Doderidge Juftice faid, Th^t
he, is a principal Officer belonging ta the Bi[}jopy & efl cjuafi Oculiis EptJ'~
capi \ but otherwife it is of one who hath but a fpecia! Jurifdidion,
as the Adchdeacon oi Richmond hath to make Inllitutions ^ and to
2.1 H. 6. 23. the Dean of P^«// in that cafe hath fpecial Authority
in St. Pancridge^ HilL \qjac. B. R, Cafe Chiverton and Trudgeon :
KoW.Rep, , _
(11.) In the Cafe between Gaflnll and Jones ^ it 'was fald *by
Ley Chief Juftice, That it is to he conjidered ., what Amhority the
Archdeacon hath in his own nature , m fuch^ and what power he may
have by Prefcrtption^ or otherwife : The Archdeacon is a Minifter
fubordinate to the Bifhop, viz.. Deputy and Vicar /or an Officer
under him ^ for , in cafe of Indudion , the Bifliop's Warrant is
necellary to impower him to give the fame ^ He hath alfo Judici-
al power, but it is not exclufive to the Epifcopal Authority, but
the Bifhop is his Superiour : Both are Judges but the one fubor-
dinate to the other, &c. And if Sentence be given in the Arch-
deacon's Court , the Appeal thence fhall not be in the Bifhop's
Court, but in the Archbifhop's : And if a man dies Inteftate, ha- (v
ving goods within the Archdeacon's Jurifdidion, and other goods
within the Jurifdidion of the Ordinary, the ArchUifhopCashe faid)
lliall commit the Adminiftration to the Archdeacon. ^
(12.) The Archdeacon of//, having the Parfonage oi A. ap-
propriate to it, Lett the Land parcel of his Glebe for fifty years,
in Anno 12 Eliz.- The Bifhop of £. Patron of the Archdeaconry ^
and the Dean and Chapter confirm it ; The Archdeacon dies, ano-
ther is collated to the Archdeaconry. It was the Opinion of the
Jujiices in this Cafe, firft. That the Confirmation by the Bifhop
was not void, for that it was but an Affent onely to the Leafe of the
Poireffion of the Archdeaconry^ and not of the Bifhop, and therefore
not within the Statute of i Eliz,. The fecond Point was. Whether
this
I
66 Of Archdeacons,
this Leafe was void by the Statute of 13 BUz.. Qnare^ for not
Refolved, Mich. 37 d- 38 Eliz.. B, R, Sir Edw. Denny and Eaken-
jftair^C^/f, Cro. par. i.
(13.) The fame Cafe Reputed by More ^ An Archdeacon having
a Parfonage appertaining to his Archdeaconry before the Statute
of 13 Eliz.. made a Leafe for forty years of the Parfonage , which
was confirmed after the Statute j adjudged the Leafe and Confir-
mation both good , uirkingfaU , or EakenftaU , and Denrrfs Cafe ,
More\ Rep.
(14.) hQuare Impedit was brought by the Executors of 7. S.
for not fufFering them to prefent to the j4rchdeaconry of D. which
became void in the life of the Teftator, and the IVrit and Count
both fuppofed a difturbance to the Teftator in his Life, 7» mne re-
tardationem Executionis Tefiatnenti pradiSl. In this Cafe it was Rt'
fohed , ( I.) That a Quare Impedit did lie of an Archdeacomy,
(2.) That the Writ as brought fhould abate, becaufe it was in nmc
retardationem^ which cannot be of a Difturbance in the life of the
Teftator. But it was agreed, that the Executors might have a fpe-
cial Adion upon the Cafe for their Difturbance , Trin. 3 1 Eliz..
B. R, SmaJlwood and the Bilhop of Coventry and Marfhes Cafe ,
G-ff. par. I.
CHAP.
fl
C H A p. IX.
OfProcurathtJSy Synodah andVentecoflah,
1. Procuration, n?W-, roheme fo called-^ and how paid.
2. fTkf/j^r Procurations be onely due ratione Vifitationis ?
3. Procurations jinciently paid in Vidtualibus , and not in MoMy •
hovo paid to u4rchdeaconi in Lindwood'j time. '
4. Whether Procurations may be payable by Cupme to Archdeacons
fine Vifitatione?
5. Archdeacons to rifFt perfonally j if otherwife^ then how the Pro-
curations <2rf p^_y/3/>/f?
6. Not above one Procuration to be paid; how that is to be under -
jtood.
7. The Number of the ^''ifitor's Attendants by the Council of Lateran
in reference to Procurations •, and how many an Archdeacon may
have by the Canon.
8. Synodals, the threefold fgnifcation of that Word.
9. The Synodal anciently called Cathedraticum and Synodaticum :
what the Cathedraticum rr^/, why fo called-^ the Original thereof
and how it differs from Procuration. *^ '
. 10. Pentccoftal, what it ^•, when, by^ and to whom payable-, the
probable Original thereof.
1 1. A remarkable Cafe relating to this SubjeSl^ that was Refolvedand
Adjudged in Ireland.
( I • ) "T ^ E Ordinary at his Vifitation may by the Canon require his
^ .1 Synodals or Procurations., Ext. de Cenf. c. Procurationes ;
that is, a certain Cenfe or Tribute in money paid to the Bifhop or
Archdeacon by the inferiour Clergy at Eajler-nfitation j called
Synodale or Synodaticum., quia in Synodo frequentiw dabatur. So that
thefe Procuration! are no other than certain fumms of money which
the Parochial Clergy do annually pay to the Ordinary or Archdea-
con ratione f^tfitationi^. Anciently they were paid in provifions
of Visuals ncceflary for the Vifitor and his Attendants, now con-
verted into money inftead thereof: So that this Procuratio is by
f^allenfis Jiptly defined, Neceffariorum fumptuum exhibitio ., qua .^VaUenf. Pa-
rattone Jljitationis., dcbetitr ab Ecclefia vel Alonafterio ei cut ex officio ''.'^^^^•> ^^ Ceri'
tncumbit jm & onus Vifnandt^ five is fit Epifcopus, fve Arch; dia- ^'^' ^' ^'
conus^ five Decanus ^ five Legatus fummi Pontificis^ An. 1290. M.
eji-tod die Mercurii tn Fefio San^. Luc^ Evang. Dominus Epifcopux cce-
pt Procurationem in Cthii & Poiibus avud Bordefly , & pernod:avit
I ' X '^■"'- tbi-^
^g Of Procurations, Synodahy
.^-— - — -^rrr^^ wh^the word Tromration is fuppofed to have its
Sltv. d firati^n, even from the duty, incumbent on the Vifited m Pro-
mm. Lex. fJX. of neceflary Accommodations for the Victor and his Atten- .
ver.Procurat. ^^^^f ^^ ^forsfaid ', which feems the more probable by what Dh4^
rems fays , Hoc autem mum! ideo Procnratto vacatur^ quta Ecdcjia
BvifcopHm trecuram, id efl, cnrant, alnm, ac tuentur,
(I ) \r bath at times been fmartly controverted, Whether Tro-
. Ja'tL 'be due onely rmone Vifitatims, or whether the^ payment
thereof rtiay legally be enforced without the Ad of r;/r.«^, and
not rxclufively to Archdeacons in the years of Eptfcopal i^ ifnanons r
For ii b, then the forefaid defcription which raller^Jls makes there-
of, is not adequate enough to the nature of the things ot which
opinion grounded-onfolid Arguments, is the Learned Authour of
i,e,.»,«c thz Hi (Ported DifcoHrfe onihisSuhjQ^^.'
TptZ. (BTAntiemly (a-^ afbrefaid) thefe^Vifitation- Procurations or
ii. i65i. E^^i^o neceffariorum [umfrnHm, as rallenfis calls it, was no other
than m^^: For by the Council of Uterm (not the great Ge-
neral Council under yL... 3. but that) under^/.j. 3- above thirty
. r vears before, about An. 1 180. nfuors are fo direded to proceed m
^^ iTsfmit mmjimum. That thefe Procurations were originally
paid in VtauaUhm, appears by feveral Conftitutions of the Canon
Law Extr. de Cenfib, cnm Jpo/^obs , & de Cenfib c. Koman , §.
Procurationes. Con f uetudo t amen {{^ys Lindwood's GMs) cperatnr
in vlHTibH! locis, ut Trocuratio hujiifmodi famamr tn pecuma qy.^ con^
fuetudo bene poteft procedere, ut fHmatHr a Volentibusjc tn pecuma Sol.
iere^ mn antem a noUnttbHs. Extr. BeneSa. 11. &c,mtcts, 6- gl.
Lindw Hhi Cnpr, But that was onely where the Cuftome prevail-
ed, the Canon anciently being peremptory to the contrary •, tor in
the Sext. there is a Conftitution made by Innoc.A- (who became
Pope^^. 1243.) and afterwards ratified by a General Council at
Lions under C7r.^. 10. about An. 1273. forbidding (Jub fcena Ma-
ledtaionis etern^) the taking of Money in lieu oiTrocHranons (vel
i Volcntibus fie folvere) C.i.§. Procnrationes , 6-c exigtt.eod^ m
fcpcto & ibi Glof in cafr •, and in the ordinary penalty pradtiled in
this cafe apainft Vifitors oizny rank inferiour to Patriarchs, Arch-
bilhops or Bilhops, that fliould prefume to receive Procuranons
otherwife than ;» Viamlibtu , was fufpenfion ab Offiao & Beneficto.
And this way of paving Procurations ex anttqm, continued till the
time of Bomface 8." who fucceeding in the Papacy about twenty
two vears after Gregory, made a Conftitution about the year 1295.
That it fhould be lawfuU to any Vifitor (Volenttbus rtfttatis, not
otherwife) "jice VmmliHm to receive, not to exad , Money to-
^ V ards
and Pe?it€Coftals. ^a
wards the defraying of their Fijit at ion- charge^ Glofs in ver. difpen-
dia^ c. Fotlicis^ ead. in fexto : Which by Benedi^. 12. in the fecond
year of his Popedom, about 1337- was by a Canon or Conftitution
limited to a certain fumm, according to the quality of the Vifitor^
and the condition of the Vifited^ which may take place, where it is
not otherwife limited by cuftome ; the Procurations of Archdeacons
being in Lindwood'^s time, as he informs us, (which was in Henry the
Fifth's Reign, above two hundred years iince) the fumm of feven
/hillings fix pence, according to the number of his Attendants, viz,.
twelve pence to each man, and eighteen pence to the Archdeacon
himfelf, which (comparing the value of money Then. v/ith the times
Now) was confiderable. :
(4.) The Queltion is not, whether Procurations are due Ratione
Vi/itationis ^ but whether they are onely due Ratione Vi/i tat ionis, and
not otherwife ? It is fuppofed that they are and may be due other-
wife than Ratione Vtftatio?iis ; and that therefore Archdeacons may ^7^. jjjji^
receive Procurations in the Lord Bifhop's Triennials^ and yet vifit D//c. <?/f/-o-
not \ for Cuftome fecms to lay a juft claim to this Ecclefiallical c^ratianr,
payment of Procurations fine Vifitatione ^ where the Cuftome isP*^5» 25.
Rationabilis & Legitime frdfcripta. Time was , when Archdeacons
had jui Vifitandi qmtibet anno, and fo accordingly did vifit, & ea
ratione received Procurations, Lindxo. de Offic. Archid. c. i. gl, in
<ver. yifitation. & Ext. de Offic, Archid. c. Mandamus^ gl. in ver. fapi-
Hi Vtfitare. And foraetimes they vifit not, as in the Epifcopal Tri-
tnnials^ yet by the cuftome do and may receive their Procurations •, ?,ubifupr.Bcc.
underftand this onely of fome, not all Archdeacons.
(5.) ThQ Canonifis de^UG Procuration to be an Exhibition fumptu-
urn Necejfariorum paid to the Prelates, qui Dixcefes peragrando Ec-
clefioi fubje^as vifitant. And it is a Rule in the Canon Law, Quod
nulla eft adverfus Procurationem prafcriptio. In ft. Ju. C^n. Ll.de Cenfib.
And by the fame Law the Archdeacon is to go perfonally to the place
that is to be vifited, and ought not for that purpofe to fend another^
which if he doth not fo doe, he is not to receiv^^e /« denarOs the Pro-
curations due ratione Plfitationis , Extr. de Cenf. c. Procurationes.
Notwithftanding the perfon whom he commiffionates for that pur-
pofe Nomine fuo ^ ftiall receive the Procurations for himfelf and his
Attendants in ViSlualibm .^ Ar, ad hoc de O^c. Ord. c. fi Epifcopu^ ^ * ^'^ ^^' .
/. 7. e^ de Cenfib. c. u & c Foelicis, deCenf. Lindw. glo.de Ojfc. Ar- j^H.S^vTd!*
chid. c. ut Aichidiaconi^ ver. videant. Thefe Procurations are cal- Liyerfo. 273.
led alfo Proxies,^ Cenag. &- Pentecoftal. per an. 64 1. 10 s. ita Archidia- b. &C!aur.
conatm Glouc. valet dare in Proxis <^, which is a profit of ]urifdi(^i- ^^^' ^^f"f'
on. Archidiaconis inhibemus ne aliquo modo Procurationes recipiant fine ^'Z ^
Caufa rationabili^y nifi illo die quo perfonaliter vifitant., Provin. Con- lexkon ubi
ftit. jie Offic. Archid. fupr.
X 2 (6.) The
"0 Of Procuration!;^ Synodah
(6.) The Ordinary may not receive above 'one Pr«7c«r^r;<7«, that
isv he may not of the fame Church exaftone Procuration from the
Redor, another from the Vicar-, if he hath the Procuration in
riSl/talthui of the Redor , he ought to receive nothing of the Vi-
car, mce contra-^ for one Procuration of one Church for one day
is held fufRcient : dtEt. c. Fcelicu^ de C en fib. Nor do the Canons al-
low above one Procuration^ in cafe there be more Churches than
one Vifited in one and the fame day \ the Reafon whereof in Law,
becaufe ihtl^ifnation is the Princifd^ the Procuration is but the u^c-
cejfory^ and the Vijitation onely of one day ought not to have the
Procurations of more, nor ought the AccelTory to exceed the Prin-
cipal, Lindw. ibid, de Cenjib. c. quamvis^ & gl. ib. ver. Canones. Nor
ought there to be paid above one Procuration for the Mother-
Church and the Chapel thereto belonging, when they are Vifited,
Can. ibid. ver. una tcclefia. Yet there are Canonifis of very good
Authority, as Andreas and others, who holding the contrary, do
pofitively aflert. That every Chapel dependent (if Peopled and
of ability) fhall pay its own proper Proc;/r^f/(5« a-t times of the or-
dinary Vifnation^ for that the Biihop is to have a refped to every
individual Member of his Diocefe. it is therefore diftinguilliedand
confefied, that this is true, when the Chapel dependent hath a
Curate proper of its own , and diflind from , or other than the
Curate of the Mother-Church : But otherwife when the Redor of
the Superiour Church, is a Curate of both, and onely dothexercife
the Cure in the faid Chapel by a Vicar not Perpetual, but Tem-
poral and removeable ad libitum., Gl. in d ver. una Ecclejia. Lind*
wood on this occafion puts the Queftion, Whether in cafe the Church
be of one Diocefe, and the Chapel thereto annexed or united, or
dependent thereon, of another •, whether in that cafe there fliali at
the yifitation be but one Procuration paid for both? He refolves
it thus, viz.. That if the Ordinary of the place where the faid Chapel
^ands, hath formerly had there his Vifitation , and Procuration,
ratione Vifitationis cjufdem ; then and in that cafe the power of Vi/i"
ting the fame, nor by confequence the Procuration due ratione ^ifi'
tationis, is not taken away from that Ordinary by fach union or de-
pendency, Glojf. ibid, in ver. Eccle/ia.
(7.) By the aforefaid Council o( Lateran all Vijitors were limited
to a certain number of Vifitation- Attendants, according to their
feveral qualities , as Archbiihops to the number of forty or fifty
men with their Horfes •, the Bifliop to twenty or thirty ; Cardinals
to twenty five ( though they could not digeft fuch an undervalua^
lion) Archdeacons to five or feven^ Deans (that is, Archipref,
hyteri Rurales.^ as the Glofs expounds it) to Two onely : Gl. in ver,
J)eca.^i Extr. eod. c. cum A^ojiolus, Extr^ Com. de Cenfib. c. vat EJeEli.'
a?i(l Veiitecojials. yj
i . And the truth is, the Archdeacon (according to the C«w»^
fcay not have his in ordinary Vifitation above the number of y^t/^w
perfons^ if he exceed that number, there is not any ProcHration
due for the Supernumeraries, Lir^d^de Cenf. & ProcHrat.c.i.ver.
excedant^ & glo. ibid. & gl. in ver. P'ljitaiioriis^ .& il. ib. in ver. Dc'
bit am.
(8.) The word Synodale feems to have Three fignifications , as
(i ) It feems to fignifie Con'vcntus or a Meeting, in the fame fenfe
with Symdm^ as being taken for the Meeting or Synod it felf, and
fo ufed by Gregory 3. in his Epiftle to the Bifhops of the Provinces
of Baiory and Almany.^ Catholica SanUornm Vatrnm Aurhoritas jubet^
Ht bis in anno pro falute popnli Chrijiiani feu exhortatione adoptionis filio-
rum ST NO D A L 1 A dtbent cekbrari^ &c. This EpiltJe you
have cited by Cardinal 5^r(?«?«j, in the Eighth Tome of his v^»;m//
about the year 738. ('2.) It feems to fignifie the Ad:s done at a
Synod, as weh as the Synod it felf v and in this fenfe you have it in
tht Tripartite Hifiory., where mention is made of a Synod of Bilhops HiJl.Tripun.
afilmbled at Amioch out of divers Provinces, who fent the Empe-'- 7'fo-45^'
rour Jovian a Copy of the Nicene Creed, Hmc Libelhm ( mean-
ing ihe faid Creed) in ccllettione Synodalium Sabw confcriptum inve-
nimHs. In which ])lact Synodalia feems to import the Ads of thatli^id-fo-s^^*
Synod colleded by that Sabinus. (3-) It fignilies a Cenfeor Tri-
bute in money paid to the Biihcp, or to fome other for his ufe by
the inferiour Clergy. The forementioned Authour of the Hifio-
rical Bifcourfe of Procurations, &c. acquaints us. That in the Pag. 78.
fecond part of the Appendix to the third General Council of La-
tcran there is an Epiftle of Pope >4/fx. 3. to certain Archdeacons
and Deans , reproving them for extorting of moneys from the.
Clergy fub diverfis noyninibusy in a fraudulent kind ot way •, Et hu-
jufmodi exaBionem (faith this Epiftle) m earn liberius videamini
exigere , quandoque Ccnfuctitdinem Epifcopalem ■, qitandoque ST NO'
D A L I A , quandoque Denarios Pafckales appellantes. And in this
fenfe is the word Synodale here ufed and taken, which the Archdea-
con claims not fo much Jure Communi Ecclefiaflico^ as by Compofi-
tion with, or Prefcriprion from the Bifhop.
(9.) This Synodal or Synodical duty was anciently known by two
other Names which now are grown obfolete, the one Cat hedrati--
cnm., probably from the original Caufe thereof, being cb hotiorem
Cathedra Epifcopalis : the other Synodaticnm^. from the time of pay-
ment, both ufed promifcuoufly. The former of thefe , viz.. the
Cathedraticum was a Cenfe of two Shillings paid by the Inferiour
Clergy to the Bifhop, as appears by the Ads of certain Councils of
Bracar 2ind Toledo .^ as alfo by the Conftitutions and Refcripts of
Femes,. Iltud te volnmta modii vmmhHS cnjfodirc, ne qnis Ep/fioparnm SW
y2 Of Procurations^ Sjnodals^
cili« de Parochiis ad fe prtinentihm^ nomine CA TH ED RA TICI^
amplius quam Vhos Solidos prafitmat accipere ^ lo. ^. 3. c. illud^ &c,
placuit^ ibi^ &c. So Honorim 3. exprefleth Two Shillings mmin6
Cathedratici, Extr.de Offic Jud. Or din. c. conqHerent, &gL ibid, irt
ver. duos folidos •, which is a Penfion paid to the Bilhop a qudibet Ec-i,
clefia fecundum Loci corifnetHdinem •, as Panormitan. upon that Text,
j4bb. c. conquer ent. de OJfic. Jud. Ord. The reafon of this payment
was (according to Hoflienfis) in argument urn fubjeCtionis., & ob ho-
norem Cathedr^^ Hoftienf. in Sum. de Cenfib. ex quibus ver. Cathedra-
ticum autem. And the Council of Bracar-^ Placuit ut nuilm Epif-
coporum per fuoi Dtoecefes ambdam^ prater honorem Cathedra fu£^ id
efl Duos Solidos^ aliud aliquid per Ecclefias tnllat : cited in the De-
cree, 10. q. 3. c. placuit. Note ^ that the Ciftercians by virtue of
their Order were privileged from being prefenc at the Synodical
Meetings afTembled by the Bifhop within his Diocefe , and from
the payments of thofe Synodals, Glojf. in ver. Epifcopus, c. Epifco-
pus non debet., Vifi. 18. Extr. de Majoris & Obed. c 9. ^uod fupr. &
gl. ib. in ver. Vicecefana. This Cathedraticl^ payment began, when
the Revenues of the Church firft came to be divided and allotted to
feveral Minifterics^ then it was that this payment was firft made to
the Bifhop by the beneficed Clergy within his Diocefe, Duaren, ut
fupr. &\.2. c. I. fo. 53. It is probable that this divifion of the
Church Revenues was not iar diftant in time from the firft or origi-
nal diftinguifhment of Parochial Bounds, upon which affair Pope
Euarifius^ otherwife c?\\tA Anacletus Gracus., did firft enter about
the year 1 10. Volateran. I. 22. Anaft. Biblioth. & Baron. Annal. ad
An. 112. w«. 4, 5, 6. and was afterwards carried on by Pope Via-
nyppts., about the year 260. Baron. Annal. ad An. 260. nu. ij. Pa-
rochial Diftribution in England was by Theodcrus Arclibifliop of
Canterbury^ about the year 668. Spelm. Concil. 1 52 : But Speed faith,
by Honoriui the fifth, Archbifhop alfo of Canterbury^ about the year
636. It may not hence be inferr'd, that this Cathedraticum or Sy-
nodal was onely paid ratione Synodi ^ for it was fometimes, and very
anciently paid alfo at Fifitations, as appears by the fevemh Coun-
cil at Toledo., mentioned in the Decree, 10. ^. 3. r. inter catera, &
cafus ibi., where there is a Canon againffc the exading of more than
Two jlnllings onely pro Cathedratico in Epifcopal Vijitations. This
Cenfe or payment , though it be Onus Ecclefiafticum , yet it is not
Onus Innovatum^ but OnusX)rdinarium^ and by impofition of Law •,
as appears by the Provincial Conjlitutions , Sehttio Cathedratici., Sy-
nodatici , C^ Proeurationum , ratione ^'ijitationis ^ & alia hujnfmodi
de quibuT non dubitatur quin funt Onera Ordinaria., fuum capiunt effec-
tum ab impofitione Legis^ Lindw. de Ojfic. Vic. c. quoniam al. in vsr.
Onera Ecclefiaflica. Yet Procurations differ from the other in tRis,
that
and Pentecojials, j^
that ProcHrations 2re ondy Penfions^ but the other are properly Cir«-
fus. The Synody .or Synodal, is by the Stat, of 34 H. 8. reckoned'
as a Church-due, for recovery whereof provifion is made by that ii4/?^i7 in
Aet -^ and good reafon, for the faid Synody ox Synodal, isa Penfion Penfionsje^c.
certain and valued in the King's Books.
(10.) The aforefaid ingenious Authour of the Hifloricd DiC- d\^ m
w«r/e touching Procurations, &c. after his deep fearch into >4;/r.-^«/- D//r.of Pri.
ty^ doth conjeeturally conceive, that the Pentecofial, other wifecurations,
called Whit fon far things^ is nothing elfe burthe Annual Commerao-P' ^9'
ration, continuation or repetition of an ancient payment or pen.
fion, ilTuing out of the Oblations brought by the people long fince
fpecially at the time of the Foundation or Dedication of their fe-
veral Churches, or at fome other Solemnity, viz.. the moiety or
Third part of the Oblations then made. The fame being re-
ferved by the Bifhop, and by a Contradt (feu qmfi ContraUn) be-
tween him and the Founder of fuch Church , or Prieft affigned to
attend the fame, fettled in and upon the Epifcopal See, and paya-
ble yearly at or about the Feaft oi Pentecofi. Thefe Pemecoflalia
were not (as fome conceive) the Peter-pence here anciently paid
for they were ufually paid either at the Feaft of St. Peter and PauL
or on Lammof day ; but thefe Pentecofials feem to be paid upon
or about the time that doth chiefly denominate the fame, viz.. at
the Feaft of Pentecofi ^ and in the nature thereof feem to have re-
ference to an Oblation frequently made by the Chriftians in the El-
der times of the Church, and to have fome tendency to that Libe-
ral Devotion which was then as frequent, as Sacrilege is now. Jn
Leg. 18. Guilielm. Conqueftor, de Denariis S. Petri, fen Femgali
Romano, viz. Liber homo qui habnerit Averia Campefiria 30 denariis
aft-imanday dabit Denarium 5. Petri. Pro 4 denariis qnos donaverit
VominHs, qnieti erunt Bordarii ejus, & ejus Boner, & ejus ^ervien-
tes. Burgenfis, qui de propriis Catallis habet id quod dimidia Marca
A^imandum eft, det Denarium 5. Petri, ^ui in Lege Danorum eft-
Liber homo , & habet Averia Campeftria , qu£ dimidia Marca in ar-
gento Aftimantur, debet dare Denarium 5". Petro. Et fer Venarium
quern donaverit Dominus , erunt quieti ii qui refident in Juo Dominico.
Vid. Seldeni ad Eadmerum Nota & Spicelegium, p. 179. Leg. 18.
By this Law of William the Conquerour it appears, that the Peter-
pence had no affinity with the Pemecoflab. in ancient times when
the Bifhop did wKit Eccleftatim^ his ufage was to celebrate the Mafs
in the Church which he vifited , which indeed was every Parifh
within his Diocefe, and that by his Epifcopal Authority, the whole
Diocefe in refpe^ of the BifhoD being bv the Law but Parcs:hia f^.a, . • -. ,
10.^. 3.<7. ^uia&Buarcnus, paffim, as the who^c Province is faid g,^/^: .3
to be in refped of the Lord Archbilhop cf Cmerbury. At this & 54. " '
I Mafs
y^ Oj procurations J bynodals
Ibid.
Mafs the people ufed to make their Offering to the Bifhop, and one
of the caufes or reafons, why or wherefore the People in ancient
times were obliged to bring their Oblations to the Church, was
propter Confuetudlnem^ and that cents FeftivitatihuSy among which
the Feaft of Pomecofl was and is a moft fpecial one ^ at which Feaft
there was in many places here in England an Oblation, Anciently
made by inferioiir Churches and Parilhes to the principal Mother-
Church, and when<:e probably the word Pentecoftalia had its origi-
nal denomination. Thefe Offerings by the Canon Law were and
are onely due to the Clergy, and interdided to the Laity, fub dt-
flriUione Jnathematis^ lO q. i. C. Quia Sacerdotes^ &c. SanU:. Pa-
trmn^ ibi. In fome places the Deans and Prebendaries of Cathe-
Dia. Hill, dral Churches have them •, It is faid. That in ihe Cathedral Church
viicourfeof o{ Salisbury there is a greater and a lefs, diftinguilbed and known
Pmurat. j^y ^j^j^ difference of Mnjor & Minor pars Altaris. And in fome
^'^' ' Diocefes they are fetled upon the Bifhop and Archdeacon ,, and
made part of their Revenue, for which the King hath Tenths and
Subfidies. The Cathedral or the Mother-Church of IVorcefler was
Anciently, and before the diflblution, a Priory, and among other
Revenues had thefe Pemecoftalia or Whitfonfarthings yearly paid »
fnb nomine Oblationtim or Spiritual Profits tempore Pentecofies: After
the Dilfolution , when King H. 8. abc^ut the three and thirtieth
year of his Reign new founded and re-endow'd the faid Church,
he reftored thefe Pemecoftalia (after he had held them about a year
in his own hand) to the faid Church, which (as it is reported) the
Dean and Prebendaries thereof receive at this day, and as appears
by the Letters Patent :
Henricus Oftavus, &c. Sciatis (juod Nos de gratia noftra fpeciali^
^c ex certa fcientia^ ac mero motn noflris dedimus ^ concedimns^ ac per
frafentes damus & coneedimus Dccano (^ Capitalo Ecclefia Cathedralis
Chrifli & beata Marice Virginis Wigorn. omnes iUm Oblationes &
Ohventiones ^ five Spirit ualia proficu^ vidgariter "jocat. Whitfon- far-
things annnatim coIleSh. fve recepta de dtverjis Villatis in Comitat. no-
Jrris Wigorn. Warwic. & Heref. infra Archidiaconatum Wigorn.
di* tempore Pentecoft. oblata diEic nnper Prioratui beata Mari^ Wi-
gorn. jnodo dijfolnt. dndnm fpe^an. & pertinen. &c. Ex Archis Vecani
& Capit. Wigorn.
Rutin Glocefter^ it fcems, it is otherwife •, for there the Biihop and
the Archdeacon onely receive them •, nor can the Dean and Pre-
bendaries, that now are of the Cathedral, make any )uit claim to
them. For before the Supprelfion thefe Pemecoflals were ( inter
.alia) valued to the Archdeacon in the King's Books, as part of the,
Revei(jie
a7i(l Pentecoftals, 75
Revenue of the Archdeaconry. And as for ProcHrations aforefaid,
although they are ( as Dr. Cofen fays ) ratione Fifltatioms plerufTique q^ ^^/-^^
prjefianda, yet not folummodo fo ^ and thence it is held, that they polit. Ecckf.
are in fome places payable to the Archdeacon jnre Confuetudiftario^ Angl.t2ib.s.
even in the Bifhops Triennial year, fine Fifitatione ^ on the Arch-
deacon's part.
(11.) To this purpofe Remarkable is that Cafe of Proxies^ which
Sir John Davis ^ L'ne King's Attorney General in Ireland^ reports to
have been there Refolved and Adjudged, The Cafe was this, The Trin. 2 Tac.
Bifhop o{ Meth^ before the difToIution of Monafteries, had a Proxy in the Exc/k-
of fifteen fliiilings four pence payable yearly out of the Commandry 1"^', "/ ^""^^
of Kells in the County of Meth, parcel of the Pofleflions of the Ho« /f^' ^J'5^.
fpital o^ Si:. John ofjeritfalem in Ireland -^ and one other Proxy of Ambr Fortll
twenty fliillings, payable yearly out of the Impropriate Re<ftory Dr. 0/ /.«»»,
of Jrevet^ in the fame County, parcel of the Polfefllons of the Ab- D^wj-Rep.
bey of Thomafconrt in the County of DubUn. In the thirty third
year of King H. 8. the faid Hofpital and Abbey were fupprefled
and diflblved, and all the poilelfions of both the faid Houfeswere
veiled in the adual poneflion of the Crown by Ad of Parliament :
But in the faid Ad there is an Exprefs, Saving the Proxies to all Bi-
fhops and their SuccelTours. Afterwards the Bifhop of Aieth and
his Clergy (for that Biilioprick hath not any Dean and Chapter)
by Deed Inrolled, Dated 16 March .^ 36 f/. 8. granted the faid Pro-
xies (inter alia) to King H. 8. his Heirs and Succeflburs^ the
King being at the time of the Grant, and after, in the a(n:ual pof-
fcflion of the faid Commandry and Redory, out of which the faid
Proxies were payable. Afterwards Queen Eliz.abeth^ by her Letters
Patent, dated prinjo Novemb. in the thirty third year of her Reign,
demifed the faid Commandry and Redtory to Dr. Forth. And now
whether he fliali be charged with thefe Proxies.^ and the Arrea-
rages thereof, after the commencement of the Leafe, was the que-
ftion : And it was Adjudged, that he Ihould be charged therewith.
In the Argument of this Cafe there were three points moved and
debated-, (i.) Whether the Proxies were wholly extindt by the
fuppreflion and diflblution of the faid Religious Houfes, notwith-
ftanding the faid Saving in the Adt of Difolution ? (2.) Whether the
Biihop could grant the Proxies to the King? (3.) Whether the
Proxies in the hands of the King were excind by the Unity of Pof^
fefllon ? For the Firfl: point, it was objeded by Sir Ambrofe FortPs
Counfel , That the Proxies were extindt by the fuppreflion and
diflblution of the Religious houfes : For that the Fifitation of the
Religious houfes were the fole caufe of the payment of the Proxies^
Et ccjjante caufactjfat effedm. For the Religious houfes being gone
and jlifperfed, they Ihali not be afterwards: fubjcct to Vifitatton^
Y and
y,^ Of Procurations, Synodah
apd then when the Vifitation doth ceafe, the Proxies, being one y
Exhibition q-wen to the Fifitor for hv. Travelling^ rfc^r|e/ fhall ceale
alfo : YoiFromratio (as the Canonifts define if) eft Exhtbitio [urn-
ptunm neeefariorim f^^la Trdatis , qut Dicecefes ^erngrando Ecclejias
rabjeBas 'Vifttant. Yet it was agreed, That the rtfttatmi doth not
ceafe immediately upon the Surrender, or by theA^ o{ TarU^^
mem, which gives the Religious Houfes and their PofTeffions to
the Crown i for by that their Corporations are not diilolved : as
was held in the Cafe of the Dean and Chapter oi Norwich Co.p^r.
2 i< ^/f.p.8. 32 H.S. Br. Corporations^^. But when the Religi-
ous Perfons were difperfed and had relinquillied their HMt, RhU
and Order, for which they were Ftfttable , then their Corporation
was utierly difiblved , ^nd thereupon the Ftfitmion ceaks. And
in this cafe they rtfembled a Proxie due for Ftftation to an Annui-
ty for Coimfel or fome other fervice to be done : if the Counjel or the
Service be withdrawn, the Annuity determines. So if a Rent-
charge be granted for a Way, ftop the Way, and the Rent charge
fhall be ftopt alfo, 9 Ed. 4. 19. ^^Bd.^.i. 21 Ed. 3.7. So where
a Corodie is granted for certain Service to be done, the omiUion ot
the Service determines the Corodie, 20 Ed. fo. ult. it was alio laid,
That the duty is not annual, but contingent, and payable onely
upon every rifitation. And for the [_Saving-] they faid, it was a
Flattering Saving, which could not preferve the Proxies in being,
w>hich the Law had extinguiaied ; as was held 14 Ehz. Dyer. 3 i3.
That the tenures of the Obit, or Chantry-Lands, held of the Sub-
lets, areextind by the Ad of 1 Ed. 6. notwithftanding the Saving
in the faid Adt, propter abfurditat em: So the Pro.vies m this Cafe
(hall be extinft propter rbfurditatem. For as it is abfurd, that the
King (hould be fubjecT; to Attendance in refped of a Tenure : fo
it is abfurd, that the King fhould be fubjed to Fifitation, or to any
duty in refped thereof. Of the fame nature there are many
§avi»<rs put in H^al/ingham sC^k, Plow. Com. 563. v\hich are there
C2\]td. Flattering Savings. As to the Second point it was ol>jea:ed.
That the Bi(hop could not grant thefe Proxies to the King for two
Reafons •, the one drawn from the perfon of the King, the other
from the perfon of the Bifhop. (1.) For the King, Admit that he
were capable of fuch a Spiritual Office, as to be a rtftor of Re-
ligious perfons, yet he fiiall not have Proxies, by reafon of the In-
conveniency and Indecency, and alfo for the Jmpoffibility thereof-, For
it is neither Convenient nor Decent, that the poor Religious perfons
ihould bear the Charges of the King •, And it is alfo hnpojjible, for
by the Canon Law, Procuratio exhibenda efl fecundum cjualttatem perfo-
fia Vtfitantii ; and the Majefty of the Perfon of the King, and the
grandure of his Train is fuch, that by prefumptionofLawn^pri-
and Pentecoftah, 77
vate perfon can bear his neceflary charges, or make him entertain-
ment anfwerable to the quality of his perfon. (2.) For the Bi-
fhop. Although he may grant his Temporal polTeflions with the
Aflent of his Chapter or Clergy , yet thofe duties which he hath by
the prerogative of his Epifcopal Chair^ or as incident to his Spiritu-
al Fundlion, he may not grant j And they by the Rule of thz Cancn
Law are of Three forts, viz,- (i.) Suhfidium Cathedrarium, which
is a duty of Prerogative and Superiority. (2.) O^uarta Epifcopalu^
which was given to him for Reparation of Churches. (3.) Pro-
curatiorjesy for his Vifitation, as aforefaid, which is a perquilite or
profit of his Spiritual Jurifdidlion. As to the Third point, they
laid, That although a Proxie is a Perfonal thing, payable onely in
refped of perfons f^i/tfahle^ yet admit that thefe Proxies are become
Real, and that the Commandry and Rewftory are charged with
thefe Proxies^ then the unity of pofleflion doth extinguifh them in
the hands of the King, as a Seignory, Rent charge, Common,
and the like, are extinguifhed by the purchafe of the Ter re tenant,
if he hath the like eftate in the land, and in the thing which
charged the Land. And to this purpofe was cited the Cafe of
2//. 4. 19. a. where a Prior had an Annuity out of a Parfonage
by Prefcription ^ the Parfonage is after appropriate to the Priory,
the Annuity is extinguifhed for ever. But on the other fide, it
was anfwered by the King's Council, and Refolved by the Court,
That the faid Proxies were not extinguifhed by the difTolution of
the faid Religious Houles, but were well preferved and faved
to the Bifhop ^ and the Bifliop had well granted them to the
King, and the unity of pofleflion in the hands of the King made
but a Sufpenfion and no Extinguifliment of the faid Proxies.
(i.) As to the Firll point, it was firft; obferved, that thefe Proxies
had not their original in the primitive Church \ for St. Paul^ in
vifitifjg all the Churches which he had planted in u^fia and Europe^
demanded not any Proxies^ but laboured with his own hands for
his fubfiftence, left he fliould be burthenfome to the Churches.
Yet long after this, the Canon Law , which declares that Proxies
are due to Bifliops in their t^iftations.^ fays, that it is agreeable to
the dodlrine of St. Paul ^ Vt a qmhtts fpiritualia, recipimus ^ eifdem
Tenrporalia communicemtis^ Infiit. Jur.Can. L 2 c. de Cenfib. It was alfb
obferved, that that which we call Proxie or Procuracy^ is called by
the Canonifl:s Procuration for that upon every Vifitation the perfons
vifitable procurant neceflary Provifions for the Vifitors ^ which Pro-
vifions at fitft were made in Visuals, t^/x,. in Efculentis & Potulentis^
but that was with moderation and temperance , Ne. jejmiorHm do-
Grimm rubemibm bmcis predicant '^ But afterwards, when the
poiip and cxcefs of Vipors required fuch provifions as were grie-
Y 2 vous
7 8 Of ProcwatioTis, S)modals
vous and intolerable to the Churches and Religious Houfes, then
every Church and fuch Houfe was reafonably Taxed, and for that
every Proxie was reduced to a certain fumm of money , payable
yearly in the nature of a Penfion to the Ordinary, who had power
of Vifitation de rrero jure^ as is faid lo Eliz.. Dyer ij}. b. .• fcer
the Frocuratton of VJdluals was reduced to a certain funiiTi, the
Churches and Religious houfes paid it to the Ordinary yearly, albeit
he made not any Fifnation : And fo the Rule of Cejfante eanft cejfcit
ejfe^ns doth not hold in rr.is cafe. The certain fumms of money
which come in lieu of Froxies^ and retain the name of Proxies^ are
by ancient Compofition made parcel of the certain and fettled Re-
venues of the Biiliop , do remain for ever, and are not fubj^cfl: to
extinguifliment. And at this day the King himfelf pays and al-
lows Proxies out of all the Impropriations which he hath in his
polfeflion i for which reafon in every Leafe made by the King of a
Redory Impropriate, there is a Covenant on the Leflee's part,
that he fhall bear and pay all Proxies, Synodals^ Penfions^ &c. And
as for the [_Savin£} in the Ad of 35 /:/. 8. cap. 5. ic is not an idle
ov Flattering Savings but real and effedual ;, for it was agreed be-
fore, that thefe Proxies were in being at the time of making the
Ad, and are not extinguiflied by the Surrender of the Religious
houfes-, for their Corporations are notdiflblved till the Religious
perfons have relinquiflied their houfes, and are difperfed. And
fuch things as were in being at the time of making the Ad, may
well be preferved and faved by the Ad ; albeit the things which
w^ere extind before , cannot be revived by a Saving , without ex-
prefs words of Grant and Reftitution. As to the Second point ,
it was Refolved , That the Proxies in their original nature being
Duties payable for J^tfitationy are grantable to the King, and l^he
King is capable of fuch a grant, efpecially when the faid duties are
converted to a fumm of money certain , in the nature of a Penlion
or Annuity. For by the ancient Law of the Realm , the King
had power to Fi/it , refot m and corred all Abufes and Enormi-
ties in the Church: And by the Statutes made in the time of King
//. 8. the Crown was but remitted and reftored to his ancient ju-
rifdidion, which had been ufurped by the Biiliop of Rome, 33 JE. 3.
tit. ^yd del Roy 103. Reges facro oleo unEli Spirit Halts JurifdtQionpi
fmt capaces. And Proxies are profits of the Jurifdidion, lo H. 7.
18. Rex efi mixta perfona cum S^iCerdote : So the King fhaii have
Tithes by the Common Law, whereof no mere Lay perfon was
capable, 22 Affif. pi. 75. 1 1 //. 7. i. The King himfelf may ViJJt
his Free Chapels and Hofpitals, 8 JJf. p. 29. N. Br. 42. a. And
Caj[an£.^ in CatoL do. mund. par. 5. Conf. 24. cites a Text of the
Canon Law, viz. ^nod omnes Reges dicuntnr CUrici :, alfo anc|her
Text^
and Pe?2tecoflals. y^
Text, which faith, jQnod Caufa Spirit udii committi potefi Principi
Laico. And whereas it was faid, that in refped; of the grandure
of the King and his Train, competent Proxies cannot be provided
for him, and by confeqnence a Grant thereof cannot be made to
him;, that Objedion is removed, in that the Pr<7.vz>/ at the time of
that Grant were n^duced to certain reafonable fumms of money.
Alfo the Rnle of the Canon Law was not rightly and fully cited be-
fore:^ for the Rule is, Procnratio txhibenda eft fecundum qualitatetn
perferixvifitantis^ & [uhftantiam I'^tfitatorHm. It v;as alfo Kefoived,
that the Bifliop with the Ailent of his Clergy, might well grant
the proxies to the King, for that tlie Law hath qualified the perfon
of the King to receive fiich a Grant, albeit it be fuch a PrerogaLive
of the BiQiop as may not be aOigned to any other perfon : As the
Creation money of a Duke or Earl may be granted and furrendred
to the King, although it can be granted to a Subjecl:. Alfo the
Proxies being now reduced to certain fumms of money, and fo made
part of the certain fettled and perpetual Revenue of the Bilhop,
may be granted by him as well as a part of the Tithes or an An-
nuity, or any of his Rems, Services, or other Hereditaments Tem-
poral. And as to the Third point ic was alfo Refolved and Ad-
judged, That the Unity of Pofleirion of the Proxies with the Redo-
ries Impropriate and Religious Houfes, out of which ihe Proxies
are payable , do not extinguifh the Proxies in the hands of the
King, but fufpends the payment of them tanthm pro tempore^ quoitftjue,
or untill the King by his Grant fhall fever the one from the other.
To conclude, The Cafe of Tithes is parallel to the Cafe oi Proxies,
and agrees therewith in all points-. For as Inftrnthofi was the caule
of the payment of Tithes : So Vijitation , which is ever accompa-
nied with Inltrudion, Littl. ca, de Frarihshnoicne 30^.. was thecaule
of the Proxies, And as Tithes are now due and payable to Lay-
perfons which have purchafed Impropriate Rcdories , although
they do not give any Inftrudion : So Proxies are due and pay-
able to'Ordinaries, out of the Impropriations and Religious houfes
diflblved, although their ^//^^r.ow ceafes.. And as none can pre-
fcribe de nofi decimando^ as is commonly held in the common Law:
So the Canon Law hath a Rule, Qnod milla efl adverfus Procnra^
tionem pr<efcriptio^ Infl.Jnr. Canon, lib. 1. cap.de Cerifibus. Alfo Pro-
xies , which reftmble Tithes in other points, may be well com-
pared to, them in this point, viz,. Tliat they Ihall not be fubjeit
to ejctinguifhment by unity of poficinon.
CHAP.
8(
CHAP. X.
Of Diocefan Chance Hour s^ Commiffaries^ Officials and
Confijlories,
1. AVefcrtption of the Offce of fuch Chincdloxirs^ and how they dif
fer from the Bijhops Coojmtjfaries.
2. The Antiquity and necejfary ufe of fnch Chdinc^WoMTS,
3. What the Canons Ecclefiafiical require touching their Office,
4. Whether a Divine, that is not a Civilian, may be a Chancellour ?
5. Where^ and before whom the Bijhops Conliftories are held.
6. What is meant or intended by the word Confiftory.
7. The great Antiquity of the Bishops Confiftories.
8. That Antiquity farther confirmed and proved.
9. The difference between Conliftorium and Tribunal.
10. Incidents to the Chance Hours Office^ as he is Oculus Epifcopi.
11. A fhort digreffion touching Adminifirators.
12. The Laros and Canons touching Summoners.
1 3 . The Confiitutions Provincial^ what provifion there touching this Of-
fice of Summoners.
IJ^. A Judgment at Common Law in AEiion on the Cafe again fi an Ap-
paritor or Summoner, for citing a man wrongfully into the Ecclefi-
ajtical Court.
15. What a CommiiTzvy is J how to be qualified ^ with the Precin^s of
his Jurifdidion.
16. Whether a Commiflary may cite perfons of feveral Parijhes to ap-
pear at his Vifitation-C<?«rf ?
17. A Cafe at Common Law touching a CommifTary made by a Dean.
18. Whether a mere Lay-perfon mdy be a CommifTary or Official ? 0-
ther points in Law touching that Office •, and the Grant thereof.
19. Sufficiency or hifufficiency ^ or other defcEls in Chancellour s ^ Com^
tniffaricsj &c. properly cogniz.able not in the Temporal , but Ecclefi-
afiical Courts. ,
20. The Office of ChanceTourflnp (as to the Right of it) is held to be
of Temporal^ but (as to the Exercife thereof) of JEcclefafiical cogni-
zance.
21. Whether the Offices of Chancellour., Regijler.^ &C. in Ecclefaflical
Courts, be within the Statute 0/ 5 E. 6.
C I. )*T^ HE Chancellour of a Dio'cefe is a Church- Lawyer, or the
Stst. 52 H. 8. £ Bi/hop^s Lawyer , or that perfon who is commiiTionated
-^^^S' to be aiding and affifting to the Bilhop in his Jurifdidion, not d-)n-
finsd
Officials and Confiftories. 8 i
fined to any place of the Diocefe , nor limited ( as the Bifhops
Commiflaries are) onely to feme certain caufes of the Jurifdidion^
but every where throughout the whole Diocefe, fupplying the Bi-
Ihop's abfence, in all matters and Caufes Ecclefiaftical within his
Diocefe. By the Statute of iq H. 8. c. 17. a Doiflor of the Civil
Law lawfully deputed may exercife all Ecclefiaftical Jurifdidlion,
and the Cenfures thereof. By this Chancellour the Biihop within his
Diocefe keeps his Court according to the Ecclefiaftical Laws, in
all matters pertaining to his jurifdidion, or otherwife relating
more immediately to the Church or Government of the Clergy.
As Bifliops in their Epifcopal audience have had in all Ages the cog-
nizance of all matters Ecclefiaftical , as well Civil as Criminal,
within the JurifdicT:ion of their Diocefe : fo they have ever had to
that end their Chancellour s^ whom the Law calls Ecclcjiecdici or Eptf-
coporum Ecdici , perfons experienced in the Civil and Carton Laws,
to aflift them in matters of Judgment ; and thofe whom we now
call the Bi(hops Chancellours^ are the very felf fame perfons in Of-
fice, that anciently did exercife Ecclefiaftical Jurifdidion under
Bifhops, and were C2\kd Ecclefiecdici^ Papias per Gorhofred in L.
omnem, C. de Epi/c. & Cler. & in §. pr^ferejt^ ibid. Dr. IVidLFiem,
par. 2. cap. 2. feB. 3. Who (forafmuch as they have with them
the Bifhops Authority every where within the Diocefe for matters
of Jurifdidion, and in that the Bifliops and They make but one
Coriffiory ) are called the Bifliop's Vicars General., but in refped of
their Authority, which extendeth throughout the whole Diocefe,
as alfo to diftinguifh them from the Commiflaries of Bifliops, whofe
Authority, as it is reftrained onely to forae certain phice of the
Diocefe, fo alf:) to fome certain caufes of the Jurifdidion, limited
unto them by the BKhops-, for which reafon the Law calls them
Officiates Foraneos , (^uaf Off dales afiri^H cnidam foro Dioscefeos tan"
tum^ Dr. Ridl. ibid.
(2.) Dr. Ridley in liis View of the Civil and Ecclefiafiical L^tp, fays, .
thu ClyancelloHrs of Dioceks are nigh of as great Antiquity as Bi-
fhops themfelves, and are fuch neceflary Oflicers to Bifliops, that
every Bifliop mull of neceflity have a Chancellour ^ and that if any
Bifliop fhould feem to be fo complete within iiimfeif, as not to need
a Chance/lour^ yet the Archbifhop of the Province, in csfe of re-
fufal, may put a Chancellour on him, in that the Law prefumes the
Government of a whole Diocefe, a matter of more weight, tlian
can be well fuftained by one perfon alone-, and that although the
Nomination of the Chancellour is in the Bifliop, yet his Authori-
ty is derived froni the Law, Hcfiicnf. Sum. de Offic. Vicar, nu. 2,
For which reafon the Law underftands him as an Ordinary, as well
as |he Bifliopj Hoftienf. ibid. It is moft probable, that the multi-
plicity
82 Of DiGce[a?i Cha?ice'Joms, Commijjaries^
plicity and variety of Ecclefiaftical Caufes introduced the ufe and
Office of Chancellours originally :, for after that Princes had granted
to Eccleiiaftical perfons their Caufes and their Confiltories , and
circumftances varying thefe Caufes into a more numerous multi-
plication, than v;ere capable of being defmed by like former Pre-
fidents \ necellity called for new Decifions, and they for fuch Judges
as were experienced in fuch Laws as were adapted to matters of an
Ecclefiaftical Cognizance-, which would have been too prejudicial
an Avocation of Bifhops from the exercile of their more Divine
Fundion, had not the Office of the Chancellour in determining fuch
m.atters , been an expedient to prevent the faid prejudice or in-
convenience.
*'Edit. r^og. (3.) By the Conftitutions and Canons Ecclefiaftical ^ ic is Or-
Can. It 9, dered, That upon the days of the Vification every Chancellour,
'^°' I2J' Archdeacon, Commiirary and Official, as alfo at the ordinary
^^127.' ^^^^ y^\\tn Church-wardens are fworn , fliall deliver them fuch
Books of Articles as whereon to ground their Prefentments. Alfo,
that they (hall not fufFer any to be cited into Ecclefiaftical Courts
by any General procefs of QuQrum Nomina ^ nor the fame perlbn
to be cited into feveral Ecclefiaftical Courts for one and the fame
Crime, for which end th^ Chancellour and Archdeacon zxt within one
month next after the Bifhop's Vifitation, mutually to certifie each
other under their Hands and Seals, the Names and Crimes of all
fiicli as were prefented in the faid Vification. Nor fliall any Chan-
cellour^ or other Ecclefiaftical Judge, fuffer any Judicial A :t to be
fpedotherwife than in open Court, or in prefence of the Regifter,
or his Deputy, or other perfon by Law allowed to fpeed the fame-,
nor ftiall have (without the [ ifliop's confent) any more Seals of Of-
fice than one. Nor ffiall any man be admitted a Chmcelloar^ or to
exercife any Ecclefiaftical Jurifdidlion, under the Age of 26 years,
and learned in the Civil and Ecclefiaftical Laws, and is at leaft a
Mafterof Arts, or Bachelour of Law, and fliall firft have taken the
*:d°t 6 ^^^'^o^^'jP'^^^'^^^y ^" '^he Bifhop's prefence, or in open Court, and
* ' *^ ^' have fubfcribed the Articles of Religion, and fwear that to the ut-
moft of his underftanding he will deal uprightly and juftly in his
Office, without refped, favour or reward.
(4.) 5«/fo« Chancellour of the Bifliop ofCloitcefier moved for a
Prohibition to ftay a Suit before the Commiffioners Ecclefiaftical,
for that Articles were there exhibited againft him, becanfe he be-
ing a Divine, and having a Redtory with Cure of Souls, and never
brought up in the Science of the Civil or Canon Laws, or having
any Intelligence in them , took upon him the Office of the Chan-
^cellour of the Bifliop of GloMcefier^ whereas there were divers Ca-
nons and Ecclefiaftical Conftitutions, and alfo diredions from ye
late
Officials and Covfijiories, 8 5
late King Jamts^ and from the King that now is. That none fhould
be admitted to have thofe Offices of Ghancellourfhip to a Bifliop
unlefs he were inft:rud:ed and learned in the Canon and Civil Laws •,
becaufe divers Cafes triable in the faid Court ^re of weight, and
the Judges there ought to have knowledge of the Laws, othervvife
they cannot adminifter Right to the King's Subje^^s. Upon thefe
Articles Mr. Sutton being examined , confeil'ed that he was a Di-
vine, and had a Spiritual Living, and that the Office of the Chan-
ceilourfhip of the Bifhop is grantable for life, and that fuch a Bilhop
of GloHcefter had granted to him the Office for his life, which the
Dean and Chapter had confirmed, whereby he had a Freehold there-
in, and ought to enjoy it during his life. And that notwithftandtng
this Anfwer they intended to proceed againft him , wherefore he
prayed to have a Prohibition j but the Court denied it ; for if he be
a perfon unskilfull in thefe Laws, and by Law ought not to enjoy it,
they may peradventure examine that ^ for although a Lay-perfon,
by his Admiffion and Inftitution to a Benefice hath a Freehold, yet
he may be fued in the Spiritual Court, and deprived for that Canfcj
but if he hath wrong, he may peradventure by Affize try it ^ there-
fore a Prohibition was denied ^ . ^ ^''' * ^*f •
(5.) The Confiftory Court of each Archbilhop, and every Bi-cifc;^"?*
fhop of every Diocefe within this Realm, is holden before the Bi- Rep' vid.*
fliop's Chancellour in the Cathedral Church , or before his Com- dift. Cafe in
miliary in places of his Diocefe far remote and diftanr from the ^?J^*-.R?P-
Bifhop's Confiftory, fo as the ChamelloHr cannot call them to the X^^ff '^'.f.*^
Confiftory with any conveniency or without ^reat travel and vexa- ^' ^ ' "*
tion j for which realbn fuch Commiffaryis called C^mmijfarius Fo- 24H.4.C.12,
raneus. From thefe Confiftories the Appeal is to the Archbilhop
of either Province refpedively.
(6) By this word {_Confiflory'} is commonly underftood that
place or Ecclefiaftical Court of Juftice, held by the Biffiop's Chan-
cellour or Commiflary in his Cathedral Church or other convenient
place of his Diocefe , for the hearing and determining of matters
and caufes of Ecclefiaftical cognizance, happening within that
Diocefe ^. But when this word refers to the Province of Canter- • yid.Utt.?k
bury^ then the chief and moft ancient Conffiory is the Archbifhop's Vid.co. inft,
high Court of Arches ^ as the Court of Appeal from all other P"^' °*^^
Inferiour Confiftories within the faid Province. The fame word
fometimes refers to a Synod or Council of Ecclefiaftical perfons
conven'd together, or to a Ceffion or AflTembly of Prelates \ but
moft ufually to the Spiritual Court for the deciding of matters of
'Ecclefiaftical cognizance. The word Confiftory (Conffiorinm) is
fappofed to be borrowed of the Italians, or rather Lombards^ fig-
nifyijg asmuchas (Pr^torium) 01 Tribunal^ being a word wm«/gf«tf
2 J!*ri(
84 Of Uioce fan Chance llof/j's, CoJiwiijJaries,
jiirit^ and frequently ufed for a Council-houfe of Ecclefiaftical per-
<^CowelJn- ions, or the place of Jiiftice in the Court Chriftian^.
tcrp. verb. (7.) The Confiftories of Archbifhops and Bifliops are fuppofed
Connaory. jo begin within this Realm in the time of William the ConcfHeroar ^ ^^
'? c"d" w^ich feems very conjedurable from that Charter of his, which Sir
'io.tsq.ii^' -E^ ^<"^^ if^ ^^^ fourth part of his Inflttutes^ mentions to have found
0.74.^.958. enrolled, iR.i.nit. ^J. Which Charter, and Record of great
f Pro Decano Antiquity, aflerting not onely the Epifcopal Confiftories, but alfo
(fyrcapnuio jj^g Ecclefiaftical Turifdiction , it cannot be fuppofed but that it
Ecdeli£ Beat. , , -ji • •• r •
Maria' de ought to be recited here tn termtms per extenjum^ \yl.
Lincoln.
'\M\\\it\m\i% gratia Dei Rex Anglorum ^ CcmitibHS ^ Vicecomitibns
s Tbii Remi- & omnibHS Francigenis , & quibus in Efifcopatu Remigii 8 terras
gius wjf the habemibfts , falutem. Sciatis vos omnes , & €£teri met Fideles qui in
prjt Bip^op ef ^nglia manent , quod Epfcopales Leges , qua non bene, nee fecundnm
See being re- SanSlorum Canonum Pracepta ufque ad mea tempera in Kegno Anglorum
moved from fuerttnt, Communi ConciUo & Concilio Archiepifcoporum meorum & ca-
Dorchefter terorum Epifcoporum , & Abbatum , & omnium Frincipum Regni met
w Lincoln. Emendandoi judicavi, Propterea Mando y (^ Regia authoritate Pra-
cipio ^ ut nuHns Epifcepus vet Archidiaconus de Legibus Epifcopalibus
^InTurnoyita amplitts in Hundretto ^ Placita teneant , nee canfam, qua ad Ke-
Co. ubi fupr, giffig^ animarum pertinet, ad jHdicium Secularium hominnm adducant ^
fed quicunqne fecundum Epifcopales Leges de quacHnqne canfa vel culpa
, inter pellatus fuerit^ ad locum, quern ad hoc Epifcopus elegerit, ^ nomi-
■:,', . naverit, veniat, ibi/fue de cauptfua refpondeat, & non fucundum Hun-
'thUiimt drcttu'm', fed fectivdHm^Cdfiynes & Epifcopales Leges KeEtum Deb
intended of ^ Epifcopo fuo faciai. .Si "veh aliquis per fuperbiam elatus ad Juftitt-
^clurt^^hut ^f^^p^fcopdem'ben7rendni;otuerity vocetur femel, i:^ fee undo ^ &"ter-
tknttntbofe tioy.q^d fi nee fic ad emendationem venerit, Excommunicetur : ^ fi
limes the She- opus fuerii,' ad hoe vindtcand^^ fortttudo ^.'Juji'itfa Regis vel Vicecomi-
riff did held fij adhlbeMur :'Ille aut^m qui vccaius ad fufiitiam Epifcopi venire no-
Hundreda^'^"^ ^'^^' prt/ unaqukque vocatione- legem Epifcopalem emendabit : hoe etiam
Ira Co. ubi Defendo, ^ mea authoritate inter dico, ne ullus yicecom. aut prapofttus^
Tupr. vid. aut minifier Regis^ nee aliquis Laieus homo de Legibus qua ad Epifeo-
Mag. Chart, pum pertinent fe intromittat : nee aliquis Laieus homo alium hominem
Ex " Vt C -^^^ Jnfiitia Epifcopi ad judicium adducat \ Judicium vera in nulla loco
thereof}, portetur nifi in Epifcopali Sede, aut in illo loco quern ad hoc Epifeopus
conftituerit.
(8.) For the Confirmation of this Charter Sir Ed, Coke in the
forefaidpart of his Infiitutes refers us to the Regifterof the Bifhop
oi London. Willielmus Dei gratia Rex Anglorum R. Bainardo, &
S. de magna VtHa P. de Vabines, caterrfque mjis fidelibus de Eflex &
de Hertfordlhire, & de Middlefex, Salutem, Sciatis vos omnes, 'Hc-
Officials a?id Co7ififiories, 85
Jn which Charter the tenour of the forefaid Charter is recited
word by word in EngU^u The like Charter he alfo there fays is
m the Book of Charters of the Archbilhop of Canterbury. Where-
by It IS moft evident, that the Bifhops Confiftories are of great
Antiquity, and that they were ereded when Caufes Ecclefiaftical
were removed from the Toume (which is a Court of Record holden
before the Sheriff) to the Confillory k. So that this Law, made ' Co.innir.
h^X\i^ Conquer oHY^ feems (as Ui. BloHnt'm\\i% Nomo- Lexicon Q^l\{\^f^''''-''^^-^i'
word well obferves) to give the Original of the Bt^ms Conjiftory, ^°-^^='-
as It now fits with us diftinCi and divided from the Hundred or Connty-
CoHrt wherewith it feems probable, in the time of the Saxom, to
have been joynM 1. ' 'Vid.SeU,
(9.) Lindwood in the Provincial Conflitutions upon this word "'^^^y of
Confifiortum quoad Efifcofos , puts this difference betwen Conftflorl' ■^"''"» P"
urn and Tribunal: Tribunal (fays he) eft Locm in quo fedet Ordina-^'^' ^''*"
riHs inferior ; but Confftorium eft Locm in quo fedet princeps ad J«-
dicandum', Lindw. de foro Competent, c. excufis. in ver.Confttoria.
Albeit, according to the vulgar acceptation of thefe words, we re-
fer Tribunal to any place of Judicature, but Confift or ium\o th^t
onely which is of Ecclefiaftical Jurifdidiion. j . o ; ■■
(10.) This Chancellour of a Diocefeas he is OchIhs Epifcopi:,
ought to have an eye into all parts of the Diocefe, and hath im-
mediately under the Ordinary Jurifdidion of all matters Ecclefia-
ftical within the fame ^ not onely for reformation of Manners, and
punilhment of Enormities of a Spiritual nature by Ecclefiaftical
Cenfures -^ but alfo in: Caufes Matrimonial , and Teftamentary as
to the Probat of Wills,, and granting Letters of Adminiftration
ot the Goods of a perfon dying Inteftate, where there are not ^o»^
NotabiUa; in which cafe the Will (hall be proved, or Adminiftra-
tion granted by the Prerogative of the Archbifhop : And vvhere-
ever there is an Adminiftration duly granted, there the Adminiftra-
tor doth almoft in all points reprefent the perfon of the Inteftate
as legally, as any Executor can the perfon of his Teftator Tefta-
mentarily. For this Adminiftrator, in conftrudion of the Com-
mon Law, IS that perfon to whofe truft, care, condud and ma-
nagement the Goods and Chattels, Real and Perfonal, of the In-
teftate are committed by the Ordinary, or fuch other as under him
is duly authorized to grant the fame. But under this Notion or
Appellation of Adminiftrator , neither the Civil nor the Camn
Law knows any fuch Officer ^ onely they take notice of Admini-
ftrators as Governours of Perfons. Places or Things, Decrct. Can.
2^.q.').cap.i6.& Extra. Com. cap. II. And it is moft probable, that
the Common Law might Tas fome conceive) take its light, as to
this pfficer under this notion as now pradicable with us , from
2 2 the
86 Of Diocefan Chance Hours, Commijfaries,
STconftitmioB^ orthTimperour Leo L, i%. mlli l^cere C. dfi
Epifc & Cler. whereby it is ordained, That the Btjhop fh all fake care
to fee fuch Leaacies duly performed, of are bequeathed for the Redempti^
an of Captive?, tn cafe the Tefiator appoint not one tt> execute hu mil tn
that particdar. This power given to the Ordinary of making Ad-
minifoators in cafe of Inteftation, and of authorizing them to
«weft.z. ad as Executors, is very ancient by the Statute Law -. And
An..3Ecl.,.if any Ordinary, Chancellour, &c, having power by the Ad of
cap. 19. & 21// 8 to grant the Adminiftration of the goods ot him that
gi Ed. g. c. ^.gj.j^' intettate, to the Widow or next of Kin, (haU take any Re-
l!'c^p!'l ward for the preferring any perfon before another to the Admmi-
«>'eo.itift; ftration, it is ^r/Wy ». r- 1. ,. ui
par. ?. C.68. (i i.) A lawfull Adminiftratour may render his own Goods liable
vid.2R.2. jQ the Inteftate's Debts either by a Dfv^/^w>, or by a Falfe Plea
T^'lr^' ludicially ; and his Executour or Adminiftratour Ihail not fucceed
him in the Adminiftration to his Inteftate ( unlefs qualified to re-
quire Adminiftration of both Inteftates) but the Adminiftration
of the firft Inteftate's goods is de novo to be committed to his next
of Kin as de bonis non Adm. And if a Stanger by any Ad make
himfelf Executour de fon tort, the Creditours and Legataries may
not fue him as Adminiftratour, albeit it be an Admmiftration m
Fadt but muft fue him as Executour in his own wrong ^ who not-
withftanding is not any farther liable, than to the value of the De-
ceafed's Goods, as Affets in his hands. But m cafe the Ordinary
ftall, without granting any Letters of Adminiftration , make his
Letters Ad Colli ftndum, in that cafe he makes himfelf liable to
Anions pro tanto, as if himfelf were adually poflelTed of the Goods
©f the Deceafed. And here note. That Funeral expences, accor-
ding to the degree and quality of the Deceafed, are to be allowed
of bis Goods before any debt or duty whatfoever, for that is Opus
" Co. Infl. pium, or Charitativum ^. , ^ . r r-
p^ar.?,cap.97. ( 1 2.) And 3S in thefe Confiftories there is a great variety of Ec-
clefiaftical Caufes heard and determined, fo alfo the Officers be-
longing thereto are many, and of various qualities and degrees-,
whereof fome leem to be magis principales, others minus princtpalesy
but others (in the popular account) as mere Animalia tantum Ra-
tionalia , by whom the^ underftand Apparitors, who in truth are
Summomrs, and whofe Charader in Law is this, vtz.. He isjhap
perfon, whofe employment is to ftrve fuch Procejfes m iffne out of the
Spiritual or Eccleftaflical Courts^ and as a Mejfenger ta ctte Offenders
and others to make their appearance therein as occafion (hall require.
By the Statute of 21 H. 8. &. 5. as alfo by the 138*^^ Canon of the
Scclcfiaftical Gonftitutions , Apparitors are called Summoners ot
^H-mners ; by which Canon the Abufes and Grievances picte^uded
Officials and Confijiories, 87
to be pradtifed by fuch SHmmmers or j4pparitors are fafficiently re-
drefled : For as the multitude of them is thereby abridged and re-
(trained by Decreeing and Ordaining , That no Biihop or Arch-
deacon, or their Vicars or Officials, or other inferiour Ordinaries,
(hall depute or have more Apparitors to ferve their Jurifdidions re-
fpedively, than either they or their PredecefTours were accuflomed
to have Thirty years before the publiftiing the faid Ecclefiaftical
€onftitutions : So it is likewife provided by the faid Camn^ That
the faid Apparitors fliall by themfelves faithfully execute their Of*
fices, and not by any colour or pretence whatfoever caufe or fuffer
their Mandates to be executed by any MefTengers or Subftitutes s
anlefs upon fome good caufe, to be firfl allowed and approved by
the Ordinary of the place. It is alfo farther Provided by the faid
Canon, That they (hall not take upon them the Office of Promo-
ttrs or Informers for the Court, nor fhall exadt more or greater
Fees than are prefcribed by the 135?^ Canon of the faid Ecclefiafti*
cal Conftitutions. And in cafe either the number oi Apparitors de-
puted (hall exceed the aforefaid Limitation, or any of them offend
in any of the PremilTes, the perfons deputing them (if they be
Bifhops) fhall upon Admonition of their Superiour^ difcharge
the perfons exceeding the Number fo limited as aforefaid : But if
they were deputed by inferiour Ordinaries, fuch Ordinaries fliall
be fufpended from the execution of their Office, untill they have
difmiifed the fupernumerary Apparitors by them fo deputed \ and
the parties themfelves fo deputed Ihall for ever be removed from
the Office of Apparitors: And in cafe being fo difmifs'd and re*
moved, they do not defift from the execution of their faid Offices,
they are by the firft faid Canon to be proceeded againll and puni-?
ihed by Ecclefiaftical Cenfures as perlons contumacious to the Ju-
rifdidions. And finally, if upon experience the number of the
faid Apparitors be too great in any one Diocefe, in the judgment of
the Archbilhop of Canterbury for the time being •, in that cafe he is
by the faid Canon impower'd to abridge them to fuch a number, as
to himfelf fhall feem meet and expedient.
An Apparitoy came to the Church of a Parfon, and faid to him ^ReynerznA
He is to pay Tenths to fuch a one at fuch a place, four miles diltant ^'%'^'sCafe
from the Church, to whom the Parfon did. not pay them, and '"'^^'^^P-
thereupon the Biihop certified. That herefufed to pay them ac-
cording to the Statute of 26 /:?. 8. It was Refolved, The De-
mand was not according to that Statute, and the Summons to pay
them not according to the Statute, for the Demand ought to have
been by one who hath authority to receive them, ivhich the 5««2-
moner had not:, And they held the Demand not good, al-
though the. aiffiop certified it. was. duly mad.e. And. in the.
Caf^-.
88 Of Diocefa?i Chancellows, Commijfaries,
Cafe between the Queen and Blanch it was Refolved , That the
Certificate of the Bilhop , that the Incumbent refufed tO: pay his
Tenths, is not Peremptory, but Traverfablei and that the De-
mand of the Tenths mull be at the houfe of the Incumbent, and the
Refufal there, ^/<7rf's Rep. 1225.
FmlandGod- In an Action upon the Cafe againft the Defendant., the Cafe was
/)>'GCa('e, thisj kSHmmoncr in the Ecclefiaftical Court, having a Citation
i)/ffri;'sRcp. agajj-.(|; ^-i^e Plaintiff, Returned, That he had Summoned the Tlam-
tijf ^ whereas in truth he never fummoned him ^ for which the
Plaintiff was Excommunicated to his great damage. It was adjudged
that tlie Adion did lie.
(13.) By the Premilfes it is manifeft, that the Carton is very ftrid
and exadt both in abridging the Number, and redrelfing the
Abufes incident to the Office o{ Jpparitors -^ which Canon in raoft
Circumftances feems to run very parallel with that in the Provin-
cial Conftitutipns, Lindw. Provif7t Conflit. de Cenfibtti & Procnr. cap.
cum Apparitorum ^ the light whereof did probably influence it into
that Form wherein we now find it •, For by that Decree of the faid
Provincial Conftitutions it is Ordained, That a Bifliop fhall have
uniim Apparitorem Equitantem duntaxat^ where the Glofs well ob-
ferves, that by this non prohibetur Epifcopo qmn plures hai>eat pedt-
tes •, And every Archdeacon one in every Deanry, non equitantem
fed peditem^ where the Bifhop might alfo appoint Apparitors^ as ai-
fo in Rural Deanries : Glojf. Hid. verb. Duntaxat. And in cafe
more than thefe were deputed , or they found to offend in their
Office, the Penalty was as abovefaid, Deputames fint fufpenfi.^ do-
«fc, &c. & Deputatos ab Officio Apparitor nm per pet ho fufpendimpu if fa
faElo., Conftit. ibid.
(14.) AUion upon the Cafe ^ For that the Defendant being an Ap-
paritor under the Bifliop of Exeter., malicioufly and without colour
or caufe of fufpicion of Incontinency, of his own proper malice,
procured the Plaintiff Ex Officio , upon pretence of Fame of In-
continency with one Edith (whereas there was no futh Fame nor
julb caufe of fufpicion) to be cited to the Confiftory Court of
Exeter^ and there to be at great charges and vexation, until he was
cleared by Sentence, which was to his great difcredit, and caufe of
great Expenfes and Lofles, for which, &c. upon Not ^^uilty plo^d-
ed, and found for the Plaintiff, it was moved by Afhley^ Serjeant,
in Arreft of Judgment , That in this Cafe an Adion lies not :
For he did nothing but as an Informer, and by virtue of his Office.
But all the Court (abfente Richardfon) held , That the Adion
well lies : For it is alledged. That he falfo & malitiofe caufed him
to be cited , upon pretence of Fame where there was no offence
committed: And avers, That there was not any fuch Fame^^o
as
Officials and Confijiories, 8p
as he hid it malicioufly, and of his own head, and caufed him to
be unjuftly vexed, which was to raife gain tohimfelf^ whereupon
they conceived, That he being found guilty for it, the Adion well
]ies.i And therefore Rule was given to enter Judgment for the
Plaintiff, unlefs other caufe was fhewn. And upon a fecond mo-
tion, Richardfon Chief Juftice being prefent, judgment was given
for the Plaintiff?. The Confiftory of the Bifhop may in fome p Hill. 7 Car,
Cafes enjoyn Penance: Where Penance is enjoyned, there may j!?'^""47-^-j5'
be Commutation ^ but there may not be commutation for Penance, y^z/'croT *
where none is enjoyned. Commutation for Penance agrees with the Rep!
Cuftomes ufed in the Ecclefialtical Law, juftified in the Common
Law, in the Statute of Circus fpe^ie agatis in the time of Ed. i. and
Articuli Cleri in tlie time of £^. 2. Vid. Mich. 2 1 Jac. B. R. Dr. Bar-
ker'/ Cafe in Camera. Stellata^ Roll'/ Ref.
(15.) Commijfary [Comtnijfariw'} is a Title of Ecclefialtical Ju-
rifdiAion , adapted to fuch one as doth e^tercife the fame in fuch
remote places of the Diocefe, and at fuch diftance from the Bifhops
chief Confiftory, as that his Chanceliour cannot without too great
a prejudice conveniently call the Subjeds to the lame. The duty
of fuch Commiflary 01 Officiates Foranei^ is to officiate the Bilhop's
Jurifdi(5tion in the remoter parts of the Diocefe, or in fuch Parifhes
as are the Bilhop's peculiar, and exempt from the Archdeacon's
Jurifdidion. The Authority of the Commiflaries of Bifhops is
onely in fome certain place of the Diocefe, and fome certain caufes
of the Jurifdidtion, limited unto them by the Bifhops j for which
reafon the Law calls them Officiales Foraneos^ cjuafi Officiates aftriEli
cuidam foro Dixcefeos tamum : Glojf. in C lem. de Refcript. And by
the Canons and Conftitutions Ecclefiaftical, no perfon may be a
Commiflary or Official under the Age of 26 years, being at lealt
a Mafter of Arts or Batchelour of Law q. Yet in the Argument '^Can. 127-,
of Buries Cafe for a Divorce, the 5 Rep. 98. tlaere was cited 3 S EUz..
B. R. rot. 605. That if a Layman be made a Commiflary by the
Bifliop, it is good untill it be undone by fentence^ although that
the Canon fays. That he ought to be a Dodlour or a Batchelour of
Divinity. But 21 //.8. hath limited, That a Dodour of the Ci-
vil Law may be a Commiflary ^ jS^j-ysCafco-
(16.) Where a Commiflary. citing many perfons of feveral °>^'*^1?'
Pariflies to appear at his Vifitation- Court, Excommunicated them
for not appearing, a Prohibition was granted, becaufe the Ordi^
nary hath not power to cite any to that Court, but the Church-
Wardens and Sides-men, and thofe he may impannel, and give
Articles to them , for to enquire as the Juitkes of Affize , Fid. ^ , . , ^
^^•T'5'*'' Rep. poft
i ' Gafe CqI^.
' (17.) The.?erf. Jrfl&.
po Of Diocefan Chance Hours, CommiJ/aries,
« The Pre-
bend of Mat-
cherly's Cafe,
Noy Rep.
Whether the
Office of a
Commiffary
may be gran-
ted to a Lay-
per [on.
(17.) The Dean of the Deanry of Wolverhampton annexed to
the Deanry of Windfor, being a Peculiar, and having ordinary
JurifdiftioD, makes a Commiflary by his Deed, which is confirmed
by the Chapter : The Dean dies. The queftion was, if that was
good to bind his Succeflbur. By Doderid^e^ that fuch a Jurifdidion
IS Judicial and that Grant is but a Commifllon and Authority, all
times remaining in the Ordinary. True it is, That Ecclefiaftlcal
Jurifdidion in judicial Ads may be executed by a Subftitute j but
in Law they are the Ads of them who fubftitute the other, Vid,
II //. 4. 64. a. 7 E. 4. 14. 20 H.6. \. That a Commiflary may
excommunicate., and prove a Teftament : But that (hall be made
in the name of the Ordinary, 20 £. 3. And a Grant of that by the
Biiliop is not good , but during his life ; and Ihali not bind the
Succeflbur : For the Law hath appointed , that he fhall exercife
that jurifdidion (Sedevacante^ &c.) The Grant being v6id , can-
not be made good by the Confirmation of the Chapter. Coke ,
chief Juftice -^ If that fliould be a good Grant to bind the Succef-
four, then the Succeflbur cannot remove him ^ And yet the Succcf-
ibur fliall anfwer for the Ads and Offences of the Commiflary,
which would be too hard ^
(18.) In Walker'^ AElion upon the Cafe againft Sir John Lambe,
For dilturbance of the Plaintiff in exercifing of the Officialty of
the Archdeaconry of Leicefler^ granted by the Archdeacon of Lei-
cefter, and of the office of Commiflary of the Biftiop of Lincoln.
Upon Not guilty pleaded, a fpecial Verdid was found. That there
were ancient Offices granted by, &c. and Offices of Judicature
always granted to one perfon for life untill 1609. and in 30 E-
liz.. fo granted to Dr. Chippindale^ and after in 1609. granted to
him and one Ed. Clerk for their Two lives , no Surrender being
sCtuzlly mzde by Dr. Chippindale. Afterwards, 1614. both Offices
were granted, the one by the Archdeacon, the other by the Bifliop
to Sir John Lambe^ and to the faid Ed. Clerk, and thefe Grants con-
firmed by the Dean and Chapter \ That in Jn. 1611. Dr. Chippin-
dale died, and afterwards the Archdeacon who granted that Office,
and the Bifliop who granted the Office of Commiflary, died j and
the Bifliop of Lincoln who now is , and the now Archdeacon , by
feveral Patents granted thefe Offices to the Plaintiff, who was at
the time of the Grant of the Patent a Lay-perfon, and Batchelour
of the Civil Law onely : And they find the Statute of 37 /^. 8.
c. 17. That Lay-perfons married or unmarried, being Dodours of
the Civil Law, may be Commiffaries, Officials Scribes or Regi-
fters, and that the Plaintiff exercifed thefe Offices, and the Defen-
dant difturbed him. Upon this the matter being argued at the
Bar, was reduced onely to thefe Two Quefl:ions : ( i .) Whe^er
the
officials a?id Confiftories, pi
the Patent, to the PlaintifT, being a Lay-perfon, iand not a Dodtoc
of the Law, were good, or reftrained by the Statute of 37 //^^8,
And as to that point all the Court conceived. The Grant was good,
for the Statute doth not reftrain any fuch Grant : And it is but an
affirmance of the Common Law, where ic was doubted, if a- Lay
or Married perfon might have fuch Offices ^ and to avoid fuch
Doubts this Statute was made j which explains, That fuch Grants
are. good enough j and it is ^ut an affirmative Statute, and,t^er^
is ho reftridion therein : An4 although Dpdpurs of the La;^
(though Lay-perfons,; or Married) Ihall have fuch Offices, yet
this is not any reflridion, Thar none others fhall have them but
Dodtours of the Law , and the Statute mentions as well Regilters
and Scribes, as Commiiraries,;and that a Dodtour of the Law Ihaljlj
have them ^ y?t in common experience fuchperfons as are merely
Lay, and not Doitours, have enjoyed l^iich Qffices,..; And for this
very point was a Cafe in this Court^ iJUL ^'^■Etirz,,Rot.i^i. be-
tween Fratt and Stoch^^ where, upon Demurrer ., this Statute was
pleaded againit the . Plaintiff, to whom a Commiiraryfhip was
granted, being but a Batchelour of Law^ and he having ,grante4
Adminiflration , the Grant was adjudged good, and thQ,£ook,of
Entries y ^'^4^ & 489. was allowed good j wherefore they Re-
folved the Grant was well enough. And itjVvas alfo Refolved,
That where an Officer for life accepts of another Grant of the,
fame Office to him, and to another, it is not any furrender of the
firft Grant, .^.The Second point was , Whether the office of the
Officialty of the Archdeaconry, and the office of the CommifTary
oFthe Biihop, -begrantable by the Statutes of i £//;c. and 15 EUz..
becaufe it w^^s pretended, they were not parcel of the Poffeffions
of the Bifhoprick or Archdeaconry, fo as they could have any pro-
fits by them, and then the Statute doth not reftrain the Grants of
them. ,B,ut all the Court Refolved, they were within the words,
and,J']tent of the Statutes;, for they be Hereditaments ^ and are^
pertaining unto them j And that a Grant of thefe Offices to Two, ■;
where tliey were onely grantaf^le to One for life, and being granted
in Reverfion, it is a void Grant by the Statutes againft the Suc-
ceflburs^ For the Statutes reftrain all Grants of any thing to be
avoidable againft the SucceiTour, fciefides Grants of necejtity and
Leafes for three Lives, or 2 1 Years, where tHe ancient Rent is re-
fer ved : And all other Grants, as;' well of Orfijces as of other
things, not warranted by the Statuteis;, are made void as againft
the SuccelTours, Vid^ Coke 10. fo. 60. the Bifliop of 5^/ii/?«rys Cafe,
Cokj 5. fo. 14. and a Cafe betwixt Vaughan and Crompton 14 Jac.
at the Aflizes before the Juftices of the AfTize for the Office of the
Regifterfhip in Suffolk.^ and between Johns and Powell for the Re-
• A a gifters
p2 OfDiocefan ChameUourSy Covimijfaries,
sifters place ef Hereford^ where it was adjudged, That fuch Offi-
ees granted in Reverfion were void: whereopon Rule was given.
That Judgment fhould be enter'd for the Plaintiff, unlefs other
eaufe were ihewn. And afterward being moved again, judgment
«Trin. 7Car. was given for the Plaintiff". r-j/-r cr^ c
rot. 374. (19.) iNToy, Attorney, reports the forefaid Cafe of Dr. SHtton in
Walker verC" this manner, viz.. That he was deprived of the office of Official
Sir JJ^ambe, ^^ ^joHcefter by the Commiffioners 3 7^^. appointed to examine
€n. Rep. ^jjg.:^j^fe^ ^ of Chancellours,. and that he was not read in the Canon
U Civil Law. He faid. That time out of mind, e r. the Bilhops
have ufed in their Diocefes to beftow the Chancellourfhip , and
that A. the Bifhopof, &c. had made him Chancellouc by Deed;
and that^was confirmed by the Dean and Chapter, by which he
had a Frank tenement in that O ffice, &c. And Mr. GlanviU moved
for a Prohibition, but it v^s denied by the Court ♦, for it is law-
fiill for the Coimniffroners to deprive for Infufficiency, that being
within their CommiiTion-, but in a Suit i.n theEcclefiaftical Court
for the Profits of that Office, fiippofing the Grant of that by the
^edeceflbur does hot bind the Succeffour •, as it was in Dr. Barker'%
Cafe, ti]ere a Prohibition fhall- be awarded, becaufe the Profits are
Pafch. 2 Car. Tempoi'al. But We in the firft Cafe cannot try the Sufficiency .: Fid.
B.R. Dr.5«?- 8 £. 3. 70^. 9 E. 5. 11. So k is if the Ordinary deprive the Mafter
/fl72^sCafe, in of a Lay-Hofpital:, f<)r there he is not a Vifttor^ npr is it vifitable
my\ Rep. jjy jjjjj^ .^ ^^^ otherwife of a Spiritual Hofpital. f^- \ } - *^'^
C20.) The Bifljop of jL^»^«/ granted the office" (if ibis'Chance|^
Iburlhip- to Dt. Trevor and one Griffin^ to be exercifed by them ez*
ther jointly or feVerally. Dr. Trevor for sso-^- releafed all hi^^
Right in the faid Office to Griffin^ fothat G. was the fble Officer^
4nd then after ditd. After this the Bifhop grants -the faid Chan-
ceiiourihip to R. ( being a Practitioner in the Civil Law) for his life.
Dr. Trevor furmifing, that himfelf was the fole Officer by Survi-
vorfhip, made Dr. Lloyd his Subftitute , to execute^th^ faid Vffice
for him, and for that, tha! he was difturbed by R. the faid ii)i-. Tri?-.
i/j>r being Subftitute to the fudge of the Arches^ granted anlnhibi-
tion to inhibite the faid R. from executing the faid Office.' The Li-
bel contained. That one 'R,hindred and difturbed Dr. Lloyd, fo that
he €OHld not execute the faid Office. Againft thefe proceedings in the
' Arches a Prohibition was prayed, and day given to Vv. Trevor to
fhew caufe why it. fhould not be granted. They urged , that the
Office was Spiritual , for which reafon the dif(;uffing of the Right
thereof, appertaineth to the'Ecclefiaftical Courts. But all the Judges .
agreed, that though the Office was Spiritual , as to the Exercifing-
thereof, yet as to the Right thereof it was Temporal, and fhall
Ije. tried at the Common Law^ fox the part^^ hath a Freehold t^^jere-
in,.
Officials and Confiftories. 02
in, r>f 4 d- 5 />. d- AT. Dyer 1 52. 9. f^««f's Cafe, for the Regifters
Office in the Admiralty, and an Affize brought for that- And fo
the Chief Juftice faid, was adjudged for the Regifters Office to the
Bjfhop of Nsrwich in B. R. between Skinner and Ming-ey which
ought to be tried at the Common Law. And fo BUcQetch's Cafe
as IVarbmon faid, m this Court for the Office of Chancellour to the
Biihop of Cloucffier^ which was all one with the principal Cafe.
And they faid. That the Office of Chancellour is within the Sta-
tute of Ed. 6. for buying of Offices, d^c. And fo in the manner of mi/ 16 10
Tithing, the Prefcription is Temporal, for which caufe it Ihall be 8 Jac.B.R:
tried at Common Law. And Prohibition was granted according ^''^''^*'"«
to the firft Rule. So that if a Bifhop grant the Office of Chancel- „"'• ^'''"''
lourfhip to ^. and B. and after u^, rcleafe to B. and after B. die ST'* ^'^
and after the Bifhop grant it to R. againft whom^. fues in the EcJ '
clefiaftical Court, fuppoling his Releafe to be void, a Prohibition
will he, for that the Office is Temporal as to the Right of it
^ough the Office be exercifed about Spiritual matters. But if L^^u ,^„
Chancellour be fued in the Ecclefiaftical Court to be deprived for b! r Kin
Inlufficiency, as not having knowledge of the Canon Law, no Pro- 'our of c/o«.
hibition lies, for that they are there the proper Judges of his abi- '^^■^'^''^ ^^^e-
lity, and not th« Judges of the Common Law. Refolvcd per
^ (21.) In Dr.tre^vcrs Cafe, who was Chancellour of a Bifhop in pSiS
ll^ales^ it was Refohed^ That the Offices of Chancellonr and Regi- denied.
Iter, &c. in Ecclefiaftical Courts, are withi^i the St^tut^ of 5 Ed. 6. Hill, g Tac
caf, 16. which Ad being ^made for avoifjfog Corniption pf lOffi- Dr. Trevor's
cers, &c. and advancement of Worthy pqrfons, ihaJl be expoun- ,9^^' c-c^
ded moft beneficialiy to fnpprefs Corruption. And becaufe it ai- "^' "°
lows Ecclefiaftical Courts to proceed in Blafphemy, Herefie,
Schifm, c^c. Legality of Matrimonies, Probate of Wills, &c. And
that from thefe proceedings depends not onely the Salvation of
Souls, butalfo the legitimation oflfTues, &c. ajid other things of
great confequence^ It is more reafon that fuch Officers fliall be
withm the Statute, than Officers which concern temporal matters j
The Temporal Judge committing the convi(f? onely to the Gaoler,
but the Spiritual Judge by Excommunication, Vtabolo .- And there Co. ibid.
^s^Provifo in the Statute for them. And it was Refolved, That
luch Offices were within the PHr-viewof the faid Statute.
CHAP.
P4
•o
CHAP. XI.
Of Courts Ecc/ejtafiicaly and their Jurifdi^ion,
1. T%e Antic^uity of the Ecclefafticd Laws 0/ England \ and what tht
Chief EcclefiajUcal '^onrts are in general^ anciently callfd Halimots \
The Original efthe Pope's Vfurfation in England.
2. The Court of Con'iOQdiiiQn^ and Conftittttions 0/ Claringdon.
3. The High Court of ArchQS^ why fo called '^ the highefl Conffioryi,
the JurifdiElion thereof
4. The Judge of this Court^ whence called Dean of the Arches.
5. The great Antiquity of this Court-, the number of Advocates and
ProBors thereof anciently limited \ their decent order in Court.
6. The Prerogative Court <?/ Canterbury.
7. The Court of Audience, to whom it belonged, where k$ft, and what
matters it too}^cogniz.ance of
8. The Court of Faculties, why fo called, what things properly belong
to this Court ', As Difpenfations , Licenfes ^ ^c, with the original
tWrc/ i« England.
■ 9. what the nature of a Vifpenfdtion it, and who qualified to grant it.
10. A Dean made Bifhop^ the ^ing may difpence with him to hold the
lyeanry with'ihe [Bi(hop^ihk, by way vf Gommendam.
- Tti^'Wheth'tY A'^TVohihitim (i^s to"theEicleJfafiical Courts^ in cafe they
:^'^d<imM6w^^fPro'of^o^e^^^ •
"kl. bihers Cafi^s at theComrhon Law relating to Prohibitions to the Ec"
elefajkical Count, i —
13. The Court of Delegates.
H.'Tfctf'High Contmiffion G?«rf ; what the Power thereof was.
\\. The Court o/l^eview, or Ad Revidendum.
16. -T^^C<?«r^<//' Peculiars.
17. In what Cafes theEcciefiaflical Court jhall have JurifdiBion of mat"
ters fubfequtnt, having Jurifdidion of the original Suit.
38, Jn what Cafe the party, having allowed of the Jurifdidio», comes
too late to have a Prohibition. ■''■ -
19. The difference between a Suit- Atd inftantiam partis, and that ex
Officio Judicis, in reference to a General Pardon.
20. Whether a Clerk^ may flrike his Servant , or another in that cafe
the Clerk , and be blamelefs ?
a I. What manner of Avoidance jhall be tried at the Common Law, and
what in the Ecclefaflical Court,
ZZ. In what Cafe a fpecid Prohibition was awarded in a Suit of Tithes
after a Definitive Sentence. ■'
23. A-
P5
23 . A Prohibition to the Ecclefiafiical Conn in a Suit grounded on a Cu-
fiome againfi Law.
24. Prohibition awarded to the Ecclejiafiical Court ^ upon refnfal there to
give a Copy of the Ltbel.
25. Where the Ecclefiafiical Court hath cognimance of the Principal
they have alfo of the Acceflbry, though the Accejfory of matters Tem-
poral.
26. A Prohibition denied., upon a Suggeflion^ That the Ecclefiaftical
Court would not admit of proof by one U^itnefs.
27. In what cafe the Ecclejiafiical Court (hall have the cogniz.ance^ albeit
the bounds of a Village in a Pari(h come in queftion.
28. How the praElice hath been touching Prohibitions , where the Sub-
jeB matter in quefiion hath been of a niixt nature in reference to
Jurifdi^ions.
29. Certain Reafons for denial of Prohibitions to the Ecclejiafiical Court^
in fome cafes^ where they might lie.
30. Bounds of parifhes^ in reference to the Tithes thereof^ whether Tri-
able by the Law of the Land^ or by the Law of the Church.
31. Where the ^uejiion is more touching the Right of Tithe s.^ than the
bounds of the Parifh , the Ecclefiajiical Court hath had the cogni-
zance.
32. The Ecclefiafiical Court hathcogniz^ance of Adminifirators Accounts^
and no Prohibition lies.
33. Modus Decimandi fued for by a Par fan in the Ecclejiafiical
Court^ no Prohibition y Nor if he there fues for the Tithe of things
not Titheable.
34. In what Cafes a Cufiome ^ as alfo a Rent ^ may b^ fued for in tbs
Ecclefiafiical Court,
3 5. // Queftion be touching the Grant of a Regifler'*s Office in a Bi/hop'*i
Court., or touching the Tenth after feverance from the Nine parts ;
In what Court ^ whether Temporal or Ecclefiafiical ^ it jhall be tri'
ed.
3^6. A Woman exercifing the profejfion of a Midwife without Licenfe^
is therefore fued in the Ecclefiafiical Court:, whether a Prohibition
lies in that cafe.
37. The Bounds of a Pari^^ alfo whether fuch a Church be Parochial., or
onely a Chapel of Eafe ^ In what Court this is to be tried.
38. A Prohibition granted^ upon the dif allowance of an Executor's Plea^
of having Afiets onely to pay debts ^ tn oppofition to a Legacy fued for
in the Ecclefiafiical Court.
39. A Prohibition awarded upon a Sunt in the Ecclefiafiical Court for
an account of the Profits of a Benefice \ Otherwife^ in cafe the Pro"
jits were taken during the time of a Sequefiration.
40. A.
p6 Of Courts Ecckfutjiical-i
40. A fvohibitim granted to a Party to ft ay froceeMngt in his vwn Sttit^
and commenced by himfelf.
'41. Penfions arp' futt-ble omly in the Ecclejiaflical Court.
42. The right of lithe s coming in quefiion bc-tween the Par [on and the
Vicar ^ is a Suit pre per ly belonging to the Eccleftafiical Court.
45. Whether, and hew far ^ and in what manner the Ecclefiaftical Conrt
may take cogniz.ance of a Modus Decimandi, at large debated*
.44. When and how the Canon Law was introduced into this Realm,
( I. ) r> Efore the time of King William the Conquer our all matters,
D as well Spiritual as Temporal, were determined in the
Hnndred^Courts , where was wont to lit one Bifhop and one Tem-
poral Judge called yJldermannus ^ the one for matters of Spiritual,
the other of Temporal cognizance; But that was altered by King
William ( and it feems by Parliament , for it was by the affent of
the Bifhops, Abbats, and all the chief perfons of the Realm ) fQ£
he Ordained , That the Bilhop or Archdeacon Ihould not hold
Plea of the Epifcopal Laws, & qua ad regimen animarum pertinent^
in the Hundred ^ but by themfelves, and there adminifter Juftice,
not according to the Law of the Hundred , but according to the
Epifcopal Laws and* Canons, as appears by King ^»^w;»'s Charter,
Ron\hhx\6%, Irrot. 1 K. 2. pro Decane & Capitulo JEcclef. Llncolne , Jan. Jngl.
''^ati-iJF\ ^^^ ^'^' "^^^ principal Courts Ecclefiaftical ( whereof fome are
.go. ivej ir. . ^^^ ^^^ ^^ ^^^^ were, and are the Convocation Court , the High
Commiffion Court, the high Court oi Arches^ t\\t Prerogatinje Cowvt
of Canterbury^ the Court of Delegates, the Court oi Audience^ the
Court of Peculiars^ the Court of Faculties^ befides the Bifhops Con-
fiflories, the Archdeacons Courts, and the like, anciently called
Halimots, or Holy Courts. And the Saxon Kings, long before ^il-
Ham the Conejuerour^ made feveral Laws for the Government of the
Church: Among others St. £^ip^r^ begins his Laws with this Pro-
inthe Crf/e 0/ teftation, that it is his princely charge, Vt Populum Domini^ &
Pr«munire, y"^p^^ omnia fanUam Ecclefiam^ regat & gubernet. And King Edgar^
cp. Ijj i^.^ Oration to his Englifh Clergy, Ego^ (faith he) Conftantini, vos
Petri gladium habetis : jungamus dextras , & gladium gladio copule-
musj Ht ejiciantur extra caftra Leprofi^ & purgetur SariEtuarium Domini,
But upon the Conquefl: made by the Normans the Pope took the op-
portunity to ufurp upon the Liberties of the Crown of England \
for the Coneineror came in wiih the Pope'.s Banner, and under it won
the Battel. Whereupon the Pope fent two Legates into England^
with whom the Conqw cur called a Synod, depofed Stigand Arch-
bifhop of Canterhhry^ becDufe he had not purchafed his Pall in the
Court of Rcme ^ and difpiaccd many Biiliops and Abbats to m^<e
room
and tbeir JurifdiSlion. . ^7
roora far hh Normans. Among the reft the King having carnefHy
moved Wolfian Bifhop of Worc^er^ being then very aged, to give
up hls'Staf, was anfvpered by hira, That he w^ould give up his
Staff onely to him of whom he firft received the fame : And fo the
old Bifnop went to St. Edward's Tomb , and there offered up his
Staffs 2ind Ring^ with thefe words, viz^ Of thee^ O holy Edward, /
received my Staff and my Ring^ and to thee J do now furrend^r the f<{me
agatn. Which proves, that befoie the NormanCoxi^^t'^ the Kings
of England inverted their Bifhops pr Annuinm & BaccHlnm. By
this admiffion of the Pope's Legates, was the firft ftep, or entry,
. made into his Ufurped Jurifdidion in England j yet no Decrees
pafled , or were put in Execution touching matters Ecclefiaftical
without the King's Royal Aflent j nor wou'.d he fubrrit himfelf in
point of Fealty to the Pope, as appears by his Epiftle to Gregory
tb^ Seventh., Fid. Da. Re^. Cafe of Prammire.^ fo ?9. yet in his next
Succeflbur's time, in the time oilVilliam Rufw^ the Pope, by Anfelme
Archbifliop of L <i«^f r^«ry, attempted to draw Appeals to /^awf, but
prevailed not. Upon this occafion it was, that the King told ^«-
felme^ That none of his Bi(hopf ought to he fahjeB to the PopCy but that Hifl. Fcrrm^
the Pope himfelf ought to be fnbjeB to the Emperour^ and that the King len/js M. S-^^
0/ England had the fame abfolute Liberties in his Dominions as the Em- ^" Archiv.
perour had in the Empire. Yet in the time of the next King H. i. £°^j^y°"^^*
the Pope ufurped the Patronage and Donation of Bifhopricks, and ^*
all other Benefices Ecclefiaftical: at which time Anfelme told the
King, That the Patronage and Invejinre of Biftjopricl^s wa* not his ^
Right ^ becaufe Pope Urban had lately made a Decree^ That no Lay-per-
fan jhould give any Ecclefiaflical Benefice. And after this in a Synod
held at London, An. 1107. a Decree was made, Cui annuit Rex
Henricus., (iays Matth. Pkrif) that from thenceforth, Nunquam
per donationem Bacnli Pafloralis vel Annnli qiiifquam de Epifcopatfn
vel Abbathia per Regem., vel qiiamlihet Laicam manum^ inveffiretur in
Anglia. Hereupon the Pope granted, That the Archbifhop o[ Can-
terbury^ for the time being fhould be for ever Legatus Natus : And
Anfelme , for the honour of his See, obtained , That the Archbi-
fhop of Canterbury (hould in all General Councils fit at the Pope's
foot, tanquam alterins Orbis Papa. Yet after Anfelme'^ death, this
fame King gave the Archbiilioprick o^ Canterbury to Rodolph Biiliop
of London (fays Matth. Parif. ) Et ilium per Annulum & Pafloralem
BacHluminvefiivit., as before he had inverted William Gifford in the:
Bifhoprick of Winchefter^ contra novi Concilii Statuta ., as the fame
Authour reporteth^ And this, becaufe fucceeding Popes had bro-
ken Pope Vrbans promife , Touching the not fending of Legates
iviiQ England^ unlefs the King Ihould require it. And in the time
ofjhe nest fucceeding King, Stephen^ the Pope gained Appeals to
p8 Of Courts Ecclefi^jiical^
the Court of Rome ; For in a Synod at London conven'd by Henry
Bilhopof pr/«cky?rr, the Pope's Legate, it' was decreed, That
: Appeals fhould be made from Provincial Councils to the- Pope.
Before which time, ^ppeUationes in ufu non erant (faith a Monk of
that time) donee Henricus Wimon Epifcopus malo fno , dum Legnttu
ejfet, crudeliter intrufit. Thus did the Pope ufurp three main
points of Jurifdidlion upon three feveral Kings after the Con^juefi
(f(3r of King William Rufus he could win nothing,) viz.. upon the
Conqnerour^ the fending of Legats or CommiiTioners to hear and de-
termine Ecclefiaftical Caufes: Upon Hen. i. the Donation and
Inveftures of Bifhopricks and other Benefices: and upon King 5^^-
phen^ the Appeals to the Court of Rome. And in the time of King
Hen. 2. the Pope claimed exemption of Clerks from the Secular
Power.
(2.) The high Court of Convocation is called the Convocation
of the Clergy , and is the highefl: Court Ecclefiaftical , where the
whole Clergy, of both Provinces are either prefent in perfon, or
by their Reprefentatives. They commonly meet and fit in Parlia-
ment-time^ confifting of two parts, viz.. the Upper- houfe, where
the Archbifhops and Bilhops do fit \ and the Lower-houfe, where
the Inferiour Clergy do fit. This Court hath the Legiflative
Convocation a power of making Ecclefiaftical Laws, is commonly called a Nati-
Convocando onal Synod, conven'd by the King's Writ, direded to the Archbi-
Wrh. ^^"^^^op of each Province, for fummoning all Bifhops, Deans, Arch-
deacons, Cathedrals and Collegiate Churches, aiTigning them the
time and place in the iaid Writ ; but one Prodor fent for each
Cathedral and Collegiate Church , and two for the Body of the
inferiour Clergy of each Diocefe may fuffice. The higher houfo^
of Convocation , or the Houfe of Lords Spiritual , for the Pro-
vince of Canterbury confifts of 22 Bifhops, whereof the Archbifhop
isPrefident^ the Lower houfe, or Houfe of Commons Spiritual,
confifting of all the Deans , Archdeacons , one Prodor for every
Chapter, and two for the Clergy of each Diocefe, in all i66per-
fons, viz., 22 Deans, 24 Prebendaries, 54 Archdeacons, and 44
Clerks reprefenting the Diocefan Clergy. Both Houfes debate
and tranfad onely fuch matters as his Majefty by Commiffion. al-
%H.6.c.u loweth, concerning Religi'on and the Church. All the Members
of both Houfes of Convocation have the fame privileges for
themfelves and Menial Servants, as the Members of Parliament
have. The Archbifhop of Tork^ at the fame time, and in the like
manner , holds a Convocation of all his Province at Tork , con-
ftantly correfponding , debating and concluding the fame matters
with the Provincial Synod of Canterbury. The Antiquity of this
Court of Convocation is very great, ,for, ^according to Bec^i)
and thdr Jurifdi5iion.
99
St. Jftgnfime^ An. 686. aflembled in Council the Britain Bifhops,
and held a great Synod. The Clergy was never aflembled or cal-
led together at a Convocation by other Authority, than by the
Kings Writ, Vid, Parl. i8£.3. ««. i. Jmer Leaes Ins, An. Dcm. Coke, jur. 4,
727. A Convocation of the Clergy called. Magna fervornm Z)f » ^nf!- cap. 74.
frequemia. The jurifdidion of the Convocation is onely touching
inatters merely Spiritual and Ecclefiaftical wherein they proceed
JMxta Legem Divtnam & Canones San^a Ecclefu. The Lord Coke Ibid,
^ites fome ancient Records to prove, that the C ourt of Convoca*
tion did not meddle with any thing concerning the King's Tem-
poral Laws of the Land, and thence infers. That the Statute of
25//. 8. c^;. 19. (whereby it is provided. That no Canons^ Confii-
tmion or Ordinance fhould be made or put in extent ion within this Realm
by Authority of the Convocation of the Clergy^ which were contrariant
or repugnant to the King's Prerogative Royal ^ or theCuftcms^ Laws
and Statutes of this Realm) is but declaratory of the old Common
Law. And by the faid Adt, the Court o{ Convocation ^ as to the
making of new Canons, is to have the King's Licenfe, as alfo his
Royal Aflent for the putting the fame in execution. But towards
the end of that Ad there is an exprefs Vrovifo^ that fuch Canons as
were made before that A<5t, which be not contrariant and repug-
nant to the King's Prerogative , the Laws , Statutes or Cuftoms
of the Realm , fhould be (till ufed and executed , as they were be-
fore the making of that Ad. And if any Caufe fliall depend in
contention in any Ecclefiaftical Court , which fhall or may touch
the King, his Heirs or Succefiburs, the party grieved Ihall or may
appeal to the Upper-houfe of Convocation within fifteen days af-
ter Sentence given. Remarkable are the Conftitutions of Glaring- » Eh'z. cap. i,
don in the time of King H. 2. occafioned by the Pope's claiming ^°-"*^^''^'"*
Exemption of Clerks from the Secular power, fo contended for
by Thomas Becket., then Archbifhop of Canterbury^ againft the King,
as occafioned a convening a Common Council, as well of the Bi-
fliops as of the Nobility, at Claringdon in the time of //. ? . where-
in they revived and re-eftabJilhed the Ancient Laws and Cultomes
of the Kingdom for the Government of the Clergy, and ordering
of Caufes Ecclefiaftical. The principal Heads or Articles where- inthecafenf
of were thefe, viz.. (1.) That no Bifhop or Clerk fhould depart '^''^a^munire,
the Realm without the Kings Licenfe^ and that fuch as obtained f''^** ^^P-
Licenfe, fhould give Sureties, That they fliould not procure any ^'*
damage to the King or Realm during their abfencc in Foreign
parts. (2.) That all Bilhopricks and Abbies being void fliould
remain in the King's hands as his own Demefns, untill he had cho-
fen and appointed a Prelate thereunto ; and that every fuch Pre-
late fj^ould do his Homage to the King before he be admitted to
» B b the
100
Of Ccttrts Ecclefiajikah
' 'the place. (3.) That Appeals fhould be made in Caufes Eccle-
fiaftical in this manner, viz.. From the .Archdeacon to the Ordi-
rarv, from the Ordinary to the Metropolitan, from him to the
King, and no farther. (4 ) That Veter-^ertce ftould be paid no
more to the Pope, but to the King. (5- > That if any Clerk ihould
commit Felony, he fhould be hanged •, if Treafon , he fhould be
drawn and quartered. (6.) That it fhould be adjudged High Trea-
fon to bring in ^w\\%o{ Excommunication, whereoy the Realm Ihould
be curfed. ^ (7.) That no Decree fliould be brought from the Pope
to be executed in England, upon pein of Imprifonment and Con-
lifcation of Goods. „ , r r, ^» t
Socaliedm (3.) Aiches, or alma Curia de Jrcubui , fo called ot Bow- Church
Stat. 2$H.8. in London, by reafon of the Steeple or Clochier thereof raifed at the
«-*9- top with Stone Pillars in fafhion like a Bow bent Arch-wife, in
which Church this Court was ever wont to be held, being the chief
and mofl ancient Court and Confiftory of the Jurifdidtion of the
Archbifhop of Canterbury^ which Parifh of Bow together with
twelve others in London, whereof Bow is the chief, are within the
Teculiar Jurifdidion of the faid Archbilhop in Spiritual Caufes, and
exempted out of the Bifhop of London's Jurifdidion. The Judge
of this Court o( Arches is ftyled the Dean of the Arches, or the
Official of the Arches-Court, unto whofe Deanry or OfRcialty to
the Archbifhop of Canterbury, in all matters and caufes Spiritual,
is annexed the Teculiar Jurifdidion of the thirteen Parifhes , as
aforefaid ; having alfo all Ordinary Jurifdidion in Spiritual caufes
of the firft inftance with power of appeal, as the fuperiour Eccle-
« Stat. 24 H- fiaftical Confiftory, through the whole Province of Canterbury*
8.C.12. yet the Lord Cok^e fays ^ his power to call any perfon for any
"Ccinftk. ^g^j-g ^^^ ^^ g^y pg^{. of his Province within the Diocefe of any
11m ohr- Other Bifhop (except it be upon Appeal) is reftrained by the
chei. Stat, of 23 //. 8. c. 9. Yet his Jurifdidion is ordinary, and extends
23 H. 8. c. 9. it felf through the whole Province oi Canterbury , infomuch that
upon any Appeal made to him from any Diocefe within the faid
Province, he. may forthwith, without farther examination (at that
time ) of the Caufe , ifTuc forth his Citation to be ferved on the
Appealee, with his Inhibition to the Judge a quo,
Mich. 6 Jac. in Mtch. 6 Jac. C. B. there was a Cafe between Porter and Roche-
c.B. Porter o-gy. .^ yhe Cafe was this: Lewis and Roche fter^ who dwelt in Bffex,
and ^ock- .j^ jj^g Diocefe oi London , were fued for fubtradion of Tithes
Co Hb u. growing in B. in the faid County of Ejfex, by Toner, in the Court
& uic, of Arches of the Archbifhop of Canterbury in London • where the
Archbifhop hath a peculiar Jurifdidion of thirteen Parifhes, called
a Deamy, exempt from the Authority of the Bifhop of London^
whereof the Parifh of St. Mary de Arcubm is the chief. And a^^reat
QP'^ftion
and their JurifdiSiion.
lOI
Queftion was moved, Whether in the faid Court of Arches holden
ia London, he might cite any dwelling in Ejfex^ for fubtradion of
Tithes growing in Ejfex? or whether he be prohibited by the Sta-
tute of 23 //. 8. c. 9 ? Which after debate at Bar by Council, and
alfo by Dr. Ferrard^ Dr. Jamesy and others in open Court, and laft-
ly by all the Juftices of the Common Pleoi: A Prohibition was gran-
ted to the high Court o^ Arches. And, in this Cafe, divers points
were refolved by the Court-, ( i.) That all Ads of Parliament
are parcel of the Laws oi England ^ and therefore (hall be expoun-
ded by the judges of the Laws of England, and not by the Civilians
and Canonijis^ although the Ads concern Ecclefiaftical jurifdi(^i-
on. (2.) Refolved by Coke ^ chief Juftice , IVharl-urton , Daniel
and Fofter^ Juftices, That the Archbifhop of Camerbitry is re-
Itrained by the 23 H.S.cap. 9. to cite any one out of his own Dio-
cefe : For Dixcejis dicitur dijiinBio^ &c. qua divifa vel diver fa efi ab
Ecclefa alteripu Epifcopatus^ Cfr Commijfa gubernatio uniuSy &c. And
is derived a Di^ Vtto^ & EleUio^ ^nia feparat duos JitrifdiE^ones :.-
And bccaufe the Archbifhop of Canterhnry hath a peculiar jurifdic-
tion in London \ for this caufe it is fitly faid in the Title, Pream-
ble and Body of the-Aft, that when the Archbifhop fitting in his
Exempt peculiar in London^ cites one dwelling in EjfeXy he cites
him out of the Bifhop of London^s Diocefe ^ Therefore , out of
the Diocefe. And in the claufe of the penalty of lo /. it is faid,
Ont of the Diocefe^ &c. where the party dwelleth ^ which agrees with
the fignification of Diocefe before. 2. The Body of the Ad is ,
No perfon jha/i be henceforth cited before any Ordinary ^ 6cc. out of the
Diocefe or peculiar Jurifdi^iion^ where the perfon jhall be dwelling ^ and
if fo, then a Fortiori^ the Court of ^y-c^^i', which fits in a Peculi-
ar, may not cite others out of another Diocefe. And the words
{oHt of the Diocefe'] are meant of the Diocefe or Jurifdidion of the
Ordinary where he dwelleth. And from the Preamble of the Ad
the Lord Cok^ obferves and infers , That the intention of the Ad
was to reduce the Archbifliop to his proper Diocefe, unlefs in
thefe five Cafes, viz. (i.) For any Spiritual offence or caufe com-
mitted, or omitted, contrary to Right and Duty by the Bifliop, &c.
which word Jiomitted^ proves there ought to be a default in the
Ordinary. (2.) Except it be in Cafe of Appeal, and other lawful!
caufe, where the party fhall find himfelf grieved by the Ordinary,
after the matter there firft begun \ Therefore, it ought to be firft be-
gun before the Ordinary. (3.) In cafe the Biftiop or Ordinary, &c.
dare not, or will not Convent the party to be fued before him.
(4.) In cafe the Bifhop or Judge of the place, within whofe jurif-
didion ^ or before whom the Suit by this Ad fhould be begun and
prbfecuted, be party, diredly or indiredly, to the matter or
* B b 2 caufe
I02 Of Courts Ecclefiafticah
eaufe of the fame Suit. (5.) In cafe any Bifliopor other inferiour
Judge under him, &c. make Requeft to the Archbifhop , Bifhop ,
or other inferiour Ordinary or Judge ; and that to be done in Cafes
onely, where the Law Civil or Common doth affirm , &c. The
Lord Co^ takes notice alfo of Two Frovifoes in that Ad j which
do likewife explain it, viz.- That it fhall be lawfull for every Arch-
bifhop, to cite any perfon inhabiting in any Bifhop's Diocefe in his
Province for matter of Herefie : By which (fays he) it appears,
That for all Qaufes not excepted , he is prohibited by the Ad.
(2.) There is a Saving for the Archbifhop, calling any perfon out
of the Diocefe where he fhall be dwelling, to the probat of any
Teitament ; Which Provifo fhould be vain , if notwithftanding
that Ad he fhould have concurrent jurifdidion with every Ordi-
nary throughout his whole Province : Wherefore it was concluded,
That the Archbifhop out of his Diocefe, unlefs in the Cafes ex-
cepted, is prohibited by the 23 ii/. 8. <:. 9. to cite any man out of
any other Diocefe : which Ad is but a Law declaratory of the An-
cient Canons, and a true Expofition thereof, as appears by the Ca-
non, Caf. Romana in Sext. de Afpellat. & c. de Competemi. in Sext.
And (as the Lord Coke obferves ) the Ad is fo expounded by all
the Clergy of England^ at a Convocation at London^ An. i Jac,
160;. Can. 94. who gives us farther to underftand in this Cafe be-
tween Vorter and Rochefter^ That the Archbifhop of this Realm,
before that Ad, had power Legantine from the Pope •, IJy which
they had Authority, not onely over all, but concurrent Authority
with every Ordinary, &c. not as Archbilhop of Canterbury^ &c.
Qaic Porter but by his Power and Authority Legantine. Et tna funt genera Le-
^d Roche- gataranJ^ (1.) Quidam de Latere Dom. Pap£niittuntur^ &c. (2.) Da^
fuDr °"^ ^''^'■> '^i*^ fi'^ff'i^^ter m Legatione mittuntiir. &c. (3.) Nati feu Nar
tivi.^ ejui fuarutn Ecclefiarum pratextu Legatione funguntur^ & funt
Quatmr^ viz. Archiepifcopw Cantuarienps ^ Eboracenfts^ Remanenjts^
(^ Pifanm : Which Authority Legantine is now taken, away and
utterly aboiifhed.
(4.) It is fuppofed, that the fudge of this Court was originally
ftyled the Dean of the Arches., by reafon of his fubflitution to the
Archbifhop's Official., when he was employed abroad in Foreign
EmbalTies, whereby both thefe names orftyles became at lafl in
* Gowel. In- common underftanding , as it were , Sfnonymow c. For the Of-
terpr. verb, ^cial of this Court, and the Dean of the Arches by fuch Subftituti-
Axches. Qj^ j^g^ I^Qjj^ ^j^g ^gj^^ juridical Authority, though with diftind
ftyles in feveral perfons, as appears by that which comes next to
the Preface to the ancient Statutes of that Court, ordained by
•J Temp. Robert Winchelfey Archhlihop of Canterbury '^, in the Stat, toucb-r
Ed. i» An, ing the Form of the Judges Oath, where the wojds are, tarn Offi--
^^^'" eialif,
and their JurifdiSlion, 102
cialis diUa CurU, qu^m Decatius de ArCHbi44^ futu Commijfariua Gene-
ralis, &c. For he that was the Archbiihop's Official in this Court
was heretofore obliged to conftitute the Dean of the Arches zs his
Commiflary General in his abfence -, as alfo appears by another of
thofe Statutes or Conftitutions of that C ourt, ordained by John
Whitgift, Archbifhop of Canterbury % the Title of which Sta- c An. 5 E!iz.
tute is, DeDecano Ec cle fix Beat <& Maria de Arcuhta Loud, wherein "sSs'.
we find, viz. StatHtmus^qtiod Officialis dicla Curia:, tcfieatitr Vecamm
Ecclefa fnH m, con (}ir mere in ipfim abfentia Coti^rr.iffartHni. Alfo by the
Statutes and ConiUiuticns of this Court made by Afatt hew Parker
Archbifhop of C^merbury f, it is exprefly Ordained , That neither f Edit. Lam-
the Dean or Offictal of the Court of Arches, nor the Auditor of mat- beth. 6 Maii
ters and caufes in the Court of Audience of Cam. nor the Judge of ^"' 573- &
the Prerogative Court, fhall excrcife the Function or Profeflion of ^°°^^"** '4*
an Advocate in any Court belonging to the jurifdidion of the faid
Archbifhop on pein of Excommunication and Sufpenfion ?. In this s vid. did.
Court oi Arches the ProEhors thereof do wear fuch Hoods as Batche- Stac. M.S.
lours of Arts wf^ to wear in the Vniverfties ; which Habit or For-
mality was firft cnjoyned by Henry Chichley Archbifhop of Canterbury.,
in the year 1435. ^ The ftyle of this Court is. Alma Curia Cant, h^nm Brir
de Arcubns Lond. And the Appeal from it doth lie to the King in 6 a. 6. An.*
Chancery K 1435. *
(5.) This Court of the Arches anciently holden in Vow-Church' 25 H. 8.19;
of London, is of very great antiquity ; the Lord Cche in the fore-
cited place lets us to underftand , that he meets with it in a very
ancient Record of a Prohibition k, ]„ Curia Chrifiianitatis coram^mijE.u
Decano de Arcubm London. The Statutes and Ordinances of which coram Rege.*
Court are very ancient, and to which thofe ordained by i^oi^erf ^o^-8. Pafch*
Winchelfey Archbifhop of GiwrfrW^, above 380 years fince, dore-i^^'^y^
ferr : Robertus Winchelfey Archiepifcopm Cantuarienfs defcripft Jndi-GM'.de
Cibm, Advocatis, Procuratoribm, aliifque miniflris Alma, fua Curia de Mortm mart
Arcubm jura quad am & Statuta , qua ipfe in Templo Arcuate fedens C('^''^'c«A &c. .
pro Tribunali legit at que obltgavit. Quint 0 Idus Novemb. Anno 1295. ^pj-^^^""*
Willtam de Sardinia being then his Officirl, and Henry de N a(fm-^^^\rif^"
ton Dean of the Arches, the faid Official's Commifljry General ;,fo. 201. '
By which Statutes it was ordained , That the Advocates belong-
ing to the faid Con fiftory, fhould not exceed the number of 5/.,v-
tetnx, nor the Prodors above the number of Ten-^ nor Ihould any
of ihem without the fpecial Licenfe of the Prcfident of that^on-
filtory abfent themfelves thence, by any attendance on any other 1 m. s. Stat.
Gonfiftory, at fuch times wherein Caufes were to be heard in the c«r.\/e ^r-
Arches 1 •, And for the difpatch of the Caufes of poor and indi- f«^- §• dem*
gent perfons, the Judge may by the faid Statutes aflign them Ad- '"^''''/'^^''•.
vocjtes and P,r<^dJor?.,to profecute for them Gratis & Charitative^ ^1 Comluf.,.
* " - ' ^nd. StatHt,
104 Of Courts Ecclefiaftkal,
and that nothing be paid for the Procefs, Ad:s of Court, Exami-
"• Dia. Stat, nations , Sentence, or other Court-Fees in fuch Cafes ™. In
§. Item Pro- which Court the fenior Advocates by the fame Statutes are to take
curatores. j-j^^j^ places oppofite to the Judge, the others on each fide of him,
co/ij^. Undw*. nigher to, or remoter from him according to their Seniority, the
Deoffic.jH J. likt Order in Court to be obferved alfo by the Prodors. And
Orci. cap. sta- Chq]^ was the Devoiion of thofe days in that Confiftory, That ia
f»"mf'glli]: Qr^jej- to the imploring of the Divine sfliftance on their pro-
Paupercs. ceedings in Judgment, it was farther ordained Thau Divine Ser-
vice fiiould be celebrated in Bow-Church immediately before the
firft, and after the laft Seffion of every Term, the Judge, Ad-
vocates, Prodors, and all other Officers of the Court to be prelent
thereat.
(6.) The Prerogative Court of the Archbifhop of Canterbury is
that Court wherein all Tcftaments are proved , and Adminiftra-
tions granted of the Goods and Chattels of fuch perfons, as dying
within his Province, had at the time of their death Bona Notahilia
in fome other Diocefe, than that wherein they died;, which Bona
Notahilia regularly muft amount to the value of Five pounds, fave
in the Diocefe of London^ where it is Ten pounds by Compofition.
Go.lnft. par. The Probat of every Bilhop's Teftament, and the granting of the
4. cap. 74. Adminiftration of his Goods and Chattels , albeit he hath not
Goods but within his own Jurifdicdon , doth belong to the Arch-
bifhop. The like Court hath the Archbifhop of Torh^ From
this Court lies the Appeal to the King in Chancery. If one make
Vigot znA two Executours, one oi [event een years of Age, and the other un-
Gd/cozn'sCafejjgj-^ Adminiftration during the Minority is void, becaufe he of
pZ^i.'(^ffs f^'"^"^^'^" y^^^^ old may execute the Will, if Adminiftration during
in Larpy &c. the Minority in fuch cafe be granted y and if the Adminiftratour
brings his Adtion , the Executor may well releafe the Debt. One
was cited to appear in the Prerogative Court of Canterbury^ which
lived out of the Diocefe of Canterbury , and upon that he prayed
Srat. 2 3 H. 8. Prohibition upon the Statute of 23 //.8. c. 9. which willeth, that
€ap. 9. none fliall be cited to appear out of his Diocefe, without aflent of
the Bifhop, and Prohibition was granted : And yet it was faid,
that in the timeof //. 8. and Queen Mary that the Archbifhop of
Canterbury had nfed to cite any man dwelling out of his Diocefe,
and within any Diocefe within his Province, to appear before him
in t% Prerogative Court , and this without the alfent of the Or-
dinary of his Diocefe : But it was refolved by the Court, that this
was by force of the power Legantine of the Archbifhop, that ( as
Trin. 8 Jac. Lindwood faith) ought to be exprefled in the Prohibition, for the
Brownl. p. 2. Archbifhop of Canterbury., 'Torkj^ Pi/a and Reymes ^ were Legati
nati^ and others but Legati a latere. The Lord Coke., in his tifti-
tVites,
and their Jurifdi^ion, 105
tutes, p4r. 3. caf 69. gives os theRefolutioDS upon the Statute of
21 H. 8. caf. %. That if a man makes his Teftament in paper,
and dieth poffefTed of Goods and Chattels above the value of 40/.
and the Executour caufeth the Teftament to be tranfcribed in parch-
ment, and bringeth both to the Ordinary, &c, to be proved; It
is at the Election of the Ordinary, whether he will put the Seal and
Probat to the original in Paper, or the tranfcript in Parchment;
but whether he put them to the one or to the other, there can be
taken of the Executour, &c, in the whole but 5/. and not above;
viz.. 2s.6d. to the Ordinary, &c. and his Minifters, and 2s.6d,
to the Scribe for Regiftring the fame : or elfe the faid Scribe to be
at his liberty, to refufe the faid it. 6d. and to have for writing
every ten Lines of the fame Teftament, whereof every Line to con-
tain ten inches, one penny. If the Executour defire that the Te-
ftament in Paper may be tranfcribed in Parchment, he muft agree
with the party for the Tranfcribing ; but the Ordinary, &c. can
take nothing for that, nor for the Examination of the Tranfcript
with th§- Original, but onely 2 s. 6. for the whole duty belonging to
him. Where the Goods <?f the deceafed do not exceed five pound,
the Ordinary, .#c. (hall take nothing, and the Scribe to have one-
ly for writing of the Probat fix pence, fo the faid Teftament be ex-
hibited in writing, with Wax thereunto affixed ready to be fealed.
Where the Goods of the deceafed do amount to above the value of
five pound, and do not exceed the fumm of forty pounds, there (hall
be taken for the whole but ^s.6d. whereof the Ordinary, &c, is.
6 d. and iid. to the Scribe for regiftring the fame. Where by cu-
ftome lefs hath been taken in any of the Cafes aforefaid, there lefs
is to be taken. And where any perfon requires a Copy or Copies of
the Teftament fo proved, or inventory fo made, the Ordinary, &c.
ftiall take for the Search, and making of the Copy of the Teftament
or Inventory (if the Goods exceed not five pounds) fix pence •, and
( if the Goods exceed five pounds , and exceed not forty pounds )
twelve pence. And if the Goods exceed forty pounds , then two
fliillings fix pence, or to take for every ten Lines thereof of the
proportion before rehearfed, a peny. And when the party dies in-
teftate, the Ordinary may difpofe fomewhat in pious ufes, notwith-
ftanding the Ad of 31 Ed. 3. but with thefe Cautions: (i.) That Mich, aojic.
it be after the Adminiftration granted, and Inventory made, fo as f ^'"f^- ^^'^-
the ftate of the Inteftate may be known, and thereby the fumm may %nlli\i^-^c
appear to be competent. (2.) The Adminiftratour muft be called co. inft. par!
to it. (5.) The ufe muft be publick and godly. (4.; It muft be 3. cap. 69.
exprefled in particular. And (5.) There muft be a Decree made
of it, and entred of Record.
;f
» (7.) The
lo^ Of Courts Ecclefiajlical,
(7.) The Court ofjHdience^ Curia AudientU Cantmrienfis. The
Lord Coke touching the jurirdidion of Courts, taking notice of this
" Co. Tnft.4. of the Audience among' other of the Ecclefiaftical Courts ", fays,
par. cap. 74. yhat this Court is kept by the Archbifhop in his Palace, and med-
dleth not with any matter between party and party of any conten-
tious jurifdidlion, but dealeth with matters fro forma^ and Confir-
mations of BKhops Eled^:ions, Confecrations and the like and with
matters of voluntary jurifdi^tion, as the granting of the Guardian-
fhip of the Spiritualties Sede vacante of Bifhops, Admiffions and In-
ftitutions to Benefices, difpenfing with Banns of Matrimony, and
fuch like. This Court did belong to the Archbifhop of Canterbu-
ry^ and was in point of Authority equal with, but in point of Dig-
nity afld Antiquity inferiour to the Court of Arches. It feems that
anciently the Archbifhcp oi Canterbury did hear divers Caufes of
Ecclefiaftical cognizance Extra-judicially, and at home in his own
Palace, wherein, before he would come to any final determination,
his ufage was to commit the difcuflion thereof to certain perfons
learned in the Laws Civil and Canon , who thereupon were ftyled
his Auditors^ whence in procefs of time it center'd in one particu-
lar perfon ftyled, Caufarun: Neyotiorumqite Audienti^e Cantuari-
enfis Auditor feu Oficialis : And from hence the Original of this
Court is properly derived. With this Office of the Auditor the
Chancery of the Archbifhop is faid to have been heretofore com-
monly joyned, not controverting any matters of contentioui jurif-
di(n:ionin any decifions of Caufes heivcen Plaintiff and Defendant,
Vid. Hift. de but fuch onely as were Voluntaria Jurtfdtciioni^ & ex Officio^ tou-
, Antiq. Ecdef. ching fuch things onely as are fore-fpecified and fuch like. By the
Britan. Provincial Conftitutions it is Ordained, That for the eafe of the
People they may at times convenient (to be affigned by the Bifhop)
have accefs unto their Diocefan, Et quod Pr^lati perfonaliter Audi-
ant quer el as in his Cathedral, or next Parochial Church, velinali-
qua Maneriorum fuorum Capella^ fi talis fuerit^ Lindw. de Offic. Jud.
Ord. cap. Statuimui., in gloiJ. rerh. in Publico. It feems not altoge-
ther improbable, but that from the pradice hereof this Court of
Audience ancienUy had its Original, asaforefaid ; And although it
be not now in ufe as heretofore, yet confidering the Subjed-matter
it onely took cognizance of, it was a good Expedient to prevent
many Suits at Law in Foro Contentiofo.
(8.) Faculty for, Court of Faculties'} in the fenfe here meant
and intended muft not be underftood according to its original and
genuine fignification, but as a term of Art according to a limited
conftrudion, reftrained under that peculiar notion and particular
underftanding which the Law hath of it, in reference to a branch of
the Ecclefiaftical jurifdidion : And fo it is underftood and cq-ii-
motily
and their Jurifdi^ion, 107
monly ufed for that Privilege or efpecial Power which is legally
granted to a man by Licenfe, favour, indulgence and difpenfation
10 have or to doe that , which othcrwife by the Canon Law he
could not \ as to eatFlefh upon days prohibited •, to marry without
Banns firft publifhed •, to hold two or more Ecclefiaftical Benefices
incompaiible :, the Son to fucceed the Father in his Benefice , and
fuch like. A Faculty granted to one, who is not Incumbent, to take vid. Vaugh,
a void Benefice, is void: But a Faculty to one, who is incumbent Rep. f. 2$.
of a Benefice to retain the fame is good. It is called Faculties in
the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of
the Co\\no{ Faculties., although it holds no Plea of Controverfieo, "Co. par. 4.
It belongs to the Archbifliop o^ Canterbury^ and his Chief Officer I°"' <^ap- 74-
thereof is called Magifier ad Facultates , whofe power is to grant
Difpenfations to the ends and purpofes aforefaid j and fo may eve-
ry Diocefan , as to that of Marriage , and eating of Flelh on days
prohibited. Faculty (according to Sir Ed. Coke in the place fore-
cited ) fignifies a Difpenfation: fo that Facultates (in this fenfe)
Difpenfationes & Indulta are Synonyma. Who likewife there fays,
that this Authority was raifed , and given to the Archbifliop of
Canterbury by the Statute of 25//. 8. c. 21. whereby Authority is
given to the faid Archbifhop and his Succeflburs to grant Difpen-
fetions. Faculties, &c. by himfelf or his fufficient and fubftantial
Commillary or Deputy for any fuch matters, commonly called the
Mafier of the Faculties , and of all fuch matters as whereof here-
tofore fuch Difpenfations, Faculties, &c. then had been accufto-
med to be had at the See oiRome.^ or by Authority thereof p. For p Trin. 44.
by the Stat, of 28 H 8. c. 16. it appears the Bifhop of Rome did Eliz.c. B.
grant Faculties and Difpenfations to the Kings Subjeds, as Plura- ^P'^' '52$-
lities. Unions, Trialities, Appropriations, Commendams, Exem- Ljb.%i c^^"
ptions. And the Judgment of Parliament exprefled in the Pream- p. sra.'sig.
ble of that Statute of Faculties is very remarkable to this purpofe •, Pafch. 9 jac.
where it is recited, that the Bifhop oi Rome had deceived and abu- ^•^' en /re-
fed the Subjects of the Crown of £«^/^w^, pretending and P^r^ua- jj."^]^^^^^
ding them. That he had full power to Difpenfe with all humane Laws^ ja^ it, Daiu
Vfes and Cufiomes of all Realms., in all Caufes which be called Spiritual : Rep.
which matter hath been ufurped and pra^ifed by him and his Prede-
ccffours for many years ^ to the great derogation of the Imperial Crown of
England. For whereas the faid Realm of England , recognizing ns
Superiour under God^ hut the King., hath been., and yet is, free front
fubjeEiion to any mans Laws but onely to fuch as have been devifed., made
and ordained within thii Realm for the weal of the fame., or to fuch others
as by fufferance of the King and his Progenitors the People of this Realm
have taken at their free liberty., and by their own confent., to be ufed a-
mon^ them^ and have bound themf elves by long ufe and cufiome to the ob-
t C C fervancc
I o 8 Of C ourts Ecclefiaftical,
fervance -cf the fame^ not as to the obfervance of the Laws of any Fo-
reign Prince^ Potentate or Pi date ;. but at to the acch(iomed and ancient
Laws of this Kealm^ originally ejlablijhcd at Laws of the fame by the faid
fnfferance^ confent and cuflome ^ and not otherwffe : it fiandeth with
natural equity and good rcafon that all fnch humane Laws made within
this Realm^ or induced into this Realm by the faid Snjfo ance^ Confent
and Cufiome flwuld be Difpenfed with .^ abrogated, amplified or dimi-
nifljed by the King and kis Parliament^ or by fuch per fens 04 the King and
Parliament fhould authoriz.e, &c. Fid. 2 1 H. 7. 4- a. where it is faid.
That certain Priefts were deprived of their Benefices by ACt of
Parliament in the time of R. 2. whereby it hath been concluded ,
that the King oi England^ and not the Pope, before the making of
the faid Statute o( Faculties^ might dejure Bifpenfe with the Eccle-
fiaftical Law in that and other cafes. For although many of our
Ecclefiaftical Laws were firft devifed in the Court of Rome^ yet they
being eftablifhed and confirmed in this Realm by acceptance and
ufage, are now become EngU/h Laws , and fliall no more be repu-
ted Roman Canons or Conftitutions : As Rebuff a^^ fpeaking De Ke-
gula Cancellaria Rortian^ de verifmili notitia^ Hac RtguU (fays he)
fibi^ue in Regno Francis eft recepta^ ^ efi Lex Kegni effe^la^ & obfer-
vatur tanquam Lex Regni , non tanquam Papa Regula ; e? Papa earn
revocare non potefi. The Kings or England from rime to time in
every Age before the time of //. 8. have ufed to grant Difpenfations
in Caufes Ecclefiaftical:, For whereas the Law of the Church is,
That every Spiritual perfon is vifitable by the Ordinary , King
William the Conquerour by his Charter Difpenfed with and exempted
the Abby of Battell from Vifitation and Jurifdidion of the Or-
dinary in thefe exprefs words , Sitque diBa Ecclefa libera & quieta
in perpetuum ab omni fubjeElione Epifcoporum^ & quarumlibet perfona-
rum dominatione ^ ficut Ecclefa Chrifii Cantuarienfis^ &c. whereby
he Vifpenfes with the Law of the Church in that Cafe. Vid. libr.
De vera diferentia Regi£ potefiatis & Ecclefiaflica. Edit. 1534. where
that whole Charter is recited at large. The like Charter was gran-
ted to the Abbey of Abingdon by King Kenelphttt, i H. 7. 23. & 25.
and Cawdrys Cafe, Co. par. 5. /o. 10. a. So likewife every Ap-
propriation doth comprize in it a Difpenfation to the Parfon Im-
parfonee, to have and retain the benefice in perpetuity, as appears
m Grendon sCzfe, Plow. Com. 503. In which AA the King by the
Common Law fhall be always Aftour, not oneiy as Supreme Patron,
but alfo as Supreme Ordinary, as is alfo obferved in Grendons
Cafe. For the King alone without the Pope may make Appro-
priations. 7 E. 3. Fitz.. Quare Impedit 19. And in the Cafe of ^<8^
turn prohibitum, and Malum in fe, iiH. 7. 12. a. it is held, That the
King may difpenfe with a Prieft to hold two Benefices j and inxh
and their JurifdiSlion, i op
a Baftard, that he may be a Prieft , notwithftanding the Ecclefia^
ftical Laws which are to the contrary. And as he may difpcnfe
with thofe Laws, fo he may pardon all Offences contrary to thefe
Laws , and his Pardon is a barr to all Suits pro falute anima , or
reformatione mornm^ and all Suits ex Officio in the Ecclefiaftical Court,
/i/<?//'s Cafe, Coke 5. par.fo. 5 1. In all Faculties or Dijpenfations^ for the
holding of two Benefices, granted at the Court o( Rome, there was
always a particular Derogation or Non obftante the right of Patro-
nage of Lay- Patrons, and of the right of the King by name exprefs,
where the Patronage belonged to him , otherwise the Faculty was
void^ For by the Canon Law the Lay- Patrons ought to be called
to give their Confents in all Cafes of that nature ^ And if fuch a
particular Non obftante were not added to the Faculty , then there
was inferted another Claufe , viz.- Dummodo Patronorum expreffus
accedat Confenftts -^ alfo by another Claufe Authority was always
given to the Official or Archdeacon, or other Ecclefiaftical Mini-
Iter , to put him , to whom the Faculty is granted , into poffeilion
of the Benefice cum acciderit. And becaufe by the Canon Law the
Patron's confent was ever requifite in a Commenda^ for that reafon
in every Faculty or Licenfe granted by the Pope to make a Permu-
tation, Union or Appropriation of Churches, thefe words were
ever added, 'viz.. Vocatis quorum intereft^ which chiefly intends the
Patron. And which Union and Approbation fhall not according
to Common Law be made without the Patron's afient. Fid 1 1 H.'j,
8. 6 H. 7. 13. ^6j4jf.p. 50. Ed. 3. 36. 40 Ed. 3. 26. Grendon sCaky
Plow, Com. 498. a. A Faculty or Difpenfation is of fuch force , that
i^ a Clerk be prefented to a Benefice with Cure , and be Admit-
ted, Inltituted and Indudted into the fame, fo that the Church is
full of him , if afterwards he be prefented to another benefice In-
compatible, or eleded to a Bifhoprick, and before he is inftituted
to the fecond Benefice , or be created Bifhop, he obtain a Faculty
or Difpenfation to retain the firft Benefice Perpetu^ Commenda, titulo.,
that is, for his life, that Faculty or Dtfpenfation fliall be of fuch ef-
fed, that the former Benefice Ihall not be void by acceptance of the
Second, or by promotion to the Bifhoprick ; but he fliall remain
full and perfed Incumbent of the firft Benefice during his life.
In the time of //. 6. when Henry Beaufort.^ Great Uncle to the King,
being Bifhop of Winchefter , was made a Cardinal , and after that
purchafed from the Pope a Bull Declaratory, that notwithftanding
he were made Cardinal , yet his Bifiioprick of Winchefter fhould
not be void, but that he might retain the fame as before •, yet it
was held. That the See of IVinchefier was void by afluming the
Cardinalfhip , which exempts the Bifhop from the Jurifdidlion of
his ^tropolitan , And for that the Cardinal fell into a Frsmunire%
* C c 2 for
no Of Courts Ecclefiafticaly
for which he purchafed his Pardon, which is found among the
Charters 4 H. 6. in Archivis Tnrr Lond. 6, cr 7 £'*^' Dyer 233. a,
Jo. Packjourfi being eleded to the Bifhoprick of Norwich^ before
he was created Bifhop, obtained a Faculty or Difpenfation from
the Archbifhop of Canterbury^ ( by force of the Statute of Facul-
ties^ to retain a Parfonage which he had before in Commtndam^
for Three years, viz., a Fefio Michaelis An, Dom. 1560. ufque ad
idem Fefium , in An. 1563. Before the firft Feaft of Sr. Mtchael^
Packhurfi is created Bifhop, and afterwards he refigned the Bene-
fice. And the Queftion was, whether that Benefice became void
by the refignation of Packhurfi^ or by his Promotion to the Bi-
fhoprick ? And it was Adjudged, That the Church became void by
his Refignation : Which proves , That by virtue of the faid Facul-
ty or Difpenfation he continued Parfon untill he had refign'd. rid.
N, Br. 36. h. If a Parfon who hath a Faculty or Difpenfation to hold
his Redory, be created a Bifhop, and after the Patron prefent a-
nother Incumbent , who is inftituted and induded , now the Bi-
Jhop fliali have a Spoliation againft that Incumbent •, which proves
that his real pofleffion in the Parfonage always continued by virtue
of the faid Faculty or Difpenfation. And in this Cafe of a Commen-
dam in Sir Jo. Davie Reports, this difference is put between a Fa-
culty to take a Benefice,, and a Faculty to retain a Benefice^ viz.. That
a Faculty granted to one who is not Incumbent to lal^e a void Be-
nefice, is void : And a Faculty to one who is Incumbent of a Bene-
fice to Retain the fame Benefice , is good. By virtue of thefe Fa-
culties , Difpenfations and Provifions from the Pope , Edmond the
Monk of Bury,^ who was a Minifter in the Court of King Edw. 3.
had many Benefices ^ as appears in the forefaid Cafe of the Bifhop
of St. D^jwV/, 11H.4. And //^wit/or^s^ faid in the fame Cafe,/o. 19 1.^,
That by virtue of fuch Faculty one and the fame perfon had been
Ahhit of Glaflenhury ,f and Bilhop alfo of another Church fifnul &
femel^ and had the PofTefCons and Dignity of both at the fame time.
■ Likewife Hen. Chichely (who was afterwards Archbifhop of Canter-
bury^ being a Prebend in the Cathedral Church of Sarum, was e-
leded Bifhop of St. Davids ., and before liis Confecration , the
Pope reciting by his Bull, that he was elefted Bifliop of St. Davids.,
granted him a Faculty and power to hold and enjoy all his other
Benefices, till the Pope fhould otherwife order, &c. Vid. Nov. De-
eif. Rot. ssi. And that thefe Faculties or Difpenfations to hold
Benefices in Commendam , were granted in the Court of Rome in
the time of King H. 5. appears in Lindw. de Prab. c. ^udifiis ver.
pifpenfatiom. And although in Cafe of Hen. Beauford aforefaid,
it was held. That the Difpenfation came too late, it being gran-
ted after the Bifhop was created Cardinal j yet afterwards imthe
timo.
and their JurifdiSlion, Hi
time of King//. 8. Cardinal PToZ/ry, having, before he was created
Cardinal , obtained a Bull from the Pope, to retain the Archbi-
Ihoprick of Tork^^s perpetual Adminillrator, and the Abby of St.
yilbans in perpetuam Commendam^ he held both during his life by vir-
tue of the fdid Faculty or Difpenfation. Vid. 27 H. 8. 15. b. By thefe
Prefidents and Authorities it is evident, That before the making of
the forefaid Statute of Faculties^ fuch Difpenfations were had and
obtained at the Court of Kome^ to hold in Commendam Ecclefiaftical
Benefices in England. But the truth is (as in the forefaid Cafe de
Commenda. Davis Rep.) fuch Faculties or Difpenfations granted by
the Pope touching Ecclefiaftical benefices in England were ever
contrary to the Law of the Realm , for it was a mere ufurpatioii
on the Crown of England before the Statutes made againft Provi-
fors. And thefe Statutes were made in declaration of the Common
Law in that point, iiEd.i.Fttz.. Qua. Imp. 169. 19 £^. 2. Fitz,.
jQuanonadmifit., 7. 1 5 Ed. 3. Fitz.. Qua Imp. 165. 2 i Ed. 3. 40. 1 1 H.
4. 230 <«. Itisalfo meet to be known, that long before King H. 8.
the Statute of i5 R. 2. and divers other Laws againft Provifors., and 25 Ed. i.
appeals to Romcy and the Popes Ufurpation upon the Rights of the i» R- 2.
Crown of England^ were made well-nigh as fevere as any fince. ^SEd.?. c.r.
The firft encroachment of the Bifliop o{ Rome upon the Liberties of 25 Ed'.^ *'
the Crown of England was made in the time of King William the
Corjquerour 'y for before that time the Pope's Writ did not run in Davis Rep.
England^ his Bulls of Excommunication and Provifwn came not thi- in the Caie of
thcr,. nor were any Citations or Appeals made from thence to the Prjtmmire,
Court o{ Rome, Eleutherius the Pope, within lefs than two hundred j^jj^fQ 29.
years after Chrift, writes to Z/«a«j the ^nrf//?; King, and calls him
God's Vicar within his Kingdom. Pelagius the Monk of Bangor .^
a bout. ./^«. 400. being cited to Rome .^ refufed to appear upon the
•Pope's Citation, affirming. That Britain was neither within his Di-
ocefe nor his Province. And when about the year 600, Auguftine
the Monk was fent hy Gregory the Great into England^ to Convert
the Saxons, the Brittijh Bifhops then in Wales regarded neither his
Commiflion nor his Dodrine . as not owing any duty to, nor ha-
ving any dependance on the Court of Rome., but ftill retained their
Ceremonies and Traditions, which they received from the Eaft-
Church upon the firft plantation of the Faith in that lOand, And
though Ina the Saxon King gave the Peter pence to the Pope, partly
as Alms, and partly in recompenceof a Houfe eredled in Rome for
Englifh Pilgrims, yet certain it is, that Alfred^ ^yEthel[iane^ £4l^^>
Edmond .^ Canutus^ a^nd Edward the Confeffour ., and other Kings of
the Saxon Race, gave all the Billiopricks in England per Anndumc-r
Baculam.
I (9.) in
112 Oj Courts EcclefiajlicaU ^m
^ Hill. 22. (9) I^ ^^ Cafe of Evmi againfl: Askspith^ it was agreed q, That
]ac. B.R.* the Nature of a Difpenfuion is, for to derogate and make void
Rot. 21(54. a Statute, Canon, and Conftitution , as to that which it prohi-
Ev^s and bites, as to the party, and it is an exception (as to him) out of
Asfwhh! the Statute or Conftitution. It is faid, that a Difpenfation is Pro-
^oHe^Rcp. vida Rebxatio mail prohibit i necejfitate vel utilitate penfata'^. And
^ Cokes ^ep. in the fame Cafe it was alfo Refolded by all the Judges, That the
par. 1 1. & King hath power to Difpenfe with Statutes and Canons in force with-
Joiies\h\A. |j^ ^i^jg Realm: By the very Common Law, of right it was in the
King^ for the C^«(?«j are the Ecclefiaftical Laws of the Land, and
do not bind, excepn they are received in the Realm, as appears
^ Dr. Stan- by the Statute of 25 H.S. c. 21.C And by the Statute of Merton^
difJj's Cafe, touching that one was born before Marriage, as by the Canon, yet
^ **"• "*P* at Common Law he is legitimate. And 10 //. 7. 12. it is faid. That
the King may Diipenfe with one to hold two Benefices •, and it feems
the Pope defaBo and by Ufurpation did ufe to Difpenfe, and by the
Stat, of 25 H. 8. ca. 21. the power is taken from the Pope and
' Vid.Cnw- conferr'd Cumulative on the King « : And by the Stat, of 25 H. 8.
iiry'sCik. the Archbifhop of Canterbury may Difpenfe in divers cafes •, but that
Co.Rep.par. ^Qth not exclude, the Power of the King.
Grenda^s ^ ^'^•) '^ ^^^ ^^^^ ^^^^ '^^ ^^^ ^^^^ ^^^ Curiam una: -voce , That
Cafe. F/o)v. where a Dean is made a Bilhop, with a Difpenfition from the
Com. King to hold the Deanry notwithftanding the Bifhoprick, fuch
Difpen(acion continues him Dean as before, by force and virtue of
his former Title, . to all intents and purpofes, fo as that he m3y,con»
firm, or make Leafes, or doe any other Ad as Dean, as if bQ had not
been made a Bilhop at all $ For before the Canon or,. Conftitutioi?
made at the Council of Lateran, for the voidance of the firft Be*-
nelice by taking another Benefice or Promotion, it was lawful! and
not forbidden fo to doe and the nature of the Difpenfation'is to
exempt him from the penalty , and fo it remains as if the Canon
had never been made, which appears by \\ H. ^l invthe Gafe of
the Bilhop of St. Davids, That fuch a perfon that Issd fuch a i)//^
penfation, being Defendant in a Quare Imped. Counterpleaded the Ti-
tle of the Plaintiff' v'^hich he could not doe by the Statute of 25
Ed. 3. unlefs he had been the Pofleffour thereof, and he in poflefli-
on by 4 //. 8 Dyer i. is one who is and continues Incumbent by In-
fiitution and InduBioit' Therefore in this cafe the firft Title and
induiflion continues^ And in the fame Cafe it was alfo agreed. That
fuch Difpenfanon is not any Provifon, for no new thing is done, but
the ancient Title continues v And in Fitz.. N.B. Brkf Spoliation,
fuch a perfon may maintain a Spoliation, and none can maintain
that, unlefs he continue his Inftitution and Induflion, Parkhurs
Cafe, 6 & -J EUz.. Such a Commendam continues to the perfon,(;be
^ic
and their JurifdiSiion. 1 1
it that the Benefice be void by Refignation : And 21 Jac. in a Qho-
re Impedit in C. B. by Woodley againft the T^ifliop oi Exeter and Man^
wayring , it was fo Refolved and Adjudged , and the words of that
Difpenfation are fufficirnt •, for it is to retain it during his life in
Commendam^ ant modo cjuocmque de jftre magis efficaci ^ 2nd all the
profits thereto belon.ting, ac caterafacere & perimplere qH4 ad De-
cartatum pertinem in tc-m amplu r,;odo & forma^ as if he had not been
promoted to be a B'Tliop, with a Non ob(i:ante to all Canons, &c.
And fo they all concluded , That the Difpenfation continues him
Dean, enabling him to confirm Leafts made by the Bifnop.
(11.) W. Libels for a Legacy in the Ecc.Jefiaftical Court againft
B. who moves f r a Prohibition, becaufe he had there pleaded
Plene Admimjiravit ^ and proved that by one Witnefs, and they
would not allow it. Richardfon^ before the Statute of £<^. 6. the
proper Suit for Tithes was there, and if they allow not oneWit-
nefs to prove payment, a Prohibiticn (hall be granted. And he put
Morris and Batons Cafe in the Biihop of PVimhefierh Cafe , where
itwasRuled-, if the Ecclefialtic;d Court will not allow that Plea
which is goi)d in our Law, a Prohibition ihall be granted, as in
the Cafe of Tithes.' And hefaid, the Cafe of a Legacy is all one^
Crook ^ when one comes to difcharge a thing by due matter of Law,
and proves it by one Witnefss if it be not allowed, no Prohibi-
tion fliall be granted there. Richard fe»^ Our Cafe is proof of ?/«-
le jidminiflravit pleaded, which goes in difcharge^ and proves' that
by one Witnefs , and not allowed, a Prohibition fhall bfe gi^anied-; „ „
Hmton faid. That properly for b legacy the Suit is in the Ecclefii
aftical Court: although they may fue in the Chancery for it, -yet
the proper Court is the Ecclefiaftical Court. And they faid', that
they ufed to allow one Witnefs, with other good circumftantial
proofs, if they be not in fome Criminal caufes, wh^te of nfeceflky
there muft be two WitnelTes .In one Hauk^ns Cafe, Farn?fet"'bf
an Appropriation, Libels for Tithes o^ Lambs forteen^e^rs:
And there payment was proved by one witnefs, and a Prohibition
was granted for Non-allowance. Telverton, There may- be a dif^
ference where the Suit is merely Ecclefiaftical for a Sum of Money,
as for a Legacy, there the payment of the Legacy is of the nature
of the thing, and the Ecclefiaftical Court ftiall have Jurifdidion
of the proof and matter. But if one gives a Legacy of twenty
Oxen, and the other pleads payment of as much money in fatifl
fadtion, there they cannot proceed, but at Common Law, for
that the Legacy is altered ^ And if a^proof of one Witnefs is not
accepted, a Prohibition fiiall be granted, for now it is a Legal
Trial, ss ^- 6. If the Principal b6' proper for their Court, the
Ac lefl^ory is of the fame nature. Alfo th^ Siiit is commenced for
* a Le.-
114
Of Courts Ecckfiafticaly
a Legacy, and the other pleads PUne Jdminifir, there they proceed
upon the Common Law : For they fometimes take that for Af-
fets which our Law does not take. It was adjudged in the Kings-
" Pafch. 4. Bench, That where a proof by one Witnefs of a Releafe of a Lega-
Car. C. B. j^ difallowed , a Prohibition (hall be granted. CrooJ^^ In this
g^Zamt. Cafe a proof of fetting out of Tithes by one Witnefs difallowed,
//etlf/i Rep. a Prohibition fliall be granted ".
(12.) One was obliged in the Ecclefiafbical Court not to accom-
pany with fuch a Woman, unlefs to Church or to Market overt.
And afterwards he was fummoned to the Ecclefiaftical Court , to
fay whether he had broken his obligation or not. And Jylife mo-
ved for a Prohibition, which was granted ^ for that, that the For-
, feiture is a Temporal thing •, and it does not become them in the
Cafe X- Ecclefiaftical Court, to draw a man in Examination for breaking
ie/sRep. of Obligations, or for Offences againft Statutes ''.
C. Adminiftrator durante minori atate of his Brother's Son *, the
Son died, and made the Wife of H. his Executrix, who called C.
to account in the Ecclefiaftical Court for the Goods. And he pleads
an agreement between him and H. and that he gave 80/. in fatisfac-
tion of all Accounts : But they did not accept the Plea -, for that
a Prohibition was prayed to be granted. Richardfon, If the party
received the money in fatisfadion, then there fhall not be a Prohi-
bition granted ^ but if there were onely an agreement without
payment of Money, then otherwife. Crool^, It is Spiritual matter,
and they have Jurifdidion, to determine of all things coricerning
y OeeJlaniri ^^^ But the Agreemejit prevents, that it cannot come into the
SvRef" Ecclefiaftical Court 7.
^^ *^* G. Libels againft B. before the High CommiiTioners for an Af-
fault made upon him, being a Spiritual perfon. And Attbowe pray-
-ed a Prohibition ;, for that although their Commiffion by exprefs
words gives them power in that, cafe , yet that Commiffion is
granted upon the Statnte of 1 Eliz^. And it is not within the Sta-
tute: aiKl although it be within the Commiffion, yet they have
not Jurifdidion. Tlie words of the 5f^f«ff are, Thatfuchjurif-
diS^ions and Privileges, &c. a^ by any Ecclefiaftical power have hereto--
■firebeen^ or lawfully may be exercifed for the Fifitation of Ecclefiafti-
cal State and Per fans ^ and for reformation of the fame^ and for all man-
ner of Err ours , Hereftes , Schifms^ Abufes^ Offences^ Contempts and
Enormitiesy &c. Thefe words extend onely to men who ftir up Dif-
fentions. In the Church, as Schifmaticks , and new-fangled Men,
who offend in that kind. Henden Serjeant , The Suit is there for
reformation of Manners > and before the New amendment of the
-Commiffions , Prohibitions were granted , if they meddled with
Adultery, or in Cafe of D^mations j but now by exprefs w«?rds
^' they
and tijeir J urijd legion. 115
they have power of thefe matters. And that matter is punifhable
by the Commiffioners for two Caufes : (i.) There is within the
AOi of Parliament by the words annexed, all Jurifdiaions Ecclt-
fiaftical^ &c. (2.) It gives power to the CommiiTioners to exercife
that j And that is merely Ecdefiaflical^ being onely fro reformatione
rnorum, &c. The King by his Prerogative having Ecclefiaflical Jii-
rifdidion, may grant Commiffions to determine fuch things, $.Rep.
Ecclefiafticd Cafes ^ fcl. 8. And Richardfon faid , The Statute de
yirticulis Cleri gave cognizance to the Ordinary for laying violent
bands on a Clerk. But you affirm, That all is given to the Com-
miffioners, and thereby they lliould take all power fioni the Or-
dinary : But by the Court, the Comminioners cannot meddle for a
ftroke in Church-Land, nor fro fubtraBiom Decinjarum. And yet
they have exprefs Authority by their CommifTion ^ for by that
courfe all the Ordinaries in England fhould be to no purpofe. And
fo upon much debate a Prohibition was granted '. ^ Gtks j-
On an Arrell on Chrifimoi-d^Y-, it was faid by Richardfon Chief j^^^^ ^"■
Juftice, That upon Arrefting a man on Chnfimas dzy. going to^^^^"^^'^'*
Church, in the Church-yard, he who made the Arreft, may be
cenfured in the Star-Chamber for fuch an Offence. Qitod nota. It
was alfo faid by Rkhardfon^ that if a man fubmit himfeif out of
the Diocefe to any Suit, he can never have a Prohibirion , becaufe
the Suit was not according to \.\ie Statute ^ i^H.S. commenced
within the proper Diocefe, as it was adjudged. Oj<od Nota. ^. « ibid, //et-
If the Eccleilaflical Court proceed in a matter that is mere Spi- h'^ Rep.
ritual, and pertinent to their Court, according to the Civil Laxv^
although their proceedings are againft the Rules of the Common
Law, yet a Prohibition does not lie. As if they refufe a lingle
Witnefs to prove a Will, for the cognizance of that belongs to vid. die Stat,
them. And Agreed alfo, That if a man makes a Will, but ap- 24E. i.
points no Ex^cutour, that that is no Will, but void : But if the Or-
dinary commits the Adminiftration with that annexed, the Lega-
tary to whom any Legacy is devifed by fuch Will, may fue the
Adminiftratour for their Legacies in the Ecclefiaflical Court. Note^
P.-4. Jac. C. R. Peep's Cafe, a Prohibition was denied where they in
the Ecclefiaflical Court refufed s fingle Witnefs in proof of pay-
ment of a Legacy ^. After Prohibition, if tht Temporal Judge b ^jr,^^^Von a-
fhall upon fight of the Libel conceive, that the Spiritual Court gainft/Y^rm.
ought to determine the caufe, he is to award zConfultation. And^Vs Rep.
by the Stat, of 50 £. 3.^-4. the Ecclefiaftical Judge may proceed "by
virtue of the Confutation once granted , notwithftanding any o-
ther Prohibition afterw^ards, if the matter in the Libel be not en-
larged iDr changed.
. B^ Adminiftratour of^. makes C. liis Executour and dies:, C. is
: Dd fued
n^ Of Courts Ecclefeaftical, ^
.— fued in the Ecclefiaftical Court to make an account of the goods of 1
A, the firft Inteftate: And C. now moves for a Prohibition, and
had it '. for an Executour fhall not be compellM to an Account :
But an Adminiftratour fhall be compell'd to Account before the Or-
IZTZ-' ^ Refolved by the Court, That a Prohibition (hall not be awarded
jolk; Noy's to the Admiral or Ecclefiaftical Courts after Sentence :, alio that a
^'P* Plea was there pleaded and refufed, which was Triabk at Com-
ii UnllmaR's mon LaW '^. c rt o
Cafe ^o/s Note, A Frohbmon was awarded upon the Statute of 23 H. 8.
Rep. becaufe the party was fued out of the Diocefe. And now ai Con*
fdtation was prayed, becaufe the inferiour Court had remitted that
Caufe to the Arches, and their Jurifdidion alfo •, yet a Confultati-
loS'^^' ^"a Suit^ was in the Ecclefiaftical Court, and Sentence pa^^d for
cademm\ one with Cofts, and nine months after the Cofts are AfFeft and
Cafe ver. Taxed 1 and then comes a Pardon of 2 1 Jac. which relates before
Grendav* ^^^ taxing of the Cofts. But afterwards the Sentence and that
Pardon was pleaded, and allowed in difcharge of the Cofts. Then
W. who had recovered, fues an Appeal, and P. brought a Prohibi-
tion and well, and no Confultation thall be awarded, becaufe by
the Court, that Pardon relating before the Taxation of Coft, had
^P4/mfrver.difchargedthem. As^ ^^p S'- ^^^^'s Cafe f. . , ^ , ,-
Warner. Nofs B. and two Others iue upon three feveral Libels in the hccleli-
^^P* aftical Court, and they join in 2 Prohibition. And by the Court
that is not good : But they ought to have had three feveral Prohi-
bitions- and therefore a Confultation was granted. Mich. 16. &
21 Eliz.. C. B. If J. libels againft B. for three things, by one
Libel, B. may have One or Three Prohibitions. Note., Dyer
^Vof^Scad- 171.2. ^ ^ A 1 . r> u •
dini'sCikm (13.) By the Statute of 25 //.8. cap. 19. Appeals to Rome being_
NofsKsf- prohibited , it is ordained. That for default of juftice in any ot
the Courts of the Archbifhops of this Realm, &-c. it fhall be law-
full to Appeal to the King in his high Court of Chancery, and
thereupon a Commiflion (hall be granted, &c. And by a Provifo
towards the end of that Statute^ an Appeal is granted to the King
in Chancery on Sentences in places exempt in fuch manner as was
ufed before to the See of Rome. So that this Court grounded on
the faid Commiffion is properly as well as vulgarly called , The
Conn of Velegates^ for that the Judges thereof are delegated to-
fit by virtue of the King's faid Commiffion under the Great Seal
upon an Appeal to him in Chancery., and that fpecially in Three
Gaufes: (i.) When a Sentence is given in an Ecclefiaftical Caufe
bv the Archbifliop or his Official. (2.) When any Sentence is g^.ven:
and their Jurifdi5lwn.
117
in any Ecclefiaftical Caufe in places exempt. (3.) When a Sen-
tence is given in the high Court of Admiralty in Suits or Adions
Civil or Maritime, according to the Civil Law. That this Court
oi Delegates may excommunicate^, was refolved by all the jud- ''H.io.ja.B.
ges in the Archbifliop oi Canter bur yh Cafe ». They may ^^^^T^^^^u
commit or grant Letters of Admioiftrations ^. This Court of ver.^prcroga-
Delegates is the higheft Court for Civil Affairs that concern the tive, lit.G.
Church, for the Jurifdidion whereof it was provided, 25 //. 8. " H. lojac.
That it fhall be lawfull for any vS'ubjed of England^ in cafe of de-
fed of juftice in the Courts of the Archbilhop of Canterbury^ to ap-
peal to the King's Majefty in his Court of Chancery^ and that upon
fuch Appeal, a Commiflion under the Great Seal ihall be direded
to certain perfons, particularly defigned for that bufinefs : fo that
from the higheft Court of the Archbifhop oi Canterbury ^ there
lies an Appeal to this Court o{ Delegates. Of this Subjedt of j^p- q^ j^^j^
pals the Lord Coke fays, that an Appeal is a Natural defence , par. 4. c.74,
which cannot be taken away by any Prince or power, and in every
Caufe generally when Sentence is given, and Appeal made to the
Superiour, the Judge that did give the Sentence is obliged to obey
the Appeal, and proceed no farther untill the Superiour hath ex-
amined and determined the caufe of Appeal. Neverthelefs where
the Claufe (ylpfellatione remota) is in the Commiflion, the Judge
that gave Sentence is not bound to obey the Appeal, but may exe-
cute his Sentence and proceed farther, untill the Appeal be revi-
ved by the Superiour, and an Inhibition be fent unto him: For that
Claufe j4ppellatiene remota hath Three notable effects j (i.) That
the jurifdidlion of the Judge a quo is not by the Appeal fufpended or
ftopped, for he may proceed the fame notwithftanding. (2.) That
for proceeding to Execution or farther procefs, he is not punifha-
ble. (3.) That thefe things that are done by the faid Judge after
fuch Appeal cannot be faid void , for they cannot be reverfed per
viam nullitatii. But if the Appeal be juft and lawfull, the Superiour
Judge ought to have right and equity to receive and admit the fame ^
and in that cafe he ought to reverfe and revoke all mean Pid(% done
after the faid Appeal in prejudice of the Appellant. At the Par- Dyer,
liament held at Clarendon^ An. \o H. 2. cap. 8. the Forms of Appeals Co. ubi fupr-
in Caufes Ecclefiaftical, are fet down within this Realm, and none
to be made out of this Realm, Ne c^uis appelUt ad dominnm Papam.^ &c.
fo that the firft Article of the Statute of 25 H. 8. concerning ^
the prohibiting of Appeals to Rome is declaratory of the ancient ^
Law of the Realm. And it is to be cbferved (fays the Lord Coke)
. that the lirft attempt of any Appeal to the See of Rome out of £«^-
land ,|Was by Jnfelme Archbiftiop of Canterbury , in the Reign of
Willh'fn Rufus., and yet it took no efFed. Touching the power
D d 2 and
I 8 Of Courts Ecclefiaftkal,
CorTbidT and jurifdidion, of the Comtoi Delegate,, ^td /<? C^/f Scevenfon
verfHS Wood. Trin. lO Jac, B. R. Rot. 1491- ^'^ Buiftr. Re^. par. 2.
wherein thefe Three points are fpeciaUy argued, (i.) Whether the
Judges Delejrates may grant Letters of Admimftration ? 0-) Whe-
ther in their perfons the King may be reprefented ? (3-) Whether
the Court of Delegates may pronounce Sentence of Excommunica-
tion or not? . ,. T- 1 r n.- 1 u
(14.) The m^h Commiffion-Court in Caufes Ecclefiaftical was by
Letters Patents," and that by force and virtue o{ l\it Statute of 1
Biz. cap. I. the Title whereof is, jin AH reftormg to the Croxvn the
Ancient jHTifSaion Ecclefiajiical , &c. the High Commifiioners
might if they were competent, that is, if they were Spiritual
«Dycr2 3E-perfons proceed to Sentence of Excommunication 1. What
''^- ^7r. fhe power of this Court was, and whether they might in Caufes
^°:^, P'^'Ecclefiaftical proceed to Fine and Imprifonment , is at large exa-
^" mined by the Lord Coke in the Fourth part of his Infinutes, where
he reports the Judgment and Refolutions of the whole Court of
Common Pleas thereon, Pafch. ^ Jac. Reg. upon frequent Conferen-
ces and mature deliberation, fet down in writing by the order and
command of King fames. Like4\ife whom, and in what cafes the
Ecclefiaftical Court may examine one upon Oath , or not ( there
being a penal Law in the cafe-, and whether the faying, ^nod
nemotenetur feipfim prodere , be applicable thereunto. Ftd. Inn.
^zJac.B.H. BmroHghs, Cox^ &c againit l\iQ High CommiJJIoners,
(is.) The* Statutes ofi^H.^. and 25 H.S. do Ordain, That,
upon certain Appeals the Sentence given fliall be definite, as to
any farther Appeal ; notwithftanding which, the King as Supreme
Governour, may after fuch definitive Sentence grant a Commiffion
«Co.Infl. of Review or ad Revidendnm, &c. "^ Sir Ed. Coke gives two Rea-
p^r.4.c.72. fons thereof, (1.) Becaufe it is not reftrained by the Statute.
(2 ) For that after a definitive Sentence, the Pope as Supreme Head
by the Canon Law ufed to grant a Commiffion ad Revidendum-,
and what authority the Pope here exercifed , claiming as Supreme
Head, doth of right belong to the Crown, and by thz Statutes oi
26H.S. cap. I. and i EUz.. cap. i. is annexed to the fame. Which
accordingly was refolved Trin. 39 £1*^,- S- R- Hollingwortlos Cafe^^
Lib. imr. jn which cafe Precedents to this purpofe were cited in Michelois
*^^^' Cafe, 29 Eliz.. in Goodmans Cafe, and in Huet's Cafe, 29 EUz,.
fei«lto Alfo md, Stat. ^ Eliz.. cap. $. In the Cafe between Hallnvell and
KoLib. Jervoice^ where a Parfon fued before the Ordinary for Tithes,
Kome 389. and thence he appeals to the Audience^ where the Sentence is af-
firmed i then the party appeals to the Delegates , and there^ both
Sentences are Repealed : It was agreed, that in fuch Cafe a Com-
miffion
and their Jurifdiciio??. i i^
m\i\\on ad Revi den iJ urn the Sentences may iflue fortli :, but then fuch
a Reviewing fhall be final without farther Appeal : But if the Com-
miflioners do not proceed to an Examination according to the Com-
mon Law, they fliall be reftrained by a Prohibition ". ".Word's Rep.
(16.) The Court of Peculiars is that which dealeth in certain Pa-
rilhes, lying in feveral Diocefes, which Pari flies are exempt from
the jurifdidion of the Blfhops of thofe Diocefes and are peculiarly
belonging to the Archbilhop of Canterbury : within whofe Province
there are fifty feven fuch Peculiars •, for there are certain Peculiar
jurifdidlions belonging to fome certain Pariflies, the Inhabitants
whereof are exempt fometimes from the Archdeacons, and fome-
times from the Biihops jurifdidlion.
(17.) If a Suit be in the Ecclefiaflical Court for a Modm Deci-
mandi^ if the Defendant plead payment, it fhall be tried there, and
lit) Prohibition may be granted, for that the Original Suit was
there well commenced °. So if payment be pleaded in a Suit de- °Mich. r4
pending in the Ecclefiallical Court for any thing whereof they 1^^- ^- ^- '":
have the original cognizance P. But if a man fue for Tithes in the ^^ardOu ^^•
Ecclefiallical Court againft J. S. and make Title to them by ^gvQtdperCu-
Leafe made to him by the Parfon ^ and J. S. there alfo makes Title riam. Hob.
to them by another Leafe made to him by the fame Parfon ; fo that Bep.Care^i4.
the Queftion there is, which of the faid Leafes fhall be preferred i^cr Pohibi-
In this cafe a Prohibition fliail be granted , for they fhall not try tion^ p. ^o^.
which of the faid I eafes fhall be preferred, although they have cog-
nizance of the Original-, for the Leafes are Temporal q. If a "^ ^^- ^2 Jac-
man having a Parfonage Impropriate make a Leafe for years of V^'^^^'itf'tmTr^
of the Tithes by Deed, and the Deed be denied in the Ecclefiaftical ^j^_RoUbid.
Court, and Ifliie taken thereon , a Prohibition fhall be granted "".f Pa fLh.sjaco .
If a Parfon compound with his Pariihioncr for his Tithes, and h^^^perCur.
his Deed grant them to him for a certain Sum for one year accor- Ro'«;bid..
ding to agreement, and after he fiie the Pariflnoner in the Ecclcli
sltical Court for Tithes in kind : no Prohibition to be granted on
that difcharge by Deed \ for they may well try that, having cogni-
zance of the Principal^ If a Parfon Leafe all the Tithes of his .', ?^- 4- ^*of-
Benefice to the Parifhioner, and afrer fue him in the Ecclefiallical 't g^""'!';^
Court for his Tithes in his hands ^ no Prohibition to be granted, ;,e,c/;a^(^.'^''
for the Leafe is a good difcharge there'. Likewife, if the Pa- " ibid.
rifhioner grant Land to the Parfon for and in lieu of his own '^ i'-'2 ]ic.
Tithes, and after the Parfon fue him in the Ecclefiallical Court foi^ h7b?oti'de°
the Tithes-, no Prohibition to be granted, for that matter will beuied. Trk.
a good difcharge there V. if a Parfon fue for Tithes in the Ec- lajac. B.R*
clefiaftical Court, and the Defendant there plead an Arbitrement i^t^rR^noA/i
in Barf they fhall try that there ^ and no Prohibition to be granted ?^^'^-^"^^J^'^'
upcu that, &c, for by intendment it is a good difcharge there ".confurratioar.
• Like- grantedx-
I20
Of Courts Ecclefiajikal^
Likewife, if a Parf n fue for Tithes in the Ecdeliaftical Court, and
the Defendant there plead a Leafe of them by Deed by the Parfon
to him rendring Rent-, to which tlie Plaintifffays, the Rent was
referved upon condition of Non payment to be void, and averrs,
that it was not paid at a certain day, and the other pleads payment
-y TrLr5]ac. at the day : This lliaii be tried there, and no Prohibition granted y,
B. R. inter |f a Parfon leafe by Deed the Tithes of the Parifh, and after fues
Griffin and f^^ jj^^ Tithes in the Ecclefiaftical Court, and there the Leafe is
Cur Kolib. Pleaded, where the Queflion between them is, whether it be the
nu.i2. ' Tithes of the whole Parilh, or onely of fome particular things?
yet no Prohibirion lies, for they have Cognizance of the Original ^
but if they judge contrary to the Common Law, a Prohibition lies
» Mich. 15 after Sentence 2. if a man fue for a Legacy in the Ecclefiaftical
Car. B.R. in- Court, and the Defendant plead a Releafe in Bar, and the Plain-
ter Dr. Fo- tiff denies it •, that fliall be tried there, for that it arifes from the
Sr"^S Original caufe whereof they have the Jurifdidion K If an Ad-
Join, miniftratour fue for a Legacy due to thedeceafed in the Ecclefiafti-
• Mic. 1 5 Ja. cal Court, and the Defendant plead the Releafe of the deceafed in
B.R. inter ggj-^ ^nd the Plaintiff avoid it, for that the deceafed was an Idi-
m%^ ter °^' That 7^/09' (hall be tried there, and no Prohibition granted,
Cur!pTohl ^or that they have jurifdidion of the original matter ^. If a
bitiondeni- Parfon fue in the Ecclefiaftical Court, and the Defendant there
ed.Hob.Rep. plead, that the Plaintiff was prefented upon a Symoniacal Contraft
2$^.Anony ggginft the Stat, of 3 1 EUz,. That Ihall be tried there, for that they
Tpia.cafe ^^ve Jurifdidion of the Original thing '^. But the Ecclefiaftical
reicher & Court can take no cognizance of a Cuftome whereby the Inhe-
w^^eWe. Pro- ritance is perpetually charged, although the thing Cuftomable be
^}^i"°"'^^* cognizable by them-, and therefore if the Church-wardens of the
galid the o- P^ri^^^ 0*' ^' ^'^^^ i" ^he Ecclefiaftical Court againft J. 5. Farmer of
pinion of the Farm of jD. for a Contribution to the Reparation of the Church,
Warbunon. and slledge, that p^it of the Farm lies in the Parifh of S. and part
^ Mich. 8 ]i. thereof in the Pariih of H^. and alledge a ' uftome, that the Far-
CafL' ^^^^ ^^^'■^ ^^ ^^'^ ^^^^ ^^i^ have ufed time out of mind to contribute to
the Reparation of the Church of 5. throughout the whole Farm :
if the Defendant faith, that part of the Land of the faid Farm lieth
within the Parifh oiW. and that it had ufed time out of mind, &c,
for that part to contribute to the Church of U\ and not to 5.
and fo deny the faid Prefcription: This fliall not be tried in the
^ Tr. i5]ac. Ecclefiaftical Court, but at the Common Law, and for that a Pro-
B.R. bet ween hibition lies ;, for they fliall not try a Cuftome in the Ecciefiafticai
theChurch- Court, by which the Inheritance is to be perpetually charged*^.
luevem^ If y4. the Parfon of V. fue for Tythes in the Ecclefiaftical 'Court
and Green re- againft 5. who pleads a Leafe for years made to him by the Parfon j
folved. £0 which A. the Parfon replies, That he was Non-refidem^ aiidcab-
fent
and their Jurifdi^ion.
121
fent 80 days and more in fuch a year, &c. from his Benefice, by
which the Leafe became void : No Prohibition lies upon that Plea
for that it is grounded on the Statute oi 13 Eliz. and although it
was objeded. That the Judges Ecclefiaftical fliall not have the ex-
pofition of a Statute •, yet for that they have juriCdiftion of the Ori-
ginal caufe, they Ihall have power to try that which incidently doth
arife from thence ^ and the Prohibition was denied ^ ' Hill. 14.
(18.) A Prohibition was prayed upon the Statute of 23 H. 8 Car. B.R. in-
fer fuing for a Legacy of Ten pounds in the Prerogative Court ,T ^'"'^a'^
whereas the party did dwell in another Diocefe-, but becaufe theSj?r c^r°
Will was proved mthat Court, and there Sentence was given ioimiubifupr,
the Legacy, and an Appeal upon the Sentence to the Delegates, P-^oS-nu 22.
where it was affirmed, and endeavour was to ftay the Suit by the ^^''^^' 5^^'"'
Statute, the party having fo long allowed of the jurifdidlion of the and Ex?cl?
Court-, Mjudged^ the party came too late now to have a Prohi-torsofPom-
bltion. dreH'iCzk.
(19.) In Norwood's Cafe it was held. That where a man is fued ^"^^^ P- 3-
in the Ecclefiaftical Court for flanderous words, a general Pardon Trin.41 Eliz.
doth not aid the party, for ftaying the Suit there, which is for or ^' ^: ^''^-
ad injiantiam partis^ but contrary where the party is fued there ex r^'*^'* ^^^^'"
officio Judicif, v,ro. par. I.
(20.) In order to a Prohibition it was furmifed. That the De-Hn fk
fendant was a Clerk, and afiaulted his Servant, and he coming to b.r.'a:X^"
keep the peace and to aid his Servant, laid his hands peaceably up- and 'ivaikers
on the Defendant •, for which he fued him in the Ecclefiaftical Court ^afe. Cro. .
where he pleaded this matter, and they would not allow of his?,^^; ''
plca^ It was faid by the Juftices, That this Cafe was out of the elk ilTiV
Statute of Arttcuh Clert & circumfpeEle agatis ^ for here the party
had (Qudtre by what Law ^ for this is not in the Cafe of Se De-
fendendo) good caufe to beat the Clerk, and a Prohibition was
granted.
(21.) By x.hQ Juftices^ if IlTue be joined, whether a Church be p^.. . p,;^
void by Ceffton, Deprivation, or Refignation, it /hall be tried by the SJ,"sRep'
Countrey, becaufe it is a thing mixc^ for the avoidance is Tem-
poral, and the Deprivation is Spiritual : But Habilitie, Baftardy^
ne unque accoHple en Loyal Matrimony fliall by tried by Certificate
of the Bifhop^ but Baflardy pleaded in a ftranger to the writ ihall
be tried by the Countrey.
(22.) A Sentence was given definitive in the Ecclefiaftical Court '
in a Suit there for Tithes, pro triplici valore , a Prohibition was (//V>>e's Cafe. .
prayed •, a fpecial Prohibition was awarded, That they fhould not ^"^^^^ ^^W-
proceed to the Execution of the Sentence , as to the treble value ,
becaufe tTjat Court is not to giyethe treble value but lis double va-
lue orfly..
(23.) In.
122 Of Courts Ecclefiafiical, ^
(25-) In a Cafe between a Parfon and Church- wardens againft
-Reynofcts Ca. one Reynolds^ it Was fuggefted. That all thofe who had the Houfe
i^/ffVsRep. wherein the faid Reynolds did dwell, had ufed to find meat and
drink for the Parfon and them, going in Proceflion in Rogation-
week, at his houfe-, and becaufe he did not find them meat and
drink, they fued him in the Ecclefiaftical Court, and a Prohibition
was awarded , becaufe the Cuftome was a Cufbome againft the
Law.
(24.) In Bah'wton's Cafe it was Refolved, That if one be fued
Mare.Qzk in the Ecclcfoftlcal Court ex officio^ or by Libel, and he demand
t2'j,s. the Copy of the Libel which is denied^ That a Prohibition iieth
in fuch cafe, f'^id. Stat. 1 H. 4.
(25.) In a Prohibition upon a Libel in the Ecclcfiaftical Court,
where the Suit was for Tithe- Apples, in difcharge of which he
•Pafch. !2 Ja. there pleaded an Award, which was. That he was to pay fo much
h.?,. Parker for the Tithe ^ pleads there the Arbitrement, the which plea they
againft/cew/). j-efufed, fuppofing this to be void : upon this a Prohibition prayed.
■ "V ^- P^""- 2- ^^^^^ YVe will no't grant a Trohibition in this cafe : So in a Suit there
for a Legacy, if payment of the fime be there pleaded, which is
r.ot fufficient, the payment is triable there by 1 R. 3./. 4. When
the Original begins in the Ecclefiaftical Court, although that after-
wards a matter happens in Iflue, which is triable at the Common
Law, yet this fliall be tried there by the Ecclcfiaftical Law : As if
one do fue there for a Horfe to him devifed, the Defendant there
pleads, that the Divifor did give this Horfe unto him in his life
time ^ This is triable by our Law, yet this Ihall be tried there by
their Law. In the fame manner it is, where the Original doth be-
gin here, the fame fiiall be tried here by our Law, as in a Quare Jm-
fedit, able or notable-, if it were otherwife, theyfliould there try
nothing. This is belonging to them-, But if they will there draw
the matter ad aliud cxamcn^ as upon proof of a Deed, they Judge
otherwife than we do : As in cafe of a Leafe for years to be made,
they hold the fame to be Traditione^ or void -, And fo a Grant of
Goods to be delivered^ or not good. If they will judge in Common
Law matters, otherwife than we do, there in fuch a cafe ^Prohibition
lies: That which we call Orders, they amongftthcm do callA<fts:
The Court all clear of Opinion, That this Plea of the Award there
pleaded, and by them refufed, no ground for a Prohibition : and fo
Mich. I Car; by the Rule of the Court a Prohibition was denied. And in Vikts
B. R. Euljtr. Cafe againft Brown a Prohibition was denied, and a Confultation gran-
W' 5* ted, becaufe the Ecclcfiaftical Court (as was then admitted) having
cognizance of the Principal, hath caufe alfo there to determine of
theAcceflbry. . '
(#0.) If
and their JurifdiSlwn. 125
(26.) If a Parfon fue upon the Stat, of 2 Ed. 6. in the Ecclefi- , fjj,j ^^^j.
altical Court for the double value for not fetting forth the Tithes, b. r.' later
and the Defendant furmize. That he did fet them forth, and that Tolle & Sr.
they would not there allow or admit the proof thereof by one ^^ ^«»'^^-
Witnefs^ ho Prohibition lies for that, becaufe they have ,cogni- ^jj'J* ^f^^^^
zance of the matter *". In this cafe the ProhiHtion was denied fer bitioo ,
Curiam. p.299. nu.io.
(27.) If the Bounds of a Village in a Parifh come in queftion in
the Ecclefiaftical Court , in a fuit between the Parfon Impropriate
and the Vicar of the fame Parifh, as if the Vicar claim all the Tithes
within the Village of jD. within the Parifh, and the Parfon all the '
Tithes in the refidue of the Parifh ^ and the queftion between them
is , Whether certain Lands , whereof the Vicar claims the Tithe,
be within the Village of £>. or not, yet inafmuch as it is between g ^..,
Spiritual Perfons, vtz.. between the Parfon and the Vicar, although c^r,^ b/^]
the Parfon be a Lay- man, and the Parfonage appropriate a Lay-fee, between ive{
yet it fhall be tried in the Ecclefiaftical Court, and no Prohibition ^nA Wright,
be granted \ And in this cafe the Prohibition was denied?. f^^ ^'"''
(iS.) Where Suit hath been in the Ecclefiaftical Court for fome
thing Spiritual mixt with other matter triable at Common Law j
In fuch cafe a Prohibition hath been granted as to the matter triable
by the common Law, and not as to the reft, if they may be feve-
red ^. As if a Suit be in the Ecclefiaftical Court to avoid the Infti- J Mich. 14
tution of one who is inftituted to A, his Chapel of eafe as he pre- |jj^*^* ^^^
tends ^ if the other fuggeft, That J. is a Parochial Church of it berUinRefol.
felf : a Prohibition lies as to a Trial , whether it be a Parochial con. m. 8 Ja.*
Church of it felf or not, for that they fhall not try the Bounds o{perCur. Je-
the Parifh^ but not as to a Trial concerning the Inftitution, ^^"^"^^t^^^
that belongs to the Ecclefiaftical Court to examine whether it be n.Vrd. *
well done, or not"'. But Houghton faid, they cannot well try the • c^kFijl
■Inftitution without trying the Bounds of the Parifh ^. IfaTefta-and cham-
ment be made of Lands and Goods, and there be a Suit in the J^j''*^''-
Ecclefiaftical Court for the Goods, and the queftion be, whether y^^*'
the Teftatour did revoke his Will in his life time, or not, a Pro- i Mjch. 15
hibition lies as to the Land, and not as to the Goods ^ So if a Jac. B. inter
man fues for the Probat of a Teftament in the Ecclefiaftical Court, AchU^Achit
and in the Teftament there be Lands devifed , and other perfo- ^l^^^ ^
nal Goods, a Prohibition lies as to the Land, and not as to t\itBancro[t''s'
reft ">. Upon an Allegation in fuch cafe, That the Devifor re- cafe.
voked his Will before his death , a Prohibition was granted as to ■" Mich. r4.
the Land". BTiVev?'
(29.)4fa man be fued out of his Diocefe, and there Anfwers j,j^*j '^ ^^^
without taking Exception thereunto , and afterwards Sentence be verf. Winch-
given, againft him, he fiiall not after have a Prohibition^ for that he comb.
Ee did
124 Of Courts Ecckfiaflical-,
did not take Exception to the Jurifdidion before, but affirmed the
opafch.15. Jurifdidtion •, In this cafe Prohibition hath been denied o. If it
jac. B. R. in- appears in the Libel, that the Court hath not Jurifdidion of the
m Pudfey caufe, a Prohibition lies after Sentence-, but other wife it is , if it
Z mcZ ^0^^ "0^ ^*^ appear in the Libel, but by averment P. Generally,
p M1C.8. j"a. if a Suit be in the Ecclefiaftical Court, and Sentence there given for
B.. the Plaintiff, and thereupon the Defendant Appeals, and after prays
a Prohibition ^ no Prohibition is to be granted , although if he had
come before Sentence, it ought to have been granted, for that it is
inconvenient, after fo much expence and no Exception taken to
1 Hill. pCar. the Jurifdidion , then to grant a Prohibition 9. Where a man by
BR. Fri^e- intendment fhall have remedy by Appeal, no Prohibition lies -^ And
mlPiCik, therefore if a man devifc a Legacy to B. to be paid him within one
year after his death, -providedy that if he die within the year, that
then the Legacy fhall be void, and Ihall be divided between D. and
E. and after 5. die within the year, and his Extcutor fue for the
Legacy, and Sentence given for him, for that they there held the
Condition to be void : yet no Prohibition lies, for that by intend-
ment he hath his remedy by Appeal ^ and in this cafe a Prohibition
r Mich. 2 1 was denied ■". If a man hath a Prohibition on a Libel for Tithes
jacB.R. of Faggots, on a Suggeftion, that the Faggots were made of great
mak'iQzk Trees above twenty years growth, and in the Suggeftion the quan-
Refolved, ^j^y ^^ Paggots be miftaken •, yet if it appears that he made his
Suggeftion according to the Copy of the Libel given him by his
Prodor, no Confutation fhall be brought, for by the Statute of
f i^ch. 4 Ja. 2 H.$. he ought to have a true Copy of the Libel C
B. R. inter (30.) The Cafe was, where ^. fued B. for Tithes within the
amnemn. parji)^ of C.— — B. faid, they were within the Parilli of D. and the
Adiudeed; Par^o^ of D. came pro intereffe fuo^ and they proceed there to Sen-
tence. Queftion, if in fuch a Parifli, or fuch a Pariih. fhall be
tried by the Law of the Land or of the Church ? Wray faid. It was
Triable by the Common Law: Fenner faid, the Pope hath not
diftingiihl'cd of Parifhes, but Ordained, that Tithes fliall be paid
J Sirar>fl}am within the Parifh ^ _
mACHiiing", (31.) R' Rarfon of 5- fued C. in the Spiritual Court for Tithes of
yansCafe. certain Lands in the Parifii of 5. D. Plaintiff in the Prohibition^
€ro.par. i. ^.^^^ ^^^ intereffe f no ^ and faid there was a Cuftome within the Pa-
rifh of S. that the Parfon of H. fhall have Tithes 1 3 Cheefes of
the Lands in S. and in recompence thereof the Parfon of 5. had
13 Cheefe? for the Tithes of^. It was faid, the Right of Tithes
were in queftion, and not the Bounds of the Pariih , and therefore
^DuUinghm no Prohibition -^ and of. that opinion was the Courtj and a Confdta'^
and /fz/r/^'/s ^^-^^3 awarded "o
Qife, Cro, ib. ' ^ ^
and their Jurifdi^ion. 125
(32.) If an Adminiftrator be granted to ^^ where it ought
not to be granted to him , and after the Adminiftration be Re-
pealed and granted to B. for he that is the next of Kin i In this xHill. ijja.
cafe^. may fue^. in the Ecclefialtical Court to Account for the B. R. PTuo'/- '
profits of the Goods snd Chattels of the Deceafed during his time, **""'^* ^p**
and no Prohibition to be granted, for he cannot have an Adion oinf^'l- j
Trefpafs againft u4. nor hath he any remedy for them at the Com- ged! "* '
mon Law x.
(33.) A Parfon may fue in the Ecclefiaftical Court for a Motiui
Decimandi^ and no Prohibition ihall be granted, for it is in the na-
ture of Tithes y. But a Frefcription cannot be tried in the Eccle- y Co. iv.^
liafticai Court, for that ought to be tried by a Jury, which cannot Dr. Gran/, 15.
be there =. Yet if a Parfon prefcribe to have Tithes of things not » Temp. E.
Tithable, as of Rents of Houfes, he may fue for that in the Ec- i-Roll. Abr.
clefiaftical Court , and no Prohibition lies^ yet no Tithes de jure^'^^-^^'^^^
ought to be paid of them*. So he may fue in the Ecclefiaftical tco.ubifup.
Court for the Tithes of great Trees, which he claims by Prefcrip-
tion, and no Prohibition lies, yet de jure they are not Tithable.
Quizre 9. H. 6. 46.
(34.) If there be a Cuftome, that after the Grafs is cut and fet
into Grafs-Cocks, the Tenth Cock be afllgned to the Parfon, and
that by the Cuilome it ftiall be lawfill for him to make the fame
into hay upon the Land , and the owner of the Land difturb him
from making the fame, he may fue for that in the Ecclefiaftical
Court ; and no Prohibition fliall be granted, for that is. incident to
the Cuftome to come there to make the fame into Hay^. Alfo '' Mich, 14.
the proper place to fue for a Legacy, is the Ecclefiaftical Court, J^F;^-^^-^"
for that it is not any Debt, but onely due by the Will. \i A, do^^^/JJ^^
owe toB five Marks, and he devife by his Will, that whereas he ao/. Abr.
doth owe five Marks to 5. his Executor fhall make it 10/. The Suit pag. 284.
for that ic/. may be in the Ecclefiaftical Couit, for that is not any
Addition to the five Marks, but a new Summ given in fatisfadion
of the five Marks, and fo no part of the 10/. any Debt, but one- !^'p^' ^^
ly a Legacy ""' Alio if a man devife a Rent out of his Stock and Sr/eJ^nd
Houfe which he hath for years, theDevifee may fue for that Rent t^^i^. Prohi»
in the Ecclefiaftical Court, for that it iflues out of a Chattel, and no bition de-
remedy for it at the Common Law ^. If a man poflefled of a ^}^\
Leafe for years, Devife that his Executor fiiall out of the Profits g^^^^^J^*^*
thereof pay 20 /. to each of his Daughters at their full Age , the jamesC3(Q,
Executor may be fued in the Ecclefiaftical Court to put in Sureties per curiam^
to pay the Legacies, and no Prohibition fiiali be granted, for that I'rohibirion
•is to ijue out of a Chattel ^ - f^^'^ ^
(j4.) If there be a Queftion between two perfons touching fe- b. ProUs-] '
veril Grants , which of them fnall be Regifter of the Bifliop'scafeferan
£ e 2 Court,
126 Of Courts Ecclefiajiical^
J Court ^ thatfhall not be tried in the Biihop's Court, but at Com-
B^faicf bv^' "^°^ ^^^' ^°^ although the SubjeElum circa quod be fpiritual , yet
Coke ro be the Office it felf is temporal ^ Alfo if a man fet forth his Tithes
SJ^mer and by feverance of Nine parts from the Tenth , and after carry
Mingey\Qzk. gvvay the Tenth part ; the Parfon cannot fue for that in the Ec-
P fch'^'^'o E! ^^"fisftical Court , for that by the feverance of the nine parts it
b!k. fiuer ^^i*^ become a Chattel, for which he might have his Adion of
Leigh & Wood Trefpafs s.
(36.) \i\s Reported^ That if a Suit be in the Ecclefiaftical Court
againft a Vv^oman for exercifmg the Trade of a Midwife without
h -^^ 0(^3^ Licence of the Ordinary contrary to the Canons, a Prohibition
B.K. between lies, for that is not any Spiritual Fundion whereof they have cog-
Benskin and nizance. And in this cafe Prohibition was granted to the Court of
Cn;^j. Refol. Audience ^
i Mic. 14 Ja. (37.) The Ecclefiaftical Court may not try the Bounds of a Pa-
B. R. fi]})er nfh^ and therefore if Suit be there on that matter, a Prohibition
andc/Mw^er-jigji^ So if the Queftion there be, whether fuch a Church be a
k'^j' TgB_ Parochial Church, or but a Chapel of eafe, a Prohibition alfo
the Church- lies''. In the Cafe between Elie Vicar of Atderburne in the Coun-
vvardens Cafe ty o( Wilts and Cooke ^ Prohibition was granted, and thereupon
of St. Samp- {£jj£ joined, whether feveral Parifhes, and tried by Verdid to be
^/"'''""oneParifh.
(38.) Where aManfued for a Legacy in the Ecclefiaftical Court
I pafc. 1 5 Ja. againft an Executor, and he there pleaded, that he had not Allets
B R. between fave onely to pay the Debts, and the faid Court difallow'd of that
Singleton and plea, a Prohibition was granted K
Wade. ^^^^ jf 3 pyjgj^ ^ygg i^ j-jjg Ecclefiaftical Court to have an Ac-
" Hilf. 3 Jac. count for the profits of a Benefice, a Prohibition lies, for that it
B. adjudged, belongs to the Common Law "^. But if the Suit be for the profits
f Ibid. taken during the time of Scqueftration, no Prohibition lies ".
(40.) In Wons and Clyflons Cafe , where the Plaintiff fued for
Tithes in the Ecclefiaftical Court by virtue of a Leafe made by the
Vicar of T. for three years : the Defendant prayed to be difchjrged
of Tithes by a former Leafe : The Plaintiff in the Ecclefiaftical
Courtj prayed a Prohibition to ftay his own Suit there ^ It was gran-
ted by the Court, becaufe they are not to m.eddle with the Trial of
Leafes , or real Contradts there , although they have Jurifdi(^ions
• Cro.par. 2. of the original Caufe, 'viz,. the Tithes ».
(41.) In Collier'^s Cafe, upon the endowment of a Vicarage upon
an appropriation, it was ordained by the Biftiop , That the Vicar
ftiould pay yearly 20 /. to the Precentor in the Cathedral Church of
p Tr. 41 Eli. ^- ^0 ^^^ ^^^ °^ ^^^ y^icars Chorals of the faid Church : It w^s held
B.K.'coiiie/s by the Court, that this is a Penjion^ for which Suit fliali be la the
Caie. c>-o.p. I. Ecclefiaftical Court Po
(4.2.) In
and their Jurifdi^ion. 1 2 7
(4-> ) In the Cafe between Draiton and Cotterill againlt Smith for ^^^^^ , , y^.
zTrohtbition, it was faid h^ Coke Chief Juftice, That if the ParfonB.R.Buiar.
fues in the Ecdcfiaftical Court for Tithes, and the other pleads a par. 2.
Modm to the Vicar, this Modw now can never come in queltion by
this Suit between the Parfon and him, for Titiies due unto the Par-
fon, but this is to be queftioned and determined there in the Eccle-
fiaftic?.! Court, to whom the Tithes do belong, whether to the Par^
fpn or to the Ficar ? And this hath been divers times adjudged
in this Court, and in the Court of C B. in B^-is Cafe, for P^«-
keridz- Church : and it hath always been clearly held. That it the
Riphic of Tubes come into queltion between the Parjon and the
rtcar, to which of them the fame do belong. This is a Suit proper-
ly belonging to the Ecclefiaftical Court to hear and determine the
fame and in fuch cafe they are not there to be oufted of their Ju-
rifdidior. And this being now a Queftion between the Parfm and
the l^tcar, to which of them Tithes did belong, for which the modus
is alkdged to be paid ;, therefore no Prohibition to be granted in
this cafe, though there be a Modtii fuggefted to be paid unto the Vi-
car for ail Tithes here due to the Ficar aiid Parfon^ the Parion lii-
inff for the Tithes there, as due unto himfeU, and not unto the Vi-
car. And fo the Quf^ftion is as touching the Right of Tithes be-
tween the Parfon and the Vicar ; which is a Suit proper for the £r-
clefiajiical Court. And this is to be obferved for a fure Rule,^ in fuch
a cafe never to have a Prohibition granted ; The reafon of this is, be-
caufe that the Modus fuggefted to be paid, cannot come m queftion
upon this Suggeftion of this payment unto the Vicar, but onely the
KiAht of Tithes, to whom they belong, whether to the Parfon or
to the Vicar 1 and divers Judgments have been accordingly given
in thelikeCafe-, And fo by the Rule of the whole Court a Prokbp-
tion was denied. ... .u t- i «• ,
(.3 ) Whether, and how far, and m what manner the Eccle- Mich. 1 4 Ja.
fiaftical Court may exercife its Jurifdidion in cognizance of a B- R.J-
Modus Decimandi is at large argued and debated at the Bench ^,,/^3^g3j^j^
in Hardwah Cafe againft Gofeltng, where m a Prohibition to Itay Gofeling.
Proceedings in the Ecclefiaftical Court, upon a Suit there for Tithes, BhjI par. 3,
where G. Libelled againft H. for a Modus Decimandt, being not
paid and there H- alleadged another Modns Veetmandi , which
5lleeation the Ecclefiaftical Court refufing to^ admit, a- Prohibi-
tion was thereupon prayed in B. R. In this cafe X>.^rr?%f Juftice
faid. That the Modus Decimandi, is as well due to the Parfon, as
Tithe is at the Common Law ; and if the Parfon do Libel in the
Ecdeliaftical Court for a Modus Dccimandi (as he may doe) and ano-
thee Mod^s is there alledged, and this refufed, the Ecclefiaftical
Goyrt may try and determine this matter touching ih^Modfts, and
i\<^^
Of Courts Ecclefiaftkaly
no caufe to grant a Prohibition for this refufal : But if the Ecclefi-
allical Court doth deny to admit the Allegation for the Msdtti up-
on this ground onely, becaufe the practice of the Ecclefiaftical Law
and our l,aw do differ in the manner of proof ., as for default of
two Witnefles, one being all nved at Common Law, but not at the
Ecclefiaftical Law, In this Cafe a Trohibition is grantable ^ but
otherwife the Ecclefiaftical Jurifdidlion may as well tvy tht Modm
Decimandl^ as the Right of Tithes. But if a Parfon doth Libel
there for Tithes in kind, ^x\^2.Modm is aliedged and there plea-
ded , but refufed to be admitted or allowed : in that Cafe a Pro-
hibition is granted upon fuch Refufal. Haughton Juftice , In this
Cafe a Prohibition ought to be granted, otherwife in fuch Cafes,
upon every fmall difference aliedged in the Modus^ that Court may
try and determine the validity of every Modm Decimandi , which
the Ecclefiaftical Court cannot doe by the Law : for that Court is
not permitted by cur Law to try a A<fodH4 Decimandi ^ and there-
fore that Court proceeding to try this Modm^ which is determi-
nable by Common I aw, and not in the Ecclefiaftical Court, a Pro-
hibition ough*" to be granted. But Doderidge contra^ No Prohibition
is in this cafe to be granted, for the Ecclefiaftical Court may well
trv and determine this Modm by that Law; the Libel being there
originally for the Modm : But if touching the Proof of this Modus
as aforefaid, the difference of proceedings between the two Laws,
(one Witnefs being fufficient at the Common Law, not fo at the
Ecclefiaftical) be the ground of the Refufal of the Allegation, then
a Vrohihition is to be awarded, fo is i R. 3. and 10 H. 7. but if the
Ecclefiaftical Court onely proceed to try the Modm for which
the Libel was there , this by proof may well be there examined.
Crake luftice , at this time delivered no opinion at all in this Cafe.
Afterwards, this Cafe being moved again, Doderidge^ If a Parfon
do Libel in the Ecclefiaftical Court for a Modm^ whereas in truth
there was no Modm, but onely a compofition of late time between
the Parfon and the Parifhioners, to pay fo much yearly for Tithes,
and not otherwife: In this Cafe, becaufe that the common Law
and the Ecclefiaftical do differ in the point of Prefcrlption ^ (Ten
years continuance being a good Prefcription by that Law ^ but not
fo by ours) in this cafe a Prohibition is grantable. Honghton , A
Modus Decimandi is properly to be tried and determined by the
Common Law, and not in the Ecclefiaftical Court, for that thefe
two Laws difter in many things, as in point of proof of a /l/o^«^,
and in the point of Prefcription. Croke^ A Special Modus being
Libelled for in the Ecclefiaftical Court, is there to be tried, c Dode-
ridge , If the Ecclefiaftical Court doth refufe to allow of the proof,
allowable at the Common Law, a Prohibition Kes to ftay procee-
dings
and their Jurifdi^iion, i ap
dings for Tithes there : And whereas there is a Modus^ if they re-
fufe to pay this , the Parfon may fue for this Modus in the Eccle-
fiaftical Court, and this is to be tried there •, But if in fuch cafe
where there is a Modus^ if the Parfon will Libeil to have his Tithe
in kind, and the other fliews there this Modus ^ which they will
not allow of, a Prohibition lies, and this fhall be tried by the Com-
mon Law. The Court declares That they would fee the Suggeltion,
and therefore by the Rule of the Court they were to make their
Suggeltion, and to fliew the fame to the Court, as they would ftand
unto it, and in the mean time the Suit in the Ecclefiaftical Court to
be ftayed.
(44J To conclude this Chapter, it may not be impertinent toPafch. 9 jac.
enquire, when and how the Canon Law was introduced into this ^•5- ^"^''f-
Realm of England ^ la the Cafe of a Commendam that was Ad- CiCcdcCm-
judged in Ireland, it was obferved , That after the Bifhop of Rome mend£, le
had alTumed or took upon him to be the Spiritual Prince or Mo- Roy verf. Cy-
narch of all the World, he attempted alfo 10 give Laws to all Na-^''^'*" ^"^Z*^-
tions, as one real Mark or Signal of his Monarchy^ but they {^^'^^^ P^^*. ^
well knowing , Quod ubi non eft condendi authoritoi^ ibi non eft pa- Rep.'
rendi necejfitoi, did not impofe their Laws at firft peremptorily on
all Nations without diftindion, but offered them timide & precario.
And therefore he caufcd certain Rules in the firft place to be col-
lefted for the Government of the Gkrgy onely , which he called
Decreta, and not Le^es vel Statuta ; Thefe Decrees were publilhed
in^n. 1155. which was during the Reign of King Stephen. And
therefore what the Lord Coke obferves in the Preface to the Eighth
part of his Reports, Quod Rogerus Bacon , frater ille perquam eru-
ditus , in Libro de Impediment is Sapientia ^ dicit ^ Rex cjmdem Ste°
pha-nus, alUtii Le^ibus Italia in y^noliam ^ Publico Editio prohibuit
ne in aUqm detinerentur^ may probably be conjectured, to be meanC
and intended of thofe Decrees which were then newly compiled
and publifhed : Yet thefe Decrees being received and obferved by
the Clergy of the Wellern Churches oneiy^ (for the Eaftern Church
never received any of ihefe Rules or Canons, Kelvo, Rep, 7//. 80.
fo. 184.) the Bifhop of Rome attempted alfo to draw the Laity by
degrees into obedience to thefe Ordinances: and to that purpofe^.
in the firft place he propounds certain Rules or Ordinances for Ah'
ftinencs^ or days of Fafting, to be obferved as well by the Laity as the
Clergy, which were upon the firft Inftitution thereof called by the
mild and gentle name of Rcgationes^ as MarfUus Pat. lib. Defenfor-
Facis^ far. 2. cap. 23. hath obferved ^ and thence, it feems, the Week?
of Ahftinence, a little before the Feaft of PfWfccj'r, was called the-
Ro^auon-week,^ the time of, Abftinence -being appointed at the be^
gimiing by that. Ordinance, which was called Rogatio^ and; not Pr^*
• septumi
1^0 Of Courts Ecck/taftical,
<eftiim vel Statntunt. Now when the Laity out of their Devotion
had received and obeyed thefe Ordinances of Ahftinence^ then the
Biihop of Rome proceeds farther ( De una prafetrnptotie ad aliam
tranfivit Romanw Pontifex^ as Marfil. Tat. there fays) and made
many Refcripts and Orders per Nomen Decretalium^ which were
publiflied in the year 1230. which was in the Fourteenth year of
King//. 3- or thereabout, l^id. Matth. Tar. Hifi. Mag- 403. and thefe
were made to bind all the Laity, and Sovereign Princes as well as
their Subjeds, in fuch things as concerned their Civil and Temporal
Eftates ^ As that no Lay-man fhould have the Donation of an Ec-
clefiaftical Benefice : That no Lay- man Ihould marry within certain
Degrees , out of the Degrees limited by the Levitical Law :
That all Infants born before Marriage, fliould be adjudged after
Marriage Legitimate , and capable of Temporal Inheritance :
That all Clerks fhoijld be exempt from the Secular power j and o-
thers of the like nature. But thefe Decretals being publifhed, they
were not entirely and abfolutely received and obeyed in any part of
Chriftendom, but onely in the Pope's Temporal Territory, which
by the Canonifts is called Tatria obedientia. But on the other hand,
many of thofe Canons were utterly reje<n:ed and difobeyed in
France and England^ and other Chriftian Realms, which are called
Tatria CmfuetHdinaria, \ As the Canon which prohibited the Dona-
tion of Benefices per mannm Laicam was ever difobeyed in England^
France .^ the Kingdom or Naples.^ and divers other Countries and
Common-wealths, and the Canon, to make Infants Legitimate
that were born before Marriage, was fpecially rijeded in England
when in the Parliament held at Merton^ omnes Comites & Barones h-
fia voce refpondertint , Nolumm Leges Anglia mntari., <jh<z hucuf^Hc nfi-
tatafunt^ &c. And the Canon which exempts clerks from the Se-
cular power was never fully obferved in any part of Chriftendom.
Kelw.-j H.S. iSi.h. which is one infallible Argument, That thefe
Ordinances had not their force by any Authority that the Court of
Rome had to impofe Laws on all Nations without their confent, but
by the approbation of the people which received and ufed them.
For by the fame reafon whereby they might rejedl one Canon, they
might rejed all the other, ^id. Bodm. lib. i . ds Rep. cap. 8. where he
faith. That the Kings ofFrance^ on the eredion of all Univerfities
there, have declared in their Charters, that they would receive the
Profeflion of the Civil, and Canons, to ufe them at their difcretion,
and not to be obliged by thefe Laws. But as to thofe Canons which
iiave been received , accepted and ufed in any Chriftian Realm or
Common-wealth, they by fuch acceptation and ufage have obj:ained
the force of Laws in fuch particular Realm or State, and are be-
come part of the Ecclefiaftical Laws of that Nation, and fo thofe
wHich
and their JurifdiSlion,
131
which have been embraced, allowed and ufed in England^ are made
by fuch allowance and ufage, part of the Ecclefiaftical Laws of Ena-
land-^ By which the interpretation, difpenfation or execution of
thefe Canons, being become Laws oiEnaUnd^ doth appertain folc
to the King of England^ and his Magiftrates within his Dominions
and he and his Magiftrates have the fole jurifdidion in fuch cafes^
and the Bifhop of Rome hath nothing to doe in the interpretation '
difpenfation, or execution of thofe Laws in England^ although
they were firft devifed in the Court of Rome,, No more than the
chief Magiftrate of Athens or LacedAmon might claim jurifdidion
in the ancient City of Rome ^ for that the Laws of the XH. Tables
were thither carried and imported from thofe Cities of Greece ^
and no more than the Mafter oi New-college in Oxford^ ihall have
Command or Jurifdiction in Kings- College of Cambridge^ for that
the private Statutes whereby Kings-College is governed, were for
the moft part, borrowed and taken out of the Foundation- Book of
New-College in Oxford: And by the fame Reafon the Emperour
may claim jurifdidion in maritime caufes within the Dominions of
the King of England^ for that we have now for a long time re-
ceived and admitted the Imperial Law for the determination of
fuch Caufes. Ftd. Cawdries Cafe, Co, par. 5. and Kelw. Rep. 184. a.
Now when the Bi/liop of Rome perceived that many of his Canons
were received and ufed by divers Nations of Chriftendom, he un-
der colour thereof claimed to have Ecclefiaftical jurifdidion in
every Realm and State where thefe Canons ^ere received, and fenc
his Legates with feveral Commiffions into divers Kingdoms, to
hear and determine Caufes according to thefe Canons : which'Ca-
nons although neither the Pope nor his Minifters, at the firft ven-
tmg and uttering thereof, dared to call Laws, Ne committerem crimen
Lefdi Majefiatis in Principes ( as Mar/il. Pat. lib. Vefenfor. Pacts pa.
2. ca. 23 . obferves) who alfo fays. That thefe Canons being made
by the Pope, Neque funt humant Leges, neque divine.^ fed documenta
quadam & Narrationes \ yet when he perceived that thefe Canons
were received, allowed and ufed in part by feveral nations, he com-
piled them into Volumes and called them Jus CanonicHm^ and Or-
dained that they ihould be read and expounded in publick Schools
and Univerfities, as the Imperial Law was read and expounded, and
commanded^ that rhey fhould be obferved and obeyed by all Chri-
ftians on pein of Excommunication, and ofcen endeavoured to put
them in execution by coercive power, and aflumed to himfelf the
power of interpreting, abrogating and difpenfmg with thofe Laws
in all the Realms of Chriilendom at his pieafure, fo that the Ca-
nomftsT^cnht to him this prerogative. Papain ommbm jure fofuivo
& infquibufdam ad juf divimtm pertinent llmf^ difpenfare potefi^ ^ma
* F I kici<.
1^2 Of Courts EcclefiaJUcal,
dicitHT omnia Jnra habere in Scrinio p^oris fui^ quantum ad inter-
pretaticnem & Mffenfationem, Lib. 6. de Confl. cap. licet. About the
time of Jn. 25 Ed. i. Simon 2i Monk of Walden began to reade the
Canon Law in the Univerfity oi Cambridge ^ vid. Stow and IValfm^-
ham in that year. Alfo the Manufc. lib. 6. Decretal, in New-College
Library at Oxford hath this Infcripion in the Front, Anno Dommi
1298. which was in the year 26 Ed. i. 19. Novembr. in Ecclefia Fra-
trum Pradicdtor. Oxon. fuit faSia ptblicatio lib. 6. Decretal, whereby
it appears when it was that the Canon Law was introduced into
England. But the jurifdidlion which the Pope by colour thereof
claimed in England was a mere Ufurpation, to which the Kings of
Endand from time to time made oppoficion , even to the time of
King H. 8. And therefore the Ecclefiafticai Law which ordained,
That when a Man is created a Bifhop all his inferiour Benefices fhall
be void, is often faid in the Bilhop of St. David's Cafe, in 1 1 //. 4.
to be the ancient Law of England. And 29 Ed^ 3. 44- ^- in fhe Cafe
of the Prebend oiOxgate^ it is faid. That though the Conftitution
which oufts Pluralities began in the Court of Rome, yet a Church
was adjudged void in the Kings Bench for that caufe or reafon ^
whereby it appears. That after the faid Conftitution was received
and allowed in England., it became the Law of England: Yet all
the Ecclefiaftical Laws of England were not derived from the
Court of Kome •, for long before the Canon Law was authorized and
publiftied in England ^which was before the Norman Conqueft)
the ancient Kings of £«^/«w^, viz. Edgar, t/Ethelflan., Alfred^ Ed-
ward the ConfejfoHr, and others, have with the advice of their Cler-
oy within the Realm, made divers Ordinances for the government
of the Church oi England; .and after the Conqueft, divers Provincial
Synods have been held, and many Conftitutions have been made in
both Realms of England and Ireland-^ all which are part of our
Ecclefiaftical Laws at this day. Fid. Le Charter de WUltam le Con-
queror. Dat. Ann. Vom. 1066. irrot. 2 R. 2. among the Charters in
Archiv. Tnrris Lond. fro Decam & Capitido Lincoln. Wiilielmus,
Dei gratia., Rex Anglornm, &c. Sciatts, &c. ^uod Epifcopales Leges
qua non bene , nee fecundnm San^oram Canonnm pracepta , ufque ad
■mea tempera in Regno Anglic fuernnt., Communi Concilia Epifcaporum
meorum , & c&terorum Epifcoporum., & omnium Principum Regni mei
smendandasJHdicavi^ &c. See alfo Girald. Gambrenf. Itb. 2. cap. 34. in
the time of King H. 2. a Synod of the Clergy of Ireland was held
at the Gz/?/(r, wherein it was ordained, Qnod omnia divina., juxta
quod Anglicana obfervat Ecclefta, in otnmbm partibui Hyberni^E amodo
traElentur. Dignum enim & juflijfimHm ej^, ut ficut Domtnum & Re-
gem ex AngWdi divinitm fortit a eft Hybemia, fic etiam exinde jivendi
formam. auipiant meliorem. But the diftin^ion of EcclejlaftiAl QZ
S-:)iri'
and their Jurifdi^ion, 1 53
Sptritual Caufcs from Civil and Temporal Caufts , in point of jurif^
didtion, was not known or heard of in the Chriftian World for the
fpace of 300 years after Chrift ^ For the caufes of Tefiaments^ of
Matrimony^ oi Baflardy2indi Adultery^ and the reft, which are called
Eccle/iafiical or Spiritual Caules, were merely Civile and determined
by the Rules of the Civil Law^ and fubjedl onely to the jurifditlion
of the Civil Magiftrate ^ But after the Emperours had received the
Chriftian Faith, out of a zeal they had to honour the learned and
godly Biftiops of that time, they fmgled out certain fpecial caufes,
wherein they granted jurifdiition unto the Bifliops, viz.. in Caufes
q{ Tithes^ becaufe they were paid to men of the Church, in Caufes
of A/atrimony^ becaufe Marriages were for the moft part folemni-
zed in the Church-, in Caufes Tefiamemary^ becaufe Teftaments
were many times made in extremis ^ when Church- men were pre-
fent, giving Spiritual comfort to the Teftator, and therefore were
thought fitteft perfons to take the Probats of fuch Teftaments.
Howbeit thefe bifljjpps did not then proceed in thefe Caufes accor-
ding to the Canons and Decrees of the Church (for the Canon Lawjy cafe cf
was not then known ) but according to the Rules of the Imperial Praemunire
Law, as the Civil Magiftrate did proceed in other Caufes, fo that j." ^^^is Rep.
the Primitive jurifdidion in all thefe Caufes was in the Supreme Ci- ^^'
vil Magiftrate, and though it be now derived from him, yet it ftill
remaineth in him as in the Fountain.
/
Ff^ CHAP.
154
CHAP. xir.
Of churches, Chapels and Chnrch-yards.
1. Ecclefia ^ what that word imports \ the feveral kintis thereof.
2. Tojfeffions of the Church proteBedby the Statute- Laws for Alie--
nation •, the care of the Emperour Juftinian in that point.
3. To whom the Soil and Freehold of the Church and Church-yard
belong , to whom the ufe of the Body of the Church , to whom the
difpofal of the Pews and Seats^ and charges of repairs.
4. The Common Law touching the Reparation of Churches, and the
difpofal of the Seats therein.
5 . The fame Law touching Ijles, PiEhures, Coats of Arms., and Buri-
als in Churches ^ alfo of Ajfaults in Churches and Church-yards,
6. The penalty of quarrelling., chiding., brawling^ fi^iking or draW'
ing a weapon in the Church or Church-yard.
7. Where Prefcription to a. Seat in a Church is attedged^ the Common
Law claims the cogniz^ance thereof.
8. The Immunities anciently of the Church-SanEiuary j as alfo of Ah'
juration now abrogated and taken away by Statute^
9. The defacing of Tombf., Sepulchres or Monuments in Churches.^
punifljable at the Common Law j alfo of Right to Pews and Seats
in the Church.
10. The Cbgniz.ance of Church-reparations belongs to the Eccle/iafii^
cal Court.
11.. A Prohibition upon a furmizje of a cuflome or ufage for Contribu-
tion to repair a Church.
12. church- wardens are a Corporation for the Benefit , not for the
Prejudice of the Church.
13. Inheritance cannot be charged with a Tax for Repairs of the
Churchy nor may a perpetual charge he impofed upon Land for the
fame.
14. When the ufe of the Church-Books for Chrillnings firfi began.
15. Chapel ^ the feveral kinds thereof:, The Canonifts conceits
touching the derivation of that word.
16. Where two Parochial Churches are united.^ the charge of repara'
tions jhal! be feveral as before,
1 7. The Eml'crour Juftinian'i Law Provifonal , touching the buil-
ding of new Chapels.
!&.. Whether a Seat in the Church., and priority in that Seat \'mmed
by Prefcription., be triable at the Common Law by ABion upo,: the
Cafe. ^^
X9> A
135
19. A Cafe in Law touching a. Tax made in a Pariflj for making of
new Bells for the Church.
20. Whether a Tax for Repairs of the Church may he made by the
Church wardens alone^ without the major p^rt of the Inhabitants.
21. Church-Seats in the generality are in the Ordinaries power to dif-
pofe.
22. Vivers other Cafes at the Common Law^ pertinent to the fubje^
of the Premijfes.
23. In what refpeEis an Inhabitant in one Parifh^ having Land in a-
nother^ may or may not be taxed^ as to the Church of that Pariflj
where the Land lies.
24. The difference in Law between a Par fan s grant to a man his own
Tithes., and his grant to him the Tithes of another man^ as to the
'Validity of the Grant.
25. Vifpofal of Seats in the Body of a Church belongs of common right
to the Ordinary of the Diocefe.
26. In what refpeU a man inhabiting in one Pariflj^ fliall be charged
towards the Reparation of the Church of another^ where he hath
Land^ and in what refpeEis not fo.
27. Rates for Reparation of Churches arecogniz.able onely in the Fc-
clefiafiical Court ^ and no Prohibition , notwtthfianding any ine-
cfuality in the Rate.
28. Repairers of a Chapel of Eafe., not difckarged thereby of Repara-
tions of the Mother-Church .
29. Land in a Parijh not to be rated for the Ornaments of aChurchi
That Rate to be according to the perfonal Efiate.
30. In what cafe a Prohibition lies to a Suit for Reparations of a
Church J not fo^ as to a Rate made by the major part of the Parifhi'
oners for the Ornaments of the Church.
31. The Bounds of a Parijh not triable in the Ecclejiafiical CaHrt\
though the difference be between two Spiritual per fans.
32. Prohibition, where a Vicar fued the Parfon impropriate for Da^
magesy for cutting down the Trees growing in the Church-yard.
3 3 . Prescription of repairing a Chapel of Eafe^ no difcharge from re-
pairing the Mother- Church.
34. The charge of repairing a Church refers to Land\ of providing
Ornaments of the Churchy to the perfonal Ejiate •, and how to b£ ap*
portioned between Landlord and Tenant.
5-5. Adion of Trefpafs lies for the Heir of fuch^ whofe Coat- Armor,
or Monument in Church or Church-yard^ m by any defaced or demo--
litled^ be it by the Parfon., the Ordinary^ or by any other.
^6^A Cafe in Law touching a dijfurbance cf ft-ting in certain Seats ^
'in a Chancel of a Church.
37. Cer^'
1 5^ Of Churches^ Chape Is^
37. Certain Cafe in Law touching linking in a Church and Church'
yard^ and drawing a weapon in the fame.
38. The difference taken between having a Seat in the JJle of a Churchy
and a Seat in the Bj/dy of the Church.
39. yi Prohihtticn denied on a Prefcriftion of not Repairing a Mo-
thtr- Churchy in regard Juch Prefcription if merely Spiritual.
40. The Ecclefiaflical Court not to intermeddle with the PrecinSls of
Parijh-Churches,
41. Towards Church Reparation ^ all Lands within the Parifh^ 04
rrell of Foreigners as Parijl^ioners^ are ratably liable.
42. Controverfes touching Seats in Churches.^ determinable in the
Spiritual., not Temporal Courts ", In what Cafes the Common Law
hath tookjcogniz^ance thereof,
( I, ) /^ H U R C H {_Ecclefia'] lay-Mi'iui.^ from the old word A^»,
V_-/ h.e. 77 Jc^iA^, or rather ^^a to C/tcacArti', h.e. evocare ^
being an Affembly of men gathered out of all Mankind •, or evo-
cattis per EvanaeUum-^ or from the Hebrew {_Cahal~\ h. e. Con(rre-
gatio ^ the true vifible Church being a Congregation of Faithful!
men, in which the pure Word of God is preached, and the Sacra-
ments duly miniitred according to Chrifi's Inftitution, in all things
neceflary to the fame. This in a Theological fenfe;, but the word
£church2 in a Legal fenfe, as here chiefly intended, differs from
the former as far as Dead [Vails do from Living Saints :, there being
no more here deligned to be touch'd at, than what refers rather to
the place than to the perfons. f hurches are of three forts. Cathe-
dral, Collegiate, Parochial. The Bilhop is the Incumbent of the
firft: Priors and Abbats were, and Heads of Colleges are. Incum-
bents of the fecond : and Parfons of the third ; commonly called a
ReBory.^ being either a Parfonage or a Vicarage. And that either
(l.) Ratione dotationis. (2.) Fundationis. (3.) Fundi.
(2.) The Emperour Jufiinian decreed , That the Lands of the
Church (hould not be fold, alienated or exchanged unlefsit were to
the Prince's houfe or to or with another like religious place, and
that in equal Goodnefs and quantity, or that it were for the redemp-
' Awth. Co!!, tion of Captives ». But by the Stamte of prima Jac. the Poflef-
2, & 9. and fions of the Church are protected from alienation or diminution
Coll. 5. JQ 2.\\ refpei^is, and fo as that they may remain and continue accor-
ding to the true intent of their Foundation, to their SuccelTours for
'' 1 Jac. c. 5. ever, to the iifes and purpofes therein limited ^.
(3 ) By the Common Law, the Church and Church-yard are
it feems the Soyl and Freehold of the Parfon •, but the uf^\"if the
Body of the Church, and the Repairs and Maintenance there4)f is
common to all the Parifhioners •, albeit the difpofal of the Tews
in
and Chhrch-yards. i^j
in the Body of the Church, or an Ide or Chapel joyning to the Bo- /« EatonV
dy, and the difpofing of the rh^.rges of ib-z Repairs thereof , ht'^'*f^.^&'^!"fi
long to the Ordinary j infomuca chat no man can challenge a fsat in f^f^t'^'^
the Body of the Church without fhewing fome fpecial reafon for ton, n^^'
the fame. AH which appears in the Cafc of Boothhy againft B^nly^ Seats in the
where Bootloby being Executour of Gilbert brou>i,ht a Prohibition ?^"^'''''% «s"'^
againft 5^/7)', and his furmize was, That where^^s Sir ^m^^y-^ij ^/;fr-''''Jj'^^.'*'^''''/
fton was fcized of the Manour of Woodford- Hxll, and that he and ;,''|2,r"f '-^
thofe whofe Eftate he hath in the iame, had nf d time out of mind, Heck>v kfj), .
to have a peculiar Pew in the Body of the Chu- cli, and that the De-
fendant by Suit in the Ecclefiaftical Court, fought to difpoflefs them ^
of the fame. And by the opinion of the whole Court, this was no V
fufficient ground of a Prohibition ^ for though the Church and
Church- yard be in the Law the Soyl and Freehold of the Parfon, yet »
the ufe of the Body of the Church, and the repair and maintenance
thereof is common to all the Parifliioners. And for avoiding of
confufion, diftribution and dispofing of Seats and charges of Re-
pair belong to the Ordinary, and therefore no man can challenge a
peculiar Seat without a fpecial reafon. But if it had been Piefcri-
bed, That Sir Bernard Whetflon^ &c. had ufed time out of mind at
their own cofts to mtintain that Pew, and had therefore had thefole
ufe thereof, the Prefcription might have ftood and been warrant
for a Prohibition, though the Pew were in the Body of the Church.
And fo it is in the like cafe of an Ifle or Chapel adjoyning to the
Body of the Church upon the fame diiference, whether it hath been c cafc Booth-
maintained by the whole Parifh, or by fome particular perfons, like 3y verf. Baiiy,
unto the Reafons of a Chapel of Eafe «^. , Hob. Rep.
(4) Touching the Reparation of 'Churches, it bath been ruled, ^^["^''J'^'^""
That he who hath Land in a Parilh, though he doth not inhabit £'^^/^!,7^"
there, fhall yet be chargeable to the Reparation of the Pari 111- Theodorim
Church, but not to the buying of the Ornaments of that Church, ^'^«^«'^w«-
for that (hall be levied of the Goods of the Pariihioners , and nct^''"-^"'^^3*
of their Lands, by Sir Hen. T elver ton^ and fa id to be fo formerly fff^J^c'^r^^-
adjudged d. And it hath been holden. That if two Churches Paro- vefordcnf.
chial be united, the Reparation fhall be feveral as- before e. And "^ Mich. 19
although the Lord of a Manour may prefcribe to a certain Seat or I^c.Ror.iyp!.,
Pew in the Church, by having time out of mind maintained and ^-^f^^^^^"^^^
repair'd the fame at the proper colts of himfelf and Anceftours, yet J,ttlonv! '
35 to the Common Seats of the Church it is otherwife in refped oiiVind^k^p.
the Common Parifliioners : As in the Cafe of Harris againft IVife- '^ The Parifh •:
jxan^ againft whom Harris had procured a Prohibition , Wiftmi^-^ 0'^°^^
having Libelled In the Ecclefiaftical Court againft him for a Seat '^"^ jUe^.B^rmi^h^
the cimrch, which did belong to his Houfe^ and ic was faid by chapel. Hoi?, >.
Hdnrt and Winch oneiy prefent, Tha£ . a,,man, or a Lord of a Ma-. Rep.
• nour
138 Of Churches^ Chapels^
nor, who had an Ifle or a Seat in the Church, &c. and he fued for
that in the Spiritual Court, he Ihall have a Prohibition ; but not
every common Parifhioner for every common Seat : yet in that
» Cafe //(ij-rw cafe a Suftrfedeas was granted to ftay the Prohibition ^. It hath
v^rf.Wifeman. j^|fQ 5^^^^ j^gj^j^ tj^gt ^j^^ Grant of a Seat in a Church to one and his
v/mch. Rep. p^^j^g .g ^^^ g^^j ^ ^Qj. ^j^g Q^^^ ^^ Brabin and Tradum was. That
the Church-wardens of D. had ufcd time out of mind to difpofe
and order ail the Seats of the Church, whereupon they difpofed of
a Seat to one, and the Ordinary granted the fame Seat to another
and his Heirs, and excommunicated all others, who afterwards
fhould fit in the Seat, and a Prohibition was prayed and granted, for
this Grant of a Seat to one and his Heirs is not good, for the Seat
doth not belong to the Perfon but to the Houfe, for otherwife when
• the perfon goes out of Town to dwell in another place, yet heihali
retain the Seat, which is no reafon, and alfo it is no reafon to ex-
communicate all others that fhould fit there, for fuch great punifli-
ments fliould not be impofed upon fuch fmall Offenders, an Excom-
«Pafch. 16 niunication being Traditio diabolka s.
^^%?' '^H ^^'^ ^" the Cafe of Day againft Beddtngton and others, upon a
rrflur^i Crofs-bill between the parties, for pulling down of painted Glafs,
Cafe, Poph. Pidures and Arms, in a Window in an Ifle of » Chapel in the Pa-
S^p. rifh o{ Wellington in Somerfet^ thefe points in the Cafe were refol-
ved : ( I.) If^ sn Inhabitant there and his Anceftours time out of
mind, &c. have ufed to repair an Ifle in a Church, and to fit there
with his Family, &c. and to bury there, that makes that Ifle pro-
per and peculiar for his Family ^ otherwife if he had not ufed to
repair it at his own cofl:s, but with the charge of the Parifh^ then
the Ordinary may appoint who fliall fit there from time to time, not-
withftanding a ufe to fit there, onely, to the contrary. (2.) If any
fuperfl;itious Pidlures are in a Window of a Chureh, or Itle, &c.
it is not lawfuil for any to break them , &c. without Licenfc of
the Ordinary •, and if any does to the contrary, he ftiall bind him to
his good Behaviour. And fo it was in Pnc^ft's Cafe. (3.) That
the Ordinary or Church-warden cannot licenfe a Parifliioner to
bury within the Church : But it ought to be licenfcd by the Parfon
for the Frankteneraent is in him onely. (4.) If Coats of Arras are
put in a Window, or upon a Monument in the Church or Church-
yard, they may not be broken by the Ordinary, Paifonor Church-
wardens or any other ^ for the Heir fliall have his Adion upon the
Cafe for that, 9 Ed 4. 14. for they belong to him, 30 Ed. 3.9.^. c.
(5.) If one be alTaulted in the Church, or within a Church-yard
ik may not beat the other, or draw a Weapon (although it be in his
own defence) there ^ for it is a fandlified place, and he may^ pu-
fiiilied for that by 2 Ed. 6. And fo if in any of the King's Courts,
i or
I
and Church-yards. 1 3P
or within view of the Courts of Juftice j becaufe a Force in that
cafe is not juftifiable, though in his own defence ^. '" Cafe Day
(6.) For the penalty of ftriking or drawing a weapon in the ^^'"'•^^'^'^"5'
Church or Church yard. Vid. Stat. 5 Ed. 6. cap 4. whereby it iSf|"g 5" ^^y,
enadled. That if any perfon (hall by words onely quarrel, chide orpcp.
brawl in any Church or Church-yard, it fliall be lawfull for the Or-
dinary of the place, upon proof by two Witnefles, to fufp^nd the
Lzy-Of^cndtr ab iftgrejfH Eccle/i£^ and the Clerk-Offender from the
miniftration of his Office, for fuch time as to the faid Ord'nary
ihall feem meet : And if any one fhall fmite or lay violent hands up- co. lib. 6. fo.
on another in any Church or Church-yard, in that cafe if>/o fako i6.h. Green' :-~
the Offender (liall be deemed Excommunicate. But and if any per- Cafc.int.Leg.
fon Ihall malitioufly ftrike another with any weapon in any Church ^J^^'^'J'jJ^"^
or Church-yard •, or to the intent of ftriking another with the fame, ntfiiTsoir
fhall but draw a weapon in any Church or Church yard ^ the Of- dumxiamfu'
fender being thereof duly convided, Ihall lofe one of his Ears, if^^^^'-
he hath any, or in one of his Cheeks with a hot Iron be burnt and ^.l^^'^^^c\.
mark'd with the Letter F. in cafe he hath no Ears, and befides ihall uirl^ ' '^' "^ ^
ftand ipfo fa^o Ex'communicated '. Upon this Statute there was « scar. ■; Ed,
an Indictment againft Jafper Colmley and John Colmley of Huxton6.c. .%,
in the County of Middle fex ^ for that they Infidtum fecerunt upon
John Higham Dr. of Phyfick, in Ecclejia de Shoreditch praditia-,
Et pr<edi^. Joh. Higham ad tunc^ &c. ibidem in Ecclejia prjediB, de
Shoreditch, verberaveriint^ vulneraverunt^ & male traBavermt con-
tra formam Statuti^ e c. Upon this the Grand Jury find Billa vera
quoad Jafper Colmley^ and Ignoramm for John Colmley \ And there-
upon he appeared and pleaded Not guilty^ and found againft him.
Rolls now moved in an Arreft of Judgment, That the Indid:-
nient was not good, being Fecerum, whereas it is found onely BilU
vera againft one. Sed mn allocatur^ becaufe it was exhibited againft
Two, and it is but falfe Latin. Secondly, becaufe the Indiftment
is contra formam Statnti^ and this Offence is not punifliable by the
Statute, unlefsthat he fmote with a weapon, or drew a weapon in
the Church or Church-yard, or drew a weapon to that intent,
which is not mentioned in the Indidment : And by the Second
claufe in the Statute, Forfmiting or laying violent hands it is Ex-
communication ipfo faBo : and it is not mentioned here how he
ftruck, and thereof the Juftices doubted. But Jones faid. That the
Indidment is good for Battery at the Common Law. But all the
other fuftices were againft him therein •, for the Indictment con-
cluding centra formam Statmi^ it cannot be good as for an off'ence
at theCommon Law. But afterwards another Exception was ta-
ken ify Grimflon . becaufe the Offence was alledged to be done in
the'Church oi Shoreditch aforefaid, and Shoreditch v;as not named
* G g before t
140
Of Churches, Chapels,
before- And upon view of the Indidment, it appearing to be fo,
all the Court held, that the Indigent was void: And for this
^ Trin la caufe the Defendit was difcharged K In the Ecclefiafticai Laws
car B. R. of Jm , King of the Weft- S.:c.«^ cap. 6 ^ut tn Tempb pHgrn-
(Mmlefs ^,,,-^ [20 SoUMs mxiam Sarcito. lh\d. Jlindexemp-C^p. 6. Stjms
^^^' ^'''- in Ecdefta vwrnet , cenmm viginti Sol. emendet, &c. {_& alios 60 e^
^'^' '' w'rpr/w.d Alio among the EccleGaftical Laws of HoelDha
King of Wales. Mo. De fugna qn. ^nC^mcterio agnnr i^Lthr^
funt redder^da. Likewife in 1. i. LL. £a/./: Edoyardi Sen. R. An^
alU & Guthurni R. Danomm in Eafi^Jngha. Hoc fnmo decreve-
IrmL Ht Ecclefu fax intra fuos partetes inviolate fervemr. And m
cap 2 &z. LL. Eccl. Canuti Regis, valde rcBum c(i:^ ut Ecclefia pax
intra larietes fnos femper inconvulfa permaneaf, ^utcunjueeam perfre-
.erk de vita 6- ommbus tn mtfertcordia Regts fit. Et ft qut^ pacem
Ecclefi£ Dei violabit, ut intra parieter ejm homictdtum, hoc tnemenda-
bile fit, c- c. ni(i Rex ei vitam concedat.
(1 ) Where Prefcription is alledged for Right to a Seat m a
Church, or for Priority in that Seat, the Common Law hath took
cognizance thereof, as in the cafe of C.W...« againft//.^.;^^ w^^^^^^^
C. claimed the upper place in a Seat in the Church and //. difturb d
him in a violent manner ; and the Biihop of the Diocefe Tent an In-
hibition to C. untill the matter were determined before him. And by
the Court a Prohibition was awarded ; becaufe it does not belong
(as Reported) to the Spiritual Court : And as well the Priority m the
Seat, as the Seat it felf may be claimed by Prefcription : and an
Adion upon the Cafe lies for it at Common Law re. Lm iii,
. €arlem 122 1. The Ordinary hath in him the right of diftribution of the
.crTmL. seats in a Church, yet fo as that prefcription (liall take place whe-
Noy Rep. & ^j,^, jt refers to the right of any particular Parifhioner or to the
larch. Rep. ^^^^ ^^ ^^^ Church-wardcns. The Cafe was, G brought an Adi-
on of Trefpafs for the breaking of his Seat in the Church, and
cutting of the Timber in fmall pieces, and carrying them away, t^^c.
The Defendant pleads in Bar, That they were the Church^wardens :
and that the Plaintiff had ercfted that Seat without the Licenfe of
the Ordinary, and it was an hindrance to the Parifhioners, oc.
and that they as Church- wardens the faid Seat, C^c. the which is the
fame Trefpafs. The Plaintiffdemurs, and Judgment for him : For
admitting that the Church-wardens may remove a Seat in the Church
at their pleafure, yet they cannot cut the Timber oi the Pew, And
thereupon they confefled the Trefpafs. re.6E. 4. 7- 9 £• 4- H-
>{ ^ ^ 6 18 £ 4 18 21 // 7- 2.1. 11 H."]- 27. I I //. 4. 12 ™,
■aw. Wh'e/e there is 'a Parfon Impropriate, he hath the belt righti^o the
Wrkht?^aU' chief Seat in the Chancel, as was refolved in Sir Wtlham^alls
Of, m^ Rep. Q^^Q ^crainil £//^, where £. Farmer of a Redory Impropriate Lftels
}
and Church-yards, 141
in the Ecclefiaftical Court fro Sedile in dextra fane CancelU , and
in his Additional Libel he Libels, fro loco primo^ and principally in " T^*' 7 Jac*
dextra parte Cance/U. The Defendant there furmizes to have a Pro- 7^ f,' ^V%
hibition, ^od efi amiqua Parochia & antiqna CanvelU : and that /;^^ ^-^^ j^* '
he is feized of an ancient MefTuage in that Parifli, and that he and "Co. /nit. p.
all thofCj &c. have u fed to fit in dextra parte Car.celU pr&di6h. to ?'C' U-Brir.
hear, &c. And it was Refolved by the Court, that of common *'li'^*^>'^'''
right, the Parfon Impropriate, and per Confequem^ his Fsrmor ought £' ^^[^^qI^
to have the chief Seat in the Chancel ■, bccaufe he ought to repair it : 254. 22 A(I.°
But by Prefciiption another Parifliioner may have ir. But in this P- 95.
cafe a Confultation was awarded, with a 0Hoad^ ^c becaufe the Li- '^^ ^'^' ^9-
bel and the Additional that now is ail one, is pro. primo bco^ •&€. and p,% ^n' ^'
the furmife is onely pro Sedile in dextra pane, and noc pro Leo pri- v.d. St.iR.2.
ffio in it n. c.K.Dalt.lu.
(8.) The Church in conftrudlion of Law, is Do^tu r/ianfionalis^-^^'^Y^-^(^
Onmipotcntis Dei ^ and therefore it is Burglary for a man to break ^3^^^^^??'"^
and enter a Church in the night, of intent to iteal, &c. °. And foK. ofthel?.
facred is the Church or Church yard reputed in Law, tbatEcclefia- Saxons, c. 5*.
ftical perfons, whilfl: they are doing any Divine Service in either Q^siquisrciat-.
them, or in any other place dedicated to God, may not be Arre- J'^j'^i^'" ^^^^-
fted P. Yea anciently the Church and Church- yard was a Sandua-^'j;,r;,^^4'tX
ry, and the foundation of Abjuration •, for whoever was not capable ta pothor.
of this Sanduary, could not have the benefit of Abjuration-, and '^ 8 E. 2. cor.
therefore he that committed Sacrilege could not abjure, becaufe he j.^'^- ^'i'^**
could not take the Privilege of Sand:urary 4. This Abjuration ^^^tM^^^a/Ec-
when one having committed Felony, fled for fafeguard of his life to deftamconfk.
the Sanctuary of a Church or Church- yard , and there before ihQgi'tt, vitam
Coroner of that place within 40 days confefled the Felony, and took ^^.^^^^f- in a-
an Oath for his perpetual Banifhmentout of the Realm into a Foreign ri°LL EcdeT
(not Infidel) Countrey, c\\\i[m^X2t\\t'[ perdere Patriam qHamFitam"^. In^^c^^^^ '
But this Abjuration founded upon the Privilege of Sanduary is whol- ' Cuft. de
ly abrogated and taken away by an kCt made 2 1 Jac. Reg. whereby it ^^'■'"' ^ 24.
is Enad:ed, That no Sanduary or privilege of Sanduary fliould ^^^^^^l^i,^^ ^
admitted or allowed in any cafe ^. And here Note, That this kind 5. & int.' Lee.
of Abjuration hath no relation to that of Recufants by force of the Canuti^ fo.
Stat, of 3 3' Eliz.. cap. i. becaufe fuch Abjuration hath no dependency ^^s- c. 5. &
npon any Sanduary ^ But as to the other Abjuration in relation J"^^*^"^*?-?'
to Felonies, Sacrilege excepted, (no Abjuration or Sanduary being r , , jjj^ ^-^
allowed in cafes of Treafon or Petit Treafon) the Law was fo fa- the contim-
vourable for the Prefervation of Sanduary in the Church or Church- ^"^r 0/5^^-
yard. That if a Prifoner for Felony had before his attainder or con- J^'JJP' ^'^' ^^^
vidjin efcaped and taken Sanduary, and being pnrfued by his Kee- " ^^^ '•^"'i^j
pet's or others, were brought back again to the Prifon, he might vjd./)/^/!?^'.^
iip^n his Arraignment have pleaded the fame, and fiiould hnvQ Abj./j Sanf}.
G g s ' been
- 1^2 Of Churches^ Chapels^
been reftored again to the Sandtuary of the Church or Church-
" Lib. Inr. yard '.
552.b.Sana:. (^,) j^e defacing of Tombs, Sepulchres or Monuments eredled
^' jI^'^'- 45 E" in any Church, Chancel, Common Chapel or Church-yard, is (it
Bx!ii.^'w.At- feems) puniftiable by the Common Law ^ and for which the Erec-
M'f/.'-s Cafe, tours Of Builders thereof during their lives, and after their deceale
Co. inft. p.3. their Heirs fhall have the Adlion "'. But the Ereding thereof
cap, 10/. ought not to be the hindrance of Divine Service. And albeit
the Lady'"^ ^^^ Freehold of the Church is in the Parfon, yet if the Lord of a
Wkhe\Qz[e. Mancur, or any other that hath an Houfe within the Town or Pa-
ge Mich. 10 rilh , and he and all thofe whofe Eftate he hath in the Manfion-
jac. C.B. houfe of the Manour, or other Houfe, hath had a Seat in an Ifle
5 CoTnft. °^ ^^^ Church, for him and his Family onely, and have repaired it
par. 3. ca.97.* at ^*5 °^'" proper charges, it Ihall be intended that fome of his
AfHodaturJ Anccllours, or of the parties whofe Eftate he hath, did build and
quUarmain gj-e^ that Ifle for him and his Family onely \ and therefore if the
OtTdel^vVfeu ^'^^^n^ry endeavour to remove him , or place any other there , a
rt/^M77^^?^f" Prohibition (rs was refolved in Corvens Cafe) will lie^. It hath
CadanxCon- alfo been farther Refolved, That if any man hath a Houfe in a
cii. 29. Town or Parifli, and that he and thofe whofe Eftate he hath in the
r n'^d''? c*^* Ho"^^ ' ^^^^ ^^^ ^^"^^ ^^^ °^ n\\n^ a certain Pew or Seat in the
\mcTCor'ven Church, maintained by him and them, the Ordinary may not re-
6 V)m. move him (for Vrefcriftion^ according to Sir Ed. Coke^ maketh Cer-
tainty^ the Mother of Quietnefs) otherwife a Prohibition will alfo
y B 'ri.7.T2.a. lie in the cafe y. But where there is no Prefer iption, there the Or-
^^^^ Tv^^f^h' ^^"ary for avoiding of contention in the Church, may place the
'iTiac.Carn. Parifhioners in the Church or publick Chapel according to their
Srel. inter ' qualities and degrees^. And until the Bifhop hath confecrated or
i/# and dedicated Churches or publick Chapels new ereded, the Law doth
iayron.?yc(ol pot take knov^/lcdgc of them e]ua tales ^ for which reafon it is. That
Co. rnf?.^par' ^ ^^urch or not a Church ; a Chapel or not a Chapel -, is tried or
■^. cap. 97. ' certified by the Bifliop ^.
'8H.7.i2.a. (10.) Touching the Reparation of Churches , the cognizance
ace. 12 H. 2. thereof appertains to the Ecclefiaftical Court, as was agreed by
Co ubiTu"^' ^^^ Court in Buchj Cafe againft Amcotts^ where in a Prohibition
. jj" H. (jj.^ls* the Defendant faid, That in Hontechurch in EJfex are Chapels of
57. 'Eafe, viz,. Rumford and Haveringe Chapels, and that they of
HAveringe have ufed time out of mind, &c. to contribute to the
Reparation of Rumford : and that in the time of H. 4. vinate Li-
ter ar. Patent. & ccncurrentibi^ lis, (^c. And Rumford was pulled
down, and eredled in a more convenient place within this precindl
and circuit, viz.. twenty eight foot longer and fifteen footibroa-
der. xVoy, that it does not lie. {i.) Ttrtute Literar. Patent, n^gc-
neral is not good. But the Patent ought to have been fnewn inhac
verha^
a?id Church-yards. 14.5
verba^ Or producM in Court-, by which the Court might* judge : For
a new Church cannot be eretfted without Letters Patents, becaufe
it is a Sanctuary , Ve. 5 E. 3. 26. \ H. -].!%. & 22 E. 4. the Lord
Lifle''i> Cafe. (2.) The Prefcription is gone, by the ereding in
another place, and longer, &c. as aforefaid, ve. 4. Rep. P. 6. And
that fnall be taken ftrid:, /'fr/;f«/76i. 7£.4.27. io£. 3. 23. But
the Court was on the contrary, becaufe it is pro bono publico^ and
in fuch a cafe a Pleader by ConcHrremibm iu^ is good. As in an
Union, 1 1 //. 7. 8. And that the cognizance for Reparation of the
Church, spperrains to the Spinuial Court-, and it is not like the
Cafe of a Tenure, 4. Ke^. 86. becaufe the Tenant by that is put to a
greater charge, and no profit or benefii: accrues to the Tenant, as it
does to the Parilhioner. And Eafter Term enfuing, a Confultation
was granted by the Court i*. He that hath the Impropriation of . ^^ r
a Redtory or Parfonage , ought to repair the Chancel , and fo he b. r. bJi:^'
ought to contribute to the reparation of the Church, if he hath aTiy againft Am-
Land in that Village. Mch.iSJac. B- R. Serjeant Danes Cafe. Roll/f^^- '^?>
Rep. par. 2. ^^^°
(11.) The Church-wardens of Dtnford., an Ancient Church in
the County of Northampton .^ fue the Inhabitants of Kin^ftead in
the fame Parifli, where there was a Chapel of Eafe, for Contri^
bution to repair the Church of Denford. And they pray a Prohi-
bition upon fuggeftion. That time out of mind, &c. they have u-
fed to repair their own Chapel, and onely a part of the Wall of the
Church-yard of the faid Church of Denford. And it feemed by the
better opinion of the Court, that it was not good. For their Eafc
. fhall not be a difeafe to the reft of the Pariihioners. For Popham
faid , That the AITent is not rcquifite to build a Chapel of Eafe ,
and then the Ordinary and the Parfon cannot charge the Parishio-
ners with greater Charge. By Tdverton ^ That the Parfon ought
to repair the Wall of the Church- yard. But by Fenner^ the Pari-
fhioners in the Spiritual Court fhall be compelled to doe it, although
that the Frank-tenement be in the Parfon. Teherton objeded, and
by Kemp Secondary, that the Pariihioners of repair the
Wall of the Church-yard. Yet now it was ordered, that Prohibi-
tion fliall be granted, and the Defendants if they pleafe may de-
murr upon it. Note alfo B. 5. Jac. B. R. a Derbyfliire Cafe, where
a Prohibition in fuch cafe was denied <^. c p^f^. ^ ?a,^
(12.) Two Church- wardens fue S. for Reparation of the Church Elix. Thi.-
according to the Tax affeft. S. pleads he always offered to pay. By Church--Ajr-
which the Sentence in the Ecclcfiaftical Court paifed againft them. ^^^."^^^^(^'''^'
The^ftiey Appeal, and Sentence is repealed, and 15/. coils given a^v l;eo.^
to tj?em, and they fue for that 1 5 /. in the Eccleliaftica} Court- S. ' ' ' *
plejds a Releafe of one of the Church-wardens. And in a Prohi-
bition
144- Of Churches^ Chape Is y
bition it feem'd to the three juftices, That that Releafe is a Bar a-
gainft the other, and chat if it be difallowed in the Spiritual Court, [
by the Court it was faid a Prohibition fliall lie. '^Jac. B.R. rot. 852.,'
A Gonfultation in fuch cafe was granted, for the Church-wardens
in fuch a Cafe are a Corporation for the benefit, but not for the pre-
judice of the Parilh. 13 H. 7. 9. \i H.^. 12. And they fhali reco-
ver the Cofts to the ufe of che Church, and the Releafe (hall be well
«» Gm verf. enough. determined there where the Suit was commenced ^.
stak. (13-) \^ fiealh Cafe againft the Church-wardens of Hobleton^ it
NoyKf^. ^gg agreed by the Court, That for a Tax afTeftfor the Reparation
of a Church a Rate made perpetnis dnratiira temporibm^ it is not
• good to bind the Inheritance; but yet it is good byway of direc-
* Cafe z^.^j/'s tion , how and how much fliall be levied as need requires ^ And
verf. Church- in Chamher'^s Cafe a Prohibition was awarded to the Court of
wardens of the Bilhop of O^f/or^ •, for that, thzt Chambers was fued there for
Bobleton. ^ perpetual charge impofed upon his I and, for the Reparation of
fchan^b'eri ^^^ Church. For by the Court, an Inheritance cannot be char-
Cafe. ged with that *■'.
%Rep. In another Cafe one that was fued in the Ecclefiaftical Court for
Rates to reparation of the Church, alledged that they had over-
valued his Land, Rating them ac the value of 100 /. per annum ^
they being worth but 60 /. (2.) He alledged a Cuftome in the Pa-
rilh, that they ought to be rated not according to the value of their
Farms and Houfes, bur onely according to the value of their Sheep-
walks^ on that matter he prayed a Prohibition. As to the firft, all
the Court {except IVhulck) Refolved, that it is not material, be-
caufe the Rates ought to follow the value of the Land, and for that
the valuing of the Land properly bolongs to them. As to the fe-
cond, A^fTy moved. That although the Principal be a thing Spiritu-
al, yet it is now mixt with a Cuftome, as in the Cafe de modo dtci-
Mich. 22 Ja. mandi the Ecclefiaftical Court is oufted of his Jurifdidion. Hou^h-
^.R. Holland i OH Jiiiiice, It fcems fo as to other things-, but the Church being
r'^i! ^"^^''"* ^^^ H^ule of Gcd, is more to be regarded, and a cuftome in pre-
° ^ ^^' judice to the Reparations of the Church, is void; for of common
Right the Houfeand all Lands die chargeable to -he Reparations.
And the Court commanded him to make a Suggeftion of the Cu-
ftome, omitting the value, and then they would confider, whe-
ther a Prohibition ihould go or no.
€ro. par. i. In Steevcufon's Cafe it was refolved, that if one hath Lands in
one Town , and doih inhabit in another •, he ftiail be compelled
to be contributary to the Reparation of the Parilh-Church where
the Lands are. ^
( 14.) Note, by Coke Chief Juftice, That the keeping^bf a
Church- Book for the Age of thofe that Ihould be Born and Ck-ift-
ned
and Church-yards, i45
ncd in the Parifti, began in the Thirtieth year of Ucnry the Eighth,
bytheIn{ligationoftheLordCroww//8. „, , . ,. , -, ' ^^^^
(15.) Chapl, Catena, of the French iCha^ellee,^ that is,_ ^.r^/.O l^^d J»f ^^^^^
Of this there feems to be three forts •, the one fucn as adjoins to the IX£Z^
Church, as parcel of the fame built by perfons of honour ut ih-
demFamilUrUSeVHlchrafihtconliitHant; Another, that which is fe-
p.rate from the Mother-Church in a PariHi of a large extent, built
for the better eafe and convenience of fuch Panfliioners whofe habi-
tations are remote and far diftant from the Parilli- Church , and
thence vulgarly called a Ch^fd oi Eafe, being ferved by fome infe-
riour Curate ac the charge either of the Redor, or of fuch as for
whofe convenience it is, according to the cuftome or compofiuon.
A rhapcl oiEafe is where there is a Parochial Church in the fame
Parifh wherein the Sacraments are adminiftred, and not in the Cha-
pel 'in 6.32. which appertains to the Parochial Church, and
the Parfon thereof. Ihid. And a Parochial Church cannot be a Cha-
pel 8 // 6. 37. The Third is that which is called a Free-Chapel^
which in point of Maintenance and Endowment, asalfo in refped of
exemption from the Ordinaries jurifdidion, feems to differ from
both the former, and hath perpetual Maintenance towards the up-
holding thereof, by a charitable endowment thereof, without the
Charge of the Reftor or Parifh h. So that a Free-Chapel or Libera " ,7 H.8.C.4.
Catena is, according to the opinion of fome no other than a Cha- ]^^;f-^'lf'
pel founded within fome Parochial Prec.nas for Dmne Service, by //;^J^/;^'J
the bounty of fome well difpofed.perion Tover and above the Mo> chapel to one,
ther Church) to which it was at the Parifhioners choice or liberty he ought io be
(for whofe convenience it was ereded) to repair or not and ^^^J"l^i^f-
dowed with Maintenance by the Founder, and therefore called Free.^j;«^| ^*^
Notwiihftanding which others are of opinion, and that m err e pro- ,49.4.11.5.
bable That thefe oneiy are Free- Chapels, which are of the Fomi- and RoI.Abr.
dation of Kings, and by them exempted from the )urifdidion of the verb.Prefenc^
Ordinary^ but the King may alfohcenfea SuDjea roTound fuch a "^^'^r, T. l.
Chapei, and by his Charter exempt it from the Vihtation of the^ s- .5 •
Ordinary ; in refped of which exemption, and from the )iirifdid^ .
on of the Diocefan, it appears by the Regtflcr or Wms to be called ^y,,;/j^^{^
Free ' H ^E.3. B.R. Rot. 97. Epfcofw Exon. An achat, ad re- 4.,.
fvondendum Domino Regt c^nare exerceret jHrtfdmanemin Cafella R^gia -IbiJ. 6 T.
Sana^ BHTian. in Cormh. &c, K The Kirig himfelf vifus his ree ;-^Ko^
Chapels and Hofpitals, and not the Ordinary K The Lord Chan- ^^^^^^ ^^
cellour executes it for the King. Thefe Chapels were all of them, p,0Kies 4. 27
together with Chantries given to the King - : Of this kind is the E |. 85. F.
Free Chapel of St. Martin le Grmd ". The Canonifts are not a- ^-f'^l'
oreedJ^uching the derivation of this word •, fome take it {a c^ ^ ■ • '
%HnIo Laicos,) others (kCapra,) becaufe they conceive that they , . ^j ^ ,,^^
14^ Of Churches-, Chapels,
refemble thofe Cottages which were wont to be covered over with
Goat-skins. Others ( a cappa Divi Martwi.) Others ( e Chap-
'^-Rehuff.de pellee^ Gallic.) o.
facrf.pojjejf. (i6.) In the Parifh o^ J ft on (in the County oi Warmc\) which
G"i'°5"«r^" ^^^^ ^ ^^"^^ Church, is a certain Chapel of Eafe^ called Caftle-
lib^^iV^c '20. ^^^'^^^^^ Chapel, and a certain Precindt called C aft le-Bir midge ^ the
7. /4na'rd?rfffl'<? Inhabitants thereof refort to the faid Chapel, and there Marry,
benej.c.ii. Chriften and receive the Sacraments-, there are alfo Church- war-
nu. 10. dens, and the Inhabitants have a Perambulation there of it felf •,
notwithftandiag all which, when it came in debate, whether the
PariOnoners of the Chapel ( the Parifh-Church of J4/fo« being in
decay ) might be taxed towards the Reparation thereof, they ob-
tained a Prohibition on a Surmize , which not appearing to be
true, a Confukation was awarded ^ yet in that cafe it was held, that
if two Churches Parochial be united, the Reparation Ihall be feve-
ral as before. And that a Chapel of Eafe is part of the Parilh, &
de commn>ii jure liable to reparations of the Parifli Church ^ that
fuch as have a Chapel of Eafe miy refort to the Parifh Church •, if
they fo pleafe ; and that the Parfon of the Parifli Church may Of-
vQikAfton ficiate at the Chapel of Eafe if he will P.
Parifh ver. ( j 7.) 1)^^ Emperour Jujlinian in the fifth Collation of his Novel
auitfrnb Conftitutions, commonly called x.ht Jmhemicks^ emitted by him af-
Rep. ' ' ter the Digeft and the Code, hath ordained, that no man build a G^^-
fel in his houfe without the leave of the Bifhop, and before he confe-
crate the place by prayer, and fet up the Crofs there, and make pro-
cefTion in the place-, and that before he build it, he allot out Lands
neceffary for the maintenance of the fame, and thofe that fhall at-
tend on God's Service in the place, in which Co//^r/o« there is alfo
that which feems to bear fome conformity with the Ads of Unifor-
mity, cftabliflied in this Realm againft Seditious Conventicles ; For
in thzt Collation h is likewife ordained by the faid Emperour, That
the facred Myfterics or Minifteries be not done in private Houfes,
but be celebrated in publick places, left thereby things be done con-
trary to the Catholick and Apoftolick Faith, unlefs they call to the
celebrating of the fame fuch Clerks of whofe Faith and Conformity
there is no doubt made, or thofe who are thereunto deputed by the
Bifliop. But Chapels and places to pray in every man may have in
his own Houfe ^ if any thing be done to the contrary, the Houfe
wherein thefe things are done, fhall be confifcate, and themfelves
«5 Amh. Col/, puniflied at the difcretionof the Prince q.
s. vid. /i/aV. (i8.) yi. the Father had ail his life the chief place in a certain
View, cap. 3. gpg^ in the Church, and H. his Son likewife claimed the fame, and
Sca.5. par.i. ^^ difturb'd him in a violent manner^ the Archbifliop of iK,^^, in
whofe Jurifditlion this was, granted an Inhibition againft C. till the
iKaccer
arid Church-yards, 1 47
matter were determined before him, and excommunicated hira for
Difobedience. C. claimed the place by Prefcription, and for that
Reafon prayed a Prohibition: And it was faid. That the Excom-
munication was onely for his Contempt : And it is lawful! for the Bi-
fiiop to grant fuch an Inhibition for the peace of the Church. And
Voderidge agreed, That if the Bifhop did inhibit any from making
a difturbance in the Church, it was good, and therefore would not
grant a Prohibition for well-doing. Crew & Joms^ &c. But here he
had not done well. Dodcridge e contra. Then is was faid, That here
the Bifhop had inhibited till the matter were determined before
himfelf And the whole Court agreed. That a Seat in a Church /^
claimed by Prefcription, and the priority therein iikewife claimed
by Prefcription, is triable in this Court by an Adlion upon the Cafe,
and not in the Spiritual Court. And at lalt it was agreed by the
parties, that H. fhould remain in poflefllon till the Matter were
tried by Prohibition. And a Prohibition was awarded in the Cafe ■*. r fjtittotis
Note^ That a Prohibition may not be granted after a Confulta- Cafe. Lacch.
tion C And as it feems , by the Courle of Proceedings in the ^^P-
Court of the Kwfs Bench^ a Prohibition fhall not be granted the verf. wSZ
lall day of a Ttfrm, and fuch a motion ought not then to be made ., /,„.'
but upon a motion there may be a Rule to ftay proceedings till the Latch. Rep.
next Term t. \Amr.y;riHi.
(19.) It was moved in the King's Bench for a Prohibition to the Lat:'h^^^°
Ecclefiaftical Court at Worcefler^ and fhewed for caufe (i.) That
the Suit there was for Money, which by the aflent of the greater
part of the Parilhioners of X>. was allefled upon the Plaintiff for the
Reparation, viz.. for the Re-cafting of their Bells-, the Truth is.
That the charge was for making of new Bells , where there were
Four before, whereby it appears that it is merely matter of curio-
fity, and not of neceflity, for which the Parifhioners fhall not be
liable to fuch Taxations, and herein it was relied upon 44^. 3- 19.
by Finchden. (2.) The party there is overcharged , of which the
Common Law fhall judge. 3. The party hath alledged . that he
and all thofe who have an Eftate in fuch a Tenement, have ufed to
pay but Eleven fhillings for any Reparation of the Church. But
the Prohibition is denied^ and by Doderidge in the Book of 44
£. 3. there was a By-law in the cafe to diftrain, which is a thing
merely Temporal , for which the Prohibition was granted & per
Curiam •, in this cafe the Aflefsment by the major part of the Pa-
rifhioners bind the party, albeit he affented not to it : And the
Court feemed to be of opinion. That the Cuftome was not reafo-
nable, becaufe it laid a burthen upon the reft of the Parifh. Littleton
of Coii^il of the other fide, Suppofe the Church fall, fhall he pay
but Eleven fhillings ? lfhitloc\^ If the Church falls, the Parifhioners
• Hh are
V48 Of Churches, Chapels,
. Mic. 2 car. are not bound to build it up again, which was not denied by Jufticc !
Poph. Rep. Jones ", „ . . • j • ^t
Kefarano»r. C20O Roberts and Others of E4- Greenwich were cited in the
Ecclefiaftical Court to pay money that the Church-wardens had
expended in Reparation of the Church \ and the Inhabitants
allcdged , that the Tax was made by the Church-wardens them-
felves, without calling the Freeholders, and alfo that the Moneys,
were expended in the Re-edifying Seats of the Churches, which
belonsed to their feveral houfes : And they never aflented, that
thev iliould be pulled down. And now the Allegation was nor al-
lowed in the Ecclefiaftical Court , but Sentence was given againft
them. And then they appealed to the Arches^ where this Allega-
tion was alfo rejeded ;, and for that he prayed a Prohibition : And
the Court agreed, That the Tax cannot be made by the Church-
wardens but by the greater number of the Inhabitants it may, and
a Prohibition was granted. But by Tdverton, if they be cited by
Ex Officio^ a Prohibition will not lie •, for fo was it Ex mfmHatw-
^ The Cafe of ^^ ^^_ ^^^ ^^^ Wardens came and prayed a Citation, &c. But
!1S Hel by Richardfon, Harvty and Crook privately, a ProlJbition will lie in
]eYs Rep. both cafes ''. ^. , ^ ' n, A J-
SeatfjnA (21.) £ libcls in the Ecclefiaftical Court againft A. pretending
€hurcb. j.j^^j. g gggi; ji^at the other claimed always in the Church, belonged
to his Houfe, and Sentence in that Court was given againft E. and
Cofts trofdfo clamore. And he appealed to the Jrches, and there
when they were ready to affirm the Sentence, he prayed a Prohibi-
tion. And it was moved by Davenport , that it may be granted :
and he cited one Trefoarns Cafe 33 ^t^^- where in fucha cafe a Pro-
hibition wa* granted after an Appeal. Richardfon^ There is no
raufe for any Prohibition, but in reipea of the cofts. Hmton faid
it was a double vexation, and the party (hall not have cofts for that.
Hitcham faid , they came too late to have a Prohibition for the
Cofts. Richard fon, that is not like to the Probat of a Will, where
a thing may fall out triable at the Common Law. But there the
Principal was tried at the Common Law \ for they had it as in right.
Mutton, Seats in the generality are in the power of the Ordinary to
difpofe ; it is the Prefcription which makes that triable at the Com^
mon Law ^ and if Prefcription be made there, and it be found, then
be ftiall pay cofts. Richard/on, All Difturbances appertain alfo to
them ; if it be not upon the Statute of 5 Ed. 6. But if a Title be
made there by Prefcription, it is merely cor^j;^ non Jndice; and if
f Eaton a= jj^gy cannot meddle with the Principal, it is not reafon that they
gi,f,f^f'-fhould tax Cofts. And a Prohibition was granted y. ■
feZratknof (22.) H, Farmer of a Manour ^ A and other Church- w^'dens li-
rfthechmch. bel againft him in the Ecclefiaftical Court for a Tax for the^Jepara-
and Church-yards. 1 4P
tion of the Church. Henden moved for a Prohibition becaufe that
firft the Libel was upon a Cuftome, That the Lands Ihould be
charged for Reparations, which Cuftomes ought to be tried at the
Common Law. And fecondly, Becaufe the cuftome of that place
is that Houfes and arable Lands (liould onely be taxed for the Repa-
rations of the Church, and Meadow and Pafture fhould be charged
with other Taxes. But the whole Court on the contrary : Firft,
although that a Libel is by a cuftome, yet the other Lands (hall be
difchargeable by the Common Law •, but the ufage is to alledge a
cuftome i and alfo that Houfes are chargeable to the Reparations
of the Church , as well as Land. And thirdly. That a cuftome
to difcharge fome Lands is not good. Wherefore a Prohibition , Hill. 4 Cw.
was granted^. '&.?<. Andrews
Note that where a man fued in the Ecclefiaftical Court, pre- verf. ^«r^on.
fcribin^^'to have a Seat in a Church ratione Me^uagti wherejhe i^'Tll'l'^^'
habited"; upon the motion of Serjeant Henden^ a Prohibition was p^^ Cafe
granted, for it is a Temporal things ^ , . . ^. . ?"^^^^'^^'
Note By Coke Chief Juftice, That the keeping of a Church- ^f^--^
Book fo'r the age of thofe, which fhould be born and Chriftened in '';^^l;f^^^
the Parifh, began in the ^oth year of Henry the Etghth : by the in- ^^^^^^^^
ftieation of the Lord Cro;«n7f/ ''. . iVo/sRep.
A man was indidled upon the Statute of Ed. 6. That in the Striking in
Church-yard, fuch a day, extmxit gUdtum againft J. L. & i?f^m the church-
percHlfit ; and becaufe the Statute was, // any prfon malinoHJly ftrike^ '
another •, or (l^all draw any Weafon with an intent to ftrtke any per fop: ^
And the Indi^ment was quod extraxit^ but does not fay ^^/^^^/-^^S:
tiendHm: And becaufe it is quod percuffit without faying '«^'^fW^,Poftdia.a.
the party was difcharged upon Judgments %'s Rep.
If there be a Parfon impropriate of a Church, and alio a Vicar Trees in the
endowed of the fame Church, the Trees in the Church-yard do ^Z-'^^^^-'^^''^.
there belong to the Vicar, and not to the Parfon ; for that there
the Vicar ought to repair the Church, and he fhall have the Trees ^^^^^^^^
which ought to repair the Church. DubnatHr. Mich. isJac. B. R, ^^^^^ ^^^^^^^
Bellamy sCzkd. . u r^u u u r^ l""'^' ■ ,
The Lord Coke faid, That for the Body of the Church, the Or- Seats m the
dinaryis to place and difplace^ in the Chancel the Freehold ism^-^f-
the Parfon, and it is parcel of his Glebe ; Trefpafs will he by the ^7^^|^^I^„
Heir for pulling down the Coat- Armour, &c. ot his Anceltours, £^^^ ^^.
fet UP in the Church : a Pew cannot belong to a Houfe. ^
(zV) Aninhabitant of the Parifh of D. hath Land in his occu- ^^.r^.«^^^
pation in the Parifh of 5. The Church-wardens of 5. and other the «/ ^^^ c*«^^^-
Parifhioaers there make a Tax for the Reparation of the Church,
for O'iZments of the Church, and for the Sexton's wages amoun-
ting to the fum of 23 /. and the Tax of the Church being deduded,
° » H h 2 cometh
150 Of Churches^ Chapels^
cometh but to 3 /. onely. The Foreigner which dwells in D. is fued
in the Ecclefiaftical Court by the Chnrch- wardens of 5. for his part
of the faid Tax i and he prays a Prohibition. Henden faid, he well
agreed the Cafe of Jcffertes^ 5 Coke^ that he (hould be charged, if
this Tax had been for the Reparation of the Church onely ^ for this
is in nature real. But when that is joined with other things, which
are in nature perfonal, as Ornaments of the Church, or Sexton's
wages, with which, as it feems he is not chargeable, then Prohi-
bition lies for all. FUmming Chief Jullice, and Williams ]\\^iqq ^
thought fit that he fhould not have a Prohibition : for as well the
Reparations of the Church, as the Ornaments thereof, are merely
Spiritual, with which this Court hath nothing to doe ^ and Flem-
ming faid, that fuch Tax is not any charge ifluing out of the Land,
as a Rent, but every perfon is taxed according to the value of the
Land •, But Tehtrton and Fenner to the contrary, that a Prohibition
doth lie, for the fame diverfity which had been conceived at the
Bar •, and alfo they faid , that he which dwells in another Parifli,
doth not intend to have benefit by the Ornaments of the Church,
or for the Sexton's wages : And for that it was agreed by all, by
the Chief Juftice, Williams^ and the others, that if Tax be made
ffThu%^"' for the Reparation of Seats in the Church, that a Foreigner fhall
Seats. ' not be taxed for that, becaufe he hath no benefit by them in parti--
^Pafc. 8]a. culatj and the Court would advife ^ In Tenner and Crompton'*s
B. R. Waggi- Cafe it was held, that none fiiall be chargeable for Contribution
B^ownl.Rep; to^the Church-reckonings if he do not inhabit there, or confent to
par. 2. * them. Mores Rep.
Mic.sjac. B. (2^.) Note^ upon a motion for a Prohibition, that if a Parfon
1^. Brown, contrad with me by word, for keeping back my own Tithes for
uhjfupra. three or four years-, this is a good Bargain by way of Retainer:
and if he fue me in the Ecclefiaftical Court for my Tithes, I ihall
have a Prohibition upon this compofition. But if he grant to me
the Tithes of another , though it be but for a year j this is not
good unlefs it be by Deed.
Seats in the (25.) The difpofal of Seats in the Body of the Church dothbe-
chnrcb. Jong of common right to the Ordinary of tlie Diocefe, fo as he may
place and difplace at his pleafure. If a man and his anceftours, and
all thofe whofe Efl;ate he hath in a certain Mefluage , have ufed
time out of mind, &c. to repair an Ifle of the Church, and to fit
' Mich. II there, and none other : the Ordinary may not difplace him j for if
J^*^* 5; j^*/"fo then a Prohibition lies, for that he hath it by prefcription upon
iTiac. B.'^ 'reafonable confideration ^ : Likewife if a man prefcribe, that he
Pym's Cafe, 211^ his Anceftours, and all thofe whofe Eftates he hath in a certain
>fr c«r. Hob. Mefiuage , have ufed to fit in a certain Pew in the body^^f the
Jep. 95- & Church time out of mind, &c, in confideration that he, &cSh2ve
More Rep. ^^^^^^^
and Church-yards, 151
ufed time out of time to repair the faid Seat. If the Ordinary re-
move him from that Seat, a Prohibition lies, for in this cafe the Or- s Tr. 12 Ja.
dinary hath not any power to difpofe thereof^ for that it is a good B- cro/^'s Ca.
prefcription, and by intendment there may be a good confideration 5^'°!^'^''
tor the commencement of that prefcription , although the place t'J'^^ l^I/'a
where the Seat is be the Parfon's Freehold. In this cafe a Prohi- and Hujef.
hition was granted to the Biihop of Exeter for one CrofsB. But Refo]. & m.
if a man prefcribe to have a Seat in the Bocly of the Chnrch^ general- '5 Ja. B,
ly without the faid confideration of repairing the Seat, the Ordi- f)!Jy Hob"^
nary may difplace him^. But with the Seats in the Chapels an-Rep.p^^.^oi.
nexed to Noblemens Houfes, it is faid the Ordinary hath nothing Abr. p. 288.*
to doe'. If there be a Cuftome in a Parifh, that 12 of the Pa-'^-^^Jac
rifnioncrs may chufe the Church-wardens, which C hurch- wardens^' IV /''^J^<^«'"'
have power by the- cuftome to repair the old Seats, and ered new Bmhby Hob.
in the Body of the Church, and to appoint who fliall fit in them ; 93.
And the Church wardens fo eled, erect a new Seat in the Body 'Tr. 12 Ja.
of the Church, and appoint a certain perfon to fit there-, and af-o'/^^/f^'^*
ter the Ordinary decree. That another fliall have the Seat : In thisfo° '^gg
cafe it is faid a Prohibition lies, for the cuftome hath fixt the pow- ' Pafch! r^
er of difpofing the Seats in this cafe in the Church- wardens, and a Jac.B.R.in-
Prohibition was granted : But it was alfo partly granted, for that ^'" ^''''*/'' Sc
the Sentence of the Ordinary was, that T. lliould have the Seat to^^fse?
him and his Heirs, and that none Ihould difturh him in pein of Ex- the church"
communication, which is unreafonable •, and by that Sentence he of St. Sreoc-^
and his Heirs fliall have it, although they be not Inhabitants with-^^c^oj/mM//.
inthePariOik. mtpJoKb''
(26.) The Ecdefiafticai Court hath cognizance of the Repara- tfJn, p?288.
tions of the Body of the Church ^ If a man that dwells in one ' Co'. §.'/(?/-'
Parifh, hath Land in another, the which he keeps in his ownhands/^c'sCafedy.
and occupation, he fhall be charged for that Land for the Repara- ^^'^^'^^'l-
tion for the Church of that PariUi where the Land lies, for that he ,^^^f/J;'^"'/^
may come when he will, and it is a charge in refpcct of the Land '^. "> co. ibrd.
But if an Inhabitant in one Parifh, leafe out his Land which he hath & Tr. u jac.
in another Parifh , referving Rent, he fliall not be charged where ^'j^'"^*'^*^^
the Land lies, in refped of the Rent, becaufe there is a Parifhio- contr^M^'"^'
ner and an Inhabitant that may be charged ". And a man cannot 4,. el b.'r!
be charged in the Parifh where he doth inhabit, for Land which ;e/C«r.
he hath in another Parifh , to the Reparation of the Church , for " Co. ibid.
that he may then be twice charged, for he may be charged for ^^^t&l^-^'^^^'^'
in the Parifh where the Land doth lie « ^ in Vv'hich cafe Prohibition jac'^B. ^
hath been granted. - Pafch. 16.
(27.) If a Citizen of London ered: a Houfe in the Parifh of^. JacB.R.sir
with^intent of dwelling there in rime of Sicknefs at London ^^'^f^.^ ^^^^
an/hath not any Land in the Parifh and after is allelTed 20/. forco. s'l^f
• Repa-//r/j67.
1^2 Of Churches^ Chapels,
Reparation of the Church, where others who have loo acres of
Land in the fame Parifli , pay but 6 d. yet no Prohibition fhall be
granted on a Suit for the faidio s. in the Ecclefiaftical Court, for
that they have jurifdidion of the thing, and for which reafon they
? M. 5. jac. may order it according to their Law p.
B.Sii R9. (28.) If there be a Chapel of Eafe within a Parifh , and any
isrCi^^^^' P^^^^^^ of the PariOi have ufed time out of mind, &c. alone and by
themfelves without others of the Parifhioners to repair that Chapel
ot Eafe, and there to hear divine Service, and to marry, and all
other things, onely they bury at the Mother-Church ^ yet they fhall
notbedifchargedof Keparations of the Mother-Church, but ought
to contribute to the fame, for the Chapel was ordained onely for
*i M. 15 Jac. their eafe 'i. But if Inhabitants within a Chapelry prefcribe to be
B,cheCaieof^if(;[,afg^j time out of mind, &c. of the Reparation of the Mo-
wardenrof" ther-Church, and are fued in the Ecclefiaftical Court for the fame,
Afhton, and ^ Prohibition lies on that furmize ^
the Inhabi-
tants oiCajile Bromage. Hob. Rep. 91. ' Hob. Rep. 92.
Ornaments of (29.) If a man be rated for the Ornaments of the Church ac-
tk cimch. cording to the Land which he hath in the Parifh, a Prohibition lies,
^ Mich. 20. for the Rate for that ought to be according to the perfonal Eftate ^.
Jac. B. R. Alfo if a man who is not any Inhabitant within the Parifh, but hath
Land there, be rated for the Ornaments of the Church according
to the Land, a Prohibition lies, for the Inhabitants ought to be ra-
« Ibid. Refol. ted for that ^ ^ and it was faid by Teherton, That it had been often
per Cur. fo refolved.
(30.) If all the Parifhioners are not rated for the Reparation of
the Church , but fome are and fome are nor , and thofe that are
*M!t.h. u rated be fued in the Ecclefiaftical Court, a PiOhibition will lie v.
Car. B.R. But if the major part of the Parifhioners of a Parifh, where there
pey Cur. ^^^ ^q^j. gglls, doth agree that there fhall be a fifth Bell made, and
it be made accordingly, and a Rate made for payment of the fame ;
it fhall bind the leiler part of the Parifhioners although they did
not agree to it, for otherwife any obftinate perfons may hinder a-
ny thing intended to be done for the Ornaments of the Church •,
^ Mich. 2 and therefore in this cafe a Prohibition was denied ^.
Car. B. R. (^ j) Yhc Ecclefiaftical Court may not try the Bounds of a Pa-
K'" C't'"' j.jj]^ . if therefore there be a Suit there depending for that a Prohi-
bition will lie ^ as where the difference is between two Vicars
concerning a Chapel of Eafe •, As when the Vicar of a Parifh Li-
bels againft another to avoid his Inftitution to the Church ^pf D.
which he fuppofes to be a Chapel of Eafe belonging to his\yca-
lage : if the Defendant fuggeft, that D. is a Pariih of it felf, and
'hot
and Church-yards. 15^
not a Chapel of Eafe, a Prohibition lies, for they may not try the >' Midi. 14^
Bounds of a Parifh y. >c. b. r.
(32.) If a Vicar fue the Parfon Impropriate for damages for^^w^-
cutting down the Trees growing in the Church-yard, a Prohibi- Refoi.&Hiu'
tion lies j for that if the Trees belong to him, he may have Tre- 41 EI. B.R.'
fpafs at Lommon Law ^ And in this cafe a Prohibition was gran- ^^P^^ ^nd
tpA 8 Earnaby, Ad-
• i J *• I O rT'f
(33 ) One being fued in the Ecclefiaftical Court for money for , ^ ^c. B. a!,
reparation of the Church, prayed a Prohibition and had it, zwdFcjier^fiidZ
after it was moved for a Confultation. The cafe was this, viz.. The Adjudg'd.
party that was fued, prefcrib'd that there is a Chapel within ^^be g^''^* 'jja.
Tame Village, in which they have had at all times S agy amenta & f„y^'Q^,^^^'
Sacramentalia , and that he nor the Inhabitants, of that Village Rcfolv'd.*
which refort to the faid Chapel, have ever yfed to repair the faid
Church; the firft point in this cafe was, whether the Prefcriprion
were good and the Chief Jujlice faid , that ii is contrary to com-
mon right, that they who have a Chapel of Eafe in a Village
fliould be difcharged of repairing the Mother-Church \ and it may Hill.ipJac.B,.
be that the Church being built with Stone, it may not need any R- Rot. 922.
Reparation within the memory of man , and yet that doth not ^^^^^'' yerf.
difcharge them without fome fpecial caufe of difcharge /hewed. wM^rX
The fecond point was the taking away of an Objedion, as they Rep.
faid, vid. That a Prefer iption which is incident to Ecclefiaftical
things, iliall be tried in the Ecclefiaftical Court, and fo that Ob-
jection removed, and commonly the Church-wardens are chofen
in the Ecclefiaftical Court, yet the Lord of a Manour may pre-
fcribe for that, and then it fhall not be tried in the Ecclefiaftical
Court, although it be a Prefcription of what appertains to a Spi-
ritual thing.
(34.) Note^ that in the cafe of Church- wardens, the Chief Jnftice\\\\\.2o]zcB^
faid, That for the repairing the Fabrick of the Church the charge is R- church-
real, and charges the Land and not the Perfon \ but for the Orna- ^.^-"^^^.//v
ments of the Church it is perfongl, and there if a man be not an In- |.fp' '' ^
habitant within the Parifli, he is not chargeable in refped of his
Land, for fuch Tax doth charge the goods onely. And to this
Chamberlain Juftice agreed, and none denied it \ but where there is
a Farmer of the Land, there the Farmer alone ftiall not be charged,
for it is not reafon that a'poor Husbandman, who pays Rent for his
Land, and perhaps to the utmoft value, fiiouid build Churches-;
but it may be unknown to the Parifhioner and the ChUrch- wardens
who hath the Fee in reverfion, and therefore they may impole the
whok Tax on the Farmer, andlic by way of Aofwer may alledge
in A/e Ecclefiaftical Court that he is but the Fsimer, and thereup-
©ri the Tax fhall bp divided between him and his Landlord , ac-
• cording,
154 Of Churches, Chape Is,
cording to the Rate which the Land is worth more than the Rent,
and on the Landlord according to the quantity of the Rent, iquod
ejuare, for in Jeoff'rie*s Cafe 5 Coke it is refoivcd , that the Farmer
alone is chargeable, and that a Confultation was granted, but not
for that reafon, but for that the Reverfioner had pleaded an infuf-
ficient plea in the Ecclefiaftical Court, viz^. That he was not an In-
habitant within the Parifh , which is not a good plea, as alfo for
the great delay which he had ufed , "having made or brought two
Appeals, and after a Prohibition, and fo had put the Parifh to 60/.
charge for the recovery of 6/. and for that reafon chiefly, and not
on the matter in Law was the Confultatio-n granted.
Cropar. 2. (ssO In Frances zndi Ley s Cafe, it was Kefolved by the Juftices,
that Coats of Arms placed in Windows, or a Monument placed
in the Church or Church- yard, cannot be beaten down or defaced
by the Parfon , Ordinary, Church-wardens , or any other : And if
they be, the Heir by defcent interefled in the Coat, &c. may have
an Adtion of Trefpafs.
-Mich. iSJac. (;6.) In an Adion upon the Cafe, D. fliewed he was feized of a
£.R. D4wne>'Mefliiage and Land in P. to the fame belonging, and in the Parilh
andDeesCa.Q^ p^ time whereof &c. and yet is a Chapel in the North part of
ro.par. 2. ^^^ Chancel, called the ParforPs Chancel , and the PlaintiiF and all
thofe, &c. have ufed to fuftain and repair the faid Chancel , and
have ufed for him and his Family to fit in Seats of the faid Chancel,
and to bury there the perfons dying in the faid Mefluage, and that
Seats in a none Other during all the faid time, &c. without their Licenfe,
Chapel. have ufed to fit there, or to be buried there, and that the Defen-
dants Pmmi^orum non ignari^ malitiofe impediverunt him to enter,
and fit in the faid Seat. The Defendant faid, that the Earl of N.
was feized of the Honour of F. and the faid Chapel was parcel of
the faid Honour, and that the Defendants being Servants of the faid
Earl, and refident within the faid Honour, did divers times in the
time of the divine Service fit in the Seats of the faid Chancel, by
the command of the faid Earl ^ upon which it was demurred : Ex-
ceptions were taken to the Declaration, becaufe he prefcribes to
have a Liberty appertaining to his Houfe, and doth not fhew it is
an Ancient Houfe. And (2.) That the Allegation of the diflur-
bance was ill, being general, without alledging a fpecial Diftur-
bance, and how he was difturbed. Refohed^ That when it is fup-
pofed he is feized in Fee of a Capital MefTuage, and time, &c. it
is there included, that it is an ancient Mefluage, and fo he might
have fuch a privilege •, and for the fecond, it is fufficient to alledge
a general difturbance, as is ufual in the cale of a Fair or Marke^.
(37.) D. was
and Cfmrch-yards. 155
(37.) V. was indidted upon the Statute of 5 £. 6. for ftriking in Pafc sgEliz.
PanPs Church- yard j he pleaded that he was by the Queen's Letters ^.'.^: ^''
Patents created Garter King of Arms, and demanded Judgment crorp/i.
becaufe he was not fo named : It was the opinion of the Court, that
becaufe it was a parcel of his Dignity and not of his Office onely, .
and becaufe the Patent is, Creamui^ coronamus & nomen impnimui tUclfych.
de Garter Rex Heraldorum, that therefore in all Suits brought z-yard.
gainfl him ^ he ought to be named by this name ^ and thereupon he
was difcharged of the Indi::'^ment. And in Penhallos Cafe who was Penhamcs.
indided upon the fame Statute, for drawing of Dagger in the ^""o* ^^i^'
Church of B. againft J. S. and doth not fay, with intent to ftrike
him ; for which caufe the Judgment was quafhed. Likewife in
ChlUs Cafe, who was indidled for ftriking in the Church-yard;C6iW'sCarc,
and it was afud generalem Seffiontm Pads tent, apnd Blandford^ and it^'^°*i^^^*
was not faid [jn Comitatn fr^diElo'} for which reafon the party was
difcharged, though the County was in the Margin.
(38.) In Pyms Cafe before-mentioned^ Corven did libel in the ^'"'^'l^'sCafe,
Ecclefiaftical Court againft Pyw for a Seat in a Church in Devott'^°'^^^'^°'
p)ire-j And Pym^ by Serjeant Hutton^y moved for a Prohibition upon
this Reafon, that himfelf is feized of a Houfe in the faid Parifli ; ^^^^•'^^^^^'^f
and that he and all whofe Eftate he hath in the Houfe, have had ^^^ the church..
Seat in an Ifle of the Church : And it was Refolved by the Court, v
That if a Lord of a Manour , or other perfon , who hath his
Houfe and Land in the Parifli , time out of mind, and had a Seac
in an Ifle of the fame Church i fo that the Ifle is proper to his Fa-
mily, and have maintained it at their charges ^ That if the Bifhop
would difpoflefs him, he fhall have a Prohibition : But for Seat in
the Body of a Church, if a queftion arifeth, it is to be decided by
the Ordinary, becaufe the Freehold is to the Parfon, and is com-
mon to all the Inhabitants. And it is to be prefuraed , that the
Ordinary who hath Cure of Souls, will take order in fuch cafes^
according to right and conveniency •, and with this agrees 8 H. 7.
12. And the Chief Juftice, Dame ^^*■cJ(^ her Cafe, 9//. 4. 14. which
was. The Lady brought a Bill in B. R. agaiuft a Parfon, ^uare tu-
nkam unam vocatam^ A Coat Armour and Pennons^ with her Husband
Sir Hugh Wick, his Arms and a Sword, in a Chapel where he was
buried j and the Parfon claimed them as Oblations : And it was
there held, that if one were to fit in the Chancel, and hath there
a place, his Carpet, Livery and Cufhion, the Parfon cannot claim
them as Oblations ; for that they were hanged there in honour
of the deceafed : The fame reafon of a Coat-Armour., &c. And
the Chief Juftice faid, the Lady might have a good Adion during
life ir/the cafe aforefaid , becaufe fhe caufed the things to be fee
up tlifre i and after her death the Heir fliall have his Adion, they
» I i being
1 5^ Of Churches, Chapels,
being in the naiure oiHeir^Looms which belong to the Heir. And
with this agree the Laws of other Nations. Bartho. Cajjana^ fo. 13.
Con 29 JS'Jo datur fi aliejuis ArrriA in diqm loco pofita deleat ant
abrafit ' &c. And in 2 1 £^. 3- 48. in the Bilhop of CArlijle's Cafe.
Note, That in Eafter-Term it was rcfolved in the Star-Chcimber, in
the cafe between Hnffey and K^therine Leyton, That if a man have
a Houfe in any Parilh, and that he and all thofe whofe Eftate he
hath have ufed ro have a certain Pew in the Church •, that it the
Ordinary will difplace him, he fliall have a Prohibition -but where
there is no fuch prefcription, the Ordinary will difpofe of com-
mon and vulgar Seats. ^M y. r^x, u 1
AChaveloj (39.) In the County of Dorfu there was a Mother-Church and
Eafetaxedby glfo a Chapel of Eafe within the fame Parilh •, they of the Mother-
the Mother- Qj^urch did r:.te and tax them of the Chapel of Eafe, towards
<:/;«rc/;/.rre- ^ ^^^^.^^^ of the Mother-Church , for the which, upon their
Cr refufal to pay the fame, being fued in the Ecclefi^.ftical Court they
prayed a Prohibition, and for caufe allcdged, that they themfelves
have ufed time out of mind, &c. to repair the Chapel at their own
proper coft, without having any contribution at ail from them of
the Mother-Church, and that they have been exempted from all
charges and reparations of the Mother-; hurch, and yet for their
refufal to pay this Tax, they were libelled againft in the Ecclefiaiti-
cal Court, and a Sentence there' pafled againft them^ they there-
Hill 7Tac B. fore prayed a Prohibition. By the opinion of the whole Court a
R.Bulftr/pi. Prohibition lieth not in this Cafe, in regard that this Prefcription
is merely Spiritual, and therefore a Prohibition denied pr Cu-
nam.
A Present. (40.) One was prefented ex officio in the Ecclefiaftical Court, for
;«e«reKOif.- the not frequenting of his Parilh-Church^ he there pleads Thar
cio, for mt f 1^15 vvas pot his Parilh Church, but that he had ufed to frequent
frequming ^^^^^^^ Parilh-Church, and to refort unto that : And becaufe they
Church in the Ecclefiaftical Court would not receive his Plea, the Court
Trin.pfacB. was moved for a Prohibition, for that by the Law, in the time ot
R.Bulftr.p.i. King// 3 £<:^. 3.and£^.4. they in the Ecclefiaftical Court have not
any power to intermeddle with the Precinft of PariOi-Churches,
neither are they there to judge, what fhall be fiid to be a man's Pa-
rilh-Church : And fo was the Opinion of the whole Court ^ and there-
fore by the Rule of the Court a Prohibition was granted.
Pafch.8 3ac. C41-) Touching the Reparations of the Church, and who were
B. R. Eumr. liable thereunto, this being a queftion coming m debate before the
P- *• Tudt^es : It was refolved by the whole Court , That for and to-
wards the Reparation of a Church, the Land of all, as well of Fo-
reigners there not inhabiting, as of all others, is liable theK^^nto,
and this is fo by the general cuftome of the place •, and this is fo he
r^ifed
and Church-yards. 157
raifed by a Rate impofed according to the value of the Land, and
that in the nature of a Fifteen^ and this is not merely in the Realty,
Williams and Telverton Juftrces, and Flemming Chief Juftice, Not
the Land, but the perfon of him who occupieth the Land is to be
charged. Telverton Juftice, A man is chargeable for Reparations
of a t hurch by reafon of the Land •, and for the Ornaments in the
Church, by reafon of his coming to Church. Williams Juftice and
Flemming Chief Juftice, if the perfon have Land there he is charge-
able for both, whether he come to Church or not, for that he may
come to Church if he pleafe.
(42.) In a Prohibition the Cafe was this: The Defendant ^{^^eAtsha
Libel before the Bifliop of London in the Confiftory Court, for a ^*'"'^*-
Seat in the Church •, Sentence there paifed againft the Defendant,
whereupon he appealed to the Arches. The Court was moved for Mich. njac.
■/^ a Prohibition, in regard the Title to the Seat or Pew was grounded ^-.R* ^^^va-
upon a Prefcription : The Court anfwcred, &c. As for the Title we |^'"^^'^^^'^
are not here to meddle with it, this being for a Seat in the Church. ^^ ^^^' ^'
Haughton juftice, This difpofition of Pews in the Church belongs
of right to the order and difcretion of the Ordinary: and to this
purpofe is the cafe of 8 H. 7. /. 1 2. and Sir William HalCs cafe againft
Ellis, Doderidge Juftice , I moved this cafe in the Court of C. B.
and it was for a Seat in the Church : An Adlion there brought for
Difturbance, and I there cited Hall*^ Cafe •, and 9 E. 4. fo. 14. The
Cafe of the Grave- ftone and Coat- Armour : for the taking of which
an Adion of Trefpafs lies at the Common Law, and therefore by
the fame reafon an Adion of Trefpafs ftiould lie for fuch a diftur-
bance in a Seat of a Church •, but there the Judges did all of them
fay, That they would not meddle with the deciding of fuch Contro-
verfies for Seats in the Church, but would leave the fame to them to
whom more properly they belonged. Cro^e Juftice, //-i/Z's cafe was
this, where a man did build an entire lile in the Church, and was at
continual charge to repair it •., if he be difturbed in the ufe of this,
he Ihall for this Difturbance have his remedy at the Common Law ^
and fo it hath been adjudged ^ But the Judges all faid. We are not
here to meddle with Seats in the Church. Doderidge Juftice, This
Appeal here is like unto a Writ of Errour at the Common Law -,
but it doth differ in this. By the Appeal the firft Judgment or Sen-
tence is fufpended, but after a Writ of Errour brought, the firft judg-
ment ftill remains until it be reverfed. Coke chief Juftice, It was
Pym^s Cafe in the Common Bench^ and 8 //. v./o. 12. that the Ecclefl-
aftical Court hath jurifdidion and power to difpofe of Pews and
Seats in the Church •, But if there be an Ille built by a Gentleman,
or J;^ a Nobleman, and he hath ufed to bury there, and there hath
hisEnfign of Honour, as a Grave- ftone. Coat- Armor, or the like,
-» li 2 which
158 Of Churches, Chapels, &CC.
which belongs not to the Parfon-, if he take them the Heir may
well have an Adion of Trefpafs : otherwife it is, where the fame is
repaired at the common charge of the Parifh, there they have the
difpofing of them : Ellis and Hall\ Cafe reraembred, a Kentijh Cafe,
there the Seat was repaired by him, and was belonging to his Capi-
tal Mefluage by prefcription, and fo triable at the Common Law :
And fo where the Cafe is Special, that the party doth wholly and
folely repair the fame, in fuch a cafe, if a Suit be there concerning
fuch a Seat, a Prohibition well lieth, but not otherwife : But if a
Nobleman comes to dwell in the Countrey, he is now within the
fole order and difpofe of the Ordinary for his Pew and Seat in the
Church ^ and upon the former difference was Pyw's cafe adjudged
in the C. B. in this principal Cafe, a Prohibition was denied by the
whole Court.
CHAP,
I5P
CHAP. XIII.
Of Church-wardens, Queftmen and Sidemen.
1. What fnch are in conftrnGiott of Law \ how the choice of them is
to he made^ and wherein the Office doth confifi.
2. What ABions at Law may lie for or againft them.
3. Whether Actons lie for the new Church wardens in Trefpafs done
in time of their Predeceffonrs.
4. Certain things appertaining to the Church within the charge and.
office of Church- war dens to provide and preferve.
5. Cafes in Law touching the EleBion of Church- war dens.
6. What Sidemen or Queftmen are.^ and their duty.
7. AUion at Law again fi '' hitrchwardens ^ touching Diftrefs taken
by them for money for relief of the JPoor.
8. A Churchwarden refufing to takfi the Oath of Enquiry on the 39
Articles.^ A^ion thereon.
9 What remedy in cafe the Archdeacon refufes to Sw£4r the Church-
wardens eleSl.
10. The InjunBions of King Ed. 6. touching all Marriages^ Bap-
tifms and Burials to be Regifired in the prefence of the Church-
wardens.
11. Whether the Releafe of one Church-warden^ Jhall be a Bar to hit
Companion^ in an Ecclefiafiical Suit commenced by them both f
12. Prohibition., where Church- wardens have pretended a Cujlome tff
chufe the Parifh-Clerkc
13. The like upon a Prefentment by Church-wardens againfi one^ in
matter more proper for a Leet , than the Ecclefiafiical Court .^ ta
take cognizjince of.
14. The prevalency of Cuftome againfl a Canon, in choice of a
Church-war den.^ in reference to a Vicar and the Parifljioners .
15. // que ft ion be y whether Lands next adjoyning unto a Church-
yard jhall be charged with the repairs of the Fences thereof^ and
Cuftome pleaded for it., in what Court cognizable.
\6. In Ailion of Account by Parijhioners again ft Church-wardens ^
by whom a Releafe of Cofts is pleaded., but di fallowed in the Ecckfi^
aftical Court '., whether prohibition lies in that cafe ?
17. Whether church wardens are a Corporation qualified for Lands m
well as Goods to the ufe of the Church ?
iS.The Church-wardens difpofal of Goods belonging to the Church.^
mth9Ht the ajfem of the Sidemen or Veftry, void,
» ip. Church'
I ^o Of Church'XPardens
■'i
'I
19. Church-wardens not Ecclcpafiical Officers, but Temporal, Employ-
ed in the Eccleftafiicd Affairs : Before whom are they to account ?
20. Whether Church- war dens may have AUionfor Trefpafsdone to the
Church in their PredecejTour''s time ?
21. Whether the Parijhioner shy force of a Cxx^omt^ or the Par [on by
virtue of a Canon, (h<ill chufe the Church-warden •, and whether
Prohibition lies in that cafe.
22. Whether Churchwardens^ Oi a Corporation may prefcribt to take
Lands to them and their Succeffours, to the ufe of the Church.
rdecommiyVe\{ I.) f^ffnych' wardens ^ ov Guardiani Eccleft£ ^ are certain Offi-
Ecckftdt v_y cers Parochial, annually eleded or chofen by and with
Guardiani. j-j^g confent of the Minifter and a feled number of the chief Pariihi^
oners, according to the cuftome of the place, to look to the Church
and Church-yard , and to take care of the concernments thereof,
and of fuch things as appertain thereto ^ as alfo to obferve and have
an infpedion into the Behaviour, Lives and Converfation of their
Pariftioners, touching fuch faults and diforders as are within the
thuYch-r»ar- cognizance and cenfure of the Ecclefiaftical Jurifdi(fl;ion, Thefe
dens, ifelec- Officers are a kind of Corporation, enabled to fueand be fued for
tedbyVeftryy any matters or things belonging to the Church or Poor of their
where good Parifh-, and have as their Afllftants, certain Sidemen or Queftmen,
mcTlff " wlio according to the cuftome of the Parilh are yearly likewife cho-
Lands.Wd. fen, to affifl the Church-wardens in the Enquiry and prefenting
St. Saviours fuch offenders to the Ordinary as are within the Ecclefiaftical cog-
in 5o«^A- tiizance and cenfure aforefaid-, for which they afre not to be fued
Tamkep ^^ troubled at the Law by any fuch Offenders fo prefented as afore-
•Qn.iis. faid ^^ nor are they obliged to prefent oftncr than twice a year,
except it be at the Biftiop's Vifitation : yet they may prefent as oft
^ Can. 1 16. as they (hall think meet, if good occafion fhall fo require ^ •, but they
may not (on pein of being proceeded againft by their Ordinaries,
as in cafes of wilfuU Perjury in Courts Ecclefiaftical) willingly and
wittingly omit to prefent fuch publick Crimes as they knew to have
been committed , or could not be ignorant that there was then a
« Can. 117. publick fame thereof ^ Moreover, the Old Church- wardens are
to make their Prefentments before the New be fworn \ till which
time the Office of the old continues j the ufual time for the New
Church- wardens to enter upon their Office is the firft week after
Eajier, or fom^ week following, according to the diredion of the
Ordinary^ before which, the Old Church-wardens fhall exhibit
the Prefentments of fuch enormities as happened in their Parifh
fmce their laft Prefentments, and fhall not be fuffcred to tranfmit
« Can. 118. or pafs over the fame to thofe that are newly chofen <^. \^y the
Ninetieth Canon the choice of Church-wardens, Queftmen, Side-
smen,
and Side men, li
men, or Affiftants is to be made yearly in Eafler week, and that
by the joynt confent of the Minifter and the Parifhioners, if it may
be-, otherwife, the Minifter to chufe one, and the Parifliioners-
another^ who at their years end, or within a month next after,
ftiall in the prefence of the Minifter and the PariOiioners make a
juft Account of what'they have received and disburfed for the ufe
of the Church, and Ihall deliver over what remains in their hands
belonging to the Church , unto the next Church-wardens by Bill
Indented ^ 'ean.89.
(2.) One brought Adlion on the Cafe againft '^hurch- wardens,
for a falfe and malidous prefentmentof him in the Spiritual Court,
and found for the Defendants ; They prayed double Cofts on the
StatHte of I Jac. But Joms^ Crook and Berkley , Juftices, denied it,
for that the Statute doth not extend to Church-wardens for things
of their Office in Eccleliaftical Caufes ^. They have their A<^tion ( Mich. 8.
of Trefpafs at the Common Law for fuch things taken away out of Car.B R.Ca.
the Church, as belonged to the Parilhioners in reference to the ^^'^^^^^J
Church g. And the Releafe of one of the Church-wardens, i^ alm.jone7
no Bar in Law to the other ^ If one take away the Chalice or Rep.
Surplice out of the Church, Adion of Trefpafs lieth againft him 8 1 1 H. 4.
at Common Law, and not in the Ecclefialtical Court'. So if J""•''{'^•
one lay violent hands on an Ecclefiaftical peiion, an Adion lies i"^ iakiclic
the Ecclefiaftical Court, but he Ihall not there fue for damages k. Ron.Rep.'
If the Organs, OX Parifh-Bible or the like, be taken away out of «> i4jac.B.
the Church , the 'Adion lies at the Common" Law and not in t-he R- j." ^'^'tam^
Spiritual Court for the fame, for the Church-wardens may baveVpJ;. pq;/^'
their Adion at Common Law in that cafe.J : But if the Parfon Mich! i^jac
take away out of the Church the Scutcheon or Banner of fome per- B. R. Bella-
Ion deceafed, his Widow ( if fhe did put It there, and it bfe-t-ak^h '^^f^^^^'
away in her life time) may have her Aition <?!f -TrefpafsiM Cdm^ , iJ^^^P'
mon Law, or after her deceafe the Heir may liaVe the larae ^di- j l5jft;g„r^.
on™. iaiAcjdi ot/^/e'cCafe.
■ -'V--^ \^:^'.0 It is Felony ■
and Sacrilege tofieal away the Varifli- Bible out of the Church\'and fuabh. at Common Law. " Co. 9 Ecf,
4, &Tria. 12 Jac. BucklaU^Q^k- RoH- -^'f S .-^-q -Iv •
. ^ , . [(i ovn^n ■-> '-■ .:!
(3.) Trefpafs brought by the Church-war deiis of F, arid declared
That the Defendant took a Bell out of the f-nid Church, and that
the Trefpafs was done 20 Eliz,. It was found for the Plaintiff. It
was moved in Arreft of judgment, that it appears by the Declara-
tion, that the Trefpafs was done in the time of their Predeceflburs,
of which the Succeflbur cannot have Adion : and J^io perfonalis
morj/ir cum perfom^ Vid. 19 H.6. 66. But the old Church- wardens
iball have the AdtoHi Oi^e contrary, and that the prefent Cburcii-
• wardens
I gz Of Clnirch'wardem
■m
wardens fliall have the Aftion, and that in refpedt of their Office,
which the Court granted. And by Gawdy^ Church-wardens are a
Corporation by the Common Law, Vid. 12 //.y. 28. by Frowicf^^
That the new Church-wardens fliali have an Adion upon fuch a
Trefpafs done to their PredeccfTours ^ Contrary by Taxley. Vid. by
Newton and Pajion^ that the Executours of the Guardian in whole
" Hill. 51 E- time the Trefpafs was done, fhall have Trefpafs ".
liz. c. B. The (4.) It is the duty of Church- wardens not onely to take care of the
church-war- concernments of the Church , and to prefent Diforders, as afore-
therftonev ^^^^t ^"^ ^^^° ^° provide Bread and Wine againft the Communion,
Cafe. Leon, the Bible of the largeft Volume, the Book of Common Prayer, a
Rep. decent Pulpit, a Cheft for Alms, Materials for repairing the Church
and fencing the Church-yard, and the like, all at the Parilh-charge,
and fhall, what in them lies, prevent the prophanation of Churches
by any ufage thereof contrary to the Canons. It was agreed by the
Court in ^o/'^rt's Cafe, that a Tax for the Church cannot be made
by the Church- wardens onely. Hetley'*s Rep,
(5.) In Butt*^ Cafe, Moore Serjeant moved at Court for a Prohi-
bition, becaufe where the cuftome of the Parifli or V^illage was, that
the Parifhioners have ufed to eled two Church-wardens : and at the
end of the year, to difcharge one and eled another in his room, and
fo alternis vicibm, &c. By the New Canon now the Parfon hath the
Eledion of one, and the Parifh of the other ^ and that he that was
eleded by the Parifliioners, was difcharged by the Ordinary at his
Vifitation v and for that he prayed a Prohibition.\ii> allocat. as a thing
iifual and of courfe. Forocherwife (by Hubbard) the Parfon might
°s««'sCafe. have all the Authority of his Church and Parifh". The like Cafe
Noy Rep. to this we have elfewhere reported, viz.. The Parfon and Church-
wardens in London by the Cuftome are a Corporation, and the Pa-
rifhioners time out of mind, &c. have ufed at a certain day in the
^Ytdry^rm'^ V'ejiry to eled Church- wardens-, they eled A. and prefent him
Veftments, to the Archdeacon who refufes J. and forbids him to exercife the
^*A ^'^^7 , OiHce of a Church- warden, becaufe the Parfon pretended, that by
mZlntsare^^^ new Canon the Election of Church- warden belonged to him to
kept.ThUit difpofe, &c. and exercife the Office of Church- warden. And^. i5
Mfedoncein fued ex Officio in the High Commilljon Court, amongft other things
tAe B/We,<inflf touching that : A. prays a Prohibition becaufe the Canon does not
^tonce, 2 fgj^g gyygy ji^g Cuftome. Alfo it would be very mifchievous, if the
Jhere%e^' P^rfon fhould eled whom he pleafe to be Church- warden. And the
Bailites k?pt Parfon and Church- wardens being a Corporation, then they may
'their Veft- <lifpofe of the Goods and Land of the Parifh as they pleafe. Coke
ments. Chief Juftice faid, that a Convocation hath power to make Con-
ftitutions for Ecclefiaftical Things or Perfons, 20 H. 6. 1 4. 2y.£. 4.
46. But they ought to be according to the Law and Cuftome oi' the
Rejlm.
and oidemen, 1^5
Realm. And they cannot make Church- wardens that were Eligible,
to be Donative without Ad of Parliament; and the Canon is to be
intended where the Parfon had nomination of a Chnrch-w^rden be^
fore the making of the Canon. And now Rule was given for a
Prohibition, if caufe be not fhewn to the contrary, &c. ex motione
Serjeant Fofier P. ' p Mic. 4 ]ic.
(6 ) As touching Sidemen^ otherwife called QHefimtn^ they are;^-^-%Rcp.
onely fuchas are annually chofen, according to the cuftonie of every iplfgfafj^^''
Parifh to aflift the Church-wardens in the enquiry and prefenting Teftes'^Syno'
fuch Offenders to the Ordinary, as upon fuch Prefentments are pro- diksandent-
fecuted and punifhable in the Eccleliaftical Court. ^j>Ji}led Sy-
(7.) In an A(n:ion of Trefpafsagainft the Church- wardens where, J'°^*''"^°'
by the Statute of 45 Eliz^.cap. 2. if for a diftrefs taken by them, for yc^S now
money for the relief of the Poor, Trefpafs he brought againft them, side-men.
and Verdid pafs for them, the Defendants (hall recover treble Da-
mages with their cofts-, j^fid that to be ajfejly &C. by the fame Jury^
or by Writ of encjuiry of Damages^ it was Refolved (i. i That the
cofts fhall not be trebled, but onely the Damages. (2 ) That the
treble Damages are well alTcft by the Jury, although that it be
done not by the Court. Becaufe the words are {by the fame Jury to
beapfl^ and not Damages to be trebled by them ^. 'Okel^vcrC.
(8.) Upon an Habeas Corpus the Cafe was returned to be. That H. ^^^f^- %'«
being Church- warden, refufed to take the Oath of Enquiry of the ^^P'
39 Articles touching Eccleliaftical matters. And the warrant of the
Commitment of the High Commiffioners was to retain him , and
until we f:all give order for his delivery. By the Court, &c. Vmil we
that is, All we, 12 Ed. ^. ^. a. iH.-j qa. that is not good ^ for if
then any of them dies, or be removed, The party fliall never be de-
livered by that means : But it ought to be. Until he (hall be lawful-
ly delivered. But notwithftanding the Church-warden was not out
upon Bail, becaufe now alfo he refufed to take that Oath ; But with
a So far forth as the Articles do agree with the Law of God and the Land,
Note, that fuch fubfcription or confent to the Articles 13 EUz..
by a Parfon is not good. As it was Adjudged in '^iy& ^^Eliz,
B.R. C/^ri^ againft Smithfield-^ But afterwards the Church- warden
was delivered by the High CommifliOners ^. ^ Whamn't
(9.) if the Pari(hioners have time out of mind ufed to chufeCafe. Ays
two Church-wardens yearly, and to prefent them to the Archdea- ^^P*
con to be fworn, and he have ufed to fwear them, and upon fuch
eledion and prefentation to him to be fworn , he (hall refufe to
fwear them, a Writ may ifllie out of the King's Bench, dire:.ed to
the Archdeacon, commanding him to fwear them, Mich. i$Jac.
F>. R. fuch Writ was granted for the Church wardens of Sutton Va-
lence ir/kent ; for although there was a Canon made prima Jac to
K k the
I ^4 Of Church- wardens.
the contrary, yet that cannot take away the cuftorae, Tr. 15 Car.
B, R. The like Writ was granted for the Church- wardens of the
Parifhes of Ethelborough and St. Thomas ^poflles in London, after
divers motions , and upon hearing of the Council on both fides ,
Pafch. 4 Car. B. R- Rot. 420. between Draper and Stone. The like
e Roll. Abr. Writ was granted for the Church- wardens ofHolberton in Devon c,
verb, l^rerog. If one be chofen Church-warden, and the Official of the Bifhop re-
lic. L.. f^j^Q J.Q adminifter his Oath to him, he (hall have a fpecial Writ di-
reded to the Official, commanding him to give him his Oath, Tr.
ijJac.B. R. Bifhop's Cafe. Roll. Rep. Note., That an Attorney
cannot be a Church-warden : if he be chofen , and refufe, and be
fued for fuch a Refufal in the Ecclefiaftical Court, he may have a
Prohibition. Pafch. 14 Car. 1. B.R. in WHfons Cafe, & Trin. 15
Car. I. B.R. Barker'^s C^k. ^oiZ's Cafes, 2 par.fo.2j1.
(10.) By the Injundions of King Ed. 6. j^n. 1547. to all the
Clergy as well as Laity of this Realm, it is required. That the Par-
fon, Vicar or Curate, and Parifhioners of every Parilh within this
Realm , (hall in their Churches and Chapels keep one Book or
^egifter, wherein they (hall write the day and year of every Wed-
ding , Chriftning and Burial , made within their Pari(h, &c. and
therein (hall write every Perfons Name that (hall be fo Wedded ,
Ghriftned or Buried. And for the fafe keeping the faid Book, the
Parifh (hall be bound to provide of their common Charges , one
fure Coffer, with two Locks and Keys, whereof the one to remain
with the Parfon, Vicar or Curate, and the other with the Wardens
of every Parifli Church or Chapel, wherein the faid Book fhall be
laid up : which Book they (hall every Sunday take forth, and in the
prefence of the faid Wardens, or one of them, write or record in
the fame, all the Weddings, Chriftnings and Burials made the
whole Week before-, and that done, to lay up the Book in the faid
J Coffer, as before And for every time that the fame fhall be omit-
spJrr'ow's ^^^-^ the pnrty that (hall be in the fault thereof, fhall forfeit to the
Colka. &c. faid Church three fliillings four pence, to be imployed to the Poor
p. 5- mens Box of that Pariffi ^ .
Hi!!. 7 jac. ( I ^ •) ^ ^'^^^ taxed by the Pari(h for Reparation of the Church
J609. B. R. was fued for the Tax by the Church-wardens in the Ecclefiaftical
Barnn\C3. Court : ^Depending this Suit one of the Church wardens releafed to
Brovvnl.Rep.j.j^^ Defendant all Adions, Suits and Demands •, the other Church-
^^' *' warden proceeded in the Profecution of the Suit, and upon this the
Defendant procured a Prohibition^ upon which matter fhewed
therein was Demurr joined. Davenport moved for a Confultation.
The Queftion was, where two Church-wardens fue in the Ecclefi-
aftical Court for a Tax and oneof them releafe, whether that Re-
Ijiafe ftiall barr his Companion or not? It feemed to him^- that
u this.
and Sidemen. i ^ t-
this Releafe fhall not be any Barr to his Companion , or impedi-
ment to fue; for he faid, That Church-wardens are not parties in«
tcrefled in the Goods of the Church , but are a fpccial Corporation
\ for the Benefit of the Churchy for which he cited the Cafe in8 £.
4. 6. The Church-wardens brought Trefpafs for the Goods of the
Church taken out of their pofTeflion, and they counted ad damnum
Parochiamrum^ and not to their proper damage : and the 1 1 //. 4.
12. 12 H. 7. 27. 43 H. 7. 9. where it is faid expreily. That the
Wardens of a Church are a Corporation onely for the benefit of
the Church, and not for the difadvantage thereof : but this Releafe
founds to the difadvantage of the Church, and therefore feems to
be no Bar : Alfo this Corporation confifts of two perfons, and the
Releafe of one is nothing worth 3 for he was but one Corpfe, and
the moiety of the Corpfe could not releafe ^ and for thefe Reafons
he prayed a Confultation. Yelvertm to the contrary, and he took
a difi^erence and faid, that he agreed , that if the Wardens of the
Church have once poiTefiion of the Church, theie in Adion of Tre-
fpafs brought for thefe Goods one Warden cannot releafe : But this
Tax for which they fue is a thing merely in Adion, of which they
have not any pofleflion, and there he cannot Sue alone ^ and there-
fore this Releafe ftiall barr his Companion. The Court interrup-
ted him and faid. That clearly Confultation fhall be granted, Flc~
min^Chkf Juftice, we have not need to difpute this Releafe, whe^
ther it be good or not ? and there is a difference where Suit is com-
menced before us, as if Church-wardens brought Trefpafs here for
Goods of the Church taken, and one Releafe, then we might dif-
pute whether this Releafe were good or not ; but when the mat-
ter is originally begun before them in the Ecclefiaftical Court, and
there is the proper place to fue for this Tax, and not any where
elfe, we have nothing to doe with this Releafe^ for which rea-
fon by the whole Court a Confultation was granted. In an Acftion in
the Ecclefiaftical Court by two Church-wardens, if the Defendant
plead the Releafe of one of them, that fhall be tried there, and no
Prohibition fliall be granted. P^id. Roll. uibr. verb. Prohibition^ pag,
306. ««. 3.
(n.) If the Church-wardens of a Parifh have ufed time out ofMic.22 Jac.
mind, &c, to chufe the Parifh- Clerk, and Suit be in the Ecclefiafti- ^-R. Between
cal Court to remove him, and to put in one of the Parfon's choice Wa'po^lc ^
Prohibition lies, as in WalpoofsCBk; but there the Prohibicion\/°t/e'i5'y
was granted by the confent of parties, to try the Cuftome. The Tho. Apoft/
like Prohibition was granted between Brown and Crawjlmwe for ^onci- intra-
White Chapel Parifh. And the like granted between Beaumont and V'"" "'^'' ^'^'
Weftte/foi the Pai^ifh of St. Cuthberts in WelU. J'"' ^^'"^^'^^
* Kk 2 (13.) If
1 66 Of Chiirch-vpardevs
p. 19 Jac. B. (13.) If a Prefentment be made by the ChHrch-wardens of a Pa-
^•[^°^,^^^7^ rifhin theEcclefian-ical Court, That J. S. one of the Parilhioners
Smith and isa Railer and Sower of Difcord among his Neighbours, a Prohibi-
F^nne/'sCafe. tion lies^ for that belongs to the Leet^ and not to that Court, un-
Hob. Rep. kfs it were in the Church or fuch like place.
p^'^t^'rr ^^"^'^ Where the Parilhioners of a Parilh have ufed time out of
TheFario'm- ^*"^> ^^* ^^ ^^"^^ *^"^ Church- warden and the Vicar another, and
werxo/Roi-' afterwards a Canon is made, that the Vicar Ihall chufe both, and
vendon in fo he doth accordingly, and the Parilhioners Ihall chufe one accor-
K^"f- ^(^' ding to the Cuftome, and the Ordinary difallow him, and confirm
T c B ^^^ ^^^ chofen by the Vicar, a Prohibition hath been granted in
V^' between ' ^^^^ ^^^^' ^0 likewife a Prohibition was granted againlt the Church-
Shirley and wardens, chofen by the Parfon of St. Magntu near London- Bridge by
Brown. force of the Canon, on a furmife, 1 hat the Parifli had a cuftome to
5°^"^' ^00 ^^^Oi both Church- wardens. The like alfo was granted for Abchurch
P. ACar.B.R. • r 1 "
Rot. 420. "^ London.
DMferaiid (iS ) Where the Church- wardens fued in the Ecclefiaftical Court
Stone. J. S. fuppofing in their Libei, that he and all thofe whofe Eftate he
Mic. '4Car. j^gf^ in certain Land next adjoyning to the Church-yard, have ufed
cimch'Jar- ^'^^ °"^ °^ mind, &c. to repair the fences of the Church- yard next
ikriiofchy- adjoyning to the faid Land : In this cafe it was faid, that a Prohibi-
don and tion lies, and that it ought to be tried at Common Law, for that it
Duncombe. js 3 charge to the Temporal Inheritance.
pag 28 .'^' (*^- ^^ theParifhionersfue the Church-wardens of the Parilh in
the Ecclefiaftical Court to make an Account, and in that Suit cofts
of Suits are taxed for the Parilhioners againft the Church-wardens,
and after the Church- wardens pay the cofts to one of the Parilhio-
ners, and thereupon he that receives the cofts gives a Releafe to the
Church-wardens for the faid cofts, and that Releafe is after pleaded
by the Church- wardens againft other Parilhioners in the Ecclefiafti-
cal Court, and they there difallow it:, yet no Prohibition granted,
Mic, 15 Car. for that they have cognizance of the Original, viz.. the cofts, they
Arme/^fe*^ Hiall have cognizance alfo what Ihall be a fufficieni payment thereof.
Gfiodm per -^"^ ^^ ^^'^'^^ ^^^^ ^ Prohibition was denied,.
Cur. (17) The Church-wardens cannot prefcribe to have Lands to
P3fc.g?El.B. them and their Succeflburs, for they are not any Corporation to
fe'^ftZf^ have Lands but for Goods for the ufe of the Church. And there-
^'^^ '"^' fore it feems at the Common Law, if a Feoffment be made to the
ufe of the Church-wardens of X>. it is a void ufe, for they have no
capacity of fuch purchafe.
^^LV.Me- (18.) The Church-wardens gift of Goods in their cuftody wkh-
thoid iiid out the ailent of the Sidemen or Vefiry^ is void. If a man take the
^'"d b^^^^' O'-^^wj out of the Church, the Church- wardens may have.A^io0or
X.W' ^ ^''' '^^^^P^^^ ^^r tjiem, for the Organs belong to the Parilhioneri, and
*' aoi
. and Sidemen. i6j
not to theparfon j therefore the Parfon cannot fue him in theEe- y^ju, ,2 1,^,
clefiaftical Court that takes them away. The Church- wardens by b. R.Vrc«ri
the aflent and agreement of the Parifliioners, may take a decayed- Adjudged. *
Bell, and deliverit to the Bell- Founder, and than by their agreement Mich.gv.^S.
he (hall have 4/. for the calling thereof, and retain it until the 4/. ^fjl^.l^^^
be paidj and that agreement of the Parifhioners (hall excule the«/"^t. Ad*
Church-wardens in a Writ oiJccvmt brought againft them by their judg'd!
Succeflburs Church- wardens ;, for the Parilhioners are a C orporation
to difpofe of fuch perfonal things as appertain to the Church. .
(19.) B. Church-warden of the Church of S. was fued in the Ec-
defiaftical Court to account for the Monies which he had received
and expended by reafon of his Office the laft year paft, andfor ob*
taining a Prohibition he fuggefted, that per le^emterray he ought to
account before the Minifter of his Pariih, the fucceeding Church-
wardens, and a great number of the Parifhioners, and that he had
accounted accordingly, Hendtn^ the Ecclefiallical Judge ex Officio^
may .compell him to account before him : I agree that Church- war-
dens for all perfonal things concerning the Church are a Corporati^ ^^-j ,^13^,2.
on8£. 4. 6. and for Goods of the Church they may have Adlion, R.g;y/j(,;,'sCai
and count to the damage of the Parifh, and the fucceeding Church- iioZ/'iRtp.
warden may have Avflion againft his PredecefTour as againft a ftran-
ger, but not as againft an Officer for what he did rat wne Officii, and
then if he (hall not be enforced to account in the Ecclefiaftical Court,
then there will be no remedy againft him, md. 11 H. 7^. (2.) He is
an Ecclefiaftical Officer, and therefore proper to the Ecclefiaftical
Judge to have Jurifdi(ftion of his account^ And a Qerk of a Pa-
rifli may fue in the Ecclefiaftical Court for his Fees, which are called
Largitiones C haritativa . vid. Regi(i. f. '^1. for he \% cjuodammodo 2iXi
Officer Spiritual, 2 i £. 4. 47. But notwithftanding this, a Prohi-
bition was granted: And Monntague Chief Juftice faid. That a
Church-warden is not an Ecclefiaftical Officer, but Temporal em-
ployed in Ecclefiaftical bufinefs; ^&re^ Whether in that cafe the
Minifter may require him to render an account? and if he refufe,
Whether the Ecclefiaftical Judge may compell him to account ?
(20.) In Trcfpafs by Church- wardens, for taking a Bell o\it oi Hadmamwi
the Church in the time of their Predecefiburs, it was adjudg'd, That Ringmod's
the Adion did lie , whereas it was declared ad damriHm ipforn/n , ^^^^' ^^^'
which ftiall be fuppofed ad damnum ParochianorHm. ^' '*
(21.) The Parifliioners of the Pariffi of M-Hallowes in London^ Warm's Ca{.
did prefcribe to chufe their Church- wardens every year, and they Cro, par. 2^
chofe W- their Church-warden ; The Parlon by virtue of a late Ca-
non, that he ffiould have the Eledion, chofe C to be Church-warden,
and procured him to be fworn in the Ecclefiaftical Court i and a
Prohibition was prayed,, for that it being a fpecial cuftome the Ca-
* nons
1^8 Of Church-wardens^ &CQ,
nons cannot alter it, and if every Parfon might have Eleftion of
the Church-wardens without the aHent of the Parlfhioners, they
might be much prejudiced : And fo it was faid, That it had been
Adjudg'd, Pafch, 5 Jac. in the cafe of the Parifhioners of iValbrtoi
in London*
f'"*?'Vo ^^^'^ Although (ars aforefaid) the Law doth make Church-
jiaS Cafes, ^^^dens a kind of Corporation, and enables them by that Name to
pit. 1.^593. take moveable Goods and Chattels, and to fue and be fued at Law
concerning fuch Goods for the ufe and benefit of their Pari/h i yet
they cannot take an Eftate of Lands to them by Name of Church-
. wardens', nor can Church- wardens prefcribe to have Lands to them
and their Succeflburs,. for they are no Corporation to have Lands,
but for Goods of the Church onely.
CHAP.
\
C H A P. XIV.
Of Confolidationf cr Vnion of Churches,
1. Confolidation, ii?Wj whence fo called \ hy whomj and in v^hs^'
cafes it may be made.
2. The fever al kinds of Confolidation*
3 . The reafons and grounds thereof in the Law.
4. The Recjuifites of Law in order to a Confolidation.
5. How Confolidation is praBifed here with w, And how in France.
6. 77?^ divifion or diflinUion which the Canon Law makes of Confo-
lidation*
- ,,,;'...
( i.)/^Onfolidation is the uniting, combining or confoiidating of
V>/ two Churches of Benefices in one ». This cannot be • Broo. thi
done without the confent of the Bilhop, the Patron and the Incum- '^"^<>"'
bent. This word thus ufed in an Ecclefiafticar fenfe, takes its de- 57 H.8. cz^.
nomination from what the Civil Law intends by confolidating the
Intereft of PoiTeffion and Property together, which in that Law i&
called, Confolidatio ufusfrte^ns & froprietatis ^ As when a man ha-
ving the Ufufrudl of certain Lands by way of Rent, Devife or o-
therwife, doth then and at the fame time purchafe the Fee or In-
heritance thereof ^ hoc cafu Confolidatio fieri dicitnr. In ft it. de Vfn-
fru5t. §. 3 . So th-at in fuch Secular concerns, according to that Law,
it properly fignifies an uniting of the poflelljon, occupation or pro-
fit with the property of the thing fo prepofTefled ^ which is fome-
times called an Vnity of poffeffion , being a Joint- poiTeflion of two 37 H. 8. c.s?.
Rights in the fame Perfon by diftin^ and feveral Titles. By the Sta- ^ ^'^' ^- c- 9-
tute ofsiLf.S.c.ii, it was lawfull to make an Union or Confolida-^^" ^^^' ^'
lion of two Churches in one, whereof the value of the one was noL^' ^*
above; fix pounds in the King's Books of the Firft- Fruits , and not
abov^eonc mile diftant from the other. And by a late Statute of
17 Car. 2. cap. 3. it may be lawfull for the Biihop of the Diocefe,
Mayor, Bayliffs, &c. of any City or Town Corporate, and the Pa-
tron or Patrons, to unite two Churches or Chapels in any fuch Ci-
ty, Town or the Liberties thereof^ provided the Churches fo uni-
ted exceed not the annual value of an hundred pounds, unlefstheSc«»7Car.2.
Parifhioners defire otherwife. See the Statute at Lar^ge. ^' ^'
(2.) By this Confolidation or Union of Churches one of the
Benefices become void , yea extind in Law, Illud enim quod Alteri
unitur^ extingnitur^ neqne amplitu per fe vacare dicitur. DD. in c.
enm. /cuHiJfent, de Conftit. & Lndo. Qomex^, in Re.gd. CancelL Gall, der
.'■ -.'>.. Triem.
170 Of Conjolidation, or
Trien. fojfejf. ^. 8. Jo. Andr. ad Clemen, i. de Supplen. NegUg. Pralat.
Again, the Law in exprefs terms fays, That imereum Beneficia V-
fiiorte , quando duo vet plura Beneficia in unum in ferpetuum conjun^
guntur^ c. Sicut unire de Exceff. PraUt. Of this confolidation or
Union, the Law makes a threefold diftindion, or it may be done
three feveral ways in conftrudion of Law, (i.) When one and the
fame perfon is fet or appointed over two Churches. Can. & tempori^
qualitM. 16. q. I. c. I. Ne Sede Vacante. This with us amounts to a
Plurality, but not unto a Confolidation or Union. (2.) When one
Church is fo united to another, that that which is united, amittit
JM4 fuum, &eojiutHr cui ft unio. C Recolentes %. fin. de Stat. Monac.
C^ Lindw. de Locat. & CondnSi. C. licet glo. verb ^ppropriationum.
(3) When two or more Churches or Benefices are fo united toge-
ther, as that the one is not fubjed to the other, in which cafe Quod
melim r/?, retinetur. arg. C. Medicament urn. de pxnit. difl. i. gl, in
regu II. Cancell. Innoc. 8.
(3.) There are feveral Caufes or Reafons in the Law for this Con-
folidation , Incorporation, Annexation or Union of Churches-
and they are chiefly thefe five, (1.) An unlawful! dividing of thofe
Churches or Ecclefiaftical Benefices, precedent to their reintegra-
tion or intended Confolidation, as when fuch as had been formerly
united, were illegally divided. Otho. Conflit. Ne Ecclefia una^ c. cum
frt ars. gl. ib. in ver. reintevrentur. (2.) For the better Hofpitality,
and that the Redor might thereby be the better enabled to relieve
the Poor. 25. q. 3. pofleaquam. §. his ita. & dit'L gl. Otho. Conjt.
(5.) The overnighnefs of the Churches each to other in point of
Scit^iation, infomuch that oneRcdormay commodioufly difchargc
the Cure of both, by reafon of the vicinity of the places Arg. extr.
^e Prabend. c Majoribui. (4.) For or by reafon of a want or defed
of Parifhioners, as when one of the Churches is deprived of her
people by fonieincurfion of an Enemy, or by fome mortal Difeafe
or Sickncfs, or the like. 11. q. 1 . Vnio. & glojf. ubifupra. (5.) For
and by reafon of the extreme Poverty of one of the Parifhes. Extr.
de eta. & qua earn te. Extr. de Proibend. vacant, in fin. V'd. Thotof.
Syntagm. jur. lib 17. cap. 5, nu. 7 All which Caufes or Reafons of
Confclidation are enumerated out of the Canon Law by John de
jiten in his glofs upon Cardinal Otho'^s Conftitutions, and whatever
other caufes of Confolidation are aflerted by the DD. may be all
icferr'd to one or other of the ^orefaid Reafons. Likewife, there
are certain Solemnities required by the Canon Law, to be ufed and
obferved in the Confolidation and Union of Churches and Ecclefi-
aftical Benefices, the impradicability whereof in this Realm, ha-
ving otherwife provided in fuch cafes, can have no fu.h malign in-
flyencc in Law, as to invalidate the thing for want of fome Circum-
ftantii^ls.
Vnion of Churches. i^i
ftantial,, fo long as there is a retention of Eflentials, according to
the Laws and confticutions of this Kingdom. Vnio faUa ab EpU
fcopo debet tntervenire Confenfw Capituli fui. Clem, fi Vna de reb.
Ecd. non. diend, hem re^uiritHr Confenftu Vatroni. Clem, in aaro.
§. ad hac de Stat. Mona. Item nullum habet effe^Hm vivente Beneficiato.
Card, Zab. in dia. Clem. Si una, &c. Item., vena valor BeneHcio-
rum Exprimi debet., &c.
(4.) In all Confolidations regularly there ought to be Caufa Ne-
cejfitatisvelVttlttatti: Alfo the juft and true value of the Benefices
ought to be known, as well of that which is to be united, as of that
to which the other is unitable; in order whereunto there ought to
iflue a Commlllion of Enquiry touching the faid caufe and value,
at which all perfons pretending intereft, are to be or may be prefenc
upon Summons or Notice thereof timely given them to that end •
for no Confolidation or Union of that kind ought to be made non
vocatii vocandps. Rebuff /??//?. 19 j.
(5.) This Form touching Confolidations and Union of Churches
and Ecclefiaftical Benefices is pradifed in France ^ which, though
there appears nothing therein but what feems confonant to reafon
yet the Statute-Laws of this Realm have herein made other provi-
Jion in this matter : And that which we now commonly call Confoli-
dation^ the Canon Law, which is bell and mofl; properly acquainted
with this matter, cslh Vmon:, Touching which there are in uie and
practice many things in divers Nations and ( ountries, which were
Incognita to the Interpreters of that Law, and not in all things con-
fonant to each other-, thereby rendring this fubjeit the more per-
plexed by reafon of the feveral modes of pra-ftice , diverfified ac-
cording to the various Conllitutions of feveral Nations refpedive-
ly i for which reafon the Interpreters of the Canon Law are the .iefs
pofitivein reducing theftate of this Matter to fuch a point of cer-
tainty, as may be faid infallible in Law, onely they all agree in fome
certain Eflentials to an Union, as alfo (for the moft part) in this
Definition thereof, viz. That Vnio eft Beneficiorum fen Ecclefiarum
ab Epifcopo^ vel ab alio Superiore fa^a annexio. To which this alfo
may be added by way of defcripiion, though not by way of defini-
tion. That quando fit unio., Ecclejia in propristatem concedi folet. Cap.
incura.de jur. Patronat. and it muft be Vnio Beneficiorum^ for there
cannot bean Union unlefs there be plura Beneficia'mx.]\QC2.^Q. h.\.&
per totum. jj. de Gptio Lcgat. Alfo it is Beneficiorum fen EccUfiarum^
becaufe the word iBenefce^ is in it felf a general term comprehen-
ding all Benefices, great and fmall, Regular and Secular, Dignities,
and Offices : C.i.de re^. jur. in 6. c. extirpanda §. ijui vera, de Prebend.
So that Biihoprick-;, as well as other Benefices, may be united and
annex'cd^ But a Biflioprick, which the Law calls culmen Dignita*
M LI tif^
1^2 " Of Conjolidation, occ. ^ m
'^~ ^^dottrnoTregularly fall under the name or notion of Benefice: |
c. pen. de Prebend, and yet two Bifhopricks may be united, c. Dect-
mas^ &feq. i6. a. i. Rebuff. deVnion. Benefic. m. 4, 5. ...
(6.) This Confolidation or Union at the Canon Law, is either
Perpetual or Temporal; li Perpetual, then it muft be fo exprefled m
the Union , that in perpenmm univimm : C. expofuifti , de Prdb. if
Temporal, then it is onely for his life in whofe favour the Vnion is
made c. 1. ne Sedevacante, and at his death it expires, c. quoraam
AbbM, de Offic. Delegat. But the Pradtice with us knows nothing
of the Temporal Member of this dillinaion •, nor is the pradtice
thereof at this day received mFrance^ Rebuff, ubt fupr, nu. 9. fuch
Temporal Unions being onely in contemplatione perfona, mn EccUfu^
whereas the Law is, Ecdefia magis favendum eft^ quam perfona. Die.
c. I. cf c. reqmftfti, de tefia. & Oldr. Concil. 257. And where two Pa-
rochial Churches are confolidated or united, that Church to which
the other is united fhall be the Superiour and principal, the other
which is united, is the Inferiour and Accelfory, yet fhall enjoy the
Privileges of that Church to which fhe is united, c. recolentes^ m
fin defiat.Monach. Laftly, Themore worthy Benefice is never uni-
ted to the minw digno, and therefore a Parochial Church may not be
united to a Chapel, fed e contra. Sic. c. expofttijh^ de Trabend.
CHAP.
^73
CHAP. XV.
Of Dilapidations.
1 . What Dilapidation jlgnijies •, how many ways it may happen ^ the
Remedies in Law in cafe thereof \ and to what Court the coaniz,ance
thereof properly belongs.
1, Provtfions made by the Cznon for prevention of Dilapidations.
3. Dilapidation twofold in confiru^ion of Law\ An Expo fit ion of
the faid Canon ; the Bijhop'^s power of SecfHefiration in cafe of Di-
lapidation.
4. By whom the Body of the Churchy and by whom the Chancel (hall he
kept in Repair -^ How the charge of Repair tn the cafe of Dilapidati-
ons (iiallbe apportioned-^ and what the Law in fuch cafes^ where one
ParifJ} is divided into two,
5. Dilapidation of Eccleftaflical Edifices ^ a good canfe in Law of
Deprivation.
6. The Injunction of KingY.di. 6. for prevention of Dilapidations.
7. Leafes made by a Parfon^ void by Statute for Non-re/idence^ to
prevent Dilapidations.
8. The wafling the Woods of a Bifhoprick^^ a Dilapidation in Law^
fuch Woods being the Dower of the Church.
9. A Vicar felling down Timber Trees and Wood in the Church-yard^^ .
U a Dilapidation^ and good caufe of Deprivation.
( I . ) "Y^Jl^pi^^tio^ is the Incumbents fuffering the Chancel or
JL/ other the Edifices of his Ecclefiaftical Living to go to
ruine or decay, neglefting to repair the fame ^ It extends alfo to
his committing or fuffering to be committed any wilfull Wafte
in or upon the Glebe woods or other Inheritance of his Church.
Againft which provifion is made by the Provincial Conftitutions,
whereof Sir i> imon Degge takes notice in his Parfon*s Counfellour * i » Parf.Counf.
though in truth the Canon there provides rather as to fatisfadion par.j.cap.8.
for, than prevention of fuch Dilapidations. Lindw. c. fi Re^or
alicujui Ecclefm^ & glojf. ibid. But the Cancn Law is exprefs and
full in all refpsfts relating to this implicic Sacrilege, nor doth
the CBflome of England or the Common Law le?iVC the Church
without fufficient Remedy in this cafe, albeit it polipones the fatil^
fa(ftion for damages for Dilapidations to the payment of Debts,
as the Canon Law prefers it before the payment of Legacies. Sir
Simon Degge in the forementioned place makes mention of the In-
L 1 2 iaibition.
1 74 Of Dila-pi(latio72S.
hibitionout of Chancery to the Bifiiop oi Durham by order of Par-
liament in Edward the Firfth time, for wafting the woods belong-
«'Co.ii.49.2. ing to that Biflioprick ^ Alfoof the Archbifliop of Dublin s be-
ing Fined three hundred Marks for disforefting a Foreft belonging
« Rot. Pafc. to his Archbifhoprick ^ Likevvife, that by Books of the Common
i4H.3.m. 3. Law, a Billiop, d-r, wafting the Lands, Woods or Houfes of his
OzoH. (5. Church, may be depofed or deprived' by his Superiour^^. And in
"^H^' b *^2^^2"y,P3rfon, Vicar, ^c. fliall make any conveyance of his Goods,
Cou".94.bJ° defraud his SuccelFour of his Remedy in cafe of Dilapidations'
29 £.3.16*. a! i^ f hat cafe it is provided by the Stat, of 13 £//.2l. c 2. that rheSpi-
9 £.4.34.3. ritual Court may in like manner proceed againfl tht Grantee- as
otherwife it might have done againft the deceafed Parfon's Execu-
«Sm5. £!. tours or Adminillratcurs ^ : and all fuch Grants to defraud any per-
^•^' _ ^j fonof their jult adion, were made void by a later Statute f. It is
^.f. 15 ^ . agreed. That the cognizance of Dilapidations properly and natu-
rally belongs to the Ecclefiaftical jurifdidtion, and no Prohibition
to lie in the cafe^ or if fuch happen to be granted, then the fan e
8 F.N, B. to be fuperfcded by a Coniliitation e : yet it feems Adion upon the
51- f- Cafe grounded upon t}ie cullonie of England^ hath been brought in
^YxA.Farf. this cafe at Common Law, and Damages recovered ''. It is aifo c-
counf. par. i. nadcd by the Statute of 14 £//:?,. That Monies recovered upon da-
cap. 8. mages for Dilapidations fhall be expended in and upon the hou-
' St. 14 EI. fes, (^c. dilapidated i.
(2,) Cardinal Othohon in his Canon [Ve Vomibm EccUfiarum re-
fictendii'Ji hath conllituted and ordained, that all fuch Ecclefiaftical
perfons as are Beneficed, take fpecial care, that from time to time
they fufficientiy repair the Dwelling-houfes and other Edifices be-
longing to their Benefices as oft as need /hall fo require -, unto which
duty they are earneftly and frequently to be exhorted aud admo-
P.i(h'd, as well by the Diocefans as by the Archdeacons. And if
they lliall for the fpace of two months next after fuch Monition
aegledl the fame, the Bifhop of the Diocefe may from thenceforth
caufe it to be elFedually done at the Parfon's charge out of the pro-
fits and fruits of his Church and Benefice, taking onely fo much and
no more as may fuffice for fuch Repairs ^ And the Chancels of Chur-
ches to be in like manner repair 'd by thofe who are obliged thereto
And as to Archbifhops, Bifliops and other inferiour Prelates thev
are by the faid Canon enjoyn'd to keep their Houfes and Edifices in
good and fgfficient Repair, fub divini Jttdicn atteftatione. Confliu
Othobon. de dom. Eccl, refc. Sub divini Judicii atteftatione (h. e.)
damnationis dterm in extremo Calculo. glo. in ver. Sub divini Con({.
Othobon. derefident. Archiefifc. '
(3.) BytheGIofsonthatCanonitisinferr'd, That a Parfon may
be guUty of Dilapidations, or of a Negied in that kind two ways •
\
C.ll
Viz.
Of Dilapidations.
^7"^
viz,, either by not keeping the Edifices in good repair, or by not re-
pairing them being gone to decay. That Canon chiefly refers to the
Manfion-houfes of all Benefices Ecclefiaftical, and that not onely of
all Parfonages and Redories, but alf^ of all Bifitcpricks, and of all
Curates and Prebends, and of all others having Ecclefiaftical Li-
vings^ But not fpecially (by the words of this Ow(?« J unto their
Farm-houfes, though they alfo are by the Canon Law provided for
in cafe of Vilapidations. And fuch as neglect the Reparations a-
forefaid, may be accufed and convided thereof before the Dioce-
fan, who hath power to fequefter the Fruits of fuch Benefices for the
Reparations aforefaid. G'lojf. in ver. ctjfavtiit in MB. Can. fuch fruits
thereof being in conftrucftion of Law, as it were tacitly hypothe-
cated by a certain kind of Privilege for iuch liidempnity ■, and for
that reafon the Bifliop infome cafes may for that end fequefter the.
fame.
("4.) And whereas in the abovefaid Canon it is faid, That Chan-
cels ftiall be kept in repair by fuch as are thereunto obliged, it is to
be underftood, that that is fpoken by way of allufion to the common .
cuftome m England^ whereby the Body of the Church is ufually re-
paired by the Parifliioners, and Chancels by the Ketflors, whonot-
withftanding ought to be at the care, though not at the cofts of the
other alfo •, he being annually accountable to the Bifhop for the
fame, if the Bifhop fo pleafe ;, for which resfon the Redlor hath •
power to Qudit the Accounts of the cofts and charges about the .
fame, as alfo what iliall be given or bequeathed by way of Legacy
for that end and purpofe. And where this cuftome prevails, that
the PariftJoners (hall repair the Body of the Church, it is not to be
underftood, that this is incumbent on ihem as a Real^ but as a Per-
/o:^^/ duty or burthen •, yet every PariOiioner proportionably to that
quantity of Land which he holds within the Paiilh and number of.
Cartel he feeds on the fame : Clojf. ibid, in ver. ad hoc taiemur. And.
in cafe one Parifli be by legal Authority divided intoTwo^ in that
cafe, if fuch divifion were made by and with the confent of thefe.
Four, viz.. the Biiliop, the Patron, the Parfon, and the Pariftiio-.
ners, then the more Ancient Church fliall not contribute to the Re-
parations of the New, for that now thty are two diftind Parifties,
Cloj[. ibid.
(5.) Sir Ed. Cohe in the third part of his Inftitutes, having fpp- Co. Tn/t. par,
ken of eredling of Houfes and Huildings, &c. tells us what he finds 5- ^^P- 9i-
in the Books of the Common Law and Records, touching DHapida- l\^'Jf '^°
tions and decay of Building, and having Margined as here in thiSp£'^^^|'
Margent, fays. That Dilapidation of Ecclefiaftical Palaces, Hou-.
fts and Buildings is a good caufe of Deprivation.
(6.) By
17^ Of Dilapidations.
(6.) By the Injunaions of King Ed. 6. An. 1547- to all his Cler-
gy it is required, That the Propnetours^ Parfonj, Vicars and Clerks^
havirKJ Churches j Chapels or Man/ions^ (Imll yearly beftow upon the fame
Manjions or Chancels of their Churches being in dec^y., the fifth part of
their Benefices , till they be fully repaired ^ and the fame fo repaired^
V gp^ ^p^Y, (hall always keep and maintain in good eftate ^. Confonaat to which
Von^'sColIea/is the Thirteenth Article of Queen Eliz^abtth\ Injunaions given to
of Articles, ^\\ the Clergy, An. 1559.
e^c. par. 5. ^^^ yj^e Q^fe ^^as, where the Parfon made a Leafe to the Plain-
Hiil. 91 Eliz. tiff for 2 1 years after the Statute of i^EUz.. of Lands ufually Lett,
B. R. .'Wbff & rendring the ancient Rent, the Patron and Ordinary confirmed it,
Hak\c^k. lYiQ Leffee,let part of the term to the Defendant, the Parfcn died,
Cro. pa. t. j.|^g SucceiTour entred and leafed to the Defendant^ againfb whom
the Leilee brought Debt upon the former leafe, who pleaded the
Statute of \iEliz.- which made aJl Leafes void, where the Parfon
is not rehdent, or abfent for 80 days : It was Adjudged, That the
Leafe was void by the death of the Incumbent \ for the Juftices faid,
the Statute doth provide ngainft Dilapidations, and for maintenance
of Hofpitality •, and therefore provided the Leafes (hall be void not
onely for Nonrefidence^ but by death or refi^nation, for otherwife
Dilapidations fliouid be in the time of the Succ'^ITour, and he cannot
maintain Hofpitality.
(8 ) The wafling of the Woods belonging to a Biflioprick, is in
the Law underflood as a Dilapidation, as was formerly hinted:
What Timber Note, By ^oke chief Jufticc, a Bifhop is onely to fell Timber for
a Bifhofmay Building, for Fuel, and for his other neceHary occafions, and there
^^I'atmpnjls. *^ "° Bilboprick but the fame is of the Foundation of the King ; the
^ "^ * Woods of the Bifhoprick are called the Dower of the Church, and
thefe are always carefully to be prefer ved ^ and if he fell and deftroy
this, upon a motion thereof made to us (fays the Lord Coke) we
will grant a Prohibition: And to this purpofe there was a great
Caufe which concerned theBifliop of Vurefm^ who had divers Cole-
Mines, and would have cut down his Timber-Trees for the main-
tenance and upholding of his works; and upon motion in Parlia-
ment concerning this, for the King, Order was there made, that the
judges (hould grant a Prohibition for the King, and we will here
(fays he) revive this again, for there a Prohibition was fo granted.
And fo upon the like motion made unto us in the like cafe, we will
aifo for the King grant a Prohibition by the Statute of 35 E. i. If a
Bifhop cut down Timber-Trees for any caufe, unlefs it be for necef-
fary Reparations (as if he fell the fame unto a ftranger) we will
grant a Prohibition : And to this purpofe I have feen (faid he) a
good Record in 25 E. i. where complaint was made in Parliament
of the Bifliop of Dure fm (as before) for cutting of Timber-^rees
for
Of Dilapidations.
177
' for his CoIe-Mines, and there agreed that in fuch a cafe a Prohibition
did lie •, and upon motion made a Prohibition was then granted : Mich. r.Tac.
and the reafon tnen given, becaDfe that this Timber was the Dovv- B.R.c^^-
er ot th£ Church ; and fo it fhali be alfo in the cafe of a Dean and """' ^^r./^"?
Chaprer; in which cafes, upon this ground we will grant (2s he eumf-^K.n
faid) Prohibitions^ and the whole Court agreed wirh him herein ^"'^" ^^^P*
All.) in Sakitrs cafe, agamfl whom Judgment being given for Simo-
r>y, yet he being by allcnt of parties to continue in the Vicarsee for
a certain time, this time being eow pad, and he Hill continuing in
poiknion, and committing of great wafle, by pulling down the
Glafs-windows, and pulling up of Planks, the Court granted a Pro- mi,,, ..t^,
hibition, andn^id, That this is the Dower of theChutch, and weB.R r/V
will here Prohibit them , if they i^W and wade the Timber of the ^I'^^-ri
Church, orif they will pulldown the houfes : And Prohibiiion to^^'^^'^'- ^"^^•
prevent Dilapidations and to Hay the doing of any Walte, was in P""' ^'
that cafe awarded accordingly.
(9.) In a Prohibition, the cafe was this: A Vicar lops and cuts vHi .^T.r
down Trees growing in the Church-yard ^ the Church-wardens hin- tV.Kmnii
Cer him in the carnage of the fame away, and they being in Trial 3nd/i/7,verf.
of this Suit : The Church-wardens by their Council , moved the ^'"'^<>''
Court for a Prohibition to the Vicar, to ftay him from felling any ^"'^ ^''' ^'
more. Coke Chief Juftice, This is a good caufe of Deprivation ,
if he fell down Timber Trees and U^ood , this is a DUapidatton ]
and ly the Refolutionin Parliament, a Prohibition by the Law ihall
be granted, if a Bifhop fells down Wood and Timber- Trees. The
whole Court agreed clearly in this, to grant here a Prohibition to
the Vicar to inhibit hira to make fpoil of the Timber, this being
(as It is called in Parliament) the Endowment of the Church.
Ccke-, we will alfo grant a Prohibition, to reflrain Biihops from
felling the Wood and Timber- Trees of their Churches. And fo in
this principal Cafe, by the Pule of the Court a Prohibition was,
gtanted.
C H A P.
178
CHAP. XVI.
Of Patrons y & de jure Patronatus,
I
1. What Patron properly fignifies in the Law^ the Original thereof -^
and how fubje^ to corruption.
2. In what cafe the Bifhop may proceed de jure PatronatuSj and how
the Procefs thereof is to be executed.
3. How the admittance ought to be^ in Cafe the fame Clerkjje prefen-
ted by two Patrons to the fame Benefice.
4. In what cafes of Avoidance^ Notice thereof ought to be given to
the Patron ^ and what courfe in that cafe the Btfhop is to take^ in
cafe he knows not the true Patron.
5. Several Appellations in Law^ importing Patron.
6. How many ways a Church may become Litigious.
7. Whether an Advowfon may be extended?
8. Jn what cafe the Patron may prefent., where the King took not his
turn upon the firfi Lapfe.
9. A P^itron may not take any Benefit of the Glebe during a Va-
cancy.
10. In what cafe th: Patron (hall not by bringing the }Frit of Qua.
Imp. againft the Btjljop^ prevent the incurring of the Lapfe to the
Ordinary.
1 1. The King is Patron Paramount^ and the Patron of all the Bi(l)op-
rickj in England : The Charter of King John , whereby Bifhop-
rickj from being Donative became Eledive.
( I.) T) ATR O N, by the Canon Law, as alfo in the Feuds ^
I (wherewith our ( ommon Law doth herein accord)
doth fignifie a perlon who hath of right in him the free Dona-
tion or Gift of a Benefice , grounded originally upon the boun-
ty and beneficence of fuch as Founded, Ere<fted or Endowed Chur-
ches with a confiderable part of their Revenue. De Jur. Patro-
nat. Decretal. Such were called Patroni a Patrocinandi , and pro-
perly, confideiing the Primitive ftate of the Church-, but now ac-
cording to the mode of this degenerating Age, as improperly, as
Mons a movendo :, for by the Merchandize of their Prefentations
they now feem, as if they were rather the Huckfiers than Patrons of
the Church. But from the beginning it was not fo^ when for the en-
couragement of Lay-perfons to works of fo much Piety, it was
permitted them to preftnt their Clerks where themfeives or their
Anccl^iours
of Patrons, & de Jure Patronatus. 179
Ancefbrs had expreffed their Bounty in that kind; whence
chey worthily acquired this Right of Jus Patronatus-, which the
very Canon Law for that reafon will not underftand as a thing
meerly Spiritual , but rather as a Temporal annexed to what
is Spiritual : ^od d Supremis Vontificibus prcMtum ejt, Laicos
habere Jus Trafentandt Cltricos Or dinar its : hoc fingularl favore
fupinetur y ut alleSientur Laici^ in^vhcntur'^ & inducantur ad
confiruBionem Ecclefarum. Nee omni ex parte Jus Vatronatus
Spirituali cenferi debet, fed Temporale potius Spiritual annsxum.
<iloj]. in c. piiC mentis f 1 6. q. 7. Coraf. ad Sacerdot. mater par. i.
cap.l. Yet notTeraporalin a Merchandable fenfe, unlefs the Prt-
fentor and Prefentee will run the hazard of perifliing together ;
for prevention whereof, provlfion is made by that Solemn. Oatb
ehjoyn'd by the Fortieth Canon of the EcclcfiafticalConftitutlons;
whereof there was no need in former Ages lefs corrupt, when \n-
-^llead of felling Prefentations they purchafed Foundations \ and In-
flead of erefting Idol-Temples (for Covetoulhefs is Idolatry j they
Founded, Built, and Endowed Churches for the Worfhip of the
True God. Fatroni in jure Vontificio dicuntur, ^ui alicujus Eccle-
fia extruend^y c^c. Authares fuerunt , ideocjue Prafentandi (^
Ojferendi Clericum jus habent, d^c. Accjuirunt autem hoc jtts^
cjui de Epifcopi cenjenfu vel fundant Ecclefiamy x/el adificant ,
"vel ante Confecrationem dot ant ^ ut non valde Jit ObfcuruWy Jus
Patronatus, (^c. Jus ejje Pr^efcntandi Clericum ad Ecclefiam
Facantem ex gratia ei ConceJJ'um, qui Confentiente Epifcopo, 'vel
Confiruxity 'vel dctavit Ecclefiam. Corafius ibid par. 4. cap. 6.
And it is gratefully provided by the Canon Law » if a Patron or
his Pofterity being Patrons, do fall to decay , the Incumbent of
the Fruits of the Church by Compulfary cenflire of the Ordinary,
according to that Law, is to be enforced to make Contribution to
them : For v/hich realbn it is, that the Iliaw holds Utilitas to be
one of the three fruits or efife6ls of a Patronage, viz. Honos, Ofjusy
Utilitas.
(2.) If two Patrons, both pretending to the fame Church, pre-
fent unto the Ordinary their Clerks rerpe<Stively, who infill: on their
Admlflion, and the Bifliop by admitting the one rejects the other,
he that isreje6led, at leaft his Patron, may have his Action again It
the Biihop,not in the Ecclefiaftical^but Temporal Court, by a Quare
Impedit, or the like. In fucb cafes therefore the Bifliop is wont to
decree a Procefs commonly called Negotium de Jure Patronatus(^h.2X
is) A day fixed and- certain is appointed by the Bifliop to fit in the
Cluirch that is void, and a Monition decreed to be ferved on the
Patrons prefenting, and the Clerks prelcnted, thea and there to be
pr^ftnt, to fte proceedings in the faid bufinefs according to Law,
M m to
i8o Of Patrons, &c
* iz H.6.2pb to which end a Citation ifliaes to * Twelve perfbns, whereof fix of
If they refufe, ^\^q Clergy, and fix of the Laity, all of the Neighbourhood of the
being duly ^^jj vacant Church, to be then and there alfo prefent by way of
Summc7iedto Enqueil, and on their Corporal Qaths to tenauire on certain
Conmnjjioners Ardclcs, then miniftred to them, touching the right ol Prelentacion
oftheDijhop ro the ftid Benefice. Thefe Articles confift chiefly of thefe Four
may Proceed a- heads, 'VIZ,, (i) Who laft preic'ntcd to the faid Church when ic
gainji the Cler. ^^^ ^^^ ^^-^^^ ^^ ^j^ f^j. ^j^g j^^ ^^^^ qj. fl^j-gg jjj^gg ^f/hen it Was
gy-mcn by Se- .^ , . Whether the perfon or' perfons v/ho laft prefented, or
the Uj7nen by thefe laft two or three times or turns, at the time and times ot Va-
Ecclefiapcal cancy of the faid Church, did prefent in his or their own proper
Ce?ifures. liahi and title. (5) Whether either of the Clerks now prefented be
t It IS .77; bt' j^nown or fufpefted of any Notorious crin/€,or of Herefy,Samony,.,
fntatrfofa Penury, Adultery, or Drunkennef?. (4) Whether either of the
mltdQ^w^d- Clerks now prefented hath given or promifcd, either by himfelf, or
etate probanda, any other for him and in his name, or by or with his confent or
aiiddotb mt knowledge, any Mony or other gratuity direclly or indire61:l7, for
^'^^^^■'^ Pf'^'y obtaining of his Prefentdtion to the laid Benefice, to the Patron
'" ^^ ^* ''^ ^thereof, or to any other who prefented the faid Clerk, or caufcd him
to be prefented. On which Articles if it be. found by the Verdict
of the faid Jury, that fuch or iuch of the (aid Patrons was in the
poffeilion of the Prefentation at that time when the Church was
laft void, then is his Clerk to be admitted, if there be no other le-
gal impediment, to hinder it, that is, nothing to affeil: him with, con-
tained in the third orfourih laft precedent Articles.
(3.) If two Patrons, each pretending a right of title to the Pre-
fentation, fhall prefent one and the fame perlbn feverally to the Bi-
fhop to be Admitted and Inftituted to the Church ; the Bifhop can-
not Admit him generally, but muft in his Admittance of the Incum-
bent, admit him Incumbent of the Prefentation only of one of
them ; And if they make fuch feveral Prefentations, claiming by
feveral Titles, the Bifhop is to dirc6t this Writ de Jure Fatrcnatus- ;
for that in fiich cafe the Church is become Litigicus; yet the Bifhop
is not to award the faid Writ, but at the inftance and requeftof the
faid parties. And here ^ at who/e charge the faid Writ of Jure
Tatronatus fhall in this cale be fued forth, whether at the charge of
the Bifhop , or of the parties ; for that the old Books (as the Re-
porter gives us to underftand) do differ in this point. Mich. 8. Jac
C. B. in Danhy and L.inlefs Cafe. Vid. 7 Ed. 4. Quare Imp. ioo>
34H^.4I. ai H.6.j\.2^ and ^^ /y.6.a8. It is fuppofed (and com-
monly pra61:ifed) it is fued at the inftance and coftof one of the
parties, or of both if they joy n. 35^.6.18.^.19.^, 34/y. 6.ia. a
Htf^.. 317. 24H. 6. 3 8.5^.7.2:.^.
(40 Sup-
de Jure Patronatus. 1 8 1
(4.) Suppofe that a Parfon be deprived by the Ordinary,or reads
not his Articles; In which cafes the Church is void, yet notice muft
be given to the true Patron for that time, or elfe the Lapfe incurs
not ('which is inconvenient for the Church, and a prejudice to the
Ordinary) for how fhall he in thiscafe aflure himfelfof afufficicric
Notice? For if he give notice to him that is not Patron, for this ve-
ry turn, his notice is vain, and the true Patron perhaps knov/s not
of the Deprivation, or if he. knows it, needs not Prefent without
notice given him. In this Cafe Sir H. Ht^^^r^ Chief Juftice holds.
That his way is to award a Jure^ Patrefiatuts with fblemn Premoni>
tions Quorum lnterefi\ And then enquiry being made whoisPatron^
to give him Notice, and if hePrcfents not within fix months, then
the Ordinary may Collate, though that fhall not bind fhe very Pa-
tron, yet it fhall excufe the Bifhop from Difkirbance upon Special
matter fhewed; But if the other liippofed Patron prefent, and the
fix months incur^ Quare if the true Patron be bound, fince there
was no Notice given him. And the Opinion of Hob.'xs, that though
without Notice the Patron his not bound by the Lapfe, yet that is
nothing to fave the Uliirpation of another pretended Patron, who
is not fubje<5i: to give Notice (a). Alfo if a Suit be depending be- ^^^ ^^^^h- '/^
tween Two parties touching the right of Prefentation) and it be-^^'^* p^'!!°'^°
not determined withinfix months, the Bifhop may prefent by Lapfe, i^^^ihis verC
and he that hath right to Prefent, fhall recover his Damages, as by Archbifhopof
the Statute appears (I;). . Tork, and Hok
(5.) 7 he Patron or he that hath right to Prefent to a Benefice, is ^^P-
fbmetimes termed Jidvo-we, alias Avowe Qy^il-vccatus) (f.)There is , „_ . '^y^'
2l\{q Advoive Tarat^ountj or the higefl Patron, which is meant only of Law. verb.
of the King. Aiivocatus efi adqutmfert'tnet jus Advocationis alicu- S^are hn^edit.
jus Ecclefiie, ut ad Ecclefiam Namineproprionon alteno,poJ/it Prafen- (0 "^^ £^- J-f-
tare (dj. Britten faith, That Avowe is he two whom the right of ^^^ ^'^^^' ^' ^'
Advowfon of any Church appertains; fo that he may prefentthere- pjj^ ^^'{q, ,n,
unto in his own Name: And is called AvovJCy for a ditFercnce from
thofe.that fbmtimes prefent in another mans Name, as a Guardian
that prefents in the name of his Ward; and for a difference alfb
from thole who have the Lands to which an Advowfon appertains
but only for term of their lives or of years, by Intrufion or DifTei-
fip (e). (e) Bntton.
(6.) A Church may become Litigious both before, and by, and ^V- -^- ,
after a Jure Patronatus: Before, as by a plurality of Prefentations :
Bj, as when in cafe of plurality of Prefentations upon a plural Jure
Patrofiafusiho: one Jury gives a Verd]6l for the Title of one Patron,
the other for the Title of the other Patron: After, as when after a 41 H. 6.45.4:
Jure Patroftatus awarded, and Verdi6l thereupon given for one of
the parties, a third perfon prefents before Admittance of his Clerk
* M m 1 for
I 82 Of Patrons, dc.c,
for whom the Vcrdid was given. Upon a plur^Xjure Paironatus If
one Jury give iheVerdi(5t for the Title of the one,the other for the
Title of the other Patron, it is conceived in that cafe the Ordinary
may refufe the Clerics of both Patrons, and fuffer the Church to .
( f) Callt} Lapfe (f). And where a Third perfon prefents after a Vcrdi61:, as -
Read. 3. aforcfaid, but before the Clerk be Admitted, whereby the Church
zi H.6. 44. a. becomes Litigious de Ncvq, in that cafe the Bifhop may award a
Sed Qiiaei^e. new Jure Patronatus^ Alio if the Bifhop doubts the Patrons Title
nIw/cm and" *^^^ prefents, he may (as fbme conceive) award a Jure Patronatus,. .
?apn. albeit the Church be not Litigious (g); which is a (afe way for pre-
{g) ai H.'i.44. vention of any furprize to the rightful Patron or other pretenders,
p///> Read- in which cafe if the Right of Patronage be found for another that
^^^' had not before prefcnted, his Clerk may be admitted by the Ordi-
(h) 34.R (J. "^''y ^^)' ^^ '^ "^ Diflurber if he admit a Clerk that is prefented
40. a. before the Church becom Litigious by a fecond prejentation (i) ;
Q^ Hob. 31;. for by the Verdi(5l of the Jury aforefaid, he is fufficiepi;tly warranted
to admit and inilitute the Clerk for whofe Patrons Title the Ver-
di<Sl is given, in doing whereof lie is no Difturbcr, albeit the other
Patron, againft whom the Verdi6l is given, ,fhould after recover in
a Qare ImpeJit. And afier a Verdict in a ysire PatrouAtus found
for a Patron, he ought to renew his Requeft to the Ordinary for
the admiflion of his Clerk; otherwife the Bifliop may Collate, in
cafe the Church Lapfe after Six month?.
(7.) Si;r John Arundel and his Wife brought 2. Qunre Jmpedit
againft the Bifhop of Glouceffer and others, who pleaded in Bar, that
William Sturton was feized of a Manor to which the advowfbn
was appendent, and bound himfelf in a Sratute-Merchant of 200/.
to one Longf and the Statute was extended^ and conveyed the in-
tereft of theStatute to one of the Defendants, and then the Church
became void : And by the Court the Advowfbn may be extended,
and if it become void during the Conufees cftate, the Conufeemay
(n Mich. 31. Preft?"^ (^)-
5c 33 Eliz.^ C^-) ^" Beverhjs Czfe againft the Archbiftiop g^ Cavterbury ,
Sir "jo. Arm- where the queftion was whether the Queen might take her turn
dell\ Cafe. to Prefent, in regard fhc took not her turn when the firft Lapfe
Poll Cafe hapned immediately at the firft Avoidance, by reafbn of the In-
mokCa] in cumbents having Two Benefices, within the Stat, of 2,1 H.8. And
Qmn% Rep. ^ ^^ Juftices of the Common Pleas after long and ferious debate^
did Refblve, That the Queen fhall not now have her Prefentation,
but the Patron ,becaufe the Queen hath fuch Prefentment by Lapfe
3S the Bifhop had,and no other, and could prefent but to the prefent
Avoydance then void : And although Nullum tempus occurrit Regi^
yet we muft diftinguifli it thus; for where the King is limited to a
time certain, or to that which in it felf is Tranfitory, Ther^ the
King
de Jure Patronatus. 183
King is to do it within the time limited, or in that time wherein
the thing to be done hatK EfTence or Confiftence, or while it re-
maineth, for otherwife he may not do it afterwards : So wherea
Second prefentment is granted to the King,andhedoes notPrefent
he nlay not after (/), (I) Beverty
(9.) During a Vacancy the Freehold of the Glebe is in Abei- againft the
ance (w), and not in the Patron (n)-^ who can take no benefit, ^^'^'j^^^"? ®^
thereby in that time (o), nor can he have any aftibn for Trefpals q„^„'; ^ll
done thereon in thetimeof fuch Vacancy {f) ; Yet if a man hath (w) Littl. 144..
an Annuity out of a Parfbnage, and he in the Vacancy thereof Re- («) 8 H:6.24.b.
leafe to the Patron, it (hall excinguilh the Annuity .1 1 H.j./Li.Co* (") ^^^^-
S.ForJe,Sl.k / /+ (f, „ H.«.4.b.
(lo.") If a Church becomes void by the death of the Incum-
bent, or otherwife, and the Patron within Six months bring a
^are I/Kpedit agalnO: thcBifliop, and then Six months pafs with-
out any Clerk prefented by the Patron to the Bifhop; in that cafe
the Lapfc (hall Incur notwithftanding the pendency of the Writj
for lit is not realbnable that the Ordinary fliould lofe his Title of
Lapfe without any wrong done by him, by a fr-aadulent adiion
brought without caufe by the Patron, and whereby the Ordinary
is put to Expcnces without caufe, and by fiich fraudulent means
the Patron might keep the Church perpetually void.Hoh.Rep. 170
^ Roll. Abr. 'verb. Prefentwent, lit. X. fag. 3 66,
(^ 1 1 . ) The Jus J^ppellandi in defecl: of Juftice, and the Jus
Trafentandi in cafe of Lapfe, feem to have a parallel refemblancc - .
with one another in their gradations ; for as they both primarily
meet in the Ordinary, fo they both pafs from him to the Metropo-
litan, and from him to the King, not only as Supream Ordinary, . - '
but alfo as Patron Paramount of all the Biihopncks in England 'y
which,as they were originally Donative^er Annulum &• Baculum:
Id now fince K^ng Johns time,they areby Canonical EleUion\ for
King John by his Charter dated the 1 5-/^ of January in the 1 6th
year of his Reign, granted this priviledge to the Church in thefe
words, viz. Qnod tjHalifcunejue Confuetudo tewporibus VradecejJ'o'
rum Ho^tofum haBenm in Ecclefia Anglicana/w^rif ohfer'vata,d^
quicqmdjuris nobis haBenus Findicaverirmis^de catero i?i uni'verjis
^Jingulis Eccle(lis d^ Monafieriis^Catbedralibus d^ConventuaJi-
bus totius Regni AngWxjLiberis/Int in perpetumEleBiones qtiorti?n°
cunque P r alat or um^ma jorum d^' minorum\ Salvo Nobis O* bare-
dibus nofiris Cufiodia Ecclefiarum d^ Monafieriorum vacantium^ ,
lua ad nos pertinent. Promittimus etiam quod nee itnpediemfts nee
impediri permittemus per Miniftros nofiros, nee procurabimus^quin
in univerfis d^finguUs Monajtsriis & EGck/iis^ofiquam vacuerint
Praslamr^y.
84 Of Patrons, & de Jure Patronatus.
^ _ .^ ^ ™ ; I
latttra, ijnemcuneiite volumm Libere jiblfraficiant EkUores Taf- "
torutKi fetita tamen a Nobif frius C" haredibus ffofiris Ltcenn^
Bligendtf ejtiam non denegabimus vec differ emns, Et JimiUter, fofi
ceUbratam EleSliomm, nofier recfulratur Affenfus, <]mm nm de-
negabimus^ vifi adverfus eandem Rationale pro^ofuermus^ (jf kgiti-
r/is frobaveriwus propter cfuod non debemns con^entire^ ^c. Vid-
Davis Rep. in the csie of Pramunire^ fo. 9a , 9 3
CHAR
i85
C A H P. XVII.
Of Parfons and Parfon ages •
t. Parfon, v^hat he is in the intendment of Lou/,
%. What is meant by Parfbn imparfonee.
3. The Freehold of Church and Glebe is in the Parfon: "what in-
terefi: he hath in the Church-yard, and the Trees there growing':,
and v^h ether he hath any tn the Bells or Ornaments of the
Church?
4. Hoiv he muf be (qualified that -will he a Parfon ; and who is
rendred in ca fable of being fnch.
5-. Whether the Par/on may demand any thing by Cuftom, ufon
the Burial of one who dying in his Parijlj^ was Buried elfe*
where,
6. The ^i^ordsParComge,Church,RQ£\iory, frequently ufed Syno-
nymoufy, Penfions of Ecclefiaftical cogniz,ance.
7. A caje in Law touching a Parfons Obligations for Rejtgnation.
8. Whether a Parfons acceptance of Rent tnakes his Predece (Tor's
Leafe good.
9. Prohibition- to the High Commijf otters o/York, touching Arti-
cles exhibited before them again ft a Parfon.
I o. A Cafe in Law touching the Confirmation of a Leafe made-
by a Parfon.
1 1. Other Cafes at the Common Law, relating to Parfons^
I 2. l^he Patron nothing to do in the Church during Plenarty.
I :?. By what words a Kef gnat ion of a Parfonage may be,ornot.
14. Whether the Ref gnat ion of a Donative maybe to the Donor^
or how it may be departed with ?
1 5-. Whether the Par] on may apfoijtt the Parifli Clerk ?
16. A Biflwp, Archdeacon, and Parfon^ are Spiritual Corpora-
tions and have a double Capacity.
ij. All differences between Parfons and Vicars concerning tha
endowment of the Church, arecogniZ.abk m the EclefafticaL
Court, ■ " . , , ;
18. Privtledges of the Clergy. j
(l O^l '^Hcrt is Parfon [Perfona~\ and Parfon imfarfonee{Perfona
' JL imperfcnata: ] Parfon properly fignifies the Re6tor of a
Parochial Churchy becaufe during rhetinje 3^ his .'Incumbency he
repre--
jS6 Of Parfons,
reprefcnts the Church, and in the eye of the Law fuftains the perfon
thereof, as well in Suing, as in being fued in any a6lion touching
f^Vid.Flcra. the lame (^.) Originally the Parfon was he that had the charge of
' ^^-9'^^?' 1 8. a Parochial Church, and v/as called the Reaorof that Church,
■ but it feems he is molt properly fo called, that hath a Parfonage
where there is a Vicarage Endowed. And yet it Is fuppofed that
Farfona is the Patron, or in whom the Right of Patronage is, for
that before the Later an Council he had Right to the Tithes, in re-
gard of his having erei^ed and endowed the Church which he had
Founded. The Paftors of Parifhes are called Re^jtors, unlefs the
Pr«&4i^l, Tii;he^ be Impi-opdated ; and then they are called Vicars,
Qudfi 'yic^ fmf^enies Re5ioi;im^: And Curates are they who forcer-
tain Stipends %(fi|i: (uch Re6^ors and Vicars, that have the eare of
more Churches than one.
(a.) Parjl^i.} i-fifferfonisey ^s he' that as lawful Incumbent is iii
atStual pofTe/iion of a Church Parochial,and wlih whom the Church
C^) N. B. of ^'^ ^^^ ■' ^ ^^ Pi*efentative or impropriate {b) ; and feems alio to be
^tries, verb, that; per(9j> tQ whom tb? ^i^nefice is given in the Patrons Right ;
Aid tnAnnuity. for in fome Books Perfona imperfonata is taken for the Re6lor of a
(aj Regifter Benefice Preventative and not Apprppriated C^} - Yet Djer faith,
ju laa , 0,34.5, 'phaf ^ Pean and Chapter are ]?ari6ns Imperfonees of a Benefice
nu, 72. "^ "appropriated to thera {d)\ and in another place plainly fhewetii,
Co Idem, fo. That F'^rf()na imperfonata, is he th^t is Inducted and in pofTeflion of
2.21. nu. I p. a Benefice fe). So that Perfona feems to be termed Imperfonata^otir
ff) Vid. Co. ]y \^ refpe£l of the poiTcffion which he hath of the Benefice or
fo 3006 Re(2:ory, be it Appropriate or otherwif^ by the A6t of ano-
ther (fj.
(3.) The Parfon hath a Right unto the pofTeflion of the Church
and Glebe, having the Freehold in himfblf, and may receive the
Profits, Tithes, Oblations, Obventions, and Offerings to his own ufe,
without the Patrons or Ordinaries confent, who without his con-
fent and agreement can do nothing during his Incumbency to charge
the Church or his SuccefTors, And not only is the Freehold of the
Church in the Parfon, hut he hath alfb the Right of the Church-
yard and Glebe in him, whereof if he be put out of pofTeffipn, or
(g) Vid. 18. dilTeifedi he may have an Ailize C^). Or if he be eje<^ed he may
fiJchlm ^^ ^^^^ Trefpafs, and fb may the Vicar have agaioft a Stranger, if he
(h) 13 R 2. ^ difleifed of the Church-yard, but notagainft the Perfbn him-
Fitzh. tit. felf(^j. For the Parfon fhall have an Affizeor an Aclipn of TreP
Jurifdiction.i^. pafs of flich things as are annexed unto the Church or Glebe, or
for cutting down of the Trees, or doing of Trefpafs in the Church-
U) u H. 4. 1 2. y^^'^ ^'^ Glebe, the Right and interefl thereof being in the Parfon.
& \ 7 H. 3. O'J- But if the Bells in the Steeple, the Ornaments of the ^hurch,
Pr«Iib. 2<f. <y. the like, betaken away, in thateafe the A<ftion dpth not beloRg
' ' ' ' ro
andParfonages. \%j
to the Parfon, but to the Churchwardens {K). Notwithftanding ik) 1 1 a 4.
the Parfbns Right and intereftas aforefaid, yet he cannot cut down '^- ^^c.
the Trees growing in the Church-yard of his Parift, fave for the*''''' ^^^'^- ' ^•
Repair of the Church (/;. Or if a mcer Stranger cur them down, ^1%^' ^: '"
no Suit can be thereon in the Spiritual Court for Dammages; for if Cafe.
Suit be there commenced in the Cale for Dammages, no Confulca- Roll Rep,
tion fhall be {m). Nor can the Parfon have Acftion for Seats in the ^/ '^^^ ^t''^' "f
Church taken away by a Stranger, becaule they are not fixed to I^ ^- '* '^^^'^
the Freehold i But the Churchwarden may ha^e an Adlionin that (T/? ^"'i'^'
(4.) No man can be a Parfon until he be a Priefl in Orders,which m the church^
he cannot be until he hath attained the Age of 24 years ; Conle-)'^''^'f^'veto
quently therefore he mull be of that Age ere he can be a Parfon Co); ''^/'^''* ^^^^
and is commonly called (when Inducted into a Church) the Re6lor r/1""^ l""'
thereof, and fliall be accounted Proprietor of the Tithe of the Pa- chtmh.
rifh whereto the Church belongs, if the contrary be not fhewed {m) Ibid,
' {/>). A man that is guilty of (ome Crime that is malum infs-, as OO 8 H. 7. 1 i»
Murther , Perjury, Forgery, or the like,though not convict thereof, ^"^ ^'^' ' 3 EJ.
yet if the Truth thereof be certainly known to the Ordinary, may ,'-. ^', ,
be rejected by him from being Parfon of a Church, if thereunto Regiftei- 317.
prcfented by the Patron (^j; Otherwife it is, in cafe he be guilty c^) Lz'm'rp.
only of a. malum prohibit uw, and not ?nalum m Je, as to play at un- ^-^P- Imprimis
lawful Games, to frequent Taverns and Alehoules, or the like (r). ^ ^"^'^*
Alfo the Son is by the Canons rendj-ed incapable of fucceeding his °'^'^ '^'
. Father in his Parfonage (j); And if a manprefented to a Living be v . ,
not in Orders, the Bilhcp may refufe him, but not fcr want of a Te- cum T'^'^'
ftimonial (/)j for if any perlon (hall be Admitted, Inftituted, and inhibitum, &c
Indu6led into any Living before he is in Holy Orders, his AdmiiH- ^t) Leon. 1 30.
on, Iniiitution, and Indu(5lion are void by the late A61: of Unifor-
mity («) , whereby his Subfcription, and thereof the Bifhops Certi- . , „ „
ficate, alio his Reading the ^ 9 Articles of Religion in the fame 2./ cap 'I
Parifh-CliUrch onfome Sunday or the LordVday(ffwpf//^e; D'l'vmo-
rum^ within two months next after his Indu6llon,the declaration of
his unfeigned AfTent and Confent thereunto, his Reading the Book
of Common-prayer, or Service appointed for the Church that day,
within two months next after his Induction, with the declaration
alfb of his Afl'cnt and Confent to all things therein contained, are
,^ required, otherwife the Church becomes void, and the Parfon will
: be put to the proof of all the Premiffes, in cafe he Sue the Parifhio-
ner refufmg to pay his Tithe, if he fhall inlifl thereon. The Sta-
tute of I 3 El. cap. 11. Ordained, That the Articles agreed by the
Archbifhops and Bifliops of both Provinces, and all the Clergy in
the Convocation held at London, (^c. fliall be read by the Incum-
bent, otherwife he is ipfo /^t?c deprived. Or admitting all thcle Re-
* N n quifites
i88
* Note, Theit
in Prghibition
it was Refo!.
nj^d, that the
Six mo7Jths for
proof of the
Surrntze, jhall
not he, counted
hy z% days to
the Month, but
^cording to
the Kalcftder.
In Cafe Cipley
againft Cfllins,
Kob. Rep.
(w) Trin. 1 5*
]ac. C. B. Ed.
Topfal and o-
thers verf.
Ferrers. Hob.
Cjf_)Pafch, IS
Eliz. Crocker
and Tork verf.
Dormer, in
Foph. Rep.
OfParfons,
quifites have had their due performance, fb that he is a compleat
Parfon to all intents and purpofes of Il^aw whatfbever, yet he may
not under pretence of this or that Cuftam, extend the Lines of his
Parfonage beyond its due limits or bounds, out of an Avaricious
defign to advance the perquifites of his Parfonage.
(').) Edward Top fat C\txk, Parfon of St. SofoZ/J/^J without Al-
der Jgate, London., and the Churchwardens of tiie lame. Libelled in.
the Ecclefiaftical Court againft Sir John Ferrer s\y2.x\6, alledged, that
there was a Cuftom within the City of London., and fpccially with-
in that Parifh, That if any perfon, being Man or Woman, die with-
out that Parifh, and be carried out of the Parilh to be Buried elfe-
where, that infuch a cafe there ought to be paid to the Parfon of this
Parifh, if he or fhe be Buried elfewhere, in the Chancel fb much, and
to the Churchwardens fo much, being the Sums that they alledged
were by Cuftom payable unto them, for fuch are were Buried ini
their own Ghancel ; 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 io demanded of him the faid
Sum. Whereupon, for Sir John Ferrers a Prohibition *was prayed
by Serjeant Harris, and upon debate It was granted : For this Cu-
flom is againft Reafbn, That he that is no Parifhioner, but may
pafs through 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
fb upon the matter to pay twice for his Burial (iv).
(9.) The words Parfonage, Church, and ReSlcry are frequently
in the Law ufed Synonymoujly and promifcuouflv ; but the word Ad-
'voyvfon is another thing, and diftiadt from each of them . And as to
fbme Parfbnages there are certain Rents due and payable, fo out of
Ibme Parfbnages or Re6tories there areiiTuing certain Rents orPen-
fions, which Venftdns are not fuable at the Common Law, but in
the Ecclefiaflical Court, as was faid in Crocker and TorKs Cafe a-
gainft Dormer, againfl whom they had a Recovery in a Writ of En-
try in the Poy?, among other things of a yearly Rent or Penfionof
four Marks, iffuing out of the Church or Rcdory of K In which
Cafe it was agreed by Clench and Ff»»tfr,that a Penfion ifTuing out
of a Redroryis the fame with the Rent; of which fo^ham feemed
to make fbme doubt ; for there being in that Cafe a Demand for
Rent in the Disjunfbive, 'viz,. a Rent or Penfjon, he moved that the
greateft difficulty in the Cafe was the Demand made in the Dlf^
jun6live, 'viz^. of an Annual Rent or Penfion ; for if a Penfion ifTu-
ing out of a Re6rory fhall be faid to be a thing meerly Spiritual,and
not to be demanded by the Common Law, or meerly of another
nature than theRentit felf, with which it is there conjoyn'd by the
word IprfX tliat then it is Erroneous (&).
and Parfonages. i8^
- ■— ■■ ' - - — ^
(7./ B. brought an kGdon of Debt againft W. upon an Oblfga-
tion of 600/. the Condition was, That if W. Refign a Benefice up-
on Requeft, that then the Obligation fhould be void. And the
Condition was Entred ; the Defendant Demurred, and Judgment
mB.R. fro Querente. And upon Error brought, judgment was
Affirmed in the Exchecjuer ; for this Obligation is not voidable by
the Statute of i^Eliz>. which makesObligationsof the fame force,
as Leafesmade by Parfbns of their Glebes, 'viz^.^er 'Non-Rejidency:
And it doth not appear by the Plea of the Defendant, that k was
not an Obligation bona fidei'^\i\c\\ might be lawful; As if a Patron
which hath a Son, v/hich is not yet fit to be prefented for default of
Age, and he prefent another with an Agreement, that when his Son
come to the Age of 14 j'ears, he fhall Refign it, it is a good Obli-
gation. And this Cafe, 'Viz,, an Obligation with Condition to Re-
fign had been Adjudged good in the Cafe of one Jones, An.'^.'Jac,
And the Counfel (aid, That he who is prefented to a Church is
Married thereto, and it is like as if a man who hath married a Wife,
(hould be bound to be divorced from her, or not cohabit with her,
the(e Conditions are void. But thefe refemble not our Ca(e (y). (7) ^»^^ifigt»n
(8.) It was faid in Johnfon\ Cafe, That if a Parfon Leafes his ^^rf. W-^'^Hutc.
Rectory for years, or parcel of his Glebe, referving a Rent, and ^^'
dies, if his SuccefTor accepts the Rent, that Acceptance does not
make the Leafe good ; becaufe by his death the Franktenement Is
in Abeyance, and in no Man. And al(b a Parfon cannot Difcontl-
nue: And by confecjuence. That that he did without Livery, is
determined by his death. And it is not like to the Cafe of an Abbot,
Prior, or Tenant in Tail (2:,).
(9.) Hendon moved for Dr. C/^/,Vicar of FJallifax, That a Pi 0- ^^ll'\^^f^\
hibitlon might be granted to the High Commiffioners of Tork, for ^^^' ^ ^^
that, that thefe Articles by one Smith were, exhibited againft him,
^iz,. I . That he read the Holy Bible in an irreverent and undecent
manner, to the fcandal of the whole Congregation. 1. That he
did not do his duty in Preaching ; but againft his Oath and the Ec-
clefiaftical Canon, had neglciled for fiindry Mornings to Preach.
3. That he took the Cups and other VefTels of the Church, confe-
crated to holy u(e, and employed them in his own Houfe, and put
Barm ia the Cups, that they were fb polluted, that the Communi-
cants of the Parifh were loth to drink out of them. 4. That he did
not obferve the laft Faft ^Proclaimed upon the Wednefday) but
on theThurfday, becaufe it was an Holy-day. 5. That he retained
One Ste'venfon in one of the Chappels of Eafe, who was a Man of ill
Life and Converfation, viz. an Adulterer and a Drunkard. 6. That
he did not Catechize according to the Parifh- Canon : but only
boyght many of Dr. Wilkinfon\ Catechifms j for every of which
K n 2. 4ic
ipo Of Parfons.
he paid i ^.and fold them to thePadfhioners for 3 J. without any
examination or inftruibion for their benefit. And that he, when any
Commiilions were diredled to him, to compel any perfon in his
PariOi to do Penance^ exa£led Mony of them , and fo they were
dirmiifed, without infli6):ing any penalty upon them,as their Cenfure
was. And that he and his Servants uled divers Menaces to his Pari-
shioners, and that he abufed himfelf, and difcharged his Fun6lioa
by divers bafe Labours, o/i;?:.. He made Mortar, having a Leathern-
Afron before him^and he himfelf took a Ttthe-Pigg out cf thePtgfiyy
and afterwards he himfelf gelded it. And when he had divers Pre-
fcn'ts fent him, as by fome Fle^, by fome Fi/7j, and by others Ale^
he did not Ipend it-in,ihe invitat.'on of his Friends and Neigbhour?^,
or give it to the Poor; but (bid the Fie jh to Butchers, and the Ale
to Ale-wives. And that he commanded his Curate to Marry a
Couple in a private Houfe, without any Licenfe: And thathefuf-
fered divers to Preach, which peradventure had not anyLicenfe,
and which were fufpe6led perfons, and of evil Life. It wasfaid by
Htnden, That they cannot by the Statute of I Ehz,. cap. 1 . meddle
with fuch matters of fuch a nature, but only examine Herefies, and
not things of that nature ; and that the High CommiiTioners at
Lambeth certified to them, that they could not proceed in fiich
things, and advifed them to difmifiit; but they would not defiH:.
And the Judges (Richardfon being abfent) granted a Prohibition,
] Swfth if caufe were not fhewn to the contrary (a).
gainft Dr.clay. (^ ^'J ^ PiH*fbn makes a Lea(e for a i years, the Patron and 0>
Hatlcfs Rep. dinary confirm his Eftate for 7 years \ the Parfon dies: The Q^ie-
ftion is, Whether that Confirmation made the Leafe good for
1 i-years, or but 7 years. And it feemed to Hutton^ That the Leafe
was confirmed but for 7 years. But Rtchardfon was of the contra-
ry Opinion, and took a difference, where they Confirm the Elbte,
and where they Confirm the Land for 7 years. The Confirmation
confirms all his Effate : But where they confirm the Leafe for 7
years, That Confirmation (hall not enure but according to the
Confirmation. And that difference was agreed by Crook, and all
the Serjeants at the Barr. And afterwards Hutton faid. That that
was a good Caufe to be confidered, and to be moved again {b).
(hjTomh»Jcn's ( 1 1 .) In a Replevin: And the Title was by Leafe made by a Par-
Hei! Rep. ^" ' And. the Avwory was, That A. was feifed of the Rc6iory of
H. and made a Leafe, without fhewing that he v/as Parfon. And by
(r j CffW againft^h^ ^iJ^rt, That that fhould have been a good Exception, if it had
fVaters. Nofs not been faid in the Avowry moreover, Thar A, was feized injure
Rep. Ecclejia, which liipplies. all (,c).
and Parfonages, i^i
(ii.) During the rime of the Par/on, the Patron hath nothing
to do in the Church {d). And therefore if the Patron grant a Rent {d) 1 1 H.^4.b.
by Fine out of the Ciiurch being then full, and afterwards the
Incumbent dies, that charge fhalJ not bind the Suctffor, for that
the Parfon and the Ordinary were no parties to it (e). ^^^ 38 E 34.
(i 3.) If a Parfon would Refign, the word \_ReJigvare] is not it
fcems the only proper word in the Law for Refjgnation^ but [Re-
nunciare, Cedere, ^ Emitt&rf\ are theufiial words or terms of Re- (fj D. 13 El.
fignarion (f). Yet if a Prebend doth give, grantj yeild, and con- ^^4- b.
firm his Prebendary and the Pofleffions thereunto belonging unto "^^^"^'"^^'^'"^
the Ordinary, To have and to hold to him and his SuccefTorsin Fee, p'roperTY/"^
rubje6lingandfubmitting to him Omnia^jura by reafon thereof ^«^. to the Ecckfia-
litercnnque accjuijita ; ihele words it feemsare fufficient ^ndzmoum fiscal Court.
to a Resignation^ albeit the proper words are not therein (g): Which ^^'-"^ 10. Jac
Refignarion ought to be made to the Immediate Ordinary, and not ^ ^^""^""^^'^
to the Mediate j for which reafona Prebend may notRefign to the Rolf "^L fo*
King, for that although he is Supream Ordinary, yet he is not the 2^4.
Immediate Ordinary, and he is not bound to give Notice to the {g) Ibid.
Pvitron, as the O.-dinary ought, nor of himfelf can Collate, but is ^^^'^ ^^^^- ^
to prefent to the Ordinary {bj. IWewmentTh
E. pag. 3 J 8.
(^14.) In Trefpafs: The Cafe was. The Defendant being Incum- Hill. 2. jac.B.R,
bent of the Church of B. (M, and (j. having the Donation there- ■'^''w^^v:'/
ofj made an Inftrument, whereby Ccncejfit & Refignavit to M. d^^"^ Gayer's
omnibus ad cjuos in hac parte pertitiet adaccepandam Ec clef am [nam '^ ^ °' P^^* ■
de B. and thereupon the two parties gave it to the Plaintiff, who
being difturbed by the Defendant brought Trefpafs. The Queftion
was. Whether a Refignation of a Donative could be to the Donor,
or how it might be departed with. Refblved (i.) That thisbein.ga
Donative, begun only by the Foundation and Erc6lion of the Do-
nor ; he hath the fble Vifitatlon, and the Ordinary hath nothing to
do tiierewith; and as the Parfon comes in by the Donor, (o he may
reiloreit to him ^ and although the Prefentee, when he Is in, hath the
Freehold, yet he may reveft it by his Refjgnation without any o-
thcr Ceremony, and the Ordinary hath nothing to do with it: For
Admiffion and Inflitution are not necclTary in cafe of a Donative,
(i.) Refblved, That the Refignation to one of the parties is good,
for it doth enure to both as a Surrender fhall do. fgjRefblved,
That although the Refignation was de Ecclefia,ytx. it fhall extend to
all the PofTcflionsi
(i5> At
Ip2
(i) M. 24' Jac.
B. R. TValpole
Sc Gale, per
tur. 6c Roll.
Abrid. ver.
'Fferogative,
lit. Y-
(k) Roll.' lb
lit. L.
Pa^ch; 8 Jac.
C B.Gdudy
vcrf. Dr.
Brownl. Rep.
■par.- 2,
Trln.ai Jac.
B. R. Jer?ni7i's
Cafe.
Cro. par. 2.
Of Parfons,
(15"). At a Synod in 44 Ed. 3. a Canon was made, That the
Parfon of every Church of England (hall appoint the Parifh-Clerk.
And at another Synod held in ^n. 160 3. a Canon was made to the
lame efFeclj and yet it doth not take away the Cuftom where the
Parifhioners or Church-wardens have u(ed to appoint the Clerk,
becaufe that is Temporal, which cannot be altered by a Canon.
(i). If the Clerk of a Parilh in London hath u(ed time outof mind to
be chofen by the Vefirj^ and afterwards Admitted and S^?/orn be-
fore the Archdeacon, and he refufe to Swear fuch Clerk fb Efeib,
■but Admits another chofen by the Parfon; In this Cafe a Writ friay
be awarded, commanding him to Swear the Clerk chofen by the
VeFtry. 21 Jac. Vi^alpools Cafe. The like AVrit was granted for the
Clerk of the Parifn 01 St. Fofiers, London. Mich. 1 60 Car. B. R.
between Orme and Te»:berton(kJ. The Parifhioners of the Parifh
oi Alfhage in C<?»^e>'i?«rj prefcribed to hax'e the Nomination andE-
le6tion of their Parifh Clerk, and the Par Ion of a Parifh by force
of a Canon, uponvoidancc of the place of the Parifh- Clerk, elc(^ed
one to the Office : The Parifhioners by force of their Cuflora
ele6fed G. the Parfon, fuppofmg this Ele£lion to be Irregular, for
that it was agairtft the Canon, Sued C. before Dr. Neman Chancel-
lor of Canterbury^ and the faid C. was by Sentence deprived of the
Cltrkfhip of the Parifh, and another Clerk of the Parifh Admit-
ted. C. moved for a Prohibition, and had it granted by all the
Court ; for it was held, That a Parilh-Clerk is a meer Lay-man,
and ought to be deprived by them that put him In, and no others ;
and the Canon which willeth that the Parfon fhall have Election of
the Parifh-Clerk, is meerly void to take away t'he Cuftom , that
6ny perfbn had to Ele6l him. Vid, Stat. 15 iJ. 8. That a Canon
againfl Common Law, confounding the Royal Prerogative of the
King, or Law of God, is void; and Cuftome of the Realm cannot
be taken away but by A61 of Parliament. Vid. il Ed. 4. 44. And
it wasRefblved, That if the Parifh-Clerk mifdemean hirafelf in his
Office, or In the Church ; he may be Sentenced for that in the Ec-
clefiafllcal Court to Excommunication, but not to Deprivation :
And afterwards a Prohibition was granted by all the Court j and
held alfb. That a Prohibition lieth as well after Sentence In this
Cafe as before. And In Germins Cafe, Whereas the Church-war-
dens and Parifhioners of X. furmized they had a Cuftom to place
a Cleric there by the Eledion of the Veftry : the Parfon fixed them
in the Ecclefiaitical Court, to have his Clerk placed there, accord-
ing to a late Canon made : It was the Opinion of the Court, that
it was a good Cuflom, and that the Canon could not take It away 5
wherefore a Prohibition was granted.
and Farjonages, , 1^2
(16.) ABifhop, Archdeacon, Parfon, arc Spirirual Corporati-
ons at the Common Law ; for the Paribn (and this is meant alfb of , -
the others) hath two Capacities (/), the one to talce bim and his
Heirs ; the other to him and his Succeifors, and in that refpedt he ? t? ^' ' ^■
is fcized pre EccUfi^, If J. S. be Parfon of D. and Land be Ti^'n^^'o
granted to J.S. Parfon and his Succeffors^ and to J. S. Clerk and b. ' ' ^ '
his 'Heksj in this cafe he is Tenant in Common with himfelf ('=''') H H. 8.
(m). ' ibid.
(17.) Note, That it was agreed m Bufhies Cafe, That if a fj";')^ ^"7-3
Parfonage be Impropriatej and the Vicarage be endowed, and dif- ^ '^' P- ' 3 -
ference be between the Parfon and the Vicar concerning the En-
dowment, that fhall be tried by the Ordinary, for the Perfbns and'
the Caufe are both Spiritual : And there the Vicar fues the Parfon
for Tithes, and fuggefts the manner of Tithing, and prays a Pro-
hibition, and it was granted, and after upon folemn Argument Bujhie's Cafe.
Confultatlon was granted, infbmuch that the manner of Tithing ^'o^"^- par. 2,
did not come in queflion, but the Endowment of the Vicarage
only ; for that is the elder Brother, as the Lord Coke faid : This^ ,
was cited to be Adjudged by Coke. Alfo there is much difference be-
tween Prebends 'and Parfons; for it was Adjudged \n WatkinfonV/atkinfon and
and Man^ Cafe, That a Leafe made by a Pf ebend is good by the ^^^«'s Cafe.
Statute of ^x //. 8. for he is not excepted, but only Parfons and ^^°* P^^' ^
Vicars; and fo it was faid it had been Adjudged in Do6lor Dak'^-
Cafe.
(18. J It wil not be denied, but that the Clergy of England
have had in all Ages certain Priviledges, which the Laity never
pretended to : To which purpole there have been Laws Ena6ted
and Cafes Ruled by perfbns learned in the Laws. In An. zz H.S.
cap. 5-. it is Enaded; That the decayed Bridges in every County,
where it cannot be known who in right ought to repair the fame,
fhall be repaired by the Inhabitants of the faid County, Town cor-
porate, or riding where the Bridge is, by the Aileflinent of the
Juftlces of Peace, who may appoint Colk61:ors to levy the fame
by Diftrefs. Now the Quellion is, Whether the Parfons and the
Vicars may be charged by the general word of the InhahitantSj
and Dlftre/s taken of their Spiritual Livings ? In order to a Refo-
lution of this Queftion, it muft be premifcd. That it is moil evi-
dent, that the Clergy are by the common Law of this Kingdom a
divided Eflatc both for their Perfbns and Spiritual promotions,
from the Laity of this Land ( i j. For their Fe\-Com,Fiiz,.NB.fo.i 75-.
That Clerks fhall not be cholen Bay lifts or Beadles for the Lands
io their poffeffions, although the Land, before it came to the hands
of the Clerk, was chargedtherev/ithby tenure, (a). A Clerk ar-
* vaigned
1^4 Of Parfons,
ralgned before a Temporal Judge for Felony, may plead the Jurif-
di6lion of the Court; The Clergy- men, by rcafbn of their Re-
fiance, are not bound to the Leet, nor to follow Hugh and Cry.
C^.) That their Spiritual Livings are alfo difcharged from the gene-
ral charge of this Realms Laity,appe2rs by the Regi Her, fo.z 60 &
F.l>^.B.fo. ii-j. Tiiat Spirlcual perfbns fhall not be charged to pay
Toll, Tontflge, or Murage, but may difcharge themfelves by Writ.
Alfo the Sheriff, who by Elie Law is the King's general Officer to
ftrve Procefs in every County, may not intermeddle with the
Clergy in refpe^t of their Spiritual promotions, but return ^^a(?i
Clericus ej^ Benefiaatus inEpiJcopatu^non bjhens Laicifm fadum in
haliva mea; and then the Trocejs mull be to the Bifhop, as appears
34 H.6. & XI H.^.ThisPriviledge is confirmed to them by Mag-
na Chart a, and div^ers Grants and Statutes, viz. Articulus Cleri,
9 £. 2. cap, g. Likewife no Diftrefs fhall be taken in the Ancient
JDonations of the Church. The like Grant is made unto them by
King Ed. I . x4. Vrotejiation %. That theShcrifF or Minifter of the
King (hall not meddle with the Goods, Chattels, or Carriages of
the Clergy ; and in Tiir-veyors, 12 An. 14 Ed. there is a Statute,
that Vur'uejors fhall not meddle with the Clergy, he. Ed. l.cap. I.
I R. 2. cap. 2. I f/. 4. cap.'^. Statute Spritualties. 2. Priviledges,
Grants, Immunities of the Clergy are confirmed. So that it ap-
pears both by the Common Law and the Statutes, that the Clergy
are not to be burthened in the general charges with the Laity of
this Realm, neither to be troubled or incumbred, unlefs they be
efpecially named and exprefly cliarged by (bme Statutes. And di-
vers Statutes heretofore expreffing themlelves with the like general
words, have never been expounded to extend to the Clergy, as by
the ufage of them appears by the Statute oiWinton. An.i 3 Eliz.I.
Again, the people dwelling in a Hundred where any Robbery is
committed, fhall either bring forth the Felon, or agree with him
that IS robbed, yet hath it never been taken , that Farfons and
Vicars (hould be Contributors thereunto ; yet the words [^Gentes
demorantes'2 viz. the People divelling, are as general words as [Jn-
habitants\ In the fame Statute there are the like general words
{IVatchiKg, ^c. ~\ yet the Clergy thereby are never charged.
Alfo the Statute made for the High - ways. An. z d^ •^. P,
fi^ M. chargeth every Houfholder ; yet this general [[ Houf-
holder ] hath never been taken by ufage to charge the
Clergy, 'viz^, the Parfon or Ficar. Fitz. in his Nat. Bre.fol. 131.
faith, that a Clerk being bound in a Statute- Merchant, fhall
not be taken by his Body : And the Writ founded upon the
Statute - 5ta pie , 17 Ed. :^.cap.^. hath this fpecial Prcvifo ,
Si LatcHs fit , capias. AUb the Statute whereupon this Writ is
fourVd-
and Parfonages. i p q
founded , is genera], 'and no exception made at the Clergy.
And 3 3 H 8. cap. i. there is a Statute that chargeth all
Refiants within any County where there is no Goal, to be Taxed
by the Juftlces for the Building of one, yet have the Clergy never
been charged by reafon of thcfe general words [Reftants, &c. ]
1 £/ 1. 1 8 £^. 3. 4. 1 2?. a. I. Forthefe reafonsit is fuppofed, that
the general words in the aforefaid Queftion will receive in Law the
like Expofitlon, as the other faid recited Statutes have done ; And
the Tarfons and Vicars (hall not thereby be charged, the rather for
that the Statute fets down the Inhabitants of the County, where
certain perfons that fhould do it, cannot be known, which is to be
intended fuch Inhabitants as are chargeable to Vontage^ which Spi-
ritual perfons are not, but excepted, as afore/aid.
O o CHAR
ip6
i
CHAP. xvnL
Of Vicars, Vicarages, and Benefices.:
It The Vtcar and Vicarage defcrihd according to Law.
i. What difference hetweenVicar age and Parfonage) their feiveral
Rights and Interefts reffeBively.
3. Whether a Vicarage Endoived may he u^p.pr&pria'-ed , and-
hoiv ?
4. The Chaplain of the Vicar o/Hallifax his Cafe for his Sa-
lary.
5. Vicars may Sue in the Ecclejiafiical Courts for Tenftons.
0, How a Vtcarage may be created.
7. The Refolution of Court touchingtheVicar\Tithes, in reference
to the Parfons Glebe.
8. Cafes in Law touching the Parfons and the Vicar sTtthes^where
Compoftion or Prescription is in the Cafe.
9. Who is Patron of the Vicarage,whether theParfonor thePa'^
tron?
10. In what Cafe the Vicar may Sue in the Ecclejiafiical Court
for an addition or increafe of Maintenance.
11. In what cafe a Vicar age Jhall determine-yand whatjhallbean
union of Parjonage and Vicarage.
li. Benefice how defined bjtheQanon Law^ with the Reafons
of that Definition.
15. Benefices Ecclefiafiical extend to Ecclefiaflicalihgnities by ^,
the Canon Law, but not fo within the Statute of li H. 8.
14. Of what an Ecclefiaffical Benefice confifis according to the
CanoniHs.
I jr. Cautionary Laws relating to Benefices \ by what marks or
figns an Ecclejiafiical Benefice is known at the Canon Law.
1 6. The common difiin^ion of Esclejiafiical Benefices at the Com-
mon Law.
I J. A Caje in Law touching a Vicarage, whether Dijfolvedyor
not ?
i8. Vicarages of Two forts, how compared to a Comaicndam.
Ijl.) T TlCAR h he who hath that Spiritual Living called a Vi-
V car age J being no other than a certain part or portion of a
Parfbnage, allo^yed to theMinifter for his Maintenanccjiatroduced
Vicars^ Vicarages^ and Benefices. \^j
at that time when Impropriations firft began ; both which Livings
as they are Commonly Called the Church, fo both (iich as lerve in The Parfo»Pe^
them, are called the Patron's Clerks. The F/V<afr is ulually appointed ^*''" '^^'^ ^^^'-^
and allowed to fcrve the Cure, by him who hath the Impropriation ^"^ '"^^' '^^^^^'
of the Parochial Tithes^ for at the Original of fuch Impropriations 2. annul?'' -
a certain portion of the Parfbnage was allotted and fee apart from Omnis Vica'/
the reft to rnaintain the Vicar, who was to (erve the Cure {a) ; So na eft Eccldi4»
that now the Prieftof a Parochial Church, where the Predial Tithes P^'^ ^'^^^^ '"^^^»
are impropriated, is called the Vicar, h. e. 'vice Rechris. And it ^^'"^l Cale »-
leeras Anciently they did (bmetimes ftyle therafelves P^''/'^^^'''^ f^^- Bul/4 par^ ^^
carsy becaule every Vicarage, Corporation-like,hath a conftantSuc- (-!?> P]ow.45>c.
Ceffion.
(a.) A Parfbnage and a Vicarage(as appears in Button and Wade's
Cafe) are two diiHn6l Beneficesi and both have cur am animarumy
the Parfbn habitmlitery the Vicar aBualit^r', and although the Vi-
carage be Spiritual, yet the Corporation Is Temporal, which the
Pope could not difTolve (h): And in the Cafe between Parr^ and CO Mich. id.
Banks, it was Refblved, That after the Statute of 3 i H. 8. which Jac.B.R. Brit.
bade Parfbnages Lay- Fees, the Ordinary could not diffolve a Vica- ^^"^^^ rVade's
rage, when the Parfonage is in a Temporal hand ; for that were to ^.^' ™' ^'
deftroy the Cure (c). Vicarages being originally endowed out of^ig.
Parfbnages, the Vicar was to have aid of the Parfbn, if he were (c) izjao. in
impleaded for any thing touching the Vicarage, and the Parfbn ^^^ Excheij.
was fubje(5t to every charge of the Vicarage (/). And anciently the ■^^'^^^' ^^^
Vicar was not held as Tenant of the Freehold of the Glebe of the h^"j ' A^'
Vicarage (e), but the Freehold thereof was in the Parfon, and the verb, 'y^ppn'.
Vicar could not maintain an Aflize in his own Name (/). But now p-istmn.
it feems the Freehold of the Glebe of the Vicarage is in the Vicar ^^^^3 * H.<?. i jo
himfeif, and not in the Parfon, for that the PofTdfionsof the Vicar ^^J. Tdnjenon.
and Parfbn are fevered, and each of them fhall have feveral Writs I ^^g ^^J
concerning their refpe6tlve Rights, and fhall not joyn in ohc Writ cf)i2. E. ?.
{g): and the Vicar fliail have and maintain a Writ of Juris UtruM Fitzh. tit.
again ft the Parfbn, who is the Patron of the Glebe of the Vica- ^"^^- ^^^;
rage, for the fame Glebe (/»), This Vicarage being a certain por- p^ Pa^^'^on s ^
tionof a Parfbnage allowed to the Vicar for his maintenance as /-/^wf^j^^* '°
aforefaid. Is In fbme places a fiim of Mony certain, in others a part
of the Tithes in kind, commonly the fmaller Tithes, and in lome
places a part of the great Tithes alio : And Vicarage Lands occu-
pied by the Vicar, do in fbme plaoes pay no Tithe to the Par-
Ion (i).
(3.) In TVard's Cafe it wasfaid by Montague, That^ Vicarage,.. ^ ■, ,.
endowed might be Appropriated, but net to the Parfon, to which ^^ Cro 2 ' V
Haughton and Doderidge agreed, :5 1 H.6.Fitz,.tit.indica'utty Is,that Bra DHlr.cs.
"fuclja Vicarage may be'diiTolved: an Appropriation may be by the 10
' O x) % Kine
Of Vicars, Vicarages,
(k) Tiin. 1 6.
Jac. B. R.
Nicholas
and W. Ward's
Cafe.
Poph. Rep.
(0 Trln. 1- ^v
Car. G. .B.: '
The Vicar of
Hallifax his
Cafe.
Hetley's Rep.
Penjio?!.
{r») Qoodroin
verf. Dean and
Chaprer of
IVeUs.
Noy's Rep.
(ji) KoWs
Abridg, verb.
F/caras-e.
(o) Tna. 58.
Eliz. B. R.
Blaico Sc
Mar [ion.
Rol. lb. verb.
Vicare ejidoTD-
fp) Trin,7i
jac. B. R.
Roll. ib. nu, 4..
King (ole where he is Patron, but there is no Book that it might be
by the Patron fole. Grindons Cafe in V low den, and 17 E. :j . 5 9. an
Appropriation cannot be without tiie Kings Licenfe. In that cafe it
was agreed, That Tithe Lamb and Wool was included within frnall
Tithes (k), which Tithe belongs to the Vicar.
(4.) A Chaplain that was under the Vicar of Hallifax, Libells
againft him in the Ecclefiaflical Court for his Salary. And hepre-
fcribes, That the Vicar ought to pay the Chaplain four Pounds a
year j and the Vicar prays a Prohibition. (l) For that he alledges,
That the Chaplains were E^Vi^/e by himfelf , and becaufe that
Chaplain was not EleBedby him, he is not Chaplain ; but he is in
of his own wrong, Sec. (x) That Prcfcription for Salary was Tri-
able at the Common Law. Telverton, The Salary is Spiritual as
the Cure it felf is Spiritual, for which it is to be paid. As the Cafe
in Dyer, 'y^.Tl.^. But a Prohibition was granted, untill it was deter-
mined to whom the Eleftion appertained ; and that now depends
by Prohibition in this Court (/}.
(5-.) G. Vicar Sues in the Ecclefiaftical Court the Dean and Chap-
ter of Wells, Parfbn of a Church, for a Penfion, and they pray a
Prohibition,and it wasdenied^ For that Penfion is a Spiritual thing,
for which the Vicar may fiie in the Spiritual Court (w).
C6.J The Parfbn, Patron, and Ordinary may Create a Vicarage
and Endow it without the Aflent of the King ; but the Ordinary
cannot Create a Vicarage without the Patrons Aflent. 6 E. 3. Quare
Itnpedit , 1 45. And in or during the Vacancy, the Patron of a Par-
fbnage and the Ordinary may Creates Vicarage. 8 R.i.Annuitj 5 g.
fer Belk. And before the Statutes o[ Diflolutions, a Parfbn Impro-
priate and the Ordinary might Create a Vicarage, for the Parfbn
was Parfbn and Patron. ii';V/(;?).
("7.) It was K^{b\yQ6 fer Curiaw, That if a Vicar be endowed ant
ofaParfbnage of all the white Tithes growing and renewing with-
in the Parifh upon all the Land of the i-^arifh ; the Vicar ihall not
therefore have the Tithe of the Parfbn '3 Glebe, for that is excepted ;
nor the Tithes of the Land, which at the time of the Endowment
of the Vicarage was parcel of the Glebe, but fince fevered from the
Glebe, for that at the time of the Endowment that Land was ex-
empted outof the Endowment (<?).
(8.) If there be a Compofition made between the Parfbn and
the Vicar, That the Parfbn fhall have all the Tithe of Corn- and
Hay, and the Vicar the oiher Tithes, and afterwards the Parifho-
ners fbw- certain Lands with Saffron, or the like, the Parfbn fhall
not have the Tithe of rhe Saffron^ but the Vicar. By Coke Co Ad-
judged (p). It hath alfo- been Refolved, if a Vicar be endowed of
the Small Tithes by Prcfcription, and *af*-erw,nrds -the Land VA-hich
had
W
and Benefices. i pp
had been Arable time out of mind, is converted from Arable, and
there grow fmali Tithes, the Vicar fhall have them, for his Endow-
ment doth not go to the Land,but Minutis Decimis in every place
within the Pariih {(f). And if a Vicar be endowed of the third part («) Pafchl ?8.
of all the Tithes of a Mannor, he (hall have Tithes as well of the Eliz. B. R.
Freehold as Copyhold, for all makes the Manor (r). inter Bedmg,
(9.) The Parfon and not the Patron of the Parfonage, of Com- /^^^ and /V^^^.
mon right is Patron of the Vicarage, for that it is derived out of the ^ r'h'^
Parfonage. Dubitaty.r i 7 £. 5. 5" i. b. Centra, j^JE. 2. Quare impedtt^ andk/?.
165'. fer PaJJ'. And ii a Parfon Appropriate create a Vicarage, he Adjudged.
Ihallbe Piitron thereoj*-, Ij E.-^. 51. he is both Par/on and Patron
(s). So likewife if there be a Vicar and a Parfon Appropriate,theOr- (^) Roll. Abr.
dinary and the Paribn Appropriate may in time of vacation of the ^'^^'^- ^'^'^^rage
Vicarage re-unite the Vicarage to the Parfonage (t). yJ ^^^^' 7-
(10.). If there be a Parfonage Appropriate in an Eccleiiaflical per- stafo'r/s
(on, which never came to the King by the Statute of Monafieries, Cafe.
and a Vicarage endowed be there alfoj and the Parfon makeaLeafc
of the Parfonage for Lives,according to the Statute of 5 2 H8, The
Vicar may in that cafe flie in the Eccleliaftical Court againff the Par-
fon and his LelTe^ who comes in by the Statute for Addition of
Maintenance, and the Ordinary may well compel them to increafe
his Maintenance, for over all Appropriations fuch power of increas-
ing the Vicar's Maintenance was refcrved to the Ordinary, and the
LefTec comes in fubje6l to that charge («}. • («^ Hill. g.
( 1 1 .) If the Vicarage be diminiflied, he fhall have more of the ^^^^' ?" ']"
Parfonage, if what remains be not fufficient. And if the Parfonage be and Thorn
impoverifhed and fb decayed, that the Parfonage by it Ccl^, nor the borough.
Vicarage, have fufficient to fiiflain them, in that cafe the Vicarage
fliall determine and be reflored to the Parfonage : And to this the
Doctors alfb do accord (w). It hath been alfb held,if a Parfon Appro- /^v , jj ^
priates, who is Patron of the Vicarage of the fame Church by Agree- Roll.' Abr.
ment between him and the Ordinary,who prefents the Vicar to that
Parfbnage,it isan union of the Parfonage and Vicaragejbut if aLefTc e
of a Parfonage pr^fent the Vicar to the Parfonage, that fhall not
bind the Leflbr {x). And it there be a Vicarage and Parfonage (;md ^^''> '^+ E-3- 3 ?•
both void) and one prefenthis Clerk as Parfon, and heisfbinduiStcd / .t'^ t,'^* V'
that fliall unite the Parfonage and Vicarage again (^). And in cafe ^V/-' e -^ <^«i
that there be a Vicar Endowed who is Prejemati've, and alfb a re m/j>e(//r?
Parfon Prefe7itatiz/e, it feems that the Parfon hath not the Cure of K^y./'f P'^f
Soulsj but the Vicar {z).
(ii) Beneace-
200 Of Vicars^VicarageSj
(ii.) Benefice [^Beneficium} according to a general acceptation
may comprehend all Ecclefiaftical Livings, be they Dignities or
other, as in the Statute of 15 R^l. where they are divided Into
(•) 13.R. 2. EleBi've and Donative {a): But according to a more ilri^t and
St. z. cap. 2. proper acceptation, Vurepus leems to give It an apt definition ,
where he (ays, it is Res EcclefiaHica, cjua Sacerdoti -vel Clerico, ob
(b) Dure7i.de Sacrum MmiBerium utenda^in perpetuPtm cencedatur (Jf). \_Kes~\
Bcnef;iib. z. becaufe it is not the Minlftry it felf or the Office, but rather the
''*P- 4- profit thence arifingjthat is, the Benefice. [Ecclejiafiica} becaufe fuch
. profit is dedicated to God and his Church* [Sacerdotij d^c. ] be-
, caufe where a thing Ecclefiaftical is granted to Lay-men, it is hot
properly laid to be a Benefice ia this ienCe. [Ob Sacrum Minifie-
^ riunf\ becaufe as Dedicated to God, they are for the ufe of fuch as
> wait on his Altar. [Utenda^ becaufe they have rather the Ufii-
fruit thereof, than any Fee or Inheritance therein. [In perpetuum]
becaufe they are annexed to the Church for ever. Benefices with
Cure of Souls feem moft properly to be the Tarfonages and ^/Vi?-
r^^ej of Parochial Churches. Sir H. Hobart Chief Juftice, mColt
. andG/tfX'er's Cafe againft the Bifliop oiCo'ventryanA Litchfield^GiySf
(fpeaking of the Statute of ii H.8. cap.i.^.) That BIfhopricks are
not within the Law under the word [Benefices] : So that if a Parfbn
take a Bifhoprick, it avoids not the Benefice by torce of that Law
of P/«r^//>w, but by the Ancient Common Law, as it is holden,
II H.4.^0.
(15.) This word Beneficmm Ecclefiafi^icum extendeth not only
to Churches Parochial and the Benefices thereof, but alfo to Digni-
ties and other Ecclefiaftical promotions^ as to Deanries, Arch-
(c) Coke's Inft. deaconries. Prebends, &c. (c). Ltndw. de vit. & bott.Cle. c. Exteriot.
?^V ^'v^^' ^ ' * ^^'" Edw. Coke affirms, that it appears in the Books of their Law (</}
29 E^ * ^* ^^' That Deanries, Archdeaccnries, Prebends, f^c. are Benefices with
10 E. 3. I. Cure of Souls ; but they are not comprehended under the Name of
Regift. J 8. Benefices with Cure of Sculs within the Statute of a i H 8. by reafbn
21 H, 8. c. 1 3- of a fpecial Pro'vifo\\w\\\c\-i they had been, if no fuch Pro'i.-ifo had
Tfi f "^™" ^^^^ added f, viz,. Deans, Archdeacons, Chancellors, Treafurers,
CoUegi/fte or ^^^^^^^^^rs. Prebends, or zParfon where there is a Ficar endowed (^ej.
Cstkedral ■. r, .
' Church, cr avy Pi^rfoxiage -with a Ficar indorsed, cr any Benefce ferftfuaUy Impropriate, are mt
fjencfices with Cure of Souls within the Stat, of 2 1 H. 8. againfi PluraJites. {e) Co. uhi fu^t-a.
14). The Canonifts do hold. That an Ecclefia (^ leal Benefice con-
fifts ®f the Sacred Funftion, and of the Provenues thereunto be-
(/) Czn, ft cfuis longing (/); It is a diftinft portion of Ecclefiaftical Rights joyned
»i|;Vfm>, i.q. 3^. to tfje Spiritual Fun61:Ion, and until it be fet apart, feparate , and
diftinguifhcd from temporal Interefts, it is not properly an Ecclefi-
aftical
ana Denejices, 201
aftical Benefice; it is termed a portion, in that it includes Fruits, jfbr^
a Benefice without Fruits cannot propetrly be Co called.
(l 5- J. By the Jus Commune no man can at once and at the (ame
time poffels two Beiiefio^s with Ciire of Souls, as incompatible. "
Tot. dscif. Rot. 445'. tit.de Trah. in novis. Non datur Beneficinm
nif propter Officium, he that performs not the one,ought to be depri-*
ved of the other. C, fin. de Refer ipt. in 6. Can. Eof. Cam. fi^uis
Sacerdotum Si. difiin^. All pecuniary Contrails, all mercenary
Trading and Merchandizing for Benefices is to be abhorred; Eccle-
fiaftical Benefices are of fuch a Spiritual Conftitution, that they are
not capable of being bought or fold ; they fall not within the walk
of human Commerce,but ought to b6 conferi-'d '^r^/-/j. And for Non-"-
relldence the Parlbn ought by the very Letter of the Law to be de-
prived of his Benefice and the Fruits thereof, c. Uni de Cleric, non re-r
fiden, in 6. Panormitan oblervcs Six figns whereby an Eccleliaftical
Benefice may be known : As (~'i). That according to the Jus Comr
mune it ought to be beftowed by one who hath a right and power
in him (b to do, meaning the true Patron (i).That he who doth give
or beftow it, do referve nothing thereof or therein for himfelfjdireil:-
ly or indire6lly (9).That it be given purely as aprovifion and main-
tenance for the Clerk (4). That it hath ever fbmething of Spiritu-
alty annex'd to it C5). That in its nature it be perpetual. (6) That
all manner of Contrails and Bargains concerning it be utterly re-
je(5i:ed.Panorm. Co»/^/. 47. Anchor, dc ReguLprim. dereg. jur.in 6.
q. c^ Decius in Rub, de Refcript.
(16.) Whatever is enjoyed as a Benefice, is had and obtained ei-
ther by way of Title, or Cahonical Inftitution ; Ltttd. de cohahit^ '
Ck, df Mulier. c. ut Clericalis. 'verb. Beneficiati. Ecclefiaftical Be-
nefices being commonly diftinguifh'd mtoFreJentatives and Donati-
ves; for a Parochial Church may be Donative, and exempt from all
Ordinaries Jurifdi6tion. For if the King doth found a Church or
Chappel, he may exempt the fame from the Ordinaries Jurifdi6lion;
in which cafe the Lord Chancellor and Lord Keeper fhall Vifit the
fame. 20 £.5. Excommeng. 9. ai £, 3. 60. Parjons Law., cap.zS.
Or if the King by his Letters Patents doth Llcenfe a Common per-
fbn to Found a Church or Chappel, exempt from the Ordinaries
Jurifdi6lion, the ftme fliall be Vifited by the Founder, and not by
the Ordinary. 6 H.'^.A^per Keble, 8 JJ^.r<^.F.N.B.4.z. ace. And if
iuch Clerk Donative be difturbed in his Incumbency, the Patr6n or
Founder fhall have a Quare itnpedit Prafent are j^nd declare upon the
Special matter. But if a Patron of a Church Donative doth once
prefent unto the Ordinary, and his Clerk be admitted and Inftitu-
ted, it is now become Prclentable, and it fhall never be donativ^e
after, and then the Ordinary fhall Vifuthe fame, '^froxie fhall be
ao2
Of Vicars, Vicarages,
(^)Co. T, par.
Inft. ;44- Sc
zU.6,z6.
(h) F. N. B.
3 5.E.
(OCoke, 1. 3.
fol. 75. b.
(k) F. N. B.
£<?. 33. c.8c
4Z. b.
<;) Cowcl
Interpr. verb.
Donative.
Mich. 1 6 Jac.
B. R. Britton
and Wade's
Cafe.
Cro. par. 2.
paid-, and Laple fhall incur to the Ordinary, as in all other Benefices
preientable (g) ; but fo long as it remains Donative, it is without
the Jurifd'£i:ionof the Ordinary. For a Donati'vels a Benefice meer-
ly given and collated by tbePatron to a man without either Prefen-
tation to, or Inftitution by the Ordinary, or Indu6lion by his Or-
der (/j). All Biflioprlcks were anticntly Donative by the King (ij :
and it isfaid, that there are certain Chauntries, which maybe given
by Letters Patents (k). The Original Donatwes in England are
fiippoled to be from what Mr. G«/w« mentions in the Preface of his
Readings, vizj. That as the King might anciently Found a Free
Chappel and exempt it from the Diocefan's Jurifditlion : So he
might alfo by hisljetters Patents Licenfe a Common Parfbn to
Found fuch a Chappcl,and to Ordain that it (hall be Donative and
not Prefentable, and that the Chaplain fhall be deprivable by the
Founder and his Heirs, and not by the Bifhop (/). Whether fuch
Donatives are properly Befiefices Eccle/iaf Heal may v/c\\ admit of an
Enquiry; for where Petr. Gregorius fpeaksof Chappels Founded by
Lay-men, not approved by theDiocefan, nor by him as it were Spi-
ritualiz'd, he there fays plainly, that they are not accounted Benefi-
ces, nor can they be conferred by the Bi(h«p; but the Founders
and their Heirs mey give fuch Chappels, if they fb pleafe^ without
the Bifhop: Tetr.Gregor. de Benefic. cap. 11. nu. lo. c^ Guid.
Taf. Decif. 187. And Lindwoodmdkes a very prolix queflion on the
fame reafbn, whether St. Martins Le Grand Lond.be Ecclefiafiicum
Beneficium, or not , Arguing it Tro and Con, but concludes in the
Affirmative. Lmdw. de Cohab. Cler. ^ Mul. cap. m Clerica-
ls.
(17.) The Prior of D. was feized of the Advowfbn of the
, Church of JV". appropriated to his Priory, and alfb of the Vicarage
of N". endowed with finall Tithes: The Appropriation and En-
dowment were both in the Time of King jF^^^j and continued till
the rime of Hen. 6. when the Pope granted by his Bulls, That the
Prior fhould appoint one of his Monks to officiate the Cure, who
fhould be removed ad nut umPrioris: The point was, whether the
Vicarage was diffolved? Refolved ("l) That a Vicarage Perpetual
could not be diffolvcd after the Statute of 4 H. 4. and that the Pope
could not make any Ordinance againfl that Statute, nor Difpencc
by his Bulls with the Law,though they tend in Or dine ad Spiritua-
lia (i) There were no words that amount to a DifTolution, but
the words only are. That the Vicar fhould be ad nutum Prioris.
(3) The Parfonage and Vicarage are two diftin(3: Benefices, and
both have Cur am animarum, theParfbn hahitualiter,and the Vicar
aSlualiter, and although the Vicarage be fpiritual, yet the Corpo-
ration is Temporal, which the Pope cannot diffolve. (4) That in
tkis
and Benefice s> 20^
this cafe the Vicarage was not diiTolved: vuL i^Jac.'m the Exche^ """"*'""
cjuer, Parry and Bank\ Cafe accordingly, there Vouched.
^ ( 1 8.} In the Canon Law there are t v?o forrs of Vicarages, viz.
Vkaria Temporalis and Vicnrid Perj)etua] The Ficaria TeiMporalts Bnkc^^ dc
is compared loi\\e Cowmen da Temporalis^ For that fuch Temporal Coii-jmeml-f.
Vkarnon habit Titulum, fed fervit alieno iiomim^ & proprie Cur am P^^'5 ^^?"
non habet: otherwife it is de Vicaria perpetua, ^h^ efi mcomfatibtlis ^'^' ^ ''
cum alio Beneficio, i^ habet Car am animariim, & talis Ficarius
habet Tttulum Canonicum\ And a Quare Impedit lies againft luch
perpetual Vicarage. F. N. B. 3 ^. h. RegiJL ^i.a. And fuch a Vicar
fliail have a Juris Utrum of Lands annext or given to him in per-
petuity, by the Statute of 14 Ed. 3. cap. 1 7. vid. 40 Ed, g. 28. b.
y/here Fmchden faid, That although it had been held, that a Vicar
fliouldnot have Ai5lion of his poffeiiions againft any perfon, yet that
now the Law is changed in that point; and good reafonvwhen he is
endowed to him and his SuccefTors in perpetuity.
Pp
CHAP.
204
CHAP. XIX.
Of Aih'ovpfons.
1 . Adnjowfon, "what ; and why fo called j
2. Advowfons twofold.
3. The great Antiquity of Advowfons) the Original thereof.
4. Hovj it Tvas in this Kingdom under the Saxons.
5. The -word Advowlbn applicable toother Ecclejiafical Founda-
tions , as well as Churches ; what the Famous Lindwood
was.
6. Advowjons are Temporal, not Spiritual Inheritances.
7. Reafonsin Law, proving it to be a Temporal Inheritance.
8. The difference between Ad'vowfons in GroJJand Appendant.
C)^ How Advowfon Appendant m y remain in the King as in
Grofs.
I o. By what words in a Grant an Advcwfon may pafs, ernct..
1 1 . How an AdvowfonrKay he recontinued to the Rightful Pafrufi'
where he was oufled by Ufurpaticn.
II. A Cafe in Law touching three Avoy dances of a Church
granted to one man.
1 2- A ^ueffion in Law, whether uponfuch matter of FaB an
Adi'owfon remains Appendant .^ or ?JOt ?
14.. Advowfons are de'vifable by VVill , as well as grant able by
Deed ; what Actions may run in prejudice to the Adz/ofony.
or not.
] 5". Whether an /Idvowfon maj be AJJetsy and under what
words it may pafs or not?
16. A Cafe in Law touching the Advowfon of a Vicarage,
ly. In what Cafe the Writ of Right of Advowfon lies, or not.
1.8. In ivhat cafe theCrown jhallbe put to that Writ, or not, in
cafe cf Ufurpaticn by a Common perfon.
3.9. A point in Law,whether the King or his Grantee fhall have
the Frejentation, where the King having a Aiannor with the
Advcwfcn appendant-, the Church void, grants the Manner
with the Advfwfon.
ao. Of Advowfcns therearethree Original FFrits at the Common
Law.
XI. The Advowfon of aVicar age, whether it belongs to the Fa-
trow or the Parfen.
%l VFktler^
Of Advovpjons. 205
12. Whether an Advowfon may fro^erlj be [aid to be a Demefh;
fe-veral waiters of Law in reference to Advowfons Appcn-
Jant and in Grofs, in refpeS} of the King and Common per-
Jons.
z g . Whether a Donative in the Kings Gift may be with the Cure
of Souls ?
1,4.. Whether by the Grant of a Vicarage the Advowfon of the
Vicarage P^all pafs ; The grant of s next Avoy dance during
an AvoydancCf /j void.
(l.) A 2)x^.72''/o« isa kinJ ofReveiTionary rightofprcfentaci-
/.,\ on to an Ecclefiaftical Ecnence in a man and his Heirs
JL JLfor ever. It is the fame which the Canon Law under-
ftands by 'fits Pratronatt/s, or ihcR\ght which a man and his Heirs
have to prefent their Clerk to the Ordinary, for a Parfonageor o-
ther Spiritual Benefice when it becomes void ; and he in whom
fuch Right refides, is called the Patron (<?^. Jus Tatronatus eft Po- .. 'Y^xm Lavr
teHas Prafentandi altejuem Inflituindum ad Beneficium Ecclefee y^xb-Advowfon
Simplex ^ v ac an s, Wo^xtw^. de Jure Patronat.JusPatronatus efi Weftm.z.i jEd
jus Honorificuw, Onerofum^d^ Utile. It is a Right to prefent to the 3- >'•
Bifhop or Ordinary a fit perfon, by him to be Admitted and Infli-
tuted into a Spiritual Benefice when it becomes void. The unlawfiji
pofTcfforis the Ufurper, againft whom only lieth three Writs ; one
of the Right, as the Writ of Right of Advovfon; and the other two
of the PofTeffion, As a Quare Impedit, and Darrein Prefentment.
And the Incumbent, as to his Right for his Redory, harh the Wiir
o{ Juris Uirum. And Advowfon is not H^reditas cnrporata, as a
MefTuagf , Land, or Paflure, &c. But it is Hdreditas Incorpcrata, as
Ways, Common, Pifcaries, Courts,&c. which are and be Append-
ant to Inheritances Corpomie.AdvowJonh a kind of Baflard-French
word, fomtimes called Advocatio Ecclefa, either becaufe the Pa-
tron thereofjclairaing his Jus Patronatus therein, Advocat fe m his
own Right unto the fame, eamcjue efj'e jui c^uafi Clientis Loco \ or
rather becaufe the Patron in his own Right Advocat alium to th^
Church being vacant, and prefents him unto it Lccoaltertus, veiutt
Defuncii Qi). Thence called fometlraes Patronij fomtimes Advo- ^^^ skene. dc
cati -J for they who originally obtained a Right to Prefent to any verb. Sig. .
Church, were either the Founders, or Builders, or.Bcnefa6lors of the
fame. Decretal, c. 4.C^24 de jure Patronat. & Plow. 495. Dy. 48.
Co. 1.101.4.37.6.59. Litt. 119,120. PatronumfaciuKt Dojfit.'^^di-
fcatie, Fundus. And althoua^h Advowfbns are now, as other Tem-
poral Inheritances, grantable b}' Deed, and fo in that icipcvSl coj^i i-
zabie at the Common Law,yet in as much as they are the lame which
thi (^anon Law calls Jus Patronatus^xt cannot be denied, but thvit
P p 2 ihfv
2o6 Of Advowfons, 1
they arc within the Ecclefiaftical Jurifdidlion ; and therefore al-
though the Patron may have his A6tion againft the Ordinary in a
Temporal Court by a Quare Impdh for rejecting his Clerk, yet
the Ordinary may Dtcrcea Proccfsie Jure Tatro72atus m the cafe,
to enquire by a Mixt Jury of Ecclefiaftical and t.ay-men touching
the fiid Advowfon or Right of Patronage, according fo the Laws
andCuftomsof the Church.
(i.) There Is an ufualdifierence taken, •bet^Ye-env/i'^i:r^/w»?/?Ji^.
tatts Ecclejia, and Medietas .Ad'vocatioms Ecclejia: The former \s
where two Patrons be, and every oi them having Right to Prefent
a feveral Incumbent to the Bilhop, to be admitted into one and the
iame Church, (for divers may be feveral Par(bns,and Imve Cure of
Souls In one ParifhJ and fuch Jrhowfon Is alike in either of thefe
Patrons, but every of their Prcfcntments Is to the molty of the fam?
Church J and therefore it Is called Ad-vocatio Medietatis Ecclefia^,
or as the cafe may hcyAd'vocatio Tenia partis Eccle/ia^and the like.
The later, v\z. Medietas Ad-vocatioms Ecclejia^ Is after partition
, . between Parceners; for although the Advowfon be entire amongfl
then^, yet any of them being difturbed to prefent at his Turn, fhall
have the Writ of Medietate^ or of Tenia, or of Quart a 'parte Jd-
'vocationis Ecclejia, as the Cafe is. And this difference is t.iken and
obfervedonly In the Writ of Right, which is altogetlicr grounded
upon the Right of Patronage. But In the Quare Impedit, which
is only to recover Damages, no fuch diverfity Is confidered , but
the Writ is general, Prafentare ad Ecclefiam. Dodderige of ^^-
'vowfons, ,'Le£i.^. Of Advowfon? there are two forts, The one that
in Grojs, which Is Sole or Principal, not adiicring or belonging to
any Manner, or to any part or parcel thereof^as of the Right thereof-
The other Appendant or ■Dependant,or depending on a Mannor.as
appertaining or belonging thereto, vviiich is by Kitchin termed an
Incident that may be feparated from the Subjecl. Again, Somtimes
2f Ed. 5. ^^^ y^^^ Advowe or A-vo-we is alfb ufed for him who hath a Right
Stat. 5.C. Unk. Jnhis-Qwn Name to prefent to a Benefice or other Ecclefjaf^Jcal
Living, where you have alfo (Ad'vowe paramount) or the highefl
Patron, an Appellation peculiar to the King. So that this Advoca-
tiis is he to whom fuch /wx ad'vocationis alicujus Ecclefa belongcth,
as that he may Prefent to the Church In his own, but not in ano-
{c) Fleta, 1. s. ^^■'^''5 Name U). And Fttdjerbert ufeth It In the fime lignlfication
c. I 4 Sect. I . (.d). ; ';
r/"^^" ^' "■ ^"-^ Confonant to the practice at this day touching Advowfcns,
■'^' was the Emperour's No'vel, Decreed about I loo years fince, to-
wards the end of the Fifth Century to this purpofe, That if any
man jJoali ereclan Oratory, and his defirebe toFrefent a Clerk there-
upt.c, bfhimfelforJjis Heirs', if the/furmflnhe Clerkwith a Qon:-
peU7K)',
Of Advowfons. 207
fetencfy and Nominate to the Bijhopfuch as are worthy^ they may be
Ordained: But if thofe who are intimated by them be rejectedby the
Canons^as unworthy of the Minijlry, then let it he the care of the moft
Re'verend Diocefan of the f lace, to prefentfuch as in his difcretionhe
JJjall conceiz/e better of^e). And Panormitan clearly Interprets the ^g-. j.j . j
in the Church, for that with the Diicefans confent he hath Founded,
Built, and Endowed a Cliurch, he harh gi^^en a piece of Ground,
C. nobis c. dejur. Patronat. and ere6led a Church thereon, 1 6.q.j ,
c. Monajlerium, and Endowed it, C Fia mentis, ibid, and was
therefore cjualiiicd with the Right of Patronage, And indeed the
Diocc(;ins con(ait herein is fb requifite, that by the Canon Law ic
Teems fcarce fcazable for a man to be a Patron without it. Si quis
Ecclejiam cum ajjcnfu Diccefani confiruxit-i ex eo Jus Vatronatus ac-
cjuirit. C lenient. c. Nobis deJur. Patron. And when a Church fb
ere6led is by the Confccration thereof aclually delivered up ?.nd
made over (as it were) to God himfclf, it thenceforth ceafes to be
of any mans property, or of any Human D<?;w«i(5« j for Quod Di~
'vini Juris cfi, id nu Hi us ef in bonis: § vulUtis, Infl. de Rer. Divif
And by what is Recorded in the LifcofBifhop Ulric/z, it Oiould
feem as if the Right of Presentation originally were in the Diocefan;
for the Author there fayeth, That if any Erected a Church, theBi-
fliop Gonfented, Si legitimam Ecclef^ dotcm in manum ejus Celf-
tudinis dare non differret, d^c. And after the Endowment and Con-
fccration thereof, the care of the Altar was committed by him to the
Prieil, Q.ndthc Advowfon firmly conveyed to the lawful heir,by the
putting on ofaRobe; u^uthcr wV^ Udalrici, c. 7. p. ^z, Auguf.
rindel. 1 5" 9 5* But the Bifhops underflanding this as a matter more
of Care than of Power, as appears by thefe moderate exprelTionsof
JSfominare,Pr£efcntarej or Ccmrficndare,they v/ere willing the Lay-
Patron (for his better encouragement to fuch Pious works) (hould
fhare with them in this Priviledgc, which Panormitan calls Jus
Lonorificum, yet fo, as that this transference of the Bifhops unto
Lay-Patrons, fhould flill remain under fuch a Limitation, as that ic
fhould be neceffary for the Patron to have recourfe to the Bifhop
for the qualifying his Clerk for the Re£lory by Ordination ; And
the Bil^op''s prudent compKance with Lay-Patrons in this matter
was not in thofe days without good reafbn, if we confidcr v/hat a
paucity of publick Churches there then were, infbmuch that for
want or inflead thereof, they frequently then faid Prayers under a
Crofsin the open Field, as is reported ot our own Anceftors in the
, Peregrination o^Wilibald-^Sicmos cjl S axonicagcntis^d^cnon Eccl.
fed
20 8 Of Advowjo?is.
fed SanBa Cruets Signum, (^c. diurna Orationis fedulitatemjclent
habere. Hodaperic. Hierofoljm.WWha.d. Extat ad CanifiUnt^ Tcm,^.
Anticf. Le^.par. z.pag.^^6. Edit. Ingolfl: 1 60^. Yea, and where
perhaps fbme Churches were, many of them were no better than
thole mentioned by AJJ'er BIfhop of Shirhurne in King Alured\
days, which were of Co mean a n:ru6fure, that frequently the wind
entring per parietum rimulas, did blow out the Candles ftt before
the Reliques ; which gave occafion to that ingenious Prince to teach
us by his dexterity tlic my liery of making Lanthorns Ex Lignis d^
Bovina Cornibus.
C4.J In the Infancy of the Chriftlan Faith in this Ifland under
the Saxons, feveral particular Lords Grand Seignon'es (Regis ad
Exemplu7n) eretled particular Churches , and having Endowed
them with Lands, reitrvcd to themfelves and their Succcffors for
ever a right and power to confer them on (uch as were meetly cua-
lified for the fame ; And this they did in imitation of thole Kings,
who then Reigning here, ere6led Cathedrals , AbbieSj Priories,
InftkVo/''' Churches, <?cc. (f).
Treatife of M- (S-^ ^'"^ Ad'/owlon, being a right of Prelentation (a^ aforelaidj
'Ufljp^ow. relerved by a Founder to himlelf, his Heirs and 5ucceffors, is appli-
cable to other Ecclefiaftical Foundations,as well as thofe of Church-
es, as appears by the leveral Quare Impediis brought on leveral oc-
ef Diliurbance cafions {g) : fo that albeit it hath been laid, that by the Grant of
to a Prebendary a Church the Advowlon palled (^), and when he gave the one, he
7.R.2.Qu.Imp. gave the other ; yet is the word Ad'vcwfoft not improperly appli-
ZI.I3 R.z.Rie. c;ible to any thing wherein a Quare Impedit will lie. And he in
643. OrofDi- ^i^Q^g Right fuch Prelentation is vefted, is by the Provincial Com
Prefentatim to l^'curions of this Realm termed Advocattts EccleJia^bzauCe (&% the
a Vicarage, s E. ConSitution hath it) tueri d^ defender e Ecclefam d^ ejus jura tene-
^. lo. To a Pro- tuTy ad infiar Advoc^ti ejiii m Judicio Caufam alicujus defendit.
vofiry, 17 E. 3. Llndwo^d Frovin. Conjt. de Foro Conjp. cap. CircumfpeB'e,z>er. Ad-
zo.Toa Ooap- ^^^^^^^^ . Which every Patron is obliged to do: whence P^frcw/// and
(!AV Par- ' Ad'Vflcatus Ecclefi^e are in cit^ti Synonymous; yet in Lindwoodwe
ninT, 7 Ecl.3.f. l^^ve the Quefilon put, whether there be any difterencei«/er Patro-
Qu. Imp. I p. numd^ Ad'vocatu?n EcclcJIa.JJnd.Confi.Fro. de bomicidiOj cap. Sa-
criClrj]'. ibid. Where though the prevailing opinion be for the Ne-
gative, yetyou will alio there find very Orthodox Authority for the
contiary, and that Adi'ccatus inrelligitur ncn pro Patrcno, fed pro
Deft nfore Ecclejiie: Ghjf. ibid, as appears there by Lindwcod that
Fan- o -is Canonill totius Or bis Britannici^ who being Do6Vor of
Lav , Chaplain rnid Official to the Archbilhop o{ Canterbury in ttte
tin e oi H. 5". was by rcalon of his great Experience and Abilities
in Naticny.l Laws ar. well as Provincial Confiiiuticns ; lent as his
r^;)jbaiIi:dor to the Crcwns oi Spain and Portugal, and at his Re-
turn*
Of Advowfons, 20^
turn about An. i4zx. compiled what now is extant to his immortal
Memory, and dedicated the fame to the faid Archbifhop, it was
after about y^n. 1505- (being firfl revifed by Wolfgavgus Hopjlius)
printed at P^m, at the coft and charges of /^///^w ^r^frow Mer-
chant oi London. Mention hereof is here made, in regard of the
plentiful ufe here made of this Eminent Author in this Ecclehafti-
cal Abridgment, and that ratiier in tliemidrtrof this Subje<5l touca-
ing Alil'uoTi'Jonsy as prefuming, that for the reafon aforefaid a Quare
Impedit will not lie in ca(e of this digrcflian.
(6.) The Right of Patronage is, it feems by the Common Law,
a real Right fixed or vefted in the Patron or founder in the Church, (0 Vid. 8. AiT.
wherein he hath as ablolute a property and Ownerfhip as any man ^5- ^' Afl^iz.
hath to his Lands and Tenements, or any Freehold whatever Q) ; V^ }}" '^' ^'^'
And that the Adrowfon or Patrons Right to Prefent is a Temporal rv,are hn ' '
and not a Spiritual Inheritance. For at thefiril: Creation of a Man- 30. Co. 2. Par.
nor, if Lands were given to erevSt a Church thereon, the Advov/(on Inftit.acc. &
thereof becu me appendant to that Mannor, and reputed as parcel 5^ ^^- ^^-^
thereof, which b.iig Temporal, the other became f) alfb, as an •^•'^ ^''^"^ "j
Acceffary to the Principal : for which reafbn fuch an Advowfon qI^,^
p:ifltthby the Grant of the Mannor cum ^ertinentiis (Jz). Yea, it Co. 2. Par.
hath been adjudged, That by the Grant of a Mannor, without Inft. ace.
making any mention of the Advowfon, the AJvowfon alfb palled, (^^ ^ ^- 4- 19-
becaufe it was parcel of, and appendant to the Mannor (/). And 1} "^ V
it hath been ever held, That by the Common Law an Advowfon wkiftUr\
is a Temporal Inheritaice, for that it lleth in Tenure, and may. be Cafe,
holden either of the King, or of a Common perlbn ; and hath ^^) Co. ibid.
been held of the King in Capite, or in Knights Service (w). And ^**; ^'^'^•
wherea.^<^r« Jmpedit hath been broughr,the Plaintiff hath count- q^^^' i^ [f'
ed, that the Defendant held the Advowfon of him by Homage and and BouhVs
Fealty («). And it hath been agreed, that an Advowfon dodi lie Cafe.
in Tenure, and that the Lord may diftrain in the Glebe-Lands for ^oliir. i. par.
Rents and Service."^, the Patron's Cattel, if any be there found upon. ^ ^,'v\' ^'^'
the Land, but not the Cattel cf a Stranger (0). \rV{^. 11. ip;
(n) TheAhhotofmtAtck's Cafe.. (0) The Prior of C^y?Avv^.r..'j CJ^ vfrf. the- Prior of lijirLjs
Hugh's Abridg. veib.y^i/wjp/^w. Scci. 3. Se£t. 4.
(7.) Otlier Reafon?,. it feemsj there are at the Common E<aw ,
which prove. That an Advowfon is a Temporal inhtiirance j fcr
that a Writ of Right of Advowfon lieth for him, who hath an E- '•?'' ' s H.g.;.^;'.
ifate in an Advowfon in Fee-fmiple, or ri^ht of an Eitate therein "^^ ^f^^"'
to him and his heirs in Fee-fimple. Which Writ being Qjicd da- p'^j^r^g ^^-J '
mat tenere de te (p), doth fuppofc a Tenure, and lierh not only for /)ro// de 2l-
the whole Advowfon, but alfo for fome part thc^reof. As alf) be- -jrivjm
jaufe a Pracipe quodrsddat lieth for if,as hath been Adjudged (f) ''0 ^^ Ed..|.i ;.
2IO
Of Advowfons.
(r) 3 s Eliz. .
C. B. Crocker
and Dormer's
Cafe Poph.
2 2. Vid. Co. 5
par. 40. 6c
2 Par. 74.6c
As alfo ihai; a G>ra-non Recovery may be fu{}cred of an Advowfon, 1
as haih been likewlfe Adjudged fr). As alfo becaufe an Advow/011^ |
as other Temporal Inheritances, may be forfeited by Attainder ot
Treafon or Felony, or loft by Ururpa:ion,fix months Plenarty^Re-
cufancy, Outlawry, Negligence or Lacks of Pre(entment,Tranfla-
tion, orCeffer, and given away in Mortmain (s). As alfo for that
the Wife fhall be endowed thereof, and have the third Prefentment,
I. par. 55. ace. ^^^ ^i^g Husband fhall be Tenant thereof by the Courtefie; alf^) it is
6^-^Co Vc fucceilively devifable among Coparceners,' that the Priority of Pre-
par. 5V. The ""' fentment Ihall be in the eldeft Sifter; likewife it may pafs by way of
Exchange for other Temporal Inheritance; and albeit during the
vacancy of the Church it be not in it felf valuable, yet otherwife it
is as to an Incumbent ; and by Grant of all Lands and Tenements
an Advowfbn doth pafs, if not by Livery, yet by Deed is tranf-
ferable as other Temporal Inheritances (f), and pafs with the Man-
nors whereunto they are appendent by Prefcription, unlefs there
were before a feverance by Grant, Deed, Partition, or other Legal
Aa («); which Prefcription is fo requifite to Appendancy, as with-
out which it cannot well be at all (x).
(8.) An Advowfon in Grofs is underftood as under a more be-
neficial qualifcation than that which is Appendant ; and that
which is Appendant may by feverance become an Advowfon in
Grofs : and therefore in the Cafe, where a man being feized of a
Manner whereto an Advowfbn was Appendant , and by Deed
granting one Acre belonging to that Mannor una cum Advocatione
Eccleji^, did further by the fame Deed give and grant the faid Ad-
vowfon; the Queftion was, whether the Advowfon did pafs as Ap-
pendant to the Acre, or as an Advowfon in Grofs ? And the better
Opinion was. That by that Grant the Advowfon was fevered from
the Mannor, and was become in Grofs; for that the Deed fhall be
taken moft beneficial for the Grantee to have the Advowfon in
Grofs, and not as Appendant to the Acre. But in that cafe it was
Agreed, If the whole Mannor had been granted, then the Advowfon
had paiTedas Appendant, and not in Grofs (j). Yet an Advowfon,
Appendant to a Mannor, defcending to divers Coparceners, mak--
ing Partition of fuch Mannor without mentioning the Advowfbn,
remains Appendant, notwichftanding fiich Divifion and Severance
from the Mannor (z,): Yea, although the Mannor of D. to which
an Advowfbn is Appendant; be granted, and by the fame Deed the
Advowfon alfo of the Church of D.So,as it is named no otherwife
than in Grols, yet it fhall i;hereby pafs only as Appendant (a).
■Chi^ncelkr of
Oxford's
Cafe.
(t) Parfons
Law, ?p, 40.
vid. the Autho-
rities there
'vouched.
(nj Co. In!!-.
1 . par.
{x) 1 3 Eliz,
Dyer 259. in
EviJeigh's
die.
()■) 3 3 H. 8.
Dyer ^S.
vouched per
Hughs in his
Abridg. verb.
Advowlbn.
Se±^.uh.To
what tht?igs
Aiivowfons
inaj be Appc?i-
d.int, mid to
what not ; and
how infe-verjljek^ Cafes, vid. Hughes ,\\\)\ fupr. (x) Co. 8.
Opinion of Finchden, in 4 3 Ed. 3 . Huglies, ibid.
par. 8. IViatWeiJd's Cafe, (a) By the
(90 I'
Of Advovrjcns. 21
(y.; h the King makes a Leafe for life of a Mannor, to which
an Ad^owfon is Appendant, without making any mention of the
Advowlon, the Advowfon remains in the King as in Grefs: as was
granted by theju/lices • And it wasfaid by them, That in fuch ca^^ "
by Grant ot the Reverfion, Habendum the Reverfion with the Ad-
vowfon, the Advowfon paffeth not to the Patentee, for that the Ad-
vowfon was fevered, and became in Grofs as to the Fee {b) And ^^^ *^'^- "•
m another Cafe, where it was found before Commiffioners, That A. f'^'' ^;'~
was feized of a Mannor, to which an Advowfon w^as appendant/"""' ^'^''
and fhat he was a Recufint convid; whereupon two parts of the
Mannor were feized into the Kings had,wiio leafed the Mannor,wirh
Appurtcranccs, and all other profits and commodities, and Heredi-
taments to the fame belonging, unto J. S. for ii years, if A, &c.
mid afterwards the Church became void. In this cafe it was held,
That alheit there was no mention in the feizure of the Advowfon, ,..,.,
yet the Prefentment belonged to the King, and that the King alone £'cb \it
fhould Prefent. Secondly, That there were no words in the Kings 55, The
Grant to j.S. to carry away the Advowfon from the King, and Chancellor of
that notwithltandmg that Grant, the Advowfon remained iHll Ap- ^^^''^^-'^^^
pendant to the Mannor fc). ^ zndM^a/gravc's
(lo.) By words implying meerly matter of profit or things Sff',.,
gainful, ns Cum ommhus commodttatibus, Etnolumemis, proHcimM) Mich\^.
advantagiis, and the like, an Advowfon will not pafs, beca4 itis><^- C. B. rot.
contrary to the nature of an Advowfon regularly ; and therefor- '^77- ^- /-«/-
the Advowfon of a Vicarage appendant to a Prebend, puffed not t'\. '"^ '^'^
by a Leafe With fuch words of feveral parts of the Prebend to which Ch Xf St
fuch Advowfon was Appendant (4 Nor will an Advowfon z^- M.ry sit'
purtenant to a Mannor, pafs by the Grant of an Acre of Land poj-/^'^//'s Cafe.
eel of that Mannor cum fmimnuis, otherwifc, if the Grant be of ^^"'^•^^J'-
the Mannor it felf c«;« ;W7«.«?m(0. Yet in a Cafe where i\J^rt\\, 1
King being feized of a Mannor to which an Advowfon was aopen- 1.^ and tS
dant, granted the Mannor to J. S. for life, and then granted the Caf"
Mannor to J. D. after the death of J.S. Habendum cum Ad'vocati- B^J^^'- '• par.
^«.,andthen by Parliament the King reciting both the Grants, con- ^fl^'' ,,
firmed them by Parhamcnt : yet it was adjudged in that cafe Thar ' ' -^ ^ ^ I ^'
die Advowfon didnotpafs (>). Nor wil^ a^ Adv^w^Ilre ^JCfi^^^'^
Appendant; pafs without fpecial w-oi-ds of Grant thereof, which Biniopofo,
may not be flrained in the conftruaion thereof to an unufual or ^"'^'>' ^^-d-
unreafonable fenfe, for which reafon an Appropriation will not ^'^'"^^''^-^
pafs by the name of an Advowfon i but (as aforefaid) an Ad^'ow- ffL^r^
fonofa Vicarage may be Appendant to a Prebend; all which hath pJzi,;.
been refoived in the fore-cited Cafe ig). And if Tenant in Tail Hob. Rep.
be of a Mannor to which an Advowfon is appendant, the Church ^^^ ^^'"'"- '^•
being full, and he grants trextmam Advocatiomm^ and then d" - ■^'''■"' ^" ^'- ''''^•
212 _ Of Advowfons,
by his death the Grant becomes raeerl/ void, as was alfo Refolved
(h) Trin. 8. in TValter and BouU's CafeC^ ).
Jac. B. R. Ij^ a ^i^re Impedit, The Cafe was between the Chancellor and
^' '■ Scholars of OA;/or</, and the Bifhop of Norivichj and others. The
Plaintiff Counted upon the Statute ©f g Jac. That J. S. being
Owner of an Advowfbn, z Jac. was a Recufant convi£b, and that
afterwards the Church became void, and io rhey by the Statute
, ought to Prcfent. One of the Defendants pleaded, That the Ad-
vowfon was appendant to a iMannor, and that two pirts of the
Mannor were (eized into the Kings hands by Procefs out of the
Exchequer , and that thg King by his Letter Patents granted the
Two parts to the Defendant with the Appurtenances, and granted
alfb all Hereditaments (but Advowfbns were not mentioned in the
Letters Patents) and fb faid, the Prefentation did belong to the De-
fendant : it was Refolved, That the Advowibn did not pafs by the
word [^appurtenances'} without mention of Advowfbn or v/ords
Adeo plena d^ Integra^ d^ i?i tam amplo modo ^ format as the Re-
cufant had the Mannor.
(i I.) In cafe a Patron be Outlawed, and the Church becoming
void a Stranger doth ufurp, t\ prefents his Clerk to the ^ voidance,
and Six months pafs, and afterwards the King, being intitled to the
Avoidance by reafbn of the Outlawry, bring a Qji. Impediti'g2\r\^
the Incumbent as being in wrongfully, and remove him: By this
means the Advowfon is recontinued again to the Rightful Patron,
whereof he was ouflcd by the Ufurpation, who upon the reverfal
of the Outlawry fhall Prefcnt, in cafe the Church becomes void a-
O) Co. i.pir. gain(/).
Inait. 363. . (1^.) A man hath Three Avoidances granted hrm of one
Church at one time and by one Deed j The Church becomes void;
the Grantor by Ufurpation prefenrs his Clerk, who h Adm.itted,In-
ffifuted, and Inducted, afterwards the Church becomes void again.
In that cafe the Grantee fiiail prefent to the Second Avoidance, for
that tlie former Prefentation made by the Grantor ufurping, did
not put the Grantee out of all the Avoidance ; and Adjudged ac-
(/.) Mich. 18. cordingly f^).
I:Jj2..C. B. (ijO a. feized of a Mannor with an Advowfon appendant,
prefented B. who was Admitted, Inftitutcd, and Induded ; after-
v/ards A. fells the Mannor to which the Advowfbn was appendant,
unto J. S. The Church becomes void by the death of B. where-
upon the Queen i 5 Feb. 1588. Prefents J. D. byrhefe wordSjW^i.
ler moritm -naturalem Incumbentis ibid. 'vaca7it. who thereupon
1.0th of the faid Feb. was Admitted, Inflltuted, and Inducted by
X<etters of Inftitution, Per Dom'mam Reginam "veram & induhita'-
iam Fatronam. Tlie fliid J. D. dit.i ; The King prefentj; R, in i\\dh
words.
Of Advowfons, 213
words w^i. AdnofirarnVr^fentationem five ex pUno jure, /I've per
La^fHmTemporis^Ji've alio quocunque modo fpe5hntrVhQ only Que-
ftion was, Whether, notwithftanding all this matter, t!ie Advow-
fon did remain Appendant or not P And it was Adjudged by the
Court, That the Advowfbn remained Appendant, notwic Handing
the Queens Prefentation of J. D. For it appeared, there was n'r>
colour of Title to the Queen to prefent j no Lapfe j for the Prefen- '
tarlon, Inftitution, &:c. were all in the fame month, wherein the A-
voidance was: And it was no Ulurpation by the Queen, becaufe the
Prefentation fuppofed a Right where none was, and (b wss void ,
for the Queen meant to do no wrong : And upon the fame reafon
the Prefentation of R. afterwards by the King was void. And it
was then further holden by the Court, That the Prefentation of
J. D. being void, it was but a Collation of theBiOiop, which makes
no difappendancy, nor fb much as a plenarty againft the Rightful
Patron, but that he may bring his Quare Impedit when he willj and
if the Bifhop receive his Clerk, the other is out ipfo facio (I). (;\ ^jjj j ,
(14.) Although an Advowfbn be a kind of Revcrfion of a right [ac.C. B. rot.
of Prefentation to a Living or Benefice, called Spirirua',yet It Is now 1840. G.^wdy
in the nature of other Temporal Inheritances; and therefore he '^f^ "^^^^ '^^^1^-
that harh this Right in him, may either dcvife it by Will, or grant ^^^^.^^^
it by Deed, in Fee, or for life, or for years, as other things (w). -„^ Rene's
And in regard an Advowfbn ox Jus PutronaC.re^ers to and respects Cafc. Hob.
not the Oblations and Tithes belonging to the Church, but rather 3oi' ^^^'^'^''s
the Building thereof, with the Ground whereon It is built, and the Abndg vcr.
Endowment thereof ; if therefore any debate or controverlie fliould , ^^r.^ "^^j^ " '
happen to arife touching any of thefe lafl: mentioned, it mighpre- ^^^^^ q ^ ^^
judlce the Patron as to his Right to the Advowfon ; but if the 15 h. :?. ?.,
controverfie be only touching the other, 'vlz,. the Oblations or
Tithes, whether Great or Small, the Jus Tatronatus will remain
good and entire to the Patron notwithftanding fijch Controverfie,
provided the Suit doth not extend & be for a fourth part of the
whole belonging to the Church, IJndw. de Foro Comp-cap. Circum-
fpetle^iferb. Item JtReBor^ &gl.ihid. verb, c^narta pars. And he to
whom the Right of Advowfon of any Church appertaln?,is termed
AvoTve for diftinftlons fake, to difcriminate him from thofe who
fbmtime Prefent in the Name of another, as a Guardian thit pre-
lents in the Name of his Minor ; asalfo to dli^erence him from fiich
as have only for term of their Lives, or of years, or by Intrufion or
DifTeifin, the Lands fo v/hichan Advowfon appertains ; the Avov'ey
properly and ftri£tly taken, being only he who may Prefent in liis (.>n Brirtoc,
own right and in his ov/n name (fi)- '"^^'' ^^*
H
Of Aduovpjons.
(o) Dra. Cafe
Lotidon verf.
the Collegiate
church of St.
Mary South-
well.
(^) 44. Ed. 3.
3 3 . cited in
dia. Cafe;
(q) 39 H. 6.
f /?f(Y /7Z di£l.
Cafe.
(r) Mich. 1 4.
Jac. C. B. Rot.
647. Chancel-
lor, 8cc. of
CiVfibridge
verf. IValgrave
Hob. Rep.
(i) Cafe ibid.
(0 Ibid.
(u) Dom.Rex.
ver Billiop of
Roche [lir, and
"jacifon his
Clerk. Hob.
(jf) Mxh. 3 1,
& 3 2»Eliz. C.
B. Rot. 452.
Cafe y^jhegel
veif Dt'iinis.
Leca, Rep.
(^^ Term.
Law verb.
^are Impcdit,
(i$.) It hath been Adjudg'd, That an Advowfbn belonging to
a Vrehend will not pafs by a Leafe thereof, albeit it hath in it thefe
words, viz,. Commodities, Emoluments, Profits and Advantages ;
becaufc all thefe four words being of one (en(e and nature, imply
things gainful, which is contrary to the nature of an Advowibn
regularly, as aforefaid ; yet an Advowfon may be yielded in value
upon a Voucher,ind may be Affets in the hand of an Executor (0);
and in the aforefaid Cafe of London v&Ki^c. it is faid. That an
Appropriation, nor the Advowlon of it, will not pafs by the name
of an Advowfbnj yet an Adv^ovvfon will be contained under the
name of a Tenement (f\ And where the King granted that
Monks fhould have all their pofTeflions of the Abbey in the Vaca-
tion for their fullrentation ; Ruled, that they fhould not have the
Advowfbns, becaufe no fuftentation arofe from them (■5'); nor will
an Advowfbn, though it be appendant, pafs in the Kings Grant,
without rpecial words (r) ; yet in the Cafe of a Recufant convidt,
to whofe Lands an Advowfbn is appendant , the felzure of Two
parts of his Land for the King is a Seizure by con/equcnce of two
parts of the Advowfon, without mention of It {s) ; and if the
King have but Two parts' of an Advowfon, yet he fhall Prefent
slonc, for no Subjecl can be Tenant in Common with the King;
who (though he be no party to a Quare Im^edtt) yet if his Title
appear clear for him againll both parties, fhall have a Writ awar-
ded for him to the Bifhop (r). Or if the King joyn IfTuein a Q^are
Iwpediti which is not found fully for him, yet If Title do any
way appear , the Court muft award a Writ to the Blfliop for
him (li).
(16.) A. brought Quare Tmpedit againflZ). The Plaintiff count-
ed that the Defendant had diflurbedhim to Prefent ad Ficariam de
D. andfhewed. That the Queen was feized of the Re6l:ory of^D.
and of the i'^dvowfbn of the Vicarage of D. and by her Letters
Patents gave unto the FU\\nti?( Recloriam pr^ed0am cum per tine ff-
ti/Sf d^ ctiam Vicariam Ecclejia pradicL And It v/as holden by
the whole Court, That the Advowfbn of the Vicarage by thefe
words doth not paly ; nor fb in the Cafe of a Common perfbn, much
lefs In the Cafe of the King ; But if the Qiicen had granted Ecclefi-
am [mm of D. then by VValmJley Juflice , the Advowfbn of the
Vicarage had palled {x).
(17) Although he, who after the dcatH.of a Par/(>n Incumbent
huh Right of Prefentation in him, doth not upon a DHhirbance
bring a Quare Impedit nor Darrein Prelent mem ^ but fufFereth a
Stranger to ufurp upon him \ yet he may have a Writ of Right of
Advowfbn ; but this Writ lieth not for him, unlefs he claim to
have the Advowfon to him and his Heirs in Fec^fimple(jj; which
Advo\^-
Uj Advowjons, 215
Advowlbn is valuable, though the PrefentmenE be not {%,), (z) Trin. 31.
(18.) The C^een felzed of an Advowfon being void, the An- El^z-C. B.
cellor of P. Prefented, and gained it byUfurpation, and then the l^i^iL
Church being void he Prefented again, his Clerk dies, and then the oi Lichfield'
Queen grants the Advowfon to T, the PlaintiflF, who brings a ^^jire Leon, Rep.
Impedit in the Queens Name, (uppofing that this Ufurpation did not
put the Queen out of PolTc/iion : It was argued, That the Grant
could not pafs without fpecial words , becaufe it is in the nature
of a Chofe in Aclion: And jD/er, Mead, and Wind har/3 held. That
this Ufurpation did gain poffefTion out of the Queen, and that fhe
fhould be put to her Writ of Right of Advowlon. But the Opinion
of Anderfon Chief Juftice was clearly, That the Qiieen was not out
of Pofteliion ; for he (aid. That it was a Rule in our Books^ that
of a thing which is of Inheritance, the a6t of a Common perfon will
not put the Queen out of pofleffion : but if fhe had only a Chattel,
as the next Advowfon, then perhaps it is other wife. But Mead and
Windham very earneftly held the contrary, relying on the Book of
18 E. 5. 15-. where ^^W faid. That if the King had an Advow-
fon in his own Right, and a Stranger, who had no Right, happen to
Prefent, it puts the King out of PolTedion^ And the King ihall be
put to his Writ Writ of Right, as others (hall ia). The Defendant (a) Vid. 57,
alledged Two Prefentations tn his Anceftor after the Title of the E- 3- n- b.
King, and demanded Judgment if the King fliould have a Writ of 'l^- ^ ^^'
Pofleffion, and the Plea was admitted to be good. But after Pafck
25 Eliz,. Judgment was given for the Queen, for that flie might
very well maintain a Quare Impedit^ and the two Prefentments
did not not put her out of poffeffion (b). Q) Pafch. 28.
(19.) In a ^are Impedit by G. againftthc Bifhopof I,, and D. E''^- C. B.
Incumbent : The Cafe was. That a Manner with the Advowfon p'|v^ ^^^'
Appendant was in the hands of the King, -and the Church became oweirRen
void, and the King grants the Mannor with the Advowfon ; if the
Grantee fhall have the Prefentation, or the King, was the queftion.
All the Juftices held clearly. That the Advowfon would not pafs_,
becaufe it was a Chattel veiled. And Periamtkid, that in cafe of a f, »^. ,
Common perfon, without queilion an Advowfon appendant would ^^ ,o_ gijj..
not pafs by liich Grant, for ifthe Father die, it fhall go to his Exe- Sir. Th. Gorge.
ctitor: but if it be an Advowfon in GiSifs, in eafe of a Common per- verf, Bifliop of
fbn there is fbme doubt : But in the Principal Cafe all the Judges ^''"^o^" a-nd
held //f /»pr^,andfaid,Thatfbitwasin9 E. g. x6. Quare Impedit i,1'/^""q^^I^^'''^'
5 T. and in Djer in the Cafe of the Church of Vl^efiminjhr : But R^p.'
F. N. B^ is contrary, 3 3 N. (c).
(10). Of
21 6 Of Advowfons,
(lo.) Of Advowfons there are three Original Writs, whereof
one is a Writ of Right, the other two of Pofleflion, 'vizj. Darrein
Vrefentment, and Quare Imfedit. And where an Advowfbn defcend-
eth unto Parceners, though one prefent twice, and uliirpeth upon
his Co-heir; yet he that was negligent fhall not be clearly barr'd ;
(d)St. 1 3.E. I. but another time fhall have his turn to prelent when it falleth {d).
cap. s- And by the Statute of 3 Jac. ^. every Recufant Convi<9: is utterly
Vid.Raft.pla. dif^bled to Prefent to any Ecclefiaftical Living, or to collate or No- '
l^&L^^^' "^'"^'^^ ^^ ^"7 Donative wharfbeverj the Advowfbn of every flich
2 8c' 3 Ed. <?'. Recufant being left to the difpofition of the Univerfiries of Ox-
13. ford and Cambridge {e). Alfb by the Statute of i 3 £. i. 5". it is
(e) St. 3. Jac. direftecl, what Adtion fhall be maintained by him in theReverfion
^' ^' who is difturbed to prefent after the Expiration of a particular E-
ftate \ where there is alfb provided a Remedy for him in the Re-
verfion or Remainder, or others that have right, where there is an
Ufurpation of an Advowfbn during any particular Eftate : And
that Judgments given in the Kings Courts touching Advowfbns
(f) St. 1 3 E. I. fhall not be void by Surmizes, but by lawful means C/)- Like-
cap. S' wile it is Statute-Law to hold, That Advowfors fhall not pafs from
the King but by Special words ; for when the King doth give or
grant Land or a Mannor with the Appurtenances, unlefs he make
exprefs mention in his Deed of Advowfbns of Churches, when
they fall, belonging to fuch Mannor or Land, they are referved to
(g) St. 7 Ed. him, notwirhftanding the word [Appurtenances,^ albeit among
2..15.8C Co.hb. Qjj^nion p rlbns it hath been otherwife obferved {g) ; nor is it
Dyer^Vo. 3 5Q. l^wful to purchafe an Advowfbn , during the dependency of a
{h) St. 13 Ed.i Suit at Law concerning the fame {h).
c. 45)-
• (2i.)Ifa Feme Covert be feized of an Advowfbn, and the
Church becomes void, and the Wife dieth, the Husband fhall Pre-
(^Dyer z(^, ft"nt Q). Where a Parfon and Vicar be Endowed in one Church
9 Ed. 4. 4--. a. and the Vicarage becomes void, the queflion is, To whom the Ad-
Co. fup. Lit. vov/fon of the Vicarage doth belongs and who in that cafe fhall be
I to
fii'd to be the Patron of the Vicarage.'' Whether the Patron of the
' *' ' Parfbnage, or theParfbn? It feemsin the Books at Common Law,
the Judges and the Court were divided in Opinion, touching this
,^ point (k) ; fbme of the Judges were of Opinion, That the Ad-
FarfonsLaw ' vowfon of the Vicarage appertains to the Parfon ; Others, that it
cap. 2.3. belongs to the Patron : Such as inclined , that it is in the Patron
(A) Mich. 16.E. (/j, gave for reafbn, That the Ordinary cannot make a Vicar
3 Firz. ^. iMp. v/ithout the alTent of the Patron, 5* E. 2. Quare Impedit 1 65*. puts
^^^ ^^hu' ^^^ Cale, That although the Vicarage be Endowed with the affcnt
of the Vatron and Ordinary, yet the Advov/fon of the Vicarage
doth
of Advowfons^ 217
doth remain in the Parfbn, becaafe the fame is parcel of the Ad-
vow Ton of the Par.fbnagc (m). And 16 E. ^. Grants^ 56". it was (tn) Parfons
a queftion , Whether by the Grant of the Advowfon of the Law. c. zj.
Church, the Advowfon of the Vicarage did pafs? and there
it was faid by Steve ^ That it doth pafs as Incident to the Par- , ...
fonage (n\ And in regard the Vicar is as the Parfons Subfti- , o-j,-^. <<r '
J t • r-> J .... , \ ;r . - 3 *J'^MS, 6 6.
tute, and his Endowment originally only as a Ma«atenance tpr 13 r, z.fu.
\vm in officiating the Cure for the eafe of the Parfbn , whole rifditlion, 19.
Concern it is to lee that he be a hr and able perlbn , fufficicnt ^^^' '• ^'^^'
for the Cure, it (hould thence ieem rational that the Parfon ^ "' ^^^'
fhould be his Patron , to Prefent fuch an one to the Vicarage as
fhall be fufficient for the Cure ; for which reaibn the Patro-
nage of the Vicarage fiiouid Ieem rather to belong unto the
Parlbn , than to the Firit Patron of the Parlbnage Appropri-
ate.
(il.) But Advowfon cannot, itfeems, at the Common Law be
called a Dcjvejhe^ for that it is not fijch a thing as a man hath
a Manual occupation or poflelfion of, as he hath of Lands, Te-
nements, and Rents whereof he may fay in his Pleading, That
he was feized thereof in his Demefh as of Fee, .which he can-
not fay that hath only the Advowfon of a Church, because it-
lies not, as the other, in Manual occupation. And therefore in the
cafe of Advowfon of a Church , he may only fay that he was
feized as of Fee, and not in his Demefn as of Fee (0), whether ^"^ L'"- '^'^-
it be an Advowlbn in Grofs or Appendant, which Appendancy ""'"' ' I'r
is he!d to be for the moft part by Prelcription, and mull: relate
to fuch things as are in their own nature of a perpetual conti-
nuance; for which reaibn it is. That Advowlons cannot be liiid
to be Appendant to Rents, Services, and the like, becaufe fuch things
are extinguifhable (f). And although an Advov/fon be not pro- (^) Co. .1. Ter-
perly faid to be a Demelh , yet it may be Appendant to a De- w/g:/:"?w's Cafe.
melhj as of Lands or things Corporeal and Perpetual, and there-
fore (as fuppolcd) not to an Houfe of habitation, meerly (juatenus
fuch, yet to the Soyl, whereon the Houle is ere^fed ; whereby
the Law ( which harh the cleared profpcif of Ca(ii;tltics at a
diftance) hath provided, that the Advowlbn fhall Itand, though
the Houfe fill (f); but an Advowf:in Difappendant and in ('^),o Fl ?.i -.-
Grofs, which a man hath alone, and not by realon of any ether b. by AV^i/r.
thing, but k-vered from the Lands to which it was Appen- P-^'"^ l'-'*'-\
dant , fuch an Advowfon is exempt from divers prejudicial inci- ^P'" '
dents, which the other, 'viz,. the Appendant , cannot v/cil fl- ;>,,.',/ ' '
void. And where a Subje£f or Common perfon hath nn Ad-
vowfon Appendant to a Manner, and there be an Ufrpralon
* Upr»>n
2 1 8 Of Advovpfons.
upon him, by a Prefentation made by a Stranger,^ whofe Clerk is i
for Six months ; though this n^akes the Advowlbn of fuch Com* -
mon perfon Difappendani: to his Manner ; yet it is otherwife in
cafe of the King, who may grant the Advowlbn notwithftanding
luch Ufurpation ; for a man cannot put the King out of pofle(]ion
•(r)Uxch n either by Prefentation or Ufurpation, as hath been Adjudged (r),
i4Eliz,.' Nor doth the King's Prefentation by Lapfe fever tiie _ Adyowfon
Bmdloe: dit from the Manner, Or caufe it to become difappendanr, as in Gawdfs
I'Opimcm del Cafe ao-ainlt the Archbifliop of Canterbury and others, was like-
CourtMoh. ^.^^ Adjudged; in which Cafe it was alfo faid by Hobart Chief
frE^fk ^« Juftice, That neither doth a wrongful Collation of the Bifhops
hnpedit, 57 make any Difappendancy, nor any binding Plenarty againft the true
Patron; but that he may not only bring his Quare Imfedit^\\tn he
{s) Hill. 1 7. pleafcjbut alfo Prefent upon him feven years after {s). Alio, whereas
Jac. rot. 1840. I,, ^as fiid before, That an Advowfon cannot be Appendant to the
Cafe Gawdy ^^j^ Extingullhable, as to Rents, Services, and the Hke, fo it feems
7iCant&\uos at the Common Law an Advowfon in Poffellion cannot be Appen-
Hob. Rep. ' dant to a Reverfion expea:ant upon an Eftate for life ; for the Cafe
was, The King leized of a Mannor with an Advowfon Appen-
dant, granted the M.mnor to J. S. for life, and then granted the
Mannor to J. D. after the death of J. S. Habendujn una cum Ad-
njocattom; and then by Parliament the King reciting both the Grants,
confirmed them by Parliament, yet the Advowfon pafled not (f).
Finally, whereas alio it hath been Adjudged fas aforefaid j that the
(0 Cafe of King cannot be put out of PoflTeflion either by Prefentation or Ufur-
the Abbefs paclon, this feems to refer only as to the Kings Advowfon, and not
of 5/oK, 3 8 H. ^g j.^ j^.g prefent Prefentation ; for the Opinion of Sir H. Hobart Chief
O/^andGr Jufticeis, That although the King may bedifpoffeffedof his prefent
wr. verf. Bi- Prefentation, he cannot be foof his Advowfon, and therefore he may
{hop of Cow«- ftiU grant It, notwithftanding the Ufurpation, as was Judged in a
/r/and Lichf, ^^ ^\^ of Error, upon a Judgment given to the contrary, between
Mich. 10. >c. ^^ ^j^g and C^wf/o?; for the Vicarage oiHeyvtonVaUnu (u).
(u) Pafch. 14 Jac. rot. 1030. Lord Stanhqe vcrf. the Eifl:op of L/wm/w, and others. Hob. Rep.
(x^.) A Donative In the Kings Gift may be with Cure of Souls,
as the Church of the To7ver of London is a Donative in the Kings
Gift with Cure; as in the Cafe of Fletcher and Mackalkr, where
Information was brought upon the Stat. 3 1 Eltz.. of Simony for
(x) Mich. p. procuring him to be promoted to the Church of the Tower for
Sf^Sc-L-"'' "^^"^'J and per Curiam, it well liesC^'j.
and Miickiilbr. ' . . _,,
(14;. The
Of Advovpfons, 21 o
(24.) The Queen hath the Advowfon of the Vicarage of H.
and grants the Vicarage to J. S.. It Was the Opinion of all the Ju-
flices, that the Advowfon pafleth not ; for that the Vicarage is ano-
therthing than the Advowfon of the Vicarage (7). The Queen ( y r
ftized of a Mannor, to which an Ad'von'fov was appendant,granted ''°' ^""'^
the Mannor cum Ad'vocatione'EccUfia^ the Church being then void:
It was Adjudged the Avoid:ince did not pafi, but the Queen fhould C^)Hi!l. 29
Prel'ent pro hac -vice (z.). And in the Queen and H«///Vs Ca(e it E^'^- 5"- ^>^^''.'
was ReJol'ved,ThAt 9. double Prefentation would notput theQiieen ^'"^S^^' Cafe.
outof pofleffion, if flie hath Right ^y. And in Stephens and Ciarks ^Tm ^%
Cafe it was Re/oh'ed, That theGrantof the next Avoidance to one (hMo^Tt^
during the A vojUance, IS void in Law C^). ' "
R r CHAP,
220
CHAP. XX.
Of Appropriations.
I. The great yintie^msy of Afprofriations \ a ccnjeBure of their
Original ; "whether Charles Martel was the occajion thereof ?
, they were prohibited in England j4nciently by the Pope, whe-
ther they can be otherwife than by the Kmg, or [ome Authority
derived from him?
I. How the end and ufe of Appropriations is changed at this day
from what it was in the Original Inftitution thereof.
5. Appropriators v^hy called Proprietarii ; The care of R. 1. in
making Provi/ion for the Vtcar in cafe of Appropriations) Re-
t^uiftes of Law to make an Appropriation.
4,. A further difccvery of the Original ufe, and ends of Appro-
priations, and under what qualifications.
5. Whether Appropriations were Anciently grant able to Nunne-
ries ?
6. Appropriations not now to be ^uefiioned, as to their Ori-
ginal.
7. A Vicarage endowed may be Appropriated, hut not a Tar-
fon.
8. Three confderable Points of Law refolved by the fuflices
touching Appropriations.
9. Whether an Advowfon may be Appropriated without a Sue-
cejjlon ? Appropriations ufually were to Corporations or Per-
fans Spiritual.
I o. How a Church Appropriate may be difappropriated.
II. In Appropriaticvs the Patron andhis Succejjors are perpeual
Parfons.
I z. Whether an Appropriation of a Parfonage without endow-
ment cf the Vicarage be good^ Alfo, whether an Appropriation
may be made 7i>ithout the Kings Licenfe ?
(l.) "TTT is a Qaeftion at this day undecidcd,whether Princes or
I Popes were the firft Authors of Appropriations; chepra-
JL 6lice whereof by each of them is of great Ar»tiquity ;
but whether in imitation o^ Charles Af<?rre/'j Sacrilegious Prelident
(the fir ft by whom Tithes were ever violated in the Chriilian
World} is but a Suppofition rather than any affcrtion among Hifto-
runs
Uj Appropriations.
221
ri'ans. It was Jong fince TradfrionalJy Recorded in Hiftory, that
about rhe year <5 5- o. when the faid Charels Martel, Father of Pio/«, .
after King o^ France, in defence of his Country againft the Hum]
Gothesy and Vavdals , had flain no lefs then 345-00. ofthofe
Infidel Saraz^e^js in one Batde, he did not reftore to fuch of the
Clergy oUrance their Tithes, as from whom under a fair pretence
of fuppojting the charges of the War thereby, he had (upon a Pro-
mife ofReftitutioiuhcreoffo fbon ss f he War fliould ceafej obtain^
ed the fame ; but inftead thereof gratified fuch of tlie Nobih'ry, as
hadafliftedhim in the War, by the grant thereof to them and their
Heirs for ever. But whether this Sacriledge (if it be true) had
fucli a malign influence upon fycceeding Princes in After-ages, and
other Kingdoms, and alfoupon the Popes,as fome Hiftoriographers
do more than conjecture, is not fo evident; as that which is report-
ed by Ingulpfjtis Abbot o^Crowiand, touching Eight Churches to
have been Appropriated to that Abbey by fcveral Saxon Kings •
and though by their Charters , yet whether by ffjch cxclufively
to all Ecclefialtical Authority, is not fo certain, as that miliam the
Concjueror, without asking leave of the Pope, Appropriated three
Parifli-Churches to the Abbey of Battaik, which he built in me-
mory of his Conqucft ; and his youngcft Son H. I. nigh twenty
in one day to the Cathedral of Saruw by his Letters Patents to-
gether with the Tithes of thofe Parifhes which his elder Brother
^^////^WjSirnamed Rufus.h^d depopulated and dlf^xclefiated in New
Forrefi in Hantjlnre. Notwithftunding which,the Pope (who under-
Itoodhis Supremacy in matters Ecclefiallical better than to part with
It upon any Preiidents of Temporal UfurpationsJ doth frequently
in his Decretals, without any contradiaion, rather aiTume than arro-
gate this Right unto himfelf, as a Prerogative of the ApoftoHck
See, and granted to fcveral Religious Orders this Privlledcre of
taking Ecclefiaflical Benefices at Lay-mens hands by the medTation
of the Diocef^^n, who at a moderate and indifferente rate (as one
Moity of the Annual profits of the Benefice) was to be a Medium
or Expedient between the Religious Houfe and the Incumbent •
but in procefsof time, partly by theremifiiefsof thcBifhops In that
pointj^and partly by the Covetoufnefs of the Monks and Friers in •
thofe days, the Incumbents proportion became at laft ^o inconfide-
rable, that Pope Urban the Fifth by his Legat Othobcn, about the
year lado. was forced to inhibit alltheBifhops here in EnHand
from Appropriating any more Churches to any Monaftery or'odier
Religious Houfes, fave only in luch cafes where Charity might pre-
vail in derogation of Law; and under this Prt^xv/o alfb, That the
Bilhops fhould afllgn a competent proportion of the Parochial
Fruits for the Maintenance of the Incumbent, according to tha
» R r 2 annual.
2 2 2 Of Appropriations* ^
annual value thereof, In cafe the new Apropriators did it not within
Six months next after fuch Appropriation; but this Conflitution
not taking the efFe^lexpeiled, a convenient Maintenance for the
Vicar was otherwife provided for by Two Statutes, the one made
by R' X. the other by his Succeflbr H. 4. So that upon the whole it
may be rationally inferr'd, that thefe Appropriations ort'glnally
came, partly by the A(St of EccleHaftick?, and partly by the Lairy.
But what way foever they came, this is and hath been held for Law
Pi jj. within this Realm, That albeit the Pope takes upon him to bp
11,12, i3.acc. Supream Ordinary, yet no Appropriations made by him, or by
any Authority derived from him, were ever allowed or approved of
by the Laws of this Realm, it being held, That no Appropriations
within this Realm can be made but by the King, or by Authority
derived from him, and by his Licenle, and that all other Appro-
priations are void in Law. An Apfrofriaticn may be by the King
Sole where he Is Patron, but it may not be by the Patron Sole :
GretidonsC^ih in Plcwden.d^ 17 E.g. 3 9. An Appropriation cannot
be without the King's Licenle. Ward\ Cafe, Toph. Rep. Nor will
CoIic 5« Par: the Objection hold againft the King, to fay, no man can make
lo.inG^w- an Appropriation of any Church, having cure of Souls (the fame
dne s Caie. ^^jj^g ^ thing meerly Ecclefiafl:ical,and to be made by fome Ecclefi-
c k lb & 1 1 . afllcal perfon j but he only who hath Ecckfiaftlcal Jurlfdldtron ;
par. in Pridle for fuch Jurif3i6lion the King hath, and is fuch a Spiritual perfbn
and Nippers as may of hlmfelf Appropriate any Church or Advowfbn, becaule
Cafe. In him refides the Ecclefiaftlcal Power and Jurifdl^lion. And there-
Trm. 1 1. H. ^^^^ jj^ ^ ^^ of Ccwmendaws it was long fince held. That an Ap-
ed inDavies proprlation made by the Pope, could not be good without the
Reports, as King's LIcenfe. The like In a Cafe of A'voidance was vouched in
pirHugIis\. Cawdrie's Cafe, That the Entry into a Church by the Authority of
bridg. verb. j]-,e Pope only, was not good, and that he could not Appropriate a
yi^propnar. (;;|-,urch to Apprcpriatecs ro hold to their own ufe. And In Gren-
I \ Coke f'. ^^^'^ ^^^^ ''■ wasRefolvcu by the Jufllces, That the Ordinary, Pa-
par, vouched tron, and King, ought ro be alTenring to every Appropriation', and
jn Ciwdrte's that the Authority which the Pope had ufurped in this Realm, was
Cafe. by Parliament, 25- H. 8. acknowledged to be In the King, who as
r^ B^ Plowd ' Supream Ordinary may Appropriate without the Bifhop's Aflent.
Comrrent. >»/- ^ r -i j-n-
45,5,^5,; &o. (i.j It fe ems therefore witnout any contradiction mojt evident,
GrfWi/i?/ s Cafe. That Appropriation or L^prcpiaticn, &t the Orliilnal thereof was,
when the Religious Houfes of the Rcmijh Church, and the Religi-
ous perfbns, as Abbots, Priors, and the like, had the Advowfbn of
sny Parfbnage to them and their Succe.Tors, obtaining LIcenfe of
their Holy Father the Pi5^^,as alfo ol Kmgs^znd of tht'n Ordinaries,
that they and their Succeilbrs fhould from thenceforth be the Par-
* fons
Of Appropriations. 223
Ions thereof, that It fhould thenceforth be a Vicarage, and that a
Vicar fhould fcrve the Cure. So that at the beginning of this Spiri-
tual Monopoly of Approp-iattons, they were made only toflichSpI-
ritual perfons as were qualified to Adminifter the Sacramental Or-
dinances, and perform Divine Service. Afterwards the Grant there-
of was gradually enlarged, and extended to Deans and Chapters,
though Bodies Politick, and as fuch not capable of performing fiich
Divine Services ; yea, and f which was moft ridiculous as well as
Impious) to Nunsy which were Priorcfles to fbme Nunneries, but
not Female-Preachers, as in thcfedaies. All which was under a Pre-
tence of maintaining Hofpirality , and to fupply all defe6ts hereby
occafioned, there muft be the Invention of a Vicar, as the Appro-
priators Deputy, to fervethem and the Cure, for which he had and
hath the Tithe of Mint and Cumm'my and fuch other fmall offals
of Tithes, as might be fpared out of the weightier Granaries there-
of without breach of the Laws of Hofpirality, thereby Sacrilegi-
oufly robbing the Church to enrich themfelves. Thus the poor
Vicar fball have (omthing like a certain portion of the Benefice,
whilftthe Abbot and theCovent, and their Lay-SuccefTors fhall
be the Parfbns,and receivethe main profits, and fb live by the Altar
without waiting on it, and be Re-baptized by the Law with the
name of Parfons Jmfarfcnees. This was that Anciently, which we
now call Appropriations^ which cannot be made to begin in thePar-
fbn's Life-time without his Allent ; and is fb called, bccau(e they
hold the profits ad proprium fuum ufuw\ but if fuch Advowfbns
happen to be recovered by Antient Title, then and In fiichcafe the
Appropriation of the Parionageis annulled (a). ^-'''^ Ter7m^of
(2. ) So that from the Premifcs it is evidenr,That this Appropria- ^f^' ^"'°'.
•T ... . . r -n ^ r n.' \n r ^f^ropriatio.fu
tton or Impropriatton is an Annexation or an Lcclenaltical Benehce
(which originally was as It were;» nuUius Patrimonio)to the proper
and peculiar ufe and Benefit of fbme Religious Houfe, Bifhoprick,
Dean and Chapter, Colledge,&c. ^od divini juris esf, id null ins
efi in bonis. Infiit. de Rer. Divif. §. N«///«/.AndItIs fuppofed,That
fuch as are Impropriators are fb denominated, for that now and here-
by they are as Owners of a Feefimpleby reafbn of the perpetuity of
their Title, whence called Proprietarii, wherereas the Parfons of any
Ecclefiaftical Benefice are properly, regularly,& ordinarily accoun-
ted hutUfufniBuarii, nor were they any other Originally, and not
Domini as having any Right of Fee-fimple in them {b). It is fur- q\ ^j^] ^^^
ther afferted by DT.Ccwel (c),That before theReignol: K.i.itleem- Djjcontivuance,
ed to be lawful to aopropriate all the Pro'venues of an Ecclefiafiical {c) Cowers
Benefice to an Abby or Priory ; provided they found one to ferve verb, yi^p-o^-
the Cure ; but then withal, the King, though he did not fupprcfs
fuch Spiritual Monopolies, yet made a Law whereby he Ordained,
» I'h. c
2 2 4 ^J ^ppropnatiOTis,
That in every Licence of Appropriations to be thenceforth grant
c-d in Chancery, it Inould exprefly be appointed and contained*
That the Diocefan of the Place fliould take care to provide an An-
nua! competency or convenient Turn of jMony, to be yearly iffuing
- , and paid out of the Parfonage-Fruits of that Parifh towards the
^^'^'•'^' ~ maintenance' of the Poor thereof , and for a fufficient fubiiftance
^ , ^ ^ and endowment of the Vicar (<'/). By the Statute of i^ R. i.
cap. 6. """ "' f'^' ^- '^^'^ 4 ^' 4" ^^P* - -• ^^ ^'^ Provided, That where a Church is
Appropriated, a Vicar ought to be Endowed. If the Cliurch- be
iull, theconfent of the DioccTan, Patron, and Incumbent are ne-
ceflary to an Appropriation, alter the Kings Licenfe firfl had and
obtained in Chancery : But if the Church be void, then the DIo-
cefan and the Patron, upon fiich Licenfe from the King, may con-
(£)PIowd. in elude it (f). And as to the Diflblution of an Appropriation, the
GraidoTi's Cafe Patron's Prefentation of his Clerk to the Ordinary, with his Infti-
fo. 4516. &c. tution and Indu6lion thereupon, is fuflicient to efFe*51: It, and puts
jy_ °'_ * ''' (4.) Although ^appropriations at their Original were tolerr.t:;d
only to perfbns Eclcliaflical, and that in order to their better Ho(-
pitaljty , yet now they are become as Lay-Inheritances , and
adapted as well to perfbns Secular as Ecclefialiical, and to Bodies
Corporate as well as to perfbns Private or Individual, who by
virtue of their Right and Title to a Purfbnoge or Spiritual Benefice
may take the Profits thereof to their own proper ufe, maintaining
only a Vicar upon the Place to fervethe Cure. Anciently and Ori-
ginally thcfc Appropriations came from the Pope, afterwards tole-
rated by King.-, 6c with the confent and approbation of the Ordi-
nary: So that now Appropiiators and Appropriations are no other "
' than 7_.ay-Paifons and Lay-Parfonages ; which Lay-Parfbns as they
are the Proprietai les, the Common Law allows rhcm to be called the
In cum hen fs, and him that hath the Church by Appropriation, Par-
fon Ir/7parJonet\-md ^Ithou^h. they arefaidtobc perpetually Appr-o-
'i) Co. 1 1. 10. pj-iate (^), yet may be dilToh'ed and become Propriate again, as in
aWw. 4^.5. cafe a Corporation to which it belonged, fliould bcD.'flblved , or
in ca/e tlie Advowfbn fhould be Recovered by a Title more Legal
and more Ancient than that of the Appropriation^ which as it was.
ovigiiiallytolers^ted only to Spiritual perfbns, fo never without the
Ordinary's Confent and approbation ; confonarjt whercunto are
the Seventh and Eighth Canons of the Council held at Gangra,
where a Curfe is pronounced upon all fuch as fhall prefume top-ivc
orreceivc the Church- Fruits, otherwife than by the BifhopsDifpen-
fation, or of /uch other as by the Bifhop fhall be appointed there--
unto. Nor was it ever in the Primitive times held lawful for meer
liay-mcn.and Secular pcrfons to have any thing to.do.v/ith the.
Church ,
Of Appropriations. 225
Church Revenues; It was an Obfervatlon of Stephen Bifhop of
Rome, in the fecond Century in his fecond Epiftie, Laicis^ucqucy
^uamvis Keligicfi fnt^ nulla tamen Ac Ecclejiajficis Fccultatibus
difponendi legit ur unqiiam tributa facuhas ; which Jonp- after was
alfb repeated in the Council of Lateran under Innocent the Third,
c. 44. And in the iiHing of fuch vacant Appropriations as were
granted to Reli£ious HouleF, the Bi(hop was impov./fr'd hy Law
to oblige the Proprietaries to let out for the Vicar Incumbcnr fuch
a convenient Portion, as the Bifhop in his Judgment Oiould be pica-
fed to allot. Vid. Alex. 3. adEpfc. Wigorn. De Frmh. 0^ Dig. c.
de Monach.
(5".) Whereas it hath been formerly hinted, §. 5'. that Apprc-
priations have heretofore been granted to Nunneries, Hchart Chief
Juftice is exprels againft it, That a Benefice with Cure could not be
Appropriated to a Nunnery, though the Pope made many de
fatlo. Citing Dytr in Grindms CaJe, faying, that it was a thing
Abominable , both againft the Law of God Qo), and the Law of //^^ j q^^.
this Realm; for Beneficiumnon datur 'Nift frofter Ojf.ciuT. Nor is 34.
it a fufficient Anfwer to fay, the Cure might be ferved by a Curate i Tim.z.i i.iz
for them ; for the queftion is not. How they might mike a Curate,
but how thcmfelves were capable; for it muft radically veft in the
firft Grantee, before it can go in title of Procuration or Deputation
to any other: For the proper and operative words which make an
Appropriation, are fuch as muft make the Patron and his Suc-
cefTors perpetual Parfons ; yet if a meer Lay-man , or one wholly
illiterate be Prefcnted, Inftituted, and Indu6led, this is not a meer
Nullity, but he isaParfon de fatlo, as having all the Ceremonies
to make him fuch, and his Infufficiency muft receive Examination,
yet no difpenfation can make hira a Lawful Parfon, nor fubje£t to
Deprivation, becaufe It Is Malum infe; but in the other Cafe the
Incapacity appears in it felf (i). Nor are Appropriations regulaily r^^ ^^^i^ j^
grantable over^ neither can they endure longer than the Eodiesjac. rot. 2542,
whereunto they were firft Appropriate, becaufe it carries not only C.B. Coh and
the Glebe and Tithes (which may be granted awayj but it doth Glo-jcr \qx^.
alfo give them the Spiritual Funaion, and doth make the Parions f,i||'^P^^,^^^7'
of the Church, and doth Supply (fo Hobart Chief Jufticej hifti- f|ot> -j^^p^
tution and Induction, which being the Higheft parts of Trulh, can-
not be eftrangcd : And therefore the Inftrument of Appropriation
runs in thefe words, 'vi':^. That they and their SuccclTors ( not ^^^ Hill- ^s-
their Affigns) fhall be Parfon?, or by Fer^pbrafls, hold the Church -^^-f^^; ,' ^ '^'
in proper ufe {k). Llkewife when an Appropriation was made ^g'.^ GUkri
by the King asthe Supream Ordinary, or by a Bifhop as the Or- Gerr,rrd zpA
dinary under him, the Inftrument thereof did run in t\\ei'kortheHfla't■r|h.^nl,
like ^"l"''^- i^cp.
226 Of Appropriations.
like words, 'ViZ,. ( if by the King j Authoritate mfira Regali, { if
by the Bifhop with the King's Affeat) that it was Authoritats
noHra Or dinar ia^ Ecclejtatn Varochialem up B. tali^&c. Anne^i-
ffJUSj Appropriawus^ d^ Ummas per Vrafentes.
(6.) Appropriations of Ancient time are not now in thefe
daies to be quelficned as to the Original of them, if they have
,,x „ . ever been lb reputed and taken for Impropriations (J). To
Eliz.. in Cam. which purpole It was relolved m tlic time ot ^ueen tliz.ae!etb
Scacc. Crimes in Chancery by Egertcn Lord Chancellor of England^ being aflill-
and Smith'^ ^^ y^\i\^ the Principal Jud es, That although Advowfon doth not
^^^^- pafi by the Grant of the King in ftriftnels of Law, by the words
par. 4. ^^^ pert'mentns\ yet It fhall be intended in refpeil of the Ancient
and continued pofldSon, that there was a lawful Grant of the
King to H. B. &c. and all ihall be prefumed to be done, which
might make the Ancient Appropriation good : And the Reafbn
thereof there given is, for that if the Appropriation had been
drawn in queftion in the Life-time of any of the Parties to It, they
might have fhewed the truth of the matter ; But after fo many
SucceflTions of Ages , in which the Church was elteemed to be
rightfully Appropriated , the Appropriation fhall not n©w be
{w) Hill. 4. drawn in queftion (m). For the lame reafbn a Vrocedendo was
Jac. in Chan- refufed to be granted in Chancery in the Cafe of the Lord St. John
ctry, Pridle, q^ Bletjo, and the Dean and Chapter of G/o«£;^/?cr, the Court then
^iVniJ^}/ giving for Reafbn, becaufe the Defendant and thofe from whom
Cafe. he claimed, time out of mind had had the poffefHon of a Parfb-
nage as Impropriate ( faving for fbme fbore time j ) and becaufe
it fhall be a dangerous Prefident for Owners of Impropriations, to
maintain the Appropriations to be perfe6t in all points and cir-
cumftances requlfite to an Abfblute Appropriation, the Appro-
(„) Trin. 29. priatlons being made of Ancient time (w). The Like Refblution
Eliz. in Chan- Was given by the Court in Hanfion and Cocketth Cafe, viz,. That
ceiy. Lord whether an Appropriation be good or not, cannot now be called iil-
St. 'John and ^^ queftion, but fhall be intended to be good, and to all requifite
the Dean and ^. ^ n / ^ t> » ^
Chapter of Circumftances {0)..
Gloucejfer^s
Cafe. Vid.Co. 12. par, 3. ace. (0) Mich. 8. Jac. B. R. Hunfion and Cockett's Cafe Cro. 2, par.
2^ 10.
(7.) An Appropriation cannot in any cafe be made by the Pa-
tron himlelf only ; yet where the King is Patron, it may be made
by him Sole. And although upon every Appropriation there
ought to bean Endowment of a Vicar, yet a Vicarage itfelf En-
dowed may (as hath been held by the whole Court) be Appro-
priated,, but not to the Parfbn^, (and as In the Book ii H. 6. ) is
fich.
Of Appropriations, 227
fuch a Vicarage, as may afterwards be diffoked (p), Andifacp^Trin i6
Leafebe made of a Parfonage Impropriate by one, who hath notjac. B. B.
any thing therein during the life of the Incumbent, it will be void ;^^^r^'i Cafe.
nor can an Impropriation be made to aGhurch which is Full ofPopb.i^^^i^s.
an Incumbent, but by Special words. (^) h hatii alfo been held, 1.^^ ^J!'''- ^^ '
That a Vicarage Perpetual could not be diffolved after the Sia-tT^B^ofCov.
tuce of 4 K 4, and that the Pope had notany power to mai<e zny&Uchf. Gafe. -
Ordinance againft that Statute, by which he hath not ^ny right Vid. ibid. ^0^-
10 meddle with Advowfons, Bent,ficts, &c. and that by his BulJs-^"" ^ Mnhaen
he cannot difpence with the Law, though they tend m ordme (^d^^^^i ^^^''^^'
par. a. Co. I o-
par.^ 43, in Um^itt\C^{Q. Vid. \9 Eliz.PloW. Core. 5-00. The Opinion of M^uiwood in Gren-
do7i\Czk. ace. Hugh Abiidg.verb. Appropriations, (r) Mich. i5 lac. B. R. Bnmn^Wade^
Cafe. Cro. 2. par. 5 i (J, 517,5-18.
(8.) Touching Appropriations there were Three canfiderable
points in Law, Refolded by the Juftices in Grendons Cafe:
(l;. That none is capable of Appropriation but a Body Corporate
or Politick Spiritual, which hath a Succeflion : For that the ef-
fea of an Appropriation as to the firft Inflitution thereof, was to
make the Body Politick perpetual Incumbent, and to have the Re-
aory, and that he hath the Cure of all the Souls of the Parilhion-
ers : and therefore he muft be a Spiritual pcrfon. (1) That the
King, Ordinary, and Patron ought to be affentlng unto every Ap-
propriation ; and that the Authority which the Pope had ufurp-
ed in this Realm, was by Parliament, An, 25- H.%. acknowledged
to be in the King; and the King being Supream Ordinary, might
of his own Authority and Jurlfdiaion make an Appropriation with-
out the Affent of the Bifhop. (5) That ai Appropriation may
be made by Apt words, when the Church is Full (as to i^^iy) That
rhel^arfon who is a Spiritual perfon, after that the Church fhail be (s) Pafch. ip.
void, lliali be Parfon, and may retain the Glebe, and the Fruits EHz- C. B.
of the Church to his proper ufej and that the fame fhall be a good ^^°^^' ^°"'-
Appropriation, when the Church (hall be void by death or other- ^^^ ^° ^°'-,
(9. j It is brou.eht by way of Report to us. That it was the O-
pinion of the >Mafter of the Rollsm the great Cafe of Confultation
which was argued in the Exchequer Chamber, the 1 8 //. 6. 21. J.
That an Ad vowfon could not be Appropriate without a Succeffion'
although that the Incumbent purchafed the Advowfon by Licenfe
to ^ hold to his own ufe. Whera it was further faid. That if a
Prior were feized of an Advowfon to hira and his Heirs, and he
purchafe Licenfe of Appropriation, and that he and his Succeffors ^
* S f might "
2 28 Of Appropriations.
plight hold the Advowfonto their own ufe; yet the Advowfoi*
(hall defcend to his Heirs : But in fuch cafe, if he would have the
Appropriation to be good, it were beft to alien^the Advowfbn, and
after to re-purchafe it to him and his Succeffors ; and then the Ap-
(t) Hugh A. propriation will be good, (fj All Appropriations have been ufu-
bridgm.vcrb, ally to Corporations or perfons Spiritual, and not to Bodies Poli-
^f^e^rittu. jj^i^^ confifting of meer Lay-men, or Lay-Corporations. And in
Aldtn and Totbil'^sC^ii'e it was in queftion,Whether the King, fince
the Statute of x5 H. 8- might jpy his Letters Patents Appropriate a
Church Parochial, which was before Pre(entative,unto a Lay-Cor-
poration, all the Members of the Corporation being meer Lay-men:
which Cafe was not then Refolved. («)
(u)rnn'9Car. (iqJAs a Church Parochial might be Appropriated; fb a
B. ^-'if'^'^ Church which is Appropriated to a Spiritual Corporation, may
C^J become difappropiate, if the Corporation be diffolved. (x) AKo
Hugh. ibid. if the Advowfon of a Church were by Licenfe granted to a Prior
(«)Vid. 3.E. and his Succeflbrs,, and afterwards the fame Church were Appro-
7. 4. Finch. priared to him and his Succeflbrs : fo as thereby they became per-
Commcnt. 14. j^^^j Parfons Imparfonees i In that Cafe if the Wife of a Gran-
"'^* tor were endowed of the Advowfon, and Prefented a Clerk who
was Admitted, Inftituted, and Induced, the Appropriation would
be defeated for everj for the whole Eftatc of the Parfon Iraparfo-
nee is thereby avoided : And-fo it was Adjudged, x E. 3. 8. fed
n Paf h. xt huare. For in the Cafe of Ltincafier and Lncas, (y) it was held by
iL. B. R. the Court, that in fuch Cafe the Church was Difappropriated but
during the life of the Wife : and after her death it ihould remain
, \ . tr- •- as Appropriated (p^)'
B R. Loai?7. (I I.) Sir H. H.^^r/ Chief Juftlce, in the Cafe of Co/? and Glovtr
(i)Mich. 10. * againft the Biftiop of Ccww/r/ and L/c/yf^/^C^) fays, That the pro-
Jac. rot. 2642. per and operative word that doth Appropriate, is to make the Pa-
tron and his Succeffors perpetual Parfons; and in the Cafe o^ Wright
(b) Hill. 1 t; againft Gilbert Gerrard and Richard Hilderfljam, (h) That the
Jac. Rot. I J 10. Inftrument of Appropriation runs in thefe words, That they and
their Succeffors (not their Afigns) (hall be Parfons,or by Peripbra-
fa, hold the Church'in proper ufe ; and the words o{ Appropriat-
ing &re, that they may hold Ecclefiam & Ke^oriam inpropriosufus,
as In Grindon^s. Cafe; and fays further, that Appropriations cannot
endure longer than the Bodies whereunto they were tlril Appropri-
ate becaufe It carries not only the Glebe and Tithes, but doth alfo-
give the Spiritual Fundion, makes the Parfons of the Church, and
fupplies Inftltution and Indudion.
(la.) A Prior wasfclzed of the Advowfon of a Parfonage ; the
Church being void, the Bifliop gave him Licenfe to hold it to his-
S;. proper ufe, and there was not any Endowment of the Vicarage.
Of Apfropnatio?is* 2 29
The Jury found the Statute of 4 H. 4* of Appropriations : and of
17 H. 8. which gives Priories, &c. to the King: whether the Ap-
propriation were good, there being no Endowment of the Vicarage;
And, whether the Appropriation without the King's Licence was
good, was the Queftion. Refolved, That whether the Appropriation
be good or not, cannot now be called in queftion; but it (hall beln-
tended to begood,and have all requifite Circumftances; But in this
Cafe, becaufe the Defendant claimeth per Prajentationem Regis
ratime Lapfus ', Whereas the King, if he hadany Title to Prefent, ^^^ ^^j^ ^
it was Jure Corona, the Prefcntment of the Plaintiff was utterly jac.B. r. huh.
void, and theiPlaintiff had no Title, who brought an Adion upon/o* & Cofket's
the Statute of l £. 6. for not fetting forth of Tithes (c). ^*^^
S f z CHAP.
230
CHAP. XXL
4
Of Commendams*
I. What a Commendam is : or the Legal defer ipthn there-
?^
X. The Ktngmay diffence with the holding of divers Benefices in
Commendam, not •withflandmg the Canon of the Laceran
Council againft Pluralities.
3. Three degrees o/Commendams hy the Canon Laiv.
4. A defcrtftion of a StmeHral andTemprary Commendato-
ry.
5-. The provijion the Pope made in granting Commendzms -jcer^ I
tain Benefices in the Church of Rome ne'ver given in Commen- \
dams.
6. What the Canon in Commendams ad Tempus or Perpe-
tuo. ^
7. The grand Cafe of a Commendzm at the Common Laiv, be-
tiveen Kiffin and Afcough, and t her sin great variety of
Learning touching that Subje^.
8. Several C on fi derations in Law touching Commendams.
9. An Irifh Cafe with great variety of Learning , in reference to
this Subje^.
I.
Commendam (Ecclefia Commendata') is a Benefice or Eccle-
fiaftical Living , which being void , is commended to
the charge and care of fome fufficient Clerk, to be fupplled
until It may be conveniently provided of a Pallor : And this was
ihe Original of what we now commonly call Commendams.
Burand de Benefic. lib. 5-. cap. 7. That perfon to whom the
Church IS thus Commended , hath the Fruits and Profits thereof
only for a certain time ; whereby the nature of the Church is not
chargrd, but is as a thing depofited in his hands as it were in Truik
being concredited only with the care and cuftody thereof, whicP
may be revoked. Thus when a Parfon of the Parifh is made the
Bilhop ol a Diocefs, there is a Cejfion of his Benefice by the Pro-
ia. "44. ^' ^' ^f^^ continue Parfon thercof,and fhall be faid to hold it in Com-
Utch. Rep. ^/7^f • ('') So that it may properly be thus defined, Commenda
fo 2 3 6, 3. 3 /• eJtEcclefia Cufiodta ahcui CommiJJ'a in tempm, gratia evidentis ne-
cejfitatii
Of Comnteniams, 231
ceffttain & utilkatis. GlofT, in 'verk Commendare^c. nemojewcepr,
JeEleBan \[h.6.& Andr.m ditl.Glof For hereb)^ the Bifhop com-
mits the care and cuftody of a vacant Church to lome one, whom
heConmtutes as a general Admlnlftrator thereof. Cc^rr^./^ Sacerd.
mater p I c 6. nu. 3. &diU.c. Nemo ^or Commen^are mthisfenfe
is no other than Deponere. L ?ublms,ff. Depofm,& U Ommendare.
k de verb. Sign. And he to whom the fame iS fo committed is m
the Law termed Commendatonous having the cuftody of a Vacanc .
Church and the Fruits thereof only for a time ; and the Beneficmm
Commendatum we call Commcndam. Petr^s Gregorious make tbs
Ccmry}eJidan^.o^ a Church to beon a double account, o/iZ.. either m
uttlitatcnt Ecclefia or Commendatorii; In the former cafe, he fays,
the Commenda gives no Title to the Commendatory of the Bene-
fice, but is only a Cuftody or Truft which may be revoked, and
confequcntly repugnant to the nature of a Benefice, which is Per-
petual: In the other Cafe, the Benefice is/held 10 ht z Commenda
made in utilitatem Ccmmendamii, which he may hold and poflefs
as long as he lives. Tetr. Greg, de Benef. c. 1 o. n. 13.
(l.) By a Canon of the Lateran Council no perfonilcclehaltical
could hold Two Benefices with Cure of Souls y;wM/d^/m J, but
by the taking of a Second the former would be v o'ld.C one. Later. &
F.N.B. ^ S. L.& Co. Par. 4.-7 ^.& Lindw-ConfLTro-vinJePrak
cap. Judiftis.', yet might the King it feems by the Common Law,
^notwithftanding that "Canon, grant Dilpenfations to hold divers
Bencficf^s in CommerJam ; as at this day he may notwithftanding
the Stat, of 21 H. 8. For the Stature of a5 R 8. that takes away
the Popes ufurped power of granting Commendams, &c. m this
Realm, doth veft it in the Crown de jure, as alfo dorhthe Statute
of I £/;^. and (from and under the Crown) in the Archbilhopof
Cjinterbury, his Commifiaries, &c. And as hei:etofore the Pope did
by uftirpatlon in this Realm, fb now ^ jme & ex Regali Autho-
rLte, may the King grant unto aConfecrated Bilhop a l^'^pe^If on \\y^Xn/^
■Recipere & obtinere Beneficmm cum Cura anmarum-> and to hold q^^^^
the fame in Commendam {Jr).
( 3.) In the Cafe of Colt and Glo-vtr againft the Bilhop oiCo^jm-
ary and Lichfield, according to Sir Hen.Hobart Lord Chief Juftice,
'out of the Canons, Commendams are fxid to be of Thi es Degrees,
ore Semefiris.SLnoihtv Perpetuavel ad vham^ third Intermedia or
Diuturnajed Limitata;. and fomtimes called Ttmporalia or lem-
poralts, 'vel ad chtum Temper isfpalium Limitata.Llcmrj.extra l^.
de Prabendts, c. z. The Commenda Semepis did an(e out ot
natural Equity, that in the time of the Patrons refpite given him to
Prefent, the Church fliould not be, without a Proviiional Paftor,
*whlch was a Law of Neccfl]ry agreeable to the Law of Nature.
But
22 2 Of Commendams,
But after th^Lapfe juftly incurred, the Commendainh to ceafe, o
then the Ordinary may CoUatcThe CoTnmenda Perpetua 'vel advi-
tanSy is that which cannot be for a lefs time than for the life of the
Comrnendatory aWblutc. And the Commenda Intermedia^ dtuturna^
or' 'lewpdralis vel ad certum tentporis Japtium Limitata , is when a
Ccmmendais to a perlbn not for his life abfolutely, but fo long as
he fhall be Bifhop of fuch a place, or the like. Each of which
Dcgrets of ComrHendami doth refer to thtCommendam ohinerefCa-
pere, & apprebendere. A Di^enlation Commendam recipere, which
fhall make a Title, ought to have three Incidents ; (l) It ought to
be Recipere d^ convertete in ufus proprios. (^) It ought to be ad
utilitatetn Ecclefia^ vel Par fori a. (?) It ought to have the Affent
of the Patron. And he that is but t^ere Commendatorius is account-
able to the Ordinary, Vide C^/^ Evans and Afcough, in Latcb.Rep.
And not to the Commendam retinere^ which in truth is no Commen-
dam, though, commonly fo called; but is only a faculty of Re-
tention and Continuation of the Benefice in the fame perlbn and
ftate wherein it was, notwithftanding fbmthing intervening, as a
.teifhoprick or the like, which without fuch a Faculty would have
avoided It,
(4.) The Semeftral Commendatory is not reputed PraIatHj,hut
Procurator & Adminiftrator, habens titulum Canonicum; It doth
make FruSmfuos, hut ad providendumJibi& MiniHris;and what
.remains, is to be converted totheufe of the Church. (7r<'^.X i»
Aa. 1 248. Concil.LHgd.An. I rj ^.Glojf. incap.Nemo. i ^,De Ele^ione in Stxto.
And John ^ Jitbon, upon Otbohon^s Canon or Conftitution De
Commenda EccleJiarumfiLjs^haCi Commendare idem eft ejuad De-
fonere,fiu Cnfodia Committere : And all agree that fuch a Com-
mendatory is not Prtf/<?/«/, but Proc«r<?f or; babet tamen Legitimam
Adrntnilfrationem ad Colligend. & providend, Minifiris; ea ver»
f «45 fuferfnnty ad utilitatem EccleJIaconvertenda. Commendare (ut
'"^ - ait Papin) nihil aliud efi ejuam deponere, I. Lucius, S. Depojit. ^
I. Commendare ^ ff. de verb. Sig. & I. Publia, flF. Depoftt. &GUff.
ibid. But as to a Perpetual Commendam, Perpetuity, and the difpo^I
. of the Fruits muft concur, (c) And as a Patron cannot Prefent to a
ReSTdc Tri- ^^^^J^ch Full, fb neither can a Commendam be made to a Church
«n poir. certain that is then Full; for there is no difference betwixt a Com^
mendam and a Presentation, but that the one prelcnts the Parlbn
to the Church, the other commits the Church to the Parfon^ both
being incompatible when the Church hath its proper Reftor ;
The Canons alfb fpeaking of Commendams, rely much upon Ecch-
fiasvaCantesi necejjitatem & utilitatem Ecclefia vacant es. And
Commendams were not made anciently in general terms, to any
Churches uncettain, but to fome certain Church then void. Aifoi
the
Of Comtfiendams, 23 3
the Patrons confent Is neceflary to a. Qmtnendam^fecunilum omnety
Fatroni confet?fus,d^ omnittm nm ladi pojfuntyre^uiritur. And again,
Quod fatis obfer'vant Pralati, ejui mjt Prafentafi per PatromSf non
faciunt Commendas. GlojJ.in Conctl.Ludg.d^ OthobpPro'vinc.Hob.
Rep. in di^.Caf, Colt and Glover ^verf. Bijhop e/'Covent.c^ Lich-
field. Likewife it is further aflerted by Sir H. Hohart in the Cafe
aforefaid, That the Temporary Contntenda brings with it fo many-
Incongruities, Inconveniences, and Abftirditics in Law, as cannot
be born; for thereby the Church is neither altogether void as it re-
mains in the Cafe o^ aCommendamSemefirisy which is but a Seque-
ftration of Fruits and Cure till the Patron P relents; neither is the
Church ablblutely Full, for then it fliould he Plena df Confftlta,h.
e. plena de pojfejj'orey ^ confulta de reclore (d). ^'O Hob. ibid
(f.) Commenda iirfht Canon Law hath a nigh affinity to ColU' '^^^°
tion. Rebuff, in ^.Statuimus in 'ver. conferantur. de Collaf. and Is a
Canonical Inftltution^ or a Canonical Title : cap. Dudunty in 2. de
Ele&: Et fi intitulum non detur Eccle/ta-^^ndwhcn the Commenda-
tory dies the Benefice is void, ut alia in titulum fo^eJJ : Rebuff, d^
pacif. Poffeff. nu. 42, 45, 44. The Pope was wont to provide by a
Commendam, when he gave a Benefice in Cuftodiam, that he that
had the Cuftody thereof, fhould not thereof have /r//^«jy»w: cap.
Nemo, de EleB: in 6. birt (hould rcftore the lame: Can. placuit 1 o.
f . ^. unlefs he exprels'd in the Grant (as he often did) that the CiifH^
mendatory Ihould convert the Fruits thereof to his own ufe* It is
in Law provided by the Commindam, that the Commendatory Ihall
not be, nor faid to be Titularies Eccle/ta conceff^e, becaufe he liath
another at the lame time, and together with that he cannot aliang
habere in titulum : cap. dudum, in 2. de Elect, cap. fin. 2 1. cj. i.
For the Law compares the relation that is between a Re6lor and
his Church to that of Man and Wife, and in. expre/s terms calls it
Matrimcnium'y cap.Jtcut'vir. ej, i. and lays, it is as odious to have
more Benefices than one at once, as more Wives than one at once;
cap^ de multa de Pr abend, whence it may aptly be inferred; That
Plurality is a kind of Ipifitual Kgamy or Polygamy. Mpreoverj
by the Canon Law a Commendam may be either for a certain time,
or for life: cap. Extirpanda §. cjuia 'vere. De Praben^d^. ^c. nemo de
Ele^o. in 6. And during the vacancy of a See the Chapter may
grant the Commendam ad tempustc. ftgnificatum de Prab. d^ di^.
c. nemo. If the Commendam be granted in Perpetuity or for life, it
is vicetitult: Nam adtempus Collatio fieri neqttit Benefiat: c. fi gra-
tiofe. de Refeript. & c. fatis perverfum. 66. Dift. In the Church of
Rome there are certain Benefices which never wont to be given
m Cvmmendam^. (iieh asthatof the Holy GboB'm l^icily^ St. jQhn
2 ^A OfCommepdams*
o: Jerujalewj St. Anthony, the Blcffed Virgin Mary, and others ;
and this by a Conftitution of Pope Alexander the Sixth, as a mark
C'f grace; becaufethey were given to the Fraternity of theft Qr.d^s
in tltuhm Rebuff.de Coirim^ndis^m'. 4I. Prox. Benlf. -n ♦':,. >./;,
-n:(^'.) .Whether any man inferiour to a Biftiop , may Ecciefiant
Cow«7c«^^r^, "is a Queftion moved by Rihuffus, who holds itin the
affirmative, provided it be a Commenda only ad Tem^us, that is,
only for Six months-, Rebuff. Kefpon.-Jl. deCommenda. Which opi-
nion Fanormitam feems to be of, by laying, Infenorem a Papa non
poffe Terpetuo Cowmendarejed adTempus:/ic Panorrn. inc. ft conr
fttterit.tn i, liotab. de Jccufat. For the CanoniUs of the Romiiij
Church do hold. That Comwendare tn perpetuum potefijolus Papa,
u4d tempus fix menfium ^uilibet Or dm anus pot e(i : Likewife Panor-
nntan fays further. That a Chapter (Sede'vacante) poffit ufque ad
(ex menfes Commendare : Panor. e^Felih. m. c. cum olim ii.c^.de
Major. &obed.&]o. Fvanak. mTraB.d<;.0ffic.6^ potefLCapituli
Sede -vaeante. m ipart.q.'^. whence Rebuff us concludes that any o-
ther^wi Bineficta conferre potefi may do the likej it being as a Rule
in Law, That illud njidetur permffun), ^uod non eft prohibitum: c.
mnj concupifcentiam. de Cmfti. & L. pr^apiwus C. de Jppellat.
The Canon Law, to which only we arc beholding for the cieareft
apprehenfions we canpoffibly have o^ Commendams, allows a very
extenfive Latitude to the Pope in the granting and revoking there-
of ; but this doth not concern us further than as the Popes Eccle-
fiaftical power, heretofore exercifed in this Realm by way of U-
furpation, is now veiled in the King de jure ; yet it will be agreed
on all hands, that a Commendam in the very nature of it, is meer-
ly and properly Cuflodial, that Church or Benefice being then
granted in Commendam, <juarJo m cuffcdiam, feu Cuffodia caufa
datur: c nemo, de EltB. in 6. And as he who hath only the Cuftody
of a thing, non factt fruBus fuos : (6 neither he (accoi din^ to the
Canon Lawj who hath a Commendam, without the Pcpes fpecial
grant thereof to the Commendatory: c. placuit, 10. q. g. Rebuff^,
de Commenda, who yet by the fame Law poffit expenjas fdcereex
ndittbus Benefiai Commendati, fumere ex eo aUmenta, & debita
ferfolvere, ficut is ejui titulum habet : c. I. J^.Solutlo. % afferic
Archidiac in cap. ejui plures. xl. c]. i. _ / .
(7.) The grand Cafe of a Commendam was that of- E'vans and
Kiffin ag^mii Jfceugh, which being two daies argued by the Judges,
and by Noy Attorney, is acutely and fuccin^ly Reported thus,viz,.
InTrefpafs: Dr. Thornbury being Dean of Tork was chofen Bifhop
of Limrick in Ireland : but before Confecration or Confirmation,
he obtained a Patent with lar^e words, Non obfiantereti?iereyaleat
OfCommendams . 235
in Commendam the faid Deanry, C^-f:. And afterwards hewascho-
fen Bifhop of BriBol; and then alfb before Inflallation he obtained
another Patent , with a more ample Difpen&ion of retaining the
Deanry in Commendam. It was agreed by all. That the Church
or Deanry, &c. in England fliall be void by Ceffion, if the Par-
fbn, or Dean, &c. be made a Bifhop in Ireland. For the Canon
Law in that is one through all the World. Alfa 7re-/;j,W is govern-
ed by the Laws of England^ and is now as part of England by
Subordinacy. Note well 45- £.3. i^.h. Confirmation under the
Great Seal of £»^/<?W is good in this cafe j Confirmation under
the Great Seal oi England of a Prefentation to a Church in Ireland^
of the Heir of the Tenant of the Kingj and that a Difpenlation
under the Great Seal o'i England \s good in this cafe , whithout
any Patent of it in Ireland^ 'v'td. 8. AjJ'.i'j. 10 £. 5.4,^. An Ex-
change of Land in England for Land in Ireland is good. Note
20 H. 6. 8. Scir. fac. fued in England to Repeal a Patent un-
der the Great Seal of Ireland, -viz. the Irijh Statute ^ Eltz.
cap. 4. That an Ir//7; Bifhop may be made under the Great Seal
ot England. Note, Stat, i iE. 6. the Jrifi BliTiops fhall be Do-
native by Patent of the King under the Great Seal of England;
yet the King m^y let thera be chofen per Congeed' EJltre, &c.
(1 J -%' Attorney argued at Bar , and Co ftated the Points of
the faid Ca(e by thcmfelves : If a Commendatory Dean by a
J^etipere in Comrnendarn may well Confirm a Leafe made by^he .. y \\]u
Blfhop y for it is Agreed , Thnt a Commendatory Dean by Kect-
fere in Commend, cannot Confirm, becuufe he is huxa.pepoJitarius.
Note 1 9 H. ^. 1 6. I a H. 4. 20. 17 tJ, 8. 1 5-: a Commendatory
(hall be fued by that Name, and by fucha Commend, he may take
the profits , and ufe Jurifdi6lion, and yet is not a Dean compleat.
JNote, he may make a Deputy for Vifitation, but not for Confir-
mation of Leafes. Note, if there be two Deans in one Church,
both ought to Confirm. Vid. Dy.i^z. Co. Injl. 20. ^.(x) The Se-
cond point, if fuch a Bifliop be cholen to another Bifhopricic, if
now the firfl Church in Commend, (admitting that there was a
Full Incumbent) be void prefently by the Eleaion and aifent of
the Superiour (x-i^.) the King: And it feemed to him that it was,
becaufe there need not be a new Confecration ; and he vouched
Vanorm. 2 par. 101. The Bifliop o^ Spires was cholen Bifhbp of
Treves, and had the aflent of the Pope, and he came to Tre'ves^
and there found another in pofleinon ; and he would have
returned to the former Bifhoprick , and could not. He al(b Cited
8 Rep^ Trollop's Cafe, That the Guardianfhipof the Temporakies
ceafe by the Ele6lion of a new Bifliop. Note, that Serjeant Hen-
den, who argued on the contrary, vouched Mich.4..Jac.MajyB\'
T t ■ ' ^ d^Q^
2 3^ Of Comrjiendams.
fhop of Carlijle made a Lcafe to the Qiiecn, and a Commidion \C- |
fued out of the Exchequer to take ir, and the Dean and Chapter
Confirmed it before the Inrolment of it ; and yet Adjudged good :
That Cafe was for the Caitle of Home. Fir/l, the Judges having
Hill 22. Tac ^'*g>J^d two days, Refolved, (i) That all Commendams are Di^
B.R. rot. 1 i^p. penfations, and that Ccffion commenced by the Canon and Couri-
Evans 8c Kiifi7i cAoi Latevan. (i) That the King may difpence with that Ca-
zg-xxnil ^fcoHgh non, 1 1 H. 7. IX. For the Pope might, and now by the Statute
Noy s Rep. ^ ^ H. 8. that power is given to the King cumtilative,hy way of Ex-
pofitlon 'vetens^ and not by fntrodu6lion ncvi Juris ; and by that
5tatutea concurrent power is giventotheArchbilhopof C7<««/'^r^«r;',
and may be granted to the King, or by the Archbifhop, ccc. (3)
That the Diipenfation after Eleilion to the firft Biflioprick and be-
fore Confecration, 6cc. and alio the Difpenfation after Ele61:ion to
the (econd Bifhoprick, and before Confirmation, is good enough in
both Cafes, and he remains a good Dean to Confirm, &c. and af-
tcrv/ards the Judgment in the Cafe, being an A6tion of Trefpafs^
was given accordingly.
■ (8.) A Ccwwendam'xs to be granted NeceJJltate evichnti^ veluti'
Jitiite Ecclejiie Juadente, and in the Infancy of the Churchy quando
defmrunt Fafiores, they were neceflary ; A Commendam ordinarily
is but for \\\ months, and he that hath it is Cuflos only, the other
\ is extraofdinary, and that is for life , and he is an Incumbent.
Kill. 1 4. Jac. The King by his Prerogative Royal may grant a Comwendam with-
«i the Excke- q^. ^j^^ Statute ; yet if fiieh Commendam (liall be good, it may be
^Glonjer ^^^ ' ^^^Y iTiifc^i^vous to the Patron. It is it feems agreed in the Books
RcU. Rep. of the Common Law, that the ufe of Commendams in their firft
Inilitution was lawful, but not the abufe thereof; and that a pef-
Hill. 39 Eliz,. petual Ctmmendam^ 'viz,. for life, was held unlawful, and condera-
B. R. y^rfmg-r ned by a Council of 700 Bifhops. It is like wife Reported rous,Thdt
znAHolLwd's vvhere the Incumbent of a Church was created a Bifhop, and the
^^ . Queen granted him to hold the Benefice which he had in Cow»?f«-
darn: It was the Opinion of the Juftices, That the Queen had the
Prerogative by the Common Law, and that it isnot taken:away by
the Star, of 35- /:/. 8.
Path. -9 J^<^* (c). ) In a Q^iare Impedit brought bythe King againft Cyprian
h \s^ 'h*" ^°^f^f^^ '^"^"^ ]^obert Wah^ on a Special plea pleaded hy Wale the
K.in'^ and Cvpr. Iri^^u^bent, the Kings Attorney demurred in Law; The Cafe in
Ho>jefal,6c iie^. fublKince, wasthis, viz. the Corporation o^Ktlkennyy being Patrons
iVaU. of a Vicarage within the Diocefs of O/Tcry^ Prefented one Patrick
Davis Rep. fynne thereunto, who was Adlmiited, InfHtuted, and Indu6}ed.
After tha^, during the Incumbency of the faid Fjmte^ Adam Loftus
• 'Archbifhop o( Dublin, 'And ^whofe Forth Dodor of the fl\'vl\
Law,
Of Commendams. 257
Lawjbeing Commlffioners Delegates for granting of Faculcies,and
Dirpenfations in the Realm of Ireland y according to the Star, of
18 H. 8. c. \6. by their Letters Dited 9 Oil. 1% Eliz,. granted to
John Horfefaly then Bllhop o^ Ojfory, That the (aid Biftiop uni^m
'vel plura Beneficia, curat a vel non curata^Jui'vel alieni Junfpatro-
nattis, non excedentia annuum 'valorem cjuadraginta Lihrarumy ad-
tunc 'Vacantia 'vel (jua per iwpojlerum 'vacare contigerm(,perpO'tua
Commends tituh adipijci, occupare^ retinere, omnejo^ue fructus ad
Familix jua fuflentationem convertere polJit, jurihus fii^e infiitutis _
^uibufcunque in contarium non obfiantibus. Which Faculty or Dip
penfation was after ratified and confirmed by Letters Patents under
the Great Seal of Ireland, accordingr to the Statute of z 8 if. ^.c. 16
After this, viz,, xo Maj, An. g 8 Eliz. Patrick Fjnne the Incun:^-
bent died, whereby the laid Vicarage being void, and Co continuing
void by the [pace oC Six months, whereby the Biihop had power to
Collate thereunto by Lapfe, the laid Bifhop by virtue of the faid Fa-
culty or Difpenlation adeptus e/?, occupavit, d^ retimtit the (aid Vi-
enrage perpetuie Commended titulo, and took the Fruits thereof to his
own u(e, until the i g Feb. An. idog.on which day the Bifhop died:
After whofe death the faid Cjprian Horfefal, having purchaled the
next Avoidance of that Vicarage, Preiented the faid lVale,\v\io was
Admitted, Inftituted, and Inducted : afterwards the King Prefents
one Wincby^ho being diflurbed by the faid Horfefal and Waley the
King brought a Quare Impedit. Whether the faid Bifhop, when he
obtained and occupied that Vicarage by virtue of that Faculty or
Difpenfoion, were thereby made compleat Incumbent thereof, i'o
as the Church being full of him, no title by Lapfe could devolve to
the King during the life of the Bifhop, was the principal point mo-
ved and debated in this Cafe. And in the Argument of this point
(which was argued at the Bar firfl by the Councel at Common
Law, and then by two Advocates well verfed in the Cannon Law,
and at the Bench by all the Juflices) Two things were chiefly con-
fidered by thofe who argued for the Kings Clerk: (i) Whether the
Bifhop could by any Law have and hold that Benefice without fuch
DIfpenfation or Faculty, (z) What efFe6l or operation that Fa-
culty or Difpenfation fhall have by the Law. As to the Firfl, they
held clearly for Law, That a Bifhop by the ancient Ecclefiaflical
L2LV/ o^ England, may not hold another Benefice with Cure in his
own Diocefs : and if he hath fuch Benefice before his promotion to
the Bifhoprick , that it becomes void when he is created a Bifhop.
And this is the Ancient Lawof £«^/. as is often faid in the Bifliop of
St. David's Cafe, 1 1 H.4. (^41 E. 3. ^.b. agrees therewith. The
Reafbn is, for that the Bifhop cannot vifit himfelf, and he that
Tt z ha'tli
Of Advowfons,
hath the Office of a Sovereign, (hall not hold the Office of a Sub-
je6l at the fame time i as Hankfurd faid in the laid Cafe of 1 1 H.4.
And on this Reafon it is faid in j £. ;• 9. That if a Parfbn be
made a Dean, tlie Parfonage becomes void, for that the Dignity
and the Benefice are not compatible: So no Ecclefiaftical perfbn,by
the ancient Canons and Councils, could have Two Benefices wich
Cure fimul (^ femel, but the firft would be void by taking a fe-
cond. And this was the Ancient Law of the Church uled in
England long before the Statute of 21 H. 8. caf. i 3. which was
made In i\.ffirmance of the Ancient Law, as appears in Hol!and\
Cafe. Co. far. 4. And with this agrees the Books of 14 Edvj. j.
3 3. 39 Ed. I. 44. a. & N. Br. 34. /. And the Text of the Canon
Law, which is the proper Fountain of this Learning, proves It
fully j Decretal, de Fr^ehend. (^ Dignit. c. de multa: Where it is
faid, De multa proi/ideniia fait in Lateranenfi Concilio probihitam,
tit nullus di'verjus Dignitates EccleJiafiicaSy 'velplures Ecclejias Fa-
rochiales reciperet, contra SanBcrum Canovum tnHitua, d^c. Tra-
fent'i Dtcreto ftatumus , at c^ukuno^ue reciperit al/tjuod Benefi-
cium , cttram hahens an'imarum annexatn, ft frius tale Beneficium
habtbatj eo Jit ipfojure prfvatus, (^ Ji forte tllud retinere cotitende-
rit, etiam alio fpolietur ^ &-€. And with this agrees the Text in
Decret. Cauf. il. ^. i.vh. In duabus Ecclefas Clericus conferibi
nulla modo potefi. So that it is evident, that the BIfhop could,
not by any Law have or retain that Benefice within his Diocefs
without a Difperfation , which is Relaxatio '\furis , ■ and per-
mits that to be done, which the Law had before prohibited.
It is to be obferved , That Cct^menda '«Jt cjutsdam prwifio ,
and therefore Gcwez,. in Reg. de Idiom ate , faith , That Com,-
mendare ejl Frcvidere, d^ cjuod Commenda cowprehenditur fub
e^uibujcunque regulis de Pro'uijione ktjuent'ibus. And by the
Canon Law the Confent of the Patron is req.uifite,.. where a 'Be-
nefice is given in Cownandaw. Lib. 6. Decretal. c. Nerno. where
the Glofs faith, AdCtmrnendam vocabitur Fatronus, (^ ji qui alii
tx tali Ccn.menda l^eduntur. Alfo'mCon^it. Othob. de Comwendis
it Is faid Exprt-Uy, That Ccnfenfus Patroniad Commendam reejuirir
tur. The Canon Lav/ holds thefe Cowmendawsas very prcjud lea J,,
and that In divers rcfpe6ts ; and therefore fays, Tha.t Experientia
'docet/jccaJi(7i€ Cornmendarum cultum Divinum minui^ Curam ani-
rna-rmn negligi^ Jjofpitalitatemconjuetam d^ debitam hon Jewari,
rumis adijiaajufpcni, &c. 6. Extra, cap. Pafloris. And whereas
it is faid of a Bifhop, That he is to be unius uxoris 'vir j the Ca-
nonifls expound it, Thit he ihall have but one Blfhoprlck, ox
only one Cure; for they fay, itizt per Commendam Btgamia con-
trabitur m Ecclefia : Thefo:e it was well Refblved by that g^:>od
a^d
of Commendams, 23^
and pious Bilhop, who (when another Benefice was offered him
to hold in Commendam) laid, Abjlt ut cum Sfonfa habeam Conctc
hinam. But for the clearer underftanding of the nature and diP
ference of thefe Commeniams^ it is further to be confidered, That
Contmenda Ecclejltt, is nothing el(e but Commendatio Ecclejia ad
CuHodiam alter ins ; and therefore D^trref. cauf. ii. ^. r. Qui
plures^ the (rlofs there faith, Commir.dare nihil aliud eH qttam
depoftere. This Ccmwenda or Cornmendatio Ecclejia is divers,,
according to the nature of the Church, and Limitation or Con-
tinuance of the Commcnda: for a Cormntnda may be of a Church;
either Curate or non Curat a ; and it may be either Temporattea^
'viz,. for a time certain, as for Six months; or Ferpetua^ 'viz.
during the life of the Commendatorj. A Church Tvitb Cure
may not be given in Connyiendam , unlc/s upon evident neceflity,
or the benefit of the Church, 'vtx,. to fiipply the Cure till provi-
fion be made of a fufficicnt Incumbent : And therefore by the
Council of Lions it was provided , That a Parochial Church,
fhould not be given in Ccmmendam^ niji ex evident i necejjitate ^.
'vel uttUtate Ecclefa ; C^ cfuod talis Comwenda ultra fefnejlris
temper is ffatium non duraret : c^ cjuod [ecus faBum fuerit y fit
irritum ipjo jnre^ C^'c. 6. Decretal, c. Nemo. But a Benefice with-
■out Cure may be given by the Canon Law for the fubfiftance of
the Commendatory , vel ad menfam : In that fenfe the Cano-
■riifts ^y. That Commendam is quafi comedenda^ o^uia Ecclefia qua
traditur in Commendam quafi comtditur (^ devoratur , and
fuch a Benefice may properly be given in perpetuam Commen-
da*n. Summa fummar. //f. Comroenda , art. i, d^ x. And
by the Rule of the Canon Law , he that comes in per Com-
mendam , is not Fralatus , fed Procurator tavtum, O* cH nifi
Cujlfts , feu /IdminiBratcr , (df jus in Ecclefia non habit. 6.
Decretal, c. Nemo, d^ Conflit. Othobon. de Commendis^ fo. 6).
And therewith agrees aj H. 8. 15. where it is laid , That the
Cardinal of Tork had the Abbey of St. Jlbans in Commen-
dam , and yet was not the Abbot, hi this Cafe of a Commen-
dam in Davis Rep. the Original or invention of a Commendam
is'alcribed to Pope Leo 4. An. Dcm. 848. aut eo circiter^ asap-
pdai^s lih.Decretal. cauf. 23. q. l. where it is faid,Uw^^ Leo^ficn-
hity Qui plures Ecclefias rstinet, unam (juidefn Titulatam, alteram
*verofub Commendatione tenere debet : For by the Ancient Canons
and Councils a man could have but one Benefice, and yet it is by
experience found convenient, that fbmetimes, t;;2S. in cafe of Ne-
cejfity oxXJtility of the Church, a man may have the Charge and
Fruits of more Benefices than one ; therefore was that Diflinflion
ipented and allowed, .that although a man fhall have but one Be-
nefice
240 Of Commendams,
nefice in Titulo, yet he may have other Benefices in Comwenda,
'viz>. That another Benefice may be commended and committd to
. his Cuftody and Cure, until it be provided with an able Incumbent.
But afterwards, there being great Abules found in the granting of
thefe Commenctams by the Ordinaries ( for omniHm rerunt quarum
.efi ufus, ptefi ejj'e ahufus, 'virtute [olurn except a , ra}'s AriHctle)
another Canon was made in the Council of Lions, Anno Dom.
1^74.' for reformation thereof, as appe^ivslih. 6. Decretal. deEleB.
d^ EleB. fotej}. c. Nemo. Nemo deinceps Parocbialem Ecclef. alicni
non Confiituto in legitima at ate vel Sacerdotio Commendnre fra-
fumat\ nee fall, nijiunam, & evldenti NeceJJitate 'vel Uttlitate Ec-
cleji a [undent e. Hujufmodi autem Commendamrite fa^am declara-
mus ultra Semefire tempcris fpatium non durare, &c. But the Glofs
there faith, Th^tifia Confritutio von comprehendit Romanum Ponti-
ficem, ideo Romanus Pcntifex potefi Perpetuo Commendare. So that
the Pope 5 notwithftanding that Canon» had power to give Be-
nefices in perpetuam Ccmmendam. And indeed after the faid
Council ot Liom , as the Pope had rcferved to hitiifelf the fble
power of giving Benefices in perpetuam Ccmmendam , fo he
reduced that power into adi , and ufed and pra6ti(ed the fame
in all Realms of Chriflendom : Specially the Popes that were re-
fident at Avignon in France in the times ©f King E.i.E. 1.
E. 2. E. '^. were very liberable, not only in granting thefe Pro-
'vifions (contrary to our Statutes made in the times of King H. 1,
fb" Ed. g. ) but in giving all forts of Ecclefiaftical Benefices in
Ccmmendam perpetuam. And as at firft it was done for the fup-
port of the Dignity of Cardinals , as Pope Clemet 6. profelTed
in his Epiftle to Ed. ^. HiH. Vl'^aljingham , fo. 150. h. yet
afterwards thefe Favours were purchafed by other Ecclefiaftical
perfbns of all degrees , in all Nations , fpecially in England and
Ireland. And whereas the Canon Law fays , That a man hath
a Canonical Title by vinue of a Ccmmendam, that muft be
under ftood de Commenda Itr^itua, and not de Commenda Tem-
forali ; for the Commenda Temporalis is but a kind of Sequc-
llration , and may be granted by every Ordinary pro tempore Se-
me firi ; and therefore fuch a Commendatory non efi Pralatus,n€C
Mar it us Ecclejia, nee facit Frucius [uos,fedefi Adminifirator tan-
tum, c^ Cufios Ecclejia. And iuch a Ccmmenda nonefitttulus, nee
facit titulum, fedefi cjuoddam depofitum, until the Church be provi-
ded with a fufficient Incumbent ; and therefore fuch a Commenda
is commonly granted when the Patron doth not Prefent an able
perfon, or when the Church is Litigious. But the Ccmmenda
Perpetua, which continues during the Life of the Commendatory,
cannot be granted by any inferiour Ordinary, but only by the Pope
m
Of Commendams. a^i
____^ I • ......... — — — — — _»_______^
in fuch Countries where he hath Jurifciidiion, or by the King or
his Delegates in this Realm, or fiich whofe power therein is derived
from him or confirmed by him. And this Commenda efi titulus Ca-
nvnicuj; nam militat eadetn ratio in f erf etuis Commendis,i}ua in
aliis Titulis. Lib. 6^ de Ele^, c. Nemo. And fb it hath been often
adjudged in Rota, as Gomez, affirms ;'» Keg. de Trien. ?oJp:Jf, where
he argues this point Fro cb" Con at large, and where he faith, That
the Faculty of a perpetual Commenda-in is awflijjima difpofitioy d^
habet ubertatem •verborum, viz. Licentiam d^ Facultatem Fruttui
otnnes percipiendi, d^ in proprios nfus Convert endi, d^c. Qua verba
important Collat'mietn d^' Tttulumy d^ non Simplex Depojitum.
'*m
CHAP.
240
CHAP. XXII.
OfLapfe.
I. VFhat a Iji^fcis J the gradations, and Original thereof .
2.. The difference between the Canon and Common Law, as te
the time of Lapfe ; and when the Ssx month jhall begin.
5. Th^ King is Patron Far amount of all the Churches in Eng-
land.
4. In what Cafes the Patron is to take notice of the Avoidance at
his perils or not ; and how the Six months ate to be computed
by the days.
5". A Laple is not an Inter ejt<, but a Truft or Adminiftration^and
may not be transferred or granted over.
6 . How or from what time the Six months Jl^all be computed, b$-
fore the Lapfe incur.
7. Whether a Bijlwp may Collate by Lapfe after Six months, up-
on fatter of the Clerks jewing his Letters of Order s-t or his
Letters Miffive or Tefiimonial ?
8. In what cafe Tempus occurrit Regi i« point of L/x^Cc.
9. In what cafes the King having Title of Lapfe may lofe his
Prefentment.
L
Apfus, or Lapfe, Is a flip or departure of a Right of Pre-
senting to a void Benefice , from the Original Patron
nexlediing to Prcfcnt ( within Six months next after
the Avoidance) to the Ordinary. Whence it is commonly faidj
That that Benefice is in Lapfe or Lapfed, whcreunto he that ought
(0) An. 1 3. E- to Prefent, hath omitted or flipped his opportunity {a). This
Lapfe may happen and be, the Patron being ignorant of the Avoid-
ance, as well as if he were acquainted therewith or privy thereto,
except only upon the Refignation of the former Incumbent^ or the
Deprivation upon any caufe comprehended in the Statute of i ^
Eliz,. c. 12. In which cafes the Blfliop ought to give notice thereof
unto the Patron. In this matter of Lapfe there are Three gradations,
ab Inferiore ad Superiorem , after the negle6l of the true Ori-
** ginal Patron, upon whofe default (l) the Bifhop of the Diocefs,
within whofe precincls the vacant Benefice lies, fliall Collate, unit fs
the King be Patron, {x) If the Bifhop pref^nts not within the
next
Of Lapfe. 24 j
next Six months, then the Metropolitan (hall Present: And (-^l/)
If he Prefent not within the time by Law Jimited,then the King Hiall Dr. & Scud.
Prefent, for that he is Patron paramount of all the Benefices with- i ly. Co.j.u'r.4
in his Realmsjand alfobecaufe the King and his Progenitors, Kings ' 7- & per r.
o[ England, have had Authority time out of mind to determine ^^•"^^^^''^'
the Right of Patronages in this Realm in their own Courts, whence ^^''''^'
lies no Appeal to any Foreign pretended Power. The Rofell Sum-
mifi indeed makes more Gradations in this matter, as from the Ta-
iron to the Chapter^ from the Chapter to the Bijhop, from the 5;-
flop to the Metropolitan^ from the Metropolitan to the Matriarchy
and if none fuch, then lo the Tops. Sed hoc nihil ad nos, part of
whofe happincfs is an Index Expurgatcrius of the lad recited Pre-
mises. And although the Law is That the Ordinary (hall Pre-
fent, in cafe the Patron doth not within Six months ; yet the Law
withal is, That if the Patron Prefent before the Ordinary put in
his Clerk, the Patron of right fhall enjoy his Prefentation {b). (b) Dr 5c Stud,
And if the Ordinary furcefs his time limited , he lofes his power cap-jc^.
as to that Prefentation , fpecially if it be devolv'd to the King.
And when the Prefentation is in the Metropolitan, he (hall put m
the Clerk hirafelf, and not the Ordinary; and fb there is no default
in the Ordinary, though he Prefent not the Clerk of the Patron,
if his time be pafl", in which cafe there is no remedy for the Patron
againft the Ordinary (c). This matter of Lapfe is of very ancient
praaice, for Mich. T, E.l. B. Rot. 1 05-. Staff'. The Bifhop of Co- !f;^'' ^ ^"'•
'ventry^nd Lichfield pleaded aCollation by Lapfe Author it ate Con-
cilii againfl the Prior of Landa to the Church o^ Patptgham. And
6 E. I. Rot. Paten, membra 25-. in a Quare non admifit by the Ab-
bot of St. Mary E b or urn ^gaind the B'lihop of Norwich, the Bifhop
made a Title by Lapfe^ 'viz.. That he Collated Author late Concilti
fof Lapfum femefire, &c. And there afterwards in the Judgment it
is faid. Quia tempus femefire Authoritate Concilti non inciptt 'verjus
Patronum mfi a tempore fcienti<e mortis, &c. (^what Council is
here meant or intended; For P. 9 £. i. ^. Rot. 5 1. it appears that
Lapfe -wzs given per Concilium Lugdunenfe pofl tempus feme fire :
The like alfb in a Writ in the time of E.l. cited by Sir'£^. Co. 6.
in Catesbys Cafe, 6x (^); yet in Bra^on the Lapfus tempons is de (j) j^^u ^-^^
Cmfiitutione Lateranenfi {e). And yt Britton, fo. ^^5-. fpeaks of verb. Prefmk
the TempusSemefre or the Six months according to the Council of Hr-O. p. 354,.
Lions-, But Mr. Selden in his Book of Tithes, 390. fiys,That the^'-'^B"^'^- 1'^-
Manufcript of Breton hath Lc.teran for Lions, and in /J. gSS.'^" ^°' ^^''
holds. That this Lapfe was received in the Law of this Realm out
of the general Council of Lateran, held in the year 25 H. i. as
the Learned Serjant i^o// obfcrves in his Abridgment on this word
of Lapfe, where he alfb cites Hovenden,fo. 3x6. aflcrting, That
U u
among
2 44 ' 0/ Lapfe.
among the Canons of the Council of Lateran held under j^lex'
ander- ;. An. 1 1 1 8. in the time of King Hen. i. there is a Canon
in thefe words or to this efte6t, nj'iz^. Cum 'vero Vrabendas Eceie-
Jiasfeu ejua:Ubet Officia in alifjua Ecclefia 'vacare continent, 'vel /i
ettam modo 'vacant, non dm maneam in fufpcnfo, fed infra Sex
menfes ferfonis, qua digne adminiHrare 'valent, conferantur : fi
mtem Epifcofus, ubi adeumfpecl-averit, cenferre difltdtt^pr Cap-
tulum Ordmetur. And before the (aid Council the Patron was not
limited to any time, but might Prefent at his pleafijre without any
, / J ScM. de Lapfe (f). Touching other Prtfidcnts of great Antiquity relating to
Deamts, 387. j^is Subjed of Lapfe, the Reader is here referred to that Learned
^c Braa. lib. 4. Serjeant jRo//f, in the forclted place of his Abridgment. And al-
^"+'- though according to the Gradations aforefaid, the Lapfe devolves
from the Patron to the Bilhop, from the Bifliop to the Archbifliop,
from the Archbifhop to the King ; yet if after Lapfe incur to the
Metropolitan, and before Collation by him made the Patron Pre-
lent, he may Prefent to the Ordinary of the Diocefs, without Pre-
fenting to the Metropolitan. Contra H.^i.El.B.R.per Eopham(g)',
{g) Roll.^ Abr. ^^^ thereby he feems to redeem his negled. But yet if Lapfe de-
Ut! n'*^ ""* vo've to the King, and then the Inferiour Ordinary Collate by the
Lapfe, and his Clerk be Inflituted and Induced, it feems this
doth not make a Plenarty againfl the King to put him to his Qjiare
Iwpedit, hut he may notwithllanding Pre^nt and oufl the Clerk of
the Ordinary ; for when Lapfe incurs to the King, it cannot be
taken away by the Ordinary : And then when the Ordinary Col^
lates without good Title, it makes not any Plenarty againfl hint
who hath the right as the King hath to Prefent ; for a Lapfe incur-
ring to the King is not like that which incurs to the Metropoli-
tan (h). But if a Patron Prefent, and his Clerk be Inflituted, and
p; Kol. Ibid, j-gfj,^:^ Eighteen montlis without Induction, in that cafe there doth.
jr. Q.. nil. 21. ^^^ ^^^ Lapfe incur to the King; for the King hath not any Lapfe
, , but where the Ordinary might have had it bctore (/}. But if a
20 s!^ ' '^^" EiOiop dies, whereby the Temp»raltles are in the Kings hands, if
during that time the Six months pafs, whereby a Lapfe happens,
the King ihali have it, and not the Guardian of the Spiritualties
u)Br£a. 1. 5. (^^y ivior doth an Admittance of Rclignation by Fraud, take
a>i404.Sea.ie.2Y^^y ^i,e {^jnggXitle; for m Combers Cafe againil: the Bifhop of
Ctcefhr, where thelffueina Quarelmpedip w^s, if ^. 7^. by covin
between him and C. and R. did Reiign into the hands of the idAA
Billiop, if the King hath Title of Lapfe, and a Refignation be
made bv fraud, and" one Admitted, this fhall not take away the
: ... Ripgs Title; for if the Kings Title appear upon Record,, then (hall
go oura VvMt for the King, but otherwife it is upon matter of E-
v.idenae, the King doth lolchis Prcfentation as well by refignation
♦ as.
OfLapfe, 24^
as by death,where he hath Title to Present by Laple,and doth not,
except the Refignation be by Fraud (/}. And in the Cafe of die f/)Trin. (f.Jac-
Queen and the Archbilhopof Tork and Bucks, it was Refblfed by '^°'- "^^^•
the Jujtices, That a Collation, although double or treble, can- ^"^^'^.^JJ^
not be an Ufurpatlon againft the King to put him out of an Ad- B,^vvnl. Rep.
vow (on (m). par. . . Aoii ons
(2.) The Camnhzw allows Two months more to an Ecclefiafti- f/^ ^^ ^■^"i'.
cal, than to a Lay-Patron, ere theLapfe fliall be incurr'd, the for- ^^''^ ^^'^'^- ^'^'
mer having by that Law fix months toPrefent, the latter but Four, p ' ' '
Summ. Angel, tit. Jus Vfltronat. §, 1 6. So the Law of Scotland:
Tarf. Counf. far. i.e. 1. We need not Incjuireinto the Realon of
that difterence or diiproportion;let it fiiffice the Laity, That it was
the Canonijh pleafureto have it (b, fore reafbns beft knov/n to their
own intereftjthe Common Law impartially levels them both to one
and the fame equal fl-andard of Six months. By the Common Law
of England, as well Clerks as Laics have Six months to Prelent be-
fore the Lapfe incur : Dr. d^ Stu. 116. b. Per la. Com. Ley dc
Scoce: Laid Patroni quadrimefire, Ecclejiajlici -vera Sex menjtum
fapium habent fibi concejjmn ad Pr^jentandum perfonan idonsam
Ecclejia'uacanti. Skene. Regiam MajeHatem, lo.b. But Jac.6.pL
I. cap. y.fl. J. cap. lor.pl. 11. cap. i 19, i5'8. ConceditVatrono
Laico faptium Sex wenjium, infra quod Praftntare debet. The QucP
ftionisnot (b much,when the Term (hall end and determine,as when
it fhall commence, and from what time the Six months (hall be com-
puted. The Anfwer falls under a double confideration, or is diver-
(ified according to the divers manners ot Avoidances ; for if by
Death, Creation,©r Ceflion the Church be void,then the Six months
fhall be computed from the Death, Creation, orCeffion ofthelalt
Incumbent, whereof the Patron is to take Notice at his peril: But if
the Avoidance be by Refignation or Deprivation,then the Six months
fliall begin from the time of Notice thereof given by the Blfliop to
the Patron, who is not obliged to take knowledge thereof from
any other, than by fignification from the Bifhop (n). But in cafe the c«) Dr. & Sis.
Avoidance were caufed by an Union (for fb it might be) then the cap. 31.
Six months ftiould be computed from the time of the Agreement up-
on that Union \ for in that eafe the Patron was not ignorant of,but
privy to the Avoidance ; for there could be no Union made, but
the Patron muft have the Knowledge thereof; and then it was to
be appointed who ftiould Preftnt after 'the Union, as whether one (0) d,-. & 5.-.
or both, either jointly or by turns one after another, as the Agree- ibid.
ment was upon the Union (0),
U u 1 (5.) TIk
2/^6 Of La-pfe,
(^J The Continuance of a VoidanceoFa Church by thefcveral
Lapies of Patron, Bifliop, and Archblfhop, derives the Title of
Prefentation at law to the King as Patron paramount of all the
Churches in Etigland; and wherever the Original Patron by Law
ought to take notice of a Voidance at his Peril, there and in fuch
cafe by a Non-Prefentation within Six months from the time of
iuch Voidance the Lapfe will ever incur : And generally by the Ad-
miflion , Inflitution and Induftion to a Second Benefice , Prima
Ecclejia vacat de perfona of the Incumbent, &" vacanscontinuat till
., new Induction (f). But when an Archblfhop, Bidiop or other
Car C. B Rot. C^rdinary hath given a Benefice of right dcvolute unto him by Lipfe
441. The King o[ time, and after the King Prefcnreth, and taketh his Suit againft
and the Bifhop the Patron, who poffibly will fuffer that the King fliall recover
Q^Caraerbury without A6lion tried, in deceipt of the Ordinary or the poffelTor
znAPrjfts of the faid Benefice; in fuch and all other like ca(es, where the
1. par 258 Kings Right Is not tried , the Archblfhop, Bifhop, Ordinary, or
Pofl'efTor, fhall be received to counterplead the Title taken for the
King, and to have his Anfwer, and to fhew and defend his Right
upon the matter, although that he claim nothing in the Patronage
( \ \ Fd ^^^'' ^^ ^^^^ ^^^ Ordinary may Counterplead the Kings Title for
% a.^'^!' ' ^ Benefice fallen to him by Lapfe. Alio when the King doth make
Collation or Prefentment to a Benefice in anothers RIght,the Title
whereupon he groundeth hImfelF, may be well examined, that It be
true; which if before Judgment It be by good Information found
to be otherwifc, the CoUarlon or Prefentment thereof made may
be Repealed, whereupon the true Patron or Pofl'effor mave have as
many Writs out of Chancery as fhall be needful. There are fbme
(r) Statutes fthe King not being bound by Lapfe of Time, for
(rjSt. 2 5". Ed. jjullum Temfus cccurrlt Regi) which are good remedies and re-
st *^i Tr. i. I J^^^^ ^*^^ ^^^ Ordinary that hath Collated by Lapfe, as alfo for the
St. 4H. 5. 2,1. Clerk that is Collated j for othcrwife a common perfbn might by
Pra61:ice have turned out a lawful Collatee ; to which purpofe the
Lord Hobart dothinflance In a Cafe ; A Common perfbn,no true
Patron, Prefents wichin Six months, and the true Patron himfelf
Prefents not in time, whereupon the Ordinary Collates by the
Lapfe, againfl whom the Pretender brings a ^^r^ Jwpedu,hecaufe
his Clerk was refufed, wherein he mufl needs prevail, if his Title be
good; and it muft be taken for good, becaufe neither Ordinary nor
Incumbent could deny it ; for de non apparentibus^ d^ de non exiften-
tibus eadem efi ratio ; which Inconvenience Is remedied by the faid
Stat, of a5' E. 3. c.j. Note, that Lapfe doth not incurrro the Or-
dinary by reafbnof his not examining the Clerk within 6 months.
Trin. 3 Jac.B-R. inter T aimer and Smith. Refblved^^r Cur.
Of Lapfe. 247
(4 J If a Plea be depending between Two parties, and it be not
dilcufl'ed and determined within Six months, the Bifhop may Pre-
(ent by Lapfe, and he that hath the Right to Prefcnt, fhall accord-
ing to the Statute recover his Dammages (j). But it is exprejfly ^^.^ .y^^^ ^j
provided by the Statute of I 3 EliZ,.Ji. That no Title to Collate or ^gp. 5. Term.
Prefent by a Lapfe fhall accrue upon any Deprivation ipfofaclct^hut Law, verb.
after Six months after Notice of fuch Deprivation given by the ^^^e ^^^i>-
Ordinary to the Patron (t). But if the Church become void by ^^^}^^f' ^'^'
Death, Creation, or Ceflion of the iall Incumbent, the Patron '^^ qo/h //^l\\
at his peril to take Notice of ftich Avoidances within the next Six
months thereof (u). But if it become void by Deprivation or Re-
ijgnation, the Clerk is not obliged to tender his Prefentatlon to the (a^ 2-2 H- ^^■
Bifhop, nor the Patron obliged to Prefent his Clerk, but within Six '^9- b.
months next after Norice legally given him by the Ordinary j"*^^^^'^ *•
of the Avoidance by fuch Deprivation orRefignatlon(A'); which j^qiJ 2.354.
Six months are to be calculated or computed by 181. days,andnot &c.
by i8 days to the Month {)). Nor is there any Addition of time iy) Yd, loo.
over and above the 6 months allowed the Patron to Prefent from ^ ^^- (^-^i-^-
the Vacancy a Second Clerk, in cafe the former were legally refufed ^ ' ' .
by the Bifhop (zS). Yet the Ordinary may not take advantage of [^ g^ ,^ '^ ^\
the Lapfe in cafe In the Patron Prefents his Clerk, before the other 21. a.
hath Collated (^) j though it be othcrwife ulth the C<7»^»//i ; Dyer. 227. p.7.
hind. c. Si aliejuo evincente, d^c. verb. Injuria, But if the Bifliop ^^^',^1^" ^'
Collate, and the Patron Prefent before Indu6liori, In that cafe it |' ^'^ ^ ^^
feems he comes too late (h). And at the Common Law Sir Simon Hutton, 24.
Deg^e m h.k Parf on s Counfellor makes it a doubtful Queftlon, If (^) Dyer 270.
the Church Lapfe to the King, and the Patron Prefents before the p« 56.
King take advantage of the Lapfe, whether this ihall avoid the "'"-"^J'- ^77«
Kings title by Lapfe ? This (fays he) i? a Queftion by Vyer (c), f^'/w^b, 152,
though Hobart feems to be clear in It, that the King fhall not have huc. 24.
the benefit of the Lapfe {d) ; but adds that divers Authorities are (e) Qo. Eliz..
againfl them (e). And in the cafe aforcfaid, wherein Notice of i^5- tuo. Jac.
Avoidance ought to be given to the Patron before the L.apfe can ^' ' ^'^
incurr, the Patron is not obliged to take Notice thereof from any j^^.j ^'^l<iX.
perfbn other than the Bifhop himfelf, or other Ordinary (f)\ which 2;. £.3. 8.^0.
alfb mufl be given to the Patron perfbnally, If he live in the fame Co. 7. 28.
County; and if in another County, then Publication thereof In the D'- ^ ^'^'^"^•
Pari fh- Church, and affixed on the Church-Door, will ferve turn, pajf ccunfcV'
If fijch Notice doth exprefs In certain (as It ought to do) the caufe pa,-. 1. cup 2.
of the Deprivation, &c. {g): As upon Deprivation of an Incum- (f) Dr.& Stud.
bent for not reading the 59 Articles of Religion, the Ordinary Is ubi fupra.
to give the Patron notice thereof, which notice oughtto be certain jj^i"" ^j'^, "^^
and particular {h). Before Laffe can Incurr againfta Patron,notIce p .^"'^g '.J '^°
{h) 18 Eliz.. Dyer 3 4<. Triii. 41. El. B. R, BAer and Brc7it\ Cafe. Co. par. 3. zee. 679.
of
48 Of Lapfe.
of his Clerks being rcfufed by the Ordinary for Infufficiency, muft
be given to the perfbn of the Patron, if he may be found,and it is
not in that Carefufficlent to fix an Intimation thereof on the Door
of that Church to which he was prefentcd. D.i6.ELii'j.j.b.Ad.
judged.
(5.) It is faid, That a Lapfe is not an Intereft natural!}', as is
the Patronage, but ameer Trufl in Law. And if the Six months
be incurred, yet the Patrons Clerk fhall be received, if he be Pre-
0) 13.E. 4. 3- fented before the Church be Filled by the Lapfe (1). Obferve 7 E.
Brook Pie- ^^^^ ^^ ^ ^ ^^^ j^. ^^^^^ ^^ ^.j^^^. ^^^^^ ^.j^.^^ ^.j^^ Patron fhould Pre-
a/e! 3.11. ^^"t againfl: the Kings Lapfe, for he hath danimage but for half a
II H. 4. 80. year. And Hoh. Chief Juftice fays. That a Lapfe is an a6l and
office of Truft repoled by Law, in the Ordinary, Metropolitati,and
laftly in the King; the end of which Truft is to provide the
Church of a Re6tor, in default of the Patron; and yet as for him,
and to his behoof And therefore as he cannot transfer his Truft to
another, (b cannot he divert the thing wherewith he is entrufted to
any other purpole. Nor can a Lapfe be granted over, as a Grant
of the next Lapfe of iuch a Church, neither before it fall, nor af-
ter. If the Lapfe incur, and then the Ordinary die, the King fhall
Prefent,andnotthe Executors of the Ordinary ; For it is rather an
Adminiftration than an Intereft ; and the King cannot have a
(k) Mich, 10. Ljjpf^ \y^^l where the Ordinary might have had it before (k). If
lac.Rot. 2642. \ r r» -n / • l- c- ^u ' t r-
Colt and Gloi ^" Intant-Patron rrelent not within biX months, lae Laple incurs.
rjer veif. the The Law is the fame as againft a Feme-Covert, that hath right to
Eidiop of Co- Prtfent. ^5 E. 3. ^«. bj^fedit^G.
nientry and ((^.j \^ the firft Paragraph of this Chapter it is faid , That
^'' Wr ' Tewfus Semeftre author iate Cmcilii non incipit verfus Patronos
nij? a tempore Scientia mortis perfona,th2.t is, of the laft Incumbent
(p) 6 E. T.Rot fp). And fb Adjudged upon a Writ in the time of E. a.(f), and
Par. mcmbr. f^[^ ^^ ^g p^j. l_egem d^ Conjuetudinem Kegni ha^refius ufitatas. As
^^' , if the Incumbent die beyond Sea, the Six months are not computed
Catcsby ^z. from the time of his death, but from the time of the Patrons know-
ledge thereof; and io it was AdjuJged in a ^luare non adm'tfit be-
tween the Abbot of St. Mary Ebcrum nudtliQ Bifhop oiNorivich^
{r) Di£l.6.E.i. as aforefaid (H. For the Six months are not reckoned from the
death of the Laft Incumbent, bur from the time the Patron might
(according to a rcafonable Computation, having regard to the
diftance ot the place where he was at the time of the Incumbents
deatli, if he were within the Realm at that time) have come to the
A<!'^d * O. ' knowledge thereof; for he ought afterwards to take notice thereof
Eleanors cxie. -^t his peril, and not beforejfor that he was in fbme other County ,
contra Co. 6., than that wherein the Church is, and wherein the Incumbent died
Cato'^,', 6%. h. fA And if the Ordinary refute a Clerk for that he isCriwinousy
in
Of Lapfe.
in rhar ca/e the Patron Hiall not have Six months to Prefent after
Notice thereof given him, but of the Avoidance (t). The Law (t) 14 H.7. i ,.
is the fame in ca/e of Refufiil hy rea/on o^ Illiterature, (u) : But ^'«'''^- 1 8. H.7.
if ti^.e Church be void by Refignation or Deprivation , the Six ^^^^'' ^°' ^•
months Ihail be computed from the time of notice thereof given f^^^'
to the Patron, and not from the time of the Avoidance {x) : Yet eL 227/7.^^
if the Ordinary refufe a Clerk becaufe he is Crimincm , he is to Curiam.
give notice thereof to the Patron, other wife the Lapfe doti; not ^•^"■^ ' H.7, j.b,
incur {j). So likewi/e, if he be refuied for Common II fury. Si- f; '^' '^- EI.
mony. Adultery, or other Notorious Crime, Notice thereof ought pj/^^^^^, ^,.
to be given to the Patron, otherwife the Lapfe doth not incur (2:,). 5 E. 4. 3. b. '
A Lay Patron ought to have Notice ere the Laffe fliall Incur, in (7) 38. E. 3.' 2..
cafe his Clerk be reflifed for lUtterature : otherwife as to a Spiritual ^^^* ^ ^ ^' 7-
Patron, becaufe the Law prefumes, he might well know of his iS^^^'.^°*'*•
infuf3^ciency before he prefented him (a). And if the Bifhop who ir°'i),'/^''
took a Refignation dies, the Lapfe doth not incur to his SuccelFor (;») 18 H. 7..
without notice to the Patron (^). Kell. 45>, b.
(yd In a Q^tare Impedit the Defendant pleaded, That he de- C^^ ^^''^•
manded of y. S. the Prefentee of the Plaintiff to fee his Letters of
Orders, and he would not fliew them, and alfb demand'ed of him
his Letters Midive or Teftlmonial tcftifying his ability ; and be-
caufe he had not his Letters of Orders, nor Letters Miifive , nor
made any proof of them to the Bifhop; he defircd leave of the
Bifhop to bring them, who gave him a week ; and he went away
and came not again, and the Six months pafled , and the Bifhop
Collated by Lapfe : It was Adjudged in this Cafe, That thefe were
no Caufes to flay the Admittance of the Clerk, for the Clerk is not
bound (underftand it only at Common Laiv) to fhcw his Letters of
Orders and Letters Miflive to the Bifhop, but the Bifhop muft try
him upon Examination {f). (^) j-ym. 33,.
(8.) A Parfbn of the Church of 5*. of the value of Ten pound, Eliz.. B.R.
took a Second Benefice without a Difpenfation, and was Inllituced l^'^'mer. and
and Inducted, and continued fb for twelve years: The Patron pre- ^^^ l^j'^op ot
fented j^^.^S. who was InlHtuted and Inducted, and fb continued di- q,^^^ '^'^
vers years, and died. The Queen prefented the Defendant C rat'wne Cro. par. i..
Lapfus m the time of A. who was Inff-ituted and Inducted. B. tlic
Patron brought a Quare Impedit againft the Ordinary and C It v/as
held by the Juflices, That the Writ did well lie ; and that tcmpus
cccurrit Regince in this Cafe, and that lafl Clerk fliould be removed, jvjj^jj 27. &
And it was held by the Juftices, That upon a Recovery in 1 Q^a. r'>.. fj;?.. c: 12.
Impedit.^ any Incumbent that comes in pndtnte Lite fhouldbe re- ^^-^irly an 1
moved. Cmmain
CafL".
{'9.) In
250 Of Lapfe ^
(9.) In the Cafe between Cumber and the Bifhop of Chichejier^
it was Reiblved (ij If Title of L««^/« accrues to the King, and tlie
Patron Prefents, yet the King may Prefent at any time as long as
the Prelentee is Parfon ; but it he dies, or Refigns before the King
prefents, he hath loft his prefentment fx). If the King hath Title
by Z.<?:/)/e,becaure a Parfon hath taken a Second Benefice, if the Par-
M Hill ^°" diesjor Refigns his Firft Benefice,and the Patron preients, whofe
Jac. B. R. prefentee Refigns upon Covin and dies, the King hath loft that pre-
Cro. par. 2. fentment (e).
I
CHAP.
251
CHAP. XXIIL
Of CollatiQVy Prefentation^ and Nomination.
I . what Collation is^ and how it dijfers from Prefentation.
I. Collation gains not the Patronage from the Crown.
3. The Ordinarjs Colhtion hy Laffe is only intbe Patrons
Right.
4. What Prefentation is, and hoiv in cafe of Co-heir s<t orfoynt-
tenants^ or Ten^.nt in Common.
5. Whether the Grantee of the next Trefentation, not Vrefenting
at the FirH Avoidance^ flmll lofe the benefit of his
Grant ?
6. The Right o/* Prefentation is not an Ecclefafiical,but Tempo-
ral Inheritance, and cogniz,ahle at the Common haw.
7. The pwer of the Ordinary in cafe of Coparceners^ Joynte-
nants, or Tenants in Common, as to Prefentation.
8. In what Cafe the BijJjc^ hath EleEiion , whofe Clerk he will
Admit.
(^. Whether a Prefentation is re'vocahle before Jn/litution ?
in. Whether the Son may Jucceed his Father in theChurchland
who may 'vary from, or repeal his Pre^ntarion.
I I . What Nomination is, and the cjualif cation thereof.
1 1. In what Caje the Prefentation is the Nomination, or both as
one in Law.
i'^' In what cafe the 'i<lom\nztor fiall have a Quare Impedit,^f
well as he that hath Eight of Prefentation ; And there may
he a Corrupt Nomination, as well as a Corrupt Prefenta-
tion.
14. Whether the Colhtee be Incumbent^ iftheBijljop Collate him
within the Six months f And in what Cafe the Kings Pre-
fentation within the Six months may be an Ufurpation, or
not.
1 5'. Where the Ordinary Collates-^ the Patron is to take notice of
it at his peril.
16. Who jhall Prefent in cafe the Ordinary y to whom a Lapfe is
devolved J be within the Six rHonths tranjlated to another Bt'
jlwprick.
17. A Ref sanation to a Prb^or^ without the Biffjop^s Acceptance^
makes not the Church void.
% X -18, A.
252 Of C ollation, Frefentation-,
i9). A Tanchial Church may he T^QXi2X\vt^zx^'mp jrom theOr^
dinarys Jurifditlion, and is Kefignahle to, and Vijitable by
the Vairon, not the Ordmary.
I Q. Where Tn>o are to Frefent by T^urnsj ivhat Trefentationjhall
fer'vefcr a Turtty or not.
10. By tbeCanons the Son may notfucceed the F-ather i?i the fame
Church.
'%\. To what a Prefentdtlon may be made.
12.. The Kings right of Frefentation as Snprcam Patron,
a 3. In'wbat cajethe Kings Trerogati've toTr-efent doth not tak
flace.
14.. In what Cafes it doth,
2.5". To whcm the Patronage of an Archbi^wp belongs.
16. Whither Alien Minifies s are Prefefttable to a Church in Eng-
• land.
ay. In what Cafe the Patron may Prefentde novo.
a8. Difference between the Kirig and a Cowfnon perfon in point
of Frefentation.
19,. A Collation makes no plenarty where it is torrlou?.
3 o. Prefentaticn may be per parol as well as by IV^riting.
1^1. What amounts to a Revocation of the King s Frefentation.
31. Caufts of Kefufal of the Clerk Prefented.
35. Certain Laiv-Cafes pertinent to this SubjecL
54. Whether Injiitutton granted after a Caveat entred, be void?
95'. What f jail be held a Serving of a Turn, and good Plenarty
and Incumbency, against a? atr on in Severalty.
^6. A Clerk refufed by reafen of his not being able tofpeak the
Welfh Language.
37. What is the bc^ Legal Policy upon every Frefentation hf
Ufurpation.
3.8. One of Two Grantees of an Advowfon, to whom the other
hath releajed, may Frefent alone, and have a Q].!a. Imp. in his
own Name.
^9. A Clerk refufed for Infufficiency by the BiJI}op,may not after-
wards^ be Accepted.
(l.) ^""^Ollation in its proper fignification, is the be (lowing of
I a Benefice by a Bifhop th^it hath it in his own proper
^^.^rightjgifr, or Patronagejdiftlnguiili'dfrom Infiitution
only in this,That/«/?/r»/io»into a Benefice Is at the inftance,n]ot!on
or Frefentation of the Patron, or fome other having proiempore the
Patrons Right, performed by the Bifhop, Ext.dc.lnfit.d^de Conceff.
Praben.d^c. But Collation is, not only when the perfbn is Admitred
to the Church or Benefice by thcBiftiopor other perlbn Eccleliafti-
cal.
a7ni Nomination, 2^5
cai; bur alfb when the Bifhop or ih\t other Ecclefiaillcal perfon is
th ' ri. Iitful Patron thereof j or when the BIOiop or Ordinary hath
right ro prcfcnt for Laplcof the Patron; and y^tCovriimtzCollation
is anJ hah bc^en ufcdfor Prefentation. (a) And fo Prefentationj No- (a) St. ij-. Ed,
winatun and Collation^ are commonly taken for one and the fjime 3. 6.
ihing m fubftance, though at times dilHnguiihcd: {b) And whereas C^) H ^-9'^
it hath been a Queflion, If one hath the Nomination, and another '^'^■°y ^^"*Sh
the Vrejentisticv, which of them fhall be fliid to be the very Patron;
if hath always been taken to be the better opinion, that he who hatli
theiVt:wi«^/id;w, is Patron of the Church. And where an Abbot had
x\\Q Prejentatio77j'\nAzx\oi\\(iri\\Q Nomination, & the Abbey furrend-
red to the King, he that hath the Ncminaticn (hall now haveall;for
(he King Ihallnot Prefent for him, that bc'ing a thing undccent for
the King, (c) But as to Collation and Prefsntation, they were in(^c) i Car. B
ilibflance one and the fame thing, as aforefaid; (J) But to fpeak pro- R.Di'.keiaon
perly, Collation is where the Bilhop himfelf doth freely give a B.ne- ^"^ Green.
fice, which is of his own Gift by right of Patronage or Lapie. {e)^S^" ^^^^*
This v/ord [Ccllaticnl feems alfb to be frequently ufed when the (- j'^^j. 7 r^ *
King Prtf nrs; and hence it is that tlxrc is a Writ called CJlatione 64.
fatta uni po/} morttmalteruis, d^c.^ dire6led to the Jufiices ot theO) 15 Ed. ^.6.
Common Pleas, Commanding them to dire6t their writ to a Bi- ^ ^^- 4-
fnop, For the Admitting one Clerk in the place of another Prefented
by the King, which Clerk ('duringthe Suit between the King and
the Biftiops Clerk j is departed this Life: For Judgment once given
for the Kings Clerk, and hedying before his Adm;{fion, the King
may btftow his Prefentation on another. (/) This Collation, Pre- if) Reg ot
fentation, and Nom in nation, are in efFe6l Synottyma, being dilHnguifh- Writs, fo. •? i.K
ed only in rerpe6l rather of Perfon?, than of Things.
(2.) Yet there may be a great dilierence betwixt Prefentation &
Collation, which gains not the Patronage from the King, as appears
in the Cafe of the Queen againlt the Bifhop of Tork, where the
Queen brought a Quare Imfedtt againft the laid Bifhop, and one
Monk, and counted upon a Prefentment made by King H.8. In the
right of his Dutchy of Lancafler, and fo conveyed the fame to the
Queen by Defcent: The Bifhop pleaded; That he and his Predccef-
fors have Collated to the fiid Church, &c. & Monk pleaded the fam.e
Plea,upon which there was a Demurrer. And it was moved by Beau-
mont Serjeant, that the Plea is not good, for a Collation cannot gain
any Patronage, & cannot be an Ufurpation againft a Common per-
fon, much lefs againll the Queen,to whom noLapfes Oiall be aiGdbeJ;
& although the Queen is ftized of this Advovv'fon in the right of lier
Dutchy, yet when the Church becomes void, the right to prefcnc
vefls in the Royal perlon of the Q^yet i/i^.the OldRegiji. ^ i.Quan-
do Rex frajentat non in jure coron^e, tunc incurri't ei Tempm.Ha?^^.
X X 2. Serj.
2 5 1 of Collation, Prefentatron,
Sa], By thcfe Collations the Queen fliall be put out of po{reffionj&
put to her Writ of Right of Advowfon, but the fame ought to
be intended, not where the Bifhop Collates as Ordinary, but where
he Collates as Patron, claiming the Patronage to himfelf, for fuch
a Collation doth amount to a Trefentation ; and here are two or
three Collations pleaded, which fliould put the Qiieen out of pop
ieffion, although fhe fliall not be bound bythefirft during the life
_of the firft Incumbent. Vid. Br. Quare Impedit, 3 i. upon the a-
bridging of the Cafe of 47 E. 3. 4. That two Prefentmcnts the
one after the other, (hall put the King out of poffeifion, and put
him to his Writ of Ri-,ht of Advowfon, which Anderfcn denied.
And it was holden by the whole Court, here is not any Trefentation
and then no pofleffion gained by the Collation : and although the
Bifhop doth Collate as Patron, and not as Ordinary, yer it is but a
Collation. And there is n great diflerence betwixt Collatio!! and Tre-
fentation', for Collation Is a giving of the Church to the Paribn,but
Prejentation is a giving or offering of the Parfbn to the Church,
(g) Pafch. 33. and that makes a Fknarty, but not a Collation (g).
Elii.C. B. (7,.) The Collation of the Ordinary for Lapfe is in Right of the
the Slifeen md patron, an.1 will fervc him for a PolTcflion in a Dan em Prefent-
t>}e 2}. op of nient, as appears by Colt and Glcvers Cafe againfl the P. of Coven-
Yorks Cafe. ' j. fK r 7i\ • • i' -j --r., 1 ^ j- 1 1
Lcon.Rep. ^U ^"'^ Lichjield where iz is laid, 1 hat thcOrdmary, or ne thatpre-
fents by Lapfe, is a kind of Attorney made by Law, to do that for
the Patron, which it is fuppofed he would do himfelf, if there were
not fbme lett, and therefore the Collation by Laple is in right of the
Patron, and for his turn, 24 E. i^.i6. Andhefhall lay it as his pof-
(h) Mich. 10. icflion for an Aflize of Darrein Prefentment, 5 H 7.^45. (h). \t
Jac. Ror. 2642. feems alfb by Gawdy% Cafe againft the Archbifhopof Canterbury
Colta.nd Glov. ^^d others, That although a Bifhop Collates wrongfully, yet this.
Vov\nALW "^^^^ ^^^^ ^ Plenarty as (hall bar the Lapfe of the Metropolitan
Hob. Rep, '^""^ ^^^ King, (i) And this Collation by Lapfe is an a6l and ofhce
0} Hill. 17, of Truft repofed by Law in the Ordinary, Metropolitan and King,
Jac. rot. 1 840. the Title of Lapfe being rather an AdminiHrattoni\\2L\\ an Intrefi^
Sf! Archb"^ as in Colt's Cafe aforefai'd ; which Title of Collating by Lapfe may
ViCant&'aU ^^ pJ'evented by bringing a Qua Jmf edit zgzm^ the Bifiiop : Alfo
Hob. Rep. * 'where and in what Cafes the bringing of that Writ againli the Bi-
fhop fhall or fhall not prevent fuch Collation^ appears in the. Cafe
/'t^ »«• t. o( Brickhead againfl the Archblfhop of Tork, as Reported by Sir
Jac. Brtckhad ^^^- H^^'^rt Chief Juftice (k).
verf.Arcib.of (4') Prejentation is the Nomination of a Clerk to the Oi'dinary
York. to be Admitted and Inftltuted by him to a Benefice void, and the
Mpb. Rep, • ^nie being in Writing, is nothing but a Letter Miflive to the Bifhop
or Ordinary, to exhibit to him a Clerk to have the Benefice void-
ed? the Formal force hereof refteth in thefe words, w^:.. Pr^fento
vobis..
and Nomination, 25c
'vohis Clericum meum. Thus Trefentation properjy io called, is the
acl of a Patron oftering his Clerk to the Bifliop, to be inflituted in
a Benefice of his Gift. (/) It is where a man hath a Right to give (/j The Fort»
any Benefice Spiritual, and prefenrs the perfon to the Bifhop, to whereof vld.
whom he gives it, and makes aninftrument in writing to theBiflhop ^^8- Orig-
in his favour ; and in cafe there be divers Coheirs, and they notac-^°* 3 2-^-a.
cording in the Prefcntation, that which is made by theeldeftof the
Coheirs, fhall be hrft Admitted; but if it be by Joyntenants , or Te-
nants in Common, and they accord not within <5 months, the Bifhop
fhall prefent by Lipfe. {m) By the Statute of i 3 Eliz^cap. I z. (m) Terms' cf
a Pixfcntarion of an Infant to a Benefice is void. And although a Law, verb.
Trefefitatien^ being but the Commendation of a fit perfon by the P^^^entmenr.
Patron to the Bifhop or Ordinary to be Admitted and Inffituted
into a Benefice,may be done either by word alone, or by a Letter or
other writing, yet the Grar.r of a next Avoidance is not good with-
out Deed, (n) But a Vrejcntation^ being no other than a Commen-^") Wich. 51.
dation of a Clerk to the Ordinary fas aforeiaid) and only a thing ^ l.^ ^^'^'
concerning an Advowfbn_, without patling any intereft of the In- theArchb!of
heritanceof the Advowfonjmay be done by word only j upon which Canterbury s
ground it was relblved by the whole Court, That the Kings Pr^-Cafe.
fenfation unto an Advowfon appendant to a Mannor parcel of his ^^^"^ '^'^'
Dutchy, under the Great Seal of Ji%/^-;i^, without the Seal of the g^ i! ^^^: ^'
Dutchy,was well made, and good : (0) Yc a,and for the fame Reafbn.„;^ ^^^ S^p,
for that a Prejentation is but nCommendationy and toucheth not the 0/ Line, Cafe, ..
Inheritance, was the Kings Trefentation to the Deanry of Nor-wtch ^'!/'* Mich,
held good, albeit in the laid Trefentation he miftook and mif^rcci- ^ ^'^^- ^' ^'
ted the Name of the Foundation of the Deanry (p). fh^KTand
the Bijhop of
Cbichefter, then vouched and affrmedfor Law. (p) Stephen Gardiner's Cafe there vouched by CooK,-
Chief jujiue. Vid. Mich.3 Czr.B.R. Stephe7is znA Potter's Czic. do, i.par. 70,7 1. ace. Vid.Trii4.-i
8 Jac. C. B. rot. i 8 i i. Cro. 2. par. 247. the fame Cafe.
(5.) J. feized of an Advowfon in Fee, Grants Vrafentaticmm
to B. ejuandijcuncfue (^ cjuomodocunc^tte Ecclefia vacare contigerity
fro umca 'vicetantum ; in the Grant there was further thisClaufe,
viz,. Injuper 'volnit & conceffit^ That the Grant fhould remain in-
force tjuoufejue Clericus habilts & idomus fhall by his Prefentation .
be Admitted, Inftituted,. and Indudled. Afterwads A. grants away
the Advowfon in Fee unto. 5. The Church becomes void. 6'. Pre-
fents. The Church becomes void again.S. Prefents G. upon a difturb-
ance of M. the Prcfentee of B. the Firff Grantee, a Quare Imp. is
brought. The Queltion was, Whether B. the Firfl Grantee, not
Prefenting upon the Firft Avoidanee, had loft the beneiiEof his
Grant.'* In this Cafe it was Adjudged by the whole Court, That
although A' the Grantor grants Donatiomm c^* TrtffenttttionejfJ^ ,
2^6 0] Collation^ Prefentation,
auandocuna^ue Ecclejla vacare contigcrit^frv uHica vice tamuifi^ y
B. oiighc to have taken the firft Prtlcnt.ition th-U hapiied,and hath
not Elt6lion to take any turn other thunihe Firft, whenihc Church
firft becomes void; and by his ncgls61: in not Pitiencing then, ha i
l<.>ft jjie benefit of his Grant ; and the liablequent words in the
Grant are but only rn Expl-matio-ui^ ihcvords precedtnt, ard ic-
f?) Tr. 8 Jac. J^te to the next Avoidance ( ef).
fnd^PolT^'^ ('6.) The Right of rrefer.tatt n\sA Temporal thin_fr,ard a Tern-
Cafe. Bulftr I poi'^i Inheritance, and thtretore belongcth to the Kings Temporal
par. z6, z-'. Laws to determine, as alio to make Laws who (hall Prcfent after
Hughes Abr. Six months as well as before; fo as the Title of Examination of -^-
ver. Advow- hilit)' or Non-abiUty be not thereby taken from the Ordinary. The
ion, Sed. 6. j^^^^ jg ^]^q f^^-.^ touching Avoidances, for it lliall be judged by the
Kings Temporal Law?, when and where the Church may belaid
to be void or not; the Cognizance wherrof doth not belong to the
Kings Ecclefiaftxal Laws ; and therefore where a Parfon is made a
Biftiop, or accepts another Benefice without Licenfe, or Refrmeth,
or be Deprived; In thelecales the Common Law would hold the
Church void, albeit there were any Ecclehiftical Law to the con-
(r) Dr. &Stu, frary : (r) And it is fufficient for the Ordinary's dilcharge, if the
cap. 36, Prefcnice be able, by whomfoever he be Preitnted; which Autho-
rity IS acknowledged on all fides-to have been ever inherent in the
Ecclefiaftical Jurifdiftion : But as to the Right of Trefentation it
ielf, to determine who ought to Prefent, and Who not, and at what
time, and when the Church ftiall be Judged to become void, and
when not, all thele appertain to the Kings Temporal Laws. And i«
cafe it happen that the King Prefent not, where of Right he may,
in fuch cafe the Ordinary may fro ten? fore depute a fit perfbn to ferve
the Cure; as in like cafe he may, wherethere is a default or neglect
WDr. & Stu. in other Patrons to Prefent, and do not {s).
ibid. (7.) If the Patrons be Joynt- tenants, or Tenants in Common of
the Patronage, and they vary or differ in their Prelentations, the
Ordinary is not in that Cafe bound to Admit either of their Clerks,
nor him that is Prefented by the Major part; And if the Six months
expire ere they agree, the Ordinary may Prefent by the Lapfe;but:
■within the Six months he may not; for if fb, and the Patrons ac-
cord, they may bring a Quare Imfedit againft him as a Difturber,
and removehis Clerk. But in cafe the Patrons have the Patronage
by Defcentas Coparceners, then is ihe Ordinary obliged to Admit
theCltrk of.the Eldeft Si lier, who hath the precedency by Law in
the Prefent at 1071) if (he fo pleafe; after which and at the next Avoid-
ance the next Sifter fhall Prefent,and fb in order by turn one Sifter
after another till all the Sifters or theirs Heirs have Prefented, and
•then the Eldcft Sifter fliall Prefent again, and this is called a Pre-
■ ^ ' " fenting
and Norjiination* 257
fenring by 7i<r«, which holdeth always between Coparceners ofaa
Adv'owfon, unlcfs they agree to Prefent together, or in fbme other
manner by way of Compolltion, which if io, then the Agreement
ought to hold good. Yet here note, That if after the death of the
Common Anccllor, the Church happen to be void, the Eldcft Sift-
er togciher with another of the Sifters, prefents, and the other Sifters
Severally and each in her own Name, or jointly and altogether ; In
this cafe the Ordinary is not obliged to receive any of their Clerks,
bur may fuffer rheChurchto run into the Lapfe ; for there is no ob-
ligation on the Ordinary to admit the Clerk of the Eldeft Sifter,
but where ftitr prc/cnts in her owName only. And in luch cafe of
\ariance ordiilcrtnce among the Patrons touching K\\Q.VrelentattDny
ti^e Church is not properly (aid Litigktis-y obliging the Ordinary at
his peril to dire6f a Writ to enquire cle Jute PatronatuSi which
Writ h'eth only where twoormore Prelent under pretence of Seve-
ral Titi('s:Buc in this cafe all the Patrons prefent under one and the
fame Title; for which reafon the Ordinary may, if hepleafe, fufl^cr
it to pafs into the L7ipk(t)^ CO Dr. & Stv.
cap. 30.
fS.) Suppofe a Patron prcfents toaChurch void, and before the
Admi(fion of the Clerk the Patron dies; after his Executors (before
fuch AdmifHon) Prefent anotlier Clerk, Q. Whether the Archdeacon
ought to receive the Clerk of the Teftator, or of the Executors ?
The Opinion of the whole Court was. That the Bifliop fhould
have Election therein. (« ' And in cafe an Agreement be made by ^, ^^.
way ot Compofitlon betvv ccn divers claiming one Advowfon, and eiiz. c. B.
Enrolled, or by Fine, rl-.at one fhall lucceflively after another Pre- Sfnallwood
fent in fuch an order certain'^ and after one hath prefcnted, he to vcrl' Bi.Tiop.
whom at the next Avoidance the Second Vrefentation doth b(.'\ong,'^^^"^¥'^^^
js difturbed by any that was party to the Cvd Fine, or by fome other ^'^"' ^^'
in his ftead : In fuch ca£" iris providcd/That fiich fodiilurbed (hall
not be put to the Ojre Iwpedit^huz their refbrt to the Roll or Fine
fhall be fufficient, w^here if the Concord or Agreement be found, the
Shcrift fhall be commanded, That he \:lve knowledge to the
Difturber, that he fliew by fach a time certain (as hfreen days, or
three weeks; if he can alledgeany thing, wherefore tiie party that is
difturbed, ought not to prefent, and if he appear not, or appearing (^^] jj.^^^ ^^^
alledge nothing fufficient in Bar, he fhall recover ;jis Vrejcntnticn Ed. i.cap, 5.
with Dam;io-es (;;:'.
■(9O ^"
258 Of Ccllationt Prefentation,
(9.) In the Cafe of E-vans and Af cough it was the Opinion o'
Doderidge ', That a Bifliop hath no more in a Church by EleBton
than a Parfon hath by Prefentation. And that if a man Prefent to
a Church, yet any time before Inftiturion he may revoke it, and
Prefent another; and if in that ca(e the Bifhop will Iiillitute the
{)) Cafe£wMT Firft, a Quare Imfedit will lie a2:ainft him. {y) But if the Patron
and Afcougk Prefent one, and he be Admitted by the Ordinary, he cannot in that
Latch. Rep. ^^f^ y.^^y fj-Qj^-, ^jg Pre/entation : as was alfb held by Doderidge in
Latch. Rep. out of all quefllon at the Common Law, that before Admifllon by
io> ij-j. the Ordinary the Lay-Patron may revoke his Prefentation, becaufe
a Frefentation is no other than a Commendation, which may be by
word only : And if the Cafe be, that one hath the Nomination^a.-
nother the Prefentation^ the Prefentation and Ncminaticn are all
one. It was then laid by Whitlock, That in the Canon Law it is
allowed to a Lay-man to vary, but not to a Spiritual man; but at
the Common Law it is all one. Doderidge and yones leemed to
give the Reafbn thereof, when they faiJ, That it may be intended
that a Lay-man cannot at firii fb v/ell judge or is able to diicern of
the fufficiency of the party prefenred, but a Spiritual-man may.
Quare y If after Admlffion of the Patrotis Prefentee he doth after-
wards again prefent another to the Ordinary, and the Ordinary
Admit, Inlfitute, and Indu6l the laft Prefentee, what remedy for
the firft .'' So if ^Spiritual perfon change his Prefentation by the
confentof ^he Ordinary, what remedy for the Firft after Induction
» Cafe. ibid, o^fhe Second (rf) .-^
( I o.) To the fame purpofe with the premifles is that which is
Reported in Stoks's Cafe againft Sykes ; the Cafe is this, viz. A
Lay -Patron , having the next Avoidance of a Church after the
See this Cafe in <^cath of one Stoke\ Father ot the Plaintiff, then Incumbent of the
Noy's Rep. faid Church, after the Fathers death prefented Stoke\ Son, whom
the BJlhop rehifcd, for that by the Canon Law FtUus Patri non
fotefi in Ecckjia fticcedere. Whereupon the Patron prefented Sykes;
And nuw Stokes obtains a Dlfpen^tion Non oh(I'a7ite the Canon.
Notwlthfianding the Ordinary doth Inftitute Sykes, & caufeth him
to be Indu6led. Whereupon Stokes doth fiie Sykes and the Ordi-
nary in the Delegates', and nov/ Banks prays a Prohibition, and by
all the Juftices it was -{^ranted. And Jones faid. That he had known
it to. be thrice fo granted in the like cafe, (jviz.) in the time of
Juftice Gawdy, as alio in the time of Juftice Coke in the Common
Pieas, where both Parfbns claimed by one Patron ; But Doderidge
there held, That the Canon before- mentioned doth not hold in this
f . Church ; and fb, fiiid Doderidge, was the Opinion of a Learned Ci-
;' 'viUan : So by the. Canon Law a man cannot have that Woman in
^ Marriage,
and Nomination. 250
Marriage, whom he had in Avowry before ; ytt that Canon doth
not hold in our Church. Doderidge faid, that the O'vilianshoXd^
That a Lay-Patron cannot revoke his Prefentation^ but he may
cHWulando -variare, and fo the Ordinary hath Ele6tion to hiftitufe
which of them he will ; but that a Sptrirual Patron cannot i/<?r)f at
all. But he faid, that at the Common Law it is out of queftion.
That a Patron before Inftitution may revoke liis Vrefentation: And
if a Patron prefent one, and the Ordinary admit him, but will
not give him Inftltution, Duplex Querela lies a^ainll the Ordinary
to enforce him to do his duty : But if both Parfbns claim by one
Patron,and the one fues a Duplex Querela, a Prohibition lies not
before Inftitution. But Jems denied it, and faid, That it had been
Refolved to thecontrary. Doderidge faid, That in that cafe the In-
du6tion ^-^s pendente Lite (h). And inCahert's Cafe again ft X/>fy&/» (^^ stokes icrt
it was faid, that the King may revoke his Prefent a ticn, and by the S)l:et Lach. *
fame reafbn may Prefent another, before his Prefentee islnftituted ;Rcp.
for proof whereof It was faid. That a Common perfbn may re-
cal his Vrefentation before the Inftitution, &c. for which was vouch-
ed the Book of 31 £. i. tit. Quare Jmpedit, 155. the Abbot of
Leicefters Cafe, although that Dyer citing it, i x.Eliz^.fo 191. con-
ceives the Book contrary, but it feems to be in reafon that the Law
is clear, That a Lay-Patron may change, although that a Spiritual
Patron cannot, and the reafbn is (as aforefaid) becaufe a Layperfon
did not know his Sufficiency perhaps at the firftjbut a Spiritual per-
fbn by intendment may inform himfelf thereof well enough, and
therefore was vouched 18 H.j. and I H 8. Kellv^afs Reports ,
which plainly proves that diverfity; And by the 19 Eltz,. fo. ^60.
in Colepiit*i Cafe it is faid. That when the King hath prei'enced, a
Repeal by him ought not to be admitted after Inftitution : And by
Dj. 5 39. in Tatton*s Cafe, the King may Repeal hi? Vrefentation by
a new Vrefentation, without mention made of the former, except
that the Second Vrefentation be obtained by Fraud. Alfb the King
may prefent by Parol j as was faid by Sir Edward Coke\r\\.\\Q Lord
Windfors Cafe, and as appears by 1 7 Eliz. Dyer, as was vouched
by Bromley Baron in the aforefaid cafe of Cal'vert ag'ainft Kit chin ,
where It was faid by Altham Baron, That by the Kings death his
Vrefentation determines (undcrftand it, before Inftitution ; ) and fo
it is faid In 34 E. 3. 8. tit. Quare Impedit, 1 i. That a prcicntment
made by a Bifbop becomes null and void by his death. And in
58 £. 3. 3. if a Bifhop prefent and die before, &c. the King (hall
prefent anew (c). (c) Kitchix
(11.) Nomination, is a power, that by virtue of a Manner or vef. calvirt,.
otherwife, a man hath to Nominate or Appoint a Clerk to a Patron ^^"'^ ^^P'
of a Benefice, by him to be prefented to the Ordinary for the fame;
y y where
2 6o Of Collation, Prefentation,
^vhere Note, ( i) That it may be in right of a Mannor, or other-
wife (l). That the Clerk Nominated ought to be a perfbn fir,
able, and worthy (j). That it may be to a Parfonage, Vicarage,
or other Spiritual promotion (4). That it ought to be to another
than the Ordinary, which other fliall prefent him to the Ordinary
(.d) Terms of ^Jj^ ^^^^ jf qhc hath a Right to have the Nomination of a Clerk
Lawvei .^ to a Benefice, and another Difturbs him, he cannot have a ^^re
Imfedit ipfum Nominare ad Ecclejiam, but the Writfhallbe Quod
fermittat ipfum Trafentare: And the Count (hall be, That of Right
he ought to Name a Clerk to fiich an one who ought to Prefent hira
to the Bifhop, and that a Stranger doth difturb him of his Nomina-
tion-, and in cafe he doth recover, the Judgment fhall be Quod E^
(e) 21 H.6.\y.pffiop^^ admittat Clericum c;d Nominationem fuam (e).
by Fulthorp. ( 1 1.) If y4.B. doth Grant unto J.S. That he fhall Name a Clerk
to him to the Church of C. v/hen it fliall become void, and that
A. B. fhall prefcnt unto the Biflwp the Clerk which J. S. fhall
Ncmivate to himj in that cafe the Vrefentation is in J. S. and he
fhall have a Quare Impedit, for all the Profit is in him : and the
Grant of the Nomination and PreJentationlszW one. Butit A. B.
doth Grant unto y.S. Tha.t he fhall A^o?»;«^f f to him Two ClerJcs,
whereof A. B. fhall preft nt one j in that cafe the Vrefentation is not
given to y.S. the Grantee, becaufe it is in theEle6iion of A. B,
which of the Two fhall have the Benefice : And this was the Opi-
Cf) T4. E. 4. 2. nion of the Julfices in Smith and Claytons Cafe ( f).
Smith and (i g.) ff A, hath the Nomination to an Advowfon, and B. the
CU)Un\0^£c. Brefentation,\^ A. Nominates C for his Clerk, and i^. that fhould
prefcnt C doth Pre lent D. for the Clerk; A. that hath the A"^c;w>z^-
tion, fhall have a Quare Impcdit, and the Writ fliall be Quod per-
mittat mm Fr^efentare, albeit y^.had but the Nomination: otherwife
he fhould be without remedy; for in fuch cafes where the party can
otherwife have no Right done him, the Law will admit fiichWrit,.
(e) Vkz. N. B. albeit the words therein be improper (g). And if he who had but
3 3- b. a Nomination, corruptly agree to make a Pref€ntation,ot Nomina-
tion, tliis Nor/itnation fhall be forfeited to the King, Vv'irhin the Sta-
tute of 3 I Eliz,. cap.6. as was faid in Qal'veris C^ilcagSihiii: Kitchin
(^_) Difl. Cafe, and Tarkinfon (b); and as it is fiid in PIoji'den,m Hareznd BicL-
L.i?zf Rep. /e/'s Cafe, He who hath the Nomination, hath the ei|-e6l of the
(i) Tnn.7. ]:Lc..ji^^yQ^fQj^^ Yet (as in the faid Cafe oi Cal'vert) this dive.'-firy feems
m the Exclic- ^^ be good, That if A., hath the Vrefentation, and B. the Nomina-
Cal'v. a^^ainfl: ^^^'^ ^^ ^ Benefice, and the Prefcntor upon a Currupt agreement,
Kiuhin and make a Vrefcfitation unknown to the Nominator^hsre the Nominator
P.arkwfix. fhall not be prejudiced within the Statute of 3 1 Eliz,. cap. 6. (i^\ '
Line's Rop.
(14.). la
and Nomination. 2 6 1
(14 J In Greene Caft vouched by AthovJeStr'jQ.^inun the Cafe
of thing againft the Archbifhop oi Canterbury and one Tijowas
Pruff jupon a Quar£ Impedit brought by the King, it is faid. That
if the Bifhop Collate before the Six months incur, the CoUaree js In-
cumbent, but the Patron may prefent at any time after, for that
fills the Church, but not againft the Patron, and hinders that no
Lapfe may incur to another. In Sir Henery Ga7i>dy\ Cafe fc^r the
Church oilV. the Church there became void, and within ff)urteen
daies after the King prcfented one to it Jure Prerogativa\ the Pre-
fentee continues pofTelfion above thirty years, and tlien the Mannor
and the Advowloncame toSir H^«r^ GrtjW/j the Church is void,
and the King prefents again, and was dillurbed by Sir Henry. For
that the King brought a Quare Impedit : and Adjudged, That the
Pre/c»?<7no;^of the King within the Six months was not an Ufurpa- ''■;
tlon: But if he had prefented in his own right, there fhould have
been an Ufurpation. When a Title by Lapfe is in the King, if
any prefent, the King may remove him during his life by Quare
Impedit; all this appears by Baskervils Cafej but if the Incumbent
die, the term of the King is gone, and if he Refign not, the King
may prefent during the Life of the Incumbent : And that was a
grand inconvcniency, that after lb long polTeflion in that manner,
the Incumbent may be removed by the King, &c. Vid. the Cafe of
th? King againft the Archbifhop of Canterburyand Thomas Vrufiy
Clerk. Tr;«. 4. C<?r. Hetleys Keportt.
(15'.) If an Incumbent Refign, and the Ufurper prefent within
Six months, and is in for Six months, no Notice being given to the
Patron of the Refignation; yet that fliall bind him, and he fliallbe
put tohisRightof Advowfbn. Otherwilc if the King had Co/-
latedy becaiife the Induction is notorious to the Ordinary, and the
Patron ought to take notice of it at his peril, to prevent the Ufur-
pation of an Eflranger (k). {k) Servin a-
(^16.) There was a Qyeltion upon a Demurer in Law, If a Lapfc g^'"'^ tjie Pi- '
devolves to the Ordinary ,& within thofe Six months the Ordinary ^°P "^ Livcoh
is Tranflated to another Bifhoprick ; Whether the King or his ^ ^^'
Metropolitan fhall Prefent to that Lapfe, in default that the Patron
does not prefent.'* ISljy Attorney, that the Guardian of the Spiritu-
alties fhall prefent whofoevcr he be. Vid. Dyer jS.Pl. 103. (/). ,^
(17.; In a Quare Impedit , It was Refolved and Agreed by all ^^^^"^ ^'''""'^
upon Evidence at Barr, That a Refignation to aProcJ:or, does not ^(,,'g ^gp^
make the Church void, until it be Accepted by the Bifhop, and ac- {?»} srmch %-] ]
knowledg'd before him. So that a Trefentation in the mean time gainil Foavcu
was void (w> N./sRcp. ,
Y y ^ (18.) A
2^2 Of Collation, Prefentation,
(l8.) A Parochial Church may be a Donati've, and exempt fror
the Ordinaries Jurif(iI6iIon, and the Incumbent may refign to the?
Patron and not to the Ordinary ; nor may the Ordinary Vilit, but
the Patron by Commiflioners to be appointed by him. Co. Lit.i^/^
Cited Hill. I Jac. B. R.Rot.6oi. betv^een FairchiU and Gater in
Tre/pafs for the Parochial Rectory Dovati'ue ofSr. Bitrienm Corn-^
/..- tT-ii , 5^^^ ; ^ refolved in that Cafe (n). But in fuch cafe of a Paro^
jac. B. R. rot. chial Donati'vej a meer Lay- man is not capable thereor, but aCierk
6 o\. Fair child inlAoiy Orders is ; for although he comes in by way of a Lay-
aad Gaur. donation, and not by Admiflion and Inftitution, yet his Fun<^ion Is
?of''' ^''' Spiritual. As was Refolved in the faid Cafe of St. Burien {o). So
(p) Da. 1, 4^. ^^"^^ ^ Donati've may pafs by the Gift of a Lay-Patron, vithoutln-
b. (Sc Roll. -ftitution or Indu6lion {f).
Abr. verb.
Prelent. Lit. B. (i 9.) Iii' a Quars Jmpedit the Cafe was this ; A. fcized of Two
partsof an Advowfbn, and .S. of the Third part: ^. prefented one
who died, afterwards he prefented again C. who is deprived i Mar
becaufe he is a Favourer of the Religion of £. (3. B. prefented^ D.
who after is deprived, and C. rt'ftored. The Church void by the
death of C.B. prelents, and A. brings a ^^re Impedit. It was Ad-
judged that it did not lie .• And it was Agreed, That if Two have
Title to prelent by turns j and one prefents one who is Admitted
--' • ■*- - and Inftituted, and afterwards deprived for Crime; yet he fhallnot
prefent again, but it (hall ferve for his Turnj becaufe the Church
was full, till a Sentence of Deprivation came: but when the Ad-
midion and Inftitution aremeerly void, the fame fiiall not ferve for
a Turn : But in this cafe, although the Clerk of £.was Incumbent
for a time to all purpofcs, yet when the fecond Sentence came, C^,
was Incumbent again by force of the firft Prefentmcnt, and theiv
f^) Trin. 41. when he was dead, B. oughtto prefent at his Turn ((j). In anorhbr
Elii. B. R. Quarelmfeditlht Cafe was this, 'viz. The Bifiiop o^ Lincoln, Pa-.
r^idhrof ^''°" ^^^ Ordinary Collated to a Benefice in 8 E. The Incumbent
Cunterb Cafe. ^^"^^ ^^'^^^^^ ^^"^^^^ without Qualification, by which the firlt
€ro; par. i. ^^s void : The SucccfTor Bifhop 1 8 EUz>. prefented one £;but non
confiat^ whether by Avoidance, Death, or Refignation : E. being in,
the Bifhop was tranflated or removed to Wtnchefler : the Bifhop-
that then wa?,certificd that E. did not pay his Tenths, upon which'
the Church was void, and the Bifhop Collated J'S. to the Church.
The Queflion wa?, Whether the Qiieen might now avoid thelrtr
cumbenr, to have her Prefentmenr, which accrued to her upon the-
avoidance of the iirftlncumbent, who took a fecond Benefice with-
out Qualification. The Ju ft ices at the firft doubted it, but afcer-
wardfit was Adjudged for the Queen againft the Bilhop. T^fch.
1,0 ElfX,, The Quee-a and the Btjhop of Lincoln? Cafe- More's Rep^
(io.>It
atid Nomination, 26 ^
(xo.) It is out of the Canon Law, one of Cardinal Of^o's Ca'
nons, That Ne fuccedat in Ecclejia Filius Patri^ the Son may not
fucceed the Father in the fame Churehj or in cafe flich happen to
be fo Inftituted or Admitted, they are forthwith to be dcpritred
thereof by the faid Confiitntion. Conjt, Otho. JVir fuccedat in Ec-
clefia Filius Patri; This is indeed according to the Canen Law,
though with us not pra(Aicable,by the fame Law alfb the Son is pro-
hibited to fucceed the Father immediately in the lame Prebendary,
albeit to have another he is not prohibited i but if it be where the
number of Prebends be not definite and certain, there he is not at all
by that Law prohibited, Extr. defi.Pvcef. c. dilecfus j yea, by that
Law the Son may not be a Vicar in that Church, where the Father
was Reitor Jafl-, Extr. il\ ad Extir^andas, d^c. Alichael. But this
might be omitted ; for the Qiieflion, An Filius fojjlt Benejiciare in^
Ecclejia Faterna? is with us grown tooobfblete to admit a Nega-
tive Solution. .
(21.) A Vrefentation may be to a Deaitry (rj, to an Hofpital^s)-, (r) \ 7 e. ^4o.-
and to a Chappel (t). And if a Stranger Prelent to a Donative , Adjudg'd
.'Adjud^,
was Donati've. But if he that is the true Patron of a Parochial Re6l- C»J Co. Lit.
cry Donative^ (hall prefentto the fame, and his Clerk be thereupon H4-
Admitted and Inllituted, that now makes it to become Prefenta-
five, and it fhall never afterwards become Donative (x"). y} ^°' Lite.
fia.) If a Church become void, to which a Bifhop hath right to ^ ^ '
prefent in rerpe6t of his Temporalties, in this cale, if the Bifhop
happen to die before he hath prefented to that Church void, the
King fhall have the Prefentation^ andnottheBilhops Executors f/). (y) so E. ?.;i5,
Alfo if during the vacancy of the Archbifhoprick of Tork and the 5 H. 6. 16. b. .
Temporalties being in the Kings hands, the Denary becomes void, ^^"[^"^'
the King fhall prefent to that Deanry, albeit there be a Compofiri- ^,,f.'/J' "
on between the Archbifhop and the Chapter, that the Chapter fhall
chufehim; for dejure the Patronage thereof belongs to the Arch-
bifhop, yet the Compohtion cannot bind the King, who comes in
paramount as Supream Patron (z). r^ ^ .
(i^-) Ahhough it be admitted , that where a Common perfbn ^2. Adj iriire.
Incumbent is created a Bifhop, there the King fhall have the Pre-
fentation of the Church for that Turn by his Prerogative; yet it
feems, if the King grant to an Incumbent, before he is Created Bi-
fhop, a Difpenfation retinere the Church with his Biflioprick, and
afterward is created Bifhop, and dies Incumbent^ it feems the King .'^-
fhall not prefent to the Church by his Prerogative, for that the
Church k not void by his being made a Bifhop, in which cafe
th.e
2 ^4 ^f Collet ion^ Prefen tat ion,
the Prerogative gives the Prelentatlon to the King, but by the death
of the Incumbent, in which cale the Prerogative doth not take
place. Co. Ent. 474. Heles Cafe there pleaded, that in fuch cafe
the Church is void by death, and admitted, that it belongs to the "
6i)Rol. Abr. Patron toPrefent upon his death («).
ver. prefenm. (24.) If a Church, whereof a Bifhop in right of his Bifhoprick
D. nu, 2. J3 j-j-^g Patron, becomes void afcer the death of the Bifhop and be-
^ fore the Seizure of theTemporalties, yet the King fliall have the
^ej^^ T ^' TrefcKtaticn {h). And if a Church belonging to the Patronage of
per SchiYd'^ ' ^ BIfhop become void, and the Bifhop present and did before Infti-
(c) Liber Par- tution, the King (hall have that Prefentation by his Prerogative {c).
hamentorum. So if a Bifhop die after Inftitution of the Clerk, and before Indu-
9. 1 E. I. the 6lion, the King fhall have the Prcfentation by his Prerogative (^d).
^wr^'^"''} AI^ J^ ^^P^^ incur to the Ordinary, and before the Six months
aduidi d in P^^ ^^^ Ordinary is Tranflatcd or dies, it (eems the King Ihall have
Pari. 24 E.^. the Prcfentation, znd not the Ordinary j or his Executors, or the
3o.adjudgU Guardian of the Spiritualties. P. /\.o.ELB. Duhitatur.Hob.Rep.zoS.
Rol. uhi jiipr. Jn (-^(q of death. But if a Bifliop having right to prefent to a Pre-
r^) IH ^* ^^"<^» ^"^ prefent his Clerk, who is Inftituted and Indu6ledin the
by^Jltbe juili'. Morning, and after noon the fame day the Bilhop dies, whereby the
ces. Temporakies come into the Kings hands, yet the King in that c^
F. N. B. 3 4. K. may not have the Trefentation (e).
36.K.38 E.3.4. (25-.) The Patronage of the Deanry of an Archbifhoprick doth
(e) ' e'" ^° ' of Common right belong to the Archbifhop, and he fhall Prefent
(/) 17 E. 3.' to the Avoidance (/). But by Compofition it may be Eledlive by
4c. b. the Chapter, and yet the Patronage remain in the Archbifhop (^g).
(g) Ibid. And where a Parfc^n ought to prefent to a Vicarage, if the Vicar-
age become void during the vacancy of the Parfbnage, the Patron
(h) 19 E. 2. of the Parfonage fhall prefep.t (-6).
g^na. hf^p. 178, (26. j An Jlien.who is a Minitler may be prefented to a Church,
and Anciently it was ufual for Aliens to have Spiritual promotions
(i) R I Ab- ^"i'-i'^> ^nd Priors Aliens liad great pofleffions in England, and were
ver. Prefcntm. P^^rfbns Appropriate (t)\ yet by the Statutes of i 5 K.x.d^. i H.j.
lit. L. 4. French-men are difabled from having Benefices in England, and
French men Denlzon'd: Sed Qji. whether they continue of force
ik) Rol. ibid, at this day {k). And if a mecr Lay-man, or a man altogether illi-
terate, be prefented, Inftitutedj and Indu6Ved, it is not in Conflru-
(Sbion of the Common Law a meer Nullity, but fuch aic Parfbns^e
facto; but if a Woman be prefented, Infliruted, and Iudu6ted, it is
(■/) Ibid, ac : a meer Nullity at that Law, becaufe her Incapacity is apparent {}).
Hob. zo^.
(17.) If a man prefent his Clerk to tSe Bishop, anj he die be
fore he is received^ he may prefent another; and although a man
hath prelentcd his Clerk to the Bifhop, yet h; may prefent another
at
a?id Nomination, 26^^
at any time before the Bifliop ftiall have received fuch his Clerk
(x8.) If 7. 5. Prefenf, and his Clerk be Admitted and In^i- ^ Mk'^o "^'
tilted ; before Indu6Hon J-. D. cannot Prefent his Clerk, for the' ^ ' ^ '
Church was full before as to a Common perfbn, for by the Infti-
tution he had Curam animarum: But where a Common perfbn pre-
fents, and his Clerk be Admitted and Inftituted, yet before Indu-
61ion the King (if he hath Right) may Prefent, and his Clerk
fhall be Inftituted , for the Church is not full as againfl: the King
before Indu6licn {n). But if the King hath not right to the Church („) vid. Rol.
in tiiat cafe the Church is full by the Admiflion and hiflitution of ibid. dit.Q^
a Common perfbn's Clerk without rndu61:ion, as agaiuftthe King,
io as that he may not in that cafe Prefent (o). (") Ibid. m. 3 ,
(19.) If a Biiliop Collate without any good Title of Lapfe or .^
otherwife, and then the Patron die after the Six months elaps-'d,
and his Executor bring Quare Impedit by force of the Statute of.
4 E.3.and theRidiop and Incumbent plead Plenarty by Sixmonths,
it was Adjudged no Plea on Demurer, for that the Collation is
■not at any Plenarty, being Tortious (0). Alfb if a Bifhop Collate 0-^ ^^' 52- EL
without a good Title of Lapfe, it puts not the Patron out of pof- ^" J5; ^^.'^'
fellion ; but he may prefent afterwards, albeit the Bifliop's Clerk £,^^'(,^^^0^.3 ^f
were Inflituted and Indu<5led f^). s?i2alwood
and the Fifhop oi Coventry and Lichfield. (^yCo. 6. Great 29. b. ^Bofwell jo. Co. Lit. 344- ■
('30.) A Common ptrfbn may Prefent to a Church fer Parol ;
^nd if it be by Writing, yet it is not any Deed, but only in nature -.^. _ j.,
of a Letter to the Bifhop (r). Alfb the King may Prefent either ,^q^
by his Letters (j), or per Far ol without Writing (t). But if the (j-) 2 E. i. Rot.
King be deceived in his Title, it will be a void Prejentation («). Pntentium.
And if the King eranr a TreCentation by his Letters by the words '^"'^^^^''^ s-
\_Darffus,Concedimus\ without other words of Pre/V«?^f/o«j yet '^^ A^^^e j'ml'6a
fecms it fhall amount to a Prefentation, and be a fiifficient Warrant Aaice. Ca. Lit.
for the Bifhop to Inftitute him. Dubitatur 1 9 E.T^.Qnare hnpedit.,60. 120.
A Common perfbn by his Letter or his word may make a Prefent a- («) Co. 6.
lion to a Benefice to the Bifhop, the King may Prefent by Word, if ^'.?"f ^*,^*
the Ordinary be prefent, if the King under any Seal prefent, it is ' ^'j*' ' ' '^^
good : and M. i o 7- it was held by the wholeCourt,thata Piefent- co. 6. Gran
ment under the Great Seal, to a Church parcel o!: the Dutchy of 29. b. adja-'g.
Lanca''zer is good, and need not to be under the Dutchy-Seal (;c). f^) Dora. Rt^
Where a man accepts a Second Benefice with Cure, without a dif- Zf' • ■^•^^v'"'
penfation or qualification, the Firft Benefice is void, and the Patron j.^"' \ g j ^ *"
may Prefent;butif hedothnot prefent,theniHt is under tbe.value,no Biownl. Rep.
Lapfc fiiall incur until there is a Deprivation and Notice: But if it pa*", i. A£tion,
be above value, then the Patron muif prefent within 6 months (^}. ^^'''^ ^'''-h
{)') Hilj. zz. Sc 13 Car. z C, D. Rot, 680. Smte verf. th>den. Yau^h. Rep. anj Arguirients'.
Tiie,
266 Of Collaiiout Prefentation^
..« ^
The King feized of an Advowfon in the Right of his Dutchy of
Lancafier, Prefented to it under the Great Seal, and not under the
Seal of the Dutchy. And RefolvedjThat the Prejentationwas goodj
for the Trefentaticn is but a Fruit fallen from the Tree, and the
King may Prelent by wordj becaufc a Vrefentation is but a Com-
ifi) The King mendation of the Clerk to the Ordinary {a).
and Bifliop of A man feized of an Advowfon in Fee granted to another and his
Lincoh and Heirs, that when the Church fiiould become void, that the Grantee
Kings^ Cafe. ^nd his Heirs fhould Nominate a Clerk to the Grantor and his
Mw'sRep. pj^jj.^^ ^^^ he and his Heirs (hould prefent him to the Ordinary.
,. Kefolved^ That if he who hath the Nomination Prefent, he which
Mm'J'lS,^' ought to Prefent fnall have a Quare ImpeJit againft him, and ^
contra.
In Be'verley and CorniveWs Cafe it was Relblved, that if any Ad-
* vowfbn comes to the Queen for Forfeiture by Outlawry, and the
Tafch :oEliz. Church becomes void, and the Queen prefents, and then the Out-
More{ Rep. ' ' l^wry is reverfed for Error, yet the Queen (hall enjoy the Prcfent-
ment, becaufe it came to the Queen as a profit of the Advowfon j
but if the Church be void at the time of the Outlawry, and the
Prefentment be forfeited as a Chattel principal and diftin£t y and
then the Outlawry is reverfed, the party (hall have Reftitution of
the Prefentment.
(51.) If the King dies before his Clerks Admiflion and Inftitu-
, t\or\i\ti%z. Revocation in Law of his Prefentation {b). Or if the
% ]%c. in Scac. ^^'"g prefent one to a Benefice, and then prefent another to the fame
inter cd'vert without Revoking the former, or making any mention thereof; yet
*: Kitchhi, this alfb is a Revocation in Law of that former (c\ unlefs the Se-
fer cur. ^q^iJ were by fraud or furreptitioufly obtain'd. Likewife, if the
^i Elt \ ^'0. ^'"g^ Prefentee dies after Infticution, and before Induftion, that alio
16 El?fv. 4.' is a Revocation in Law, becaufe the King had not thecffeft of his
(d) Dukitatnr. Presentation ^zv\dib (hall prefent again (J). Or if the King Prefent,
D.I8E1. ?48. and then before Inftitution reroke the fame, but before Nctke
II Co. 9. Holt, tj-iercof to the Ordinary, the Ordinary Inftitute and Indudl him ;
irRe^Min y^^ '^^ ^^^^^ ^^^ Prefentation is well Revok'd in Law, and the No-
thejiid cafe, t'ce thereof to the Ordinary is not material as to the fubftance of
of 1 8 El. n. the Revocation, but only to difcharge him from being a Difturber.
io El. 360. 7. D, ixEl.l<)^.acljudgd.Dyer makes a ^ars th^reo^. Dubitatur D»
admirt. ^^ E/.^iS. Fid.z^E. 5. 47. & Rol. Abr. ubi.jufr. lit.U.
i/ax.) If the Patron, who FrefcntshhCl^rkyhe Excomfnunicated,
H |s R good caufe o^ Refufal of the faid Clerk ( e)\ it ic alfofaid to
0) ly H.7-7. jjgp^ j^^y jj^jj^g Books of the Common Law (f). And where there
(Aco.y. Spccnt are Three Joyntenants of the fame Advowfon, or of the next A-
j E Rol. ibid, voidance, and only one or two of them Prefent, the Bifhop is no
Difturbcr if he refufethe Clerk fb prefented ; for he is not bound to
Admit
and Nomination, 2 6j
Admit the Clerk, unlefs alhhe Joyntenants joynin the'PreJentation
(g). But where there are Three Grantees of the next Avoidance, (g) t)- '4- Ci.
and the Church become void, and Two of them Prelenr,the Third '°'^-..^'^;.
being a Cleric, the Ordinary in that cafe is to Admit hiin, for that ^'*^' ^^' '^"' ^ '
he cannot joyn in a Trcjentation of himfelf, and he may rcllnquifh
his Title, and accept the Pre.fcrntnient of the orhers (h). (.h) z-T). 1 4 L.
(12,^ A. the Defendant had been Parfon for Three rear?, and '°+- ^■^-
pleaded Plenarty generally by 6 rjionths of the Frefevtatii,n of one " '
Stjlcs, a Stranger to the Writ: and the Court held the Plea to be
naught, becaufe the Defendant fhcwed no Tit'c in Styles (2). (■. Qrn:rM!
(34.) In tlie Cafe between Phillips and Hajter Prohibiu'cn was vuf. LJfla:
granted for theChurchof 7". the Suit being in the Arches after In- Brcwnl. Rej>.
du<5lionto avoid the Inflicution, for that the Inilitution was made P^- ^- ^''^-'«'-
after a C^X'f^?/- entred, Not to grant In ftitution, (Sec. for that doth "" ^^•^"■F-
not make the inftitution void at the Common Law (/(^}. Ch-^WA
(5^.) In a Quare ImpecUt^J. and ^.ferverally Patrons of the Mc- cir. h. R.'bc-
icy of the Church of 6". in Fee to Prefent by turns ; A. Prelcnts tween Phtlr^j
his Clerk, who is Admitted and Indu(5led. The Church is void a- ^"d Hlijtir,
gain, £. PrefcntshisClcrk,whoislikewife Indu61:ed,and after is de- f^''^"^; ^'^^
prived. The Billiop Co//^/fj without giving notice of the DeprI- j^"u r^p'^ *"
vation. A. grants his Advowfbn to J. S. in Fee; the Clerk Collated
by the Bifhop died : B. Prcfentcthj and is dilturbed. Rejol-vcdy
(l) When A. had ri^ht to Prefent upon die Deprivation, as in his
Turn (altheugh im Collation of the Bifhop was not good) yec ic
was but a thing in Aclion, and when he had granted the Advow'on
over, the Grantee could not have this thing in A6lion, nor the '
Grantor could not have It, for he had deftroycd it, and Co none
could have it (l). Kefolved, although the Grant was liiiTicient to
pafs the Advowfbn in Fee, yet the Collation of the Bifhop was good
againft all, butagainft the very Patron, fbas he might have renio-
ved the Incumbent by a Quare IwpeMt; but when he doth not re-
move him, fbas he dies Incumbent; this is as a ferving of his Turn,
and a good Plenarty and Incumbency againft him (/). (/^ Hil. 40. El.
(g'S.) In a Quare Impedit the Defendant pleaded, Tliat the Di- B.R. Leak and
vine Service there was in the Welch Tongue, and the Parifhioners ^"^ Bifhop ot ^
underftood not the En^lijh-, and the FreJ em ce could not fyc^lTclJh^J^''^^^^^'^
and therefore he refufed him: It was the Opinion of all the Judicc?, '"' ? ^' • '
That it was a good caufe of Refufal of him, for lie cannot ini:ru6l
his Flock according to his duty and ch.ircrc. Bur in this Cafe it was
held. That Notice ouyht to be o-iven to the. Patron himfeif, if he .,
J . 1 . 1 ^ T ! •• 1 I ►• ..• » ' 1 ■/^-•'«K)' and the
be withm the County, it not, pubiicK intimation to dc on ^^^-^ Bjfl-op of ."^t '
Church-door. jf:Aph's cafe.
(3 7. J In a Quare Iwpedit hwughl in a Cafe between La. and Lo. Go. par, 1.
it was held, That the King cannot be a Difturber ^ but tlv. Biiliop
Z z may
26S Of Collation, Prefentation, isc.
may bea fpecial Difturber; and in that cafe it was faid, It is good
policy upon every Prefentationhy IKurpation, to bring a ^are Im-
pdit as fpeedily as may be ; and it is as good policy to name the
j^j,h Tac Bi^op J" the Writ, for then he (hall not Collate for Lapf^, if the
B. R.' Lama. Church remain void Six months; nor fliall the M-tropolitan Collate,
fier and Low's if the time come to him, for the fame Lapfe : For it was faid to be
^^^^- a Rule, That the Metropolitan (hall never Collate for Lapfe, but
Cro. par. 2. ^^^^ ^.^g immediate Ordinary might have Collated, and hath fur-
ccafed his time : and in fuch cafe the Ordinary cannot Collate, be-
cauie he is made party to the Writ.
(;8.) In the Cafe between Eimmt and the Bllhop o^Norv^ich it
Cro. par, I . ^^, Adjudged, That if the next Avoidance of a Church be granted
to A and B. and A. Releafe to B. and after the Church become void
in that cafe B. may prefent^ and upon Difturbance have a ^uare
Impedit in his own name.
(3 o.) If the Bi(hop (liall for Infufficiency refule the Clerk that is
B R the mnl' prefented to him, he may not afterwards Admit him : and therefore
of Hereford'^ ' whcfc the Patron prefented J.S. his Clerk to the Bifhop, and upon
Cafe. Notice by the Bi(hop given to the Patron of the Infufficiency of the
Gro. par. i. Clerk, the Patron prefented another Clerk, and then the Bifhop ad^
* mits the firft Clerk which was prefented within Six months : in this
cafe it was Adjudged, That the Bifhop was a Difturber; for having
once refufed him for Infufficiency, he cannot afterwards accept of
him.
CHAP.
26p
C H A P. XXIV.
Of Examinatm, Aimiffion^ Infiitution,
and Indu^io?i,
I. VFhat is here meant hy Examination, Tvhere enjoyned ^
hew , and by "wbom , and at what tiive to be ferfornt'
ed.
2. In ouhat cafe the Bijhop is held at Comnton Law a Difiurber,
in refufwgone Clerk and Admitting another.
3. the Ordinary^ as he is net obliged to Examine the Clerk at.
feme certain times ; fo he may may not refufe to examin him
during all the Six months,
4. Although the Six months be Elapfed^yet if the Patron Pre-
fent, the Church net being Full, the Bijhop ought to Admit his
Clerk.
5r. How an TJfurpation upon a Leafe for years puts the 'very Pa-
tron out of poJJ'eflion.
6. Ajdmiflion what; and under what qualifications it cno-ht to
he.
7. Vl^hat the Remedy, where the Ordinary doth refufe to Admit
the Clerk ; the Form of juch Admiflion.
8. What Inftitution is , and the Form thereof according to
the Canon Law; what required of the Clerk in order thereto,
and his K emedy in cafe the Ordmary denies him fuch Inftitution
as he may claim by Law.
9. Matterj of hifkhution properly cognizable in the Ecclefiaftical
Court St yet m certain Cafes not exclufi'velj to the Commom Law
or Temporal Jurifdioiion.
I o. Inftitlon gives the Parfon jus ad rem , net jus in re.
II. Whether Inftitution without Indu(5lion works a P knar ty"^
alfo whether it be good, being Sealed with another Seal, and
done out of the Proper Diocefs ? The difference between the
Common Law and the Canon Law as to a Caveat entred he-
fore Inftitution.
Z 2 2 (ix) Whether
2 70 Of Examhiatiov, Adm/fjion^
I a. Whether Suit may be in the Ecclcjiajlkal Court to removt
an Incumhent after Indiicllon ?
I 3. Whether the Firft-Fruks be dus upon the Inftitutlon before
Induction ?
1 4. y^ Cafe at Conimon Law tcttchitig Refignation;^«(5? whether
it way be made Conditionally ?
ly A Cafetoiichin<T the Rightful Patron sVYeftntztionjafta- the
InduBton of another by Uftrpation.
I 6. What Induftion ?/, and the Bipops Order therein.
1 7. Induclion is a TcrKporal^ ?}ot Spiritual A^ : In vjhat man-
ner it is to be executed.
i^. A Caveat entred in the Life- time of an IncwnbeTtt is
njoid.
ly. In what Cafe an Indufllon w.'zJe by a-Mhiifrer not refident
within the Archdeaconry^ may be good.
10. Inftitutlon to a Minor and Under-age is meerly void.
21. Whether after lr^l^\^St\or\i the \v\^li\^,l\on may be queflioned
in the Eccleftaflical Court.
21. Whether Incumbency be triable only at Common Law.
1^. In what Court the validity of Induction is determinable.
( I .) T| 1 Xamination Is that Trial or Probation , which the Bifli-
\A op or Ordinary makes before his Admiflion of any
J ^ perfon to holy Orders or to a Benefice, touching the
<.]ualihcacion of iuch perlons for the fame refpCiSlively. So that there
are Two certain times or feafons efpecially, wherein this Examina-
tion is required ; the one before an Adrmjfton to Holy Orders^ the
other before an AdmiJJicn to a Benefice. The termer ot thefe is ex-
prefly enjoyned by the ■:}^'^th Canon Ecclefiuftical, whereby it is rc-
cjuired, That the Bifliop, before he Aimit any perfon to Holy Or-
ders, fh.ill diligently Examine him in the prefence of thofe Khnillers
that ihall aifillhim at thelmpofition ot hands, or in cafe of any l.iw-
iul Impediment of the Riiliop, then the fiiid Examination fhall be
carefully performed by the faid Minders, provided they be of the
Bifhops Gi! bed ral Church, it conveniently it may, oiherv/ife by at
Icait Three l^jfficient Preachers of the fame DioceCs. And in cafe any
Bifhop or Suflrag-in (hal! Admit arry to Sacred Order?, v/hoisnot
Examined as is before ordained, then Iliali the A-clibilhop of the
Province, having notice thereof, and being aiJified with one Bifh.
'liifper.d tlie faid Bifhop or Suffragan from making eirher Deacons
or Priclls for the fpaceof Two years {a). So alfo when the Clerk
^EccMajiu^'l' 'S prdented by the Patron of the Advowfbn, btfsre he be Admit-
ted as. Clerk to fcrve the Cure, the Ordinary is 10 Examine him of
his Ability : For it upon his Examination he be found unable to.
fcrve
(a) Canon 3 j.
hifiitutiony and liuliSJoru 271
ferve the iame, or be Criminous, the Ordinary may refufi; to Admit
and Inftitute him into the benefice {b). By the Ancient Canons (h Co. s, ■par.
the Bifhop hath Two months time to enquire and inform hiinfejf ^^^^'sCafc.
of the fufficicncy and quah'ty of every Clerk prefenrcd to h:m, as
appears by the Canon in i jac. cap.^^. But by the faid Canon it is
Ordained; That the ftiid Two months fhall be abridged to 2.8 days
only (r). Upon fiifficient enquiry and Examinatbn the Ordinary W Rol. Abr.
may accept or rcfule the Clerk Prefented ; and regularly all fuch ^,^^' P^^fenmt.
worth ilian the h:rmcr, which only is void in fuch cafe (c). ■ (e) j ^ H. 7..
(z.) }f the Biihop doth demand of the Clerk his Letters of Or- 2-8.b. Cw.w.
dcr.>, and Letters TeRImonial of his good behaviour, and the Clerk
requires time to fhew them, as the fpace of a week or the like, be-
caufe he hath them not there with him ; and the Biihop doth there-
upon refufe him to the Church, and prefents another ; the Bifhop
m fuch cafe hath been adjudged to be a Diflurber ; for the Statute
of I 5 Eliz,. doth not compel the Clerk to fhew hh Orders, nor
Letters Ttftimonial of his good behaviour: And fb it was Ad-
judged (fy Yet by the ^ ^th Cane?) it is by way of Caution cxprefly (f) PaQh. 3 ,■.
Ordained, That no Bifhop fhall Liflitute any to a Benefice, who EJiz. c. B.
hath been Ordained by any other Bifhop, except he iirfl Ihew unto P^-^''^^^ and the
him his Letters of Orders, and bring him a fi^ifiicient Telb'mony of ? J"^^^^'"'""
his former good life and behaviour, if the Bifhop fhall require if. l^.^^^^ ., , ^ ^■'
(3.) Examination of the Clerk is to be done at a convenient
time within Six months ; for the Ordinary cannot refufe to Ex-
amine the Clerk during all the Six months, and fb fuffer a Lapfeto
incur to himfelf; for by fo doing the Patron fhould lofe his Pre-
fentation^ and the Ordinary take advantage of his own wrong. But
if the Oidinary, when the Clerk comes to be examined, Sc Jet circa
curam Paficralem, he is not then obliged to leave the bulincfs in
hand, and prefently Examine the Clerk; but he may appoint a con-
\'cnicnt time and place for tht Examining of him (g). This Exa- {g) Midi. 1 5-.
mination by the Diocefan, touching the Convcrpitic?} and Ability h^'- C.H. Ad-
offtich as were ordained to Preach the Word of God, orPrelentcd-J'^''^Sd.vid.
to a Benefice, is enjoyned by the Provincial Conliitution:-, Liriihi'. ^^' ^. '.,■ ' -
de Hareticis^ caf. 1. i^oTj.'s Cufc.
(4.) A Quare Impcdit was brought by ^. agiu'rifr the BiOiop of '
Rochefier, who pleads, that he claims nothing but as Ordinary ;
and yet pleads furtk-r. That the Clerk which the Piaint-fF prefcnt-
cd, had before con tra6ted with the PlaintirT Sjmoniacal/y , and.. ^ '
therefore becaufe he was SirKoni^.cus he rcfufed5nnd that the Church
was then void, and fo remained void; v/hcrenpoi the Plainriii- had
a.
2^2 Of Examination^ Admi/Jiorij
a Writ totheArchbifliop of Canterbury, who returned, that before
the coming of this Writ, 'viz. 4. July the Church was full of one
Dr. Granf, ex Collatiom ofthefaid Eifllop of Roc/?eij^er, who had
Collated by Lapfe, and this Return was Adjudged Infufficlent :
Firft, it is clear, That though the Six months pals, yet if the Pa-
tron prefenr, the Bifiiop ought to Admit, although it be after the
Title devolved unto the Metropolitan : And It feems alfo Reafon,
that he ought to Admit, though that the Title by Lafpe be accrued
to the King, for he claims it as Supream Ordinary. Fid. Dyer 177.
eiuare. But in this Cafe the Bifhop who is the Defendant, is bound
by the Judgment, and the Writ is, notwithlbnding the claim of
the Billiop, that he Admit the Clerk; for the Biiliop ought to ex-
ecute the Procefs of the Court. It was urged by Serjeant Henden,
that there 'm^l Canon in Lindwood , That if the Church be vacant
when the Writ comes to the Biihop, that he is bound to execute the
Writ ; but if it be Full, then he certifies the Juftices: And the Arch>
bifiiop is Sworn to the Canons, and he vouched ix ^6.45. Coke,
lib.6.49, ^»i 52 Dyer zlo.FN. 8.4.-]. Dyer ^6^.i4H.'J.zx.^4.H.
(h) Booton a- 6.41.9 E.g. Quarenon admifit. i 8 £.47. {h).
gainft theRi- (5- J In Rud\ Cafe againlt the Bifhop of Lincoln, It was among
fhop of K<?- ^jI^^j. j^jjjgg Refolved by the Court, in a Quare Inipedit,Thzt when
HmRe °"^ "^"'■P'^ "P°" ^ ^^^^^ ^°^ y^^*"^' ^^^^ ^^^^ Ufurpation gains the
^^' Fee, and puts the very Patron out of Pofleflion; and though by the
Statute of /-^f/. X. cap. <y. he in reverfion after the Leafe may have
a Quare Impedit when the Church is void, or may prefent, and if
he Present, and his Clerk be Admitted and Induced, that then he
is Remitted ; yet until it be recovered, or his Clerk be in, the U-
furpcr hath the Fee, and agalnft him lies the Writ of Right, &c.
Alfo that the Patron, which hath recovered in a Quare Ifnpedit,may
Prefenr, and that being scceptcd, an Inftiturion andlndudion cn-
(i)Rud veif. fulng thereupon. It is good (t).
the Bifhop ci" ^^^^ Mmijjion Is when the Bifiiop upon Examination of the
Hutf Rep C\txk Admits him to be able and lufficient, faying Adn7itto teha-
(k) Co. on! Lit. bilem {K). The Lord Coke in she Fourth Part of his Jnsiitutes fays,
fo. 534. a. That upon confideration had of the feveral Statutes (/) (whereof
(/) 3 R. 2. mention is there made,) If an Alien or Stranger born be prefcnted
7H. 4. 1 II. J. j.^ ^ Benefice, the Biinop ought not to Admit him, hut may lawfully
f H°4.na.' 4I. 1'^^^"^^; him (m). There are feveral things which the Statute-Law
& 4R6.'iurof this Realm doth require in him, which fiiall be Admitted to a
ap Benefice j for no perfon may be admitted- to any Benefice with
(m) Co. 4. par. q^j.^ ^ ^xcept he then be of the Age of 23 years at leafl, and a
^^ComJ"^' beacon, and ihali firll have fub^cribed the 39 Articles In the pre-
jm^U ^^.|^^^ of the Ordinary, and puhiickly read the firae in the Parifii-
Church of that Benefice, v/hich Declaration of his unfeigned Affent
there-
Cturts.
Inftitution^ and hduction* ' 273
thereunto ; and except he be Admitted to Minifter the Sacraments
withm one year next after his Indu6tion (if he were not fo Admit-
ted before) he fhall upon every fuch default be ipjo fa5fo deprived.
And none fhiill be made a Minifter, or Admitted to preach or Ad-
minifter the Sacraments under the Age of 24 years, unleft he
bring with him to tlie Bilhop a fufficlent Teftimonial, and be able
to render an account of his Faith in Latin. All which appears by
the Statute of the I'^th of Eliz,. whereby it is likewife j?rovided,-
That none fhall be Admitted to any Benehce with Cure, of or a-
bove the yearly value of Thirty pounds In the Kings Books, unlefs
he fhall then be a Bachelor of Divinity, or a Preacher lawfully al-
lowed by (bme Bifhop within this Realm, or by onQ of the Uni-
verfities of Oxford or Camhridge ; and that all Admlilions to Be-
nefices, Inftitutions, Indu6lions, Tolerations, Difpenfations, Quali-
fication?, and Licenfes whatfbever, made contrary to the Premiffes,
fhall be utterly void in Law (w). And by the Three and thirtieth ^"^^ ^^- ' 3 Ei.-
Canon of the Ecclefiajtical Co«/?//«/;67?/,Ratified and Confirmed by ^^^' * ^' '
King Jaf^es undtr his Letters Patents, ^n. 160 g. it is in Con-
formity to many Decreesof the Ancient Fathers, further Ordained,
That no perfon /hall be Admitted into Sacred Orders, except he
fhall at the fame time Exhibit to the Bifhop a prefentarion of him-
(elf to fbmc Ecclefiaftical preferment then void in that Dioce/s ; or
bring to the fald Bifhop a True and undoubted Certificate , that
either he is provided with fome Church within the Diocefs, where
he may attend the Cure of Souls,or of fbmeMiniflers place vacant,
either in the Cathedral of that Diocefs, or in fome other Collegiate
Church therein alfb fituate, where he may exercife his Miniftry :
or that he is a Fellow, or in right as a Fellow, or to be a Chaplain
in fome Colledge in Oxford or Cambridge : except he be a Mafter
of Arts of Five years fl:anding,that liveth of his own charge in either
of the Univerfities: or except by the Bifhop himlelf that doth Or-
dain him Minifter, to be (hortly after to be Admitted either to fome
Benefice or Curatefhip then void: Andincale any Bifhop fhall ad-
mit any perfon into the Miniitry, not qualified as aforef;ud, he is to
keep and maintain him, till he prefers him to Corns Ecclefiaftical
Living, on pain of Sufpenfion for one year from giving of Orders^
by the Archbifhop affiftcd with another Bifhop («). (») Canon Ec
(7.) If a Bifhop Ihall refufe to Admit the Clerk, the Writ o^ jff n^^'^g g:,
Quaremn Admifit may lie in the Ca(e(o); yet the Ordinary, be- j^-'^j, ' ^^^
fore he Admits the Clerk Prefented, may take a reafbnable time, cor? verf. E-
to examine him; and if upon Examination there be juft caufe of plfc. it. Dav.
Exception in refpe<5t of the Clerk prefented, or othcrwife in re- t:roke.
rpe6l of the Patron prefenting, he may juftifie the non Admiffim
of him, for this ./4</w{/;/5"ow is no other than the Ordinary's AUov/-
ancc
274 ^/ Examifiaiion, Admijfion.
■ ' — 1 ; e
ance of a Clerk prefentcd to a Church that is void. But if th
BKhop refufc to admit the Clerk prefenred to him by the Patron,
-as fcrupling the faid Patron s Right of Prefeiiration, a^'^ ^IjJ ^^r
Patron after recover his Ri§ht of prefentation again ft the Bifiiopm
the Common Bench, he Ihall then have the Writ o^ Ad?mtte7ido
3 8 andRe-ift. againft the Bifhop of Coventry and LicbfieU, compares tli;s Admii-
ofWritsSo.h'^ fion and fuch Afts of the Ordinary to the Admittance of a Copy
holder upon Surrender, fpecially where the Admiffionof one be
upon the Refignation of another Incumbent : And he is there ot ,
opinion. That if a Parfon Appropriate (which is Patron) Prel;nt,
and his Clerk be not Admitted, but refufed forjufl caufe and No-
tice given, the Lapfe (ball incur (^). The ufual Form or Tenor
(^)Mich. lo. ,,f an Admitfion into a Reftory or Parfonage runs in this manner,^
S'andGW VIZ.. LA. B. hj virtue of this Infirument from]o\in Lord BiJl:op of
vcrf. Bifh. of L.in Us Triennial Vtfitatm, to all Clerks, Re^ors, Vicars, Mint-
Conj. ^ndLichf.py.^^ Cha fains, and Curates whatfotver within this Dtocefs direct-
Hob. Rep. ^j^ ^^ ^^^^.^ Y.G. into reaU a^ual, and corporal poffeffion of this
Church of R. together -ivith all the profits, dues, members and ap-
purtenances whatfoever thereunto belonging, In the prejence ofthoje
whofe Names are under tvritten.
(^^.) Infiituticn according the Canon Lrf3^, is no other than a
Verbal Collation to a Benefice or fome other Ecclefiaftical Living,
De InBit. lib, 4. Decretal. & Sexti. and is by that Law taken for
an Invefture ; c. ad hac, de Offic. Arckid. c. cum venifjet, die. tit.de
Infi. For when among the Romans a Clerk was Inftituted^ theCuf-
• tom was, that by a Verbal Collation the Clerk was invefted in the
Benefice, by the delivery to him of a Ring, Staff, Cap, Pe-njOr the
like, in the nature of Livery and Seifin : in token of his policinon
of the thing to which he was fo Inftituted : c. cum ohm, dere Ju-
dic. cap. ex ore, de lis cju^ ft a?ralat.& cap. ut nofirum, de Offic.
Archidiac. Somewhat in refemblance to our Tenants by the Verge,
or fuch as are Admitted by the Rod in the Court of antientDem.eln.
But this InHitution as pradicable with us, confifls in the Letters of
Inflitution dircaed from the Bifhop or Ordinary, in whofe Diocefs
the Church is, to the Clerk the PrcC^nsec, by which he Admits
him as lawful incumbent to that vacant Church whereto lie is Pre-
fented by the Patron thereof ; the iaid Clerk having not only firft
taken the Oaths of Allegiance and Supremacy, with Renunciation
of all Foreign Powers and Jurifdidions, according to the Laws and
Statutes in that behalf provided, but alfo of Canonical Obedience
to the Bifhop of that Diocefs and his SuccefTors, and that he hath
made no Simonlacal contrail, for or concerning the f^id prefentati-
on: whereupon the faid Bifhop or Ordinary doth by his faid Letters
of
Injtitiitiony and Induciion. 275
'• of Inftitution conftitute and invelt the faid Clerk Re(5ior of the Re.
<5lory of the faid Parochial Church, cum cura animarum Varochia-
noruwy together with all Rights, Privlledges, and Emokiments be-
longing to the fame^yuribus d^ Confuetudinibus Nofiris Epifccpali-
hus^ (^ Ecclefia nofira Cath. d^c. Dignitate c^ honore in omnibus
femper falzf^.D'iCEceCis idimfignijicat in effe^u ejuoad Junjdiclio^
■ mm Ecclefiaji icam^ruodTerritoriam efuond furifdi^fonem Tempora-
' km. //^ Andra^, e?" D. D. in c. cum Fpifcopus/de Ojfic. Ord. lib. 6.
"D'lcectdsfignificat locum Spiritualem/jicuuTcrritorium locumTem-
foralem. Alberic. infuo Dtci.'ver. Dicecefis. This Inftitution to aBe-
nefi emaynot, by the i<)th. /irticU of the Canons, be to anyper-
fbn preordiined, except the firft fhew the Bifhop his Letters of Or-
ders, n? alfb (If he require it) a Teftfmonial of his former good life
and behaviour. Moreover,by the Law he is obliged to fubfciibe the
Articles of Religlt.'n, toSv/ear Canonical Obedience to the Arch-
biiliop of Canlerbuty and his Succeff^rs, and to his DIocefan ; and
for his Ptrfbnal Refidence , if it bs a Vicarage, yurt.mentum de
Cancfiica Ohcdicntia, viz. E^o A. B. juro, c^md praftaboveramd^
Canonicam Obcdientiam Epi;copo Londinenfi ejuj^ue SucceJJbribus ,
in omnibus licit is d^ honeflis. Sic we Deus adjwvtt. It a Clerk
fhbuldkill his Prtlate^ to whom he hath Sworn Canonical Obedl-
erxe, it is Eetty TreaJonVid. 1 9 H,6.^j.b.'vid.Staf.z^.E.^.De Pro-
dit. cap. t. But if the Dioceftn, notwithftanding the exhibiting the
Prefentation before him, or his Vicar General, having power to In-
ftitute, and notwithftanding Requlfition made him by the Clerk
Prefented In order to Inftitution, (hall refufe to Inftitute and admit
him ; he may thereof enter his Complaint before the Dean of the
Arches .i who thereupon fends his Letters to the faid Bifhops,whick
Letters or Refctlpt is itvmtdi Duplex Querela: So that as to the
fubftapceof the PremllTes touching this Subjeft, the pra6tice with
W3 at this day doth well nigh correfpond with the Ancient Canon
Law, ■whereby it is cxprefly Ordained, lib. ■^. Decretal.l^hzi all
Ecclcfiaftlcal Livings and Benefices fhall be had by Infiitntion, to
be by the Bifhcp or his ChancelIor,or fuch other as hath Epifcopal
Jurifd:6l:on, politively declaring, That without fiich Inftitution,
neithtr any Benefice is lawfully obtained, nor can be lawfully re-
tained : Adding withal,That Benefices void ought to be granted
within Six months after knowledge of the voidance thereof, other-
wife the Grant thereof devolves and comes to the Superiour , and
that he who doth caufeor procure himfelf to be Inftituted into a
Benefice, the Incumbent thereof being allA'e, [hall be depofed from
h^s.Oi-dGrSyDecretal.ibid.
A a a (9.) Alb-ic-
2']6 Of Examination^ Admiffion,
(9.) Albeit the Cognifance of this matter oi Jnftimions islb
.\properly and connaturally inherent in the Ecclefiallical Jurifdldi-
,pn,. yet the Temporal and Common Law itfeems hath in feme cafes
took notice thereof, for it is there Reported, That every Redory
, doth confift upon Spiritualty and Temporalty : As to the Spiritu-
alty, 'vizj. Cura anmarum^ the Preftntee is compleat Parfbn by In-
fiitutkn\ for when the Bifhop upon Examination finds him able,
then he doth Inftitute him in thefe words, 'vix.. Inflitm te ad tale
Bemfcium, & habere Curain animarum of fuch a Parifli Accife
{r) 41 El B.R. Cur am tuam & nteam. (r) And the very Infiitution to a Benefice
Co. 4. par. 7P. the Law underftands as an acceptance, and the having of a Bene-
D/gl>ie*sC^(e. £^g. ^g ;„ ji^^t Cafe of Dfgh^\ where it is held, That if a Clefk
be Prefented, Admitted, and Inftituted to a Benefice with Cure, to
the value of 8/. and afterwards and before Indutlton he accepts
of another Benefice with Cure, aiad is Indu<9;ed in the fime ; the
Firft Benefice is void hy^ the Statute of xl H. 8. For the words of
the Statute are, A ?arfon, having one Benefice ivitb Cure-, &c. Ac--
cepts and takes another,&c.And he who is Inftituted to aBenefice,is
(s) GO. ibid ^*i^ f° ^^^^ Accepted a Benefice, and to have a Benefice, (j) And
Dighie's Cafe, he that is Inftituted^ may enter into the Glebe-Lands before hisln-
{t) Pafch. 1 ?. du6lon,and hath right to have it ^gainft any Stranger whatever, (t)
]tc. B. R. fer. ^nd albeit by the tivil and Canon Law an Inftitution granted af-
Co Rol, Rep. j.gj, ^ Qaveat Entred is void, yet by the Common Law it is other-
C«)P- Mjac. -c / \ ~ J /
B R. Cafe. ^"^ W'
Hitchm and (l o.) By the Infti^utlon the Parfon hath only Jus ad rew, he
Glover. hath not Jus in re until he;hath Indu^ion j and therefore if a Prc-
■Rol. Rep. bf ndary, Parlbn, or Vicar, after he is admitted and Ijift tuted, atid
before he be Inducted, grant an Annuity out of his Prebend, Par-
fonage, or Vicarage, and the fame be Confirmed by the Patron and
Ordinary, or by the Dean and Chapter, yet this ihall not charge
^ the Glebe, or the Succefior of the Prebendary, Parfon or Vicar :
(for although by his Infticution he hath (as aforefaid ; Jus adreWy
yet he hath not Jus, in re-, but the charge in fuch cafe (hall lie upon
r-v) s Eliz. thePerfbnof the Prebendary, Parfon, or Vicar,, and not upon the
Dyer 2.i i. vid. t 1 / »
H.nvand Lands (xj. , , ^ , ^ r rrr a
Birkley\ C. f 1 1 •) The Church at this day, fince the Statute ot m(tm. a. is
Plow.com. not Full by Inftitutionof the King; and therefore if the King hath
528. ace. ^ 'X'hIq by Lgpfe to Prefent fro hac 'vice, and he Prefents, and his
21 Cafe' vid* Clerk be Inftituted, but dies before Induftion, the King in that
Ca 10^. pan ' C'i^e may Prefent again j and fo it hath been Adjudged, (j) Which
1 32. in Hohs plainly (hews, that Infiitution without Induction doth not work a
Cafe. vid. 10. Plenarty. It hath alfo been held. That the Letters of Infiitution
Eliz Dyer, u8. Sealed with another Seal, and made out of the Diocefs, are good
ace, °
Inftitution^ InduRion, and Refignation 277^ .
enough. (2:,) Or* if a Caveat be Entrcd with a Bifhop, and he ^O Hill. 8.
after grant Infiitution, yet the Infiitution is not void by the Com- ^^ ^°'- 45'4-
mon Law; otherwife by the Spiritual Law. (<?) Notwithftandinggjj^' """^g^
what was juft now fald, it is Adjudged in Digbies cale, That Davids.
a Benefice is taken, received and had by Inftitution only ; and there- Cio. Rep,
fore a Qualification or difpenfation following comes too late, {b) (^0 Pafch. 13.
So that iT a man having one Benefice with Cure by Infiitution only, J'J^' J^- ^•
accept another by Inftitutlm only, without Di(pen(ation, the Com- '^V^f^
mon Law makes Avoidance A6lual, if the Patron will (c). Rol.Rep,
{b) Co. lib. 470. (f ) Mich, i e Jac. rot. 2.542. dh Sc Glovtr vcrC B. of Cov. and Li(hf. Hoh.R,
(la.; Proceedings belnginthe Ecclefiaftical Court to remove aa
Incumbent after Indu^ion, a Prohibition was granted to ftay ihe^
fame ; One Oliver fued a Quare Imfedit again ft HuJ/'ej, and while,
that depended, Hujjey was Inftituted and Inducted, and Oliver
fued HtdJJ'ey in the .Spiritual Court to remove him. Noy prayed a
Prohibition, Firft becaufe he may not fue in Two Courts for the
fame caufe: Secondly, beca'ufe it is a Suit after Indu£lion; andupon
that lalt point the Court granted a Prohibition {d}. (d) Olivet'.
(i ^.} In the Cafe of Denny s againft Dr^ke it was faid, That v"^- ^"^7-
if a man be Inftituted to a Benefice, he ought to pay the Firft- ^'^^^ ' *^*
Truits before Jndu^iun, by the Statute: but by the Common Law
it was ofherwile; for he is not to have the Temporalties until J»-
^a^ion, and therefore he could not pay the Firft-Fruits ; but ano-
ther perfon cannot be Prefcnted to his Benefice during the continu-^
ance of the Firft Inffitution.Avd ^n hjftiturimi to a Second Benefice
ira prefent Avoidance of the Firft (e). (e) Cafc Dtn^
04.) G. Parfbn of the Church of E. did by Inftrument in Wri- nys verf.
ting Refign his Benefice before a Notary publick, and others, into l^^^^f-
the hands of the Bifliop; and the Refignation was abfolute and vo- y^j^p'^l^
luntary, and to the ufe of M. and B. or either of them. And it j^irbie's cJct'
Was further inferted in the faid Inftrument of Refignation, Pro- fo. 79^
Ufiatione & (ub Conditioner cjuod fi alicjui ecrum non Admiffifm- Refgnationaf
r-ant per ajjenfum Epifcop. infra Sex menjes^ cjuod tunc hacprafens ^ ^«"cAf^»
Kefignatio meor vacua d^' pro nulla habeatur^ C^ nunc prcut tunc, d^
tunc pr out nunc ; and Cejiuy que ufe came within the time limited
to the Billiop, and did offer to Refign to him, which the Bifhoprc-
fufed to accept, &c. Creok for the Plaintiff; Forafinuch as the
Plaintiff may Rcfign on Condition as well, as a particular Tenant
may Surrender upon Condition, and Two Parfbnsmay Exchange,,
and if the Eftate be executed on the one part, and not on the other,,
that Parfbn whole part was not Execi-ired, may have his Benefice a-
gain, as it is adjudged in 46 E. 5. But Coke SoliicSc (jfj^/'r^v were
Cine the contrary Opinion: For that tht* Incumbent may not Transfer
A a a 2. his^
I
2) 8 . Oj Examination^ Admijfio?!,
"Ills Benefice to another without Frefenration, as appears in the re- '
cited Cafe- of 46 E. 3. Alio the Relignation is not good, and the '
Condition void, becaufeitls againft the nature of a Relignation
which niuft be Jbfclute, Spnte^ Purs, & SimpUater, and is not
like to a Condition in Law, as in the fiiid Cafeoi:' Exchange of 46
£.5. for the Law doth annex a Condition to ir, but a Collateral
Condition cannot be annex: by the parties themselves : Al(b this is
an zBi Judicial, to which a Condition cannot be annex'd, no more
than an Ordinary may admit upon Condition, or a Judgment be
confefled on Condition, which are Judicial A6l:s. But admitting the
condition to be good, yet a new Indu5lion ought to be made by the
Ordii^ary, for the Church became onetime void, and is not liJce to
fhecafein 2 K. 1. Qu.Iwf. 143. Where Sentence of Deprivation
Was given, and the Sentence prefently reverted by Appeal, there
needs no new Inflitution, for that the Church was nerer void. And
upon Arguments given in Writing by the Civilians to the Judges,
V pj. the Judgment was entred,^t;^<7«f>'f«j nihil capiat per Billam. (e)
C. B. G^rytoyt's"- ( ^ ^O I" Rud'sCafe againft the Bifhop of Lincch, it was (^inter
Cafe. alia) Refblvcd by the Court, That when one having a good Title
Owens Rep. jo Prefent, and an Incumbent by Ufurpation is Admitted, Inftituted
and Inducted, and after that the Patron Prelents, and theBifhopre-
fufe, and after the Patron recover, and then he which h id thisPre-
fcntation, exhibits it to the Bifliop; this is now a good prefentation
and the Patron cannot revoke or give him a new Prefentation: But
rf the Fatrcn before the death of the Incumbent make Letters of
(f ) The afore- Pidentgtion, th^t.is void, becaufe he had. noTit'c to P efcnt (/").
faid Cife of - ^-[^i^yinduBion is nothiiv;^ e!(e but the puttirig of the pcrfbn into
Bilho^'^oV^^ Aaual.poiTcflion of the Church and Glebe, which are the Tera-
lincdn^ poralties of the Church ; or the making of a Clerk compleat In-:
Hurt. Rep. cumbent of a Church : Tias is Indutiion, (g) and it is by Letters'
U) 15 H, 4r from the Bifhop of tlie L>iocefs directed to all and fingular the
76. b. 14H. 6 Clerks, R( 61 ors. Vicars, &c;. withinrhefaid diocels, to put the Clerk'
^'<rr ot;>. V 2.. ^.^. j^"s' la wfjl Attorney for him, and in his name, into the Aflual .'
poncifion of the Church to which he had been presented and infti-
tuted, tegether with all the profit?, dues, members, and Appurte-
nances whatfoever thereunto belonging or appertaining ; of the
due execution whereof a Certificate cndorfcd on the Initrument of
hidtiHion, and Subicribcd by a competent nuuiber of Witnefles,
ought to be returned to the faid Bifhop or Ordinary, who may
appoint the Archdeacon to give Jm^«(??/^» j (/6)yet by Prefcription
it Teems the Dean and Chapter of Pauls ^ as aUb the Dean and
Chapter of Lichfield may give InduBicn. {1} It is alio (aid. That
iLn Induclion made by a Bilhop is void, where it belongs to a Dear^;
and Chapter by Prti^ription: (^k) But an Induction by the Patron
3-8 H. <S. 15.
ih^t E.;.3.b.
{i) II H. 4. p.
(k) lb. Contr.
) 4 W.6. iind.
Jriif. 1 52. ad-
judg'd of a
Prebe:id.
Inflitution^ and hdulJiop^ 2 /p
is void; (/) yet the King's Grantee of a Free-Chippel lliail be putC'j 1 1 H. .;.to„
inro poiTtffion by rlie Sheriff of the County, and not by the Ordi (^"^ H H. 4,
nary of the place (m). ^J^- ^^- ^ ^°^-
(170 This InJiidion is not a Spiritual, but a Temporal A&: ifencm.lit c'
and therefore if after the Clerk haih been Prefented by the Patron,
and Admitted, and Inllituted by the Birtiop, the Archdeacon fhall
refufeto Inducl h'm into the Benefice, an Ailion ii|-on the C fe
lierh for the Clerk againft the Archdeacon. («) And after the In- ^^^ p.^^^^ ^
cumbent is thus Inducted, he may then plead any Plea in Bar of a Eliz. c. B. ad-
Quare Imp. brought againft: him which concerneth his PoiTeffion ;ji.ic^g Godb.
and lb may plead a Releafe in Bar, becaufe he hath the Frethold ii ^5- vid. F^tz.
h.ira, which fhall not be loft without his Anfwer: {0) For by this ^' '^ +^*
InJuBion or being led into the Church he hath, as it were, Livery j^^^/^^^' '" ^^
and Seifm thereof given him as the lawful Incumbent by delivery (a) 4. H. 8.
of the Keyes of the Church to him, and that by order of the Bi- Oyer. 1.
(hop; whereof Publication is then made to the Parifhiontr by
ringing one or more of the Bells : (f) And albeit a Parfon harh Cp")VId. do.
his Prcfentation, Admiffion, and Inftiiution, and that upon a lawful ^fP- P^^- 3-
' - '- - ^ fo. "
in Httttms CafcJ Triable by Temporal Law; and hnce by Indu- Aivlibinnop
^ion the Church is Full, it is not to be avoided, but by a Suit of "f^ ^'''^^'■^' '^''^
,^are Imfedit or the like, at the Common Law, and not to be un- ?!'^i^'^A
dermined by alledginglnfufficiency in the Irftiturlon in rlie Court
Ecclefiaftical, for that may come in c|udl:ion upon the Trial of the
InduBion2il the Common Liw, which will not be good, 'f the la- ,
ftitution were not good : All which was alfb the Opinion ot the ,
Court in the Cafe aforcfaid ; (r) for if the QMcRIon bi , whether Par- /,., y;^ j^.^
fbn or no Parfon, which comprehends Induttinn^ it is Triable at the Hutt.ns Cafe
Common Law. (s) And althouGjh by the Inflitution the Church C. B. Hob
is Full againft all perfbns fave the King, yet he is not compleat W Trin. 13.
Parfon till hidutiion ; for though he be admitted ad Ofjicium by If:' '"' ' . n
the Infiitution^ yet he is not entitled ad Beneficntm till InduLticn_ ^/,^ / // ^
(0- Rol. Rep
(18.) In an Ejelikve F/r??-/^ brought by the LelTee o{ Rof7e-^\x\- (t\ Pluw.fiJJ,
cumbent of the Church of D. it was found by Special Verdict, ^;
that the King was the true Patron, and that VVir.gficld entred a
Caz/eat^in 'vitalncumbentis^\\zi\\cn lying iw Extrew^s/al. Caveat ,
Ep'Jcopus nhjuis adr/?ittatHr,&c.NiJtConvcc.itHS lhc{i\6F/if\:f:L'!J;
the Incumbent dies, NcuTitcna. Stranger Prefenrs one AL.rgarj^vAv.)
is Admitted and Inftituted ; afterwards the faid WmgfiJd pref-'nts
one Glo-ver, who is Inftituted and Induced, and atterwardsihefaii
Rene procures a Preientation from the King, who was Iniliturci
280 Of Examination^ Admifion,
and lndu6\ed : And then it came in queftion in the Ecckfiaftical
and Indutted : Ana tnen it cuiuc m ^u^.ww ----
Court, who had the beft righf, and there Sentence was given, That
the Fi;ft Inftitution was Irrita, Vacua, & Jmnis. by reafon ot the
0^;^./,and then the Church being Full of the Second Incumbent,
the King was put out of poffeflion, and fo h,s Prcfentat.on vo.d :
But it was Adjudged and Refolved by all the Court for Rone : For
r I ) It was Refolved, That this CaveaP was void, becaufe it was in
the life of the Incumbent. According to the Common Law, II a
Caveat he entred with the Biftiop, and he grant Infbtution after-
wards, yet it is not void : After a C^-^e^f entred, Inftitution isnot
void by the Common Law. Tafcb. ^ 3 ?-; ^- ^- "'^^"1 7'f
Glover. Rcl. Rep. & Cro. far. a. M The Church upon the Inftitu-
tion of Mors-an^^s Full againft all but the King, and fo agreed
many times in the Books, and then the Prefentation of Glover ^'Z,
void by reafon- of the Super-inftitution, andtherefore noobftacle in
the way to hinder the Prefantation of Rone , and therefore Rone
had 2ood risht: And if the Second Inftitution, be void, the Sentence
cannot make it goodj for the Ecclefiaftical Court ought to take no-
tice of the Common Law, which fiith. That EccIeJIa efi flena &
eonftilta upon the Inftitution, and the perfon hath thereby C«r^w am-
7»arum. And as Dodertdge]n^\ce faid. He ^ath by it 0#c.««., but
Beneiicmm comes by the Indutiwn; And although by the Ecclefiafti-
calLawthe Inftitution may be dilannull d by Sentence, yet as
/..W,.;.faith,^/;f^r ef tn Jngl^^^^ DodertJge^ut a Cafe out of Dr.
& Student. Ukx. If a man Devife a Sum of Mony to be paid toJ.S,
whenhe comes to Full ageA^e after fuefor it in the Spiritual Court,
they oueht to take notice of the Time of Full age, as it is ufedby
the Conimon Law, 'vix.. a i . and not of the time of Full ageas^t is
in the Civil Law, viz.. -l^. So in this cafe; for when thofe Two-
Laws meet together, the Common Law ought to be preferred: And-
when the Parfon hath Inftitution, the Archdeacon ought to give him
Induftion. VidDyer 29 3. BcdmgfieUs Cale, cited by Haugbtonio
iu) Mkh. 1 J. ^^^^^^ ^jjj^ jv^js Cafe ( «>
-?"■ r'c (I q.) By the Court, that if an Archdeacon make a general Mam
Poph Sp! date for the Jnduawn of a P.rfon, viz. Umverf. pr fonts, Vtcarm',.
Clericis & Liter at is infra Archidiaccnai.meumtibicunqueConptut,
That if a Minifter or a Preacher who is not refident wuhin the
Archdeaconry, makes the Induftion, yet it is good. And the Opini-
on of four Doa-orsof the Civil Law wa^ fhewn in the Court ac-
(.v^ chr. Dems cordingly, upon a Special Verdi6\ (x\
tale. (ip) In the Cafe oi Strange^^^xn^ Foot, the f^)le point upoa
^<,f^ Rtp. j^j^ 3 ;^| Verdia was, If one Pridvaux being Admitted and Inlh-
nited to a Prebendary, with the Que, 4 Eliz,. he bdng bu^ c^jears
of age; noTwithftAnding the Statute it is mcerly void.Motc 4 H^^..
Infiitution^ Indu^ion^ arid Refignation, 281
That if a Feme who is an Infant under 14 years hath iffue, it is a
Baftard(/). 0'> Pad-. 2. j.c
f 21.) It is faid at the Common Law, that after IndtichoTii the ^ B- rot- 1 320,
Admillion and Inftitutionought not to be drawn intoqueftion in the ^^''^"^^ verf.
Eccleiiaftical Court ; (z.) for they lay, That after InduFtion\:\i& Ec- j^- ''5 j^
clehaftical Law may not call into queftionthe Infittution: That by (z) Mich. 12.
Injtitution the Church is full againft Common persons, but not a- Jac. B. be-
gainft the King; and that by Induciion the King may be put out of ^'*'^^^ ^J*" ^^^»-
poITeffion. (^) And in the Cafe between Kowrth and the Bifhop of g";^''" ^"^jt '^,
Cbefier, it was Relblved, That after an Indu^hon, an Infbirucion is ^^j jijjj 'j':^*^'
not to be examined in the Ecclefiailical Court, but by a Quare Imp. [ac. B. r.
only: But yet the Jufticcs, if they fee caufe, may write to the Biiijop ^'*'^w/; and
to Certifie concerning the Inflitution (h\ Glovtr's Ca/c.
(ii.) Two Patrons pretended Title Ko Prelcnt ; the one Pre- iy\.. J^\
fen ted, and the Bifhop refufed his Clerk. He fued in the Audunce ' ^
and had an Inhibition to the BiiTjop, and after he there obtained \nr
ftitution and Induction by the Archbifhop : Afterwards the Inferi-
or Bifhop Inflituted and Induflcd the Clerk of the other; for which
Procefs ilTued out of the Audkvce againfthim; he upon thatprayed
a Prohibition, and a Prohibition was Awarded as to the Incumben-
cy, becaufe the Ecclefiaflical Courts, have not to meddle with In-
flitution and Induiftion, (as was there faid) for that would determine
the Incumbency, which is triable at Common Law (tf). U) MiddUttn
(a^.) In a Prohibition prayed to the.Ecdefiallical Court, the'^"'^ Laroti\
Cafe appeared to be \\\\^{v'ix,. Holt was P'-efentcd, Inftituted and In- !^^ ,
duftedto the P^ri ill- Church ot Siori«ton: afterwards Dr. WickJoam ^^'
draws him into the Ecck fiaftical Court, queftioning of him for fbme
matters, as touching the validity oi: his Induction, and upon this a
Prohibition was by him prayed: Williams JuiBce, a Prohibition here .
in this Cafe ought to be granted, this being direcily within the Sra- e^ n' ^//f '?
tute 4.5' t. ^.cap. 5. tor here the very 1 itle ot the Patronage cafe, i,j
comes in queftion, with the determination of which they ought Buhtr. p^r. 1 3,
not to intermeddle j alfb matter of 7«^«^;ciw, and the validity there-
of is determinable at the Common Law, and not in the EccleliafH-
cal Court, and therefore a Prohibition ought to be granted, and the
whole Court agreed with him herein, and therefore by the Rule ot
the Court a Prohibition in this cafe was granted.
C H A Pe
282
CHAP. XXV.
Of Avoidance and Next Avoidance 5
as alfo of Ceffion.
I. What Avoidance /'/ ; h^w TwofoU.
%. The difference in Law between Avoidance and next Avoid-
ance,
9 . Hhw many ways Avoidance may happen, what Next Avoid-
ance is : The word Avoidance falls under a double Acceptation
tn Law.
4. The Next Avoidance may not he granted by a Letter, it can-
not be granted but by Deed.
5. Grant of a Next Avoidance by the Son, Leaving the Father
Tenant in Tail, is vcid.
6. How Avoidance may be according to the Canon Law, ivhich
is other by Statute Law.
7. The Releafe of the Next Avoidance, inaui after the Church
becomes void, is void.
8. A wide difference between the Common Law and the Canm,
in refpecl of Plenarty and Voidance.
9. VFat CeJJion is; andwho jhall prefent in that cafe.
10. -<^ Parfon Beneficed accepting an Archdeaconry, falls not
under this CejJlon,
M. In cajeof the Ceffon the Ordinary is to give Notice to the
Patron ; otherwife the Lapfe doth net incur againsi him.
J 2. In what cafe the former Beve.jice is not void by CeJJion, not-
withstanding the taking of another Incojnpatible, and without-
J}i pen fat ion ; And in what cafe a Church void is held vdd as
to all perfons, except an U fur per.
1 p. In cafe of Three Grantees of the Next Avoidance., whether
Two of them may Prefent, the Third being a Clerk.
14. I'^Fhat difference between an Avoidance by Parliament, and
an Avoidance at the EcdefaHical Law.
ly. hi W'h^t cafe an Adviwftn granted to a man, Jhall enure.
to him only for his life, and not go to his Executcrs.
16. A man having an Auvoyvjovin Fee of the Church, whereof
Limjelf rs Iniumbent, Divijcth that his Executors Jhi.uld
next
i
Of Avoidance and Next Az/oidance, &c. 285
next Trefent ; Ff^ether/ucb Devife of the Next Avoidance
he good,
ij. A grant of a Next Avoidance to one is not after grantahle
by the fmne Grantor to another,
1 8. Whether the Creating of an Incumhent a Bijhop in Ireland
be a fufficient canfe of Avoidance.
1 5. Where a Next Avoidance is granted to Two, whereof the
one Releafei to the others that Ot^er may after bring a Qjare
Impedit in his onn Name.
20. If one Grantee of the Next Avoidance Prefent the other
Grantee of the fame Avoidance, whether fuch Grant he void
or not?
( I.) A Voidance is, when a Benefice or other Ecclefiaftical liv-
ZJk ing is void of a lawful Incumbent : which generally
JL JL may be ftid to be Twofold j either in Fa6t and in
deed, as when the Incumbent is dead, or aftually deprived : or in
Law, as when the ^me perfbn or Par(bn hath more Benefices than
one IncompatibIe,having no Difpenfttion^nor qualified for plurality.
(a)Ov an Avoidance is either Temporal or Spiritual: (i) Tempo- /^^ Bro.tlt
ral,as hy death of the Incumbent, fl) Spiritual, as by Rcfignation, ^uare imf.
Deprivation, Creation, Ccflion. The Temporal is an Avoidance de "u. ji,
failo ; the Spiritual is an Avoidance de jure. Of this latter or Spi-
ritual Avoidance the Ecclefiaftical Court takes cognizance and de-
termines, and therefore the Supream Head may io difpence there,
that fuch Avoidance in Law fhall never come to be an Avoidance in
Deed^ and of this Avoidance in Law no Title accrues to the Pa-
tron, unlefs fomething be thereupon done by the Ecclefiaftical
Court, as a Declaratory Sentence, or fuch like. But upon Avoid-
ance in Deed, Prefentraent accrueth to the Patron prefently. An-
ciently when a Bifhop was alfb the Parfbn of any Benefice, either in '
right of his Bifhoprick, or that the Benefice was annexed to his
See, for the Provifionof his Table, or the better maintenance of
Hofpitality, the Fruits of luch Benefice or Parfbnage, during every
vacancy or Avoidance of fuch Bi(hoprick, where the Bifhop was
both Lord of a Manner, and Parlbn of a parfbnage thereto annexed,
did not come to the King (as they now do, whereby the Parfonage
and Mannor are both confblidated into one, beingnov/both holden
to be Temporalties, j but the Parfbnage came to the Archbifhop of
the Province, as a Spiritualty granted to his See by Privllcdge, dur-
ing the vacancy of the Sees of fuchBifliops as were in his Province,
as may appear by the Records of the Lord Archbifhop of C-^wrer^wr/,
Ex Regiffro Archiepifc. Caat. d^ Ridl. f^ieiv^ cap. 6, Sect. i.
B b b {%). The^e
284 Of Avoidance and Next Avoidance,
(a.) There Is in operation of Law a wide difference between
Avoidance and Next Avoidance^ the former is in ejfe, the other is
only in poJJ'e ; the former is the want of an Incumbent upon a Be-
nefice de frafentt: the other is the grant of a fupply of that want
de futuro, and is the grant of a Next Avoidance in a Parfbnage
or other Spiritual promotion, v/hich is grantable whiles there is an
Incumbent a6lually in being , and is in the nature of a thing in
A6tion, and therefore will not pals without Deed. But a prefent A-
voidance^ though it be not meerly a thing in Action, yet it is not
Grantable in that kind as the other ; The prefent Avoidance is not
valuable , and therefore fhall not be Aflets ; it m ly be otherwife
with a Next Avoidance in fbme Cafes,for the Next Az'oidande'ishut
Q) Pafch. 28. a Chattel, (h) the Grant whereof is not good without Deed, (c)
El. C.V>.Tardly Yor an Advowfbn or the Patron's Right of Prefentation to a^
o"^ ' n^^'^* Ghurchj is not a Spiritual, but a Temporal Inheritance, grantabla
{c} Mich; 31. ^7 Deed, and (if Appendant) as the Mannor it fejf to which it is
& 3 ^ Eliz. Appendant, as an Acceflbry to its principal.
Cr^ppsCzk. (^.) The cognizance of Fci-^^«cf of Benefices is Eccefialtical
i^ep, ibid. ijy j^e Statute Z5 £. 5. caf. 8. it being the want of an Incumbent on
a Benefice (as aforefaid) and is oppofed to Plenartj, This Voidance.
may be either by Death, Deprivation, Law or A6t of Parliament,
Geffion or Plurality, Refgnation,C.xe2itiov, Incapacity ,llriion,Non-
payment of Tenths, &c. So that aVoidance may happen to be fuch
cither in La-w^ or in Deed; virtually , or^ aftually. Refignation
is yuris proprii Jpo7itanea Refutatio, or the voluntary yielding up of
the Incumbent (into the hands of the Ordinary) his intereft and
right, which he hath in his Benefice. Touching the Form of i^^y^-
nation, and Proteftation, which mud be when the party will Religrt
vid. Regijt. fo. 5 ox. FN.B. fo. 17 ^. and this Refignation , which is
one of the caules of Avoidance, is to be made to the Ordinary ^
for it is a Rule in the Canon Law ; Apitdeum debet feri Renuciatio^
apud cjuem pertinere dignoj citur Cenjirivatio. The Next Avoidance
is only a power legally granted to another by the Right Patron to
g) Bro. tir. prefent a Clerk to the Church, when it fhall next become void, {d)
m.^^-\ '"^ ^^^ during fuch Vcidance of a Parfbnage, Franktenement of the
Glebe thereof is faid to be in no man, but is faid to hem Abeyance^
that is, only in the remembrance, intendment, and confiderarion of
the Law, that though for theprelent, during the time of fuch Vz- .
cancy,itbenotaclually in any perfbn, yet it is (byway of Abeyance)
in hope and expedation belonging to fach one as fhall next enjoy
the f;ime. The word Avoidance harh Two fignifications in the
Law ; the one (^and that here intended) is wlicn a Benefice or any
Eccleliaftical Living becomes F<7/V/ of an Incumbent ; the other
may be that, which is underftood ^ by what we intend in Pitad- .
ings^.
as alio of Ceffion, 285
ings in Chancerj,\vh€n we fay Confejfed or Avoided, Tra'verjedov
Denied, dec. which hath no relation to the matter in hand. Like-
wife after the death of a Bifhop, or Par(bn, the Freehold is in j4-
beyance of neccifiry {e) ; but the Law will not admit the Framing
ot Abeyances needlefs and in vain, as in Vacations of Bifhop?, Par-
(on?, or the like, as in cafe of Single Coporations, Bifhops, Deans
and Parfbns, which muft die, and leave a Vacuum of the Free- (^^ qqU and
hold (/). And this J>lext Avoidance is a Chattel local , where Glover's Cafe,
the Advowfon is, not where the Deed is; for it was refolvcd in the ^^'^- Bifhop of
Cafe of Holland verf: Shcllcj, That the Advowfon had fuch a ^^'^ Re^'''^"^'
Locality in tiie Rape, whei'e the Church was, that it accrued to the (A i, i^c in
Piaint'ff, wherefoever the Deed of Grant, or the Grantee himlelf scaccar. Rot.
W^S ^g). p6. S/jefeld
verf. Rai cliff. Hob. Rep. (.g) Mich. 1 7 Jac. C. B. Rot. 2710. Holland ras. Shellej. Hob. Rep.
(4.) C, brought a Quare Impedit again ft the Archbifhop ofC^»-
terbury and others, and declared upon a Grant of the Next Avoid-
ance, and the Defendant demanded Oyer of the'Deed ; and the
Plaintiff fhewed a Letter, which was written to his Father by the
true Patron, by which he had Writ to his Father, that he had given
to his Son, that was the Plaintiff, the Next Avoidance ; and upon
thisthere was a Demurrer : And the v/hole Court for the Den u -rer,
For that fuch Letter was a Mockery, for the Grant was not good
without Deed: and Judgment was given accordingly (i). But ^^) Mich. !?i &
by D'cd it is Grantable, whereby Advowfbns are alfb Gran'table, 32 Eliz. C B.
as other Inheritances are, and the delivery of the Deed of Grant Cr//?;>^ verf.
ofitfhaUbe inftead of Livery made of the Church it felf, ^^- '^l^^'^^l' ^!
cording to Sir Edward Coke, in the fir ft Part of his Inftitutes ^^j^^.^]
{k). Owen.. Rep.
(5.) If a Tenant in tail and his Son joyn in a Grant of i\\eNext (k) Co. i. par.
Avoidance, it is void againft the Son, and no Confirmation, for ^^'^' 4^- &
in the cafe of a Quare Iwpedit brought by Sir Marmaduke fFivel, '^^'
the Point was this : Tenant in tail of an Advowfon, and his Son
and Htii jv.yned in a Grant of the Next Avoidance. The Tenant
in tail died ; and it was Adjudged , that the Grant was utterly
void againft the Son and heir that joyned in the Grant, becaufe he
had nothing in the Advowfon, neither in pofleifion or right, nor
in adlual pofllbillty at the time of the Grant f. f sir ManvmL
{6.) The Acceptance of an Archdeaconry by one who hath a w^'vd's Cafe.,
Benefice with Cure ot S«uls, may work an ylvoidance at the Canon ^^°^- ^^P*
Law as to fuch Archdeaconry ; yet an Archdeaconry, and the
Promotion thereof, as being not any Cure of Souls, th.ough an
Ecclefiaftical Preferment , Teems not to be within the Stetuce
of II H. 8. 13. And the Opinion of Wray Chief Juftice
B b b i ii3i
2S6 Of Avoidance and Next Avoidance,
in Underbill's Cafe upon that Statute was, that he conceived the
Law there to be qualified in that cafe, by reafon of a Pro'uifo in the
fdid Statute, viz,. Provided, that no Deanry, Archdeaconry, &c.
be taken or comprehended under the name of a Benefice having
fj\p r\ Cure of Souls, in any Article above fpecified (/).
Eliz! b:r.I/«. (7-) In a ^are Imfedit the Cafe was, The Plaintiff counted,
derinllxiASa- that R. B. was felzed of an Advowfon, and granted tht Nex^
njages Cafe. A^joidance to the Plaintiff and /^.8. and that afterwards the Church
Leon. Rep. became void, and after during the Avoidance H. B. releafed to the
Plaintiff , and fo that it belongs to him to Prefent. Upon this
Count the Defendant did demur in Law ; for it appears upon
the Plaintiffs own fhewing, that H.B. ought to have joyned with
the Plaintiff in the A6lion, for the Releafe being made after the
Church became void, is notot any eff-6i:, but utterly void. So is
the Grant of the Preferment to the Church where the Church is
void, for it is a thing in A6lion. Vid. the Lord Dyer^ 28 H. 6, 16.
3 M. Dyer 1^9. 1 1 Eliz,. Dyer. 285. And afterwards Judgment .
{m) Mich. 30. was given, that the Releafe was void {m).
& 3 1 El. C.B. (8.) Touching Avoidances there is a wide difference between the
Cafe ErookesLy Judgment of the Common Law, and that of the Canon : for if a
IS^mTxt' ^^"^^ Lay-man, not having holy Orders, be Prefented to aBene-
B^ftop of ^^ ^^^» ^^^ Church remains void according to the Canon Law, not-
Limohi. withftanding fuch Prefentation ; but at the Common Law, albeit
this be a meer nullity there alfo, and void, yet it doth Adjudge the
Church to be Full according to the publick Admiflion, Jnllitution,
and Indu6lion, and not according to the capacity of theperfon,
which is a thing fecret, until fucli an one be deprived for it by
Sentence in the Spiritual Court; and fb the Church in conftrudion
of Law ( underftand it of the Common Law) is held void but
from the time of Deprivation, of which notice ought to be given
in) Hill. 39. f^ ^^^ Patron. (»] So that according to the Canon Law there
Eiiz. B. R. cannot be a Plenarty by the Prefentation, Admiflion, inilitution
Poph. Rep. and lndu6lion, of a meer Lay-man to a Church; it is otherwife at
the Common Law, which doth not fo much confider the Capacity
or incapacity of the perlbn Inft'tuted and InduClcd, as the Indi-
tution and Induftion it felf, until fuch time as there is a Sentence
€)f Deprivation in the Eccleiiaftical Court.
(<).) CeJJion is when an Ecclcfiallical perfon Beneficed is Created
SI Bifhop; or when the Parfbn of a Parfonage taketh another Re-
nciice wit:hout Difpenfation , not being orherwife qualified for
Plurality: In both which cafes their firft Benefices become void, and
are faid to be io void by CeJJion\ infbmuch that the King fliall Pre-
fent fro hac vice (whoever be a Patron) to that Bcneficc,which he
kad who was Created Bifhop j and in the other Caie the Patron,
may
i
as alfo of Ce[ft07L 287
may Prefent. {o) So that if a Parfon or Dean in England take and (o) Terms of
accept of a Biflioprick: in Irelandj it will caufe that the fiiit Church -^^J^verb.
234'
fhall become void by Cejfion. (p) Refolved in Holland's Cafe, and ^^■^''"^
in Dighfs Cafe, 4. Rep. That the Patron may Prefenr, as foon as jf"^ H^^^^'
the Incumbent is Inllituted in a Second Living, without Depriva- °'
ticn.
^10.) By the Council o^ Later an h was ordained. That who-
ever having a Benefice with Cure of Souls, fhould accept of ano-'
ther cum Cura, fhould ipfo jure be deprived of the Former, the
Patron whereof' might Present as to a Benefice void ; (^) and f^) Cone. Lac.
this without any Sentence Declaratory of the firil: Church being '^"- '^.ly.
void, if there were no Licenfe or Dlfpenfation to the contrary in |""°'^- ^- ^^P-
the cafe, (r) to prevent a Ccilion of the former Benefice. For it ^ ^ \ *j -^^6
hath been Refolved, That the Acceptance of a Second Benefice b.acc. &f/
voids the former by Cejjion; wirhout any Sentence Declaratory by N- B- 34.
the Stature of ^I //. 8. i g. but if having a Benefice cum Cura he
Accept of an Archdeaconry, the fame is not fuch a Benefice wirh
Cure of Souls within the faid Statute, as to make the former void,
as was then alio Refolved. (s) 0) Pafdi. 3 1.
(1 1.) In cafe of CeJJion in this kind, it is recjuifite that Notice ^1'^- B. R.
thereof be given by the Ordinary to the Patron, other wife the ^"^'^^'"^■'!^*"'^
Laple will not incur againft him, in cafe he prelent not within the Leon^l^Re^ *'
Six months, {t) Nor do the Courts at Common Law take notice of 315."
filch CejJion, until the fame be certified unto them by the Ordinary, (t) Co. 4. par.
And wherever an Ecclefiaftical Dignity and a Benefice with Cure 7 7- in Ho/-
are Incompatible , there the Acceptance of the one v/ill be a ^ ^
CeJJion of the other: For which rea(bn if the Incumbent ofaParfo-
nagc or Vicarage with Cure, be made Dean of a Cathedral,his Par-
fbnage or Vicarage becomes void by CeJfion^ («) unlefs he be qua- ^^^^ y Ed. 3
lified for Plurality: Or if a Dean be made a Bifhop, yea, though a G^m. Mp. 35.
Dean or Parfon in England be made a Bifhop in Ireland (as afore- 24 E. 3. 38.
faid) his Benefice becomes void,as was Refolved in E'vans and^i^- P*^"^ L^^-
"ivith^ Cafe j for that the Conftitution or Council, which makps it ^' ' *
void, is general, and not limited to any place: And fo it was alfore-
folvedi 3 •^- 3- ^^^'^- Trial, and fb adjudged, z i Jac. C. B. in the
Cafe between Woodly and the Bifhop of Exon and Manwaring.
(i2.) The cafe may fb happen, that albeit a man having a Be- *^^^ ^'^^''
neftce with Cure of Souls accept another, and be Inftituted and £a,^„/ar; i
Ihdu6"tcd into the fame j yet his hrft Benefice fhall not be void by loffin veif.
CelJicv, though the Benefices be incompatible, though there be no ^skmth.
Bilpcnfarion "in the cafe, and although himfelf be net otherwife J'^"^^ ^'^f •
qualified fcr Pluralities; For it hath been Refolved, That if a man
having one Bfnefxe, accept another, and be InflituteJ and Inducted
int©
288 Of Avoidance and Next Avoidance,
into the Second, and then read not his Articles ; That yet the Firft
Benefice voids not by Cejfion, becaufe the Second is not taken.
. \j) Notwirhftanding , it cannot be denied, but tliat v/here a
{y)D}'.<^Sr. man having a Benefice with Cure of Souls; above the value of
1 3 Eliz,. ?he Eight pounds fer Ann. doth take another with Cure, and is there-
laft Cafe ^q Admitted, Inllituted and Induded, the Firfl Benefice (with-
^ol^^mhl ^^^ Difpenarion; becomes void, as in the Cafe of the King a-
vei£ Btitley. gainft George Lord Archblfhop of Canterhurj : In which Cafe ic
Hob. Rep. was held, That the Church was abfblutely void in faUo & jure
by taking of a Second Benefice, and that by the exprefs words of
the Statute of ^I H. 8. So thiit by the Acceptance of a Second
Benefice the Church is void facto & jurc^ cjuoad the Patron and
(z) Tiln. 4. all others, (z,') Sed Q^ whether void as to an Ufurpcr j for in
Car. Rot. 441. fbnie cafes a Benefice may be void as to ibme perfons, and not
the King verf. y^j^j ^s to Others : As in the Cafe of Simony , whereby as well as
of S^'^'al^ by CeJJion a Church becomes void \ yet in that Cafe although it be
Tho.Pryfl. void to all men quorum interefi, to the Kin ti and his Incumbent,
Cro, Rep. and all that claim under him, and to the Parifliioners, to the Or-
dinary, and to the like, yet (according to Sir Hen. Hobart Chief
Juftice) it is net void to an Uiiirper ; for a man without Ri^ht
cannot Prefent unto it as unto a Church void, nor the Ordinary fo
difcharge himfelf, if he receive the Clerk of an Ufurpcr ; for he
isnoneof them quorum interefi. Pajch. 14. Jac. Rot. iol6.
Cafe of Wtnchcomh againft the Bifhop of VVinchefier and Rich,
Tulle ft on. Hob. Rep.
(i^.) If the Next Avoidance be granted to three perfons, and
after, the Church become void, and then Two oLthe Three Pre-
fent, the Tird Grantee, being a Clerk; in this Cafe the Prefen-
tation is good , and the Bilhop may not refufe him, inafmuch as
all Three were Joynt-renants thcr of by the Grant,and only Two
of them joy n in the Prcfentm.enr, for that the Third perfon cannot
Prefent himfjf; but if only one of thefe Three Grantees Pre-
'U)D. 13, 14- (ent the Third, the BlIl-iop hath pv/cr to refufe him (^l And if
E!iz. 304. f4. j^j^ Incumbent having the Advowlon, do Devife the Next Avoid-
Rol Abr. ver. j^ ^^^^^^^ j^ j^ j_ j^^.^^^ j j^^^^ ^^ Harris ^trf. Auften
Prelentment, ,* ^ -^ ^
lit. M. ^^'- ^^P'
(14.) In Hollands Cafe it was Refolved, That before the Sta-
tute of a i H. 8.C. I 9. if he which had a Benefice with Cure , acv
ccpt another with Cure, the Firft was void ; but this was no A-
tendance by the Common Law, but by Conl^itution of the Pope,
oi which the Patron might take Notice if he would, and Prefent,
without Deprivation: But becaufe the Avoidance accrued by the
Ecclefjaftical Law, no Lapfe incured without Notice, as upon a
■Deprivation or Refignation ; fo that the Church was void for
the
1
as alfo of Ceffion. sSp
the Benefit of the Patron, not for his diTadvantage ; But now if
the Firlt Benefice be of the vahte of Eight pounds fer annum:, the
Patron at bis peril ought to Prefcnt, for to an Ayoidance by Par-
liament every one is party; but if not of Eight pounds, It is
void by the Ecclefialilcal Law, of which he need not take Notice
^15.) Ina^^are 'imfedit The defendant faid A. was feized ^;«'^^ Cafe.
of the Advowlbn of the Church of D. and by E)eed 19 Jac, '^ '^'
granted to J.S. the Next Avoidance, and that J,S. died, and made
his Executor, who Prefented the Plaintiif to the Church being
void/ Upon Ncn concejjit it was found, That A, granted to J. S.
durante 'vita iffms J. S- fnmam & froximam Advocatiomm, and
that he died btfore tlie Church became void. Whether this was an
abfolute Grant of the Next Avoidance, -^^ is pretended, was the Que-
ftion. And Refolvcd, it was not ; but it is limited to him to Pie-
fent to the Advowfon if it becomes void during his life, and not that
other wife it fhould go to his Executors ; and thu'tfore it was Ad-
iudwd arrainft the Defendant C^;. ,.,, .^ r cJTp^'^
(i6\ The Incumbent of a Church purchafed the Advowion ^g;J^; R-
thereof 'in Fee, and devlfcd that his Executor fliould P^'efcnt after ^;^„ j3.^;^p ^^,
his CQZ^zi^c, and de.vi(^d the Inheritance to another m Fee. It was £,;//,/ ^ad o..
faid thedcvife of the Next Avoidance was void, btcaufe when his thers.
Will fbould take effca, the Church was inftantly void. But the Cro.par, .3.
Court held thedevife was good, for the Law is fo, and it (hall
be good ; according to the intent of the party expreffed in his
Will, id) The Grant of the Next A-voidance during the Avoid-
ance, is void in Law. Stephens ^^nd C/.r^'s Cafe M... s Reports. (^) ^-^^^^^^
ri 7.) In a Quare Imfedit the Cafe was, The Corporation oi B. ^;^ ;. ^ '
being' leized cFan Advowlbn, granted the Next Avoidance to J.S,
and afterwards g\-^nxtd.friwam&^roximam Advocationem to the
Earl of B. who granted it to the Plaintiff: The Church became
void 7 S Prelented his Clerk, who was Indufted, and then the
Church became void again. It was Relblved, that the Second grant
WIS void, fa as the Plaintiff had no Title, for when he had granted
primam&proximam ^Jmc^/zcwew to cne,he had not Authority to
m-ant it after to another; but If the Firft Grant had been lolf,fo as it
?ould not have been pleaded, there perhaps the Second Grant had .
atlns of the Incumbent a Bifhop in Ireland was a good cauleol ^-
vddance, and that tlieQi.ecn fhould have it by her Prerogative: But
I
2po Of Avoidance and Next Avoidance, isrc.
(f) Mich. 4i. if the Queen doth not take the benefit of the Firfl: Avoidance, b\it
& 41 Eliz. n. (|j^gj.g ^ Stranger to Prefent, and the Prtfentee dies, (he may not
ll fn/r.!/f have Prerogative to Prefent to the Second Avoidance (/).
Cafe (19-) The N^xt AvoUance oFa Church was granted to J. and
Cro.'par. I. B.A. releafes to B. and after the Church became void ; It was Ad-
(g) v^en^t and judged in this Cafe, that B. may Prefent,and upon Difturbancehavc
the Bifnop of^ ^ ^^^^^ /wp^^/if in his own Name {g). Or thus : The Nfxf A'vot^
cT'^'T'' ^^^^ was g -anted to Two, the one Releafed to the other, who
(iTLems and brought a J^are ImpeMt in his own Name ; and it was adjudged
Benefs Cafe, maintainable, becaulc it was before the Church was void {h).
Morc's Rep. (lo.) A. feized of the Mannor of D. to which an Advowfbn was
Appendant, granted the Nexf Avoidance to B. and D. & eorum
cuilib€tconjun^iw& divifm Hared. Executor. & Afignatis futs.
(i) sh- Godfr. yj^g c;hurch void, B. Prefents D. to the Church: Adjudged, that
Caft'"^ ' the Preftnrraent of iiim was good, though he were one of the
Mores Rep. Grantees f/).
CHAP.
1j«'.
CHAP. XXVi.
Of Pluralities*
2^1
s. Pluralities condemned hy the Council of Lztcnn j yet diffencd
•with by Kings and Popes,
a. What in this matter the Pope anciently exercifed hy 'way of
Ufurpatian, the King may now do de jurej The difference he'
tween them and the manner how.
5. What Parfc7is are qualtfied for granting or receiving Plurali-
ties.
4. Several Laws relating to PlxxtdXiliQijDifpenfations, and Qua-
lifications.
5. How the 81. annual value of a Benefice fiall he underfiood,
whether as m the Kings Books, or according to the true value
of the Benefice.
6. The Lord HobartV Opinion touching the Statute of 11 H. 8.
relating to Pluralities.
7. What the Pope"* 5 Power in England was before the making
of the faid Statute ; And 7vhether the takifig of a Bifljoprick
in Ireland by a Dean in England , makes the Deanry void
hy Cejjion.
8. The Chaplains ofPerfons of Honour, having divers Benefices^
fiall retain them for their Lives, though they be dif charged
of their Service.
5. Whether the EcclefiaBical Court may take cognizance ofPle-
narty or Voidance , after InduBion i and whether the cogni-
zance ofCefiion or no Cejfion, belongs to the Temporal or Spiri-
tual Court.
I o. Difference between Voidance hy A^ of Parliament y and
Voidance byt he EcclefiaBical Law.
11. A Prohibition granted upon SequeHraticn of a Benefice by
the Bijhop.
12. The Fifth Pargraph aforefaid Adjudged and determined.
I 3. How the Voidance in cafe of Three Benefice i in one perfon.
1 4. Benefice not void, if the King Licenfe the Incumbent to be
an Incumbent and a Bi(hop.
15. How the taking of a Second Benefice is a Voidance of thg
Firfi.
1 6. Wether Jo, in Cafe of a Chaplain of the King.
C c c 17. Whether
2p2 ^J riur amies.
ly. Whether [o, in cafe of a Si modo or Modo fir, by 'way of a
Limitation in the Difpenfaticn.
1 8. Whether the word Dlfpenfamus^^ neceJSaryintbe Letters of
Difpenfjulon/V a Plurality ?
19. The King Retainer of a Chaplain hy Word only ejualifies-
him for ^Plurality vithinthe Statute of aiH. 8.
20. Whether a Third Chaplain retained by a Countefs V/idow^
is qualified to purchafe a Difpenfation for Plurality.
%j. In reference to Plurality, whether regard is to he had to the
'Value mentioned in the Statute of 25" H.8. or to the true 'value
of the Benefice.
12. Whether Admiffion and Infiitution makes the Firft Benefice.
void without InduBion.
ij. VFhether before the Statute of z^Hf 8. the Pope might here
grant Difpenfation for Pluralities.
i.i\..y whether the Retainer of a Chaplain may be good and fuf-
ficient without a Patent.
ly. In what cafe a Difpenfation for Plurality »?/«;' come too late^.
Though before IndutHon.
2,6. Three Refolutions of Law to reference in Avoidance b^ rear
fan of Plurality.
Cl). 1 ^ Z^wr^/if/jaccordlng to the Common acceptation of the
•-^ word, is where one and the fameperion is pofTefledof
JL, Two or more Ecclefiaftieal Benefices v/ith the Cure
of Souh, Ji?nul &t femel. It was long fince condemned by the gener-
la) An. lai J- al Council of Later an, {a) whereby it was Ordained,That what-
ever Ecclefiftical perfbn, having one Benefice with Cure of Souls,
dorh take another iuch, fhall ipfo jure be deprived of the former ;
(h) Concil. ^^^ IP 1^^ conteft for the retaining thereof, flialllofe both, (b) Not-
"21 cap. 19. withflandlng which Canon,k was heretofore ufual with the Pope to
i4 E. 3. 33. ufurp a power of Difpenfation in this matter, the which de jure was
?5> E. 3. 44- anciently practiced by Kings,as Supream, and as the Original Do*
F. N. B. 34.L. j^Q^g of Benefices and Ecclefiaftieal Dignities; witnefs Edmcnd thit
Co. 4. par. 75. ^Qj^[^ ^f Bury^ who by virtue of fuch Difpenfations held feveral
Ecclcfiaflical Benefices at one and the fame rime. The Hiid Canon
Castothe fubftance thereof, relating to Pluralities) is now Con-
firmed by the Statute of il H. 8. 15. which limits the former
Benefice with Cure of Souls to the yearly value of Eight pounds
or upwards, and the time of Avoidance thereof to be immedtate-
iy after poffeilion, by Indudion Into the other wixh Cure of Souls;
with
J
Of Pluralities. 295
with power of Prekntation ^. /;.i;. granted to the Patron of the
former Benefice, and all benefit of the fame to the Prefen^ee L
if the Incumbent had died or re/igned. Quare whether theVaid
yearl; value of E.ght pounds or above, ought to be computed ac-
cording to the valuation in the Kings Books, as returned into the
hxchequer, and now ufed in the Firft- Fruits Office, or according
o thejufland true value of the Benefice, (c) ^iikewife, Whe- ^
ther.a Farfon of a Cnurch Impropriate, with a Vicar perpetualiv ^'^^^"^ ^''•
endowed acceptmg of a Frefentation unto the Vicarage without L'^EJiz 2.,
Difpenfat^on; be ^JluraUH within the Canon and StatuteaforeS ''
1 he Negative is fuppofed to give the beft Solution to the Queflil
on {^d)» ^<-
J^A "^^r^'^^'i^T' °^ ^['^?"S Y^cnXr:.,,, Pluralities, Com- SJcfp.''"^
mendams, &c. which anciently the Pope exercifed in this Realm
by Usurpation, is by the Statute of 2 i i/.8. caf. 1 1. and i Eliz.
transferr d unto and veiled in the Crown de jure ; alfo from and
under the King, in the ArchbiOicp of Canterbury and his Cam-
millaries by Authority derived from the Crown : The Pope an
aently granted to Blfhops after Confecration, Difpenfations i2.«-
fere 0- obtinere Benefiau^n cum cura cnimarum, to hold the fame
mCommenda,n the which he did in this Realm by Ufurpation.
and which the Crown may now do de jure ; for the fame power-
(as aforefaid) which the Pope had, is by the Aas of Parliament in
15 H.^. & I EUz.. m the King de jure. But there is a very mate- ^^'^•
ml difference between the DiIpenI^.tions anciently here granted
by the Popes, and thofc at this day by the King and Archbi/hop.
Confirmed by the Kings Letters Patents, which are not ^ood o-
therwife than to fuch as are Compleat Incumbents at th? time of
granting thereof, whereas it was fometimes otherwife with the
other ; whence it is obfervable, that in Dighte's Cafe the Difpen-
lation came too late ; ^. is Inftituted and Indufted into a Benefice
with Cure, value Eight pounds per annum. Afterwards the Kins:
prefenting him to another with Cure, he is Admitted and Infti-
'"/'t^^ f '^^'^' ^he Archbifhop of C^^f.r^^r; grants him Letters
of Difpenfationto hold Two Benefices j the King Confirms the
fame : Afterwards he is Induced into the Second Benefice. In
this cafe the Difpenfation comes too late, bccaufe by the Inftitution
into the Second Benefice the Firft Benefice was void by the Stat
ot 2 1 H. 8.(^).
C3 J The Acceptance of a Second Benefice, with .a Difpen/ati- (« "''" ^'^'^''
on, comes net under the notion of prohibited -Fluralmes, in c^{t■D.gh^e\ Cafe,
the Firft were under the annual value of Eight pounds, or fine
cura. And what perfons are qualified cither for the grantinp- or
receiving Pkraltties.zTppcsivs by the Stat of ii H.2,c.i% In which
C c c i tl-j^j.^
I
2^4
Of Pluralities,
there is not any limitation of Number of Chaplains to be retained
by the King, Queen,an(i Prince, and other the King's Children ;
for which reafon they may retain as many Chaplains as they pleafe,
and each of them quallhable by a Difpenfation for Plnrality : But
if either of the Kings Chaplains be Sworn of his Majefties moft
Honourable Privy Council, fuch may purchafe a Difpenfation to
hold Three Benefices with Cure of-Souls. The Ferfons fpecially
qualified by Difpenfation for PUiralities, are either (l) Such as
are retained as Chaplains to Perlons of Honour ; Or [i.) Such as
are qualified thereto in refpecSt of their Birth : Or ( 3) Such as are
dignified with fome certain Degrees in either of the Univerfities of
this Kingdom. In reference to the firft
In the Parfons Counfellor,far.ixhaf.^. of thefe, every Jrchbijlwp and Duke
may have Six Chaplainsj MarqueJ^ ■i.nd
Archbifhop
Duke— —
Chaplains.
Marquefs "^**«
Earl
Bifhop
Vifcount
Lord Chancellor
Knight of the Gartfr
Baron » ■
Duchefs,
MarchioneG,
Countcft,
Baronefs, ^ -^
Treafiirer, 1 of the Kings Houfc, \,
Coatroller, J each -*
Kings Secretary ■ ■ »—
Stat. 21. H. 8. cof.
Kings Aimer
Clerk of the Clofet
Mafter of the RollS;
Chief Juftiee B.R.
Warden of the Cinque Ports
-S
-5
-6
-4
3
3
3
Widows,
each
13.
Earl, Five ; every Vifcount and other
Bijlwpy Four ; Lord Chancellor, Three j
Kmght of the Garter, Threes Baron
Three j Duchefs, MarchioneJJ, Counte^f
and Baronefi (be'ng Widows) Two ;
Treafurer and Controller of the Kings
Houfe, Two ; the Kings Secretary and
Dean of his Chappcl, the Kings Almo-
ner and Mafler of the Rolls, Two; the
Chief Jujlices of the K ngs B^nch, and
Warden of the Cinque Ports, One.
In reference to the5'i?t(:>«^qualifi>ju£ion,
'viz,. By Birth, the Brothers and Sonso£
all Temporal Lords, and of Knights^
born in Wedlock, may purchafe UiC-
penfations to hold two Parfonages, &c.
with Cure of Soul. In reference to
theThird^ all Dootors and Bachellors of
Divinity, Dolors and Bachellors of
Law, Prefcnted to any of thefe De-
grees, not by Grace only, but by any of the Univeriitics of this
Realm, may purchafe and hold as aforefaid. Ful. Statute zi H. 8.
cap. J 5.
(4.) Although by the Letter of which Aik the Firft Living is
not void until Indu61;ion into the Second, the words being \_If the
party beinHituted and lndu5led inpejjejjlonof the Second Liumg,
that then the frBJliallhe 'void:'] yet to avoid the great inconveniency
Par. I. chap. 4 (as Sir Simon Degge ohikrvcs in his Parfons Councellor) that other-
Co. 4. 79- b, vvife would enfue, it has been held. That the Firfl Living is void
Hob. 166.. ypQj^ jj^g jj^j.g Inftitution into the Second, and (b it fhould feem the
Law.
et, \ each ^ — :
Is, J 3
Of Pluralities. 2^5
Law was before the making of this AcSt, where the party had no
Difpenfation. The fufficiency of qualification for P/«r^//(7 relates
as well to the Difpenfation as to the Parfbn; for if the Difpenfation
after its being iiad from the Mafter of the Faculties, be not con-
firmed under the Great Seal ot E«^/<j«^, other qualifications will
not fuffice. Nor are the fupernumerary Chaplains of any perfbn of
Honour, retained by him above the Nunjber allowed by the Sta-
tute, qualified for Vlurality. Cy.4.90. B. 'verfus the Bifhopof Glow
cefier and Saveacre. Andrews. More, 5-61. The death, attainder,
degradation or difplacing of a Chaplains Lord, or his difcharging
his Chaplain, unqualifies him for a Plurality of incompatible U\-r .
vings; it) otherwife of the Chaplain ofaDuchefs Marchionefs, '4-i7- •
Countefs, or Baronefs in 'cafe of After-marriage- (^) A double ^^^ Ij_ j j g^
Capacity in one and the fame perfbn of Honour to qualifr? his
Chaplains, doth but capacitate him to qualifie his number of Chap-
lains only according to his qualification. (./} A Perfbn of Ho- (*// ibid-.
nour having retained his full Number of Chaplains, and difcharg-
ing them after their preferment, may not daring their Lives qualifie
others {m). (m) €0.4.50. a^
(5-.) The Queflion was formerly puf, Whether the 8/. yearly
value, mentioned in the Statute of 2 1 H. 8, c.l 3. fhall be underflood
according to the taxed value in the Kings Books, or according to
the very true value of the Benefice? Mr. Hughes in his Tarfons Law
reports a Cafe in King Jame\ time, wherein this qucftlon was de-
bated pro& cofty the Judges eqaaiiy divided, the Cafe for difficulty
and variance of Opinion adjourned, and afterwards (as he there
fpeaks iie auditu) by order of the King compounded. («) In that f?/) Pafc. g;jica.
Cafe Two Prefidents it feems were fhewed in proof of that Opini- C. B. the King
on, which inclined to have it taken according to the very value of ^']^ ^'^^^''liQp'
the Benefice ; (<?} notwithflanding when the fame point came again ^Hank/JesOiCsi
feveral years after into queftion, the Court then feemed to incline yi^^ Hughe's
flgainfl the Opinion, which vrasfor rhe very value of the Benefice: Parf Law, cap;
But (fays he) the Cafe was not then refblved or adjudged, but re- 18.
maineth a Queflion UHdetermined. (p) Quare the Law. ^^fi^^^2dh\'snj'M' ■
and Walmjly Jufticts held the value iliould be t.Jcen according to qI^^^^^ Tr/n/
the Taxed value, as in the Book of Firft-Fruits; but Ff^arhurtonand 43 ei. g. r. "
Coke Chief Juftice, Contra. It hath been refblved in Ho!land''sC3.iCj rot. ^64. Bond-:
and likewife in Digby^s Cafe, Ke^. 4. and often before fince the and Tnhei's
Council of Later an. An. Do. ill ^. That if a man have a Benefice Cafe. Cro. par.
with Cure, whatever the value be, and is Admitted and Inflitutcd (Iwj^. 'p,jj.r
into another Benefice with Cure, of what value Ibever, having no Lr,w ubi fupr. .
Salification or Difpenfation, theFirft Benefice is ipfo fa^o (6 void. Under Po^e la?-
that the Patron may prefent another to it, if he will. But if theaocent. 3,
Patron will not Prefent, then if under the value, no lapfe fhall
incur,
2p6 Pluralities*
incur until Defrtvation of the firft Benefice, and Norice. But if
of the value oi eight founds, or above, the Patron at his Peril mud
(ai)~ShuteverC. Preftnt within Six months by the Statute of xi H. 8. (f). And
Higden. j'j-j that Cafe o'i Digby It was adjudi^ed. That wl;en a man hath a
v\A^^n'lcri' i. ^^"^^^^ with Cure above Eight founds, and afterwards takethano-
pa.'f. zoo. b. ^'''^** W'lth Cure, and is Prelented and Inftitured , and before In-
p. 236. vide du6tion procures the Letters of Difpenfation , that this Difpenfati-
Moor'sRep. on comes too late. For by the Inllitucion Ecclefia flena & confulta
Caf. Larg ad gxifiit a;:ainft ail pcrfons except the Kinp-; for every Re61:ory confift-
eth upon Spiritualty and remporaky. And as to the Spiritualty
'viz,. Cur a animarum, he is compleat Parfbn by the Inftitution; for
when theBilhop upon Examination had,admitteth him able, then
he doth Inftitute him, and faith Infiituo te ad tale Benef.cium, d^
habere cur am am?^arum of fuch a Parifh, & accipe cur am tuam,
^c. Fide ^^ H.6. i:^. But touching the Temporal ties, as the
Glebe-Lands, See. he hath no Freehold in them until Indudlion: for
by the General Council of Lateran, Anno. Dom. 1 2 1 5". it appear-
eth, That by the acceptance of two Benefices the firft is void,
Afirto jure ; for upon this Council are the Books of the Common
Law in this Cafe founded- And it was in this Cafe refolved, That
this was an Acceptance of a Benefice cum Cur a within the Statute
of II if. 8. Inititution is an Acceptance by the Common Law
f>*) Co. 4. D/V- ^ ^'
^j's Cafe. "^ A man was Prefen ted to a Church with a Vicarage endowed,
41 £liz.f. 78. the Parfon accepted of a Prefcntaticn to the Vicarage without dif-
penfation: Whether this were a Plurality by the Canon Law, and
by the Statute of zi /^. §. was the Qiieftion. Uohart Chief Ju-
ftice was of Opinion, That notwithftanding they were feveral Ad-
vowfbns, and feveral Quare Lnpedits might be brought of them,
and feveral Anions maintained for their feveral Poffeffions, yet
the Prefentmcnt of one man to the Parfbnage and Vicarage was
no Plurality, becaufe the Parfbnage and Vicarage are but one
Cure : And there is a Provifb in 'the Statute, That no Parfon-
age that hath a Vicar endowed, fhall be taken by the Name of
ri\ri>- u ^ Benefice with Cure within the Statute, as to make it a Plurality
is) Mich. 22. <■- \ •'
Jac.B. R. ^■^Vi'N'T-i T 1 r
i-VoQciley and (^O ^i'^- ^^^d Hobart mCoIt and Glovers Cafe againft the Bi-
sheBifhopof ihop o[ Coventry and Lichfald is clear of Opinion ; ThatBifhop-
Exeter-iud ricks are not within the Law under the word [Beneficesyin the Sta-
C^'^if' tute of 2 1 Z:^. 8. cap. i 3. So that if a Parfon take a Bifhoprick, it
pari ^^ avoids not the Benefice by force of this Law, but by the ancient
Common Law, as it is holden 1 1 H. 4. 60. But withal he holds it
as clear, That if a Biihop have or take two Benefices, Parfonages,
or Vicarages, with Cure, either by retainer, or otherwife de novo^
he
Of ThiY all ties, 207
he is diredly as to thofe Benefices within the Law ; for he is to aJl
purpofes for thofe not a Bifhop (whether it be in his own Diocefs
or not J but a Parfon or Vicar; and by that Name mull fue and be
luedj and Prefcribe and^Claim. For if any perfon, having one
Benefice with Cure, &c. take another, &c. whofoerer will hold
two Benefices, niufl: have fuch a Qualification, and fuch a Difpen-
fation, as the Law a i H. 8- requires: Whereupon the Lord Hq-
hart'm the aForcfaid Cafe is clear ofOpinion,Thatif a man be qua-
lified Chaplain to any Subjed, and then be made a BiOiop, his
QLialification is void,(b as he cannot take Two Benefices ^^ novo af-
ter by force of that Qualification : But if he had Jawfully two Be-
nefices before his Bifhoprick, he may by di/penfation of Retainer
(befides his former difpenfttion, to take two Benefices ) hold
them with his Bifhoprick. And if a man, being the Kings Chap-
Jain, take a Biihoprick, he holds that he ceafeth to be the Kings
Chaplain ; and Biihops are not in that refpc^l Chaplains to the
King, within the meaning cf the Statute : So that the Claufe of
the Statute that gives the King power to give as many Benefices as
he will of his own gift to his Chaplain, will not fervc them. (^) ) M'-h
In this Cafe of Colt^ &c. againft the Biihop of, &c. he is of Opi- rjc. Rot 'xT'%
nion, That if a man have a Benefice with Cure worth above 8 /. colt anj Glo^'
he cannot without Qualification and Difj:)en^tion procure another '^^'' verf Bi-
with Cure, to be united to it after, though they make but one Be- ^''P ©^ Cow»i
nefice; for this Cautel of Union is provided for by Name : But oV^^I'^^^^'-''^
Unions before, he is of another Opinion j Cafe Colt ^ Hoh^ '
Rep.
(7.J In ancient times the Pope uied to grant Difpenfatlons of
the Canons in this Realm, and fo might the King have done. The
firfl St.itute that reflrain'd the power of the Pope was that of xr
H. 8. of Pluralities : That the Church fhall be void notwithfland-
ing any Grant of the Pope: Aifb the power of the Pope wastalan
away by the Statute of 25" //. 8. Before that of the 21 H. 8. the
Pope might have difpenfed with a man to have 20 Benefices ; and
fo might the King. The zi H. 8. was the firfl Statute, or Law,,
which gave allowance for Pluralities; afterwards by the zS H. 8-
the power of the Pope was given to the King : But as it was faid
and agreed in the Cafe of Evans and ^fcough^ that was not by way
of Introdutiion^ but Cumulative and by way of Expofition. And
by that Statute the Archbifliop of Canterbury had in this matter a
concurrent power with the King, and Difpenfation granted by the ^^-^ pjj]j j^,.
King, or by the Archb'lhop, 'is good, (r) Alfb in the faid Cafe jac. 8. R. roti
it was agreed by all thejuftices, That if a Parfon or Dean in Eng- u<54- l^iJiins.
land doth take a Bifhoprick in Ireland^ it makes the firfl Church veif. ^f«._?/>r
void by Celfion ; becaufe hdand is a Subordinate Realm to Eng- ^'^^"-^ ^^?
2o8 Of Pluralities.
land, and governed by the fame Law ; For it was there agreed by
all as well by the Juftices as thofe of the Bar, That if a Parfcn or
Dean in England take a Bifhoprick in England, the firft Church is
void by Ce£ion. Juttice Whitlock gave this rea(bn for it, Becaufe
there is but one Canon Law pr totam Ecclefiam ; and therefore
wherever the Authority of the Pope^iexlended it felf, be it in one or
divers Realms, the taking of a Biflw^rick made the Deanry or Par-
fonage void. Nemo potefi habere duas Militias,nec duas Dignitates;
d^ efi impojjibile ^uod unus homo potefi ejfe in duobus locis uno tem-
fore. And 5 R. z. F. Tryal 5-4,. the whole Spiritual Court is but one
Court ; which Book is very remarkable to that purpofe. That the
Cano?i Law is but one Law: Whch reafbn was alio given by Ju-
ftice Doderidge in the fame Cafe, and upon the fame point, who
faid, That the Law of the Church of England is not the Pope's
Law, but that all of it is cxtraded out of Ancient Canons, as well
General as National. Another Reafon which he then gave was, Be-
caufe Ireland is a fubordinate Realm, and governed by the fame
Law ; Becaufe although before the time of H. z. they were fcveral
Kingdoms or Realms, yet the Laws of England were there Pro-
claimed by King John, and is rubje6l to the Laws of England. And
if the King, having a Title to Prefent to a Church in Ireland, con-
firm it to the Incumbent under the Great Seal of England, it is
good. 45- E. 1-70. (e).
0) id.f.i3 4. (^'^,)\^SavacresCa('e it was adjudged in the Common Pleas,
That if a Baron, or others mentioned in the Statute of 21 H. 8.
take divers Chaplains which have many Benefices, and after they
difcharge thdr Chaplains from their Service, they fhall retain their
Benefices diiring their Lives, and if the Baron takes others to be
his Chaplains, they cannot take many Benefices during the Lives
oi the others, which are Beneficed and difcharged of their Servi-
ces,; for if the Law were othcrwi/e, the Lords might make any
capable of holding Benefices by admitting them to be their Chap-
(0 Savacre's ^^'"^ (/).
Cafe. om?i's (9-) T. prayed a Prohibition to the Arches ; the Cafe was this,
■^eP' One had a Recovery in a Quare Impedit, and he had a Writ to the
Bifhop againfl: T. upon which A. his Clerk was admitted, &c. and
after the Recovery died, and T. fuppofing his Heir to be in the
Ward of the King , and chat the faid A. teok another Benefice
without fuliicient Qualification, by which the Church was void by
CefiHon, and he attained a Prefentation of the King, and he was
Adiij'tted, ^c. by the Lord Keeper, being within tlie Diocefs of
Lmc'An, and A. llied him in the Ecclefiaftical Court, and T. pray-
ea 4 IVchibition, and it was granted per totam Curiam ; for with-
out quellloa there ou^ht nothing to be queftioned in the Ecclefia-
ftical
I
of Pluralities, 2pp
cal Court after the Indudiion of the party ; And whether it is a
Ceflion ornot, doth properly belong to the Common Law; And
Jcftes cited a Judgment in ^/^i<7w's Cafe according. Note, that by
rhe Ccnfiituticn oFO/z^oand Othvhon^ That Inflitution and Indu61t-
on is voidable in the Eccleiialtical Court, if no Prohibition be
prayed ( u). («) Thomton't
(lo.) In the Cafe of the King againft the Archbifhopof Canter- <^*^e-
hary and Thomas Vrufi C'Jerk in a Quare ImpeJityWSLS vouclied Hoi- ^^"'^^' ^^P-
latids Cafe in Cok. 41. 5'f . to fhew that there is a diilerence be-
tween voidanct: by Act of Parlianient, and Voidance by the Eccle-
fiailical Lnw : For before the Statute by the taking of the/econd
Benefice, rhe firft Church was void ; but not lb that the Lapfe in-
curred upon it. And as for Pluralities, the words of the Statute
are, Th;i.t \t fliaii be void, as if he were naturally deadj and there-
fore ii: a man take? a fccond Benefice and dies, IfTue ought to be
taken, whether the firft 'vacat'if fer mortem; And it is found,
That Not : For it was void before the death ot the Incumbent
(i I.) P. was Collated, Inflituted, and Induced by the Bifliop a^^jJ''J"'S
o^ Exeter, Patron Dr. Hall; theBifhop Collates another, pretend- Aichbinhop
ing that rhe firft Incumbent had taken a fecond Benefice, whereup- o£ Canterbury
on the firft was voidj and remera the firft Incumbent bid a Difpen- ^"'^ ^^'^^?-
lation; And notwithftanding that, the Bifhop Stqucflers the Be- '^^'^^^•'^'' ^*^P*
nefice : and upon difcovery thereof to the Courts a Prohibition
was granted {x). , p- r >
(la.) In Bene\ Cafe againft Tricket^ the point was, Whether Cafe iv Hcr^
the value of t-heChurch for Plurality by iiH.S.niiill he eight pounds Lj's Rep.
according to the book of Rates and Valuation in the Firfl fruits
Office, or according to the very value of the Church per Annum.
Atkinfon, That according to the value of the King's Books : For
the Parliament never thought that any man could live upon ih
little as eight pounds fer Annum, which is notfix pencea day. Note,
38 £.3, 4. and Dyer i-lJ. but by the Court, That it fhail be ac-
cording to the very value of the Church in yearly value in the
Statute of a I H.2>. And by Ga7vdyznd Fenner^ to whom agreed
Telverton, That the eight pound (hall be accounted according to .
the very value of the Church per Annum (7). '-fp ?,"p'^^°
(l 3.) In a ^are Impedit it was doubted, If A. having two Be- Bene verf
nef.ces with the Cure by Difpenfation, and then take a third Be- rackets.
nefice with Cure, If nov/ both the firlt Benefices, or the firft of -^^-^ Rep.
them only be void. Hkron fdld, 1 hat it was adjudged that both of ^"''-^'^'^ ^''■^S
them fliould be void C^). ^ tjifl^'a-.-
(14.) If the King grant a Licence to an Incumbent to be an In- chdier/
cumbent andaBifliop, and he afterwards be made a Bifhop, the 2^:0/ s R^p.
D 6 d Benefice
goo QjFluyaiities.
nefice is not void, (^a) Henry de Biois, Brother to King Stephen^
(a) II H.4.(Jo.;W3o Bi{]iopofiK/»c/je/er, and Abbot oi' GlaJJp'nbmy Qh).
H.3P.E1. B. R.^ , (.1 ^;.) ic »€?em3 that at the Common Law, -if an Incumbent had
fi"^u ./"^''^'^^ taken a feeond Benefice with Cure, neicher'ihe firft nor the fecond
& Hollani per ,* , , . i / > r^' i ' i ^ i ^ m r t i i i
Cur. Refolvi'd. '"'^*^ Dcen voiJ. {c) But by the General Council ol Lateran, held.
(if) Liber. Sue. in the year ixij. it wasordain'-d, That if a man took divers Be-
ceffionis 19.. nefices with Cure of Souls, the lirft fhould be void, unlefs he had
(O.Co. .4. Hoi- ^ Oifpenfation from the Pope. (J) This CQnftitutlon of the (aid
cJ) (Zo^' D' General Council is ratified and confirmed in Pej/^^»?*s Conftituti-
by 7p. " ons at a Provincial Synod held in this Realm, (e") Alfo if an Incum-
(e) Lindw. jbent take a Second Benefice with Cure, whereby the ftril is void
lo, 81. by the Canon as to the Patron, fo as he may Preient before any
Deprivation, yet until Deprivation it is not void as to a Stranger ;
ipr if he fues a Parifhioner for T'ithes, the taking of a fecond Bene-
:£ce/is not any bar to him. Triti. I'^. Car. B. R. per Jufllce Bark.
,\V;hich JuffciceTt/'z/er^ow in his Argument in FrujVs Cafe faid, That
C/jRol. Abr. it had been fo Adjudged. . (f) And if an Incumbent of one or
verb. Prefent- ^ore Benefices with Cure be confecrated Bifhop, all his Benefices
ireat. it. L. ^^.^ -^j^^ faSh void ; upon which Voidance the King, and not the
, '' Patron, is to Prefent to the Benefices Co void by CeJJioji ; and any
Difpenfation after Confcci^ation comes too late to prevent the
Voidance; for the. Pope could formerly, and the Archbifhop'now,
^ .- , ^ can (ijfficiently Difpenfe for a Plurality by the Statute of x^ H. 8.
tteBifliopof ^£''' The chief Text of the Canon Law againfl. Pluralities feems to
Oyford, in be that of the Decretal de Trahend.^ Dign.c. de multa^ where it
Yaugh. Rep, is faid, ' That-/« Concilio Laterane»f prohihiiumy ut fiuHm dtverfas
Digmtates EccUfiaflicas-, 'vel plures Ecckjias Parocki^lesy rtciperet
contra Sanctorum Canonum Infiituta^ d^c. Et fr^jevt.i dtcretoji-atui-
mus^ut ^mcunejue receperit ali<^ucd Benejicuon cur am hahens .anima-
rum annexam^ (i prius tale Beneficinm habebat.Jit ipfo jure prfvatus:
<& fi forte illud retmere contendent^ etuiw alto fpolietaryC^c.Con-
ibnant toiwhich is that in Decret. C^iuf. 2.1. ej.j. 'Mdaabus Ectk-
Jl'is Clericus conjcribiyiuHo ■modo pctejf. ...
'In the Cafe of a Cjmnicndam adjudged in Ireland, the Original
and Inconvenience ot DifDeriiacbnj and No7% obJ}:ante\ v/as well
weighed and confidered; where it was faid, That the A^(j;? obfiante-
in Faculties and Difpejifations was invented and firft ufld in the
Paf-h Q. Tac Court of Rctnc \ ior which Marjil. F,^?. pronouaced-.a Kcc. againfl
BR. en Irelcnd the faid Court, for introducing ihat ciaute of Ihn objLtnte, That
en le Cafe dc it was an ill Prefidcnt, and imifchievousto a!l vhe Commonwealths
Commenda en- of Chriflcndom. For the Temporal Princes perceiving that the
trc hRoy & c> p^ difpcnled Vvifli Canons, in in-.iration thereof have iifed their
& Robert iVak. Prerogative to aiiptnle wm ttierr penal Laws and StatureSj.when
Davis Rep, . . as before they c«iiitd their Laws to be i'eligioiifly obftrved, like the
Laws-,
Of Pluralities. 301
Laws of Medes and ferjians^ which- could not be Mfpenced v/irh.
See the Cafe of penal Statutes. Co. 7. 4./*?. 36". L For this Reafon
itwasthat aCanoniftfaid, Difpnfatio efivulnus qucd vulnerat jus
commune. And another ftith, That all abufes. of this kind would
be reformed, Si duo tantuyn 'uerba^vizj. £N^o',t bbftantel non impe--
dirent. And Matth. Var.'m Anno Dom. I i^^j, having-recited cer-
tain Decrees made in the Council o{ Lions, Which were beneficial
for the Church of England^ Sed omnia h^c e^ alia (fays he^ fer
hoc repaguhtm \_Non ob,fante'] infirm ant ur.
(16.) In a Quare Impedit the Cafe was, Dr. P/^/t/ri being Hill. i6\o.
Chaplain of the King, accepted a Beneficeof the Prefeiiration of a^S Jac c. B.
common perfon; and he after accepted another Prefentation of the ^'% ^g"'ii'^'^
K'ng, without any DirpcnfatioTi,, both being above the value of ^"^^ '^^^"P ^^'^^
elglir pounds fer Annum. The Queftion was. Whether the firft f/^^'^'jf j/cien'c
Benefice was void by the Statute of 2 i H. 8. c.^.f. i ^. For jf that Brownl.'pa.t! '
were void by the acceptance of the fecftnd Benefice v/ithout'Di- :■
fpenfation , tbcrr this' rcinains a long time void, fq that the lt.in<y
was intituled to-prefent by Lapfc, and prefented the Plaintiff., Thie
Statute of 2 1 /?. 8y ■provfdt's. That h^. who is Chaplain to an Earl,
Bif! op, dec. may purchafe Licence orDifpenfation to rece!ve,have,
and keep two Benefices v/ithOurc, provided chat it fhallbe lawful
for the Ring's Chaplains, to ,wKt)m it,l}lall pleafe the', King to 'give
the Qiicflion was. Whether by thrslaiVProv'utiJ. a 'Ch.apl-iin of
might accept another JBenehce With Cur6 over the yalue^oFelgh
pounds a!fo of thf'Prefetrtation df tfee 'Kirtg "witiiout Di^pniation ?
Theword;- -^f rhc Statute, by whicll, the lirll: ;Ch'ur^l) is made'vpid,
arej That if any Parfon h;!vir.g one Benefice' <ii)ith Cure of Souls,
being o*^ the ye-prrly value of eight pounds on above, 'acceptor take
any other with Cu^^ of Souls, and b^ InftitUTbd and Indyciied jnto
pofTeflion of th" Ame, .thgt then, a"htJ*'irtJnoediaiely" aht:r fuchr
pofieffion had- rh.; ^of, r^c firft ' Btti'efe^fi]&ll''be' kdju'-lge J in' tlie
Law to be void ; Vi^rH:''amf$(^, 4 ^h,y^^. VThls CaTe was; ' /^--^^ ^'
not i.'-gued,but the'po^nrotil/ opened by' Dodnriit^^ Sv-Tjeant'of' a--^"-^"*^^ b'
the Kini, tor the Piairi^ilfr ,'. .\ -
{ly.} A. was Pi:;-r)n of /1/J which w^is a' Benefice wiih , Care ;^. ,■ .,
of the value at eighty' poiind^",'^^^''^!'^'^^^ Ch'ap'^iM'to rheEarl of S.''^/^^-)'^>f^^-
and ■ btalrvd a pifpenfSti.jrt'tc^gc^^'Jt^f indtl^er Ee^
within' Ten.' rntlf'sof .theforn^'e'r, 'W'htclv w>is confifmed'uri(1er the «'•,<% Vl^
Great Seal :• He'- accepted ot Vlttot^fef Beriende'SeVenteeiVrniles di-'par. 3.
D : d z ihnc
)
30 2
Mkh. 41 8c
4Z Eliz.. B. R.
The Queen and
Pagers Cafe.
Cro. Pi I.
Gro. Ibid.
Cro. Ibid.
The Queen
and Darcu\
Cafe. Cro. p. i
Or Driirie s
Cafe. vide.
idear'i Rep.
Of Pluralities.
ftant from thefirfl:_, and was Inftituted and Indu£l:ed,both Benefices
b-ing within the Diocefs of Lincoln. The Archbifhop in his Vifi-
tation Inhibited the Bifhop of Lincoln not to execute any Jurifdi-
^lion during his Viiitation; It w:s found that the Patron had neg-
le6i;ed to prcfent to the firft Benefice within the Six months ; and
that the Bifhop ot Linccln whithin the fecond Six monthsCoUated
one to the firfl: Benefice, who was Admitted and Inducted. The
points were, Whether (i) Si mcdo was a Condition in this Licence,
and made the firfi: Benefice void when he took the Second ?
(x.) Whether the Bifhops Collating, during the time of the Arch-
biOiops Vifitation, and after his Inhibition.", was good.'* Refol've'd^
That in the principal Cafe, Si rnodo fhould not be taken for a Con-
dition, and that the Benehce fliouldnot be void cfuoad the Patron,
as thetakingof a [econd Benefice is by the Statute of xi H. 8. and
then the fecond point of the Collation by the Bifhop, in the time of
the Vifitation, and alfb the Inhibition^ will not be m.itcrial.
(18.) ,^are Impedit, pretending the Church void for Plural if ji
The Defendant faid he was Chaplain to the Lord M. and pleaded
a Difpsnfaticn from the ArchbKhopof Canterhurjj3.n6Confirwation
thereof. In the Letters of Difpenfation the words were ( mention-
ing the two Benefices to be of iiiiall value) unimus, anneximus, (^
inccrporamns, the fecond Benefice to the firfl without the word of
DiJpenJ ar^us ihercof : The Court held it a fiifficient Difpenfation ;
for it is riot of neceifity i;o have the word Difpenjamus , and if the
Circumflancesproveit, ii:is fuflficient.
(19.) In the Cafe between Whet from and Higford, it was held,
by thejullices, That if the Queen retains a Chaplain byword on-
ly, yet he isfuch a perfon as may have a Plurality within the Sta-
tute of x I H. 8. of Pluralities, and is a perfon able to make a Leafe..
Arid in a Quare Impedtt it was Refblved , That if there be two
Parfbns of %hc Church, and each of them hath the entire Cure of
the PariHi, and both the Benefices be of the value of eight pounds,
and the one dieth, and the other be presented, it is a Plurality with-
in the Statute of x i H. 8.
(xo.) The Countcfs of X. being a Widow, retained tv/o Chap-
lains, and after retained a thirdj the third purchafed a Dlfpcnfari-
on to ha'.e two Beriefices with Cure, and he was advanced accord-
ingly, whereof the firfl was above the value of eight pounds ; It
was adjud'i.ed in this Cafe, and afterwards affirmed in a Writ of
Erroi-, That he was not lawfullly qualified within the Statute of
21 H. 8- by which the firft Benefice, by acceptance of a fecond,,
was void j and that the Title did accrue to the Queen to pre-
fent 5 for it was Refolved, That the Statute gives power to a.
Countefs to retain two Chaplains and no more, and when the St^
tiite
Of Pluralities. 303
ruce is executed fhe cannot retain a third Chaplain ; and the Re-
tainer of the third cannot divert: the capacity o^ Difpenfation which
was veiled by her Retainer in the two firft Chaplains.
(zi.) A Parfon having a Benefice of the value of eight pounds, Mich. 4 5 «C44.
took a fecond Benefice without Difpenfation, being above the va- Elii.B. R.
lue of eight pounds: The Coiut took no confideration of the Sta- ^^^j^J^t^^^
tu-e of ^6 H. 8. and the value there mentioned, but regarded only ^^^^ ^ '
the true value of the Benefice.
(zz.) For Title to an Avoidance the Statute of ai H 8. was ^j:^r and the
plcaJed, touching the taking of a fecond Benefice with Cure; Iffue Bifhop of Pe~
was upDn the Induction; by v/hich k feemed to be admitted, That J^^^^^'^^Jf^^^
Admiffion and Inftitution did not make the firft Benefice void with- j^ *
out Indu6iion.
(2:?.) J^i^re Iwpeclit brought, the Defendant pleaded the Sta-
tute of 2 1 H. 8. cap. I 5. of Pluralities, that the laft Incumbent had 21 H. S.c. i j,
a Benefice with Cure of the value of eight pounds, and took ano-
ther Benefice and v as Induced i Eliz,. upon which the Queen did
prefent the Defendant by Lapfe : The Plaintiff (hewed the Provifo
in the Statuteof 25 H. 8. cap. 21. That Chaplains qualified might ^^ ^ s.c. 21-
purchafe Difpen^tions and take two Benefices, and that i Eliz..
before the Parliament he purchafed a Difpenfation from the Pope,
and after he took the iccond Benefice, and died. The Q^cftlon
was. Whether before the Statuteof 25//. 8. the Pope mi^ht
grant DIfpenfations? It was RefoheJ, he could not ; for that the Dg[„;^„ ^^^
King's of England had been Sovereigns within their Realms of the the Bifhop of
Spiritualties ; and the Jufticcs held, that the Difpenfation in que- Sa/ihur/s
ftion was made I Eliz. and fb out of the Statute of 25 H. 8. cap. Care.A/w-s
2 1 . and that this Difpenfttlon to retain a fecond Benefice was a- ^^*
gainft the Statute of z i H. 8. cap. i :j.
(^24.) The Countefs of X. had two Chaplains by Patent, a third The Qweni
had no Parent of Chaplainfhip, but he was firft Retained, and took Bifliopof
two Benefices by Difpenfation : It was Adjudged, he was lawful f-'^^yf ^"^
Chaplain; for the Patent is not of neceffiry, but only in cafe where y^f^'s R^jp/"
he hath caufe to fhew it, and here he hath no caufe to (hew it, be-
caufe her Retainer was good without a Patent.
(z^.) The Cafe between Robins fi err ar(U and Prince was la efted
this.w::.. A man is Admitted, Inftituted,and Inducted Into a Benefice
with Cure of the value of eight pounds, and afi-erwards the King
prefents him to the Church of D. which is a Benefice v/ich Curc,;\nc\
he is Admitted and Inftltuted. This Archblfhop grants him Letters
of Difpenfation for Plurality jwhicli Letters the King Confirms, and
afterwards he is Induded to the Church of D. In this Cafe It was-
Adjudged, That the DIfpenfcuion came too late,becaufe It came af-
ter the Inftitutlon ; for by the Inftltution the Church is full agalnft
all
')
204 ^/ Pluralities.
all perlons except the King; and as to the Spiritualties, he is full
Parion by the Inflritutlon. f2.) Rejolviid^T't\&\ admit the Church
was not full by the Inftituiion until Indudion, yet the Difpenfa-
tion came too fare \ for that the words of the Statute of zi iif. 8.
of P luralit les are \j>tay furchafe Licence to receive arj keep tvo Bene-
fices with Cure of Souls-, 3 and the words of Difpenftuion in this
A/ear Ibid. Ga(e, were rcifere (jf retinere\ and becauft by the Inftitution the
Church was full, he could not purchafe Licence to receive that
which he had before, and he cannot retain that which he cannot
receive.
, (z6») In the cafe of a Prohibition it v/as Rcfolved, That by the
Common' Law before the Statute of x i H.%. the firfi: Benefice was
void without a Scrntence Declarative, Co as the Patron might pre-
^rmiger and ^^nt without notice. (2.) That the Statute of a i H. 8. of Plura-
Holland's Cafe. Hties is a general Law of which the Judges are to take notice
Mflw'sRep. without pleading of it. (^.) That the Queen might grant Plf-
penfations as the Pope might, In cafe v/here the Arch bifli op had
not Authority by the Statute of ij H. 8. to grant Difpenfations,
becaufe all the Authority of the Pope was given to the Crown by
the Statute. But yet the Statute, as to thofe Difpenfatlons which
the Archbifliop is to grant, hath Negative wordsj and the Bifliop
fliall make the Inilrument under his Seal.
CHAP.
30 5
CHAP. XXVII.
Of Deprivation,
1. What Deprivation //, an4 in ivhat Court to he fronoumed.
2. The Caufes m haw of Deprivation.
3. Inivhat Cafes Deprivation ipfo fa6lo, without any Declara'
tory Sentence thereof, may be.
4. A Cardinal'j Cafe of Deprivation hy reafon of Mifcreancy.
5. The Papal Deprivation by reafon of WLarnagt.
6. What the Law is in point of Notice to the Patron, in cafe of
Deprivation by reafon of meer Laity or Nonage.
7. The difference of opsrat ion in Lawbetween]^2i\umpro\\i\Atum
and Malum in (e ; and in what Cafes of Deprivation Notice
ought to be given to the Patron.
8. Deprivation ^i' rf^/(J« e/^ Degradation ^ Qi>hich Degra.diilion
at the Canon Law may he two ways.
9. -Cawdry'j Cafe of Deprtvcvtunfcr Scandalous words againft
the Book of Common Prayer, fentenced by the HighCommifjion^
ers.
1 o. Deprivation for Non-confcrtnity to the Ecclefaflical Canons^
by the HighCc f'vifjienersi agreed to be good.
1 1 . Deprivation fcrnot Reading the Articles ofReligion,accord-
■ ing to the Statute of i '^ Eliz-
la. Deprivaiion^^ f ^e H;^/j Com^^iffioners for'DmnkGnnefs.
I 5. The Church is not void by ike Incumbents being Deprivahk,
without Deprivation.
14. For an Incumbent to declare his Ajfenttothe Articles of Reli-
gion, fo far as they agree with the Word of God, is not that
unfeigned AJJ'ent which the Statute reojuires.
1 J. A Church becomes void prejently upon not Peading the Ar^
ticks ; and there needs not any Deprivation tn that
Cafe.
16. A Cafe oidercin a Sentence declarator ie for Reflitution
makes a Nulhty in the Deprivation.
17. Aa Appeal from a Sentence of T) zpnv^iion, prevents the
Churche^s^'being void pro tempore.
I.g. Upc?i Deprivation for meer Laity or incapacity, the Lay-
Patron muft have Notice ere the Lapfe incurrs agamfi
him..
It), An-
^o6 Of Deprivation'
19. ^n Incumbent Excommunicatedf and fo obHwatelj reftfiing
40 daies\ is Depriveahle.
^I.) Tp ^ Eprivationh a dlfcharge of the Incumbent of his Dl^-
I B niry or iVIiniftry, upon fufficieni: caufe againfl him
p ^ conceived and proved^for by thishelofeth the Name
of his iirlt Dignity, and that either by a particular Sentence in the
Ecclefiaftical Court, or by a general Sentence by fome politive or
Statute-Law of this Realm: So that Depn" x/^fiow is an Eccieilailica!
Sentence Declaratory, pronounced upon due proof in the Spirirtial
Court, whereby an Incumbent being legally difcharged from Oiti-
ciating in his Benefice with Cure, the Church pro tempore becomes
void: So that It is In effect the Judicial Incapacitating an Ecclefia-
jdlcal perfbn of holding or enjoying his Parfbnage, Vicarage, or o-
ther rpirltual promotion or dignity, by an A£t of the Ecclefiaftlcal
Law only In the Spiritual Court, grounded upon (ufficlent proof
there, of fbnie A61 or Dt;fe£t of the Ecclefiaftlcal perfbn deprived.
This Is one of the means whereby there comes an Avoidance of the
Church, if fuch Sentence be not upon an Appeal repealed. The
caufes of this Deprivation by the Canon Law are many, whereof
fome only are pra6licable with us In the Ecclchaftical Laws of this
Realm, and they only fuch as are confbnant to the Statutes and
Common Law of this Kingdom.
Vid. Dederidgs (-•) AH the Caufes of Deprivation may be reduced to thefe Three *
de AdvowH Heads: (l) Want of Capacity, (i) Contempt. (3) Crime. But
Co.par.^y. more particularly, It Is evident, that the more ufual and more pra-
Ct^^n/sCafe. (C^jcable Caufes of this Deprivation are fuch as thefe, viz,, a meer
3 H. 7. 19! Laity or want of Holy Orders according to the Church o^ Eng.
38 E. 3,2..b. IJliterature or Inability for dlfcharge of that Sacred Fun6lion,IrrelI-
Dyer 8. 6c. 9. gion, grofs Scandals, fome heinous Crlme,as Murther, Man-flaugh-
p. 25- 4. j.(,j._^ Perjury, Forgery, &c. Villany, Baftardy, Schifm, Hcrf-iie, Mlfl
Dve/2 ^' creancy. Misbelief, Athcifm, Simony, * Illegal Plurality, f Incor-
p. I. & 2. rigiblenefs and obftinate Difbbedience to the approved Canons of
* i H. 4. 37. the Church, as alfo to the Ordinary, * Non- conformity, Refufal
f ^/IcnveiC to ufe the Book of Common Prayer, or Adminiflerthe Sacraments,
//^A Pafch. Ij^ jj^g order there preicribed; the ufe of other Rites or Ceremonies,
Vld.Par}' c'e ' °'"^^^5 form, or celebrating the fame, or of other open and publlcic
par. I.e. p. Prayers; the preaching or publlfhing any thing in derogation there-
*Cro.jac. 37. of, or depraving the fame having formerly been convI£led for the
(a) St. I. Eliz. lil<-e offtnce; (^) the not Reading the Articles of Religion within
two Months next after Induction, according to the Statute of i 3 £-
liz.. cap. I X. The nil R.eading publlckly and folemnly the Morning
and Evening Prayc/'s appointed for the fame day,according to the
Book of Common Prayer;, within Two months next after indufti-
on
c. z
•J4.Cir. 1.4
Of Deprivation. 307
JSliins
on the Lord's Day ; the not openly and publickly declaring be-
fore the Congregation there Aflembled his unfeigned afient and
confent (after flich Reading) to the ufe of all things therein con-
tained, or in cafe of a Lawful Impediment, then the not doing (^) i4Cit. 2,
thereof within one month next after the removal of fuch Impedi- c 4.
raentj (^)a Convi6lion before the Ordinary of a v/ilful maintain- ^'^^ i3El.c.iz,
ing or affirming any Do6b-in contrary to the 39 Articles of Religi.^\^ J' ^" ^""
on, a perfiftance therein without revocation ot his Error, or re- D,.^,i{;g„l,gj}^
affirmance thereof after fiich Revocation; (c) likewi/e Incontinency,<T/i'fr^^iW«/.
prunkenncfs, and 40 days Excommunication: To all which might ^'<'». i^ '^'»«A of
alfbbe added Dilapidation, for irftems ancient!}'' to have been, a ^^H'*''^^'"'*-
Dilap.'dator was a juft caufe of Deprivation, whether it were by ^^^' ^^'^^
deftroying the Timber-trees, or committing waft on the Woods o^Mortimir
the Church- Lands, or by putting down or fuffering ro go to decay verf. Freeman.
the Houfes or Edifices belonging to the fime ; {d) as appears by Brownl. Rep.
Lyford^s Cafe, (e) asalfoin the Bifhop o^ Salisburfs Cafe. ( f)^^^' ^'
Conviction of Perjury In the Spiritual Court according to the Ec- a^>* g j^
clefiaftical Laws, which although ('as aforefaidj it be a jufl Caufcio H.6. 4^.
of JDeprivationyTnuii yet be lignified by the Ordinary to the Patron; 2. H. 6. 4J.
(i") ^2lfb muft that Deprivation^'wh.ich Is caufed by an Incapacity ^''^"■^''•
of the party Inflitutcd and Induced for want of Holy Orders, {b) ^°*u''/' ^^*
{e) Co. 1 1, par. 40. 4p. in Lyford's Cafe. (/) Mich. 11. Jac. B. R. vrd. Parf.Larp,ca.p. 1 7. Go.
1 1. 98. b.9. E. 4. 34. (g) 38. E. 3. 1 & 3' y H. 7. 14. ace. (b) 1 5 El. Dyer 25H. acc.St. zi.
a 8. en.
f^.) By the Statute of 2 r H. 8. if an Incumbent having a Bene-
fice with Cure of Souls, value S /. per ann. take another with Cure,
immediately after Indu6lion thereunto, the former is void, and void
without any Declaratory Sentence of Deprivation in theEccleiiafti-
cal Court, in cafe the Second Benefice were taken without a Dif^
penfation; and of fuch Avoidance the Patron is to take notice at
his peril, (i) And as Avoidance may be by Plurality of Benefices (/) Mich. p.
incompatible, without Difpenfation; fo alfb by not Subfcribing un- Car. G. B. ror.
to, and not reading the 39 Articles (as aforefaid} when by the Sta-''-+!* ■^''■''.'5"'<>
tute of I 3 Eliz,.c.l'u is a Deprivation ipfofa^io^^ii the Encumbent ^r^^^^^^^. '^^^^
Were naturally dead, infbmuch that upon fuch Avoidance there Pryft's cafe.
need not any Sentence Declaratory of his Deprivation^hutthevevy Cro. i. p. zj-s.
pleading and proof of his not Reading the faid Articles, is a fuffici- ace.
cnt Bar to his claim of Tithes, without any mentioning at all his (^^ ^7 ^'^^*
being deprived in the Ecclefiaftlcal Court, (k) Yet Sir Simon £^^['/s cafe
Degge in his Tarfons CcunfellorTpuu'mg the Quellion, What (hall be adjudged, vid.
intendedby the words [[Deprived ipfofatio^ as whether the Church Parf. Law.
ihall thereby immediately become void by the Fa£t done, or not<=- 'S.s^wwe
till Convi6tion or Sentence Declaratory ? niodeflly waves his own J."1-^'^rf"%
Opinion, and fays it is a Quare made by Dy^r, what (hall be in- ^^ ^ '" ^'^ *
E e e tended
']
3o8
Of Deprivation,
<?)Dycr 175
b.p. 4^-
(w) Parf. Co
j% I. cap. 5.
tended by the words [ipfofaBo Excommunicate] for ftriking with
a Weapon in the Church-yard, (I) albeit by the Canon Law,which
condemns no man before he hche^rd^requiritur fententia Declara-
tcria (m).
(4.) Touching DeprhMion by reafon of Mifcreancy, the Cardi-
nal, who by the Bifhopof Durham was Collared to a Benefice with
Cure, is fitieems) the (landing Prefident ; in which cafe it was A-
greed, that notwithftanding the Cardinal's being deprived for his
Mlfcreancy in the Court of Rome^ yet whether he were Mifcreant
or not, {hould be tried in England by the Bifhop of that Diocels
(«) Vid. f . R.i. where the Church was (n).
Fiti. 7>-;W ^4- (1^.) Among the many Caufes of DepriiMJtion forementioned,you
^"^h D^\?' ^° "°^ ^"^ '■^^^ of Marriage in the Prieft, which was anciently pra-
mw ' " S5ticable, as appears by what the Lord Coke reports touching an In-
cumbent in the time of King £^,6. who being Deprived in Queen
Marys daies, partly becaufe he was a Married perfbn, and partly
becaufe of his Religion, was rcftored again in the time of Queen
Elizabeth. In who/e Cafes it was Adjudged, That his Deprivati-
on was good until it was voided by a Sentence of Repeal, where-
by he became Incumbent again by virtue of hisFirft Prefentarion
without any new Prefentation, Inftitution, or Indu61:ion. (<?) In
^'^ S^'.'^/f'thoie days it was held, That the Marriage of a Prieft was afuffi-
•^ cient caule to deprive him of his Benefice. Mich.^^ Ma. By. 1 3 5.
(6.) In the Cafe where a meer Lay-man is Prefented, Inflituted,
and Indu61:ed,heis (notwithftanding liisLaityj fuch an Incumbent
de fa^Oj that he is notDeprjvablebut by a Sentence in the Ecclefi-
aftical Courtj but then the Ordinary is in that cafe to give Notice
of fuch Deprivation to the Patron; otherwife, in cafe the Ordinary
for that caufe refufed him, when he was Prefented by the Patron^
(^) But where Non-age is the caufe o^ Deprivation^ as when one
under the age of i^ years is Prefented, Notice is to be given, it
having been Adjudged, That no Lapfe fhall incur upon any De-
privation ipfo faBo without Notice, feeing the Statute of 1 5 Eliz,.
I X. fays nothing of Prefentation ; which remaining in force, the
Patron ought to have Notice (<^).
(y.) As in the Admiffion of a Clerk to a Benefice whatever is a
Legal impediment, will alfo be a fufficient caufe of Deprivation t
(o in reference to both, the Law takes care to diftinguifh between
that which is only Malum prohibitum, and that which is Malum in
fe; and therefore doth not hold the former of them, fiich as fre-
quenting of Taverns, unlawful Gaming, or the like, to be a fuffici-
entcaufeof a Clerks Non-admiflion to a Benefice, or of his Depri-
vation being Admitted : (r) Otherwife, if you can afFe6l him with
that which is Malum in /fj in which eafe Notice is to be given the
Patron
102
Cafe.
(p) I ? Elix.
(tj) Trin. 1 8.
Car. ^. R. the
B. of Bereford
and Okelfs
Cafe. Marjh.
1 I p. Hughe's
Abridg. verb.
Deprivation.
(r) 9 Eiiz.
Dyer 254.
^ Of Deprivation' 3 op '
Patron by the Ordinary, of the' Caufe of his Refufal or Depriva-
tion ; (s) as alfb it is in cafe of Deprivation for not Subfcribing (s) \ i Eliz.
or not Reading the 59 Articles of Religion according to the fore- ^7^^ 293. ace.
(aid Statute of 1 3 Ehz,. ix. which Notice ought to be certain and
particular, a general Notice of Incapacity not flifficing ; in which
cafe an Intimation of fiach particular Incapacity affixed on the
Church-door (If the Patron be in ^artibuslovgeremotis, or may not
eafily be affecStcd therewith) will anfwer the Law. Vid. iS.Eliz.
Dyer 546. 12 Eliz>.Dyer ^65. d^ l6.Elix,. Vyer.-^lj. (^ Co.tar.G.
x6. Gveens Cafe.
(8 J It is evident from the PremijGTes, That a Deprivation from
an Ecclefiaftical Benefice will follow upon a Difgrading or Degra-
dation from the Ecclefiaftical Function or Calling, for t\\\s Degrada-
tion is the Incapacitating of a Clerk for difchargc of that holy Fun-
<Stion, for it is the punifhment of fuch a Clerk, as being delivered
to his Ordinary, cannot purge himfelf of the Offence, whereof he
was convi6tcd by the Jury: And it is a Privation of him from thofe
holy Orders of Clerkfhip which formerly he had, as Priefthood,
Deaconfliip, (^c. (f). And by the Canon Law this may be done (^j Stanf. Plea.
Two ways, either Summarily, as by Word only ; or Solemnly ^ as Cor. fo. 1 30,
by divefting the party degraded of thofe Ornaments and Rites, & 1 3 3-
which were the Enfigns of his Order or Degree. ( u) But in mat- ^^^ ^\'^' ^^'^*
ters Criminal Princes anciently have had fuch a tender refpecl for r^' g_ °"*
the Clergy, and for the credit of the whole profeffion thereof,
That if any man among them committed any thing worthy of
death or open fhame, he was not firft executed or expofed to Pub-
jick difgracc, until he had been degraded by the Bifhop and his
Clergy; and Co was executed and put to iliame, not asaClerk,
but as a Lay-Malefa(5tor; which regard towards Ecclefiafticks in re-
fpe6l of the dignity of the Miniflry, is obferved by a Learned Au"
thor to be much more Ancient, than any Papiftical Immunity ; (x) (x) Ridl.
and is fuch a Priviledge as the Church, in refpedi of fuch as once View. p. 2..
waited on the Altar, hath in all Ages been honoured with. ^^P- ^- ^^^- *'
(9.) Robert Cawdry Clerk, Re6tor of the Church of L. was^^-
f rived of his Rectory by the Biihop of London and his Collegues,
by virtue of the high Commiifion to them and others dire6J:ed, be-
caufe he had pronounced and uttered flanderous and contumelious
words againftand in depravation of the ^odkoi Common Prayer;
but the Form of the Sentence was. That the faid Biilnop by and
with the aflent and confent of Five others of the faid Commiffio-
ncrs his Companions, and namely which Deprived him. It was not
found that the Commiflioners were the Natural born Subjecl:s of
the Queen, as the Statute Ena6ls that they fhould be. And it was
moved, That the Deprivation was void; ( i) Becaufe, that whereas
E e e X the
^lo Of Veprivatmt.
the Commiflion is to them, or any three of them, of which the
faid Blfhop to be one amongft others, it ought to have been the
Sentence of them all f according to the Authority given to them,
which is equal) and not of one with the afltnt of the other. (2.)
Becaufe it is not found , that the Commilfioners are the Natural
born Subjefls of the Queen , as by the words of the Statute they
fhould be. (3.) Becaule the punifhment, which the Statute pro-
vides for thofe of the Miniftry which deprave this Book, is to lofe
the profits of all their Spiritual promontlons but for a year, and to
be Imprifoned by the fpace of Six months, and not to be Deprived
till the Second offence, after that he had been once committed ^
and therefore to deprive him for the Firft offence was v/rongful
and contrary to the Statute. Butthe whole Court, for the form of
the Depri'vation , it is that which is ufed in the Ecclefiaftical
Courts, which alwaysnames the chief in Commiilion, that arepre-
Itnt at the beginning of the Sentences, and for the other they men-
tion them only as here^ but of their aflent and confent to it, and in
fuch cafes we ought to give credit to their Form, and therefore it is
not to be compared to anAuthoritygivenatCommonLawbyCom-
mirfion. And it is to be intended, that the Commiffioners were the
Natural born Subje6ls of the Queen, unlefs the contrary appear :
But here at the beginning it is found, That the Queen Secundum
tencrem & effeBum Acius fradicl.had granted her Commiifion to
them in caufis Ecck/iaHicisy and therefore it appeareth fufficiently
that they were fuch as the Statute wills them to be. And for the
DefrivatioTij they all agreed that it was good, being done by Au-
thority of the Commiflion; for the Statute is to be underftood,where
they profecute upo« the Statute by way of IndiiStment, and not to
rcftraln.the Ecclefiaftical Jurlfdidon, being alfo but in tlie Affir-
mative. And further, by the A61 and their Commiflion they may
proceed according to their difcrction to punifti the Offence pro-
ved or confeffed before them, and fb are the words of their Com-
miflion warranted by the Claufe of the Acl. And further, the Ec-
clefiaftical Jurifdiftion is faved in the Aft. And all the Biihops and
Popifh Pi-iefts were deprived by virtue of a Commiflion warranted
(.0 ca-mdry by this Ckufc in the Ac^ VUWU.ii 3 Eliz.Rot. 3 1 5. (x).
vcrf. ^tton, (10.) Before many Noble-men, Archbilhops and Bifhops, and
Pop. Rep. the Jufticcsand Barons of the Exchequer, (i j agreed, That the
v-i4.thisCafi Detr'i'vation of Minifters for Non-conformity to the laft Canons
Cbkt lib. 5- 1- -vvas lawful by the High Commiflioners : For by the Common Law
the King hath fuch a power in Caules Ecclefiaftical; and it is not a
thing de novo, given by the firft of Eliz,. For that is Declaratory
only, e-cc.and the King may delegate it to Commiflioners: And the
K. without a Parliament may make Conftitutions from the Govern-
ment
**• Of Deprivation. 3'^
ment of the Clergy : and that fuch a Deprivation ex officio, without
Libel is good, (i.) rU the Stature of 5 H. 5- ^•4- »s to be in-
tended, when they proceed upon Libel, and not v^hcn ex officio.
Read the Statute. f^J When their Petition is Subfcnbed by agreat
number, with intimation, That if the King denies their Suir,^that
many thoufands of his Subjefts (hall be difcontented i That this 13
an Ofifence Finable at difcretion, and is near to Treafon, by railing
Sedition by Difcontent,&e. (>)• Vid. More'i Ref. Trm. ^. Jac m 0) Hm. ..ja,
the Star-Chamher. . • -n n j -r/; * nL'/r'^I?
(II.) By the Statute of 13 E/;^. cap.l^, itisEnaded, That ^"^s Rep.
every perfon, &c. to be Admtttedto ^ Benefice imth Cure.except that J "^^^^^
Mm Two months after his hduBion, hefubltckly Read the jatd Mlcon.be,
Articles \ in the fame Church whereof he jhall have Cure,m thetme f Th 39 Arti.
of Common Frayer there, -With a declaration of his unfeigned ajjent da ofR.hgicn.
thereto,&c.{hall be upon every futh default ipfo fafto tmmedmtely
deprived. l:^tnU\o^vs afterwarda Trovijo relating to this claufe,
viz.- Vrovided always. That noTttle to confer or Prefenthy Lapje,
(hall accrue upon any Deprivation iplb fade, but after Six months
after Notice of fuch Deprivation given by the Ordinary to the Fa-
iron. Thusthe Patron immediately upon fiich Deprivation m^y Pre-
fent, if he pleafe, and his Clerk ought to be Admitt^ed and Inftituted;
but if he doth not, no Ldpfe incurs until after Six^months after
Noticeof the Deprivation given to the Patron by the Ordmary,who
it feems is to fupply the Cure until the Patron Prefent. In the laft
Cafe of the L. Dyer.x^El. it was Refolved, That where a man kav-
inj. a Living with Cure undervalue, accepted another Under value
alfchavlng no Qualification, or Dlfpenfation, and was Admjtted,In-
ftituted, sflnduaed Into the Second, but never Subfcnbed the Arti-
cles before the Ordinary, astheScat. of i 3 El. requires Upon Quef-
tion, whether the Firft Living vacavit per mortem of b.m or not-. ^
the Court Refolved, That the Firft Living became vacant oy nis
death, & not by accepting the Second, becaufe he was neverlncum-
bent of the Second, for not Subfcribing the Articles before the Or-
dinary, whereby his Admiffion, Inftitution, and Induaion mto the
Second Living became void, as if they had never been; This d.fters
from the Cafe of not Reading the Articles within Two month s^iitv
Induaion : For the not Subjcribing the Articles makes, that he ne-
ver was Incumbent of the Second Living, & confequcntly no caufc
of lofing the Firft; but the not Reading th^ Articles ^viihm Two
monthslhcr Induaion, doth caufe a deprivation of tliat wnereof
he was Incumbent. For as an Incumbent, he that without ^m^tfica-
tion or Defpenfation doth take a Second Living, doth thereby lofe
the Firft: (0 the fame Incumbent for not K^^^/«^ the ^rm/^f with-
in 7 wo months after bis Induaion into the Second may lole the be-
conda.
312 Of Deprivatio7i.
cond, and thereby lofe hoth.'uiz.. the Firft by taking a Second with-
out qmUficattm or dtf^snfation, and the Second for not Reading
the Articles^ as aforclaid, whereof he was Compleat Incumbent
by AdmifHon, Inftirucion, and Indudion of the Second Living
full Two months before he loft it for not Reading the Articles
{a) VId. Shute (^z.).
Gal-elf'"' ^^i^'). ^""'^'j:^ ^^^"g P^'-^^" of the Church wss devri-ved by the
Vaugh. Rep ^'g*^ Commiffioners for Drunkennefs, and moved for a Prohibiti-
on,but It was not granted^ and he was direded to haveanAftion for
Mich. «.Jac. the lithe, and upon that the vah'dity of the Sentence (hall be drawn
BrotnVRef* '"/l"^'^^"' j^ ? ^a" be Admitted, Inftituted, and Induced to a
Bfowni. Kep. church, and afterwardsis deprived for that he was Inftituted con-
/• • trary to the courfe of the Ecclefiaftical Law, fuch Sentence of de-
, X u-n r P"^f ^?" '^ ^^'^ at the Common Law, for that it is a Lay-Fee by
B R ;LV'-^" ^^J^e.Induaion. (.) If a Town ercft a Common School, and allow
Lk.and Maintenance to the Schoolmafter, the Bifhop may not remove
Gloojer. Ad- f '"^ ^"^ put in another at his pleafure ; But if he be a Recufant,
^udg!d. he may remove him by the Statute of 1:5 Eliz, cap i m
?JrTruJ' (^^3-) Aj.^h°"gh^n Incumbent be ^e^r/x^^^/.f ye't the Patron
^B^oJcar. ^^^^^^ ^'"fi^"' !"°^!^5 ""^'^ ^' ^e depnved, for till chen the Church
n/le's Cafe, \' ^ot Void. Alfo if the Vifitor by the Kings Command return
pr Curiam. ^"^0 Lbancery good matter for deprivation of the Kings Clerk yec
the King cannot Prefent another to the Church, until he be depri-
(c) Rol. Abr. vcd. Contra ij. E. ^, 5-9. k (c).
v,r. Presentment (14.) Where two Incumbents were of one Church, one fued
I^t.p. the other m the EccJeiiaftical Court tobe deprived for not Reading
the ^mc/^j and giving, his AITent to them according to the Sta-
tute of I ^Ehz,. The ifTue was, whether he gave his AITent; the
Jury found he read the Articles, and faid I give my aJTent to them
asfarastbey agree vntb the WordofGod:And it wasAdjuged That
It IS not fuch an unfeigned AITent as is within the intent of the Sta-
{d)Smth%nA tutef^).
clerk^z Cafe. (15-.) In a Prohibition the Cafe was, J. S. feized in Fee of the
'" " ^ jrfr f/'; ^"^^t °^-f • ^''''^'^' thereunt" J: whl ;':
Inftituted andlnduaed, but did not read the ^rr/ ./.. acccording to
the Statute of 15 £/,^. Afterwards came the General Pardon of
18 £/.^ Afterwards D was deprived by Sentence for not Reading
he Amies he Appealed, and depending the Appeal B. the Plain-
tiff obtained a Prefentation from the Queen, and was Inftituted and
Inducaed i) died, and he that had the Ad vowfon Prefented R. the
other Defendant, who fued in the Ecclefiaftical Court to be Ad-
mitted. It was Refolved, That the Church became void prefently
by the not Reading of the Articles, and there needed not any d/
frivation, and the Pardon in this cafe wnrl., «^rk;.„ . cl .u
this cafe works nothing ^ for the
Church
I
V. Of Deprivation^ 215
Church being once void for nor Reading the Articles he cannot
by the Pardon be refl:ored,and the Pardon will not reach to it ; for
the punifhment is to lofe his Benefice: Adjudged^ the Prohibitioato
ftand. {e) But if a man be depri'ved for an offence done Tempore (e) Tria. 41.
Tarliamcnti, and the Offence be after pardoned by the fame Parli- Eliz. B. R.
ament, and then the Parliament endeth. Jn this cafe the Deprivation ^"'^^^ and
is void in" it (elf, and the party need not fue to reverie it ; for the ^''^"^'s Cafe.
Parliament relateth to the Firff day thereof: As was Relblvedin
FoxisC^ihm (/)TrIn. 270
( 1 6.) In a ^are Impedtt the Cafe was, That L. had Two Pre- Eliz.. C B.
fentations, and W^. the Third, of Inheritance perpetual: L. Prefent- •fo^'e'^ Cafe,
ed f. who was Inflituted and InducSled, and afterward* in the time ^^°' P* '*
of Qaecn Mary was deprived, becaufe a Married man; wherefore
he again Prefented D. who was Indu6ted. Afterwards P. was re-
ftored, witha Declaration that he had good Tiik : Afterwards /*.
died,and^. Prefented H. L. brought the ^are Impedit. Itv/as Ad-
judged for the Plaintiff, becaufe the Sentence declaratory for the
Reftitution made a Nullity in the Deprivation, and Co avoided the
Incumbency of D. and fb L. had good Title to Prefent at his Se-
cond Turn, and IV. had no Title to Prefent as yet ( g). (g) lovedon
, ('i 7-) In Hornigold's Cafe againft Brian it was faid, That if a and Windfer'^
Judgment of Deprivation be given in the Eccleikftical Court a- Cafe-
gainft a Parfon for his Benefice : if prefently upon this Judgment ^°^' ^'^*
he makes his Appeal, the Church is not void,but he remains Parfon •
during all the time of this Appeal ; for if by this he doth reverfe Trln- n Jac.
the Judgment, he (hall need no new Inftitution and Indu6i:ion : 2°^- Homigold
As if a Judgment be given of a Divorce in the Eccleliaftical Court; verC 570W.
and this is after reverfed by an Appeal, there fhall need no new " ^'^ ^'
Marriage. And in this Cafe Coke Chief Jiiftice faid, That 39 £.3.
hath the fariic Cafe : And that if an Appeal be from a Sentence of
Divorce, they are now by this Baron and Feme again : So if a Par-
fon be deprived, and Appeals, he is by this Parfon again, and may
have an Aftion of Trefpafs. And as touching Appeals in reference
to Deprivation, there was a famous Cafe in the Court of C. B. a-
bout ^ or 6 Jac. a Worce^erpHreCafe, between L^c^were Plaintiff
and Carr Defendant, in an Adtion of Trefpafs, and upon Non
Culp. pleaded, a Special Verdi61: was found, viz,. That Bonner
was made Bifhop of London , in the time of King H. 8. and lb
continued until z Ed. 6. at or about which time a Commiffion
iffued forth to the then Lord Chancellor and others, to Convent
Bifhop Bonner before them, and to examine him; and if they found
him to be Contumacious, and would not Anfwer them, the Com-
miifioners were impowered then to Imprifbn him, or to Deprive
him : The Commiffioners upon this did firft Ilnprifbn him, and
after-
1
214. Of Deprivation* *
aiterwards proceeding further agalnft him, to Deprivation : Bon-
ner from this Appealeth (and his Appeal not heard) Nicholas Rid-
ley Is made Blfhop of London, who makes a Leafe of the Park and
Mannor of Bujlilej, under which Leafe the Defendant claimed.
Afterwards, 'viz,. Vrimo Maria, Ridley Is declared to be an Ufurper,
and Bonner by a Sentence Definitive is reflored again to the Bi-
fhoprick of London, and makes a Leafe of the Premlfes demlfed
to the Plaintiff. Upon which Special Verdi<5t the Points flirred
were thefe : (i j Whether the Deprivation of Bonner was lawful
or not ; the Authority by the Commiflfion being in the Disjun-
ctive, vix^. to Imprifbn or to Deprive him ; and ( as it was
urged) they firft Imprifbning of him, had thereby executed their
Authority, and fo then the Deprivation void, (x) Admitting
the Deprivation void, then Bonner flill continued Bifhop of Lon-
don: And then Ridley was never Bifhop ; for that there could not
be two Bifhops of London Jimul (ir fern el, and fo the Leafe by him
made to the Defendant was a void Leafe. (3) Admitting the De-
privation good, then Quid cperatur by the Appeal, whether it did
not fufpend the Sentence or Deprivation : And if ib, then again,
i?;^/ey was no lawful Bifliop; and fb the Leafe, under which the
Defendant claimed, was void. This Cafe was Learnedly Argu-
ed by Common Lawyers, and alfb by Civilians, and the Judges in-
clined to be of Opinion for the Plaintiff. But the Defendant per-
ceiving this, preferred his Bill in Chancery and there obtained a
Decree agalnft Lxchmere,
(18.) If a raecr Lay-perfbn^ who is altogether incapable of a
Benefice, be Prefented, Inftituted, and Inducted ; yet the Church
is not therefore faid by the Common Law to be void, as if no Pre-
-Tentation had been, but is flill by that Law full of an Incumbent dc
faBo^ licet non de jure, until by Sentence Declaratory in the Eccle-
fiaftical Court for want of Capacity the Church be Adjudged void;
and upon this no Lapfe fhall incur againft the Lay. Patron, without
Notice (of fuch Incapacity and Sentence of Deprivation thereup-
on) to him given. King H. 4. Prefented one that was Incapable of
his Prefentation, and the Prefentee was thereby Admitted, InfU-
tuted, and Indiwfted, and afterward the Pope enabled the Prefentee
Boderidge by his Bull ; yet the King had a Scire facias, and thereby recovered
Left '^j^'^-'^^^' his Prefentation again , becaufe the Incumbent was not capable
when he was Prefented.
(^19.) If the Parfon or other Incumbent be Excommunicate, and
he fb remainethinhls Obftinacy for the fpace of 40 days, he is for
' this defrivahle of his Benefice, and yet the Church is not void in
Deed, without Sentence of Deprivation given againft him ', and if
before fiicb Deprivation, the King as Supream Ordinary grant him
a
\
Of Deprivation. 315
a Difpenlatlon, he fhall hold his Benefice. Alfb Dilapidations, or
fpoil ofthe Chureh Benefice hath at Common Law been held wor- I>«icr»S<*c, ib.
thy of Deprivations j which Law as it adjudgeth not the Church
a(^uall/ void ('Death excepted^ without a Sentence of Depriva-
tion : So though fiich Sentence of Deprivation be meerly wrong-
ful, yet by that Law, as well as by the Canon, the Dignity is void,
and the Sentence remaineih in force until it be reverfed by Appeal^
and therefore if the party deprived within due time Appeal f upon,
fiich Sentenceof Deprivation given againft hira) fuch is thenaturc
thereof , that it will hold the Sentence (upon which it was firfl:
brought) in (ufpence : So that if it be brought upon Deprivation,it
voideth the vigour thereof, and revlveth the former dignity ; for
fiich Church (hall not be void until the firft Sentence of Depriva-
tion happen to be affirmed in the Appeal. Touching Deprivation
by Statutes and Pofitive Laws, vid, i ^ £//^. c. li.z6H, 8. C4p.|.
revived by I Eliz,. cap. :} i. or 3.
F f f CHAP.
3X6
CHAP. XXVIII.
Of Incumbents 5 as, alfo of Refidencc
a?i(l Non'RefiJencc
I . Ifi<:umbenr, jvho properlj fuch ; v>hy fo called^ and -what
thikgs preparatory to a Coftpleat Incumbent.
a. The Rights of a Compleat Incumbent.
3. The Rights of an Incumbent's Executor as to the Glehe.
4. The Refident Incumbents duty^ that kseps^ a Curate.
5. Whether he be an Incumbent, 7i'^(? is inby theKin<rs Prefenta-
tion, vjhere the King mi(lakes his Title.
6. Whether an Incumbent may plead {as fuch") -who ivusnet In-
cumbent anteimpetrationcm Brevis.
7. H'^heth§r the Non-Refi(kncy of an Incumbent v/erepunijiiable
by the High-Commijjloners.
8. How the 80 daies ab fence in a year Jfjall beunderfioodio in-
clude Non-Refidcncy, according the Statute^ d^c.
9. The Laws in force concerning Reiidcnce <7w^ Non-Refidencej
and who are cfualified for Non-Refidence.
I o. The Canon in the Protnnctal Conftitutions touchino- the NoRr
Refidence of Vicars on their Vicarages.
I I. The Form of the Oath of Refidcnce on a Vicarage.
12. Whether a Far [on inhabiting in a Mejjuage very nigh ad-*
joyningtothe Tarfonage Hcuje, which he keeps alfo tn his
own hands, be a Refidcnt within the intent of the Statute.
1 1 . What the Law requires for Rciidence; «»// what are thejujt
Caufes of Non- Refidcnce.
1 4. ^n Incumbent /ands charged with the Arrearges of a Ten-
fion, iJJUmg^ out of his Church, that were behind m his
Predecefors time , as v^ell as thofe accruing in his own
time. ^
1 5". The Ccnfiitution touching the Oath ofRtCidencc^as alfo how
the Incumbent may be out of bis Parijh; andyet be reputed as
Refident.
1 6. VVharfhall be accounted fuch an Ab fence or Non-Refidence
within the Statute, as to avoid a Leafe made by the Incum-
bent.
1 7. IndiBment again H a Common Informer,exhibttinganInfor''
mat ion again ft Two Perfonsy one for Non-Re]]dencc; r^t o-
ther for taking a Farm.
18. Co.
0/ Incumbents, Sec. 517
1 8. Covenants as well as Leajes., made 'void by the sntent of the
Statute of 1 3 & 14 Eliz. by reafon of Eighty dates Ab-
fence.
on L
(i-) "Tf Ncumbsnt, from incumhere (fignlfylng^ as well topoffefs
I and keep fafely, as to endeavour earneftly) is a Clerk
JL duly Pofleftof, and Refident on his Benefice with Cure.
(a) For the faithful discharge whereof he is to imploy his Study and f ^^'
utmoft endeavour: (^) For which reafon efpecially he is fo deno- Ji ^,'/h '^ ,,
minated. There are Four things preparatory to the bein^ of a
Compleat Incumbent : (i.) The Patron's Presentation, or his free
Gift or Commendation of his Clerk to the Parfbnage or Vicarage
by writing in his favour to the Bifliop. (z.) The Blihops Adraif-
lion of (uch Clerk by his allowance or approbation of him after due
Examination, and by making a Record of his Name accordingly.
(^.) The Clerks Inltlruiion to fuch Benefice or Vicarage by the
Bifhops word, htfiitm te, &c. (4.) The Clerk's Admiifioa or
Indu£lIon, whereby he is put in a6lual pofl^ffion thereof by the
Archdeacon'sjOr others delivery to him of the Ring or Keys of the
Church-door, ringing the Bells, &c. And until tbele things be done,
he is not a Compleat Incumbent, (c) After which, and poffeliion ft-; Art Cle.
Six months, there is fuch a Plenarty as gives fuch a Title to that ch. 1 3,14 H. 7.
Prefentation, as will barr fro hac 'vice any others in a Quare Im- ^^ ^7^*' 3 2-^-
fedit. (d) So that thole things that arc to make a perfect Incumbent S°' ^-^^j^-^^-
(after Prefentation had) do depend upon the duty of the Ordi- 5 . & Keiw'
nary; as (l.) Admiffion, which requireth Examination of the 8 3. Co. 4. 79.
Clerk; whereupon fbmetimes enfueth refufal, and thereupon either 7- 3 8. on Lite.
Notice or no Notice (as the cafe requires) is to be given to the H4«
Patron, (i.) Inflitution, (9.) Induftion. Upon the Patrons not
Prefenting within the time limited, the Lapfe incurrstothe BIfhop,
from him to the Metropolitan, and from him to the Crown, where
it refleth. But if the BIfhop take his time, then is his Pre-
fentation a Collation, .ind In the Right of the Patron him-
felf
(z.) The Incumbent is that perfbn In Law, to whom the Fruits
of any Ecclefiaftical Benefice do belong, infbmuch that the Fruits
taken during the vacation or vacancy of a Benefice, fhall be reftored
to the next Incumbent, (e) who flands charged to the King for the /^^ sc i8 H 8
Fir fl- Fruits, to be accounted Immediately from and after the avoid- c. \\\
anceor Vacancy of any fuch Benefice or Spiritual promotion (/),
and for that end, and towards the payment of thefaid Firfl-Fruirs;C/)^bid.
the next Incumbent (hall have areflitution of the Tithes,Fruits,Ob-
lations, Obventions, Emoluments, Commodities, Advantages, rents,
and all other revenues,Cafualties,and Profits whatfoever, certain, &
F f f 2 uncertain
3 1 8 Of Incumbent, as alfo
uncertain, belonging to any Archdeaconry, Deanry, Prebend, Par-
fonage, Vicarage, Hofpital, Wardcn{hip,Provoftniip,or other Spi-
ritual promotion, Benefice, Dignity, or Office, growing or arifing
(z) Stat. Ibid, during the vacancy of any of the laid Spiritual promotions ; (g)
& Coke pla. and every Archblfhop, Bilhop, Archdeacon, Ordinary or any other
(o. 3d 8. perfon, having to his or their ufes received the f.ime, that fhall
refufc to render and rellore the iame to the next Incumb.eiir, (hall
'• -f? forfeit the treble value of what he hath fo received (/?)►
'' -^'^^ ' C^.j If any Incumbent happen to depart this life during the
Incumbency or Plenarty, fhall before his death have cauled any of
his Glebe-Lands to be manured and (owed at his proper colt and
charges with any Corn or Grain,he may In that cafe make his Lift
Will and Teftament of all the profits of the Corn growing upon
6) Ibid 2.1 H. ^^'^^ ^^'"^ Glebe-Lands by him lb manured and fbwn. (/) And if
6. fo. 20.34. H. one be put into a Place ; then removed, and another put in, the
6I0. 38. firft fhall have the Tithe hapning in fuch Vacancy ; (^) for the
<'^) Hill. 1 8-J«C'fucceedIngParfbn (hall have the Tithes hapning during the Va-
PVitJi- Gaje. cancy, dedu6ling the charges of collecting the lame, and lerving
the Cure during fuch Vacancy. Alio if an Incumbent be renroved
in a Quare ImpeJity the Plaintiff fhall not have the main profits. (/)
(/; Pe»- Co. ^j^j ^^ Incumbent being in by Ufurpation, he cannot be removed
Mich, izjac , ^, ^ j ^ /V/^N
B R Cafe. ^^^ ^y ^ Klf^^^ Imfedit (jn).
Grain'Tc and (4O An Incumbent Refident that keeps a Curate , h obliged
Howlett. to read the Common Prayers in his Parifh Church once a month in
Rolk Rep, his own perfbn, on pain of forfeiting Fiv^e pounds for every omifli-
i?the Kin" {'y.^ InThomJot*^ C^:, where T. Libelled for Dilapidations
verf. Bifhop of againlt the Executors of his Predeceflbrs, and Heiiden moved for a
j^orvoich. Prohibition; for that, that 71 is not Incumbent, for his Prefentatlon
{n) St. i4.C*r. ^22 by the King ratione Mimritatis of one C. and the King had not
"• '^' ^^ any luch Title to Prefent : for where the King miilakes his Title
the Prefentatlon Is void, and he is no Incumbent 6. Rep. 16. Green s
Cafe. And Sir Tho. Gaivdfs Cafe, where the King prefented jure
Trarogat. when he had another Title, and the prefent action was
adjudged voidj and whether he is Incumbent or not, that fhall be
tried. But by the Court a Prohibition was denied, becaufe that
be was now Incumbent; And the Judges would not take notice of
the ill Prefentatlon of the King: But in cale of Simony the Statute
makes the Church void, and then the Judges may take notice of
•that, and grant a Prohibition,ifthe Parfbn lues for Tithes. But if a
Quare Impedit be brought, & it appears that the King had not caiile
-of Prefentatlon, then a Prohibition may be granted i which was
. 4ilfb granted by all the otker Juftices. Mich.^. Car. C. B. Thomfbn j
(6.) In
0/Refidence and Non-Refidence. 3 1^
{6.) In Dame Chkhhys Cafe againft the Bifhop of £/;' it w^s
faid by Henden, That an Incumbent by the Sratyteof 25- £<?f.5.c.7.
cannot plead (tjuatenHs fuchj unlei^hebe Incumbent anie (ikmim'
tetratioms Bre'vis, unlefs he be Incumbent fendente lite he cannot
plead, &c. //«r/cw, if one be Prefented, Inftituted, and Admitted
.before the Writ, and Inducted after, and before his Pleader, he may
plead well (i-). r 1 tt. . /r- Co) Pa{^h. ?,
(7.) A Libel was againft H^ Vjcar of ,5 .in the High Coramiffion- car. C. p. ia
^ourt at 2i/ri, becaule that hg w^snot Refidtnt^ but lived at Don- ^i*^' <?^f?- ,
.^after, and negleaedto ferve his Cure; and that divers times he, ?!"fK^'\
when the High Court vlfited, fpoke fo loud, that he was offenfive '^^ ^^ ^ ^^
to many, and being reproved for that, he gave a Scornfvl Anrwer<:
and that there was one Mvj^i'^ inthe Pariih, who ha^d a Seat,intl:i€
Church, and that the Vicar would fpit in abundance into the faid
Seat, and that when Wright and his Wife were there. And th^t4ii
his Sermon he made Jefts, and faid. That Chrifi Tvas laid m ^Man-
ger^hecaiifehe had no mony to take up a Clamber, bttt that -was the
Jinavery of the Irw-keeper ; he being then in contention witl; an
Inn-keeper iia the Parifh. And that in time of Divine Service h^
thruft open the door of Wright\ Seat, and faid. That he and his
Wife would fit there, in difturbance of Divine Service. And fo;r
that a Prohibition was prayed and granted; for the High Commif-
fion cannot p'jnifh Non-Re fidency, nor breaking the Seat in Divine
Service; And the other were things, for which he (hall be bound
to the cTood behaviour ; and the Complaint ought to be to the Or-
dinary (pj. - - C?) tJowfon'i
(8.) Note, by Tanfield^ that by the Statute of i 3 Eltz.cap.io. Cafe,
of Nm-Kefiden'cy, That if the Parfon be Abfcnt So days in a year, Hetl. Rep.
although it be atfeveral times (^72:,.) ten days at one tli^e, and ^]^ J^^J^^^'
twenty dales at another time, until eighty daies,&c. 1 hat is within y^,,^^^ ,y^^_
the Statute, by which it hath been adjudged (q). ^ fime not above
(q ) The per-fonal R&(idenc€ of allEccleGaftJGal perfons on their 80 daies m a
Cures refoeaively is a duty fo incumbent on them for the better 7/^^'' ^f^f^ePar^
difcharge of their Sacred Fundion, the preveation of Dilapidations ^;"^;;^^^'^''^^'«
and tht maintenance of Hofpitality , that Jt^ enaad, That (^^ ^^^^^^
every Spiritual perfon promoted to any Archdeaconry, Deanry^ or verf. calwr.
Dignity in any Chuvcli Cathedral or Collegiate, or Beneficed with Noy'sRep,
any Parlbnage.Qr Vicarge, ftall be perfonally refident and abiding
in, at, or upon fuch Dignity, Prebend, or Benefice, or one of them
at'thelealt; and that if any fuch perfon wilfully Abfent himfelf
from his faid Benefice, ^c. by ^he.fpace of a Month at onetime, or
X Months at feveral times in any one year, to be accounted at feve-
■ral times, thatfuch perfon fo abfenting ihall forfeit ten pounds for ^^>j 5^ ^^ j^ g^
^.very (uch d^fquk. (r) It is alfo further provided, That the Parfoncap. 1 3,
320 0/ IncumbentS5 as a/fo
•or Vicar ftiall be Refident in and upon his Parfbnage or Vicargc-
Houfe {{[he have any) and not at any other Houfe in theParifh;
but if he hath no Houfe on his Glebe, or be removed withou fraud
for his Health, or without fraud Imprifbned, or be beyond Sea in
his Majefties ftrvice, or without fraud abide in any Univerfi ty with-
in this Realm to ftudy,or be aChaplain qualified forPlurality by the
Statute of 1 1 H.8, either of thefe may excu(e his Non-Reiidence for
(j) Co. (5. 2i.b. fhe time, (j) Alfe the King may give a Licenfeto any of his own
(OiiH. 8. Chaplains to be Non-Keftdent: (f)*And any Ecclefiaftical perfon
cap. 1 J. may be Non-Refident for fuch time as without fraud he is attending
a Suit in Chancery. There are alfo other Chaplains of other perlbns
(«) 15 H. 8. ti^jat are qualified for NoTfReJidence , («) which for brevities fake
33 H 8 c 28 ^^^^^^^ ^^^^^^- And where a Chaplain is qualified in refpc(5l of
2 1 H. 8. c. 1 3.^'^ fervice for Plurality, if his Lord die, or be Attainted , or be rc-
Vid. Parf. moved from his place, it will not, it feems, fuffice that he be Refi-
CouTif. p. I. fJent only upon one of his Livings, without the King's Special Li-
T^'c^ cenfe with a Non oh H ante {x).
g^ '^' (i^O') The Canon made by Cardinal Otho^ and afterwards Con-
firmed and de novo EftabliiTied by Otbohon jfeems very fevere as to
Vicars in cafe of Non-Refidence\ for in their conftitutions it is Or-
dained, That if any Non-Kef ^ent (hiW receive the profits or F'ruics
of a Vicarage, he (hall reftore the one Moity thereof to the Church,
one half of the other Moity to the Poor of that Parifh, and the reft
to the Archdeacon of the place, if he difcharge his duty in making
a diligent Enquiry yearly herein,and fhall forthwith make it known
to the Bifhop ; and whoever fhall difobey the Premiflcs by one
Month, fhall alfb be deprived of his other Beneficesjif he have any,
and be rendred Incapable of ever having that Vicarage again, or
any other Benefice for Three years : And in cafe the Archdeacon
ihall negledl what herein is enjoyned him, he fhall be deprived of
that part allotted him as aforefaid, and fufpended ab ingrejfu Ec-
■clejia. Confiit. Othobon. de Refidentia Vicariorum.
( 1 1 .) The Oath of E efidence on a Vicarage is as followeth,^'iai.
Ego A. B. jttroy Quod ero Refidens in Vicar ia mta^ nifi alittr difpen-
fatitm f Merit d Dioecefano meo. What Spiritual pcrfbns may be di(^
charged of Reftdence, and by what means, vid. St. 11 H.Z. i g.
(12.) In an Information upon the Statute of ^I H.i.cap.i 3. of
Hill. 8 Jac. Non-Rejidencyy it was found by Special Verdl(5l, That Dr. N. was
veT[°V)r"NeW' Ific^mbent, invefledin the Re6iory of 5. and that he was alfb feizcd
man Brownl. of a Houfe in S. aforefaid, fituate within twenty yards of the Re-
pa. 2. 6lory, and that the manfion- houfe of the ft id ReiSVory was in good
Repair, and that Dr. N. held that in his hands and occupation with
his own proper Goods, and did not Lett it to any other, and that he
inhabited in the faid Mefluage, and not in the Parfbnage. The
Statute
Of Refidence and Non-Refidence. 52 1
Statute of 1 1 H. 8, caj>. i 5. provides, That every Parfbn promoted!'
to anj Parfonage, (hall bePeribnaliy refident, and abiding in, at,i
and upon the faid Benefice : And in cafe any fuch Spiritual Parfbnt
keep not Refidence at his Benefi.ce, as afore^id, but Abfenthimfelf
wilfully by the fpace of a Month together, or two Months, to be
accounted at leveral times in any one year, and makes his Refidence-
or abiding in any other places by fuch time, that then he fhall for-
feit for tvery fuch default Ten pounds, the one half to the King ,
the other half CO the Informer. The Queftion was^ Whether the
faid Dr.iV. were Non-ReJide»t,znd incurred the Penalty of thisSta^-
tute? It was Argued by Houghtcv^ that he h?.d incurred the penalty
of the Statute, and was Non-Kejident within the intent thereof^ he.
/aid, that to (ome intent all the Parilh may be iaid the Benefice of
the Parfbn, for that he hath Benefit out ©t ir, and he is called Par-
Ion of fuch a Town or Parifli ; but this is not the Benefice that the
5^11 ut J intends, upon which he ought to be Refident, (^c. Alio he
ftid, That there were Seven caufcs of making the laid Statute,
whereof but two are to our purpole ; the one is Hofptality ^ the
other Relief o? the Poor, and.ihefeare to be done in the Parfonage
houfe, for this is the Free Alms of the Church: and fb it was Ad-
judg'd, ^4 EIjz,. B.R. Broom and Hudfon'y and 40 'Elm. B.R. b&-
twe( n Butler and Goodal. Coke xl.L That he ought to be Refident
upon the Purfonage-houfe, and not elfewere; and he agreed, Thatr
Imprifbnment without deceit, and ficknefs, are good Excufe. For
the Defi^ndant, Barker Serjeant argued, That it appears by the Spe- , --^
cial Verdi6t,thatDr.Ni heldtheParlbnage-houfein his own handf^
and did not Lett it; whence he Inferr'd, That his Servants were
Refident upon it, &fc. and that by the Council of Lateran all the
Paiifh is made the Benefice of the Parlbn, dec. alfo that before
-the faid Statute every Spiritual man was obliged and compellable
by the Ecclefiaftical Law to be Refident; yet if he were in the
Kings Service, or an Officer of the Chancery, he (hould be excufed,
as appears in the Regifier,fo, 5 r. b. though that he W€re Dean, the
which Office meerly requires his Perfcnal Refidence, as it is. there
(aid.. Th'&Cafe was compounded by the Lord Coke,but he intend-
ed this was vo Refidence within the Statute, for this was not his Be-
nefice, but the Tenantspart of that,ashc faid, hath been Adjudged
into the EJcclicquer.. ^v- : ;;!);;;;;■ :-•' ■■ ■.
(l 2. ) In Butler and Goodal' s Cafe, it was Refblvcd. upon the ViU More's
Stature of 1 1 H. 8. That a Parfbn lof a Church ought to flay and Rep.
be commorant upon his Re£l:ory (viz,.) upon the Parfonage- Co. 5-. Butler
houfe, and not In any other Houle, although it be within the. Parilh, and Gw<^/j/'s
but lawful Jmprifbnment without Covin, is a good caule of Non- j, ^ '^°'
Refidence: Alio, if there be no Parfbn age-houle (ias, impotentut
excujat
322 Of Incumbents, as a/fo
excufat Le^eni) alio Sickncls without fraud, if the Patienr remove
by advice of his Counfel in Phificlc, hfia fide^ for better Air and
recovery of his health. The Statute is intended not only for fer*
ving the Cure, but alfb for maintaining* the habitation of the Par-
fon, for him and his Succeflbrs, and for HofJ3itality.F/</.0.5./>^.ai.
^ Cro.par. i.
^ (i4«) Ii^ Ehe Gafe between Trinity Colledge and Tunfiall it was
Refblv'ed, That In Annuity by Prefcription for a Pcnfion ifluing
out of the Cliurch lay againft the Incumbent, as well for the Ar-
rerages due in the time of his PredecefTor, as in his own time ;
for that the Church it (elf is charged with it in whole hands foever
it comes.
(i5-.)By Cardinal Qf-60'3 Conftitution \_De InBitutione Ficaris-
rum] It is Ordained, That none fhall Wc admitted to a Vicarage,
unlels he firll take his Oath, that he will have his perfonal and con^
ftant Refidence thereon j otherwife his Inftitution thereto to be null
and void, and the Vicarage to be conferred on another. Conji: O-
thon. de Inftit. Vicarior. From which'Canon the GIols thereon doth
raifethis Queftion, viz,. Whether a Vicar not having pofliblyany
Dwelling - houfe yet built for his habitation in the Parish, and
living- for that reafbn in fome neighbour-place , and at another
man's Table out of his Parifli, may according to the Oath afore-
faid enjoyned by the faid Canon, be (aid to be refident ? where the
Queition though argued in the Negative, yet is Refolved in the
Affirmative ; and that he fhall be reputed as Refident, if he be (b
nigh fituate to his Parifh, that the Inhabitants thereof may con?-
veniently have acceft to him, as oft as the Parilhioners have need of
his Miniftry, and (b as on all requifitions he be ready to adminiftcr
the Sacraments within the Parifh ; for in coufl:ru6lion of Law, he
IS faid to make his refidence fufficiently there or in that place, where
he doth di(charge his work and duty, albeit he lives cl(e where: L.
cumquidaMfacit.ff'.defun. i»/?r«<^. Likewi(e, the Law in requiring
(uch Rdfidence aims as well at Hofpitality as at the dicharge of the
Miniliry. Al(b, he that is Abfent only about the affairs of the
Church, is repwted in Law as Prc(ent and Relident .- Al(b the Bi-
{hopmay di^en(c with his Non-refidence notwithftanding fuch
Oath aforefaid : Glo. in ver- Refidentiam. diU, Confi. Otho. Yea, he
may al(b be (bmetimes Ab(ent,not only uponneccffary, but alio up-
on his Family-occafions, with Licenie from the Bifhop, as alio for
his Recreation, where it is for recovery of his health, or prevention
of Sicknefs. Glef. ihid*
( 1 6.) In an h&ion upon the Cafe, for a Promile ; upon a Non
fijjiimfjit pleadedja SfeeialVerdtB was found, upon which the Cafe
appeared to be this : l^he Defendant by Indenture did Demife unto
the
Of Refidence andNon Refidence: 325
the Plaintifl all his Tithe of Corn and Hay, and the Agreement
between them was this, the Plaintiff (hould pay him for the Tithe Pafch. 7- J^c.
fifty five fhlUings, and this by agreement was to be paid at a day B. R. shepherd
certain, then following : The Defendant having this Tithe, pafled ^^\^' ^"*^^-
the ftme in this manner to the Plaintiff, and upon this Agreement -^j. / ^*
and promife, being not performed, the Plaintiff brought his A<9:ion.
It was found, that the Defendant confeffed the Agreement to be
(b, but in Bar he pleaded the Statute of ]^ 3 Eliz. cap. 20. and of
14 Eliz,, cap. II. for the avoiding Leafes made by a Parfon, by
bis Ab(ence from his Living by the Ipacc of eighty dales in one
year, and alfo (hews that one S fallow who was Parfon of Shar-
rington, to whom thefe Tithes did belong (and in whofe Right the
Defendant claimed them) was Abfcnt from his Parfbnage by the
fpace of eighty dates in one year^ and (hews in what year, and {o by
this his interelt determined, and Agreement with the Plaintiff, by
this made void; but they found further (as the Plaintiff' made it to
appear) That Stalloiv the Parfon of Sharrington was not Abfent in
manner as it was aliedged, for that they found, that he did dwell
in another Town adjoyning, but that he came conffantly to his
Parifh'Church, and there read Divine Service, and lb went away
again : They did alfb find that he had a Parfbnage-Houfe in Shar-
rinton fit for his habitation ; and whether this were an Abfence
within the Statute, as to avoid his Leafe, they left that to the
Judgment of the Court. Tel'verton Juftice, This is a good Non-
Rejidency within the Statute of ax H.S.cap.l^. but not an Abfence
to avoid a Lapfe made within the Statute of iq Eliz,. cap. 20. It
cannot be faid here in this Cafe, that he was Abfent, for became
four daies in every week, and in his Parifh-Church did read Di-
vine Service. VVtlliams Juftice, upon the Statute of i 3 and 14E-
liz.. the Parfon ought not to be Abfent from his Church eighty
daies together in one yearf^ ReUoriafua'j ) but this is not fb here,
for he came to his Church, and read Divine Service there every
Sunday^ l^f^ednefday, Friday, and Saturday, and therefore clearly
this Cannot be fuch an Abfence, within the icope and intention of
thefe Statutes, as thereby to avoid his Leafe. Yelverton Juftice, he
ought to be Abfent eighty daies together^ per fpatium de OttoginU
diehus d^ ultray and this to he altogether at one time,2ind Co the fame
ought to have been laid exprefly, the which is not fb done here,
for that it appears here, that he was at his Parfbnage-houfe, and
did read Prayers every Sunday, Wedmfday, Friday, and Saturday;
and fb the whole Court were clear of Opinion, that this Abfence
here as the fame appeared to be, -was not fuch an Abfence by the
fpace of Eighty daies in one year, to avoid his Leafe within the faid
Statute, and fo the Defendants Plea in Bar not good, and
G g g there-
324
Of Incumbents, as alfo
Mich. lo.Jac.
B.R. f. S. a-
gaind Martyn
and Gunnjf-
fione. Bulftr.
par. 2.
Tt'm. 1 + Jac.
R R. RW^*
verf.. Thomas
Bulih-. par. j .
therefore by the Rule of the Court Judgment was cntred for the
Plaintiff.
(ly.) An Information was Exhibited againft Two Parfons by
y.S. upon the Statute of u H. 8. cep. I 5. againft one of them for
Non-Re ftdency^ and againft the other for taking of a Fafm ; the
one o^ them pleaded Sickneft-, and that by the Advice of his Phv-
ficians he remsved into better Air, for Recovery of his health ;
and this is juftihable by the whole Court : ^id. more for this Coke
6. par. ft. 21. in Butler and GoodaWs Cafe. The other pleaded,
That he took the Farm for the maintenance of his Houfe and Fa-
raily ; and this alfo is juftified by the Opinion of the whole ■
Court.^ Crook moved the Court for the Defendants, That the
Plaintiff was a Common Informer, and thdt he did prefer this In-
formation againft them, only for their vexation, and Co to draw
them to compound with him, as formerly he hath done fo by o-
thcrs, for which they profecuced an Indiament in the Country ,
upon the Statute of 1 8 Eltz.. cap. 5. made to punifh common in-
formers for their Abu<^s. The whole Court did advife them to
profecute this Indiament againft him. Crock moved for the De-
fendants, That in regard the Informer is a man of no means, that
the Court would order him to put in fufficient Sureties to anfwer
Cofts, if the matter went againft him , and then the Defcn-
ciants would prefently anfwer the Information. Wtlltaws]xi{[[cc,
nullam habemus legem^ this is not to be done ^ bur the Rule of the
Court was, Th;it the Defendants fhould not anfwer the Informa-
tion, until the Informer appeared in pcrfonv
(18.) In an Aaion of Covenant the Plaintiff Jn his Declara-
tion fet forth, that the Defendant was Parfon of D. and did Co-
venant ,.That the Plaintiff fliould have Hs Tithes of certain
Lands for thirteen years; and that afterwards he Refigned, and
another Parfon Induced , by which means he was oufted of his
Tithes, and for this caufe the Aftion brought. The Defendant
pleads \n Bar the Statutes of 13 Elix.. cap. 20. and i^EUz,.
cap. 11 for Non-Kefidencj, upon which Plea the Plaintiff de-
niurrd in Law. k was urged for the Plaintiff, That the Plea
in Bar was nai good, becaufe it is not averred, that the Defen-
<iant had been Abfent from his Parfonage by the fpace of Eighty
daks in a y^nr, for otherwife the Covenant is not void by°the
Statutes.. For the Defendant It was alledged, That the pleading
of the Statute of 13 EUz. is idle, but by the Statute of iA.Elit
this Covenant is made void, for by the Statute , all Covenants
fmllbeallone with Leafes, made by fuch Parfons: and in this
cafe, if; this had been, a Leale, this had beenclearly void by Sur-
render.of the Parfon: j and fo in cafe of a Covenant. D^^^m^^^
and
UJ Rciidcncc and Non-Rcfidcncc 325
%vid Houghton ]u^K^s, The Statutes of ig and 14 £/;z,* do not
meddle with Allurances at the Common Law, nor intended to
make any Leafes void, which were void at the Common Law ;
and therefore this Covenant here \s not made void by the Statute,'
unlefs he be Abfent Eighty daies from his Parfonage. Coke Chief
Juttice agreed with them herein. They all agreed in this afe for
the Plaintiff, and that by the Preamble of 14 EUz», it is (hewed
the intent of the Statute to be to make Covenants void, within the
Provifion of 1 3 Eliz,. by Abfcnce for Eighty daies : And Judgment
in this Cafe was given for the Plaintiff.
G g g z CHAP.
326
?5W«BB»>"WBW
1
CHAP. XXIX.
Of Abbots and Abhies-^ alfo of Chauntries^
and of the Court of Augmentations,
1. Abbot, v;hat; ^wiy fo called; the fever al kinds thereof -, and
hew many anciently in England.
2. j4 famous Abbot anciently in Ireland : The wanner of their
Election frefcrthedby the £/»/»ertf «r Juftinlan : Anciently the
Peers ef France -were frequently Abbots.
3. The ancient Law of King Knute concerning Abbots.
4. The Abbot, with the Monksy making a Covent, -were a Cor-
poration.
5*. Abbots o/^ere either EUBi've or Prefentative; they were Lords
of Parliament: How many Abbies in England, and which the
moft Ancient y bounded by King Ethelbert.
6. Chaunter and Chauntries, -what, and whence fo called \ their
ufe and end; 47 belonging anciently to St. V.\uhin London j
whm and by what Laws their Revenues were veftedin the
Crown.
7 . Before King John's time Abbot s anji Priors were Prefentative,
afterwards Elective.
8. Six differences taken andRefolved on in a Cafe at Law touch-
ing Chauntries.
9. Certain Cafes in Law touching Lands.whether under pretence
of ChmmuQS given by the Statute to the King, or not.
lo.VVhat the Court of Augmetation 5^/^/, the end and ufe
thereof, when Ereaed, how Eftablijhed, andby whomDif
^^'^ \ ^^^and Abbas haveone& the fame fignificatIon,there-
UA fore Abbots are C2.\kdPatr€S.c.ult.de. Regular. TufcL
^ .^ ^ ^'^»<^^^-Z'^^-7'^^'^^ e'^^htrzn Hebrew ox Syriack^Nord,
^gMymg Pater with the Greeks and Latmsy from the two firft
Hebrew Elements or Letters, Alefh and Beth inverted^ which Name
MarfiJ. tbe Monkshrft affuraed at their Original in Syria and Ezypt. And
^^^ although now in this Kingdom we know no more of this word
L rty.u A/u^^''^ ,^^"^' .'^'''°^' yet for his Antiquities fake
toe hath the Alphabetical precedence in the Index of this Abridg-
ment,
Of Abbots and Abkies, as aljo of Chauntries^ &c. 527
ment, whether he be Archimandrita, NovelConjt.ii^. or Cosnobi-
arcba^ or Archimonachus.Hottcm. in ver. Feuda, Marjil.colum. de
Ecclefs.r€dit.c.i^.nu.^j6. whether Miter d, and thereby exempt
from the Diocefan's Jurirdl6lion, as having within their own Pre-
cin6ls Epifcopal Authority in themfelves, and being Lords in Par-
liament, whence called Abbots Sovereign, 9 R. %.c.^ Or not Mi-
ter d^ but fubjedt to the Diocelan in all Spiritual Government, c.
Monafieria. 1 8.^.2.c. AbbaSf & c. Vtfaandi, cum 4./^^. ibtd.Omnes
i6.<j.j.&c. cum Venerabilis. Extra, de Relig. Dow. 'vid. StoW,
Ann. p. 441. So called Abbas, becaufe he is Pater Monacborum,
Januen. infito Catbol. glo. Jo. Andr. de Refcript. c i.verb. Abbates,
in Clem.c^ Coke dejure Ecclejiafi.fo. i8. and hath the chief go-
vernment of a Religious Houft, and who with the Monks makes
a Covcnt. Of thefe Abbots , together with two or three Priors
there were heretofore in England about the number of Thirty in
all. What Conlecration is to a Bifliop, that Beriedi61:ion is to an
Abbot, but in divers refpe6ls ; for a Bifhop is not properly fuch
until Conlecration, but an Abbot being Ele61:ed and Confirmed,
is properly fuch before Ben«di6lion. caj>. de SupL mgLVral.lib. i.
d^ 10. Clem.S. Statttimus, de Stat. Monacb. in Clem. d^ cap. Me-
minimuSf de Accufat.
(2. j The Venerable Mr.Bede fpeaks of an Ifland in Ireland which
ever had an Abbot veiled with fuch power and Authority , that
every Province, yea, and the Bifhops themfelves were under his
Government, and fubje6l to this Juriidi61:on: Beda lib. 3 . de Geflis,
cap. T^.Spelm. dePriw. Ecclef. Angl-Sax. An. 605. ThcEmperour
Juftitiian in the Firft Book of his Codes hath exprefly ordained and
prelcribed the manner and form of the Eledlion and Confirmation
of an Abbot, and what perfbns they ought to be, and how qua-
li£ed, that (hall be accounted worthy of that Ecclefiaftical Digni-
ty. Cl. i.tit.'^.l.&l.^'j. ^o.De Epifc. & Cler. &No'veL ^.cap. 9.
d^ NoveL la^.c. 34. Mr. Blount in his Nomo-Lexicon tzkes notice
of the word £Abbac_/li and faies, it is the lame to an Abbot, as Bi-
nioprick is to a Bilhop, refembliog it to the word Paternity, and
cites a very Ancient Record wherein that word is ufed. v^«.34, C^
35" H. 8. c. 17, 18. Sciant .... ejuod Ego Ifabella Comiti/?, Penb.pro
Salute Anima mea Dedt Deo cr Abbatbia ^eNuttleg. totam Wic-
ham jur.ta dictam Abbathianjyd^c. In thefe latter Ages the Abbots,
through the favour of Princes, and their rerpe6l to the Church,
have been reputed as Peers and Secular Lords, to whom they
granted the Provenues of Abbacies proportionable to fuch Dignity
for the fupport thereof; Thus many of the Peers of France have
very anciently and frequently been Abbots, as appears by Paradine^
who wrote the Annuls of Burgundy nigh 7 hundred years fince ,
and
3 28 Of Abbots and AbbieS:, as aljo ofChauntries,
and then affirmed, that he had feen very Ancient Records, wherein
the Peers o{ France uCed thefe ftyles and diftin£lions,'8^iai. Duke and
Abbot, Earl and Abbot, &c. Guil. Varadin.Annd.Burgund. lib.z.
fub. An. I lo^. cTrat.
( ;.) iNTotwithftanding the ill opinion, which in thefe dales not
without caufe is conceived of the Ancient Abbies, yet it cannot
without fbme breach of charity be well luppoled ; but that fueh
Houfes, commoniy called Religious, were in the primitive and true
intent thereof better purpofed by the Founders, than after pra-
£H(ed by their Inhabitantsj for by the Law made in the dales of
X^.Knute.nu.6, it is evident, what ftridl devotion and blamelefs Con-
verlation the Ancient Princes of this Realm expelled from fuch as
then poflefled thefe Abbies: The Law was i\\\%,'viz,. We "will that
Gods Minijters^the Bijhops, Abbot s,^c. do in a [fecial manner take
a right courfe, and li've according to Rule ; that they call to
Chrifi night & day, much d^ oft, d^ that they do it earnefily: And
•ive Command them, that they hearken to God, &■ love Cbafiity: Full
truly they wit, that it is again^ the Right to meddle withlVomenfor
Luffs fake : Annot. K\<^\.Vieiv,&c. cap. 4. Se5i. 1. Whereby it
"fcems thefe Spiritual Fathers were ru(JDe<Sl;ed of old to incline to the
Flefh all dales of the Week. An Abbot might be preftnted to a
'Ghurch, for he was capable of an Appropriation, whereby he was
perpetual Parfbn Imparfbnee,and had CuramAnimarum.^^ H.6.1 5
(4.) The Abbot, or the chief Head of Abbies, being together.
with the Moiiks of thelame Hou(e, a Coi'tf»/,made a Corporation,
and was not by the Common-Law further charged with his Prc-
deceflbrs A6i-s, than for fuch things as were for the ufe of the
Houfe, or fiich A6t^s as were done under the Common-Seal thereof
(/») Terms {<?j And albeit a Creditor had a Specialty againfl a Monk; yet not
Law, verb. the Abbot, but the Monk's Executors were chargeable for his Debt
yibhot. contra6led before his entry into Religion, unlefs it were for fbmc
Lh) Ibid ^"^^ thing as came to the ufe of the Houfe {b).
( 5" •) O^ fhefe Abbots fomc v/ere Ele^ive, others Prefentativey
and under this Title were comprehended other Corporations Spi-
ritual, as Prior and his Covent, Friers, Canons, and fuch like. And
as there were Lord-Abbots, fb there were alfb Lord-Prlors, who
had exempt Jurifdi61:ion,and were Lords of Parliament; Co. de Jur,
EccUfiafi. fo. l%.a. It is fuppofcd, that the Abbot of St. Aufiins'm
Canterbury was the ancienteft of anyin this Kingdom, Founded by
An. C9i.. King Etbelbert in An^oz. and next to him in Antiquity the Ab-
bot ofFTeJl-minfier^unded by Seabert King of the Wefi-Saxons^
An. 60^. Some diflfercnce there is among Authors touching their
(0 Co. on Number in this Realm, whereof (bme reckon but Twenty Six. Sir
Litt. fo. 97. Ed.C§ke &ys they were Twenty Seven Abbots and Two Priors. (tfj
But
and of the Court of Augmentations. 32^
But a very Modern Writer gives us a Catalogue of no Jefs than
Thirty three Abbots and Pnors ; {d) whereof fome were Priors A- ('^^ Mr. Bkunt
iiens Dorn in trance, Governours of Religious Houfes, ereaed for "^ ^'* ^*"«-
Foreigners here in England, fuppreffcd by Henry the Ftfth after ^'*''
his Conquefts into France,znd their Revenues after given by Henry
the 5m^ to other >MonafterIes and Houfes of Learning, efpecialiy
tor the erecling of King's Colledge in Cambridge and Eston. Stow
Annals, 5-81. i H. ^.c. 7.
{66.)Chaunter [Cantator] A Singer in the Quire. (OAtS-
Davids in Tembrokejlnre, the Chaunter is next to the Bifhop, there ^'^ ^"* ' » ^''
being no Dean. (f)Chaumry IC.ntarta^ ^des facra; tdeo infit- JJf" '^
/«f ^ & dot at a ^radns, ut Mijju tbidem cantaretur pro amma Fun- L.
datorn & Proptn^Homm ejus. Thefe were commonly little Chap-
pels or particular Altars in fome Cathedral or Parochial Church en-
dowed with Lands or other Revenues, for the maintenance of one
or more Priefts, to officiate as aforefaid; whereof mention is made
in certain Statutes in this Realm,, (^j though net tofucK fuperfU-^ff) 37.H.8.
tious ules as aforefaid. A man might make a Cbatmtry by Licenfe^^P- 4-
of the King without the Ordinary, for the Ordinary had nothing * ^**- ^•*^- '^
to do therewith : 9 H. 6, 16. It might be Found in a Cathcdrl ' ^ ^^' '• ••^'
Church, alfo m any other Church : y H.6a j.Roll.Abr.'ver.Cham-
try, Itt. v^. ^ 387. Of thefe Ckauntnes there were (it i'cttr)s) 4.7
belonging to St. PW^ Church in London. (-6; The SuperlHtious
mam ufe and intent of thefe Ckauntnes originally was for prayers ^*^ ^' •^''•f''''^'''
for Souls departed, under a fuppofition of Purgatory, . and of being "'^•^"^•
relcafed thence by Maffes Satisfa»5lory ; and isin y^^^/w's Cafe ,
fo, 1 1 1. mentioned by Sir Hen, Hobart Chief Juflice in the Cafe of"
Fits agamft James, That Prayer for fucb Souls was the general ^
matterof allO/'/fj, Anmverfaries, and the like, which were but
ftveral forms of Prayers for Souls; And (as in the faid Cafe of
pts) if amanglveLandtoaParifh-Prieft to pray, or fay Mafs
tor his Soul i this is within the Law, that is within the Statutes of
p H. 2.C. 4. and i Ed. 6. c. 14. as iris held 1 6 Eltz. Vyer, 527,
tor to this purpofe he is a Souls Prieft, not a Parochial. (0 By , -,
which Statutes all Chauntries, and all their Lands and HeredltaV/i , |';
nients are given to the Crown, and all Lands, Rents, and Profits Cafc Ptts
given to the finding of a Prieft for the Superilltious ends aforefaid^ verf. f'"«'^.
tD continue for ever, are veiled in the aftual poffeflion of tlie King H°b- ^^P-
and of his Heirs and Succeffors for ever; who (hall alfo have by the
laid Statute of i Ed 6. all the Common goods of luch Chaun-
tries, and the Debts thereof fhall be paid to the Kings Trcafurer j
and null alfo have all Lands, and all fuch fums of mony, and part
oftheiiTues of Lands given for the maintenance or for the finding
otagy. Anmverfaries, Obits, Lights, Lamps, ^c. Only the lame
doth.
330 Of Abbots and Abbies -, as alfo of Chauntries,
6.C. 14
doth not extend to fuch Lands, as whereof the Governours of fuch
Colledges as were mentioned therein, or Chauntries, wereleized
to their own ufes, nor to any Lands or Rents given by the King tor
the term of his life only, nor to any Copyhold Lanas ; and all
Rents and yearly profits due to any Patron, Donor, and Founder
of any of i\,^^2:Mhaunmes,&c. and the Right of others (except
,, , ^, the Governoursof Houres)areby the faid Aft faved to them : (k)
f'\ : ^^- All Chaunmes, Colledges, Free-Chappels and Hofpitals, were by
Parliament given to theKing H.8. for 'he^\^'-P"g«?°[^^^%^^'^
againft France and Scotland. Towards the Charges of which Wars
theKing obtained a Grant in Parliament of the fame, with the
Lands tLeto belonging, to be unitedto theCrown :Butdymg be-
fore he took the benefit thereof,heleftthat tofucli of hisMimfters,
who had the managing of Affairs in his SonsMmority; HeyL.
mit. Ecclefpa,, ix. In the Reign of King £^. 6. one ofthegreat
Affairs was the retrieving of a Statute made m the zjth year of
King// 8. by which- all Chauntries, Colledges, Free-Chapels, znd
Hofptals, were permitted to the difpofing of the King for term ot
his life ; but the King dying before he had taken many of themmto
his poffcffion, it was fet on foot again in the ttme of Kmg Ed 6.
and by Parliament daring his Reign it was Enaded, That all Jucb
Colleie,, Free-Chappels, and Chauntnes, as were tn being imtkn
Ft've fears of the prefent Seffion, whuhwere not m the Mmlfof
lenionofthefadlateKwg,&c. other than fuch as by the Kings Conu
mffiomjmild be altered, tranfporfed , and changed, together 'witb
aa Manners, Lands, Tenements, Rents Tithes, Pen fans. Port ions
and other Hereditaments, to the fame belonging, after the Fea(} of
Eafter then next coming, jhouldbe adjudged and deemed, and aljo be
m the ABualand Real pofeffion and Seifin of the King, his Hem
and SuccejJorsfor e^er. And although the H#f^/i,being at that
time 1 10, were not included in this Grant, as they had beenin that
to the Kine deceafed, &c. yet there were 90 Colledges withm the
compals of Chat Grant (thofe in the Univerfities not bemg rec-
konedin that Number) and no fewer than 2374 Free- Chapels and
Chauntries; the Lands whereof were thus conferred upon the
King by Name, but not Intended to be kept together for his beneht
only. In which refped it was very ftrongly infifted on by Arch-
biftop Cr^«^.r, That the diffolving of ^hefe Colledges, Frec-
Chappelsand Chauntries, fliould be deferred unti the King fhould
be ot Agei to the Intent that they might ferve the better to fur-
nifb and maintain his Royal Eftate, than that ^o great a Treafure
(hould beconfumed in his Non-age, as it after was. Thefe Chaun-
tries confifted of Salaries allowed to one or more Pnefts, to (ay
daily MaS for the Souls of their deceafed tounders and_ their
and of the Court of Augmentations. 531
Friends : which not fubfiflmg on themfelves, were generally incor-
porated and united to (bme Parochial, Collegiate, or Cathedral
Church. No fewer than 37 in Number being (as aforeliiid found
and Founded in St. Pauls Free Chappels, though Ordained for the
fame intent, were indeoendent of them/elves, of ftronger Confti-
tution and richer Endowment than the Chantries (everally were.
All which Foundations having in them an admixture of Superlii-
tion(as 'preii.ippofingPurgatorj^ and Prayers to be made for the de-
liverance of the Soul from thencej were therefore now fupprelTed
upon that account. HejL Hifi. Ecckf.m temp Ed.6.pag.^o.^I.
f 7.) Before King Johns time the King and other Founders and
Patrons of Priories and Abbies^ were wont to Prefent Priors and -
Abbots : (I) But by King John there was a Free Eleftion granted \^ ^ ^' "-^-^S-
unto Priors [m). ^ _ (^„,) ix,\i,
C§.) In ^^^Wi and Lambert's Cafe touching C^<7««/n^j thefe
differences were taken : ( i) If one give 20 /. per ammm for the
Finding of a Prieft, and limit to the Prieft i o /. per annum\ all is
given to the King, for therefiduefhall be intended for the finding
of Neceffaries : otherwife it is, if a Condition be annexed to the
Gift, to give 10/. per annum to a Prieft, there the King (hall have
but 10/. ('l) Land of ^o/. per annum, is given to find a Prieft,
with 10/. per annum, thereof, and that the other i o /. O^aJl be to
the Poor, the King fliall have but I o /. But if it be for finding a .
Prieft and maintenance oF Poor men, without limiting how much
the Prieft (hall have, the King ftiali have the Land, for othcrwlfe he
fnali have nothing. (3) If Land of tol. is given for finding
Salary for a Prieft with 10 /. of it, and aUo a good life is limited,
there the King (hall have but 10 /. although the other Ncceflaries .
are to be found for the Prieft, becaufeagood ufe in certain ihall be
preferred before a Superftitious inccrtain ufe ; but it nothing in
certain be limited to the Prieft, the King fliall have the Land.
(4) If Land be given to find a Prieft, the King fluU have it; but
if a Prieft have but a Stipend, the King fhall have but the Stipend,
(f) When a certain Sum is limited to a Prieft, and other good ufes
are alfb limited, which depend upon the Superftitious ufe, all 1^
given to the King. (6) It' all the ufes be Superftitious, of what
certainty foever they are, the Land is given to the King; otherv/ife
it is, if there beany good ufe (»). (h) Co. -4. //-
(9.) The Cafe was whei-e A. devifcd to the Dean and Chapter dams and
of T. 400 /. to the intent to find a Chauntry in their Church per- La'fK-kn's
petually,and an Obitior the Soul of Aandthat the Chauntry-Pneji ^^^^\^ ^''
(hould have 40 Marks yearly; King //.4.gaveL!cenle to the Dean
and ChaDter to purchale divers Land in F.adonera & opera pieta-
tis : In the Will of A^ they purchafcd Houfesin F, and made Or-
H h h dinaricci
332 Of Abbots and Abbies, as aljo of Chauntries.
(»} Mich. 1.
Jac. B. R. Hol-
loway and
iVatknu Cafe.
Cro, par. 2.
if) Pafch. 1 2.
Car. B. R.
Humphrejs &
Knight's Cafe
Cro. par. 3-
^^) Harf and
JS'-f wer's Cafe
Cro. par. 1.
dinances how the Prlcfts (hould be mamtainer], nnd obliged rhem-
lelves & or/tnla. bcnafua ad perform andum; and they employed 8..
for the maintenance of the P.icft, and other Sums for the Ohit :
Refolved, That it was not a Chauntry, either In truth, or in reputa-
tion, within the Intent of the Statute of i Ed. 6. becaufe here are
not any Lands giv^enby J. and his Intent cannot make a C haunt rjy
nor appoint any Lands thereunto, but obliged their Goods for the
payment of an Anniua Sum to a Pneft ; an 1 when no Lands a-e
given, nor employed to that purpofe. It is not reafon they (hould
be given to the Kins; (a).
A Freeman of Londoji Hized of MtlTuages of the value of 9 /.
4 s. ter ann. out of which a Quit-rent of 41 s. per ann. was paid,
6.H.7. devifed the fame to the Parfon and Church wardens of the
Parifh of S. and their Succcff^rs, That the Chureh-wardens aiould
receive the Profits thereof, and therefore (hould find a Chaplaici
for ever, to pay for the Soul of him and his Anceflors and to find
an Jnmvefar); expending yearly on It I 3 J- 4 ^- and the Refidue
of the profits thereof to be expended and employed about the Re-
parations of the Hiid Church ; which were done accordingly. The
Queftion now was. Whether thefe MelTuages were given to the
King by the Statute of i Ed. 6. of Chauntries I It was faid, part
of the Profits were given for a good ufe, and that fliould fave the
Lands: But Refolved, becaufe that was incertain, for It is {fi quid
fuerit) and alfb for that it appearcth , That the Superflitiousufes
and the Quit-rent did amount to the full value of the MefTuages ;
and the value fliall be taken as it was at the time of the making of
the Will, and not to be of any greater value^ chat the faid MelTu-
ages were given to the King by the iaid Statute (;>).
A man deviled twoHoufesin L. to the Church-wardens of 5".
(l) To find an Obit^ and to bellow 5 s. feran7ium upon the fame
Obit, (x.) The refidue of the Profits to Repair the faid Church
of S. and to provide Ornaments in the faid Church. In this Cafe
it was Adjudged, That by the Statute of I Ed.6. no more of the
Land was to the King, than was given to the Oi'/f i and the Devile
to the other ufes of the rcfl was good (^ ).
A Citizen and Freeman of London feized of divers Mefjuages
and Tenements of the yearly value of 30/. 6 s. 8 d. by his Will
before the Statute of i Ed. 6. Devifed the fame to the Corporati-
on of Sktnmrs of London, and that ^t s. 8 d. thereof fhould be em-
ployed upon an Obit, and 1 1 Marks yearly thereof upon the Priefl,
and the refidue to be employed upon poorraen of th? Corporation
decayed by Misfortune, wlto Inhabii' d the faid Mdfuagesand Te-
nements, and appointed thefeid Pcornirn to pray for his Soul, and
iirther with the Profits to repair the MelTuages and Tenements,
and.
and of the C021 1 of Augmentations. 233
and after the Stature of i Ed. 6. was made of Cbauntrks, It was
the opinion of the Court, (i) That Lay -Corporations are ex-
cepted out of the Statute for their Lands, which they have to in* , '
creafe their Treafure for the good of the Corporation, but not for
Lands, wl,ichthey have to employ to Superftitious ufes. (z) Re-
folvcd, That all the mony which was given for the Obit, and the
hnding of a Pricl}, was a Superftitious ufe, and given to the King
by the Statute; but that which was given for the maintenance of
tlie Poor men; and although it was appointed them to pray for his
Soul, which wasa Precept fuitable for that timcjand which was given
for the Reparation of the MefTuages, was not given to the Crown
by the (aid Stature: And Turners Cafe was vouched to be Ad-
judged,where Land was given co theintent,thac his Feoffees fhould
keep an Obit with (b much of the Promts of it as they fhould think
fit in their difcretion, that the Land thereby was not given to the
Crown, but (b much of the yearly Rent as the Feoffees employed
to that purpofe; and if they had employed nothing that way, then
nothing was given to the Crown : hi the principal Ca(eit was Ad-
judged agaiiilt the Queen and Informer. ( r) And in the Cafe be- ("r) The Cnfe of
tween the Queen and Falmerk was faid by Anderfon Chief Juftice, f^^<' Skimcrs »f
That where a Gift is made to' fuftain Poor men and Mafs-Priefls, ^'°"*^P^
without limiting a certain quantity, how much to one ufe, and how
much to the other ufe, there the Queen (hall have the whole Land:
But if the quantity was appointed as to one ufe, and how much to
the other ufe, there the Land is not forfeited, but only fo much as
is employed to the Superffitious ufes (s). (s) Pafdi. ^o,
fio.) In order to thf; better execution of the Prcmiffe?, there ^^^^^
was a Court c(l:abli(hed, commonly called the Court of ^//^w^«/-^- ''^■^"'^^ ^^P'
tions, eredted as a Court of Record, by Authority of Parliament
An.tj H.8. which was to have one Great Seal, and one Privy Seal;
confiding of a Chancellor as the chief and principal Officer thereof,
a Treafurer, Attorney, Sollicitor, Clerk, llflier, and Meffcnger. All
Landsj id^c. belonging to Monaltcries, Priories, and other Religious
Hou(es, anti Purcha(ed Lands were within thefurvey and govern-
ment of tf^is Court ; which (as the Lord Coke fays) could not be
erefted but by Parliament, becaufe a Chancellor and a Court of E-
quity wereconffituted. (i) There were alf() other Minlftevial Offi- /^n q^ j^^^
cers that had relation to this Court; for there were Ten Auditor?, p. ^. ^ap. 1 5-.
called Auditors of the Revenues of the (iiid Augumentarions, and
Seventeen particular Receivers of the (aid' Re venues, (li) This ^^; sj_ j, rj g^
Court of Augmentanons, together with the Court ot General Sur- c. 2.7.
veyers beinc^ repealed, diflolv^ed, cxtinguiPncd, and deiermined by
King H. 8. by his Letters Patents in the gSf/j year of hi^- Reign, a
new Court of Augmentations was erc^led by his Letters Parents;
H h h i v.'h'di
554 ^f ^^^^^'^ ^^^d Abhies, as a/fo of Cbau7itries>
which Repeal and Difiblution thereof was held void in Law,becaufe
they had been erected by Authority of Parliament; For which rea-
fon alfo the new Ereftion of the new Court of Augmentations was
held likewlfe void ; and therefore the faid Letters Patents, as v/eii
for the diflolution of the former, as for the erefting of the later new
Court of Augmentations, were afcer confirmed and ellablifhed by a
Statute ena£ied by King Ed. 6. (x). But afterwards Q^Mary^
(X) St. 7 E. 6. ^(,(.Q,.^j;j^g |.Q t^g power given her for dilTolution of the laid Court,
RXlrlilofthe by A61 of Parliament, did diflolve the fame by her Letters Patents,
Stat. & Coke Dat. I. J an. in prima Regni, and the day next following by other
ubi fupr, c. i6. Letters Patents united the fame to the Excheqiier, which was utterly
void, becaufe fhe had diflolved the fame before : So as fhe purfued
. f o ibid & "o'^ h^f" Authority ; and fo it was Refolvcd by all the Judges, (j)
ByerVEliz. 6. The end and intent of this Court was, that the K. might be juftly
* dealt with touching the profit of fuch Religious Houfts; and the
Court took its name from this, that the Revenues of the Crov/n were
fk much augmented by the fuppreffion of the laid Religious Houfes
and the Land; for by the fupprcfling of Ibme, and the furrendring
of other Religious Houles, the Royal Intrado was Co much increafed
in the time of H.8. that forthe better managing of it,the K. ereiied
firft the Court o^ yiugmentanons,2.nd afterwards the Court oC Sur-
veyors ; But In fhort time, whar by the profufenefs of (bme, and
the avarlcioufhefs of others, it was at laft fo retrenched, that it was
Icarce able to find work enough for the Court of Exchequer. Here-
upon followed the diffolving of the faid Two Courts in the laft
C- ' ^'^J^' Hlft. Parliament by this King (z.\
Ecdp. 1 3 J.
CHAP.
335
CHAP. XXX.
Oj Annates or Fifl-Fmits-^ as alfo Tenths-^
of Auvioiie or Franks Almoign*
1. Annates, "what ; why fo called ; faicl ancimtly to the Tope ;
when and by what Laws tranjlated to the Crown ; a Court
thereof, when erected, end hy whom diJ]ol-ved.
2. The great Antiquitji of Annates or Fir f -Fruit s\ the great Re-
'V en tie it brings to the Papal See ; often complained of as a
great grievance anciently.
3. The Popc*s receiving 0/ Annates compa*-ed to An •on the High
Triesi^s receiving Tithe of Tithes : The Original, Atititjuity,
and Equity thereof controverted hy foine of the Antient Oa.-
nonifis.
4.. l^^'hat the Tenure of Aumone or Frank AlmoJgn isi a defcrip-
ticn thereof, with its ufe and end.
5. The difference between Statute and Common Law touching
Annates or Fir fl -Fruits, whether due and payable upon Inftitu-
tion^r not till Induction.
6. To whom the Tenths of Spiritualties were anciently paidy and
how t hey came to the Crown originally.
(l.) "Tnj ^ the Statute of 25- H.8 .lo. Annates and Firf -Fruits-
W"^ ^^ Ai chbin^opricks and Biinopricks (eem to be one
jL.^ and the fame thin^, and were Anciently paid to the
See of comcy and that throughout all Chriftendom, as were alio
the Frimltia, Fir H -Fruits, or Profits ot every Spiritual Living, bur
Were afierwarus by another Statute tranilarcd from the Pope to
the Piince. [.a) For the due regulation whereot there was a Court ^ ^^
purpofely erected by a Third Statute, {b') whereby it was made a cap "'^ -
Court of Record, and commonly called the Court of the Firfi- [b] yt.52. H.8,
Fruits and 7e?-/^''i,and fb continued until ic was dilfolved by Qneen c. 35,
Mary ; (c) hnce which time it was never rcftortd, albeit the Profirs ''^ H- H.8.1 7,
were reduced again to the Crown by the Queen Eliz^aheth^^d) and '' p.^' ^' ^"
the matters dicrof to betranfa6ted,were transferred to theF.xchcqu' r. ,^) g^ j Ma-
The Ftrfl- fruits after the laft Avoidance were probably called ^i??- seJ. 2. cap.io,
nates, becaufe they took their meafures from the rate or proportion {d) ciift. be,
of one years profit of all Spiritual Livings and Proraorionf, and J E-iiz- -v-
accordingly
33^ Of Annates or Firft-FrtiitS'^ as dfooj Tenths^
accordingly are to be compounded for : (b that thefc Annates^ Trs~
miti^f and Eirfi-Fruitizxe all one; aod ic was andenrJj the value
of every Spiritual Living by the year, which the PoppjClalming
Mich, y Jac. the difpofal of all Ecclefiaftlcal Livings, referred. Thefe Im-
Co. lib. 12. propriations began about the time that VdydcreVirgil^ lik S.c<3^.2.
makes mentions of, i/id. Concilium Viennenfe, quod Clemens ^in-
tus indixit fro Annatibus. Thefe Firsi-Fruiti were given to the
Crown 2.6 H. 8. caf. 3. Sir Ed. Coke cites an Ancient Record of this
Subjeii:, /;//7/. 'i.^Ed. i.An. 1507. At a Parliament held -it CarliJIey
great complaint was made of Oppreflions of Churches, O'c. by
William Tefia ( called Mala Tejla) and Legate of the Pope ; in
which Parliament, theK. with the affent of his Barons, denied the
payment of Firfi-Fruits'^ and to thiseffetl he wrote to the Pope :
whereupon the Pope relinquifhed his Demand, and the Fir(i--FrHits
for Two years were by that Parliament given to the King. Thefe
Firfi'Frmts or Annates^ Trimtia, are the Firfi-Fruits after Avol-
Go.Inrtr. par.4. dance of every Spiritual Living for one whole year (except Vicar-
^^P' H- aggg pot exceeding 10/, and Parfbnages not exceeding 10 Marks)
but all are to pay Tenths. Which Tenths Eccleliaftical Decima^ are
theTenth part of the value of all Ecclefiaftlcal Livings yearly pay-
able to the King, his Heirs and SuccefTors, by the faid Statute of
z6 H.^.cap.^. and i Eliz. to be valued according to the value of
Ecclefiaftlcal Livings, which were fbmetimes valued by a Book of
Taxation made in zoEd. I. which remalnethin the Exchequer, &
by another Taxation in 26 f7.8. which alfo rcmaineth in that Court.
Go. ibid. And according to this latter Taxation are the values of Ecclefiaftlcal
Livings-computed for the Firft-Fruits and Tenths. The Lord Coke
fays J That the Bifliop of Norwich had in 1 9 £.3. by Prefcrlption
Jrlmeout of nilnd,&c. Firfi-Fruits within hIsDiocefs of all Church-
es after every Avoidance: But thefe were alfb given to the Crown
by the Statute of 26 H. S.cap.^- And as for the Tenths the Cano-
nifis do holdjThat the Pope pretended to have them Jure Di-vino,
Num. 1 8. ^6, ^s due td-llhe High Prieft by pretence of thefe words, Vracipe Levi-
Scc. vid- Jerom. tis atque denuficia, cum acceperitis a filiis Ifi'ael Decimas quas dedi
in Ezek c. 44.J 'vohis, Primitias earum ojferte Domino, tdeH, decimam partem De-
V. z8, &c. cima, ut reputetur ruohis in Oblationem Trimitiarum tarn de areis,
quam ds torcularibus^^unit'erfii quorum accipietis Vrimitias offerte
Domino, C^ date ea Aaron SacerdGti.^uit\\c Parliament in ij //,8.
& r6H.%. werenoc of opinion that thefe I'enths did belong to the
Bifhop of Rome, as appears by the feveral Pream'bles of the Star,
then enaiSted: And had they been due yure Di-vino to the Pope, It
is not probable that Qiieen Mary by the A61 o\ x^ ■^ ?h.^ Al.c.^.
•would have exonerated and difcharged the Clergy tiiereof, nor re-
fufcd to have had them paid to the Pope ; nor could the Bifhop of
Nor-
of AuPiQne or Fran^ Almoign. 337
Nar-wich (as aforefaid) have prcferibed to bave Flrft- Fruits witfiii
his Dioccfs, if rhey had been due to the Pope de jure di'vino, fpeci-
ally ior t\\-At Anthony de Becke, for whom the Pref criptlon was made
wasa Retelner to the Court of Rome, and made Bifhop o( Ncrv^ich
by the Pope. Ftd. Co. Infiit. far, 4. cap. 14.
(a.) It was an old Obrervation,& ofnolefs truth than Antiquity,
that there never was any Invention that ever brought more Trea-
fure to the Bifliopof Rome, than this of Annates, which is of far
greater Antiquity than fome Modern Writers fuppofe : fo Volydore
Firgii Po!. Virg. de invent, rerum, lib. 8. caf.^. Et Annates more
fuo afpellant Primes fruchs unius Anni Sacerdotii vacantis, aut di-
imdiam eorum partem. Hiftorians do not agree, what Pope firll
impofed Firll-Frults: VFalf.An.De.i '^iG.Tri'vet.Ranulphus Cifiren-
fts, hb.-j. c. 42. Pcljd.Firg.'iibifupra. Platina, Fox, &c. This Tri-
bute or Revenue long fince, when the Bifhop oi Rome had not fuch
lai'i^e poffe(fions as now he hath, yet at vaft expence and charge to
uphold and maintain his Dignity, was gradually by little and little
impofed on fuch vacant Benefices as himfelf conferred and beftow-
ed, which, as Hofiienfis (contemporary with P. Alex, the Fourth)
doth affirm, was often complained of as a very great Grievance; fo
that after this Laharel declared in the Council at Vienna, That
Clement the Fifth, who was made Pope in the year i ^o^r- forbad
the receiving thereof; and that layln>z the fame afide,the Twentieth
part of the Sacerdotal Revenues Ihould inibad thereof be annually
paid to the Bifhop of Rome\ but this not taking effe6i:,t he Pope fo
retained the faid Annates to his Exchequer, as that to this day it
remains one of the confiderableft parts of his Revenue. Folyd. Vtrg,
tfbijupr.
(3.) The Canonift Gnmmarus, in favour of the Apoftolick See,
aflerts that Annates are very juftly required by the Pope proCon-
fervando decentiflatu, and compares it to Aaron the High Prieft s
receiving the Tithe of Tithes, the Tithe of luch Tithes as were
given to the other Priefts ; adding withal, that Annates are of
very great Antiquity • Gammar. in Extr. Julii 2. dt-Simon. Papa ■
Eledf. nu.'i.^:i. w R pet. Jur. Can. To.b.par. x. fo, 54. asappears
by the Concvliions ^.f Jo. Andreas, and of Hofiienfis; Jo. Andr.&
Hofiienf m c. inter cater a, deOffc.Ordin. the which Tho. Aquinas
doth not deny, laying, That it is but conlonant to Natural reafon^,,
that he ejm omnium cur^.m habtt, de Cvmmuni alatur; and thence
concludes. That the Pope may require Tithes and Annates^ froni
the (. lergy ; Acjuin. 1. 1. (juJfi. 87. artic.^r- As to the Original of
thefe Annates, Platina and Blondus report them to have been hriX
cxafted by Popt Bantface xhe Ninth : Others affert it to be in the
lime of Pope John the Two and twentieth, which was above Seven-
3^8 Of Annates o r Firft-Fmhs, isfc.
ty years before that Bomface.But Johannes Eccius in his Enchiridii/^
againft the Lutherans ^ fays, that both Blondus^Vlatinaj and Grava-
mnus, whom he there n\ck-nsLmes(Eccle/ia Confarcinatores) were
all in an Error in afcriblng theOriginal o[ Annates to i\\\i Boniface
or that John\ for fays he (quoting Johannes Andreas for his Au-
thor) in the Council at Vienna^ Ann. i 3 1 1- whereof P. Clement
the Fifth was Prefident (which was long before Bomface or John
the ^^) there was a Debate concerning Annates ; Jo. Andreas ubi
fupr.& Gam.uh'i fupr.But there fuppofing Clement tlie Ffth to have
been after John ii^.was the ground or rcalbn of their Error.
(4.) Ammne or Frank Almoign is the fame which we call Li-
bera Eleemojyna, or Free Alms, whence the Tenure is known by
the Name,Tenure in Aumone,\v\\\c\\ is a Tenure by Divine Service. •
Ca) Britton. {a) It is a Certain Tenure or Title of Hands at the Common Law,
fo. 164. as when Lands or Tenements are freely given in the way of Alms,
to fome Church or Religious Houfe, upon this condition or confi-
deration, That Divine Service fhall be offered and Prayers made
fro bono anima Donantis^ox the like: So that this Aumone or Frank-
Almoign is no other than a Tenure or Title of Landsor Tenements
beftowed upon God, by giving them to luch as devote thcmlelves
to the Service of God, for pure and perpetual Alms : whence the
Feoffors or Donors cannot demand any Terreftrial Service trom the
Feoffees, fo long as the faid Lands and Tenements remain in their
ih) Britt. c. 66. hands, [b) With this agrees the Grand Cuftomary of Normandy^
J'cjB'ad 1 2 ^^^^' ^5'^"^ whereof £r^^o« writes at large, (c) But Britton makes
c. 5-, 6c i*c. another kind of this L^?2^, which is given in Alms, but not in Free
vid. F. N. B. Alms, becaufe the Tenants in this are obliged to certain Services
fo. i 1 1 . 6c to the Feoffor {d).
£«mfrterb ^^"^ ^" ^'^^ ^^^"^ °^ Dennis againfl Drake it was faid. That if a
Frank' Jl ' "^^^ belnftituted to a Benefice, he ought to pay the Firfi-Frnitshe-
moipje. f*-*i''2 InduiTrion by the Statutcj but by the Common Law it was o-
{d)Mtt. uhi therwifc, foT he is not to have the Temporalties until Induction,
/^f- and therefore he could not pay the First-Fruits : But another per-
son cannot be Prerented to this Benefice during the continuance of
ihe lirft Inflituiion. And an Inflitution to a (econd Benefice is a pre-
(.) In Cafe ^^^^ Avoidance of the firft (e).
De?i?iis veif. // \ -r^ • , n r^ , r n • • 1 • 1 J
i:,..^,ke. v*^0 Dec:f7ia^ id cjr^ Tenths of Spiritualties were perpetual, and
Lane's Rep. paid to the Pope, till Pope Urban gave them R, z. to aid him a-
Vid. Co. lib. 4. gainil: Charles ^Kxvs^o^ France^ and others, who fupportcd Clement
D:ghie's Cafe, j^g Seventh againft' him. And ^ H.^ by the Pope's Bulls all Tenths
Mich^'f. Tac. ^'^''^ P^^*^ to //. 5. for ycars: Thefe were given to the King 16 H.
Col. 1. 1 2. S.cap.'^. Vid.hatnbert deprijl. Ang\. &cfo.ll'6.cap.lo.St.ibid. inter
Leges ln9^.fo. 78. cap. 4.
CHAP.
3i9
CHAP. XXXL
Of Altarage,
1. The genuin Jignificatkn of the a^W Altarage, what is com-
prehended under that Ti^ord: Two Cafes at the Cotnrmn Law
touching Altarage.
2,. A fe'vere Canon made hy Cardinal Otho agatnft the grofs a-
hufe of Altarage; an Artifice to defeat that Canon : And -whe-
ther Altarages may be let to Farm.
5. T4'hether Tithe-Wool will pafs by the word Altaragiumt*
4. The ifor^^Altaragium ^all be expounded according to the ufe
and cuBom of the Place.
5". Whether Tithe- wood may fafs to the Vicar hy the word hlxax^r
glum.
•) A Ltarage or Altaragium, a word though now fome-
yuA what obfbletej yet in Signification of Ecclefiaftical
JL JL. cognizance, and in the intent thereof pradicable at
'liis day. Mr. Blount in his Nomo-Lexicon takes notice thereof as a
ivord wich comprehends not only the Offerings made upon the
Altar^ but alio all the Profit which accrues to the Prieft by reafbn
of the Altar, Ohventio Altaris. And for further proof and illuftra-
llon of this matter, there cites a Prefident out of the Orders and De-
crees of the Exchequer in the Reign of Queen Eliz,abeth to this
effect, That upon hearing the matter between R. T. Vicar o^Wejl-
Haddcn, and £. Andrews, it was ordered, That the laid Vicar
(hould have, by reafon of the words (^Altaragium cummanfo Com'
fetenti) contained in the Compofition of the Profits affigned for
the Vicars Maintenance, all fuch things as he ought to have by thefe
words according to the Definition thereof made by the Reverend
Father in God, John Lord Bifliop of London, upon Conference with
the Civilians, viz. &'c. all Doctors of Law, h. <?, by Altaragium
Tithes of Lamb, Wool, Colt, Cglf, Piggs, Gofllns, Chicken, But-
ter, Cheefe,Hemp, FlaxjHoneyjFfuitSjHerbs, and fbme other Imali'
Tithes, with Offerings that (hall be due within the Parifh o^lFe/l-
Haddon, (<?) The like Cafe was for Norton In Norhamptonjlnre-) (-0 Mich. 2. i ,
heard of late years in thefaid Court, and. upon the Hearing ordered F^^'^; ^^s<^a«^-
in like manner as aforefaid. Thus all Oblations,, whether in Mon-y anr/XIri?.
or Breach, .to iiich or fuch an Altar, either out of Devotion- or Cu-
I i X ftom.
240 Of Altarage.
-^ ' - ... — , — ____^ — -
ftom made either by the Parifhioners or Strangers, are efteemedto
Q) GIofT. in be offered nomme Altaragii. {b) Under which Notion may becom'
Matt. Par. prehended Oblations, Obventions, and Offerings^ which in effect
Blount'i No- ^^^^ J.Q j^^ i^ijj gj Qj^g ^^^ jj^g l^gj^P thing, and that which may be
^h,^^i',Z' called meerly Spiritual, the Oblations feeing fueh things Real or
Perlbnal as are offered or dedicated to God and his Church, which
/eem to be included in Obvention j the other Profits confifting in
the Tithes Predial or Perfbnal, as alfo in the Glebe. John de Aton
in his Glols upon Cardinal Otho\ Cbnftitutions, defcribing the Tro-
njentus ex Alt Arty (ays, that they arc Offerings either in Bread or
in Mony, or confifting in other minute Oblations, vulgarly called
Altaragium. Confi. Oiho. cap uiuditu.verb. VroventuSyGlofs.ibid,
Which word extends it f elf alfo to all things pertaining to the Al-
tar, and relating to the Ornaments thereof, which were by the Ca-
nons and Conftitutions of King Edgar, An. 967. to be MundiJJima
C^ af prime Condnnata : Canon. 42. Edgar. Reg. e Veterrimo M.S.
Codice Saxonico^Colleg.Corf.Chrifii Cantabrig. But this cannot refer
properly to the word Altaragium otherwife than in fenju largo y
for by the genuin fignification thereof is meant only the Obven-
tions. Oblations, and Profits of the Altar , not the Ornaments
thereof.
(a.) In Cardinal Othos daies, about 170 years fince, this Prc-
venue of Altarage was moft grofly abufed by many of the Clergy,
infomuch that he made a moft fevere Canon or Conftiturion againft
the Offenders in that kind , for in thele dales (as he obferves in the
Canon) thefe Miserable Priefts (for fb he there calls them) to ad-
vance the profits of their Vicarages out of their ravenous Cove-
toufneft, by the exxcflivc gain of their Altarages, would admit
none to their Penitential Confellions, unlefs they firft depofited
lome mony, in purfuance of a precedent Compaft (as the Glofs has
it) by way of a Stmoniacal extortion, far exceeding the allowed
and accuftomcd Altarages or Oblations of the Altar : And there-
lore, hrlt declaring them not only unworthy of all Ecclefiaftical
Benefices, but alfb of the Kingdom of God, did Decree, That the
Bilhops in their relpe6Vive Dioccffes fhould make a moft exa(5l En-
quiry touching this horrid abufe, and that all fuch as were found
guilty thereof, (hould be removed from and deprived of the Bene-
fices they pofieffcd, and for the future be render'd incapable of all
Ecclefiaftical Preferments, and wholly fufpended from their Fun--
ftion forever. Confiit. Oiho. JSlhaU^^mdexigatur fro Sacramentis
fol. 6. verb. Auditu. Notwithftanding which there being then in
u(e and pra<5iice another kind of 5/wwz;>c/?/ Artifice to advance the
fxcefiot Altarages, by Letting them and other Ecclefiaftical Re-
venues and profits of the Church 10 Farm, another Canon orCon-
ftitution
Of Altarage: 341
ftltution was then alfo Decreed, inhibiting and forbidding all fiich
Farms of Altarages in any kind for the future : Where yohn de
Aton in his Glofs upon that Canon fays, it was conftltuted for the
prevention of Simony \ and there takes the occafion to put the
Queftion, Whether it be lawful to allow a Parochial Chaplain for
his ftlpend the Annual Obventions of Altarage in whole,orin partj
the Negative feems (fays he) to be inferred from the Text of that
Canon ; but in his own opnion he is of another judgment, becaufe
h matters not, whether his Salary be paid in Mony or any other
Ecclefiaftical thing ; and concludes, that an Augment of (uch Al-
tarages may (afely be tolerated ; and that the Prieft to whom Alta-
rages areducy may appoint his ProtSlor to col!e£t the fame, and be-
ing fo Colle<^ed, lawfully be afligned hira for his Stipend : And.
although the Canon forbids the Letting to Farm tUe Altarages^ and
other profits of the Church, yet the Glofs holds that the Temporal
Provenues of an Ecclefiaftical Jurif3i£lion may be (old or let to
Farm ; but not the Spiritual Right of the Jurifdi<Slion it felf ikiJ.
ConHit. Ne JDign. tradantur adfirmam, 'verb. Ecclcfias, & Ulofs,
ibid.
(3.) Note, upon Evidence to a Jury, between Brett and Ward
upon the dilTolutlon 6f a Vicarage in the County of Warwick^
which was part of the Priory of Dantrjy where the Pope by his
Bull gave to tht Vicar Minut as Decimas &• Altaragium.Und it was
certified by the Dolors, That Altaragium will pafs to the Vicar
Tithe-wool, 8cc. and the ufage was fhewed in Evidence, and the
Copy of the Popes Bull ^ and the Court would not credit that
without feeing the Bull It felf: And fo the Plaintiff was Non-fuit,
and the Jury was dicharged. (c) Bulla h. e. properly Vefcula ^^^ g^^^^ ^^
acfua: fuperfluens : But in this cafe a more reverend efteeni was had jVard's Cafe,
of the Popes Bull. Bulla is alfo taken for the Bofs of a Nail or Bri- Winch. Rep.
dU : Hinc Bulla fro Sigillo & fro obfignato Diflomatey in frintis
Uteris Pomificum plumbeo fgtllo notatis. Has liter as Bullam 'vo-
canty c^uia plumbed bulla arclentur ; e\uemadmodam af>ud Romanes
bulla erat Ornamentum aureunty ejuod jungebat njefies : Efl enim
bulla tumor y ^ ornamentum illud^ hoc Bulla nomen retinuit, ejuam-
vis infiguram Cordis ejjet fabricatumy ut refertMicro. in I. Satur.
^uare aliejuoties vtfiis ipfa Bullata Bulla nuncupatur ; tta d?* liter£
Apofi, Bulla plumbi munita Bulla nuncupantur^ Gammar. Extra.
Cum tam Divino.
(^4.) W. Libels againft G. in the Ecclefiaftical Court for Tithes
of Wool, Wood, and Apples, &c. and he ftiews that he was Vicar
there, and that the S E. I. there was a Compofition, That the
Parfbn fhould have the Tithes of Grain and Hay, & praterea the
Vicar fliould have Altaragium : And for that thofe Tithes did
i i i a not
^42 Of Altarage.
njt belong to the Vicar, he prayed a Prohibition. And Henden
objected. That the Parifhioner ought to fee. forth his Tithe, and
not difpute the Title of the Parfon or the Vicar ; but the Vicar
ought to come into the Ecclefiaftical Court ;>ro intereJJ'e fuo : But
notwithftanding that, gnd notv/ithfbnding the Vicar refufes to
claim thofe Tithes, and that always within memory they have
been paid to the Parlon, yet a Prohibition was granted ; And in
the end f upon the Compofition) power is rt(erved to the Ordi-
nary, if any doubt or obfcurity be in the Compofition, to expound
or detetmine it j and if he pleafe, to increafe the part of the Vicar;
and there was no power of diminution : As by Hunon, it is alfo
. ufual in fuch Compofitions ; and they fay, That the word Altar a-
giumihW be expounded according to the ufe; as if Wood had
always been paid to the Vicar by virtue of this word, fo it fliall
continue, otherwile not : And fo it had been Ruled in the Exche-
quer ; and upon that Prefident it was Ruled accordingly in thi;
Court : and by them JVoodk Mmuta dectma^ as in the cafe of St.
(^) Xir.Weod Albans it was Ruled (i).
W?crre. _n. ^ ^•' i" ^ ^'"'^^ ^^ ^^^ ^^'' ^" ^" Aaion of Trefpaf;-, the Que-
Hetl. Rep. * "^"^" arlimg between the Parfon and the Vicar, as touching Tithe-
Wood,^ and to whom the fame belonged: As to this by the Opi-
nion of the whole Court clearly, the Parfon demero jure ought to
M.-ch. lo Jac. ^^^^ ^y^ Tithe- Wood, if the Vicar be not Endowed of the fame,
B. R. Reynolds °'' clalpis to have it by Prefcrlption ; hut without fuch a Dotation or
Prefcription the fame belongs to the Parfon. Another Queftion was
propounded for the Vicar, who entitles himfelf unto the Tithe-
Wood by thefe words {_Altaragiiirn\ and Mmuta Decim^, whe-
ther thcfe words will carry the Tirhe-Wood unto him or not: As
to this, the expofition and true definition of this word [Altaragmml
is confiderable, and to whom this is due. \_Altaragium~_ as wasob-
ferved.is that which is due to be ferved at the k\i^r.mllJams]u\i\ce,
Altnragitim is that only and properly which is offered at the Altar,
and Mmuta Dectma are the fmall Tithes ; alfo the word [_Altara-
pmri] will not carry Tithe- Wood : And this is the Queftion here.
Whether the Vicar by this word \_Altaragium] hath Title to the
Tithe- Wood? Crook JulHce This word Altaragium doth not carry
the Tithe- Wood, which are great Tithes, but Mmutas Decimas,
which are petit /mall Tithes; Minuta Decima & Altaragia, the
VIcar,as was urged,is to have them by his Compofition,and'^that by
thefe words hxHs to have Tithe-Wood.F/f?;?wa Chief Juflice, There
is an ufage here laid in the Vicar to have the Tithe- Wood, by rea-
fbnof thefe words, Altarr.gia & MmutA. Decima, the which the
Vicar can no ways havr, but by Prefcription or by fuch a Uiage ;
and fo the, fame may pals by thefe words Altaragia 0- Mmuta De-
cbnay
'n I
verf. Green.
Bwlft. pa. 2,
Of Altarage: 343
cinice, and the Ufage had accordingly : Alfo Sheaves of Corn have
pafTed by Ufage to the Vicar, by the v/ords Altaragia &• Minute
Dectm^y and foit was Adjudged in the Court of Exchequer. The
Judges all agreed in thisj That by thefe words Altaragia d^ Mi-
nuta Decima, by Ufage, Tithe-wood may well pafs ; and fb hath
the Opinion of all the Civilians been. Fleming Chief Juftice, and
the reft of the Judges agreed in this, That by Ufage, the word Al-
taragia fhall be accounted inter MinutasDecimas.WilUams Juftice,
By the word Altaragia Tithe Wood doth not pafs ; but if the
Vicar have u(ed to have the lame, time out of mind. This is good,
and (hail pafs under the words of MinutA Decims., 'Fleming Chief
Juftice j Though the Law be againft it, that Tithe- Wood doth not
pafs by thefe words, yet by Ufage it hath been allowed good, to car-
ry Tithe-Wood by thefe words, being of fmall value j and by
fuch ufuage Tithe- Wood may pais, though the Law be againft it.
3+4
CHAP, xxxn.
Of Tithes.
I, What Tithe i are \ the Original thereof in EnghndjWith the
Di'vifion and Subdivijion thereof.
X. Whether the Quotlty be Moral, or only of the Ceremonial or
Judicial haw ? The Injlitution of Tithes ; the lawfulneft
thereof under the Gofpel; it ts Sacriledge, Theft, and Robbery
to withold them.
3. it he Common Arguments againjt fayment of Tithes, An-
fwered.
4. A fourfold Di'vifion of Tithes under the Levitical Law.
f. Toe Schoolmens conceit touching the Divijion of Tithes, in
allujion to the Divifion of the Law of Mofes.
6. Tithes anciently Ecclefafiical are now Ttmf oral Inheritances',
feveral Laws touching Tithes in general.
7. What the Common Law of England under (lands by Tithes ;
The fir fi ob fir unions thereof by Charles Martel.
8. The fuppofed reafon, why Tithes before the Lateran Council
might be paid to any Church or any Priefi. The original Divi-
fion of England into Farijlies.
5. The Exa^ provifion anciently, as well before as fince the Con-
tjuefi made by the Sovereign Kings and Ppinces of this Realm
for due payment of Tithes.
I o. The Suppofitim of the Parochial Right of Tithes to be fettled
by a Canon of the Council of Lateran, ContradiBed.
1 1. Whether a Parfon may make a Leafe parol of his Tithes.
I ^. Tithes dif charged by Unity of pojjefiion.
1^. A Covenant between Parfon and Parijhioner touching Non'
payment of Tithes.
1 4. Whether Proof by one Witnefs in cafe of Tithes ought tofuffice
in the Ecclefiafiical Court.
1 5-. Tithe-Wool, and Rotten Jheep ', Tithe-Calves,
lb. Tithe-Headlands; Tithe-Wool', Lamb and Wool included in
Small-Tithes.
1 7. Tithe-Wool of jheep depaffured in one Parijh and Sheared in
another.
1 8. Suit for the Tithe-Grafs of a Riding Nagg.
19* Modus decima.ndi touching Tithe'Wool, and Lamb.
ao. Park-
345
20. Park-Tithes ; Buck and Doe not tithable ; •ivh^t Partridges
and Pbefants are not tithable.
1, 1 . Saflron, whether it be Small Tithe i. ; V^nijon not tithabls.
ax. Prohibition for not allowing Troofby oneWitnefs*
a J. An ABion of the Cafe lies again]} a Parjon, that takes not
away in due time his Tithe-Corn fet out.
24. The Parifjioner not obliged to divide the Tithes into Aioities,
where two perfons have fortion of Tithes by halves.
1). A Cttflom of not tithing the od Sheafs ^ good.
16. Whether Tithes Jl]aU be paid of the Glebe Leafed to a Far"
mer.
ij. Whether Tithes may be Leafed or Releafed without deed.
28. A Parfon may Sue in the Ecclefiafiical Ourt pro modo Dc-
cimandi.
19. Whether that Court may proceed therein in cafe t he Modui be
denied.
30. In what cafe the Right of Tithes is triable in the Exche^uer^
31* A Cafe in Law touching Prejcription, and of Tithes of a
Park Difparked.
51. What things are reputed MajOTCS^ what Minores Dedmar^
and how they may vary according to the Circumfiances.
3 \. Whether Tithes are payable of Cattel for the Dairy or the
Plough.
34. Whether a Dean and Chapter be capable de non decimando
their Lands.
35'. Touching Tithe-Herbage of yourCattelyof Hedge-Jtuffyof
Orchards^ and the Cujlom of Hearth-peny.
^6» 71the-Fi[h, Cujlomary Tithe; whether Prohibition ornot,
37. Acorns tithable, if fold, whether Pigeons, iffpentmtht-
houfe.
3 8 . Several Cafes touching Dif charge of Tithes.
39. Hay of Headlands^ whether tithable^
40. Prefcriptionfor difchargeof Tithes upon payment of lo%. per
ann.
^i. A Forrefiis the Kings Hands ispriviledgedofTithes, not
' fo in the hands of a SubjeB : The Right of Tithes between
Parfon and Vicar y triable in the Ecclejiaftical Court.
41. Whether Tithe Jhall be paid for Hedge-boot and Fire-boot?
43. Touching "Tithes of young Cattel, of Hedging and Fencing of
the Herbage of Heifers, and Horfes, of Dry-Cattel, and of
Gardens j how far tithable, or not.
44. Apples ftollen out of the Orchard, not tithable ; noTithe of
Pafture of Milch-kine grown dry, unlefs kept for Sale.
45*, Compofition for Tithes for life '^ not good without Deed.
^6.EJlover&-
34^
46.' Efioven burnt in the houfe, not Tithabk. The Hearth-feny
good hy Prefcription.
47. \A Compojitiow fot Tithes- de anno in annum.
48. The Modus decimandi is Suable m the Ecclejtaftical Court,
as well as the Tithe it felf.
49. Prohibition in cafe of Libel to prove inperpet. rcl memo.
. 50. Cu(tvm of Tithe-Grafs Cocks as to both mathes.- ^ ■ -
5-1. In a Prohibition upon matter at Common Law,and not with-
in the Stat, of zE.- 6 .J ^. -the Suggeihon need not be proi^ed
in Six months. ' ^ '-'^* vj ^^lvs,'*
52. Tithe-Hay of Headlands \ Cuftom and Prefer iptiofi.
5" 3. Tithe-Hay of Heathlands'y alfo Tithe of Pidgeons.
-■•^54. Minute Tithes t<y the Ficar. .■•.u;*',^ ■
5-5-. Tithes toParfon and Vicar may amount hut to one AUion.
a^«^.' TheXtirate Jifay not Prefer ibe in Tithes agamfi the Parjvn.
57. Curates may fue for Penfons in the EcclefaHical Court.
"58. By the Civil -Law, thefarfon to have Notice when Tithes fet
« ':0kt4 ■■.'.>--■ ,
59. ABion ontheCafe againjt aCompounder for Tithes Suing in
f%r.vt-he'Eccleflafiical' Court.
60. Modus decimandi by one may hold ai to the others for a Pro-
'-•>* hibition. • ,
61. Compofition for one year good without Deed\ not if for years.
6^. Tithe-Bafel, Holly ^Wi How ^W hit ethorn', Whether the Pari-
(Inoner f]all preferve the Parfons Tithe for him ?
\€^^ Teftfs Singularis not fufficjent to prove payment of Tithe sin
the EcclefiaslicalCourt.^^'*-'-^ V- v\<^\vt-
(i\< Compofition for Tithes^'- an da Pr&hibition thereon.
' fif. Tithes taken jiway by a Stranger after they are fet out, the
Parfons remedy lies at the Common Larv.
66. In what Cafe no Cofls upon failure of Proof of the Suggef
tion within the Six month's^ * .
^^'7: Modiis "Deciniandi may b§ Sued for in the Ecclejinftical
Court ; where if denied., they are tofurceafe.
6%. Cufhcm in Cornwal touching Tithes of Sea-fjh.
69. In what Cafe an Agreement for Tithes for years may hegood
without'Deed. ■■ ■ •
70. In 'what Court Tithes of ReMs in Jjondon may be Sued.- '
Xyt^ 'A'dclleSf-oryf Tithes xanhci.-^icenfe-a Parifiiioner to carry
'^^ '-'aivay his Corn: «"
72. VVbether Debt Ues for Treble dammages upon Fraudulent
fett'ing forth of Tithes.
7 3 . Tithes where thsj belong td the Tarfoft or the Vicar, cogniz.a"
hle-'in^'the^E^ccleifafliial Conrt^whefe the" Right of Tithes is con-
'''■f^fid: -^t ' 74. The
Of Tithes. 347
74. The Ecckfiafiical Court not Judges ofths Bomdi of dl^^»
rijiu . \ -.
7 5. Modus Declmandi in reference to a Park,
7 is. A Frattdiiknt fetting out of Titksi is no fettmg tb^m out
at nil. •
77. The Fk^r jhall have Ttthe of P.ape-Seed, heingwitbin a
Frefcnpton^thcugh a new thing in "Exighxid,
y%. V/hat the word G-^xh^i Jignifies.
75. Whether PVcod in its own nature he great Tithes \ and in
what cafe it pallpafs by the words de minutls Decimls.
8 o. Ift7vo Titles of Tithes unite in one perfon, there need but one
Atiien for them.
^ I. A Parfon may not fet a Leafe for years of Tithes per parol
only.
82. If a Varfon be difiurbed in carrying away his Tithes fet out,
his Remedy lies properly in the Ecclejia(lical Court.
(l .) r H^ TTHES \P)ifmes, Dceima:'] probably an abbreviation
■ from the ^^yxoWjTeoJ^unt^, or Tithing, properly De-
(Bi curia in that Language. Lamb.Expl. of Sax. words,
'ver. Decuria. That the Apoftles and Elders at Jerufalem were
competently fupplied by the Contributions of the fewijh Profelytcs
is very conje6lurable in that they fold their poffeffions, and brought
the price thereof and laid it down at the Apollles feet ; and fuch as
then planted the Gofpel and laboured in the Word and Do6trine,
had their maintenance by the Contribution of their Converts, Fid.
Cencil. Gr^ng.Can.y .& 8. And St. Cyprian writing to the Church of
Carthage,Epi/l.'^^.&c'^4..to receive Aurelius & CellerinusjCon^tSbrs,
faith in Epi^. 54. Fresbyterii honorem defignaJJ'e nos Hits jam fcia-
tis, ut d^ fprtulis iifdem cum Presbyteris honcrentur^d^ Divifiones
Menfurnas aojuatis ejuantitatihus partiantur. Know you, that we
have already defigned to them the Dignity of Presbyterjlnpithanhey
might be honoured with fuch allowances as Presbyters have, and
receive equal fhares in the Monthly Dividends. So that Sportula
Were the allowances, which in this Infancy of the Gofpel ^^'^^^^^^- cawdrve's
byters had out of the Contributions of the Converts ; and the Era- Difcomfe of
tres Sportulantes mentioned by him in his Epifi.66. were the Clergy Panonage, p ?.
which received fuch allowance. Thefe Converts (after the Conver-
fion of Confi-antme the Emperour) many of them being Gover-
nours and Nobles , ferled great and large DemfivLands upon
thole who Converted them ; and that (according to Mr. Selden's
conje61:ure) the firft Oratories or places of Publick Worihip, were
bulit in the Lands beftowed on them ; which firft Oratories were
called Cathedrals, Sees, or Seats, from their conffant Refidencc
K k k there-
348 Of lithes.
thei^eon. That the Chriftian Church even in times of Periecution
laid claim to Tithes as due yure Divino, is partly confefled by Mr.
Seldtn himfelf, citing fome paffages in the Ancient Euthers to that
purpofe. But when the Empire became C/6r///i.'?», then the Chrilllan
Clergy did more earneftly prefs to Donation of Tithes; and in
procefsof time they prevailed, not only by Preaching and Canons,
but by the Edi£l:s ot Emperours an-d Kings, to hiive Tithes given
to the Church. And it appears, that the Reman Empire, wherever
it did reduce any Conquered Country in formam Froz^inciegj ap-
pointed the Farmers of the Cuftoms, to coliedl: among other Im-
' portions, the Tenths of the Tenants of the Empires^ that is, of
all who occupied any Land in the Conquered Province, either as
immediate Tenants to the Empire, or as Sub-tenants under them.
The Publicans therefore who colle61:ed thele Tributes, were called
Ibid. p. 10. Decumani, asMr. SeUen,pag. ^C). of hisHiftoryof Tithesdothob-
Zerve out of Appian. But whether thefe Tenths were received by
the Senate or Emperours, upon a Civil or Religious account, is not
liquid and clear: For the Emperours always till Chriftianity came
in (nay Conjtantine and other Emperours even after Chriftianity
was received, till Gratians time, as the Noble and Learned i)«
PleJ/y in his Myflerie of Inicjuity obferves out of Zojimen ^continued.
the chief Pcntifice or High-Priefthood in their own perlons. And
as touching us here in England, Dr. tieylin, P. H. Treleynj, in his
Treatife touching Tithes, p. 5. faith. Tithes are not given to the
Miniftcrs by the People; for Sir Ed. Coke on Lilt, Tenures Jik i .c.q.
Se^i. y^'foL ^B.aflerteth,* That it appears by the Laws ancf Ordi-
nances of Ancient Kings, and efpecially of King Alfred, That the
iirft Kings of this Realm had all the Lands of England in Demefn,
and Les Grandes Manners d^ Royalties they refer ved to themselves,
and with the Remnant they for the defence of the Realm enfeoffed
the Barons of the Realm with (uch Jurifdicflion as the Court Ba-
ron now hath. And at this time, when all the Lands of England
were the King's Demefns, that Ethelwolph the Second Monarch of
the Sa:<onracc (his Father £'^^erf being the firft,which brought the
former Heptarchy under one ible Prince) conferred the Tithes of
all the Kingdom upon the Church by his Royal Charter. Of which
Ingulph Abbot of CroW^«i, .(^«.855.faith,That King Ethelwolph
with the confent (gratuito conjen/u) of his Prelates and Princes,
did firft enrich the Church of England with the Tithes of all his
Lands and Goods. Many other Laws of the Saxon Kings for the
payment of Tenths are recited by Mr. Selden, as entirely the Gift
, of Kings; And (b faith King Elred, Nemo auferat a Deo, quod ad
Deumpertimt,(^ VradueJJores nofiri conceJJeruntSThe whole Bi/ho-
prick Anciently was in a largefenfeaJP<ir<^^/>,and the income of it
(by
^_ Of Tithes, 2Ap
(by Contribution? fir/1, and by Tithes al(b afterwards) was t/ie ' '
Common flock of aJi the Clergy of the Dioce/i; and Mr. SeUen
aflerts it to be the general Opinion of the Common Lawyers,
That before the Later an Council, und^r Innocent 5. every man.
might have given his Tithes to what Church he would ( probably
within the Diocefs) becaufe they were not the Propriety as yet of
any one Presbyter, but the Common Patrimony ofall the Diocefan
Clergy, So that Tithes are a Tenth part ofall increafes Tichable,
dut to God, {a) and confequently to his Miniiters that wait on thef^j Levit. zj.
Altar. Thefe are divided into three (brts, i. Vradial Tithes, a- 3o«
riling only either of the Fruits of the Ground, as Cor«, Hay^Hemp^
and the like; or of the Fruits ot the Trees and Orchards, as Apples
Fears, and thelike. ^. Ferfcnal Tithes, arifing of the profits that
come by the labour and induftry of Man, either by Handicrafts,
as Carpcnters^MaJ ons,md the like; or by Buying, Selling, or Mer-
chandizing. 3. MLxt Titlies, arifing partly of the Ground, and
partly of the Induftry of Man, as of Calves, Lambs, Pigs, Milk,
Chcefe, anc the like. ( b^ No Tithes fhall be paid for fuch things //> p r-.
as do not increafe and renew year by year, by the A(ft of God.(£:) j^,,^ {.gj '° , .
Of Tradial Tithes fome are called Majores, vulgarly termed the C. B.
S^reat Tithes: oihtr Minores'vel A/i««/-<^,vi!lgarly the SmallTithes. ^^' Co. 1 i.Dr.
The Great, fiich as Wheat,Rjc,Hay.&c. The Small, fuch zsMmt,^''^'"^' '^•
Cummm, Annts, ^c. (d). And commonly with us here in Eng- f?\ , y^'
land we compute Flax in the number of Small Tithes (which is a ,2..
Tradial Tithe j as alfb Wool, Alilk, Cheefe, Eggs, Chicken, of all
kinds, Lamb, Honey, Bees-7i>ax,'^x\di the like, yid.Lmdw.cap.de De-
cimis. In Ancient times the Laity were fo far from fubtra£l:ing their ""
Tithes, as is the common praftice of thefe days, that oft-times
they would give more then was due or demanded j and were Con-
fcientlous in the payment thereof, as at their death they ufualiy be-
queathed a Soul-Sceat to their Parochial Piieft in lieu ofany Tithes
forgotten ; and at their Funerals caufed their bcfl Ox or Horfe to
be led with the Corps, and as a Mortuary or Oblation given to the
Priefl Inrecompence ofany Tithes, which pofllbly in their lifetime
might have been omitted to be paid. But in thefe latter Ages (not
regarding what S. Hierom fays j That Fraudare E^cckfiam e(t Sa-
cnlegium, {e) all Artinces imaginable are put in pra6tice to fabducSi:
the Tithes; and therefore to enforce the due payment thereof were l^.pgfj-j^ 'Z^^''
the Statutes of H. 8. and Ed.6. made and enafted (f). ■ i^j, ^ ' ^ '
(a.) Ccvarrwvias, with other Canonifls and Schoolmen, holds, (fj it. 2.7 H.
That by the /Aral Law the rate, or proportion of Tithesis not ne- ^- -'='•
ceffarlly to be the Tenth part of the Fruits ; which the more re- ^" ^' ^' ^'
ceived Opinion holds to be both Erroneous and Mifchievous; and ^ ^d (5. 13.
that by the Law of God and Nature, no Cuflom deviating from ...
K k k ^ the
350
(^)LevIt. 2 7»
30.
(h) Matth. 2 3
8-3 & Luke
II. 42.
?/) Mai. 3 . 8,
5, 1 0. vid.
Pro. 3.p, 10.
the exaft rate and proportion of the Tenth of the Fruits ought to
prevail any longer than by the free and mutual confent of Parfbn
and Parlfliioner; For which reafon it Is (uppoled, That the paying
of a Half-peny for a Lamb., or a Peny for a Calf^hy fuch as have un- .
der Seven in one year, Is now become an unreafonable Cuftora, In
regard the value of fuch Lambs and Calves is now raifed four times
higher, than in Ancient time?. This feems far remote from Tithes,
the very QuGtity whereof leems to be Moral, (g) rather than Cere-
monial or Judicial; and not only allowed or approved, but even
commanded by our Saviour himfeit : (h) Yea, by the very Law of
Nature ('which is the ground of the Moral Law, and long before
the Levitlcal) Tithes appear to be due, in that Abraham paid it to
Melchifedech : And God himlelf (who is the belt Interpreter of his
own Law) calls the detention of Tixh^s, Sacr Hedge, (i) And that
Command of Chrill, affirming that Tithes ought to be paid o^ all,
even to the very Herbs, fpoken by him at the period of the Levitt-
cal Law, ought not to be reftralned only to the Pr left- hood of ^^r-
ron: for it doth now remain in forceas to the Priefts under the Go(^
pel, as that other part of the Moral Law, Thou ji: alt not Heal, the
withholding of Tithes being exprefly interpreted Theft and Robbery
(k) Mai. Ibid, by the Prophet, (^k) And left it fhould be thought a meer Human
Intercft , or in the power of Man to alienate, God himfelf hath
vouchfafed to take Tithes upon his own account In his Minlfters
behalf Thefe Tithes could not be meerly Ceremonial (as iome
would have It) for they prefigure nothing, nor are they repealed
by anyone Text in the Gofpel,but reinforced asaforefald: fo that
whatever was commanded in the Old Teffcament, and grounded
on the Law of Nature , and being not repealed in the New, muit
yet ftand in force, as a duty of the Moral Law. And if it beObje-
6l;ed, That Tithes were not paid In the Primitive tim.es of the
Chrlftlan Church; the Reafon Is, not becaufe they were not then
due, but becaufe there was not then any fuch fetltd Order for
things of this or the like nature In the Church.
(3,) Wherefore all the Common obje6i:Ions made agalnfl the
payment of Tithes in the Chriftian Church may be reduced to one
of thefe Four; fi.) That our Saviour gave no Command to his
Apoftles to take Tithes, but rather on the contrary faid, Freely ye
have received, freely give AnfiVtYtt our Saviour (aith,Tl6e/e
things (fpeaking of Tithes) ought ye to have done. (I) And fays.
The workman ts worthy of his meat, (m) And St. Vaul fays. The
Labourer is worthy of his Reward. («) Where hath Chrift in toti-
dem verbis forbidden Sacriledge .-' Wilt thou therefore commit it,
becaufe he hath not in ter mints termmanttbus forbidden Itr" Thou
. that abhorreH Idois, doft thorn commit Sacriledge ? (0) (2.) Tithes
were
(I) Matth. 2 3
2. 3 . & Luke
1 1. 42.
{m) Mar. 1 c.
10.
in) I Tim. y.
18.
f»; Rom. 2. 2a
Of Tithes, 351
were not paid till about three hundred years after Chrift, a Tertul'
lian, Origen, and S. Cyprian do teftlfie. Anfiv. Thefe Fathers do
withal acknowledge, that during that time the Churches Mainte-
nance was the Peoples free Contribution \ which probably might
have continued to this day, had not that Contribution in procefs of
time turned into a Sacrilegious Century by Covetouftiefs, inftead of
a Commaded Decuma as a duty Morally enjoy ned. (^.) That
Tithes came firfi: into this Kingdom by the power of the. Pope, as
by Pope Adrian in the time o^Off'a ¥>\Y\goi Mercia, during Eng-
lands Heptarchy^ in An. 78(3. Anfw. Poflibly it might befb 9
what follows thencei' does a thing lawful in it (elf become unlawful,
becaufe a Pope enjoynsit? what if he had commanded Alms to be
given inftead of Tithe;? muft we therefore be neither honeft in pay-
ment of the one, nor charitable in giving the otherj becaufe there
was a Command of the Pope in the cafe? (4.) That <ty£thelfiane,
Edmond, Edgar, Canutus, and ^/^tbelwelfe. Kings of England^Of
dained the payment of Tithes meerly to pacifie their Confciences,
and thereby to make Atonement for their Blood-guilty Souls.——
Anfw. Admit it were Hiftorically true, yet the final Caufe of any
Action, or the End for which the thing is done, alters not that qua-
lity that is inherent naturally in the thing: A thing lawful in it felf
commanded for a wrong End, perverts the A6lion, not the thing :
if a man gives Alms thatthe Poor may be drunk, though that be no
Alms; yet it doth not render Alms as unlawful, nor alter that
quality of Charity which is infeparable from Alms.
(4.) Tithes Anciently were Fourfold, as (l) That which the
People paid the Levites. (/>) (^) That which the Levites thence (.p) Keron.fup,
paid to the Pritfts. {cf) ( 3) That which the Jews referved for ^^^'^•'4- ly.
Expence in their Solemn Fcafts, when they went to the Tabernacle / v j^''"*' '
or Temple, {r) (4) A Third years Tenth, which was then laid z^. ' "*"
up for the Levite and the Poor, (jj Thefirllof thefc is held a Na- (?•) Dent. 14.
turaljMoral,and Divine Tribute j the lecond and third Ceremonial; ^3-
the fourth Judicial. The Jejvs had al(b their Theruma, which was ^^^ ^^"^- H*
not properly Tithe, but a fccond kind of Firft-Fruits : There were
two kinds hereof, the one called the Great Ihtruma, the exaft
quantify whereof was not defined by Mofes\ but the Ancient Law-
yers determined, that it might not belefsthan the forti.th, fiftieth,
or at leaftrhefixtieth part of the kinds already drefs'd and prepared
as Wheat fanned, Ojl and Wine, Corn in the Ear taken from the
heap and given to the Priefts. (f) The other was the LefTer Theru- U) Hierott.
m^, which wasjthat when the former was takenaway for the Priefts, "i';7«i*^'
the refl of th.e Heap wasTithed for the Le'vite, the tenth part where-
of the Levites gave to the Priefts, which was called the l\the of
the Tithe, or the Tbtri-tma of the Tithe.
(5)B,;caure
2^2 Of Tithes*
(^.) Becaufe the Law of Mofes hath been divided into Three
parts, 'viz,. Moral, JudiciaU and Ceremonial, feme of the School-
men have thence conceived, That Tz^iiej admit ti-ie like divifion,
whereof the Moral part was only a neceilary Maintenance for the
Minifter, and therefore natural and perpetual: The Judicial part
was the number of Ten, as fit only for the Jctvs^ and therefore
pofitive and remotcve : The Ceremonial part was the Myftery con-
tained in this Number of Ten, which being (as they taught) but a
fhadow only, was vanifhed and abolifh'd with the Law itfelf; and
thence inferred, that the ^ot'tty or precife number of Ten being
taken away by reafonof the Ceremony, a competency now only re-
mains for the Minifter out of the Tithes : This conceit hath occa-
fioned no fmall prejudice to the Church, although it hath no more
probability of truth in it, than that whereon it is grounded, viz-.
T'hat the Number of Ten is a type of Cbrifi, and that the infeiour
Digits do fignifie the People. Levi himfelf paid Tirhes to the firft
Prieft we ever read of, that is, he paid them to Abraham^ which
being urged by the Apoftle againft the Le'vitical Ceremonies, ar-
gues, that they are more than meerly Levitical and Ceremonial ;
indeed if weconhder their affignmcntto Lews Tribe,ti)ey are fuch,
but not otherwife. T'he Sabbath and T^Z/y^j were both before the
(«) GcH. a, 5. Law in their very Numbers refpe£lively, {u) and were but repeated
& 14. 20. ^y iVf<?/f J under the Law, becaufe they had been approved of God
& z8. zz. before the Law in the felt-lame Numbers, The Sabbath is faid to
' ^' have a Moral and a Ceremonial part : The Moral is perpetual and
unalterable, which is, that God fhould have a Seventh day; the Ce-
remonial being Typical of our Reft in Heaven, is only pofitive, and
not fb unalterable, but that it might be (as it is) changed from the
Seventh day of the Creation, to the Seventh alter our Saviour's
Refurrection : So Tithes, they alio have a Natural and a Pofitive
part ; the Natural is permanent and unalterable, which is, that
God hath relerved to himfelf a Tenth of the increafe,&c. for the
Maintenance of his Minifters ; in which fenfe immediately after
the difTolution of the Jews policy, the Chriftians of the Primitive
Church, as foon, as they could get any outv/ard form of a Church,
and peace from Perfecution, received it in the very Quotitj : the
Pofitive is, That the Lord annexed thofe Tithes by Mo[es_ to the
Priefts and Levites for their maintenance, during the difpenfation
of the Myfferies under the Law, and therefore changed by the
Chriftians in the Primitive Church to the Chriftian Ecclefiafticks
(w) Dr Rid- C'^)' f<^fh^t how this Quotity can be changed into a Competency,
lefs View. feems neither demonftrable nor warrantable by the Word of God,
cap. 14, SciSt. 7. but that the Quotitj ought to remain as a perpetual Right due ro
God and his Church. And if any fhall argue, that Tithes are not
to
Of Tithes. 353
to be paid or required in a Proteftant Church, becaufe they have
been ever fo upheld in the Church o^ Rome ; fuch may as well ar-
gue, they ought not to be paid in a Chrillian Church, becaufe they
ax paid to Alahumetan Princes, for (b they are, and that becau/e
they were Priefls; for every Husbandman is bound to pay for 7l"i-
bute the Tenth part of all his Corn to the Patriarch for the ufe of
the Prince, the relief of Impotent people, and Widows, and for
maintenance of War againft the Enemy. Turch. Tilgr.lib.6.cap,i,
§. '^.f. 80 g. nu. 10.
(9.J Tvv'^^j, which anciently were meerly Ecclefiaftical, are now
made Ttrnporal Inheritances ; therefore are they Ajjets in the
hands of the Heir^the Wife endowed of them, and the Tenant by
the Courrefe fhall hold them, (x) 7'hey are not grantable for life, W ^°- ' f-'A.
or years, or for a longer term than one year, but by Deed. (^) T'hey n"m'"^' ^^^°
cannot be extingiiifhed by aFeoflfment of the Land, nor pafs by a Hob.-^z^" ^ '^j
Devife of Lands, with all profits and commodities thereto belong- Co. 2. 4. &
ing ; and yet may be exchanged for Temporal Inheritances, {zj) Dod. of M-
Anciently and at the Common Law there were none qualified to '^"^lo"^-
receive them, but either an Ecclefiaftical perfon, or a mixt perfbn /I ^^^^^•'7'5'.
as the King. They are not extin6l by then- conqing into any hands, r^i jj^* ^' ' ^''
but of the FiuCnn himfelf (a) And that which is given in lieu of (^) Hob. 42/
them is turned into a Spiritual Fee. {b) It is not paid more than
once for oneand the fame thing in one and the fame year, and that
only for the neat and clear profit of the /thing T/z^^/'/e. (c) jff'^-^Poph- 197-
muft be paid in kind, if there be Corn now where Wood grew
before, or Wood planted now where Woodlands formerly were.
And the Law allows the Parlbn a convenient time to remove the
Tithes ; which circumflance of "Time and the convenience thereof
is triable by a Jury; and if the Parfbn exceed the Time, the Pa-
rifhioner may have his A6lion againft him as a Ti-efpaffer ab initto
(d). And feme conceive, that a Parifhioner is not bound to give {d) Bu]/lr. 3,
the Parfbn notice when he doth fet forth his "tithe, (e) By' the 3 3 ^.
Civil Law the Parifhioner ought to give the Parfbn Notice when ^^^- i'^9-
the Tithes are fet forth ; but it hath been Adjudged, that the Com- %)^^\'^r.^
mon Law doth not io oblige a man. (f) But a feverance of Nine \n Soenrrr s"^ '
parts from the Tenth part there muft be, for fuch feverance is (b Cafe.
neceffary , and in a kind fo effential to Tithes^ that they are not
due, nor is it Tithe within the Statute of i Ed. 6. until fuch Seve-
rance be made. Yet the Parfbn may Grant his Tithes growing up-
on the Land, before Severance ; which ought to be made by the
Owner of the Land : for though'the property of Tithes fet out by
the Owner of the Land belongs to tlie Parfon, yet \z is otherwiie
if they be fet out by a Stranger, (g) And in cafe the Land be not
in any Parifhj then the King lliall hiwe the Tithe thereof by his
Pi'cro-
354, ^/ '^^^'^^
Prerogative and by theCuftom oi England. (A) But where Land'
-ih) Hill. 1+. \^ themfelves TIthable, are not manured or ploughed, (pecially in
?^* *"(>/?"' F^J"'^^^^ ^^ ^^^^ Parfbn, in fuch cafe he may notwithdanding Sue
vZc Glover, the Occupier thereof in the Spiritual Court t"or the Tithes of that
Roll. Rep. Land, (i) But If the Parilhioner duly fet forth and fervers theTirhe
(0 Vid. Hugh in convenient time, and after Dammage happen to him by the Par-
Abridg. 1 8p. f^j^^ ^^^ taking the fame away In like convenient time, in that ca(c
Tk) Dr BridK- theParifliioner may have hisAdion on theCafe againfl: the Parfon (L)
man's Cafe! ' (jO The Common Law of this Realm takes notice of Tithes by
Noy, Rep. 31. the word [_Difmes'](Decim£) of the French {Declmes) fignifying
& Pafch. 20. Tithe, or the Tenth part of the Annual Fruits, either of the
Jac. B R. R®t. Earth, or of Beafts, or Mans labour and induftry, due unto God,
i86.& Latch. ^^^ confequently to him that is of the Lord's Lot, and hath his
fliare by his fpecial appointment : ItfigniEcth alio the Tenths of
all Spiritual Livings, yearly given to the Prince, called a perpetual
0) 2 & 3 Ed ^-^Z^^' W which anciently were paid to the Pope, until Popet/r-
<5. c. I J. * ^^« gave them to K. Richard the Second, to aid him againft Charles
the French King, and fuck others as upheld Clement iheSeventb a-
(wj) Pol. Virg. gainft him as aforefaid. {m) It fignifieth likevvile a Tribute levied of
Hift. Jngl. the Temporalty. (n) But here It is to be underftood, aj ^ta pars
lib. 20. cmnit4m bonorum licite cfuAfitorum^ Deo Divina Infiitutione debita ;
(«j HolmOi. ^hjch though according to i\\q Canon Law is a Tenth of Annual
f. I ii'. * ^^'^ lawful Encreafe commanded to be paid to the Sons of Levi for
their maintenance In confideration of their Miniflry; yet at the
Common Law it is anEcckilaftical Inheritance collateral to the E'
ftate of the Land, and of its own nature due only to Ecclefiaftlcal
<9) Co.ii. 13. perfbns by the Eccleiiaftical Laws.(0 ThePra6Lice whereof never
b. met with any confiderable interruption in any Age, until Charles
MarteWs Sacrilegious InFeudarlons of Tithes, about the year 65:0.
which ufhered in fuch a Prelldent into the Chriftian World,as could
never to this day grow obfblete and outofufe. Norwithflanding
from the beginning it was not fo, nor d;d any Lay-perfbns pretend to
Tithes originally, nor legally till the Statutes of Diffolution of Ab-
feies made them capable thereof, whereby the Tithes appropriated
to fuch Houfes of Religion as were diflblved became a Lay-Fee, and
ip) Co. z. par. Suable by the Laity in the King's Ecclejjaltical Courts.
by LuJlo^!' C^) Where In the Books of the Common Law It Is Reported,
7 E. 3. s- by That before the Council of Z,cj^<?r^7?, every man might give hisTithes
Parve. Mkh. to what Church he pleaied, and might have bellowed them upon
I s Jac. in C.B. •what perfbn he thought be/l; there it is alfb afTerted for reafbn,Thac
s/ji/eand before that Council there were noPariihes, nor Parlfh-Prlelh that
Hob. 196. ace. could claim them. But by a Canon made in that Council,cvery man
Hugh. Abr. Is fince compellable to pay his Tithes to the Paribn or Vicar of that
yer. Dijmt-s. PariOi where theTithes arife.(p} Here may arife a queftion,whcther
there
Of Tithes. 3 55
there were not Paridies long before any Council at Later an ? For
admitting that the xd Lateran Council was held in the year 1 1 20.
as SXho.Ridley computes it (^), or that the general Council of L a- (^) View. par.
teran was held in the year f 1 79,35 Sir Sir-ffon Degge calculates it (rj, 3 '•■^P-4- S-J*
yet there feems to be a divifion into Parifhes fbme Cen turies of years l!'^ i^^^_ "-'^ ^
before either of thefe : For it is /aid,That Cities and Countries were p./l;' ^^^'~'
divided into feveral Parifhes by an Ordinance of P. Dicnjp.m about
the year ^G6(s)^zr\d from him derived into this and other Realms: is) RidJ. ibid.
Alfb,that Ecclefiaftical perfbns firft in this Kingdom made DIvifions par.s.cap.:.
of Parllhesjas appears by our own Chronicles(/- j, and that the firft ^'^■''^- 4- .
praftlce thereof came from Honor ms the ^th Archbilhop of ^^»-Ecddfchriil
terbury after Augujtim, who died in the year 6c)'^(h). And fuch as cant.'stov.
have followed the couvfe of Antiquity in this matter, conceive that Ridl ibid,
the original of Parifhes had its precedent from the pra6lIceof fbme («^ Ridi.ibid.
ancient Roman Bifhops,it being fasfome would have it) recorded In
the Pontifical oi DawaJ'us; but mjnaj^afius^s Bihliotbec.it is found.
That when Peter had appointed and ordained Priefl:s,&c.and Cletus
had reduced them to a certain nun)her,V.Euarifia afligned to each
of them hisParilh ; and as to the time when thofePariihes wereaP
figrCd hyEuarifi,\t mull be about the beginning of the id Centurj,
"W^icli was many Centuries before the G.of Lateran, as alio was the
pra6lice thereof here In England by Honorimy2iS aforefald, the truth
whereof is approved by Cambden^wx. Cavendumyd^c.fa.\th Marfil in
his BookDtf Red.Eccl.c.l x.heedmuft be taken as to the word Pari[hy
for It Is equivocal, having various acceptations, as fbmetimcs when
nothing Is named but aParifii,the wholeDIocefsisunderfl:ood,which
notion of the word often occurs In theCouncils; In which (enfe Bar-
batiafpzkt2. wide wordfor thePopeinhIsTr^^.i^/?r^7?.Or^.when
he {2\d,T/jat m ref^e^l of his HoUnefis^the whole World was but. one
PariJliSomet'imes a Parifhis taken fordich a part of the Dioce/s, as
was a/lign'd to fbme Priefl,arbitrarily fent and maintained by the
Bifhop;to whom fuch aParifh paid all their dues,and he to hisClergy,
about which time this cuftom was Introduced, that all Church-dues
fhould be at theBifh.difpofal to be divided into 4 portions, whereof he
fliould have i part for himfelf,another for his Clergy,a ; for thePoor
andStrangers,and the 4 to be referved to theParllhioners for the re-
pairing of Churches,the colle6lion of which dues was committed to
the care of the ChorepfSrom whkh^^adripartite d'mCion probably
came that cuftom whereby the Bllhop of every Diocefs might before
the C.oi Lateran make diftribution of theTithes within his Diocefs,
where he thought convenient to Spiritual perfons, for their neceftary
maintenance(x)If the original of aP^ri/Jnn the 2 former acceptations ^^3 ^^^^, HbJ
were a device of the ancient iiCTW.B.and from them derived to other '"'^^P-^ •
Nations, then probably from the inconvenlencies thereof ml^ht be
L 1 1 the
55^ Of Tithes.
the beginning of a Parifh as itis taken for fucha partof the Diolees,
as is limited to fome Relldentiary Incumbent, allowed by the Bi-
(hop, and maintained by the Church-dues In his own Rlghtj which
conficleration of a Parifh feems moft of all agreeable with thof?
which we now have, and were in ufe with us before Edgars daies,
as appears by the Saxon Laws of that time.
(9.) The Ancient Kings and Sovereign Princes of this Realm,.
Vid. Edgar s j^^^^^ before and fmce the Conqueft, have ever made fpecial Provi-
awscap. . ^,^^ ^^^ ^^^ ^^^ payment of Tithes unto the Church, and that ever
fince there was any Church- Government in this Land^ witneftthat
Law made before the Conqueft by King zAithlefiane, That every
man fhould pay his Tithe in manner as jF<?c^^did,that is, o/^//r/6<7f
God jhould give hiw. The like did King Edgar and King Edmund
command upon pain of Excommunication. And about the Seventh
Century Ina King of the WeH-Saxons made a Law, That the
Cburch-Sceat be paid ^iMartkmafs, on pain of paying twelve times
as much in cafe of Refulal : this Church- fceat^ Fleta interpreteth
Church-feed, and therefore calls it Corta menjura hladi Triticif ^c.
Others read Church-fcet , that is the Church-jiwt or Church-due:
Alio the faid King i^thelHane in the Ninth Century made a Law
by the Advice ot Walfehelme his Archbllhop , and his other Bi-
ihops,CoWffjandi?jg all his Reeves throughout all his Kingdcm in the
Lords name, end of all Samts, that in the fir ft flace they fay the
Tithe of his own Hevenuesj as well in Living Catiel as the yearly
Fruits. Likewife King £<^w«»i/ at a Synod holdenin Lo»<^o», at
which Oda and Wulftan Archblfhops, and many other Bifiiops were
prcrent,made aLaw,Cf?ww^»^;»^ allChriflianrKen by their Chrifii-
anity to fay Tithes^ Church-fceat, and Alms-fee) if any refufe to
do it J let him be accurfed. This Alms-fee or Alms-mony was tharj>
which was called th^ Peterpejice) for when Ina the Wefi-Saxon King
went in Pilgrimage to Rome^ he made it a Law to his Subje6ls,Thac
every Houie fhould pay a peny to the Pope ; and this was to be
tendred at St. Peters- tide, as appears by Edgars Laws. nu. 4. In
the Laws alfo of King Edgar it was Decreed in the firll place,That
Gods Church fhould have all her Rights , and that Qvery man,
Ihould pay his Tithes to the Elder Minifter (or Mother^ Church)
where he heareth the Word, c^^. i. of JE^^^r's Laws. And In the
Eighth Chapter of King Knutts L,aw it Is Ordained, That care be
taken rightly to pay Gods Rights every year,w2i. the Plough- Arms
fifteen Nights after Eafier, the Tithe of young Cattel by Whitfon-
tide, and the Fruits of the Earth by Allhallontide-, otherwise, the
Kings Reeve, and the BIfllop raa^ take the Tenth part whether he
will or no, and give It to the Minifter ^hereunto It belongetli.
Alfo by the .4aws of ^dw^rd the Confefforj w«. 8. d^ 5. it was
Of Tithes, 257
Decreed particularly, that Tithes fhould be duly paid De Garba^
Grege Ecfuaruni, Tullis, Vaccis, Vitulis^ Cafeo, LaS^e, Vellis, For-
celltSf Apibus, BgJco, Prato, Aquisy Molmdmis, Parcis, Fivariisy Hoveden, pir.
Pifcariis, Virgultis^ Hortis^ Negotionibus, in a word, omnibus rebus 2-cap.</^Z>(?<'/w.
quas dederit Dominus^ which Decree was afterwards ratified by the ^'^^^^f'
Cbn<jueror. Afterwards King Edward the Fift at the Petition of
the Clergy, eftabliflied the Articles of the Clergy, which his Son
Ed. 2. Confirmed by his Letters Patents under the Great Seal, and
by Ccnfent of Parliament , at the Petition of the Clergy in the
Ninth yearof h's Reign. And by the Statute of I R. i.cap. 14^
it is Acknowledged, That the Cognizance of Tithes of right doth,
and of Ancient time was wont to pertain to the Spiritual Courr.
Alfo the Ciftercians, who had purchafed Bulls from the Pope to be i j- Ed, 3.
difcharged ot Tithes, in the Second year of H. 4. were by A61; of ^ H. 4, i f.
Parliament after reduced to the ftate they were in before. And \n
the Fifth year of H. 4. it was Ordered , That fuch as held Lands
belonging to any Friers- Aliens, fhould pay all manner of Tithes to
the Parfbns and Vicars of the Parifhes wherein the fame were, not-
withftanding their being (eized into tPie Kings hands, or any Prohi-
bition to the contrary : For before the diflblution of Monafteries,
&c. by King H. 8. Lay-men were not capable thereof, nor indeed
after the DifTolutionjnotwithftandingthe Statuteof xj H.2>. c, 20.
could the people be well brought to pay their Tithes to the Lay-
Purchafers thereof, not qualified to fjc for the fame, until the Sta-
tute of 31 H. 8. c. 7. enabled them to Convent the Refufers before
the Ordinary or other competent Judge, according to the Ecclefi-
afticalLaws, without theReferve of any cognizance for the Tem-
poral Judge therein, otherwife than as to what refers to the Inhe-
ritance or Freehold of fuch Tithes, or in cafe of difTeifin thereof j
which was not only ratified and confirmed by a fubfequent Statute
rhade in the time of Ed-wardi\it Sixth, but it was al(b then Ena-
6led, That the Tithes fhould be paid as the Ufage or Cuflom had
been within forty years next before, and that under certain penal-
ties and forfeitures in cafe of detention or rubtra(3:ion (and of tre-
ble Dammjjiges in fbme cafes) the party fb fubtraiSling to be profe-
cuted in the Spiritual Court according to the Kings Ecclefiaflical
Laws.
(10.) 'i^xx Simon De^^^ in his late ufeful Treaufe, entituled Tht
Pardons Counjdlor, fa'', z. or Laii^ of Tithes, cap. 1. difcovers a vul-
gar Error touchifig the Original Settlement of the Parochial Right lo H. 7. 18.
of Tithes : For whereas it is frequently faid in the Books of the t^ \^' ^'
Common Law^ That before the General Council of Lateran every ^/" '" '
one was at liberty to give hisTithes to whatSpiritual orEcclefiaftical Co. 2. 44. b.
or Religious perfbn he pleafed, and that the Parochial Right thereof Dyer 84, &c.
L 1 1 2 was
358 Of Tithes.
was fttled by the fald Council j he fays, there is not any Canon of
Sdd. Hift. De- that Council to any fuch purpole, whereby the Parochial right of
cim. 231. Tithes was fetled : Nor could it then be, for that thefaid Council
Co. 2. par.Inft. ^^g jj^ ^^^ 1 179- but the Parochial Right of Tithes was notfetled
^ * till the year iioo, and then not by any Canon, but by a Decretal
EpilHeof Pope Innocent the Third, a Brief whereof he there inferts
out of Wlx. Selden and Sir Ed. Coke. If this were an Error in them,
it was fo alfo in Lindwood, c. locat. ^ conduB. 'verb, portion. But
poflibly not fuch an Error in either as is conceived: for whether the
Canon for the letling of Parochial Right of Tithes^va2.dt in the Coun-
cil of Lio«/,i 174. were an Original Decree, or only a Confirmation
of fbrae former Canon to the fame effect or not, clear it is, that the
faid Decretal EpiftleofP.7«wocewf g. obliged only the Province of
Canterbury, to whofe Archb. it was direfted.- Lindw. c, nuper. Ab-
bates^de Dectm. And in the Second Lateran Council, holden An.
I lio.(beingnigh6o years before that abovefaidj it was Decreed by
Sir Tho. Ridley's thefaid Innocent '^.Thzt theRelig^ious perfbnSjX'is:,. the CijtertianSf
View of, &c. Hofpit alters, Templers, & thoie of S. Johns of Jerufalem f which by
par. 3.C. 4.Seit. ^j^^ Popes P<j/c^/& Adrian were exempted from payment of Tithes)
fhould pay the lame unto the Parochial Incumbents,whereby a Pa-
rochial Right of Tithes is (etled by a Lateran CouncW.
(11.) At the Common Law its (eeras a Parfbn cannot make a
r frj.- 1 Leafe Varol of his Tithes^ but may difcharge them per parol ; for in
pei parol' ^^^ Bellamy s Qiik aga'mik Balthrop k was Ruled by Dcderidge^Jones^.
& Whit lock Juftices, That where the Dtfendant in oSTrover & Con-
Tjcrfion of certain Loads ot Fetchc.%jullihed under the Lard C/^r^ by
a Demife per parol for Tithes of Grain for one year made in Aprtl^.
that the Leafe was not good,.bjt altogether void; but theParfbn
may difcharge the Parifhioner of Tithes per parol or Leafe the Re-
(/j) Mich. 2. 6tory confilling of Glebe and Tithes per parol for years {a).
Car. Rot. 175. (ii.)fn SkeltcnsC^fe again it the Lady -^;>if it was faid that it
^ifuhfcp ^^^ Adjudged A4ich. 3 4 e^ 5 > £//«'. That a perpetual union of the
Littch Rep. Parfbnage, and the Land charged, is a fufficient difcharge of the
Tithes, where Tithes, and a Prefcription may be well enough to be difcliarfied of
difchm-gedby the payment of Tithes, as it appears by a Cafe put in the Archbifhop
^»j^tyoj Pof. o( CanterburfsCaCcyCoke lib.l.G. Crcuk Counfel e contra conceived
jejjion. ^^^ ^ perpetual Unity was no perpetual difcharge, and faid there
was no Judgment, given in the Cafe cited before j he alfb cited
10 H.7. or 6. where the manner or Tithing is fet down; he alfb
cited the Bifhop ot fVinchefier'sCzW, Coke.lib. 1. alfb the Prior of
D. to be Refblvcd in 40 £//2:.. That a Copyholder may Prefcribeto.
be discharged o^ Tithes by pleading. That he was always Tenant
by Copy to a Spiritual Corporation: and he faid, That it was Ad-
judged in Sheddington\ Cafe, That If a man Prefcribe to be dif^-
charged
Of Tithes, 3S9
charged of payment of Tithes by reafon of payment of another
kind ofr..^., that this isnotgoodW. ., • p ... ^t^y"""^
flgOTheParfon of ^Covenanted with one of his Panfliioners *^e L,ady
that he fhould pay no Tithes, for which the Parilhioner Covenant- ^anes Rep.'
eth to pay to the Parfon a certain Annual Sum of mony, and after-
wards the Tithes not being paid, the Parlon fued him in the Eccle- ^ Parfon Ccve-
fiaftical Court, and the other prayed a Prohibition : And it was ngnts, that his
agreed ,That if no Intereft o^tithes pafs,but a bare Covenant,then ^^nj^z^^^r
the party who is fued for the Tithes hath no remedy, but a Writ of ^^^^/'^Z «"
Coyenant: And the better opinion of the Court in this Cafe was,That
this was a bare Covenant,and that no Intereft in the Tithes pafs [c), ^'.^ pafch. i^,
(JA.) InlVarners Cafeagainfl ^^rminthe Ecclefiaftical Court, jac. B. R.
it was faid oi Richardfon, That before the Stat, of £^.6 the proper ^^ ^
Suit (or Tithes was there, and if they allowed not one Witnefs to Gn^^^^^n ^tne
prove payment, a Prohibition fhall be granted. And he put Morns ^^^^^ ^^^
^ndEaton'sCaCe\ntheB\(hopo(mnchefier-'s Cafe; where it was
Ruled, if the Spiritual Court will not allow that Plea, which is
good in our Law, a Prohibition lies, as In cafe of Tithes (d), (d) Warner a-
Shearing- time afterwards ; as where Tithe is paid for the Cuttings
of Grafs, it fliall not be afterwards paid for the After-math. It
I'eemed otherwlfe to Doderidge and Jones, becaufe It is for the fame
thing there, but here the Par(6n hath no recompencefor the Wool.
And Jones faid, That if the Parlfhloner fell Sheep, the Parfon fhall
have allowance of the Tithes thereof after the fhearing: and upon
this point aProhlbition was denied. Secondly,thereisa«Cuftom, that
if a Parifhioner have three Calves he fhall pay a penny for the Tithe
thereof^ Iff even Calves, then one Calf. The Parfon fued for one 7^,;,^.^^;^^.,
Calf, becaufe the Parifhioner had three onz year, and four aiiother,
and for that he had no Tithe for the firfb three. And thereupon a
Prohibition was granted (^ ). (a) Anmymus,
(16.) In Huddle ft on zndi Hills Caf^ it was faid, That it a man ^^^^^^ ^^^
Sue In the Ecclefiaftical Court for Tithes o( Headlands, the Defen- Headlands.
dantmayhaveaPi-ohIbitIon:but he ought then to fuggeft. That
they are but fmall Headlands, and that there is a Cuftom ot Dif. Tithe-Wool
charge in confideratlon that he paid Tithes in kind of Meadows. And {h)mddUjkn
In this call Williams faid, That if a man keep Sheep in one Parifh J"^J^^^^^ ^•
until (hearing time, and then fell them Into another Panfh, m this ^^^^^^^ ^J;^^^^
cafe the Vendee fhall pay the Ttth-wool to the Parrfh where they .^^^^^^^^^ ,„
were depaftured In the greater part of the rime of the growing of ^mall Tithes.
the Wool (b) And In the Caie of one Nicholas and IV. Ward it was u) Ward's C.
agreed, That r^fk Lamb and Wool was included within Small Poph. Rep.
Tithes{cy 07.)!^
560
Tith.Sheep.
Of Tithes
(d) WGchael
2 Car. B. R.
Pop^ Rej).
Tithes for a Ri
ding Nag.
(e) Ttin. 1 s.
Jac. B. R.
Larkifig and
IVzld's Cafe.
Poph.Rep.
Tithes of Wool
and-Lamk
Wher^fi'vcral
ProMbitions
way be granted
in the fameCafe
and where not.
(17.) In Banco Regis a Prohibition was prayed, becaufe a Parfon
had Libelled in the Ecclefiaftical Court for the tenth part of a Bar
gam of Sheep, which had depaftured in the Parift from Michaelmas
to Lady^day: and the party furmifed, that he would pay a Tenth
of the Wool of them,aGcording to the Culloni of the Parift But
the Prohibition was denied; ^t ^s Doderidg-e Tuftice faid Bv thJ<j
way the Parfon ftiall be defrauded of all, if he fhall not have his
Recompence.for now the Sheep are gon to another Parifh, and he
^nnot have any Wool at this time, becaufe it was not the time of
ihetvmg.Notayfer VVhitlock, de ammaUbus inutMus.thePm-fon
fball have the Tenth part of the Bargain for Depafturing, as Hor-
fes^ Oxen^SicBut de ammalfhus Utilil;us,he (h-dll have the; Tithe in
fpeek, as Cows, Sheep, &c. (d).
(18.) The Reaor of the Church of D. Libelled in the Ecclefi-
aftical Court for the Tithes of a Riding-Nag , where the Cafe
■ was. That a man let his Land, referving the running of a Horfe
for (ome time, when he had occafion to ufe him there • The De-
^^"^^"V f^^^^^ ^^'' "^^"^'" ^" f ^e Co^'-t by his Council, and prayed
a Prohibition, and abetts that for the fame Land in which the Horfe
went, he paid Tithes. And by the Court, nigh London, a man will
take 100 or 200 Horfes to Grafs; now he fhall pay Tithes for
theni, otherwife the Parfon fhall be defeated. But in this Cafe
if the Defendant alledge and prove that it was a Nag for labour'
and not for profit, a Prohibition lies (e). '
(19.) In the Cafe oi Bowry SLgam&: PFallingtonyf/here IV. had
Libelled in the Ecclefiaftical Court againft B. for the Tithes of
Wool and Lamb, and B. upon fuggeftion of a Modus Decimandi
obtained a Prohibition, and had an Attachment, and declared upon
It, and are at iffue upon the Modus, which is found for the De^n-
dant, and Confultation granted ; whereupon Judgment was given
m the Eccleiiaftical Court againft J5ow^, upon which B. appealed
and prayed anew Prohibition; and Ncy moved for a Confultation'
becaufe that a Prohibition and an Attachment upon it were but one
buit, tor the Contempt of the party in bringing his Suit in another
Court, and tranflating this from the Kings Court, and when it is
once Tried for the Defendant, the fame thing fhall not be Tried a-
gain. JNJote, That in this cafe upon the Statute oi Ko E 0 a W
was agreed by the Court, Tliat a Prohibition awarded, and after^
wards ConJultation granted, that upon the fame Libel no Prohibi-
tion IhaH be granted again; but if there be an Appeal In this Cafe,
then a Prohibition may be granted , but with thefe differences,
( i; It he that Appeals pray the Prohibition, there he fhall not
have it ; for then Suits fhall be deferred tn mfinitum in the Eccle-
fiaftical Courts. (2) if the Prohibition and Confultation were up-
on
Of Tithes.
501
on tJie body of the matter, and thefubftance of ir, for other wik he ^
{hall be put many times to try the fame matter (f). (•/) paf^h ,
(20.) The Lord Rich was feized of Hadley Park, and of all the Car. B. r.' ''
Tithes thereof, and payed for the Tithes but one Buck in the Sum- ^"'^''y ^^rf.
mer, and a Doe in the Winter for 30 years paft. The Park was ^^""^^'"S^o" '^"^
difparked and turned into arable Land, and the Parfon would not topl^tt"^
receive this Fee-Buck and Doe, but would have Tith-Corn, and " ^^'
thereupon fued in the Ecclefiaftical Court, and he brought a Pro^ Ttths of Park,
hibition. And Catlin faid. That he need not pay other Tithes but
Buck and Doej for although they be not Tithable, yet may they Buck md Doe
be paid by Compofition, and he may not take them, but they arc to ''otTuhable.
be delivered to him; And in like manner Partridges and Pheafants in ^^"^ P<irtrid-
a Garden are not Tithable, yet may they be paid in lieu of Tithes f ""^ ^^7'
and fhall be brought dead to the Parfon; and although there benoil/l' "''
Park, yet may he give a Buck out of another Park, and perhaos it
may be made a Park again {g). ' ^^j THn. 3 ,.
(21.) The Cafe was, A Church in which there had been a Par- Eliz. poft
fon and Vicar time out of mind, and the Parfon ufed to have the ^'"'^'' ^"^
Great Tithes, and the Vicar the Small, and for the fpace of forty j^'^'^'i'"'' ^af*,
years lafl: paft, it was proved that the Parfon had Tithes paid him "*' ^^*
out of a Field of twenty acres of Corn, and now the Field is fo wed
withSaffron, and the Vicar fued for the Tithes of Saffron in the
Ecclefiaftical Court, and the Parfon had a Prohibition. Cch, I Titheofs^Bm
conceive the Parfon fhall have Tithes, for by the Statute of ^ H.
6. it is Enafted, That Tithes fHall be paid as hath been ufed thelali
foity years, and this hath been always Tithable to the Parfon, and
although the ground be otherwife employed, yet the Parfon fhall
have the Tithes: And foic was in Norfolk in the cafe of a Park,
where the Parfon preferibcd pro moJo Decimandi to be pcild ; j. ^I,
for all Tithes arifing out of 'the faid Park, and although the Park
was afterwards converted to Arable, yet no other Tirhes fhall be
paid. Vo^harn^ It hath been adjudged otherwife in Wrotljs Cafe
in the Exchequer. But the Law is clearly a-s hath been faid; and
the difference is, when the Prefcription is to pay fb much mony p^ff ''•^''
for all Tithes, or when the Prefcription is to pay a Shoulder of e- vem^on mt
very Buck, or a Doe at Chnflmar, for there if the Park be dif- TitbahU,
parked Tithes fhall be paid, for Tithes are- not due for Venifon.and
therefore, they are not Tithes m fpecie. And I conceive, 'thsLt^"^^""" fi"^^^
Tithes of Saffron-heads fhall be comprehended under Small Tithes )Jifp\u
and although theTkhes of this Field have been paid to the Parfon, eL&'k,
yet it being converted ta another ufe,, whereof no grofs Tithes da The Cafe of
come, the Vicar (hall have the Tithe*;.: And fb if arable Land be-^^^ Dean and
converted into an- Orchard,.tha Vicar uv^l have Tithes'oFihc Ap- ^^hapter of
pies; and fb if the Orchard. be- changed- to ;Ai-^k:, the Parlonik'lirS^l'K^™,
h^vc Tkhcs. (^odFenner sonce£n0), (2 a). In ' ^
3^2 Of ^^^'''''
(zi )In one Ha7i^kin*s Cafe,Libel was in the EcdefialHcal Court
for Tithes for Lambs for ftven years: And there he proved payment
by one Witnefs, and a Prohibition was granted for Non-allowance
TTZrra '^S^(51ilelat. of x El6.c.i 5. for fetting out of Tlthes,the
X^ep Cafe was this: Corn wasfet out for Tithes, and the 0^vner of the
Land took the Corn Da^mge fefant; but m the Declaration it
Tithe.Corn. is not fhewn how /ow^ the Corn remained on the ground.And by the
Court it is not good, inafiiiuch as it doth not appear that the Owner
of the Land had any Damage at all,for he doth not (hew^m/^w^
the Corn remained on the ground. And the ufual courfe m fuch
cafes is if Tithe be fet out, and the Parfon take it not away in
due time,the party (hall have an Aftionon the Cafe. By the Court,
a man cannot diftrain S hecks of Corn, but he may diftrain a 5?^^^
Damage fefant. But in this cafe it is not (hewn how ong it re-
mained on the ground,and therefore it doth not appear that he was
damnified. And (b after the Tithe is clearly fet out, the Parfon may
by the Statute have an Aftion of Trerpafs,if any take them away ;
but if only a meer Stranger fet out the Tithe, that fettles no pro-
perty In the Parfon , fo as that he cannot have any Adtion tor the
(^)Hni. I Car. j^j^ing, thereof away (a).
i.B.R. stihmn , ^ . j^ ^^^^^^ ^^^^^ ^^ Noy,That if Two perfons have portions
llSr of Tkhes by halves in oneParifh, the Stat, of £/ 6. that appoints
Tithes to be fet out, doth notin that cafe obhge the PanOiioner to
divide the Tithes by halves,and to fet out their parts fingly ; butthc
Pariihioner ought only to fet out the Tenth, infomuch that if the
(h) Cafe Stil. Tithe be of oneLamb,thc Pariihioner cannot divide it W And it
Liverf. C..-hath been Adjudg'd,that the Pariihioner IS not bound to divide the
'»f''. Tithe into Moieties, but the Parfons fhall divide it between them-
Latch.Rep. Hives (^)
(c) Dia.Caf. , ^ ^ ^ furmized againft a Libel for Tithe-Sheaves, that the
LtfozX Pariflfionersire at the charges to bindtheCorn in Sheaves,and for
the better dividing thereof they ufe to make it up into Sheaves:and
when it was made into Shocks,they put thereof into a Stack tor the
Tithes. And for that the Parifliioners have been at this pains, they
NoT,J.e ofoMh.v. ufed to bedifchargedof Tithes for the odd Sheaves, when the^
Sheaves, ^ will not make a Stack. Adjudg'd a good Cuftom : and a Prohibi-
tion was granted, becaule the Parifliioners therein do more than ot
r^)^«^M)w«j. Con^mon right they are obliged unto r^}.
Latch.Rep. / ^^ v -phe Cale touching Tithe of Glebe-Land, Reported (as
aforcfaid; by Leonard to be between Stile and Miller, is the fame
wicn that Reported by Ov^enxo be between 5^//^ and Mies, mil-
printed : But thcCale was this; Sttle Parfon did fuggeft. That the
TV ^. c^ Gkhe. Land was parcel of the Glebe of the Parfonage, and that the laid
Of Tithes. 3^3
Stile did Lectfie faiJ Glebe, being twenty four acres, ro Miles (or
years j rendring thirteen (hilling four pence Rent; and in a Prohi-
bition the Cafe was, if Tithes were to be paid. And Pf^ray faid.
That although it was parcel of the Glebe, yet when it was Leafed
out, Tithes ought to be paid without qucilion; But there may be a
doubt where the Rent is refcrved to the true value of the Land ^
but here the Rent is of fmall value, wherefore Tithes (hall be paid
alfo. And the Reftrvation of the Rent was Pro otnmhus exaSlionh
bus & demmdis\ yet the Jufticestook no regard of thefe words.
But Godfrey faid, that thofe words would difcharge him: But IVray
on the contrary, for that this Tithe is not iffuing out of the Land,
but is a thing collateral ; and if a Parfon do Rcleafe to his Pariftii-
oners all demandiin the Land, yet Tithes arc not thereby Releafed;
for fuch general words will not extend to fuch a Special matter {e) (,) Cafe Stih
(17.) ji. Parfon of B. in confideration of Iio/. paid by C one againft M/«/
ofMsParifliioners, did accord and agree with him. That he and Owens Rep.
his AfHgns (hould bedifcharged of Tithes during the time that he
fliould be Parfon. C. made a Leafe to D A. did Libel againft
him for Tithes, and D. pray'd a Prohibition upon the faid contra^.
And if this were fufficient matter for a Prohibition, was the quefti- .
on, becaufe it was by word only, and without writing, which a-
mounts only to a Caufe of Aftion upon a Promife for C. but no
Aftion for his Leffees : neither can this amount to a Releafe ot
Tithes; for as Tithes cannot be Leafed without Deed, fo they _can^
not be Released or difcharged without Deed. G<j3/^^/Juftice, Tithes
cannot be difcharged without Deed, unlcfs by way of contraafora
Sum of mony, and he cited the a i H. 6. 43. Fenner, for that year
in which the Difcharge wasmade,it was good by way of Difcharge
without Deed, becaufe the Parfon for that year had as it were an In-
tereft, but fuch Difcharge can have no continuance for another year
for default of a Deed : and fo a promife being no Difcharge it is
no caufe of a Prohibition. But Gawdy held as afore. And the Court
(Popham fucceeding Wray Chief Juftice, upon his death.^ held, that
the Agreement being by parol, was not good : and Fe«»er then faid.
That without writing the Agreement could not be good between
the partles,.but for one year.And the Court awarded a Confultation. ^y^ p^^^.^^ ^ £_
But upon fearch made no Judgment was entred in the Roll (/;. jj^. B.R, Wood.
Tx 8.) Kote,That in Laytons Cafe It was faid by the Court,That roard againft
aParfbn may fue fro modo Decimandi in the Ecclefiaftical Court. N.{r»«.
AsifaPari(h!oner w^ill not put his Tithes into Cocks, when be ^.^J^f^l
ought by theCuftomfo to do. But then the Suit ought to be Spe- ^,^„^
cial for not putting it in Cocks, and not generally for not letting f^) i^.ytcn's
forth the Tithe (i). £^^^^
M m m (19.) It
3H
Modus Dec:-
mandu
ih) Clarkve^C.
FroTffe,
Latch, Rep.
Moilus Dici-
mand.
(f) Pafch. 7.
Jac. in the
Exchequer,
Ctittsbie' Cafe.
Ljtvei Rep.
Prefcriftitn.
Tiths of s Park
Tithes*
(19.) It was likewift agreed by the Court in C/^r^'i ca(e againft
Trowfeyi\at the Ecclefiaftical Court may take cognizance of a Mo-
dtis Decimandii'The Cafe was this; Clark a Parfbn fued Prowfe^onc
of his Parifliioners, fer mod. Deeimandi in the Ecclefiaftical Court,
and alledged a Cuftom in his Bill (fo called in the Report) to have
two (hillings of the pound for every Houfe and fhop in the Town:
and upon that Suit the Defendant there anfwered to the Cuftom,-
i^od non credit ejj'e vera. And ^o to have here a Prohibition it was
alledged, that the Defendant was a Butcher, that let open Stall in
the Market only to fell Flefh there, and that he had not any other
Shop or Houfe. And it was argced by the Court, that a Parfbn
may lue fer mod. Deeimandi in the Ecclefiaftical Court: But if it be
denied, the Chief Jufiice, as alfb Jones, faid, that in that cafe they
could proceed po further; becaufe they cannot try matter of Pre-
fcription there, and if they proceed, a Prohibition : but in this-
Cafe the Prohibition was denied, becaufe Doderidge faid, that for
the Reafbns Jufra, power is given to the Spiritual Court to exa-
mine that matter, becaufe it is not a denial of the Prefcription, but.
it ought to be by Allegation (h).
( 3 o.) It was faid in Catesbys Cafe, that if a Copyholder oF
the Kings Mannor pretendeth Prefcription for a modus Deeimandi
againft the Parfbn, the Right of Tithes (hall be tried in the Ex-
checjiter, and a Prohibition was granted to the Ecclefiaftical Court
in this Cafe (c).
(^ I.) In Poors Cafe againft Reynold, Prefcription to have Dee?
out of a Park in difcharge of all Tithes, and after the Park is dif-
parked; P. brought a Prohibition againft R. the Surmlfe was, that
de temps d*ont memory, ^c. withm the Parifh of C. there was a
Redlory appropriate, and the Chappel of S. annexed therewith.
Et una Vtcaria perpetua ejufdem Ecclefits de C dttat. And whereas
the (aid P. for fix years laft pa ft had occupied one Houfe, 1 00 acres
of Land, zo of Meadow, 40 of Pafture, called Shute-Park with-
in the (aid Parith of C. which faid Tenements were anciently a
Park, and now difparked, &c. and converted into the (aid Houfe,
1 or acres, &c. And that all the Occupiers of the faid Park </^?fw/)/
d\nt memorie, until the Difparking had paid to the Vicar there, one
Buck of the Summer-feafbn, and one Doe of the Winrer-Seafbn,
&c. in difcharge of all Tithes of the ^id Park, until the Dif-
parking ; and after the difparking in difcharge of all Tithes of the
laid Tenements, which they had accepted for all the time aforefaid
until the Difparking and after, or otherwife agreed with the Vicar
for them ; and iraverfed this Prefcription, and found for the Plain-
tift". In Arreft of Judgment it was moved by fJenden, that this
Prefcription extends to the Land ^uatenus it k a Park, and that
being
Of Tubes. 3^5
being deftroycd, the Prefcription is gone, &c. and if it be to be paid
or delivered out.o£ the Park, then it is determined, njid. Lutterefs
Cale, Ccke lib.4. Alfb this Prefcription is againft the benefit of the
Church, and (hall not be enlarged ; and the Wood which is Ibid prefcription.
out of the Park, (hall not be difcharged 14 Jac. Confers Cafe in Tithe afHaj-
C, B. Prefcription, that the Parfbn had to acres of Meadow given 5'^"^'
in difcharge of all Tithes of Hay-ground, viz,, of all the Meadow
in the Parifli : if any Arable Land be converted into Meadow, it
extends not to difcharge that, vid, LuttereVs CzCeyCoke lib.4.fo.8(J.
That an Alteration in prejudice to the Parfbn determines the pre-
icription. vid. Terringhami Cafe, lib. 4. He which hath Common
purchafed part of the Land, all is extinft, for it is his own hSt:
but vide the principal Cafe in that of Lutterel adjudged , that
building of new Mills in the ftme place, and converting of Fulling-
Mills into Corn-Mills, alter not the Prefcription : And he cited a Tithe of Mills,
Caufe which was in this Court argued at Bar, and afterward at
Beiich, between Cooper and jindrewsj Mich. lo Jac, Rot. 1015.
for the Park of CcwhurJt.Fid. 5i£.i. Fitz,. Avowry, 140. 5- £. ^.
Fitz,. Annuity 44. xo £. 4. 14. 14 £. 4. 4. But this Cafe was ad-
judged for the Plaintiff, Quodftet Frohihitio : and that which is by
the name of Park is for the Land, and is annexed to the Land by the
name of Park ; if the Prefcription had been to pay a Buck or a
Doe out of the Parky then it would alter the Cafe : But it is Gene-
ral, and had been paid alfb after the Park difparked. And the Cafe
oi Cooper and Andrews, was a Shoulder of every third Deer that
was killed in the Park, and two (hillings in Mony, and that Cafe
was never Adjudged (^). id) Mich. 10.
(gi.) V, brought Trefpafs againft T. Clerk, Vicar of A. for Jac C. B. Rot,
taking Bona & CatalU,2.Qd counts for the taking of two CareBat. ^* J.* ^''^' , .
glaci Anglice Wood: And upon not guilty pleaded, the Jury, gave j^utt R^" "
this Special Verdi6t,t//z.. for thcMoity of a Load of Wood, Si Tithe Wood
'Oidebitur Curiae ejuod Decima glaci non funtMinutA Decima ^ihtn What things
the Defendant Not guilty; hxxiSifunt Minuta Decim(e,x\\Qn he is '^^^ ^'"^^^
Guilty. This Cafe was argued at Bar by Bridgman and Henden ^f^ g|""'
Sterjeants : And the Court Unement agreed, that for ought that
here appears, this Vcrdidl being found without any Gircumftance,
that this Wood fhall be taken to be MinutA Decirme, It was agreed
by Henden, that if it had been found Wood growing in a Garden,
then Minuta Decima. And it was agreed by the Court, that it
might have fb been found, that itfhould be Majores Decima, and
Prxdial; as if the profits of the Parfonage conhft of fuch Tithes.
And fb of other things, which in their own nature are MtnutA
itiay become Majores, if all the profit of the Parlfh confift therein;
A% in fbme Countries, a great p^rt of the Land within the Parlfh,
M m m X is
eat'^
3^^
Of Tithes:
Tithe-Safrtn,
Tithe. Ho^f.
TitU-^oU.
litht-Tobacco,
(() Hiir. i\.
Jac. Rot. 7© J.
C. B. Ui^al
vcrf. Tindal,
Hut.Rt'p.
if) TriQ i6.
Jac. C. B. poft.
Cafe Whitgift
verf. 5r. Fi^/J?/.
Bitrringtcn.
Winch. Rep.
is Hemp, or Lime, or Hops j there they are great Tithes, and fo it
may be of Wool and Lambs, Tafch. 3, Jac, B.R, in BeMngfielJ^s
Cafe,Farmer to the Dean & Chapter of Norwich,y/ho had the Parfo*
nage Impropriate, and had ufed to have Tithes of (Brain and Hay,
and the Vicar had the Small Tithes: And a Field of 40 Acres was
planted with Saffron: and it was Adjudged, That the Tithes there-
of belong to the Vicar. There was a Cafe in this Court, as It was
vouched by Hernlen^. Jac. between Potman a Knight and ano*
ther; And the Queftion was for Hops in Kent, and Adjudged thas
they were great Tithes; but as for Hops in Orchards or Gardens,
theft we!XJ Relblvsd to belong to the Vicar as (rnall Tithes. There
was a Cafe in the Court for Tithe of Weild which is ufed for Dy-
ing, and that was in i[c»/, and it was Ibwn with the Corn,.and af-
ter the Corn is reaped, the next year without any other manurance,,
the (aid Landbrings forth and produces iF«7/- And that was afpe-
cial Vcrdidir, whether the Vicar (hall have the Tithe of it> or the
Parfbn; but one of the parties died before any Judgment. And ifZi?-
bacco bo planted here, yet the Tithes thereof are Mtnut^ Decim^i :
And all thele new things, viz,. Saffron, Hops, Weild, &c. if it doth
Botappear by material circumftances to the contrary ,ih all be taken as
Minute Pec;w*c;And fothis Cafe was adjudg. for the Defendant (e)i
(3 2.) In the Cafe of a Prohibition,. in cafe of a Libel in the Ec-
clefiaftical Court fbr the Tithes of Catsel j the Plaintiff allcdged
that thole Catte],of which Tithes were demanded, are for his Dairy
and for the Plough \. and Wineb being only prefent faid. That the
Parlbn fhall not have Tithes of fuch Cattel; but if he breed upCat-
tel to fell, it is otherwlfc. Secondly, the Plaintiff in a prohibition
alledged,. That time beyond memory the Parifhloncrs had paid a
half-peny for the Tithe a Calf, and a.peny for a Cow ; and thas
upon a day limited they ufe to bi-ing tljis to the Church,and to pay
this to the Vicar; and now the Vicar had Libelled in the Ecclefiafti*
cal Court agalnfbthemio compel themto bring it home to his houf^
And Winch faidj That this is no occafion of a Prohibion, for they
agree in the Modns, but vary inthe place of payment,and this is not
matter of fubflance, and for that reafbn no prohibition will lie {f)i.
(34.) .6. brought a Prohibition againft C. and alledged, that the
Dean and Chapter of D. was fei2;ed of the Manner, and the Defen-
dant being Vicar lued in the Ecclefiaftical Court to have Tithes, &
(hewed, that time beyond Memory, &c. they had held that Dif^
charged of Tithes for them and their Tenants, dc that they let that
ro the Plaintiff. And it was moved by Hendtn Serj.-ant, That the
Dean and Chapter are a body Politick and Temporal, which are
not capable of this Prefcription in non Declmando, Coke 2. the B.
of W'wcbe^eri Cafe. Bohart faid, That the Dean & Chapter are a
^ Body
^___ Oflithes, ^67
Body Spiritual, and are annexed to the Bifliop throughout all Eng^
land i and if the Bifliop is capable of that, as it isplain he is, then
the Dean and Chapter is alfb capable of that, which wasgrantedby
Hmton : but mnch doubted, for he faid, That he may be a Lay-
man, and for that the Plain tiff ought to averr. That he is a Spiritual
perfon ; Hutton confefTed, That the Dean may be a Lay^man,, as
was the Dean o^ Durham by fpecial Licenfe and Difpenfat ion of the
King; but that is rare, and a Special Cafe, and is not common, and
general, and therefore not to be brought as an Example, which was
alfb granted by Hohart Chief Juftice; and upon that day was given
over to the Defendant to fliew caufe wherefore the Prohibition
(ball nor be granted (g). ( g) Pafch. 1 1,
Cgf-) ^. Libelled againft TF. in the Ecclefiaftical Court for theJ^'^- 9 ^'
Herbage-Tithe of young Catrel,/«7. for a peny for every one. And winc'h^Rf
Hitch am moved for a Prohibition : and faid that he ought not to have "^^ ' ^^'
Tithes, if they are young Beafts brought up for the Cart or Plough.
And (6 it harh been Adjudged : As if a Parfbn prescribe to h^ve TtWe of CattJ.
Tithes for Hedgingftuff, he cannot, becaufc that prefervcs the Land
out of which he had Tithes; and thena Parfon Libels for Tithes o{Tithe.Hedgjluf.
an Orchard, for that it was a young Orchard ^ and the Cuftom of
the place was, to pay 4^. for one Orchard. Hitcham faid, there is'^ifhe-Onhar^,^
not anyfuch difference between old and new Orchards';»for if the
Cuftom be that he fhall pay 4 d. for every Orchard, it will reach to
the new Orchard. And then he Libels for a Heardi-peny, for the
Wood burnt in his Houfe. Hutton faid. The Hearth-peny is more Tithe-Htarth-
doubtful ; for it is a Cuflom in the North parts to give a Hearth- ■?*'*>
peny for Efto vers burnt; for which he prefcribcs to be free of every
thing which comes to the Fire. And in fome parts by theif Cuftona
they had P^iflurage for the tenth Beaft, or the tenth part of the
Gains, which is Barren for the time. But /&^ and 7V/wr?ow, who only
were prerenr,ihat no Tithes are due for them withoutGuftom.H;>cA-
am, they alfo will have Tithes for a thing before it comes to p€rfe(5t-
ion,which would beTithablc afterwards: But I agrcc,if he fels them
before they come to pcrfcaion, that the Piufon fhali have Tithes.
But by Hutton and Teherton, there may be a Cuftom to have eve-
ry year a peny for them. Sed adjurnaiur, &c. (h).
(^6.) J. Libels in the Ecclefiaftical Court for Tithes of Fifti, Ca/ c b ^'
which is due meerly by Cuftom and the Defendant pkads, mo'lmerjlon'^
That timeout of mind, &c. they iiave , paid no Tithes of that. ^afe. Hff/.
And Henden Serjeant moved. for 'a Prohibition. And Rtchard-^^?-
Jon Replied and faid. It is meerly a Cuftomary Tithe, as Rabbits, '^'^^'''^^I^-
Sec. whereof no Tithes are due by the Law of the Land, and
a Prohibition lliall not be granted. But all ijie other Tufti-
ces affirmed,. That there fliaU be a Prohlbirjon granted,
bccaii^
(i) Fafch. "^
3 Car. C. B
Cafe of Tithes
3^8 Of Tithes.
becaufe that the Cuftom ought to be tried at the Common Law,
and th^ey raakrea d^ffttrenQe between Modus Deciwandiy which is
atfo Cuftoraary, and where there is a Tithe precedent due, and that
M&dus cont'erts it into another duty: There no Prohibition (hall be
granted; but it fiiall be tried in the Ecclefiaftical Court ; whether
there be liich a Modus Decimandi or not j and that Cafe in the Cu-
ftom makes the Duty it felf. But if he alledged the Modus to be
for two pence, and the Parlbn for three pence, it {hall be tried by
the Gohimon Law. And they faid, that fo was the opinion in the
grand Cafe of Lead-Ore. And Hutton faid, that ib it was deter-
mined in the Cafe of one Berry ^ for Tithes of Lime-kills, which
are as Minerals, and arc not Tithable by the Common Law. But
when the Cuftom is tried, then they in the Eeclefiaftical Court
may poceed upon it (i).
. ^ "^^'"^ ^ Parfbn Libels in the Eeclefiaftical Court for Tithes of
Hetley^Kcf Pi^g^ons and Acorns: And the Defendant prayed a Prohibition;
beeaufe the PIdgeons were fpent in his own houfe, and the Acorns
dropt from the Trees, and his Hogs eat them. And it was faid by
the Court, Acorns are Tithable 1 1 Rep.j^<^. but then they ought to
be gathered and alfb fold. And a Prohibition was clearly granted
(38 J ■». Farmer of a portion of Tithes for five years, without
Deed, Demifes a Farm which he had in the fame Parifh to F. for
years; and afterwards he Libells againft him in the Eeclefiaftical
Court for the Tithe of that Farm. And F. faid, he was not Far-
mer. And Henden prays a Prohibition, for that, Ci)That the
Leale for Tithes Is without Deed : but he may be difcharged of his
own Tithes without Deedf as was adjudged before in this Court.
(%.) The LefTee is not to pay Tithes for the Farm ; for although
the Parfbn makes a Leafe of the Glebe for years, he paid Tithes :
But if a Lay-man who had the Impropriation Leafes the Glebe, the
•LefTee doth not pay Tithes. But the Court denied the Cafe of the
Lcafe of the Parfonage Impropriate ; and faid, that the Cafe of
Perkins and Hinde was adjudged to the contrary in that very point.
And alfo if he purehafe other Lands in the Parilh (which are dif-
charged of Tithes In his hands) and he Demifes them, yetthe Leflee
pays him Tithes. And the Opinion of the Court was, If one con-
trail with the Parfbn for Difcharge of the Tithes of his Lands for
years, and Demifes his Lands to another ; yet he fhall not have
Tithes, but the Difcharge runs with the Land- But if one take a
Lcafe of his Tithes by Deed, and makes a Demife of his Land, he
hath Tithes of the LelTce. And the Direction was, that the LefTee
of the Farm ought to fhew c;xprefly in the Eeclefiaftical Court,
that the Farmer had not a Leafe by Deed : and a Prohibition was
granted*
(k) Tithes of
Pjdgeons and
Ateria, j^nte
Wikock\ Cafe
'm Hetl.Rtf.
Difcharge ef
Tithes,
Of Tithes. ^^^
granted. And it fhall be Admitted, that the words of the Libel be-
ing Firmator, Condu^or, & Occupator was good (/). ^n Sioth ^
(3 9.) «^.againft S, in a Prohibition, in which5. Libels for Tithes gainft Jt^«V
of Hay. And IV. fuggefls for a Prohibition, that he ufed to pay the ^^»- Hetl. Rep.
Tithe for Hay infpecie.m confideration whereof he ufed tobe dif- Tithe.Hayof
charged of all Doles, Green-skips, and Headlarids, »^ €xcf€4«? '^'''''^^'^'•
the breadth that a Plough or a Team might turn about the Lands.
And Henden moved for a Confultationifor that it is faid,^W,^<:.
that is circa terras arabtles.vjh^n the truth is, there are skips at the
fide of Lands, as broad as the Lands themfelve s 5 and then he
would be difcharged of them alfo; whereas it ought to be at theend
of the Headlands only. Richardfon (aid, that in arable Lands in-
clofed, Pafture is at the end and at the fides, which is mowed, and
yet difcharged of Tithes. But the Court in refpea there was a Pro-
hibition granted, faid, that he ought to joy n Iflue or Depjurupon
the Declaration (w). C'*) Mich
(40.) The Earl of D. had a Manner in the Parlfh of C. which Car. C. B.' '
extended to L. where there is a Chappel of Eafe; and the Vicar of ^'""^ ^g^"^
C. Libels for Tithes in the Ecclefiaftical Court, againft one of the S"""*"' ^^^
Tenants of the Mannor. And Henden moved for z Prohibition, ^^
for that^ the Earl prefcribed, that he and all his Tenants Ihould
be acquitted of all the Tithes of Land within L, paying lo /. tfr
ann. to the Chaplain of L. And he faid, that fuch a Prefcriptlonis
good, as it was Adjuclged in Bov/les C^fe, And a Prohibifiqa was.
granted C«). ' ' t ..:. . ^ ■
/,, ^ T ^ • ' r- r • ^'..■' Hh- . r -.^.i.i ;/ i'' J. ■'),(») The Vicar
{,41.) In Comms Cafe it was agreed by the Court, that i Fo- ofchefbam's
reft in the hands of a Subjedl: Hiall pay Tithes; and it was agreed, Cafe-
that in the hands of the King it is priviledged. And by Hend^rig^^^^ ^*P-
JDAyenfort, and ^/;&07i;e Serjeants, It isonl^his pe^foD^lPrivile^^,'^''*"'!^^*'*'"^''
which extends to theLefiee of the King,' but not to theFeo^e.'
And it was agreed, that where the right of "ii^lies' comes in que-
ftion between a Parfpn and the Vicar, who are both fecclefiaftical '
perfons, it fiiall be tried by the Ecclefiaftical Court. But Kichar^-
Jon (aid, the Books make a doubt, ^yhere it is between the Servant
of the Vicar and the Parfon. But it (eemed to him to be all one
0), ...... .
(41.) K and D.PlaintiiFs againft H. Vicar or^/m^aTrohlbition: WC<»»'»'sCafe
the Libel was for -Wood employed in Hedging,and for Fire-wqpd: "^^^-^^P-
Iffiie was joyaed, that there was in the Pariflb a great quantity of-
Land inclofed ; and that they ufed to take Wood for Hedge.boot
and Fire-boot, and they wei-e difcharged of Tithes in confideration
that he paid Tithes in kind of Hay and CGrn,&c. And it was found ^''^"^ ^^^k-^fiof
for the Defendant. CV^w^ moved, that a Confiilt^tioji cannot be """^ F^r.-bMu
granted, for that they ought to be acquitted of. Tithes for thof©
'' ^ of:
370 Of Tithes.
of Common Right, and for that although Prefcription was allc^g-
cd,his nothing to the purpofe. Jthowe, For Fire- wood it was
'proved that Tithe always was paid. Kichardfon, there is no doubt
but the difcharge alfo ought to be by Cuftom, and to be grounded
upon Modus Deeimmdi. Teherton and Crokt otherwife, that it is
not upon Modm Decimandiy but by the Common Law ; and the
Rcafon is, for that when a man is Owner of Arable Land, and
he pay Tithe-Milk and Corn, and for that they are difcharged of
things confumed in the Houfe, which are to make Maftersand Ser-
vants fit to manure the Land,&C. Richardfon faid, It is feen that
it (hall always be difcharged, in confidcration it is alledged, how a
fmall Confideration will fcrve. Crooky It is not Modus Decmandiy
but the Difcharge is for that, that the Parfon hath by them ^ benefit'
for he had by them better means of Tithes. Hutton, If a man had a
Houfe of Husbandry, and demifes all the Land but the Houfe, he
fhall pay Tithes for them abfumpt in the Houfe. Creok^ Not.
No profit is made by them to the party; but the Parfon had a
benefit by hiip. And a day was given to fearch Prefidents
(;)Pafch.4. </>;. '^'"'"
Sr';« 'Ji c ^i'^'^n^ ^''^''? ^'^i' ^n '^^ "^"^^ ^^^^""g battel preferved
pSs Cafe ^^' '^^ S^''' T^J^^ ^'^*°" ^^'' whether in fuch Cafes a Cu-
Hctl. Rep. ^Jl °"|^f, f° \ furmized. And Crook, F. N. B. is. That of right
Ti:he «f)OHng Tithes Ihall not be paid for fuch tKmgs.Richardfon, In all fuch Cafes
CatuL the Parfon ought not to have Tithes, if there be not a Cuftom al-
^ - ;> hedged, by which the Parfon had any thing, or Recompence, or by
which his other Tithe is better. And he fald, that he had fcarched
-the Bo6ks, and the Book of Entries; and there is not any fuch cafe-
but fome furmize is, made, as for that, that he had Tithe of Corn in
ffecie where the Land is enclofed; and io the Corn better. Hutton
It ou^ht to be tried, whether the thing in his nature be Tithable]
or any Ufagc to difcharge it or nor, as the Cattel are in their nature
Tiths ofHedi ^^^^^^^\ !^^" y<;" cannot prohibit it; but the ufage ought to be
zng& Fmmfg. »"»*mized fo : And it may be Law,as the Parfon had better Tithes.
Tithts of Hii- Harvy^ If a Libel be for Tithes of Hedging and Fencing, there a
ftri, Mirbage. Surmife ought to be made to" difcharge that. -But when it is for
>.'sO I -r.wc {< Tithes of Heifers, which in apparency ought to belparcdby the
. v;,i Law of the Land, otlierwife it is, &c. Richardfon, for the Herbage
of thofe Heifers Tithe is durby the Eccleflaftical Law; and we ne-
ver can take Tithe of them without exprefs Cuftom or other Re-
Ttthes of Her- comptnccHar'vj, There was a Cafe, 1 6Jac.C.B. A Parfon fucs for
ha^ffor ^<"-- the Herbage cf Horfes, and the Parifhioner alledged, that he kept
f''- them for the carrying of Coals; there he ought to furmife forne-
thing to be Difcharged : and if he alledge, that lie kept them in
his. Houfe for ferving of Husbandry, the other may alledge, that
he
Of Tithes. 27 £
he kept them to carry Coals, and the Allegation is Traversable.
RicharJfon, There was a Cafe, where the Queftion was, A Hufi ^'f^e of Her.
bandman keeps a Horfe to ride up and down about his bufinefs ^''S' f"^ ^
Whether he fhall pay Tit|ie for the Herbage of him? and a Prohl- ^''^"'^-^'"/^"
bition was in that Cafe granted ; buta Surmize ought to be made.
Crook faid, that in the Kings Bench he had twenty times feen a
Prohibition granted in (iich cafes, without any Surmize. And a
Libel is for dry Cartel ; if it be alledged, that they are kept for ^''^'^ '^'^0'
the Plough ; the other may alledge, that he keeps them to fell,^'"''^"
without that, that he keeps them for the Plough. And before there '
is any profit of them, it is not reafonthat they fhould be Tithable,
and the Parfon fhall have the benefit for them after. And for
Hedging it is Lex terra, that he (hall pay no Tithes- RtcharJfon, It
is Lex terra ne confuetudo loci fac'tt legem terra. And if he had
ufed to pay Tithes for the Cattel or for Hedging, he ought not to '^'*^" "Z^^^"^-
pay that ftill; If an Ignorant man will pay Tithes for thofe things, "'^'
and after uponaLibela Prohibition is granted, if the other does not
alledge a Cuflom, the Prohibition (hall Hand: or if they alledge a
Cuftom , which is found againft him , no Conlultati'on fliall be
granted. And for a Garden-peny, the reafbn of that is apparent:
for otherwife Tithes (hall be paid /« yp^dt ; And fo for Hearth-
peny, if he had always paid it, it ought to be paid. Hutton^ \[ ^Garden.Tithes.
man had an antient Garden for which he paid a Peny , and that
is enlarged, of that enlargment Tithes ought to be paid infpecie
{'f )• * W Pafch. 4.
(^44.) A Libels againft B. in the Ecclefiaflical Court for the ^*''- ^' ^•
Tithes of two pecks of Apples, and for Feeding the Cattel upon HetrRe' ^^^^'
the Ground. The Defendant for the Apples anfwered, that there "* ^^'
were Two pecks only growing in his Orchard, and that they were Tithe-y^ptki,
ftoln, and never came to his ufe; and for the Cattel, that they
were Ancient Milch- Beafts, and that they growing old were dry ij-^j^^ ^^^y ^
And that for a month they depaftured with other Heifers, and that of cauel "^
after they put them into Meadow, out of which the Hay was car-
ried j and afterwards he fed them with Hay in his Houfe. Atho-ive,
becaufe that the Anfwer was not admitted , prayed a Prohibition.
Hutton. If Apples are upon the Trees, and taken by a Stranger,
(hall the Parfon be hindrcd of his Tithe ? Telverton , li I
fuffer one to pull my Apples , the Parfon fhall have Tithes ;
but ii they be taken by perfbns not known , the Parfon (hall
not have Tithes of them; which was granted: For they are
not Tithable before plucking ; and for that, if he fuffer them
to hang fb long by negligence after the time , that they are
imbezeled, by Tel'ver ton he (hall pay Tithes. For the fecond
matter it was agreed by the Court; and for the depafturlng in
N n n the
372
Of Tithes. I
the Meadow, and for the Hay with which they were fed afterwards
Tithe (hall not be paid, becaufe that the Parfonhad Tithesof them •
before. But if the queftion be for the Tithes when they went with
f the other Heifers, by Crook, that is no caufe to excufe the Tithe.
fajureof Har^ej, If I have Ten Milch-kine, which I purpofe to referve
Mnch-kL for Calves, and they are dry, the Parfon fhall not have Tithe for
grewn drjf, un- jj^^j^ Pafture ; but If I fell them, by which it appears I kept them
lefs ke^tfvr ^^,. pitting, there Tithes fliall be paid. And Hanon agreed, that
•^''^';. r akhoush there was fo fmall a time, that they went with the Hei-
rp,ohitira" fers, fet Tithes fhall be paid for their Pafture during that time
in H(t ley's Rep. (r).
poJlc^.Regn (4c.) In Walfingham and Stone's Cafe it was faid by ifw^rcw-
vcrf.Archbof ^^^^ a Parifhioner compounding for his Tithes for his life, was not
Cmtcrbnr)'. ^^^^ without Deed : And it was faid by Telvertofi, that the ufe In-
the Kings Bench is, that if a Defendant in a Prohibition dies, his
an:i>cfIuon Executors may proceed in the Ecclefiaflical Court i and it may be
fty Tithes. a Rule for the Judges in that Court to proceed alio. And then the
Plaintiff may, if he will, have a new Prohibition, againft the Ex-
cutors, i5cc. , r^.i 1 ^
(46.) In Norton's Cafe Finch Recorder fiid, de Communt jure
for EJhvers burnt in an houfe, Tithes ought not to be paid; by the
Common Law there was not any Tithes paid for Wood : And al-
though the Statute of 15 £. 3. gives a Prohibition for Timber, yet
^. , ,,, , Vnder-woods were difcharged of Tithes. VilDr. & Stud. 1 71 . It
Tithe.w<!od. .^ gj^ .gf- thatE/cver/ are not Tithable,bccaufe they are not renew-
ing every year, and it is parcel of the Inheritance, for to deflroy all
the Underwoods is Waft, &c. Dnwleys Cafe was refolved for the
Wild of SujJ'ex, and Mtch. i 3 Jac. B. R. in the Cafe of Porter and
Dyke for the Wildo^ Kent of the fame prelcripiion, Refolved to
be <TOod; andfo is the Common Experience, that a whole County
may prefcribe fo. And the reufbn is, for that by the Common
Law it was not due; but by the Conftitution oiWinchelfey^Lind-
wcod 1 04. it was Ordained to be paid ; for then the Prelates impu-
ted a great Peftilence that then was, for the negligence of paying
Tithes, and appointed Tithes of Wood. And the Commons were
defirousto have the Statute of 5;/'i;^, d^.-. otherwife explained than
the Clergy declares it ; for they fay, that they ought not to pay
Tithes of any Wood that is of the growth of ten years. Hutton,
Wood isTithable m their nature, and then there may be a Cuftom
to difcharge them. And the Cafe of Hearth-feny cannot be an-
fwered ; for if he fues for the peny, a Prohibition ftiall not be
granted, ejuod concejjum fuitper Crook & Telverton. But of things
not Tithable, Tithes of them cannot be fued without alledging a
Cuftom. Crook It is known that Hemb-penji is good by Pre-
Icription :
Of Tithes. 575
Icription : This Cafe is when there is not Land belonging to the
Hou(e, fb that the Parfbn is not anfwered for his Tithes another Hearth.^my,
AS^ay. But when there are Ten Servants kept for the maintaining it, '"'^^^'
then by the Law of the Land it appears that Tithes ought not to be
paid ; although Cuftom had been alledged it is nothing to the pur-
pofe, As if a Cuftom be alledged to pay 4 d. for every Acre in diP
charge of Tithes, and the VerdicSi: find 3 d. no Confukatlon fhail
be granted. Hutton, the Herbage of Barren Gatte] is Titheable, be- 3^catuf''^
caule there is a Cuftom which difcharges thofe that are for the ^ ^ ^ '
Cart. And he faid, that the Cuftom only makes that Legem terra.
And he cited Dr. Graunt\ Ca(e ; He Libels for Tithes of a Houfe,
and the party brought a Prohibition, and alledged iWc//«»2 Deciman-
///, ^c. And it was alledged in Arreft of Judgment, that Hou/es
W-ere not Tithable de Communi jure, and yet a Confultation was
granted, &c. (s). ^ (s)rnn. ^.
(47.) A Cafe between Stone and Walfingham having been for- Car. c. B.
merly in the Court touching Tithes, the Cafe was again moved in -^^^-row's Cafc.
Court, which was that they agreed de anno in annum fb long as ^^'■^' ^^*
the one fhould be Parfbn, and the other Pari fhioner, 5"/ amhabus^ar-
tibus tarn diu placuerity he (hould retain his Tithes for 6 s. ^ d. per
An. And Richardfon Jufticc faid, and it was not denied. That the
Suggeftion is naught for the uncertainty of it ; and a Prohibition
cannot be granted upon that. For the words de anno in annum make
an Eftate for a yearj and the next words make an Eftatefor Lifej
and the laft words, but an Eftate at Will : and what (hall be Tra-
verfed here ? It appears, that for years it is good without Deed, but
not for life ; and if it be but at Will, when the other demands his
Tithes^ the Will is determined. But at another day the Suggeftion
was made, that he made feveral Agreements with his Parifhioner,
that he pay 6s. 8 d. for his Ttthes for four years. And then a Prohi-
bition was granted. Harvey^ f^ffidt. If an agreement be proved for
thcfe four years (t).
(48.) Scot moved for a Prohibition, that whereas he had twenty ^ -"^I^^V
Acres of Wheat, and had fet out the tenth part for Ttthe , the fS^w.
Defendant pretending that there was a Cuftom of Tithing, that the Hetl. Rep.
Owner fhould have fifty four Sheaves, and the Parfon five, and Co
he fued for Tithes, for that there was no fuch Cuftom : And the
Court faid, that the Modus Decimandi muft be fued for as well in
the Ecclefiaftical Court as for the Tithe it felf: And if it be allowed
between the parties, they fhall proceed there j but if the Cuftom („ 1 scot 1-
be denied, it muft be tried at the Common Law. For if it be gainft iv.
found for a Cuftom, Confultation muft be granted ; if not, then Hetl. Rep.
the Prohibition is to ftand («).
N n n X (49.) Na^per
374 ' Of Tithes*
(49,) Naffer againft Steward; the Parfbn had a Prohibition s- |i
gainft divers of his Parifhioners that Libelled In the Ecclefiaftical
Court, to make proof by Witnefs of divers manner of Tithing in
(w) Napper a- ferfetuam rei memoriam (^.
gainft Steward (yo.) A Prohibition for H. againft E. Farmer of the Re<5lory of
Hetl. Rep. 5, and prefcribed, that all Tenants and Occupiers of Meadow had
ufed to cut the Grafs,.'and to ftrow it abroad, called tetting, & then
gathered into Wind-rows, and then put it into Grafs-Cocks in
equal parts without any fraud; to fet out the Tenth-Cock grea>^ &
Cuftom of Tithe frnall to the Parfbn, in- full fatisfa6lion as well of the firft as .of the
Crafs-Cccks. jatter Math : Upon Traverle of the Cuftom it was found for the
Plaintiff; and exception was taken, that the Cuftom was void,
becaufe it imports no more than what every Owner ought to do,
and fb no recompence for the two Maths: But the Court gave Judg-
ment for the Plaintiff; for Difmes naturally are but the Tenth of
the Revenue of any Ground, and notof any Labour and Induftry:
Where it may be divided, as in Grafs It may, though not in Corn ;
and in divers places rhey fet out the Tenth Acre of Wood ftanding
and lb o^Gv^Si: And the Jury having found his form of Tithing
there, ic is fufficient : and the like Judgment upon the like Cuftom
was In the Kings Bench, Pafch.t Jac.Rot. 191, or i^%.mer Hall
(x) Hill.4.Car.f^ Sjmonds (x).
C. B. Hide I" I 5- 1.) In J oh ft fens Cafe J if a Prohibition be granted upon matter
u]^' at Common Law, as upon a perfbnal Agreement between Parfbn
^^' and Parlibioncr for his Tithes, and not upon matter within theStar.
ofa£. 6. i^. the Suggeftion (hall not be proved within the Six
month? as the Statute limits, and as it is agreed by the whole
,. , Court (v).
*^X (^-■) Th^ Defendant here in the Prohibition LIbelsfor Tithesof .
HetJ. Rep, "Hay in the Ecclefiaftical Court. The Plaintiff fuggelts that the
Hay was growing upon GreenskipSj Deals, and Headlands, and
that there is a Cuftom, that the Parifhioners in a Meadow there
ufed to make the Tithe-Hay for the Parfbn, and in confideration of
Tithe-Hay. ^^'^^ ^^ ^^ difcharged' of all Tithes of Hay growing ut fnpra; & alfb
that for the Hay of the Land, no Tithe ought to be paid of fiicii
Hay,but does not averr, thu that Hay was growing upon Green-
skips, d^c. And anExce[iion was taken by Henden: ( 1.) That the
Exception Is double; the Cuftom, and the Common Law : And by
2•>/^/crf(?»,Thatis not material; for you may have twenty Suggefti-
ons to maintain the Suggellionof the Court: but Kicbardfon was. a-
gainft thar,that a Suggeftion might be double here,for the Suggefti-
on of the Common Law is a Surplufage; As in Farmer and JVior-
wiclj's Cafe here lately. One Picfcribes to be difcharged of Tithes,
Where the Law difcharged him, and (b was difcharged by the Com-
mon
Of Tithes. 37 S
mon Lav. The z exception is, that he doth not apply the Cuftom
to himfelf in the Suggekion; for he that lays the Cuftom does not
fliew that the Hay grew upon the Skips,upon which a Plough might
turn it felf ; and for this caufe by the whole Court this Suggeftion is
naught. And here Ricbardfon moved, how that two fhould joyn in
a Prohibition. Tehertofty if they are joyned in the Libel, they may
joyn in the Prohibition,and that is the common pradice of the Kings
Bench. Kichardfon, The wrong to one in the Ecclefiaftical Court
by the Suit, cannot be a wrong to the other. Hutton, They may
joyn in the Writ, but they oughttofever in the declaration,to which
Hawey^ agreed. Teherton, The Prohibition is the Suit of the King,
and he joyns f<a!»^ as in a Writ. Richardfov^ But it is as the fuit of
the party is, and if any joyn here, I think good caufe of a ConfuK
ration. It isagainft the profit of the Court to fuffer many to joyn.
And it is ufual in the Cafe of Cuftoms of a Parilh in debate, to or-
der proceedings in the two Prohibitions, and that to bind all the
Parllh and Parlbn. And it was faid by them all, that the confidera-
li )n of making Hay is a good Difcharge, becaufe it is more than they
arc bound to do (^). C^) Hill. 3 .Car.
(5-5.) F' fuedr. for Tithes of Hay, which was upon Land that Sz Pafch.4.Car.
was Heath-ground,and for Tithes ofPidg^ons. And hy Ricbardfon, ^""^- 454-
If it was mere waft ground, and yield nothing, it isexcufed by the ^'^"f V^'^^^"^'
Statute of payment of Tithes for feveti years ; But if Sheep were TgTyL^^T
kept upon ir, or if it yield any profit, which yield Tithes, then Tithe Hed. Rep.
ought to be paid: As the Cafe in D/er.And for the Pldgeons, which Tithe Hay on
were confumed in the Houfe of the Owner, he ^lid, and for Fi(h in ^(^^^■'
a Pond, Conies, Deer, ir is clear that no Tithes of them ought to be '^''^■''P'^i'""''
paidj,of Right ; wherefore then of Pidgeons :* ijued nemo dedixify
And a day was given to fhew caule wherefore a Prohibition (hould
not be granted. And the Court agreed, that it was Felony to take
Pidgeons out of a Dove houfe. And afterwards a Prohibition w^s
granted, but principally, That the Pidgeons were fptnt, by the
Owner. But by Henden, they fhall be Tithable, if they be fold
\^)' (.a) Flower ag.
(54.) P. the Vicar oi" Eaton in the County of Ox6w,Sues C. the ^^m^'^»-'
Parfon Impropriate in the Ecclefiaftical Court in Oxford pro Minw^p^l,^^?'
tis Dec't?ms. C. fues a Prohibition againft the Vicar upon a furmize ^^■'^"^ '""''
of a Prcfcription. P. comes and pleads the firil Endowment
made ^n. Dom. I 3 l.o. by which the Minute Tidies were allotted
to the Vicar; C.demurrs; and Adjudged for the Plaintiff, for the
Parfon cannot prefcribe againft the firil: Endowment Qf). (^) Tr, ajac,
(55.) In Debt upon the Stat, of i E. G. for not letting out of '^^ ^- '■°'^- ^^°-
Tithes, the Plaintifi' declares, that the Defendant was Icized of f^I'/f ^^'^'
fhe Lands in queftion within that Parifh, and tha.c the Tithes did KoyaRep.
belona:
37<5
For noifetting
out of Tithes.
(c) Pafch. 3.
Jac. Br. Sir
veff. Rob. Hi Hi
Noy's Rep.
Prefer ipt ion.
id) Bott ag.Sir
Ed. Barhaton
NoyV Rep.
Of Tithes.
belong to the Parfon and Vicar (viz.) Two parts to the Parfen,
and the third part to the Vicar, or their Farmers, payable inffecie
for 40 years laft paft, that the Plaintiff was Farmer proprietary of
the Tithes to the Parlbn and Vicslt ffe^ant, and fliews the value of
the Tithes due, and demands the treble value; the Defendant
pleads Nihil debet per patr. and it was found for the Plaintiff. It
was now moved in arreil of Judgment, becauft the Plaintiff ought
to have brought two Actions, as the Parfon and the Vicar ought
for their feveral parts : But Refolded, that the A6tion is well
brought ', for it is perfbnal and one entire Debt for one wrong
f 5-6.) Bott fues a Prohibition again ft Sir Edward B. and fuggefts
Rich. Ghamfion ^1^^^ ^j defendant is Parfon Impropriate of PT.and that time out of
mind there hath been a Curate or an Incumbent by the appoin-
ment of the faid Re61:or, who adminiftred the Sacrament, &c. And
that the Cuftom of that Parilh time out of, &c. was that the Cu-
rate fhould have all Tenths renewing within that Pari(h,except De-
ciinas granorum, which were paid to the Par(bn,and that every pa-
rifhioner who had fo paid the Tenths to the Curate, was difcharged
againft the Parfon.And that notwithftanding that,&c. Sir Edward
B. had fued him, &c. And now he prays a Prohibition,and had it;
but after that furmize was adjudged iniufficient, without argument
by the Court, and aConfukation granted, for fuch Curate cannot
prefcribe againft his Mafter,that may remove hime at his pleafure:
And for thatreafbn It was not a good Prefcription for the parifliio-
ners {d).
(5-7.) Goodwin being Vicar fues in the Ecclefiaftlcal Court the
Dean and Chapter of Wells^ being Parfon of a Church, for a pcn-
fion, and they pray a Prohibition, and it was denied ; For that
penfion is a Spiritual thing, for which the Vicar may Sue in the
Spiritual Court. Note, that they entitle themfelves to that Par-
(bnage by a grant of H- 8. who had it by 31 H. 8. of Diflblutions
(0.
(^58.) It was feid by Huttcnm Spencers Cafe, that by the Civil
Law the parllhloners ought to give notice to the Parfon when the
Tithes are fet forth. But it was adjudged, that the Common Law
doth not (b oblige a man (/").
(51^.) i?. by his Deed Compounds for Tithes, and after Sues"*fbr
them in the Ecclefiaftical Court; by Popham and Gawdj, that an
Action upon the Cafe lies. Vid. E. 4. i ^ Mich. 4. Jac. the Lady
Waterhoufe was filed for the Tithes of Trees, whereof none were
due, &c. there an Aftlon upon the Cafe does not lie, for the Parfon
or perfbn may well be ignorant of what things are due, otherwife
he Sues againft his own knowledge (^).
(60) To
(e) Goodwin
agsunft the
Dean and
Chapter of
Wells.
Koy's Rep.
Tithes fet out.
Notice.
(f) Spencer s
Cafe.
Noy's Rep.
Compoftiofj.
(g) Brey ag.
fartridgl.
Key's Rep.
Of Tithes. 377
(6q.) To have a Prohibition the Surmize was» that the Inhabi-
tants of D. of which he is an Inhabitant, have paid Hn.modJeciman-
diy &c. And they were atlfTue ; and be proved only, that he hira-
ielf had paid it^and yet wclh And no Confultation j for every par- Modus Deci. '
ticular is included in the general, and proved by it. And it appears mandi.
fufficient matter for a Prohibition, and to ouft a Spiritual Court of
their Cognizance, (i) Agreed, that where the Statute appoints
proof of the Surmize to be by two, it is fufficient if two affirm
that they have known it to be fo, or that the Common Fame is (b
{b). (^^^ Mich I f ,
(6 1 ,) Upon a Surmize by a Parifhioner, that he had Compound- >'^- C_ B. ror.
ed with the Parlbn for his Ttthes for one year, and it may be with- ;^J;;J^- ^5-
outDeedi by Broivnlowe, that a Prohibition fhall be awarded, and ^^y^ ^^^
that there are divers Prefidents in this Court. But otherwife, i^'n Compofamj. .
be for more years, it is not good without Deed, {i) And in Skin- Oj Mich. \6.
nerk Cafe, it was Ruled by the Court upon a Surmize ta have a ><^- C. B. Roc.
Prohibition, that if it be proved before one of the Judges within ^)/^,^^^;'^^« ^
the Six months, although that it be not Recorded till alter the Six Proifofsur.
months, yet it is well enough; and good alfo, although that the mfzefor aPro.
proof be in the Vacation. Pafch. 43 Eliz,. B, R. Fottenger agalnft IMon. ^
c-t 1 r ^i\ • ^^ Skinner $
jobnjon (k). » Cafe
(62.) A Parfon prefers his Bill for Tithes oi Hajle, Holly, Wtl- j^^^,; ^
loiv, Whitethorn, &c. a Prohibition was moved, becaufe they were j)^^^.^,^^^
of 2 1 years growth and more: And by the Common Cuftom in Hollj, wuiow^
Hawpfhtre , they were ufed for Timber to build and repair thdr rvhf,-thr?i.
Ploughs, and cited Pafch. 1 4 JacCB. Rot. 1 9 1 8. Cufflye s Cafe a-
gainft the Parfon for Holfy, mllow, and Mafle; and a Prohibition
was awarded. And Hid>bard faid, that in Cumkrland Beech was
ufkl for Ttmher, and the ufe of the Country for fcarcity of other
Trees will alter the Cafe (/)♦ ^ r • j t ^^^ ^'"'^"' ^^•
The Parfon Libels for Tithes of Hay,&c. The Parfon faid, that sp.ncer.
the Cuftom of the PariOi hath been, tRat he that hath Corn with- N07 s Rep.
in the Parilh ought to reap the Corn, and alfo the Tthes of the
Parfon, and to make them in Cocks, and topreferve them ^^}^^'}^^ Xtl'ZT''
Parfon fhall carry them away: and a Prohibition was granted ^ ^^.^y^j^fX
although that the parifhioners ought dejure to reap the Corn, as it p^,^-^^^ Tithes^
was agreed Trin. ^8 EliZ. B. R. yet he is not bound to guard the
r//;&^f of the Parfon,&c. But if the Parfon does not carry them a-
wayin convenient time, an Aftion on the Cafe lies agamit him.
Pafch. zn Jac. B.R. Rot.xU. there fuch an Adion was brought by ^^^ ^^^ ^^.^^^
mfeman againft the Reaor of Landen in ^JJex, for not accepting, ^^^', cafe,
&o of the Ttthes of Cheefe {m). Noy s Reg.
378 Of Tithes.
(65.) B. brought an A6lton upon the Cafe, that P. fued for
Tithes, and recovered, becaufe there was viji Tejiis fingularis to
prove the payment, when in truth he had paid it before two, but
T.i^' r aula- ^°^ ^^" ^^^ *^^^^ ' and by the Court Refblved, that an Action
ris^o wow fay doth not lie, becaufe the Caufe was meerly Spiritual : And for that
nient of Tithes, it differs from 8 E. 4. 13. for there the Compofition wasa Tempo-
(n) Bray verC ^^1 Contraft, although it was for Tithes («}.
Patndge. (64.) G. moves for a Prohibition, and furmizes that the Pariflii-
Noy s ep. Q^g^ § j^^d Compounded with the Parfon for the Tithes; but yet the
due Tithes were fevered and expofed, and the Parfon takes and
Comfofttlon. carries them away \ the Parifhioncr meets him and takes them from
him. And upon that the Parfon fues in the Ecclefiaftical Court: And
ie) Brooks a Prohibition was awarded (0).
Cafe in Noy's ^^^ j ^_ §^£5 p^ [^ t^g Ecclefiaflfcal Court for not fetting out
^^P' the Tithes of two Acres i P. prays a Prohibition, becaufe he had
let out the Tithes of one Acre in fpecie, and that a party unknown
had taken them; and for the other he fuggefls a iWe^«/ Decimandi
for is. 6 d. And upon that IfTue is joyned; and the WitnefTes faid
Tithes jet out. ^y^^^ p^^ ^ j^^^^ ^j^^^^ ^^ ^^^^ beard fay, the Occupiers of that Farm,
whereof that Acre, &c. had ufed to pay annually to the Parlbn 5
(hillings for all Tithes; and agreed by theCourt,(i) As to thefirft.
Quod Trohibitiofiety for after the Tithes arc fevered, if a Stranger
takes them away, the Parfon hath his Remedy againfl him at Com-
mon Law, and fhall not flie the Parifhioncr in the Spiritual Court.
(x) It was agreed, that a proof {by hear-fay) was good enough to
maintain the furmize within the Statute of a Ed. 6. But as to the
other Acre, Popham held, that the Modus Decimandi is not well
proved; but Fenner and Telvsrion the contrary : For by that ap-
pears, the Parfon Is not to have Tithes in fpecie, and for that had
ip) Wehh a- *^°' ^^y ^^^^^ ^^ ^^ ^^"^ ^^^^ '*^ ^^^ Spiritual Court Q).
gainft Petts> (6^.) W. fues P. in the Ecclefiaftical Court for Tithes of a Dove-
Kby's Rep. houfe. P. upon Suggeftion had a Prohibition ; but he did not prove
his Suggefiion within the Six months. W. takes ilTuc upon the
Tithe of Pidge- Suggeftion, and k is found againfl him; and yet he prays Cofts by
^"^' the Statute of 2 Ed. 6. for failure of proof within the Six months.
But by the Court adjudged, that he fliall not have it ; for he hath
furceafed his time, to take advantage of that, and he can never hare
a Confultation. Ergo, He fhall not have double Cofls. Read the
(«) mrltngton wordsof the Statute (^).
>^ Perrey.
Hoy's Rep.
(67.) A Parfon prefers his Bill for Tithes of Corn, andalledges,
that time out of mind, &c. in that Parifh they have ufed to allot
the Tenth-Shock; whereupon the Parifhioncr Suggefts, that the
Psrifliioners and all thofe who have Eflates,&c. have ufed only to
fet
Of Tithes, 37P
fet out the Tenth-ftieaf of Tithes, and had a Prohibition. The
Parfbn prays a Confultation ; but ic was denied. And Refolved by
the Court. That theParfon might Sue for a Modns Deciwandt in ^odu: Deci-
the Ecclefia ft ical Court, ^R. 3. 3.^. But If the ParlQiioner denies fnandt.
that, they ought to furceale, and a Prohibition lies, and that (hall
be tried at Common Law («). («) Steward's
(68.) A. Libels in the Ecclefiaftlcal Court for the Tithes of Cafe inNo/s
Pilchards taken in the Sea. And now the party had a Prohibition ; ^^P-^ ^^^
upon a Surmize that the Cuftom there is, That the Fiflier-Boat, ^V*"^ "^
hath one Mo'ty of the Fifh, and the Fifhermen the other Molty :
And that the Owner hath ufed to pay the Tenth of his Molty in
difcharge of all, &c. And it was held by the Court to be a good
Surmize; for by the Common Law he cannot have the Tithes of
Fifh taken in the Sea, becaufe it is not within any Parifli ; and
then when the Parfon, by the Cuftom, ought to have the Tithes
of them, he ought to take them according to the Cuftom. Ar.d
that the Tenth of the Molty may be a good difcharge of the
whole. And the parties went to iJlTue upon the Cuftom in Ctrn-
•Wal {-w). (u'j Holland
(6u.j By the Court {Pofham bclngabfent) It Is clear. That an veif. HcaU,
Agreement betwixt the Parfbn and one of the Pariftiloners, that No/s Rep.
he fhall have his own Tithes for years, it is good enough without
Deed, but other wife, If it had been for life* And it is a better way
to plead that as an agreement, and not as a Leafe (x). {x) Small's
(7 n. J A Prohibition for a Suit In the Ecclefiaftlcal Court, for Cafe-
Tithes of Rent in London. Ic was held by the Court, That by ^^^^ ^^P^
II H. %.caf. I^ the Suit ought to be before the Major of London
by complaint in Writlng,and not by word of mouth only, in nature
of a Monfirans de droits declaring all the title. And if the Suit be
in the Ecclefiaftlcal Court for Tithes in London, that Court may
grant a Prohibition^ and yet that Court hath not power to meddle
with them. {%) It was Refolved, That a Refervation by a Leffee
for life, who Leafes for years to A. is not fufficlent to bind him in
Reverfion, to pay Tithes according to that rate, (g) That a Rent
for half a year, and afterwards for another half year, is a yearly
Rent within the meaning of the Decree ; And note, as the fame . ^^ ^^^^^
was laft Let, is not intended laft before the Decree, but before the \lij;^^^^^ ^'^^'*
Demand of the Tithes (y). Dr. Tajkr.
(71.) It was found upon a Special VerdI(5V, That the Parfon of Noy. Rep.
the Parii makes A. Collector of Tithes, and that A. had LIcen- Coiuaor of
fed a Pariftioner to carry away his Corn without fttting forth o^ ^^!^^J!}^^^„
Tithes. By the Court clearly, that Licenfe Is void, 'vid. 5 E 3. 65. ^/^^ '^'^^^"'
Vlow. 104. That a Colledor of Rents cannot make an Acquit- Kenwood.
tance and difcharge them. And a Confultation was awarded, {z,) Noy Rep.
O o o (7 ■2") Baron
8o
Of Tithes.
■f
( 7x.) Baron and Ferae LvfTces of a Par/bnage,c^<:. The Parilhio-
|>er fets Brth the Tithes frauduleiuly, and prtfenrly takes them a-
way again, as it appears upon the Evidence. Aiid the Husband on-
^rauduhnt fit. ^ brought the Adlion upon 1 Ed. 6. for the treble Damages. And
ting out of it was Refolved, That Debt lies for treble Damages upon fuch a
Tithet. fraudulent fetting forth of T thes,although that the claufe of Treble
Damages fpeaks nothing of Fraud. But (2) k was Refolved, That
the Husband and Wife ought to have joyned inthe A£l;ionibecauf$
it is not a thing in pofTelfion. And if the Husband dies, the Wife
(a) Hill.y Jac fhall have the Damages, and not the Executor of the Husband (4).
B. R. Fort^ verf. (/ :} .) ^ Prohibition was prayed upon a Surmize,That the Tithes
Pomroy. fpj. yy^ich the Suit was, belonged to the Vicar, and not to the Par-
Noy s Rep. ^^^ . g^ ^^^ Court, That a Confultation fhall be granted; for the?
Right of Tithes is confeifed. And whether they belong to the Par-
Tithes, whether ^'^^ o^" ^^^ Vicar, that is meerly Spiritual. And that fo it was Ruled
the Parfons or in one BuPiefs Cafe, the Parfon of Pancras j and in one Milbraf^
the Vicars'? Cafe it was Adjudged accordingly (b).
(b) Rmdall ^^^ J g^ j^g Co^rt, That a Prohibition fiiall not be granted
upon a bare Surmize, that he is fued for Tithes by the Parfon of D.
of Lands in the Pariih of 5. unlefs it appears in the pleading in the
Spiritual Court : For they there fhali no be Judges of the bounds
of the Parifli. Vtd. ^ H.$. i o. xz E. 4. 24. (c).
(7 5" .J A Prohibition was prayed upona Suit in the Ecclefiafllcal
Court for Tithes in kind of a Park now converted into Tillage, up-
on a Surmize Je Modo Decimandi, to pay a Buck and a Doe for all
Tithes. And allowed, by the Court and agreed, (i) Although they
are Fera naturae, yet they may be given for Tithes ; So to pay
Phe^fantSj&c. (l) Although they are not Tithable of themfelves
yet they may be given for Modus Decimandi: As a great Tree may
Mod,Decimanl be given for Tithes of Trees Tithable. (;) That this isadifcharge
of the very Soil, and a Park is not but a Liberty, and the Owner
may furniih it with Game when he pleafe. But after a Confultation^
was granted, becaule the Surmize was not proved within the Six
Dionths: So Adjudged Hill. 6. Jac. C.B. The Vic^r c^ Clare inSttf-
folk-i who fued for Hops. And there alfb a Prohibition wasgranted
upon fuch a Surmize. But after a Confultation was granted In that
Cafe : For the Modus Decimandi was alledged for Difcharge of
Tithes of Hay and Herbagc,and not of all TIthes,where the Libel
was for Tithes of Hops.And Coke Chief Juftice vouched one Ship-
id) Sharp, ag. '^f »'s Cafe, That fuch a Modus Decimandi generally for the Park is
shaf. not good, if it be difparkcd. But it fhall be particularly for all A-
Koy's Rep. cre§^,cor\5a^$ii5i the Park (d).
verf. Knowls.
Noy.'s Rep.
(c) Philips ag.
Slacke, ibid.
Tithe-Park.
■n/\
(76.) Upon
Of Tithes. 581
i,j6i) Upon ai Surmize tohavePtohibition after Sentence at the
EccleiiiafticalCourr, Two Judgments w€re voaehed upon the StU^ Tithe notfet
tute a E.6. for not fetting forth of Tithes. And 49 Elix,, M.R, afoftk
Parifliioner privately fets forth his Tithes, and takes witnefs of it,
and immediately after he carries them away ; that is not a fttting
forth within the Statute. For the words are tmly^jujily, andwith-
mt fraud or covin. Fid. I o H. 4. zl. 44 Eliz,. B. R. Baker's Cafe :
A Pariflioner ifells his (Srain upon his Land, and after by com-
mand of the Vendee he takes his Corn, being fevered, without fet-
ting forth of the Tithes. That the Parfbn may well have an A6tion
againft him upon the Statute, and fhall not be compelled to Sue the
Vendee, who it may be was not known to him. And it is not Tra-
verfable, if the Tithes were fet forth according to 47 Eliz. It was
Refblved in Trin. 7. Jac. B. R. in Brickendtne\ Cafe againil Den-
wood (<?). (c) Roche Jfer
("J 7.) If a Vicar hathufed by Prefcriptlon time out of mind,5cc. ^S- ^<""'*''-
to have all the Tithes within the Parifli ^except Corn, wich the^°^* ^^^*
Parfbn appropriate ufed to have) 'viz,, of Haj, and zlCoo^Hops
from the time it came into England^ which was in the time of H.8.
and o^Woad (wliich is a Dying plant) and moreover Rape-feed \s
fbwn there in the Parifh^ where never any fuch Seed was fbwn be-
fore, nor in EvglandtxW of late times, yet the Vicar (hall have the
Tithes of that Raps- feed, and not the Parfbn appropriate j for that Ti'th Rapt-
it is wiih'n the Prefcriptlon, although it be a new thing, and there- ^'^e^*
fore could not be prefcribed finglyjand for that the Parfon is exclu-
ded o^aW except theCorn (f). (0 P^^ch. 7.
(78.) If Doubt arife de Deciwis Garharum, as what fhall be in- ?ril,'^*
tended by Garha-^ it is faid that Garb a at the Common Law fignifies prj^'^j.^
at this d^yaSheafof Corn, and the Civilians Glj, Garba fignifies DecimceGay
ftich a thing as is bound together in one bundle (^). l^arum.
(jg.^ In the Cafe between Reynclls and Green it was Adjudged ^.f) Rol]. Abr.
by the Court, That IVood in its own nature is Great Tithes; not- ^^'^^' ^"^^'
withflandlng if a Vicar be endowed de Minutis Decimis, and by Ti'the-Wood.
virtue of the (aid Endowment had of a long time ufed to have
Tithe of Wood not exceeding the yearly valueof 6 /. 8 d. theuftge
of Wood fhall pafs by the words de Minutis Decimis in that cafe,
by reafbn of the finall value thereof {h). ^^. j^. .
(80.) Where a Parfbn had Two parts of the Tithes, and the jac. b. R. int«r
Vicar of the fame place had the third, and they by feveral Leafes Reymlls and
had demifed the Tithes to one : In this Cafe the whole Court (ex- Green.
cept Jufllce Fenner) held, That although the Parfon and Vicar
could not joyn in this Cafe in a Suit of Tithes, becaufe they claim
them feverally by divided rights, yet when both their Tithes are
conjoyned in one perfbn, viz. the LefTee, then the interelt of their
O o o X title
382 OJ Tithes.
title is conjoyned alfb in one (who made but one A6lion for the
whole Tithes in that cafe) yet it was agreed by all the Judges, that
the PlaintifF-Lfffee fhould recover his Tithes in damraages, and
fhall not demand them again in any Suit, after a Recovery in this^
rsf«!- AaionW.
Champion (^ i«) ^t was Agreed by the whole Court of Kings Bench, A/zVz&r
verf. Hill. 5 y^^' ^^^^ hath niany times been Rukd, That if a man iell his
Brownl. Rep. Tithes for years by word, it is good ; but if the Parfon agrce,that
pa.i. Alliens of Qj^g ^^jj ^^y^ j^jg Tither for feven years by Word, it Is not good,
^row I. Rep ^^ ^^^ opinion of Flemmhsg Chief Juftice,becaufe it amounts to a
ibid. Leaft: and he held ftrongly, That Tithes cannot be Lealed for
years without a Deed.
(82.) Upon tlie Statute of 1. Ed.6. cap. 15. for Setting out of
yiBmtfor J}op- Tithes, in a Prohibition to ftay proceedings by a Parfon in a Suit-
f'"S*t^^f'' in the Ecckfiaftical CourL againli one of his Purifli, for hindering^
r^lmbu Tithe's ^^ ^^^ ^" ^'^ ^^^ '" ^^^ Carriage of his Tithes. The whole Court
agreed tn /^/.f,That if the Parfon have a ufualWay ilopped,that lb-
he cannot cornetotake away his Tithes being fet out for him, he
may well fue for this in the Ecclefiaftical Court,, and there have his-
remedy. But if the Quellion be whether the Parfon be of right to •■
have a way {yiz.y one way oranotherjthis is Triable by the Com-
mon Law, and not in the Eccleliaftical Court, but if the Par.-bn
have a certain way granted to him, and fet out by the Ctmmon
Law, if he be at any time difturbcd or hindred by any of his Pa-
rilhioners, or by any other in the u(e of this his Way, he may then
in luch cafe well fue in the Ecclefiaftical Court for his remedy. ^
And the words of the Statute of z Ed, 6. cap. i 3^ are, That if any
Parfon be diHurbed, Hopped, or hindei-ed in the carrying away of
MiA. S Tac. '^^'^ Tithes, ib that the Tithes comes to be loft, hurt, or impaired j
B. R. BuWr. in this cafe he may fue in the Ecclefiailical Court for his Remedy,
par. I. and upon due proof th^re made thereof, he fhall recover, double
value of the Tithe fo taken or loft-, belides his cofl: and charges of
Suit. But becaufe in this principal Cafe, the Parfon (lied in the Ec-
cleHaitical Court for the Right of his Way, whether he was to
have that Way or nor, which belonged properly to the Common
Law, and not Triable there in the Ecclefiaftical Court ; for this
caufe the Court granted a Prohibition to Hay their proceedings in-
the Ecclefiaflical Court.
Of Tithes. 385
ABhy-Lands were five ways pnViledged or difcharged of
Tiihes, x'isi. by Compolition, Bull or Canon, Order, Pre-
Icriptionj and Unity of pofl'eflion of Parfbnage and Land, time out
of mind, together without payment ot Tithes, {a) It is fuppofed,
thatnp Land which belonged to Abbots, Priors, &c. is at thisday (^) Hob. 308
discharged of Tithes, but fiich as came to the Crown by the Statute 3op-
of 3 I //.S. f.i 3. All Monafteries under Two hundred pounds per
An. were tobediflblvedbythe Statute of 2 7//. 8. But thofeof zoo/.
■per An. or upward?, not till the 3 1 of//. 8. The Unity afore^id, or
perpetual Unity is, where the Abbot, Prior, &c. time out of mind
have been feizedof the Lands out of which the Tithes arife, and
alfb of the Re6lory of the Parifh in which the Lands lie. Which
Unity (as to a discharge of Tithes) muft have thefe four properties,
(l) It muft be Jufia-ds to the Title: (aj PerpetuaiOr umeouioi
mind : (3) ^^(jualis^ that i?, a Fee-fimple both of the Lands aind»
Re6lory : ^4) Libera^ or Free from the payment of all manner of
Tithes whatfbever. (^} In a Cafe where an Abbot held a Parfb-
nage Impropriate, wich was difcharged of Tithes, and had pur- , , .
chafed Lands, fb that the Tithes were fufpended in the hands of (J^^/^"^ ^^°°
the Abbot; and afterwards the Poilcllions of the Abbot comJng to 482.
the King by the Statute of 3 1 H. 8. The Qjeftion was,- Whether
the Lands io purchafcd by the Abbot before the Surrender to the
King, were difcharged of the Tithes.^ It was the Opinion of Mr.
Tlowckn in that Cafe,, that they were not difcharged ; for that no
Lands were difcharged, but fuch as were lawfully difcharged by
right Compofltion,. or other lawful thing ; and in the faid Cafe the
Lands were not difcharged in Right, but fufpended only during
the lime that they were in theAbbots hands (c). ^<^) Mich. 1 7;
Acorns ov Maflof Oak fhall pay Tithe, for they are of Annual ^^j^'/.fj^?:
increafe, as in Liford''sCafe.(d) Thefe Acorns or Maft are known ^.^^t, Difw.es.
in the Law by the word \? annagium: ^ fb Ltndwood^P annagium e/l-. (^d) Co. lib. 1 1 .
pafiur.Vorcorum in Ncmorihus &• Sylvis.,utfuta de glandibus^d^alhs & Regift. 49.
frHtfibusarbcrumSylvejhium^quarHmfruttusalittrnonjoUnt colllgi.^^0'"''^^'^ ^'
Lindw. de Dccim.c.SanUa Ecclefa^'verb. Fannagtis. And Mr. Skene " ^^^'
de verb. Sign, defines this to be a Duty given to the King for the
pafturage of Swine in his Forrcfts : Alfb Pannagium is taken for 1^ f c/.Vmf '
the mony which is paid for the Pannage it (elf, as appears by the b„rie\ Cafe.
Stat, of Cbari.a de Forefia^cap.^o. UmifcfHifque liber bimo^&c. (e). Biildnp. k
Aftsr-
3,84 Of Tithes:
Aftermoath or Second Moath: Of this Tithes fhall be paid de
jure, unlels there be a Special Prelcription of Difcharge by paying
the Tithes out of the fir 11 Moath, and then it fhall be difcharged
(f) Pafch. 41. (/> But if a man pay Tithe-Hay, no Tithes ought to be paid de
El. B. R. ^er jure afterwards for the paftureof the fame Land for the fame year,
^^^' for he fhall not pay Tithes twice in one year for the fame thing,for
B^P rf^'^^f fh^t the After-pafture is but theReliques of Hay, whereof he had
stanfield in P^''^ Tithes before. ( g) Nor fhallTithes be paid for Agiftroentsia
Sufolk per Cur. fuch After-grafs. (h) In Johnfon and Awheries Cafe it was Re-
Prohibit, folved, that Tithes are not to be paid forthe After-pafture of Land,
granted. ^^^j. ^qj. Rakj^igg of Corn. (/) And where in A'ivberie's Cafe, Suit
lic^B^MdW// ^^^ ^" ^^^ Ecclefiaflical Court for the Tithe of the After-mowings
& 'uolper, per of Grafs, and upon a Surmize, That the Occupiers of the Land had
Cur. 3jac. B. ufed to make the firft Cutting of the Grafs into Cocks for Hay,
R. Spencer &c and to pay the Tenth Cock thereof in fatisfa61:ion of the Firft and
Jolmfin. After-mowings, a Prohibition was awarded, (k) So that After-
B^ \'enniJkT' g*"^^'* °** After-paflure, or After-moath do not pay Tithes, where
(//) 2 H. 4 Rot they have paid before of the Grafs of the fame ground the fame year.
Pari. 011.513. fave whereby Covin to defraud the Parfbn, more Grafs is left
it) Cro. par. i . landing than was wont to be, or is there ufual^ Nor is the Herbage
(^) More. qP Catrel, which eat up that Grafs, Tithable, unlefs there be fbme
(/)^P.7NacC. f'''^"^ '^"^ ^^^ ^■^^^- (0 Notwithflanding the PremilTes, although the
B. adjudg. After-moath be not Tithable, where the Owner at hisowncofls,
Mich. 6. Jac. charges and labour, nude the firft Grafs into Hayj yet Q^ whether
C. B. Smitb'g it n^ay ^lot be otherwife, where the Owner doth no more than cut
Bum'r 2 z 8 ^°^^" ^^^ Grafs of the firft Moath } {m).
Cro.'2.42^^(?. -^giftmtnty that is, a taking into Grafs the Cattel of Stran-
Creen\ Cafe. ' gers Within the Parifh where the Grafs grows ; this is Tithable,
{m) Cro.2. 42. and regularly by the Owners of Tenants of the Land, not of the
HalherC Cattel, unle^ theCuftom makes it Tithable by the Stranger, (w)
(n)T^]Z''B Heretofore there was not any Tithe paid for this Aglilment; (0)
R. & Cro. Car. but now the Law is taken to be otherwife : (f) And is (as aforefaid)
2.37. 559- to be paid by the Owner, not of the Cattel, but of the Land. (<^)
Jones 2^4. Under this Notion of y^^//we»f is alfo comprehended thedepaftu-
(o)F.N.K S3' rage of Barren Cattel, whereof comes no profit to the Parfbn, the
Miehfit^El. ^°^^ of which Tithes is regulated by the Annual vaule of the
C.b' Crifma'n Land, the Number of the Cattel, or the Timeof the Pafluring, ac-
verf. Lewes. cording to the ufage and cuflom of the place ; yea, though the
Cro.pa. 3 •44^- Cattel be bred for the Plough or Pail, to be employed out of the
(q) Mich. 8. parifij where they are Agifted, and by one that is no Inhabitant
Bax?er^nr'' w^t^'" ^^^ Parifh, Tithes fhall be paid for the Agiflment of fuch
Ho^es. Cattel. But for profitable Cattel, as Oxen, Horjes, or Beafts of the
(rj Roll. I. Plough, employed and ufed in the fame Parifh, no Tithes fhall be
64^.3.6,7. paid for the Agiftraent thereof: (rj But if Cattel or Horfesbe
bought
I
/ Of Tithes, .385
bought not for any Husbandry in the fame Parifhj but to be fold a-
gain, Tithe {hall be paid for the Aglftment thereof, and a fraudu-
lent employment of them in the Parifti to defeat theParfon of his
Tithes, will not prevent the fame, (r) A. fiied a Prohibition againft (r^^oL^j^j.
B. Parfon of D. becaufe he Libelled in the Ecclefiaftical Court foi- a. 1 3.
Tithes for Agifiments; the Plaintiff pleaded, That he had always
paid ixd. for every Milch-Cow going in fuch a Paflure ; arid for
this payment he had been difcharged of Tithes for all Agiflments
in that Land. In this cafe it was faid. That this payment of mony
for Milch-Beafls, fhould not difcharge him from the payment of
Tithes for other Beafls. {s) In the Cafe o^ Lacie againll Long the r^. j^^n -.
iUggeftion for a Prohibition was,That theParfbn fued in the Spiri- c.B.shar:ng. '
tual Court the Owner of the Land for Tithes of Cattel, which he tofi and Fleet-
took toAgiftmentjwhere he ought to fue the Owner of the Cattehit ^ood'sC^k.
feemed reafonable to the Court, that the Suit was well brought a-^°^'^*'^- '^7-
gainfl: the Owner ; but be it cjuowodocunque, it belongs to the Spiri-
tual Court to determine, whether the one or the other ought to be
Sued; therefore for that reafbn, as to that point, a Confultation was
granted fer Curiam, (t) Vid. Vafiure. ^^ ^^^l* 7 Car.
Agreement: No Parfon can by any Agreement made with his " r"/"*^'^
Pirifhioner bind his Succeflbrs : but being made with him for his jgngj j^^p
Tithes during only the Parfons life, this is good. («) And an A-(«) Co. 1 1. ip.
greement only by V\ford, without any Deed,may be good,madeby i. 43-
the Parfon with his Parifhioner, that he fhall keep his Tithes, (iv')^'^^ Ydveit.
A Parfon contracted with A. his Executors and Affigns, fftr 10 s. ^^' ^^'
to be annually paid him by the faid A. his Executors and Alligns,
That he, his Executors and Affigns, fhould be quit from the pay-
ment of Tithes for luch Lands during the life of the Parfon : A.
paid the Parfon 10 s. which he accepted of, and made J5. an Infant
his Executor, and died: The Mother of the Infant took Letters of
Adminiflration ^^r^w^e ???/«or; atate oilhe Infant,and made aLeafe
at will of the Lands .• The Parfon Libelled in the Spiritual Court,
for the Tithe of the fame Land againfl: the Tenant at Will. In this
Cafe it was faid, That the Agreement did oblige the Parfon during
his life ; and although the Adignee could not fue the Parfon upon
the Contra6l, yet he fhould have Prohibition to flay the Suit in the
Ecclefmfl. Court,& put the Parfon to his Remedy for the lo s. upon
the Contrail:, for that he could not have Tithe in kind by reafbn of
the Compofition made, (x) If a Parfon agree and contrail with one ^^^ p^^-^j^ ^ ^
of his Parifhioners, that he ftiall keep back his own T)thei,if that bejac. B. R. Snd!
made after that he hath fbwn bis Corn, and for the fame year only ,in and Bemet\
that cafe the Agreement fhall be good : And if the Parfon fue in ^^^'^•
the Ecclefiaftical Court for the faid Tithes, the Pari fhioner fhall ^°^^^^- ^5^*
have a Prohibition ; but if it be fore more years than one,, or before
fh.e
^86 Of Tithes.
' ' ' ' — '"I. — »— — »r— ^»—
the Corn is fowed, this ftiall not be good, by Coke and Fofier againft
Warherton ; and Coke faid it was fb adjudged in B. R. in Parfbn
BoQth\ Cafe,That a Contra6l: made with a Parifhioner for keeping
back of his Tithes for {6 many years as he fhall be Par(bn, was not
g Jodrand ib it was in Wellow's Cafe hercalfo: But it was Agreed by
them all, That fucha Contract or Agreement for the Tithes of any
other was voidj but only of the party himfelf, who was party to the
Agreement, and that ought to be made by way of keeping them
iy) Mich. 8. back. Fi(i. 1.0 H.6. &ii H.j.xi H. y. xi. k (j). Jtthes can-
Jaoi 6 1 o. C. not be granted without Deed: It was Agreed by the Juftices in Bpigg
B. Brownl. and Woodwards Cafe, That an Agreement between a Parifhioner
ep. par. 2. ^^^ ^^^ Parfbn, that in confideration of twenty fhillings fer An. he
fhould hold the Land difcharged of Ttthes during the life of the
Parfon, was not good to ground a Prohibition upon , for that the
.(x,) Cro. par. 1 grant of Tithes cannot be without Deed, (z,) The like in Hawks
and BrayfieUs Cafe, in flay of Suit for Ttthes in the Ecclefiaftical
Court, it was Surmized, That A. was feized of a Meffuage and
Lands in the Parifh of D. and agreed with the Defendant being Par-
fon, in Confideration often pounds to be yearly paid by A, to the
Defendant during their Joy nt- lives and his continuing Parfbn, in
fatisfaition of all Tithes growing upon the fame Lands, that he
fhould hold the Lands without payment of Ttthes. Refolded, it was
not a flifficlent Surmize to ground a Prohibition: For an Agree-
'menc to be difcharged from payment of Ttthes^ for one year by
word, may be good ; but for fuch an Agreement during the life of
(/»; Cro. pa. z. the Parfbn cannot be good without Deed (^aj.
^^L^i ^"^t b ^^"^^' ^ Things appointed for Alms, are not Tifhable (If).
AniMtalia Utilia, fuch as Cows, Sheep, and the like, Ihall pay
Ttthes in kind.
Animalia Inutilia, as Oxen, Borfes, and the like, though Tithe
cannot be paid thereof i« fpecie^ yet for their depaflurage, or what
bargain is made for the fame, Tithes fhall be paid (c);
-, Br ^pp^es : Suit in the Ecclefiaflical Court for the Tithes thereof,
Poph Rep ,o-] in tJif charge whereof an Award or Arbitrement was there pleaded,
id) Parker. and the Plea refufcd ; notwithflanding which a Prohibition was
vctC Kempe. denied (//).
Bolilr. par. 2.
O; Inft.pa. i.& 643. & Co. 1 1. par. 4^. a. Dr & Stu. 173.
Of Tithes, 387
Ark of Timber-trees 13 not Tithable, but is prhdiedged toge-
ther with the Trees.
EarrengrQimd, which is fuafte natura Barren, is not Tichable ;
but if Tithe- Wool and Tithe-Lamb have by 30 years been paid
for ir,and after by Manurance is made Ferti), then for the iirft Se-
ven years fuch Trrhe fliall be paid for it,as was paid before. There-
fore Barren Heath or Wafl-grounds naturally Barren, and not Ma-
nurable without extraordinary charge , may pay Tithe of Wooj,
Lamb, or the lil<e j but being converted into TiPage, (hall pay no
Tithe of Corn or Hay for thefirft Seven years after racn improve-
ment ; during which time it fhall pay only fuch Tithfe as was for-
merly paid : otherwife it is, if it became barren on/y by ill HuP ^
bandry (e) : Or if it became barren by Tome accident of Inundatl^ Caff °T' 8
on, or overgrown with Bufhes, and after reduced again to Fertili- (/jM.'iVja'c
ty\ in that cafe It fliall pay Tithes prefently (f). Alfo Marfii- CKshanng.
Lands newly gained from the Sea, and Fenn-Lands gained from ^""'-^ ^afe.
the Frtfli- waters by Draining,&c.are not within the Statute of 2 Ed. ^ ^^-^J^-
6.C.1 5.to be freed from the payment of Tithes during the tirll Se- ^^?'^^^\^'a
ven years alter the gainmg thereof. Ltkewife, if Land be gained 6s 8.
from the Sea, and that by great coll: and expence, and afterward Plow.204.a.
turned to Arable- Land j it was the Opinion of the Court, that it '"i.b. vid.
fhall pay Tithe notwithilanding the colh, becaufe it is not Barren ]^ Car.B.R.
Land of It feir,but only by accident,and fo not within the fcope and conefsc^c^
intention of the Statute of ^ Eci.6.(g).ln the Cafe between Strcwd (''g)%lfch.^'^
and Hopkins upon a Prohibition, 1 v/o Points were argued by thcJac.B.R.Wzw
Four ]u{\\cc?,viz,. (i) When a Prohibition is brought upon the a"^ ^''^-^'s
Statute of 2 E^.6.to(^ay aSuit in the Ecclefiaff ical Court forTithes ^^Jf*
of Barren-Lands the firft Seven years , it behoves the party who ^"'^''•'1^^'
brings the Prohibition, to prove his Suggeflion within Six months, ' ^■^'^'■^°
otherwife a Confultation by the (aid Statute is grantable. (i}When
a Confultation is granted for theReafon aforer^id,yet the party may
have a new Prohibition upon the fame Libel; for that the Stature
of 50 E<^.5. doth not extend to a Confultation granted upon Non-
frohate of a Suggeftion within Six months, but where a Confulta-
tion is granted upon the matter of a Suggeltion : And fo the Chief
Juflice dec'ared the Opinion of the Four Juilices, and thereupon a
Rule g!ven,That the Prohibition fliould Hand, and . the Defendant
notwithftanding fuch Plea aforefaid in Bar of the Prohibition may
plead in chief to the matter of the (aid' Sugge^ion, ^(Mi he will
'"^ P P difi:>utf-
388 Of Tithes. ^
difpute it,then he fliall have feveral Confultations on the faid Li^
(h)m\.5 Car. feel (Jo). Thus ( as aforefaid) in a Prohibition for Tithes it was
vShS Hr ^^ ^'H"^ ^^''^ J"^^'" ' '^h^^ '^ L^"^^ ^^ overflown with
Jones Rep. ° W ater,and afterwards gained by Induilry, Tithes (hall be prefent-
ly paid, although it had been overflown time out of mind ; for
thole Lands of their nature were not barren , and the Statute of
1 Ed.6. doth not intend, that Tithes ftall not be paid within feven
Sheringtcn and y^**"^'^"^ ^^ ^"^^ Lands as were meeriy Barren^ and made good
Bleemood'i byFoldage or other induflrious means. And fo it was Adjudged
Cafe. Pafch. ij^JacB.K. in the Cafe between Witt and Buck^xn a Prohi-
Cro.par.i. bition upon the Statute of ^Ed. 6. cap. ig. the Claufe touching
Barren and Heath-ground, of which after improvement,no Tithes
to be paid thefpaceof Seven years next after the Improvement:
For a Prohibition It was fliewed , That this Land , for which the
BuW.par. 3; Parfon Libelled for Tithes, was Marlh and Sandy Land,and cover-
ed with Sale-water, fo that time out of mind no Grafs hdd been
known there to grow, nor any profit at all made of this, until now
of late time,byand with the great colls, charges , and induftry of
the Tenantjthis ground had been lately gained from the Sea , and
from its overflowing, by repairing and making new Banks and Sea-
walls,and by continual repairing of them, and fo he had now con-
verted the fame into Arable Land, where he had Corn, and of this
Land the Parfon Libels for Tithes in theEcclefiaib'cal Court : And
upon- this matter thus fhewcd, a Prohibition prayed , beina to be
difcharged from payment of Tithes of this Ground for Severfyears,
this Statute being thus made for the encouragement of Tenants to
make improvement of their Land . Coke Chief Jullice , It v/as Re-
folved in one F^m«^?o«'s Cafe upon this Statute of 2 Ed. 6. that
Wood-ground is not Barren-ground within this Statute: This was
there Adjudged,That if one do ftock and grub up Wood-ground,
and after convert this into Arable-ground, he hath bv this meliora-
ted his Landjbut with great coft and labour,yet he ftiall pay Tithes
for this ground prefently J for that Heath and Urr en-ground , in-
teaded to be within the Statute, ought to be fuch Land as is fuapte
naturafierths^znd Barren. Do^mW^^Jullice,ASaItMarfh,if this be
tenced and fo made good Meadow, (hall pay Tithes prefently ; yet
before this was fo fenced, no Tithes thereof payable. Coke, this
Land Ihall be out of the Statute,out of the claufe of Difcharge for
beven years, notwithftanding this charge the Tenant hath been at
m gaining this Land from the Sea- for to have this Land within the
claule of Difcharge within the Statute,it ought to be Suapte natura
Barren, which here it is not, but by accident , and by the over-
idowing of the Sea. The whole Court agreed in this, That bv this
^ btatute Barrmgroundx^ fuch ground as will not bear Corn of ir.
Of Tithes, ggp
feJf, without very great coft in the extraofdinary munuring of itj
and therefore, that this is no fiich Barrm grounJ within the Sta-
ture, as ought to be difcharged from payment ef I'itheii bur thai
Tithes ought to be paid for the ftme, and that the Vmlhn had juft
caufe to fue for his Tithes in the Ecclefiailical Courtj and there*
fore the Prohibition was denied.
Beech Trees regularly arc Tithable ; yet in a County v/here
there is a fcarcity of Timber, and where Beech is ufcd as Timber
for Building or the like, there poflibly they may be difcharged of
paying Tithes ; and therefore in Trin. 58 Eliz,. it was Reloived,
That Tithes fhall be paid of Beeches, althougli they are above
twenty years growth, for they are not Timber. Yet in Holiday
and Lee's Cafe in a Prohibition it was Refolved , That Tithes
fiiould not be paid o^ Beeches of above twenty years growth j {i). (i) More. Rej>,
And in Pindar's Cafe "it was alfo Refolved, That Beeches above f^o^^J'^^j^ *c
twenty years growth, being Timber, fhall not pay Tithes; yet ^"L *^^ r
in a Country where there is plenty thereof, they are not tobe ac- 7,^ ^ ' i^J
counted Timber, or Tithe-free. So that Beeches m their ov/n na- c.B.Pmders
tare are not computed Timbei'- trees, and therefore Tithable, ex- Cafe,
cept where by the Cuftoni of the Country, where there is fcarcity
of Wood, they are accounted Timber-trees, in which cafe they are
not Tithable; (/) The Judges of the Common Law have Refbl- ,. . ,,
ved,'That all fort of Wood that is ufually employed for the build- Pafch 16 tac
ing ofHoufes, Mills, &c. are Grofs Woods, and within the Sta- c.B. mPhider
tute of 45: £ J. 5. caf. '^. of which fort are Oak, Ajl), Elm, Beech y and Spencers
Horfe'Beech,dc Horn'bean,aga'mQ: theopinicm in Molyns Cafei(»?) Cafe,
asalfb in Man &c Somertons Cafe, where it was faid by Tanfield^^^ '*, ' ^
Juflice, That Beech by the Common Law is not Timber : and fb Tithes, c. 4.
he faid it was Adjudged in Carj and Fagetis Cafe; and in that cafe
it was holden. That Tithes fhall not be paid for Beech above the
growth of twenty years in a common Country for Wood, as in
BuckinghamjJjire, for there it is reputed Timber; but in a plentiful
Country of Wood it is othcrwife, fore tliere it is not Timber, and
Tithes fhall be paid of it, as Sylva Cadua^ for which Tithes fhall
be paid under the growth of z o years (?i). ,
Bees pay no Tithes by thei of^ Sv/arm,but by the I oth meafure ^"^ V'^ ^^^^
of Hony, Sc the Tenth weight of Wax ; and are Predial Tithes, and Sorncrton%
Birch-Trees are Tithable, though above lo years growthi(oj & Cafe. Browni.
therefore in Fofier ^nd Leonardos Cafe in Attachment upon a Pro- i- par- S -in-
hibition for Suing for Tithes of Great Wood, again ft the Statute C"-* ^^°''e- C^^-
of 4 5 Ed. ^. it was Refolved. i. That o( Birch Tithes fhall be paid, '^7', i^/^-
for that they are not fuch Wood as the Statute intended, as ferving
for Building. a.That O^ik and Elm cut down before the age of 20
years fhall pay Tithes; for till they are of that age they are not of
P p p 2 that
c
290 Of Tithes.
that value as the Lav/ regardeth for the purpoles aforeiaid. Alfo in
Fofier^nd Peacock's Cafe it was Refolved, That for Birch above
(q-^ More. the ag;e of ^o years growth Tithes fliould be paid (7).
* Bricks are not Tithable, as was Adjudged in the Cafe betwixt
{r) Mich. I p. Liff and fFatts (r).
Eliz. R. R. & Broom for Fuel (pent in the PariOi is not Tithable; (s) but if (old
^ Pafch. 34.EI. jf (}j.^ij pay Xithes, unlefs the Owner can prefcribe or prove a Cu-
?s)Movc 12 ftom of Tithing Milk or Calves of Cattel kept on that ground ;
(0 Pafch.'4c but regularly Tithe is not due o^ Brcc7i? {pent for Fuel in the Pa-
Eliz. ^upn rifhioners houfe within the Parilh (f),
& Lucas, Ad-
jud. per Cur,
c
Jheszre computed among the MixtTithcs, which with Colts^
,^,^ Kid^s, Sec. are within the number of Tithes in kind; the
Parlon muft have the Tenth thereof whenever it comes, if there
be no Cuftom to the contrary, for it is a good McJas Declmandi
for Tithes of Calves, to pay a Calf for Tithe, if he hath Seven in
one y€ar; and if under Seven, then to pay a balfpcny for every
Calf "for Tithes ; and if he fell any Calf, he fiiall pay the Tenth
f«) Mich. M- P^'*'^ o^ ^^^ P^^^^- W Cahes (as alfo Lamhs) are Tithable when
jac.B. R.Lfs they are Wcanable, and able to live wkhout the Dam; if they be
and Collin'% fo^^ tjje Parfon hath for the moft part the Tenth peny in moil
^^^^' places, unlefs fomthing be in the Cuftom againlt It : Alfo the
I'ithe oiCaheSy Colts, &c. is to be apportioned with refpedl to the
places where they were engendred, brought forth, and nourifhed ;
but Cuftom muft prevail.
Cattel kept only for the Plough and Pail, pay no Tithe : alfo no-^
Tithe (hall be paid for thePafture which is eaten by the Ox€?i of
the Plough, or by the Cattel of the Pail. Mich. 9 Jac. Baxter &
Tr, I s Jac. B. Hope, per Curiam. No Tithe fliall be paid for Horles of the Plough^
lelJe & Trade, fbr the Parfbn hath the benefit of their labour in the Tithes of the
Prohibiten Coj-n. Xithes are not due for the young Cattel, which a man rears
li^"^f ' R n ^or fhe Plough, for they are for the manuring of the Land whereof
Dr.B^fi'e & the Parfon hath the Tithes, M. 14 Jac.B.Watley SiHanberrj. Re-
WilliaL, fblved,& Prohibition granted, Mich, i j^Jac.B.R.Joyfe&i Parker.Rc-
Piohibition Iblved, & Prohibition granted, Trin. 1 x Jac.B.R. Mafchal&c Price,
granted. ^^^ Curiam. No Tithes are due for the young Cattel which a man
Er' 'k ^r rearsfor hisDairy; dia.Caf.Joyfe.ci MB. CafKneehon, Prohibition
SitVcoZr granted. If a man according to the Cuftom of the Country fow
Confiihation his Land to feed his Horfes for Tillage ; and the ufage be to fofter
denied, the Hoffes to feed upon that Land, without any other medling
there-
Of Tithes.
291
therewith, the Parfon fliall not have any Tithes thereof, for it is ^^
nothing butPafture for^fuch Horfes. If a man buy or breed Cattej, M-B Jac E R.
feed them and fell them, he fhall pay Tithes thereof; otherwKe, if^*"* ^*"*'-/^' ^*'^'
he buy or breed them, feed them and fpcnd them in his own houfe. '^^" '' ^"
Nor fliall a man that feeds Sheep on his Land, and after kills and cTfe TilL.
cats them in his own houfev/lthin the Parifh, pay any Tithes there- Adjudged. Tr.
of. If a man buy or breed barren Cattel,as Oxen and Steers^ & after 3 8. £/. B. R/
fell them, he (hall pay Tithes for their Pafture,for they cannot yield *"^^'° ^^^^ing- ■
any other Tithes; otherwife it is of Barren Sheep, as oiWeatUn^ for ^""^ ^^'%
they can yield Tithe of their Wool. If a man keep Horfes, which^L' M^jCaV
are Barren Cartel, to fell, and he fell them accordingly, he fhajl pay B. R. F47 6c
Tithes thereof. But it was refolved in ivrryand Longs Ca(e, That^''".?* /'^'"C^''--
Tithes frail not be paid of any Cattel eaten in the ParifhionersFa-'^^'-'^J*'^'^'
mily, no more than for Cattel reared for the Plough and Pail. mlf''''^'" ^
Cnttd therefore or Beafts for the Plough or Pail are not Titha- ' ^'
blc, otherwife in cafe they be only kept for fuch ufc^ till they be
ready for the Pious h or Pail, and then fold away, in fuch cafe they
fhall pay Tithe, being fo fold for profit. And if they ftray from one
to another fide of a Common belonging to two Pariflies, no Tithe
is payable for this to the Parfon of the Parifh where the Cattel do ^'f- ^ ^'"'-
flray. And as Dry Cartel, though bred for the Plough,areTithabIe, h^'JqS
if they be fold away before they are put to that ufe; fo alfo are Fat- Brownl. i.par.
ted Cattel, if they be fold or killed for the Houfe, but according to ace. Trin. 20.
the Cuftom of the place, {a) Likewife for young Cattel, as C^/wj,>^- Winch.
Lambs, Colts, Pigs, &^c. where their Dams are removed from one ^ ^* ^^*^'
place, to another, a Rate-Tithe is payable to the Parfons according rr; mIcl''^
to the time of their abode in the feveral places, from the times ofjVc. B. R. *
their engendring, by the Month-Rate. (/') Aifb Cattel Tithable ^'^^^'^ Cafe,
feeding in any waile place, not commonly known to be in any Pa-'^^'^'^- 2- Car.
riih, are Tithable to the Parfon of the place where the Owner of j^^' ,),-^"'^'^^^%
the Catrel doth dwell- But if Cattel do feed onehalf of the year ^^MarJa. /a'!'
in one Parifh, and the other half year in anoth'er Parifh, the Tithe (.'^jW '
fhall be equally divided between the i wo Parfons of both Parifhes: Difmes i6,
fo proportionably for a greater or Jcis time, provided it be the ^^"^ '^•
fpace of a Month or 50 days;butof any lefs time thana Month,nb p"^^?^^^'^''
Tithe is payable, (c) If Cattel be pawned or pledged, the Gaaee ^;/Tcim! ;Jac,
fhall pay the Tithe of them, becaule he is owner of them for the B. R.Bic. '
limcj but if a man Bail Cattel or other goods to Re-bail, Tithes Difmes i ;.
of them fliall not be paid by the Bailee, becaufe he hath no proper-
ty in them, but only a Rebaiier (J). ^^.^ p^,rj^ ^,
Chalk and Chalk- pits are not Tithable. Car. Adjudg.
Cheefe paying Tithe, exempts the payment of Tithe- Milk wliCre- ace. Hugh. Ahr.
of the Cheefeis made. Ete contrc. So that Cheefe is not Tithuble
wliere the Milk is I'ithcd, Et vice virfa. Thirefore to prefcribe to
pay
3P2 Of Tithes,
pay the Tenth Cheefe betv/eenM<a/ and Augufi tor all the Tithe
U) More ^'^^ within the year, and not the Tenth part of the Milk, may be a ■
Cafe iz'/c*. good Prefcription. (?) And where Milk is Tithed in kind, there
no Tithe-Cheefe is due: In which cafe, as in ail others of Tithing,
the Cuftom of the place is to be obierved.
Cherrj-'Trees in Buck'mghamjlnre have been Adjudged Timb:r,5c
(APafch. Tithe-free (/).
1 7 Jacr B. R« Chicken of all Tame- Fowl are Tithed in kind, according to the
Cuftom of the place. No Tithe fhall be paid o^ Chicken, for that
there is paid Tithe-Eggs j and Prohibition granted. Hill. I j JacB.
R. Refolved.
W Hill. 1 8. ^^^i' '^ "^"^ TithabI e (g).
jac. B. R. in- Clothes Fulled in a FuUing-Mill pay no Tithes (h).
tcr Doderidge Coles are not Tithablej therefore a Prefcription de non Deci-
and JoJmfon. mando (as to that) is good. (/) No Tithes fhall be paid de jure for
O) -£fe B. C°^^- ^^^^- ^4 J^c. B. R.per Ho.ghton,
R. by Wrtty, Common of Eftovers, or the Wood which a man burns in his
and all the houfe, doth not pay Tithes.
other Judges. Comfofition Real is one of the ways or means whereby Tithes
may be difcharged : It is where the Incumbent, Patron, and Ordi-
nary, by Deed or Fine, do agree that fuch Lands (hall for ever be
freed and difcharged of all manner of Tithes paying an Annual
payment, or doing fome other thing for the profit or advantage of
^^) C0.4. 44.a. that Parfbn or Vicar to whom the Tithes did belong, (/^) from
2ln{l.65y. which Compofitionsof Preicriptions de Medo Decimandi\\2ive or
Ti^^'^Sc ^oui^l'^ve had their Original. But thefe Real Compofitions, fo
Hob. I J 6^ ^^ ^^ ^^^^g^ ^^^^ SuccefTor of the Parfon or Vicar that made the
fame, fecm now to be reftrained by the Staute of i g Eliz.cap. i o.
whereby they are prohibited from making any Grant for above
a I years or three Lives, and that with the accuftomed yearly Rent
referved. And if the Parfon or Vicar make any Compofition with
his Parilhioner without his Patron and Ordinary, it (hail bind only
for the Parfbns life, and during his Incumbency. This Cowfofition
is either between Parfon and Parifljioncr, or inter Clericos ; if it be
between Parfon and Parifhioner, and it be touching Tithes paft,
the Compofition is good, though It were without any'Confideration
at all: but if it be touching Tithes to come, it may be good as to a
payment of Tithes only in part, but not good as to a non-payment
of any Tithes at all; nor is it good in part without the Bilhops ap-
probation and confirmation. If the Compofition be inter Clericos,
and the Tithes be Perfonal Tithes, it holdethnot: but if they be
Predial Tithes, the Compofition holdeth, the Approbation of the
Bifhop of the DIocefs being thereunto had. So that the Compofiti-
one for the remitting or entirely taking away of TIth is not good
Of Tithes. 5^2
in Law ; but a Compofitlon with the Parfbn or Vicar to have bur
the thirteenth Sheaf for his Tithe, was held to be a good Compofi-
tion, ami iliould bind the Parron(/). Compofition may likewife (/; Hagh's
prevent the payment of Tithes in kind, and if it be ma^e wi:h a l*^^fi"!Law,
Parfon or Vicar to pay a Modus DecimanM,^hlch. hath continued ^^P-^7«
time out of mind, Cullom being equivalent to Law,Jt is good, and ^1 o h 5 ^^'
fhall bind the Parfon and his Succcflbrs (;;^);and although a Modtis 6 £.3.27! '
Dec'imavdi cannot begin at this day,but mull be by Prefcn'ption,yet 1 7 E.j.1 r.
a Compofition may be made,which fhall bind during the life of him '^ ^.4.!}^
that made it (w). The Cafe was, A Vicar did contra6t with his Pa- '^ uf^f*
rifhioner topay fo much for increale of Tithes, and died : his Sue- \\ H/diisli
ceflor fued in the Ecciefj iftical Court for them. A Prohibition in 3yH.5.j,
this cafe was granted by the Court. The words of the Contra6t 2.6 H.8.7.
were (jitter fe convenerunt :) It was holden,that this was not a real 2-7H^-2.o.
Compofition,although that the Bifliop did call it Realis Compojitw^ b^pfu'
for his calling of it lo, doth not alter the nature of it ; but it re- cir.m Hitch-
msins a perfotmi Contra61; , and fb fhall not bind his Succellor, al- fo/^VCafe,
thouc^h it were confirmed by the Bifhop. It was faid hy Mallet Ju-
ftice in this cafe, A Real Contra61: , although it be made between
Spiritual perfons^and of Spiritual things,is only queftionable at the
Cpmmon Law (0}. Compofition fhall bind during the lite of him (0) Pafch. 17
that made it, though not hisSuccelTors C^). Car. BR.
Coneys taken in a Warren fhall pay Tithes; yet they are not pre- Hitchcock Ss
Qial,bur perianal Tithes. Sed Q^ Whether Tithes- fhall be paid of ^l^^"'^'^
them-, becaufe 5cr/&/<?/ Juftice, They are not Tithable but by Cu- Maifh 87.
ftom, I 5" Car.B.R^For no Tithe de jure without a Cuflom ought to (p) Mich. 6
be paid forthem,for they areFer^ natura,Trm.^ Car.B.R.Worden JacC.B.Cafe
and Bennet*s Cafe ; after a Prohibition granted, a Conftiltation de- ^^^^'^^''^y Sc
mt^fer Curiam for the rcafbn aforefald, Pafch.l q Car.B.R.SWJo. "^^''"'
Bre7vena.nd Dr.Br^^i/l>s Cafe per Cur. a Prohibition granted, and pa{bh. 15 Car*
Hil.l 5 Car.B.R.Vinccnt and Tkfz's Cafe,a Prohibition grantcd,and Ad|udg.acc.
for Prohibition pleaded by the Parfbn to have them by Prefcrip-
tion. Mich, i ^Car.B.R.lVilliams and Wilcox s Cafe. Or if a man
fteals Coneys out of a Warren, he fhall pay no Tithes of them, be- fbld.
caufethe Lawgivesthem no property in them; nor fhall the right
Owner pay any Tithes of them,becaufe he hath no profit by them.
Corn, pays a predial Tithe, as that which comes, partly by the
Induflry of M3n5and partly of the Earth, Mich.% JacC. B. Mag-
na Charta (^49. And if a Cuflom be alledged, That the Parfbn
fhall have but the Tenth Sheaf of Wheat for all the Tithes of all
manner of Corn and Grain, this is no good Cuftom (r). Yet ("r) 5 g Eiiz
Corn of all kinds fowed is Tithable according to the Cuflom of C.B.
the place ; and is commonly Tithed by the Tenth Shock, Cock,
or Sheaf, where the Cuftom of the place is not otherwile ; but
not
1^4 ^/ Tithe:
noE to put the Par fons Tenth upon end in Shocks, unlefs the Cu-
(;) Smitl^'9 ftom of the place be ia (s). And if the Owner will not cut hisCom
f^^'^p\ before it be fpoiled, the Parfbn is without remedy (t). And if he
Dr &;"stu' ^' ^^^^^ change the Corn or Grain Cowed m the lame ground, fuch
•change of the Corn fo (owed doth change tlie Tithe Co the fame
kind of that Grain. And if a man pay Tithe of Corn , he dial],
not pay any Tithe for the Stubble, which grew the (ame year on
that Land. Hill.6 Jac.B.^l.l ^.S/nnos Cafe ^cr Cur. (^' Calc ilid.
Pafch.f Jacper Cur. & Mich.^ Jac. Bc^octer & Hope , for the Af-
ter-grafs, d'' i H.^Rof. par. nu.<)-^. No Tithes for the Aglftment
in fuch After-pafture. And if the Parfon hath Tithes of Corn one
year, and the Land be lefr without Seed the next year , that {6
it may be plowed and made ready for Seed the third year , no
Tithes fliall be paid the iecond ; for by lying frefh the Land is the
better, and the Paribn will have the i3etter Tithes the third year.
Tafch.j Jac.Smith'*s Cafe. By the Statute of z, Ed.6.cap.i 3. the
Parfbn or Vicar is priviledged to come upon the Land to fee the
Tithes fet forth : For by thefaid Statute it is Ena6ted, That at the
Tithing-time of Predial Tithes, it (kill be lawful for any to whom
Tithes are payable, or for his Deputy or Servant to (ee the (aid
Tithes to be (et forth and fevered from the Nine parts, and quiet-
ly to take and carry them away. And as the Par(bns Rights are
hereby fecured from the danger of having his predial Tithes fub-
tra6led : (b lilcewi(e the Law hath provided, not only for the pre-
vention of his being defrauded therein, and for his quiet removal
and carrying the (ame away ; but alfo for an open, frce,and unmo-
lefted way and pafTage through which to carry the (ame away, as
appears by HalJejhCzCe. The Ca(e was this: H. procured a Pro-
hibition againft H. and declared , that the Defendant had fued
him in the Ecclefiaftical Court for a Way or Paflage; he was pro-
prittorof Tithes in the Parith of M. and that the Common way
to carry the Tithes out of the Plaintiffs Land was by a Clo(e called
S. and that the Plaintiff had ftopt it up , when in very truth the
Way was by Prefcription by a Clo(e called PF. and that he had
pleaded it in the Ecclefiaftical Court, and the (aid Court would
not allow thereof, and for that the Cognizance of a Pre(cription
for a Way ought to be tried at the Common Law, and not in the
faid Court, &c. Whereupon the Defendant demurred , and by
the Opinion of the whole Court a Confultation was granted ; for
that the cognizance of Ways for the carrying of Tiihes belong
, to the Court-Chrtfiian, as appears by the Statute of 2 Ed. 6. and
BR Halfey ^' Fttz.N.B. in Confultation _, and Ltndivood de Dechn. {u) When
verf. iValfej. Tithes of Com are (evered from the Nine parrs , an Adlion of
lones Rep. Tre(pa(s lieth againft any that fhall take them away , whether he
be
1
Of Tithes. 39 s
be the Owner of the Land or a Stranger, {w) Alfo an Aaion o^J^^^°'
Debt lieth for Predial Tithes, as of Corn, Wood, Grafs, Fruits, ^^^^^^^^j
Hay,&c. and treble Damages recoverable upon the fald Statute of ^^ /
2 E^. 6. 1 5. But not fo for leffer Tithes, as of Wool, Lamb, &c.
nor Mony given to the Parfon in lieu thereof; but for each of thefe
Suit may be commenced according to the Statutes of 17 H. 8. and
1 £^. 6. 1 3 . & 3 1 H. 8. 7 . (x). So that if the Owner of the Corn ^^ ^^^
fet out his Tithes, and after take it away, the Parfon may iue him ^j^. i]^,
in the Ecclefiaftical Courr, or bring an AAion of Trefpafs againft
him : But the Parfon may not fue a Stranger in the Ecclefiaftical
Court for taking away the Tithes which were fet out. In Heles Hill. 6 Jac.
Cafe againft Fre/;^«^6W, the Refolution of the Court upon Two Brownl^Rcp.^^
Cafes upon the Statute of ^ E. 6. for not fetting forth of Tithes \^^^^[^^
was this, 'VIZ.. A man poflcflcd of Corn fells it, and before Two
Witneffes fets out his Tithes, and afterwards privily takes away
the Tithes; and the Parfm fucs him upon the Statute for Treble
Damages , for not fetting forth of Tithes : And the Defendant
proves by VVitntffss that he fet forth his Tithes ; yet the Fraud is
provided againft by the Statute, for the words are {without Fraud
or Receipt.'] In thefccond Cafe, One fecretly fells his Corn to one
who was not known, and afterwards the Vendee commands the
Vendor to cut the Corn, which he doth, and takes away the whole
Corn without fetting forth his Tithes ; the Qucftion was, who
fhould be fued for the Tithes : and the Court held, that the firft
Vendor fhould be lued, for it was fraudulent. And where a Wo-
man, bing Proprietor of a Parfonage took ^. to Husband ; a Pa-
rifhioner within the Parifh fet forth his Tihes and divided them,
and then immediately took them back again; ^. the Husband alone
fued for the Treble value according to the Statute of z E. 6. Two
points were moved, f i) Whether that were a fetting forth within
the Statute ? And by the Court, that it was not ; and fo hath
been Adjudged in 43 & 44 E/?^:.. and l Jac. (a) Whether the
Husband may fue for the Treble value without naming his Wife ?
And to that the Court would be Advifed; for though the Husband Fordscxl
may fue alone, where a thing is perfonal for which he f lieth , as the ^'^Z' n, a.
Books of 4E^.4. 3 1.7 EJ.^6.i s E^'4" 5- & ^ i- are; yet where -^ '
the Statute faith, that the Proprietor ihall have fuit for the not
fetting forth, &c. the Husband is not intended Proprietor as^ the
Statute intend?, but the Wife, and for that the Wife ought to joyn
For the due manner of Titling Corn, the Parifhioner ought of
Common right to cut the fame, and to prepare it for the Parfon,
and tofeparate it from the Nine parts ; he ought alfo of Common
ricrht to make up the Corn into Sheaves, but is not obliged to ga- Hin. 5 Jac. !^,
■ ther and fet it up into Hillocks or heaps, for the manner of Tithing pla M>«r €n^
a q q is
39^ Of Tithe s^
is good, if the Corn be thrown out in Shocks; and being (b (et out
Trin. II. Jac. they become Lay-Chattels. In Gmn and Merryiveather^s Gale it
B. R. Gui7i & ^yas fald by Dodcridge Jufticc, that if one defame and fcandalize
theP'^cl^ . ^^^ Parfbns Title to the Tithes, although he be net pLinifhable for
Roll. Rep. fh's in the Temporal Courts, yet he is puniOiable in the Eccle-
fiaftfcal Court; he faid alio, that when Tithes are fetout, they are
then Lay- Chattels J and if a Stranger carry them away, the Action
lies not in the Ecclefiaftical, but Temporal Court ; etherwifeit is
if it were not fevered from the Nine parrs. Ley Chief Jullice
Agreed it, and faid, that if a Stranger take the Corn before Seve-
rance of the Tithes, the Parfbn fhall lijein the Ecclefiailical Court
for Tithes againft the TrelpafTer, and not againft the Terre-tenant;
And where the right of Tithes comes in queftion. Prohibition (hall
not be granted. Nor fhall Fraud or Covin prevent the payment
of Tithes; for in a Cafe of Tithe-Corn, where the Cuftom of
Stehs and £. jn the County of B. was alledged, that the Parfbn ought to
Q^/' have the Tenth Land of Corn, beginning at fuch l^znd which was
Mores Rep. ^^^^ ^^ ^^^^ Church ; the Occupiers of the Land, to defraud the
Parlbn by Covin, did not (bw the Tenth-Land, nor manure it y
yet the Parfbn fued for Tithe in kind, to have the Tenth Cock for
Tithe of the Corn fbwed,and a Prohibition awarded notwithftand-
ing the Covin, becaufe he had Remedy at the Common Law for
the Fraud.
Co'ws that yield Milk, no Tithe is to be paid for the paflurethere-
of ; and if a man hath but one Cow, and no Cheefe made of the
Milk thereof, the Cuftom of the place mu ft bcobferved, fb that
(bm thing be paid for the Tithe thereof, otherwife no Cuftom will
bind.
Curtelages, or places adjoyning to Manfion-houfes, and applied
to Seeds, Herbs, &c. are Tithable in kind, if the Parf(>n make not
an Agreement for the fame; otherwife it muft be Tithed in kind,
by fctting forth the Tenth-part for the Parfon when the owner re-
ceives his Nine parts.
Cuftom is, where a Right to many is procured in Common and
Publick; .is Prefcription is privately to one. If the Cuftom be of
tranflating of Tithes Predial (as in Compofition) then it hold-
cth: Otherwife, if it be of Tithes perfbnal. But if it be of not
yielding Tithes at all, it doth not hold ; for Cuftom of paying
nothing at all, is not good ; but if it be only of yielding lefs than
the Tenth, it holdeth both in perfbnal and p redial Tithes. It
holdeth alfb as to the place where Tithes ought to be left, of the
Time when to be yielded , as alfb of the manner and form of
yielding them. So that although Cuftom f which chiefly refers to
a Place, as Prefcription doth) to a perfbn cannot totally take the
Tithes
Of Tithes, 3P7
Tithes away, yet it may limit and moderate the payment thereof.
Notwithftanding in fome places and cafes, a Cuftom applied to a
Country to pay no Tithe (asin4oParifhes for the ^//<^ in SuJJex)
is good ; but generally fuch a Cuftom is not good. Likewife, a
Cuftom tending to the impoverlfhment of the Parfbn or Vicar is
no good Cuftom. Mich. 1 1 Jac. C.B. inter Jux and Sir Charles
Candijh. Likewife a Cuftom to pay Tithes truly, without view
of the Parfbni is not good. (/) Alfba Cuftom alledgedto pay (\f; Hob. 107.
the Tenth Sheaf of Wheat for the Tithe of all mannor of Corn
and Grain, is not a good Cuftom. di^. Caf. Jux & 1% EliZ.C.B.
^djudg. But a Cuftom to pay Tithe-wool at Lammas-day^ though
due at Shearing, is good. (2:,) But fuchis the ftrengthof a Cuftom,
that it cannot be difciiarged by a verbal agreement for mony. {a^ (z) More. Cafe.
Cuficm may make that Tithable, which of it felf is not Tithable; i^So.
{h) and may alter Tithes in any other thing, which will be a Mo- ^f ^°^- '°^-
dus Decimandijfufhcknt to bind the Parfon and his SuccefTors. Qc) L/^^'cV^^'
Cufiom is properly Triable at the Common Law upon a Prohibiti- Cafes i ^ ^6
onj but a Confijltation may be granted on a Prohibition granted 48.
on a Surmize not proved within Six months; as was Adjudged,
IJiU.6yac.C.B. in Caf.inter Sharp and Sharp.No/.Rep.Cufiom and
Trefcription ; both ought to be without interruption, conftant, &
beyond the Memory of man,perpetual, that is, no man in being re-
members to the contrary ; for it leems, if any man, orany Authen-
tick Record, or other fufficient Evidence can prove it was other-
wife at any time fince the firft of JR. i.'viz,. 1 189. the Cuftom or
pfefcriptlon at Common Law would not hold. (/) Albeit by the ,r ^ , «
Statute of 1 E.6.C. i 3. Tithes are to be yielded and paid as of right /^^ °' ^* " *
they had been within 40 years next before; which time fomewhat
agree* with the Ecclefiaftical Computation: And by the Statute of
17 H 8. e. 20. they are to be paid according to the Ecclefiaftical
Jl.aws and Ordinances, after the laudable Ufages and Cuftoms of
tlie Parifh ; which was alio after confirmed (as to the lawful Ulage
and Cuftom) by the Statute of 32 if. 8. 7.
Q^q q z D.
3^8 ' Of Tithes,
\
D.
D
^Ecima Majores, Cuch. as Corn,Ha7,&-c. belong to the Parfon:
' Dicim^ Mtnores or Minuta^ as Saffron,Herbs, &c. do be-
long to the Vicar. Tafch. 38 Eli-z,. B.K. Bedmg & Feak\Czk &
Mich, I Car.CB. Sir Rich.UdaUnd the Vicar of ^/Ws Cafe.
Deer, though they are Fera natura, yti they may be given for
TiLhesi and although they are not Tithable of them(elves,yet they
niay be given for a Modus Duimandi. Hill. 6 Jac. C.B, the Vi-
car of CW^'s Cafe. ^^^r;?and Sharp's Czfc. Noy i^^.acc.
Deprivation : A Parfon may after his Deprivation fue in the Ec-
clefiaftfcal Court for fubtra^ion of Tithes, which were due to him
before his Deprivation, and a Prohibition will not lie in the Cafe
Adjudged, Hill. f^^Jac. Coleh Cafe.
Dijcharge of Tithes may be either by Cuflom, Prefcription,
Compofition, Statute, Unity of Pofleffion, or by Priviledge, as to
r^)Co. I. pa ReHgious Orders now not of ufe. f^) There may be alfo'a Dif-
1 3'& jl h' 7 ^^^'*^^ "^^ ^'^^^^ ^^ ^Sainft the Vicar, by the pavment thereof unto
Co. 44. & ^^^ l^-^rCon. (h) And it may be by Real Cornpolition, 0) but it
Brownl. 2. cannot be by a Verbal Agreement for Mony. {kj And if there be
r?\ v'l ^ I^J^^harge not of the Tiihes thcmfelves, but from the Exadt
$6 ' P^y^^^^ thereof by a Modus Deciwandi, or Annual recompence in
(/)Lanc. 17. ^^'sfaaion thereof, it muft be by Cuftom or Prefcription. (/)
Hob. 7.6% ^y ^he Common Law-a Lay-man, although he were capable of a
i9^, 3 op. ^ Difcharge of Tithes by Grant of the Parfon, Patron, and Ordi-
f^)Hob. ,75 nary, or by Compofition ; yet at that Law none had a capacity to
i;i) Co 2' B ^^^J. ""' '^"^'"'^ '^'^"^^ ^^^^ ^"^y Ecclefiaftical pcrfons, or a Mixt
of mmhefcrS perlon , as the King, (m) And by the fame Law, if a Bifhop
Cafe. were abfolutely Difcharged of Tithes by Prefcription, whilft the
Lands were m his hands, his Demifing thereof to a Lay-man
//j;Co.ibid. could not make the fame chargeable therewith («) For in
Wright's Cafe where the Bifhop of /F. was feized of a Mannor in
u'^i'u , J ^'^°P"^^'' Prescribed that he and all hfs Prcdeceffors
had held tiie fame >\Iannor, and the Demcfs thereof time out of
mind for him, his Farmers,Tenants for years or at will, difcharged
acquitted from payment of Tithes for thefe Lands; the Bifhop
made a Leafe for years of parcel of the Demefns : The Farmer of the
• Reftory Libelled in the Ecclefiaflical Court againfl the Leffce for
Iithes ; al which matter he plead in the Ecclefiaftical Court, and
the Judge there refufed to allow of the allegation in difcharge of the
Tithes: It was held in this Cafe, (i) That if the Lands of the Bifhop
were
Of Tithes. 3^p
were ablblutely Difcharged in his hands by Prefcription, the De-
mifing of I'r to a L^y-man could not make it chargeable with
Tithes, (l) That a Spiritual perfbn may Prefcribe in non Dici-
mando. (3) That therefulal by the Ecclefiaftical Judge to allow
the Allegation in Difcharge of Tithes, is not Traverfable. (6) In (0) Wright and
like manner the King being ftized of Lands, parcel of the Foreft Wright\Q%{Q.
of B. In Fee in right of the Crown, Difcharged of the payment of ^'■°' P^*"- ^■
Tithes, granted the Lands to the Earl of Hartford in Fee ; and it
was held, that the Patentee fhould be Difcharged of payment of
Tithes; and a Prohibition was granted in that Cafe, (f) Yet in (?) Mordant ^
another Cafe, where it was furmized for a Prohibition, that the Jf ^ Cummm s
Prior of B. was feizcd of Lands, parcel of his Priory, and held ^^.^ '
them till the diflolurion, Difcharged of Tithes, for his Farmers and
Tenants for life or years; that the Piiory was dlfTolvcd 27 H. 8.
that the King was feized of the Lands, and fhews the Statutes of
3^ //. 8. & X Ed. 6. and that the King ditd feized of the Lands,
that by mean Conveyances it was conveyed to J. S. and that the
Plaintiff being his Tenant for years, was fued by the Parfbn of B.
for the Tithes of thefe Lands. It was Refolved by the Court,
that the Lands wliich came to the Crown by the Statute of xj/i/.S.
fhould not be Difcharged from the payment of Tithes, but fhould
pay the fame, although the Lands in the hands of the faid Reli-
gious Perfons or Houfes were Difcharged from the payment there-
of, for that the Priviledges were Perfonal Priviledges, which were
extinguifhed by the faid Statute of Diflolutions, and there are
not any words in the faid Statute of ij H. 8. to fave the Privi-
ledges ; and the Statute of 3 i H. 8. being a fubfequent Law, had
not rcfpc6l to thcfe Priviledges. {cj) Likewife where a Parfbn- by ^^) Mich. 1 1.
Deed Indented leafed his Glebe cum omnibus froficuis (^Commo-dtta- Car. B. R.
libHs : It was notwithf^anding Adjudged, that the Leifee fhould be ^jdown and
charged with the payment of Tirhes. And in Branches Cafe Jt ^''^"*'' s Cale,
was Refolved, that an Union of Copyhold Lands, and of the Par- p°rki,iJ\nd.
fonage in the hands of the Parfbn, as Parfbn Iraparfbnee, was no H!?ui\ Cafe.
Difcliarge of the Tithes of the Copyhold Lands. And in this do. par. i.
Cafe itwasalfo Adjudged, that a Farmer of Lands might Prefcribe ^''-'^- ^'^- £-
in modo Decimandu but not in non Decimando. '/;■ "^ ^''
. ' vi i.''TciQ7'
The Statute of 3 i //♦ 8. gave all Colleges Dijjol'ved^ to the j^,^^^
Crown, in which there is a Claufe, that the King and his Patentees
fhould hold Difcharged of Tithes, as the Abbots held; Afterwards
the Statute of i Ed. 6. gave all Colleges to the Crown ; but there
is in it no Ckufe of the Difcharge of Tithes : The Parfbn Libelled
in the Ecclefiallical Court; and the Farmer of the Lands ol: the
College o^ Maid/hne in iCe«/- brought a Prohibition upon the Sta-
tute of 3 I H. 8. The Court was clear- of Opiniion, that the King
• ■ " • '' '■. had
400
Of Tithes^
Green and
Buskyri's Cafe.
Mores Rep.
^arh and
Spartmg'sC.
Mores Rep.
Mich. 6] AC.
CB.Cafe of
Modus decim.
Co. lib. 1 3.
had the Lands of the Colledge by the Statute of i Ed.G. and not
by the Statute q{ %\H. 8. But the Juftices doubted, the Lands
coming to the King by that Statute, whether they fliould be DiP
charged of Tithes by the Statute of 3 I H. 8. there being noClaufe
in the Statute of i Ed. 6. for Difcharge of Tithes; But it was Re-
folvcd by the Jufticcs, that Unity without Compofition or Pre-
fcription, was a fufficient Difcharge of Tithes by the Statute of 3 1
The Terfj piers \<reYeDiffolvQd, and their Poffeitions and Privi-
ledges by Acl: of Parhament 17 Ed. 2. transferred to St. John of
Jerufakm; and their Poffeffions by A61 of Parh'ament 32. //.8. caf.
24. given to the King: It was Refblved, that the King and his Pa-
tentees fiiould pay Tithes of thofe Lands,al though the Land fro^ri-
is fumptibus exccUntur, becaufe the Piiviledges to be Difcharged of
Tithes were proper to. Spiritual perlbns, and ceafed when the
perfon Spiritual was removed : And the Statute of 3 i H 8. of
Plflolutlons did not extend to fuch Lands as came to the King
by Special A61 of Parliament, as thofe Lands of St. John of Jeru-
fakm did, And Mich. 6Jac. C. B. in a Cafe de Mode Decimandi
k was (aid , that one may be Difcharged of Tithes fiv^e ways : ( i ) By
the Law of the Realm, 'viz.. the Common Law, as Tithes fhall not
be paid of Colcs,QuarrIes, pricks, Tiles, 6cc. FN.B.'^ ^.and ^^^.^4.
nor of the Afterpafture of a Meadow, 6cc. nor of Rakings, nor of
Wood to make Pales, or Mounds, or Hedges, &c. (i) By the
Statutes of the Realm, as 31 H8.1 3.4.5 £^.;. &:c. (;) By privi-
Icdge, as thofe of St. John of Jerufakm m England^ the Cijierti-
ans,TempIersy &c. as appears i o H./.ay/. Djer, ('4) ByPrefcrip-
tion; as by Modus Decimandi, annual recompence in fttisfa6lion.
(5) By real Compofition. By all which it appears, that a man
may be difcharged of payment of Tithes; yet a Lay-man ought not
to prefcrlbe in non Decimando, albeit he may in Modo Decimandi.
And this in effe6l agrees with Tho. Aquinas m his Secunda Secunda,
Quaji. 86. art.ult, vid. Dr. & Stu. lib. i. c. 55. fo. 1 64. And the
Caufes why the Judges of the Common Law permit not the Eccle-
fiaftical Judcres to try Modus Decimandi, being pleaded in their
Courts, Is becaufe that if the Recompence which is to be given to
theParfonin fatlsfadion of his Tithes, doth not amount to the va-
lue of his Tithes in kind, they might overthrow the fame: And that
appears by Lz«J2/^oflJ,Cc«///>. Mepham. de Decim. c.Quoniam prop-
ter, Tjerh. Confuetudines. For this Realbn it is fald a Prohibition lies,
and therewith agrees 8 Ed.^.l/^. vid 7 Ed. 6. D)fer. 79. and 18
Eliz. Dyer. 549, . . , .
InaProhibltioA.iuppnaSuitjn the Ecclefiaflicil Court, by the
Defendant the Vicar of IX. ^or tithes: A Prohibition prayed upon
his
Of Tithes, 4PI
Parfon of Dale, in Difcharge of his Tithes, ^nd the lame 1 ^^atheie ^^ ^ ^^4^J^^
diftllowed. The whole Court agreed, that this i\f.^«i between him ^^^^.^^ ^^^^j^^
and the Parfon, will not difcharge him from payment ot Ttthes,^ as j^^^i^i,. p,,. 3.
to the VIcariand therefore by the ruleof the Court a Conlultation
was granted. AKb the Court wasof Opinion, that where a Bifliop
holds^ Lands difchargcd of Tuhes, and he niakes a Feo&ment af
the Land, the Feoffee (hall be difcharged of Tithes, and he like
If the King hath ancient Foreit Lands difcharged of Tithes, and ^/g^Vownl
die King grants this Land, the Grantee ,s difdiarged of Tithes: ^^^^ ^^^^ ,,
And it § a General Rule, that he which may have Tithes,may be cafestn Lav,,
Difcharged of Tithes. So long as the Land is occupied by him who &c.
h,th th? Fee-rm.ple, which did formerly belong to the O^^^^ of
Cijteruans, it fhall pay no Tthes ; but if he let it for years or life, B-wnl. .b.d.
the Tenant fhall pay Tithes. For anciently there were many
large Eftates wholly exempted from pay ing T ith^s,as Land belong-
ing tothe faid Ct^ertian Monks, tothe^^^^ r^^/.r. and Hof-
pifallers: As in the Earl of Clannckard s Cafe, who Libelled.n the
Ecclefiaftical Court for the Tithes of Hay of a certain Meadow a~
gainft Dame Denton , who pleaded, that the Prior of ^. was
feized of that Meadow as parcel of the PofTeffions of the Priory,
and that they held it difcharged time out of mmd, ^c where-
upon Ifiue was joyned upon a Prohibition, and it was found for
the Plaintiff; for that the Land was only difcharged when it was_
Inthd hands of the Priory, and not when it was in the hands of
their Farmers, and they were of the Order of Qftemans, w^iere-
upon a Confultation was granted : and now a new Prohibition
was prayed, for that in the Ecclehaftical Court they had added to
the former Libel, when the Statute of 50 hi ^.cap.^. is That
o^hereas a Confultation tsMj granted ufcn a Frokhmon- that tba
fame Judge may froceed tn the fame caje hy ^mue of the former
Confultation, notluhfiandwg any other Vrokhttm V.oviM a|
-ways hat the matter in the Libel of the faid xaufe benot a tered,
Sged or otherwife charged. Dr. Vo^e, Dodor of the Civil Law
f.id, Fhat there was not any enlarging or charging in fubftance of
the Libel in quelHon ; for whereas in the former Libeht was,r;6^
they had ufedto payTithes time out ofmmd,now mtlieTecond Libel
\sM.dyhatalthoigbthePrtor^asdifcharged,pttbey,v.^^^^^
mers,^^. pa^d Tubes for a o, ; o or 40 years, & t^me out of mnd,
S.^..ChJuflicefakthatitfeemMthatthatwasnotanalte^^^^^^^^^^^^^
hut Dodendie & Houghton Juftices held, that tnat was an alteration
KSfornoibytia^
forTthes, though they. 7i;ere difcharged w the hands ^f^^'^^^,^'
id for tl^tth/lithes had been paid for ^.o.io^t^o years iince
402 Of Tithes:
the Statute aforefaid (the which is a fufficienc time to make a Pre-
fcription, according to the Law of the Civilians) they would charge
the Land with Tithes in whofe fbever hands they are, when by
the Statute it ought to be difcharged only in the hands of iomc,viz,.
the Priors; and afterwards Dr. Tofe pulled ofF the Addition, which
he had made to the former Libel, off from the Second Libel. And
'the whole Court faid, that if he proceeded upon that Additrion,
that Sentence fhall be given for Tithes, upon any Prefcription fmce
the Statute, that then they would grant a Prohibition. Af/c/&. 18 J<i<r.
B.R. Dame Lentonz Cafe and the Count oiClannckard. Roll. Rep.
far. z.
The Order of the Vramonftratenfes were difcharged of all Tithes
of their Land,thc which Manibus am fumptibus excolebant proprtis.
All the Chief Monks paid Tithe as well as other men, till Pope
Difcharge of Pafchal at the Council of Mentz Ordained, that they fhould not
7ithes. pay Tithes ^ie Laboribus fuis; and that continued as a general
Difcharge till the time of //. z. when Pope ^Jn^« reftrained it to
three Orders, -viz.. the GJlertians, the Templars, and the Hofpita^
lers. And the Dilcharge which the Order of the Pramonfiratenjes
had, was made by Pope hmocent the Third,by his Bull. And after
in the Council of Lateran, ne Ecclejia nimmm gravaretur, it was
provided, that the Priviledge of the Tewp/ars ihould not extend to
their Farmers. Vid. Cafe Dickenfon and GreenhaL Mick ixJacB,
K. Rol. Rep. X. part.
In Hurrejs Caleagainft^^-fr in aProhibition to the Ecclefiaili-
cal Court, forilay of a Suit there for Tithes of Lands which were
the pofleffions of the Hofpital ofSt.Joh» ofJerufalem,umn Sug-
gfftion that the Prior of the fiid Diffolved Houfeof St. John had
this Priviledge from Rome, which was by divers Councils and Ca-
nons; viz,. That of the Lands of their Predeceffors, which by their
own hands and coft they did Till, they were not obliged to pay
Tithes. In this Cafe it was agreed,- that this Hofpital was not
Diffolved by the Statute of ^im.c.i 8. of Dijolutiom, but bv a
Special Aa mide :^zH.y. c. r^.. by which their Corporation and
Order was Liffolved, and their PoffefJions given to theKing, with
all the Privil-dges and Immunities thereto belonging, which the
King granted to the Plaintiff in the Prohibition ; and whether he
Ihould hold them Diltharged of the payment of Tithes was the
qucltion. Hams Serjeant urged, that this Immunity was annexed
to the Corporation of the Prior, and his Brethren of the faid Hof-
pital, and doth not come to the King, it being determined by tfae
Diffolution of the fuid Hofpital ; and ib Adjudged in B. R. againft
the Book of 10 Eliz. Vjerzyy. 60. z.Coke, theBifhop ofW
fbeffer s Cafe, 14 B.znd the Archbilhop oiCanterbiirf^ Cafe,47.iS.
and
Of Tithes, ^03
and iSEliz,. Dyer 549. 16. Nichols Serjeant to they contrary, &
cited a Canon made by the Council o^ Mag. and another made by
Innocent 5. An. 1215. ^"^ divers others, and alfb the Statute of
2 H.^.^. and 7 H.4.6. and if Land be Difcharged of payment of
Tithes by Prefcrlption of not Tithing, and this Land come to the
King,^ the Priviledge remains ; and thefe Lands are given to the
King in thefame ph'ght and cafe, as they were in the Hofpitallers;
and affirmed the Book of 10 Eliz..Djer.l'j'j. 60. to be good Lawj
and that the aforementioned Cafes of the Archbifhop of Canter-
hmy and the Bifhop oiWtncheHer^ and the words of the Statuceof
3X//.8.14. gives the King not only the Mannors,Houfes,&c. but
alfo all Liberties, Franchifes, Priviledges, &c. In this Cafe it was
Confeffed, that it came by reafon of the Order of the Cefiertians^
as appears by the Canon ; And Hutton Serjeant arguing for the
Defendant, faid, that it appears by the Statute of x H. 4. 4. that
it is Perfonal, and that it differs from the Land which came to the
King by the Stat, of 31//. 8. For by that the King is Difcharged
of payment of Tithes, and fo are his Patentees 5 but that this Pri-
viledge is perfonal, and iffo, then it is determined by dilfolution
of the other, and a perfonal Priviledge in cafe of Tithe is not tranl^
ferred to the King. Barker Serjeant for the Plaintiff in this cafe
faid, That it was Ordained by Edgar, King of this Realm, that
Tithes fhall be given to the Mother-Church : Alfo Edmund, £-
ihelfione, JfVltamthe Conqueror, and the Council of M.gans, fpe-
cially provided that Tithes fhould be paid, but did not appoint
when they fhould be paid. But the firlt Law which appointed the
quantity was made in the time of Ed. 1. and this Ordained when
they ought to pay the Tenth with ifcefear of God. And before
the Council of Lateran every one might pay his Tithes to what:
Parfbn he would, and then were paid to Monafferies as Oblations
if a Parfbn in one Parifli claim Tithes in another,as portion of Tithes
due by Prefcription to his Redory, he ough to fhew the place cfpe-
cially, VIZ,, the place where the Tithes lie. In the Seventeenth year
ofEd.i, the Order of the Templers was diffolved, and their Poffef-
fions annexed to St. John ofjerufalem : and they did not claim by
any Bull of the Pope, nor other Spiritual Canon, but by Prefcription,
which is Priviledge and private Common Law, as appears by the
Stat, of Wefim. 1. cap. 74. And MephamVC^non in the time of
Ed.i. faith, Let the CuHom heohfer'ved. 'And another Canon, That
Cuflom of not Tithing, or of the manner of Tithing, if they paid
lefs than the Tenth part, fhall be obferved. Vtd. Panormitan. ^
Caf.Hurxej'ver/. Boyer, Brov/nl. Rep.&^di^. Caf, Pafch. 9 Jac.
Rot. 1 5" 11 . C- fi. BrownL Rep, par- z.
R r r fn
404 Of Tithes.
In the Blfliop of Winchefiers Cafe, 3 8 Eltz. it was Refolved,
That at the Common Law none had capacity to take Tithes but
Spiritual perfon?, or Perfona mixta, as the King, and regularly no
Ernhyofr/Lniecr Lay-man was capable of them (except in fpecial Cafesi) for
chefurS Cafe, he could not Sue for them in the Court Chriftlan ; and regularly a
38 Eli2,.fo.4?. Lay- man had no remedy for them until the 52 H. S. A Lay-man
may be Difchargcd o{ Tithes ^i the Commom Law by Grant, or
by Compofitioni but not by Prefcription ; for in the Books of the
Common Law it is commonly faid, That a Lay-man may Pre-
(cribe In modo Vecmamli, but not In mn Decimando : And the
reafon, is, becauie he is not (except in Special Cafes) cspabie of
Tithes at the Common Lav/, before the Statute of ;x H. 8. cap.j.
And therefore without Special matter (hewed, it fliall not be in-
tended that he hath any lawful Difcharge, and in favour of the
Holy Church ^although it may have a lawful Commencement )
the Law will not fuffer thisPrcfcription,7«»o» Decimando, to put
it to the Trial of Lay-men. A Spiritual perfon that was capable of
Tithes zi the Conmon Law in Pernancy, may Prefcribe to be Dif-
char^ed o^ Tithes generally, or to have a portion of Tithes in the
Land of another. Before the Council o^ Later ^?i, every man might
give his Tubes to any Spiritual perfon that lie would ; and if the
Lands of the Bifhop were Difcharged in his hands abfolutely by
Prefcription, the Demlfmg it to a Lay-man cannot make it charge-
able, and the B-fhop might referve the greater Rent.
A Parfon by Deed Indented leafcthhis Glebe, cum omrtihs pro-
pMis^ni r^^^^ ^ commoditatibus : It was noiwithftanding Adjudged, that
Cro pan k" the Lelfte fhall be charged with the payment o( Tithes. And in
an A61:ion of Debt upon the ^tute of 1 Ed.6. for not fettingforth
oi Tithes ; the Cafe was. The Lands were a parcel of the pofle/Ii-
on of theTcmplers, whofe Lands were annexed to the Priory of
Sr. Johns. The Templeis had a Special Priviledgc to be Difcharged
CornwMs & of Tithes of thofe Lands, which fro^riis mantbus excohm. By a
Spurllwgi C. Special Aaof 31 H.%. the Poffeirions of the Priory of St. Johns,
Qo. par. 2. Yi'ere given to the King by general words of all Lan/s in tarn awplis
modo, &c. as the Abbots held them. Refolved, That the Defendant
fhould not be Difcharged, nor have the Priviltdge; for by the Com-
mon Law a Lay-perlon was not capable of fuch a Priviledge, and
theKing Hiould nor have theBenefit of the Priviledge,until the Stat,
of 3 I /?.8. But the Statute extends only to fuch Poffeflions as came
to the King by Surrender, and Ihould be veiled in him by that A61,
and dolh not extend to Poffeflions which are veiled in him by an-
other Aa, and thefe Lands were given to the King by a Special
AQi of Parliament, and iliefore not Difcharged of Tithes.
Dotardx
Of Tithes, 40 5
Dotards, or the Branches of Trees of twenty years growth or
upward I are not Tithable (n). («) More.
Doves in a Dove-houfe do pay Perfbna!, not Predial Tithes, (0) ^^^^ '^7o.
butifftoln out of a Dove-houle,no Tithe is to be paid of fuch. (/>) i"l J/' ^^^'
Tithes (hall be paid de jure of young Pigeon?. Mich. 14-?^^. ^^^ PJ^^'^,, i^,
B. between Whatley and Hamhmy Refolved. Hdl. 1 f Jac. B. R. Car. Acl|udg.
Refblved, and a Prohibition denied in Gajirell's CalV. By Culloni ace.
Tithes may be paid of Pigeons fpcnt in a mans own houfc, but not
io of Common right. Caje. tl^id. But if fold, they fhall pay Tithe.
di^. Caf. Whdtlj.
E.
EGgs are Tithed in kind, or according to the Cuftom of the
place, which ferves for the Tithes of the Tame and Domef-
tick Fowl, where their young are not paid in kindjand where Tithe
oi Eggs is paid, there is no Tithe of the yourg : And ib 'vice ver-
fat where the Tithe of the young is paid, there no Tithes of Eggs
may be demanded.
R
FJlloiP-Grounds pay no Tithe for thofe years wherein they lie
Fallow, nor is the Paflrure thereof Tithable, unlefsit be kept
Lay beyond the courfc of Husbandry ; for if Land lie Fallow e-
very two or three years, the fame is a charge unto the Owner and
Tenant for that time, and an advantage to the Parlbn in the bet-
tering of his Crop the year following, when the ^me isfowed with
Corn or Grain ; and therefore, although the Grafs and feeding of
the Fallow-ground for that year be fbme finall profit to the Owner
of the Soil, yet he (hall not pay Tithe for the fame, as hath been
Adjudged, (a) Yet it was afterward Adjudged, (^) That if Lands
be Tithable, and the Tenant or Occupier of the Land will not ^'^}/'^?^*o
Plough it, or Manure it, efpecially thereby to prejudice theParforfj /^^ 15 car. by
that in fuch cafe the Parfbn may Sue the Tenant in the Ecclcflafti- sarkley Juftice
cal Court to have Tithes of that Land. in C. B.
Fera w^/«rif ,Beafls and Birds that are fuch,arenot Tithable, (c) W '^ H. 8. 4.
till they become tame and profitable to the Owner,that is,till they
are reduced to a Tamenefs and Property^ yet it hath been held,
that Tithes are not payable for tame Purkies, Pheafints, or Par-
R r r a tridires.
Ao6 Of Tithes.
U) Mocc. tridges, not for their Eggs, (d) Although Bcafts Fera natura, as
Cafesii. Bucks, Docs, Pheafants, &c. are not Tithable of themfelves ; yet
they may be given for Tithes,or for a Modus Decimandi,2.s a great
(e) Cafe Sharp jy-^g j^^y be given for 7ithe of Trees Tithable. (e) And as things
verius ?iirp. ^j^j^j^ ^j.^ f^y^ natura.> whereof a man hath not an abfblute pro-
(/ / 1 2 H.' 8 .4. P^'"fy> ^'■^ "°^ Tithable ." io likewifc of things which are meerly for
by all the Ju- Pieafure Tithes fliall not be paid (/).
fiices. Fenny-Lands drained and made Arable do pay Tithes, {g) not-
ig) Bulftr. 8. withftanding the Statute of Barren LaPxd {b).
(h')M ^^^ taken in the Sea, are by Cuftom of the Realm Tithable,
CaTc 605. "°f ^y f^^^ Tenth Fifh, but Ibme fmall Sum of Mony in confide-
0) Tr. 8 Car. ration of a Tithe. (/) But if taken in a Pond, or in a leveral
B. R. Earl of Pifcary, then they are Tithable by the Owner thereof as a Predial
Defwoitd's Tithe, and as fuch ought to be let forth according to the Statute
CroVt^^'z. °^ ^ ^'^■^' ^^^^- '^ y^"'' ^•^- ^^^ ^'^^^ '^^ Defmond's Cafe, Mick
& ly Car.B.R. ^ 5 Car.B. R. Adjudg. acc-.vid. Trin.^ Car.B.R. Yet it is (aid, that
Adjiidg. FijlierSf Fowlers, and Hunters, not for pleafiire, but by way of
Hugh. Abr. Trade for profit," pay fbnie Tithe by ufage in nature of a perfbnal
verb. Difmes. Xithe to the Pafbn or Vicar where they inhabit, though they take
their Fifh, Fowl, &c. in another Parift; but if they paid Mony to
another in that other Parifh for this liberty of Fiiliing,&c. then he
that takes that Mony, mull: pay as a Predial Itthe to the Parfbn of
that other Parifh where he inhabits. Fiji) taken in the Sea, beinc?
Fera nature, are not underftood to be Regularly, but Cuilomarily
(h) Cro, Car. only, Tithable, as in Cornwall, Wales, 2 ar mouth, &c. (^k). And
264. 1. 335, f^ it hath been Refolved; (/) albeit in the faid Cale oF the E. of
Roll. I.635'. Defmond'M washeld, thatthey were Tithable by the Cuftom of
{l)Law 'f '^^ Realm : In which cafe it is more probable, that the Fifhers pay
Tiihes, cap. 8. ^ Perfonal, than the Fifh a Predial 7'ithe, to the Parfbn or Vicar of
that P.n-ifh where they inhabit. To this piirpofe there is a Cafe ex-
tant, wherein a Prohibition was grahted againft the fame Parfbn of
W. in the County of L. for fuing in the Ecclefiaffical Court for the
Tithes of Trouts taken in a River, becaufe being Fera natura they
are not Tithable j and a Prefident was fhewed 5- Car. where a
Prohibition was granted againft the fame Parfon for filing for
Tithe-Eels taken in the River, becaufe they v/ere Fera natura.And
k was faid, that in Yarmouth was a Suit for Tithe-Herrings taken in
tlie Sea ; but they could not prevail in it. Jones Juftice faid. That
in Wales they ufed to pay Tithes for Herring ; and in Ireland it is
a common courfe to pay Tithe for Salmons taken in Rivers; where-
unto it was rcplyed, That that might perad venture be by Cuftom,
(■m)U\\\.c, Car. ^^"^ otherwife Tithes are not due for Fifh taken in Rivers, (m) For
B. R. Cro. par, no Ttthes'de jure are to be paid for Fifh taken in a Common Riven
, J. 2.47. Pafch,^ Car.B, R, a Prohibition granted toftay a Suit for Tithes
of
Of Tithes. 40 7
of Eels taken in aCommon River in the Parifh of Barton in Wefi-
merlancl:, and Hill. i^. Car. Prohibition granted to flay a Suit for
Tithes of Trouts in the fame River. But the Court feemed to be
divided , whether Tithes of them were due or not : But they
granted a Prohibition, for that the Law fhall decide thereupon; it
was between Dawes and Huddleflone. No Tithes fhall be paid in
kind without a Cuflom for Fifh taken in the high Sea out of any
PariOi. Htll. i^Car. B. R. between Long and Dircell per Curiam,
and Prohibition granted accordingly. And Juftice j^owf / faid, that^. ^^^^ ^ ^
on an Appeal to the Delegates out o^ Ireland in the Lord Defmondh Ireland to tie ■
Cafe it was Agreed ,' That for flich Fifh fo taken, only Vtr{or\'s\ Delegates in.
Tithes are due deduclis expenfis, Likewife, no Tithes in kind fhall England.
be paid de jure for Fifh taken in a Common River, which is noten-
clofed, as in a Pond enclofed ; for that they are F^a naturae al-
though they are taken by one who hath a feveral Pifcary there, and
although the place where they are taken be within the Parifh of that
Parfbn who claims them, for it is a Perfbnal 71;;^?, in which Tithes
ought to be paid deduBis Expenjts. Pafcb. i 5 Car. B. K. between
Geld & Arthur^ & others, Prohibition was granted where the Suit
was hvTtthesoi Salmon in theRivgrof £x«.ii//c;&. i 5 Car. between
Whijlak & the faid Arthur ^ and others: the like Prohibition granted Trin. t ear.
on the fame matter between other parties. And in the Cafe of a B. R, Cro. p. i.
Prohibition is was Refolved, That7V?/6e fhall bepaidfor Fifh taken
in the Sea, which is not within any Parifh; and they fhall be paid
to the Parlbn of the Parifh where the Fifh is landed. i^- lo-.-y.
Flax pays a Predial Tithe, payable when drefTed up,€c/^e Mag,
Char. 649. The Tithes of Flax are Asmuta Decima. Mich. 1 4. Car.
B.R. in Noah Webb\ Cafe.
Forf //-Lands, that lie in no Parifh^ or between two Parifhes,and
anciently fuch, are not Tithablc by the King or his Patentees; but
if the Forefl be in a Parifh, and Land therein which is Tithe-Free,
if the Foreft happen to be disforefled, it fhall pay Tithes in kind.
Crompt. Jurifd, ^x. Bacon Chief Juftice, at Sarum-h^\ze. ; the
Cafe was, A. LefTce for years of the Earl of H. prayed a Prohibi-
tion aeamfl the Vicar of Z,. to ftaya Suit in the Ecclefiaftical Court
for Ttthes, becaufc the Lands out of which the Tithes were de-
manded, were parcel of the Forefl oi B. whereof the King was
feifed in right of his Crown, and he and all his Predeceilors held
the faid Lands difcharged of Tithes, and fhewed that the King
had granted the faid Foreft to the Earl of Hertford in Fee, and fo he
ought to have them difcharged of Ttthes : In that Cafe it was
held by the Court, That it was only a Priviledgc annexed to the
Crown, during the time that the Land was in the Crown; but
the Court doubted, whether the Patentee might have fuch Privl-
ledge ;
4o8 Of Tithes
(w) Mich. 3. ledge: But yet de bene eJTe the Prohibition was granted. (»} If
Car. C. B. Mo- 'fithes do lie in any Foreft, as in rhe Foreft of Windfor^ Rocktng-
rant and ^^w^-^^^^ 5/,er3/;oo^,or Other Foreft which is not in any Parirti, the King
Zfo.^^u67.'^ ^^li have them by his Prerogative, and not the Bifhop of theDio-
(o) 14 H.4. ij.cefs, or Metropolitan of the Province, as fomc have thought, {p)
But yet it feems by i-lAI]. 25". if there becaufe of Suit for fuch
Tithcsagainft the parties who ought to pay the fame/uch Suit might
be brought in the Ecclefiaftical Court: But if a Stranger take away
fuch Tithes from the Parfon or Vicar, there for fiich Trefpafs the
Suit may be in the Temporal Court, as the fame may be for taking
away other goods in the like cafe. Adjudg. 1 5- Car.B. R.
Fowl taken by a Faulkner, who hawks for his plealure, (hall not
pay Tithe ; but if a Fowler kill fn-ij^lj and make a profit of them, it
hath been held, that he (hall pay a perfonal Tithe for them. Pafch.
1 5: Car. Adjudg. ace.
Fruits oi Trees,as Apples, Pears, &c. are Tithable prefently up-
on their gathering , and are Predial Tithes ; for the fubtra6i:ion
whereof the Pariftiioner is impleadable. Stat. 1 Ed. 6. c. I 3. Frutts
of Trees, Apples, Pears, &c. Maft of Oak, Beech, &c. are Predial
Tithes. Coke Magn. Chart. 649. The Fruit i of Orchards and Gar-
dens are Tithable in their proper kinds, and to be paid when they
are gathercd,unleis there is fome Modus or Rate-Tithe paid in lieu
thereof.
Furfe is Tithable, and pays a Predial Tithe, unlefs the Owner
thereof can prelcribeor prove a Cuftom of Tithing Milk or Calves
of the Cattel on the ground where the Furfe gro'wsyMich.ii),Eliz,
B. R. vid. He^h.
a
Of Tithes. z|.op
G.
GArdens are Tithable as other Lands, and therefore the Herbs
which grow therein pay Tithes in kind. Alfb Plants, Seed,
Woad, Saffron, Hemp, Rape, &c. pay Tithes In kind, unlefs the
Parfbn make an Agreement for the fame; otherwife the tenth part
muft be (et forth for theParfon, when the Owner receives his nine
parts. Mich. 8 Jac. C. B. in Baxter^ Cafe, d^ Trin. 9 Jac. B. R» . ;
The whole Court.
Glehe is a portion of Land, Meadow, or Pafture, belonging to
or parcel of the Parfbnage or Vicarage, over and above the Tithes.
If it be Deralfed by the Parfbn to a Lay-man, it pays Tithe; other-v
wife, if he keep it in his own hands, (p) For Glehe kept in the (p) Owen fs.
Vicars own hands pays no Tithe to the Parfbn Impropriate; it is
otherwife if it be in the hands of the Lcflee, [ij) by whom it is (f) Brownl. 6$.
Tithable, if let by a parfbn Impropriate. And although G!el;e
Lands are not properly Tithable, bccaufe Ecclejia Ecclejia Deci-
mas non debet [olvere', yet if G/e^f- Lands be leafed out by the Par-
fbn, the Leffee fhall pay the fmall Tithes arifing out of fuch Glebe
Lands to the Vicar that hath fmall Tithes upon his endowment, as
in Blinds Cafe, (r) And yet in that cafe the Vicar Libelled in the (') B!i?:co
Ecclefiaflical Court to have Tithes of the Glebe of rWe Parfon, and ^^''^ Marjhn.
a Prohibition was granted, for that the Glebe fhall pay no Tithe. ^'°" P^''* ^*
(i) Notwithftinding which, if a Parfon leife his Glebe Lands, and lsfv>l3 Caf
do not withal Grant the Tithes thereof, the Tenant fhall pay the Bliyica.
Tithes to the Parfon. (r) Likewife, if a Parfon fow lus Glebe Mares Rep.
Land, and then Leafe the fame, the Tenant fhall pay the Tithes of (''^^i®- E^'^:.
this Corn to his Landlord the Parfon. («) Yet if a Parfon fbw ,"^/" ,,
his Glebe^ and die before Severance, fbmehave held, that his Exe- y^^i
cutors fhall not pay Tii;hes of this Corn. And albeit where Glebe
Lands are leafed out by the Parfon, the LefTee fhall as aforefaid,pay
the Small Tithes thereof to the Vicar, that hath the Small Tithes
upon his Endowment ; yet he fhall not have the Small Tithes arif-
ing upon fuch of the Parfons Glebe-'L2x\d% as the Parfon keeps in his (»} Cio. Eliii.
own hands. (3/^) Likewile on the other hand it hath beert held, 578.
That the Vicar upon a general Endowment, fhall not pay Tithes of
his Glebe to the Parfbn, or of the Fruits that arife from the lame,
and that for the fame reafbn aforefaid, Qjna Decimas Ecclcfa Ec-
clejia reddere non debet, (x) But the LtfTee of the PaiTons Glebe {k) exempt.
fhall pay him in the Tithes thereof; to this purpofe the Cafe was, Caf. P^ifdu
A P.irfon leafed all his Gkbi Lands^ with all profi:s and Commo- ? Ca- i B, R.
ditics
A I o Of Tithes*
dities, rendrlng i 5 j. 4^. pro ommhus exaciiombus d^ demandii, 6c
afterwards Libelled in the Ecclefiafticai Court againft his Leflee for
the Tithes thereof: It was the Opinion of the Court, That Tithes
are not things iffuing out of Lands, nor any Rent or duty, but Spi-
ritual ; and if the Parfon doth Releafe to his Parifhioner all de-
mands in his Lands, his Tithes are not thereby extinft, and there-
(>) Tnn. 3 1 fore a Confultation was granted, (j) And fo it was Adjudged ^^ EL
El. B. R. Ssyle -^^ Babington'*sCz{h,Th^t fuch LelTee (hould pay Tithes to the Par-
& Mt/ler. ^^^ £^^ ^^^^ ^^^y, ^^g ^^jg y^j,.^ di'vino, and cannot be included in
(^°\{alh°' Rent, (jl) As long as the Vicar occupies his G/e^^-Lands in his own
Abr. verb, hand, he fhall pay no Tithes, but if he Demife it unto another, the
Difmes. LtjGTee fliall pay Tithes to the Parlbn that is Impropriate. If the
Vicar fow the Land, and die, and his Executors take away the Cofn,
and doth not fet forth his Tithe,and the Parfon bring his Action of
1. pa. I . Debt upon the Statute of x Ed. 6. In this ca(e the Court feemed to
sof Dslt. incline, that it would lie. The Glebe I^ands and Spiritual Revenues
Stc. 1. 8c s-
Harris verf.
Cotton.
Brownl.
of Clergy-men, being held m pur a &perpetua Eleemefyna, h.e. in
Vid. The Pre. Frankalmoign, are excepted from Arraying and Muttering of Men
E^fand pag. °^ Horfes for the War, as appears in a Star, of 8 H. 4. vu. 1 1 in the
£28. unprinted Rolls of that Parliament. An Abbot was Parfon Impar-
fonee of the Church where the Abbey and Tithes were, the Abbey
was DifTolved ; the King granted the Monaftery to one, and the
Parfbnage and Re<Slory to another: It was the opinion of thejufti-
ces, That if the Land of the Abbey was the Glebe of the Parfbnage
before the Impropriation, that then the Land was difcharged of
* Tithes, for it remains Glebe notwithftanding the Appropriation,
and the G/^^^ cannot be gained by Prefcription,nor was ever charge-
able to pay Tithes; And if the Parfon doth make a Leafe of his
Mores Rep ^' ^/e^^, the Leflee (as was there faid, contrary to what was before
^id) fhall not pay Tithes; but the Demefns of the Abbey, not par-
cel of the Glebe^ fhould be chargeable to pay Tithes, if they were
not difcharged in right of a Compofition or perpetual Unity.
Grafs pays a Predial Tithe; but if a man cut Grafs, and before it
be made into Hay, being only put into Swathe?, he carry it thence
and give it to his plowing Cattel for their necefTary fuflenance, not
having otherwife Food fufficient for them ; in this cafe no Tithe
fhalJ be paid for the fame, and a Prohibition was granted. Adicb. 9
Car. B. R. Crawley & Wells per Curiam. The Cafe was, where y.
Libelled in the Ecclellallical Court for the Tithes of the Profits
which came of the Grafs and herbage oF Pafture-Land, and upon a
Prohibition granted , P. fuggefts,That he did feed on that Grafs &•
Pafture with his own Plough-Cattel, and with the Plough-Cattel of
other men in the fame Village. Noy, Confultation fliall begranted;
for though a man fhall not pay Tithes for the Cattel of his Cart, yet
he
Of Tithes, Ai*
\ he fhall pay Tithes for the Land whereon they do (etd. DederU^e
Juftice, Where I do aglft Cattel, and take theCattel of other men
to eat up my Grafs and Failure, there I fhall pay Tithes for the
Grafs; otherwife k is, where the Graf is only fuch as I do departure t • or
with my own working Cattel Cr..^ cited Sher.ngton ^J Fleet- tlZitn
Ws Cafe, where a man agills otiicr mens Cattel on his Mea- & ^iv
dow-ground, whereof he paid Tithe-Hay afore-time; and it was ^^^^•
Rcfolved in this Cafe, That he (hall not pay Tithes for that Mea ^°"" ^'P*
dow-ground now fed with other mens Cattel after Harvefl: no
more than if he had depaftured the Land with his own Cattel
Gra'velb not Tithabie. Muh. 19 EUz,.B.R& Pafck ^^kliz..
L. B. Lijf and JVatt s Cafe.
Gram is computed among the Predial Tithes, which is to be let
out accordmg to the Statutes and the ufage of the place, Brownl i
i.t;r^'l^ ^T^"^' true of all forts of Grain m all grounds within the
Fanlh; 1 he Law is the fame touching Hay in Meadows
Grounds let to Strangers out of the Parifh, the Tenth-peny of
the Rent IS commonly Payable to the Parfon, if no Cuftom againft Mich. 8 Tac
'\'J^' 2!.T.iV'^V^^ ^^"^^^'^fo a Stranger without the Pa- C.B.B.i.r's
rilh,is Tithable by the Owner of the Cattel,unlefs the Cuftom there Cafe.& Trin.
be otherwife. Or if the Ground be fed with Cattel that brine no ^ J^^' ^' ^
profit to the Parfon, the Owner thereof muft pay Tithes for them.
Or Gro^W fed with the Cattel of a Stranger within the Parifh
which brings profit to the Parfon or Vicar, he is to pay Tithes for
It; the Cafe therefore feems th© fame, if both the Ground and
the Cattel be his own that is the Stranger, in cafe he work them in
another Parifh. But the Studs o( Ground or the Meers thereof at
the Ends of Land, and adjoyning to the Arableground, are not
TuheaWe where the Land it felf pays Tithe, unkfs where being
mowed Tor Hay, it hath ufed to pay Tithes.
S f f H.
A. 1 2 Of Tithes*
H
r-
H.
'A T pays a Predial Tithe, and is to be Tithed in Swathes,
Windrows, or Cocks, as the Cuftomof the place is. Or if
the Cuftom be to meaflire out the Tenth part, as the Grafs grows
on the Land for Haj, the Cullom is good; and the Tithe of Ha/,
may be ftt forth in Grafs-Cocks, where the Cuftom doth not ob-
(a) Roll. 1. lige to make- it into Hay -Cocks, (a) And if Hay be put into Ricks-
644.7.1355. on the ground, and after fold, the Buyer cannot be fued for the
Tithe; the Seller may, in cafe the Tithe thereof were not paid be-
fore, Hill. 1 6 Jac. by three Juftices in AjijfieWs Cafe. And where
two Crops of liay are had from the fame ground in the fame yeir, .
{h) Roll. I. Tithe fliall be paid as well of the latter as of the former, (b)
645. z. 1 1, 1 2, ^1^ Tithe fhall be paid of the Hay made of Grafs growing in Or-
^' chards. Co. 2. Infiit. 6$%. But no Tithe Hay fhall be paid for the
Grafs growing upon Headlands, which are only large enough for
(c) Roll. I . the turning of the Plough ; (c); but not for Grafs cut in Meadows
64.-5 2. 19. to feed the Beafts of the Plough, and not made into Hay, Trin. i
Car. B.R. IVelIs\er(. Cravjly. Yet onfbme Headlands Tithe may be
payable of H^y; for fuppofe that in an Arable Field there be mucb
Grafs on the Headlands thereof, ^id there be a Prefcription to pay
the Tenth Shock of Corn there for all the Hay on the Headlands
and Rakings of the Corn, and for Tying of Horfes on the Head-
lands, fuch Prefcription was held good to difcharge the Tiche of the
Cd) Leon. 2. -^^7 upon fuch Headlands. (J; And although a Second Crop o^Hay
53. from the fame ground the fame year is Tichable, as aforefald, yet
regularly the Hay for the Aftermath pays no Tithe, except there be
a Special Cuftom for it ; the Rule being, That Tirhes fliall be paid
Ce) Hob. 2yo. E.X annuatis reno'vantihisjimuld^ femei.(e) And where the CuliO.ii
is not otherwife, the Parifhioner ought to make the Grafs into
if) Pafch. 1 3, ^^y for the Parfcns Tithe, (f) Yet when the Tithes of Grafs are
Jac. B. R. fevered from the Nine parts, the Parfon^ejure may make it into
Roll. Rep. Jfajf upon the Land where it grew, and that de jure, as well as the-
Parifhioner himfeif; and {6 Adjudged in the Parfon of Columbtoni
Cafe in Devon, and the Prohibition denied accordingly; where the
Parfon had alledged'a Cuftom of doing fo, but the Court held that
to be needlefs. Hi//. 1 4 Jac. B. R. Newbery and Reynold^ C^iie per
Curiam. And in thiscafeit was held, That the Parfon may go over
the Parifhioners ground in the Path-way to make thefaid Grafs in-
to Hay, for that is incident to the Tithes. A man is not bound to
make into Hay the Tithes of the Grafs which he curs; but he may
fee
Of Tithes. ^1 5
Jet forth the Tithes thereof when it is in Grais-Cocksj for he may
then fever the Tithes of Grafs from the Nine parts, Fafcb. 1 7 Jac.
B. Bidi & Ellis, Hob. Cafe 3 28. Contr. Hill. 14 Jac. B. R. Bar-
ham d^ Goofe. P. 15 Jac.B. R. per Cur. and Prohibition denied ;
Tr. 1 5" yac. B. R. Poppinger (jr johnjon per Cur. and Prohibition
denied Pafch. i 5 Jac. B. K. per Cur^ and Prohibition denied. P.
'L Jac.B. R. Hob. ^zS. Hall d^ Simcnds, Adjudged. Likewife, a
man is not bound to fever the Tithe of Grafs before it be put into
Grafs-Cocks and hathfet forth theTenthpart; for he may put it in-
to Grafs-Cocks out of the Swath, and then fet forth the Tenth part.
Ibid. Suit was for Tithe-Hay in the Ecclefiaftical Court by the
Parfon;itwas Surmized, That they had time out of mind paid to the
Vicar 4 d. for the Tithe- Hay. The Court awarded a Confiiltation,
for that the Modus Decimandi doth not come in queflion ; but this
he may plead in the Ecclefiaftical Court, (g) And in Gomerfal and (g) Betham &
BiJhofsC^Ce for Tithe-Hay, the Court held, That if there be vari- Lady Grejham's
ance between the Surmize and the Declaration, all Is ill. In another ^^^^•
Cafe in a Prohibition, it was Surmized, That time out of mind the ' P^^* ^*
Owners of the Land had found Straw for the Body of the Church in
difcharge of all Tithes of Hay. It was the Opinion of the Court,
That it was no good Surmize, for that the Parfbn had no benefit of
it; and a Confultation was awarded {b). (h) Story ^nA
Heathy Furz, and Broom, Tithe fhall be paid thereof, unlefi the B^^^>-'s Cafe,
party fet forth a Prefcription or Special Cuflom, That timeout of ?^'^*
mind there hath been paid Milk, Calves, &c. for the Cattel that
have been kept upon the fame Landsjin which Cafe they fhall not
pay Tithes (;)•
Hemp pays a Predial Tithe. Co. Magn. Char. ^49. (0 Mich. 19.
Herbage of ground, whereon Corn was fbwed the fame year, ^'j^^- '^•
and whereof Tithe hath been paid the fame year, is not Tithable Hugh Aljr.
[k). if Herbage be fold, is at the Parfbns Ele61:ion, whether he {k) More,
will Sue the Owner of the Cattel that feed thereon, or of the Cafe 433.552.
Ground, for the Tithe thereof, if Cuftombe not againflir. And ^^.oo.
as for Herbage growing at Lands-ends, adjoyning to the Arable, it " ^' * ^
pays no Tithes, where Tithe was paid for Arable. Where an (n'Lane 16.
Inn-keeper hath paid Tithe-Hay of certain Lands, and the reft of
the year after puts into the fame theHorfes of his Guefts, no Tithes
fhall be paid for the Herbage of fuch Horfes; for it is but the After-
paflure of the fame Land, whereof he had paid Tithes before.
Trin. 16 Jac. B. R. Kichardfon & Cable, per Curium, Prohibition
granted.
Honey is Tithed by the Tenth meafure thereof. A Prohibition
was prayed for Suing for divers kinds of Tithes, d^ inter alia for
Honj, upon a Surmize that it was not payable, that Bees are Fola-
S C iz tiUa
414 ^f ^^^'^^^-
#i/i^: It was thereupon demurred; but the opinion of the.Court
was, That Tithes are to be paid for Honey, for fo is the Book Fitz.,
N. B. and therewith agreeth Lindwood) wherefore the Couit a-
f/)M ly Car warded that there Ihould be a Confultation (/).
B. R.' rot 1 2 2*7. Hop pay a Predial Tithe, and regularly are accounted tnter nti^
Barfcot and „^fas Deciwas; yet in fbme Cafes they may be great Tithes,inpla-
Nortons Cafe. ^^^ where they are much fet or planted. {m')MichXjac.B. Amm
f'^uTll'^ may fet forth the Tenth-part of his Hops for Tithes before they be
rlndafsQzk. dried. Hill. l^Jac. B. RAn Barham^ndGooJes Cafe, put by Ser-
Hutton. 77. jeant Hicham, and agreed by A/o«f^c»^f. r^. , , ,
Hop-poles -or Wood cut and employed for them^are notTithable
where Tithe-Ho;j are paid. And fo it hath been Rcfoived, That
if Wood be cut and employed for Hop-poles, where the Parfon or
Vicar hath Tithe-Hops, they (hall not have Tithes of the Hop-
poles. So if a man hath a great Family, and much Wood be felled
and fpent in Houfe-keeplng, Tithes (hall not be paid of fuch.
Wood's Micb. 1 5 Jac. C. B. by Hohart Chief Jgftlce, White and.
Bickerfiajf's Cafe.
Houfeso^ habitation, or D'welling-houfes are not properly Tith-
able, nor Tithe payable for the fame, nor out of the Rent referved
for them being Lett ; yet by a Cuftom Tithes may be paid for
Rent referved upon Demife of Houfes of habitation, although it^ be
otherwile de jure,ior it might commence on good Confideratlon^
. i Co. I I . Dr. Grant i 6. vid. Mich. I x Jac. B. Hchart 1 6. LeyftW
Cafe. Prohibition granted. Ocherwife of New Ho«/ej,whereof there
can be no Cuftom. Ibid. But regularly Houfes are not at all Titha-
able, nor were Tithes anciently paid for Houfes m Lend, the Pro-
fits of the Churches whereof, confifted only in Oblations, Obventi-
ons, & Offerings. Co. ibid, but by a Decree made An. 1 5 3 5-. & con-
firmed by A6t of Parliament, Srat. 9 7 H.^.cap. 1 1. there is 2 s. 9 d.
made payable to the Parfon for every Pound of Houie-Rent for the
Tithes of the Houfes in Lend. Hob. 1 1. But jf a Modus Decimandi
be alledged to pay ixd.'m every Pound of Rent for every Houfe
in fuch a Parifh in Lend, it is a good Modus Decimandi. The afore-
said 1 J. 9 d. is to be raifed and made up according to the ufage&
Cuftom of the City. Stat. xjH.S-xo.e^ ^iH.S.y.And no Tithes,
are pay able for H(?«/«i in any City fave Lond. where a Prefcription
to bedifchargedof Tithes of a Hcufe, by paying la J. of every
Pound Rent in lieu thereof, is (as aforefaid) a good Prefcription.Cfi.
I M 6. But Tithes regularly are not payable for Houles of habitation,
nor of any Rent refeVved upon any Demife of them ; for Tithes are
to be paid of things which grow & renew every year by the hSto£
God. And for iht Houfes in Lond. Tithes anciently were not paid,
as aforefaid ; yet the Parfon of St. Clements without Temple
Bar
Of Tithes, 415
Bar Libelled againfta Parifliioner for Tithes of certain Stables, &
fet forth in his Libel, That of Comniion right and Prescription time
out of mind, the Paribns there had ufed to have a Modus Deciman-
di, after the rate of the Tenth-part of the yearly Rent or value of
the fame. It was the Opinion of the Court, That in this Cafe a Pro-
hibition (hould be granted^ for de Commttni jure no Tithes are to
be paid of the yearly Rent or value of Houjej; for Tithes are paid
of the revenue and increafe of things; and therefore no Tithes are
paid for Houfes in any Cities or Towns in England, faving in Low
don; and this Parifli is out of London and the Liberties "thereof.*
Now where there is no Til he at all,there can never be a Modus De-
cimandi; and ytt it feems this kind of Payment hath been long ufed
in London^ which certainly was by ufe. But for Houfes, Oblations
were paid in all places; which are now by the Star, brought to a
certainty, 'viz,. 4^. for a Houfe. Trin. 12. Jac.C.B. Dr. Ley field
and Tmdalls Cafe. Hob. I o. 1 1. In Green and Piper s Cafe it was a-
greed by the Juflices, That a Houfe m London, which was pzrcel
of the Pofleffion of a Priory, which was difcharged of the payment
of Tithes^fhould by the Stat, of 5 7 H. 8. be charged with the fame.
One who was a Curate and Sequeftrator only of the Re61:ory of £)„
in London^ the Incumbent being fufpended, Sued Four of the Pari-
fliioners in the Ecclefiaftical Court for Tithes of their Houfes^ and
not before the Mayor of London, according to the Statute of 37 /^.8.
The Court doubted of it, efpecially becaufe the party was neither
Parfbn nor Vicar, and becafe the Statute is a New Law, and ap-
points how the Tithes in London fhall be paid and Ruled, and be-
fore what Judges, and what Remedy (hall be for the party grieved;
and day given to hear Counfel on both fides. («) In the Cafe afore- C«) Mic, ! 6*
laid between Green andPiper, (0) when Suit was in the Ecclefiafli- ^^^' ^' ^•
eal Court for the Tithes of a Houfe in London, a Prohibition was ^]^}j^^^' ^' ,
prayed upon a Surmize, That the Houfe was a Prwr/, which was °^^^^'
difcharged of Tithes by the Popes Bull, and the Stat, of 3 1 H. 8.
which gave their PofTeflions 10 the Crown, did Ordain, That the
King and his Patentee of fiich Lands fhould be difcharged of
Tithes; yet a Confultation was awarded, becaufe by a latter Star.
"viz,. Tf-J H. 8. cap, I , all Houfes in London fhall pay Tithes accord-
ing to their Ordinances, and the Statute extends to all H(3»j^/, and
none excepted but the //£>«/«'; of Noblemen.
41^
Of Tithes 1
Lj^mhs are computed among the MIxt Tithes. To pay Pence a-
piece for Lambs, when the number is lels than Seven,is a good
Prelcription. Curia 7 Jac. B.R. Vatches Cafe. Or rather thus, viz,
if thePar-ifhioner hath Six Lambs,oT under, he (hall yield for Tithe
a halfpeny for every Lamb: if he hath Seven Lambs, then he (hall
yield a Lamb for his Tithe, and receive three half-pence from the
Parfon : if Eight Lambs, then a peny: if Nine Lambs, than a half-
peny from the Parfon, who may otherwife expe6t the Fall of the
Tenth Lamb the year next following. Lind-w. cap. Quoniam propter.
Alfb the Tithe of Lambs is to be apportioned with refpe(St to the
places where they were engendred, brought forth, and nourilhed.
Lindw. cap. Quoniam audi'vimus. And regularly the time of pay-
ment is, when theyare weaned from the Dam, unlefs the Cuftom of
the place otherwife. To flay a Suit in the Ecclefiaffical Court for
the Tithe of Lambs, a Prohibition was prayed, upon a Surmife the
Cuflora to be, That if one hath Lambs under the number of Se-
ven,he ought to pay a half-peny for every Lamb in lieu of all Tithes
0^ Lambs ; if he hath but Seven, then the Parfon to have the Se-
venth, and he to pay Three-pence; if Eight, then Two-pence ;
and if he had Ten, the Parfon (hall have the Tenth without pay-
ing any thing : Refblved, That this being a Cuftom, which they
refufed to allow in the Ecclefiaftical Court, a Prohibition fhould
^/>)Pafch. 11. be awarded (;>^\
Car. B. R. Lands accruing to the Crown by the Statute of 17 //. 8. touch-
Cro. p. 3; jfjg Dlffolutions are now Tithable, though whilft they were the
Lands of Religious Houfes they were not Tithable; but their Pri-
viledges being Perfbnal, they were extinguifhed by the faid Statute
of Dlffolutions, nor hath the Statute of 3 i //. 8. any retrofpe<5t to
the (aid Priviledges. 1 5- Jac. C. B. Garret & Wright's Cafe. & 7
Car. B. R.Clark and JVard's Cafe. Fid. Sr. Marmad. Strickland's
Ca(e 1639. Adjudged at Tor k Aflize according. Vtd.Clayt en's Rep.
I ly.d^ 12 C^r. Adjudged in another Cafe. Al(o Lands gained from
the Sea, and made Arable, muft pay Tithes. 'Bulfir^ 8. i ^y. So muft
Lands in themfelves Tithable, Ijut not Manured or Ploughed, fpe-
cially if fb in prejudice to the Parfon ; in which cafe he may Sue
the Occupier of fuch Lands in the Ecclefiaftical Court for the
Tithes of that Land. Vid.i$Car,C.B.per Berkley Juftice Adjudged.
Lops
• Of Tithes, 41^
Lops of Trees above twenty years growth fliall pay no Tithes:
(^; For It hath been held, that if a man Lop a Tree under twenty (a) More i . g
years growth, after fuffer the Tree to grow paft twenty years, and
then Lep ,t again, no Tithe fhall be paid for the fecond Loppins:,
although the firft Loppwg were not Tithe-Free, (r) It was Refol- ("•) C B. by th»
ved m Reynold's Cafe, That Tithes Ihall not be paid of the Lop- ''^'^' ^''»^'-
png of Trees above twenty years growth. Mores Rep. ^'°"'"'- ''
Linieh not Tithable ; Adjudg, 1 9 £//z.. JS.ii. c^ Tafch. i± Eliz,. ^*° ^-^'
Cfi. L/fand ;F^j;f s Cafe: Nor Marie, Bricks, Slates, or Tz/fx, un-
Ms the Cuftomof the place make them Tithable; otherwife not,
becaufc they do not annually increafe, and becaufe Lime{% part of
the Freehold. Tkf/f^. 13 Jac, B. Thomas &cFerrje,per Curiam,.
M.
M^fi of Oak or Beech, if fold, the Tenth-peny is payable for
the Tithe thereof; but if eaten by Swine, then the Tenth
ot the value or worth thereof
Meadows by ill husbandry over-run with Thorns, Buboes, &: the
Iilce,are not computed as Barren Lands, but do flill remain' Tithe-
able. ?IilL ^ 8 Eliz>. B. R. Sherington and Fleet-wood^ Cafe. Vid i f
Car. B. R. Sugden and Cottle's Cafe.
Millsy. the Tithe thereof^ as alfo of Parks, Ponds, Warrens,Dove-
coats, and Bees, fe^m primo intuitu, ^s if they v/ere all Predial Tithes,
For the Tithe of A////^, not the Tenth peny-Rent, but the Tenth
Meafiire of Corn grinded at the Mill, is refponfible for the Tithe;
underftand it of Corn-Mills, whether new or old, driven by Wind
or Water, for the Tithe whereof generally the Tenth Toll-difh is
due, if there be not fome other Cuitom in the place. And whereas
by the Law and the ancient Conftitutions cf the Church Tithes
were not paid of Ancient A////j, yethy the Statute o^ArticuUCleri,
cap. 5-. Tithes are to be paid for all Mills newly erected: fo that ds
Mohndmo de no'vo ^r^^ro Tithes fhall be paid.7>/«.i4jF<zc.^.i^.So
that all new Corn- ^^;AV,be they Wind or Water-i^////,alfo Fulling
MiUs, Va^tr-Mills, Voider-Mills, Stim^'m^- Mills, (and proba-
bly for the fame reafon Saw-Mills) Iwn-Mills, and all others that
are of Common and Publick ufe, do pay Tithes; but old Corn-
Mills, for which no Tithe, was ever paid, no Tithe is to be paid,
except a Perfonal Tithe, as is for a Trade of profit : And fuch
Tithe fhall be paid of Fulling-^/iZ/j, Rape-Mills, Paper-A6///,
hon-Mills^ Powder- A/////, Lead-M/7/j, Copper-Mills, and Tin-
Mills; for fuch Mills pay no Titlie as Mills, becaufe they arc bug
A.i8 Of Tithes.
Engines of their occupation, Tafch. 1 7 Jac. Johnjons Cafe, &
Cro. z. '^^z.& BulHr. 3. x 1 2. c^ FitZj. N.B.^i.G. & €0.1.4.4^
only the Millers are to pay a Pcrfonal Tithe, as aforelaid, as fora
Handicraft, or Faculty. Therefore a Fulling-Mill as fuch pays no
Tithe. HilL 16 Jac.B.K. between Dayvbrtdge and Jobnjon, Par-
fon of Buckfield. For there being a Fulling-Mill, which Fulled 40
Cloths a week, and gained two fliillings for every Cloth, It was
held, that there was no Tithe to be paid thereof. Cro. 2. Abridg.
Cafe 265 8. But a Corn- Mill newly ere6led,though upon Land di(-
char^ed of Tithes by the Statute of Monafieries, mull: pay Tithes;
& fo of every new ereded AIill on a man's own ground. Ibid Caf.
1 5-22. Notwithftanding the PremifTes it feems fomwhat queftiona-
ble, whether any Tithes are due for xMills. de jure, or not; for the
lu.Cokeylnfiit.r. par. 6ii. fays It was never Judicially determined
that ever he knew of U Mills do not yield a Predial Tithe, yet
doubtlels the Millers are to yield a Perfbnal Tithe, as well as other
Handicrafts-men; but Cullom in this, as in other cafes, prevails. It
hath been Adjudged. Trin. 18. Jac.B.R. That where a Par/on Li-
belled in the Ecclefiaftical Court for Tithes of a Millj which was
erected upon Lands which were difcharged from payment of
Tithes by reafon of Priviledge within the Statute of 51 //. 8, That
a Prohibition would not lie in that cafe: for that De Molendtno de
no^oereBo Tithes ought to be paid. Alicb. i^ Eliz,. in Hapers Rep.
ace. But in the other Cafe of the Fulling- Mill aforefaid, where the
Parfbn Libelled in the Ecclefiailical Court for the Tithes thereof,
& fuggefting, that the Miller Fulled every week 40 Cloths,as afore-
laid, and gained two fhilllngs of every Cloth, demanded Tithes
for them: A Prohibition was granted in that cafe; for it was faid
by thejuftices, That by the Law of the Land he ought not to pay
Tithes of luch.Af/V/j; for of fuch things as come only by the labour
of men, Tithes are not payable, but of things which are renew-
able every year. diet. Cafe Dawbridge d^ Johnfon. Cro. par. 2.
5" 2 3. And in another Cafe, where a man Libelled to have Tithes
of Mills upon a Suggeflion of a Modus Decimandi for the fame, a
Prohibition was granted : In that Cafe it was faid by Coke Chief
Juflice, That in fbme cafes Tithe is payable for Millsj and in fbme
cafes not. No Perfbnal Tithe by the Statute is to be paid of Mills,
but where by fpecial Ufage the fame hath been paid; and whereas
a Modus Decimandi was alledged to pay Tithes for Mills, it was Re-
Iblved, That the Modus did not extend to Mills newly ere6i:ed, up-
on the Stat.of Articuli Cleri; for De Molendino de no'vo ereBofolvun-
tur Decima. Trin. 1 4 Jac. B. R. Jakes Cafe. Bulftr. fa. 5.212. If
two FuUing-MIUs be under one Roof, and a Rate-Tithe paid for
the Mills, and after you alter thefe Mills, and make one of them a
Corn-
Of Tithes. 41^
Corn-Mill, the Rate-Tithe is gone , and you mull pay Tithes m
kind. Broivnlo-w f.i. Cafes in La-w. If there be two ancient Corn-
Mills time out of mindj&c. for which 6 j.8 ^.have been paid for the
Tithes time out of mind, &c. and after in continuance of time the
Mill-ftream doth change his cour[e,and goes another way at a little-
diftance from the ancient Stream, and thereupon the Owner of the
Mills pulls down one of the ancient Mills, and new builds it in that
other place where the ilream now runs: In this cafe it fhall be
difcharged of any Tithes by the force of ancient Modus^ for that
happened by the acSl of God , and not by the ad of the party ;
and Prohibition was granted accordingly , Mich. 1 1 Car. B. R.
Johnfon and DawhriJge's Cafe, Refblved per Curiam. But withal
the Court held, that It the Stream had been altered by the Owner,
Tithes ou^hc to have been paid as of a new Mill. In another Cafe
it being Libelled in the Ecclefiaillcal Court for Tithes of a Grifl-
Mill,andof a Fulling- Mill, Crook agreed , That for a Grift-Mill
Tithes fhall be paid j but he faid, That the Statute De Articulis
C/er/,which fpeaks de Mviendinis non fiat Frohibitio, ought not to
be meant or intended of a Fulling-Mill, for the profit that accrues
by that, is by the Labour of men, and therefore not intended with-
in the general words of the Statute De Molendinis Jor which realbn
he prayed a Prohibition. Calthrope faid, that it was the opinion
of juftice Warhurton and Ntchols , 1 1 Jac. that Tithes fhall be
paid of Fulling-Mills, -viz.. the Tenth-peny of the gain or profit;
but of Grift-Mills the Tenth-difh or Corn fhall be paid, for that is
in the nature of a predial Tithe: And fo It was held 5: Jac. m the
Cafe between Uhi and Lux, Vid. Lindw. ?rovin. Confiit. But yec
Doderidge held. That if there be not a Special Cuftom alledged
for the payment of Tithes of a Fulling-Mill, Tithes fhall not be
paid thereof; for he had fpoken (as he laid) with the Cm7w«/,who
held that Tithes fhould be paid of fuch a Mill ; but they could not
agree what manner of Tithe it is , for fbme faid It Is a predial
Tithe. Others, that It Is a perfbnal Tithe ; but he faid It could not
be a predial Tithe , for It wholly accrues by the labour of Man ;
and If Co be that he fhould have that Tithe as a predial Tithe,
then another Tithe would be demanded of him who Sheers
the Cloth , and alfb of the Dyer thereof, and fb Tithes fliould
be paid many times for.thefame Cloth: But the UfageorCuftora
of the Country Is to be confidered. And for Tin-Mills, or
Lead-Mills, or Plate-Mills , Ragg-MIlIs , or Edge-Paper-Mills,
no Tithes fhall be paid ; and to this agreed Doderidge, Houghton,
and Croke: And therefore as totheGrlft-MIll, a Confultatlon was
granted, and as to the Fulling-Mill, there was a Prohibition. Tafch.
17 Jac.B.K.Koll.Rep.par.z. AParlon Libelled in the Ecclefiaftlcal
T t t Court
420 Of Tithes.
Court for Tithes of a Mill-f which was ere6led upon Lands diP
charged of Tithes by the Stature of Monafieries,'^ i H.%. A Pro-
hibition was prayedjbut denied by the Court ; for de molendino de
no'vo ereBo non jacet Trohihitio. Trin.i'y Jac. B. R. Cro. par.z,
Alfb in another Cafe where it was moved for a Prohibition, upon a
Suggeftion of a Modus,xo pay fb much by a Cuftom for all Mills
cre<9ted, or to be ere<St'ed,and this appearing to be a New-ere6led
Mill: Whether the Cullom fhall run to this or not upon the Sta-
tute of ArtkuU CleriyC.^. was the Qaeftion. Ceke Chief Juftice,
This Modus cannot go to this new Mill ; for an ancient Mill your
Modus fhail be allowed, but not for the Mill newly erc6led , the
Cuftom will not extend to it ; and therefore by the Rule of the
Court, for this new Mill a Confultation was granted.
-■■' Mil I' fi one Si'i^ one pair thereof be turned into two pair, both of
them fhall pay Tithe, and their Priviledge (if they had anyj will
be loft. Vafch.ij Jac.Johnfons Cafe .,& Fitzh.N.B. I.G. Co.z^^.
Broivnlow I . ^ i . So that if there be but one pair of Mill-fiones in
a Mill, and a Rate-Tithe be pr.id for them, if afterwards there be
another pair o^Mill-fioms put ooynow Tithes muft be paid in kind*
Broivnl.ihid.
Milk- paying Tithe, exempts the payment of Tithe^Cheefe made
of the fame Milk. Et e contra.
Mines or Minerals of Iron, Braf?, Tinn, Lead, Copper, Coles,
and the like, are not Tithable. Regijler ^l.EN.B.^^- 9- ^^^'
Dijmes 1 8.
Mixt Tithes are the profits of fuch' things as arife partly from
the labour and care o[ men,and partly from the Earth whereof the
things are ; and fometimes are called predial Alediats , and come
not immediately of the Ground , but of things maintained out of
the Ground, as Catte!, Calves, Lambs, Kids, Wool.Miikj Cheefe,
Chicken, Geeie, Ducks, Swans, Eggs, &c. Mixt Tithes are pro-
perly fuch as come of M'.lk,Chcefe,6cc. Or ex fcctibus animiiliumf
i^ua funt in pafcitis, d^ gregatim ■pajcuntttr, ut in Jgnis^ Vitulis^
Hxdis.^Ca^reolts^Vullis.^Q'c. Ccke Magn.Chart.6^6.
Mcdits Decimandi is the payment of fomething In lieu of the
juft and full Tithe of a Thing Tithable,legitimated by Compofiti-
on,Cuftom,or Prescription ; It is when Lands, Tenements, or Here-
ditaments have been given to the Paifba and his SuccefTors , or an
Annual certain Sum, or other profit always time out of mind to
the Parfbn and his Succeflors , infuii fatisfatVion of all Tithes in
kind in iuch a place, and all precedents in Prohibitions in difcharge
of Tithes in cafe De mode Decimandi run thuSsf/^L.That fuch a Sum
had been always paid in flenam Content ativnem, Satisfacliontm d^
Exonerationem omnium & Jingularum Decimamm. And although
the
Of Tithes. 421
the Sum be not paid, yet cannot the Parfon fuefor Txihe^ m Icfnd-
not for the Tithes In kind in the Ecclefiaftical Court, but for the
mony m the TemporaLTr/V;.; Jac\^ the Cafe D.mo^o Decimandt
Jr'rohibitions, debated before the K. Coke, SeUB. Ca[. 40, & a 6 In
Biggs CafeitwasRefolved, where a Prohibition is awarded upon a
Suggeliion of a Modus D^cmandi,^ a Confultaticn awarded for not
proving the Suggeliion within Six months, there a new Prohibition
mall not be awarded upon an Appeal in the fame Suit, Mere izia..
Ihis Modus Deamandi refers only to the Realty, 'viz,.x\ic Tithes
& not the Perfonalty, <viz.. the Oiferings. (t>) Nor can it be^in at', s
this day, but is & muft be by Prefcription, and is intended to have a ^^ '''^' ^ ''
lawful commencement upon fome Agreement at firft made for va-
luable Confideration with theParfon or Vicar. (^) And if ihtMo. r,) m- u .
dus Deamandi be to pay a Sum of mony for the Tithe of a piece I^ c b
ot Ground, which is after turned to Houics and Gardens, the A^odus MUdman^nA
continues, (r) Yea, it doth fo aftually difcharge and extinguifh ^"^^"'^^ Cafe.
Tithes, that they are thereby turn'd into a Lay-Fee, as well as the ^''^ ^°' ' '• '^•
Nine parts. 0) Touching this Modus Deamandi there are fome f,>,Hob .. P.
things that feem doubtful and unrefolved in the Law; as if the Mo- LnloesS
dus be o[ Land given to theParfon m /atisfaftion of Tithes,and the
Land after happen to be evia, Q^ if the Tithes in kind do not in
luch cafe revive.^ {t) Or if Lands he once difcharged of Tithes bv ... r r .r
n Modus Deamandi, (^whether the Tithes (hall revise again upon ./ ver? !.f "^'
hulure of xh^ Modus^. k t*) But if Land be granted to the Parfon in drem. '
latisfaaion of Tithes, if the Parfon alien the famewithout the con- ^°^^- ^^^
lent of the Patron and Ordinary, his SuccelTor fliall have Juris U- ^''^ ^''^^ ^°^'
trufn (w) If a man Prefmbe to pay a Modus Deamandi for the /I'dia Cafe
Tithe of certain Lands, if the Land be afterwards let to Farm, and nit rerf
the Farmer pay the Tithe in kind, ytt it fhall not deftroy the Pre- ^r.drews.
fcnption as to the LelTor. (xj If a Leffee pay Tithes in kind, yet (""^ P^^*^^- ' ?
that (hall not deftroy a Modus in the Leffor *. But if the Modus >*^- ^-^-Care
Decimandi beof a thing for which no Tithe is du^deCommumjure, ^pfcf^''^
It is not goodj nor can it ftand to rife and fall according to the Rent Roll.* Red ' '
by Prefcription: as of Houfes in London.(y') That the Trial of Modus * Pafc 1 3 Jac'
Decimandi (as the Common Lawyers affirm} belongs to the Tem- ^^^ ^''^^' '^'^
poral, not the Spiritual Courts, and for the grounds of Prohib:tions ^""^ "*^- ' '*
m fuch cafe t. If the Ecclefiaftical Court allow not of any fuch f vid n,
thing as a Modus Decimandi, k is becaufe the Canonifts do hold grand d^fpute
Tithes to be due Jure Divine, and confcquently not extinguifii- ^'fi''^ ^h K.
able in the whole, nor dimlnifliable in part by any Cuftom or ^'^"'^"' '^'^
Prefcription in oppofition to the Law of God. The Temporal t""^^" '^^'^^
Courts will admit them alfo to be Jure Divmo , but do allow rZ'j ]zc
It fo only Seeundum ^md, viz. ^uoad fufientationem Cleri^ Co. lib. 3.
but not quoad Dccimam aut aliquam aUam certam partem \
T t t 1 ard
422
St. zEd.6.
. 13.
f.,)6]ac.C.B.
tn the Cafe of
Modus Deci.
mandi.
Coke SekB
Cafes 14, 8c
46.
{h) Trin. 10
Jac. C-B.
Brawns Cafe.
Godb. i«)4.
(0 Mich. 14
Jac. C. B.
Winter and
Child s Cafe.
Bul(lr.3 pai-.
{d) Adjudg'd
1 5 Car.in Sir
Arthur Kobin
fens Cafe.
Claytons Rep.
Sec.i Sf-
(f) Jones
373.188.
Of Tithes.
and therefore do admit of a Modus as to the quantum, where there
is a fufficient maintenance for the Clergy befides; which is not only
allowed , but alio confirmed by hSt of Parliament*. So that if
the Lord of a Mannor grants parcel of his Mannor to a Parfon in
Fee to be quit and difcharged of Tithes , and makes an Indenture,
and the Parlbn with the affent of the Ordinary (without the Pa-
tron) grants to him, that he fhall be difcharged of Tithes of his
Mannor for that parcel of Land ^ if afterwards the faid Lord of a
Mannor or his Aifigns befued in the Ecckfiaftical Court for Tithes
of his Mannor , he or his Affigns (hall have a Prohibition upon
that Deed j and therefore, if the Lord of the Mannor hath always
holdcn his Mannor difcharged of Tithes, and the Parfon had time
out of mind Lands in the fame Parilh of the Gift of the Lord, of
which the Parfon is (eifed at this day in Fee,in refpe£l; of which the
Parfon nor any of his Predeceflbrs ever had received any Tithes of
this Mannor : If the Parfon now fueth for Tithes of this Mannor,
the Owner of the Mannor fhall (hew that Special matter, that the
Parfon and his SuccefTors time out of mind have holden thofo
Lands of the Gift of one who was Lord : and the fame is good
Evidence to prove the Surmize in the Prohibition {a). And in a-
nother Ca(e of a Modus Decimandi it was holden by the Court,
That \iiModus Decimandi be for Hay \r\Black-Acr€y^xi^i the party
foweth the fame with Corn (even years together, the fame doth not
deftroy the Modus Decimandi ^butthe fame fhall continue when the
fame is made again into Hay : And when it is fowed with Corn,
the Parfon fhall have Tithe in kind , and when the fame is Hay,,
the Vicar fhall have the Tithe-Hay, if he be endowed of Hay (h).
And where a Suit was in the Spiritual Court by a Defendant Vicar
of A. for Tithes : a Prohibition was prayed upon the Plaintiffs
Plea there of a Modus Decimandi, to pay fo much yearly to the
Parfon of X in difoharge of his Tithes, k was the Opinion of the
CourtjThat this Modus between him and the Parfon will not di(^
charge him from payment of Tithes to the Vicar ,. and therefore
the Court granted a Confultation (c). Alfo if a Prefcription be laid-
to pay a Modus Decimandi to 1 00 Acres, or to foveral things , if
there be a failure of one Acre, or of one thing, it is a failure of the
whole Prcfoription(</j.
MonaHeries under aoo/. fer Ann. commonly called theLefTer
MonafberieSjOr of the Order of Cijiertians and Framonfiratenfes,
that were DifTolved and came to the Crov/n by the Statute of
17 H. 8. were not difcharged of the payment of Tithes by the
Statute of 51 H. 8. c. 8. (e) by which Statute thofe of aoo/. per
Ann. and upward;;, commonly called the Greater Ahhies^ were
Diflblved i and whereby it is Ena6led, That the King and his Pa- -
tenteesj
Of Tithes. ^^22
tenteesjhaving any Monafteries,&c. or any Mannors, Lands,&c. be-
longing to them, fhould enjoy the fame diTcharged of the payment
of Tithes in as ample manner as the faid Abbot s,&c. ( f) who were ^i/)'St. j i H,
diicharged of Tithes either by Bulls, Compofitions, Prelcription, *^^P-^-
Order, or Unity of PolTeflion. And albeit die Lands of the faid
Lefler Monafteries are not within the benefit of the (aid Statute of
3,1 H. 8. to be quit of Tithes ; yet they ought to enjoy all fuch Pri-
viledges as are annexed to the Lands, for which reafbn they fhall Vid.Sir siw.
(in whofe Pofleffion foever they arc ) be exempted from the pay- -^f^^^'^ Law of
mentof Tithes by real Compofitions and Prefcriptlons de Modo'^u^^^'
Decimandi, though not by Prefcription de non Decimando, Unity ^ ^'^^°
of pofleffion,Order,or Popift Bulls, ia all which Cafes the Parfons
and Vicars have the advantage by the Diffolution of all thofe Mo-
nafteries and Abbies, which were DifTolved by the Statute of iy
if. 8. For thefe Lefler Monafteries under aoo/. per Ann. which
were (as aforefaid) Diflblved by the Statute of 27 H. 8. loft their
priviledge of being Difcharged of the payment of Tithes. Nor
did the priviledge extend to any Lands, other than fuch as they had
at the time of the Council ©f Later an, and only for fuch time as
the fame remained in their own pofleffions, and only for fuch Lands
as were in their own Manurancc (g). It is faid in Dickenfons Cafe C S) H Elfe.
againft Greejikwe,Thai Monks are not of Evangelical Piiefthood, ^^r 349.
'viz. capable of T ithes in pernancy,but meer Lay-men, and cannot ^°'^" P^''-4+'
prefcribe /"« non Decimando. And that Bede faith of them. Thai
r hey are meer L/7ic/, and the Monks of the Order of Vramon-
firatenfes were fiigh) and therefore they could not prefcribe to be
Difcharged of Tithes (/6). ^^) Hill.-j Gar.
Mortuartes^'m fbme places called Ce<jr/e-Pr^fei,thou2h they are ^•'^•'"/^^^^«"
Ti 1 • -rw r / *? '' /ow and Green'
Ithes, yet they were given pro Recowpenjatione Jubtracttonis hwe's Cafe.
■Decimarum perfonaliHm,nec non & Oblationum.U\nd^.c.Statutttm Poph-ij;.
& infra j&c. for which reafbn they are nor here omitted out of this
Catalogue of Tithes. Mortuaries (as Sir Edw.Coke conceivesywerc
not anciently due otherwife than by Cuftom only {t)y until they ^^^ Co.2.par«
were fettled by the Statuteof ii H.^.cap.6. whereby it isEnafted, ^"^•'^^'°
That no man dying poffeffed of Goods under the value of 6^/, l 5 s.
4^. fhould pay any Mortuary , nor any to be paid but in fuch places
where they ufed To to be, and that but one Mortuary j nor that,but
in one place, and that where the party deccafed had his moft con-
flant abode, and uflial dwelling and habitation , after the rate fol-
lowing, -VIZ.. 3 J. 4^. where the Deceafed had in Moveables (his
Debts firft paid) to the value of 6 /. I 3 j. 4 ^, and under 30 /. at
his death, Gs. S d. if he died poffeffed of Moveables to the value
of 30/. and under 40 /. I o s. If to the value of 40 /. or upwards^
And none to be paid by any married Woman , Child, Non-
Houfe*
424 Of Tithes,
Houiekeeper, Way fairing- man, or Non-rclident in the place where
he died. Which Statute provides , That accuftomed Mortuaries
„ fhould be paid as formerly, whether more or left than is»43efore
^a). .11 .. ijf^jfej ^^j^ There were alfb it (eems certain il<ftfrf«<i!m/, which
(/) Co.Inft. the Prelates anciently paid to the Kings of this Realm (I).
2. par.4pi. A Mortuary IS not properly and originally (aid to be due to an
Ecclefiaftical Incumbent, Parfon, or Vicar, from any but thole on-
Vid.Spelm. ^7 of" his own Parifh, to whom he miniftreth Spiritual Inftru6Hon,
Judicious Con- and hath right to the Tithes. Lindivood in his Glofs on c. Statu-
jeSureu^on turn, ver. ut infra-, de Confuetud. difcovers the ground or reafbn of
this pint of j.j^^j. paynient to be thAs^viz,. That when through ignorance, and
;» his Treatife ^onictimes through negligence , and unjufl: detention of Tithes
: de Sepultura, and Oblations the Parifliloner was found tardy and faulty, &c.
pag' 3 s • Ideo fiatutt Archiefifcopus , c^uod Compenfatione jic fubtra^orumy fe-
cundum melius Animal defunct Ecclefia; damno debuit ap flic art. -
But all this notwithftanding , we know the prevalency of Cuftom
to be fuch, that In (bme places of this Kingdom they are paid to the
Incumbents of other Parllhes , that perform no Minlllerial
duties at all to the deceased party , nor living nor dying. And
the Statute of xiH. 8. c. 6. doth nothing at all control! the
courfe, but makes the Ufage of payment only to be the Law
. thereof
In the Cafe of a Prohibition, becaufe the Defendant fued in the
, Confiftory Court of CheHer, before the Commlflary, for a Mortu-.
Bifliooof ^^y* ^^'•^'* ^^^ -death of every Priell: within the Archdeaconry of
chejiers Cafe. Chefier^ the beft Horfe or Mare, his Saddle, Bridle, Spurs, his beft
Cro-par.j. Gown, his beft Signet or Ring , his beft Hat, his beft upper Gar-
ments under his Gown , as to the Blfhop, de debita conjuetudine
fore fupponitur, and recites the Statute of al H 8. concerning
Mortuaries. The Plaintiff averred, that there was no fuch Cviftom
there, and that fhe had paid a Mortuary to the Parfbn of jB.and that
after a Prohibition the Defendant had profecuted his Suit in the
Ecclefiaftical Court. The Queftions were, (i) Whether there
was a Cuftom in that place, to give fuch things for Mortuary ? and
this to be a juftcaufe to have Prohibition; Mortuaries being only
Triable in the Ecclefiaftical Court. (^) Whether Confultation
fliall be granted without anfwering the Prohibition. The Court
was divided in Opinions, wherefore ordered the Defendant fhould
Plead or Demur, and then the Court would give Judgment upon
the Return before them.
N.
Of Tith
N.
oi I^JnT^J^ c Y ^t^^^^- '° ''^' °"'"° '^^^^^s fl^^JJ be paid
ot thatiV^^ or Horfe, for that it is a Barren Beaft,notrenewin/hnr
kept only for Labour; and fo AdjWed mt\,tvTll^rru-U
tf ^^^\-here ^he Cafe was^ I hat a man Lef^^^^^ ^^1^
Lands to another referving to hin.felf the running of a ^JXt" '^^^^^^^^^^
Crrtforl: T-i'^' u" ^r^" "" ^"^^ in the EcdellS ^^-^/^^^^^^^
Courttor the Tithes of that Nag, and a Prohibition was granted !,"V'^'^^^'^
^yMountagueCrcoK^n^Dodendge,^or,^^^^^^ is a Barrercfeature "
and ufed only for Ridi^ngCand although it was argued attLBarXt
the Leffee paid him Tithes for all the Herbage ; yet the G,u?t o^^^^^
no advar^age of that.) But //..#..« feemedl lolra 'for it Wd
o Iiim,That no Barren Cattel ihould be difcharged of Tither^^er
-than fuch asareufed for Husband^^. But thaf was no uft^t
' St^ ■^'/.:^7'f % ^"^ '■" ^^^-^^^^^f ^ P-^^bition betwee^
ior Pafturageof a Gelding for his Saddle,or if it be fold : but not
tor Horfes ufed only for Labour. '
In a Prohibirion'the Cafe wa?, Af.the Defendant being Parfon of
J>^M L.bel in the Ecclefiaflical Court for the Tithes of^wtTcI
dua and of the Herbage for depa/luring of his Geldings: The
Plaintift there fliewed,that they wereh^s Hackney Geldings, which
lie kcpr for his pleafure, and for himfelf and his Servants to ride
upon being his Saddle-Horfes; and this Plea being there refufed.
ior ch.s cau/e he prayed a Prohibition : ^he -whole Comt 'w.u char
% 0/,^^.^, That here was good caufe for a Prohibition , for that
the.e Horfes are not TithabIe,nor any Tithe-Herbage Is to be paid
t'tT ' ^'^^1^'^' '^ ^^'"^''^ '""'^y ^^d been Cart-Horfes, which
m nad to 1 li] his Ground,or for Cattel bought, and Fatted to fell
again for gam i for thele he ought to be anfwerable to the Parfon
tor the Herbage of them, but not for the Herbage of his Geldings
by him kept and ufed only for his pleafure; but It was for working
r ? ^°;f,^e Cart or Plough , or for Fat Cattel, bought and
ijatted to fell again ; of (bch Cattel allowance is to be n?ade for r •
their Herbage, becaufc that a Profit doth come in by them; but BR
otherwife It is of Saddle-Horfes : the whole Court agreed in this, verC Mary.
and therefore in this cafe, by the Rule of the Court, a Prohibition Buldr.par.u
"^^as granted.
Ntirferiss
Pot hi /I
42^ Of Tithes,
J>^urferies of young Trees and Plants pay Tithes : If a man be
(eifed of Land within a Parifli , which ufed to pay Tithes ; and a
Nurferjf be made thereof for young Trees and Plants of divers
kinds of Fruit, as Apples, Pears, Plumbs,&c. Alfoof Afh,&c. and
after fell divers of them to Strangers out of theParifh to be tranP
planted, he (hall pay Tithes of that Nurfery to the Parfbn; for
although the young Trees are parcel of the Freehold , (b long as
they continue there, yet when they arc tranfplanted, they are leve-
red and taken from the Freehold ; and if that fliould be permitted
without payment of Tithes,the Parfbn might be defeated of the
Tithes of all the Lands in the Parifh , by converting them into
Nurferies. Hill. 14 Car. B. R. Gibbi & Wibitrne Adjudg. -per Cur.
upon a Demurrer, and a Confultation granted accordingly. Intrat.
Micb.i^ Car. Rot.l^.Cro. par.^.
O.
OAks beyond 20 years growth,that are become dry and rotten,
and thereby not fit for Timber, fhall pay no Tithe, becaufe
they were once priviledged. And if Oaks beyond 20 years growth
have been ufed to be Topt and Lopt within every 2 o years, yet no
Tithes fhall be paid of thefe Tops and Branches within 7. o years
growth, becaufe the flock isdifcharged of Tithes. Trin. 38 Eliz»
B.R. Ram & Vattefon. Mich.-^ Jac. B. Brook & Rogers & Co. 11,
Sampfon & Worthington^ 48. B. Adjudg. It was alfb Refblved in
Wray and Clenches Cafe , That fmall Oaks under twenty years
growth, apt for Timber in time to come , fhall not pay Tithes.
Mores Rep. Likewife Oaks Top'd within the age of 20 years,and
after the Lop left to grow beyond xoyears,no Tithes fhall be paid,
for it is now become Timber. Mich, i o Jac.B. per Coke. And Oaks
decayed that are not Timber , but converted to Fire-wood, fhall
notftithftanding not pay Tithes. More^Cafe 716.
OblationsyObventionsy and Offerings, feem to be but one and the
fame thing, and are in a fenfe Something of the nature of Tithes,
being oflFered to God and his Church of things real or perfbnal."
Offerings are reckoned amongfl perfbnal Tithes, and as fuch come
by labour and induftry, paid by Servants and others once a year to
the Parfbn or Vicar , according to the Cuflom of the place j or
they are to be paid in the place where the party dwells at fuch four
Offering-days , as before the Statute of xc^ 3 Ed. ^.13. within
the fpace of four years then Jaft paft had been ufed for the pay-
ment thereof,and in default th^reotCro.^^./lbridg.Cafe 3 i ^^.InLon-
Joft
Of Tithes. 427
idoH OflFeringsare a Groat a Houfe. They are by the Law now in
force to be paid as formerly they have been. Vid. Stat. 31 H 8.7.
17 H. 8. io. x& -^Ed.S. 11.&C0.11.16. They properly be-
long to the Par(bn or Vicar of that Church, where they are made.
Of thefe (bme were free and voluntary, others by Cuftom certain &
obligatory. They were anciently due to the Parfon of the Parifh
that officiated at the Mother-Church or Chappels that had Paro-
chial Rights; but if they were paid to other Chappels that had not
any Parochial Rights, the Chaplains thereof were accountable for
the fame to the Parfon of the Mother-Church. Lindiv. c. de Obla-
tion. & cap. e^uia quidam. Such Offerings as at this day are due to
the Parlbnor Vicar at Sacraments, Marriages, Burials,or Churching
of Women,are only fuch as were confirmed by the Statute of 1 Ed.
6. 1 3. and payable by the Laws and Culloms of this Realm before
the making of the ^id Statute, and are Recoverable only in the Ec-
cleJiaftical Court.
Orchard^ the foil whereof is fowed with any Grain, the Parfon
may claim the Tithe thereof, as well as of the Fruit of the Trees,
becaufe they are of feveral kinds, and of dlftind natures. Coke
Magn. Chart. 65' 2.
P.
PArk-^ if converted into Tillage, (hall pay Tithe in kind, for a
Tark is but a Liberty ; a difcharge therefore of the Tithes of
a tark is not a difcharge of the Tithes of the very Soil, which may
be converted into Tillage, {a) Or if there be a Modus Decimandi {„) sharp
of the Vark^ and the Vark be difparked, and the Land converted vcrf. sharp.
into Tillage, or Hop-ground, or the like; in this cafe chough Tithes Noy.Rep.
\h kind arc not payable, yet the Modus fhall remain.The Cafe is the
lame, if the Park be difparked by having all the Pales fallen down
which in I.,aw is a difparking of the Fark. Sed ^ (h). For to (^_) Vid. Pafc.
pay a Buck or a Doe, or the fhoulder of a Deer, when one is killed, 29 Jac. C. B.
may be a good Modus Decimandi for the Tithe of a Vark. A Vi- P""^^ ^ ^^-
car having two (hillings yearly, and the Shoulder of every third ""^'^^ ^^^^
Deer killed in a Park, the Park being difparked, the Vicar Jued for
Tithes in kind. The Court was divided in Opinion : Nicholas and
i^f^drf Juftice, that notwithftanding the difparking the Modus did
remain ; Winch and Warhurton Juftices, that by the difparking
the Prefoription as to the Modus Decimandi was determined, and
that the Tithes fiiould be paid in kind. Quare. (c) Where a Park ^'^ ^""^^^ ^"^
is difparked, if tht Park paid ten fhillings,or any other Sum for ail q^£^^^^
U u u Tithes
428 Of Tithes. i
"Jithes, and now difparked and fown with Corn, here only the ten
niillings (hall be paid; otherwife, if the Prefer! ption be for the
Deer and Herbap;e of the Park, and not for all the Park ; for in
fuch cafe Tithes in kind fliall be paid, if it be difparked and fown
with Corn. A Modus to pay fo much mony for the Tithe of a
* Pafch. 1 3 Park fs good, though the Park be Difparked *. If one Shoulder of
Jac. B. R. MaJ. ^^, j^^^j. j^jUg^j ^g Prefcrlbed to be paid for all Tithe?,and it be
't'cflfoir after Difparked, here the Tithe in kind fiiall be paid; or if the
riep/* ° Prefcription be to pay ten fhilliiigs and a Shoulder of every Deer,
and it be Dilparked, here it (hall pay Tithe in kind, and not the
id) More. ten fhillings only, {d) Upon a Surmise of a Modus Decimandi to
Cafe. II 85. & pay a Buck or a Doe for all Tithes of a Park, a Prohibiton was
Cafe. 1277. prayed, and granted, (e) If a Modus Decimandi be to pay two
CO Hil. 6 Jac. things^ jjs two (hillings for a Park, and a Shoulder of every Buck
SrofaJ.V kill'd in the Park, and all the Deer die, or are kill'd up, yet the
Cafe. ' Prefcription holds good for the two fhlUing?. {f) And Although
if) Hob. 4?. Tithes are to be paid for a Park, yet Deer, as being Fene natura^
ig) Roll. I. are not Tithable, favlng where the Cuftom is otherwife. {g) In
635. c. 4. 6,7. j7j„^j/,^g's Cafe, where Suit v/as for Tithe- Corn growing in a Park
Noy loS.Sr. ^ ^^ Difparked, the Defendant pleading a Cuftom to pay Venifion
in lieu ot all Tithes, and proot that a Buck was pud yearly, but
whether out of this Park or not was a IS! on con flat: The Jury found.
That if it was paid out of any Park, and accepted and allowed,
this was better to uphold the Cuftom, than if particularly tied lo
pay a Deer out of this Park; for now if the Pirk be difparked,^ yet
this payment of the Deer may be performed. Otherwife it is, -if
the Cuftom had been a Deer out of this Park only, for then by the
deftroying of that, the Cuftom is gon alio. It was holdenin fBis
Ca(e by the Judges, that although the Deer had been often, & for
tlie moft part paid out of this Park; yet this doth not alter the
Cuftom, il it may be paid out of any Park ; and if the Cuftom
were to pay a Shoulder of Veniion generally, it may come out of
ih) 1 5 Car. at ^"7 ^^''^ C'^)'
rvrk Affile. ?artrtdges made Tame, do pay not a Predial, but a Perfonal
Thur shies Cafe. Tithe.
€layt. Rep. 51. Vafiure yields a Predial Tithe, w\iich is generally paid by the
Owner thereof, and fo is the Cuftom ; yet P^/i/re-grounds fed
v/ith Cartel that yield profit to the Church, have their Tithe fatif
fied in the Fruit of the Beafts. And if they belong to a Stranger,
who is not of ^the Parilh, it he fell the Paftura^^e, he is anfwerable
for the tenth P'eny; but if he frankly givethit, and the Parhilliio-
ner freely receiveth it, the Pariftiioner is anfwerable for theEftiniir
tion, it the faid Grounds be fed with Beafts yielding increafe; o-
therwife no profit at all to the Church, if fed only with Horfesj
Oxen,,
Of Tithes, 429
Oxen, and other barren Beafts. And as touching the Vafture of the
Horles of Guefts, the Tithe is to be paid by the Innkeeper for the
lame (i). But if the faid Horfes be put into fuch PaHurCj as is aF- (^^ '^^•'^^ ^^■
ter a Crop of Hay of the lame ground,no Tithe is payable by the r^'^ ^ tcalh"
Innkeeper for the fame {k). Nor is the Taflure of fuch Horfes Cafe.
Tithable as the Parifhioner ufeth for his own Riding, nor the Ta- Poph.i4j.
fiure of fuch Horfes as are ufed about Husbandry in the Parifh j but ^^) ^^i^-
where Horfes are kept or bred in Fafiure that they may be fold, in
that cafe Tithe fhall be paid for the Va^ure thereof (/). But if^^^ Hil.ijjac.
Tithe be demanded for the ?aituYe of Riding-Nags for the Saddle, ^•^- ^l^'^
f(
Cafe, &
"or labour and pleafure both, but not for profit properly, aProhi- Eulfo 1 171
bition will lie (m). Nor is the Vafiure of Oxen ufed for Huf- {m) Tr.51 Jac
bandry Tithable, that is, being ufed f )r Husbandry in the fame Pa- B.R. PothUl
rifh ; it may be otherwife, if they be ufed for other purpofes, or ^ May\Cz{s.
for Husbandry out of the Parifh. McJo. 8 Jac. C. B. in Baxters ^^'i^^^^^^-
Cale. And as touching Tithe in the TaHure of Gueft-Horfes by
an Innkeeper, as hath been formerly mentioned ; the Cafe was, A.
Parfon of B. Libelled in the Ecclefiaftical Court again ft C. an Inn-
keeper, becaufe that the (aid C.took all the benefit of his Vafiure^
by putting Gucft-Horfes into the fame: Whereupon C. prayed a
Prohibition, but it was denied by the Court; for that it is Titha-
ble in this cafe. But it was faid , that if C. had taken a Crop of
Hay, whereof he paid Tithe, and afterwards had put in his Gueft-
Horfes into the After-paftureof that Ground where fuch Hay was
made ; in that cafe it had not been Tithable, becaufe the Parfon
had Tithe of the Land before. Trin. 1 6 Car. B. R. Ricbardjcn
and CobbeWs Cafe. Vcfh. 1^1.. Alfb if a man let out his Fafturey
referving thePafiure of a Horfe for himfelf to ride about his HuG
bandry A{Fairs,Tithe fhall not be paid for the Vafiure of this Horfej
but if a man keep and breed Horfes in his Pafiure to fell them,
there Tithe Ihall be paid for the Pafiurf of fuch Horfes, Trin.
I 5 Jac. B.R. Larkin and Wild\ Cnfe.Poph. i ^6. Vid. Trin. 9 Jac.
B.R. Pot hill -Mid A/rf/sCale. Bulfir. par. 1. 171. Ftd. Agifiment.
Vid.Grafs.
Feafe gathered green to eat in the Parllhioners Family,no Tithe
fliall be paid thereof , and that per legem terra : But otherwife it
is in cafe they be gathered co fell, or to feed Swine therewith,
in which cafe Tithe fhall be paid thereof. Vafch.iz Jac.B. R. per
■ Cur.
• Velts or Fells of Sheep dying of the Rot, are not Tithable with-
out a fpecial Prefcriprion for it:The Cafe was, y^.LibeJled in the Ec-
clefiaftical Court for the Tithes of Velts and i'ells of Sheep,which
Sheep died of the Rot; a Prohibition was pray'd , and granted to
ftay proceedings in the Eccleliaftical Court, becaufe fuch Velts are
U u u 1 HOC
A -20 Of Tithes.
not Tithable, unlefs there be a Special Cuftom for it. Trin. 5 Jac'
B.R.Afiton and JVdler\ Cale.
Thefanti that are tame, pay a perfonal, not a predial Tithe. If
a man hath Phefants^ and keep them in an enclofed Wood,and elip
their Wings,and they hatch-Eggs, and breed up young Phefants,
no Tithes (hall be paid of thefe Eggs or young Phefams, for that
they are not reclaimed, but continue to be Fera naturae, and would
go out of the enclofure , if their Wings were not ch'pt ; ^d in
this cafe Prohibition hath been granted between Windbrook and
^vansj^^ich.ll Car.B.R. It was furmiled, that no Tithes are paid
of them in a great Circuit called the Chiltern in the fame jCounty,
'v'iZj. of Bucks, and (bprelcrlbe in non Decmando\ but the Court
granted the Prohibition, for that they are Per a natura.
Pigeons are Tichable, Mores Abr. 1170. But if a man keepa
Family, and hath Pi^eow- holes about his Houfe, and he keep fome
Pigeom, and he kill and (pend in his Houle the young Pigeons
that are bred there, he (hall not pay any Tithes for them : In this
Cafe between Vincent and Tut, Hill l 5 Car. B. a Prohibition was
granted, and upon the Parfons plea, that the Parifhioner (old them,
a Confultation. For Tithes of Pigeons no Prohibition lies, as was
Refolved in Jones^Ln^ Gafirelh Ca(e. Hill. 1 5- Jac.B.K. Rol. Rep.
For the Court there (iiid, that Tithes ought to be paid of Pigeons,
and for Conies, per Doderidge Juftice, to which the Court agreed.
In the Cafe of a Prohibition for fuing for Tithe Vigeons., the De-
fendant in the EcclefialHcal Court pleaded payment , they refufe
the validity of that Plea without proof by two Witnefles : the Court
faid,it would be a great inconvenience to bring two Witne(res to
prove payment of every (brt of Tithes , wherefore a Prohibition
was granted. Malary and Mariots Caie* Cre. par.l. And in ano-
ther Cafe a Prohibition was prayed, where the Par(bn (ued in the
Ecclefiaftical Court for Jithe of P/>eo»j , and awarded to ftind
becau(e the Court there would not allow the proof without two
Witneffes. More' s Abr. Cafe ixo8» Probably the (ame Cafe with
the former. Vtd. Doves.
Vigs^ If there be but Nine,as alfb Cal'ves, if there be but fix,and,
the like, under the number of Ten in oae year, the Par(bn can have
1)0 Tithe thereof in kind that year , without a (pecial Cuftom for
it ; but muft have his Tithe pro rata either in mony the ftme year,
if there be any Cuftom for ir, or in kind the next year, reckoning
both years together, Mich."] Jac.C.B.Vigs are accounted a predial
Mixt Tithe. 'MKh.)^. Jac.CB.
P/fjof Stone, Lime, Gravel, Marble, Marie, Chalk, Cole, and
the like,are not Tithable; for the Land muft not pay a double
Tithe. Kegifi.'$i.F.N.B.<yi.<). Bro.Difmes 18.
Plants
Of Tithes, 43 1
"Plants or young Plants tranfplanted are in fbrae cafes Tithable ;
for rhe cafe was,a man had a Nurfery of young Plants in his ground,
and ufed to transplant them , and to give or fell them to others,
"who planted them de no'vo in their ground out of the Parifh \ the
Parfon of the Pari fh, where the Land lay in which they were firll
planted, Libelled in the Ecclefiaftical Court for the Tithes of the
value of the (aid Plants tranfplanted, and a Prohibition was grant-
ed, and Declaration thereon given, and a Plea given in , and Re-
plication, and thereon Demurrer ; and it was argued by Maynard
for the Defendant,and Rolls for the Plaintiff; The only point was
whether Tithes iTiouid be paid in that cale \ it was Relolved fer
tctam Curiam, that it ought to be paid ; and thereupon a Con(ul- (t) Hill, 14.
ration was granted (t). The Cafe had been otherwife Refblved, if Car B.r. Gibs
the faid Plants fo tranfplanted from the faid Nurfery had been re- ^ex(.WyborHe,
planted in the fame Parifh (u). /«TV^*'^°
Prefeription, which refers to a certain perfbn, Houfe, Land, or
other things as Cujfom doth to a County,City,Town,Hundred,&c.
may be confidered under two refpe6fs, either de modo Decimandi^
or de non Decimando : There is alfo in fbme Counties a Decimando
res non Decimabtles , a Tithing of things in tiieir own nature not
Tithable, as^ the Tithing of Tin and Sea-Fifh in Cornival and De-
'von. Lead in Darbyjlnre^^c. but this is by Cuftom , not by Pre-
fcription, whdch though in refpe6t of place is^ regularly of a more
extenfive latitude than properly Cuftom isjye^ inrefpeit of perfbns
and things is^ regularly under more Reftri6fcive limitations than
the other ; but as to their Origination , they both ought to be
continually-con (lane without interruption; and as to their Anti-
<^ui.ry,both of themought to be of a more Ancient date, than any
Memory of man can-centradiiSbjand fuch being once duly acquired,
tlierQ ai'e not many> interruptions or difturbaiuces- that will null ,.^
qr trultrate the fame (w). A Prejcri-ftion goethto one man, and inft.j^. ^ par,
a Cujlom to moiny. HilL6j-ac.rot.i6\ 3. Rolls vcrCMaJon,Brownl. 6si,6s^.
Rep. par, I. '^Hjcription is perfonal,and always made in the name
of a certain perfbn, or his Anceltors^ or thofe whofe Eftates, &c.
But a C«y^cw. is localv and alledged in no perfbn, but that within-
the Manner there is fuch a Cuftom. Co. 4. Foijlondi Cratchwood's
Cafe. The payment of a Sum of money or other thing in lieu and
recompenceof Tithe for fixty years or thereabouts, Is held a rea-
fbnable time to make a Prefcription (x). It was Adjudged in Grif- ,^. -, y,
manand Lewes C^Ce^thiM a Vrefcriptionto pay Tithes of one thing Lirtl.14. &
iftrecompcnce of Tithes^Df another thing, is not' good. Adiudged Crompr.Juri:-
alio that Tith^sfhj^ll be paid of Aglftment of Catrel, againft the '7-: • '
Opinion of Fttz,. 5:3 Cro. par.i. This Pr<?/<:rz/'/i(3^is Reai*,fnatis, ^y^J^7'5i
it re/pe<Sls. not^th© New or never before Tithed' Ifruksi,: but the
Tirhable.
43:2 Of Tithes,
:Tkheable grounds that produce them ; thence it is, that an alterati-
.on of Grain or Plants in the fame Ground alters not a Prefcriptio»,
but Tie that prcfcribes in the one, fl:iall prcfcribe in the other aifb.
Yet a 'Rrefcriftion extends, to no. more than is jnpoflcffioii : And
.therefore if the Parfbn^of L^. prefcribes t-O'theilTithesof tlie Parifh
of B. and there happen to he Decima novaUum^thzx. is, Tithes a-
rilmg of fuch Grounds as were never manured, nor yielded before
any profit to tiie Church,the Parlbn of 5. and not the Parfbn of .^.
fllail have them-; nor will Prefcnpfivn lye againll a Coinpofition
between the Pa):{bii and the Vicar (y) ; nor hath Frefcrtption any
cV^mi place,wbere the Intereffed (in his right) can make, no demand, the
, ; .w,ii'/ rnatter ceafmg, whereupon it fhould work: So of Wood never
• V) .p..^ -ij:: cut, the Tithe could never be demanded. Regularly a Yrefcrtption
to pay no Tithe,nor any thing in lieu thereof, is not good, nor will
it difcharge,though nothing can be proved to have been paid with-
ic) Dr.& St.. j^ ,.j^g memory of man [z,). Yet a discharge of Land from Tithes,
Bro'. Prccicrip. ^^^V ^^ fiiewcd another way, which will amount to the payment of
5)z.Co.244. no Tithe. So that although a nicer Lay-man cannot prefcribe i»
(a) Co.2. par. nm Dccimando {a) ; yet he may prefcribe in modo Dectmandi , to
^u^d^^^c" P^^ ^ Compofition to the Parfon in lieu of all his Tithes ; and fiich
inf Ed. i^ Compofition (hall bind the Parfon, and luch a Vrefcrtptton Oiall be
by Ctike. ' S^^^ ij')- fiu"^ ^s to perfons Ecclefiaftical , fuch .may prefcribe not
{/>) Adjiidg. only in modo Decimandiy but alfb m non Decimando , and fo may
Mich. their Tenants; whence it is, .that a Parfon of :one Pari ih having
part of his Glebe in another, may prelcribe in non Decimando for
fcjRoll.i. the fame (c). So that a Prefcription even de non Decimando
(d)'y[ml: ^- ^^'" Ecclefiaftical perfons , their J^armers and Tenants may be
Cafe 4s>-8. & g*^^'^ (^) ^" ^^P^ ^^^ Molms Cafe it was agreed by the Court,
65)3. that a Spiritual man may prefcribe in Non Deamando. Cro. par. i.
^ And as for atiy other perfon a Prefcription dt modo Decimandijthut
is, to pay Mony or other things in lieu of Tithes in kind, is good j
and if he can prove it time out mind , this will difcharge him
(e) Co. 1.44, (^ ^' Thus a Fre/cription to pay 4 d. or any other fiim for all his
45. Tithe whatever,orfor all his Tithe-Hay, or for all his Tithe-Corn
in fuch a Farm, or in fuch a Clofe,or for all his Fruit in fuch anfOi'-
chard, is good. But xFrefcriptioTt^o^ Paying ^^ Tithe-Corn , bq-
caufe he pays Tithe- Hay j or of paying no Tithe of his Cattle,bef-
(/)Hill.8 Jac. caufe he pays Tithe-Corn., is no good Prefcription (f). Or of not
B.R. Smith's paying of Tithes in one pLsce, becaufe he pays in another ; or of
C^^- . not paying Tithe-Larnb,becaufe he pays Tithe- Wool,W e contra,
.. Di'.oj: ofnot paying Tithe , for other Cattel, becaufe he pays iz d.ioipi'.
U) 7 Jac.C.P^ ' afCoVir : ..thefc and thsdike are no eood PrefcriptionsC p;). Yet a
Cafe. '"■ ''^^^/<^^^)'^'^<'» t^ pay a lefspart, thanaTenth,may begood and bind-
ing,. M&> a I^refcription tQLip?iy a peny called' H^^r;/6-^»_/, in fatif^ .
. ■' ' ■ fa6lion
Of Tithes, j^2^
fa6lion of Tithe for all CombuftibJe VVood , may be good, i^h) {h] More! "^
Likewife, a Prefcription by theLord of a Mannor,to pay fix pound ^^^e 1280.
in latisfa£lion of all the Tithe- Corn within theMannor, and to
have the tenth Sheaf or Cock in recompence of his payment, is good
(/■)., But if the Prefcription be to be difcharged of Tithe-Hay of fuch x., j^:}£ji:vi^
a ground, or Tith-Corn of fuch a ground, and the Owner change d^^ ^k-"^ t.i ;'
the nature of the Ground, as Paftureinto Tillage, orTillage into •" •"': '; '■
Pafl:ure,the Prefcription is gon, {k) Ytt2i Prefcription \i notdeilroy- rj^ pr-n : '.
ed by an alteration of payment, as ifinftcadof the mony to be paid, B. Ks'hipton'i
anotherfum, or Tithes in kind, have been paid for xq years pall. (/)Care. Adjucjgi v.
But a Prefcription to have Tiihes of Houfe^ riccording to the rent, ^^1 Co-iJpoii» :■
is not goodj for no Tithes are to be paid for Houi'esin any City,lave \}'^' '^^' ^
in Lond. only, {in) Regularly Prefcription referrs to one in private, fj^i^^' ,.i
as Cuftom does to many in publick; & where a Prefcription de wo-
do Decimandi is denied, there a Prohibition will lie to try it at the
common Law: otherwifcjifthe P refer ipt ion ovCuHom be agreed. («} (») Ho-b; 247*1
Jf a Prefcription by a Parilhioner be to pay the tenth part of Corn "'
zi a. Modus Dectmandi (or the HayaKb that grows on theHeadlands, " ^" '
it is not good; but fuch Prefcription for the Corn and After- Rakings
is good, with an averment, that ihey arc f par [<£ minus ojolun-
tarie. (0) If there be a Prefcription of a Modus Decimandi for an ,. p..,j y^ ■
Orchard or Garden, and it afterwards ceafesto be fuch, the Modus b.R. Rot. 1^6.
fhalf ceafe alfb, and Tithe fhali be paid in kind; but if it afterwards Cafe P^rry
be rtffored to aGardencr Orchaj:d,by being replenifhed with,He:bs ^^^'^ chmnfey.
or Fiuit-Trecs',. k ftiall pay the Modus as formerly, .-{p.) If the ^°^.^^* '
Mcdiis be to pay two (hillings and rlie Shoulder oi three Deer for a g j^ '(- /^^L^y
Park, the Modus remains, though the Park be difparked ', it is O' verf: Andre-ws^
therwlfe, in cafe the Modus be only to pay Venifbn. (^) Or if the Rol. Rep.
Prifcription be to pay a certain Sum of mony for all the Tithes (^^ ^''''^•
of a Park, the Modus fhali continue, thougfv the Park be afcer-
Avards difparked. {r) A Prefcription of a Modus Decimandi ge- ^^j p t^
Tnerally for a Park is notgood^ if it be Diipaiked; but it ihall be b.r. C. Maf.
particularly for all Acres contained in the Park. (/) Prefcription be- chalSc Price,
ing a Temporal things is triable only in the Temporal Courts; & R"'- ^^^P-
therefore in the Cafe of two perfons of two feveral Panfhes, where ^'"j f"' '^°"<^"-
one of them claimed Tithe within the. Parifh of the other, and ^^y^^^^'s cafe
faid, that all his Predeceffors, Parfbns ofj fuch a Church, wz,. of^gv R^p,
V. had uled to have |he: Tithe of fuch, Lands within the Parifh Sharp \e\C.
of S. and pleaded the fame in. the Spiritual Court; The Court was sharp.
ofOpinionj that in ihis Cafe a Prohibition did lie, fur he clainis
only a portion of Tithes, and that by Vrefcnption-t and not meer- (0 Vid. 55- Vil
\y as Parfbn, or by reafon of .the Parfonage, but by. a Collateral ^ ^!"' ^^^^^^'
caufe, fcd^ VreJ'cription, which is a Temporal^ caufe and. thing... (j) y^^ ^ ^^^
And m another Cafe it hath been Adjudged, that if a Vrefcr'tption q^^^^ ^'^
be.
434 ^f Tithes:
be laid to pay a Modus Decimandi to i oo Acres,or to leveral things
if there be a failure of one Acre, or of one thing, it is a failure of
(«) ifCar.Sr the whole Prefcription. (k) But where it hath been Prefcribed to
Anth. Robm-' pay in one part of the Land, the third part of the tenth ; and in
/owVCafe. another parr, the Moity of the tenth for all manner of Tithes, it
vid Clayt. \^^^ ^jg^n held a good Prefcription. (jw) Thele Preferipticns de
f ^^Hli^ ^ ^' A/b^o Decimandi are equally incident as well to Lay-perfons as to
Sz. B.r!^' perfbns Spiritual or Ecclefiaftical ; but as to Prefcriptlons ^(? «o»
R6<ks Cafe, Decimando, none but Spiritual perlons are capable of being dif-
Godl>. iio. charged of Tithes in that kind, as was Relblved in the Bifhop of
(.V) Co. i.par. pf^incbeHers Cafe, (x) Yet a whole Country or County may Pre-
hefier'V^r' ^c"t>e de non Decimando, though this or that particular meer Lay-
(j) Cafe ibid.' ^1^3" cannot ; (7) nor indeed can the other,unlefs there be fufficient
& Dr. & Stii. Maintenance for the Clergy befide?. {z.) The Prefcriptions de
1^7' ;?7(j^o Pec/w^w^/ are confirmed by Ad of Parliament ; (a) and if
(%) Dr. fe 5tu. ^^y Lay-man will Prefcribe de non Decitnandoj to be abfblutely dif^
(a) St 2 Ed 6. charged from the payment of Tithes, without paying any thing elfe
c. 13; ' in lieu thereof, he mulf Found it in fbme Religious or Ecclefiaftical
(b) Seld. Hift. perfon, and derive his Title to it by A61 of Parliament ; {h) and
Decim. 405). jf jg fjot fufficient to fay, that they who Prefcribe de non Deciwan-
RoU. 1 .65 3.H. ^^^ ^j.^ Church-wardens who have Land belonging to their Church,
(c) R 1 )6id ^^^ ^^^y ^'"^ neither Religious nor Spiritual perfbns : {c) But they
who are fuch indeed, may fb Prefcribe not only for themfelves, but
(d) Rol. ibid ^^^ ^°'' th^''' Tenants and Farmers, {d) as it was formerly (aid. So
H. 4. & Co. i. alfb may the Kings Patentees of thofe y^i'/'^'- Lands that came to the
45. a. Crown by the Statute of 3 i H. 8. Prefcribe denon Decimando, by
force of the faid Statute, if fb be it may be proved, that they have
beyond the Memory of man {6 enjoyed the Lands difcharged from
the payment of Tithes, becaufe he hath time out of mind repaired
the Church, is no good Prefcription : otherwife, in cafe he had re-
paired the Chancel, and in confideration thereof had been quit of
Tithes ; theReafbn is, becaufe the Parfbn not being obliged to re-
(e) Roll. I. P^^*" ^^^ Church, hath no recom pence. <[e) And in Sheerwood and
^4P. d. 8, 9. Winchcombs Cafe it was Refblved, that a man cannot Prefcribe to
vid. La-y of have Tithe as parcel of a Mannor, for that they are Spiritual j but
Tfthfsie. i€. a Prefcription to have Deciwam partem granorttm,\s good.Cro.Par. i .
• "" ' In a Cafe for a Prohibition; j1. Libelled in the Ecclefiaftical Court
for Tithes of rough Hay growing in Marfhes and Fenny-grounds
in M. The Plaintiff Surmized, that there was a 000 Acres of
Fenny-Lands within the Parifh, and 600 Acres of Meadow, and
that the Parifhioners paid Tithes,for Hay and Grain, growing upoil
the Meadow and Arable Land, and had paid a certain Rate for
every Cow, and becaufe they had not fufficient Grafs to keep theii-
Cattel
Of Tithes. 45 5
Cattel in Winter, they ufcd to gather this Hay , called Fenny-
Fodder, for the fubftance of their Beafts for the better increafe of
their Husbandry i and for this caufe had been always freed from
the payment of the Tithes thereof. It was Refolvedjthat the Sur-
mife was not (ufRcient for a Prohibition ; for one may not Pre-
fcribe in non Decimando^ and their alledging, that they bertowe4 it
on their Cattel, is not a caufe of Difcharge : A Confultation was
awarded. Webb, and Sir HenWamers Caft-, Crs. far. i. Alfo in
Munday and Levkei Cafe in a Prohibition, it was Adjudged, that
it was not a good Vrefcription , that Inhabitants have ufed to pay
Calves and Lambs,and a peny for every MIlch-Cow,In fatIsfa6tion
of all Tithes of Lambs, Calves, Milch-kine, and all Barren and
other Beafts, and Agiftments. Mores Rep. And where a Parfon
filed for Tithes of Fodder, and the Parlfhioners prefcribed in non
Decintando, btcaufe the Fodder was for their Cattel which manu-
, red their Land : It was held no good Prefcripfian; but it was A~
greed. Tithes (hpuld not be paid for their Agiftments , nor for
Hedge-wood to enclofe the Corn, nor for Fuel More ibid.Cafe 891.
In the Cafe between Figott and Hearne, the Lord of the Mannor
of -5. in theParifh of D. did Prefcribe, That he and his Anceftws
and all thofe whole Efta tes,&c. had ufed from time to time, where-
of,6cc. to pay to the Parfon of D. the now Plainlilf, and his Prede-
ceffors 6 I. per An. for all manner of Tithes growing within the
laid Parlfh ; and that by reafbn thereof, he and all tho/e whofe E-
ftates,&c. Lords of ,the faid Mannor , had ufed time whereof. Sec.
to have Decimam Garbam d^decimum Cumulum Garbarttm of all
his Tenements within the laid Mannor. It was in this Cafe Re-
fblved, ( I J That it was a good Prefcrlption , and that a Modus
Dectmandi for the Lord by himfelf , and all the Tenants of his
Mannor, for barring the Parfon to demand Tithes in kind, is a
good Prefcription, becaufe it might have a lawful Commencement.
(i) It was Refblved, that it was a good Vrefcription to have Deci-
mam garbam d^ decimum Cumulum ^arbarum vel granorum,ov the
tenth (hock ; for he hath it as a Profit Apprender,and not as Tithes.
(3) Refblved in this Cafe,That if the Queen be Lady of the Man-
nor, (he may preicrlbe to have Tidies, for that (he is capable of
them,(he being Perfona mixta df capax Spiritualis Jurifdi£iionis.
Moreh Rep. And in Green and Handljes Cafe it was Refblved,
(r) That it is a good Cuftom to pay the Tithe- Wool at Lammaf-
^<y, though it be due upon the Clipping, (z) That for the Paftu-
rage of young Barren Cattel preferved for the Plough and Pail, no
Tithe (hall be paid. (5) That a Prejcription to pay a peny called
z Heart b-penj,m fatisfadiion of the Tithe of all corabuftible Wood,
is a good Prejcription. Mcre^Cafe i x i ? •
X X X Pn-
43^ Of Tithes.
— -, — -— - -.--,,.■■.,
Tr'fveledge is derived from the Supream Authority upon good
Conlidcration, and refers fomtlmes to Perfons, fomtimes to Places
and is an exemption from Tithes derived from fuch Supream Au-
thority. None are to pay Tithes for Lands Priviledged or lawfully
difcharged from the payment thereof. Stat. i Ed. 6. c. I 2» yet
fuch Pri-vtledges as are meerly Perlbnal, do not exempt Lands
from the payment of Tithes^ longer than they are in the hands or
occupation of Priviledged perfons.
<i
Q
XJarries of Stone are not Tithable. Adjudged Mch. 1 9 Eliz.B
V/ R.&TafcL ^^Eliz,.C.B. Liff &c JTats Czfe. Cro. par. i.
& Meres Kep. Nor do the parries of Slate, Cole, or the like pay
any Tithe. More. Cafe 1175. Nor ^ar,ries of Lime, Gravel, Sand,
or Clay, for thefe are parcel of the Inheritance. Regi/l; 55. F. N.B.
5 5. Bro. Difmes 1 8 MicJj. 1 5 Car. B.R.Skinner'^sCak:]io Tithes
fliallbe paid of Quarriss, for they are parcel of the Freehold. Hill.
1 1 Jac. B. K. per Curiam.
R.
R Mings of the Stubble of Corn or ©rain are not Tithable, for
they are to bekft for the Poor and Orphans, and the Law
will not give to the Parfbn or Vicar Tithe of that which is ap-
pointed for Alm*s. M:ch.6 Jac.C.B. Smith's Cafe. & Pafch. -jjac.
C. B. Adjudg. Cro, i. 660. So that whereas it is faid, that the
Rakmgs of the Stubbie of Corn is not Tithable, where the Corn it
felf was Tithed, More Cafe 45 5. It may not be underflood as if
the Tithing the Corn it felf were the reafon why the R<ikings are
COLev. i3. not Tithable > but becaufe they are by the Law o(Mofes(f)duGto
»2. the Poor, and therefore not to be Tithed ; underfland this alfo of
ordinary Rahngs, not voluntarily fcattered, for of fuch only it is
that no Tithes fhall be paid, as not due by the Le-vitical Law, and
for that they are but the fcatterings of the Grain whereof he had
paid Tithes before. Tajch. 7 JacB. per Curiam. Hill. 8. Car. B.R.
Saunders & Paramour, per Cur. Tnn. 3 J^ae. B. R. Pafcb.i^ Jac,
B.R.Pms and Harris, Prohibition granted; otherwife it \s, in c&{q
the Kaktngs were voluntarily and fraudulently fcattered. HiL
i4-jac. B. R, Peck and Harris per Cm Adjudged, Mtck 3 Jac.B,
^___ Of Tithes. 457
R. per Popham. Pafch. 7 Jac.per Cur.Mkh. 1 4 Jac. B, R, Joyfe &
Parker. And where there is a Prohibition of Tithes of Rakings,
the Suggeftion ought to be,that they were Minus voluntarie fparja^
otherwile it is not good ; for it is not fufficient to fay, that they
were Lapf4e & diffipatA in Colleclione. And It was Refblved in pia. Caf.
Jobnfon and Aivbrey^s Cafe, that Tithes are not to be paid for Peck and Har.
After-pafture of Land, nor iov Rakings of Corn. Alfo m Green ris. Cro^. i,
and Httnits Cafe, a Prohibition was for fuing for the Tithes of
Rakings of Barley, a Prefcriptlon to make the Barley into Cocks
being alledged, and to pay the tenth Cock in fatisfa^llon of all
Tithes of Barley, and Adjudged a good Prcfcription. Notwith-
ftanding In the Cafe between Bird and Adams ^ in a Prohibition to
ftay a Suit in the Ecclefiaftical Court for Tithes of the Rakings of
Lands after the Crop of Corn was taken away ; It was held, that
the Prohibition would not lie, but that Tithes fhould be paid of
Rakings. Mori's, Rep. But vid. 4x Eliz. B.R. in Green and Hale's
Cafe, it was Adjudged, that by the Cuflom of the Realm Tithes
fhould not be paid of Rakings. Alfb in Gr^en and Handle/r Cafe
it was Refolved, that Tithes fhould not be paid of the Rakings of
Corn, unlefs it be a Covinous Raking to deceive the Parfon. More,
Cafe 11 1 5.
Rate-Tithe is that which is paid according to the Cuflom of the
place, for the Feeding of Sheep and all other Cattel (^except La-
bouring Oxen and young breed of Cattel J for the Paflure and In-
creafe thereof, whether they feed on the Common or elfe-
where.
Roots o^ Coppke-v/oods grubbed up, fliall not pay Tithe, un-
lefs it be by Cuftom , as hath been Adjudged in Skinners Cafe,
Mich. 15 Car. B. R.d^ Marjh. 58. In which Cafe it was alfo Re-
folved, that if a man cut a Coppice-wood, and thereof pays the ^^If'^' ^*^
Tithes, and after before any nevv Sprouts grow, he grubs up ^^^ i^/skw
3RGots and Stubs up the Wood, he fhall not pay Tithes thereof, for fercur,
th^y are parcel of the Free-hold (g).
X K X %
438 Of Tithes.
s
SAjfron pays a Prei:Hal Tfthej and is inter Minutas DecimaSy as
appears by Bedmgfield and Peaks Cafe. Fafch. 3 8 Elix.. B. R,
Where the Farmer of a Parfonage (had in the Ecclefiaftical Court
tor Tithes of Saffron againfl the Vicar: the Vicar pleaded that he
iM his PredeceiTors, time out of mind had had the Tithe of ali
Saffron growing within the Pariin.The Plaintiff pleaded, that the
Land where the Saffron was growing this year , had been for 40
years before fowed with Corn ; and becaufe they in the Ecclcha-
ftical Court would not allow the Plea , a Prohibicion was prayed,
becaufe the Right of the Tithe did come In debate. It was AJjudg-
ed,that a Confultation fhall be a warded. Yet Mich, i o Joe, B.R^
per Curiam, they are faid to be Great Tithes. K/W. Bedmgfield &
Feaks Cafe. Cro. par. i . Whence it may be obferved, that by the
Ecclcfiaftical Law,rhe Vicar fhali liavc Tithe of Saffron of Land
WMieh. 31 newly fjwed with 5^/r<?»,albeIt the Parfon before had Tithe of the
^Sln,fidd & ^^"If f ^"^ being fowed With Corn (a).
Feah Caf*. '^^"•' ^7 <»ultom Tithe fiiall be paid of White-Salt. Trin. 16^
Goldcsb. Jac. B.R.Cafe Jones & Gawer, Admit. But Prohibicion granted on
if49,jfo.& a Modus..
Cafe'^'oQ ^^'^ •* ^^ ^^^y continue in the PariOi all the year,tl?e Tithe there-
{h) parch. 1 7 ^ ^" .'^'"^' ^'^y ^e claimed by Cuftom ; but if they ,be fold before
Car.CB. Shearmg-time,and a Hilfpeny be then claimed to be ^aid for every
Wcedin 8c Sheep Co fold, it is held a very unrealonable Cuftom (^). If Sheep
vZmK' ^' ^^^y ^^^ °^ ""'^ Parifh into another , and there yeaq, no Tithe is
v^d.Mich.z payable for this to the Parfon of that place ; but if they go there
Popii.Rcp.^ ^^^ ^^'^^^y ^^ys o*" more,. for this a Rate-Tithe is payable to that
: 9 7.acc. pl^ce ;. tor, tor Sheep removed from one Parifh to another, each
M4ifli.75>. Parfon mufl have Tithe pro rata : But under thirty days no Rate-
Tithe is to be paid. Like wife Shesp feeding all the year in one
Panfb, and Couching in another, the Tithe fhall be equally divided
betwixt theParfons. So likewife if Sheep go awhile in one, and
another while in another Parifti, a Rate-Tithe is payable, as afore-
faid, to both. But if Sheep arc brought only by night to dung the
Land,no Tithe there is to be paid, unlefs they Feed there half their
tjroe. And if Sheep be brought from one place to be fhorn in ano-
ther,where they were not before , the Tithe is payable where the
Jheanng is,unlefs it be paid to the Parfon of the place from whence
tbey came. Tnn,^ C^r.Jff.Kjna Prohibition infer Jjhton and fViller.
And
Of Tithes: 45^
And where feveral mens Sheep fed in one Flock under one Shep-
heard, they fhall be feverally Tithed by their refpediive Owners.
Ltnclw. c. Quc77iam propter.verh. Lana. A Prohibition was prayed,
becaufe the Parlbn Libelled in the Spiritual Court for the tenth
part of a Bargain oi Sheep , which had depaftured in the Pariih from
Micbaelmajs to Lady- day: the party Surmifed, that he would pay
the tentl\ part of the Wool of them, according to the Cuftom ^ -
the Parifh : The Court would not grant a Prohibition, for that,
by this way, the Paribn might be defrauded of all, and the Sheep
being now gone to another Pari{h,he cannot have any Wool at this
time, becaufe it was not the lime of Shearing {c). CO Mid?.
SpHaticn or the A6tion thereof, may be commenced in the ^ ^^^ ^ ''^•
Ecclefrallical Court, where one Parfon rakes away the Tithes or ^'^^' ^^^^
Profits belonging to the Church of another Parifli, if the Tithes
and Profits belonging to the Church of that other Parifh, do not -
amount to the Fourth part of the value of the Church, in which
cafe the one Parfon fhall have a 5"po/;<?fio»againft the other in the
Ecclefiaftical Court, although they claim by fever Patrons j and
if they claim both by one Patron, there the one (hall havea spolia-
tion againft the other, although the Profits do amount to above a
Fourth part, as to a Third part, or to the Moiety of the Church,
becaufe the Patronage doth not come in debate. But if the Pro-
fits do amount to above the Fourth p^rt of the Church, and they
claim by (everal Patron?, that if^one> Parfon fueth a Spoliation in
the EGClefiaftical, Court a5,3tinfl theoth^r, the party grieved iiall
have an Indicavitj which i^ in the nature of a Prohibition, unto the
Ecclefiadical Court, becaufe the Right of the Patron doth come in-
to ceba e : But where the Right of Tithes doth only come into
Debatf, and not the Patronage, there the Jurifdldiion doth belong
unto the Ecclefiaftical Court, Co. SeleclCaleSy'inihe Cafe deModo
Pecimandt '^^j^(^^/j^0y<\6.'^%H.(i.\o,hy Fort efcue y "1.6 H8. 5. acc^
Afad if there be^, Contention De jtere- Decimarttm,X>ifigimm habens
Je jUrePaironattts^tuncfpeBat ad Legem Gwi/ew^ bat the Opinion
of all the Juftices. Miek >t9 E/.^.R. mBujhie the Vicar of Faucas
Cafe. Go^^/f. 6;. ,; : '■ ..':;.. . :■.••:•.■".::•■
Syh^ Qadua doth pay a Real and Pi-edial Tithe; by Syl'va C«°
V«//istQbeunderitood,.aJl fuchTreesofwhat kind'fbever, asmay
be cut, an,d being cutdo grow again. from the Stock or' Root. Lind,
-c.Qimn^uam ey; Sol'vemihitSj lihi 5^ Oral! fuch Wood as may be
cut, -and ("after Lopping, Topping, or cutting from the Boughs,
Branches, Stock, or Root) do grow again; by which* are excepted 50 Ed ?. ic.
Great Trees and Timber Trees;So that of ^Sry-v^ C^Jwtf and Under- 1>-^» Bdknap.
^^qods Tithes are payable; but not ofthe Great Trees,or of f^enty
^years growth, and i))at by the Statute of 45i£i. j.c^p.^. WiJiereby
440 Of Tithes.
Int^""!^'' ^f'''^'^'^'''^ will lie, in cafe, &c. which Statute exemptech Wood
SeldemH^&.'^' °^ J,^^"^^ X^^" gcomh. and Upwards fiom the payment of Tithes,
Decim. z3^. ^^ Prefcription doth fuch Wood as hath not been Felled in the Me-
Rol. I. ^3 7, mory of man ; yet Wood of the age aforefaid, not in ufenor apt
^3 8, 6i9, for Timber, is funder permiffion of the faid Statute^ Tithable Bo-
dy and Bough,Felled or Lopped: And fuch Woods as are not Syha
Cadua nor Tithable, go under the notion of Grofs Woods, or
Great Wood, viz,, fuch as are ufually employed for the Building
fd)Co. 2. par, of Houfes, Mills,&c. as hath been ReC)lved, f^) of which fort are
r") PW' ..o ^'^ ^^' ^^""^ ^^'"^^^ Horn-beam, and Afp: (0 Ytt if thefe be cut
^ ^^ ' 470. un^er 1 1 years growth, they are accounted SylvaCadua, and ou^ht
to pay Tithes. But the Loppings ofgreatOaks, Afhes, &c. though
if) Co. ubi V"^ i:T,^f under twenty years growth, fhall not pay Tithes, be-
fuprj. »"g Pnviledged by the Bodies ; (/) nor are the Shoots and Under-
(g) More. 761. Wood growing from the Roots and Stocks of fuch Timber-Trees
Plow. 470. b. Tithable, or from the Roots andStocks of Treesabove the growth
Ro . 1 640. of 20 years, which have been felled. ^g}Vid, Trees, Wood, Under-
woods, and Timber.
T.
TAi^s, orGrecnrwmjGutb^fot-erhey a^e'Ripe, or mowed
when rhey are green, for the Feeding of Gattel, When Suit
hath been commenced in the Ecclefiaftical, Court for Tithes theredf
a Prohibition bath beenigrantedupon aSuggeftion grounded upon
fpecial Guftom ; that no Tithes ought to be paid for the fartie.
Fetches, Taresj and other courfe Grain, eaten only by the Cattel
ivhich do the Husbandry-work in the place, pay no Tithe, exempt
therebeifpeeialCuftohaforit. Lane i-6. Notwitliftanding, whe-
t_her they are Tithable or not, if cut for Horfes is a Queftion ;
for where upon a Libel in the ^Ecdefiaftical Goutt for Tithes of
^B ^u-?^" *^"^ ^°^ feedingof LabouringHorfes,it wasmovedfor
a Prohibition, it was not granted upon fuch a general Suggeftion,Jt
being no gr<iund for it: Otherwife upon th^ Cuftom of ^the Parifh,
M^Jvefr ;2?' ""^ ?*S^^^^ ^^" F^'^ ^^ ^«ch cafe, (a) it was Mi;d arid
ThurVZ ^^"^"'^^ 5 Cafe, which as clfewhere Reporied, that a Prohibition
Jong) Rep.l ^^^ P^'^ye^ upon a Suggeftion of vthis Guftom that for Tares <;ut
or mowen before they are ripe, and given to Piough-Cattci, Tithes
ought not be paid : And another Cuftom for Headlands fdWn
With Corn, ufed to be fed -with Plough-Cattelj or mowed or <jBt
.for that.pucpofe, thacthfe Owners fliould be difchargeddf TithesJc
vlfca$h<jWen'i>7 the Gourt,'ri»at:this Suggeftion -gixiUiidcd upon a
Special
(a) Mich. 7.
Of Tithes. 4^.1
Special Cuftom was good: and the parties being fued for the Tithes
of the premilTes in the S-Courr, the court granted a Prohibition (J?), ^OHill.ioC^r.
TtmberTrees, that have been ufually Top'd and Lop'd fueh ^■^- -^^"^ wid
Toppings and Loppings are not TithaWe ; for the Law that doth '^^"^"'"^^'^^^
priviledge the Body of the Tree, doth priviledge alfo the Bran- ^^' ''^* ^^^'
ches thereof. The Law is the fame, if the Tree becomes Rot-
ten, Dry, and Barren, (c) Ttmber-ltrees iu all Counties, as Oak, W Co. 1 1. pa.
Afh, and Elm, after twenty years growth, are not (as aforefaid) '" botpHi C.
Tithable. Alfo Beech, Horn - Beam, Maple, Afp, and Hafel, may ^°; ' '' P^' 4^*
An fbme Counties, where there is fcarcity of other Ttmber and an '^"^ ^
Ufage accordingly, be computed Qs7imber'l'rees, and not Tithe-
able. But any Ttmber-Wocdj if it be cut within lo years after
the firft planting thereof, is Tithable. (d) But on the other hand
Timber-Trees once dilcharged of Tithes are for ever discharged ^^ J**^°''^°
and quit of Tithes, though rotten & dead. Whether a Parfon may
Prefcribeto have Tithes of great Trees, contrary to the Common
Law and the Statute of Sylva Cadua, Quafe, 9 H. 6. 56. It is
faid by Belknap , (e) that of great Trees, or of Timber-Trees, , .
Tithe was never demanded, and that by the Statute of 45 ^^''^- • :^*-
But 'vid. Coke I I par. in Li ford's Cafe, the words in tHat Statute,
and in the Book of 5 o E. 5 . ^viz. Great Trees muft be intended,
' "Oaks, A(h,iand Elms, of all which as well befoi^ the faid Statute
as-fnice, if tliey'-were of twenty years growth, it feems by the Com-
mon Law Tkhes were not to be paid, becau/e of their own nature
-t'ley were only accounted Tmsber-Trefs, and fit for Buiiding, But
^FSailows, \A illows. Maples, and the like, although they be above
^twenty years growth^ yet Tithes thereof 4>3all be paid. (/) Oi(f)^^^'^-
■*<to£her Trees of the age of twer^ry yearsgrowta or up wards,which ^""'j-Ytd *"^
are Timber-Trees^ Tithes fhall not be paidj but of Sjha C^sdtta & j^o
i Under- woods, Tithes (hall be paid, but not of great Tr«^ by Sra- {g) Sx. 45-. Ed,
Tute. (g) In a Prohibition the QuefWon wafi,whetiher Trees which 3 cap. 3.
were above the' age of 20 years growth become rotten, and be cut "' H. 4. ?p.
down for Fewel, ihall pay Tithe or not. It was the Opinion of the .^;°uJiV ^°*£/;
Courtjthat they fhall not pay Tithes,farthai Titles ace payable for c. B.R<7?«f &*
• 'A\\'mcr^4.kj aBdnotfora.decrcafe;-and being p<iwiledged in -regard PareJo7i'sC.
of their high nature,thls PrtviJedge fhajl not be loft in regard of its Goldesb. 145-.
• ^ecreafe. '(h) So KTipther-Trees become Jrida, Sicea^ ^c. yet be- ^^^ ^°- ^ '; P^^-
caiile fomtrmes it was an Inheritance, which was dikiharged of '' p^/g^j^.
Tithes, although it now become Dotard, Tithe fhall not be paid of c^, j^r'New-
the fame; for the tonality remaineth, though the eftate of the Tree ?««?A Cafe,
be altered, (i) If a Tree under the growth of a,o years be Top'd, Godb. 17;. ac,
and the Body thereof fufered to -grow till it be pafl ^that age, ^"^'^^- ^- ^^'^'
and afterwards the Boughs 'being grown out again ;are Top'd, ^'^^.""^^^^
^nd Lop'd again , Tithes thereofflwU =not be paid , although Cro.i.par. 10 e.
that
442 ^/ Tithes.
that the Tree was not Priviledg'd at the firft cutting; which was
ajv.Biownl. the Opinion of the whole Court of Common- Pleas, (k) Such
u/11'e6.\. Timber-Trees are in Law known by the name of Great Trees, (/)
and the Rook and Gro(s woods ( m).
J o Ed. y . Trades and labours pay fbmc Tithe by ufage in the nature of Per-
(m) Piowd (onal Tithes; and fo Carpenters, Mafbns, &c, and all Haidicraf: s-
♦7®' men have paid Tithe. There was a Parfon in Brifloll that fued an
Innkeeper there for the Tithes of the profits of his Kitchin, Stable,
• and Wine-cellar; in a Prohibition moved for by 2c/a'erfo», the Cafe
.appeared to be this; The Defendant being Parfon of a Parifli in
Mich. 1 1. Jic. Bn^oli did Libel in the Ecclefiaftlcal Court againfl the Plaintiff,
B. R.Dolej being an Innkeeper of the Bear in Brifioly to have Tithes of the Pro-
Bulilr. par.* 2. ^^^ ^J ^*"^ made, of the Kitchin, Stable, and Wine-cellar, and ftya
in his Libel there, that he made great gain felling of his Beer
(having bought it for 5-00/. and fold the fame for 1000/.) and
fo Llbells for the third part of the Profits of the fame, and fets
forth in his Libel, that this is due unto \\\mfer Commumm Legem
AngUa \ and {ti^ forth in his Libel, that Negctiandc and Traji-
<:ando, he doth bargain and fell Beer in his Inn for 1 000 /. which
he bought for 5-00 /. and gained in his Sale 300/. and better, of
which gain he ought to have Tithe. Tel'verton moved (or a Prohi-
bition, fetting all this matter forth in his Suggeftion ; and further
(hewed, that the Defendant had yearly of the Plaintiff 40 /. at
the leaft. Doderidg€]uAkey the Defendant would have Tithe, as
I think, alfb of the Kitchin- fluff. Clench Clerk of the Papers in-
formed the Court, that there was a Parfon, who Libelled for
Tithes of the gains of l o /. for an 1 00 /. put out at Intereft, and
a Prohibition was granted: In this principal Cafe, by the Rule of
the Court a Prohibition was awarded.
'TranfaBion differs from Comfojition only in this, that TranfaBion .
h ■xa Agreement, touching Tithes, upon things litigious and doubt«
fill; the other is Frank, gratuitous and voluntary, of things not
contended for. Sec Compojition.
Trtble Damages may be had in an AiStion grounded upon the
Statute of X Ed. 6. for not fetting forth of Tithes; which Action
is to be fued In the Temporal Courts.
Trees «f all forts regularly and generally ( except Timber-
Trees, as aforefaid) Root and Branch, Body, Bark, and Fruit, ufed
or fold by the Owner, are Tithable. Tithes fhall be paid of Hafej,
Willows, Hollcy , Alder, and Maple, although above twenty years
growth. MicL 5:. Jac. B, Refblved, and Confultation granted ac-
cordingly. So that Trees of all kinds, not apt for Timber, though
exceeding io years growth, nor ever cut before, may be Tithable.
And all Itrtes under the notipn oi Sylva Caduazioxtizidiy under-
woods,
Qf Tithes, . 4^3
Woods and Coppices felled and preferved to gVow again are Tith- ~
able to the Parfon, when the Owner takes his Nine parts. But
Trees cut only for Mounds, Plow-Gear, Hedging, Fencbg, FeweL
for maintenance of the Plough or Pail, be it Underwoods of Cop-
pices, Parings of Fruit-trees, or the like, are not Tithable •, but
Frees bearing Fruit of all forts, are Tithable in there Annual in-
Tenhof the Fruit Oial be fct out and delivered, when they are
newly gathered •, for the omilllon whereof, if lofs come to the
Parfon, the Owner is chargeable to him in the Treble Dammagcs.
If a man pay Tithesfor the Fruit of Trees,and after cut down the
feme Trees,and make them into Billets and Faggots,and fell them,
h€ (hall not pay Tithes for the Billets and Faggots, for that it is not
aiiy new increafe. C.^, Magna Ghana ^52. 621, If Trees be
^ell d, no Tithes fhall be paid of the Roots. Coke, Pafcbip Eliz,,
B,R. iior of the young Sprouts, that grow of fuch ancient Stock.
L? J'^'^-B-R' Stawpe & Clinton, Roll.R'ep. And as Fruit-Trees
pay Tithes in their Fruit, fo alfo may young Trees, which as yet
bear no Fruit, pay Tithes in another kind , for where a Parfon
Libelled m the Eccleliaftical Court for the Tithes of young Trees
p anted m a Nurfcry, upon purpofe to be rooted up,and fold to be
planted in other Parifhes : The Queftion'was, Whether Tithes
Ihould be paid for them > It was faid, they were of the nature of
the Land, and Tithes fhould not be paid of them, no more than
of the Mines of Coles, or Stones digged ; or for Trees fpent in
Fewel in the Houfe. But it was the Ophiion of the whole Court, ,
Thatforafmuch as he made a profit of fuch young Trees, Tithes y'^ "!"» '*
thereof jhould be paid, when they are digged up and fold into g"L and ^i-
another Parilh, as well as of Corn and Garrets, or other things bom's dfc.
of like nature (n). Cro.i.par.379.
Note by the Jufiices, If one cut Trees which are or may be Tim-
ber,although they be under the age of 20 years no Tithes are due i ^^'^^' ^ ^''
and fo it IS of new Germins growing under that age. And where R^p par °°''
m a Prohibition, for that it was Libelled in the Ecelefiailical Court ^'^ ' '
for Tithes of Timber-Jrm, the Defendant faid, The rrm were
long fince anda,mortua,& futrida : It was the opinon of the ^-^^andBdW-
JufticeSjThasno Tithes (hould be paid of thofc Treesy for being ft'* ^J^,
above the growth of 20 years, they were difcharged of Tithes. ' ^
Alio m Brook and Rogers Cafe, where a Parfon fued in the Ecclefi-
aftical Court for the Tithes of the Boughs of Trees, above the age
of 20 years growth, and the Defendant prayed a Prohibition, and
Hiewed that the Trees were arida,Jicca,& in culminibm fvitrida \ Cro.par.2o
Jt was held by the better Opinion, that Tithes (hould not be paid
of them.
"^^>W'
yy
AA4 Of Tithes,
In an Adion upon the Cafe : Declared, whereas by the Statutes
of 45 Ed.-^.caf.^. Tithes ought not to be paid for Grofs Trees:
That file had cut down fuch Timber-Trees, being above the growth
The Lady m- of twenty years, and that the Defendant as Parfon fued her for
urhoHii and Tithes of them againft the Statute i upon which it was demurred.
b-jW^'s Cafe, gefolved by the whole Court, That the Adion did not lie s for
ro. par. j. ^^^^^ ^^^^j ^^ pm-,if}^ed for fuing in the Ecclefiaftical Court for any
matter which is properly demandable there, although perhaps he
hath no caufeof Action: But if he fues in the Eccleliaftical Court
for matter, which appears by his Libel is not fuable there, nor the
Court hath Jurifdidtion thereof j there an Adlion upon the Cafe
lieth.
Turkeys : Tithes fhall not be paid of them, nor their Eggs,
(d) mughm ?«^"^ Fera natura (o).
and Vrincfs Turves ufed for Fuel or Firing, do pay Tithe, and are Tithable
Cafe.Mor.Rep. 35 Predial Tithes •, yet held that Tithes fliall not be paid thereof,
Hill. I ^ Jac* B.R. -per Houghton. Hill. 1 1 Jac. B.R. ^er Cur,
(*) Adjudg Tile-Stones or Brick-Tile are not Tithable C"^).
Mich. 1 9 Eliz. Tythes or Tithes are a Tenth, or otherwife a certain part or por-
B. R. & Pafch. tion of the Fruit or lawful Increafe of the Earth, Bealls, or Mens
34 E.liz.. C. B. Labour and Induftry •, . and are payable by every perfon having
Li^^and Wit s fi^jj^gg J ithable, that cannot ihevr a fpecial Exemption, either by
Compofition, Cuftom, Prefcription, Priviledge, or fome Kdi of
Parliament •■> And they are to be paid without any Diminution "> for
which reafon the Owners of things Tithable ought not to have the
Nine parts, till the Tenth be hrll: fevered there-from. And on the
other iidejthe Tithe is in no cafe to be taken by the Parfon or Vicar,
before the fame be fevered from the Nine parts. The Parfon de
mero 'Jure is to have all the Tithes, if there be no Endowment of
Cp} 20 Eliz. ^^ Vicarage Cp) •, and a Vicar cannot have Tithes, but by Gift,
B. R. in M\hU Compofition, or Prefcription, for that all Tithes de jure do belong
the Vicar of to the Parfon (^). In Suit for Tithes it is not necelTary to demand
Godb^?^*^' ^^^ ^^^y ^^^"^ ^^^ ^^"'^ ^^^y ^^ uncertain. Mich. 1 6 Jac. B.R. Cafe
(q) Pafch." 1 5 "Pemberton and Shelton, Roll.Ref. If Tithes be payable by one who
Car. B. R. dies before he pay it, it muft be paid by his Executor, if he hath
Marfh. 11. AJJets. But if the Parilhioner fetteth forth his Tithes, and they
Hand upon the Land two or three days, and afterwards he taketh
or carrieth them away ; this is not a fetting forth of his Tithes
(r) Adjudg. 10 within the Statute of 2 Ed, 6. {r). But if the Parfon or Vicar
Car. \nAndir- (hall fuffer his Tithes (being fevered) to lie long upon the Land to
ion s Cafe. ^j^^ prejudice of the Owner of the Ground,he may have his A<li'ioa
0) Ley. 70. of the Cafe (s). And whoever taketh away the Tithes, not ha-
ving right thereto, is a TrefpafTer. Alfo an Adfion lieth againft a
Difteiforfor the Tithes: or if one cut them, and another carrieth
them.
Of Tithes, 445
them away, an Adion lieth againft either of them (t). And al-
though in the Eccleliaftical Courts no Plea is allowed in Difcharge (^^ ^^^ch. i$
oiTithesC«)-, yetLawds in the hands of Ecclefiaftical perfons ^u^'^i^f^?
may be difcharged of Tithes, and now fince the Statute of 3 1 H. (u) br. & Stu.
8. in the hands of the Kings Patentees alfo, by Sufpenfion, Privi- i2 7.&lo8Ed.
ledge, or Unity (ly). And llnce in the Ecclefiaftical Courts no 4-1 4- ...
PleaCasaforefaidjis allowed in Difcharge, it is nothing ftrange Sr^/S,
that the Common Law holds, that the Court Spiritual hath not cap.27. p.235.
Jurifdidion in matter of Tithes, where the Prefer! ption is de non
Decimanclo'i other wife, wh.tK\i\sdemodo Decimandi {x). The C^) Yelv.79.2.
manner of righr Tithing is regularly thus, 'viz,. That Tithes
and all other Church-Duties, (hall be yielded and paid according
to the Ufage and Cuitom of the place, where they are paid :
And of Predial Tithes, the Tenth is to be fet apart from the Nine
parts in the place where they grow, before the faid Nine parts are
carried away •, which Separation from the Nine parts is to be
done in prefence of the Parfons Servant, upon feafonable Notice
given to the Parfon by the Parilhioner \ and the Parfon is to
have reafonable time to take away his Tithe (ss). And as for ^2 Co*7'^dw
the Small Tithes, fuch as Plants, Herbs, Seed of Woad, Flax, laft.'^io.
Hemp, &c. they arc Tithable in kind, if not Compounded for.
And Perfonal Tithes, fuch as are for Profit made by Trade and
Manual Occupations (except Common Labourers) are to be paid,
as they were ufed to be paid forty years before the Statute of
2 Ed. 6, and as of right they ought to be paid, as at or before
Eafler fome fmall Sum of Mony, according to the Cuftom of the
place ; but without a Cuftom nothing to be paid {a). The Tithes (-^^By 3 Judg.
of one thing only cannot be in fatisfadtion of Tithes of the fame, lyjac. B.R. ,
and other things of another kind {b). Nor is Tithe twice payable (^) f^'^r^-
of one thing in one and the fame year i Therefore if a Parfon Ca(eo2§,
hath Tithe-Fruit of a Tree felled the fame year, and made into
Billets or Faggots, he (hall not have Tithe thereof Nor are Tithes r ,
payable by any, but fuch as have a Property in the thing Tithed,
therefore they are not payable of things Stollen i nor (hall things
metrly for Pleafure pay Tithes, nor the things that are in no mans
property , only the King (hall have the Tithes arifing out of
Ground not in anyParilh. And if Tithe be paid to one that comes
into the place by Simony, it is at his own peril, if after-
wards he be fovced to pay it again (c). Where Sale is or may be ^^^ p^Q^. i6Z.
made of a thing Tithable, the equallert way is to let the Par-
fon or Vicar have the Tenth Peny made of the thing fold i
And although Tithe is not payable to the Simonaick Parfon, yet
an Incumbent wrongfully Collated by the Bifhop, may be fuch
a perfon as is capable of Tithes, and may Sue for the fame {d). {d) Hob. 3102.
Y y y 2 In
44^ Of Tithes,
In Love and Vigot*s Cafe it was faid, That if a LeiTee for years be
Sued in the Spiritual Court for Tithes, he in the Reverfion may
have a Prohibition,P^ycj&.2$> E/.B.R.Crc.R^p.p^r.i. And a Lay-man
> lawfully luterefted in Tithes, being diffeifed thereof, or wronged
therein, may have his Remedy for them in the King's Temporal
Courts. This takes not away the ordinary Remedy for them in the
Ecclefiaftical Court •, the Law C^s to that) being as it was before
(I) Dyer 133. the Statutes {e). Like wife, for refufal to pay Tithes, or not fettiiig
Co, 11.13. fQ^f^ Predial Tithes, the Parfon may Libel in the Ecclefiaftical
Court, or he or other Proprietor thereof may Sue at the Common
Law, or for the Subtradtion thereof, at their Eledion, and recover
the Treble value of the Tithes (/*). Yet where only the Right of
20 El. I'oad'i '^^^^^ ^orh come in debate, and not the Right of Patronage, in
Cafe. St. » Ed. ^^^^ ^^^e it hath been held, That the Eccleliaftical, not the Tempo-
6. vid.Co. 2. ral Jurifdidion, (hall take cognizance thereof i yea, though both
^^f"^° ^f r^R* P^'^^^^s '^^^"^ ^y Prefcription, which in it felf isa matter Triable at
Ron 609. Bi' ' ^^^ Common Law (g ). But where the parties Litigant are both
dell'i Cai'e ace. Eccleliaftical perfons, and the Claim of the one be for an Annual
C^; 22 Ed. 4. Penlion out of the Parfonage of the other, although he claim the
vt R^ R*'*A^ ^^^^ ^^ Temporal grounds, viz>. by Prefcription and Real Com-
iudg.acc. as H. P^^'^'^"^ he hath his Eledion to fue for the fame either in the Ec-
649- ace. ° clefiaftical,or in the Temporal Court : And by the Statute of 34 H,
8.C. 1 6. Ecclefiaftical perfons may fue for Peniions in the Ecclefia-
ftical Court •, but if he brings a Writ of Annuity for the fame, and
declares upon the Prefcription, he hath then determined his Ele-
ction, that if afterwards he fue for his Annuity in the Ecclefiaftical
Qh) Hagh.Par- Court, a Prohibition will lie (h). If Suit be in the Ecclefiaftical
pwjLaw, C.27. Court betwixt Parfon and Vicar for Tithes, Prohibition hath al-
p. 292. yf2^y^ been daiied,if there be not other matter determinable by the
Common Law. Micb.iSJac.B.R. RoU.Rep. But where the Que-
ftion is only betwixt the Parfon and the Vicar, it is to be decided
(/)Mor.|i2<^7. in. the Ecclefiattical Court (i). Yet it is faid. That a Real Con-
tract, though made between Ecclefiaftical perfons and of Ecclefia-
(^ ) Marfh. 87. ^*^^' things, is only cognizable at the Common-Law (k). But if
a Cuftdm of Tithing be agreed by and between both parties, it
may be fued for in the Spiritual Court j but if the Cuftom be denied,
(/) Hob. 247. ^ Prohibition may be awardedjtill it be tried at Common Law (I),
But whae there is a Modus Decimandi^ be it of Lands, or a cer-
tain Annual Sum of Mony, or other profit time out of mind given
to the Parfon and his Succeflbrs, in full difcharge of all Tithes in
kind, in fuch a place certain ^ if this Sum be not paid, yet may not
the Parfon fue for Tithe in kind, but for the Mony in the Ecclefi-
(m) Co. Seleft ^^^^^^ Court s But yet the Modus it felf is Triable at the Com-
Cafes4o.46. tnon Law, and not in the Spiritual Court (w^. Likewife after
that
Of Tithes. 447
that the Tithes are carried away out of the Ground, it hath been
held, Suit cannot then be commenced for them in the Ecclefiaftical
Court, becaufe they are then become Lay-Chattels, and the Pro-
perty thereof is altered (n). And for the not fttting forth of (n) Tr 12 Jac.
Tithes, not only the Parfon or Redior, but alfo the Farmer of the E.R. Cafc Key-
Rediory may fue upon the Statute (0). The bare fevering or fetting ^^^^^ ^ Hayts.
forth of Tithes, doth not make them to become Lay-Chattels, but 28 Ed a^i
the carrying them away cut of the Ground doth i And therefore if by Fhc'hden.
Tithes be fevered, and fct forth, and afterwards the Parfon leafe Co. n. par. Dr.
out the Parfonage, not mentioning the Tithes, the Tithes fet forth ^'''^«f'sCafea
(hall pafs; for although they be divided and fevered, yet they are ^^jj. ^J^*
as yet fpiritual Duties of the Parfonage: But if the Tithes be car-
ried into the Barn, and afterwards the Parfon leafeth out his Par-
fonage, with all ProiitSj&c. thofe Tithes (hall not pafs to the Leflee,
for that now they are become Lay-Chattels (p). It was agreed ^p^ f^j^^ y^
clearly in Cannens Cafe, That if a Parifliioner (ever his Hay, and it c. B. smith's"'
be made into Reeks or Cocks, and after fell it,the Parfon cannot fue Cafe Adjudg. .
the Vendee for the Tithes thereof, but him that fevered it, and on
this matter Prohibition was granted, H,i6 Jac.B.R, RolI.Rep. If
a Parifhioner doth not fet forth his Tithes, or fubtradlreth them af- '
ter they be once fet forth, the Parfon may Libel againft him in the
Spiritual Court > or elfe by the Statute of 2 Ed.6. cap. 13. the Par-
fon or other Proprietor of the Tithes may have their Action in the
king's Temporal Courts, for the not fetting forth or fubtrading
of them at their Eledlion, and (hall recover the Treble value of the
Tithes in an Adtion of Debt : for although the Treble value be
not given to the Parfon, or other Proprietor of the Tithes, by any
exprefs words of the Statute ; yet forafmuch as he is the party
grieved, and hath the Right of the Tithes in him,the Treble value
is given to him« For wherefocver a Statute giveth a Forfeiture or
penalty againft any one, who wrongfully dctaineth or difpoffef-
feth another of his Right or Interef^ ; in that Cafe he that hath
the wrong, (hall have the forfeiture or penalty, and fhall have his
Ad^ion at the Common Law for the fame,or he may fue in the Ec-
clefia(^ical Court for the fame (^). But in his h^lon at Common (?) Micap EL
Law it feems,he fhall recover no Cofts, as hath been Adjudged (r). ^^-^^ ^'^
But if the Parfon or other Proprietor will fue in the Ecclefiafi:ical par.loh. 6$@.'
Court for the fubtradion of the Tithes, he fhall recover there CO 43 El.C.B,
but the double value of them i becaufe in that Court he (hall re- Sr. May I Finches
cover the Tithes themfelves, which is equivalent to the Treble va- ^Jj ' ^j g *
lue at the Common Law (s). In another Cafe, where Debt upon ^ot. 699', Be-
the Statute of 2 Ed. 6. was brought, for not fetting forth of diW% Cafe ace.
Tithes s the Plaintiff fhcwed, Tiiat Two parts of the Tithes did i^) Co. 2. par.
appertain to the R^edory, and a Third part to the Vicarage, and I°(t.65i.a»
tint
448 Of Tithes.
that he had a Leafe for years of the Redory, and another Leafe of
the Vicarage : And for not fetting forth of the Tithes he demanded
•the Treble value : upon Non Debet ^ it being found for the Plaintiff,
it was urged in ftay of Judgment, that he ought to have brought
feveral Ad:ions, being grounded upon feveral Leafes, as his Title is
feveral. But it was Refolved, That the Adion was well brought,
in regard he had both Titles in him ; and the Adion is brought
it) Hil. 2 ]ac; upon the wrong, becaufe he did not fet out the Tithes (t). Again,
B. R. Sr. Rich, in Debt for not letting forth of Tithes upon the Statute of 2 Ed.6,
^KV^J!^f * The Cafe was, Corn was growing upon the Glebe- Lands of the
Cro. a.parf 58. Vicar jwhich was difcharged of Tithes being in his own ufe j It hap-
pened that the Vicar died before the Tithe was fevered, and his
Executors did cut and carry away the Corn i and he that had the
Parfbnage appropriate brought the Adionj The Counfel of the
Defendant prayed the Opinion of the Court, whether he might
plead Nd debet : But the Court refufed to deliver their Opinion
f )^t T "^ ^^' becaufe it hanged in Suit before them (//). In the Cafe of
BR. Hor\ and Mount ford againlt Sidley it was faid. That where Tithes are fet out,
€011071"% Cafe the Parfbn hath a liberty for a convenient time to come and carry
•Hob. 387. them away : And this convenience of Time is triable by a Jury v
if he exceed this, he (hall be fubjed: to an Adion, and then by
Judgment of Law he fhall be taken to be a Trefpaffer ab initio \
Otherwife, it (liall be of a Licenfe in Fad given to the Parfon him-
felf. And it was holden by the Court, if the Corn had continued
?*R R f * over-long, his Remedy had been by Adion upon the Cafe (^w),
■ Mountford and And as a Parfon ought to have a convenient time to carry away his
Staylie'iCik, TitheSjfo likewife he ought to have for that end free ingrcfs,egrefs,
Bulftr.g.par. and regrefs, to, through, and from the Land where the Tithes arc,
?9^. 337- vid. ^vhcrein ifhe meet with any obftrudion, he ought to fee how he
B. R.* wifman ^^^^ ^"*^ ^^^^^ ^^ Adion i for in a Cafe, where a Parfon Libe'lledji
& Denhm% C. for Tithes in the Ecclefialiical Court,and fet forth,That the Tkhes
Godb. 329^ were let forth, and that the Defendant did hinder him and ftop
him from carrying them away : but becaufe he did not Sue there
upon the Statute of 2 Ed. 6. for he did not mention the Double
value as he ought, and it was agreed by all the Juftices, he ought
to have done \ nor mention the Statute, as he ought alfo to have
?R^Ad^ ?c 1 '^one i a Prohibition in that Cafe was awarded (x). The Grant of
Hugh. Abr. * ^ Tithe for life to begin at a day to come, is not %QO^.Telven.\^ i .
Difmes,Seit.4. If a man will let a Leafe of his Tithes, the Leafe muft be by Deed,
§. ?• and not by word only "5 therefore, if a Parfon doth Demife his Re-
dory for years, the Tithes will pafs inclufive^ although the Leafe
<>) Tr«_ 2^ EI. jjg i^y ^Qj(^ Qj-jjy ^ i^m jf tj^g Parfon Leale his Tithes alone, they
p'^r Jjf'sCafe. ^♦'•^^ "'^^ P*^^^* \!i\-^<.i'i the fame be by Deed or Writing {y). Yet the
'Adjudg, ace P^rfon may Demife his Tithes to the owner of the Landj for a year
Of Tithes. j^^p
by word only, as hath been agreed by all the Juftices (z,)--, but to a
Stranger he cannot Dcmife them, otherwife than by Deed ■■> And ^L^' ^ ^^^'
although Tithes will (as aforefaid) pafs by Contrad to the Owner f^tlholfTczt
of the Soil, yet may the Parfon fue the Owner for Tithes in kind Rot. 175.
in the Spiritual Court, and fas it hath been holdenj the Owner by Codb.375,,
reafon of the Contradi, fhallnot have a Prohibition (a). In which ^ >, «• .
cafe the owner of the Soil may fue the Parfon upon the Contrad in eg In eroft's
the Temporal Court, and recover as much in Damages, but then Cafe,
in his Pleading he muft not declare of a Verbal Con trad, but muft
fet forth the fame to have been made hi Writing, and fo it hath
been Adjudged f^J. And in the Lord Shandois Cafe itwasholden
by theJCourt,That a Suggeftion of an Agreement between him and (b) Mic. 7 Jac.
the Parfon, in conhderation of a certain Sum to be yearly paid to ^: l^*'" ^^a'-'
the Parfon,during their Joint-Lives,and his continuing Parfon, that "''^^^*^"^'-
hisMeffuage and Lands in the Parilh of D.and the Tenants thereof,
ftiould be difcharged from the payment of Tithes thereof, fliewing^
that the faid yearly Sum was paid accordingly, and that notwith-
fianding the Defendant fued. the Plaintiff, being his Farmer, for
Tithes : In this Cafe it was held,That this was not a fufficient Sur-
mife to maintain a Prohibition i Vox an Agreement to be difcharged
from Tithes, may be a year by word i but to have fuch an Agree-
ment for life or years,cannot be without Deed {c). Likewife in ^n ^^ , jyj
BjeBione Firma brought of a Leafe of Tithes, the Plantiff did not b.R. in Hams
ftiew, that the Leafe was by Deed h and becaufe Tithes cannot pafs & Brayfield\ •
without Deed, after a Verdidl found for the Plaintiff , Itwas ruled Cafe. Cro. 2.
to be ill, and adjudged for the Defendant (d). To conclude, In the J^')^' IJ* p^^'
19 El. B.R. it was debated, Whether Tithes were Jure Diifino^ or tman\C3(£%
by the Confiitution of men only ? The Judges were all it feeems Rolis & Roll's
of Opinion,That they were due as well by Gonfiitution of Kings Cafe.B.R.Ad-
as by the Law of God (e). And therewith doth Dr^ Stu. agree, J"j^p^^' ^f^'
166. if the Queftion be de Quota farte : For there it is held, that b.r. iothe and
the 60 parf is due only by mans La w^ And the opinion oiGerfon the crom^toTCi Caf.
Divine,is cited in his Treatire,Entituled Regula Morales^whtie it is Cro.a.pa. (5 13,
{liid^Solutio Decimarum S acer dot thus efi jure Divino^ejuatem/s inde ^'^ '^ ^'* ^•^*
fufiententur •> fed quoad banc quam tllam fartern ajjignare^ aut ^^ (t\-c^ j^ e
alios reditus commutare^'PeJitivi jurii eft. And eirewhere,JVo» -uo^^?- ,55^ %c ig El.'
turfortioCur'atisDeciynafars^imoefiinterdum'mcefima^auttuce- Dyer in B. R.
ftma (f). And in Henpes C^(e^Co.p.'part. it is faid, That Tithes, Adjud. vid.
QuatenusTithes^w^re Spiritual things,and due ex jure Divino,znd V^^f ^ 1'
were not accounted as Temporal Inheritances C^). Kence it is, « jj 12.''^*
That where a Parfon leafed all his Glebe- LandSjWith all Profits and (g} Henftoe's
Commodities, rendring 13 s. ^d. fro omnibus exaBionihm d^ Cafe.Co.s.par<.
demandfsh and afterwards Libelled in tlie Spiritual Court againfl
hisLclTees for the Tithes thereof. It was the Opinion of the Court,
That
450 Of Tithes.
That Tithes are not things ifluing out of Lands, nor any Rent or
duty, but Spiritual i and if the Parfon doth Releafe to hisParifhi-
oners, all Demands in his Lands, his Tithes thereby are not ex-
Yfc)Tr. gi EI. tindt i and therefore a Confultation was granted (h). And in the
'B.R. stytt and like cafe it hath been Adjudged, That the Leflfee (hould pay Tithes
Mill(r\ Cafe, ^q jj-j^ parfon, for that they are jure Di'vino due, and cannot be in-
0)*^2^^YvL. eluded in Rent (i).
!n BibingtorCi If a Parilhioner fets forth his Tithes, and fever the Tenth part
Cafe. from the Nine parts jultly and truly, although he doth not give
perfonal notice to the Parfon, nor general notice in the Church (5f
the time of fetting forth his Tithes, whereby the Parfon might be
prefent at the fetting of them forth,and to fee that it be juftly done',
Mich. 1? Car. yet is it a good fetting forth of the Tithes, as in the Cafe between
B^R.-cbd/e aod Qfj^^^ ^^j Warejiw a Writ of Error upon a Judgment in an Adfioii
InrraiurTdn. upon the Cafe, againd: the Parfon,for leaving his Tithe of Hay upon
ig Car. Rot. jthe Parifhioners ground after notice of fetting them forth, where-
564. by the Parilhioner loft his Grafs there. But it was not alledged,
that the Parfon had notice of the time of fetting them forth i and
yet the Court affirmed the Judgment againft the Parfon.
.<4 .Parfon in Conlideration of 20 /.yearly, promifed to 5.that B,
fhould pay no Tithe for a certain Wood,per ^arol \ and in Confide-
ration thereof, B.promifed to pay the 20 /. yearly, and this Agree-
ment was during their Lives. B. made a Leafe at Will of the
Trio. 2t jac. Wood-, the LeiTee had a Prohibition againft him, for the Agree-
^* f '/ '^/" "^^"^ ^^^ ^^^^ ' ^"^ J^yj^yn demanded,what Remedy againft the
: Rol.' Rep.' Leflee for the 20 s. Doderidge, Nonei but he fhall have an Adion
par. 3. on the Cafe againft B. or his Executors \ but the Leftec for years
may have an A<ftion againft the Parfon,if he Sue him in the Ecclefi-
aftical Court. For the' Cafe was, There was an agreement fer parol
made between 5'.Parfon, and B. the Pariftiioner : B. promifed to S.
for himfelf, his Executors and Affigns, to pay him Ten Load of
Wood, and 10 s. for the Tithe of a Wood during the life of 5".
And S. promifed not to fue him, 8cc. for any other Tithe. B. dies,
his Executor made a Leafe at Will of the Wood h the Queftion is,
> .1(3 : Whether the Tenant at Will, may take his Adtion againft the Par-
28 .i^fon who fued him for other Tithes, &c.
In a Prohibiti(^ againft a Parfon who fued for Tithes,it was Sur-
SavilSc mods ^^^^^-T^^^ the Clerk of the Parifti and his Predeceflbrs, AlFiftants
Cafe. Cro. to the Minifter, had ufed to have five ftiillings for the Tithe of the
par. I. Lands, where, &c. It was the Opinion of the Court, That if this
Special matter be ftiewed in the Surmi{c,it might perhaps be good
by reafon of long continuance i but they held that by Common in*
tendment. Tithes are not payable to a Parifh-Clerk, and he is no
party in whom a prefcription can be alledged, wherefore a Conful'
tatiou was awarded. The
Of Tithes, 451
The Parfon oiT. fued for Tithe- Wood of the Park of T. for a
^Prohibition it was furmiied. That he and all thofe, &c. time out
of mind, &c. had ufed to pay tq^the Vicar of T. ten fhillings year- sherbunt'i
ly for all Tithes of Wood growing in the place, and the proof was, Cafe.
That he paid ten fhillings for difcharge of Tithe- Wood in the ^^^' P"* J*
Park and two other places : the Prohibition was denied,and a Con-
fultatlon awarded, becaufc the right of Tithes between the Parfon
and the Vicar came in queftion, and becaufe the party failed in the
proof of his Prefcription.
In a Prohibition to ftay Suit for Tithes, furmizing that he (et
forth his Tithes, and for fome reafonable caufe he detained part of
them : And the Parfon lued them in the Ecclefiaftical Court i upon Lf'i\ aofl
which it it was demurred j becaufe by the fetting forth they were ^'^"^^^ ^^^^'
Lay-Cliattels. But the Court held, That the Prohibition did not ^"' '*
liei for againft the party himfelf, who fetteth forth his Tithes, a
Suit is maintainable in the Ecclefiaftical Court, if he detains them,
although he might have his Remedy for them at the Common
Law : Otherwife, if they were taken away by a Stranger after
they were kt forth.
For a Prohibition it Was furmized. That he had ufed to pay the
Tenth ftieaf of Corn, the Tenth Cock of Hay, the Tenth Fleece Xi«-sQfc.
of Wool (and fo the like; in fatisfadion of all Hay, Corn, Cattel, Cro. par. i. '
&c. And it was held, that it was no fufficient Surmize for a Pro-
hibition, becaufe that which he ufed to pay is but the Tenth in
kind.
In Sands and Pruries Cafe the queftion was. Whether Tithes Cro. Ibid,
were grantable by Copy : It was Objected they could not, becaufc
it is againft the nature of Tithes, whereof none could have Pro-
perty before the Council of Lateran^ and it was impollible there
ihould be any Cuftom to demife them by Copy^ when none had in-
tereft in them, and they cannot be parcel of a Mannor, for they arc
of feveral natures, though united in one mans hands ; But by the
Court Refolved, they might be granted by Copy^ fo it had been
time out of mind.
A Pariftiioner fevered hisTythes, but being in aCloie, the Gate B/dr^^f //'s Cafe,
was locked, (o as the Parfon could not come at them : The quefti- Cro. par. 1,
on was. Whether the Gate were locked or open, and thereupon a
Prohibition brought j The Court was of Opinion, that although
the Tithes were fevered, yet they are Suable in the Ecclefiaftical
Court, and then the other is but a confequent thereof, and Triable
there, and the Prohibition denied.
hiSharin^ton and Fleetwood's Cafe it was Refolved, That if a Mora'i Rep,
Parfon Libels for Tithes^ and a Prohibition is granted, and after he
Libelleth for the Tithes of another year, the firft Suit not being
Z 2 z deter-
452 Of Tithes,
determined, an Attachment upon the Prohibition lieth againft
Moor^i Rep. him. And in the Cafe between Talent ire and Dentcn, where the «
Bifhop of Carlijle being feized in fee ofTithe^m right of his Bifhop-
rick, made a Leafe of them for Three Lives, rendring the ancient
Rent, the Tithes having been ufually demifed for the fame Rent ;
It was Re{blved,That the Leafc was not good againft his SuccelTor,
becaufe he had not remedy for the Rent by Diftrefs or Adion of
Debt : Otherwife it had been, ifonly aLcafe for years, for there
Debt lieth for the Rent.
...» ^ r In Leigh and fVood^s Cafe it was Refolved, That if the Owner
I2IQ." ' * ^^^ ^^^^^ his Tit he, znd a Stranger takes them, no Suit fhall be for
the fame in the Eccleliaftical Court i but if the Owner himfelf, af-
ter he hath once fet forth his Tithes, takes them away again, the
Parfbn may fue him in the Eccleliaftical Court for the Tithes.
5. Libelled in the Ecclefiaftical Court againft H. for Subtradtion
of Tithes 't the Defendant there pleaded. That he had divided the
Tithes from the Nine parts. And then the Plaintiff made Additi-
on to the Libel (in nature of a Replication) i/iz,. That the De-
fendant divided the Tithes from the Nine parts, Quo4 fr^cdtB. the
Plaintiff nonfatetur, fed frorfus diffitetur ; yet prefently after the
pretended Divifton, in fraudem Legts, he took and carried away the
Trio. 44 El. fame Tithes, and converted them to his own ufe •, and thereupon
^' ^'^h\ ^'^^ Plaintiff" obtained Sentence in the Ecclefiaftical Court, and to
Co. lib. 12,' ^^'^over the Treble value according to the Statute of 2 "Ed, 6, cap.
13. And thereupon H. made a Surmize, that he had divided his
Tithes, and that the Plaintiff ought to Sue in the Ecclefiaftical
Court for the Double value, and at the Common Law for the Tre-
ble value. But it was Pvefolved by the whole Court, That the faid
Divifton mentioned in the Libel, was not any divilion within the
Statute of 2 Ed.6.c.i^. For that Adt provides, That all the King's
Sub)e(3:s henceforth, (hall truly and juftly without Fraud, divide, fet
out, yield and pay all manner of other Predial Tithes in their pro-
per Land : So as when he divides them to carry them away, he di-
vides them not juftly without fraud •, and therefore the fame is out
of the Statute ■■, and where the words of the Statute [ divide^ fet
cut^C^c.'] their Predial Tithes, &€. and if any Perfbn carry away his
Corn and Hay, and other Predial Tithes, dec And to make an eva-
lion out of thele words [this hivention was devifed'] \ the Owner
ot the Corn by Covin fold his Corn, before Severance, to another,
who as Servant to the Vendee reaped it, and carried it away with-
out any Severance, pretending that neither the Vendor, becaufe he
did not carry them away •, nor the Vendee, becaufe he had no
property in them, ihould be within the Statute. But it was Refol-
vtd, That the Vendor ftiould be charged in that cafe with the pe-
nalty
Of Tithes, 4,55
^ naky of the Statute, for he carried them away, and his fraud or
covm ftiall not help him. Ftd, 8 £^. 3 . ape. p H d,4 1 ^zH6<
But it was refolved, That the Plaintiff could not Sue in the Eccie-
iiaftical Court for the Treble value, but for the Double value he
might.
A Parfon Libels in the Ecclefiaftical Court upon the Statute of Jvhm upon i
2 Ed.6, cap. 13. for Tit/jes. The Cafe was this, The Parilliioner ^'^^^ /''"' ^'^^^
fets them out according to the Statute i but they being fo fet out "" ^J'^l'"^''"* i
he would not fuffer the Parfon to come and take them away,think- conf^tZn
4ng by this means, and this way to avoid the Statute i And upon (hall bt grants
this the Parfon Libels in the Ecclefiaaical Court for thefe Tithes i ^''•
the Defendant there Surmizes, That he did not hinder him from
the having of hisr^V^a^but faitb,Thathe did hinder him in coming
for his Tithes one way ( which was the ufual way) but that he
might have come for them another way : And upon this a Prohi-
bition was prayed, and granted, fuppofing that there was no quefti-
on at all as touching the payment of Tithes, but as touching the
Way to come for them i and upon this whole matter the Parfon
prayed a Confultation,ri6e Ti^hole Court were clear ofOfmionJhdit
fuch a fetting out oiTithes, as the fame appeared here to be in this
Cafe, without fuffering the Parfon to come and take away his
tithes, that this is a fraudulent and no good and fufficient fetting
forth oi Tithes, according to the Statute, and as the Statute doth
require, which ought to be a fruitful and effectual fetting forth of
his Tithes i for in fo doing, he ought to fet forth his Tithes, and
alfo to fuffer the Parfon to come,have, and to take away \i\sTithesy
otherwife, unlefs he do alfo perform this, the fetting out of his ^
Tithes here is to no purpofe for to excufe him. And to the Sur-
rnizeherc made for the Way, The 71^ hole Court were ofOpimon,Thzt A ConfultAiioi
this is no way at all material, and fo without any further motion gtantd*
or Arguments, by the Rule of the Court, a Confultation was grant-
ed. Vtd Bulfir.far. u fol 108, HilL 8 Jac,
Z Z Z 2 V.
454 ^/ T^^^^^^^*
W'
V.
'Enifin, though not Tithable of it felf, yet it may be given as
Modus Decimandi » Ver JJJifas Forefta^ and other Records,
it doth appears that Tithes have been paid^ even of Venifon^ in
divers parts of England.
Vetches^ Tares, and the like, eaten by the Cattel that do the
Husbandry in the fame Pari{h,be they eaten on the Ground or cl(e-
where, are not Tithable, unlefs the Parfon hath a Special Cuftom-
for it. _
Vine is Predial Tithe. Co. Magna Chart a^ ^4 p. ■'-■
Unity of Pofleflion, or Unity of theParfonage and Lands, whicli
-fhould pay Tithes^ in the hands of Religious and Ecclefialiical Per-
fons : By \}\\sUnity of PoffelTion Tithes are not now difcharged in
Right,though in Payment i fo that it is not to be pleaded as a Dif-
ia) Hob. 44. charge of Tithes^ but as a Difcharge of the payment oi Tithes (a),
2^'j. This Unity hath bten often Rcfolved to be a good Difcharge of the
payment of Tithes within the meaning of the Statute of 31 H. 8.
{h') Co. a.par. C^j. Originally this Unity was, where an Abbot ^ Trior ^ &c. time
Inrt .95^. out of mind hath been feiied of Lands in themfel ves Tithable, and
cir/ac/doS. ^^^^ of the Rcarory of that PariOi wherein fuch Lands did lie : So
' that Unity of the Parfonage and Lands, which (hould pay Tithes
by Appropriation or othetvvife, in the hands of Religious and Ec-
clefialHcal Perfons, had difcharged from the payment oi Tithes:
and now fmcc the faid Statute of 31 H.8. fuch an Uw/Vj' of Pofief-
lion in the faid Religious Houfes, and Lands and Perfons, (hall be
a difcharge for the King's Patentee for the Lands that came to the
-Crown by the faid Statute. But then it was Refolved, That fuch
an Unity muft have been Jufia^, Libera^^^qaalis^zndi Perfetua. It
muft have been j^«_/?<i, claimed by Right,by good and lawful Title,
and not by Dilfeitin, or other extortions and unlawful Ads , for
fuch an Unity had not been a good difcharge within the Statute.
2. It muft have been ty^qualis^ that is, there muft have been a Fee-
fimple both in the Lands and in the Tithes^ as well of the Lands
upon which the Tithes are, as of the Parfonage or Redory \ for if.
thofe Religious perfons had held but by Leafe, that had not been
fuch zwUnityzs the Statute intended. 3. It muft have been Libera,
free from the payment of any Tithes in any manner •, for if their
Farmers, Tenants at Will, or Years, had paid any manner ofTtthes
befotetheDiffolution, it may be a fufficient Bar to avoid the Unity
pleaded in difcharge of Tithes. 4. It muft have been Terfetua^
time
Of Tithes, ^55
time out of mind, that fuch Religious Houfes were Endowed,and
fuch Religious perfons had in their hands both the Land and the
Redlory before the memory of man, or as it feems ('according to
the Rules of Common Law) before the firft o{R.i. Difcharged of
Tithes i or if the Appropriation were Ancient, as in the time of
£.d, 4. fuch is faid to be a good difcharge of Tithes, either on the
account of Perpetual Unity or of Prefcription (c). And at this day ^^s §{j. ^;^
fuch an Unity is faid to be a good difcharge of Tithes in the hands veg. Law of
of the King's Patentee, within the Statute of 3 1 i/. 8. (d). There Tithes, ch. 2 1.
may be alfo (as appears in the Common Law) an Unity of Pof- & Hugh. Abr.
felfion, diiferent from the former, which (hall likcwife difcharge g^J' ^^ ^*
from the payment of Tithes j but fuch Difcharge is only pro few- (<<)Co.ii.par.
pore^^ivid therefore though it be an Unity of Poireilion,yet it is not a • 3< PfidU &
Perpetual Unity in the fenfe aforefaid : As if a Parfon of a Church ^^PP***'* ^^^^*
purchafeth a Mannor within his PariOi, by this Purchafe, and Unity
of Poffellion, the Mannor which before was Tithable, is now be-
come Non Decimahilis, becaufe he caiinot pay Tithes to himfelf ^
but if he maketh a Leafe of his Parfonage and Rediory to a Stran-
ger,the Parfon himfelf Ihall pay Tithes of his Mannor to his LelTee i
and fo if the Parfon maketh a Feoffment of his Mannor, the
Feoffee (liall pay Tithe to the Parfon, becaufe Tithes are due by the
Law of God ea Debito^ and cannot be extindl:, into whofe hands
the Lands come, uulefs they come to the hands of the Parfon him^
felf (e), . 0) Mich. 30 H.:
Underwood is Tithable \ and diUnderwaods digged up by the ^* ^^^^ 43.
Roots Tithe fhall be paid \ and h of Hedg-rows (/) •, likewife of ( /") Mich. 1 1
Underwood fold ftanding, tlie Tithe (hall be paid, and that not by ]ac. C. B. Shi-
the Seller, but by the Buyer. But Underwood ufed for fcncmg of ^^^S* ^f^'
Corn or Pafiure pays no Tithe (£), An Action of Trefpafs was ^^ g^ Adjudg!
brought by a Parfon again ft a Vicar for Underwoods^ and each of Hiit & £//«
them did claim the Underwoods by Prefcriptipn as his Tithes, that Cafe.
(although their claim was by Prescription) yet becaufe the right
of the Tithes was in. debate only, the Temporal Court was ouited
of the Jurifdidion of them {h). But if a Parfon or Vicar claim ^^^ 2, gj. ^^
a portion of Tithes by Prefcription only, which is a Temporal 24.
thing, and fueth in the Spiritual Court j it was holden that a Pro-
hibition lieth CO- . 0')29Eliz.B.
; In a Prohibition to Iby proceeding in the Ecclefiaftical -Court, R. by shuit
upon a Libel there by the Parfon for Tithe of Underwood^hy xez- and cUr^
fonof a Prefcription in Non Decimando^ for the Wild.oi Kent^ Mi h *'2Tac
this Wood growing in the Wild of Kem^ Henden moved the Court g^ ^' j^^n\i
for this Prohibitionj for thefe R-eafons, ( i , ) A whole Country ge- vcrf.Bacl^hHTll.
nerally may Prefcribeiw Non Decimando^ in a particular place, and Bulftr. par. 2».
as a whole Country may fo do, by the fiire reafon a particular
perfoii
45^ Of Tithes,
|)crrdn may. A fecond Reafon -, the Statute of 2 Ed.^.capA^. gives
life unto this Prefcription, for this particular place and precind".
Coke Chief Juftice. By Lind'wood^ a whole County may Prcfcribe
in mn Deciniando ■•, and fo is Dr. &Stu. cap.ult.fo.i66.b. But it
is with tliis Provifo/o that there is betides this Maintenance for the
Parfon j otherwilc the fame is not good. The Statute of 2 Ed. 6,
cap.i'^ . aids you not at all in this Cafe, for a private man cannot in
this manner Prefcribe : And to fay, that the Conqueror never con-
«quered this place i this is but Hiftorical and Apocryphal, for
he was Conqueror by Compolition had. It is true, that in former
-time, long fince this place was not Tithable, bccaufe there was no
Woed there but great Timber-trees, which were not Tithable , but
thefe being now cut down, wafted, and deftroyed by the Iron-Mills,
and as in many other places i now this place which was not Tith-
able before, being now Underwood, and converted into Tillage or
-Pafture, is now become Tithable, and Tithe fhall be there paid i
and if Wafte and Barren Ground, for the which no Tithe hath ever
been paid, if the fame be now meliorated and converted into Til-
lage i now by the Common Law Tithes (hall be prefently paid for
thiSjUnlefs the fame be within the Provifo of rhc Stat, of 2 Ed.6, of
Exemption from payment of Ttthes for a certain time after the
melioration of the fame, as appeareth in the Statute, otherwife
Tithes fhall be paid prefently. No Tithes could formerly be paid
here in this place, becau(e there were only great Timber- trees here
■growing i but now clearly they ought to pay Tithes for the Under'
r , .,.: woods^ and this is the only Demand here. The whole Court was
clear of Opinion, That no Prohibition (hould be here granted in
this Cafe, but that Tithe ftiould be paid. Coke^ Will you allow the
Farfon here in this place Tithe-Hay and Corn, and not Tithe-
Wood ? Doderidge^y Lindwood and Dr. ^ Stud, a whole Coun-
ty may be difcharged from payment o{ Tithes i but this at the firft
cf ncceffity ought to have a lawful Commencement by way of
Compofition,or, &c. Coke agreed with him herein, and faid unto
JfljWew, Shew unto us an Ancient Writing, byway of a Compofi-
tion for your Difcharge of payment of Tithes i the Statute of
2 Ed, 6, makes againit you there, though no Tithe was ever paid,
yet upon the melioration of the Land Tithes ihall be paid prefently,
if the Statute had not been made. The Court were all clear of
Opinion againft the granting of a Prohibition, and fo no Prohibi-
. tion awardedo
W.
uj I II foes. Af^j
w.
WAges of Servants ofthe Plough fhall not pay any Tiihe^
as hath been Refolved, ?afch. 14 Jac, B. inter Parfoii
Ellis and Drake ; and Prohibition granted accordingly, although-
the Libel was but for the Tithe of a Third part of their Wao-es^
leaving the reft free i for it was faid, That by the fame reafon fhat
the Cattel of the Plough are free of Tithe^ the Wages ofthe Ser-
vants that follow the Plough are Tithe-free alfo.
Wafie Pafture Lands,if 7/r^ej in kind be paid for Lambs, Calves, 2 H. 4. Rofa .
&c. feeding and couching thereon, Tithes (hall not afterwards in Par, nu. pp.
the fame year be paid for Agiftments on the fame -wafie Paftures,
Wafie Grounds, not certainly known in what Parifh, and Cattel
feeding thereon, the Tithe whereof belongs to the Parfon of the
Parifh wherein the Owner of the Cattel doth dwell. '
Wax of Bees is Tithable by the Tenth weight thereof. Tithes
ought to be paid in kind de jure of Wax and Honey of Bees in
their Hive. Mich. 1 5 Car. B, R. inter Barefoot & Norton^ Ad-
judged in a Prohibition upon a Demurrer, and a Confultation
granted.
Willows^ growing in the foil of a Mannor, felled, are not (as is
faid) Tithable, though itbewafte to fell them {a). No Tithes (fi>Hob. 219.
(hall be paid of JWdlows in a Country where they are ufed for
Timber (b}. Sed 0. as to the former ■-, for a Record of a Prohibi- C*) Hob. Rep.
tion was ftiewed to the Court, where a Prohibition was awarded
to the Spiritual Court for Tithes of Willovjs upon a Surmize,
That they arc of ufe as Timber in the County of Southampton,
And in that Cafe it was faid, \i Willows grow within the Site of a
Houfe, it is Wafte to fell them i yet if they be felled, that Tithes
fhall be paid of them (c). C^l p, T4 Jaci
Woad yields a Predial 7/>^?, and regularly to be computed in- C.B. rot. i Sip*
ter Minutas Decimas i yet in fome Cafes may be great Tithes in ^"ifl^ ^°[! ^^'*°
places where it is much Towed •, as in Udal and TmdaWs Cafe ^^'jj* ,' ^*
{d). The Cafe was, That in Trefpais for taking of two Loads '
of Woad\ The Jury found, That if they were yW/w«f^ Dfaw^, ^ j^ ""' ^^*
then the Jury found the Defendant guilty , if they were not ' ■ •-'
Minuta Deciwa^ than for the Plaintiff : It was laid for the Plain-
tiff, That without more Circumftances it (hall not be intended
Mi7iuta Becirme v for it may be. That a great quantity o^ Woad
'may be fawn, and the greateft part of the Commodity in the
Parifti may confuMn it, for Minute Decim^ are but offmall
£C!1- ■
458 Of Tithes.
jf-' ' — - ■ I II I - - . , , . , I . 1 1. _. . -
confideratioa in a Parifh, as Herbs in a Garden, and fuch like : and
therefore TVoad (own m a Field is not Minutes Dec'ima, It was R.e-
folved by the Court jThat Woad growing in the nature of an Herb,
the Tithe thereof ought to be accounted Minute Decima^ and
belong to the Vicar. And the Dean and Chapter o{ Norivich's Cafe
//A pjCj-},^ C f) was vouched to prove it,That the Tithe of 4.0 Acres of Land
44 E!iz. fowed with Saifron, did belong unto the Vicar, and not to the Pat-
fon,becaure they were Minuta Decima* Hill, 1 Car, C. B. Sir Rich^
Vdal and the Vicar of Ahon^s Cafe. Cro.^.par.20. vid. Hutton 77.
the fame Cafe.
Wood is computed among the Predial Tithes, as alfo among the
Great Tithes j yet it hath been Pvefolved, That if a Vicar be only
endowed with the Small Tithes, and hath by reafon thereof al-
• J ways had the I'wht-Tvoody that in fuch cafe it (hall be accounted a
Small Tithe \ otherwife it is to be accounted among the Great
:(g) Rol i.(54v Tithes C^). Wood^ or z great Wood Qon(\iXw\% for the moft part of
^M^"!» '/^' Ui^^^^woods, only fome great Trees here and ihtit Jparjim there-
Trin. lo'lac'. ^*^> the whole ^ooi is Tithable, unlefs they be fpecially exempted
B. R. (h). But if the Wood for the moft part confift of Timber-Trees,
only fome fmall parcel of Underwoods or Bulhes in the fame, no
(») Adjudg. Tithe Ihall be paid of fuch Wood't the Timber-Trees do in that cafe
Hill. \6 Jac.^ priviledge the reft of the Wood (i). Wood converted into Arable,
Cafe ^'& '^'^El* ^^^^^ "°^ ^^ difcharged of Tithes,as Barren Land within the Statute
B.R.FiJ/Z^rand ^^ 7 ^^' ^' ^^^^* '^ 7^^* -^•^* ^^^^ Mafchal^ Trice. Roll.Rep,
Leonards Cafe The tenth Acre of Wood in a Coppice is a good payment of the
Adjudg'd ar- Tithe, fpecially if fuch be the Cuftom of Tithing Wood in that
cordingly. Country h otherwile Wood in a Coppice or the like,cut and fold,thc
ips'. ace. * Tithe thereof is to be anfwered not by the Buyer, but the Seller,
as fome conceive i which by others is oppofcd, who holdjThat the
Buyer, not the Seller of Woods felled to be fold, (hall anfwer the
Tithe : the Reafon is, becaufe Tithes do follow the Fruits j yet the
ik) By Hobart Parfon for his Right, hath his Remedy againft either : But Wood
?n li i'^^' ^^ Coppices or Trees that one cuts and fpendsinhis ownHoiife-
B. R, ' "^ ' keeping, though he fpend much, is not Titheable (k)^ unlefs the
Xm) 15 Jac. Parfon can alledge and prove a fpccial Cuftom to the contrary (I) i
CB. white md for generally Wood ufed for FewelinHoufe-keepingis notTithabIc
Bickerftafi (w), fed Qu. the Cuftom, it being not fo fer Legem terra (n).
<n) Tr. 4 Car. Nor is there any Tithe to be paid for fuch Wood as is cut for Hop-
C. B. mnon & poles, where Tithe is paid of the Hops {0). But where Wood is
Farmer's Cafe, grubbed up, the Land that thereby is made fit for the Plough, ftiall
(0 S'^'^j-''^^' pay Tithes prefently. And if the Tithes oiWcod^ after the Inheri*
fp\ 2Ed.(5.i*2. t"^"^^ thereof fold be fubtra(^ed,the Parfon may by the Canon-Law
vid. Rol. I. implead either the Buyer or the Seller at his choice, though he can
^i6, l.i, recover but of one i but now by the Statute Cf) the Seller only
unto
i
Of Tithes. 45^
» anto treble damages. If there be Parfon and Vicar in one Church,
and the Vicar hath the Tithe of Woods, and the Parfon the Tithe
of the Pafture, and Wood be felled for Fencing and enclofing the
Paftute, the Vicar ihall not have Tithe of the Wood (q)» Wood- (?) Mill, r 5 Jac.
lands converted into Arable or Tillage arc not difcharged of Tithe?, ^- ^- ^'^^ * .
as Heath, Wafte, or other Barren Grounds, within the Statute of adjudged.'
7 Ed. 6. Trin. 12 Jac, B. R, Cafe Mafchall verf. Trice in fin*
Roll, Ref. A Prohibition in another Cafe was granted to flay a
Suit for Tithe- Wood, upon a Surmize, That the Wood was fpent
in his Houfe for Firing, and (hews that the Cuftom in the fame P^- .
rifh is, That the Owners of any Houfe and Land in thefaid Pariffi, \
who pay Tithes to the Parfon, ought not to pay Tithe of Wood
fpcnt for Fewel in their Houfes : And llTue being upon this Cu-
liom, it was found for the Defendant. It was moved in Arreft
of Judgment, That although it be found there is no fuch Cuflom,
that yet he ought not to pay Tithe for Wood fpent in hisHoufejnor .' ^^ftohU'il
for Fencin^-ftufl for Hedges, but fer Legem terras ought to be di{^ .^>fta hnr;
charged ot thertit-Bttt it was Refolved by the Court, That it is ' - ■' ^ - .-.-^
«ot deime fer Legem t err a^thzt. any be difcharged of them •, for it
is ufual in Prohibitions, to alledge Cufloms, or by reafon of other
Lands whereof he pays Tithes, that he is difcharged of that Tithe,
but not to alledge, that fer Legem terra he is difcharged : And in ' Vi
this Cafe, the Plaintiff in the Prohibition having alledged a Cu- (^^tr. 4 Cir.
ftom, and it being found againft him, it was Adjudged for the Dc- c. B. Cro. i.
fendant that a Confultation (hould be awarded (r). By Cuitom par. 80. WorMs
Tithes may be paid for W^ood fpent in a mans own Houfe. Mich- ^ ^'^^^^ *
i^Jac, B. Watlj and Hanberry Agreed. And albeit there are fome /^* ^^ob. 288.
Trees, of what age or bignefs foever they be, that ^re regularly to gt 219. Rol.
pay Tithes, as Willows, Hafels, Hollies, Maples, ^irch, Alders, 640. p.6,7,8.
Thorns, &c. 0)i yet if they are cut for Fencing of Grt)iinds, or ^^J 3°^
for Fewcl to be fpent in the Houfes of the Owner ^i^ithin the ^f)*'co.2. Inftl
fame Parifli, no Tithes fhall be paid thereof, unlefs it hath been 6§2.Cro. El.
otherwife by Cuftom (t), Alfo Wood cut for Burning of Bricks, 499> ^09. 8c
to be ufed for repair of the Owners Buildirigs in the fattie PariOi, ^""o^'g^Jg' '/ ^'
pay no Tithes: otherwife if ufed for Bricks to fell, or foi making ^^^ ^^'^^
Houfes not of neceifary habitation, fo as the Wood in its own na- z. i, 2, 5.
ture be Tithable C«J. Likewife Tithe (hall not be paid of the Roots («) Rol.i.tf4$
of fuch Coppice- Wood, as paid Tithe at the cutting thereof, if ^^^' |^j' °;^
fuch Roots were foon after the cutting fuch Wood, grubbed up to 5^7. c. Ij/ '
ckanfe the Ground (w). If Woodlands be mixt with Woods fx)Tr.i9jac.
partly Tithable, partly not TithaWe, it hath been he|d, That if the B.R. Buckhurft.
Major part be not Tithable, it (hall priviledge the reft : but if the Trin.^^Er
greater part be Tithable, then all that is jithable fhall. pay Tithes b. R.' p^r u'en-
(x). Touching the manner of Tithing of Wood and Trees, dm.Parf.Law,
A a a a and
4^o Of Tithes.
and how the Tithes thereof are to be paid and delivered, the Reader t
. xL. for liis better fatisfadion may ccnfult the Authors in the Mareent
(y; v>o.i i.par. ^ \ <?
48, 49, 81. •' "T-L or
Plow. 470. The Parfon of Henly brought an Adion of Debt for ^00 /. upon
Brownl.i.par. t.hc Statute of E. 6. for not fetting forth oi Tubes of Wood, and
i "^o ^-Doi^U ^^^^' *^^^ ^^^ Defendant had cut down 200 Load of Wood, to the
Scu°d. 4. ' ^^^^'^ ^^ 2°^ ^- ^"*^ ^^if^i> fh^t t^e Tenth part of that did amount
Paich. 5 Jac. to 200 /. and To he brought his Adion for 600 /. upon the Statute :
i^m vcrf. So. And the Plaintiff was Non-fuit for one fault in his Declaration ■■, for
Brownl Rep ^^^^^^^ he declares the price of the Wood to be 200/. it was
V^.i.Aaionso] rpi^aken, for it fliould have been 2000/. for he demanded more
V(b:, for the Tenth part than the Principal is, by his own (hewing. If a
man buy Wood Tithable, and burn it in his own Houfe, he (hall not
pay Tttbes thereof, as hath been Refolvcd. And no 7tthes (hall be
paid for Wood cut and employed for the Endofures in the Husban-
Ti-. 14 Jac. B. dry. Alfo if a man cut Wood and burn to make Brick for rcpair-
fnd Dr^?f^"'* ing of his Dwelling-houfe for himfelf and his Family within the
Tr. ss'^Eliz.B. ^^^'^^ "0 Tttbes fliall be paid for that Wood, in regard the Parfon
R. Parf. Kin & ^^th benefit by the labour of the Family : otherwifc it is, in cafe the
Taittfon, & Bricks were only to enlarge his houfe within the Parifh, and more
V'm^n'i^' ^^^" "^^"^^"^ ^"^^ ^'^ YzvniXy, as for his pleafure or delight. If a
liixon, per Cur. "^^" ^^^^ ^'^^^ ^^ ^^^ 2nd I burn it in my houfe, the Vendor (hall
ftand charged for the Tttbes thereof, and not the Vendee, for no
•" ' Tttbes are due for Wood burnt in the Pari(hioners houfe, as hath
been Refolved. Pafcb. 1 4 Jac. in B, Parfon EU^ and Drakes Cafe,
and Prohibition granted accordingly : Although it was faid, That
by the Civtl ( or rather Canon ) Law, the Parfon hath his Ekaion
to Sue either of them i which is contrary to the Common Law.
Mich 17 lac 'Jr ^'^^ ^°/^ Clanrickard's Cafe againfi Dame Denton, the Plain-
B.r/roI. '■ "fffurmizedto the Court, That z\\ iht VilL oi Kent, which is a
Rep. par. 2. Precmd: containing above forty Parifhes time out of mind, &€. have
been difchargcd of the payment of Tttbes of Wood under the age
of 20 years, and the Defendant had fued him in the Eccleliaftical
Court, and hereupon had a Prohibition. And the Defendant Tra-
verfed the Cuftom, which a Jury was taken at the Bar to try \ and
for inducement of the Cuftom, LifiTvood was produced tn Cap. de
Decimis. where it is faid. That before that time Tttbes were not
paid for Wood, which is contrary to the 0/iand l<iew Te^ament,
and that AiTertion is made by Stratford Archbifhop of Canterbury,
for that this was a Provincial Conititution, that at that time, viz..
i-j E.^. Tithes of Syha cadua (hall be paid v By which Conftitutioii
theCommonalty finding themfelves grieved, exhibited a Bill in Par*
liament the fame year 17 E.3. reciting the Ancient Ufage of not
paying Inch Tithes^ and the laft Confiitution to the contrary, and
prayed
Of Tithes, 4^1
prayed a Prohibition to the contrary : To which Bill anfwer was
# made in this manner, 'uiz,. Be it done in this cafe, as it hath been
done before this time. And the next year another Petition was
made in Parliament for the fame caufc ; to which k was anfwered
alfo, That where Tithes of Wood have not been ufed to be paid by
Curtom, that a Prohibition (hall be granted : And thefe Ads of
Parliament the Plaintiffs Council produced out of the Parliament-
?Lo\h,Crook Juftice gave the Rule,w2S. i^uod de zrojjis arboribus De-
ciwa non dabuntur.fed de Sjylva Cadua Deama dabuntur. Vid.Dr,
&Stu.i6^a. l69.b,Anfcombe raid,TheD(?<^/<?r and Student vmiiook
the maker of that Conftitution oi Stratfcrd hic\\h\[\io^.
In a Prohibition for Tttbes of Wood it was fuggerted, That in Smmon and
the Parifli there is a Cuftom,that all the Parfons of the faid Church, Cfl«o»'s Cafe.
time out of mind Habuerunt & ga-vifi fuerunt (uch Lands parcel of ^'°' P*"^' *'
the Mannor of £. in recompence of all Tithe- Wood within the Pa-
riQi : It was the Opinion of the Juftices,that it was a good Prefcrip-
tion : for it may be that at the beginning all the Land ^as parcel of
the Mannor, and then the allowance of the Profits of this Land was
allotted in difcharge of the Tithes of all the Woods within the Parifh.
. In Prohibition to ftay a Suit in the Ecclefiaftical Court for Tithe^
Wood it was (hewed, that the Cuftom of the PariOi is, That the
Owwrs of any Houfe and Land in the Parifli, who pay Ttthe to Kmon and
the ParfonjOught not to pay Tithe for Wood fpent for Fewel in their ^irmor\ Cafe.
Houfes ; It being found for the Defendant, the Iffue being upon the ^^^' P"' ^'
Cuftom ; It was faid. That notwithftanding there were any fuch
Cuftom, yet Tithe ought not to be paid for Wood fpent for Fewel,
nor for Fencing ft uff,butj per Le^ew terra he ought to be difcharged
thereof. Refohed^ It is Hot dejure per Legem terra that any one is
difcharged of them \ for it is ufual in Fariftiioners to alledge a Cu-
ftom, but not to alledge that per Legem terra he is difcharged :
And in this cafe the Plaintiff in the Prohibition having allcdged a
Cuftom, and it being found againft him, a Confultation was
awarded..
A Compofition was betwixt an Abbot and a Parfon, that in re-
compence of the Tithes of all the Woods within the Mannor,
whereof the Abbot Owner, That he ftiould have to him and his'
Succeffor 20 Loads of Wood every year in 20 Aaes of the faid
Mannor to burn and fpend in his Houfe : The Parfonage was Ap-
propriate to the Abbey, and after the Abbey was diffolved •, the
King granted the Parfonage to one, and the 20 Acres to another.
It vi^as Refolved, That by the Unity the Eftovers were not extind i
for if they be Tithes that are not extind: by this Unity of Poffeflion,
for that 7/f^g/ run with the Lands *. and Tithes dejure Divino&
Canonica Infiitutione do appertain to the Clergy.
A a a a 2 Jfool
4^2 Of Tithes,
Wool of Sheep is Tithable proportionably to the time they arc
in the Parilh •, as thus, <viz„ The Parfon (hall have Eight pound of ^
Wool in Eighty, of Forty Sheep in the Parilli a whole year : Four
pound of Wool in Forty, if they were there but half the year:
Two pound of Wool in twenty, if they were there but three
months : and but the Tithe or Tenth of the twelfth part of the
Wool, if they lay and fed but one month intheParifti. The Wool
of Sheep ihorn and dying before Eafier next following fuch fhear-
ing, is not Tithable, unlefs the Parfon or Vicar can alledge a fpecial
Prefcription for it. Therefore Q^ where by Prefcription fuch Tithe is
(a) Fitz. N. B. claimed (a) It is faid alfo. That a Cuftom to pay a Half-penny for
Coafultadon the Wool de ovih/s 'vendttis after (hearing and before Michael-
^/' ^* mas^ is good \ and that the Sheep difcharged (hall be Weathers as
(A; Mor«. well as Ewes (b). Alfo Wool-locks and Flocks of Wool, after the
Cafe 1283. Wool made^ are likewife Tithable, if there be more than ordinary
left, other wife not: And if a Prefcription be alledged to be dis-
charged of Locks of Wool, it muft be fet forth of Wool cafually
CO More. Ibid, loft {c). For Wool and Lamb, no Adion lies upon the Statute for
not fetting out of Tithes, for they are no Predial Tithes : and no
A<ftion lies upon this Statute for fmall Tithes, md, Brownl. Rep,
far. I. pafes in Law, &c. yet Wool and Lamb are faid to be Predial
r - ^ixt Tithes Mich. Jac. 8. B, By the Decree or Ganon of the Pr©-
yincial Conftitutions the payment of the Tithe of Wool is regulated
as the Tithe of Lambs, 'viz.. That if the Pariftiioner hath under Se-
ven Fleeces, he ftiall pay a Half-penny for every Fleece i and if there
bp Sevfn Fleeces and under Ten, then the Parfon or 'Vicar is to aP
low a Half-penny for every one that is wa^tittgof T^gu. Lifjdw.cap,
Quoniam freffer. And albeit by the faid Decree, Elecf^on is given
to the Parfon to receive his Tithe in manner afoifefaid.or to let them
run on till a Fleece in kind be due in the enfuing year i yet it feem^
(d) P. 14 Eliz. by thg Common Law Tithes muft be paid annually (d). Although
ir^ur s ep. jjjj^^ cannot be denied of Locks and Pelts of Wool where there is
much in quantity i, yet it hath been Refolved, That where Tithe-
M c E! Fleeces of Wool are paid, there ftiall be no Tithe paid of the Locks
ziz. T°' * ^"'^ ^^^^ °^ Wool (e), A'lfo where the Cufiom is to (hear the
Necks of Sheep about Michaelmas^ to prevent the tearing off of
the fame by Thonis and Bryers in the Winter, if this be done
without fraud, ?i.n^ not to deceive the Parfon, then no Tithe ftiall
(/) Rol.r.(^4§ ^ P^H fpr thefame r/J.But for the Wool of Sheep dying of the
z. 14, 15. 1(5. Pvof, or ^ny other difeaff, or Hill'd or fold by the Owner, Tithe
Buirir. 1.3.242. ftiall be paid ratably for the fame (g\ And yet it hath been ofher-
Ofe.^^''^''* wife Refolved, and that Tithe ftiall Jiot be -paid of the Pelts and
(g) RoI.i.(54d. f^'^i's of Wool of Sheep wluch die of the Rot, without a Special
Za 1 8. Cuftom fox it : For.vvhere the Vicar of Kilmen-fden in the County
" of
Of Tithes. 4(^5
oiSomerfety Libelled in the Ecclefiaftical Court for Tithe of the
Wool of Sheep, which died of the Rot, a Prohibition was granted
(h). Nor (hall Tithe be paid of the Wool of thofe Sheep, which ^h) Tr. 5 Car.
after they be (horn, do die before the Feaft of Eafier next follow- B. R, Jlhton 8e
ing : The Reafonsare, {i,)'2>tQdi\xk they are but offmallorno ^^'^^^'sCafe.
value. (2.) Becaufethe Owner of the Sheep hath paid Tithes for
Chem the fame year, and there (hall not be a double Tithe paid for
one and the fame thing in one and the fame year. (3.) Because
Tithe ftiall be paid of the clear profit only : but if the Sheep do
die before the Feaft of Fafier^ all the profit of them is loftj for
which reafon to demand Tithes for the fame, were, AffliElionem ad-
dere JffliBo (i). Where a Prohibition was prayed, becaufe the Par- (/) 1 5 Car. B.
fon Libelled in the Eccleliaftical Court for the Tenth part of a R- adjiwlged.
Bargain of Sheep, which had depaftured in the Parifh from Mi- i\^n ^^"'
chaelwas to out Lady-day. the party Surmizing, That he would 197.* Hugh."
pay the Tenth part of the Wool of them, according to the Cu- Abr. Diimis,
Horn of the Parifli. The Court would not grant a Prohibition, Sejft.5.Sca,2i,
for that by this way the Parfon might be defrauded of all, and the
Sheep being now gone to another Pari(h, he cannot have an-y Wool
at this time, becaufe it was not the time or Sea&n of (hearing.
Note in that Cafe it was faid. That 4^ Animalihus Imtilibm^ the
Parfon fhall have the third part of the Bargain for Departure, as
Hories, Oxen, &c. But de Anmalihm VtiUbits^ he fiiall have
Tithe injpeeie(k). Finally, to obtain a Prohibition a man alled^ed (k) Mich.
inter alia a Cuftom, That they ufed to clip the Wool from the h?"^*^'^* •
Necks of tlieir Sheep for the prefervation of them, as aforefaid, ° ' '^^*
and at Shearing they ufed to pay the Tenth Fleece, in confideration
whereof they uted to be difcharged of the payment of Tithes for
Neck- Wool : IfTue being joyned upon this and other Prefcriptions
then Pleaded, and found againft the Plaintiff, It was moved. That
no Confultation might be awarded •, but it was Adjudged for the
Defendant s for the Prohibition is grounded upon the Prefcription,
and being found againll it, that, &c. Wherefore being found for
the Plaintiff, a Confultation. was granted. Trin, 18 Jac.B.R. Jouce
& Parker's Cafe. Cro. 2 . par. $75. 'vid. Bulfir.^.par. 242, 24.3. the
fame Cafe. Hughes Abridg. Difmes, Sedl. 5. Sedt. 23.
An Adion of Debt brought upon the Statute of E.6. for not (et- TrIn. 8 ]ac.
ting forth of Tithes, and the Plaintiff declared as well for the Pre- Rot. 1 54. pah
dial Tithes, for which he might well bring his Acftion, as for Y^^^' Nichols.
other Tithes, as of Wool and Lamb, for which no Adion on that p[r T l^^^'owi
Stat, would lji.e v. and upon Trial the Jury found for all, as well for of Dtit.
t^hofe t%t yvoull, jas would not bear an Adlion •> and after a Verdid
this Exception was taken, and Judgment arrefted. If a man pay
Tithe of Lamb at St.M^ir/^j-^/^^jand after at Midfummer he (hear the
reft
4^4 ^/ Tithes.
... , reft of the Lambs, 'vix» the Nine parts, he ought to pay the Ttthe of
Inter'NichoUs' ^ool for them, although there be but two months between the
& Hoopery ptr time of payment of the Tithes of the Lambs that were not ihorn.
Cur, paid with their Fleeces, and the ftiearing of the reft, for it is a new
Tr. 12 Tac. B. '^^'^^^^^^'^ > i" this cafe Prohibition was therefore denied. But a raa«
R. between * ftiall not pay any Ttthe of Herbage of Sheep, for that he pays Tithe
MirskaU and of the Wool, for othcrwife he ftiould pay Tithes twice of the fame
J'?"* ^''J''' Increafe. If a man fliear his 5heep only about the Neck to preferve
b/r.' b«wee'n ^^^^ ^^on^ ^be Vermin, and not for the profit of the Wool, the Par-
joife and Par- fon fliall have no Tithes thereof i but otherwife it is, if they are
4«r, pr Cur, much ftiorn by Covin for the benefit of the Wool : the Law is the
fame, if they are ftiorn about the Necks without fraud but two
months before and two months after Michaelmas' to preferve them
-'Cafe Ibid, and their Fleeces from the Brambles, no Tithes fliall be paid there-
of, for it appears that they were not fhorn for the benefit of the
^. i4Car.B.R. Wool, it being done at that time before the Fleeces are increafed af-
^latcr Dent & ter their being fhorn throughout. Likewife, if a Parifhioncr cut off
^Sdvin^ftr Cur, tj^^ jj^ty Locks of his Sheep, for their better prefervation from the
. Vermin, before the Shearing- time, and that without fraud, no Tithes
' fhall be paid thereof i and Prohibition granted in this cafe. But if a
man kill Sheep, he fhall yet pay Tithes of the Wool that comes of
them, but not for their Skins.
For a Prohibition for fuing for Tithes of Locks of Wool, it was
fuggcfted, he had payed the Tenth Fleece of Wool in fatisfadion of
Jtfv^ Se Vajnu all Locks ziv^Tithes due for Wool : The Court held,That in this cafe
icafc. the fubltance of the Prefcription was good enough, becaufc Locks be
par. I, j^Qj ^f ji^g ^^^^ ^^j^jg ^jl^jj jj^g Fleece : But in regard of a fault in
the Suggeftion, that it was not {that they had ufuallj paid) which
is iifuable, a Confultation was awarded.
CHAP.
4<^5
CHAR XXXIIL
Of Banns.
i,» whence the prohaMe derivation of that word^ and what it Jig-
nifies,
2. The manner and form of Publication of Banns according to the
Provincial Confiitutions,
3.. By whom Licences for Dijpenfation of Banns may be granted
according to the Canon \ Alfo to whom^ and. under what
Conditions or Cautions.
4, Requijites or Preparatories in Law unto fuch Licences,
5. A Cafe at Common Law^ with the Refolutions of the Court re*
lating to Banns, with. the Power of the Ecclejiafiical Jurifi
di^ion therein.
(i.) T^ ANNS (bannusvelb annum) ii Ban in the Brittifii
■ j Language figniiies Clamor^zs Mr. Blount gives it in his
^^^^ Nomo'Lexicon^ then we need feek no further for its
Derivation : Bannos, ^ an non declinata voce a Grac. mv omne^
oTi Tmffiv innotefcat, Mutatur enim factle '^ in /2« For though
the Word be frequently mentioned by the Feudifsy and thence
applied to other ufes, as to that which wc here in this Kingdom
call a Proclamation, whereby any thing is by Authority publickly
Commanded, Permitted, or Forbidden, Fincen. de Franch. De*
cif.%21, d^ 3^0. yet in the Senfe here meant and intended, it
is not (b ptoperly a Proclamation as a Publication or a publick No"
tice-giving. And therefore by the word Banns, as we ufe it, is
intended that publifliing of Matrimonial Contrads in the Church
tempore Divinorum^ before Solemnization of Marriage, to the end.
That if any have ought material to objed: againlt the intended
Marriage fignified by fuch Publication, either in refpedt of Pre-con-
tradt or otherwife, they may feafonably make their Exception
againft it, confonant to the very Letter of the Canon Law, where
Banna funt ^roclamationes Sponfi ^ Sponfa in Ecclejiis fieri foUtay
c.i'J. extr, de Sponf. & cult. Qui Matrim^ accufpof.bcQ'Ult.
de clandefi; Dejpon. vid. Gothof. ad Nov. Leon. 8p. in med. ibi.
Hottoman is very confident that there is both bannus and bannum^
and that they iignihe Two diftindt things, and neither of them to
our purpofeifor according to his Expolition,theone(hould tignifiean
Edid what day their Vaiflals or Slaves furnilh'd with Hoife and Arms,
ihat:
/^66 Of Banns.
fliall encounter oiie another i the other a Sanation or Decree, that
is, a Muldt or Fine impofed on hini that does not obey the Edid.
Hottom, in 'verh. Bannus. De 'verbis Feudaltbus.
(2.) In the Provincial Conftitutions Banna are publick Pro-
clamations or Denunciations') Lind* Provin. Confiit. de eland.
DeJj>on, c. i, glof. verb. Bannorum. Others defcribe them to be
EdiBa fublice propojita ■-, Fetr. de Anchor, in cap. cum in taa Ext,
de Sfonfal. By the faid Provincial Conftitutions that Banns ought to
be Solemn Publications^ that is, they ought to be thrice publifhed in
the Parochial-Churches vi^here the contracting Parties and their
Parents dwell, on three Sabbath-days or three Fcftival^days (allow-
ing fome interval of time between each^ at the time of Divine Ser-
vice, when moft of the Parifhions are aflembled together, by the
Parfons of the faid Parilhes refpedtively, or others in holy Orders,
at fuch times and Seafons wherein Solemnization of Marriage is,
not Canonically prohibited, ^lof. 'verb. Bannorum^ ubi Jupra. Yet
where three Fcftivals immediately fucceed each other, fuch Publi-
cation in them made, holds good in Law i. Prcv. Confi. de Sponf.
glof. in 'verb, afe difiantibus : As alfo (hall the Marriage it felfjwhen
once folemnizedj albeit fuch Publication of Banns, as aforefaid,
did not precede the fame,^/» in 'v. Solen. Edit, de eland. Dej^on.ubi
fupra,
(3.) But by the Ecclefiaftical Canons now in force,it is Ordained,
(i) Can. 1 01, Ci) That no Licence for the Solemnization of Marriage (hall be
102,103,104. granted, without thrice open Publication of the Banns, according
to the Book of Common Prayer, by any Perfon exercifing any Ec-
clefiaftical Jurifdidlion, or claiming any Privilcdges in the right
of their Churches i but ftiall be granted only by fuch as have
Episcopal Authority, or the CommilTary for Faculties, Yicars-Ge-
meral of the Archbi(hops and Bi(hops fede plena, or fede tjacante.
The Guardian of the Spiritualties, or Ordinaries exerciiing of right
Epifcopal Jurifdidlion in their feveral Jurifdidtions relpedively,
and unto fuch Perfons only as be of good State and Quality, and
that upon good caution and (tcurity i which fhall contain thefe
four Conditions. (1.) That therein is not any Impediment or Pre-
contrad, Confanguinity, Affinity, or other lawful Caufe to hin-
der the faid Marriage. (2.) That there is not any Suit depending
in any Court before any Ecclefiaftical Judge, touching any Con-
tra<a or Marriage of either of the faid Parties with any other. C3.)
That they have the confent of their Parents or Guardians. (4.)
That they (hall celebrate the faid Marriage publickly in the Parilh-
Church or Chappel where one of them dwells^and that between the
hours of Eight and Twelve in the Forenoon. PafcL 8 Car. B. R.
Cafe hkttin^ley verf. Marty n. It was Refolved, That if any Marry
with-
Of Banns. 4^7
^without Proclamation of Banns^ or Licence to difpence therewith ;
they are citable for the fame in the Ecclefiaftical Court and no
Prohibition lies in the cafe. 'Jomi Rt^,
C4.) Before any fuch Licence (as aforefaid) can be granted, It
muft appear to the Judge by the Oaths of two fufficient witnefTcs,
that the confent of the Parents or Guardians is thereunto obtained :
and one of the parties muft perfonally (wear, that he believes there
is no Let or Impediment of Precontra(^5 Kindred or Alliance, or of
any other lawful caufe whatfoever, nor any Suit commenced in
any Ecclefiaftical Court, to hinder the faid Marriage according to
the Tenor of the faid Licence > But in cafe the Parties be in Wi-
dowhood, then the Claufe relating to the Parents Confent may be
omitted i the penalty for offending in the Premifcs is fix montjbs
fufpenfion ab executione Officij in any Commiffary for Faculties,
Vicars General, or other the faid Ordinaries, together with vacating
of every fuch Licence or Difpenfation, and fubjedling the Parties
marrying to the puniQiments appointed for clandeftine Marriages,
The Syntagwatifi tels us, that there is a Canon extant, made by
John Metropolitan of Mufcovy^ who is held as a Prophet in RHJjia
to this dav, that Matrimovium non niji 'publtce in Ecclejiis contra- . ,
batur, Tetrus Gregor. Tholof (k). ' 9. cs^n! lo.'
($.) In the Cafe of Matingly againft Martyn it was refolved
(ij That the Cognizanee of all Fornications, Adulteries, and
fufpcdted living in Adultery doth appertain to the Ecclefiaftical
Court. (2) That if any marry without Proclamation of the pafch. 8 Car.
Banns^ and without a Licence to difpenfe therewith, they are B. R. Matinle^
citable in the Ecclefiaftical Court for the fame, and no Prohi- V^^^^^^l^'
bitionliesin that cafe (as aforefaid.) (3.) That if any Licences J
to marry without Banns be granted by the Ordinary of the Dio-
cefs, or by Commiffaries or Oflicials in their Jurifdidions, or
by the Archbiftiop in his Province before the Statute of 2 5 H.^.
The Cognizance of the fufficiency of fuch Licence, of the Form
of the Difpenfation, and of the Conditions and Provifoes of fuch
Licence, and whether fufficient Notice thereof were given or
not, are examinable only in the Ecclefiaftical Court '> and when
the Licence is fufficient, and die Provifoes well and duly ob-
ferved, and Notice thereof, and this be refufed or rejeded in the
' Ecclefiaftical Court, yet no Prohibition lies, but the Party grie-
ved muft have his remedy by way of Appeal, and not other-
I wife. (4.) That where power is given by Adt of Parliament to
the Archbilliop to grant Licence cither ck nonjo or in Conftrmati-
'i)n of his Authority i yet the form of the Difpenfation, and the ■
1 b b b obfcr-
4^8 Of Banns. j
obfervation of the Provifocs and Conditions thereof, and whethei*
fufficient notice was given or notjare examinable in the Ecclcfiaftical
Court-, and if they there adjudge in that Cafe irregularly,no Pr£)hibi.
tion lies, but the Remedy ia only by way of Appeal ; But if it come
into queftion in the Ecclefiaftical Court, whether the words of the
Ad of 25 H. 8. do give fufficient power to the Archbifhop to grant
a Licence, there if the Ecdefiaftical Court doth judge againllthe
power, a Prohibition lies, and not otherwife i but if they allow
the Licence in point of power, and only infift upon tke Form, and
Notice, and other Circumftances, in fuchcafe a Prohibition doth
not lie : For though a power to grant Licences be by Ad of Parlia-
ment, which is a Temporal thing, yet theLicenfe it felf remains an -
Ecdefiaftical thing, and the examination of all thefe things (faving
the Power) remains to the Ecdefiaftical Court as it was before.
CHAR
^69
CHAP. XXXIV.
Of Adultery.
1. What Adultery^ why fo called, and in what Court Cogni'-
zahle.
2. The punijhment of Adultery under the Levitical LaTV ', and
what it was anciently by the Civil Law^
|. The fever al Punijhment s thereof anciently according to the Qua-
lity of the Offenders refpe5lively,
4* Adulterers compared to Idolaters '■) frange funipiments of Adul-
tery among the ancient Pagans.
5. The Severity of certain Ecclejiafiical Laws in ancient timts
againjt Adultery,
6. The Cufioms among the Arabians, M^h^ia^tans, Tartars, Indi-
ans, Pagans, in funijhing Adulteries* i^^a;
7. The Civil Law touching Jealoufie^ and fecond Marriage^ the
former Hushand then living,
8. Adultery, what in fenfu largo '■> how the punifltment thereof is
now mitigated at the Civil Law to what it was. anciently •> and
how punijhed at the Canon Law.
p. Xhe diverfty of Punifiments infliSled o» Adulterers, according
to the divers Cu^oms of Nations refpeBively.
10. In what re^eB the Temporal Laws take fome Cognizance of
Adultery,
XI, What the Saxons of old in this Kingdom called the Tunijhment
of Adultery-, the remarkable Cafe of Sir Jo. de Caniois.
12. Adultery falls under a threefold Conf deration of Law '■> the
Hifigry of the Adulterous Stork-
AdulttYium (fi
(i.) A DULTERY, ot Adulterium, quafi L^^ ^^^^^^^^ ^^^,^^„^„.„,^
f\ thorum ] where the Rights of lawful Matrimony are "illi^TtuTc'oncu-
^ -*' violated, Lindwoodh Confi. de OJJic. Arcbipresh. verb, bim coujugat$-
tertium mandat- is the Inconvenience of Married peifons, or of per- & conjugate*
fons whereof the one at leaft is under the Conjugal Vow. This
is properly cognizable within the Eccleliaftjc^l Jurifdidlion i. the .li*^ l'-^"' ■
Convidion whereof is by Examination and other Legal proof re- . • •■
quiiite by the Law of the Church i which if committed by any
of the Clergy, duly convicted thereof, he was puniflmble by Im-
prifonment at the difcretioiiof the Billiop or Ordinary of that Dio^
ccfs wherein he tefides (^). (bySi. i Hi 7*'
Ebbb 2, (20 By
470 Of Adultery.
V (2.) By the Lcvitical Law Adultery was puniOied with Death iip
rO Lev.29.io. both Sexes, (c) yea ftoncd- to death. (,I) By the Civil Law alfo
f^Uoh'il' ^^i'^^' '^^"^ '^ ^^^ Violating of another mans Bed, the Punifhraent
^ ^ J • '5° anciently was Death, both in the Man and in the Woman i But
afterwards the punifhment was mitigated by that Law as to the
Woman, (he being tirft whipt, and then Hiut up m a Monaftery
but by the Canons other Laws .arc inflided.
C3.) At the Synod m Ireland, held by St. P^fri^ and other
BiOiops^w. 455. bytheipf/j Canon thereof die Adulterers were
to be excommunicated. At the Council held at Berghamjead bv
^env;ald Atchbiihop of Canterhurj, the Bifliop of Hereford and
others in the fifth year of mtbredKin^ of Kent An. 6^7. feveral
Laws were made againft Adultery, according to the feveral quali-
ties and conditions of the perfons offending refpedively ^ befide
E-xcommunication againft all fuch , if the Adulterer were an Alien
he was to depart the Land, and to take his Sins and his Eftatc away
with him i IfaSouldier, then to be fin'd five pounds: If a Ruftick
or Country Husbandman (known in the Law by [ Fap-anus 1 ) then
to pay fifty killings i if a Prieft, then to be inhibited from admi-
nutrmg the Sacrament of Baptifm.
X^.) Boniface ArchbiOiop of Mentx., when he was the Popes
Legate in Germany, An.'j^'^. in his Epiftle to zy£t helkald Kiim
M<?m4, compares Adulterers to Idolaters i and moreover fays,
that the Greeks and Romans compared Adultery to Blarpbemy^whm
committed by or with one of religious Order,and adds, that among;
the Pagans, m the time of the old 5^x««/ the very pradice waS
that if a Virgin Adulteroufly defil'd her Fathers Family, or a Ma^
ned Woman plaid the W^ore, they were enforced to be their own
Lxecutioners, and by their own hands to reduce themfelves by
Strangling to dead Corps, which being after burnt, the Adulterer
was hanged over the AOies thereof i and at other times the Adul-
terelT^s were by thofe of their own Sex, out of their 7eal to Chafti-
ty, whipt from Village to Village, till they were whipt to death.
Tn Epifl. Bm. ^"^ ^""^T^ Saxoma, ubi nulla efi Chrifti cognitio, ft Virzo in pa-
f^c.^d Ethel^ ^/«^ dojno marttata, fub Conjuge fuerit adulterata, manu propria
And/trf/tV?^ '''^'T^^'' ^f^P'^M^^ feP^l^^ corruptormUen-
t n' .0 '''' iZ: T T/f ''"" -^^^-^A#^ Pgellant elm cafiJL-
tron^,& cultelhs pungunt, & de VtUa m VtUam inter Ce occurrunt
Sddtni ad £. ^'^^fl^.^eUafnces donee tntertmant. By the Laws oi miUam the
adrmrum Nota: y>0"queror the Adulterer was to be put to death. St Pater depre-
ftSpeciiegium bendentFdiamin Adulterw in dome fua, feu in domo Generi fui,
P.i85.1.37. ^^^^^^cebnetomc(legeforfa»o,are,ecadere)Adulterum.
fSOIn
Of Adultery, ^^.yi
C5 J In the Ecclefiaftical Laws of Keneth King of ScotSy Ann,
840. by the i \th and i '^th Canon thereof it is ordained, that he
who deflowers a Virgin, fliall die for it, unlels fhe defires him for
her Husband i and that he who adulterates another mans Wife not
diflenting, both (hall fuffer the fevereft puniftimcnt, unlefs (he were
under force, in which cafe (he (hall be acquitted. By the Ecclefi-
aftical Laws of Hoel Dha King of fVales^ Ann. P40, it was a fuf-
iicient caufe of Divorce, if a Woman did but kifs any other Man
than her Husband. /. 1 8. Yea (he muft lofe her Dower and all her
Rights by that Law, and only for a kifs ; and by the fame Law A-
dultery in the Man was held as a kind of Hoftility. In the time of
the htter Saxons by the Ecclefia(ticl Laws of King Edmund^An^^^^,
Adulterers and Murderers had one and the fame puni(hment,and both
alike denied Chri(tian Burial. After him,by the Eccle(iaftical Laws of
King Knute, An. 1032. Adulterers and fuch as violated the Chaftity
of a Widow or a Virgin, were to be banilhed and their Eilates con-
fifcate : And in cafe a Wife played the Strumpet, her Husband
living, he was to poflTefs himfelf of all her Eftate Real as well as
Perfonal, and (he to have her Nofe and Ears cut o(F, and an indeli-
ble Blot with perpetual Infamy to remain upon her Family,
{6.) The Arabians (as Straho relates ) though they ufed In-
ceftuous Copulation with Sirter and Mother, yet puni(hed Adul-
tery with Death i but that only was Adultery in their account,
which was out of the fame Linage or Kindred, for otherwi(e. All
of the fame Blood to ufe the fame Woman, was but their ( /«-
cefious j Honefty. And by the very Alchoran not only is an unchad
Look on another Mans Wife forbidden, but alfo if a Wife be con-
vided of Adultery by the Tcftimony of four Women, (he is con-
fin'd to perpetual Imprifonment in her own hou(e till (he dies, and
none fuf^'ered to come at her: And in fome part of the Grand
Seigniors Territories the Turks have a cuftom to thrufl: the Adul-
terers head into a Dung- Wallet of the Paunch of a Beaft new killed,
and fo to cari7 him tiirough the Streets i but for a Chriftian to
have Carnal knowledg of any of their Women, is Death, unle(s
he turn Turk, And with the Tartars their Women are (b chad, as
that Adultery is feldom heard of among them, but when it hap-
pens to be committed, they punish it alfo with death Qe). Among rg^ via. I. ?;
the very Pagan Indians as at Dominica, Cuiana^ Bantam^ Japan^ c. 8^.
and other parts of the Indies, Adultery is puni(hed with death : (/) , .-.
Wktviiitth^yavans^wdiChmoisox Chinejjes infli<5t the fame pu- ^' ^ ^^ '
ni(hmcnt of death on Adulterers ; and at Vequin, the City wherc-
the King of China makes his Relidence i the Dowries or Joyn-
tures of convicted Adulterc(res are beltowcd on the Hofpitajs of
Fe-
472 Of Adultery,
Female Orphans i (g) and at Petane, a Province joyn'mg to CJbmoy
Q) Purch.' ^j^^.j^ Noble Perfouages are for A-daltery even by their own Parents
c, 2.k&. i. ^' either ftrangled or ftab'd to death, at their own choice which. At
(fe)Leriusc.i7. Bra/ile, the Husband might kill his Adulterous Wife, (b) and at
(*) Mex. Hift. Mexico or New Spain Adultery was death i (i) alfo by the Laws
of the Inguasy the ancient Lords of Per«, Adukery and Inccft
with Afcendents or Dependents in the dired Line was punifhed
with death ■> yet they held it no Adukery to have maay Wives,
whereof one only was principal, with whom Marriage was coii-
traded, whom they Wedded and received with a particular Ma-
trimonial Ceremony, She only was held as the Adulterefs and with
the Adulterer died for it i the others being rather Concubines thai>
Wives, were not underftood by them as capabk of this Offence or
ik JPurch.Pil. Pmiiflvmcnt C;^}. Indeed in the Kingdom of Angola \\\<iy£thpQfia^
VI' -sc.d. ^^^^ ^j. g^^^^i^ j„ ^}^e Indies^ Adukery is but the loTs of the Adul-
(0 Linfx. i5. terers Nofe (/j, and in Guinea it is in the Woman but a Divorce
and Banifhment from her houfe,and in the Adulterer but a forfeiture
of 24 Fefii's oi Gold to the Kiiig j aiwl among the Jewsi now
fince the Sword and Scepter departed from Jttdah, it is but a Pe-
nalty inftead of a pimiihrnent, and but a landing up to the Chii§
in cold Water to quench the Flames of Luft. Thefe Prefidentsare
not here quoted for Laws, but only to let us fee what ConftrivStions
even Pagans and Mahttmetam have made of Adultery,
1/ ' ; ^70 By the Civil. Law^ % man jealous of his Wife, may accufe her
before a;Competeiit Judge of Adultery, if after three Admoniti-
on*, ill the Prefence of three credible Perfons, given to the Perfon
iufpedtcd of too much Familiarity with her, he refrain not from
l^r company and communication with her. Auth. Coll. p. By
which Law alfo both Sexes are punjQied as guilty of Adultery, if a.
Woman, whofe Husband is abroad in the Wars, or otherwjfe ab-
fent, marry again, before fhe hath certain intelligence of his death,
either from the Commander under whom he ferved, or from the
Governor of the place where he died, for without fuch certain in-
telligence, if file prefume to marry again (how long foever her Hu{^
band is otherwife abfent from l^er ) both flie and he who married
her iliall be punifhed q.s Adiikcrers i and if her former Husband after
iiuch her fecond Marriage return back again, fhe alfo (hall return back
again to her former Husband, if he will receive her, otherwife (he
Hull live apart from them both, Auth. Coll. ibid. Blackden mar-
ried one within age, and after difagreed, fo that they might marry
elfewherej and the fiift Wife had IflTue by other Husbands, and
died i and Blackden was fued in the Ecckliaftical Court by an In-
former, fuppoiuig he had naarritd a Woman, living his other Wife^ '
aiid
Of Adultery, 473
and Blackden there proves the difagreement, by which he had Sen-
tence for him againit the Informer, and yet he was taxed to give
the Informer 20 Marks for Cofts, which he refufed to pay, and
moved for a Prohibition, which was granted , For it was Injufticc
to allow Cofts to one who had vexed him without caufe, and when
Sentence had been given againft the Informer.
(8. J This Adultery or Adult erium, f]ua/i \_ad aherun'] being
C as aforefaid ) an unlawful accefs ad alterius thorum^ although it
properly refers to one or both fuch as is or are in a Matrimonial
State, yet by abufe of words it is alfo commonly uiiderftood of
corrupting or violating the Chaftity of a Virgin or a Widow i
as when we ufually fay, fuch or fuch natural things are adulterated,
when by reafon of fome Artifice they are corrupted and become
not truly natural i and fuch Wares and Merchandizes are adul-
terated, when there is fome fraud in the cafe,and fo Adultery is re-
pugnant to the very Nature of Matrimony, which of Two makej
One, when as the other of One makes Two : The punifhment
whereof was ancieiitlyby the Civil Law, Capital as to' the Man :
But by the latter Laws of the Autheiiticks, the Women are firft
whipt, then thruft into Monafteries v and by the Cannon Law it '. ^^V!" '
is Excommunication. -, --^'5^«'W'
Cp.) Tlato made a Law, that Whoever kill'd' an AHaftereiT^ oi.t.h?i05
fhould go unpunilhed. The Inhabitaiiti U Arabia felix. pu- r ■ :.iT r.
iiiflied it with death. Selucus^ otherwife Nicamri King of Sj-
ria, that fucceeded Alexander in the Government of that part of
the Empire, decreed that whoever was apprehended in Adultery
fhould be exoculated, or have his Eyes pluck'd out, which af-
terwards hapned to be impartially fif ft executed on his own
Son Co). And albeit according to the proper Conftru(5tioi1 csf (o^oeHuhjis!
words there is a difference put between Adukerium and Stuprumy
the former referring to perfbns married, the other to Widows or
Virgins. Modefiin. in L. inter fiuprum ff. de 'verh. Sig. Yet
by the Julian Law the word '[_ Adultery] is ufed indifferently in
reference to both : Id. Modefi. in L. Stuprtifn. Ad L. Jul, de
Adult, But to fpeak properly, they are not Termini conzrertt-
hiles, for though all Adultery be Whoredom, yet every Whore-
dom is not Adultery ; each of which have their refpedrive punifh-
ments according to the Laws and Cuftoms of the place where
they are committed. Grotius out of LeJJius affirms, that the Adul-
terer and Adultcrefs are not only obliged to iildernnitie the inno-
cent party as to all charges bf Alimentation of the unlawful
begotten, but alfo to make good what damage the Legitimate
Children
474 ^f adultery.
Children may thereby fuffer in their Inheritance, and whoever
doth leflen the reputation of a Virgin cither by force or infinua-
tions, lliall refund to her as much as (lie is thereby fallen in va-
lue, upon the hopes or expedlarion of her Preferment in Mar-
triage : But if by his Solicitations he hath obtained the ufe of her
body under a promife of Marriage, he is obliged to marry her ar-
cordingly. Grot, dejur.be!> lib. 2. cap. 17. ^^ dc Lefs. lib. 11.
cap. 10. Dub, 6c
(lo.) Although this Sin of Adultery, is properly and of right
belonging to the Cognizance of the Ecckfiaftical Jurifdidion,
yet it will not be denied, but that as it is an offence againft the
peace of the Realm ( for which reafon fome are of opinion that
Avoutry or Baudry is an offence Temporal as well as Spiritual )
the Jufticcs of the Peace may out of their SelFions require Surety
for the good Behavior of fuch as offend therein, as alfo of fuch as
by Common Fame are reputed Reforters to Houfes fufpedted of
maintaining Adultery or Incontinency, of fuch as keep fuch Houfes,
of lewd Women found in fuch Houfes, of common "Whoremon-
(s)i%YX\z^hy gers and common Whores i (s) And upon Informz^tion given to
Wray, Andtrfm a Conftable, that a Man and Woman be in Adultery or Fomica-
and Manvpoodf tion together (or that a Man or Woman of evil Fame or Re-
Crom. 140. pQjt gyg gQj^je ^q 3 fufpedted Houfe in the night ) the Officer may
tak^jopmpany with hin;i, aiid if he find tlicm fo, he may carry them
Er Travers° '^^ Firon, or before. 4 Juftice of Peace to find Sureties for their
432. * good' Behavior CO.
(ii') The Punifhment of Adultery is diverfified according to
the Laws and Cufloms of feveral Nations refpedtively as foremen-
tioned, and the Penalty thereof with the Saxons of old in this
Kingdom was called Lairyvite or Lecher-wit e^ and Legergeldum^
from two Saxon words fignifying it feems concumbere and mulBuy
(k) B! Nomo- ^^^ ^ ^"^^ *^^ Cuftom of punifhing of Offenders of that kind :
Lex verb. which Priviledg is faid to have belonged anciently to the Lords of
Liirwitt. fome Manners, in reference to their Villains and Tenants, (w) And
(»») Vid. Fleta jjy Statute Law, as alfo by the Law of the Land, a Wife that
puraofe^°and^ elopes, and parrs from her Husband with an Adulterer, and
Co.lnrt. par.4. icfufes to be reconciled to him, lofeth or forfeits her Dower or
fo. 206. Jointure, (x) yea though flie departed from him with his own
{x) St. Welt, confent, to which purpofe remarkable is that Cafe of Sir 'John
Iiifi^ir 22, '^* ^^^ Camois^ Son of the Lord Ralfih Camois^ in the time of Ed-w.
the firfl:, who of his own voluntary Will gave and demifed his
own Wife Margaret^ Daughter and Heir of John de Gaidefdcn
unto Sir Wilham Tannel Kt. and together with her gave^, granted,
releafcd.
Of Adultery, 475
rcleafed, and Quit-cldmcd- all her Goods and ^Chattels, &c. fothaf
* neither himfelf nor any other in his name, fhoiJd ever. after mate.
any claim, or challenge, any intereft in the faid- Margarety or to or
in her Goods or Chattels, ^q. Whereupon (he demanding her.
) Dower in part of the Lands of S. John Camojs there happened a
Suit at Law, wherein (he was overthrown by Judgment given, That'
fhe ottghtto have no Doiver out of his Eflate^ upon the Statute .,o£
Weftm.li Quia recejfit a Marito fm wvitafua, & viodtv.td,
jidultera cum pradiBo Gulielmo^ dec. {y). O'^Cambd.
ri2.) There are. of the Church of Rame^ who hold that Adul^ ?'"*^"5: ^/'
^ ' . r 1 • Itx. & Co.Initi
tery in comugato cum Jcluta \sminm feccatum quam m conjugata..' _ fo. 47*.
cum foluto j the reafon they give for it is, for that it is far more re- ' ' '
pugnant to the Law of Nature that one Woman (hould be joyned
to two Men, than e contra^ and fuppofe that Bigamy in the Pa-
triarchs of old is an impregnable Fortification of that Reafon >
the Feminine Sex will give them but little Thanks for this Opini-
on : But leaving them to enjoy the one and the other, we hold
that This, as to the Inquiry and Punilhment thereof, is properly
within the Ecclefia(\ical Cognizance, it being moft confonant
to Reafon , that in what Jurifdidlion Matrimonial Caufes are
controvertible, in the fame (hould the Violation^ of Conjugal
Rights be difculTed > to which end, as well the Civil as Canon
Law C though that efpecially ) are furnifh'd with great variety
of 1Con(\itutions, to obviate all manner of circum(!ances relattn^^
to this Subjea, Vafch. S Car. B. R. Cafe Matingly verf. Mar-
tm. It was Refolved, That the Cognizance of all Fornications,
Adulteries, and of Peribns fufpeded to live in Adultery, doth be-
\o\\o to the Ecclefiaftical Court. Jones Rep, So then Adnlterium
being quafi AcceJJio ad altertus thorum^ is the violation of another s
Bed ■-> whence it is required, that either both, or one of the Par-
ties, be under the Matrimonial Vow •, for that conjugal circum-
Ihnce, either in the Male or Female, is as the cau[a fine qua non^
th4,t the luxurious i\d falls under the notion of Adultery^ in di-
dinc!ion from adts of the fame kind under other circumftances >
For the Law holds, That it may committed in a threefold manner,
either ex parte 'vir'h 'vel femin^y 'uel utriufq; always fuppoling that
one or other are Matrimonializ'd,and both living. The Penalty of
Adultery hath varied according to the Laws and Cufloms of feveral
Nations, and of feveral Ages in the fame Nation ^ as appears by
what hath been faid on this Subjed ■■> The punilhment of this Epi- leflTius de Juft.
demical Evil, the very Brutes and meer Animals have given us a &)ur. lib.4.
prefident of, if credit may be given to fuch as have made report^ of ^^^'^^^ ' •^°'
M StfM;:6( WKi^h Le0m writes out of another Author, as being
I fcreatnreof (Grange abhorrency and revenge of Adultery, that by
C c c c the
47^ ^/ Adultery.
the very inftm(3: of Nature the jealous Animal, impatient of vin^-
cating his defiled Neft, fummon'd others of the fame Feather to ^
advife in the Cafe, Teftifying that in his own time a certain Stork
being as it were convi<3:ed of Adultery '^er olfaBum mafculi fui or
the imelling of her Male, he conven'd a Flock of other Storks^ be- \
fore whom he fo profecuted (Nefcio tfualtPer, fays the Author) the
Indidlment againft the Female Stork^ that (he was firft deplum'd,
then torn in pieces by the rude Multitude of the other Storks^ as if
in a folemn Council they had all unanimouHy ientenc'd her to death
as an Adulterefs. If the Report feems improbable, yet the Moral
is very applicable.
GHAP.
477
CHAP. XXXV.
Of Baftards and Baftardy.
1, what Baftard Jiptifies ; the derivation of that word,
2. The difference between Baftard and Mulier i what MuMtt Jignl'-
jies ; and why fo called,
5. Baftardy difiinguifhl*d at the Common Law into Special and Ge-
neral Baftardy.
4. Frefumptions of Law touching 2aShxf3i^^in cafe of the Husbands
ahfence frQn% his Wife.
5. Five Affellations of EzOiSixds for dif-inBion-fake at the Civil
Lzw^with refpeB to thefeveral finalities of the Perfons of whom
they were begotten.
6. The different Modes of frofecution of Baftardy in the Temporal
and Ecclefiaftical Courts.
7. Limitation of Time in reference to Birth and BaRzrdy by the
Civil Law j The chaf!- Wtdow cf Paris, whofe Child born the
1 4th month after her Husbands deaths was adjudged Legiti-
mate.
S. Of a Child born before Marriage y or immediately after Marri*
age ; or long after Marriage ef a Woman whofe Husband died
without Bedding her^ whether Baftard or mt ?
p. The legal computation of Time touching the Birth of a Child,
whether Legitimate or not ? Andoffucb as are begotten after
0 Divorce*
le. The pwtilhment of a Woman having a.^ii^drd^ that may be
chargeable to the Parijh. ■ ^'^ ^^'^ i. -...«/ ,^ .
II. How the fame Verfon may in diveri refPeai be both 'dfiihitd
or Nullius Filius, and yet- a Son.
I^. The Thyficians report in Courts in a Cafe of Common Law,
how long a Woman, may go with Child..
13. The Bijhops Certificate requifi'te in a Flea of Baftardy, in dif-
ability ef a Plaintiff.
14. The Power of the fufiices of the Teace^ and of the Seffions^ in
reference to the reputed Fathers of Baftards.
15. In an A ff ion for faying fuch an one had a Baftard, a Prohibi-
tion to the Ecclefiafttcal Courts becaufe they admitted the De"
fendants Confejfion, but would not allow of his Juftification*
i<5. Who are held as Baftardiz'd at the Common Law*
17. What a Mulier is at Common Law.
CjZqz % iS. Other
?B
478, Of BaftarJs
18. Other Defer ipt ions of Muliers ^»^ Baftards.
ip. The difference betTveen the Ct'vil and Common Law in foifjttf
Muliers and Baftards.
20. What kind of Divorce fmll Baftardize ?)6e Jffue ?
^21. Different Refolmions touching B2i\3LrdY, \
22, A ManuVi'vorc'*dCzu{'3. Frigiditatis, Marries again^ hath^
Iffue by the fecond Wtfe^the firft Living, Queft. Whether that
Iffne be a Bafiard ? - ,
^y. A Cafe of Remark touching this SuhjeB adjud. in Ire-
land.
A'S T A R D^ Baft ar dm J Nothus.Spurius^ Filius Na^
turalisy Filius Po^uliy Filius nulltm^ Inceftucfus ;
Adulterinus^ illegitimo coitu Progenitus. Baftard is a
(a\ Caff am dt ^^^"^^^ ^^^'^^ Baffardd Britttfli h yet fome are of opinion that the
confutt.Bur- ' ^^^^ t ^afiard ] hath its derivation from two German words
gmd. p. I ii5. L ^^^-^ ^''^ 1 ^^"^^ Js, Degeneris ingenij. Q^ an non e Grac, BafTaris,-
ib) Terms of i.e. Meretrix vel Concubma. Baffarddind Filius Naturals are both
Baflarr?* ^"^ ^^^' ^^fi^^'^ '^ ^^^^ ^^^^ <^^ Female that is begotten and born
20 H.V p.*^* ^ ^"^ VVoman not Married, fo that the Childs Father is not known :
jW/<//lr accord- ^V order and judgment of Law, for which reafon he is called Filius
ing to ulpianus Popult (b). ^,,. \^..l^'','
Wormtf '*^'* C2 •> Bafiard and Mtlier are oppofed each to other at the Common
(f) Ibid.' verb. ^^^> Otherwife at th^ (;««(?« Law. For at the Common Law by
miier & Lit. Mulier is meant and - underftood one that is lawfUlly begotten and
Tenures, lib.3. born, and therefore where they are compared together we (hall
Ot^btrcents *^"^ ^' ^^^^ ^^^ ^'^^^ addition to them Bafiard eigne or Elder, and
(d) Si. 9 ri. d. ^^^^^'^^ P^^^y?^^ f>r Younger i and by the Commonh^w he or fhe that
c. 1 1. and is born before Marriage celebrated between the Father and Mother,
Smith.dc Rep. is called a Bafiard ? and by that Law^ a Child begotten and born
xatfV^^' ^* ^^ ^ Woman out of Marriage, by one who after Marrieth her, is
(efchm. 1.7. "^^i^ ^^ ^^ "Of ^ 7V/«//er but a Bafiard (c). This word ^Multer^
c. I. & Britt. feems to be a word corrupt from Meltor^ or the Fre«c/& \_Melieurj
c. 7. & Skene fignifying at Common Law the lawful IfTue, preferred before an
verb' Mulfe. ^^"^^ ^^°^^^^* ^°^"" "^"^ ^^ Marriage (d). -But by G/^«<r;;^ fuch
ratus filius. ' i^^^vtul Iffue fee ms rather Mulier thm Melior^ becaufe begotten
Vid. Co. on a Mulier e J zud not ex Concubma i for he calls fuch iffue, Filios Mu-
Litt. fo.i7oi../f>r^/o/,oppQiingthem to BaHards (e) Quia Mul tens appellatione
?f f Bra'a lib ^^^^ continetur^ I. Mulieres i^. & ibid.gloff, De verb. fign.
•5. cap ip. ' ^3') '^afiardy\_Bafiardia] at the Common Law figniheth a d?-
(^) Kicchin fed of Lawful Birch objeded to one begotten out of Marriage (/}.
fo. 54. which Law doth diftingui(h Bafiardy into Special and General {g)»
9 H d fr* "^^^ '^^^'^. '^l^^^^o'^ ^""g only a Certihcate (-6) from the Bifliop
of the Dioce'fs to tlic King's Juftices, after juit enquiry made whe-
ther
4
and BaftarJy, aj^
ihtx the Party enquir'd of, be Bafiard or not, upon fome qucflioii
of Inheritance j and the former being only a Suit commenced at
Common Law againft him that calls another Baflard •■> This being
called Bafiardy Jpecial^ becaufe Bafiardy is the Principal and fpe-
cial matter in Trial : As the other is called Bafiardy General^ be-
caufe Inheritance is there the chief thing under debate and in con-
teft i By both thefe fignifications Bafiardy at the Common Law
feems to be taken only for an Examination of Trial, whether a
Mans Birth be illegitimate, and fo does but rather imply what it is
not, then exprefs what it is (/). Which (according to a better De- ,p. yy g^^
finitionj is an unlawful ilate of Birth, difabling the Party to fucceed tit. Bafiardji
in Inheritance. . nu. 29.
(4.) It appears by what hath been faid, that a Ballard is one
that is born of any Woman, fo as the Father be not known ac-
cording to the order of Law (k). So that if any Woman hath a (k) Co. 8.102.
Child before her Marriage, it is z Bafiard : And though the Fa- 6.65. Tup. Lltr.
ther thereof after marry the Mother, yet in the Judgment of the ^^^'
^ommon Law it is Ihll a Baftard, but at the Canon Law it is
otherwife as aforefaid (l\ If one marry infra gradus Maritagij Q) Sr. 20 H. 5*
and hath thereby llTue. Qu. whether it be a Baftard or Mulier in ^- ^' ' "• ^'
cafe Divorce doth after thereupon enfue (w). If there be IlTue by 3»-Co.onLtr.
a fecond Husband or Wife, the former then living, fuch liTue is a (w/ 4(5 Ed. 4.
Baftard (w). A Woman Eloping from her Husband, and living 29. & Bro.
in Avoutry (her Husband being beyond Sea that he cannot come ^^^' 43- &
at her j having IlTue in this time i this liTue feems to be a Baftard: ^^^ Jo^Ed.^?.
But by the Common Law, if the Husband be infra cfuatuor maria 14. 7 \\. 4. 9.-
(he ) within the jurifdidion of the King of England^ and his Wife 18 Ed. 4. 26..
have IlTue in his abrence,No proof is Admiflablc to prove the Child
a Baftard, unlefs there be an apparent impoffibility of Procreation
in the Husband > in which cafe fuch liTue, albeit born within Mar^-
liage, is a Baftard (u). And by the Civil Law, if the Husband be (») 43 £.5.19.
.fo long abfcnt from his Wife, or by no polfibility of Nature the "^ It' ^' ^'
Child can be his, or the Adulterer and Adulterefs be fo known to .. e!'?!* o.
keep company together, as that by juii account of time, it cannot i H. 5.7. 19 H.
fall out to be any other mans Child but the Aulterers himfelf, it is ^'. '7' Co. oq
accounted to be a Baftard : And vet in thefe very cafe within this Y^'^'^\' '
Realm, unlels the Husband be all the time of the impoilibility of of &c. par! 2.
Procreation ( as afoielaid ) beyond the Seas, the Rule of Law will cap. i. Seft 2,
hold true, Vater is efi quern Nupn^ demonfiant (f). (q) S'w walur
Note in Debt upon an Obliaation by Cook Chief Tuftice : And fo ^"^f ^^ "^^l^' .
was the Opinion ot the Civilians, 1 hat a Dilagreement to the Mar- ^^-^ poft.dift.
riage had under the Age of Coni'ent, at the Age it ought to be pub- cafe' in ZyTaj s
lilhed in Court i. otherwife the Iftue may be Baftarded. For a Dif- R^P-
agreement in Writing is not a fufficicnt Difagreement for a good
Proof (^ J. (50 The
480 Of BafiarJs.
( 5. ) The Law hath given fevcral Appellations for the diftin^i-
en of Baftards according to the different conditions of the perfons
ef whom they were begotten > As when they were begotten by
perfons of a fingle and unmarried Eftate, and of fuch as were kept
as Concubins, the Civil Laiv called them Filtj Naturales v if be-
gotten of (ingle Women, not defign'd for Concubins, for fatisfadi-
on of prcfent Luft> then they were called Sfunj •, if begot-ton of
fuch as the Law ftyles Scorta^ or common Harlots by publick Pro-
feffionj then they were called Manzeres • if begotten of Married
VVonienj then they were called Notbi: if begotten between Af-
eeiidents and Dekendents, or between Collati;rals contrary to the
Divine Prohibition , then they are called Incefiuous.
( <5. ) Bajtard) fo ftains the Blood, that the Baftard can challenge
neither Honour nor Arms j and (b difables him, that he cannot pre-
tend to any fucceifion to inheritance. ThiC Temporal and the Ec-
clefiaftical Laws with us do not differ as to matfer of Baftardy^ but
fomething as to the profecution thereof i The Ecclefiaftical Law
brings it two ways to Judgment, Incidsntly and Frincip^lly i, the
Common Law makes two forts thereof. General and Special. Inci-
dently at the Ecclefiaftical Law, when it is pleaded in Bar to a claim
cf fomething in right of Nativity: Trindfalljy when by reafon of
fome llanderous and reproachful Speeches, it is brought before the
Court as the principal matter in Judgment to be alkdged and pro-
ved, that thereupon Sentence may be pronounced accordingly by
the Ecclefiaftical Judge, Ad Curiam enim Regiam non pertinet ag-
ir) GJafivil. nofcere de Bafiardia (r). General Bafiardy at Common Law, is
lib. 3, cap. 1 3. {q called becaufe it is in grofs objeded in Bar againft a Man to diP
appoint him in the principal matter of his Suit. Which, becaufe
it is of Eccleiiaiiical Cognizance, if lent by the Kings Writ to the
Ordinary, to enquire whether the Party charged with Baftardy
were born in, or out of Lawful Matrimony -, And as the Ordinary
tinds the truth of the matter upon due examinations, fo he pro-
nounceth accordingly in his Conliftory, whereof he returns Certifi-
{s) Ridiy, ubi cate to the Temporal Courts (s). Special Bafiardy at the Common
(upra. Law, fecms to be only tliat, where the Matrimony is confeft, but
the Priority or Pofteriority of the Nativity of him, whofe Birth is in
(t) Ibid. queftion, is controverted Cf.\
General Baftardy ought to be Tried by the Bifhop, and not by
(/; 1 8 E. 3.40. the County (I). But Baftardy in this k\^t cannot be tried by the
Ordinary otherwife than by vertue of the King's Writ, on fome
(-'*) ^" '• ^^' Suit depending in the Temporal Court (m). "When Iffue is joyn'd
jo^Efa^a'j. ^'^ Baltardy, before it be awarded to the Ordinary to Try it,
b. per Jbo^^. Pioclamacion thereof is made in the fame Court, and after IlTue it
is ccrtiried in Chancery , where Proclamation is made once a
Month
^
and BaftarJy, ^g j
Month for three Months, and then the Lord Chancellor certiHes it
to the Court where the Plea is depending •, and after it is Proclaim-
ed agam in the fame Court, that all fuch whom the faid Plea con-
cerns, may appear and make their Allegations before the Ordinary
(n); whofe Certificate of^^/^r^' is nothing to the purpofe unlefs C«) 'oH.^.
It come in by Procefs at the Suit ot the PartiesC^;. And this Rallar- "P- ' '• ,
dy ought to be certified under the Seal of the Ordinary for it is ^'-^ ' "'^'^^ *
not fufficient to certifie it under the Seal of the Commiffary (p). (p) 20 H. <5. i.
And although the Defendant be certified a Baftaid by the OrJmar^',
yet the Certificate (hall lofe its force, if the Plaintiff be afterwards
Nonfuit, for then the Certificate is not of Record (^). (f) 18 E.3.54.
In the Cafe of Elborough aga.mi\Men, it was faid by Crook.tlut
for calling one 5^/^r^ generally, there is not any fufficient Ground
of Adion at the Common Law, but if there be any fpecial Lofs
thereby, it (hall be a good ground of Adlon at the Common Law,
as if a Man be upon Marriage, or in treaty for the fale of Land,
whereby his Title is difparaged. Doderidgejuaicekid, That the
word Bafiard is generally of another Jurifdidion, atid belongs to
the Ecclehaftical Court to determine what (hall be Baftardy, and
there Judgment is given for the damage, which the party had in
his birth, and for that their Entry is e^uia lajisefi natalittts. And in
this Cafe the Chief Jufiice faid, that generally to fay J, S, is a Ba-
ftard, J, S, hath not caufe of Adion given him thereby j but if
there be a Temporal caufe avcrr'd,the Common Law may proceed
therein i for though Originally Bafiardy be of the Ecclefiafiical Ju-
lifdidHon, not Triable at the Common Law, and therefore as in its
general nature it is of the Spiritual Jurifdidion, fo being by its
generality no ground of Acaion at the Common Law, yet if one be
to fue for a Childs part, or fue for the Adminiftration of his Fa-
thers Goods, and this be fet forth in the Declaration, it will main-
tain an Adion at Common Law. Doderidge Juftice faid. That to
fay generally that one called him Bafiard, is not ground of Adion,
if he doth not (hew fome fpecial Lofs thereby, as when a Woman
brings her Adion, and fays that (he was in Treaty of Marriage, and
that the Defendant called her Whore, this will not maintain an
kOXoxi unlefs (he fay withall, that by reafon of thefe words (he lo(t
her Preferment •, but Chamberlain Juftice faid, to call a Woman
Whore is at this day a fufficient caufe of Adion for her, for that it is
puni(hable by the Statute i He alfo further faid, that if a man Libel
in the Ecclefiaftical Court, that he hath Lands by defcent, and that
J. S» call'd him Bafiard, they may not proceed rhere i or if they
do, a Prohibition lies. He further faid, that for calling a Man Ba-
fiard generally, without fpecial Lofs alledged, Adion (hall be main-
tained, and cited a Cafe in 6 EliX,, Dyer. Where a Man recovered
great
^82 Of BaJlarJs.
great Damages, for that the Defendant had faid that his Father was
B!^.Elbor^uib a Baprd ; and cited alfo one Nelfon and Stokes Cafe in 5 Jac.
vcrfiis Al^(n, where the PlaintitTdid not alledge any fpecial caufe of Adion, and
Roll. Rep. yet recovered.
(7.) By the Civil Law fuch as were born in the beginning of
tlie eleventh Month next after the deceafe of their Mothers Husband
were to be accounted legitimate, but (uch as were born in the end
thereof, were to be accounted Baftards, Juth. Coll. 4. yet the Glofs
there relates to a matter of Fadt contrary to this Law, and gives us
an inftance of a Widow in Par/s, who was delivered of a Child the
fourteenth Month after her Husbands death, yet the good repute of
this Womans continency prevailed fo muchagainft the Letter of the
Law, that the Court Judg'd the caufes of Child-birth to be fomc-
times extraordinary, the VVoman to be Chaft, and the Child Legi-
timate. Hoc tamen in exemflmn trahi facile non o^ortet^ as the
Glofs there concludes.
(%.) By the Common Law, if a Child be born but an hour after
the Solemnization of Marriage, it ihall be the Husbands, though it
were begotten by another Man, who was not the Mothers Husband^
and may be the Heir of him who Married the Mother but a Day
{k) Term of before the Birth of fuch a Child {u\ for in that Cafe he is not re-
Lavv. Verb. • puted a Bafard , who cannot inherit Land as Heir to his Father,
Baflardy. j^^^ ^^^ ^j^y p^rfon inherit Land as Heir to him, but one who is
(x) Littl.Sea. Heir of his Body (x), Otherwife it is in cafe the Child were begot-
^oi. Fitz. B. ten by him who after the Birth of the Child doth Marry his Mother j
20' For in that Cafe notv^ithftanding fuch Marriage fubfequent to 'the
Birth, the Child is reputed a Ballard in the Judgment of the
Common Law, as being born out of Wedlock, though according
to the Ecclelialhcal Law the Child in that cafe is reputed as Legiti-
CO S't. 20 H.?. j^^j.^ ^^^^ gjjj. j^ Qj^g Marry a Woman, and die before Night,
Co. on Lir.^' without ever bedding her, and (he after happen to have a Child,
244. within poffibility of conception in refpedt of time computable from
p^iiafuMeqnens fuch Marriage, it feems it Ihall be accounted his Child, and Legiti-
Matrimmurn ^^^^ ^^y
prJcedmim. (9-) ^^ ^ Child be born within the tenth Month ( computing
(^) Vid. Engl, thirty days to a Month ) next after a Mans death, it (hall be reputed
Lawyer 117. his Child as a A/w/zer i but the mort natural time is nine Months
and ten days (computing twenty eight days to the Month J which
is forty Weeks i or any day in the tenth Month may be .natural
r ' c f o enough (a) Alfo the Children begotten under a fecond Marriage
Litt. 12:^. ' after a Lawful Divorce from the former, are Legitimate, and .not
w/pp's Cafe. Baihrds (h). And the Child wherewith the Mother is vifibty
M. nJ-ic.BR. big vv^hen fhe takech a fecond Husband , (hall be i;eputed the
Qj Co. 4. 2^. Q^ii^ q£ ^Yi^ former Husband, though born after. Marxiage . with
the
and Baftardy, 485
Kthefecond. Otherwifejif at her fecond Marriage (he were (o pri-
vily with Child as that it could not be difcerned > underftand it with '
this limitation, if by poiUbility of nature it naay be fo {c}. And if (<:) 21 £.3,^0.
-, a Widow take another Husband, within ten days next after the
/death of her former, and be delivered of her Child eleven days be-
fore or after forty Weeks from the death of the faid former Husband,
it (hull be reputed the Child not of the former, but of the latter
Husband {d). And in one Thecker and Buncombes Cafe it was Ad- W i8 E. r.
judged that a Woman may have a Child in 38 Weeks,and that by Cdm.Bf^^.Cafc
cold and hard ufage, flie may go v;ith Child above forty Weeks i '^s* •
which was mention'd by the Court in the Cafe of one Owen againil
Jevon in an Adtion of the Cafe for faying This is the Whore that
my Man Chegat a Bafiard on •> and upon a Verdid for the Plain-
tiff it was moved in arreft of Judgment, that the words are not
Adionablc^becaufe there is no fpecial lofs or damage alledged by the
Plaintiff \ and that in one Lightfoot\ Cafe againft Pigot it had been
Ruled that an Adlon lies not for faying a Woman had a Baftard ;
but it being Argued on the other fide, that the words are Adiona-
ble, becaufe if they were true, the party of whom they are fpoken
is punifhable by the Statute of 7 Jac. with corporal puniftiment*
Judgm.ent was given tor the Plaintift, Niji (e)» (OTnn. ft;
(10.) ThepuniQimentofa Woman that hath a Baftard, that 2?V;BfR.ow7«
may be chargeable to the Pari(h,is the Houfe of Correction for one verf. Jevon,
year by the Statute (f). Styl. Rep.
(11.) Although in the Judgment of the Common Law a Bafiard C / ) 77jac.c.4.
be reputed quafi nulim Fitlius (g)^ infomuch that, if being feized ^^j ^[^' ^^^'^^
of Lands in his own right, he die without liTue of his Body, ^^^^
they may efcheat \ yet even by that Law the Badard in refped of
his Mother is faid to be a Son (/&}• But in refped of the Father he
is faid to be nullms FiUus^ and therefore in the Cafe of Ralfh Ha-
w^W and the Udy Anne Vowes his Wife in a Writ of Partition,
it was held, that if the Mother difpofe of all her Lands holdenin
Knights Service, to her Ballard Daughter by conveyance in her life
time, that the fame is out of the Statute of 32 H.8. becaufe fhe is
• but a meer ftranger to the Father, becaufe nulUus Ftlia !. and the
faid Statute fpeaks of lawful generation. And in the 39 Ed. 3. 42.
in a Praecipe, where a Baitard was named Filius J.S. the Writ for
that reafon did abate (/)• For the fame reafon alfo it is, that in a ^.^ yjj^ j^ £1^
conveyance by a Father to his Baftard San,natural affedVion is not a Dyer 296. and
fufficient coniideration i for that he is a Stranger in Law although 14 El. Dyer,
he be a Son in Nature {k ). And yet it feems if a Grant be made J i ^^^'g]|'^^ °J;
to a Ballaid by the Sirname of him who is iuppoied to beget him, ^^^, '^-^^^ ^.^
it is good, if he be known by fuch Name, and yet in truth he is £i.i)yer. ^n^.'
nullius Fillms* And if Husband aixi Wife Divorced car^fa Tricon- mfdsCde.
D d d d -. traciiis
484 ^/ Baflards
traBusi the Iffue hath loft his Sirname, for Cognomen Major urn efi^
ex-f anguine traBum \ and the ilTue now is Balhrd and nullms Fi-
lms : yet becaufe he had once a lawful Siniame, it is a good ground
of reputation, to make him a reputed Son, which is a good xNamrf l
/) Co.6 par. ^^ P^rchafe (I). And it hath been refolved that a Child begotten by\
(Ss.in Sr. Moiu a lecond Husband (living the former) of a Woman divorced from
Finches Ci(c, the former caufa FracontrzBus, is legitimateand no Baftard (w):
El.Coke pa 4. f ^^ !'\ another Cafe, that a Child begotten after Marriage fo-
29 BintiT'g and J^^'^^^ ^ ^"y^^ annos nubiles, and for that caufe after divorced
L'pingmCsC,\ IS illegitimate and a Eaftard (n). *
^al^TvLVc ^^^'^ •^\^^^'' ^' ^^ ^^^'^ ^"'^ ^'^5' ^- ^^^^r forty Weeks and
42,45-K^v''5 C. ten Days is delivered of a Daughter. The Queftion is, whether
the Daughter Hiall be Heir to her Father, or a Baftard ? The Affir-
mative prevails, and fucha Child may be lawful Daughter and Here-
to iicr Fatlicr •, tor a Vofi-natus, that is born after the forty Weeks
may as well be an Heir as an Ante-natus that is born at the end of
(even Months J And a Child may be Legitimate, although it be
born the laft day of the tenth Month after the conception thereof
computmg the Months p^r menfesfolares & non /«»^m i according
to the report given upon Oath by the learned Phvficians in Alfo^^
Ca(c Co). If a Man hath IfTue born by his Wife forty Weeks and
lid Eo^trfl^ :^^^^t' ^!^^ '\^^^^ 'S born the ninth of Jamarj next follow-
Care.cr.2.par. "^g) that Iffue Ihali be held Legitimate, for it may be Legitimate
g2,. Godb. by Nature, aiid jr feems the Common Law doth not limit any
.8. the fame cer^tanyui^e for Legitimate Infants to be born, (p) Upon evidence
^lichjac. B.R. ^M'f .' "1^'^^' ^^'^"^ ^ the Heir of one Andrews, it was refol-
ftould (being hrfi Iworn) ,n that cafe inform the Court upon their
<Jaths, whether according to Nature fuch lifue may be Legitimate,
aiid they faid that the exa^ time of the Birth of an Infant is 280
l>'ays from the conception, •viz,, nine Months and ten Days after
^'^TK'""^ '"f^""^^"^ "^y ^^^ Solar Momhs,^iz. .0 days to
Monrf "'^-^ but it is Natural alfo if he be born any Le of 10
Months, v,z., in 40 Weeks, for by fuch account 10 Months and 40
Weeks are all one, but by accident an Infant may be born after the
Braa lib < f f .^%^^'f befo^^: S^ partus nafcalur p ft morum Patri ( cf:u
fojjl ejfe defuna,fiUHs,&^hocprobato,tans dtu potern Bafiardis.
C13.; it IS agreed on all hands that e^^/?^r^y- is an Ecclefiaftfcal
Caufe and of i^cclciuftical Cognizance ; and therefore if Bal^ardy
hep^e.dedmd,fabihtyofa Piantiif, the fame (hall be Tried by
■ W .n T "'''' '^ '^' ^^-^"P^ "^^'''^'^ '' be in a Real Adfion rela-
ung to im,::r i-ciioaal rdating to Slander, or otherwife
where.
and Baftarcfy,
j where Adion on the Cafe will lie > But if it be pleaded, that the
b Plaintiff was born at fuch a place before the Marriage folcmnized,
? and fo he is a Baftard : This the Common Law calls a Special Ba-
« ftardy, and (hall be tried by a Jury at the Common Law, where
jhe Birth is aledged \ (r) So in the Duke of Suf oik's Cafe of
partition, where fpecial Baftardy was pleaded, and 'iflue thereupon ^'^ "^^^ ^?'^'
taken, the Trial was awarded to be by a Jury oi London, (s) And rbbo? of s/rl!
where in an ^lon upon the Cafe brought for calling one Baftard, u MiraUa.
the Defendant juftified that he was a Baftard \ it was awarded, ^^^ ^'^- 7 E <^»
. that it Oiould be Tried by the Country, and not by the Ordinary! ^^^'' ^•
I It) Which feems fomcthing Taradoxical , that if Baftardy be . . ^ '
pleaded in Difahiltty of a Plaintiff, then it fiiali be tried by the % Hobkel
Bifliops Certihcate i but if it be pleaded, tiiat the Plaintiff was born
j in fuch a place before the Marriage, then by a jury: The former
i whereof is faid to be a general Bafiardy i the other a Jpecial Ba-
ftardy i whereas in truth they feem both only to differ in this, that
the former feems to be a general relating to the Plaintiffs condition
in rcfpe(3: of his Dlfabiltty ; the other feems to be a ffectal relating
' to the circumftances of Place and Time of his Nati-vity, but both
referring to his Baftard y.
(14.) If a man, that is ordered by two Juftices of the Peace to
keep a Baftard-Child (he being according to the faid Order the re-
puted Father ( ftiall appeal from the faid Order to the next Quarter
SelFions according to the Statute of 18 EiiZ,. and being there dif-
charged, and the faid Order repealed, fhall yet afterwards at another
Quarter-Sellions of the Peace upon re-examination of the matter be
ordered according to the firft Order-, in that cafe it hath been
held by the Court, that the fecond Seffions had no power to alter
the Difcharge made by the former Seffions. (u) And in another
Cafe it hath been refolved, that before the Statute of 3 Car. c. 4. b.II 248^Cro!
ihe Juftices at the Sefiions had no Authority to intermeddle in the i.par.p t/^^ow
Cafe of Baftardy, till the two next Juftices according to the Statute Cafe. ibid. 2 5 5.
of 18. Eliz., had made an order therein ; As alfo that by the Statute ^^^'
of 3 Car. th€ Juftices of their feveral Limits are to make an Order
in Cafe of Baftard y.
C 1 5.) C. commenced an Adion in the Spiritual Court againft Tr. (^^) pafdi. 19
forfaying that he had a Baftard W. the Defendant alledged in the faid Car.B.R.S/df?a
Court,that the Plaintift" was adjudged the reputed Fatherof a Baftard Cafe. Cro. i,
by two Juftices of the Peace according to the Statute whereupon he ^^^' 5'^*
fpake the words. The Spiritual Court accepted of his Confellion,but
would not allow of his Juftilication \ whereupon he prayed a Prohi- (>) Pafch. 17
bition,and It was granted (y).It is not denied,but that if the Spiritual g^j ^,f?',^'2fc
Court try a thing that is of Temporal Coguizance,a Prohibition may cro 2.par.525,
■lit, although all the Caufe were originally Sphitual, as wasreiblved anddaj.
D d d d 2 in
48^ Of Bajiarc/s
fr'iCook inKennsC^Ce (z,), in which Cafe it was iikewife refolved, that
par 44. ace!' where the Caufe is Spiritual, there the Spiritual Court hath Jurif-^
K'w's Cafe. diction ; and in the Cafe between Banthg and Lephgwel it was
{a) Mich. 28 refolved, that the Judges of the Common Law ought ( that is
\o?lTnitng%c ^^^ ^ordiii the Pveport ) to give Faith and Credit to the Pro{
UpingwiriCi. ceedingsof the Spiritual Court, albeit it be againft the Rcafon of
Hugh. Abr. their Law (a).
verb. Baftard. ( 1 6.) If a man having a Wife, take another Wife^and hath If-
m 18 H.5 ar. ^^^^ ^^ ^^^' ^'^'"^ ^^^ ^^^^^^ ^^^^' ^^^^^ '^^^ ^ ^ Baftard (h), for
18 E. 4. 30. b* ^^^ Second Marriage is void (c). If a man marry one within the De-
Co.7.Kenn.44, gnes prohibited, the IfTue between them is not ( by the Common
Ad'^l'^^' ^'^' ^^^^ ^ Bi^^ard, until there be a Divorce, for by that Law the Mar-
( dliil] 6. "^^^ ^^ "°^ ^^^^ ^'^^'^ ^°'^ ^'^^^ ^^° ^^ ''S although the Brother Marry
34. b. ' * ^^e Sifter) (e) If a Man hath ifTue by ^.and after Marries her, yet the
(t) 18 H. ^. 52. IlTue is a Baftard at the Common Law (f). An Ideot may confent
?ff*'*F'^' ^^ Marriage fby the Common Law) though he were an Ideot
i4.b.11 H 4^84 ^*^°*^ ^*^ ^^^^^^' ^"^ ^^^ '*^"^ ^y ^^^^ ^^^ ^^ Legitimate (^), If tlie
18 E. 4. 90'. Husband hecafirated, (o that it is apparent that he cannot by any
?9 £. g. 31. b. poflibility beget any liTue, and his Wife have IlTue divers years after,
§8 Afl.24. ^ it fhall be a Balhrd, although it be begotten under Marriage, for
B^R.i "rJrVnVf ^''^'^ ^^ ^^ apparent that it could not be Legitimate (h).
&' a'efi, . (170 By the Law of the Land a Man cannot be a Baftard, who
(b)mii4]ic. is born after the Efpoufals, unkfs there be fome fpecial matter in
s^rnSJrSr.r ^"^ ^^^^ ^'^' ^^ ^ ^^^"^'" ^^ ^^S ^^'^^^'' Child by J. and after J.
vone ^Eglrton ^^''y ^^'^ ^nd the Ilfue is born within the Efpoufals i in this Cafe
Plaintiffs, and ^Y ^^e Common Law the IlTue is Mulier, and not Bafiard (k\
two Himns So if a Woman be big with Child by one Man, and afterwards
held by the ^'^^» ^"^F *^^ '"'^ ^^ ^^'^"^ ""^^"^ Efpoufals, and cannot be held the
Clur-cellor, 8i ^^^^e of him by whom (he was with Child, becaufe that cannot be
Mmamt; byit certainly known C/J 7 and fo it is although the IfTue were born
Hobm e coQ- within three days after Marriage (m^,
CO'40 E.^ \6. . r^ ^O If a Woman Covert hath IlTue in J'voutrj.yet if the Huf-
b. 2 1 E. 5. 3p. t>and be able to get a Child.and be infra quatu:r fnaria.tht LTue is no
1^9 £.5.31. ?i. Baftard Cw). If a Woman Elo^emdiXivcmA^outry with another Man
T29 virmli i''''"^ '^^^^'^^^ '^^^ ^' ^°"' "' ^^^<5«?r)', yet it is a i^«//^r by the
aod roii. Common Law (0). But then the Husband muft be ivfra quatmr
(O 44 E- 5- ^^'^^^ ^0 as that by intendment he might com.e to his Wife, other-
iz. b. 45 E. 3. wifi the Iftbe is a Bafiard ' f). But if a Woman hathllTue, her Huf-
m I H <5 a ^^*'*^ ^'^'"^ beyond Sea for feven years together before the lITue was
contra. 44'Ed. ^^"""^ ^"<^^^ ^'^^e is a Baftard at the Common Law (q). If a Feme
^. 12. b. 45 E.
?. 28. contra. 18 H.5.3.i.b, (w) 18 E.4.?. C^O HiI.T4 J^c.Cam. Sceflar. ubi fupra. (0) i H. 6,
§. 43 L.3.i8.b 20.I3 E.4-3Q'Hil.i8 Jac.ibid.Cani.Stcllat.Q) 40 E,3.2o./ifi.8.(7) 18 M.5.17.
Covert
and BaflarJy. 487
Covert hath I{rue,her Husband being beyoiid Sea fcr lix years before
the IfTue is born, it is a Baftard at the Common Law (t). If a (f) i8 H.^.54,
Woman hath llTue, her Husband being within fourteen years of age,
the IlTue is a Baftard at the Common Law. {^) qNare. f^.
(19.) A. hath llTue by 5. and after they intermarry, yetthellTue ' '^' '
is a Baftard by the Common Law > (n) but it is a MuUer by the (n) 47 E.g. 14.
Civil Law (0). If the Parents be Divorced caufa confanguinitatis^ b. u H.4.84. *
they bei«g ignorant thereof at their Marriage, the Iltucs they had ^"^ ^ * '^4- 84-
before, are Baftardsat the Common Law, and Muliers by the Civil f//"®'/ ^' ^^'
Law (f). If a Man hath IlTue by a Woman, and after Marry the (p) \^^,'a.2q.
fame Woman, the IlTue by the Common Law is Baftard, and Mti-
lier by the Ecclefiaftical Law (of) : Likewife if a Man efpoufe a Wo-
man big with Child by another Man, and within three days after
fhe is is delivered of a Child, by the Common Law this is a zVfulier^
and by the Ecclefiaftical Law a Baftard (r). If a Woman Elo^e and
hath liTuc in Adultery, fuch Iffue is a Mulier at the Common Law, ^^^J^^f' ■
and a Baftard by the Ecclefiaftical Law (s) , yet if the Woman 03 iq'e.'a. ;o,
continue in Adultery, and hath IfTue, fuch IlTue are Baftards even by 43 E. s.i^'.b.'
the Common Law (f). But by the Law of the Land a Man may ^'^'
not be reputed a Baftard who is born after Efpoufals, unkfs there be ^^'^4° ^'S- ^^'
fome fpecial m.atter in the Cafe as aforcfaid (u). But if a Man who . n t. . .
hath a Wife, doth during her life take another Wife, and hath liTuc
by her, fuch IfTue are Baftards by both the Laws, for the fecond
Marriage is void (x). (*) 18 E4.30J
(20.) A Divorce caufa fr^cmtraBffs doth Baftardiie thcllTue, ^' j,
(y) (6 alfo doth a Divorce c«7«j^ Confangmmtatisiz, ■>'<> likewife if the isV.^.ai.
Uwoxcthtcaufa AjJinitattSj it doth Baihrdiie the llTue ■, (/?) and OJ47 E. 3. pi.
the Law is the fame, in cafe the Divorce ht caufa Frigiditatis (b), A ^8- '^ H.6.34.
Man hath IfTue a Baftard, and after Marries the fame Woman, and y^i^'' £«3'78.
conr» 20 iL r«
hath IfTue by her divers Sons i and then devifeth all his Goods to his Bafiardy 21.
Children, ^whether the Baftard fhall take by the devife ? But if the cur.
Mother of the Baftard make fuch a devife, it is clear the Baftard fiiall ('^) ^^^ 47 E.g.
take,becaufe he is known to be the Child of the Mother c). ^^^ ^^' ^^ ^•^*
(21.) B. contrad-ed himfelf to A. afterwards A. was Married to (^c)Morts Rep.
F. and cohabited with him, whereupon B. fucd A. in the Court of
Audience, and proved the contra6t, and Sentence was there pro-
nounced, that (lie fhould Marry thcTaid B. and cohabit with him,
which fhe did, and they had IfTue CB. and the Father died : It was
argued by the Ct^iltans^ that the Marriage betwixt B. and A. was
Toid, aiKl that C.B. was a Baftard, But it was refolved by the Ju-
fiices-ithdX C. the IfTue was Legitimate and no Baftard (d), (rf) Mich. 26
(-2 2.) The Cafe was wherein a Man was Divorced caufa Frigidi- and 27 Eliz.
tatfs and afterwards took another Wife and had IfTue ; it was Ar- •B'»»f'»/| Cafe*
giied by the Civilims^ and aHb by the Jwfiices, v/hether the IfTue ^■^*''* * *^'P'
wer€
488 Of BarftarJs
were Baflard or not, it was adjudged that the IfTue by the fe-
cond Wife was not a Balhrd s For that by the Divorce the
Marriage was diiTolved a 'vinculo Matrimonij, and each of them
might Marry again : But admit that the fecond Marriage was
voidable, yet it ftands good till it be dilTolved , and fo by
coniequence the liTue born during the Coverture is a lawful
(&) Mich. 28 y s n Tr ... ^, ,.
Eliz in Car. (23 J Upon an Information m the Canie-Chamher in Ireland
Wardor.Aforr/i againtl the Bifliop of K. and C.B. and others, that by Pradioe and
and mbbers Combination,and by undue courfe of proceedings they endeavoured
Rep Mich ^9 ^° P^'°^^ ^^^^ ^^''^ ^*^- ^"^^'^^^ ^'^^ ^^'^" ^^fore reputed a Ballard ) to
JacEnleCouft t)e the legitimate or lawful Son and Heir of G. B. Efq^ to the dif-
de cafile-cham- hcrifon and defamation of E^B. who was the fole Daughter and Heir
tir en Ireland, of the faid G. B. And upon Ojet of this Caufe the Cafe appeared
Davis Rep. ^^ ^-^ j|^|g^ ^-^^ ^^^^ twenty fix years before the exhibiting of
this Bill, the faid G. B. had llTue the laid C.B. on the Body of one
y. D. who during the life of G. B, was not reputed his Wife, but
his Concubine ■■> and the faid C. J5. for all the time aforefaidjWas oit-
ly accounted the natural Son of G. B. but not for legitimate. After-
wards, 'viz. ilxteen years after the Birth of C. B. ( his Mother be-
ing then living ) G.B. took to Wife a Lady of good Eftate and Re-
putation, with the affent of her Friends, by whom he had lifue the
faid E B. and died. After the death of the faid G.B. the faid C.B,
_ his reputed Son ( nor his Mother who was yet living; faid nothing
by the fpace of nine years, but at laft they pradiced and combined
with the faid Bifhop of iiC. being of their Kin, and with many 0-
thcrs to prove the legitimation of the faid C. B. by an irregular
and undue courfe, to the intent to Baitardize and dilinherit the faid
E. B, according to which pradice and combination, the Bilhop
without any Suit commaiced or moved in any of the KingsTemporal
Courts, or any Writ diredied to him, to certifie Baihrdy or Legiti-
mation in that Cafe, and f which is more ; without any Libe!
exhibited in his Eccleliaftical Ccurt,touching that matter,of his own
will and pleafure, privately, and not convocatis con-vocandis, nine
years after the death of the faid G. B. took the depoiicions of many
ivitneiTes to, prove that the faid -G. B. twenty nine years before had
lawfully married and tot^k to Wife the faid J. D. Motlier of the
faid C. B. and that the faid C. B. was the legitimate and lawful Son
and Heir of the faid G.B And thefe depofitions fo taken, the faid'
Bifhop caufed tobeengrofs'd and reduced into the form of a folemn
Ad, and having put his Signature and Seal to that Inllrument* de-
hvered the fame to C. B. who .jpublidied it; and under colour of that
■2n(trument or Ad declared iiimfelf to be the Son and lawful Heir
of the faid G. B. SiQ, And tor this prad-ke and mifdemeanour the
faid
and BaftarJy, 48^
faid Bifhop of 7C. and others were cenfured , and thereupon thefe
points were Refolved (i.) That although all Matrimonial caufes
have of a long time been determinable in theEccIeiiaftical Courts.and
are now properly within the Jurifdidion and Cognizance of the
Clergy, yet ab initio tjon fuit Jlc, For caufes of Matrimony as well
as caufe Teltamentary were heretofore civil Caufes and appertain-
ing to the Civil Magiftrate, as is well known to all Civilans, until
the Chriliian Emperors and Kings, as an honour to the Prelates
of the Clergy, did grant and allow unto them the Cognizance and
Jurifdidion of thefe Cafes. And therefore the King of England^
who is, and of right ever was the Fountain of all Juftice and
Jurifdidion in all Caufes, as well Eccleliatlical as Civil, within- his
own Dominions, although that he allow the Prelates of the Church,
to exercife their feveral Jurifdidions in thofe Caufes which properly,
appertain to their Cognizance, ytt by the Rules of the Common
Law , he hath a fuperintendency over their Proceedings, with
power of diredion how they (hall proceed, and of rellraint and
corredlion, if they do not proceed duly in fome cafes i as is evident
by the Writs of feveral natures direded to Biihops, by which the
King commands them to certifie Baftardy ^ Excommunication^ Le courfe det
Trofe(fton, Accouflement en Loyal Matrimony.^ De admit. Cleric^, '^'■"' ^^ Legi*
de Cautione admittenda^ &c. as alfo by the Writs of Prohibition, ga^^rdv.
Confultation^ and Attachment upon a Vrobibition. (2 J It was Re-
folved, that the Queftion of Baflardy or Legitimacy ought to be
firft moved in the Kings Temporal Court, and thereon IfTue ought
to be joyned there ; and then it ought to be tranfmitted by the
Kings Writ to the Eccleiiaitical Court, to be examined and tried ^
there i and thereupon the Biftiop fhall make his Certihcate to the
King's Court i to which Certificate being made in due form of
Law fuch credit is given, that the whole World fhall be bound
and ftopt thereby. But on the other fide, if any Suit to prove
Baftardy or Legitimacy be firft commenced in the Ecclefiaftical
Court, before any Queftion of that matter hath been moved in the
King's Temporal Court, in that Cafe Prohibition lies fo reftraiii
fuch Suit. To this purpoie was CorbeVs Cafe cited, 12 Ed* 4.
Fitz.Confultatien <5.Sir Robert Corbet had Iffue two SonSyRobert znd.
Roger^ Robert tl^ eldeft Son being within the Age of fourteen
years, took to Wife Matilda with whom he cohabited till he
came of full Age, and they publickly known and reputed for Huf-
band Wife ■, yet afterwards Robert the cldeft Son doth difmiis
the faid Matild^ and (lie living, doth Marry one Lettice, and ha-
ving IlTae a Son by the faid Lettice, diesi after his death Leff^tff
doth publifh aiid declare openly, that ihe is the lawful Wife of
Roberty and that his Son was a MuUer and legitimate, Where^
epou
4^o Of Barftards
upon Roger the younger Son of Sir Robert Corbet doth commence
in the Rcclerialtical Court to reverie the Marriage between Letttce
and Robert., and to put Lettice to .(ilence. &c. wherefore Lettice
doth puTchafe a Prohibition > whereupon Roger fets forth the whole
matter, and prays a Confultation, which was denied him, and for
this reafon chiefly, viz.. for that the Suit in the Eccletiaftical Court
was to Baftardize the llfue between Lettice and Robert, and to
prove Roger to be the Heir to Robert ■■> and the Original Adion
of Baftardy fhall not be firft moved in the EccleiiatHcal Court,
but in the Temporal Court, Sec. And to make this point yet
the more clear two Cafes put by BraBon^ lib. 5. tit. de excepticnib,
c. 6. were remembred (i.) B. having Iflue of the Body of a
Feme-Inheritrix born before Marriage, under colour whereof he
claimed to be Tenant by the Courtefie, but being for that caufe
barr'd in Ailiie brought by him againrt A. he obtained the
Popes Bull , and by Authority thereof commenced his Suit in
the Ecclefiaftical Court, to prove his IlTue Legitimate, c^nod fa-
cere fton debuit, as 'Bracion there faith, and therefore Prohibition
was granted to ftay the Suit, (hewing the whole matter, Et efuod
pradiBus B. ad decepionem Curia nofira, d^ ad injirr»andttm
judicium in curia nofira faBum^ trabit ipfum A. in flacitum
coram 'uobis in Curia Cbrifiianitatisj authoritate Literarum Domi-
ni Pap^Cj ad pradiBum puerum legitimandum^ &c. Et cum ncn
. I . fojjint Judices aliofui de hgitimatione cognofcere^ nifi fuerit Icquela
' prius in curia noflra incepta per breve., d^ ibi Bafiardiee objeBa.^d^
pofiea ad Curiam Chri[tianitatis iravfmtjja, vobis prohibemus., quod
m placito illo ulterius non procedatis^ dec. And in the fartie Chapter
Brathn hath the form of another Prohibition, which makes the
difference before put more evident. Rex talibus judicibus:)Scc. Ofien-
[um eft- nobis ex parte A. 8iC. quod in caufa fuccfjftonis^ ^ Hare-
ditatts petitionee debet prim moveri placitum in curia nojlra.^^ cum
ibi objecta fuit Baftardia^ tunc deinde tranfmitti debet recordum
loquelte d^' cognitio Baftardia ad curiam Chriftianitatis., ut ibi ad
mandatumnoftrum de legitimate i7jquiratur\ quod quidem in hac
parte non eft obfervandum. Et cum hoc Jit manifefto centra Confue-
tudinem Regni noftriiSccvobis prohibemus^SiC.v^'herehy it is very evi-
dent that if the Ecclefiaftical Court proceed to the examination
of Bafiardy or Legitimation without direction of the Tempo-
ral Court, it is to be retrained by a Prohibition. (^,) As the
Ecclefia.^ical Judge may not enquire of Ballardy or Legitima-
tion without fpecial direction or com.mand of the King , fo when
he hath received the Kings Writ to make fuch Inquitition, he
ought not to furceafe for any Appeal or hihibition, but ought to
proceed until he hath certiried it into the Kings Court i and this
alio
and Bajlardy. a^\
^ alfo appears by BraBcn in the forecited place, c.14. Cum autem Ju"
J dex Ecclejiafiicus Inquijitiomm fecerity mn erit ab eo affellandum^
nee a fetentc nee a tenetJte : a petenie mny<^uia talem JurtfJi^ionem
d^ talem judicem elegit '•> a tenente mnyquia fic poJJ'et caufam m in'
\finitum protrahere de judice in judicem uf^--, ad Papant^ <&^ Jic poffet
" Papa de Laico feodo indireBe eognofeere. See alio to this purpofe
'^9 Ed. 3. 20. a. in a Wrie of Dower, where Ne mques accouph e»
loyal Matrimony was pleaded, and liTue thereupon joyn'd, the Writ
ifTued to the Bifliop to certiHe, who certified that he could do no-
thing by reafon of an Inhibition which came to him out of the Ar-
ches. This return was held infufficient, for it was there faid, that he
ought not to furceafe froni doing the Kings command by reafon of
any Inhibition (4.) Laflly, it was (aid, that the very caufe and reafon
why the Ecclefiaftical Judge may not enquire of Legitimation or
Baftardy, before that he hath received dircftion, or a Mandate out of
the Kings Temporal Court, doth confift in this, that the Eccleiiaiti-
cal Court never hath Jurifdidion or Power to intermeddle with
' Temporal Inheritance, diredtly or indiredly i It being obferved
that Chri^ Himfelf refufed to medle with a caufe of that nature,
when upon rcqueft made to him, Luke 12. Magifier, dicfi-atri meo
ut dividat mecum hareditatew, he anfwered, Quts me confiituit
judieemaut diviforem fuper vos ? and therefore in the time of King
H. 3. when the ufurped jurifdidion of the Pope was elevated much
higher than ever before or lince in the Dominions of the King of
England^Po^e Alex, the Third,having granted a Commiffion to the
Bifnops oUVinchefler and Exon to enquire de Legit ima nativitate
of one Agatha, the Mother of one Rohert de Ardenna, and if (he
were found Legitimate, tlien to reftore to the faid Robert the pof^
feflion of certain Lands whereof he was difpoffefsM, being informed
that the King of England was greatly offended at the (aid Com-.
mifiRon, he revoked and countermanded it in the point of the refti-
tution of Pofleirion, knowing and confefling that the eftabliihi^ient
of PofTeffions belonged to the King,and not to the Church. Which
Cafe is reported in the Canon Law, Decretal. Antiq. CoUeB.idib.^,
tit. Quifilijfunt Legit imi, eap.^. d^ cap. 7. where in the ^th Chap.
the CommilTion, and in the feventh Chap, the revocation or coun-
termand appears in cxprefs terms.
Eeee CHAP.
45>2
CHAP, xxxvr.
Of Divorce 5 as alfo of Alimony.
1. U'kat Divorce is, the caufes thereof-^ the difference hetween the
Civil and Canon Law touching the f roof of Im^otency^ Frigi-
dity,or Difability; and what manner of froof the Law requires
2. What time of ah fence in the Hush and may caufe a Di-
vorce,
3. Whether Divorce hy reason of Adultery diffolvesthe Marriage
a vinculo ? or whether the i?}nocent Tarty may re-marry altera
exiftentc ? ^ y y
4. ff'hat the Canon in Concilio Arelatenfe provides in that
Cafe,
5. The Opinion of fome eminent Common Lawyers in this
Point,
6. The different Opinions of Divines and Lawyer s^ and of each
among themfelves touching this ?natter.
7. The Opinion m fumma Hofticnf. as alfo of Suarcz, touching the
Legality of fecond Marriage after Divorce,
8. The Canon of the Council of tient concerning Matrimony ; alfo
the Opinion of fome of the Ancient Fathers , and a De-
cree of one of the Topes touching fecond Marriages after a
Divorce, ■'
9' Decrees and Hiftcries of great Antiquity relating to this Suh-
jeB.
10. What the PontiHc^] Law, «/^^/ Jufiinian, what Baldus, and
•what Orotius fays in this matter.
11. Opinions in this Toint take their diverfifcation much fom the
caufe of the Divorce, as whether ex caufa prafccdcnti vel fub-
lequenti.
12. Judgments at the CommonLaw, that a Divorce for Inconti-
nency ts only a Thoro & menfa, non a vinculo.
13. What the Law intends by Alimony, and what Elopement figni-
fes ; no Alimony due to her that Elopes,
14. In what cafes the Law will allow Alimony, or not,
^\' ^l^ ^^f ^^'^^^ ^""^ provides in that Cafe of Alimony,
16. The Ecckfiafical Court is the proper Court for Alimony
17. Whetkr the High Commiffion-Ccurt had Tower of Alimony, cr
1 8. Tro'
Of Divorce, Sec. ^p^
. 1 8. Vrohibition denied to the Hmhand fued in the EccUfiafitcal
Court hy the Wife for Alimony in caula fevitiar.
I p. Whether the EcclefiaHical Court may take Bond for Alimony y
or Imprifon for non-payment thereof,
'{}) \ Divorce \^ a Sentence pronounced by an Ecdefiaftical
r\ Judge, whereby a Man and Woman formerly Married
"^ to each other, are feparated and parted (a). The word (a) Co. par. 7.
Divortium or Repudium is often taken promifcuouily, both for a K'^/^^'^ Cafe.
Total and Perpetual Divorce, (^ a 'vinculo Matrimonij i as alfb for
a Partial and Temporal Divorce, or Separation a Cohabitatione^ W
a thoro ^ menfa. The caufes of this Divorce, whereof fome are
precedent, others fubfecjuent to the Marriage, arc many in the Law •,
I'homas Atjuinas reckons up no lefs than a dozen of them, and
thinks he hath Poetically comprized them all in four Verfes, viz,.
Error* Conditio. Votum* Cegnatio. Crimen.
Cult us Dijpariras. Vis. Or do. Ltgamen. Honefias.
Sifis Affinis. Si forte Coire nequtbis^
Hac Socianda vet ant Connuhia, Fa^a retraBant.
(h). But the Caufes of Divorce in the Law as now commonly i^) Aquin, fup.
pradicable, may be reduced to thefe few : (i*) The Levitical P'^*"' ?• par«
Degrees within which it is prohibited to Marry. (2.) Trecontratl^ prifertim fn *
And fo if a Man marry one precontraded, and have Iflue by her, 4.Dift 34.9 i,
it is the Fathers Child until there be a Divorce upon the precon- a-un.
trad, and then it is N«///«j Films, a Badard (c). (3.; Impw J^^^^'^^^f'
herty or Miner it y. And fo if two be married infra annos nuhiles, ^' ^
and after full age Divorced for the fame, the Woman may
bring an AlFize againft the man for Land given her in Frank-
marriage (d.\ which proves that the Divorce is by that Law from ,^\ lj|,. ^n;
the very Bond of Matrimony (4.) Frigidity in the Man, or Impo- jp. An, pla. 2.
tency in the Woman, termed ArBitudo in the Law, but the word
\_ Impotency ] is promifcuoufly ufed in both Sexes, for it is faid that
if after a Man be Divorced for Impotency, he take another Wife
and have Children by her, thefe (liall not be Baftards, becaufe a
Man may be hahiUs d^ tnhahilis diverfts temporibus (e). But in /(,^ cq. par. §.
this Cafe the Civil Law hath made other proviiion, for that Law 93. & Dyer,
in catifa Frigiditatis requires three years Cohabiration for Trial of f°' ''2*
the Difab lity before it doth upon otiier legal Evidence and Proof
conclude any Married pcrfons either Frigid or Impctent h Indeed
the Canon Law expeds prefent proof, and in cafe of fuch Impotency
or Frigidity, not Accidental but Natural and Inctirahle, concludes
that the Matrimony was never a Matrimony* The evidence of
E e e € 2 which
4^4 ^/ ^^'^<^^"^<?$ ct6 alfo
whkh Difahility depends on the Oaths of able Thyficians, as alTo
of aged and grave Matrons experienced in fuch affairs ; nor is it to %
be alledged till after a triennial experience of each other pofi Ma- ^
trmonium Confummatum ; and is a juit caufe of Di'vorce, tor ^^at '
it fruftrates one of the chief ends of Marriage, z^iz. Procreation ofi
Ipe, if it be fufRciently proved by InfieBton of the Body, Trien- ^
nial Cohabitation, and the O^?^/ aforefaid. Confil, Matrim. To, 2.
Confil. %.nu. I. And in Cafes doubtful whether it did precede the
Marriage or not, the Law will prefume it to antecede the Marriage
and confequently nuUs it, in cafe it be Natural \ otherwife, both
as to the prefumption aiid operation, in cafe it be only Accidental
Sanch. lih.'j. dt]}>, 103. nu. 4. And where the Jmptency doth (ijifi-
ciently Confiare to be Perpetualhy the Oaths aforelaid upon hBem-
Dn, there the triejmial probation ceafes. XJt cum Glojja, cap. Frater-
nit at is. De FrigUis & Makficijs, & Tanor. nu. 11, Pope Sixtus ■
$tb inhisBull,^«. 1587. declared that Matri?»onia cum/hadoni-
hm, -vel eunuchis prorfus eviratis, feu utroq; tefiiculo carentibus,
cum qmbujlibet MHlicribus, feu defe^lum pradiSlum igmninttbus,
feu jcientibus, efje femperquefutfle irrita. Antonini Diana r efolutio-
msmorales.TraB.^.Mifcellan.refol.y^. p. ipo.
(2.) There are alfo other fecmingcaufes of Divorce than what
are forementioncd ; for the Civil and Canon Law do allow of
Divorce after a long abfence, but are not agreed touching the Tim
of that Jbfence v tor in one place it is after Two years Abfence, in
another after Three years •, in another after Four. Cod. lib. 5. tif, 1
I' ^f^f^/'^'^l ''^' ^I'.^'fi ^''' ^^- ^' 27. fo(l Quatuor ^n\
others held. That the Civil Law requires Five years Abfence before
there may be a Divorce on that account. In the Council of Lateran
a Sentence was allowed by the whole Council, which was eiven by
^lihop pronouncing a Divorce for a Woman, complaiiSng that
her Husband had been abfent r.« years, giving alfo leave to the
Woman to Marry again. In ConciL Later, par. 50. cap.i^. But the
truth is no abfence, be it for any time whatever, doth properly
caufe a Divorce in Law : Indeed Seven years Abfence withouf any
tidings or intelligence of or from the Abfent Party, will fo far
operate m Law towards what is equivalent to a D/w.^, as to in-
dempnifie the Wornan from the penalty o^FoUgamy, if in that cafe
file Marry again. Alfo the Canon Law hath decreed, that if the Wife
refufe^to dwell with her Chriftian Husband, he may Lawfully leave
her. Caufaz%. q.i.c.j And fome of the /«.;,,nW Laws allow
Homicide Sacriledge, Theft, Man-ftealing, &c. for caufes of Di-
vorce, Cod. lib. 3. tit. 17. /. 8. But the Canon Law decrees other-
x\ ^"J.^V"^^of Ed. I. William de Chad-worth v^z^ Divor-
ced, becaafe he carnally knew the Daughter of his Wife before he
Married
of Alimony, Anr
Married her Mother {o). The Stat, of i Jac. cap. 1 1. is the firfl;
Ad of Parliament that was made againft Volygamy. Tolygamia efi y^^J^^"^^'^^
flunum fimul 'viroYum^ uxorum've connuhium. The dirtereiice be- ^ coram Rege.
tween Bigamy^ or Trtgamy^ 6)CC. and Polygamy is, ^aa Btgamm
feu Trigamus.Qcc. efi, cjui di'verjis tewporikuSi& fuccejjlz!e Juas^feu
tresjdcc. uxcres habuit. folygamus^qui duas 'velplures fmul duxtt (^^^Xn^mx, %
uxores. And if the man be above the Age of fourteen (which is cap, 27.
his Age of Confent) and the Woman have th« Age of twelve
(which is her Age of Confent) though they be within the Age of
twenty one, yet tliey are within the danger of the Stat* of i Jac,
cap.ii:'' 'Co. InH.Far.^.Cap.2'j, 'vid.Jnfiit.par.i. Sect. 104.
C 3. ) This matter oi Divorce hath often miniilred occafion for i
high debates and altercations touching [econd Marriages, as whether
a Divorce by reafon of Adultery in either of the married Parties,
doth fo dillblve the Marriage a 'vinculo , as that it may be
lawful for the Innocent Party to Marry again during the others
life? By the IC7//6 Canon^ It is provided, that in all Sentences
for Divorce, Security be given and Bonds taken for not Marrying
during each others life (a). By enjoyning fuch Security to be i'^X ?n'i"\
given, and fuch Bonds to be taken, this feems to be a penal Canon, gdic. ,^0?. '
'viz. pecuniarily Penal j whoever therefore breaks the Law incurs
the penalty^ and whoever fuifers the penalty doth anfwer and fatisfie
the Law which before he had i7jfrin£d j a penalty exprefled or
implied, provided for in, and annexed unto a Law that is in it
felf prohibitory , feems to create fome qualification of that legal
prohibition, Vrohibitio vi?n fuam exercere potefi per poenam 'vel
exprejfam vel arbitrariam •* Et hoc genus Leges ImperfeBaf vocat
, Ulpianus^ qu<£ fieri quid 'vetant^ fed faBum non refcindunt. So
Grotius de jure Bel. ^ Tacis^ lib, 2« cap.*^. SeB.i6. But to fpeak
a little nighet to the point in hand, it is Grotius again in the fame
place, St Lex humana conjugia inter cert as perfonas contrahi prohi-
heat, non ideo fequitur irrttum fore Matrimonium, fi re ipfa con-^
trahatur : funt enim diverfa prohibere^d^ irritum quidfacere. The
Laws whether Ecclejtaftical or Temporal are not of any private in-
terpretation 5 yet to fpeak herein only hypothetically^ if this be inter-
fretative as a penal CanOn by vertue of the faid Security and Bond^
then appofite and obfervablc is that which Grotius hath in another
place, tn Cafu Legis Voenalts^ his words are thefe, viz,. Rex qui efi
AuBor Legis^ ^ ubi Regni ipfus perfonam df* auBoritatemfufiinet^
qua talis efi^ potefi legem etiam totam tollere •» quia Legis humana
natura e/?, ut a voluntate humana pendeat^ non in Origine tantum
fed &' in duratione. Sicut autem totam Legem tollere potefi^ itu
df* vinculum ejus circa perfonam ant faBum Jingulare, manente de
c^tero lege Dei ipfus exemplo^qui (Ladantio teBe) legem cum pone-
ret
/^p6 Of Divorce 3 as alfo
ret^ non utiq'-) ademit fihi ommm fotefiatewj fed hahet ignofcendi
iicentiam. Iwperatori, mquit AuguiiinuSjL^^ref rei'ocare fententiatn^
^ Rettm mortis abfol-vere d^ ipfi ignofcere : Caufam explicat, Quia
■ non efl Subjecitts Legihusy cjui habet tn^otejiate Leges f err e. Grot,
ibid, de Vanis, cap.2o. SeB.2^. How far the Power of Princes may
extend it felf in this matt€r5 is not before us '■> But clear it is, that
all fuch as acknowledge the Regal Supremacy, will withall confefs,
that his Majeftyjiath more right to difpence with Canons within
his own Dominions ex pUnitudine potefiatis Regalis^ than was here
formerly Exercifed ex ufurpatione potefiatis Fapalis. In all Laws
that are both Prohibitory and Fecial, as they are of the more force
by reafon of their Prohibitory quality, fo they feem to abate of that
force by reafon of the annexed penalty •» for he that fuffers the
Penalty^ fatisfies the Latv^ though he tranfgrefs the Command. The
/ ^izxxxttoi primojacohi hath a Pro'vifo or exception to fecond Mar-
(A St. I Tac. rJ3ges by perfons legally Divorced i» (d) no Canons or Confiitutions
cap. II. prevail or are executable, in repugnancy to the Kings Prerogative^
(0 Sc. 25 H,8. or to the Laws or Statutes of this Fvealm. (ej. That Statute of
.C' 19' primojacobi prohibiting /ec£/«^ Marriages during the Life of each
other, doth not only - not extend to Perfons legally Divorced^ but
as to fuch it is with an exception^ limitation or provifo as afore-
faid. Sir Ed. Coke taking notice hereof in Porters Cafe, reports
that that Statute extends only to ' Perfons which are Divorced by
( O ^'"'^1'*** Sentence in the Spiritual Court (f) ■■> And that dillindtion of Total
* ^'' ' "' and Partial Divorce, Or that vel a vinculo vel a Menfa & Thoro^
will not it feems fatislie all Judgments, fome alledging that ubi lex
Tjon dijtmgmty nee nos difiingmre debemusy applying that Fvule ad
Evangelium alio •, and thence will not be perl waded but that the
innocent Party in Caufa Divortij cb Adulterium may Marry again,
altera parte exifiente^ becaufe though they know it to be ctherwile
by Text Canonical^ yet know not where to Hnd it fo by Text
Scriptural \ and fpccially becaufe they iind a Proviib in tlie faid Sta-
tute of prima Jacobin that the Parties D/^'orcf^ by Sentence, if he
take another Wife, or fhe take another Husband, fhall not be within
the danger of the Statute '•> And that this extends to every manner
of Sentence of Divorce^ and not to any particular caufe of Divorce.
Cajetan^ though of the Reman Church, yet on the i pth of Matthew
faith, hiteJJigo ex hac Domini Jefu Chrijlt lege^ licitum ejje ChrifH'
* 0710 dimittere uxcrem ob Fornicationem carnalem ipfnts uxoris. d^
pojje aliam ducere : and foon after zdds^Kon folum mircr fed flupeo^
quod Chrijlo dare excipitnte caujam Fornicati nis-^ torrens Dctlorum
7)on admittat lUafn Alaritt iibtrtatem. This Gueltion, \\hether
after Divorce for Fcrnicaticn it be lawful to Marry a^ain during the
^Lives of the Parties Divorced-^ is at large haixlled by the Learned
Dodor
of Alimony, a^j
Dodtor Hammond in his Treatife of Divorces \ where he fays /'
that Mat. I p.p. and Mark lo. 6. are two phces oHuch perjpicuity '
( one Caufe of Divorce allowed the Chrtfiians^y that great Breach of
the Conjugal Vovj., and -whofoever Divorces and Marries again.,
fave in that one Cafe pundually named, committeth Adultery) that
as no Tara^hrafe can make them more intiUigihlei fo there is but
one Que fi ion that can reafonably be ftarted in them, viz,. Whether
he that futs away his Wife on this one Authentick Caufe^ be fo per-
fedly freed from the Conjugal Voiv and Bands^ that he may Law-
fully Marry fome other Woman., and fome other Man Marry that
Divorced Adulterous Wife "^ hi Mat. ip. p. The words are, That
Tvhofoever jlmll fut away his Wife., fave for Fornication^ and JhaH
Marry another, ccmmttteth Adultery 't and he that jhall Marry her
that is fut away, committeth Adultery : Which words ( fays that
learned Author in Se^. 22O are favourable to the affirmative, that
it is Lawful for him in that one excepted Cafe to Marry again.
The nature of a Divorce among the Jews was the refcindmg of
the Conjugal Bands., and by one fuppofition common to Jews and
Romans-, viz. That they who were duly Divorced might Marry
again i So of the Jewijh Divorced Wife, Deut. 24. 2. *tis exprelly
faid, jlje may marry another \ and of the Man^ this was his only
"End of putting away his Wift in that place, that he might Marry
another : Accordingly the Fcrm of Divorce in Mifna., tit. Gittin.,
Behold., thou art free., or at liberty for any man, and this is the Bill
of Divorce between me and thee, fo that it is free for thee to marry
to any man thou wilt. Idem. Set}.2j, yet on the other fide ( fays
that Learned Author ) it may be argued, that although in the
Mofaical Law, Divorce was the refcindtng the Conjugal Bands., to
which it was confequent, as long as the Jewi^) polity lalled, that
they who were duly Divorced (as in the one Cafe of Fornication^
might {vedy Marry again: yet in the acceptation of our C;6r?//^«
Courts., Divorce appears not to be any more than the Solemn Jw
dicial feparation fiom Conjugal Society, as that it feems to be ra-
ther the freeing the Husbaixl and Wife from the Obligation to mu-
tual Conjugal Duties, than the utter refcindtng and dtjfolving the
Bands, For if it were fo, then that Husband and Wife could ne-
ver come together again without a new Wedlock., which was never
heard of in the Church. That Adultery, the efficient caufe of Divorce
(though a Bteach of the Conjugal Vow) is yet no a5lual diJJ'olution
of the Conjugal Bands, among us Chriflians, feems probable (fays
Dodtor Hammond ) by thefe two evidences (1.3 Becaufe Adultery
committed by the Husband, diflblves not Marriage, which yet it
equally fhould, if that fault committed, and not the Sentence of
Divorce refcinded the Conjugal Band-fiiQ, In this a diiference is ob-
fervabk
4^8 Of Divorce , as alfo
fervabk between us and the Jews'-, (ox \n cafe of Fornication^
the Jeivs expedcd no Sentence of the Confifiory^ but the Man
might put her away, give her from himfelf a Bill of Divorce^
which was never allowed or pradifed among Chrifiiam. 2.Be-
^aufe if this were fo, if Adultery in the Wife diJJ'elved the hands,
then the Husband, that after the Wifes Adultery continued to live
with her Conjugally^ muii be concluded to commit Fornication with
her, the ^validity of the Bands being it C a«d nothing elfe ) which
makes Conjugal Society Lawful. Accordingly hath the Opinion of
//'the Church been anciently, as in Can. Afofi. 48. If any taickfut
away his Wife and Marry another^ er Marry a Woman which hath
been put away by another^ let him be Excommunicate. So likewife at
the Council of Aries ^ An. 314. Can. 10. Dehijefm Conjuges fuof
in Adulter 10 de'prehendunt^ & ijdemfunt Adolefcentes Fid«les, e^
prohibentur nubere , flacuit ut in quantum fojjit, concilium ijs
detur^ ne 'uiventihus uxorihus fuis, licet Adulterfs, alias accipianf,
'"Likewife in the Mikvitan Council, An* 402. at which St, Au-
^uftin was prefent, it is decreed, that fecundum E'vangdicam d^
Apofiolicam Do^lrinam, nef-> DimiJJus ah uxore, netj\ DimiJJ'a a
Marito,alteri conjungantw\ fed it a maneant, autfibimet reconctli-
entur» So alfo in the Codex Can. Eccl, African. Can* 1 02 . •meX
voy TBj ctfeTgjif n ToUi ■yuvAifj.f eL-nnf^v'dvrav 'iVct 'irui ^itvamv. That
they that are Divorced from Husbands or Wivesy (hould remain
unmarried. And what hath thus been defined by thcfe Canons^ is
evidently received into the Ecclefiaftical Conftitutions of this
Church, which therefore hath decreed, that when Divorces are pro-
nounced, Monitio ^ prohihitiofiaty ut a partihus ah invicem fegre-
gatis cafe vi'vatur^ nee ad alias Nuptias alterutra vivente con^vole-
tur.Conftit.Eccl.An.i%9'J \X^\\ thele Arguments pro & co»,Dod:or
I Hammond in the forecited place doth conceive, that the Refolution
may be made by thefe three Propofitiom : (i.) That by the force
of ChriBs words in all the Evangeliils, he that Marries again after
any kind of Divorce^ but that one for Fornication^ doth com-
mit an Unchriftianjtn. (2.) That by force of the Arguments Utii
produced, for the intcrpitting Mark ^nd Luke hy Mat. ip."). 'uid,
Dodfor Hammond of Z)^^'or<:f /,/o.45 2,45 3 . it may be probably con-
cluded that in that one cafe of Divorce for Fornicatkv^hc Marriage
of the Innocent Party fhall not be Adulterous. C3«)'->'Tihat:although
this be granted, yet the words of St. Mark and;i,*j^ efpecially
the words of St. Vaul, i Cor.y.'^'p. do give fuch pr^ejudices againft
Marriages after Divorce indefinitely, that the ancient Canons of the
•Churchy and the Confiitmions of our Englifl} Reformation, have
thought fit not to permit fuch liberty in any kind, and therefore
that this may be the better obferved, the decree of reparation fliall,
not
of Alimony, aqq
-not be pronounced, till they that demand it, (hall give fufficient Se-
if curity that they will do nothing againrt the Admonition and Frohi-
Ibition^ioi our Conftitution addSjDf«/<^v^w iUud jirwius ohfervetury
yfententiafefarationis non antea proKHnciaizituryquam qui etim fdJiuU"
herint, Cautionem Fidejujjhrtam fujjicientem interpofuerintfe contra
monitionem d^ frohihitionem mhfUommiJJuros^whkh if not obferved
by the Judge, he is punifhable, and the Sentence o^ Divorce for fuch
defied declared void. Confiit, EccL An. 1 5^7. Innocent the firft
Biftiop of Rome faith, Qui tnteweniente repudto^ alij fe Matrintofiio
coptilarunt^ in utraq\ farte Adulteros eJJ'e manifefium £/?,&c But the
faid Judicious Author conceives, that of this and the like TeHimo-
nies it may be obferved, that moli of then^ belong not to thefc
Divorces^ which are in cafe of Fornication, but (proportionably to
Chrijl^s words in St. Mark) to thofc which according to the JeTi/ifh
or Imperial Laws were allowed in other Cafes, than what either
Chrifiy or the Vrimogenial Inftitution of Marriage had allowed of ;
And further faith, that it is evident and confcfled by all Chriftians,
that of Jhefe, that is, the Marriages ( after fuch Divorces by the
Je'wijl} and Imperial Laws ) are Adulterous, but not fo of tho(e
other Marriages of the innocent Parties after thofc other Dtvorces /*
in that one Cafe of Adultery. Yea and fome Canons have been ^
made with this Tewper^wewf exprefly ( except in the cafe cf^For-
nicaticn ) fo in the lecond Canon of the Council of Vannes^ eos qui
reliEiis uxoribm fuis^ficut in Evangelio dicitur, except a caufa For'
nicationis, fine Adulterij prohatione alias duxerint, (tatuimus^ &c.
They that have left their own Wives, as it is faid in the GoJ^el,
except for caufe of Fornication, and without proof of Adultery jhall
have married others, we judge them, &c Notwithftanding which,
the Law tells us of other Cafes than that of Adultery or Fornica-
tion, wherein the Man after a Divorce may re-marry during the
Life of the Woman Divorced, as in the Cafe of ArBitude, which
you may find in Summa Afienfi, Lib, 8. De Divert io propter tm-
fotentiam. Tit. ^J.fo. l^^. Si arBatio alligetur ( fubaudi quam''
cunq\ impotentiam Fxmina ) fiatim poteH Divortium Fieri hoc
modo, viz. vocabuntur Alatrona fide digna, d^ in Nuptiali cpere
experts Ar. F. de Ventr. inJj>eB. 1. 1. verb. igitur,dcc, Etfi Ma-
lieres ajjerant earn non pofie fieri Naturaliter Matrem, tunc fiatim
fotefi Divortium fieri, c^ dabitur viro Licentia cum alia contrahen-
di. It will not be denied, but that in all Cafes where the Mar-
riage was ab initio Null, there it fhall, after a legal Divorce, be
firce for either party convolare ad fecundas Nuptias altera parte ex-
ifiente, which ftridtly and properly cannot be faid to be a feccnd
marriage, becaufe precedent to it, there was duly and legally none »
nor therefore can they be properly faid to be Divorced, Separated,
F f f f or
too ^f ^i'^orce 5 as alfo
or put afunder, that never were de jure put together. Among the
feveral kinds of thefe Null Marriages may be computed thaj which
Tarnormitan fpeaks of in his Fourth Tradt de Sacramevtis. Re folio j
Fcemina (fays he thtie) fi commode non fotefi apam fereddere viro^
impediment um cenfendum eJJ'e prfetuum, ^ Matrimonium decla-
randum Nullum \ which holds trite vice 'verfa^ and therefore it is
likewife faid, that Famina per contraBum Matrimomj jus fuum tra-
dit 'viro apto^ non inepto^ atq\ in non apum jjullum transfertur jus.
The Canon Law is exprefs in prohibiting thefe ftcond Marriages
after a Divorce, although Ex cauj'a Fornicattcnis. So "ToHatus/verb.
Matrimonium^ ubi 'voluit nullam eJJ'e Caufam Repudij^ nifi Fornica-
tionem i Et iftam non quidem fimfliciter adDirimendum MatrimC'
mum^fed.ad tollendam Cohahitationem^ut patet^Extra. de Divort.c.
Gaudemus, The Lawyers and Divines ( fays Adam Tannerus) are of
different opii^ions in this Point, Jurijla Divortij voce utuntur fro
Dtjjclutione Matrimonij etiam quoad vinculum, ut ccnfiat ex toto
tit. F* De Divorttjs. Theologi tamen ea voce Divortij jolum fignifi-
cant feparationem inter coniugesydut quoad Cohabit atioyiem^aut quoad
Thorum. Adam. Tannerus^Tom. 4. DiJ^ttt, 8. de Matrimcnio^ q. 5,
Dub. ^,nu. 74. de Divert io.
C4.) In concilia Arelatenji^ which was held in An. 314. at the
ConTrnaud of Confiantine the Great, under Pope Silvefier in the
lirft Year of his Papacy, it was Canoncd, tit is cujus uxor Adulte-
ravit^ aliam ilia vivente non accipiat. Sir Hen. Spelman gives the
words of this Canon thus, viz. De his qui conjuges fuas in Adul-
ter io deprehendunt, ^ ijdemfunt Adolefcejttes Fideles ^ frohiben-
tur Nubere '•> placuit ut in quantum pojjit^ Concilium ijs detur^ ne
ig) Sir H. viventibus uxor ibus fuisylicet Adulterts, alias accipiant (g). If this
spdm. Concll, Qai;jQj^ \^^ ^-^q^ diredfly prohibitory , and againit fecond Marriage
Arckt.Can. ^^^^^ Divorce in Cafe of Adultery during the Life of the other
jp. Party , yet it provides that Counfel or Advice in the Cafe
be given againft it , and the Parties monilhed to the con-
trary.
(5.) Mr. Attorney Noy in Dame Towels Cafe reports, that a
Divorce caufa Adult erij is but a menfa d^ thoro^ & non a vinculo
Matrimonij '•> and the reafon he gives is this,^'i,^. Becaufc (fays he)
,, V _ the offence is after the juft and lawful Marriage Xh)^ if for this
Towds Cafe Opinion of his any Anticanoni(l ftiould dream, that he died in the
agajnrt Week}, Catholick Faith of Matrimonial Sacraments, let him confult Sir Ed-
Noys Rep. -u^ard Coke in the Third part of his Infiitiites^ where he doth not
only allow of that Member of the forefaid diftindtion, but withall
f c T fl' ^'^y^' ^^^^ ^'^ ^^^ ^^^^ ^^ Divorce a Menfa d^ Tboro the fecond
2. par. cap.17. Marriage is void, living the former Wife or Husband (i). Yet in
Poiygamy. Burjs Cafe he reports it to have been adjudged, that by a Divorce
the
of Alimony, 501
" ' ' ' ' ' ' I g»
the Marriag€ is diflblved a Vinculo Matrimomj ; and alfo rcfolved,
► that admitting a fecond Marriage to be voidable, yet it is adjudged
I that the fame doth remain in force until it be diiToIved \ and that
\ the liTue born during fuch fecond Coverture is lawful liTue to in-
'herit the Land (y^>. rt)k ^cT
6. Touching the kinds and eifeds of Divorce, whether Divorce a, Co. sTpar. ojl
'vinculo Matnynonij^i or feparation only a Menfa & Jhoro^ with the
caufes thereof i the Divines and Lawyers are of different Opinions,
and each of thefe divided among themfelvcs \ fome conceive, that
as there be Divorces Ex Caufa pracedente^ fo there are fome Ex
Caufa fu!pfcc[uente^ as Caufa Aduherij^ and that Adultery diifolves
the very Bond of Matrimony, which conilfteth in their being one
Flejl}. And whereas it is written, That v^hcfoe'ver jljall Marry her
that is Di'uorced^ committeth Adultery CO, they will have it to be (J) Mat. 5.32,
meant only of fuch as fhall marry her who is Divorced for aiiy
other caufe or reafon, than for Fornication i which they infer from
the former part of Matth. 5. 32, That whofoever jhall -put away his
Wife-faving I or the caufe of FornicatMn^t'dufeth her to commit Adul'
tery ■•> fo that for the caufe of Fornication it is lawful to put her
away, and whoever fliall marry her that is ( fay the^ ) Divorced
for any other caufe, committeth Adultery i whence they would
inferr, that a Fvemarriage after Divorce for the caufe of Fornication
is not forbidden i And as for that Divorce or Separation a Thsro
d^ Menfa^ they look on it as no current Coin, not having ( as
they pretend ) Cafars Image or Superfcription thereon, but feem
very pofitive in affirming that Tharifai interrogabant Chriftum de *
dimtjfwne quoad 'vinculum^ ^ non quoad Thorum d^ menfam. It
is true indeed, by the Judaical Law a Woman Divorced from her
Husband in caufa Adulterij might be another mans Wife (m) s (m) Deut.24,
which is no contradidlion to Matth. 5. 22. if- the Divorce there '» *•
mentioned be a 'vinculo. But that which fuch as are Poli-repud^ary /-
Marriages much inlift on, is that which the Reverend Mr. Beza Bf^a 10 Luke
hath on the like place. Qui hinc colligunt (fays he) fofi Repudium *^' *9'
Nullum efj'e fecundo Matrimonio locum, altera parte exijlente, inept e
colligunt ; loquitur enim Chrifus de Repudijs apud Judges ujitatis^ Lcvit.20.12.
inter qua numerari non potefi Repudium oh Adulterium^ cum Adul- and Dcut. 22.
teres ex lege oportet Capitali pccna pleBi. ^^'
• C 7. ) If tngr.ejjus in Religionem be fas fonle underftand it ) a
kind of Mors C^x';7/if,then,it (hould feem it might be for that rcalbn
that in fuch cafe it was lawful for the other Party convclare ad fc
cundas Nuptias^ for by the 1 1 8 Canon oi Egbert Archbifliop oiTorik
An.y^o. called Canon Africanenfis^in exceptionibtfs fuis e Canonibus
Vatrum Covcinnatts^ it was lawful fo to do, the words of the
Canon are, 6'i vir fiva Mulur ex confenfu Religionem cepent-> licet
F f f f 2 alter urn
502 Of Divorce 3 as alfo
'Ff
alter urn accipere novum conjugium \ But from hence no Argument
can be drawn to prove the Lawfuhiefs thereof in Caufa Divortij,
The Cardinal of Segutium in his Summa Hofiienfis feems to be of
Opinion, that it is Lawful in cafe of Divorce to Marry again : the
words of that famous Canonift are, Debet: Judex fententiam Dtvor- '
tij fartibifs tradere in S crip ur am public am redakam^ ne Filiisfuf-
qiftif ex fecundo Matrimonio^ frobatione deficiente^ 'valeat prajuJi-
(n) Sum.Hoft. dm generari (»). But Cardinal Navarr feems to be more pofi-
lib. 3. de Di. tive in the Point, where he Affirms, that Matrimomum Coniracium
vortijs, Qua I. cum fecunda pofi fententtam Divortij^ 'valet^ provided it be fofi
Triennalem Cohabit at ionem^ as the Canon Law requires, in caufa
Impotentiai Navarr. ConctL I. 4. CenciL i. de Frigidts^nu.^.p.^i/L,
(/^^ut it feems ihange that Sanchez, a Jefaite, and one of the liightit
. ? .js!^ tV . form, arguing the Queftion againft the Hereticks, as they are
- . pleas'd to call us, fhould ih ingenioufly confefs,that ex ipjts CathoUeis
altqui exifiimariwty omnim dijj'ohi Matrimomum quoad vinculum
^0 fropter Adulterium alterius Conjugis feparato : atque ita licere
altud Matrimomum inire, priori Conjuge Juperfitte. Sanch. de Ma-
trim. Tom. T,. lio. de Divor. Dtfp. 2. nu. i, & Navar. hb. 4.
Canal, i. nu'^,
(8,) This, utrum cb Adulterium alterius Co7ijugis dijjolvatur
Matrimomum quoad vtnculum^ita ut integrum Jit innocent i ad aliof
Nuptias tranfircy altera parte vivente ? was a qucftion long lince
controverted by Bellarmm, and by Valentia^ Bellarmd. i . de matrim,
f. 15. Valtnt. lib. umc. de indiffolubilitate matnm. cap. 3. And by
them admitted as difputable with a Non cbfiante to the Council of
Trent : whereby Matrimony is highly Sacra men tii'd, as appears by
<hat which the faidJriJ^wr^/ Council declares concerning it, viz,.
Matrimonium efi Sacramcntum^ quod ex cpere operato confert gra-
tiam.Jecundum Commumm & veram opnionem^quam pro infaUtbili
ArticuloFtdti tenendum ej]e^ aut ConaliumTrident. & declaravit
Navar. lib, 4. CenciL 1 . w«.3 . Yet the forementioned Sanchez, doth
cite Sixtus Senenfis bringing in Origen AJJerentem fui temports Epif-
*flpos permifijje alias Nuptiof uxoribus obvirorum Adult eria ab tffis
divert ent I bus. Sanch.ubifupra Sixt. Senenf.lib. e.Bibltothec. Of
which Judgment alfo was St. Ambrofe ( as he affirms : ) alfo TertuU
hariy Erafmus^^Cajetan and Catherinus. Tertul. lib. 4. cmra Mar-
^on. Em{m. Annot. ad 1 Cor. y.Czther. 7.5. Amot. contra Ca^e-
tfft.infin.Cajetan.inMat. ip. in illudy quicunq; dimifertt. This
alfo, faith Sanches, was the Judgment of the Greek Church, as
Guido the Carmelite reports ^ and of this Judgment are both the
Lutherans and Calvemfis ; yea, it was the Judgm.ent alfo of a
Pope, Pope Zacharias the Firft, who exprefly Decreed in thefc
WQids, viz,. Concubuifli cumfircre uxcri-j tua^Ncutram habeas j Et
of Alimony^ ^q^
fi ilia quee uxor tua fuerit^ Cor^fcta fceleris non fuit •> Ji fe conti'
nerenon'vuk^ Nub at in Domino cui 'velit. Cap.ConcuhdJI-i. 22,
<^uefi, 7. And as to the Husband Si. Ambrofe is exprefs in the Cafe,
uxor a viro non difcedatynijt caufa Fornication^ ; (fuodji difceJJ'crit,
0ttt ntaneat innupta aut reccncilietur, Ideo^ nonfuhdit de 'viro^qmd
de uxore framtjit, quia Viro liceat ducere aliam. D. Ambrof, ad
I Cor. 7. c^ refertur^ cap. uxor. 32. ^. 7. So likewife Ex concilia
apud Vermeriofj it is exprefs, that Maritus (uxore conciliante mor-
tem ejus) fojfit ipfum uxor em dimittere^ &fi 'voluerit aliam ducere^
refertur c. fi qua Mulier. ^i.q. i.
Cp.) In the Firlt Year oi Lotharius King of Kent^ An. ^83. In
Concilio HerudfordiaM was decreed,that Nullus Conjugem impropri-
am,nifi (utfan^ium Evangelium docet) Fornicationis caufa relinquat.
Quod fi quifejuam propriam expulerit Conjugem Legit tmo fib i Ma-
trimonio ConjunSfam, Si Chrifiianus ejj'e recfe 'voluerit^ mtUi alteri
copuletur : fed it a remaneat^ aut propria reccncilietur Conjugi (y), (y)Soc]m.
In thofe days it (cems he was reputed fcarce a Chrifiian^ that being Concil. de
fcparated from his Wife prefunned to Marry another. And above Concil. He-
two hundred years before, in St. Patricks Synod, 'viz. In Synodo ^^^^°^^' ^^^'
San^i Patricijy aliorumf, Epifcoporum in Htbernia Celebrata^ circa
An. Chrifii 450. 'vel \^6. It was decreed, that the punilhmait of
a Woman departing from her Husband, and joyning her felf to ano-
ther Man > fhould be Excommunication C^:-)* In the time of -^^ 3* r > tj «, j
and in the Cafe oi Simond de Muntford,befW€enhim and his Wife, Synod. Saodl
the Pope ratified liis Marriage, after he had difpenfed therewith Patrlci) Seft.
contrary to the Laws and Canons (a). King John being Divorced '9'
from the D. of Glocefiers Daughter, -viz,, the third of June, 1 jpp. ^fft. Aogu""^
foon after, viz, before the ^th of 05lober then next following, was 0.4*55.
Remarried to Ifabel^ fole Daughter and Heir to the E, o(Engolefm,
Likewife Alicg Daughter of the E. of Savoy , and King Johns tirft
Wife^ was Married to him after (he had been the Divorced Wife of
Henry de Lyon, D. of Saxony. Speed Chron.in vita Johan. R. AngL
Alfo King Henry the ^th after he had been Divorced (torn Q^Ka-
tberine, his Brothers Relict, and after above twenty years cohabita-
tion with her,Married again (during her Life) the Lady Anne Bullen,
by whomhehad Ci,E//2:,;7^e?^. Thcfe arc Prefidents of F<?(5?j not :
of Law '-) For,
Cio.) Alceat z{ktt5,Th2it hodie Jure Fontifico fermittitur folum ■
feparatio ex cert is caufis., nee interim licet aliam ducere,etiamfi fepa^
rationi uxor caufam dederit : yet withall he fays in the fame place,
Aliter tamenaliqui ex AntiquisVatrthMsclimobfervavere^interquos ,
Ambrofius, efui ex jufia cauja Mar it 0 jus dtvertendi atf-, aliam du-
cendiy^c. Non entm bos homo feparat, fed DeusyCjuando it a Optimis
Antijiitibus propter malos Foemma mores videtur.Alceat. de verb fig, .
/. loi.
504 ^f l^i'^orce -J as a/fo
/. loi. inter fiufrum. Setf. Di'vortium, In which place the fame
Author further adds, It is no wonder that the Emperor Ju(timan^
himfelf was fomewhat fparing in this Point, when the Pontifical
Canon paj/im tempejiate Jua obfervatm fuijjtt : ist forte cretHendum
fih Liccre Vontifici eos Canones tcUere-^-d^ jus Romannm ohfervari-,
Ji 'velit. Grotius lays, Cum ea alter i Nttfta ?/?, Matrimo7)ii4m haud
■Jubie irritum lege quiJem Naturally nffi vir prior earn dimiferit.
Grotide jur.heLliki.cap.'y, feB*i I, And in the Matrmcnial Ccuncils
it is exprefs. That Alulier a primo Matrimonio per fententiam ftpa-
rata^ cum eo^ cum quo fecundo fiupfit cum Auihcrltate Ecclejla ma-
■nere debet. ConciL Adatrim. Concil. Baldi 3. mt. 3. Where the judg-
ment of the famous Baldus is,That Contrahentes Matrimomum cum
Author it ate 'EccUfne^ d^ I'lgore fententia Di'vortij, prafumuntur
£jj'e in bona fide^ nee Adultenum ccmmittent. ibid. nu. 1 7.
C I !• ) Although the D. D. are much divided in this Point of
fecond Marriage, whilft the Divorced Parties are alive h yet the Law
^generally feems much more to incline to favour fuch fecond Marri-
ages, where the Divorce is ex caufa pr^cedenti, than where it is, ex
caufafubfequenti't For when it happens, ex caufa pracedenti^ as
when the Degrees prohibited are violated, Precontrad , Frigidity
in the Man, Impotency in the Woman, or other perpetual Impe-
diment, the Marriage was void and null ab initio^ it being a Rule
and a truth in Law, That non minus peccatum jungere non Conjun-
gendos.y quam feperare non feparandos i But where the Divorce hap-
pens ex caufa fubfequenti^ there the marriage was once good and va-
lid in Law, and therefore (as fome hold j indijjolubk i and that fuch
fubfequent caufe can have no iniiuence quoad 'vijiculum Matrimomj,
but only quoad feparationem a Menja S'ThorOyVfhkh is but a Partial
or Temporal, not a Total or Perpetual Divorce. A. was Divorced
-from his Wife for Incontinency, he after took another Wife, living
the firft Wife, Adjudged, the fecond marriage was void, becaufe the
Divorce was but a Menfa d^ Thoro^ and not a Vinculo Matrimonij.
Rye and Juliamb's Cafe. More\ Rep. Zanches fays, that Quoties
Matrimomum dijj'olvitur^ fi id ft ob utriufq'-, Conjugis perpetuum
impedimentum^ utriq\ alia Nup>tia interdicenda funt : Si 'vero ob
-alterius tantum impedimentum lUi ifjierdicuntur^ccncefa non impedi'
to Licentia ad alias tranfeundi. Sanch. Matrim. lib.'J.DiJp.p^.nu.^^'J.
•And again in tlie fame place, Firo ratione Frigiditatis jeparato^ ccn-
ceditur Fosmina Licentia ISlubendi alij\ ea -viro denegato : Et FiS'
rnina ob impedimentum feparata imerdi^o alio Conjugio^ id non dc
■negatur fed ccncedttur viro* ibid. Q:c. Laudabilem de Frigid, d^
X.2. in fin. ^^.q. i.&c. ex Uteris 3 ead. tit, Likewife the .S^ww^
Afienfs hziht\\c fame in fubftance, (i ArBatio alligetur ( fab audi
qHamcmei'',impme7itJ.am Fo:m.iniC) fintim pctcfi Diz:crtium fieri hoc
modo
of Alimony. 505
wodo : vocabantur Matrons fide digna^ d^ in Nuptiali. opere ^xper^
/^, ar.ff. de ventr. inj^e^. I. I . 'verb. igitur~j^Q, Et fi Mul'ieres ajje-
rant earn ncn pojje fieri Naturaltter Matrem, tunc fiattm fotefi Di-
'vortiumfien^ d^ dabitur viro Licentia mm alia contrahendi. Sum.
Afienfi. in I 8. de Divor, propter Impotent, tit. 37. /o. 233. as afoie"
faid : yet Tofiatus on the ipth oi Mat. (dAi\\x\\d,iFornicatio nonnja,-
Ut fiimpliciter ad dirimendum Matrimomum.fcd ad tollendam Ccha-
hitationem Tofiati Index, ^erh. Matnmon. as appears alfo by the Ca-
non Law. Extra de Divor. dec, GaudemtiSjSidQuare fiatfc Di'uortio
(fays Tofiatus again j non tranfeatur ad aliud Matrimonium, 'tofi-at,
ibid, for which he there quotes St. Hierome (0), who in this Point is ^0) D. Hieron:
oppofed by St. Ambrofe (p). Poffibly the dirterent conftru(ftions that in Mar. tom.^.
Divines and Lawyers do make of this word l^Di-vorce ] may not be '^o- ^- ^nd
the lead reafon of the difi'erent Opinions in this Point •■> for Adam 'g^* ^ *°
Tanner tis (as atorefaid) tells us. That Jurifia D'i'vortij 'voce utuntur ^p) d. Ambrof.
pro DiJJoluticne Matrimonij etiam ejuoad 'vinculum^ ut conftat ex ubi iupra.
tototit. if. de Dyvortijs. AdamTannerus.Tofn.^. Dijp.^.de Matrim.
q. 5. Dub.'y. de Divortio C0L2 27^2. nu. 74. d^' varijs dc caufis folvi
f.oj]ey ut vtdetur in tjfd. Legib. d^ apud Greg. Syntag. jur. far. 2 ,
fib. p. cap.*). Tbeolvgitamen ea 'voce Divortij folumfigmficant ftpa'
rationem inter Conjuges^ aut quoad Cohabttati&nemy aut quoad Ibo'
rum. Tanfwus nbi jupra.
(12.) K being Divorced for Tncontinency of the Wife, he after-
wards marries P. the Daughter of i?. living the firft Wife. By the
whole Court that is a void Marriage '-> for the Divorce is not, but
a Menfa d^ Iboro^ and does not diilolve 'vinculum Matrimonij.
And by Whitgifit Aichbifhop of Canterbury. So alfo is the Opinion
of Divines and Civilians (q). As alfo in Dame Vo-wels Cafe againil: (^) HllL 44
Weeh formerly hinted. In Dower it was refolved, That a Divorce Eliz. Kyt yerf.
Caufia Adultevij is no Bar of Dower, becaufe it is but a menfa & Vulcombe m
r/^tfro,and not a Vinculo Matrimonij. And it was faid by D<««/e/jthat ^^^''j j^pp.
an Elopement is not a Barr of Dower ad ofiium Ecckfia. And cafe 893*
Judgment for the Plaintiff (r). (0 Dame
Agar of Kingfion upon the Thames was fued in the Ecclefiaftical ^^l^^lj'^^
Court for beating his Wife, and for calling her fVhore^ and was Sen- ^
tenced there to pay his Wife three (hillings a Week for her Alimony y ^5) Agaii Cafe
and divers Fines were impofed upon him for not performing thereof, in Brovvnl.
and a Prohibition was granted, and alfo a Habeas Corpus^ to deli- ^^xP:,^^^^*
ver Agar out of Prifon (s ). Car. 2. C*. B.
There was a Cafe of late years, where a Man married the relid Rot. 2042.
of his great Uncle, he married liis Grandfathers Brother's Wife by Harrifon verf.
the Mothers iide, and it was held lawfUl, it was the Cafe of one ^^p^^^'^f"^
Harrifon againft Di.BurweU (t). But where a Man married his ^^^f '
Wives Sifters Daughter^ it was held un'awful^ and after a Prohibiti-
tiort
50^ Of Divorce 'j as alfo
: tion a^ConfuItation in that Cafe was granted («). But Marriages
I EI. 228.' ^^* ^^^^^ Cozen-Germans are in the faid cale of Harrifon againfl Dod:or
Afj«»'s Cafe. Bwivell reported by Sir John Vaughan to be lawful i in which Cafe,
' vid. dia.cafe. as alfo in the Cafe of H;V/ againlt Good^ reported likewife by the faid
"d"ca? ^ 'U ^^^ J^^^^ VaugJjan Chief Jultice, the Reader may find what Marri-
verf. Good in ^8^^ ^"-^ Lawfu!,and what not, what Marriages are prohibited within
Vaugh.Rep. the Levitical degrees, and what Marriages are by Gcds Law other-
wife prohibited.
In the Cafe between JVehfier and Bury in an Ejeclione Ftrma^ a
fpecial Verdid: was given upon Divorce between Burie and his Wife
>Co. 5. Biifiu caufa Fripditatis, and that his Wife for three years after his Marri-
C^(t, ^ age remanjit virgo intaBa^ propter perpetuam impotentiam genera-
40EUZ. C. B. fiQfiij i„ 'viroy d^ quod vir fuit tneftus ad generandum ■> and in this
fpecial Verdi(ft all the examinations of the WitnelTeSjUpon which the
Judge in the Ecclefiaflical Court was moved to give his Sentence,by
which the perpetual difability of Burie ad Generandum was manifefl,
were read i and by which it was pretended, that the IfTue which he
had by a Second Wife was illegitimate, and this was the doubt of
the Jury i and it was adjudged that the IfTue of the fecond Wife was
Lawful, for it is clear that by the Divorce {caufa Frigiditatis) the
Marriage is difTolved a 'vinculo Matrimmij^ and by coniequence ei-
ther of them might Marry after s then admitting that the fecond
Marriage was avoidable^ yet it remained a Marriage until it was
VijJ'olved^ and by confequence the IfTue that is born during fuch Co-
'verture ( if no Divorce be in the Life of the Parties ) is Lawful, Et
homo fotefi ejje hahilis df inhabilis diverfis temporibus^ and Judg-
ment affirmed in Error,
A. was indided upon the Statute of Trimo Jacobi for having
tiV9 Husbands. It was found that A was Lawfully Married to N.
and before the Judge of the Audience fhe fued a Divorce againft
\T'afch. 12 Car. P. propter f^vitiam : whereupon it was decreed th^t propter favi'
B. R. Porttr'i tiam of her Husband,fiie fhould be feparated a Menfa & IhorOi and
'Cr ^ DaT ^^ ^^^ exprcfTed in the Sentence, that fhe (hould not marry any other
during the Life of P. file afterwards (P. Living, and fhe knowing
thereof J) took to Husband J. S, The Queftion was, whether that
were Felony witliin the Statute, It was faid in this Cafe, that this
being a Divorce Caufa S^vitia^ was but a fepjttation a Menfa &■
Thoro i and not a Diffolution a vinculo Matrinionij , and therefore
that the Marriage continued between them. The Court doubted,
whether the Vrovifo in the faid Statute did extend to every manner
of Divorce i but inclined to be of Opinion, that fhe was not within
the Vrovifo ; for if this fliG-ild be fuffered,many would be Divorced
upon fuch pretences, wherefore the Court advifed the Woman, to
procure Pardon to avoid the danger of the Statute.
Debt
of Alimony. 507
Debt againli Husband and Wife, as Executrix of her former
[Husband ; the Defendants plead by Atturney, that they were Di- frolZc^L
I vorced before the Writ brought s It was Adjudged, that the Writ cro. par. u
Khould abate 5 for it (hall be prefumed, the Divoce continueth/if
the contrary be not (hewed. In another Cafe, being for Debt upon
an Obligation, where the Defendant faid, that at the time of the
making of the Obligation (he was Wife to J» S. who is yet w Mich. 45 8r 44
'vitaj and fo non efi faBum j The Plaintiff faid, that after the E'iz- ^-R Sfd-
making of the Bond, there was a Suit in the Eccleliaftical Court be- ^^J^^^^^ ^^'
tween the faid J,S. and the Defendant, for that the faid J.S» had cro.par.i!,*
another Wife alive at the time of the Marriage betwixt them, fo as
the Defendants Marriage was adjudged void. It was the opinion
of the Court, that this Divorce was but Declarative^ for it was
void ah initio^ and fo the Defendant folc always, and adjudged for
the Plaintiff.
The Wife Libelled againft the Husband in the Eccleliaftical Court 5^. - -.
for Alimony, becaufe he beat her fo as (he could not live with him , mond^i'dfc.'
a Prohibition was prayed, but denied by the Court ; and it was Morfi Rep.
held in this Cafe, that the Wife might have the Peace againft her
Husband for unreafbnable correction.
By the Statute of i Jac. cap. 11. it is Felony to marry a fecond
Husband or Wife, the former Husband or Wife living ", out of the
generality of which Law the Lord Coke makes five exceptions, r r n «
(i.) It extends not ( fays he) to any perfon, whofe Husband or c.av.vid. 22'E!
Wife is continually remaining beyond the Seas by the fpace of feven 4.CoDfuIt3rioss
years together i and notice is not material, in refped of the com- 5' ^"^^^ ^^fe
morancy beyond Sea. (2.) It extends not> when the Husband or "°'9'"5'72.
Wife (hall abfent him or her felf, the one from the other, by the
fpace of feven years in any parts within his Majel^ies Dominions,
the one of them not knowing the other to be living within that
time ; here notice is material, in refped the Commorance is within
the Realm. (3.) It extends not to any perfon that at the time of
fuch Marriage is divorced by any Sentence had in the Eccleliaftical
Court. (4O Nor to any perfon, where the former Marriage is by
Sentence in the Eccleria(l:ical Court declared to be void and of no
ctfedt. (5.) Nor to any perfon, for or by reafon of any former
Marriage made within the age of Confent,
If the Man be above fourteen, and the Wife under twelve, or if
the Wife be above twelve, and the Man under fourteenjet may the
Husband or Wife fo above the Age of Confent, difagree to the
Efpoufals, as well as the party that is under the age of Confent : for
the advantage of difagreement mull be Reciprocal. And fo it was
Refolved by the Judges and Civilians, Tri?i. 42 Eliz,. B. R. in a co.ubi fupii»
Writ of Error between Babingtor^ and Wfirner. So as if either
G g g g party
5o8 Of Divorce-^ as alfo
Party be within Age of Confent, it is no former Marriage with-<
in the Ad aforefaid. i
^ It is commonly as well as formerly faid, that ti.ere are two kindsi
Co ibid ^^ Divorces, the one that diflblveth the Marriage a 'viculo MatrJ
moni-i ; as for Precontrad, Confanguinity, dec. The other a Menfa
& Thoro, as for Adultery, becaufe that Divorce by reafon of Adul-
tery cannot dillblve the Marriage a 'vinculo Matrimonij, for that
the offence is after the jull and lawful Marriage. And the faid
Stature of i Jac. cap. Ii. doth in refpedt of the generality of
the words, priviledge the Offender ( in cafe of fecond Marriage,
where the former Husband or Wife is living ) from being a Felon,
as well in the cafe of Divorce a Menfa & Thoro^ as where it is a
'vinculo Matrimomj j and yet in the Cafe of the Divorce a Menfa
& Thoro^ the [econd Marriage is void, living the former VVifc or
Husband. And if there be a Divorce a 'vinculo Matrimonij^ and
the adverfe party avpeal^ which is a continuance of the former Mar-
riage andfufpendsVbe Sentence, yet after fuch a Divorce the par-
ty Marrying is no Pelon within the faid Statute, &c. although the
Marriage be not lawful.
(13.) Alimony^ although it properly fignifies nourifhmcnf or
maintenance, when llridfly taken', yet now in the common, legal,
and pra61:ical fenlc, it (Tgnihes that proportion of the Husbands
Eiiate, which the Wife fues in the Ecdefiaftical Court, to have
allowed her tor her prefent fubfiftence and livelyhood, according to
Law, upon any fuch feparation from her Husband, as is not caufed
by her own Elapement or Adultery. By this Elopement is here un-
derltood, meant, and intended that voluntary departure of a Wife
from her Husband to live with an Adulterer, and with whom (he
does live in breach of the Matrimonial Vow, whereby (he incurs
the forfeiture of her Dower, unlefs her Husband upon her free and
voluntary fubmijTion (hall think fit by way of reconciliation to re-
ceive her again, and readmit her into the former conjugal relation
Cj)Sr.Weflra. (^)' In which fenfe a Woman thus defcrting and forfaking her
2. cap. 34. Husband, is faid to Elo^e, whereby the Law will not compel him in
(b) Ror. ciauf. ^^^'^ "^^ ^° ^^^^"^ ^^'^ Alimony, on which word Mr. Blu7Jt in his
An. 7 H. p. i! Nomo'Lexicon makes mention of an ancient Record (/-), wherein
m. 3. the fame thing is called rationabile epverium ', This Alimony the
Wife that Elopa or departs from her Husband with an Adulterer
(though Ihe departed with her Husbands confent) yet lofes, together
with Dower or Jointure^ as appears by that remarkable Cafe of
fOSup-averb. ^'^^John de Camois before recited (c). And the Husband, from
Addmy verf. whom his Wife departs, and lives with an Adulterer, (hall not be-
compelled to allow. her any Alimony.
C14.) Not-
of Alimony.
(14.) Notwithftanding thePremilTes, regularly the Husband is
« obliged to allow the Wife isXimony pendente liteyarg.l.Jineget.ff. de
I lib. agnof. (^ Sanch.de Martdib.2,Diff. 41 .««.5 1 . and afterwards in
i moft cafes of reparation not occalioned by Elopement or Adultery as
aforefaid, nor in cafe of a total Divorce by reafon of fome legal
impediment, whereby the Marriage was Null and void ah initio diSf.
Sanch.Tom.2.lib.'] .Vifp. P3. »». 22. This Alimony in flridnefs of
Law is a duty properly due from the Husband to the Wife whilft
(he cohabits with him; for by the Canon Law if without any de-
fault of his, (he does of her own accord depart from him, he is
not obliged to allow her Alimony during fuch her wilful deferting
of him, though (he be not charged of Adultery, c.hac imago 3 3.^.5.
It being a rule in Law, Qui non facit quod debet, non recipit quod
cfortet.l.fi ea C. de Condtt. infert. d^ I. Julian ^* affinis ff. de a^li,
€mpt. But if (lie depart by reafon of fome dffault in bimi as bfir
£aure_of'Cruelty orllie likjg,Jn that cafe he Jhalj be compelled to al-
low^eT^&owy > for the Lawunderftands her as a djitiful Wife^fo
long'anris^attributable'only to him and no ^a^ jnyutablejoheTj
tbat (he is con(irained to (ecm otherwife, arg. Ljure civili.ff.de Cand.
0^^'^demQnfi> ^ Lyn.inl.efui in uxorem c.de Ne<j. gojl.nu.i.^ D. D,
Communiter, But if (he depart_ofher own default, jhe Husband is
iTg£^bligedto^lIow~Her Alimony^ albeit he had a coiiUdefable ~
Dowry wItirhen,_^idLoji theother lide, if the Husband be in the
^It^ndlErHepart from him, JTe is oblj^ to allow her Jlimonj^
^oughhehad nothing with lier. 7o» Lufufc.prove^ras.de Donat.
1nt.'vir.&' ttxJBarbo[.2 .■p.rubr.ff.folut.matr.nu.^^. And in cafe it be
doubtful, through whole default it is, that they live afunder, the
Law in that cafe concludes, that the party that was lafi in fault, is
not leafi m hultj.illud. l^-ff* de peric. d^ commod.rei vendit. And
therefore if the Wife, who by her own default did voluntarily de-
part froQi her Husband, (hall after repent, and (ubmiting her ielf to
nim, (hall defire reconciliation, and to be admited to cohabitation
with him, he then refuting her (hall be obliged to allow her Ali-
fnony, fave in the Cafes aforefaid. Glof.c.Jignificafii.'very. materiam
in fide Divort.uhi Hofi, nu.2, z/erb.rejlituti.jo. Andr.nu.J.fi: d^ D.
D, Communiter. Ontheotlier fide^ if^byxeafon of the cruelty oL,
jth^Husbandjhe^Wnil^^ him,^^iid the Hus;^
"BanTniairoffer fufficient fecurity or cailtion for liis future "o;ood Be-
liaviourjoTier, and her^aptyand peace"vntlTTTrm, ai^ the cruelty
"orTlPu(age not luch^juTthatby (ucircaiidoi£jlTe^lfe£^a^^
jatefy may_be_^mdoubtg[Tylecu^^ (lie notwith(landing_re(u(e^
toremriT^if^hcaiethe LiwjmllliotcompelJiHTi loallow heg_
^limovy. Quia ultima ea culpa uxori meet* Ferret, concil.^^.nu.i^.
Barl;os.2.pff, Jhlut. matrim. nu.^^.
Gggg 2 (15- Bv
5 op
5 1 o Of Divorce 3 as alfo
(150 By the Civil Law, if a Dowry or Marriage-Portion,
v^ith a Wife be promifed and not paid to the Husband, he is]
not obliged to allow her Alimony s Glofs, Auth de non eligenA
fecimdo Nuhentcs, The reafon whereof is, becaufe fuch Portioiil
ifuafi in prettum datur ; /. ^ro onerihus, c. de jur. Dotium. But i['
by reafon of foine misfortune, her Parents or Yuch as undertook for
The Payment thereof, do after become infolvcnt, (he lliall notwith-
Aanding have Alimony, even by that Law, which In other re-
Tpec^s feems fomcwhat fevere in this Point, unlefs you can affedt
them with Fraud in promifing what they knew they could not per-
form. Barbos.ff, folut. Matri. nu. 7 1 . Or in cafe two perfons lay
claim to the fame Woman, each pretending fhe is his Wife by Mar-
riage, and the one of them move to have her kept under Se-
queHration till the Cafe be decided i in this cafe (he Ihall have
Alimony pendenie lite of that Perfon at whofe motion or inlbncc
(he is (o fequeftred. /./ pro luforio.ff. de appellat. But if the con-
troveriie be only between a Man and a Woman, touching tlie vali-
dity of a Marriage, as whether a Marriage or not : in fuch Cafe no
Alimony is due, till fome Matrimonial Proof appear, or that it doth
fome way con}fare de Matrimonio •, but wherever a Marriage doth
appear, there Alimony Ihall be due pendente lite ; arg. I. fi negeh
ff. de lib, Agnofc.
ii6.) John Owen lived apart from his Wife : And upon Pett-
tson of the Wife to the Juftices of Affife for Maintenance, they
referred it to the BiOiop of Bangor, who ordered that he (hould
pay tohisWite 10 /. per ^«. which was afterwards confirmed by
Decree in the Council of Marches of TVales. And becaufe that
John Owen difobeyed that Decree, and did not pay ro /. per Ann.
the Council fent a Meflenger to apprehend his Body, and caufed his
Goods and the Profits of his Lands to beSequeftred. And Henden
prayed a Prohibition : For that Alimony was not within .their In-
ilrudlions. Ruhardfon demanded of him, if they could grant
.Prohibitions, if they meddle with a thing which belongs to Ec-
-clehaliical Power, where they themfelves have Power. Harvey
was of the fame opinion/or this Court fhould preferve other Courts
in order. Telverton faid, for the SequeHration of the Lands, they
could not do that. Rtchardfon, thc7 have not any power to fell
the Goods. Tlie Ecclefiaihcal Court is the proper Court for Ali-
mony \ and if the Perfon will not obey, they cannot but Excom-
municate him. And by Yelverton^ whjgn that comes to them from
(-vj Mich 8 Car. ^^^3^?^^ ^^ ^^ confirmed, they cannot but walk in the Steps of
i:.2,joh.0mns theBiihopi and a day was given to fliew why a Prohibition fliould
Cafe Hitityi not be granted: and fo it was ruled (s\
('17.J Dame
of Alimony. 5 1 1
(i 7. j Dame Sherky Wife of Sir Henry Sherley fued in the High
GomniiflTion Court for Alimony, ^.vd Hit c ham moved, for a Pro-
hibition j and faid that Alimony is not within the Jurifdidton of
the High CommiiTion -. for the Court of High Commijlion is to try
Ardim Regni, which are not triable by the Common Law. Richard-
fofiy the Power of the High Commiilion is not de Arduis Regni^
h\xt oi Here fie S-, and fuch other things Ecclefiaftical i and he iaid,
that the Court of High CommilFion had fpecial words in their
Commiilion, but not in the Statute of prima; and that the Sta-
tute de primo had no Prerogative in that ; and fo the QLieltion is,
if the King may by the Common Law grant fuch a Commiilion. .
Hutton faid, that by the fame reafon as he may grant fuch a Com-
miilion, tliey may grant Commiilions for all other things. Teher-
ton^ r marvel how that came within their Commiilion : he (aid
that in tempore Jacobi, upon a debate before him. Sir Edward Coke
fo fully fatisHed the King. And this matter of Alimony was com-
manded to be put out of their Commiilion. And upon that Ri-
chardfon faid to Hitcham, move this again when the Court is full,
for we may advife of this — • Et adjurnat. &c. (t) One Broke was CO Dame
committed by the High CommiiLioners to the Fleets becaufe he re- ^unUfl^it^'
fufed Alimony to his Wife, and that being returned upon an Ha-
beas Corptti^ he was delivered. — — Brokers Cafe. Mores Rep.
C18.) The Wife complains againft her Husband in the Ecclefi-
aflical Court Canfafavitia, for that he gave her a Box on the Ear,
andjpit on her Face., and whirl' d her about, and called her damned
Whore : Which was not by Libel,but by Verbal accufation, after re-
duced to writing. The Husband denies it, and the Court ordered the
Husband to give to his Wife 4. /.'every week, pro expenfis litis and
Alimony. Barkley and Henden moved for a Prohibition. The Suit
is originally Caufaftevitia^ and as a Cafe wherein they AfTefs Ali-
mony. And now for a ground of a Prohibition, it was faid that the
Husband chaiiifed his Wife for a reafbnable caufe, as by the Law of
the Land he might ', which they denied and faid, that they had
Jurifdidion in thefe matters </e/<^wf/<a,&c. And afterwards that the
Wife departed, and that they were reconciled again. And then
that reconciliation took away that Savitia before, as reconciliati-
on after Elopement. Richardfon, it was faid here,; that the Suit was
without Libel, but that is no ground of a Prohibition, for fhe pro-
ceeded upon that matter reduced in Article?, and we cannot grant
a Prohibition if tiiey proceed in their Form ; For we are not Judges
of their Form, But if they will deny a Copf ( rf the Libe^ a Prohibi-
tion lies by the Statute. You fay, that an Husband may give rea-
fonable chaltifement to his Wife, and we have nothing to do with
it : But only that the Husband may be bound to his good Behaviour
by
512 Of Divoce 5 as alfo
by the Common Law. And the Sentence in caufa favitia is a
Menfa &• Thoro^ and we cannot examine wiiat is Cruelty y and what
not. And certainly the matter ailed ged is Cruelty, for fitting in
the Face is punilhable in the Star-Chamber, But if the Husband
had pleaded a Jaftirication, and fet forth a Provocation to him by
his Wife, to give her a rcafonable caftigation, then there would be
fome colour of a Prohibition. Henden^ we have made fuch an Al-
legation, and it is abfolutely refufed. Huiton-, perhaps he is in con-
tempt^ and then they will not admit any Plea-, as if one be Out-
lawed at Common Law he cannot bring an Adion. But they ad-
vifed the Plaintiff to tender a Juftitication, and if they refufed it,
(«) The Wife then to move for a Prohibition (u).
oi^r.clobny (ip.) B. was ordered by the High CommilTion Court to give
^S*^"^ ^^^ Alimony to his Wife, and was bound in an obligation of 300 I. to
Hftlty'i Rep. ^'^^ ^^ ^'"^^ Dodtors there, to give her Alimony, and to ufe her as
his Wife •, And now he is fued there again, and it is alledged againft
him that he had committed Adultery with divers Women, and
that he had not given Alimony to his Wife, and thereupon B. was
put to his Oath, who aufwered, that as to the point of Alimony
he was not bound to anfwer, for that he was bound in an obligation
to perform it, and alfo that he was fued to difcover upon his Oatii
the Forfeiture of the Obligation, and for that the Defendant would
make no otha" anfwer, he was committed to Prifon, and being
brought hither by Habeas Corpus, the Court was prayed that he
might be releafed for the reafon aforefaid. Coke^ Gawens Cafe
which was ruled here in TVrays time, was the fame Cafe in effed:,
and it was ruled that the Eccleliaftical Court may not examine him
upon his Oath in fuch Cafe, and per Curiam B. was Bailed till the
next Term, for that that was the laA day of the Term. Cokcy
for that there is an obligation taken in this Cafe, 1 will grant a
Prohibition for taking an Obligation for that, if it be moved, and
it was not well done to take the obligation to one of the DoHors^
but wc ufe to take the obligation in the Kings Name, Mieh. 5 E.
^.B.R.Rot.\^7^. The Statute of- 2^4. gives Authority to Bifhops
to Fine and Imprifon for Here fie ", and where one Re^er had given
a Legacy to Bifhop Stephens^ for which he fued the Executor, who
being for not payment thereof Excommunicated, faid that he was
not Excommunicated before God, although he were before Men,
for his Corn grew very well •, for which words he was after Impri-
foned, but he was Bailed here per Curiajn upon an Habeas Corpus^
lor that it was not Herefie^ becaule that Court had Autho-
rity to examine fuch things which are given by the Statute of
10 H.y. One faid that the Tenth part of Tithes was not due Ju-
re Divmo^ lor which words he was Imprifuned, whereupon the
Habeas
of Alimony, 512
i
Habeas Corpus "w^s brought, and that depended till 14 H 7. at
which time it was adjudged tliat it was not Herejie, and that the
Court had Jurifdidlion to examine that, it being given by Statute.
And it feems to me that the High CowmiJJion Court had no power
to Fine or Imprifon for Alimony. Hill. 1 2 Jac. upon an Habeas
Corf us by one CW, the return was that he was Imprifoned by the
High Commijfion by that Warrant, 'viz,* We command you to take ^- .
him and Imp-ifon him for manifefi Contempt of the Court, for B.R Br^^o«'s
that he being ordered to receive his Wife, and to enter into anobli- c'afe.Ro//iRep.
gation to ufe her as his Wife-, he refujes fo to do. Coke, he (hall
be Bail'd, for that he could not be imprifoned by them for Alimo-
ny, nor take obligation to perform their order.
Sentence was given in the EccleliafUcal Court, that the Wife Hill. laJac.B.
fhould be feparated from her Husband, propter f^^evitiam of the ^' ^y^t^ die.^
Husband, and Alimony allowed her there : the Husband prayed a ^^°' P* ^*
Prohibition, fetting forth he delired a Cohabitation^ and profered a
Caution thereby to ufe her fitly. The Court denied it, becaufe
the Court of the Ordinary is the proper Court for Allowance of
Alimony.
A Libel was before the High CommilTioners, which fuppofed
divers cruelties ufed by the Husband againfl: the Wife i, for which
(he was enforced to depart from him, who would not allow her
maintenance, and therefore (he fued before them for Alimony j But
becaufe it is a Suit properly fuablc before the Ordinary, wherein if
there be wrong, the pa^ty may have an Appeal ; and although it
be one of the Articles within their Commiffion to determine of" i
yet becaufe it is not any of the Claufes within the Statute of i E. 6.
for which Caufes tlie Commiflfion is ordaiiied, the Court awarded
a Prohibition.
CHAP.
5H
CHAP. XXXVIL
Of Defamation.
1 . TVhat Defamation is ; ho-w many -ways it may he \ and where
CogniZjable.
2. Two "Ways of profecution at the Civil Law in Caufes of De-
famation.
3 . Prohibition for fuing in the Ecclefiaftical Court upon the words
£ Drunkard and Drunken Fellow. ]
4. Several differences in reference to the Cogniz.ance of the Tem-
poral and Spiritual Courts in point of Slander.
5. Whether Aciion lies for calltng one Quean?
6. Prohibition for fuing in the Eccleftafiical Court for words tend-
ing to the obfirullion of a Marriage.
7. Matters determinable at Common Law, not Cognizable in the
Ecclejta/l-ical Courts,
S. Whether thefe words [Thou haft taken a falfe Oath] he A^i'
enable, and in what Court ?
^. Whether ABion lies at Common Law, for faying Thou art
a Whore, &c.
10. Words of Slander to the hindrance of Marriage-^are ABiona'
hie at the Common Law.
11. Defamatory words £ Thou art a Bawd and keepeft a Bawdy
Houfe ] whether and where ABionable ?
12. To fay h. is ^Cuckold, and that B. had lain with the Wife
of A, is a Defamation fuable in the Spiritual Court,
13. The difference as to Cogmz,ance between the words \_ Thou art
a Bawd, and I will prove thee a Bawd ] and the words [Thou
keepeft a Houfe of Bawdry. ]
14. To y^/ [ Thou art a Drunkard or a Drunken Fellow ] whe-
ther fuch words are fuable in the Ecclefafiical Court ?
15. The words [ he is aCuckoldy Knave] are fuable not in the •
Temporal^ hut in the Ecclefafiical Court.
1 6. Whether the calling of Pimp, Common Pimp, he ABionabk,
and in what Court ?
17. Welch Jade, expounded to be Welch Whore, and cognizable
in the Ecclefafiical Court.
18. Whether the words Quean or Bafe Quean, be ABionabk in the
Ecclefafiical Court ?
I p. Anions
\
Of Defamation, 515
1 p. ABion in that Court for Scandaliiing a Parfon.
20. Whether ABion lies in the Ecckjiafiical Court -^ for faying of
one that kept a ViBualing houfcj that Jhe kept a Houfe of
Bawdry.
21. Whether the words [Thou art a Pander] he aBionahle at
the Common Laiv ?
2 2 . Church-wardens presentment of a Feme Covert upon a Com-
mon Report for Adultery, an ABion of Dchm^don brought in
the Ecclef apical Court thereon.
23 . Whether ABion upon the Cafe for words lies againfi an Infant
of jeventeen years of age ?
24. Several other Cafes at the Common Law pertinent to this
fubjeB of Defamation i what of them cogniz,ahle m the
Ecclefafiical Court '•> and wherein the Prohibition Ue{ or
not,
(lOT^^^F A MAT ION, properly fo called, is the utter-
I 1 ranee of reproachful Speeches, with intent of rai-
^-^ fing an ill Fame of the party To reproached i, Defa--
mare, efi in mala Famaponere : Bartd.turpia.ff. de Legat, 3. This
extends it felfto Writing, as by defamatory Libels !> as alfo to
Deeds y as by reproachful Poliures, Signs aiid Geitures •> Lind. c.
authoritate. verb, quicunejue. in gloff. de Sent. Excommunicat. And
as for the moll: part it proceeds of malice, implying matters ei-
ther of Cnwe or D^/e (5?, fo it generally aims at fome prejudice or
damage to the party defamed. Whatfoever Cognizance the Tem-
poral Laws of this Realm do take of Defamations by vertue of Pro- pjk'^^^j^^,;
hibitions and Actions upon the Cafe \ yet it will not be denied, but fuppofe in a-
that the Cognizance of Defamations, where they are duly profecu- ditu quam pro-
ted, doth properly belong to the Spiritual Law, fpecially where the P^^^'^^^t, &c.
matter of the Defamation is only Ecdefiaftical. ^mu7el-'
(2.) In all caufes of Defamation the ipzxty' defamed had his E- //^^, Hob.Rep.
ledion by the Civil Law, whether he would profecute the Defa-
mer ad VindiBam publicam, or ad privatum interejfe i the former
whereof was made choice of, where the defamed aimed more at
the Defamers (hame, than his own Interefi: i and chofc rather to
reduce him to a Recantation, than augment his Ca(h by his own
Credits diminution •■, /. in con^itutionib. ^. ult.jf. L. Cornel. The
other, w;;:,. ad privatum interejfe, was cholen by fuch defamed ones
as vakicd their Credit at a certain Rate, and chofe rather a Pecuni-
ary Compenfation , than an unprofitable Pvecantation i aiming
more at their own private fatisfadion , than at the Defameis
publick difgrace. /. (lipulationem. ^. plane, ff. de verhor. oblt-
gat. & I. fi quis ah alio, ff, de re jud/c. But both of thefe the
H h h h De-
AII Aftions of
ti^ of Defa?7/atio?L
Defamed could not have > for having determined his Eledion, he
was therewith to reil[ fatisfied i only having obtained a Sen fence a-
gainft the Defamer, for his recantation or publick difgrace by profe-
cutinghim ad ^uhlkam 'v'mdiBam^ he might poflibly have in Lieu |
thereof a pecuniary Recompence by way of Cowmutatton, The *
Profecution ad piblicam vindiBam was left to the determination of
the EccleiialHcal Jurifdidion, the other to the Cognizance of the
Secular : Much in conformity to what the Laws of this Realm in
Cafes of Defamation Teem to fay, 'viz. where the Profecution is
meerly for the punilhment of Sin, and Mony not demanded, there
the Spiritual Court (hall have the Cognizance i But where Mony is
demanded in fatisfadion of the Wrong, there the Temporal > fpe-
cially if the Defamer undertake to juftirie the matter, or the words
. , exprefs or imply a crime belonging to the Cognizance of the Com-
E. ?. c!Tu ' ^^^^'^ L^^* Thefe Adtions ot Defamation are of a higher Nature,
than they feem primo ijituitu to be Ca Mans good Name being E-
quilibrious with his Life \ ) and therefore the Law calls them Aci^i-
ones prajudkiales^ that is, fuch as draw leiTer Caufes to them, but
themfelves are drawn of none.
C^.j One libelled againft another in the Ecclefiaftical Court, for
faying That be ivof a Drunkard^ or a Drunken Fellow., and an idle
Drunken Fellow, and by the opinion of the whole Court a Prohibi-
tion was granted, and for fuch words a Prohibition was granted in
(e) Mich. 8. ^■^' "1 the Cafe of Martin Calthorp (e).
Car. B.R. (4.J One moved at the Bar for a Proliibition to the Ecclefia-
fH'^oms Cafe f^ic^j Court on a Suit there depaiding for calling one Bawd. Jcnes
J n s cp. Ji^iftice conceived, that thefe Diiferences ought to be oblerved,
where a Man calls a Woman Whore., or fuch like Slander, for
which fuit lies in the Eccleiiadical Court againit the party fif
the matter appear) in that Cafe Suit lies for Slander there, and
no Prohibition lies j e contra., if a Man be called Thief., Traytor.,
or the like, whereon no Suit lies for the Principal in the Ecclefia-
(lical Court ", but at the Common Law, if one be fued for foch
Slander in the Ecclefiaftical Court, a Prohibition lies. If a Man
call one Bawd., for which Suit lies at the Spiritual Court and alfo
at the Common Law \ there if the Suit be for Slander in the Ec-
clefiaftical Court, in that cafe no Prohibition lies, for the party
hath Elcdiion to fue in which Court (he pleafe : So if a Woman be
Slandred in her Reputation, whereby (he is hindred in her Mar-
riage i (he may fue either at the Common Law or in the Spiritual
Court for Slander. And lallly, if a Man fpeak any words, for
which no Suit lies at Common Law, nor are fuch as concern any
thing whereof the Ecclefiaftical Court takes Cognizance, it feems
that in fuch Cafe if Suit be in the Spiritual Court for Slander., as
for
Of Defamation. 517
for Convitia^ a Prohibition lies, as for calling one Kna've^ Drun'
m^ kard^ or the like. Quisre of that, the Chief Juftice agreed to that,
\ the others faid nothing therein (f). rjj l-^jj,^ 2^^
I (•).) A Suit was commenced in the Ecclefiaftical Court, where Car.B.R. A-
the Libel was, that he called the Plaintiff Quean^ or words to nonyn^us.
^that effed:, or importing the fame Senfe ■•> in this Cafe a Prohibi- /"""^^P*
tion was granted : (i ) Becaufe no Adion lies for that Word Quean,
(2) For the uncertainty thereof (£). q^ Anonr-
(6), The Defendant faid to one Anthony Elcocl ( who was mus. Lateb,
a Suiter to the Plaintiff , and with whom there was near an ^^P*
Agreement of Marriage ) I know Davies Daughter ivell , jlie
did dwell in Gheapfide, and a Grocer did get her vnth Childy
and the Plaintiff declared, that by reafon of thefe Words, Elcock
refufed to take her to Wife. Adjudged, that the Adion would
lie at the Common Law, and the Suit was not to be in the Spiri-
tual Court for Defamation, but at the Common Law, for that
(he is prejudiced in that which (hould be her Temporal advance-
ment ■> and the ground of the Albion is Temporal, The truth of
the Cafe was this i an Adion upon the Cafe for a Slander was
brought by Ann Davies againft John Gardiner : That whereas
there was a Communication of a Marriage to be had between the
Plaintiff and one Anthony Elcock h the Defendant to the intent to
hinder the faid Marriage, faid and publifhed, that there was a Gro-
cer in London that did get her with Child, and that (he had the
Child by the faid Grocer, whereby (he loft her Marriage. To
which the Defendant pleaded Not Guilty^ and was found gwilty at
the Ailizes at Aylishury to the damages of Two hundred Marks ,
and now it was alledgcd in Arreft of Judgment, that this matter
appeareth to be meerly Spiritual, and therefore not deternninable at
Common Law, but to be profecuted in the Spiritual Court. But
fer Curiam^ the Action lies here, for a Woman not married cannot
by intendment have fo great advancement as by her Marriage,
whereby (he is fure of maintenance for her life, or during her Mar-
riage, and Dower and other Benefits which the Temporal Laws
give by reafon of her Marriage '■> and therefore by this Slander (he
is greatly prejudiced in that which is to be her Temporal advance-
ment, for which it is reafon to give her remedy by way of Action
at Common Law : as if a Woman keep a Vidualing-Houfe, to
which divers of great credit repair, whereby (he hath her lively-
hood, and one fliall fay to her Guefts, that as they refped: their
Credits, they take care how they ufe fuch a Houfe, for there the
Woman is known to be a Bawd, whereby the Guefts avoid the
Houfe, to the lofs of her Husband : (hall not (he in this Cafe have
an Adion at Common Law for fuch a Slander ? It is clear that (he
Hhhhz (hall
5 1 8 Of Defamatio7h
fliall. So if one faith, that a Woman is a Common Strumpet , and
that it is a Slander to them to come to her Houfe, whereby (he lo-
{etli the advantage that (he was wont to have by her Guefts, fhe
fhall have her Adlion for this at Common Law. So here upon thefe i
collateral. Circumllances, whereby it may appear that (he hath more*
perjudice than can be by calling of one Harlot) and the like. And
(b^Ddvii verf. judgment was given for the Plaintiff (h),
Gardm.^ofh. (7.) Touching Defamation, for which Suit is in the Ecclefiafti-
^f P- cal Court. Pvefolved, the raatter muft be meer Spiritual and de-
C Lib /« ^< f^^f^'"^^^£ only there s for if it concern any matter which is deter-
ijsEliz'.*' ' minable at the Common Law, the EccleliaiHcal Judge hath not the
(0 2 5EIiz. Cognizance. thereof f; 3.
Palmsr 3od f 8. J Adion was for thefe words, Fierce hath taken afalfe Oath
Co 4 par'fo.' ^^ ^^^ ^"^^^ ofConftfiory of Exeter. It was objeded, that for mat-
ters in the Spiritual Court, an Action will not lie : And the Stat,
of $ EUzj. diVerjury^ doth not extend to tkofe Courts : But it was
rcfolved," that the Adion qid lie for thefe words, and that the,
Statute doth extend to fuch, and the like Courts j as the Court of
Star-Chamber,, &c. And the words, that he hath taken afalfe Oath^
ihall be intended actively, and fhall amount to thefe words, He ts
forfvorn. In this Cafe it was faid by VrideaitXjXhdX thefe words, are
adionable, although the Perjury be fuppofed to be committed in
the Spiritual Court ", for he ' (hall be Excommunicated if he will
not appear, • and he (hall do Penance in a white Slieet, which is as
grjeat a difgrace as to be &t upon the Pillory. And it was ruled in
an Adfion upon the Cafe betwixt Dorr'm^ton and Dorrington^ upon
thefe woxds^ Thou art, a Bafiard^ that an Adlion lieth, and yet Ba-
Bardk a Spiritual matter, and there determinable-, fo for thefe
words, Thou art a Pnvrfe, ah Adlion lieth, and yet Piracy is not
pifniihable by the Common Law, but in the Court of Admiralty.
And thefe words, He hath taken afalfe Oathy do amount to thefe
words, He js forf-worn. Wray cowztwtd^ that the words are not
adfionable, for there is a Provifb in the Statute of Elizi, cap. p.
that the faid Ad (hall not extend to any Eccleiiadical Court, but
that every fuch O0ender (hall be and may be puniflied by fuch ufual
and ordinary Law's as heretofore have been, and are yet ufed, and
frequent in the faid Eccleiiaihcal Court. Gawdy^ upon thefe words,
an Ad ion doth not lie, for they are not pregnant of any Perju-
ry in the Plaintiff, for he may be meer pallive in it ; for if one of
the Mailers of the Chancery Minilkr an Oath to any perfon, or any
Commil!)()ners,, d^c. and the Plaintitf fweareth fallly, a Man may
fay that dieMaikrofthcC/?4«ccr/, or the Commiirioners have taken
a falfe Oath ; and yet Ije is not guilty of fallity. And afterwards
AMata Opmone. JVrayj that the Provifo in the faid Statute is to
this.
Of Defamation. 51^
this intent, fuch an offence may be enqiiirable and exaniined in the
Ecclefiaftical Court in fuch manner as was before, but the fame
doth not take away or retrain the Authority of the Common Law,
but that fuch an Offence may be here examined, &c. And as to
the later exception upon thefe words (he hath taken a falfe Oath)
it fhall be intended Actively, and not PalTively \ and if fo, the
Defendant ought to have fo pleaded it : And afterwards Judgment
was given for the Plaintiff {k). C^) Hill. 52.
(9.) P^/Zr/riand his Wife brought an A<flion againfl: Armjhaw^ Eliz.Roc. 434.
for thefe words, ^iz,. Thou art a fVhore^ for J. S. Goldfmith hath ^'^; ^'^^'"
the ufe of thy Body^ and the Cart is too good for thee* Per Curiam^ Leon. Rep.
the V'^ioii ^vill no: lie i for theGDmmon Law cannot define, who
is a tVhore « but where if one keep a Viilualing houle, it be faid
Ihe keeps a Houfe of Bav^dry^ an Adion will lie (I). CO 4° £'• ^•^^'
fio.) AB'ion upn the Cafe for words of Df amnion. Where- ^f^^^'^li^^l^^
as the Plaintiff was a Perfbn of good Fame, and always free from jrmljfrv.
Adultery and Fornication, 8cc. And after the death of Brian her late Gold. 172.
Husband, was in Communication with one Cowley for a Marriage
betwixt them '-, That the Defendant to deprive her of her Fame,
and to hinder her from the faid Marriage, fpake of the Plaintiff thefe
words, 'viz,. Jlie is a Whore^ and her Children {innuendo her Chil-
dren which (he had by the faid Brian late her Husband) are Fram-
bifhes Bafiards {innuendo ont Nicholas Frambij}h)MteT Verdid up-
on N^f Gwi///, and found for the Plaintiff, it was moved in Arrefl of
Judgment by Grimfion^ that thefe words are not adlionable : For, for
calling Whore^ there lies not any Adion j and to fay that her Chil-
dren by her former Husband^are Frambilhes Bafiards^ is repugnant
in it felf ; for they cannot be Baftards, which were born in the time
of her form.er Husband : But all the Court held that the Adiion
well lie?. For to fay of a Widow who is in Communication of
Marriage witli another, that fhe plaid the Whore in her former
Husbands time, is a great difcredit : And to fay that her Chil-
dren are Balfards ('although in truth they cannot be Baftards in
Law, yet in Pveputation they may be fo) is caufe of lofs of her
Marriage, and that none will Marry with her i wherefore it was , s j^. . :
adjudged for the Plaintiff (m). Car.B.R. 'voro^
ClJ.) Aci ion upon the Cafe. Whereas he keepeth an Ale-houfe ji,^ Bnjwverf,
Licenfed by Juftices of the Peace, that the Defendant to fcanda- coc^wd« Cro,
lize the Plaintiffs Wife, fpake thefe words of her. Hang the Bawd^ ^^P*
Xhoi^ art worfe than a Bawd : Thou keepefi a Houfe worfe than a
Bawdy Houfe^ Andthfu keepefi a Whore in thy Houfe to full out my
Throat. Upon not guilty pleaded, found for the Plaintiff. Stone
iriQved i;i Arrcii of Judgment, that thefe words are not adionable >
but agreed, that for faying, 0ns is a Bawd-, md heps a Bawdy
Houfe^
520 Of Defamation,
Houfe, Adion lies, becaufe it is a temporal Oifeiicc, for which the
Common Law inflids puniflimenr. But to call one Bav^d with-
out further fpeaking, an Adion lies not, no more than to call one
Whore, But it is a Defamation punifhable in the Spiritual Court.
And to fay. That he keep a Houfe "ivorfe than a Bawdy Houfe hath
not any intendment what he means thereby •, wherefore the Adion
lies not : And if it be intended, that fuch w^ords (hould hinder
Gueils from coming thither, being an Alehoufe, the Husband on-
ly ought to have brought the Adlion. And as to that, the Court
(ahfente Richardfon) agreed. But for the other words, they held
the Adion lies by the Husband and Wife, for the flander to his
Wife •, and it is as much as if he had faid, that (lie keepeth a
■(«;Trin.9.Car. Bawdy houfe ", wherefore it was adjudged for the Plaintiff (n).
Tirfonand his C12J A Prohibition was prayed, becaufe-^. and his Wife fued
Wife againfl j,^ ^[^g Ecclefiaftical Court for Defamation, and fpeaking thefe words
GoUay, ao. of the Plaintiff, He was a Cuckold and a Wtttal, which is 'worfe
than a Cuckold, and that Aylfworth had layen with Ayloffs Wife h
And for thefe Defamatory words he fued there i and becaufe it was
allcdged, that for thefe words, being but words of Spleen, Prohi-
hitions had been ufually granted, day was thereupon given until
this Term, to (hew caufe why a Prohibition (hould not be granted,
and divers prefidcnts were (hewed, that for calling one Cuckold or
Whorcy Prohibitions have been granted : But now upon advertife-
ment all the Court agreed, that woProhibition (hould be granted,
but that the Ecclefiaftical Court (hould have Jurifdidion thereof :
For although they agreed, that there ought not to have been any
Suit for the rirft words, they being too general ;, yet being coupled
with a particular, (hewing that the Wife committed fuch an Of-
fence with fuch a particular perfon, they be not now general words
of fpleen in common and ufual difcourfe and parlance i But they held
it was a Defamation (uable in the Spiritual Court \ whereupon the
(o)Pafch. 4. Prohibition was denied (0) • — Brownlow chief Prothomtary
^er'f^'^iff^ind P^^^^^^^^ 0" ^^^^ occafion feveral prefidents, where Prohibitions had
faisWifcfcro, heen granted to (lay Suits for fuch words, 'viz,. Trin, I'^.Jac.rot.
ilcp« 2260, Purchas verf. Birr el for that he was prefented at feveral
Inquefts within his Parilh for being a Drunkard^ and a Bar ret or.
And Pafch. 6. Jac. Rot. 35?7. Prohibition to ftay a Suit for calling
a Parfon Hedge-Priefi. And Mich. 21. yac. Barker verf. Pafmore '.
She is a Quean, and a tainted Quean. Prohibition granted.
C13.) H. prays a Prohibition to ilay a Suit in the Spiritual Court
for Defamation for fpeaking thefe vfOiAs^hou art a Bawd,and I will
■prove thee a Bawd. And becaufe thefe are words properly determi-
nable in the Spiritual Court, and for which no Adion lies at the
Common Law, a Prohibiton was denied. But for faying, Thm
keepfi
Of Defamation, 521
keepetb a Hvufe of Bawdrj^x^is being matter determinable at Com-
mon Law by Indidment, Suit (hall not be in the Spiritual Court
(p), 'vid. 27 i^.8. and Co. lib, ^.fol. 20. (p) wfch. 7.
C14O Prohibition was prayed to the Ecdefiaftical Court to flay a Car. B.R.
Suit there for Defamation, for thefc words, then art a Drunkard ^"{.'^^/^"^^
or a Drunken felloTV And by tiie opinion oiCroke^Jones and Berkley ^^'^'^""^^'^^P-
a Prohibition was. granted : For thefe words do not concern any
Spiritual matter, but mecrly Temporal, and they be but Convitium
Temporale-, and a common Phrafe of brawling, for which there
ought not to be a Suit in the Spiritual Court i and fo it was held in
Martin Calthorfs Cafe, in C.B. but Richardfon doubted thereof,
becaufe the Spiritual Court as well as the Temporal may meddle
with the piinidiment of Drunkennefs i fo it is not meerly Temporal •>
But he affented to the grant of a Prohibition, and the party m.ay
(if he will) demur thereto i whereupon a Prohibition was grant-
^^-^* C'J^Mich.g.
(i 5.) Prohibition was prayed by BuUfirodhx Gobbet^io fiay a Suit Car. B.R.
in the Spiritual Coutt (or Defamation, in fpeaking thefe words. He cuch vctC.
ts a Cuckoldly Knave^ and cited prelidents, that for faying. He is a ^^^^^' ^^^»
Knave and a cheating Knave^ Suit being ui the Spiritual Court, a
Prohibition was granted upon good advilement i and the Court
faid, that prefident is not like to this Cafe, for there was not any
offence wherewith the Spiritual Court ought to meddle, but in this
Cafe for thefe words, it is properly to be examined and punifhed
tlierepro reformat ione morum \ for it is a difgrace to the Husband as
well as to the Wife, becaufe he fulfers and connives at it, -whereupon
(abfente Richardfon) the Prohibition was denied. Again, it was
moved, that this fliould be granted upon the Statute of 32 H. 8.
becaufe he was fued in the Court of the Arches., which is in the
Archbifhops Jurifdidlon, and tlie words were fpoken at Thtfilevjorth
in London Diocefs, as appeared by the Libel. But Jones faid that
he was informed by Dr. Duck Chancellor of London, tliat tliere
hath httn for long time a compolltion betwixt the Bifhop of Lon-
don and the Archbilhop oi Canterbury.^ that if any Suit be begun be-
fore the Archbifhop, it fhall be always permitted by theBilhopof
London '•> fo as it is ijuafi a general Licenfe, and fo not fued there
but with the Bifhops affent 5 and for that reafbn the Archbifhop
never makes any Vilitation in London Dioceis. And hereupon alio
the Prohibition was denied (r). , x „f.. _
(i^-) ABion.JLOx that the Defendant had faid of and to the Plain- g r, Gobkts
tiff, being of good fame, and one who had ferved as Captain in Csfe.Cro.Rep;
the Wars hac verba in London, Thou art a Vimp^ averring that in P*^ • 3*
London that word was known to be intended a BaTvd^ and further
faid, Th;it he was a common Vimp, and mioriom-i which he would
jnfltfie
52 2 Of Defajuation,
jnfiifie. After Verdid for the Plaintiff, tittleton fthe Kings Solici-
tor; moved in Arreftof Judgment, that thefe words are not Adtio-
liable 5 for it is a meer Spiritual Slander-, as JVhore or Heretick^ and
punifhable in the Spiritual Court, and not at the Common Law i
and he faid, that divers times Suits have been in the Spiritual Court
for fuch words,and Prohibitions prayed and never granted, 'vid. 27.
f/.8.i4. But to fay that he keeps a Bawdy houje^ is prefentable in
the Lcet^ and punifhable at the Common Law. Ward., e Contra,
becaufe it is fpoken of one of an honourable Profeilion, 'viz, a
Souldier, and trenches on his reputation to be taxe4 with fuch a
bafe Offence ■■, and he faid, that fuch Offences have been divers
times punifhed in London by corporal punifhment- but it was an-
fwered, that was by Cuftom ■■> and there the calling one Whore is
adbionable. Jones Juftice held that the Adtion lay not \ and all
•the Jullices agreed •, that the expofition and averment ( that
Timp is known to be a Name for a Common Bawd) is good.
Croke and Berkley agreed, that the words are very llandrous, and
more than if he had call'd him Adulterer or Whoremonger^ &c
and may be indidted and punifhed for it corporally , as
tending to the breach of the Peace \ and rule was given that
Judgment fhould be entred, &c. But was afterwards ffaid
a)'Mkh. 10. is).
Car. rot. 143. ^ j y j g^iit being in the Ecdefiaftical Court for calling a Mans Wife
TawcettC^o ' ^^^^^^ Jade and Welch Rogue-i Sentence being there in the Arches,
acp. * the Defendant appealed to the Court of Audience ■•> and in the
Appeal mentioned the former words, and in the Libel was inter-
lined ^and a Welch Thief ^ and hereupon a Prohibition was pray-
ed and granted, unleis caufe were (hewn by fuch a day to the con-
trary : For it was held clearly, that for the word {JVelch Thief}
Adion lies at the Common Law, and they ought not to fue in the
Spiritual Court : And for the other words, it was conceived up-
on the hrlt motion, they ought not to fue in the Spiritual Court,
for they be words only of Heat, and no Slander. But it was after-
wards moved and (liewn, that the faid words {^A Welch Thief}
were not in the Hrft Libel, nor in the Appeal in the time of the Ap-
peal i but were interlined by a falfe hand without the privity of
■the Plaintiff" in the Eccleiiaftical Court, and that upon Examina-
tion in that Court, it was found to be fallly inferted, and order-
ed to be expunged. And that the words Welch Jade were fliewn
in the Libel to be expounded and To known to be a V/ekh Whore i
which being a Spiritual Caufe and examinable there, it was there-
fore prayed that no Prohibition ftiould be granted \ and if it were
granted, that a Confuhation (hould be awarded. And of this O-
piiiioa was ail th Court, that the words C and a Welch Thief ]
being
Of Defamation, 523
being unduly interlined, and by Authority of the Ecclefiaftical
if Court £xpunged,and in that Court Jade is known and fo expound-
led for a Whore, our Law gives Credence to them therein, and
.Wpecially being after two Sentences in the Spiritual Court. This
Court will not meddle therewith. Wherefore Confiiltation was
granted, if any Prohibition was iiTued forth quia ir^provide v and
Rule given, that if a Prohibition was not paiTed^ that none fhould be
granted (t), (t) Pafch. 12
(18.) It was moved for a Prohibition by Harris Serjeant to the ^",'9' ^' ?/'*'
Court of Audience, becaufe that the Plaintiff was fued there for fay- J"rf. Jt^ims.
ing toone,T'/6o« art a common Whore and a. bafe Quean : and Har- Cro. Rep.
ris faid, that a Prohibition had been granted in this Court, for
faying to one that (he was a ptmperly Quean : And it was the Cafe
of Man againft Huckjler : And Finch faid, though the words are
not Adlionablc in our Law, yet they are puniOiable in the Spiritual
Court, for the word Quean in their Law implies as much as Whore :
But Hobert faid, that this word Quean is not a word of any certain
Senfe, and is to all intents and purpofes an Indi'viduum Vagum,di\\6.
fo incertain («). f'O Trln. ip
Cip.) In an Adion upon the Cafe •, that whereas he is Parfon of J^^' ^'^'
D. and a Preacher,the Defendant Slandered him in hac verba-Paxett '" ' "'
is a lewd Adulterer^ and hath had tivo Children by the Wife of]. S.
/ Tvdl caufe him to be deprived for it. By the Court the A d:ion
doth not lie ; For the Slander is to be punifhed in the Eccleliaftical
Court; And fo awarded Quod Quer. nil cap. per bill. (x). /^^ Qfe.
(20.) D. had fued 7", in the Ecclefkftical Court for this, 'jy/2:* p^r«« verf.
That whereas (he was of good Fame, and kept a Vidualling-Houfe carpintir.
in good Order \ that the faid 7. had publifhedthat D. kept an houfe ^"^^^'^P*
of Bawdry. T. now brought a Prohibition, and by the Court well/, j ,0 - .;/>.:•: •
for D. might have an Adion for that at the Common Law •> efpe- -'>»^- •''12 .12
cially where (he kept a VidualHng-Houfe as her Trade. Notel ""',:, !\;,''
27H.S. 14. And by the Juftices, that the keepirig of a Brof W-
houfe is inquirable at the Leet \ and fo a Temporal Offence. And
fo was the Opinion of the Court, Tr. 7 Car. B>. R. Mxs. Holland's • ' '
CafeO). ^ i^lJttJuci
(20.) W. fued L. in theEcckfiaftical Court for a Defamatiojt,d.nd '^^y^^m ^ •
had Sentences L. Appeals, and depending the Appeal comes a isfoyiRep.
Pardon, which relates to the Offence, and pardons it j then L. de-
fers his Appeal, and for that W. had cofts taxed him : And now L.
prayed a Prohibition, becaufe he defer'd his Appeal becaufe of the
Pardon,which had taken away the Offence. And by the Court in that
Care,after the pardon the inferior Court cannot tax cofts i but it was
iirged thttt the fuperior Courts might' tax cofts upon the defer tioii
of the Appeal, which is an Oiience after the Pardon. But k was an-
I i i i fweied
524 ^f Defamation.
fwered 011 the other fide, that it was in vain to profecute the Ap-
peal, when the Offence it felf is pardoned. The words were, Tktt^,
art a Pansier to Sir Hen. Vau^han : And there was much debate ifj
they were Adionable at Common Law i yet it was agreed, that U
Suit may be brought for them in the Spiritual Court, as for calling^
one IVbcrCj Bawd^ or Drunkard. But otherwife by Jenes^ if he had.
faid, That he was Drunk j for then a Prohibition lies. And it was
ruled in (5 Jac. B. R. in the Cafe of Cradock zgzmCi Thomas \ a,
Prohibition was granted in a Suit for calling one Whorefon, And in
(^■A Cafe Limn ^^^^-f C^^^o ^ Prohibition in a Suit for calling one Kna've (z,),
againft j^'hit- (2.I) £• and M. being reputed Church- wardens (but they never,
ton* Nofi Rep. took any Oath, as the Office requires; prefent a Feme Covert upon
a common report for Adultery, &c. And the Husband and Wife
Libel againlt them in the Eccleiiaftical Court for that Defamation,
And when Sentence was ready to be given for th.em, the Church-*
wardens Appeal to the Arches^ where the Prefentmtnt was proved
but by one Witnefs i they Sentenced the Baron and Feme. But now
Ward Serjeant moved for a Prohibition., but it was denied by the.
Court -, for (hey were Plaintiffs firff. And aUb it is a Caufe, which
{a) Eton and fhis Court had not any Cognizance of {a),.
S/Re^p ('30 Note, upon evidence to the Jury, Refolved by the Court
{b)S\x chrido- that an Action upon the Cafe for words, lies againft an Infant of
pher ,Hod\man Seventeen years of Age. For malitta fupflet ^tatem {b). And it is
Griff/' N^ 's ^^'^^ ^^ ^^^ Common Law, that if a Man Libel in the Eccleiiaaical
Rep! ' ''^^, ^^^}^^ againft onefbi; fayi^ig certain words of him, which he will
(c) Hill. 4 Jac. maintain m an Adion nppn the Cafe at Common Law, a Prphibi-
B. R. iiutr tion lies (c).
nr«tf/« and (24,) If a Man Libels in the Ecdefodical Court againft ow for
fe Mich.T8,"9 ^^^"^S ^^^^^ '^^ ^^ ^ mtch.Qx the Son of a Witch \ although no Adion
Eliz. B.R. m- ^i^s for that at the Common Law, yet no Prohibition ihall be grant-
/fj and Banlm ed, for peradyenture he may have fome Spiritual prejudice thereby,
fd-Ti^^^' ^^ 'le (hould be theSpn 0(2^ Witch, as that he cannot be a Prieff or
Jac b!^" Ad. ^^^^ ^'^^ • ^ ^^\ ^^ ^'^^^^ ^^^ ^^^ f<^^^^ of the words confiils in the laft
judg. vid. Rol. words, they being fpoken in the disjundive) (d),
Abr.pag 2^5.^ If a Parfon of a Cliurch call J. B. Drunkard, upon which J. B*
r*^' M- h >■ ^ F^^'^^'2 f^-'°'* h%^ ' i^ the Parfon fue A. B. in the Eccleiiaftical Court
jac.B.ln'teJ ^or&ving him the Ije, a Prohibition lies, for that the Caufe for
'simpfon snd which he g^ve him the 7;;^, is not Spiritual, but, depending on a
n-atirs,per cur. Temporal thing precedent (e). But if a Man call a Minifler Knave.,
( f • Hill la ^^^ "^^^ ^^ ^^^^^ ^'^^ ^^^^^ "^ ^^^ E<:ckiiartical Court, and no Prohibit
B 'pir cld!^' "^" ^^^^ C/')- ^^^"^ "^"^ ^^ys of another, that he will not hear Ser-
(g) Kill. 7 Jac. ,'^o"s made by thofe who have been made Minifters by Bifliops i he "
ptr Curiam Ad- m\y be fued for that in the Ec<;kfia(lical Court, and no Prohibition
^«^& iliall be granted (g). : ' f/ ' • ' ^
If
Of Defamation. r^r
If a Man fays of another, that he keeps a Bawdy-Houfe^ and is
lued for it in the Eccieiiaftical Court, although be might have aa
^dion at Common Law, yet the EcdeiiaiticalLaw hath a concur-
rent Jurifdidtion in this, and the words are mixt, for which rcafoii
110 Prohibition lies {h). And if one fays of another, that he is a (^; 27H 8 r '
Pander^ he may be fued in the Eccleliaftical Court, for that the b. per Fit^htr-
fignihcation of that word is well known, and founds to a Spiritual ^^!^'
Defamation (i). Or if a Man fays to another. Thou art a Cuckoldly i^^ ^l"^' ^*
Knave^ and for that he and his Wife fue him in the Eccleiiaftical 2,1"',^ gJJJ
Court for a Defamation, no Prohibition lies, for that thefe words pyhitUy, per
amount to a Spiritual Defamation^ 'viz,. that his Wife was inconti- J>i>deYidge and
nent » in this Cafe a Prohibition was denied (k). •^5,""/ ^?"^"
Husband and Wife were Divorced for Adultety^amenfa & thoro^ O^/HlTl.pCar.
^ TttHtua cohabit atione (and as one of the Council faid, De omnibm B.R. inter ip^es
Matnmonialibits obfequijs^ but the Council of the other party de- *"<*. Cobbitftr
iiied that ) and after the Wife fued in the Ecclefiaftical Court a ^'"■"'*''
Stranger for Defamation, and Sentence there given for her, and Pe-
nance enjoyn'd to the party Defendant, and cofls of Suit aiTefTed for
the Plaintiffs and afterwards the Defendant appeals, and after the
Husband of the Wife releafes all Adions, and that Suit and all ap-
pertaining thereunto, and the Defendant pleaded that Releafe, and
they remitted back the Suit to the inferior Court again '■> and now
Coventry Recorder of London prayed a Prohibition, for that not-
withftanding. the Divorce they continued Husband and Wife, and
therefore the Releafe of the Husband fliould Barr the Wife from
having Execution of the Sentence, and of the Cofts 44. El. In this
Court between Steevens Adminiftrator of one Steevens^ and Totte^
the Cafe was, That after Divorce for Adultery of the Husband
a Menfa & Thoro^ the Woman fued in the Ecclefiaftical Court for .
a Legacy, devifed to her by the Tellator, and the Defendant pleaded
a Releafe thereof from the Husband, and thereupon a Prohibition
was granted, and he (hew'd that Preiidcnt in Court, but the Pre-
lldent did not comprehend the Divorce *> But Doderidge faid. He
well remembred when that Cafe was Argued,and the parlance then
was about the Divoree. Wenfivorthy it feems that no Prohibition
ihall be granted, Hill. 7 Jac. in this Court. A Suit was commenced
in the Eccleiiaftical Court by two Church-wardens, and the De-
fendant there pleaded die Releafe of one of them, and thereupon a
Prohibition was here granted, and after a Confultation was granted,
for that they fliall try that, having Cognizance of the Principal^
and in this Cafe the Releafe is after the Appeal, and therefore it
^ may not be pleaded upon the Appeal, for the Judges in the Appeal
have no Power but to examine the former Sentence, and not
any collateral matter. Coventry^ I agree the Cafe of the Church-
1 i i i a wardens.
^2 6 Of i)efa77iatio7i.
'' wardens, for that the Releafe of one is not any Barr in Law ; for
3 8 Eliz,' it was Ii^re refolved between Methon and Winns^ that a ' „
gift of the Church-wardens without the Affent of the Sidemen or J
Vertry is void •, but it is otherwife here, for here the PLeleafc of the!
. Husband is fufficient to difcharge the Execution of that Sentence, the.
which is all that we demand, lo £. 3. fuch Divorce is not any Barr.
of Dower. The Court fecmed to incline that no Frohiibition fliould'
be granted, for that the Wife in fuch Cafe may be fued alone with-
out the Husband by the Ecclefiaftical Law, and this is matter meerly
Spiritual, ^<tz,. Defamation^ and therefore we have nothing to da.
therewith, and . the Releafe of the Husband fhall not difcharge thcB
Suit of the Wife, which is only to reftOre her to her Credit and
Reputatfen which was impeached by the other, and the Cofts of
Suit is not for any Damage, but meerly for the Charge of the Suit,,
and therefore the Suit being not difcharged, the Cofts fliall remain
alfo 5 and this Cafe is not like the fore-cited Cafe oi Stephens, for the'
thing for which that Suit was, was originally a Legacy due to HuC-
band and Wife^ and therefore there the Releafe of the Husband was
a good difcharge, but here was no duty in the Husband originally,
(fc) Mich. 14 Ergo^ Sec. Curia advifare vult (h).
Jac. B. R. Mo' in Palmer and "Thorp Cafe it was refolved, that Defa?nation m
tamycx(.Mo- the Eccleiiaftical Court ought to have three Incidents, (i.) That
tarn. Rol. Rep. ^j^^ m^ittx be meerly Spiritual and determinable in the Ecclefiaflical
Pd/wir*and Court, as fbr calling one Heretick, Schifmatick ^ Advoivteref'^
Thorns Cafe. Fornicator, (^:2,.J It ought to concern matter meerly Spiritual only?
25 El. f. 20. for if it concern any thing determinable at Common Law, the Ec-
clefiaftical Judge fhall not have Cognizance of it. See for this 22 2*
4>, 2,.p* the Abbot of St. Albans Cafe. (3 ^' Though the thing be
. meerly Spiritual, yet he which is defamed^ cannot fue there for
amends; or damages, but the Suit there ought to be for punilhment
of the offender, Pro falute anima j For this fee ArticultS' cleri, ^
Circumfpech agatis^ and F//z,.5 1,52,53. but yet the Plaintiff (hall
recover Colls ther^, and there if the Defendant to redeem his Pe-
nance agree to pay a certain fum, the Party may fue for this there,
and no Prohibition lies in that Cafe.
In a Cafe of Prohibition between M. and M, in the Eccleiiaftical
Court •, the Cafe was, a Suit was there for Defamation, by the Wife
ot the party, a Sentence there given, and Cofts fro expenjis litis y the
Husband did releafe thefe Cofts, which they would not there allow
of 5 upon a Suggeftion here that the Husband was Divorced caufa
Adulter ij, a Prohibition, was prayed i and for which it was urged,
that the Releafe by the Husband was good, the Suit being there for
Defamation, Sentence there given, the Wife Divorced a Menfa dr
Thoro^ which doth not dilfolve Vinculmn Matritmnij^ but that this
not with-
Of Defa?7iation, ^^n
notwithftanding they may come together again when they will \
and fuch a Divorce is no Barr of Dower. Doderidge^^if^ are only
to rcftore the Party to her good Name, in Cafe of Defamation : The
Point here only isjthe Husband and Wife are Divorced^Caufa Adul-
terij\ The Wife fues in the Eccleliaftical Court for Defamation, and
there recovers, and Cofts are given, the which the Husband did
releafe i Whether this Releafe thus made by the Husband, fhall Barr
the Wife of her Cofts. And if they will not allow of this Re-
leafe there, whether a Prohibition fhall be granted or not. The
whole Court clear of Opinion, That no Prohibition in this Cafe is
to be granted. And fp by the whole Court, the Prohibition was
denied.
CHAP.
528
x:hap, XXXV in.
Of Sacriledge.
1. whence the "word Sacriledge is derived, what it imforts, and the
federal kinds thereof,
2. It is taken froferly and fir icily ^ or iwfroferly & in fenfu largo;
and is of a mixt Cogniz,ance.
3. The federal ways whereby Sacriledge mny he committed.
4. Who are intended by ferfons Sacred, againft whom Sacriledge
may be committed i the divijion thereof,
5. Bartofs Definition of SicxWt^^ts feveral fevere Tunijhments
thereof Recorded by Hiftorians«
6. The federal Punijliments infiicled on Sacrilegious Ferfons accord'
ing to the Civil and Canon Law •> The Civil Law more (evere
therein than the Canon ; how ^uni^i'd anciently in thts Realm
according to the Ecclefiafiical Confiitutions thereof.
7. T'he dreadful Curfe anciently andfolemnly pronounced in Parlia'
ment agatnfi Saailegious Ferfons.
8. A remarkable Judgment that happened to a Bifjop of Bangor/cy*
Sacriledge.
(i.) ^JCRI LEDGE, from Sacra & Lego, or a Sacris
^^ Legendis-i that is, fufiurandis, for that word Lego fome-
times fignihes /«rrf;r/ or rapere : Ifidor.lih, i. Orig.lit.f
Sacrilegm qui facra legit, h. e. furatur. In the Greek li^avM^ im-
porting as much as to lay av\iiv t* Uo^,, that is, pradan W violare
Sacra, for Sacriledge is the violation or ufurpation of fomc thing
that is SacredjG/o/. in cap. omnes Ecclefia .ij.q. 4. and may be com-
mitted three feveral ways; As (i.) either in refpedtof the Perfon, as
when a Man doth wound or ftrike an Ecclelialhcal Perfon in Holy
Orders : Or (2.) in refped of the Place, as when one violates the
Priviledges or Immunities of the Church or Church-yard : Or C^.)
in refpedt of the Thing, as when a thing Sacred or Confeaated or
deputed or dedicated to fome Sacred ufe is ufurped upon and taken
away, and this holds true, whether aufer at ur Sacrum de Loco facro,
■vel non facro, vel ncn facrum de facro, Linw. de Offic. Archipref
<:. I . glof, in "Verb, Sacrilegium.
(2,) Sacriledge is taken either firiBly and properly, as when a
thing iacred is ftoln out of a facred place i fo it is held according
to the Law generally, but either will amount to Sacriledge accord-
ing to -the Canons : or in a large renfe.,and improperly, ana fo it ex-
tends
Of Sacrilecfge, 520
tends to other Crimes,^ /. / quis e. de Epf, & de. &c. de facrik^,
per totum. As infringing the Church's Liberties, invading Eccleli-
aftical goods and the like, whereof more, hereafter. Lind72^, de im-
mm.Eccl.c, 2. glof.in ver.Sacrilegi. The Emperors held their
Conftitutions fo facred, that they called the violation thereof Sa-
cr Hedge, I. un. c. de Crimi. Sacril. This Crime is of a mixt Cogni-
zance, partly Ecchfiafilcal^ partly Secular, whereof each Jurifdidtioii
mayy«re frv^no take Cognizance,c. cum fit generate. Deforo compet. ■
So that this Crime of Sacriledge is not meerly Eeclefiaftical, becaufe
the Cognizance thereof in fome Cafes may appertain to the Secw-
lar Judge, at Xtz^^qmad pmnam^ I. fi quis in hoc c. de Epif. ^ Ckr.
And Hoflienfis himfelf doth confefs as much quoad pcenam Corpora-
letn ■■> other wife it js as to the cenfures of the Chmch comra takm
fidmiftandai*
(:^.) There are many ways whereby Sacriledge may be commit^
ted, as by invading the rights and goods of the Church, by unjuft
and illegal vexing and molefting the Church, by wafting and de-
ftroying the Church, by violating Ecclefiafikks^ by a Clerks con-
fulting with Soothfayers^ and Diviners^ by violating Church-Pri-
viledges and Immunities, by (triking a Clerk. Lindw. de immun,
Eecl. c, fectdi glo. in 'verb. aufuSacrilego. Church-burners^Chureh-
breakers, Church-robbers, by Healing the Church-Bible, the Cha-
lice, or other thing out of the Church, by violating the Church-
Porch or breaking the Doors thereof, by firiking in the Church, or
apprehending and taking any one there, by ob(kud:ing the Juri{^
didion of the Church, or hindering any of that free accels which he
ought to have to the Church, by ufurping the Guardian(hip or
cuftody of a Church that is void, and under that pretence polTels
themfelvcs of the Goods and Revenues thereof, by ufurping and
occupying the Oblations and Olferings of the Church •, but to ex-
plicate the Crime of Sacriledge to its full latitude, it is requifite in
ojder thereto, to diltinguifh aright of things Sacred which are vio-
lated thereby '■> for as Habits are diftinguifh'd ex ohjeBis, fo Vtces
by the matters about which they are converfant i now the matter
of Sacriledge is ever fomething Sacred^ and therefore Sacriledges
are diftinguifh'd according to the diveriity of Sacred things \ whence
Aquin^is infer^that as there are Three kinds of things Sacred, viz,.
Perfons^Pb,ces,-dnd iome other Things : So there is a Threefold kind
of Sacriledge, •x;;^:, againft Ferfons^ againft Places, and againft other
Jhings confccrated and dedicated to Divine Worftiip. Which di-
ftindtion the Ca?io?nfis do generally hold in each Member thereof;
As Sacriledge, (i.) A^3.init Ectlefiajlical Per fens ^ cap. ficut, ^^c,
. qmfquAS.iy.q. 4.. d^ in cfi quis deinceps ufqh ad cap.fi qtusfiiadentCo .
iad. Can, Q- q.(2.) Sacriledge againft facred places, cap. Miror &£.
Frater
530 , Of Sacr Hedge,
Frater, C3O Agaiiifi the Goods and Revenues of the Church, Cap.
Sacrilegtum^ cap. Omnss Ecclejia^(^ ca^. Attendefjdum.li being ex-
prelly faid,that Qui pecunias njtlresEccleJia ahfiida-it^Sacrilegittnt
facit in cap. qui rafit. There is no Sacriledge but may be reduced to
one of ihefe three heads, although under them there may be divcis
other kinds of Sacriledges more particularly fubdiftinguifh'd.
(■4.) By Ferfons Sacred is here underilood fuch, as in a peculiar
manner are fet apart and dedicated to Divine publick Worlhip ac-
cording to Sacred Ordination 5 and the principal kind of Sacriledge
commiflable againlt fuch, is the laying of "oiolevt hands on them,
which is a violation of their Immunities or Priviledges, cap.fi quts
fuadente. 17. q. 4. And as to Sacriledge committed againlt Flaces
iaaed,the Canon is^hzi Sacrilegium Cowwittitw auferendo Sacrum
de facro^ -vel non facrtim de facroMitt facrnm de iiC7i facro-^cap. quif*
c[uts 17. q. 4. Of which Three Members the T'/j/r^doth not belong
to this circumftance of Vlace. And as to the feccnd Member thereof
the Civil Law determines otherwife than the Canon, for in that
Cafe the Civil Law fays, That Res Vri'vatoumi^fi in adem facram
depojha^fttrreptafuerint-furtt aBicnennion facrilegij ejfe^ l.Di'v.jf.
ad leg, Jul, pec. yet among the Canonilts it is communis opinio, that
ftirtnm in Icco facrtlegium efi. And where the Canon Law fpeaks of
•ChurcheSjit fays, ft qui dtpojita^ vel alia quahbet extnde ahfirahunt^
^•elut Sacrilegi Canonic^ Senttntia fuhjaceant. But every Offence
done in the Church, is not Sacriledge , yet it is held,that it is in the
Power of the Ecclellaftical Jurifdid:ion, fo to prohibit the doing of
Ibme certain things and a(ftions in the Church, that fuch as offend
againif the Prohibitionjfhall be reputed SacrilegiouSjthough the things
in themfelves are not Sacriledge. The Canonifis alfo do hold,that the
perverting of the Holy Scripture, to uphold.maintain, or confirm Er-
lOis^is gravijfimum Sacrilegium.Suarezdih.^.de Sacrilegio CJ.vu.l.
(5O Notwithffanding what has been faid, Band defines Sacri-
ledge to be the taking a-ii>ay or fi-ealtngfcrne [acred thing cut of feme
'Suhlick facred place ; this is moll: properly Sacriledge, according to
Bartol. Bart, in I. SacriUgij pcenam. ff. ad Leg. Jul. Peculat. to
which it may not be impertinent or fupcrfiuous to add [ cum ani-
mofurandu ~\ The Civil Law punifh'd it with death, firf;rr. ihid. &
altj D. E. in diB. L. & Menoch. de Arhit. Jud. I. 2. Cent. 4. Caf.
38^. w/. 2. So the Athenians put a Bey to death for ftealing a
Plate of Gold out of Diana's Temple which fell from her Crown.
ey£liandii?,'), de var. Hifi. cap. 16, Among i\\tGrecians the Sacri-
legious Perlbns were not to have the common humanity of a Grave,
but were calt cut unburied. Diod. Sicul. lib. 16. Bihlic. in 6. An.
Bbilippt. Phsl'p King of Maced&n in his holy War againft theP^^o-
cenjes^ having taken their General -Dn^w/xrci;// and routed their
Army
Of Sacr Hedge. 531
Anny, commanded the General to be hai1ged,the reft to be drowned
like Sacrilegious perfoiis. Idem di^. Itb. ann* 8, Philij). Alexander
the Great, in the Oljmfick Games caufed it to be proclaimed by an
Herauld, that all Exiles and binilhed Perfons, except for Sacriledge
and Murder^ fhould be permitted to return to their own Country.
Idem. lib. 17. An. 9. Alexandri & Gemift. Vletho. lih.2. de Gefiis,
Grac.pH pignam Mantineam. Pleminius Embaifador from Scipio
to the Senate of Rome, having robbM the Treafiire of Troferpina^
and being now nigh dead by amoft fearful and horrid kind of difea(e
before he was brought to his Trial, the Roman Senate notwith-
ftanding condemned him in double the fum to Proferpina. Livius
lib.p. Bel.2. Punic, d^ Valer.l.l, cap. 2. Domitian, when it was re-
f)orted to him by the Flamens or jupiters High Priefts, that one
Ijad ered:ed a Monument for his Son with Stones defign'd for the
Tempel or Capitol^ commanded the Monument to be pulled down,
and demolifhed, the Bones and Afhes of the Party to be caft into the
Sea, and the Stones to be reftored to the Temple : Sueton. in
Domitian.cap.S. A'ew^p^ow relates out of the LzwsoixY^ At henians
againll Sacrilegious Perfons in thefe woxds,viz,.Judge^O Athenians,
in this matter according to the La'jv made againfi Sacrilegious Per-
fons and Traitors, That if any hath committed Treafon or Theft of
things Sacred, let him be adjudged to death, and let Sentence be
that he be not buried in Athens, and all his Goods confifcate. Xenoph.
de lege Athenienf. Another Law againtl: Sacrilegious perfons apud
Conftantinum Harmenopulum, tn hac <verba, IVhoe'ver fieals any
thing Sacred cut of a Sacred place,let him have his Eyes plucked out,
Ctonfi. Harmen. lib.6. Prompt, jur. car. $, Gwtchanus King of the
Parifians and Galls, with his Nobles and BiQiops affembled on the
Feftival of Symphoryanus , made a Law that their Armies or
Souldiers fhould not on pain of death, either in their March or on
a Vidory, ruin violently into any Churches or rob the fame. Greg*
Turon, lib. ^. Hijl. Franc, c. :^o. Clear chus zndi Scitacles, Souldiers
under Alexander the Great, being accufed by his Army of robbing
and fpoiling Churches and removing ancient Monuments , were
commanded to be put to death, Orxines, who fucceeded Phrafaor-
tes in the Kingdom of Per/la, being accufed and convided of rob-
bing and wafting the Temples, Churches, and the Monuments of
the KingSjWas by Alexanders command Crucified to death. Arria.
lib.6, in fin. de expedit. Alexand. The Law in • fome cafes doth
leave the Penalty of Sacriledge Arbritrary, efpecially where any
Churches are notorioully and violently broken open, and the Of-
ferings or facred Veflels thence ftollen away by night, in which cafe
the Puniiliment is C^pi?^/ ■, and fo pradtifed in the Kingdom oi Na-
ples ■■) Boerri JDectfz 5 \,num. 1 3 . It is not the value of the thing ftolen,
Kkkk that
r22 ^/ Sacr Hedge.
that caufes this crime of Sacr Hedge to be fo fevcrely punifhed, but
becaufe there is more of audacity and iniquity in this kind of Theft
than of others of inferior circumftances ; and therefore Calijiratus
accufed Menalofus that he had robb'd Temfli Cuftodts^ Anglice
Churchwardens, and had thence ftoUen away 3 very fmall VefTels
minimi ponderis, yet even this was punilhed as Sacriledge of a very
criminal nature. Innumerable are the Prefidents of this kind found
among Hifiorians i to which might be added that of Famous or ra-
ther Infamous Remark, touchijig Charles Mattel^ King of France^
cujus animam ffays Tritemiui ) vifam defortari ad InfeYos., ^uod'
ntultas Ecclejias JpoUajJet^ dum hellis immicos ferfequeretttr. Tri-
Urn. in Breviar.HiJi.Franc.infn.
(6.) Touching Sacriledge as diverfified in refpeift of Terfons^
Tlaces^ and other things Sacred, the Camnifis enumerate fucH
kinds thereof, as would fecm very uncouth and ftrangc for us to
bear of in this Kingdom, as the Conftitution of Ecclcfiaftical State
thereof is now molt proteftantly eftablifhed j they are therefore here
purpofcly omitted. The penalties likewife inilided on Sacrilegious
perfons vary according to circuniftanccs, and as the kinds or degrees
of the Sacrtledge are \ and herein the Canon and the Civil Law
have provided very different penalties", which at the Canon Lzw
are of one kind, and at tiie Ci-vil Law of another : But according
to the ancient Ecclefiaftical Conftitutions of this Reahn, Sacriledge
of what kind foever, regularly iiKurr's the Penalty of Exccom-
munication^ which admits alfo of diftindions : For as there is the
greater and the lefTer Excommunication \ fo there is Excommu-
nication iffo faBoy in Contradidtion to that which is only iffo jw
jf(?; alfo the Law even in. this point of Sacriledge doth diftinguifh
between Excommunication latam^ and ferendam s for if it be
Sacriledge committed againft an Ecclcfiaftical Perfon, then accord-
ing to the Canon Law,aiKl as heretofore pradifed in this Realm the
penalty vidsExcommunicatiO lata'-, but when it is in refped ofibme
tilings pertaining to the Church, in that cafe the punilhment was
Excommunicatio ferenda. LindvJ, de tmmim. Eccl, c. i. Glo. m ver,
•mnibus pcenis* And fometimes a pecuniary punifhment was inflidt-
cd for Sacriledge.. 17. ^. 4. c. e^uifquts & c. fiquis contumax. The
Ecclefiaftical Law doth not punifh Sacriledge with that aullerity and
feverity as the Civil Law doth, /. S^crilegio f, ad Leg. Jul. pecu-
latt whereby the punilhment fometimes is Damnatio ad hefiias,
ibmetimes the Sacrilegious perfon is burnt alive,fbmetimes hung on a
Fork, fometimes condemned to the Mines, fometimes bani(hed, and
fometimes fentenced to death in the ordinary way of Execution*
|;le that is guilty oi Sacriledge againfi an Ecclefiafhcal perfon is by the
CanoTi Law Ex^ommum^tM t^fi fa^o^ 17.5'^ 4.C. Ji(^uis fuadente,
Eut.
Of S act Hedge. ^^^
I But if he be in rebus Eccle/ta, he is by that Law Excommumctwdus
. de Foro cowpet»c.conc}uefius. If it be committed in the Church, and
1^ that by firing or breaking it open, in that Cafe the Sacrikgkus
) perfon is ipfojure excommunicated, de fent, Excom. c. concfuefii. If
it be without burning or breaking it open, as when a thing being
left in the Church, is taken away, in that cafe he ought to be excom-
municated. De furtih,c.fn. And this ( fays Undwood) may ftan4
as a rule in Law, that wherever you find that regularly «the Sacrile-
gious perfon is not ipfo jure excommunicated tnajori Excommuni-
catione^ it hath thefe feveral Fallentias^ that is, it doth not hold iti
cafe of burning, violating, fpoiling and wafting of the Church, nor
in burning or breaking open the Church door, nor in Sacriledge
againft an Ecclefiaftical perfon, nor in cafe of ftriking or violently
apprehending any man in the Church, nor in any forcible or violent
taking away any thing out of the Church, nor in any that were exi-
communicated before for the like offence, nor in fuch as pull down
or demolilh the Body of the Church or any part thereof, and the
like, Lindw, de immm Eccl. cut iti'vadentih.glo.in 'ver, Excowmu-
nicati. All which is likcwifeexprefly fet down in J.de Athens Glois
on Cardinal Othohons Conftitutions, de ahjiraljentib.Confug.ad Ec-
clef.c.ad tutelamglo.in'ver.Ohfer'vari.dLnd feems to have an adequate
affinity with what Solomon ( who, as in other things (6 elpecially in
matters of the Temple, had the beft experience ) fays. It is a fnars
to the man^ who de-voureth that which is Holy. Pro.20.25.
• (7.) The dreadful Curfe denounced againft Sacrilegious Perfbns
appears in that remarkable pafTage in Parliament about Four hun-
dred years fince, where the Priviledges of the Clergy, and Franchi-
fes of the Church, were f with the Liberties of the People) grant-
ed, confirmed, and fetled by the King in full Parliament, Anno
1153. in fuch a folemn manner, as no Hirtory can parallel i The
King flood up with his Hand upon his Breafi, all the Lords Spiri-
tual and Temporal flood with burning Tapers in their Hands, the ^
Archbifhop pronounceth as foUoweth, viz.. By the Authority of God
Omnipotent^ of the Son^ and of the Holy Ghofi^^cWe excommuni"
cate^ Anathematiz^e^ and fequefier from cur Mother the Church
all thofe^who henceforth knowingly and malicioujly deprive and ^ oil
Churches of their right, and all thofe that jJjall by any art or wit rajl)' .
ly 'violate^ diminijh, or alter fecretly or openly, in Deed, Word or
Ccunfel, thofe Ecclefiafiical Liberties,Scc. Granted by our Lord the
King^ to the ArchbiJl}Ops^Bijhops,Vrelates, dec. For everlafiifig me-
mory whereof, we ha%ie hereunto put our Seal. After which, all
throwing down their Tapers, extinguifli'd and fmoking, they all ,
faid, So let all th^it jloall go againft this Cttrfe, be extinct and ft inch V^' ^^^^[^'
in Hell, And Ethelwolphus, the fecond foie Monarch among the ^^^^ __ ^.^^
K k k k 2 Saxon
554 Of SacrileJge.
Saxon Kings ••> having by advice of his Nobles, granted for ever
to God and the Church, both the Tithe of all Goods, and the
tenth part of all the Lands of England.^ free from all fecular Ser-
Vld. the Char- vice, Taxes, or Innpofitions whatTbever, concludes the faid Grant
ter of Donati' qj Charter of Donation m thefe words, 'ui'Z,* Qui augere 'voTueriC
^^ A ^^^^^l nofiram Donationem^ augeat Ommpotens Dem dies ejm profperos;
Authors. Jiquis vero mutare t'el minuere frafumpferit.) nofcat fe ad Tribunal
Chrifii raticnem redditurum,
(8.) Eh-. Heylyn in his Ecckjta Reflaurata relates a remarkable
Pag. 224,22$. pa^gge touching a fad Judgment, that in the time of Queen Mary
befel Buckly Bifhop of Bangor^ An. i 541. for the SacnlegioHs ha-
vock he made of the^ Lands- and Patrimony of that Church, who
not contented to alienate the Lands, and weaken the Eftate thereof,
refolved to rob it alfo of its Bells ( for fear perhaps of having any
knell rung out at the Churches Funeral,) and not content to fell
the Bells which were five in number, he would needs fatisfie himfelf
with feeing them conveyed on Shipboard, and had fcarce given him-
felf that fatisfadion, but was immediately ftruck blind, and fo con-
tinued from that time to the day of his death.
CHAR
535
CHAP. XXXIX.
Of Simony.
1 . The Def flit ion ani Defcription of Simony , the T^ahks
thereof.
2. The dijference between Simoniacus and Simoiiiace Promotus i
the latitude of that ivord Simony.
3. Ho-iv the annual 'value of a Benefice is compttaile upon the for*
feiture of by reafon of Simony. "
4* Whether a Clerk Simcniacally prefented^ bat not fri'vy to the Si^'
mony^ be dtfabled for that turn to be prefented by the King to
the fame Church ?
5. The diverfifications of Simoniacal Contra Eli , or the various
"u^ays of commtting Simony,
6. An Obligation to prefent one upon condition of refignation^ may-
not be Simony. ; ^ "^' _
7. To proTnife one a Sum of Mony to heftow BH ^dieavonr to
procure one to be prefented to a Benefice, is a Simoniacal Con-
tra5{.
8. Several ways of contraBing, obliging^ and agreeing, Tvhich
will amount to Simony.
p^ A Clerk may oblige to his Patron to pay a Sum ycalrty, and
yet «o Simony.
10. The Flea of Simony is a good Bar to the Tar fens demand of
Tithes*
\ I . Whether the fathers free Covenant 'with his Son in Law^ upon.
the Marriage of his Daughter to frefent him to fuch a Living
•when it falls, be Simony ?
12. Whether a Simoniacal 'Ufurper fhall prejudice the rightful Pa-
tron, by giving the King the prefentation ?
13. Whether an Incumbent that is in by Simony, may after a gc
neral Pardon be removed ?
14. The grand Cafe of Calvert and Kitchin^? the Common Lav/
tmching Simony. ^
15. To convey a corrupt gift by an innocent hand, will not excttfeit
from being Simony.
16. The Kings Cafe againfi the Archbiflwp of Canterbury, Sir
John Hall, and Richard Clark touching Simony.
17. The Proof of Simony in a Parfon is good to bar him of Tithes*
S36
!l8. A Vatrons Vrefentation upon the 'Brefentees Obligation to makt
a Rejignation ivithin Three Months after the Vatron fo pleafe^
■may amount to Simony "u/ithin the Statute «/" 2 1 Eliz. cap.
16.
ip. A corrupt contra^ for an Adwofon may make the fuhfequent
Incumbent Simoniacal. .
20. to plead a Simoniacal Contract againfi a Bond, it not fo ap-
-pearingj is no admijjable Plea,
21. Majhrs of Chancery, why fo called y and what they werenn-
ciently,
22. Prohibition to the High Cowmijfoners, that would have put
a Parfon to his Oath touching Simony.
23. In what Cafes ( b/ reafon of Simony ) the Patron may prefent
after fix Months i and the Church faid to be full as to one, not
to another.
24. The InjunBton of King Ed. 6, againfi Simony.
2 5. The form of the Oath of Simony.
16. A SimonucdXContraB a good plea in Bar of Tithes.
I'J. A further dejcription in Law of the difference between Simo-
niacus, and Sinrroniac€ Promotus.
28. Tj6^ Simoniace Promotus, though ignorant of the Simony y yet
is deprivable in the Ecclejiafiical Court*
2p. A Simoniacal Contra^, to which neither the Incumbent nor
the Patron are ^r ivy, may yet be Sitnony within the Statute of
31 Eliz.
30. Simony in it^s utmofi latitude is properly ccngniz^ble in the
Ecclefafiical Court.
31. Simony worfe than Felony i A Bond or Obligation good,
though entred into upon a Simoniacal Central.
32. Whether a Parfon oufied for Simony, may be after admitted
to the fame Benefice by the Kings prefent ation.
33. y^ P^r/i>w Simoniace Promotus, and oujled, is by the exyrefs
words of the Statute difabled to accept the fame Benefice.
34. Where Simony is pleaded in Bar of Tithes, the Ecclefafiical
Court fiiall take Cogmz,ance, and no Prohibition lies.
35. Whether the Father may buy the next avoidance, and prefent
■his Son •> no Simony to buy an Advowfon,
^6. To procure a Man ( in conf deration of Marriage) to he
.prefented to a Benefice, is Smony.
3 7. Four obfervations on the Statute of ^i Eliz. cap. 6. by the Lotd
Cook.
38. The extent of the words ( Prefent or Collate ) in the /<aid Sta^
tute, alfo the diverfity in Laiy between a Prejintation made by
a Righttul Patnn and an Ufurper,
3 p. What
Of Simony, ^^y
35>. What punijl)ffi(nt hy the Canon Law in cafe of Simony i and
the firange conceit of RebufFus touching the fame,
40. The reafons "why it hath its denomination -from Simon Magus ;
how many ways it may be committed according to the Canon Law*
(l.)f^IMONT ( from Simon Magus^ as Thomas Aquinas and
^^ others conceive, Tbo.Aquin.lo.i.a.tj.ioo.art.i, ^ 40.)
^^ is according to Tanormitans definition thereof, fiudtofa
'voluntas emendi vel vendendi ali^uid Spirituale^ 'vel Spiritual
annexum, opere fubfecuto^ Fanor cNemo ixtra. Sec Or it may be
defcribed thus,i;iss. Simony is when any perfon is prefented or col-^ simonia efl
lated to any Benefice with Cure of Souls, Dignity^ Prebend, or Li^ vox EccJcft.
ving Eccleliaftical, Sec. or hath any fuch given or beftowed on him ^^^9' ^ Simo-
for or in any refped: of any fum of Mony, Reward, Payment, Gift, 5^/'^ ^'^\
Profit, or Benefit diredlly or indiredlly, or for or by reafon of any donum%?d-
Fromife, Agreement, Grant, Bond, Covenant or other afTurance for tosSaniSi pc-
any fum of Mony, Reward, Payment, Gift, Profit or Benefit what- *^"°'i» «nii pu-
foever, diredly or indired:]y, or for or in refped: of any fuch corrupt V^\
caufe or confideration, and every Prefentation, Collation and Gift, iiia"vcDdere
as alfo every Admiflion, Tnveflure ajid Indudion, thereupon is by quse gratis
the Statute utterly void ('c), and whereby the King his Heirs and diftribui de-
Succeflbrs for that one turn only (hall prefent, collate, &c. And ^^j"!' ^..
every perfon fo giving or taking any fuch fum of Mony, dec. taking c. d. * "*'
or making any fuch promife, dec doth forfeit and lofe the double
value of one years profit of every fuch Benefice. Moreover, the
perfon fo corruptly taking any fuch Benefice is thereupon and from
thenceforth adjudged a perfon difabled inLawtoJiold and enjoy
the fame Benefice (d). The like penalty of the faid double value W Scat, ibid.;
doth he incur, who for any fum of Mony, Reward, &c. diredly
or indiredtly (other than the lawful Fees ) or for or by reafon of
any promife, iscc. doth admit, inlHtute, inftal, indud any perfon
to, or in any Benefice with Cure, &c. Likewife if any Incumbent
of any fuch Benefice (hall corruptly rcfign or exchange the fame, or
for or in refped thereof fhall corruptly take, diredly or indiredly,
any Penfion, Sum of Mony, or Benefit whateva-, in fuch cafe both
the Giver and the Taker corruptly as aforcfaid, fhaU forfeit double
the value of the Sum fo given, taken or had, whereof the one
Moiety to the King, &cc. the other to him that (hall fue for the fame
in any Court of Record C^). In which Statute of 5 1 El iz,. thac
is aProvifo, that the cenfures Ecclefiaiiical (hall not be reftrained by CO Ibid.--
ajiy of the Premifes therein contained,
(2.) They that Simoniacally buy Ecclefiaftical Livings are compa-
red to Sim-'n Magus^ and they that fell them to Gehazt the Servant
of EUp^a (fj. If a perfon be pofifelt of an Eccleliaftical Livii3g [{^ |^f '"S" 5-
"by ""'
538 Of Simony,
by fuch Simony as whereunto he was not privy, he is faid to be in
only Smoniace : but if h? be in any corrupt and Siwomacal Con-
trad, to which himftlf is a party, and was privy and confenting
thereunto,in that cale he is Simoniacus s both which are inhibited by
the Canons Eccleliafiical or Provincial Conrtitutions, as alfo aie
the faid corrupt and Simonlac.d felling as well as hying Ecclcfiafti*-
cal Livings, Lind* c. NaUrliceat Ecclefiam ^c, 'Quia flerumcfucy
and that under penalties greater than the Temporal Laws did then
ornow will allow of. And although by Simony in the vulgar ac-
ceptation of the word, is cotnmonly uiKlerrtood fuch corrupt Con-
tra<f^s for Ecclefiadical Livings as aforefaid, yet it hath a more ex-
tenfive fignification and that is a more proper fenfe, which is by cor-
.. .; ,. rupt Ordinations of Minifiers, as for undue Licences to Preachy for
'"'^W&'i^'"'^ prevention whereof it is provided in the Statute aforefaid {h). That
^^uia.St.p j£ j^iyy perfoii (hall receive or take any Mony, Fee, Reward, or any
promiilioneV <^ther Profit diredly or indiiedly, or any Promife, Agreement, Co-
& paftiones venant, Bond, or other aflTurance therof ( lawful Fees excepted )
SimoniaGasps- fo^ ^^ to procure the Ordaining or making of any Minifter, &c.
nicus revoca- ^^ giving any Order and Licence to Preach, (ball forfeit Forty (hil-
pofterum fieri li"§s, and the Minilter fo made Ten pound, befide the lofs of any
diftriftlus in- Benefice, Living, or other EcclefiafticalPromotion after Indudion,
hibemus. that any fuch Minifter fhall within {v^tw years next after fuch cor-
Oth b°° cap. *''"^P' ^'if^'i^S ""^^o ^''^ Miniihy, accept and take ■-, the one half oi
quia plerumq:* which Forfeitures do go to the King, &c. the other to the Liformer,
&c. And the Patron in that cafe may prefent, occ. as if the party
'Ibindudled were naturally dead.
•' C3O The Forfeiture' of the double value of one years profit of the
Church by way of penalty, as is before mentioned, is not to be com-
puted only according to the valuation in the Kings Books in the Firft-
fruit Office, but according to the juft and full annual value of the
YnCo ; Inft. ^h^^'''*^^"' (0* "^^is double value (hall be accounted according to the
1 54. ' * ' very or true value, as the fame may be let,and fhall be tried by a Jury,
and not according to the extent, or taxation of the Chwrch, Co.^^r.
■^.Jnftr.c\zd,']J. And albeit the Clerk be not privy to the Simoniaek
Contradt, yet it fcems the Patron fhall pro hac 'vice lofe his Prefen-
>tO Co. 12.74. tition (k). But the Title of the rightful and uncorrupt Patron
fhall not be forfeited or prejudiced by the SimomatdCo\\txdi& of an
Ufurper, albeit the Clerk be by his Prefentation admitted, infiitutcd
and induced, nor entitle the King to prefent.
r4-) The Church, notwithftanding the Admiflion, Inftitution
and Indudion, becomes void, whether the Clerk prefented wei€
a party,or privy to the corrupt and Simoniacd Contrad: or not ',
%\x\.'^\i Simon 'De.^ge mhis P arf on' s Carmfc I lor: fui'^ the material
'Qiieftion, -viz,. Whether the Ckrk that is frefmted-u^&n^Simoma-
cal
Of Shriony, 53^
tal ContraBy to 'which he ft neither party nor privy ^ be difahledfor
that turn to be prefented by the Kin^ to that^ viz. the fame Church ?
'Ill order to the refolution whereof lie acquaints us with a Cafe re
ported, wherein it was adjudged, that if the Clerk were prefented
upon a Simoniacal Contradt i to which he was neither party nor
privy, that yet notwithftanding it was a perpetual difability upon
that Clerk as to that Church or Living (/ J. The like in another (/)P3fch. 17.
Cafe, where 5. (the Church being voidj agreed with the Patron Jac.B.R. Cafe
to give him a certain fum of Mony for the Prcfentation \ B. pre- Fonvler verf.
fented C. who knew nothing of the Stmomacal Contrad till after f^^ p7,"J»J
his Indudion i in this Cafe it feem'd by Warburtcn Juftice, that councellor,
C. wzsdJ\{dh\t^ quoad hanc Ecclejiam (m). In which Cafe it was par.i.cap.j.'
clear, that the grant of the Prefentation during the vacancy was W ^?}^'^^„
meerlyvoidi that 5. prefented as an ufurperi that C. wasin by the ^gj|g^l^|.jj'j^^*
corrupt Contrad i and that were it not for the fame, the Patron Rogns. Cro,
would not have fuffered the Ufurpatiog. In further confirmation Eliz. 788.
hereof it is alfo reported to us that Sir Edward Coke affinued it
hath been adjudged, that if a Church be void, and a Stranger con-
trails for a fum of Mony to prefent one who is not privy to the
Agreement, that notwithlbnding the Incumbent coming in by the
Simoniacal Con trad, is a pcrfon difabled to enjoy that Benefice,
although he obtain anew Prefentation from the King ■•, for that the
Statute as to that Living, hath difabled him during LifeCw). Not- C«3Careof the
withftanding all which Premifcs,Sir Edward Coke in his Comment ^[^^^^^(^^^^^
upon the (aid Statute of 31 Eliz. afferts it to have been adjudged ^/cj^.^co/? and
in the forecitcd Cafe of Baker and Rogers, that where the Prefentee ^o^^v.Cro.Jac.
is not privy nor confenting to any fuch corrupt Contrad, there sSs.Bulftr.j.
(becaufc it is no Simony in him) he fhall not be adjudged a dif- 92.
ablcd perfon within the laid Ad, for the words of the Statute are
(And the perfon fo corruptly giving^ &c.) And fo ('fays he) it was
rcfolved Mick 13. Jac. Where the Prefentee is not privy nor cgn-
lenting to any corrupt Contrad, he fhall not be adjudged a difabled
perfon within this Adjbecaufe it is no Simony in him Coke Infi. (0) C0.5 Inft.
par. 3. cap. 7 f . (<? \ Alfo it was fo refolved in Dodor Hutchtfons 1 54 ^^V-l ^«
Cafe by the whole Court, 'viz.. That if a Clerk be prefented upon a
corrupt Contrad within the faid Statute, although he be not privy
thereunto, yet his Prefentation, Admiilion, and Indudion are all
void within the Letter of that Statute, but not within the Claufeof C?)C-'2'ioi-
difability within the fame Statute (p). ^^^^on o/all'
f5j The Contrads which are commonly held corrupt and The Judges of
Simoniacal^ may be diverfihed almoft into as many kinds as trans- Serjeant Inn
ferences and proprietary negotiations are capable of s but thofe '".^j^^^J^""!^*^^'
which have been moft in pradice (as appear^ by the Cafes reported perfon counf,
in the Law) have been byway of unlawful purchafing the next ubi fupra.
L 1 1 1 Advow-
540 Of Simony,
Advowlbn by Exchange, by Refignation, Bonds by Matrinnoni-
al compads, by contra(^s ren:iote and conceaPd from the Prefen-
tee, by Obligations of an indiredt nature, and the hke. To the
purpofes aforeiaid it hath been held Simony for a Parlbn to pro-
■mife his Patron a Leafe of his Tithes at fuch a Rent, in cafe he would
prefent another- Parfon into his Benefice, with whom he was to ex-
change, albeit that other was not privy to the ContradV, he making
(f )flill.i5.]ac. the Leafeafter (q). It was likewife held Simony for a Father to prc-
Rot.667. c.B. fgj-jt his Son by vertue of a purchafeof the next Advowfon, which
Vrrcdens^Czlic. ^^ ^'^^^ •» the prefence of the Son, a Clerk, when the Incumbent
{r) Cafe Smith was not like to live by reafon of a Sicknefs, whereof he foon af-
vcx(. sheiburne. ter died (r). Othcrwife, in cafe the purchafe had been made
Mmgi6, Cro. j^ tlie abfence of the Son, as is hereafter mentioned (s)» But
O^Ibld.& Infra P^^ H"ff- if was held Simony to purchafe the next Advowfon, the
eod. Noy Rep. Incumbent being fick (t). The like in Winchcomhes Cafe againft
{t)QzkshtUon the ^i^o^pdiWincheft-ir and Pulefion, a Cafe hereafter often margi-
'^.j}^^^^' «ed on feveral accoimts, where it was held Simony in one Say.^ who
(u) Hob. f^f. ^"^^ prefented upon a Contract which he made with the Patron (the
vid. Parfon's Incumbent being then lick ) for ninety Pound to preient him
couneeUor, when the Church (hould be void {u). And as to Reiignation-
parr.i, c.^t Bonds, Sir Siwon Deg^e affirm?,that in the cafe of yones and Liiw-
rence the fenfe of the Court was, that if ^ Man be preparing his
Son for the Clergy, and have a Living in his difpofal, which falls
void before his Son is capable thereof, he may lawfully take a Bond
of fuch perfon as he (hall prefent, to reilgn when his Son becomes
capable of the Living '•, otherwife, in cafe the Patron take a Bond
abfblutely to rel]gn upon requelt without any fuch or the like
caufe i as for avoidance of Pluralities, Non-reiidence, or other
Of) 8 Jac.Cafe. fuch reafonable defign (tv). The like you have in Babbington and
rTcTao!''' ^^^'!^'^ P^^^ hereafter mentioned. So that it feems Bonds and
248, 224. Farf. Obligations given and taken upon jufi: and honeft grounds to refign
counctUor.Wiid, are not in themfelves Simcniacal j Otherwife, where there is cor-
ruption in the cafe, accompanied with fome fubfequent A<5t in pur-
fuance thereof. And although prefentations made upon Simcniacal
Bonds and Obligations are void in Law, yet fuch Bonds themfelves,
though corrupt and Simoniacal^ are not made void by the Statute of
r*) Co.?. Inft. 3 I £/,;^. (^J.
*51- Noy.72, ^^^^ g brought Action againft C.upon an Obligation, the Con-
■ dition whereof was, That whereas the Vlaintijf aid intend^ and was
about to prefent the Defendant to the Benefice o/Stow, if the Defen-
dant at the requefi of the Plaintijfjhonid refgr. the fame to the hands
cf the Bijlwp of London, then the Obligation to be ^oid. The De-
fendant demanded O/er", and demurr'd, and adjudg'd for the Plain-
tiff, for.thc Relignation might be upon a good intention to prevent
Plib-
Of Simony, 541
Pluralities, or Tome other caufe, and it fhall not be intended Simony^
if it be not fpedally pleaded and averr'd i and Mtch. 37 and 3 8 £/.
Between Jones and Lawnnce it was adjudg'd accordingly, and af^
Hrmed an Error, which the Court viewed, and thereupon Judg-
ment was given for the Plaintiff ia). (a.) Hill.^.Car.
(7.) The Plaintiff declared, that the Redory of St. Teters infra B.R. Cafe B^ft.
Turrim London was void, and that the Defendant in confideration ^^^^^^ ''^'J*
that the Plaintiff would befiow his labour and endeavour to caufe 7^^^^ Rep.'
or procure him to be Redor of the faid R.ed:ory, promifed to give
him twenty Pounds \ and that after the faid Plaintiff procured him
to beRedor by the Kings CommilTion, and notwithflanding that he
had required him to pay the faid twenty Pounds, &c. and there-
upon he brought his Adtion upon the Cafe in the Court of die
Tower of London^ and upon Non Ajfuntffit^ it was found for the
Plaintiff, and Judgment was there given, upon which the Defendant
brought Error, and una voce all agreed that the Judgment was
erroneous, for the conlideration was Simoniacal and againfl: Law,
and not a good conlideration,therefore the Ajfuwfjit was- not good,
the Judgment was reversed i the Attorny faid, that that Court was
a Court-Baron i as appears by a Record in the time of King Henry
the Sixth (b). (iJPafch. 15.
(^.) If A. be obliged to prefcnt B. &c. and he prefents by St- Car. B.R. Tod-
tnonji yet the Obligation is forfeited (c). Or if one Contrad: with <^^''''^^J verf.
the Patrons Wife to be prefented for Mony, and is accordingly jonef^ln,
prefcnted by her Husband, it is Simony vfithm the Statute of 31 (c) Per Hob.
Eliz,. and makes the prefentation void (d). For the Contrad of the Cafe n'inch-
Wife is theContradof the Husband (e). Likewife if the Patron '/,f ^J^'^j^f'*
prefent one to the Advowfon, having taken an Obligation of the f^J'^jviJch^ ,2.
Prefentee, that he (hall rellgn when the Obligee will, after three jac. B R. Cafe
Months warning, this is Simony within the Stat, of 21 Eliz,. cap. of the K,- ^crf.
16, per Curiam (f). Alfo if one promife to a Man that hath ^^-'^^L^/r^'^'
a Mannor with an Advowfon appendant, that if he will prefent him, ^i 27 H. 8.2?!
d^c. after the then Incumbents death, he will give him fuch acer- (/)Trln. 15.
tain Sum of Mony, and the other agree thereto, and that by agree- jac C.B.Ror.
ment between them the next avoidance (hall be granted to B. Sec, ^^5^* j^'"" ^^*
who after the then Incumbents death prefents accordingly, this is cUrk.Hoy '
Simony becaufe there was a corrupt Contrad for the Advowfon Rep.
(^). For although the next avoidance may be bought and fold ko- (<?) Cafe ^fmfc-
na fide without Simony^ yet if it be granted to one to perform a cmbverCPuUe-
corrupt Contrad for the fame, it is otherwife (h)* But if the -^j^wj^jj^ ^'
Father purchafe the next avoidance, and after the Incumbents (/} Adjudg.42
death prefent his Son, this is not Simpny (i). Yet by Hoh. Chief & 41 Pitz.
Juflice it was held, that i^ in the gjfant of the next avoidance it f"^^^^,^^Qj}^''
appears that it was to the intent to present his Son or his Kinf- ^^y ^^^^
L 1 11 2 man
54^ ^f ^^^^^^y*
(.^ Noy ibid, i-nan, and it was done accordingly, it is Simony (k). Likewife.
if a Mans P'riend proniifes the Grantee of the next avoidance a cer-
(/) 7 ]ac. cd' f^j^ ^m^ Qf Mony, and fo much certain fer annum^ if he will pre-
'kjnfmln CtTv. ^^'""^ ^' ^^ ^^^ Church Quafido, 8cc. and B. not knowing any thing
Scaccar. Noy* of theContrad, be preleiitcd accordingly, this is Si»?ow/ C/j. For
^^P" if a Stranger contradt with the ^ axion SimofiiacaUy^ it makes the
S^ifcif ''' P^efentation void (m).
the K. vcrf. Ei- CpJ* A Patron took an Obligation of the Clerk whom he pre-
fhop of No?-- Tented, that he fhould pay ten Pounds yearly to the Son of the
W^i; Roll. ^ laft .Incumbent^ fo long as he (hould be a Student in Cambridge
Bab^^^^C^i "* unpreferr'd ■•> this is not Simonj ■■> otherwife, if it had been to have
verf. \iou7ijord P^'^ ^^ t:o the Patrons Son ^er Cur. (»). An Obligation was made
Noys Rep. by a Prefentee to a Patron to pay five Pounds per annum to the late
(0) E-off/f* Incumbents Wife and Children \ the Parfon kept and enjoyed the
bv 'f^^n^] • P-irTonage , notwitlillanding great oppoiition to the contrary
iVicei'ndift. C'')-
Bakers Cafe. 0^-) A Paifon preferr'd his Bill for Tithes, the Parifliioner
I>Joy Rep. pleaded that he was prefented by corruption, &c. and by Simo-
dor°H/<fcL>r °' ^y^ ^"^ ^ Prohibition was granted, notv^ithlknding the Parfon
fcKs Cafe cited Pleaded pardon of the Simony by the King > and it fcem'd, that it
by iparburton was now triable by the Common Law (p). The Cliurch may be
and Huttan. f^|i qj- ^^,Q[^ jj^ effe<^f^ when there is a Simoniacal Incumbent v yet
iq) D\S(.'ci{ ^^ ^^y ^'^^ Church was full for lix Months is no plea, when he was
H'inchcomb ii^ hy Simony i For a ^are Impedit may be had by the rightful Pa-
vcrf. Puliejion, tron after the fix Months againlt the Incumbent of an ufurper, that
is in by Simony (q). And the death of i Simoniacal Incumbent doth
not liindcr but that the King may prefent, for the Church was
never full as to the King, and that Turn is prefented to the King by
(r) Ibid. force of the Statute (r).
[^Inb^CiCe'^^^^' C^^^' '" ^^^ Statute of 31 Eliz. there is no word of Simeny^
Ct) Diift.Caf.of ^"^^ ^y ^^^'^^ means then the Common Law would have been Judge,
the King verf. what fhould have h^^n Simony and what not (s) \ by which Law
the BiQiop of the Simoniack is perpetually difabled (t). And a Covenant to
^^rnvf^ Roll, prgfej-jt fu(-i^ g o,-,^^ p^^j^. m^^j^j. ^j^y conlideration whatever, be it
of Marriage or the like, may be Simoniacal ■■, but if a Father in Law
upon tlie Marriage of his Daughter, do only voluntarily and with-
out any confideration. Covenant with the Son in Law, that when
00 Cro.Car. ^^'^^ ^ Church, which is in his Gift, falls void, he will prefent him to
42^. ' ' it 1 It hath been held, that this is no Simony within the faid Statute
(w) Hob. 167. (u).
(:>r)Parch 17. (i2,) K Simoniacal Ufurper prefenting, fhall not pre judice the
yo.'Bms%crl ^'^&^^^}^^ Patron, by giving the King the Prefentation f U'). The
(rr:-ghtyi6']j pf«o^ oi Simony will avoid an Adion of Tithes commenced by a
i6Z,i77' SimQnJack.?dx(oi\ (x) i who dying in polTeirion of the Church,
die
Of Siviony, 543
the King lofcs not his Prefeatation (y)^ bccaufe the Church was 0) Hob, ibid,
not full of an Incumbent \ but remains void though the Simony ot
'Penalty thereof were pardoned. Lajtly, All corrupt refignations
and exchanges of EccIelialHcal Livings, are puniQiable with the for-
feiture of double the Sum given and received, both in Giver and
Taker, by the faid Statute i but it feems this works no avoidance or
difability in the publick perfon.
(13.) The Patron of an Advowfon before the Statute of 31
JLli'z^, for Simony dotli lell froximam Ad'vocatiomm for the fum of
Mony to one Smith, and he lells to this Smith the Incumbent ;
After which comes the general Pardon of the Queen, whereby the.
puniftiment of Smith the Incumbent is pardoned, and of Smith
the Patron alfo. If the Incumbent may be rdmoved was the Que-
ftion : WiUiams faid that the Dodtors of the Civil Law informed
him, That the Law Spiritual was, for that Simony the Patron lolt
his Prefentation, and the Ordinary (hall prefent, and if he prefent
not within fix Months, . then the Metropolitan, and then the King..
Spurling Serjeants This puniQiment cannot difcharge the Forfeiture,
although it difchargcth the punifhm.ent. Glanvil cont-m ; and faid
that this point was in queftion when the Lord Keeper was Attorny,
and then both of them confulted thereupon, and they made this di-
verfity, viz,. Between a thing void and voidable, and tor Simony
the Church is not void until Sentence Declaratory, and therefore
they held that by the Pardon before the Sentence all is pardoned, as
where a Man commits Felony, and before Convidion the King
pardons him, by this Pardon the Lord (liall lofe his Efcheat, for
the Lord can have no Efcheat before there be an Attainder, but
that is prevented before by tlie Pardon ; And fo here this Pardon
prevents the Sentence Declaratory, and (b no title can accrue to
the Ordinary. Walmfley contra : If a Patron be charged by the
Sentence, he may plead the Pardon. But if a Quare Iwpedit be
brought by a third Perfon, the Pardon of the King Hiall be no Bar
to him,for the title appears not to him.but only the punithment. An-
derfon, they may proceed to Sentence Declaratory, notwithllanding
the Pardon ; for the Pardon is of the punilhment, but the Sentence.
extends not to that, but only to declare that the Church is void.
Glanzfil) in 1 6 Eltz,. a Man was deprived of his BeneHee for In-
contincncy, and after he v;as pardoned and rellored, Walmjley, I
doubt much whether the King can Pardon Simony. And WiUiams
faid, that the Dodors of the Civil Law laid, that neither the Pope
nor the King could pardon Simony quoad culpam, but only quoad
;ifi?w^7w they may : And the Court at laft faid, that if the parties TO Hill 4 r.
would not demur,, they. would, hear the Dodors on ^^is "[^^"^'^ ^^^//fc^Cafe
(14.) In
544 ^/ ^i^^^^y*
C14J I« Calvert s Cafe againft Kitch'mzndi ?arkinfon in the
Exchequer, where ZC. not knowing of any Smoniacal agreennent, ^
was prefentcd, inftituted, and induded to the Church of D. and '
this after the Statute of 31 Eltx.. cap 6, -And thisPrefentation
belonging to the Queen by reafon of the Prefentation iox Simony by
force of the faid Statute •, the Queen prefented one B. and before that
B.was admitted and indua:ed,the Queen died i whereupon the King
prefented C. without any recital or niention of the Prefentation
made by tlie Queen, and without any revocation adtually made of
the faid firft Prefentation, and thereupon C. is admitted and infti-
tuted \ and for Tithes as Parfon he brought Trefpafs. In this Cafe
one of the points inQueilion was, if within the faid Statute here be
S'mony in the Patron, and not in the Parfon, if this ought to pre-
judice the Parfon or not? In this point Hitchcock conceived that al-
though the Prefentee in this Cafe, was not party to this corrupt a-
greement, yet he (hall be prejudiced by it, although not fo preju-
diced thereby, but that he may be capable to be prefented again to
the fame Beneficc,but hac vice the Prefentation of him is void i for as
Littleton {dkh, the Prefentee ought to accept the Parfonage fubjedt
to fuch charges as the Patron pleafeth, who in the time of vacati-
on hath power to charge it, and fo by his Ad had made it fujjjed to
the forfeiture, and therefore the perfon who cometh under himlliall
be prejudiced, &c. Damport to the contrary j the Patron and a Stran-
ger corruptly agree to prefent K. whereupon he is prefented i
If this fliall be void againft K. is the Queftion. To tliis he faid
that at the Common Law, if one be Simoniacally prefciited, yet
this is not void until the Prefentee be deprived •, and if before
the faid Statute fuch a corrupt Prefentation had been made, the In-
cumbent and Ordinary being free, then no Prefentation fliould en-
fue j and he vouched the faying of Lindwood to be accordingly :
but if Mony be given by the Friends of the Prefentee, and after
the King had notice thereof, and alTent, then it is not punifhable,
but pardonable at the difcretion of the King, and now by him the
Statute provides no punifhment for the Parfon, when the Patron
only confcnts to the Simony \ for he obferved that after the faid
Statute of 3 1 Eliz,. had appointed a punifhment for the Patron
then in the laft part of this Branch, the words are, T^be ferfons^ fo
corruptly taiivg, &c. (liall be incapable of the Benefice aforefaid i
and fo it ieemeth, that the intent of the Statute is not to punilh any
party, but he that is to the Simony^ and this is alfo explained to be
fo, but other Claufes in the Statute, for another Claufe inflidts pu-
niftiment upon the Ordinary, if there be any corruption in him,
and another Claufe inflids punifhment upon him who is party to a
corrupt Relignation, and fo in all the Claufes, thofe only who are
•par"
Of Simony, S4-S
partakers of the crime (hall be puniflied, &c. And in this Gafe was
no agreement afTented uiito by the Parfon i and this diverfity alfb
Teems to begood,that if y^.hath the Prerentation,and B.iht Nomina-
tion to a BeneHce,and the Prefentor upon a corrupt agreement makes
a Prefentation unknown to the Noniijiator j here the Nominator
fhall not be prejudiced within this Statute, &c. In this cafe B. Baron
declared his opinion,that the intent of the Statute was to eradicate all
manner of Stmonks \ and therefore the words are not if any Man
give Mony to be prefented, but they are, If any pefentfor Mony^
and the Jurors here found 20 /.to be given, and nothing for what it
was given, or to whom it was given \ for if Mony be the meed, a
Prefentation is void, and therefore if ^.5. be Patron of the C. of Z).
which is void, and a Stranger faith to me, procure the Prefenta-
tion for ^.and you (hall have 100 /. and he procured ^.to be prefen-
ted,here if the Patron had notice of the Mony given to me, this Prefen-
tation is void, but othcrwifenot: And in this Cafe without notice of
the Par(bn, the Admiliion.and all that enfued thereupon is void, by
reafon of the Simony in the Patron,and it is void as to the Parfon alio,
and if in this cafe we are not within the words of the Scatute,yct we
are within the intent clearly,&c. And Vanormitan (aith,that Simonia
tfi fiudtofa 'voluntas emendi'vel vendendi aUquidJptntuale^'velJpiri'
tualtannexum cum ofere [Hhfecjuente.Altham Baron was of thelame
opinion, and faid tliat the words of the Statute are, that if a Prefen-
tation be made for Mony, it (hould be void, and that the Khigmay
prdent tiiat turn s and therefore the want of privity in the Incum-
bent is nothing to the purpofe, as to the avoiding of the Benefice •,
but his want of privity availeth to excu(e him of being Simoniactts^
yet he is Simoniace fromotus^ and therefore the Prefientation is void,
and the King (hall have it by the exprefs words of the Statute 5 and
therefore as it feems, if in this Statute there had been an expiffs fa-
cing of the Interelt of the Incumbent, by reafon of his innoccncy,
yet fuch a favingof Interert had been void and repugnant, in reiped
that it was exprefly given to the King before, as it is in Nichols cafe
inPlowden upon the Stat, of i H.y. &c. And to prove that by the
Simony in the Patron the Parfon (liall be prejudiced, he vouched
42 E.3-/0/.2. ■ Snig Baron concuriM in opinion wirh the former,
and faid that as to the point of Simony by the Civil Law, it was
punifhable by Deprivation, and the guilt of the Patron (bould pre-
judice the Parfon, as to matter-of commodity in the Par(bnage •:,
and at the Common Law if the Parfon will plead fuch Prefenta-
tion he fhould be prejudiced, and here by the Incumbency the
words of the Statute will not be fatisiied, &c. Alfo it feemeth that
if y.S. hath an Advowibn, and A. parchafe the next avoidance to
the intent to prelent B. and the Chuxch becomes void^ and J. pre-
feuts
,54^ Of Simony.
fents J5. this is Simony by averment, as by good pleading the Pre-
^fentationof B. Qiall be adjudged void, &:c. T^^/e/ J accord mgly,
-as this Cafe is, here is Simony by the Civil Law, and the party had
-his Benchce by Sitmny, although he be not cognifant thereof. Se-
condly, admit here was not Simony by the intendment of the Civil
'Law, yet the Statute hath made an avoidance of the Benefice in this
•Cafe, although it be \\<dt Smony^ for the Statute fpeaks not one
■ word of Simony throughout the Ad, and yet by exprefs words it
doth avoid fuch Prefentations as this is:^ and as to the Civil Law fuch
-Benefice is to be made void by Sentence Declaratory, but it is not
void i^fofaBo, as it Icems in the Cafe where a common perfon was
confenting to the Simony ■■> but the Text of the Civil Law fays ex-
prefly,that the Church ought not to be hlled Corruptive or by cor-
ruption, and the Civil Law exprelfeth fuch a perfon as in this Cafe
by Simoniace p-omotus, and calls him who is Farttceps Crimints^
Simoniacm \ and he who is Simomacm^ is by the Civil Law depri-
ved not only of the Benefice tpfo fa5}o, but alfo is deprived to be a
Minifter, and adjudged guilty, in culpa & pxna. Tetrus Benefiel-
dus faith, That if a Friend give Mony to a Patron, to make a pro-
mife to him, &c. and the Incumbent pays it, fuch an Incumbent is
■Simomacus by the Civil Law i and fo if the Incumbent pay the Mo-
ny not knowing it till after the Indudion, yet he \s Simomacus \
^nd by him if a Friend give Mony, and the Parfon is thereupon
prefented , though the Parfon knew not of the Mony given,
yet heihall be deprived of the Benefice', and this diiference was
certified by Anderfon and Gawdy to the Council-Table upon a Re-
ference made to them by the King, touching the filling of Benefices
by corrupt means ; and this Statute of purpofe forbears to ufe the
vfox^ Simony, for avoiding of nic€ conrtrudlion in the Civil Law as
to that word, and therefore the makers of the Ad fet down plainly
the words of the Statute,That if any jhall he promoted for Mony, &c.
So that by.thefe words it is not material from whom the Mony
comes-, and then in fuch cafes for the avoiding of all fuch grand Of-
fences a liberal conltrudion ought to be made, as hath been ufed
in fuch caies, &c. for which and many other reafons mentioned in
this Report, he commanded judgment to be entred for the Plaintiff
t(a) Trln.7.]ac. (a).
ictheExche- (15.) Slv George Cory being feifed of an Advowfon, granted
quer, calvan ^j^^ ^^^^^ avoidance to his fecond Son, and died •, and after the Son
l?rPa%Zn <:orruptly agreed with J.S. to procure the faid J.S. to be prefent-
and K'tchin a- ed to the Benefice, and the fecond Brother knowing thereof, it
^alnft cdvm. was agreed that for the perfeding of the agreement, the fecond
J.ms Rep. ,Brother fhould furrender his Grant and Intereft to the elder Bro-
ther, which elder Brother not knowing of the faid corrupt agree-
ment,
Of Simony, 547
ment, Prefented the faid J, S. who was Inftituted, &c. all ftiall be
void, for he is here Presented by reafon of this corrupt agreement
'between the Patron who then was, and the Parfon, and the elder
Brother was only ufed to convey a bad gift by a good hand, and
all had reference to the corrupt Agreement, with the AfTentofthe
Patron who then was (b). (P) ^^ofe unA
(16.) The King brought a Qjiare ImpeditzgzmR the Archbifhop vouThTd ^by'
of Canterbury , Sir Jsbn Hall, and Richard Clark , for the Damport in
Church of M. znd dcchxe^i thzt Richard JVhite was feifed of the CahartsCtk
Mannofi to which the Advowfon belonged. And the 6 Jac. by ^gainft K.it-
Indenture, he covenanted to ftand feifed to the ufe of hirafelf and ^"p ^'^"''^
his Wife for their lives, and to the heirs of Rtcbard White, And
after White Prefents one Boynton^ and dies, and his Wife Marries
with Sir John Hally who the firft of Jtme^ 6 Jac. by Deed grants
proximam Advocationem to two,to this intent,that he might receive
offucha Parfon, that he Prefented, all mony as (hould be agreed
between Grantor and Grantee : And that this was done Eointon
lying in extremis. And then the 26, Jan. \6 Jac. there was a
corrupt Agreement between Sir John Hallznd one of the Grantees,
that for 200 /. to be paid by the Clerk Blundel., that the other
Grantee (hould Prefent him. And the firft of February Blundell
pays Sir John Hall the mony, and the fecond day he was Prefented,
Mituted, and Inducted accordingly. And that upon this it apper-
tained to the King to Prefent : The Bifhop pleads but as Ordinary :
Sir John Hall makes a title, and traverfes the corfupt Agreement :
Tlie Incumbent Pleads by Pioteflation that there was not any oor'-
rupt Agreement, as it was alledged, and not anfwers whether the
mony were paid or not •, but that he is Parfon Imperfinee of the
Prefent ment of But 16 Jac. after iiich an Agreement (fcil.)
17. Feb, he was Prefented i>y the Letters Patents of the? Kiiig 16 his
Church, and never anfwas to the Simony. And it was held by the
Court to be naught i, and only pleaded to hinder the Exeaition be- Pg* ^ ^^''
fore the Jufticesof AlFize, if the trial went againft the Patron (c). ^^) The King
And further in that Cafe between HalJ and Bltmdel^ it was faid by againft rhc
I!)avenport:,xYai this Parfon being Prefented by Simony,is^difabled to Archbifhop^af
this CHurch for ever i and cannot be Prefented to this Church again; 1'*!J^'^?''d' ' '^
lis it was adjudged in my Lord Wind (en Cafe. But it was faid by*
Richardfon if he had (a^id^abfy'-, ^or,That he was ift ex Vrafentatidfii
of, &:c. it iiad been gcod enough, which was granted. Henden^
two Exceptionjl^ad been 'taken, (i.) That the Incumbent doth
not (hew what Eikte or Intereft the King had to Prefent him ;
which doth not need, if the King brought a Quane Impedit^ then
it is a good anfwer to fay, that he is hi of his Prefenting. But if it
be brought by a flrang^cr, . then he ought (o fhew the title in his
M m m m Prefent-
548 Of Simony.
Prefeutmenr. And he alledged the Statute of 25 E. 3« which en-
ables the Incumbent to plead by Writ of the Law. 41 Eliz>. Thers
was a Quare ImpeMt brought for the Church of DaneH •■> a Prefen-
tation by the King was pleaded, without making a title, and it was
admitted good. And in many Cafes it is more fafe not to make a
title. (2.) Becaufethat he pleaded a Prefenration by the King, he
isdifabled. As to that hefaid, that before he be convidlcd of Si-
monyj he may be Prefented. Bat b^' Crook in Satbers Cafe, that
if he be Prefented before convidion, yet it is a void Prefentation.
And it was lo agreed by the Court, and they refolved the Plea was
nought^ becaufe he anfwers nothing to the Simony •, for the Pro-
., , teftation is not any anfwer : whereforeTudgment was eiven for the
Hauyi Repf ' . f ' 7- F- Libels in the Ecdefiaftical Court for Tithes, and a Prohi-
bition was prayed upon a Suggefiion that he came to the Church
by Simony. By the Court, a Prohibition ought to be granted
upon a (urmife only, that he came to the Church by Simony. Then
Henden (hewed, that it was found by Verdidt in the Kings Bench,
that he came in by Simony •, and upon that Verdidl ^here was a
Decree in the Court of Wards accordingly. And then the Court
inclined to grant a Prohibition. And the Cafe here was, that K
being convided of Simony, the King Prefents Claptborn, who was
Admitted, Inftituted, and Induced : And afterwards he takes ano-
ther Benefice above the value rf 8 7. by which the other was void.
Yet by the AfTent of the Lord Wwdfor Patron, F. continued in Pofr
i,^ v.^h.. ^^ffion- And by Richardfon, he cannot be any way removed until
Sfefby. Lapfe incur (.).
(18.) It was faid by the Court in Sir John TafchaU's Cafe
againft Clark upon Evidence, that if the Patron Prefent one to the
Advowfon, having taken an Obligation of the Prefen tee, that he
fhall reiign when the Obligee will, after three Months warn-
^. i"8' ^^^^ ^^^ ^ Simony within the Statute of 21 Eltz.. cap.i6>
IT^i.'sirj^b'n ^'^'^ ^- ^^^^^^ ^^ ^ Mannor with an Advowfon Appendant:
i>a!sha;i verf. ^' comes to J. and promifes that if he would Prefent him. e^c. af-
curk;. Noy\ ter the death of the now Incumbent, he would give him Seventy
^^B. pounds, to which he agreed. And upon that it was agreed be-
tween-them, that the .next Avoidance {hall be granted to 5:
Sec. the. Incumbent dies, 5. Prefents 5'. who continues Incumbent
from 27 Eliz,, until the ytb of Kmg Jaryies, T\\tnA, grants the
Mannor cum prtinent. to Winchcomhe m Fee, 5*. the Incumbents
dies, 7 Jac. And the King Prefents PuIIeshn by the Title oiSimor
«/; And Wwchcomhe brought a Quare lmfedn\ and adjudged that
it doth not lie. In. which Cale two points were refolved : (i.) That
that
Of Simony, 54^
' that is Simony j Note, that in the Stat, of 3 1 Eliz,, there is no word
of Simony > for by that means then the Common Law would have
*bcen Judge, what (hould have been Simony and what not. Secon-
ly^ although that the prochein Avoidance might be bought and fold
bonafidci without Simony, yet it was (b granted to B, to perform
the corrupt Contrad, 2 Jac* was 'vouch'' d^ that if the Father ^^^rS '
purchas'd the prochein Avoidance-, and Prefents his Son after the V.'iO 'a-n
death of the Incumbent, that is not Simony, and that it was ac- '^^ '■'•.^"'
■cordingly judged in 42 and 43 EliZcr* It was Smith and Shelborns
Cafe. But by Hubbard.^ that if in the grant of the prochem Avoid-
ance it appears that it was to the intent to Prefeiit his Son or his
Kinfman, and it was done accordingly, that is Simony; In the 'jtb <
Jac. In the Exchequer Calvert againll Varkmfon. The Coufin of
C. being Clerk comes to the Grantee of the prochein Avoidance^
and promifes him Twenty pounds, and Twenty pounds per an. ii
he will prefent C. to the Church quando, &c. C. not knowing any
thing of the Contrad, is Prefented accordingly. This is Simony,
a Fortiori in this Cafe where S. himfelf who was to be Prefented,
.was party to the firft motion of the Contrad for Prefentation.
(2.) It was Refolved, That the death of the Simoniacal Incumbent
doth not hinder but that the King may well prefent, for the Church
was never full as to the King, and that Turn is preferved to the
^; King by force of the Statute, yet it feems the Church is fo full
that a Stranger may not Prefent for ufurpation i for it is not like
7 Rep. 28. where the King is to Prefent by Lapfe. And there are
many Cafes wherein the Church may be full or void in effed, when
there is a Simcjiiacal Incumbent. Huh hard faid, That if A* be obli-
ged to Prefent B. &c. and he Prefents by Simony, yet the Obliga-
tion is forfeited, &c. The rightful Patron may have a Quare Impe-
dit after the Six months againft the Incumbent of an ufurper, that
is in-by Simony. And by the Court, to fay the Church was full
for Six months, is no Plea, when he is in by Simony. Warburton
and Hatton cited Dodor Hutchinfons Cafe i o Eliz,. A Parfon pre-
f rs his Bill for Tithes, the Parifhioner pleads that he was Pre-
fented by corruption, &c. and by Simony, and a Prohibition was
granted, notwithftanding that the Parfon pleaded Pardon of the
Simony by the King, and it feem'd that it was now triable by the
Common Law. Note 7 H.J.^J. and Alich. 40 & 41 EliZ* Gre-
gory againft Oiddhatn. In debt upon an Obligation to perform cer-
tain Covenant?, which in truth were Simoniacal Contrad:s,and the
Plaintiffs recovered, for it v.-as faid that that Obligation is collateral,, (g)finchcome
and the Lzw does not at all look upon or take notice of the Simony, ^^^^ " ^''
eo nomine^ for it is not once named in the Statute, but only corrupt ^Tgy^i Rep.vld.
giving^ 6cc. (g), dift. Cafe.
M m na m 2 (2 o.) In
550 Of Simony.
•Si ' r - ____— ___--.^-_-— —————— ————— __
(20.) In debt upon an Obligation, it was faid that it was made
iipon a Smoniacal Gonfradl for Prefentation to the Church,with the
cure of Souls i and fo it was for Simony. All that was averr'd the
Court held to be matter dehors^ and not appear 'd within the Deed j
and for that the Plaintiff had Judgment. For no fuch averrment is
rib) Gfigory given by the Statute (h). Note, the Statute doth not make the
verf. olAtn. Bond, Promife, or Covenant void, but the Prefentation. And fo ad-
ms Rep. judged, Tafch, 40 Elix,. Rot. 1745. C. ^. Cafe of Gregory againft
Oldbury. Co. hfi. far. 3. caf, 'Ji,
(21.) If an innocent Incumbent be in by a Sitnoniacal Qowtxdid:^
to which he was no way privy, he is not' SimoniactK though Simo-
mace fromottts ■> and as he is not Simoniacus^io neither Verjurus^ioi
Simony feldom goes without fome kind of Terjury. An Adion was
br^ight upoh 5 Elix,. for Perjury brfore one of the Mafters of Chan-
cery^ who had power to take an Oath. Adjudged quod nihil cap. per
bre've* And tiie reafon waSjbecaufe he does not (hew what the Oath
Maflers of ^vas in Court. By Wbitlock they were called Mafters of Chancery.,
lb caUcd. ^ ^ becaufe they were Priefrs and Clergy- men in ancient time: and that
was the reafon that the Lord Chancellor had the difpofal of the petty
Offices of the King, for the Preferment of thefe Clerks: that was
alfo the reafon that they could not Mafry until they were enabled by
{i)LuHf^tT{. the Stat. &c. 0).
Holland. No.y''. (22.) Parfon L. was convented before the High Commiflioners,
Rep* and they would put him to his Oath touching Simony (fuppoling
it to be committed by him.) And a Prohibition was granted, that
none ihall be compelled to accufe himfelf upon his Oath •:» where he
b to incur a temporal punifhment at the Common Law, or a tem-
poral lofs, as in that Cafe of his Church ; So for Ufury. Noic,Dyer
175. in the Margin. And Cock Chief Juflice, 'vouch'' d 10 Eliz,.
Smiths Cafe, an Attorney of that Court. The High Commiflion-
ers would put him to his Oath, for hearing Mafs. And a Prohibiti-
on was granted, for by tliat he is to lo(e One hundred pounds
by the Statute, and a Prohibition was now granted by the Court
(^) Parfon (i>
LatttrsCik (2 3.) If a Stranger, having no Title, prefen^ per tort, to a
.v^J's Rep! ' ^^^'^^h (being void) Simcniacally, and Six months pafs, yet the
true Patron may after Prefent, for the Statute hath made fuch Pic-
fentation, Inftitution, and Indudlion void, and fo he is no Incumbent,
lic^ ' "^'^ ^^ ^^^ Church full (l). Likewife, if a Man be Prefented, In-
ftituted, and Inducted by Simony to a Church , although it be
void as to the King, and as to the Pariftioners, yet it is not void
c^mbs^olit as to an ufurper, for he that hath no right (hall not Prefent thcre-
HVRep.327« ^^f<^CwJ.
C24JTQ
Of Simony. 551
^24.) To avoid the deteftable Sin of Simony ,becaure buying and
* felling of Benefices is execrable before God ^ it is therefore ordained
by the Injundions of King Ed. 6. An.i 5^7. That all fuch perfons
as buy any Benefices or come to them by fraud or deceit, (hall be
deprived of fuch Benefices, and be made unable at any time after to
receive any other Spiritual Promotion. And fuch as do fell them, or
by any colour do beftovv^ them for their own gain or profit, (hall
lofe the right and title of Patronage, and Prefentment tor that time,
and the gift thereof for that vacation (hall appertain to the Kings
MajefiyC»). («)Vid.Bifliop
(250 The Oath of-?/wo«)'isasfolloweth5'V/2i.-7A.B. dof-wear sparrow's Col-
that I have made no Simoniacal Tayment^ ContraB^ or Vromife^di- 'j^^°" ^ti^*^'
reBlyor indireUly by my felf, or hy any other to my kno'u^edge, or qjj^^^JJ^..
"^ith my confent^ to any perfon or perfons 'whatfoe'ver for or concern- py,
ing the procuring or obtaming of the Refhry or Vicarage of h, in the
Diocefs 0/ London. Nor iviU at any time hereafter perform crfatisfie
any fuch kind of Payment^ Contra^-, or Prcmife made by any other
without my knowledge or confent. So htlp me God, &c.
(26.) P. Parfon oi R. in the County of W. fued for Tithes in the
Eeclcliaftical Court before the Ordinary, and the Defendant here
pleads that the fame Parfon was Prefented upon a Simoniacal Con- p^^^^ ^^^^.
tradi-, and for that his Prefentation, Ad million, and Inftitution was Brmnl. Rep. •
void, by the Stat* of 3 1 Eliz>. the Simony was for that it was par. 2.
agreed between the faid Parfon and another that was Brother to the
Bilhop of L. and C. who was Patron of the fame Church ; that if
he (hould proaire three feveral Grants of three fcveral next Avoid-
ances, to them feverally granted, to furrender their faid feveral
Grants, and procure the faid Bifhop toPrefent him when the Church
became void (it being then full of an old Parfon being mortally fick)
that he would make to him a Leafe of parcel of the Tithes of his
Redory : and the Brother of the faid Bilhop procured the faid
Grantees to furrender their feveral Grants accordingly (the Church
being then full.) And alfo after when the Church became void, he
procured the faid Bilhop to Prefcnt him according to the fir(\ Con-
tradjand then the faid P.made a Leafe to him of the Tenths,and after
fued others of his Neighbours in the Ecclcfiaftical Court for Tithes, .
who pleaded die faid Simoniacal Contradl i and here Nichols Ser-
jeant fuggeRcd, that the Judges Ecclefial^ical would not allow of this
Plea there i but the Court would not give credit to tliis fuggeiiion i
but faid, that if the Ecclelial^ical Court make expofition of the Stat,
of 3 1 H. 8. againft the intent of it, that then they would grant a
Prohibition,or if they Owuld deny to allow Of this Plea i and for that
advifal him, that his Client might offer this Plea another time to
them, and if thev denied to grant that.tbcy would grant aProhibition.
(27-)
^ 52 Of Simony,
C27.) The Patroii of a Benefice may befued in the Ecdefiaftical
Court for Prefenthig his Clerk (who is alfo indudted) by Simony,
for the Statute of Simony takes not off the Eccleliaftical Jurifdidion
Xo\ Hill. II i'i'y^ punilhing the party profaluu afuma (0). And where thePar-
Jac. B, R. Sir fon is party or privy to the Simony, he Ihall be perpetually difabled.
will, Boyers ^\(q if mony or other reward be given for the Prefentation, be it
CafcRefolvcd. ^-^j^ ^^ without the agreement or knowledge of the Incumbent,
(t>) Paf h ^'^^ ^^ ^^'^ always difable him from enjoying that Church (p). In
Jac. B. ?{'.Lap. JVdfons Cafe againft BraJjhaw it was faid by Doderidge Jultice,t1iat
thorna Cafe, Simony is a Contract either with the Patron to Prefent, or with
•Bath verf. Fot- the Ordinary to Inftitute^ and if it be not one of thefe it is not
«ar 2 ^^* Simony by the Common Law •, Stmcniacm is he which makes fuch
a contrad: or promife, and he is difabled to take any other Bene-
fice, and (hall be deprived of the Church in which he is : But Si"
iKoniace fromotus^ is he whofe Friend (without his privity or know-
ledge) gives mony to the Patron or Ordinary for his Prefentation or
Inltitution, and he fhall be deprived of the Benefice to which he is
corruptly promoted, but not incapable of any other, nor of that, if
he fliall have it duly again ; and every corrupt Contrad for a right
(^)Hill.2iJac. ^oPj^efent, is SimonyC^).
]^oc. io58.^;7- ^28.) In a Prohibition,the Cafe was,/^. feifed of the Advowfon of
fan verf. B^ad- the Church of B. the Church being void : C. before the General
ffefl».Rol.Rcp. Pardon 3P Eliz.. contraded with him for the Avoidance, who for
ICO /. granted it to him 5 and he by colour of this Grant Prefented
his Brother to the Avoidance : This was held to be Simony in the
Grantee the Incumbent, although he was not privy to the Simony
at the firft ; and Simony was there defined to be Voluntas five djt-
deriutn emendi vcl 'vendcndi (piritualia vel Q)ritualibm adbarentia
& ^ Elf* B^a '^^^ annexa (r). Or thus, njix.. The Church being void,5, contiaded
Bxktr andKo-* ^'^^ ^^ Patron for 180 /. to have the Prefentation, and thereupon
.gtrs Cafe. Prefented W. his Brother,who knew nothing' of the Simomacal con-
Cro.par. i, trad, till after his Indudion, notwithftanding he was deprived in
the Ecclefialiical Court, becaufe he was Siwomace fromotm--, and it
was held in this Cafe, that if an ufurper Prefent by Simony, the
Mon Cafe Clerk is punilhable in the Ecclefiafiical Court for the Simony, al-
^^^^' tliough the Patron doth recover the Advowfon and the Pielcnta-
tion.'
SR^c'^^'''' ' '^^^'^ ^" *^ Cafe. between the King and the Bifliop of Mr-
ro. pa.2. ^jjj^ and Sakery and Cole^ It was faid by Coke Chief Juftice, that
if a Church be void, and a Granger without the privity of the After-
Incumbent, procures the Pation to Prefent him upon a Simcniacal
Contrad, although that the After-Incumbent be not privy to the
Contrad, yet he comes in by Simony \ and fo it is, where the
incumbent makes a Simoniacal Contrad with the Friend or V\-ife
.of
Of Siviony. 555
of the Patron, and the Patron knows not thereof, and the Incum-
)bent be Prcfented by the means of him with whom the ContracSt
was made, it is Simony within the Stat, of 3 1 £/;&. and the King
fhall Prefent.
(30.) A man who was Pirefented by Simony, Libelled in the
Ecclefiartical Court for Tithes* The Queftion was, whether the
Simony (hould be tried in the Ecclefiaftical Court, or by the Com-
mon Law •, the Point was not refolved. Note there Simony is de-
fined to befiudiofa -voluntas emendi -vel 'vendendi Spiritualia vel ^ . * r*
SflrituaUbus annexa^-^—iwA it is cither Mentals vel Cionventualisy
ot both which the Ecclefiaftical Law may Judge, but the Temporal
Court only of Conventual Simony.
C3 1.) In Sir William Boyers Cafe for a Prohibition to the High
CommiiTion Court, for their examining there upon Gath in Cafe
of Simony, it was faid by Coh Chief Jufiice, that Simony is worfe Hill, n Jae^
than Felony i. it is an enormous offence, if mony be paid, for to ' ^**^/*'■°
Prefent one to a Benefice, although it be not paid to the Patron, nei-
ther had he any knowledge of it, yet the Incumbency for this (hall
be avoided, and the Patron alfo fhall lofe his Prefentation prt? bac
'vice. The Statute of 3 1 Eliz. cap, 6, is fo flrongly penn'd againft
the Incumbent, that if the Patron be privy unto it, he fhall alfo be
punifhed : an Adion of Debt was brought in C. B. the Defendant
in Barr pleaded, that the ftme wasentred for payment of mony for
Simony , yet the Bond was held good h and we are not to take any
notice of Simony, this being punifhable in the Ecclefiaftical Court,
and if they there meddle only fro falute Anima^ they are notthcii
to be Prohibited i Otherwife it is, when they will there examine the Vff] j
perfon upon an Article tending to the Title of the. Patronage, there,
in fuch cafe a Prohibition lies.
C32.) In Cafe of the King againg 'Zakar and others. It is faid that
if one bePrefented by Simony, and the fame perfon afterwards ob-
tain a Prefentation from the King, this is not good, for he is now a Pafch. 15 Jac»
difabled perfon to take this Benefice, he hath a Leprofie upon him ^* ^' ^"If^f*
by the Statute of 3 1 Eliz,, caf.6. Like unto that ofGehazi. And ^^^' ^'
Coke Chief Jufiice there declared, that no^withftanding the King
faith, that the faid Incumbent fhall continue,- yet the King lliall have
the next Prefentation.
C3 3. ) The Lord Windfor feifed of an AdvowfoH,grantcd the next
avoidance thereof to Dodtor G. the Church void, R, F. the Fathet
of H.F. dealt with Dodlor G. to permit the Lord j^m^r Pafch. 17 Jac.
to Prefent H.K who knew not of the Agreement, who was Pre-- ^^J^^'^^^^^^'^^^J!'^'^
fented, lnflituled,and I ndudled accordingly. JR^y^/fg^, That this qjq^ par. 1/
was Simony, and that the King was to Prefent by the Statute of
31 ElfTU^ The King Prcfented J, ^.^who was InlUtuied and lu*
dudted.
554 Of Simony,
duded. \R, K the Father fued J, S. before the High Commiffioners
for MifdemeanorSj and procured him to be deprived, and Ten day^
after procured a Grant of the next avoidance to J. N. and after the
deprivation within Ten days procured the faid J. N. to Prefent the
iaid H. F. &c. Kefohed, that the faid Prefentation of the faid H. F,
was meerly void, and that he was a Perfon difabled by the expreis
words of the Statute to accept of that Benefice.
K«f»y and (34-) for a Prohibition tipon a Suit for Tithes, fuppofing the
, mntyvorth'i Parfon had come in by Simony, and thereby the Church void, and
Cafe— the Tithes not belonging to him : It was Refohed by the Court, a
par. T. Prohibition could not lie, for that Simony might more aptly be tried
in the Ecclefiaftical Court.
Trln di Eliz OSO The Incumbent of a Church being fick, the Father Con-
B. r] Smith ' trads with the Patron in the prefence of his Son, for the next avoid-
and shilborne. ance for the Son, and agreed to give him One hundred pounds,'
Cro. par. i, f ^^ Grant is made, the Incumbent died h the Son is Prefented, In-
Cafe^22^9. flitutcd, and Induded i being fued for Simony in the EcclefiafiicaEl
Court, he prays a Prohibition, and allcdges the General Pardon
3^ Eliz, which is after the Inftitution and Indudlion, wherein Si-
mony is not excepted. In this Cafe it was Rtfol'ved: (i.) That al-
though the Pardon difcharges the punifhment of Simony, yet he
may be examined of it by the Ordinary, and deprived for it : But
it was (2,) Refolved in this Cafe, there was no Simony, for the
Father might buy the next avoidance and Prefent his Son, and it is
not Simony in any to buy an Advowfon i therefore the Prohibition
was granted.
Mich I Car' 0^0 In Debt upon an Obligation to perform Covenants, That
B.R. B)>f«and ^' ^' ^0" oilf* B. (hould Marry J, the Defendants Daughter : In
[Mannings Cik. confideration of which Marriage, the Defendant amongft other Co-
I Cro. par. 3. venants, Covaiantcd, that he would procure the faid 7'. B. to be
Prefented, Inftituted, and Induded into fuch a Benefice, upon the
next avoidance of the Church, and the breach was afligned, for
non performance of the faid Covenant, in procuring him to be Ad-
mitted, Inflituted, and Induced : It was demurred to by the De-
fendant, becaufe the Covenant is againfl Law, being a St?noniacal
Agreement, and a Bond for performance thereof is not good. Re-
folved^ if it had appeared to have been, that in confideration of the
Marriage of his Son, he would procure him to be Admitted- and
Inf^itiited into fuch a Benefice,that had been a Simoniacd Contrad'^
and had avoided the Obligation \ but here this Covenant is not ia
Gonlideration of the former Covenant, nor depending thereon, but
. ic is a meer difiind Covenant of itfelf, and independent upon
the forn:ier \ and without a fpecial averring or fhewing that it was
di. Simoniacd Contrad,; it fhall not be intended, but it may be a
Covenant
Of Simony. ^^c
Covenant upon a good confideration. And it was adjudged for
^he Plaintiff.
('3 7.) In the forefaid Cafe of the King'againft Zakar alias Seeker
and others, it was faid by Coke Chief JulHce, that it is put for a Rule
in Grf ^'s Cafe, that if one prefents Sirnoniace to a Church of the Bulft. ubifupr.
Kings, and the King afterwards prefents, jure Smoniace, this is a
void Prefentment, becauie he hath miftaken his Title, but he ought
to Prefent y«re Vatronatus^ not rat tone Sirnoniace frafentatus. And
as to the difability of a Sintoniacal perfon by the Statute of 3 1 Eliz,.
C.6, Four things are to be obfcrved upon this Statute, (i.) The Pre-
(entation to be void. (2,) The King to have his Prefentment. (3 ) A
Fine to be impofed by way of Forfeiture. (4.) The Party prefented
to be utterly difabled. For where there is matter of Simony, if there
be Fraud in the Incumbent, ch: if mony be given for the Presentati-
on, though it be unknown to the Incumbent, to this let the Patron
look J the Incumbent (hall be removed. In this Cafe the whole
Court agreed clearly in this, that the Parfon party Prefented by Si-
mony, the Prefcntation is meerly void, and that the fb Prefented is
utterly diabled for ever by the Statute of 3 1 Eltz,. c. 6. to take the
fame Benefice, to which he is Prefented by Simony, and that he is
incapable to have another Prefentation to the fame Benefice.
C38.) The words [Frefent or Collate'] in the Stat, of 3 1 El. c.6.
are not intended (lays the Lord Coke ) only where the perfon Pre-
fenting or collating, hath right to Prefent or collate, but alfo where
any perfon or perfons. Bodies Politick or Corporate, do ufurp and Co. Inft. pj. 3,
*have no title to prefent or collate s and that foit was adjudged in cafe cap.Si.
where the ufurpation was to a Church of the Kxn^.Sed quando Vrae-
^ntatio ^ Jus T atronatus funt Tempralia^ Qu^ritur qmmodo Jit
Simoniaper donum pecuniae pro tllis ? Rejpondcndum efiyQmd jus
Patronatus d^ Prafentatio dicuntur Spiritualia^refpe^u rei^ad quam
frafejitatur^ma Spiritual^ ejl. Vide Li ndw.^rd!^. de Jurejurando fo»
80. He fays further, that there is a diverlity between a Piefentatioii
or Collation made by a rightful Patron and an Ufurper, For in the
Cafe of a rightful Patron, which doth corruptly Prefent .or Collate,
by the exprefs Letter of the Statute the King fhall Prefent : But where
one doth ufurp, and corruptly Prefent or Collate.there the King fhall
not Prefent, but the rightful Patron : For the Branch that gives -the
King power to prefent, is only intended, where the rightful Patron
is in fault ; But where the rightful Patron is in no fault, there the
corrupt a<5t and wrong of the Ufurper maketh the Benefice, &:c. void,
but taketh not away the Lawful Title to Prefent from the rightful
Patron. And (o it was adjudged Mich. 1 3 Jae. in Quare Impedit^
between the King and the Bifhop of JVonWc/j. Ti&o. O/e, and iio^.
Seeker, for the Vicarage of Haverel in Suffolk. ••'•'"
N n n n (^p.) The
55^ Of Simony.
(39O The Canon Law looks upon Simony as a kind of Herefie,
imo Simoniacos veluti frimos (^ fneci^uos Hareticos : Rehuff.de »?i-
nton.in Re/ign. nu. 12. and excommunicates all 5/wo«;<«c^j totha!
degree as not to be ahfolved but by the Pope himfelf^nor by him till
at the point of death. — extr* ibid, cum Jit deteftabile de Simc
nia. And are iffo jure deprived of that Benefice wherein the Simo-
ny was committed: — extr.ihid. And this holds true as well where
the Simony is only Conventional or by Compad, as where it is real
^ per fiecuniam numeratam \ albeit there are fome DD. who will
not agree that a meer Conventional Simony (hould incur a Depriva-
tion, although they contelt it not as to the real Simony, viz,, cum
ali^uid datur. CaJJ'ad. in Dec if. 5 . de Co?tl^. But in tlie Council of
Con(tance ( touching this matter ) there is nothing faid de datione as
to Deprivation, but only to Excommunicatiou ; whether therefore
it be a Conventional or a Real Simony^ a Prcfeutation or Collation
in confequence of either is ipfo jure void and null, according to that
Law. Rebuff, ubifup. nu. 10, It is. worth an Afierisk to obferve,
what an excellent expolition Rebufft^s the Canonift to this purpofc
makeson iV/^f/6.2i.i2. ( polfibly more like a Lawyer than a Di-
vine) he fays that by the fellers oi Doves-, is there meant, fuch as
endeavour to make fale of the Saaed Impofition of hands : And
by the Mony-Changers are intended fuch as feJl Ecclefiaftical Bene-
fices ; And pleafing himfelf in this conceit, breaks out into a Piece
of Eloquence, viz,. Nuf^uamreperitur ( quod fciam) Dominum
tanta feveritate, tam difiriEla cenfura Jufiitiie peccatores corri-
ptifey ncn folum eloquio increpans^ veriim etiam faBo flagello
de funiculis verberans omnes eliminAvit de T'ernplo \ and thence
molt infallibly infers, that cur Lord and Saviour Jefus Chrift the
Pvedeemer of Mankind, did caft out of the Temple all Simonia-
cal perfons, and fuch as fell and make Merchandize of EcclcCaftical
Benefices. • Rebuff, de EleB,. derog, lit. d. in verb. Non-
nullte.
(^o.) This moft deteftable Evil of Simony , may polTibly
(though rarely) be found in Ordinations \ yet it is mofi: frequentely
negotiated in Prefentations ( Roman Elections and Populations 3
Collations, Refignations, and Permutations of Ecdefiartical Bene-
fices. It is fuppofed that it hath it's denomination from Simon Ma-
gus^ for thefe three Reafons, (i.j Becaufe he was the firrt, that
in the New Tellamcnt we meet with, that was ever infed:ed with
that Crime. (2.} Becaufe he was the Superlative OiTender in this
kind above all others that were anciently guilty, tl^reof, for ( as
. traft Augujtme faith ) he would buy the Holy Ghofi on ■ purpofe to
In Johan. ' * ^^^ ^h^ -^^^Z G/j(^/-. But thofe that went before him, fold on-
Numb. 22. ly fome created Spiritual thing, as Balaa.?n would have fold his
Prophefie >
Of simony, ^(-^
Prbphefie', and Gehazi Servant to Elifijay that health which he
^obtained from a Divine Power for Naaman the Syrian. C3.) Be- ^ '^'"S* ^5*
caufe Simon feemed obftinately to perfift in fuppofing this thing
to be Lawful, and fo therein he thence became a Heretick, and
as fuch is generally condemned by the Fathers. The Definition
which Vanormitan makes of Simony feems defedJ-ive according to
Leffius and other Modern Authors i Vanorntttan defines it Tasafore-
faidj to be ftudiofam voluntatem entendi vel vendendi aliquid Spi-
rituale^ 'vel Spiriiuali annexumy opere fuhfecuto* But to make the
definition adequate to the thing , there (hould be added to it
C pretio temporali ) for it is fuppoied, that if one Spiritual thing
be given for another, in that Cafe it is not properly Simony, be-
caufc the Turpitude of this Evil confifts in this, that Spiritual
things, which in their own Nature are ineftimable, are here efti-
mated at a Carnal, Humane, or Temporal price, which value
or price the Law makes threefold, viz,. Pretium muneris^ as Mo-
ny, or ought clfe that may be fold for Mony : Pretium Lin-
gu^y as undue and undeferved Praife, or immoderate Flattery ;
Pretium Ohfequij , as fome (ervice done, or to be done for the
Patron in matters Temporal, or as when a Chaplain (erves a
Bifliop domeftically without^ any Stipend or Sallary , or remits
it on purpofe that a Benefice may be beftowcd on him j which
by the exprefs Letter of the Canon Law is no other than Si-
mony, c.funt nennulli. i.<j.i. So likewife as to the Pretium Lin-
gua, that Law is exprefs againft it. That Rogans pro indigno ut
Beneficium obtineat, Simoniam committit > diB. c. funt nonnullu.
& c, tuumy de at at. & cfualit. As to that Mental Simony which
Navarr.cap. 2^.nu, 102, znd Cajetan alio, verh. Simonia, and
others would have to be one Member of the Diftindion there-
of, it feems to be wholly refcindcd by the two laft words of
the Definition, opere fuhfecuto. It is alfo the more received Opi-
nion among the DD. that to refign a Benefice into the hands
of the Ordinary in favour of a Third Perfbn, with this Claufe
(non aliter nee alias ) is Simony ■•, the Reafon they give is, t^uia
omnis paSlio in fpiritualibus Simoniam continet. cap. Jin. de PaBis.
& cap* ex parte. I. de Offic. Delcg, To conclude, the Canon Law
in this point of Simony is of a far wider extent than the pradicc
with us is capable of comprchenfion j remembring therefore
we are in an Abridgment, we may abufc the Reader in per-
plexing him with Exotick Queftions in reference to this Sub-
jed. As whether every Sale or Exchange of Spirituils for Tem-
porals be Simony ? Whether an Exchange of Spirituals for Spi-
rituals be Simony? Whether there be any Simony Jure Hu-
mana^ and by what Contracts it may be difcerned ? Whether
N n n n 2 the
j-t-g Of Simony.
the Pope may be SimoniacaL Q^ Whether it be Simony tp give
Mony for the Sacrament upon a Death- Bed ? Whether it be Simony ,
in the Ordinaries or their Officials to take Mony for Letters of Or-
dination under Seal ? Whether it be Simony in Ecclefiafticks to take
Mony for Sermons or Theological Dodrines ? Whether it be Simo-
ny to rellgn a Benefice, referving a Peniion out of it ? Whether it
be a Simony to refign or beftow a Benefice upon Truft or Confi-
dence > With divers other fuch Queftions in the Canon Law,relating
to this Subjcdt, the Solutions whereof are not of any moment to us
who are out of the Pope's Dioccfs,
CHAP.
S5P
CHAP. XL
Of Blafpliemy and Hercfie.
1 . PFhat Blarpemy is, and 7vhence fo called.
2. The feveral funifliments inflidled on hhCphemas,
3. How many ways Blafphemy may be.
4. What Herefie is > a Conje^ural derivation of that word HsxeCwy
it is Threefold,
5. What fhall be accounted Herefie i what the Lollards of old lyere^
and^vhy fo called.
6. In whom the JurifdiBion of Herefie froperly rejtdes,
7. A Heretick conviBed, and fo ferjifiing, whether according tv
Law combuflible j The reafon of that fevere Law i Hcrclie ^
Lepra aiiima?. '
■8. An Alphabetical black Catalogue of Hereticks h their Errors^
Herefes and Blafphemies ; and the times wherein they pfier'd
the World.
$, A Catalogue of the Jewilh Hercticks,^«f not in any Alfbaheticd
manner as the former.
(i.) «r% LA&PHB MIA, "^Ko^^Yiixi^, 7^^. -w ,«AfW 37)y ^r
•-i. y-nvi^uod UJai famam !iM<rm¥'^v is as it were <3a Wtti'
B J TjjV ?»if*Mf J to hurt anothers fame or reptuation : Suidof
mterpreteth /SxaV^ji^©- e «f &i.h Vi^ya^^mi one who iirjureth God
with contamelious words, which is when men<3etradt from God
the honour due unto him, or attribute any evil to him. Blafphema-
re.efitaeite'uel exprejje, -verbo njelfcr^fto, contra Deum alj^Mtd
eontumeliofum dicere. Na'var'Caf.l2iHu,l^. Blafphemia efi ixtjim-
ofa in Deum loctttio, vel contumelia in Deum verbo irrogata. Up-
iib.2.de Blafp. This is cognizable in the Ecdeliailical Jurifdidioii,
and by the i op Canon of the Ecclefiaftical ConPatutions of the
Church of England, is among other notorious Crimes >to be cer-
tified into Ecclefiaftical Courts by way of prefentment, in order .to
punilhment according to Law.
(2.) This Crime cf Blaffhemyvi^s -fo odious to the Emperor
Juflmian, that he ordained, that the Blafphemer (hould undergo
ftltmumfuppliciumM puni^ed by the death,for he made it capital
Auth. Jn!Uuxur. Coll. 7. By the Eccleiiai^ical Laws of Kcneth ^^.^hu'
'K\ngo( S cot s>An.^^o It is provided, tnat he that Blalphemeth gp^i^. conciL
ihall have his Tongue cut out {a). Blafphemy is fpeaking Treaion ^a. 840.
5^o Of BI.afphe??iy an J Here fee.
againft the Heavenly Majcfty, the belching oat of execrable words
againft God, whereby the Diety is -teproached. BaUus fays thaV
• Blafphemy is a kind of Herefie. Bald.in L. Qui accufationem CQai
Accuf.non pJJeSoi which a Lay-man is Anathematized by theChurch
of God, and -a Glerkdepofed from all Ecclefiaftical Orders. Can. fi-
ejHis per caf ilium. 22.q,i. The Canon Law feems not fevere enough
in the punilhing of this Grime,probably for that they of the Roman
Church do hold, that there is -a Blafphemy againft Saints, and
Blafphemia DH 'vel fatiBorum bath but one and the fame puniQi-
ment with them, and that isa folemn and publick penance If the
Blafphemy were publickly committed. Extra de Maledi6lx.flatui-
mus. And that the World may know how they abominate this fin of
Blafphemy, they put the Queftion and Demand, whether any Prieft
inferior to a Bifhop, can abfolve a man from this fin ? For anfwer
they diftinguiib and fay, that if the Blafphemy be publick and no-
torious, it cannot be abfolved butby aBifhop: but if it were only
private and occult (non in platea^ nee in camera multis audientibm)
then every Prieft may abfolve it, Ant.de.fa.& re.JiEfifcopm.lib.6»
.Stefh. de Gaeta Repet. in c. ad Liminia ^o, e[,i. nu. i^p. Aquinat
reckons it among the Mortal fins.
(^.) Lindvjood'mhk Provincials dys, that that is Blafphemy
qua dicitur irreligiofa reprehenjio^ detraBio^ vel vituperation but
( fays he^ to fpeak properly and ftridly, Blajphemarc^ efi Deo in-
JHriam irrogarCy which may be done three feveral ways, (i.) Alt'
qttid attrihuendo^ quod Deo ncn conventt. (2.) Ab eo removendo
-quod Deo convenit, (^. ) Creaturee attrihuendo illud quod efi pro-
prium Deo. Lindw. de Office Archipr.c.l.verb. Blafphemia. In the
Primitive times this fin was puniflied by a delivering the Offender
over unto Satan, which was an Ecclefiaftical cenfure by ih& Greater
Excommunication, whereby the Offender became unto others as an
I Cor. 5. 5. Heathen and a Publican. Mat. 1 8.1 y.and whereby he is disfranchifcd
^ 1 im. I. 2. ^f all the Priviledges of the Church.
(4.) Touching Herefie, there ar€ various conceptions as to the
<lerivation of that word i fome are of opinion that the word comes
from Error zndreBus^ and that from thence comes \_Hareticus'\
that is Errans a Re Bo Jive ReBitudine Fidei Catholics, I.2, in fin.
C de H^rettc. Others will have the word Harejis to be from £ he'
rifcor^ that is [_divid0)'] and thence Herefie to be Divifio ab uni'-
tate Fidei.Az,o.Sum.C.eod.tit.Otheis w'lW have it to be from [ hareo
& Error ^ ] thence Harefts^ quafi adh^do Erroruy and Hareticm^
quaji adharem Errori^ for Error of it felf doth not make an Here-
tick^ but adhering to an Error doth. Lindw. Haret.c.i. And others
•there are, who do conceive that the word [ Harefis ] dicitur ab
iEleBione, becaufe an Herctick doth chufe to himfelf that Opinion
•• . - which
Of Here fie and Hereticks. 5^1
which he thinks is beft for himfelf {b). And he that inclines to this
Opinion feems to be leall in Err or ^ for Harefis is from the Greei^ ^X^^^^^^'
^^tpi^K Optio, vel eleBio, feBa^ ai «t/??/>cA/ Eligo, Here fie is an Opt- ExteUu^^'^
nion repugnant to the Orthodox Docirine of the Chriflian Faith^ oh- ■
fiinately maintain d and prftfied m by fuch as profefs the Name of
Ciir//.That Herclie which is Qomrc{on^ci[\tdHarefis.uni'uerfa^txt-
lic tn fenfu largo is threefold^znd doth conlift either in a mans heart,
or in his mouthy or in his works. Under the firft of thefe are compri-
zed all fuch as are Chriftians only by Name, but not fo in truth and
in deed : Under the fecond are comprehended all vain Swearers, Co-
venant-breakers, and indevout approachers to God in his Worfhipi :
Under the third are contained all Hypocrites, whofe counterfeit De-
votion without any lincerity in the heart, conlifts only in the fimu-
lation of an external work i all thefe are by Lindivood underftood
in a large fenfc as Hereticksh Linduf^.de Offic.Archipr.ci.glof.in ver*
Harefs. But thefe are not the Hereticks here meant or intended, nor
indeed are they Hereticks in any proper fenfe, whereby we common-
ly underltand fuch as Hereticks, who maintain and perfift in any.
Opinion contrary to the True, Orthodox, Catholick Faith, or any .
of the Articles thereof grounded on the word of God.
C5.) By a Provifo in the Ad of i Eliz» c. i. no matter or caufe
fhalL be adjudged Herelie, but fqehronly as hath been fo adjudged
by the Authority of the Canonical Scriptures, and by the rirlt four
General Councils, or by any other General Council, wherein the
fame was declared Herelie by the expreis and plain words of the Ca-
nonical Scripture, or fuch as fhall hereafter be determined to be He-
refie by Parliament, with the alfcnt of ilic Clergy in their Convoca-
tion, as appears by the faid Statute \ the occalion of the making
whereof was (as is fuppofed ) by reafon of an Indidment againlt
certain perfbns called Lollards^ upon the Statute of 2 H. 4. r. 15.
Whofe Opinions were fi.j! That it was not meritorious to go in inVdYds Uom
Pilgrimage to St. Thomas^ nor to St. Mary of Walfmgham. Nor Lalium Darnci
(2 j To adore the Liiage of a Crucifix or of Saints. Nor (3) To °'" Tarcso
confefs iins to a Piiclt, but to God only, &c.
(6,) Sir Ed. Coke in the third part of his Inftitutes c/?^. 5. doth
aflert, that both by the Books at Common Law, and by Hiftory it
doth appear, that an Heretick may be convided before the Arch-
bilhop and other Bifhops, and other the Clergy at a General Synod .
or Convocation. Bra^. lib. 3. /p. 1 3 3, 1 2 4. ii^ Concil. Oxon. Ntiv-
burgh.l. 2. C.I 5. 6 H. 3. Stow. Hul. 203. 2 H. i\,Rot,Farl.nu. 2p,
Sautnes Cafe F.N.B. 2<^5?. 2. i El. c. 1. And the Bifhop of every
Diocels may couvidt any for Herclie, and fo might have done before
the Statute of 2 H.4.C. 1 5, (c). P^or theDiocefan hath Jurifdidl on of .
Hcreliej and lb it was pradifed in ^llQ^ttwEliz^dbeths Reign: and j^]^^ °' ^' ^'
accordingly
1^62 Of Here fie.
accordingly it was refolvcd by all the Juftices in the Calc of Lc
■Yd)BY vlmitii i^^^ ^^^ Heretick (d) h And that upon a convidion before the Or-
Chief Juflice, dinary of Herelie, the Writ de Haretice coniburendo did lieC^*,
T:anfiild Chief Without the aid of the Adt of 2 ii.4. c. 15. it leems the Dioce^n
Baron, mlli- could imprifon no peribn accufed of Herelie, but was to proceed
luftices Hil. 9 ^gainil him by the cenfures of the Church. And now (fays the
jac. Lord Coke in the forecited place ) in as much as not only the laid
(0 Mat. Bm- hdi of 2 H.4. but alfo that of the 25 H. 8. ^,14. are repealed, the
mond.2 \ Eliz. Oiocefan cannot imprifon any perfon accufed of Herefie, but muft
Stow^ill'i. pi^oceed againrt him as he might have done before thcfe Statutes, by
Co.ubi fupra. the cenfures of the Church, as it appears by the faid Ad of 2 H. 4.
c. 15. according to Sir £<?/. Coke in that place aforcfaid, where he
alfb faith, that no perfon at this day can be indided or impeached
of Herelie before any Temporal Judge, or other that hath Tem-
poral Jurifdidion. But every Archbilhop of this Realm may cite
any perfon dwelling in any Bilhops Diocefs within his Province for
-caufis of Herelie, if the Bilhop or other immediate Ordinary therc-
(fj 2 J H.8.9.& "'^^° confent, or if that the fame Bilhop or other immediate Ordi-
€0. ubi fupra. nary or Judge do not his duty in punifliing the fame (/).
(7.) Again, Sir Ed.Coke in the forementioned place affirms, that
it appears by Braclon^Britton, Fleta, Stamford and all the Books
of the Common Law, that he whjis duly convided of Herefie,(hall
be burnt to death. Mir. c.4. de Maje^. BraB. ubi fupr. Britt. c. 9.
Fleta /. 1. c. 35, Reg. F. N. B. 26 p. But the Eccleliaftical Judge
cannot (as he fays) at this day commit the perfon that is convid of
Herefie, to the Sheriff ( albeit he be prefent ) to be burnt > but mult
have the Kings Writ de Haretico comburendo according to the
Common Law. F.N. B. 2 6p. Rot. Par. 2 H. 4. »«. 29, Sautries
Cafe, Bre.de hieret.Cowbur. fer Reg. ^ Concil.in Varlim. The rea-
fon Sir Ed.Coke gives, wherefore Herelie is fo cxtreamly and tear-
fully punifli'd is, for that Gravius ejh aternam efuam tem^oralem
f ^ r Mar tit ^-^^^^^^ Majefiatem i And Harefis efl lepra anim^e (g). The party
Hxrefis. Br. 7! duly convided of Hereffe, may recall and abjure his (Opinion, and
'Co.ubi fupr. thereby fave his life, but a relapfe is fatal. And if the Heretick will
not ( fays he ) after convidion abjure, he may by force of the faid
.(h) Co. ubi ^ "^"f ^^ burnt without abjuration (b\ 2 H. 4. Rot. Pari. N. 24.
•fupr.& 2. Mar« A Writ was iiliAed by the advice of the Lords Temporal in Parlia-
Co. ubi fupra. ment to the Sheriffs of London, and fubfcribed fer iffum Regetn (^
concilium in Parliamento, by which the Sheriffs were commanded
to burn William Sautre, who had been before condemned for a re-
lapfed Heretick by the Archbifhop of Canterbury Afofiolica fedis
Legatum, and other Suffragans, and all the Clergy of that Pro-
vince, in Conflio fuo Pro'vinciali Con^regat. juris ordine. Note
vi Eliz,, c^f.A.Prowfo^ that fuch as have Jurifdidion by Letters Pa-
tents
and Hereticks. 5 ^2
tents, (ball not have power to judge Herejie but in fuch Cafes as
have been before adjudged, &c. or fuch as (hall hereafter be ordered ,
j&dged, and determined to be Herejie by the High Court of Parlia-
.ment of this Realm^v^ith the aflent of the Clergy in their Convoca-
tion, as aforefaid. Before a Man (hall be adjudged an Heretick,
he ought to be convidled by the Provincial Synod i for the Com-
mon Law doth not take notice what \s Herejie. If an Heretick con-
vi6t (hall after abjuration relapfe into the fame or any other Herejie^
and thereof be convidt again, the Writ De H^eretico Comhurendo
may be direded to the Sheriff after the party is delivered by the
Clergy unto the fecular Power. And by the Statute of 2 H.4. c.i 5.
Every Bi(hop in his own Diocefs might (as aforefaid J convid a
Man oiHereJie, and upon another con vidion after abjuration might
by the Sheriff proceed unto comburation. But that Statute is re-
pealed by the Statute of 25 H. 8. c. 14. vid. Co. lib, 12. in aCa(e
of Herejie. Note 2 Mat. tit* Herejie* Brook per omnes Jujl^iciarios
^ Baker & Hare. The Archbi(hop in his Province, in the Convo-
cation, may and doth ufe to convid Herejie^ by the Common Law,
and then to put them convided into Lay-hands, and then by the
Writ De Haretico Comhurendo they were burnt '-, but becaufe it
was troublcfome to call a Convocation, It was ordained by the Stat.
2 H. ^.cap. 1 5. That every Bi(hop in his Diocefs might convid
Hereticks. And if the Sheriff was prcfcnt, he might deliver fuch to
be burnt without the Writ aforefaid , But if the Sheriff were ab-
fent, or he were to be burnt in another County, then the faid Writ
ought to be had, who zxt Hereticks^ vid, 11 H.y.Boek of Entries^
fol.^19. 'vid.DoBor and Stud. lih.2.cap.2p. Cojin. \^.2i. <ir 2 V.&
M. ca'^. 6. Alto 3 F.N.B.foL 26 p. And the Writ in the Regifter F.N.B, z6^.
proves this diredly, 4 BraBon l.^.cap. p.fol. 123,124. And it is
alfo true, that every Ordinary may convent any Heretick or Schif-
watick before him pro falute animee^ and they degrade him, and en-
joyn him Penance according to Ecclellaftical Law \ but upon fuch
convidiow the party (hall not be burnt, l^ote (fays the Lord Coke
in the fame place) that the makers of the Ad of i ZlZ/z.. were in
doubt whatfhould be deemed Herejie or Sch'tjm^ &c. and therefore
the Statute of i^ Eliz,. provides, that nothing (hall be deemed He-
refii^ but what had been fo determined by one of the four General
Councils, the word of Godj or Parliament, 'vid. Fox in Ed.6. and
Britton. 5 Ed. i. lib. 1: cap. 17. and with this agrees the Statute,
2 H. '). cap. 7. 2^ H.y.p. 25 H.8. C.14. The proceedings in the
commencement and end was altered by the Stat, of 2 5 H. 8. Then
came the Statute i Ed. 6. cap.12. and that repealed 5 R.2. 2 H. 5-
and 26 H.8. and the 2 H.'\.. and by general words all Statutes con-
cerning matter of Religion i then the i d^" 2 P, & AX ca^.6. Revi-
O 0 0 o ved
ved the 2 H.4. by which the 15 H8. loft its force, the A(ft 1 and' a
P. and:M c^f..%. exprefly repealed 21 H. 8. 23 jy;8.24H8.27 H;8^,
but the 25 H8. c^p. 14. was not repealed, being repealed before byf
the I Ed, 6. yet in the end of that long Adt there is a general Claufe ,
fufficient of it felf to repeal the kdu 2 5 H.S.cap. 1 4. whithout more.
Then the i E/Vz,. cap: i. repeals the: 1 and 2 P. and M except
fome Branches V and in the fame A<5t is enaded, that ail oriier
Statutes repealed by the faid: Adr of Repeal i and 2 P. and M,'
and not in this Ad:, fpecially revived, fliall remain repealed. But:
the 25 H.S, cap, 14. was not particularly revived, and therefore
remains repealed. And after the feid Statute r Eliz,. repeals the
Ad: I and 2 P. and A/, of reviving of three Ads for punilhment o£
Herejies i fo that now at Common Law faccording to the Lord]
Coke) none can be burnt for Herefic, but by Convidon ataCon-
vocatioi-u After this, viz» Hill,6,Ja£. the Attorny znd Solicitor
confulted with him whether at this day, upon Convidion of an
Heretick before the Ordinary, the Writ de Harecito Comburendi)'
Hill. 9. Jac. lieth, and it ieemed to him to be clear that it did not, for the:
Co. lib. J 2. Reafons and Authorities that he had reported Tri», 9, Jac, before;
But after, they, confulted alfo with Fleming Chief Juitice, Tanfiddi
Cliief Baron, and Williams and Crook Jultices : And they upon the
report of Dr. Cojins^ and fome Prelidents in Queen Eliz,abeths tinar,
trejie, (8.) Since the Devil in his Serpentine Policy firft negotiated the
fall of Man, there have ever been fuch as have gone forth, like the
lying Spirit is Ahahs falfe Proph€ts,whereby many,as he was, are de-
ceived to their own ruine > thefe are the Devils EmifTaries, Adive in
ibwing Tares among the Wheat ^whom we commonly call Hereticks^
a black Catalogue whereof inan alphabetical Method here follows.
Acatiani znd Semi- Ariani^ they held that the Son was a Creature
An. 4pi. j^^j^ j^y j|^^ p^ather, and that Cbrifi was like to the Father in Will
but not in Subllance. This Herefie began by Acatif/s (not the Eu-
tychian) Bidiop, and Succeflbr to Eufehius in Cafaria i and was
condemned in the Council of Seleucia,
A.D. 353. Acephali^ fo called becaufe they had neither Bilbop nor Priefi: for
their Head, and were Branches of the Eutychian Hereiie. They rc-
jeded the Council of Chalcedony and denied the two Natures of
Chrifi, They defpifed all Congregations and the Sacraments.
Aa. 174, Adamiam\ fo called from their going naked in their AfTemblies
Tin imitation oi Adam in his InnocencyJ to which Eftate they (aid
Chn'^ had rellored Mankind. They condemned Marriage and had
Women in common, with v^^hom they by promifcuouily after the
Light put out. They held that we ought not to pray to God, be-
caufe he knows our wants without Piaycr : And called their Af^
femblies
and Heretic k§< 5^ 5
femblics that P^r<i<///g which God had promifcd to the Blefled.
J'hey had their Conventicles in fubterranean places, called i^/^pi?-
taujta^ bccaufe that under the place of their Meetings, a Furnace 6i
'Fire was kindled to warm the fame, where they uncloathed them-
^Ives when they entred into it, and Itood naked, both .Men -and.
Women, in imitation of Adam and Eve before the Fall, This He-
refie was firft broach'd by one Trodicus a Gnoftich There Was alfo
the Herefie of Adamites^ promifcuous in their Lufts, begun or rather
revived by a Vicard of GaUo-Belgia in the year 1341.
zy£tim^ ^ Syrian oi Antiochy andPricftof that Church, fuccef- ^^ ^
Cor to Arius^ to whofe Errors he added, and was degraded '•> aiTd
went into Cicilia, where he publifhed them, and was baniflied by
the Emperor, and recalled by Julian in hatred to the Chriftians. He
held(beiides Arianifm)thditGod was comprehenfible^and thztChrifi
was unlike the Father in all things, and fpake uncouth things of the
Trinitv,and was juftly called an Atheift.He was condemned in the Se-
/f«c/<j» Council ill the year 3 55> and confuted by Epfhafjt^,^'^ '''^■•
*^^«aff^, they held that the Divine Nature of Chrift wasl^fld- ^^^ ^ .
rant of fome things, as oi the day of Judgment, and denied ptr-
fed:ion of knowledge to the Son of God in his Divine Nature.
Almartcani^ from Altnaricm of Carmtum in France^vfho utter- ^g_ j^^^;
cd Biafphemous opinions concerning God, that he was the EiTence
of all Creatures, and the Soul of Heaven, and that all Creatures
fliould be converted into the Subftance of God again : Thcfe Here-
t':cks approved of all Uncleannefs under the Veil of Chaftity.
AUgi^ they rejeded the Gorpel,and the Revelation of St. yohn i An. 198,
faying that they were written by Cerinthm^ and denied Chrifi to be
the iVord^ as alfo his Divinity.
Angelicij thefe Hereticks were Angel- Worfliippers \ Efifhanius An. 214.
who fpeaks of them, better knew their Name than the Original of
their Scd.
Anomai, a Branch of the Stock of the Avians \ the principal
Authors were ^catiusy EunowiuSj and ^ttus. This was in the
fourth Century s Soz,om. I. 4. c. 22.
v4«t/»r<)pow(5rpi6/f^, thefe Hereticks were the Difciples of the Aude- An, 932.
anin A.^jo. and revived their Herefie, fo called of Audem 2i Syrian^
who lived in the end of Aurius his time. They Blafphemoully held
that God had a Body like unto Man. That Darknefs, Fire, and Water,
were eternal •, they refufed the Congregation of the Orthodox Church
& admitted grievous Sinners to the Communion without Pvepentance.
Antidicomarianita^ thefe fuppofed that after the Nativity of our
Lord, the Virgin Mary accompanied vvith her Husband Jofephf
and did bear Children to hira. AugHjf. de haref, of which opi-
nion was Hdvidim. It is faid, that the opinion of the Fathers of
O 0 0 0 2 th*
1^66 Of Here fie
the Church was, that as no Man did lie in the Sepulcher wherein
Chrifi was buried, before him : So in the Womb wherein he w^
conceived, no Man was tonceived after him s and that the Fathers
by the words in the Apoftolick Symbol underftood, that he was Born'
oiMary a perpetual Virgin j And that by the Brethren of our Lord
m the Holy Scriptures, is meant fas is generally held^ the Kinfmen
of the Lord according to the Flefti.
Ao. i<%6. Antitrimtarians were thofe Hereticks who denied the BlclTed
Trinity.
'A^^f Te/o;tHTo/, thefe were a Branch from the Root of "Euty'
Qhes ; They fuppofcd that the Flefti ci Chrifi was void of all kind of
Human Infirmity. The Emperor Jufi'mian was faid to be tain-
ted with this Herefie in his old Age, by bearing fo much with
the Emprefs Theodora , to the great Advance of Eutyches his
Error.
A^elles^ a Difcipleof Mardon, yet could not agree with his Ma-
fter in all things i for he agreed that C/)ri/? had a true Body, but
not made of the Subftancc of the Virgin Marj^ but of the four
•' - ■" Elements, and that after his Refurredion hediffolvcd into the
four Elements, and then return'd to Heaven from whence he came,
Epipban*
^Dt^i, ApoUinarist Birtiopof Laodicea In Syria, (o Ruffin. 1.2. c. 20,
yet it is faid of him, that miffing of a Biflioprick he fell into thefe
Herelies, 'viz.. That Chrifi had no Humane Flefh from the Virgin,
but from Heaven : That he had a Humane Body,but not a Soul,con-
r- . founding the Pcrfons in the Trinity -, That Chrifi had no Humane
Will : That Souls begat Souls : That after the Refurredion, all the
Ceremonies of the Law (hould take place among the Godly.
Afi 385^ Apofiolicii thefe Hereticks condemned Marriage, and held the
Apoftles to be all unmarried : They made all things to be common:
They ufcd Apochryphal Books for Gofpel : They refused to receive
thofe into the Church who had lapfed after Baptifm : They would
not have PoiTellions, but rejoyced in voluntary Poverty : And gave
Sentence againft themfelves that they were unclean, becaufe they
were procreated by Marriage.
Acjuariij thefe were certain Hereticks, who inftead of Wine re-
ceived Water in the Holy Sacrament. This was in the days of
Cyprian.
Arim, zLyhian, and a Prieft ox Vv^.sh'^i^x oi Alexandria, he
- 3*4* (21^ i]^2i Chrifi was neither God, nor Eternal, but an excellent
Creature created before all Creatures : That he afTumed only a
Body, but not the Soul of a Man : That the Holy Ghoft was
- a Creature of a Creature, 'viz,. Of the Son : He FLtbaptized,
and perverted the Order of Baptilin; He ufed the T'rifagion thnsj
Gloria.
and Hereticks, 5^7
Gloria Patri, per Filium, in Sfiritu SanBo : He denied the Son of
pod to be begotten of the Subflance of the Father, but that he was
a Creature, and made of things not exiftent, and.that there was a
. time wherein the Son was not: He was condemned in the Nicene
Council, and bani(hed by the Emperor Confiantine.
Armenii, fo called of the Province, where their Herefies raged, An. 6og.
by the means of Euchanens called Mantacmes : They denied that *
Chrifi alTumed his Humanity from the Virgin Mary : They cele-
brated the PalTover after the Cuftom of thtjems : They held a
Quaternity, and that the Divinity fuffered.
Artetnon^ Bifhop of Bofira in Arabia, denied the Divinity of
Chrift, and affirmed that he was not .exiftent before he took Flefh
from the Virgin. This was in the third Century.
Artotyrita, they were of the Staoi.ihQ.Vetufiam, and added An. ig^o
Cheefe to the Bread in the Sacrament.
Afjitas thefe were Hereticks who carried about with them new
VefTels^to reprefent that they were VefTels, tilled with the new Wine
of the Gofpel.
Badeftamfia^ thefe were but a Branch of the Herefie of the Var
hntiniam znd.Gnofiicksy who denied the Refurrcdlion i thefe Hc^
reticks were in the third Century.
Bafilidesy an Egyptian of Alexandria v he held fond Opinions Ao. 13^
concerning the Creation and number of Heavens ; That not Chrifi
but S-imcn of Cyrene was Crucified : That it was lawful to deny
Chnfi in time of Perfecution, and to have Idols i That no Sins but
fuch as are unwittingly committed (hould be pardoned : That
Faith was natural : That Prophefies came not from God but Angels ;
And that there was no Refurredlion.
Beryllus Bifhop of Bofira, he was Orthodox at the firf^, but af-
terwards held that the Soul died with the Body, and bothrofe a-
gain together : That Chrift was not before the Nativity. Origen
reclaimed him. Thefe Hcreiies were condemned in the Arabian
Council, An, 24P.
Caini, fo called of the fpecial Worfhip they attributed to Cain : An. 1 50^
They reverenced Efaif,Core, the Sodomite s, yea and 7«i^ himfelf,
as Authors of Mans Salvation : They denied the Refurredtion of
the Body, rejedlcd the Law, and worfhipped evil Angels. Ter-
tullian and Epiphanius fay •■> That thefe Hereticks arofe from the
Nicholaiiam, but Irenam lays they fprung out of the Vakfttini^
ans.
Carpocrates of Alexandria in Egypt ^ht held that Chri(t was mcer An. 14U
Man, and Born of Jofeph and Mary : he held alfo the tranfmigra^
tion of Souls •, alfo that the Devil created the World, and denied
the Refunedtion. Thefe damnable Herefies did fpread in Egypt^
Afia^
S68 Of Here fie
AJia^ind Rome under the name of Gmflicks : he lived incontinent-
ly with Marcellina, one of his own Sed:, his Son Epf banes fuc-*
eeeded him in his diabolical Hereiie, and (after himj Trodicm the
Author of the Adarmtes. The followers of Carpocrates had in Se-
cret places Images of Gold and Silver, which they called the Ima-
ges of Jefm^ and therewithal the Images of Pjtbagoras, Plato,
and Arifiotle., all which they worfhipped. So that the worfliipping
of Images, and the adoration of the Image of Jefus^ fecms to be
a Cuftom borrowed rather from the old Hereticks, than from the
ancient Fathers of the firft three hundred years. Eftph. contra
Hicref. »
Ao. i<t» Cathari, they profclTed themfelves purer than others, and held
Rebaptizing thofe who finned after Baptifm, condemned (econd
Marriage, and refufed to receive thofe who had lapfed in time
of perfecution. The founder of thefe Catbari was Novatus or-
dained Prieft of Rome by Cornelius, upon his repulfc in a Bifliop-
rick*
An, 144. Cerdon of Syria^'^om whence he went to Rome^ and in the time
of Higintis broached thefe bla{phemous Herefies, viZ>. That there
Were two Gods, one good, who was the Father of Chrift^ and
another fevere and bad, and this created the World. This Cer-
den J as alio Marcion, were the Authors of the Opinion of two
Gods, or two beginnings : he denied the Refurredtion of the Body,
and invented a new Baptifm after a Man hath been Baptized a fe-
cond and a third time : he held that Cbrifi was neither Born of
the Virgin Mary., nor fuffered really •■> with many other Blafpheraies
againft him : he rcjeded the Law and often feigned to recant, but
in the end was Excommunicated, having lived in Rome eight and
thirty years.
An. pg. Cen«r^«/ja circumciied Jew, contemporary with Ebion^t affirm-
ed that the World was not Created by God, but by an inftriour
Power : That Cbrifi was born after the manner of Men, oijofepb
and Mary^ denying her Virginity h he divided Jefus from Cbrifi,
faying that Cbrifi defcended upon Jcfus at his Baptifm in the form
of a Dove : That Jefus, not Cbrifi^ fuffered and rofe again; That
there was a necedity of Circumcifion, and that Life Eternal fhould
be at Hierufakm, where all earthly Pleafures fhould endure one
thoufand years. The report is, that St.Jcbn finding him in a
"Bath, departed thence faying, that it was a Miracle that the Bath
•fell not down while Cerintbus^ was in it. This Here fie began at An-
tioch, and fpread over ^/^ 2xA Syria \ but this Name lalied not,
"though Carper as and Samofiatenus continued the Hereiie.
■Chi'
ajid Heretic ks. 5 6^
ChtUafia or MiUenaru, their Author was Tafias Bifliop of Hie- An. 116.
rafolfs^ whofe Herelie was a Branch of that of Cerinthus^ in that
/ioitit that Chrifi would raife the Godly iirH, and live a thoufand
', years with them on the Earth. This Herelie was afterwards main-
tained by Nepos^ an Egyptian Bi(hop, two himdred thirty one years
after Chrifis Pallion.
Circumcellwnes^ They were the mod reprobate Branch of the
Donatifis : they would throw themfelves headlong from high places,
or caft themfelves into fire and water, and counted ir Martyrdom.,
Ai*g. de H^eref.
Colarhafusyhc was Marcus the Magicians fellow Difciple-, and held
that Mens lives and a<Stions were ruled by (even Planets, and divided
y:^us and Chrifi into two diltindl perfons.
CoUyridiani^ they offered Divine Honour to the Virgin Mary.mA . .
Saerihccd to her as to the Qiieen of Heaven, they worfhipped her '
with Divine Adoration, and offered to her little Pafties baked. E-
pphan,
Coluthiani^ they denied that any evil, either ofCii or puniflimcnt
was of God.
Donatiflsy from Donatus a Pric(\ of Carthage^i who mifling the An, goy^
Bifhoprick he would have had, did difcontentedly fall into thefe
Heretics, viz,. That the true Church was no where bat with him
and his Difciples : That obedience to Gods Precepts ought to be
voluntary and not compuUive : That no Hereticks ought to be pu-
nifhed by the Magiftrate : he meafured the effedls of the Sacra-
ment by the Minilter, not by the Author : He rebaptized, ufed In-
cantations, and boafted of Revelations : He held the Son to be lefs
than the Father, and the Holy Ghoitlefs than the Son : His followers
flew as many oppofitcs to their Sed: as they could : He was at lart
Bifhop of Numidia,
Ebioni, {vom Ehiom Samaritan^ their Founder, or from Ehion An. 87,
\_Hebraice'] Poor, they having made themfelves fo by diflributing
their Goods in Alms. They denied the Divinity of C^ri/?, rejeded
St. Vatils Epililes and all the Gofpels, except St. Matthe'iv \ and
held themfelves bound to obferve the Law of Mofes as necelTary to
Eternal Life. Eufeb.
Ecclefai, of Ecclefai their FouTider,they were alfo called Sampfei : ^g, ^ j,^^
They oppofed the Virginity of the Virgin Mary^ and held that there
were two Chrifis^ one inferiour Born of her,the other fupeiiour, alio
that the Spirit was Siller to Chrifi : They adored Water as a God i
Held it lawful to become Apollates in time of Perfecution, and ap-
proved of one only apocryphal Book made by themfelves. They
iprang from Ehion the Hrretick.
En-
570 Of Here fie
Enchratitea^ (b called becaufe they abftained from Wine, eating
of Flefh, and living Creatures ■» they condennned Marriage, and
hlafphemed the EpUtks of St. Paul i The Author of this Sed was*
Taty amis z Syrian. Eufeb* L ^. c.2^.
An. 38$. EuchitiS^ they held Baptifm unproHtable.
An. '^61, Eunomias, Birtiop of Syricum^ an Arian^ht added to the Mere-
fies of zy£etim, that the Holy Ghoff was created by the Son ■■> And
that C/6ri/?afllimed only a Humane Body, and not a Soul, he was
confuted by St. Bafil.
Ad. 447. Eutychesy Abbot oiConflantino^le^ confuting Nefiorius, fell him-
felf into other errors, and confounded the two Natures of Chriff^
making him (after his union^ to have but the Divine Nature only,
and held that he aflumed nothing but Humane from the Divine :
He affirmed alfo that the Divine Nature was paffible,and that Cbrifi
was rather deihed than God 'j He was condemned in the Council of
Chalcei:ion,
An. 792. Fcslix Bi(hop of UV^e/ on the PyreneanKiWs : He held thzt Chrifi
in his Humane Nature was the adopted Son of God i He was con-
demned for Herefie at Ratisbon '■> hence came the Fceliciani.
An. 17S. Floriani from Florinus or Florianus a Prieft of Rorne^ he held
that God created all Creatures and things in an €vil ftate, and cele-
brated the PalFover after the manner of the yews,
Fratricelli^thty were of Opinionjthat a Man might in this World
attain to a ftateof fuch perfedion, that he might be altogether with-
out Sin.and that he who had attained thereto, was neither under lub-
je<9:ioii to Civil nor Spiritual Governours, but was freed from all
rubjc(^ion to mortal Men, and that they had no need of Prayer nor
Failing. Thefe were in the thirteenth Century and now alfo in the
feventeenth Century are every where to be found among us, though
under another.appellation.
Ad. i2p$. Gaz^areni^ called alfo Tatereni^ zn^Gaz,ari^ thefc were certain
Hereticks about Tholoufe in France in the thirteenth Century, who
held that married Men were not in a State of Grace, and could
not be faved j This Opinion was condemned by the Council of
Latera7u
'' Gnofiicks, they afTumed that name from the knowledge and learn-
ing which they proudly conceived they had above all others : They
held fbefides thole Herefies of the Carpocratians) many other fond
Opinions concerning the Creation by Angels •, and affirmed that e-
very faithful Man had two Souls i that there were two Gods, one
good and the other bad h They diftinguilhed Jefus from Chrifl- :
And held that Cbrifi was eighteen Months upon Earth after his Re-
•furredion. There were divers forts of this Sed.
Go-
and Hereticks. 57I
Godefcdchus^ one o{ the Net kr lands, about the year eight hun-
dred forty nine, pernicioufly held, that thofe who were preddHnated ^*' ^'^^'
-&nto hfe by a Decree of Gods Predeftination, were necellitated to do
^'well : and thofe who were predeftinated to condemnation, were
neced itated by a Decree of God to do evil.
Helfefaita, the fame with thofe formerly called ElcefaifithetWik
called Sam^fai ; they mixed the Religion of the Je-ws.GmtiUs, and
Chrifiians together : they rejeded the Writings of the ApoftleP^/// :
and affirmed that a man who denieth the Lord with his mouth in
time of Perfecution, if fo be he adhered to the Faith in his heart,
he had committed no fin : they carried about with them a fingular
Book, which they faid was fent down from Heaven, and promifeci
remilfion of fins to every man that would hearken to the words o£
that Book , thcfc were of the third Century. Epfhatt. contr.Uref.
2 . er Comment. Func. in Chron,
Hermiani, they fprung from Hermogenes an African, and held An. 2ou
that the Mafs whereof the World was created, was coeternal with
God : That Angels created mens Souls : That Chrift afcending left
his humane FleQi in the Son: They denied the Refurreaion, and
received not Baptifm by water.
Hieracita, of Hterax an Egyptian of Leontopolis, he fpake of An. 2^ r.
the Father as of two Lights, differing in fubftance : damned Mar-
riage : denied the Refurredion : excluded Children from Heaven :
held that Melchtfedec was the Holy Ghoji: and that Paradife wai
no Earthly place.
Jacobitoi of Jacoh a Syrian, called Zanz^alus, for his poverty : An. 507.
They received the herefie of Eutycbes.
^ Jovinianus, a Roman, he held all fins to be equal : denied the An. 3^2.
"Virginity of the Virgin Mary: Contemned Falling, and all'Spi-
ritual Exercifes: and held that Men did not fin after Bap-
tifm.
Luciantfia and AppeUtani, fo called from Luciams and Jpellef,
Difciples of Marcton.
Lucifer Bifliop of Calaris in Sardinia^ he diabolically held, that An. 357.
Mans Body was formed by the Devil: That a ChriOian might kill
himfelfto be quit of the burthen of the tle(h : and allowed but part
of the Old Tcllamenr,
Lucifernianij it is fuppofed that thefe were not from the former*
but from another Lucifer s for fom.e fay, that thefe were rather
Schifmaticks than Hereticks,and only hcldjthat Faith was a Weapon
ofContentionSjandnotofHereCes. Theod.Compen. H^ref.Sozem.
lib. 5, cap. 15.
Lombardiammis' for want of another Name, for in the time of
the Emperor Albert in Lombard) near to 'Navam^i\\^i^ were a Sed
P p p p of
572 Of Here fie
of Hereticks, who under colour of Religion and Charity made all
things common, and Women in like manner moved Men to carnal
conjundion, alledging it to be a deed of Charity. This was in tlje
fourteenth Century, Imp. Hifi.pag. ^22. <
Aa. 343. Macedoniam^ of Macedonius the Arian Bifliop of Confiantinopk^
They were fometimes Semi-ArianSy2X other times Arians^mi fome-
times Orthodox, but never conftant. They held that Chrifi was not
of the fame EiTence with the Father,but only like to him : And that
t,he Holy Ghofi was not God, but Gods Minifter, and a Creature
not eternal*
An. 2 74. Manes, a ?er(ianfith^xW\k called Manichaus in Diockjtan's time,
Author of the Manichees^ he was a devilifli crack-brain- Fellow, and
chofe to himfelf twelve Difciples, and compofed his Herefies out of
divers others : He blafphemoufly affirm'd himfelf to be the Holy
Ghofi : he held two beginnings, the one good, the other evil : re-
iedted the Old Teftament, and mangled the New : denied Chrifi\
Divinity, and his real PaiTion, and the Refurrcdion of the Body :
Condemned Marriage, Alms, and Baptifm : he mofl blafphemoufly
laid that Chrifi was the Serpent that deceived Eve : that Chrifi's
Body was fixed in the Stars : That he redeemed the Souls : he forged
many things about the Creation : he worfhipped the Sun and Mooq
as Gods : attributed two Souls to every Man : he afcribed iin not
to the free will of Man, and his natural defedion voluntary, from
the Eftate of the firft Creation, but to neceffity, becaufe Mans Body
was made of the fubftance of the Prince of Darknefs : with other
fond and blafphemous Herefies. One Scythianus a Saraz^en Mer^
chant infuftd thefe Herefies into him. Warranes King of ferfTa
hearing of his Fame, fent for him to cure his fick Son, who died
under his hand •, whereupon he caft him into Prifon, from whence
he made his efcape into Mefofotamia h but there the faid Kine re-
took him, flead him, fill'd his Skin full of Chaff, and caufed it to be
kt up before the Gates of the City in Mefomamia. EufeLlib,!.
cap. 30. &Socrat. Itb. i. cap. 22. Eccl. Hi(t.
"" ^^^' u^ j^^^''''^"' ^'^^^P ^f ^»cyra, the Metropolis oiGalatia, he held
blafphemous Opinions againf^ the Trinity, and denied the Divinity
ot Chrtfi. '
An. i66. Marcion, the Difciple of the Hcretick Cerdon : he held (befides
Cerdons Here(jes) thztChnfi was not the Son of God : he held like-
wife the transmigration of Souls: That War was not lawful though
on juft occafion : he condemned Marriage : rejeded the O'd Telfa-
ment: Forbad eating of Flefii, and allowed of Rebaptizing (f.ri./
^uones) as ofc as Men fell and repented. Tolycarpm called this Mar-
cton^Primcgemius diahli,
MarcHi
and Heretic kj* 573
Marcus a Magician, of whom came the Marcita > he invented ^
J new form of Baptifm, -viz.. In the Name of the unknown Father
, ,Gf all things, and in the Name of the verity of the Mother of all
* thiiigs, and in the Name of him who defcended upon Jefus. He
held that Cbrtfi fuffered not, nor afTumed a Body : he dehled the
Sacrament , and was a Man of a very filthy life : denied the
Refurred-ion of the Body, and fuppofed that Salvation belonged
only- to the Soul.
Melchifedechiani^ the Author of thefe Hereticks yvzsTheodatus An. 258.
Difciple to ^heodatm the Currier : he held that Melchifedec was
made by God greater than ChriH \ whofe Divinity they alfo denied,
and magnified Mslchifedec above Chrifi,
Menamler ^ Difciple and Contemporary with Simon Magus-, a An. ir-
Samaritan and a Sorcerer, and Author of the Gno(ticks > he held
with SifnGft about the Creation by Angels, and affirmed that he was
fcnt from Heaven to fave the World i and that by vertue of his Bap-
tifm Men fhould not die nor grow old : but the fuccefs not an-
fwering his promife, his Herefie fell of it felf. Eft^h, Eu/eh.Aftg»dr
Theod. lib, 4. cap, 11.
Meletiani from MeUtius^ a Bifhop of Thehaida^ he was de-
pofed for Sacrificing to Idols. This was in the fourth Cen-
tury.
MeJJaliani^ They worfhipped God, but not in three Perfons, An. 374*
and held that God might be feen with corporal Eyes i that the
Devil ruled our actions. They attributed Salvation to Prayer total-
ly : they contemned Chrifts Paffion, and the Sacraments, Alms,
and a laborious Life , and tolerated Perjury to promote Reli-
gion.
Metan(rifinonita^ They held that the Son was in the Father, as a An. 408^
lefTer Verfel comprehended in a greater : That God had Body, and
- in the Divine ElTence was fomething greater and fomething lefTer.
yiug. out of Vbilafier.
Monophy fia,whok Author was Diofcorus Bifliop of Alexandria^ An. 451.
they were alfo called Theopafchita and Mcnothelites^'who denied not
diredly the two Natures of Chnfi^ but only affirmed that after the
the Union of the Natures, there was only one Will and one Opera-
tion in Chrifi s they attrilauted the Divine Nature only to Chrifi i
Thefe were a branch of the Eutycbian Hereticks.
Mont anus of Vhrygia ^ Author of the Cataphryges ^ he An. 178'
affirmed himfelf to be the Holy Spirit, he called himfelf the
P p p p 2 Holy
574 ^/ Here fie
Holy Spirit, whom Cimfi fent to iiitrufl: his Difciples in all truth :
He faid that the Spirit fell but little upon the ApolVks, and full)*
upon himfelf : He inftituted Laws concerning Facing, condemned ' •
fecond Marriage, allowed Inceft, conlbunded the Pcrfons in the.*
Trinity, and baked Mans Blood with the Bread of the EucbariB :
He reduced two Women VrifciUa and Maxitnilla to leave their Huf-
bands and to be his Prophetefles..
An. 6^. Nazarem, they ftyled themfelves To, becaufe that before the Name
oiChrifiians began, that Name was the moii honourable among
Chrifis Difciples : They confefied Chrifi,hv\t withall held a neceiTity
of obferving the Lasv, and framed ftrange things ot Ouria or Nauria^^
( Noah's Wife, as they would have it ) or Feji-a. They had many
Gofpels ( as they called them ) and boaftcd much of Pvevelations
and Vilions : Tliey held that the Soul of a Man, of a Bead, of a
Plant were all of one Subftance. Thcfe Hereticks continued till
after the time of Efifhaniusy who reporteththat the Jews fo hated
them,that they prayed twice a day againft them.Epip/;. Aug.Theodor..
Ifidor.
An. 428. Nepotiani, from JST^ ;>tf/, a Bifhop in E^'pf , about the year, 2(54.
They affirmed that at the later Day the Godly fhould rife before the
Wicked, and fhould live with Chrift a thoufand years m abundance
of all earthly Pleafures. Eufeb. lib, 7. cap. 24.
Neji-criusy Bilhop of Conjlantimfle^ he fpake againft the Perfonal
Union of Chrifi's Divine and Humane Nature,for he held that Chrifi
had two feveral Perfons, but not two Wills : That the Son of God
in Chri^^wzs but an Afliftant to the Son of the Virgin Alary^whom
he would not have to be called the Mother of God, but only the
Mother of Chrifi^ E'vag. I. i.e. 7. He held that the Humanity in
Cbriji was made equal with the Diety or Divine Nature. He was
condemned in the Gaieral Council of Ephefus^ and died in Banith-
ment,his Blafphemous Tongue being hril eaten with Worms,wl?kh
rotted in his momth.
A^o. 8f. Nicholaita^ from Nicholas ^Dezcon of Jntiochi chofen by the
Apoftles to look to the Poor, who being fufpedied to be jealous of
his fan: Wife •, did (to clear himfelf) proffer her to any of the Bre-
thren that would Marry her s Whereupon they took occafion to live
promifcuoufly, making their Wives Common •, and held that it was
lawful to eat things offered to Idols : That Darknefs and Light begat
the World, of which were bom Angels and Devils,and of them Men*
This Herefie continued not long in this Namcjbut was publifhed ancf
revived by the Gnofiicks and Vakntmians, Com.Jkx. & Strom.'^^
AB, 6. & Eufek
NoetiaSi
and Heretic kS' 575
' Noetius, of Smyrna, Difciple to Montanu-, he called himfclf
iiV/c/fjjand held but one Perfon in the Trinity : He being convented, "' '''^'
»* ' abjur'd his Herefie; but afterwards being ambitious of a Name, re-
" lapfed and dilperfed it, and when he died, was caft out unburied as
not worthy thereof.
Novatus^ ordained a Priefi: of Rome by Cornelius^ he was the An. 252;
Founder of the forefaid Hereticks the Cathart : He held that fuch as
had fallen in time of Perfecution, were not to be reilored to the Fel-
lowfliip of the Church, albeit they repented thereof.
Ofhita^ of ^0!^i<; a Serpent, whom they worfhipped, affirming
moll: blafphemouny that Chrift was the Serpent which deceived
Eve : they denied Chrifi's Humanity, and the Refurredion : They
held alfo a Blafphemous opinion concerning the Sacrsment : This
Sed: was a Branch of the Vdentinians^ and continued till after the
time oi J ufiinian the hrlt. ' '- - .-
Origeniani and Turfes^ of one Origen a Gnofiich^ who 3rcw his ^°* ^^^*'-
Herefie from Efi^hanes Son to the Heretick Carpocrar : They pro-
hibited Marriage, but committed Fornication and all Filthinefs, and
reje(Sled fome Books of the Old and New Teftament, which inade
againft them. Some fay they were foul and Hlthy Beads, not ab-
horring Whoredom but Procreation of Children, to the end they
might feem chaft, not unlike unto Onan whom the Lord flew.
They were alfo called Origenifiaj becaufe they defended the Books
of Ongen^ who were Theodorus Afcidas Bifhop of Ca^faria-Cappa-
doctay and the Monks of Nova Laura. There were of thde Here- ■
ticks al6>in thefixth Century. *■' ^^ ■
T aimer ius^ the Chronologer, he was burnt for hfeHeuetical Opi- An. 185.
nion concerning Angels.
Tapius Biftiop of HierapolJs ••> he was St. Johns Difciple, yet ^j,^ .^^
afterwards became the A uthor of the Sed of the Chiliafis or Mille-
naries^ whofe Herefie was a Braixh of that of Cerinthus, in that
Point, that C^r// (houkl raife the Godly hrft, and live a thoufand
years with them upon Earth.
Tatalorymhita^ a Foolifh people, who counted it Religion to flop An. 1 16»
their breath with their Fingers, and not to utter any Intelligible •
Speech.
Tatareni 2ind Gaz^areni, thefe Hereticks did hold that married ^°* '^^5'
men could not be faved.
Fatermani or Fatriciniani ^n^Venufiiatn^ the^'' were' eaHed by •^o* 423=
the firli Name, oiVaternus their Founder, and by the laft, of their
lafcivious behaviour : They held that the lower parts of Man were
not made by God, but by the Devil \ others fay that they affirmed
that the whole Body of Man was formed by the Devil, aud not by
God.
Tauhs
57<^
-— ^ ^ • M|
Of Herefie ^
Vaalm Samofatenus^ (o called of Samofata the Metropolis of
An. 207. Comagena^ where he was born : He held that the Word was n(5ti
ill Chr'ifi^ otherwife than m the Prophets: That Clortfl was not'/
the Word, and denied hisQivinity : He Baptized not in Chrifi^s '
Name.
An. 412. Telaghts Brito^ whofe Followers were yulianHszndCceleJl^iuf^
in the days oi Arcadtus or Honorius : This Pelagius was a Rowan .
Monk, born in Armorica or Little Britain, who with his Difcipl?
Cceiefiius fpread his Herefies over almolt all Countrys, 'viz,. That
Adam had died though he had not finned i That his Sin did only
hurt himfelfj and not others but in his Example : That Luft and
Concupifence, which is naturally in us, is good, and nothing in it
whereof we need be afliamed : That Infants neither have, nor draw
Original Sin from the Parent ; That the Infants of the Faithful^
thought not Baptized, lliall be faved, but fhall remain without the
^ Kingdom of God : That Nkn have free Will fufficient to do Good,
without the Grace of God : That Men by nature were able to fulfit
the whole Law of God ; Howbeit more eafily and better if they
were fupported by the Grace of God, They denied Original Sin,,
and faid that the Pofterity oi Adam were Sinners by imitation (i
Adam's Sin, but had not received Sin by carnal Propagation ; Thati
Children had no need to be baptized for RemilTion of Sins ,•
and that the godly Fathers in Scripture, when they confeffed their'
Sins, they did it rather for example of Humility, than for ncceffity,.
or guilt of Sin. Thefe Herefies have in all Ages been confuted by
many Learned and Eminent Divines, and were condemned by many
., Councils, fpecially in the Council of Carthage,
Jtn. i8t2. "Pepujiani, they were oi Pepuz,a^ a Tovfnoi Phrygia^ between
Galatia and Ca^padocia \ They held (befide other Herefies oi Mon-
tanus) ihztVepuz^a was the Heavenly Hterufalem mentigii&^ by
St. Paul^ Heb, 12. and in the Revelation c. l.i.
Petrus Ahelardus-y a French man, he held vile things concerning
the Blefled Trinity, that the Holy Spirit was the Soul of the World,-
/ _f: and that he was not of the Subftanec of the Father. This was in the
twelfth Century.
^j^. 34'^« Fhotinus Bifhop of Syrmium in lUyria^ a Difciple to Mar alius i
,v>sx .E/iHehcld thzt Cbrifi''5 Kingdom v^^as not everlaihiig, began at his
Birth, and (hould end at the day of Judgment. He was condemned
:.-,. n 'iu ;he Council oiSardis. SocraU Efckf. Hifi. lih. 2. cap. ip.
Praxiik:
tU^HVil.
and Heretic ks- 577
Vraxeas^ he was Author of the Monarchici and Vatrifajfiani^ht ^^^ ^
held that God the Father only fuffered.
i
, TrifciUanifiai from TrifciUanuf-^ a man of Noble birth in Sfain\ An. ^^2,.
he confounded the Perfons in the Trinity : Held fond Opinions con-
cerning the Creation : That Mans Soul was of the fame EfTencewith
God : That Mans life was ruled by the Planets : that Perjury and
Lying were lawful, to hide a Mans Religion : He forbad eating of
FJefh ; and condemned Marriage^ but allowed Fornication, and re-
newed the Herefie of the Gnofttcks '•> this was in the days of the
Emperor Gratianus and Valentmian ; he was executed at Tr avers
as a Sorcerer. Hifi. Magd. Cent. 4. c. 11.
TrocUnianita^ of one Troclus, who (befides other Herefies of the An. 28 rJ
Sdeuciani) held that Chri(t was not come in the Flefh.
Quartodecimani; they held that Eafier was to be obfcrved on the An. 19^*
fourteenth Moon \ and upon what day (bever that Moon happened
Cthough Sunday) they fafted : They refufed to admit and receive
chofe who had lapfed after Baptifra.
Sakllius an African^ he and his Followers confelTed, that there An. 255.'
was but one God only, but they denied that there were three di-
ftincft Perfons in that one Godhead : They not only confoundedjbut
took away the Perfons in the Trinity : He was the Founder of the
Tbotimans Hereile: They 'wete c<i\kd Patrij>a£ianii becaufc' their
Opinion imported that the Father fuffered j tliis Sakllius was for .
his Herefie excommunicated. ■
S4mofatenuSi Bifhop oi-Antioch, he denied the Divinity of the
Son of God, affirming that Chrifi- obtained the Name of the Son
of God through his virtuous Behaviour and patient Suffering, but
that he was not naturally and truly the Son of God, begotten of
the Subftance of the Father : He abrogated the Pfalms fung in the
Church, and hired Women there to iing his own Praifes : He was
depofed by a Council at Antioch^ and excommunicated by all the
Chriftian Churches in the World. This was (as fomc affirm) not in
the fecond but third Century. '
Saturniani^ (xom one Saturnine of Antioch, who with Ba/ili" An. ijoa ..
des the Egyptian, fbared the Herefie of Simon in two parts 1. this
Saturnine held that his Difciples, though living diirolut€ly,might be
faved by Faith in him : That the World and Men were Created by
fcven kw^thfrater volunK^tem Bet ' That Cknji's Body was phan-
taftical ;
578 Of Here fie
( «
taftical: That there was one God of xhtjews^ another of the
Chrifiians : That at Beginning a Good and a Bad man were
created, and that from the Good came good men, and from, the
Bad came evil men : That Marriage was a Dodbrine of Devils^: That ,
men mud abftain from things that liad hfe : That fome of the Old
Prophets were of the Devil: and laftly they denied the Rcfurrcdion
of the Body.
-'An. i<4' Secundiani of Secundm, who was the Chief Difciple of Falem-
nian the Heretick i and held all his Hereiles, and allowed his Fol-
lowers all hlthinefs of Life,
Seleuciani or Hertniani from Seleucius ai^d Hermias^ they mofl
abominably held, that the MaCs whereof God created the Elements
was Coeternal with himfelf : That the Angels, not God, created the
Souls of Men. That Chrifi in his Afcenlion unclothed himfelf of
the Flefh of Man, and left it in the Globe of the Sun : They re-
ceived not Baptifm by Water : They denied the Refurredion of
the Body, fuppofing that by new Generations, one fucceediwg ano-
ther, that is performed which iq Scripture is witten concerning the
Refurredion.
^IftkU, 17-2. Set hit a, znothcx 'Bmnch qi Valentiman in Egjft : They hcld^
that Angels begat men in the beginning : They attributed to Seth
the Honour due to our Saviour^, and denied the Refurredtion of the
Body.
^n. i^. Severus^Succt^ox to AfeJles in the School of Marcion^ his Hcre-
fies were fprcad \\\Y.z^ Syria: They forbad the ufe of W ine : re-
jeded the Old Teftament aiKl the Prophets, uling /ip)cr)'pbal Books
of their own : Denied the R^efurrcc^icni : Akiibed the Creation
to Angels, kDe^ikd Women as works of the Devil, and iiled
■Magick. ! (.it" :
An. 41. Simon Magusy faid to be the Father of Hereticks, he was a Ma-
gician and an Hypocrite, though Baptized by PM//) the ApofUe :
he fpread his Hereiles at R^me^ where he grew fo famous, that the
people ereded an Image to him with an Infcripcion, Simoni
Deo SanSo : he mort blafphemoufly affirmed himfelf to be true
God: That the World was Created by Angels: he denied that
-Chrifi was either come or fuft'ered : he denied alfo the Refurredti-
on of the Body : he brought in the promifcuous ufe of Women,
and ufed the company of Helena^ whom he bUfphemoufly gave
©ut to be the Holy Ghofi.j, and that he begat Angels of her:
her
and Heretic ks, 5^p
he taught his Difciplts to vvorfhip Images^ his own Image, and
the Image of Helena^ who accompanied him from Afia to Rome :
;ne attempted to (hew his power in flying, and with a fall broke
his Thigh, and died miferably. Iren, /. i. c. 30. Aug, Epiph
Theod, j:;]^'. "
SwenkfeUius^ born in Silejta^ he held tliat the outward Miniftry
of the Word and Sacraments was not nccefTary to eternal life, be-
caufc that by the illumination of Gods holy Spirit, without the Mini-
ftry of the Word, Men might be faved.
Tatian, he held that Adam was damn'd, called Marriage Forni- ^q, ,^
cation, prohibited eating of Flefli and drinking of Wine s he held
many Gods, daiied Chrift to be born of Da'uids Seed, and con-
demned the Law of Mofes > He was Author of the Euchra-
tita,
Theodatusj a Cataphrjgian^ a poor Currier of Confiantino^le^ he An. 1^4;
held that Chrift was but Man, and begotten by Man i beiides which
Blafphemy he altered the Gofpel according to his own fancy. The
Theodatiani denied the Divijiity of Chrift, for when Theodatus
having in time of Pcrfecution denied Jefus Chrift, was reproved
for the fame, he answered, That he denied not God^ hut Man^
iignifying tliereby, that Chrift was only Man, and not God mani-
feited in our Nature.
. '. Theofafchita^ they held that the Divinity of Chrift fuffcrcd. ^^' 5?8.
This Heretic lifted long, and was maintained afterward by Euty-
ches dxidi Diofcorus.
Triformiani^ they held the Divine Nature one and the fame An. 407.
in the three Perfons together, but imperfed: in the leveral Per*^
fons.
TrkheitiSf they held that the Nature and Eftcnce of God was Aa. 606,
threefold, and not one and the fame, yohannes Grammaticns (cal-
lep Pbilopcnus) Was the Founder of this Herefie. ' '■^- ' ' '■
. l^alentinian^ an Egyptian^ he held plurality of Gods, of both An* IJ|»
Sexes i a multitude ot Heavens and Eternities : That Chrift af-
fumed nothing from the Virgin, but pafled through her as by a
Pipe : That he faved Souls only : That the World was made by
Evil Angels : He denied the Refurredlion : Defpifed good Works
as unprohtable, and lived of things facrificed to Idols. Againft
him Irenaus wrote five Book.
Valefii^ of one Valens an Arahian j They held that none could Ao. 250;
be faved, but fuch as made themfelves Eunuchs, detefted Marriage,
but allowed all filthy h^s > yet Gelded themfelves.
Q^q q q Venuftlani^
580 of Here fie
Vemfliani^ (b called of their lafcivious behaviour ^ They were
the fame Hereticks that were called Paterniani from Faternti,^ '
their Founder, and held the fame blafphemous and damnable He- /.,
refie.
An. 405. Vtgilantws^ an Apoftate Monk, he declined Churches, andxron-
demne;d Virginity and Spiritual Exercifes. S:. Hierome wrote a-
.. gainft him*
(p.) All thefe Hereticks do commonly pafs under the notion of
Chrifiian Hereticksy whereas in truth they may more properly be
termed A^ittchnfimn i yet they arc ftiled Chrifiian Hereticks in di-
llindion Co the Jewijh Hereticks^ of which fort were the Pbarifeef^
the Sadducees^tht Heffeesy the Galilaans^ the Hemerobaptifs, the
Naz,areans^ the Ojens^ the Sampfieans^ the MaJ/alians, the Hero-
dians, the Genites^ the Merijjaansjthe CcsUcola^ the Ophit^e or Ser-
f entities^ the Caiani^tht Sethiani^iht Heliognofti^ the Frog'Worjhip-
persj the Accaronites, the TharnHZ^ites, the Samaritans, with many
others, out of which, or Tome of them, came that curfed Brood oif
Hereticks which poyfoncd a great part of the World in the fuc-
ceeding Generations.
ThePbarifees (from Phares-, divifion or reparation,) bccaufe they
. _ . . would be accounted Sepcratills from all others (a)^ attributed all
Origen. Am- * things to Fate i they believed thaf God difpofed all things, but
brof. la Luc. I. the Stars helped, yet fo as Free Will was left in the hand of Man.
^. Damafc. de They held Tranfmigration of good Souls, or going into other
Haref. Suidaf. Bodies ;, They conceived that he which kept moft of the Cora-
^^^. ^ mandments, altliough he tranfgrefs'd in fome, was jult before
£jod^ with innLimerable Pharifaical, Proud and Hypocritical con-
ceits and actions.
; The Sadditcees (either from 5e</^c, Juftice, becaufe they were fe-
(h) Epiph.hsr. yere and rigorous in Judgment (b) i or of one Sadochy the firft
J4. Lyra, in Inventer of their HerelleCO ' or from both (d): ) TheCcSaddu'
u^'htffSicnC. ^ees'wsxc Cd\kd Mmiumot Mine i^ that is, Hereticks. They inter-
Addit.i. in E- pj^^tcd the Scriptures after their own fenTe, and rejedled Traditi-
pift.Jac2.10. ons i they denied a future Reward, and confequently the Rcfur-
(d) Serarius. redlion i They denied alfo the fubfiUcnce Spiritual i They cooped
^0 J"* ° up God in Heaven, without all beholding of evil : They denied
Spirit altogether i for they held God to be Corporeal (e): The
Soul to die with the Body '■> They denied Angels and Devils i They
,-,.. afcribed Good' and evil to Mans Free Will.
] . The Hejfeej, E(Jees or EJJens, either from a word which. iignifi-
(f) Scallg. E- eth Reft, or Quietnefs and Silence f/J, or EjJ^ei^ ejuaji 'Utoi
(7) Ph'uo^.' ^^h ^g)' They are placed by Pliny on the Weft of the Dead
(^)FIin. 15. Sea (/jj, a People folitary, without Women, without Mony, they
b. I?, make no Weapon of War, nor meddle witk Merchandize; they
have
and Heretic ks* 581
> have no Servants, but are all both free and mutually Servants to
each other > they live perpetually chaft, counting continence and
.'contentment great Vcrtues ••> they Swear not at all, and have all
*^ things common \ they avoid Pleafures and Riches as Sins ; they
Marry not, yet do not deny the lawfulncfs of Marriage, but the ho-
nefty of Women j they fliun Oyl and Neatnefs, yet always wear a
white Garment i they neither Buy nor Sell, but mutually commu-
nicate i they were worftiippers of the Sun, for before the Sun ri-
leth they fpeak of no worldly Matter, but celebrate certain Pray-
ersjas praying him to rife i they hate an Oath no lefs than Perjury \
they keep the Books of their own Opinions, and the Names of the
Angels i they give no fentence of Judgment, being fewer than one q) Jofeph. de
liundred {%) j they will not fo much as purge Nature on the Sab- Bell.Jud, 1. 2.
bath, for fear of prophaning it thereby {k). ^- 7*
The GaliUans^ their Do&rine was, that only God was to be ac- ^^^ Scaligcr.
counted their Lord and Prince, and would rather endure any the
mofi: exquiiite Tortures, than call any Man their Lord j in other
things they agreed with the Vbarifees (I), r/) T f hi
The Hemerohaptifisjo called from their being baptized or wafh'd Antial!i8.c.t!
every day at all times of the year i they were in their Dodrine of de Bell. Jud.*
the Refurre^lion, and in Infidelity like unto the Sadducees \ in other I.2.C.7.
things they differed not from the Scribes and Tharifees (m), ^^\ gpjpij.
The Nazar^sans^ they would not eat any thing which had life, hxr. 17.
and held it unlawful to eat Flefh > they difallowed the five Books
and profefTing to imitate Sawpfon^ they nourifhed the Hair of their
Head, placing all their Vertue therein (»). (n) Philaflrius
The Ojfens were an liTue of the Ancient Ejjens^ holding fome de hir.
tkings of theirs, as concerning the worlhipping of Angels, and of
the Sun, adding thereto other Herefies of their own (oj. (o)Z]p]ph.hxT.
The Samffaans would not admit either the Apoftles or the Pro- 19.
phets i they worfhipped Water, efteemed it as a God, believhig that
life is from thence (f). (p) Epiph.h«r,
The MaJJ'alians were a flip of the Ejfees^ but after by Marriage 55.
with fome Vfmdochriflians^ of Jewijh became Chriftian Hereticks
fa), " ' (^) Seal. ele. c
The Herodians thought Herod to be the Meffias^ and entred in- ^^'
to fociety for Cofls and Charges in common, to be bellowed on
Sacrifices and other Solemnities, wherewith they honoured Herod
alive and dead (r). (r^ Seal, ad
The Genites ox Genifis flood upon their Stock and Kindred, be- Eufeb. p.150.
caufe in the Babylonijli Captivity, or after, they married not firange
Wives, and therefore boait themfelves of the purity of Abraham's
Seed is). C^) Bridecb.
Q_q q q 2 The
582 Of Here fie
The MerijJ'aans or Merifis were (as the name imports) fprink-
lers of their Holy-water i they made a diviiion of the Scriptures, and ^
(t) Idem Brel- received only Tome part thereof CO- '.
denb. The CcelicoU were alfo aji Off-fpring of the Effees, ■Sind from thoft ' <
proceeded the Majfalians^^hey were jews, though they corruptly
embraced ChriiUanity, and being baptlied, revolted to their former
Judaifm, and retained the Rites of tliefc CaltcoU or Heaveii-wor-
fhippers 5 they had their places of Prayer abroad in the open Air
(«) ScaI.Elenc. (»),
trib.Serar.c.31 TheO?-5i/^or5r/'pr«f/»f/worfliipped a Serpent, faying, that he
firfi: procuied us the knowledge of Good and Evil, for which God
envkd him, and caft him from the rirft Heaven into the fecond,
whence they expcdt his coming.,efieeming him fome vertue of God,
^Tvj PhilaRr.l. and to be worfhipped (w).
dc H«ref. - The Caianiy which commend Cain for Fratricide, faying, that
Cain was njade of the power of the Pevil, y^^e/ of another power,
(x) PbilaHr. but the greateft power was in Cain to flay Abel (x).
The Set hi am were worfliippers of Seth the Son of Adam^ who .
affirmed, that two Men being aeated in the beginning, and the
Angels dllTenting, the Feminine power prevailed in Heaven ffor
with them they held, are Males and Females, Gods and Goddciles J
Eve perceiving that, brought forth Setk^ and placed in him a Spirit
of great poWer, that the Adverfaries power might be deftroyed.
Of Seth they held, that Chrift fhould come of his Stock i yea, fomc
" 1 ne HetiGgnojp\ were lutn a^ worini^d Ine ^un,ana neia inac tnc
Sun knew all things of God, and yielded all necellaries to Men.
The Frflg-worjhippers werefuch as held, that worftiip was due to
thoie..aoking.- Creatures, thereby thinking to appeafe Divine
wrath, which ii) l*ha}\ioh's time brought Frogs upon the Land of
The Accaronites were fuch asbdd", that \<7orfhip was to be per-
formed unto a Fly, and did worfliip it accordingj^^ •, probably for
the fame blind reafon that others of them worfhipped Frogs i for
Divine wrath was executed by the one as well by the other.
'The TbamwzJites^ of Thamttz,, the Son of a Heathen King , they
held that his Image was to be worfliipped and adored > accordingly
tht. Jewifh Women that were bewitched wif h this Herefie, worfhip-
ped this Image o^Thawuz, with Tears and continual Sacrifices-, and
held further, that Fharaoh which ruled in E^jpt^ in Mofes's time,
was of that name. •♦ \,^"^':
The Samantans were thofe Jei^Tlfh Hereticks, who held Cefpecl-
ally the Cuth^ans among them) an abllinence from pollution by
the Deadj or BoneSjthe Slain, and the Sepulchers i they held waihing
■ . . . tlieii
and Hereticks. 583
4'
their Bodies and changing their Veftments, when they enter into
the Synagogue i they held fuch Heretical Opinions, that the other
fews would have no dealings with them j they held that only the
'^ve Books of Mofes were Canonical Scripture, the reft they re-
ceived not i they held, that neither the Trinity, nor the Puefur-
re(fHon was to be acknowledged , they wafli'd themfelves with U-
rine, when they came from any Stranger, being thereby (as they
held ) polluted •, they . held themfelves prophan'd by the touch of
one of another Faith ; and therefore if they touch'd one of ano-
ther Nation, they div'd themfelves, Garments and all in Water j
they held a dead Corps in abomination prefently {z^). If they met f^) Epiph.
a Jew or Chriftian, they faid Touch me not {a), ' They call them- hxr. 9.
fclves, Mefi whtch btlong to the Blejjy Mill: Tl-iey.abftaincd from C^) gruf. dc
things that have Life, and fome of them from Marriage. ' One 3'Sc«« -2.
Dofitheus a Samaritan is fuppofed to be the firft Founder of the
Samaritan Hereiics, and the firft among them that rejeded the'
Prophets, as not having fpoken by the Holy Ghoft (h). There were
fourScds of Samaritan Hereticksjaccording to Epiphanius, each of fcrlp.^adverQ*
them holding their different Herelies in fome refpeds, and having H^rJ. i.
in other refpeds certain Heretical Teneuts common to them all.
By all which PremilTes it is moft evident, that the Prince of Dank'
nefsmd the Father of L;Vj, hath had in allAges,. Natiohs aiid
Churches, his EmilTaries to iiifed them with Heretical and Blafphe-
mous Errors i but the G^tes or Powct of Hell to tliis 4ay iJ^vejp .
could, uor to Eternity ever (hall prevail againft the Truth.
■(;.•: 1:.
CHAP.
584
C H A P. XLL
Of Councils, Synods, and Convocations,
u The fever al kinds of Councils and Synods.
2. JVhat Canons in force in the Realm of Primo Ed. 6. Alfo how
the Canons entituled Reformatio Legum Eccletialticarum became
abortive.
3. That fart of the Canon La'w^ is fart of the Law of England.
4. Convocation in England, what^ h»w, and by what Authority,
and for what ends convend '■> alfo of what Members it doth
conjifi ^ with the Authority thereof.
5. Convocations and Provincial Synods of very great Antiquity in
England', have been ever called by the Kings Writ't their Pri'
viledges*
'^, The Canons and EccleJiaBicalConfitutions way not be refugnant
either to the Kings Prerogative, or to the Laws, Statutes, or
Cufioms of this Realm,
7. Lindwood*/ Method of Provincial Synods in this Realms and
under what Archbijhofs.
8, The four fever al kinds of Councils and Synods in general.
<?, A compendtous Catalogue thereof, when and where heldt by and
under whom conven d. with th" *<"'--•■
Ci ) y^ F Councils or Synods there are four kinds, x^i^. i. Oe-
I I cumenical, as being called out of divers Nations.
■ V-/ 2. National, as out of divers Provinces i both thele
kinds of Councils or Synods were ever aflembled by Imperial, Re-
gal, or Papal Authority. 3. Provincial, as out of divers Dioce-
fes, conven'd by Metro folitans or Patriarchs. 4 Diocefan, zs out
of one Diocefs only, aflcmbled by the BKhop thereof. The fre-
quent celebration of Synods the Council of Bafil caMs fractfuam
agri Domini cult ur am. Touching Synods vid. Duar.de facr. Eccl,
minijh. & benefic,
(2.) In the Reign of Km^ Hen. 8. the BiOiops and Clergy in
the Convocation An. 1532 oblig'd themfelves neither to make
nor execute any Canons or Conftitutions Ecclefiaftical, but as they
were thereto enabled by the Kings Authority •, it was by them de-
fired, byhimaflentedunto, and conhrm'd in Parliament, that all
fuch Canons and Conftitutions, Synodal and Provincial, as were
before
0( \
Of Councihy Synods^ &c. 585
before in ufe^and neither repugnant to the Word of God.the Kings
prerogative Pvoyal, or the known Laws of the Land, (hould remain
V in force until a Fteview thereof were made by thirty Perfons of the
-=, Kings appointment •, which Review not having been made from
that time, to the hril year of. King Edward 6. All the faid old Ca-
nons and Conftitutions fo relkained and qualified, did then ftiU
remain in force, as before they were.. For this confult the Adt of
Parliament of 2 5 //. 8. c. i. And in the third year of the faid King
Edw.6» there paiTed an k€i in Parliament, For enabling the King to
nominate eight Bijljops^ and as many Temporal Lords^ and Jixteen
Members of the Lcwer Houfe of Varliament^ for reviewing offuch
Canons and Confiitutions, as remained in force by 'virtue of the Staf.
T^Jade m the 2 <^th year of King U..^. and fitting them for the ufe of the
Church in all times fucceeding. According to which A<ft the King
diredted a Commillion to Archbifliop Cranmer^ and the reft of the
Perfons whom he thought fit to nominate to that employment »
and afterwards appointed a Sub-Commitee of eight Perfons to
prepare the work and make it ready for the reft, that it might be
difpatch'd with the. more expedition : Which faid eight Perfons
were the Archbiftiop o( Canterbury ^ Vx. Goodrich Bilhop of Ely^
Dr. Cox the Kings Almoner, Feter Martyr Dr. in Divinity, William
May 8c Rowland Taylor Dodlors of Laws, John Lucas & Richard
Goodrich Efquires v by whom the Work was undertaken and dige-
gcfted, fafhioned according to the method of the Roman Decre-
tals, and called by the name of Reformatio Legum Ecclejiaflicarum^
&c. But not being Commillionated hereunto till the i j of No^
'vemberin the yean 551 they either wanted time to Communicate
to the chief Coramillioners, by whom it was to be prefented to the
King, or found the King enaimber'd with more weighty Afltairs,
than to attend the per ufal thereof. And fo the King dying before pr. ;^w.H{ft.
he had given life unto it by his Royal aftent and lignaturejthe deiign Eccl.dc Temp,
mifcarried i and never fince thought fit to be refumed in the fol- EtK <5.p. ip.Se
lowing Times byanyof thofe who had the Government of the ^5'
ChurchjOr were concerned in the honour and fafety thereof.
(S.) It is afferted by good Authority, That if the Canon Law c^tcildesvcrf,
be made part of the Law of this Realm, then it is as much the the B.of oxj.ia
Law of the Land, and as well, and by the fame Authority, as any f^^'^'"^
other part of the Law of the Land. Likewife in the Cafe of Shute p^^„ ^'
againft Higden^ touching Voidance of a former Benefice by being
admitted and inftitutcd into a fecond, and that by the Ancient
Canon Law received in this Kingdom. 77//^ (fays the fame Au- * Lawful ; It
thority) ,s the Law of the \imdem mfuch cafes. And in tlie Cafe f ffl' ^/' ^"P"
ot Hill againft Good the lame Author doth further allert, ibat a "^ ceived into ufe
Lawful Canon is the Law of the KingJom^ as ivdl as an Acl of and praclice,
Varlia-
58^ Of Councils^ Synodsy
Varliament : And vjhatever is the Lav/ of the Kingdom^ is as much ,
the Law^as any thing elfe is fo , for what is Law doth not fufcipere
(d) S\r yohn magis & minm {a). Which PremiiTes, though they may fecm, yeH^^
.Viiughant are not inconilftent with what Sir £iu'. C^^e fays, 'viz,. That thc't;*.'
Rep. Arg. j^^^^ oi England 2SQ not derived from any Forein Law, either Ca-
non, Civil, or other, but a fpecial Law appropriated to this King-
(ijCo, Infl. dom {b): That it may be (aid of its Law as of its fituation, Et
!>.§ cap. 3 5. fenitm tcto divifos Or be Britannos.
C4.) Convocation is the highell Ecclefiaflical Court or AiTembly,
called and convened in time of Parliament by the Kings Writ,
diredled to the Archbifliops, conlifting of all the Clergy of both
Provinces, either Perfonaliy or Reprefentatively prefent, in the
Upper Houfe of the Archbifliops and Bifhops, and the Lower
Houfe of the other Clergy or their Prod:ors, chofen and appointed
to appear for Cathedral or odier Collegiate Churches, and for the
Common Clergy of every Diocefs, with a Prolocutor of each
Houfe , and Prelident of the Convocation for the Province of
Canterbury^ to confult of matters Ecclefiaftical, and thereon to
treat, agree, confent and conclude (as occalion reqwiresj on ceffain
Conftiturions and Canons Ecclefiaflical, to be ratified and confirmed
(i) F.N.B. ^y ^^^ Royal aflent (c). They weie anciently called Chrtrchge-
2(5$>. b. r»ote. Int. Le^es. H, i.e. 8. Tlie Convocation is under the power
Co. Infl. r. and Authority of the King, 21 Ed. 4. 45. b. Aflembled only by the
Seft^ijj. Kings Writ, 13 Ed.^. Rot.VarL M.i.vid.Stat. 25 H.^.c.ip. The
32 H.8.*22. ^"^§ having direded his Writ ( therein affigning the time and
35 H.8.?i*. place J to each of the Archbifhops to the eifed aforefaid, the
Co.Inft.p.4. Archbifhop of Canterbury doth thereupon diretft his Letters to
Co 74. j.}^g Bifhop of London^ as his Dean, Lindiv. Trovin.feB.i. de Vxnis
'ver. Tanquam in GloJ/'. Firft citing himfelf peremptorily j then wil-
ling him to cite in like manner all the Bifhops, Deans, Archdeacons,
Cathedral and Collegiate Churches, and generally all the Clergy
of his Province to the place at the day in the faid Writ prefixed ■•>
withal dircdling, that one Prodtor for every Cathedral or Colle-
giate Church, and two for the other Clergy of each Diocefs may
fuf^ce. In purfuance whereof the Bifhop of London diredls his Letters
accordingly, willing them to certifie the Archbifhop the Names of
all fuch as fhall be fo monifhed by them, in a Schedule annexed to
their Letters Certificatory h whereupon the Cathedral and Colle-
giate Churches, and the other Churches having ele6led their Pro-
ttors, it is certified to the Bifhop, who makes due Pveturns thereof i
which method is likewife obferved in the other Province of Tork,
(d)2i R.2, It is faid, Thatthefe Prodors anciently had place and Vote in the
Cowl *f ' Lower Houfe of Parliament T^/) •, a good expedient for the mainte-
•x^etcPr odors', i^^i^ce and Prefexvation of the Liberties of the Church. The Pro-
locutor
and Co7iz>ocations, 587
1
^^'
ocutor of the Lower Houfe of Convocation, is immediately at the
jrrt AfTembly by the motion of the Bifhops, chofen by that Lower
ou(e "j and prefented to the Bifhops as their Prolocutor, by whom
"^^hcy intended to deliver their refolutions to the Higher Houfe,and to
have their own Houfe fpecially ordered and governed : His Office is
to caufe the Clerk to call the Names of the Members of that Ho jfe as
oft as he (hall fee caufe i likcwifc to fee all things propounded to be
read by him, to gather the Suffrages or Votes, and the like. Trin. 8
Jac. It was refolved by the two chief Juflices, and divers other Ju-
stices at a Committee before the Lords of Parliament, concerning
the Authority of a Convocation, (i.) That a Convocation cannot
AfTemble without the AfTent of the King. (2.) That after their
Affembling, they cannot confer to confiitute any Canons without
lActrnt del Roy, (3. J When upon Conference they conclude any
Canons, yet they cannot execute any of them without the Royal
Alfent, (4.) They cannot execute any after Royal AfTent, but with
thefe Limitations, 'viz,.{i.) That they be not againft the Kings Pre-
rogative : (2) Nor againft Statute Law : (3) Nor againfi the Com-
mon Law : C4) Nor againft the Cuftoms of the Realm. All which
appears by 2 5 H 8.c. i p. i p £.3 . Title Quare non Admifit^'], i o H,
y.i'J,Mertonycap.p. — By 2 H.6. 13.3 Convocation may make Con-
Ititutions to bind the Spiritual ty,becaufe they all in perfon, or by re-
prefentation are prefent, but not the Temporalty. ^. And 2 1 Ed. 4. Q..
47. the Convocation is Spiritual, and fo are all their Conftitutions. T""' ^ J**^'
Fid. The Rccordsiw Turri, 18 H.8. 8 Ed. i. 25 E.I. 1 1 £^. 2. 15 ^^^^'^'^^^o"'
Ed.2. Prohibit to Regis ne Clerus in Congregatione fua^ d^c. attentet
contra jus feu Coronam,, (^c. By which it appears, that they can do
nothing againft the Law of the Land, or the Kings Prerogative.
C5.) The word [_Convocation\ and the word \_Synod~\ arc rather
words of two Languages, than things of two iignifications » for
although they have different derivations, the former from the La-
tine^ the other from the Greeks yet in effe*^ they both center in the
lame thing. Convocation a Convocandoy becaufe they are called
together by the Kings Writ. It is of very great Antiquity
according to Sir Edward Coke, who mentions out of Mr. Bede Coke lib. 12=
and other Authors and ancient Records, fuch as were nigh a ^°* ^^^' P*4'
thoufand years tince, and more exprefly of one great Synod held (d)'mwburgh
by Aufiins Affembling the Bri^^w Bifhops in Council, An.6%6. (d). l.z.c.i?.Braft.
And aifiirms. That the Clergy was never affembled or called to- 1-3.^125,124.
gether at a Convocation, but by the Kings Writ (e). And in f^^' ^g/^pj^
the year 727. there was a Convocation of the Clergy called ,3 Ed.^.nu. i.
& Ror. Par.
2 H.4.nu.29. F.N.B. 259. 8 H.5.c.r. Co. Tnft.pag.g.cap.74. (0 18 Ed.3 nu.i. 13 Ed.3. Ro?,
Par.id. 24Dorr.Clau. 18 £d.3.nu.3o.3i.25H.8.i.
R r r r Magna
(^88 Of Councils^ Synod^^
Magna Str^vorum Dei frequent i a C/). Tt was by the alliftance and
C/; lot.Legcs authority of Ethelbert, the firft Chriftian King of Kent, that AuftfriL '
CaliKpr. called the aforefaid AlTembly of the 5nY//7; BiOiops, and Doaors^-
, that had retained the Doctrine of the Gofpel, to be held in the '
Borders of the VtBians and JVefi-Saxons^zhout Southampton, as Tup-
pofed, to which reforted ( as Mr. Bede fays ) Seven Bifhops, and
many other Learned Divines ^ but this Synod or Convocation fud-
(g^Bede Hifl. denly brake up without any thing done or reiblved ig). This AC-
1. 2. c. 2. fembly was conven'd for determining the time for the Celebration
Gj/fr/i.l.8.c.4. ^f Eafier ; touching which the Controverfie continuing no left
than po years after, was at lali concluded at another Convocation
purpofely called at Whithy by the Authority of O/u'^ King oi Nor-
thumberland, and whereoV the Reverend Czdda^ newly confccrated
Bifhop, was Vrolocutor, and King Ofwy himfelf prefent at the Ai^
(h) Bidi Hifi. fembly (^). Likewife about the year 1172, at Cajfils mlreiar'^s.
lib 5.cap.2 5. Convocation was held by Authority of King H. 2. foon after he had
conquered that llland, which Convocation was for the Reformation
of the Irif} Church, where amongft many other Conftitutions it
was Decreed, That all the Church-Lands, and all other VojJ'ejJlonsy
jhould be altogether free fom the ExaSlion of Secular men, and
that fom thenceforth all Divine things Jljould be handled in every
part of Ireland in fuch Jort, as the Church of England handleth
them (i). Likewife about the year 1175. ^t London a Synod or
Y^G^Yd.Qsm. Convocation was held, at which King H. 2. was prefent, where.
ic\i. among other Canons and Conftitutions, it was both by Authority
of the King and Synod decreed, That every Patron taking a Re-
ward fr any Prejentation , jJwuld for e^er lofe the Patronage
, , . thereof (k). Which together with other Canons then made for the
H2.fo.210'. better Government of the Church of England, were publifhed by
(t) Girvafius Richard Archbilhop of Canterbury, with the Kings AiTent (I),
Rog. Hived. Likewife a Provincial Synod was held at Oxford by Stephen Lang-
ton Archbilhop of Canterbury under King H. 3. about the year
{m) wdfingh. J 212. for Reformation of the Clergy (wj, with many others,
in Ypod. in fubordination to the Laws of rhe Land. One fpecial Priviledgc
Ravulph.cejir. ^f the Convocation appears by 8 K. 6. cap, i. Jll the Clergy
■>-• 'A' fom henceforth to be called to the Convocation by the Kings Writ,
and their Servants and Familiars jhall for ever hereafer fully ufe
and enjoy fuch Liberty and Immunity in coming, tarrying^ and
returning, as the Great men and Commonalty of the Realm of
England, calledor'to be called to the Kings Parliament, have tifed
or ought to have or enjoy, 8 H.<5. In Parliamento Statutum eft, ut
Pralati atque Clerici, eorumque Famulatus cum ad Synodos accef-
ferint, iifdem Vrivilegiis ac Immunitatibus gaudemit, quib^fs] Mi*
lites & Btirgenfes Parliament i. Ant,Bnt.i0.2 84..nu.30.
(6.) The
and Convocations, 58^9
> (<^0 The Jurifdidlion of the Convocation in this Realm, though
relating to matters meerly Spiritual and Ecclefiaftical, yet is fubordi-
.^j^ate to the efiablilhed Laws of the Land i it being provided by the
%^tatute of 25 H. 8. c. ip, "that no Canons, Confiitut'fojTs, cr Orcli-
nances fliall be made or fut in execution within this Realm by Aw
ihority of the Convocation of the Clergy \ repugnant to the Preroga-
tive Royal J or to the Cufioms^ Laws cr Statutes of this Realm. To
the fame effed was that of p Ed,i. Rot.Parl.Mem.6. Inhihitio Ar-
chief ifcofo^ ^ omnibus Epifcopis^ d^ aliis Vnelatis apud Lambeth
Conventurisj ne aliquidfiatuant in prajudicium Regis Coronam^vel
dignitatem. For although the Archbifhop and the BiOiops, and the
reit of the Clergy of his Province, afTembled in a Synod, have power
to make Conftitutions in Spiritual things, yet they ought to be Af-
fembled by Authority of the King, and to have ( as aforefaid ) 2^°^^^;,/ '^'
his Pvoyal AfTent to their Conftitutions i which being had and ob-
tai-:ed, the Canons of the Church, made by the Convocation and _
the King, without Parliament, (hall bind in all matters Ecclehaftical, * ^ . • .if"
as well as an Ad: of Parliament, as was Refolved in Bird and Smiths r^^ ^-^.^,
Cafe («). Although the Saxons^ who founded and endowed moft ^mith.
of our Churches, and made many good Laws in reference to the Mores [i
Jurifdidion, Power, and Privilcdges thereof > yet the Royal Prero-
gative, with the Laws and Cuftoms of the Realm, were ever fo
preferved, as not to be invaded thereby i King t^thelbert the firft
Saxon King, King Ina^ zy£thel(iane^ Edmund^ Edgar ^ and King
Kanute, all thefe made Laws in favour of the Church, but none
of them ever entrenched on the Prerogative of the Crown, or on
the Laws, or Cuftoms of the Realm > nor were any of thofe ancient
Church-Laws ever made without ^the fupream Authority to ratifie
and confirm the fame.
(y.) The Laws and Conftitutions whereby the Ecclefiaftical
Government is fupported, and the Church of England governed,
are the General Canons made by General Councils, alfo the Arbi-
tria SanBorum Tatrum^ the Decrees of feveral Archbiftiops and
Biftiop^, the ancient Conftitutions made in our feveral Provincial
Synods, either by the Legates Otho and Othobon^ or by feveral
Archbifliops of Canterbury. All which by the 25 H. 8. are in
force in England^ fo far as they are not repugnant to the Kings
Prerogative, the Laws and Cuftoms of England. Alfo the Ca-
nons made in Convocations of Later times, as Vrimo yacobi Regrs-,
and confirmed by his Regal Authority : Alfo in Ibme Statutes Ena-
ded by Parliament touching Ecclefiaftical Affairs, together with
divers Cuftoms not written, but in ufe beyond the memory of
Man; and where theie fail, the Civil Law takes place. Among
the Britain Councils Caccoiding to Bilhop Tridaaux his Synopfis of
R r r r 2 Councils^
5po Of Councils^ SynoJsy
Councils, Edit. 5.) thefe amongft the reft arc of moft remark, «
f /z,. At WincheHer, in King Edgars time under Dmftam : at Oxii^
ford by Stephen Langton hicWii^'^^ oi Canterbury; at C/mW At
don under King Henry the Second. The Council under King £V> i
ward the Sixth, in which the nine and thirty Articles of the En-
^///?j ConfejTion were concluded and confirmed. The Synod under
the fame King, from which we receive the Englifj Liturgy which
now we have, compofed by Seven BiOiops and Four Doa:ors, and
conhrmed by the publick confent of the Church, which ( as alfo
the (aid nine and thirty Articles) the fucceeding Princes, Queen
Eltz^^beth, King James, and King Charles, ratified and com-
mended ro Pofterity. At London a Synod, in which 141 Canons
orConftitutions, relating to the pious and peaceable Government
of the Church, prefented to King James by the Synod, and oon-
hrmtd by his Regal Authority, and at Fertb in Scotland, where
were Articles concerning Adminiltring the Sacrament to the Sick
Private Baptifm where Neceffity requires. Confirmation, admitting
teaivals, kneehng at the Receiving the Sacrament, and an allow-
ance of Venerable Cuftoms. But de Condi. Brit an. vid. D. S pel-
man. The Ancient Canons of the Church and Provincial Confti-
tutionsof this Realm of England, were according to Lindivocd
the Canonift ( who, being Dean of the Arches, compiled and ex-
plained the lame in the time of King H. 6. ) made in this order
or method, and under thefe ArchbiOiops of Canterbury, viz.. The
Canons or Conftitutions.
i.Oi Stephen Langton, Cardinal, Archbifliop of Canterbury,
?a^^^.?T^.'m,^^''^' '" the year of our Lord 1222, who
dilhngudi d the Bible into Chapters.
2 Of Of^^ Cardinal, the Popes Legate In ^«. 1 2 3 6, on whofe
Conftitu tions 7.^« de Athon,Dt. of Laws, and one of the Canons
ot Lincoln, did comment or glofs.
3. Ot Boniface hxchU^o^ of Canterbury^ 12 do.
A \y Pli'^f''' Cardinal of Saint Mrian, and Legate of the
Apoftolical Chair ; On whofe ConlHtutions the faid John de Athon
did hkewife Gloifematize. His Canons were made*^at London in
Anno 1205.
I. u ^i7''f>'''^''^b'^^-> Archbifliop of Canterbury; at a Synod
ncid at Keadmg, Anno 127^,
128',.^^ the fame P.a^^;;,, at a Synod held ^a Lambeth, Anno
7. Of Kobm Winchelfey ; Archbifliop of Canterbury, Anm
tj>05, j^
8. Oi
and Ccni/ocations, 5^r
8- Of Walter Reynold^ Archbifliop of Canterbury^ at a Synod
v> held at Oxford, An, 1322. Thefe Conftitutions in fomc Books are
^< afcribed to Simon Mephaw, but erroneoully , for the date of thefe
""'' Conftitutions being An. 1^22. the faid Walter Reynold C according
to the Chronicle) died in An. 1327. and was fuccccded by Simon..
Mefham*
p. Of Simon Mepham Archbifnop of Canterbury, y^w.1328,
10. Of John Stradford^ Archbifhop, An. i$...
11. Of Simon IJlepey Archbifliop, An. 1^62.
12. Of Simon Sudbury, Archbifhop, An. 1378, ,
13 Of Tho. Arundel, Archbifliop, at a Synod or Council held chancellor, hi
at 0.v/bri, ^». 1408. Tivas bthtadecL
' ' . by the Rebtls
14. Of Henry Chichly, Archbifliop, An. 1415. «/ Wat.Tylcr»
1 5. Of Edmund, Archbifliop of Canterbury, ^^^ ^^^^^
16. Of Richard, Archbifliop of Canterbury. Chichlcy.
The Dates of the Canons or Conftitutions of thefe two hd^Lind-
vwod makes no mention, by reafon of the uncertainty thereof: but
withal fays, it is clear, That Richard did immediately fucceed the
forefaid Stephen Langton ^ and the faid Edmond fuccccded Richard,
Lindw.de Voen.c.ad hac.^injra, m 'verh.Mmime admittatur. If
fo, then it was moft probably Richard Wetherjhed, who was Arch-
bifliop of C<?»ffr^«)7, An. 1229. And St. Edmond Chancellor oi
Oxford, who was Archbifliop of C<2«f€rW^, An. 1234. (r),
(8.) Councils were either General., ox Oecumenical from o/Kafxersf
whercunto Commiflioners by the Emperors Authority were fent (>') ^ol. Hift.
from all quarters of the World, where Chrift hath been preached ; T^'^''" '^*"»"''-
Or National : or Provincial : or Particular, by BuUenger called
To-rnvJ: } fuch were the Councils of G^»^r^,N(fo-C^/^r^rf, and many National an
others, commonly Aftembled by Patriarchs and Bifliops in fome fuch as cm-
particular place of a Country. The ends of thefe Councils chiefly /"'^^^«^ tht
were, either for the fuppreilion of Harefies,x\\t decifion of Contro- J'*'''^'^"'»^-f «/
verfies, the appeafing of Schifms, or the Ordaining of Canons lUan or Di'oct-
and Conftitutions for decency of Order in the Church. Vid. fan Bi(hop
it/£lfici Canones ad Wuljinum Epifcopum, Can.:^^. where it is laid, i^^thinthiir
That there were four Synods for the defence of the True ^^'^ ^'"^'^^'
Faith againft thofe Hereticks, who bckhed out tlicir Blafphe-
mies againft the Holy Trinity, and the Huniane nature of our
Saviour , the Firft whereof was at Nice', another after that at
Conft antimple, con^i^m^ of an hundred and. fifty Bifliops : the Third
at Ephefus, of two bundled Bifl-iops •, the Fourth at Chakedon,
where
5^2 Of Councils^ Synods^
where many hundreds of BKhops were prefent i and they all with «
an unanimous Confent conrirmed all thofe Decrees which were ,
made in the Nicene Council. Thefe four Synods C fays the faid Ca- ,*^-
non ) are fo to be obferved by the Church of Chnfi^ ui Quatuor '^^ 'j
Chrifii Codices. There were many other Synods about the fame
time, but thefe four were of the befi Authority.
Atjirufalm. ^^ Jernfalem in the Firil: Century the ApotlleSj Elders, and Bre-
Cenc. I, thren held a Council againft fome Pharifees, touching Circumctfion^
in the Fourth year of the Reign of the Emperor Claudius, The A-
poftles celebrated alfo certain Councils for the kibdituting of Mat-
thias in the place of Judas ^ AB. i . For the Eledtion of Seven Dea-
cons — Jcl.6. Fpr not prelling the Ceremonial L^w^Ai:!. 1 5.1 1.. For
the toleration of fome legal Obfervations only for a time, AB.2 1 .1 8,
To thefe fome will have to be added a Meeting l)y the Apoftles,
wherein was compofed the Apoliles Creed. AKb another Alfembly
of the Aportles, which did obtrude to the Church 85 Canons under
the notion of the Apoftles Authority, concerning which there arc
various Controverfies. In this Century there were alio two Synods
fummoned in A/ia, for the Reformation of the Churches, and
Confecration of Bifhops, at which yohn the Evangelift was pre-
^ fent. Eufeb.lib.^.caf. 20, '
At Ancyra ^' Ancyra'wi Galatia in the fecond Century was Affembled a.
Cent. 2. Synod of divers Bifhops, wherein the Figments of Mont anus were
confuted. In this Synod Mcntanus was excommunicated, and his
Heretic condemned. Eufeh. lib. ^. cap. 14. In this Century, 'vlz,.
An.ip"^. Six feveral Synods were held about the Obfervation of
Eafier^ 'viz,. At Rome |in Vigors time ; at Cafarea in falefiina :
at Font lis in France., where Irenaus was chief ?> in Ofirecna and
at Epbefus. In all which Synods it is obferved, That the Birtiop
of Rome had no more Authority than the other Bifliops. Eufeb,
lib. <$. cap. 23.
Eufeb 1 <5.c.5!2. ^" ^^^ Third Century there were eight or nine Synods of remark,
At Bofira/" '^^^' At B<9/?r<3', where Beryllus wzs confuted by Origfw : ztRome
Cent. 3. in the time of F^^/<^«//j-, where the Schifm o(Noz>atus was removed ;
another at Rome in the time of Cornelius., wherein ^Novatm the
Ibid ^'^"*^* ^^"^^^^^^H was condemned ;, 3it Antioch., where Novatus was con-
Ibid.'lib.7*2. demned again i at Carthage^ which erred about the Pve-baptizing
Ibid. c. 6. of Hereticks : at Iconium, for receiving of Hereticks after Repen-
tance : at Antioch again, where Samofatenus was condemned '-, this
Ib'd 6 ^^^s^^O'J^ fh^T'w^'^fh yearofGj//^«//i-: Another at the fame place
58 29. ' '^''^d^'^ ■^^^^^^'^^^•^j where he was condemned again, and deprived of
his Church. And at SinueJJaj conillling of 300 Bilhops, where
Marcelllmis Bilhop of Rome was condemned for denying Chrify
and faciiiicing to Idols, Tom. 1 . ConciL
At
and Conuocatio7is, 5P^
' At Ancyra in the Fourth Century, about the year 208. were /i^.^ ^.y
\p affembled Bidiops of divers Provinees, to conftitute a form of Ec- Ccn.^.An.gcS.
,^r clefiaflical Difcipline, according to which they who had Sacrificed
^^^ to Idols in time of Per{ecution, were to be received again upon
their Repentance. In this Council alfo it was ordained i That C/jo-
repifcopii that is, Country-Bifhops, or Vicarij EfifcofontWy fliould
abftain from Ordination of Elders and Deacons, and from ufurping
of Dominion over the Preaching Elders, who were in Cities. This
Council was fubfcribed by Eighteen Biihops.
At Nicea in Bythinia^ Allembled by the ^wxhoniyoiConfiantine TFre firf} ac
the Great, a General Council, coniifting of 3 1 8 Bifhops : The ex- Nice^ hn\io.
a(ft time when it began Hiftorians do not agree/ome conceive it was ^'^ ^il-
y^.D.325. So HtlIar.Socort.l,2.c.2p. Others 355?. So Baron. N. 27.
Others 330. and others refer the year to 333. EuLt Eufehtus com- Eufeb.devha
puteth it to be in the twentieth year of Confiantines Reign. It was conftm. lib.2,
alfo in the time of Julius the Firft, and Silvefier, Popes. Three
things efpecially are reported to be condemned by this famous Coun-
cil, I. The y4n<!7» Herefie, Blafphemoufly denying the Son to be
Go-eternal and Co-eflential with the Father. 2. The dilTent of the
Eallern from theWefternChrifiians about theCelebration of thePafTo-
ver, in a manner different from the Je^vi^j Cufiom i and it was
concluded in this Council, That the Feaft of Eafier (liould be kept
on the Lords Day, and not on the Fourteenth day of the Firl\ Month
ofthe jF^w^j, called Nifan, 3. The Schifmatical difTentions of the Ruffin.i. c.6.
Melitians and Novatians.lw this Council the Emperor burnt all the
Accufations which the Biihops brought againft each other i as un-
worthy to be ktw. Of this Council it is anciently Recorded, That'
Conflantinus Imperator congregavit in Nicaa Cfoitate 3 1 8 Efif-
copos ex omnibus Nationihus ad Confirmandam fidem Catl)olicam.
Ita in T'ertio Can, zy£lfrici ad JVuljin. Epifcop.
At Tyrus in the Fourth Century was conven'd a National Council \ ^
by Confiantine the Emperor, in the Thirtieth year of his Reign, cent. 4,'
wherein were 60 Biihops from Egypt^ Lybia, Afta and Eurapt j
the major part thereof were Arians^ who charging Athanajitfs with
falfe accufations, depofed him in hisabfencei whofe Depolltion Ar-
fenias fubfcribed with the fame hand, which the Avians alledged Socrar,
was cut oft by Athanafius.
At Gangra in Taphlagonia about the year 324. were afTembled . _
~ about fixteen Fathers •> In which Council were damned the heretical ^|,^ tiff' ■
Opinions of Eujiathius ; who admiring the Monafiick life, or fa-
vouring the Herefie of Eucratia and the Manichaans, fpake againil:
Marriage and eating of Flefh, and damned thei publick Congregati-
ons for the fervice of God in Temples, faying, a man could not he
faved unlefs he forfook aU his pojjefions, *
About
55^4
Of Councils^ Synods^
At Antiech,
At Arlfs.
At Eli bin's.
At Carthage,
CoQciUTo. I.
At Antioch.
AQD.34o,or
344»
About this time there was a Council at Antiocbtay wherein the
Arians depofed Eufiatius, As alfo a Council at Arlesy wherein^
Cecilianus was abfolvtd from the Accufation of the Donattfis.
At Elibiris in S^a'tn in the time of Confiantines Reign, were a(r
fembled ip Bifhopsand 36 Presbyters. Among the 81 Canons made
in this Synod, it was Ordained in the 36 Canon, That nothing
that is worjhi^fed Jhould be piBured on a Wall, and that in Private
Houfes no Idols jhould be found*
At Carthage^ the Firft Council there ( wherein St. Cyprianyiiihi
the Advice of many other Biftiops of Numidia, Lybia, and other
parts of Jfi-icUi Ordained thole who were baptized by Hereticks,^
to be rebaptized ) was not held under the Reign of Confia?;tine,
for that St. Cyprian was Martyred in Valerians days, the Eighth
perfecuting Emperor ; but the hrft Council at Carthage held in
Confiantines days, was that wherein the Donatifis condemned Ce-
cilianus Biftiop oiCarthage^ whofe innoccncy was made afterwards
to appear.
At Antiochy the Firft Council there was held by Arians under
the Reign of Co«/<«»ri«/, Son of Con^avtiney in the year 340 or
344. This being one of the Councilsj which cither determine
Heretical Opinions, or raife up Schifms and Troubles to the di(-
perling of the Chriftian Flock, doth not undefervcdly pafs under
the name or notion of one of the R ejected Councils. To this
Aflembly reforted po Bifhops, under pretence of Dedicating the
Church of Antioch^ built by Confiantine-, when in truth their prin-
cipal defign was to cjed: Athanafius out of his Chair, and to Tub-
vert that Syftcm of Faith, which was fet down in the Ntcene
Council. This Council o{ Antioch is to be diftinguiflied from five
others which Bellarmine reckons j Longus doth alfo name this, and
mentions other Councils of Antioch. But this Council is referred
to the time oiConflantius^ and yulius the Firft. Athanajlus being
reftored from Banifhment by Conftantius^ the Son oiConfiantim
the Great, the Arians declare it to be unlavvful, because the fame
Authority which did eje<fi:, muft reftore i This matter therefore be-
ing referred to Pope Julius^ he fummons the Synod to appear at
Rorrn. But the Eufebians, chief of the Hereticks, that they might
avoid this, did without much difficulty feduce Confiantius to be
at the Confecration of the Magnificent Temple built by Confian-
' tine the Great at Antioch '-> where were met about po Bifhop?,
as aforefaid, 30 whereof being Arians^ the Favour and Autho-
rity of the Emperor, againft the double Suffrages of the Ortho-
dox procured the condemning of Reftored Athanafius. It is faid
of this Council, That they did fet forth a Form of Belief fo inter-
^mixed with Truth and Error,
that he which is heedful left he
be
and Convocations. 5^5
be deceived, in his greated warincfs can fcarcely be (afe, for By the
^jDmiflion of what might eflablifh the Truth, they weaken that which Socrat. l.a.Cf.
'*(fthey undertake to maintain. To this Council probably may be re- At^^^^J*^'^'
fer'd Two other Councils, which fomc report to have been held alfo An. 548. '
^tJntioch about the year, 348. the former whereof was occalioned
by the favour, which Julius Bifhop of Rome (hewed to Atbanajius
Bifhop of Ahxaitdria^ and other Bifhops. In the other the AnaHs
did fet forth a new Sum of their Faith, which being fent to the
Bifhops of Italjy wasrefufed by them,adhering to that of the Nicenh
Council.
At 5<?Jv//> in 7///r/V«w in the year, 351. by the Command ^^ ^x SifdU
Confiantiui and his Brother Confians a great National Council was An. 95 r. *
affcmbled, confiftingof 375 Bifhops, whereof Three hundred were
from the Wefl, and Seventy iix from the Eaft, from Thirty five
Provinces in all. The three hundred Wcftern Bifhops confirmed
the Nicene Citcdy to this end, Thzt At hana/ius^ who was banifh-
ed Rome for the fpace of three years, fhould be reftored to his Place
at Alexandria i but the other Seventy fix Avians meeting at
Philippolts confirmed Arianifm under the Title of the Council of
Sardis, In this Council by reafon of the Anan F'adlion, and from
thence forward, were added different Affcd:ions to different Opi-
nions. In this Council, which is commonly called an Appendix yid. Bifh. Vri-
to the Frifi: Nicene Council, were ratified 2 1 Canons under Pope diaux Syoopf.
Julius, ofCounclIs.
ki Sirmium in lUyria^ in the year, 355. by Command of the ^t s/rw/«w
Err\Y)nor Confiafftius a Council was hdd, where were prcfent, be- An. 356.
fides Eaftern, Three hundred Weftern Bifhops and upwards, for
the hearing and deciding the Caufe of Thotius^ who complained
to the Emperor, that he was unjufily condemned at the Synod of
Sardis^ although he had preached that Chrifl was meer Man, aaid
mferior to his Mother. This Council zt Sirmmm (0 groaned uri- Dift. Synopf.
der the Avian Tyranny of Conjlantius^ that the Supremacy and
Prefidentfhip of Pope Liherius dared not to appear ; Thocius Bi-
fhop of Sirmium having renewed the Herefies of Sahellius and
Samofatmus : Of this Council ( faith Longus ) there is nothing vid. Sdcrar.
extant belidcs Three Forms of Belief, which arc found in Binius. J: '* *^* ^|'
In this Synod there was a hot Difpute between Bafilius Bifhop of ^^ &'($**'
Ancyra , an Avian Heretick , *id the faid Vhotius a Sabellian Epiph. Hxr.r,
Here tick.
At Millain^ in the year, 355. at the infiancc of the Avians a At MiUain
Council confil'iing of 300 of the Occidental Bifhops at the Com- An. 355.
mand of Confiantius was affcmbled, who (after that the Emperor
Confians was flain by Magnentius) had the whole Sovereignty ^ .
both of the Eaft and Weft in his hands. This Council was convened g. 0$, '
S f f f partly
3.
55?^
Of Councils^ Synods^
Theod. I. 2.
e. 15.
An. 363.
.%\h.
At Seltuciay
Aq, 3J53,
partly for ratification of the Sentence pronounced againft Athana- %
Jius at 'tyrus^ and partly for fubverfion of the JNT/fcwe Faith, but pr^
vailed in neither. In this Council the Emperor himfclf was PreiiAY
dent, Libtrius being Pope > 1 (faith the Emperor) in this Coun* ;
cil am an Accufer of Athanafius» The Weftern Catholick Biftiops
there prefent (for there were few Eaftern) promifed to confent to
the Arians, if they would firft fubfcribc to the Nicene Creed. But
Valence and Urfacitts^ the chief Leaders of that Fadion withftood
•them. Then followed the degrading of the Bidiops, and the cor-
rupt Eccleiiaftical determination. This was effeded fpecially that
they might allure L/i'friwi Bifliop of Rowe,either by Gifts or Threats
to their way, who is reported thus Heroically to have anfwcred the
Emperor (who had judgM him to be banifhed to T^r/7ff, and offered
him the charge of his Journey) viz,. Thou hafi robbed the Churches
of the Earthy and now ojferefi to me Condemned and Indigent^ an
Alms t Go firfi and become a Chriftian thy felf.
At Arm'tnum in Italy about the year, 3<53. was held a National
Council, conlifting of more than Four hundred Weftern Bifliops,
under the Emperor Co«/?<«»;f«j in the 22 ^^6 year of his Reign, at
the motion of the Arians^ to whofe Opinions the faid Emperor
was flexible enough i but the major part of the faid Bifhops re-
jc<^ing the motions made in favour of the Arian Error, touching
the Sou of God, adhered clofely to the Nicene Faith. This Art-
mtnttm is (it fcems) famous for Two Councils --> the one Ortho-
dox and lawfullycalled,. wiiich is that aforementioned. The other
Heretical and Tyrannical, craftily called by the Avians under the
notion, of the Council held at Anmimim ^ that this falfe one
might cxtinguiOi the true one \ whereof the greater part deter-
mined the Nicene Creed pundtually to be obferved, and the Sons
equality with the Father in Elfence to be aiferted : The Decrees
of the Synod at Sirmium to be rejected; and Urfacius and
Valence with the Ariansythelt Followers, to be Excommunica-
ted.
At Seleucia m Ifaurio:, which lies between Lycaonia and Cilicia^
whence Vaul and Barnabas failed to Cyprus^Att.i'^.'\. was a Coun-
cil of 1 60 Oriental Bifhops, held the lame year, wherein the faid
National Council of Artmlnum was held, njiz,. An, ^6:^. The bufi-
nefs of this Council , procured ( as the former ) by the Arians^
was much prevented by a Conteft arih'ng touching precedency of
Debates, as whether the matter of Faith, or the Lives of fuch as
were to be accufed, fhould firrt fall under Examination. At this
time there being Convened at Ariminum 600 Bilhops (according to
Bellarmine out of the Cbron. ot Jirome) of which the Eaftern He-
igrodox being overpowr'd both in Number and Arguments by the
Orthodox
and Convocations, 5^7
brthodox^ the Etuperor ConHantius removes them unto Seleacia in
y^Ifauria aforefaid. Here the Acatinns altogether rejed^ Confubftaii-
-d^iality, the Semi- Art ans admit it in their lenfe ; In this dilfaitioii
--Mthe Semi'Arians prevail, and determine, That the Form of Faith
eompofed at the Dedication at Antiocb., fhould be retained and fub-
fcribcd unto i but they ejedted the diffenting Acatians cr Ariam
from their places.
At Confiantinople^ where the Acatians remained after the Coun- At ConfiantiXH
eil at Seleucia^ were Aflembled by them about 50 Bifhops out of pl''
Bithynia and other adjacent parts. In this Synod they ccntirmed
the Sum of Faith read in the Council of Ariminum.
At Antioch^ in the 2 5f<6 year of Covfianttus his Reign another At Antioch,
Council was Convened, with delign or ordering matters fo, that
for the time to come no man (hould call the Son of God Confub-
' ftantial with the Father, nor yet of a different fubiknce from the
Father, but neither in this Council could the Ariam perfect their
intended purpofe of inventing a new Sum of Faith.
At Laodicea^ not that Laodicea nigh Antiocb in Syria^ but at At Laodictt^
Laodicea the Metropolis of Thrygia^ and one of the k^en Churches Ad. 5^8.
of Afia^ to which John in his Banifliment wrote from Patmos,
At this Laodicea a Synod was afltmbled about the year,3(58. where-
in nothing was determined concerning matters of Faith, only the
worlhipping of Angels was damned as an horrible Idolatry, and
a forfaking of Chrill » alfo the Books of the Canonical Scriptures
were particularly fet forth, wherein no mention was made of thfc
Books of the Machabees, of Ecclejiafiicus^ or other Apocryphal
Books,
h\ lUyricnm^ about the year, 370. under the Emperors Valentim- In lUyric um^
an and VaUns^ not yet infeded with the Arian Herelie, was held a Ad. 370.
Council, wherein the Ntcene Faith had confirmation and allow-
ance.
At Lampfacum nigh the Helle^ont^ under the Emperor Valens At Lampfaeuni'
was a Synod of Macedonian Hcreticks, who ratified the Council Socrat. 1.4.0.6^.
of Seletfcia, and damned that of Confiantinople by the Aca- Sozom.l.5.c.7.
tians.
At Rome under the Emperor Valentinian in the Weft, Damafas ^t j(omt
Bifliop of i^cw<? Convened a Council, wherein was confirmed the Theod. I. 2.
Nicene Faith. €.22.
At Confi-antinople^ in the year, 383. under Tbeodofjus the Empe- ^t conRmine-
ror, was a General Council held, confifting of 1 50 Bifhops, where- pie. An, 389.
of 35 were infeded with the Macedonian Wtit\^c^ which Blafphe- Thcod.l.5.c.6,
raoufly held the Holy Ghofi to be a Creature, aiviinifter and Ser-
vant, not Confubftantial with the Father, and the Son. From this
Council the faid Hcreticks having withdrawn theoafelves, thej:
S f f f 2 which
5p8
Of Councils^ Synods^
tongm ex Lorn-
bard. I. Scm.
D. II.
Monavent. &
alijs. Thcod.
Hlft.I.5.c.5.&c.
10.
At conflantine-
9iU
Theod, I.5.C.9.
Ac confiantinO'
tii.
At canbsgi.
At Nict,
which remained in Council damned the Herefie of Macedomns^znd <
confirmed the Ntcene Faith, with ampliation of that part of the
Symbol which concerned the Holy Ghoft, in this manner, 'viz,* r\
believe in the Holy Spirit our Lord^ Giver of Itfe^ "who froceedetik- r
from the Father y and "with the Father and the Son is ts be Tvorfhif-
fed and glorified. This Council was held under Gratian and Theo'
dojius the Great, and Damafus. They condemned and difcharged
Macedonius Bifhop of Confiantmofle^ioi his perfidious oppofing the
Deity of the Holy Ghofi, together with Maxitnus Cynicus by reafoa
of his Ddrine againft Difcipline. The Emperor null'd all Confelli-
ons, except that of thofe who ackowledged Chriit Coeffential with
the Father,whlch our prefcnt Liturgy retains under the name of the
Nicene Creed, It is thought that Gregory Naz,ianz,en compiled it>
according to the fenfe of the Synod.
At Conjiantinofle under Theodofius another Council was held,
whence a Synodick Letter was fent to the Biftiops then Conven'd at
Rome^ declaring the Troubles they fuftained by Hereticks \ and as
to matters of Difcipline, recommended unto them the Canons of the
Council of Nsce»
At Confi amino fie in the Fifth year oiTheodoJius his Reign, a
great National Council was again Conven'd, wherein the Hereticks
were divided among themfelves touching what Credit they (hould
give in matters of Faith to the Fathers that preceded their time ;
whereupon that good Emperor rent in pieces the Sums of the Art'
i>«, M«»»#»i^»,and Macedonian Faith,and Ordained ^^HemoHJian
Faith only to take place.
At Carthage the Second Council was afiembled under 7heodoJius^
nigh the time of the forefaid General Council held at Confiantinofk^
wherein the Nicene Faith was confirmed, abftinence from Matri-
monial Society with Infidels and Hereticks recommended to Ecdeii-
aftical Perfons.
At Nice there was another Council, An. 181. under ConJ^antiite,
which wholly reftorcd the Images and Statues of Jrene^ together
with the Reliques formerly broken in pieces by Leo Ifaurus his
Grandfather, and Confiantine Copronymus his Great Giandfather,
the bufinefe being chiefly promoted by Gregory the Second and the
TJiird, together with Adrian the Firft, and TarafiHs Patriarch of
Constantinople. There met at this Council (which is one of the
Grak or Ealkrn Oecumenical Councils) 3 50 Biftiops, who witb
the faid 7Wr<?/z«/ prefident of the faid Council, by 22 Canons con-
demned Image-breakers for Hereticks. Bellarmtne and Baroniui
ims^ivie that this Synod was condemned by the Fathers at the Counr
til of Frankfort under Charles the Great, which yet is denied by
Binnius:, Surmsy and others, according io Lovgm, pagi 6^2,
and Convocations, 5^0
k^Carthage a Third Council was Aflembled, in the year, ^p^. f^^ Martha
pit Vfhkh Jugtifiine Biftiop of Hippo was prefent, wherein it was An. ^^^.^ '
{(infer alia) Ordlained, That the Bilhop of Rome fhould be called
'the Bifhop of the Firft Seat i but not the High Prieft, or the Prince ^^^- 4°*
of Prielts. Likewife, that nothing except the holy Canonical can
Scriptures (hould be read in Churches, under the notion of Holy '
Books.
At Carthage a Fc)urth National Council was held under the Pteign At canhagt
oiHomrim about the year, 401. confining of 214 Bi(hops,at which An. 401.
Augufiine Biftiop of Hiffo was alfb prefent, and wherein were nigh
as n:iany Canons made as were Bifliops ailembled <> wherein among
other things it was Ordained, That a Btjhop jl}6uld admit no man
to a Spiritual Office "witbcut Ad-vtce of the Clergy \ nor pronounce €30.23525,95,
any Sentence without fuch Advice : That Refujers to pay unto the
Church the Oblations of ferfofis Deceafed^jlimld h Exxommunicated*
Whereby it appears, That Oblationes DefunBcrum were not Soul-
MaJJes laid for the Dead, but Charity by way of Teflamental Lega-
cies.
At Cyprus under the Reigns of Arcadius and Honorius was Af- At cyprtts.
fecnbled a Council by Efiphanim. And at Alexandria by Theophi-
lus^ under pretence of damning the Books of Origen. Alfo at Alexandria.
Conffantinople by the malice of Eudoxia^ the Wife of Arcadius
the Emperor, to depofe John Chryfofiome Bilhop of Confianti- ^<>^fl''^^*'^¥(*
nofle.
At Carthage about the year, 419. a Fifth Council was held, At canhagt^
wherein the Opinions of Telagius ^luA Ccelejlius were damned as Aa. 419.
Heretical i and whereby it was declared, That the Adoration of
Rcliques was-at this time the Cuftom of Ethnicks^ and appointed.
That Supplication fhould be made to the Emperors, That fuch Re-
liques as were found in Images, Groves, and Trees, or clfewhere,.
fliould be aboliOied.
At Toledo in Spain under the Reigns o{ AreaMm and Honcriusy At ToUdq,
was a Council aflembled for Confirmation of the Nicene Council,
and refutation of fome Errors.
At Melevitum in Numidia was AlTembled under the Reign of At MelivitHm,
Arcadius a Council, whereof St. Augudine was Piefidcnt v which
was Aflembled chiefly to hnifli the work begun at the Fifth Coun-
iW of Carthage^ in condemning the Herefits of Vdagius and C«-
lefiiusy concerning the power of Mans Nature, not fupported by Can.aa. .. '•
the Grace of God, and Free Will of Man, to do good of it felf j as
alfo to inhibit Appeals to Biihops beyond Sea, on pain ©f being feda-. .
dcd. from the Communion of all African Bifhops,
kir
6oo
At drthagi,
Ad, 402.
Klft.Magd.
Cenc.j.cap.p.
At Bagaiat
Aq. 434..
At EphefitSj
An. 434.
Of Councils^ Synodsy
the Mother of
Chrift, Kot the
.Mother of God.
:Breviar,ci.ii,
At Cartkao^e^ in the ycar,402- under Hettorius midTheodcfus-.thc
Second > a National Council of 217 Bifliops was alTembled, whic
continued for the fpacc of Six years : The bufineis of this Councif^
was prevented by a Controveriie hapning between them and the'
Bifliops of Rcme^ who fucceirively endeavoured (but not fuccefsfullyj
to perfwade the Afi^ican Bilhops, that they were under the Sove-
reignty and Jurifdidion of the Bifhops of Rome '■> to whom this
Council Avould not allow of any Appeal tron:i theBilliops oi Africa.
At Bagaia in Africa^zhoMiXht year,433. certain Donatifis to the
number of 3 10 affembled themfelves in Council,- chiefly for the de-
poiition t f Maximinianus B fhop of Bagaia^ whom they Depofcd
and Accurled, becaufe he had renounced their Herclie, and had re-
covered many others from the Error of that way.
At Ephefus^ in the year,434, and in the Eighth year of the Pveign
of Tbeodofius the Second, by fome called Theodofius the Younger,
was a General Council affembled againf^ the Heretick Nefiorius
Bilhop of Confiantinople i which Council confjiled of above Two
hundred Bifhops, by Command from the Emperor : By which
Council Nefioriusy for his herelie in denying the Son of the Virgin
Mary to be God, and confequently the Perfonal Union of the Di-
vine and Humane Nature of Chrift, was banifhed to Oajjs. This
was the tirft General Council of Epbefus, promoted by Cekfiine the
Firfl, wherein Two hundred Bifliops ( as aforefaid ) condemned
Nefiorhfs^ together with Carijius his flattering Presbyter, who in-
ftead of Two Natures acknowledged divers Perfons inChriffjand
therefore pleaded that the BlefTed Virgin Mary fhould be ftyled
Xei^ToX'®- only, and not ^o7^x,©-. In this Council Cjrilius of
Alexandria is recorded Prciident, whom Nefiorius^ being pioufly
and brotheily invited to a better Opinion, proudly contemned, and
having craftily allured John of Antiocb to his Party, Anathematiz'd
him and the Council, who had formerly Anathematiz'd him. The
matter being related to the Emperor, and throughly underflood,
Cynllus and his are cleared, but Nefiorius with his Party is banifhed
(as aforefaid) to Oajis^ a Sandy habitation, where like another Cain
f fays a Modern Hifiorian) roving here and there, blafpheming, at
length his Tongue being confumed and eaten up by Worms, he
breathed out his lafl. There are (it feems ) two Copies of this Couiir
cii, the firf^ obferving Eight, the fecond Thirteen Canons, which are
comprehended in the Anathema's of CyriUus. The Majfiltanitesy
termed alfo Omhites and Enthujiafts^wtxe condemned by this Coun-
cil, and thereby tlie integrity of the Niane Creed conhrmed.
At
and Convocations. Co\
At Epbeftts under TheoJoJins the Second was likewi/e a parricu/ar ^^f £/,^,/j
, Council aiTembled by Flavianus Bifliop oiConfiantimfle^ whoconr An. 449, '
demned Eutyches an Abbot of Confiantinofky (ox Affirming, That
'inChriftj after the Union of the Divine and Humane Natures^
there were no longer two Natures j which abfurd Opinion Fla-
'vianus damned as Heretical. So that the occafion of this Second
Council oi Efbefus^An. t![^9' was this: Eutyches and Archimandrite
of Confiantinofle^ who after Manes and A-^ollmaris denied the Fleftj
of Chrift to be like ours 5 but affirmed, that falling from Heaven like
the Rays of the Sun, it penetrated the Virgins W omb. And fo he
denied that two Natures were in Chrift Incarnate \ but aflertedjthat
his Fleflv was changed into his Divinity •, for which he was (^as afore-
laid) condemned by Flavianus Patriarch of Co?7fia»tinople.,znd Eufc
bius BiQiop of DoriU and others their AITociates i yet by the help
ot Chryfaphius the Eunuch, and Eudoxia the Emprefs, whom he
had fcduccd, he prevailed with Theodojius, that the matter might
be determined by a famous Synod j for which reafbn this at Ephe-
fas by the Emperors Authority was called, where 128 Biffiops met^
JPisfcorus of Alexandria being Prefident, one fo full of Eutychia'
ftifm^ that Eutyches is abfolved, and the Reclaimers forced ( fays the
Hjftorian) to lubfcribe by Club- Arguments. Flavianus oppofing vld. iJbnat.m
it, was fo furioufly trodden upon, that three days after he died v be- Bnviar. C3.12.
fides, many very Learned Biffiops difcharged of their Places : yet not ^""^/"S- C'PjIo
long after, all this was dafficd in pieces by the moft famous Council ^'"^ •'• M*
ot Calcedofit
At Berytus in Vho&nicia was held a Council about this time. At Birytus,
wherein the Caufe of Ihof Biffiop of EdeJJa^ whom Diofcorm had
^epofed, was revived, and himfelf juftihed and abfolved.
At. Agatha in France was a Council held, wherein nothing was At Agatha. •
more remarkable, .than that they had liberty to meet together by
the Command of AlaricusYAw^d Gothes^ who at that time had
the Sovereignty in that part of France called Gallia Narbonenjis v
whence it appears , That Councils both General and National
were in all Countries Convened by the Authority of Sovereign
Princes.
At Chalcedon in Bithynia, in the year,45 5 . and in the Fourth yeaj Ac chalcedony
of Marcianus the Emperor was a General Council, at which An. 455,
was prefent in Perfon the Emperor, and 6:^0 Biffiops and Reve-
rend Fathers from moft parts of the World. In this Council Diof-
corus Biffiop of Alexandtia^ together with Eutyches and Juvenalts
Biffiops at Jerufalenj, was condemned as an Heretick, for abfolving. .
the Heretick Eutyches in the Council at Ephefusy and adding othei
Crimes, whereof he was then accufed. In this Council it was Or-
dained, That men ffioald believe that the NaturcsofChrift, albeit..
that
6o2
Of CouMi/sy Synods^
Cent. 6,
: At VaUntii,
At Slioit.
■htOHunct.
M GtYunda.
At Ccffar-
■ aiigufla.
that they were united, yet were they not confounded, as Eutyches •
had Heretically aflirmed. Alfo in this Council it was Ordained^i/
That Anatolius Bilhop of Conftantinofh and his" Succeflbrs, fliould'i >t
have the chief Dignity next unto the Chair of Rome. This Coun- \
cil was called by the (aid Emperor Martianus againft the faid Euty-
ches Abbot oi Confiantim^le^ and his Champion Diofcorus o( Alex-
andria i the fuppof ititious Ads of the Council held at Ephefus were
condemned by this Council, thofe of Ephefus being in favour of
Eutyches^ who affirmed one only Nature to be in Chriii, 'viz, his
Divine Nature, after his Incarnation. It is not clear or certain, who
was Prcfident of this Council of Chalcedony excepting the Emperor,
and Judges Moderators : The matters thereof were for the moft part
by favouring Parties between Leo the hrlt of Rome^ and Anatolius
Patriarch of Con(iantinople.
A t Ra'uenna in the Sixth Century was a Council aflembkd by
oocaiion of the Schifm happening on the Eledtion of Symmachus to
the See of Romcy whofe Competitor was LaurenttttSi afterwards
made Bifhop of Nuceria. In Symmachus his time were no lefs than
Six Councils held at KomejdW convened by Authority oiTheodoricus
King of Gothes^ who then Reigned in Italy ^ and all of little impor-
tance, otherwife than the Endeavours that then were for the Supre-
-macy, whereat they aimed.
At Valentia in Spain w^ere afiembled two Councils, called Iler-
denfe and Valentinum^ both very obfcure Councils, there being in
the one but Eight Bifhops prefent, and only Six in the other. In the
firlt of thefe Marriage was prohibited the time of Le«f, and three
weeks before the Feaft of St. John the Baptifi^ and during the time
between Advent and Epiphany.
At Si don in the Twentieth year of the Emperor Anafiajius a
National Council of 80 Bifhops was aflembled, by the procurement
of Xenaas Bifhop of Hterapohs, for undoing the Council oi'Chal'
cedouj which, as far as in them lay, they did accordingly.
At Aurelta^ that is^Orleance in France in the 22thye3iT oi Ana-
fiajius^ and under the Reign of Clodoveus King of France^ were
convened 32 Bifhops, on purpofe to fettle fome Order in Eccleir-
ai!lical Difcipline, which by reafon of the irruption of Barbarous peo-
ple into the Country of France^ had been brought into great di(^
order.
At Gerunda and Co-far augufia in 5'p^i» were two Councils under
Theodoricus King of Gothes then Reigning in Spain. In the former
of thefe were only Seven Bifhops convened, who made fome Con-
ftifutions, chiefly about Baptifm : In the later were Eleven Bifhops,
and they inoppofition to Superilition and ih.^ Mamcktean Hcreticks,
.prohibited Facing on the Lords-day.
■At
and Convocations, 6o'X
At Rome in the fixth Century, by the Mandate of Theodoricus Ac Romi,
King of Gothes^ Reigning in Jtaly^ a Council was afierubled by ^^'^f- "5.
Hcrmifda Bifliop oiRome^ wherein the Error oiEutyches is damned
Me novo^z.ndi EmbaiTadors fent to the Emperor Anafia/iusy and to the
Bifhop of Confiantinofle^ to divert them from that Error.
At Confiantinople in the fame Century under the Emperor At conflaitt.
Juftinus was another Council convened, wherein many great Ac- Cent. 6.
cufations were exhibited againfl: Sever us Bi(hop of Antiochy who
was then condemned of Hcrefie, and afterwards banilhed by the
Emperor.
At 7o/«^o in the fame Century was a fecond Council aflembled, At Toledo,
partly for renewing Ancient Conititutions, and partly for making ^^^^ ^•
New in order to EcclefialUcal Difcipline. By the firft Canon of
this fecond Council of Toledo^ Marriage was tolerated to fuch of
the Clergy, as on their initiation to that Fundion protefted that
they had not the gift of Continency.
AtCo»/?^«fi«tfp/^inthe year 532. undet Jufiinian was znothcx Ate onPinttHo-
Council confiding of one hundred fixty five Birtiops, Menes he- pity An. 532.
ing Prefident y or rather his Succeflbr, Eutychius Patriarch of
Confiantinople s but Pope Vigilius^ who came to Confiantinople to
Summon the Emperor, yet would not himfelf be prefent at the
Council, left a Teeming yielding to Eutychius might be prejudicial
to his Supremacy. The Emperor endeavoured to reconcile the
Eutychians and the Orthodox for the publicly Tranquillity, and
therefore would have revoked the Articles concerning the con-
demning of Theodorus of Mopfuefia^ and of Theodoret againft Cy
rillus that was Anathematiz'd. But the Weftern Churches with
Pope Vigilius conftantly oppofed it, and confirming not only the
Decrees Anathematiiing thofe Hereticks with their Herelies of
former Councils, but alfo of ChaUedon. The Errors of Origen yij. i^iceph.l,
alfo expunged, which cither denied the Divinity of Chrift, or the 17. c. 27.
Rerurre(f^ion of the Body, or affirmed the Reftitution of Repro' Gregor. I. i.
bates and Devils. Confult concerning this Council, Zonar. tn -vit. ^P' ^^j
Jufiinian, If this be that Council .which fome report to have been ilblrat.tn ^^
at Confiantinople under thc' Emperor Jufiinian in the year 551. BriV'C.2^^2^,
there appears above twenty years difference in computation of
Time. This Council is faid to have been occafioned chieflv
for pacifying the Controverfie between Eufijchius Bifhop of
Jerufalem , and Iheodorus Afcidas Bilhop of Cafarea-Cappa-
docia^ touching Ori^ens Books and Tenets, as alfo for the de-
termination of other contentious Difputations. In this Council
a QuelHon was moved. Whether Men that were dead, might
lawfully be Curfed and Excommunicated ? To which it was
anfwered, That as Jojias not only punilhed Idolatrous Prief^s
T 1 1 1 while
^04
Of Councils^ Synods^
a Kin. 2 5.1^.
At OrltAni.
At Ovtrnii.
At 7b»rj.
At ? Arts'.
At toUdo.
At Confianti-
vople.
Hiil.Magd.
Cenr.'^.cap.^.
At Matifcon,
Can. 8.
At Matifcon.
dn. 5.12.
At Rome,
An, 5:95.
while they were alive, but alfo opened the Graves of them that •
were dead, to dilhonour them after their death, vs'ho had difhonour-^.
cd God in their life time : Even fo, the Memorials of Men mighr)*)^
be accurfed after their death, who had ditturbcd the Church of**' '^
Chrifi: in their life.
At Orleans under ChiUehertus King of France were frequent
Meetings and Afiemblies of Bifhops, 'viz,, the 2, 3,4, 5, Councils,
whereby many Coniiitutions were made prohibiting Marriage to
Piiefts j and in the fourth Canon of the fecond Council Simony
was damned.
At Overnie in France under 'theodohertm King of France^ the
Bifhops who were prefent at the Councils of Orleans^ did affemble
and ordained. That no Man fhould prefume to the Office of aBi-
Ibop by favour, but by merit.
At 'Icurs under Arihertus King of France a Council was held,
wherein Provifion was made againft fuch Poor as wandred out of
their Parifhes. In this Council feveral Conftitutions alfo were
made relating to Bifhops and the other Clergy in reference to
Marriage.
At Tarts a CoutKil was held^ wherein order was taken concern-
ing the Admiffion of Bifhops to their Offices, and that not to be
by favour, but with the conftnt of the Clergy and People.
At To/e^fl alTembled a Council of 62 Bifhops, where Recaredm
King of Sfain^ and the whole Nation of the M^eH-Gothes in Sfain
renounced the Anan Herefie,
At ConHantinofle under the Pveign of Mauritius a Council was
held, for trying the Caufe of Gregorim Bifhop of Antioch accufed
oflncefi, but declared to be Innocent, and his Accufer fcourged
with Pvods, and Banifhed.
At Mattfcon about the time of Velagius the fecond, a Council
was held, wherein command was given, That none of the Clergy
jhould Cite another. ^having a SpritualOffice^hefore a Secular yudge.
And tliixt fhe ivho u the Wife of a Man that becomes a Bijhop era
Presbjter^jhould after fuch Dignity become hisSifier^ and he bechan'
ged into a Brother.
At Mat f con another Council v/as convened under Ganthranus
King of France in the 2\th year of his Reign, wherein it was or-
dained. That Children (Ijould be Baptized at Eafler and Whitfun-^
tide '■) and that Secular Menjljould re%>erence the Clergy.
At Rome in the year 5^5. and in the thirteenth year of the
Reign of the Emperor Mauritius^ was a Council afTembled of 2 4.
Bifhops, and 3 4. Presbyters, wherein the lirft four General Councils
were conlirmed i and that for Ordination of Men in Spirituals, no
Reward fhould be given or taken.
Before
and Convocations. ^05
, Before the Concluiion of this lixth Century, and precedent to
the Councils laft mentioned, there were fome other Councils of
left mornentjfuch as Concilium Gradenfe, Braccarenfe^ Laterartenfe^
■^^jLugdunenfe^PiBavienfe^dc Metenfe^ which being for the moll: part
employed chiefly in damning Old Here fies, and in contentious Dif^
putations, arc here omitted.
At Rome in the year 607. under ? hoc as the Emperor, a Council ^^ ^^^^^
of 72 Bifliops, 30 Presbyters, and 3 Deacons, was affembled. In An. 607.'
this Council the priviledge of Supremacy given by Thocas to the
Roman Church was publilhed. And in the eighth, that is, the laft
year of Thocas^ Boniface the fourth affembled another Council at
Rome^ wherein he gave power to the Monks to Preach, Adminfter
Sacraments, hear Confeflions, to bind and loofe, and alTociatc them
in equal Authority with the Clergy.
At Braga or Bracara in Tortugaly An, 610. under the Reign of At Braeara,
Gundemarus King of Gcthes affembled fome Bifliops of GaUtcia, An. 610.
Lujitania-i and of the Province of Lucenfis^ whereby it was or-
dained. That every Bijho^ (hould vijtt the Churches of his Diocefs >
That they fhould receive no Rewards for Ordination of the Clergy i
And that a Church huildedfor Gain^and Contribution of the Peeplcy
redounding to the advantage of the Builder^ jhould not be Confe-
crated.
At Auxerre in France^ An, 61^. affembled a number of Abbots At Aaxirrt,
and Presbyters, with one Bifliop and three Deacons. In this Synod An. 613.
they damned Sorcery, made many Superftitious Conftitutions, as
touching Maffes, Burials, Marriages, Prohibition of Meats, dec.
At Htffalis-, commonly calkd Sevil le Grandy in Spain, in the At Hijpalisa
year<534. and in the 2^th year of the Emperor Heraclius a Coun- An- <^34«
cil was affembled by IJidorm Bifliop of Hiffalis, at the command
of King Sifebutus, for fuppreffion of the Herefie of eiyd^Ahoh a
Branch of the Eutychian Herefie, and for the decifion of feme Qiic-
ftions touching the Bounds of their Dioceffes.
At Toledo in Spain, An.6^p.undtt the Reign oiSifenandus King At Toleda^
of Spain, by the Kings command were more than 70 Bifliops and ^°' ^5^°
Presbyters convened upon occafion of diverdty of Ceremonies ^
and Difcipline in that Kingdom. This was the fourth Council at
Toledo,
At Toledo in the firft year of ChinteUa King of the Gothesy ^j toltdih
about the time of the Emperor Heraclions Reign, a fifth Council
was held, conven'd by Eugenius Bifliop o( Toledo. In this Council
nothing confiderable was done, but in reference to Annual Litanies,
. and the appointment of Supplications for the King.
T 1 1 1 2 At
^o6 Of Co7i?icils, Synods^
At Kmi^ At Rome in the year 6^2. was a Council convened by Martinus
An. ^52. Pope, conllfting of more than lOoBifcops, occafioned by the Er-
ror of the Monothdites^ obflinately maintained by Vaulus of Con
fiantino^k^ and countenanced by the impious Edid of the Emp©
tox Confians. The Conftitutions and Decrees made in this Council
tended to condemn thofe that denied the Trinity^ the Divine Unity
in the Divine Nature, the Manifeftation of the fecond Perfon of the
Trinity, and his Sufferings in the Fkfh.
fitToUdo, At Toledo in the year ^53. a iixth Council was held, confifting
An. ^j?. Qf ^ffy (y^Q Biftiops , whereof Eugenius Bifhop of Toledo was
Prefident, Theoccalion whereof was the Renovation of OldHe-
rcfies, and Contradidion to precedent Councils. The fourth Canon
of this Council is againft Simony^ and the eighteenth is againft
Rebellion.
At niecU ^^ Toledo in the year 662. a feventh Council is held, of 4 Arch-
An. 662, billiops, 50 Bifhops,and many Presbyters. The firii Canon of this
Council is againlt Sedition and Treafon. By the fourth Canon it is
forbidden, That Billiops in ihe'ix Fijtt at ions (hould extort, orop-
prels their Churches.
At ^uiniftxt. At Quinifext (To termed by Balfomon)' the fame year, 'viz> 66l.
An. 66^. ^vas held a Council, which by Bede and many others is accounted
an Erroneous Synod \ it was convened under Jufiinian the fecond
and Pope Sergtus^ wherein the Fathers thought fit to fup.ply the de-
fed of the fifth and iixth precedent Synods in reference to Man?-
ners and Ecclefiaftical Difcipline, for which reafon they ratified 102
f Tru!!o, thit Canons, in the t TruUo of the Imperial Palace, whence they are
^l "n^'^'^-^^'i called Trullans. Thefe are rejcded by fuch Latins, whofe ccxifcnt
Emltm^ ?L went not to the eftablilhment thereof, fpecially not empowr'd and
Uct. auihoriz'd thereto by the Pope. In the ^6th Canon thereof the
Patriarch of Conjlanttnofle is equalled to the Roman, and iu the
i^tb Canon Matrimony is granted to tl\e Clergy.
At chuhillonum ^^ Chalon in Burgundy by the command of Clodoveus King of
' or chalon. France a Council of 44 Bifliops affembled, wherein the Canons of
the Nicene Council had great approbation '■> And it was forbidden.
That tTPo Bi(l}ops jhould he Ordained in one City \ and Decreed, That
* no Secular Work pwuld be done on the Lords-Day,
At Romf. At Rome in the time of Conjl-antinus Vogonatus Emperor under
the Popedom of Agatho was held a Council, wherein it was de-
clared by the Suffrages of 125 Bifhops, That fwo Wills and tim
Operations were to be acknojvledged tn Chrifi i and the Defenders
of the Herelie of the Monothdites were condemned.
At Xohdo, At Toledo in the year 671. an eighth Council of 52 Bifliops was
An. 071. affembled, wherein were high debates concerning 'Perjury '■> At laft
it was refolved, Tlv^tm Necejjity ohligah a Man to perform an un-
lawful
and Convocaticns, ^qj
la-ii'ful Oath. In this Council Marriage was utterly forbidden to
Bifliops, and eating of Fle(h in Lent.
' At Toledo in the year ^73. and in the feventhycar of Recefuvin- At Toledo,
■>^.,\^us King of Gothes^ and by hiscommandj where convened iixteen ^°' ^73«
Bifhops , which was the ninth Council at that place ■-, and in
which fcveral Canons were made touching the Difcipline of' the
Church.
At Toledo \n the eighth year of the faid Kings Reign was the At Toledo
tenth Council, confining of 2 1 BiQiops, who made fome Decrees An. 647.
touching certain Ftfii'vals^ and others relating to the Clergy^ and
removed Trotarnius Bifhop oi Bracara from his Office, being con •
vidlof Adultery.
At Tohdo in the feventh year of Bamha King of Gothes ip Bi- At ToUdo.
Slops and (even Abbots were affembled by the Kings command,
wherein feveral Canons were made concerning Ecclefiaftical Dif^
ciplinc.
At Bracara a fecond Council was held (the firft according to At Bracant,
Caranza^) wherein many old Opinions of the Trifcilianifis and
Maf?ich^afts concerning Prohibition of Marriage and Meats are
condemned, together with the Hercfies of Samcjatenus;, Photinus,
Cerdon^ and Marcion : And in the ^oth Canon of this Council it
was ordained, That no Toejie jhould he fung in the Church^exce^t the
Pfalter of the Old Tefiament.
At Bracara in Sfoin in the time of Bomhas King of Gothes anor ^t itACAa.
thcr Synod of eight Bifliops was alTembltd, wherein the Nicene
Faith is again rchcarfed. In the fifth Canon of this Synod it is
OrdainedjThat XJfon Fejiival days Relitjites encJofed in an Ark^\hall
he horn on the Shoulders of the Levites.<w the Arkof Godin the Old
Tefiament was accuflomed to he horn,
htConfi amine fie in the year 689. in the twelfth year of the AiconflantlnO'
Reign of Con(tantine Pcgonatus a General Council was held, Pope f^h An. 680.
jigatho procuring it by his Legates. In this Conucil were convened
150 Bifliops (they who reckon 270 or 286 do compifte the abfent
Romans^ and others confenting thereto,) the Emperor himlelf was
Prefident. In this Council was dKcufled the QuelVion touching the
"Wills and A<fJions of Chrift : here were condemned the Momthe-
htes, Sergius^ Cyrtis^ Vyrrhus^ Peter^ Paul, Theodorus^ together
with Pope Honorius s who in the defence of Euiychtanifm pleaded,
that there was one only Will in Chrift. This Council conhrmed
the Canons, not only of general, but alfo of particular foregoing
Synods, zs oi Antioch.^ L^oi/Ve^, and others. It alfo added, what
was to be approved in the Orthodox Writing of the Fathers, as
appears by the fecond Canon of tliis Council. Vid. Paul. Diacon..
in -vit. Conilant.
At
6o8
Of Councils:, Synods,
.AtToUdo.
AtLondon,
An. 712.
At Cendant irto-
fUyAn. 712.
At Rome,
An. 714,
At Rom*
In France,
Ad. 744,
At Covftantino
plh An. 755.
At Toledo the twelfth Council, confifHng of 33 Biftiops with ^
fome Abbots, and 1 3 of the Nobility, affembled the hrlt yeai" of the
Reign oiEuringius, to whom ^ori^bas King of the Gothes refignedk;
his Royal Authority, chufing rather-ro be Shaven than to wear a^;;^
Crown, and to enter into a Monadery than to fit on the Throne of^ '
Majefty. This Council Cas to the ConfeJJlon of Faith) adhered to
the Council oiNice, and confirmed the Ads made in the precedent
Councils againft the Jews* Other Councils there were at Toledo
under the Reigns ot Euringim and Egtfia^ but not of fuch Re-
mark as needs any apology for their omilfion.
At Londen in the year 712. under the Saxons Reign a Council
was affembled, at which the Popes Legate Bonif actus, and the chief
Prelate of England Brithwaldm, was prefent. The two grand
Points treated in this Council, were concerning iht mrjhipping of
Images, and Prohibiting Marriage to perfons in Spiritual Orders.
At Confiantinople ^hout the fame year of 712. a Council was
called by the Emperor Philffpicus, for the undoing the fixth
General Council, wherein the Error of the Monothelites was con-
demned. /Y' 1 1 J 1 n
At Rome in the year 714. a Council was aflembled by Pope
Gr^^ory the fecond, whereat two Biftiops of Britain vitxt prefent,
Sedultus and Fergufius. Moll of the Canons made at this Council
did concern Marriages, MaJJes, Sorceries, and tht Mandates of the
Apofiolick Chair. • ^ , , , r t>
At i^owcagreat Council of P03 Bilhops was affembled by Pope
Gregory the third, having received a Mandate from the Emperor
Leo for the aboliihing of Images. In this Council was the Empe-
ror Let) excommunicated, and deprived of his Imperial Dignity,
becaufe he had difallowed the Wor^nmng of Images. Now is the
Popes Banner difplayed againft the Emperor, which is the Fore-
runner of that Enmity which enfued between the Pope and the
Emperors. » 1 a>
In France In the year 742. under the Reign oi Charles the Great,
Zachnrias the Firft being then Pope, a National Council of the
Bifhops, Presbyters, and Clergy of France was affembled by Bont"
facim Archbilhop of Mentz., according to the Mandate of King
Charles. This Council was called for Reformation of Ahufes^ m
that Country, or rather to reduce it to a conformity unto the Rites
of the Roman Church.
At Confi amino fie in the year 755. and in the thirteenth year of
the Emperor Conjlantius Cofronymm, a General Council of 338
Bifhops was affembled by the Emperors Command. In this
Council the JVorjhipping of Images was damned, and the placing of
them in Oratories and Temples, as a Cuftom borrowed from the
Pagans,
ajid ConvGccttions, 6Qp
Pagans was forbidden i yet In the j<)th and ijtb Canons of this
vX^ouncil the Invocation of Saints is allowed. The Council of Con- An. 7^0. BiU.
J^antmofle is by fome accounted two, which others contract into j ^°°^' *
<bne, but the dilrindion fit feems) is manifeft, becaufe the firft is
{aid to be celebrated under Father Leo Ifaurus^ An. 730. thefe-
cond h^ Con fi annus Co^ronyrNus in the year 75 5. as aforefaid. The
one oppofeth the worfhipping of Images and Reliques, on which
account both may be eftecmed as one, or at leart united. The firft
under Leo discovers Intercellion of Saints to be imaginary, and the
worlliipping of Images meer Idolatry. Germanus Patriarch of
Conftantinofk^ and John Damafcene^ and others, too much in-
clined to Images, are deprived of their Dignities. Gregory the
third intercedes for Images in a Roman Anti'Synod, in which he
excommunicated the Eafiern with the mark of Heretical Image-
breakers', but this did not terriiie the faid Confiantine Copronymus
from declaring himfelf to be an Image-breaker i but aflcmblfed
338 Bifhops at Conftantinopk^ as aforefaid, over whom himfelf
was Prelident, and perfecuted the Maintainers of Images. Some
will have This and the feventh Council as Oecumenical^ but the
Romans Co abhorr'd It, that for this Controverfie about Images yld.PauLDiac.
they denied their Subjedion to the Greek Emperors : whence af- [j/rJi'^^Ro^ gl
ter wards enfued the Weftem and Eaftern Divilion, never to be re- ^onar. in
conciled. How well the Nicene Council correded the Errors or this Anna!,
appears by the Decrees thereof.
At Francfurt in the year 7 5? 4. a Council was convened, but it is A.t Franefurt,
not agreed, whether it was an Oecumenical or Provincial Council i ^^' 7?4«
the more Ancient Writers will have it toht Oecumenical^ becaufe
it was called by Charles the Great, and Adrian the Firft, and it
confifted of at leaft 300 Billiops ■•> yet the later. Writers will have it
Provincial^ becaufe it feems not to favour Images. The reafon of
the convening this Council was, becaufe EliparJus Archbilhop
of "toledo^ and Felix Urgelitanus Bifhop of Aurelia or Orleance in
France^ \ reached, That Chrift was only the adopted Son of God,
which Aquinas refutes 3 part, q.2^. art, 4. But Binius with Longus
and others will have it, that this Council or Synod confirmed the
Opinion of the 2d Nicene Council concerning the Adoration of
Images, which BeUarmine will not believe, though he wilhes it to
be true.
At Nice in Bythinia in the year 7 8 8, a Council of 3 56 Billiops was At ma, 783.
aiTembled •, in v^hich it was ordained, That the Image o/Chriit, the
BleJ/edFirgin Mdxy^ and of the Saints jhould not only he received into
places of Adoration^ hut alfo flwuld be adored and iporjhipped.
At Frankford in the ye^v J c,^.. a great Council was aflembled At Vran\ford,
by Charles the Great^ King of Fnmce, partly by reafoa of the An. 794*
Here-
6io
Of Councils, Synods,
At Mcntr^t
Ad. 8i^
At Rbmes,
An, 8i$,
At Tourst
At Chalons,
An. 831.
At Aries, 815
At conflantino
|/*, An. 871.
Heretick Felix, who called Chrlft the adopted Son of God in his «
Humane Nature?, and was condemned in a Council at RatisbonCy ,
^».742. partly alfo by reafon of great Difputes that were in moftFv,,
places concerning the Worjhi^png of Images, dilallowed m th^^
Com-id\ oiConl^mtmofle, but allowed in the fecond CouncU oi
At Mentz, in the year 813. by the command oiCarolusMagms^
wasaffembleda Council of 30 Biftiops, 25 Abbots, with a great
number of Priells, Monks, Counts,and Judges, about Reformation
of the dilTolute manners of Ecclcfiaftical and Lay-perlons.
At Rhentes in the fame year 8 1 3. a Council was alTembled by the
command of CW/e. the Great, who not only called that famous
Council of Frankford, An, 7P^. in which the Adoration of Imager
was condemned,butairoabout one and the fame time, viz.. An,^\^,
appointed five National Councils to be convened m divers places
for Reformation of the Clergy and Laity, 'viz.. at Mentz.. atorefaid i
this at Rhemes •> another at Tours \ a fourth at Chalons^ and a
fifth at Arks. In all which no oppofition was made to the atore-
faid Council of Frankford, nor was the Adoration of Images avow-
ed in any of thefe Councils* ^ . 1 x r 1 t-
At toiirs,An.%i^.^i the command (as aforcfaid) of the Emperor
Carolus Magnus a Council of many Biftiops and Abbots was alfcm-
bled,fortheeftabliaiingofEcckriafticalDifciplineinr6«r/.
MChalons, An.%1^. was the fourth Council convened the fame
year under Charles the Great, and by his Command, tor theRetor-
mation of the Ecclefiaftical State s the Canons whereof tor the
moft part are confonant to thofe made in the faid former Councils
under Charles the Great. , r j-
At Aries the fame year of 813. wherein the four preceding
' CouiKils were held, another was convened by command ota^r/^^
the Great, wherein, as to matters of Faith, ChurcK-Difcipline,
Regulation of the Clergy, Reformation of Manners, &c. tht
Canons generally agree with thofe of the faid four preceding
Councils. , . 1 c -n n-
. At Confiantmople in the year 871. in the third year ot Ba/ilius
Emperor of theEaft, and under the Reign of Lew^ 2^/ Emperor
of the Weft, a Council was aifembled by Bafilius the Emperor,
againft Phottus the Patriarch of Conflannnofle ; in which Council
hcwasdepofedand excommunicated, and the Books he wrote a-
gainft the BiOiop of Romes Supremacy above other Biihops, com-
manded to be burnt. At this Council the Embaffadors ot Pope
Adrian the fecond were prefent, and great endeavours u(ed to
have all things therein framed to his content, hi this Council the
mrjhifp''& 'f -^^^^l^^ ^^5 ^S^^" a^^ow^^ ' ^"^ ^^ ^^^ commanded.
and Convocations, ^n
That the Image of ChriH fliould be held in nolefs reverence than
the Books of the Gofpel.
^ At Accinlacum in France a Council confifting of Ten Bifliops At Aeciniacum.
iwas convened by Carolus Cahus, In this Council Hincmarus Bifhop
of Laudunum was deprived of his Office, and his eyes thruft outi
but Pope John the ^th under the Reign of Carolm CraJJ'us^ reftor'd
him to his Offic, becaufe he appealed from his ov^^n Bifhop and a
Synod in his own Country, to the Chair of Rome.
At Strasburgh^ in the year, 8pp. and in the Eighth year of the At Strashafiht
Empeiot Arnulphus^22 EiihoTps of Gerw<?«;' were AfTembled. Many Ao. 899.
of the Conftitutions of this Synod (according to Caranza) are in
eife(ft the fame with the Canons of former Councils. In the ^6th
Canon of this Synod it is Ordained, That a Man, whofe Wife is
Divorced fronn him by reafon of her Adultery, (hall not marry again
during her life.
At Rd'venna^ in the year, ^03. a Council of 74 Bifliops was coil- At Rivmti
vcned, whereat was prefent C<?r<?/«/ 5^wp/ex, Yiln^oi France. In An. 903*
this Council the Adls of Pope Formofus had allowance, and the
Decrees of Sfephanus the 6tb were condemned and burnt.
At Rbemes under the faid C<!ir<?/«j Simplex z. Council was aflem- At Khmts.
bled for correcting the Abufes o{ Church-Kent s., a great part where-
of under pretence of the Kings ncceflary occafions, was converted
by fome Courtiers to their own ufe, againft which Fuko Arch-
bifliop of Rhemes declaring his mind freely in Council, was flain
by Vinemarus one of the OpprefTors at Court •, the like not having
been known fincc the Second Council of Ephefis^ called a Council
of Bri^^andr^j wherein Flavianus Bifliop of Con(iantinople was
£Iain.'
At i?ow?e,inthc time o(Otho the Firft^a great Council was aflem- At Rom.
bled againfl: Pope John the i^thy or as others affirm, Pope John the
12th. In this Council the Pope was accufed of Ordaining a Deacon
in a Stable, of Simony., of Adultery., of making the Sacred Palace
like a Bawdy-houfe, of murthering BenediB his Spiritual Father,
of Gelding John an Archdeacouj of railing Fire , of drinking
to the Devil, of diftributing the golden CroJJes and Chalices to
his Harlots, of imploring help from Jupiter and Fenus in his
playing at Dice, and of his not Signing himfelf with the fign of
the Crofs.
At Canterbury, in the year, P7 5 . a Council was Affembled, when At cantcrbuYy.
Dunfianus was Bilhop thereof. The Queftion that was moft in An. 975.
debate at this Council, was concerning Marriage in relation to fiich
Perfbns as were in Spiritual Orders, the which Dunfiavus (whether
his Crucifix fpake True or Falfe, if it fpake at all) declared his
Judgment againft.
U u u u At
6l2
At Ctnjltntino
fit.
Of Councils^ SytioJsy
At KhoneSi
An, ^92.
At ArliSy
An. 1025*
At HnUingnu-
At Triburiaj
An. 1030,
At Sutrium,
Au. J 046.
Ar Rome,
An. 1050.
At Confiant'mofle under the Reign of Nicefhorus T hoc as Empe-
ror of the Eaft was a Council convened, by rcafon of Nicepborns
his taking to Wife Theophania the Relid of h'S Predcceffor RomaM
nus^ having been Witnefs in Baptifm to Theophamas Children «
the which fo difpleafed Volyeuchus Patriarch of Confiantinopky
that for the fame he debarr'd the faid Emperor from Holy
things, and fo in cffed Excommunicated the Emperor of the
Eaft.
At Rhewesj An. 991. in the Ninth year of the Emperor Ottot
and in the Fourth of Hugo Capeto King of France^ a Council was
convened againrt Arnulphm Bifhop of Rhewes for countenancing
Duke Charles, who claimed the Crosvn as next Heir, being Bro-
ther to Lotharitts, Whereupon Arnulphm was depofed^and denuded
of his Epifcopal Dignity , who yet afterwards reftored to it
again by another Council at Rhemes, called by Pope John the
Thirteenth.
At Aries, in the year,i02<5. and under the Reign of the Emperor
Henry the Second, a Council was affembled in order to the appealing
of the wrath of God and his hidignation at that time manifcftcd
againft the greateft part of the whole World.
At Halingnujlrat^ in the year, 1023. under the Emperor Henry
the Second a Council was afl'embled, wherein great endeavours
were ufed to make a conformity and unity in obfervation of Ecclefi-
aftical Rites and Ceremonies in Germany i wherein Laws were made
concerning the degrees of Confangunity.
At Tribuna, An. 1030. under the Reign of the Emperor Con-
rade the Second a Council was affembled, at which the Emperor
was prefent, wherein were made forae ConltitutiOns concerning
Failing.
At Sutr'mm in Italy, An. I04<5. under the Reign of the Em-
peror Henry the Third was an Aflembly by the Emperor for the
pacifying that grand Schifm in the Roman Church , when Three
Popes at once contended for the Popedom, 'viz,. BenediB the
Ninth, Sil'vefier the Third, and Gregory the Sixth, all which the
Emperor and the Council dif- Poped, and chofe one Sindigerus
Bifhop of Bamberg to be Pope, whom they called Clemens the
Second.
At Rome, about the year, 1050. Leo the Ninth afTembled a Coun-
cil at Rome againft Berengaruts Deacon at Anglers, who difap-
proved the Opinion of Tranfubftantiation, 'v'lz,. \_ That after the
"words of Confecration the fub fiance rf Bread e'vanijhed, and the
fubfiance of the Body and Blood of Chrifl was in the Sacrament, under
the Accidents of Bread and Wine s ~\ whofe Letters touching this
matter, not finding Lanfranhts Bifliop of Canterbury (to whom
they
and Convocations.
613
they were dircdled j in Normandy , were delivered to fome of the
^Clergy, who opening the fame, fcnt them to Pope Leo the Ninth,
whereupon this Council at Row^ was aflembled, wherein the faid
Letters of Berengarius being read, they condemned him (though
abfent; as an Heretick.
At VerceUis the fame ycaiLfo the Ninth alTembled another Coun- At yereilUY
cil againft Berengarius. An. 1050. '
At Tours y in the year, 1055. Pope Fic^or the Second alTembled a At Tours,
Council againlt Berengarius, who there anfwered, That he adhered An. 1055.
to no particular Opinion of his own, but followed the common
Dodrine of the Univerfal Church.
At Rome^ in the year, 105P. Pope Ntcholauj the Second affem- At Kmtj''
bled a Council of 113 Bifliops againlt Berengarius ^viho fubmitting ^°' *°59'
himfelf to the Pope and Councils corredion, they prefcribed him
a Form of Renunciation of his Error, fo there called, which he
accepted, and recanted, yet afterwards publiflied a Refutation of
the fame Dodrine. In this Council it was Ordained, That the
Election of the Pope Ihould belong to the Colled ge of Cardi-
nals.
At Mill an. An, 1060. Pope N'lcholaus the Second by Tetrus At MiUah,
Damanus held a Council, wherein the Two chief Points debated An. 1060,
were touching Simony, and the Error of the Nicholaitans, whereof
they counted fuch Priefts guilty as had married Wives, though they
did not (as the Ntcholaitans) make them common.
At Mantua, An. 1066. the Emperor Henry tht Fourth alTem- A{ Mantua,
bled a Council for pacifying the Differences in the Roman Church, An. 1066,
between Alexander the Second, and Candalus^ called Honor ius the
Second, wherein Alexander was declared Pope, and Candalus par-
doned.
At Winchefier Pope Alexander the Second by two Cardinals fent At mnchefl$f,
into England, Aflemblcd a Council to appeafe the Troubles of the
Church in this Kingdom ? wherein they depofed certain Bilhops and
Abbots, among whom Stigandus Bilhop of Canterbury, becaufe he
had poflefled that Chd\x,Robert Archbifhop thereof being then alive,
and becaufe he poflelTed another Bilhoprick with it, vix,, the Bilhop-
rick of Wincheper.
At Frihurgh ("anciently called Trihutia) the Bilhops of Germany At Vrihurgh
aflembled themfelves in a Council, in which they declared the Arch- or Tributia.
Bilhop of Bremen to be an enemy to their Country, except he deli-
vered up the young Emperor Henry the Fourth, to be educated ac-
cording to the Covenant made between the Princes and BilTiops of
Germany during his Minority.
U u u H 2 At
^14
Of Councils^ Synods^
At Ment\i
An. 1069.
At Erfurd^
An J074'
At Mint'^^
Ad. 1075.
At mmts*
Ar Friburgh^
An. io7<5.
At KQrm,
At Brixia^
An. iq8o.
Ac Kow?,
Aq. 108 1 >
At Btnevsntum.
At Mentz,^ An, i odp. a Council was Afiembled in order to a «
Divorce of the Emperor Henry ^th from his Wife, from which hc-.
wasdilTwaded by the Arguments of ?etrus Damianus the Popes^-
Nuntto for that purpofe. 4-*^
At Erfurd^ An. 1074. theBifhop of Mentz, aflembled a Council,
\a order to an obfervance of a Command from Pope Gregory "jth^
touching a feparation of the Priefis within the Bifhoprick oi Mentz,
from their Wives, or elfe to depofe them from their Offices. By
reafon whereof, as alfo by reafon of the Bilbops exa<Slion of Tithes
from THringiay this Council rofe in a tumulr and great confufion
re infecia.
At Mentz,, An. 1075. the Bifhop thereof (being commanded by
Pope Gregory yth to feparate the Prielis from their Wives) convened
a Synod C but the married Priells fo terriHed the Bifhop of Mentz.,
a)id the Bifhop of Chur the Popes Nuncio, that this CouiKil alfo,
^s ^he former, was dilfolved, and nothing done.
At Wormes the Emp<?rc«( affembled all the Billiops of his King-
dom, in order to a depoling of Pope Gregory Jtb, otherwife <;alled
HiUehrand^zccuCed oiVerjury^ Ambition^ Avarice and Vride. The
determination of this Council was, That h^fhould be removed from
ths Popedom^ which was fubfcribcd by all Bilhops prefent at the
Council.
MFriburgh, An- 10^6, another Council was aflembled, wherein
the Princes of Saxony and Siveve appeared in favour of the See of
Rome againft the Emperor Henry the Fourth.
At Ron<t€ by order of the Pope a Council was alTembled in Lent,
wherein the Emperor Henry ^tb was not only Anathematiz'd, but
alfo denuded (a5 far as in them lay) of bis Imperial Dignity.
At Br;x;<^, in the year, 1080. the Emperor Henry ^th aflembled
50 Biihops oi Germany and /r^//, together with many Princes of the
Empire : AH which confented, That Hildebrand fhould be depofcd
from the Popedom, and Gilbsrtus Bilhop of Ravenna placed in his
room.
At Rome^ An- 108,1. the Emperor Henry ^th, wifh the Advice
of the Roman Senat,e, appointed a Council to be aflembled, wherein
Hildebrand was depofed, and Gilbirtus^ otheiwKc PFigbertus-f-O iuc-
ceed in the Papacy. This Council was called by the laid Emperor,
foon after he had befiegcd and, taken the City of Rome.
At Beneventum a Council was Aflembled by Pope ViBt>r the
Third, who before his Elcdion to the Papacy was named Defrderiusy
Abbot in Cajjinatts^ chofen by thje Rqmam, not regarding, Gilbertus
whom the Emperor had made Pope. In this Copncil F;^/6*r th^
Thiid Anathematiz'd Gilbertus Bi(hop of Ravenna,
At
a7id Convocations*
^15
At Clermont in Overnie o^France^in the year, 10^5. Urhanm the ^f cltmont
JSecoiid convened a great Aflembly, wherein it was Ordained, That An. 1095. '
an Army fliould be raifedfor fupport of the dijirejjed Chriftians in
^erufalem, and reco'very of the Holy Land out of the hands of the
Infidels : The which was likewife Ordained in the Council of Pla-
centia^ and other Councils of the leflTer concern here omitted for •_. -^
Brevities fake. In the next, viz,, the 1 2th Century, there were
above 115 Councils: To inltance in the moft mataialof them may
fuflice for this Abridgment.
At Varis Urhanus the Second, at the complaint of AlexiusEm- ^^ ^"^'^ ^^^
peror of C<j»/?^^«?/??y^ againft the rage of the Turks i aiTembkd a Century.
Council of mofi: Nations, and was prcfent himfelf thereat. In this
Council were appointed i ccooc? Men out of the Wejftern Kingdoms
£ox the Holy Land. :;-7-jt o
At Florence Pope Vafchalis the Second conveiied' a Couricil, jq p/^^^^^;,
wherein the Bifhop of Florence was called to an acccunf fot An. mo.'
Preaching openly, That y^w/^<;^r^j(^ was already come i for which
he was (harply rebuked, and commanded,' That for time t<6 <5Qnie
he fhould utter no fuch Do(Srine.
At London^ in the year, 11 02* inthcThird y^r of th€ Reign At London
o(Hen. I. King of England) Jnfelm^ Archbilliop of Canterbury An, 1102.
aflembkd a Council for prohibiting the Marriage i of Priefis v aiid
the year following was coiiftrained toi ^convene anothti! Coiuicii at
St. Pauls m London^ to make Gonftituiions for the puntfettieat;- eC
fiKh asdehled riiem{elveswah5'c^omTiV<3/"Luft. ;.': iit? :
At Mentz,, An. i lod. a great Council was affembled againft th^ p^^ ^mt'^.
Emperor Henry ^th, whom tfTef condemned of Herelifi,^ whkh wa^ An. iic(5.
S'wnny^ becaufe he would h6t refign thfc fighit.o^inyeftm€<^ Bifhop^
into t-he Popes hands, andliavirtgE^ecoiyrtiiUnitat^d hln^ tCW)kofi'lfi^
Imperial Crown*
At Troyes in France^ in the year,i loj. Pope Tafchdis the Second At froyer,-^ ■:>
convened a Council, which treated concerning th€ Invefiure of ^^- "°7'
.B//?wpj, not to be in the Power of Lay-perfons.
At 'Trihuria in Fribur^h^ in the year, 1 1 rp. the: Bl^ops of Ger- At trlburia^
many affembled concerning the In-Vefiure of :!6ij!fefc^j''amifi!i opp0(p. ^^' * ^ op-
tion to the Emperor Hewr^ the Fifth. • ' :.:!;i,'?r! .:; r.l ri'iv)
At Senon a Council was called againft Ahelard^M by-teafon cf'his At Senon,
Hereiie ; He w3lS alfo accounted an Heretick ki the Couiicii of
Soyjjon. '*■' >>*'>^~" ' • ■; ■
The tkll Four L<?fcr<7» Councils are comprehei^ded undier- one i.tatiran, .
and the fame Title, as more favoaring the Roman Dififentidlis, fhail An. 1125.
the Dodlrine and Difciplvne of the Church : The iirft uiidet Hm",y
the Fifth, and Calixtus the Second, whith had 300 (or according to
Be//4?'w?if;e5poo>Bil]iopsjand 22- Canons. Iii thisCowncil Bui'dhn/s
the
£\6
Of Councils^ Synods^
2. Latiratty
Ao. 1131.
^.Latim,
4. uttrm.
At Papiii,
.An. II do.
t (
the Anti-Pope was laid alide, the Veftures with the Ring and Staff
were taken from the Emperor and given to the Pope •■> who abfolvccL^
the Emperor and gave him Power of eledting Gerw<?w Bifhops. Iif"'
this Council there were appointed CroJJes for the Sarazene War,b)^ ^
means whereof Pardon of Sins might be granted to them that under-
took that War, and to their Families.
The Secoi-td Lateran Council was under Lotharius the Emperor,
and Innocentius the Second, which incrcafed to the number of about
2oooBi(hops. This Council omitted Thirty Canons lately pub-
lifhdd by Gratian from the Fatlcan Library, which BeUarmim is
faid to reje<fl : It difcharged Teter ufurpingthe Roman See after Leo^
under the name of Anacletus the Second i branded for Hereticks
Teter of Bruis^ and Arnaldus of Brixia the Difciple of Teter Ahul-
lard, who rejeded Pedobaptifm, Church-buildings, and the Ado-
ration of the Crofs : It proclaimed thefe Lay-perfons to be Saaile-
gious, and incur the danger of eternal damnation, who receive
Tithes j and deprived Ufurers of Chriftian Burial, and curfed them
to Hell.
The Third Lateran Council was under Frederick the Firft and
Alexander the Third, by an Affembly of 30 Bifliops, who made up
the difference between this Alexander^ and one Otta'vianm and his
Succeflbrs Gindon and John^ z German taking up the quarrel with
him •> which DilTentions divided Europe into Parties. Alfo the Albi-
genfes under the name of Cathari^ Vublicans dr Paterini., taking
their Rife from the Waldenfes, were here condemned s Lombard^
who affirmed that Chrift according to his Manhood was nothing,
was Cenfured ; Ordinations made by Schifmaticks wholly abrogated,
Private Oratories and Priefts for Leprous Perfons appointed, and the
manner of Viiitations by Archbifliops, Biftiops, and Deacons pre-
fcribed.
The Fourth Lateran Council was under Frederick the Second,
and Innocentius the Third, with 400 Bifliops and 80 other Fathers.
This Council rejeded the Book of Joachimus the Abbot againft P.
XoW7^^r//,ertablifhed Tranfubftantiation, Auricular ConfdTioH,and the
Papal Abfolution of Subje(5ts from their Allegiance : It exaded an
Oath from Secular Magiftrates to expel Hereticks nominated by the
Pope. This Council by Indulgencies encouraged thofe that went
with Croffes for recovery of the Holy Land under Godf-ey of Bul-
loigne i prohibited Plurality of Benefices, and Sale of R cliques.
At Papa, in the year,i i<5o. the Emperor Frederick the Firft con-
vened a Council,occalioned by the difference between Alexander the
Third,and ViBor the ^th.jiox the Popedom after the death of Adrian
the Fourth. In this Council Victor the Fourth was declared Pope.
Whereupon Alexander the Tliird convened a Council at Clere'
Monty
and Convocations. ^\n
mont^ m which he Curfed the Emperor, Pope ViBory and their
Adherents^
'^ At Row2^, in the year, 1180. a Council of 180 Bilhops was con- At Rmty
jfened by the Popes Authority. Their Confultations and Canons ^^' JiiSo.
were touching the form of Ele(^ing Popes for the future i alfo
touching Ecclefiaftical Dignities and Difcipline, touching Excom-
munication, Rcfidence, Continency, Plurality, Patronage, Presenta-
tions, Feftivals, Ufurers, Jews and Zaraz.ens^z\-\d the like.
At Ro?f7e^m the year, 12 1 5. Pope hmocentim the Third convened At Rome,
a General Council, wherein the Dodrine of Tranfubftantiation was ^°' *2i5.
ratified. This was another of the Lateran Councils.
At Lions Two Councils, the Firft called by Frederick the Se- i. At Lions,
cond, and Innocentius the Fourth, about the year, 1244. In this ^°* J" 244.
Council the Emperor that defervcd fo well of the Chriftian
Church againfl: the Infidels, was after four Excommunications
depofed by the Pope, prohibiting that any (hould name him Em-
feror : Being thus Depofed, he defends his Right by his Gihilines-
againft the Guelphes of the Papal Party. In this Council appears
no other Prefident than the Pope himfelf, who with 140 Biftiops
and Abbots endeavoured under colour of recovering the Holy
Land, by the Fifths of the Church to redeem the Eafi. By this
Council new Feftivals were inftituted for the Canonizing oiRoman
Saints. The Seventeen Inftitutions afcribrd to this Council, are
faid to be rather Political and Polemical than Ecclefiaftical, and
( according to Bellarrn'ine 3 are to be found in the Sixth of the
Decretals.
At L/o»* the other of thefeTwo Councils was under Redolphm 2. At Lions,
the Firft at Hajhunge^ procured by Gregory the Tcndi, confifting
of at Icaft Seven hundred Bilhops: In this Council was prefent
Michael Talaologtts the Greek Emperor. Acfutnoi fent for to this
Council, dies in his way thither, where Bonaventure^ after his being
created Cardinal, died alfo. In this Council the Pope in behalf of
the Holy Land requires a Subiidy, the Tenth of all Ecclefiaftical
Rights for the fpace of Six years. In this Council alfo it was or-
dered. That there .ftiould be bowing at the Name of JESUS.
There were 3 1 Conftitutions or Canons made by this Council ,
which though omitted by the Summulijts^ may yet be found in
the Sixth of the Decretals*
At Viennay'm the year, 13 ji. under ii/ew^ the Seventh, C/^wewf ^^ yienna
the Fifth being Pope, a General Council of above Three hundred An. 1311/.
Bilhops was convened. In this Council was fet forth a Book of'
Papal Decrees, called Liber Clsmemiarum^ which was ratified by
this Council ♦ In this Council alfo it was, that Corprs Chrijti
Day was Ordained to be a Feftivalj and the Order of femflers
to
^i8 Of Councils^ Synods^
^'Anmin, Hlfl. ^^ ^^ ^^^^^ aboliflied > for the jFcr^/^z/ew-Expedition being ftrongly
par..3.tit.ii.3« urged in this Council, the Templers are removed out of the way for
murtheringi of the AhtJJins AmbalTador, and other Impieties andj^
Herefies. Whether Tritbewim did hit the mark or not, it matteri^
not \ Notorious it is, That the Temfkrs were very Rich, but if that
were a fufficient pretence for Herefie and Expulfion ( as fome con-
ceive ) then there would be nofuch thing as the Church of Rome^
at leart not Orthodox. In this Council the Clergy are permitted
• 'to take an Oath of Allegiance,not of Subjcdion to Lay-Magiftrates \
!' d\£oPeter Jobn^ the Dulcimtfi-s, the FratriceSt^ the Begwards znd
Begwins^ together with the Lollards were condemned. Teter John.
was condemned for denying the Soul to be the form of Man '■> a new
piece of Herefie again ft Natural Philofophy. The Conftitutions of
this Council under the name oiClementme^ are extant in five Books
for a Supplement of the Canon Law i in which is that famous
Deaee of Conftituting ProfeJJbrs to be maiiiitained by a competent
Stipend at the Court of R<7we, at theUniverfities ofP^m, Oxford^
Bononia^ and Salamanca^ for the infi:rud:ing in the Hebrew., Aror
Clm\.*,Xv.,u yick and Chaldee Languages, whereby the Je-ws and Mahumetans
Gal. 1. 7. might the moreeafily be converted to the Faith.
LAW Alt ^^^ V\kh Later an Council, in the year, 1 3 1 1 . under Maximilian
An. 1311.' the Emperor, Vo^e Julius II. Prefident thereof. It is fuppofcd this;
Vid. prideaux Council was called for difannulling another at Pifa, where fome
his Synopf. of Cardinals were met againft the Pope. There were convened at this
^^ut'oxon. Co"»^i^ I H Bifliops, and it had Twelve Selfions, Five whereof
were under Julius j the other Seven were finiflied by Leo the Tenth.
■ Suarez,^ Cajetan^ and Navarr profefs this to be a rejelStcd Council.
The pragmatical Decree made at the Council of Bajil^ in defence
of Ecckliaflical Liberty againft Popifli Ufurpations, is here difcuffed
and exploded. The Immortality of the Soul is here alfo defended,
concerning which many at that time doubted it, others wantonly
difputed itj and others heretically denied it. By this Council a re-
firaint is laid on fuch as in Preaching wreft the Scriptures at their
plcafure to uphold and difperfe fome ftrange Opinions ; which re-
Itraint extended alfo to the impreffion of Books not Orthodox, nor
Licenfed as fuch.
I. At Pf/i, At Vifa^ in the year, 1 40p. was Cas fome call it) a General Coun-
AQe 140^. cil, confining of Twenty three Cardinals, Three Patriarchs, three
hundred ArchbilTiops and Bifliops , Twenty eight Governors of
Monafteries,. and a very great number of Divines, and AmbaiTa-
dors of Princes. The great Diffention between Bemdi^ the
Twelfth, and Gregory the Thirteenth was the occafion of this great
and Firli Council at Pifa. Both which having been Summoned,
aie Depofed by^ this Council , and Alexander the Eighth placed
ill
and Co7ivocations, ^^^
^U^ w„h a double I,.pom„.e, .„d cpuS 'Z b'etnfe
Council witlii,-; two ma^^RL hi, Fl.rtf '° "I'V ^^i"""'
b.t this not being p^Hor'^Tfot ofKrV^L ^2!*
Oath cie^s h,mfeir, and dies. Le, the tenth fceeds co bit
the Council, and ratihes many Decrees i whereuron theP^rJl <"
d,nal,up.MheirS.b™.Iionlerefioredto.S,^'e:&
^^«y thi;.,coUinf S^ot.^^^^^^^^^ -. .f„.
«or , for the Removing of the Pc,p,jh Sch,fms out of the Weftem
^rts, and pac^y.ng the Difference which happened betwem
Three Popes allftriving for the Popedom, ^«. P^^W^ whom
theJ^Wfetup: PopeGr.^^r,, whom the f Jj-«7,; a",^
yStl^'^^Tn 'riZ'f' "P- "^"^'^ Council cold, u'i four
tmns (letted Pope. Others relate it fomewhat otherwifr Ae if
after Gr^ory the eleventh, fome Cardinals exalted "^c feth
hk p la^e but ^ / ^'"^ " S*""'' ^""f"" ^^'^ "i'«h Cuppli^
T«r o? G44''^f ;:eifr'"c?:'r ,r"r'^ '''■" ™"'^' *^
f .V u- c '^'^^^''vj'ie tweit n. Clement alio beine; removed hari
S dirf t-'^lh ^^-^""^ ^ 'rr''' under tirmrofS
fcLt Pr ?° T"™'' rf'kFbmethe Cardinals and
S 3e t^f T>1 V w'' ''''i' ™?^f '^~' ""'^ *e Papal
S V ,""''"""= J«<= of '^/"Wer the fifth, who fickenina
fudd ,^y by an mtox,cai,ng Clyfler, was fucceeded by 7 J Ae " ^
byEfea,o„ofthe7Y.« Cardials,. who by thcpettfof thf
Xxxx ftia
^ 2 o Of Councils^ Synods^
faid Emperor Sigifwund called this Council at Confiance^ and be-
ing preient at the fame, was firft accufed of many Crimes, then*,
depofed, and Martin the fifth exalted by the Council to the Pa-
pal dignity. There were 45 Scflions of this Council, in the %th
whereof the Dodtrine of John WickUffe v^as condemned, and his
Bones ordered to be taken out of his Sepulcher and burnt. In the
l3f;&Seffion thereof it was ordained, That no Prieft under pain
of Excommunication, iliould communicate unto the People under
both kinds of Bread and Wine. In the i 'yth SelFion the Sentence of
Condemnation of John HuJJe was read and publifhed, and him-
felf delivered to the Secular Power to be burnt. In the 21 Sellibn-,
the Sentence of Condemnation was pronounced againft Jerome of
Trague^ who was alfo delivered to the Secular Power to be burnt.
In this Council it was concluded. That the Council' is above
the Pope •, and that an Engagement with an Heretick is not to
be kept.
At Bay?/, At Bafil in the y^ar 143 1 , was a General Council aflcmbled,
An. 1451. procured by Sigifmnnd the Emperor, of Pope Martin the fifth, and
afterwards of Eugenius the fourth, in which, Cardinal Julian of
^rf/^z/MW was Preildent, and whicii continued nigh i§ years. Thi?
Council had 45 Sellions, and therein it was alfo concluded (as in
that of Confiance^) That the General Council is above the POpc,
and that all perfons ought to be {ubje(5]: to the General Council, as
Children are fubjedt to the Authority of their Mother. Pope Eu-
genius confirmed this Council by his Apoftolical Letters, whom
notwithftanding this Council depofed, and -in his fbora^ chofe A-,
wedeus Duke oi Savoy to be Popejwhom. they called :Fk7/;c the '^th.
For this Pope Eitgeniu-s the fourth, being cited and not appearing^
was depofed for his Contempt, and the faid Amedeus Duke of Sa-
handia^ who lived an Her mites life in the Mountains of Ri^alia^ by
the Cardinals is exalted to the Popedom, and ftiled Fcelix the
lifth. Befides the declaring here. That the Council is above the
Pope.: It was alfo confirmed. That the Pope cannot difTolve, pro^
long or remove the Council, being lawfully called. Yet after this
the faid Eugenius conftituted an Anti-Synod at Ferraria^ which af-
terwards, removed to F/or^wrf, where he a6ted with the Grf^i: J, the
Emperor being prefent. They of Bajil mean while confirmed the
pragmatical Decree, condemned Popifli Bafrardy, fuppreifed Con-
cubines, and ordered how the Jews might be brought toChriftia-
inity. They declared alfo the Blejfed Firgin to be free from the coivr
tagion of every Sin,indulged to the L^y-Bohemians the ufe of the
Cup in the EuchariB^ and by rcafon of a raging Pelhlence betake
themfelves from Bajil to Laufanna^ where the Emperor Frederick
l^jffwadied Duke Amedeus to renounce the felicity of Pope Fxlix.
At
and Convocations:: 621
At Florence in the year 1 43 1 . a Council contrary to that at Bajtl, ^^ F/«r«f/,
yet fitting and undilTolved, wzs held by ?opc Eugemm, in which ^°* ^^^^'
'^Council the Emperor and Patriarch of Confianttttofle with many
-^others of the Greek Church were prefent, and were prevailed
with to yield to many points of the Roman Church, but could
never be prevailed with to believe their Dodrine of Tranfubftan-
tiation. ■ "Dm Florentine Council began at F<?rr<?r/<?, under Alber-
tm Emperor, and Eugeniu^ the fourth, whence by reafon of a
Peftilence it did remove to Florence^ and was there fini(hed. In this
Council were 141 Biftiops, the Pope hirafelf Prefident, who de-
pofed the Council o^Bafil at the fame time by the Germans. There
were prefent at this Council John TaUologus, with the Patriarch
Jofefb^znd the Greek Dodors. In this Council were debated cer-
' tain Articles concerning the Procedwg of the Holy Gkoff, with the
Addition to the NiceneCxted {^and from the Son,~\ Purgatory, the
Power of Suffrages, and Sacrifice to the Dead, Tranfubftantiation,
the Adminiftring unleavened Bread in the FuchariH^ but cfpecially
the Popes Supremacy.
At 7rent in the year 154^. was a Council held under Charles At Trtnt^
the fifth and Ferdinand the tenth, Vaul the third, Julius the ^°* * 54^»
third, Tius the fourth, Marcellm^ and Taulm the fourth i for
this Council continued no lefs than eighteen years : At the firft
Meeting whereof were feven SelTions in the two firft years
thereof The fccond Meeting was in the time of Pope Julizis
the third. An. 1 551. which had only three Seilions, by reafon of
Wars happening in Germany : At this fecond Meeting the French
King protefted againft this Council. The third Meeting whereof
was nine years after the fecond, it being appointed by Pope Tins
the fourth "? there having been in this interval, fince the (econd
Meeting, when Julius the third was Pope, two other Popes,
viZj. Marcellus and Vaulus the fourth. At this third and laft
Meeting there were nine Seilions, the laft whereof began the
third of December., An. i'^6^. The chief points treated of at
this Council were concerning the Scriptures, Original Sin, Jufti-
fication, the Sacraments in general, Baptifm, the removing of
the Council, theEucharift, Repentance, Extreamllndiion, Com-
munion of Lay-perfons under one kind, the Sacrifice of Mafs, the
Sacrament of Order, Matrimony, Purgatory, worfhipping of Rc-
liques, Invocation of Saints, Worfhipping of Images, Indulgen-
cies, the choice of Meats, Faftings, and Feftivals. The Miftory of
this Council of 'Trent is extant.
X X X X 2 Of
^2 2 Of Councils^ Synods^ &cc.
Of National Councils there have been many more than what
are before-racntionedj as here in Britain^ and in Italy, S^ain^f
France, Germany, the Eafiern and African. In Italy it is faid,^
that there are to be found 115 ilich Synods, as it were National,
which go under the Name of Roman Councils, But fuch as are of
the moft Remark in each of thcfe Countrys, and the principal
things they determined, you may find a touch of (and no more J
in the Learned Bilhop Prideaux's Synop/ts of Comctls^ in the ^pB
Chapter, Edit. 5. Oxon, 1^72.
^ 1l I ' I •"
CHAP.
62^
'k
^
GHAP. XLII.
Of Excommunication.
I. What Excommunication is \ It is Twofold.
2* By what Appellations the Greater and LelTer Excommumcatiott
are known and dijlinguijhed > their refpeBive derivations and
Jtgnifications, and the nature of each.
3. Ecclejiaftical Cenfmes in the general way he Threefold*
4. What the Law intends by Excommunication ipfo facSo,
5. What the Excommunicate is not debarrd of by Law.
6. Legal Requijttes to the due pronunciation of the Sentence of Ex-*
communication.
7. What courfe the Law takes with an Excommunicate, after forty
days fo perjifting obfiinate*
8. The federal Caafes of Excommunication x^^o fa(5to, enumerated
by Lindwood.
5?. The Caufes of Excommunication ipfo fado, by the Canons now
in force in the Church of England.
JQ, The fever al Writs at Law touching per fons Excommnicate^and
the Caufes to be contained in a Significavit, whereon the Ex*
communication proceeded.
1 1. What the Wrtts de Excommunicato Deliberando, alfo de
Excommunicato Recipiendo dofignifie in Law.
12. Afufficient and lawful Addition to be in ^^6^ Significavit, ttni
in the Excom. Capiendo Vid. SeB.io,
13. Several Stitutts touching Perfons Excommunicated.
14. Excommunication /or fir iking in the Church.
1 5: Whether a Bijhop hath Jurifdi^ion, or may Cite a Man out of
hts Diocefs.
l^. What are the Requifites ejS a Certificate of Excommunieatioii
for ft ay of AB ions -i and how it ought to be qualified.
17. ^ Signiticavit of Excommunication fornot anfwering Arti-
cles^ notfiiemng what they were^ not good.
18. By whom <«w Excommunication may he certified^ and how,
ip,.In what Cafe the Signilieavit of an Excommunication ought
to exprefi one of the Caufes mentioned in the Statute.
20. Whether a General Pardon doth difcharge an Excommunica-
tion for Contempt precedent to the Pardon^ or ffjaH difcharge
the Cofts of Court thereon.
2K A
^24 Of Exco77imu7iication,
21. A Man taken upon an Excom. Cap. and difcharged^ becaufe
the Signiticavit did not expref the farty to be C.owmoran^
ivithin the Bijhops Diocef at the time of the Excommunica-
tion.
2 2, Where a Man is i'ivice'^xcov[\m\m\C2JxX;iiAhether an Ahfoluticn
for the later fnall purge thefirft Excommunication.
■23. Whether a Prohibition lies to the Ecclefiaftical Court ^ upon ^
Cofis there ^iven^ not in an ABton at the fuit of the partj, baf
upon an Intbrmation there exhibited.
24. What remedy in Laiv for a party 'wrongfuUyV.XQoramMni-
cated, and fo remaining forty days^ -without fuing a Prohi-
bition.
25. Whether a Terfon taken by a Capias de Excom. Capiend. be
Bailable or not \ And -whether the Bijhop may take Bend of
the Excommunicate to perfrm fubmiffion for their Abfolw
'tion.
■AOo2^'H.8.c.?. {i^Xf^'^ccmmunication, Cortimoiily termed in the Common
I^ Law, in the Law-French thereof, Excommengment^ is
A-J a Cenfure of the Church, pronounced and inflided by
the Canon or fome Ecckfiaftical Judge lawfully Conftitutcd,
whereby the party againft whom it is fo pronounced, is pro tempore
deprived of the lawful participation and Communion of the Sa-
craments. And is alfo fometimes ('as to Offenders) a deprivation
of their Communion, and fequeftratj'on of their Perfons from
the converfe and fociety of the Faithful. And therefore it is diftin-
guifh'd into the Greater and LeJJcr Excommunication \ the Greater
comprizing as well the later as the former part of the abovefaid
definition or defcription i the Lejjer comprizing only the former
part thereof. De Except.c, a nobis. Lindw. de Cohab.Cler.gl.in verb*
Sacramenta, Exeommunicatto^ quafi, extra Communionem, For
Excommunication is, Extra Communionem Ecclefi<efeparatio\'ud
(4) 1 1 qnefl, _ Cenfura Ecclefiafiica excludens aliquem a Communione Pidelinm (a").
g. cap. nihil in This EcclefialHcal Cenfure, when it is juft, is not by any means
,]Dr. Can. ^^ y, ^^fpji^j q^ oppofed ; for Chrift himfelf is the Author
(fc)Mat.i8.i7. thereof f^> Anciently among the Hebrews., fuch perfons as were
I Cor. $.9.11. Excommunicated were termed Apofynagogi'^ as being quafi Synagega
:■& Thcff. 3. 14. exaBi., and to be (hun'd or avoided of all Men until they repented.
That of our Saviour in Mattb. 18. 17 [Let hin be unto thee as an
Heathen Man^and a Fublican] feems to refer to fome fuch Excom-
munication, the power whereof by way of Judicature being dien
in the Jewj(l} Sanhedrim, or Colledge of Elders.
(2.) This
Of Excommunication, 62^
(,2.) This Ecclefiaftical Genfure, when limited or reftrained
only to the LeJJer Excommunicationj the Theologtjls will have to be
"Undcrftood by the Greek word Anathema^ Accurfed or Separated ■•> GaJ^lfg^'
*lind when it extends to the Greater Excommunication, then to be i Cor.'i^'.ai. •
underftood by the Synackv^ox^. Maran-atha, or [Our Lord comet k']
j^natbema Maran-atha, {_Anathema^ Let htm be accurfed^ quafi.
Devoted tothe Devil^ and feparated from Chrifi and hts Churches
ComT^union: \_Maran-atha\ Some take this for a ^^-rz^f/^ word (<:). (c) Bf-^.Annor.-
Others, notfo well fatished with that Judgment, will have it^to io iCor.i(J.22.
be a Chaldee word, yet ufed in the Hebreiv^ and familiarly known
among the Gr^e^j C^> \_Maran'atha2 viz. \_Our Lord cometh^'](^\^'^^'"-^^^'
for Mar an is, Our Lord, and atha^ comet h i or rather three words ^^^j^ ^nxtorf,.
more properIy,t;i2S. Mara-na-atha^ Our Lord comet h. Being a word
ufed in the greateft Excommunication among the ChriUians, inti-
mating or implying. That they fummoned the perfon Excommu-
nicated before the dreadful Tribunal at the lait coming of the Son
of God, or that fuch as were under this cenfure of the Church,
were- given up and referved to the Lords coming, to be judged by
him h and mean while (without Repentance and AbfolutionJ are
to exped nothing, but the terrible coming of Chrift to take Ven-
geance of them. To which that Propheiie of Enoch feems to al-
lude, Behold, the Lord cometh with ten thouf amis of his Saints, ta.
execute Judgment upon all, d^c. The Venerable Mr. Bede doth fup-
pofe, that this anfwers to the heavieit Curfe among the Jews \
for they had ( I ) x!at\x\Niddm~\ {2) thax \_Cherefft] that is, A-
nathema. This their Cherem^ was either the limple and finglc Ana--
. thema, or thelxShematha or Maranatha : For this dreadful kind of
Excommunication, here called Maran-atha^ the Jews called Sama-
tha j Sem ilgnifying the name of God Tetragrammaton, or Jeho'
'vahi and atha, he co/veth -, though others will have that Samatha
to be derived from [^Sam"} that is [^their^"} and \lMitha2 that is
{^death,2 Their death. But not to infift further on the words where-
by this Eccleliaftical cenfure of Excommunication is fignified i for
that is butas aFlafh of Lightning, inrefpedt of the Thunder of the
Curfe it felf.
(^.) Although every Excommunication \s zn Ecclefiaftical Cen-
fure, yet every Ecceiiafhcal Cenfure is not an Excommunication i
for an Ecclcliaftical Cenfure may be as well j>er Sujpenjionem, and 1
Jer InterdiBum, as pr Excommunicationem. Extr. de 'verb. Jig. e»
quusre7iti. Hanc auttm Cenfuram fulminare fojjunt Ecclef.Tralatii ,
quibus ab homine^ Lege^ 'uel Canone^ aut Confuetudine tribuitur Jti^.
rtfdiBio.Ordmanat De Offic, Ord. <r. cum ab Ecclejiar*.
(40 ^^:
626 Of Excommunication.
4. It hath been fometimes queftioned, what the Law ii:tends by
Excommunication iffo faci'o\ that Claufe imports, ac fi diceret.
fpfo juref that is, tjuUo hominis minifierio intervemente. Not. per
. ^rch. de Refcrip. c, i. 'verb, ipfo jure, lib.6» Lindw. dtOfficArchiJ^
glojj'. in c, Ut Archtdiaconi^ 'verb, ipfo hdio. And regularly when
a perfon is Excommunicated, it is not intended only of the
LejJ'er Excommunication, Nam Exco^nmunkatiofifnpliciterprolata^
• intelligitur de Majeru Extr. de Sen, Excomm. c- St quern II. <f* 3.
debent. & Lindw. glo.(J, 'verb. Excommunic, e. Exhorrenda. De
■ Trocaratorib.
(5.J Notwithftanding the Law doth not exclude tlie Excom-
municate fromfuch lawful Ads, 2ls fine qui bus vix pctefi confiflere
•vita hominis. Gloffl ibid, in verb. Atiu Legit imo. And although
depending the Excommunication, he is ditqualihed to commence
Adlions at Law as a Plaintiff, yet he may ad fui defefifwnem ap-
peUare^ d^ act era in yudicio facere &" exercere^ qu^ adepvs defen*
jionern pertinent. Glojj'. Lindw. tbid. And according to Lindwoody
he may Matrimonium Contrahere '•> etiam d^ TeBari. Lindwood
ibid.
(6.) This Sentence of Excommunication ought not to be pro-
nounced againft Offenders other wife than rite d^ cum debitafolen-
mtate^ that is, juris or dine fervato\ and therefore the Canon re-
quires, That there iffue a Summons or previous Citation to the
Delinquent, before Sentence of Excommunication be pronounced
againit him. Priwo vocetur Delinquens propofiturus Caufam ratio-
'nabilem, quare pronunciari non debeat incidtJJ'e in diciam Sententi-
am. Ad effe6tum nantque quod aliquis devuncietur Excommunica-
Uis^ a Canone 'vel Confiituttone requiritur Citatio pravia. c. Si per
•vim 'vel alio modo. Ljin. de.Man. d^ Obed.c. inter quatuor.de Cenf.c.
fin. in Oec. cum glojj'. So likewife the Canon is, That NemoEx'
cojnwunicationempromulgety ubi Excejfus nonefi manifefius.;nifi Mo-
nitione Canonica pr^cedcnte.lAiidw.de Sententia Excom.cUt Archi-
diaconi. Unlefs the fame party for the fame caufe be Excommuni-
cated again, in which cale there needs not any previous Citation
or Monition, as before ; Nam Excommuntcatio qua fit fiapius ex ea"
dem Caufia^potefi fieri nulla Citatione..nuIlaq; Menitione fravia,Ibid,
c. praterea.'ver. Excommunicetur : For in truth this Excommunica-
tion in fuch cafe is not any new Sentence of Excommunication, but
only a Renovation of the former with an A^^^gravation i for which
reafon it is, that fuch Excommunication ax is again pronounced
againlt the fame perfon for the fame caufe repeated by him, may
'ht nulla Citatione^ nuUave Monitione pra.^edente. Ibid, d" Extr. de
Jnd^js. c. it a quorundam. Whence it doth appear. That a perfon
Excom-
Of Excommunication, 027
Excommunicated may be Excommunicated again, either for the
fame or forac other new Caufe. Ihid. & ^. q. 4. engeltrudaw. And
r»chough the firft Excommunication is in effed iufficient for the
fjedling fuch an one out of the Church, fo that he who is once caft
out of the Church, am^lim excludi non potefi i yet by this fecond
Denunciation there follows another cffed, and that is, That there-
by he may be reputed and held by all the Faithful in all places, as a
perfon utterly fhut out of the Church, donee fer fuum Judicetnfe-
cundumfoYmam Eccle/ia fuerit ahfoltttus* Glo£', ihid* verb, c^* </f-
nuncientur.
(1.) Alfo, when a perfon Excommunictted hath forty days Old N.B. 54,
perilled in his obRinacy contrary to Law under that Sentence, 35- •>• j
the Bilhop may then make his humble Addrefs to the King for
the apprehending and imprifoning fuch obftinatc Excommuni-
cates •, but this may not be done by any inferiour to a Bilhop, '^am
adrogatumfralatoruminferiorum Rex non confuevit fcribere fro
Captione Excommuhicatortim. Wndvf.de Sententia Excom.c.pratereai
glofi', in 'Verb, Vralatorum. And therefore if a Man be Excommu-
nicated by any inferiour to a Bifhop, as by a Dean, Archdeacon,
or the like, yet the Supplication for his Majefties Writ ought to
be by the Bifliop of that Diocefe, and in liis Name •, Nam Inferi-
ores Epfco^is non fojfunt invocare Brachium Seculare. Ibid, c^
Lindw. de Cohab. Cier. c^ Mul. c. i. ^. ^ fi nee. ver. Brachium
Seculare. And in cafe the Bifhop fhall herein refufe to do what
the Law requires, he may be conftrained thereto by the Arch-
bilhop. Ibid, d^ dcjur* fatron. c. nullus; Nor can the Excommu-
nicated perfon, who (after forty days perfifting in his obftinacyj
is upon the Kings Writ Con the Significavit) fro Corp. Excom,
Capiendo apprehended, or like to be apprehended, evade Impri-
fonment, or defend himfelf by an Appeal, or by vertue thereof,
or by ffiewing the fame to the Temporal Judge, that fo under
pretence of a dependency of an Appeal he may efcape Imprifon-
ment \ becaufe fuch Appeal as to the validity or invalidity thereof,
or teneat vel non teneat^ legitima vel non legiti?na^ falls under the
fcrutiny and examination , not of the Temporal, but Eccleli-
afticail Judge !> and therefore, fitalis indagatio five dtfcujjio pertains
' not to the Secular Judge, it were frivolous to alledge that before
one not qualified to examine the merits of the Appeal. Di^i. c,
praterea. glojf. in verb. Dart debet* And as perfons Excommuni-
cated cannot legally have any fhelter or fubterfuge under pretence
of fuch Appeals : fo neither do the Canons fuffer the Contem-
ners of this Sentence of Excommunication to go unpuniflied i
under which number regularly and generally are computed all
(uch as mimo indurato dio perfevere under Excommunication by
Y y y y the
^2 8 Of Excommunication.
the fpacc of forty days •, according to the Cuftom of the Realm ^
of England. Lindw. de Sententia Excom. c. ut Archidiaconi, gloD,
in tferb, Centemnentes. But more particularly the Canons hold
them Contemners of this Excommunication, who add Culpazn ^
€ulfa '■, or go into the Church, albeit Divine Service be not then
celebrating, unlefs it be to hear the Word preached, which being
ended, he is immediately to depart s or ftand at the Church-door
in the time of Divine Service, and hearing the fame, albeit he go
not within the Church it felf, or thruft himfelf into the company
of others, when it is in his power to avoid it i or lafily, when he
continues too long ftture under fuch Sentence of Excommunica-
tion without repentance, whereby the Law concludes him fo
manacled by his obftinacy, as no Spiritual Phyfick can have any
operation upon him : And although regularly the Return of fuch
a one is to be expedled ufq\ ad annum •-, yet in this Kingdom (quoad
invocatione?n Brachii S ocularis) it is fufHcient if forty days be ex-
pired after his Excommunication. Ibid. c. i. author it ate glojj'. in
'verb. Contemnentes. And whereas we often in the Law meet with
certain Cafes of Offences, incurring the Sentence of Excommu-
nication i^fo fabh^ that is, as aforefaid, nuUo homines ■miniflerie
ifitewemente i Requiritur tamen.evm in that cafe, Sententia Decla-
ratoria, C. cum fecund. Leges, de Haret. li. 6. ^ Lindw. de Forp
Ccmp* c» I. gl'off'. in 'Verb, IffofaBo*
f S J It is therefore not impertinent here to inlert, what prin-
cipally tbofe Offences are, on the Guilty whereof the Law doth
mflid: this Excommunication ipfo faBo. Lind-wood tells us, that
there are found among the Canons and Conftitutions Provincial
theie Cafes following, wherein Excommunication iffo faBo is
incurred i njtZj. (i) A wilful and malicious impeding the execu-
tion of the Canon againff Incontinency, fpccially in Ecclefiafticks
as to Concubines. {2) A clandeffine and furreptitious Proceeding
at Law, even to the Writ of Banifhment, againftan innocent per-
fon, and ignorant of the Proceeding, f 3 ) Bigamy. C4) Falfe
Acculing of any Innocent Clergy-man before a Temporal Judge,
'ivhereby he happens to fuffer under the Secular Power. (5 J A
feying Snares to entrap any in holy Orders ; whereby afterwards
to charge them falfly before the Secular Powers with Crimes,
whereof they were not Guilty* (6) A violation of lawful Se-
queftrations made by the Biftiops, their Vicavs general, or prin-
cipal Officials, (j) The exercife of Ecdefiaftical Jurifdidion by
any Clerk married, or by any Lay-perfon, in matters only and
properly pertaining to the cognizance of the Church. (8j Dif-
obedience to the Gregorian Conftitution, forbidding the holding
of two Benefices Incompatible cu?n Cara ammarum without a
DifpcA"
' /
Of Exco7?i7nunicati6n. 629
Difpeniation. (9) A procuring to be prefented to a Benefice that
is^alre^cly full of an Incuinbent, by vertue of the Writs of Quare
nonadmifit^ or Q»are Impedttj or the like. (10) Abett<5rs aiidi
ndvifors of any to fraudulent Conveyances or Deeds of Gift in
fraudem Ecclejia^ Regts Creditorum^ aut haredum, (11) All fuch
as hinder any of what quality foever, that are legally Teftable,
firom making their laft Wills and Teilameiits, or afterwards do
unjuftly obftrudf the due execution of the fame. C12J All fuch
as hinder the devotion of the people, in making their Offerings
and paying their Tithes , converting them to their own u(e.
C13J All fuch as deny the gathering of the Tithes of any Fruit,
or moleft and hinder the Colledors thereof. (14) All Lay-
perfons who ufurp upon fuch Oblations and Offerings as are due
and appertain only to Ecclefiaftical Perfons, without their affent
and the affent of the Bifhop. (I'y) Sacrilegious Perfons, and all
fuch as invade the juft Rights, Liberties, or Revenues of the
Church, or otherwife unjulily poffefs themfelves de bonis Ecclc
Jiafticjs* (16) All Bailiffs and other Officers, that unjuftly enter
upon the Goods of the Church, or unduly exad from the fame,
or commit Waff upon any the Revenues of a Church vacant.
f 17J All oppugners of Epifcopal Authority, or that refift and
oppofe the exercife of Eccleliaftical Jurifdidion, and all fuch as
diflvvade others from their due obedience thereunto, (i^) All
fuch as being imprifoned for their contempt to fome Ecclefiaftical
Sentence, arc thence fet at liberty contrary to the Liberties and
Cuftoms of the Church of England^ being Excommunicate per-
fons when they were firft apprehended, (ip) All fuch as vio-
lently ufurp upon the propriety of fuch Trees and Fruits as grow
in the Church-yards, rooting them up or felling them down, or
mowing down the Grafs thereof, contrary to the will and with-
out the confent of the RedJor, or Vicar of any Church or Chap-
pel, or their Tenants. (20) All fuch as fhould nonrite folem-
niie prohibited Marriages, that is, fuch as have any Canonical
Impediment. (21) All fuch as contrary to the tiue Catholick
Senfe (hall aflert any thing, or lay dow pofitions, or make pro-
pofitions, favouring of Herefie, publickly in the Schools. C22)
All fuch as in their Preaching, or otherwife, (hall violate the
, Canon, that enjoyns a due examination and approbation of per-
i. fons before they are admitted to Preach the Word of God.
t (23) All luchas touching the Sacraments affert anything befide
or contrary to the determination of the Church, or call fuch
things into doubt publickly, as are defined and ffated by the
■Church. (24) All fuch as in the Univerfities do (after a premonition
to the contrary J hold any Opinions, or affert any Dodrines, Pro-
Yyyy 2 pofitions
^2o Of Excomnuinication,
pofitions or Gondulions, touchrng the Gatholick Faith, or good
Manners^ of an ill tendencyj contrary to the determination of xkz
Church.. C25) All fuch Clerks as without Ecclefial^cal Authoi^-
ty, fhall of themfelves or by any Lay-power intrude themfelves
into the polTeflion of any Parochial Church, or other Eccleliafii-
cal Living, having Cur am animarumi Thefe Cafes, and fbme 0-
thers, now not of ufe in this Realm, are enumerated by Lindwood.
Lindvv.. ^^ Sententia Excom. C4 uh. glcj]'. in "verb. Candelfs accevjis.
But there are very many other Cafes in the Canon Law that fait
under this Excommunication iffo faBo^ by which in the Law is
ever underftood the Major Excommunicatio^ and was wont to be
publifhed and denounced in the- Church four Solemn days in every
year, when the Congregatioi? was likelieft to be moft full, and x\\d.t
in Majorem terrorsTn.
($.) The Caufes of ExGommiuiication ipfo faBo^ according to
the Conllitutions and Canons Ecclefiaftical of the Church oC
England^ now in force, are fuch as thefe, vlx^. (i) Impugners of
die Kings Supremacy. (2) Affirmers of the Church of England, ■
as now eftablifhed, to be not a true and Apoftolical Church;
(3) ImpugnerS'Of the Publick Worfhip of God, eflablifh'd in the
Church. C4). Impugners of the Articles of Religion, eilablifhcd
in the Church of England.. (5) Impugners of the Rites and
Ceremonies eibbliflied in the Church of England. (6) Impug-
ners of the Government of the Church by Archbifhops, BifliopSj
^^' (7 )• Impugners of the Form of making and confecrating
Archbiflips, Biliiops, &c.- in the Church of England. (8) Au-
thors of Schifms in the Church. (9) Maintainers of Schifma-
ticks , Conventicles , and Conftitutions made in Conventicles.
Likewife by tlie faid Canons, the Ecclefiaftical Cenfure of Ex-
communication is incurr'd by all fuch Miniliers, as revolt from
the Articles unto which they fubfcribed at their being made Mi-
nifters, and do not reform after a Months fufpenfion : Alfo, by all
fuch perfons as refufe the Sacraments at the hands of Unpreaching
Minifters, after a Months obftinacy, being iirft -fnfpended ■, alfo,
by all fuch Minifters as without their Ordinaries Licenfe under
his Hand and Seal, appoint or keep any Solemn Fads either pub-
lickly or in private Houfes, having been formerly fufpended for
the fame fault , and finally by all Minifters who hold any private
Conventicles, to confult on any thing tending to the impeaching
or depraving of the Dodrine of the Church of Emgland^ or of^
the Book-of , Common-Prayer, or of any part of the Government,
and Difcipline now eftablifhed in the Church of England^ which by;
the.{eventy thirdCanon, is Excommunication iffo faBo.
(ip,X Touch-
^- ■ /
Of Excommunication. 6^i
. Cioj Touching perfons thus Excommunicated, perilling for-
, ty days in their obftinacy, there are three feveral Writs at the
Law, ilTuingfrom the Secular Power, 'viz. Excommunicato Capi-
endo : Excommunicato Deliberamlo : Excommunicato Recipience
The Excommunicato Capiendo is a Writ iffuing out of Chancery^
dired:ed to the Sheriffj tor the apprehending and impriibning of
him who hath obftinately flood Excommunicated forty days j for
the contempt to theEcclefiafticalLaws, of fuch not in the interim
obtaining their Abfolution, being by the Ordinary certified or
(ignified into Chancery^ the faid Writ iiTues thence for the appre-
hending and imprifoning them without Bail or Mainprize, until
they conform (b). Which Writ, as by the Statute of 5- Eliz* r^)f.NB. foT.
c. 23. is to be awarded out of the High Court of Chajtcery^ (o it '^^•Sfat.sEliz.
is to iiTue thence only in Terin time, and retornable in the Kings wnts U < Jfl
Bench the Term next after the Tefie thereof, and to contain at
leaft twenty days between the 'Xeiie and the Return thereof.
And in cafe the Offender againft whom fuch Writ fhall be a-
warded, fhall not therein have a fufficient and lawful Addition,
according to the form of the Statute of 1 H. 5. Or if in the 5"/^-
nifica'vit it be not contained, That the Excommunication doth
proceed upon Tome caufe of Contemptj or fome Original matter
of Hcrefie, or refufing to have their Children Baptized, or to re-<
ceive the Holy Communion, as it is now ufed in the Church of
England^ or to come to Divine Service, now commonly ufed in
the faid Church, or Error in matters of Religion or^Dodrine^
now, received and allowed in the faid Church, Incontinency, Ufu-
ry, Simony, Perjury in the Eccledaftical Court, or Idolatry :
That then all F^iins and Forfeitures limited againft fuch perfons
Excommunicate by the faid Statute of 5 Eliz,. 2^, by reafon of
(uchWnt oi Excom, Capiend, wanting fufficient Addition, or of
fuch Significavit wanting all theCaufcs aforefaid, are void in Law
{c\ CO Did. Sr, 5,
(II, The Excommunicato Deliberando^ is a Writ to the Under- El. 21.
Sheriff, for the releafing and delivery of the Excommunicate P^r"oidNB2< a
fon out of Prifon, upon Certificate from the Ordinary into the-
Chancery of his Submiffion, fatisfadion, or. conformity to the:
Ecclefiai}ical.Juri(di(^ion {d). And the Excommunicato Recipi- (i) F.N B.f.^g.
endo^ is a Writ whereby Excommunicated perfons, who by realon R^g* of Writs,
of their obAinacy having been committed to Prifon, and thence ^°'' °7*
unduly delivered, before they had given fufficient Caution or Se-
curity to obey the Authority of the Church, are to be fought fory
and committed again to Prifon (e)> This Sentence of Exfom-^-^) p^g Qf ,
municationby the <55fj& Canon pronounced againft any, and not Wtm. ibid* .
abfolved within thiec Months next after, is every fjxth Months.
cnfuing.
^3 2 Of Excovimunication.
enfaing, as well in the Parifh Church, as in the Cathedral of the
Diocels wherein they remain, by the Minifter openly in time of Di- ,
vine Service upon fome Sunday, to be denounced and declared Ex- ,
communicate, and where by the 6%th Canon Minillers are enjoyned
not to refufe to Bury, it is with an exception to fuch perfons de-
ceafed, as were denounced excommunicated Majori Excommunica-
tiotie j for fome grievous and notorious Crime, and of wbofe rc-
'(/} Can. 6^,6Z. pcntance no Man is able to teilitie (f).
(ja.) A Sentence was given in the Chancellors Court 2X Oxford
at the Suit of B. againlt H. and thereupon H. was Excommunica-
ted, and taken in London^ upon the Writ ot Excom. Capiendo. And
it came into the Kings Bench, where he pleaded, That there was
no Addition in the Significavit^ according to the Statute of 5 Eliz,,
and thereupon prayed to be dilcharged. And the Opinion of the
Court was, That by the Statute of 5 Eliz,. the Penalties mention-
ed in the faid Statute are difcharged, but not the Imprifonment nor
{g) Hill. 5.Car. the Excommunication (g),
vefr. Bind^^ ^ ^ 3 • ^ ^y ^^"'^ Statute of 9 Ed. 2. 12 . the Writ de Excom. Cap-
Jones Rep.* ^^^^ "^^Y ^^ awarded to take a Clerk Excommunicate for Contu-
macy, after forty days. And by the Statute of p E. 2. 7. the
Kings Letters may not be fent to an Ordinary to abfolve an Ex-
communicate, but where the Kings Liberty is prejudiced. By the
Statute of 5 e^ <5 Ed. 6. cap. 4. ftriking, or laying of violent hands
upon any perfon in a Church or Church-yard, is Excommunica-
tion. And by the Statute of 2 Ed. 6. 13. it is Excommunication
to difobey the Sentence of an Ecclcfiallical Judge in Caufes of
Tithes. By the. Statute of 3 Jac. 4. the Sheriff may apprehend
a Popifh Recufant (landing Excommunicate ■•> and by the Statute
' ^^ 3 J^^' 5- ^ Popifli Recufant convidted fhall ftand as a perfon
Excommunicate. And by the Statute of 3 Ed.j. 15. he that is
Excommunicated (hall be debarred of Mainprize.
(14.) f^. againft E. in the Ecclefiaftical Court, where the Suit
was for flriking in the Church, which by the fecond Branch of
the Statute of 5 Ed. 6. cap. 4. is Excommunication ipfo faBo. By
which he furmized him incidijje in feenam ExcomwunicatioTtts. And
■ being granted, if, &c. And Ajhley (hewed caufe why it fhould
iiotiflue, %>iZ:> There ought to be a Declaration in the Eccleliafti-
cal Court of the Excommunication , before any may prohibit
him the Church, Richardfon faid, That the Proceedings are not
contrary to the Statute, but flood with the Statute. And it was
faid by Telverton^ It fcems there ought to be a Declaration in the
-Ecclefiallical Court: But the difference is, where it is Off.cium
Judicis^ or Ad infiantiam partis^ they will give CoftSj which
ought not to be. Hmon and Richardfon., If the party will
not ,
Of Excommunication, ^33
not profecLite it, none will take notice of it, and they proceed
*to give Cofts, then a Prohibition may be granted. And if he be a
Miniller, he ought to be fufpended for an offence againfi: the Sta- -
tute. And it ought to be hrll declared, and fo to Excommunica-
tion i and that cannot be pleaded, if it be not under Seal. Dyer 275.
And after all thefe were agreed by the Court, and no Prohibition
was granted (h). (h) Finn a.
(i 5O B. was fued in the Ecclefiaftical Court in a caufe of De- gai^-^ ^^^^on.
famation in another Diocefs than that wherein he lived, and be- ^^"^>'^ ^^P'
ing cited, was for Non-appearance Excommunicated, and upon
Significa'vit the Writ de Excomnjunicato Capiendo was awarded.
Serjeant Finchy Recorder, prayed a Su^erfcdeas for two Pveafons.
fi) Upon the Statute of 23 H. 8. becaufe he was fued out of the .
Diocefti to which the Court (-viz,. Jones and Wbitlock) anfwered.
That at the Common Law a Bifhop cannot cite a Man out of his
Diocefs. And that the Statute of 23 H. 8« inflids a puni(hraent,
&c. And Whitlock faid. That a Bi(hop hath not power of Jurif-
diction out of his Diocefs, but to abfolve him being Excommu-
nicate. {2) Upon the Statute of $ Eliz.cap.2^. becaufe the cafe
of Defamation is not within the Statute, and then tlie Statute E-
nadts, That it (hall be void. To which the Court anfwered, That
he ought to aver that by way of Plea, and fo alfo faid the Clerks
of the Court, that he ought to have fued a Habeas Corpus^ and
upon Return thereof to plead. But the Plea vi'as admitted ^^ bene
f^, and the party bailed (/)• . . . (i) Br ovens df.
(16.) No Letters of Excommunication are to be received in Latch. Rep.
flay of Adlion, if they are not under the Seal of the Ordinary
{k\ for an Excommunication under the Seal of the Commiflary C^} 20 H.5.r.
is not to be allowed in fuch cafe (I). If the principal caufe of (Qibid. Ad-
the A<3:ion, for whiqh the Excommunication was, be not com- judged,
prized within the Letter of the Certificate, it is not to be allowed-^
that fo it may appear to the Court, That the Ecclcfiailical Court
had Jurifdidion of the Caufe for which he was Excommunicated
(m). The Certificate ought to be Univerfis Ecclejia Filtis^ or to {^) i4H'4'
the Juflices of the Court where the Suit is 'to be ftayed («). _ Alfo .^^^j^^ H.d.sf.
the Excommunication certified ought to be duly dated, that is, the
Certificate ought to contain the day of the Excommunication (0). io) 20 H 6.25.
A Certificate by the Arclideacon is fufficient by the Cuftom O'^) ' g^^^^^""* '
And upon an Excommunicato C<(pendo, if it appears that the Ex-
commnnication was by an Archdeacon of fome certain place, it
ought alfo to appear either exprefly or by implication in the Cer- (q) 14 Jac,
tificate, that the matter for which the Excommunication was, was starlivgsC&k.
within his ]urifdi<ftion, otherwife it is not good C^). txcommmicA-
^ _ tion*
01') K
.^OA Of Excommunication,
(IJ.) F. being apprehended upon an Execmwunicata Capiendo,
feKcom. Cap. ^j^j j.^^g Sgvifica'uit being, That he was Excommunicated tor not
incmamty. g^Y^(^^cxm^ Articles, and not tliewing what they were, his difcharge *-
Was prayed for the Incertainty thereof, and per Curiam it is not*
good, and therefore was bailed: Coke 22 Ed.^. is. That a Man was
Hil!. 12 ]3c. Excommunicated for certain Caules, not good i and fo Co. 5. Arf-
"q^c ^"^ ^^^ ^"^-^ ^^^^ Schifmaticm inveteratus is not good Excommunication,
Rol.'Rcp. nor (hall be allowed in the caufe of him who Excommunicates him,
5 £. 3. quodftiit concejjum per Doderidge.
Ca.8. Trollops r^^'^ InT'roUops Czit it was refolved, That the Official can-
Cafe. '(<Jac. not certitie Excommunication, for none fliall do that, bathe to
whom the Court may write to aflbil the party, as the Bifhop and
Chancellor of C. or O. and for that if a Bifliop certihe.and die be-
fore the Return of the Writ, it (hall not be received, buttheSuc-
ceiTor fhall do it i and one Bifhop (hall not certihe an Excommu-
nication made by a Bifliop in another Court, but a Bifhop after E-
ledion before the Confecration may,and fo may the Vicar-General, if
it appears that the Bifliop is in Remotis agendas i alfo that the Suit
and the Caufe are to be expreffed in the Certihcat€, that the Tem-
poral Court may judge of the fufficiency, and if it be infufficient
Cas if a Bilhop certitie an Excommunication made by himfelf in his
own Caufe) the Court may write to abfolve him.
Tnn.6. Car. fipO H. was condemned in the Chancellors Court of Oxford,
B.^. Hughes in Coiis, and had not paid i zn Excommunicato Capiendo he'mg a-
Cafe. "warded upon a Significavit, returned and delivered here in Court,
ro. par, 3. g^cording to the Statute of % EliZj. cap. 23. He was Arrefted
hereupon. Refolved^ The Excommunication was good, though
ihtSigmficavit 6iOih. not mention any of theie Caufes in the Sta-
tute, but it is for other Caufes s but if any Capos with Proclama-
tions and Penalties be therein awarded, the Penalties be void un-
lefs the Significavit cxprefs it to be for one of the Caufes mentioned
in the Statute.
Tr. (^'Car.B.R. (^o.J hi another Cafe, where a Man was Excommunicated up-
The' King and on a Sentence in ihc Delegates {ox Ooiks inCaftigatione Morum^
Redmans Cafe. 2 1 Jac. a Capias with Proclamations ilTued ■■> and he being taken,
• Cro. par^j. ^oad tht Excommunicato Capiendo pleads. That the offence and
contempt was pardoned by the General Pardon of 21 Jac, It
was agreed, That the Pardon did not difcharge the Colts of the
party, which was taxed before the Pardon : It was moved there,
That as the Colts were not taken away, fo no more was the Ex-
communication, which is the means to enforce them to be paid.
But refolved, That this Excommunication before the Pardon, is
but for a Contempt to the Court, and all Contempts in all Courts
are difcharged "by the Pardon > wherefore the fame was dif-
charged >
/
Of ExcommunicaHon, ^^5
charged j and for the payment of the C.Qfts, the Patty is to have
iie\V Procefs. :1 sluBTsrl i-iifer
•• (21.) A man was taken upon an Extemmmkato Capiendo ; and Btmonts Cafir.
the Significa'vit did not mention, That he was commorant within ^'""'■^ R^P*
the Diocefs of the Biihop at the time of the Excommunication, and
for that caufe the Party was difcharged. And in an Adion where L. Abergavenny
an Excommunication was pleaded in Barr, and the Certificate of ^^^ Edwards
the Bi(hop of LflW^^ (hewed of it, but did not mention by what ^^^' ....
Bifliop the Party was Excommunicated, it was for that reafon ad- "^^ * ^ •
judged void.
(22.) Upon a Contradl Sentence in the Ecclefiaftical Court was, Mury Vovd
That the Defendant fhould marry the Plain tiff, he did not do it, for *°** Heman'i
which caufe he was Excommunicated. The Defendant appealed to Xf.y^'^ o^p^
the Delegates^ by whom the Caufe was remitted to the Judge a 'juo^
who Sentenced him agaiujwhere he wasalfo Excommunicated again
for non-performance of the Sentence : He appealed to tlie Court of
Audience, and then had Abfblution. He was taken h^^Cafias Ex-
com. upon the hrft Excommunication, upon a Habeas Corpus it was
Refolved, . That the abfolution for the later had not purged the firft
EXjCornmunication, quia Ecclefia deceptafuiu (2.) That the Appeal
did not fufpend the Excommunication, although it might fufpend
the Sentence.
C23.) In IVeJion and Ridges Cafe it was Refolved, That upon Mart ibid,
an Information exhibited in the Ecclefiaftical Court, for laying of
violent hands upon a Clerk, and Cofts there given againft the
Defendant, for which he was Excommunicated for not paying
them j a Prohibition (hould iflue forth, becaufe it was not at the
Suit of the Party, and Cofts are not grantablc there upon an Infor-
mation.
(24.) In the Cafe of Prohibitions it was Refolved, Alich. 8 Jac. Mich. 8 Jac.
That if a man be Excommunicated by the Ordinary, where he Co. lib. 12.
ought not, as after a General Pardon, &c. And the Defendant
being negligent, doth not fue a Prohibition, but remains Excom-
municate by Forty days, and upon Certificate in Chancery is
taken by the Kings Writ de Excommuntcato Capendo^ no Prohi-
bition lies in this cafe, becaufe he is taken by the Kings Writ.
Then it was moved, what Pvemedy the Party hath who is wrong-
fully Excommunicated : to which it was anfwered, he hath Three
Remedies, 'viz,. (i.) He may have a Writ out of Chancery to ab-
folve him, 14 H. ^. fol. 14. And with this agrees 7 Ed. 4. 14.
(2.) When he is Excommunicated againft the Law of this Realm,
fo that he cannot have a Writ de Cautione admittevda^ then he
ought Varere mandatis Ecclefia in forma Jurjs^ i. e. Ecclefiafiici^
where in truth it is Excommunicatio contra jm ^formam Jurts^\.^»
2jZT z Communis
^-26 Of Excovimunication,
,MS,J
C&mmmit Juris : But if he (hew his Caufe to the Bilhop, and
requeft him to aflbil him^either becaufe he was Excommunicate alter
the Offence pardoned, or that the Caufe did not appear in Ecckiv-
.aftical Cogniiance, and herefufe, he may have (as the Lord C<7;ft»
foys) an /^^ion fur le Cafe againft the Ordinary j and with this
agrees Dr. & Sttt.lfh.2.cap.^2.fo.i ip. (3.) If the Party be Ex-
communicated for none of the Caufes mentioned in the A6t of
5 Eltz.. cap. 23. then he may plead this in the Kings Bench, and To
avoid the Peiwlties in the Adt» Note, It was Refolved by the
Court, &c. That where one is cited before the Dean of the Arches
( in caufe of Defamation, for calling the Plaintiff Whore) oiit of
the Diocefs of London, againft the Statute of 23 K 8. and the
Plaintiff hath Sentence, and the Defendant is Excommunicated,
ant^fo G6minues Forty days \ and upon GertiHcate into Chancery
a Writ of Excommunicato Capiendo is granted, and the Defendant
taken and Imprifoned thereby, That he (hall not have a Prohibi-
tion upon the Statute of 23 H. 8. for no Writ in the Regijferc-x-
Co. ibid. fends to it i but there is a Writ there called De Cautione admittenJa
Je farendo Mandatis Ecclejiee^ when the Defendant is taken by the
Kings Writ De Excommunicate Capiendo^ and to afToil aiid dcli-
v« the Defendant.
(25.) Where the Court of B.R. was moved for the Bailing
of one, who was taken by force of 2i Capias de Excommunicato
Capiendo^ upon the Statute of 5 Eliz,, cap, 23. and came to the
Barr by a Habeas Corpus. Williams Jui^ice, He that is taken by;
force of a Capias de Excommunicato Capiendo, is not Bailable upon-
the Statute of 5 Eliz>,cap.2^. which Statute doth only difpenfe
with the Forfeiture of the Ten Pounds, and fuch a Perfon is not
Bailable ;> and as to the other matter, the fame remains as it was
before at the Common Law, and the Statute of 5 Eliz,. difpenfeth
only with the Penalty of Ten Pounds. Telverton Jufticeofthc
contrary Opinion, and that in this cafe he is Bailable. Flemming
Chief Juftice , This is a Cafe which doth deferve very good
confideration , and that therefore he would conlider well of it,
and alfo of the Statute of 5 Eliz.-. before he would deliver his
Opinion. Williams Juftice, Clearly he is not Bailable in this cafe.
Afterwards at another time, it was moved again unto the Court
to have him Bailed. Telverton Juliice, That he is Bailable i and
fo it was Refolved in one Keyfers Cafe, where he was taken by
a Writ De Excommunicato Capiendo^ brought hither by a Habeas
Corpus, and upon Caufe fhevi^ed he was Bailed by the Court, de
die m diem \ but neither the Sheriff nor any Juliice of Peace in the
Country can Bail fuch a one, but this Court here may well Bail,
as in the Cafe befoie, de die in diem. It was further alledged
here
Of ExcommurAcatim, £-27
her,c in this cafe,That in the Ecclefiatlical Court they would not there
'^ifcharge fuch a one, being taken and Imprifoned by force of fuch
a Writ, De Excommunicato Capendo^W\X\\(Mt a great Sum of Mony
there given, and a Bond entred into for the fame i otherwi(e no
difcharge there. Telverton Juftice and the whole Court,Thc Bishop
ought not to take fuch a Bond for the performance of their fubraif-
(ion. The Rule of the Court here in this ivas,That upon their fub-
miffion they (hall be Abfolved, without any fuch Bond entred into,
F lemming Chief Juftice, They (hall abfolve them, and if they per-
form^ not according to their promile and undertaking, they may
then be taken again by the Writ De Corpore BxcommUnicato Capi-
endo i but the Bifhop is to take no Bond of them for their Abfolu-
tion,to perform their Submiflion > the taking of fuch Bond by them
being againft the Law ; And as to the Bailment, all the Judges Cex-
cept Williams Juftice) did agjree that he was Bailable, and fo by the
Order and Rule of the Court he was Bailed. Vid. Bulfir, Rep.farA,
fo, 122, Tafch. 9 Jac. in Cafe oiHallvai. King,
!oqu JcriT (,.!) tb^iberjH il
Zzzz2 CHAP-
^38
CHAP. XLIIl.
Of the Statutes of Articuli Cleri, & Circum-
fpede agatis.
I. Several Statute-Laws relating to Ecckjtafikal Perfons and
things, enaBed under the Title of Articuli Cleri, in the Ninth
. ' year of King Ed. 2.
K Some other Statute- Laws toftching Ecclefiajtical Matters^ wade
the Fourteenth year of King Ed. 3.
3. The Ratification and Confirmation of the 35? Articles of Reli-
gion : The Suhfcripion required of the Clergy.
4. Certain Cafes wherein a Vrohihitim doth not lie to the Eccle/i-
afiical Courts, according to the Statute of Circumfpedle agatis,
made the Thirteenth of King Ed. i. And in what cafe a Con-
fultation]fc<?// he granted.
(i.) Tp^Thcfe are certain Statutes made in the time of King
I Ed.\. and Ed. 2. touching Perfons and Caufes Spiri-
-*- tual and Ecclefiaftical (a). By the latter of thcfe it
^i)AB.9Ed.2. J5 Enaded, (i.) That upon demand of Tithes, Oblations, &c.
An. i4Ed.3. ^^^^^ ^^^ ^^^^^^ ^ Prohibition (hall not lie, unlefs the demand be
(i; 2H.5. of Mony upon the Sale thereof {h), {2.) That upon debate of
fo. 10. Tithes amounting to a Fourth part of the whole, and arifing from
^ H^' % the Right of Patronage , as alfo upon demand of a Pecuniary
\l^'llVo% Penance, a Prohibition may lie : Not fo, in cafe of demand of
(O^iri.^. ' monyvHuntanly'accorded-unto by way of Redempti(^i of Cor-
^o- I?- poral Penance enjoyned (c). (3.) That upon demand of mony
28H.c.fo.2o. compounded for in lieu of Corporal Penance enjoyned for the
Beg foV/^o Excommunication, for laying violent hands on a Clerk, a Prohi-
V.N B. fo. i^, bition fhall not lie {d). (4-) That notwithftanding any Prohbi-
F.N.B. fo. 30, tion, the Ecclefiaftical Jurifdidion may take cognizance and cor-
J**-n ,- red in Cafes of Defamation, and the mony paid for redeem-
Coke ul°o!^' ing the Corporal Penance thereon enjoyned may receive , not-
465. " withftanding a Prohibition be (hewed Ce). ^5-) That no Probl-
em) Rcgift. bition (hall lie, where Tithe is demanded of a Mill newly ereded.
(?'5''5J'-'57. ^^>j jhat in cafes of a Mixt Cognizance (as in the Cafe
55 A. Raft?' aforefaid, of laying violent hands on a Glgrl^, whereby the Kings
(0 R*egm!' fo. 45, 49. F. N. B. fo. $2. m. 53- i Raf>. pi. to. 487, '&c. Co. lib.4. fo. 20. Ero.
Of the Statutes of Articuli Cleri, &c. 6-^^
F.eace is broken, and fuch like) the Temporal Court may difcufs the
^ fame matter, notwithftanding Judgment given by the Spiritual
^ Court in the cafe ( f), (7.) That the Kings Letters may not ifTue ^ /) ^«^- P^*
'to Ordinaries for the difcharge of Perfons Excommunicate, fave only ^^ y,
in fuch Cafes as wherein the Kings Liberty is prejudiced by fuch (o. le!^^^'
Excommunication (g). (8.) That Clerks in the Kings Service, (g) ^ kliz.23.
if they offend, (hall be corre^ by their Ordinaries, but Clerks, R^gi^' ^5-
during fuch time as they arc in his Service, fhall not be obliged to ^' ^* ^'^^-Sh
Refideuce at their Benetices (h). (p,) That Diflrefles (hall not be |\n.b. fo.^a
taken in the ancient Fees wherewith Churches have been endow'd j &c.
otherwife, in poffeflions of the Church newly purchafed by Ecdefi- 5 ^^4- 3* ^°* ^
aftical Perfons (i). (loO That fuch as abjure the Realm, Ihall be in rn'RegV*^^*
peace fo long as they be in the Church, or in the Kings Highway fb.'§8.
(k). (i I.) That Religious Houfesfhall not by compuliion be charged (i) Regift. fo.
with Penfions, Refort, or Purveyors (I). O2.) That a Clerk Ex- 98- 18?.
communicate,may be taken by the Kings Writ out of the Parifh where ^•^•^■f*'*'73i
he dwells. (13.) That the examination of the Ability of a Parfon Sc.^52*H. 3.15.
prefented unto a Benefice of the Church, ihall belong unto a Spiri- (k) f^ote, Thit
tual Judge Cw). Ci 40 That the Eledions to the Dignities of the j^*^ repealed
Church (hall be free without fear of any Temporal Power (n). ^^l r^c'^l^'
(15. ) That a Clerk flying into the Church for Felony, (hall not be (<; Raft.* pi.*
compelled to abjure the Realm (o). (i 6.) And lafily. That the Pri- 3^73^
viledge of the Church being demanded in due form by the Ordi- ?^\^5^'};'*
nary, (hall not be denied unto the Appellor, as to a Clerk confeiling fQ^. '
Felony before a Temporal Judge. F.N.E.fagj. i.
Raft. pi. 497.
Gokc lib. 5. fo. 57. Dyer fo. 27^ («3 St. 3 Ed. 1.5. (o) Note, This is alfo Repealed by chc
Statuteof I Jac. aj. & 21 Jac. 28.
(2,) In conformity to the premifTes there were other Statutes af- . p «
tcr made in the time of King Eci. 5. whereby it wasEnadted,
fi.) That the Goods of Spiritual Perfons fhould not, without their
own confents, be taken by Purveyors for the King. (2. ) That the
King (hall not collate or prefent to any vacant Church, Prebend,
Chappel, or other Benefice, in anothers Plight, but within Three
yitars next af^er the Avoidance (f)). (3.) That the Temporalties (p^ No.'f, This =
of Archbiftiops, Bifhops, &c. (hall not be feized into the Kings ** Repealed by
-hands without a juli caufe, and according to Law C^). (4.) That ?*^^^* ^^ ^•^'
no waft (hall be committed on the Temporalties of Bilhops during 2^5, ^^^' ^^ '
Vacancies, and that the Dean and Chapter may (if they pkafe) take Regift. fo. 32.
them to Farm (r). (5.) And laftly. That the Lord Chancellor or St. i Ed. 3. 2, ,
Lord Treafurer may, during fuch Vacancies, demife the Temporal- ^ ? p jj
ties of BUhopricks to the Dean and Chapter for the Kings u(e. ^ ^n *b.
(3O And
^^o Of the Statutes of
(5.) And as there arc ArticuU Cleric fo there arc alfo ArticuU
Religiotjis^ being in all Thirty nine \ Agreed upon at a Convoca-
An. 1552. St. tion of the Church of England^ An, i$62. Ratified by Queen*
13 Eliz. c, 12. Eliz,aheth under the Great Seal of England ^ Confirmed and Efta-*
SfoSn' ^^^^^^ ^y ^" ^^ ^^ Parliament, with his Majcfties Royal De-
taining of Do- claration prefixed thereunto. Which Ad of Parliament requires
ftrine againft^ a Subfcription by the Clergy to the faid Thirty nine Articles > the
the Articles, is fame alfo being required by the Canons niadc by the Clergy of
.Deprivation. £„giand2ii a Convocation held in London^ An. 1603. and ratified
by King James. The faid Subfcription refers to three Articles.
(i.) That the Kings Majefty under God is the only Supream Go-
vernor of the Realm, and of all other his Highneis Dominions
and Countries, &c. (2.) That the Book of Common Prayer, and
of Ordaining of Bifhops , Priefts, and Deacons, contauieth no-
thing in it contrary to the Word of God, &c. (3.) That he al-
loweth of the faid Thirty nine Articles of Religion, and acknow-
ledgeth them to be agreeable to the Word of God. By the Sta-
tute of 13 Eliz,. 12. the Delinquent is difaWed and deprived iffo
faBo^ but the Delinquent againft the Canon of King James^ is
to be profecuted and proceeded againft by the Ccnfures of the
^"^^ Elix ^^7^^' ^^^^^ W> And it is not fufficient, that one fubfaibe to the
&?l. 5. tip. in Thirty Nine Articles of ReMgion , with this Addition [ fb far
Gr«/t's Cafe, forth as the fame are agreeable to the Word of God. ] For it
hath been Refolved by Wra)/ Chief Juftice , and by all the
Judges of England^ That foch Subfcription is not according to
the Statute of 1 3 Eliz,* becaufe the Subfcription which the Sta-
tute requires muft be abfolute : but this is no other than Condi-
■ {t)'Vtrmij, tional (0.
B.R. Pafch.
'zyLWz. smiths Cafe. Vid. Co. Infl. p. 4.C. 74. verb; Subfcriptioxs,
(4.) The Circum^eBe agatis is the Title of a Statute made in
the Thirteenth year of Ed.l. An, D, 1285. prefcribing certain
Cafes to the Judges , wherein the Kings Prohibition doth not
Y«) Co.l.7.f.44' lie (»). As in cafe the Church-yard be left unclofed, or the
&I.S.f'^7' & Church it felf uncovered , the Ordinary may take Cognizance
^aSt'"'^* thereof, and by that Statute no Prohibition lies in the Cafe. Nor
in cafe a Parfon demands his Oblations, or the due and accuftom-
cd Tithes of his Pariftiioners > nor if one Parfon fue another far
Tithes great or fmall, fo as the fourth part of the Benefice be not
'demanded i nor in cafe a Parfon demand Mortuaries in places
where they have been ufed and accuftomed to be paid \ nor if the
Prelate of a Church, or a Patron demand of a Parfon a Penfion
'^ue to him > nor in the Cafe of laying violent hands on a Clerk i
nor
Articuli Cleri, & Circumfpedc agatis. ^4
nor in Cafes of Defamation where Mony is not demanded •> nor Ca*-} Reg. ^44.
in Cafe of Perjury. In ail which Cafes the Ecdefiaftical Judge ^- N. B. f. 50.
^hath Cognizance by the faid Statute, notwithftanding the Kings 5; 1?*^ ^
Prohibition. So that the end of that Statute is, to acquaint us Rift.'pia. 4I2.'
with certain Cafes wherein a Prohibition doth not lie. And the 12 H. 7. f. 22,
Statute of 24 Ed. (hews in what Cafe a Confultation is to be 2 H. 4. f. 9.
granted C5i'). And by the Statute of 'yOEd.^.cap. 4. no Prohibi- ^^i^fz- Conful-
tion (hall be allowed after a Confultation duly granted : pro- ^^j Reg, ^^45!
vided that the matter of the Libel be not enlarged, or othcrwife v.N. B.f. 33.
changed (x). I* • N. B. f 45. a.
CHAP.
6^2
CHAP, XLIV.
c
Of fever al Writs at the Common Law pertinent
to thk Subje£l.
1, What the Writ of Darrein Prefentment imports^ in what cafe it
lies, and hoiv it differs from a Quare Impedit.
"2. Allifede utrum,7i^W, and "why fo called,
3. Quarc Impedit, ivhat for^ and againfi "whom it lies,
4. What a Ne admittas imports^ the ufe and end thereof.
5. In what cafe the Writ QViLaica removenda] lies.
6. What the Writ Indicavit imports^ and the ufe thereof.
7. What the Writ Advocatione Vcdimxwm fignifies .
8. Admittcndo Clerico, what^ and in what cafe iffuable.
p. The Writ [Bencficio primo Ecclefiaftico habendo^ what*
10. The Writ [^Cautionc Admittcnda,^ and the effe^i thereof
Hi The Writof [QAtiiQO 'm{idi Sacros ordines conftituto, noiieli*
gendo ill Officium,] what the ufe or end thereof.
1 2. The Writ [Clerico capto per Statutum Mercatorum] what.
13. JVhat the Writ 0/ £Clerico convi<^o commifTo Goalae in defedlu
Ordinarij deliberando^l was.
14. What theff'rit of |^Annua Penfione^ was anciently.
1 5. The Writ of Vicario deliberando occafione cujufdam Recogni-
tionis] what.
1 6. Three Writs relating to Perfons Excommunicated,
1 7. ^JJlfe of Darrein Prefentmcnt brought after a Qnare Impedit in
the fame Caufe^ abates.
18. Difference of Vie as by an Incumbent^ in reject of his being in
by the Vrefentment of a Stranger^ and in reffett of his being
in by the Vrefentment of the Plaintiff' him f elf.
ip. Notwithflanding a recovery upon a Quare Impedit, the In--
- cumbent continues Incumbent <le h^o^ until Vrefentation bjt-
ihe Reco-verer.
20. Of what things a Quare Impedit lies^ and who jh all have it,
21. Who may have a Quare Impedit, and of what things.
2 2. How ^ and for whom the Writ 0/ Right of Advovvfon lies,
23. What the Writ de Jure Patronatus, and how the Lavj proceeds
thereon.
3 4, Tfhe. Writ of Spoliation, what^ and where it lies,
25. The
-perthient to this SuhjeEl, ^^^
a ^. Tht Writ Vi Laica removenda further exflaind,
?^. The Writ Quod Clerici non eligantur in Officium.
>
(i.) A Gainft the unlawful PolTeiror, who is the Ufurper, lieth
yA Three Writs, 'viz.. One of the Right, as the Writ
of Right of Advowfon '■> and the other two, of the
PolTeiTion , 'viz,, A ^are Impedit , and Darrein Trefentwent,
This Affile of Darrein Vrefentment or Jjfifa ultima Vrafentationis
is a Writ, which lieth where a man or his Anceftor hath prefented
a Clerk to a Church, and after ( the Church becoming void by
his death or otherwife ) a ftranger Prefents his Clerk to the fame
Church, in difturbance of him who had laft prefented. This Writ is
otherwife alfo ufed {a) i and differs from that of a Quare Itnpedit^
for the Quare Impedit lies upon difiurbance of one who hath the j ^ Vw.Braa.
Advowfon in his Prefentation, when the Church is void : The Rcgiorig.f.ao.
other lies, where a Man or his Anceltors had prefented before, and & F.N.B.f.ipj
now (the Church becoming void again) a ftranger Prefents in difiur-
bance of him who had laft prefented. Where ever a man may have
Affife of Darrein Trefentment^ he may have a Quare Impedit, but
not e contra {b)* He that hath Right to Prefent after the death of {h) Terms of
the Parfon, and bringcth no Quare Impedit nor Darrein Prefent- ^^^ ^^^^'
ment^ but fuffereth a ftranger to ufurp upon him, yet he ftiall have ^^^^ ^™P*
a Writ of right of Advowfon i but this Writ lieth not, unlefs he
claim to have the Advowfon to him and his Heirs in Fee-fimple ("0 Ibid.
(c). Where the Ordinary , Metropolitan, or King Prefents for pNB^^'^F^'
Lapfe, any of thefe Collatives will ferve the Patron for a poflcffion i^iich. if jac!
in his Affile oi Darrein Vrefentment (d)^ which Affile of Darrein Rot. 2542.
Trefentment may not be purchafed, pending a Quare Impedit^ for ^''^' ^^^ Glo-
the fame avoidances and therefore in the Cafe, where Willtam ^{[JV^'ecd-
St. Andrews brought a Writ of Alfize of Darrein Vrefentment ^tntry and *
againft the Archbilhop of Torky Mary Countefs of Shrewsbury^ Lichfield.
and one Hacker s and the Biftiop making default, the Countefs f'<'''' ^^P'
and Hacker pleaded in Abatement, that the Plaintiff before the iac.rot^^'2'*
Writ purchafed, brought a Quare Impedit againft the fame Defen- c. b. fiiSim
dants, and ftiews all certain, which remains undetermined, and Sr. Andretvs
averrs that they are both of the fame avoidance : And upon De- ^f![- Arch-
murrer the Writ was abated by Judgment (e). rork ^^tlioi
(2.) Affile de utrum or Ajfifa utrum^ is a Writ which lieth for Hob. Rep.
a Parfon againft a Lay-man, or for a Lay-man againft a Parfon, for (/) Vid.Brad.
Land and Tenements doubtful, whether it be Lay-Fee or Fee- 1.4. Traft. §.
Alms (f). Thefe Writs are called Jfjizes, probably either be- ^^^l^^^c^ti.
caufe they fettle the Poir€ffion,and fo an outward Right in him that ' ^'
obtains by them i or becaufe they were originally executed at a
certain time and place formerly appointed-, or becaufe they are
A a a a a tried
6aa Of feveral Writs at the Common Law^
tried moft commonly by efpecial Courts fee and appointed for that
purpofe. The Incumbent as touching his Right for his Redory,
hath the only Writ of Juris utrum^ and for his pofleffion any other
poffeflbry Adion. *
(3.) Quare Im^cdit is a Writ which lietb for him, who hath
purchafedan Advowibn in Grofs, or a Mannor with an Advow-
fon thereunto appendant, and againft him, who (when a Parfon
Incumbent dieth, or a Church otherwife becomes void) difiurb-
eth the other in the right of his Advowfon, by prefenting a Cleric
thereunto being void. This Writ is diftinguifh'd from the former
of Darrein Prefentment or JJJifa ultma Vrefentationis^ becaufe
this later lieth (as aforefaid) only where a Man or his Ancellors
formerly prefented, but the Quare Impedit lies properly for him,
. „ who himfelf was the Purchafer of the Advowfon \ though he that
ff 27. Brad. ' "^^y ^^^^ Affile of Darrein Frefentment, may have the other if he
L4:.Traft. 2. pleafe, but not (oViceVerfa, as was alfo before obferved. Yet
C.6. Brit. C.92. it is faid in Reg.Orig. f. 30. That a Quare Imfedtt is of a higher
F. N.B. f.32. jsj;jtufe, than an Affile of £)<:rm» Vrefentrmnt^ becaufe it fuppo-
&^We".2'.c?°! ^^fh t)0th a PofTellion and a Right (g). Which Quare Iwpedit the
(fojTrin.^i El. Executors of a Teftator may (as well as himfelf might) have upon
C. B. smjLl' a difturbance made to the Prefcntment j and fo was the Opinion
L^'oKf^' ^* ^^^ ^^^^^ ^^^^^ "^ Smallwoods Cafe againl^ the Bifhop of
(I) St. W ' 2. ^o'Vintry and Litchfield^ that the Executors may have a Quare Im-
& in dirt. C. ftdit upon a diiturbancc made to the Prefentation (^6), which Writ
(/^)Sc. 1 3 Ed. lieth alfo of a Chappel, Prcbead,&c. {i). And in cafe after the death
J.'^'^p^f"'^* of the Anceftor of him that Prefented his Clerk unto a Church,
{ oStat. ib. ^^ i^xixt Advowfon be ailigned in Dower to any Woman, or
Ficz. Damage, to Tenant by the Courtefie, who doth Prefent, and after the death
49. 17. 29.38. of fuch Tenant, the very Heir is difturbed to Prefent when the
^3. 106. fux- chuj-ch is void, it is in his eledion whether he will fue the Writ
Dv. f.igs.^l^' ^^ Qsfare Impedit or oi Darrein Vrefentment \ the which, it fecms,
241. Kel.f.57. is alfo 'to be obferved in Advowfons Demifed for term of life, or
Fiiz. En. 53. years, or in Fee Tail (>&). And Damages (hall be awarded in both
Co.l.6.f.48. jj^pfg Writs, that is, if the time of iix Months pafs by the dif^uu-
Brokisbm ^^"^^ ^^ ^^^y-> ^° ^^^^ ^^^^ Bifhop doth thereby Collate to the Church
Cafe 31 El. ic and the very Patron lofe his Prefentation for that turn. Damages
was relolved, ihall be av/arded for two years value of the Church : And if the
that an Execa- f^^ months be not elapfcd, but the Prefentment be deraigned
a°k jL.^for a ^i^^^i" ^^at time i then damages fliall be awarded to the half years
dinujbance value of the Church : And if the dillurbcr hath not wherewith
made in vita to fatisfie the Damages, where the Bifhop collateth by lapfe of
j'ifl.ito-'is^ if time, he fliall fuifer two years Imprifonment i and a half years im-
htz duacl' prifonment , where the Advowfon is deraigned within the half
vefted. y^^r CO- Ukevv'ife, he that recovers a Maunor, whereunto an Ad-
vowfon.
■pertineJit to this SuhjeSi, ^a^
vojvfon is appendant, being difturbed to prefent when the Church is
void, (hall have a Quare Impede (m). In which, as alfo in Affile (m) St.7 H.8.4
of Darrein Vrefenttnent^ plenarty of the Defendants or Diiiurbers ("^Sr.isEd.i.
party is no plea (n) \ but two Quare Imf edits of one Church, and ^\5*p ^ .
for one avoidance a man cannot have (o)i In the Cafe between the 15 Jac. Eof
King and the Bifliop of Norivich and Saker and Cole it was refolved Bedford verf.
that when one is Admitted, Inftituted and Indudcd, by the Pre- ^^^^ Bifhop of
fcntation of a common perfon, though it was upon an ufurpation ^^^^^^'
upon the King, yet the King cannot remove the Incumbent with-
out a ^ Iwpedit brought, for the Church is full of him till he be
removed— —Cr-f. par. 2.
C4O Ne admittasy'is a Writ that lieth for the Plaintiff in a Qua-
re Impedit, or him that hath an Adion of Darrein Prefentr^ent^ de-
pending in the Common Pleas, and feareth that the Bilhop will ad-
mit the Clerk of the Defendant during the dependency of the Suit
betwixt them* This Writ muft be fued within fix months next
after the Avoidance, becaufe after the fix months the Bifhop may
Prefent by the Lapfe. Therefore if the Patron of a Church Vacant,
having or not having any Controverfie depending with another
touching the right of Prefentation, doubteth that before he makes
his Prefentation, the Biftiop may collate a Clerk of his own, or ad-
mit a Clerk Prefented by another to the fame Benefice unto which
he hath fuch right of Prefentation, he may at his own Suit have this
Writ of Ni? admittas direded to the Bifliop forbidding him to col-
late or admit any to that Church during the time aforefaid (p), (p^ R^g. Orig.
(5.) Fi Laica Rewovenda^ is a Writ which (upon the Bidiops fo.^t. F.N. Bo
Certificate into Chancery of a force and refiftance touching a ^^' S7«
Church) lieth where a Debate or Controverfie is between two
Parfons for a Church, the one whereof doth enter into the Cliurch
with a fi:rong hand and great power of the Laity, holding the other
out, and keeping pofleflTion thereof vi & armis h whereupon he that
is fo held out of poflelTion may have the faid Writ direded to the
Sheriff of the County, to remove the force within that Church, and
(if need be) to raife the FoJJe Comitatiis to his affiftancc, and to Ar-
reft and Imprifon the Perfons that make refifiance, fo as to have
their Bodies before the King at a certain day to anfwcr the Con-
tempt : which Writ is ever made returnable, and is fometimes
grantable without the Bifhops Certificate, as aforefaid, for it may,
it (eems, be had upon a furmife made thereof by the Incumbent
himfelf without fuch Certificate i there being a difiindi and feveral
form thereof in each of the faid Cafes {a) So that this Writ pro- C<?)F.N.B fo,
perly lieth for the removal of any forcible pofieirion of a Church kept 54- ^^8- ^^S*
by Lay-mene • ^» "
A a a a a 2 {6.) In-
6a6 Of fever a I Writs at the Common Lavo^
(6.) Indicavit is a Writ in the nature of a Prohibition, ifluing
out of the Kings Temporal to his Eccleiiaftical Courts, and lieth
for the Patron of a Church, vvhofe Clerk is Defendant in fom£
Spiritual Court in an Adion of Tithes commenced againft him b^
another Clerk, and extending to the value of the fourth part of the
Church , or of the Tithes belonging thereunto i for in this Cafe
the Cogni73nce thereof belongs to the Kings Temporal Courts by
the Stat, of IVefim, 2. r. 5. wherefore, the Defendants Patron being
like to be prejudiced thereby in his Church and Advowfon, in cale
the Plaintiff fhould prevail and obtain ia the Spiritual Court
(y) Reg.Orig. (^r). So that this Writ lieth properly where there is a Conteft or
v*'a^oid N B Controveriie between two Clerks in an Ecclefiaftical Court of a
fo 31. and the Church, or part thereof for Difmes or Tithes amounting at the leaft
Beg.fo.55.and to the value of the Fourth part of the Church, In which regard
Brit.c.1051. tir. the Patron of the Clerk Defendant, lofinghis Advowfon in cafe
*• the Plaintiff Ihould recover in the Spiritual Court, (hall have this
Writ direded to the Clerk Plaintiff, or to the Officers of the Eccle-
fiaftical Court, commanding them to ceafe their EVoceedings, until
it be difcuft and decided in the Temporal Court, to whom the
Cogniiance of the Advowfon belongs ; This Writ (hall be be-
tween four Perfons, whereof two are Patrons, and two are Clerks j
and is not returnable as other Writs -■> but if they ceafe not their
Suit and Proceedings in the Eccleiiaftical Court, an Attachment
is) Terms Law iflucs {s)»
verb. Indica- (7.) Advocatione Decimarum is a Writ, that lieth for the claim
'"• of the fourth part or upwards of the Tithes that do belong to any
(c) Reg. Orig. Church (t).
fo. ?5. b. (8.) Admittendo Clerico is a Writ granted to him, who hath
recovered his Right of Prefentation againft the Bifliop in the Com-
lf;il\%f mon?k^s(H).
and found for (9-^ Beneficio Primo Ecclefia(iico habendo is a Writ direded from
&c. the King to the Lord Chancellor, to beftow the Benefice that fhall
iu) Reg. Orig. firft h\\ in the Kings gift, above or under fuch a value, upon this
(w) Reg. of (^^0 Cautione admittenda is a Writ that doth lie againft a
Writs fo. 307. Bifliop, who holdeth and detaineth an Excommunicate Perfon in
b- Prifbn, notwithftanding he offers fufficient Caution or Affurance
w\ ^^^d5°F ^^ obferve and obey the Orders and Commandments of Holy
N.B. f. '6$.&* Church from thenceforth. The form and farther effe^ of which
F. N. B. 6§. Writ J vtd, Reg, {xy
Vid Roll.Abr.
f. 234,
(ii.J Ckrko
pertinent to this Sribje^. ^aj
(11.) Clerico infra facros or dines confihuto, non digendo in Offi"
cium^ is a Writ di redded to the Bayliffs, &:c. that have impofed a
Bailywick or Beadkfliip upon one in Holy Orders, charging him to
Vcleafe him thereof (y). (y) Ib.f.142. a.
C12.) Clertco capo fer Statutum Mercatorum, ^c, is the deli-
very of a Clerk out of Prifon, who is imprifoned upon the Breach
of the Statute Merchant (2:,% r^ !(,_ ^ j .
C13.) Clerico conviBo Comwijfo Goal a in defeBu Ordinarij
deliberando, is a Writ for the delivery of a Clerk to his Ordinary
that was formerly convidt of Felony, by reafon his Ordinary did
not challenge him according to the Priviledges of Clerks (a \ r^) n,. f. 59,4,
(14.) Annua Vetifione is a Writ now grown obfoletc and out of
u(e : For whereas anciently there were certain Abbies and Priories
that in refped: of the Foundation or Creation, were obliged unto
an Annual Penfion due unto the King for fuch his Chaplains unpro-
vided of a fufficient Living, as he fhould nominate and appoint :
This Writ in purfuance thereof was wont to ifTue to fuch Abbot or
Prior, in favour of fuch whofe name was comprifed in the faid
Writ, until, &c. requiring the faid Abbot or Prior, that for his
faid Chaplains better aflurance, he give his Letters Patents for the
fame (b), ,^ Rce n «
(15.) Vicario deliherando occajione cujufdam Kecognitienis &c* j,/^-. & 707*.
is a Writ that lieth for a Spiritual Perfon imprifoned upon forfeiture & F. N. E. F.
of a Recognizance, without the Kings Writ (c). For as there is 231*
one Form of the Writ Statute Mercatorio^ for the imprifoning of y^ ^^^' ^^^^'
him who hath forfeited his Bond called the Statute Merchant^ until ' *^*
the Debt fatisficd, as to Lay-Perfons : So there is another Form of
the faid Writ, as againfl: Ecclefiaftical Perfons (^). ^^n h,^ f ^ g^
(i(5.) Touching the three Writs, 'viz,. De Excommunicato capi-
endo. Excommunicato deliherando* Excommunicato recipendoy vid. .
ftp, in cap. de Excommunicatione.
(17.) The Village of St. Andrews hton^t a Quare Impedit qaare Imp*
againfl the Archbifliop of Tork^ and Countefs of Shrewsbury^ and Darrein Pre-
after brought an Affize of Darrein Prefentment for the fame Church, fcntment.
The Quare Impedit is returned. It was faid by the Court that the
/^Jjize oi Darrein, &c. (hz\\zh2ite^ vid. by Hobert. But if he had
brought another i^are Impedit^ it had been well. And fo it was
refolved in the Earl of Bedfords Cafev and by Button^ that the J?^£^' '^ J"^'
Statute of ^r. 2. cap. 5. proves it, viz. Quod habeant Ajf. &c, vel ^^A Rep. ^^'
Quare Imp. but not both, vid. 8 £. 3. 17.
(18.) Ij2
6^S Of fever al Writs at the Commoii LavPj
(i8.) I"i a Qi*are Impdit the Incumbent pleads, that before the
the^ Piaindff Adion brought he had been in by the ipace of iix months, d^^r. of
muft alledge a the Prcfentment of 5. S. in the Church. This diflcrence was takm*-
Prefentation by Serjeant Henden^ and agreed by the Court ; when the Incum-*
in himfelf, or j^^j^j. pleads the Preientment of a Stranger, there he ought to fliew,
whom he That the Stranger had a Title-) and that he ivas jeifed of the Ad-
claims ■■, andfo 'vowfon. See. or that he ivas feifed of a Manner to ivhichy^c. But
maft the De- where he pleads that he was in for fix mouths of the Prefentment .
fendanc.-- q£ ^j^^ Plaintiff himielf, or by collation by lapfe by the Ordinary,
Sit Jo. Tuft on ,1 L J * 1 -r- 1 t- /- 0^ \
vcri. Sir Ric. ^^^''^ "^ "^^'^ "^^ make any Title. lo £. 4. 1 1. ( f ).
Temple. ( I p.) If a man recovers in a Quare Imped it againli an Incumbent,
Vaugh. Rep. the Incumbent is lo removed by the Judgment,that the recoverer may
^ ^'\^c'^^^ 7 P^^^^"^ ^^ the Church without other removal of the lncumbent,who
Nofs Rep. ' y^^ continues Incumbent de facfo until there be a Prefentation made
(g) M. lajac. by the recoverer C^). And after fuch recovery in a Quare Imfedit.^^
B. R. inter Stranger to the recovery cannot Prefent to the Church, for notwith-
r^^?/r ^'^^ flanding the recovery, the Incumbent continues Incumbent de fa^te
Rcfolvcd per ^^ ^^ ^'* <>trangers to the recovery (h).
Cm: (20.) A Quare Impdit lies of a Donative, and the Writ (hall be
Rol. Abr. Quod fermittat if [urn Trafentare ad Ecclejiam^ &c. and fet forth
ment ^lit'^'^" ^^^ ^P^cial matter in his Declaration CO- And the Grantee of a next
nu. 6. ' avoidance may have a ^are Impdit againft the Patron who granted
Q}) M. 13 ]ac. the fame (k).
B.R. inter (2 1.) If the Husband who hath an Advowfon in right of his
mrham} ^""^ ^^^^^'^^ difturbed in his Prefentation thereto, and dies, the Wife (hall
(»; Co.' Lie. ^^^^ ^ Quare Impdit on that difturbance (/). Alfo a Chapter may
344. have it againft the Dean for their feveral poflellions (m). It lies
Ik) 19 H. 6. alfo of a free Chappel which a man hath by Patent from the King,
ot^^Qm. if f he Sheriff refufe to put him into poffeffion thereof (w). A Prc-
(/;' 3 E. 3. ' Mentation by the B'fliop as Patron, is Sufficient for the King to main-
Qua. imp. $7. tain a J^ Imp. to the Church,vv.hen the Tcmporalties come into the
3 H 5. ^a. Kings hand by reafon of vacancy of the Biflioprick {0).
i^p. 71..^^- (22.) The Writ of Right of Advowfon lieth properly for him,
im) 40 E. 3, "^^^0 claims to have the Advowfon to him and his Heirs in Fee-(Im-
28. b. pie T/)). This Writ lies of an Appropriation (q). He that procures
in) 14 H. 4, this Writ, ought to (hew a PolTeilion in himfelf or Anceftors {r):
(0) 1 8 E.M. -A^^^i'^^O" 3"^ Irtftitution of a Clerk without Indudfion, is not fuf-
(py §0 £.2.25. fi^i^iit to maintain this Writ (s).
■(;q) Term. Law
verb, quare Impedit. O^ 44 £.3.34- 14H.4.14. b. (0 21 E. 4.1. 1H.4. 2. 21 E. 3. 27. b.
(t) 38 E. 3. 9. Cora, mres & Bric{ley. 528.
(23.) When
fertinent to- this Subje^. ^^p
, (23.) When a man Prefcnts his Clerk to the Bifhop within the
,f)X monthsj and alfo another Prefents his Clerk, in that Cafe the
jChurch is LittgtoMs^ and the Bifliop may ilTiie the Writ De jure Pa-
tronattfs^ to enquire to whom the right of Patronage belongs. This
Writ may alfo ilTuc out of Chancery to the Ordinary (u). And the («; 34 H.^.59.
Ordinary is to make Inquilition thereon (-iv). Some queftion is, at ^' P^r MoyU. '
whofe cofts this Writ (hall be fued, whether at the Bifliops, or at (^3 34H.<5-';
the Parties ? It hath been faid, that it (hall be fued at the colb of p\'iff,l ^^'
the Ordinary •, becaufe it is for his own difcharge and for his eafe f^) 5H.7.22.
(x). But it (eems otherwife, for that the Ordinary is not oblig'd to P^r Brian.
award- a Commiilion to enquire De JmeVatronatt^s ex Officio^but But K'i)/^ con-
atthe de(ire of the Parties (>> For when the Church is Litigious "4 h J.T^b*
he may fuffer the Lapfc to ijlicur without enquiry. ^^H.6.^i. Curia per Danby,[
3 5 H.S.iS.h. and if he (hould be obliged to grant it ex Offcio •, then «nd two Dd--
helhould never have a Lapfe. 35 H. 6. i^.JVnd by 34^.^.38, It J^"' ^^^ ^^
Oiall be at ihe col^s of the Parties, for that the Ordinary is Judge in pjifi/' ^^'
that cafe (2:-). If there be but one only that doth Prefentto the (y^ 8*E.424»
Ordinary i yet he may award a Jure Tatronatm {a). But if two ^' p(^ curiam,
Prefent, then there may be two Jure Tatronatm (h) r And if the ^ ^'J'u^'^'a
Ordinary admit his Clerk, for whom the right is found upon the Ja'^H/^ jo.pcr
Writ, it will excufe the Ordinary, and he (hall be no diflurber, al- Aiarl^.
though the right in a ^. ImpeMt be afterwards found for the ("<) ^ol« A.br.
other Party (cj. But if on the faid Writ the right be found for one """' Pj".^^*^"^"
Patron, and afterwards the Ordinary admits the Clerk of another pag!^284*.
Patron, that is at his peril, for he may (ifhepleafej admit him, ^-2/21 H. ^.4-4.
notwithfi:anding the Commiilion, and the finding for the other 34 H. 6. 40.
(d). For it fecms it is but for the Ordinaries better information. i^\ ^' Jl' 't'^^'
But when the right on the faid Writ is found for one Patron, and b. per Prifotl'
the Ordinary admits the Clerk of the other Patron : if it be after- 54 H. 6. g8. '
wards found in a Q^are Impedit, that the right belongs to that Pa- C'^) 34^.6.11.
tron from whom it was found in the Jure Tatromttus^ he will be a ^\ ., . ,
diiiurber (e). It is fome que(\ion, where the Ordinary may fuffer ^rifot^ ' ^"
the lapfe to incur, after it is found on the faid Writ for one of the (j) '21 H. 6*
Patjons ? It is fuppofed that he may not : For 3 5 H,6.ip. per Trifot, 44i 45*
he (hall not have any lapfe after it is found for one of them, for he ^oll.ubi.fupra.
is to admit his Clerk ( f). Yet after it is found for one of them, ircuriim^^*
the Ordinary is not obliged to admit his Clerk without a new re- (h) F. N. B.
queR made to him by the Clerk, but no need of the Patrons making Spoliation.^
any new requeft or prefentation (g). (?*f?^* ^" ^^^%
(24.) The Writ of Spoliation lies properly by out Incumbent theBifhopof'
againli another Incmnhent^ where the right of the Patron comes not Oxford^ in
into debate {h)> And therefore if a Parion be Created Bilhop, and Vaugh. Rep,
hath a difpenfation to hold his Redory, and after the Patron Pre-
fents another Incumbent, who is inltitated and iiiduitedj the BiChop
fliali
^5^ ^f /^^^''^^ Writs at the Common Law^
ftiall have againft that Incumbent a Spoliation i which proves tbe
Biftiop to continue Incumbent after hisConfecration, and to hold his^
Redtoiy by his former Prefentation i and in ancient times 'it wa^
held, that where the Pope doth Licence one, who is created a Bi(hop,
to retain his former Benefice, and the Patron Prefents another, if in
that cafe the Elder Incumbent fues a Spoliation in the Spiritual Court,
(t) 33H.^.f.i9. jf ^g]| ijgg^ fQj^ jjQfi^ claim by the fame Patron (/)• So that if one
v\.l^'' ^"^^"'^ happen (during the Incumbents Prefentation) to be prefented by
the fame Patron,or do come into the {ame Church by courfe of Law,
fo that the Patronage comes not into debate, a Spoliation lies.
("i 5.) If any man (hall hold or keep the Poffeilions of a Church
by force, fo that the Bifhop or the Parfon cannot do their Office
there, it fhall be removed by the Kings Writ, called Vi Laica remo-
.33.5, ^gyj^^^ as aforefaid : which Writ lies efpecially where the debate is
between t\vo Parfons touching the fame Church, or Prebendaries
on the Title, and where the one keeps the other out by Force and
Arms i but by this the Force oiily (hall be removed, and not the
Incumbent, who is in Pofleilion of the Church, whether he be in
• ^' ^* 54* Pofleflion by right or wrong. And this Writ fhall be granted on
the bare Surmife of the Incumbent , or party grieved, without
any Certificate made by the Bifhopinto Chancery, as upon fuch
Certificate, and alfo by reafon thereof j and there are two feveral
forms of tlie Writ in thcfe two Cafes > which Writ is returnable or
not, at the pleafure of the Party who fues out the fame j and may be
* Finch. Nomo- returned into the Court of Common Pleas as well as into the Kings
mhDia,p..38. Bench.
S. was deprived by the High CommiflTioners for not conform-
ing to the Canons of the Church j it was general, ^«i<? Refra^a-
rius \ but no particular Canon mentioned : The King by reafon of
the faid Deprivation, prefented B* who was indud"ed ; but S»
would not yield up the PofTcilion of the Parfonage-houfe : where-
upon the Writ of 1/i laica ifTued out of Chancery •, the Sheriff came
to the houfe, but could not apprehend the Parties \ B. finding the
houfe empty, entred peaceably i S. made an Affidavit in B* R. that
he was oufted by the Sheriff by force, and B. put in poiTeflion i the
Court of B. R. thereupon granted a Writ of Refiitution, he having
an Appeal depending of the Deprivation : In this Cafe thcfe Points
were refolved > (I.) That the Writ De vi Laica removenda is not
returnable unlefs the Sheriff find the Force. (2.) That the Kings
Bench cannot award reftitution upon an Affidavit, but there ought
to be a return of the Writ of Fi Laica C^c. in the Chancery, and
npon Affidavit mzde there, that theSheriff by vertue of the Writ
iliath removed one and put another in poflefIion,Rel^itution is award-
able. C.3*; Ftefolved , That upon the Deprivation by the High
Com-
pertinent to this SubjeH. ^5 j
CommilTioners no Appeal licth, becaufe the Commiffion is ground-
ed upon the Prerogative of the King, in the Ecclefiaftical Govern-
ment i and therefore the Commiffioners being immediate from the
K^igand poflefling hisPerfon^no AppeaUieth. C4.) RefoIved,That nhd and
the Canons of the Church, made by the Convocation and the King, Smiths Cafe.
without Parliament, fhall bind in all matters Ecclefiaftical, as well as ^*"'''' *^^P*
an Mk of Parliament : In the Principal Cafe it was adjudged, that
. until the Deprivation was repealed, it ftood good j and io B, had
good Title to the Church.
A Leafe was made of a Redory, a Parfon was Prefented to it, ^oitrts and
and upon a fuppoiition, that he was held out by forcc,had a Vi Lai- ^"'^"^^(^""'f
ca removendayU^on-which the Sheriff returned JSfon in'vem vim Lai- Moer\ Rep.
cam, net fotentiam armatam^ notwithftanding which return upon
Affida-vity that he was kept out with Force, a Writ of Rcftitution
was awarded out of the Kings Bench. Yet in Zakars Cafe, Coke
Chief Juftice faid, we are to judge upon a Pvecord^ and not upon Wich. 13 Jac.
Affidavits y in which Cafe he being deprived for Simony.Richardfon ^fc^^f^j^^^
Serjeant moved the Court to have him reftored again, becaufe za^ar.
Cas he urged it) he was unlawfully removed. The Reafon being, Buiftr. par. |
that in a Ft Laica removenda, whereby he was removed (which
Writ by F, N. B. and the Regifter, comes to remove omnem vim
Laicam) he (hews that the Sheriff did difpoffefs him, and put ano-
ther in, the which he ought not to do, and as Coke Chief Juftice
then faid, that in fo doing jie had done againft the Law, if he re-
moves one and puts another in i and Richardfon Serjeant there
cited Kohinfons Cale, Hill. 3 8 Eliz^, where upon an Affidavit made
that the Sheriff in a Vt Late a removenda^ had removed one,and put
another in, there this was debated, vvheth<;r upon this ftiewed to
the Court the hrft man removed ftiould be reftored again or not i
and there rclbived by the whole Court, the fecond man to be dif-
placed again, and the firft to be reftored> and Coke faid, if a
Juftice of Peace remove a Force , he cannot put another into
Poffeffion.
(26^) There is a Writ in the Regifter j^^j^C/erici ncn Eligantur
in Officimn Ballivi^ &c. For all Ecclelialtical Perfous in Office are
allowed certain Priviledges by the Common Law in refpeft of their ^'^ • i7s. b.
Function, they are exempt from all Fcrronal charges, which might
any way hinder them in their Calling, as to be chofen to the Office
of a Bayliff, Beadle, Reeve, or the like, in refped: of their Lands s to
which end the faid Writ is provided, which doth recite that by the
Common Law they ought not to be chofen to fuch Offices aforefaid i
and commands, that in cafe any Diftrefs be taken or Amercement
levied on any of them on that account, that it fhall be reRored. So
the Stat, of Markb. cap 10. That Pcrfons of Holy Chmch, and
B b b b b Perfons
6^2 Of fever al Writs at the Common Larp^&cc.
Finch.ubi fup. perfons Religious, (hall not be compelled to come to the Sheriffs
p. 1 55. Stamf. Tcum or Leet i and (o alfo it is by the Common Law. In Favour
133* alio of Holy Church the Law did anciently allow them Two cthlr
Priviledgcs, viz,. Clergy and Abjuration. •
In the Ninth year of the Reign of King Jamesi a qucftion was
moved, Whether after the Convidion of an Heretick before the
Ordinary, the Writ de Haretico cowhurendo did at that day lie or
not ■-, as to the refolution of which Queftion the Judges were then
divided in Opinion, as appears in the Fortieth Chapter precedent,
5J. 7. what was then controverted, is now decided by an hd: of
?^P40' fca.7. Parliament made in the 2pth year of his Majefties Reign, whereby
pa& 5^4. ^^ ^^ ena6l:ed, that the Writ commonly called Breve de H^reticQ
comhurendo, with all Procefs and proceedings thereupon, iu order to
the executing fuch Writ, or following or depending thereupon,
and all puniftiment by death, (hall be from thenceforth utterly taken
away and aboliihed.
'A^<^wp74) Ba<nA&t [ 7mv7t)%'] ^^ct 0i^,
THE
THE
I N D EX
Referring to
PAGE and PAR AG RAPH.
A.
AB B Y-Lands, how many ways privilciiged or difcharged of
Tithes, p«383. How the Abby 0/ Battel came to be dijpenfed
from Vifitatioii, p. 108. 5J.8. When and by whomthe Abhy
0/ Weftminfter was founded^ p. 328. §. 5.
hbhot^whence that word is derived^and what it /igntfies^p. ^16,^2 j,
§. I. How many Abbots anciently in England, p.327. ^. i. and
p. 328. §. 5. They were refuted as Peers,p.327. ^.2. Some were
Elcdive, others Prcfentative, p. 328. §. 5. IVhen and by whom
made Eledlive, p. 331. §.7. Three Abbots condemn d at once for
denying the Kings Supremacy^ p. 10. §. 14.
Abeyance, what^ p. 183. §. p. and i^p» §.8. and 284. §. 3.
Ah'][itztion^ the form thereof anciently^ p. 141, 142. §. 8.
Ablence of the Husband from theWife^ what requijite to caufe a
Divorce^ p. 4^4. §.2.
Abftinence or Fafting-days, the Original thereof in England, p. 130,
§• 44.
Acceptance 0/ R^»f, by a Bijhop^ whether it fiall bind him, p. 38,
^.ult. ByaParfon^ whether it confirms the Leafe made by his
Predecepr, p. 1 85?. §. 8.
Acceffories determinable in that Court which hath cognizance of the
Principal, p. 114. §. 11. and p. 123. §.25.
Accompt, in what cafe an Executor jhall not be compelled thereunto^
p. I \6. §. 12.
Acorns, whether Tithable^ P- 3^3'
Adion upon the Cafe, in what cafe it may he at Common Law for
ftiing in the Ecclelial\ical Court, p. 444.
Adminiftrator, how he may make his own Goods liable to his In'
teftates De^?j, p.8d. §. ir.
AdmilTion, what.^ and under what qualifications it may be, p. 272.
§. 6. the form thereof^ p. 272. §. 7.
B b b b b 2 Admittendo
INDEX.
Admittendo Clerico, in 7vhat Cafes that Writ is ijfuahle^ pag. 6^6-.
fed. 8.
Adultery, «;i&cre cogniz^ahle, and hoiv fumfhed, p. ^6p, to /\y6,
Advocatio Medietatis Ecclefiac, & Medietas Advocationis Ecclefiae,?i6tf
difference in Law between f^ew,pag. 206. kds, 2.
Advocatione deciraarum, iphat that Writ imports j pag.547, Ce&.y,
Advow or hvoWjwho f roper Ij fuch, p.20(5. §.2. and p.2i^.^.ii{.
Advowfon, "ivhat^ and -whence derived ^^.20%. §.i. Twofold^ p.2c5.
The Original thereof^ p. 207. §.3. A Tew f oral not Spiritual In-
heritancCi p. lOp. §. ^, 7. How Advowfon in Grofs dtffer-j from
Appendant, p.2 lo,§.8r Whether it may be extended.^ p. 182. §.7,
By "what words in a Grant it may pa/s^or wo?,p.2i i.^. 10. p.2 14,
§. 15, i^. Whether it may be Aflets, p. 214. §. 15. Whether the
Advowfon of a Vicarage endowed, belongs to the Parfon^ or the
Parfons Patron^ip.2 16.§.2 1 . Whether the Advowfon of a Vicarage
doth pafs by the Grant of the Vicarage, pag.Zip. fedt.24. Three
Original Writs of Advowfons, pag.2i<5. fed. 20.
Aftermath, and Aftergrafs, "whether Tithable, p. 384.
Age, at what Age a Minor Executor may admmifler, p.2 ip.§,i5.
Agiftment, what, and whether Tithable^ p. 384, 385.
Agreement between Parfon and Parifliioner touching Tithes, pag.
373. fed. 47. and p.385,38d. Good for years without Deed,not
fofor Life, pag. 37^. fed. dp. and p. 385.
Alchoran, how feverely it doth punijli Adultery, pag.471. fed. 6.
Aldermanus, anciently what, pag. dp. fed. i.
Aliens, whether prefentable to a. Church in England, pag. 2^4. fed.
26. <z« J pag. 272. fed. (5.
Alimony,7/^/j^;,pag.5o8. {t6c. i ^. Where cogmz.ahle^p2ig. 510. fed. 1 6,
1 8, J p. In what cafes the Law allows Alimony or not, p. 5 op,
510. §, 14, I 5. Whether due to her that Elopes, p.508. §. 13.
Alms, or things appointed for that end, ivhether Tithable, p. 3 86.
Altarage, what^ P- 33p. §•!. Whether Ttthe-WooXor Tithe-Vfood
jhallpafs by the word Altaragium, p.34r. §.3. p.342. §. 4, 5.
St. Andrews in Scotland jU'^ew, and by whom the Bijhov thereof was
made Metropolitan of all Scotland, pag. 18. kGt. p.
Animalia Utilia & Inutilia, the difference between them in reference
to Tithes, pag. 3<5o. (td[. 17. and p. 38<5.
Annates, what, and to whom payable, pag, 335. {t&. i. The Or i-
ginal thereof, pag.3 37. fed. 2, 3. Fi^, Firlt-Fiuits.
Annua ?€Vi'L\<:)\-\t,w hat that Writ imports, pdi^.6^^. fed.14.
Anftluie Archbijljop of C^nteihmy, the fr/f that made Appeals to
R.ome,pag.p7, fed. i. and pag. 118, {q€(. 13. Thefirfl Arch-
bifhop of Canterbury that was Legatus Natus, pag.pS. fed. i.
Apparitor, /^if/ic/w againfi fucb for falfe Informing:t\y3i^. 88. fed.14.
Vid^ Summoaer, Appeal^,,
INDEX
^Appeals /o Kome^iirohilfiteeijp.p.^.i^. p.ii8.§. i^. They are made
to the King in Chancery, p. ibid. Appeal out of Ireland to the
Delegates in England, in what cafe^ P''407. Vid. Delegates.
Appellatione ren:iota, the ejf'eU of that claufe in Lrf3/;,p.i 17.^.15.
Apples, what Tithes they fay^ whether [mall to the Vicar ^ or great
to the Tarfon, pag.361. fed. 2 1, pag.^Sd. In what cafe they may
not be Tithable, pag. 571. fed, 44.
Appropriation, what, p.223. ^.3. The Original thereof. \>. 22 1.^222 .
§.i. Whether it may be fnade without the Kings Licenfe^ibld. and
p.ipS. ^.3. fVhcfe AjJ'ents are rec^uifite t her e unto^^p. 22 2. $.1.. How
they are now chang'd m their uje and endj from what they were
originally^p.22:^. 5^.2 . Whether they might formerly be granted to
Nunneries, ibid, and pag. 225. fedt. 5. They may not now (as to
their Original) be called into quefiion^p^i^. 226. fedl.d. How a
Church Impropriate may become difappropriate^p3ig,2 2p. CcO:. 12.
Arabians, their firange conceit of Adultery, pag, 471, fed". 6, Ihe
tunijliment thereof with them Capital^ ibid.
Atdibk Land, left Fallow nnd until fd every other year^ whether
Tithable that year ^ p. 3P4.
Archbifhop,u'^f »ce yo calkd '■> a defcription of that Dig-«/V/,p.l2.§.i..
what difference between Archbifhop and Metropolitan, p.i 5. §,3.
Three Archbijl)ops in England atid Wales anciently, p. ibid. §. 4.
How that in Wales came to be loH,and when^p.i-j* ^.6.> None in
Ireland until theyear^ 1 1 52. p.20, §. 13. In v^hat cafes an Arch-
bifwp may call Caufes to his own cogniz,ance Nolente Ordinario,
p. I P, §. I o. Whether he may cite a man out of his own proper
Diocefs, p.ioo;c^f. §.3. The great Antiquity, Precedency, Trivi-
ledges. Style and Precincls of the Archbifhop (3/*Canterbury, p. 1 3.
%.l. He is the firfi Veer in England, next to the Blood- Royal,\b\d.
Anciently he had Primacy as well ever all Ireland as England,
p.20 §.13. He was anciently fiyled Patriarcha, 6c orbis Britannici
Pontifex, ibid. He had fome ffecial marks of Royalty, p.21. §.13,
Several Friviledges peculiar to him, ibid. Whether Ije had con-
current Jurifdi^ion in Inferior Dioceffes within his Province,
p. 1 8,§ p. That See kept Four years by King William Rufus with-
out an Archbijliep, p. 24. §. 3, In what re^etls the Archbijhop of
Canterbury hath fome power over the Archbijlwp of Yoik, p,i8.
§.5?. The Original of the Adetropolttan See 0/ York, p. 1 4.§ 2. The
Antiquity, Precedency, Style, and Precin£is of the Archbijljcp of
York, ibid. Anciently an Archbijljop of London, pag. 1 7. (c^.y,
AxchtsCourt, the higheft Confiftory, pag. 83. fed:. 6. Why fo called^
pag. J 00, fedl. 3 . The great Antiquity, Jurifdiclion, and decent
Order of that Courts pag. 103, 104. ki\. 5.
Archdeacon;
INDEX.
Archdeacon, whence fo called^ and what he isy p. do. §. i. How he if
to he qitaltfad] p.d4. §.8. His Office and JurifdiBion^ p.^i. §.i, ^
T^he fever al kinds of Archdeacons^ and how many in England, ^
p.dl. § 2, How they are difiingmfljed hy the Cancn Law, p.6^i
§. lo. Whence their Power is derived, p. 62. §. 3. The Canon
touching Archdeacons in reference to their Vijitat ions ^ p. 64, §. p.
Whether they have Tower ofVifitation Jure communi, p. 63, 67.
§.7. What remedy in cafe an Archdeacon doth refufe to [wear the
Churchwardens eleB, p. 1^4. §. p. pfhether an Archdeaconry be
underftood as a Benefice with Cure, p.d2. §.5. and p.200. §. 13,
Arch-FIamins, what and how many anciently in England, and
where, p. i<5. §, 4, They were fmceeded by as many Archbijhop-
Ticks, ibid.
Arch-Presbyter, what, p. $6. §. 7,
Arms, or Coat-Armour on Monuments or Church-windows not to he
defaced or demolijhed, pag. 138, 135?. fed:. 5.
Arreds, whether they be executed on Chriftmas-Day, pag. 115. (tdc»
12. Whether executable on Clergy-men in time of Divine Service,
pag. 141. fed. 8.
Articles 3P of Religion,what kindof fubfcriftion thereunto required^
pag.i63.re(3:.8, Ankhs of Religion under King Ed.<5. pag.S.fedJ:.
14. The like under ^een Elii. ibid. Articles of Encjuiry on a
Jure Patronatus, pag. 180. (tdc. 2. Articles before the High Com-
mijjloners at York againfi the Vicar of Hallifax,pag.i8^.red.p.
Articuli Cleri, and Circumfpede agatis, what, p. 63 p.
AiTault on a Clerk, whether cognix^able before the Ordinary, p. 115.
fed. 12. AiTaults in the Church or Church-yard are not to be re'
tallied, p^^, 1 3 p. fed. 5.
Alfent to the Articles of Religion, what good or not, within the
intent of the Statute, pag. \6^. fed. 8. Aflent of the Ordinary
requifite to the Foundation of a Church, pag. 207. (t&. 5. AfTent
of the Fatron re/^uijite to theUnion and Appropriation of Churches,
pag. I op. k&. p.
Artife de utrum, what^ and why fo called, pag. (543. k^O:, 2.
Attorney at Law, he may not be eUBed Churchwarden, pag. iv'4.
Audience, or Court o^xAudience, what it was-, where kept, and what
matters it took Cogniz,ance of, pag. 1 06. (t^. 7.
Aumone or Frank Almoigne, a defcription thereof, its ufe and end, •
pag. 338. fed. 4.
Avoidance, what, p. 283, §. i. Twofold, ibid. What difference be-
tween Avoidance and Next Avoidance, p. 248. §. 2. How many
ways it may ^f,p.ibid, §.3. /« what Court cogntzable,p. 1 2 i.§.2i.
-The difference between the Common and C^non Law in reference
to
INDEX.
to Avoidances, p. 28d. §. 8. The grant of the Next Avoidance,
during an Avoidance, ts void^ p. 2ip. §. 24. Whether the grant
of a Next Avoidance ^W -without Deed, ?• 255. p. 4,
Avow or Ad vow, "what^ p. 181.^5.
hu^in^whether the fir fi that f reached the Gojpel in England, p. 13.
. ^. li Whether the firfi Archhtjho^ of C^Xiteibmy, p. ibid. Where
buried^ p. 16. 5^. 4.
Award or Arbttrentent f leaded in Bar of Tithes m the Ecclejiafiical
CouYt^andrefufed^m ground for a Trohibition,^.i2Z)i2^. ^.25.
B.
BAil, whether it may be taken for one apprehended by a Capias,
De Excom. Capicnd. p. 65 1 . 5^. 2 5.
Banns, v^hat^ whence deri'vedj how fublijhedy by whom diff^enfed
with) and the legal Re^uiftes in order tofuoh Di^enfationsj p.
Bark of Trees, what not TithabU, p. 3 87.
Barren Landy the Law touching the Tithes thereof^ p. ibid. ^c»
Baftard, whence that word, and who properly fuch, p. 478. ^, i,
and p. 486. p.\6, 1 8. How differenced fom Mulicr at Common
Law, p^ 478. 5J, 2 . How difiinguijhed at the Civil Law, p. 480.
p. 5. How that Law comfutes the time of a Womans going with
Child, p. 482. 5^.7. How computed at the Common £^2^^,^.482.
f. 9. andip. 48^4. jJ. 12.
Baftardy, how dijiinguijljed at Common Law, p. 478,47^. 5^. 3. It
is Triable by the Certificate of the Bijhopy p. 122. ^. 21. How
profecuted in Courts of Juftice, p. 480. §. 6. and p. 484, 485.
§.13. How punijhedi p. 43 8. §.lo. and P485. ^.14. Difference
between the Common^ Civil, and Ecclefiajlical Law in reference
ro Baftardy, p. 487. §« ip.
Baud, whether^ and where Aclionahk for calling onefo, p. 5ip5^20,
p. II. and p. 520. §♦ 13. and p. 523. §. 20.
Beauford Henry, Great Uncle to King H. 6. and Bijhop of Winche-
fter, made Cardinal, how he thereby feU into a Prsemunire, p.i 10.
5J. 8.
Bccket ArchbifJiop e/" Canterbury, his contention with King Henry IL
p. 100. ^.2,
Beech-7r^^, how,andinwhatcafeTithableornot^p>^Sp,
BeeSj in what kind they pay Tithes, p. ibid.
Benefice,
INDEX.
hmeficcEccle/tafiical, the true definition therebf^'gz^, 200. fedj-. 12.
The reafons of that definition^ p. ibid. Whether Ecclefiaftical .
Dignities fall under the notion ^Benefices, pag, 200. fed. 13. Of
Tvhat a Benefice conjiftsj pag. 200, 201. fedt. 14. No Contra^ *
tol'e made for it.^ nor ts it 'vendible^ pag.20i. {tOi. I'^.Six Signs
or Requifltes of aji Ec'clefiafi-ical'BentiiC€, p. ibid. The common
difiinBion thereof pag. 201. led. 16.
Beneficio primoEcclcfiaftico habendo, what that Writ imports., p^^,
<547. fed. 9,
Birch- 7re^/, whether Tithahle after Twenty years growth^ P'3P0-
Bi(hop, the derivation of that word^ and why fo called^ p. 22. §. i.
Anciently he was the unfuerfal incumbent of his Diocefs^ P* '3'
§. I. ffhj called Ordinary, p. ibid. 5^.2. What things requifite to his
Creation^.i 5 . §.4. The form and manner of making Bijhopsiibid.
and p.26, and p.^o. §.8. His Inter eft and Authority in his federal
Capacities,p.2p,^oS'P' Whether he may grant Letters of Inftitu-
tion out of his own proper Diocefs, and under any Seal other than
his own Seal of office J p. 3 1. §• 12. Several things incident to a
Bijljop qua talis, p. ibid. and^*i^. In what refpeBs his Jur.if-
diSlioh ts not meerly locals p. 52,3 3. 5J. 15, The Dignity and Tre-
cedency 0/ Bifliops^ertf m England, p.3 5. §-ip. Their Trecedency
amongft themfelves^ p.13. §.i. Their capacity of Temporal yurij-
.diSlion refioredjP'36»%'20. They were anciently inveftedfts An-
■ iiuUunfi & Baculum,p.24.§.3. and p. 2 p. §.8. Bijhops ^London
Deans of the EpifcopalCoUedgeyp.^^.^. 22. ,{ ... >>
Bifliopricks in England, all Founded by the Kings of England, p.'2 4.
5J.3. How many in England, p.12, 1 3. §. i. They were anciently
; Donative yp.2^, §.3. and p. 2p. §. 8. Their Patronage is in the
■ King^ ib;d. How the Bijhopricks o/" Wales became annexed to the
Crown <>/i"England, pag. 2 8. (t^.6. They were ereBed into Baro-
nies by King William the Conquerer, pag. 3 5. fed.ip.
Blafphemy, what, whence fo called ^ Threefold i the fever e Tunifh-
ments infliBed thereon, pag. 55^, $60. fed.-l, 2, 3.
Bona Notabilia, what, pag. 104. fed. 6,
Bucks, whether Tithable^ p. '^90.
Broom, in what, cafe Tithahle or not, p. ibid.
Buck^«^ Dot,not Tithable, yet payable for Tithe, pzg, 3^i.fed.20.
^w^pag. 380. fed. 75.
Bull,or r/6e Topes hu\], whence fo called pag. 341. {t&. 3.
Burial in the Body of the Church, who hath right to Licenfe it, pag.
1 3P.ftd.5. Whether ^ny thing payable to the Farjon for Burial of
him out of his Parijh, that died in his Parijli, pag. 188. fed. 4.
Burglary to enter into a Church by Night with an intent to Heal,
pag. 141. fed. 8.
INDEX.
c.
CArJegion in ^dXts^anciently the MetrofoUs 0/ Britannia Secuu-
da, p. 1(5. ^.4.
Calves, how Tithed^ and "when^ and what kind of Tit ha they yield
p.390. ^ *
Cannoivr Sir John de Camois/^^ remarkahk Cafe of his demiCmi
his Wifd p. 47 4. 5^.11. ^ ^
Cmoxi-Law^when and how firfi introduced into England, p.l2p,^<?.
^.afd^.Where and hy whom it wasfirfireadin thts Kingdom.p.i^zl
5Jabid. whether tt he any fart of the Law ^/England, p. 58 5,585.
^.3. p.131.5^.44. vai.;!^.^
Canons anciently made hy the Kings of this Realm without the Pope,
^6.^Xthejr were ever called the Kmgs Canons ^not the Bf/hops.ibidl
Ihey cannot he made^mr oblige the SubjeEi' without the Royal ajjent^
p.7. 5J.1 1, and p.9p. ^.2, they may not he repugnant to the Kings
Prerogative^ nor to the Laws or Cuftoms of the Realm^ p. ibid
p.p. ^.14. p.i(53 5J.5. p.ip2. 5J.15. P.58P. 5J.6. mat Canons m
force, I Ed.^. p.585. 5^.2. They are the Ecclefiafiical Laws of the
Land, p.ii2. 5^.p. ', ^0. n
Czxitexhuxy, anciently the Royal City of the Kings c/Kent, p. 13 5^.1.
t. fVhenfrB declared to be the Metropolitan Church of England,
Scotland, and Ireland, p.2 o. 5J. 1 3 .
Cathedrals, whence fo called, p.347.5^.1. ■- >
CathedTaticum,7/;i&/if,^Wj&02/; tt differsfrom Procurations, p.72.^.p.
The Original thereof, ibid.
vCattcl,«'» what cafes Ttthable or not^andthe Herbage thereof, p.3po
S9}'?'3^^' ^•^^'V'3^7'^'3')' Whether youngCattel arehthable,
ibid, p.370,371. 5^.43. Whether the Herbage of Barren Cattel be
Tithable, p.373. 5^.4^.
Caveat entred againfi an Injlitutionto a Benefice, whether it mahes
voidfuch Infiitutionmade after theentringofthe Caveat, p.2 7 5.
. i. 3 4. p.2 80. 5^. 1 8. Whether a Caveat entred in the life time of an
. Incumbent be void, ibid.
Cautione admittenda, what that Writ imports, and the effe^ thereof
in Law, p.S^j, ^,10.
Certificate oft he Bijhop, requifite in a Plea of Bafiardy, p.484. jj, 15,
In what cafe Tr aver fable, p. 8 8. 5^.12.
Ceflion, 7i;^<?f, p.28<5. 5>.p. Where cogniz,able, P.122.5J.21.
Chalk, whether Ttthable, p.JPi.
Chancel,^^ whom to be repaired,p,i^^.^.lo.p.i'j').^,^.In whom the
Freehold thereof is J p.i '^0,^,2.
Ccccc Chan-
INDEX.
Chancellor of a Diocefs^ a definition of bis Office^ p.Si. jj.i. What
TKatters cogniz^able hy ^/w,p.85. ^.lO. The original and ufeoftBat
Oj^ce,p.8i,82. 5^.2. What the Cancns enjoyn concerning fuch^ ibid^
5J.3. Why called the Bijhops Vicar General^ p.8i. §.i. Whether <l
Dkfine not experienced in the Civil and Canon Laws may be a
Chancellor, p.8 2 ,83.5^.4.
Chaplains, whether the King^ Qt^^cn^ Trince, and Children of the
Blood Roy al-i may retain as many as they fleafe^Tp.2p^. ^. 3. How
many the Archhijhop of Canterbury may retain, ibid, and p.21,
^»i'^.andp.^2. §.13. How many retainable hy a BiJ}}opi[bid.How
many hy a Duke^ Marquefs, Earl, and other Perfons of Honour^
p.2p4. 5J.3.
Chappel, whence that word, p.i45,i4d. 5J.15, How many kinds
thereof, ibid. What a Chappel ofEafiy and what a Free Chappel
&f 5 andhy whom viftahle, ^. ibid.T^'ff Imperial Law touching the
building of Chappels, p.i($4. §.17.
Chapter,M//&tff,p.5<^.i^.8,d'"t;.T^e difference between Capitulum and
Conventus, p. 58. 5^ .p.
Charles Maartell, the firfi that violated the Church in point of Tithes,
P-354. §7-
Charter of William the Conqueror touching ConfifiorieSj p.84.
Of King John touching the 'Ek^^ion of Bijhops, Tp.l%^, §.iO. Of
iC/w^ H.8. /-^^c^/w^ Pentecoftals, p.74. ' {
Chauntcr <?WChauntry,iy^<if,p.35>2,e^r.5^.<5/et'rf4i««^iifew»c«r in
Law touching Chauntries, p.3 3 1. 5J. 8. ' /il I uj» , Ci.vj r^3
Cheefe, in what cafe to he Tithed or not, p.35?i.
Chetry-Trees, where adjudged 'timber andTith-free, p.3P^2.
Chicken, how Tithahle or not, ibid.
Childj how reputed legitimate or not, as to the time of its Birth in tOffP-
put at ion from the time of its conception, p.484. ^.12. , • • v ■:
Chorepifcopi, what, p.30. 5^. 11. - c';^':.q .bici
Chriftmas-day, whether Arrets may be made thereon, pAi^, fd2,
Chuich.^none Juch in Law until Confecratton, p.142. ^.p. Anciently
tf Sandtuary, p.141. §.8. T'/^ree/o/^, p.13^. jj.i. ChmchrLands
prohibited hy the Imperial Law from being alienated, p.i 3<^. §.2.
In 7vhom the Freehold of the Church and Church-yard }s, p. 13 7*
5J.3.
Churchwardens, by whom Eligible, and wherein their office confifts,
p.i6o, c^-c. 5^.1. p.162. 5>.4,5. p.i68. 5^.21. rtW p.i<5<5. §.14.
Whether they are a Corporation in Law, p. 1 4 2,1 (53. ^.5. and
p. 1 64, §.i I. and whether as fuch they may take Lands totheufeof
the Church, p.i6'j.^.iy. andp.16%, ^.22.What power they have
touching Seats in the Church, p. 1 40, 1 4 1 . 5J. 7. What Actions may
Uefororagamjtthem, p. i(5i,^,2. p.i^3.5^.758.p.i<57.5J.i8.p.i68.
^.20,
INDEX.
^.20. p.i8(5,i87. ^,^. Before vhomthey are totftake their Accounty
y ip.i6i.(}.T.p.i66.<^.i6.andp.i6y.^.ip.Whetherthe Ne-wChmch'
wardens maj' have ABion for Treffos done in their Tredecejfors
time^ p. 1^2. 5^.5.
CiftercianSj difcharged of Tithes, p.^oi. Their Triviledges inreffeif
o/Synodals, p.72. ^,^,
Citation, whether it may ijfue originally out of the Archhijhops Con'
ftfory^ to any not inhabiting within his Diocefi or Peculiar, with'
out Licenfe firjt obtain d from the Diocefan^ p.2 g.^. 1 2 . p. I o i ,^.^ .
p.105. i^.<5.
City, what properly, p. 15. §.3.
Clay, whether Tithable, p.3P2.
Cltigy, whence focalled^p.6 1,^,1. Margent. What their Triviledges ,
p.iP3, d^-c. §.i8.
Clerico Capto per Statutum Mercatorum, what that Writ imports^
p.6^'/. ^.12.
Clerico convido comnfiiffo Goalae in dcfedu Ordinarii delibcrando,
what that Writ figntfies, ibid. 5^.13.
Clerico infra Sacros Ordines conltituto, non eligendo in Officiurpi
what the ufe and end of that Writ, ibid. §.ii. and p. ^5^'
Jj. 26,
Clothes Fulled in a FuUing-MtU, whether Tithable, p.3p2.
Coals, whether Tithable, ibid. .
Goat- Armour in a Churchywhether ABion lies againfifuch as full it
down,and for whom,Tp.iS9' ^'"S' P.150.5J.22. p.i 54.5^.3 5. p.iS^^
5^.38. p.i 57. M2.
Collation, M'z&^r, p.252.§.i. How it differs from PteCentztion and
Inftitution, ibid. It is only in Right of the Patron, p. 2 54. 5^.5.
Commendam, w/W, p. 230,231. ^.i. Threefold, ibid, and
p.232* ^.3. The Law touching Commendims, p. 232. ^.4.
dec. ,■ : ;i ^\V)-Vi;,:i e.ni-.'V.'\yoi\W> ,i;%-;sJ^A
CommiiTary or Commiffarius Foraneus,7i;^<?f , p.Si.^.i, Wp.83.
5J.5. and p.8p. 5J.1 5. Whether the Grant of a Commiffariesp/<ic^,
or the reverjion thereof by a Bijhop,Jhall bind his Succeffors, p.po,
. pi. J^.17,18. Whether the office of a Commijjary may be granted
to a Lay-perfon^ p. po,p 1.^.18. p.8p. J^.15 \;>tr'?,;v\
Common of Eftovers, whether Tithable, p.3P2.
Compofition-^w reference to Tithes, what the Law therein, 3p2,
3^3. For a Mans life,whet her good without Deed, p.372. ^. 45.
For one year, or more, whether good without Deed, p. 377.
^,61.
Commutation/or Penance jufiifiable by Law, p.8p. 5^.4.
C c c c c 2 Con-
INDEX.
Confirmation ofBifliops^ what^ P44, ^.3,4. The form thereof^ ibid.
Conge cl'Eflire,u'^<?f, p.2p. 5^.7. p.42. ^.i, The original thereof ^ihid,
RefiriBions thereof p. 2 p. 5J.8.
Confecration of Bijhops^ "what^ P-fi-*^- ^'i»The Manner ho'iv, and the
ancient folemnity thereof^ p.2 5,2(5. ^.4. It a-Charad^er indelebilis,
p.4p. 55.5. The Scandal forged hy the Korrizmih^ touching Confe-
cration ofBiflwp m England, p.27. §4. How Churches "were an'
ciently ■confecratedy p47,48. §.34,5.
Confent to the 3P Articles^what not good^ p.i<^3. §.8,
Conliftory, u'j^^f, P.S3. §.5,<5, Whence the VJord derived^ and the
diverfe fignifications thereof p.83,84. ^.6. Confiitutedby William
theConc^uerory P84. ^.7* The Original and Antiquity of Con-
(iftories, p. ibid. §.7. The difference between Contiftorium and
Tribunal, p 85. §.p.
Con(o\id3inon of Churches^'what^ and whence fo called, p. J 6 p. §.i.
How di-fimguiflf) d in Law, p. 172. § .<5, How many ways it may he^
p. 1 70. § 2. The reafons or grounds thereof in Law^ p. 1 70, ^.3,
The Legal Requijities in order thereunto, p.17 1. §4.
Conftitutions c/'Claringdon^i» order to Church-go'vernment , p.iOD.
§. 2.
ConfultatioB, ! ?» what cafes it hath been awarded, p. i id. ^124
p.i<55. §.ii. p.125. §.31. p.141. ^7. p. 143. ^.io.p.144.^.12*
p.iP3.§.i7. p.3P3.5^.27. p. 37^^.5^.56. p.37p.§.7i. p.380. ^.73;
p. 174; 5^. I. p. 3.85,3P44oi4io4i 3414415420422425,
43 1, 43 5, 450, 453, 45P, 463, 464, 506. ^i&grf a Confultation
u awarded after a Prohibition^ then, no new Prohibition to he on
The fame Libel, p.iii5. 5^.12* . :\ '.u •^\i<;c) u u .Diai ,fiO!.Jirnru
'Convocation-C«irf5W:)^?,p.p8.'^,2. p.58jJ:§4. ^owmdbywhn^
. €onirefiedif p.pp. <^.2, p.f)2>6, ^,4. J';6)f Antiquity, Powir^ Pri'vi'
ledges, andJurifdiBion thereof, ibid.
Qonies, taken in ^ Warren, whether Tithable^ V'3P3' "^^J ^^^ ^^
Tfthable of Common right, p.^'j'y.^.')-^.
Corn, /^g Law in reference to theTtthes thereof , p. 3P3> 3P4. C^<^.
A Cafe in Law touching Corn fet out forXithes^ and.Jeft kythe
Parfon on the Ground, p.3tf2.^. 33. > On> .*r f <<;'■:?:- 1*^^.'- :
Gofts of Suit, in what cafe not given upon failure of proof of a Sug'
gefiion within thefx Months,p.^y%.p.66.Cofts obtained by Church-
war dens in a Suit for Reparations, are to the ufe of the Church,
p,i44. jJ.12. Cofis of Suit difcharged by a Pardon relatingbefx/re
the Taxation thereof, p.ii<5. 5J.12.
Govcnt, anciently ^aCor for ation^ p.328. ^.4,
Councils,
INDEX.
C^oimcils, to whom the power of calling and diffol'ving them belongs^
^ p.5. 5J.7. The Jeveral kinds thereof p.584. p.i,5J.S. A Catalogue
ef Councils and Synods^ P'5P2, (^c»
tourts Ecclefiafticals the feveral kinds thereof p.pd. 5J.1. e^<r.
Court of Augmentations, what^ P'3 3 3 • 5^«lo.
Cows yieldtHg Milk^ whether Tithes due for their Tafiure^ P-^9^-
Cxanmex^w hen and how he became Archhijliop 0/ Canterbury, p.iS.
^. 8.
Cuckold, whether ABion lies for calling one Cuckoldly Knave, and
where., p.521. 5^.15. p.520. ^.12.
Curate, whether he may prefcribe againfi the Parfony'p.^'j6, ^.^6,
Curtelagcs, whether Ttthes are due out of fucb., p, ^p6.
Cuftom w reference to Tithes^how it differs from Prefcription , p.3P^,
fVhatCv^oms not triable in the EcclefiaHical Courts, p. 120.
D.
DAmages, who Jhall have them Treble., and in what cafe., p.38 1.
^.'/6, p.380, ^.72.
Darrein Prefentment, what that Writ imports, in what cafe it lies,
wherein it differs from aQadixe lm^edi{..,and whenit abates^^.Sji^^^
5J.i.p^48. J.17.
David, Uncle to King Arthur, fucceeded Dubritius in the Arch
bijhoprick o/Caerlcgion in Wales, p. 17. ^.6.
D£zn.,whatjwhy fo calTd^ p.5 1. 5J.1. The j ever al kinds thereofi'^id^
5^.2. /?w J p. 5 4. 5J.4. What D t SiU and Chdiptev fgnifies., p.51. ^J.r;
whether they are a Body Politick., Spiritual or Temporal^ P-3^^>
5^7' 5^.3 4' Demofthe Arches, whence fo called., p. 103. 5^.4.
Deans Rural,Wj^f, p.33. ^.r. A Layman^once Dean 0/ Durham,
p.357. 5^.34.
"Demxy ., whereof it conftHs, p.5 5. 5^.7' ?F^er-&^r Dcanrics are un^.
derfiood as Bmcficts w it hCmCyf. 200. ^.t^. p.28d. ^.6. Whether.
41 Deaniy way by Difpenfation be. held in Commendam with a
Biflooprick, p.H2. ^.10, '
Decimae Majores, & MinoreSj what and towhont payable.,^.^^^.
Decrees <j»^^Decretals of the Canon Law when firfi pub lijhedker^ ii^:
England, p. 12 p. 5J.44.
Deer, whether Ttthable, p.375. 5^-53. and p.3p8.
Defamation, what, and where cogniz,ahle, p.5 15? ^^*
Degradation,, what., P-3 op* J^«^« ^<*y be done two ways-, ibid,
Dtt
INDEX.
Deprivation, -what-t p.30^. 5^.1. The caufes thereof^ p.2 0^,207. ^.2.
Where cognizable, p.l2 2. 5^.2 i. Whether a Bar to Tithes due h-
fore^ p 3^8. Whether the Church he -void^ pending the Af^ealfronf
a Sentence of Dt^nv2Xio\\ p.314. ^.17. *
Delegatcs-Ce^rf, hew confiituted^ p. 1 17. 5^.1 3 . Whether they mtty
Encommunicate, or grant Letters of Admimfir at ion, ibid.
Dilapidation,7i;i>^f,p.i73. 5^.1,2,3. Tj&e remedies in Law again/} it i
and how many ways it may happen, ibid. Whether it be a fuficient
caufe of Depri'vation, p. 17 5. ^.5,^. and p-3 1 5. ^.ip.
Dioccfs^whence that word derived.p.iol. ^,^.What it proprlyfgni^
fies, p.275: 5J.8.
Discharge ofTithes^ow many ways it may he, p.35'S. In what cafet
it may be,ornot, p.358. 5^.12. p.368. 5J.38.
Difpenfation, the true definition thereof, p.i 12. ^,9. By whom Di(^
ptnQitlons may be granted, and in what cafes, p. 107, ^c. J^.8.
Anciently had from the Court o/'Rome, ibid. It may be without
f^^i^W [Difpenfamus] p.302. 5J.18. They are grant able by the
.^/«g,qua talis, p.5, 5^.7. p.iop, ^.8. The granting thereof is emi'
nently in the Crown, p.5. ^.p. The Archbi(l]op 0/^ Canterbury may
^y Statute grant them,ihid. p.ip.^.i i. The difference between fucb
granted by the Vope formerly, and thofe granted by the King noWy
p.2p3. 5^.2. In what cafe grant able by the Guardian of the Sft'
, ritualties^ p.40. p.^. What remedy in Law in cafe he refufefo to
do, ibid.
Divorce, what, P.4P3. 5^.1. The caufes thereof, ibid. Whether (if for
Adultery) it difolves the Marriage a vinculo, p.45>5. 5^.3. O'c,
Donative Churches, what, p.2C2. 5^.16. The Original thereof, ibid.
By whom 'vijitable,^.^^, ^.18. The Law concerning Domtlvcs^
p.2(52. 5^.1 8. How they ceafe to befuch, and become Frefentatlve,
P.201.5J.16. <?«^p.223. 5J.21. Whether a DomXivc in the Kings
gift may be with cure of Souls, p.2 1 8. 5J.23.
Dotards, jvhether Ttthable, p.40 5.
Doves in a Do've-houfe, what Tithes they pay, ibid.
Druids, their Idol-Temples, when firfi aboli[hed in England, p. 16.
i^. 4'
Drunkard, whether A^ionableto call one foy p.5 1 5.^.3. p.521.
5^.14-
Dubritius, Archbtjhop t/Carlegion in Wales, p. 17. 5^.5.
Duplex Querela, what, p.275.)^.8.
E.
INDEX.
:' E.
ECdefia, whence the word derinjed^ p,l^6, ^,t.
Ecdttidi^kz] Laws of E^iglaiid, the antiquity thereof ^ p.i'Zp,
&c, 5^44.
Edgar Kin^i his Zeal for the Church in his Oration to the Clergy of
England, p.py. 5J.1.
Eggs, how^ when^ and in what cafe Tithahlcy p.405.
Election ofBifhop^ how^ and by whom to be made^ P«43' ^''^•
Eleutherius Pej>^, what fiyle he gave King Lucius, p,4. 5^.4. p.i 1 1^
^' 8.
Elopement, what it fgnifies^ p.508. 5^.13.
Epifcopal Authority dtrivedfrom the Crown^ P-S©. 5^. 10. Epi(copal
Jurifdi^ion endeavoured to be taken away^ P'3^>37« J^-^.
Epifcopocide in a Clerk, Pety Treafon^ p.35. ^.ip,
€ftovers burnt m a Hcufe, whether Ttthable^ P'372» ^4^. P'3^2.
Ethelbert, KingofKtnt^by 2/-'^ow Canterbury was given to St. Auftin
forhisSeCy^.!^, 5J.i.p.i7, 5^.5. Whether he built St. ^wXs Church
in London, p. 17. 5J.7.
Ethtlwolph, Son and Succejjor fo Egbert, thefirjlfole King of Eng-
land j he was Bijhcp of Wiiichefter, p.3^. ^.ip. ^nd the firjl that
enriched the Church <?/'' England 7vith tithes^ p.348, ^.i.
Euginus, whether be were thefirfi that ftyled himfelf Pope, thefirfi
that confecrated Churches^and thefirfi that decreed Godfathers and
Godmothers tn Bapttfm^ P4P* §'7'
Examination, when, and by whom to be ferformed, p.270. 5^.1,5.
Excommunication, 2/^^<a!r, ^.62^. §.1,2. Twofold^ ibid. What iff
tended by Excommunication iplo fa(^o, p.62d. ^4. What the
caufes in Law of that Excommunication^ p.638. §.8. Jn what
manner Excommunication is to be frcnounced^\)*626 .^,6,Bywhom
it is to be certified^ and how^ p.^3 5- ^'^' Whether the Ordinary
may take jBo»^ o/" ^« Excommunicate, for his fttbmilfion in order
to Abfolution.p.S^y. 5^.25. ;F/6ffi&er Excommunication in a Fa^
tron^ befufficient caufefor a Btflwp to refufe fhe Clerk frefented b^
fuch Fatron^ ^,266, j^.je.
_ i
I N D E X.
E
F Acuity, orCcurt o/* Faculties, or Vacuity -Office^, what, p. 107.
5^. 8. The Archbi(hop of Canterbury im^B-werd by the Statute
to grant ¥zQ\x\tKS, ibid. <?«^ p.15?. 5^.li. The force and efficacy
thereof as to Commendams or two Benefices, p.l07,iop,i 10. jJ.8.
The difference between <» Faculty fo take and a Faculty to retain <<
Benefice, p.lio. j>.%.
Yi^Xoi^'grounds, whether Tithable, P405*
Fees forVrobate of TeHaments, what due by Statute, p.i05,iotf.
Fenny-Lands drain d, whether they pay Tithes frefently, p.406.
Ferae Naturae, Creatures of that kind, whether Tithable, p.405.
Firft-Fruits, ^7 and to whom payable, P.S37. ^.2. Vid.hmmts.
Fifh taken in the Sea, or in a River, Vend or Pifcary, whether Tith-
able, and how, p.4od. and^p-S^y. ^>3^' ^-379'^'^^- P'375*
Flamins, hortf fnany anciently in Enghnd, p.i<5. ^,4.
Flax, what Tithes it pays, and when, p.407'
FoYcf\-Lands, whether Tithable or not;, and by whom, p. 407,40$,
Not fituate in any Parijh, to whom the Tithes fijall be paid,
p4o8. Whether Vriviledgd from Tithes, whtlff in the Kings
hands,otherwife in the Subje5ls,^.s6p.^.^i Whether they are Prt-
viledgedfrom Tithes,' if tn the hand of the Kings Patentee or
Grantee, ^-399 A^^*
Fowl takeny in what cafe Tithable or not, p.408.
Fraud in fetting forth Tithes, whether treble damages in that cafe^
p.380. 5^.72. p38i.jJ,7d.
Freehold of the Church or Chancel,i« whom it is, p.i 37* 5^*3' P-^S*
M.p.>3p. 5^-5- P- 142. 5^.9- p.i5o.5^»22. p.151. 5^.25, p.155,
^•38.
Frigidity in the Man pleaded by the Woman,how the Civil Law pro-
ceeds thereon, p. 4P3. 5^.1.
Fruit-Trcex, what Tithes they pay, and when, p.408.
Furze, whether Tithable, ibid.
f.
«
«
G.
INDEX.
^ G.
Gardens, ^.i/. Tithai>le, p.4op. pag. 371. ^1
^'sS^T"^^^^ ^'"^ ^^iC;;^H.2. a^^ 5;jfc,^ ./Lincoln, pag,
Gkab 7^^^^,p 40p ne Lav. concerningthenthes thereof, ibid,
.T r*\'°;7 S' '-^^ P^r/^«^^e Imfropriate and Leafed, •whe-
ther rtthable, ibid. ^Wpag.368. rea-.38. ^;6,,/,,, Gleab tnLeafe
paysTtthe,y^^^62. ^S^AcGt, 16, Whether the Freehold of the
G eab, durtng a Vacancy, be in the Patron or ».f,pag.i83. fecft p.
Gleab manured and fowed by an Incumbent that dtes before Har-
^efi ii^hajhaU ha'ue the Corn, pag* 3 1 8. fed. 3. '^
4p! feS' '''^'^^°^'^°'^'" ^'^ ^''/'^^M ^^^ Ortgmalthereof, pag.
Grain, /^^^j ^ Tredial Tithe, p» 41 r*
Grant 0/ Tithes, whether good without Deed. p.38(5.
Gr^,what Tithes thatjays, and how, p. 410, 411, Grafs-cocks
Tithed, pag. 374. fed. 50.
Gravc-Stonc taken away, whither Alienable, and where, pag^i 57.
Gravel, whether Tithable, p« 41 1.
Grounds let to Strangers out of the PariJIj, who anfwers the Tithes
ibid. *
Guardian ./^^^ Spiritualties^^ Offee,and by whom Confiituted,v>Ag,
5J.1. p.4r.5J.4 5. His power in the Vacancy of an Archbifl^oprtck
p,40,5^,2. What remedy w ca/e hejhaU refufe to grant Faculties wl
Ullpeniations,u'/&^r<; they may or ought to be granted, p. 40, ^J.jv
rj
iJ. Alimots, anciently what, pag> P7. ^<a. j -
n^J, the Law touching r/f^.-Hay, p.412,4,3. Whether theTithes
thereof may belong to the Vicar, p. 381. 5^. 77. r^,. Crops ./-Hay
Hazel, Ho ly, Willows, W White-thorn, i. ^^,; cafes they may bl
V^i^^-Un^,,whether TithabU, p.3 5p. § .i<5.p.3(55,.;^.3p.p.374, ^.53.
D d d d d Hearth-
INDEX.
Hearth-peny, the ancient CuHom thereof,p.^^6. §.35. p.372.§.45.
Heath, Furfe, and Broom, in what cafes Itthahle or notj p 4131.,
Barren Hc^ih-ground, in "what fenfe excufed of Tithes for thefirfi ^
5ci;e»;'e^r/,p. 375.§. 53.
Hedging and Feucing-?r<?(?^, whether Tithahle^ P«370, 373'§"43'
Hemp, what Tithes that fnys^ P4J3' and ^■■^66. §.3?.
Htyfers, whether Tithes due for -Herbage thereof p. 370. §.43.
Henry dc Blois, Brother to King Stephen, was Bijhop of Winchefter,
pag. 37. fed. 1^'
Henry de Beauford, Brother to King H.4- "^^ ^^fi Bijlmp of Wiu-
chefter, ibid.
Herbage, what, and how Ttthahltor. not, p. 570,371. §.43. and
p.4l3. Herbage of Sheep, whether Tit hable^^. <^6^^
Htrcfie, what, and whence the word deri'ved,^*'y6o,')6i.^.^. Three-
foldfihid. Where cogniz,able,p.')6i, '^62,^,6, How pmij}jed,p.^62y
5<53. §7- I( ^ Lepra animae, ibid.
Hereticks, an Alphabet icai Catalogue of fuch \ their Errors and
Herefies \ the times and places when and where broached,and the
Councils wherein they were condemned, p.5^4^ 5^5> ^^•
HighCommiilion-Cowrf, the Confiituttons thereof, p.ii,«2. $, if.
What the power thereof was, p» u8. §. 14.
Hoel-Dha,^ftf Law againfi fighting in the Church-yard,^,l^o>^»6^
Honey, whether, an dhow Titbabk, p..4i3>4i4»
Hoods to be worn ^^Prodors in the Aich€S,when and by whmfirfi
enjoyned, pag. 103. fed. 4.
Hops, what Tithes they fay, and how Tithed, p.4 14. Whether Great
Tithes to the Tarfon, or Small Tithes to the Vtcar, p. ^66, ^. 32.
Whether they may not belong to the Vicar by Vrefcriftion, p. 38 1,
^. 77. The difference in Kent {as to Tithes) between Hops in Or-
. chards, and Hops in Gardens, pag. 3 66. fed. 32.
Hop-Poles, whether the Wood thereof Tithable or not, p.4 1 4.
Eor(es for Husbandry, whether their Pafiure be Ttthable.^.yji.%A^*
Hofpitallers, either Lay or Spiritual, by whom Vifttabk, p. 34- ^« ^ S»
They were difcharged of Tithes, p. 402.
Houfes being Dwelling-houfes, where Tithable, p. 414, 415.
Hubert, Archbtjhop of Canterbury, pag. 7. fed. 11.
■Hundred-Co«r^ the Jntiejuity thereof, and extent anciently of its
Jurifdi^ionj pag. ^^. fed. I. pag. 84. fed. 7.
^
I N D E X.
I.
JAde, To call one Welch Jade, whct'her JBionahle, and ovhere^
pag. 522. fed. 17.
Jealoulle, bo-w the Civil Law proceeds therein^ pag. 472. fedt. 7.
Ideocy,m what cafe Triable in the Ecclejtafiical Court ^^.lio.^iiy,
Jewifli Hereticks, whofucb Jnciently, and what their Herejtes^ pag,
, 580, c;^c. fedt. 51.
Impotency in a Man^ how to he provedj pag. 4^3. (edit, f .
Impropriations, how many within York Diocefs^pag, 1 4. (tdiZ.Fid,
Appropriations. . '
Ina, fy&e Saxon King^whether he be thefirfi that gave Peter-pence to
the P(j;>e,pag.i i2.red:.8. His Law againjl Striking in the Churchy
pag. 140. fe(9:. ^. .:-^h .b-hirA ">!
Incumbent, w^^f, p.3 17. §. i. Legal Requijites to Make a com fiat
Incumbent^ p. ibid. His Rights, p. 3 1 8. §. 2»
Indians, their Jevere funijhment of Adul»ery,p. 471,472. ^.6,
Indicavit, what that Writ imports, the endand ufe thereof, in what
eafes, and from whom it may be awarded,p.6^'Jt ^»^.p* ^39-
'lnd\Ji^ion,what,and how executed,p,2']%.kj*\6Whether it be aTem-
poral A6t, and cognizable in the Temporal Court, p. 2 79 §.17.
Infawt, if under age Admitted and Infiituted to a Benefice,it is voiJ^
p.280. §. 20. Whether AHion lies againft a Wixiot under Seven-
teen years of age for Slandering, p. 524. §.23.
Ingulphus, Abbot ofCtov/hnd^ his Report touching Appropriations^
p. 221. §. I
Inftitution, what, the Fornt thereof , Requifttes theret», and what
Remedy^ if denied, p. 274, ^, 8. InftitutionS are cognizable in the
Ecclefiafiical Court i p. 123. ^.28. The difference between the
Civil <?»^ Common Law touching IniUtutions, p.27d. §. p. Whe-
ther it works a Plenarty without Indu5lion, p. ibid. §. 1 1. p.280,
§, iS. p. 281. §. 21.
hchndt until what time under the Archhjhop of Cintcthuty, pag.
20. fed. 13.
lile of a Church, who may prefcribe to it, p»i38. 5^.4. or whether it
may be peculiar to a Family, p* ibid. ^. 5. p.i 58. ^. ult.
Jurifdi(^ion Ecclejtajlical and Temporal, the Original of that diftin-
Bion, p.133. ^. 44- '
Juris utrum, for and againH whom that Writ lies, p.205, 5J. i.
D d d d d 2 Jure
INDEX.
Jure Vditxonzt\JiSy what that Writ imports,p^2c6, drc. How the L/ir'
proceeds therein,}^. 179*^*2. In what cafe the Bijhop may make «>^
'thereof, and his fower therein, p.33.5^»i 6, At whofe charge it ts^
to he, pag* 180. fea,3. What Jus Patronatus is, pag,205,fedii.
Jus Canonicum, the Original thereof, pag*i 32* fe(£t,44*
K.
IV Aiiute King^hisfiriB Law concerning Ahhots,^g,^^2Xcd[,^t
Kwi'VQ^whetherABionable to call one fo,^.')i7M'^»^V'52i-^'^^^'^^
L
hmhs^howtithahle.'pA^^, they yield a fmallTtthe, and may
I belongtotheVicar,^A9'^*^*^-V^%9*^''^^' In what cafe they
may be Great 7ithes, and payable to the Farfon,^*'^66.^.^2.
Lands accruing to the Crown by the Statute of DiM^tions^whetkr
they (hall pay Tithes,.^* ^16^
Lapfe, whaty pa42,^.i. The Original and gradations thereof, ih\d.
The difference between the Common and C^non Law as to the.
time o/Lapfe,p*245.§.2.^i&ew the Six Months fhall commence i\hid.
How the Six Months before a Lapfc are to be computed by Days^
and how Notice fhall be given to the Patron or not before the
Lapfe incurs, p*274* M- Whether a Grant may be made of a
Lapfc, p.248,^.5. A Lapfe is more a Truf^ than an Interefi iibid.
From what time the Lapfe ^all incur ^ ibid.5J«<5. ht what cafe the
hipfe may incur to the Ordinary, vfitwithfia.ndmg a Quare Im-
pedit brought by the Patron, pag* i83» fed* 10.
Leafe made by one Bijhof dc fade during the life cf another de Jure,
of the fame I^iocefi, whether good, p3g*3^* ^^^* 23, Leafes of
Tithes, whether Triable in the Ecchfiaflical Court, \>^%* 1 27* fcc^.
40. They mufi be by Deed, not Parol, pag. 38 2> fed .8 1. Leafes
made- by Parfons,^z%* ipp* ^^^* ^^* ^^fi^ ^^ Common Law
touching the fame, p*ipo* fed.io,ii«pag.lp3«fe(it*i7»
ttg^cics, properly fuable for in the Ecclefiafiical Courts, pag*ll3«
fed:. 1 1 ♦ paga2 5, fedt* 3 4» ^»^ pag« 1 2 6, kGi^ ibid*
Legates of the Pope, of Three forts, pag«2e* fed.12. pag«i02. feCt.3.
LegatusNatus, li';?)^?? it imports, and who werefucb in England,
pag. 30. fea. 1 2 . pag.2 1 , fed. i^. and pag*i.05. kdi,6.
Lefiec to Parfon and Vtcar, whether he may Sue for Tithes in cn€
Abiion, or mufi divide his A^ion, p.38i5382, 5^. 80.
Letter
INDEX.
Lcjter exfreffing the Grant of the Next Avoidance, vain and imf"
,^e^uai, p. 285. i. 4.
I.i£cl, whereof a true Copy denied^ is ground for a Prohibition,
p. 122. ^, 24.
Licenfe to carry away Tithes without fetting them forthy given hy a
Colleger of 7ithes, whether good, p«37P* 5^» 71.
Lime, Maile, Slates, or Tiles, whether Tithahle,p,^iy.
Ljndwood, what he was^ and when his Provincial Confiitutiens
were compiled^ p»2o84 5J«5..
Litigious, how many ways a Church may fo ^fctfw^,pa8i,i82.§.d.
IxAhtdSyWhat they were, and why fo called^ p«56l.^.5.
hondoYij anciently an Jrchhijhoprickf p*i7 4^ >J* The Metropolis of
Britannia Prima, p. id^jJ, 4, The Archiepifcofal See thereof re^
moved and placed at Canterbury hy the Saxons, ibid.
Lops of Trees ^ whether Tithable after Twenty years growth^p*^!";^.
Lucius,F/>/? Chrifiian King <5/'Britain5p«i5.§.4. By whom converted
to the ChkiffianFaithj ibid. When^ Baptized^ p.i^. 5^4.
M.^
MAhumetans , their fever e punijhment of Adultery, p* 471*
Malum in fe, and Malum prohibitum, the Legal difference between
them^ p# io« ^, 14. p,i87^5J.4,
Marriage after Divorce^ altera parte exiftente , whether lawful^
fAn^'Lands, or Fcim-Lands, newly gained fiom the Sea^ whether
under the notion of Barren-Lands, as to any discharge of Tithes^
p. 387.
St* Martins le Grand,Londbn, whether it he an Ecclefiafiical Bene
/ce, p,202.5J« 1(5.
Maft of Oak., or Beech) whether Tithahle, and how, p» 41 7.
Mafters c/* Chancery, what they were anciently ^ and why fo caSedy
Meadows over-run with Thorns and BuJhes,whetherTithahle.,^*^lf*
Metropolitan, 7vhy fo called^ the derivation of that word^^A*^*^*'^*
Midwives quefiion'd in the Ecclefiafiical Court for exerajing that
Calling without a Licenfe from theOrdrnary^ whether Prohihi-
tionlies^\>.l26. ^,^6*
Milk paying Tithes^ exempts the Cheefe from payment therecf'p*39^o
420.
Milch-kine, whether their Vafiure he TitMk)\>*^'J2* p.^^*-
Milk
I N D E X.
^ills, the Law concerning the Tithes thereof^ p. 417. r
Mill-Stones, in what cafes tithei jljall be paidofthevf, and hffi^
Wines or M'maih^ whether Tithahle^^. 420, and p. 3^8«,§, ^6,
Mixt Ttthesy what, p. 420.
Modus Decimandi, Jifhat the Law therein^'p ^lOyd^c. Cognizable in
the Eccleftaftical Courts p.i ip. §.17. p.125. ^. 35. p.127. §.42«
• P-3^4'P.373'§4^-P^37P. 5^.^7-P-3^3-5^'28,2p.p.i28.5J,43.
In what cafe it may be Triable at Common Law^ p. 568. §.3^.
A Modus pleaded to. obtain a Trohibitiony pag. 377. fed. <5o.
Mo'eties of Tithes^ if between two Parfons, whether the Parijhiomr
be obliged to divide them, pag. 362. ied:. 24.
Monaftcry-L^«^/, the Law touching them in reference to Tithes^
P' 422, 423.
Monuments erected in Churches or Church-yards, if defaced or pulled
■ downy what Allien lies, and for whom, nnd where cognizable ,
pag. 142. fed., p. pag. i3p. fed. 5. pag. 154. fed. 33.
Mortuaries, the Law concerning them, p. 423, 424.
Mulier, what at the Common Law,p. 478. 5J.2.p, 48^. §.17. What
by the Civile p. 487. 5J. ip. How it dtffefi from Bi^^idy p. 478,
5^. 2.p.48(5,487. §. 18, i p.
NAg, Whether Tithes due for the Vajlure of a Riding-Nagt
p. 425.p.3do. 5^. 18.P.371. ^.43. ^w^p.42p.
Ne admittas,w;/&<3ff the Writ imports^he end and ufe thereofpzg.6^S,
fed. 4.
Ne unques accouple en Loyal Matrimonie, is to be tried by the Cer-
, tificate of the Biftwp, pag. 122. (€&[, 21.
Next Avoidance, what, pag. 2 84. fed. 3.
Nomination, what, p. 25P. §, 11. Salifications thereof, ibid. In
what cafe it may be the fame with Frefentation, p. 2<5o. §. 12.
// may be corrupt and Simoniacal as well as the other, ibid.§,i3.
Non obftante, in Faculties granted by theVope, of what e^icacy in
Law, pag. I op. fed. 8.
Non Refidcnce, what, p.3 ip. fjP,io. What fiaU excufe it, p.320.
§.p, 10. p. 32 1. §.13. WhatfiaU be held Non Pveiidence within
the Statute, or not,ihid* ^.i2yi^.p.'^2^,%,i6.The Ancient Canons
touching Non R€lidence,p.320. §.10. p.322 . ^.15. Whether Non
:Refidence makes void a Leafe of Tithes made by the P arfon^pz^^,
323.fed.K5, and pag. 384. fed. 18.
Notice
INDEX.
Notice of Avoidance^-when and how to he given to the Fatron,r). * 8 * .
^. 4. p. 245.-^. a. To he given in cafe o/Ceflion, p.287. 5J.11,
Whether Notice of fetting forth Tithes is to he given to the Par-
7r«; p.575. §. 58. p« 450.
Novatius, hff Error concerning Bijhops,p.2^^ §. i,
Nurferies of young Trees and Plants, whether and in what cafe Ttth-
ahle prnoty p, 42^, ^ •
OAth 0/ Supremacy, the Of iginal thereof p.3. ^. 3. OatK^
Reficlence,p.32o. ^.11.
Oaks, the Law of Tithes touching them^ p. 42 <5.
Oblations, what properly they are, and the Law thereof p.42d,427.
What are mt fuch^that are commonly fo fup^ofed to ^f,p.i 56.§.38.
Obligation to Refign a Benefiee,whether gooa^p.i^p* §.7. Obligation
not to accompany fuch a Woman^ taken in the Ecclefiafiical Court,
p» ii4« ^* 12.
Odo, Brother to William the Conqueror, he wof Bijhop of Baycux
in Normandy.
Offerings, Oblations, ^» J Obventions, the Law concerning them^
p. 426,427.
Office of Regifi^r to a Bi^jop^ if controverted, where cognizable,
p<i25, 5^. 35. The difference in foint of Jurifdi^lion between a
Right to and Exercife of an Office^ p. P3* 5J.20.
Officiaks Fonntiywhat, p.8i. ^J^i. p*8p, 5^*1 5. ..
Orchard, the Ground thereof {owed with Seed, whether Tithahle,
p.427. TJ/ii^j 0/ Orchards by Cufiom,'p.^6'/,^.^^, Of chitd for-
merly Arable, to whom Ttthahle, p*36i« 5(«2 1.
Ordinary, w;i)<?f,p*3 2 ♦ ^^i^.Why the Btjhopfo ealled,p,2^.%.2^ What
the Civil Law under fiands by that word [Ordinarius]jibid.?Fi/«-
ther he may cite a man out of his own D/oce/},p«33,37.§i7+p»i043
105* ^i^. Whether he may dtj^ofe of any of an Intejlates Goods to
Pious ufcs, in what cafe, and under what Cautions and Limit ati'
om,p.i o6« ^*6,He hath Curam Animarum,p432+ §.14.
Organs in a Church, to whom they belong, p» 167* §. 18. If taken
away, where the A^ion lies, 'p*i6i,%.2^
Ornaments of the Church, at whofe charge to be provided, and how
the fame jhall he charged, p«i 37. §«4. p«152. §*2p. p.i 54, §,34,
P,
INDEX,
1 I !■■ I I III —I mil in I - ■III Bl^-i
P. ^
PAgans, thefirange Funijhments infiiSied hy them on AdulCorerSj
pag. 470. Ted. 4.
Pallium Epifcopale, a defcriftion thereof , pag. 23. (t€i, 2.
Pander, whether to call cm jo be ABionable^ pag. 524. fciS:. 2 1,
Pannagium, what the wordfignifiesi p. 383.
Pardon, whether it may extend to fr event a Deprivation, pag. 3 i2o
fc(f^« 15. Whether a General Pardon jfc<7^ bar a Suit in the Ecclc
fiafiical Court for Shndet, pag»i2i, ied:, ip. In 7y hat cafe it
may bar Cofis of Suit ^ pag. 1 1^. (c(k. il.
Park di(j>arked^ how Tithable^ pag. ^6\.{tdi» 20, 2 1. pag 3^4,3^5.
fed, 31. pag.427,428. How to be Tithed, if converted into Til'
lage, pag. ^61, (ed» 20. andpa^. 380, re(ft.75.
Pariln, the various acceptation of that word, p* 355> 35^» i^«8. By
whom Varices were fir(h divided,p 72. ^.8,^. Parochial Bounds^
where cogniz,ahle, p. 125.^.37. p. 12 8. §.28. p.125. ^.3i.p.l$7.
5J. 40. p J 53. 5J.3 1, and 380. j^. 74. fif;»j^ controverted between
Spiritual FerfonSyOre cognizable in the Ecclefafiical CourtiP»i2^,
^.27. Othervnfe at the Common Ltfir, pag. ibid, fed.28.pag.124.
led. 30. pag. 1 2d. fed. 37.
Parifti-Clerk, ^^ 52^£)ow to be chofen^-p.i66. j^.12. andipA$2. 1^.15.
PsixCon^who properly fuch^p.i%'$,i^6.p.i.He hatha double Capacity^
p. 1^3. 5^.16. Parfon Imparfonce, what, i8d. ^. 2. Hew he ought
to be qualified to be aParfon^p.i^'J. ^.^. Recfuifites in Law for
that Fun^ioniihidWhat his Rights are,p.l^6.^.^. The difference
between Parfon, Paftor, Rcdor, Vicar, and Curate,p. 1 8<5. 5^. |.
Parfonage, Churchjtf»<;^Rxdory, are terms Synonynious, pag. i88.-
Partridges and PheafantS, though not Tithahle^ yet payable in lieu of
Tithes^ pag. 3^1. ftd.20. What Tithes tame Partridges jJW/ pay,
p. 428.
Pallure, the Law in reference to the Tithes thereof, p.428,42p,
Patria obedientiae, and Patriaj confuetudinarineif^&e difference between
them, pag. 1 30. Ted. 44.
Patriarch, what^ pag. 20. (ed:. i^. A Style or Title anciently giveit
to the Arcbbijh p of Canterbury, p. ibid.
Patron,'U'y5)<?/ he island why fo called^ pag. 1 78.red.i. pag. 2 05. fed. I.
Who ts properly the Patron of a Vjcarage.\}a.g,ipp. led.p. Whether
a Patren hath any thing to do in the Church during a Plenarty,
: pag^i 51 1, kd:. 12. His ccnfent rcquifite to Commendams, Unions,
and Appropriation of Churches jpz^,22^, fed. 8.
Paul
INDEX.
Paul or St. Paul, ivhether he Preached here in England, p. i<5. 5J. 4,
.J St. Pauls Church London, by "whom {irfi bmlt^ P* *7» P- J7«
raulinus Archbi^Kf o/Yoxk^ p. 14.5^.5.
i^ffe, if} what cafe Jiot Tithable^ P'42p.
Pelagius, a Monk of Bangor, his refufal to appear at Pvomc upon the
Popes Summons, P.111.5J.8.
Pelagian Herejle, when this Kingdom firH infected therewith^
and by ivhom fuppreff'ed., p.i<5. p. 5.
Peculiars, ar the Court of Peculiars, what it was, p. 1 1 p.5^. I (5. How
many Peculiars in the Pro-vince c^ Canterbury, ibid.
Pelts or Fells of Sheep dying of the Rot, whether T'ithable, p 42^.
. Penlions fuable in the Ecclejtafical Court, P.127.5J.41. p.i88.5^.<5.
p,i5?8,5<.5. p.37^.5^.57.
Pentecortals, what, and whence fo called, p.73,74..§.io.
Peters Church in Cornhil, London, once the Cnthedral of a Diocefs,
p.17.5^.7. By whom founded, ibid.
Peterpence, what, the Original thereofand why paid to Ronnejp.73,
74,§.IG'. p.ii2.§.8. p,35^.5!».p. 77?c Conquerors Law concern-
ing the fame, P.73.5J.10. Anciently taken from the Pope, and
given to the -King, p. ioo.§.2.
Pews in the Body of the Church, at whofe dijpofal they are, p. 137.
5^.3.p.i56.§.38. p.i58.§.ult. V/V. Seats. ^
Phealants, of what kind are Ttthable, p.430. i hough properly not
Tithable,yet as a Modus may be paid for Tithes, p.38o.§.75.
Pidtures in Church windows, if pulled down, whether A^ionable^
p.i 38.5^.5. ^
Pigeons, in what cafe Tithable or not, {^30. Spent in the Owners
Houfe, not Tithable, p. 3^8. jj. 37. p. 375. ^'. 53. Otberwtfe
if fold, ibid. Felony to (leal them out of a Dove-houfe, ibid.
Vid, Doves. ^ •
Pigs, how Tithable, p.430.
Pilchards, and other S eg- Fijh, whether Tithable, and how, p. 3 7^.
%,62.
Viu\p, whether, and where Actionable to call one fo, p.52 1.5^.1(5,
Pits of Stone, Lime,&c. whether Tithable, p. 430.
Vhnts tranfplanted, whether Tithable ^ p. 43^*
Plato'j Ltfw^ c<5«o€rw;«g- Adulterers, p. 47 3 k'9'
Plurality, u'/&^/-, p. 2^2. §. I. Who may grant or receive Pluralities,
■ p. 2^4.^.3. Qualifications in Law touching Difpenfations for
Pluralities, p.2p5.5!».4. Whether the taking of a Parfonage with
a Vicarage endowed, amounts to a Plurality within the intent of
the Statute, p.2p5.§.5. The Text of- Cmon Law againjl Plu-'
ralities, p.300,5^.15.
E e c e e Pope
INDEX.
Pope, 'ivhenbisufur^ationinEn^lmdfirfi h^an, p.py.^i. ff'/jen
and hy whom here firfi abrogated^ p 1 8. §. 8. mat his f07^r
was in granting DiJ}>enfationSy p. 5. §.7» /^
Poftulatioii, what J p45?.<5.8. ' *
Prebends, what^ and why fo called, p.3 5. ^. i P.
prerogative Court <?/Cantetbury,fi?e JuriJdtBiontbererof,ip.io^.^.6.
Prcfcriptioii, p.431 to 436. The Law thereof tn reference to Tithes,
ibid, and p.358. §.12. In what Court cogniz^bk^ p-3^7'§'2p.
p.i2 5.§.33. In what cafe a Parfon prefcribing for Tithes may
fue on that Prefcriptioii in the Ecclefmftical Com%ibid. Prefcrip-
tion mserly Sfiritual, cognizable in the Court, p.i 56. §.35). Pre-
faiption to a Seat tn a Church-fir to Priority in that Seat. whether
cogniz^ableinthe Temporal Co«rf, p.i38.5J.5.p.l40.5^-7-P-H2.§.p.
p.i45?.5^.2i.p.i55.§.38.p.i47.§.i8.p.i5i.5S'.25. Whether a Vie-
Icription to Ecclefiaflical things be cogniz^able tn the Eccleftafiical
Court, p.! ')^.^.-^^^ Pickrl^doii pleaded by a Parfon agatnji- the
firfi Endowment to theVtcar^whether allowable^ P-375-5^-54- P«-
fcriptionde non Dedmandowof denied to a Spiritual perfon.p.^^p.
The difference between th& Civil and Common Law in point of
Prefcriptions, p.125?. §.43.
Prsmpniiracenfes, iioiv dii:l3arged of Tithes, p. 402. '
Prcfentation to a Beuefice, what, p.254. 5^.4. Where the Right of
Pre(entaiion is 3gm'Z,ahle, p. 2 56. §.d. What the Law touching
Prefentation w, tn cafe of Coparceners, Jointenants, and Tenants
in Common,^^. ibid. §.7. How the Pre^mtation js to be in cafe of
Co-heirs, p.^5-§.4. Whether a Prefentation be re-vocable before
Inftitumn, p.2 58,2 5;'^.9,io. What ?idmm\on jhaU fer've for
^ Tiirn, p.262. ^.ic). To what things 4 Prefentation way be,
p.263.§.2i. In what cafes the King Jljall have the Prefenta-
tion ^;t/j^if Prm^.-jn-ycr, p. 2^3, 2 (54. p. 23, 24. The difference in
Law between the King and a Common perfon as to Prefentations,
p.2d5.§.28.
Primate and Metropolitan of all England, when and how that fiyle
cr title firfi defied m the Archbijhop of Canterbury, p.l8.5$,8.
Priority m the Seat of a Church, whether it 7}iay be prefcribed, p.
140.5^.7.
■Priviledges of the Clergy, ^.iri'&c. §.18. Privikdge in reJpeB of
Tithes, what, p.43^'
VxQQ\xtzt\on,what, p.^7. ^.i.When and to whom payable^ihld.Whe'
ther due without the /iBofFifiting,pM.^.2.p.6^.^.^.p.'J'y§.lo.
p.78.§.i 1. A7iciently paid in vidtualibus, whtn and ho7P changed
• into Many, p.68.§.3. How the Canonilts define it, p, 6c). p. 5.
only cne Procuration to be paid to the Ordinary, how that is. to
be under fiood, p. JO* ^0,6,
Prohi-
INDEX.
ProhibitioUj in what Cafes it hath been grantedy p.8p« ^»i6. p.i 14.
j^,I2. p.l2l.^.l'J,p.p^.^,20. p.I2?.5>.22.p.ibid. ^.23,24.p. 125.
5^-3^j37.3Sd3P'P'I28.5^.43, P.138.5J.4. p.140.5^.7. p.144. 5^.15.
'^^1113.5^.11. p.I2l.§.2G'. p.I48. 5^.20. p,l5l.5^.34. I4p. 5^.22.
p,i5i.^.25.p,i52.5^.25,28.p.i53.§.3o,3i.p.i27.§4o.p. up.
§.i5.p.i63. §.5.p.ii4.§.i2,p.i4p.§.2i, p.i88. §.5. 142,5^.^.
p.i52.§.2p, p.i53.§.32.p.i55.§.38.p.i57.5J.40.p.374.§4p,
p.377.§.52.p.37c7.§.67.p.387,3P5,3P4,407,4op,4io,425,42p,
430,43<5, p.473. §. 7. p485.5J.15. p.177. 5J.8p. p. 373. §.47.
■ p.ipo.§.p. p.id5,§.i2,i3,i4.p.i57.§.ip.p.i76.§.8. p.277.^.12.
p.p2. §.ip. p.ioi. 5J.3. p. io4» ^,6, p.i ip. §. 17. p. 147. §.i8.
p.2p8. §.9.p. 1^15.5^.1 5. p.198. ^.4. p.258. §. 10. p.257.§. 34.
p.Il5.§. I2fp.2pp. §.II. p.28l.§.22,23. p.Ild. 5^.12. p. 1^4.
5J. P,ii.p.5ip.f7.p.35p.:jJ.i4.p.3dp.5J.40-p.ip2.5J.i5.p.3d4.
5J.30. p.368.§.37.p.36 1. 5^.20,21. p.3(52<5J.22.p.3d8.§.38,3p.
p.37i.5^-43- P'375-§-53- p.3<^2.5J.25. p.355. 5J.3 1. p.35p. §.3p.
p.378. 5J.64. p.382. 5J.82. p.520. §.12. p.517. 5)^.5. 505. 5^. 12.
p.5 2 1 . 5^. 1 4. p.5 2 3 .<^, I p. p,5 2 4.§.2 1 . In what Cafes the Pro-
hibition ^^f^ ^^f« ^e«/t^, p.83.§.4. p.ii5,ii5.§.i2. p.iip,i2i.
§.17,18. p.l22jI23. 5^.25,215,27,28. p.124. §.2^. p.I25. §. 31.
32,33)34. P'i2^.§.3P'P.i27,i28. §42,43. p. 137. §.3. p. 144.
§.ii.p.i48. §.ip.p. 1 53. §.30. p.i74.§.i.p. 152. §.27. p. 354.
§.2p. p. 380. §. 74. p.155. §. 3p. p.i(5d.§.i^. p.ip8 §.5, p.3!8.
§.7. P.35P.5J.15.P.120.5J.17. p.p2. 5^.ip. p.3(5d. 5^. 33. p. 37d»
5J.57. p.3^4. 5^.2p. p.386,38p,4i24i342o,42P45 145(5454.
P.520.5J.15. p.512.^.18. p.507. 5^.12. p.52i.5J.i5. p.523. 5^.17.-
p. 5 2 5. §.24.p 525. 5J.24. p.527. 5J.ult. fVhet her a Prohibition
way he granted after Sentence, and in what Cafes, P.IP2.5J.15.
p. 381. 5!>.75. p.i 1(5.5^.12. p. 120. 5J.17. p.124. 5i.2p, Whether
a Prohibition may he after an Affeal, p. 1 48. 5^.2 1 . A Prohibi-
tion -whether grantahle after a Confultation, p. 147. f. 18, or de
novo to an Appellant,^^'i6(? had a Prohibition in thefirfi i^f^ance^p,
3 do. 0. 1 p.p42 1 , Prohibition granted againfi Cofts of Suit gi'ven
to an Informer, P'473' 5^« 7* Whether a Prohibition liesy in cafe
proof ^/ one fingieWitnefs he difallowed in the Ecclefiafitcal Court,
p.352.o.22.p.ii3.§.ii.p.ii5.$J»i2.p.i2§.5J.25.p.i28.5J43.^j6f-
ther a Prohibition may he granted the lajt day of the Term^p.!^"/,
5^.1 8. or to fay Proof in perpet. rei memoriam, p.374.^.4p.
Proxies, what, p.70. 5!>.5. p.75.^.1 1. The fame with Procurations,
ibid. Whether extinguij%ed by the dijfolution of Religious Houfes,
ip.y 6. c-^cf}. 11. Not kno7vn to the Primitive Church^ibid.Whether
grant able by a Bifiwf to the King,^\\yid. The Cafe of Proxies ap-
ly compared to the Cafe of Tithes, p.7P.^. it, A Cafe o/Pvemark
At Common Law touching Proxies, p. 'J'),&c. 5^.n.
E e e e e 2 CL
INDEX.
I.
QUare Impedit, for and againjl -ivhom that Writ liesj p. ^45*
■ ^,^. of what things it hes^]p.6j^^.^.2op.i. Whether it lies
for an Archdeaconry^ ^.66. §.14.
Qaarta Epifcopalis, what^ p. 7 7. § . 1 1 .
Q}\:ixi\tSyV-'hetherTithahle^\>,a^^6.
Quean, whether ABton lies for callwg one fo^ p. 5 17- ^' 5- P-S^S*
§.l8. p.520.§.I2.
• Q^ieen Elizabeth, /per Declaration touching her Suprewacy^^.iO.^.l i.
Declared Supream Govcrnefg on Earth ot the Church of En-
gland-y p. ibid. §.14.
Qucllmenj-what J hj .whom Eligible^ and wherein their Offce doth
confifi^ p. 16^.'^, 6.
Quorum Nomina, Trocefs of that kind prohibited, p. ^o. §. 6,
p. S2.§.3.
R.
3 Abbits, whether Tithahle^Tp.'^6y. (j^ ^6.
A.. Kskin^s of the Stubble ofCot\\whethtrl'tthahle^'^.'^^^^^^6,
&c.
Kji\:cie€dy»whether fliall-the Parfon or the Vicar have the Tithes
thereof^ P'3^l' §-77«
V\j3X(i-T\ii\t'iyin what cafes payable, ^.^91, ^l"].
PvedorSj hoii^ diflingiujl)'d fi-om Vicars, p. ib6. §.i.
Refufal of a Clerk by a Bijhopybecaufe he could not /peak the Welch
Language, p.276. 5J.36. Once Retuled for Infufficiency, P7ay not
after be received, p. 268. ^. 3 p.
Regifter io.a Bijhops Confijlory, the Office controverted, where c<'gni-
z,able, p. 126. p. 35.. :
?vtoil\iy.Bo0k of a Farijli for Chrifinings and Burials, the Oriq^i-
nal therecfjp.i^<^.^.l^. p.id4,^.io.
Releafe by one Churchwarden, whether any Bar to the Suit of his
Cowpar/ion, p.i-\^.^.i2. p.i(55,.^.i i. p.i6i.5J.2. Releale 0/^
Next Avoidance, made afttr the Church becomes void, is void^
p.aSd.p.y.
Religicn Chriftian, when and -uherefrff planted in this Kingdom,
Rents
INDEX.
Rents, of what kmd may be fued for in the Ecck/iafiical Court ^
. Jp 126.^^.34, Where the Tithe ^ Rents in London are fuahle for^
\ and how ^ p.^yp.^.yo.
i^|5arations ofChurches^whe're cognizahle^ P'i37-.^«3-,4.pi43.5^.io.
p. I 52.5^.25. In what cafe it may be cogmz.able at the Common
Ldi3;/,p. 1 6(5.5^.1 5. Whether within the cog77iz,ance of the Arch-
deacons Vifitation^ p.60.5^.7. Who and whatfaall he charged with
juch ReparationSj andhow^ p.i37,i38,5!>.4.. p. 14.1.5^.1 1. p ij.c.
5J.14. p.i47,i48.p.ip.p.i 5o,§.23.p 1 52.§.26. p.i75.§.4,p 1 5.,
§ 30. p.1^7.^.41. p.i4p.5^.22. Bow the iax for fuch Repara-
tions jliall be apportioned between Landlord and Tenant^ P-I54'
5^.34. Ry whom the Chancel jhall be Repair'd, p. 17 5.^.4. Inhe-
ritances not to be therewith charged in perpetuum, p 144. §.I3,('
Whether a Tax for fuch Reparations w^/ be made by the Church-
wardens only.p 148 ^.20. Hojv to be in cafe of Union of Churches^
p. I4<5.5^.i 5. How in reJpeB of the Fabrick of the Church-^ in di-
fiinHion fom that af the Ornaments thereof p. 154,^.34. Whe-
ther thofe-of a Chappel of Ezle fljall contribute to the Repairs of
the Mother-Church, p.i^6.<^.i6. p.i52.5>.28.p.i 53. 5^.33. p.i5<5,
5i''.5p.p.l 52,55.28. Whether the Land next adjoyningto a Church,
yard jhall repair the Fences thereof p.id^.^. 15.
Relidence, iw what cafes not required^ p. 3 20. 5^.5?.
Refignation, what^p. 281.5^.3. ReHgnation ^on^s^whether good
in Lavf, p. 1S5?. 5J. 7. What words fufficient in Law to import a
Relignation, p.ipi.^.i 3. To whom it may be made^ ibid. How
and to whom the Relignation o/"^ Donative ;w^/ berhade^ p.rpi.
§. 14. Whether It may be made conditionally^ p.2 78.0'.i4. Whc'
ther the Church becomes "void thereby^ before the BijJjop accepts
it, p.ldi.^.ij.
Review, or the Court of Review, or Ccmmiffion ad Revidendnm,
p. 1 1 8.^. 1 5. The Ground thereof p.4.§.5.
Revocations in Law of the Kings i^relentation, p,266.^.'^i.
Right o/'Advowfon, how and for whom that Writ lies^p.6^p.(j.2 2.
Right of Tithe'^, cogniz,able in the Ecclefafical Courtip.i2y.p.^2.
Rogation- week, whence fo called, with the Original thereof p 130.
p. 44.
fyOOts of Coppia-Wood grubbed up^ whether Tithablc^ p.437.
INDEX.
S
s.
' <^cm
Sh.cnkdgCi'what^'whence fo c ailed Jjovj many waysitmtiy he com-
mined •> and the fever e pmifimenti thereofp.')2^j(^c. The Sa-
crilegious were not anciently allowed the SanBuary, p.i 41. 5^.8,
Saffron, what Tithes it ^ays^Tp-^^S. To whom^ whether as Greaf
Tithes to the Parfon^ or f?nall Tithes to the Ficar, ibid. p. 1 p8.
5^. 8. p.3(5i.5J. 2i.p.3(5<5. <J,32.
Salary of a Chaplain., triable in the Ecclefafiical Court, p. ip8.
§.4.
Salt, whether Ttthahle, p.438.
SaiTipfon, whether the firfi Archhijlwp ofYoxkjhywhom efiahlijhed,
p. 14. ^.2.
Sin'^viSixy, the Law thereof anciently, p. 141.5^. 8. Heretofore the
foundation of Abjuration, ibid. Not allowed to Traitors ner Sa-
crilegious ferfons, p.142.^.8.
Saxon Kings, their care for the Gover7jment of the Church of
England, p. py. ^. i. Their z,eal for ereBing and endovnng
of Churches, p. 208. ^.4. How fe'uerely they pumjh^d Adul-
tery, p.470. 5J.4.
^Scotland, when the Bifl)0ps thereof revolted from the Archhijlwp of
York, P.14.5J.2.
Seals of Office of Bifhops, ^c» how to he engraven and ufed* p.
27,28.^5.
Scutcheon or Banners taken out of the Church hy the Parfon, whe-
ther, and for whom ABion Ites in that cafe, p. 161. ^.2.
Seats in Churches,p. 137. 5^.3. p.138. ^.4. p.142. ^.p. p.i 54,155.
^.3^. p.i 47.^.18. p.i4p.5>.22. Ho7V and hy whom to he dtfpofed
^/5P-i37-5^-3.4-P-i4^Mi. p.I5o•5^•22.p.l54•5^.3^•P•I55>I5^•
^. 38. They helong of Right to the Ordinary to diffofe o/', p.138.
^.5. p.i4o.5^,7.p.i42.5^.p.p.i58.5J.ult.p.i57.§.42. p.151.5^.25.
Whether the Ordinary hath any thing to do with Noblennens Seats
in Churches, p.i 5 1. $^.25. p. 1 57. 5J.42. Cufiom may ( as to the
Body of the Church) fix the power of dtfpofing the Seats in the
Churchwardens, p.i 5 1.5^.2 5. The grant of fuch a Seat to a man
and his Heirs, whether good in Law, 'p.\^%.^.^. To whom the
chief ef Seat in the Chancel ^r^p^r/;' helongs,Tp.i '^1.^.7. The cog-
nizance of Seats in Churches properly helovgs to the Ecclefiaftical
Court, p.i 57. 5^.42. Whether he, who having Lands in the? a-
rijh, hut living out of the PariJ}j,he chargeahle with the Repairs
of the Scats of the Parifli-Chureh, p. 1 5 o. § . 2 3 .
Sees,
INDEX.
Sees, or Bijhops Sees, 7v hence fo called^ p. 347. 5J. i,
Sp»ulchies and Monuments in Churches or Church-yards^ how and
\ where the defacing thereof is '^unijhabk^ p. 142. /.p.
Sfi??p, the Law in reference to the lithe thereof, as alfo of their Fa-
'fiure and their PFoolj p. ^3^AS9A^^i3')9^3^o. §.16,17.
Sidcmcn^what their Office is^ p.i 6^,^.6, Anciently called Syiiods-
men, or Teftes Synodales, p. ibid. §.<5. in the Margent.
Signilicavit, what that Writ eught-to contain, p.6^i, 5J.10. v.6z2,
§. 12. p.64p.§.ip. P.535.5J.21.
SWviCxdiXdiythe Law in reference to the Tithes t hereof p.^^ PA^^'
Simon, the Monk of Walden, fuppofed to be the firji Canonilt in
England, p.132.5^.44.
Simovvj ^ whence fo called, a defcription thereof p. 537. §.i. How
many ways it may be committed,\).')3P^')^o. §.5. p,54i,542,§.8.
The penalty thereof p. 5 3 7.5^.1. A Bar in Law to rhe Parfons
demand of Tithes, p.542,§.io. p-548.§.i7. p.55 1. §.25.p.34.
The difference in Law between Simoniacus and Simoniace pro-
motus, p. 538. §^. 2. p. 552. §. 27. In what cafe Simoniacal
Contrails are cognizable in the Ecclefa/lical Court, p. 120.
s^. 17-
Slander, where cogniz^able., p. 516. §,4.
Son, whether he mayfucceed the Father in an Ecclefiaflical Livings
p.258.§. 10. ip.263.§.20.
Spoliation, 72^ Z»<a'f, and in what cafe, and for whom the Wnt of Spo-
liation lies, and where cogniz.able, p.53P p.650. §.24.
Striking in the Church or Church-yard^ how punijlj'd^ p. i^p.^.6.
An hidiBment for Striking /« 5^ Pauls Church-yard^ p. 155.
§•37-
Sioik^the Hijiory of that Jealous Bird, and his revenge on his adul-
terous Mate^ p. 47 5 , 47 <5 . ^ . u It.
Stubble of Corn, whether Tithable^p. 3^4.
Subfcription ?tf r/^e 39 Articles^ what not good, p. 163. .^.8.
Sufficiency or Infufficiency in an Ecclefdfiical Officer, where cogni-
z^able, p.p2,tj3. §.ip,20. #
Suffrage! Btjlwps, aciently invefied by the Ring, without the Staff,
p. 25. §.3. Thetr ufe and office^ p.3053i,§.i i.
Suggeltion for a Prohibition, in what cafe it need not to he proved
within fix months, p. 374. 5^ 5^*
Summoner, what, a defcrtption of his Office^p.^6^']. §. 12, M'^hat
the Canon enjoyns concerning fuch, ibid. What the ancient Canon
is touching Summoner s, p. ^8. 5^. 13. A Cafe at Common Law
againfi a Summoner, p. ibid. §.14-
Superititious 'Pictures m Church-wmdovjs, whether they may be
pulled down Without Licence of the Ordinary, p. 138 §.5.
Supre-
INDEX.
Supremacy, or the Kmgs Supremacy, a defcription thereof y p.I.5^.1.
E(l:ablif)ecl by Statute Laius^ p. 2,3. 5^.2. p.7 5J.1C. The OHi
cf Supremacy, the original andoccajton thereof p, 3,4' ^'3' ^^^
Impugncrs thereof cen/nred with Excomwunication ipfo fa'«2'v^
P4.5>.^, AlJ'erted by King Ed. <5. p.7,8.5^.13. ^//o by QueSn
Eliz. p.8.5i.i4.
Synods, the fe^veral fort t and kinds thereof p.584.^.1. Under
what Archbi^wp of Canterbury they have been anciently held
^erf i« England, p.5po,5cji.5J.7.
Synodale, what^ when and to whom payable^ p.^7.§.l. Whether it
be due without the AB of Vifiting, P.68.5J 2. p.<5p.5^.4. Origi-
nally paid in Vidtualibus, p.68.'5^.3. ^'^'-'^" ^^^ ^^^'^ changed in-
to Mony^ ibid. The divers (ignifications of the word Synodale,
p.7i.J^.8. Fi<^. Procurations.
Synodies or .Synodal, what^ the Ordinary s Right therein^ ^' S'\-'
T.
TAres, cut green, to feed Cattle, whether lithahle, p.440.
Tartarians, their great Cha(lity, they held Adultery Capital,
p.47u5^.6.
Tax for Church-Reparations, by whom to be made, p. 148. §. 20.
p. 1 61, 5^.4.
Templars, dtfcharged of Tithes^ \> ^02. -
Temporalities or Barony of a Bifioop, how obtained, p. 2 7. 5^. 4.
p. 28.
Tenant in Common, in what cafe the fame perfon may be faid to
ybe Tenant in Common with htmfelf, p. i p3 .5^. 1 6.
Teftis lingularis, whether fujfcient proof for payment of Tithes,
.p.362.§,22. vid. P.37S.P.63.P.430.
Theanus, Archbi^ocp oy London in the time of King Lucius, p. 17.
5^.7. He was forced by we InfdelBengiilto fiy into Cornwal
and Wales, p.ibid. 5^.5.
Theruma, what it was, P.351.5J.4.
Timber-Trees, what fiall be reputed fuch, as not Tit h able, p44i,
442. If waficd on a Bt^ljoprick, it is Dilapidation, p. i/^,
177. ^.^,9.
T\i\\ts,what^by and to whom payable '■> when, how of what things \
the manner of Right Tithing '■> what the Setting forth thereof is
according to the Statute, and where cogniZ^able,'p.3^7i.^'^''^^^
fe'veral kinds of Tithes, p.3 ^p.^. I . p.3 5 1 .5^.4. Whence the word
[Tithes]
I N D EX.
TTithes] derived, p. 347. §. i. B/ 'iithom the Church ^England
jJuas therewjth firfi endowed^ihid. They are now at Common Law
^'^mpral Inheritances ^^^.^^ 7,. §.47. Whether they may he leafed
or releafedvfitheut Deed^ p. 358)5. ii. p.3<^3' §'27. Comtofition
thereof for life-) whether good without Deed^p.^72,^.^'^. Whether
fo, if hut for one year ^ or more^ p.377' §• di. p.382. §.8i. The
Right of Tithes in contefi between Parfon and Vicar- is properly
cognizable in the Ecclefa/lical Courts p. 127. §. 42.p.3dp. §.41.
p.38o.§.73. What Tithes are properly due to the Farc/ay,p. ip^.§.8.
Tithes not fet forth) ABions thereon^ p. 37<5. §.55. p 578.§.<55.
Tithes ?<j Tw^o by hal'veS) 7vhether the FariJJioner mup fo fet tk?m
out, p.3^2. §.24. Tithes are of Ecclejiafiical cogniztance.^ P'357»-
§.p. ObjeHions againjl Tithes anfwered^'p.^'^o,^')!, §.3, IVhetber
Tithes are grant able by Copy, p. 43 1 •
Tobacco, what Tithes that pays, p.^^d. § 32.
Tombs ^«^ Sepulchres defaced, where pumfliable, p. 142. §.^.
Trades, whether gain gotten thereby be Tithable,and how,p./^^2.
Tranfa^tion, how it differs from Conipofition, ibid.
Tranllation of Bijhops needs no new Confecration, p.4p. §.8. p. 27.
§.4. p.25?. §.7.
Treble Damages, where, and in what cafefuable, p. 442.
Trees, what, Tithable or not)p.^^2,^c, p.377. §-<^^. To whom the
Ttets growing in the Church-yard do belong, p. 1 5<?. §.22. If cut
down, to whom the Action belongs, p.137. §.3. P'I53* §-32.
Turkeys, whether Tithable, p. 444.
Turves, whether Tithable, ibid.
Ttylc-5ftf»f , and Brick-'X)\t, whether Tithable, ibid.
V.
VAlue of a Bene fee, in cafe of Plurality, whether to he computed
according to the Kings Books,or the very Annual value there-
of p.2p5. §.5. p.2pp. §.12. p.303. §. 2 1.
Venifon, w^/&ff)6fr7/f^^^/f, p.361. §.21. p.454.
Veftry, v^hence that word m derived,p.i62, §.5*
Vetches, whether Tithable, or not, p. 4 5 4.
Vicar, what, the Original thereof, p. 186. §. i. WherSi and in what
cafe he may fue for an increafe of Maintenance, p. ip>p.§. 10,1 1.
Vicarage, ^^ow/ created, p.ipS. §. 6. How it diff'ers from a Parfonage,
p, 197. §.2. In whom the Freehold of the Glebe thereof if, ibid.
Whether a Vicarage endowed may be appropriated, and to whom,
p.ip7. §.3. Whopropsrly is Patron thereof 71'hether the Parfon or
F f f f f the
I N D E X.
th Varfons ?atronfp.i99'^'9-^^^^^^^ ^ Vicarage Perpetual ^may
be diffolved^^, 202.§. 17. In what fen fe a Vicarage may be k-tm-
fared to a Commeiid^m, p,203. 5^ a 8. In what cafe a ^Jcara^e
may determine, p. ipp. 5^. /f. What amounts to an Union^ofthe
Parfonage and Vicarage, p. 1 pp. §. 1 1 .
Vieario deliberando occationc cujufdam Pvecognitionis, what that
Writ imports, p«^48. 5^.15-
Vi Laica removenda, in what cafe that Writ lies^ pt<54^. 5J.5,
V\wt-Trces^ or Vines, what Tithes they yields P^454'
Violent hands laid on one in the Church or Church-yard^what the pe-
nalty thereof, p*lS9i^A^'P-^' P-^55- %.37'?'^9^90.%.i^'
Vi.ritation//:)e power of the Ordinary therein^y.^^'}- 1 8.p,Sp,po.§.i^.
Whether an Archdeacon hath power of Vilitation of Common
Ritrht, p. 63. 5^.7. What number of Attendants allowed by Law
toP'ifitcrs^p.Jl.^.J'
Underwoods, whether Tithahle or not, p. 45 5,456.
Mmon of Churches jwhat, and by whom to be made ^^.16^.^,1. What
amounts to an Union of a Farfonage and Vicarage, p.ipp.5^.1 1.
Unity of PoJJiflon, the Law thereof m reference to 7 it he s i alfo the
Properties thereof p. 383 ,454*
Vodinus Archbijhop of London, flain by the Tyrant Vortigeij.p. l^.
5^« 5-
Vortiger the Tyrant burnt in a Cafiel befiegcd by Aurelius Ambroie,
p.id. §.5» He furrendred Kent, S\x^o%and Norfolk to the Infidel
Hengift,ibid.
Ufurpation of the Pope, how and 7uhen it originally began here in
England, and the progrefs thereof after the Conqueft,^,97,9^'^-i.
p.i 1 1. S>'^- p-i30,&c. ^'.44.
Ufurper, vjho properly ts fuch, p.205. 5^.1. Whether he may gain pof
feffion of an Advowfon from the Crown, p.215. 5^.i8.p.2i8.§.22.
vid. p.2 1p.5J.24. In what cafe an Ufurpation puts the 'very Patron
out ofPoJJeJficn, p.272. 5^.5. Three Writs at Common Law againfi
an Ufurper, and what they are, p.2 p 5, 5^ a.
W.
•1
rii-t
INDEX.
W.
WAges of SewantSj 'whether Tithahhy p. 457.
Wall of the Churchy ardy by "whom to he refaired^ p. 144,
5^. II.
V^iks^Tvhe^frfi [uhjeB to the Archhijhoprick tf/Canterburyjp.17.
Waft Pafiures^ in what cafe Tithahle or mtjp.^'yj.
Wax, or Bees-Wax^ how to be Tithed^ ibid.
Way obfirutted for carrying of Tkhts^ cognizable in the Ecclejiafii-
cal yurifdiBicnjp.^^2. §,82«vid. p.3P4»
Weapons drawn in the Church or Church-yard^ how punijhed^p.i^p^
^^6. IndiSiments thereo,n difcharged,andwhyjp,i^<),^.Z2.Tp,i^'^,
Weild or Woad for Dyer s^ to whom the Tithe of that Dying Plant
belongs^ whether as Great lithe to the Parfon^or as Small Tithe to
?^e/^;V^r, p.3^<5* 5^.32. p.38i« 5^.77* p.457, 458,
Weftminfter-/^^^^^, by whom Founded^p.^2S. 5^.5, When the Reve-
nues thereof were firfi 've^ed in a Dean and Chapter of the Col-
legiate-Church thereof, p.15.5^.3. How it became Originally the
place of Confecration and Coronation of the Kings of England,
p.6, 5J.8.
Whitfon- Farthings, what, and when paid., p.73. ;^.io.
Whore, whether ABionable^ and where ', to call onefo.,p^^ ip*^.p»
Willows, whether Tithable, p.457.
Witneis one Jingle Witnefs dif allowed in the Ecclefajlical Court for
fujficient proof whether Prohibition lies in that cafe, p«i 1 3,1x4.
5^.11. p,ii5.5^'.i2, p.i 1(5,5^.12. p»i<53. 5^.25. p.128. 5^.43.
Witch, or the Son of a Witch, whether tbofe words are Atlionable^
p. 5 2 4. §.24.
Wolfey Cardinal, impowrd by the Popes Bull to retain the Arch-
bijhoprick of Yoxk, and the Abbey of St, Albans in Coramendam,
p. III. 5^.S,
VVoilbu Bijhop of VVorccfler, his refolute Anfper to Ktng William
the Conqueror, p.py. 5^. i.
Wood, the Law m reference to the Tithe thereof, p. 458. to 4<?2.
Computed among the Predial and Great Tithes i by ivhom payable,
whether by the Buyer or Seller '-> ivhether due for fewel jhent in the
Parifuoners hcufe, ibid. In what fenfe 'it may be either Great
or Small T;/-i6e;,p.3'^5,3'^^.5^-32. Whether Wood Tithable at the
Common Law^ p. 372. 5^. 4^- Wood for Hedging and Firing,
F f t f t" 2 li^hcther
INDEX.
whether Tithahk, p.3^P,370. §42. I« ^^^^ cafe the Vicar,may
have the tithe thereof P.3S1. §. 7p. ^•
wool, the Law in reference tojhe Tithes thereof p.19^. tiMf/
§ i^.P.36^.§.32. OfSheef pafiured m divers ?anihes,Y>'A^^^c.
Of Rotten Sheep -whether Titbahle,'^.S^9' |-i 5-
WoictiieV'Churcb anciently a ?riorjif,V'7j'^'^^' .- ,
Xds of Contention in the Church or Church-yard, howfumjhel
Writ^V^ Rir^f of Advowfonjorwhom itlies,^. 214,215- j- '?.
rk Vnf De Hsretico Combiirendo, wk» f^^«» away and ah-
Y.
•Ork, the Origrinal of that Metrofolitan See, p. l^.J.l^. It an-
ciently had\ MeiropoUtan JurifMrn ^er aU the B.{hof^
iwScotlaiid, p. 18. ^.5>.
THE
J
-^-w
*St*
> v:«i» tt^a
»eSas
l^«
THE
APPENDIX.
THc former Tra<^ being only written by way of EiTay, it
was thought expedient by the Friends of the Bookleller
to make fome brief Additions in this Second ImprelTion,
concerning fome things that are of daily life and Pradice
in the Ecclefiaftical Gourts i of whofe Methods and Proceeding
many being ignorant and unacquainted, have call: upon them many
falfe Afperfions, and harfh and unjuft Cenfures : And therefore by
way of Preface I (hall fet down fome few Obfervations neceflary
to be known, and (hew the Original Growth and Decay of the
Canon Law.
(i.) It cannot be denied, but that the Greatnefs of the Canon
Law was in part raifed upon the Ruines oixht Roman Ewfireh
and as the Popes grew potent by their unjuft Ufurpations, fo the
Authority of the Secular Prince did wax weak and decline, efpe-
cially after the Seat of the Empire was tranflated to Confiami-
wple : then by the remote diilance thereof the Pope had the
greater liberty to exalt his Prerogative without Check or Con-
trouU
(2.) In thofe times it was more infenfibly done, bccaufe men
Were then leal'ous for the Propagation of the Chrifiian Relipon^
and having a high Reverence for the Dignity and Worth of the
Clergy^ they would not difpute or contradid: the Commands of
the Bifliops of Rome '■, who were reverenced for Holinefs, and fa-
mous for their great Works of Piety and Charity, and fo their
Decrees did eaiily pafs into Laws that were kept with a Religious
Obfervanfe,
(!■)
The APPENDIX.
(3 ,) And indeed it was juft, that tliofe who had the Govern-
ment of the Church and care of Mens Souls, fhould have a Cocr-4^
cive Power to-inforcc their Admonitions, which other wife would 7
have but fmall Operation upon thofe that wickedly let loofe ^e^
Reins of their Lull: and Paflions. And therefore we hnd that the
Emperors, after they grew ChrilHans, had (o much eonfideiKc in
the Faith and Integrity of Bilhops, that they gave them a Jttrif-
diBion as to good Manners, and other matters that appertained to
the Advancement of Religion, and fo they had their Courts of Jw
■ Code,]. 1. tit, 4. dietfce., whofe Power is treated of in the Code, De Epifcopali Audi-
entia,
(4.) The Laws which were anciently made for the Government
of the Church, confilkd of the Canons of Councils, Sayings of
Di. 19. c. 20. p^tiiprg^ a,-jj Decrees of Popes fometimes with, fometimes without
the confent of the Colledge of Cardinals.
f 5 ) They were hrft coUedled into a Body by Buchardus Bijliop
of Worms, but afterwards more ccmpleatly revived by Gratian a
Duarenus di Monk of Bononia, when Engenins the Third fate in the Chair, into
An D Til^ * '^hich many Errors crept by reafon offalfeand fpurious Copies. And
this made up the lirrt part of the Canon Law, which is called J)c-
A. D. 1572. cretum s which after the Corrcd-ion oi Gregory the Tirteenth was of
Authority in Courts and Schools.
(6^) The fecond part of the Canon Law is called the Decretals^
A. D, 1227. which after four or five feveral Colled:ions,received its lail and purert
Edition in the Time oi Gregory the Ninth \ which although it was
much blamed by Cujacius., was illuftrated with the learned Gloflts
of Hofiienfis^ Tanorwitan,, and many others, and therein are fundry
Cafes which hapned in E«^/<W decided, worthy of our Knowledge
and Obfervation.
C].) The third part of the Body of the Canon Law was colledtd
-A. D. 1294. sf ^he command of Boniface the £i^^f^,which contains thefe Books i
I. Sixti Deer et ahum. 2. Clewtntinaruw. 3. Extra-vagantes' y
Joh. XXII. 8c Communes h wherein are contained a Rhapfody of
many things that tend to the advantage of his Holimfs his Purfe,
v.'ho on purpofe made the Laws more Ihidi: and narrower, that the
gieater plenty of Difpenfations might be granted^
(8.) Beiides thefe we have our Legatine Confiituticns^ which
A. D. 127,6. were in the time of Otho the Legate of Gregory the Ninth-, and
A.D, 1269. q{ Qthcbcn (that was afterwards Vofe Adrian the Fifth) who was
Legate here to Clemtnt the Fourth 5 both thefe are illultrated with
the Comments cf John de At bin. To thefe are joyncd in the fame
Volr.me our Provincial Cenfitutions.m^ide by our own Arclibifl^ops
in their Synods or Convocat!ons,\vhich begin in the time oi Stephen
AD 1222. Lavpon Archkijl^^'p of Canterbury^ and Cardinal 3 and t\\d in
the
The APPENDIX.
^he days of Hinry Chkhley Archhijhof of Canterbury, and Cardinal, ^n. d. 1424,
f ^hefe were colleded and adorned with the learned Glofs o{ William ' **
.;^yVdimod Dean of the Arches^ and aftcrv;ards S///;(?^ of St. Davids
in the Reign of Henry the Fifths
(p.) But when Henry the Eighth did juftly throw off the Ufurped
Tyranny of the Pope, and reftored his Kingdoms to their juft and
undoubted Liberty \ the Cancn Law, and Provincial and Lega-
tine Conftitutions were continued, cjuatenus Confueiudtmhus & 2<H.8.c. i«.-
St-atutis Regni non refugnam nee Prerogative Regie adverfatur. in tine.
" Provided that fuch Canons, Conliitutions, Ordinances and Syno-
" dais Provincial being already made, which be not cotitrariant
" nor repugnant to the Laws, Statutes and Cuftoms of this Realm,
'' nor to the damage or hurt of the Kings Prerogative Royal, fhall
"now ftill be ufed and executed as they were afore the making of
*' this Adl, till fuch time as they be viewed, fcarched, or otherwife
"ordered and determined by thirty two Perfons, or the more part
*' of them, according to the tenour, form and effcd:of this prefenC
*' A<!^ \ which A6t being Repealed in the Reign of Queen Maryj
*' was revived i Eltz,,!.
(ic.) But thisdelign of Purging the Canon Law fell to the
ground, and ended with the life ot the King, and then was fet on
ioot again j>y King Edward the Sixth, who in his Letter doth no- 1 1. Nov. Ao, .
minate eight Perfons, two Bifhops, two Divines, two Do6l:ors of 5 5^**w. 6,.
Law, and two Common Lawyers, bsing part of the Thirty two
aforefaid, to make a model of Laws for the Church, who by the
help of Do'ltor Haddcn Fellow of Nevj Colledge in Oxon.^ (Sir John
Cheeke being alfo fuppofed an Aififiant) compiled that Effay which
is entituled, Reformatio Legum Ecclefia/iicarum^Vi^hichit iswilhed
might have proceeded fb far as to have been ratihed by good Au-
thority.
(11.) So that under thefe Reftridtions mentioned, the Eccle-
fialtical Laws are coniequentially confirmed by Ad' of Parliament,
to which were added thofe excellent Canons of King James h A.,D(im.\6d^^
mofi: of which are but Repetitions of thofe in Lindwocds that
ib by that New Publication they might have the better and ilrid'er
ioblcrvance. And then the Rubricks of the Common Prayer Book
are of undeniable Authority, that being confirmed by Ad of Par- 14 Car. 2*
liament,
(12.) The Great Governor in the Church under the King Is
the Archbilhop of Canterbury, who hath the Power of Difpen-
fations formerly ufed in the Court of Rome, committed to his
difpofal by Ad of Pailiament, and under him the due execution 25 Ken. 8. 2i^»
of Ecclcliadical Laws are intruded in the Bilhops and their feve-
ral Officers, that are to make infpedion into the Manners of
each-
The APPENVIX.
each particular Dioccfs h which are, the Chancellor^ Cewmijfaries^
Archdeacons, Officials and Deans Rural. In each Cathedral ther«K
is a Dean^ who is Archifresbyter XJrhanm, who is to govern th'^'
Prebendaries and other Officers i but ftill as Pcrfons fubjed to, not
in the leaft exempt from, the Epifcopal Authority and InfpeiSrion i
and in cafe of any Gravamen an Appeal is legally directed to the
Bifhops Contiftory.
frscidmcy. (13.) And here, by reafon of the feveral and frequent Com-
mixtures of Ecclefiaftical Perfons , who have different Offices,
Dignities and Degrees, fome may poilibly through Ambition or
Ignorance difpute the quefUon of Precedence^ to the difturbance of
that Peace and Decorum which ought to be kept amongft the Mem-
bers of the Church j and that every man might know his own pro-
per place and iiation, it is not inconvenient to fet down after what
manner the Eccleliaftical Laws have determined this Point. The Ca-
non Law hath many difputations of thefe queftions, and there arc
(everal decilions of thefe Controveriles that have rifen between Eccle-
fiaftical Perlons, which hapncd by reafon of the frequency of their
Synodical and ProceiTional meetings, and the offending Party that
breaks the Rules of Order, may ^and ought to be punifhed by the
Diocefan, if he contemns his Admonition herein,
T^nchanuUofs d^j fhe Chancellor of the Diocefs is generally reputed the
Aoth* de Pra- ^^^ honourable, as reprefenting the Bifhops Perfon, and is therefore
tis5cap.<5.nu 5. called his Vicar-General i Vicarius Generalis Epifcopi^ d^ Officialis
L.Vicar.D. de TrmcipaliSy qui Vices gerit Epifcopi. Et dicitur JpeBahilfs, qua
Legibus. media eH dignitas inter illufires ^ clariffimos.
Barbcfe AUe. ^ ^ ^ j jj^j^ Office is fo necelTary to fupport the Epifcopal Power,
C.'l. l.'t!^38. that in cafe a Bifhop fhall negled to difpofe it, {'SixTbo. Rydly faith)
the Archbilhop may nominate and impofc one upon him. And Ze-
Zech.2.23.§.3. chins de Republ- Ecclejiafiica faith the fame, I'enetur Epifcopus Jibi
Vicariurn Confiituere^quo deficiente Arcbiepifcopm potefi Confiituere.
(16.) He hath the fame Confifbry with the Bilhop,as the Cano-
Lindw. 1.2.1.4. nifts do all prove in their Writings. Sbrox,z>im de Officio Vacarij Epif-
di jeqnift. c.jre- copi pofitively affirms it i Vicarius Epfcopi facit idem Conjifionum
quen.v. Ofjicia.- ^^^ Epifcopo, d^ dicitur illi affiociart in JurifdiBionej Reprefentare
Sbroz.I.2C2< Reverentiam Epifcopalem^ nee datur medtr/s gradus in Diccceji
Navar. lib. i. inter Epifcopum d^ Vicarium,t anquam tribunal unim^jit tribunal at'
Con. 7,.dt Ma.- terius j perfona uniusyferjona alterius'-, unumfit eorum Caput, unum
jomjff & 0- Corpm, unmn Agens,C^ una Aclicjd^ tanquam Epifcopus honor andus
in loco^ Seffione .j&'c^——Dicit RraeminenXiam Vicarij locum habere
tarn Epfcopo prafente quam abji nte^ d^ Inepttim effe ilium mihi An-
tecelkre in quern Jtrs dicere poJ]'um,feu adfit-^feu abjit Epifcoptts. Et
eum offendens dicitur ipfum Epifcopum offejtdere. Idem 1. ;. qu. 60.
Pr^cedere debet inEccleJia quamltbet dignitatem frimam pojt Epif-
copum, Vicarim
The APPENDIX.
^Vicarius non cenfetur exclufm faBa mentione de Ep^feopo, fed 2ech.c. 22.
cjitinetHr fub Epifcopi nomine. Habet eandem poteflatem quam Sbroz. lib. 2.
pabetEpifcopuSf & idemTribunale &" ajj'ociatus ei in JurifdiBione, ^:43' nU'29«
=rft^t is accounted among the Camnijts the greater Dignity, which J*^'* ^'^ ^"'^
hath the higher Adminiltration and Jurifdidrion : fo that the Vicar *
General that manageth the" whole Concerns of the . Diocefs under
the Bifhop, doth juftly claim Precedency. And fo in the Canons of can. 122 1 24,
King James they always run in this Oxdet^Chancellor, Commijfary^ 125,128,13$.
Archdeacon-i Official.
(17.) The Precedency is exprefly given to the Chancellor before Barbof,A11.54.
the Archdeacon by all Writers, becaufe the Chancellor repreients §• MBr
the Perfon of the Bifliop, and hath the greater Jurifdidion i and R^buftus^* ^
an Appeal lies from the Archdeacon, or his Official, to the Chan- §^ 5, ' ^ ^''
cellor of the Diocefe. * Anton, de Vratif, de Jurijd. Epifcopi, dicit, Jacobat. lib. i.
Improbatam Confuetudinem Jure Di'vino., Naturali, Canonico c^ de confiUAn.i.
Civili per quam Archidiaconus prafertur Vicario Epifcopi^ ^ quod t'^I' -
potins dicitnr Fefiis quam Confuetndo propter Ambiticnem^ 'vecor- sbroz. lib. 2.
diam^ftultitiam a qua dicit ur pracejji{fe. Of this Opinion are Sbroz. cap, 25.
Tanormitanfiaffanaus in Catologo Gloriae Mundi,liarbofaiRebuffiuSj Callansus,
Zechius^ Card. Jacob at ius^Navar. Felijms^ HoJlien/iSjLindw, Gra- P"'4'Cod i .
tianusy d^ Doctores communiter omnes* '^
(18.) By the Canon Law a Lay-man was excluded the Office 37 Hen. 8. 17.
of a SfMritual Judge ; but by ah Ad of Parliament at the Reforma-
tion it was indulged to Dodors of Law to cxercife all manner of
Ecclefiaftical Jurildidion i and there are at this day feveral eminent
Lay-men Civilians at Dottors Commons ^ that are an honour to thefe
Preferments i fomc few places being in the hands of Clergymen
that were bred Civilians in the Univeriities.
(ip. The Archdeacon is a fubordinate Judge, his Place is Infe- ArchdttLCons
rior to the Chancellor. Archidiaconus proximus pofi Epifcopum ^ Place,
ejus Vicar turn Jit minijler Domini^ (mih Haddon m his Reformatio Pag.45.c.5.
Legum. To him all others of the Clergy of what degree foever,
do owe Subjcdion Ratione Adminijtrationis & Officij. And 'tis a Lindw. de Vi-
Queftion in the Provincial Conftitutions, whether the Archdeacon ^'^ ^ honefiate
be not above the Dean. Ho(tienJis will have the Archdeacon to be Yer! Dican,
Majorem ratione JurifdiBionis extra Ecclefiam : Sed infra Eccle-
fiam quoad Ordinem^ he is Minor. But this was to be underftood
when the Archdeacon was not a Presbyter, for if he were, then Tam
Ratione Or dink quam JurifdiBionis pracelleret Decanum. But he
concludes , In his omnibus confideranda efi Ecclefiarum Confuetudoy
which gives the Precedency in his Precinds to the Dean i in other
places of the Diocefs, if 'tis granted, 'tis rather ex honore quam
debito.
Ggggg (20) But
The APPENDIX.
(20.) But theC^nons and Trebendaries of the Church,be they^of ,
l?!c7 what Degree foever, are to give place, as being Inferiors to yhe
y^rchdeaccnM reafon of that Power, Office and Jurifdidion whicf
he is intruded with. As fuppofe an Archdeacon be but MalM^Y
Arts, and the Prebendaries of a Ghurgh be Dodors of Divinity,
Law or Phyllck > yet they are inferior in Dignity and Place, and
ought to allow the Superiority in all places h for if it were otherwife,
the Archdeacon would receive a diminution of that Reverence and
Fvefped which belongs to him as a Judge i and it is abfurd to af-
firm, that any Clergy-man fliould take place of him that by reafon
of his Jurifdidion hath Power and Authority over him : for Digni-
ties in the Church are more ancient, and are juftly preferr'd before
the Degrees of the Univerjity,
(21.) What Obedience the Minor owcth to the Major, isfet
Lindw. lib. I. down by Lindivood^ Re'verentiam debet minor major i^ ut 'viz,.Jibi
tit. 14. c. Pre/, ^jji^^^at, locum Trimum in fedendo, vel ftando ^ ^el eundo fibi
VeTi« vinuu cedat S mandatis etiam majoris honefitSy dum tamen Admmifira-
obeditntia. tionem 'vel Officium m loco illo habeat, farere tenetur \ non tamen
ipfius Judicio, nift JurifdtBicnem in iffum habeat. This flight
Deijgnation may give fome light to men of ingenious tempers, to
prevent Quarrels and Ammolities by rendring Honour to whom it is
Seld. ritksof due : And the Great Selden faith, That fuch Reafons are urged by
H9«o«r, ch: II. theCanonirts in the ranking of DignitiesyZS may be applied to meii
in Temporal Concerns.
man Rural C22.) The Dean Rural fucceeds, who was anciently called Jrchi^
E^zT de Officio presbyter \ he is appointed by the Bifl^of and Archdeacon to conti-
Archid. y^^^ during pleafure. Non eft perpetuus fed amoti'vus ah officio ad
Conft. Othoo. ^^^^^^ Superlris cujus eft Mmifier. Tlieir Office is to give an ac-
Yc'?. lZ!^ni. ' count to the Vifitor of the Lives and Manners of thofc within their
Precinds, and to convocate the Clergy within their Deanric?, when
the Ordinary (hall appoint i or to give InduBian in the Abfence of
the Archdeacon. They are in fome Diocefles fwoin to certain Ar-
ticles ■■> this was anciently ufed, which (hall be fubjoyned, that fothc
whole Duty of a Dean Rural may be undcri^ood.
Articles mini. (23) 31 A.B. t!o Stucac, tHiigeiitlp aiits fmtljfullp t(\
find ti Deans txZtiXtZ tljC C>fflCC Of Dean Rural iDttfjin tfje Deautp Of
^""'' c. I. 31 tutu tsiiigcntip anti faitljfuilp ejcecute, 02 caufc
to be cifeeutetJ, all fuel) p?oce(rc0 a^g tljall U uiccceeD
unto me frommp %m 15iajop of E. o? W ^fficecjJ c?
^inifteriS) bp W ^utljo^itp. 2, item, 3 UiOI giije Dili*
gent attendance, bp nip leifoj mpDeputp, ateuerp
Conftaoip
The APPENDIX.
Canfif{o?p-CGurt, to fie fioJtseii (jp tfje fatti Ecberenn
.;at6et lit <2potJ, o| W Cfianccllo?, a^ toell to return
t«*5P2oceire0 aiEifljall lie ftp me o?mp Deputjjejcecuteo,
ajs alfo to teceiije otljerjs, tijeu tutta me to be Diieceeti*
3. Item, 31 iDill from time to time, tsurtng mp faiD Df*
fitzMwnil^ enqutrejann true anfo^mation giijeimta
tSefaiti Eeuecenti jfatljec in (J^oD.oHJi^CijanceUo?, of
all t&e Bamess of all fuel) perfons luitljiii tlje faro Dea-
itatp of c. ais fijall be openlj? anti pubUcklp notcti anD
tiefameti, o?beljementlpfurpecteu of anp Cucb Crime oi
£)(fence, m 10 to be puuidjco o? tefo^meo bp tlje ^utljo^
ritp of tfie fain Court* 4- item, 3 ujill Oiligentlp en-
quire, anti true information giije of all fucb perfon?
anntfieir Bamejs, aisno anminiffer anpDeaumens
<^o0n0, before tbep babe p^obeD tbe 2:*LIill of tbe Ceda*
to^ 0? taken letters of ^bminiflration of tbe oeceafeD
SlnteffateiQ?. 5. item, % tuill be obebient to tbe Eisflt
Eeberenu f atber in <^ori, J. OSifljop of N. anb W
Cfjanceilo?, in all ftoneff anb latoful Commanb^ , nei--
t6er mill 3i attempt, bo, o? procure to be bone 0? at*
tempteb, anp tbing tbat (ball be preiubicinl to fjisi
aurigibictioii, but U)ill preferbe anb maintain tbe fame
to tbe utter moft of mppoiuer*
C24O By one of the Coullitutions oiOtho, the Dean Rural is p^^^ jf^^^ds
forbidden to meddel with the Cognizance of Matrimonial Caufes j vomr.
and by another he is commanded to have an Authentical Seal : ConlV. Othon.
whiclh (hews, that anciently there was fomewhat of Jurifdidtion cum mnfohm.
intruded with them-, though now theie is nothing -left but their ^Q^onimraini-
Name, their Power being no more than what the Bifliop pleafeth lionm.
to employ them in.
C25.) For the Government of the Church, and Correcfiion of 0/ Fl/itations,
Offences by the aforefaid Officers, Vtfitat'ions of Parithes and
DioceiTes were allowed, that To all poUible care might be taken
to have good Order kept in all places of his Diocefs. The Arch-
bijho^ of Canterbury hath right to Vilit once in his time, when he
pleafeth. The Bijl^^^ of every Diocefs clairaeth his Vrimary and
Triennial Fj/lrations, by himfelf or his Vicar-General. The Arch-
deacon is to Viiit every Two years, unlefs he be inhibited by his
Superior i and then, when the Superior Viilts , the Power of
"■e Inferior is always fuperfeded and ccafeth, and the Profits of
^*c Jurirdi(ftion are devolved upon the Officers of the Viiitor,
G g g g g 2 As
8 The APPENDIX.
As .when the Archbijhop Viiits, his Vicar General hath the Income
during the time of the Inhibition , and when a Bifhop Vifits Hk
Diocefs, his Archdeacons and the Peculiars are Inhibited that mn
and all Trohates, Adminifirations^ and other Judicial Adts are ^ne
before the Chancellor of the Diocefs : Which Vifitations though
once queftioned as Illegal, were allowed of under the hands of all
the Reverend Judges, as foUowcth.
Primo Julij, 1^37.
May it pleafc Your Lordfliips,
( 2<?- ^ A Ccording to Tour Lordfhip Order made in
Certificatf ^ "^ HU Majejiies Court 0/ Star-Chamber, the
concerning j 2^^ ofM^Y laL vpe have taken Confideration of
Ecclcfiaftical 1 n^- t i ' nl' ' i J
Jurifdiaionc ^he F articular s wherein our Ufinions are required
by the [aid Order 3 and we have all agreed^
That Procejfes may IJfue out of Ecclefiaftical
Courts in the Name of Biftiops j arid that a Pa-
tent under the Great Seal, k not necejfary for the
keeping of the f aid Ecclefiaftical Courts^ or for
the enabling 0/ Citations, Syfpenfions, Excom-
munications, or other Cenfures of the Church :
And that it is not neceffary^ //;^/ Summons, Ci-
tations,©^ other Procejfes Ecclefiaftical in the f aid
Court s^or Inftitutions or Inductions to Benefices^
or Correction of Ecclefiaftical Offe?ices by Ce?ifure
in thofe Courts, be in the Kings Name^or with the
ftyle of the King, or under the Kings Seal 5 or
that their Seals of Office have in them the Kings
Arms 5 And that the Statute 0/ Primo Edvardi
Scxti, cap. 2. which Ena^edthe contrary. Is not
now in force.
The APPENDIX.
; We are alfo of Opnion , That the Bifhops,
^rchdeacons, and other Ecclefiaftkal Perfons^
viay ksef their Vifitations, as Jifually they have
do7ie^ without Commijfion under the Great Seal
of England fo to do,
Jo. Bramftone, George Croke,
Jo. Finch, Tlio. Trevor,
Humfr.Davenport, George Vernon,
William Jones, Ro. Berkley,
Jo. Dinham, Fr. Crawley,
, Rich. Hutton, Ric. Wefton.
Inr oiled in the Courts of Exchequer^ Kings-
Benchy Common Pleas 5 and Regiftred in the
Courts of High'Commiffion and Star-Chamber.
fiy.) Upon this Certificate, penned with fo great deliberation
and hAvkt^Ktng CHARLES the Firfi fet forth a Proclamation
the Eighteenth of Augufi^ in the Thirteenth year of his Reign-, to
declare. That the Proceedings of the Ecclcfiaftical Courts and
Minifters, are according to the Laws of the Realm.
(28.) In thcfe Vifitations the Churchwardens and Sidefmen, are
to give an Account of the State of their Parifh by virtue of their
Oath, which is now allowed even by the Common Lawyers, and :
by a particular Confultation with them and the Civilians^ the fol-
lowing Oath was penn'd, as allov^ed to be ufed in all Diocefes.
^oii r^nll €)Uieat:, tctilp annfaitfifuUp to tttmtz tlje Tk chunh-
TiSitz of a COurcfetuameit tuitfjiit pout pacittj, anD '"''^^''' °'^^*
acco?liing to tfie bef! of pota MM anti kncMetise w
fent fuel) €611100 anti perfons, aj3 to pout ItnoMeoge
ate p^efentable bp tftc latDi5 Ccclefiaffical of iW
ElcallH* So help you God, and the ^Contents of this
Book.
foil
ro The APPENDIX.
(29.) f 0U fljall ^lucac, tljat poti tuill be afliffant to tlje-
T^e sidtfmans €\i\mW^tm\$ 111 tlje £j:ccution ef tljeir Office, fa fac^^
^'^^- aia; ftp latt) poll ace iJOUnH* Sq help you God. tefnt
So that all probable care is taken for the maintenance of good
Manners and Religion i and if the feveral Officers are defedlive in
their charges, the Ordinary is no ways to be blamed. The Church-
Can. ii5. wardens are bound to prefent by the Canon at leaft twice every year,
Eafier and Michelmas \ and in fome Dioceffes, as Peterborough,
OxfordyGlocefier, 8ct. (according to the Old Canons) they keep a
Vernal and Autumnal 'Villtation at Michelmas , for the fecond
Bills of Prefentment : And in cafe of negled or carelefnefs in thefe
Cau. 113. Officers, the Minifter may prefent according to the Law, that what
Can. 85. is amifs may be reformed.
churchTvardens ^^q-j ^hovc z\\, Churchivardens md Quefinjemtc to maintain
to ma^i mts. ^^^ Church in fufficient Repair, which is to be done by a Tax
made by the Churchwardens and Pariflneners after publick Notice
given -of the Time and Place where they meet, and thofe that refufe
arc to be fued in the Spiritual Court only. And for the better di-
re(^ion of Perfons concerned, here followeth the particular Conful-
tation of the Learned Civilians about Church-Rates.
inftruftioosof An Order a?ic/ Dire5iio?i jet Jown by DoSlor King,
for' m'akint ^^^^^ Lcweii, DoSlor Lynfcy, Do^or Hoane,
^^^^•' DoSior Sweite, Do^or Steward a7id Others,
DoSiors of the Civil Lavps^ to the Nuviher of
Thirteen in alU ajfembled together in the
Common 'Di7iing'Hall ofDoftors Commons
in London, touching a Courfe to be obferved
by the Ajfefors to their Taxations of the
Church and Walls of the Church-yard of
Wrotham in Kent 5 and to be a^f lied gene-
rally, ufon occafio?is of like Reparatioris, to
all Places in England whatfoever,
I'r IT? Very Inhabitant dwelling within the Parifh is to be charged
X_y according to his ability, whether in Land or Living within
the fame PariQi, or for his Goods there j that is to fay, for the belt
of them, but not for both. 2 . Every
The APPENDIX. n
2. Every Farmer dwelling out of the Parifli, and having Lands
^ and Living within the faid Pari(h in his own Occupation, is to be
|_ charged to the value of the fame Lands or Living -, or elfe to the
^^\alae of the Stock thereupon, even for the befl, but not for both.
3. Every Farmer dwelling out of the Pari(h, and having Lands and
Living within the Parifh in the Occupation of any Farmer or
FarmerSjis not to be charged , but the Farmer or Farmers thereof
arc to be charged in particularity, every one^according to the
value of the Land which he occupieth ; or according to the
Stock thereupon, even for the beft, but not for both.
4. Every Inhabitant and Farmer occupying Arable Land within
the Parifh, and feeding his Cattel out of the Pariffi, is to be
charged with the Arable Lands within the Parifli, although his
Cattel be fed out of the Parifh.
5. Every Farmer of any Mill within the Parifh, is to be charged
for that Mill i and the Owner thereof .( if he be an Inhabitant)
is to be charged for his hability in fhe fame Parifh, befidcs the
Mill.
6. Every Owner of Lands, Tenements, Copyholds, and other He-
reditamentSjInhabiting within the Parilh,is to be Taxed according
to his Wealth in regard of a Parifhioner, although he occupy none
of them himfelf i and his Farmer or Farmers alfo are to be
Taxed for occupying only.
Memorandum^ That the Affeflbrs are not to Tax themfelvcs, but
to leave the Taxation of them to the refidue of the Parifti.
The Reparations ofthefe "Parcels enfuing^ "wtth their Affurtenances,
are to be accounted Cburch-Reparattons > and are to he horn, not
only by the Parijhi&ners^ hut alfo hy all that occupy any Lands y
Tenements^ or FoJJejfJions within the Tarijli where the Church if
to he repaired.
1. The Walls of the Church, Steeple, and Church-yard of Freeftone,
or Brick.
2. The Roof of Timber, with Latches, Pegs, Nails, Dogs and
Bolts of Iron.
3. The Windows of Stone or Brick.
4. The Covering with Lead, Latches, Tyles or Shingles,
5. The Floor of Stone, or Paving-Tyle.
6. The Doors of Timber, with Locks, Keys, Pviders, HookSj
Nails*
7. The
12
The APPENDIX.
7. The Furniture of the Steeple, Stairs, Floors, Bells, Wheels,
Ropes. ^ f
8. The Pulpit, &c. ^^f
j>. The Pews or Seats, not made by any Private Perfon.
•
* Thefe following are not properly*Church-Reparations \ but they are
the Duties belonging to the Charchy to be performed ratable by
any Inhabitant of the Tarijlj.
1. The Confimunion-Table, with the Covering thereof.
2. The Communion-Cup.
3. The Bread and Wine for the Communicants.
4. The Books.
5. The Surplices.
6. The WaftiingoftheCommunion-Cl«thes.
7* The Candles.
8. The Clerks and Sextons Wages.
p. The Expences and Fees of the Churchwardens and Sidefmen at
the Vifitation»
C32.) The Churchwardens, who arc Guardians of the Church,
Terriers, arc alfo to take care that true Terriers be made of the Glebe-Lands,
Meadows, Gardens, Orchards, Houfes, Stocks, Implements, Tene-
Can. 87; ments, Cuftoms of Tithing, and Portions of Tithes lying out ot
their Parilhes, which belong to their Incumbent h which being
(igned by them and their Miuiftcr, ought to be laid up in the
Bilhops Regiftry for the good of Pofterity, and it may be convenient
to have a Copy of the fame exemplified in the Church-Cheft.
Augm^ntati- (33.) By a late Ad of Parliament concerning Augmentation of
**°*- fmall Vicarages and Curacies, it is enaded. That all and e'uery
Augmentation of what nature fiever, granted, refer'ved, or agreed
. 29 Cir, 2. to be made payable^ or intended to be granted^ referved^ or made
payable fmce the fir Jt of June in the Twelfth year of his Majefiies
Reign, &c. (hall for ever hereafter continue and remain. Which
Grants are to be fairly entred in Books of Parchment, to be kept by
the Rcgifter of the Bifliop of the Diocefs. See the A^ at lage.
c
C34)
The APPENDIX. j^
(34.) Although by the Law the whole Dioce/s is fubjecfl to the Qtp ,-
<5are of the 5//kp, yet fomc places by an efpecial Priviledge, Grant, ''" ^'^^^'
^ox Compolition, claim a kind of Jurifdid:ion in theoifelves, and
^m^e are called Fecuhars. Their Power is limited to fome certain
Parilhes and places, at firft exempted by the Pope for his Advantage jr^^ ^
only •, Their Jurifdidtion is various, more or lefs according as it was de Jure* Abba.'
firft indulged, it is generally Accumulative cum Epifcop^ orPri- turn, difp. 19.
t/ative. ^•^'
C35.) If their Power is acquired only Accumulative cum Epf- peculiars of
copo., then they have only Archidiacoval Jurifdi&;ion at moft, and ArchiAiaQond
the Bi^o^ hath a Concurrency with them. And the Power of Pro- '^ovptw
bate of Wills and granting Adminiftrations, is as well fixed in the
Ordinary of the Diocefs as in the Official of the Peculiar ^ it being
at the eledion of the Parties to go to which they pleafe j only in
the Metropolit teal Vifttation^ or the Primacy and Triennial oi the
Bijhoft thefe Inferior Courts are inhibited, and their Power ceafeth.
When the Parties deceafed have not Bona Notabilia out of the Pre-
cindts of the Peculiar^ihtn the Adminiftration is good, if commit-
ted by the Official of the Peculiar or Chancellor, or CommiJJ'ary of
the Diocefs, Vik\\d\ of them fhall firft Cite. But if there be Bona No- Jo. And mfti-
tabilia out of the Peculiar ^ but not out of the Diocefs^ then the f«/?i,Immol. &
Caufe doth folely belong to the Superior Court of the Bi^of^ and j''^' *" 5* ^"i
not to the Judge of the Peculiar. This Power of Exempt places cZordinaW'
is ftated at large by the Canonifts.
C3<5.) If their Jurifdi(ftion ht 2iC(\u\xtd Privative fKc\\xA'm^tht piculUrsthat
Bifhop, it ought to be cxpreffed in the Grant or Compofif ion i for have Epifcopd
Vijitandi Jus alicui concejj'um mn cenfetur conceffum Privative ^o^^"^'
quoad Etiifcopum^ nift expreffe diBum Jit quod Epifcopus non pcjfit
Viftare. So that the Judges of fome Peculiars that have Epifcopal
Power are totally exempt from the ordinary Vifitation of the Bifhop,
and only fubjed: to the Metropolian : For the Archbijhop oi Canter- co. In(l.part4.
hury hath divers Parilhes within the City of London and other Dio-
ceflcs, for the Government of which he- hath his Court of Peculiars,
Thofe places only that have Epifcopal Jurifdidtion can grant Licenfes Can. iot. &
for Marriages, for fo it is enaded by the Canons, that Licenfes (hall ^°^"' ^"^*
be granted only by fuch as have Epifcopal Authority, and that exer- ' * '^^^'
cife of Right Epifcopal Jurifdidion. And where any Peculiars that
are only exempt from the Archdeacons Vifitation pretend to fuch a
Power, it is an apparent wrong and incroachment upon the Rights
of the Chancellor of the Diocefs, to whom that Power is only
granted. " Thefe things following, faith Panormitan^ do properly -panor. in cap.
" belong to the Confiftory of the Bilhop. Cognitio Caufarum Ma- Accidmibus
trimonialium ficut & Publico Posnitentia Impclitio. ac Indulicn- ^' ^^^''' ^^'^'
tiarum conceffio funt proprie Dignitatis Epijcopalis. 2
Hhhhh (37.) *^'
14 The. APPENDIX.
, r r (3 70 And 'tis the great intereft of the Ordinary to have a
Vecklilrs* watchful eye over the Courts and Proceedings of thefe Peculiars.,
for they often abufe their liberty to excefs, and claim a larger ,
Power than belongs to them either by Law or Compofitiou, wb^
being at hrft unobferved or pafftd over by a too kind Connivance,
they at laft claim a total exemption, and their Ufurpation paiTeth
Extr de Pri- j^to Right, whereas there was no fuch large Privilcdge intended in
vilegijs, & eo- ^.|,^jj, Qiiginal Grant. And thefc unjuft Pradices are provided
' againft (as being feared) in feveral Titles of the Canon Lavj. And
it would be happy if they were all thrown up and only fubjedted to
the JuriCdidiion of the Dlocefan*
_ . C380 By the Canons it is decreed, that all thefe P^c»/i^r C(?«rfx
of the whs of ^^i^ once in every year exhibit into the Publick Regiftry of the
ViCkiitLTs. Bijhop of the Diocefs., or of the Dean and Chapter., under whofe
JurifdiAion the faid Peculiars are, every Original Teflament by
them proved, or at leaft a true Copy examin'd and fubfcribed, and
Sealed by the Peculiar Judge and his Notary, upon pain of Sujpen'
Jion until it be performed.
0\ seqve(lrA- . (39-) When a Living becomes void by the death of the Incum-
tions, bent, or other wife ; the Ordinary is bound to fend out his ^e^^ner
firation, to have the true Cure fupplied, and to preferve the Pro-
fits for the ufe of the SuccefTor. Heretofore the ^;]l;tf/j laid claitB
to the Profits of every Living daring the Vacancy, and then they,
oftentimes delayed to give Inftitution, and protradled the time
that they might have the longer Vacancy. But this was forbid by
Conil.otboban. one of the Le^^?/»e Couftitutions, and afterwards confirmed by an
c. Eccltfixrum, j^^ ^^ Tarliament^ which faith in the T^tle, Frmts taken during
the Vacancy cf a Benefice^ jljall he refiored to the nexf Jncumhent.y
"iyhofe charge for the Fir (t- Fruit s ^oall begin from thefh-fi Vacatim*,
So that now, dedudf ing for the Service of the Cure, which ought to^
be moderate and appointed by the Ordinary, and paying the
charges of the Sequefiratorsj the overplus belongeth to the new
Incumbent.
(40.) Sometimes the Fruits and Profits of a Living which is in
Siqutfiration controverfie, either by the confent of Parties, or the Judges Au-
D. 16. tir. 2. thority, ^xtfecjuefired and placed for fafety in a third hand. And
1. 5. & 17. thus when two different Titles are fet on foot, the Rights arecare-
Lind.\.2.t\t^. fully preferved and given to the Conqueror that overcomes by
c.frequens. Law.
Seaii'Hration (4*0 Sometimes when the Houies and Chancels that the In-
for Dilapidnti- dimbent is bound to Repair, are ruined and ready to fall, if after
ons. due Admonition they fhall delay to begin to amend the fame with-
Conft. othabon,. in two Months, then the Biflwn of the Diocefs, that time
<:,lm^r,bm.- ^j^p^^j^ ^^^jj y^,^,^^,^ ^h^ p.^j^S ^^^^ Tithes till thofe dtfe
being
eds are
amended >
The APPENDIX. 15
amended i and though the Admonitfon proceed from the Arc^-
"deacon^ yet it appears by the Text, that the -S//7j(?^ only hath the
*' Pf^wer oi^Sequefiration.
^^•(42.) Sometimes for w^^kdioi fervingthe Cwe, or upoii the siqmflmionto
Kings Writ to the Bifl^op to fatisfie the Debts of the Incumbent, f^^'^f the cure,
the Profits of the Living are to be Sequefhrcd: In' all which cafes '""Z^'" ^«^f^»
the Sequeftration ought to be publiflied, that the Perfons concerned
may know how to pay their Tithes i and the ^itti\. place for the
performance thereof is the Parifh-Church. And then, thofe that
hinder the execution tliereof incur the Penalty of the Law, which
is this. Violator es Seqitefirorum in Cafibm a Jure prmijjis inter- tiniXxh,^. i.^.
■pojitorum^pfi- Vublicationem debitis loco df tenifore faBam^majons ^' P^cqueiis,
Excommunicationis fententiam incurrunt. Of all which Seque'fira- Y^'- ^"^ P'*"^^'
iionsy thofe which are intruded are ufually bound by Bond and Oath
to render a true and jutl account i which done, the Decree of Re-
laxation pafltth under the Chancellors Seal.
(43 0 To defend the Ec:c/f/F^/?^c^/ Power, and to controul ob- ^r , , ,
ftinate Sinners and contumacious Offenders, the Cenfures of the cenCures.
Church were introduced, which are inflided according as the Of- Extf 1. r. t^r.
fence is greater or leffer i fometimcs by the Law it felf, fometimes ^j '^^Riprmen-
by the Sentence of the Judge.- Thefe are reckoned by Lindwood to ,'^^j j ^
iri r r^ n r r- ■ J i in Lma. de Con-
be 01 three lorts, Sujpenjio^ Excommuntcatto^ & Interdictum. fuetud. c. Sta-
C44.3 Sujpenjion is the proper Punifhment of an offending tutum^vtr.ctfi'
Clergy-Man, Su^enjio efi Cenfura cjuadam Ecclejtafiica^ qua pr- ^"^'^'
fona Ecclejiaftica impditur ne exerceat funtfiones fui Beneficij 'vel i^'*^P^^P'^^'
Ordinis. It is either ab Officio vel B€neficio\ the firft is the punifli- nu. 151.'
ment for Contumacy in not appearing upon lawful Summons, the Can. 122.
fecond for higher Crimes.
' (45O This Cenfure is inflicted ab Homine vel Jure^ by the Dc- Su^penf. aboffi-
creeof the Judge or the Law, and then for a greater or fmaller ^'"^^^"^J^f^'^j
Crime •, if for a fmaller fault, then it is only ab Officio •, but if a c!q^^\^^^^il
Clerk that is fufpended ab Officio, (hall contemn the fame by ferving nent. ver. Suf-
his Cure, notwithftanding his Sujpen/ion, then a feverer Cenfure fol- pen/tones,
lows, Fro fujpenfo publice denuntiatm,fi interim Immifceat fe divi-
nis^ [ecundum fententiam DoBorum efficitur Irregular ps^ Or if a
Clerk that is fufpended ab Officio^^zW contmue fo without fubmilli-
on or feeking to be reftored, then he may be fufpended a Beneficio Lind. ibid.
alfo, fubtrahi debet Beneficium^ quando (ic fu/penfus efi in mora
fetendi Abfolutionem. By the Canons of King James if hisContu- Can. 122.
macy continues, he is to be Excommunicated, and after forty days
he is deprivable for Incorrigibility*
C46.3 For feveral Offences the Law doth fit^end a Clergy-Man : ^^^fes of Suf-
' as after due Notice for refufing to Chriften or Bury, he is to be penfion.
fufpended by the Bijhop of the Diocefs from his Miniftry by the<-aa. 68.
H h h h h 2 fpace
x6 The APPENDIX.
fpace of three Months. As for Marrying without Banns or Li-
i/^d ti^'cUu' ^^"^^5 ^^ ^^ unreafonable Hours, of prohibited Times, he is to bf:
dcfp.* c. q:iU ' fufpendcd per Trknnium, They alfo that omit to read the Common /
Lx. &c. mmii- Prayers, as by Law prefcribed, incur the pain of Sujpenjion. Ainf^
»''• in divers other cafes \ as for Marrying in a Parifh Church that is not
S°' T'c 27. ^^^"^^^^^ "^ ^^^ Licence^ the Miniikr may be [upended a whole
D.159'. ' * year.
Form ofSufbin- ^47'^ "^^^ ^^^^ ^f ^^^»/^» '^ "O where defcribed or fet down
fioti^ in the Canon La-w h but only that it be exprelTed in writing : Nci-
Extr.1.5. t.gp. ther is there any determinate form for the Abfoktion from that
c.Vmrabiln. Cenfure. Some will have an Oath de parendo Juri & ftmdo Man-
datis Ecclejia '•> and then it is affirmed, that thefe followings words
tona. dc Cen- are ufed by the Judge, Ego N. te ahfol'vo a Vinculo jujpenjionts in
funs, dif. 3. e^uam IncurriHi^ d^ rejtituo te ad Executionem tm Muneris 'vel
nu. 12. Or dints., vel ad Beneficium. In all which cafes it is requifite, that the
otfending Party do give fatisfadion according to the quality of his
Fault, before he be difmifled,
. , . (48.) There is alfo a Sufpenfion ahlngrejfu Ecclejia from entring
fu Ecclel!*!^ " ^"^0 f^"*^ Church, or receiving of the Sacraments, which 'is inflided
5 & d E.6. C.4. upon Lay-perfons for fmaller Crimes and Contempts j but now
generally laid afide and difufed. This was a kind of minor Excom-
munication.
OfExcommuni' ^ C4P0 The next Cenfure of the Church is Excommunication^
cation. which is inflidied either ab Homine vel Jure : when 'tis inHided
ah Homine 'tis ufually for Contumacy^ in not appearing before the
Ecclefiafticul Judge after a legal Summons, or elfe for difobeying the
Orders, Decrees, and Sentences of the Court, and the flighting of
his Authority.
Excommuni. C50.) When this Sentence is infiided a Jure., 'tis for fome" great
catio ipfo and notorious Crime,as he that (hall ftrike in the Church or Church-
*^^°' j'^Jis by the Statute of EJoi', ^. Excommunicated z/j/oy^^e i as
' ■ '4' alfo thofe that are married without Banns or Licence, that are pre-
Lind.dc eland, fent at, or confenting, privy to, or aiCfting at a Clandefiine Marri-
ne ^^ ^K^-, 3re Excommunicated ipfo fatlo. There are reckoned by Hojti-
/ffljz.'deSen.* ^'?/?'^ above thirty Cafes wherein the Law impofeth Excommunica-
Excom. §. qm tion i as for Herejie^ for firiking a Clergj'man, or Invading the
pjfi:. Rights of the Churchy &c. And FJjidwood in his laft Glofs laith,
there are One hundred feventy five Cafes of this nature.
Excommuni- (S^O The Major Excomwunication, which is for great and fcan-
catio Ma)or. dalous Sins, is folemnly denounced by the Bifjop himfelf with great
c'/d^^' tti^ror •, he is to be accompanied with twelve Priefts that have
burning Tapers in their hands, who when the dreadful Sentence is
denounced, extinguilh their Lights and tread them under their feet.
Now although the Fanatick and Nonconforming Party do wilfully
feclude
The APPENDIX. 17
Tcdudc themfelves from the Congreation of Chrifis Chnrch^yet this
Sentence was ever dreaded by our Anceftors, that were men of Parts
'Jjii^jpiety i it being a kind of binding and delivering over to Satan.
At this day the Sentence oi Excommunkatkn is (o much feared
and dreaded in the Greek Churchy that the moft impudent and
obdurate Sinners do ftartle at it. And they tell Examples of fuch
fad effects as have ilTued thereupon, that it is one of the moft power-
ful Arguments to inforce Obedience, and keep them within the
bounds of their Duty. When any is Excommmkated there, his
company is hated and detefted, 'tis univerfally tliun'd and avoided as ^'^''- crufiusj
fcandalous ; and they have an Opinion, that the Body of an Excom- ^'^' ^' P^8'27»
municated pcrfon cannot return to Duft and Afhes till the Ceiifure Ricaut.v).2n9^
be relcafed. Of which there is a ftrange Relation in Mart. Crujius
Hijt, Folic. Turcogracia : And another parallel ftoiy to this related
by Mr. Ricaut in his State of the Greek Church,
(52.^ He that deiires to be Abfolved and relcafed from the Sen- of Abfolution^
tence of Excommunication.^ muft by himfelf or his Prod:or make a
fubmiilion to the Judge of the Court, efpecially if he is imprifon'd
by the Writ de Excommunicato Capiendo.^ he mufi: put in Caution Dr. co^. Apo-
de Parendo Juri & Jtando Mandates Ecclefia. For it is highly rea- logy,chap.2,
fonable, that he who hath refifted the Courfc of Law, and contuma-
cioufly perlifted in Excommunication until his Imprifonment, (hould ^
firft give good Security before he be truftcd again, and difcharged
from his jull Confinement. ^
(53.) Thefe Cautions are of three forts i i . Fidejuforiay when a of dutions*
man is bound with Sureties to perform fuch things. 2. Pignoratitia,
when a man gives a Pledge for the performance of what is defired.
3. Juratoriay when the Party fwcars. One of thefe Methods is ob-
ferved in Abfolutions.^ and the ufual way is an Oath from the Cri-
minal de Parendo Juri (^ fiando mandatts Ecclefia in forma Jurts, Dr. C6\, Apo-
But certainly the beft way for fatisfadion is for the Ordinary to re- logy,pag.i3. .
quire a fum of Money for Caution before he decrees Abfolution\
this being the beft Security, for thofe that value not the Laws of
the Church or an Oarh, will yet regard their Mony. And there-
fore where the Quakers will not fwear to receive Ahfolution^ they
may compel the Ordinary to accept of a fum of Mony for Caution, .
and the Writ de Cauti'one admittmda mentioned in the Regi-
fter, was provided as a remedy in that cafe. This Caution muft be
offered by the Oifending Party, or his lawful Piodor i for he is to
fatishe de contemftu & injuria Ecclefa iUata antequam a Prifona p.^^^ ^^^^ g^:
deliberetur. \t muix he dMo Idcnea &fuficiensCautiG, which is not
determined by the Law, but left to the difcrction of the Judge who
is to confider the abilities of the Perfon, and the qualities of the
Offence. This power of receiving the SubmiiTion of Excommuni-
cated .
8 The APPENDIX.
cated Perfons that are fignified and Imprifoned, is allowed by A5t
jEliz. 23. of Parliament., which at large (hews the manner of proceedinp;
againft fuch obftmate Perfons. ^^-A
Of inmdi^s. (54*) The third Cenfure of the Church is an InterdiB, hterdi-
Inftic. 4. 1. 1$. cere Jignif cat prohibere & 'vetarei this is a forbidding of the Cele-
bration of Divine Offices of a certain people i and then it followeth
"Nav. c. 27. nu. the Perfons wherefbever they remove,which is called InterdiBum fer-
i<^^- fonale. The fecond is Inter diBum locale, which is diredly leveU'd
Tambur.2. torn, ^g^^,^^ [^^\y ^ pj^^-^ .^ ^^^^ jj^^jj ^he Inhabitants may be received into
''^ ' ' another Church, but not their own. The third,which is Inter diBum
mixtum^y is when both Place and People are (ubjeded to this Cen-
fure.
Ofthemtmpt 050 Thofe that violate the 7«?cr^/(J? and celebrate Divine Ser-
ofanlnterdrti. vice, are to be punilhed with Excommunication. During thefe times
ramb ibid.q.d, Baftifm is allowed both to Children and thofe of riper yearSjbecaufe
Ljim.. Inft 11.4. Qf the frailty and uncertainty of life .The holy Eucharifi is not allow-
cept^' ^' ^ ^^' except it be in the Article of Death i and fo alfo is Chrittiaii
Burial denied in any Confecratcd place, except it be done without
C. i8.de Sent. Divine Offices. This is foraetimes impofed by the Superior for great
Excom in 6. Contempt after monition j fcmetimes by the Canon, as a Church is
c.Excepii. Interdided for Murther, &c. committed in it. This Cenfure is now
An. d0t^o6. ^^'^oll: totally laid alide, only the remembrance of that great Inter-
See the Qjiarrd didt which ?aul 5, laid upon the Venetians and engaged all Chriften-
c/Paul J|? $t& dom in the quarrel, is ftill freffi in mens minds, it continuing about
•voith thr State three years. And when the opprejjed Venetians began to take Arms,
ej enice. ^^^^ matter received a fpeedy accommodation.
Of penance, ($6.) Befides thefe greater Cenfures,Ecclefiaftical Penance is ufed
in the Difcipline of the Church, which doth affedi the Body of the
Extf lib. 5.1.58 Penitent, by which he is obliged to give a publick fatisfadion to the
Church for the fcandal he hath given by evil Example. So in Pri-
mitive times they were to give Teftimonies of their Reformation,
before they were readmitted to partake of the Myfteries of the Church.
In the cafe of Inceft or Incontinency the Sinner is ufually enjoyned
to do a publick Penance in the Cathedral or fome publick Market,
bare-legged and bare-headed in a white Sheet, and to make an open
Confeliion of his Crime in a prefcribed form of Words, which is
augmented or increafed according to the quality of the Fault, and
the difcretion of the Judge. So in fmaller Faults and Scandals a
publick fatisfadion or Penance, as the Chancellor of the Diocefs or
other competent Judge (hall decree, is to be made before the Mini-
fler, Churchwardens, or fome of the Parifliioners, refped: being had
to the quality of the offence, and circumllances of the Fault i as in
the cafes of Defamation, Clandefiin Marriage, ftriking and abufing
of a Minifier, or the like* As for thole Faults which are undeter-
min'd.
The APPENDIX. ip
min'd, in Judicis fotifjimum reponitur arbitrio, qm ex qualitatihrn ^^^^ j^nr.
'varijs majorem'vel minorem fanam fiatuet. lib. 4. t. 8. c.
^ (57.) Yet thefe Cenfures may not only be moderated, but alfo Demumf).
lotarfy altered by a Commutation of Penance i and this hath been ^f Commutiti-
the ancient Priviledge of the Ecclefiallical Judge, to admit that an ^^/^^ ]i t 8
oblation of a fum of Mony to be diftributed tn Pios Ufus^^to fublick c. Accidie*
Highways^ the Relief of the Poor, and fuch like Charitable Work, 9E.2.C.23&3.
be accepted in fatisfadtioji of Publick Penance. This is exprcffed q^^^^ ^^^^
in Articnl. Cleri, Now this Power is folely fixed in the ^///jopj tit.19c.Deus*
Court, not in the Archdeacons^ or any other inferior Judge what- in fine
fbever, as is proved by the Legatinc Conftitutions.
(58.) Phyjitians and Chyrurgions in the time of King //f?^ 8. were ^f Vhyfitian^
to be allowed for the City of London^ and feven miles round, by the '^^^ chyrurgi-
Btjhop of London and Dean of St. Pauls, they calling to their affift-
ance for Examination four Docftors of Phylick, and for Chyrurgery
other expert Perfons i and thofe that Pradice may alfo be Licenfed
by the Univerfities by a particular Priviledge which is granted to ■
them. In other Diocefles, all Phyfitians and Chyrurgions are to be 3 Hen.8. cii,
cxamin'd and admitted by the Bijhop of the Diccefsy or h]S Vicar
General. And thofe that (hall prefume to Practice without the Li-
cence of the Ordinary^ (hall forfeit the fum of five pounds a Month '•>
which Adt doth particularly defend and prelerve the Priviledges of
the tv/o Uni'verfities.
C55?.) Every Clerk that paffeth out of one Dioceis into aiwdicr, Letters Vlmlf-
ought to have the Letters Dimijjhry ui Commendatory of his Dicce- fop'
fan, to telHHe of the Sobriety of his Life and Converfation, leii he ^^"/'J^' '" ^•^'
having lived diforderly in one Pwf/r, (hould only fly into another ver^J^clDix)"'
for Refuge and Protedion. And neither Infiitution. nor Orders are cefe.
regularly to be granted without thele.-
(<5o.) The four Solemn Times for conferring of Orders are the The Times of
Emher-'weeks.^ (they were originally called Imher-days^ bccaufe then Ordination.
they only eat Cakes baked under Aflies,that fo they might be minded
that they were only Afhes, and foihould turn again) and it is not Extrli.i.t.ip
lawful for any Bijliop to Ordain out of thofe Set-times, without a Canon 34.
Faculty from the Metropolitan. And the Perfons to be Ordained
muft have thefe qualities, A Title to a Cure^ Fellow of a Colledge^ ' ^^'
Mafier of Arts of five years fiandtngythat liveth at hts oivn Charge,
And in cafe thefe qualifications be abfentjthe Bi\hop that Ordains him
is to provide for him till he prefer him to feme living. And by an
Ad oi Queen Eltx.. for the Reformation of Diforders in the Minifters 13 Ellz. c. 12.
of the Churchy xh^ Perfon to be Ordained mufi: bring a Teftimonial
to the Bifiop of his honeft life 5 be able to give an account of his
Faith in L^fiw, and alfo firftfubfcribe the Thirty nine Articles. For Can. i2f.
which Letters of Orders^there is to be paid but Ten (liillings at moft.
The
20
INDEX.
i.'pHe Original of the Canon Law.
-»■ a.Thegreatefteemof iheClergy.
3. The realonablencfs of a Cotrcivi
PoTver.
4. Of what the Laws confided.
5.0f the firft part of the Body of the
Canon Law, called Vecntum.
6.0i thefecond part of the mcrdals.
7. Of the third part o( the Body of
Canon Law. (tions.
8. The Legadne and Provinc, Conftitu-
9.H0W thcLavv was confirmed byK.H.8
10. The defign of King Eitv, 6.
1 J. The Canons of King J aims.
12. Of the Governors of the Church,
and their Officers.
ig.Of Precedency. (nourable.
. i/^.Tht chunciUors place the moft ho-
I5. NecilTarjr to the Bifhop.
i6.The Opinion ofthec<*«<»»C'^J about
his Power. (^ducon,
17. His precedency before the Arch-
J 8. Of Laymen Chancellors.
19. The Archd< :cons place.
20. The Prebendaries Place.
2 1. Wherein Obedience confjflcth.
22. The Dean Ruralt Office.
2 J. Articles miniftrcd toDeam Rural.
24. His Power.
2$. Of Vifitations;
25. The Judges Certificate of Eccle-
fiaftlcal Jurifdiftion.
27.TheKings Proclamation thereupon
28. The Churchwardens Oath,
The Summary of the Appendix,
29. The Sides-mensOath. i
50. Churchwardens tomakeRat^.,
3 i.Infiruft. of the civilians fer Rates,
32. Of Terriers.
^;. Of Augmentations.
34. Of Peculiars.
3 5. Peculiars of Archidiaconal Power.
95. Peculiars that have Epifcopal
Power.
37. The abufe of Peculiars.
38. Of ihe Wills of Peculiars.
39. Of SequeO rations,
40. St(\\xtiiiix\oT\ftndtnte lite.
41. Sequefiration for Dilapidation.
42. Sequeflration to ferve the Cure,
or for Debts.
43. Of the Church Cenfures.
44. Of Sufpenfion.
4 5.0f Sufpenfion ab Officio & Bmficio
45. Caufes of Sufpeof/on.
47. Form of Sufpenfion.
48. Sufpenfion &b Ingrfffu Ecclifitt.
49. Of Excomnsunication.
50. Excommunication ipfofa£to.
5 1. Excommunicatio Major*
52. Of Abfolutlon.
n* Of Cautions.
5/I. or laterdids.
5 $. Of the Contempt of an intirdi^,
$6. Of Penance.
57. Of Commutations.
$8. Of Phyfiiians and Chyrurgions.
59. Letters Dimiflbry.
60. Of Ordination, asd the Times.
ADVERTISEMENT.
THE ORPHANS LEGACYi or, A Tefiamemary
Abridgments in Three Parts, 'viz,,
1, Of Laft Wills and Teflamcnts.
2. Of Executors and Adnfiiniftrators.
5. Of Legacies and Devifes.
Wherein the mojt material Toints of Law relating to that Suh-
jet} are fuccinEily Treated^ as well according to the Common and
^emforalfOS Ecclefafiical and Civil Laws of this Realm, lUufirated
with a great variety offeleB Cafes in the Law^ of both Troftjjions i
as well delightful in the Theory ^as ufeftdfor the fraBice of all fuch
as fiudy the one, er are either active or pajjlve in the other* By the
fanae Author.
FINIS.
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