— PRESENTED TO THE LIBRARY OP PRINCETON THEOLOGICAL SEMINARY BY JVIrs. Alexander Proudfit. £y //c///a. f ()a/y o i^i THE RIGHTS OF THE CLERGY O F Great Britain: As Eftabliflhed by the Canons; theCoMMON Law; and the Statutes of the Realm. BEING, A Methodical Colle&ion under proper Titles, of ail things relating to the Clergy, which lie ditperfec! in the Volumes of thole Laws. But chiefly of fucli Things which depend on Ads of Parliament, ar.d upon folemn Re folutiotts of the judges in the Courts at Weft- mlnjler ; In CASES concerning the Righrs, Duties, power* and Privileges of the Clergy. ; ByffiH* JiM&tfcof the Middle-Temple, Eiq- j —Durum ex me difee Laborem, Fort man ex aliis. c^t LONDON, Printed for Charles Harper, aC the Flower-de-luce, c againft St. Dun/tans Church in Fleet/freer, ijo?. { f.- TTT -»- • TO THE GLERGY O F Great Britain. » IT was the Prerogative of the Firft-born to be both King and Prieft $ and this may be a Reafon why the Eldeft Son was to have a double Portion, that he might better fupport both thofe Dignities which did for- merly thus Concur i?i one Perfon till there was apofitive Law to federate them, and that was not till H)e Priefthood was fettled in Aaron, and the Civil Government in MofeSa The Church being then reduced to a Pub- lick Policy, and governed by Priefts of Di- vine Infiitution, it was necejfary, that as fucb, they fhould be Reverenced by the Peo- pie* therefore they were crowned with Mi- A £ ' tm To the Clergy of Great Britain. ters of fine Linden % they off erect. in Veffels of*" Silver and Gold, and the very Wax Lights by which they performed their Evening Sa- crifices were jet before them in Candle flicks of Gold 5 they were anointed with the fame Oyl with Kings , and they had a Revenue full able to their Dig?iity, which did not con- fift meerly in Tythes, but i?i a certain part of all the Sacrifices ( except the Sin offer- i?ig) in the fir ft Fruits of Cor n. Wine, and OyU in the Firfl-bom of Men, and all ?in- clean Beafts which were redeemed at the va- lue of 12 5. 6 d. paid to the Prieft, and even among ft the Civilised Gentiles it was an univerfal Cuftome to honour their Priefts, and what is univerfal hath always an Ap- pearance of being reafonable. Thus the Romans had fo great a^eyerence for the Dignity of their tpriiflbood, that the Office of the Augurs was limited only to the Families of TZoblemm, which continued till the Tribunes of the People brought it amongfl the Plebeians, and long before that it was imputed to Jeroboam to be as great a Fault as any in his Reign to have dofen the friefls out of the loweft ofh$s Subjects. But To the Clergy of Great Britain. But to come nearer Home, the Clergy were info great Efteem throughout the whole courfe of the Britifh and Saxon Succefjions, that they were always the Judges of this Nation-*, and not only fa but their Judicial Determinations were Hfually grounded upon thofe very Laws which they themfelves had propofed and approved. And afterwards, when they had above the third part of the Land in their Poffefjion dif charged from all Services to. the Crown, and from all other Duties but fuch which they impofed on themfelves in their Ecclefiaftical A/Jemblies, Our Anceftors had ?iot the leafi Sufpicion that an ill ufe would be made of thofe vaft Revenues whilft in the^flands of the Clergy $ and therefore an Alien might bepre\ented to a Benefice which is a Free- hold in Law, but a Lay Alien was ?wt ah lowed f to pur chafe any Freehold, becaufe it was prefumed he would adhere to his own Country in time of War, in which this Na~ tion was tbenfrequently engaged. And as a farther In fiance of that Efteem which our Predeceffors had for Men of this Order, if any of them had committed a Fault which de fervid any Publicly Punifhment, he A 5. was To the Clergy of Great 'Britain. was never expojecf till degraded, and then he fuffered not as a Clerks but as a Lay- ma?:* But as 'tis ufualfor Men to run from one Extreme to another, fo now we live in an Age where you who are the Priefis of the New Covenant are in a worfe Condition than the Nethinimst)/ the Old $ you meet with Phi- liftines every Day, who would have you> like Sampfbn, grind in the MiU% but without taking Toll, thefe Men would have you to be the Mi/fionaries of the People, and if their Tower was equal to their Prejudice, they would make you Minifiers and Shepherds* not in the Metaphor, but in the Letter, or if you muft exercije the Minifterial Fundi- on, they would confine you to that ancient and cleaidy Part of it in Scowrivg the Vef- Jels, and Sweeping the Churches. Thefe are the Men who are Bom as the Wild AfTes Colts, and yet would fain be- come Wife, which they attempt by advanc- ing their Tmfel Reafon above Revelation, who in their Wild Rapfodies of a Heated Gonverfation admire the Modern Spinoza for that BLjphemous Notion in aferting i he Holy Bible to be a complete Syflem of > ■ Re- To the Clergy of Great ^Britain. Religious Errors $ but if they had Lei fure from doi?ig nothing? to read all the Books which either he or Porphyry before him have mote againjl the Gofpel, they could never eftablijh Irreligion by Argument^ 'tis true, they might, like them make fome vain Attempts againjl the Authority of the Scriptures, but to different Purpofes : for Porphyry did it to advance the Philofo- phy of the Stoicks, who placed their chief Happinefs in Virtue, but thefe Men expofe Religion to fecure themfelves from their own Guilt, and living in a fettled NegleU of all Divine Inftitutions, have not Stoicifm enough to regard Virtue, either for the Advantages which attend it in this Life? or the Rewards in the next. And tho% fome amongft us who are net arived to fuch open and prof effed Impieties, may exert themfelves in very High Flights for the Imaginary Good of the Church 5 yet if it had no better fupport it would ft and as tottering as the Ark of God did formerly in tJzziah s Cart 5 for rather than n?i to make Provifion for the Flefh to falfiltfw Lulls thereof they would turn the very Churches into Taverns, ajuLUte Belfhaz- A 4 m, To the Clergy of Great Britain. zar, drink Wine with their Concubines there* And yet fuch Men as tbefe, who were Holy David's Fools? muft now by a fatal hfiflife be imagined the Wits of this Age, if that may be called Wit, which confifts in your ChqrdStefi in declaiming we, injeftirig you in- 'OrtS of Lives, which they the World you Jbould efietim as Types and ''Sfnt* dews, and abolijh the?/i nr'1 theCtitemcnial Law: And, Laftly, by Hi timing you into the Love of that Poverty which they hate above all things $ thus the late famous Lau- reat tells you, That Your Saviour came not with a gaudy Show, Nor was his Kingdom of this World below, Patience in Want and Poverty of Mind, ft Thofe Marks of Church and Church- men he de-\ fignd/ And Living Taught, and Dying left behind. Y The Crown he wore was of the pointed Thorn? In Purple he was Crucified not Born, They who contend for Place and high Degree^ ■ Are not his Sons, but thofe ofZebedee* Bui To the Clergy of Great Britain. But a Wifer Man than our Poet hath told us, that thd Wifdom is better thin Strength, yet a Poor Man s Wifdom is defpifed, and his Words are not heard. 'Tis true, if the World was made of pure and refinedVertue, this would be a glori- ous Example for you to follow, for then the DoMrine which proceeded from a Poor and Humble Priefi, would have as great Effi- cacy on the People, as that which came from one c loathed in Purple and fine Linen. But 'tis plain, that in the very Ruft of an Iron Age, Men will be governed by Opi- nions, not always built upon juji and regu- lar Motives j that they will be influenced more by the Appearance than the real value of Things and Perfons 5 and then it muft neceffarily follow, that he who Officiates in Wretched Weeds will render his Performance as Mean and Contemptible as his Perfon 5 and that the People will not care how feldom they offer up Praifes and Thanksgivings in thofe Churches which are not beautified fo well as their Ordinary Houfes, and where the Prieft himfelf is fo much cut of Repair. But what is worfe, where the Clergy have a Maintenance fuitable only to their com won To the Clergy of Great "Brituinl vion Nece/fities, and not to their Dignity 5 in fuch Cafe, the faying of Panormitan will always prove true, (vi%.) Ad tennuita- tem beneficiorum necefTario fequitur ig norantia Sacerdotum, and where fuch Shephards are, the Flock muft needs go a/tray. And yet fuch there are in many places which might occafion the Archbifhop of Spalato to make that fevere Reflection on us, ( viz.) that he faw nothing reformed but our Vottrine, and a Learned * Prelate of our Church hath obferved, that the flender Provifion of many Minifters is a Contempt upon Religion it felf, and an unanfwerable Prejudice to the Reformation, New fince many of you labour under fome cfthefe Difficulties, and fince all your Di- ligence and Application both by Preaching and Writing can fcarce give a Check, to the Opinions and Prattifes ofunreafonable Men> or i?uke any awful lmpreffions on them of that God whom '/ is their Advantage as well as Duty to obey, therefore that the Concerns of your Civil Rights might not too much di~ Pi j fa ce to Hift, Rtjbr m. 2 Pts. To the Clergy of Great ^Britain. vert you from juch difficult and ufeful Stu- dies j I have collected all the Laws relating to thofe Rights, and reduced them -under proper Titles, that you may at one View Pe- rufe all that is pertinent to each SubjeSl witliout buying or reading many Volumes in which they lay difperfed. Something of this Nature hath been al- ready done by Sir Simon Degg, arid with great Judgment, fofar as he hath gone, and fince him by Dr. Godolphin, who being a Civilian himfelf, hath fo blended the Civil Canon and Common Law together, thai in his Book., there k an incoherent Mixture of all thofe Laws, and 'tis ameer Tranfcript of many Common Law Cafes, without Ordei\ Method or Application. It has been my care infome meafure to fupply the Defefts of thofe who have wrote on this Subject, and like wife to be fervicem able to you whilftyou are carefully difcharg- ing your Duties in this World to make all of us happy in another. And To the Clergy of Great 'Britain. And thd fuch your Endeavours may be reviled with thefenfefs Name cfPrieftcraft, yet 'tis not to be* doubted, but that Power which heretofore enabled a few poor Fifher* men to fubdue a great part of Mankind to the Obedience of their Redeemer, will flitt enable you to proceed in all things neceffarj to the great Charge committed to your Care, and as this may be a means to remove that Contempt and Scorn which fome profligate Men have raifed againfi your Perfons, fo it may be a?i effectual Method to preferve the Church from Danger. It may be in Danger by Divifwns amongfi yourfelves7 and yet even then God may jhew it fome particular Mar fa of his Favour, but it muft be as Mofes told the Ifraelites, not for the Rightecufnefs of her Sons, but for the Wickednefs of her Adversaries. Such Divifwns mayjhake the Foundations of a Church, tho Built on a Rock, and at laft dajh it into pieces, this Danger we have once, and not many Tears fince, efcaped 5 and if we do not grow wifer by the Mi [chiefs which were then in view, we J hall neither be re [petted at home or abroad, which puts me in To the Clergy of Great 'Britain. in mind what a learned Prelate who was pre** fe?it at the Synod of Dort, obferved upon the Old Poet Prudentius, that he [poke likfi an Oracle in thefe Words : ScifTura Domeftica turbat, Rem cleri titubatq; foris qui diflidet intus. Therefore 9th to he wifhed that you may never be diftinguijhed by Opprobrious Names or Characters, which in time may make the Church truly Militant, and then Religion may be in danger of being fiormed out Qj the World, for as intemperate Zealots fel - domgive, fo they cannot expeft Fair Quar- ter. 'Tis likewife to be defired, that Mode* ration which hitherto hath been counted a Virtue, may not lofe that noble Character and be turned hit o a Name of Reproach, and that a well tempered Zeal for our Re- ligion may not be branded with Lukewarm- nefs, unlefs 'tis hot enough to fcorch our Charity, which hath fo long been efteemed afaving Grace, and which will ever conti- nue one of the brighteft parts of Chrifti- amty To the Clergy of C/redt "Britain. anity that Vnit% Love, and Meeknejs may never be forgotten to be the difiinguifhing Marks of the Chaplains of the Prince of Peace 3 that it was theDove, and not the Raven which returned with an Olive-leaf in its Mouth 5 and Laftly, That the peace of Jerufalem may be duly confideredr and al- ways preferved in the Chamber of that Name. N. B. The Authors living a great diftance from the Prefs has occafioned fome Erratas in the following Book, which the Reader isdefired to mend* ^ome BOOKS Printed for, and Sold by, Charles Harper , at the Flower-Muceiover againft St. Dunftaris Church, InFleetftreet. Divinity and Mifcellaniest THE Relative Duties of Parents and Children, Husbands and Wives, Matters and Servants, Confider*d ; in Sixteen Sermons ; with three more upon the Cafe of Self-Murder* in Oclavo ; by W. Fleetwood, now Lord Bifliop of St. jffapb. An Eifey upon Miracles, in Two Difcourfes ; the fecond Edition, in Oft*™. By the fame Author. A plain Method of Chriftian Devotion, laid down in Difcourfes, Meditations, and Prayers, fitted to the various Occafions of a Re- ligious Life; Revifed and Tranflated from the French of Monfier Jmrit*, in Twelves, by W. Fleetwood, now Lord Biflicp of St. Jfaph- The Reafonable Communicant : Or an Explanation of the Do- ctrine of the Sacrament of the Lords-Supper, in all its Parts, from the Communion Service, in a Difcourfe between a Minifter and one of his Parifhionerss the fourth Edition, corrected by the Author, Price i s. >T. &. This Book being very well approved of, is, at the Requeft of feveral of the Clergy and others, Printed in a lefTer Cha- racter, for Cheapnefs, to thofe that give Numbers away,(w;c) price 3 d. or one Hundred for 20 /. The Hiftory of the Old and New Teftaments in Verfe ; with three Hundred and Thirty Sculptures, in Three Volumes, Dedicated to her moft Sacred Majefty, Vol. I. from the Creation, to the Revolu- tion of the Tribes, Vol. II. from thence to the end of the Prophets, Vol. III. Reprefenting the Aclions and Miracles of our Bleued Sa- viour and his Apoftles ; by Samuel Wefley, M. A, Author of the Life of Chrift, Oftavo. # The Pious Communicant rightly prepared ; or a Difcourfe con* cerning the BlefTed Sacrament, with Prayers and Hymns, fuited to the feveral Parts of that Holy Office : To which is added, a Di- fcourfe of Baptifm, a Difcourfe of Baptifm, and a Letter to the Re- ligious Societies ; by Samuel We/ley, M. A. Chaplain to his Grace Jihn Duke of Buckingham* and Marqucfs of Normanby\ in Twelves, The whole Duty of Man according to the Law ot Nature, by thar famous Civilian, Samuel Puffendorf^ now made Englijh ; the third E- dition, with Additions and Amendments, in Oftavo. The Hiitorical and Mifcellaneous Traces of the Reverend and Learned Peter Helyn, D. D. now collected in one Volume, and an Account of the Life of the Author, never before publilhed, in Folio. b Refolves : Divine, Moral, and Political, with feveral new Addi- tions both in Profe and Verfe, not extant in the former Impreflioris by Owen Feltham, Efq; in this Twelfth Edition, References are made to the Poetical Citations, heretofore much wanted, and the Lan- guage reftVd, now printed in OBavo. Bifhop Ujher's Power of the Piince, and the Obedience required ot the Subject, with a large Preface, by Biftcp Sander fun. Oftavo. The third and laft Volume of the Woiks of Mr. Abraham Covfrj : being the Second and Third Parts thereof, adom'd with Proper and Skgant Guts, Pari ad, wh ■■ ' . H (0) M.yna Cbarta, «p. jfc (*■> 2, Inft, yy, I only I only mention thcfe things, to (hew that thefe Orders of Men did not altogether fpend their time in Devotion and in the Service of God, but in confulting with the ableft Lawyers to evade thofeLaws which were made againft their Tempo- ral Intcrett, and by this Means they got the belt part of the Lands of England into their Poffeflion. And now their Houfcs, which were built In laudem & ho- noremDei, were converted into Nurferies ot Licentious People, who, by Cheats and Impottures and other Mi raculous Whim- fies had drawn all forts of People thither in Pilgrimages; from whom they got all they had in this World, to lecure a lafe and quiet PaiTage for them into the next ; and thus they continued for many Ages till the Reign of H. 8. Tis probable that King intended only at firtt to reform thefe Abufes, and not totally to diflolve the Houfes, but they chofe rather to Rebel then Reform, for about two Years be- fore he appointed any Vifitation of theie Regular?, there were two Rebellions ; one in Lincolnflnre headed by a Church- man, but dilguifed in the Habit of a Cobler, and directed by a Monk ; the other in Tort/hire, where one Asl was their Captain, and this was called, The Pilgrimage of Grace-, for fome Prietts marched before the Rebels "with CrofTes in their: Hands, and Crucifixes in their Banners. But thefe Rebellions being fupprefied, the King about the 28th Year of his Reign appointed Vifitors to infpect all thtf Abbies, and to examine every thing which related either to their Converfation or Superttitions, and to report it to the Lord Vicegerent Cromwell. But if the King did always intend a Di Ablution of thefe Bodies of Men, it was now the more eafily to be effected, for fome of the Abbots had been guilty of comforting and alTlft- ing the Rebels, and others were convicted of Diforders by thd Vifitors, and thus molt of them perceiving their time o£ Dillo- lutioii drawing near committed great Walls, fothat by thefe Motives they were induced to Re/ign their Houfes to the King, that they might have a better Title to PenfionS during their Live?. It was by thefe Refignations that the Houfes and Lands of the Abbots became vetted in that King, which were after- wards granted by him to the People, under which Grams they are enjoyed to this Day. Some Writers in the late Reign of King James II. £ave the prefent PoffelTors a very large aflurance of their Titles, fo that they would Hot be in any danger of ioGng the* Lan 4 a&weifc; Popery flic uld have been eftabliftied here, becaufe the Pope ttmlelf bad granted a Difpenfation in this Cafe, with anon j ro the Canon Law. Ho a ever this was not much regarded, for the Plenitude of the Popes Power is fo extenfive, that it may be aQueftion ( where that prevails ) whether it can be bound by any A&s of his PrcdecefTors. Tis true we were then told that what was done by any former Pope, could not be well revoked at that time, which is as much as to afhrm that it might be done whenOp- pcrtuuity ferved. But the prelent Pofleflbrs have a better Title to thofe Lands than the Popes Difpenfation can give them; for, as I have mentioned, moft of them were furrendred to the King by the Abbots and Convent themfelves, and thefe Surrenders were ail confirmed by Act of Parliament. The Penfions of thofe Abbots who furrendered were pro- portioned to their Crimes or Innocence, but the Monks were allowed not exceeding Eight Pounds during their Lives, or until they ll.ould be provided with Livings, which they were certain to have upon every Vacancy, becaufe thofe who pur- chafedthe Abby Land? of the King were to pay thefe Pen- fions to the Monks out of the Rents of the fuppreiled Mona- fterics, and toeafe themfelves of that Charge, the Purchafers were very industrious to provide Livings for them. But this was a wrong (tep to Reformation, becaufe the greateft part of the Clergy were ( by this means) fuch who had been formerly ignorant Monks and Fryars, which Sett of Men were not worn out till the Reign of Queen Elizabeth, and then thofe of better Education were placed in the Churches. It has been often infinuated as a reproach to that Reign in which thefe Monasteries were furrendred, that it was a rob- bing of God, and that it was a covetous defire of their Riches which made the King fo intent upon the Refor- mation. In anfwer to this, I muft admit that Churchmen ought to have fuch a Subfiftence which may fecure them from all Se- cular Care:-, and from that contempt which is always inci- dent to Poverty. They ought likewife to have fufficient for charitable Vks, and to fupport Hofpitality, for by this means they Yi'w and engage the Affections of their People. But But when they grafp after great Riches, when by Pious Cheats they had fraudulently obtained from an ignorant and unthinking Laity the greateft part of their PoiTeflions and Riches, and when thofe Riches were leldom or never applied to any religious Purpofes, then it became the Intereft of the Nation in general, and of the Government it felf to reafTumc thofe Lands, which had fo long continued ufeleis to the fup- port of the one, or defence of the other. The Hiftories of thofe times inform us that the Abbots be- came rich by falfe Opinions and notions of Purgatory im- pofed on the People, by Relicks, Ma lies, and other lupcr- ftitious Solemnities, and, what is worft of all, bv the Spoil of the Church it felf ; for both the great and fmall Tythes which belonged to the Secular Clergy (that is to Parfons) were in many Places taken from them, and by the Popes Aurhority given to and vefted in the Monarches, and the Abbots al- lowed thofe who ferved the Cure but fmall StipenJs, and, where they were moft liberal, it was only to permit the Poor Vicar to have the fmall Tythes. But it is natural to Mankind to be always in Extrcams, for when thefe Abbies were diilolved, and all the old Monks Dead or provided with Livings, fo that their Penfions ceiled thofe who purchafed their Lands of the Crown, had the t charged with no other Incumbrance, but with that poor Stir pend which the x\bbot had given to thofe who officiated at the Altar, and which as the learned Bifhop of * Sarum right- ly obferves, is not a competent Maintenance for a Clergy- man now, for it would fcarce fupport a (Ingle M;^n then, without the additional Helps of Fees for Obits, Exequies, MalTes for poor Mens Souls (for the Abbots themfelves had the Profits from thofe that died rich ) and fuch other Perqui- lltes, all which are now gon, and nothing in the room ; lb that the Clergy in many places have a very narrow Subfi- ftence, which certainly makes them fabjett to want, and by confequence to Contempt ; and this he telis us was the greateft Mifchief which befel the Church at the Reformation, that there was not a better Provifion then made for the Clergy. Tjs true this was not only a great but a very un- equal Change, for Men who lived in the grcatert Eafc and Plenty, to fubfift upon a Penfion of 8/. per Ann. for none of the Monks had more, and all of them could not be provided with Livings : for Men who to diftinguiih them- * Preface to 2. Vol. of Hift. of Reform. B 2 felv 8 6 mutts* felves from the reft of theEcciefiafticks, were called Regulars, becaufethey did or fhould live under certain Rules of Go- vernment in their Houfes-; I fay for thefe Men to be blended amongft theLaity, and fpend the reft of their Days in a poor and negltckd manner, for thefe Men who had the Honour to fee the Heads of their Hotifes mitred, and exempt from the Ju- ri: diction of the Bifriop, by particular Grants from Kings, as Abingdon by King KenuIpB, Battle by William the Conque- ror, &c. and net only lb, but to exercife Epifcopal Autho- rity within their own limit?, and who were Lords of Parli- ament themfelves ; andlikewiie to fee the very fame Perfons. ftript of all thofe Privileges and Preferments, and to live ma- ny Wars afterwards lefs regai ded than the Porter? of their Ab- bies before the diffolutio'n, and what is ftill worfe, to entail Poverty upon ntoft of the Vicars of this Kingdom. I grant there were no fixed number of thole Abbots who were Lords of Parliament, but there were always forne ; in 43 H. 3. there were 102 Abbots and Priors fummoned to Parliament, in the Reign of Ed. 1. and£accrti:S rite ordinattts hahet potejhtem fttf- fcientem quemlibet Contrttum a paccato qmlibet abjolvendi; where the Word Contritum feems to be the Foundation x>f Abfolution, for without Repentance there can be no Pardon. Tis true, Abfolution is ufually given to dying Perfons, Vcho have but a little time to repent ; and in fuch Cafe there may be fome Difficulty how the Minifter (hall be fetisfied, that the Faith and Repentance of an expiring Sin- tier is fincere, and how he fhall know that 3tis accepted, in order to the Remiffion of his Sins; for if the Minifter is not fatisned in thefe Particulars, he hath no Authority to japply the Prcmifes of Grace and Salvation to the dying Perfbn. All that can be faidin this Cafe, is, That after the Mini- Ser hath folemnly addreiTed himfelf to God, in Prayers, nd particularly upon this Occafion; he ought afterwards lerioufly to apply himfelf to the Penitent, and to examine him concerning his preferit State and Condition ; and if he find that his Confcience is touched with a Senfe of his Sins, then he ought to encourage him in the Progrefs to a Gncere Repentance; and when all that is done, he muft- leave the Succefs, where infinite Mercy is to be found. Therefore thofe Minifters, who in April^ i6g6. abfolved Sir John friend, and Sir William Parhjns9 at the Place of Ex- ecution, were juftly ceniured, by the Governours of the Church, to be both infolent and irregular in that A6t, becaufe the dying Perfons were not moved by them to make any CocfefBon of their Sins, or at leaft of that Sin of High- (*) Pr^nn. on 4. loft, »*£ Tre^- SHriffnenct* 1 1 Treafon, fot* which they were to fuffer ; f chey were fo far from believing it to be a Sin, that they i r fled a Satis- faction to die for it, therefore they could nor rn ent, or de- lire Abiblution in fuch Cafe; io that Abfolving then was not only a Justification of that Crime, tor which they were condemned; but a bold Aftioat, both to the Laws cf the Church and State. Abftinencc. T think nothing hath been more abufed than this Vertue of -* Abftinence, which is recommended to us by the Church, and which we ought to obferve, fo far as it tends to depreis any inordinate Appetite, and make it more fubfervient to the Purpofes of Religion, Tis this, and only this, which may be truly called a re- ligious Abftinence, for it humbles our vicious Natures, and by that means raifes our Minds to a due Senfe of Prayer and Devotion. But there is another Sort of Abftinence, which is called Ritual, and which confifts only in abftaining from particu- lar Meats, at certain Times and Seafons ; and this is pre- ferred as a Task, which we muft undergo, to expiate our Sins, when at the lame time we are allowed to indulge our Appetites with all manner of delicious Wines, and with any other nourishing Meats, but thofe which for that time are prohibited. So that this Ritual Ahjlinence is a mere Mockery put upon Religion; it cannot be any manner of Pennance, and yet 'tis believed to be fo, and to be compleated too, when the Fafting (as they call it) is over. But certainly Men inuft have a very (lender Opinion cf. their Sins, when they can believe they are fo eaftly expiated ; not by any feverc and afflicting iVbftinence, which may mortifieour Natures, and make us more intent upon religi- ous Duties, but by drinking the moft pi eafant Wines, and feeding'upon all other Delicacies, which either Art or Na- ture can provide for us. This merry and pleafant fort of Abftinence, being (o widely different from that which was inftituted by the Church, in the primitive Times, and fo agreeable to our na- tural Inclinations, muft neceiTarily expofe the other to Scorn and Contempt 5 and thofe who defpife the Inftitutions of the i2 amnfflfott tip Church, have always very mean Notions of Religion^ and are bold and ignorant enough to defpife even God him- ielC ft was the Spiritual Monarch of the Wefiern World, who introduced this Ritual Abjiinence arhongft the People, who at firtt attempted only to govern the Eccle/iaffich^ by his Law called the Decretals, which were publifiYd here in the Reign of King Stephen; but afterwards he brought the Laity under certain Laws and Rules, and particularly under thofe of Abfhnence, which were then called Rogations ; but fo grofly abuied from the true Defign and Nature of Fafting, that a certain Bifliop of France, in Imitation of the Pope, instated certain Days of AbhYinence , as Sit Henry Spelman tells us, which were to be a Sovereign Ri.nedy to cure the French Pox ; and it wa:> to be performed, by walking about 37 Miles, in middle Zynt, to the ) 4 Inft*38. {f) |:Ir.ft. i»*. ty N. B. 47 W a.Inft. 6?:, ( H* ft *•*>' I \6 aamiffiott; So (J) Perfona in liter at ar a minus fufficiens feti babilis ad ha\ lend' aliquod beneficium Santta Ecclefi) -Seld. en Eadm. 185. lex. 37, (c) Seld. Januj 3 j, (d) Spelm. glofg in vciUj, (c) Spelm. glofsjn vcrbo L«irni|% enough 9DttItetp* 19 enough to (tand againft him, then the Temporal Courts re- aiTutrYd this Judicature : But in this Conte(t the Clergy ob- tained, that neither they or their Caufes fhould be brought before any Secular Judicature, and being lure to find Fa- vour in their own Courts, a fmall Fine did not dilcourage them from committing this Offence. And thus it ftood till the Reign of H. 7. cap.q.. when the Papal Authority began to be a little diminished ; for this, there was a Law made, that the Ordinary ilia.II punifh Prieftsand Clerks, and religious Men, for Incontinency, by Jmprifonment, according to -the Quantity and Quality of their Trefpafs, for fo is the Phrafe in that Law; and this we are told, by the Preamble of that Ac% was fjr their more fare Reformation. So that tho thePunifhment was fometimes directed by the Temporal Laws, (/) yet the Spiritual Courts took Cognizance of the Tryals in theie Cafes, to which it belongeth at this very Day; and there is a Canon (g) enjoining the Church-War- dens to prefent to the Biiliop, thofe who offend their Bre- thren by Adultery. I will not affirm, but 'tis very probable, that fince the Spiritual Courts have a Jurifdiclion in Cafes of Adultery, therefore the Common Law did not puniQi an Adulterefs with the Lofs of her Dower 5 but this is now remedied by the Statute W. 2. (h) vU. that if the Woman wilfully leaves her Husband, and lives with the Adulterer, fhe (hall be barred of her Dower, unlefs the Husband freely forgives her, and fhe cohabits with him again. My Lord Coke (i) mentions a very ftrangc Cafe, which he tells us was thefir(t Judgment given upon this Branch of that Statute, and it was thus : Sir William Paynell married the Widow of John Camcis, and in her Right brought a Writ of Dower, to which fhe was entituled by the Death of her former Husband, The Defendant pleaded an Elopement, and that fhe lived as an Adulterefs with the Demandant. He replied, that her Husband granted her to him, by Deed executed in his Life-time, Virtute cams nonvi.vit nt adulter a wit!) the Demandant, Sir William Paynell; but as his Wife, and upon Demurrer to this Replication, Judgment was given againft him. (/;Jones2?9, U) Cm. lay* (!.) W. a, cap 34 2 Inft 4*5* (i) 2 ftift. 435. C 2 As 20 awjofofon; As it was the firft judgment given upon this Statute* fo 'tis the firli and only Inftance of a Wife which was granted by Deed : Tis true, it was adjudged to be againft Law, otherwife we fhould have met with many more Grants cf the fame Nature. Lyndvpood tells us, That a Perfon convicled of Adultery,' is ipfo faflo, deprived ; but he is of Opinion, that there cugbt to be a Declaratory Sentence in the Ecciefiaftical Court ; (£) but if the Perfon, thus deprived, fhould be pardoned, then he is reltored without Suit, becaufe thole Courts cannot determine the Validity of a Pardon. Adultery is likewife a fufficient'Cauie of Divorce, but then it mull be proved by WitnefTes, and not by Confeflion of the Guilty Party « which fee in Title Divorce. AJvowfon. \A/H ETHER this Kingdom was divided in Counties by ** King Alfred, or before, 'tis not material here to en- quire ■ tho* Mr. Selden (/) was of Opinion, that it was long be- fore : But be it as it will, asfoon as the Land was thus di- vided, the Kings of England began to build Churches; and in a little time other great Perfons, in Imitation of them, did the like, upon a Parcel of their own Demefnes, and endowed thofe Churches with Lands belonging to their Mannors. When a Church was thus built and confecrated, it was no longer any Man s Property ; but yet there was a Power referved in the Founder, to bellow it upon a fit Perfon, which was afcerwards called the Right of Advowfon ; («) and this was no more than in his own Name, to prefent fuch Perfon to the Bifhop upon a Vacancy ; and the Founders in a religions Zeal which was fervent in thofe Days, al- ways appointed Advocates to defend the Rights of their Churches in any Courts; and this afterwards became an Honorary Title. So that by degrees, thofe who gave the Ground on which "Churches were built, and the Founders, and thofe who en- dowed them when built, O) were called Advocates, orPa- s; and the Right which they had to prefent, was lied the Right ci Advowfon; not as fome Men would (JO Hob .21*. Cro. Eliz. 41. 7^. G) Scid- Tit. Hon. jo9. (») I Inft. 17- b. tn) 1. Inft up L>. ♦ . have StD&OfofOlt. 2 r have it, becaufe the Patron Advocat dium to fupply the Va- cancy, but becaufe he was bound to protect and defend the Church from Oppreflion and Violence. > Appendant An Advowfon, as it ftandeth in our Law, is C or £ln Grofs. Under which Divifion I fhall (new, I. To what an Advowfon is propedy Appendant, and to what not. II. I (hall move it to be a Temporal Inheritance. III. By what Words it palTes in the Cafe of the Queen, and of a common Perfon. IV. What Acls make an Advowfon in Grofs, and what not. V. I lhall mention fomething concerning the Forms of Pleading in thefe Cafes. I. As to the Firft of thefe, all Advowfons to which con> imon Perfons had any Right, were originally appendant to Mannors: becaufe the Church it felf was built on thole Lands which were Parcel of the Mannor, and the Right of Patronage, or the jus honor 'oficw, astheCiz//7i, (e) G. v<]y vcrf. Ep'm. Camur. Hob, '(/; Godb, 128. 2 And. 21. (2) Vaugh. 15? Alimony. 'T'HIS Word, in a legal Senfe, fignifies that Prnpotion of **• the Husband's Ettate, which by the Sentence of the Ec- clefiattical Court, is allowed to the Wife, for her Mainte- nance upon any Separation from him, which is not caufedby her Elopement or Adultery. Tis properly cognizable by the Ordinary, (h) and by no other Court : Tis true, there lies an Appeal, but (till to art Ecclefiaftical Judge; and if the Perfon convicted will not obey the Sentence, he may be Excommunicated. By the Civil Law, notwithstanding the Elopement of the Wife, yet her Husband mutt allow her Alimony, Pendente lite. The Form of proceeding infuchCafe is thus: The Proctor alledges, that the Parties were married, and prays that the Man may be condemned in expenfis litis & alimonU; this ap- pearing to be true, the Judge condemns him according- ly. Then the ProEtor gives him a Bill of Cods, and at the Bot- tom writes thus, (viz.) Petit pars ditlu B. jumptum alimonU from the Time of the Citation, durante lite juxta rat am of fo much per Week, leaving a Blank for the Judge to infert it ttfque finem litis, m Then he taxes the Cofts, and being certified of the Abili- ties of the Man, he taxes fo much for Alimony, weekly, &c. Nifi alker per nos decretum erit, and the ufual Sum is the Third, or at leaft the Fourth Part of the yearly Value of theperfonal Eftate of the Husband. This is not very Beneficial^becaufe 'tis not a final Sentence, and by the Form of it 'tis abfolutely in the Power of the Judge to alter it ; for 'tis Nifi aliter decretum erit per nos, whereas the Judgments in the Temporal Courts arc moie ftri£t, (viz^) Nifi caufa often/a fuerit in contrarium, &c. But in thefe Cafes of Alimony, if the Wife voluntarily de- part, and afterwards repents, and fubmits, and defireth to co-habit with her Husband, and he refufes, then he nuift al- low her Alimony, but if her Departure was occafioned by him, Propter faviti am, and he fhall offer iiifficient Security for his good Behaviour to her, and (lie refufes to return, he JhaU (*) zR.7l.Rsp. no, Cro, Car, 220. Manh. 80. net *6 9ttarao;e* not allow her Alimony. And yet if the Spiritual Court (i) fhould decree itinfuch Cafe, the Party is without remedy; for the Temporal Courts will not grant a Prohibition, be- caufe the Ordinary is the proper Judge, both of the Security and Reconciliation. Altarage. TTHIS ex vl Termini, fignifies the Profits which the Prieft x had by Oblations at the Altar ; for when the Mother- Church was appropriated to a religious Houfe, (k) the Oblati- ons made in the Chappel of Eafe, did not belong to the Convent, but to the Paribn who officiated at the Altar, and from thence it was called Altarage. JTis a Word which was generally inferted in the Endow- ment of a (/) Vicar idge ; thus we read a Parfonage was appropri- ated Salva vicaria qu Cro. Car. 291. : Rd. more appeal* 35 more AppArMors than their Predeceflbrs had for thirty Years next, before the publifhing the faid Canon $ and that iiich Apparators (hall execute their Mandates themfelves, and make no SubRitute without Leave of the Ordinary; that they (hall not be Informers, nor take more Fees than allowed by Law, &t. Apfeal. HP HIS is the Removal of a Caufe from an Inferior to a * Superior Court, which hath Power to reverfe or affirm any former Judgment made or given in that Caufe ; and thisfeemstobea natural and fundamental Part of Juftice: For fince Men are fubje6l to Miftakes in fubordinate Judica- tures, there ought to be Superior Courts to reclifie thofe Er- rors, and to preferve Juftice. And this Superior Court was formerly that of Rome, to which all Appeals were made before the Reformation, tho' it wasdire&ly againft a Decree of a whole African Council, in which St. Aufin prefided, and therefore I fhallgive a fhorc Account of the Rife and Progreis, and at laft of the Statutes prohibiting Appeals to Rome. Aihanafm (g) being depofed from his Bifhoprid of Alex* inndria, by two Synods of Eaftern Bifhops, upon Pretence of iome Mifdemeanours, and finding no Redrefs among them, becaufe the Herefie of Arrius was very powerful there, be applied himfelf to ^ul'irn^ then Biihop of Rome, that his Caufe might be re-heard : Julim being the Chief of the Wcflern Bifhops, communi- cated this Matter to the Reft ; and he, in their Names, lends to trie Bifhops of the Edfc that they would aflllt, and be prefent at this re-hearing, which theiy either refuted, or neglected to do. Thereupon the Bifhops of the Weft re-examined the Caufe, and received Athana/ttu'lrito their- Communion. But the Ea;? W D 3 - pre* 38 appeal; premacy came to be exalted, Appeals to him were a neceffa- ry Confequence thereof ; and for a long time the Papal Au- thority prevailed over the Regal; but at laft the Pope's living at Avignon, and being followed with Schifms, when they re- turned to Rome, their Power began to fink; and then Councils afTerted the Freedom of the Church from Papal Encroachments, till at latf Princes and Popes divided all the Rights which were claimed by the Church ; and Kings re- affirmed the Power of determining Caufes by Appeals, in their Secular Courts ; but (till with fo tender a Regard to thatSpiruual ]urifdi<£tion, which had been practifed in fuch Ca.cs, tliat a Diftinclion was found out to palliate their Au- thority ; for theCaufe of Appeal was fuppofed to be upon fome Irregularity committed by. the Ecclefiaftical Judge in his proceeding : fo that the Appeal was from the Abuie, and not from the Junto* iction. Befides the Secular Courts were to re-hear the Caufe ac- cording to the Canons, and lb by this means they poflefTed themfelves of it, but gave Judgment according to the Com- mon Law. Thefe Appeals to Rome were very frequent, which at flrft were rarely brought, but upon great and extraordinary Oc- casions, which feldom happened ; and it was an un- Uiual thing in the Reign of King Stephen . For when a Dif- ference happened between Henry Bifhop of Winton, that Kings Brother, and the Archbifhop of Canterbury, becaufe Winton was made the Pope's Legate, which the other thought to be an Encroachment on his Right as Legatus natns : The Legate appealed to Rome, which the Writers of that Age af- firm to be the ruft Appeal thither ; but that may be a Mi- Hake ; however Gsrons and Huntington tells us, that in An- glia Appellation* s nonerantin ufi; and that thev were inaudita here donee Henricns dum legdtus effet malof ho crude liter intrstfiu Bu: the time was npy* come, when the Pope's Ahthority was to befuppreiTtd here; and the Bifhop of (I) Sarum tells uc by what Degrees ; as firft it was difpuu-d, what Power he had to difpence with the Laws o[ God; from that they inquired what JuriTdi cation he had in the Caufes of Men ; upon which followed the Conviction of the Clergy in a Pre- irmnire ; for' this led the Parliament to controvert his Right to Annate^ which they condemned, and then naturally fol- lowed the Condemning all Appeals to Rome. And row I (hall, give a fhort Account of that Statute of (0 Hut. Kciornv a P. 156. " ' ' _ 24. ft Appeal 39 24. H. 8. cap. 12. by which all Appeals to Rome were prohi- bited ; a Statute which is rounded upon the natural and in- dependent Right of our Kings, to do Jultice to all their People ; a Statute by which the ancient Right of the Crown was re-afTumed ; for tho' that Right was given up by King lohn, yet it was always claimed by his Su.caflbrs , and iometimes with that Courage, as to commit the Appel- lants. The Preamble of the Statute takes Notice, that the Crown of England is Imperial, and that the Nation is a compleat Body within it felf, with full Ppwer to adm'inilfcr Jufhcein all Cafes whatfocver ; and that this was a Truth which ap- peared by many ancient hhfforiesand Chronicles. That former Kings of England and their Parliaments, had made Laws, by which they preferved the Prerogatives of the Crown, and the Liberties of the People, from any Vio<- lation by foreign Princes or Powers; that notwithstanding fuch Laws, many Inconveniences had happened by reafou of Appeals to Rome, both in Expences and Delays of Suits, therefore it was enacted, That all Caufis Tejlamentary, and Matrimonial Divorces, Rights of Tythes , Oblations and Obventions, fhall be adjudged within the King's Authority, and not elfewhere ; notwith- flanding Appeals to Rome, or any Inhibitions or Bulls from thence ; that if any Spiritual Perfons refufed to execute Sen- tences given in their Courts, for fear of any Cenfures from Rome, they fhould be committed for a Year, and fined at the King's Plcafure ; and if any Perfon procured or execu- ted any Procefs from Rome, he fhould be guilty of a Pre- munire. r From the Archdeacon or his Official to But by this ^ the Bi^°P of theDiocef3, cr his Commit pSre^l- J ^From the Commiflary to the Dean of lowed in \ < the Arc*les> an(i from ^]m to the Arch- thefeCafes* ^ kiftiop ^ the l:>rovmce, whole Betermin*- I Hon [ball be final, the Appeal muftb.1 with- J Lip Fifteen Days after Sentence. But fome Alteration was made ip this lait Matter, in the. very next Year, (viz.) that Appeals from the ArchbifhopNs Court fhall be made to the King in Chancery, where the Lord Keeper is to ilTue out a Commiflion under the Great Sea', to certain Perfons named by the Kine3 frorri whom there (hall D 4 be 40 appeal* be no farther Appeal ; and this is called the Court of Delegates. One would think by thefe reftri&ive Words, that a Sen- tence given in that Court ftiould be definitive, but yet 'tis otherwife : For the Queen, (jn) even after fuch Sentence, may grant a Commiffion of Review ; becaufe the Pope could do it by vertue of the Canon- Law ; and what he could do by vertuc of an uiiirped Supremacy the Queen may do, becaufe 'tis a legal Right vefted in the Crown; this is the Reafon given by my Lord Coke, who tells us he was Attorney-General, and did maintain this Prerogative. Tis certain this is a Prerogative vetted in the Crown 5 but my Lord Coke's Reafon is not conclufive, that becaufe the Pope exercifed a Power by Uiurpation ; therefore the Queen may lawfully ufc the like Power. I know Commijjlons of Review arc frequently granted not- withstanding the Statute enacts, that from a Sentence of Commif fioners Delegate, there ihall be no Appeal ; and that the Practice hath obtained againft an exprefs and pofitive Law j but it was not very clear at firft, for it was deba- ted in * Hoi! j weirs Cafe, where Juftice Fenner denied my Lord Cokes Reafon ) becaufe the Authority of the Pope was abrogated, and Appeals were retrained by thefe Statutes • 'tis true, he cited out Goodmans Cafe where it was fo adjudged, which I find reported by another Name in myLord Dyer* and becaufe 'tis probable my Lord Coke grounded his Opinion upon it, I fhall only State it. The Deanry of Wells (n) was difTolved by A6t of Parlia- ment, and a new one ere6ted ; and the King appointed Good- man to be the firft Dean, who was afterwards made a Prebendary of Wivelfcomb being a Prebend of the fame Church, for which he was deprived by the CommiiTary of the Bifhop of Bath and Wells ; becaufe by the Canon-Law, he could not hold two fuch Dignities /hM &femel'mthc fame Church. He appealed to the Archbifhop, who confirmed the Sen- tence, then he appealed to the King. in Chancery; and pen- ding this Appeal, the Kins;- granted the Deanry to Turrier ; and upon the Death 0^ Ed. 6. Goodman obtained a Commif- fion from Queen Marylo the Delegates who reftoredhim. Now tho' the Statute faith, that a Sentence given by the Delegates, fhal! be definitive; yet Turner obtained a Com- mifion of Review from Queen Elizabeth, and the Commif- fioners reftored him, notwithftanding Goodman objected a- sainft it as invalid, for the Reafon abovementioned ; but the (w»J 4 Inft 341. * Moor 4*1. 4») Dyer 27}, Ob- appeal* 4i Objection was over-ruVd, becaufe the Queen hath all that Authority which the Pope (0) had formerly as Head of the Church; and he did grant Commijjlons of Review, therefore She may do it: Not becaufe he had done it by Ufurpation, but becaufe this Power was originally in the Crown, to which it re- verted as foon as that ufurped Authority of the Pope was abrogated. But to proceed ; all Appeals to a Court of Delegates, (/>) and grounded on the Statutes before-mentioned, murf be upon Suits begun and determined in the Spiritual Court, or in fome Court exempted from the Jurifdictton of the Ordinary ; for if the Suit is before any Spiritual CommiflTioners ; as than of Stephen Gardner (q) was, who was deprived of his Bi- fhopnckof Winton, by Ten Commiflioners appointed by King Ed. 6. in fuch Cafe the Appeal will not ly to the King in Chancery, fo as for the Lord Keeper of Courie to grant a CommifTion of Delegates ; but it mutt be to the King gene- rally, as he is the Supreme Head of all Ecclefialtical Jurif- didion ; and there muft be a Warrant under the Sign Manual, before he can grant a Commiffion in fuch Cafe. The faid Statutes allow an Appeal from the Dean of the Arches to the Archbifhop of the Province, but do not men- tion in what Court; therefore it hath been a Qucftion, whether an Appeal to him in Curia pnerogatha fua de Arcubus (r)\s good or not \ and it was held, the Appeal be- ing to the Archbifhop thofe Words in Curia Prxrogatha are Surplufage. (3.) There is another Cafe in which appeals are allowed by that Statute ; and that is, if it concerns the King him- felf, then, the Party may appeal from any of the Courts be- fore-mentioned, as from the Arches or Delegates to the Up- per-Houfe of Convocation. Thefe are the three Caufes for which Appeals are allowed by that Statute, which provides that, if an Appeal is pur- chafed contrary to that Act, the Party fo profecuting it, fhall be guilty of a Premunire. The next Year after the making that Law, (/) all Ap- peals to Rome were exprefly forbidden, under the like Penal- ty ; but by 13 Eliz.. cap. 2. 'tis made High-Treafon. Thefe Laws were but a Recognition of the Ancient Rights of the Kings of England 5 for by the Conftitutions of Ciaren- (0) 2i H. 8. cap. 1. 1. Eliz. i. (/>) z Rot Abr, 232. (3) 4 Inft. »4°« (r) Dyer 240, C/J 25 H, 8. can. i9. don 4* appropriations. don Anno. 10. H, 2. (0 'tisacknowledgedfo to be, where the fame Method of Appeals from one Court to another was appointed, and no farther without the King's exprefs Leave. Tis likevvife tobeobferved, That by the firft Statute, viz,\ 24. H. 8. appeals in the three Cafes before-mentioned, viz,. Teftawentary, Matrimonial, and for Tythes, fhall be from the Archdeacon to the Bifhop, &c. But by the next Ad in the Year following "tis provided, That all manner of Appeals, of what Nature foever, (hall proceed gradatim in the like Method. Appropriations. w HEN BenediEiy who was the Father of thofe who profefled a regular Life in the Weflern Church, retired into a folitary Place in Italy, from thofe Tumults which happened under the Reign of Juflinian, and gave himfelf wholly to the Service of God, he foon acquired a great Re- putation for his Holy Life ,- and feverai Perfons came and iubmitted themfelves to thofe Rules, which he impofed on them for the Government of their Lives, fo that they grew into a Fraternity ; and the Princes of thofe Times admiring their Holy Lives and Converfation, built Houfes for them which were called Monasteries ; and were fo liberal to them, that they appropriated prefentative Benefices to thofe Religious Houfes, This was frequently done here after the Norman Tnvafion ; the Secular Clergy being then Saxons or Englifhmen, but moft of the Nobility Biihops and Abbots, being Normans, they had no manner of Regard to the Secular, but reduced them as low as they could to enrich their Monatteries ; and this was the reafon of fo many Appropriations. But fome are of Opinion, that 'tis aQneftion undecided, Whether Princes or Popes firft made Appropriations, tho'the Oldeft of which we have any Accompt was made by Princes? As for In- fiance; By the Saxon Kings to the Abby of Cropland \ by Wil Ham called the Conqueror, to Battle- Abby ; and by H. 1. to the Church of Salisbury. Tis true, the Popes who were always jealous of their u- furppd Supremacy in Ecclefiaftical Affairs, did, in their De- cretals, afiume this Power to themfelves, and granted Priviledges to feverai Religious Orders, to take Appropria- tions from Lay- men. 0) Preface to g Eep. 1 But 3ffpp2op?fatfQtt& 43 But becaufe the making an Appropriation was a thing meerly Spiritual, the PatYon ulualty petitioned the Bifh< p to appropriate the Church j but the King was firft to give Licenfe to the Monks that Quantum in nobis eft, the Bifhop might do it ; and then he made the Charter of Appropria- tion in thele Words (a) Amhoritate noftra or dinar ia Ecclefiam parochialem de H. priori & conventui L. anneft'imns appropriamus & unimus per pr&fentes, falvis nobis ®* Succe jfonbus noftris jure & author itate font ificali. But the King being fupreme Ordinary, (at) might of his own Authority make an Appropriation without the Con- fent of the Bifhop, tho' this was ieldom done. Appropriations at firft were made only to Spiritual Per- fon=, inch as were qualified to perform Divine Service ; then by degrees they were extended to Spiritual Corporation?, as Deans and Chapters, and laftly to Prioreffef, upon a Pre- tence to fupport Hofpitality ; and lea'i preaching fhould by this means be neglected, an Invention was found out tofup- ply that Defect by a Vicar ; and it was left to the Bifhop to be a Moderator between the Monks and the Vicar, for this Maintenance out of the appropriated Tythes ; for the Bifhop could compel the Monaftery to which the Church was ar- propriated, to fet out a convenient Portion of Tythes, and fuch as he fhould approve for the Maintenance of the Vicar, before he confirmed the Appropriation. o Tis true the Bifhops in thofe Days favoured the Monks too much, and therefore they connived at their fetting out a Portion of fmall Tythes for the i^icar, and permitted them to referve the great Tythes to themielves. This was a Fault intended to be remedied by the Statute 15 R. 2. cap. 6. by which it was enacted ; that in every Li- cenfe made of an Appropriation this Claufe fhould be con- tained, (viz,.) that the Diocefan fhail ordain, that the Vicar fhall be well and fufriciently endowed. But this Statute was eluded ; for the Abbots appointed one of their own Monks to officiate, and therefore the Parlia- ment, Anno. 4. H. 4, cap. 12. provided that the Vicar fhould be a Secular Man canonically inftituted and inducted into the Church, and fufficicntly endowed; and that no Regular fhould be made Vicar of a Church appropriate. But Upg before the making tJieie Statutes, I find the Kings of England (y) made Appropriations of the Churches of Fe- in) 5 Rep. Cawdries Caff., {x) Plowd* 4$ 6. (-y) Horn, Chron. de rebus geftisAbbat Sindii Aug'uftihi. , verfham 44 $pp?0P?tatioit0. verfham and Middleton in Kent3 and other Churches to the Abby of St. Attftfo in Canterbury, by thefe Words : Gntefimtif, &c. pro nobis, &c. -^4fi C^* conventm, &c. ^«o4 jpy? ecclefias prtdicl appropriare ac eas pc appropriates in proprios ufas, tencre pojfunt fibi& Succefloribus inperpetmm: The like was done by feveral of the Norman Nobility, who came over with the King ; and upon whom he befto wed large Mannors and Lands; and out of which they found Tythes were then paid, and fo had continued to be paid even from the time they were pofletfed by the Saxons 5 but they did not re- gard their Law of Tything, and therefore they held it rea- fonable to appropriate all, or at leaft fome part of thole Tythes, to thoieMonafteries which they had founded, or to others as they thought fit ; and in fuch Cafes they referved a Power to provide for him, who ferved the Cure 5 and this was ufu- ally paid to Stipendiary Curates. But fometimes the Vicaridges were endowed, and the very Endowment was expreffed in the Grant of the Appropria- tion (viz,.) that the Church fhould be appropriated, upon Condition that a Vicaridgc fhould be endowed; and this was left to the Care of the Biihop. But whenever the Vicar had competent Subfiftence by En- dowment, the Monks took all Opportunities to lelTenit; and this occafioned feveral Decretals, prohibiting fuch Ufage without the Biftiop's Confent, and that no Curtom fhould be pleaded for it, where he that ferved the Cure had not a com- petent Subfiftence. And it hath been a Queftion, whether an Appropriation is good where there is no Endowment of a Vlcaridge, becaufe the Statute of H. 4. pofitively provides that Vicaridges (hall be endowed. But it is now fettled, that if 'tis a Vicaridge (*,) in Repu- tation, and Vicars have been inftituted and indu&ed to the Church, it (hall be prefumed, that the Vicaridge was origi- nally endowed. Thus much for the Tythes ; but the Abbot and Convent had not only the Tythes of the appropriated Churches, but the Right of Patronage too ; for that was extincl, as to the former Patron by the Appropriation, unlefs he had referved the Prefentation to himfelf, and that made the Advowfon dif-appropriate, and the Church prefentable (4) as before, but not by the old Patron, but by the Abbot and Convent, Cro, ajfa, jifr. H«4*? |i|r W Stflk a«i, who who were then bound upon a Vacancy, to prefent a Perfbn to the Bifhop. Sometimes the Bifhop would refufe the Perfon prefen- ted, unlefs they confented to fuch an Allowance for his Maintenance as he thought fit, and therefore they would pre- fent none. This occafioned the making another Decretal, which gave the Bifhop Power to prefent; but this did not often happen, becaufe, as I obferved, the Monks were favour'd by the Bi- (hops ; I mean the poorer Sort, for the Rich would not ac- cept his Kindnefs. They always got their Appropriations confirmed by the Pope and their Churches exempted from the Jurifdi6tion of the Bifhop. But now all thofe Exemptions are taken away by the Sta- tute 31 H. 8. cap. 13. and the Ordinary is reftored to his an- tient Right. • Before I fhall give an Accompt of that Statute, I think it not improper to mention the Forms of Appropriations both be- fore and fince that time. A Licenfe being; obtained from the King as fiipreme Or- dinary, and the Confent of the Diocefan, Patron and In- cumbent, thereupon the Biihop made the Grant in thefe Words : Authoritate nofira ordinaria Ecclefiam parochialem de H. priori & conventui L. anneclimus appropriamus & animus per prafentes, &c. as before is fet forth in this Title. But after the Statute the Form was in thefe Words : (a) Sciatis quod ms dedimus, &c. Decano & capitulo ecclefia, Cat he- dralis C. &c. advocationem, &c. RetlorU & eccle/i) St. Peters Church in Cornhill, till King Ethelbert built St. Paul's ; and fo it remained till the Time of the Saxons , when Auguftine tranflated the Pall to Canterbury, which has continued the Seat of an Archbifhop ever fince : But before the coming of St. Aujlin thefe Britijb Bifhops acknowledged no Superiour in Spirituals, but the Archbifhop of Land 'affe, under whofe Government they were, till that Archoilhoprick was tranflated to St. Da- vid's, and afterward?, in the Reign ofH.i. made Sub; eel: to the See of Canterbury, as likewife were the other Bilhopricks in Wales at the fame time. But Tork remains a Metropolitical See to this very Day, and the aforeiaid (i) Faganus is mentioned by our Hittorians to be thefirft Bifhop thereof. The King likewife finding Twenty Eight other Cities of great Note, where other Pagan Priefls called Flamins were ieatcd, a nl where Temples were dedicated to their Idols, (h) Sciden Polyolbion 119. (0 Heyl of Epifc 26;. c n- Converted them all into Chriftian Churches, and placed fo many Bifhops there ; and this is the firft Account of any Archbifhops here, tho' fome learned Men are of Opinion, that an Archbifhop is a Dignity as ancient as the Apoftles Time, for there were Prim Epifcopi then, tho3 the Name of Archbifhop was not known till fome Ages af- terwards. That the Apoftle himfelf gave the firft Modet of ihis Go- vernment in the Church, by vefting Titus with a Superintend dency over all Creet, that thefe Governours were afterwards called Princes and Monarchs of the Prices ; but becaufe thefe were Titles applicable to temporal Powers, it Jook'd as if they affected fecular Grandeur, and therefore thefe Applications were prohibited by fubfequent Councils, and ibon after they were called Archbifhops, The learned (/-) GloJJhgrapher tells us, it was a Title firft known in the Ea,t part of the World, and that one Sywion% who lived in the Reign of Confiantine, was called by Soc- men the Hiftorian Archbifhop of Seleucia, becaufe he pre- fided over the chief Cities of Ptrjun That tope Zepherinm was the firft who was called Arch- bifhop, that there were afterwards Metropolitans in the great Nicene Council, but that the Archbifhop prefided over theni as well as over the Bifhops ihemfelves ; and as to this mat- ter 'tis certain, that, when Herefies and Schifms broke in upon the Church, which were chiefly occafioned by Church- men themfelves, it feemed necelTary to fix a Metropolitan in. every Province, and Jtis as certain that this was done in the 3d Century; for the Apoftolical Canons, which were th£ Ruk of the Greeks Church, in that Age, mention a Chief Bi- P?op in every Province. But to return ; thofc who oppofe this Story of Lucius fay, That he could notbe a Kin?; over all Britain^ becaufe it was then a Roman Colony ; and 'tis improbable that the Heathens fhould entruft him with fo great a Power to rule here, crfuf- fer one who was but a Tributary Prince himfelf, to make fo* inany Chriftian Archbifhops and Bifhops at once, in or- der to propagate a Religion which they themfelves did not tolerate. This feems to be a ptaufible Argument, but Dr. tfejlln (I) an- fwers it by telling us, that L*tius vertU} who was then an jJjf&cUtein the Empire, after he had put an end to the Par- ih'un War., gave the Government of thole Kingdom5, which 'J % - . $) Efeylo'f Epis a at, fa ni he had fubdued, to tributary Kings, and the Government of Provinces to Lieutenants. So that Lucius might be a King notwithstanding the Nati- on was tributary to the Rowans, and Archbiiliop \U/her (m) proves there was luch a King, by the Coins which he had ieen both of Gold and Silver, having an Image of a King, and a Croisonthem, and the Capital Letters LVC, But if he was a King he ruled only in Sttffex and Surrey, becaufe that Fart of the Briu/h Nation was not inhabited by the Romans, for none of their Highways, Buildings, Urns, Coins, or Inscriptions, were at any time found in thofe Parts, except towards the Sea- fide, and there they hadfome Forts and Garifons, and particularly at .Aldrington near Shore bam in Suffex, which was then called Fort us Adurni, So that being fecure of the Coalts, (») and having Soldiers d if per fed in the Colonies about them, and being near London, they might permit a Britijh King to govern thole Parts, tho' •they would never fuffera Native over the whole Nation. But Heyiin has given no Anfwer to the other part of the Story of making io many Archbilhops and Bifhops here, he rather thinks it too great a Task for a Tributary Prince to fpread Chrifuani y ib far at once over this Illand, and there- fore was of Opinion, that the Monkifh Writers attribute thbtohim, as being the fir ft. Promoter of fo great a Work, as Rome is laid to be built by Romulus who never built half of it : Upon the whole matter, there is not much Credit to be given to this Story of the Archflamins and Flamins, becauie we do not rind the fir ft of thefe Words in any Rowan Hitto- ry, it letms rather to be an Invention of Jeffrey of Mon- t mouthy who would have in every City feveral Colleges of Flamns, according fcp the Number of their feveral God?. The Number of the Archbifhops and Bifhops hzxc ieerm more properly to relate to the civil Form of Government, which was. ettabliuSed in the Roman Empire, which Empire was divided int > Fourteen great Portions called Dioceflcs, and thofe were fubdivrded into Provinces, in which there were feveral Cit Now wherever the Heathens had a Dcfenfor Chuatisy the Chriftians, when they got that City, did ordain a Bifhop • and in every Province where the Romans had a Prefident, there the CbriHians did place an Archbifhop, whofe Seat be- ing commonly in the chief City of the Province, he was. from -j"-j"-"" i — — (1») U&er jfo^nofordii's 39, 4*, («) Scjll. prigin. Bjjuo, 6i> 62. theus? thence called a Metropolitan ; and in every Diocefs where the Romans had a. Lieutenant, there the Chriltians had a Primate, and feated him in the fame City with the Metropolitan, So that Britain was then a Diocefs divided into three Pro- vinces, in which there were twenty eight Cities, > and of thofe Cities the three above-mentioned were the chief, and from thence we had Archbifhops and Bifhops here. We have now in England two Archbifhops and ho more. CANTERBURY YORK. And Firft 1 (hall give an Account, ( i.) When the Archbifhoprick df Canterbury was founded. (2.) I {"hall treat of the Stile of the Archbifhop* (3.) Of his Precedency before TorL (4.) Of his Privileges* (5.) Of his Jurifdiction. £.] (2.) Next I (hall mention his ftile. He had anciently Primacy over England and Ireland, and all the Bifhops of the laft Place were confecrated by him. By the two firft Norman Kings he was declared' to be Me- tropolitan, and was afterwards (tiled by Urban the 2d. AU terms orbis Papa. He is called by Eadmerus, Princeps Epifcoporum AnglU pon- tifex fummns Patriarcha, and the Records of Ecclefialtical Matters were dated Ann6 pontificates neflri prim. He had, tho' not at firft, a perpetual Legantine Power an- nexed to his Archbilhcprick, and was therefore called Lega- tes naita. He had fome Marks of Royalty as to be Patron of the Bifhop o( Rochefter, to coin Money, &c. Since the Rtf rmation he is (tiled Primate and Metropoli- tan of all England, and Archbifhop Cranmer was the fir(t who had this Title. ®t l)tB $2cect>cnep.] (3.) Next as to Precedency, I find there have been ancient Contefls between thefe two Arch- bifhops, about the Oath of Canonical Obedience and Pre- cedency. Thus in the Reign o^ William the Conquerour, Thomas, then Lord Archbifhop of Tork, came to be confecrated by Lan frank Archbifhnp of Canterbury, who demanded of him a Declaration of his Canonical Obedience in writing, .and that he would confirm it by Oath. But Tork refilled it without iome pofitive Proof that it was his Duty fo to do ; thereupon tiie Matter was referred to the King, who ordered Turk to iiibfcribe the Declaration, which he did, but with a Protedation that it fliQuld not be prejudicial to-his SuccefTors without better Proof. This was again demanded by Archbifhop Anfelme in the Keign of Hiu ,(p) and the King, after the Death of that Archbifhop, commanded the Elect of Tork to acknowledge Canterbury as Superior before he fbould be confecrated. AbQU;* atcljbifljop^ si Abtfut Seven Years afterwards, and in the Reign of the fame King, the Controverfie was renewed by Thar ft an of Turk ; and the King declared, that if he would not acknowledge the Superiority to Canterbury, he (hould not be cronfecrated, which York refuted, and went to Rome, where he was coniecrated by the Pope himfelf; and thus, notwithffanding all theie iolemn Determinations the See of York became independent, and this made William Corbell, who was Archbiinop o[ Can- terbury, take a Journey to Rome, to get the Character of Le- gate, which he obtained, and was the firtt Archbtfhop upon, whom that Honour was conferred ; and by this Means he fe- cured the Superiority, and did afterwards Jure Legationu vifit the Province of York, and fummoned that ArchbAlhop and his Clergy to Councils, and would not lufkrhim to car- ry up his Crois in his Province, when he either attended thofe Councils or the Parliament, and therefore the King, to. preferve the Peace, did ufualiy lend Writs to the Archbiinop of Canterbury, prohibiting him to difxurb the other upon this Occafion. Pryn. 409. Hoveden75o. The like Contention there was alwavs between thefe two Archbifhops concerning Precedency, about which we meet with a very extraordinary Story, which was thus : In the Reign ot^ H. 2. one Huge/on, the Pope's Legatt, called a Synod at Wejiminfter, where all thcBifhopsof England met. The Archbilhop of Canterbury coming firft, late down at the right Hand of the Legate, and Tork coming afterwards, refufed to take the Seat vacant for him on the left Hand, and demanding the Place where (q) Canterbury fate, did, upon his Refufal, fit down in his Lap. This occafioned the Synod to break up in Diforder, and both Parties appealed to the Pope, and about four Years al- ter this Quarrel the Matter was fettled, that neither fhould require Canonical Obedience of each other, but that Tork fhould be Uibjee-t to Canterbury ^ and fo it continues to this verv Day. . $t* #?iWlcgcf •] (4.) In [the next Place I (lull mention feme of the Privileges of this Archbifhop. He hath a Privilege toquahfie Eight Chaplains, when the' greateit temporal Peer can qualih'c hut Six. He hath a Privilege to crown all the Kings of Enolanr! ; and before the Court of Wards was taken ' away, he ha J the Wardihip of thofe that held Lands of him. (*) q Tyor 407. E3 H« 54 9rcf)btffjop3* He hath the Privilege to have Prelates to be his Officers 3 as for Inftance : The Bidiop of London is his Provincial Dean. The Bp. of Wincbefter is bis Chancellor. The Bp. of Lincoln is his Vice-Chancellor* The Bp. of Salisbury is his Praecentor. The Bp. of Worceftor is his Chaplain. The Bp. of Roche ft er carried the Crofier before him in the Days .of Popery, Ql* Jorlfolittott.] (5.) Lajlly as to his jurifdiaion, 'tis to be obferved, that, next under the Queen, he hath the Supreme Government in all Ecclefiattical Matters within his Pro- vince ; but before the Reformation he had a larger Extent of Power, and. this appears by a Paragraph in the CottonUn Copy of the 'Sax on Annals, (viz,.) that at a Council fum- rnoned by Witbred King of Kent, he declared that- the Arch- fyifhopf ihpuld, Upon the Death of a Bifhop or Abbot, &c. choole another ; and that none fhould be elected, or confe- crared without his Confent ; and even at this time he hath a Right of confecrating all his Suffragans Bifhops, which Right he hath by Cuftom immemorial. In the aforeiaid Council it was declared, that as it was the King's Duty to govern the State, fo it was the Duty of the other to govern the Church. And as to this Matter he hath two concurrent Jurifdidtions, one as Ordinary of the Bifhop himielf within his Diocefs; the other as Superintendant throughout his whole Province of all 'Ecclefiaftical Matters, both to correcl and to fupply the Defects of the Ordinary • and therefore if he grant Inftitu- tier. 10 a Peculiar 'tis not void, becaufe he hath Jurifdiclion all over his Province,- 'tis true, 'lis voidable, like a SherifY exe- cuting Procefs (r) in a Franchiie which is not void but voidable. Before the Reformation he had a concurrent Jurifdie"tion with the Bi/hop of every Diocefs in his Province, but that was not by his Prerogative as Archbilliop, but as he was Legates natusj but now no Man is to be cited out of the Dio- cefs (/) where he lives. Upon the Death of any fuch Biihnp, the Cuftody of his See, and his Jurisdiction, devolves upon the Archbifhop by the Cuftom of England, but then he mtift hold his Courts wi.hin that Diocefs, where the infenour Ordinary had Ju- rifdidtion ; except in the Diocefs of Lendon, (t) where by (r) Ltv. 212, ■ ' (f) '23 H, 8. cap. 5). (t) Crc. Car. \ \o. Com- CompoGtion between the Archbifhop and that Biftiop, Suits arifing within his Diocefs, are to be determined in the Arches, and that is the Reafon that lie never vifits London. He may grant a Difpenfation to hold in Commendam, and generally in any Cafe where Diipenfations were grantable before the Statute, and therefore he maydifpenfe with a Clergyman to hold two Livings ; but fuch Diipenfations muft be licenfed by the Queen in Chancery, if the fir ft Living; is above 8 /.and this as well within the Province of York as of Canterbury. PanormitHn calls him Ordinaritts totim Provincix, for he bath a Jurifdi&ion Nolente Ordinario, as in Cafes of Visita- tion ; and this is a Right which is vetted in him by Cuttom 5 and when he vifits he hath Power of Cen luring any (**) Bi- fhop in his Province ; he hath like vile a Juriidiction in Caufes between Parties, as in Cafes of Appeal, where there is a fuppofed Default of Juftice in the Ordinary, and this is likewife a Right which he hath by Cuitom time out of mind. When he vifits aninferiour Diocefs O) if he Should inhibit the Bifhop during fuch Vifnation, and he fhould happen at that time to have a Title to prefent by Lapfe, he cannot do it; but he mult prefent the Clerk to the Archbifhor), becaufe during the Inhibition the Biihop's Power is fufpended. He hath exempted Churches in feveral DioceiTes not vifita- ble by the Ordinary, but by himlelf alone. He hath an antient Right to preiide in all provincial Councils of his Suf- fragans, which formerly were held once in a Year, but have been difcontinued a long time, fo that his Power of ex*- amining things thro' his Province is now devolved to hi* Courts. Then as to the Eftates of dead Men, if there is no Will, and the Intefiate hath Goods in ieveral DioceiTes, the Admi- niitration belongs to the (?) Archbiihop; but if there is a Will, and the Teliator had Goods of the Value of 5 /. out of the Diocefs where he died, or 10 /. within the Diocefs of London • or if he was a Bifhop, the Probate of fuch Will mud be in the Prerogative Court Of the Archbifliop otYOR Kf Some Antiquaries will have it, that the Archbifiiop o£ York was original I y Primate of the Rritijb Church ; fortho' Lon- don was a Place of great Trade, yet it was never a Roman, (*) Bob. 1 8|. (x) 2 Bfil Abr. 357- (7) Si4- 90, '6 ^ Colo*'/, 5 6 atcfjDeaeojt; Colony, or a Seat of the Roman Emperors as Tori was, where boih Severns and Conjiantius Chlorus lived and died, and where Confrantine the Great was born ; and from hence they infer, that where the Emperors refided that was the molt likely Place to have Preeminence above the reft. I cannot think this to be^ a tolerable Reafon for the Prima- cy of Tork, bat mud admit that it was a Seat of thole Empe- rors only for their Conyeniency in attending the Wars againll the Northern Britans ; it was a very agreeable Place for them to give Directions, and to lend Supplies to their Armies, and tfris was the chief Occafion of their living there. But the Preeminence of Places amongd the Romans, (z) tho* the v were a very Warlike People, did not depend upon the Military but upon the Civil Officers ; and that where the Court of Judicature was, there was alio the Metropolis, and that was at London, becaufe of its convenient Situation for Trade ; it was therefore called Augufta, which Word im- plies that it was the Imperial City of Britain, for none had that Denomination but thpfe which were Capita Gentium. But not to enter any farther into Enquires afrer iiich re- mote thing?, the Archbifhop of York is now {tiled Primate and Metropolitan of England, tho' not of all England, and was formerly Legatus natusto the Pope. He takes Place of all Peers except Canterbury and the Lord Chancellor. He grants Difpeniations of Non-refidence for fome time ; and that Perion? may be made Deacons, tho1 under the Age required by the Canon, and likewife for marrying in times and places not allowed by that Law ; and this all othes Bifhops may do, becaufe it was done before the Statute 2$ H. 8, cap. 2i. which gives them Liberty to difpenie in 4uch Cafes as formerly they ufed, Archdeacon. fin HIS is a Name of Dignity, and not only Co, but 'tis •*■ Dignitas principalis pop Epijcopum in Ecclcfia, and ufually hath i'ome Spiritual Promotion appendant to it ; and the Perlon himfelf hath formerly been cfieemed fuch an eminent Dignitary in the Church, that Philip one of the Sons of Lewis the GrofTe King of France, took upon him the Ofhce of Archdeacon of Paris. fz.) Still. Grig. Brit iss„ Tis atclfoeacain 57 *Tis certain that an Archdeacon is a very ancient Officer in the Church, for we find that An$afmy in the Life of Pope SixtHS the 2d. called one Lattrentins Archdeacon of Rome, who iliftered in the Year 260 ; and Pope Damafus, about one hun- dred Years afterwards, called Stephen the Protomartyr an Archdeacon, St. Jerome, in his Epiftleto Evagrws, (a) tells us that the Deacons chofe one of the molt Eminent amongft them whom they call Archdeacon; fo that 'tis plain there were fuch Offi- cers about the end of the 4th Century, but they had not then any Jurifdidtion in the Church, for they only attended the Bilhop at Ordinations and other publick Solemnities in the Cathedral?. Afterwards when the Annual Vifitations of Bifhops came to be inconvenient, becauie of the Grandeur and Charge of their Attendance and Retinue, when the Chorepifcopi were laid afide, becaufe they aflumed thofe Powers which did not belong to them, (for they were Perfonsonly appointed and confecrated in the Primitive Times for the Eafe of the Bi- fhops in Matters of Orders and not of Jurifdiction ,- bqt. be- ing always near their Perfons did encroach upon fome of their Powers) and when the Norman Bifhops, by reafon of their Baronies, were to attend the Kings in their Parliaments, then Dioceffes were firft divided in Archdeaconries, and the Bifhops fent Archdeacons in their Room, who vifited when they did not ; and Archbilhop Lanfrani, who lived in the nth Century, and in the Reign of William the Conqueror j is by fome affirmed to be the firft who gave an Archdeacon, any manner of Jurifdiction. But this doth not confift with the (b) Conqueror's Writ, which is thus, (viz,.) Nallus Epifcopns ivel ArchidUcontis de legi- bus Epifcopalib.pis amplius in hnndredo plac'ua teneat, which he tells us was an ufage in regno anglia ttfcj; ad mea tempora, from whence it may be inferred, that Archdeacons had Jurifdiclion here in the Times of our Saxon and Dani/h Anccftors. And Sir Henry Spelman is of the fame Opinion, that' Arch- deacons in thole very Days had a luperintendent Power over all parochial Parfons in every Deanry in their Precincls. What ever Jurifdiction they had before the Conqu.ft, it cannot be denied but that they had fome afterwards; for before the Clergy had any Proctors of their own they were reprefentid in Convocation by the Archdeacons, to whom they gave Letters of Proxy to act in their behalf. _ ... 1 11.-.,, 1 1 ..»..<■ H.»ll.-l^ UlUM • {a) Epift, 8 j, (b) Rights of Con. 3?I. 5:8 acc&oeacom Thus it was Anno, 22 H. 1. which is the firft Acccfunt we have of their being fummoned to the Convocation ; but Anno. 15. H. 3. they were fummoned by exprefs Name, (iftfc.) there was Ingens confithrinm Abbatum & Archdiacono- rum at St. Albans ; and Anno. 32. of the fame King he fum- moned Magnates fios nee Hon Arcbuliaconos, &c. This being the Original of ( for he is yicafiHs Epifcopi; and no longer ago than in Lyndwood's Time 'be had not power to pafsCenfures in his own Name, but for fome fmal 1 Fault, nor then neither, but where there wa$ a Cuftom to warant him fo to do ; he could not vitlt dc ■com*mi jure, but as the Ganonifrscall it, per moAumfcrHtat- ioms fir;jp!i:isy that is he could enquire into the Crimes but could not puniih the Criminals. But becaufe he hath in one Senfe, according to the Ca- fu'rfts, a cure of Souls, by vertue of his Office, thos 'tis in foro ixtcriori tantum & fine pa/hrali cura, and having Authori- ty to perforin minifterial Acls, as to fuipend, excommuni- - Want *?).$$• (rf)2&>I.Ren ijo* Jus, arcljBeacoru $9 cate, abfolve, &c. therefore by the Ecclefialtical Law lie he is obliged to refidence. But he hath no parochial Care, and therefore, an Archdea- conry is not comprehended under the Name of a Benefice with Cure ; for if one who hathfuch a Benefice accepts an Arch- deaconry 'tis not void by our Law, tho' 'tis ib by the Canon Law, and that may be the Reafon of the Provilo in the Statute 21 H. 8. cap. 1 3. by which 'tis enacted, that it fhall not be taken under that Name. And as he hath a Jurif iition in certain Cafes, fo for the better cxercifing the lame, he hath power to keep a (0 Court which is called the Court of the Archdeacon, or his Coin- mitTary, and this he may hold in any place within his Archdeaconry, and there he may determine Spiritual Caufes, but fuch Judgment is not final, for there lies an Appeal from his Sentence to the Bifhop of the Diocefs, and not to the Arches, betatife the Archdeacon's Power was derived from the Bifhop, and therefore bis A6ts muft be fubordi- nate to him. There is an Officer belonging to this Court, called a Re- gifter, (/) whofe Office concerns the Administration of Ju- ftice, and therefore the Archdeacon cannot by Law take any Money for granting it, if he doth the Office will be forfeited to the Queen and not to the Bifhop ; that is, the Grant is void, and becaufe the Archdeacon hath by this means dtfa- bled hiinfelf, therefore the Power to fi>ply the Office is de- volved upon the Queen as Supreme Oidinary. LajHy9 He claims Synodals, which is a Tribute paid to him by the inferior Clergy for his Eafier Vifitation ; 'tis paii by no certain Rule that I can find, but by ibme ancient Taxation of which there are no Foottieps. Sir Simon Degg is of Opinion, that- it may be paicl as a Contribution to their Charge in attending the Synods, they being, in former Times, cliofen by the Deacons, and tent thither as their Reprefentatives ; But if I may have leave toconie&ure it. was thus: Tis a Tribute originally given to the Bifhop, at the aflembling a Synod within his Diocef, which he was formerly obliged to do once a Year, and then a certain Sum was paid to him by the Clergy, as a Token of their Subjection. Thofe Synods were ufuaily held in the Cathedral?, and the Bifhops prf.fided in them, but after the Conqueft his Attendance being required at the King's Court, 'tis proba- (0 ^Inft. 3 32. Hob 16. 24 H. g.wp. iii ' (J) i Lev. 28$. 2 Doic 187. ' h blc 60 9rclje0. ble he might delegate Archdeacons to fit in his Room, for they being always near the Bifhop had very much improved their Intereli and Power with him, and from thence 'tis that Archdeacons claim Synodal* at this time De jure communi Ecclefiaftico, which they originally had by Agreement and Compoiition with the Bifhop; which Compofitions being now loft, and the Duty being conftantly paid, they now claim it by Prefcription. But Rill they pay a yearly Sum to the Bifhop, Pro exterior* Jurifdifione, and this is called Preftation Money. Arches. HTHIS is the ancient Conffiory Court of the Archbiihop of ■*- Canterbury, and 'tis called Curia, de Arcubus from Bow- Church, where it is kept; and that Church was fo called, becaufc the Steeple was formerly raifed upon Stone Pillars built on Arches like fo many Bows bent. Here Spiritual Caufes are debated by Civilians, and deter- mined by the Judge who is called Dean of the Arches, be- caufe he hath a peculiar Jurifdi&ion over Thirteen Parishes in London, which is efteemed a Deanry, and exempt from the Jurifdiclion of the Bifhop of London, of which the Parifh of Bow is one and the chiefeft. But the Juriididion of this Judge extends thro* the whole Province of Canterbury ; fo that, upon an Appeal made, he fends out a Citation to the Appellee, and his Inhibition to the Judge, from whofe Sentence the Appeal was made, but he is prohibited by the 4th Canon to cite any one who doth not dwell in the particular Diocefs, or peculiar of the Arch- biihop, without the Licenfe of the Diocefan firrt had and obtained, except only in fuch Cafes which are exprelTed and refervedin the Statute 23 H. 8. cap. 9. that is for Herefie, &c. the Judge offending, ihall be fufpended from the Exer- -cife of his Office for three Months. My (g) Lord Cole tells us the Dean of the Arches hath ordi- nary Jurifdictton in Ecclefiaftical Caufes at the fir!* Inftance of the Party, and by way of Appeal thro3 the whole Pro- vince of Canterbury, but that his Power to call any Perfon out of any part of his Province, who lives in another Dio- cefs, is now retained by that Statute^ unlefs it be upon an Appeal. Artteeu 6i Articles of Religion. I N die Reign of H. 8. there was a Book published, which ■■-was called 7he necejfary Erudition of a CbrijHan Adan ; the Defign of it was to expole the Errors of the Church of Rome, and to condemn thole Doctrines which had been generally received by the People, but there was no AiTent or Subscrip- tion required to this Book. In the next Reign, when the Worfhip was more reformed^ then were the Articles of Religion prepared ; and 'tis gene- rally thought, by Archbifhop Cranmer and Bijhop Reydley • the Manufcript was ligned by both Houles of Convocation, and publifhed in the lalt Year of Ed. 6. Thefe Articles were reviewed by the Bifhops of both Pro- vinces, and by the Convocation aflembled in the 4th Year of the Queen, and were then re-publiuhed ; and about Nine Years afterwards they were re-viewed a fecond time by Arch- bifbop Parker, and fubfcribed by him and Ten other Bifhops ina provincial Synod, as containing true and found Doctrine 9 and thefe original Manufcripts were given by that Arch- biiliop to Corpus Cbrifti College in Cambridge, where they now remain. They are Thirty Nine in Number, and are Articles of Church Communion as to the (h) Laity, and by the Canon 'tis decreed, that whofocver fhall afnrm that they are in any Part fuperftitious or erroneous, or fuch which may not with a good Conference be fubfcribed, fuchPerfons is ipfofacloex- communicated. This Canon relates to the whole Body of the People, in which the Clergy mult be comprehended : And the learned Bifbop of Sarum tells us, that every Perfon who, doth not think fome Propofition in them to be very erroneous, even to fuch a degree that he cannot bold Communion with thofe who ailent to them, mud, and is obliged, to continue in our Communion. But the Legal Subfcription is enjoined by a (i) Statute which eftablilhes thefe Articles, and requires every Clergy- man to declare his AiTent, and Jubfcribe them in the Prejence $f his Ordinary. This being done he mnft bring a Testimonial or Certifi- cate from the Bifriop of fuch his AiTent and Subiciiption, and 6z articles of Eelfgfotti and muft publickly read the Articles in the Church where he is to ferve, and declare' his unfeigned Aflent to the fame, and this he mull do within two Months after his Induction, accounting twenty eight Days to the Month, or elfe he is ipfo fatlo (k) deprived, and a general Pardon will not reftore him. And this Subfcription muft be confidered as a Declaration of the Opinion of the Subfcriber ; and therefore if he declare that he fubicribes and aflents to the (/) Articles, fo far forth as they are agreeable to the Law of God 'tis not good. Tis true, the Form of the Subfcription is not let down in the (m) Statute, but by the Canon 'tis e'xprefly required, that he fubferibe and allow the Book of Articles, and that he acknowledge every Article to be agreeable to the Word of God. Thofe who diffent from our Church cannot fubferibe to the ^d Article as agreeable to the Word of God, (vU.) As Chriji died for us, and was buried, fo alfo is it to be believed that he went down into Hell, for they cannot believe the Local De- fcent of Chrift into Hell, which thefe Words feem to im- port, becaufe none of the Evangelifts mention it; and they fay 'tis improbable fo remarkable a Traniadtion would have been omitted by them, and by the Fathers who lived in their t)ays and foon after them. The aforefaid Bifhop of Sarurn tells us, that thefe Words, (viz,.) He went into- Hell ) will admit of three different Con* /inactions both in the Letter and and in Grammar. (1.) The Local Defcent, and that is implied by the Englifh Word Hell. (2',) The Grave according to the Signification of the Hebrew Word. (3.) The Place of Spirits feparated from their Bodies ac- cording to \\\t Greek Word. So that a Man may fubferibe to this Article, if he appre- hend it in either of thefe Senfes. But to return to Subfcriptioris required by the Clergy, Sir Symon Degg advifes them" to have fome credible Witnefles prefect when they fubferibe before the Bifhop; and that thofe Witnefles do atteft the Bi Chop's Certificate of fuch Sub- scriptions; and that they get two Books of Articles, and give one to a Parifhioner to read with them, and them to attefi the Book after this manner : %k) 2 Lev. 101. CrQ. Eliz. 690. 8 Rep. ap. (*) Cro. K\i%, 252, Noy. 150. I Mi articles of Ecligiatn 63 t R. B. was prefent an fuch a Day in the Parflli Churcli of H . in the County of S. and heard J. S. then and there read the faid Thirty Nine Articles during the time of Di- vine Service, and declare his unfeigned Affent and Content to all the Matters therein contained ; and he adviies the Clergyman to keep the Articles thus fubfcribed by the Pa- rifhioner. But if he neglect till the two Months are expired, then he advifeshim to get the Queers Title Ad'Corroborandum as he calls it, and afterwards to perfect his former Neglect. In thefe Cafes of Deprivation the Patron mud have perfo- nal Notice from the Bifhop, and the firtt Cafe which hap- pen'd upon this Statute was to this very purpofe, and it was about five Years after it was made, which was this : One O) Tbwaites was prefented by an Abbot in the Reign of H. 8. and was afterwards deprived for not reading the Articles; the Biihcpof Grlijle, in whofe Diocefs the Benefice was, fens a Mandate to the Curate of that very Church to be read there, purporting that Thrvaites had not fubfcribed the Articles, and this was read in the Church and fixed on the Door ; but yet it was not a good Notice of the Deprivation, for the Bihhop ought to give perfonal Notice to the Patron before he could have a Title to prefent by Lapfe. AParfon having one(o) Benefice with Cure accepts ano- ther, to which he was inducted, but did not fnbfcribe the Articles after his Induction as required by the Statute •, the firit Benefice is not void by the Acceptance of the fecond, be- caufe he was never a lawful Incumbent on it ; for not fabferi- ling the Articles made his Admiflion to the fecond Living void, and by Confequence there was no Caule for loofing rhe firfi Benefice. But if after AdmifTion into the fecond (p) Living he had fubfcribed the Articles, then he had been perfect incumbent pro tempore, viz,, for two Months, tho* he had not read them ; andfo by taking the fecond Living the firlt was void ; and by not reading them within two Months after his Induction into the fecond Living that was void likewifc. About fix Years a ftcr Tlwaites\ Q) Cafe a Onare iwpedit was brought upon the Queens Title to prelent to the Rectory of Haver/ham m the Diocefs of Lincoln for that Afyton, the lad Incumbent had not read the Articles ; but becaule it was pi) Dyer 546. 0) Dyer 379. b. V-ugh. x»2. (>j Vau^h. 133- Hob- f>7i. (,«) l And. 6z, HOt 0 4 Ink 377; granting granting the Guardianship of Spiritualities, AdmiflToris and Inliitutions to Benefices, Sede vacante, and difpenfing with Bans of Marriage, but now this Court is not fo much in ufe as formerly. Avoidance. nr H IS, as 'tis oppofed to Plenarty, is where there is a ■** Want of a lawful Incumbent on a Benefice, during which Vacancy the Church is Qnaft vidnata, and the Poflef- fions belonging to it are in Abeiance. TheCaufes of Avoidance are more by the Canon Law than they are by the Common Law; and tho' thofe Laws agree in many of fuch Caufes, yet they difler in fome, as for In- ftance : If a Layman is prefented to a Church, 'tis void by the Canon Law, but the Capacity of the Perfon is not fo much confidered by the Common Law, as hi? Inrfitution and Induction; for by thofe Ads the Church is full, and (hall not be void, but from the Time of the Deprivation of the Incum- | bent for his Incapacity. Avoidances are either in Fatt or Law : The firil and moil natural is by death of the Party, and in fuch Cafe the Patron mu(i take Notice of the Avoidance, fo as to prefent within the fix Months. Then there is an Avoidance by Ceffion, Plurality, Depriva- tion, Incapacity, Union, Symony, &c. thefe are Avoidances in Law, and of fuch no Title accrues to the Patron. / There are alfo Avoidances by the (x) A 61 of the Party / as by Refignation, and there the Ordinary uiuft give Notice to jf the Patron before he can have a Title to prefent by Lapfe, (i.) There are likewife Avoidances by Ail of Parlia- ment, as if Tenths due to the Queen are demanded at the Houle or Church of a (>) Clergyman, by fuch who are charg- ed to collect them, and not paid in Forty Days, then upon theBifhop's Certificate thereof into the Exchequer, the Perfon is ipfofatlo deprived. (2.) If a beneficed Perfon is convicted in maintaining any foreign (*.) Power by his preaching. (3.) He who maintains a Doctrine contrary to the Thirty Nine {a) Articles, and being furomoned before the Ordinary doth perfift in it, may be deprived by him. (x) Dyer 327. (y) 2 4 H, tf. (*.)' 1 Eli* cap £ {*) IJ. Eliz" F (I) $° 66 *v9&Qftjancfi (4.) So an Officer taking (b) Money or any Reward for admitting, inihturing, or including, &c. looies two Years Profits or the Benefice, according to the true Value, and that the Benefice (hall eftfion be void. (5.) So if any Clergyman, who {"hall he prcfented by either 0) Univerfity to a Living in the Gift of a Papift, if he (hail ablent himfelf fix Days, the Benefice {hall be void. (6.) So a Clergyman omitting to take the (d) Abjura- tion Oath within three Months' alter entry on a Benefice, *e;s void. Thefe Statutes are differently penned, as to the Avoidance, for fome are, that the Clerk (hall be deprived, that he {hall lofi his fpiritual Promotion) that his Benefice fhali lbs void , that it {hall ffifipn be void, and that he {hail be ipfi fall 0 de- prived. Now in all thefe Cafes, but the laft, there muft be a Sen- tenee judicially pronounced to make the Living void ; and theCanonifis affirm it mull be fo in the 1 aft Cafe, unlcfs the Legislators Minds do more fully appear, as by thofe Words ; That the Benefice (hall be void, Jo that it {ball le law- ful to prefint another ; and they fay that where the Words are, a Man {'hall be ipfo facto deprived, he only lofes the Title which he had to the Benefice, but may keep the PoiTefhon till Sentence of Deprivation. Tistrue, there hath been a Refolution in a Court of Common Law, agreeable to the Opinion of the Canonifts, in the firft of thefe Cafes, and it was upon the Statute 21 H. S. cap. 13. which enacls, that if a Man takes two Livings incompatible, and is inducted into the fecond, the fif&Jballbe void, and the Patron fh all prefent another, as if the Incumbent had been dead ; this is an Avoidance without a De- claratory 0) Sentence of Deprivation ; and lb 'tis in our Law, where the Words are that the Party ihall be (f} ipfi fatlo deprived,, the*' the Canonists are of another Opinion. The different penning of Acls of Parliament of this Na- ture is farther to be obierved in the Cafes following: Where an Act declares the Admiffion, Infthmion, and Induction to be void, as it doth where a Man is made a (g) Prieft under Twenty Three Years of Age, there 'tis void without a Sen-' tence of Deprivation. £b) 3 1 Eliz. cap. 6. (c) 1 Willi, cap. 2$, (d) 13 W. J. cap. C, bi* a&oifcance* 67 But if a (hy Statute makes a Man incapable of a Benefice, under the Penalty of a pecuniary Forfeiture ,* as for In- ftance : That no Perfon ihall be capable of any Ecclefiafti- cal Promotion, before he is ordained Priclt, under the Penal- ty of 100/. that doth not make the Admiflion void, and by confequence there is no Occafionof any Sentence. L*0y, Tis to be obferved, that in all Cafes of Avoidance, by Act'of Parliament, the Bithop fhall not collate by Lapfe, but from the time of Notice given to the Patron, unlets 'tis ipecially provided by the Ati to the contrary. The next thing to be confidered is, who fhall have the Profits during an Avoidance ; and as to that matter it hath been held, that the Houfe and Glebe are in abeiance ; and for- merly it was held, that if tbelncumbent had lived till Lady Day, he might difpofe theTythes of theSummer following by his Will. But now, by the Statute, 28 H.%. cap. 11. the Profits arifmg, during the Avoidance, are given to the next In- cumbent, towards Payment of the Fir It Fruits ; and the Or- dinary, who hinders him, forfeits treble Damages, to be re- covered by ; but fuch Ordinary may receive the Profits to provide for the Service of the Church, and fhall be allowed for the Charges of fupplying the Cure, and carrying in the Tythes ; and for this purpofe the Church- wardens are ufually appointed under the Seal of the Court. By the fame Statute the SuccefTor is to have the Parfonage Houfe, and fuch Glebe as is not fown, and this he mult have within a Month after Warning ; but if the Glebe is lowed, then the Incumbent may difpofe it by his Will, out •of which Tythes mu(t be paid to the SucceiTor. So likewife if the Avoidance is by Deprivation or Refigna? tion, the SucceiTor (hall have the Tythes of the GUbefovm. As the Advowfon it felf may pafs by Deed, io may the next Avoidance, but this muft be where the Church is full - for where there is no Incumbent the void Turn is not granta- ble, be.caufe 'tis a meer fpiritual Thing; and during the Va- cancy, 'tis only a Thing in Action ; 'tis a Power or Autho- rity of Nomination verted in the Perfon of the Patron, audi not the Advowfon it felf. Tis true, the (i) Queen by her Prerogative, may grant a thing in Action, but not in this Cafe ; therefore where She is feized of a Mannor, to which an Advowfon is appemient, and the Church being void, She grants the Mannor with the Ad? vowjon; the void Turn doth not pafs to the Grantee, becauilk {h) I a Car. ?. (Tap. 4* 0) 2 Rol. Abr, i -: F i 6% asoittaitce, was a Chattel vefted in the Queen ; but if the Advowfon had been ingrofs, and not appendent, 'tis otherwile. A Grant of the next Avoidance is no more than a Chat- tel ; for if 'tis granted to a Man, his Heirs and Afligns, it fhall go to his Executors. But thoJ 'tis only a Chattel, it will notpafs by the Words bona & cat all a, becaufe thofe ge- neral Words comprehend fuch things which a Man hath in Poflefilon, but jus prafentandi is a future Right. But if the (k) Grant is to a Man and his Afligns for his Life, and that it fhall be lawful for him, during his Life, to pre- fent to the Church where it fhall happen to be void, this is a limitted Grant ; fo that if there is no Avoidance^ during his Life, his Executors fhall not have it afterwards. Juftice Coke reports the fame Cafe a little plainer ; and lie telis us, that the Grantee, for Life, died before the Church was void, and his Executor granted the next Avoidance to another, who preferred upon the Death of the lalt Incum- bent, and the lilue was upon non com -e 'Jit, which was found accordingly, for the grant was void* There is a .plain Difference between a Grant of an Avoi- dance, and the Grant of thenext Avoidance; for the one is a thing in actual PofTeflion, and the other in Expectation. But becaufe we often meet with Grants of the next A- voidance, I fhall the w fi.) Where Inch Grants are void in themfelves. (2 J Where they are made void by the Acl of the Party, and where not. {$.) Where they are made void by the Ad of a Third Perfon, who is no Party to the Grant. O0 Where fuch Grants are void in themfelves ; and as to this, it Tenant in Tail of a Mannpr to which an Advow- fon is appendant, grants the next Avoidance, anddies before the Church becomes void; this Grant is not good, becaufe 'tis only a (/) Grant of a Chattel, for there can be no Rem refervedupon fuch a Grant. So if Tenant in Tail of an Advowfon, and his Son and Heir join in a (w) Grant of the next Avoidance, and then the Father dies, this Grant is void as to the Son, be- caufe he had nothing in the Advowfon, either in PoiTeflbn or Right, at the time of the Grant. (2.) Tis void by the (») Acl of the Party, as where a Man grants Proximam advocationem when it fhall happen to (k) Jones 407. Cro. Car. 5054 $ Rol. Abr. 49. I CO 1 Rol. Rep. i$q1 1 Sulft. jr. ) LelTee for Years of an Advowfon grants the next Avoidance which [hall happen during the Term, and then dies inteftate, and his Administrator lurrendered the Term to the Leffor, then the Church becomes void, the Grantee fhali prefent, notwithstanding the Surrender of the Term, for it mall be intended to continue for his Benefit. (3.) A Grant of the next Avoidance may be void by the a& of a Third Party, who is a Stranger to the Grant. As where the King makes a Parfon a Bifhop, in fuch cafe he is to prefent by vertue of his Prerogative, fo that the Gran- tee of the next Avoidance cannot have the next Turn ,* Therefore where a Man gave (f) Bond conditioned to pro- cure a Grant of the next Avoidance of an Archdeaconry for the Obligee, fo that he might prefent, and the Archdea- con was made a Bifhop before the next Avoidance ; by (OjBulfta*. (p) And. 223. Owen. g$, Cro.^jz, 173. 1 Leon.U?; , (?) Moor 4*7. Cro. Bin. $•«, (r) 9 Rep. 145. (/) 1 Leon. 1 j 1 . a Leon. *j, Gol^s 41, ' F 3 foil io iSapttfm* this means the Bond is forfeited, becaufe the King had a Title by vertue of his Prerogative to prefent to the next Turn, BANS; See Marriage, Baptifm. HpHIS is a Federal Admiffion of Performs into Chriftiani- A ty, in which all the Blelhngs of the Gofpel are made ever, on God's Part, to the Baptized ; and tbofe who are admitted to Baptifm, are by folemn Vows obliged to obferve the Chriitian Religion. ^ It is an Xnftitution by that Mifllon which Chrift gave to his Difciplesto go and preach and make Diiciples, (r) Bap- tising them in the Name of the Father, &c. So that they were -firft to be made Difciples, that is they mult be firft convinced that Chritt is the Meffias, and fent of God to be the Saviour of the World • and when they fted- faftly believed this Do&rine, then they were to be baptized, in order to be initiated in Chriftianity, and obliged to re- nounce Heathenifm. By the Mofaical DifpenfationCircumcifion was a Federal AdmifTion to the Jemfh Religion, and that being taken a- way, Baptifm was instituted in its ftead ; which tho* in Cir- cumstances not agreeable to Circumcifion, yet both area-like in their refpec-V (vis.) that both were the refpeclive Rites of Admifiion into the feveral Covenants, and thereby the Cove- nantees became entituled to the refpedtive Privileges which were annexed to them, and in Ipoth Cafes they were obliged to obferve the whole Law to which they were reflectively ini- tiated. Anl rho' Baptifm was not ufed araqngft the Jem, yet they had a Notion of it (as we are told by learned Men) and of the manner of performing it ; fir when St. John baptized others, and they would know who he was, he told them he was not the Meffias, nor Elias, &c. they immedi- ately replied, why dojl thou then baptise f From which Words 'tis natural to infer, that if he had been either of thofe Per- fons, he might have baptized ; and it was ufuai amongu: them, when an Heathen was converted to ] -jdaifm, to wafh (?) 'Matt, xxviii. 15. the TBapiifnn ?r the Convret, which was an Emblem of Purification from his former Idolatry and Entry into their Religion. ThePerions afterwards baptized by Quilt were fir (I led to the Water, and laid naked therein, as a Man is laid in i/s Grave,- and without any Garments, but only focH which might cover the natural Secrets, and ihen thefe Words were fpoke, I Baptise thee, &c. And from this Example, Baotifm in the Primitive , Times was ufually in Rivers and Fountains, which might be convenient enough in the Ea/lem Countries, beciiuie the Converts were not only many, but Men of Years. . And with us herein (a) England we have an Account, that when the Saxons were firft converted to Christianity, many were baptized in the River Swale ; and our Hiltories mentioi , that Paulinas thtfirft Archbifhop of Turk, when he converted the North Part of England to Chriftianity, baptized feveral in the Rivers Darwent and Humber. ■ When the Custom of baptizing in Rivers and Fountain? wasdifconiinued, the People made HttleVelTels in their Houfes to hold the Baptifma! Water, and from thence they were called Fonts. Afterwards, when the (x) Christians were perfecuted, they baptized People in Woods, and when the Perfection ccafed they- came nearer to the Churches, and placed their Fonts at a little Diftance, then they got Leave to fet them in the Church Porch, and fo by degrees placed them in the Churches, but not in every Church , for at firl't they were on- ly in Cathedrals ; and tho1 the Service might be performed in the Country Churches, yet BaptiiYns and. Burials were only in the the great Churches, unlefs in cafes of Ncceflity. When tbefe Fonts firlt. got into the Churches they were placed at the Entrance, and the People went down a few Steps to them, and they were fo large, that thofe who were baptized, were dipped in the Water ; but when Immerfion was no longer u(ed, Fonts were full kept up in the Churches, tho' not fo large as before; and this ftiews that Baptifm was anciently to be celebrated, not only in Churches, but in the moft publick Place thereof, (vi^.) at the very Entrance into it, and this may be the realon why 'cis enjoined by the (y) Canon to be adminiflredin Churches and not in private Houfes, unlefs in cales of Neceflity, as \v\>-rc the Chili is fick. L»2 A.evie ubj $*■ g& 1% ix) Rydly's View, &/. 2 3 8, 0) C*non jil 77 ISapttfm* The learned Bifhop of Worcefter tells us, that whilft the ancient Difeipline was kept up, Baptifm could not be ad- miniftred privately, becauie it was never celebrated but in the great Feftivals of the Year ; but this mult be under- lined of Perfons converted to Chriftianity by preaching, and not of Infants ; for fuch who came to be baptized, were to be examined in the Face of the Church ; but when whole Nations were converted, and Infants were bapti- zed, the moft regular and foiemn Method was to baptize them in Churches. Now as to baptizing Infants, I agree there is no pofitive Rule for it in the Scripture ; yet fmce Chrift conformed his inftitutionsin fomeMeafure agreeable to the Laws of the Jem,' 'tis reafonable to believe, that where he gave no exprels Com- mand to the contrary, fomething like their Difpenfation (hould continue. In all Ages Parents had a natural Power and Authority over their Children, therefore they are entrufted. by the Laws of Nations to look after their civil Rights ; and 'tis for this reafen that all Contracts which they make in the behalf of their Children, being Infants, ami which are for their Advantage, {hall not be avoided by them when of full Age ; and if they have fuch a Right in temporal Affairs, 'tis highly reafonable that they may dedicate their infant Children to God, and the rather, becaufe in the New Difpenfation nothing is faid againft baptizing Infants, therefore it may feem reafonable, that both Difpenfations fhould agree in this, {viz,.) that as Infants were circurncifed formerly, fo they may be bapti- zed now. The firft Debate about this matter was in the beginning of the Reformation, for Anno 3 Ed. 6, fcveral Germans came hither, who held that Infants ought no: to be baptized, be- caufe they were not capable of InftrucYion ; and this Opini- on they grounded upon the firft. Institution of Baptifm before- mentioned, which was, that the Diiciples fhould firft preach and then baptize the People ,• Thefe were called the Moderate Anahapttfis-^ but there were more of that Sect who denied all the Principles of the Chrilhan Religion, and thefe were Men of fierce and rebel- lious Tempers, they had rebelled in Germany, and raifed that Vyrar which was called there the Rnftid War ; they took Mm- fier, and maele John of Ley den their King, whom they called the King of the New Jerufalem. There wss a Conuniflion directed to Archbifhop Cranmer and others^ to enquire concerning thefe Men and their Con- verfationj 'Baptifm. 73 verfation, and to endeavour either to reclaim, or to excom- municate and commit them. Amongltthefe JoanBocher, commonly called Joan o[ Kent was one^ who held that Chrift was not incarnate of the Virgin, becaufe her Flelh was fmful, and therefore he could not partake of it. The Archbifhop, and the reft of theCommiflloners, could not prevail with her to renounce this Error, therefore Are was adjudged an Heretick, and -delivered over to the fecular Power for Punifhmenr. The King figned a Warrant for her Execution by burning, but with Tears in his Eyes, telling the Archbifhop (who perfwaded him to it ) that if he did wrong he muft anlwcr it to God ; the Woman was burnt, - and no part of that Archbifhop's Life expofed him more than this did. But to return from this Digreffion, there is now a Form of Baptifm enjoined by the Law which muft be obferved, and the Minifter cannot refufe, or delay to baptize a Child ac- cording to that Form, being brought to the Church, either on a (<,) Sunday or Holy-day, if he doth, the Bilnop may fufpend him for three Month?. But if the * Child is in danger of Death, and the Minifter refufeth to goto the Houfe, being defired, and the Child dieth unbapiized, he (hall be fufpended in like manner, and fhali not be reftored till he hath acknowledged his Fault before the Bifhop, and promifed to do fo no more ; but where there is a Curate this Punifhment fhall not extend to the Parfon. Now ilnce Baptifm is made a necelTary means to Salva- tion, a Sufpenfion for three Months feems to be a very flen* der Punifhment for a Minifter, where a Child dies unbapti- zed thro5 his Negligence or OmiiTion. By the (a) Canon 3. Parent is not to be admitted Godfather to his Child, nor any other Perfon, before he hath received the Sacrament : We have not many Inftances of Profecu- tions, either for Neglects of this Nature, or for baptizing in any other Form than what is enjoined by Law • fomc we have, as for Inftance : A Man was convicted for baptizing a Child in another Form, and was indicated a iecond time for the like Offence, and had Judgment to fuffer Imprifonment for a Year, and to be ipfo fatto deprived of all his fpiritual Promotions, and, upon a Writ of Error brought, this (£) Judgment was rever- <*) Can. «<. ;id«m; (<0 Cviotjj. (*) Goto. n». fed, 74 • TBaffatop; fed, becaufethe firft Conviction was not fet forth in --the In-, dictment. And as Minifters have been profecuted for baptizing in a different Form than what is required by Law, ib they have profecuted their Parifti loners for a Fee due to them upon Bapti- zing in the regular Way ; but I cannot find that there is any thine; due for it, by vertue of any Cuftom or otherwife ; ancl therefore where the -Cur Me of (c) Bridlington, in Torkfbire li- belled againft his Parifhioner for a Shilling, as due to him for Baptizing his Child, a Prohibition was granted. By the ancient Canons it was Symony to take any thing. for Sacraments, bxaufe they ought to be adminiftred freely ; but the Cancnifts themfclves taught the Clergy to evade their own Laws • for they told them, that tho5 they ought not to take any thing for Baptifm, yet they might feiUhe Water to the Parents before it was confecrated. This is one of the word: of their EvaGcns, for Water is an Element free and in common io all Mankind for their necefla- ry Ufe and Conveniency. So that a Minifter ought not in any cafe to be paid for Baptifm, 'tis his Duty to baptize in the Church; but if the Child is in danger of Death he is obliged to go to the Houfe, Cfr. but if he baptifes in a private Houfe where the Child is likely to live, and he is paid for his Journey thither, 'tis as bad as being paid for the Water, becaufe 'tis contrary to his Duty to adminifter Baptifm in fuch Cafes. Baftardy* (T* AUSES concerning Marriage were at firft tried in the ^* Temporal Courts, but afterivards, by the Conceffion of Princes, fuch Caufes were determined in the Spiritual Courts, and for that reafon it was thought neceiTary, that the Viola- tion of Marriage should be determined there : and as to this Matter they diftinguifh between General y and C Baftardy. Special > Where a Sute is commer c\l in a Temporal Court for an inheritance, and the Defendant pleads in difabiiity that the * ) a Lut. s&ao. Plain- Plaintiff is a Raftard, this mull be tried in the Spiritual Court, and this is called General Raftardy ; for the IfTuemuft be joined upon it, and tranfmitted by the Queen's Writ to the Biihopj who is to try it in bis Contiliory Court, not ac- cording to the Canons, but puriuant to the Rules of the Common Law, for theie Laws differ in this matter, (viz,.*) By the Canons he is no Baitard who is b^rn before Marriage, if the Parents afterwards intermarry; but 'tis otherwife by the Common Law, for inch a Child is a Bafford. When the matter is tried bv the Bifhop he is to certifie it under his Seal to the Queen's JutHces, which Certificate is conclufive to them, for they are to give Judgment as 'tis found there. But where the principal Matter of the (d) Sute is concer- ning Baftardy itfel', as if an Action of Slander is brought for calling the Plaintiff Baftardy and the Defendant juftifies that he is a Battard, it (hall be tried by the Country, and this is called jpecial Baftardy. As for the Derivation of the Word, we have it from the Germans, who more properly write it Baft art j for Ras iigni- fies in that and other Languages (mean ) and (Start) in the Saxon Tongue, fignifies rifen, io that the Words import meanly nfen, or bale born. But it was not always a Name of Reproach, for it was formerly a Term of Honour in (ome Places ; and the learned (?) Glojfographer tells us, That in fome Northern Countries they admitted Baftards into Succeflion, and that might be the reafon why our firft King William took upon him that Name, for he began his Letter to Alan Earl of Breteigne in this manner : Ego Willielmtts cognomento Raft ar dm. In our Law he is thus defined, (viz*) one who is born ex Vlicito concubitis, as for Inftance; if a Man hath (f) lilue by a Woman, tho' he afterwards marry her • fo if he hath lilue by a fecond Wife, when the firft is living ; or if he hath liTue upon Marriage, within the prohibited Degrees, but not till a Divorce, for the Marriage is not vo' Thofe who are begotten between Perfons prohibited to marry, either by reafonof Conianguinity or Affinity. But the common Lawyers only take Notice of three of thofe Bailards, which they comprehend by thefe Verfes. 0 1 Rol. AW. 3$# Mm TBaffasOy, 77 Manjmbm fcortum, Notho Mtehus dedk orttim.} Utfeges afpicafic Spur ins eft ab arnica. By the Canon Law a Baftard is prohibited from taking Or^ ders, and is made incapable of any Ecclefiaftieal Benefice, for the Reafons following ; Becaufe the Dignity of the Sacraments ought not to be committed to infamous Perfons; 2. Becaufe Children inherit the Vices of their Parents, therefore Baftards are to have no fpiritual Promotion in De- legation of their Parents Crimes. But the Pope ufually difpenfed with thefe Canons : yet when one Morgan, the natural Son of H. 2. begotten by him, on the Wife of Sir Ralph Blcwett, was elected Biftop of Durham, the Pope would not grant him a Difpenfation, un- lefs he would acknowledge himfelf to be the Son of Blemtt, which herefufed, and by confequence hadnottheBif"hoprick; for being a Baftard he was incapable of it without a Difpen- fation. By the Civil Law he is made incapable of all Teftamenr tary Benefit, either from Father or Mother ; but by a Canon Law he may take, by a Devife, any reafonable Competency for his Maintenance. But both by the Common Law and Statute he is allowed a Maintenance ; for by the oce any Man is permitted to give his Baftard Lands or Tenements by his Will, and the other hath provided for his convenient (^) Maintenance and Relief, by the Parents, and yet he is of no Confederation in the Common Law, for he is not accounted of the Blood, fo as to Raife anUfe, and therefore natural (/) Afteclion is not a fufficient Confideration in fuch Cafe. He is not comprehended by the Name of Children in the Statute of Wills, he can have no Heir but cf his very Body, and if he died without luch Heir his Lands (nail efcheat ; and yetinfome Cafes a Baftard may gain the Right of In- heritance againft a lawful Son ; as if a Man, who is feized in Fee, hath an eldeft Son; who is a Baftard, and the youngeft legitimate, by one anei the fame Woman, then the Father dies, and the Baftard enters and hath IlTue, and dieth without being difturbed in his Life- time by him who was legitimate, he can never afterwards recover the Land, nor W itHffiSa?! 374* Q P>-er 374- atfy 7§ TBaffartp* any collateral Heir, in cafe there had been no fuch Son, be- cauie the Rule is (m) i^W » who lived'about 100 Years afterwards, gives an ac- count that Pope Gregory, who fent his Midionaries hither, committed the care of Britain to Sr. Au/lin the Monk, who, when he came, treated with thofe Biilaops about the Supre- macy; and the'refult was, that they would not have him be their Archbijbop. From what has beenfaid it appears that there were Biiliops very early both in Scotland and here ; that the Culdecs were unknown to thofe Ancient Writers, and likewife to Nennius, who lived many Years after them. Tis true, Giro-Idas Camhrenjis lived about ioo Years before thofe CMe s were fupplanted by the Canons regular, but he did not well understand their Original, and therefore he found out a Latin derivation for the Word, and called them Colidei; but we have no Author who aflerts that they governed! the affairs of the Church, or that they were Monks, except . fftftor Boethifis, who lias formed a Hiftory out of the inven- . tions of Veremond) Archdeacon of St. Aa4w*\ and the . Monk of fordm 9, 5 M $6 T5f(T)0p& is ^o us here in England we have a full and plain Ac- jm our Ecclefiatiical Hiftories, that the firft Conver- sion of this Nation to Christianity was by Bifhops, who were lent hither fromfeveral parts to Convert the Saxons. Thus St. Auguftine was made a Bifhop by Eleutherius Arch- bifhop of Aries, by the appointment of Pope Gregory , who gave him power over all the Britifh Bifhops ; and he fettled his See at Canterbury, by the leave of Ethelbert, in the year 597. who was the King of Kent, and under him the Kingdom was brought to Chriftianity. About Seven Years afterwards the Kingdom of Effex was Converted by Mellitus, Bifhop of London -, and Twenty two Years afterwards Northumberland was likewife Converted by Paulinas, firft Archbifhop of York. Within the fpaceof Six Years afterwards the Kingdom of the East Angles was Converted by the fame Mellitus ; and Three Years after that the Weft Saxons, by Birinus of Burgundy, who yvas fir ft Bifhop of Dorchester. About Eighteen Years afterwards the Kingdom of the Mercians was Converted by Finan,BiJhop of Lindisfarne, which is an lfland in the North, where that See continued till removed to Durham. The Men of Suffex and Surrey, about 26 Years after- wards, were the laft of this Nation who were Converted ; for thofe Countries by reafon of the Woods and Rocks were almoft inaccedible to Strangers ; but Wilfred, who was then Bifhop of the aforefaid See of Lindisfarne, being expelled his Bifhoprick, appealed to Rome, and at his return hither was by the power of EgfrU King of the Northumbrians driven from place to place till he came into Suffex, where he was kindly received by Edehvalch King of that place, who gave him Selfea near Chichejier, where he built a Monaltery, which was afterwards made the Seat of the Bifhop of that Diocefs till removed to Chichejier. And thus in progrefs of about 86 Years this whole Natron gradually received the Truth by the means of Bifhops, and thole whom they fent; fo that the Original Contiitution of the Englifh Church may be truly faid to be founded in Epif- copacy; The Bifhops, who were fo inttrumental in Converting the Saxons as aforefaid, had each their DiocelTes as large as the Divifion of the Seven Kingdoms, except in Kent, where the Archbifhop had a Suffragan, who was the Bifhop of Rochefyer ; i-ut every other Bifhop was Univerfal, incumbent on each Kingdom, and lived in? Common with the Clergy, whom they they fent to Preach in feveral Parts; but after the Nation be- came Chriftian, thole itinerant Clergy wer: laid allele, and a more convenient Miniftry was fettled by degrees in parti- cular Diltnds and Parifhes, where the People might certain- ly refort to the Publick Worihip. Afcer the Kingdoms were entirely United, and as the number of Chriltians encreafed, lb did the Bijhops too, and in Conformity to the Civil Government they were alio Unite! under one Metropolitan, which continues to this day. Having laid thus much of Bifbops in general, I ihall in the next place treat of thefe Matters diftmCtly • (1.) The Age of Bilhops, and the Way or making them. (2.) Their Privileges here. (3.) Their Peerage. (4.) Whether they are the Third Eftate of the Kingdom. (5.) Their Jurifdidion over the Clergy. ( 6.) Their Jurifdicuon in Cales of Blood. (7.) And lajily> what Leafes made by them are good, and what not. (1.) By the Canon he is required to be Thirty Tears of Age; 'tis true, there is no fuch Rule in Scripture, and this Canon hath often bcendifpenfed withal. Then as to the way of making Bifhops, I find that in the Primitive Times, when a Bifhoprick was vacant, the Bi- fhop of that Country chofe and ordained another to the vacant See, and the People had no Share in the Choice. But when the Churchmen became poor, and lived, for the moft part, by the Charity of the People, it was thought con- venient that they fhould be confidered in the Election of their Bifhops, and both the Laity and Clergy concurred in nominating him ; and there might likewife be another Rea- lon for it, becaufe he who was to infpedt all, might come in by a general Confent. Thus we read when Cities were converted to Chri{lUnity> the Bifhops were eledted Per cUrum & popuhm, but as the Number of Chrifiians increafed this was found to be very in- convenient, for (a) Tumults were raifed, and fometimes Murders committed at fuch popular Elections, and particu- larly at one time no lefs than three Hundred Perfons were kill'd at fuch an Election. To prevent the like Diforders, the Emperors being then Cbri/iiansy referved the Election of Bifhops to themielves ; but in fome Meafure conformable to the old Way, that is, •r* ■■'■■- ■ 1 .in in t 11 > ■' ■■ ■ ■- 1 ■- '■„■ • (*) aRolLRep. ic* G 4 v/hen 88- 'Bifl&opg, whenaBiflhop died, the Chapter fent a Ring and a PafioraJ Staff to the Emperor, which he delivered to the Perfon whom he appointed to beBifhop of the Place. The Popes who were at the Head of the Church were plea- fed to fee Churchmen grow .rich, but they were not fatisfied that ihey fhould. have any Dependance on Princes, and therefore pretended that they took Money for nominating Bifhops, or charged their Revenues with Penfions ; and they would not iuffer them to take lnfhtu'ions at their Hands, and thereupon the Canons in Cathedrals chofe their Bi- fliops, which were ufually confirmed at Rome. But princes itill had fbme Power in thole Elections ; for we read ih the Saxon Times all Ecclefialtical Dignities were conferred in Parliament ; this appears by lngulphm, who was Abbot of Crowland'm the Reign of William the Conque- ror, who telJs us ihat a multis annis retroaclis nulla erat canoni- capralatorttm EleBio, becaufe they were donative by the De- livery of the Ring and Pattoral Staff aforefaid ; the one fjgni- fying -that the (b) Bifhop was wedded to the Church, and the other was an Enfign of Honour always carried before him, and was a Token of that Support which they ought to contribute to the Government, or rather that he was now become a Shepherd of the Flock of Cbrisi. Hildebrand, who was Pope in the Reign of the Conqueror, was the Firft who oppofed this way of making Bifhops here, and for that pur- pofehe called a Counil of One Hundred and Ten Bifhops, and excommunicated the Emperor, H. 4. and all Prelates who received Jnveftiture at his Hands, or by any Layman, per traditionem annuli & baculi. But notwithstanding that Excommunication, Lanfrank was made Archbifhop of Canterbury at the fame time, and by the fame means as Malmsbury tells us ; but the Saxon Annate in Bennet- College Library are, that he was chofen by the Se- nior Monks of that Church, together with the Clergy and Laity of England in the King's great Council. But be it how it will, Anfelme did not fcruple to accept the Bifhoprick by the Delivery of the Ring and Pafioral Staff at the Hands of. William Rufus, tho* never chofen by the Monks of Canterbury ; and this was the Man who afterwards contefted this Matter with H. 1. in a moil extraordinary manner ; for that King being forbidden by the Pope to difpofe of Bifhopricks as his Predeceffors had done by the Delivery * ' ' ' ' ■ '■ TTir 1 ■■||| «,— q» V« !»,— 1— ■ I Ill I ' ~ ,. (b) Co Liu, 3440 a. Tf 3©tfl)op& 83 cf the Ring and Staff, and he not regarding that Prohibition, but infifting on his Prerogative, the Archbifhop refufed to confecrate thofe Bifhops whom the King had appointed j at which he was fo much incepted, that he commanded the Archbifhop to obey the ancient Cuftoms of the Kings his PredecefTors, or to quit the Kingdom. The Conteft grew io high, that the Pope interpofed and fent two Bifhops to acquaint the Kins,, that he would con- nive at this Matter io long as he acted the Part of a good Prince in other Offices. Thereupon the King commanded the Archbifhop to do Homage, arfcl;,to confecrate thole Biiliops whom he had made; but this being only a feigned Meffage, and the Archbi- fhop having a Letter to the contrary, refufed to obey the King. At laft, after feveral Heats, the King yielded the Point, referving only the Ceremony of Homage of the Bifhops ia refpedt of their Temporalities, to which Anfilme contented, fo as it was done before their Confccration j and then the Archbishop coniecrated thofe Bifhops whom the King had appoimed, and promifed that no Perfon elected to be a Pre- late fhould be refufed Conftcration, becaufe of the Homage he had done to the King. But yet that very King reaflumed his ancient Prerogative, and invefted the very next Archbifhop, who fucceeded Anjd- me, with a Ring and a Pajloral Staff, tho he did not long enjoy it ; for when the Emperor quitted it he did fo once- more. Now to add more Solemnity to this Matter, and that Ca- nonical Elections of Bifhops might not ieem ufurpations on the Kings Prerogatives,, in appointing whom he pleafed to vacant Sees ; King 0) John, by his Charter De contmmi con- fenfu Baronum, granted that (d) Bifhops fhould be canoni- cally defied, fo that Leave was firft asked of him, and his AfTent required after fuch Eiedtion, and fo that he might have the Temporalties during any Vacancy. So then they were chofen by the Dean and Chapter, or the Priors and Convents ; but yet the King retained this ancient Prerogative in recommending the Perfon to them ; and that he might influence their Election of that very Perfon, lie ufually lent for the Bean and Chapter, or fome of their Num- ber commiflioned by the reft who met in his Chappel, or in 10 Palmers s* {d) 1 inft. 1 H. 344, fome 90 OKflWIfc fome Church near it, and thefe chofc the Perfon he had re- commended. This occafioned frequent Contefts between our Kings and Popes, but (-till the Crown did jutfly claim an Authority o- ver all fpiritual Things and Perfons ; and when Kings were willing to oblige any Pope in this Matter, they would re- commend a Perfon to the vacant See, and the Perfon thus re- commended, had his Bulls difpatch'd at Rome, and by a par- ticular Warrant from the Pope, was confecrated and in- verted with the Spiritualties of the See. And even when the Supremacy of the Pope was mofr ex- alted here, the Kings of England were never total'v devefted of this ancient (e) Prerogative ; for upon the Vacancy of a Bifhoprick there ilTued a Writ out of the Chancery , to feize the Temporalties in the King s Hands ; and before the new elected Bifhops could be rertored to them, he was to appear before the King, either in Perfon or by Proxy, and renounce every thing in thofe Bulls which might be prejudicial to the Crown, or contrary to our Laws ; and having taken an Oath of Fealty and Allegiance , there iiTued forth another Writ, reciting that all this was done, and by that Writ the Temporalties were to be reftored. In the -iyh Year of H 8. cap. 26. the Parliament patted an Act, that Bifhops fhould not be any more prefented to the Pope, or fue out Bulls from Rome ; but that upon the Va- cancy of any See the Perfon fhould be prefented to the Arch- biftiop ; and likewife if an Archbifhoprick fhould be va- cant, the SuccefTor fhould be prefented to an Archbifliop in the Queen's Dominions, or to Four other Bifhops whom the King ihould appoint, that upon fuch Vacancy the Dean and Chapter ihould certifie it to the Queen in Chancery^ and pray that they may proceed to a New Election. Thereupon the Queen grants a Licenfe to them under the Great Seal, to elect the Perfon, whom by her Letters miifive She hath appointed ; and they are to choofe no other. Within Twenty Six Days after the Rccept of this Licenfe, they are to proceed to Election, which is done after this manner. The Dean and Chapter having made their Election, muft certifie it under their common Seal to the Queen, and to the Archbiihop of the Province, and to the Bifhop elected 5 it) B.a r. xvt. 1 j, is. then the Queen gives Her Royal Aflent, under the Great Seal, directed to the Archbifhop, commanding him to con- firm and confecrate the Bifhop thus elected. The Archbifhop fubferibes it thus, (viz,.) Fiat Confirmation and grants a Commiflion to his Vicar-general, to perform all Ads requifite to that purpofe. Thereupon the Vicar-general ilTues forth a Citation to fummon all Perfons who oppofe this Election to appear, &c. which Citation is affixed by an Officer of the Arches, on the Door of Bow-Church, and he makes three Proclama- tions there for the Oppofers, &c. to appear. After this the fame Officer certifies, what he hath done to the Vicar-general, and no Perfon appearing, &c. at the Time and Place appointed, &c. the Pro&or for the Dean and Chapter exhibits the Royal Aflent, and the Commiflion of the Archbifhop directed to his Vicar-general, which are both read, and then accepted by him. Afterwards the Pro&or exhibits his Proxy from the Dear*-, and Chapter, and prefents the new elected Bifhop to the Vi- car-general, returns the Citation, and defires that Three Proclamations may be made for the Oppofers to appear, which being done, and none appearing, he defires that they may proceed to Confirmation in p&nam contumack, and this is fubferibed by the Vicar- general in a Schedule, and de- creed by him accordingly. Then the Proclor exhibits a luminary Petition, fetting forth the whole Procefs of Election, in which 'tis defired, that a certain Time may be affigned to him to prove it, and this is likewife defired by the Vicar-general. Then he exhibits the Aflent of the Queen and Archbifhop once more, and that Certificate which he returned^to the Vi- car-general, and of the affixing the Citation on the Door of Bow-Church, and defires a Time may be appointed for the Final Sentence which is alfo decreed.- :- Then three Proclamations are again made for the Oppo- fers to appear, but none coming they are pronounced Contu- macei ; and 'tis then decreed to proceed to Sentence, and this is in another Schedule read and fubferibed by the Vicar- general. Then the Bifhop Elect takes the Oaths of Supremacy, Canonical Obedience, and againft Simony, and then the Dean of the Arches reads and fubferibes the Sentence. The Dean and Chapter are to certifie this Election in twelve Days after the Delivery of the Letters miffive, or they incur aPrarmunire, And 92 'Bfftopfif. And if they refufe to elect, then, the Queen may norni* nate the Penbn by Her Letters Patents. So that to the making a Bishop thefe things are requifite, (viz,.) Election, Confirmation, Confecration and Invetti- ture, of all which I faall treat in their refpecYive Places. Upon Eledion the Peribn is only a Bifhop nomine^ and not in re, for he hath no Power of Jurifdiction before Con- iecration. In the Time of the Saxons all Bifhops and Abbots fate in State Councils, by reafon of their Office, as they were Spi- ritual Perfons, and not upon account of any Tenures ; but after the Conqutl} the Abbots fat there by Venue of their Te- nures, and the Biiliops in a double Capacity, as Bifhops, and likewife as (/) Barons by Tenure j^and this appears Anno ii //. 2. when ArchbifiHop Beckett- was condemned in Parliament, for there was a Difpute who iliould pronounce the Sentence, either a Bifhop or a Temporal Lord ; thofe who would have a Bilhop do it, alfcged that they were Ec- clefiaftical Perfons, and that it was one of their own Order who was condemned, and fo infitted that one of them oueht to do it ; but the Bilhop replied that this was not a Spiritual but a Secular Judgment ; and that they did not fit there me rely as Bifhops but as (g) Barons \ and told the Houfe of Peers Nos Barones vos Barones pads hie fumtts. And in the very Year before, viz.. Anno 10 H, 2. it was declared by the Constitutions of Clarendon, that Bifhops, and all other Perlons who hold of the King in Capite, have their PoiTeffions of him ficttt Baroniamy & Jicut c&teri Barones debent inter effejudiciis Curia Regis, &c. And they ought to fit there likewife as Bifhops, that is not as mere Spiritual Perfons, vetted with a Power only to or- dain and confirm, c£v. but as they are the (Ji) Governoursof the Church ; and 'tis for this reafon that in the Vacancy of a Bifhonrick the Guardian of the Spiritualties is fummoned to the Parliament in the Room of the Bilhop ; and the five New Bidiops of Brijlol, Chefter, Glocejler, Oxford and Peter- borough, which were made by H. 3. have no Baronies, and yet they fit there as Bittiops of thofe Sees by the King's Writ. ffcta peerage.] A Bifhop being thus made, I {hall in the next place confider him as a Peer of the Realm. The chiefeft Objection againft his Peerage is this, (viz,.) By the Common Law all Trials in capital Caufes ought to be per pares), now if a Bifhop iliould be tried for a, capital "■' "■"»"1 ' ■ ■ » ■■ " ■ 1 1 > » ... 1 . HIT. — ii. J— ^ 'OS--- Offence, it muft be by a Jury of Commoners, and therefore they fay he is a Commoner and no Peer. In anfwer to this I take it to be a very weak Argument, that becaufe Bifhops have been tried by Commoners out of Parliament, therefore they have no Right of Peerage in Par- liament ; for the Difference between them and the Temporal Lords, in refpedl of their Trials, may be thus (viz,.) the Temporal Lords are Peers by Defcent, but the Bifhops are Peers by Tenure ; they have not their Peerage by Inheritance, as the Temporal Lords- have, but (till they are Peers in Par- liament, and have a Right to fit and Vote there as Bifhops and Barons, and therefore the different Titles which they have to their Peerage, might ^t fir(t occafion this Difference in their Trials. Befides Bifhops were not always tried by Commoners ; for Anno 15 Ed. 3. John Stratford, Archbi(hop of Canterbury, was tried in Parliament, and fo was Archbilliop Arnndell^ Anno 21 R. 2. without any impeachment by the Commons. And here I cannot but take Notice of the Nine Reafons, which, in the Year 1641, were lent with a Bill from the Commons to the Lords, againft the Voting of Bifhops in Parliament ; and the rather, becaufe I do not find them men- tioned by the Noble Hiftorians who oppofed the Bill, which afterwards palled both Houfes. (1.) The firft was becaufe it was a great Hinderance to the Exercefe of their minifterial Fundtion : And yet they area-f- lowed in all the Reformed Churches, to attend General Coun- cils, Synods, Convocations, &c. whkh is certainly a great- er Hinderance to them than a (Tiort Attendance in Parlia- ment. 3Tis not fuch an Hinderance as the Apoftles put upon themf elves, without any manner of Necefllty, for they worked for a Livelihood, beeaufe they would not be burthen- fom to others. (2.) The fecond Reafon was, becaufe they vow and un- dertake at their Ordination, when they enter into Holy Or- ders, they will give themfelves wholly to that Voca tion. But this is a miftaken Reafon, for they make no fuch Vow; 'tis true, the Bifhop exhorts them at that time to give them- felves wholly to it in a Moral a:?d not in a Mathematical Senfe, which will admit of no Latitude ; for otherwife it would be a Fault for them to take anyjuft and neceilary Care to provide for their own Houfhold. (3.) The third Reafon was, becaufe they are forbidden by Canons and Councils to meddle infecular Affairs. But 94 'Bffljop& But fuch Canons and Councils were never received here* for by the Common Law they have an undoubted Right to fit and vote in Parliament, and 'tis the Queen's Prerogative to iummon them thither. (4.) Becaufe the twenty four Bifbops have a Dependance upon the Archbifbops, by reafon of their Canonical Obedi- ence to them. This islikewife aMiftake, for they have no Dependance on them, nor owe Obedience to them ; but i Cafes of Ap- peal and Vifitation; they are Pares in Parliament ; and 'tis a known Rule, that Par in parem non hahet mperium. (5.) Becaufe Bifhops have only Eftates for their Lives, and therefore are not fit to have a Legiflative Power over the Honours, Inheritances, Perfons and Liberties of others. If this fhould pafs for a Reafon, it might hkewife be ex- tended to the Knights, Citizens and BurgefTes, who are cho- fen for one Parliament only, and do not fit there during their Lives. Befides the Bifhops are not for their Lives only, but for their Succeflbrs alfo in the Honours and Lands which belong to the Church ; and there are Inftances of ( Temporal Peers for Life, as the Earl of Surrey was, and that for the Life of his Father 5 and yet this was never objected againft his Vo- ting there. (6.) Becaufe of the Dependency and Expectancy which Bifhops have to be tranflated to Places of greater Profit. If this is a Reafon it doth not reach the Archbifhops, be- caufe they cannot be tranflated to Places of greater Profit ; but it reacheth all Bifhops by falfly fuppofmg them to Vote in Parliament, not according to their Conferences, but in hopes of being preferred ; and 'tis a bafe and unmannerly Reflection on Princes, that they fhould be thought to pro- mote Perfons for fuch Votes. (7.) Becaufe Bifhops had, at that time, encroach'd on the Confciences and Properties of the Subject, and that would encourage their SuccefTors to do the like; and that all Com- plaints againft fuch Encroachments would be ineffectual, becaufe the whole Order of Bifhops here would be Judges of iuch Complaints, This Reafon cannot extend to thofe Bifhops who were not guilty of fuch Encroachments, and certainly there were fome of them innocent as to this Charge ; but if all had been guilty, a Complaint made againft them could not be ineffectual in Parliament, for voting as Judges in their own Caufe, when 'tis generally known that they never vote m focfe fuch Cafes; but if they ftiould, it would have no Effe&, if they are juftly charged, becaufe they would be out-voted by the Temporal Lords, there being a great Inequality in their Numbers; this appeared very plain throughout the Reigns of Ed. 3. R. 2. & H. 4. when the Bifhops were affifted with double their Number of mitred Abbots and Priors, but could not hinder the making Laws againft the Encroachments of the Court of Rome, much lefs can they now hinder the re- dreffing of any fuppofed Exorbitances of Ecclefiaftical Power, when they have no fuch Afllftance, and by conft- quence where there is a greater Inequality of Votes between them and the Temporal Lords, (8.) Becaufe 'tis the Intereft of the whole Number of Bi- fhopsto maintain their Jurifdi&ion, that it was then found gr evous to the Three Kingdoms, that Scotland had abolifhed Epiicopacy, and that Multitudes in England and Ireland had petitioned againft it. And 'tis probable greater Multitudes would have petition- ed fork, but this Reafon ihews what was principally inten- ded at that time by ail the reft, not againft the voting of BiQiops in the Houfe, but againft Epifcopacy it felf, which afterwards, thro' the Iniquity of the times, fucceeded. (p.) The laft Reafon was becaufe Biftiops are Lords in Parliament, which makes a great Diftance between them and the reft of the inferior Clergy, which occafions Pride in the one, Difcontent in the other, and Difquiet in the whole Church. This is an Argument (if I may call it fo) deduced from moral Philofophy, which affords no Demonftrations ; but certainly all are not proud who fit in Parliament, neither are all difcontented who are out of it ; and 'tis as certain that the wifeft of the Clergy are very we!! fatisfied, that fome of their Profefllon are advanced to thofe Honours and Places in the Government, wherein they may be capable, upon all Occafions, of doing good Offices to them, and to this whole Church. But- fince this Bill did afterwards pafs both Houfes, and bad likewife the Royal Affcnt, it may not be improper here *o give the Reader a fhort Account of it. This Bill was the firft Defign againft the Church, and was receiv'd in the Houfe with a vifible Approbation, and many of the popular Peers, at that time, liked it very well, be- caufe it was to deprive the Houfe of thofe Perfons who were moft in the King's Intereft; but the moil plaufible Reafon toas, that they ought not to fit there* becauie it w» incon- fiftent $6 •BiftOpS. fiftent with their Ecclefiaftical Fun&ion to' intermeddle with Temporal Affairs, and being removed from the Parlia- ment, they might have fewer Diverfions from their Spiritual Charges. The Bill palled the Commons, but being fent up to the Peers it was not fo much as committed, but rej-.&ed at the iecond Reading. This exafpcrated the Party which was violent againft them, inibmuch that foon after a Bill was brought into the Houfe to extirpate Bifhops, Deans and Chapters, with all Chancel- lors, Officials and their Officers, it was read but once and then laid afide ; but not long after it was revived and read a iecond Time, and committed to a Committee of the whole Houfe, but it was drop'd ; for the leading Men, in each Houfe, were not yet determined to change the whole Frame and Conftitution of the Kingdom, whatever Malice they might have againft fome particular Men of that Order. However the fnft Bill againft their voting in the Houfe of Peers, and for difabling them to exercife any Temporal Of- fice, being rejedted as above-mentioned, was contrary to the Courfe ot^ Parliaments, prefented again in the fame SefTion?^ and pailed the Huufe of Commons ; but it depended a long time in the Houfe of Peers, who plainly faw that their Ju- riidi&ion was invaded by this Bill ; but the Virulency of the People was encreafed againft the Bifhops, occafioned chiefiy by the Sernions, which in mod Churches were fo many In- vectives againft the whole Order, infomuch that both Houfes having, not long before, taken a Proteftation to defend the true reformed Religion1, exprelled in the Doclrine of the Church of England, againft all Popery and Popifh Innova- tors ; that is, to defend the publick Doctrine profeffed in the Church, fo far as 'tis oppofneto Popery and Popifh Innova- tors ; a Sermon was preached at Weftminfler, by the famous Mr. Burton, and foon after printed under the Title of the Protection protefted ; wherein it was impudently afferted, that by that Proteftation all Men were obliged to remove the Bifhops and Common-Prayer out of the Church ; fo that by the one he mult mean Papifts, and by the other Popifti Inno- vation. And what was more ridiculous, a Petition was publinYd in the Name of the London Apprentices, and probably fome of them had ferved but a very little while, and this was di- rected to the King, attributing the Lofsof Trade to the Pa-* pifts and Prelates (which in thofe Times were ufually cou- pled together to make them more infamous) that they ftoocl engaged ■Bifi&opg* 97 engaged to defend the King, and the Rights and Liberties of Parliaments againft Papifts andPopiih Innovators, fuch as Archbifhops, Bifbops, and their Dependants appeared to be 5 then they defired the King to take Notice, that notwithstand- ing the Endeavours of the Houfe of Commons to iubdue Popery and Popifh Innovators, it was yet ineffectual, nei- ther were the Prelates removed, and therefore they defirecl that the Laws might be put in Execution againft Priefts and Jefuits, and that Prelacy might be rooted out, that fothe Re- formation might be carried on, and that Freedom of Trade might pafs more chearfully. This Petition was printed and fcattered about the City,' which fo much incenfed the Mobb, that the Clamour in the Streets was, No Bijhops, No Bijhops, who all withdrew their Attendance from the Houfe. After this they got a Petition from Perfons of a meaner Degree than Apprentices, from the pooreft and very Dregs of the People, and this was direded to the Houfe of Com- mons, wherein thofe poor Wretches were made to complain of the approaching Stories of their Ruine, chiefly occaGonM ( as they were made to fay ) by the Prevalency of Biihops ^ that their Miferies were infupportable, and that they could mot tell where to get Bread for their Families ; fo that unlefa fome fpeedy Remedy was taken, they could not reft in Quiet- nefs, but muft be forced to lay hold on the next Remedy, to remove the Difturbers of their Peace. This and fome other contrived Petitions of the like Nature, occafioned the palling this Bill, which was foftened with the Title of, a Bill for taking away all Temporal Jurifdi&ion from thofe in Holy Orders, to which the King was prefTed to give his Royal Altent by thefe Reafohs. (1.) The Grievances which h\6 People furTered by Bifhops exercifing Temporal Jurifdi6tion, and their making a Party in the Houfe of Peers, would by this means be removed* (2.) An univerfal Satisfaction of all forts of Perfons would appear in the happy Conjunction arid Unanimity iri both Houfe?, if Bifliops were, abfento (3.) The pafling the Bill would be a Pledge of his Ma- jelly's Gracious Aflent to the future Remedies of thofe EvilS which had been prefented to him. But thefe Reafons did not fo much prevail oh him as the Importunity of the Queen, tho* thofe of the greateft Truft about him infifted, that the palling the Bill was the only means to preferve the Church, becaufe thofe Perfons who were powerfully combined in this Particular, would be fo H well 98 'BtffjOpS; well fatisfied in parting it, that they would no farther At- tempt an Alteration ; but if they were crofted in this matter, 'tis probable they would endeavour, with all the Malice and Violence imaginable, the utter Extirpation of the whole Order. Thofe Arguments, and the Perfwafion of the Queen, pre- vailed on the King again ft his pofitive Refutation to give his Af&nttothe Bilk SUbet&er t&c* arc t\)t t\)it\> €ttate. ] I fhall in the next place confider them, as they make the third Ellate of Par- liament, and in doing; this, I mutt admit, that if they fit there, by reafon cf their Baronies only, then they would be •included with the Temporal Lords, and both reprefent but one Eftate. Tis true, when they fit in a judicial Capacity as Members of the Houfe of Peers, then they fit as Temporal Barons, and in that Capacity they Vote ; but when they fit in the Legi/Iathe Way, as in pafllng Bills of Attainder, then they re- present a third Eftate* And this appears by what I have mentioned before, (viz,.) that during the Vacancy, &c. Writs have been directed to the Guardians of the Spiritualties to attend in Parliament; now thofe Guardians could not fit there by reafon of their Tem- poralties, for they had none, becaufe thofe were in the Hands of the King, from which 'tis evident, that Bifhops do fit there as Spiritual Perfons • for otherwife, why fhould thefe Guardians of the Spiritualties be fummoned thither in the Vacancy of a See. But the Writ of fummons it felf is a farther Proof, that the Intereft ihey have in Parliament is not per Baroniam only, for that Writ diftinguifh.es between them and the Temporal Barons ; the one being fummoned to appear in fide & dileclione, the other in fide & ligeantia quibus nobis tenemini. Tis true, Anno 50 Ed. 3. in the Writs of Summons to Parliament, by the Claufe Pr either againtt the Right of Biftiops fitting in the Houfe, or for the validity of Laws made without their Content ; for it was an extravagant Execution of the regal Power againit the clear and uncontefted Right, and a plain Invafion of the Liberties of the People, by the Subver- fion of the very Conftitution it felf. But admitting that the A<5t of Uniformity did pafs with- out the Confent of all the Spiritual Lords, yet it did not pais Exclufo clero; for when they voluntarily abfent, they always preferve their Right by protections ; and if they were pre- lent and all diifented, the Law is (till good, becaufe it was carried by the Majority of Votes ; and this was Bifhop (**) Jewell's Opinion in his Apology againit Dr. Harding. fl>f trjetr Juttfatrtton in Cafe* of flBioou.] Before I leave them in the Houfe of Peers, it may not be improper to con- fider their Jurifdiclion there in Cafes of Blood. In the Primitive Times Bifhops attended the Cure of Souls, and intermeddled in no fecular Affairs, but when they were chofen Arbitrators by contending Parties, and this was to re- concile thofe Quarrels which might occafion Chriftiansto g© to Law before Infidels. When the Empire became Chriftian, thofe Determinations which Churchmen made on 1 uch charitable A ccounts, had a Sanction added to them by the Imperial Laws, and parti- cularly by Cenftantine, who confirmed all fuch Decifions, and afterwards they became of great Authority. This encouraged them to proceed in many other Matters which did not concern their Spiritual Office* and therefore about one hundred Years after the Reign of Gonilantine the (•) £. H, R, 2 PC iy4, v (m) Lib, 6. cap.*/ H s 4)pg ioa 'Blfljopg* Great, they were forbidden by the famous Council of Chat- cedon to meddle with any fecular Affairs, Afterwards, when Churches were endowed with Lands by Emperors and others, the (lave* often palled with the Lands ,• and their former Matters having a Power over the Lives of iuch Slaves, by Confequence the Churchmen to whom they were given had the like Power, which was fome- times executed with Rigour ; and that being an apparent Di- minution of their Patrimony, it was agreed that Men fhould not proceed capitally againli their Slaves : and about two hundred Years after the aforefaid Council, it was decreed, in the Eleventh Council of Toledo, that Priefts fhould not judge in capital Cafes, which Canon was received in all the Churches of the Weft. But when Charles the Great, and other Princes in the Weft, and particularly the Kings of England gave the Bifhops Lands and Dominions, they obliged them, by vertue of thofe Do- nations, to attend in their State-Councils, and likewife to do other Services by vertue of their Tenures. By thefe Services their ancient Tenure in Libera Eleomofyna was altered, and King William called the Conqueror, made them take their Temporalties in nature of Baronies, that is, they were to hold them of him, in Capite,^ by certain Duties ; and this was fuch a Diminution of their Spiritual Empire, that the Popes of that Age, to difcharge the Bifhops of fuch Services, and to make them independent on the King, ob/e&ed thofe Canons which had been made in Cafes of Blood, as a juft Excufefor their withdrawing in fuch Cafes ; and there- fore, if they muft attend, it fhould not be when Sentence of Life or Limb was to be given. But Archbiihop Cranmer, who was a Man of Learn- ing, did not take thofe Canons to be obligatory to him ; for being one of the Privy Council to King Ed. 6. he figned the Warrant for the Execution of Thomas Seymour, Lord High Admiral of England. And 'tis very probable thefe Canons were never confirmed by the Papal Authority, either in Synods, or otherwife, but being grounded upon a plain Hypocrifie, 'tis certain they Were never received here fmce the Reformation. Now the Reafon which the Canonifts give, why Bifhops fhould not be prefent in Cafes of Blood is, becaufe they con- tradt an Irregularity thereby, ex defettn lenitatisy and yet they a How them to judge Hereticks, and to deliver them o- yer to the Civil Power to be executed, and is not this a judgment in cafe of Blood ? And can any Man in his Sen- fes its think, that 'tis falved by the Prayer of the Tnquifitor?, when the Heretick is thus delivered to Execution, (viz*) they pray that he may not be hurt, either in Wind or Limb, when they know he will certainly be executed. For thefe and other fuperfiitious VVhimfies thefe Canons have not been received fince the Reformation, but the pradtice hath been quite otherwise, for the Archbifhcp of Canterbury was the firft in Commiflion at the Trial of Aiary Oxecn of Scots ; and in the Reign of King Charles the Firfc there were Ten Bifhops, with other Peers, appointed to examine the Evidence, upon the Impeachment of the Earl of Brifiol ; and the noble («) Hiftorian tells us, it was unreafonably moved in the Houfeof Peers, in the Earl of Strafford's Cafe, that the Bifhops might have no Vote in palling that Adt of Attain- der, and that Williams, who was then Arckbtfbop of Torl% without confulting any of his Brethren, declared his Opi- nion, that they ought not to be prefent, and offered not only in his own Name, but in the Name of the reft of the Bifhops to withdraw, by which he betrayed a fundamental Right of the whole Order, to the great Prejudice of the King, and to the deftroying that Noble Peripn who could not other wife have fuffered. 33Df ttyit jButifatrUon otoet tfce Clergy ] I fhall now pro- ceed to treat of their Jurifdiciion over then4 Clergy. Presbyters in the Church of God are fubje'cl to Failing, and becaufe Faction and Schifms may ante inter pares, where there is no power, therefore to avoid this Milchkf, there was a Neceffity of a fuperior Order of Men to infped and go- vern, to vifit and reform any Diforders, and thofe were the Bifhcps. When firft they were eftablifhed here, they were to fee that Churches might be built in their DioceiTes, and to take care to fill them with Perfons well qualified for the Miniftry j and a Clergyman was neither to be admitted to a new Bene- fice, or to leave an old one, without the Leave and Confent of his Bifhop. They had Authority not only from Canons, but from the ancient Ecclefiartical Laws, which have not their Force from any Conftitution of the Pope ( for many of thofe Def- orces were never received here ) but from the Cuttom and Practice of the Church in all Ages, ever fince Chriilianity was eftablifhed here. h 4 m* io4 OBffljOps; lamination. ] By thefe Laws they have power to judge of the Ability of the Clerk preiented to them, for the Bi (hop is an (o) Ecclefiaftical Judge, and not a Minifterin his exami- ning the Clergy ; formerly he had two Months time after the Presentation, but now, by the (p) Canon, he hath only Twenty eight Days to admit or refufe the Clerk, which if he neglecls^ then the Preientee may have a Remedy againft him in the Court of Areks, or Audience by a Proceis called Duplex Querela ; or he may have a Quart impedit at Com- ma;: Law which is more ufual, and then the Bifhop muft fhew fome Reafon for his Refufal. The chief Thing in the Examination is to know, whether the Clerk is capable to difcharge his paftoral Office *ScientU & moribus, if he Bifhop is not iatisfied in either, and a Quare impedit is brought again ft him, he mult not plead a general Caufe of Refufal, but he is to certifie the Particulars ; and therefore to fay generally that the Clerk is inhabilis, or crimino* fas, is not fufficient, becaufe a Peribn cannot be criminal without doing fome A6t which will admit a Trial, either in the Spiritual or Temporal Courts, according to its Nature. Befides in affirmative Pleas particular Circumftances are Jrequifite to make the Fa6t clear, but in the negative Pleas ftis other wife. I fhall not enlarge on this matter, becaufe it would be only to repeat what the Reader may find in the Title Ad- wjfion, . But muft fay, that when Chriftianity was firft eftablifhed here, the Bifhops of the refpedtive DiocelTes had the imme- diate Care of the Churches, and fent their Clergy, who at firft lived in common with them, to ferve the Cures in fuch Places as they thought convenient, but ftill within their own' DioceiTes 5 and it was their Care to fee the Revenues of the Church difpofed to proper Ufes ; for thofe who were main- tained by thofe Incomes, always had it Epifcopo difpenftnte ; this was exprefly required by the Apoftolical Canons, and by the Councils, of Antioch andiGangra.' j . That when thofe Biihops faw a Neceflity to fix the Clergy to attend that Service in particular Places 5 and when Lords of Mannors afterwards built and endowed Churches, and by that means obliged the Clergy to a particular Attendance within certain Limits, . which were called Parifhes ; tho' they confehted that fuch Lords or Patrons fhould nominate Clerks to thofe1 Churches, yet it was (till upon Condition (0) 5 Rep. 57. 7 Inft, 6J-2. (?) Canon 95* *»See Titje Freshing. "" .. ' that IMffjopg* icy that Bifhops might be fatisfied in their Qualifications and Abilities to perform the Service, fo that the Bifhops were al- ways Judges of the Fitnefs of thefe Clerks who were to iervft the utrts in their DioceiTes, and it was rcafbnable it fhould be fo, becaufe the Bifhops had the Care of the whole. Tis no Objection to fay that this Power, which is lodged in the Bifhop, may turn to tbe Prejudice of t!.e Patron's Right, by making his Prefentation ineffectual, if he fhould not think the Clerk qualified ; for 'tis a Truff repofed in him by the Law, and cannot be fo properly placed in any other Perfon, becaufe he hath the Care of the whole Diocefs as aforefaid. Tis a Truft allowed by allChriftian Nations where the Right of Prefentation is owned ; and fbme Canonifis, and particularly Rebujfus, have told us, that 'tis a damning Sin in a Bifhop not to examine the Clerk prefented ; and that 'tis hi? Fault, and not the Patrons, if a Man not qualified fhould obtain a Benefice. Tis true, the Judgment of the Bifhop is not conclufive in this Cafe, but the Party may appeal to the Supreme Ecclefi- affical Court, and then the Archbifhopis to judge of his Suf- ficiency. However the Bifhop is firft to examine him, 'tis exprefly re- quired by the (q) Canon, which is thus: The Bifhop, before he admits any Perfon into Holy Or- ders, fhall diligently examine him in the prejence of thofc Minifters who fhall affift him at the Impofition of Hands; and if the faid Bifhop have any lawful Impediment, he fhall caufe the faid Miniffers carefully to examine every fuch Perfon fo to be ordered, provided that they who fhall affift the Bifhop in examining and laying on Hands, fhall be of . his Cathedral Church, if they may conveniently be had, or Three other fufficient Preachers of the fame Diocefs ; and if any Bifhop or Suffragan {"hall admit any to Sacred Orders, who is not fo* qualified and examined, the Archbifhop of that Province having Notice thereof, and being afiified there* in by one Bifhop, fhall fufpend the faid Biihop or Suffra- gan fo offending, from making either Deacons or Prieffs for two Years. After fuch Examination, and not before, the Way 13 open for Admiffion, lnllitution and Induction. (?) Can. j f. Tis 106 #BifljOp0: Tis probable that this Canon had fomc refpect to the (r) Sta- tute called ArticuliCUri, by which 'tis enacted, That de ido- riietate Perfona pr<£fentat8 . IBifoopg. mentioned, to bind the SuccefTor if confirmed by the Chap- ter,* for this laftStatute doth not fay that it ihall be a Leafe for Twenty One Years abfolutely, and to commence imme- diately, but it mutt be for Twenty One Years from the time of the Commencement, and this is the Reaion why con- current (#) Leafes have been held good. They diftinguifh in Cafes of Tythes between a Leafe' foe Years and for Lives ; for if made for three Lives, habendum from Michaelmas next after the Date of the faid Leafe/tis void, becaufe Tythes cannot pafsby way of (?) Reverflon, where an Eftate for Life is limited, tho' they may by way of Dis- charge or Retainer. (2.) If there is an Old Leafe in being, it mutt beabfo- Jutely furrendred, or expire within a Year after the making the New Leafe. This mutt be underftood where the Bifhop makes a new Leafe without confirmation by the Dean and Chapter; but if more then One Year is in being at the time of the making the (z,) new Leafe and 'tis confirmed, fuch Leafe is good. (%J There muft not be a double Leafe in being at one and the fame time ; that is a (a) Leafe for Years, and another for Life. Thefe Leafes for Lives mutt not be to one for Life, remain- der to another for Life, &c. but the (b) Lives muft all ware together, for if 'tis other wife the Leafes are voidable. Neither can (c) Bifhops make Leaies for 99 Years, de- terminable upon Three Lives ; but a Leafe to one for Three Lives is good, for 'tis the fame in effect as a Leafe to Three for their Lives. f 4.) The Leafe muft be made of Lands , Tenements, or He- reditaments^ out of which an Annual Rent may be received, and not of things which lye in Grant, as Fairs, Markets, Ackowfons, Tythes, &c, and therefore Bifhop Jew ell having made a Leafe of a Fair in Sherborne, for Three Lives, ren- dring the Ancient Rent, which Leafe was confirmed by the Dean and Chapter, it was held void againft the Suc- ccllor, becaufe a Fair is no more then a Franchife, out of which a Rent cannot be referved. So where the 0) Bifhop of Carlijle made a Leafe of Tythes for Three Lives, this was likewife held void againft the SuccelTor, becaufe he had no remedy either by Diftrefs or (x) 1 And. 6s- (y) Sel. 1 3.1. (*>) 4 teon 78. (a) More. 2*3. 5 Rsp. a* (b) Cro. Car. 95. * Rep. 37. 4* I (0 8 Rep. 70. b, (o Years, and the Bifhop being Patron, together with the Dean and Chapter, confirms it, this is not void againft the SucceiTor, becaufe his confirmation pafTeth no Eftate ; 'tis no more then his aflent to a Leafe of parcel of the poUef- fionsof his Archdeaconry, and not of the Bifhoprick. (5.) The Leafe muft be of fuch Lands which have been ufually Lett for the moft part' of Twenty Years before the making the new Leafe. As to this matter, if 20 Acre s of Land hath been ufa-> Ally Lett, and a (i) new Leafe is made thereof, and of Ivso Acres more which had not been ufually Lett, referving the ufual Rent yearly, this Leafe is not warranted by the Statute, becaule part of the Land was not ufually Lett ; and tho' more Rent was referved for thofe Tm Acres, yet that will not make the Leafe good, becaufe the Rent ilTueth out of the whole. Anno 21 Car. 2. This Cafe happened, viz,. Lands be- longing to the Archbifhop of Tori were Lett for Three Lives, by Leafe, Dated Anno 1604. and there being one of theie Lives furviving in the year 1630, the Archbifhop (who was then) purchafed the Leafe, ' and did not Lett the Land for the fpace of 1 5 Years ; and the Civil Wars coming on, thofe Lands were Sequeftred, and no other Leafe made of them till the year 1663. The Court was divided whether this was a good Leafe or not ; thofe who held it good, in- fjfted that it muft be fo, becaufe, otherwife any Bifhop might keep Lands in his hands for 15 Years, if he lived fo long, and then fuch Lands could never afterwards be Lett : But thofe who held the Leafe void went upon this Reafon, (z>te») That under the pretence of (k) Antient Leai'cs a!a (f) Moor 778. 2 Cro. 17}. (V) ftaym 18. 2 Ssni. 303. (h) Cro. fliz, 430, (i) xlnft,44. b. (k) Sid. 41*. 1 Lev. 21 the no ,Bif&0p& the Lands would be Dcmifed, and none left for Hofpitality, for that was the reafon why that Claufe was inferted in the Statute, (viz.) That no Lands fhouldbe Lett but what had been Lett for the mott part of Twenty Years latt patt, &c. for if it had not been ufually Lett for that time, how could any Man know what was the Ancient Rent ? It hath been a Queftion. whether Copyhold Lands are com- prehended by the general word (Lands) in this Statute, be- caufe they, being Ettatesat'will, are not properly Demi fable; but it hath been adjudged iuch (/) Lands are within the Statute. My Lord Coke was of Opinion, that if Lands were in Leafe for Eleven Years, next before the making the new Leafe, 'tis fufficient, and that in fuch cafe it (hall be con- ftrued that they were ufually Lett, but Juttice Tmfden held otherwife; for, that the words in the Statute mutt import a more ancient time of being in Leafe, and (m) my Lord Chief Juftice Vaughan agrees with him, that by the words ufmlly Lett, fuch Lands can never be intended which have been Lett but once ; but the* words may be taken in two Senfes, the one forf the repeated A& of Leafing, the other for the continuance of the Lands in Leafe • and therefore Lands Leafed many Years fince, tho' but for once, may in propriety of Speech be called Lands ufually Demifed, that is, they have been in Leafe, which he tells us is the received fenfe of thofe Words. But what was not in Leafe Twenty Years before the making the new Leafe, cannot be faid to be Lett for the greateft part of that time. So if Lands had been ancienly in Leafe for Lives, and af- terwards kept in the hands of a Bifhop for Twenty Years, before the making the new Leafe, this ieems to be a good Leafe to bind the SuccefTor ; for the intent of the Law was not tp tie O) Bifhops ttrictly to the words of the Statute, but to preferve the ancient Rent. Tis true, it mutt be once (o) Demifed, otherwife it cannot be known what was the ancient Rent. (6.) The reddendum mutt be of fo much Rent which hath been ufually paid for the Land within Twenty Years, as aforefaid, and made payable to the LeiTor and his Suc- ceiTor?. (1) Moor 759: (m) VaugharuJ, 3fe (») Si& 41$, (0 Cro. But j&ffjopg; in But if in an old Leafe there is Rent referved,and an Heriot ; and in the new Leafe the Heriot is omitted, the (p) Leafe is good ; for an Heriot is no more then a Service, 'tis not an annual Rent, nor depending upon it. So, likewifc, if there hath been fome variation in former Leafes, yet if in the (5 this was confirmed by the Dean and Chapter, yet the Court were divided whether it was good againftthe Saccejfor ; they all agreed that 'it was void as tothePafture, becaufe it was of a new thing never granted before ; but whether that addition made the other part of the Grant void was the Qneftion ? upon which they were divided. Some were of Opinion that thefe were diftincfc Grants, and that one (liould be good, and the other void, again ft the Sttccrjfor. So where the ancient {hj Fee hath been cncrealed in a new Grant, fome are of Opinion that the Grant of the Office it fd£ is good, and likewife io much of the ancient Fee which was granted, but the reft ihall be void. (c) Cro. Ellz 2. 6$o. (d) io Rep. 60. b. (e) 1 And. 344. Cro. Eliz. 207. 1 leon jc?. Cro. Eliz. 6oq. 2 Cxo. 175. ft) 10 Rep. 62. (;; BriJg :r Cro. Ctt» 471 I (i;) aBrtfwal. 237. Bfot Bat in all thcfe grants off/) Fees it muft appear in Plead- ing, that they are ancient Fees, for tho* the Office is ancient, yet if the Fee is not fo too, the grant is void. And 'tis to be obferved, that all thefe (k) Grants arc to be made as ufud, before the making this Statute, therefore a grant of an Official by an Archdeacon, or of a CommiiTary by^ a Bifhop, is void againft the Swceffor, if granted in Reverfion where it was ufually granted in PoiTefiion, before the Statute ; for tlieie Offices are Hereditaments, and belong toBiihops a -id Archdeacons, and fo are comprehended by the very won' this (I) Statute ; and therefore if they were granted in Reverfion before the Statute, they may be fo ftill, but not without Con- firmation. Some are of opinion that if a Bifhop grants the Office of a ^ommiffary, 'tis good only during his Life ; for tho' an Eccle- fiaftical Jurisdiction may be executed by a fubftittite, yet his acts are in Law the ads of him who deputes him, for which he muft be anfwerable, and not the Deputy. So that if fuch a (m) grant (houldbe good againitthe Sacceffor, theu he muft be liable to the acls of a Perfon whom he never deputed, which feems very unreafonable. However, the grant of the Office of a Regifier, for Life in (») Reverfion, hath been held good, and that 'tis fufficienc Evidence to produce but one Grant thereof before the Statute; for that may be an inducement to believe that it was an- ciently fo Granted. And generally the Grants of fuch Offices for Life are good, if they are ancient and necefTary Offices ; for if a Bifhop had not power by Law to difpofe of fuch Offices for the Life of the Grantees, he would be ill ferved by Men whofe Titles' were fo precarious. But it he fhould grant fuch an Office fcr Life, and after- wards to another in Reverfion, fuch grant is void; and fo it is where an Office is granted to two for Life, if not ufually fo granted before the making this Statute. Therefore the Bifhop of Salisbury, Anno 1 1 Jac. granted the (o) Stervardfbip of his Mannours to Two tor Life ; and Twenty Nobles Fee ifluing out of Lands, parcel of his Bifhoprick, to be exercifed by them or their Deputies which was confirmed, &c. but held void againftthe Succeffor. For, tho' a Bifhop may grant an ancient Office to one, and there "} Brownl. 182. (k) Cro.Car. 2J8. Jones 263. Winch, Lut. 22. (0 2 Rol. Abr. IJ4- Jones 31 r- (m)Noyi$i,. (*) Oro. Cat. 279. Jones 31 9. Manch. 38. Cro.Car.;;;. 2 Rol. Abr.y i.;i. Wi"?b| ffcjtr, 2*, (•; ioRcp:;9. 1 2 IS n6 *Bla(Hjemp* is a necefllty that fuch grant iliould be good, for the reafoii abovementioned, yet there is no neceflity that he fhould make fuch a grant for Two Lives ; but if he Iliould, and one of the Grantees Dies in the life time of the Bifhop, who made the Grant, and then he Dies, ib that there is tut One Life in being againit the Succtffbr^ yet the Grant is void againit him ; for it was void when rirft made, and uSa 11 never be made good by any Contingency. Upon the whole Matter, as a Bifhop may gr^nt an an- cient (p) Office, with the ulual Fee, lb he may grant a new Ojfice which is of neceflity for him to Grant, and with a rca- ionable Fee, and fiich Grants fhall be good againit the Sue- ceffor, if confirmed by the Dean and Chapter. And there- fore, in the very fame Year in which this Statute was made, the Bifhop of Ely granted the Office of keeping his Houfe and, Garden, with a Fee of 3 /. per Ann. this was held good a- gaintt the Succeffor, tho' there was never any fuch Grant be- fore, becaufe the Office was neceflary. And yet but Three Years afterward?, Home Bifliop of Wincheifer, granted a Rent of 3/, 4/. &c. to Dr. Dale, a Civilian, pro con/tlio impenfo & impendendo, it was made a Quaere in Dyer, whether it was void againit the Succeffor, but afterwards held that it was, becaufe fuch a (q) Grant is not of neceffity 1 and it was not ofanOffice, but only a voluntary A6t or the Bifhop to choofe liich a Man to be his Coun- cil, which his Succeffor might not approve. Bla[phe??iy. (1.) By attributing to the Almighty any thing unbecoming his God-head. *Tis an Offence, <( (2.) By derogating from his Attributes. (3.; By attributing that to the Creature which is due to God afonc. T Here were formerly various Punifhmcnts for this Crime. Jujiinim the Emperor punifhed it with Death. Some- times it was punifiied by cutting out the Tongue ; but by the Civil Law the puniihment did not extend to Life or Limb ; for a Layman was Anathematizcd,and a Churchman Depof- cd ; and by the Canon Law, if the Blafphemy was publickly Committed, the Offender was to undergo publick Pcnnance, 0>) Gyo.C1r.4a* (1) Dyer 370- 1° ^p. $U but loontig of Eefigttnttoir, 1 1 7 but even in that cafe a Bifhop could abfolve him * but for a private Blafphemy any Pridt might do it. Our Saxon Anceftors were not guilty of this Crime, for a- monglt their Laws there is no mention of any iiich Crime or Punifhment for it. H. 3. appointed that Blafphemers (hould be arretted, but doth not tell us how they fhould be punilhed. King Ed. 6. being impowered by Acl of Parliament, ap- pointed Commidtoners to reform Ecclefiaftical Laws, and Anhbifhop Cr*nmcr was the firit in Commillion, who did the whole Workalmoft himfelf; but tho* it was fmiiried it ne- ver had the Royal Confirmation, for that was prevented by the Death of the King. However, 1 mentioned it to iliew what Punifhment the Reformers of thefc Laws thought proper to inriidt on Blaf- phemers, (viz,.) that they were to be incapable of any pub- lick Truft and Imployment, they were not to be fufYered to be WitnefTes in any Court, or to any Will, and were not to have the Benefit ot the Law. By the (r) Canon this Offence is .to be prefented to the EcsUfuiflicd Court in order to Punifhment ; 'tis comprehen- ded there under the Words of Wichdnejs of Life, for 'tis not exprefly named as Adultery, Whoredom, &c. and other Crimes are. Tis likewife punifliable by the Common Law, and that by way of indictment or Information ; for all Reproaches of God, or of the eitablifaed Religion, as to fay that 'tis a Cheat, or the like, tend to the DifTolution of the Goverment it felf, for the Chriftian Religion is part of the Law of the Land, and to call it a Cheat takes away all manner of Ob- ligation to the Government it felf ; and for this Offence one Taylor, Anno. 27. Car-. 2. was fined 1000 Marks, and was committed until he found Sureties for his good Behaviour du- ring Life, and was fet in the Pillory three Times, with 4 Paper fixed upon it (hewing his Oftence. Bo?icfs of Refignation. TPHE Queftion which I fhall examine under this Title is * whether a Bond with a'general Condition to refign upon fix Months Notice is good or not. mm^fmm ^ »— "P"l i"^1 ■■» 1 » % mi ■ «■■ ■» ■ i'i-r I 3 M n8 'Bottnsof JEUfigrtatfon. Thofe who hold fuch a Bond good, affirm there is no pofi- tive Law againft it ; but that on the contrary there is a folemn * Judgment given in the Court of Queens Bench, that the Bond is good, becaufe there is nothing bad in the Condition, that being only to refign upon Notice ; and that which gives a greater Authority to this Judgment is, that it was affirmed upon a Writ of Error in the Exchequer Cham- ber, where all the Judges were of Opinion, that it was lawful for a Man to bind himfelf in a Penalty to refign, be- caufe that may be for good and valuable purpoies, as to refign ir he take another Benefice, or to refign when the Son of his Pa iron comes of Age. The (f) Bifhop of Worcefter himfelf, who argues againft the Validity of fuch Bonds, allows that there maybe a law- ful Truft in fuch cafe for a Minor ; but if the Parfon enters into a Bond to refign, then he calls it a confidential Simony, I wifh he had told us, that fince there can be fuch a Truff, what legal Obligation there could be to compel the Perfor- mance of it, when the Minor comes of Age, and how that Truft fhall be executed if the Parfon ("hall refufe to refign. But he will not allow that the Judges gave a tolerable reafon to fupport their Judgment, for it amounted to no more than that a Bond is good, becaufe a good reafon may be given for it, which deferves no other Anfwer than that it may be bad, becaufe a bad reafon may be given for it ; and he inftances feveral fuch bad reafons, viz,, fuch a Bond makes a Parfon a Slave to his Patron, and fubverts the juft Rights of the Clergy. I fhall only fay that this is to araign a folemnjudgment given by all the Judges of England, in the Cafe above-men- tioned, and there were fonie of them Men eminent in their ProfefTion ; for my Lord Cole was then chief Juftice of the Common Picas, and Tanfeild chief Baron of the Exchequer • and the Court iudgedonly of the Law, as it appeared before them upon the Bond with fuch a general Condition to refign upon Notice, there was nothing of Simony appeared to them ; and if fuch a Bond might be given upon a good Rea- fon as the Bifhop admits it might, why muft it be fuppofed to be void, becaufe an ill ufe may be made of it, for that is contrary to a Rule in Law, (ziz>>) imquum non eH prafx- mendnnu ?1*K§~~ verf, Lawrence. (/) StilL 345, About TBonWof Kefisnatfotn n9 About Nineteen Years afterwards the like Cife came in question again in the fame Court, between (0 Bmngtomni Wood, and the like Judgment was given, I fiippofe, upon the Authority of the former Refolution ; for Jujfict Jmes, who reports the C;ife tells us, that th.e fudges had icen that Prefident, and thereupon they gave Judgment tor the Bond. But the Jtijhop of Worte/ler will not allow one or two folemn Dechiona to pais for Law, but only llic1: which are confonant to one another in a Ion;; Scries and Succeflbn of time, which did not happen between thefe two Judgments, for the one was %Jac. and the other 5 Car. 1. and that be- tween thefe two Cafes there was another of the lame Nature, Annoi*y.Jac. where there is a contrary Judgment, viz., that fuch a Bond was Simonaical. . I confefs there is fuch a Cafe reported by (h) Mr. Attorney i\Sj, not as a folemn Judgment, but only as an Opinion of the Court Obiter that it was Simony ; for it appears by the very Book that it was not the Point in Queliiori, and the Report it Cdf is of no great Credit in the Law ; for if the contrary Opinion Anno% Jac. was Law, and fo held by the unanimous Opinion of all the Judges of England, 'tis ftrange it fhould be altered by one Court, and but feven Years af- terwards ; and that neither my Lord Herbert, who was then Chief Juftice, nor Hvtton one ef the fudges of that Court, nor any other Reporter of that time fliould take any Notice ^i itbefjdesMr. Nay. We are told by the fame (x) Bifhop, that fuch a Bond hath been condemned in Equity, when an ill ufe hath been made of it, and 'tis reafon it fhould ; and I believe a per- petual Jurifdi6tion was decree 1 tfgairtft it, not becaufe it was Simonaical, but became th --Patron mile a bad ufe of it to defraud the Parfon of his Tythes ; for it was agreed on all Sides, that the Bond it ie!f was good, and fo is this Con- dition following. Whereas P. S. it within a fhort time to be pre feme d, in'fi tinted And Matted to the Church of H. in the Co*n?y of S. if therefor* the j Aid P. S. (hall after his Admiffion, InfiitHtion, and lndnllior, thereunto, at any time, upon the Reqnef} of E. T. his Heirs, Exe- cutors or Adminijlrators, re ftgn the J'aid Church or Rectory of H. to the Ordinary of the Diocefs of C. for the time being, fo that the faid E. T. Patron of the /aid Church, or his Heirs, may prefe.nt CO Cro. Car. 18^. Jones 22*. («) Noy 23, (<0a Gfancj Rep. I8£ 120 'JButial. again to the fume, discharged of all Incumber ances done Crftffired by the /aid P. S. that then, &c. Upon the whole matter thefe Bonds to rcfign generally upon Wotice, have been held good both in Law and Equity, tho' we are told they areSimoniacal, becaufe they are Bargains to obtain Prefentations, and contrary to the Oath which Cler- gymen take, (viz.) That they have not made any Simonakal Con" trail or Promife whatfoever concerning the fame. I fhall not controvert this Matter whether 'tis Co or. not, I have declared what the Law is in reference to fuch a Bonc^ and fhall only add, that if 'tis put in Sute and the Defendant pleads Refignaviton fuch a Day to the (y) Bifhop, and that be accepted it, this fhall be tried by the County, and not by Certificate from the Bifhop. And here, by the way, 'tis to be obferved, that a Benefice with Cure cannot be void by the fole A6t of the Party, vU. by Refignation, without the Acceptance of the Bifhop, be- caufe he is to give Notice to the Patron that he may prefent again ; but if herefufes to accept it, then nothwithftanding the Reilgnation the Incumbent continues fo ftilU Burial. THE Freehold of the Church is in the Incumbent, and fo is the Freehold of the > Church-yard, and therefore none can be buried in the Church wihout Leave, but they may in the Church-yard, becauie 'tis the Burying-Place of the People ; and tho' he gives leave to bury in the Church, yet fomething may be due to the (*) Churchwardens, by Cu- ilom, for buring there. But a Minifter cannot refufe to bury the Dead, if he doth, having Notice, and the Corps being brought to the (a) Church, he fhall be fufpended from his Miniftry for three Months. By the Statute 30 &r. 2. <:*/>. 3. the Mininifter of every Parifh is to keep a Rcgifter of the Burials, and of Affida- vits of Perfons buri-d in Woollen. Thefe Affidavits mult be brought within Eight Days after the Burial, if not, the Minifter mull enter a Memorandum of the Default, and of the time when he gave Notice thereof to the Pari (h Officers, which Notice muft be given in Writing under the Hand of the Minifter, and this may be done at (}) Sid, 317. f» ) Cro. j 67. (*) Can. 68, any any time, but the beft way is foon after the Eight Days arc expired, the Minifter making Default many of thefe particu- lars, forfeits five Pound. The Affidavit mutt be taken by a Juftice of Peace, Mayor, or fuch like Officer in the Parifh where the Party was buried ; and if there is qonein that Pariu\ then by a Minifter in the County, excepting in that Parifh the Corps was buried. He who takes the Affidavit muft let his Hand to it, and it mull be attetted by two Witnefles, who were prcfent at the taking it. a Canons. Under this Title I (hall comprehend, (i.) Foreign Canons. C2O Such which have been received here* (3.; The Power of making New Canons. AS to the Firft, Conjlantine the Great, and the Firft Emperor, ** who gave Christians fome reipite from Perfection, caufed general Councils and national and provincial Synods to be aiTeinbled in his Dominions, where amongtt other things Rules were made for the Government of the Church, which were called Canons, the Subftance whereof was at firft colle&ed out of the Scriptures, or the ancient Writings of the Fathers. I fhall not trouble the Reader with a long Hiftory of pro- vincial Conftitutions, Synodals, Gloflaries, Sentences of Popes, Summaries, Refcripts, and other Rhapfodies with which theCanon Law hath by degrees been compiled fincethe Day of that Emperor ; 'tis fufrxient to fhew, that thefe things were collected in three Vol urns, by Ivo Bi/hop of Char- tres, about the 14th Year of our (b) King H. 1, which are commonly called the Decrees, and thefe were corrected about Thirty five Years afterwards, by (c) Gratian a Benedi&ine Monk, and are now the moft ancient Volums of the Eccle- ilaftical Law. Thefe Decrees were not at firft ftanding Rules* to bind tj,e People in general, but were only made for the Government of the Clergy. In a fhort time afterwards Attempts were made by the papal Authority, to draw the Laity to obey thefe Decrees, V>) Anno ijj4. (c) Rydly ?«. and Hi Canons. and this was done, as fome Authors tell us, Timide & pre* cario, by propofing certain Rules for Fafting-Days, which were called by the mild and gentle Name of Rogations and not Canons j and the Laity, by this • means, complied to obey them. But all the Ecclefiaftical Laws of England were not deri- ved from Rome ; for tho' fome foreign Canons were received here before the Conqueft, yet the Saxon Kings, after they were converted from Paganifm, did, by the Advice of their Clergy within this Realm, make feveral Ordinances for the Govern- ment of the Church ; and after the Conqueft feveral provin- cial Synods were held here, in which Confutations were made, which are part of our Ecclefiaiucal Laws at this Day. Thefe Decrees, corrected by GratUn, were publifhed in England in the Reign of King Stephen, and the reafon of the Publication at that time, might be to decide the Quarrel be- tween Tlieobald Archbifhop of Canterbury, and Henry Bifhop of Wmton, the Kings Brother, who being made a Legate, the Archbifhop looked upon it as a Diminution of his Power, and an Encroachment upon that Priviiedge which he had as Legates natus. However thefe Decrees were received by the Clergy of the Weflem Church, but never by thofe of the Eajl, which is the reafon why their Priefts might marry, which thofe of the Weftdid not, becaufe they were prohibited by thefe Decrees. The next, in order of time, were the Decretals, which are canonical Epiftles written by Popes alone, or aflifted by fome Cardinals to determine any Controverfie, and of thuie there are likewife Three Volums. The firft was compiled by Raimmdtts Barcinius, who was Chaplain to Pope Gregory the Ninth, and publifhed by him a- bout the 14th Year of our King * H. 3 •, this was appointed to to be read in all Schools, and was to be taken for Law in all Ecclellaftical Courts. About Sixty Years afterwards Simon a Monk of Walden be- £an to read thefe Laws iu the Univeruty of Cambridge, and the next Year in Oxford. The fecond Volume was collected, and put into Method by Pope Boniface the 8th, and publifhed about the 27th (d) Year of our King Ed. 1. The third Volume was collected by Pope dement the 5th, * Anno 1 226. (4) Anno 1258. ani Cancitg, ii? andpubbfbed in the Council of Vienna^ and liktwife here, (?) Anno 2 Ed. 2 and from him were called the Cleftcntints. Eachoi thele Volums is divided into live Books, contain- ing almoft the fame Titles. Thcfirft Book contains the Authority of Cuitoines, Confti- tutions and Rcfcnpts, the mannor of confirming and conic- crating Archbifhops and Biihops; it treats- of Ktfignatkn of Benefices, the Duties of Biihops toinfpect the inferior Clergy, that Divine Service may be performed ; the Times of order- ing Perfons to the Minilhy, and ho,v they arc to be qualified, that Mmifters Sons (hould not immediately fyeceed their Fa- thers in the fame Benefice, that no Villains, Bigamies,' or deformed Perfons be admitted to Holy Orders. Then it fets forth the Antiquity and Office of Archdeacons, Vicars, Judges Delegates, and many ether matters relating only to the Perfons of fuch who are concerned in Eccleiialti- cal affairs. The fecond Book of the Decretals treats of Things and not of Perfons ; as for inftance : It treats of .the manner of Citations, Libels, and proceedings therein to Sentence, and fomethingtoncerning Appeals. The third Book treats of the Lives and Behaviour of Clerks, who may be married, and in what cafes they may be non-re fiient : Then it treats of Prebends and Dignities, which may be had by Inttitution from the Bifhop, of the Avoidance of Benefices, and time of Laps, that Biihops ihall not fell, &c, without the content of the Chapter ; in what cafes the Goods of the Church may be fold, and in what not. Then follows a Treatife of la ft Wills, the SncceflTion of Inteftates, aDifcourfeof Tythcs, Burials, firft Fruits and Of- ferings, of the Right of Patronage, of Synodals and Procu- rations, of Confecration of Churches, Celibacy, Divine Service, Eucharift, Monks, Baptifm, of Papifts not bapti- zed, Faffing, Purification of Women, building and repair- ing Churches and Church-yards, Clerks not tu middle in civil Affairs. The fourth Book treats of the difference between Efpoufals and Marriage ; of clandeff ine Marriages, and how to be made good ; of a Woman promising two Men whofe Wife the (hall be ; of a Man marrying a Woman with whom he had formerly committed Adultery, if fhedid not know that he had a Wife then living he cannot leave her after the Death of 124 CfltlOtW* of his firft Wife ; whether leprous Men may marry or not ; of him who hath known his Wife's Sifter, or his own Cou- iln German, within what Degrees of Confanguinity or Af- finity a Man may marry ; what Children are legitimate; of Divorces, and of fecond Marriages. The fifth Book treats of criminal Matters, in which the Spiritual Court hath Jurifdiclion, as Simony, of Hereticks, Scbifmaticks, 'the Puniihment of Jem that they (hall not take a Chriftian to be their Servant ; that if a Servant is a Jew, they (hall fell him to a Chriftian for a Shilling. That they may repair their eld Synagogues, but not build new ones ; that they fhall not open their Doors or Windows on Good Friday ; that their Wives fhall not have Chriftian Nurfes, or be Nurfes to Chriftian Women ; that they wear diftindfc Apparel from Chriftians. Then it treats of Apoftates, Anabaptifts, the Punifhment of killing our own Children ; of Childeren expoft'd to the Compadion of others ; of Murders and ManQaughter ; of Whoredom, Adultery, Rape, Thieves, Robbers, Ufury, De- ceit, Falihcod, Sorcery, Collufion, Cofenage, Children not to be punifhed as Men ; of Clerks who are Hunters and Hawkers, &c. Thefe Decretals were never received here, or any tohere elfe, but only in the Pope's Dominions, as particularly thtCanon, concerning Inveftiture of Bifhops by a Lay Hand. About the 10th Tear of the fame King Ed. 2. Pope John tkeiid publ ilned his Extravagants. Now as to us here in England, even at that time when the papal Authority was at the Higheft, none of thefe foreign Canons^ or any new Canons, made at any national or provin- cial Synod here, had any manner of Force, if they were againft the Prerogative of the King, or the Laws of the Land. Tis true, every Chriftian Nation where the Pope's Supre- macy was acknowledged, fent fome Bifhops, Abbots, or Priors, to thefe foreign Councils, and generally Four were fent; out of England, audit was by that means, together with the, Allowance of the civil Power, that fome Canons made there, were received here, but fuch which were againft the Laws were totally rejected ; I fhall inftance in a few, and fa proceed. Inthe(/) Extravagant* of P$pe John, there is a Canon if) Tit, de deciaai cap. ;j, Canon?. 12 $ that a Bifliop (hall have the Tythes of all fuch Land within his Diocefs, which is not appropriated to any Parifh. Anno yEd.%. a Queftion arifing, who fhould have the Tythes of fuch parts of Foreji Lands which were not within the Bounds of any particular ; Sir William Herfe, who was then chief Juftice of the Common Pleas held, that the Bifliop of the Diocefs fhould have them, and probably he grounded his Opinion upon this Canon, but my (£) Lord Coke tells us, that Canon was never received here , for it was the Prerogative of the King to grant fuch Tythes to whom he would," and accordingly, Anno 22. Ed. 3. the Grantee of the King brought an A&ion againft iome fccclefiaflicks, con- cerning Tythes anting in Rockingham Foreji ; and thmThorpl Chief Jujlice of the fame Court, held the Right to be in the King, and by confequence in his Grantee. But Simon Iflipy who was then Archbifihop of Canterbury, being a Man of an ambitious Temper, and not contented with that Grant which he had got from the Pope to receive a Subfidy of all the Clergy of the Diocefs, for the better Sup- port of his Archiepifcopal Dignity, petitioned the King in Council, that he might have thofe Tythes; and becaufe the Matter was not then determined by the (h) Council, the chief Juftice gave no Judgment in the Cafe depending before him. Another Inftance is, that by the Canon Law Parfons were to repair the PariuS Churches, but this being contrary to the (i) Cuftom cf the Realm, that Canon was never received here, for the Parifhioners always repair it. The Canon in the Decretals, that Children Born before Marriage fhould be Legitimate, if the Parents afterwards Married was not received here. Tis true, fome attempts were made in Parliament to Eftablifh this into a Law, and particularly by the (k) Parliament of Merton, when the Bi- fhops interceeded with the. Temporal Lords for that purpofe, but anfwered una voce, that they would not change the Laws of the Land; and (/) Glanvil tells us, what was then attempt- ed was contra jns & confaetudinem Regni. By a Canon made, at a Council held at Lyons, a Man twice Married, or who had Married a Widow, was not to have the benefit of his Clergy upon a Conviction for Felony, The Bifhops in thofe days interpreted this Canon, to extend (j) 2 Inft. 647; (h) 22 Aflize Pliso, 7*. 0) 2 Inft, 6s 3* (k) Cap 9. (I) Lib. 7* cap.if. onlv n6 canonsr. only tofuch who were twice Married after that Council, and therefore demanded thofe Clerks who were twice Married be- fore, but becaufe the Judges of the Common Law had a right to determine the allowance of this Privilege, and becaufe by the difaliowance the life of a Man was to be taken away, therefore they would not allow this Canon till it was declar- ed in Parliament, that as well thofe who were Married twice before, as thefe who were twice Married after, the Council fhould not be delivered to the Prelates, but iliould be deprived of the benefit of their Clergy : But this is now taken away by the Statute i £. 6. cap. 1 2. So the Canons for exempting the (w) Clergy from the Temporal JurifdicYion were never abfolutely received here ; 'tis true, the Clergy had many Privileges, but were never to- tally exempted from Trials in the King's Court. So the Canons concerning Appeals, Provifors, Difpenfati- ons, &c. were never received here by the general confent of the People ; for ibmetimes they were oppoftd, and at other times obeyed, as the Authority of the Pope prevailed here. That Canon in the Dzcretah, prohibiting the Son of a Clergyman immediately to fucceed his Father in the fame Benefice, without a Difpeniation from the Pope, never pre- vailed here. This was the opinion of Juftice Doderidges in the Cafe of Stokes and Sykes, where the Son was prefented by a Lav Patron to the Benefice, after his Father; the Bifliop refuted to admit him, bv realon of this Canon ; thereupon the Patron prefented Syhfi% who was Admitted, Inttituted and Inducted ; and the Bifhop and Incumbent were Sued in the Delegates, but they obtained a Prohibition, and the Book makes a Qnare what remedy for the firft Prefentee. In many other Cafes, Foreign Canons were never received here. As that concerning the Marrying the Woman with whom he had committed Adultery ; the prohibiting any Sale of Advowibns ; the revocation oi^ a Presentation by a Spiri- tual Patron, and feveral others. But fbme of thefe Foreign Canons were received here, and obtained the force of Laws, by the general approbation of the Kins; and People; (thoJ it may be difficult to know what thefe Canons are) and it was upon this pretence that the Pope claimed an Ecclefiattical Jurifdiclion here,independent of the King, and fent his Legates hither, with CommiflionSj to determinate Caufes according to thofe Canons. Poph. xj7. (n) Latch ij»i» This This created Quarrels between Kino;s and Several Arch- bi (hops, and other Prelates, who adhered to thofe Papal Ufurpations. For fuch Foreign Canons which were received here, never had any force from any Papal Legatine, or Pro- vincial Conltitutions, but from the acceptance and ulage of the Church here : For the Bilhops who were lent from hence to aflilt in Foreign Comcils, confented to the Canons made there, yet that did not (o) bind till allowed by the King and People, as I have already obferved. However, when a Canon is thus received upon an ancient Praclife and general confent of tbe People, in fuch Cafe 'tis part of the Law of the Land. Befides thefe Foreign Canons , there were feveral Laws and Conltitutions made here, for the Government of the Church, all which are now in force ; but had not been fo without the AlTent and Confirmation of the Kings of England. For even from William the Firlt, to the time of the Reformation, no Canons or Conftitutions made in any Synods here were fuffered to be Executed if they had not the Royal AlTent. And this was the common ufage and practice here, when the Papal ufurpation was moft exalted ; for if at any time the Ecclefiaftical Courts did by their Sentences endea- vour to enforce Obedience to fuch Canons, the Courts, at Common Law, upon Complaint made, would grant Pro- hibitions. So that the Statute of Submiifion, which was afterwards made Anno 25 Hen. 8. feems to be Declarative of the Com- mon Law, thatihe Clergy could not dejure, and by their' own Authority, without the King's affent, Ena£ or Execute any Canons. Thefe Canons were all Collected and Explained by Lynd- mod, Dean of the Arches, in the Reign of Hen. 6. and by him reduced under this Method. (1.) The Canons of Stephen Langton, Cardinal and Arch- bifhop of Canterbury , made at a Council held at Oxford Ann* 6 Hen. 3. (2.3 The Canons of Cardinal Otto, the Pope's Legate; who held a general Council in St. Paul's Church, Anno 21 Hen. 3. which from him were called the Conftitutions of Otto ; upon which John de Athon, one of the Canons of Lin- coln, did write a Comment. (3.) The Canons of Boniface of Savoy, Archbiihop of Canterhury, Anno 45 Hen. 3. which were all ufurpaiions upon («)fcK|jj*i P4lm4i$, Jones 2 to. the i23 Caiton0. the Common Law, as concerning the boundaries of Pan- flies ; the right of Patronage, and again!* Trials of the right of Tythes in the King s Courts, againft Writs of Prohibition, &c. And tho' he threatned the (/>) Judges with Excommunica- tion (of which fame were then Clergy-men) if they difobeyed the Canon?, yet they proceeded in thefe Matters according to the Laws of the Realm; and kept the Ecclefia (ileal Courts within their proper jurifdiclion. But this occafioned a variance between the Spiritual and Temporal Lords, and thereupon the Clergy, 31 Hen. 3. ex- hibited feveral Articles of their Grievances to the Parliament, which they called Articuli Cleri, the Articles themfelves are loft, but tome of the Anfwers to them are extant; by which it appears that none of thofe Canons made by Boniface were Confirmed . (4.) The Canons of Cardinal Ottobon, the Pope's Legate, who held a Synod at St. Pad's, Anno 53 Hen. 3. in which he confirmed thofe Canons made by his Predeceffor Otto, and Published fome new ones ; and by his Legatine Authority commanded that they ihould be Obeyed : Upon thefe Ca- nons, likewife, the faid John de Athon wrote another Com- ment. (5.) The Canons of Archbilhop Peckham, made at a Synod held at Reading, Anno 1279. 7 E^w. I. (6.) The Canons of the fame Archbifhop,made at a Synod held at Lambeth, Two Years afterwards. (7.) The Canons of Archbilhop Winchelfea, made Anno 34 Edrv. 1. f 8.) The Canons of Archbifhop Reynolds, at a Synod held at Oxford Anno 1322. 16 Edw. 2. (9.) The Canons of Synton Mepham, Archbifhop of Can- terbury, made Anno 1328. 3 Edw.%. (10.) Of Archbifhop Stratford. (n.) Of Archbifhop Synton Ijlip, made Anno 1362. 37 Ehv. 3. (12.) Of Symon Sh dbnrj Archbifhop of Canterbury, made Anno 1378. 2 Rich. 2. (1 3.) Of Archbifhop Arundel, made at 2L Synod 2Lt Oxford, Anno 1403. TO Hen. 4. (14.) Of Archbiflv p Chicheley, Anno 1415. 3 Hen. 5. (15.) Of Edmond a nd Richard,^ Archbi (hops of Canterbury, who immediately fuceeededthe atbrefaid Stephen Langton. (;) 2 I aft. S9P. ■ But Canon*. 129 But thefe Canons being made in times of Papal Authority tee, were (bon after the Reformation intended iikewife to be Reformed by Archbifhop Cranmer, and forne other Comauf- fioners appointed for that purpole, by Hen. 8. and Edw. 6. the work was finilhed, but the King dying before it was con- firmed, it fo remains to this day. Tiie Book is called Reformatio Legum Ecclefte flic arum ex Au- thorit ate Regis, Hoi. 8. inchoata&per Edw. 6. 'provecla, Sic. it was put into elegant Latin by Dr. Haddon, who was then Univerfity Orator of Cambridge, afTiited by Sir John Cheek, who was Tutor to Edw. 6. The next thing to be confidered is, the Authority of mak- ing Canons at this day; and this is grounded upon the Statute 2% Hen. 8. commonly called the (q) Ad of SubmiiTion of the Clergy, by which they acknowledged that the Gnvocationhad been always aiTembled by the King's Writ 5 and they pro- mifed in verbo Sacerdotis, not to attempt, claim, or put in ufe, or enacl, promulge, or execute any new Canons, in Con- vocation, without the King's Aflent or Licence. Then follows this enacting Claufe, vi*. That they {hall not attempt, alleage or claim, or put in ufe any Conttitutions or Canons without the King's AiTent. And fo far rhis Acl is declarative of what the Law was before ; for Archbifhop Hubert holding a provincial Council in the Reign of R-~s. was prohibited to proceed in it by Jejfery Fitk,peter, who was then Chief Juftice of England, becaufe he had not the King's leave. But the Claufe beforementioned extends to fuch Canons which were then made both Beyond-Sea and here, viz. to Fo- reign Canons, that they fhould not be executed here till re- ceived by the King and People as the Laws of the Land ; and to Canons made here which were contrary to the Pre- rogative or to the Laws and Cuftoms of the Realm. This appears by the Provifo, That no Canons fhall be made or put in Execution within this Realm, which fhal I be con- trary to the Prerogative or Laws. But the next are negative Words, which relate wholly to making new Canons, viz. nor make, promulge or execute any fuch Canons without the King's Aitent. Thefe words limit the Clergy in point of JurifdidHon, viz. That they (hall not make any new Canons but in Convocation ; and they cannot meet there without the King's Writ ; and when they are met and make new Canons, they cannot puc (q) Heft, 8. cap: jp, K them i3° Canons them in Execution without a confirmation under the Great Seal. Some years after this Statute the Clergy proceeded to ad: in Convocation, without any CommilTion from Hen. 8. But the Canons which they made were confirmed by that King, and fome of his Succeflbrs, as particularly the Injunctions Publifhed Anno 28 Hen.%. for the abolifhing fuperftitious Holy-days ; thofe for Preaching againft the ufe of Images, Reliques and Pilgrimages ; thofe for repeating the Creed, "the Lords Prayer and Ten Commandments in the English Tongue. Sometimes that King proceeded by the advice of his Bi- shops out of Convocation, as about the Injunctions Publish- ed 'Anno 30 Hen.8. for admitting none to Preach but fuch ivho wereLicenfed : Thofe for keeping a Regilter of Births, Weddings and Burials; for the abolifhing the Anniverfary of Thomas Becket. The like may be faid of thofe Injunctions Publifhed Anno 2 Edw. 6. prohibiting carrying Candles on Candlemas-day, and Allies in Lent, and Palmes on Palm-Sunday. Queen Elizabeth in the Second Year of her Reign Publifhed fever a 1 Injunctions by the advice of her Bifhops. And Two Years afterwards fhe Publifhed a Book of Orders without the confirmation of her Parliament. Tis true, when fhe was fettled in her Government, all Church affairs were debated in Convocations authorized by her Power. And fever al Canons were made in her Reign, and confirmed by her Letters Patents ; but becaufe fhe did not bind her Heirs and Succeffors to the obfervance of them, thofe Canons expired with that Queen. The old Canons were (till in force in all thofe Reign? abovementioned. But (q) Anno 1 Jac. the Clergy being law- fully ailembled in Convocation, the King gave them leave by his Letters Patents to Treat, Con f nit and Agree on Canons, which they did, and preiented them to him, who gave his Royal AlTent • and by other Letters Patents did for himfelf, his Heirs and SucceiTors, ratify and confirm the fame. Thefc Canons thus Ettablifhed were not then invented, but were Collected out of iuch Ordinances which laid difperfed in feveral In junctions Publifhed in thofe former Reigns, and out of fuch Canons and other Religious Cultoms which were made and ufed in thofe days ; and being thus confirmed are the Laws of the Land, and by the lame Authority as any other part of the (r) Law; For being Authorized by the (?) Anno 1603, (r) Vaug. J27, Kings Canons 131 King's Commiflion according to the form of the Statute 25 Hen. 8. they are warranted by Ad of Parliament ; and fuch Canons fo made and confirmed fhall bind in (s) Ecclefiaftical Matters as much as any Statute. Tis true, an A6t of Parliament may abrogate any Canon, unlets it confifts in enjoining ibme Moral Duty,* but a Canon not confirmed by an (f) Act of Parliament cannot alter any other Law. Tis agreed that Canons made in Convocation and confirmed by Letters Patents bind in all Ecclefiaftical Affairs, that no Canons in England are abfolutely confirm- ed by Parliament, yet they are part of the Laws of the Land, for the Government of the Church • and in fuch cafe bind the Laiety as well as the Clergy, that tho' fuch Canons cannot alter the Common Law, Statutes, or Queen's Prerogative, yet they may alter other Canons, otherwife ths C nvocation could not make new Canons. Ail that is required in mak- ing fuch Canons is, that the Clergy confine themfelves to Church ArTairs,and not to meddle with fuch things which are fettled by the Common Law. Some of thofe Canons made in 1603. are now obfolete, and do not concern either the Government of the Church, or the right of any particular Perfon ; as forlnrtance the 74th Canon, which requires that the beneficed Clergy fhall wear Gowns with (tanding Collars, and Square Caps ; and when they Travel they fhall wear Cloaks with Sleeves, but without lon^ Buttons. That a Parifh Clerk (hall be a Man who can Write and Read, and be competently skilled in Singing. Thefe things are feldom or never made any Articles of a Vifitation, for the Habit is totally difufed, tho' the Reafon (till continues, viz,. That there fhould be a decency amongft Clergy-men to procure their outward Reverence ; but for Parifh Clerks, 'tis generally known, thofe in the Country cannot Write, and ibme can fcarce Read or Sing. So that we fee Cuftom prevails againft the ftanding Canon3 of the Church, and 'tis reafonabie it fhould be f6, lor other- wife we mutt not Kneel at Prayers between Eafter and Whit- fantide, which was anciently prohibited : And the general difufe of a Canon, not in contempt to Authority, but by a tacite connivance of our Governors, and without any ad- monition to obey it, may in fome meafure abate its force. Now, as to the Matter of thofe Canons, that which tends to promote the Honour of GO D and Service of Religion, (') Moor 785, (») 3 Vtw, 4», K 2 mull is* Canons* muft neeeffarily bind our («) Coniciencies. And fuch are t,ioie which enjoyn the fober converfatron of Minivers, prohi- biting their frequenting Taverns, playing at Dice, Cards or Tables : This was anciently prohibited by the Apoftolical Canons, and in the old Articles of Vifitation here, and in feveral Diocefan Synods. Soarethofe Canons which relate to the Duties of Minifters in Praying, Preaching, Adminiftring the Sacraments, and Vifiting the Sick, all thefe are obligatory in point of Con- fidence. I fhall conclude this Article with theCanDnsmadein 1640. tho' they are not in force, and the Reafon is as followeth. In the Year 1639, a Parliamentary Writ was directed to theBifhops to Summon their Clergy to Parliament adconfen- tiendum, &c. and the Convocation Writ to the Archbifhops ad traUand, & confentiend. The Parliament met on the 1 3th of April, 1640. and was diftolved on the 1 5th of May following. Now, tho' the Convocation filing by vertue of the firft Writ directed to the Bifhops, .muft fall upon the diiTolution of that Parliament, yet the Lawyers held that they might ftill continue filing by virtue of the King's Writ to the Arch- bifhops : for being called by that Writ, under the Great Seal, thev might fit till diiTolved by the like Authority. But this being a nice Point, a Commiiiion was granted about a Week after the diiTolution of the Parliament, for the Convocation to fitt, which they did, and made thefe Canons, which were confirmed by the King. The Objection againft them wasj That they were not made purfuantto the Statute 2^ Hen. 8. beforementioned, becaufe they were made in a Convocation, fitting by the King's Writ to the ArchbilliopSj after the Parliament was dijfolved, tho' there is nothing in the Statute which relates to their (king in time of Parliament only ; yet that being the proper time for the Con- vocation to fit, the making thefe Canons at any other time was imputed to the Bifhops as a fault, and to move the People againft their whole Order • which was afterwards abrogated in thofe Tumultuous times which followed. Therefore, after the Reft oration, &c. an Act was made to reftore them likewiie to their ordinary Jurisdiction, in which Ad there was a Provifo that it fhould not confirm thofe Ca- nons made in the (V) Year 1640. which Claufe or Provifo makes the King's confirmation void. And thus theEcclefia- ttical Laws were left as they were before the Year 1639. lu) Ginon;;. (*) 13 Car, 2. cap. 12, From Catfjenratfctmt* 133 From hence we may conclude, that Canons fhould be made in a Coi vocai i in, fiting the Parliament that beins; fo made, they are to be confirmed by the Queen, and that with- out fuch Confirmation they do nnt bind the Laity, much lelsany Order or Rule made by a Bifihop alone, where there is neither Cu(toin or Car or it; as for inftance : The ty) Ordinary commanded that a Woman coming to be churched fhould be in a Vail, and kneel at her Entrance in- to the Church, and pray towards the Eajty this was held to be void, becaufe the Bifhop had not t'^ impoie fuch new Ceremonies, where there was neither Cultom or Canon to warrant them. Cathedrals ; See Churches. Cathecfraticum. HTHIS is a Tribute due to the Bifhop from his inferior ^ Clergy, (vie.) a qualibet Ecclefia, at, the time of his Vi- fitation, or as {zj Sir Henry Spelman tells us, per Diocejlm AmbuUns, that is in his Vifitation by Pariihes. The Sum atfirft was incertain, but at the fecond Council held at Braga in Portugal, it was limited to two Shillings ; and by the leventh Council of Toledo inSpain, it was decreed, that he fhould not preiume to take any more. This Payment began when the Revenues of the Church were no longer received by the Bifhop, for in the firft Ages of Chriftianity he received all, and distributed part to his Clergy for their Maintenance ; but when once the Clergy had a fixed and fettled Maintenance, then they began to claim this Duty in Nature ot a Rent paid by the Tenant to his Lord, of whom he holds, in Argumentum Subjettionis, and it was czWz&CathedraticHm in honorem Cathedra, and 'tis now be- come onus Eccle/iaftictsw, bu: 'tis not by Innovation, for 'tis fettled by Prefcription. Caveat. »TP IS ufual where the Right of Patronage is likely to be A contefted, for ^Caveat to be entered with the Bifhop's Rcgilier by one of the contending Parties, thus : to) 2 Rol, Air. 32$; fcj Spelnw Glosin vcrbo. Jt 3 Gf?| D i34 Cafieat Caveat Epifcopus C. ne quis admittatur ad Eccleftam de H. nifi convocatus, R. B. &c. The Canonifts allow this to be done in the Life- time o>{ the Incumbent, quia veretur damum futurum ; and that if ano- ther is inftituted after iuch a Caveat entered, without Notice given to him who entered it, the Inftitution is void. But 'tis otherwife at (a) Common Law, for a Cavest is only for the Benefit of the Bifhop, and to prevent his being found a Difturber ; it doth not p^eferve jus ilUfum fo as to make all Subfequents Proceedings void, becaufe it doth not come from any Superior; 'tis the fame in the Spiritual Court as 'tis in the Temporal ; that is, 'tis only a cautionary A6fc for the better Information of the Judges. As for inftance : A (b) Caveat entered in the Court of Chancery that a Patent fhould not pafs, cr in the Queen's Silver-Office that a Fine fhould not pafs, yet if a Patent, or Fine, paffeth after fuch Caveat, 'tis not void ; 'tis true, Fieri non debet fed faElum valet. The Law is the fame in the Spiritual Court ; for if a Ca- veat is put in againft an Adminiftration, yet if 'tis granted afterwards, 'tis no; void. So where a Difpute was between two Perfons who fhould be rightful Patron to a Church, one entred a Caveat with the (c) Bifhop in the Life-time of the Incumbent, but he was very 111, and died the next Day ; notwithstanding this Caveat the Bifhop admitted and inftituted the Prefenteeof the other, but he was not inducted, it was adjudged that the firft Inttitution was not void, for if it fhould, it would be in the Power of the Bifhop to defeat any Patron of his Pre- fentation ; as for instance: When a Church is void he may caufe any one to enter a Caveat, and then grant Institution to the Perfon prefented, and avoid it again after fix Months, by vertueof the Caveat, and fo prefentby Laps. Tis reafonable therefore, that the (d) Church fhould be full upon an Admiffion and Inftitution after a Caveat ; and when Suits have been brought in the Spiritual Court to avoid fuch Inftilutions the Courts of Common Law have granted pro- hibitions ; for 5ris no more than a Breach of a Canon, and doth not make the Inftitution void. Cautione admittenda \ See Excommunication. («) P^p- 13 3- (0 Si I. 372. (') * Ro1- ReP- ™2' 227- 2 RoI« Hep. 7. 3 Cro. 46:. 2 .ol.Abr.iao. {<*) 2 RoI.Abr. 361. Ctjfiotil *3S Ceffion. T^HIS is when the Incumbent of any Living is promo- A ted to a Bijboprick, the Church in iuch Caie is void by Ceffion. It hath been Vex at a. Qnejtio, whether the Queen or Patron ought to prefent upon iuch Pro . c tion. Tis true, this Point is not determined either in the Year- Books, or any other ancienc Books of the Laws an(l tn^ Reafon may be, becaufe the Kings of England', inthofeDays, feldom made ufe of this Prerogative, and if. ever they claimed it, 'twas very tenderly.^ for the Pope challenged the Difpofal of all Preferments id the Church. This occafioned the making the (e) Statute againrt Provi- fors, to prevent his Collations to Benefices in England, and to give them to the King as Patron Paramount. But notwithftanding this Law, even that King and his SuccefTors did fuffer the Pope ftill to collate upon Promotions 3 and feldom or never difputed it with him, but a Method was found out to lave ttoe Prerogative ; for when a Parfon was made a Bifhc p, it was uiual to grant the Temporalties to him before Confecration, and this prevented the King's Righf of (/) Patronage, which Right he had whilft the Temporal- ties were in his Hand ; but that was not by vertue of his Prerogative, for during that time he had a temporary Righr to preient as lawful Patron ; and it was clear that the Bene- fice which the Bifhop had, as Parfon, was not void till he was confecrated. In ii //. 4.7. 37. which was about fixty Years after the aforefaid Statute, it was agreed that the Patron fhould pre- fent upon a Promotion ; Hill] one of the Judges of the Common Pleas diftinguifhed, that where the King was Patron, he^ ftiould prefent, but not to a Benefice , in the Patronage of another. And there is no other folemn Judgment after the making that Statute of any Prefentation by the Patron, for the Pope was ft til allowed to collate upon Promotions till the 25 H. 8. ^ It muft be admitted, that this is a Prerogative not men- tioned in the Statute de Proerogativa Regis, nor by Stamford himfelf, who wrote a Book of the Prerogatives; but that is wo Argument againft it, for he neither mentions any Prero- (») Anao ^5 Ed. 3- (■/) 41 Ed. 3. J. K 4 f8$* *3) Ecclefiaftical Caufes, and this was the original of Diocefan Chancellors. Under this Title I {hall treat, (t.) Of the Antiquity of ^Chancellor, and how he muft be qualified for the Office. (2.) To whom it may be granted. (3.) What Eftate a Chancellor hath in this Office. (1.) €S?c nmiquitvof tfce Offices.] Some have been of Opini- on, that Chancellors were very late Officers, and introduced by the Sloth- and- Negligence of Bifhops, unwilling to hear and determine thofe Caufes in which they had a Jurifdiclion. But the Learned (q) Sir Tho. Rydley tells us this is a Mi - flake ; for in the firft Ages of the Church, the Bifhops had thofe Officers which were called Ecclefiecdici, that is Church Lawyers, who were bred up in the Knowledge of the Civil and Canon Laws, and their Bufinefs was to affift the Bifhop in his Jurifdiclion throughout the whole Diocefs ; and be- caufe the Chancellor doth the fame thing now ; therefore he concludes that the Office was the fame with thofe ancient Church-La weyers. But probably they were not Judges of Ecclefia(lical Courts, as Chancellors are at this Day, but only advifed and aflilted the Bifhops themfelves in giving Judgment, for we read of no Chancellors here in all the ^ Saxon Reigns, nor after the Con- queft, before the Time of H. 2. for that King requiring the Attendance of Bifhops, in his State Councils, and other publick Affairs, it was thought neceffary to fubftitute Chan- cellors in their Room, to difpatch thofe Caufes which were proper for his Jurifdiclion. Afterwards a Chancellor became fuch a necefTary Officer to the Bi (hop, that he was not to be without him; for if he would have none, the Archbifhop of the Province might en- join him to depute one, and if he refus'd, the Archbifhop might appoint one himfelf; becaufe 'tis prefumed, that a Bifhop alone cannot decide fo many Spiritual Caufes which arife wuhin his Diocefs. (.) Sid/88. 20:. (?) View of Civil La\v, Fo. 156. The C&ancelloj, 141 The Perfon thus deputed by the Bifhop, hath his Authority from the Law, and his Juriiciiclion is not like that of a Co- miiTary, limited to a certain Place, and in certain Cautes, but extends throughout the whole Diocefs, and to all Eccle- fiaftical Matters ; not only for Reformation of Manners, in Punitfiment of Criminals, but in in all Caufes concerning Marriages, laft Wills, Adminiftrations, &c. $f£ ^Httalificatiori0» ] As to his Qualifications, neither a Layman, or married Perfon, could exercife this Office by the Canon Law, or any other Ecclefiaftical Jurifdiclion whatever ; but after H.'$. cap. 17. had reaflumcd the Su- premacy, a Law was made, by which Dottors of the Civil Law, whether married or not, might be made Chancellors, and fit as Judges inBifhops Courts. Tis true, this Law was repealed by a (/) Statute made 1 &2. Ph. & M. ; but it was revived by 1 Eliz. 1. By the Canons of King James no Man is to be admitted to be a (t) Chancellor, except he is learned in the Civil Law, and at leaft a Matter of Arts, or Batchelor at Law, and 26 Years Old. It hath been a queftion fince the Statute 37 Hen. 8. and before that Canon, whether a Batchelor at Law was capable of being a Chancellor orCommiffary, and it was adjudged that he was capable ? For the (u) Statute is not reiiri&ive to Dotlors of the Civil Law alone ; lo that no other perfon might be a Chancellor. The like point was adjudged fince the (.*•) Canon, between Walker and Sir John Lamb\ in which Cafe it was held that the Statute 37 Hen. 8. was an affirmate Law, and did nos reftrain the Office to a Do&or of Law. If therefore the knowledge of the Civil Law qualifies a Man to be a Chancellor, then he who is not competenly Learned in that Law is not capable of that Office ; and therefore Dr. Sutton, who was Chancellor to the Bifhop o{ Glome fter, and who was only Re6tor of a Parifh Church, and not inftrucV ed in the Civil or Canon Law, was deprived by the Eccle- fiaftical Com mi (lion ers for that very Reafon, tho' it was ob- jected that he had a (*J Patent from the Bifhop for his Of- fice, which was confirmed by the Dean and Chapter ; and fo had a Freehold for his Life, which could not be determined by Ecclefiaftical CommiiTioners : (0 Canon 127. («) Cro. El(z, 314. {*) Cro, Car. 514. fc) Godb, fc$o. jfc) 2 Roll, Abr. 28 f. But M2 <£6aticeI!ot But this was denied by Juftice Doderidge ; for tho' the Of- fice was granted for Life, yet the Officer having no Skill to Execute it, he had no Freehold in it ; for his infufficiency cre- ated an Original Incapacity, fo as to make the Grant void *b initio. It muftbe agreed, that the right which he had to receive the Profits was Temporal, but theExercife of the Office was Spiritual ; and therefore the Ecclcfialtical Court is proper to determine whether thePerfon is fufficiently qualified in point of Learning, in the Canon and Civil Laws, to Execute fuch an Office or not ; and fhall not be Prohibited. But if that Court wiJi deprive a Perfon for matters cogni- sable at Law, then the Judges will Prohibit them. The cafe of Dr. Stttton beforementioned, is the only cafe where a Chancellor hath been deprived by the Spiritual Court for infufficiency. It was lately attempted upon a Libel a- gaintt Dr. Jones, Chancellor of the Diocefs of Landaff, for the like Reafon, viz,, for being unlearned in the Canon and Civil Law ; but the Dr. had recourfe to the Temporal Courts for a {a) Prohibition, which was Granted, and he Declared upon it ; but the Cafe was not Determined. flHrjetfcr ft map ht <£?anteD to Ctxio.] The next thing to be confidered is, to whom it may be Granted, viz,. Whether to One or Two * and as to that it hath been doubted whether a Judicial Office, as this, might be Granted to Two, becaufc they may differ in Judgment, which might be a delay to Ju- flice ; for one may Excommunicate, and the other Abfolve. Bqt fuch a Grant may be fupported by ufage, that is, if the Office was granted to Two before the Statute (b) i Eliz,. it suay be granted fo afterwards ; for that provides, that alJ lawful Grants made by Ecckftaflical Perfons> of any Office, in old time wont to be granted, fhall be good. Anno 8 Jac. This vervOfficeof Chancellor was granted to (o) Dr. Trevor and Griffin. And in the Cafe of Dr. Jones, it was granted to him and another ; and there being feveral grants of the Office to Two fince the Statute, it was an in- ducement to the Court to believe that it was granted fo be- fore. CDOlfjat € date fje fcatrj in tbe fl)fflce«] I fhall in the next place confider what Eflatethe Perfon hath in this Office ; and this by the ancient Ecclefialtical Laws was not an Eftatefor Life: For a grant of JurifdicYion did ceafe by the Death of the grantor, and there is a very good reafon for it, viz,, m invitm babeat Officialem jortaffis fill odiofum. (a) Med. 27. (b) Cap. 4, (c) j R©^ Rep, 306, Cro.Car. 55- , . This €&anttie.i 143 This was the opinion of 00 Juftice Doderidge in the Pre bend of Hatchecleys Cafe, viz. That fuch a grant was not good but during the Life of the Bifhop, and fhould not bind his Succeflbrs ; and my Lord Coke was of the fame Opinion, vU. That it was very hard it fhould not be in the power of theSucceflor to remove him, but that he fhould be bound to anfwer for the Acls of another who was never deputed by him. But now the Patents for fuch places are generally made for the Life of the Grantee, and by virtue of fuch grant he is made the Judge of the Con/iff ory Court ; and the legal Acts of that Court are reputed and taken as the Acts of the Biftiop himfelf,by whofe Authority he fits ; for there lies no Appeal to him as the immediate Superior, but to the Archbifhop of that Province. The Canonifts hold, that by a general Grant of this Office, nothing pafles but a power or authority to hear Caufes, and that the Bifhop by appointing a Chancellor doth not diveft himfelf of any other Power, which he hath as ordinary, but he may delegate all or any part of it by fpecial Com- miflion to others ; for tho1 by the Statute 37 Hen. 8. Doctors of Law are made capable of exercifing all manner of Eccle- flaftical Jurifdiction, yet the Bifhops from whom 'tis derived may limit and circumfcribe it to particular Acts and Cafes, but this is feldom done. Laftly, a Chancellor thus deputed may make a Leafe of a (0 Reclory, which fhall be good without the confirmation of the Dean and Chapter, for he is not infra minores ordines qui famulantur Eeclefa. Chantrie. '"THis was a little Cbappel, orja particular Altar in a'Cathe- ■■■ dral Church, Built and Endowed for the Maintenance of a Prieft to Sing Maffes, which were held fatisfactory to redeem the Soul of the Founder out of Purgatory ; and from thofe Prayers in this place it was called a Cbanterie, and the Prieft who officiated there was called a Chantor or Souls Prieft. There were many of thole in England before the Diflblu- tion ,• for any Man might Build a CbanUrie without the leave of the Bifhop, and this was bv the Authority of the Pore, for in thofe places, and by thofe Priefts, the Doctrine of Puiga- tory was maintained ; but in latter times none could build thefe Chantries without the King's Licence. (■<0Noyi$2. (0 Sid. is 8, In i44 Cfjanttfe. In the Reign of Hen. 8. when the belief of Purgatory be- gan to decline, and the Trade of Redeeming Souls from thence decreafed, it was thought an unneceffary thing to continue the Penfions and Endowments of thofe Priefts; therefore Anno 37 Hen. 8. cap. 4. thefe Chanteries were given to the King, who had power at anytime to ilTue Commifli- cns to feize thoie Endowments, and take them into his Pof- feifion; but this being in the laft year of his Reign, there were feveral of thofe Endowments which were not feized by virtue of any fuch Commiifions: Therefore, Anno 1 Edrv.6. cap. 14. thoie Chantrk s which were in being five years before the Seltion of that Parliament,and not in the actual PoiTefTion t&Hen. 8. were adjudged to be, and were vefted in that King. But becaufe many of thofe Chantries were actually furren- dred to Hen. 8. therefore, there was a Claufe in this la(t Sta- tute to confirm fuch iurrenders, with a faving the right of others. About Twenty Seven Years after this Statute of Ednv. 6. a Man had a parcel of the polTeflions of a Chantrie, which he held by the payment of (/) Rent and Fealty; thefe Lands came to the King, who granted them to another : It was held that the Patentee fhoull enjoy it by virtue of the Grant, and fhould pay the Rent to him who was Lord before, not as a Rent Service, but as a Rent Charge ; for which he might Di- ft rein of Common Right. I fhall mention fuch Cafes which I find to have been ad- judged upon thisStatute ; but firft I muft repeat the words of the Statute its felf. All Chantries , and all Lands helonging to them , and af&cn and appointed to the finding a Pried, to fcabe continuance fo? Cfcer. > and alfo all Annual Rents imployed for the maintenance of any [lipen- diary Prieft for ever, are vefted in the King. Now the word given beforementioned, doth not import an abfolute (V) Gift ; for if Lands were given upon condition to find a Prieft, &c. 'tis wiihtn this Statute : And fo it is, tho* the gift is for Life, notwithstanding the words of the Statute are, f w"*,.) given to the finding a Prieft for ever ; becaufe the chief intent of the Law-makers was to fupprefs all fuch fu- perftitious ufes. If Land of the value of 20/. per Annum was given to find a Prieft, without mentioning how much of it fhall be appli- ed for his Maintenance, in fuch Cafe the whole is vefted in the King by thisStatute : (/)iAnd. 4j. fe)4Rep. 194, other C&aitttfc My So *tis if by the Gift or the Will of the Dorlor, the Prieft is limited to receive only 10/. for his Maintenance, becaufethe other 10 /. (hall be intended for the finding nece{Taries to car- ry on the Superftition, as Veftments, Books, &c. But if the other 10 /. had been given to the Poor, that had been a good ufe ; and in fuch Cafe the King fhould have but the 10/. allowed to the Prieft, as an annual Rent ifluing out of the Land ; for wherever there is a goi i ufe coupled with a bad one, the (h) King fhall have no more but what is ap- pointed for the Superftitious ufe. As for inftance, where two Houfes Anno 6 Hen. 7. were deviled for the (t) maintenance of anO/»ir at 3 s. 4 d. An* nually, and the reft of the profits to repair the Church ; in fuch Cafe the Queen (hall not have the Houfes, but only fo much as was appointed for maintaining the Obit, which was a Funeral Solemnity every Year, in comemoration of the Death of the Founder. But in fuch cafe fome of the Profits m'uft be imply ed for that good purpofe for which they were defigned, and not all to the Superftitious ufe ; for if Lands of the yearly value of o /. 4 /. were given to find a Prieft to pray for the Soul of the donor and to Sing an Obity out of which he appointed that the Prieft fhould yearly receive 6/. 13 s. %d. and for the Obit 1 3 s. 4 L and the refidue to repair the Church : Now, tho' the laft was a good ufe, yet it was held that thofe Lands were vefted in the King, becaufe the Superftitious Ufes a- mountedt.07/. 7 j. and there was a quit Rent of 2/. 2/. iiTuingoutoftheLand, and due to the King at the time of the Devife, both which amounted to more then the yearly value, of the Land ; fo there could be nothing remaining for the (£) good ufe : But where both thole ufes meet in one Gift, and it doth, not appear how much fhall be applied to each ufe there, the Queen fhall have the whole, becaufe of the in certainty ,which would have been other wife if the certain quantity had been limited to each ufe ; for then the (/) Q.iecn fhould have only fo much as was implied to fupport toe Superftitious ufe. ^ It muft be Hkewife a Chantrie in Va6t, and not in Reputa- tion. For if the Lands are not given or implyed to Super- ftitious purpofes, but only reputed fo, thole are not given to the Queen : W Moor 692. (i)Cro.EHz.449. CO JonesfaSz. Cro.Car.4j5. 4) Moor 189. 2$?. As i4« C&apieftti As for Inftance, a Man Devifes^oo/. to the (m) Dearl and Chapter ofTork, to find a Chantrk in their Church for ever, and an Obit every year for the Death of the Founder, and appointed how much the Prieft fhould have for his Main*; tens nee. The Dean and Chapter received the Money of the Execu- tors of the Doner, and obliged themfelves ac omnia bona fita, to perform his Will. Afterwards they purcbafed Lands with this Money, and appointed a Stipend for the Prieft, and another Sum for the Obit : Now tho' thefe Lands were purchafed for this very purpofe, yet this was held not to be a Cbantrie by the Will of the Doner, becaufe the Money and not the Land was given ; and the Dean and Chapter did not make it a Chantrie, be- caufe they did not oblige their Lands, but their Goods, for the Payment of this yearly Penfion to the Prieft. Chapkin: ? See { j^g£. I N former Times when the Kings of France were engaged in Wars, rhey always carried St. Martins Cap into the Field, which was kept in a Tent as a precious Relique , and from thence the Place was called Capelia, and the Priefts who had the Cuftody of that Tent, were called Capel\ani% and from them thofe who minifter in facred Affairs, were afterwards called Ckapleins. Thefe Perfons amount us are only fuch as officiate in the free Chappels of the Queen, or in private Oratories of Noble- men and others, who by the Statute 21 H. 8. cap. 13. have power to retain the Number following. Comptroller of the Houfbold, 2 Dean of the Chappel, 2 Duhy 6 Dutches, being a Widow "> and tho' (he marries, j 2 Earl, 5 Knight of Garter, 3 A4arqHtsy 5 His 'Almoner, 2 Arcchbifhop, 8 Baron, 3 %axons Widow. 2 Bifoopy 6 Chancellor, 3 Chief Jttfice, 1 Clerk of the Qofet, 2 (m) 2 Cro.jij C&appeK 147 WsWidow, tho'fhe Mar- ■% ry, that doth not take S 2 off the Qualification, J Mafterot Rolls, 2 Secretary of State, 2 Treafurer of the Honfhold, 2 Vifconnt, 4 Warden of Cinque- Ports, 1 NOTE, 77m/ fJfo* Widows of Dukes, Malrquefles, E and Barons, do Marry under that Degree, they may return Two Chaplains, which /hall be qualified within this Law, Thefe Perfons thus reteined, have the Privilege to get a Di- fpenfation to hold two Livings, and in fuch Cafe, if they are legally indu&ed into a fecond Living, tho' the Lord is after- wards attainted, or removed from his Office, they fhall hold both during their Lives ; but if attainted or difplaced before the Chaplein is preferred to a fecond Living, then the Qualifi- cation is gone. Chanel. TPHE Word is derived fron Capella, mentioned in the la ft A Title, which was a little Tent, wherein Reliques were kept ; but afterwards it was taken for every private Chappel or Oritory, With us heie in England there are feveral forts. (1.) Parochial Chappels, and thefe differ only in Name?from Parilh Churches, but they are fmall, and the Inhabitants within the Dift'riciare few, in refpeclto larger Churches and Parifhcs •, and formerly thefe were united to Churches. (2.) Chappels which adjoin to, and are part of the Church, and thofe are fuch which were built by honourable Perfons for Buring Places for themfelves and Families. (3.) Chappels of Eafe, and thofe are ufually built in very large Pariihes, where all the People cannot come to the Mo- ther Church ; ancl in thefe Chappels the Cure is ufually ferved either at the Charge of the Re&or, or of fuch, who by Cultom or Compofition, are to provide a Minifter to officiate there , but generally the Sacraments are to be admiriiftred in the Parith Church, and not in thefe Chappels. 'Tis true, in fome particular Diitncls, where there are fuch Chappels, they may baptize and adminiiter the Sacra- ments, and may have Chappel-Wardens -, but thefe Chappels are not exempt from the Vifn.ation of the Ordinary, nor thofe who refort thither from contributing to the Repairs of the Mother Church, especially if they bury there ; for thoJ fome part of the Parifh have always repaired the ChappeL yet 'tis L 2 ftiU 148 QEfiappel, Rill the fame PariPn, and they are part thereof, and there- fore of common (0) Ri£ht ought to contribute to the Repairs of the Church, and the father, becaufe fucb Chappels were built for their Eafe, for they are obliged to go to the (p) Mo- thcr Church, but not to the Chappel; yet they may be dis- charged of this Duty by Prefcription, tho' 'tis againft com- mon Right; but then they muft fhew fome fpecial Canfe, upon the very (q) Endowment it ielf ; for 'tis not fufficient to ailed ge that time out of mind, they have repaired their own Chappel, and by reafon thereof have been difcharged to- wards the Repair of the Church, becaufe 'tis no direel: Pre- fcription ; but if they prefcribe generally to be difcharged without fhewing for what (r) Caiiie ; or if they alledge that Time out of Mind, they have repaired part of the Wall of the Church-yard, and their own likewife; orfhewany modus to pay a certain Sum yearly towards the Repairs of the Mother Church, fuch a Profcriptionisgood. (4.) Free Chappels; and thefe areiuch which were founded by Kings of England : this appears by the Writs of Prohibi- tion, when the Privileges of fuch Chappels have been inva- ded by Abbots and others, for the Recital is (f) Cum Eccle- fia, &c> per progenitores, noftros, quondum Reges Anglid, fun- data, &c. Cape! la Libera a prim bents. As to the firlt of thefe, I find that when our Saxon An- ceftors were converted to Chriiiianity, they ufed fuch Britifo Churches which were then Handing, and thofe were very fe\*r But Ethelbert, King of Kent, built Two, and by his !:>: ample other great Men were encouraged to do the like. Be4e, our firft Englifh («) Hiftorian, gives us an Account; of two more which were built by Noblemen ; and 'tis pro- bable, he had not mentioned it if it had been a common thing to build Churches in thofe Days, or if many had been then built; from which we may conclude, that the Work went on very (lowly ; for tho' the Piety of fome Bifhops moved them to fo good an Undertaking, and particularlv Birinus, an Italian, who was fent hither, by Pops Honoria , to preach theGofpel, and who built a Church at Dorct. an Oxfordshire 5 yet there were not Churches enough in V'] ' ' \ '■ .;■. t mi W.JM n 1 f . 1 ;■■ ■ ■ ,. 1 "■- <•*> I-ib,$ cap,'*. " i3 m ISO Cfcutcfc, Nation to contain the Converts, for they ufually met in the Field, where they worshiped publickly under an erected Crols. But in the Churches, thus built, the Bifhop and his Clergy lived in Common, whom he fent out to particular places to preach the Gofpel, where he thought they might bemoft fuccx, , ..' ; and tbefe are the Churches wenow call Cathedrals, Thele were dedicated to the Service of God in thofe early Days, and were preferved for that purpofe, when the Ab- bieswere demcliined, at the beginning of the Reformation, and now ftand as the {lately Monuments of the Piety of our Predeceflbrs, affording a competent Maintenance to many ingenuous Perfons, who are well defcended, and who have devoted themfelves to the Mini ftry of the Gofpel. (2.) Collegiate ; The State of an Ambulatory Clergy, being found to be inconvenient, and feveral Churches being built where Chriftianity moft prevailed ; but ftill, at lbme Di- ftance from the Cathedrals, the Bifhop fettled a competent Number of Presbyters there, which not long after were called Collegiate Churches, and thefe were liberally endowed by the great and pious Men of that Age. (3.) Parochial; In fucceding Ages when the Nation be- came populous, and many Villages were built, fome of them more remote from the Cathedrals, the Bifhop gave Leave that Churches fhouid be built there, and transferred the Right of Baptifm and Burial to them, which with the Right of Tythes made them Parochial ; and not long after, Lords of Manners built more Churches on their own Lands, for the greater conveniency of themfelves and their Tenants, and made Parities of their own Demefns, but this was not til! the latter end of the Saxon Reigns ; for Bede, who was a Monk himfelf, complained to Egbert, Archbifhop of Tori, above Two hundred Years after theConverilon of the Saxons, that there was a great want of Parochial Settlements in his Days, which implies that there were fome iuch Settle- ments. But when Churches were built, it was neceilary to fix the Bounds within particular Diltridts, that the People who re- fided there, might know where to attend the Worfhip of God ; and Laws were loon made by. the confent of the Bi- fhops, that the Lords of Mannors might retain a third, part of the Tythes, arifing yearly within their Mannors, from the common Treafury of the Diocefs, for the ufe of their Churches; and thus a parochial Right of Tythes be- came vetted in the Rectors of thofe Churches \ and when this Cftircfc is i this began me, I fhall acquaint the Reader under the Title Parijb. And here it may not be improper to mention the ancient Ceremonies, in confecrating the Ground on which the Church was intended to be built, and of the Church it felf after it was built. When the Materials were provided for building, the Bi- fhop came in his Robes to the Place, &c. and having pray- ed, he then perfumed the Ground with Incenfe, in a circular Motion, then the People fung a Colledt in praife of that Saint to whom the Church was to be dedicated ; then the cor- ner Stone was brought to the Bifhop, which he croiled and laid for the Foundation. After thefe Ceremonies one would think fome ftately Fa- brick was to be erecled ; but the Churches were then fo very mean, that when the Candles were fet before the Reliques, they were often blown out by the Wind, thro* the Chinks and Thinnefs of the Walls ; and it was upon this Occafion that King Alfred invented Lant horns. But as mean as they were, thofe Churches were always confecrated, and a great Feaft was made on that Day, or on the Saint's Day to which it was dedicated, but the Form of the Confecration was left to the Difcretion of the Bifhop. There was one drawn up here in the Year 1661, but ic was never authorized ; and probably it was made, becaule fo great an Offence was taken at Bifhop Lauds, confecrating St. Katherine Creed Church in London, which was thus: He came on a Sunday, being the 16th Day of January, An- no 1630, to the Weft Door of that Church ; and fome Per- fons, who were prepared for that purpofe, fpoke aloud, thefe Words (viz,.) Open, open ye everlajiing Doors, that the King of Glory may enter in. Immediately the Doors were opened, and the Bifhop and fome other Doctors entered ; then he kneeled, and with Eyes lifted up, and his Arms fpread, he pronounced the Place to be Holy, in the Name of the Father, &c. Then he threw fome of the Duft of the Church into the Air, feveral times, as he approached the Chancel ; and when he came to the Railcs of the Communion Table, he bowed to- wards the it feveral times. Then they all went round the Church repeating the hun- dred Pfalm, and afterwards a Form of Prayer, which con- cluded thus: (viz,.) WeConfecrate this Church, and fet it apart to Thee, O Lord Chrift, as Holy Ground, not to be prophaned any mon to common Ufe, I 4 Re *$i Clmtc&* Returning to the Communion Table, he pronounced Curfes againft thofe who fhould prophane that Place, and at every Curfe he bowed towards the £*/?, and faid, Let all the People fay, Amen. Afterwards he pronounced Blefpngs on all thofe who fhould be Benefactors , and repeated, Let all the People fay, Amen. Then there was a Sermon, and after that the Sacrament was adminiltrcd ; and when he came near the Altar, he bowed feven times ; and coming to the Bread, he gently lifted up the Napkin, which he laid down again, and withdrew, and bowed feveral times ; then he uncovered the Bread, and bowed as before, the like he did with the Cover of the Cup, and fo the Ceremony endegV In the next Place I ihail treat of, (i.) Rates made to repair Churches. (2.) Who are bound to repair, and who not. (3.) Of Ornaments, who is to contribute to them, and who not. fBatcs. ] As for Rates, made either for repairing the Church, or fencing the Church- vard, they are to be made by the Churchwardens, who are to give a general Summons at the Church, that the People may meet at a certain f» Time and Place for that purpofe ; and the Majority of thofe who meet upon fuch a Summons fhall conclude the whole (?) Parifh ; but if they all refufe, or neglect to meet, then the Churchwardens alone may make the Rate. If 'tis legally made, or impoied by the Ordinary, without the confent of the Parifhioners, yet if they agree to it after- wards, it fhall bind. Now thefe Rates muft be made upon the whole Parifh, and not upon a particular Perfon, and if made to raife Money to repair the Church, tho' that Word may compre- hend the Chancel ; yet if the Money is laid out to repair the (z,) Chancel, the Parifh are not to allow it in the Cburchwar- dens Accounts; but if 'tis exprefly made for the Repair of loth, 'tis Illegal, and the Tempoal Courts will prohibite any Proceedings to recover it. ■ If a Rate is made on Lands to repair the Church, and for making a new Clock and Chimes, and for dividing the Church- Houle, and for relieving the Poor, 'tis too late to move for a Prohibition after Sentence in the Spiritual Court, and to fug- (*) Haley Cu (j) 1 Vent. 367. (st) 1 Mod. 236. CIjutcD* i j? geft that feveral of thcfe Matters are not cognizable in that Court. When thefe Rates are made 'tis the proper Bufinefs of the Churchwardens to colled the Money, but by Cuftom the Con- (table may be bound to do it, and therefore it' a Libel is brought againft him (<*) for refufing to colled it a Prohibition fhall not go, becaufe the Spiritual Courts may try this Cuftom. iBepafr*.] Concerning Repairs I fhall begin with the (b) Canon, which requires every Per/on who hath Authority to hold Ecclefiaftical Vifttations, to view the Churches within their Jurijdi- Bion once in 3 Tears, either in Per [on, or caufe it to be done, mi they are to certify the Defetls to the Ordinary, and the Names of thofe who ought to repair. Thefe Repairs muft be done by the Churchwardens Or) at the Charge of the Parifhioners, and the Ecclefiaftical Judge may excommunicate any or all of them for any Neglect in not repairing. It hath been a Queftion whether this is a real Charge upon all the Lands in the Pariflh, or only upon the Perfons in re- fpedt of their Lands, (d) and the better Opinion is, That 'tis a Perfonal Charge by reafon of the Lands, for where the Own- er or Occupier refufes or negle&s to contribute to repair, &c. the Lands cannot be fequeftred, but the Perfons may be ex- communicated, (e) for the Ordinary hath a Jurifdi&ion over them, but not over their Lands, he is not to meddle with the PofldTions of Laymen, but to proceed againft: them by Eccle- fiaftical Cenfures. However, 'tis fuch a Charge on the Lands (f) that no Cu- ftom can be good to difcharge it, as if a Cuftom is alledg'd that the Defendant ought not to be rated according to the Va- lue of his Lands, but to the Value of his Sheep- Walks ; this is a void Cuftom. If a Man live in one Parifh, and hath Lands in another, which he keeps in his own Hands, he (hall be charged to the Repairs of that Church where his Lands are, and not where he livetb, for tho* the Charge is upon the Perlbn, yet 'tis in re- fpect of his Lands, (g) and therefore as to this Purpofe he is a Parifhioner where the Lands are,, and not where he lives. If he let his Eftate to a Tenant the Tax {"hall be fet on the Farmer, becaufe it may not be known who is Landlord, but he is not to pay the whole, for he may plead in the Spiritual Court that he is only the Farmer, &c. and he is to pay no (a) Hardres Jio. {b) Canon 86. (c) 1 Mod. 2J6. (d) 2 Mod 2S5. a Vent. 35. • f» 1 Mod. 194. (f) Hetley m< a Ro), -Rep. **}. (g) Cro. Eliz. 659. 843. 2 Roll, ^br, a8o. s Rep. 66. *rtors 1*4 C&tlttfc more than what the Land is worth above the Rent, (&) and the Landlord muft pay according to the Rent referv'd. If Lands lye in Two Parifhes, (i) and the Owner is fu'd to contribute to the Repairs of the Church in one of the Pa- rifhes for that part of his Lands which lyes in the other Pa- rish, fuggefting a Cuftom for it, which was deny'd by the Defendant, this Cuftom (hall be try'd at Law. And when the Libel is for not repairing, &c. (JL) 'tis not fuffirient for the Defendant to fuggeft, that other People have lands in the fame Pariih which are not charged, for if 'tis true Jtis a good Allegation againft the Libel in that Court, be- caufe the Rate ought to be made upon the whole Parin\ and 'tis a juft Caufe to appeal from a Sentence there, but not for a Prohibition. ^>?nament*.] As to Ornaments the Charge is upon the Peribnal Eliates of the Parifhioners, (/) and not upon their Lands, and therefore if a Rate is made to charge the Lands a Prohibition will be granted. Tis for this Reafon that the Perfon muft be charged where h lives, and not where his Lands are, (m) for if the Libel is for Ornaments, 'tis a good Plea to fay, that he was not a Pa- lifhioner there at the time of the Rate made. The Rate muft be made upon all the Parifhioners of Abili- ty, and none are to be excus'd, and 'tis the Majority in this Cafe, as well as in the other, for Repairs of the Church, which conclude ail the reft, but then they muft be aflernbled at a Veftry after publick Notice; (n) therefore where a greater Part agreed to have a fifth Bell, and the lefs Number dis- agreed, yet the whole Parifh was concluded. But tho* generally Lands ought not to be rated for Orna- ments, yet by a fpecial Cuftom both Lands and Houfes may be liable to it, and fo it was held Hill p. Will, in B. R. be- tween H) 2 Roll. Rep. 3**. (») a Ro* Abr, 251. In C&utcfj. 155 In the next place I (hall mention a few Things, (1.) Concerning Ways leading to Churches. (2.) Who are oblig'd by the Laws to come to Church. (3.) What the Law is concerning quarrelling there. (4.) How it protects the Perfons of thofe who come thither. (5.) And laftly, I (hall treat of the Union of Churches. The Ways which lead to Churches are only private ^ becaufe they belong to the Inhabitants of particular Villa- ges, and therefore it the Churchwardens libel for a Way for all the Parishioners, if the Defendant fuggefts that 'tis a com- mon High-way, a. Prohibition will be granted. Any Parifhioner may prefcribe to have a Way to the Church, fo) but in the Prefcription he muft fet forth what Way, viz,, whether a Horfe or Foot Way, and from whence, and thro3 what place it leads to the Church, and this will be a good Juftification in an Action of Trefpafs. (2.) The Laws which are made to oblige People to come to Church are. By the Statute, 1 Eliz,. Cap. 2. every Perfon is to come to his Parifh Church, (or upon Let thereof) to fome other Church every Sunday and Holiday, upon Pain of the Cenfures of the Church, and likewife to forfeit 12 d. to be levy'd by the Churchwardens, for the Ufe of the Poor, by way of Diftrefs. And any Juftice of the Peace of the Divifion where the Of- fender liveth may fend for him, (p) the Neglect being prov'd by one Witnefs upon Oath, and if he cannot give a iatisfa- ctory Excufe,the Juftice may direct; a Warrant to the Church- wardens to levy that Penalty by Diftrefs, and. if that cannot be had then to commit him. By another Act made Anno 23 Eliz,. Cap. every Perfon not coming to Church, as enjoyn'd by the aforefaid Act, 1 Eli*,. being convicied thereof ihall forfeit 20 /. per Month over and above the aforefaid Forfeiture of 1 /. and if he forbear for 12 Months then the Bifhop of the Diocefe, or judge of Aflize or Juftice of Peace of the County where the Offender lives, cer- tifying it into B. R. he lhall be bound with Two Sureties in 200 /. to be of the good Behaviour, and lhall continue bound till he conform. The Forfeiture is to be divided into 3 parts, to the Queen, to the Poor, and to the Profecutor, and to be recover'd by Action of Debt, Bill., Plaint, or Information • ap.d if the Party is not able to pay it he (hall be committed till paid. {0) 2 Roll, Abr, 287, fv) 3 Jac, Cag. 4j Thcr( 156 €&urc&. There is a Provifo irrthis laft Act, That if the Offender, either before he is indicted, or at his Arraignment or Trial, before Judgment, fhall conform himfelf before the Bifhop of the Diocefe where he (hall be refident, or before the Juflices where he fhall be indicated, arraigned or tried, (having not before made the like SubmifTion at any Trial) (hall, upon his Recognition of fuch Submiffion in open AfFizes or Seflions of the County where fuch Perfon {hall be reGdent, be difcharg'd againft all and every the faid Offences, and of ail Pains and Forfeitures for the fame. There is likewife a Provifo to the fame Effect in the Statute, rjac. viz. That if a Recufant (hall fubmit and be obedient to the Laws of the Church, and continue there during the Time of Divine Service and Sermon, that he (hall be difcharg'd of the Penalties which he might fuffer for Recufancy fo long only as he fhall continue in Conformity. Three Years after the making the Statute, 23 Eiiz* an Acti- on of Debt, qui tarn, &c. was brought againft Thomas Wavhell for the 20/. per Month, (q) there was a Verdict againft him^ and it was mov'd in ArrefVof Judgment that no Place was fet forth where the Offence was committed, but the Excepti- on was not allow'd becaufe the Action was grounded upon a Nonfrazance. In Dr. Foyers Cafe, which was an Information upon this Statute, (r) it was objected that there muft be a Conviction upon a former Profecution before the Information could be brought, becaufe the Statute is, (viz,.) that the Perfon being cmvi&ed ihall forfeit, &c. but it was ruled that the Convicti- on might be upon one and the fame Information, If a Man is outlawed upon this A6t, (Jf) he fhall not be dif- charg'd upon SubmiTfion and Conformity till the Outlawry is revers'd, or he is pardbn'd. But if not outlaw'd then Conformity before Judgment, either before the Ordinary, or in Semons, difcharges the Pe- nalties, Therefore if fa fore a VerditT (t) the Defendant comes into Court and fubmits and acknowledges his Offence, and proves that he had conformed fince the Suit begun, by going toChurcfi and receiving he Sacrament, &c. tho* a Verdict is afterwards given, this fhall discharge the Penalties, becaufe the Confor- mity was before the Trial , befides the Penalty acquires nq Debt or Duty till Judgment. te) t Anc?. ij8. 0) 11 Rep. So. 2 Bulfjb. 32;^ x Ralh Rep. ■?$..! <£8uttfj. 157 I ftiall only add, That the Profecution upon thefe Ads muft be within a Year and a Day after the Offence, but that by a Statute made 1. WilU neither of thofe Laws are to extend to Proteftant DiiTenters from the Church, iubfcribing the De- claration mention'd in the Statute, 30 Car. 2. Cap. 1. (3.) That due Reverence and Attention may be had in the publick Wcrfhip, all Quarrelling is prohibited, either in the Church or Churchyard ; and if any one offend in fuch Cafe the Ordinary, upon Proof of the Fad by Two Witneffcs, may fufpend him ab ingrejpt Eccle/ia. Striking or laying Hands on another there, (u) the Offen- der fhalf be ipfo fatto excommunicated, but if 'tis with a Weapon, or if 'tis only drawn for that purpofe, the Offen- der is to lofe one of his Ears ; now tho' the Words ipjb facie take off the Formality of a Sentence of O) Excommunication, yet before he is excommunicated he muff be convicted at Law, and that muff be tranlmitted to the Ordinary. If a. Man fhould be indited on this Statute it muff not be (j) generally, but the Fact mult be brought within the Letter or the Law, and therefore the Indictment mult fet forth with What Weapon the Perfon did (z,) ftrike, for 'tis not furricient to alledge, that extraxit gladium againft another, & ipfam percufity but it muff be according as the Statute is penn d,r>fc,.) Extraxit gladum ad percutiend. and that malitiofe percuffit ; for to fet forth generally that he did ftrike is not good ; to ftrike without a Weapon is Excommunication ipfo faElo, as hath been obferv d, to ftrike with a Weapon is the Lofs of one Ear, therefore where a Commitment was made by Juftices of Peace for difturbing a Miniiter per apcrmm fatlum the Prifoner was difcharg'd, becaufe they ought to fet forth the particular Fad. (4.) And in order to protect thofe who come to Church we have Laws (a) to fecure their Perfons, enndoy morando &re- de/indo, to or from Divine Service, the Perfon offending may be excommunicated, and pay Cofts in the Spiritual Court, or may be indicted and fined in the Temporal Courts, but the Arreft is good in Law. But thefe Statutes relate only to Arrefts in Civil Actions, and do not extend to Arrefts for a Breach of the Peace, for that is at the Suit of the Queen. (5.) I will conclude this Title with a few Obfervations concerning Union of Churches. (*) 5 & 6 Ed. 6; Cap. 4. (x) 1 Vunc. 146. (7) Cro. Car. 464. (x.) Cro. gli£. 231, 2 Leon. 188, Noy 171. (a) jo Ed. j. Cap, j. 1 Rica. Cap. is. Bcfort i58 €6tttC&; Before the Statute 37. H. 8. Cap. 21. Churches might be united by the Confent of the Bifhep, Patrons and Incum- bents, or at leaft there were fuch Unions before that Act, for otherwife there had been no occafion to confirm them by that Statute. m ■ ,:'■' '■»: ', There are feveral Reafons given for thefe Unions, but the mod material are, becaufe the Reftor might have a better Maintenance, or becaufe the Churches are fo near that one Incumbent may fupply both, or becaufe of the Poverty of one of the Parifhes. I But by the Statute before-mention'd one of the Churches muft not be above the yearly Value of 6 /. in the Queen's Books, and not above a Mile diftant from the other; and if in a Corporation, then no Union can be made without the Con- fent of the Magistrates, declar'd in Writing under their com- mon Seal. And by the Statute 17 Car. 2. Cap. 3. the Bifhop of the Dio- cefs, with the Confent of thefe Magistrates, together with the Patron, may unite them. But the Parifhes are ftill to be dirtincl: as to Rates, Taxes and Parochial Rites, and diftin6t Churchwardens are to be chofen, fo that the Union chiefly refpecls the Place where the Parifhioners are to meet to worlhip, neither fhall it be good until entered in the Biihop's Regifter, or if the Revenue of both exceed 100 /. per Annum. This laft Act doth remedy an Inconveniency which was before, for the Union, by virtue of the Statute 37 H. 8. could not be made but upon an Avoidance, or if the Church was full then not without the Confent of the Incumbent, but by this Statute it may be made whether the Church is full or not for if full then 'tis not to commence till after the Avoid- ance of one of the Churches, to which the other Incumbent is tofucceed. _. ^ And by a fubfequent Statute (h) tis enacted, That if one of the Churches fhould be demolifh'd, then as often as the 0 her is out of repair or wants Ornaments, the Parifhioners of the demolifh'd Church muft contribute towards the fame in fuch Proportion as the Ordinary, who made the Union, fhall direft, and for want of fuch Direction they fnall con- tribute one third part towards the Charge. -' Now where Two Churches were united (c) by virtue of that Statute 37 H. 8. upon the Suggettion that they were not diftant above One Mile, and the Parifliioners are fu d in the ib) 4 & 5 Will. (0 a Roll. Abr. 293, . Spiritua1 Spiritual Court for not coming to Church, they may have a Prohibition upon a Surmife that the Churches were more than a Mile apart. Our Law in this Cafe is agreeable to the ancient Canons of the Church, which allow'd the Bifhop to unite Two fmall Benefices, for the better Support and Maintenance of the Mi- nifter, but then it was to be under fuch a Value, and the Union was not to be ad vitam, but fo long only as the Bifhop fhould think convenient to continue it. And this appears where Pluralities were moft ftri&ly pro- hibited, which was always upon this Condition, ft fattdtas ftippetity which Words imply, That where there was an in- competent Maintenance a Man might have Two Livings, at a reafonable diftance, and with the Allowance of the Bifhop, and accordingly * Balfamon tells us, That in the Greek Church Pluralities are allow a if the Benefices are near and under the fame Bifliop. Churchwardens. *TTH E S E are very ancient Officers, and by the Common- JL Law are a Lay-Corporation, to take care of the Goods of the Church, to which they have a Right fer the Benefit of the Parifhioners. Under this Title I (hall mention, ( i.) By whom Churchwardens are to be chofen. (2.) Of Preferments made by them. (3.) What Aclions they may bring, and for wflati (4.) When and to whom they are to accompt. (5.) Of Actions brought againft them. (1.) They are chofen every Year by the joynt Confent of the Minifter and the Parifhioners, but if they cannot agree then the Minitter {hall chuie one, and the Parifhioners ano- ther, and this is by virtue of (W) the Canon. But before the making this Canon the Parifhioners in fome Places chofe both the Churchwardens, and where that was us'd the Canon doth not abrogate the Cuftom, and in fuch (e) Cafe, if the Archdeacon ihould reftife to (wear them, a Mandamus lyes, for every Parith had formerly a Right to chufe their Churchwardens; but becaufe they varyd in the manner of chufing, therefore a Cuftom might be aikdg d,and >*t Adp V\u°- 1°' c (d) c*mn *% W J°nes 45?. Q-0. Or. $:i, $19. zRollfAbr. 483*' 287. *6o C&ttttt8foattiitt& liTue might be taken at (/) Law to try whether a &k& Veflry or the whole Pariih ought to chufe. In {g) Carpenters Cafe the Mandamus was directed to the Commiflary to Swear two Churchwardens, who were chofen by the ParijUoners, by vertue of a Cu/Iom which the Reclor denied, and infixed upon his Right, by vertue of a Canon to choofe one ; the CommifTary made a fpecial Return, which is fet forth at Length in the Report,- but a Mandamus was granted, for the Ecckfiajiical Court cannot try the Cuftom. (2.) As at the common Law, the Enquiry is to be made by Juries, ibby the Ecclefiaftical Laws the Enquiry is to be made by Churchwardens, and this is the chief Defign of Vifitations. By the (h) Canon they are to make their Preferments of fuch things which are given in Charge at the Vifitation, but not oftner than once in a Year, where it hath been nooftnec uCcd j nor above twice in any Dioceis whatfoever, except it is at the Bishop's Vifitation. But voluntary Prefentments of any notorious Offenders may be made oftener. And this is not only to be done ex Offico, but they are obli- ged, by Oath , tf make their Prefentments upon a Book of Articles,* given to them in the Vifitation, and upon Refufal. to take the Oath, they may be excommunicated : but then if any of thefe Articles concern himfelf, he is not obliged to take fuch Oath, but only to do what belongs to his Office; and if he fhould be excommunicated in fuch cafe, 'tis good Caufe for Prohibition ; and if he is not abfolved upon Re- queft, an Attachment lies. The Prefentments which they make, muft not be with a malicious Defign to vex the People ; for if fo, then an Acti- on on the Cafe lies againftthem ; but if they have a Verdid, they fhall not have double Colts ; tho3 the (i) Statute ex- prefly provides, that they fhall where the Adtion is brought againft them, for any thing done by vertue of their Office, becaufe their Prefentments are meerly Ecclefiaftical ; and the (&) Law- makers never intended to give double Cofts, but where Officers were iued for Temporal Matters, done by them in Execution of their Office. The Books in the Margent warrant this DiclincYion, but 'tis a nice one ; for the Churchwardens are not named in the Statute 7 Jac. which gives the double Colt, but that Statute 00 Hardres 379. (g) Ray m. 439. (h) Canon 1x7. (i) 7 Jac. cap. 5 . 2 1 Jac, cap. 12. {k) Cro. Car, 28;. Jones 530. being C&urc6iDattiMiis. *<$* being made perpetual by 21 J*c. the Churchwardens are decUredtohe within the Purview of the former Statute. Now if Officers (hall recover double Coils, when fued, for what they do only in temporal Matter?, then thh Declaration- is almoin vain, becauie the Office of a Churchwarden, efpe- cially in making Preferments, relates chiefly to fuch Mat- ters which concern a Spiritual Jurisdiction. The Time of making thefe Preferments is ufually at Eafter; and thefe (/) Officers may be profecuted in the Spiritual Court as perjured Perfons, if they willingly neglect or omit to make their Preferment at that time., (KKijat Anions ttyv mag I) a!?:, ant) tol?at not. ] They may maintain an Adtion on the Cafe againft him who (hall deface a (*) Monument in the Church, or an Action of Account a- gainft their PredecelTors for a Bell, or any Goods belonging to the Church, but then they muft decclare de bonis Parochiano- rum, or an Action of Trefpafs for any thing taken out of the Church which belonged to the PariuSioners; and this the new Churchwardens may do , tho' the (w) Trefpafs was done in the Time of their Predeceffors ; and a Releafe by one is no Bar to the Action of the other, becaufe they have no proper (n) Intereft in the things themfelves for which th.y fue, but are only a lpecial Corporation for the Benefit of the Church, and therefore they are always to conclude ■ Declaration Ad dampnum parochianorum^ and not to their proper Damage. But the Suits which they bring in the (0) Spiritual Court mud not relate to any thing concerning the Inheritance ; therefore if they Libel for a VVay to the Church, or to repair the Fences of the Church-yard, by reafon of Lands adjoin- ing ; or that the Defendant, and all thofe whofe Eftate he hath in fuch a Houfe, have ufed to find Bread and Bear for the Pariftiioners in their Perambulation ; thefc are all Tem- poral Matters, and the Allowance of iich a Refrediment is in Nature of a Corrody, for which an Ailize will lie. They cannot prefcribe to have Lands, neither can they have any AcYion of Trefpafs at Common Law to recover Goods, of which they never were poffeffed ; but by a Bill iri Equity, they may have a Decree for fuch Goods, and they may have an Appeal- of Robbery, if Stolen. . if they are cited in the (p) Ecclefiajiical Court, after they have given up their Accompts, and fhould be excommunica- (/) Caa. 117. *Godb. 279. &i) Cro. EHz. 145. 179- (n) 1 Kolr Rep«42$,a Rol= Abr, fo6. 2 Cro 334. (°) 2 Rol, At>£ 287. Q) Rajra. 418. H tsd?; t\62 C{ttKC{j-?attr< s.d, they may have an Action on the Cafe againft the Pro- secutor. fflbm, ana to tofjom ttyv arc to accompt.] They are acoun- table to the Rector, Vicar, New Churchwardens and Pa- ri fhioners, for what Goods and Money they have received for the Ufe of the Church, and this is to be done at the end of the Year ; and what remains in their Hands, they are to deliver to the New Churchwardens, by a Writing indented 5 and if they refufe to give up thcr Accompts within a Month aYter the New ones are chofen, they may be compelled by the EcckftafticA Court, or may be preiented at the next Vifitation, or the New Churchwardens may have an A&ion againft them at Law. &i Zttiom tocugfjtagalttfttfcenn] They may be fued in the Spiritual Court for taking away any Goods of the Church, as Bells, &c. and in fuch Cafe the Court will decree the things to be returned in (q) Specie ; but if the Suite is at Com- mon Law, then Damages are to be recovered. Anno 18. Car. 2. an (V) Indictment was brought againft the Churchwardens of Sr. Aiartin in the Fields, for taking a Silver Cup, Colore officii corrupte & extorfive, and this was for placing a Man to be a Gallery-keeper in that Church, it was objected, that this was not an Office, but an Employ- ment belonging the Churchwardens themfelves, and they might depute any Man toainft them. But the Words corrupte & extorftve, being in the Indict- ment, the Court would not quafh it till that Fa6t was tried ; and if it apppeared they held accounted to the Parifh for the Cup, then it might be quafhed. Church Yard. THE Church-Yard is likewife the Freehold of the Parfon, but 'tis the common Burial Piace of the Dead, and for that reafon 'tis to be fenced at the Charge of the Parishioners, unlefs there is a Cuftom to the contrary, or for a particular Perfonto to do it, ip-Tifpedt of his (/) Landsad joyning to the Church-yard, and tha*"* mutt be tried at Common I aw. Buttho1 the Freehold is in the Parfcn, he cannor cut down Trees growing there, except for the neccflary Repairs of the (?) Sic1! 23i, 28q, (r) Sid, 307. (J) a Rol, ±bv. 287. (0Chaace!$ fffffertfattiSi 163 CO Chancel, becaufc they are planted, and grow there for the Ornament and Shelter of the Church. This is the ancient Common Law of this Kingdom, and therefore the Statute made Anno 35 Ed. 1. Ne Reci&res projler- nant arbores in c&miterio is but declarative of that Law ; and the Rectors, who cut down Trees for any other purpofe, may be indicled upon that Statute, and fined, or may be profecuted at Law ; and the Courts at Wefiminfhr have gran-? ted Prohibitions in flich Cafes, to ftay any farther Waft. It hath been a (») Queltion where the Rectory is impro- priate, and theVicaiidge endowed to whom the Trees in the Church-yard do belong ; if to the Vicar, 'tis only becaufe he is to repair the Church ; and if the Impropriator cu: then* down, and the Vicar Libels againft him in the Spiritual Courts a Prohibition fhall go , becaufe if he hath a Rk;ht to the Trees, he may bring an Action of Trefpafs againft the Im- propriator for felling them. Ciftprtians. THESE were an Order of Monks, very much admired here for their Piety and Stridtnefs of Life; for by this means^ when they firft came hither, which was foon after the Con- queft, they ingratiated themfelves fo much to the People, that they foon got Lands, upon which they wholly fubfifted, and paid Tythes out of thefe Lands to the Rectors of thefe Churches to whom due. Afterwards having built Monafteries, they did iked Appro- priations to them, calling it Sacriledge to "take Tythes from the Secular Clergy ; but by Degrees growing rich, and ha- ving founded Abbies in the Reigns of H. 1. and King Stephen, and other fucceeding Kings, all which were well endowed^ then their Zeal for the poor Clergy abated, and at lalt they got as large, and as many Priviledges to exempt their Lands from Payment of Tythes, as any Order whatsoever. My O) Lord Coke tells us, that at firft moft of the Or- ders of Monks were exempted from Payment of Tythes out of fuch Lands which they held in their own Hands, but that Pope Adrian the 4th. retrained it to the Gftertians^ TempUri and Hof pit alters ; and this he tells us was in the Year n 50 which was towards the latter end of the Reign of King '■-■ 1 ■ ■ 1 ■ «■»■■'"— ....-., , ., . . ^. . . _ • (0 1K.0I. Rep. 25 j. 23|* («) iRol, Re£>; 255* 2 ' Roi. Abr. ?ii.327. %C) 2lRft,Sj2, 2 0-Q.4M- w ' / M 3 Stephen \ 1 64 Ciffettfaito. Stephen ; and yet in the fame Page he tells us, this Privilege was granted to thofe Orders of Monks, by xhzCouncil of Lat- er an, which was not held till above fixty Years afterwards, (viz,.) 17 of our King John, Anno 1215; but Bifhop (y) Stil- lingpet is certain that Council made no fuclr Decree. Now this Re(tri6tion of Adrian was not narrow enough, becaufe it extended to all the Lands of thofe Orders, which they had, or might hereafter have ; and therefore Pope In- nocent the 3d, many Years afterwards, retrained this Privi- lege to the Lands which thefe Orders then had, which was before the (z.) Later an Council ; and this Decree of that Pope was received by the general Content of the Kingdom; and therefore this Priviledge was limited to thofe Lands which thofe (Orders had before that Council, tho' 'tis generally held in our Books, that the Ciliertians were difcharged of Payment of Tythes, by the aforefaid Council. So that what Lands they had after that Council, could not be legally difcharged, and therefore thofe who claim any fuch Privilege, ought to prove that they enjoyed the Land before that Council, and the Proof ought 'to be the ftr icier, becaufe tis a Privilege which they claim againft common Right. Now 'tis certain, that feveral Lands were given to this Order, fiilce that Council, which if found out are not exempted at thisDay ; for tho' by the Staute of {a) DiiTolution, &c. all Lands were difcharged, which were in the Hands of the Abbots at that time; yet this is no good Difcharge, becaufe the Statute puts fuch Lands only in theTame legal Capacity to be difcharg- ed as they were in before ; now if they were given fmce that Council, they were nctin a legalCapacitytobe difcharged at all. 2. The Abbots and Convents of this Order had made real Compositions 'with the Rectors for Tythes due to them for their demilne Lands, and this Prvilege of Exemption did not extend to fuch Compofitions. In the Progrefs of a little more than 100 Years, thefe CV- [tertians pixtended to fo great Privileges, that they not only claimed to have their Lands difcharged of Tythes, but from Taxes to the King, for they refuted to contribute to the pub- lick Levies in the Time of King John, who. Anno 11. of his Reign, was engaged in Wars with the Irifh and Welch ; and this made that king exadx from that Order 5300a Marks, a great Sum in thofe Days ; and not contented with this, he (tonfifcated all their Goods, and would not fiiffer them to hold any Chapter till the Money was paid. Oj Sail. BcckC§afc*tf 2x3. W HardrSBioi, W}i^8. This (Cilfertiang* ^j This brought them into fo mean a Condition, that they de- pended upon other Orders of Monks for their Subfittanee. But about thirty Years afterwards, they fo well recovered this Lofs, that H. 3. defired the Archbifhop of Turk to ask them for a Year's Profit of their Wool). They defired to be excufed, however the Archbifhop pref- feditfomuch, alledgingthat the King was always willing to help them in their Neceflities ; and enforcing his Requeft with other Arguments, that an Abbot of that Order replied, the King was fworn to do Juftice, and that whilft he govern- ed according to Law, and committed no Oppreftion, they would give him any thing for the Health of his Soul, and the Good of the Kingdom. But (till they refufed to contribute to the Support of the Government ; and not only fo, but they oppoled the Pope himfelf; for Gregory the 10th having given Leave to Otto his Legate, to receive Procurarions from the Order, {uidulgmtia concejfa eidem ordini non obstante^) the Legate exacled Money of them, inftead of Procurations, which in thofe Days were to be paid in Victuals ; but they pretended to have Bulls of Ex- emption, from Payment of all manner of Procurations, and therefore they withftoodthe Legate's Demands 5 and the Pope, to foften the Matter, commanded him, that in his Vifitationhe fhould be contented, cibis regttlaribm abfque uftt earnium^ and not to take any Money ; and this (h) Mr. Prynn tells us was the firft non obstante which was oppofed in England. Butthefe Monks were not contented that the Land? whidh they polTefTed themfelves fhould be diicharged of Tythes ; for; they attempted to get the Pope's Grant, to exempt the Lands which they had Lett to Farmers from Payment of Ty< and this would certainly have impoverished the poor fecu Clergy, to whom fuch Tythes were due. Therefore, Anno 2 H. 4. cap. 4. the Parliament b ;ng ac- quainted with this Matter, a Law was made, prohibiting the Gslertians, and all other Ordeis of Monks, to procure Bulls for fuch Difcharges, under the Qc) Penalty of a fu- mnnire, that is, to forfeit his Goods, and the Profits of his Lands during Life ; and to be alio imprifoned dining Life, But 'tis agreed on all Sides, that they were difchatged from Payment of Tythes, for Lands which they polTeiTed them- ■ ■ ' ' ' ■ ■ ■ !■■■■■.■ ..!■ .'I (b) Prynn on th* 4th Iaftitnt. \2.9. {«) Burnet's ft ft. Reform. ifPf. iph !»;,- Degg. 334. • • 1 66 Citation. felves, before the Lateran Council ; and that by (d) 2 H. 4, their Farmers and Tenants ought to pay Tythes : Now if an Aobot and Convent of this Order had made a Leafeof their r re the DnTolution, &c. and afterwards that Leafe cpired and the Grantee of the King had kept the Lands in hi m PofTeffion, they fhouldfo long bedifcharg- ed of Tythes 3 tho3 by the Statute of (e) Diftolution, the King was to have the Lands in the fame manner as the Go^ vernouis held them, which at that time payed Tythes, be- caufe they were then Lett to Farm. It hath been a Quett'on, what Lands fhall be faid to be in Poffcfjhn of this Order; as for inftance: If Cattle are agilted on their Lands, whether this can be properly faid to be (/) inproprils wanihus, and 'tis held it cannot ; for the Profits, which is the Herbage, are not taken by the Owner of the Soil, but by Cattle ; and therefore the Owner of the Cattle, or of the Soil, muft pay Tythes, but rather the Owner of the Cattle. But this, and all other Orders of Monks, being long fince defolved, or furrendered to the Crown, I fhall no longer in- lift upon any Matters relating to them, but fhall refer my Reader to the Title (Monks) herein after mentioned, where he will find, that all the ancient Abbies were of the Order of St. BenediU; ; that GLjfenhury Abby in Sower fetfhirey was the firft which was founded in England, of above 200/. per An- num, of which Order there were 52 Abbies and Priories of above that Value, at the Time of the Diftolution ; and that the Gjhrtians encreaied fafter than the Beneditlines ; for in a little more than the cornpafs of one Age, there were 37 Ab- bies, and other religious Houfes of that Order, of above the yearly Value of Two hundred Pounds. Citation. HpHIS is a Precept under the Seal of the Ecclefiaftical ■*• judge commanding the Perion, againtt whom the Com- plaint is made to appear before him, on a certain Day, and at a certain Place therein mentioned, to anfwer the Com- plainant in fuch a Caufe, &*c. and 'tis required by the (#) Canon, that the Name of the Party fhall be exprefled in (d). Dyer 277, 278. (*) li H. 8. cap.. 13. (/) Harfoes 1843 ; 'jcr i2oj ■ - lbs Citation* 167 the Citation, and that the Hand and Seal of the Judge fhallbe affixed to it. The Archbifhop of Canterbury had fuch a Tranfcendent Power and Jurifdidion here, that he could cite any Man to the Court of Arches, out of the remoter} part of the Kingdom, and this he could do for any trifling Caufe, as for Defama- tion, &c. and upon any frivolous Pretence for not paying Tythcs, and the Apparator making Oath, that the Party was duly cited, and not appearing, he was excommuni- cated, and could not be abiblved without paying the Fees of the Court, and of the Apparator, which was ufually two Pence per Mile. This was found to be a great Oppreffion, and therefore by the Statute 23 H. 8, cap. 9. it was provided, that for the Eafeof the Subject, no Perfon fhould be cited to appear out of theDiocefs, or peculiar Jurifdicfion where he liveth, un- der Penalty of double Damages to the Party grieved, to be re- covered by A6tion, &c. and alfo ten Pound to the Queen and Profecutor; but there is aCIauie which excepts, (1.) For fome Spiritual Orfence committed, or omitted, or done in the Diocefs, to which the Par- ty {hall be cited. r (2.) Or upon 311 Appeal where the Party (lull p \ find himfelf agrieved by the Ordinary. • txcept< ^.) Or where the Judge either dares not, or will C not cite the Party. (4.) Or unlefsthe Judge is Party to the Suit. (5.) Or at the Inriance of an Inferior Judge to a Superior, in Cafes where the Canon Law, or Civil Law allow it. My Lord Coke tells us this Statute is but declaratory of the ancient Canons of the Church ; and that 'tis particularly ex- plained by the 94th Canon of King James, (viz,.) that the Dean of the Arches fhall not cite any Perfon who doth not dwell in the particular Diocefs, or peculiar of the Ar hbi-» fhop, for any Ecclefiaftical Matter, without the Leav r the Diocefan, except in thofe particular Cafes abov< tioned, for the Archbifhop,, before the Reformation had no concurrent Jurifdi&ion in every Diocefs of his Province, bt only as he was the Pope's Legate, and therefore the Judge cf the Audience, who kept Court in Southwark ; part of which is in the Diocefs of Winton, and cited Perfons thither from the furthett part of Hampjhire, and excommunicated them if Jhey did w% appear, and would cot abiblye them unlefs 1 68 (Citation; they fubmitted to have their Caufes determined in the Arches ; this was held contrary to the Statute. As to the laftof thefe Exceptions, (viz,,) that a Man may be cited cut of his Diocefs at the Inftance of an Inferior Judge to a Superior, where the Law allows it • thefe Words are rettri tue. -Ana therefore all Caufes may not be transmitted ittc a Caufe to the Arches, becaufe it was fo difficult, b( Pontiff could not have Council in the Country ; this was held an infufficient (z) Caufe. And it hath been a..QuerTTon, whether a Chancellor can tranfmit Caufes to the Arches, becaufe 'tis Rill to a delegated Juriidich'on ; therefore forne are of Opinion, it ought to be from me Ordinary to another. But 'tis agreed, that where a Peculiar is Subordinate to a Bifhop, there the Caufe muR be tranfmitted to him, and not to the Archbifhop ; unkfs the Peculiar is exempt from all or- dinary Jurifdi6tion> and the?1 it muft be to the (£) Queen. And when a Caufe is thus tranfmitted, 'tis fuflftcient that it appear fo upon a Motion, for it need not be * pleaded, tho' formerly it was held f otherwife. And as a Man who lives in a Peculiar, may be cited by the Ordinary of that (/) Diocefs where the Peculiar is fo; if that Peculiar hath a Jurisdiction by Prefcription, exempt from the Power of the Ordinary, then the Perfon muft not be cited out of it. I grant, the Dean of the Arches hath a JurifdicYion through- out the whole Province of Canterbury upon an Appeal brought ; but he cannot cite one to the Court , who doth not dwell in the particular Diocefs, or Peculiar cf the Archbifhop, with- out the Leave of the proper Diocefan firft obtained, except in the Cafes above- mentioned ; and yet that Court (hall be pre- ferred before any other Spiritual Court ; for if there are two (m) Executers, and one lives within the Jurifdi&ion of the Arches, and the other not*; 'and if a Suit is brought againft them, it (hall be in the Arches, otherwife there would be a Failure of Juftice ; for one Executor cannot be fued without the other. . But a Man may be cited to the Arches who lives in the Di- ocefs in London ; and this by vertue of a Compolition be- ^n Hob m. (k) Hob. i<5. 186; * i Levintz. 186. t Latch. 1 80. {Q a RoLRep 44*. Si* so. • (*>; 3 Kol. Rep. 328. ■' : ■ * ■ tween. Citation, 169 tween the (») Archbifhop and that Bifhop, and 'tis forthi8 Reafonthat the Arcbbiihop never vifits that Diocefs. Tis true, this was always denied by Juftice Twifden, who held that fuch a Compofition was taken away by the (o) Sta- tute, and that the agreement between the Ordinaries could not prejudice the People, for whofe Eafe and Benefit that Law was made. But tho' it was made for their (p) Eafc, they muft take Advantage of it in proper time; for if a Man, who lives in an inferior Diocefs, is cited to the Prerogative Court for a Lega- cy, (the Will being proved there) and if the Sentence is for the Legacy, and that Sentence is confirmed upon an Appeal to the Delegates, then 'tis too late for a Prohibition upon a Suggestion, that the Party was cited out of the County where he lived, becaufe he had owned the Jurifdi&ion throughout the whole Courfe of the Proceedings. If a Man comes into a Place to (q) Trade, tho' he is not properly an Inhabitant there; yet he may be cited to the Archdeacon's Court of that Diocefs, for any Spiritual Ofc- fence by him committed there, tho' he inhabits elfewhere, jfor otherwife he might offend in one County, and remove to another, and fo go unpunifhed. And becaufe no Perfon fhould be cited into feveral Courts for one and the fame Offence, therefore 'tis provided by the (r) Canon, that where the Bifhop and Archdeacon do either by Cuftomor Prefcription, vifit at feveral times in the fame Year; that in fuch cafe the Archdeacon do under his Hand and Seal, and within one Month after his Vifitation, cer- tifie to the Bifhop, or his Chancellor, all fuch Prefentments as were then made ; and that the Chancellor do, within the like time after the Bifhop's Vifitation, certifie to the Arch- deacon all Prefentments made in the Epifcopal Vifitation ; and the Penalty for not certifying, or for intermedling in each other's Vifitation, is Sufpenfion from exercifing Jurifdi<5tion, until he pay the Cofts and Expences to the Party grieved by fuch Vexation. W Cro» Car. 339, 340. Hardres 375J1 380. (•) Raym. 92. ^Crs Car; 97. (tf Hardres 421. (r) Canon 1 % «. Clergy. 170 Clergy. 'THIS Word is derived from the Greek Wbrd Cleros, which A fignifies a Portion ; for the Men of this Order are, or fhould be, in a peculiar Senfe, the Portion of the Lord. In the Ecciefiaftical Notion of the Word, it fignifies the whole Clergy ; but in the Legal Senfe of it, 'tis diftinguiilied from the Prelates, and fignifies only the inferior Clergy, Rigaltim in his Obfervations upon St. Cyprians Epiftles, and our Mr. Silden tells, There was no Diftinaion in the Primi- tive Chriltian Church, between the Ckrgy and the Laity, but this muft be a Miftake ; for tbo' all Chriftians are God's Por- tion and Inheritance, yet thofe who are fet a-part for his Ser- vice, are in a more peculiar manner his Portion ; for we fee, that under the Mofaical Difpenfation, the Priefts, the Le- vites, and the Laymen, had dirUn# Offices appropriated to tLem. Tis true, at firlt all the Difciples of Chrift had a Com- roiffion to Ttach and Baptize all Nations, and this was in order to convert the Pagan World ; but when many (Jon- verts were made, there was a Necefltty to form them into re- gular Societies ; and there was the like Neceffity to have Ru- lers and Gorernours in fuch Societies, without which it was impoiTible they fhould fubfift. All the Superior Orders of Men in the Church were an- tiently called Clerici, but afterwards the Word wras appro- priated to Inferiors. Tis true, in the firft Ages of Chri- ftianity fome were didinguflbed by the Name of Presbyters, who were Men ordained to particular Offices in the Church ; not by reafon of their Age, as the Word it felf reports, but by reafon of their Qualification ; thefe were fettled in the Church, by the Apoiiles themfelves, with Power to Preach, and to Adrninifter the Sacraments ; they fate on each fide of the Bifhop, in his Cathedral, and were his ftanding Council, with whom he advifed in ail difficult Affairs of the Church. But I fhall not enlarge on the Word, my Intention being to treat of the Clergy, as they are a divided Effete of trie Realm from the Laity, both as to their Perfons and Eftates, which they enjoy in Right of the Church. And fitft as to their Eftates : They have certain Privileges which the Laity have not \ as for inftance : They are dif- charged from Purveiance. they are not to ferve in any Tern? pora! Office again'* their WUU and therefore where a Cler- gyman Clergy 171 gyirtan was made Expenditor by Commiflioncrs of Sewers, he had his Writ of Privilege for vir militant Deo non implketur fc- cularibm negotiisy fo is the Kegifttr, and lo likewife is the an- tient Law of this (/) Realm, Quod Clerici non ponantur m tfficia. They pay no Toll for Goods they have in Right of the Church, they are difchargcd from Pom age and Murage; but this is by the common Law, which has been altered by feveral Statutes, and particularly in this Cale ; for tho* it hath been helcl that they are not comprehended under the general Words of the (t) Statute, for repairing IJridges, which ena6ts, that decayed Bridges (nail be repaired by the Inha- bitants. So by the Statute i%Eliz,« the People dwelling in a Hundred where a Robbery iscomited, muft produce the Felon : So by the (») Statute 2& %Ph.& MarU, every Houfholder is to work on the Highways ; and by another (,v) Statute, all Re- fciants in the County inall be charged towards the building a common Goal • yet by the latter Judgments and Authorities in Law, they are made liable to all publick Charges impoied upon the People in general, by A61 of (y) Parliament, if not exempted by Name, and particularly for mending the Highways. Then as to their Perfons, in an Adtion of Accompt, the Sheriff cannot have a Capias to take the Body, but he muft re- turn quod clerkus efi beneficiatus nullum habens laicstm feodum ; but in fuch cafe he fhall have a Writ to the Bifhop to fum- mon him to appear. His Body cannot betaken in Execution upon a Recogni- zance on a Statute Staple, for he is exempted by the very Writ, viz,, (z,) Si laicus capias, which implies, that if he is not a Layman, he muft not take him. _ So a Fine levied of his Spiritual PofTefllons (hall not bar his SucceiTors, becaufe the Statute 1 3 Eliz,. makes all (V) £- ftates fuffere d by them void, and by Fine and Non claim, an Eftate isfuffered to pafs. Now as the Law hath taken care to protect their Eftates and Perfons in the Cafes before- mentioned, and to fecure a Maintenance for them without their Care or Labour, this fhould not make them remifsin the Cure of Souls, but ra- ther encourage them in the diligent and confeientious Dif- (.0 1 Vent. ioj. (t) aa H. 8. cap, s- 00 cap. 8. (*■) I % H. 8. cap. 2. (j) i Vent. 371, 1 Lev, 11* (*0 2 Ink. 4. (*) n Rep. «6. xRqhRfp, 171, idem, •' > ■»" charge i72 Clergy* charge of their Duty, which they ought to perform, if for nothing elfe ; yet as a grateful Retribution to the State for fuch Laws, by which they have a conftant and fettled Re- ward for their Labours. It cannot be denied, but that iuch Laws are very juft and equitable; for 'tis reafonable, that whilft the Clergy, by a diligent Application to their Duty, are endeavouring the Ser- vice of God and the Church, they fhould be fecured in all the necelTary Conveniencies of this Life, efpecially fince by this means the Pecfple are prepared for a better. This is the greateft End and Defign of their Mini(try,but yet they are not altogether forbiden the Intermedling in fecular Affairs, either by the Apoftolical Canons, or by any other Canons of the Church; for Zonaras> who wrote a Comment on the firft, allows Clergymen to be Guardians to Infants ; and Vis certainly a fecular Employment todifpofe their Eftates to the beft Advantage. 'Tistrue, (b) St. Cyprian tells us, That Churchmen employ- ing themfelves in fecular Affairs have brought down many Perfections amopgftChriftians; and he was fo very angry with Fauftinus, a Presbyter of the Church of Carthage, be- caufe Geminius Viftor had made him Executor of his Will, that he fufpended him from his Monthly Allowance, and would not fufter any Prayers to be made in the Church in his Name ; and yet I do not find that Fattftinus either defired, or took upon him the Executor (hi p. But becanfe the Church was then perfecuted, and in a time when there werefo many Divifions amongft the Church- men, that there were fcarce enough to perform the daily Of- fices, therefore St. Cyprian was the more difpleafed at this Action, that he might difcourage other Men from giving the Fredpers of his Church any manner of Opportunity to withdraw themfelves from their Duty there. Befides it was' his Opinion, that St. Pad had eftabli Chcd^ a perpetual Rule againft the worldly Employment of Churchmen ; for fpeakmg of them he tells us, That no Man who wareth entangleth himfelf with the Cares of this Life. Padus Sar/iofetanus was the firft Churchman of Note, who was employed in fecular Affairs, but when the Empire be- came Chriitian, 'tis reafonable to imagine, that Churchman were in great Favour with Princes, and conftantly in their Courts, where they had fecular Employments conferred up- on them, as the Rewards for their care in converting InrX- ,, Cypnan Epim,' * * V ^. cfels; but thiswas^ afterwards prohibited by Ca nans, and con- demned by Imperial, Provincial, andLegantineConftitutions. I grant they might be Arbitrators amongit the People ; and (c) St, Paul himfelf did not intend toexciude the Clergy from this Office, when he adviied his Corinthians to refer their Dif- ferences to their Brethren ; but the reafon was, becaufe they fhould not profecute one another at Law in the Courts of Heathens, which Reafon ceafed when the Judges in the Tem- poral Courts became Christians. Tis true, from the 19th Canon made in the Council of Eli- beris, by which 'tis ordered, that Presbyters (hall not leave the Places in which they ferved to follow Merchandize, it may be inferred, that they might Merchandize there, while they miniftred, for that they might do for their necellary Main- •tenaricc, and fupply the Cure befides. And this is agreeable with cur Law, for tbo5 by the Statute 21 H: 8. cap. 13. Spiritual Perfons are forbidden to farm any Lands either by themfelves, or by any other Perfon to their Ufe, under the Penalty of Ten Pound per Month to the Queen and the Informer, or to buy any Cattel, or Merchan- dize to fell again for Profit, under Penalty of treble the Vai- lue, to be divided as aforefaid ; yet the fame Law allows, that if They have not fufficient Glebe or Demefne Lands in right of the Church, they may farm more for maintaining their Families, and may buy Cattel to manure it. Tis to be obferved, that the Clergy, fince the Reforma- tion, have been fo conformable to this Law, that we read of but one Profecution againft any of them upon this Statute, and that was fix Years after it was made, an A.ction of Debt was brought againft a Vicar, for farming Lands contrary to this Statute, who pleaded non habmt jets tenuit terras &c. ai firmam contra formam Sratmi ; and upon this lfTue it was held that he might give in Evidence he took Lands for the Mainte- nance of his Family. Upon the whole Matter, fince the Clergy are an Order of Men let apart to attend the Service of Religion, 'tis neceffary they (hould have a fettled and fufficient Maintenance to fub- fift, that they might not be diverted from their Duty by fak- ing their Living from fuch Advantages as might accrue by Bargains, Contrads, or any manner of Secular Employ- ment; but yet they are not altogether prohibited in fuch Ca- fes, but only from fuch Bufinels which might be an Avocatioa from their Minifterial Duties. (<) x, Corinth, va A Hi 174 CKrgp* And as this might be done for their Support, fo the State in thofe Days was not depriv d of their Service, efpecially of thofe who by natural or acqnir'd Abilities were prepared for it, for as foon as ever our Saxon Ancestors were converted to Chriftianity the Clergy were call'd to their pub lick Councils, and their Advice was taken in the greateft Affairs of the Na- tion, for we read in thofe Days that Tarn Clerus qttam Pcphlus were fummon'd to the great Councils, by the firft of which Words the inferior Clergy as well as the Prelates, and by the laft the Nobility as well as the Commons were compre- hended. And 'tis evident that the inferior Clergy of every Diocefs fent Two Proxies of their Body to Parliament, who fate and voted with the Commons in one Houfe till the Reign oiEd.%. and thofe who fent Prodtors were at the Expence Of their At- tendance there, as the Counties were at the Expence of their Knights, for when the Abbot of ' Leicefter^ who was fummon'd to Parliament Anno 26 Ed. 3. had petition'd to be excused, becaufe he held no Lands by any other Tenure than Frank- dmoigne, this Petition could not be allowed, unlefs he had agreed to contribute to the ufual Charge of fending Prodtors to Parliament. And it farther appears by the Queen's Writs of fummoning the Prelates to Parliament that there is a Claufe to warn the Deans and Archdeacons to appear in Perfon, and the Chapter and Clergy, by their Proctors, ad confentiendum, to fuch Ads as fhall be made by the Common-Council of the Kingdom, which Form is us'd at this Day, tho' the inferior Clergy thus fummon'd have not late in Parliament for fome Ages. However, it feems paft doubt that they had fate there, for in the Convocation which met Anno 1 Ed. 6. the Lower Houfe petition'd the Biihops that fome of the inferior Clergy might be re-admitted in the Houfe of Commons, according to the ancient Cuttom of the Nation, and according to the Tenor of the King's Writ to the Bifhops. The fame thing was mov'd again about the latter End of Queen ElU. Reign, and a Paper was deliver'd to her fetting forth, That it did not appear by any Hirtory or Record how they came to be excluded the Houfe, but it was thought it might be either by fome angry King or ambitious Prelate. Tistrue my Lord of Sarum is not fatisry'd in thefe Particular^ but makes it a Doubt whether the Clergy were ever in PoiTelTi- on of any Right to be chofen Members of Parliament by virtue of the Premonitory Clauie in the Writ of Summons* But Clergy 175 But the learned Dr. Attcrhury hath prov'd them to fend Members to Parliament in the ftricleft Senfe, and there is Reafon to believe that they fate there after the Reign of Ed. 3. for the Dnh of Gloucester having obtain'd an A61 Anno 1 1 R. 2. ' by which he had the Government both of the King and the Realm, that AcT: was repeafd Anno 21 R. 2. at the Petition of the Common?, and by the AfTent of the Lords Spiritual and Temporal and Prottors of the CUrgy, which were certainly part of that Parliament. Tis objec>; againfi this Opinion ^ That 'tis improbable the inferior Clergy fhould be part of that Parliament, fince they were never mention d before or fince to have any Share in the Legillative Power, and therefore fome imagine thofe Proctors of the Clergy were the Lower Houfe of Convocation, which fate with the Lords and (d) Commons till they fate apart, and then the Clergy fate in Two Houfes, (w*.) the Biftiops in the Houfe of Lords, as Barons by Tenure, and the inferior Clergy in Convocation. Buttheaforefaid learned (e)Dotf or hath given us Inftances of thefe Proclors of the Clergy fent to Parliament from the 22 Ed, 1. to ip H. 7. but withal he tells us, That iome Time af- ter the Conqueft it was^ thought more regular and agreeable to the Canons that the inferior Clergy fhould attend the Par- liament, not in one Body, as they did thro1 all the Saxon Reigns to the Time of H. 3. but in Two Provincial Svnods, and that accordingly they had fo attended for near 400 Years, which feems to contradict what he alledg'd before, for we ne- ver read that they attended in fuch Synods as a feparate Body, and at the fame time were reprefen:ed in Parliament by their Proclors, as Members thereof. Thofe who cannot deny that the Proctors of the Clergy have fate in Parliament have difputed what Power they had when -met there, and particularly my Lord Coke Cf) was of Opinion that they had no Votes, if fo they could not be Mem- bers, but only Affirmants to Bifhops. But this could never be, for then they fhould have fate in the Houfe of Peers, befides the Claufe in the very Writ of Summons intimates that they were part of the Parliament, as hath been obferv'd before, a ad i f a part cf Parliament they had certainly a Right to vote, or dk they had been fas fome will have them) a very infignificant part ; it likewise appears by the Petition before- mention d that they had fuch a Right, for otherwife there had been no occafion of a Petition to be reftor'd toiu * ' • , , . — „ „— . mmmmm GO .% Hi & a §C «?- (0 Attc:b, Append j*$. (f) 4 Inft. 3. 4. But But be it as it will, the inferior Clergy were by degrees ad- mitted into Provincial Synods, which at firft conGfted oaly of Bifhops and Abbots, and now thefe Clergy are an eiTential part of the Convocation, for they have a Right to be fum- mond thither, and when met they have the Freedom ancl Liberty of voting in any Debates which may arife concerning Che Doarine or the Government of the Church. At firft they ufually fate with the Biihops in one Houfe, and fometimes they retir'd by themfelves, the better to ictm and colledt the' Debates upon any important Occailons^ and to report their Refolutions therein. But in the Reign of H. 4. they divided from the Bifhops^ and fate in a diftincl Houfe by themfelves, but did not chufe a Prolocutor in many Years after, for we read that the fa- mous Canonift Undwooi was the fnit Prolocutor Ckri7 and he liv'd in the Reign of H. 7. Having given the Reader an Account of the Word Clergy, and of the Privileges and Maintenance which they enjoy by Law, that they might with more Freedom attend the Service of God and his People, and therefore that they ought not to undertake any Secular Bufinefs by which they may be diverted from a Work io great and necefTary, thos formerly they at- tended the publick Councils of Kings, and were Members of Parliaments here, and when excluded from thence were ad- mitted inPto rovincial Synods, and are now an eiTential part of our Convocation, 1 fliall in the lart place mention what fort of Perfons the Clergy are requir'd to be in refpeel: to their Behaviour ; and I find by the * Canon that they are to be fo- ber in their Converfation, that they fhould not refort to Ta- verns or Alehoufes, or play at Cards or Dice ; and this is not only prohibited by that Canon, but by the Apoftolical Ca- nons, (viz*) that they fhould not frequent publick Houfes, nor play at Dice, and by the Council of Eliberis 'tis Excom- munication to do either ; and Jnftinian forbids (g) Clergymen not only playing, but being prefent at it ; this was likewife forbidden in the old Articles of Vifitation here, and in feveral Diocefan Synods ; the Puniihment by our Canons is by Ec- clefiaitical Cenfures, according to the Quality of the Offence. • Canon 7^ ^ Spelfy Council 2 Vol. 132. 252. 29$. 367* 45Q. Clerk 177 Clerk, of a Parijh. THE Bifhop of Worcefler tells us, that tbe Re&ors of thofe Churches which were very well endow'd could the better maintain inferior Clerks, who might be afllftant to them in the publick Service of the Church, and this was the true Ori- ginal of Parifh-Clerks, who were at firft intended as Affift- ants to the Incumbents, and therefore were ufually chofen by them. They were call'd Clerks thoJ not in Holy Orders, and their Bufinefs at firft was to officiate at the Altar, and to fay Maf- fes for the Dead, and they had a competent Maintenance for this Service by the Offerings made at thofe Altars where they officiated, for in thofe Days there were feyeral Altars in one Church. Since the Reformation there is but one in a PariiTi, who, by the * Canon, is to be chofen by the Minifter, and this is to be fignifyM by him on the next Sunday to the ParifhionerSo The Perfon thus chofen muft be Twenty Years of Age, and one who can write and read, and alfo he mutt have a com- petent Skill in Singing, and fuch Clerks (hall receive the ufu- al Wages, for which they have Remedy in the Spiritual Court, but if they fue there for a certain (h) Quantity of Bread due to them by Cuftom from every PariQuoner at Chriftmas a Pro- hibition fhall go. But where there is a Cuftom (/) for the Parifhioners to chufe a Clerk 'tis good, and the Canon cannot abrogate fuch Cu- ftom, and in fuch Cafe he may have a Mandamus to the Arch- deacon to fwear him, and if a Suit fhould be in the Spiritual Court to remove him, and to put in another chofen by the Parfon a * Prohibition flhall go. Collation. T* H I S is where a Bifhop giveth a Benefice which he hath A either as Patron, or which came to him by Lapfe ; in the firft Caie he collates jure plen0; and ibme have been of Opinion, that in the other Cafe he collates jure dcvoluto, but that is a Miftake ; for of common Right Churches are under the immediate Care of the Biftiop ,* and the Right of Prefen- *Can.9i: (h) 2 Rol Abr 28S. (i) Cro. Or. j8j»« a IUI. Rer7 73? 4tl« «7o, 2 Rol, Abr, s?4« 1 Gv. $70: .♦ Rol Abr. as*. N . tatwn 178 Collation* tation was only indulged to the Laity, to encourage them to build and endow more. Now if the Patron neglects to prefent, then this Right returns to the Biihop in whom it was originally before the Pa- tron could pretend to if. Tis true, if the Biihop fhould neglect to collate within fix Months after the Laps, then the Archbifhop hath a Right to do it, and this is properly jure dcvolttto, becaufe he doth not collate as Ordinary, but as Superior, in whom a Power is veiled to fupply the Neglects of all Bilhops within his Province; and if he fhould neglect, then it devolves to the Cueen, who hath the Supreme Power to reform all the Defects of Government in any of Her Subjects. And as a Biihop may neglect to collate, fo it may happen^ that he may collate without a Title ; but this wrongful Col- lation doth not put the true Patron out of PofTcflTion, for he may prefent his Clerk, tho5 the Collatee of the Biihop is intui- tu ted and ind ilded. And in this refpect Collation differs from a Prefentation, for if a*Patron, who hath po Right prefent?, and his Clerk is militated and inducted, and hath quiet PolTeflion for fix Months, this is an Ufmipmon ; and the true Patron fhall ne- ver prefent again, till he hath recovered his Rigt by a Writ of Right of Advowion ; but if a Biiliop collates without a Title, that doth not make an Ujxrpation either againft- the Queen, or a common Perion, for he is bound to recieive either of their Clerks when presented ; and if he refufeth a Quere twpeait lies aginft him, and the Reafon is, becaufe this Collation (hall be intended only as a {k) proyifional Incum- bency, that Divine Service may be performed till the true Pa- tron prdents. Yet in the Cafe of Coparceners of an Advowion, where the Clerk of one of tfee'm is deprived, if the Biihop. collate with- out giving Notice of the Deprivation to the other, and the Collatee dieth incumbent, this wrongful Collation fhall be a ferving his Turn, becaufe it was good againit all but the true Patron ; and be having neglected to remove that Incum- bent, and flittering him to die in PoiTeflhn, that Neglect fhall not turn to the Prejudice of the other Coparcener. But when once the (/) Bifhop hath a Title to collate by T.apfe, if the true Patron ihould prefent his Clerk before the Collatee is inducted, the Bifhop is not bound to receive him; but if the-Archbifhop fhould collate within the Bifhops fix (k) '1 Inft. 344' b. (0 2 Ro!. hbu 367, Months; Commetftam. 179 Months; and the Patron in fuch Cafe, (hould prefent his Clerk to the Bifhop, he is bound to receive him, becaufe the Archbifhop had wrongfully collated before his time. So where the Bifhop had fuch a Title to collate, and neg- lecls to do it, within fix Months after the Lapfe, but after- wards collates within the Archbifhop's fix Month?, this (hall be a Plenarty againft the right Patron, and (hall hinder him from prefenting, becaufe the Bifhop had once a Right to collate, and the Ujnrpatiton is not between him and the Pa- tron, but between him and the (m) Metropolitan. It hath been a .Queftion, how thefe fix Months (hall be computed, {viz,.) whether according to Twenty eight Days, or (nyKalendar Months ; and the better Opinion is, that where the Title accrues to the Bi(hop, to collate upon a Depriva- tion he hath fix Kaiendar Months after the Patron's Neglect Commenaam. 'THIS is a Difpenfation from the Supreme Power, to -*- hold, or take an Ecclefiaitical Living, Contra jus pofiti- mm ; and according to the Canonifts, this may be done upori a double Account. r Ecclefa In utilitatm < & L Commcndatorii, That which was for the Benefit of the Church is called Semeflris. That which is for the Benefit of the Party was Twofold, Retinere r And that was intermedia. ■ & -J Capere L And that was Perpettta* The Commenda feme/iris was without any refpecl to the Be- nefit of the Comendatory, for it was only a Provifional A 61 of the Ordinary, or of the Chapter, Sede vaeante, in granting the Profits to a Parfon to fupply the Cure for fix Months, in which time the Patron was to prefent his Clerk 5 and this my (o) Lord Hob'rt tells us, did arife out of a na- tural Equity, that the Church (hould not be without a Pa/tsr^ during that time. Now all Difpenfations beyond the fix Months, were only permiflwe at firit, and granted to Perfons of Merit, but fuch were granted here long before theConqueft; for OfoaU, who f» 2 Rol Abr. $68 (») 2 Cro, hi. 166 (o) Hob. 1^,. N 2 was 180 GommenBam. was Archbifhop of York in the Reign of King Edgar, held the Bifhoprick of Worcejter in Commendam; and probably the reafon of fuch Commendams may be thus : Before there was any Divifion of Parifhes, the Bifhopricks of this Nation were literally endowed, and the Revenues of the Church were brought into the common Treafury, which was always in the Cathedral where the Biftiop prcfided; and thefe Revenues were difiributed by him amongft his Presbyters or Clergy, as he thought convenient, referring a competent Share for himfelf. Afterwards when the Nation was divided into Parifties, and particular Diftritfs were allotted to Rectors, theBifhops parted with a Share to thofe Redtors, and by this means their Revenues were 'conftderably abated, fo that the Pope thought it neceffary to grant Difpenfations in Commendam% for the better Support of the Honour and Dignity of the Bilhop. And by this the Patron had no Injury, becaufe the Right of Patronage, at fir ft, was a Conceflion from the Church; and it lecmed reaibnable that the Pope, who at that Time was the Head of the Church, might in Cafes of Neceflity, grant fuch Difpenfations for a Time. . But this was an Ufurpation upon the Crown, for tho' by the Later an Council Pluralities were condemned, yet the King might grant Difpenfations in Qommendam, to hold feveral Benefices together, and this he might do at Common Law; therefore the Statute 25 H. 8. which takes away that Ufur- pation, doth revert that Right in the Crown. 2. There is a Commenda intermedia, and that is betwren a Commenda Setoeftris, and for Life ; and 'tis Retinere, the Be- nefice for one or more Years, which is the Queen's Diipenfa- tion to prevent an Avoidance when She promotes the Incum- bent to be a Bifhop. This Commenda Rttinert muft always be before Confecra- tion, for afterwards it comes too fate, became the Benefice is then absolutely void; and therefore it watt held, that Cardinal Beattforh Difpenfation Retinere\ the Bifhoprick of Wlnton was void, becaufe it came after he was made ^Cardinal. But-Cardinal Wolfeys Difpenfation Retinere, the Archbi- fhoprick of York was Good, becaufe it was before he was made a Cardinal. . Such a Difpen'fatioji, before Confecration, was always allowed to the Pope before the Reformation, it was the Ec- clcfiaflicai Law of the Land at that time ; and by the Statute 25 H. S. cap. 21, the Archbifhop may now difpence as the 'Pcpc Commentiam. 181 Pope did before ; but fuch Diipenfation muft be confirmed by the Queen. This Commend* intermedia is fometimes ft three or fix Years; thus (cj) Parkhnrji, Rector pf Cleve in Glonce/terfhire, being made Biihop of* Norwich, obtained a Diipenfation, Anno 7 £//^. to hold his Rectory for three Years; So (r) Doctor ihornbury, Dean of Turk, being made an lrifh Biihop, Anno 36 Etiin got a Difpenfation Retinere, his Deanry in Commend am 9 and Doctor Milbourn, Rector of Sevennoke, being made Biihop of St. David, Anno 4 Jac. had a Difpenfation Retinere, his faid Rectory m Commendam for a Year. So Anno 22 J^r. ig the Cafe between (J) Woodley and the Bifhop of Exon, &c. the Incumbent obtained a Difpenfa- tion> to hold his Benefice in Dtvonjbire for hx Years in Com- mendam, being made a Biihop in /re/ W. And in a late Cafe, (r) Do&ot Tennifon, the prefent Archbi- fhop of Canterbury, being Rector of a new Par hh, made by Act of Parliament, and being afterwards made Bifhop of Lincoln, obtained a Difpenfation Retinere, his faid Rectory in Com- mendam for feven Months. It hath been objected in fome* of thefe Cafes, that when an Incumbent is made a Bifhop, a Commend a Retinere for Months or Years, thoJ granted before Confecration, is a void Difpenfation ; becaufe upon the very Promotion, his Bene- fice is void by the Common Law ; and all the Title which he hath to it, is by this Commenda Retinere, which cannot be for Years, becaufe an Incumbency is a Freehold which muft •be for Life, and cannot be diminished in point of Eftate; befides 'tis always obtained by an Inititution and Induction ; and as the Nature of a Freehold could not be altered oy the Pope's Difpenfation, before the Statute 25 H. 8, fo it cannot now be altered by the Queen. The Anfwer to this Objection is, That a Rector of a Church, who hath a Difpenfation to hold it before he is con- fecrated Biihop, doth, by vertue of that Difpenfation, con- tinue Incumbent after his Confecration j for if the Patron ihouid prefent, fuppofing the Church to be void, and his Clerk fhould be inftituted and inducted, yet a Writ of Spoliation lies againft him by that very Incumbent who is made a Bifhop ; which Writ no Man can have, but he who is a perfect Incumbent. ($)Djrer2|}, (r) Latch, 3 j, Jones 158, (/) a Cro..$«. (r) Cafe? ?df«dg. 164. n 1 ' :t>3 1 82 (Commeu&am. 'Tis for this reafon, that if a Bifnop hath a Difpenfa- tion (h) Retinere, his former Benefice in Commendam for three Years, and he reGgns it within that time, the Patron (hal! prefent, arid not the Queen, becaufe the Avoidance is not by Ceffion, but by Reilgnation. So it is if the Difpenfation had been fctinere his Benefice for Life, the Patron fhail prefent after the Death of the Bi- fhop ; by both which Cafes it plainly appears, that the Bi- fhop ftill continues Incumbent on bis firfi Benefice, for other- wife the Avoidance would be by Ceffion. So a (,v) Commendatory Dean may confirm a Leafe^which he could not do if he did not ftill continue Dean. And as to a Temporary Incumbency, without Inftitution, it may be altogether as good as in the Cafe of an Appropri- ation, by which the Church is given for ever, Absque aliqtta Pr°fen:atione induUkne, five Admijfione alicttjus Incumbcntu ad tandem-, by which Words 'tis allowed, that the perpetual In- cumbency pafTeth without Inftitution. And if zQmmenda Retinere for a few Years is granted by the fame Power, there can be no reafon given, but it mult be as good in Law. But we have Inftances of fuch Difpenfations in perpetuum, and they fiand upon the fame reafon with Appropriations, which were the ancient Endowments of fome Bifhopricks, as the Rectories of E aft mean, and Hambleton in Hampjbire, are appropriated ad menfam of theBifhop of Winton. Then as to a Freehold, 'tis true, the Nature of it cannot be altered by a Difpenfation ; but certainly the Profits of tbe Church may be lawfully afTigned for a Term of Years, and that is the Cafe of a Commend a Retinere, which in Truth is mot properly a Commenda, becaufe a Man cannot be commen- ded to that which is his own, 'tis rather a legal Aflignment of the Profits for a certain Term of Years/ or Time to a particular Perfon, and for a certain Purpofe. Befides 'tis very reafonable, that a Commendam Retinere for Years fhould be good, becaufe fuch a Difpenfation doth not alter the Eftate which the Incumbent had before, but con- tinues it in him. Tis true, if the Property of a Living is changed, and a new Right obtained either by Inftitution or Inducloinupon a Prefentation, or by a Grant of an Appropriation ; in fuch Cafes the Limitation for Years cannot abridge the legal E- ftatc ; for notwithstanding fuch Reftiiclion, the Prefentee, |W Dyer 2 2 8. ' (*) Jones rj8. Larch. 31. or Cornmentmnu *%* or Grantee, may enjoy it during Life , and the reafbn is, be- caufe 'tis againlt the Nature of- inch Ads to be temporary, they mutt enure, and be perfedt as they may be, that is, for Life, or forever : 'Tis likewifc a Confirmation for a Year; which mu(i enure forever, becaule 'tis againfttbe Nature of fuch a Deed to abridge the Ettate confirmed. A Commenda is likewife perpetHA, that is for Life of the In- cumbent ; and the fame Objection may be made againft fuch a Difpenfation, (viz,.) that the paftoral Care is not committed by Inftitution and Induction, according to the Forms prefcribed by Law, but thefe Diipeniations are al- lowed to be good ' The Canontfts allow, that Necefllty is the mod reafonablc- Ground for fuch Commendams ; which if true, then 'tis cer- tainly a good Argument for iuch Difpenfations here, becaufe we have lome very fmall Biihopricks; and there feems to be an abfolute Necefllty of fupporting their Dignity by this means. The next is a Difpenfation Capere in Commendam, and this differs from Retinere, for that is only to hold what was his own before, but this to take what bclongeth to another. And this feems to be injurious to the (y) Patron, and void even by the Canon-Law without his Content, becaufe it de- prives him of the Benefit of Prefentalion, which a Difpen- fation in Commendam Retinere doth not, for the Avoidance is by the A6t of the Queen ; and 'tis more reafonable, that Her Authority fhould extend to continue the Perfon promo- ted in the fame Benefice he had before, than to give him any Power to take a new one. 'Tis true, during the time of fuch Incumbency, there is damnum •> but' 'tis ahfque injuria to the Patron ; for it can be no Prejudice to him, that he hath prefented a Clerk, who was worthy to be made a Bilhop, and to whom the Queen had granted a Dilpenfation, notwith landing his Promotion, to continue Incumbent in the fame Benefice during his Life, or for a fhorter time, if She thinks fit ; and when that is deter- mined, or the Perfon dies, then the Patron hath power to prefent again. There have been fome Difpenfations of this Nature, as in the (z,) Bifhop of Ojforfs Cafe, who had a Faculty Per'pe- tu& Commenda titulo aciipijei occupare & Retinere, unum vel plura Beneficia, enrtu vel non curata, fui vel alieni juris Patronatus} (7) 2 And; 184; (&) Davis «e: 184 commentiam. then vacant, or which fhould afterwards be fo, not exceed-* ing the yearly Value of 40/, At the time of this Grant, there was a Vicaridge in his Diocefs which was full, and about five Years afterwards .the Vicar died, and the Bifhop collated himfelf to it by Lapfe. It was objected agaioft the Legallity of thatDifpenlation, that the King could not make furh a Grant, becaufe the Pope could not do it before the Statute ; for if a Layman was Pa- tron, then it was. not good without his Confent; and if a fpiritual Perfon was Patron, there was always in fuch Grants a. Non obstante of his Right of Patronage, and a par- ticular Claufe to the Archdeacon, to put the Commendato- ry in Pofieflion of the Benefice Cnm accident, all which was omitted in that Grant. But it was agreed, that a Caper e in Cbmmendam might be good, where the Right of the Patron was not piejudiced, as if he fuffer a Lapfe. In C%lt and Glover % Cafe the Difpenfation was Retinere in Commandam one Benefice which the Incumbent had before he was confecrated (a) Bijhop of Litchfield ; and Capere in Com- mendam propria authorit ate unum aliod velplttr a, that is, as ma- ny as he could get with Cure, or without, provided they did not exceed the yearly Value of 200 Marks, and to enjoy the famefo long as he fhould live, and be Bifhop of that See. Juftice Dodridge held this Qommendam to be illegal, becaufe It was Caprepluria Beneficia, will out any Limitation either of the Number or Value, which mult be a Miltake, for it was *eftrained to the yearly Value of 200 Marks. My Lord Robert, in his Argument on the fame Cafe, con- demns this conditional Commendam, (viz.) fo long as the Com- mendatory fhould continue Bifhop of that See, becaufe the In- cumbency ought to be for Life, and could not be deminifh- ed ; he allowed it might be good in the Retinere for a Term of Years, but not in the Capere without the Patrons Confent ; and the reafon may be, becaufe in the one Cafe an Avoi- dance is prevented by iuch a Difpenfatior^ but in the other the Church muft be abfolutely void ; and therefore a Com- mendum Capere a void Benefice, deprives the Patron of one Turn at leaft. In thefe two la ft Cafes, all the moft material Objections againft thefe Difpenfations are made and anfwered. 1 (i.> That a Bithop cannot be Incumbent of a Living in his own Diocefs, becaufe he is Sovereign there, and cannot be fw) Kob, 140. Moor 898. at Commiffatp. i8y at the lame time Sub; eel ; that the Office of a Bifhop and Vicar are incompatible, and cannot coriilft in one Perfon. Tis true, when a Perfon is a Subject, 'tis a Contradiction to fay he is not ; but ilich Subjection may ceafe when the Vi- cariate is in the Bifhop himfelf, as a Deputation ceafes when the principal Officer executes the Office himfelf. Neither is the Office of a Bifhop and a 'Parfon inconfiftent in one and the fame Perfon, for the Biiliop hath the Cure of Souls throughout the whole Diocefs ; and tho? the Parfon hath that Cure in a particular Parifh, yet 'tis not exclufive of the Bifhop, becaufe he hath a general Charge over the Whole. (2.) There is another Objection, That a Bifhop ought not to have a Difpenfation to hold a Benefice in Commendam in his own Diocefs, becaufe he cannot viGt himfelf. But this Objection iseafily anfwered, (viz,.) tho' he cannot vifit himfelf, he may be vifited by the Metropolitan. Befides there would be no Inconveniency if in fuch Cafe there was no Vifrtation at all, becaufe the Nature of a Vi- fitation being only to reform Abufes, it cannot be prefumed a Bifhop would be guilty of any Fault for which he ought to be vifited, when the Law hath intruded him with the ge- neral Power to reforme all Abufes in his Diocefs. But in the Cafe of (b) Dodfor Bodes and the Bifhop of Oxford, which was a Difpeniation in Cowmen dam Ret mere as long as he jhould live, and continue Bifhop of Oxford, that was held good ; for if a Commendam Reiinere for Life, is good as cer- tainly it is ; if 'tis good alfo for Years, what reafon can be given, why a Difpenfation for Life, or as long as a Man fhall centime Bifhop of fnch a Place, fhould not m like manner t»e good. Commijfary* HTHIS is a Perfon deputed by the Bifhop s Grant to exer- •P- cife EcclefiaftKral Jurifdi&ion in particular Cafes, and in fuch remote parts of his Diocefs, from whence the Peo- ple cannot conveniently come to attend his Conftflory Court ; and for this reafon a,CommiJfary is called by the Canonift' Officialis foranetis. He is an, Officer created upon Necefllty; for when the Bi- fhops were bound to attend the publick Services of the King- dom, by reafon of their Tenures ,• they at firft deputed Chan- cellors to hearthofe Caufes wherein they had Jurifdi&ion. ■ - (*) Vaagh, t», After- 1 86 Common-paper. Afterwards when tbofe Caufes encreafed, and by various Canons, Diftinclions, and Decifions the Ecclefiaftical Ju- dicature was made more intricate, it was almcft impoftible for Chancellors to determine all thofe Caufes in the Cbn/tjhry Courts, and therefore it was necelTary for the Bifhop, as well for the Eafe of the People, as for the Difpatch of fuch Caufes in particular places in his Dioceis, to fubftitute a (c) Commijfary, and this he may do in every Archdeaconry, or he may appoint one throughout the whole Diocefs. He is ufually made by the Bifhop's Grant, confirmed by the Dean and Chapter ; and when that is done, he may en- joy the (d) Office for his own Life, and not only for the Life of the Grantor ; tho' that was a Queftion formerly, whe- ther a Commijfary of a Dean {hould hold his (e) Ofhce after the Death of the Grantor, and againft his SucceiTor. Then as to the Per/on, by the (f) 37 H. 8. a Layman , be- ing Dotlor of LawSj may be made a Commijfary; which Sta- tute is not reftricYire, that no other Perfon ihall be a Commij- fary, but a Doctor of Laws ; for (g) Anno 3 5 ElU, a Batche- Jor of Laws was made a Commijfary, and he granted Admini- ftration, and it was held good. And not long afterwards the Ecclefiaftical Canons were made, by which Vis ordained, that a Commijfary muft be Twenty fix Years old, and one who is learned in the Civil and Ecclefiaftical Laws, that he muft be either a Matter of Arts, or Batchelor of Law ; and that before he is admitted to his Office, he muft take the Oath of Supremacy, either in the prefence of the Bifhop, or in Court, and fubferibe the 39 Articles -, and muft likewifetake an Oath, that he will, to the beft of his Underftanding, well and truly execute his Office, without refpc6t or favour of Reward. Ke .differs from a Chancellor only in refpeel: of Jurifdi&ion, and the Extent thereof; for they are both made by the Bifhops Grant, only the Chancellor hath a general Authority in Ec- clefiaftical Caufes over the whole Dioceis, but a Commijfary is limited to a certain place. Common- Prayer. SI.N C E the common Neceffities and Duties oi all Chri- ftians are the fame, thole who conform to the eftablifhed Religion here, have agreed upon a fixed and ftated Form of (c) 1 Rol. Rcp.V?*. & ^ RcP« 51. (0 Noy 153. (flCro. ar,ij8. (g) Cro.E!iz. «i:. Praycvs. Commoii'papec. ' 187 Prayers, Praifes and Than kfgivings, to be tiled in our pub- lick and folcmn Devotions, which arc contained in a Book called. The Book of Common- Prayer. And altho* foir.c think it unlawful to pray to God in Set Forms and Words, yet thole who are of that Opinion, do not pretend to Infpiration, but they affirm the Holy Spirit . doth help them in their prefent and iudden Conception, by which they are more earneltly excited to implore the Blefliugs of Heaven, and forgtvnefs of their Sins. I will not enter into any Difpute here concerning this Matter, having never yet met with any folid or convincing Argument, to determine why the Spirit of God fhnuld not be Witting to us, when we pray for a thing in a Form of Words, as well as when we pray for the lame thing in vari- ous and changeable Words, according to our Fancies and Emotions. Neither lhall I difcourfe of the Antiquity of common Forms of Prayer, which hath already been done by Men of Learning, and brought down to us from the Time of the A- poftles, thro'-all Ages of the Ghriftian Church ; they have ihewed us, that there was never any Church or Society of Cbriftians till of late, that held it unlawful to pray by a Common Form, they have told us, out of the Bibliotheca Pa- trum, that there was a Liturgy in the Church of Alexandria, which is attributed to St. Mark, who was the firft Bifhop there ; which thoJ inttrmixt with iome new and unwarrant- ed Additions, yet thole do not deiiroy the Antiquity of the Original. They have told us likewife, that St. James himfelf com- pofed a Liturgy, which he left to the Church of Jerufalem, of which he was alfo the firfi Bilhop ; this is affirmed by Sixtus Senenfts,^ and by the Fathers of the Third Council afTembled at Cenfiantinople under Juflinian the Younger, at a place in his Palace, called Truflo, about 680 Years after the Birth of Chrift ; and the like hath been fhewed us in reipedt to other Churches, who had their Liturgies enlarged by the Prayers of great Men, luch as St. Bafil, St. John Cbrifojlome, &c. in the Eaflern Churches. Tis enough for me to fhew, that here in England, in the time of the Saxons, the Council of Clove/hoe was held under Cuthbert, Archbifhop of Tork, by which Council the Prkfts were required to learn the Lord's-Prayer in Englifk, and by the (h) Canons of King Edgar and Egbert, they were en- Tfc' if) Can.Egb. a. Can. |dg. 4 j. joined 1 88 Cammoit-Pwper: joined conftantly to ufe it in their Churches ; and it will not be denied, that in the Roman Church there were always Forms of Prayer, as may be feen in their Mijfals, Breviaries, Ri- tuals, Pontificals, Manuals, Rofaries, &c. But the Common-Prayers which are now ufed in the Church of England, were by the feveral Gradations following, thus eftabhflied. Thofe Offices mentioned before, and which were ufed in the Church of Rome, being fo many, and every Religious Or- der having likewife fome peculiar Rites and Services adapted to themielves, and to be performed on the Saints Days which belonged to their reipecYive Orders ; it was a very difficult thing to imderftandin what manner to officiate. In the SouthVzxX. of England the Offices were after the Ufe of Strum ; in the North they were after the Ufe of York ; in Southmaies after the Ufe of Hereford ; and mNorthwales, thofe after the Ufe of Bbngor, were generally received ; and in Lincoln, and other Places, there were proper Offices appointed to be ufed ; and when any Prelate was made a Saint, there were Collects, and particular Forms, ufed for him. in his Diocefs. Therefore, Anno 2 Ed. 6. the Protettor, and the reft of the King's Council thought it expedient, that there fhould be one uniform Order of publick Worfhip throughout the Kingdom : and in order to prepare and etmpofe fuch a Form, there was a Committee of particular Divines appointed, {viz,.) the Two Archbifhops, Sixteen other Provincial Bifhops, and Six Doctors of Divinity to examine and reform all the old Offices of the Church. Theie Perfonsmet at Windfor-Cajile, and the firft thing they did, was to examine the manner of Adminiftration of the Eucharift, of which I fhall give an Account in another place, under the Title Sacrament. But to proceed, The Committee, upon Examination of thefe Officis, found them fo Superftitious, that they rather refem- bled the Rites of Heathens than Chriftians; and there- upon they rejected every thing which was not warranted by Scripture, and reduced other Matters to their primitive Purity. In the compiling this Book, the Reformers began with the Morning and Evening Prayers, which they put in the fame Form we now have, only the Confefllon of our Sins, and the general Abfolution to Penitents were omitted. The Communion Service was likewife the fame as 'tis now, only the Ten Commandments were not read in that Service. And And becaufe Religion was clouded with many Ceremo- nies, therefore they rejected all fiich which had been abuled by Superftition, and retained thofe which were decent, and which tended to move our ArTe&ions by fome apt and good Significations ; and they prefixed a Preface concerning fiich Ceremonies, which is the lame now printed before the Book. Thcfe Alterations in the pubfick Offices of Worfhip, crea- ted great Heats amongft the People, which were excited chiefly from the Pulpit ; and therefore Preaching was prohi- bited for a time, by any Perfon not Licenfed by the King, or his Council, or by the Archbifhop Cranmer. Afterwards the major part of the faid Commitee framed a Bill which they brought into the (i) Houle of Peers on the $th Day of December, and which lay before them a long while ; for Eight of the Sixteen Bifhops, who were of the Committee, and Three Temporal Lords, protected againft it, by which they 'ftiew'd their Unwillingnefs to make anyAltera- tions , but they were refolved to obey when it came to be ena&ed into a Law. The Preamble of this Bill was. That there had been dif- ferent Forms of Prayer and Service, .&c. that the moft ef- fectual Endeavours could not divert the People from their old Cuftoms j and that therefore there might be an uniform way of Service, &c. the King, by the Advice of the Lord Protettor, and his Council, had appointed the Archbifhop of Canter- bury, and other Learned Bifhops and Divines (having re- fped to the molt pure Chriftian Religion, and to the Pra- &ifeof the Primitive Churches) to make one convenient Or- ' der and Rite of Common- Prayer, which they had done by the Affifiance of the Holy Ghoft, and delivered to the King, in a Book Entituled, The Book of Common-Prayer and Adminiftra- tion of Sacraments, &c. wherefore the Parliament considering the faid Book, mod humbly thanked the King for his Care, and did ena6t, that the faid Form of Common-Prayer, and no other, ihouid be ufed thro' England, at Whitfontldi following. But becaufe fome things were contained in that Book, which (hewed a Compliance to the Superltitious Humours of thofe Times *, and fome Exceptions being made to it jpy pre- cifeMen at Home, and by Calvin abroad, therefore two Years afterwards it was reviewed, in which Martin Bucer was con- fulted, and fome Alterations being made in it, which con- lifted in adding fome things, and leaving out others. ■ 190 Commoit-pjaper; A general ConfcfRon of Sins to the Daity Service. The Additions I A general Abfolution to the Penitent, were j rfc. \ The Communion to begin with reading the . Ten Commandments, the People Knee- ling. A Rubrick concerning the Pofture of Kneeling, which was afterwards by the Statute 3 Eliz,. ordered to be left our, but is now again explained as it was Anno 2 Ed. 6. The Ufe of Oil in Confirmation and extreme Unclion ; Prayers for Souls depar- Left out ^ ted, and what tended to a Belief of the * Corporeal Prefcnce of Chrift, in the Con- f. fecration of the Eucharift. This was approved by Martin Btieer, who was of Opi- nion, that every thing was clearly then, according to the Scripture ; and Ayloffe, the Scotch Divine, tranQated it into Latin for his own uie. Afterwards, Anno 5 & 6- Ed. 6. a Bill was brought into the Houfc of Peers to enjoin Conformity to this new Book, with thole Additions and Alterations, and by which the People were enjoined to come to Prayers upon pain of Church Cenfures, which Bill palled into a Law in the fame Year. But upon the Death of that King, which happened foon. after, the Common- Prayers were laid afide, and fome of thofe Divines, who had been the chief Promoters of it, fled be- yond Sea, where at Frankford there happened a Contention amongfl them ; for fome were of Opinion, that they fhould accomodate the Worfhip of God conformable to the Ufage of the People there, and nearer to the Forms of Geneva, fo that all might be united in one Way of Worfhip. Whitt'mgham and Knox engaged in this Affair, and procu- red their Friend John Calvin, (who was very famous in thofe Parts) to write againit the Englijh Service, which he did, and declared, that in it there were many tokrabiles ineptia, as he called them. But this Invictive being not fhirp enough, for it feemstho> there are ineptU in it, yet they were tolerahiks , therefore he was required to declare his Opinion a little plainer, which he did, by calling the Forms of Prayer in that Book, Reli- qui as Papiftic£ farts ; when the fame Man, not above Eight Years before, had wrote to the Protellor, to encourage him m the Reformation 5 and in that very Year, when the Cow- tfommQit'Piaper* 191 mon-Prayer Book was firft compiled, and 'tis very probable ' that he hadfeen it ; for in his Letter he approved Set Forms of Prayer, and had not then found out thofe ineptias & faces, which afterwards appeared to him. Some other of our Divines at Franlford were of Opinion, that (Ince they had ufed that Form in England, and fome Peo- ple were then under Profccution for it there ; foi that reafon they ought to ufeit (till, othcrwifeit would be a Contempt to them and their Sufferings. But upon the Death of Queen Mary, it was again appoin- ted by 1 ElU. to be ufed by every Minilter, however not as it was before ; for having been reviewed by Mr. Whitbeaj, Chaplein to the Queen's Mother ; by Dot} or Parker after- wards, Archbifhopof Canterbury, Dotlor Grinddll afterwards, Bifhop of London; Dotlor Cox afterwards, Bifhop of Ely; Dotlor Pilkington, afterwards Bifhop of Durham; Dotlor May, Dean of St. Pauls ^ who was one of the former Committee ; Dotlor Bill, Provoft of Eaton, and Sir Thomas Smith ; fome Additions were made to it, Certain LefTons for every Sunday in the Year ; fome Alterations, in the Liturgy; Two Sentences added in Vh 2 the ^elu7erv °f tne Sacrament, intimating to the " Communicants, that Chrift is not corporeally pre- fent in the Elements, &c. The Form of making Bifhops, Priefts and Deacons, was likewife added. There were fome Alterations made in the Reign of King James, but thofe were in the Rubrick only. And as for the Additions of Thankfgivings, at the End of the Litany, the Prayer for the Queen and Royal Family, which were not in the laft Book ; thofe were added by the Authority of that King's CommiiTion, and are ftillin Force by vertueof ^Proclamation; and fo are the Prayers for the inauguration of our Kings and Queens, and for the Gttnpow- der-Treafon. This Book being thus compofed, was at firft thought to be adapted to thofe common Principles of Chriftianity, and was then fo generally efteemed, that Parpatio, Abbot of S\ Saviour's, who was fent hither by Pins the qth, with Let- ters to the Queen ; had Authority from the faid Pope, to offer it fhould be confirmed by him ; and for the firft Ten Years of that Queen's Reign, the PapiRs did conltantly attend the Service in our Churches. This we have from no lefs Authority than my Lord Coh himfelf, who in his Speech againft Gamett, condemned for the Gunpowder-Treafon, told him, that in the beginning, of the i9^ <£ommoit-Pwe* the Queen's. Reign, he had obferved Bedingfeild, Cornwallis] and feveral others of that Communion, constantly to come to our Churches. 'Tistrue, he was then but a very young Man; but the Queen, herfelf, tells us the fame tiling in her Inductions to Secretary Walfwgbam, (viz,.) that the chief of the Party in the beginning of her Reign, did frequently come to Divine Service in the Churches. But when Pope Pius yh had by his Mdepofed the Queen? then the Roman Catholkks did generally withdraw from our Churches, and have fo continued cverfmcc. * And as the Papifts conformed themfelves to this Worihip, fo our North- Br it dn s had it in more Reverence formerly than of late ; for Buchanan himfelf tells us, that they entered into a general and publickSubfcriptiontoobferve ChUm & ritus Re- ligionis cum Anglia Communes* Upon the whole Matter," the Book is now eftabliihed by Law, and feveral Punifhmems are to be inflicted, both on Minitters and others, for not ufingor depraving it. If a Minifter is convicted by Verdict, or Confeffion, or noto- rious Evidence of the Fact of refufing to uje it, or u/ing any other Form, or depraving it. " The firft Offence in fuch Cafe, is For- feiture to the Queen, which of his Bene- fices fhe ilia 11 chufe, and this is by Sta- tute 2 & 3 Ed. 6. If beneficed, "< But by Statute i Eliz,. 2. he lofes all I his Spiritual Livings for a Year, and by both he is to be committed for fix Months, viz,, by the firft Statute without Bail, and [_ by the other indefinitely. r i. Offence, Imprifonment for fix Months, If not beneficed, ^ K^A6 £atutc ! ***■ '*. 2' f°r ' J twelve Months. C 2. Offence, Imprifonment for Life. If any other Perfon fhall be convidted fas aforefaid) by Songs, or other wife to have depr aved ir, or to procure a Mini- fter to fay any other Form, or to interrupt him to fay that Service. Firft Offence. Per Statute 2&^ Ed. 6. he Forfeits Ten Pound to the Queen ; and if not paid within fix Weeks af- ter Conviction, then to be committed for three Months; but by the Statute i Eliz,. he forfeits One hundred Marks to the Queeri, and if not paid as abovelaidj (hall, inftead thereof, be impriioned for a Year. Second CommoiHSjaper. 193 Second Offence. Per Statute i & 3 Ed, 6, forfeits 20/. to the Queen, and if not paid, {m fnpra) Imprifonment for fix Months without Bail j but by Statute 1 EiU. forfeits 400 Marks to the Queen ; and if not paid, (utfapra) Iinprifon- ment for a Year. Third Offence. Forfeits all his Goods and Chattels, and rriuft be be committed during Life. Any Perfon convicted at the Aflizes, or Sefllons, to have wittingly beard, or to have been prefent at any other Form of Com won- Prayer , than what is expreMed in the Statute 5 & 6 Ed. 6. cap. I. Firft Offence. Imprifonment for 0.x Months without Bail", Second Offence. Imprifonment for a Twelvemonth. Third Offence. Imprifonment for Life. Juftices of Oyer and Terminer of Affizjc, and Mayors, and Head Officers of Corporations, have power to hear and de- termine Offences again ft the Statute 2^3 Ed. 6. the Profe- cution mutt be at the next Affizes after the Offence commit- ted ; but per Statute 23 Eliz,.cap. 1. fche Juftices in Seffions have the like Power; but the Profecution mutt be within a Year and a Day after the Offence. No Form of Prayer fhall be ufed in any publick Place, other than according to the faid Book ; and every (0 In- cumbent, on a Benefice with Cure, tho* he keeps- a Curate, is bound once in a Month to read the Service, not having a lawful Impediment, to be allowed by the Bifhop ,• if he neg- lects, he forfeits, for every Offence, Five Pound to the Ufe of the Poor ; the Conviction mutt be before two Juftices, by his own Confeffion, or Oath of Two Witnefles. If the Five Pound is not paid within Ten Days after the Conviction, then the Churchwardens, or Over jeers of the Poor, may by a Warrant from Two Juftices of the Peace, levie it by Diftrefs and Sale oi the Offender's Goods. m Befides, upon his Induction, he mud, within Two Months afterwards, read the faid Service of the Church, appointed for that Day, and likewife declare his unfeigned Aflent and Confent, to all the Matters and Things therein contained. m And that every Parifti may be provided with this Book, "'tis enjoined by the (I) Canon, that the Churchwardens, or Queft-men of every Church or Chappel, fhall, at the Charge of^the Parifh, provide the Book of Common- Prayer. ik) 1? & 14. Car, 2 cap, 4, (I) Can, 8c. O Conimunion* i94 Commuvion-Table. T T may not be improper to mention fome things conccrn- *• ing the Change o, Altars for Communion-Tables. Under the Law, Altars were built for the Sacrifices, and it fcems reafonabk, that when the Ufe of the Thing ceafed, the Thing it felf fhould ceafe ; that is, when Sacrifices were abolifhed, that there lliould be no farther Uie of Altars, efpecialiy fince our Saviour inftituted the Sacrament, not at an Altar, but at a Table. 'Tis true, theChriilians called the Table an Altar, becaufe they believed the Euchariji to be a Sacrifice in a double refpecl, that is, asit was a Sacrifice of Praife ; and hkewifepf com- memorating that voluntary Offering which Chriff made of hirnfelf on the Crofs ; but it was ttill zTable made of Wood, and in the Form of Tables now in ufe among us ; becaufe we find, that when People fled to the Sanctuary of the Church, they hid tbemfelves under thofe Tables for the better leaning their Perfons. Afterwards, when there was a general Belief of an expia- tory Sacrifice in the Majs, the Tables were built a little more refembling the Forms of Altars, and then they were proper- ly called by that Name. But Anno $ Ed. 6. it was thought, that the Form of a Ta- ble being more agreeable to the Primitive Uie of the Sacra- ment, it might be fome means to reduce the People ftoru the Superltition of the Mais ; and therefore, to prevent thofe Heats andDifbrders which had happened fince the beginning of the Reformation, concerning the Form, whether of an Altar or Table, the Government thought it expedient that it ihould be in the Form of a Table. This was begun by Do ft or Ridley, then Bifiop.of London, who in his Vifitatipn in that Year, atnongft many other In- junctions, gave this for one (tflfc.1 whereas in federal Places fome ufe the Lord's Board after the Form of a Table, and fome of an Altar , whereby Diviiions may ante atnongft the Unlearned ; and for that, the Form of a Table may trun the Simple from the old Superftttious Opinions of the Popi/h Mafs, and to the right Ufe of the Lord's Supper-, there- fore he exhorted the Curates and Churchwardens to ere6l and fet up the Lord's Board after the Form of an honeft Table, de# cently covered in fuch place of the Coir or Chancel, as (hall be thought meft meet, and to take down all other by Altars, as hs called them. What Commutation fo? ]j£ennatice* 19 s What was done by this good Bifhop, was afterwards ap~ proved by the King in Council, and put in Pradtifc all over England, And fince that time, 'tis by the O) Eccle/iafical Canons, appointed, that a convenient and decent Table be provided, kept, and repaired in every Church, and covered with Sillc or other decent Stuff, thought meet for that purpofe by the Ordinary ; and when the Sacrament is adminilked, that it be covered with a fair Linnen Cloth, and at that time to be placed either in the Church or Chancel, that the Minifter may be the more eafily heard by the Communicants, and where they may more conveniently communicate. Commutation for Ve nuance. t)K7HEN Chriftians were perfecuted by Heathens, fome */ of them became Apoftates; but (till they coiitinu<.'d,ro aflbciate themielves with thofe from whom they had \z\ which gave a general Scandal to the reft, who were of Itri- 6ter I ives, and purer Morals 5 therefore it was thought ne- ceilary, tha: for publkk Sins there fhould be open and pub- lick Coi^feflions, and Pennance was likewife enjoined by the Canons, which being performed, the Penitent was re-admit- ted to the Church. It was the chief Bufinefs of thofe Councils, which were afiembled in the fyh and yh Centuries, to conliilt about the Regulation of thefe penitentiary Canons; for they were fa many, and fo difficult to be underflood, that few could at- tain the Knowledge of them ; and therefore, in feveral Churches, there were peeuliar Peibns called Penitentiary Priejls? yvhofe Bufinefs was only to attend thefe Services; and by this means they, and only they, were very expert in the Rules and Methods of Pennance. But there was always a favourable Diftinc~tion made by thefe Preifts, between thofe who voluntarily confefcA their Sins, and. thole who were brought in by the Cenfurts of the'Churcb ; and this made feveral come to Confetfion freely, which was ftill made in a publick manner. And becaufe fome of the Offences confelTed were Capital, therefore about the End of the yh Centaury, it was thought more expedient to have fecret ConfefTw.s made in Monaiie- ries, or in any other private Place, winch the penitentiary (m) Cm 5a, 0 2 ftSctf 1 96 Commutatf on fa? pemtance; Prieft fhould appoint, who was always a Fryar, for the Se- cular Clergy had no manner of Experience in thefe Affairs ; and thofe Fryars had fo managed the Bufinefs, that the Peo- ple were made to believe, there could be no Abfolution in iome Particular Cafes^ without a Difpenfation from the Pope, which they had always ready, and for which they were paid. But there was an unlucky Accident at (n) Constantinople, which defeated all fecret Confeflion there; for it feems, tho' the Confeflion was in private, yet the. Penitent was bound to publifh fuch of his fecret Sins as the Fryar fhould appoint; and there being a Woman at that time under a Courfe of Pennance, whether by Miftake of the Prieft, or her own, it doth not appear; but fhe publickly confefted, that (lie had committed Adultery with a Deacon of that Church, which gave fo great a Scandal, that the Bifhop broke the Cuftom there ; however, we know it was retained long after, and even to this Day, in other Place?. About the End of the Sth Century, Commutation for Pennance was introduced ; and this was either for Services to be done to the Church, or for Money to be paid to the Prieft. The Services for which Pennance was commuted, were either Vocal Prayers, or fo many Pater Nosier s to be laid, within a limitted time, or fo many MalTes ; but when the Pope had depofed any Prince, then all the Methods and Rules of Pen- nance were difpenfed withal, to fuch who fhould Fight under the Crofs, againft that Prince. But in a little time all thofe things were laid afide for Mo- ney, which was never refuled at firft from the Rich ; for it was then, and is ftill, accounted the belt Commutation that can be had for Pennance, This we find in Doclor Barters Cafe, which is imper- fectly reported by 0) Serjeant Rdls, in Scraps of Englifband French ; but probably it was, becaufe his Pocket was pick'd of his Notes (as he tells us) coming from the Star-Chamber, but it was thus. The Doctor was Official in the Diocefs of Oxon, and the Regifter of his Court libelled againft him \n the Star-Chamber, for taking Commutation before any Pennance wa3 actually en- joined in the Prefcnce of that Regifter, and made an Ac* of Court ; and for that the Money was taken in his Chamber, which he kept, and did not apply to charitable ufes as he dughtc (*) jeerar I-Iift, Lib. 5. cap'- 19, (?) 2 Rolls Rep; 384,' The Commutation fo? pemiance* 197 The Proof was, that when an Offender was before the Doctor in private , he asked him whether he knew a thing called Commutation , the Pcrfon, replied, he did not ; then the Dodtor informed him, it was, that one good Turn required another ; this being eafily apprehended, he of- fererd the Dodtor Ten Pound, which he refufed to receive in Perfon ; fo the Money was given to his Servant, who left it on the Doctor's Table. My Lord Ho fart, andthereftof the Judges, would not cen- fure the Dodtor, becauie this was no pofitive Proof of his taking the Money, tho' it was walking very near the Brink of falling, and receiving Money not with a Full , but trem- bling Hand. But the chief Juftice thought it convenient, both for the Church, and for the whole Nation ; that forhe Order (hould be made in how longtime the Money might be kept before it was employed in Charity ; and one of the Judges was of Opinion, that in iome Cafes the Money might be taken not only when the Court was not fitting, but out of the Diocefs • as for inftance: Thofe Cafes which AxetContemhfaJurifdWo- nis, muft be determined in open Court ; and in fuch Cafe there fhall be no Commutation without the confent of the Pro- fecutor ; but in Cafes Voluntary Jurifdiclionis, as where the Enquiry is Ex officio, there 'tis other wife. The Archbifhop, at that time, advifed with the Civilians • and from them, and by his own Experience, lie tells us, that Commutation agreed with the Ecclefiattical Canons, that it was likewife juftified by the common Law, in that I believe he was miftaken ; but he was ri^ht in affirming, that it was juftified by the Statute Grcttmfpefte agatis, by which the Tem- poral Judges are advifed to take care how they punifh thofe who hold Pleas in Spiritual Courts, for Fornication, Adul- tery, &c. for which fometi mesa corporal, and at other times a pecuniary Punifhment is inflicted ; by which Words, my (p) Lord Coke tells us, Commutation is meant ; and fo it 'is in. the Statute, called Articnli Cleri, by which 'tis provided, that if a Prelate enjoin corporal Pennance, and the Party after- wards commutes for Money, 'tis recoverable in the Spiritual Court, and no Prohibition will lie in fuch Cafea Q 3. $Dm i?8 A Compofition Real for Tythes. Red Compofition is, where the incumbent, together with the Patron and Ordinary, by Deed executed under their Hands and Seals, do agree, that fuch Lands fhall be dis- charged of Tythes, which are mentioned in the Deed, pay- ing iome annual Payment, or doing fomething for the Pro- fit v r xA>dvantage of theParfon ; and this is a legal Exemp- fJoiM.nrvi Payment of Tythes, if made before the Statute 13 Eliv. cap. 10. by which all Eftates made of Tythes, oitcr than for 21 Years, cr three lives from the making there- of Cjv. arc made void. Some Imlances we have of this Nature in our Books, (viz**) as where an (q) Abbot was fei zed of a Farm, fituate within a Prebend, and he and the Prebendary made a real Coinpoiltion in the Reign of E5, that he and his Succef- fors 1I1 011 Id be for ever difcharged of Tythes of fo much of the faid Farm as they ufed themfelves, paying to the Preben- dary Five Marks per Annum. About 100 Years afterwards, there was another Compo- fition made between an Abbot and a Prebendary of the fame Prebend, reciting the former Compofition 5 and that it (hould be at the Election of the Prebendary, to take the Tythes in kind, arifmg out of the whole Farm ; and not only out of thofe Lands which the Abbot manured himfelf, or to have the Five Marks. - The Frebcnd afterwards came to the Crown, and it was field, that the fir ft Competition was good , but the fecond was not; becaufe, fin ce the Prebend came to the Crown, there could be no "Election made according to that Compofition,, The Learned Bifhop of Worcefter, hath made a Queftion, whether a Redt Compofition is binding, if made for a thing within time of Memorv ; as for Tythe of Hops, which were cot ufed in England before the Reign of H. 8 ; but he g'ves no fatisfac~iory Anlvver to the Queftion, However, I can fee no reafon if fuch a Compofition was made before the Statute 13 Eliz,. but that it fhould be binding. Tis true, a Man cannot prefcribe for a (r) Modus in fuch Cafe, becaufe 'tis the Nature of a Prefcription to be imme- morial j and the ftrft ufe of Hops was within time of Me- mory. ri} Hardres 381. (r) Sid. , 443, But CTonipofitf on Eeal fox Cpt&ea. 1 99 But it was from thefe Compofitions that molt Prcfcriptions, De ntodo deciwandi, did at fit It arife ; tlio" tis probable, that fome of them began, and were continued by the Negligence of the Clergy themfelves. The Canonitts have made fome Limitations in this Cafe; but firft they lay it down for a Rule, that Cuitom fhall not prevail for the Payment of lelsthan a tenth Part ; but then they fay, this mufi not be underftood where it relates to the Payment of perfonal Tythes, which arofe purely by the La- bour or Art of Men • for in filch Cafe the Clergy may ac- quiefTe with a good Confcience, under a Cuftom, to pay lefs than the real Value of the tenth Part of the clear Gains; for they accept £^r-Ofterings of the People, which are a kind of Compofitiou for Perioral Tythes. Befides, Perfonal Tythes are founded upon the fame Laws as ail other Tythes are, now by the Statute 2 Ed. 6. cap. 13. predial and mixt Tythes are reduced to fnch a Cufiomary Pay- ment, as had been ufed Forty Years before the making that A6t, where, by the Words Cuftomary Payment, fornething lefs is intended than the leal Value of the tenth Part ; and if fuch a Payment is eftablifhtd by Law, for thole Tythes, it may alfobegood for Perfonal Tythes. 3Tis true/ the Canonists would not feemingly allow lefs than the tenth Part in any Tythes ; but to extenuate the Mat- ter, they did, by Prcvintal Conftitutions, fet a lefs Value upon things cut of which the Tythes were to arife, than they were really worth ; as for Inttance: Anno 7 H. 7. there was but a half Penny paid for a Lamb of a Year old, that being accounted the Tenth of the Value of a Lamb of that Age, which Payment was allowed to be good. The Bifhop of Worcefter feems to incline, that this rnuft be grounded upon fome real Compofition, becauie a Lamb of a Year old was worth more than five Pence in thofe Days; but it may as well be grounded upon letting a lefs Value on the thing it felf, tho* I confefs this is no very good Infiance of it ; for 'tis probable a Lamb of a Year old was not worth more than five Pence at that time ; becaufe I find that Anno 25//. 8. which was long afterwards, the Price of a fat Lamb was but a Shilling. Thefe real Compofitions are dimnguifhed from Perfonal Contrails ; for tho'the one have been" always allowed to be a goodDifcharge for the full Tythes, yet the other are not. Now that Compofition, which is called a Per fond Contrail, is only an Agreement between the Parfon and the Pari- fcionicrsj to payfo much in Lieu of Tythes; and tho* fuch 2bo Confirmation of )5i(Ijop& an Agreement is confirmed by the Ordinary ; yet that doth not make it a (f) Re A Cowpofirion, becau'le he ought to be a Party to the Deed ; and his confirming it afterwards, doth not make him fo, neither doth it alter the Nature of the A- greement. Such a Perfonal Agreement was held good, (t) Anno ^.Jac.i. if it was for Years, tho' only verbal : But in the fame King's Reign , about Nine Years afterwards (u ) it was held otherwife ; that iuch a verbal' Agreement is neither good, or binding to the Parfon, or his Succeffors, if intended to pafs a (x) Right ; but 'tis good to bar the Parfon from an Action of Debt, upon the Statute 2 Ed. 6. for not fetting out the Tythes. But now, fince the Statute 1 3 Elk,, cap. 10. 'tis held, that aio real Compofition can be good to bind the SuccefTor ; be- caufe, by the Statute, the Grants of Ecclefiaftical Perfons are retrained to one and twenty Years, or three Lives. Confirmation of Leafes ; See in Title Leafes. Confirmation of Bijhops. HpHIS is done by a long and formal Procefs, of which ■*- I fhall give the Reader a (hort Account. After the Dean and Chapter elected the Parfon re- commended to them by the Queen, to be the fucceedirig Bi- itiop to a vacant See ; and this Election is certified to the Queen, and to the Archbifhop of that Province ; fhe grants her Royal Affent under her Great Seal, which is exhibited to the Archbifnop, requiring him to confirm the Election, upon \vh ich he fubfer ibes fiat Confirmatio. ' The Archbifhop thereupon ilTues forth a Commiffion un- der his Epifcopai Seal, directed to the yicar-General, to per- form every thing requifite tofuch Confirmation. The Vicar-General iffues forth a general Citation for all thofe to appear, who have any thing to offer againtt this Election ; which Citation being returned, the Prodior for the Dean and Chapter exhibites the Queen's Affent to the Ele- ction, and her Commiflion to the Archbifhop to confirm it, which the Vicar-General reading, accepts it. ffl March */. tO Yd. 54. 00 Hob. 176. (*) R*ym. 14. Confirmation of Xtfljopg, sox Then the Proctor exhi bites the Proxy for the Dean and Chapter, and prefents the elected Bilhop to the Vicar-Gene- ral, returns the Citation, and defires that the Oppofcrs may be thrice publickly called ; which being done, and none appearing, he defires the Vicar-General to proceed, which is ordered accordingly. Then the Proctor exhibites a fummary Petition, containing the whole Proceedings and Defires, that a Time may be ap- pointed for him to prove it, which the Vicar-General decrees. Then he again exhibits the Alien t of the Queen and of the Bifhop, and the Certificate of the Election to the Arch- bifhop, defiring a time for a final Election, which is likewifc decreed. Then the Proctor once more defires, that all Oppofersmay be called ; which done, and none appearing, they are pro- nounced Contumacesy and a Decree is then made to proceed to Sentence. ' Then the Bifhop having taken the Oaths againft Simony of Supremacy, and of Canonical Obedience ; the Sentence is read and fubicribed by the Vicar-General, by which the Election is confirmed, and decreed to be good. And till this Aft of Confirmation is performed, theBifhop's Eject may be rejected, becaufe there may be fome Reafons given, why he fhould not be made a Bifhop ; and for that purpofe thofe Citations above-mentioned are made for any Man to come in, who hath juft reaibn to oppofe it. After (y) Confirmation the Power of the Guardians of the Spiritualties ceafeth ; and if a Writ is directed Epifcopo elects & confirmato 'tis good ; and the Queen may ex Gratia after fuch Confirmation, and before Confecration grant the Ten*- poralties to the Bifhop, thus elected and confirmed. But if the Bifhop of one Diocefs is tranOated to another there is no Occafion of a new Confirmation. Jufiice Doderidge, in his Argument of Evans and Ajcue\ W Cafe, tells us, there is a Spiritual Marriage between the Bifhop and his Church, which is begun by Election, con- tracted by Confirmation, and confummated by Confecra- tion ; and that the Reftitution of the Temporalties is like conducting the Man to the Woman, fo that he is not a com- pieat Bi(h op by Confirmation ; he hath only Pote/tatem Ju- rifdittionis, for he may certifie an Excommunication, he may give Institution ; and this appears by the Year- Book 22 Ed, 3, Plito 25. where the Cafe was thus : ..»■■■ - ■ — »j' ■■■' "■ " ■— w ■ O; Dyer no, (*) Pate. 47?, The aox Contectatton of 15iff)Op0, The Plaintiff had recovered, in a Writ of Right of Ad- vowfon, and had a Writ directed to the Bifliop of Norwich, Eltflo & Confirmato, to admit his Clerk ; the Bifhop refufed, and thereupon another Writ of Qttare non admi/ic ifTued a- gainlt him, reciting the Recovery, and the former WTrit di- rected ~Epo eletlo & Confirmato, and this was held to be good by one of the Judges, who was angry with his Brethren for being of a contrary Opinion, vU. that it ought to be tunc eletlo & Confirmato, which (hews, that if the Writ had been right, a Bifhop ele6ted and confirmed, might have granted Inltitution. Consecration of Bifloops. AFTER Confirmation, the next thingtobedone hConfecration, and this is done by'ieparatins; the Perfon to the Holy Office of a Bifhop, by Impofition of Hands and Prayer, 'tis ufually performed by the Archbiihop : but when an Archbiihop is to beconfecrated, it muftbe done by an Archbiihop, a;,d two other Bifhops, according to the 4th Canon in the firft Nkene Council, or e lie by Four Bifhops; and this is required by the Statute 25 H. 8. cap. 20. which is agreeable to that Anfwer Pope Gregory gave to St. Auftin, asking him, whether a Bi- fhop might be ordained without the Prefence of other Bi- fhops, if by reafon of any great Diftance they could not be prefent, who pofitively affirmed it could not be done ; but that at the Ordination of a Bifhop there ought to be Three or Four other Bifhops affifting. After Confecration, the Bilhop is complete, as well in relation to Spiritualties as Temporaries ; and by the Civil Law, this was held effential to the Office and Dignity of a Bifhop, 'tis an indelible Charadier, of which be can never afterwards be deprived, tho' the Execution of Spiritual Jurif- diclion, and all the Profits of hisBifhoprick fhould be taken away : He hath Poteftatem ordinis, for he may confer Orders, and confecrate Churches, and hath iuch an abfolute Right to theTomporalties, that tho' they be granted to him, tug Gratia, immediately upon Confirmation, yet he cannot fue for them till after Confecration. But when a Bifhop istranflated, there is no Occafion of a new Confecration. As to the particular manner of Confecration, 'tis prefcri- bed in the Book of Common- Prayer, which is eftabliuYd by law, tho'' Bifhop Bonner objected ar^aintt Archbifhop Parhrt V Con-' Contecratton of O5ifl[)Op0. 203 Confecration, that the very Office of Con fee-ration had no legal Authority; for he infifted, that the Common- Prayer-Book was cltablifhed by an Act of Parliament, Anno 5 & 6 Ed. 6. which Act was repealed by Queen Mary , and that Book ex- preQy condemned, Tis true, Queen Elizabeth enacted again King Edward's Common- Prayer- Book, and repealed that Law made by hof Sifter ; but the Office of Confecration was not exprtfly named in this laft Act of Repeal, and therefore it could not be re- vived, unlefs it had been particularly named; and if fo, the Objection is, that a Confecration performed by that Book, is not according to Law. But this will receive a plain Anfwer, for the Office of Confecration was made part of the Common- Prayer-Book, by the Statute 5 Ed. 6. and when that was re-ena£ted after a Repeal, there was no Occafion to mention it diftinctly, be- caufe it was part of the Common- Prayer- Book before ; however it was declared by a fubfequent Parliament, that the Office of Ordination was confirmed as part of the Common- Prayer- Book , and then they declared it to be good ; which is likewife de- clared fo to be, by the %6tb Article of our Religion. And here I cannot but take Notice of the Confecration of Archbifhop Parker, which the Adverfaries of the Church of England affirm to be irregular,both as to the Place where it was done, which they fay was at the Naggs Head Tavern in Cheapfide, when it ought to have been at fome Church or Chappel; and likewife as to the Manner of doing it, which they fay was by one of the Biiliops then prefent, who laid the Bible on his Head, and then pronounced thefe Word ; Take thou Authority, &c. when it ought to be done by Impofition of Hands and Prayer, accompanied with other Words, (vU.) Receive the Holy Gbolt. Tis farther objected, that Three of the Four Bifhops then prefent were only Bifhops Elect, and had no Sees; and that the other was a Suffragan ,• fo that if Archbifhop Parker's Con- fecration was not good ; all thofe who were confecrated by him were not Bifhops, becaufe he could not confer that Character upon others, which he had not himfelf. iThe Story hath long fince been confuted by Bifhop Bramhall, but 'tis fet in a clearer Light, by the Learned Bifhop of Sarum, which was thus : The Queen iflued forth her Warrant, directed to theBifhop of Landaffe ; to Do&or Scory Elect of Hereford, Doctor Barlow Elect of ChicheHer, Doctor Cover dale Elec-t of Excefler, and Do&or Hodgkins Suffragan of Bedford. All <2c6 Cott&ocatfotn But what was done there is in the Right of the Bifhcp himfelf, becaufe from the Sentences of thofe Judges there lies no Appeal to him, but to the Archbifhop of the Province in his Court of Arches, which is his Confiftory. Convocation. THIS is an Affembly of all the Clergy of England, either inPerfon, or by their Reprefentives, to confult of Ec- clefiaftical Affairs, and 'tis ufually in time of Parliament. It confifts of two Houfes, probably in Refemblance to our Two Houfes of Parliament ; in the Upper Houfe there are Twenty twoBiihops, of which the Archbifhop is Prell- dent, and thefe Perfonally fit in the Houfe of Peers ; the Inferior Clergy make the Lower Houfe of Convocation, and they are Reprelented by the Proctors which they elect, and do fit by thcmlelves ; and thefe confift of all the Deans' and Archdeacons of one Proctor for every Chapter, and two for the Clergy of every Diocef?, in all One hundred Sixty fix Di- vines tviz*) Twenty two Deans, Fifty four Archdeacons, Twenty four Prebendaries, and Forty four Proctors of the Diocelan Clergy ; they choofe their Prolocutor, and prefent him to the Archbifhops and Biihops of the Upper Houfe, in- timating to them, that they intend to deliver their Refolu- tiensby him to that Houfe • this is part of his Office ; and likewife he is to take care that the Members attend ; and he is alfo to collect their Debates and Votes ; and that this may be done without Interruption, both they and their Ser- vants have the fame Privileges of Protection, as the Lay-Mem- bers of Parliament have during the time of their Seffion. This Lower Houfe of Convocation were formerly called together by two diitinft Writs, of which I fhall give as clear and diftine-t an Account as I can. The firft was the King's Writ to the Bifhops of every Dio- cefs, fummening them to appear themfclves in Parliament, with this Claufe in it, (viz,,) Pr&munientes prior em & capita- lum Ecclefia Vejlra Archidiaconum tommq; Clerum Ve$r& Dio- cefeos, facientes quod iidem Prior & Archidiaconus in propriis Perfonis fttis diflttmq; capitulum per unttm idemq; Clems per dttos procaratores idoneos plenam & fuffirientem poftteftam* ab ipfis capi- mlo&clero habentes : flftna twbtfeum tntctflnt, motto omntbti* tunctbifcemab trattatttt* ojtinanu, $ factentu nobtfeum 9 cum cctc= rtgpiciattspjocmbu*; & aliisincolis regninoftri qualiter hujnf- modis periculis: & excogitatis malitiis obviandum : Tefie Rege Aptid Wengeham 30 dk Septembris^ &c* Inis Convocation^ 207 This is called the Parliamentary Writ, and the Proceedr ings on it were as follow, {viz,.) Upon the Receipt of itj the Bifhop fent his Mandate to theDean and Prior of his Ca- thedral, and likewife to the Archdeacon reciting this Writ to him, &c. and by this Mandate he commanded the laid Dean and Prior to appear in Perfon, and to warn the Chap- ter to fend one of their Body, and the Clergy of his Dioceis to fend two Proclors to reprefent them in Parliament. After the Receipt of this Mandate, the Dean^ Prior and Archdeacon certified the Bifhop what they had done in Obedience to it; in which Certificate the Bifhop's Mandate was recited, the Chapter alio met and deputed their Proxy by an Inftrument under their Common Seal, &c. which was always exhibited on the firftDay the Parliament late. Some have been of Opinion, that the Clergy, at that time, fate in Parliament, by vertue of this Premonitory Claufe in the Bifhop's Writ, and were a conftituent Part of it, and fo con- tinued till the Reign of H. 8. in whofe Reisn they fell un- der a Premunire, by fubmitting to Cardinal Wolfeys Le°;atine Power ; and that tho* the King pardoned the Fault, he would not reftore them to their former Place. Tis certain, that the Convocation Qa) Anno i Ed. 6. ap*- prenended, that they had a Right to fit in Parliament ; and therefore they petitioned the Archbifhop and Bifhops in tlie Upper Hcufe of Convocation, that they would intercede with that King, and the Protector to be reftored to the fame. This was attempted again by the Clergy, in the latter end of the Queen's Reign, and a Paper was offered to her, con- taining fevcrai Reafons to induce her to grant their Petition, which were to this EfTecl:, Becaufe the Clergy had formerly been thought very proper Perfonsto confult with the Laity about Civil Affairs/ as well as altogether about EccleGafhcal Matters, which werefeldom debated in Parliament, That there would be no Danger they fhould attempt any thing there concerning Religion, or again!* her Prerogative, be- caufe they were retrained by an Act in her Father's Reign, to make any Attempt in Matters of that Nature without her Licenfe. That it lid not appear why they were excluded the Houfe, but that it was probable it might be becaufe they were all guilty of a Premunire, &c. {a) B. H. R, 2 Y&, 47. That * ©3 Coatiocatt'oin < That they are (till fummoned by feveral Writs to the Bi« fhops, to alliit the King in Parliament. That both the Univerfities, and the Clergy, were in a worfe Condition than the Laity, who had their Representa- tives there; that it was not confident with the Wifdom of the Law, that any Subject fhould be bound by an A6t of Parliament to which he was not vertually confenting; and that fuch Acb were then made without the Privity or Con- tent of the Clergy, who being excluded the Houfe, Could not anfwer any Motions made there to their Prejudice. That rehiring them to the Parliament, would advance the Reputation of the Clergy, by whofe Dignity the Civil State was fupported ; and that it would be for the Honour of the Queen and her Memory, to leave fome of the Clergy in that Houfe.. to ftand up ibr that Government, which (he had eftablilned in Oppofition to any innovations of Popery orPuratinifm. And laftly, That itiwould recover the ancient Authority of that Houfe, to have Men of Religion and Learning reftorcd to them, inflead of Minors and Out-laws, who were in- ;urioufly crept into that honourable AiTembly, that the Rafh- nefs and Inadvertency of fuch Men might be counterpoifed by fober and difcreet Perions, efpecially confidering that a Cypher may promote an Unit to Ten, But thefe Reafons did not prevail with that Queen, there- fore it was endeavoured again in the next Reign, but ftill without Succefs ; and becaufe it hath been been lately attempt- ed, and (iill by vertue of this Premonitory Claufe I fhall endeavour to give a true Account of it. This Claule was firtt inferted in the (b) Bifhop's Writ, Anno 23 Ed. 1 . it was then a time of Invailon ; for the French King had iiirprized Gtfcony by Fraud, and had pro-* vided a Navy to invade this Kingdom ; this is recited in the Writitlelf; and our Hiftorians tells us, That they landed at Dover on the 8th Day of September, and burnt a great part of the Town, and killed an old Monk. The Clergy were then alTembled by this Premonitory Claufe, not to confult about any Ecclefiaftical Aftairs ; but as the Claufe kfelf import?, Ad obvUndnm hujufmodiperkulis & ex- excogitatis malitiis ; and this could not be done, but by repel- ling the Enemy with Force; and therefore they were fum- moned to aiTirtthe Crown, by granting a Supply out of thek own Eftates, to carry on a War againft France. (1) h Ed. Merabran. |, Porfo, - . ? This (Contoocatfoni- 109 This being the firit occafion of the prenmnienks^ it was continued in that King's Reign tho' not coniiantly ; but when-ever the Clergy met by vertue of this Claufe they were a pure Parliamentary AfTembly, they were a State Conven- tion, and not a Church Synod, and the intent of their meet- ing was to confuk about their Civil Rights, to have their Grievances redreiTed, and to confider what proportion they fhould contribute out o[ their Eliatcs towards the fupport of ihe Government, and therefore it was neceiTary that they fhould be aiTembled with the Parliament and end with r. But the Clergy in the next Reign apprehended that they had 110 manner of obligation to obey this Lay-Summons, tho3 from a King, and ibme of them refilled to attend the Par- liament upon fuch Summons, therefore Archbifhop Win; Mfea having an attending Power over Ed. 2. who was a weak Prince, attempted to difcharged them from it, and fo far prevailed, that at the fame time the King lent this Parlia- mentary Writ to the Bifhops ; he fent another to the Arch- bifhop to fummOn all his provincial Bifhops to the Convoca- tion ; the form of which Writ is printed by (a) Mr. Heyliny and by the Bifhop of Sarum, and is thus : Regina, &c. Revere ndifftmo in Chrijlo patri Cantuaricn. Archie- pijeopo Wins AnglU primati, &c. Salutem quibujdam arduis & urgentibm negotiis nos defenftonem & Jecuritatem Ec- c\eft& Anglic ana, ac pacem tranquility em & bonum publicum & defen/ionemregni noftri & fubditorum nojirorum ejufdem concerned tibws vobis in fide & dileElione quibm nobis tenemini rogando man" damw quatenas premiffis debito intuitu attends & ponder atis univcr- fos & fingnlos Epifcopos veftr H. 3. cap. 19. (viz,.) that being ai- fembled in Convocation they are not to Confer together to make any Canons without the King's Licenfe, and if upon iuch Licenfe and Conference they agree on any new Canons, they cannot execute the fame without the like Licenfe ; nay if the King gives his content they cannot be executed but un- der thefe Limitations. (1.) Such Canons muft not be againft the Queen's Pre- rogative. (2.) Nor againlt any Statute, or againft the Common Law. (3.) Nor againft the Cultoms of the Realm. Courts Ecclefiajlical. IN the time of our Saxon Anceftors, one of the principal In* -*• habitants of the Hundred, which was called the Alderman, together with the Free-holders thereof, were Judges of the Hundred Court which was (hen called Cent mat a, becaufe it had Jurifdiclion over 100 Towns or Villages. In this Court as likewife in the Sheriffs Tourn, not only the Temporal but Ecclefiaftical Caufes were determined, and for this purpofe, as has been obferved before, (under the Title Con/ijUry Court) the Bifhop or his Archdeacon fate there in Pcrfon till the Reign of H. 2. and then this mixt Jurifdiclion came to be divided. And fince this Divifion it hath been a queftion whether thefe EccleGaiiical Courts fhould iiTue out Procefs in their own names as they ufually do, or whether they ought to do it in the Queens Name, and it hath been objected, that they ought to do it in the Queen s Name, becauie, by the Statute of 1 Ed. 6. cap 2. 'tis enacted that all Ecclefialtical Proceis fhall be in the Kings name, and the Te/l* in the name of the Ecclefiaftical Judge, and the occafion of making that a& was, that iealoufie which remained that Bifhopsadted by the Au- thority of the Pope and not of the King. *Tis true, this A6t was repealed by 1 Maria cap. 2. bfct t&at Repeal was taken away by the Statute 1 Jac. cap. 25. tothattbc Statute iEd. 6. ftands revived, and by con&quence the Procefs ought to be in the Queen's Name. But- Councils %\% But the Anfwcr is , (viz..) That by a Statute made before Edw. 6. (viz*.) Anno 25 Hen. 8. 81 (hops had power to meet as they had formerly done, according to the Cuftoms and Laws of the Realm : Now, before that Statute they did fend out Procefs in their own Names, by virtue of that Autho- rity which they had by the Laws of the Realm/ortho* the An- cient Epifccpal Juriidiction here, was not derived from the Pope; but the Biihops adted in their own names as Ordina- ries, and never under the Pope, but when they were delegated by Commiflion from him in fomefpetial and extraordinary Cafes. And this was never counted any derogation to the prero- gative of thofe Princes who were thjmoft jealous of the Supremacy, fuch as Hen,%. Queen Eli%. &c. efpeciallyfmce that Statute which annexes the Ecclefiaffic^l Jurifdi&ion to the Crown, doth likewiie oblige every. Bifhop to take the Oath of Supremacy, And 'tis to be^obferved, That the Controverfie in thole Days was not between the Kins; and the Bifhops, but between him, and the Pope ; for when the Biiliops owned the Supremacy to be in the King, and refufed obedience to the Authority of the Pope, there was little regard in whofename theEccieu- aftical ProceisliTued. Councils. TH E Learned Bilhop Prideattr, whom I fhall follow m Treating on this Subject, hath defined a Council thus : Tis a publick Ecclefialh'cal meeting, efpecialJy of Bifaops and other Doctors lawfully afleinbled, and deputed by feve- ral Churches. . Their bufmefs when aflembled is not to determine any Po- Jitical Affairs or Private Differences ; but they are to exami Ecclefiaffical Caufes, in which the Scriptures are to be th Rule, by which they arc to fettle matters of Faith; a they are to fettle matters of pra6tice by Prefidents 3 and thofe things which concern difcipline by Decrees andConftitutions. Councils are divided into Jndaical, Apoftolical, Oecumenical and National : Of all which I (hall give a very fhort account, and of the moft material Affairs which were Tranfacled in them. The Sanedrin GedoUb cannot be comprehended under the Title ofajudaical Council, tho* this was the great Council! of the Jews, and confjffcd of 72 Elders, who always fate at P Z 1 ruhlrm n4 . Councils. Jerufalem till Gabinius the Prcconful of Syria divided it into five Parts, and then it fate in fivedittind Places. Neither can the Smedrim Ketannah be accounted amongft thole Councils which was a lefler AfTembly, confining of 23 Perfons, and the reafon in both Cafes is, becaufe Civil Mat- ters were determined in thefe Councils, for the affairs of Peace and War ; the choice of Magistrates for inferior Cities ; and fuch like Temporal things was the ufual bufinefs of the Great Council : And when there was a full and compleat number in the Letter Council, then they had power to bear and determine all Capital Offences, and to this our Saviour al- ludes when he advifed his Difciples to beware of Men, for they would deliver them up taCouncils, and Ssourge them in their Syna- gogues ; where by the word Councils he meant the Civil, and by Synagogues the Ecclefiaflical Judicature. But thole AfTembiies which may properly be called Judai- cal Councils were fuch as the Tribes and Elders which were affembled by (a)Jojktta at .SVc/iew to root out tf range Grds,and to prohibit all manner of Converfation with the Gentiles. Such was the afTembly of the Prophets on Mount Carmel, tinder (b) Ah ah and Elijah, where the Prophets of Baal were firft convicted of fa lfe Worfhip and afterwards put to Death ; and the true Worfhip of God was miraculoufly confirmed by Fire from Heaven, at the Prayer of Elijah, which confumed the Sacrifice he had prepared on the Altar. Such was alfo the afTembly of the (c) Priefts and Levites of Jerufalem, under David, who was at that time attired by Gad and Nathan to determine the number of Levites, and to debate about the Offices of the Pri'efts, and to take meafures for their deftribution into feveral Ranks and Degrees. • Such was alfo another afTembly of (df) Priefts and Levites in the Eaft-Street of Je ruQem under the good King Hez,ckiah, for cleanfmg the Temple from Idolatrous Worfhip, and to offer Praifcs unto the Lord as David had done before him. Such was another affembly of the like((?)Perfons ktjeru;jlem, under J oftah and Helki/h the High Priefi, where the Temple was again purged from" Idolatry : And lafly, Such was that afTembly met in the fame City under Zorobahel and Ezra, who returned from the Captivity of Babylon, and fet the Canonical Books of the Old Testa- ment in the fame Order we now have them $ and iorne other AcVwere begun and profecuted in this Council, as particu- (j) Tcjiiia 2|. {b) 1 Kings IS. (0.1 Chrc-i, 1;. j (d) 2 Chron. 1?. (t) t Chron 54. .- Jarly Council*, us larly t\\Z Major eth and Hebrew Points, for preferving the He- brew Language in which thofe Books were Written, that the lame might be truly tranfmitted to Po/icrity. 3l?o&oUcal Council**] The Apoftolical Councils may bi reduced under fuch which were aiTembled agaiitfi the A pottles, and by them. Thole which were aiTembled againfl: them was by (/J Annas the High Priett, Caiphas, John and Alexander, and as many more as were of kin to the High Priett, and this was to fup- preis the Gonxl in it's very Infancy; for they made a Decree that none ihould ipake or teach in the name oFjefus. The lame Peribns were realTemblcd with the Sadducees who committed the (g) Apottles to Pnion, from which they were miraculoufly delivered by the Angel of the Lord, then there was adefign to put them to Death, which was diverted by the Speech of Gamaleel, who told the People that if what the Apottles did was of their own Heads it would come to no- thing, but if from God it would (land. In a Synagogue of the (Id) Libertines (who were the Sons of fuch Jews who wrere free Denizens of Rome) Stephen was ac- cukdby falfe WitneiTes and afterwards put Death. In another Council of Pharifees and Sadducees aiTembled under Ananias the High Priett, St. Tad was fmitten on the Face, and had been tore to pieces by the Rabble if Claudius Lyftas the chief Captain had not Refcued and brought him to the Cattle \ and he was not very fafe there, for the Cap- tain conducted him from thence to Cefarea, and delivered him to F Council. Of Conjiantinople the 2d. Of Constantinople the 3d. Mcene the Second The firft Mcene Council confifted (n) of 318 Biftiops; of which old Biiriop tJofws was Prefident, and Potoman and Papbnutius were his afliftants in this Council; the Herefie of Artius was condemned, who denied the Son to be coeternal and coeiTential with the Father; and that difference which was be- tween the Eaftern and Western Churches about the keeping the Feaft of Easier, together with thofe Schifmatical Difputes of the MeletianSy and of the Novatian Hereticks were Condemn- ed ; and in this Council the good Emperor burnt all the Ac- cufations which the Biihops had wrote againft each other as unworthy tobefeen. The firft Council alTembled at Conjtanti- ConftanttnojiU nople under Gratian and Theodofws confifted ityflrttAD. 313. of 1 50 Biftiops, in which Cyrill Bilhop of Jerttfalem was Prefident; thefe condemned Macedonia* for denying the Divinity of the Holy Gholi The Emperor made all confeffions void, except thofe wherein Chritt was acknowledged to becoellential with the Father,and this is/iiU retained in our Liturgy, in the Mcene Creed, which <») A. 0. 1 : I ■ fome I i Councflr* 117 feme are of Opinion was corripofed by Gregory Nazian^en ; but thofe words (the Son) which confirm the Holy Ghoft to proceed from the Father and the Son were added by Pope Beneditl the Seventh. 4Et)tyfti0 i/?.y4.£\434-] The firftCounc 1 of Epbefw was af- fembled under Tbeodofa the Younger, it confilted of 200 Biftiops, of which Cyrill of Alexandria was Prefidenr, it con- demned Nefiorim of Conjfantinople, who in Read of two Na- tures acknowleged divers Perfons in Chrift, for which he was banifhed, and afterwards Blafpheming, his Tongue was eaten with Worms, and io he died. Calcefcoru] The Council of Cakedon was afTembled by Martianns the Emperor, who was likewife Prefident of it, there were 650 Bimops who condemed the Herefie ofEmycbes and Diofcorus, but this laft was afterwards received into Fa- vour, and Iheodoret, who in compliance to Neflorifu, had condemned the Anathema of Cyrill of Alexandria, was upon his Recantation reftored to hisBithoprick. Conftanttnoplc 3d,A.D.68o.] Thethird Council oFConfiantinopie was afTembled by the Emperor Con/tantine Pogonatw^t confined of i5oBifhops, of which that Emperor was Prefident, in this Council the Emychean Herefie was condemned, and Macarim the chief Promoter of it brought feveral falfe Copies of Books to maintain that there was but one Will in Chrift, which old PolychronicHs ridiculouflv endeavoured to confirm by a Mi* racle in railing 'one from the Dead: In this Council 'tis commonly faid, that 102 Canons were made but never ra- tified, became they were added by the Fathers in the Tmllo, Which is a vaulted Cloifter in the Imperial Palace, and this was above 227 Years after that Council was held. Ctoo Council of $(«♦] The Images, Statues and Relicques which were broken to pieces by Conjlamine, Copronymas and Leo Ifaurtis were reftored by their Son and Grand-fon Con- ftantine in the fecond Council of Nice which was held under him, in which 350 Biftiops were allembled, and Image- breakers were condemned as Hereticks, this Diftiek is attri- buted to that Council. Id dens eft qttod imago docetfednon devsipfe, Hanc vide as fed mente colas qmdeemis in ipfa. There were likewife feven Latin Councils held at Ariminnm, Later an, Lyons , Vienna, Florence, Later an 2d. and Trent. 3r(mtmim« A. D. $69. ] The firfl at Arimmnm where there 460 Biftiops in this Council, the Mesne Greed was or- dered punctually to be obferved, * ' Iattratt.1 nS Councils. flatcratu] The firft four Lateran are comprehended under one, as more favouring the Popifh DifTention than the Do- ctrine or Difcipline of the Church, it is called the Lateran Council from the place where it was held, which was former- ly the Houfe of Plamius Lateranus, who was banifhed by Nero, and Conftantine the Great gave this Houfe to Pope Mil- tides, which has continued as a Palace for the Popes ever fjnce. The firft of thefe Councils was afTembled under H. 5. where 300 Bifhops were prefent, and here the inveftiture of Bifhops with the Ring and Staff was taken from the Emperor and given to the Pope, Crojfes were alfo appointed for the War againft the Infidels, and thofe who fought under them had their Sins pardoned. The fecond was held under Lotharins, A. D. 1 131 . in this there were 2000 Bifhops, who made 30 Canons, all publish- ed by Gratian from the Vatican Library, by which fome He- reticks were condemned, and all Peribns were made guilty of Sacrilege who received Tithes, and fo incurt'd the penalty of Damnation, and Ufurers were deprived of Chriftian Bu- rial and curfed to Hell. The third was affembled under Frederick the Firft, in which were 30Q Bifhops, who condemned the Albigenfes and Peter Lombard, and annulled all Ordinations made by Schifma- ticks. The fourth was affembled under Frederick the fecond, and confifted of 400 Bihhops, who re;e6ted the Book of Abbot Joachim again Peter Lombard, and condemned the Follies of thofe who denied Tranfubftantiation ; this Council exacted Money from the Temporal Magistrates to extirpate fuch whom the Pops had adjudged Hereticks, and granted many Indigencies to thofe who went with Crojfes commanded by Godfrey of Bnlloigm to recover the Holy Land, and laftly, it prohibited pluralities of Benefices. The faid Frederick the fecond A.D. 1 244. affembled another Council at Lyons, in which he was depofed by Pope Innocent the Fourth, who prefided there, the fifth of all Ecdefiaitical Revenues were given for the recovery of the Holy Land, the Scarlet Hat was given to the Cardinals, and Fealts were in- fhtuted for Popifh Saints. The fecond at Lyons was affembled under Rodolphus, A. D* 1272. in which there were 700 Bifhops who com- pelled Michael Paleologns with hjs Greeks, to jiibfcribe that the Holy Ghott proceeded from the Father and the Son, but returning home they recanted it ; This Council fern for Tfar '■ '■ • vv.?; Council^ 119 mas Aquinas] but he died in bis journey thither ; they gave the tenth of all Ecclefiaftical Revenues tor fix Years, for the recovery of the Holy Land: Here the bowing at the name of Jefus was ordered, and in this Council ?;6 Constitutions were made, which are to be found in the fixth Decretals. At Vienna a Council was held under H. 7. in which were 3 CO Bifhops, who encouraged the Expedition to Jerufakmy and fupprefied the Knights Templars, under a pretence t;iat they had murdered the Emperor of the Abyfftnts, and for thaq they wrere Hereticks j but Trithemm tells us, the true caufe was, becauie they were Rich, and this appears by a Coniti- tution they made, that none fhould enter into that Order, unlefs he firft farrender the Goods of the ejected Templars to be difpofed by the Pope. The Conftitutions made in this Council are called the Cle- mentines, and are a Supplement to the Canon Law, and amonglt the reft, there is that famous Decree for conftituting profeffors of Hebrew, Arabick, and the Oriental Languages at Oxford and other Univerfities, to the intent that the jews and Mahometans might by this means be the more eafily conver- ted to the Chriftian Religion. ^iojence* A. D. 1 43 1.] The Council at Florence was be- gun at Farrara under the Emperor Albertm, but adjourned to Florence, in which were 141 Bifhops, and the Pope himielf was Prefident; they depoted the Council of Bafil, and de- bated the Articles concerning the proceeding of the Holy Ghoft, as alio feveral other things concerning Traniubitantia- tion, the adminiftring unleavened Bread in the Sacrament, the Popes Supremacy, to which all the G>eek Bijhops and Dctlors there fubferibed, amongft whom was J ohn P aleologus and Jofeph the Patriarch. iatetan 5th, A. D. 151 2.] The fifth Liter -an Council was held under Maximilian the Firft, it confifted of 114 Bi- ftops, who difannulkd all the A6tsofthe Council of Pifa, and exploded the pragmatick Sanction, which was made'in the Council of Bafil in defence of the Ecclefiaftical Liberties againft the Encroachments and Usurpations or the Church of Rome, the immortality of the Soul was afferted, Preachers were prohibited to pervert the Scripture to ft range Opinions, and Books were not to be printed without the approbation of learned Men. Crcm«] The Council of Trent was aftcmbled by the Em- peror Charles the Fifth, and fate 1 3 Years, in this there were 25 SeiTions, in which the fucceffive Popes, by their Deputies, were Prefident 5 for it continued during the Pontificate . of Paul no Council^ Paul the 3d, Julius the 3d, and /Wthe 4th, in the Reign of the two firft of thofe Popes, Original Sin, Juftification by Faith, the Sacraments in General, and Baptitm in Particu- lar; Repentance and Extreme Unclion were difcuiTed, in the Reign of. the la(t the Communion of Lay Perfons under one Kind, the Sacrifice of the Mafs, Orders, Matrimony, Pur- gatory, worshipping Reliques, invocation of Saints and of Images, Indulgences and other things of this nature were de- bated and iettled. This Council granted fafe Conduct to three Protectants, that they might be'prelent there to offer Reafons for their dif- fenting from the Popifh Religion; but they were not to pre- tend to reform any thing, but to be infiru&ed. I find by the Writers in thofe times, that this Affembly was never admitted by the French, nor very much elteemed by the more learned Papifts; it was wholly rejected by Kemnitius GentiUtus and John Calvin, the learned Father Paul has pub- lished the Hidory of it, by which it will appear to thofe who confult that Hiftory, that it was an Affembly only to impofe on the Chriftian Religion, and not to moderate any diffe- rences in it, and therefore might well be called a facred De- lufion of Christian Princes and Chriliianity it felf. CoturoteruT) Council**] As to the controverted Councils they are reduced by Bellarmine, under a peculiar Claffis, fome of which were approved, and fome rejected; fo that if this diftincVion is admitted, then a Council will be no more than ameer Device of the Pope, to admit and refufe what he thinks fit under the colour of Religion, but really for efta- bliihing his Authority and Supremacy. The controverted Councils are likewife Seven; AtGw- jlmtinople 4th, Sardica, Symia, Ouinifext, Frankfort, Qn- lance and Baftl. Cpnftanttncple 4th, A. D. S70.] Tf au at Gnftantinople the 4th was afiembled under Bafilius, it conilfted of 102 Biihops, who difcharged Photius the moft learned Greek Patriarch, and it was either for writing againft the Ufurpatiqn of the Pope, or for being an Enemy to Images ; but tho' this Coun- cil beftowed great Honours oh Images, they made one very £ood Canon, by which they prohibited the ufing popifh Garments at Comedies or Interludes. There hapned one thing very remarkable in this Council, viz,, the Bulgarians being newly converted to Chrittianity, could not tell whether they fhould communicate with thQ'E-afierh or Wejiern Church, but by thier Ambafadors advifed with this Council about it ; the Romans having Magnified tho Authority of the. Pope, and • where feveral Cardinals met, who fummoned Pope Julius to attend them, but he fo little regarded their luminous that he Excommunicated them and the French King ; and having called an Anti-Synod in the La- teran Pallace, the Cardinals and Bifhops of his Party met there, where having made fome Excufes for himfelf in not calling a Synod before that time, he foon after Died, and Leo X. fucceeded, who continued that Later an Council, and: made feveral Decrees in it, to which the Cardinals at Pija. fubmitted, but the French King refilled, and in contempt of their Authority Coined Money with this Infcription, per dam Babylonem. This Council is likewife rejected by the Pope, be- caufe it was called in an infolent manner by his Cardinals, and againft his Authority,' l&tfcmaf Couttclift i2y Rational &tno&8. 3 I fhall now add a few things concern- ing National Synods, which comprehends the provincial Bi- fhop of every Archbifhops; thefeare. no: of that univerfal Au- thority as general Councils are, for their decrees arc not bind- ing out of their Limits; but if conformable to Scripture, and confirmed by general Councils, they are in force every vvhere. Ihtk National Synods are Seven in number, African, Britain, Eastern, French, German, Italian and Spanijh National Coun- cils. African Council** ] The African Councils were almoft 20,1 of which 15 were held at Carthage, and amongft them the fixth is worthy of Obfervation, by which the lubtilties of the Pope were difcovered in obtruding a iuppofitious Canon of the Nicene Council, for receiving Appeals in the Synod of Me- livitis Pelagianifme was confuted « and in the Synod of Hippo the Canons of other Synods were collected. 1Brttt(rj Counctls.] Amongft the Britifh Councils the moft famous were held at Winchejier under King Edgar, the Arch- bifhop Dttnftan then prefent, where a Wooden Crofs gave a Vote againft the Marriage of Prictts, if we believe the Monks who report this Story. Another at Oxford under Stephen Langton, who divided the Bible into Chapters : Another at Clarendon under Hen. 2. in which John of Oxford was Prefident; in this Council 16 Constitutions were made, which the Romanics condemn. 4Haftetn Council*. ] Under the Eaftern Councils the Grecian, are comprehended. At Conflantinople there were Thirty three; that at Aneyra determined the receiving and rejecting thofe who fell away ; that at Leodecea debated the worshipping of Angels; that at Gangr a was aiTembled about the reformation of manners, and in thzTyrian Council Athanafws was trou- bled and difcharged. ftencl) Councite.] In France there were held 13 Councils ; in all which Sacrilege and Sacrilegious Perfons were Con- demned. At Aries the Clergy were directed what Difcipline to obferve in the Church. German Council*.] In Gerwdny there were 9 Synods held at Cologne; one in Bavaria concerning the Sabbath; one at Wormes concerning decency in Ecclefiaftieal affairs ; one at Mentx, concerning Ecclefiaftieal Immunities, another held there againft Godeljtalchus, and in this Prayers were enjoined for the Emperor and Emprefs, and the good eftateofChrifti- anity; at Aqmgrane. there was another concerning EccJefia* meal Orders ; at Erf or d another concerning Feaft Days, another at Don againft the RemonftrantswA Sounians, i2d Commit 3 taltan Councils ♦] In Italy there were 115 fuch Synods, amcngft which we mult, reckon thole the chief which were aiTembled about the celebration of the Feali of Eafter ; thofe who received penitent Apoftates into the Communion cf the Church, which the Nova'.ims alwa\s refuted; that aiTembled under Pope Gelafua of 70 Bifhop?, wherein the index Expur- gatorius was compofed, and the Canon Law tranfmitted to Pofterity ; the Simceffan Council in which Pope Adarcellinus was condemned for Sacrificing to Idols; that aflembled by Pope John XXIII. to Crown the Emperor Sigifmund, but the Solemnity was fpoiled by the frequent appearance of an Owl in the affembly ; that at Papia which excommunicated the Pope who had excommunicated the Emperor : and that at Brixia whodepofed the famous Pope Hildf brand. ^pantO) Ceunetl«» ] Of the Spanijh Councils there were 25 held at Toledo, in which many things were religioufly de- creed, and chiefly againft the Prifcillianifts ; in that at Eliberis there were 81 Canons made, by which the Prifcillianifts were likewiie condemned ; in that at Gefar Augusta it was ordered that no Man fhould afiiime the title of a Do6lor unlefs he had taken his degree ; in that at Lerida Marriage was prohi- bited in Lent ; in that at Bracara the Manichecsan&Xhz PriJ- cilUniits were condemned ; in that at Matifcon the Vices of the Clergy were Reformed, and the payment of Tythes urg- ed ; in that at Hifpdii the icbnfecration of a Presbyter, by a Presbyter, is condemned. Bcfides thefe aflemblks there have been feveral publick and folemn meetiucs of Divine*, which may properly be called Ecclefiaftical conferences ; tome of which have been aflem- bled by Authority, and fame were arbitrary and voluntary Meetings: Thofe affembled by Authority were held at Marpurge^ Spirt, Smdchald, IntermisHcan, Ahenbcrg, Targe, Hetzhnrg ; the meetings at thefe places were to compoie the differences a* mongft Diffewting Brethren. At Wormcs, Ratisbone , PoJJIacc , St. Germans, Montpillier, Oxford, London ; thefe were meetings c( Roman Catholick?. At Mdbiirne Wittenberg, Fr and ford. By Lutherans Cahinisls, Zwingl'ums and AwabapriBi. Remonstrants, at the Hague, Antitrinitarians, Dijciplinarians, at Geneva. Upon the whole matter it has been obferved by fome of our * Divines, that nothing more expofed the Chriftian Reli- gion than the violence, palhcn, mallice and oppreifion whieh Wuk** Authority of Ctaftiab P.ince 5, fit fyy. prevailed Citrates* 117 prevaikd in tliofe Councils held by Contt 'amine the firft, and other fucceeding Emperors, upon the cccafion of the Arrim controverfie. Curates. GIN CE rin fome Cafes Pluralities are allowed, which muft *** neceffarily imply non-re [ide nee upon one of thz two Be- nifices, 'tis requifitethat a Clergyman in fuch cafe, or if! le is old or infirm, Ihould liave a Curate to fupply one of his Cures. The common ufage is, that Licences are granted by Chan- cellors of the Diocefs, and taken (as the Bifhopof Worcester obferves) in the fame manner as St. Peter took the Fifh, which firft came with Money in it's Mouth ; but this is not only contrary to the Canon, but may be a great inconvenience to the Church in general, for when fo little care is taken, the People may have a weak and inefficient Pcrfon fee over them. Therefore the (a) Canon prohibits Curates to ferve in any place without examination and admimon by the Bi (hop of the Diocefs, under his Hand and Seal, or by the Ordinary, having Epifcopal Jurifdiclion ; fo that the Law requires the approbation of the Biihop to the admiffion of a Curate, and no Incumbent ought to take one without it. Tistrue, many Licences are granted without the BiuSops Hand and Seal, which, tho' not void, are irregular, becaufe cxprcfly againft the Canon. Now, 'tis not only neceffaty in refpeel to the Church, that the Curate ihould be allowed by the Biihop, who 'tis prefum- ed will approve no other than a Perfon of tolerable abilities to officiate in the Holy Function, but 'tis convenient for the Curate himfelf, for when he hath the approbation of the Bi- fhop, he ufually appoints theSallary too, and in fuch cafe if there ihould be any neglect of payment, the Curate hath a proper remedy in the Ecclefiaftical Court, by a Sequeftration of the profits of the Benefice; but if he hath only a Licence without the Biihop's Hantl and Seal, then if his Wages ihould not be paid he muft bring an A6tion at Common Law againft the Incumbent, in which there are fome niceties which are not required in the other Cafe ; as firft, he muft prove the a- greement ; he muft likewife prove that he Subfcribed the De- claration according to the (*) Act of Uniformly; for 'tis U) Carwn 48. (#) $4 Car. 2. cap. 4; Q 2 . refly i28 Curate. cxprtfly required by that Act that every Curate {"hall do it, or be ipjofafto, deprived of his Curates place. Thefe are the remedies which he hath for his Sallary, but before the Statute 29 Car. 2. he hath nothing to do with the Tythes themfelves, and therefore payment to the Curate was no good difchargc againtt the Impropriator, not for the reafon given by (a) Mr. Noy, viz,. That a Curate cannot preicribe againtt his Matter, becaufe he may remove him at pleafure, which I deny, for if he is Licenfed by the Bifhop as he ought, he cannot be removed without his content, but the reafon is, becaufe he hath a right only to a Sallary or Penfion, which may be recovered as abovementioned. I admit that he hath no fixed Eitate in his Curacy, but that the Bifhop may remove him at pleafure without any format Proceis at Law, tho' the Incumbent cannot j but this is fel- domdone, efpecially where the Curates arefuch who are cal- led perpetual Curates ; for, as where the Tythes were appropriate , there 'were Vicars called perpetual, who were not endowed, but had only congruam portionem allowed them by the Bifhop 5 fo where the Tythes were impropriate and no Vicarige endow- ed, as they are in many places in England, the Lay impropri- ator is bound to maintain a Curate to perform Divine Offi- ces, who -is called a perpetual Curate. Tis true, he is no fole Corporation, and therefore cannot take any benefit of a Devife to him by that name ; but if an Impropriate! fhould devife a certain portion of Tythes to him and to all that ("hall ierve the Cure afcer him, tho' the Curate is incapable of taking by fucha Devife for the reafon above- mentioned, and for that he hath no SuccelTion, yet a (Jb) Court of Equity hath decreed that the Heir of the Devifor fhall be feifed in trutt for the Curate, for the time being. It hath been obferved before, that when the Bifhop approves the Curate, he ufually appoints his Sallary, which he might- alter or increafe as he fawoccafion ; but this mutt be under ~ ftood to be before the Statute for (*) augmenting Vicaridges and Curacies, for fnice that Statute thefe perpetual Curates have a more fixed and ettablifhed right to their Sallaries ; for ma- ny Ecclefiattical Perions and others, fince theRettoration have, upon renewing their Leaies of Tythes, reierved more than the ancient Rents on purpofe, that the fame might be applied to improve poor Vicaridges and Curacies. But becaufe fuch augmented Rent was not in fome Leafes made payable to the Vicars and Curates themfelves, therefore i*) N'oyi$. {b) 2 Vent, n** C) 29 Car. 2. cap, 8. the the Statute provides that as well when 'lis made fo payable as where 'tis referred by way of encrcaie to the Lefibrs, but intended for the benefit of the Vicar or. Curate, that it fhall continue during the Lcaie and afterwards, in wh >fe hands foever the faid tythes fhall be, and they ihall be chargeable therewith whether the fame is refcrvcd again or not : For, by that Statute the Curates are declared to be in the actual poifcffion of foch augmented Ren s, for the ufe of them- lelvcs and their Succefiors, and may diftrein or have an Acti- on of Debt to recover the lame, fo that they have a right by this Statute to iuch Salary, and cannot be deprived of it at the pleafureof theBilhop, tho' the Curate is Licenfed ad no- Hrum dmtaxct bene fUcitHm duratnrHm. Therefore, like other incumbents, they mutt be deprived by due courfe of Law. It hath been a queftion whether the Executors of a Curate may be fued in the Spiritual Court for dilapidations; lomeare Of opinion that they cannot, becaufe he is not properly an Incumbent ; for he doth not come in by inftitution and in- duction, and therefore is not to be charged himfelf, nor thofc who reprefent him. Cure of Souls. XJiT HEN Chriftianity was firft Planted in this Nation, the * ▼ Bifhops were conftantly relident at their Cathedrals, and had feveral Clergy-men attending them at that place, whom they fent to preach and convert the People, wher^ there was the greateft probability of fuccefs, and the Perfonsthus fent either returned or continued in thofe places, as occafion required, having no fixed cures or titles to particular Places; tor being all entredin the Bifhops Regiftry (as the ufual courie then was) they could not be difcharged without his confent. Afterwards, when Chriftianity prevailed, and many; Churches were built, the cure of Souls was limited both 3s to Places and Perfons. The places are thofe which we now call Parifhes, the ex- lent whereof is certainly known, and the boundaries arc now fixed by longUfage and Cuftom. The Perfons are the Minifters, who by Prefentation, In- ftitution and Induction, are entitulcd to the Tythes and other Ecclefiaftical Profits arifmg within that Parifh, and have the cure of Souls who live and refide there, and this the Canonifts call a Cure in foro interiori tantum, and they di- ftinguifh it from a cure of Souls in foro exteriori ? fuch as Q l Arch: 130 CllSOItU Archdeacons have to Sufpend, Excommunicate, and Ab- folve, and which is fine pa fi or all cura, and from another Cure which they fay is in utroqn? /tmd, that is both in exterhri & interiori foro, and fuch the Bifhop hath, who hath a iuperin- tendant care over the whole Diocefs intermixed with Juris- diction. It hath been obferved by a late learned Prelate, that fome People are againrt thefe Cures which are thus limited to Parifhes, becaufethey have no manner of refemblance to the firft gathering of Churches before the Nation was divided in- to Parifhes ; for before that time, as it hath been already ob- ferved, the Bifhop and his Clergy lived in Common, and they had liberty ot Preaching where ever they were Tent or called. But he tells us, the fame Argument may be ufed againft Dominion and Property, becauie 'tis not agreeable to the na- tural ftate of Community ; for Mankind by an Original and natural Right, had a freedom to poilefs tbemfelves of any thing which they thought convenient for their Ufe ; but upon encreafe of the People great inconveniencies attended this Stare of Nature, and then Property came to be eftablifh- ed by Divifion, which was found to be fo abfolutely necef- fary for the publickGcod, that it was not only continued in all fubfequent Ages, but ftrengthned by Laws and Civil Sanctions, in order to pftnifh thofc who invaded the ieparate Rights of another either by force or itealth. And the cafe is the fame in reipeel to cure of Souls -, for upon the encreafe of Chriftianity there being many inconveniencies found in an unfettled and ambulatory Clergy, the People be- ing at a great incertainty where to go in order to hear Di- vine Service , and to partake of the Sacraments, when Churches were built and liberally endowed by our Anceftors, it was then thought neceffary to fix a Presbyter in a certain and determinate place to take charge of the cure of Souls within that particular Diftric*, where thofe of his Parifh might attend the Service of God, and have help and direction in their Spiritual Affairs. Cujlom* *TIS for the the publick Good and Peace of Mankind, "■• that a time fhould be limited for all Perfons to claim thtir Right and be excluded for their Neglect, for otherwife Men might be disturbed in theie PoiTeffions after many Years quiet Deacon* 151 quiet Enjoyment, when there is no poffrbility cither of de- fending or proving their Right. Therefore with us herein England an immemorial Cufk-m bath the force of a Law, and Mens Rights are cttabliiLed by long and uninterrupted Poflcfllons. Such a Cuftam. is called by my Lord Coie one of the Tri* angles of the Law, but I think, in this, he fpoke more like a Mathematician than a Lawyer, for 'tis generally agreed amonglt Men of that Profeflion, that Cufiom is the Founda- tion or the common Law. The learned Bilhp of Worcefcr gives an account of frcral Ecclefiaftical Constitutions which arc thus founded on Cu- irom, and by confequmce arc now become part of the Laws of the Land, fuch is the dividing the Na.ional Church into two Provinces, and fixing an ArchbiO.op. in each, wjtfc a Metropolitical Power and Authority over all Ecclefiaftical Perfons and things in each Province. Such is the ordinary Juriidiction pf every Bifhop over the Clergy in his proper Dioceif, which fome think to be as an- cient as Chriftianity it feif, for as foon as Churches were built and planted in this Nation Bifhops were placed over them, and the Clergy who officiated in thofe Churches were accoun- table to their Spiritual Governors at every Vifitation, both for their Living and Behaviour; and the Bifhops who were then the only Vidtors, might proceed againlt them for any contempt of their Authority, or for their Misbehaviour in their feveral places. Such wras alfo the delegated Jurifdiclion which is lodged in the Officers of Ecclefiafticaf Courts, and the manner of proceedings therein. And laltly, Sueh is the fettling the boundaries of Parifhes, for this was not done by the Legiflative Power, or by any particular Law at once, but it was begun, continued, and rixed according as Men found it convenient in refpeel: to Places, and as fuch Divifions feemed juft and reafonablc to f-arry on the Purpofes for which they were originally de- fined. As for Cuftoms of Tything, I fhall treat of them, under the Title Tythes in the word Cuftom. Deacon. f do not intend to treat of the Original of a Deacon, which * is as' ancient as the time wherein the Apoitles lived, and lb •s the antiquity of a Deaconeft Q \ Bsx *32 ©eacotn But I /hall take notice of him as the third order of the Clergy, and that he was anciently Ordained in a different manner from the Presbyters ; for a Deacon might be Ordain- ed by a Bifhop alone, without the affiftance of any Presby- ters, and when Ordained, his Office was to take care of the Ornaments and Ucenuls of the Church, to receive the Obla- tions of the People, to distribute the Bread andWifte to the Communicants, to read the Gofpels in fome Churches, and to Baptize in fome Places, and to Preach, but not without leave of the Bifhop. This Office is a ftep towards the Miniftry, and fo it was reputed by the Ancient Fathers, and praclifed in the Primi- tive Church ; for to them it feemed neceffary that a Deacon Should be a Probationer for fome time before he was admit- ted into Priefts Orders, which was ufually for the fpace of a -Year, and therefore a Man was to be ordained Deacon at twenty three years of Age, and afterwards a Prieft at twenty four, not that it was ever accounted of abfolute Neceffity there fhould be the interval of a Year between the conferring thefeOrders, for by Canon 32, if the Bifhop fhall find good Caufe to the contrary, a Deacon may be admitted into Holy Orders within that time, but regularly it ought to be a Year, and with great Reafon, becaufe in that time it may appear, whether the Perfon is fit to have the cure of Souls entirely committed to his Charge : But by the fame Canon 'tis ex- prefly provided that a Bifhop (hall not make the fame Perfon bo1 h a Deacon and a Prieft in one Day. Tis true, the Qualification for both thefe Offices is the fame, but there is fome difference in refpe6t to their Age, for a Deacon may have a Difpenfation for entring into Orders before he is twenty three Years Old, and 'tis difcretionary in the Bifhop to admit him to that Order at what time he thinks fit; but regularly there can be no Faculty or Difpenlation for entring into Priefts Orders before twenty four, tho3 this is likewife done Anno currente as they call it. As in the Primitive Times, a Deacon was to read the Gofpels : fo with us his Office conGfts in reading Divine Ser- vice, catechizing Children, baptizing Infants, Burying, Marrying; and before the A6t of Uniformity he might bein~ cumbent on a Living with Cure, but not fince ; and the ve- ry Form of ordering Deacons, exprefly mentions, that 'tis his Office to alTift the Priefi in the diffribution of the Holy Conmt& nion, and from hence a Queftion hath arifen, (viz,') that fince by the Statute 14 Car. 2. . thofe who are not Priefts by Bpifcopal Ordination, are prohibited to administer the Sa-* .... cramerx. DeananD C&apter* 135 crament of the Lord's Supper under the penalty of ioo /. one Moiety to the Queen, the other to be divided between the Poor of the place and the Proiecutor ; whether a Deacon doth not incur that penalty by distributing Wine to the Com- municants ; But I think the bare Act of giving the Cup to them, without confecrating the Wine, doih not make him an Offender within this Law, becaufe the Prohibition is, that no Perfon fhall prefume to Confecrate and adminiiter the Sa- crament, &c, which words comprehend the whole (olemni- ty of the Communion. Dean and Chapter. ADean\%zx\ Ecclefiaftical Magistrate, who is next, in De- gree, to the Bifhop, he is chief cfc the Chapter, and is called a Dean, becauie he formerly prefided over ten Pre- bends or Canons, he is by our Law a fole Corporation, that is, he reprefents a whole Succeflion, and is capable of taking; an Eftateas Dean, and of conveying it to hisSucceflors, and therefore if Lands are given to him, the Inheritance paffes without the word Succeffors, becaufe in conftru&ion of Law, fuch Bodies never die. But Chapters are not capable to take by Purchafe or Gift: without the Bean, * yet if a Bifhop maketh a Leaie referving Rent, and there is a Provifo, that in the vacancy of the See, the Rentfhall be paid to the Chapter in jure fuo proprio this is good, for they are Perfons of which the Law takes notice, and are capable to receive Rent, Ibo] it may be a queftion whether in their own right or net. As to his Original 'tis thus ; Tis certain that Ecclefiaftical bodies of Men did anciently refide with the Bifhop in his Cathedral, tho' not under the denomination of Dean and Chapter, and thofe Men were part of his Family, and when he died they chofe another in his room, but they had no peculiar JurifdicYion in the Saxon times. Afterwards, when they got pofleffions by the endowment of Bifhops and others, then thefe Perfons afTumed names of Dignity ,jand obtained peculiar Jurifdidions, and fo were call- ed Prior and Convent, and when//. 8. transferred them to Dean and Chapter ythe legal Rights which they had remained ftill, and they became a Chapter to the Bijhop. 0 Moor * 2. Tis i34 Dsan ana Cfjaptetv 5Tis true, they might furrender their Lands, but they could not diflblve their Corporation, and this appears by the cafe of the (a) Dean and Chapter of Norwich, who conveyed all their Lands to Ed. 6. and he by Letters patents incorporated them by the name of the Dean and Chapter of Trinity Church in Norwich ex fundatione Ed. 6. and regranted their Lands to them, then they made a Leafe by their old Name, leaving out thofe words ex fundatiane Ed. 6. and adjudged that the Leafe was good, becaufe the Corporation was not dilTolved by the conveying all their Lands, for thoJ they bad none, they might ftill exercife Jurifdiction in confirming Leafes, &c. There are now three, but formerly tlfcre were four forts of Deans. (i.) The firlt is a Dean, who hath a Chapter as moft Deans of Cathedrals have, but there are fome Cathedrals which never had a Dean, as that of St. David and Landaff, where the Bifhop is Head of the Chapter, and in hisabfence the Archdeacon . (2.) There is another Dean without a Chapter, and not fubject to the Billion's Vifitation, but hath a peculiar Court, in which he hath Ecclefiartical Jurifdidion, and fuch is the Dean of Battell in Suffex, who is prefentable by the Lord JFiJ- comt Mountague, and comes in by inftitution of the Bifhop of Chichefter, and by Induction, as other Incumbents. (3.) There is another Dean who is not prefentable but donative ; he hath alfo a peculiar Court, and Jurifdidion within his limits ; this Dean is conitituted by Commiflion from the Archbifhcp of Canterbury, and fuch is the Dean of the Arches, the Dean of Boding^ &c. (4.) And there was another called Decanus Chrijlianitatis, cr a rural Dean, who had no Judicial Power, but was only a fubftitute to the Bifhop in granting Administrations and probates of Wills ; but his Office is now devolved on the Archdeacon and on the Chancellor, who generally execute their Authority throughout the whole DioceK In the next place, I (hall obferve who may be made a Dean and who not, and in what manner he is made. Before the A61 of Uniformity Laymen were made Deans, as the Dean of Durham, but it was not common, and it was for this reafon that fome Men were of Opinion, that a Deanry was not a Spiritual Promotion; but now no Man is capable of that Dignity but a Clergy-man. ft) 2 And 167. _, roj Dean anu a&aptct. 13? (Eor a Dignity it is, becaufe he hath a Junfdic~tion* and therefore a Writ brought againtt him as Dean is good without his proper Name, and we have my Lord G/-,'s Word for it, that a Deanry is a Benefice with cure of Sctt!s ; and that it bad been comprehended under that name in the Statute 21 H. 8. . (*0 1 Eli- cap 2. 5 Rep. Cwrfr/Vs Cafe, (a) jlnft, 204, (b) 1 Brcwnl 70, & BrowaL 37, Htrcfvl 140 DeppatfonJ Here/if. Miter ature. Hob. 1 45?. But there muft be a declaratory Sen- tence. Incontinency. In thisfc) caielikewife, there muft be a de- claratory Sentence. Irreligion. Layman. There muft be a Sentence of deprivation, and notice to the (d) Patron by the Ordinary. Mala in fe. Guilty thereof, Dyer 293. Married Priejh. This was a caufe of Deprivation before the Reformation, and therefore one was deprived in the Reign of Queen Mary, butreftored 1 £/i^. by vertue whereof he was Incumbent without any new Prefentation ; but in thofe days a Priert might keep as many Concubines as he would. Manslaughter. Convicted thereof in the (e) Temporal Courts for the Ecclefiaftical hath no Jurifdiclion in Capital Cafts, and therefore the Sentence of deprivation is grounded upon the Conviction in the Courts at Law. Murder. Nonage. Under Twenty three the Patron muft have no- tice, March 1 1 9. Ordinary. Difobedience to him, 2 Cro. 37.- Perjury. Convicted thereof. Plurality. Tis void ipfo facto, by the Statute 21 H. 8. (/) and therefore no need of a declaratory Sentence, but the Patron is to take notice of fuch avoidance. Sacraments. Not adminiftring in the form prefcribed* Scandal. Schifm. Surplice. Not wearing it. Symony. This was a caufe of Deprivation before the Sta- tute 31 Eliz,. cap. 6. Tenths. Demanded at the Churches or Houfes of Clergy- men by the (g) Collector, and not paid then or within 40 days after, and the Bifhop certifying this default in the Ex* chequer, It hath been a qtieftion whether the Bi {hop's Certificate is peremptorv inthis(6)Cafe,and adjudged that 'tis not,but that k may be Traverfed, becaufe he certifies as an Officer, and not as a Judge. Then there are fome niceties in the Demand, and the Cer- tificate, viz,. That it muft be made by a proper Officer, hav- ». — — ■ ' ' ... . U) Hob. 293. Cro. Eliz.4t. 789. (4) Dyer 293 1 And. 16. % Rep. 102.* 2 Cro. 430. Hob. i2i, 288. Keil, 1 81. (f) Cro« Car. 357. (g) 2$ Hen. 8 eap. 3. (h) Cro. Elis So, ing Dcpjfoatfdn. 14 l ing authority from the Bifhop, and not by an Apparator, neither can fuch Officer appoint them to be paid to a Depu- ty or at any other place but the Houfe of the Clergyman,and they mult be demanded in the name of the Bifhop, and he mult not certifie the non payment only, but the place of de- mand, and all this mu(t be after the 40 days are expired, for if he certitie before that time 'tis void, Savile 1. 26. But in molt of thefe Cafes, if the Pany Appeal to a Supe- rior Cwt, the Sentence by that means is fuipended, and if 'tis reveried upon hearing the Appeal, the Clerk continues in- cumbent without any ncyv infhtution. Yet if the Deprivation is for a thins; meerly of Ecclefiaftical cognizance, in fuch cafe no Appeal lies, and the party hath no remedy but by a Commiffion of Review, which is granted by the Queen of meer Grace, Moor 781. In the next place there is a difference to be obferved where a Benefice is only voidable, but not actually void before ade- clatory Sentence of Deprivation, and where 'tis made void ipfo facto by fome Statute ; for in the firft cafe the Party mu(t be cited to appear, there mult be a Libel againft him, and a time affigned both for the proof and anfwer to it, and liberty for Advocates to Plead and except againft the Proof, and af- ter all a folemn Sentence upon hearing the Allegations on each fide, which by vertue of the (i) Canon mult be pronounced by the Bifhop himfelf, with the affiftance of his Chancellor or Dean, and fome of the Prebendaries, or of the Archdeacon and two other grave Minifters. But none of thefe formalities are required where the living is made ipfo f alio void ; 'tis true, in that (/•) Cafe the Ordi- nary mult give the Patron perfonal notice of fuch Depriva- tion before he can have a Title to prefent by Lapfe, becaufe 'tis panal both to the Incumbent and Patron, and 'tis not fuffi- cient to give notice in the Church, or to fix it on the Doors thereof, but it ought to be vere propria & pcrfonaliter & non fitle> and if there fhould be any difficulty in finding out the Perlon who hath the next Prefentation (as it may happen) or the Patron who hath the Inheritance of the Advowfon, the Bifhop in fuch Cafe may award a jus Patronatusy and fb give him notice who is found by Verdidt to have the right, if he can be found in that County where the (/) Church is, if not, then publick notice is to be fixed on the Church Door ; but this doth not bind the right of the O) true Patron, if he that (i) Canon 122. (K) Dyer 346. Cro.Elfc. 680. WD/erja8. Cxo. £l;z. ng. (m) Hob. 318. R fi i42 Deputation. is found by thzVctdi£\ on the Jt*s Patronatus fliould not be the Parfon. It hath been lately quftioned whether the Archbifhop hath a Power to deprive a Bifhop for any jult Caufe, or whether it ought to be done in Convocation. Thofe who deny the Archbifhop's power in this Cafe, do affirm that he hath no fuch Authority, either by the Canon or the Statute Law. That the Canons are exprefly againft it, for thofe direct that a Bifhop fhall be deprived in a Synod of the Provence, or if that cannot be aflembled, then by the Archbifhop and 1 2 Bifliops at leaft, not as afhftants, but as Judges. I fliall not enquire whether this Canon was ever received in England, but the Praclife hath been againft it ; for Bifhop Bonner was deprived of his Bifhoprick by Coramiflioners ap- pointed'by the King : I know 'tis laid that fuch Commiflions were IfTued at that time from the Crown, by vertue of a Supremacy Lodged in our Kings, becaufe a Bifhop could not be deprived in* a Sy- nod fo loon after the Reformation ; for the Popifli Bifliops and Clergy were then too numerous in thofe Aflemblies for the Protectants, and therefore they proceeded by fuch Com- miflions. But it was not an Objection againft Bonner % Deprivation, that itwasUncanonical,a> being done by the Kings Authority, but becaufe fome of the Commiflioners were Laymen, and what if they were ? The Sentence fhall not be therefore void,for 'tis not wholly an Ecclefiaftical cenfure, fo that none but Churchmen mult be concerned in it, for 'tis of a mixt nature that a Layman may alfo joyn in fuch a Cenfure : Befides, fmce a Bifhop is vetted with that Dignity by a Cornmiflion from the King, 'tis reafonable that he fhould be deprived (where there is jutt Caufe} by the fame Authority, for tho' the Pope did formerly aflume a Jurifdiction to deprive Bifliops, it was by Ufurpation, and what Power he had be- fore the Reformation, the Kings of England have enjoyed fince they have been Reftored to their ancient Right. Dilapidations* 9 TMS not only the intereft of the Church in general topreferve *■ what belongs to it, for the benefit of theSucceflbrs; but 'tis a part of Common Juftice and Honefty that it fhould be fo j and therefore the Old Canone, and particularly that of Car J.Balfr. XJ8, ; Roll, Rep. m- R 2 lae 144 Dilapifiaticmg. The Profecution for this Offence may be brought either again/i the Incumbent himklf, or again!:, his Executor or Ad- minifirator : If againft the Incumbent, then 'tis proper in the Spiritual Court, and the Remedy is cafie, for the Bifhops may Seque- fter the Profits of the Benefice to Repair the Buildings, &c. If 'tis brought a*gain(t the Executor it may be likewife in the Spiritual Court ; but the Succeflbr may have a Special A£tion on the Cafe, upon the common Cuttom of England. Quod omnes (r) Prebendarii Rett ores & Vicar'ti Rcgni Angli^ pro tempore Exvijlentes omnes & fmgulas domus & edificia Prce- bendamm Recltoriarum & Vicariarum fuacum reparare & fuften- tare & ea reparata Cr fulfentatafuccejforibus Juts dimmer e tenem- tstr, &c. Upon this Cuflom feveral (/) Adions have been brought, and Damages recovered, which mult be laid out within (*) Two Years afterwards upon the Reparations, or the Party forfeits double the Value to the Queen of fo much as fhall be received and not fo emploied. But leaft fuch a Recovery fhould be made ineffectual by any Secret Conveyance of the Perfonal Eftate of the (t) In- cumbent, the Law hath provided that if any Clergyman makes fuch a Gift of his Goods to Defraud his SuccefTor, he fhall have the fame Remedy in the Spiritual Court againrf the Perfon to whom fuch Conveyance was made,as he might have againftthe Executors of the Deceafed Parfon. * Tis to be obferved, that the Perfon to whom fuch Gift or Alienation fhall be made, (hall make no farther Recompense £han for the Dilapidations or Decaies which have happened by the fault or default of the Incumbent : Therefore, when a Par- fon is Inducted, and finds the Buildings in Decay, and that h?s PredeceiTor did not leave a lumcient Perfonal Eftate to Repair them, he may have the Defects Surveyed by Workmen, and Attelted under their Hands in the prefence of Two or more credible WitnelTes, which may be a means to fecure him from that Charge which might enfue, for the fault or neg- letl of his PredecelTour. ir) Hern. 136. (/) Par*, Coptic, 80. (*) i4Eliz« cap. xu (t) 13 Eliz» cap. 10. DiJptftfitiM MS Difpenfation. See Plurality Comendam. HT HI S is a term ufed amongft the Canonifts, and it figni- -*■ fics a particular Privilege granted to a Perion either to have or do that which by the Canon Law he was prohibited to do, &c. The firit Difpenfations were only relaxations oF that pe- nance which Perfons were to undergo who had tranfgrefied againft the ancient Canons of the Church, but not a total releafe of the force of thofe Canons, io that they iliouU be no longer binding upon the Confciences of Men. But afterwards the Canonists made it to be a Lirenfe for a Man to do that which he could not lawfully do without it, with a non ob ft ante to the Canon it felf; and the Bifhops did ufually difpenfe with thofe Canons which concerned Dif- cipline upon pretence that the intereit of the Church might be advanced by it, and by this means the feverity of the pri- mitive Difcipline was laid afide. This made the Bifhops of Rome, who were generally ambi- tious of Reputation to Hand up for the ancient Canons, and they profecuted the matter with fo much Zeal, that they were efieemed to be the Guardians of thole Canons, till at laft they aiTumed a power over them, and then this Doctrine was {tarted, that the authority of difpenfmg with them was a pe- culiar Prerogative vetted in the Biflnp of Rome, and that no in- feriour Biihop had any manner of power to difpenfe. Afterwards by the permiffion of this very State, and by open and folemn decifions in our Courts of Juftice made in favour of the Pope's dilpenfing Power ; the Ecclefialtical Laws were almott made ufelefs, and this was the occafion why the Parliament Anno 21 H. 8. cap. 13. .thought fit to reftrain and limit that power, and they began in cafes of Pluralities; for by the Canons of the Church no Man was to take more then one Benefice with cure of Souls, becaufe the fame Pafon could not refide in two places at the fame time. But the Pope to encreas his Revenue, did difpenfe with Men to take pluralities without number or value, and there- fore by that Statute the acceptance of a fecond Benefice with cure of Souls, where the firit was of the yearly value of 8 /„ wa3 made void, and that any Difpeniation to the contrary fhould not only be void, but the party procuring the fame fhould forfeit 20/. to be divided between the Queen and Profeeutor, R 5 At i4<$ Dffpmfattom About four Years afterwards the (a) Parliament taking notice that the Nation was made poor by Exactions of rtie Bifbop o/ifr>we,andthathe raifed great fums of Money by Dif- penfations; they prohibited all Peribns to Sue for them from Rome in any cafes whatfoever, and therefore they vefted the Archbifhop of Canterbury with a Power to grant the fame in things formerly uied to be diipenced withal, but not other- wife without the approbation of the Ring and his Council. My Lord Hobcrt (b) tell? us, that the meaning of thofe words inufl: be, that the Archbifhop might Difpenfe in all fuch Spiritual Matters, which the Pope formerly did qnaftde jure, but not in every thing which he did generally, for he granted Difpenfations againtt the Law of God, (viz,.) to Mar- ry within die prohibited Degrees, and likewife againft the Laws of this Kingdom ; as Jfor an Alien who neither fpoke or underftood Englijb to have a Benefice here with cure of Souls, tho' he never refided upon it ; and 'tis not fufficient to fay, that fuch a place may be fupplied by a Curate, becaufe the grant mull be firft legally fixed in the Grantee before it. fhall go in Deputation to another. But tho* the Pope d;d afTume this tranfendent Authority, yet I find a Power was lodged in the Kings of England long before H. 8. to grant Difpenfations in Eccletiaftical Caufes, as in cafes of Appropriations, Commendams, Exemptions, Pluralities, &c. To initance infome more particularly, (viz,.') by the Ca- non Law every Spiritual Peribn is viftfable by hisDiocefan, but William, called the Conqueror, exempted the Dean of Battel inSujfex from Epifcopal Vifitation, and fo it continues at this very day. And even at that time when the Pope was fas my Lord Robert calls hinij Damon meridianus, and his Authority very great in this Kingdom; the Crown kept pofTefllon of that iuft Power of difpenfmg in Spiritualibus, as to retain a Benefice with aBifnoprick to hold two Livings, &c. Tis true, it was the Opinion of fome {c) Parliaments in that Kings Reign, that the Bifbop of Rome had deceived the People of England, by perf wading them, that he had an ab- folute Power'to difpenfe with Human Laws in all Spiritual Cafes; that it was an Ufurpaticn which derogated from the Imperial Crown, becaufe the King had op Superior herer and that the People were not bound to obferve the Laws of any R re:gn Prince or Prelate, but only the ancient and accu- (■<) 35 H. fc, cap, 21. (0 Hcb 147. (c) 2$ H. 8. cap. 16. ' ftomed Dfoojce* 147 ftomed Laws of this Realm, and that therefore it was both juft and reafonable that the King and Parliament might dii- penfe with fuch Laws, and accordingly they did difpenfe with the fame. For tho' fome of thofe which we call Ecclefiaftical Laws Were at firft made by a Foreign Prelate, yet being eftablifa- ed here by a long and continual ufage they are now become the Laws of the Land, and not to be difpenfed withal by that Power by which they were originally made but by the Queen herfelf. (d) And as (he may difpenfe with thofe Laws, fo (lie may par- don all Suits in the Ecclefiaftical Courts, which are pro refor- matio™ mornm, or pro Jaime anim*. Divorce. THIS is a Separation of a married Man and Woman by the Sentance of an Ecclefiajiical Judge qualified to pro- nounce the fame. Tho* the Sentence is now given by fuch a Judge, yet ori- ginally the Church had no Power to Divorce for inceftuous Marriages, andfoto Baftardize the iflue, for theie were Acts to be done by the Civil Powers, and by the Coertion of fuch Laws to which the parties were locally liibjeCt ; the Church had only Power to prohibit fuch Perfons from receiving the Communion with the reft of the Chriftians. But notwithftanding the Spiritual Court hath now a Ju- rifdictionin this cafe, yet the Judge is retrained in this part of his Judicature by feveral Canons; as for inftance, OO 0?) He fhall not give Judgment upon the confeffion of the Parties alone without any other Proof. (20 (f) The Sentence muft be pronounced in open Court in the Seat of Juftice, but not without the knowledge of the Archbiftiop, Bilhop of the Diocels, or Dean of the Arches. ^3) (g) And that in all Sentences of Divorce a menfn& thoro the parties give Bond not to Marry during each others Life. (/?) The Judge offending in the Premifes, fhall be fufpen- ded from his Office for a Year, and the Sentence of Divorce fliail be void. (d) j- Rep. j 1, (*)Cvwn 105. (/) Ginon 106, (g)C;uion 107. [b) Canon 108. ' R 4 Th?r$ 148 Dtoojce* There are federal caufes of Divorce, of which our Law takes notice. (i.) Pracontrttt. (2). Confanguinity, Affinity, Impuberty, (3.) Frigidity. Ancitheleare a vinculo Matrimoni). (4.) Adultery, Fornication, Propter faviti am. And thefe are only a Menfa & thoro. In all thofe Cafes where the Divorce is a vinculo matrimonij the Marriage was not deiure, becaufeit was void abinitio, for where the incapacity arifes by rcaibn of any matter precedent to the Marriage, there 'tis only de fafto, and the Sentence of Divorce in fuch cafe is only declaratory, that the Marriage is diiToJved, for it was abfolutely void before ; (i) and either of the Parties might Marry again tho' the other was living. But 'tis other vnfe where the Divorce is occafioned ex caufl fubfequenti as in cafes of Adultery, Fornication, &c. for there the Marriage being once good, or as my Lord Coke (i) calls it ju/la nnptU can never be dilTolved, becaufe fuch fiib- icquent Caufe cannot efted the bond of Marriage, tho' 'tis Sufficient to feparate the parties a menfa & thoro, which is in the nature of a temporal but not a perpetual Divorce, and if either of the Parties Marry again, the other being living, fuch Marriage is void, and fo it was adjudged in the cafe of Rye and Fulcomb (/). And as a farther confirmation of the Law in this matter^ it was adjudged about two years afterwards that a Divorce (m) caufa adulterij is no Bar oi Dower which (hews that the Marriage is not dilTolved. But tho' it (till continues, yet fuch a Divorce a menfa & ihoro doth proteel each party from being a Felon, tho' they marry again the other being living, for Pol i gamy was not Felony till made fo by the Statute Anno 1 Jac. cap. 11. in which there is a Provifo, that it fhall not extend to Perfons legally divorced. * Tis true the Court Anno 1 2 Car. Cro. 461. doubted of this matter in Porejc's Cafe where the Divorce was propter favitiam of the Husband, and the Woman married again, her firit Husband being then alive, but no reafon was given for this doubt, only that many inconveniences might enfue Divorces upon fuch a pretence, and therefore they adviied the Woman to get a Pardon, tho5 the Divorce in this caieis grounded upon (/) C o. vi:~. -S57, {.58. ({) 3 In ft, So, (/) Noy ioo. Moor. {m) Noy *■/■: G: bo 24;, . : . natural natural Right, and like a Divorce, for Adultery is never to be allowed upon the confcllion of the Parties, but upon plain Proof. £jccontract.] I fhall now treat of the feveral caulcs of Divorce before-mentioned, and tirft of Precontract. This makes a nullety of the Marriage *b initio ; but. if a Man marrieth a Woman who is {n) precontracted to another, and hath Children by her they are his Childien till the Di- vorce, and then they are Baftards. A Precontract is called a Marriage per verba de praftnti tempore, now if after fuch a contract the (0; Woman marrieth another, the Man with whom (he contracted, may compel her by a Sentence in the Spiritual Court to marry him with- out making the other Man whom ilie actually married a party to the Suit, and without any Sentence of Divorce as to that Marriage, and if they Marry after fuch Sentence, their Children fhall be Legitimate, and this was Buntings Cafe. Confangutnitp and 3&fftnitl?«] I fhall in the next place treat of Confanguinity and Affinity in the prohibited degrees, one of which is a relation arifing out of nearnels of Blood, the other out of Marriage. Cajetan was of Opinion, that the Laws concerning Mar- riage in Leviticus did not bind the Chriftian Church, becaufe they were only pofitive Precepts given to the Jews, and there- fore were binding to them only, and not to Chriftians. But this feems to be a miftaken Opinion, for Marriage was inftituted in a pure State of Innocence, tho' it was after- wards corrupted by the inceituous Conlociations of Kindred in the very neareft Degrees, which was lilpenfed withal in thofe early Days, till the World was competently Peopled, for at firft the Marriage of a Brother with a Sifter of the whole Blood was not thought unnatural but ncceflary, it was en- joyned by the pofitive Command of God, which was to en- creafe and multiply ; and if Adams Sons had not gone into their Si(ters, I cannot fee how the World had been encreafed ; fo that Brothers marrying their own Sifters feems to be coeval with Mankind. After the Flood many Marriages which were afterward pro- hibited by Mofes, were not only Lawful, but rewarded with particular Blefllings, as that of Abraham with Sarah, who was his half Sifter by the Mothers fide, which was exprefly pro- hibited in Leviticus (p), (viz,.) Thou (l?alt not difcover the jhame of thy Sifter the daughter of thy Father. In) 2 Inft.93. (0 Moor 109 4 Rep. 29. (/>) Lev. 18. vcr. 9- And i$'o IDtboict And even Mofes himfelf was born of an inceftuou Mar- riage between Amrajn2LT\& JocbobedCq), who was his Fathers Sitter, which is within the Levitical Degrees (r). But that primitive Blefling which was originally given by God himielf to Adam in Paradife, that he fhould be Fruitful and Multiply, and replenifh the Earth, was reftrained by Mofes after the World was peopled, by laving down Rules and prohibitions concerning the degrees of Kindred and Af- finity, which he formerly and particularly gave to the Man, but none to the Woman, yet the reafon of one extends to the other. Now 'tis to be obferved, that the Prohibition was given to the Man, becaufe in the A6t of uncovering the nakednefs, &c. he is properly the firft Agent, and the^ Woman is only confenting to it, for 'tis as impofTible that fhe fhould uncover his nakednefs as 'tis for her toravifh him. Some of thofe Rules are moral Precepts and declarative of the Law of Nature itfelf, and by confequence were not only obliging to the Jews, but to all Chriftian People ; as for in- flance, in the defcending Line a Man is prohibited to Marry his Daughter or Grandanghter, and as to nearnefs of Blood in that Line, the Prohibition goes no farther, but morally it extends to all others defcended from him, tho* never fo re- mote, and the reafon is given by the learned Grotins ( f) be- caufe, tho* the Wife is fubordinate to the Husband by the Laws of Marriage, yet that allows fo great a familiarity be- tween them as is not confident with a duty of a Child to a Parent, for in the afcending Line the prohibition goes no far- than the Marriage with ones Mother in exprefs terms, but all degrees upwards in that Line are equally prohibited, tho' not exprefTed, fo that there can be no lawful Marriage either in the defcending or afcending Line of Generation. Now the re(t of the Levitical prohibitions in cafes of Mar- riage feem to be warranted by God himfelf (t) for when a certain Sect of the unbelieving Pharifees were of Opinion, that they ought to keep the Law of Mofes, and fome of them who came from Judea had taught the Gentiles that they could not other wife be faved, when thefe Men could not be convinced to the contrary by the Arguments of St. Paul and Barnxbju,\hcy went together to Jerufalem where a great Coun- cil of the Apottles and Elders were aflembled to determine this matter, and Peter who was their Speaker, told the Peo- (q) 6F.xod. so. cr) :8 Lev. iz. (/) Ce ju^ belli, Lib. 2. cap. J« '.) A-£h 1 j. £>foo?ce« 151 pie that thefe Men tempted God by their Opinions to put a Yoak upon the necks of the Difciples, which neither they or their Fathers were able to bear ; the refult of this Council was (as it appears by the Letter which they lent to Antioch) that it feemed good to the Holy Ghoft, and to them to lay upon the Gentiles no greater burthen then thole four neceffary things; (1.) To abftain from Meats offered to Idols : (2.) From Blood. (3.) From things ftrangled, (4.) And from porneu, which our Tnyiflation hath ren- dered Fornication, but in the Septttagint it flgnifies any unlaw- ful or inceftuous Copulation. It could not be fimple Fornication, becaufe by the very Law of Mofcs, that was fatisfied by the marriage of the Maa with the Woman, and frequently by a pecuniary com- penfation. So where St. Paul in his Epiftle to his Corinthians («) con- demns the marriage with his Fathers Wife, becaufe it was a Fornication not io much as named amongft the Gentiles, this could not be intended of a fimple Fornication, but of any in- ceftuous Marriage. Another of thofe Prohibitions is, that a Man (Lall not dis- cover the nakednefs of his Brother s Wife. Tistobe obferved, that before this Prohibition, it was not only lawful, but a Man ought to marry his Brother's Wife if he died without IUue, and the raifing up Seed to him was called the doing the Office of a Kinfman, as in the cafe of Onan (x) before the Law. • After the Law this was fo well known amongft the Evan- gelifts, that when the Sadducees (y) who denied the Refur- redion, told our Saviour that Mofes laid, if a Man died without Children, his Brother fhould marry his Widow, and raife up Seed to his dead Brother ; and having likewife told him, that one amongft them had married feven Bro- thers fuccefliively, and asked him whofe Wife fhe fhould be at the Refurre&ion ? Our Saviour did not condemn the Cu- ftom, or take notice that the Marriage was unlawful, but anfvvered the Queftion plainly, {viz,.) That at the refurretl'm there was no marrying, &c. But tho' this Law was not binding to the Jem, unlefs the dead Brother had no IfTue; yet 'tis obligatory to' us Chrifti- ans in the ttrift fcnfe and acceptation of the words j for St, W x Cor. s. 1. (x) 38 Gen. 8. 25 Dcut. 5. (;) 22 Matt. 23. Jo/ju 151 Otiojce; JohnBaptiji told Herod Matt. 14. 4. it was unlawful for him to marry his Brothers Wife. There is another degree of Affinity which refembles this, and 'tis where a Man marries his Wives Sifter, this is likewife within the Livitical degrees. But fome Arguments have been invented to prove that the reafon is not the fame in thefe cafes, for the Text (hews upon what account one Brother (hall not marry the Widow of his deceaied Brother, viz,, becaufe he fhould not difcover the nakednefs of his Brothers Wife. Now that can be no reafon againft a Man's marrying his Wifes Sifter, becaufe it muft be prefumed, that he hath un- covered his firft Wife's nakednefs before he married her Sifter. The Scripture which concerns this cafe is in thefe words, viz,, (a) Thou /halt not take a Wife to her fifter to vex her to un- cover her nakednefs, be fides the other, in l)et life time, which im- plies that it may be done after one Sifter is dead, for then ihe cannot be vexed. It was the Opinion of Grotitu (b) that thofe words ought not to be underftood as an indefinite Prohibition that one Man fhould not marry two Sifters, but that he fhould not have them at the fame time, and he tells us, that by an Apo- ftolical Canon (c) fuch Marriages were not condemned as finful but inconvenient, and the punifhment was that the perfbn fo marrying could not be admitted into the order of a Prieft : But fome are of Opinion that the faid Canon cannot be underftood of having two Sifters at the fame time, for that was never permitted amongft Chfciftians, therefore it muftbe intended of marrying one Sifter after the death of another, and if that was lawful when that Canon was made, why was there any punishment inflidted for doing a lawful Act ? if it was unlawful at that time, how come it to be lawful fjnee ? A degree a little more remote, is the (d) marrying the Wives Sifters Daughter', there was a Libel in the Spiritual Court againft the Parties thus married, and they proceed thereto Excommunication, but a prohibition was granted, and the Defendant demurred upon it, but it doth not appear what became of the cafe, yet my Lord Vaughan (e) tells u?, that in the very like cafe a prohibition was denied, tho5 this marriage is not expreflv within the Leviticat degrees, but becaufe Mar- riages more remote are forbidden, the high CommifTioners U) Ley. 18. 1 5. fb) Dcjurc belli, lib- 2. cap. 5. part i± f>J Canon i&. {d)S\&. 4J«. (•; Vdvgh. ic-6. 2 Vent. 9- gave.. Dttiojce* i $ 3 gave Sentence of Divorce (/) in fuch Cafe, and upon a mo- tion for a Prohibition upon the Statute 32 lien. 8. it was de- nied, becaufc the Court never Prohibits in Cafes of Marriage, but where they are out of the Levitical degrees, and this was Maris Cafe. Tis true, Serj. Moor hath reported the fame . Cafe to the contrary, viz,. That a Prohibition was granted be- caufe it was a Marriage not Prohibited, but this might be up- on the firft debate of the Cafe; for my Lord Van^hm tells us, that at flrft Prohibitions were granted upon the (g) Statute, in Cafes which were notfpecifically mentioned in the 1 8th of Leviticus , but that upon confideration of the degrees therein. Prohibited, confultations were afterwards granted, becaufe fome Marriages muft be Prohibited which are not nominally expreiled in that Chapter, as the Marriage of the Father with his own Daughter. So where a Man Married his Sifters Daughter, this is not within the Levitical degrees ; and this was (h) Sir Giles Ailing- tori s Cafe, but Huntley tells us, it was the Daughter of his half Sifter, by the Father's fide, and that he was fined 10000/. committed, excommunicated and Divorced. A Man Married his great Aunt, being the (i) Widow of his Grandfathers Brother, by the Mothers fide, and this was not held Inceftuous; but Marrying with an Aunt is Prohibit- ed, becaufe 'tis a Contradiction that fhe fhould be inferior to her Husband in point of Marriage, and fuperior to him in point of Parentage. The reafon is not the fame where the (k) Uncle Married the Ncice, becaufe he is fuperior in both refpeds, but yet in iuch cafe a confutation was granted. But now by the Statute 32 Hen. 8. cap. 38. all Marriages are declared to be lawful between Perfons who are not Pro- hibited by God's Law to Marry, and thatnorefervation or prohibition (God's Law excepted) (hall impeach any Mar- riage within the Lcvitical degrees, which are as follow ; *Q CTu' EIiz- 22%- M°°r m- Perfons precontradted, and thofe which are naturally Impotent are prohibited by God's Law to Mar- ry, becaufe the end of Marriage is fruftrated where there is a natural Impotency in either Sex, and yet fuch Marriages are not prohibited by the Laws of Mofes. 3Jmpubcrtf . ] Marriages infra whiles annos are unlawful ; now the Age of confent for a Man is 14 Years, and for a Woman 1 2 Years, and therefore if Two are Married before * I HI ■ '!» ■- W^' '»■ — ■■■ —..'■■.■■■■ the i$6 SDHMIJtt^ the Age of confent and are Divorced for that Reafon after they come to full Age, the Woman may have an Affize for (a) Lands given to them in Frank Marriage, which fh'ews that the Bond of Marriage is diflolved, for otherwife fhe could not have an Affize agajnft her Husband. It was for this Caufe that (b) Kenn was Divorced, and thereupon a Queftion did arife, (viz,.) he had lflue by his Wife from whom he was Divorced, and afterwards he Mar- ried again, his firft Wife being Living, and he had likewife IiTue by his fecond Wife, which Marriage was by fentence in the Ecclefiaftical Court declared to be lawful after his Death, the Queftion in the Court of Wrards was, who fhould be his lawful Heir ? and it was adjudged that the Daughter of his fecond Wife fhould inherit ; for trip1 it was proved that he lived with his fir ft Wife 10 Years before the Divorce, and were both of Age of confent, vet fuch confent fhould not be averred again ft a Sentence of Divorce, fo long as it ftood un- repealed, becauie the Ecclefiafticai judge had declared the Marriage void, and he is Judge as well of the Age of confent as the Original Contrail. Tistrue, iuch Sentence of Divorce might be Repealed after the Death of one of the Parties, in an Action at Common Law, where the confent may be proved, when the Parties werc'of Age, for the Divorce for Impuberty is but Evidence, and not conclufive, becaufe the matter is properly triable in the Temporal Courts. But tho' a Divorce may be repealed after the death of the Parties, yet a Sentence of Divorce fhall never be given after their death, for that would be to Baftardize their lflue. Now, he who would Baftardize an (c) Heir muft make the Marriage void, by fomc judgment legally executed, but that cannot be done after the death of one of the Parties, becaufe the Marriage is then determined. ifjfgt&ttt . ] This is a Term which relates only to the Man, who hath a perpetual inability to Generation, and 'tis called &rotundo or impotency, when it relates to a Woman. As to this matter there happened a very remarkable Cafe, Amio 40, O* 41 Elit. which was thus ; The Wife of one (d) Bury was Divorced from him caufo- frigiditatis, it appearing that for Thiee Years after the Mar- riage fhe remanfit virgo intafta propter perpetnam inpotentiam of her Husband, he afterwards Married again, and his Wife had {a) Br, Abr. fo. 324. Plito 6. (*) 7 Rep. 42. (c) Bro.Abr. fo. 224. ?iiros-. (d) Moor 225. $Rep.?8. Etyer 17*. ^ Children, and the queftion was, whether they were legiti- mate or not, and adjudged that they were, becaufe Born during the Coverture, and before any Divorce had as to the fecond Marriage, which they agreed to be voidable, but that it continued a Marriage till it was difTolved. My Lord Coke tells us, a Writ of Error was brought upon this Judgment, and that it was afRrmel in the Queens-Bench upon great deliberation, but yet it feems to be a very hard Judgment, and the diftin&ion which is there made, (viz,.) that a Man may be habllis & inhabilis diver/Is timporibus, is not applicable to the circumftances of that Cafe ; 'tis true, a Man may be fo, where the inability is ex male ficio, but if a Mail hath a perpetual and natural impotency, 'tis iiripoilible he fiiouldbe babiliszt any time, and the Marriage in fuch Cafe is not voidable, but void abinitio. Tis to be obferved that the reafon of the Sentence before- mentioned is agreeable to the Civil Law, which requires that there fhould be a Cohabitation for three Years, for the trial of the difability, before any proof is allowed to the contrary, unlefs it plainly appears upon the Oath of able Phyilcians, and upon infpeclion of the Perfons, that the impotency is not accidental but natural, and incurable. To the like purpofe was the Lady £//c.vCa'fe, who, upon her Petition to King, James the firit, obtained a Commiffion under the Great Seal,direcled to the Archbifhop of Canterbury, and to 5 other Biftiops, &c. to proceed in a Caufe of nullity of Mar- riage, between the Earl cfEJfex and her felf, by reafon of his Frigidity. The Libel againft him was, that for Three Years after the Marriage they did cohabit as Man and Wife; but that be- fore, and fince the Marriage, he had a perpetual Impotency,, at lea ft in refpedt to her. The Earl replied, that he was frigidus quoad* Mam, but not as to any other Woman, for he found that (he was not apta to have Children. Thereupon the CommiiTToners appointed Three Ladies and Two Mid wives to infpeel her, who returned that fhe was apta9 and becaufe the Law prefumes that where there is Three Years cohabitation after Marriage, & nif ad copulam, there mufi be impotentia coeundi in viro> which difability, whether it proceeds from any natural defect, or by any other accident whatfoever, yet if it preceede the Marriage, it fhall convict the Man of Impotency, and by confequence make it void. 3toulter?« ] For Adultery there may be a Divorce, a Men- I a & thoro, but the Marriage ftill continues ; therefore, if the § Bus- I58 Dffcojce, CO Husband after fuch a Divorce releafes a Bond made to his Wife before the Coverture, 'tis good. But yet after fuch a Divorce the (/) Wife may Sue alone in the Spiritual Coort, for a Defamation, and the Husband's releaie in inch Cafe is not good, becauie the Suit was meerly for a Spiritual matter, 'tis to re (tore her to her Credit and Reputation, and the Colls are not given to recompence any Damage, but only pro Expenfu litis] io nothing is vefted in the Husband upon which thisReleafe might operate. 'lis true, if after fuch a Divorce the Woman will Sue alone for a Legacy, the Releafe of the, Husband (hall be good, be- cause thc(g) Legacy was once veiled in him by the Intermar- riage ; and the Suit brought by the Woman was for a real In- terest in the thing it felf, which (he had bit by the Intermar- riage. St. Alatbsw tells us, That whofoever fhall put away bis Wife (except 'tis for Fornication) and /ball Marry another , committeth Adultery ; (If) from whence it hath been concluded , that where the Divorce is for Fornication, the Innocent Perfon might marry again without being Adulterous. But the words of the other Evangelitts being general, and without any exception, are indifinitely againn1 Marriages, aftet any manner of Divorce, as thus, [i) Whofoever [hall pat away bis Wife, and Marrkth another •, committeth Adultery j and whofoever Marrieth her who is put away committeth Adultery ; and (k) Sr. Paul tells us, That the Wife fhould not depart from her Hvu- band, but if /he d parts let her remain unmarried. Now the Aniwer to this may be, That where an infpired Writer affeits a thing felly in one place, and not fo full in another, that mull be expounded by the place which is molt full. Tis probable, that upon the Authority of thefe Scriptures the (*) Canon Law is againit Second Marriage, after any Divorce, whilft both Parties are Living, by which Law there is areftraintin the very Sentence it felf, (viz,.) that the Par- ties feparated a Mmfa & tbon, fhall live chaftly, and not Marry during each others Life, and that no Sentence of Di- vorce (hall be pronounced until the Party requiring the fame ihali give good Security and Caution to the Court not to break the faid Prohibition ; and if the Judge (hall give Sentence in any other manner, (/) he'ihal! be futpended from the exercife efhisOihcefor a Year, and that the Sentence (hall be void. (*)CroiEliz 90S* Moor 605. 63 J. (J) 1 Rol. Rep. 426. 2 Rol. Abr> 298. (/) 2 Pel. Abr. 301. 0>) 19 Mat. 9. (i) 10 Mark II. 16 Luke *9. (Ox Cor: 7. 1 1. O Canon J07; (/) Canwn©** Now%, Now, in all thefe Sentences of Divorce, or rather. Separa- tion, a Menf* & thoro, the Civil Law requires that there fhouldbe thisClaufe, (viz,. Dittos J. & S. fciliat. partes Mas qu) as all other Clergy-men are bound to do ; and if 'tis a Benefice with cure of Souls, he mutt fubfcribe the 39 Articles. But it hath been a Quettion whether a Donative can be a Benefice veitb cure, &c. becaufe in the ftri6t acceptation of that word, it fjgnifies a Living which is gained by Inftituti- on and Induction, which is agreeable to the (c) Canon Law, (viz,.) that all Ecclefiaitical Livings fhall be had by Inftitu- tion either by the Bifhop or his Chancellor, or by thofe who have Epifc opal jurifdiclion, and without fuch Inftitution a Benefice can neither be lawfully had or retained, but there are fomelnftances to the contrary. For the Church of the Tower 'ef London is a Donative, and in the Queen's Gift, and 'tis a Benefice with cure of Souls, and the incumbent comts in without inftitution, &c. Neither doth every Inftiuuion fuppofea cure a Souls, for the Queen hath feveral Donatives in Wales (d), but yet the incumbents are inftituted by their refpeclive Ordinaries. The Deans of Cathedrals do not come to their Deanries by Inftitution, and in that they refemble Donatives, but they are not fo, becaufe they are fubje6t to Epifcopal Vifitationsj behdes, their Grants of any of their PofTefTions mutt be con- firmed by the Bifhop and Chapter, tho* the Queen is Patro- U\ Co Lit. 344 2 Roll. Abr, 542. (b) 14. Car 2 1 W. & M. (0 Decr.o<; Lib. 3- («0 Sid. $27. • nefs DonatiDe, 16$ nefs or the Deanry, but Grants made by incumbents of Do- natives mult be confirmed by the Patron. As to the Patrons being compelled to prefent by Ecclefi- aftical Cenfures, my Lord Rolls (e) tells us, that it was ad- judged to the contrary in Fairchild and G^r/s Cafe, that the Ordinary may iequefter the Living in cafe of refufal, and that he may deprive the incumbent if he fees juft caufe, in both which points I think he is mi lb ken. This cafe is reported in teveral Books, which I have perufed and can find no fuch thing (f), but rather the contrary, for Jujike Croke doth not mention either the iequeftration of the Profits, or deprivation of the Incumbent : Brownkw hath transcribed this cafe out of Telvertony verbatim, where we find the Chief Juftice Pophamof Opinion, that if an Incum- bent of a Donative preaches Herefy, the Ordinary may correct him, for his Peribn is not exempted from that JurifdidVion tbo' the place is. But the other Judges were of a contrary Opinion, (viz,) that his Perfon is privileged by reafon of tfce place j that the Patron and not the Ordinary may deprive him if he hath a juft Caufe fo todo,and ib 'tis in Serjeant Moors Report,(>/^.) That he is fubjecl to the Vifitation and Correction of the Pa- tron, but neither of them fpeak any thing of a fequeftration by the Ordinary. *Tis therefore the undoubted right of the Patron to vifit and deprive • but if the incumbent will refign, it mult be to him and not to the Ordinary, and if he is difturbed in collating his Clerk, he may have a Outre impedit againft the Bifhop and theDifturber, but that would be to admit himfelf out of PoiTefllon, and therefore 'tis more advifable to try the right in an Ejectment or in an Action of Trefpafs, in which the Plaintiff mutt certainly recover, becaufe a Donative cannot be filled by Prefentation. But if he fhould recover in a Quere impedit the Writ muft be directed to the Sheriff to put the Clerk in PoiTeiTion. Now this right which the Patron hath to vifit comes thus, (viz,.) if the Queen doth found a Church or Chappel, (The may exempt it from the Vifitation of the Bifhop, and in (uch cale the Lord Chancellor may vifit by vertue of a Special CommilTion for that purpofe 3 But if fhe gives Licenfe to a Subjed to found a Church or Chappel, and exempts it from the Jurifdi&ion of the Ordinary ; 'tis vifitable by the Foun- (e) 1 Roll. Rep. 452. (/) Crq. Elia.$53. 2 Cro. 63. Yd. i ?.VP»cr',6). X Browal. 20:. S 4 dsi 1 64 Duple* CUierela, der and his Heirs, and this was the original of all the Dona- tives in England. Duplex Querela. A S the Patron hath a remedy at Law by a Outre impedity * *■ where a Bifhop refufes to inftitute the Perfon prefented, fo likewife the Clerk hath a proper remedy in the EccleGattical Court, for he may complain to the Arches if he is refufed by a Bifhop, and to the Delegates where therefufalis by the Arcbbifhop; and upon this Complaint, the Dean of the Arches writes to the Bifhop in form* juris, which writing is called Duplex querela. Butbecaufeby the Canon * the Bifhop hath 28 days to inform himfelf of the fufficiency of the Clerk after the prefen- tation is tendered to him, therefore by the fame Canon 'tis enjoined that a Duplex querela (hall not be granted till that time is expired, and Oath made thereof, and that the Bifhop refufed to grant Institution , or enter into Bond with Sureties to prove the fame to be true, and this under pain of Sufpenfion of the Grantor from the Execution of his Office for half a Year, to be denounced by the Archbifhop, and that the Duplex querela {"hall be void, in which Canon there is a provifo that the Bifhop (hail not inftitute another in the mean time with prejudice to the perfon prefented Jubpmanullitatis. As to the form of thisRefcript, and the proceedings on it Jtis as followeth, Tis to contain a Monition that within five or nine days the Bifhop fhould admit the party complaining, and alfo a citation for him to appear by himfelf or Prodor at another day, in cafe he fhould refufe fo to do, and then to (liewcaule of his refufal, there is alfo an Inhibition to him purfuant to the Canon before mentioned, not to admit another pendente lite, Theproceedings upon it are thus, viz,, the Clerk who hath got the Prefentation mull procure fome Perfon to admonifh the Bifhop to admit him within the time mentioned in the Duplex querela, and three days afterwards the laid Clerk ought to apply himfelf to the Bifhop and pray infhtution, and tender himfelf to fubferibe the 39 Articles, and to take the Oaths of Supremacy and Canonical Obedience, and this he ought to do twice more infra dies prafcriptos in duplici querela^ and if he cannot be admitted to the prefence of the Bifhop, then he ought to make his Proteftation in the prefence of fome credible WitnefTes. [ • Czn,9Sl' ' The Duplet (IViineto* 16$ The Bifhop after fuch Admonition, refufing to admit the Clerk maybe cited by a Meflenger to appear, and if that cannot be done perfonally, then the Meflenger may acquaint the Bifhop's Servants, that he hath fuch a Citation ad Injhn- tiam R, B. to inftitute him to fuch a Benefice. Then after the day en which he ihould have appeal 'd, if he had been perfonally cited the Court will decree a Citation. viis & modisy which mutt be perfonally executed if that can be done, if not, then it mult be fixed to the outward Doors of his Palace, Houfe, or Cathedral. Afterwards the day of executing the Monition and the In- hibition, the feveral days on which the Clerk praied Inftitu- tion, the day of his citing the Bifhop and of his refufal to admit, &c. are to be certified by the Perfon citing, and this is to be done on the back of the Duplex querela. Then the Bifhop after three Proclamations is adjudged Contumax, and the Judge pronounces the right of Institution to be divolved on him, and decrees that the Clerk fhall be inftituted, and that he will write to the Archdeacon to in- dud him. Then the Clerk mull: apply himfelf to the Archbifhop to examine him, and if he approves him, then he writes to the Judge fiat inftitutio, but before he is initituted 'tis ufual for the Oerk to give Bond to indemnifie the Judge. If the Bifhop doth appear and alledge a Caufe of his refu- fal to admit the Perfon, as that the Church is full, or that the Perfon prefentei is a Simonaick, unlearned, &c. then they are to proceed to Tryal, and if the Bifhop fails in his proof, then the Judge pronounces Sentence tor his own Juris- diction, and condemns the Bifhop in Cotts. But if the Bifhop will not defend the Suit, the pretended Incumbent may do it, and alledgethat the Church is full of himfelf, but then the Judge will firft pronounce Sentence for his own Jurifdiclion, becaufe the Bifhop hath alledged no- thing to oppofe it. But if the Bifhop will allow fuch Incumbent to defend the Suit in his own name, then the Judge cannot decree for bis own Jurifdiclion until the Caufe is determined. And in this cafe where the Bifhop appears and refufes to inftitute, 'tis not a fufheient caufe for him to alledge that two Perfons are prefented to the fame Living, and lb the Church is become litigious, becaufe, if it was fo, he ought to pro- peed upon a jhs patronatHi to try the right, but if not, and one ofthem appears to the Judge to be incapable or otherwif c deficient, he may admit the other without any Inquifition up- on 1 66 Duple* faumul on a. jtts patronatus, becaufe the right of Inftitution is pro bac vice devolved en him through the negligence of the Bifhop. There are not many inftances of this way of proceeding in our Books, lome there are. Sir Timothy Huttons (g) Clerk was inftituted by the Arch- bifhopof Tori 9 and inducted by his Warrant upon the refu- fal of the Bifhop of defer to admit him. JTis true, there was another prefented to the Church who fued the Incumbent in the Delegates, fuggefting that his In- ftitution was void, becaufe it was done by the Archbiihop out of his Provence in time of Parliament atWejlminffer, and by confequence the induction mult be void, but a Prohibiti- on was granted, becaufe the Church was full by induction which is a temporal Act, and which (hall never be avoided but by a Suit in the Temporal Courts : Therefore a Duplex querela will not be a proper remedy where another Perfon is inducted, but if two Patrons pre- tending a Title (Jo) to prefent, do each of them grant a Pre- fentation to his Clerk, and the Bifhop refufeth one who brings his Duplex querela, and upon that obtains Inftitution and Induction, and afterwards the Bifhop grants Inftitution to the other, the Suit fhall ftill go on in the Spiritual Court to punifh the Bifhop for a contempt in granting Inftitution after an Inhibition, and pendente lite,, but quoad the incum- bency a Prohibition was granded. But in fuch cafe (i) if the Bifhop had refufed both their Clerks, and then one of the Patrons had brought a Quare im- pedit againft him, and pending that Writ a Duplex querela had been brought by the other,' and upon the neglect of the Bifhop to appear, the Archbifhop had granted Inftitution to the Clerk of that Patron, tho' he had been Incumbent for fix Months, yet he fhould be removed if the other Patron recover in the Ouzre impedit becaufe he came in pendente lite. This way of proceeding againft the Bifhop is proper where the refufal is for incapacity or any other perfbnal defect in the Clerk, becaufe thefe are Caufes which the Spiritual Judge may try. So if the refufal is upon pretence that the Church is full, becaufe the plenarty arifmg upon Inftitution fhall be tried by the Certificate of the Bifhop. (g) Rob, is. ('0 Moor Sj9. i Leon. 1S1. (') 2 RolK Abr. 3£* Moot 572. Ecckfiajlkd 167 Ecclefiafiical Law. See Canons. HpHO' the Common law isdiftincl from the EcclcGaftical, -*• yet 'tis not cxclufive of it, for both are confident with the Rights and Liberties of the People, and both are e(tabli(h» cd upon the fame Foundation, for as the Common Law by which our Civil Rights are determined, is made up of liich Cuftoms wjbich by the general con lent of the People, have time out of mind obtained the force of Laws, lb the Ecclefi- aftical Law is m^de up of fuch Canons and Conltitutions which have been received and approved by the People, and which by immemorial praclife have been uied in our Natio- nal Church. This Church is divided into two Provences and governed by two Archbifhops, who have a right to confecrate fuffragan. Bifhops, to vifit each Diocefs within their refpe£Uve Pro- vences in fuch manner as is iettied by Cuftom, the right of receiving Appeals in Ecciefiaftical Caufes, the cjattody of vacant Sees, &c. Then the Bifhops in each Diocefs have a right of JurifdicYi- on over their Clergy which is as ancient as Chriftianiiy it felf, for as foon as a Church was built, there was a Bithop fet over it who had Authority to proceed againft the Clergy ac- cording to the Canons. And to fhew that the Common Law doth not exclude the Spiritual Law, 'tis to be obferved, that when it was rdtored to our Anceftors by the Magna Charta of King John, the very firft Paragraph of that Charter fecurcs the Rights and Liber- ties of the Church, that is as my Lord Coke (k) tells us all their lawful Jurifdiclions. Now admitting that by Magna Charta it appears, that 'tis the fundamental right of the People to be tried by their Peers, that is, by Juries which is not ufed in the Spiritual Courts, yet this is no Argument that the proceedings in thofe Courts are inconfiftent with our Rights, for if it (hould, the fame may be alledged againft the Courts of Equity and Admiral- ty, who do not proceed according to the courfe of Common Law. Tis true thefe words in Magna Charta, Nee fiper eum ibi- wtis nee mittemus nifi per legale judicium parmmjuornm muft re- late to Trials by Juries, out then thofe words which imme- diately follow, (viz.) vel per legem term mutt extend to any (O ainft. 2, other 1 68 ffijKommutticatfoit; other cuflomary way of trial allowed by the Law of the Land. We often fay, that fuch a thing is fo at Common Law, by which we really mean, that it was fo according to the feudal Law received here, which was originally inftituted to keep the People under a military Service, and tho' it was a taw which had its rife from abroad, yet 'tis become part of the Common Law by being generally received here, as for inflance, 'tis part of the Common Law that Lands of Inheri- tance fhall lineally defcend; this is agreeable to the fendal Law, becaufe it was to go to him who was moft likely to perform fome military Service. I muft confefs, my Lord Coke gives another reafon for it (/), and 'tis a very weighty one, for he tells, that Lands defcend, becaufe they are ponderous, which reafon would hold in HolUnd as well as here, but there 'tis otherwife. Tis after this manner that feveral Canons made in Fo- reign Nations are now become part of the Laws of this Land3 not by vertue of any Authority from the Pope or any other Po- tentate, but by being received time out of mind, and allow- ed to pafs for Law amongft us, which together with thofe ancient Canons made in provincial Councils at home, and which have been received by a general confent, do make up the body of the Ecclefiaftical Laws of this Realm. Examination. See Bifbop. Exchange of Benefices. See Refignation. Excommunication. •"FIS certain this is a punilhment which for many Ages A hath been ufed in the Church by removing fcandalous and wicked Perions from receiving the Sacraments, and from the fellow fhip of Chriltiansin general, and that the Sentence was ufually pronounced by the Bifhop himfelf, and that af- ter Eccicfiaftical Courts were ettablifhed, it was always given in thofe Courts. And tho' by the depravity of this Age; this Difcipline is fo much defpifed, that 'tis lookt upon to be no more than Brutum fulmen, yet the Sentence itfelf is not the leis dreadful, for being contemned by Men of corrupt Principles, who had rather liveintheir fins then be reformed by Pennance. ' (0 fyt SUtcliffe'a Cafe. ''£\ cfrcomtmmf cation; 169 Tis a true cbfervation, that thofe Perfons who are the molt profligate in their Morals, who make a jeft of Religion, and who live fecurely in fin and follv, are likewife the only Men who repreient the cenfures of the Church to be infignificanfc Trifles, when the wiler part of mankind do believe that fueh ceniurcs are abfolutely neceffary, even upon the principals of natural Keafon ; for they were pradVifed by the Gentiles, who had no other light to dire&them, and likewife the Jews them- felves, to whom the will of God was revealed, and afterwards introduced into the Church by our Saviour himfelf. As to the Gentiles, it muft be admitted, that Government is abfolutely necefiary in all manner of Societies, and that 'tis impoflible they fhould fubfift without a power lodged fome- where to punifh thofe Perfons, who break the Ruljs and Orders by which the Government fhould be preferved. Therefore, amongft the Heathens, who had forms of Govern- ment in their Idolatrous Affemblies, there are feveral in fian- ces of their Priefts, excluding wicked Perfons from the Sacri- fices, and this was only by the inftigation of naturaj Reafon; Thus Lucan tells us of Peon. SolitHs templis arcere nocentes. And VirgiW Prietts, when they were about to Sacrifice to their Gods, made pubfick Proclamation to the People, — Procul) oh proctil efte prophani ! > Totoq; abfijh Luco. And this Monitory Excommunication was held io Sacred amongft them, that not a Man dared be prefentat the Sacri- fice, who was confcious to himfelf that he was then under the guilt of any notorious Crime. To come nearer home, thc)DrHidsywho were the chief Prietts amongtt the Barbarous Gads, forbid thofe Perlons who diib- beyed their decrees to approach their Sacrifices, and this was etteemed in thofe days to be the great eft punifhment that thofc Heathens could inflict on the Offenders, for they loft all con- verfation amongft Men, and were deprived of the benefit of the Law. Then as to the Jews, foine Men are of opinion, that what was done in the Patnarchial times was to be a guide to them when they became the peculiar People of God : There- fore, the catting Adam out of Paradice, the grievous ceniure upon Cain, the curfc of Neah upon Cham, for defpillng his Father, and that of Jacob upon his two Sons, Simeon and Le vi7 who had murthered the Shechemitts ; thefc and many more inftances (hew that God would have notorious Offenders caft out of his prefence, and that fuch were not worthy of the company of his People. 'Tis i/o ^communication* JTis very true, there are not many inftances of Excommu- nications under the Ceremonial Law, forne there are, as that of the {a) Tribes of Benjamin, which was pronounced in a Religious Affembly to be accurfed, and the People obliged them fe Ives by a Solemn Oath not to converfe with them. Now, the true reafon why we havefo few inttances of Ex- communications, under that Law, may be, becaufe the Go- vernment amongft the Jews was then a Theocracy. There was no manner of diftincYion between Temporal and Spiritual Courts, for the Priefts were vefted with a power to punifli all Offenders, and iome were punifhed by God himfeif in a pe- culiar manner, viz,, by (taking them with Leproflesas he did Miriam, Uz.zJab, Gehazi, &c. and this was an effectual Ex- communication, becaufe by the Jewifh Law, fuch Leprous Perfons were always excluded the Congregation of the Faith- ful. Sometimes lie punifhed Men with fudden Death, as Corah and his Companions; fo that it was not neceffary for the Priefts always to interpofe, and by their power to Excom- municate Immoral and Scandalous Men, becaufe God him- ielf often infiicled the puniihment on them : Befides, whilftthe Jews were thus governed, all little Of- fences were expiated by Sacrifices, and the Prieft reconciled the Offender to God and the Church ; and where God did not immediately punifli for great Offences, the Prieft always pronounced his Sentence, which ihew'd it was the Divine Will, that whiift the jews were under the State of Theocracy, lewd and vitious Perfons fhould be punifhed by thofe who were the Governors of the Church. Aftet the Birth of Chrift, and when the Jews became Tri- butary to the Romans, we find that the chief Men amongft them decreed, whofoever confeiTed Chrift fhould be Excom- municated. This made feveral of the Sanhedrin afraid, leaft they fhould be caft out of the Synagogue, and that was a punifhmentby Which Men were excluded from all Religious as well as Civil Converfation. I know Mr. Setdeh would have this cafting out of the Syna- gogue to be a punifli men t inflicted by the Temporal MagU ftrate, and to be only an interdict from Civil Commerce, be- caufe Temporal Affairs were tranfa6ted there. But the very notion of the word is enough to convince one that the cafting out of the the Synagogue was an interdict from (i) Tudg- 20. is* . Religious ffitcammunfcattonft. i7r Religious AfTemblies, becaufe at firft that was a place pear liarly let apart for Religious Worfhip, and always ufed for that purpofe, till the Jews were made fubjed to the Romans, and then fome caufes which they were unwilling to have redrei- ied by thofe Heathens were privately determined amongft: themfelves in their Synagogues, and fometimes offenders were puniftied there by Whipping. But this was contrary to the Eftablifhed ufage and Cuftom, for thofe were certainly places of Religious Worfhip, our Sa- viour himfelf takes notice that the Pharifees flood Praying in their Synagogues ; and becaufe throughout the whole Land of Canaan there was but one great Temple, where all the Jews aflembled at fome Solemn times in the Year, therefore itwas neceiTary that the letter places fliould be fit apart for Religi- ous Wofhip all the reft of the Year, and thole were their Sy- nagogues. Amongft the Chriftians there is a Church compofed of a Society or Corporation of Perfons Converted at firft by our Saviour and his Apoftles, to whom he gave the Government of that Society, and Laws and Rules diftind from the Civil State, and as in all other Governments, fo in this of the Church 'tis natural that a Power fliould be lodged at firft in thofe Spiritual Governors, and afterwards in their SuccefTors, to punifh thofe who tranfgrefs againft thofe Rules. Therefore, when St. Peter, in the name of the reft of the Apoftles, acknowledged Chrift to be the Son of God, he re- plied, thou art Peter, (which word in the Original fignjfics a Rock) upon which Rock (that is, upon the confeffion of his Faith in Chrift) he would build his Church, and then tells him that he would give them the Keys of the Kingdom of Heaven, and that whofoever he fhould bind in Earth fliould be bound in Heaven. 'Tis probable our Saviour might ufe this Metaphor of the Keys, becaufe the Church is ufually compared to a Houfe, the Keys whereof belong; to him who hath the chief care of the Family ; fo that the Keys which he gave to St. Peter and his SuccefTors, was only a power to admit fome Perfons into the Church, and exclude others by Excommunicating them from the company of the Faithful, and fince he gave them no Tem- poral Power, 'tis evident they have no other method to punifh Offenders, but by turning them out of the Communion of the Church, and this is not fuch an infignificant punifliment as fome Men fancy, for our Saviour pofitively, and without a Metaphor, tells us, that whofoever fins they remit, iliall be remitted, and whofoever they retain (hall be retained. Now, i72 eEjtcommttm'catfotn Now, the beft ExpoGtors of thefe words tells u% that by the pi'onoune (they) the Governors of the Church are fignified, that by remiflton is meant an abfolution upon Repentance, and by retaining we mult underftand a continuing impeni- tent, and to not capable of a Pardon under the guilt of Sins. So that where the Governors of the Church ground their cenfures upon a Do6trine which is true, and if it appears fo to the Perfon himfclf who is ceniiired, and yet he will obfti- nately defpife it, in fiich Cate he defpiies the Minifters of Chrift who fent them, in whofe name, and by whofe autho- rity the Sentence was pronounced. This being the original of Excommunication, I fhall now fhew that it hath been pracYifed ever fince in the Chriftian Church ; and that St. Peter, to whom this power was firft givai, was the fir ft who executed it, upon Symon Magm, for his Hypocrifie ; he was Baptized, and pretended to be a Be- liever, but it was to no other purpofebut that he might pur- chafe of the Apoftles a power of doing Miracles, for which he offered his Money, but St. Peter curfed him and his Money, and told him that he had neither part or fellowship with them. In like manner St. Paul delivered Hymeneus and Alexander unto Satan, and ordered the inceftuous Perfon at Corinth who had brought fuch a Scandal upon the Chriftian Religion, to be delivered likewife to Satan, which was the form of Ex- communication then ufed, and For a longtime afterwards. The Apoftles after they had planted Churches took care to veft the Bifliops whom they placed there with this power, and they executed it in the pureft Ages, upon Cerdon and Marcion, and fuch other Heretieks who lived foon after them ; and this they did a long time before the Empire became Chriftian, and by confequence before they had any power or afllftance from theTemporal Magiftrate. It was then that the nature of this Church Power was beft underftood, and as it was never ufed by the Apoftles but up- on great and extraordinary occafions, as upon thofe who Preached another Gofpcl, and upon fuch who did not love the Lord, fo it was never praclifed by thofe primite Bifhops but upon Apoftates, Heriticks and other very Scandalous Perfons, whom they would not fufTer to be in their Commu- nion, till by a fober and folemn profefflon of their Repentance, they were readmitted to fome part of Religious Worfhip, but they were not fuffered to ftand amongft the reft till they had palled throJ feveral degrees of Pennance, and fo were gradu- ally received into the Church 1 So ercommtotfcatfom 17? So that this power is for Edification, and not for DeRrucV ion, and never to be ufed but upon luch Sinners who are wil- ful and obltinate, and who live in a deliberate contempt to the Rules and Orders of the Church j and thofe Bifhops who were at firit vetted with this Power, and their SuccelYors, for many Ages, kept within the bounds of their Spiritual Juris- diction ; thev were always obedient themielvesto Magistrates, and never aiTumed any coercive power over the Eltatesor Bo- dies 0: Men. Pope Gregory VII. called Hiidebrand, was the fir ft who made uieof it, by depofmg Hen. 4, and this was net till the tith Centnry, and in the Reign of our William called the Conqueror. We have a famous inftance as to this matter, in the Cafe of Panl/is Samofatenfis, who was d poled from his Bifhoprick by the Council of Antioch, but he Hill kept p ^{lefTlon of the Palace, and the Fathers of that Council did not pretend to remove him, for that was done by the afHitance of the Empe- ror Aurclian. And 'tis obfervable, that thofe Bifhops had never greater reverence then when they alone exercifed this Spiritual Power of Excommunication, for then the Chriltians paid them to much refpeel, that they never travelled into Foreign Parts' without Credentials from their proper Bifhops ; fomc of which were called Commendatory Epiftles, and thofe were granted to* Perfons of note and diftin&ion ; fome were called Communi- catory Epiftlej, and thofe were granted to iiich Perfons who were in the Communion of the Church, and ibme were called EpijloU DimijforU, and thofe were granted to the Clergy when they were to fettle themfelves under another Bifhop, and all thefe Epiftles were comprehended under the general name of Liters Formate, becaufe they were written in a peculiar Form and Character. Tis a vain objection to alledge, that fince the Empire be- came Chriftian, the Civil Masiftrate had a Power to punifh all Crimes ; fo that now there is no neceflTity of Excommuni- • cation by the Church, for 'tis certain, that after Conftantim: time, the Bifhops did Excoriunui:i:ate without any alTiftance from the Magiitvate, and Arriiis himfelf was fir(t Excommu- nicated by the Bifhopof Alexandria, before any Application was made to the Empercr. This was theconltant prattife when Chriftianity was en- couraged, and when it was under no manner of Perlecution/ and in conformity to this practife it was declared by ieverat Councils, that it was a power legally vefted in Bifhops, but becaufe they might be futyect to. inrftakes, therefore Appeals 1 wer£ i74 (Crcommunf cation* were decreed from their cenfures to a Synod, but never to thfl Emperor. But as Aniir) Reign of Eih\ ^ the Bifhop of Hereford Excommunicated every Man who fhould Hunt in his Woods, •Parks, Chaces or Warren?, in Mdverm^ and catch Hares, Conies or Pheaiams theve, or eiiewhere in hisDiocefs. This and many mora Excommunications for fuch frivolous matters, made the People inienhble of the danger of fuch cchiures ; the contempt whereof hath gradually encreafed for many Ages, iuiomucb, that the Commiffioners in Edw. 6, Reigri, who were to reform the Ecclefiaftical Laws, amongft the reft, thought it proper to reduce Excommunication nearer to its primitive inilituiion, and therefore they were of opinion (.a) Qlf) •;. •( >> (k) a Rol Abr, 177, that CMomitomfcatfon. 17 s that it never ought to be denounced, but for obflinacy in great Faults, and that the Judge who was to give the Sentence ihould be afliltct by a Jurtice of the Peace, and the Miniiter of the Pariln where the offender lived, together with two or three more learned Presbyters, in whole presence the canfe was to be examined, and then Sentence mnfa be siven, and afterwards put into Writing, and tranfmirted to the Minittei of the Parifh, &c. and to fome neighbouring Mi miler, and then no Perfon was to Eat or Drink with him, except hie own Family, and if they did, being admoniilied to the: contrary, they were alfo to be Excommunicated ; and if the offender continued 40 days under the Sentence without (hewing any Repentance, then the Bi (hop was to certifie it into the Chan- cery, upon which Certificate the Writ de Exesmunicato Capi- endo was 'to be lilued, and always di reeled to the Sheriff, by virtue whereof the Perfbn was to be taken, and committed without Bail, until he-conform, and he could never avoid this Sentence by an Appeal, becaufe the legality of it is to be de- tetermined by an Ecclefiattical Judge-. Before I ihall particularly Treat of this Certificate, and the Writ, which is grounded upon it, 1 muft take notice of ano- • thcr fort of Excommunication invented, by the Canonifts, which is mentioned likewife-in our (a) Statutes, and that is an Excommunication ipfofatlo, which is major Ex commie -at to , for 'tis a Rule amongft them, that Excomnnicatio fimpliciter prolata intelligendum eft de majori. Now, tho' in this Cafe the Party is both by the Canon and Statute really and in fad Excommunicated, without any for- mal Sentence, yet fuch an Excommunication hath no effect at Common Law, without a declaratory Sentence pronoun- ced by an Ecclefialtical Judge. I grant, that fome Sentences of Excommunication have been denounced in Parliament, as againlt. the infringers of Magna Charta, which, tho' done in a Secular Court, yet is not altogether the Sentence of Laymen ; for it might be their agreement to the Opinions of the Bifhops, who were then af« fembled in Parliament. So, ftriking in the Church or Churchyard is Excommuni- cation ipfo fatto, by the Statute of 5 & 6. Edw.6. but this is not only a Confirmation of many Canons, but tends purely to the Peace of the Chur«h. Upon the whole matter, Excommunication is a punish- ment which hath been always ufed in the Church to reform T 2 Offenders, 176 <£tcoumumfcatfott* Offender?, 'tis neceiTary upon the principles of natural Re,a~ ion, for it was pracufed by the Gentiles who had no other light to direct them, andtho' there are not many inftances of this Punifhment urtder the Moiaical Difpenfation, it was, because the Government of the Jews was then a Theocracy, and the Offenders were punifhed by God himfelf. That under the Gofpel Diipenlation our Saviour gave the Power of the Keys to St. Peter, that he might admit iome and Excommunicate others out of the Church ; that St.. Peter ex- ecuted this cenfurc upon Symon Magus, and that St. Paul did the like upon Hymcneus and Alexander, and the Incelluous Perfon at Corinth. That the Apoftles vetted the primitive Bilhops with this power which they pra&iied in the firftand pureft Ages of the Church upon Hereticks, Apottates, and for other grievous Of- fences, and that whilft the Bifhops exercifed this Spiritual Ju- rifdidion only in extraordinary Cafes, the People did not on- ly reverence their Perfon?, but Rood in greater awe of the Sen- tence, by reafon of the Authority of him who denounced it* But when they aflumed an exorbitant Power over the Per- fons and Eltates of Men, when they called upon the Civil Magiiirate to aflilt them, which afterwards was the occafion that the Spiritual and Temporal Courts encroached upon each other in point of Junfdiclion, when the Canonifts had in- vented fo many forts of Excommunication that they made it intricate, and animofkies encreafmg amongft different Parties, thai they Excommunicated one another for trifles. This wasfuch a derogation from its primitive Inftitution, that the Sentence came to be defpifed by Men ofdiiorderly Principles, and not to carry that awe with it as it did at firft : However, the Church is (till vetted with this Power, and particularly amongft us ; and the Temporal Courts never grant Prohibitions in cafes of Excommunication. This appears by the Parliament Anno 9 Ed. 2. in which it was enacted, That Excommunicated Perfons ihould not be replevied by the Kings Writ, and by the Statute circumfpette ajratis (a) which prohibites the temporal Courts to punifh the Clergy for infliclmg Pennance enjoined by Prelates for For- nication, Adultery, Oc. and by the Charter of Ed. 2. which declares that Letters fhali never be fent to the Ordinary to abtolveany Perfon from Excommunication, but where 'tis againft his prerogative. And tfjccomtmmfcatfo!!* 177 And tho' our Kings have fcmctimes fent their Mandatory Writs to Bifhops to compel them to revoak Excommunicati- ons, yet it was never done, but in cafes where they had abufed their Power to the oppreffion of the Subject. I (hall now mention fomething concerning, (1.) The effect of Excommunication by our Law. (2.) The nature of the Certificate or Significtvit. (3.3 The Writ de Excommunicato capiendo* (4.3 The Writ, de Ca-H.hne admttenda. (i.) As to the firft of thefe particulars 'tis held, that whilft a Perfon is under this Sentence he cannot commence a Suit at Law, yet he may defend any Action that fhall be brought againlt him, fo he may Many or make a Will. He may not enter the Church in time of Divine Service, but he may bear the word preached. My Lord Coh (b) feerne to intimate, that an Excommunication is a greater difability than an Outlawry, for if a Plaintiff who is an Executor is Outlawed, that cannot be pleaded to difable him from pro- ceeding in his Suit, becaufe 'tis in the right of another, but if he is Excommunicated 'tis other wife, becaufe every Man who converfeth with fuch a Perfon is Excommunicated hirn,- But this feems to be a miftake, for they are not Excommu- nicated till admonifhed not to converfe with him. So likewife where there are three Executors (c), and one is Excommunicated, and in an Action of Debt brought by them all, the Excommunication of one is pleaded in Abate- ment, this fufpends , but it doth not abate the Action. But regularly the Plea ought not to be concluded in Abate- ment quod petit judicium de Breve (d), but thus, (vi&J petit ju- dicium fi refpondere debeat, or thus, fuper quo the Defendant petit quod loqueU pred. remaneat fine die, becaufe, thoJ the par- ty is Excommunicated, yet the Writ is not abated, for he may get Abfolution and have a re- attachment upon the fame Original. Now when an Excommunication is pleaded, the Signifka- vU CO mutt be fet forth Jul pede figiti, 'tis the exprefs T ext of Littleton (f), unlefs the Writ had ilTued out of the fame Court in which the Excommunication was pleaded, and the rcafon is, becaufe it may appear that the perfon is certain- ly Excommunicated, but 'tis iurricient to alledge that the Party was Excommunicated (g) Et protttlit hie in Curia liter as (*) 1 Inft. 134. (O l Lev. 308. (d) Co. Lie 128* iter, 134. («) 1 LuL n. ;3 if) lAXXj&Bt. aov tg) 1 Vent. 22*. T 4 Ithmntirm 1 78- €scomniumcattait. Tejjimeritari&s Epifcopi& qu), . becaufe none can certifie this matter but the Per- fbn to whom the Court may write to abfblve; yet in fome places it may be good by Cuftom under the Seal of the Arch- deacon, but then it muft appear that the matter was within his Jurifdiclion. But be it under whofe Seal it will, it muft exprefs the cauie for which thePerfon was Excommunicated, that it may ap- pear the Ecclefiaitical Court had Jurifdi&ion (/), and there- fore if it lets forth, it was for not anfwering Articles, or for certain Cauies without mentioning what Caufes, 'tis void for incertainty. The Bifnop muft fet forth, that the Party (k) was refident in his- Diocefs at the time of the Excommunication, and the Certificate muft (hew in what (/) Court he was Excom- municated. It muft likewife fet forth the day on (m) which he was Ex- communicated, becaufe 'tjs traverfable : See more of this in Ckpia: following. x <£j:ccm:r»uniCtuio Czptesto,] The ancient form of the Ca- puts Excamunicat. was tjuis : Rex, &f. vie Sti{fexfilutem fignificavit nobis venerabilis pater Jchjnnes GceflrU Epus. per liter WS fffds pat cntes quod Jo. de Paro- chitf dc.H.J'ua Dioces propter fuam mmife^t am contumaciam Au- ihuri:ate ipfsts Epifcopi Ordiaria T.xcomnmnicatus eft nee fe vult per cm fur Am Ecclepailicmn ■ ja/iichri quia vcro pot e (ins regia fa- cnfantld Ecclefa in qwrelis tnis deejjenon debeat till pre cipimus oucd pred. Js. per corpus juqm Jccmidnm conjuetudinem Anglti it;}itii's donee jinEla EcclejU turn de cmtemptu quam de jujuria ei ilUiaab eo f&rit jatisfdlkm Tefte, &c. (h) s iU-p. Trollop sC/o, (i) 1 Rcii. Rep 136. (k) Moor 467." (/J 'Moor * Cm) a Cro, 8a, By QEfrcomtminfcatfon. i79 By this Writ it was in a manner left -to the diicreiion of the Sheriff, whether he fhould execute it or not, becaule it was not returnable in any Court which might enforce the Execution, or punifh the Officer for a falie Return. Therefore Anno 5 ElU.cap. 23. it was enacted, that every Writ de Excommunicato capiendo (hall be awarded out of Chancery in Term time («), and made returnable in the Queen's Bench the next Term after the Tefa there being al- ways to be 20 days between the Tefie and Return. That after 'tis fealed it mult be recorded in B. R. for other- wife the party may be discharged without pleading it (0), then it mult be delivered to the Sheriff to execute, which if he neglect to do, the Judge of that Court may amerce him, and em-eat it into the Exchequer. But if the Defendant lives in Wales or in a County Palatine or Cinque Port, then this Writ muft be fent by Mittimus out of the Chancery to the chief Officer of that place to pro- ceed and take him. The Sherift is bound to return this Writ, and if he makes a falfe Return, he forfeits 40/. to the Party grieved, if he return non eft inventus then a Capias iiTues put of B. R. return- able in Term time, and there muft be at lea ft two Months between the Telte and return thereof, and a Proclamation muft be made either at the County Court, Affize, or Seflions, ten days at leaft before the return Day ; that the Defendant fhould within fix days after fuch Proclamation render him- felf in Cuftody in pain of 10 /.and the Sheriff is to make a Re- turn of this Capias. If upon fuch return it appears the Defendant hath not ren- dered his Body, there Oiall ifiue another Capias out of B. R. with Proclamation as aforefaid, and if upon the return there- of, the Defendant doth not come in, the Penalty is 20/. and fo a Pluries Capias with Proclamation, CTc. and like Penalty of 20/. andfo infinitely with the fame Penalty un- til he render himfelf to Prifon. All this is required by that Statute, and likewife that the Excommunicated Perfon hath an addition in the Writ of his Quality, and place of aboard; but if 'tis with a nuptr of fuch a place, then the firft Capias with Proclamation (hall be, that the Significavit iliall contain, without a Penalty, that the Defendant was Excommunicated for fome of thefe Caufes following, fv&J (») a Cro, ify Crc. Car. 582. (0 * Vent, 338. 1 8p Citcommimf cation* (i.) For Hercfie. (2.) Refuting to have his Child Baptized Q>). (' ?.) To receive the Sacrament. (4.) To con: e to Divine Service. "or error in matters of Religion or Doclrine. ' For Incontinence. (7 J W>ry. v • ony. (nj y in the Ecclefiaftical Court. ([0.; And Idolatry. If none of thefe Caufes is contained in the Significavk, the Defendant (hall not incur the Penalties before mentioned, neither if heisinPrifon, beyond Sea, an Infant, of nonfane Memory, or Covert, or if he is proclaimed in a County where he is not for the molt part Refident. And if a Capias with Penalties fhould iflue againtt him, when there are none of thefe Caufes in the Significavit, the Court will grant a Super fedeas upon a Motion ; but if he fhould be taken, then he cannot be difcharged without plead- ing it, I mean from the Penalties ; for tho' he doth plead it, he cannot be difcharged from his * Impriibnment by fuch Flea. ' But the Plaintiff ought to take care in fuing forth a Capias with a Penalty where none of thefe Caufes are mentioned in the Certificate Cq), for if he doth, the Defendant may have an Attachment againit him, becaufe he is oppreiTed thereby And put to Expences in pleading it. But this Statute doth not take away an Excommunicato Capiendo at Common Law, but only enforces a Defendant Excommunicated for one of thofe Caufes to render bimfclf under pain of theie Forfeitures; for a Man may be Excom- municated (r) for feveral other matters befides thofe menti- oned in the Statute, and 'lis the uiual pradtife {o to do: but then the Prccefs mud be without Penalties, and if rhe Defen- dant doth not render hiniiclf into Cuftody, the Court of Queens Bench may award fuch Procefs in infinitum, till he doth or is taken. OTmnionc 3&T>mittcnt)a.] (4 J The Laws of England take particular care of the Liberties of the People, as in all other matters, ib in this of Excommunication, for if one Excom- municated is in Cuftody, and otters fufricient caution to the B (hop to obey the Commands of the Church, and he refufes ';-,. H As long as the Parfon keeps the Glebe in his own hands l.c pays no Tithes to the Vicai, tho* he is endowed of all the fmall Tithes in the Parifh, but it hath been held, that if he Demife the Glebe to a Layman, the Tenant mult pay the fmall Tithes to the Vicar, and the s;reat Tithes to the Leflbr. So I ike wife where the Vicar Leafcs his Glebe, the Tenant xrmft pay the great Tithes to the Parfon or Impropriator, and the fmall Tithes to the Vicar ; but this mutt be undcrftood where the Land was tithable at the Endowment, for if it was appropriated to a Priory before the Vicaridge was en- dowed, then, tho* the Endowment was de minutis decimis of the whole Parifh, the Vicar (hall not have the Tithes of the Glebe there, tho* he had Leafed the fame, becaufe it was not tithable at the time of the Endowment. Tis true if Tithes have once been paid out of Glebe De- inifed by a Parfon or an Impropriator, it ought to be fo as often as 'tis Demifed, but where fuch Tithes are demanded, if they were never paid, then either of them may prefcribe, that he and all his PredecelTors (u) have enjoyed the Glebe Land-, by themfelves, and by their Tenants difchar.2;ed df Tithes to the Vicar, and fuch a fuggeftion fhall be a fufna- ent ground for a Prohibition, and the rather, becaufe fmall Tithes out^of Glebe Land Demifed by an Impropriator are not payable de c'ommuni jnre to the Vicar, becaufe Ecciefia nm debet decimari Ecclefix. But if a Parfon, where there is no Vicar {%), Leafes h\% Glebe 'tis otherwife^ efpecially if hereferve but a fmall Rent, for in fuch cafe the LelTee ihali pay Tithes of the Glebe to the Parfon himfelf. Before the Statute 14.&/. 3. cap- 17. a Vicar had no man- ner of Freehold in the Glebe, and therefore he could not have the Writ of juris ntrum to recover what had been alie- nated by his PredecelTor, which Writ is given to the Vicar n that Statute. It hath been laid, that during an Avoidance (y) the Fee fimple of the Glebe is not in the Patron but in Abeiance, 1 is, "tis only in expectation, and not in any certain Perfon, and this was Littletons Opinion ; the reafon which he gives Why it ought to be fo is, becaufe it fhould not be fubjedt to any Alienation or Difconti nuance which might be made by the PoiTeiTor fo as to bar the SuccefTor, for fine* the Parfon hath enram Ammarnm, the Law takes care for him that Ik («) 2 Luc. 1062. (x) Owen 19* I L«on. 300. Cro. Eli?. «x, Noy.jj ihould 184 tfuatwati of t&e §>pirftualtie& ihould not bedeftitute of that Maintenance which arifesfrom the Glebe. Tis true, tbe Year-book 8 H. 6. 24. is cited to prove it, but Serjem Pafton argued there could not be an Eltate for Life, unlets there was alfo a revetGon Expectant upon fuch Eftate which mult be in foine body, and Sir William BAbington, who was then Chief Juftice of the Common Pleas, was of Opini- on, that upon an Avoidance the Fee-fimple doth rightfully belong to the Patron. FitsLherbert (*,) lays, 'tis in the Patron aod Ordinary, and long before he wrote it was held, that they might charge it before the Church was full (<0. But after induction the Freehold (b) is in the Parfon, and tho* he cannot commit Wafte, yet he may dig for Lead Ore, and fhall not be prohibited. Neither fhall he be charged for his Glebe to fend out either Horfe or Man to the Militia, becaufe 'tis a Spiritual Revenue and held in pttra & perpetua Eleomofyna:. Laftly, If a Parlbn or (c) Vicar fows his Glebe and then Demifes it, and doth not Leafe the Tithes with the Land, or if he fell the Corn, and the Vendee cuts it, yet he mult pay the Tithes to the Parfon, &c. ) in which Cafe there was a Dialogue between •) v-N B 49. b (a) Fitz. Abr. ti:. 'Annuity sj. 5 Rep. 8:.b. (b) Sid. ; - 1 Roll. Abr. *cwo & capitulo EcclefaCathedralis, & Mctropdu SantH petrt, Ekracen ad qms omnis & omnimoda jHriJditiio Spiritual. & Ecdefupcz qutad Archiefnm Eboracen. plena Cede pertimh ipfafcdt jam v&- i Ante notorie dignofcitur pert mere faint em, &c. (f) 17 Ww. *•/•:??• to ■*ft*ft.1M' And 3 86 ^eeefie. And, if notwithstanding fuch Writ, they ftill refufe with- out Chewing any reaionable Caute, then the (aid Penalty is forfeited to the Queen ; and the Lord Chancellor iffues out the* Writ, directed to two Bifhopg, or to fome other Spi- ritual Perfons as ihall be thought fit to do what the Guardi- ans of the Spiritualties refufed. Her e fie. THIS is an opinion contrary to the true Doctrine of the Chriftian Faith, and obftinately maintained by fuch who profefs the name of Chrift. Under this Title, I iliall only fhew what the Law was for- merly, as to the puniftnnent of an Heritick, and how it ftands at this dav. Before the Statute, 2 Hen. 4. a Biftiop could not commit any Perfon for Herefie. The proceedings againft him were by the cenfures of the Church, in order' to Conviction, that is, the (b) Archbifhop might convict him in a Provincial Convoca- tion, and then he was to be delivered to the Sheriff, who, by venue of the King's Writ de Haretico comburendo was to Burn him. Bui k king found troublefome to Summon a Convocation upon this occafion, That Statute provided that every EiJhop might, in his Diocels, convict an Heretick, and if this was done in the prefer- ce of the Sheriff, (which was uiual in thofe days) for the Bifhop would fend for him on purpofe, then, immediately bpon the Conviction, he was delivered to the Sheriff, who Burnt him, without the Writ de Harmco-combn- rendo ; but if it happened (as ibmetimes it did) that the She- rifTwas nor prcfent a't the Conviction, or if the Heretick was ordered to be Burnt in a County, other than where he was Convicted, in inch Cafes the Sheriff could not Burn him without the Writ, &c. I do not find, that a Heritick Convicted had any way to fave himfelF from the Fire, but by abjuring his Opinion, and this was only upon the fir ft Conviction ; for if he Relapfed, and was Convicted the iecond time, then he was certainly Burnt. And this was William Sawtree's Cafe, who Anno 2 Hen.q* was condemned by Archbifhop Arundel in a Provincial Council, for a Relapfed Heretick, and a Writ was directed to-xhe Mayor and Sheriffs of LWwtoBurn him,. and this was (0 Bro. Abr, Tit. Herefj. JjDeteflc, 187 by the advice of the (i) Lords Temporal in Parliament afiem- bled, and it was Subicribed per ipfiim Rege?*> & Concilium. This was the firfl Perfon who was Burnt in England for Herefie, upon a Sentence given in a Council, and by virtue of the Writ de H&retico comburendo. 'Tis Printed in (k) ft'to- berbert, and burning is there called the ufual Punifnment, which muft relate to the ufage Beyond-Sea, for it was feldom or never ufed here, tho' I admit Burning was the Punifhment at Common Law for this Crime; but then the proccedincs agauift the Offender was in the Temporal Courts upon In- diftment, &c. m But in the primitive Church, this, or any other capital Pu- nifhment for Herefie was Condemned; and we are told that when two Bifhops;Profecuted the Heretick PrifcillUn to Death, they were fo far cenfured for the Barbarity of the A6t, thai many refuted to hold Communion w»rh them. The firft inftance that we find of Burning was by Jftifini- anil, in the 8th Century, who Burnt all the Manichees in Armenia. But Anno 1198. about the beginning of the 13th Century, the Albigenfes in the South Parts of France, Preach- ing again!* the Corruptions of the Popifh Clergy, were, for that reafon reputed Hereticks ; and St.Domintck came out of Spain to convince them of their Errors, but without any ef- fect, and therefore he perfwaded the Magiftratesto Bum them. But as yet there was no Law for it, therefore by the 4th La~ teran Council it was decreed, that Hereticks fhould bc-deliver- ed to the Magiitrates to be Extirpated, which is a very fofc word for Burning, and if they neglected then they were to be Excommunicated. Princes were alfo depofed by the Pope, and their Subjecls abiolved from their Allegiance, and this was fo terrible to them, that they rather chofe to deliver up their Subjecls to this Death. In Wickliffe's time (/) a Bill patted the Houfe of Lords, but: it was never lent to the Commons, that upon a Certificate made by the Bifhnp to the Court of Chancery, ©f the names of fuch of Wickliffes followers who Preached without Licenie, and drew great AfTemblics together, that the Chancellor fhoul J iflue out Writs to the Sheriff to apprehend and commit them, thereto remain till they ;u(tifie themfelves according to the Laws of the Church. But in the next Parliament, the Commons by (m) a Bill declared, that they never affented to that Ac-'t, and therefore defired that it might be taken as void. (i) 2 R»I, Abr, 22$, /kj F, N. B.:*? . AnnO 5 R. »', (m) 6 R. z. i88 rptteffo My (a) LordCo^ tells us, that it wasufualirt thofe days to Er.grofs all Acts of Parliament in Parchment, and to trans- mit them under the Great Seal to the refpe<5Vive Sheriff of every County, in order to be Proclaimed there; That this Ad 5 Ro 2. tho5 it was only an Ordinance of the King and Lords, and not an A 61 of Parliament for want of the Concurrence of the Commons, was Engrofied, and lent to the Sheriffs to be Pro- claimed $ but that the Act 6 R. 2, by which that Ordinance was declared to be void, was never Engrofied, it was then, and ever fince kept back, as my Lord Cofofays, by the Prelates, and the Ordinance hath been continually Printed in our Sta- tute Books, which mult be very extraordinary, becaufe rrb lucceeding Parliament hath taken notice of this fuppofed A& But when R. 2. was depofed, then in gratitude to thofe Clergy who aflTifted Hen. 4. cap. 1 5. in his Ufurpation, he got a Law to be paifed in both Houfes, to which he willingly gave his aflent, the purport whereof was, that none fhould Preach without Licenfe, nor deliver any Doclrine contrary to the de- termination of the Holy Church, and if any Perfon was fuf- pe$ed of doing to the contrary, then he was to be committed by the Ordinary till he was either convicted, or abjured his Opinion ; and if he refufed or didrelapfe after Abjuration, then he was to be delivered to the Civil Magittrateto be Burnt, but firtt bis Conviction was to be certified into the Chancery, upon which a Writ iffued out to Burn him. But Anno 25 Hen.%. cap. 1 4. one Phillips having complain- ed to the Commons of his intolerable ufage by the Bifhop of London, who had committed him only upon futpicion of Here- ile without any manner of Proof, and this Complaint being fent up to the'Lords, and they not regarding it, the Commons fent up a Bill, which in effect was a Repeal of that Statute 2 Hen. 4. fetting forth, that as yet there was no Declaration what {hould be Hertfie, but only in thefe general words, viz,. That it was an Opinion contrary to Scripture or Canonical Sanations, then they fhew that the proceedings in this cafe was without Presentment, therefore it was provided that Hereticks fhould be profecuted by Prefentment, and by the accufation of two WitnetTes, and then, and not before, the Perfon thus accufed fhould be Committed, but not without Bail, and if convict- ed fhould be Burnt, but not without the Writ de Hdretieo comburendo ; and that none fhould be Profecuted upon any Canon Law, for fpeaking or doing any thing againit it. (ft) } Inft. 4*. j* But tyertife* 189 But now, by the A el i Edw. 6. cap. 1 2. both thofc Statutes are Repealed ; and there is a (a) Statute Law in force againtt Hereticks, fo that the Proceedings againtt them mutt be by the Cenfures of the Church only. I3y the Act 23 Hen. 8. cap, 9, 'tis provided, That Archbifhops may Cite for Herefie in any Diocefs within their Provinces, the Bifhop of fuch Diocefs confen:ing, but if he refufe, then to Proceed again it the Hcre- tick. And it was very neceiTary that thofc Statutes fhould be Re- pealed, beeaufe, when Bifhops had Power to Commit Men upon Sufpicion of Herefie, they did exerciie that Power in a very extraordinary manner, a? for Initance, AnExecutorwas Excommunicated at the Suit of a Widow, for denying her the Third Part of her Husband's Goods. But in another place (b) my Lord Co fa tells us, it was f r not paying a Legacy, and being under this Sentence, the Man declared that he did not fear ir, for that he wa<= not Excommumcated before God, be- eaufe he had as good a Crop of Corn as any of his Neighbours ; for thefe words he was Committed by the Archbifhop Bowr- chier to MaidfloneGo2i\, as one non immerito de H,. is declared by this A61 to be in full Force, and there the Liturgy is eftablillied. Now by the one, every Pariflhioner is enjoined to refort to his Parifh Church on Holidays, under the penalty of the Cenfures of the Church, and i2d. for every Offence, and by the other there are Collecls, EpihMes, and Gofpels appointed to be read on each Holiday. Tis plain, that the Clergy and People are not very ftri& in obferving thefe days, and there are no other penal Laws to enforce fo necefTary a Duty, but the Minitters may be com- pelled to it by their Diocefans, for they have the fame Power to oblige them to this Duty as they have to make them obferve the Sabbath, Tis true, there is a provifo in the Statute of Ed. 6. that Labourers and Fifhermen may (upon occafion) work on thefe days either in or out of Harvelt, and 'tis certain, that tiifs Liberty is carried farther then at firh1 intended, and in a manner to the total prophanation of all Days fet apart for religious Worfhip. And tho' fome Ptrfons through an immoderate defire of Profit, and fome for Pkafure, have neglected to come tu Church on thefe appointed days, yet if the Clergy would con- Irantly attend the publick Service, this might in time ftir up the People by their good Example to the religious obfervance of Holidays. Laftly, Thofe which I have mentioned are the ftated Holi- days of the Church, but there are ibme other days which are tpbe obierved by particular Acls of Parliament, as the 5th of ! alnft. 686. i C*r. 2. cap. 4; U 3 Nl\'t*z *94 l^ofpttallers* November (a), which is a day of Thankfgiving for the difco- very of the Gunpowder Treaf on. The 29th day of May (bj as an Amnverfary for reltonng the Royal Family 5 both thefe Statutes ate appoint i to be read in the Church refpe&ively on each of the laid Days af- ter morning Prayer or Preaching. So the joth of January is a Day of Humiliation for the murder ot Car. 1. but this Acl is not directed to be rt«td in the Church. Hofpitallers. TP HERE was an Order of Religious Knights creeled about x the ieventeenth year of Ed. 2. who lived under particular Rules, and of which the grand Matter and two Chaplains only were to be Ecclefiatticks, and thefe were called Hofpital- lers, becaufe they built an Hofpital at Jernfalem to receive Pilgrims. Thefe Knights fucreeded the Templars, who were fo called, becaufe they had a Temple at Jerufalem for the purpofe afore* faid ; but they being fuppreiled by a Council held at Vienna in the Reign of Pope Clement «$ih (V), their Land? here in Eng- land were transferred by the Parliament to thefe Hofpital- lers(d), who are alio Knights of St. John of Jerufalem, and are now thole which we call Knights of St. John of Malta. This Order had large Endowments to fopport thernielves and entertain Pilgrims,and had alio many Priviledges grant- ed to them by feveral Pope?, of which this was one, (t/i*,.) that their Lands fhould be difcharged from payment of Tithes. There are none of this Order in England, for it was diflblv- ed in the Reign of H. 8. of which 1 fhall give a particular account. Several Abbots furrendered their Monafreries to that Ring in the 29th year of his Reign, and two Years afterwards an Adt parted (e) to confirm ihofe Surrenders, in which there was a fpecial Claufe, that the King and his Patentees fhould holdthofe Lands difcharged of Tithes-in the fame manner as the Abbots held them at the time of the Diftolution, and this A 61 extended to all Monafteries which fhould afterwards be Surrendered io the King. ' (a)]zc. cap 1. {b) 12 Car.2. cap. 14. (c) Anno 1 3 12. (d) Anno H23. X7 Ed. 2. (e) 31 H. 8. cap. 13. The SKtMcaWt* 195: The Hofpitallers were not then difTolved nor until the year afterwards, (viz .) by an Act made 32 H. 8. cqp, 24. by which their Lands and all the Prfriltdges they had therein were given to the Crown; but in the Act there is no particu- lar Claufe to exempt them from payment of Tithe?, fo that the Lands being granted (/") to the King and not furrendered, they are not comprehended within the Letter or meaning of the Adt. 31 H. 8. and therefore thai I pay Tithes. But my Lord Dyer (g) tells us, that Apno ioEUz,. upon confideration of this Statute Judgment was given to the con- trary, and Anno 4 Car, the liJce Qucition came in debate again, and it was held, that the (jo) Exemption which the Hofpitallers had from payment of Tithes was a Priviledge, and tho', 'tis true, that all Priviledgcs are perfonal, and that when the Perfon or Corporation to which they are annexed is ei- ther (z')dead or difTolved, that the Priviledge is likewife gone, yet when 'tis given or transferred to another by Adt of Parlia- ment before the DilTolution of the Corporation it felf, they fliall enjoy it. That this Priviledge was given?to the King by the Statute 32 H. 8. and therefore not only he but his Patentee fhould hold them difcharged of Tithes, becaufe 'tis not a perfonal Privilege in the King alone to whom it was transferred, but a real dilcharge of the Land it felf from payment of Tithe.% which accompanies it in whoibevcr hands it Lhall fall. Incontimncy. See Adulter)'. lndkdvit. T5Y the Common Law, if the Incumbent prefented by one *-* Patron libelled for Tithes againft the Incumbent of ano- ther Patron, the Writ of Indie avit did lie, which is in the na- ture of a Prohibition, and iiTueth out of the Queen's Courts at Weftwinjter, 'tis to be brought by the Patron of the Defen- dant in the Spiritual Court, and 'tis to be directed either to the Party himfelf, or to the Ecclefiaftical Judge where the Caufe is depending, and 'tis to prevent a recovery in that Court till the right is determined at Common Law. After this Writ was ferved, all Proceedings in the Spiritu- al Court were ftaied^ but then the Patron might have a Writ of right de advocatime decimarnm by vertue of the Statute of W. ?J (f) Moor5>i3. (g) Dyer 277»b. (ty Jonesi8a. La^ch. 8$r Bxidgmaa 32. (/) a Bro^nJ. 81 so. 196 Sinmitffom cap. «$. but not unlefs he claimed the Advowfon in Fee, for if he was Tenant in Tail, or for Life, he could not maintain a Writ of Right, but in fuch cafe he was to appear upon an Attachment and receive a Declaration, and then plead his Title, and {0 to proceed as in other Prohibitions, and when "Judgment was given at Law, the Caufe was remitted to the Ecclefiaftical Court, and determined there according as it was at Law. And it was not material at the time of the making that Aft (£) of what value the Tiihes were, but by the Statute Articuli Cleri (b) they mult amount to the fourth part of the value of the Church, otherwife an Indicavit will not lie if brought by a common Perion, neither will it lie if brought before the Libel or after the Sentence in the Spiritual Court. Nor is it neceffary that the value of the Tithes fhould be Let forth in the InUcavit, for if they do not amount to the fourth part, that mult be Chewed on the other fide for a Con- futation. But all thefe proceedings being now obfolete, I fhall not enlarge any more upon this Writ. Indu&iov, Hp HIS may be compared to Livery and Scifin of a Freehold, *** for 'tis putting the Minifter in actual pofTeffion of the Church, and of the Glebe Lands which are the temporalties thereof. It may be made by a Bifhop, or by a Dean and Chapter, as particularly by the Dean and Chapter of Pauls and of Litcbfeild, it may be done by the Patron himfelf, but not as Patron, but by fbme other Authority, as if a Bifhop is Patron of a Living within his Diocefs, in which cafes it mutt be ei- ther by Prefcription or Compofition ; thus the Lord V if count Mountague doth inducl the Dean of Battel in Sujfex into that exempt Deanry. But the ufual method is by vertue of a Mandate under the Seal of the Billiop to the Archdeacon of the place, who lei- dom induces any Clerk in Perfbn, but i flues out bis War- rant to all Clergymen within his Archdeaconry, requiring them or any of them to do it, then one of the Clergy taking the Perion to be inducted by the hand, lays it on the Key of the Church, in the Door, and pronounces thefe words : tfj 2 Inft. 364. y, Cap. 2> Br Snltuctiom i97 By vertue of this Warrant, I induct yon into the real and attital poffeffion of the Rellory of H. mth all its Profits and Apurtenances. Then he opens the Door of the Church and puts the Perfbn into pofTeffion thereof, who ufually tolls a Betl, which is to give the Parifhioners notice that tbmething is doing in the Church. This Ceremony being over the Perfon thus induced is then compeleat Incumbent and entituled ad Beneficium, that is, to an Eftate in the Glebe and Tithes. Then the Inductor is to certifie the Induction, which he en- dorfes on the Archdeacon's Warrant, anci all who are pre- fent ufually fet their hands to it as WitnefTes. But if the Key of the Church cannot be had, the Clerk to be inducted may lay his hand on the Ring of the Door, or on the Church-wall, or on the Fences in the Church-yara^ and cither of thefe isfuflicient. Thefe Ceremonies are only to make the Induction publick as it ought to be, that the whole Parifh may take notice of it. The Perfon thus 'nducled, muft within (m) two Months afterwards read the 39 Articles, and declare his unfeigned Affent and Conlent to them after the Common Prayer is be- gun and before *tis ended. AndLk.wife within the faid two (n) Months, he muft upon fonie Sunday, read the whole Service f r that d.iy out of the Book of Common Prayer, and declare his Affent to it in that very Church to which he was inducted, which he muft do in thefe words. / P. S. do declare my unfeigned Affent and Confent to all and every thing contained and prefcribed in and by the Book intituled the Book of Common Prayer, and Adminift ration of Sacraments7 and other Rites and Ceremonies of the Church according to the ufe of the Church of England, together mth the P falter or Pjalms of David pointed as they are to be fung cr faid in Churches and tin form or manner of making, ordering, and consecrating Bifhopi Friefis and Deacons. r The Perfon neglecting any of thefe things, the Church thereby becomes void, and this he muft do toties quotiss he ac- cepts any other living. Induction is a temporal Act, and therefore if the Archdea- con fhould either refufe to induct a Parfon, (0) or to fend his Warrant for that purpoie, an Action on the Cafe lies againft («) r } Eliz.cap. 12. (n) 14 Car. 2. cap. 4. (0) x Bulft. 179. 2 Bulft 26$. Hob. 15. 2 Roll. Abr. 893. Plho. jo. Moor $79. him, 198 3!nffftutfoit; him, in which the Plaintiff (hall recover Damages, but can- not by a Verdict be invefted in tht Glebe or Tithes, he may likewife be profecuted in the EccleGaftical Court, and there he will be compelled by a Sentence to induct the Clerk. After he is inducted to the Church (p\ his Inftitution (hall not bequeftioned in the Spiritual Gourt, becaufe the Church is then full, and if the Inftitution is infufrlcient, that may be fhewn upon the Trial of the Induction in the Temporal Court, which will certainly be wrong if the Inftitution upon which 3tis founded is fo ; neither hath any one a right to the Tithes which arifed during the vacancy, befides the new inducted Incumbent, for he hath then jus ad rem. But if the Authority of the Perfon who made the Mandate fhould be determined * either by Death or removal before the Clerk is Inducted, then his Induction afterwards would be void ; as if the Archbiihop during the vacancy of any See ad- mits and inftitutes a Clerk, and then makes a Mandate to the Archdeacon to Induct him, and before 'tis executed a new Bifhop is Coniecrated, the Induction afterwards made by vertue of that Mandate is void, becaufe the Archdeacon derived his Authority from the Archbiihop, and fuch an Executory Power ceafed upon the Confecration of the new Bifhop. But this Judgment was reverfed in the Exchequer-Cham- ber, f becaufe the Archbilhop hath a Sovereign Authority throughout his whole Provence, anfl therefore when he doth any thing which a Provincial Bifhop ought to do, fuch A& is not void but voidable. Befides his Mandate to the Archdeacon, is to one who hath Authority to induct virtute Officii, and the Mandate it felf is only to intimate that the Perfon is inftituted, and to oblige the Archdeacon to Induct him under the penalty of Eccleti- aftical Cenfures, the induction is only Minifterial, tisthe Inftitution which is the Judicial Act, and which the Arch- bilhop had an undoubted Power to Grant, for he is Guardian of the Spiritualties during the vacancy, and the Law is clear tha^an Authority well commenced ihali be perfected by the fame Perfon, Itiftitutton. \ff7HEN the Ordinary hath admitted any Clerk to a * * Benefice, he either grants him Inftitution under his (v) 2 Roll. Abr. 232.Piiro. 3. 254. Plito, 12, 13. • I Vem. jop. 2 Lev. 1$$.' f Jones 73. ' JEpifcopal Snffttutfotu 199 Epifcopal Seal, or fends him to his Vicar-general, Chanccl- lour, or CommifTary to do it, which is uiually in this Form. Inftituto te Retlorem Ecclefia, He H. & habere cur am Anmarnm Faroe hianorxm, &c. & accipe cur am mam & meam. And this may be done by the Biftiop under the Epifcopal Seal, or any other Seal befides that of his Office, and tho* he is not in his Diocefs, for 'tis the A6t of Court which makes the Inftitution, and the Inftrument under Seal is only a Teftimonial of what was done there, to which Inftrument feme Witnefles fhould fubferibe their names. If Inftitution is granted by the Vicar General or by any other Subftitue, their Acls are taken in Law to be Atfs of the Bifhop of himfelf, and he muft anfwer for any irregularities commuted bv them. But theBilhop is prohibited by the Conon (q), to inftitute aCle»k w o hath been Ordained by any other Bifhop with- out fhe>~ iug his Letters of Orders. By an Inftitution the Clerk hath only (r) jus ad rem, and therefore he can do no A"* to charge the Glebe, tho' confirm- ed by the Patron and Ordinary till he is actually inducted in- to the Living, for then, and not before, he hath a Freehold in the Glebe. But at Common Law an Inftitution (/) even upon a wrongful Prefentat ion gave the Incumbent iiich a right, that if he had been pofleiTed of the Living by the f pace of 6 Months, this was a Plenarty, and he could not be removed, becaufe he came in by a Judicial A6t of the Ri(hop who is intrufted by the Law to take care in this matter, and fince by the Writ of Qnare lmpedit it felf, it appiars that the Law re- quires idoncam perfonam to be incumbent in every Pariiri, when the Bifhop (0 hath admitted one to be Able, that implies he is perfona idonea, and then the Law hath its final Intention, that is, the Church is then fufliciently provided with a Clerk, and 'tis plena & confultay which puts the rightful Patron out of PoiTetfion, but he is not without Remedy, for he might have a Writ of right of Advowfon, and recover that of which he was diverted by this Ufurpation. The Books are plain, that upon an Inftitution the Church is full againft a common Perfon, and likewife againft the Queen, if £n£ hath no Title but whatfhe derives from a Sub- ject, becauie the Incumbent hath then a Freehold, which is begun, tho' not compleated till Induction. (q) Can. 39. (r) Plo. Com. 528. (/) 2 toft. | $6. (0 2 R»U. Abr. 349, 294» 512. x RoM. Rep. 151, 227. 4 Rep. 72, And 200 Jnflftutfoit; And if the Archbilhop fhould inhibit the Archdeacon to induct the Clerk thus Inftituted, he may do it notwithstand- ing fuch Inhibition, and the Induction (hall be good. And to give an inftance that the Church is full upon an Inftitution, I will put this cafe, (viz,.) If the Grantee of the next Avoidance prefents and his Clerk is admitted and infti- tuted, and fhould die before he is inducted, he fhall not pre- fent again, for his grant was fatisfied by the inftitution of his Clerk, which proves that the Church was then full. But a bare Inftitution without Induction doth not make a Plenarty againft the Queen where (he hath a Title to prefent in her own Right («), or by vertue of her Prerogative, and therefore if her Prefentee (hould die before Induction, (he may prefent again, becaufe (he had not the full and complete effect of her Prefentation. Now, tho* it doth not make a Plenarty againft the Queen, (x) yet if the Perfon thus Inftituted and not Inducted doth take a fecond Benefice, it fhall make the firft void, becaufe by the very InRitution he had accepted the Living, and the words of the Statute are, (viz,.) (y) if a Par [on having one Be- nefice with cure accepts another, &c. And if in fuch cafe there fhould be a Difpenfation fc) to hold both the Livings, it will not ferve, for coming after Inftitution 'tis too late, becaufe the Church is full by it, and both the Patron and Ordinary had executed their Authority, and can never revoke it, the Inftitution being matter of Sub- ftance, and the Induction which is to follow is no more then a Ceremony, to give the People notice of the PoiTeffion. Befides, by this very Ad of the Bifhop * the cure of Souls is transferred from him to the Clerk, tho* it doth not always follow, that an Inftitution to a Benefice fhould imply that the Ckrk hath cm am animarwm, becaufe the Queen hath fe- veral Donatives in Wales, f which are not properly Benefices with cure of Souls, bur yet the Incumbents on fuch Donatives come in by Prefentation and Inftitution. If the Bifhop refufcth to grant Inftitution, no Action (V)of the Cafe lies againft him, the Party may have a remedy in the Court of Audience by a. Duplex Querela, &c. Laftly, Inftitution it lelf is properly cognizable in the Ec- clefiaftical Court, but if after (b) hdtitlion aMan is fued there, fuppofing his Inftitution was void, that (hall be tried in the Cour s at Law5becaufe. by the Induction the Perfon had a Free- hold in the Benefice, which muft be tried at Common Law. («0 2lnft jjfc.'jRep.i'ia. &) t>ja *6°- 4 RcP- 39. (?) 21 H. 8. (*>) + R«P. • 1 Mod- |2. ! Sid 07'. t*) * Roll. Rep. 64. (*)» w* 201 Jus Patronatus. WHERE two Perfons prefent two Clerks to the fame Church, by different Titles, the Church is become Li- tigious, becaufe the Bifhop doth not know who is the Right Patron, and by confequence cannot tell which Clerk to ad- mit. So 'tis if two Patrons prefent one Clerk, becaufe the Bilhop cannot admit fuch Prefentee generally, but muft admit him as the Clerk of one. But if two CoheirelTes prefent fcveral Clerks by the fame Title, that is, where an Advowfon defcends to them, and they cannot agree to Prefent one and the fame Clerk, fo that they Prefent feverally, and this jis found by a Verdict in a Jus Patronatus, the Bifhop is bound to admit the Clerk of the El- deft, for the (h) Church in fuch Cale is not Litigious, nor if Tenants in Common Prefent fcveral Clerks, for the Bifhop may admit the Clerk of either, but if they do not agree in their Prefentation within Six Months after the Avoidance, the Bifhop may Collate. So if one Prefent, and the Bifhop doubts his Title, (as in fome Cafes he may) then he may require to be fatisfied in a Legal Method ; as for Inftance, if a Parfon is deprived, notice muft be given to the Patron, otherwife noLapfe Incurs, and if upon fuch Deprivation the Bifhop fhould Collate and Die, how fhall his SuccelTor know, that notice was give to the True Patron ? And therefore the Law hath provided a Security for him, and that the Cure may not long be neglected, and this is by a Jus Patronatfts, which may be brought at the Inftance of one or both Parties, that i?, either by Patron or Clerk, but the Bifhop is not bound to award it ex officio, but may fufterthe Church to Lapfe, yet when he is required to do it, and refuf- eth, he is a Difturber, and in fuch Cafe the Church {hall not Lapfe, nor after a Verdict found upon a Jus Patronatus, be- caufe the Bifhop ought to Prefent that Patron's Clerk for whom it was found. The Proceedings upon it are as follow : The Bifhop IfTues forth a Cominiflion under his Epifcopal Seal, directed to his Chancellor, or to fome other Civilian, and fometimes to Common Lawyers, to enquire who hath the Right to Prefent to fuch a Benefice. («) si Hen. fc a. «« Thcfc ^2^ 3ius patronattts; Thefe Commifllcners have Authority to Summon a Jury, which is done by a Mandate under their Hands, &c. directed to iome Officer for that purpofe, half of which Jury muft be Clerks, and the other hair"! aymen, but there is no neceffity that fix of each fhoulu be the compleat number, for they may caufe more than we've to be Summoned and Sworn, fo that they Swear no more Laymen then Clergymen. But Twelve is a Full Jury, and if they do not Appear, the Clergymen may be pumlhed by Sequeftration, and the Lay- men by Excommunication. Ifrhey Appear, the Commiflioncrs are in the firft place to Swear a Ckrk, and then a Layman, till the whole number are Sworn. The Points which they are to inquire into are, fi.) Whether the Church is void. (2.) Who preferred taft. (3.) Who is the Rightful Patron to the void Church. (4.) Who ought to prefent to the fame. Thefe Articles' are to be publickly Read and delivered to them j but 'tis requifite that the Jury fhould find for that a Pa- tron whopreiented laft, for if he is the true Patron it will appear fo upon the Trial of a Qtiare Impcdit, if he is not, then he Pre- fented by Ufurpation, and if his Clerk was Inducted, and the Church was full of him for Six Months, the Patron who had the Right muft Recover it in a Writ of Right of Advowfon, before he (hall Prefent again. After the Jury are Sworn, then Council is to be heard on both fides, as at all other Trials, &c. to maintain the refpec- tive Titles of the Patrons. Then the Jury give in their Verdict, and 'tis necefTary this fhould be done at that very time,tho* theCommiffioners may 2;ivethem longer time to confider of the Evidence, but if they will not agree, or refufe to give a Verdict, or be equally divid- ed, or find a Special Verdict, the Bifhop may Difchargc them, and caufe another Jury to be Sworn. As to the awarding a Jus Patronatus, 'tis not a thing of Ne- ceflity, 'tis no more than an Irqueft of Office, and for the Bi- fhops Security, that he may not be a Difturber, for he may at his Peril take notice which (x) Patron hath the Right, and ad- mit his Clerk accord ngly, and this he may do even after a Verdict in a Jus Patronatus, but if in a Ouare Impedhbxought againft him, &c. the Title is found for the Plaintiff, this will make the Bilhop aDiihirber, for it feems to be Injuttice, and (x) x Leon 168. . n againit 31iKf pattonatutf. 203 againft the true intention of the Law to admit a Clerk whole Patrons Title was not found by the Jury, but againft him. Therefore a Verd id in this Gale being only forthefafety of the Bifhop, and fince it puts the Patron upon tome Charge to fatisfie him in the Right, he ought to receive the Clerk ac- cording to the Verdict ; and it was my (?) Lord Hobert\ Opi- nion, that if he doth otherwife, an Action on the Cafe lies a- gainft him, in which Action the Patron may Recover Dama- ges for the Expences and delay occafioned by this means -, but fuch Action will not lie till he hath recovered his Title in a Qnare Impedit brought againft the other pretending Patron and his Clerk, but not againft the Bifhop, for if he is named in that Action, no other will lie againft him. As the Church may become Litigious by a double Prefenta- tion, it may likewife be fo by a double Jus Patronatus, for the Bifhop may award two Commiflions of enquiry, at thein- ftanceof each of the Patrons, (tho3 'tis not ufually done} ancf if in fuch Cafe the Juries find diftinct Titles in each Patron, the Bifhop can have no Direction by fuch Verdicts, but may refute each Clerk, and fuffer the Church to Lapfe. So if a Verdict is given for one of the Patrons, and if before hePrefents his Clerk again to the Bifhopj as he ought to do, another pretending a Title fhould Prefent his Clerk, the Bi- fhop may award a new Jus Patronatus to determine the Right between the new and old Patron. But tho' the Clerk, for whofe Patron the Verdict is found and fo Certified by the Commiflloners to the Bilhop, ought to be Prefented again to him for Admiflion, it may be upon the former Prefentation, and not a new one, and if he is negligent in this matter for Six Months, the Church is Lapfed. Upon the whole Matter, a Verdict in a Jus Patronatus is a good Warrant for the Bifhop to admit the Clerk of that Pa- tron for whom 'tis found, and it doth not bind the Right of the other Patron, for he may recover it in a Quare Impedit not- withftanding fuch Verdi6t ; and if he doth, the Bifhop is not a Difturber, tho' he hath admitted the Clerk of the other, be- caufe the Verdict is his Security, and 'tis likewife fome EvU dence for that Clerk, that his Title was found to be the belt. ty Hob. 318. Kbg 304 Kwg. HP HE Queen is Patron Paramount of all the Benefices of -*• England ; therefore, if other Perfons who are intruded by the Law uo neplect their Duty in filling the Churches, then by the natural Order and courfe of Government the Right de- volves on Her, who being Vetted with the Supreme Power is to fup-.'ly the Defects of others, and this is done by Prefenting fit Perfons to void Churc' es. Under this Title 1 fhall Treat, (i.) Of the King's Right to Prefent upon Lapfe, and in what time it mu(t be done. (2.) Whether there can bean Ufurpation on his Right to Prefect; and whether he can Prefent by Ufurpation. (3.) Where he fhall have a Writ to the Biftiop. (4-J Where his Incumbent (hall be Outed. (5.) Of his right to Preient whillt the Temporalities are in his Hand?. (6.) Of his Right to Prefent upon an avoidance by CeiTion. (j.) Where his Preientation (hall be void, and where it fhall be Revoked. f8.) In what Cafes his Lands are priviledged from pay- ment of Tyitks. By the Statute 17 Edw. 2. cap, 8. 'tis 3Df X)i& ftfgbt to Enacted, That if a Stranger Prefcnts to ^efent b£ &ap0. a Church which is in the Gift of the King, and he fhould recover his Right in a Trial at Law, tho' after 'tis Lapfed to the Bifhop, that fhall not prejudice his Title, fo as he Prefents within Six Months after fuch recovery,from which it maybe inferred that if the King had not Presented within that time his Church fhould Lapfe. My (a) Lord Coke tells us, That in the Reign of his Son and SucceiTor, the Clergy pretended that Lapfe fhould incur a- gainft the King, which occafioned that King to Publifh this Reiolution. Quod ab exordia n&fcente Ecclefia in Anglia Reges ad omnia Ec- cleftaftica BeneficU qualttcrcunq, vacantia Cr ad eorum collationent jpctlantia qaandocunq: placeret eis jure Regio prefentarmt. Now, the ( b) words qaalitercHnq\ vacantia feem to compre- hend as well fuch Benefices to which he had a Right to Pre- fent J are Pr&rogativa as by Lapfe, &c. as thofe which he had (a) 2 Inft. j 60. (*) 2 Inft. 360. pent fefnir* 205 pleno jure, and the Regifter tells us in fuch Cifes nullum temptts occurrit Regi ex confuetudine haEicnus obtenta in Anglia. But thelLaw is otherwife, for if the King hath a Right to Prefent by Lapfe, and fufters either the true Patron to Prefent, or any other by Usurpation, and his Clerk fhould be induc- ted and Die, the Patron and not the King (liall Prefent, for where the Law appoints a certain time both for the commence- ment and determination of the Kings Title, if he fuifer that time to expire he hath loft his Turn, as for inftanc?, in this ve- ry Cafe the Kings Title began upon the neglect of the Arch- bifhop, to Prefent within his ( H«, iai'. 2 RoL Abr. a 5 * .' W«0 25. 2 tut, 1086. X And 2o6 sung. And fo it is if the Incumbent ihould be deprived without any (k) Covin, as it was adjudged in a Cafe between the Queen and the Bilhop of Norwich ; 'tis true, in the very next Year, viz,. Anno 32 £//*,. it was adjudged otherwiie, that is, if the Incumbent be deprived it ihould not Bar the Queen of Her Turn to Prefent by Lapfe, becaufe it was the Act of the Party, which was the cauie of his Deprivation, but the true reafon is given by (/) GottldsboroHgh, viz. That the lame Per- fon who was deprived was Prelented again, and becaufe that lookt like Coilufion it might induce the Court to give Judg- ment for the Queen. Serjeant Moor, who Reports the fame Cafe tells us, That (m) Coilufion (hall not be intended, becaufe the deprivation was a Judicial Ad, and therefore the Court at firit inclined againft the Queens Title, but afterwards gave Judgment for Her. The other Reporters do not mention that the Perfon depriv- ed was Preiented again, but another, and yet the Queen had Judgment. JuHice Crcoh lays, it would be inconvenient that the Queen ihould loofe Her Preienration by the A& of the In- cumbent, which occafioned his Deprivation. Jufticc Owen and Leonard tells us, That the deprivation might be by Coilufion, and Serjeant Moor fays it might not, but that Coilufion ought to be averred, and fhould never be intended, however, they all agreed that Judgment was given for the Queen, but it/mulr. neceflarily be upon a fuppofed Coi- lufion, for it was adjudged contrary before,even in the Cafe of Deprivation, amd foit was in the Cafe of Refignation, which is the Voluntary Ad of the Party, as well as Deprivation, which is occafioned hkewife by his own Acl, and yet infuch Caie it was held that if the {n) Party Rcfigns before the King hath Preiented upon a Lapie his turn is loft, for he hath it by vertue of his Prerogative, pro ttnica vice t ant ttm. And 'tis for this Reafon that if the Kinghith Prefentcd by Co) Lapfe, and his Clerk is Inducted, and afterwards loofeth his Incumbency by ill Pleading. In an Action brought again ft him to try the Right, he (hall not Prefent again, becaufe he had but one Turn, and that was executed. Tis agreed that the King hath a Title to Prefent by Lapfe, but it hath been a Queftion if he Ihould Die before he Prefcnts, whether hisSucceiTor {hall be Entituled to it ? or whether he "•79.S3, 66. (w) Cro. Eliz. Owen 5' mm 259. 4.Ieon.jf. (n) 2|Cn>i aifc iBrownl, i6i. (o) ilcon Mn#. 207 IS not barred by the Statute 25 Edtv. 3. cap. t. by which 'tis Enacted, That neither the King or his Heirs jhM Prefent to any Benefice ill tlje Ifttgrjt of aaotl)«r, which happened in the time of his Progenitors, javing to him and his Heirs ail Presentments in ano- ther s Right, fallen or to fall in his time, or in time to come. Some of the Judges were of Opinion, that there was no fuch exception in the (p) Act, but molt of them were iatisfied to the contrary, and all agreed, that tho' he Prefentsby virtue of his Prerogative, yet 'tis in the Right of the Patron* La fly y If a Clerk neglects to Read the 39 Articles, and con- tinues in PofTeffion during his Life, the (cj) Church by this means would have been void, but then notice muft be given to the Patron, which was not done. The King Preterits on a fuppofed Title by Lapfe, but fuch Prefentation is void, becaufe as to the Patron the Church is full, till he had notice of the avoidance. C&tjet&er tfoer z Next I fhall confider whether there can can be an 3LUur= be any Ufurpation upon the King, fo as to patton on tfcc bar his Right, and whether he can Prdent iUng, &c. by Ufurpation. And as to this matter it was formerly held, that if there were an Ufurpation upon his Right, he might Preient after the Death of the Incumbent, without recovering that Right in a Writ of Advowfon, but he could not Prefent the Clerk of the Ufurper to the fame Church, becaufe it was full of him, and he muft firit be removed by a Qnare Imped it, but lie might by his Letters Patents confirm the Title of iuch Incumbent, reciting the Ufurpation, &c. but then he muft be compleat Incumbent, for if he was only inltituted and not inducted, fuch confirmation would not bar the King, but he might bring a Qnare Impedit, and remove the Clerk of the Ufurper, becaufe he was not in PofTeffion when the Confirmation was made. But now the Law is, that there can be no Ufurpation upon the King, where be hath an Inheritance in the Advowfon, fo as to bar his Right, for the Law protects it, that he can re- ceive no prejudice by any Ufurpation. This was denied, (r) Anno \% Eliz,. (viz,.) That the King had no manner of prerogative in this Cafe, tho* he claim in his own Right, becaufe 'tis neceflary that the Church ihould be full of fome Body, and as he might gain the PoiTeflion by a Prefentation without a Title, fo he might be put out of Pof- fefllon by a double Ufurpation. iP) 2 Cro, 3 SS- (e) Yd 7« 6 Rep. 29. (?) Dyer ? j 1* x Cro. $4. X z But xc8 iXiW. But tbc Chief Juftice Anderfon was of a contrary Opinion, that a double Ulurpation did not bind the King's Right, for as he could not be difleifed of Land, fo he could not be put out of PoiTeflion of an Advowfon by any Ufurpation : 'tis true, he may be put out of PoffcfFion of thoie things which are tranlitory, but not out of an Inheritance, and according to hisOpinion, a Writ of Error was brought * upon that Judg- ment, and it was reverfed in B. R. becaufe the Law fo pro- tects the King's Inheritance, that no wrong done by a Subjed fliall diveft him of his Right ; but in this cafe he muft bring a Qttare impedk^ f for he cannot prefent till the Incumbent is removed. As to the Kings prefenting by Ufurpation (.?) there has been a diftincf ion made, that if he prefents generally with- out reciting any Title it may be by Ufurpation, but if he re- cites a Title where he hath none, that fhall never be taken to be by Ufurpation, for he was miftaken in his Title, and can do no wrong to any body (/>), io that the Ufurpation mult be in the Incumbent who procured himfelfto be inftituted upon fuch a Premutation (V), and he is the wrong doer, and the Ojaire iwpedit muft be brought againft him, and he may be removed 20 years afterwards, for the Prefentation is void., and the true Patron was never out of PoiTeflion. 'Tis true, the Court was of Opinion, that the King might prefent by Ulurpation ( and hath another Quart impedit depending againft the fame Bifhop for the fame Church, tho' thefe Suits are commenced upon feveral Originals, yet the King (lull not have a Writ to the Bifhop upon the fir ft judgment, until the other Action is determined, becaufe there are feveral Detecls fuppofed to be in thefe feveral Actions, and he muft recover againft all before the Title can be apparent in him. * Yel.90. 1 Brownl. 166. 1 Roll. Abr. 372. (a) H9b« 302.. (*) Cro.Car. ;S2. (c) Hutc66. Vaugh. 14. (d) Sid. i6j. If ftfltff* 209 Ifina Qiinre impedit 0) brought, it fhould appear upon the pleading, that neither the Plaintiff or Defendant have a Title, but that the Prefentation is in the King, the Court may award the Writ to the Bi (hop for him, and that may be done without his requclt, becaufe the Judges are of his Council. This was my Lord Hobert's Opinion ( f ) in Colt and Glovers Cafe, but that it would be other wife if the Verdict found a Title in the King, where he was no party to the Action, be- caufe'tis out of LheliTue, and mecr Surpluiage, which might be anfwered by either Pany. But if the King fhould bring a Qntre impedit, and upon (g) the pleading the liTue fhould be whether he had the whole Ad- vowfon or not, and the Jury find tfiat he had a third pari and no more, but that it was his turn to prefent to that very Avoidance, altbo' the IlTue is found agajnft him, yet he fhall have a Writ to theBiftiop, becaufe the matter found by the Jury was not quite out of the ifiue, and it appeared by the Verdict that he had a Title. So that the King's Title muft appear upon the Record m pleading, and not upon Evidence where he 13 no party to the Adion, and his Title thus appearing, the Court may award a Writ to the BiOiop to admit his Clerk. HBtyte fot* If tne King fhould prefent by Ufurpation, Encumbent and his Clerk fhould be initituted, and then fljall be £>u* a Qu^re impedit is brought againft him, (for ic fa** cannot be Drought againft the King) (/;) and then he prefents another who is inliituted and inducted, if the Plaintift doth recover, this fecond Clerk fhall be Ouited by that Judgment, becaufe he came in before the full Clerks Ti- tle was determined. So if fuch Prefcntee fhould be inftituted and inducted, and then refigns pending an Action brought againlt him, and the King prefents another (i)y and then the Plaintift in the Action recovers this laft Incumbent fhall be removed, tho5 the Judgment was not had till fix Months after the Inducti- on, becaufe he came in pendente lite. Tis true, Serjeant Anderfon (k) and the Queen's Council, Anno 21 Eliz,. where of a contrary Opinion, and their reafon was, becaufe this fecond Incumbent who came in by the re- fjgnation of the other was neither party or privy to the Action ; but my Lord Dyer, who reports the Cafe, tells us, that their Opinion was not Law, for if there arc feveral Incumbents (e) 1 And. j 3. 1 Leon. 523. (/) Hob. i6j. (g) 2 Roll Abr. 386 (h) 6 Rep; is. (i) 2 Roll. Abr. 35>x. rA)Dyer|64. r ~ x 3 if*tifa\ 2*0 &tttg* feccejfivt, and they come in pendente lite, they {hall be feveral- ly removed, and fo my Lord Cbfo (/) fays, that to his know- ledge it was adjudged. But eight Years afterwards when Serjeant Anderfon was Chief JuHice of the Common Pleas, he took notice what my Lord Dyer had reported of him, whofe Book was printed but four Years before, and he tells us, it was his Opinion, that inch Clerks fhould not be removed (/k), and that he was Hill of the fame mind, but with this diftincticn, that if the Incumbent came in by vertue of a Title Paramount to that cf the Plaintiff in the Aclion. in fuch cafe he fhould not be removed, but if he came under a Title which accrew- ed fince that of the Incumbent, then he fhould be removed. If the Plaintiff in a Quart impedit{n) fhould recover, and before he hath any Wrrit to theBifhop he fhould be Outlawed, then the Incumbent refigns, and the King fuppofing he had a Title by the Outlary, prefents him a^ain, and he is infh- tuted and inducted, and then the Outlary is reverfed, the Plaintiff fhajl have a fcir.fa. to have Execution of his judg- ment*, becaufe nothing was forfeited by the Outlary, but the Prefentation, and by the reverfal the party was reftored to what he had forfeited, that is, to his Title to prefent, and by confequence the King had none. an« bB on^ ac^ ln tnisP,ace>. tnat the King hath Ccfflon* a right to prefent in this cafe , bu: then he muff take Advantage of the fir(t Avoi- dance (/?), and not fuffer another to prefent, for if fuch Pre- fentee lhoulcl die incumbent, his Prerogative (hall not extend to give him a fecend turn. This is a Prerogative which operates not only upon an Avoidance, but it muft be upon an Avoidance by Creation, and therefore if the Benefice is to be held in Commmdam with the Bifhoprick, and the Bifhop afterwards rcfiens, or is tran- flatcd to another Biihopprick, the King fhall prefent, be- caufe the Difpenfation is determined by his removal, and then the Church is void by his being made a Bifhop. But if the Bifhop dies (q) before Refignation or TranOati- on, then the Church becomes void by his death, and in fuch cafe the Patron and not the King fhall prefent, becauie the Commendam to hold his Benefice with his Bifhoprick, was as advantageous to the King as a Prefentation, it keeps the Church full, and by confequence there is no Avoidance, up- on which the Prerogative may operate, for the Incumbent is ftill in upon his (r) old Title, tho' made a Bifhop, fo that the Avoidance may happen upon his Death or Refignation, but not by his being made a Bifhop ( / ) j bux this mnit be un- derftood where he obtains a Commendam retinere after he is Ele&ed, and before he is Confecrated, for if it comes after his Confecration, it {hall not amount to a Prefentation to Catisfie the King's turn, becauie the Church is then adually void, and the King may prefent. I fhall conclude this Title with a Cafe which happened Anno 2 Will. (», it was an Eiectment for the Rectorv of ^reaC (?) 2 Cro. 691. 2 Roll. Abr. H3- Moor 3P9. Vaugh. 19. Cafes ifl ^\l^[ x«4-#Cro. EJiz. 790. (?) Vaugh, 37. (r) Davis 77. (/) Viugh- *©. W J ones «4 HafeircL 2ix mm* Halfey in Ox[ordfhirey of which one Redding was Incumbent, who in February 1687, accepted another Benefice with cure, &c. without a Difpenfation, fo that the firft Living being void, and neither the Patron or Ordinary prefenting in their refpe&ive turns the Title came to the King, and the Church afterwards became actually vo?d, and the Biftiop collated the Plaintiff, who at a Trial at Bar was nonfuit, becaufe be could not have a Title from the Biihop after it was gone from him to the King. C&bcrc tl>e &;c- ^ *'e Pre^ents t0 a Church and miftakes fentment (ball be ^^ Title, 'tis void as if he prefent ration toiD ant) tttocfegD* LaPJ*s> wncn n appears he had a Title jure plenoy 2 Cro. 252. 2 Roll, Ah. 350. Anno 18 Eliz,. it was made a Que(iion, that if the King's Prefentee upon a Laps O) fhould die after Inftitution and before Induction, whether he fhould prefent again or not ? And it was adjudged be fhould, becauie he had not the effect of his firft Prefentation ; for the Incumbent dying before In- clusion, that was a revocation of his prefentment in Law. So if he prefent one, and afterwards (x) prefents another without any a&ual revocation of the firft Prefentation, yet this fecond Prefentation is a revocation in Law of the firft, unlefs it was obtained by deceiving the King, pending a Quart impedit brought by him. If the King fhould die before his Clerk is Inftituted this is a revocation in Law, but if he aftually revoke it before Infti- tution, and afterwards the Clerk fhould be Inftituted and Indu&ed before the Bifhop ha4 notice of the revocation, yet the Prefentation is legally revoked ; for notice to the Bifhop is not material as to the fubftance of the Revocation, 'tis on- ly to make him chargeable as a Difturber if he proceeds to give Inftkution after notice. Laftly, Such is the King's Prerogative, that he may revoke his Prefentation at any time before Inftitution, and fome have held even after a Mandate for Indu&ion if before 'tis executed. %n tobat cafes He is pcrfona mixta, and therefore as he ty0 3Unt>0 are is capable of having Tithes, fo he may pre- IJitUtlegeD from Scribe in non decimando, but this is a perfo- fmiment of nal Privilege which nunquam egreditur per- Ctttjes ana torjat fonamy and therefore if he grant thofe Lands «ot* ; to another, the Grantee fhall not be dif- (*) 2 Roll. Akr.353. $ Rep, 132. (x) 2 Roll. Abr. 3:4. 1 And. }8. Lane 1 , j charged, Lapfe. 215 charged (y), becaufe a Subjeft cannot partake of the King Prerogative. s But if he make a Leafe of Rich Lands, the Leffec fhall be diicharged of Tithes, becaufe the Reverfion is in the King r», and ib thePriviledge ftill continues. There is a (hon Note in Erownlow, * that the Court was of Opinion if the King hath ancient Forreft Lands diicharged of Tithes, and he grants thofe Lands to another, that the Gran- tee (hall be difcharged of Tithes, which is contrary to the lat- ter Authorities. Lapfe. WHEN a Patron neglects to prefent a Clerk to a Bene- fice within fix Months after 'tis void, then 'tis lapfed to the BHhop, and if he doth not callate within fix Months following, it Lapfes to the Arcbbifhop, and if he neglects to collate within his fix Months it Lapfes to the Queen. And here I (hall treat, (1.) Of the rcfpe&ive Rights of the Ordinary, and of the Queen to prefent by Lapfe, and in what cafe it muft be done. (2.) Where the Bilhop (hall be entituled to collate on a Lapfe and where not. (3.) Where after a Lapfe incurred, the Bilhop (hall have no benefit by it. (4.) How the fix Months (hall be computed, and from what time. 'My Lord Hobert tells us, that a Lapfe is *>f tl>e tefpertibe n0t an intereft vefted in the Perfon, but a IBtgljts of tlje Uu{{ m j^aw t0 do that for the Patron SPSHSL 8nI> which 'tis fuppofed he would have done ttyaxutm. himfdf w> but^ad neglefted it, and therefore that a collation by Lapfe is jure devolnto and in right of the Patron. But this is denied by the learned Bilhop ofWorcefter, (viz,.} that the Ordinary in iuch cafe prefents jure pleno, becaufe the whole Diocefs at flrft was under the care of the Bifiiop, and it was a particular indulgence to Patrons, that they had any right to prefent to vacant Churches, which if they neglected, then it returns to the ancient Right, and the Biihop prefents as having an Intereit in it, and not other wife. (y) Moor 486. Jones 387. Stiles 137, Cro, Eliz. 78;. (2.) Het, 60. • 1 Brown!' 3^ ( where two Patrons pretend a Right, and one fues the other without naming the Bilhop, and recovers, and the Cik Months pais pending the Adion, for in fuch cafe the Bifhop was in no fault. So if after fuch a recovery the Defendant brings a Writ of Error upon the Judgment, and the fix Months'expire befcre the Errors are determined. So if a Qttare impedit ( f) is brought againft the Bifhop and Patron, who never presented any Clerk to him, if the fix Months expire the Bifhop (hall collate, tho' his Title ac- crewed by Lapfe pending the Writ, for he was noDifturber, (g) and *vi unreafonable he fhould loofe his Title by frau- dulent Action brought againlt htm. If his Title fhould accrew in the vifitaticn of the Archbi- fhop, and whilft the Ordinary is inhibited, by which inhibi- tion all A&sof Juriididtion are for a time iufpended, tho' he cannot infhtute a Clerk himfelf, yet he ought to prefent him to the Archbifhop, who is to do it. So if the Bifhop (h) collate, and before his Clej;k is induct- ed, the Patron prefents, in this cafe the Bifhop may refjule him. But in thefe cafes following a Lapfe fhall not incur after fix Months Avoidance, (viz,.) If the Bifhop refufe a Clerk without caufe, and then the Church becomes litigious, no Lapfe fhall incurr. So 'tis it he refufe to examine a Clerk prefented. (i) If a Qnare impedit is brought againit Bifhop, Patroq, and Clerk, and the Bifhop claims nothing but as Ordinary, and (d) Dr. W Stud. 116, b. (e) 2 Roll. Abr. 365. Hob. 201. 2 Cro. 93. (f) Hob; 270. 2 Roll. Abr. 366. ($ 2 Roli. Abr. 3*7, 367. (h) Dyer 277. (i) 2 Roll. Abr. 366.PIU0. $, 5, 6. the 216 ftapfe; the Plaintiff recovers, and then the Patron and Incumbent join in a Writ of Error upon that Judgment, pending which Writ the Biftiop dies, and another is confecrated, then the Incumbent takes another Benefice with cure, fo that the firft is void, and the fix Months pafs, and then the Judgment is affirmed, the Ordinary fihail not be entituled toprefent by Lapfe. miyzxc aftct a In forae Cafes the Biftiop fliall have no 3Lapfe ttje IBi* Benefit after a Lapfe incurred ; as if the fyop fljall tjabe Patron Prefents before the Bifhop Collates, no benefit b£-tt. he is bound to admit his Clerk, bccaufe he is only to fee that the (a J Church is ferved, which is now done by the Patron himfelf. I So 'tis if the Lapfe devolves on the Aletropolitan, and before he Collates the (b) Patron Prefents to the Biftiop of the Dio- cefs. So if the Ordinary neglecls, and within his Six Months tfce (c) Archbiftiop fhould Collate, yet if within that time the Pa- tron Prefents, his Clerk ought to be received, becaufe the Collation by the Metropolitan was Wrong, and therefore void againft the Patron. And it was my (d) Lord Hoberts Opinion that the Patrons Clerk ought to be admitted, after a Lapfe is come from the Archbifhop to the Queen, if his Prefentation is Exhibited to the Ordinary before She Prefents, bccaufe his Right continues till the Title by the Lapfe is Executed ; for he held that a Lapfe doth not veftfuch anabfolute Title in the Queen that She may Prefent at any time, for then there could be no fuch Ufurpa- tion upon fuch a Title, which is contrary to the Judgment in (e) Beverley 's Cafe; and if an Ulurpation (hall be allowed againft a Lapfed Title to the Queen, certainly the True Pa- trons Title will prevail, but this mult be underftood where the (f) Clerk dies Incumbent upon fuch ufurped Title, for the Queen may remove him at anytime whilfthe is Living. ^oto ti)s &ijc It natn been a Queftion how the Six <$onti3d fball be Months (hall be Computed, in which the Compute!) , anB Patron and Ordinary are refpe&ively to fill from tulpt time! the Church after an avoidance, that is, whether it (hall, be by (g) Kalender or Lunary Months, but \is now fettled that it muft be by Kalender, viz,. iSi-Baysfor Haifa Year, bccaufe this computation was made by Church- men, and thislikewife concerns the Affairs of the Church. ■fa) a Rol. Abr. 367. \ And. 149. (b) 2 Rol. Abr. 348. Hutt. 24. (fl 2Rbl.Abr.34S '■* 't) H>b 157- ' fa I And. 1*48, CO 7 Rep. 28. sC:o. 216. for) Yd. ioo. 6P''\£i *, t Cro. 166. 2*lnft. 360. Lapfe. 217 By the Statute of W. 2. cap. <>. 'tis F.nacTed, That if the Patron is disturbed for Six Mi nths, ib as the Bilhop Preients by Lapfe, he {hall recover damages to two years value of the Church, and if the Six Months are not patted, and the Patron proves his Title within that time, then he Qiall recover da- mages to Half a Years value of the Church. Now, thefe different Expreffions of Six Months and Haifa Year, do not make the time diftin£t in Computation, but one Expounds the other, vU. where 'tis laid that the difturbance is tor Six Months, io as the Bifhop Presents by Lapfe, &c. that concerns the Prelates, for the words are properly applicable to them ; but where 'tisfaid Damages ihall be recovered to Half a Years value, that concerns the Laity, and {hews how they are to be puniihed for a Difturbance. This being the manner of Computation, the nextQueftion will be, from what time the Six Months mult commence ? And as to that the Law is, viz,, if the Clerk is deprived, or refigns, the (i) Church (hall not Lapfe till Six Months after notice thereof, which notice the Ordinary mult give to the Patron, and infuchCafe the time (hall not be computed from the actual avoidance, and if the Ordinary fhould Die his SuccelTor is bound to give the like notice, for if he will take that advantage which his PredecefTor might do, 'tis reafonable he fhould perform that which the other ought to have done. And becaufe a Deprivation ipfo fafto, differs from that which is occafioned by a Declaratory Sentence in the Spiritual Court, therefore by the Statute 13 Eliz,. cap. 12, 'tis provided, That no Title to prefent by Lapfe (hall accrew upon any fuch Deprivation, but after Six Months notice given to the Patron by the Ordinary ; and it being in the Cafe of a Penal Statute, the Patron is not obliged to take notice from any Perfon but from the Bifhop himfelf, and itmuftbePerfonally if he Live in the fame County, and no other notice is fufricient, Dyer 369. 1 Tjeon. 31. Cro. Eliz,. 119. But if the Patron lives in another County than where the Bifhop refides, notice may be PubliChed, by fixing the very caufe of Deprivation on the (k) Church Door. Where the (7) Clerk is refufed for Iljiterature, there tee Six Months (hall incur from the actual avoidance, and not fro4n the time of notice given, &c. becaufe a (m) Patron ought to Prefent a Clerk who is qualified, otherwife his Prcfcntatv void. (i) Kei!w.4». b, x Ajjcl, $2, 3 L*an 4?. (kj Dyei 34*, b, (I) Dy-r *s; (r, (m) 4 Mod, 140. Leafes 3l8 Leafcs by Ecclefiaftical Perfons. AT Common Law a Bifhop, Abbct, Prebend or any other Single, Spiritual Corporation could not make a Leafe for longer time than he continued Bifhep, &c. but then they might make any Ettate whatfoever to bind their SucceiTors, io as it was confirmed by the Dean and Chapter. As the Bifhops had too little Power alone without their Chapters, fo being joy ned with them they had too much, and therefore it was thought expedient that the Law lhould be al- tered. The firft Statute which made any alteration in this Cafe was, Anno 32 Hem 8. cap. 28. which is commonly catted the Enabling Statute, becaufe it gave Bifhops power to make Leafes of their Lands, which they had in right of the Church, either for 21 years or three Lives, without any confirmation^ which they could not do before. This Act relates only to Bifhops, it did not extend to Par* fons and Vicars ; they had no manner of Liberty to make (») Leafer otherwife than they might have done before 5 'tis true, a Prebendary is within the equity of it, though he is not ieifed in the right of the Church, but of his Prebend, and fo is a (0) Chancellor, who had a Rectory meerly as Chan- cellor, and made a Leafe thereof without confirmation, for he is not inter minor e sordines qui famtilantur Ecclefa, But thofe Leafes which Bilhops make purfuant to this AcT mutt have theie Rettrictions, ( 1 .) They mutt be made in Writing Indented. (2.) Every fuch Leafe mutt be made to commence from the making, or the day of the making thereof. And as to this matter there is a dittinction when the Leafe is made for Years, and when 'tis for Lives, for if 'tis made for Three Lives habendum, from Michaelmas next 'tis void, becaufe Tythes cannot pais by way of Reverfion, tho' they may by way of (p) Difcharge or Reteiner. This mutt be intended upon the A 61 1 & 13 Eliz,. and not upon the 14th. which enables Clergymen to make Leafes of Houfes in Towns, for there a Leafe to begin from a time to come is good, fo as it doth not exceed the (q) Term of 40 Years. (3.) If there is an old Leale in being it mutt expire or be iuirendred, within a Year after the making the new Leafe. (o) 4 Leon. 51. («) Sid, 158. 1 Lev. 112, ' #) Yd. M- t»i^> Th.s Leafeg bp (Ecclcfiaffical perfemfr a i$ This muftbeunderftood where theBifliop makes a new Leafe without confirmation, for if there is more than a (r) Year in being at the time of the making the new Leafe, if 'tis confirm- ed by the Dean and Chapter 'tis good. (4.) There mult not be a double (/) Leafe in being, at one and the lame time, that is, one for Year^and another for Life. As to (0 Leafes made for Three Lives, they mull not be to one for Life, remainder to another for Life, &c. but the Lives mud all ware together, for if made other wife luch Leafes are voidable. Neither can a Bifhop make a (a) Leafe for 99 Years, deter- minable upon Three Lives, but a Leaie to one for Three Lives is good, becaufe 'tis the fame in efrec"t as a (*•) Leafe to Three for their Lives. ($,) The Leafe muit be made of Land?, Tenements or Hereditaments, out of which an Annual Rent may be referved, and not of things which lay in grant, as Fairs, Markets, Tyfhes, &c. (6.) It mutt be made of Lands which have been ufually Lett, for the greateft part of 20 Years, next before the making the new Leafe. Copyholds, tho* they are Eftates at will, yet they do not fall under this (?) ReftridUon becaufe they are ufually Lett. My (z,) Lord Coke was of opinion, That if Lands were in Leafe for Eleven Years next before the making a new Leafe, 'tis fufficient, for in fuch Cafe it (hall be taken to be ufuallv Lett. ^ ' But Juftice Tveifden was of a contrary Opinion. v\% That the words muft be intended of a longer time in Leaie ; for Lands which have been but once Lett, and that for io few Years,cannot in propriety of Speech belaid to be ufually Lett. Tis true, Eleven Years comprehends the greateft part of 20 Years, and fo is within that Reftri&ion, but not within the other, of being ufually in Leafe. The words may be taken in two Senfes, the one for the re- peated a6t of (*) Leafing, the other for the continuance of the Lands in Leafe, and therefore Lands Leafed many Years be- fore the making tlie new Leafe (tho' but for once) may be fail to be Lands ufually demifed, and this is the received fenfe of the Words. . (r) 4^eon,78. (/) Cro. Eliz. 440. ivtoor 2$j. ; Rep. 2. Elmr's Cafe.' 1 Mod. 204. Co Cro. Car. $5. 6 Rep. 37. a. (u) 8 Rep. 70. b. fxj 2 Cro.' 7f. fjJ Moor 7$$. <^ 1 Inft. 44. £, ftj \\»ugh. u 34. 2zo leafe$ 6p Ccclefiafficai petton*. So if Lands have been anciently Leafed for Lives, and a£ terwards kept in the (b) Bifhops Hands for Twenty Years be- fore: he makes a new Leafe, this feems to be a good Leafe to bind the Succeflor, for the intent of the Law was not to tie the Bifhop ftri&ly to the words of the Statute, but to preferve (he ancient Rent, but it mu(i be once Demifed, otherwife it cannot be known v\ hat was the ancient Rent. Qy.) The Reddendum mult be fo much Rent which hath been ufually paid tor the Land, within 10 years before the making the new Leafe, and made payable to the Bifhop and his Succeflbrs. But if Lands are ufually Lett for three Lives, under a cer- tain Fine, and an Heriot upon the Death of every Tenant, and a new Leafe is made referring the yearly Rent, and omit- ting the Heriots, yet the (c) Leafe is good, becaufe an Heriot is a Service, and not properly any annual Rmt> or depending upon it. So if a Bifhop grants the next avoidance, it fliall bind the (d) Succeflor, for tho* there cannot be a Rent referved out of it, yet 'tis an Hereditament. And tho3 there may be fome variations in former Leafes, yet if in the new (e) Leafe the fame Rent is referved which was in the very la ft Leafe before it, this fhall be accounted the ancient Rent. There is a very nice (f) Cafe relating to this matter, which is thus, The Petty Canons of St. Paul's Church madeaLeale to Husband and Wife, of the Rectory of St. Gregorie, rendring 40/, per Annum ; and the Husband alone covenanted to pay yearly a couple of Capons; but in the laft Leafe before this there was 40 /. per Annum relerved, and a couple of Capons. My Lord ifo/w held this prefent Leafe to be void, becaufe in the former Leafe the Capons were referved, and made part of the Rent, but in the new Leafe there was only a Covenant to pay them, which would not bind the Wife if fhe furvived, and therefore it would not amount to a refervation, which it might have done if both had Covenanted ; and in this Cafe a diftinclion was made between a fble and aggregate Corporation, (vUJ) That if a Sole Corporation makes a Leafe not warranted by the Statute 13 ElU. it Ilia 11 bind him, but not his Succeflor, but if a Corporation aggregate make fuch a Leafe, 'tis void themfelves. Tis plain, that by this Paragraph there muft be a certain and determinate Rent expreffed in the new Leafe ; and (b) Cro.Eliz.375- Sid. 416. (c) . *j, (m) Bridg; 29. Cfq. Car. 47, Ley. 71. EsnkS LeafeS bp (JEccIefiaffcal petfoH0» 123 imlefs it can be taken as diftincl grants, and fo to make the firft good, and the other void againlt the SucccfTor, as where the(n) ancient Fee hath been encrcafed in a new grant, m fuch cafe the grant of the Office is. good, and of ib much which was the ancient Fee, but it fhall be void as to the reft. And in all {o) thefe cafes of Fees, it muft appear in plead- ing, that 'tis an ancient Fee, for tboJ the Office is ancient, yet if the Fee is not fo, the grant will be void. And 'ris to be obferved, that all thefe grants of Offices are to be made as ttfttal before (p) the Statute, therefore a grant of an Official by an Archdeacon, or of a Commiilary bv a Bifbgp, is void againft the Succedor, if granted in Reverfion wher^it was ufually granted in Pojfcffion before the Statute, for thefe Offices are Hereditaments, and belong to Biuhops and Arch- deacons, and fo are comprehended in the very words of the (q) Statute; and therefore if they were granted in Reverfion fuch giants may be dill made, but then they mutt be confirm- ed by the Dean and Chapter. Some are of opinion, that a grant of the Office of a Com- mifTary is good but during the life of the Grantor, for tho1 an F.cclefiaftical Jurifdiduon maybe executed by a Substitute, yet his ads are in Law the acls of him who deputes him, and he mu(l be anfwerable for them, and not the Deputy ; fo that if fuch (r) a grant fhould be good againft the Succeffor, then he mud be liable to the ads of a Perfon whom he never deputed, which feems to be unreafonable : However, (/) the grant of the Office of Regifter in Reverfion hath been held good ; and that 'tis fufficient evidence to pro- duce but one grant thereof in Reverfion before the Statute, which may be an inducement to believe that it was granted fo anciently. . Now, tho* this Statute i Eliz,. faith, That all grants made by Bifhops, other then for Twenty one Tears, or three Lives, &c. and whereupon the accuftomed yearly Rent floall he referved, [hall be void ; yet a grant for one Life is good, but then it mud be of an ancient and neceffary Office ; for if a Bifhop had not power to grant fuch Offices for the life of the Grantee, he would be but ill ferved by Men whofe Titles would be precarious, but the grant of fuch an Office to one for life, and afterwards to another in Reverfion is void, and fo 'tis where the grant is made to (t) two for life ; as for indance,theBii'hop of Salisbury granted the Stewardfhip of his Mannors to two for life, to (») 2 Brownl. 237. (0) 1 Brownl. 182. (p) Cro. Car. 258. Jones 263. Wineh. Entr. 22. (q) 2 Rol. Abr. 1 j^. Jones 311. WNoyrj*, (f) Cro.Gar.279 Jonessio. March, 38. Cro. Car 555. * Rol- Abr. 153. Winch. Fntr. 22. (r) io Rep, so V i be/ 2 24 KLcaftS Op Ccclefiaffical jetton** be exercifed by them or their Deputies, and 20 Nobles Fee, iffuing out of Lands, parcel of his Biofhprick ; this grant was confirmed by the Dean and Chapter, but it was held void a- gainft the SuccefTor ; for tho' a Bifhop may grant an ancient Office to one for life, bccaufe of the necelhty of fucha grant, yet 'tis not necefiary that he fhould grant it to two for their live?. And if it fhould happen that after fuch grant, one of the lives fhould die in the life time of that Bfhiop who made the grant, and then the Bifliop fhould die, fo that there is but one lite in being againft the SuccefTor, yet the grant is void againft him, becaufe it was void when raft made, and (hall never be good by any contingency. But a grant, to one for life rauft be confirmed by the Dean and Chapter, becaufe 'tis a grant at Common Law, 'tis not warranted by this Statute 1 Eliz,. for that requires it fhould be for Twenty one Years or three Lives, but a Corporation ag- gregate may make fuch a grant without confirmation. Home, Bifhop of 11 wekefter, about four Years after the mak- ing this Statute, granted (h) a Rent of 4/. out of the Mannor tolWuiltham, being parcel of the pofTedions of his Bifhoprick, to Dt. Dale a Civilian, for his life, and this was pro confilio im- penfi? & impendendo, 'tis made a Qiiere in Dyer whether this Leafe was void .againft the rucceffor upon this (V) Statute, t was agreed to be'good againft the Bifliop himfelh but it was held void againft the Succcllbr, becaufe it was not a grant of neceffity, and it was not of an Office, but only a voluntary acl of the Bifhop to choofe inch a Man to be his Council, who might not be approved by his Succeffor. (2 .) By this Statute the form of the Leafe C&tjat (ball be js directed, but yet if 'tis made in another accounrea ttje ac- nianncr it (hall not be void againft the Bi- cuftomea ISent. fhop wbo made itj but 0Ij|y agajnft his Sue- ceflbrs, who may affirm fuch Leafeby receiving the Rent. Therefore, where a Bifliop made a Leafe of the Advowfon of an Archdeaconry (y) for Twenty one Year?, which he had in right of the Church, this is good againft himfelf, tho' it was not of (*) a thing manurable, out of which an yearly Rent could be referred, as directed by the Statute, for it was never intended to retrain the Bifhop in poffeffion, fo that he could not do any a& to bind himfelf or his Lands, during his own time, for then he could not Leafe any Land which had not (a) Dyer 370. (x) 10 Rep. 61. b, (j) 1 And. 244. Cro.Eliz. 207; I Leon. 2©s< (z,) Cro.EUz.6oj>. sCro, 17*. 10 Rep. 6o.>. : been leafcjs bp Ccclcfiafffcal l^ctfoiw. 22? been ufually Lett before the making the Statute, but mnft Ma- nure it by his own Servants; neither could he take any be- nefit of Wafts, but only the Herbage with his own Cattel?. This was Bi/hop Jewelti Cafe, who Anno 30 Eliz,. * made a Leafe of a Fair for three Lives reserving the ancient Rent, this was good againft himielf by way of contract between him and the LeiTee, but the Rent was not incident to the Reverlion, therefore the Leafe was void againft his Suc- ceflbrs. 'Tis true, that at the latter end of that Cafe 'tis refoJved, that the Law would have been the lame if the Leafc had been for twenty one Tears, but 'tis fince ruled other wife, for i( a Leafe of Tithes is made for three Lives, f this is not good againft the SucceiTor, becaufe nothing was deinifcd but Tithes which lie in Prender, and no Kent can iffue out of them, there is no certain place wherein a Diftrefs can be taken, ** nor any remedy for Rent if it fhould be denied, for the SucceiTor cannot have an Action of Debt for it? becaufe 'tis a Freehold, nor an Affize, becaufe there is no Land to be put in view, ff But if it had been a Leafe for Tears (<,), there the SucceiTor might have an Aclion of Debt, not upon the privity of Con- trad, for he is not in Law privy to the Contrail of his Pre- deceffor, but upon the privity of Eftate, for he hath the Re- verfion, and 'tis for that reafon that an Aflignee of the term fhall be charged with the Rent, for it is attendent upon the term it felf. So that'if a Bifhop makes a Leafe for years of Tithes ren- dring Rent, 'tis good againft the SucceiTor, becaufe 'tis a Rent which is incident to the Reverfion, and goes to him, which it would not have done, if it had been a Leafe for Lives, The Statute 32 H. 8. requires that a Leafe made by a Bi- Oiop muft be of Lands ufually Lett for the greateft part of twenty Years, &c. other wife it fhall be void, and the Sta- tute 1 Eliz>. gives the Bifhops Power to Leafe their Lands ge- nerally without mentioning that the Leafe muft be made of Lands ufually Lett, &c. yet it muft be made of fuch Lands or 'tis void (aj, becaufe this Statute 1 Eliz* requires,- that the ac~ cujlomed Rent fhall be referved upon every Leafe, which can- not be if the Land had not been ufually demifed. So the Statute 32 H. 8. requires, that if there be an old Leafe in being, it muft expire or be furrendercd within a • 9 Rep. 3. f 2 Cro. in. Moor 778. •* 2 Cro. 173. ft Budres'326; [if) Rayra. 18. 2 Sand, 303, 304, {a) Cro. Eliz. 874, »7$, Y 5 Tc?4- 726 teafes* Dp ecclefiafffcal jSJecforusj Year after the making the new Leafe, all which is omitted in the Act i ElU, but yet a Leafe made purfuant to it is not good (b) againft the SucccfTor if the old Leafe doth not ex- pire, or ("hall not be furrendered within that time, unlefs ilich Leafe is confirmed by the Dean and Chapter, but if confirmed, then if there is a Leafe of twenty one Years in being, the Bilhop may make a new Leafe of the fame Lands for twenty one Years more, to commence from the making thereof, which fhall bind the SuccefTor, and thefe are called concurrent Leaies, of which I fhall treat particularly here- after. But a Grant of the next Avoidance is not good, tho' con- firmed by the Dean and Chapter, becaufe 'tis not an Heredi- tament out of which an yearly Rent can be referved. And it muft be out of an Hereditament parcel of the PoffeJ- [tons of the Bi/hoprick (c), and therefore if an Archdeacon hath a Parfonage appropriated to his Archdeaconry, and he Leafes the Glebe for fifty Years, which is confirmed by the Bilhop being Patron, and by the Dean and Chapter this is void a- gainlf. the SuccefTor, becaufe this Confirmation palled no Eftate, 'tis no more then an alTent to the Leafe parcel of the PoiTelTions of the Archdeaconry, and not of the Bifhoprick. So where the Bifhop himfelf granted to the Mayor and Commonalty of Wintm 00, that they might build in the va- cant places of the City and dwell there, which Grant was confirmed by the Dean and Chapter, yet the Soil was Hill in the Bifhop, and his Succeflors were not bound by that Grant, for it enures only as a Licenfe and no more. Both the Statutes before- mentioned relate ojily to Bifhops, the next concerns Par Jons and Vicars, J5arfoR0 anl) flBtcare,] At Common Law, Parfons and Vi- cars might alien their Glebe with the Confirmation of the Bi- fhop and Patron, and ihcy had no restraint put upon them till Anno T3 Eliz,. (e) and then an Act was made which is penned almoft like the former Acts, and which is a * general Law, for it concerns all the inferiour Clergy, and it re- quires, : That all Leafes or E (fates made, done or j&uffmt) hy Makers md Fellows of Colleges, Deans andChapters, Mafters and Guardi- ans of Hofpitals, Parfons and Vicars, &c. of Houfes, Lands, Tithes^ Tenements cr Hereditaments, being parcel of the poffeffions of the Church other then for twenty one Tears or three Lives from »» Bridgm. 30. (c) Cre. Eliz. 430. l.ioor ;9 3. Contra. iMcd 20$* (<0 Het. j 7. (t) 13 Eliz. cap. 10, leafe* ftp (EccleGatHcal petfong. zi7 ttjc making thereof, and thereupon the accuftotoed yearly Ken: j> more [ball be rlferved and pliable daring the term jhall be void. Upon this Statute it hath been observed, that a Leaie may commence from the making thereof, whereas by the enabling Ad 32 H. 8. it might commence from the day of the making as well as from the making, ZTc. likewile that the word Suf- fered (/") was pat in to prevent any Alienation by Vmt and non-claim, for if he doth not Claim he fuffers it to pais. Leaies made purfi^nt to this Act, mult likewiie have the fame rcftricnons as required by the Ait 32 H. 8. but they muft be confirmed by fhofe who by Law are to confirm the fame. This Statute {g) hath beeq conftrued liberally to prevent all Evafions, for whereas it faith, that Leafes made by Ma- kers and Fellows of Colleges, other then for twenty one Years /hall be void, theie words fhall comprehend all other names of Corporation, as War den and Fellow /, Warden and Schollars, and alio Colleges which are Temporal, and tor the advance- ment of feme Arts and Sciences, as Colleges which are Eccle- fjaftical or rntxt. So where it mentions Leafes to be made by Deans and Chap- ters (fi)9 thofe words extend to a Chapt&i where there is no Dean. By a Statute made in the very next Year (7), the power of making Leafes was a little enlarged, for whereas by the A Y 4 wry 228 JUafes bp CcclefiaCical pctf onsf . very words of the A£t, which is a general Law, and need not be pkadcd. So a Leaie made of a Houfe in a Market-Town (/) for twenty one Years only, to commence from Michaelmas after the date thereof, there being two years of a former Leafe not expired, this was held to be a Leafe in Reverfion, and fo void within this Statute, tho' confirmed, becauie it did not com- mence on the day it was made, • Now if a Parion who is enabled by this Statute to make a Leafe for forty Years, dottidemile a Houie for twenty Years, and eight Years afterwards he makes another Leafe of the fame Houfe, and to the fame Perfon for twenty Years more, this is no concurrent Leafe, becauie the acceptance of the fecond Leafe by the Leilee hath made hisfirft Leafe void. And after all, Sir Simon Degg tells us, that it hath been a Queftion whether aParion can make any manner of Leafe to bind his SuccefTor (»;), becaufe by a Statute made in the very fame Year of the Queen, 'tis ena&ed, that Leafes made by Far Jons and Vicars {"ball continue no longer then they (hall be refjdent, and ferve the cure without abjence above eighty days in any one Ytar. This Queftion did arife upon a very notable conftrudtion of thofe words, Ok,.) That every Leafe made by a Parion fhould continue no longer then 80 days after his death, and then to be void, becaufe he bad been abfent fo long from his Cure, and this is called an equitable expohtion of the Statute, it being made for the advancement of Religion, and to avoid Dilapidations^ and we have a Report from Jujiice Croke («) of a judgment in point. But Serjeant Moor (0) who Reports the fame Cafe, tells us, the Judges were divided in Opinion upon this matter, but one would wonder what'ihouldoccafion fuch a Divifion, 'tis true a dead Parion can be no longer ReGdent upon his Be- nefice, but certainly the Refidence intended by the Statute mult be fuch which enables him to ferve the Cure, and that can never be intended of a dead Man, neither mult he be abfent above eighty days in one Year, but when he is dead he muft be abfent for ever, fo that Death cannot in propriety of Speech be called abjence, [01; a Man cannot be laid to be abient who is not in being, it muft be a voluntary abfence whilft the Par- fon is living and might return ; and for this reafon it has been O) held, that if he is fufpended from his Cure for eighty (0 1 Vent. 2+4. \o) Moor 270 {/) 2 Lev. er. (ra) ,3BIi M) 2 Lev. 6x. 1 Vent.244. (0 Dyer J72, b. (/) Qo. Eliz, 78, CO Cr0« Eliz/ 88. 1 Roll. Rep. 403, 3 BvUft. aox. 00 Cro. |% 49°; But *3o leafes bp Ccciefiafftca! \pet$o\\& But the Law feems to have left it in his power to avoid fuch Leafe in his life-time by a voluntary abfcnce from his Cure for eighty days, and a Confirmation will not help it, becaufe that cannot make a Leafe good which the Law hath made void, and tho' there (hould be a Covenant in fuch Leafe that the Parfon would not abfent hirnielf, &c. and a Bond for performance of Covenants, yetthey are both void : But if the Covenant is that the Lellee fhall enjoy the Lands for a certain number of Years, if the Par/on /hall fo long live, he doth thereby take upon himfelf not to do any tVt which fhall determine the Leafe, and therefore if he rc- figns or is abfent for eighty days, an Aciion of Covenant lies again ft him<*), ^ut ** *njs Claufe is added, viz,, or as long as he continue Parfon there, in fuch cafe he may refign. Concurrent JUafcg.] But an invention was found out to prejudice the SuccelTor, notwithstanding this reftri&ive Act, 13 Eliz,, for Parfons and Vicars would make Leafes for twenty one Years or three Lives long before the Expiration of a former term (7), and therefore another Statute was made to prevent this mifchief reciting the Statute 13 Eliz,. which declares all Leafes void which are made by Maftert and Fellows of Colleges, Deans and Chapters f M r after s and Guardians of Hof- pitals, Parfons and Vicars, 0% ant Kfyt having Ecclefiafticd Livings, or Lands , Tithes, Tenements, or Hereditaments, parcel of their Poffejfions, or any other Spiritual Promotion ether then for twenty one Tears or three Lives, where any former Leafe was in be- ing, and not to be expired, fiirrendered or ended within three Tetrs next after the making the new Leafe, The general words of this Statute, viz*, or any other having Ecclefiajiical Promotion fe) do not comprehend Bifhops, be- • a life the particular enumeration of Perlons of an inferiour Decree, fheweth who are meant, and therefore thofe general words fhall not draw in aSuperiour order of Men. By the Statute 32 f/.8. (a) Bifhops may make concurrent Leafes without Confirmation where the old Leafe is to expire within a Tear after the making the new one, and they may make fuch Leafes with Confirmation, where more then three Years of the old Leafe are not expired at that time, but they cannot make a concurrent Leafe for lives where there is a for- mer Leafe for Tears in being nece converfo, but other Ecclefi- aftical Perfons cannot make fuch Leafes unlefs the former term is to expire within three Years, and if fo^ they may do it without Confirmation. ' (*•) x Brcwnl. 115. (?) IS .Eliz. cap. ir. (z>) Gculdf. 17*, (j) 5 Rep. ^ Coa- leafeg bp Ccclefiaffical pertains, 2 3 1 Confirmation of a Leafe may be corn- et confirming, pared to an attornment o( Tenant for 25252S ^ LifeorYearstohimintheReverfion, for ocncr ncauf* u ^^ ^n a{yent t0 a new Lord) onIy with this difference, that Confirmation is fomething more, for that is an afTent coupled with an Intereft, becaufe the Patron and Ordinary have a right in the thing confirmed, one hath ]m conferendi, and both together may charge the Glebe when the Church is not full, they may likewife Con- firm the whole or part, which cannot be done by Tenant for life, in order to perfect, the Grant, for he cannot aflent to part of the Eftate granted, but his attornment mutt enure to the whole. There is an ewfr* judicial Opinion in Moor (Z>), viz,, that if a Leafe is confirmed, and then another Leafe is made of the fame Land, and by the fame Perfon, to commence after the determination of the firft Leafe, and then a third Leafe is made to commence prefently, and this is confirmed before thefecond Leafe, yet that (hall not take place, for the con- firmation paifes no intereft, it only makes the Eftate durable and effectual. Neither will a Confirmation make a Leafe good which wants any of the Qualifications required by the Statute 32 H. 8. both in refped to the continuance of the Eftate, and the Rent, becaufe the reliraining Statutes, vie. t &.13 Eliz. make all fuch Leafes void, fb that Confirmation leems only neceffary where the thing demifed is not all in poffeflion, or that the old Leafe is not expired, &c. But fince the Policy of the Law hath made Cohftrmation neceffary to perfect iome Leafes made by Eeclefiaftical Per- fons, therefore where that is to be done the Law requires it fhould be by thefe Perfons following;. 00 Leafes made by the Archbifhops and Bifhops mutt be confirmed by the Dean and Chapter. They may likewife be confirmed by Deans and Chapter? (c ) where there are two,and the greateft part capital or iter con- gregati (hall conclude the reft. A meer commendatory Dean (d) cannot confirm a Leafe, but if he is ele&ed Bifhop, and before Confecration doth ob- tain a Diipenfation to hold his Deanry in Commend&v, fucli Dean may Confirm. If the Dean and Chapter (e) confirm any Leafe made by a Bifhop before 'tis enrolled, fuch Confirmation is good. * — . , (b) Moor 66. (0 I RolLAbr 4770 &) Pa.'rr.. 4*>. (() 1 Roll. Akr. 47H (2c) L 23 a Icafes t»p (Ecclefiaflical perton& (2.) Leafes made by a Prebendary after he isinftalled, muft be confirmed by the Bifhop, Dean and Chapter (/), unlels where the Queen is Patron, and then She and the Dean and Chapter arc to Confirm, &c. and where the Bifhop (g) is Pa- tron of the Prebendary, his Confirmation alone without the Dean and Chapter is not good but only againft himfelf, becaufe the Patronage is parcel of the poffedions of the Bifhopprick, (h) but where the Archbifhop is Patron of a Prebendary he may confirm his Leaie without the Dean and Chapter. So where a Prebend lying in one Diocefs (i) is united or annexed to a Prebend in another Diocefs, a Leafe by the Prebendary is good if confirmed by the Bifhop of that Diocefs whereof he is a Prebendary, and not by the Bifhop where the Prebend lies, for tho* the Prebendary is inducted by him, yet he ows Canonical Obedience to the other Bifhop, of whofe Cathedral he is a Prebendary. A Prebendary made a Leafe for 70 years (l), and the Bifhop, Dean and Chapter confirmed dimifjlonem pred. for 50 years, & non ultra, yet this Confirmation goes to the whole term, for the intereft was vetted in the Prebendary, and the Confirma- tion was only an Evidence of the confent of the Dean and Chapter to the Leafe, and not to the Intereft which paffed by it, and therefore cannot be apportioned, but if they had con- firmed the Land for 50 years, it had been good for fo much and no more. By which we may obferve a difference where the Confir- mation relates to the Ellate, as it did in this cafe by the words dimiffionem pred., and where it relates to the Land it felf, for in the one cafe it enures to the whole Eftate, but in the other only to the term limited by the Confirmation and rio more. A Prebend was ufually lett excepting the Crab-trees(l), the Prebendary made a Leafe of it without this exception, and it was adjudged that it was void for that very reafon, for the Crab-trees being not excepted, there was more let by this new Leafe then what had been ufually dcmifed, which is contrary to the Statute 13 Eliz,. cap. 10. fo that the Succeffor was de- prived of the benefit of thote Trees, and of the Soil. One would think, that the omiflion of fuch an unufual exception fhould not make the Leafe void, for it feerris not to be within the intent or meaning of the Law, fince that was made to prevent Dilapidations, and impoverishing the Succef- for, who probably might have very little benefit by Crab-Trees. <0 1 Roll Abr. 481. (?) 1 Roll. Abr. 479, 481. CO 3 Bulft. 190. (i) Cro." ■ • ~.. 587. 1 Roll. Abr 479. >id- 7:. (-' ) Cro. Eliz. 447. s Rep. 8. r And. 47. f \ *C > 453 5 B lift ?so icdm, &# leafes bp <£cclefiaflical pctfong. z?? But Mr. Buljlrode, who reports^ the fame Cafe tell us, that the Leafe was ulually made of this Prebend, excepting Oak, A[h and Crab-trees, and there the omifTion of fuchjan exception might be prejudicial to the SuccefTor for want of the Lops of fuch Trees. (3.) Leafes made by Deans muft be confirmed by the Bi- fhop and Chapter, unlefs in the cafe of the (7) Dean of Wells, and he may make Leafes without the confirmation of the Bi- fhop, and only with the affent of the Chapter, for the old Deanry was furrendred which was confirmed by Parliament, and anew Deanry erected, and the nomination of the new Dean was given to the King and his SuccefTors, and power to grant his PofTefTions as the old Deans had ufually done, and becaufe they had made grants thereof without" confirmation of the Bifhop, therefore the new Deans might do fo too. The Leafe of a Dean (*,) who is Sole-feifed, may be con- firmed by the Chapter. (4.) Leafts made by Archdeacons muft be confirmed by the (a) Bifhop, Dean and Chapter ; but where the Bifhop is Pa- tron it may be confirmed by him alone, Cro. Eliz,. 430. f 5.; Leafes made by Parfons and Vicars after induction, muft be confirmed by Patron and Ordinary, but the confir- mation of (£) the Patron fhall bind, according to the Eftate he hath ; for if he is Tenant in tail his confirmation will not make the Leafe good,*, without barring the Entail, or difcon- tinuing that Eftate, for otherwife the IfTue in Tail will avoid it. If three Coparceners are Patrons, the Leafe muft be con- firmed by them all. The next Avoidance was granted, then the Incumbent made (c) a Leafe for years, which was confirmed by the Pa- tron and Ordinary, and the Church being void, the grantee of the next avoidance Prefented,and his Clerk was inducted, and avoided this Leafe during his time, then he died, and the Pa- tron who had confirmed the Leafe prcfented another Clerk, and it was adjudged that he fhould hold it difcharged of the Leafe, becaufe the whole term was evicted by his FredecefTor. 'Tis generally agreed, that the Parlon who makes (d) the Leafe muft be perfect Incumbent, either upon a Prefenlation or Collation, for if one enter and poiTeffeth the Glebe without any manner of Right, and then makes a Leafe, which is con- firmed, yet 'tis void. O; iRol. Abr. 478. Dyer 273. (zj) i Rol. Abr.478. (a) 1 RoL Abr. 478. Dyer 239. . (b) 1 Rol. Abr. 361. (c) Cro. Car. 582. Jones «J4. (<0 1 Rol. Abr. 480. Therefore: 2 34 &mk$ fep Cccttfiaff ical Perfucce(Fo? totll mafee a mottmble ^eafe vvhich is void in it leafe gootu felf without Entry or other Ceremony to make it fo, will not affirm fuch Leafe. And as to this matter, the Law diftinguifhes between Lea fes which are made by thofe who have an abfolute, and others who have (Q a qualified Fee; the firft are Bifhops, Deans (1) $ Rep. is. Cro. Car. 376. (/) 1 »oi. Abr. 47+. (d) IUym. 14, («) 1 Rol. Abr. 8jo. 1 Rof. Upp. 287. 3 Bulft. is*. Co, Lit. 4$, if) 18 Etjzo cap. 6. I the 338 libel. tive places of Oxford, Cambridge, Winton and Eaton, the very Market Day next before the Rent was Due, and all Leafes, Bonds and Ajfarances to the contrary floall be f^oid. Bin this Ail is not to extend to Leafes made by St, John's Col- lege in Oxon, of their Alannor of Fifeild. LeSurer. See Preaching. HP HE Office of a Minifter may be Executed by one who -*- hath no Title to* a Benefice, and that is, by a Lecturer, and 'tis furfkient if fuch Perion is in Deacons Order. But the Law requires that fuch Lecturer fhould not only have the Confcnt of him by whom he is Employed, but like- wife the Approbation and Admiffion of the Ordinary, and he mull hkewife at that time of his Admi(T]on,Subicribe the Decla- ration and Acknowledgment required by the Statute \\'Car. 2. cap. 4. and this he mutt do in the prefenceof the Bifhop, and get himto certiiie it under his Hand and Seal, which Certifi- cate and Declaration he mutt Read within three Months fol- lowing, in the Pariih Church where he is to Officiate, onfome Sunday, in the time of Divine Service, and in the prefenceof the Congregation, and if he negle&s he loofes bis Place. He muft likewife have a Licenfe from the Bifhop, and muft Read the 39 Articles in his Prefence, and Declare his unfeign- ed A (Ten t to the lame, and if he Preachcth in the Week Days he muft Read the Common Prayer for the Day when firft he Preachetb, and Declare his AfTent to that Book, and (hall do the fame the firft LeBure Day in every Month, fo long as he continues Lecturer y if he negledts or refuies he is difalled to Preach till he Conformeth. And if he fhall Preach before he Conforms, he ihall be Committed for three Months without Bail, by a Warrant of two Jufticjs of Peace, the Offence being certified to them by the Ordinary. Libel. HT HIS is a Declaration or Charge Drawn up in Writing, ■*• in any Action at the Civil Law, to which the Defen- dant is obliged to Anfwer, and therefore 'tis reafonable he fhould have a Copy of it, which hath often been Denied by Ecclefiaftical Judges; and for this Caufethe Statute 2 Hen. «$. cap. 3. was made, by which. 'tis Enacted, That the Copy of the Libel flpall be Granted to the Party, and for this purpofe we have a Writ in the Regiffcr framed upon that very Statute, Di- rected Ifturffp. 539 refted to the Dean of the Arches (g) or his Commiflary, to de- liver a Copy of the £tfrJ to the Defendant ^ p^^ &»/*/» Librarum* But the ufual Courfc in fuch Cafe is, to move the Courts at Wejlminftcr for a Prohibition (b)\ and FitzJierbert tells us, the Party may have an Action on the Cafeagainlt the judge who refutes it. Liturgy. \A7H EN the Chriftians were no longer in fear of the Vio- * * knee and Perfecution of the Heathens, and in that Age when the Church came to be Settled, that is, from the time of Conjiantine to that of St. Auftiny we find there was a Liturgy in the Eafiern Church. The firlt Cyrill of Jerttfalem mentions iome Parts of an an- cient Liturgy ufed in that Place, both in reipeel to the form of Baptifm, and the Celebration of the Eiichariit. St. Bafd compofed a Liturgy himlelf, which is to be feen in the Bibliotheca Patrum, and in his Book de Spirits Sancio (i), and he tells us how the Service of the Church was directed by Rules and Rubricks. In St. Cbrifofomes time (£), Omnes mam eandemq; preccm con- cipiebanty and this was riot only a Publick Prayer, but a Pub- lick Form ; for in that Collection of his Works let forth by Sir Henry Savile, we find a Liturgy of his own making, which was Translated out of the Syriack by Mafias , and ufed gene- rally throughout all the Greek Churches. Now, if it fhould be Granted that premeditated Prayers are not required by God in our Private AddrelTes to Him, yet from, thofe lnftances already mentioned, fuch Prayers were always held necefiary in the Publick Services of the Church, and this farther appears by the Form prefcribed by our Saviour Him* felf, who when we Pray commanded us to fay, * Our Father? &c. and -f St. Matthew tells us, that he went away a^ain and Prayed the Third time, faying the feme Words. The Apoltolical Canons mention fome Set Forms of Prayer both before and after the Communion ; and St. Baftl and Sr„ Chrijoftome beforetnentioned did not only compofe Set Forms themfelves, but they -afcribe Set Liturgies to be cornpoftd by St. Marh and St. James; and the Adversaries to fuch Forms have no other plaufiblc Pretence to deny thefe Authorities, but1 by alkdging thefe Liturgies to be Suppofitious, which is an («) Rcy.58. CO Moor 9 1 7. K N. B. 43. (>) Bafil Al.lermanbnry. St. Martin Ludgate. St. Peter Cornhil. - - St. Stephen Colemanftreet. St. Sepulchre, I 100 ICO 1 20 100 120 120 200 ipo 140 132 100 100 150 160 no iio 200 140 200 Alhallows Breadftreet, and St. Jo/;« united. Alhallows Great and £. i 50 -Sr. Margaret Pattons, anlSt.Gabricl Fanchurch. 120 >:. J^my at £#//, and St. Andrew Hubbard. 200 St. i$/4ry Woolmth, c.t. J/^7 Woolchurcb. 140 fcttwji; Eaft cheap, and St. Martin Or gars. 140 v:. Mary Ah church, and St. Lawrence Pountney, 1 20 St. ^nrji Aldermary, and St. Thomas Apoftle. 150 St. yk&zrjii /* £02?, St. Puncras and Alhallows. 200 St. Mildred Bread,lreet, Ft. Margaret MofeS. 1 30 '■ l.. Micbal Qveenhith, and Trinity. 160 rO!l-Fl!Mrcc:, wl'St. Gregory, 120 CO o OO 0 00 00 ' oc 00 00 00 CO II 00 00 00 CO CO 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 00 o 00 o o o 0 0 o 0 o o o o o o o o o o o o o 0 o St. 00 0 00 o /. 347 i. rf. no 00 0 130 120 00 0 00 0 ICO 00 0 I4O 160 00 0 00 0 totmoHiClercp* St. Mary Somcrfet^ and Sr. Mary Moumhaw. St, Nicholas ColeMy, and St. Nicholas Olaves. St. Olave Jury, & Sr. Martin Ironmonger-Lane ■ St. Stephen Walbrrook, and Sr. Bennet Sheer fog. St. Swithin, and St. Mary Bcthaiv. St. Vedaft alias Fofters, St. Michael Ofiern. The Sums above-mentioned are to be the 40***/ Mainte- nance of the refpe&ive Parfons, Vicars, &c. befides Glebe and Perquifites. The Aldermen or their Deputies and Common-Council- men of the feveral Wards with the Churchwardens, and one or more of the Parifh to be nominated by them , or any five of them, whereof the Alderman or his Deputy fiiall be one, fhall alTefs proportionably on every Houfe and Heredi- tament whatfoever, except Parfonage and Vicaridge Houfes, the laid refpecYi ve Sums, or fo much of it as is more then wrhat ^eacb Impropriator is enjoined by this Act to follow. That Perfons aggrieved by fuch AfTefment may complain to the Mayor and Court of Aldermen within fourteen days, &c. who upon fummoning the Party grieved, and thofe who made the AfTefment may determine the lame without any farther Appeal. If the Alderman, Deputy, Common-Council-men, &c fhall negledt to make any AiTefment, being lummoned and required by the Lord Mayor and Court of Aldermen, or the Incumbent fo to do, then the Lord Mayor and Court of Al- dermen may give Authority to any Perfon or Perfons to do it. The AfTefTors within ten days after an AiTefment made and Appeals determined (if any iuch {hall be J (hall make three' Tranfcripts thereof in Parchment and fubferibe tLc fame, one of which fhall within twenty days after fuch Sub- fcription be given to the Lord Mayor, another to the Regiftry of the Bilhop of London, and the other to remain in the Veftry. The Sum aflefled mu(t be paid at the four molt ufual Feads Quarterly, or within fourteen days afterwards by equal pay- men: to commence from fuch time as the Incumbent /lull be- gin to officiate. The Impropriators fhall allow what they ought to do be- fore the Fire, and fuch allowance is to be part of theParfons Maintenance. If the Inhabitants refufe to pay, &c. upon demand at the Premifes, the Lord Mayor, upon Oath of fuch refufal, 348 ILo^g-Dap, may ifTue out bis Warrant for the CoHeclor with the af- fiftance of a Conliahleto Diftrain, &c. The Lord Mayor negledting, &c. to execute the Powers granted by the Act, the Lord Chancellor or Keeper, or two Ba- rons of the Exchequer, may by their refpective Warrants do what the other ought to have done where the Parishes are va- cant fince the Fire, the furviving Incumbents of Parifhes therewith confolidated iliall have the like Remedy for Tithes fettled by the faid A6t as if actually prefented into both Pa- rities fince the Union. That no Court or Judge fhall determine any Controverfie arifing upon the Act other then the Perfons therein Autho- rifed. That the Warden and Minor Canons of St. Pauls, may re- cover the Duties arifing within the Parifh of St. Gregory as formerly. Lorcfj-Dap IT was warmly difputedin the laft Age whether, * (i.) The Sabbath was inftituted at the Creation of the World, a nd kept by the ancient Patriarchs ? (2.) Whether there is any Morality in the fourth Com- mandment ? (3.) Whether the Sanctifying one day in feven is Ceremo- nial only. (4.) WThether the Lord s-day was founded on the Autho- rity of the Church, guided therein by the praclife of the Apoftles, It would be very tedious to recite all the Arguments on both fides, I (hall therefore give the Reader a (hort account of at I think to be the molt material. It hath been affirmed that God inftituted the Sabbath in Paradife, that it was obferved by the ancient Patriarchs be- fore it was given by Mofes as a law to the Jews, and this appears from the Hiftory of the Creation written by Mofes himfelf, who tells us, God made Heaven-and Earth, and every thing therein contained, and finifhed this work in fix days, and that he fan&ified the Seventh Day, becaufe he then retted* that is, he ceafed to add any thing more to the World thus created by him. Thofe who are of a contrary Opinion tells us, that the Jewifh Rabbins will not allow this to relate to the very time •w'mn the World was created, or that it was a Command then given to Jidan^ bur chat it ycla'cd lathe tiw ttthw Afpfeswrets . i:, which was many years afterwards in the Wildernefs, and that he mentioned this only as an Example to excite the Jews to keep one day in Seven Holy, and to enforce his Commands to them for that purpofe. That it was not obferved by the Primitive Patriarchs, for Abraham himfelf, with whom the Covenant was made, did not keep any particular day to the Lord, if he had, it would certainly have been mentioned in the Scripture, which is very exact in the Hiftory of his Life. Neither did the Israelites keep any fuch day whilft they were in tALgypt, for there they had no manner of reft from their Labour, they were not io much as fufrered to offer any Sacri- fice which had been iooner finifhed than in the compafsof a day. They defigned to make their Efcape from thence, and the better to effe6t it they Petitioned Pharoah to permit, them to go three days Journey into the Wildernefs to Sacrifice to the Lord, but he rather luftered them to Sacrifice in tSEgypt, which Mo- / (8.) Abimilcctis reproving both Abraham and Jfaae forbear- ing falfe Witnels in denying their Wives, ihews that they were not ignorant of that Law. (9.) Jofeph not coveting hia Matter's Wife, {hews, that 'they held it unlawful to covet another Man's Wife or Good?. Having thus fhewed that the Patriarchs had the Know- ledge of the Commands of God, and that the Jfraelites did not obierve any day to the Lord whiltt in *s£jrypt: I fhall now (hew, that they did not obferve it for fome time after their departure from thence, for they murmured againtt Mofes for bringing them from thence (as they imagined) to be (tarved in the Wildernefs, but when God lent Quails and rained down Bread from Heaven, and on the fixth day gave them double the quantity they had gathered in any other day, this was a preparatory to a ttricl: obfervance of the Seventh Day, that they might then reft from looking after their daily Bread, and then Mojes acquainted them that on the morrow fhould be the reft of the Holy Sabbath unto the Lord, and then alfo God deicended on Mount Sinai, and proclaimed the Decalogue to the People in Thunder and Lightning. About four Years after this Law was given, a Man was taken gathering Stick in the Wildernefs, and he was ordered by Mofes to be ftoned to death ; this was to ftrike a terror amongtt the Jews, the better to enforce their Obedience to the Law for the future. Afterwards when they came into the Land of Canaan, we do not read o[ any Duties which were to be performed on the Sabbath Day by thePrieft in conjunction with the People, for that which was required of the Prieft in order to the SancYifi cation cf that Day, was to iacrifice two fupernume- rary Lambs of a year old without Blemifti, more then the two which were the daily Sacrifice, as alio to prepare and place twelve Peck-Loaves before the Lord, that is, one for every Tribe, and this was called the Shcw-bread. Now, tho' the People retted, the Prieft had work enough on this Day, but he was excufable, becaufc it was directed by God. That which was required by the People was only to reft from Labour, in imitation of God's reft after He had finifhed the Creation •, but the Scripture doth not mention how that timeofrett was to be Employed, nor in what Contemplations or other ads of Devotion, for that was left to the Authority of the Church, JTh Tis true, the Priefts Offered Sacrifice for the People, but they might do it without their being prefent. And when Mofes delivered the Law into their Hands, he did not appoint them to Read it to the People every feventh Day, but every feventli Year. Ezra, who was a Prieft, and Learned in the Law of Mofes , was the firft who Read the Law on the Sabbath, and this was about 90 Years after the Return of the Jfraelitcs from the Cap- tivity of Babylon. Thus the keeping a Sabbath is no part of the Law of Na- ture, becaufe it was Inftituted by Mofes ; and 'tis not like thole Precepts which are naturally Ingrafted in the minds of Men, As thonfhah not Kill, Steal, or commit Adultery, for all thefe had been Evil without a Prohibition. It cannot be denied, but that 'tis agreeable to the Law of Nature to obferve fome peculiar time for the Service of God, this was done by the Hebrews before the Law, when all days were alike ; but 'tis almoft Impoflible for us to know whether on the firft or feventh Day, after fuch a Circulation of Weeks as have been fince the Creation of the World, or even fince the Birth of our Saviour, for the Jews never divided their time by Weeks till they came out of *s£jryf>t, nor the Romans , till Chriftianity got footing in the Empire, which was about 520 Years after our Saviour was Born, fo that the keeping the feventh Day Holy rather than any other Day, mud be attri- buted to a Pofitivc Law, and not to any Divine Authority. (2.) The fourth Commandment is Moral as to the Duty, but Ceremonial as to one day in Seven, and this was the opi- nion of Aquinas and the Schoolmen, it differs from all the reft of the Commandments which are Moral, which is thus proved ; God never commanded any thing to be done contrary to the Law of Nature, unlefs it was to try the Faith of a Perf on, as in the Cafe of Abraham; but the Sabbath hath been broken by the exprefs Command of God himfelf, as in tbeCaie of the Children oUfrael, whom he Commanded to Befiege Jerico on that -Day ; then the Priefis blew their Trumpets, the People Shouted, and the City wasDeftroyed, And not only upon this extraordinary occafion, but this Day was alfo broken by the publick and open Pradtifc both of the Prieft and People, in the common and ordinary courle of Nature, as in the Caie of CircumciGon, which, tho' a Sa- crament, was a Bodily Labour, for if a Child was Born on the feventh Day, he mull be Circumcifed on that Day, and then a Seat muft be prepared to hold two Perfons, which was 352 lU#)'tf-£)flj>, to be Covered with rich Carpets, in one Seat the Sureties were placed with the Child, and in die other the Circumcifor, then came a Perfon with a great Torch, about which were twelve. Lighted Wax- Candles, then two Boys with Cups of Red Wine to wafh the Circumcifors Mouth after he had done his Wrork, another carried his Knife, another a Difh of Sand, in which the Foreskin was to be can1, another a Difh of Oyl, in which were Clouts or' Lumen to be applied to the Wound, andfome other Perfon with Spices and ftrong Wines to refrelTi the Peo- ple, this was only preparatory to the A 61 it felf, which was very troublefome, and all this was Bodily Labour. When our Saviour was Born, the Cuftom was to Read a Sedtion of the Law every Sabbath-day, out of the five Books of Afofes, which was divided into 54 Parts, and the Prieft Ex- pounded upon it, and this way of keeping that Day was coun- tenanced by his Pretence • but when the Jewifh Nation was Deftroyed, this Cuftom was no longer Obferved. But neither cur Saviour or his Difciples did ordain another Sabbath, for it was the Church which did it to commemorate his Relurreclion, by fettjng a- part that day on which he Arofe, to Holy and Religious Purpofes, for when Cbrift faid pray, that your flight be not in Winter , neither on the Sabbath, &c. it was fpoken to 'the Jews, and not to his A pottles, for they were all gone from Jerufakm before the Wars of Titus and Vefpafian. That the Dcfcending of the Holy Ghoft upon the Apoftles on the Feasl of Pentecost, which happened that Year on a Sun- day, was no manner of Evidence that the day was to be dig- nified as a Sabbath, becaufe it was a removable Feaft, and it was a cafual thing that it happened on that day. The Preaching of St. Peter on that day, and Baptizing three thouiand Converted Jews, feems to be a better Proof that the Apoftlesthcn began to fet a-pait that day for Religious pur- pofes, if they had not done almoft the fame thing every day, for fmce the Lord added d/iily to the Church Juch as jhould be Sav- ed, certainly the means of their Salvation was Adminiftred every day. But I fhall no longer infifl on theft Difputes, whether the Sabbath was obferved by the Jews as a Moral Precept, and fo became Eternally binding, or whether it was Abrogated with; the whole Ceremonial Law at the Destruction of the Temple, whether it was Inftituted by our Saviour, and Commanded by his Apoftles.. or enjoy ned by the Authority of the Church, by the Voluntary Confecration of it to Pious Ufes, and the Observance of it enforced by the Laws of Princes, by theCa- fions of Councils and Decretals of Popes and other Prelates. 1 l fhall only fay, that 'tis the general Opoinion of the Re- formed Divines, that the Lord's- day was founded on the An- thority of the Chinch, That as to us here in England, all Sundays, and the great Feftivals, were obferved by our Anceftors the Brums, and we find that in the time of the Saxons y King Ina made a Law, that if a Servant Worked on the LordVday by the the Com- mand of his Matter, it was a fumcient caufe to Discharge him from his Service, and to make him Free, but if he Worked without fuch Order, the Servant was to be Whipped ; fo if a Freeman Worked on that day he was to be made a Bond- man, or to pay fixty Shillings. King Alfred after him, made a Law that Freemen fhould enjoy their Liberties on the Lords-day, and certain Holidays. When the Bancs had fubdued the Saxons, Canutus made a Law at Winchefter, that there fhould be no Market nor Hunt- ing, nor any meeting of the People for Civil Affairs on that Day, unlefs in cafes of neceffity. Yet in the time of \hz Normans, Markets were generally held on the LordVday, and Ecclefiaftical Synods and Coun- cils for State Affairs, and fo they are (till. But when Stephen Langton was made Archbidiop, which was in the Minority of King John, it was decreed in a Coun- cil held at Oxford, Anno 1222. that Sunday fhould be obfer- ved with all Reverence, and that no Servile Work fhould be done on that day, only Tillage and Sailing were allowed, if occafion required. About 130 Years afterwards, in a Synod held by Archbi- fhop Iflip, it was decreed there fhould be a general reftraint from all manner of work on Sundays. But notwithstanding thefe Reftridtiqns and. Decrees, Fairs and Markets were (till kept on that day, and ufually in the Churchyards, where they are kept in many place at this time^ and particularly that great Fair held every year at Briflol oa St. James's-day, is kept in St. James"?, Church- yard The firft reltraint of keeping Markets and Fairs on Sunday was, Anno 28 Edw.%. cap. 14. in which year a Statute was made, enacting, That Wools might be expofed to Sale at the Staple every day in the Week, except Sunday. The like reftraint was made by A6t of Parliament, Anno 27 Hen. 6. cap. 5. upon pain to forfeit the Wares expofed t<* Sale in fuch Fairs, &cd to the Lord of the Franchife. But tho* Markets and Fairs might not be kept on Sunday^ yet People might expofe Goods to Sale in their Shops on thofe days, and therefore Ami 4 Edw. 4. cap. 7. a Statute was made A a W 554 LOJtfa-Dfl?. to prohibite Shoemakers in London, or within three Miles round that place, to Sell any Boots or Shoes on the Sabbath- day, which implies that ttiey might be Sold elfewhere. Anno 5 cr 6 Edrv. 6. cap. 3. A Law was made that all Sundays in the Year fhould be kept Holy; 'tis true, this Law was Repealed Anno 1 Ad. and ftood Repealed all Queen Elk,. Reign, but by an A& made Anno 1 Jac. cap. 2$. that Statute was Repealed, but the A£t ^& 6 Edvp. 6. was not Revived by exprefs woftls, for that reafon it was Queftioned whether it was in force; but the Law feems to be that where a O) Statute which Repeals another is Repealed it felf, it makes the firit Act which was Repealed (till in force. By the Statute 1 Eliz,. cap. 2. no Dittinction is made be- tween Sundays and Holidays, for all Perfons are enjoyned by that A6t to reibrt to their Parifti Churches, or upon let there- of to fome other Church on thofe days. Anno 1 Car.i.capn. All concourfe of People out of their own Parishes, for any Paftime, was prohihited on this day ; asal- fo Bear-baiting?, Bull-baitings, Enterludes, common Plays, and all other unlawful Paltimes. The Profecution was to be in one Month after the Offence, the Forfeiture was to be 3 s. & \d. to the ufeof the Poor where the Offence was committed, and the Conviction was to be by view of the Juftice of Peace, or chief Officer in a Corporation, or by the confeffion of the Party, or by the Oath of one Wit- nefs before fuch Juftice, &c. or Officer, and it was to be re- covered by Difiref?, &c. by virtue of a Warrant from them* refpeclivcly directed to the Churchwardens or Conftable of the Parifh, and if no Dilxrefs could be taken, then the Offender wasbe put into the Stocks three Hours, By the Statute 3 Car. 1. cap. 1. Carriers and Drovers are prohibited Travelling on the Lord V Day, under Penalty of 20 s. and Butchers Killinp, or Selling Meat forfeit 6 s. & $d. the Conviction, the Levying, the Forfeiture, and the Employ- ment thereof, are the fame as in the Statute 1 Car. 1. except in the Proof, and that mutt be by two Witneffes, and the for- feiture is to be recovered in the Seffions, &c. and the ]u(hces may allow the Profecutor part thereof, but not above the third Part, and the Profecution muft be within fix Months after the Ojffence. Anno 29 Car. 2. cap. 7. It was enacted, that all Laws in force concerning theObfervation or the Lord's-day fhould be put in Execution, and that all Perfons fhould on every Lord's- (a) ariift. ftti day day exercife themfelves both publickly and privately in Du- ties of Piety, and that no Perion ihould do any Worldly la- bour or bufinefs on that day, (Works of Charity and Necefli- ty only excepted ;) and all of the Age of fourteen Years and upwards offending in the premises were to forfeit 5 /. and no Perfon is publickly to Cry or expofe any Wares to Sale on that day, on pain to forfeit them. Butchers, Drovers, Higlers, Horfe-Courfers,Waggoners and their Servants, are prohibited to Travel on the Lord's-day, on pain to forfeit 20/. Wherry-men and Boatmen are likewife prohibited, unleis allowed by a juftice of Peace or Head-Of- ficer, the forfeiture is 5 /. The Conviction is more eafie than by the former Statute ; for 'tis to be before a Juftice of Peace or Head -Officer of a Corporation, if the Offence is committed there, either upon his own View, by theconfeflion of the Party, or Oath of one Wit- nefs, and the Penalty is to be recovered by a Warrant from the Juftice, directed to the Churchwardens or Conftable, to Diftrein the Offenders Goods, and if no Diftrefs can be had, then he is to be put in the Stocks for two Hours. The Penalties when recovered are to be for the life of the Poor where the Offence was committed, except fo much there- of as the Juftice of Peace fhali think fit for the Reward of the Informer, which is not to exeed a third Part. But Cooks and Inn-keepers may Drefs Meat on Sundays, and People may cry Milk before Nine of the Clock in the Morning. The Profecution upon this Act muft be within ten Days after the Offence. And tho' by the Statute 1 Will, a Toleration is given to fome Perfons to abfent themfelves from their Parifh Churches, yet none of the Ads beforementioned for the Obfervation of the Lords-day were Abrogated or Repealed, but are ftill in force,1 and Perfons may be puniflhed for not coming to their Parifh Churches on that day, unlefs they go to fome Congregation To- lerated by that Act. From all which we may fee, that it hath been under the con- fideration of fcveral Parliaments to fupprefs all manner -of Prophanefs on the Lords-day, which doth generally arife either from Covetoufnefs or Licentioufnefs. And therefore, felling Goods, keeping Fairs or Markets, and travelling about Worldly occafions are prohibited on that day ; all which things are ufually done out of a Covetous delirc oi feme Profit or Gain, A a 2 And 35<> \90axttan2* And meeting together in other Parifhes for Sports, Bear- baiting, Bull- baiting, Stage Plays, and other unlawful Games, were prohibited, becaufefuch Paitimes tend to all manner of Irreligious Licentioufnefs to debauch the People in their Mo- rals, and to introduce a contempt to Religious Performances, and to the Service of God. But by the Common Law, as welt as by the Statutes, there is a due obiervance to be given to the Sabbath ; for dies domi- riicus non eFi juridicus, Mr. Fit Herbert (a) tells us, that no Plea fhall be holden in Qnindena Pafiha, becaufe 'tis always on a Sunday, and 'tis Error if a Writ {b) fhould bear Tefte on that day. By thofe Statutes (c) likewife, if any Perfon travelling on a Sunday is Robbed, the Hundred fhall not be charged with the Robbery, neither (hall any Procefsbe ferved except in cafes of Treafon, Felony or breach of the Peace, but fuch fervice fhall be void, and the Perfon ferving the fame fhall be liable to Damages as if he had done it without any Warrant. Marriage. M A R R I A G E is one of the Rights of Humane Nature, it was InRituted in a State of Innocence, and there- fore I cannot fee any reafon why it fhould be forbidden to the Clergy -7 for if fuch a State of Life would have obftrucled them in any Divine Performances, 'tis reafoneble to imagine that it would have been prohibited by the MofaicalLaw, which was fo far from any fuch prohibition to the Jewirfi Prieft- , hood, that even the High-Prie(t himfelf was to be a Married Man, for otherwife the Prieflhood could not lawfully defcend to his IiTue, which was pofitively ordained by God himfelf. In the Gofpel Difpenfation we find that Chriftdid not pre- fer any of his Aportles before St. Peter, who was a Married Man, neither did he charge any Man to forfake his Wife. St. Paul tells us, it was an honourable State in all, and that every Man (hould have his own Wife, which are general word?, and not ex- clufive of the Clergy ; and Celibacy is no where propefed as a necefTary Qualification for a Man in Holy Orders, but on the contrary, that a Bifhop fboxldbcthe Husband of one Wife, fo that the Clergy are not forbideen to Marry either by the jewifh or Gofpei Difpenfation. fo ;-. {:) Dv«r x68. (0 29 Car, zl Ti3 Tis true, they are prohibited by the Laws of the Church, but 'tis by afTuming a Power which the Church never had, for as it fc^th been obferved, it was never forbidden by our Saviour who planted the Chriftian Church, and as a learn* ed * Prelate tells us, he belt knew what humanej Na- ture was able to bear, and that if Celibacy had been necef- iary, he would have required it of thole to whom he gave Ccmmiflion to Preach his Gofpel, and certainly hisDifaples and the Apoftles required a greater.freedom from the cares of a married Life than what is necelTary for thofe who .fucceed them after the Church was in a fettled Condition. I grant that in the firft Ages of Chrittianity the Nicbolaitans, the Gnoflich, Mont anus, and other Heretiques condemned the marriage of Prietts, but the Fathers who lived in that Age tell us, this was a device of the Devil to advance his Kingdom by Fornication and Uncleannefs, they constantly afTerred, that it was lawful for all Men to Marry without diftinguirhing be- tween the Laity and the Clergy. But when the Papal Power encreafed, and the Clergy were generally engaged to fupport it againft the Civil State, then were Cannons made againft Marriage, not that it was un- lawful in it felf, but it was to feparate them from the Civil Society, knowing they would have lefs regard for the State when they gave no lawful Pledges to fupport it. But tho5 fuch Canons were made againft the Marriage of Prielts, yet they were never received here, but only in Italy and France, for the Britifh Clergy had Wives, but they went vailed, and when the Saxons ruled here moft of the Clergy were Married ; but when St. Dunfian had got King Edgar on Lis fide to favour the Monks, then he preflVd the married Cler^ gy to leave their Wives, which they refuting were deprived, and the Monks put in their Benefices, who invented this Sto- iy,x/i*,. that thofe married Perfons who difobeyed Si.Danfian% Order, were with their Wives and Children transformed in- to Eeles, from whence the Me of Ely took its name, and this I take to be as credible a Metamorpbofis as any in Ovid, there was another Monkifh Story of this Nature about the fame time, wt. that at a Synod held at Wincbefier under that St. Duuftan a wooden Crofs gave its Suffrage again!* married Priefts, upon which occafion we have thefe Verfe9. Humano more crux prafens edidit ore, Cslitta efflata qua profpicis hie fubarata, Abfit ut hoc fiat & cetera commemorata. TB.H.K, A a 3 Bit 358 s^atrfage* But 'tis certain that the Priefts did keep their Wives long after the Conqueft, for at a Synod held at Wejfminfter about the third Year of H. i. where Archbifhop Anfelme prefided, a Canon was made prohibiting all Priefts to Marry, or to fceep a Wife tho' married. Henry Archdeacon of Huntingdon, made this Obfcrvation upon that Canon, viz,, that it might fcem very pure to fome, but as dangerous to others, for thofe Priefts who were not able to contain, would by this means fall into horrible un- cleannefs to the great difgrace of the Chriftian Religion, . Ralph Bi/bop of Roche ft er who fticceeded Anfelme, did not concern himielF in this matter, but Cardinal Crema, who about that time was lent hither by Pope Honorius asjiis Legate de Latere, held a Synod at London, in which he made very fevere and invective Speeches againft the married Clergy, telling them that it was a horrid fin for a Priett to riie from a Woman and immedately to make the Body of Chrift, and the next day after he made this Speech, he laid Mafs himielf, and at Night was taken in Bed with a Whore. This Story is delivered to us by the Writers of that Age, and we have no reafon to queftion the truth of it, for Henry et Huntington who lived at that time, and who was a Prieft himielf and the Son of a Prieft, gives a large account of this matter, and concludes that it was too notorious to be de- nied. Two Years afterwards another Synod was called at Lon- don, where fome Canons were made to enforce thofe con- cerning the Celibacy of the Clergy, and two Years after that, another was held at Weltminfter, where it was decreed that Priefts fhould leave their Wives before the next St. An- drews Day, or be deprived. But the Clergy being unwilling to comply to this Decree, the Execution thereof was left to the * King, who took Mo- ney of fever.il Priefts by way of Commutation, and fo per- mitted them to live with their Wives, and by this means that Conftitution was in a manner fct afiJc. • By thefe Canons there was a ftricter Obligation upon the Regulars then upon the Secular Clergy, becaufe they had ■rowed Chaftitv, and therefore my Lord Coke (a) tells us, that if a Deacon or" Secular Prieft bad taken Wife, the Marriage, was not void, but voidable canjaprofeffionis, and if they had Children, and either Husband or Wife had died before a Di- vorce vorce fuch Children fhould Inherit; but if a Monk or Nun had Married it was void, becaufe they had vowed Gbaility. But the incontinency of the Priefts was fo notorious, that about 46 years after the laft Canon was made concerning the Celibacy of the Clergy, which wasAmo 2<> H. 2. Richard Archbifhop of Canterbury in a Synod hell at Wefminfier prohi- bited Men in Orders from keeping Concubines as well as from Marriage, and the like was done Anno 7 R. 1. by Hubert Archbijbop of Canterbury, and then Chief Juftice of England, who prefided in a Synod for that purpofe held at Turk. Anno 9 H. 3. Stephen Langton revived thole Decrees, and added a punifhment to the Concubines of beneficed Priefts, and of Men in Orders, not when they were living, but after they were dead, viz*. That they flnould not have Chriftian Burial unlefs they had repented, and that the Priefts lTtould not be admitted to the Sacraments fo long as they kept fuch Women. But notwithstanding thefe Constitutions, feveral of the married Clergy ftill kept their Benefices till Cardinal Otho in the beginning of the fame Kings Reign, viz.. H. 3. made a pofitive Canon, that fuch Priefts fhould be ipfo jure privati, that their Wives and Children (hould have no benefit of their Husbands or Fathers Eftates, which were gotten during the time of fuch Marriage, but that the fame uSould be vefted in the Church where they refided. and that their Children fhould be difabled to take Orders without a Dilpenfation. And thus it continued for almoft three hundred Years, vizi till the Reign of H. 8. in all which time fuch fcandalous Crimes were committed, that Difpenfations to keep Concu- bines were very common, if the Priefls had Money enough to purchafe them; but leaft they fhould give a bad Example to the People, they kept thefe Concubines not in their Houfes but privately, for there was a Canon made againft thofe, qui m domibus fuis Concubinas publice detinent eat a fe removeant infra menfem, and this made them take Lodgings for them, which occafioned the making another Canon, that they fhould not have publick accefs to them there cum fiandalo. Sir Simon Degg obferves that it was wifely done by the French and German Laiety to lollicite the Council of Trent , that Priefts might be tolerated to Marry, as being unwilling to truft their Wives and Daughters at Confeflion with Men who might have Concubines but no Wives, and that Pope Pius 2d. affirmed there were many good reafons againft the Marriage of Priefts, but none which could ftand in competition with fboft reafons which were for it. A a 4 36° $&mim* But I do not find that the Priefts in thofe days were re- formed by thofe Canons, therefore Anno (b) i H. 7. it was thought requifite to add a Temporal Law to thofe Spiritual Decrees in order to puni(h their incontinency, and it was, that the Ordinary might commit Juch Priefts to Prifon during Pleafare, and this La ill in force. About fifty five Years a fterwards 0) an A6t was made to declare it Felony for a Prieft to Marry, or if married, carnal- ly to know his Wife, or fo much as publickly to Convert) with her, or for any Perfon to Preach or affirm that it was lawful for a Prieft ro Marry. But the punifhn.ent by Death was thought too fevere, there- fore in the very next Year (d) it was repealed, but it was then Enacted, That if a Prieft was guilty of Incontinency he fhould forfeit all his Goods, &c. and all his Spiritual pro- motions except one, and for the fecond Offence (being con* victed) he fhould forfeit all his Goods, and the Profits of his Lands, Benefices and Promotions, and for the third Offence fhall forfeit as before, and be committed during Life. But thefe Severities were not effectual to prevent this Vice, therefore in the fame Year (f) another Act was made, by which all Marriages were declared to be Lawful, which were not prohibited by God's Law. This was a general Law in which the Clergy as well as the Laity were comprehended, but the Statute which more immedateiy concerns them was made Anno 2 & 3 Ed.6. ( f) the Preamble fets forth, that it would be better for Priefts "to live chaft and feparate from the company of Women, that they might with more fervency attend the Miniftry of the Gofpel, and that it was to be hoped they would of them- felves vow perpetual Chaftity, but that when it was enforced by fevere Laws, luch inconveniences did follow which were not fit to be mentioned ; therefore it was Enacted, That all Laws, Canons, and Gonftitutions prohibiting the Clergy to Marry {who by the Laws of God might Marry) and all Pains and Forfei- tures therein contained fhould be void. This was taken to be only as a toleration for Priefts to Marry, as Ufttry and other unlawful things were allowed by the State, in order to prevent greater inconveniencies, and that notwithstanding that A6t it was (till unlawful for the Clergy to Marry, and the ilTue of inch Marriages were ac- counted Baftards, therefore Anno <^&6Ed. 6. (g) another Act was made, by which it was declared, that the Marriage — _— _ _ - — r (0 i H. 7- cap. 4. (c) 31 H. 8. can. t4. (J} 32 H. 8. cap. 10, (e) 32 H. «s *»*:l*i CQ 8-3C3EcU.ap.2l., (i) 5&6Ed.6.cap la. or 39arrfage« 361 of Priefts {hould be held Lawful and their Children Legiti- mate and inheritable, and that they {hould be Tenants by the curtefie, and their Wives endowed. But Anno i Maris, thoik Statutes were repealed, and fo con- tinued all Queen Elizabeth's Reign, but in the firft year of King James they were revived, and fo they continue to this day, fo that all Statutes, Canons and Decrees which pro- hibite the Marriage of Priefts are now void ,• but fome are of Opinion, that the Laws which inflict punifhinents for theii incontinency are {till in force. And thus much for Marriage as it relates to the Clergv, I fhall now mention fomething concerning it as 'tis a Civil Contract between the Parties, which all Chriftian Nations have agreed fhould be published in a Solem manner, and both the Jews and the Heathens themfelves had fome particular Solemnities upon this occaGon, which may not be improper here to mention, becaufe in fome Circum fiances they agree with the form ufed amongft us. Amongft the Jews the Man and Woman were led to the Houfe of Marriage by their fpecial Friends, who were called the Children of the Bride-Chamber, and there were to be prefent ten Men at leaft, and the Bill of Dowry being ratifi- ed by a publick Notary, the Man fpoak thus to the Woman, viz. Be thou a Wife to me according to the Law of Mofes, and I mil worfhip and honour thee according to the word of God ; 1 fiafl. feed and govern thee according to the cuflom of thofe who worfhip* honour and govern their Wives faithfully , I give thee for Dowry of thy Virginity fifty Sheckls, which in our Money is 3 /. 2 s. 6d* This feems to be comprehended in our Form, With my Body 1 thee worfhip, and with all my worldly Goods 1 thee endow. Amongft the Romans there were three forts of Marriage, viz. Confarratione^ Coemptione, Ufu. The firft of thele was performed with great Solemnities by the High Prieft himfelf offering Sacrifices to their Gods, and particularly of a Barley Cake, part whereof was afterwards eaten by the married Couple, and 'tis probable that we de- rived from them the Cuiom of making a Bride-Cake at our Weddings. : Coemption was the folemn binding themfelves to each other by giving and taking a piece of Money : We have fome- thing like this at our Marriages, viz. the Man ufually giving; the Woman fome Money at that time, which is called the Endowment Money , this is not eflcntial to a Marriage,, for 'tis often omitted, becaufe the Man muft fay with all my Goods I thct tndow : In the firft Ages of Chriftianity this was dons 362, ^artiage; done in writing, and fuch writings were called tabula* dotahsf which may be another reafon why the word Endow is ftill continued in our Marriages. The Romans likevvife ufed the Ceremony of a Ring, and this appears by the Satyri/l in thefe words, Digitis pignus fortajfe dedifti. (h) We might hkewiie derive this Cuftom from them, and we put it on the fourth Finger becaufe there is a Nerve which from thence is joined to the Heart, 'tis a Ceremony of great Antiquity, ■ and 'tis a token that the married couple fhould continue in that State without End, that is, as long as they both live. And as thefe Ceremonies are required at the time of Mar- riage, fo fome are necellary before it, and that is U5an*U by asking the parties in the Church, which is expreQy provided by the Statute 2 & 3 EL 6. viz* that no Man fhall have liberty to Marry without fuch asking, which we call the publication of the Bans, &c. and this is the very iignification of the word it felf, 'tis true the old GlofTogra- phers tell us that it fjgnifies a Proclamation, but as applied to Marriage it rather imports a Publication, and this muft be done three times, either on Sundays or Holidays in the Church where the Parties live, that any Perfon may have convenient notice to object againlt the intended Marriage. And if the objection is material then the Minifter ought not to proceed (i), if he doth, the Party may complain to the Ordinary who will fend an Inhibition to him. There are feveral objections which are material, viz,. Pre- contract before good Witnefles, Consanguinity or Affinity, Pa- rents not confenting, or Guardians if the Parties are under Age, for in fuch cafe they are not fui juris and therefore by another Canon (k) it was enjoined that Infants fhould not Marry without their Parents confent, and if a Minifter fhould Marry them without fuch confent, teftified by themfelyes in Perfon, or by fufficient Witnefles, that he fhouid be ipfo fatlo fufpended for three Years, tho' the Bans were publifhed. (/) If the Marriage proceed it muft be done in facie Eccle/i* (m\ but this is difufed, it ought likewife to be in one of the Churches where one of the Parties lives, and in time of Divine Service, and this is required by the Canon, tho' the Perfon 'ath a Licenfe. - But by the ancient Canons it was to be celebrated in the rch of that Parifh where the Woman was an Inhabitant^ 1 l r)C«n. 103 '<) Can. ioc, (/) Can. £3, (m) Can. 104. ■' and and therefore at this time there is a Fee due to die Miniiter of that Church, tho' the Patties are Married el ie where, but this is only by the Ecclehaftical and not by the Common Law (n) without a Cuftom to iupport it. This asking is likewiie required by the Rubrick in the Com- mon Prayer, which is confirmed by A6t of Parliament. But by the Ecclefiaftical Canons (0) now in Force, 'tis or- dained, that fuch who have Epifcopal Jurifdiction, or the Commiffary of the Faculties, Vicars General of HUenfeau Prelates, Guardians of the Spiritualties fede va- cante, or Ordinaries exercifing Epifcopal Juris- diction may grant Licenfes to Marry without Bans. However 'tis exprefly required by the Canon, that fuch Licenfes be granted only to thofc who are of good Eftate and Quality, and fecurity muft be taken that there is not any impediment of Precontract, Confanguinity, Affinity, or any- other juft Caufe to hinder the Marriage, nor that there is any Suit depending in any Ecclefiaftical Court concerning any Contrad or Marriage on either fide, and that the Parties have the confent of Parents, &c. and likewife that the Marriage fhall be celebrated in the Par inV Church where one of the Parties dwelleth and in no other place, and that between the Hours of eight and twelve in the Morning. And it muft appear to the Judge (jO (who grants theLi- cenfe) upon the Oath of two credible Witneffes that the con- fent of Parents was obtained (9), and one of thofe Perfons muft likewife Swear that he believeth there is no impe- diment of Precontract, Kindred, &c. nor any Suit to hinder the Marriage, and this muft be done before the Liccnfe is granted, and that Perfons offending in the Premifes flhall be fufpended from the execution of their Office for fix Months, and all Licenfes to the contrary fhallbevoid, and the parties Marrying (hall be fubjeft to fuch Puniihments which fhall be appointed for clandestine Marriages. Tis true, thefe Canons were made in Convocation, and confirmed by Letters-Patents, and are become pan of the Law of the Land for the government of the Church, but yet they cannot alter or fuperiede the Statute-Law, which is ex- prefly againft marrying without publishing the Bans, that is, without asking in the Church. But the Power of difpenfmg in fuch cafes is likewife efta- blifhed by a Statute-Law, and fuch a Power was granted to the Bifhops Anno 25 H. 6. cap. 21 . vix, that they might dif- C») sLu:. 1062, (0) Can. fo. (/)'Gw roj. (?) Can.xoj. penfe 364 serfage. penfe as they had ufually done by vertue of the Common Law or the cuftoms of the Realm, and fuch Licenfes have been granted here ever fince the Reign of Ed. 3. We rarely meet with any Profecutions againft Minifters Marrying, or againft Perfons being Married without Licenfe or Bans (r)> fome there are, as for inftance, an Incumbent both of a Donative and a Prefentative Church married two Perfons in the Donative without Licenfe or Bans, and upon a Proiecution againft him in the Spiritual Court, a Prohibiti- on was denied, becaufe he ought to have Married then in the Prefentative Church. So Anno «$ Will, (f) there was a Marriage in a Conventicle without Licenfe or Bans, the Man was profecuted in the Spi- ritual Court for Incontinency and Fornication, he fuggerted the Statute 1 Will. cap. 5. which exempts Perfons from Profe- cutions in that Court for Non- conformity to the Church of England, fo as they take the Oaths of Allegiance and Supre- macy, and fubferibe the Declaration, e£v. that he had qualified himfelf according to the Statute, and that he was Married be- fore WitnefTes in the Face of their Congregation, and there- fore ought not to be profecuted for not conforming to the Church of England in their Marriages, there was a Prohibi- tion granted, and a Rule made that the Party (hould Declare upon it, fo that upon a Demurrer the Law might be determi- ned, but it was never argued. But there being fome Churches and Chapels exempted from the vifitation of the Ordinary, the Minifters of fuch Churches did ufually Marry without either Licenfe or Bans, and thefe, were called (not improperly) lawlefs Churches, for by this means thofe good Laws which had been made to prevent dandeftine Marriages were become ineffectual. Therefore Anno 7 & 8 Will. cap. 35. a Statute was made prohibiting all Parfons to Marry People, or fuffer them to be Married in their Churches or Chapels exempt or not exempt, or in any other place whatfoever without publication of the Bans, &c. or without a Licenfe, the Penalty is 100/. for each Offence to he recovered by A&ion of Debt, Bill, Pleint or Information, one Moiety to the Queen the other to the Infor- mer, and the Man thus Married forfeits 10 /. to any Perfon who will Inform, and this is to be recovered in the fame man- ner with cofts of Suit, and every Sexton knowingly afliftins at fuch Marriage forfeits 5/. to be recovered with Cofts as aforefaid. Sid 452, If) t Ley. s76. i §0 i So that how thefe lawlefs Churches, fo called, becaufe they were not fubjeel to the Canons, and which were exempted from Epifcopal Vifitation by the Pope's Bulls, in favour of fome Monaftry of regular Monks or Fryars, and which con- tinued till that Statute was made * are now made fubjeft to that Law, which did not altogether prevent clandeftine Mar- riages, for the lower Houfe of Convocation feveral Years af- terwards complained to the Bifhopeofthe Scandal occafioned by fuch Marriages. But ever fince Licenfes were granted, the Cognizance of the Sufficiency of them, both in point of Form and all other Circumftanccs, belonged to the Ecclefiaftical Court, and the Party had no remedy but by Appeal if they Judged Wrong $ but if the Queftion was, whether the Bifhop had Power to grant a Licenfe, and they adjudged againft fuch a Power, a (a) Prohibition did lie. And as they had Cognizance of Licenfe?, h^2?(L e fotheyhadajurifdi&ionastothelawfulneis toe TOtftjop* 0f Marr jage# For after the Empire became Chrittian, Princes had fo much honour for the Bifhops, by whofe means they were Converted, that they gave them Juris- diction in particular Caufes, of which Marriage was one, be- caufe it was always celebrated in facie Ecclefi) Common Law. In Dower, the Iflue was, that the U) Woman was not law- fully Married, and the Bifhop certified that the Man was cir- citer dtatem 12 Annorum, and that the Woman was Sixten, and that they contradted Marriage, which they procured to be lawfully iolemnized in the Church. This was held an infumcient Certificate, becaufe the Bi- fhop did not certifie the lawfulnefs of the Marriage, he was fined 20 /. and another Writ was directed to him to make a better Return, and thereupon he certified the Age of the Man to be eleven Years, ten Months, and twenty Days, and that the Marriage was lawfully folemnized between them in the Church, &c. Et fie in legitimo Matrimonio CopuLti fuerant, and * March, 1700. {a) Jones SJ7- (*) » Cro, 102, («) Dytr ?oj. thi* 366 #atriase* this return was held infufncient by feveral Civilians, both in point of Form and in Law, becaufe the words & ft: inlcgiti- mo matrimonio Copulati were only an inference collected from the PremiiTes, and not his direct anfwer to the Writ as it ought to be, and as to the Law it was held, that the Bifhop ought not to certifie that the Marriage was lawful, becaufe the Man was under twelve Years of Age, for before that time he cannot by Law confent to Marry. But feven Years afterwards the Bifhop certified the matter again, almoft in the fame Form, only he returned the Inqui- sition, and that it plainly appeared by the proofs that they were legitim$ matrimonio Copulati, and as to the point of the Law moft of the fame Civilians changed their opinions that the Marriage was lawful, but this muft be, quoad Dotem, for by the Law 'tis only a Marriage de fatto, and in iiich cafe the Wife fhall be endowed. Two of the Judges excepted againft the Form, vU. That the Bifhop ought to have certified his own Opinion of the Mar- riage, and not what appeared to him upon the Inquifition to be lawful. But where in Dower upon the like IiTue,the(/) Bifhop certi- fied that the Parties were in vero matrimonio Copulati fed dander kino, this was held a good Return, for if it was a true Mar- riage it was lawful. Tis certain, that Marriage hath been Citue t\\ tnbtcb encouraged in all civilized Governments, Carriage tQ p?o= £>llt not at an times, for with us tnere are fcMtt*- fome particular Seafons in the Year where- in it ought not to be celebrated, as in Lent, and on faftirig Days, becaufe the mirth and rejoycing which ufually accom- pany Marriages are not fuitable to the Humiliation and Sor- row which we ought to have at that time for our Sins, there- fore our Ancestors thought it convenient to reftrain the com- mon Liberties of Marriage during thofe Seafons. But I know not upon what Authority the Almanchmakers tells us, that Marriages are out from Advent Sunday, till the day after Epiphany Sunday ; and from Septuagefima or the third Sunday before Lent* to Low Sunday, which is the firft Sunday after Eajhr from Rogation, which is a Fortnight before Whit- jontide to Trinity Sunday. For the time of Advent was never obferved in our Church as a Fait, and both the Eafler and Whitjbn weeks are ufually times of Mirth and Rejoycing. . RoL Abr, ;9ra n.„ $)9otui0 DcctmanWi 367 Tis true, the Banns are feldom or never Publifhed in Lent, yet People Marry at that time with Licenfcs, and probably we are told that Marriages go out at the times abovementio- ned, that thofe who intend to come in may purchafe Difpcn- fations for that purpofe. Modus Decitnandi. TP HIS is where Lands, or an yearly Penfion, or fome Mo- •*• ney or other thing is given to the Parfon in lieu of his Tythes, in kind arifmg in fuch a Place ; and 'tis a certain Rule that a Modus is not good but where fomething is paid or done by a Layman for the benefit of the Parfon. But it hath been a Queftion whether 'tis good to pay part of the Tythes for all of the famefand, as to pay an Apple for the Tythes of all his Apples ; 'tis certainly wrong to pa y the tenth Sheafe in fatisfa&ion of Tythes of all Corn which fhall grow on fuch a number of Acres 0)> becaufe this puts it into the power of the PofTeflbr to pay what he thinks fit, that is, to make as much into Sheaves as he pleafeth. A Modus Becimandi doth arife either by Compofition, Cuhm or Prefcription. Compofitions were ufually entred in the Bifhops Regifter, es- pecially if made on a good and valuable confederation, and being constantly paid it became a Cuftom, and tho* there is no manner of proportion between the valuation of things at the time when fuch compofitions were firfi made and now, and by confequence no reafon to continue them, yet the pre- valency of a Cuftom is fo great, that it hath got the better of Reafon, and is allowed for Law at this day. Theie Compofitions are fuppofed to be the chief Foundation of every Modus, but the true caufe of them hath been the neg- ligence of the Clergy themfelves to fuffer an agreement of their PredecefTors to grow into a Cuftom. But Gncethe Statute 13 Eliz,. cap. 10. no fuch Compofition can be made, becaufe all Grants of Spiritual Perfons which are binding, are retrained to 21 Years or three Lives. Before the Statute, a Compofition to be Difcharged of all Tythes had been good, without any manner of recompence to the Parfon ; yet my Lord Hobert (f) tells us, that when it run out into a prefcription it died, that is, where a Layman pre- scribed in non Btcimando, which he cannot do ; and therefore by the policy of the Law fuch Prefcriptions, thoa they ftreng- 0) l £dd. 199, (f) Xfcb, *7-" then' 368 Tamils Decimatrttf. then all Metis titles, yet in this cafe they fail, becaufe JrfS.iii favour of the Church ; for tho'the Law allows that a Layman, may be difcharged by a Grant where it appears, yet it will not allow it in Prefcriptions where the original caufe of fuch Difcharge doth not appear. (2.) Cuftom is of larger extent than Prefcription, for it siuft be alledged in a Province, County, City or Hundred, and the manner of Pleading it is, viz,, that in fuch a County there is, and time out of Memory hath been, fuch a Cuftom ufed aud approved therein, that is to fay, &c* and fo fet forth the Cuftom. (3.) Prefcription is called by Sir Symon Beggy the younger Daughter of Cuftom, and is always confined to a certain Per- fon, Houfeor Land, and in Pleading it muft be alledged that fuch a Perfon, and all thofe whofe Eftate he hath in fuch Land have, time out of mind, paid fo mnch Yearly, &c. in full fa- tisfaction of all Tythes arifmg on thofe Lands. So that we feefomethiug muft be paid to the Parfon, for 'tis an unreafonable and void Prefcription where nothing is al- lowed to him; as for Inftance, if a (g) Man fhould prefcribe to be difcharged of Tythes for finding Straw to Thatch the Body of the Church, this is not a good Prefcription, beeaule there is no recompence to the Parfon. So where a Prefcription is to pay the tenth Part abfq. vifu & taftu of the nine Parts, by the Parfon (&), this is unreaso- nable, becaufe a Man ought not to divide for himfelf without the view of the Parfon or his Servant, and then to make choice of bis own Divifion. Tis likewife unreafonable for a Man to prefcribe to be Dif- charged of Tythes of dry Cattle, in confideration of paying Tythes to the Parfon (i) which are due to him for other things, as to pay fo much Money for every Cow and Calf, and fo much for every Milch Cow, in fatisfaclion of all Tythes for Cows (/£), and for the Herbage and Pajiure of the Land in fuch a Parifh is not good, becaufe Tythes for Cowes can be no manner of fatisfadtion or recompence for the Tythes of Herbage, &c. Tis likewife to be obferved, that the Perfon who pleads a Prefcription muft bring his Cafe within the compafs of it (/> as if a Man prefcribes to pay nothing for Barren Cattle, rear- ed for the Plow,, he muft alledge that the Cattle were reared for that purpofe. (f) 1 R©1. Abr. 647. March. 67. Cro. Eliz- 276. (b) Hob. 107. 1 Rol. Abr\ 6*9, (i) Cro. Eliz, 786. (0 2 Lut, X052; (0 X Rol. Rep; 62' The a^otwis DecfmanM. 3*? The payment muft alfo confift in fomcthing that is durable and certain, becaufe theTytheit felfis a certain Inheritance, O) and therefore 'tis unrcafonable it ihouli be exiinguiilied by any recompenceof leis value which is not durable. But the Civil audEcclefiatiical Laws differ from the Com- mon Law in cafes of Cuftom and Prefcription, for they al- low an ufage for forty Years, to be good Evidence to iupport a Cuftom; but by the Common Law it mult be beyond the memory of Man, and it muft be conftant and without any In- terruption. Yet a disturbance for 10 or 20 Years (hall. not deftroy fuch a Cuftcm, for 'tis only a fufpenfion of the Right for a time. By a long and peaceable PofTeffion all manner of property is transferred without any other Title or Delivery, becaufe 'tis for the Intcreft of mankind that all demands of Right fhould be limited to a certain time, therefore a Cuftom* beyond time of Memory obtains the force of a Law, for no Proof can be brought when it was otherwife. I have been the longer in defcribing Cuftoms and Prefcrip- tions, that I might (hew there may be a lawful Exemption to pay lefs than the true value of the Tythe, that is, to fhew the Parfon hath a Feather who ought to have the Goofe. I grant that thofe who are of opinion that Tythes are due by Divine Right oppofe all manner of Cuftoms to.leflen the tenth Part, for they fay no Cuftom can be good againft the pofjtive Law of God. But the Common Law diftinguifhes in this cafe, by allow* ing Tythes to be due J fire Divino Secundum quid, that is> in re- fpect to the maintenance of the Clergy, but not quoad decimam partem, and therefore it allows a Modus where there is enough befides to fupport the Parfon. And tho* we fometimes find in our Books, that the Ecclefi- aftical Courts will not allow a Modus, yet theCanoniftsand Civilians in conformity to our Law, do allow compoficions for Tythes made with Laymen, fo as they have the Bifhop's. confent ; fome Compofitions have been made without fuch confent, and held good for what is paft ; but the Revenues of the Church being diminifhed by this means, it was thought re- quifite that no Compofition fhould be made fine jttdicis Auclo- ritate, which implies that by his leave it might. A Adodus thus qualified was allowed by the Ecclefiaftical Law, and a Prefcription to maintain it is only to fupply the defect which may happen in the proof of the Compofition, which being made.time out of memory may be loft. Km) Hob 4. r. BG Theft 370 ^ODtWittafmantif* Thefe Prefcriptionsare likewifc allowed by the StatutcLaw, for it hath been enatfed, That no Perfon (hall be Sued for Tythes of Lands («) which by Prefcription are not charge- able with the payment thereof, or which are difcharged by any real Compofition. I (hall now mention who may not prefcribe in non Deci- mando, and who may. tSbo mat not 'Tis generally true, that a Layman can- fSjefcrtbe in non not prefcribe in non Decimando, and to pay Decimando, anD nothing in lieu of Tythes, becaufe none but tofco ma^. an Ecclefiaftical Perfon is capable of having Tythes in his own Right. But a Layman may lay a Prefcription in a Spiritual Per- fon, and fo derive a Title under him, as for Inftance, if fuch Spiritual Perfon Leafe his Lands to a Layman, he may pre- fcribe under the Paifon, and derive a Title from him. So if an Abbot had been feifed of Land difcharged of Tythes, he who is now Owner or Farmer of that Land may prefcribe in non Decimando, by virtue of the Statute 2 Edrv. 6. (o) which enadts, that none (hall pay Tythes other wiie than they were paid 40 Years before. Buttho' a Spiritual perfon (p) may prefcribe in non Deci- mando both for himfelf and his Tenants, it may be aQueftion whether he can prefcribe for his Copyhold Tenants, becaufe in fuch cafe there muft be two concurrent Prefcriptions, one for the Copyhold, and the other in non Decimando, but it hath been adjudged that thofe Preicriptions may (land together ; and (till it is a Queltion whether a Spiritual Peribn can prefcribe in fuch manner for a Freeholder, tho* he may for his Tenants for Life , for Year s , or at W i 1 1. The Churchwarden of a Parifh cannot prefcribe in non De- cimando, for fuch Lands which are given to them as a Corpo- ration for the repairing the Church, and the reaibnis, becaufe they are not Spiritual Perfons. A Spiritual Corporation may prefcribe in that manner, but when 'tis dillolved the Preicription fails, as for Inftance, a Man prefcribed that iiich an Abbot and his PredecelTor held Lands difcharged of Tythes, which Lands came to the Crown by the DiiTolution of the Abby, and fo derived a Title from thence, the Grantee fhall never have any advantage by this Prefcription without the help of the Statute, ( and he finds fault with my Lord Coke for reporting it as Law in the Bifhop otWmcbeflers Cafe, (t) that a Lord of a Mannor may have Tythes as appurtenant to his Mannor ; and tells us what my Lord Hobert's opinion was of that famous Reporter, (as he calls him,) that fometimes he hath obtruded his own Judgment as the refolution of the Court, which hath been fet in a clearer Light by the contemporary Lawyers, who have ReporteuVt.bc fame Cafes. (r) t Rol. Ab*. $j4. (/) r Rol. Abr. 6j4. (t) x Rep. 4;. Bb 2 Xf 37* Sgonttfl DttfmsnM. If this was true, it muft fhake the Autr/tity of my Lord Coke** Reports ; but what ever my Lord Hobcrt's opinion was, in reference to this Matter, he who carefuHv reads the Bifhop of Winchefters Cafe will find the BiQSop of \\rcefter mi (taken ; for 'tis not reported there that a Lord of a Mannor may have Tythes appurtenant to it, but quite contrary, viz,. That be cannot prefcribe generally to have Tythes belonging to it, without Come fperial Matter (hewn, becauleTyihes which are Spiritual and of Divine Right, cannot be parcel, or appurte- nant to a Temporal Inheritance; thefe are my Lord Cokes words. The like, he tells us, was refolved in Pigott and Hernes's Cafe, viz,, upon («) Special Matter therein alledged that one might have Tythes as appurtenant to a Mannor, now the Special Matter was thus, viz,, in eonfidtration of the payment of an yearly Penfion to the Parfon, in fatisfadtion of all Tythes a- riling yearly in the Parifti, <2v. the Lord of a Manor prefcribed to have decimam Carbarn & cttmtdum granorum yearly arifing there. Juftice Croke and Serjeant Moor, who report the fame Cafe, agree with my Lord Cook in it, viz,, that this was not a Pre- ft ription in non Decimando by a Layman, but. a Modus of fix Pound per Annum, which was the Penfion, and not fix Shill- ings, as the Bifhop of Worcefter mifbikes it, and this was to be in iatisfadtion of all Tvthes, which Prefer iption was held good, and my Lord Coke gives the reafon for it, becaufe it might be intended that the Lord of the Mannor was feized of the whole, before any Tenancies were divided out of it, and tho' as a Layman he could have no infeodation of Tythes, fo as to create a perpetual Right to them, yet they might riavc the Inheritance thereof by a Grant or Competition, and 'tis probable it might be by one of thofe way?, becaufe there was an exprefs recompence to the Parfon, viz,, a Penfion of fix Pounds per Annum. Neither can I fee the dangerous confrquence of the aforefaid diftindHon (as 'tis called-; for the Arch bifhop of Worccjfcrhim- felf tells us, (x) that Deciwa garba and Decima garbar/tm is the lame thing in a Comoofition for Tythes, and Quotes an Au- thority to prove it, (y) and if 'tis the fame thing there can be no danger in the distinction. But tho' Churchwardens cannot prefcribe in nonDccimandoy vet a Parifh may in modo Decimandi, as to pay their Tythes in Grafs- Cocks, (z.) tho1 generally it ought to be made into Hey, (u) Cro. Eliz.59?- Moor. 4?3. (*) Stillirgflcet »4ft (?) Moor. 37* xl 1 Ro!. Abr. 247. . but $>otra0 DttfmanW. 373 but a Gngle Parifhioner cannot, becaufe, &s to his part, 'tis a Prefcription in non Decimando. He may prelcribe to pay the tenth Acre of Grafs (landing, fo in (a) confideration that he hath made the firit Moath into Hay to bedifduxged of Tithes of the latter Moath. So in confideration of making the Grafs into Hay, (b) he may prelcribe to be d if barged of the Tithes of the Patfureof theie Lands So in confideration that the Parion and his PrcdectfTors * have been ieiltd in fee of a Meadow in Inch a Vill, and had taken the Profits thereof in full iatisfadion and difcharge of Tithe-Hay arifing in the faki Vill. If the Nature of the thing is altered for Uoto It mat ^ which a Modus was paid, this deftroys the WfcbargeD* Modus it felt, as if there is a Prefcription to pay fo much for Hay and Grafs (c) year- ly arifing in forty Acres of Land, and this is afterwards con- verted into a Hop-garden or Plowed the Modus is gone, (d) but yet when 'tis turned into a Meadow again the Modus (hall revive. So a Modus to pay 6 s. 8 d. for all manner of Tithe (e) of a Park, which is afterwards difparked and converted into Tillage, the Modus is deltroyed, but if 'tis to pay 2 /. for fo m*"y Acres (f) in the Park, and alfo the Shoulder of every third Deer killed there, tho' 'tis afterwards difparked, the Modus (hall continue, becaufe the Prefcription relates to the Soil and not to the Pari. Tis true, this was my Lord Hobcrfa Opinion, and the Court was divided upon it, but in the cafe of Bedingfeild and Frake, which is Reported by Serjeant Moor9 'tis iaid, that Tithes fhall be paid in kind, and no: the two Shillings only, becaufe the Prefcription as to the Venifon is gone, and by confequence the whole Modus falls with ir. But my Lord Hobert did not alter his Opinion, for he held that the payment of two Shillings was certain, and could not be difcharged by the difparking, that the Veniion was only cafual, for if no Deer was killed the Parfon could have no Venifon, and that it could not fall into a non Decimandi> be- caufe of the payment of 2 s. per Annum. If there is a Modus (a J to pay a fum of Money for Tithe of a certain piece of Ground which is afterwards built on, (*} Hob. 328. 1 Roll. Abr. 648. (b) I Roll. Abr. 649. • Idem, (c) 1 Rell. Abr. jji. (<0 Gcdb. 194. (t) 1 fteli, Abr. is h If I « Roll. Rip. 12.9. Hob, 39, Moor St 3. (a) Hob, U. ■•'l% Bb 3 $nd 374 ^obus DecfntanM. and converted into Gardens, the Modus continues, becaufe if may' reaionably be intended thatfuch a form of Tithing was ufed for the Land it felf before the Houfes were built. If Lands are given to a Parfon (b) in fattsfaftion of Tithes and he is evidted, the Tithes in Kind fhall revive, but if 'tis let to Farm, and the LefTee pays the Tithes in Kind, that fhall not deftroy the Prefcription. A Modus is in nature of Tithes, and 3n totjat Court therefore the Clergy may Sue for it in the tcrbe wobercti. Spiritual Court, and the Courts at Law will not prohibit fuch Suits, becaufe the Ecclefiaftical Court had the original Cognizance of the matter. But if the Defendant fhould fuggeft that the Parfon had iniftaken the Modus and he fhould fhew another, in fuch cafe a Prohibition (hall go, becaufe otherwife the Spiritual Court would try a Cuftom, and that might be prejudicial to a Man's Inheritance, for their Law differs from the Common Law both in the nature of a Prefcription and the Proof, as for inftance, an Ufage for term of Yers is a good Cuftom in their Law, and it allows no Proof but by two Witneffes, but at Common Law there can be no Prefcription within time of Memory, and the proof of a Fad by one Witneis is held fuffkient. Now if the Plaintiff fhould Declare upon fuch a Prohibi- tion (r), and the Defendant Plead?, and IfTue is taken upon n, and the Jury fhould find a Modus different from what is pleaded: No Confutation fhall go, becaufe it appears by xhe Verdict, that he ought not to iue for the Tithes in Kind. But if the Defendant pteads Payment, that (hall be tried in the Spiritual Court (d), ar.d no Prohibiton (hall go. .. So if a Vicar Libels for Tithes, and the Defendant pleads, that he paid a Modus (V) to the Parfon, a Prohibition /hall go for a Controverfie between Spiritual Perfons ftiall never turn a Parifhioner ad diud examen. Tis true, there is a Cafe in Bulftrode where it was adjudg- ed otherwife, and the real^n was, becaufe the Modus can never come in queftion upon fuch a Plea but the right of Tithes, viz,, to whom rhey fhould be paid, whether to the Parfon or to the Vicar, and that (hall be tried in the Spiritual Court, Laftly, What fhall be a good Modus and what not, you may fee under the reipeclive htheable things in Title Tithes. • ' • M)nh 37 > Monk' and Monajleriet* T'HE firft Monks were in the Eaftern Church, (/) and * they began in the time of Diocle/ians Perlccution, not long afterwards they were brought into Europe, and it was Athanaftw who brought them to Rome . But the Monks of thofe times were meer Laymen, (g) they had no Office in the Church, but were only fuch who retired from the Employments of the World for Study and Devotion, and the place where fevcral fuch Men lived together was cal- led a Monafiery. Eufcbitis offarcelles (b) was the firft wlto brought them in- to Holy Orders, and S* Martin, who came from Milton was the firft who brought the form of a Monaftick Life into* France, and he built a Monaftery for that purpofe about two Miles from Tours of which place he was Bi/hop. Sulpitius Sevtrm, who wrote his Life informs us, that his Monks encreafed fo faft, that there were almoft 2000 of them at his Funeral, and 'tis probable that out of fuch a great number fomc of them might come hither, for here were no Monks before the Saxons but St. Martins Monks, and thofe few Monafteries which were here in the time of the Britains were dedicated to him, and fo they were in Ireland fox St. Martin was Uncle to St. Patrick, and gave him the' Habit of a Monk. In the City o( Canterbury there was an ancient Church de- dicated to this Saint Martin, it was built by the Rowans, and rebuilt by St. AHgufline, and by him dedicated to Chrijt whith is the Cathedral at this time, he likewife built a Mo- naftery there, which is now a Church, and called by his Name, and he being of the Order of St. Beneditl, (/') was the firft who brought thefe Monks there, and placed them in his own Foundations in the year 615, Tis true, there have been iome Men who denied the Bene- dittine Order to be fo long in England ; and fomc learned Per- fons beyond-Sea have affirmed, that all the ancient EngUJh. Monks were of the Order of St. Equitas or of fame other Order, which occafioned the Beneditlines to write to our Antiquaries Mr.Carthden, Mr. Selden, Sir Robert Cotton, and to Sir Henry, Spelman, to know the truth of this matter, and they all pertijfi cd under their Hands, that there was no fuch Order as , (/) 1 Sofom. Hift. IcdleC |, l4: (tf CdU. Orig. Brit. x8;. (hj Bircr. 34*. R 7' M fV&tifr Bb4 376 ajotifes emu 2&. Benediclines 262 H. r. Can.St./4»/2i» 523 K. Step. Cifiertians 1 1 34 Cifiertians Cifiertians Benediclines Pramons Cifiertians Benediclins Can. St. Auflin 46 £. x. Can. St.Aaflin 1 201 Cifiertians Czn.Sl. AasJin Czn.St. Justin Can. St. /*«#/>> Benediclines K. Eih. Benediclines W. 1. Benediclines 666 W.2. H.i. 1292 1153 716 £. 1. 842 H. 2. 1352 1020 306 ^5 726 659 212 371 225 227 1803 3*5 523 .258 380 294 219 344 442 1659 441 284 Lincoln IV. R,?"Carfhns Monks" 237 00 II 13 04 09 10 04 II 19 03 06 08 13 II 07 04 11 02 14 05 00 00 17 02 03 04 11 C4 17 10 02 07 10 08 03 05 07 01 08 02 19 00 17 00 15 01 09 07 05 CO 15 01 00 10 17 °p 14 05 CO 00 18 06 12 00 13 03 09 07 13 II 12 02> 12 II t«t 02 The Sjtottfos attli spanaGertejs* The Names of 1 In what Monatteries (Counties and Priories 1 When I Of what Or- Found- der. ed, An.} 39 1 Of what Vallue. I2C4 112$ 1 147 1133 1132 1 1 27 Fair-place Ab. Hatups Farley Wilts Fever [bam Ab. Kent Ford Ab. Devon Fountain Ab. Tork fames Ab. Lincoln St. German Ab. Cornwall Glajfenburg Ab. Somerfet Gloucesler Ab. Gloucesie Gisburn Ab. ?V£ Godjhw Ab. O*0» ffo/w Ab. Gloucesl. Hales-Owenhb Worcefi K. jfata /V*z/o» H** 300 Benedictines 680 Benediclines K. Step. Can St Auftin K. *SVfp. Benediclines 1 246 Ciftertians 326 13 02 217 CO 04 286 12 06 374 10 06 998 06 08 805 16 OS 243 08 00 3311 07 04 1946 00 00 628 03 04 294 05 10 257 07 0$ Htilme Ab. Norfolk Jervall Ab. Tork JohnofJerufaL Jxrvortb pr. .Saj^/J Keynfbam Ab. Somerfet 1 1 00 Cr« St Auftin H. 2 Ciftertians K.Aefr. Benedict i nes H. 3 Carthufians 1 1 3 5 Ciftertians 1 3 1 8 Black- Monks 282 13 04 337 15 06 259 13 07 294 18 06 865 18 00 248 19 02 427 19 03 Temp. H.i Kennelmrth Ab Wawick H Kingfwool Kirkham Ab. A'ir*/**// Ab. /C/V^7^ Ab. Lacock Ab. Lanthony Pr. Landa Ab. Launcefton Ab £*lif Pri Lenton pr. Leicefter Ab. Zj7/?/W/ Ab. Lincoln pr. London Minors, London-boufe Gloucefter 680 H.i H.i 1139 1232 1136 ttri Lincoln Wilts GloHceli Leiceft Cornwall Kent Nottingh H. 1. Leiceft Salop K.Canut Benediclines K.Stepb. Ciftertians H. 1 Co# &» St y^«/}. G»» St Anftin Can St Anftin Benediclines • C4>z St /4«/tt* Ciftertians Ciftertians Can St Auftin Can St Auftin WfRuf. Can St ^/?«i W I. Can St Auftin 1 1 1 9 Crf» St -^»y?w 1 143 C?« St Auftin Adelfled King cfMercia H. 2. £8 624 1550 218 237 2^p 2S4 957 19 2*n l7 578 447 261 i4 239 3 24I II 2S8li 227 7 3^7 8 2?3 5 21? 18 437 6 4i?2 18 258 ,4 654 10 677 1 224 4 1721 14 ^43 4 286 iT 241 I7 337 14 1716 12 ip88 14 287 2 278 i0 351 14 486 1 7 224 2 2?3 10 io The 13 11 4 11 6 6 10 4 11 8 3 11 8 8 2 5 2 2 8 o agonftsTattti ^onatletfesf. The Names of Monafteries and Priories. In what Counties When Found- ed. An. Of what der. Or- 383 Of what va- lue per An* Selby Ab. Tork T. Conq. Sempringham A Lincoln 1 048 Shafton Ab. Dor fit 941 Skene pr. Surrey 141 4 Sherborne Ab. Dorfet 370 Shrewsbury Ab. Salop 1 08 1 Stbeton Ab. Suffolk 11 50 *S*0/j Ab. L.ScAf. Hen. 5. SmuhfieldE.K. 34 E. 3. Southwick pr. Hampfh Hen. 1. Sp ailing A b. Lincoln 1 0 5 2 Stratford Kb. Ejfex 511 &rf? Ab. North9 ton K. Step* •SW* Florida Cardigan 7. Conq. St, Stvithins Wincheft 634 Tarrent Ab. Dor fit > Hen. 3. Taviftock Ab. Devon 96 1 Taunton pr. Somerfet Hen. 1. Thame Ab. O#0# /&#. 1. Tewxjbury Ab. Glouceft 715 Ihetford Ab . AfrrfoM 1 1 03 Thornley Ab. AVaf 972 Thornton Kb. Lincoln 1139 Thurgarton^i. Nottini Hen. 1. Titchfeild Ab. Hampfh Hen. 3. Tinmouth pr. Durham Tinmeuth Northum. A Cell to Torre Kb. Devon Rich. 1. TrvinehampY. Hampfh 1042 Vale of fltyfo Denbyfh Edw. 1. Wi/awAb. fir* K.%>£. Wfeito&awAb. £//** ic6o MWA» Ab. £#r* 1 1 36 Walfingham K. Norfolk K.Steph. Walter pr. 7or£ H£ . Warfon pr. Notting WelbeckKb. Notting K.Steph. Wenlockpi. Salop 1 1 81 St.fftrtfer£& Cfo/Wr* 1C95 Benediclines Gilbortines Benedictines Carthufians Benediclines Can St Auftin Ciftertians 729 317 1166 682 615 250 Can St Auftin 173* Ciftertians Can St Auftin Benedictines Ciftertians Pram Benediclines Ciftertians Benediclines Can St Auftin Ciftertians Benediclines Clun Benediclines Can St Auftin Can St Auftin Pra*m St Albans Pramonft Can St Auftin Cifteclians G ilbertines Can St Auftin Benediclines Can St Auftin Can St Auftin Ciftertians Can St Auftin Can St Auftin Qua 12 10 4 * 8 12 H 4 15 8 602 257 761 258 1226 1507 214 902 386 256 1598 312 411 259 242 397 Sn 369 326 214 •360 900 372 391 221 389 239 249 401 ooj 11 10 4 4 8 11 16 3 8 S 6 17 2 7 5 9 7 8 *o 13 11 1 3 14 4 12 11 7io 9 4 1 1 o 2 5 16 11 04 11 03 16 10 04 3 18 * 11 7 03^ 16 6 10 I 06 8 °°V° Thr 3*4 The Names of Monafteries and Priories: In what | When |Of what Or Counties Found Ider: ed. An} Weft Deerham. We/tmin/ler Wefidcre Ab. Male Ab. Whitby Ab. Whotml Ab. Wigmore Ab. Wilton Ab. Winchcomb Ab. Woohurn Ab. Wymnndham A Norfolk Lancaft Tork Hamp/h Salop Wiltjh Glouceft Somerjet Bedford Norfolk Hen. 2. K Z% W. &*/. 1172 K.£fc. 1172 K. Eth. -87 /&«. 2. 1139 Pra*m Benedictines Clun Ciftertians Benedict Benedict Can St Auftin Benedict Benedia Carthufians Ciftertians Benedictines Of what va- lue per An. 228 CO 00 3471 00 02 260 13 07 331 0 * lift* 202. * 9 Edw.4. 14 rf. -, C c Thi 3 36 • $&Qiti\m\ii The cafe is Reported by Serjeant Moor^ (d) but 'tis not to this purpofe, for it was that a Man cannot prefcribe to a Seat iiitbcBody o:'lheChurch,hccauf'jihe Parfon and Church- wardens have power to dispose thejn to whom they think fit ; but that he might prefcribe to a Seat in an Ids, for that may be pre i umed to be built either by his Anceftor or the Owner of the Land, &c. Tis true, my Lord O.h there cites the Lady Grf/s'Cafe, who let up her Husbands Arms and Helmet in the Church, and the Parfon took them down, for which they brought an Action on the Cafe againfthim, and adjudged that it would Jye. Mortmain. np HI S is where Lands are given to fome Spiritual Perfon or Corporation, and to their Succeflors. It was occafion- ed at fir ft by the Monks perfwading the Ignorant People into' the belief of Purgatory, where the Souls of the Deceaied might be relieved by Mafles from thole Torments which otherwife they would futter, and by the fame means would afterwards be relieved from them, and this made them give Lands to thofe Hotocs to find a Prieft to iay Mafles every day for their Souls, And becaufe Inch Lands were never to revert to the Donor or his Heirs, ana by that means the Services and other Profits due for the lame were Extinct, therefore it was called a Gift in ntortua manu. So great was the Sj perdition of former Ages, that thefe Monafteries would have got moft of the Lands in England, if tome Statutes bad not been made to reftrain fuch Gifts ; the purport of which wue, vfe. that grants of Lands to Religi- ous Houies fhould be void, if made without the Kings Licenfe, that is, if they were held immediately of him ; but if fuch Lands were held of an inferior Lord, then the Licenfemufr be had both from the King and him. If there was no fuch Lkenfe, then whoever had the Inheri- tance might enter within a Year after the Alienation, and if he neglected, then trie next immediate Herr might enter in Haifa Year, and it he dkl not, then the King might. But theie Statutes did riot altogether prevent the Inconve- niencies intended ; for the Kings ie! do m refufed to confirm fuch Grants, for if they did, their Rdgns would have been very uneafie. «j Moor8-3« z Rol, Abrt 2S8. Since ggojtuarp. 387 Since the Reformation, there have been foinc Cafes, but not many, concerning thefe Gifts in Mortmain : 0) I /hall In- stance but one, viz,, a Man Devifed his Lands to'Trinuy College in Cambridge y for the maintenance of a Scholar there ; and he farther Deviled, that if any Cavil fhould hinder this Devife,or that the fame fhould not go to the College, by rcafon of the Statute of Mortmain, then he Devifed it to Robert Newman, and bis Heirs. Upon an Information brought by the Attorney General a- gainlt Newman, the Lands were decreed to the College, by vir- tue of the Statute 43 Eliz*. as being a Charitable Gift//) Tis true, the Dcvife is void upon the Statute of Wills, becaufe 'tis to a Corporation in Mortmain ; but 'tis good upon the Statute of Charitable Uies. > Mortuary. Tp HERE was a Duty paid at Funerals, by our Saxon An- *■ . ceftors, which was called Symbohm animd, or the Saxon Sod Shot, and this payment was not only enjoyned by Coun- cils, but, by the Laws of 'Canutes, one of our Danifb Kings, It was due to that Church of which the Party deceaied was a Member, and not to the "Church where he was Buried ; the payment was always made in Money, and fome arc of Opi- nion that this was the Original of Mortuaries, only with this difference; by turning the payment of Money into Goods; for in the Reign of Htn.i: it became a fettled and cuftomary Du- ty for a Freeholder to give his beft Goods as an Henot to the4 Lord of whom he held his Lands, and that which was next to the belt was to be given to the Church where the Party had re- ceived the Sacrament: It was acknowledged by Archbilhop Winchelfea, in the Reign of Edwf. 1. to be an ancient Right due to the Church ; and by a Provincial Conftitution made in his time, it wasfuppofed to be due for Tythes and Oblations which had been neglected to be paid. by theDeceafed, and therefore to fettle a reaion- able Compenfation in fuch Cafe, it was Decreed, that where there-was a choice of Three things, the Second beft fhould be paid for a Mortuary. The like was Decreed by feveral Councils afterwards, and , particularly in a Provincial Council, in the 'time of Archbi- iiiop Lan Yel. 7. 6 Rep. 29. (g) 2 Roll. Abr. 369. Hob. 3 is. :h) 2 RciL.Abr. 204, 365. [}) Moor £42. Cro, Eliz.605. 151. Boticc. 39? is now eftablifhed by (/•) A6t of Parliament, and of fucli Avoidances the Patron mult take notice at his Peril. iSeugnatton.] In cafes of Refignttion Notice muft be divert to the Patron, and that by the Ordinary to whom the Bene- fice was refigned, and if he ihould die before he £ives Notice, the Guardians of the Spiritualties mutt do it, and if they neg- lect, then it muft be done by the fucceeding Biihop before any Title of Lapfe fhaU accrew to him* „ Now in this cafe as well as in cafes of Deprivation, the Patron -nay take noti e if he will, but if he fuHef a Stranger to prelent, and his Clerk gets admiifion, &c. and the fix Months pals this Pre • n ation and Incumbency make an Ufurpation, becaule the Induction is a publick and i 01 n- aus Act, (/; and therefore the true Patron ough; to take No- tice of it at his peril, that he may provide a prober Remedy within time, and not loofe his Presentation, imlefs the Re- fignation was by fraud and contrivance to defeat the true Patron, for then notice muft be given of the Refigftation. If the Bifhop refufed to admit the Clerk l&efufal of t&e prefented to him, in inch cafe he muft give Cietfe* notice to the Patron, and (hew for what reaibn he refute, (m) and this muft be in fomereafonable time, a Month is too long. But they dittinguiih between a Clerk of a Spiritual Per- fon and of a Layman, (») for in the firftcafe he is not bound to give notice, becauie a Spiritual Perfon (hould have pre- fented one qualified in all refpecls fit for the Cure ; but he i9 bound to dve notice to a Lay-Patron where he refufes his Clerk. Tis a common Opinion that theParillii- ^etting out oners are bound to p;ive the Parfon Notice Cttrje** 0f fetting out their Tithes ; 'tis true, the Canon Law obliged them fo to do7 but 'tis otherwife by the Common Law which prevails in this cafe, for if the Parifhioner fets out his Tithes (o) truly, he is not; bound to give Notice either to the Parfon himfelf or any other general Notice at the Church of the time when he ftiall let them out. He cannot obftru6t either the Parfon or his Servants to be there, (/>) who are bound to carry the Tithes away in con- venient time after they are f.t out, if they neglect, in fucfi (K.) Jones 377, 404. Dyer 237. () 2 Roll. Abr. 369. (m) Cro. Eliz. U9. iLeon. 31. (») 3 Leon. 46. Latch. 192, 253- (°) l R.oll. Abr. $43. Stiles 342- • (f) i Bulft 336. Godb, 2:9- Noy. JQ. 2 Vent. 48. cafe 396 ©bft0, ©Wat!0it& €>M)nufori0* cafe the Parifhioner ought to give Notice that the Tithes arc fet out, othervvife he cannot have an Action for not carrying them away. Obits, Oblations^ Obventions. AN 0/>/7wasan Office performed at Funerals when the **■ Corps was in the Church and before it was buried, it afterwards came to be anniverfary, and then Money or Lands were given towards the maintenance of the Prielt who fhould perform this Office every Year. Oblations and Obventions are two words, fignifying the fame thing, and are uiually accounted to be whatever is given or offered by Religious Christians to God and the Church, whether in Lands or Goods, and 'tis not material whether fuch things are given by Will or otherwife. Tis probable that the Example of St. Pad might incite the primitive Cbriftians to offer thefe Gifts to the Church, for he appointed every one of his Corinthians and Galatians to yield foirittiing to God for the Saints every Lord's Day ; but this be :;g thought too often, therefore Tertullian tells us it was af- terwards done every Month, and then ad libitum, but it was always the CuRom for Communicants to offer. fomething at receiving the Sacrament, as well for Holy Ufes as for relief of the Poor, which Cuftom is or ought to be obferved at this Day. In the firtt Ages of the Church thofe depo/ita pietatis (?) which are mentioned by Tertullian in his Apologetick, were all voluntary Oblations, and they were received in lieu of Tithes, for the Chriftians at that time lived chiefly in Cities, and gave out of their common Stock both to maintain the Church and thofe who ferved at the Altar. But when their numbers encreafed, and they were.fpread abroad in the Countries, then a more fixed Maintenance was neceflary for the Clergy, but flill Oblations were made by the People, which if in the Mother-Church then the Bifhop had half, and the other was divided amonglt the Clergy, but if offered in a PariuVChurch then the Bifhop had a third part and no more. Thefe Oblations which at firft were voluntary, did after^ wards by a continual payment become due by Cuftom. •c) Scill. 16P. TtSt. Apolo cap. ?$■, ©bits, SDblattGtt& flDbbentions; 397 'Tis true, there are Canons which require every one who approaches the Aitar to to make fome Oblation to it as a thing convenient to be done. But at the great Feltivals all People were obliged to offer fomething, not only as convenient: but as a Duty, but the pro- portion was left to the Difcretion of the Giver, and I think with great reafon, for the boutity of the Chriftians in thofe Ages was fo great, that Men would build Churches on their own Lands on purpofe that they might have an equal (hare of thofe Oblatirns with the Clergy. And this might be the occafion that the Emperors Ccnftan- tine and Valentinian made Laws to Prohibit inch exceffive Gifts, which in thofe days were kept in Store-houfcs built for that very purpofe. But in fucceeding Ages there was little occafion for fuch Laws, for the Zeal of the People were fo confiderably abated, that inftead of thofe Repofitories the Clergy had little Cherts to contain thofe Gifts, till at laft they dwindled into fo fmall a Portion that now they can fcarce be felt in the Parfon's Pocket. Befides, thofe Oblations made by the living, it was then al- fo ufual to offer fomething at the death of Perfons, which our Saxon Anceftors called the Symbolum anim<£, andevve,;. from them, call it the Saxon Soul Shot, and this was at n*r(t diftincl from a Mortuary, tho' probably it might afterwards give a rife to that Duty. There were many other occafional Oblations in thofe days, upon particular Services, but at certain times,as at Marriages, at Churching Women, and thefe were due by Cuftom ; the Oblation of Fowls at Chriftmas, and the firtt Fruits of Corn payable on St. Martins Day. The Offerings likewife at Eafter are due by Cuftom, for they are not voluntary Oblations, but are paid as a Compofition for Perfonal Tythes due at that time, and not for Sacraments, as fome have imagined, for if fuch Offerings are not Perfonal Tythes, then none are paid in England; for who pays any thing out of the profits which arifeby manual Occupations ©r for Merchandize, befides thefe Cuttomary Offerings at Eater? Thefe are confirmed by the Statute (a) to fuch Perfons, and to be paid in fuch places where the fame hath been ufed to be paid .for 40 years before that Ad was made, but Day- La- bourers are excepted. (a) 2 Edw. 6. cap. 1 J, That* 398 ©jWnatfotn That Statute likewife en;oyns that the payment fhall be mack in the place where the Party dwell?, sttfiigb four Offer- ing days as heretofore, that is, at Chriftmas, Eafter, Whitfontide, and on the Feaft-da y o/thatSaintto whom the Parifh Church was Dedicated, andifno fuch Dedication, then it was to be paid at E after. Thus the Profits of the Churches in London, and in other great Cities, were e riginaliy Oblations and Obventions, which for many Ages hare been called Tythes ; they could not be Pra?d;al unlets the Houfes grew out of the Ground, and they could not be m':xt Tytbcs : For tho' fomething might arife by the induftry of Men, yet it was not out of the Earth, fo that it mult be a Perional Tythe or nothing, and therefore thofe cu- ftoinary Offerings at Marriages, Churching of Women, &c. which were paid before the Statute, ought to be paid now, and are recoverable in the Spiritual Court. Ordination. HT HE Apoftles appointed Bifhops, Priefts and Deacons to ■*■ be the (landing Guides and Governors of the Church, and becaufe there (hould be a SuccelHon of them continued in all Age?, for the peace and prefefvation of thofe Churches which they had Planted, therefore 'tis necefTary that there iliould be a Rower lodged fome where, to let a-part fome di- ftinct Orders of Men to thofe publick Offices, and this is called Ordination. All hold it necelTary that there fhouldbefuch a Power, but they diipute where it is. Thofe who diflent from Epifcopacy affirm, that a Man ought not to take upon him the Miniftry without a lawful Call, which is very true. They likewife agree, that Ordina- tion ought to be continued, and they define it to be a folemn letting a-part fome Perfon to a Church Office, but they fay 'tis not only to be done by imposition of Hands and Prayer, t with Fatting by Preaching Presbyters, and that thofe who are not fet a-part themfelves for the work of the Miniftry, have no Power to joyn in letting a-part others for that pur- pole; and this form of Ordinaiion was propofed to the Par- liament, in the year 1643. by an afTembly of thofe Perfons, in order to be Ratified. There are another fort of People who diffent from Epifco- pacy, and they hold, that where there are no fuch Preaching Presbyters, in fuch Cafe other Perfons lufficiently qualified and approved for their Gifts and Graces by other Minifters, being (DjWnatton. 399 being chofen by the People, and (et a-part for the Miniftry, by Prayer and Facing in the Congregation, may cxercife that Office; (6 that fome place the Power of Ordination in fimple Presbyters, and others in the People. There are fome who have advanced very ftrange notions of Ordination, telling the World that 'tis not to be Justified bji the Scripture, that the word it felf" figmfics a lifting up of Hands, and is ufed in Scripture for giving a Vote, which in all popular AflTemblies is Cuftomary even at this day ; from whence they inter ,that the Chriftian Churches were at firfl De- mocratical, that is, the whole Congregation chofe their Pa- ftor, and that by virtue of fuch choice he did not pretend to any peculiar Jurifdiclion diftinft from others, but he was only approved by the Congregation for his Parts, and appointed to inhrucl: the People to vifit the Sick, and to perform all o- ther Offices of a Minitier • and at other times he followed his Trade, and that the Chriiiians in thofe days had no notion how a Paiior could pretend to any Succeflion to qualifje him for the Miniftry, for that the pretence of difpenfing Divine things by a meer humane conftitution, was fuch anabfurditv, that it could not be reconciled to Reafon. This and many more fuch calumnies were caft on Ordina- tion, and theBiftiopsthemlclves were called Ordination Mon- gers, but it was by thole who alledged that the purity of the Chriftian Religion, and the good and orderly Government of the World had been much better provided for without any Clergy. But I fhall fhew from Scripture, from Antiquity, and from the concurrent Tefiimony or the Fathers, that Biihops had, and ought to have the Power of Ordination. When our Saviour eftablifhed the Chriftian Church, he made his A pottles Governors thereof, and vetted them with a Power to ordain others to the Miniftry, and accordingly they ordained the Seven Deacon", and coufecrated Sr. James Bi- fhop of Jertfalem, and he ordained Presbyters of that Church. That Tmothy7 as foon as he was made a Bifhop o£Ephefusy by the great A port Ie of the Gentiles, but not before, had this power of Ordination, this is allowed by St. Chryfojlom him- felf, who magnified the power of Presbyters more than any of the Fathers, and he proves h thus, w«. becaufe St. Pad crave Timothy a caution not to admit any one rafhiy to an Ecclcfi- aftical Office. Tis true, he likewife bid him riot to defpife the Gift which was given to him by Prophecy, with laying on Hands of the Company of Elderihip ; but he could not mean by thofe w 400 ©ftfnattoin words an afTembly of Ordinary Presbyters, for as fucli they could not have conferred any extraordinary Cominiffion, es- pecially upon Timothy, becauie he was at that very time a Bifhop, and ordained by St. Paul himfelf. He had a Jurifdi&ion over all the Presbyters of Afiay for he had power given him by that Apoiile to enquire into their Cpnverfation and Abilities, and then to admit them in- to that Holy Office if he found them qualified, and not other- wife. Titus had the fame power throughout that populous Ifland of Crete ^ and theie things are fo plain, that they mutt deny the Authority of the Scripture?, who deny the power of Ordina- tion to be originally in Bifhops, and therefore they have in- vented a fenfelefs Objection, vU. that tho' Timothy and Titus wcrefupcrior to Presbyters, yet the;r power was but Tempo- rary, for they were chofen b the Apoftles at that time upon & particular occafion to prefidein the AiTemblies of Presbyters to moderate he Affairs of thofe Churches, which power was to determine at the expiraiion of their Commiilion. But this cannot be proved by Hirtory or any Records, 'tis a meer imaginry Whimfie, contrived to make a Parity between thofe two dirtinct. Orders of Men, and it can have no founda- tion in Scripture, from the promifcuous ufe of the words Bi- fhop and Presbyter, for tho' tis true that the laft is ufed to fhew the humility ofaRifhop/zet'tisas true that the word A- poftleis like wife ufed to ("hew his Superiority. So that in the primitive times B (hops ordained as Bifhops and not as Presbvters, and the very act of Ordination was not then a power of Order, but it was an act. of Jurifdi&ion. This diitin6tion hath fincebeen found out by the Sohoolmen, for in thofe days, as it hath been already obferved, Bifhops and Pref- byters were accounted difti nit in Order, whatever hath in late years been advanced to the contrary. Therefore the Objection that a Bifhop and Presbyter were neither diftinct in Order or Office, that tho* the Apofiles and thofe who immediately fucceeded them, exercifed a larger ]u- rifdictron, yet it was granted to them by our Saviour, as they were Apofiles, and did in no wife concern their SuccefTors, to whom he gave nofttch Authority, nor any manner of fupe- riority over their fellow Presbyters. Thefe, and fuch like, are Doctrines wrhich neither agree with the Scripture, nor with the Fathers, they are contrary to the plain and conftant ufage in the Church for fixteen Hundred Years, during; all which time mo(t Chriftian Churches have been governed by Bifhops ; and tho' fome of the reformed had not that form of Government a- mongft ©{Wnation; 401 mongft them, yet Calvin and Bez,a, who were the moft learn- ed amongft them, have approved and commended it, and not only {0, Uit lamented that they were not permitted to retain it. But to fhew that a Bilhopand Presbyter were not accounted by the Fathers to be the fame thing, I fhall inftance the Opi- nions o£ Clemens Romanus, and Hermes, who lived and wrote .in the firft Century, and both of them affirmed they were di- * ftinct. in Order, andfo did St. Ignatius, and others in the fe- cond Century, fothat we have at lcart as equal Authority to believe that this power of Ordination was originally in Bi- fhops, as we have to believe iuch parts of the Scripture to be Canonical, becaufe thofe Books which were Apocryphal were not divided from the other till thefecond Century, and there- fore thofe which are admitted to be Canonical by the Church, muft depend upon the credit of thofe Fathers who lived in that very Century. If we look into the Ecclefiaftical Hifiories, we fhall find that this power was in the Biihops, in the firfi four Centuries, 'tis evident from the Apoftolical Canons in the third Century, and by feveral other Canons made in General Councils; and tho' the Presbyters of the Wcfiern Church were allowed to lay on their Hands at Ordinations, at the fame time with the Bifhop, yet that was not of neceffity, but only for the greater iblemnity of the Ac\ and this is allowed by Salmatius himfelf, (a) who cannot be thought partial in favour of Epifcdpacy. But there are fome who will have it that St. Jerome in his Epiftle to Evagrius affirms, (b) that the Presbyters of Alex- andria ordained their ownBiihop from the time of St. Mark to the time of Heracles, and Dionijius who were Biihops and Presbyters there, and this is produced as a common Allega- tion againft the Right of Bifhops to ordain, &c. But it will appear otherwife upon Reading the Words, for he tells us, that they Choie one out of their number, and pla- ced him in higher degree than the reft whom they called a Bi- fhop, ;uft as an Army choofes a General, e£v. fo that hefpeaks of the Election, and not of the Ordination ; for the placing a Perfon on the Bifhops Throne was in thofe days a fign that he was the Man Elected, but the Ordination was performed by other Biihops. Tis true, fome Presbyters did undertake to ordain without the Bifhop?, but thofe Ordinations were always condemned as invalid, and to be meer ufurpations upon the power of CO S*lm, 289; U) Epift. 8y; D d Bifhops 4oi ©Srtnatton; Bifhops, and even Novatius himfelf, who was a Presbyter at Rome, anda great dilturber of that Church, would not venture on fuch an Ordination when he oppofed Cornelius, and at- tempted to be made Bifhop of Rome, but fent for three Bilhops cut of remote parts of Italy to ordain him. After all, we are told by a late wrong afTerter of the Rights of the Churcb,(V) that Archbifhop Cranmer at a Confuk of the molt Eminent Divines of his time gave it under his Hand, that the Ceremonies and Solemnities ufed in admitting Bi- (hops and Prielts to their refpec~tive Olrices were not of neceffi- ty, but only to pteferve Order, and that God never promifed more Grace in committing the Ecclefiaftical, than the Civil Offices ; for the Scripture doth not require that a Bifhop fhould be Confecrated, fince the very Election or Appointment is fuf- ficienr. But with his leave, 'tis very doubtful whether that Archbi- fhop was ever of that opinion, but if he was he came to be bet- ter advifed, for he changed it, and this appears from his Ser- mon concerning the Authority of Kings, which is in his Book entituled Catechifmus, and there he obferved that St- Paul pofi- tively declared it to be neceffary to Salvation to have Preach- ers and Ministers of the word; that fuch Preachers mutt not aflTume that Honour before they were called, but muft be or- dained to that Holy Office, and fent to us by God, and that except tljey are fo fent they cannot teach with erYe£t. I know it has been objected againft my Lord o[Sarumy that m his learned Articles he feems to favour that fuppofed opi- nion of that Archbifhop, by telling us, that if a company of Ghriftians find the publick Worfhip defiled where they live, and do not know where they may conveniently worfhip God in a regular way, in fuch Cafe if they fubmit to th- fe who are ordained to the lower Functions, or by a common Content fet up one of their own number to be their Minifter, and fhould from fuch a beginning grow up to a regulated Conftitution, tho1 they are quite out of all Rule, yet if the neceffity is real, even our Church did for above half an Age, after the Penning thofe Articles, acknowledge a Foreign Church thus confti;uted to bz a true Church as to the EiTential?, notwithstanding it was irregularly formed, and continued (till to be an imperfect State. From which Paragraph 'tis inferred, that if a Minifter fhould be thus fet up without Ordination by a Bifhop, this would be to lodge an original power in the People, in favour of thofe who dilTent from Epiieopacy, •"' ' ■ ' ■ ■ — " i> t i i n ' i ' I " ,p- (0 Rights of the Chriftian Cjiurch, fo, 178, t I fhall not enquire how far this may be allowed in Caie £ abfolute ncceflity, tho1 'tis very improbable that £uch a ( can ever happen, becaufe Bilhops being let over the Church by the appointment of God himielf, he will n ver fufter them to turn all Hereticks at once, but fome will (till remain Or- thodox, to whom thofe Perlons who are qualified may refort, to have their Epifcopal power communicated to them. But as for the quibble that which is out of all Rule can ne- ver grow up to a regulated Constitution, it feemsto crie to be a very poor Witticifme, for every one knows that the Pagans who adore falfe Gods have Rules and Orders in their ibjenan acts of Worfhip, and fo from a wrong Foundation have grown up to a regulated Constitution, tho' they arc out of the true Rule by which the Church of God is governed. Having faid thus much as to the neccflity of Ordination, and in whom the power to ordain is Lodged, I fh a 11 proceed to fhew what is required by the Law of thofe who are to be ordained. Andfirft I fhall take notice of the (V) m\)at fs require* Canon, which requires that no Man /hail of tljofe torjo arc to De ordained without a Title, and be- be otfatneD. caufe fome Perfons may not apprehend what is meant in this place by the word Title, I fhall explain what it is. A Title, as it relates to the Clergy, was originally no more than entring their names in the Bifhops Roll, and then they had Authority to afhft in the Ministerial Functions amongft the Preachers of that Diocefs, and they had a right to have a fhare out of the Common Stock or Treafury of the Church. But fince Churches were Built, and DiocefTes divided into Parifhes, a Title is now an alTurance of being employed to Officiate in fome place of Divine Worfhip ; for by the Canon (d) no Man is to be ordained unlefs he is to be a Curate or Incum- bent^ or to have a Mini fters place in fome Church, or unlefs he is Fellow of fome College in our Univer/jties, or Mafter of Arts of five Tears /landing, and liveth there at his own Costs ; and that the Bifhop who ordains a Clerk without a Title fhall keep him till preferred to Jome Benefice. In conformity to this Canon, Archbifhop Lau.l fent Litters to all his Provincial Bilhops, requiring them not to admit any Perion into Orders, but thofe who had a Title for their Main- tenance, in which Letters he declared what Ihould be a Title. (c) Gmcn *n (jt>tnat( the Biihop with the Pricfts then iBS a £ncu\ prefent laying their Hands feverally on the Prieft's Head the Biihop pronounces theie Words. Receive the Holy Ghoft for the Office and- Work of a Prieft in the Church of God nm committed to thee by the impofition of our Hands, vhfi Cms than do ft forgive are forgiven, and whofe /ins thou do ft re- D d 1 408 dWnatfoii; tain are retained, and be thou a faithful difpenfer of the Word of God and of his Holy Sacraments in the name of the Father, .8zc. Then the Bifhop delivers a Bible to him with thefe words, viz* Take thou authority to preach the word of God, and to minifler the Sacraments in the Congregation where thou [halt be lawfully ap- pointed. The learned Bifhop of Sarum (V) tells us, that fome addi- tions were afterwards made to this Form, and this was by asking the Prieft feveral Queftions, the flrft is, (i.) Whether he thinks himfelf truly called according to the Will of God? &c. (2.) Whether he believes that the Holy Scriptures contain all Doctrines fufficient for Salvation ? (3.) Whether he will initru6t the People out of thofc Scriptures ? (4.) Whether he will be faithful to Adminifter thofe Do- clrines and Sacraments? (5.) Whether he will banilh all falfe Dochrmes? (6.) Whether he will be diligent in Prayers and reading the Scripture?, and in his Studies, laying afide the Study of this World? . (7.) Whether he will be diligent to order himfelf and Fa- mily according to the Doctrine of Chrift? (8.;) Whether he will maintain and promote Quietnefs, Peace, and Love amongft Chriftian People? (9.) Whether he will obey his Ordinary ? To all which Queftions the Prieft anfwers in the Affirma- tive ; but if they were ierioufly conGdered before fuch anfwers were made, elpecially the firft Queftion, whether he thinks himfelf truly called according to the Will of God, that 19, inwardly moved by the Holy Ghbft to take upon him the Miniftry, it might prove not only happy to the Perfon him- felf, but to thofe who fhall be afterwards under his Care. But .when the Anfwer is fuddenly pronounced without any previous Confideration of fuch important Queftions, when a Priefts enters into Orders only to entitule himfelf to a Benefice without any inward Call from the Holy Gho(ly if this is the cafe (as I am afraid it too frequently happens) then he fpeaks falfe in the Prefence of God even upon the mo(\ folemn occafion, and this muft be a (ham Dedication of himfelf to his Service, and 'tis very improbable that the God of Truth fhould give any Blefling to the Services or Mi- : a) Hi£ • Refers. 5 Parf, J45. xiiflvy SDjDfnatfoii- 409 niftryof fuch a Perfon who leapt into the Church by a wilful and premeditated Lie. «th» -*A4m ««*% „r^ (M * ft™11 proceed to (hew the Form f&SSgg* nos xKtl °rdTng,a f^- One Bifhop mult read the Com- munion Service, and then two other Bifhops are to read fe- veral Prayers, &c. and afterwards lnuft prelent the Bifhop e?e& to the Archbifhop, or to fome other Bifhop lawfully Commidioned. Then the Mandate for his Confecration being produced, and the Oath of Supremacy taken, and that of Obedience to the Archbifhop, and after fome Prayers and Questions ask- ed after the fame manner as before in the Ordination of Priefts, the Archbifhop and Bifhops prelent muft lay their hands on the Head of the Bifhop eledt, the Archbifhop pro- nouncing thefe words, viz,. Receive the Holy Ghojl for the Office and Work of a Bifhop in the Church of God now committed to thee by the impofition of our Hands , in the name of the Father, &c. and remember that thou flir up the Grace of God which is given thee by this impofition of our Hands, for God hath not given us the Spirit of fear but of power and love and fiber nefs. Then the Archbifhop is to deliver a Bible to him faying. Give heed unto Reading, Exhortation and Dotlrine, and think upon the things contained in this Book, and fo concludes with Prayers. But to return, we may fee by the Form of Ordination of a Prieft what is now become his Duty, and when he hath thus folemnly promifed to perform it, i cannot fee how he can re- linquifh it to the care of a Curate. That learned Prelate before mentioned tells us, that the negligence and faults of fome of the Clergy have brought that Scandal on the Church which could otherwife never fink in its Reputation, for the People feeing fuch plain and grofs faults in the Behaviour of fome Minifters are firft prejudiced againft their Perfons and then againft the whole Church up- on their account, fo that fuch Men are not only anfwerable for the Souls committed to their Charge, but for thofc Divifi- ons which areamonft us, which were chiefly occafloned by their negligence and indifcretion. I fhall conclude this Title with the Statute 13 Eliz* before mentioned, which tells us what Qualifications are required in the Perfon to be Ordained, viz* That he muft be learned in the Latine Tongue, and Efficiently infirutled in the Scripture, he mnfl not be made a Priesl unlefs he is able to give the Bifhop an ac- count, 41 c pat&ott* count of his Faith in Latine according to the Articles of Religion, or have afpecial Gift or ability to be a Preacher. And here I cannot but take notice of that Minifter who fubfcribed the 39 Articles thus, viz,. Ego fabfcribo ad tricen* ftovena artictilorum fidei, I believe this Man was neither moved by the Holy Gholt to take upon him the Miniltry, nor able lo give an account of his Faith in Latin. Tis probable that there was fome Promife, Agreement or Bond, * or other AiTurance made to procure an Ordination for him at fir(t, and if fo, the Perfon procuring it forfeits 40/. and the Clergyman fo Ordained 10/. to be divided be- tween the Queen and Profecutor, and fhall loofe any Eccle- fiattical Living which he (hall accept or take within feven Years after fuch corrupt entring into the Miniftry, and the Patron may prefent as if the Clerk was actually dead. Organs , fezCharch. Pardon. MOST Caufes of Deprivation may be remitted by a Pardon, unlefs where an Ad of Parliament interpofes and makes the Living void, as for inftance, upon an Avoidance for not reading the 39 Articles, a Pardon cannot reftore the party, becaufe by the Acl the punifhment (a) is the lofs of the Living, and 'tis not a contempt for which he might be in- dicted. So where a Man is prefented by Simony , a general Pardon will not fettle him in the Living, becaufe the Church was ne- ver full of him by reafon of the Simony. Tis true, a Pardon will excufe him from the forfeiture of the double value of the Benefice, and for that reafon it can never be recovered by an Informer, but the Church always remains void wherever the Prefentation is by Simony. My Lord Hubert (b) was of Opinion that tho' there is a Snecial Pardon of the very Acl of Simony, yet the Church Rill remains void, becaufe the Pardon cannot enable a Clerk . to hold a Benefice whom an Acl of Parliament hath difabled, if it d'd it would beaDifpenfation with the Acl it felf, there- fore if Simony cannot be pardoned where 'tis exprelTed in a Special Pardon a fortiori, it cannot be pardoned by any gene- ral words CO in a Statute enumerating feveral Offences by name, and then pardoning them, and all other Offences which t— ; r ' — ' ♦ 31 EJi2o cap* (4) C*s. Eliz £gypt, but that the Superintendency Parochiarum belonged to Demetrius, who was not only Bifiiop of the Churches in that City, but alio Parochiarum, that is, of ail the Churches where Lews had the Civil Government. In another place he takes notice that Bemetrim wasBifhop Parochia, that is of the whole Church of Alexandria and Epi- phanius relates that there were many Pariflies at that time within that City. So that the word Parochia in its primitive acceptation fjgni- fied a Diocefs, and that was fuch a part of the Roman Empire which was governed by a Lieutenant called Vic arias. Afterwards when the Church borrowed the word of the Civil State, it fignified that Divifion which was within the Jurifdiclion of a Primate, and that was as large as the Civil Diocefs, but as the word left its Latitude, and was confined to the limits of a Country Parifh, fo likewife the word Diocefs came to be reftrained to that which was called a Parifh be- fore. But with us here in England for the firft 500 Years after Chrift there were no particular Parifhes, for the Bifhop had the Government of the whole Dioceis, and the Revenue there- of was paid into thisTreafury, and he aligned a proportion to every Priefi who officiated in the Churches, which was to be for their Maintenance, fo that at ftrft thofe who are now Parifh Priefis were only Curates to the Bifhop. When Chriftianity began to fpread, by the Converfion of the Saxons from Paganifme, many Churches were built by Bi- fhops, and fomeby Laymen; but the Bifhops always fettled the Endowment, which was ufualiy done by referring a cer- . 4*4 pad(lje& tain portion of the Profits, which before that time were paid into the Common Stock or Treaiiiry of his Diocefs, and an- nexing it to thofe Churches for the maintenance of the Priefts who officiated therein, which Portion thus reierved was to a- fife within certain limits fet out likewife by the Bifhop him- felf for that purpofe, and this was done at the Dedicaiion of the Churches to fome Saint. Thefe limits were appointed according to the circumftan- ces of Times, Places and Perfons, within wh'ch the Clergy were ordered to Adminifter their Spiritual Offices Tis true, St. Auflin made ufe of fome of the Brhtfh Churches; and when the Danes Ruled here fome of thofe old Cathedral Churches were ftanding, and fome alfo of a fecond K ink, which had right of Burials and Baptilme, and were endowed with Tithes arifing within certain Precincl?, which were io large in the time of the Saxons, becaufe the Churches were but few, that Lords of Mannors built more on their own Lands, for the conveniencie of themfelves and their Tenants ; and by the Bi- fhops appoinment had a fettled Minifter amongtt them, who was to take care of the Souls living within fuch a Dirtrict, which afterwards became a Parifh. And by the way, this may be a reafon why fome Parifhes are intermixed with others at a great Diftance. For where *he Lord of a Mannor built a Church and endowed it with his own Demefnes/tis probable that fome of thefe Demefnes might lay beyond the Bounds of the new Parifh, and con- tiguous to another far diftant. But the firft Divifion of DiocefTesinto Parifhes here in£>/g- land, was made by Honorius Archbifhop of Canterbury, Anno 622. and in the Reign of King Edwyn, within which Parifhes certain Prielts were to be maintained by the Tithes arifing there, and by other Church Duties which they might take in their own Right : This is agreed by Archbifhop Parker, Mr. Cambden, and by Bifhop Godwin, who Wrote the Life of the faid Honorius, who all affirm that he was the firft who divided his Provence into Pari (lies : And of this opinion was that Learned Antiquary Sir Henry Spelrhan, but he confefles that very few Authors take no- tice of thofe fmall Parifhes in thole Ages, for the whole Dio- Cefs was then comprehended by the Word Parochia, and this a- grees with (a) Mr. Seldens opinion. (a) Hift. Tythes,2s6: We Patifljess. 4*5 We hare a farther Tertimony from ourHiftories, that there were Parifhes here in the time of Honorius, for Ethelbert King of Kent having committed great Spoils there, and ruined the Church of Pttttay who was then Bifhop of Rocbefier, that good Bifliop fled into Mercia, to fee whether the Bifhop of that Kingdom would be more Merciful than Ethelbert. m Sexvptilph was then Bifhop of that Diocefs, which was the largeft of the Heptarchy, [b) but he did not think fit to relieve bir Mother out of the Common Treafury of the Church, be- caufe he was a Bifhop, but rather gave him a Church with the PolTeflions, which muft be the Glebe and Tithes, and upon this he lived the remainder of his days, fo that there was a Pa- rifh Church Endowed at that time. And this appears a little plainer by King Edgars Law?, which began with Ecclefiahical Canons, concerning the Im- munities of the Church, and they tell us at what times Tithes ought to be paid, and how to be recovered. Tis true, thole Laws were made 303 years after Honorius lived, and one would think that in all that time we might find a plainer Evidence for the Parochial Right of Tithes. But ab ^ve 50 Years after this, 'tis very plain by King C&mi- ttts's Laws, viz,, that the frrft Fruits of Corn which were pay- able yearly on St. Martins-day, fhculd be paid by the People to that Church in the Parifh where they dwell ; and this was long before the Later an Council, which 1 fhall mention hereafter. From all which, 'tis certain, that in thofe days Churches were built within the Precincts of fome larger Parifhes, and that the limits of fuch Parifhes were always appointed by the Biflhop, who, thoJ he might be guided in fettling the Bounda- ries by the extent of the Founder's Lands, yet it could not be done without his Confent, and that was thereafon a Canon was made for the Confccration of new built Churches by the Bifhop himfelf, becaufe none fhould be Built or Endowed without his Privity. If the Bifhop gave the new Church a right of Burial, in fuch Cafe the Lord of the Mannor might (with his Approba- tion, and not otherwife) give fome part of the Tithes to that Church, which before were due to the Mother Church, but if the Bifhop would not allow the new built Church inch a Right, then it remained a Chappel ; and if the Lord of that Mannor Would have a Curate there, he ought to maintain him at his own Charge, for he was to have no part of his Tithes, for they were due to the Mother Church. Q) BedeLib, 4. fo, 1*?. 4l6 Pat ifljes. Tis true, many of thefeDiftridls within which new Church- es were Built, did afterwards become Pariihes, but even at this day the right of the Mother Church is ftill preferved in fe- veral Places, I mean in reipect to the Tithes, two Parts where- of arifing out of the Lands of the new Parifh, are (till paid to the old Church (landing in the firft Diviiion of Parifries, and this is where the Biftiop did riot think fit to allow any more than the third Part to the new Erected Church. Tis a Common opinion amongft Civilians and Lawyers, that there was no Parochial Right of Tithes before the Coun- cil of Later an, (c) but that every Man might give his Tithes to what Church he would ; this, Council was held under Alex- ander the Third, in the fifth Year of our Hen. 2. but beeaufe rny Lord Coh : could find no fuch Decree made by that Coun- cil, he thinks it wasiettled by a Decretal of Innocent the 3d. But this muftbe aMiftake, and probablv it was firft occa- fioned by our famous Canonift Lyndwood,(d) who tells us, that before that Council bene potuernnt Laid decimasin fendum red- nere & eas alteri Ecclefa darey but certainly he did not mean Parochial Tythes, but fuch which the Laiety held in fed/to 9 that is, which were granted to them from the Church, and fuch they might give to what Church they would. If my Lord Coke had looked over that Pope's Epiftles, he might have found one in favour of Lyndmod's opinion, but it was never any part of the Canon Law, it was only Written to enforce thofe Laws made in the Saxons time for the Paro- chial payment of Tithes, which had been neglected, by the 'Normans ; and tbo' rcftored by the Charter of Hen. 1. yet thole Laws were feldom put in Execution till revived by A- drian the 4th. who was an Englifhman, and the Cuftomary payment enjoy ned to thofe Churches where Due. _ The aforefaid Lyndwood who lived in the Reign of H. 5. hath given us a Catalogue of the chief things in which the Spiritual Court had ]urifdi&ion, and amongft the reft he mentions the Bounds of Parijhes for one concerning which we have feveral cafes in our Law. If the Bounds of a Parifh 0) come in Queftion in that Court between a Parfon and Vicar, tho' the Parfon is an impropri- ator, yet it fhall be tried in the Spiritual Court, and no pro- hibition (hall go, as for inftance, if thereis a Villin a Parijh, and the Vicar hath the Tithes of the Vill, and the impro- priator hath the Tithes of the reft of Parifh, and the queftion CO Lynd. Bi.b. Seld, of Tythes, 293. 2 Inft. 641. Dyer 84. Cro. Car. 422. Palm. 220, (0 Lyndw. 117. CO 2 Rol. Abr. 312. no, 7. between patifljes. 417 between. them is, whether the Lands out of which the Vicar claims Tythes are in the ParinS or Vill ? this ihall be Tried in that Court ; the Reafon may be, becaufe the Conteft is be- tween Spiritual Perfons, and the Right of Tithes is only in Queftion, but this would notpafsfor a Reafon in a parallel Cafe, between a Clergyman and Layman, \(f) where the Vi- car iued for Tithts, and the Defendant fuggettcd a Modm payable to the Parfon, here the Conteft was between the Vi- car and Parfon, who are both Spiritual Perfons, yet a Prohi- bition was granted. So if there are two Vills in a Parifh, and a Quefh'on arifes concerning the Boundaries of thoie Vills, (g) it (hall be Tri- ed in the Spiritual Court ; but the Law is not the fame where the Queftion is concerning the Boundaries of a Parifh, be- tween a Layman and a Clergy man,for if a Suit is brought for Tithes arifing inter loca Decimabilu of fuch a Parifh, (b) and the Defendant iuggelts that the Lands are in another Parifh, and that he had paid Tithes (0 to the Parfon there, this fhali be Tried at Law, and the Reafon is, becaufe the Inheritance of the Land out of which the Tithes arile mav be in Quettion, as if I hold the Lands as comprifed in a Fine lying in iuch a Parifh, under which Fine I Claim, and the Spiritual Court fhould determine that it lies in another Parifh, this may in- danger the Inheritance. So where there was a Prefentment ex Officio againft a Man,' 00 for not coming to his Pari Ih Church, and he Pleads that it was not his Parifh Church, and that he frequented another, a Prohibition fhall go. But the Boundaries of Parifhcs being now fettled by Cu- ftom, care is taken to preferve them by Annual Perambula- tions. It hath been a Queftion what flhall be reputed a Pariili with- in the Statute 43 Eltt. for relief of the Poor. As forlnftance, Hinkly was an ancient Rectory, and had an ancient Church ; (/) Stoke was an ancient Village, and parcel of the Rectory ot Hinkly. that from the time of Hen. 6. there had been a Church likewife at Stoke, and that it was re- puted as a Parifh, and that the Inhabitants thereof had all Parochial Rights, and Churchwardens, and this made it a Pariili. So where the Village ofTateridge was anciently parcel of the Parifh of HxfciU, (m) and the Tithes there arifing were (/) Sid. 332. CO 1 Lev. 78. (h) Cro. Eliz. 178, 228. 2 Roll. Abr. 282 afi. 0) r Roll. Rep. 3 3 2. (k) 1 3 Rep. 17. (0 Cro. Car. $2. (m) Cro. Car. 3?4, , { 4 418 t peculiar paid to the Parfon of Hatfeild, who always found a Curate at Toterjdge, but that at the time of the making the Statute Tate- ridge was a Parifh in Reputation, and had Churchwardens and Overieers of the Poor, and had made Rates, which were Collected. and Levied by their own Officers, that it had like- wife all Parochial Rights, and never contributed either to the Poor of Hatfeild, or to the Repairs of that Church, or joyned with them in any AiTeflment, this made it a Parifh diftincl: from Hatfeild. But making Rates alone, without having other Parochial Rights, («) will not make it a ParifTi,tho' there was a Chap- pel there before the making the Statute, and tho1 Divine Ser- vice was Read there at that time. Patron, See Prefentalion, Peculiars. T*HOSE Parifhes and Places are called Peculiars, which -*• are exempted from the Jurifdidtion of the proper Ordi- nary of the Diocefs where they lie, both as to Probate ofWilb and Granting Admini(trations,c£v. and thefe are dittingui- fhed into feveral forts. (i.) Royal Peculiars, which are the Queen's free Chappels, and are under Her immediate Vifitation, as She is fupreme Ordinary. As at Weftminjler, (o) when a Prebend of that Church is void, She may Collate any Perfon by Her Letters Patents, and by virtue thereof he will be Entituledto thePof- fefTion, without Inftitution or Iiidudtion, and he cannot be deprived by any Ecclefiafucal Authority, but by the Lord Chancellor or by Commiflloners appointed under the Great Seal for that purpofe,(/?) and if he Refigns, it mutt be to the Queen. (2.) The Peculiars of the See of Canterbury, And this is an ancient Privilege belonging to that Archbifhop, that when- ever he had any Lands or Mannors, they were always exempt- ed from the Jurifdidtion of the Ordinary of the place, and made peculiar to the Diocefs of Canterbury, (q) and we are told that he hath ^7 of thefe Peculiars in his Provence. (3.) Peculiars belonging to Deans and Chapters, Not by vir- tue of any Original Right which they had, but as derived from the Bifhop, who by reafon of feme ancient Compofition gave up his Right to them. (») 4 Mod. 157- . <«) zRoll.Abr. ?56. (/>) Pyer 254. (?) Godelph; Reporcorium Canonicum U5>. Thefe peculiar 4>9 Thefe Ccmpofitions may now be loft, (r) but where there hathbeen aconfiant Ufage for thefe Societies tn grant lnlti-. tutions, in liich Cafes they may maintain their Right by Pre- fcription, and this is done by the Dean and Chapter of St. Paul's in London, and by the Deans and Chapter of Luchfeild and of York; but yet, if the Archbifhop, in whofe Provence inch a Peculiar is, fhould grant Inftitution, 'tis not void, but void- able, for he hath two Concurrent Jurifdidions, one as Supe- rior ordinary to every Diocelan Bifhop, the other as Supcrin- tendant over all Ecclcfiaftical things within his Provence, and therefore it fhall be intended that he granted Inftitution upon the failure of the Dean and Chapter to do it, and thus it will be good till avoided, Tis like the Cafe of a BaylirY executing a Warrant v;*ithin a Franchife, (/; 'tis not void, becaufe the Franchifeis (Fill in the County. (4.) Peculiars belonging formerly to Monajlries, viz. Thofe Churches and Pari (lies which they had get appropriate.! to themfelves, either by Grants from the Bifhop or from the Pope. But thefe at firft were not wholly exempted from the Ju- rifdi&ion of the Bifhop, for he gave Inftitution upon any A- voidances ; and in the old Appropriations there was always a Salvo juri Epifcopali. Tis true, no Appropriation could be made without the confent or confirmation of the Bifhop or the Pope ; thr-ie who were Poor, and could not be at the Charge of a Papal Confir- mation had always recourfe to the Bifhop, and he might ex- prelshis confent in different Forms; for if he only confirmed the Grant of the Lay Patron, in fuch Cafe he retained his proper Jurifdiclion, and nothing paffed by fuchConnrmation* but the right of Patronage. If he was made a Party and joyned in the Grant, then he gave up all his right to the Church; but if an Appropriation was confirmed by the Pope, that carried a Total Exemption from the Ordinary. PennaKce. TTHIS is an Ecclefiaftical cenfure of an Offender, and It *"■ is inflicled on him in order to make a change or reno- vation of his Mind, and 'tis made necelTary for the Pardon of our Sins. (r) z Rolls Abj, 357* (/) 3 Lev. 211. 420 l^eimanct* It confifls in confeflmg our Sins to God in Prayer, in doing acls of Charity, Failing, and in making Rdtitution to thofe whom we have Oppreffed or Injured ; and the Effects of it are a fmcere Reformation of our Lives. Before the Reformation the cenfures inflicted by Ordinaries on Offenders were fuch, as forbidding them the Sacraments, and all other Divine Offices to be performed where they were, except Baptifm to Infants, and Extreme Unclion to Dying Perfons; and this Prohibition fometimes extended to whole Kingdoms, efpccially if the Liberties of the Church were In- vaded, and not only fo, but fometimes the Cenfure was, that the Offender fhould be Beaten, and this was called Fujligatio circa Eccle/iam, It was a Queftion whether this punifhment could be in- flicted on a Gentleman, but I fee no reafon for the- Doubt, when a King fubmitted to it ; for our King Hen. 2. alighted from his Horfe three Miles from Canterbury, and pulled off his Boots and went Barefoot to the Tomb of Thomas Becket, and fell before it, and was Whipped by all the Biftiops and Ab- bots then prefent, and certainly there were many thereto fee this unufual Pennance ; and not only fo, but every Monk of Chrift Church had aLafhat him, and afterwards he conti- nued Fading and Praying all that day and night,and would'not fuftcr a Carpet to be put under his Feet to keep them from the Stones, but it happened to be in warm Weather, viz,, on the 1 2th of 'July 1 174. About the middle of the fecond Century there were great Contefls with the Novatians, whether thofe who were Baptized during the time of Perfecution fhould be afterwards received into the Church, at latt it was refolved that they nhould not be Totally excluded, but they were to Ray fome time before they were admitted to the Communion, that it might appear they were worthy of it by fome acts of Repentance. Thofe who accufed themfelves were fooner admitted to the Sacrament then others, becaufe it was a true Sign that they were fenfiblc of their Sins, and forry to have offended, and therefore the Canons made a difference between fuch Perfons and thole who were proved Guilty, both in refpeel to the de- grees and times of Pennance ; and it was the chief bufinefs of fome fubfequent Councils to fettle Penitentiary Canons in rela- tion to this matter 5 for fome Perfons were kept in Pennance under great Severities, and for a conflderable time, according to the circumftances of their Cafes, and the nature of their Of- fences, and this was ufual in the Saxons times, as it appears by the Penitential s of Theodore and Bede9 where we may fee that the petulance* 421 the meafure of Contrition was proportioned to the Circum- ftances of Perions and Actions. The Billiop of Sarum tells us, that Confeffion at f7rrt was pubjickjthat it was taken by the Bih\np or by fome other peni- tentiary Priejt appointed by him, but this was found to be inconvenient, for fome Sins were Capital, and therefore, left fuch (hould be con fc (Ted publickly, it was allowed te make Confefhons in private, and this began in the fifth Cen- tury in fome Monasteries, and in the prefence of a Confeflbr, and afterwards in many Churches where penitentiary Priefis attended, who were very expert in this Bufinefs. But tho' the ConfeflTion was private, the Sins to beconfefled were not of that Nature, for there was no Obligation to con- feis private Sins, the Canons were made againlt publick Of- fences, and fuch only ought to be confefled that the Pennance might likewife be publick. Afterwards fecret Sins were confefT.d, and publick Pen- nance was enjoined for fuch Sins, but this was quite laid afide in the feventh Century, and particularly here in England by the Order of Theodore * Archbifhop of Canterbury, but fecret Pennance was every where pracTifed and brought un- der Method and Rules by the fame Archbifhop, and in time it was cunningly managed by Friars, with fo great Art, that they knew all the fecrets of Mankind. ^ Commutation*] About the end of the eighth Century Commutation for Pennance began, and then Prayers, Pater nofters and Maffes were enjoined inftead of Farting, and thofe who had Money, were allowed to commute it to fave Pennance, and this was received by the Prieft under the in- nocent name of giving Alms. Some indeavours were ufed at the beginning of the Refor- mation to retain the ancient Difcipline of Pennance, but the People having been fo long difufed from any open and pub- lick Cenfures, this could not be effected without the concur- rence of the Civil Power, which not being obtained, they let private Confeflion drop, there being no command for it in Scripture,and inrtead thereof the Reformers ordered a general ConfeflTion to be made in the Church. But Commutation for Pennance is ftill praclifed, for we are told that it agrees with the Curtoms ufed in the Ecclefiartical Law?, ;u(tified alio by the Common Law, and by the St*- tutz Grcumfpette agatls in the time of EL i. and by the Sta- tute ArtkuliQeri in the time of his Son and SuccelTor Ed. 2. — ■ ■ ... . - - - - - . . 1 1 • Saner Expof. 2^, Hift, Reform, sPts. 66. Be 3 :Tis, 4*2 Ipcnuance* Tis true, by the Statute Circumfpetle agatis it appears, that fbmetimes a Corporal and at other times a pecuniary puni fo- ment was inflicted for Adultery, Fornication, &c. but the Statute Articuli Ocri diftinguifheth, viz*, that where the pu- mifhment hpecuniary, and 'tis demanded, a Prohibition fhall go, but if Corporal and the party will redeem it with Mo- ney, in fuch cafe a Prohibition ("bail not go, and fo is Fite- herbert, (a) but 1 do not find that the Judges obferved this Law, for they frequently granted Prohibitions where the Of- fender was ready to give Money to commute for Corporal Punifhment, into much that Anno 15 Ed. 3. cap. 6. another A& was made, that the Miniflers of Holy Church fhould not be impeached in the Courts at Law for taking A^ey (b) for redemption of Corporal Pennance. But the King never contented to this A6t, therefore it was repealed intheiame Year it was made. So that the Ordinaries never refufed Money for Commutation, and therefore Anno 45 Ed. 3. Complaint was made to the Parliament that they refufed to do Juftice by inflicting Cor- poral Punifhments on Offenders, but initead thereof took Money, and this was grown fo notorious, that Anno 1 H. 5. (O another con plaint was made againfl: them for taking 40/. and Ibmetimes more, but never lefs toexcufe Adulterers from Corporal Punifhments, and the Complainants prayed that it might be enacted, the Ordinaries fhould forfeit ten times as much as they fhould receive, the King anfwered that he would take care with the Bifhops to prevent this abufe, which if they did not he would. Tis plain that Commutation wras pracliied in this Kingdom when the Papal Power was very great, and that it was an artificial Contrivance to get Money from the Laity, but it can be noreafon that becaule it was ufed then it mufl be fo now, for 'tis contrary to the ancient Difciplineof the Church, which always publickly cenfured fuch Perfons who were a fcandal to it, and this may be the reafon why the lower Houfe of Covocation Anno 17C0 complained to the Bifhops of the fcandal which was given by the ncn-obfervance of the Canons, and particularly in regard to Commutations. (a) F. N.B. 53, a. (i>) 2 RolLAbr.283. (r) Rot. Pari. 45. Ed. 3. No 3*. aRoll.Abr. 316. fjnfws. 42 Penfions. TPHIS is a certain fum of Money paid in lieu of Tithes, **• and arifeth either by lome Decree made by an Ecclcfi- aftical Judge upon a Controverfie for Tithes, by which they have been decreed to be enjoyed by one, and a Pen /ion inftead thereof to be paid to another, or elfe it may arife by vcrtue of fomc Deed made by the confent of the Parfon, Patron and Ordinary, and if iiich Deed fhould be loft, and the Pen/ion. hath been ulually paid for twenty Years, then it may be claimed by Prefcription, and recovered in the Spiritual Court. Tis true, my Lord Coke in his Paraphrafe upon the Statute Grcumfpeble agatis (d) was of Opinion that it could not be recovered in that Court, becaufe Prefcriptions mud be tried at Common Law, but he was of another Opinion in Spratt and Nicholfons Cafe, (e) where the Libel was for a Penfion9 letting forth that tarn per reahm compofitionem quam per anti- quam & laudabilem confuetudinem ipfe & Predece fibres fui hab ite- rant & habere confueverunt annualem penfionem, &c. here was both a real Compofition and Prefcription alledged, and yet no Prohibition was granted. At the time of the DiiTolution of Monasteries there were many of thefe Pen/ions iiTuingout of their Lands, and payable to feverai Ecclefiattical Peribns, which Lands were vefted in the Crown by the Statute 31 H. 8. but there is a faving in the A6t to fuch Perfons of the right which they had to thofe Pen/tons, but notwithstanding fiich a general faving thofe who had that right were difturbed in the collecting and re- ceiving thefe Penfons, therefore by another Statute made Ann. 34 H. 8. cap. \g. it was enacted, That if any Penflon due out cf the Lands of the diffolved Mons ft fries fioald be ttrilfull y DenteD by the occupiers of their Lands to fuch Pcrfons who were fcifid thereof within ten Tears before the diffoluiion^ in fuch cafe upon frit brought for the fame in the Spiritual Court, if the Defendant fiould be con- vitledy the Plaintiff [hall recover the vallue in Damages together with Colls, and if the Suit is at Common Law he fhall recover the like. Since the making that Statute, a Queftion (/) happened, whether the Spiritual Court fhould proceed where the Penfion Was never demanded, and by confequence could not be wilfully (<0 2 Inft. 491. (e) Godbi r$>6, (/) 2 Roll. Abr, 300; Plito. 61 a Cro. 217.' E $ 4 isnUL 4M lS>entecoffal& denied, but bccaufe that Court had an original Cognizance of the matter, therefore a Prohibition was denied. The reafon is the fame in cafes of Prefcription, (g) for a Penfion which mull be tried in that Court, became .'.icy have Cognizance of the principal matter, viz,, of the Penfion, and that (hall draw the accefiary to the lame Jurildiction. .This agrees with Fit^herbert, (b) who tells us that the Parfon may proiecute his Suit for a Penfion by Prefcription either in that Court or at Common Law by a Writ of An- nuity, but if he takes his remedy at Law he (hall never af- terwards Q) Sue in the other Court, becauie he hath deter- mined his Election. Tis true, Mr. Syderfyn (k) makes a qnocre of it, becaufe, both Juftice Windham and Twifden affirmed, that in the Reign of King James it was adjudged that a Penfion by Prefcription was recoverable only at Common Law. But it hath fince been refolved that the remedy is proper (I) in either Court, that is, if the Prefcription is not denied, for if it is, a Prohibition fhall go, and that muft be tried at Law. Laftly, If upon the endowment of a Vicaridge, the Bi- fhop decreed, (m) that the Vicar (hall pay yearly 20/. de frutlibus terra, this is a Penfion, and the Ordinary having ap- pointed the payment as a judge, the Suit to recover it fhall be in the Spiritual Court. But where there is no Incumbent, if the Patron and Ordi- nary make a grant of a Penfion there they charge an intereft, and that mult he fued and recovered at common Law. Pentecojlals. T^HESE were Oblations made by the Parifhioners to •*• their Priefi at the Feaft of Pentecoft, which are fometimes called Whitfon Farthings, but they were not at firft offered to their Priefi, but to the Mother Church, and this may be the reafon that Deans and Prebendaries in fome Cathedrals are entituled to receive thefe Oblations, and in fome places the Biflop and Archdeacon as at Gloucester. They were paid to the Mother Church at Worcefier before the DifTolution, and when H. 8. endowed that Church after the Diffolution he rtttored the Pentecoflals to them; « , > 1 . 1 M ■ (S) 1 Vent 3. (h) F N. B. 51, b. (ft Hardres 23©, 388. CO Sid, 24$: (0 ' Vent. 120. (m) Cro. Fliv.. 67 .$■ The penattp, 4*y The original of thefe Offerings might be either at the foun- ding or dedicating of a Church, or at fome other great So- lemnity, and refer ved by theBifhop byway of an agreement between him and the Founder,and fettled upon the Epifcopal See, and payable yearly at Whitfontide. Afterwards when the Bifhop admitted a Prieft to officiate in a new built Church, he might appoint the payment of Pentccoflalsx.0 him who had his Maintenance before out of the common Stock or Treafury of the Church, and this continu- ing for fome time, the Secular Clergy have now a fettled right to receive it where it hath been uiually paid. Plenarty. 'T'HIS is derived from the adjective Plenus, and Visa term * ufed in Ecclefiaftical Affairs, fjgnifying that the Church is full of an Incumbent. And this is made either by Inflitution or Collation. Tis a Plenarty immediately upon Inftitution (a) ) 6 lUp, co. 6 Rep. 5o.( ) 5 Rep. 40. (/j 2 Roll, Abr. 360,. (0 4 Rep, 75- M°°r- 5**; notice Pluralities 427 notice of this Avoidance or not, that is, he might prefent if he would, but if he did not, yet no Lapfe fhould incur, but now by that Statute he mult prefent within fix Adomhs if the fir ft Living be above the vallue of 8 /. per Annum. It would take up a great deal of tunc to mention all the Councils which prohibited Pluralities, Jtis iufheient to men- tion that the Council, of Trent affirmed them to be the fubverfi- on totiw ordlnis Ecclefi*flici9and by another far) Council, that it brings a fcandal on the Chriftian Churdi, and that 'tis an hindrance to the publick Worfhip, and to the good of Souls, and that it favours too much of a worldly Mind. But if the Pope difpenfed with a Pluralift, all thefe in- conveniencies were remedied, and therefore before I treat of the Statute 21 H. 8. I (hall take notice how the Law Rood before that time in relation to this matter. In the Later an Council a Canon was made, that no Mini- ster fliould rake two PariiTi Churches or two Dignities in the fame Church, but this Canon had no (fFecl, for the Ordina- ries ufually granted Difpenfations to take two or more Bene- fices with Cure. About 60 Years afterwards Cardinal Otbobon, who was Le- gate here from Pope Innocent the 4th, at a Council held in London, appointed that the Institution to the fecond Benefice fhouldbe void, but in another general Council held at the fame place, not long after another Canon was made, that upon taking the fecond Living the Clerk Should be deprived of the firft, and all power of Difpenfation in iuch cafes was taken from the Ordinaries, and Lynmod (n) tells us the rea- fon, viz. becaufe they did not ufe it with Difcretion, but the Pope had (till the fame Power, for he knew how to uk it better. This laft Canon was confirmed by Archbifhop Pertham, and becaufe it did not mention what valine the fecond Living fhould be, therefore the Law, before the making this Statute was, that if the fecond Living was of never fo little vallue, yet the acceptance of it avoided the firft, and the Patron might prefent, and if the Incumbent contefted the mattes with him, then he was to be deprived of both. But it feems the Pope who had the fole power of granting Difpenfations, made as bad ufe of it as the Ordinaries, for he made extravagant Grants to unworthy Perfons, and by this means thofe Canons became ufelefs. (m) Comicil Paris, *, cap, 4*. (») Lib. j. cap. z». Then 428 Ipltwalftpi Then it was a proper time to provide a remedy, and this was done by the Statute 21 H. 8. cap. 1 3. viz,. That if any Per- fon having one Benefice with Cure,, &c. being of the yearly valine of 8 1. or more, [hall accept another with Cure, and be Inftituted and Indutled into the Poffeffion thereof that immediately after fuch Poffeffion the firft Benefice jhaH be void, and the Patron might pre- sent another, and that his Prefentee was to have the benefit of the fame as if the Incumbent had died or reflgmd, and that any Licenfe, Union or Difpenfation to the contrary flpould be void. Tis true, the Statute is, that the Perfon muft be Inftituted and Indutled into the fecond Living, but yet a bare Inftituti- on without Induction will make an Avoidance, for other- wife a Man may get Inftitution to feveral Benefices, and hinder other Perfons to be prefented, and by getting Seque- strations of the Profits, may not only defeat thisAcl but all Canons made againft Pluralities. So that a Difpenfation after an Inftitution (0) come too late, becaufe by the Inftitution, the Church is full againft a com- mon Perfon, and therefore he cannot have a Difpenfation retinere that which he had before. I muft agree with Sir Simon Degg, that this had been an excellent Law againft Pluralities, and all Difpenfations to obtain them if it had gone no farther, but there are fo many Qualifications to be a Pluralift, that the power of Difpenfa- tion was only taken from the Pope and fcattered (as he calls It) amongft the Nobility, for there being about 4300 Bene- fices in England of 10 L per Annum in the Queen's Books, the Nobility can qualifie above iooo Chaplains befides thofe of the Queen, and probably as many might be qualified by Birth and Dignities, which make the Adtalmoft as ufelefsas the Canons. But fome learned Men are of Opinion that fuch Difpenfa- tions cannot fatisfie a Man's Confcience without a previous Caufe, and if any caufe may be allowed to make a PJuralift, it muft be where the Benefices are mean and are near toge- ther, and it feems to be clear that the Parliament had a re- gard to the poverty of fome Benefices, becaufe the A 61 doth not make the fecond Living void where the firft is under 8 /. per Annum, that is according to a valuation made Anno 26 fL 80 and then returned into the Exchequer, and now in the FirnVFruits Office, and not according to the real vallue, for the Livings which are worth 50/. per Annum are vallued in the King's Books at 8/. and no more, tho' fome * Books are to the contrary. I Rep. 75 ' Nov, »8. Cro. Eliz 8*3. Ap4 piucaKtp. 429 And even in fuch Cafe where the Livings are Contiguous, great care ought to be taken to put in able Curates, with a competent allowance, and the Rectors thcmfelves ought to take all opportunities to perform the Duties of their Fundtion, notwithftanding there are Curates to fupply their Places, for 'tis the conftantand neceflary attendance on Parochial Cures, which is chiefly regarded by the Act, and this appears very plain, becaufe Dignities in the Church are not comprehended under the name of Benefices, with Cure, as Archdeaconries^ Chancelorfhips, Chantorfhips, Deanries, Prebends in Cathe- dral or Collegiate Churches, Parfonagcs where there is a Vi- car endowed. But admitting a Clergyman hath a Difpenfation to hold two Livings with Cure, &c. * and afterwards he accepts a third, if the Difpenfation is particular, that is, if it exprefs the very Benefices which are difpenfed to be retained, then if he hath no other Difpenfation, the two firft are Void, but if he hath only a general Difpenfation to hold two Benefices, with- out naming them, then if he accepts a third the firft is only Void. Before the making this Acl any Perfon might be deprived by the Ecclefiaftical Law of his firft Benefice, for taking a fe- cond without a Difpenfation, let the firft be of what value it will, as hath been before obferved. Now the Statute only provides that he who takes two Livings above fuch a Value, fhall have no Title to the firft, fo that it doth not alter the Ecclefiaftical Law, nor take away any power which the Bi- fhops had before, if that had been intended there fhould have been an exprefs Claufe for that purpofe, for no antecedent Rights can be taken away by Implications, and if fo, the an- cient Ecclefiaftical Law is ftill in force; and then if a Clergy- man hath one Benefice under the Value of 8 I. per Annum, and accepts another above that Value, but without any Difpenfa- tion, thoJ he is not punifhable by the Statute, yet he may be deprived of the firft.by the Canon Law. But if that Law is ftill in force, yet the taking two Livings is not malum infe, 'tis only malum quia Prohibitum bythofe Ca- nons, and fuch an Evil may be diipenfeJ withal in order to fome Publick Service, or for the Reward of Learning or Merit, efpecially where the Maintenance i? infufficient, and this ap- pears to be the fenfe of fome ancient Canons; for in rhe laft Yearoffftw. 3. a Canon was made that circa Sublimes & liter 'atas Perfonas qua majoribus Beneficiis funt honor anda cum rA- ■ 4?o Plurality tio pofiulaverit per fedem apojhlicitm poterit difpenfari dm Beneficia retinere. And fome of thofe Canons allowed an Union in fuch Ca- fes, which was no more than the Aft of the Bifhop in uniting two Churches for the better fupport of the Incumbent, and 'tis as reafonable now that the Bifhop (hould unite two final I Benefices for the maintenance of a Learned Perfon, who may be of publick Service to the Church ; this is allowed by the Canons (a) of our Church, wich provide that a Difpenfation may be Granted to a Perfon thought Worthy by his Learning, and able andfufficient to difchargehis Duty, that is, to one who hath taken the Degree of Mafter of Arts in the Univerftties of this Realm, and wbo is a publick and Licenfed Preacher, fo that he give caution to re file on one of his Benefices for fome reafonable time in the Year, and that the J aid Benefices are not more then 30 Miles a/under, and fo that there is a Licenfed Preacher in the Benefice where he doth not re fide. I fhall now proceed to fhew in what manner Perfons may be qualified to have Difpenfations to hold two Livings; and that is, by (i .) Retainer , (2.) Birth^ (3.) Dignity. As to the qualification by Retainer or Service you, may fee it at large under the Title Chaplain, only here I fhall take no- tice, that if a Lord Or other Perfon doth retain his full Statute number, and likewife fome more, thofe fupernumeraries are not qualified for a Plurality, tho5 they fhould be firft prefer- red, (b) So if any Peer fhall have a double Capacity to qualifie Clergymen, as if a Baron fhould be made Matter of the Rolls he can qualifie only according as he is a Peer, and no more, fox that is his beft Capacity. So that if the Eldeft Son of a Peer retaineth Chaplains in the life time of his Father, who afterwards dies, fuch retainer will not qualifie thofe Men, becaufe the Son was not capable to do it at the time of the retainer. By which it appears that the Perfbn retaining muft be cap- able thereof at the time of the retainer, and he muft likewife continue in that capacity till his Chaplain is advanced, for if he dieth or is removed from his Office before that time, his qualification is determined. (a) Canon 41J (b) Dyer 112. Moor. 277,678. Cro.Eliz. 7231 8$& 4 R;p 9 '. MoOTi $$!•» But IPteacfttaff* 43 i But if a Baronefs being a Widow, retains two Chaplains, Cc) and Marries before either of them are preferred to a fecond Living, this retainer is good, and the Perfon may have a Di- fpeniation to hold fuch a Living, tho' at the time of his ac- cepting it the Baronefs was not in the lame Capacity as (he was at the time of the retainer. And 'tis to be obferved that thefe retainers (^)muftbe before the Inftitutions to the fecond Benefice, for if they come after- wards 'tis too late, becaufe the words of the Statute are, viz,* That it [hall be lawfd to pnrchafe a Difpenfatton to receive and take two Benefices with Care, &c. which he cannot do after Inftitu- tion to the fecond, becaufe the Church is then full as to the Spiritualties, and by confequence he cannot receive what was his own before. Qualification bp U5trt&.] (2.) Qualification by Birth, And this is where the Clerk is Brother or Son of any Temporal Peer, or the Son of any Knight Born in Marriage, fuch Per- sons may have Difpenfations to hold two Livings ; fo that the Son of a Knight hath in thisrefped a greater privilege than the Son of a Baronet, becaufe that dignity was not created when this Statute was made. ^uaiiftcatton b£ JDtgnit^.] (3.) Qualification by Dignity is, where Perfons are admitted to the degrees of Doclors and Bat- chelors in Divinity, or in the Civil Laws in either of our Uni-» verities. In all thofe Cafes where a Perfon is qualified by Service, he muft carry his Tcftimonial or Retainer under the Hand and Seal of his Lord, to the Matter of the Faculties, who is to make out Difpenfation , and this muft be Sealed afterwards under the Great Seal, and then he may apply himfelf to the Bifhop of the Diocefs for Inftitution, and not before ; for tho* the Statute is, that the firft Living {"hall be void when tf e Party is Inftituted and Inducted to the fecond, yet to avoid Inconveniencies it hath been held that the firft Living is Void upon thelnftitution to the fecond; for othenvife a Man might be Inftituted to leveral Benefices, not being able to ferve the Cure of one. Preaching. W HEN the Heathens wire firft Converted toChriftianity, there was an abfolute necefuty of Preaching ; and that it might be performed with the greater Solemnity, it was («) 4 Hep. nit. 79. Qd) 4 Rep. ijb. ufually 43* Preac&fag* ufually doneby Biftiops,efpecially inthe African Churches,and it was like wife fo peculiar to the Bifhops of the Galilean Church, that they called their Office Pr&dkationisOfjicum) in the Royal Confecration they were required to be diligent in Preaching, and Charles the Great was fo (trict in enjoy ning it, that he caufed thofe Bifhops to be depofed who neglected this Duty. I do not find that Presbyters were allowed to Preach in thofe Churches, till the time ot St. Anjhn^ho ufually heard St. Ambrofi every Lord's-day, and he tells us that he accounted it the proper Office of a Bifhop to perform this Duty, but at laft he obtained leave of Valerius, who was his Bifhop, to Preach before him. This gave Offence to many other Bifhops, but it afterwards provingvery ferviceable to the Church, the Bifhops by degrees gave the Presbyters leave to Preach before them, and when an ill ufe was made of it they were forbidden again, as when the Arian Herefie firft began, the Presbyters of Alexandria were prohibited to Preach. In the Church ofRome there was no Preaching at all, for if there had 'tis probable we fhould find fomething of it in the old Roman Offi:es, which are filent as to this matter. Tis true, Cardinal Bona tells us, that it was the interrupted Pra6tife of the Church, from the Apoftles to his time, for the Sermon to follow the Gofpel, but he brings no Proof that it was obferved in the Church of Rome, or any where elfe ; and Socmen takes particular notice that it was the peculiar Cu- fiom of that Church not to have any manner of Preaching * either by Bifhops or Presbyters till the time of Leo the great, about the Year 440. for he was Pope about the middle of the fourth Century, and was the firft who performed that Office in that Church on folemn Occafions. I admit, that Gregory the great, who fucceeded in the Pope- dom about 150 Years after Leo, in his Homilies on the Pro- phet Ezthel, anil on the Gofpels mentions, that fome of the Bifhops otRome were frequent Preachers, and this may very well confift with what Socmen had obferved concerning that Leo, who Preached at firft upon fome folemn andpublickOc- cafion ; but in Gregory* time, who lived fo long after him, it became an ufual thing. As to us here in England, when the Bifhops lived with their Presbyters in the Cathedrals, they fent them out to Preach as they faw occafion, and where they were moft likely to do fer- vice to the Church ; but when they became fettled in their Cures, and were no longer Itinerary, they were required to be pimWtt; 433 diligent in Preaching, and this Duty was enforced upon them by feveral Councils, as by a Council held- at Qxford, Anno 8 H. 3. it was decreed, That all fceftors Jbotild Injlrptti their Parifhioncrs in the mrd'ofGod} but this Decree was not re- garded as it ought, for in the very next Reign we find that great complaint was made in a Provincial Council of the Ig- norance of the Parochial Clergy, (e) that they were not cap- able of Preaching, and probably it might be negleclcd by them, becaufe a certain Order of Men called the Preaching Fryars had taken it up, fo that by this Council the Secular Clergy were only enjoyned to read an Expofition on the Creed, on the Ten Commandment ; the Two Precepts of Charity ; the Seven Works of Mercy ; the Seven deadly Sins ; the Seven principal Virtues, and the Seven Sacraments, and this only four times in a Year. It was \\icUiffey who by frequent Preaching revived this Duty in the minds of the People, fo that a new Provincial Conttitution was made by Archbiflaop Arundel, enjoyning the Parochial Clergy to Preach again, and giving Authority to thofe Mendicant Fryars who had no fpecial Cures, that they might Preach in EccUfiis & platcis, but not without leave from their Superiors, but the Secular Clergy were to Preach to their own Pariiriiohers, without any maneer of Licenfe. Tistrue,if any onePreached in a ftrange place,hewas firftto be examined by the Bifhop, and if he was idonens tarn moribus qHamfcknw, then he might fend him to as many Parities as he thought fit, but he was to fhew his Licenfe to the Incum- bents before he was iuffered to Preach. In the Reign of Hen. 7. Preaching was in fo great Repu- tation, that the Queen Mother imploded Fifber, Bifhop of Ro- chefier, to find out the mod Eminent Preachers in thofe days, that (lie might maintain them at her own Charge, and tho* it was afterwards fo much valued by Erajmus and other great Men of that Age5yet there were very few Sermons Preached but in Lent. The Fryars indeed made fome Difcourfcs on Holidays, not to Inftruct the People to lead Holy and Virtuous Lives, but to magnify that Saint to whom the day was Dedicated. In Lent there was more ferious Preaching, but it was not fo ferious as it ought ; for it was chiefly to applaud the Laws .of the Church concerning Abttinence at that time, confcflion of Sins, and fome other corporal Severities. ('} Prey, Cotfit. de Officio Archpresbyt. fo, 262* Ff 1U 434 l&eae&iuff. The Reformers ofthofeLaws in the Reign of Hen.%.[f) called Preaching Officium pr&cUrum, to which no Man ought to be adrmtcd nifi pietatem & convenkntem VoBrinam fecum adferat, and that none fhould preiume to Preach without a lawful Call by thofe who had power to Admit him to it, and not every one qui Spirits deife jaBat ajflatum, but the Bifhop fhould have a due confederation of the Life and Learning of thofe who they admit to this Office, by which they might be fatis- tied that the Spirit proceeds from God. i know 'tis objected againft this-power of the Bifhop, that Medad and Edad (g) prophefied amongft the People without any Commiflion from Mofes; (h) that Apellos taught in the Synagogue,tho' he was not fet apart for the Minifterial Func- tion ; and that St. Pad himfelf, tho' a great Preacher, yet he was but a Tent-maker. In anfwer to the rlrft of thefe Inftances no Man can ima- gine that miraculous Prophecying hath any manner of refem- blance to our common and ufual Preaching, and as for the teaching of Apoftles in the Synagogue, it was no more than a Solemn" Decifion of fome controverted points in Divinity, which, in thofe days was performed by the Laiety as well as the Clergy, and tho5 St. Paul was a Tent maker, yet he never Preached as inch, for when he Worked at his Trade, it was up- on a particular occafion to fupply his common neceffities, that he might not be a charge to the People, but he never Preached till infpired by the Spirit of God, which none but Euthufiafts and fome of our modern Prophets will pretend too. 'Tis likewife obje&ed, That fome of the Difciples who had no Authority from our Saviour to Preach, yet when they were feparated from him, and difperfed thro* the Nations of the Earth,they are faid in (i)Scripture to go forth every where Preach- ing the Word, but it was in uufettled times, when any Man was allowed to Preach the Gofpel, that it might the fooner be propagated amongft the People. But when once the Church was Eftablifhed, then the Cler- gy were foon diftinguifhed from the Laity, tor our Saviour himfelf appointed fome to be Apoftles, fome to be Evangeliftss (*) and fome to be Paftors and Teachers; he gave them like- wife an account of their Minion, by telling them, as hisF*- ther fent him,fo he fentthen;. Then after ~his Crucifixion, the Apoftles placed Bifhops and Elders, and Deacons, in the Church, and thjs was for the per- feeling the Saint r. (f) Reform. Legu. Eccl^fiaft. 34- Cg) n Numb, 26. (h) 18 A&s 2T. A&S 4- it. v. 19 < (k) 4 Eph- * * ? A. Now. IPieacWitflr. 435* Now, if thofe who were not lawfully fct a-part for the Miniftryi mieht fupply that Holy Function, there had been no occafion of io much sare in the Original Settlement of the Christian Church. Befides, 'tis not a Work very eafie to make Reconciliation betwixt God and Sinners, it requires fome Application to Learning and Study in Divinity, in order to a right under- standing the Scriptures, and we thould have but very few puft up with an imaginary blait of the Spirit, or (tart into a Pul- pit from a Shop, iffuch Men would take St. Bafil and St. Gre- gory for a Pattern, who, as Ruffians tells us fpent 13 Years in liudying the Scriptures, and iearching after the Senfe thereof, before they entred upon the Miniftry 5 and I do not believe that the Spirit of God exerts it felf in a more peculiar manner in them who now pretend to it , then it did in thofe Holy Men of old,but rather an opinionative Spirit of their own,and luch are called by the Prophet Ewkiel(J) fool ifh Prophets, and not only fo, but a woe is Denounced upon them0 But from this Digrelfion, about the beginning of the Refor- mation great care was taken to fend Eminent Preachers throughout the Kingdom, and thefe were not confined to par- ticular places, but had the King's Licenfe to Preach any where But the Sermons of fome of thofe Preachers were no more than InvecYivesagainft the Fryars, and fome other Perf.ms, who did faintly conform to the Changes then made, haditill fome of the old Leven in them j fo that the Government did not think it fafe to leave the progrefs of the Reformation to fuch blind and ignorant Guides, therefore two Books of Homiles were Compofed, one of them was PubliPned in the Reign of Edrt. 6. and the other foon after his Death, which being only i>hort and Practical Difcourfes upon fome place-: of Scripture, were enjoyned to be Read in the Churches, in order to oblige. both the Miniftersto Teach, and the People to be Inftrucled according to the form of a Godly and iound Doclrine. But Incumbents legally poffeffed of any EccleGaflfica! Liv- ing, might Preach in their own Parifhes without the King's Licenfe; and the Homilies were often laid afide for the fike of Preaching, by thofe to whom the Bifhops-gave Liccnfesib to do, and thefe Preachers thus Licenfed, contradicting the Opinions of others in relation to the^reat change then made in Religion, that good King Eh;. 6. lilued forth a Proclama- tion, prohibiting the Bifhops. to grant any more Licenfes to 43^ peacljing. Preach, and that none fhould be obtained but of him and the Archbifhop of Canterbury. This rauil certainly have leffened the number of Preachers, but it feems thole very Perfons who got Licenfes from the King and Archbifhop did not make good ufe of their Liberty, for that King by another Proclamation inhibited Preaching in general throughout the Kingdom, to the intent the Clergy might apply themfelves to Prayer, in order to implore a Blef- ilng upon what was then in Agitation, which was an uni- form Order of Common Prayer, and that they fhould Read the Homilies in the mean time. About two Years after this Proclamation fome of the Cler- gy began to Preach again, but it was on Week Days, and thefe were called Lecturers, which being a new and unufual performance many People came to fee and hear them from neighbouring places, and this begat an Emulation amongft the Clergy which of them could draw molt People to be their Auditors. The Learned Bifhop of Sarum tells us, that as to this Mat- ter there have been ExcelYes on both fides, for fome with great fmcerity have kept up thofe Lectures in Market Towns, and others have continued them with faction and with a defign to detract from thofe Godly Minifters who were not very Emi- nent in Preaching, and this gave a prejudice to fome Perfons in Authority, who endeavoured to fupprels all performances of this nature; and the Preachers being by this means pofTeffed with an Opinion that this would be a hindrance to Piety, have endeavoured to keep up a Zeal in the minds of the People for Lectures, which (he tells us) fmce they have been freely Preached, have not produced thofe ill Effects which followed many Years fince, when means was ufed to fupprefs them. But to proceed in the firit Year of Queen Marys Reign, Preaching wras again prohibited without her leave, and this happened by the indifcrction of one Bourne, who was Bifhop Bonner s Chaplain, who, Preaching at St. Paul's, reflected le- verelyon the proceedings in King Edward's Reign, iniomuch, that his Hearers were fo mfenfeel at his Sermon, that one of them threw a Dagger at him with very great force, but the Parfon faved himfelf by ftooping, and the Dagger (tuck fart in the Pulpit. This prohibition of that Queen was an effectual means to rertore Popery; for it muft be difficult in her Reign for any of the reformed Religion to get Licenfes to Preach, which were freely offered to thofe of the contrary Opinion. Thus pjeac&iiiff*- 437 Thus Gardener Biftlop of Winton licenfed feveral to Preach in any Cathedral or Pariili Church, and this mo(t of the Clergy fubmittcd unto, yet fome had the courage to Preach publickly notwithitanding the Queen's Prohibition, but they were committed to Pnion and profecutcd as diiarlecled Per- fons to her and to her Government, and thus it flood during her Reign. But all this while we have no account of any Preaching by Bifhops, for that was almofl difufed, infomuch, that in Queen Elizabeth's Reign when Pirn OxintHs preached a Ser- mon, it was looked on as one of the Wonders of that Age. In the beginning of that Queen's Reign there was fo great a fcarcity of Mini iters who would comply to the Reformati- on, that (lie licenfed Lay-men to Preach publickly, and we have an account of an High Sheriff of Oxfordfhire, who in the fir ft year of her Reign preached the Aflize Sermon in the Univerfity there, but 'tis probable he did not perform it ab- fqite cu)uflibet fubtilitatis textura fantaftica, for Co Preaching was called in Ed. 6. time, tho' 'tis very remarkable that a Layman fliould Preach in an Univerfity where fo many of the Clergy are educated. For the mod part oi that Queen's Reign one Preacher fup- plyed feverai Cures, for the grcateft part of the Parochial Clergy being unable to Preach themfelves, where obliged to hire thofe who were able to perform this Duty, and for the greater encouragement of preaching Minifters, it was enadled in the (a) 13th Year of her Reign, that none Jhpttld be ad- mitted to a Benefice with Cure, &c. of above 30 I. yearly valine in the Queens Books, but a Batchelour of Divinity or a Preacher law^ fully allowed by fome Bifhop or by one of the Umverfities. Afterwards a Canon was (b) made to enjoin them to Preach one Sermon every Sunday in the Year, either in their own Parifhes or in fome other Church or Chapel where there was no Preacher. But yet thefe beneficed Clergy muft have an allowance to be Preachers, for if they were not Licenfed then another Ca- non requires them to procure one who wasj and he was to Preach once in a Month in the Parifh Church, and on other Sundays to read the Homilies. And no Strangers were admitted to Preach without pro- ducing a Licenfe (V) for that purpofe, and that the Bifhop might have an account of them who tranfgreiTed in this mat- ».'■ — ' ■ ■' ■ ...I,.. 1 . - «» I, . 1,. ». (a) 1 3 Elirl cap. 12. (£) Canon 45." (c) Ca3» 5©; Ff 3 tei\ 438 peacfntiff. ter, the Churchwardens were enjoined to keep a Book (d) wherein the Perfon fo preaching was to fubferibe his name and the day when he preached,' and the name alio of that Bifhcp who gave him Licenfe to Preach. And no Perfon was to oppofe the Doclrine (e) in one Church Which was delivered in another without firit ac- quainting the Bifhop with it, and receiving Orders from him what to do. Thefe are the Canons which were made in King fames his Reign, and which relate to preaching, and they were made at a time when many excellent Preachers lived, and particu- larly Mr. Perkins and Reynolds, and ethers who gave the peo- ple fuch a tart of Religion and Peity by their frequent and elaborate Sermons that they kept it always warm in their Minds, and this was carried on with very great Diligence in all that Reign by very learned and eloquent Preachers, and continued in the Reign of his Son and SuccelTor till the Civil Wars broke in upon the peace of the Church, and then every body preached befides Schoilars. As foon as Peace was reftored to the Nation, the Church was foon furnifhed with eminent Preachers, and no Age ever produced a mere learned Clergy then at this time, who by their Preaching and Writing may convince the People that they fet a valine on true Religion, and who by their Exam- ple and Doctrine have endeavoured to reclaim the loofe and vitious part of Mankind, and are not only become the Ho- nor of their Fundion, but have given all unprejudiced Per- fons a fufficient Demonftration that they have a far greater regard for their Flocks than their Fleeces. None of thefe Minifterscame in by purchafmg Licenfes to Preach, which was done formerly, and therefore the Statute was made which provides (/) That if any perfon takes a reward *o give a Licenfe to a Clergy- man to preach more than the jtt/l Fee, the perfon taking it for fins 40 1, and the Mini ft cr fo Lice n fed for- feits 10 1. and k to loofe fach Living as he fbali obtain feven years aftenfuch Licenfe , and the Patron may prefent as if the Clerk was actually dead. And that they may quietly perform their Duty, the Law (g) hath taken care that Preachers fh all not be difturbed in the Church, which if any one fhall attempt to do, the Con- stable or Churchwardens of the Parifh may bring the Offen- der before a Ju'tice of the Peace, who iliali commit him to Cuftody, but not CO the Common Goal, then the Juttice • - ; i if) 31 Elll cap. 6 ti) X M?.ri* cap. 3- who who committed him, together with another Juftice of the Peace, is within fix days afterwards to examine the Fa6t, and if they find caufe they may commit him to Goal for three Months, and from thence to the next Quarter Seflions, at which, upon his reconciliation and giving Bond to be of the good Behavour for a Year he fhall be released, but if he perfift in his Obttinacy he (hall be committed without Bail till he Repents. And by a late Statute 'tis 20 /. penalty to didurb a Preacher, as well in a Conventicle as in a Church, but this muft be upon a conviclion in SelF.ons, and in order thereunto the Of- fender muft give a Bond of 50/, with Sureties for his Ap- pearance there, if he refufe he muft be committed till the next Seflions, the proof muft be by two WitnefTes upon Oath be- fore one Juftice of the Peace. Prebend and Prebendary. Hp HIS is a Member of a Cathedral Churchy and fome are *■* of Opinion that he is called a Prebendary a prubendo Auxilwm Epifeopo, but I rather think 'tis from that portion which the Church yields to him out of her Stock for his Main- tenance, which is called pr) tells us, there might be a Chapter before they had any PoiTefTions, from which it may be inferred, that there might be a Prebendary before he had any peculiar Maintenance, but whether he was diftinguifhed by that name before he had any Prebend it doth not appear. Tistrue, all the Revenue of the Church was formerly in the Bifhop, and afterwards he granted certain Portions to the Dignitaries, and for this reafon he is of common right the Patron of moft Prebendaries. Some indeed are Donative (*) as at Weftminffer the Queen collates by Patent, and by vertue thereof the Prebendary takes PorTeflion without Inftitution or Induction. Some are in the gift of Lay-men, but in fuch cafe they muft prefent the Prebendary to the Bifhop, and the Dean and Chapter induces him, and places him in a Stall in the Cathe- dral Church, and then he is faid to have locum in choro, Thefe Prebendaries are likewife diftinguifhed into th^fe which are called Simple and Digoitory, ' " 'Ff 4 A 44° pebenti anti P?ebttttiarp; A jsmple Prebendary is fuch who hath no Cure, and who hath no more but this Revenue for his Support. A Prebendary with Dignity hath always a Jurifdidtion an- nexed, and for thisreafon he is called a Dignitory, and his Jurifdiftion is by Prescription, as for inftance, a Prebendary prefcribed for himfelf and his Fanners to grant the Office of a Commiflary, that he made a I.eaie of the Prebend for three Lives, and that the Leffee granted this Office with all Profits, Commodities and Advantages , &c. to the Plaintiff, that the De- fendant claiming a Right under the Dean and Chapter li- belled for it in the A relies. The Court was divided upon the point in Law, (I) whe- ther any Eccleflaftical Jurifdidtion palled by this Leafeto the Leffee, fo that he might make a Commiflary to keep Courts, &c. the objection was, that it was a Power or Truft annexed to the Perfon of the Prebendary as he was a Spiritual Member, and therefore it could not pafs to his Leflee, eipecially if a Lay-man, for a Commiflary was no more then a Deputy, which the Leflee could not depute. ■ ; * 'u But it was anfwered, that tho5 the Prebendary was a Spi-^ ritual Perfon, yet his Jurifdidtion was Temporal, and there-'* fore might pafs by thofe general words in the Leafe, efpecial- ly if it had ufually pafled fo before, but I rather think that an Office of Jurifdidtion will not pafs by general words, as a Recorder cannot make a Deputy without a Special Grant or Cuftom to warrant it, Thefe Prebendaries make the Chapter, of which the Dean is Chief, aud therefore when a Prebendary dies the Profits are in the Dean and Chapter till another is collated, and if after- wards he accepts a Deanry (/) his Prebend is void by Cejfion ; fo if he is made a Bifhop the Queen prefents to his Prebend. But the acceptance of a Deanry mufi be underftood to be in the fame Church, therefore Anno 1 1 Ed. 3. ( m) the Bifhop of Durham having prefented a Clerk to a Prebend of the Church of Sr. Andrew, and afterwards prefented the fame Perfon to a Deanry in that Church, it was held that the King fhould re- cover the Presentation to this Prebend, becaufe one and the fame Perfon cannotpoflefs two Prebends in one and the fame Church, which is very true, but the reafon was not ap- plicable to the cafe, viz,, that a Prebend is void by the accep- tance of :i Deanry in the fame Church, which islikewife true, but then it mult be underftood of a Prebendary who is a com- pleat Member of the Chapter, that is one who hath locum in (k) Raim. 88. i Lev. ir; (') 2 Ryll, Abr ^?. (») u Ed. L B. R. Rot. s\. i Roll. Ab;. i(,i. " cboro pjebcnti anti pe&ensarp. 44* choro & fiiffragmm in capitalo for an Archie neon may be either a Dean or Prebend of that Church where he is Archdeacon, be- caufe quatenus fuch he hath no Vote in the Chapter. Before the Statute 14 Car. 2. a Lay-man (n) might be pre- fentedtoa Prebend, becaufe 'us a Benehce without Cure, &c. and for that reafon a Prebendary (0) and a Parochial Bene- fice are not incompatible Promotions, for one Man may have both without any. Avoidance of the fir ft. This is proved by common Experience, beGdes the (p) Ca- non which enjoins Prebendaries wot to abfent themfclves from their Benefices with Cure for above one^Month in a Year, and that they fliould, amongft thcmielves, proportion the times of their Refidence in the Cathedrals, (o that fomc of them might' be alwaysRefidentthere, and after the time appointed by "their local Statutes is expired, they are required to go to their Benefices, or one of them to difcharge their Duties, and this the Bilnop is to fee duly performed. And that Lay-men were promoted to Prebends, we have fe- veral initances, as Anno 2 Ed. 6. the Earl of Hertford had the. promife of fix, the Lord CrommU was made Dean of Wells, and fuch Ecclefiaftical Benefices were conferred on more Laymen before that Statute, but none fince, for now fuch Perfons only who are Ordained by Epifcopal Ordination are made capable of all Ecclefiaftical Promotions. And becaufe a Prebend it ielf is not a Benefice with Cure, &c. therefore a Prebendary is not oblidged to read the 39 Articles, but he mutt fubferibe the Declaration, for that is re- quired by the aforefaid Statute, viz,, as he is a Perfon in Holy Orders and taking an Ecclefiafticai Dignity upon him. But by the Canon he is obliged to Preach in his (*. da 44^ 19»fentatfott. dance ; (c) for after fuch an Alienation the Grantor may pre- lent, but then he muft enter for a forfeiture in the life time of the Incumbent, (d) for if he neglects it till his death and then prefents, this is Void, becaufe the Eftate of the Grantee for life was not determined till the Grantor had claimed it as forfeit- ed, which being omitted, the Prefentation vefts in the Grantee as a Chattel upon the death of the Incumbent, and fhallnot be diverted by the Prefentation of him in Reverfion : And becaufe there are feveral Perfons who have a right of Prefentation,I fhall treat of them diftin6tly, vizi. Of Prefenta- tions by Common Perfons, Coparceners, Joyutenants, and Tenants in Common ; by Corporations, by Baron and Feme, by Executors, by Infants, by the Que en. H&2 a Common ^etfon.] As to Prefentations by Common Perfons, 'tis agreed, that all who have ability to Purchafe or Grant, have likewife an ability to prefent to Vacant Be- nefices, and this may be done by Perfons Excommunicated or Outlawed, but in fuch Cafe the Bifhop may refufe the Prefentee, That the Prefentation muft be within fix Months after the Avoidance, and that a Clergy- man who is Patron cannot prefent himfeli^ (0 but may either pray to be admitted by the Bifhop, or he may devife the next Prefentation to his Execu- tors, and if by fuch devife be appoints that they, or either of them fhall prefent one of their own number, the Prefentation made by the reft is good, fl>2 Coparceners.] Coparceners are but as one Patron in the Law, and therefore they ought to agree in the Prefentati- on of one Perfon,if they cannot, the Elded fhall prefent alone, and the Bifhop is bound to admit her Clerk. But if they fhould feverally prefent feveral Clerks, the Bi- fhop is not obliged to award a Jus Patronatus, becaufe they prefent under one Title, and fonot like the Cafe where two Patrons prefent by feveral Titles, but if the Eldeft Sifter joyn with another Sifter, theBifhop may furTer the Beneficeto Lapie, which he cannot do if fhe prefents alone, and after (he hath prefented the next (hall have her turn, and this privilege doth not only extend to the IiTue of the Eldeft, if fhe fhould die, (f) but likewife to her Husband,if he is (g)Tenant by the Curtefic If one Coparcener u faros upon the turn of another, that fhall not put her to her Writ of Right, but fhe fhall prefent upon the next Avoidance, becaufe an ufurpation amongft Coparceners is only for that turn upon which the ufur- pation was made. (O 2 Roll. Abr. 352. (d) Jones 3 448 IPjetentatfom If there are two joyntenants of the next Avoidance, (/) one of them may preient the other, but if he prefents a Stranger the Bifhop may refufe him. So it Three have a right to prefent, and Two of them pfc- icnt the third Perfon,(>/) the Bifnop cannot refufe him,becaufe he cannot prefent himielf, but if one alone had prefented a third Perlon it had been wrong. Co?po?atton p?cfcmtng.] When a Corporation prefents, it muft be under their Common Seal, and by the true name of their Corporation, (n) otherwife 'tis void. I admit that there is a contrary Judgment, in the Cafe of the Dear; and Chapter of Norwich >, (o)who were Incorporated by the name of the Dean and Chapter of the Cathedral Church of the Holy Trinity of Norwich, ex fundatione Regis Edwardi Sexti, which words were omitted in a regrant to them by the fame King, and yet the grant was held good, but it was by rep fon of the Statute of confirmation, made in the firft Year of that King's Reign, (p) which recites that he made fevcral Grants, &c. and for avoiding all controverfies which might happen concerning any of them for want of true nam- ing ar.y bodies Corporate, it was ena&ed, That iuch Grants made or to be made during his life, fhould be good, notwith- ftandingthe mifnaraing, &c. Wy Cjeecuto?*.] If a Man hath a grant of the nextPrefen- tation, and he dies, the Church being full, the right to prefent goes to his Executor ; the Law is the fame if he dies,the Church being void, and without devifmg his right, for the voidturnis a Chattel, and before 'tis actually vefted in the Executor, he may grant it over to another. But in fuch Cafe if the Teftator in his life time prefents a Clerk, and dies before he is admitted, and afterwards the Ex- ecutor prefents another, the Bifhop may receive either. If the fame Perfon is both Patron and Incumbent, and he dies, (q) tho' the Prefentation is thus fevered from the Advow- fon, and vefted in the Executor, yet the Heir fhall prefent, be- caufe where two Titles commence at the lame inftant, as in this Cafe, upon the death of the Incumbent, the Advowfon defcends to the Heir, and tho' the Avoidance is vefted in the Executor, yet the eldeft Title fhall be preferred. But where a Bifhop hath a Prefentation in right of his Bi- fhoprick, and dies, his Executor fhall not have the void turn^ but the Queen, becaufe the Temporalties are in Her Hands, and She hath a right to prefent upon an Avoidance, during (/) i And. a. Mooi. Dyer 3©S. I Inft. 186. (m) 2 Roll. Abr. 348, fn) i Bulft. jr. (0) 1 Rep, 73, (?) 1 Ed. 6. cap. 8. (<>) 3 Lev. 47- the pjefetttatfou. 449 the Seifiire, and alfo upon an Avoidance on the death of the Biftiop. ~ . , $u0bant> ant) tdtife.] If a Feme Covert hath a right to pre- fent, lhe cannot do it without her Husband, for the Prefenta- tion mutt be in both their names, or he alone may pi (exit during the Coverture. And fo he may after her Death, if he is Tenant by the Cour- tefie, and if he happen to die after the Avoidance, and before the Church is full, 0) his Executors, and not the Heir at Lavy (hall prefent, becaufe it was vefted in him as a Chattel, and therefore it (hall go to his Executors. A Guardian in Socage cannot prefent to a £?cCcntatiori Church, for by the Law he is not to meddle ot? Jnfants. wjt^ any ^^ |3Ut for w^at ne niay ac_ count, (b) which he cannot do for a Preferttation, becaufe he is to take nothing for it. But fome are of opinion that he may prefent, (/?» (WDyef348. 2 Roll. Abr. 3*4. (?) 2 Roil. Abr. 35*. PUto 17, Gg 2 ncm 4** p?act!ratfon& from him, and fo it was from the (htcen, fo that this feems to be an extraordinary Reafon. The next queftion is, whether a Common Perfon can ac- tually revoke a Prefentation ? or whether he fhould not vary camulando ? fo that having prefaited two Clerks the Ordinary may admit which he will. My Lord Rolls tells us he cannot actually Revoke, and cites a Cafe in Dyer Q) to prove it, which mult be a Miftake, for there is nothing relating to this Matter, but the opinions of Dyer and Mofinfon, that a Common Perfon cannot revoke his Prefentation after Institution and before Induction, which is very true, becaufe upon the very Inftitution the Church is full as to him. But certainly he may do it before his Clerk is admitted, (f) becaufe a Prefentation is no more than a Recommendation of a Perfon to the Ordinary, in order to be admitted to a Bene- fice,and carries no Intereft with, it as hath been mentioned be- fore. Procurations. CINCE BiQSops, by the Common Law, are to vifit their *-* DiocefTes, in order to inquire into the Manners and Be- haviour of the Clergy, both in refped to their Duties, as they are Minifters, and what care they take to keep the Churches and Parfonage-Houfes in Repair, therefore the fame Law hath provided that it fhould be done at the Charge of thofe Inferior Clergy who are Vifited,whichisby a certain Tribute called Procurations. This is defined by the Canonifts to be exhibit io ftimptuum tie- cejfkriorum faEta Prolans qui dioccfos peragrard) Eccleftas ftibjetlas vifttant ,and it was to be provided fuitable to the quality of the Vifitors, but with great Moderation and Temperance ne jc~ juniorum docirinam rubentibus facets pradicer.t, and from procur- ing thefe Entertainments for them and their Attendants, they were called Procurations, and the Canons were to ltrict in this matter, that Money was forbidden to be given in lieu of Vii\ua\syfobpQ>na mdedifHonis terranex, and the Vifitor who received any Money, if he was a Bifhop, or above that Degree, lie was to reftore to the Church twice as much as he took from it, and that within a Month after he received it, but if he re- fufed he was liable to an Interdiction ab ingrejfn Ecclefa. (r) Dyer 34$. if) Latch, a ; *. pocutatioiijB* 4*3 If under the degree of a Bifhop, lie was to be fuipendcd ab Officio & Beneficio. But the Bilhop in thofe days being ufually attended with great Equipages at the time of their Viiitations occafioned great Complaints amongft the Clergy, * for as the Canon takes notice, they were obliged to fell the Church Plate to buy Provifion for them and their Attenda its, and that longi temporis vffium brcvls bora confHmeb.it, therefore by that Ca- non their Retinue was limited to a certain number, viz,, if an Archbifhop was the Vifitor he was not to come with above Fifty, if a Bifhop, not to exceed Thirty, a Cardinal Twenty five, and an Archdeacon ieven. If the number of the Difhes had been limitcdas well as their Retinue, it might have been fome eale to the Clergy, but the Vifitors frequently Stimptmfas Epula* qaarebant, thoJ they were directed only to take a competency, and that cum gratiarum aclione, and twenty or thirty Horfe being a great Charge to the poor Clergy, (for they might ftay a Day and a Night) therefore to remedy this inconvenience, Pope Boniface the 8th Anno 12^5, made a Conftitution, that Vokntibm vifitatis & non aliter, the Vifitor might receive Money inftead of Pro- curations. But Hill the Clergy were opprefled by the exorbitant de- mands of the Vifitors, for tho' this Canon made it lawful for them to compound for Money inftead of Victuals, yet the fum was not limited. Therefore about fixteen Years afterwards a Complaint was made of this matter in the Council of Vienna under Pope Cle- ment the 5th, but it was net redreiTedtill twenty fix Years af- terwards, viz,, by a Decree made by Benedict the 1 2th, the fum was proportioned according to the quality of the Vifitors and theCircumftances uf the Perfons vifited, but (fill leaving them at liberty to pay lb much in Money or in Victuals. So that it muft t e a mifiake of Sir Simon Degg (a) to affirm that the payment of Money was begun by compofition be- tween the Vifitors and the Clergy, by which every one was to pay fuch a propor.ion to them to be difebarged of this great OppreiTion, for it was certainly begun by thofe Canons, and thz quantum was fettled by Beneditl the 12th, but becaufe the Perlbns vifited had (till power either to pay the Money or procure the Vidtuals, 'tis probable the Vifitors afterwards compounded with them for Money. ! Concil. Later. Sub. Alex. 3 Anno 1175, Cvu 25. (a J Fol. 201, M 9. And 454 Piocutation^ And this voluntary payment being continued in many place?, did in time grow into a Cuftom by which the quantum is now fettled and paid at this day. That Procurations are due ratione Vifitatknis is without all queftion,. but there hath been fomc doubt whether they are due for that alone, the reafon which is ufually given for it is, that Procurations being only an exhibition to the Vifitor for his travelling Charges, when he ceales to Vifit nothing is due, and that when religious Perfons were dereigned, they were not fubjecl: to any Vifitation, and by confequence no Procuration was due. If this is true, then Archdeacons can have no right to de- mand Procurations in that Year wherein the Bifhop Vifits, fo that Ceffante can/a ceffat ejfeclns. But this doth not hold in Procurations the payment whereof may be refembled to the cafe of Lands held by the payment of a Rent pro war da Call ri> thoJ the Caftle is demolished or de- cayed, yet the Rent mult be paid. In like manner, tho' Parfonages impropriate arc now made Lay-Fees, and are in the hands of Perfons not vifitable, yet the Money which hath been anciently paid by Compofition between the Vifitors and the Clergy ought ftill to be paid. This payment is now become a certain and fettled Reve- nue of the Archdeacon, and 'tis in effecl: his Subfiftence, 'tis Valued to him in the Queen's Books, for which he pays Tenths, and in feveral Grants from the Crown of impropriate Rectories thefe Procurations are ftill left as a charge upon the Impro- priator. I agree that fome Canons have been formerly made in this Kingdom prohibiting Procurations to be paid to Archdeacons if they did not perfonally Vifit, and that they fhould not pre- fume to take any Fees for not Vifiting. But Cuftom hath obtained againft thofe Canons, for 'tis not reafonable that an Archdeacon fhould be deprived of this Profit for his fubmitting to the Bifhop in his triennial Vifita- tion, this would be to punifh him for his Obedience to the Inhibition of his Diccefan. Therefore thefe Fees having been for a long time enjoyed and paid by the general confent of the People to the Arch- deacons themfelves when they do not vifit in Perfon are juftly due to them, and at fuch times they ufually make inquiry in- to theCircumftances of each Parifh either by themfelves or by their Officials, and this is done at two Chapters held about fyfter and Michaelmas, and 'iis called a ViGtation, for which thefe Fees are due to them as well when they do not icrfocally vifit as when they do. The l$20curatfon& iss The next thing I (hall mention is where thefe Procuration are to be recovered, and as to that matter it would be necefla- ry to confider how the Law flood before the Ad of 34/^8* cap. 19. and what alteration was made by that Statute. And firft, it ieems very plain that before the making that •Ad; Procurations were recoverable in the Spiritual Court and not ellewhere, unlefs where the Plaintiff claimed them by Prefcription, and then it was triable at Common Law, tho' llnce it hath been doubted whether a (b) Bill in the Exche- quer might not be proper in iuch cafe ; but that mutt be in- tended where they have not been paid within time of Me- mory,and this is by vertue of the faring in the Statute of 31//. 8. cap. 1 3. by which the Monafteries are given to the Crown, and the Lands belonging to them were ordered to be under the Government of the Court of Augmentations, Saving to all Perfons and their Heirs fitch Right, &c. Proxies, and other Profits which they or any of them may have or might or may claim a* if that All had not been made. So that if an Ecclefiattical Perfon hath a Right to receive Procurations tho* they have not been paid llnce the making that Statute, yet his Right is faved and he may recover it by a Bill in the Exchequer ; but where Procurations have been paid fince the Statute, it will be preiumed that they were paid before and at the time it was made, by which 'tis enacled, That Procurations which were due and had been formerly paid by religions Houfts then difolved, fhould ft ill be paid by the Occupiers of the fame Lands tofuch Eccleftaftical Perfons who were feifed there- of withinTien Tears before the Diffolution, and if upon Suits in the Spiritual Court for the fame, the Defendants fhallbe convicted, they were to anfwer the Value in Damages together with Cofts, and that the Plaintiff jhould recover the like at Common Law when the Caufe is determinable there. There is a Provilb in this laft Acl, viz. That if the King had demifed any of thefe Lands for Life or Tears with a Covenant to difcharge the Leffee from the payment of Procurations, that the Par- ty claiming them fiallfue in the Court of Augmentations and not elfewhere, which Courtis now annexed to the Exchequer. But this Provifo doth not extend where any Lands were granted by him in Fee, but only to iuch cafes where the King had granted any particular Ettates thereof, and therefore a Prohibition (c) was denied to ttay an Excommunication for not paying Procurations upon fuggetting this Statute, and that the Party ought to be iued in the Exchequer. ——————— 1^ — — «s— — ^— ^— — t^— — — *m 1 ■ i» ■ (k) Hatdrcs j 8c. f>J Hfydrd ,88, G g 4 Th? 45 6 PjG&tbftiotu The Reformers of the Ecclefiaftical Law (d) would hav the Vifitors Sequefter rhe Profits of the Living in cafe of neg leer or remfaltopay Procurations, and to proceed agai nil them by Ecclefiaftical Cenfures, but the uiiial Remedy is iu the Spiritual Court unlefs it is claimed by Prefer iption. ' Prohibition. J fhall treat of this Subject only as it relates to the Spiritual x Court, to which this Writ of Prohibition is directed, up- on a Suggeftion that it doth not belong to thatiCourt but to the Courts of Law ro take Cognizance of the matter. It may be neceffary in this place to mention the Contefts which have formerly been made between thole Courts; for in the time of H. 3 . the Prelates made ieveral Canons directly agamft tht Laws of the Land, (e) and my Lord Coke tells us what they were. That they might try the Bounds of Parifhes, the right of Patronage and of Tithes, and mat no manner of Pofleffions which were held of the Church (hould be tried in the Tempo- ral Courts . a rid many mere in fnbftance (as he calls it) were then made againft the ancient andjuft Writs of Prohibition, and to enforce Obedience to thofe Canons the King himfelf was admonifhed to obferve them, or an Interdict was to be put up- on his Lands and Revenues, his Subjects likewife were to comply upon pain of Excommunication. But notwithstanding thefe Admonitions, and tho1 all the great Officers of State, and many of the Judges were then Clergy-men, yet they proceeded according to" the Common Law, and with great difficulty kept the Spiritual Courts within their proper Jurifdi6uon, and this was done by gran- ting Prohibitions to thofe Courts where they encroached upon the Courts of Law. This occafloned the Clergy to exhibit feveral Articles to the Parliament Anno 51 H. 3. which were called Articuli Cleri, and which are fmce loir. But Anno 9 Ed. ?. the Archbifhop of Canterbury, in the yiame of himfelf and all the Clergy, exhibited fixteen Articles to the Parliament which were likewife called Articuli Cleri. The firft and fifth of thofe Articles concern Prohibitions, and the Anfwers which were then enacted by the Parliament were as follow. id) F0L336. (0 2mft. 595. That pofjifetttcm; 45-7 That no Prohibition Jhall go where the Suit was for Tithes meerly as fuch, but if a Parfon Ihouid fell his Tithes and then iuefor the Money in the Spiritual Court, a Prohibition (hall be granted, becaufc by the Suit, the Tithes which were before Spiritual are turned into a Chattel. So if the Tillies .ire once let out (/). and afterwards carried away by the Occupier of the Land, if the Parfcn will fue for them in the Spiritual Court, a Prohibition ihall go, becauie by the ieverance from the nine parts they are become a Chat- tel, and he may maintain an Action of Trefpafs for this wro::g ; but Juft'cefV^, (g) who Reports the fame Cafe, tells us, the Court were divided, and the better Opinion was, that the Peribn who let out the Tithes might be lued in the Spiritual Court for ca^'ying them away, but not a Stranger. The other Article was, that no Prohibition ftiall be granted where the Tithe is demanded out of a Mill newly erected, of which I fhtt a Collateral a Suggeftion of fome Collateral matter, ^uggefllon, which doth not appear in the Libel it felf, as if the Suit is for Tithes of Sylva Cadua, the Defendant may fuggett, that the Trees were more than twenty Years growth, io if the Suit is for Tithes in Kind, (/) he may fuggeft that the place is not within the limits of the Parifh. iS)nc aattttufe*] Prohibitions have been frequently denied in Caufes which are proper for the Jurifdidtion of Spiritual Courts upon a Suggeftion that thofe Courts refufed the proof of one Witnefs, fo is iVoy 12. and five Years after that Refolu- tion the Defendant wasfued for Tithes, and fuggetted (w) that he had a Leafe of them, which the Spiritual Court would not allow, becaufe he had but one Witnefs to prove it, but he could not have a Prohibition, for that Court having cogni- zance of the Original matter fuch Suggestions had been ufu- ally made for delay, but if he had pleaded the Leafe, (») and offered to prove it by one Witnefs, and the Court had refufed that proof, in fuch cafe a Prohibition would have been gran- ted. It hath been likewife denied where the (0) Suit was for a Legacy, and the payment was proved by one Witnefs. But the later Authorities are other wife : for if a Defendant pleads a Releafe of the Legacy and proves it by one Witnefs, a Prohibition (ball be granted if the Spiritual Court (hould refufe fuch proof, becaufe at Common Law fuch proof is good (p) evenagainft a Record, for if there is a Judgment or Statute againft a Man, he may prove the payment of the Money by one Witnefs, and that is admitted to be a very good proof, and fo it is to prove the hand of a Witnefs (q) who is dead by one Witnefs living. As for Legacies this diftin&ion hath been made, that where it iiTues out of a Chattel (r) no Prohibition fhall go to a Suit for fuch a Legacy, but if it iflue out of Lands, a Prohi- bition will be granted, becaufe the Spiritual Courts have no Jurifdi6tion of Lands. (0 2 Roll. Abr!2$2. (i»y 1 Ci-o. 269. 12 Rep. 67. (») 2 Roll. Abr. -302- . Kob 247. Yell.92. (0 Het. S-. (p) Hob.iSS. (?) Hob, 2*7. (r) 2 Ro.I. It fntate 3itttpe6it. 461 It has been likewife held that 'tis not properly a Legacy (*,) where Lands are appointed to be Sold by Executors, and the Money to be divided ; fo that if a Suit is for any part of it, a Prohibition will be Granted. gHtare Impedit. HT HIS is a Writ which lies for him who is feized of an *■• Advowfqn, and is diftnrbed in the right of Prefentation, and becauie 'tis now become the ufual remedy in fuch Cafe?, I fhall give a {hort account, (1.) OftheWrititfelf. (2.) Who may bring it, and who not, (3 >) Where it muft be brought, and the form of the De- claration. (4.) Of what things it lies. (5.) Where it fhall abate, where not. (6.) Again ft whom it may be brought. (7.) Of the Defendant's Pleas. (8.) Of the Judgment in a Quare impedit, &c. f ) 6 Rep' ffh (0 W, 2, cap, j. Auyno 1 3 Ed .1 , And 464 Ctuate StnpeWt* And 'tis to be obferved, that the Bifhop and Incumbent are now ufually named in the Quare impedit, the one to prevent a Lapfe which might otherwife devolve on him pendente lite - the other that he might be made a (k) Party to the Suit, and lo be removed by a judgment obtained againft him, without a Scire facias to (liew caufe why he fhould not. But the fure way to 'prevent a Prefeniation to take effect pendente lite, is to ierve the Bifhop with the Writ neadmittas9 &c. and if he fhould 'afterwards admit any Clerk, and the Plaintiff fhould recover, he may have a Outre incumbravit, &c. againft the Bifhop, and fhall remove him who came in pendente lite, let it be by what Title it will. W\)o map tying tu~\ (2.) In the next place I fhall fhew who may bring a Quare impedit, and who not. But before I proceed upon this matter it may be neceflary to inform the Header that there muft be a Disturbance to maintain this Action, and that the effect of it is to gain the Prefentation, and therefore a Man cannot have two Suits for the fame thiiig, for 'tis the nature of this Action to be final, either upon a Difcontinuance or & Nonfuit, (/) but he may have as many as he will againft feveral Perfons. The Grantee of the nextAvoidance may maintain a Quare impedit, (m) againft the Patron. The Husband may have it alone where the Church of his Wife becomes Void, («) during the Coverture. And as the Grantee of the next Avoidance may have it, fo may his Executors (0) for any Disturbance in the life time of the Teftator, and the Damages which they recover fhall be AiTets in their Hands, and this is within the equity of the Statute of 4 Ed. 3. cap.y. (p) which gives Actions of Trefpafs to the Executor, tor a Trefpafs done to the Teftator. If a Man builds a Church, and isdifturbed in the Prefen- tation, (cf) he may have a Quare impedit without alledging a Prefentation bv any one, (r) for that makes no Title. But generally, he who will maintain this Action, muft ei- ther alledge a Prefentation in himfelf,orin him under whom he Claims, and if there are diftinct Patrons and Incumbents, the Quare impedit mult be prafentare ad mediet dem Ecclefia, but in fuch Cafe it may alfo be pr of the Church is, but for an Advowfon in t6e ioan of t&e Wales the Writ muft be brought in the next JDeelaratton. Englifh County, that is, as my LoxAVan^kan tells us, (j) when the Church is within the Marches of Wales y becaufe the Lords Marchers could not write to the Bifhopsot Wales, which the Judges in their Circuits might do, where the Churches were within the ancient Shires belonging to the principality of Wales. As to the Declaration 'tis not fufficient for the Plaintiff to alledge (*,) that he, or fuch a Perfon from whom he Claims were fuzed of the Advowfon of the Church, but he mutt al- ledge a Prefentation made by one of them, for ifnot, the De- fendant may Demur to the Declaration, except where a Man by the King's Licenfc makes a Church Parochial, and ap- points it to be prefentable, there if he is difturbedhe may have a Quare impedit, without ailedging a Prefentation in any Perion, becaufe of the ncceffity of the thing. Now, the reafon why a Prefentation muft be alledgcd in the Plaintiffis, becaufe in its nature 'tis Indifferent and Mi- litant, as my Lord Vaughan calls it , and it may be annexed to fuch a Title, which may prove the Defendant to have a right to the next Avoidance, therefore the Plaintiff muft joyn the laft Prefentation to his own Title, by which it may appear that he hath a right to prefent now as well as then. (0 2 And. .a j. («) io Rep. 136. 1 Inft. i$.a. Jx) Crc. Eliz.$Ii. Owen 25.-. (;>' Vaugh. 410, *ll* (^) Vaugh. 57. , f - ■ 466 Attare ampcWt. Next to the Declaration, it may be pro- tf)f teljat trjlnga per t0 ^XVQ fome account of what things u ltc^* ^ it lies, as for Inftance, it lies of a Dona- tive, and in fuch Cafe the PhintifYmuft Declare o) quod per- mit tat turn pr&fentare ad EccU/um. it lies for atJifturbance to prefent to a free Chapel, which the Plaintiff hath by a Grant from the King, (b) if the Sheriff will not put him in PoiTeflion, but in this Cafe, and likewife for a Dill urban ce to prefent to any other Chapel, the Writ muft bt(c) pr. (A)i-^olrRei?,237 Cro;C who is the Difturbcr, ought to be ftma*bel*oiigftt» named in the Writj becaufe' the5naming him doth not feem to be Material ; for if he is named, and fhould die pending the Aclion, it (hall not abate, as already bath been obferved ; bertdes, the Incumbent who isthediftur- ber, is always in Pofleflion, (f) and he is eafily known, but it may be difficult to find out who prefented him; But now the Law is, that if the (f) Patron is not named in the Writ, the Incumbent may Plead ifc in abatement, but the Ordinary cannot have that Plea, becaute his Ads do not de- pend upon the Patron's right. And the reafon feems to be very plain why the Patron ought to be named, for he ought not in common Juftice to be difpof- fefled of the Patronage, without being made a Party to the Suit, that he may have liberty to defend his Title, efpecially where he is to be diverted of his Inheritance by the Judgment given againlt him,tho'it may notbefo material to name him where the Prefentation is only to be recovered. But the naming the Incumbent doth not concern the Pa- tron, (jt) for he connot defend his Title, becaufe at Common Law he could not plead any Plea which concerned the right of the Patronage, yet he muft be named in the Writ, for other- wife the Patronage, and not the Prefentation will be recover- ed, and by eonfequence the Incumbent will not be removed. If the Queen isPatronels, She may not be named in the Writ, and if She brings a (Mare impedit' She need not name the Patron who prefented 1 art, unlefs where She hath a Title to prefent by Lapfe or by Symony, and in fuch Cafes if She is dirturbed to prefent, She muft name the Patron, (f) a And. 23. (r) 1 And. 6ft if) 2 I^on $8. (1) sCro, 6$lt (u) Hob, fibuate ampeWt* 4^9 So where a Bifhop hath collated by Lapfe a Quare lmpsdk ma/ be brought againft the Collatce without naming the Patron, It is ufual likewife to make the Ordinary a Defendant, and the reafon is to prevent a Lapfe, for if the Patron is difturbed and the Church is not full, a lapfe may incur pendente lite which my Loi&Coke * tells us is prevented by naming the Or- dinary, and that if in fuch cafe he ihould collate, his Clerk would be removed upon the recovery of the Patron in the Quare Impedit. But fome late Writers are of another Opinion, viz. That barely making the Bifhop a Defendant doth not prevent a Lapfe, unlefs he is alfo found to be a Difturber, and that it cannot be for the Benefit of the Patron to name him in that Writ, for if by the naming him a Lapfe ihould be prevented, then if the Patron ihould recover againft a Difturber, he can only have Damages to half a Years value of the Church, but if a Lapfe is not prevented by naming him, and he Ihould collate becaufe the Patron was difturbed, and did not reco- ver his Prefentation within fix Months after the Avoidance, then if he fhould happen to recover afterwards, he ihallhave Damages to tm Tears value of the Church for the lofs of his Prefentation, and this is given by the Statute \V. 2. cap, 5. but if making him a Party would prevent the Lapfe, then the Pa- tron ought not to recover the two Years value in any cafe, becaufe 'tis his fault not to make the Bithop a Party. Having {hewed who are to be made parties to this Action, I fhall now give an account of the Procefs againft them which is by Summons, Attachment and Dijirefs, and if brought againft ieveral, they may have feveral EfToins before Appear- ance, which may be taken either upon the Summons or At- tachment, and if one of the Defendants is eflbined, k muft be adjourned for Fifteen Days, and the fame day is given to the reft, and if the Plaintiff doth not adjourn the EiToinhe fhall be non-fuit. But the Defendants are not bound to appear after they have caft their Eflbins, becaufe this may be done by a Stranger, but they muft appear upon the Grand Diftrefs, otherwife the Writ (hall be awarded to the Bifhop, (a} and fo it fhall if they appear and make default. So one may appear before the reft, and Procefs fhall be continued till Diftrefs can be had againft them, and the Plaintiff may Declare againft him who appeared, and if he j — 1 , ~, * 3 Inft, 34*, b. 3 Cro, pj. (j '" wgh 7 ? flCtuaK 3fmpeWf* 471 mutt have recovered, becaufe, by the courfeof the Common Law, neither of them were fuffered to controvert liis Title. But this ineonveniency was remedied by that Statute, which gives the Incumbent power to counterplead the Kings Title and not only in his own cafe but in cafes of like nature, that ie, where a Prejcntee is Incumbent, (V) for he istiie «n In- cumbent upon a ColLtiim, and therefore fince the Statute he may counterplead the Title of any other Perfon who fhall pretend a right of Prefentation fo that turn to which he was prefented or collated, (d) altho' he claims nothing m the Patronage himfelf. But then he muft be perfona imperfonata0 (e) that is, he muft be inftituted and inducted into the Church, and fo become a compleat Incumbent in Pofleflion, and in fuch cafe if the Patron fliould make default or plead (f) an inefficient pie* it fhall not be prejudicial to the Incumbent, for if the Patron confeffes the Plaintiff's Title the Incumbent may deny ir, (g) and fet forth that of his Patron, and tW he may in either of thefe cafes pray Judgment and a Writ to the Bifhop, yet no fuch Writ fhall go to remove him till his Plea is deter- mined. Tis likewife to be obferved, that he mutt not only coun- terplead the Plaintiff's right, but mult fhew his Patron's Ti- tle, and therefore muft fet forth that he was prefented and by whom, for that is traverfable, (h) and by this means it will appear whofe Title it is that he Defends, for he Hull ne- ver make himfelf (i) perfona mperfonata by the Prefentation of one Patron, and defend his Title under that of another, the/ it be a Title fufficient to deftroy that of the Plaintiff. But this muft be unlerftood where he pleads that he wa,s prefented by a Stranger, who is no party to the Aclion, for in fuch cafe he muft alledge that his Patron was feif:d of the Advowfon, or of the Mannor to which it did appc , but if he pleads Plenarty exprafentationeof the Plaintiff himlelf, or by Collation from the Bifhop, there he need not fet out any Title. So that upon the whole matter, (Z) the Patron and Incum- bent cannot prejudice each other by their ill pleading, or neg- lecting to plead, for both have a diftincl: intereft in the thing, viz,, the Patron in the Advowfon, and the Incumbent in his Freehold, and in the profits of the Church, and therefore it (0 Hob. 321. Jones 4. frO 7 Rep. 26. (e) March. 159. (/) Dyer 1, b. 3 Leon 47. (s)Hjb. 162. (h) Cro.Car. 591. (i) Hob, 319. Jones;. 2 Luc. 2*30. CO 1 And. 23 1. H h 4 would 472* €tuate ampetrtt* would be very unreafonale that any A£l of the Patron fhould be prejudicial to his Clerk after he is Inftituted, or that the Acl of the Incumbent fhould be injurious to the Patron. But it may happen that neither trie Plaintiff norDefendant(?) may have Judgment, but a third Perfon, where it appears on the pleading that neither of them have any Title, as for in- ftance, if one of our Univerfities fhould bring a Quare Impe- dit again ft the Defendant, for that the Patron is a Recufant Con- vicl, and the Defendant pleads that the Advowfon was ap- pendent to aMannor, and that two parts thereof were feifeel by the Queen who granted the fame to the Defendant Cum per- tinentiis, here the Queens Title appears upon the Record, and the Plaintiff could have none, becaufe the Queen had feifed two parts of the Manner, and by confequence the Advowfon was vcfted in her, neither could the Defendant have any right, becaufe a grant of a Mannor Cum pertinentiis did not pais the Advowfon without naming it, therefore the Queen muft have it, but where her Title appears only upon Evidence given, there 'tis otherwife. Now, thoJ the Incumbent cannot prejudice his Patron, yet he may deftrcy his own Title by ill Pleading, (m) as if he mi- frakes a Chrijhan name, or if he varieth from the day on which the Plaintiff did alSedge the Difturbance to be made, as for inftance, if the Plaintiff fets forth the Difturbance to be on the 29th day of March, and the Defendant entitles himfelf to an Incumbency on the yh of May following, without tra- verilng, confining or avoiding the day alledged in the De- claration. But if he pleads ne Di/turba pxs, or that there is no fuch Church for which the Plaintiff had brought this Action, he fhall have a Writ to the Bifhop, (n) for if there is no fuch Church the Plaintiff can have no advantage by that Writ, and if there is, the Defendant hath no prejudice, for he doth not know it. So if be pleads that pending the W7rit the Bifhop did infti- tute another who was indudted, this fhall not abate it, be- caufe the Defendant did not deny the Plaintiffs Title or the Difturbance , but only pleaded matter relating to the Bifhop. He may plead that the Church is full ex pr&fentatione of the Plaintiff himfelf before the Writ brought and this will abate it, t/j Mfigr 872. Hob, ug, (m) Tones $27. (?0 Joces 427. CUiate ampetxt 473 If there are feveral Defendants, and Judgment is had a- gainft one by default, there (hall be no Writ to the Biihop till t is likewife had againft the other; and fo'tis if they (0) pi ad feveral Pleas, and one is tried for the Plaintiff, there mult be likewifc Judgment upon the other Pleas before he can have any effect of his Suit, and the rcalon is, becaufe he bath made fsveral Dilturbers, and therefore mult recover agaii it all, foi till that is done it doth not appear that the Title is in him. But if a Writ is brought againft two Defendants, and one of them appeareth upon the Grand Diftrefi , and the other piakes default, a Writ (hall be awarded to the Biihop to ad- mit the Plaintiff's Clerk, and then if the other Defendant appears, and the Title is found for him, there (hall another Writ likewife go to the Biihop (p) to admit his Clerk, and both being admitted they may try the Right in an Action of Trefpafs. Now when the Defendants have pleaded according to their refpeciive Rights, if the Plaintiff replies, and IfTue is joined, the Jury mult enquire into four things ; (1.) Whether the Church is full or not. (2.) If full, then ex cajm prafentatione. S3.) If fix Months are paffedfince the Avoidance. 4.) And laftly of the * yearly value of the Church, which they are to find deducting what is paid out of it. If they fhould neglect to enquire into thefe particulars, (d) it may be fupplied by a new Writ of enquiry, and no Writ fhall goto the Biihop (>) till the other is returned or the Da- mages releafed, for till that time the Judgment is not given upon the whole Record. So if the Jury give a Verdid for Cops, which they ought not to do in the Action, yet if there is a Special Entry of the Judgment, viz,* (f) quod nullo hahito refpeftu to the Cofts, the Court awards that the Plaintiff fhall recover Damages, this will help it and make it good. The Judgment is to recover the Prefentor 4Df tfoe Jufcg* tion and Damages, of both which I" (hail ment, antJtrjcgfc treat diftintfly. Utt» of f t, As t0 tjjC Prefentation, a Writ (hall be awarded to the Biihop, and in fuch cafe the Incumbent mult be removed if he was a party to the Suit. (0)Brownl.i6i. (p) 2 Iaft. 124. J Cro. Car. SS2. (q) 10 Ref. iii,fe) Nov 66. \f) 1 R«U. Rep, 363. 3 Bulft. 17s. r.^.w.ip J aTis 474 OXimz 3impeHft. Tistrue, in Bofmlfc Cafe (t) 'tis faid that if the Church is full of one who is a Stranger to the Writ, and if it happen to be pendente lite and the Plaintiff recovers, he fhall have a Writ to the Bifhop to remove him, and tho' it fhould after- wards appear that he had a right to continue Incumbent, yet the Bifhop is excufed by the Writ. But this Cafe is fmce denied to be Law, for regularly there ought not to be a Writ to the Bifhop («) without" a Scire Vac. firft brought againft the Incumbent to fhew caufe why, the Plaintiff fhould not have Execution, becaufe 'tis unreafonable ' to turn a Man out of Pofleflion without giving him an oppor- tunity to defend it. Tis true, the Bifhop (a?) can be at no prejudice by. admit- ting the Clerk for the reafon before mentioned, tho1 another is in PofTefllon, or thoJ himfelf had collated pending the Acti- on, but by his refufal or making an infufficient return to the Writ he may be fined, and a. Sim dicu awarded to him up- on a Penalty. And not only fo,but a quare non admifn(x) lies againft him, which muft be brought in that County where the refufal was made, but he may plead that the Church is litigious between the Plaintiff and a Stanger. Cant of Crroj.] But the Defendants may bring a Writ of Error to reverfe the Judgment, and then the Court where the Proceedings are, may grant a Snpeferdeo* to the Writ awarded to the Bifhop. It hath been a Queftion ff the Bifhop (y) pleads that he claimed nothing but as Ordinary, and Judgment is obtain- ed againft him "and the reft of the Defendants, whether he ought to be joined in the Writ of Error, becaule he hath no manner of Loft, but the better Opinion is, that he ought to be joined, for he is a party to the Record. j If the Judgment fhould be affirmed upon the Writ of Er- rrr, the Plaintiff in the AcYion fhall have Damages, but the Plaintiff in Error fhall have none, if the Judgment fhould be rcverfed, and upon fuch reverfal the Judgment in a Quire non sJmifit (-O if any fuch fhall be, mutt be alfo reverfed. ^Damages,] As to the recovery of Damages, I muft ob- ferve, that at Common Law none were recoverable in a Qua- rt Iwpcdit, they are given by the Statute of W. 2. (a) and are thus divided. d) £fte&-5t* (*) SicL>t. (re) j Leon. 138. (0 Cro. Car. H2- %er4* f 0 Go. Ei.iz.62. 2 Cro, 94. (*0 8 Rep. 14k (a) W. 2. cap.-S. Ann* ifl if If the Defendant difturbs the true Patron, fo that by iuch Difturbance the fur Month? pais before he can recover, then if the Bifhnp collates fas lie may) (he Patron lofes his Prc- feiuai; ii pro h.ic vice, and for that lofs lie ilia 11 have Dama- ges to two Tears value of the Church upon his recovery againlt the Diflurber, and if he is not abletopnyit, he mult be com- mitted for two Years. . But if the fix Months are not pafled, and the Plaintiff re- covers within that time, then he fhall have Damages only to half a Tears value, becaufe he recovers his Premutation, and if the Dilturber is not able to pay it, he fhall be committed for half a Year. But notwithstanding this matter, (b) there is a late Au- thority, that in fuch cafe the Plaintiff fhall have no Damages, for if the Church is void he hath the Fruit of Ins Prefentation by a recovery within fix Months after the Avoidance, and that if the Jury give any Damages there fhall be a remittitur entred upon the Roll without moving the Court, and this is now become the constant pradiife in fuch caies, which feems very reafonable. Neither fhall any Damages be had again ft theBifhop where he claims nothing but as Ordinary, unlels the Plaintiff will likewife prove that he is a Difturber, for till then he is not convicted of any wrong. The Queen can recover no Damages in this A&ion, becaufe (he cannot lofe her Prefentation by any Lapfe occafjoned by theDifturber, and fo fhe is not within the rnrft branch of the Claufeof that Statute of W.2. and if fhe is not comprehended in the firft Claufe fhe cannot be in the iecond, for they have an entire dependance on each other. 'lis true this was made a Qucftion Anno 7 Eliz,. (c) and it was held that the Queen fhould recover Damages provalore medietatts Ecclejta, and the Abridgment of Fitz,berbert (dj is cited to prove it, which is likewife true; but in the lame Book (Titulo Damages) 'tis held othcrwife, and he cites a cafe Pafchty 3 H. 6. to prove it, but there is no .fuch cafe in the Year-Book in that Term, and if he was miftaken in that, 'tis probable he might be {0 in the other, for Anno 31 -ElU. 0) it was adjudged otherwife, and a Judgment was reverled becaufe Damages were given for the Queen. / fiJ * £?' 5P' (f) D?tr **6* b' W Fitz' Abr- T'c- QH«* tapeditx 8x. (t) Cro. El|z. jft* i Leon. »*$>. Regifi er. 47^ Regtfter, fee Office in Bzfiop, Archdeacon, HAVING mentioned ibme things of a Regifter in other Titles, Ifhallonly add, that the Office of a Regifter is grantable for Life, and if any Queftion fhould ariie con- cerning fuch Grant, it (hall not be tried in the Spiritual Court but at Common Law, for tho' the fubjeft matter of the Office is Spiritual, yet the Office it felf is Temporal. And as it may be granted for Life in Poffefion, ( f ) fo it may be granted in Reverfton, and even to an Infant Exercen- dum per fe vel Deputatum fuum, but this muft be underftood where it hath been ufualiy granted in Reverfton for Life, and not otherwife. And the better to regulate the praclife of thefe Regifters there are feveral Canons * made, vU. That if a Regifier or his Deputy [hall receive any Certificate without the Knowledge or confent of the Judge, or [hall not caufe a Per/on to be called who is cited to appear upon any Court day, or rvho [hall put off the examination of Wi'neffes, or [ball not obey the lawful Monition of the Judge, or doth not write or caufe to be written fuch Citations and Decrees which are to be put in Execution, or [hall not regifier Wills, or {hall Jet down any thing not decreed by the Judge, or in tranjmiffion of Pro - cefs ad quern {hall infert any thing that is not truef or omit any thing negligently, or {hall receive any Fee to favour the party in Caufes commenced ad inltantiam partis, pr fhall be of Council with cither of them concerned in the Suit, or [hall do any thing malidoufly in the Execution of his Office to the prejudice of the Proceedings, in any of thefe cafes he fh all be fufp ended by the Bifhop for one, two, or three Months, according to the quality of his Offence , and the Bi- fhop may appoint fome other P erf on to execute the Office during fuch Sufpen/ion. There is another Canon (^) to regulate their Fees, vU. they are to take only fuch as were allowed by the Arch- fcifhop Anno 1597, under pain of Sufpenfion for fix Months, and that if any Controverfie fhould arife concerning their Fees, thefe only fhall be lawful for them to take which the Archbilhop fhall approve under his hand. And by another Canon (Jo) two Tables of all Fees fhall be fet up by the Regifter, one in theConfiftory Court and the other in his Office, which if he neglect, or being once fet up (hall remove them, or hinder any one to fee them, he fhall be fufpendedi Ceo. Car. :■■*>-. # Caactuji. fg) Canon 155- (h) Canton r?i TnuJ EefiDence* 477 (5.) Thus much concerning the Officer; I fliall now men- tion the Canons, concerning a Book which is called a Regi- fter; and firft, by the Injunctions ofEdw. 6. the Paribn and Pari/hioners arc required to keep iuch a Book in the Church to Regifter the Names of the Perfons Married and Buried in the Parifh ; this Book is to be kept in a Cheft provided for that purpofe, and there muft be two Locks and Keys for the Parfon and Churchwardens, and it muft be taken out every Sunday after a Marriage or Burial, in order to Regifter the fame in the prefence of the Churchwardens ; the Perlon who is in fault muft forfeit 3 s. to the ufe of the Poor. The fame things are required by the * Canons of King James, but with a little Addition : That a Parchment Book fly all be provided at the Charge of the Pa- rifh, wherein the day of every Chn fining, Wedding and Burial fb all be Regiftred, fince the time any Law for that purpofe was fir si made, and that was about the 30th of Hen&. at the requeft, and by the means of the Lord Cromwel, and this was now required by the Canon fo far as the ancient Books could be procured, but efpecially fince the beginning of the Queen's Reign ,• That a CheJl fhouldbe provided at the Charge of the Parifh with- three Loch and as many Keys for the Minifier, and each of the Churchwarden:^ fo that neither of them fhould take out the Book but when they were all prefent-, that when a Page is full Written the Minifier and Church- wardens fhall Subscribe their Names, and that the Churchwarden J {hall every Tear in April tranfmit the Names of all Perfons Chrift- ned, Married, or Buried to theBifhop or his Chancellor, and the Days and Month in which it was Subscribed by them, and if either of them wake default he might be cited by the Bifhop or his Chancellor, and proceeded againfi as a contemner of the Canon. Refidi ence. T Shall not infift on any Arguments in point of Confciencc ■*• for Refidcnce,'tis a Duty of which the Clergy are or ought to be judges themfelves ; but I muft lay, that when once they have taken a Perfonal Charge upon tliemielves, and a Charge of fo high a Nature as a Cure of Souls, it cannot be fo welt attended as where the Perion is actually rcfident. Upon the firft creeling Parochial Churches, every Clergy- man was bound to refide on his Living. The Old Saxon Ca- nons * are very ftri6t in it, for how could a Man Read the Prayers of the Church, Preach to the People, Adminifter the t Canon 7?, Sacra- 478 KeGDence* Sacraments in his Church, rcfolve Penitential Cafes, give a good Example to thofc committed to his Care, unlefs he is con- itantly refident amongft them ? • Refidence is likewifc required by the * Canons of our Church, which prohibit Difpenfations to be Granted for holding tm Benefices, but only to Juch who jhall be thought worthy for their Learning, and very able and Jaffcunt to discharge their Duty, that is, Juch who are Mafiers of Arts in one of the XJniverfnies of this Realm, or who is a publick and Efficient Preacher Licenfed; and even in fuch Cafe he mutt give lufticient caution to make his Perfonal Refidence in each of his Benefices, for fome reafbn- able time in the Year, and that they be not above 30 Miles diftant from each other, and fo that he hath an able Preacher lawfully allowed in the Benefice where be doth not refide. But it may be a quettion that fince the very Office of a Mi- nifter requires a Perlonal Refidence, whether a Diipenfation can juttifie him to be abfent from that Charge without fome very good Caufe, as the care of his Health, or fome publick and important bufinefs either for the Church or the Queen ; for tho' by the Canon Law every Minilter is to be refident, and for that purpofe if he is Ghofen to any Office, he hath the King's Writ to Difcharge him, which my Lord Coke tells us is grounded on (a) Scripture, viz,. Nemo militans Deoimpli- cat fe negotiis fecularibus, yet there are fome Exceptions to this Canon, viz* If the Clergyman is in the King's Service he (hall bt Excufed, and this appears by an ancient Writ in the (b) Regijhr, called de non refidentia Clerici Regis, which I thus Tranfcribe. Cum Clerici Noftri ad faciendam in Beneficiisfuis perfonalem re- fidentiam dum in nofiris immorantur obfequiis competli aut alias fu~ per hoc molefiarifett inquietari non debeant, nofq; ac progenitores no- ftri quondam reges Anglia hujufmodi liber t ate & privilegio pro clericis nofiris a tempore quo non extat memoria femper hallenus *tfi famns vobis mandamus quod dileclum Clericum nojlrum J. S. parfonam Ecclefa de H. veflroe Diocefeos qui in cantellaria nofira nofiris jugiter intendit obfequiis ad perfonalem refidentiam in bene- ficio fuo' pred. faciend. dam in iifdem ohjequiis no/iris immoratur nullatenus compellatis & fequi/lrum fi quodinfruttibns ant aliis bo- nis Ecclefue, fu£ pred. ea occafione per vos aut veftros fuerit appofitum fine dilatione relax -ari facialis , Tejk, &c. Agreeable with this Writ is the Statute called (0 Arttculi Cleri, viz,. That Clerks employed about the Exchequer fhall not be Bound to be refident in their Churches ; and that the •Canon 4* , 00 2 Tim. 2, 4. (b) Regifter?8; F.N. B.44 I- (*)Art. CkrE King- ftefiDctice. 479 King and his Anceftors, time out of mind have ufed, that Clerks employed in his Service iliall not be compelled to keep Refidence in their Benefices; and iiich things as iliall bo thought neceflary for the King and Common-wealth oughc not to be prejudicial to the Church ; and my Lord Coke (d) tells us, that this Paragraph ought to be Written in Letters of Gold. The Law allows iome other Excufcs for No n- refidence, as Imprifonment without Fraud, removing into a better Air foe the recovery of his Health ; and by the Statute of 21 Hen. 8. a Scholar Rudying in theUniverfity, the Queen's Chaplains in Ordinary, and any Perion compelled by the Injunction of the Lord Chancellor to appear in any Suit in Equity, (e) and therefore if an Information fhould be brought upon the laid Statute againft a Non-refident, for the forfeiture of 10/. per Month, it mu(t be fe& forth that the Defendant Voluntarily did Abfent himfelf, &c. or 'tis naught. So by the Statute of 25 Hen. 8. cap. 16. the JudgesofthcKing's Bench and Common-Pleas, the Chancellor, and 'the Chief Baron of the Exchequer, and the Queen's Attorney and Soli- citor, may have each of them one Chaplain to be attendant on their Perfons, who may be Non-refident. And by the Statute of 33 Hen.S. cap. 28. the Chancellor of the Dutchy of Lancafter, and Groom of the Stole may have the like, but then they mutt twice in every Year refide on their Benefices for the (pace of 80 Days each time, under the Pe- nalty of 40/. but none of thefe Perfons can qualifie a Man to hold two Livings. My Lord Coke farther informs us, that Cardinal Woolfey was a great Prote&or of Non-refidents, and that foon after his Attainder a Statue (/) was made, which in the Preamble mentions feveral good Effecls of Refidence, viz,, that it would be for the Virtuous encreafe and maintenance of Divine Ser- vice ; that it would advance the Preaching and Teaching of God's Word, by Godly and good Example ; that it would be for the maintenance of Hofpitality, the relief of the Poor, the increafe of Devotion, and the good opinion of the Laity towards the Clergy ; and then by the 17th Paragraph 'tis en- acted, That every Spiritual Perfon promoted to an Archdeaconry, Deanry or DIGNITY in a Cathedral or Collegiate Church, or Be- neficed with a Parfonage orVicarige [hall be perfon ally re fident on his DIGNITT, Prebend or Benefice, and if he toUfullp abfent by the f pace of one Month together , or of Wo Months, at feveral times (d) 2lnft,62;. («) Cro.Eli*. 100. (f) 21 H 8, cap. u, in 480 ^ EefiDettce* in one Tear, he forfeits iol. per Month, to be divided between the Queen and Profecutor. And by the fame (g) Statute the Chaplains of feveral Peers, by being retained in their Service, may obtain Difpeniations to hold two Livings, and in inch Cafe are Excufable for Non- refidence in one, which cannot be, if by the other Paragraph they are punifhable tor being; Abfentfrom one of them, there- fore this Claule mull not be interpreted to bar thole who are qualified by Birth, Degree or Retainer to hold two Livings from that Liberty they have to Abfent themfelves from one, fo as they refide on the other. There are very few Inftancesof Profecutions upon this Sta- tute, (h) which mutt be brought by Information in the Crown Office, but fome there are, vU* .(*') Anno ^\ Elk,, an Infor- mation was brought for the 10/. per Month 5 the Defendant Pleaded that he was Chofen Gofpeller of St. Pad's in London, and that he was refident thereby reafon of that Dignity, and upon Demurrer to this Plea, two Judges were of opinion that it was a Dignity, to Excufe the Defendant from being refident 6n his Benefice. And 'tis to be obferved, that the word Dignity inthisStatute relates only to Dignities of the like, or irfferior nature, to Archdeaconries or Deanries, and therefore Bifhopricks are not comprehended under that Appellation ; but if Bifhops are not refident they may be punifhed by Ecclefiaftical Cen- fures, but not by this Statute; (k) and of this we have a very notable Inftance, for even when the Pope's Supremacy was exalted here, Hen. 3. fent his Mandate to theBifliopof Here- ford to refide on his Bifhoprick, otherwife he would feize his temporalties ; but if he hold any other Dignity m Commendam with his Bifhoprick, then he is comprehended in this Law. And as by theie Statutes, fo by the Canon Law Non-reil- dence is allowed, that is, 'tis not abfolutely forbidden : As for Inftance, 'tis allowed by that Law where the Benefice is an- aiexed toYome Dignity in the Church, and in fuch Cafe there nmft be a Vicaridge Endowed, but the Vicars whofupply the places of thofe Dignified Perfons are not only bound to Per- fonal Refidence, but by a Conftitution of Archbifhop Lang- ton are required to take an Oath to refide on their Vicaridges, and the Reafon why a Vicar is more Itndly obliged to Re- sidence than a Reaor is, becaufe he may depute a Vicar, but one Vicar cannot depute another, and therefore his Oath is to refide on his Vicaridge nifi aliter Difpenfatum fmrit a Diocafano fao. . rS)r?.raeraphn, ('OCro. Car. i«C? (0 Cjg, Eliz. 663. (\) I Inft. 25- UefiDew. 481 By the Canon Law a Mimfter is faid to be refident in that place where he Difcharges his Office, tho' he Lives in another Pariih ; but the Courts at Weftminfter. have a different accep- tation of Refidency, for it hath been a queftion whether the Refidence intended by this Statute mull be in the very Parfb* page H,>ufe, and my Lord Coke (7) tells us, it was reiolved, that tho' the Parfon lives in the fame Parifh, yet I not Jive in the Parfonage Houfe lie is Non-refident, and theRca- ibn is, becaufe one thing intended by the Statute was to pre- vent Dilapidations, which might not be fo well done where a Tenant and not an Owner dwells in theHoufe. JulticeG^, Serjeant Moor, and Mr. Gouldsborough, who Re- port the fame Cafe, all agree that the Court was divided ; but the better opinion was, that if the Parfon is refident in any other Houfe in his Parifli 'tis furncient ; for the Parfonage Houfe might be aliened by a former Parfon, with the confent of the Patron and Ordinary, or Leafed fo as his SuccefTor might not live in it. About 12 Years afterwards there' happened the very like Cafe, (m) and it was objected, that fince the Statute requires the Parfon to be refident on his Benefice, that it mull be in- tended his Parfonage Houfe, becaufe the whole Parifh is properly his Benefice, and therefore in propriety of Speech he cannot be faid to refide on the whole. The Cafe was com- pounded by my Lord Coke, but he continued (till in his former opinion, that the Parfon ought to be refident in his Parfonage Houfe, tho' the Reafons given by his Cotemporaries feem to be of greater weight and Authority. There are lome other Statutes which relate to Refidency, as for Inftance,the Statute of 13 Eliz,. cap. 20. provides, That all Leafes made of any Benefices fhall endure no longer than the LefTor fhall be refident, and ferving his Cure without abfenting above 80 days in one Tear^ and if he {hall lb abfent the Leaf; fhall be Void, and he (hall lofe a Years profit of his Benefice to be diftributed by the Ordinary amongft the Poor, that is, upon complaint made to him, and Sentence given tor this Offence, he may within two Months after fuch Sentence and requ'eft made by the Churchwardens or one them, Sequencer the profits to fome of the Parifhioners, and if the Ordinary fhould ncglecl, then every one of them may retain the Tithes, and the Churchwardens may enter on the Glebe Rents and Duties of the Church, and employ it for the uieof the(«) Poor, till a Sequeftration (hall be made by the Ordinary. (0 6 Rep. 21. Cro.Eliz." jj>o. Mogr. 540. Gouldf! 169, ("») z Brovyn!. 54* in) is Eliz. cap.ir. I \ Baft 48 2 EeSBence* But there is a Provifo, that every Parfon qualified to have two Benefices, may Demife one of them to his Curate only 5 but iuch Leaie is to endure no longer than he is Curate, and not abienting above 40 days in any one Year. By another Statute (0) all Covenants and Contracts made for permitting any Ptrfon to enjoy any Benefices, (hall be as Leafes made thereof ', that is, they ilia.ll be Void within the A6t of 1 3 Eliz,. by the Parfon's abience above 80 days. Now, a Non-refidency within the Statute of 21 H. 8. may not bean abience to avoid a Leafe upon the Statute of 13 EL for if a Parion lives in another Parijli, and not in his Parfo- hage-houfe, which, according to my Lord Cokes opinion is a Non-refidency within the Statute otH. 8. yet 'tis not fo within the Statute of 13 ElU. (p) for if he comes conftantly to his Parifh Church and Officiates there, he can never be fa id to be abfent from his Cure. I (hall conclude this Title with the Obfervation of Father Paul, (cj) in hjs Hillory of the Council ot Trent, that for the fitfi S^ven hundred Years after Chrift, every Minister in ths Weftern Church was refidenton his Living, and that when a contrary ufage crept into the Church, Canons and Decrees were made againli it. That it was the opinion of that Council, that Refidence h a thins; of Divine right to him who hath a Cure of Souls, and if fo, it muft be a great evil for a Clergy-man to take two Benefices, for 'tis impoifible for him to refide on both at the fame time. But notwithstanding this opinion, and all the Canons which have been made againli Non-refidence, fome Argu- ments have been raifed to prove that 'tis only malum quia pro- bibitumfox if it was Evil in its felf,tban noDifpenfation could make it otberwife, and we daily iee that the Law allows Dil- penfations for Pluralities, and by confequence it allows a Man to be Non-refident, It has bsen likewife affirmed with fome colour of Reafon, that the Clergy do not undertake any Cure, but under fuch meafures which are allowed by Law, and that a competency is always fuppcied where Refidence is firictly enjoy ned, ana wheje that cannot be had by one Benefice, the Church hath power to mitigate the Severity of the Canons, and toDifpenie with the taking more than one. That the Clergy do not fubfift now as formerly, whenthofe Canons were made, for then Celibacy was enjoy ned, but now* Oo) i4F.Ii2.cap. n, (/> 1 Bul&. n:. (9)fo.4J)fc [Marriage Marriage is allowed them by Law, ib that a Living which is allowed a competency for a Single Perfbn at that time will notbefufficientto maintain a Family now, and that there can be no inconvenicn. v in Pluralities, becaufe the Bithop is to take care that the Benefices where the Parfon himillf can- not be refident fhould bo f upplied with able Curates. But after all, fince it was Originally intended by thofe Ca- nons, that a Minilter fhould not undertake more than he is able to perform, and fince the Cure of Souls is perfonally committed to him by the Bifriop, I muft leave it to the Con- fciences of thole who are concerned, whether any Diipenlati- on can be good in iuch Cafe. Resignation, TTHIS is the yielding up a Benefice into the Hands of the *- Ordinary ; 'tis called Renunciation by the Canonifts, and 'tis the lame thins; with a Surrender at Common Law, but ufage hath retrained this word, and made it applicable only to a Spiritual Living. And therefore I cannot apprehend why the word Refigno 0) fhould be thought improper in the Latin form of a Resig- nation, certainly it mult be a meer nicety of the Judges Anno 1 2 Elk,, to hold it fo, and to affirm that the formal words are renunciocedo & dimitto, for I find the word Refvgno almoft in all the forms of Refignation, (f) 'tis fo in Fairchild and Gayres Cafe, where the words are conccdo & Reftgno, 'tis fo in the Regiiier, CO which being one of the moft ancient Books in the Law, and of great Authority, I fhall tranferibe the form as Jtis there. In Dei nomine Amen, Ego J. S. Retlor & Incumbent Ecclefa Parochialis de H. in Com. S. & Diocef. CicejhU, volens.& ex certis saufis & con/iderationibus, veris juftis & legitimis me in bac parte fpecialiter moventibus, ab onere cur a & regimine ditta meet Retlo- rid habituri non vel in mem coaotus nee dolo malo ai idem indutlus nic aliqua finijha macbinatione motus,fed ex cert a fcientia ammo deli- berate & Jpontanea voluntate mds pure fimplkiter G* abfolute Re- (r) Dyer 2*4* Sid. 38$. (/) 2 Cro. 63. (t) Fv>. !»*.*. 1 i 2 4§4 JRefiguatioit. figno ac re & verho vacmmiimitto^jure qnoque titulo & poffefjlone mcis in eadem Recloriafive Parochiali EcdefiaunA cumjuisjuribus membris & pertinentiis univcrfis pr^habitis & mihi hactenus con- cfj]is omnibus & [ihgulis renuntto cofdemq-, cedo & ab iifdem recc- do tQtal iter 07* exprcjje in his Script is. In cujus rei Te/limonium Nomen & Sigillum rheum his prtjentibus Appofii 5 die Aprilis, Anno, &c. SignM, & ttteftat. nobis pra/entibus & atteftantibw. That which I (hall obfervc upon this Latin form is, that a Refignation mutt be made to the Ordinary ;(>) 'tis true, it may be made before a Publick Notary, but it mutt be directed to the Bifhop and certified to him, and if 'tis in the Cafe of a Piebend it makes no alteration of the Law, for it muft be re- figned to the Ordinary, and not to the Queen, becaufe if a common Perfon is Patron thereof, an injury may accrew to him for want of notice to the Refignation, which the Queen is bound to give. And generally where-ever a Bifhop hath right to Admit, be hath likewife a right to take a Refignation, (x) therefore Donatives are not refigned to him, but to the Patron, becaufe he doth not admit to luch a Cure ; and Deanries (y) in the Queens Gift are not refigned to him, but to the Queen. In the next place I (hall obferve that it mutt be made to a Su- pmov^fponte pure & abfilute, and therefore if 'tis made upon condition that another fhould be Admitted to Cjccfcatige. the -Benefice tis Void, unlefs it is in Cafes of Ex- change ; for if two Clergy men would Exchange Benefices, each of them mutt reftgn to the proper Bifhop, and the refpeclive Patrons muttprefent them again to each Bene- fit, which, if they refufe, or the Ordinary will not Admit them reipe. lively, then the Exchange is not Executed, and in luch Cafe either Clerk may return to his former Living, tho' one of them (hou)d be Admitted, Inttituted and Induc-ted to the Benefice of the other, becaufe in Cafes of Exchange (aj the Law doth annex a Condition to the Refignation, viz„ that it be fully executed on both fides, and not only fo, but the Con- dition is expreffed in the very form of the Exchange it ielf. In Dei nomine Amen, Ego T. S. Retlor Ecclefia de H. Diocejeos CiceHridt volens ipfam Ecclefiam me Am cam Ecciefia (V) de B. ditl£ CiceftrU Diocefeos cuius Rctlor Exijht W. C. cents justis &legiti~ mis cAufis fine dob & fraude canonice permutare ipfam Ecclefiam me Am ex caufa permutationis hujufmodi & non aliomodo in /act as () 2 Roll. Abr. 353. Noy 147. (*) 2 Cro. 63. (y) Flowd-398. (*.) 1 Ro» R'.p .137. Owin 12. 0) Fiz. Exchange. Pliw jq. 0 Regifter 306. b. manm l&eSpatt'om 48S manm venerabih's in Chrifto patris Dom. Jobannis QceJlrU Epiji rcjigno fupplicans humiliter & devote ut pr<&fat. J. S. mJHfmodi cattja permutationis ipfam refignationem fie faclam & non miter ve- litis admittcre & negotiant permutationis hujnfmodi quatenw ad vos attinet fideliter expedire, C? prote/lor expreffe in hie Scriptis quod fi ditla permuta'io debitttm non fortiatur effellum quod hujuf- modi wen reftgnatio pred.pro nulla pmitta habeatur. And in the fame Book there is a Form of a Protection of returning again to his old Benefice in cafe the Exchange is not executed, and it was my Lord Hobens Opinion in {c) Cok and Glovers Cafe, that each Party might return to his pro- per Benefice where the Exchange was not comple.it. By this ancient Form it appears that the Exchange mutt be made jujlis & legxttimu Caufis; and agreeable with this is that Paragraph in the Statute againll (A) Simony, viz,. That if any Incumbent with Cure, &c. [hall corruptly refignor exchange his Benefice, or fhall corruptly take any Benefit for refignbig, &c. loth the Giver and Taker fhall forfeit double the value of the Bene- fice to be divided between the Queen and the Profecutor, After a Refignationismade, 'tis in the power of the Ordi- nary whether he will accept it or not, for fmce the Law hath made him the proper Perfon to whom it ought to be made, it hathlikewile traded him with judging whether he fhall ac- cept or refufe it. Tis agreed that a Refignation (e) is not good unlcfs the Or d\na.ry accepts it, but this mult, be underwood of a Benefice with Cure, &c. for in fuch cafe a Refignation is not good \\\\- lefs the Bifhop accepts it, becaule it may be prejudicial to many without foch acceptance, (/) but where there is no Cure 'tis good without acceptance. La(il}r,~ if au Action of Debt ftiould be brought on a Bond (g) given to the Patron, conditioned to rcfign a Benefice to the Ordinary of the Diocefs, ib that the fame may be void, and that it- may be lawful for him to prefent again, if the Defendant pleads that in forma juris refignavit, the Rectory to W* then, and now Biihop of D. Ordinary of the place, which Refignation he accepted, this fhall be .tried by a Jury and not by a Certificate from the Bifhop. 0)H»b.iss, (d) 3 ^ Eiiz, cap. 6. (0 2 Cro. 64. ip8. (/) Noy 147. («) Sid, 177, J i 3| SqctamwI 486 Sacrament. T"1 HIS is the moft folemn Acl of Worfhip amongft us ; it x was inftituted by our Saviour himfelf, and therefore 'tis not like oihcr Rites by which we exprefs our Duty to God, for thole may be enjoined by the Church. It confiftsin matter and form, that is, there muft be materi- al things dandified by proper words, by; which thoie things are determined to that end, and in receiving it there are fede- ral Acts df Religion both inrefpecl to God and ourfelves,z/i*. on Gvd's partbv a fecret Bleffing derived from him to us, and on our p^rt by Promises which unite us to hisChurch,and by this means Divine Grace is conveyed to us. The learned Bifhop of S arum tells us, that this part of Wor- ship hath been more corrupted than any other, which was chiefly cccafioned by thefe words, viz,. This is my Body, and that m every thing elfe the Inftitution was both plain and eafie, but by thoie words the People were taught to believe that Chrift was corporally prefent in the Sacrament, and therefore the Priefts did magnifie it with all external Pomp and Shew, for the VefTel in which it was put, and the Gar- ments in which he officiated were Crnfecrated and anointed with great Solemnity and Devotion,, then the Bread was lifted up and Worshipped by the People, the Prieft carrying it under a very rich Canopy. The words of Consecration were always fpoken by the Prieft, but not in the prefence or hearing of the People, which (as that learned Prelate rightly obferves) was very iuitable to The invifible change made of the Elements of Bread and Water, viz,, for as the one could not befeen, fo the other was not to be heard. And not only fo, but fome miraculous Stories were inven- ted and offered to the People as reafons why the words fhould be kept fecret from them, viz,, becaufe certain Shepherds having by chance heard a Prieft confecrating the Wafer, did themfelvcs repeat the words over their own Bread, and im- mediately it turned into Flefb. The ancient Fathers of the Church had no notion of fuch a miraculous Tranfubftantion, and as foon as ever it came to be extolled by the Priefts, there were feveral learned Men in the ninth Century who wrote againft it ; and 'tis no wonder that the Priefts were fo induftrious to propagate this Podrine, becaufe the People muft neceflarily have a very great reverence for an Order ef Men whofe Character quali- - ficd - ' \ Sacrament* 487 fied them for fuch^Itiifterious Performances, fo that in tl.e eleventh and twelfth Centuries it came to be generally be- lieved. . For the fir ft 300 Years after this ftrange Doctrine was re- ceived, it was ufual toConkcratc a whole Loaf, which im- mediately turned into the complcat Body of Chnft, ib that when it was diftributed to the People, they were made to believe that one had a Toe, another a Finger, and .1 third an Eye or Tooth, and to iupport their Belie! in (0 odd a Con- trivance, fome Miracles were pretended to be done by every part of the Body. But this being thought a very undue and indecent way of eating the Body of our Saviour, the Scho )lroen who had al- ways fome nice inventions to pleafe the People, inftructcd fhem to believe that the whole Body was ;". every part of the confecrated Bread, and that upon dividing it a new Body was immediately ieparated from the 01)21 parts. Now if the Body fhould not happen to be new, 'tis cer- tain the invention was ib, and contrary to what had been the received Opinion for many Y ,-ars, 10 'hat the Miracles which were pretended to be d^ne by-thofeold parts of Chrift's Body were become ufelefs, and therefore there was a neceffity of contriving new ones to fuppoft this new Opinion ; and as that great Prelate farther informs us, n (lead of a Loaf they confecrated a Wafer as more (uitabl< to this new Doclrine, that it might not be contradicted too much by our Senfes ; and left the fenfible tffedts ot Wine might difpofe the People to believe that notwithstanding the Confcration it remained ib (till, therefore the Cup was denied to the Laiety. Anno 2 Ed. 6. thefe things were thought proper to be re- formed, and for that purpofe a new Office for the Commu- nion was (It forth, which began with an Exhortation before the receiving it, and it was ilmoft the fame with what is ufed now, only after that part of the Exhortation wherein we are advifed to confefi our Sins to Go J, 'tis aided, That thofe who appmz -./ auricular Confeffion to a, Priefi fhould not cen- fare thefe who ,e,'rc fatisfied with this general ConfejfioQ to God. Then after the Prieft had r^ceiv^d he was to return to the People, and to read another Exhortation to them, which we now ufe with a very little variation in all other G.rcumftan- ces; only when the Bread was to be distributed the Priefi: pro- nounced thefe words, vvo. The Body of otir Lord, &c. prefer ve thy Body, &c. but when the Cup was given the words were, viz,. The Blood of our Lord, &c. prefer ve thy Soul, &c, as if a greater value was to be fet on the Cup than on the Bread, for I \ 4 ouc 4^8 ©actament* one was to prefcrve the Body, but the other the Soul, but this was afterwards altered by Archbifhcp Cranmer, who appoin- ted that in both Paragraphs the words fhould hzpreferve thy Body and Soul, " &c. As to the Porture in receiving the Sacrament, 'tis probable that at the firft inftitution it was at a Table, the Communi- cants lying on one fide ; but that can be no Argument why it iliCHiid'be fo novy, for firice the Eucharjft came in the room of the PalTover, and fine? that was altered from its firft indi- tution by Mofes, to which alteration our Saviour himlelf com- plied, therefore this may be likewile altered without any Crime. The Jews were to eat the Pafchal Lamb (landing with their Loin? girt, and with Staves in their Hands, and Shews on their Feet, which was a poiiure fuitable to Travellers as they were, but as foon as they came out of die Wildernefs to the LandofPromife, that poiiure was laid afide, and then they eat the Lamb at the Table, and in fuch a poiiure as they eat at other times. Our Saviour conformed to this, and he being now exalted in his Throne, it may therefore be more proper to receive the JSacramcnt with greater figns of outward refpect than when he was in a State of Humiliation, in which State he was at the very firri Inliitudon of this Ordinance. But (race the receiving the Sacrament is now become a le- gal Qualification to entitle certain Perfons to have and enjoy feveral Offices, I iliall therefore mention thofeLaws by which this is required. By the Statute of 25 Car. 2. cap. 2. All Perfons a* well Peers at ethers, who /ball have any Office either Civil or Military, or who /ball receive any Salary by Patent from the Queen, or have any command or place in Truft under her, or fhalVbe of the Houfhold, fhall within three Months after their admittances in, or receiving ' their Authority or Employment, receive the Sacrament in feme Public}. Church upon fame Sunday, and deliver a Certificate thereof the next Term after their admittance either in the Court of Queens fienchy or at the Quarter Sejjions where they re fide, under the hands of the Minifier and Churchwardens, and prove it by credible Wit- neffes upon Oath. The Perfons negleU'mg are difabled to hold their Offices, and. they are made void by the Act itfelf; and if they execute the fame afterwards upon a conviclion either on an Information or Inditlment in the Courts at Weftminfter, or at the Affiles, they floall not fo Plaintiffs in any Suit at Law or in Equity, or Guardians to a Chil({> pr Executor or Admini'Iratcr, or capable of a Lepacy or Dad of Gift ©actament. 489 Gift, or bear any Office, and /ball forfeit 500 1. to the Prvfc tutor to be recovered by Action vf Debt, Bill, PItint or Information in the Courts at Wettminfter. This Statute being fa penal, the Miniller is obliged by Law to Adminifler the Sacrament in both kinds; but then by the Rubrick there mult be three at leait to Communicate, and he xnult not without Lawful Caufe deny it to any who (hall de- voutly and humbly delire it. But (luce there are iome Lawful Caufes of .refufal, there- fore 'tis necelTary that the Miniiier ihould have convenient time to enquire whether the Perfpns are fie to be partakers of this Ordinance, and for that purpofe they are enjoined by the Rubrick to fignifie their Names to the Curaie at ieaft a day before 'tis Adminittred. By the Canon (a) and Rubrick it appears what thofe Law- ful Caufes are, viz,. Thofe who live in any known Sin with- out Repentance, thofe who malicioufiy contend with their Neighbours (hall not be admitted to the Communion before they. are reconciled. By another Canon (b) 'tis not to be Adminiftred but to fuch who Kneel, nor to any who refufe to be prefent at the Prayers of the Church, and this under pain of Sufpeniion, nor to any who are depravers of the Common Prayer, or of any thing contained in the Articles of our Religion, unlefs they fhall (hew their Repentance, and promife before the Minifter and Churchwardens either in writing or by word to do fo no more. _ So by the Rubrick none is to be admitted to the Sacrament < till they are actually Confirmed or ready anddefirousfotobe, nor if they have done any wrong to their Neighbours, fo that the Congregation are offended at it, nor tbofe who live obfti- nately in Malice or Hatred, nor to any * Stranger,- for a Minilfer is not obliged to give it to any but to thofe of his ownParifh. But if a Parfon will refufe to Adminifter the Sacrament without any juft Caufe, an Action on the Cafe lies againfl him, becaufe a Man may have a Temporal lofs by fuch re- fufal. In the next place I (hall confidcr how of- Jpoto often to be ten in a Year the Parifhioners are required atotmuturco, to receive it. The Primitive Chriftians made it a con- frant part of their Worfhip every Week, fo that it being a — ~T~ T I 1 (O Canon 26. (t>) Canon 2 7. • Canon 2 8. cuftomary 49^ Sacrament; cuftomary tiling, fome Perfons pretending to greater ftridt- aiefs were of Opinion, that by frequent communicating, they did not receive it with that due Care and Reverence as they ought, but only in conformity to the Orders of the Church, and therefore they thought it better to abrtain for fome time, that they might not come as Formalifts, but with a due tem- per of Mind, and the better prepared to receive it, and fo by degrees it came from a frequent and conftant ufe to a total The late Bi(hop of Worccftcr tells us, that our Reformers look'd on this difufe as a Corruption crept into the Church, and therefore they were of Opinion, that it ought once more to be brought up to the Primitive Practice, but that unreafonable Scruples in iome Perfons, and milapprehenfions in others, and a general indifterency in matters of Religion had put a flop to the reviving this ancient part of Devotion. However, they enjoined that it fhould be received by all People three times in the Year, of which Eafler was to be one; this is required by the Kubrick which is confirmed by Acl of Parliament, and 'tis agreeable with fome ancient Conftituti- ons made for that very purpofe. We have fome inftances in our Books (c) of Profecutions for not receiving the Sacrament, T^Anno iyCar.2. the Church- wardens prefented a Man for this negle6t, and upon that Pre- ferment there was a Libel and he was Excommunicated in the Archdeacons Court, and tho' he fuggefted that he received it elfewhere tho' not in his own Parifh, which he likewife pleaded in the Spiritual Court where they refufed that Plea, yet the Courts at Weftmin/ler would not grant a Prohibition, becaufe both the matter of the Libel and Pka were of Eccle- fiaftical Cognizance, and when they refufed the Plea the Par- ty ought to Appeal. It muft be offered freely in the publick mhm it is to bz Church, and not in private Houfes ; but ^DminittreD* [f a f,^ perfon is not able to come to his Parifh Church, he muft acquaint the Cu- rate with it, and that two more will communicate with him, and in fuch cafe the Rubricl doth not prohibit but enjoins the Miniftcr to give it in the fick Man's Houfe. This is likewife allowed by the Canon (d) where the Pa- rifhioneir is impotent or not able to go to Church, or very dan- &croufly §ick ; but if adminiftred in a private Houfe to a ferfon who is well and able to go to Church, in fuch cafe .; Hardres 404. CO Car.cn ytc ©actilcge* 49 * tbe Minifter for the firft Offence is to be Sufpcnded, and for the next he fhall be Excommunicated. And becaufe thisfolemn Ordinance (c) (hould always be had in due Reverence the Law hath appointed, that he who depraves it or doth any thing in contempt of it (hall be com- mitted by three Tufticesof Peace, who are to take the Exami- nation of two WitnefTesto prove the Fael on Oath, and bind them in the penalty of 5 /. apiece to appear at the next Sci- fjors and give Evidence, and the Offender being found guilty is to be fined. The Profccution mud be within three Months after the Offence. Sacrilege, TT HIS is the dealing fomething out of a Publick and Sa- *■" cred Place. It may be committed three ways as the Ca- nonifts tell us, that is, either in refpecl to Perfons, Places or Things. Sacrilege againft Perfons is the laying violent hands en thofe who in a peculiar manner are fet apart for the Worihip and Service of God, this is accounted a Violation of their Privileges and Immunities, but I (hall not treat of it in this Senfe, but only as it relates to places and things. As to places, in this refpedt the Church in conftruclion of Law is the Manfjon Houie of God, and therefore 'tis Burglary to break it open and enter it in the Night time * with an in- to deal. This feems to be the blacked Offence by which the Church is violated, and therefore it was puniihed with the greatell Severity, Amongft the Heathens all Offenders of this nature were put to Death, and they were not fo much as allowed the common Humanity of Burial, and all their Goods were to be confifcated. But it was not punifhed with Death upon the raft intro- ducing Chriftianity here ; for he who robbed the Church was to reftore nine times the value of the things taken, and if not able to pay it, then he was to undergo a Corporal Puniihment by Stripes. Tis true, one of our Hiftorians mentions that King Athel- flan (/) caufed fome Thieves who had robbed St. Edmftnds Church in Suffolk to be hanged; but in the lame Book he tells (*) 1 Ed. 6. cap: 1. • Dyer ?5>« COMalmf. dc geftjs pontificun. Lib. r. LS H 49 % ©acrtlege* us they were held by fome invihble Power that they could not carry away what they had (loin. This Monkiih Whimfie may occafion fome Perfcns to fuf- pe£t the truth of the whole Story, and the rather becaufe there were no Laws made in his time relating to Ecclefiaftical Mat- terSjbut they were in molt things only a Repetition or rather a Confirmation of iuch which were made by his Grandfather King Alfred, in whole Reign thepunifhment of Sacrilege was only pecuniary, that is, the Offender was to reftore the value of the thing taken, and was likewifc to pay the value of his Head, which was about 40/. but it was an aggravation of the FaCt to commit Sacrikge on a Sunday, for in fuch cafe he was not only to pay the value of his Head, but his Hand with which he committed the Fait was to be cut off: but this he might redeem at the lame price his Head was valued. And many Years afterwards the punifhment was by Ex- communication, of which we have a remarkable instance, An. 38 H. 3. when the King himfelf (landing with his Hand on his Iheaft, and the whole Houfe of Peers with lighted Torches in their Hands, pronounced thofe Perfons Excom- municated,' who^malicioufly deprived the Church of their Right, &c. then they threw down their Torches extinguished and fmoaking, and all of them pronounced thefe words, viz. 00 let thofe who go againjl thk Church be extinguifhed in Hell. ;« Qur lAnceflors were fo confident,- that a Sacrilegious Per- fon could not elcape the Judgment of God, that they deliver- ed him over to Satan, or as they ufually laid they curled him with Belly Book and Candle; that is, after the Curfe pronoun- ced^, which was done four times in a Year, they fajd^,then they (hut the Book, put out the Candle, and ringed the Bell. But now if .there is no adual Force, and Goods of the Church are taken from thence, in Rich cale^the Churchwar- dens may have an Action' at Common Law againtt.the Of- fender, andfhall recover Damages, or they may Libel in the Spiritual Court (>) again life im. pro /4/^e an\m& which is the moft proper remedy, and there he may recover the things in Sfecie. , , .•; ; Seuti in the Church.: SINCE many Controverfies have happened concerning Seats. (1.) In the Body of the Church. (2.)lnlilef, (3.) In. Chancel?,, (*) H • ©eats fit tfie dfjutcfj. 493 I (liall now mention what the Law is as to thefe particu- lars. (1.) As to Seats in the Body of the Church, the Freehofcl of the Soil is in the Incumbent, and the Seats are fixed to the Freehold ; yet becaufe the Church it (elf is Dedicated to the Ser- vice of God, and the Scats are Built that the People may more conveniently attend Divine Service, therefore where any con- tention is about a Seat in the Body of the Church, upon coin- plaint made to the Ordinary* he may decide the controverfie by placing that Perfon in it who he thinks fit, and this power is conferred upon him by Law, becaufe he who hath the gene- ral Cure of Souls within his Diocels, is prefumed to have a due regard to the qualities of the contending Parties, and to give precedence to him who ought to have it. But where there is no Contention, and the Ordinary doth not interpofe becaufe there is no Complaint, there the Parfon and Churchwardens have power to place theParifhioncrsin Seats; and in fome places the Church wardens alone have that power by Cutfom, as in London. If a Seat is Built in the Body of the Church, without the co n fen t of the Bifhop, the Churchwardens may .pull it down, becaufe it was fee up by a private Perfon without the Liceiife of the Ordinary; but it hath been held, that if in removing fucri Seat they cut the Timber or break it, (a) an Aclion of Tref- pafs lies again ft them. This, like many other Cafes Reported by Mr. Noyy is not Law ; for the Freehold of the Church being in the Ineumbent, when the Perfon hath fixed a Seat to it, 'tis then become par- cel of his Freehold, and confequently the Right is in him, fo that the breaking the Timber could not be prejudicial to the other, becaufe he had no legal Right to the Materials after they were fixed to the Freehold. And becaufe Scats in the Body of the Church are to be dif- pofedbythe Parfon and Churchwardens, (/?) therefore it was formerly held that a Man cannot prefcribe for a Seat there ; and yet he might prclcribe for the upper part of a (c) Seat there. But now the Law is fettled as to this Ma tier, triz* that one may prefcribe for a (d) Seat in the Body of the Church, fetting forth that he is feized of an ancient Houfe, &c. and that he and all thofe whofe Edate he hat!) therein, hate, time out of mind ufed, and had a Seat in Uie Body of the Church for themfelves and their Families, as belonging to the faid Houfe, (j)Noyio8. (i>) Moor 278, (') NoyJjB. Lauh.jx6. Palm 4*4. (<*J 1 2 Rep1. 105. Nov 129, 1 jo. (Oard 494 ©cat0 (n tlje CljurcS. 0) and that they repaired the faid Seat ; and the reafon why * he muft allcdgc that he repaired it is, becaule the Freehold be- ing in the Parfon, there muftbefornefpecialCaufe fhewed for iuch a Prefcription ; but as to this matter the Court diftin- guimed between an Action on the Cafe brought againft a (f) Difturbcr, and a fuggeftion for a Prohibition ; for in the firft Cafe you need not alledge that you repair, becaufe the Action rs brought againft a wrong doer ; but upon a fuggeftton for a prohibition it muft be alledged that you repair, becaufe other- wife you (hall not divett the Ordinary of that right which properly belongs to htm. If an Aclion on the Cafe is brought againft the Difturber^ the Plaintiff will recover Damages if the Verdict is found for him; 'tis true, he may Libel iu the Spiritual Court, and pre- scribe there for a Seat, &c. but if the prefcription is denied a prohibition will be granted ; if 'tis not denied then that Court may proceed to Sentence, which, if it happen to be againft the prefcription, infuch Cafe alfo a prohibition will lie, be- caufe the Suit being upon a prefcription, the proceedings in it were coram nonjutice in that Court, but this feems unreafon- able, (g) for it can be only to diicharge the Perfon of the Colls which he ought to pay. _ _ As to Seats in Iiles of Churches, the 3({e of trjfc j avv \Sj that if a Man hath a Houfe in a Cf)urt-l> Parifh, and a Seat in thelQe of the Church which he hath repaired at his own Charge, he (hall not be diipoiTefled by theBifhop ; if he fhould, he may have a Pro- hibition (4) becaufe it fliall be intended to be Built by his Anceftors, with the confentof Parfon, Patron and Ordinary, and appropriated by them to his and their ufe, and if he is difturbed by any other Perfon in fitting there, he may have an Aftion on the Cafe againft him, but then he muft prove that h* paired it, (i) and fo it was adjudged between Dawtree and De> (k) for Seats in a little Chapel in the North part of the Chancel of Petworth in Sujfex, for tho* no Man can tell the true rcalon of Preicriptions, yet fome probable reafon muft be alledged to gain fuch a peculiar right, and none is more probable than repairing it. '• ■' CDancd.1 As to the Chancel, the Ordinary hath no Au- thority to place any one there, for that is the Freehold of the Reftor, and h is the Church ; but he Repairs the one but not («) 2 Roll. Abr. 288. Hob 69. Sid. 20*' Raym $2. Cfti*£ J*- (>) Her. 94. (h) 12 Rep. 104. Godb. 200. 2 Cro. 366. CO Sid. 8*>e 20t. (O 2 Crd. 604. Bridgm.8. Palm* 46. the Sequeffcatiotn 49? the other, and Vis for this reafon that an Impropriator hath the chief Seat in the Chancel. But yet a Man may prefcribe to have a (/) Seat here, as be- longing to an ancient Meffuage. Sequcjlration. HT HIS is a feparating the thing in controverfie from the •*■ Pofleflion of the contending Parties ; as for Inftance, when a Spoliation is brought to try which of them is rightful Parlbn *tis ufual for the Judge at the Petition of either of them (let- ting forth that oppofition may bs made in collecting the Pro- fits) to decree that they fhall be Sequenced, and to order the Churchwardens to collect them, and this mult be publifhed in the Church, and they are to give Bond not only to collect but to keep the,fame for the ufe of him who fhall be found to have the right, and to account to him, and the Judge ufu- ally appoints fome Minifter to fupply the Cure in the mean time, and appoints the Sequeffrators to allow a certain reward to that Minifies After the Suit is determined, the Sequestrators are to deliver the Profits which they have Collected to him who hath the right, and this they muftdo either in Specie or the Value, if Sold ; if they refute they may be compelled by the EcclefiafH- cal Court, and if they delay to come to an account the Judge may aflign the Bond to the Party grieved, with a Letter o£ Attorney to Sue for the Penalty. But Sequeftrations may be made in feveral other Cafes, as for not repairing the Church orParibnage Houfe, if the Incum- bent neglects, being once admonifhed to doit, then fome pare ©f the profits of his Living may be Sequenced for that purpofe * but it hath been a Queftion whether the Tithes of an Impropri- ator may be Sequenced to repair the Chancel ; 'tis certain they might whilhVthey were in the Hands of the Monks, but being now made a Lay-Fee by a particular Aft of Parliament, the Spiritual Court hath no Jurifdiclion in that matter, but the ufual courfe in fucb cafes is by Citation, and in cafe of Con- tumacy to proceed to Excommunication. Sometimes a Benefice is Sequenced by virtue of fome Procefs out of the Courts at Wejlminfter, and this is where a Judgment is obtained againft a Clergy-man, and upon a Scire Facias directed to the Sheriff to Levy the Debt and Damages, he re- turns, that the Defendant is Clericm beneficiatfis non babens Lai- a — — ■ — ■ I' ii n i mi — ■ i ■ i i ■ ii. ■■ then another BerlFacutf is directed to the Biihop to Levy the fame de bonis Ecclefiafticis, and by virtue thereof the Tithes will be Sequeftred. But the molt ufual occafion of a Sequeltration is, upon the Vacancy of a Benefice, for during that time the profits of the Church are in Abeyance, and are therefore to be received by the Churchwardens, by the appointment of theBifhop, under the Seal of the Court, and this is to provide for the Cure dur- ing the Vacancy. But they cannot bring an AcYionin their own name for the Tithes, therefore the proper remedy to recover them is by Libel in the Spiritual Court. Sidefmen. TT was ufual for Bi (hops in their Vifitations, to Summon •*- fome credible Perions out of every Parifh, whom they ex- amined on Oath concerning the condition of the Church, and other Affairs relating to it. Afterwards thefe Perions became landing Officers in fevc- ral places, efpeciatly in great Cities, and when Perfonal Vi- fitations were a little Diiufed, and when it became a cuftom for the Parifliioncrs to repair the Body of the Church,, which began about the 15th Century, theie Officers were ftilJ more neceiTary, and then they were called Testes Synodalcs or jura- tores Synodi, fome called them Synods-men, and now they are corruptly called Sidefmen. They are chofen every Year according to the cuftom of the Place, and their bufinefs is to aflilt the Churchwardens in en- quiring into things relating to the Church, and making Pre- fentments of fuch matters which are puniflhable by the Eccle- Gafiical Laws. Syrnotiy. 'THIS is a name of a Reproach which the Canonists have A fixed on all Contracts and Agreements for Gain, in difpofing or obtaining any Benefice or Ecclefiattical prona- tion. The Schoolmen, and my Lord Coke from them, derive the word from Symon Magus, but I cannot imagine for what rea- fon, unlefs every thing of a Spiritual Nature may be called the immediate Gift of the HoIyGhoft, for that was what he de- figncd to purchaferf gjlmon^ 497 I know the Bifhop of Worce/ter's opinion was, that the right of difcharging a Spiritual Truit, and the right of enjoying the Profits which are. let a-part for fuch a Spiritual ule, .do al- ways go together ; but can any one infer from thence, that he who purchafeth thofe Temporal Profits, doth therefore pur- chafe that Spiritual Trutt, and fo refemble it to the Gate ojf Simon Magus. His Sins were Hypocrifie and Ambition; for being a Sor- cerer himfelf, and having done fome wonderful things 'mSa- njaria, by the help of the Devil, he plainly faw, that in Con- verting the People of that City from Heathenifm, God gave more power to Philip than the Devil gave to him, and there- fore he believed and was Baptized, not for any Zeal which he had for Religion, but meerly out of an Hypocritical dehgn to be admitted into the Church, that he might be entitulcd to that Power which was given to the Apoftles ; for having feen what extraordinary Gifts were conferred by them, only by iinpofition of their Hands on thofe who were defigned for the Miniftry, he defired to purchafethe like power, that is, to con- fer the immediate Gifts of the Holy Ghoft on whom he fhould lay his Hands ; not that he intended the glory of God by it, but that he might be in greater efteem amongft the People than wbilfr he was a Sorcerer. Hildebrand, who was the worft Pope, made a fevere Decree againft Offenders of this nature, viz,. That both the Buyers and Sellers of any Ecclefiaftical Livings, and all thofe con- tenting to it, fhould be Damned, with Simon Magus. Pope Gelafms was not altogether fo fevere, for he allowed the Offender to Repent, but if* he would not, then he was to be anathematis mucrone perfojfiis. The Churchmen in thofe days did not only make Canons againft Simony, but ftrange and ridiculous Stories were in- vented to frighten Men from it ; fuch was that Story of a Clergyman, who gave the Emperor's Son a Silver Pipe to make him a Bifhop when he fhould be Emperor himfelf, which hi did; but being foon afterwards afrYidted with Sicknefs, there was a Faff appointed for three days together for the recovery of his Health; but the poor Emperor was all that while a~ mongft the Devils, who Darted Flames into his Mouth thro* a Pipe; but being Recovered he Degraded the Bifhop whom'. Fie had promoted by Simony ; and this punifhment, with his Repentance, was an atonement for that Offence. I muft confefs,. as a Silver Whittle was only a Bribe for a Child, fo tne Story is fit to be impofed on n» other. Vi: . 49s Sfmonp. Under this Title I (hall Treat of three things : (i.) What Simony was before the Statute, and what Con- tracts amount to it fince. (2.) The punifhment of the Patron. (3.) The punifliment of the Clerk thus prefented. As to the firft of thefe Particulars the Canonitts tell us, that every Agreement relating to B'lyingor Selling Benefices, is turpi Lucrum, which brings turpe Commercium into the Church. That fuch Contracts have been condemned by feve- ral Councils, and fevere Canons have been made both againft the Patron and his Clerk; that Simony is voluntas five deftderu-' urn emendi vel vendendi jpiritualia vel fpiritualibus adhtrentia, but certainly this is contrary to our Law ; for mental Simony is not punifhable either by the Common or Statute Law, it rauft be real Simony, either by actual payment of Money, or a contract to Pay it. Now qmlihet contractus ex turpi caufa is odious in the fight ..of the Law ; and tho' Simony is fuch a (a) Contract, yet it was not void for that reafon, before the Statute 31 Etiz*\ tho* *tis fince. Neither my Lord Cole or Hobert mention what Simony was at Common Law ; one fays 'tis vox Ecclefiaftica, and in Mac- Idler and Toderkh Cafe (b) it was objected, that the Common Law did not take any notice of it, for that was a meer Eccle- fiaftical Oftence ; but Juttice Croke who Reports this Cafe tells us, this was denied by the Court ; 'tis Reported likewife by Juftice Jones, but he isfilent as to this particular. And becaufe the Common Lawyers have not yet declared what Simony is, therefore a Learned Prelate was of opinion, that the Canon Law, notwithstanding the Statute, muft ftill be the Rule and Meafure by which Simony is to be determi- ned, and the rather, becaufe he tells us, 'tis not fo much as mentioned in the (0 Statute, for if it had, the Judges of the Common Law (d) would then have fufficient reaion to de- clare what it is. One would imagine that this great Prelate took this Ob- fervation from Mr. Attorney Noy, (e) who affirms the fame thing in his Report cflVmchcomb's Cafe. But the word Simony is not only mentioned in the Statute, but 'tis there explained what is meant by it, viz,. That 'tis 4 Corruption in Presentations, Collations and Donations , of and to Be- nefices, (f) which laft Paragraph that Bifhop himlelf in ano- ther place confelTes to be an explanation what Simony is ; (a) 3 Inft. 1 si. (b) Cro. Car.361. (c) E«tef- Cafe*, 379, 293,m- W Idem 29 3t (ONoy2j, (f) Ecsief, Cafes 59, ftfmcmp; 499 and yet he would have the Canon Law to be the Rule to de- termine it. I admit it was fo before the making this Statute, and that it was then a meer Spiritual Offence, of which the Common Law took no notice in the abftradted notion and fyife of the word j and fo it was held by the whole Court of Common Pleas about p Years after the making this (g) Statute, viz,. That Simony was not againtt our Law, nor any Bond or Contract relating to it, made void by any Statute , and Anno 12 ElU. (h) in the fame Court it was held, that it belongs to the Spiritual Court to determin it, and not to the Courts at Weftminfter. . But the force of thofe ancient Canons was almoft worn out by time, and even when they were put in Execution, both the Patron and Incumbent often efcaped unpunifhed ; for the right of the Patron could not be taken away by a Canon, and the Incumbent was to hold the Living till he was deprived by a Judicial Sentence in the Spiritual Court, which was not very often obtained, becaufe fuch proof was wanting which the Ecclefiaftical Law required, therefore it was thought ne- ceflary Anno 3 1 Eliz,. cap. 6. to make a Statute againrt Si- mony. If any Per/on do prefent or collate to a Benefice with Cure, for any reward, or ajfurance, or give or be/low any Ecclefiaslical Living for any corrupt con/ideration, fuch Presentation^ &c. and every Admif- /ion,8zc. thereon fhall be Void> and the Queen may prefent to the fame for one turn. This laft Claufe was very neceflary to punifh the Patron in the lofs of his Prefentation ; for before the making this Statute the punifhment was chiefly inflicted on the Clerk, and the Patron efcaped, for he might prefent another. But now he is not only to lofe his Prefentation pro hac vice} but he is to forfeit double the Value of the Living, according to the utmoft Value, and this he forfeits upon a corrupt Con- tract only, tho' the Clerk is not prefented ; but the Queen is not to have the Prefentation unlefs the Clerk is actually pre- fented : And in fuch Cafe if he dies Incumbent the Queen fhall riot lofe Her Prefentation, becaufe it was Void, and the Church was never full of him. The words of the Statute which relate to this matter are, viz* He who gives or takes fuch Reward or Affnr*nce, forfeits don* Me the * Value of One Tears Spiritual Promotion-, and the Perform (f) Moor 564. (h) Cro. Eliz. 789. Moor 914- * To be divided between the Qpqgn and Sfofecutor, upon Convidjoa on an Info/nation, K k 2 corruptly 5oo dftnonp* corruptly taking fneh Promotion /hall be di fabled to enjoy the fame* This Claule takes in both the Patron and Incumbent ; but before 1 fhall treat of it in particular, I will mention how the Law (tood in relation to a corrupt Patron before the making this Statute, viz. Such Patron was to be Excommunicated, and to lole the right of Patronage for ever ; this was enjoyn- ed by the Canon, but never attempted to be put in Executi- on, for if it had the Courts at WcFtmintter would have granted Prohibitions, becauie they would never fuffer a Canon not confirmed by Acl of Parliament, or not generally received here, to determine a right to any Freehold. I know the Spiritual Courts mince the matter, by telling us they do not determine any fuch Right, for they meddle only with the manner of obtaining the Preicntation, which is very true ; but if that proves to be Simonaical, the Admiffion and Inilitution is Void, which by confequence divefis the Perfon of his Freehold, or rather the Incumbent hath no Freehold there, becaufe the Statute hath made the Church Void, fothat he cannot properly be faid to te deprived of that which he ne- ver had. S2Df & felf: (k) Moor 9i6l Cro.Elis. 26$;; Owen St. Befidev dimoitp, 5ci Befides, if the Provifion for a Son ftiould be a reafon to purchafe the next Avoidance in his prcfcnce when the Incum- bent is dying, the fame reafon would continue after he is dead as well as when the Church was full of a fickly Perfon, for the Father is as much bound by Nature to provide for iiis Son then, as he was before ; and yet it muft be agreed, that notwithftanding that natural Obligation, if lie purchafe for his Son after .the Church is void 'tis Simony. In Booth and Potters Cafe, (k) the Father made the cor- rupt Agreement, and the Son was not privy to it, yet he was held to be a Perfon difabled by this Statute to accept that Be- nefice ,• this was the Cafe Sir Simon Degg (I) tells us he had fecn j and my Lord Coke himfelf in another Cafe affirmed the Law to be fo.. Tis true, the Simony of the Father was clearly proved in that Cafe, and it doth not appear but that the Son was privy to it, for the Reporter tells us, that it was alledged that he did know it, and that might be the reafon why he was adjudg- ed to be a Perfon difabled. But there was fomething extraordinary in that Cafe ; for after the Simony of the Father was proved, and the King's Prefentee was admitted, the Father procured him to be depri- ved, but before the Deprivation he obtained a Grant of the next Avoidance to a Friend, who foon after the Deprivation prefented the Son again, and thereupon he brought his Eject- ment, but the Law was held to be againft him, for he muft neceffarily be privy to the Simony of his Father; becaufe the King's Prefentee was admitted upon it, therefore it feems plain, that he took the Benefice upon a corrupt Contract, which is exprefly prohibited by the Statute. The words are, viz,. The Perfon corruptly taking a Promotion {ball be difabled to enjoy the fame : Now this Claufe being fo very penal on the corrupt Taker, it hath been a Qjieition whe- ther a Perfon can be faid to take a Benefice corruptly, who is admitted to it upon a corrupt Prefentation, to which he was not privy or contenting. We have my Lord Cote's (/») Opinion, that fuch Perfon is not difabled by the Statute, but he tells us the Living is void, and if the Queen, whoteturnitis, will then pretend him 'tis good, and he fhall enjoy that very Benefice, and Buttler and Bjikers Cafe is cited in the Margent of the 3d Infiitutes tc prove it. ti) 1 Cro, he lool^s his Incumbency upon fuch a Pre- fentation, yet he is not fo diiabied but he may be prefented again to the fame Benefice. But there may be aSimonaical Promotion where neither the Patron or the Clerk are privy to it ; as if a Friend of the one give Money to a Relation of the other to procure him to pre- sent that Clerk, in fuch cafe the right of Prefentation will be vefted in the Queen pro hac vice, (p) and an Incumbent who came in under fuch a Title enjoyed the Benefice above twenty Tears. JTis true, Juftice Windham was againft that Judgment, be- caufe the Patrons Right might be defeated by collufion be- tween two Strangers, which he held to be very unreafonable. If the Clerk himfeif had contracted with the Patron for the next Prefentation when the Incumbent was fick, (<*) and for that purpofe that it fhould be granted to a Friend, who upon the death of the Incumbent prefented that very Perfon, this is Simony. So if a Stranger or Relation of any Clergy-man during the fickneft of the Incumbent agrees with the Grantee of the next Avoidance to prefent him, and accordingly he is prefented, this is Simony, tho* the Clerk is not privy to the Agreement, a fortiori where he is a Party and knows the corrupt Con- tract. i If pending a Quare Jmpedit (b) the Plaintiff fells the Ad- vowfon ea intentions, that fuch a Clerk (hould be prefented af- ter the Incumbent fhould be removed, who was afterward prefented, this is Simony. If a Stranger purcbafeth the next Avoidance (c) when the Incumbent is Sick, and then after his Death prelentsa Clerk who was not privy to the Contract, but acquainted with it afterwards, this likewife is Simony, (») Cro. Eliz 788. Moorju. (0) 12 Rep. 100. Lane 17. 0) Sid. 32^ (a) Hob. 165. Cro. £lu. 686. (b) 2 Vent. 39. (c) Moor j: 6. And dfmonp* J6j And generally any Covenant or Agreement made under any manner of Confederation whatsoever, to prefent a Per- fon is Simonaical ; ( under the name of Suffragan Bifhops ; the Preamble recites, that good Laws had been made for electing and confecrating Archbifhops and Bifhops, but no Provifion was made for Suffragans which had been accuftomed here for the morefpeedy Administration of the Sacraments, and other devout things, &c. therefore it was ena&ed that the places following fhoild be the Sees of Bifhops Suffragans. Bedford jo8 @>(tte €t\tt; Bedford, Berwick, Bridgwater, Briftol, Cambridge, Colchefter, Dover, St. German, Gilford, Glouce/fery Grantham, Hull, Hun-. ttnvdon, Ifle of Wight, Jfpfivich, Leiqefier, Marlborough, MouU ton, Nottingham, Penrith, Southampton, Shaft sbury, Shrewsbury, Taunton, Thetford. That the Biftiip of each Diocefs»fhall by petition prefent two Pertbns to the King, whereof he fhall allow one to be the Suffragan, and thereupon direct his Mandate to the Archbifhop to coniecrate him, which was to be done after this manner ; Firli it recites that the Bifhop having informed the King that he wanted a Suffragan, had therefore prefented two Perfons to him who were qualified for that Office, pray- ing that the King would nominate one of them, thereupon he nominated P- S. being one of the Perfons prefented, to be Suffragan of the See of lpfmch, requiring the Archbifhop to Confecrate him. The Bifhop thus Conlecrated was to have no greater Au- thority than what was limited to him by Commiflion from the Bifliop of the Dioceis, and was to la(t no longer. Tis true, this A6t was repealed by i & 2 Phil. Mar. cap. 8. but it was revived by 1 ElU. 1. tho' never put in practice fince that time. * Sine Cure. THESE are Benefices prefentable, but becaufe Vicaridges are endowed in the fame places the Perfons who enjoy thofe Sine Cures, have by longCuliom beenexcuied from Re- iidencc, which is the moll can be faid for them. This was the Opinion of the late Bifhop oiWorcefter, but it needs fome explanation. Generally wherever there is a Sine Cure there mult be two Incumbtnts, the om is a Rector the oilier a Vicar, and they are both equally Infhtuted ad curaman'marnm, the one Habi- tu.ditcr, the other Actualiter, that is, the Re&ors are not obliged either to Duly or Refidence, but the whole Cure of the Parifh is by Cultoin devolved on the Vicar, io that the Redone? of fiich Pari flies are thofe which are commonly cal- led Sine Cures. • And as thefe Cures are prefentable, to they mult be rehgn- c d to the Ordinary, and whatever hath been aliedged relat- 1 £ to btWet Benefices is applicable to them 5 only if fuch Re- es areDonatJve as feme of them are, they may be more ailed Si ae Cures then when the Incumbent comes i& .'.'UhRanding the dijtinftion above- mentioned ©fnotijs ano ©fno&ais. 5-09 mentioned, I cannot lee how a Man who i? really Inftituted ai cttram animarwn, and hath taken upon him that Cure, can be faid to have it only kab'malitcr, fo as to make his Benefice a Sine Cure. Sinods and Sinodals. IT H I S is a meeting of Ecclefialtical Perfons for the cauies *■• of Religion .;, and it comprehends the Provincial Sii oJs of every Metropolitan, and the Dioceian of every Biihop with- in their Limit?. And thefe are not of that Authority as General Councils, nor do their Canons oblige the whole Chriitian Church, but only that Nation were they were made; but if fuch Canons are agreeable with the Scriptures, and confirmed by General Councils, they are in force every where. I fhall not make a large Difcourfe of thefe AfTemblies, be- caufe they are now almolt difufed, and therefore fhall only acquaint the Reader that the molt famous Councils have been held at Africa, Britain, France, Germany, Italy Spain. It would make a very large Volume to treat particularly of thofe Sinods which have been held in each of thofe Places, therefore I fhall confine my felf to thofe which were AiTembled here in Britain, and as to that matter, I find that a Si nod was held here at Winchejhr, in the time of King Edgar, in which Archbifhop Dunjfan was Prefident ; and the Monkifh Hiftorians of that Sinod tells us, that a Wooden Crofs did then Speak againft the Marriage of Priefts, which probably might have a greater effect upon them againft that ftate of Life, in thofe credulous and fuperftitious times, than all the Wooden Arguments that Archbifhop orany of his Chaplains could bring againft it. There was another held at Oxford, wherein Archbifhop Langton was Prefident, who divided the Bible into Chapters ; and in this Sine d many Conftitutions were made for the better Government of the Church. - Another at Clarendon under Archbifhop Becht, in the Reign of Hen. 2. in which fome Decrees were made concerning thi .Prerogatives of the Crown and the Privileges of the Clergy: Two in the Reign of Edrv. 6. In the one the 39 Articles were Confirmed ; and in the other the Englifh Liturgy was Compoiedby Seven Bifhops, and Four Doctors of Divinity. And here I cannot but take notice that Provincial Sinods were to be held twice in every Year ; this appears by the Apo- ftolical Canons, and likewiie by. thofe made in the Ccuncir ofiMcc, But 5 io ^fnoD0 ani> SnuotJaljS> But this being found too hard a Task for Bifhops, who were ufually Men in Years, efpecially where the Provinces were large, it was difufed about the middle of the 5th Centu- ry; fo that fome Canons were made for Synods to be held once in a Year, but not abrogating the ancient Cuftomtohold themoftner, and this continued for many Ages, but at la(t this came in like manner to be neglected, and thereupon, a- bout the middle of the 14th Century another Canon, was made in the Council of Bafil, for a Triennial Sinod of all the Bifhops of every Province ; and in the lame Council there was another Canon for every Bifliop to hold a Diocefan Sy- nod once in a Year. And even here in Britain, by the ancient conttitution of this Church, a Sinod was to beheld once in a Year, which is now difcontinued, and thus the Authority of examining things thro' the Province, devolved on the Archbifhbp. In a Dioceian Synod the Bifhop always prefided, and he ufually Summoned Septem a plebe in every Parifh in his Dio- cefs, to whom he adminiftred an Oath to enquire into the ftate and condition of each Parifh relating to Ecclefiaftical Affairs, which were called Tefies fynodales, and thefe Men made their preferments in Writing, or viva Vocein the Si- nod. And at thefe meetings there was a pecuniary Tribute paid by the inferior Clergy to the Bifhop, which is called a Syno- dal, becaufe it was ufually paid at thofe Sinods, but not al- ways ; for it was paid like wife at Cbriflmas and Eafier, and fometimes at the Bifhops Vifitations ; and it differs from Pro- curations, for thofe are Penfions, but Sinodals are Cenfus or Tributes. This Tribute was afterwards demanded by Archdeacons and Deans, not jure Communi EccleftAJlicOy but by compofition between the Bifhop and them; andfince Sinods have been dif- continued, this Tribute is ufually paid to them at Vifitations, and claimed by Archdeacons for their Eafter Vifitations, it feems to be a Contribution towards their Charges in Sinods, for they were Elected by the Deacons, and were their Repre- fentatives at fuch Aflemblies. Tis now become a Church Due, of which the Acl of 34 H. 8. cap. 19. takes notice, and provides for the recovering it, where 'tis denied or neglected to be paid, and 'tis reafonable it fhould be fo, becaufe 'tis valued in the Queen's Books, and She receives an yearly Tenth out of it. The Ad fets forth, That Sinodies due out of Religious Houfes 4ij[olved} foall he pM to Bifhops and Arcbdmons^ by the Occupiers of thofe very Lands, if Ecclefiafikal Perfons were feifed thereof within 10 Tears before their Diffolution ; dnd if in Suits in. the Spi- ritual Court the Defendant fhall be Conviil, the Plaintiff [hall reco- ver the value thereof in Damages, together with Cofts of Suit ; the like hefhall recover at Common Law, when thecal is determinable there. And from hence fome infer, that Sinodals are due by Ad of Parliament, and not ratione Vifitationis. Tithes. T-1 1 T H E S being the great and legal fupport of the Clergy, ■"■ I fhall be the more particular in Treating thereof; and firft I fhall give an Hiftorical account of the Right which they have to receive them. We are directed by reafon to offer fomething to God, as an acknowledgment of his Bleflings, from whom we receive all that is good. I know 'tis objected, that his Dominion over the whole isfo univerfel and extenfive, that it may feem abfurd to offer him any part ; but yet the Scripture it felf commands us to honour him with our Riches, and with the firft Fruits of our En- creafe ; and by the Mojaical Law the People were command- ed to bring the firft Fruits of their Land into the Houfe of their God 5 and after they had poiTeflion of the Land o£ Canaan, they were commanded to bring to the Prieft the firft of all the Fruit of the Earth, in a Basket, as an acknowledgment that they enjoyed that Land by the Gift of God. The proportionable part (that is, the Tenth) was paid by two Patriarchs long before the Law ; for Abraham paid to Melchijedick, not only the Tithes of the Spoils which he brought in his return from the Slaughter of his Enemies, (a) but the Tithes of all things, and thele were paid to him as a Prieft, for fuch he was, and of the moft High God, and it was in that capacity, and not of a King, that he met Abraham, for he was not affifting him in the Wars, but met him as he returned with Vidory. After Abraham's Death, the Patriarch Jacob made a Solemn Vow to return unto God the Tenth of all which he fhould beftow on him, and 'tis probable that being himfelf Abra- hams Grandfon, he had obferved what was done by him, and therefore fixed on the Tenth rather than on any other part. The Jews, who were the Pofterity of the Patriarcks, were told by Mojes, that all the Tithes of the Land were the Lord % ■«— — — 1 ■ — mmm~m^—*m—m — m ■" ■ ■ ■ not 512 f&ttfad* not in the literal Senfe, but as they were devoted and due to God, who aOigned his right to the Levitesin thefe words, viz,. 1 haV! given the Children of Levi all the Tenths in Ifrael. *Tis true, the Jews paid more than the Tenth to the very time of the Deduction of the Temple; but before the Mofaick Law the juft Tenth part was paid by the Patriarchs, and in conformity to that proportion the Tenth was paid to the Le* vites under the Law, which was called the firtt Tithing, and this was accounted an Inheritance which was to continue for ever, after the other Tithes fupcradded by that Law were A- bolifhed with it, fuch was the leaving one corner of the Field imreaped, amounting to a Sixtieth part, the offering the firft Fruits, the redeeming the fir ft Born both of Man and Beaft. Therefore this proportion being paid by the infpired Patri- archs, it became a fettled Provifion for the Levitical Prieft- hood, and was univerfal!/ paid even by the Heathens them- ielves, who derived this Culiom from them by Tradition, and not from any pofitive Law of Mofes; for in imitation to fuch payment as made by Abraham, they paid Tithes of Spoils to their Kings or chief Magiftrates, which was never done by the Jewsvand this was not only Voluntary but it was of theJBeft, and it was from thence that Edecuwata fignified the chiefeft tiling, and Fluff us Dec unarms the high eft Wave. It vvas a proportion agreeable to the reafon of the greateft part of mankind, and it being generally paid by the Gen- tiles when our Saviour was Born, there feems to be noocca- fion of any pofitive or exprefs command in the Gofpel for this payment, becauie both Jews and Gentiles were agreed in it before. However, we have fome imitations of it there, for what elfe can we intend of rendring unto God the things which are God's, which the Fathers interpret to be Tithes, firlt Fruits and Obla- tions, for no Man can think it was meant Literally : Befides, our Saviour Himfelffpeaks of Tithing Mint, Annife and Cummin, andhe appointed a (b) maintenance for the Mi- nifters of his Gofpd, which could not be lefs than a Tenth £>art, becaufe a meaner Prielthood had lo much before he was Born, and another reafon may be, becaufe the Chrittian Priefts were commanded to be Hofpitable, which could not well be with a iraaller proportion. Tis true, the Apoftle exprerTes himfelf indifinitely to his Corinthians, viz,. That they which preach the Gofpel fheuld live by it, but this livelihood muft certainly be the Tenth part, becaufe .(*) i Car* c?.p. 9,15,14. .v Sfa ©tt&esf. s*i it was to be like that of the Jevyifh Priefts and Levites, and this appears by the bed Expoiitors of that Text. But the meaning is plain without an Expofition, and this out of the whole frame and contexture of the Words than- felves, and the Verfes relating to this matter. Do you not know that the Levites who Minijter about holy things live of Tithes, and that the Priefts who wait at the Altar are par- takers of the Oblations and Sacrafices ? The Similitude follows, Even Jo hath the Lord ordained that the ChriftianPriefts who preach the Gofpel fhonld live of the Gefpel , that is, they fhould live of what is devoted to Chrift, as an acknowledgment to him for his Gofpel. So likewife the Apoftle writing to the * GaLthians, enjoyns them who are taught in the Word, to give fome part of their Temporal Goods to the Teacher ; 'tis true, he doth not name the Tenth part in Terminis, for it was generally obferved throughout the World, and therefore there was no occafion to be particular in it, efpecially fince that part was let audc for this purpofe from the beginning of time, and approved by God himfelf. I fhall infift no longer upon this ; and fhall but juft men- tion what was done by the primitive Chriftians in relation to this matter, and fo proceed to ftiew when Tithes were paid here amongft us. But firft I muft Anfwer that Objection which is ufuajly made, that Tithes were not paid till about the end of the firf* 400 Years after Chrift, and that there was not any Canon made in the African Councils for fuch payment. Tis true, there might be no ftated or regular payment at that time, becaufe the Church was then under Perfecution ; but if the Chriftians in the beginning gave more than the Tenth, as certainly they did, then there could be no occafion for a Canon to enjoyn them to pay it. And 'tis plain they gave more, for they Sold their PofTeffions and brought the Money into the Common Treafury of tbe Church, f Tertullian tells us, that all things were in common amongft them, but their Wives, and not only the Money which was raifed by Sale of their Elates, but they made O- blations every Week, or at fartheft every Month, to the Church, And we are told by St. Cyprian, that even thofe Offerings Were anfwerable to the Levites Tenths, from whence we may infer, that Tythes were paid at that time. * Gak 6'z ft t Apelcg. pap, }j>: 12 But 514 CitfjeS* But foon after Kings and Princes were converted to Chti- {tianity, and the Church began to be fettled, we have plain Proofs of the payment of Tithes. Amongft us here in England, 'tfs probable that Tithes were paid by our Saxon Ancestors, as foon as they were converted from Heathenifme ; for King EMbert made a Law againft taking away Res Ecclefix, which they called God's Fees, and thefe were granted to the Church a Rege Baronihus & poptilo, and the Laws of King Ina long before that time en/oyn the payment of Church Shot. And feveral other Saxon Kings made Laws that the Church (liould have its Revenue, and that the Clergy fhould have the firft Fruits, all which may be expounded of Tithes, becaufe they were paid to the Church. This appears by the practife oiEadbert, who was Biftiopof Lindisfame, in the beginning cl King M/s Reign; 'tis true, he could pay no Tithes himlelf, becaufe he was a Clergy-man, and therefore he gave them every year to the Poor. About 50 Years after him, Bonif ace, B\(hop of Mentz,, wrote an Epiftle to Cuthbert, Archbifhop of Canterbury, wherein he exprcfly mentions Tithes, as ufually paid in thofe days ; and in Archbi/hop Egberts Canons, which were Collected by him in the year 7^0, we Read of Priefts who were command- ed to teach the People to pay Tithes ; that the Receiver was to Regifter the Names of fuch as paid, and that no Man fhould take them from ancient Churches, nor any Secular Service be done for them. *Tis like wife true, that in obedience to thefe and other Ca- nons, Tithes were paid here in fome particular places ; but King Ethehoiph, who was the fir ft Hereditary Monarch of the Englifh Saxons, made a Voluntary Donation of Tithes to be paid throughout the Kingdom, and this was done in a Gene- ral Council, with the free confent of the Spiritual and Tem- poral Lords, and a multitude of other People, which Donati- on was confirmed by many of his SuccefTors, even to the time of Edward the Confeflbr, who made a Law that the Tenth of all Corn fhould be paid to God, as due to Him, and tells us in what manner both Prsedial and Perfonal Tithes ought to be paid, and that if any Perfbn fhould difobey that Law, he fhould be compelled to pay this Duty by the King and the Bi- fhop, and thus it flood till the Conqueft. It would be very tedious to mention all the Canons and Conftitutions which were made in Provincial Sinods in the Reigns of the Norman Kings relating to this purpofe, therefore I (hall only fhew that Tithes were paid here long before the Parochial Right was fixed, which fome would have to be a littl* little before the Later An Council Anno 1 215, but that mutt be a miltake. For Pope Adrian the 4th decreed the Monks of Doxley to pay Parochial Tithes, as fully as had been paid be- fore they came into that Parifh, which was in the year 1 144, and that was above 70 years before that Council was held, {a) for then that Abby was founded. Tis probable that Parochial Tithes were more (triclly paid to the Secular Clergy for fome time after that Council than before, becaufethey could not be otherwife depefed or^appro- priated at that time to any other ufes, even wiih the Bifhop's confent. But a£)out 15 Years afterwards, when the Monks found that the Pope and the Bifhops began to appropriate feveral Tithes to Monaiteries, which they had taken from the Secular Clergy, then the School-men, and particularly Alexander of Hales, who was a Monk himfelf, invented a Doctrine to Juf- tifie fuch Proceedings, and that was by aliening a con poten- cy to be due to the Clergy by the Laws of God, but that the Tenth part was inftituted by the Church in meer condefcen- tion to the Laity, intimating that they ought to pay a Tenth to the Rectors, but a great deal more to the Friars. If this Doctrine had been true, it might have Juftiried thofe Monks inpoiTefling a great part of the Parochial Tithes, and affigning a fmall portion to the Vicars as a cdmpetens benefit cium to officiate in Churches. But it was invented by them out of a bafe and covetous de- fign ,• it deftroyed that Doctrine which had been received a- mongft Chrittians for many Ages, and tho' Earafinus himfelf and fome other great Men were (inclined to this new Opinion of the School-men, yet he was certainly of another mind when he was inducted into a Parfonage in Kent, and received Tithes there. I ihall now proceed to the Reign of Hen. 8. who confirmed thofe Canons relating to Tithes, which were made in the Reigns of his Predeceffors, this he did * after he renounced the Pope's Supremacy by a particular (b) Statute made for that purpofe ; And by which it was Enacted, that Tithes fhould be paid according to the Ecclefiajlical Laws of the Church of England, and according to the cuftoms in every Parifh where they [hall grow due, and the Reafon is given in the purview of the A6t, vUs hecanfe they are due to God and his holy Church. And 'tis to be oblerved, that before Lay-men had any Grants of Monattery Lands to hold them difcharged of Tithes, in (4) Djgd, Mta. fe, 827, I Ann* 1 h*. (l>) 37 Hen. 8, csp, 20. L I 2 tbj fi6 Citfjesi, the fame manner as they were held before the DifTolution, care was taken to alienate the Tithes of thofe Land9, by the content of the Bifhop, and that due payment might be made thereof to the Parochial Rectors. Thus it appears that Tithes were paid by the infpired Pa- triarchs, that fuch payment was hkewife enjoyned under the Mojakal Difpenfation, and not repealed by the Gofpel ; that the ancient Fathers held them due to the Church, and that they were conftantly paid in the firft Ages of Chriftianity, and here in England as loon as our Saxon Anceftors were Convert- ed from Heathenifine, and this in Obedience to the peculiar Laws of God ; but when Chriftians became cold in their De- votion, then the payment was enforced by Temporal Laws, till afterwards, by the free and voluntary Donation of King Ethelwolpb, who had all the Lands of England in Demefne, and by a kind of Parliamentary confent of that time, (as Mr. Selden calls \t) they were for ever dedicated to the Church,and this hath fmce been confirmed,not only by Canons, but by fe- verai Statutes, and particularly by Magna Ckarta, and the Clergy have enjoyed them by virtue of thofe Laws 800 Years and upwards, io that 'tis now a peculiar Effete veftedin them, and diftiricl: from the Inheritance of the other 9 Parts, and they have as good, if not a better right to it, than any Layman hath to his E(late, if fuch a right can be acquired by a Volun- tary Donation, and be Eitablilhed by a long and continued PofTeflion, and confirmed by many Acts of Parliament, as cer- tainly it may. Having (aid thus much for the civil right of Tithes, I fhall in the next place give an account of the definition of the word, and then fhew how 'tis divided. Tithe is a Tenth part in propriety of Speech, or fomething in lieu thereof, yearly arifing out of the Encreafeor Profits of Land or Stock, or raifed by the Induttryof the Pariihioner. And agreeable to this Definition, the Common Lawyers divide it into Three parts : (1.) Pradial. Which arifes mecrly from the Ground, as the Fruits thereof, viz,. All forts of Grain, Hay, Underwood, Fruits of Trees, as Acrons, Apples, Cherries, &c. alio Hops, Saffron, Hemp, Flax, Garden-Herbs, as Parfley, Mint, &c. (2.} Mixt. Which ariie from Cattle nourifhed by the Ground, as Colts, Calves, Lambs, &c. Milk, Cheefe, Eggs, •Chicken, Geefe, &c. (3.) Perfonal. Which arife from the Labour and Induftry of Men ufmg any Merchandize or Manual Occupation, a»d this is the Tenth part of their clear Gain, the Charges and Ex- pt nces bei ng firft Deduced,- 1 Ml. Ah, 6 $6, Plito v. There- Therefore if an Owner of a Ship lend it to Mariners to car- ry on the fiihing Trade, who agree to pay a certain quantity of Fifh for the hire of the Ship, no Tithe (hall be paid of thefe Fith, becaulc 'tis a perfonal Tithe, and ought to be paid out of the clear Gain. Co rjjrjom xmt.] Thefe Tithes, be they of what nature they will, are properly due to the Clergy who have the cure of Souls, and are to be paid to them in the Parities where they arife. But yet in fome Cafes the Par Ton of one Parifh may pre- fcribe to have a portion of Tithes arifing in another Parilh ; this is where the Abbots and Priors had fuch Portions before their Houfes were diflolved, in fuch cafe the Impropriators may claim them now, and the ufage fince the Di Ablution is an Evidence how it was before. And as Tithes are due to the Clergy, fo a Layman was not capable of them in prender, but in fome particular Cafes, as for inftance, * a Lord of a Mannor prefcribed to pay to the Parfon of H. in whofe Parifh his Mannor was, fo much in fatisfadion of all Tithes ariQng in the faid Mannor, and that in confideration thereof he and all thofe whofe Eftatehc had therein enjoyed all the Tithes there, this was held a good Prefcription. But fince the Statute of DifTolution of Monafteries, the Tithes which were appropriated to thofe Religious Houfes arc made a Lay-Fee, and many Laymen are capable to have them in pernancy, and may fue for them in the Ecclefiaftical Court 5Tis regularly true, that Tithes are to be tf>ut of tofcat paid of things encreafing annually Simui Cttl;c0 atlfc* & jewel, and therefore my Lord Coke af- firms, that they are not to be paid of Mi- neral^ nor of Chalk, Lead, Slate, Stone, Tin, Turffs, &c. but this Rule 13 to be underftood where there is no Cuftom to the contrary; for if this Rule fhould be true, then no Tithes could be paid of Houfes ; for a Houfe which is built doth not year- ly encreafe, nor of Pafture Lands, becaufe it muft not be on- ly Simnl but Semel. So things which are fer* natnr for they arc a Man s Property. 11 i m 1 j 11 1 l ' 1 ' ■■ ■■mi!!.''-. -■" ' I* 3 1* *i8 CftBesf* But fome things which are/4- W * Rol. Abr. 640. 1 Rol* Rep. 355. Moer 841., (n) 1 Rol. Abr. 6;i. Flit«. jj.(x) Moor 997. [j) 2 Brownl*. §2. 5« mw& - !P'£m,i. T uhes are not due for Btm™ ( *> uftd for Fuel in the Parifh where it grows. W"*» IUI ruei ""I*3 7^- tenth 9alf is due t0 tbe p«fon when 'tis weaned, and he is not obliged to take it before, and fome- times the Tithe is to be proportioned with refpeft to the olaces where they are engendered brought fourth and nourished. But if under the number of Ten in one Year, the Parfon cannot have Tithes in kind in that Year without a Special Cuftom, but may take it fo in the next Year, account^ both Years together, or Tithe pro m* in the fame Year if Trl is any Cuttom for it. But 'tis a good Modus to pay one Calf if he hath feven in r'J?\ *Zdu un/e'flven then an half-penny for every Calf for the Tithes of all Calves in that Year, and if he fe £ Cattle*] Thofe which are bred for the Plough and Pail pay Tr r^ f °ir Lheir Pra^rC' £ecaufe thc Parfon hath the bere- fit of the Labour of Plough-Cattle by tilling the Ground for Corn, and Tithe-Milk for thofe which are bred for the Pail But in the firfr cafe it muft be alledged that the Cattle were ufed to manure the Ground in that very Pariih, 2 Cro w I RoL Rep. 62. 2 Cro. 430. ',3' If fuch Cattle are bred or bought to fell again, and ac- cordingly are fold before they are ufed, Tithes /hall be paid for them • but not if he kill and fpend them in the Houfc I RoL. Abr. 647. Pltto. 13. ■ If fuch Cattle are pa(t their Labour, and the Cows are Bar- ren and afterwards fatted in order to fell, they fhall pav Tithes during the time they were fatting for the reafon of the difcharge then ceafeth, 1 RoL Abr. 647. Plito 9 If Cattle are bred for the Plough, tho' the Owner hath no arable Land in the Panfh where they were bred, yet thev /hall pay Tithes where fed, Hardres 184. If a Manfows his Land to feed his Horfes ufed for Tillage there fhall be no Tithe paid for fuch Pafture, but if he keeps Horfes to fell, and accordingly fells them, he /hall pay Tithes Cattle feeding on large Wafis not known to be in anv particular Parifh, fhall pay Tithes to the Parfon of that Pa- rifh where the Owner lives, and if fed in feveral Parishes they fhall pay Tithes pro rata, fo as they continue above I Month in each Parifh. But where the manner of Tithing barren Cattle is not made certain by Cufiom, it fhall be computed according to the ■ (a-) Cro TMz. 609. i Ro! Abrt 644. , value Cltfjes* 523 value of the Land on which they are depaftured by the pay- ment of 2 s. per pound Rent, Htrdres 35. CfjalfeO Chalk and Chalk- Pits are not Tkheable. CrjecU,] If the Milk pays Tithes the Chcefe pays none, but it may be a good Prescription to pay the Tenth Cheele made between May and Augu/f for all Tithe Milk in that Year. Cr;ert£*fljtec*.] Cherry-Trees in Buckinghamshire have been adjudged Timber, and therefore Tithe- free. C&lcfeen.] Chicken pay no Tithes, becaufe the Eggs are tithed, 1 RoL Abr. 642. Plko. 6. Cla^O Clay is not Titheable. Cloatfcc0.] Cloathes fulled in a FulJing-Mill, lee Mill. Cole*] Are not Titheable, therefore a Prefcription de non decimando as to them is good. Colt*] The fame with Calves. Conicf «] Tithes are not paid for Conies de jure, becaufe they are/er« natttra, but by Cuftom they may become due, but now 'tis generally held that if they are fold in the Mar- ket and not lpent in the Houfe, Tithes ought to be paid for them, and yet they are fer£ nature let them be fpent or fold where they will, 1 RoL Abr. 635. Plito. 3. March. 87. Har- dres 188. Het. 147. Lit. Rep. 3. Co?m] Corn pays a predial Tithe, tho'it arifes every Year out of the Land, but 'tis by the Labout and induttry of tbe Husband-man, and it ought of common Right to be cut down by the Owner and prepared for the Parfon, and Tithed by the tenth Cock, Sheaf, or Shock, and if the Pariihioner refufe to do it, the Parfon may fue him in the Spiritual Court, but it muft be fpecially for not fetting it out in Cocks, and not generally for not fetting out the Tithes, Latch. 125. Sid. 183. But the Parifhioner is not bound to put the Parfons Sheaves into Shocks unlefs by Cuftom, 1 RoL Abr. 644. Plito. 6. If he doth not fet out the Tithes, he is liable to be fued m an Adtion of Debt upon the Statute for treble Damages, and if he doth fet them out and afterwards carry them away, the like Action may be brought againft him, becaufe the fettiflg out was with a fraudulent defign to cheat the Parfon. But 'tis cleao: that an Action of Trefpafs lies againft him, or he may be fued in the Spiritual Court: but if a Stranger takes them away, he mult be fued in an Adtion of Trefpafe at Common Law. A Prefcription to pay the Parfon the tenth SheaT, as it faUt wy or the tenth Smrth is not good^ 1 RoL Ahr. 643. Plito. 6. • But 5M Cft&e& But a Prefcription to be difcharged of Tithes in that Year wherein the Field was fallow in confideration he had fet the Sheafs into Shocks when the Field was fowed, this is good, i Rol. Abr. 649. Plito. 4. Co!»*«] Gows which are Milked pay no Tithe for their Pafture, but if a Man hath but one Cow and doth not make any Cheefe, fomething ought to be paid, but the Cuftom of the place is to be obferved. Qtfiom, fee Modus. 3Dcer, fe #atfrO Deer are not Titheable de jure, becaufe they are fere nature, Noj 14.%. Het. 147. but they may pay Tithes by Cuftom. ^ €lm.] Elm above 20 Years growth pays no Tithes, for ttis Timber. Cggs.] Eggs are Titheable in kind, and where fuch Tithes are paid, there is none due for the Chicken ; fo where Tithe is paid for Chicken there is none due for Eggs. It is a good Modus to pay thirty EggsinZ>>tffor all Tithes of Egg?, 1 Rol. Abr. 648. Plito. 3. ;tfaUoto*gtcunt>*] Fallow-Ground pays no Tithes for the Pafture in that Year in which it lies fallow unlefs it remain beyond thecourfe of Husbandry, for it makes the Land more Fruitful the third Year, 1 Rol. Abridg. 6/^2. Plito 9,649. Plito 4. $m ^atuu«] Beafts and Birds which are Per a Nature arc not Titheable, but Rabbits in a Warren, and Pidgeons in a Dove-Houfe are not properly Per a Nature, becaufe they are kept under Cuftody, and by that means are reduced to be the Property of particular Perfons, and fo are Bees under a Hive, and therefore all thefe pay Tithes by Cuftom. ;ffcmtt> 0*] Fenny Grounds drained from the Wa- ter and made enable, or converted into Pafture, muft pay Tithes notwithftanding the Statute, 2 Ed, 6. 3 Bulfi. 165. Moor 430. $i%] Fifti taken in the Sea are not Titheable dejure,be- caufe they are not only Per a Nature, but the Sea is not pro- perly in any Pariah, 1 Rol. Abr. 636. Plito. 6. Cro. Car. 264. But if 'that is a good reafon, then they ihould pay Tithes when caught in a River, becaufe moft Rivers are in tome Parifh, and yet Fifh caught in a Common River pay no Tithes, Cro.Car. 339. 1 Rol. Abr. 6^6. Plito. 6. Tis true, Anno 9 Car. the Court was divided upon this point, but yet they granted a Prohibition to try the Right. _ But Tithes may be paid by Cuftom for Fifh caught in the Sea and in Rivers, and in fome places in Cornwall they pay. Tithes pi Fifh caught in the Sea to the Parfon of that Parifli wherein theytare Lvndsd, and-fo at Yarmouth they pay THu < for for Hcrrines, but not the Tenth Fife, but fo much Money, for this is a Perfonal Tithe, and therefore the Tenth Hull not be oaid unlefs by Cuftom, 1 Rol. Abr. 6^6. Phto 42 _ If a Man fuggefts a Cuftom that all the Fifh in a Ship fhould be divided into Ten Doles, after the Owner's Part is feparated for the ufe of his Ship, and that then the Tenth Dole is to be divided, one moiety to the Parfon, and the other to the Town otrarmoHth, this was held to be good 1 RoL Rep. 419. HFiajc*] Flax pays a Predial Tithe like Hemp, and us ac- counted inter mnutts decimas, 1 Rol. Abr. 643. Plm ?. iPojett %VM ] Foreft Lands not in any PanQi do gene- rally belong to the Queen by virtue of Her prerogative, and She being feifed of fuch Lands (hall pay no Tithes 3 but tho this is a privilege annexed to the Grown, it may be a queftion whether the Grantee of fuch Lands can have that privilege. My Lord Rolls tells us he may, but 'tis certain, that if a Fo- reft is disforefted,theGranteeof the Queen ihall pay Tithes for thole Lands which were formerly parcel of the Foreft, Jones 287. Cro. Car. 94. Het. 60. 1 Roll. Abr. 655, 657. dfottl.] If Fowl are Killed to make1 Profit of them, the Owner muft pay a Perfonal Tithe. . Domeftick Fowl pay Tithe Eggs or Chicken in their feve- ral kinds; but where they pay Tithe Eggs there (hall be no Tithes paid of Chicken. _ jftnf t c* Cm*.] Apples, Pears, Plums, &c. pay a Predial Tithe as foon as gathered, and an Action will he upon the Statute of 2 Edw. 6. for fubftracling fuch Tithes, or for not fetting them out. : _. # urWl Furze pay a Predial Tithe, unlefs the Owner of the Ground can be diichargedby Cuftom, upon payment of Tithe Milk, or Calves of fuch Cows which are Depaftured on that Ground where the Furzes grow. . en*3 Gardens pay Tithes for Herbs, Hemp, Plants, Seeds, Saffron, Woad, and this muft be paid in kind, and therefore the Tenth part ought to be fet out for the Parfon. «5raf*. See 3gtftmcnt.3 Grafs pays a Predial Tithe, but it 'tis cut and carried to feed the Owner's Plough Cattle, before 'tis made into Hay, not having fufficient otherwife to keep them, no Tithe ought to be paid for it, 1 Rol. Abr. 645. Where the Cuftom is not to the contrary, the Panlhioncr ou^ht to make the Grafs into Hay j but in many places the Tenth Grafs Cock is fet out, and in fuch Cafe the Parfon may 4e jure make it into Hay upon the Land where it did grow, without alledging a Cuftom for it, 1 Rol. Abr. 643. 5*6 €ftlje& A Prefcription to pay the Tenth Acre of Grafs, (tending m lieu of all Tithe Hay, is good, i Roll. Abr. 648. Plito 7. 4??atKf.3 Gravel pays no Tithes. $ap.] Hay pays a Praedial Tithe as well in Orchards as in Meadows ; but noTithes fhall be paid for that which grow9 on Headlands, where the Plow-Cattle can have only'room to turn, but then there mutt be a Cuftom alledged to pay it, and the Party muft aver that the Headland is only large c- nough to turn the Plough on it, 1 Roll. Abr. 646. And if once Tithes are paid for Hay, no Tithe (hall be paid for the after Pafture of the lame Land, in the fame Year, 1 Roll. Abr. 64c. As to the manner of Tithing it, the Cuftom of the place is to be obferved, for in moR Places the Tenth Cock is fetout aftet 'tis made into Hay ; but where there is no liich Cuftom, the Tenth Grafs Cock may be fet out, 1 Roll. Abr. 644. And therefore, tho3 the Tithes of Grafs ought of right to be made into Hay, yet a whole Pari fn may Prefcribe to pay tbe Tithe in Grafs Cocks before 'tis tedded, and this without any confjderation given to the Parfon, 1 Roll. Abr. 647. Plito 1. But if 'tis fuggefted that the Owners of the Land have, time 6ut of mind, found Straw to Thatch the Body of the Church, and have therefore been discharged of all Tithes of Hay, this is not good, for the Parfon hath no benefit by it, becaufethe Pa- ir iflhioners are to repair the Church, Go. Eliz,. 276. If there is a Modus for the Tithe of Hay, and the Meadovfr h converted into Tillage, the Parfon (hall have the Tithe Corn, but when the Lands are again converted to Meadow, the Modus fhall reviy/, Godb. 194. a So in conGderation that the Parfon and his PredecefTors, time put of mind, had been feifed of a Meadow in the Parifh, the People fhouldbedifchargedofTithe-Hay, this is good, for it fhall be intended that the Meadow was originally given to the Church, in difcharge of the Tithes of the Parifh, 1 RolL Abr. 649. Plito 6. but 'tis not a good Modus that in confidera- tion he had fpent all his Hay in feeding Plough-Cattle, tfoat hefhould be difcharged of the Tithe-Hay, 1 RolL Abr. 650. Plito 13. I&efltfc.] Heath. See Furze. l^cmp.] Hemp pays a Predial Tithe, and becaufe there were various ways of Tithing it, therefore by a late*Ac~tof Parliament a conftant Annual Sum of 5/. per Acre fhall be paid for Hemp-Land before 'tis carried off the Ground, and fo in proportion. $etbftge.;j Herbage. SeePafture. #onc^3 Honey pays a Predial Tithe, and the manner of Tithing it is by the Tenth Quart, or Pint, Cro. Car. $$p. Jones 447. 1 Roll.Abr.6tf. Plito 1. Uop0.] Hops likewife pay a Predial Tithe, but the man- ner of Tithing it is various, according to the cuftorn of the Place; and of this Opinion was Juliice Trvifden, who lived in Kent, and affirmed they might be Tithed by the Hills, by the Pole, or by the Bufhel, and if fo, then the Tenth part mav be fet out before they are Dried, and this agrees with the Cafe Reported by Juftice Htttton, Sid. 283. Hut. 77. But my Lord Rolls tells us, they ought not to be Tithed be- fore they are dried, 1 Roll. Abr. 644. Plito 3. A Modus cannot be Pleaded in diicharge of Tithe Hops, be- caufe they were brought into England in Queen Elizabeth's Reign ; but a Suggeftion to pay fo much in lieu of all fmali Tithes will comprehend Hops, and in fuch cafe a Prohibition hath been granted, Sid. 443. 1 Vent. 61. But Hop -poles are not Titheable, when the Hops pay Tithes. If a Man keeps a Horfe for the Saddle, nd $orfe0. Sec Tithes (hall be paid for his Pafture ; but if the! Cattle. Owner fhould be Sued, he mutt aver that h6 kept the Horfe for his Work and Labour, i Rol. Abr. 641. 2 Cro. 430. The Cafe of Pothil and May is very imperfeclly Reported by Mr. Buljtrode, in his firft Part, fo. 171. viz,, that no Tithes ought to be paid for the Herbage of Saddle Horfes kept for Plea- fure; but for Cart-Horfes to till the Ground, the Owner ought to be Anfwerable to the Parfon for their Herbage, which is contrary to feveral Refolutions in the like Caies. Tis true, if an Inn-keeper Departures Travellers Horfes, he muft pay Tithes for the Herbage, unlefs he paid Tithes for the Hay of the fame Ground, Hardres 35 1 Roll. Abr. 641, 650. But if Horfes are kept to Sell, and afterwards are Sold, Tithes fhall be paid for their Paliure, 1 Rol. Abr. 647. Flm 14. $9ttfe0.] Dwelling-Houfes are not properly Titheable, be- caufe they do not Annually Encreafe ; but by a Decree made by the Privy Council, Anno 1535, it was Ordered, that 2 s, & pd. fhould be paid for every Houfe in London^ which De- cree was confirmed by A& of Parliament, Anno 37 Hen. 8- CAp. 12. Now, ?28 €(tfje& Now, this Statute relating only id London, and the Liberties thereof, the Queftion was Solemnly Debated in Dr. Grant's Caie, i t Rep. \6. whether the Parishioners of St. Martins le Grand fhould pay 2 J. in the Pound Rate for their Horfes there, becaufe it was a Liberty exempted from London, and for that no Tithes ought to be paid for Houfes, without a fpeciai Cuftom, but it was adjudged that inch Tithes fhould be paid becaufe it may be reaibnably fuppoled that it was ufual to pay fb much for the Land before the Houfes were Built on it. In Dr. Layfeild\ Cafe, Hob, 1 1. A Modus was denied to pay for Tithes of Houfes in the Parifli of St. Clements Danes, without Temple-bar, becaufe where no Tithes are due de.jure, as they are not for Houfes, there can be no Modus for it, that being only an Abatement of the full Tenth part, but it was agreed that fiich a way of Tithing had been long tiled about London, and when the Statute took care of that City, the pla- ces adjoyning gained the fame manner of Tithing by Colour thereof. And tho' a Man (hould fuggeft that the Houfe was held of a Priory, which was difcharged of Tithes for all their PoiTef- fions, that will not prevail, becaufe there is a fubfequent Sta- tute which charges all Houfes in London, except thofe of Noble- men, Moor 912. 37 Hen. 8. cap. 12. Hfltiibi. SeeCnlbes.] Lambs pay a mixfc Tithe; but the pavment is ufual ly guided by Cuftom. If the Parifhioner hath fix Lambs or under, he (hall pay a Half- penny for every Lamb, and if he hath above that num- ber, then to pay one Lamb, this is a good Cuftom. The Tithe is to be apportioned with refpeft to the places where they are Engendred, brought forth and Nourifhed, and 'tis to be paid when they are Weaned. A Prescription to pay an Half-penny for every Lamb which be fhall Sell before May- day, without any other Tithe forthern, and he Sells them all before May-day, this is not good, for 'tis a meer fraud, 1 Rol. Abr.6^2, Plito 1. JLeao.] Lead is not Titheable dejure; but it pays Tithes in Derby fbire by Cuftom. 2UnufeUn.] So by cuftom Tithe may be paid of a Limekiln, tho there is nothing due de jure, 1 Rol. Abr. 642. Plito 7. but not of Lime, for 'tis parcel of the Freehold. Sopri of Crew.] Lops above 20 Years Growth pay no Tithes, *5 tlle branch is privileged as well as the Body of the Tree, M>or 762, 908-, 11 Rep. tf. k And To 'tis if the Tree was not privileged at the flrft L0J3- |ing, yet if after wards 'tis Lopped, no Tithes fhall be paid, t BrQWnl, 23. §0 So 'us if the Tree become Rotten and fit only for Fuel, be- caufe it? was once privileged, Moor c;oS. but juftice Crafe who Reportsthc fame Cafe informs us, that the Court was divided, Go. Eliz,. 100. • garble ant) tfjatlc |Slt0 ] Marble and Marie-Pits pay no Tithe?. .__, , it r i fl^att.] Matt of Oak or Beech, if Eaten by Hogs, then the Tenth of the Value of fuch Malt ought to be paid, but if Sold, then the Tenth Penny is due for Tithe. OjHlU,] As there are fcveral forts of Mills, lb the Tithes of them are different, as for inltance, the Tithes of Corn Mills are Prxdial. ; the Tithes of Fulling, or Paper-Mills are Perfo- nal, 1 Rol. Abr. 6^6. Plito 3,4. Copper, Corn, Fulling, Iron, Lead, Paper, Plate, Powder, Rape, S*n>, Stamping and Tin Mills, Of thefe Corn Mills only pay Tithes in kind as Mills, and that is the Tenth Toll-Difh ; and Corn-Mills Built before the Statute 9 Edvo. 2. are Tithe-free, therefore where a Suit is brought for Tithes of an ancient Mill, the Defendant mult fuggeft that the Mill is very ancient, and hath never paid Tithes, and he mult make Oath of the truth of this fuggeftion, for ail new Mills pay Tithes, 2 Cro. 429. If a Corn Mill fhould be built upon any Land difcharg- ed of Tithes, by any Modus the Mill ihall be likewife dis- charged, 1 Rol. Abr. 652. Plito ^. But this Cafe ieems to be unreafonable, and therefore 'tis not Law ; for the Profits of Lands and of fo'me Mills are of different natures ; the one pays a Predial, and the other a Perfonal Tithe, and fo are charged, not in refpeft to their real value as Lands are, but in refpe6t to the Labour of Men, 1 Rol. ^p.405. and therefore all Mills, except. Corn Mills, pay Tithes not as Mills, for they are only Engines of feveral Occupations, and the Perfons uting them pay Perfonal Tithes if they have been paid for 40 Years next before the Acl 2 E. 6. 2 Cro. 523. 2 Rol. Rep. 34. I Rol. Abr. 641, 19. If a Modus of 6 s. Sd. is paid for the Tithes of an ancient Corn Mill, and the Mill Stream fhould change its courfe by accident, and not by the a£t of the Party, and the Owner pulls down his Mill and rebuilds it to the Stream, the Modus ihall {till continue, but if he had diverted the Stream himf.lf, and then rebuilt the Mill to it, he ought to pay Tithes as for anew Mill, 1 Rol. Rep. 641,652. Plito 1. $Uhlfe.] Milk pays a mixt Tithe, 2 Brownl. 30. Sometimes 'tis Tithed by thcTenth Quart, -at the Parfonagc- Houfe, or any other place, Cro. Eliz,. 609: Moor 909. M m Bt't >3° €ft&e0. .1 ^'^^ngverytroublefome, khathbeenadiudsedtoDav die Tenth Meal, and no; the Tenth Quart at every Meal? and fome have been ofopimon that this Tenth Meal oueht to be carr.ed by the Ovvner to the Parfonage-Houfe, or tothe Church Porch but this mult be by Cuftom, for in all Cafes the Tithes are to be fet out, and pa.d where they arife, Raym 277 << r V$?F*, the/ Pa? C1'eele. and in other places neither Cheefeor M.Ik, but ibme fmall Rate, fo that The cuftom of the place is to be obferved. A/I^topaytheTenthCheefernade from M*rd*y till a^^assaaTS jr* that >4is pa^rtLeSbf S&.nC°PPer' ^ ^ ^ Ti«> fneSTifl^/0?^^ * fl,al! mention '* under the re- lpecti ve Titles to which it properly belongs, butthis I lhall ob- tllll '," W'V-"^ ,that where-ever all/ate s auedg ■ d there muft be feme benefit left for the Parlor,, tho'not the whole wh.clns due, and therefore to prefcr.be to be difena ged of Tubes ,n confiderat.on that he had employed all the Profits offuch La„d .to repair the Body of the Church, or to find o! ther neceftanes for the fame is not good, becaufe there s no recomper.ee for the Parfon ; but if i? had been o repair the Chancel tis otherw.fe, 1 Roll. Ahr. 649. Plko 8. Monaftenes. See Abby Lands. tfurfertw] Nurferies of young Trees pay Tithes, for tho* thele Trees are parcel of the Freehold, yet when they'areSold and kvered ,n order to be Tranfplanted into another place or X ' °r "V hC f3me Par,m- thev PW Tithes, otherwife all! or the grcateft part of the Parifh, might be converted into Nur- fenes,and fo the Parfon would have no Tuhes, Cro. Car. «6. Jo»eJ£6. 1 Roll. Abr. 637- Hardrestfo. " If the Owner pull them up he fliall pay Tithes, butifhe Sells them to another before they are Tranfplanted the Buyer lhall pay it, Hardres 380. 4>a|8.] Oaks above 20 years Growth, tho' n6t Timber, and only fit for Fuel, pay no Tithes, Moor «t, ' Timb"X°S Und6r 2° ^^ Gr0Wt"' wUch« >* for ^hatK.J If the Soil of an Orchard is Sowed or Planted, It tV£D P13" ^ve Tithes thereof, as well as of the Fruit of SEaisst they are of diftina ~> 2 *• *** it US? 'L™fa* '? di(Pa'ked? and converted into Tillage, it (hall pay Tithes jn kmdj but if there was* Modus before « 8wll continue ft,!!, 1 Roll, Rep. I76. ptr Qif™- Bui But this muft be undcrftood where the Modus was to pay fo much Money for all Tithes of the Pa»k, for if 'tis for all Tithes of the Deer in the Park, then 'tisotherwife, as forlii- ftance, if a Man prefcribe? to pay a Shoulder of every Deer Killed in the Park, or one Deer out of the Park, infuch Cafe, if'tis difparfced, the Cuttomis gone, and Tithe (hall be paid in kind; but if the Cuftom was to pay a Shoulder of Vcmfon generally or to pav ib much Venifon in lieu of all l.thes, and 'tis not faid out of the Park there, tho' 'tis diiparked, the Modus (hall continue. ■*. j In Conner and Andrews Cafe, the Court was divided : It was a Prohibition fuegefting a Modus to pay 2;. yearly, and a Shoulder of every Deer killed in the Park ; Hobert ana Ni- chols held, that he Modus ^ 2 s. continued, notwithstanding the Park was difparked, becaufe it was a fum certain, the other was but caiual ; but the other two Judges held that it was an entire Modus, tho' it confifted in diiiindt Matters, and therefore if part was gone (as they all agreed it was) the whole muft hkewifebe determined, and the Parton ought to have the Tithes in kind, and fo it was afterwards adjudged in Moor oqq. The principal Cafe is reported in Moor 863, Hob. 39* 1 Roll. Rep. 120. 1 Roll. Abr. 651. in which cafe they agreed that only 2/. had been paid, then it fhould continue fo thlL Partridges and Pheafants, if madeTame5 ©teafatttsan* pay a Perfonal Tithe, but if kept in a Wood j&amtDBHU enclofed, and their Wings are cut fo as they cannot fly out, and there they lay Eggs, and hatch Young ones, no Tithes (hall be paid for them, becauie, tho' under a reftraint, thev are fera natura, and are not re- claimed, for if their Wings were not dipt they would fly out of the Enclofure, 1 Roll. Abr. 6$6. Pino 5. ^attutc] See Agiflment: See Grafs. ¥>eafe. j If Peafe are gathered Green, to fpend in the Ow- ner's Family, they pay no Tithes, 1 Roll. Abr. 647. Plito II. perfonal ^tttje*,] By the Canon Law every Perfon ought to pay a Tenth part of his clear Gains, either by Trade or Merchandize, his Charges being dedu&ed ; but the Statute of 2 Edx. 6. retrains the Canon to fuch Perfons who had con- ftar.tly paid the fame within 40 Years before the making that f&tgectw. ] Pigeons ought to pay Tithes dejurc if they are Sold, but not if fpent in the Owner's Houfe, Het. 147. 1 ML Abr. 644. and the reafonis, becaufe 'tis a provifion to iup- port him in his Labour about other Affairs, for which the Par- ion may have Tithes, l Roll. Abr. 6^. riUo-l* 2 Roll. Rep. 7. n 1 3ut 53 2 'ttftfiecf. But this feems to be a very indifferent Reafon, becaufcin Tilhing the nature of the thing is to be confidered, and not where it is fpent. Now, if theplacc where Pigeons are fpent wouldmakethem not Tithcablc, when in their own naiure they ought to pay Tithes, then Corn, Piggs and Calves fpent in the Owner s Hcufe ftand upon the fame Reafon, and no Tithes would be paid tor them, which would be of mifchievous confluence to the Clergy, if it fhould be allowed to be Law. If a Man hath Pigeon-holes about his Houfe, and Pigeons encreafe there, which are fpent m his Family, he (hall pay no Tithes for them, i Roll. Abr. 644. Plito 6. 1p*S3*.] Piggs pay a mixt Tithe, in the fame nature with Calves, quod vide. ifcuarrlM.] Quarries of Coals, Slat, Stone, Gravel, Sand or Clay pay no Tithes, for they are parcel of the Inheritance, 1 Ml. Abr. 637. F. Plitoi. ' Illa&fng*] The tenth Cock being fet out, the Rakings of Corn are not Titheable, unlefs by Cuttom, for they are left for the Poor, Moor 278. r And. 195?. Thefe Rakings are properly the Scattering of the Com whereof Tithes have been paid, but it mutt be underftood of fuch Rakings which are not voluntarily and fraudulently left behind, Cro. Eliz,. 660. Moor 010. Therefore the fuggeftion in fuch Cafe mutt be, that they are minus voluntarie fparfa, and 'tis not fufneient to allege that they wercUpfaincolltctione, iMl.Abr.6tf. Plito 12. Cro. EL 702 2 Cro. 575. fBoor*.] Roots of Coppice- Grounds grubbed up, pay no Tithes, for they are parcel of the Freehold; they are neither Crefcentesox -Re nov antes, Adarch 58. 1 Ml. Abr. 6%j. Plito 7. &affron .] Saffron pays a predial Tithe, and 'tis account- ed inter mintttas decimas, therefore, tho' 'tis enacted /w Statute of 2 & 3 Edvo. 6. cap. 13. that Tithes fhall be paid asufual for 40 Years la ft patt, betore the making that Act,yct, if Corn hath been fowed in a Field for 40 Years, and the Parfonhad the Tithes, and the Field fhould be fowed with Saffron, the Vicar fhall have the Tithes, 1 Ml. Abr. 643. V. Plito 1. Cro. Eliz.. 476. Idem, Owen 74. Idem, Goulds. 1 49. Idem, Moor pop9 ^nit.] Tithes mutt be paid of Salt, but this is by Cuttom only. jbfoeaf.] See Corn. j&faep. See flBool.] If Sheep continue in the Parifh all the Year, they are to pay Tithe-Wool in kind, but if removed from one Parifh to another, the Parfon of each Parifh mutt have Cftf)C0. 53 J dUIfthcv ate fed in one Pari A. »n4 brought into another to Ctf sleerd about the Neck to prcferve them .from Vermin, th Wool is not Titrable, , M Ahr H^H- Sn lllrpwife if killed and fpent iti the Houie ot ine„ y*^? the fsirin, are not Titheable but the Wool is, . ftf..^. 647. /7iw. 10. • _.; - Years growth, which being cut renews again trom the fame Stock or Root, and it pays a predial Ti*e, (Tatts.l Tares cut ereen and g-veu to Plough ^attic pay noshes • but Tt may be a queftion whether a Prohibiten will b allowed upon a^eneral Suggeftian of this matter with- SaUedfdng a Culbm in the Parilh that no Tithes (hall be P^idfor inch r,«r«, Lane 16. Cro. Car. m. jona 357- I ™- Abr.6^0. Plito. 12. CiUS-l 7i/« are not Tithcable. ■ , 1 a,v Stater and Crete.] T«wicr-7re« and particularly Oak, A(h and Elm, above thea*e of twenty Years were discharg- ed of Tithes by the Common Law lo. g before the Statu e 45 S.,. for that Aft was in affirmance of the : Common Law ; and3 he reafon of this Privilege is, becaufe inch Tm are employed for Timber to build Houfes, Cro. El*, r. 1 Bmml. ?4Andifthey grow folong till they become rotten and fit only for Fuel, yet they pay no Tuhes, becaufe being once Privi- leged, itflrallnotbeloltbytlKirdecreafe, 0*. Ek*. 477« Colds. 145. yW«ir 541. .2 Cro. 100. I *J. ^*. 640. . So Tw; cut for Plough-boot, Cart-boot, Fencing, &c. nav noTith.es, tho' they are not Timber. P But a'll Trees not fit for Timber, and not put to the ufes aforefaid, tho* above twenty years growth pay 1. itties.; Cmkc«f.l There is a cafe in Adwr »j>. where lis hel* that Tithes ought not to be paid for Turhys or their Eggs but t,his mult be a midake, and of that Opinion was Sir Smon %utUt] 1 7Turfes ufed for Fuel pay a predial Tithe, and yet; tte v are parcel of the Soil, M m i tiwjs 534 Cttfjeg* •a&ttBettooot, fee aaoofi.] Underwood pays Tithes, but if ufed for fencing Corn or Pafture- Ground it pays none, Cro. Eliz,. 499. Moor 683. But then it muft be for fencing his own Corn, and the reafon is, becaufe the Owner may give away all his Under- wood to fence the Corn of other Men, and if fo the Parfon can have no Tithes of it. But 'tisunreafonable to fuppofe any fuch thing, and if it was probable to be done, yet the Perfon can have no prejudice by it if that Corn was enclofed, of which he had the Tithes, 1 Sand. 141. If the Owner will not ait his Coppice-Wood till above 20 Years growth, yet he (hall pay Tithes for it, efpecially if 'tis cut for Fuel, Sid. 300. £33a(r.] If there are large Waft Grounds and 'tis not cer- tainly known in what Parifh they are, the Cattle feeding there, {hall pay Tithes to that Parfon where the Owner dwells. toa*. ] Bees- Wax is Titheable de jure by the Tenth Pound, 1 R0l.Abr.6tf Plito. 1. t&ttlotog*] Tho' it may be Waft to fell Willows, becaufe in fome places they are ufed for Timber, but efpecially if they grow fo as to ihelter the Houfe from Storms, yet if they are felled, tho' above twenty Years growth, they {hall pay Tithes, Hob. 219. 1 Rol. Abr. 640. Q^ 8. C&oatu] Woad pays a predial Tithe, and it growing in the nature of an Herb, 'tis accounted inter minores decimas, Hat. 77. Idem. Cro. Car. 28. SaiooD*] Wood likewite pays a predial Tithe, and fome- times 'tis accounted alio inter minores decimas; as for inftance, it a Vicaridge is endowed with fmall Tithes, and the Vicar always had the Tithe of Wood, in fuch cafe it (hall be ac- counted a fmall' Tithe ; but 'tis generally efteemed to be great Tithes. But 'tis not Titheable if fpent in the Owner's Houfe, tho' it may be fo by Cutforn, for 'tis not discharged by the Law, I Rol. Abr. 644. Plito. 1. Cro. Car. 113. Het. 1 10. Yet if the Defendant fuggefts that it was burnt in his dwel- ling Houfe, by reafon whereof the Parfon had uberiores deci- mal, this is good, 1 Vent. 75. 1 Rol. Abr. 656. Tithes ought not to be paid for it where 'tis ufed (or fencing Corn, 1 Rol. Abr. 644. Plito. 2. So if 'tis cut and burnt to make Bricks to repair or enlarge the Owner's Houfe 'tis not Titheable, 1 Rol. Abr. 645. W1V0.8. Bue €ftl)C0* 515 But then fuch enlargement muft not be only for his Pleafurc, nor more then is necetfary for the Habitation of his Family, for if 'tis not fo alledged in the Suggestion it will be difficult to set a Prohibition, becaufe a general Sug^eftion that the Wood was burnt to make Bricks for the enlargement of his Houfe would be fo inconvenient, that it might deprive the Parfon of his Tithes, for he might build a Palace, i RoL Abr. 64c. Plito. 10. ,._ . _ _,. , If Wood Grounds have likcwifc Timber-trees growing on them and confifts for the molt part of fuch Trees, only iome fmall Bufhes and Underwoods intermixt, the Trees (hall Privilege the whole ; but if fuch Trees grow Sparfim znd the Underwood is the greateft part, then it muft pay Tithes tor 'Tis to be obferved that Wood is Titheable only by Cuftom, for before Arcbbifbop Stratford made a Canon that it fliould pay Tithes, it paid none, and as it is Titheable by Cuftom, fo it may be exempted from payment of Tithes, for prefcrip- tionsare allowed in non decimando for Wood in the Weld oj Kent and Sufix, but fuch a Prefcription was never allowed for Corn, becaufe that pays Tithes dejttre. A Cuftom that the Parfon hath emoyed fuch a Wood par- cel of the Mannor, &c. in fatisfadion of all Tithe- Wood within that Parifti is good, 1 RoL Rep, 355. \ So a Prefcripdon to pay the tenth Acre ftanding, is good, I RoL Abr. 645. Plito. 8. . Laftly, the manner of Tything it is by the Pole or Pearch, or by the Tenth Faggot or Billet according to the Cultom or the place. . .. CaiooU] This pays a mixt Tithe, and proportionable to the time the Sheep are in the Parifh 3 as for inftance, if for- ty Sheep yield eighty pound of Wool, and are depaftured in oneParifh for a whole Year, the Parfon {hall have eight pound of Wool, and by confequence but four pound it fed there only for half a Year, and fo two pound for three Months, and but the Tenth of the twelfth part of the Wool if they are fed there for one Month and no longer. . If Sheep are killed and fpent in the Owners Houfe no Tithes are to be paid for their Skins, but their Wool is Tithe- able, 1 RoL Abr. 646. Plito. 18. And 'tis to be obferved, that the Tithe-Woot ought to be paid on the day of (hearing the Sheep. "here are feveral Prefcriptions relating to Tithe-vV ool, as if a Man hath under ten Fleeces then to pay a penny forcach M m 4 Heece, 536 fttle* Fleece, and if more, then to pay the tenth part (me vifu & tacltt of the Parfon, but this is an unrcafonable Prefcription. Neither is it a good Modw to pay the tenth pound for Tithes of Wool, if he doth not jfhew that he is to pay ibmething for if Tithe under ten pound ; becaufe otherwife as to what is un- der ten pound, 'tis a Modw in non decimando, i Rol. Abr. 648. Plito. 4. But Ms a good Modm that in confideration he did wind the Wool into a Fleece, to be difcharged of the Tithes of that Wool which he fheered from the Necks of the Sheep a Fortnight before and after Michaelmas, becaufe if appears fuch fheering could not be for the gain of the Wool alone, but to preferve the Sheep from Vermin, 1 RoL Abr. 6ty.Plito. 5. So a Suggeftion to pay the tenth part of Wool of all the Sheep he had before Lady-Day, and which he (heared or fold, and that it was to be in fatisfa6tion of ali the Wool of fuch Sheep which fhould be brought into the Parifh after Lady- day is good, 1 RoL Abr. 649. So 'tis a good Modus that in confideration a Parifhioner hath time out of Mind paid Tithe- Wool of all Sheep at the Shearing, as well of thofe which he bought but two days be- fore the ^hearing, as thofe which were kept all the Year in the Parifh, that he flhould be difcharged of the Tithes of thofe he fboHldfell but two days before the Shearing, 1 Rol. Abr. 648, Plito. 1. Title. 'T'HIS word as it relates to Ecclefiaftical Perfons^ was at .** firft only the entnng a Priefts name in the Bilhop's Re- giftry, by which he was made one of his Clergy, and from which he could never be difcharged without the Bifhop's con- fent ; and in thofe days if a Man was not owned by fome Bifhop, it wasufualtofay that he was fine Titulo. I But this was before there was any Parochial Divifion, for afterwards the word Title came to be applyed to Parifh Churches, for Parochia is accolens adfacram ut poptlm lllorur* Cttr. 2 Inft. }$j, ft dilatation, 549 It can never commence upon a Prefentation which is void in its felf, as for inftance, if a Corporation doth miftake their name in the Prefentation, thoJ the Clerk is admitted, and the fix Months pafs, that will not make an Ufurpation, becaufe the Presentation was void, i Bulji.gu 2 Cro. 248. So if the Prefentation is upon a Simonaical Contract that will not make an Ufurpation upon the right Patron for the reafon before mentioned ; for in iuch cafe the Prefentee was never lawful Incumbent, 2 Roll. Abr. 370. Co. Lit. 120. So if a Perfon is preiented to a Donative, and afterwards Admitted, Inftituted, and Inducted, this will not make an Ufurpation becaufe a Donative is not prefentable. So where the Queen recites] in her (b) Prefentation a Title which fhe had not, this will not make an Ufurpation, for it is void. (2.) The Prefentation muft be to a void Church, that is, where the Avoidance is fuch that the Patron is not bound to prefent till notice, but may prefent if he pleafe wi.hout no- tice ; as if the Clerk is deprived for a Crime, the Patron may take notice of it if he will, and may prefent another, but he is not bound to do it, became the Church is not abfolutely void to him, fo that a Lapfe may incur till he hath aclual notice of the Deprivation. So upon a Relignation the Church is void, and the Patron ought to have notice of it ; but if a Stranger prefents in fuch cafe, and his Prefentation is not void in Law, but his Clerk is induced on it, and continues in PoiTefTion for fix Monrhs, this is an Ufurpation, and he cannot be removed, becaufe the InduBion is a notorious A6t, of which the Patron (c) ought to take notice at bis Peril ; but if fuch Refignation had been made upon any Contrivance, and on purpofe to de- fraud the Patron, there 'tis otherwiie. There is another thing to be obferved, viz. that formerly where an Inheritance of an Advowfon was gained by an Ufurpation, there muft be no manner of privity between the Ufurper and the Perfon upon whom 'tis made. Firft, there muft be no privity (d) in Blood between them, for if an Advowlon defcends to Coparceners, and one Ufurpsupon the turn of the other, yet that will not put her out of PolTeffion, but flie may prefent when her turn comes. (h) Hob. 332. (t) 2 Rell. Abr. 3*9.PUto 3. (d) a Koll.Akr. 372. Plftoi y. But ss° ffttixtMmv But now the Law is otherwife, for where there are three Coparceners (e) and they make Partition to prefent by turns, and an Ufurpation is made upon the turn of one, it fhall put all out of Poffeffion. So there was to be no privity of Eitate (/) between them, and therefore if a Leflor for Years of an Advowfon ufurps upon his LefTee, this bars him of that Prefentation, but not of the next turn. But now if there are two Tenants in Common, or Jointe- mants of an Advowfon, (g) and one prefents alone, this doth not put the other out of PofTefllon, for upon ths next Avoidance they may join in the Prefentation, and this is by reafon of the privity of Ettate which is between them. But there are fome Advowfons which are protected by Law from all manner of Uiurpations, as for inftance, .thofe Ad- vowlbnsof which the Queen is feifed in her own Right. Tis true, the Law was held otherwife formerly, vU. that a double Ufurpation * diverted the Queen of the Inheritance of her Advowfon, and that fhe fhould be put to her Writ of Right to recover it, as a common Perfon is upon a ilngle Ufurpation. But this. was denied by my Lord Anderfon (h) in the cafe of the King againft the Bifhop of Winton ; for as he cannot be difpoflefled of Land, fo he cannot be put out of poffeffion of an Advowfon, and he laid it down as a Rule, that of things tranhtory he may be put out of Poffeflion, but not of an In- heritance. This learned Judge was over-rukd by three more; butupon a Writ of Error brought, their Judgment was reverfed, for an Ufurpation upon the (/) Queen s Advowfon, andaPlenarty for fix Months binds her only as'to the PofTeffion, and not as to the Right of the Advowfon ; fo that fhe may remove the Ufurper at any time by a Judgment in a Omre Impedit. And the Law is now fettled (k) that neither two -or more Ufurpations do difpoilefs the Queen of her Prefentation, for as to her the Incumbent is a TrefpalTer (/) and as fhe may re- move hub whilft living, fo (he may prefent after his Death. \ {e) 2 Vent. 39. (/) 2 Roll. Abr. 371. Wi» * „ (i> * **lti*- 171- Piito.12. i And. 63. -Dyer 351. • (fc) 2 Cro. 54. ;9«Oji U*. 1 Brownl. 166. Much. 90. 2 Roll. Abr, 371- «»»• *• (O 0wcn 43' 3 And, Si. Moor. 338. (0 Moor 421, Cjo. His. ;**. • < ■ ft CJffitatiort; sst So likewife Advowfons of which Biihops are feized in right of their Churches are protected againft Ufurpations, which may be to the prejudice of their SuccelTors, tho1 fuch Ufur- pations do bind during the life of the Bifnops themfelves, yet after their deceafe, the Succeflbrs may have a Quare Impedit («) either in the life time of the Ufurpers, or prefent to the next turn after their death, and this is by vertue of the Statute, I ElU. which retrains Alienations by Bifhops. And the Law may be the fame upon the Statute, 13 Eliz* cap. 10. as to all other EccUftaflkal Perfons who are feized of Advowfons in right of their Churches, for they are reftrained by tqat Statute from making Efiates other then for 21 Years or three Lives. (m) 2 Cr». 671, }onp< 4* FINIS.