I do allow the Printing of this Book, entitled An abridgement of the Ecclesiastical Laws.  
FRA: NORTH.   

Imprimatur hic Liber, cui Titulus AN abridgement OF THE. ECCLESIASTICAL LAWS.  
Guil. Sill, R. P. D. HENR. Episc. Lond à Sacris Dom.   

Repertorium Canonicum; OR An abridgement OF THE ECCLESIASTICAL LAWS OF THIS REALM, Consistent with the TEMPORAL: WHEREIN The most Material Points relating to such Persons and Things, as come within the Cognizance thereof, are succinctly Treated.  
Principio Comperto facile est adjicere, & Reliquum Cooptare;  Tho. Cana. in Proaem. Decret. nu. 3. T. 1. 
By JOHN GODOLPHIN, LL. D.  
LONDON, Printed by S. Roycroft, for Christopher Wilkinson at the Black Boy against St. Dunstan's Church in Fleetstreet, 1678.   

THE Introduction.  
THE Question which King Henry the Eighth did once put to both the Universities of this Realm, 
The King's Supremacy.  viz. An aliquid Authoritatis in hoc Regno Angliae Pontifici Romano de jure competat, plusquam alii cuicunque Episcopo Extero? being Resolved in the Negative, and that Resolution ratified in the Convocation An. 1534. an Act of Parliament passed about two years after for the extinguishing of that Papal Authority in this Realm. This succeeded so well in consequence of what the Convocation An. 1530. had before acknowledged him, viz. The supreme Head on Earth of the Church of England, that that Supremacy was likewise after confirmed by Act of Parliament to him, his Heirs, and Successors. This is that Supremacy here tenderly touched at in the first Chapter of the ensuing abridgement, and without which all that follows would be but insignificant and disfigured ciphers. When King Henry the Eighth was thus both Parliamentarily and Synodically invested herewith, although it was with all the privileges and preeminences incident thereto, yet no more accrued to the Crown thereby, than was legally inherent in it before; yet in regard of the Usurpations, that in divers Kings Reigns had successively invaded the Rights of the Crown in that most splendent Jewel thereof, another Convocation in An. 1532. (to give the King as it were, Livery and Seisin of the said Supremacy) promised him in verbo Sacerdotii, That they would not from thenceforth Assemble in any Convocation or Synod without his Majesty's Writ, nor make any Canons or Constitutions without his licence and consent, nor execute the same until they were Ratified under the Great Seal of England. All which was done without the least diminution of any Archiepiscopal or Episcopal Power or privileges, in the free exercise of that Ecclesiastical Jurisdiction which they anciently enjoyed. The whole of this Design being only to eject the Roman Pontifex, and annul his Usurpation in a matter of that weighty Consequence, to which the Crown was so undoubtedly entitled: And this only in a way consonant to that Allegiance, which every Subject without distinction owes to his lawful Sovereign in all matters, as well Ecclesiastical as Civil, within his Majesty's Realms and Dominions; 
Vld. Heyl. Cypr. Angl. p. 1.  whereby the Clergy as well as Laity, being all Subjects alike, might be reduced not only to their Primitive Obedience unto, but also to their dependence on their own Sovereign in preference to any foreign Potentate whatever.— That the supreme Civil Power is also supreme governor over all Persons, and in all Causes Ecclesiastical, 
In his Cases of Conscience, lib. 3. ch. 3. fol. 544.  is a Rule (says the Learned Bishop Taylor) of such great necessity for the conduct of Conscience, as that it is the measure of determining all Questions concerning the Sanction of Obedience to all Ecclesiastical Laws, the duty of Bishops and Priests to their Princes, the necessity of their paying Tribute, and discharging the burdens, and relieving the necessities of the republic. 
Lib. 3. cap. 4. fol. 600. nu. 4.  It was never known (says the same Author) in the Primitive Church, that ever any Ecclesiastical Law did oblige the Catholic Church; unless the Secular Prince did establish it. The Nicene Canons became Laws by the Rescript of the Emperor Constantine, says Sozomen. When the Council of Constantinople was finished, the Fathers wrote to the Emperor Theodosius, and petitioned Vt Edicto Pietatis tuae confirmetur Synodi sententia. The confirmation of the Canon and Decrees of the great Council at Ephesus by the Emperor is to be seen at the end of the Acts of the Synod. And Marcian the Emperor wrote to Palladius his perfect a Let●er, in which he testifies, that he made the Decrees of the Council of Chalcedon to become Laws, Ea quae de Christiana fide à Sacerdotibus qui Chalcedone ●convenerunt, per nostra Praecepta Statuta sunt, etc. Thus also the Fathers of the Fifth General Synod petitioned Justinian to confirm and establish their Canons into a Law. The same Prince also Published a Novel, in which he commands Vim Legum obtinere Ecclesiasticos canon's à quatuor Synodis, Nicena, Constantinopolitana prima, Ephesina prima & Chalcedonensi expositos & confirmatos. Vid. Concil. Tolet. All which confirms it for a Truth, That even in the Primitive Church the Supremacy in matters Ecclesiastical was in the supreme Secular Prince.  
Touching Archbishops, 
Archbishops, and Bishops:  our Malmesbury confesses, that in the Ancienter times of the Britain's it was unknown where the archbishopric was: At the Council of Arles, An. 314. Silvester the Pope is but plain Bishop, as appears by the Nomenclature of those that were at that Council. The High Title of Archbishop was for a long time in use in the Eastern Church, before it came into the West 
a Spelm. in Archaeologo. . For whereas our Beda tells us, That Augustine was Ordained Archbishop of the English Nation by Etherius Archbishop of Arles aforesaid, he therein follows the mode of speaking current in his own times: for Gregory the then Pope, in his several Letters written to them, affords neither of them that Title; no, not when he bestows the Pall upon Augustine, and gives him the precedency and priority in respect of York and all other Bishops of Britain 
b Bed. Eccl. Hist. lib. cap. 1. 27. . Yet the incomparable B. usher affirms, that they did not quite deny Archbishops among the Old Britain's (for he proves they had such;) but that all Memorials were lost, where the Archiepiscopal or Patriarchal Seat resided 
c D. Usserius, in primord. pag. 97. . For although London hath been for many Ages the Chiefest of Britain, and was no less than 1300 years since reputed Vetus Oppidum, and Augusta 
d Ammian. Marc. lib. 14. . yet a Modern Writer of great Learning and Authority, would have York as the more Ancient Metropolis of the diocese of the Britain's 
e Philip. Berterius, Pithanon Diatrib. 1. c. 3. fin. ; and that not only because it was a Roman Colony, which London was not, as Onuphrius (contrary to so great and plain Authority of Tacitus) doth affirm 
f Onuphr. in Imperio Romana. : but also, for that the Emperor's Palace, and Praetorium likewise, Tribunal or chief Seat of judgement was there; whence by the Old Historian Spartianus it was called Civitas by way of excellency 
g Spartian. in Severo. vid. Burt. Com. in Anton. pag. 83, etc. . It must be acknowledged, that the very Original of things are to us much clouded in obscurity and uncertainty; yet he that duly consults Antiquity, will find, That what Radulphus de Diceto writes touching the Original of Episcopacy and Archiepiscopacy in Britain, seems to have the best Analogy with the truth, comparing one Antiquary with another touching that Subject. This Radulphus de Diceto was Dean of London, a very Ancient Historian, he wrote the History of England, from A. 1147. to 1193. in a Book entitled Imagines Historiarum; and in the Prologue to his Chronicle Abbreviations, says, That Augustine (who by Pope Gregory was sent into England. An. 600.) after he had Converted Ethelbert King of Kent to the Christian Faith, went in the year 602. to Arles, where he was Consecrated Episcopus Anglorum by Etherius Archbishop of that place; and being returned into Britain sent Laurentius the Presbyter, and Petrus the Monk to Pope Gregory, giving him an account of Britain's being converted to the Faith, and himself made Bishop thereof: Whereupon the said Gregory sent them back into England, and with them several Divines to preach the Gospel in this Isle, among which the Chief were Mellitus, Justus, Paulinus, and Ruffinianus, by whom he also sent the Pall to Augustine, and at the same time wrote him in what manner he should Constitute Bishops in England, and that in haec verba, viz. Per locos singulos 12 Episcopos ordines, qui tuae subjaceant ditioni●, quatenus Lundoniensis Civitatis Episcopus semper in posterum à Synodo propria debeat Consecrari, etc. Ad Eboricum vero Civitatem te volumus Episcopum mittere, quem ipse judicaveris Ordinare. Ita duntaxat, ut si eadem Civitas cum finitimis locis Verhum Dei receperit, ipse quoque 12. Episcopos ordinet, & Metropolitanis honore fruatur. Quem tamen tuae Fraternitatis volumus dispositioni subjacere. Post obitum vero tuum ita Episcopus quos ordinaverit praesit, ut Lundoniensis Episcopi nullo modo ditioni subjaceat. Sit vero inter Lundoni & Eboricae Civitatis Episcopos in posterum honoris ista Distinctio, ut ipse prior habeatur qui prius fuerit Ordinatus. Tua vero Fraternitas Episcopos quos ordinaveris, qui vel per Episcopum Eboracae fuerint Ordinati, Sacerdotes etiam totius Britanniae Subjectos habeat 
h Hist. Angl. Script. Antiq. Radulph. Abbre. Chron. Col. 435, 436. . After the receipt of these Orders from Pope Gregory, the Bishops of Britain were convened to a Conference by Augustine, he having first Ordained the said Laurentius as his Suffragan, the said Mellitus Bishop of London, and the said Justus Bishop of Rochester: About which time King Ethelbert built St. Paul's Church London, or re-edified the same 
i Beda, l. 2. c. 3. . About this time also it was, viz. An. 608. that Pope Boniface obtained of the Emperor Phocas, That the Church of Rome should be the Head of all other Churches, (That of Constantinople having till then assumed that Title) the which was after Decreed sub Anathemate in a Council of 62 Bishops. Afterwards the the said Laurentius, Mellitus, and Justus, became Archbishops of Canterbury successively, viz. Laurentius in An. 615. Mellitus in An. 622. and Justus in An. 626. according to the computation of the said Radulphus; by the last of which Paulinus was Ordained Archbishop of York 
k Bed. lib. 2. cap. 9 , and to which Justus Pope Boniface wrote in haec verba, viz. Authoritati beati Petri praecipientes firmamus, ut in Dorobernia Civitate semper in posterum Metropolitanus totius Britanniae locus habeatur, omnesque Provinciae Regni Anglorum praefati loci Metropolitanae Ecclesiae subjiciantur. Again, the precedency of the See of Canterbury is recorded by the said Rodolphus in these words, viz. Sicut Cantia subjicitur Romae, quod ex ea fidem accepit, ita Eboricum subjicitur Cantuariae, quae eo Praedicatores misit. Sicut igitur sedes Cantuariae prima fuit in fide, prima sit in honore. After Justus, Honorius was made Archbishop of Canterbury, whom Paulinus consecrated at Lincoln; to whom Honorius Pope wrote in haec verba, viz. Cum Dorobernensis Antistes, vel Eboracensis de hac vita transierit, is qui superest habeat potestatem alterum ordinandi. 
It is Reported, That Fridona a Saxon was the first English Archbishop, and of the See of Canterbury in the Seventh Century, about the year 656. Fuller. Church-Hist. Cent. 7. p. 84. nu. 85.  Bed. lib. 2. cap. 16. Si de Consecrationibus Archiepiscoporum Cantuar. contrarium aliquid inveneris in Authentico Libro, quam in hoc volumine reperiatur, adquiescam in omnibus. And in the year 632. Pope Honorius wrote unto Honorius Archbishop of Canterbury in these words, viz. Tuae Jurisdictioni subjici praecipimus omnes Angliae Ecclesias & Regiones, & ut in Civitate Dorobernia Metropolitanus Locus & honour Archiepiscopatus, & Caput omnium Ecclesiarum Anglorum semper in posterum servetur.  
That the Archiepiscopal Seat at York is likewise of very great Antiquity, is evident by what is forementioned touching Paulinus Archbishop thereof above one Thousand years since: Our Learned Antiquary tells us, Ex Patriis Scriptoribus, That York was adorned with an Episcopal Seat by Constantius; But if so, or if that be the truth which is recorded of Paulinus aforesaid, how then could Faganus, sent hither by Pope Eleut herius to King Lucius, to plant the Christian Religion, be (as reported) the first Archbishop thereof 
l Anonym. qui de Archiepisc. Ebor. scripsit. An. 1460.  or how could King Lucius place there one Theodosius, which yet is also affirmed 
m Harris. descrip. Britan. l. 1. c. 7. ? Or how could Samson under the same King be Bishop of York? as appears by Godwin, who yet suspects it, in regard that at the first entertainment of Christianity among us, nor Hebrew, nor Greek Names of the New Testament were so rise among the Britain's; and indeed this Samson is more generally reserved to some Ages after, till King Arthur's time. Thus the Original of things (as aforesaid) seems full of obscurity and uncertainty; yet it is most probable, that the first Bishop of York was not till Constantine's days; and we shall find this Bishop at Arles, in the Council there held about the year 314. whither (as himself writes in his Epistle to Chrestus Bishop of Syracuse) 
n Euseb. Eccl Hist. l. 10. c. 5.  he summoned (to hear the Cause of the Donatists) many Bishops from divers places. 
Pag. 9  In the last Edition of this Council, published by Jacobus Sirmondus at Paris, among other Subscriptions thereunto, you have out of Britain these following, viz. 
See the admired Selden, ad Eutichii Origines, pa. 122.  Eborius Episcopus, de Civitate Eboracensi, Provincia Britannia. Restitutus Episcopus, de Civitate Londinensi, Provincia superscripta. Adelphus' Episcopus, de Civitate Colonia Londinensium, exinde Sacerdos Presbyter, Arminius Diaconus. From which Council at Arles it may be observed, (1) That York was no archbishopric at that time, as neithet indeed was Rome itself. (2) That Eborius Bishop of York at this Council takes place of Restitutus Bishop of London, where (as some suppose) the Primacy always remained, till translated to Canterbury. Whether Constantine the Great (who is supposed) to have adorned York with an Episcopal Seat, as aforesaid) were Born there, and not elsewhere, as some conceive, is not easily, at least not expressly proved out of the Ancients, says a Learned Antiquary of Late times; 
Burt. Com▪ on Antonin. fo. 81.  yet (says he) That Authority seems to be drawn from them, which the ambassadors of England made use of, and that in the hearing of the Learned World then, both at the Council of Constance, An. 1414. as also at that of Basil, An. 1431. At the Council of Constance, there being a Contest about Precedency between the English and French ambassadors, the English have these words, viz. Domus Regalis Angliae Sanctam Helenam, cum suo filio Constantino Magno Imperatore, nato in urbe Regia Eboracensi, educere comperta est: The Royal House of England, it is known for certain, brought forth Helena, with her Son Constantine the Great, Emperor, Born in the Royal City Eboracum. Likewise, the English at Basil opposing the Precedency of Castille, say thus, viz. Constantium illum Magnum, qui Primus Imperator Christianus (so are their words) Licentiam dedit per universum Orbem Ecclesias constituere, immensa ad hoc Conferens bona, Peternae natum in Eboracensi Civitate: That Constantine, who being the first Christian Emperor, gave leave to build Churches throughout the World, was Born at Peterne in the City of York. By this they mean Bederne, a college of Vicars there, sometime serving the choir, which (as also Christchurch) called in Ancient Charters Ecclesia Sanctae Trinitatis in Curia Regis, is verily thought to have been part of the Imperial Palace in old time; which seems the more probable by what Herodian writes, viz. That Severus the Emperor, and his eldest Son Antoninus, sat at York about Private and Common affairs, and gave their judgement in ordinary Causes 
o Herod. Hist. lib. 3. , as in that of Coecilia about recovery of Right of Possession; The Rescript or Law of which matter is to this day preserved in the Code 
p C. de Reivindicat. , whereon the Learned Cuiacius of Great Britain hath made very remarkable Observations 
q Seld. Anaect. Angl. Brit. ib. 1. cap. 7. . This was that Septimius Severus, Emperor of Rome, and Master of the World, who in this Isle breathed his last, and who, when he saw there was nothing to be expected but Death, called for the urn wherein he had appointed his Ashes (after the Ossilegium 
r Ossilegium, or the gleaning up of his Bones.  should be put, and viewing it very exactly, Thou shalt hold (said he) the Man whom the World could not contain 
s Dio. Cassius Hist. Rom. l. 76. . No wonder then, that this City of so great Renown and Antiquity, was adorned with an Archiepiscopal Seat above a Thousand years since, as aforesaid; yet it never had those high privileges or Pterogatives which were, and are peculiar to the Archiepiscopal See of Canterbury, whereof the Power (next under the Crown) of convening Councils and Synods is not the least. Gervasius in his Chronicle de Tempore H. 2. tells us, That RICHARDUS CANTUARIENSIS Archiepiscopus totius ANGLIAE Primas & Apostolicae Sedis Legatus, Convocato Clero ANGLIAE, celebravit Concilium in Ecclesia Beati PETRI ad WESTMONASTERIUM 15. kal. Junii Dominica ante Ascentionem Domini An. 1175. In hoc Concilio ad dextram Primatis sedit Episcopus LONDONIENSIS, quia inter Episcopos CANTUARIENSIS Ecclesiae Suffraganeos DECONATVS praeminet dignitate: Ad sinistram sedit Episcopus WINTONIENSIS, quia CANTORIS officio praecellit.  
The Church when disdiocesaned by Death, 
Guardians of the Spiritualties.  Translation or otherwise, or quasi viduata whilst the Bishop is employed about Transmarine Negotiations in the Service of the King or Kingdom, the Law takes care to provide it a Guardian quoad Jurisdictionem Spiritualem, during such vacancy of the See or remote absence of the Bishop, to whom Presentations may be made, and by whom Institutions, Admissions, etc. may be given; and this is that Ecclesiastical Officer, whether he be the Archbishop, or his Vicar General, or Deans and Chapters, in whomsoever the Office resides, him we commonly call the Guardian of the Spiritualties. The Power and Jurisdiction of this Office in the Church is very Ancient, and was in use before the time of King Edward the First; it doth cease and determine so soon as a new Bishop is Consecrated to that See that was vacant, or otherwise Translated, who needs no new Consecration. This Ecclesiastical Office is in being immediately upon the vacancy of an Archiepiscopal See, as well as when a bishopric happens to be vacant. Beside the Presentations, Admissions, Institutions, etc. aforesaid, that this Officer is legally qualified for, he may also by force of the Act of Parliament made in the Five and twentieth year of King Henry the Eighth, grant Licenses, Dispensations, Faculties, etc. which together with such Instruments, Rescripts, and other Writings as may be granted by virtue of the said Statute, may be had, made, done, and granted under the Name and Seal of the Guardian of the Spiritualties: And in case he shall refuse to give the same an effectual dispatch, where by Law it may and aught to be granted, in every such case the Lord Chancellor of England, or Lord Keeper of the Great Seal, upon Petition and Complaint thereof to him made, may issue his majesty's Writ directed to such Guardian of the Spiritualties, requiring him by virtue of the said Writ, under a certain penalty therein limited by the said Lord Chancellor or Lord Keeper, to grant the same in due form of Law; otherwise (and no just and reasonable cause showed for such refusal) the said penalty may be incurred to his Majesty, and a Commission under the Great Seal issued to two such Prelates or Spiritual persons as shall be nominated by his Majesty, impowring them by virtue of the said Act to grant such Licenses, etc. as were so refused to be granted by the Guardian, etc. as aforesaid.  
The first thing in order to the Election of a Bishop, 
Congé d'Eslire, Election, etc.  in the Vacancy of any Episcopal See, is (and ever hath been since the time of King John) the Royal Congé d'Eslire, which being obtained, the Dean and Chapter proceeds to Election. It cannot legally be doubted, but that the consent of the Dean is not only requisite, but also necessary to the Election of a Bishop, as appears by an Ancient Contest above five hundred years since, between the Dean and Canons of London touching the Election of Anselme. Soon after King Stephen came to the Crown, he convened a Council at Westminster, vocati sunt ad Concilium (says an Historian) willielmus Decanus Lundoniae, 
Radulph. de Diceco Abbre. Chronic. de Reg. Steph. R.  siuml & Canonici. Cum autem haberetur Tractatus de Concilio Lundoniensis Ecclesiae tunc vacantis, nec in aliquem possent unanimiter convenire, recesserunt à Decano Canoni corum multi, citra conscientiam ejus ANSELMUM Abbatem in Episcopum Eligentes. Canonici vero, quos Decanus habebat secum in Mensa diebus singulis, Appellaverunt, nec Regis occurrerunt offensam. Canonici quidem alii, quia quod fecerant, tam Regi quam toto Concilio videbatur iniquum, Regis indignationem plurimam meruerunt, quorum aliqui bonis suis spoliati sunt. The Pope afterwards having on this occasion a solemn Conference with his Cardinals, Albericus Hostiensis Episcopus, quod sequitur pronunciavit in Publicum, Quoniam Electio Canonicorum Lundoniensium citra conscientiam & Assensum Decani facta fuit, cujus est Officium in Eligendo Pastore suo de jure primam vocem habere, Nos eam auctoritate beati Petri devocamus in irritum. So that according to this Ancient precedent, the Election of a Bishop may not be without the consent of the Dean; yet this we find upon Record nigh as Ancient as the former; That where at present there was no Dean, there the Election of the Bishop hath been by the Canons alone, Canonici Saresbirienses Decanum non habentes ad praesens, 
Idem de Reg. R. 1.  à Rege prius impetrata Licentia, Fratrem suum & Concanonicum Herebertum Cantuariensem Archidiaconum, Assensu Communi solemniter in Episcopum Elegerunt. Electionem factam in Publico recitavit Walterus preceptor: Electioni factae praebuit Rex Assensum, quam & Hubertus Cantuariensis Archiepiscopus Auctoritate propria Confirmavit, etc. Consonant to which method is the Act of Parliament made in the 25. of H. 8. whereby it is Enacted, That on the vacancy of every bishopric, his Majesty should issue out his Writ of Congé d'Eslire to the Dean and Chapter of the Church so vacant, enabling them to proceed to Election of another Bishop; which Election being returned by the said Dean and Chapter, and ratified by the Royal Assent, his Majesty should issue out his Writ to the Metropolitan to proceed to the Confirmation of the party Elected, and taking to himself two other Bishops at least, to proceed to Consecration, in case he had not before been Consecrated Bishop of some other Church.  
The place of Consecration of Bishops was anciently at Canterbury, as the Mother-Church not only of that Province, but of all England; For when in the time of R. 1. An. 1192. a Bishop of Worcester Elect was to be Consecrated, and Westminster the place designed for that solemnity according to the Pope's Command, it was opposed by the Prior and Covent of Christ-Church in Canterbury, and at a time when the Archbishop thereof (whose presence could not but have strengthened that opposition) was absent; yet the said Prior insisting on the privileges and customs of the Church of Canterbury, opposed the said place of Consecration, as appears by his Letter to the Bishop of Ely, the Pope's Legate, and other Bishops of that Province, in haec verba, Reverendis in Christo Dominis & Fratribus W. Dei gratia Heliensi Episcopo Apostolicae sedis Legato, Domini Regis Cancellario, caeterisque Episcopis Cantuariensis Ecclesiae Suffraganeis, O. Prior & Conventus Ecclesiae Christi Cantuariae salutem ab Auctore salutis. 
Chron. Gervas'. de Temp. R. 1.  Noverit Sanctitas vestra, Nos ad sedem Apostolicam appellasse, ne Wigorniensis Electus alias quam in Ecclesia Cantuariensi, sicut moris est, Consecretur, & ne quis vestrum, qui indemnitati Ecclesiae Cantuariensis vinculo Professionis providere tenemini, alias quam in eadem Ecclesi● ejus Consecationi interest praesumat. And at a Synod held at Westminster under P. Honorius 2. in the Reign of H. 1. An. 1126. it was Ordained, That at the Consecration of Bishops nothing should by way of Offerings be exacted or by force required. Statuimus & Apostolica Authoritate Decernimus, ut in Consecrationibus Episcoporum, etc. nil omnino per violentiam, nisi sponte oblatum fuerit, penitus exigatur. Simeon. Dunelm. Hist. de Gest. Reg. Angl. The like you have Decreed at another Synod held also at Westminster under P. Innocent. 2. in King Stephen's Reign, An. 1138. Apostolica authoritate Sancimus, ut in Consecrationibus Episcoporum ne quicquam ab Episcopo vel Ministris ejus exigatur. Hist. Richard. Prioris Hagustald. de Gest. Reg. Steph. In the year 1123. which was in the Reign of H. 1. at the Council of Three hundred Bishops convened at Rome, P. Calixtus 2. being precedent, it was Decreed, That no Bishop should be Consecrated, unless he were first Canonically Elected. Nullus in Episcopum nisi Canonice Electum Consecret, quod etsi praesumptum fuerit, & Consecratus & Consecrator absque recuperationis spe deponatur. dict. Sim. Dunelm. Hist. As that Canon was not in being, so the matter thereby ordained, in all probability was far from being observed, when Plegmundus Archbishop of Canterbury, whom P. Formosus honoured with the Pall, Consecrated no less than Seven Bishops in one day, in the two and twentieth year of King Alured. Chron. Johan. Bromton, Abbatis Jornalensis. When a Bishop is Consecrated, then may he Consecrate, viz. Churches, etc. and may Ordain Deacons, etc. But it was long since provided by the Council of Lateran, under P. Alexander, That the Bishop should not confer Holy Orders on any that were not then, or speedily to be provided with an Ecclesiastical Living, Episcopus, si aliquem sine certo Titulo, de quo Necessaria vitae percipiat, in Diaconum vel Presbyterum Ordinaverit, tam diu ei necessaria subministret, donec ei in aliqua Ecclesia Convenientia stipendia militiae clericalis assignet, nisi talis forte, qui Ordinatur, extiterit, qui de sua vel paterna haereditate subsidium vitae possit habere. Can. 9 And as touching the Bishops Consecrating of Churches, it being vulgarly supposed that there is a considerable piece of Superstition therein, it cannot but be seasonable here to inquire whether so or no, or whether the Consecration of Churches be not truly Primitive, according to the judgement of the Learned Dr. Heylin. To which purpose you have here his very words, viz. The place of public Worship is called generally (according to the style of the Ancient Fathers) by the name of the Church: For Consecrating or setting apart whereof to Religious uses, I find (says he) so great Authority in the Primitive times, as will sufficiently free it from the guilt of Popery: Witness the Testimony which Pope Pius gives of his Sister Eutorepia in an Epistle to Justus Viennensis, An. 158. or thereabouts, for setting apart her own House for the use and service of the Church: Witness the Testimony which Metaphrastes gives of Felix the First, touching his Consecrating of the House of Cicilia, about the year 272. And that which Damasus gives unto Marcellinus, who succeeded Felix, for Consecrating the House of Lucinia for religion's uses: Witness the famous Consecration of the Temple of the Holy Martyrs in Jerusalem, Founded by Constantine the Great, at which almost all the Bishops in the Eastern parts were summoned and called together by the Emperor's Writ: and finally (not to descend to the following Times) witness the 89th Sermon of St. Ambrose, entitled De Dedicatione Basilicae, Preached at the Dedication of a Church built by Vitalianus and Maianus, and the Invitation of Paulinus, another Bishop of that Age, made by Sulpitius Severus his especial Friend, Ad Basilicam quae prorexerat, in Nomine Domini consummabitur, Dedicandum, to be present at the Dedication of a Church of his Foundation. Heyl. Cyprian. Angl. p. 12.  
The Decree of Faith made by the Council of Trent, was attended with no less than Eight Anathematisms; the first whereof was against him that shall say, that there is no visible Priesthood in the New Testament, nor any power to Consecrate, etc. For in the beginning of that Decree it is affirmed, That there is a visible and external Priesthood, in which Power is given, by Divine Institution, to Consecrate the Eucharist, etc. In which Decree the Synod doth also condemn those who say all Christians are Priests, or have equal Spiritual power, which is nothing but to confound the Ecclesiastical Hierarchy, which is in an Order, as an Army of soldiers; To which Hierarchical Order do belong especially Bishops, who are superior to Priests. Therefore one of the said Anathematisms did reach those who say, 
Hist. Counc. Trent. lib. 8.  that there is not an Hierarchy instituted in the Catholic Church, by Divine Ordination, consisting of Bishops, Priests, and Ministers. The Historian of the aforesaid Council of Trent tells us, That the Sixth of the said Eight Anathematisms was much noted in Germany, in which an Article of Faith was made of Hierarchy; which word and signification thereof (says he) is Alien, not to say contrary to the Holy Scriptures; and though it was somewhat Anciently invented, yet the Author is not known; and in case he were, yet (says he) he is an Hyperbolical Writer, not imitated in the use of that word by any of the Ancients: and following the style of the Primitive Church, it ought (says he) to be named not Hierarchy, 
Dict. Lib. 8.  but Hierodiaconia, or Hierodoulia. But Thomas Passius, a Canon of Valentia, said in that Council, That all doubt made of the Ecclesiastical Hierarchy, did proceed from gross ignorance of Antiquity; it being a thing Notorious, that in the Church the People have always been governed by the Clergy, and in the Clergy the inferiors by the superiors, until all be reduced unto one Universal Rector, which is the Pope of Rome; and that it was plain that the Hierarchy consisteth in the Ecclesiastical Orders, which is nothing but an holy Order of superiors and inferiors. But Francis Forrier, a Dominican of Portugal, at the same time said, That Hierarchy consisteth in Jurisdiction, and the Council of Nice placeth it in that, when it speaketh of the Bishop of Rome, Alexandria, and Antioch, and therefore the handling of Hierarchy not to be joined with that of Order. Others were of a Third opinion, viz. That Hierarchy was a mixture of both, viz. of Order and Jurisdiction also. Thus was that Learned Council divided in this high point of Hierarchy, that though they all agreed the thing, yet they could not agree wherein to fix it, whether in Order, or in Jurisdiction, or in both. Notwithstanding it is generally agreed, That the Hierarchy of the Catholic Church is proved by the Testimony of all Antiquity, and by the continual use of the Church, and that it consisteth of Prelates and Ministers, who are Ordained by Bishops, in whom resides the power of Consecration, which may be a sufficient warrant for this digression. Which Consecration, as it refers to Persons, is done per impositionem manuum, except as to Virgins; for they also by the Pontifical Law are Consecrable Creatures, though they be Foolish Virgins, yea, though they be Polluted Virgins, provided it be not per spontaneam & voluntariam pollutionem, and there be but putativa Virginitas in the case; and shall have not only Laureolam Virginitatis, but also Velum Consecrationis, as they call it. Cajetan. in Sum. v Virgin. consecrat. & Less. de Just. & Jur. lib. 4. c. 2. Dub. 16. & alii DD. But where the Consecration refers to Things, as Churches, chapels, Bells, and other things of the like sound, there it is done per preces together with other Consecration-ceremonies, the Episcopal Order therein concurring: so likewise the Consecration of Virgins is per preces, together with other Ceremonies used in the Consecration of Virgins, Cujus Signum est, quod in Pontificali Romano, ubi de hac Consecratione agitur, non dicatur roganda de aliqua contaminatione, sed de vita, conscientia, & carnis integritate, ut notat Cajetanus. Lesle. ubi sup.  
That which is next in view, 
Deans and Chapters.  is some prospect of Deans and Chapters; there were it seems in former times certain Deans, who usurped an Authority beyond their Dignity or Function, and took upon them to exercise Episcopal Jurisdiction. These were condemned in a Council at Lateran under Pope Alexander, by the fifth Canon of, that Council in these words, viz. Quoniam, quidam in quibusdam partibus sub pretio statuuntur, qui Decani vocantur, & pro certa pecuniae quantitate Episcopalem Jurisdictionem exercent, praesenti Decreto statuimus, ut qui de caetero id praesumpserit, Officio suo privetur, & Episcopus conferendi hoc officium potestatem amittat. Chron. Gervas'. de Temp. H. 2. Anciently likewise there were certain Deans, which were called Decani Christianitatis; one of which kind appears in an Ancient Record nigh Four hundred years since, relating to the privileges of the Priory of St. Augustine's, wherein the words to this present purpose sic se habent, viz. Super Privilegiis Innocentii Papae 4. hic superius ad mandatum conservatorum, ut praetactum est, publicatis, Thomas Prior Ecclesiae Christi Cant. Guydo Prior S. Gregorii, & Thomas Decanus Christianitatis, ejusdem Civitatis eadem Privilegia inspexisse ad certitudinem futurorum testati sunt. Chron W. Thorn. de Temp. Ed. 1. An. 1293. Heretofore also Priors have been called Deans; so we find Ceolnothus or Chelnothus (in the time of King Ethelred and his Brother Alured) Dean of Canterbury to have been called, Postea Ceolnothus Cantuariensis Ecclesiae Decanus, etc. ubi cum Decanus esset, quem nos Priorem vocamus, non modicum videre solebat Conventum. And again, Egelnothum, alias Ceolnothum, ejusdem Ecclesiae Christi Decanum, vel Praepositum suum Decanum vocabant, quem nos post adventum Lanfranci Priorem appellamus. Gervas'. Act. Pontif. Cant. And where we meet with the word Decania, as in the History of Ranulphus Bishop of Durham in the conqueror's time, written by Simeon the Monk, Deconatus is thereby intended, it being the Ecclesiastical Dignity of him, qui, in Majori Ecclesia, denis ad minus Canonicis sive Praebendariis (ut vocant) sub Episcopo praeest; but the Decanus CHRISTIANITATIS aforesaid, so called per Antiquiores Anglos, is secundum recentiores DECANVS ruralis, quem Exteri archipresbyterum vicanum vocant. De quo & de Vrbano vid. Duaren. de Sacr. Eccl. minist. & benef. lib. 1. cap. 8. A probable conjecture why anciently he might be called Decanus Christianitatis, we may (ut mihi videtur) have from Mr. Selden, in Notis ad EADMERUM, pag. 208. Christianitas (says he) & ea quae ad Christianitatem pertinent, passim apud Eadmerum atque alios illius aevi Scriptores, functionem Episcopalem, atque Fori sacri actionem & administrationem, seu Officium Episcopale, ut usitatius appellatur, denotant.— Hinc apud nos, Fora sacra, quibus, jure nempe communi subnixis, aut Episcopi praesunt, aut two qui eo nomine Episcopos, utpote quos provocare licet, suscipiunt, Curiae Christianitatis etiamnum vocitantur. Glossar. Hist. Angl. Antiq. ver. Christianitas.— vid. plura in Vrbis Cantuar. Antiq. pag. 362, 363. ubi de Decano Christianitatis. But the Deans here specially meant and intended, are only such as with the Chapters, according to the ancient and genuine use thereof, are as Senatus Episcopi to assist the Bishop in his Jurisdiction, Cathedral Churches being the first Monuments of Christianity in England. So Dr. Hacket in Parliament, 1640.  
The Office and Ecclesiastical Dignity of archdeacon's, 
Archdeacon's.  which you next meet with in this abridgement, is of very great Antiquity. There was a sharp Contest above Five hundred years since, in the time of King H. 2. between the archdeacon's and the Priors of Winchester and Ely, touching the Presentation of their Bishops Elect unto the Metropolitan in order to their Consecration, wherein by the Interlocutory of the said Metropolitan the Priors had the Victory. Hora congrua Consecrationis instant R. Wintoniensis & R. Elyensis Archidiaconi, cum Officiales Episcoporum dicantur, ad suum spectare contendebant Officium Electiones, etc. praesentare Metropolitano: W. Wintoniensis & S. Elyensis Priores in contrarium sentiebant: quam enim in Ecclesiis Cathedralibus, ubi Canonici divinis mancipantur obsequiis, Decani sibi vindicant dignitatem: hanc si Monachorum Conventus in Episcopali sede praemineat, sibi jure possunt vendicare Priores. Sed ut omnis in posterum amputetur occasio Litigandi, de Interlocutoria Metropolitani sententia, etc. Wintoniensis & Elyensis Electi●, ad Priorum suorum praesentationem recepti, ad Priorum suorum postulationem Episcopi Consecrati sunt.— Radulph. de Diceto Imag. Hist. By the 25th Canon of the Council of Lateran under Pope Alexander it was Ordained, That an Archdeacon in his Visitation should not exceed the numqer of Five or Seven Horsemen for his Retinue. Chron. Gervas'. de Temp. H. 2. And as to the Visitation-Articles, every Bishop and Archdeacon heretofore framed a Model thereof for themselves; but at the Convocation in the year 1640. a Body thereof was composed for the public use of all such as exercised Ecclesiastical Jurisdiction. And by the foresaid Canon of the Council of Lateran, it was further Ordained, That no Archdeacon in his Visitation should presume to exact from the Clergy more than was justly due, Archidiaconi autem sive Decani nullas exactiones in Presbyteros seu Clericos exercere praesumant. Notwithstanding what toleration the Law allows as to Archbishops, Bishops, archdeacon's, &c. as to the number of their Retinue in their Visitations; yet therein respect is ever to be had to the condition of the Churches, Persons, and Places Visited, as may plainly appear by the express words of the Canon aforesaid, viz. Sane quod de numero evectionis secundum tolerantiam dictum est, in illis Locis poterit observari, in quibus ampliores sunt redditus & Ecclesiasticae facultates. In pauperibus autem Locis tantam volumus teneri mensuram, ut ex acc●ssu majorum minores non debeant gravari, ne sub tali indulgentia illi qui paucioribus Equis uti solebant hactenus, plurium sibi credant potestatem indultam. So that no Archdeacon or other having Right of Visitation, aught by what the Law allows them in that case, to exercise their power in this matter, beyond what the condition of the place Visited will reasonably admit.  
In all Visitations of Parochial Churches, 
Procurations.  made by Bishops and archdeacon's, the Law hath provided that the Charge thereof should be answered by the Procurations then due and payable by the inferior Clergy, wherein custom as to the Quantum shall prevail; but the undue Demands and supernumerary Attendants of Visitors have Anciently as well as in Later times, given the occasion of frequent Contests and Complaints: For prevention whereof it was Ordained by the 25th Canon of the Council of Lateran under Pope Alexander, circa An. 1179. in haec verba, viz. Cum quidam Fratrum & Coepiscoporum nostrorum ita graves in Procurationibus subditis suis existunt, ut pro hujusmodi causa interdum ipsa Ecclesiastica Ornamenta subditi compellantur exponere, & longi temporis victum brevis hora consumat. Quocirca statuimus, Quod Archiepiscopi Parochias Visitantes, pro diversitate Provinciarum & facultatibus Ecclesiarum 40 vel 50 evectionis Numerum, Episcopi 20 vel 30, Cardinals vero 20 vel 25 nequaquam excedunt. Archidiaconi vero Quinque aut Septem, Decani Constituti sub Episcopis, Duobus Equis contenti existant. Prohibemus etiam, ne subditos suos talliis & exactionibus Episcopi gravare praesumant. Archidiaconi autem, sive Decani nullas exactiones, vel tallias in Presbyteros, seu Clericos exercere praesumant. vid. Chron. Gervas'. de Temp. H. 2. col. 1455. can. 25. whereby it is evident, that these Procurations ought to be so moderated by the Bishops, as that they may not become a burden or grievance to the Clergy. The lawfulness of these Episcopal and Archidiaconal Rights of Procurations are not to be called into question at this day; for in all the Establishments and Ordinations of Vicarages upon the Ancient Appropriations of Churches, you shall find these Procurations excepted, and reserved in statu Quo: As appears by these of Feversham and Middleton, when by William the Conqueror they were Appropriated to the Abbey of St. Augustine's; as also by these of Wivelsberg, Stone, and Brocland in Kent, when they were Appropriated to the same Abbey by the Charter of King Ed. 3. and in that of the Parish of Stone aforesaid, Pentecostals by name are reserved, in these words, Nihilominus solvet Procurationem debitam Archidiacono Cantuariensi Visitanti, & expensas pro Pentecostalibus faciendis.— vid. Chron. W. thorn, Appropria. Eccles. col. 2089. Hist. Angl. What Procurations the Archbishop of Messena, who arrived in England as the Pope's Legate in the year 1261. exacted and extorted from the Bishops and Abbots with great violence in the Reign of King▪ H. 3. you may find in Matthew Paris. But by the Fourth Canon of the Council at Rome under Pope Alex. 3. An. 1180. it was Ordained, That Bishops and Archbishops in their Visitations should not overcharge the Church of their Bounds, with unnecessary charges and expenses, specially the Churches that are poor.  
No sooner had Princes in Ancient times assigned and limited certain Matters and Causes controversal to the cognizance of Bishops, 
Diocesan Chancellors.  and to that end dignified the Episcopal Order with an Ecclesiastical Jurisdiction; but the multiplicity and emergency of such affairs required, for the dispatch and management thereof, the assistance of such subordinate Ordinaries, as being experienced in the Laws adapted to the nature of such Causes, might prove a sufficient Expedient to prevent the avocation of Bishops, by reason of such Litigious interpositions, from the discharge of the more weighty Concerns of that Sacred Function. Hence it is supposed, that the Ecclesiastical Office of Diocesan Chancellors, Commissaries, and Officials originally came into use and practice, the place of their Session anciently styled the Bishop's Consistory. Among the many Learned Ecclesiedicts, who have supplied that Ecclesiastical place, William Lindwood (who finished his industrious and useful work of the Provincial Constitutions about the year 1433. in the time of K. Henry the Sixth) seems to be of the highest Renown; his Education was in the University of Cambridge, first Scholar of Gonvil, than Fellow of Pembrook-hall; his younger years he employed in the study of the Imperial and Canon Laws; afterwards became Keeper of the Privy Seal unto King Henry the Fifth, by whom he was honoured with an embassy to the Crowns of Spain and Portugal. After the King's death he reassumed his Officials place of Canterbury, and then collected the Constitutions of the Fourteen later Archbishops of Canterbury, from Stephen Langton unto Henry Chichley, unto whom he dedicated that highly to be esteemed Work, his Gloss thereon, being in itself as a Canonical Magazine, or the Key which opens the Magazine of the whole Canon Law. It was printed at Paris, An. 1505. at the cost and charges of William Bretton Merchant of London, revised by the care of Wolfangus Hippolytus, and Prefaced unto by Jodocus Badius. This Famous Lindwood was afterwards made Bishop of St. David's.  
By the Grant of William the Conqueror the Bishops originally had an entire Jurisdiction to judge all Causes relating to Religion, 
Courts Ecclesiastical.  for before that time the Sheriff and Bishop kept their Court together. He granted also to the Clergy Tithes of Calves, Colts, Lambs, Woods, Mills, etc. So that before the Conquest there were no such Courts in England as we now call Courts Ecclesiastical or Spiritual, for Anciently the Bishops sat in judgement together with the Secular Judges and Sheriffs on the same Tribunal, specially about Easter and Michalmass; which appears by Mr. Selden in his Notes on Eadmerus, pag. 167. as also by the Laws of King Aethelstane, Debent Episcopi cum Seculi Judicibus interesse Judiciis, ne permittant si possint, ut illinc aliqua pravitatum germina pullulaverint; & Sacerdotibus pertinet in sua Diocoesi, ut ad rectum sedulo quemcunque juvent, nec patiantur si possint, ut Christianus aliquis alii noceat, etc. Chron. Jo. Bromton. de Leg. Aethelst. Reg. And in the Preamble to the Laws of that King you will find these words, viz. Debet etiam Episcopus sedulo pacem & concordiam operari cum Seculi Judicibus. Yea, long after the Conquest, in the Reign of H. 2. An. 1164. by his Laws made at Clarendon the Bishops might interest themselves with the King's Secular Judges, where the matter in judgement extended not to diminution of Members, or were Capital. An. 1164. Congregati sunt Praesules & Proceres Anglicani regni apud Clarendoniam. Rex igitur Henricus, etc. Then it follows in Lege undecima, viz. Archiepiscopi & Episcopi, etc. sicut Barones caeteri debent interesse Judiciis Curiae Regis cum Baronibus, usque perveniatur in Judicio ad diminutionem Membrorum, vel ad mortem. Notwithstanding, at the same time the Bishop's Ecclesiastical Courts, as also the archdeacon's Courts, were established in this Kingdom, and further ratified and confirmed by these very Laws of King H. 2. made at Clarendon, as appears by the Tenth Law, and that immediately foregoing the premises, in haec verba, viz. Qui de Civitate, vel Castello, vel Burgo, vel dominico manerio Domini Regis fuerit, si ab Archidiacono vel Episcopo de aliquo delicto Citatus fuerit, unde debeat eis Respondere, & ad Citationes eorum noluerit satisfacere, bene licet eum sub Interdicto ponere, sed non debet, etc. & exinde poterit Episcopus ipsum Accusatum Ecclesiastica Justitia coercere. Chron. Gervas'. de Temp. H. 2. In those days there was no occasion for that just Complaint, which a Learned Pen (as a Modern Author observes) makes, viz. That Courts which should distribute Peace, do themselves practise duels, whilst it is counted the part of a Resolute Judge to enlarge the privilege of his Court. Lord Bacon in his Advanc. of Learn. p. 463. Aphor. 96.— It was with more moderation expressed by him who said, It was sad, when Courts that are Judges, become Plaintiffs and Defendants touching the Bounds of their Jurisdiction. In the first Parliament of King Edward the Sixth's Reign it was Enacted, That all Process out of the Ecclesiastical Courts should from thenceforth be issued in the Kings Name only, and under the King's Seal of Arms contrary to the usage of former Times. But this Statute being Repealed by Queen Mary, and not Revived by Queen Elizabeth, the Bishops and their Chancellors, Commissaries, and Officials, have ever since exercised all manner of Ecclesiastical Jurisdiction in their own Names, and under the distinct Seals of their several Offices respectively. Also by the Statute of 25 H. 8. c. 19 it being Enacted, That all former Canons and Constitutions, not contrary to the Word of God, the King's Prerogative, or the Laws and Statutes of this Realm, should remain in force, until they were reviewed by Thirty two Commissioners, to be appointed by the King, and that Review being never made in that King's time, nor any thing done therein by King Ed. 6. (though he had also an Act of Parliament to the same effect) the said Ancient Canons and Constitutions remained in force as before they were; whereby all Causes Testamentary, Matrimonial, Tithes, Incontinency, Notorious Crimes of public Scandal, Wilful absence from Divine Service, Irreverence, and other Misdemeanours in or relating to the Church, etc. not punishable by the Temporal Laws of this Realm, were still reserved unto the Ecclesiastical Courts, as a standing Rule whereby they were to proceed and regulate the Exercise of their Jurisdiction. Vid. Heyl. ubi supr. p. 2, 3. Touching the Ecclesiastical Jurisdiction, and what Matters and Causes should be cognizable in the Ecclesiastical Courts of Normandy in the Reign of King Richard the First, upon occasion of a Contest inter Ecclesiam ROTHOMAGENSEM & WILLIELMUM Filium RADULFI, Steward of Normandy, it was nigh Five hundred years since finally Accorded, Published, & (inter alia) Declared by all the Clergy, That all Perjuries and Breach of Faith (except in case of National Leagues,) all Controversies relating to Dowries and Donations propter Nuptias (quoad Mobilia) should be heard and determined in the Ecclesiastical Court; it was then also so many hundred years since further Resolved in haec verba, viz. Quod distributio eorum quae in Testamento relinquuntur, auctoritate Ecclesiae fiet, nec Decima pars (ut olim) subtrahetur: It was likewise at the same time and so long since further Resolved, That Si quis subitanea morte, vel quolibet alio Fortuito Casu praeoccupatus fuerit, ut de rebus suis disponere non possit, Distributio Bonorum ejus Ecclesiastica auctoritate fiet.— Radulph. de Diceto. Hist. de Temp. Rich. 1. Regis.  
Of all the Churches in Great Britain, 
Churches and chapels.  that of Saint Paul's London is of the largest structure, if not of the highest Antiquity: Some will have it in Ancient times to have been the Temple of Diana, but the Ingenious Commentator on Antoninus' Itinerary, 
pag. 169.  though he will admit that Diana was indeed worshipped here in the Roman times, and had Temples here also, yet he will not agree it other than a Tradition to assert, That St. Paul's Church was formerly a Temple of Diana; and is free to conjecture, that Mr. Selden did but sport his Wit, and was not in good earnest, when he imagined that London might be called first Lhan Dien, that is, the Temple of Diana 
a Claris. Seld. illust. in Polyol. magni Poetae Angl. Cant. 8. . The same may be said concerning the Temple of Apollo, on the ruins of which, the report is, St. peter's in Westminster was founded 
b Guil. Stephanides Descript. Lond. . The Antiquary will also have it, That at York was Bellona's Temple; and Minerva's Temple at Bath, and that from her the Town was called Caer Palladour, that is, the City of Palladian waters 
c Spartian. Hist▪ . They that will have the Church of Rome to be Caput Ecclesiarum, do ascribe it to Pope Boniface, that he obtained it of the Emperor Focas, because the Church of Constantinople writ herself Primam omnium Ecclesiarum: This was so Decreed in the year 608. by a Council of 62 Bishops sub Anathemata 
d Rad. de Diceto Abbr. Chron. . At a Synod held at Westminster under Pope Innocent 2. in the Third year of King Stephen An. D. 1138. it was Decreed, That no Church should be built without Leave first obtained from the Bishop of the diocese, Apostolica authoritate prohibemus, ne quis absque Licentia Episcopi sui Ecclesiam vel Oratorium constituat 
e Hist. Ri. Prioris Hagulstad. de Gest. R. Steph. . By the Fifth Law of Ina King of the West Saxons the Church is made a Sanctuary, Si quis sit mortis Reus, & ad Ecclesiam fugiat, vitam habeat, & emendet sicut rectum consulet 
f L. 5. Inae R. . At a Synod held at Westminster in the Reign of H. 2. An. 1175. it was ordained then no judgements touching Blood or Corporal punishment should be given in a Church or Churchyard; by the Sixth Canon made at that Synod, Seculares Causas, in quibus de sanguinis effusione, vel de poena Corporali agitur, in Ecclesiis, vel in Coemiteriis agitari sub interminatione anathematis prohibemus 
g Chron. G●rvas. de Temp. H. 2. . By the Fifth Canon made at a Synod held in London during the Reign of Edmond, Father of Edwin and Edgar, who succeeded Aethelstan, at which Synod were present Odo and Wulstan Archbishops, provision was for the Repairing of Churches, viz. Vt omnis Episcopus reficiat Dei domos in suo proprio, & Regem ammoneat, ut omnes Ecclesiae Dei sint bene paratae 
h Chron. Jo. Brampton de LI. Edm. Reg. . The like you have in the 92 Law of King Kanute, Ad refectionem Ecclesiae debet omnis populus secundum Legem subvenire 
i Idem de Legib. K●nuti Reg. . At a General Council held at Rheims under Pope Calixtus, An. 1119. during the Reign of H. 1. it was Ordained, That whoever invaded the possessions of the Church should be anathematised; Vniversas Ecclesiarum possessiones, quae Liberalitate Regum, vel Largitione Principum concessae sunt, inconcussas in perpetuum, & inviolatas esse decernimus. Quod si quis eas abstulerit, aut invaserit, Anathemate perpetuo feriatur. And by the Sixth Law of Ina aforesaid, if any man fought in the Church, he should forfeit Six pounds; si quis in Ecclesia pugnet, 120 solid. emendet. And although it be now looked upon as Exaction for a Parson to demand his Funeral deuce of Burial, where the deceased is carried out of his Parish to be buried in another, so it was long since Ordained by the Laws of King Kanute, leg. 16. Si Corpus aliquod à sua Parochia deferatur in aliam, pecunia tamen Sepulturae ejus jure in eam Ecclesiam pertinebit.  
Among other Officers relating to the Church, 
Churchwardens.  those of Churchwardens, Questmen, and Sidemen are not to be omitted; for although they may be some of the Lower Form, yet they are of necessary use, and such as without whose care many disorders in the Church may pass unpunished, as well as the Concerns thereof much prejudiced; for which end and reason the Law will have them to be a Corporation, qualifies them to Sue, subjects them to Suits, and understands them in the nature of Ecclesiastical trusties as Guardians of the movable Possessions of the Church: Therefore the Canons have determined, as to the qualification of the persons Eligible, the manner of their Choice, by whom, and the time when, their Oath, Office, Duration, and Account; when and before whom it shall be made, and how they shall be finally discharged.  
By reason of the great desolation and ruin of many Churches and Parishes in the late Unnatural War in this Kingdom, 
Consolidation.  and otherwise, it hath been judged necessary to pass an Act of Parliament for the Uniting of certain Churches in Cities and Towns Corporate: Notwithstanding which, the Parishes to remain distinct as to all Rates, Taxes, Parochial Rights, Charges and Duties, and all other privileges, Liberties, and Respects whatsoever; wherein it is also Enacted, That the Patrons of such Churches and chapels so united, shall Present by Turns only to that Church, which shall remain and be Presentative from time to time, etc. Provided, That Parishes having 100 l. maintenance per An. may not be united. Also the Incumbents of such united Parishes must be Graduates in some university. And the Owners of Impropriations may bestow and annex Maintenance to the Churches where they lie, and settle it in Trust for the benefit of the said Parsonage or Vicarage, without any licence of Mortmain. It is there also further Enacted, That if the settled Maintenance of such Parsonage, Vicarage, Churches, and chapels so united, etc. shall not amount to the full sum of 100 l. per An. clear and above all charges and reprizes, that then it shall be lawful for the Parson, Vicar, and Incumbent of the same, and his Successors, to take, receive, and purchase to him and his Successors, Lands, Tenements, Rents, Tithes, and other Hereditaments, without any licence of Mortmain; any Law or Statute to the contrary notwithstanding. The Churches and Parishes in London, which by that Act since the Dreadful Fire are United, are these, viz. The Parishes of All-hallows Breadstreet and St. John Evangelist are united into one Parish, and the Church of the former to be the Parish-Church of the Parishes so united. The Parishes of St. Alban Woodstreet, and St. Olaves Silverstreet are united into one Parish, and the Church of the former to be the Parish Church of the said Parishes so united. The Parishes of St. Augustine's and St. Faiths are united into one Parish, and the Church of the former to be the Parish Church of the said Parishes so united. The like order to be observed in all the rest of the Parish Churches that are by that Act united.  
Touching Dilapidations of Ecclesiastical Edifices and Possessions, 
Dilapidations.  it may well be presumed, That the most of that kind that ever was in the Christian World, was in the time of Dioclesian's Persecution; which moved Constantine, Son of Constantius Chlorus, who began his Reign in the year of our Lord 310. to give command for the Re-edifying and Repairing the Temples of the Christians; which was not only expeditely put in Execution, but many new Churches were also erected for the Convention of the Christians; and Idol-Temples shut up until Julian the Apostate restored the Heathenish Idolatry. It hath ever belonged to the care and cognizance of the Church, to make provision for the Repair of the Dilapidations of the Church. Thus Jehoida made it his business to repair the Dilapidations of the Temple: 
1 Chro. 24.  But although Controversies hence arising, and incident to this matter, are properly belonging to Ecclesiastical cognizance, yet they are not only Ecclesiastical persons that are hereunto obliged; for although they alone are to prevent and repair, or make satisfaction for what part of the church's Dowry themselves have suffered to be Dilapidated, whilst in their own possession; yet as to the Church itself, and the Incidents thereof, others as well as ecclesiastics are obliged to the Repairs thereof; for the Steeple with the Body of the Church, and all chapels lying in Common thereunto, are to be Repaired by the joint cost of the Parishioners: And such Private chapels, as wherein particular persons claim a propriety of Seat and Sepulture, are to be Repaired at their own charge; but the Chancel is to be kept in Repair at the parson's cost: yet in all these respect is chief to be had to the custom of the Place time out of mind, for that shall rule the premises, and will go far to determine, whether the Fences of the churchyard are to be made and repaired at the charge of the Parson (who may have the ground thereof as part of his Glebe) or at the charge of the Parishioners, or of such persons whose Land surrounds or abutts on the same. 
Suarez de Virt. & St●tu Religionis, lib. 1. c. 28. nu. 18.  Suarez says, That for the better prevention of Dilapidations, there was Anciently a custom in some places, That some part of the Tithes should not be paid to the Clerk, or applied to the party Beneficed, but should be reserved for the use of the fabric of the Church, to repair the same, and for the use of the Poor; and were not properly due to any particular Clerk, ut in ejus dominium transferantur, but to the Church; not the material Temple, but to the Church, that is, the Clergy for the use of the Temple. The Executors or Administrators of a Dilapidator stand charged in the Ecclesiastical Court to the succeeding Incumbent to make good the Repairs; and if such Dilapidator in his life-time shall make a Deed of Gift to defeat the Successor of the effect of his Suit, it is void, 13 Eliz. cap. 10. And the Successor Incumbent shall have like remedy in the Ecclesiastical Court against such Donee or Grantee, as he might have had against the dilapidators' Executor or Administrator. Also by 14 Eliz. cap. 11. it is provided, That all the Moneys received for Dilapidations, shall within Two years be employed upon the Buildings, for which they were paid, on pain of forfeit of so much to the King as shall not be so employed.  
When a Church becomes Litigious, 
Patrons and Patronage.  and doubt arises touching the right of Patronage or Presentation, in that case the Law hath provided an Expedient for the Ordinary, whereby his being a Disturber, in case he Collate or Present, is prevented; to which end and in such case the Law directs him to award the Jure Patronatus; wherein the Practice with us at this day, answers to the pretence of all persons quorum interest, with more exactness and general satisfaction, than was anciently practicable according to the Canons and Constitutions of old, as appears by the defect (in this matter) of the Seventeenth Canon of the Council at Rome, An. 1180. which is only to this effect, viz. If a question arise concerning Presentations of divers persons to one Church, or concerning the Gift of Patronage, if the foresaid Question be not decided within the space of Three months, the Bishop shall place in the Church the person whom himself conceives most worthy. The Law takes notice of a twofold Jus Patronatus, the one civil, the other Canonicum: The former is that which is introduced by the Civil Law, and refers to a Lord or Patron in respect of his Bondman made Free, and his Goods: the other, and which only is here intended, is, That which is instituted by the Church in show of gratitude to him who either Founded, built, or Endowed some Church; for which reason the Bishops granted them a certain Right in such Churches, which is commonly called Jus Patronatus, and that by the Canon Law understood as Honorificum, Vtile, & Onerosum. Honorificum, in regard of that obsequious Respect due from the Parish to the Patron, specially in that the chiefest Seat in his Church is granted to him: Onerosum, in that the Patron may lawfully defend his Church, and prevent the Dilapidations both of the Church, and of what she is Endowed with according to the way and manner prescribed in cap. Filiis 16. q. 7. It is also called Jus Vtile, because that if any time the Patron or any descending from him shall happen to fall into decay, in such case the said Church is more obliged to supply the necessities of him and his, than of any other Poor. c. Quaecunque cum sequent. For this reason also it is, and that others may be encouraged to the like Acts of Piety, the Church (as a Mark of special grace and favour) hath granted to such Patrons the Jus Praesentandi, or a Right to Present fit persons to the Benefice of such Churches. This Right or Jus Patronatus did not belong to Patrons anciently or jure antiquo, as appears by the Gloss in cap. Piae mentis; yet most certain it is, That this Right of Patronage was Jus antiquissimum, as is evident by cap. Quoniam. de jure Patronat. And the Lateran Council calls it Potestatem, in qua Ecclesia huc usque Patronos sustinuit.  
The present Incumbents, 
Parsons and Parsonage.  Parsons and Vicars, of Churches burnt in London by the late Dreadful Fire, and by Act of Parliament not to be rebuilt, are by the said Act not deprived of the Tithes, or other profits formerly belonging to their respective Churches so long as they shall assist in serving the Cure, and other Offices belonging to their duty in the Parish-Church, whereunto their respective Parishes shall be united and annexed by the said Act, according to the direction of the Ordinary, etc. Saving to the King's Majesty, his Heirs and Successors, the Tenths and First-Fruits of all such Parish-Churches as by force of the said Act are united and consolidated, etc. yet so, as that the said Parsons and Vicars are by the said Act indemnified from the payment of all First-Fruits, Tenths, and Pensions due, and which shall be due unto his Majesty, and from all deuce to the Ordinary and Archdeacon, and all other deuce whatsoever chargeable upon them respectively, until such time as they shall receive the Profits arising from the same, as formerly. And no Process to issue out of any Court whatsoever, against the persons aforesaid, for their nonpayment of First-Fruits, Tenths, Pensions, or any other the deuce aforesaid, etc. The said Parsons are likewise by the said Act indemnified for not Reading the 39 Articles, or not doing other thing enjoined by Law, until such time as the said Churches be Re-edified, or made fit for public Worship. The said Parsons and Vicars are likewise impower'd to let Leases of their Glebe-Lands, with the consent of the Patron and Ordinary, for any Term not exceeding 40 years, and at such yearly Rents, without Fine, as can be obtained for the same: And that no Lapses incurred upon any Non-Presentation in due time of any of the Patrons of the said live since the said Fire, shall any ways prejudice, or make void the Presentations that the said Patrons have since made, whereupon any Incumbent is since Instituted and Inducted, any Law or Statute to the contrary in any wise notwithstanding. By the Third Canon of that great Assembly of 180 Bishops at Rome, in the Church of Constantiniana, An. 1180. in the Twentieth year of Pope Alexander the Third, it was Ordained, That no man should be admitted to the Office of a Bishop under the age of Thirty years; nor that any should be admitted to be a Deacon, or Archdeacon, or to have the government of a Parish until he were of the full age of Five and twenty years.  
The next Chapter speaks of Vicars, 
Vicars, Vicarages, and Benefices.  Vicarages, and Benefices; Gervasius a Monk of Canterbury in his Chronicle de tempore H. 2. (under whom a Synod was convened at Westminster, An. 1175. by Richard then Archbishop of Canterbury) acquaints us with an Ancient Canon made at that Synod, whereby Vicars are restrained from behaving themselves proudly against their Parsons, a piece of Spiritual Insolence not grown quite out of practice to this day: It is the Eleventh Canon, the words are, Illud etiam de Vicariis, qui personis fide & juramento obligati sunt, duximus statuendum, quod si fide vel Sacramenti religione contempta Personatum sibi falso assumentes, contra Personas se erexerint, si super hoc in jure vel confessi vel convicti fuerint, de caetero in eodem episcopatu ad Officii sui Executionem non admitta●tur. In all Appropriations of Churches there ever was, and aught to be, an establishment of sufficient Maintenance for the Vicar and his Successors, pro sustentatione sua congrua, made by the Bishop of the diocese, by and with the consent of such as to whom such Churches are Appropriated: And this, though for the most part consisting only of the Minute Tithes, yet hath the denomination of a Benefice, or Ecclesiastical Benefice, as properly as any Rectory or Parsonage whatever; for they are perpetual Vicars, in whom the Vicarage or Benefice is as in Fee, though not properly in demesne as in Fee, as Temporal Inheritances are; and therefore the word [Beneficium] with the Feudists and Canonists is the same as Feodum or Feudum with our Common Lawyers; yet sometimes it is opposed to that which we call Allodium, or what a man hath in his own Name, and in his own proper Right and absolutely, for that which is here understood by Beneficium, may be possessed nomine alieno, & certis sub Legibus; which may not properly be said of Allodium, that being properly what a man doth possess nomine proprio, & absolute: An instance of this you have in the Grant made by King William Rufus to Anselme Archbishop of Canterbury; Praecepit Rex, ut investiretur Anselmus omnibus ad Archiepiscopatum pertinentibus, atque ut Civitas Cantuariae, quam Lanfrancus suo tempore in Beneficio à Rege tenebat, & Abbatia Sancti Albani, quam non solum Lanfrancus, sed & Antecessores ejus habuisse noscuntur, in Allodium Ecclesiae Christi Cantuariensis pro redemptione animae suae perpetuo jure transirent. By the Ninth Canon of the Lateran Council under Pope Alexander, It is prohibited to grant or promise any Ecclesiastical Benefices before they are actually void; the reason of which Canon was, to prevent the desire of the death of the present Incumbent, by him who by such promise or grant had an expectation to succeed him in the Benefice.  
In the next place follows the Chapter of Advowsons', 
Advowsons'.  which the Canon Law calls Jus Patronatus, being a power or right of Presenting one to be Instituted to a vacant Ecclesiastical Benefice; I say, Vacant, because if the Benefice be not then void, the Presentation will be void in Law; the reason is, because were it otherwise, occasion might thereby be given the Presented to desire or wish for the Incumbents death. cap. Nulla. de Concess. Praebend. And although, what we call Advowson, the Canon Law calls Jus Patronatus; yet every Jus Patronatus is not an Advowson, according to the Civil Law; for the Jus Patronatus hath a twofold acceptation in the Law; the one, That Right which Lords or Patrons have on their Bondmen made Free by Manumission, and so it is taken in ff. de jur. Patron. but this is not to our present purpose: the other, That Right of Presentation to an Ecclesiastical Benefice, which belongs to Patrons of Benefices and Churches, which in the Law is likewise called Jus Advocationis, as appears by cap. Quia Clerici, de Jur. Patronat. And this is that Advowson here intended. This Right of Advowsons' or Jus Patronatus the Law doth also distinguish into Ecclesiastical and Laical. Touching the Ecclesiastical vid. Covarru. in qq. pract. c. 36. n●. 2. which is so called, not because an ecclesiastic doth enjoy or possess it (for so he may also possess a laic Patronage;) but because it belongs to one for that he hath founded, built, or endowed the Church Ex bonis Ecclesiasticis, or by reason of some Rectory of a Church, or some Ecclesiastical Dignity: As when a Benefice is erected with money gotten ex bonis Ecclesiasticis; in that case he hath Jus Patronatus Ecclesiastici, or Patronatum Ecclesiasticum: And so it is, if one hath the Advowson or right of Presentation on, because he is a Bishop, a Dean, or the like; this also is Jus Patronatus Ecclesiastici, so the Gloss, in Clem. 2. de jur. Patronat. & alii. The other kind of Advowsons' or Jus Patronatus Laici is so called, for that it belongs to one, because he hath either founded, built, or endowed some Church, or erected some Benefice Ex bonis patrimonialibus. Lessius de justice. & jure, cap. 34. the Benefic. Dub. 4. In pursuance of that distinction it is, that the Canon Law determines in a different manner in respect of ecclesiastic and laic Patronages, touching the time limited for Presentation to a vacant Benefice; for (according to that Law) if the Patronage be laic, the Patron is obliged to Present within Four months' next after the Church becomes void: but if the Patronage be Ecclesiastical, then within Six. cap. unico, de Jur Patronat. in 6.  
Concerning Appropriations of Churches, 
Appropriations.  the first thereof since the Conquest appears to be that of Feversham and Middleton in Kent, An. 1070. granted by William the conqueror to the Abbey of St. Augustine's in Canterbury in manner following, viz. In Nomine, etc. Ego Willielmus, etc. ex his quae omnipotens Deus sua gratia mihi largiri est dignatus, quaedam concedo Ecclesiae. S. Augustini Anglorum Apostoli, etc. pro salute Animae meae & Parentum meorum, Predecessorum, & Successorum, haereditario jure; haec sunt Ecclesiae & Decimae duarum Mansionum, viz. Feversham & Middleton ex omnibus redditibus qui, etc. & omnibus ibidem appendentibus, terra, sylva, pratis, & aqua, etc. Haec omnia ex integro concedo S. Augustino, & Abbati, & Fratribus, ut habeant, & teneant, possideant in perpetuum; which was afterward Confirmed by Pope Alexander the Third, and Ratified by Theobald Archbishop of Canterbury, together with an Establishment and Ordination of a Vicarage by the said Archiepiscopal Authority in each of the said Churches respectively. The like you have for the Appropriating of three other Churches to the same Abbey, viz. of Wyvelsberg, Stone, and Brocland in Kent, by the Charter of Ed. 3. above Three hundred years since, Confirmed by Pope Clement's Bull, and Ratified by Simon Mepham then Archbishop of Canterbury, with his Establishment of Three perpetual Vicarages to the said Churches: Which Charter is to this effect, viz. Nos de gratia nostra speciali, & pro C. Libris, quas praefati Abbas & Conventus nobis solvent, etc. Concessimus & Licentiam dedimus pro Nobis & haeredibus nostris, quantum in Nobis est, ejusdem Abbati & Conventui, 
Vid. G. thorn in his chronicle De Reb. gestis Abbatum S. Augustin. Cant.  quod ipsi Ecclesias praedictas Appropriare, & eas sic Appropriatas in proprios usus tenere possint sibi & Successoribus suis in perpetuum (nisi in hoc, Quod Nos tempore vacationis Abbatiae praedictae, si contigerit Ecclesias praedictas, vel aliquam earundem tunc vacare, Nos Jus Praesentandi ad easdem amitteremus) sine occasione, vel impedimento Nostri, vel haeredum nostrorum quorumcunque. Hujus Data est sub An. Do. 1349. The Modern Church-Historian of Britain in his Eleventh Book, pag. 136. calls to remembrance, That about An. 1626. there were certain Feoffees, a whole dozen of them (though not incorporated by the King's Letters Patents, or any Act of Parliament, yet) Legally (he says) settled in Trust to purchase in Impropriations, and that it was incredible (how then possible to be believed?) what large Sums were advanced in a short time towards that work: But then withal tells us somewhat that is Credible, viz. That there are 9284 Parochial Churches in England, endowed with Glebe and Tithes; but of these (when the said Feoffees entered on their work) 3845 were either Appropriated to Bishops, Cathedrals, and colleges, or Impropriated (as Lay-Fees) to Private persons, as formerly belonging to Abbeys. The Redeeming and Restoring (he does not mean to the Abbeys) was the design of these Feoffees, as to those in the hands of Private persons, but re infecta, the Design proved abortive.  
A Commendam or Ecclesia Commendata, 
Commendams:  so called in contradistinction to Ecclesia Titulata, is that Church, which for the Custodial charge and government thereof, is by a revocable Collation concredited with some Ecclesiastical person, in the nature of a Trustee, vel tanquam fidei Commissarius, and that for the most part only for some certain time, absque titulo; for he that is Titularly Endowed, hath the possession of the Church in his own Name and in his own proper Right during his life; hence it is, that in the Canon Law a Church collated in Commendam, and a Church bestowed in Titulum, are ever opposed as contraries vid. Hist. Council. Trident. lib. 6. pag. 600. & Duaren. de Benefic. lib. 5. cap. 7. Thus King Edgar Collated Dunstan Bishop of Worcester to the bishopric of London by way of Commendam; Rex Edgarus (says Radulph. de Diceto in his Abbreviat. Chronicorum) Lundoniensem Ecclesiam proprio Pastore viduatam commisit regendam Dunstano Wigornensi Episcopo. Et sic Dunstanus Lundoniensem Ecclesiam Commendatam habuit, & non Titulatam. dict. Radulph. de An. 962. It is supposed that the first Patent of a Commendam retinere granted in England by the King to any Bishop Elect, was that which King Henry the Third by the advice of his Council (in imitation of the Pope's Commendams then grown very common) granted by his Letters Patents to Wengham then Chancellor of England notwithstanding his insufficiency in the knowledge of Divinity, to hold and retain all his former Ecclesiastical Dignities and Benefices, whereof the King was Patron, together with his bishopric (he then succeeded Fulco Bishop of London) for so long time as the Pope should please to grant him a Dispensation: whose Dispensation alone would not bar the King to Present to those Dignities and Benefices, being all void in Law by making him a Bishop. He had also the like Patent of Commendam retinere as to his Benefices and Ecclesiastical Preferments in Ireland. And this Patent of such a Commendam being made by the King, his Lords and Judges, is for that reason the more remarkable. vid. Le Hist. of the Church of Great Britain, pag. 84. According to the proper and ancient Account, Commendams were originally introduced in favour and for advantage of the Church which is Commended, in favorem & utilitatem Ecclesiae quae Commendatur. Imola in ca Nemo. de Elect. in 6. says, that Commendams are not to be Nisi ex evidenti Ecclesiae Commendatae necessitate vel utilitate. The distinction of Temporal and Perpetual Commendams in the Canon Law is of no great use with us; indeed in the Church of Rome, according to the former mode of Commendams, a vacant Church is Commended either by the Authority of the Pope, if it be a Cathedral; ca penult. & ult. 21. q. 1. or by the Authority of the Bishop, if it be a Church Parochial. This is commonly Temporal, or for Six months, and is in utilitatem Ecclesiae: the other commonly Perpetual, and are magis in subventionem eorum, quibus commendantur, quam ipsarum Ecclesiarum. And a Commendatary for life, is the same in reality with the Titular. These Commendams in their Original were Instituted to a good purpose, but after used to an evil end: For when by reason of Wars, Pestilence, or the like, the Election or Provision could not be made so soon as otherwise it might, the superior did Recommend the vacant Church to some honest and worthy person; to govern it, besides the Care of his own, until a Rector were provided; who then had nothing to do with the Revenues, but to govern them and consign them to another. But in process of time these Commendataries, under pretence of Necessity, made use of the Fruits, and to enjoy them the longer, sought means to hinder the Provision: for remdy whereof, order was taken that the Commenda should not continue longer than Six months: But the Popes by the plenitude of their Power, did exceed these Limits, and Commended for a longer time, and at last for the life of the Commendatary, giving him power to use the Fruits.  
When any Ecclesiastical Benefices happen to be void, 
Lapse.  the Law provides that they shall be seasonably supplied with meet Incumbents, and will not by any means admit any long Vacancy, and hath therefore set a competent time within which he that hath the original right of Presentation in him, shall discharge his duty therein, or the Lapse shall incur to him or them to whom by Law ab Inferiori ad Superiorem it gradually devolves. This matter of Lapse (in the intent and purpose thereof, though not by that denomination) is very Ancient: By the Ninth Canon of the Council of Lateran under Pope Alexander, it is provided, That Cum Praebendas, Ecclesias, seu quaelibet officia in aliqua Ecclesia vacare contigerit, vel si etiam modo vacant, non diu maneant in suspenso, sed in Sex menses personis quae digne administrare valeant conferantur. Si autem Episcopus, ubi ad eum spectaverit, confer distulerit, per Capitulum ordinetur. Quod si ad Capitulum Electio pertinuerit, & infra praescriptum terminum hoc non fecerit, Episcopus exequatur. Aut si forte omnes neglexerint, Metropolitanus de ipsis absque illorum contradictione disponat. vid. Chron. Gervasii de Temp. H. 2. And by the Eighth Canon or Constitution of the Council at Rome in the year 1180, under Pope Alexander the Third, it was Ordained, That no Ecclesiastical Office should be promised to any man before it became vacant by the decease of the Possessor. For (says the Canon) it is an unrighteous thing to put any man in expectation of another man's Living, whereby he may wish his brother's death. And when any place shall happen to be vacant, let it be planted again within Six months, or else he who hath the Right of Plantation shall lose it at that time, and the Chapter, or Metropolitan Bishop shall have power to provide the vacant place. According to the Canon Law the Lay-Patron hath but Four months to present to a Benefice, but an Ecclesiastical Patron hath Six. Patronatus vero Laicus intra quatuor menses praesentare potest, Ecclesiasticus autem Patronus intra Sex menses. c. uno, de jure Patron. in 6. But the Pope is not limited to any time, so that he may Collate to such Ecclesiastical vacant Benefice at what time he pleases. Papae vero non est aliquod tempus praefixum, cum non habet Superiorem, qui possit ejus negligentiam supplere. c. aliorum 9 q. 3. nisi in c. Statutum, de Praeb. in 6. Although regularly all inferior Dignities Ecclesiastical and Benefices ought to be bestowed within Six months of their Vacancy, according to the Rule of the Canon Law, c. cum nostris, c. dilectus, & c. postulastis. Yet the greater Dignities are by that Law to be conferred within Three months, Majores vero Dignitates, ut Episcopales, debent intra Tres menses tribui. c. ne pro defectu, de Elect. c. postquam, 50. Dist.  
Although in strictness and propriety of Speech, 
Collation and Presentation.  Presentation refers to the Lay-Patron, and Collation to the Bishop, yet in the Canon Law the words Collation and Collator are frequently used in a sense promiscuously relating to them both. Therefore you have it in one place said, That Praesentatio à Fundatore fieri solet, Episcopo, vel alteri Collatori, & Episcopus instituit Praesentatum à Patrono. Rub. & per tot. tit. de Instit. & c. quod autem, de jur. Patron. In another place it is said, That Praesentatio Large dicitur Collatio. Rebuff. in Prax. Benefic. Reg. de infirm. Benefic. resignant, gloss. 14. nu. 6. post Barba. in c. Abbatem de Rescript. col. pen. Yea, and sometimes Collation is generally taken also for Institution; per tex. in ca uno. ut Ecclesiast. Benefic. sine diminut. conferant. Although a layman doth found, build, or endow a Church, yet the Canon Law allows him not the privilege of Jus Patronatus or Jus Praesentandi otherwise than ex gratia; for the Canonists do hold, That de rigore juris non potest Laicus Ecclesiastica tractare negotia. c. 2. de Judic. only (say they) the Popes to encourage them in the founding, building, or endowing of Churches, have reserved that privilege for them, and confirmed it by a Law.— c. Decernimus 16. q. 7. & per tot. tit. de jur. Patronat. As the Jus Patronatus, so Presentation also by the Canon Law is twofold, the one by an Ecclesiastical Patron, the other by a Lay Patron: This distinction is best known only to the Canon Law, and although it may be so in Presentation, yet it is not properly applicable to Collation. The Ecclesiastical Patron (as aforesaid) hath by that Law Six months, to be computed from the day of his having Notice of the Vacancy to Present. c. unic. de jur. Patronat. 6. Do. de Rota, Decis. 568. tit. de Sent. & re jud. Decis. 31. & 845. tit. de filiis Presb. decis. 4. By the Ecclesiastical Patron is meant or intended, that person who hath the Jus Patronatus in him ratione Ecclesiae seu Beneficii quod possidet. c. dilectus de Offic. Leg. c. cum dilectus, de jure Patro. But the Lay Patron, who hath the Jus Patronatus ratione sui patrimonii, hath only Four months (as aforesaid) ad Praesentandum. d. c. uno. yet in his Presentation he may variare, but that may not be more than semel tantum. c. quod autem, de jure Patr. and this Cumulative, non autem ut à primo recedere omnino possit. c. cum autem, ubi Pan. ibid. So likewise as to Collation, that also is twofold by the same Law, viz. Necessary and Voluntary (a distinction of little use with us;) Necessary, which the Collator is bound to make, as to one who hath a Mandate from the superior Power for the same, c. tibi, & c. duobus. de Resor. lib. 6. The Voluntary Collation, being that which is free in him who hath power to make the same.  
The Canon positively requires, 
Examination. Admission.  that Examination shall ever precede Ordination, Admission, Institution, and Induction; and although this be incumbent on the Bishop or Ordinary (when it is in order to a Benefice) before the Six months expire; yet no obligation lies upon him to effect it, so soon as the party offers his submission to an Examination, specially if at the same time the Ordinary be circa curam Pastoralem. This Examination refers to the due qualification of the person to be Ordained or Beneficed, as to his Ability and Conversation. After this Examination and thereon the Ordinaries Approbation, the way is open for Admission, if no other Legal impediment appears to the Ordinary; yet the Canon requires, that notwithstanding the Bishop's Approbation upon the party's Examination, he may not Ordain him, unless he hath in esse or posse, a promise or a prospect of some Ecclesiastical Living, whereof to assume the Cure, and whereon to receive subsistence, unless the Ordinary will maintain him until he be so provided, in case he hath not of his own wherewith to subsist without such provision, for our Law and Practice both requires, that they should be Incumbents, and not Mendicants. By the Fifth Canon or Constitution made by that great Convention of no less than One hundred and Eighty Bishops at Rome, under Pope Alexander the Third, it was Ordained, That if any Bishop should Admit any man to be a Presbyter or a Deacon, without the Title of a Place that may afford unto him things necessary for the maintenance of his life: Let the Bishop himself sustain him, until he provide a Living for him, except he be able of his own patrimony to sustain himself. In the Council of Carthage it was Ordained, Quod nullus ordinetur Clericus, nisi probatus, aut examine Episcoporum, aut populari testimonio. cap. Nullus 24. dist. And by the Council of Pope Martinus it was Decreed, That all such as were Ordained Presbyters or Deacons without Examination, were to be expelled the Clergy. c. si. 24. Dist. The Subject-matter whereon they are to be Examined differs with us from that used in the Church of Rome chief in these Three particulars, viz. Quoad Genus: quoad Patriam: quoad Fidem. vid. c. quando. 24. Dist. There are several ancient Canons which give this Jus Examinationis to archdeacon's, c. adhaec, etc. ut nostrum, De Offic. Arch. c. si quis 94. Dist. yet Rebuffus tells us, that at this day in France they have lost that part of their Office by a kind of desuetude or disuse thereof, it now wholly belonging to the Episcopal Order in that Kingdom, as in this and most other Churches of Christendom. c. Si servus, 54. Dist. c. accepimus. de aetate & qualitate.  
Vacatio Beneficii, 
Avoidance.  or the Avoidance of an Ecclesiastical Benefice, which you meet with also in the ensuing abridgement, as it is opposed to Plenarty, is the want of a lawful Incumbent; during which vacancy the Law looks on the Church quasi viduata, without her Spiritual husband, and our Common Law on the Possessions thereof as in abeiance. An Avoidance in the causes thereof, as practicable with us, differs, much from that at the Canon Law, where there are thrice as many as are in use with us. 
Rebuff. Prax. Benef. de Regia ad Praelatur. nominat. fac. §. Monasteriis.  Rebuffus enumerates above Thirty Causes of such Avoidances, but of such relation to the Pontifical Constitutions, that not above a Third part of them takes place in this Realm. It is Quaestio Juris, whether a Benefice be void before Sentence Judicially pronounced, albeit in the Law it be said, Quod ipso facto sit privatus? Admitting the Crime to be committed for which the Law says he shall be deprived ipso facto; yet the Question is held in the Negative, unless it plainly appears that the mind of the Legislators were otherwise, as if those words were added, viz. Beneficium eo ipso vacare, ita ut alteri Libere possit conferri. c. Dudum 2. de Elect. As when one takes a second Benefice Incompatible. Aquin. 2. 2. q. 62. art. 3. Cajetan. ib. Sotus lib. 1. de Just. q. 6. art. 7. Covar. de Matrim. p. 2. cap. 6. §. 8. nu. 9, & 13. and generally the Modern DD. But the Question is put a little further, As whether the Benefice be void when it is said in the Law, Sit privatus ipso facto absque alia declaratione? Covarruvios', Sotus, and Henriquez de Excom. c. 56. and many other of the later Writers are of Opinion, that it is not void, but that a declaratory Sentence of the Crime is requisite; and that Clause, absque alia declaratione, is to be understood of a declaration of the penalty incurred, not of the Crime committed; which exposition of the words, though it may seem somewhat strained, is notwithstanding by the frequent use and practice thereof among the Canonists sufficiently confirmed. And those Laws which say, that the Benefice shall be void ipso jurc, as in Extrav. Ambitiosae, De reb. Eccl. do not seem to be taken in that strict and rigorous sense, Vt sponte teneatur se Reus spoliare. Lesle. de Just. & Jur. lib. 2. cap. 29. de Judice. Dub. 8. nu. 68 If it shall hence be demanded, of what force, energy, or operation then are such Laws, whereby a man is ipso jure deprived of his Benefice, by reason either of some Crime committed, or another Benefice Incompatible accepted? the Answer which the Canonists make to it is, That by the words (ipso jure privatus Beneficio) the Offender doth immediately lose the very Title he had to the Benefice, insomuch as that he is no longer Dominus Beneficii, yet doth retain the possession thereof, of which he cannot be Deprived, nisi causa cognita, without a fair Trial at Law. Gloss. in c. Licet Episcopus, 28. de Praebendis in 6. & DD. ibi. Note, This is not said by way of interpretation of these words (ipso jure) in any Statute Law of this Realm, but by way of Exposition thereof among the Canonists.  
Although the Clergy have ever been had in the highest repute both with Prince and People, 
Plurality.  where the Gospel hath been received, and have been honoured with divers privileges and Immunities above the Laity, yet the Law hath ever held it as prejudicial to the Church, That Plures honores Ecclesiastici uni personae sint tribuendi. At a Council convened at Westminster in the Five and twentieth year of the Reign of H. 1. being above Five hundred years since, Honorius 2. then Pope, in this Synod it was Ordained in these words, Praecipimus ne uni personae in Ecclesia Archidiaconatus, aut diversi tribuantur honores. To this purpose is the Third Canon of the Lateran Council under Pope Alex under, Quia nonnulli diversas Ecclesiasticas Dignitates, & plures Ecclesias Parochiales contra Sacrorum Canonum instituta nituntur adquirere, ita ut cum unum Officium vix implere sufficiant, stipendia sibi vendicent plurimorum, ne id de caetero fiat, districtius inhibemus. Et quia tantum quorundam processit ambitio, ut non duas vel tres, sed Sex vel plures Ecclesias perhibeantur habere, nec duabus possunt debitam provisionem impendere: per Fratres & Coepiscopos nostros hoc emendari praecipimus. Likewise Gregory the Tenth, who succeeded Clement, at a Council at lions, Pluralitatem Beneficiorum Curatorum damnavit. Hen. de Knyghton. de Event. Angl. lib. 2. In like manner it appears by the Fourteenth Canon of the Council at Rome under Pope Alexander 3. An. 1180. That Plurality of Benefices is there forbidden, as a vice smelling of Avarice and Ambition, dangerous and prejudicial to the People, whose Souls are neglected by such pastors. One of the chiefest Reasons, why the Law forbids Pluralities, is, because it enjoins Residence, both which are inconsistent in the same Incumbent. Aquinas says, That the having of Two Benefices is not intrinsically evil, or Malum in se, nor that it is altogether indifferent, but carries in it a species of Evil, yet so as that upon due Circumstances it may be capable of a qualified lawfulness. Aquin. quod-lib. 9 art. 15. To the many Inconveniencies, which the Law doth specifically observe to follow upon Pluralities, this may not impertinently be added, That thereby the pious Intention of Founders is frustrated. The Council of Trent hath these words of it, Haec Pluralitas est perversio totius Ordinis Ecclesiastici. Concil. Trid. Sess. 24. cap. 17. Pope Alexander the Third said, That Pluralitas Beneficiorum certum continet animarum periculum. c. Quia in tantum 7. de Praebend. The Canonists speaking of this Subject in reference to Dispensations, to salve the matter if possible, and bring both ends together, have found out a very pretty distinction of Beneficia Incompatabilia primi generis, 
●o ●ius de Just. & Jure.  and Incompatabilia secundi generis: But we are not concerned in that Distinction. In that Council of Trent it was said by the Bishop of Bitonto, That Plurality of Benefices, unknown to the First Ages, was not brought in by the Court of Rome, but by Bishops and Princes, before the Popes took upon them to regulate the matter of Benefices throughout all Christendom. Yet the Author of the History of the said Council of Trent, lib. 2. says, That Clement the Seventh Commended to this Nephew Hippolytus, Cardinal de Medicis, in the year 1534. all the Benefices of the world, Secular and Regular, Dignities and Parsonages, Simple and with Cure, being vacant for Six months, to begin from the first day of his possession, with power to convert all the Profits thereof to his own use.  
The ways whereby an Ecclesiastical Benefice may be acquired, 
Deprivation.  are not many; but the Causes for which an Ecclesiastical person may thereof be Deprived, are very many; generally they may all be reduced to these Three Heads, (1) By the Disposition of the Law: (2) By the Sentence of the Judge: or (3) By a free and voluntary Resignation, which though it be not properly a Deprivation, yet it is an amission of the Benefiee. Deprivation by the disposition of the Law, is either by reason of some Crime, whereunto the penalty of Deprivation ipso facto is by the Law annexed, or by reason of accepting another Benefice Incompatible. The Pontifical Law adds Two more, which do not concern us, viz. Ingress into Religion, and Matrimony. The Crimes that incur Deprivation are many, but they must be proved, for the Beneficed party is not bound sponte sua to quit his Benefice ante Sententiam Judicis. Lesle. de Benefic. cap. 29. Dub. 8. And when a man is not Jure Privatus, but only Privandus, in that case his Benefice cannot be bestowed on another, unless a Privative Sentence be first pronounced by the Judge. If a person Beneficed be long absent and nonresident from his Benefice, the Benefice is not by reason of such long Absence void ipso Jure; but the Law in that case also requires a Judicial Sentence of Deprivation, and that only post trinae Citationis in eorum Ecclesiis publice Edictum. Gloss. in c. Quoniam, ut lite non contestata, etc.  
One of the chiefest Reasons in Law why Pluralities are prohibited, 
Residence.  is for the prevention of nonresidence, as appears by the Third Canon of the Lateran Council; which Canon, after it prohibits the having of divers Ecclesiastical Dignities or more Parochial Churches than one, it makes provision against nonresidence in these words, viz. Cum igitur vel Ecclesia, vel Ecclesiasticum Ministerium committi debuerit, talis ad hoc persona quaeratur, quae Residere in loco, & curam ejus per seipsum valeat exercere. Quod si aliter Actum fuerit, & qui receperit, quod contra Sacros Canones acceperit amittat; & qui dederit, largiendi potestate privetur. Likewise by the Thirteenth Canon of that great Council of One hundred and eighty Bishops, Assembled at Rome by Pope Alexander the Third in the year of our Lord 1180. it was Ordained, That such persons should be preferred to Ecclesiastical Dignities, as shall be actually resident with their people, and undertake the Cure of their Souls, by doing the work of their Ministry in their own persons, otherwise to deprive them of the Office and Benefice conferred on them; and they who do confer them without these Conditions, let them lose the right of conferring Offices and Benefices. By this appears, how strict and exact the Law is against nonresidence in the Romish Church.  
One of the most famous Abbots and Monasteries in Britain anciently, 
Abbots and abbeys.  seems to be that of Bangor in Flintshire, whereof Ranulphus Cestrensis says, that Tradunt nonnulli Pelagium fuisse Abbatem apud Famosum illud Monasterium de Bangor 
a Cestrens. Polychron. l. 4. c. 31. .. This Monastery which Ranulphus speaks of, is by our Beda called Bamornabyrig lingua Anglorum, in quo (says he) tantus fertur fuisse numerus Monachorum, ut cum in Septem portiones esset cum Praepositis sibi Rectoribus Monasterium divisum, nulla harum portio minus quam Trecentos homines haberet, qui omnes de labour manuum suarum vivere solebant 
b Bed. Eccl. Hist. lib. 2. c. 2. . But concerning Abbots, having nothing to do with them, nor they with us; it being also well known what once they were in this Kingdom, and what now they are where the Pope doth exercise his Jurisdiction, it may here suffice only to observe, That the word [abbots] hath anciently had a wide and far different signification from what we now commonly understand thereby; for in and among the Laws of King Aethelstan, we find the words [quatuor Abbates] to be taken (according to the Glossographist thereon) for quatuor hebdomadas: That Law directs how and in what manner the Hundred Court shall be held; the words are, Hoc est judicium qualiter HUNDREDUM teneri debeat: In primis ut conveniant semper ad quatuor ABBATES, & faciat omnis homo Rectum alii 
c Hist. Angl. Scrip. Antiq. col. 847. . which the Glossary calls Locum plane mendosum, and by the quatuor abbots will have quatuor hebdomadas to be understood; which is the more probable by what appears in one of the Laws of King Edward, Father of the said Aethelstan, who began his Reign in An. 901. being the Son of King Alured: the words of which Law are, Volo ut omnis praepositus habeat GEMOTUM semper ad QUATUOR EBDOMODAS, & efficiat ut omnis homo rectum habeat, & omne placitum capiat terminum quando perveniat ad finem 
d Ibid. col. 837.  By the word [Gemotum] in that place is meant Conventus Publicus, Concilium, but chief Placitum, as appears by the 107th Law of King Kanute, made for the indemnity of such as should have recourse to Tribunals, for their safe coming and going to and from Courts of Justice. Et volo ut omnis homo pacem habeat eundo ad gemotum, 
Quam varia sint gemotorum genera, vid. Equit. Doct. in suo Glossario.  vel rediens de gemoto, id est, placito, nifi fit fur probatus. It is a word from the Saxon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, convenire, unde Nostratium, to meet. But this digression the Reader must put on the abbot's score, in regard the word [abbots] gave the occasion thereof; which may be but a Venial offence, in regard that that Ecclesiastical Dignity is with us laid aside, though their Possessions had better Fortune; yet when King H. 8. did dissolve them, he did not only augment the number of colleges out of the Revenues thereof, but also erected divers new bishoprics, as at Westminster, Oxford, Peterborough, Bristol, Chester, and Gloucester; all remaining at this day save that at Westminster, which being restored to its pristine Institution by Queen Mary, and Benedictines placed therein, was after by Queen Elizabeth converted to a Collegiate Church. In this Chapter there is mention also made of Chauntries, Cantaria, or if you please, Aedes Sacra: ideo Instituta & Dotata Praediis, ut missa ibidem Cantaretur pro anima Fundatoris & propinquorum ejus. Ita Spelm. Of these and Free chapels about 2374. were dissolved by King H. 8. to whom they were given by Parliament in the 38th year of his Reign: The Religious Houses under 200 l. per An. were granted to him in An. 1535. All greater Monasteries in An. 1538. The chantry and Free chapels in An. 1545. Of these Chanteries Forty seven belonged unto St. Paul's, London.  
And as for Annates or First-Fruits, 
Annates or First-Fruits.  it is Historically reported to us, that they were first introduced into England in the time of King Edward the First by Pope Clement, who succeeded Benedict. For this Pope Clement after the death of Pope Benedict, was no sooner Elected and enthroned in France, but he began to exercise his new Rapines here in England, by a compliance with the said King Edward, in granting him a Two years' Disme from his Clergy for his own use, though pretended for the aid of the Holy Laud, that with the more ease himself might exact the First Frutts of vacant Ecclesiastical Benefices to augment his own Revenues, though not within his own Territories. This is said to be the first precedent of any Pope's reserving or exacting Annates or First-Fruits of all Ecclesiastical Dignities and Benefices throughout England, extant in our Histories: which, though reserved but for Two years by the Pope at first, yet afterwards grew into a custom by degrees, both in England and elsewhere. And thus they remained in the Pope until an Act of Parliament entitled the Crown thereunto in the time of King Henry the Eighth, which afterwards were restored again to the Pope by Queen Mary; but in the first year of Queen Elizabeth an Act passed for restoring the Tenths and First-Fruits to the Crown. Notwithstanding what some Historians have (as aforesaid) reported touching the first introduction of First-Fruits into England by Pope Clement in the time of King Edward the First, it is most evident that they were to be yielded and paid here in England some hundreds of years before that time, as appears by the Laws of Ina King of the West Saxons, who began his Reign in the year 712. The Law was this, viz. Primitias seminum quisque ex eo dato domicilio, in quo ipso Natali die Domini commoratur. Lambert. de Leg. Inae Reg. And by the Laws of King Edgar, who began his Reign in the year 959. it is Ordained in these words, Ex omni quidem ingeniorum terra, ipsae Seminum Primitiae primariae penduntor Ecclesiae. Idem de Leg. Edgari Reg. Ipsas autem Seminum Primitias sub Festum Divi Martini reddito. Ibid. The like you have in the Laws of King Kanute, who began his Reign in the year 1016. Seminum Primitiae ad Festum Divi Martini penduntor: si quis dare distulerit, eas Episcopo undecies praestato, ac Regi Ducenos, & viginti Solidos persolvito. Idem Lamb. It is supposed, that Boniface Archbishop of Canterbury in the Reign of Ed. 3. was the first that made way for Popes to Appropriate Annates and First-Fruits in this Kingdom to themselves; for the said Archbishop An. 1246. upon a feigned pretence, that his Church of Canterbury was involved in very great Debts by his Predecessor, but in truth by himself, to carry on foreign Wars, and gratify the Pope, procured from Pope Innocent a grant of the First years Fruits of all Benefices, 
Anon. Hist. of the Church of Great Britain, p. 80.  that should fall void within his diocese for the space of Seven years, till he should thence raise the Sum of Ten thousand Marks yearly out of the bishopric. So that this Grant of First Fruits of Benefices to Boniface the said Archbishop, made way for Pope's Appropriating First-Fruits and Annates to themselves soon after. But in process of time the Parliament having (as aforesaid) settled them on King H. 8. there was an Office thereof established in London, An. 1538. whereby the King's Revenue increased exceedingly from this Office for the receipt of Tenths and First-Fruits, which was then first erected in London; such Moneys being formerly paid to the Pope, for that the Tenths and First-Fruits of the English Clergy were yearly returned to Rome. But now the Pope being dead in England, the King was found his Heir at Common Law, as to most of the Power and Profit he had usurped, and the Rents which the Clergy paid were now changed together with their Landlord; for Commissioners (whereof the Bishop of the diocese was ever one) were appointed to estimate their Annual Revenues, that so their Tenths and First-Fruits might be proportioned accordingly. At this time the Oblations from the Living, 
An obits was at 40 s. in St. Paul's London; yet at Waltham Abbey, but at 2 s. 2 d. received by the churchwardens.  and Obits from the Dead, were as duly paid as Predial Tithes, and much advanced the Income: but Queen Mary did after by Act of Parliament exonerate the Clergy from all these First-Fruits, and ordered the payment of the Tenths to Cardinal Poole, for discharge of Pensions allowed to certain Monks and Nuns; but Queen Elizabeth in the first year of her Reign resumed these First-Fruits and Tenths, only Personages not exceeding ten Marks, and Vicarages ten Pounds, were freed from First-Fruits. vid. Stat. 1 Eliz. cap. 4.  
That which in the method of the ensuing Treatise next offers itself to consideration, 
Altarage.  is Altarage; Altaragium, taking its denomination from the Altar, because (to speak properly) Altargium est Emolumentum Sacerdoti provenieus ratione Altaris, ex Oblationibus sc. vid. Jo. de Athon. in Constit. Legatim. Otho. c. Auditu ver. Proventus. Touching this Altarage, there is an Ancient Record in the time of King H. 3. about the year 1234. in the Chronicle of William thorn the Augustine Monk of Canterbury, whereof (among other things) there is mention made in a certain Composition between Edmond Archbishop of Canterbury and the Abbot of St. Augustine's in Canterbury, as to whom it may be paid, and to what value it may extend: The Composition runs thus, viz. Noverint universi praesens Scriptum inspecturi vel audituri, Quod cum inter Dominum Ed mundum Dei gratia Cantuariensem Archiepiscopum totius Angliae Primatem, Magistrum S. de Langeton, Archidiaconum Cantuariensem ex una parte, & ●●minum Robertum Abbatem & Conventum S. Augustini Cantuariae ex altera, Controversia diutius mota fuisset super Ecclesia de Chistlet & Jurisdictione, etc. Item pro bono pacis concedunt Abbas & Conventus, quod Archidiaconus quando Visitationis exercet Officium, in Ecclesiis eorum sicut in aliis Ecclesiis Diocesis Cantuariensis recipiat Procurationem consuetam, exceptis, etc. In Capellis vero de Menstre scil. Sanct. P. & Johannis, & Laurentii praesentabunt Domino Archiepiscopo idoneos Capellanos perpetuos ad Altaragia, ita tamen quod singula Altaragia valeant decem Marcas, qui hac portione tantum erunt contenti sub poena amissionis dictae portionis, 
Hist. Angl. Scrip. Antiq. col. 1882, 1883.  si coram Judice quocunque ex certa scientia plus aliquando petierint, praesertim cum Vicarius Matricis Ecclesiae de Menstre, etc. Whereby it is very evident, That these Altarages issued out of the Offerings to the Altar, and were anciently payable to the Priesthood, as well as Tithes and other Oblations. It is most probable, that the greatest Annual Revenue by Altars, if not by Altarages, in any one Church within this Realm, was in that of St. Paul's, London; for it seems when Chanteries were granted to King Henry the Eight, whereof there were 47 belonging to St. Paul's, as aforesaid, there were in the same Church at that time no less than Fourteen several Altars: 
Full. ch. Hist. lib. 6. p. 352.  And although they were but Chantery-Priests that Officiated at them, and had their Annual Salaries on that account, distinct from Altarages in the sense of Oblations aforesaid, yet in regard these Annual Profits accrued by their Service at the Altar, they may not improperly be termed Pension-Altarages, though not Oblation-Altarages.  
Concerning Tithes, 
Tithes.  whether they are eo nomine due and payable now under the Gospel, is not to our purpose either to question or determine; it will be agreed on all hands, that the Law requires the payment thereof, and hath stated it within the cognizance of the Ecclesiastical Jurisdiction. Historins of good credit and great Antiquity tell us, That Aethelwolfe King of the westsaxons gave the Tenth part of his Kingdom unto God, whatever his design was by it, whether for the Redemption of his and his Ancestors Souls, or otherwise, yet it is now above 800 years since he Decimated totum Regni sui Imperium; An. 855. Aethelwolphus Rex Decimam totius Regni sui partem ab omni Regali servitio & tributo liberavit, & in sempiterno graphio in cruse Christi, etc. uni & trino Deo immolavit. Simeon. Dunelm. Hist. de Gest. Reg. Angl. Likewise Aethelstan, who Reigned about 70 years after Aethelwolfe, in the first of all his Laws made special provision for the punctual payment of Tithes, Ego Adelstanus Rex, etc. Mando Praepositis meis omnibus in regno meo, etc. ut in primis reddant de meo proprio Decimas Deo, tam in vivente captali quam mortuis frugibus terrae, & Episcopi mei similiter faciant de suo proprio, & Aldermanni mei & Praepositi mei. Et volo ut Episcopi & Praepositi hoc judicent omnibus, qui eis parere debent, etc. Recolendum quoque nobis est, quam terribiliter in Libris positum est, Si Decimam dare nolumus, ut auferantur à nobis Novem parts, & solummodo Decima relinquatur. This AEthelstan dying without Issue was succeeded in the Kingdom by his Brother Edmond, in the Second of whose Laws we find it thus Enacted, in a great Synod convened at London, where Odo and Wolstan Archbishops were present, Decimas Praecipimus omni Christiano super Christianitatem suam dare, etc. Si quis hoc dare noluerit, Excommunicatus sit. And in the First of King Edgar's Laws you have these words, Reddatur omnis Decimatio ad Matrem Ecclesiam cui Parochia adjacet. Also in the Fourth of King Ethelred's Laws it is commanded in these words, Praecipimus ut omnis homo, etc. det rectam Decimam suam, sicut in diebus Antecessorum nostrorum fecit, quando melius fecit, hoc est, sicut aratrum peragrabit decimam acram. Et omnis Consuetudo reddatur ad Matrem nostram Ecclesiam cui adjacet. Et nemo auferat Deo, quod ad Deum pertinet, & Praedecessores nostri concesserunt. And in the Ninth of King Alured's Laws, Si quis Decimam contra teneat, reddat LASHLITE cum DACIS, 
Daeis pro Danis. Lashlite, h. e. Muleta quinque Marcaruma Wita, j.e. Mulcta 30 Solidorum. Secundum Glossar. Hist. Angle. Seriptores Decem.  WITAM cum ANGLIS. And in the Laws of the conqueror it is particularly Ordained, That de omni annona Decima garba Deo debita est, & ideo reddenda. Si gregem Equarum habuerit, pullum reddat decimum; qui unam tamen vel duas habuerit, de singulis pullis Singulos denarios. Similiter, qui Vaccas plures habuerit, decimum vitulum: qui unam vel duas, de Vitulis singulis Obolos singulos. Et qui Caseum fecerit, det Deo decimum; si vero non fecerit, Lac decima die. Similiter decimum Agnum, decimum Vellus, decimum Caseum, decimum Butyrum, decimum Porcellum. Item, de Apibus vero Similiter Commodi. Quinetiam de bosco, & prato, & aquis, de molendinis, parcis, vivariis, piscariis, virgultis, & hortis, & Negotionibus, & de omnibus rebus quas dederit Deus, decima pars ei reddenda est, qui Novem parts simul cum Decem largitur. Qui eam detinuerint, per Justitiam Episcopi, & Regis si necesse fuerit, ad redditionem arguantur. It is on good ground that the Canonists do hold, That Tithes Originally and ex sua natura are of Ecclesiastical cognizance, beside the Statute of primo R. 2. That pursuit for Tithes ought, and of ancient time did pertain to the Spiritual Court, notwithstanding what others assert, That in their own nature they are a Civil thing, and that (as Bract. lib. 5. fol. 401.) they were annexed to the Spiritualty.  
In the Chapter of Tithes in this ensuing abridgement you find the Order of Cistercians, so called from Cistercium in Burgundy, being but refined Benedictines, exempted from paying of Tithes: so also were the Orders of templars and Hospitallers, otherwise called of St. John's of Jerusalem; for anciently the Lands of abbeys did pay Tithes to the Parish-Priest as well as the Lands of laymen, but in the year 1100 they obtained (besides the Appropriations they then had) of Pope Paschal the Second at the Council of Mentz, that their Lands for the future should be discharged thereof. But this Exemption was after limited and restrained by Pope 
* P. Adrian 4. was an English man, and had been a Benedictine Monk of St. Alban.  Adrian the Fourth about the year 1150. (excepting the Tithes of new improvements in their own occupation by culture, Pasture and Garden-Fruits) 
† Vid. Alex. 4. in 6. de dec. c. 2. Statuto. & Innoc. 8. To. 2. p. 4. 10. Edit. Colon.  only the said Three Orders were exempted from the general payment of all Tithes whatever. The templars and Hospitallers were mere laymen, yet they were exempted as well as the other: Yet the Lateran Council in An. 1215. Ordered, That this privilege should not extend to Covents erected since that Lateran Council, nor to Lands since bestowed on the said Orders, though their Covents were erected before that Council. Insomuch that when the said Cistercians, contrary to the Canons of that Council, purchased Bulls from the Pope to discharge their Lands from Tithes: King H. 4. Nulled such Bulls by the Stat. of 2 H. 4. cap. 4. and reduced their Lands to a Statu quo. These Exemptions from payment of Tithes in this or that particular Religious Order, was not known in the World, when Aethelwolph Son of Egbert, whom he succeeded as King of the westsaxons, gave (as aforesaid) Tithes of all his Kingdom, and that freed of all Tributes, Taxes, and Impositions, as appears by his 
* Vid Ingulph. & Malmesb. Gest. Reg. lib. 2. cap. 2.  Charter to that purpose; having at a Solemn Council held at Winchester, subjected the whole Kingdom of England to the payment of Tithes. True it is, that long before his time many Acts for Tithes may be produced, such as the Imperial Edicts, Canons of some Councils and Popes, beside such Laws as were made by King Ina and Offa; yet the said Edicts and Canons were never received in their full power into England by the consent of Prince and People, nor were King Ina and Offa (though monarches of England, as it were, in their turns) such Kings as conveyed their Crowns to the Issue of their Bodies, but the said Aethelwolph was Monarcha, Natus, non factus; and although before his time there were monarches of the Saxon Heptarchy, yet not successive and fixed in a Family; but the said King Egbert, being the first that so obtained this Monarchy, as to leave it by descent unto his Son, the said Aethelwolph, he thereby had the more indisputable power to oblige all the Kingdom unto an observance of the said Act.  
In the said Chapter of Tithes there is also mention made of Mortuaries, 
Mortuaries.  as having some relation of Tithes, wherein is showed what it is, when, by and to whom, and wherefore to be paid. By the Stat. of 21 H. 8. they are reduced to another Regulation, than what was in the time of King Henry the Sixth. A Mortuary was then the Second best Beast whereof the party died possessed; but in case he had but two in all, than none due. It was called a Corse-Present, because ever paid by the Executors, though not always bequeathed by the dying party. All persons possessed of an Estate, (Children under Tuition, and Femes Covert, but not Widows, excepted) were liable to the payment thereof to the Priest of that Parish, where the dying party received the Sacrament (not where he repaired to Prayers;) but in case his House at his death stood in two Parishes, it was then divided betwixt them both: And it was given in lieu of Personal Tithes, which the party in his life time had through ignorance or negligence not fully paid— Lindw. Cons. de Consuetud. Such of the ancient Lawyers as were unacquainted with this word Mortuarium in the aforesaid sense as we now use it, took Mortuarium only pro derelicto in morte, & say of it, That it is Vocabulum novum & harbarum; but we understand it better, where of custom it is due and payable. These Mortuaries, where by the custom they are to be paid, were ever in consideration of the omission of Personal Tithes in the party's Life-time, which Personal Tithes were by the Canon Law to be paid only of such as did receive the Sacraments, and only to that Church where they did receive them, as may be inferred plainly from cap. Ad Apostolicae de Decimis. But observe, says Lessius, that in many places these Personal Tithes have been quite taken away, and in some places they are paid only at the end of a man's Life, as among the Venetians, (which manner of payment seems to have a great resemblance to these Mortuaries;) and in some places they are paid only ot the end of the year. And in like manner many Predial and mixed Tithes in divers places are also abolished; which (says he) is for the most part done by the permission of the Church, where men have been observed to pay them with regret and much against their minds, nor hath the Church in such cases thought fit to compel them to it, on purpose to avoid scandal. Lessius de Just. & jur. lib. 2. cap. 39 Dub. 5. nu. 27. And in such places where the custom is to pay a Personal Tithe, when any persons shall Hunt, Fish, or Fowl to make gain or merchandise thereby, and it be neglected to be paid, 
Vid. Lesle. de ma. acq. dom. lib. 2. c. 5. Dub. 7. nu. 38.  whether Restitution or Compensation by way of a Mortuary (where Mortuaries are Customable) be in that case due by Law, is a Question, which by Covarruvies may be well held in the Affirmative.  
Although the face of the Church as well as State began to look with a purer (though less Sanguine) complexion, 
Banns.  when Queen Elizabeth adorned the Crown, than when her Sister wore it, yet even in Queen Elizabeth's time there crept such abuses into the Church, that Archbishop Parker found it necessary to have recourse unto the Power given him by the Queen's Commission, and by a Clause of the Act of Parliament, For the uniformity of Common Prayer and Service in the Church, etc. whereupon by the Queen's consent, and the Advice of some of the Bishops, he sets forth a certain Book of Orders to be diligently observed and executed by all persons whom it might concern; wherein it was Provided, That no Parson, Vicar, or Curate of any Church Exempt, should from thenceforth attempt to conjoin, by solemnisation of Matrimony, any, not being of his or their Parish-Church, without good Testimony of the Banns being asked in the several Churches where they dwell, or otherwise were sufficiently licenced. Heyl. Hist. of Q. Eliz. An. Reg. 3. Banns or Banna, that word Bannum is sometimes taken pro Mandato, scil. Edicto; it is a word of divers significations, as appears almost by all the Glossographists and Feudists; it sounds sometimes like Edictum, sometimes like Mandatum or Decretum, and sometimes (as here) like Proclamatio, Saxonibus gebann, whence there is their gebannian pro Proclamare, edicere, mandare, ut & nostratium Bannes, pro Nuptiarum foedere Publicato. This Publication of Banns was cautiously ordained for the prevention of Clandestine Marriages, which were prohibited in this Kingdom above 500 years since, as a thing contrary in all Ages to the practice of all Nations and Churches where the Gospel was received; and therefore at a Council convened at Westminster in the year 1175. by Richard Archbishop of Canterbury under the Reign of King H. 2. it was ordained, That no person whatsoever should solemnize Marriage in any clandestine manner, and in case any Parson should have a hand therein, he was to be suspended ab Officio for the space of Three years: Nullus Fidelis cujuscunque Conditionis sit, occulte Nuptias faciat, sed à Sacerdote publice nubat in Domino. Si quis ergo Sacerdos aliquos occulte conjunxisse inventus fuerit, triennio ab Officio suspendatur. Can. 17. dict. Council. It is Recorded by good Historians, that Anciently in Ireland they were so far from Publishing these Banns before Marriage, that they rejected all Matrimonial Laws whatever, insomuch that Polygamy was very common amongst them until the Reign of King H. 2. who sent Nicholaus his Chaplain, and Radulphus Archdeacon of Landaff into Ireland, where at cassel they held a great Council under Pope Alexander; in which Council Three things were specially ordained, the one concerning Baptism, to be In the Name of the Father, Son, etc. for till then their custom was to Dip the Child, as soon as it was born, three times in Water, but if it were a Rich man's Child, then in Milk: Another concerning Tithes to be duly paid to Ecclesiastical Persons, for till then many of them scarce knew whether Tithes ought to be paid or not: And the third was concerning Marriage, that it should be solemnised jure Ecclesiastico, plerique enim (says the Historian) illorum, quot uxores volebant tot habebant. There was also a Fourth thing Decreed in that Council, and that was concerning Testaments, and distributions of the Goods and Chattel of persons deceased.— Chron. Jo. Bromt. de Temp. H. 2.  
Within the cognizance of the Episcopal or Ecclesiastical Jurisdiction are also all matters relating to the sin of Adultery; 
Adultery.  the Bishop's Jurisdiction herein is very Ancient, as appears by the Laws of King Kanute, made above 650 years since, in Leg. 80. Si quis Sponsam & Concubinam simul habuerit, non faciat ei' Presbyter aliquid rectitudinum, quae Christiano fieri debent, priusquam poeniteat, & ita emendet sicut Episcopus injunget. Such Adultery is a kind of double Fornication, according to the definition in the 75th of the same Laws, Adulterium est, si Sponsus cum vacua fornicetur, & multo pejus si cum sponsa alterius. It was a strange and most cruel punishment that Philip Earl of Flanders, in the time of King H. 2. caused to be executed on Walter de Fontibus, taken (as reported) in Adultery with the Countess Isabel: who commanded that he should be beaten to death with blows or strokes of Keys tied up in bundles; and being dead, his Body to be hung by the Feet on a Fork with the Head downwards, in a place prepared for that purpose, there to remain ignominiously exposed to the view of all Spectators. Radulph. de Diceto, Imag. 
In Spain it is lawful for a man to kill his Wife or his Daughter, taken by him in Adultery. Dr. Taylor.  Hist. The punishment of an Adulteress according to the foresaid Laws of King Kanute was much more favourable; for by the 78th of those Laws she was to lose but her Nose and her Ears, Si Mulier, vivente Marito suo, faciat Adulterium, & manifestetur, etc. ipsa perdat Nasum & Aures. But the Emperor Aurelian is said to have punished it in one of his soldiers, for committing it with his Hostess, in a way of Cruelty little inferior to that practised by the said Earl of Flanders; for he commanded the heads of two Trees growing nigh together to be bowed down, the soldier's Legs to be fast tied thereunto, then to be suddenly let go; whereby he was torn in two parts, the one hanging on the one Tree, the other on the other, and so to remain as a terrifying Spectacle to his Army. Buc. Chron. Notwithstanding what was first abovesaid in reference to what Jurisdiction the cognizance hereof did anciently belong in the days of King Kanute, viz. That the Offender should make such satisfaction as the Bishops should enjoin; yet it is evident that after this, viz. in the conqueror's time, Fornication and Adultery were punishable in the King's Temporal Court, and the Leets especially (by the name of Lecherwite,) and the Fines of Offenders assessed to the King, though now it merely belongs to the Church, a precedent whereof we have in the Church of Corinth, which by St. Paul's Command proceeded against the Incestuous person; but as to a Rape, there being force and violence in the case, the Temporal Court and Common Law (were there no Statute in the case) hath the best Right to the trial and punishment thereof. By the Conqueror's Laws the punishment of Adultery was only pecuniary, Leg. 14. Qui Desponsatam alteri vitiaverit, 
Wera, h. e. pretium Nativitatis hominis.  forisfaciat Weram suam Domino suo. Yet in some cases it was Capital, according to the said Conquerors Laws, as in Leg. 37. Si Pater deprehenderit filiam in Adulterio in domo sua, seu in domo generi sui, bene licebit ei our (league for san Occire, Occidere) Adulterum. Lambert. de Priscis Angl. Legibus.  
Forasmuch as Bastards and matters of Bastardy are within the cognizance of the Ecclesiastical Jurisdiction, 
Bastardy.  some notice is taken thereof in the next place of this abridgement. By Bastard we commonly understand prolem ex illicito concubitu procreatam. The most Famous of this kind that we meet with in History, and that concerns us, was William the conqueror, of whom Simeon Monachus Dunelmensis in his History says, That An. 1035. Obiit Robertus Dux Normandorum, cui successit Willielmus Bastard filius ejus in puerili aetate. Of whom also Radulphus de Diceto in suis Abbreviationibus Chronicorum on the year 1036. says, That Obiit ROBERTUS Dux NORMANNIAE Frater Tertii RICHARDI, ab JEROSOLIMIS rediens, apud NICEAM Civitatem. Cui successit WILLIELMUS BASTARD filius ejus in puerili aetate, qui ANGLIAM postea conquisivit; pater WILLIELMI Regis RUFI, & HENRICI. It is frequent in History to find William the Conqueror surnamed the Bastard; nor did himself in the least disdain to style himself by that Addition; for in his Epistle to Alanus Earl of Britannia Minor, we find him thus styling himself, Ego Willielmus cognomento Bastardus. And no wonder (says the Glossographer on the said Historians) when the Title or Name of Bastard in those days was used by some as a mark of Honour; the which he is the rather induced to believe, for that (vocis derivationem Kilianam amplectens) scil. a best-aerd, that is, optima indoles sive natura, there is no cause of being ashamed thereof: Illegitimo enim (says he) & furtivo concubitu procreati, animo plerunque sunt alacri & elato, ingenio sagaci, & judicio exacto: hanc (inquam) vocis originationem potius probarem, cum in caeteris nulla sit gloriandi causa. By the Canon Law a Bastard is prohibited from taking Orders, as also from having an Ecclesiastical Benefice. c. 1. & per tot. De filiis Presbyt. The said Prohibition is grounded by that Law on Deut. 23. Non i● gredietur Manzer, hoc est, de Scorto Natus, in Ecclesi●m Domini usque ad decimam generationem. Yet the Pope doth usually dispense with that Canon, specially where such Illegitimates live commendably, and follow not the vicious practice of their Parents; In illis qui paterna vitia non sequuntur, possunt suffragari virtutes, quae inducent S●mmum Pontificem ad Dispensandum, si morum honestas eos. Commendabiles reddat. c. Presbyterorum 56. Distin. And lest such should conceive themselves causelessly injured by that Prohibition, the Canonists assign three Reasons for it; the one is the Dignity of the Clergy and the Sacraments, which ought not to be committed to Infamous persons: Another is in detestation of their parent's Crime, which commonly extends also to their Children: The third is the Parents Incontinency, and because the Children do for the most part inherit their Parents Vices.— cap. Si gens Angelorum. 56. Distin. Yet a Modern Historian speaking of Pope Leo the Seventh, An. 935. says (out of Luitprandus) that Bozon Bishop of Placentia, Theobald of Milan, and another great Prelate, were all the Bastards of Hugo King of Italy by his three Queens Bezola, Rosa, and Stephana, whom he termed Venus, Juno, and Semalo. vid. Prideaux 's Compend. Introduct. of Hist. p. 106. Edit. 5.  
Next follows the matter of Divorce, 
Divorce.  which is the separation of Married persons by force of the Sentence of an Ecclesiastical Judge qualified to pronounce the same. Adultery in either party is the common, though not the only, cause of Divorce. Some there are (it seems) of great Reputation in the Church (for this is Quaestio tam Theologiae quam Juris) who positively condemn it as unlawful for a Man or Woman to live with their Husband or Wife respectively, if either of them be notoriously guilty of Adultery. Of which Opinion was St. Hierom, saying, That a man is Sub maledictione si Adulteram retineat. 
In Matth. 19  And St. chrysostom, Fatuus & iniquus, qui retinet Meretricem; Patronus enim Turpitudinis est, 
Caus. 32. q. 1. c. Sicut.  qui celat Crimen uxoris. So that it was none of Cato's wisdom, nor any great piece of kindness done his Friend Hortensius, to lend him his wife Martia, whose Chastity deserved a better requital. Socrates also is reported to be as kindhearted in this matter, as ever Cato was; and they are both said to lend their Wives as freely as a man lends an Utensil: As these Wife men were beyond the reach of a Diovorce, so they were more serious than to blush at Cornutism, the common Fate of such Philosophers. St. Basil was of Opinion, That it was lawful for a Woman still to cohabit with an adulterous Husband; to which purpose he made a Canon, and commanded it to be done in his Church, as appears in his Epistle to Amphilochius, 1. Can. 9 & 21. This also was the Sentence of St. Austin to Pollentius, and in his Book de Adulterinis Conjugiis. David received his wife Michal, who had lived with another man. St. Basil it seems, though he be of opinion that the Woman should still live with the Adulterous Husband, 
Vid. Dr. Taylor Cases of Consc. lib. 1. c. 5. nu. 9  yet does not think it fit, that the man should be so obliged as to his Adulterous Wife. The Council of Eliberis refused to give the Sacrament to a clergyman, that did not instantly expel from his house his Wife whom he knew to commit Adultery: And by the Council of Neo-Caesarea he was to be deposed from his Dignity in the same case. In the Council of Trent there was a Canon made, having an Anathema added to it, which condemned those that say, That the Bond of Marriage is dissolved by Adultery, 
Trent. Concil. lib. 8. 1563.  and that either of the parties may contract another Matrimony whilst the other liveth: And by the Fifth Anathematism of that Council, 22. July 1563. were condemned Divorces allowed in Justinian's Code: which Anathematism was added at the instance of the Cardinal of Lorain, to oppose the Opinion of the Calvinists. In the same Council upon the Article of Divorce, 
Father Soto.  it was said by one of the Fathers there, that the Matrimonial Conjunction was distinguished into Three parts; the Bond, the Cohabitation, and the Carnal Copulation: inferring, that there were as many Separations also: and that the Ecclesiastical Prelate had power to separate the Married, or to give them a Divorce in respect of the Two latter, 
Concil. Trent. lib. 7.  the Matrimonial Bond still standing sure, so that neither can marry again. Yet the Gospel admits but of one cause of Divorce, viz. Fornication, which should seem to be understood de Vinculo, because Divorce in the other respects may have many Causes.  
Of all Personal Actions within the Ecclesiastical Cognizance, 
Defamation.  that of Defamation seems to be of the tenderest concern, if that be observed which Solomon says, That a Good Name is to be chosen before great Riches; 
Prov. 22. 1.  where by Name, nothing can be understood other than a man's Credit, Fame, and Reputation in the World: So that the Inference is clear, a Defamer is the worst of thiefs, the Sacrilegious ones excepted; yet were it not for the sweetness of Revenge, and the encouragement of the Law, such Actions might be better spared than what it costs to maintain them; and such ill-scented Suits do savour worse being kept alive in a Tribunal, than they would by being buried in Oblivion, specially if the Defamed considered, that to forget Injuries is the best use we can make of a bad Memory. This Defamation is not properly that, which we call Detractio, for Detractio in its proper signification is alienae famae occulta & injusta violatio; but Defamation, though it be an unjust, yet it is not an occult violation of another man's Fame or Reputation; they have indeed both the same end, but they do not both take the same way to that end: they both aim and design the extinguishing or diminishing the Credit and Repute which one man hath in the mind and good opinion of another; but the one doth it more openly and publicly, at least not in so clandestine way as the other. This Defamatio is of near affinity to that which we call Contumelia, which is an unlawful violation of a persons Honour and Reputation by undecent and false Speeches, Gestures, or Actions, on purpose to disgrace him: only in this also they differ, that Defamatio may be of one man to another in the absence of the Defamed; but Contumelia is not but to the party present, vel absenti tanquam praesenti, that is, in the prrsence of such as have a relative representation of the person Contumeliously so reproached. Touching Actions of Defamation there are two Questions raised, rather by the Casuists than Canonists; the one, Whether the Heirs of the Defamer be obliged to make restitution of damage to the Defamed, in case the Defamer died before satisfaction made? the other, Whether satisfaction for the damage done by Defamation, be to be made to the Heirs of the Defamed, in case he died before such damages were recovered by him? Although both these Questions are answered in the Negative by that known Rule in Law, Actio personalis moritur cum persona; the Reason being, because the Obligation arising thence is merely Personal, & non est ad aliquid dandum, sed ad aliquid agendum; yet Navar. Adria●. and others, who hold the contrary, will not be so answered; for though they agree the Rule of Law, yet they deny the foresaid reason of that Rule to hold in this case, for (say they) the obligation in this case is not purely and merely Personal, as is commonly supposed, but doth quodammodo affect the Estate of the Defamer, whether alive or dead: He gives an Instance, A man sets his neighbour's House on fire, and dies; his Heirs shall make good the damage done by that fire: A man's Good Name and Reputation is far more precious than his habitation: he that consumes that Good Name and Credit without cause, shall refund the damage out of his Estate, and death itself (before satisfaction made) shall not excuse his Heirs. vid. Navarr. c. 18. nu. 45. & Adrian. quodlibet 11. So likewise as to the other Question, Vtrum defuncto sit Fama restituenda? there are who hold it in the Affirmative, Quia Fama est bonum, quod homo etiam post mortem censetur possidere. But when all is said (for some will superabound in their own judgements) the said Rule of Law must stand void of all Exceptions, and hold good and applicable to the Premises, That Actio Personalis moritur cum persona.  
Among all those horrid Offences whereby the Church is or can be violated, 
Sacrilege.  that of sacrilege seems to look with the blackest face; which, though as a Felonious act, may fall under a Temporal cognizance, yet the Canon Law concludes it as a thing in its own nature properly subjected to the determination of the Ecclesiastical Jurisdiction. 
An. ●●4.  It is now nigh a Thousand years since withered King of Kent convened a Synod, wherein Brithwa●d Archbishop and Primate of all Britain was precedent: In which Synod it was so long since declared in these words, 
Ex M S. in Colleg. C. C. Cant. Chron. 〈◊〉.  viz. Horrendum est hominibus Deum vivum expoliare, tunicamque ejus & haereditatem semdere. By the Laws of Alured King of the Westsaxons, Leg. 7. the Sacrilegious person was to lose that hand wherewith he did the Fact, Si quis in Ecclesia furetur aliquid, amputetur manus de qua furatus est. In the time of Queen Elizabeth there were a Sacrilegious kind of Church-Plunderers, who under pretence of abolishing Superstition, demolished Ancient Tombs, razed the Epitaphs and Coat-Armours of most Noble Families, and other Monuments of venerable Antiquity, took the Bells out of Churches, and uncovered the Roofs of Churches by plucking off the Lead; but these Birds of Prey had their wings soon clipped by the said Queen's Proclamation, which was effectually put in execution for the restraint of such Sacrilegious Rapines: King Guthred, who by St. Cuthbert's Command was in Childhood taken out of a Servile estate and made King of Northumberland about the year 890, made such an Edict against the Sacrilegious persons as thundered them all into Hell, Gravissimae maledictionis Anathemate percussit, ut cum Juda Proditore Domini, damnationis sententia feriantur. Simeo. Hist. de Dunelm. Eccl. Nor are Korah and his Confederates the only persons whom the Earth interred alive for their Rebellion against the Sacerdotal Function; for (if you will credit Tradition) the like hath since happened in the case of sacrilege to the Scotch Army, which in the said Guthred's time had no sooner (according to their Modern Practice) fleeced the Church of Lindisfarne nigh Tweed, to tunic their Longshanks, but the Earth greedily opened her mouth, and devoured these Devourers, at that very instant when they were all ready to engage in a battle with the said King of Northumberland. dict. Sim. ibid. But not to rake up Antiquity for discovery of what Legends and Romances lie under the Ashes thereof; this is as well True as Chronicled, That King William Rufus was Casu fortuito, non voluntary, darted to death instead of a Stag by a certain Frank, one Walter Terrell, in the same place, which his Father the Conqueror had Sacrilegiously disecclesiated for more than 30 Miles, to Forest it into Speluncas latronum & lustra ferarum. This was a real sacrilege in a Victorious Monarch, which added little to the Credit of his Conquests; but that in Pope Boniface the Seventh (if Historians do not belly him) was a Personal sacrilege, who when he understood that the Roman Citizens conspired against him, took with him all the Jewels of the Church of St. Peter and fled to Constantinople, where he converted the same into money for the proper use of his Sacrilegious Holiness.  
Another gross offence, 
Simony.  and little inferior to the former, within the Cognizance of the Church, is Simony, or that Art magic whereby Parsons, scarce worth the name of Persons, as the Devil did into our Natural Mother insensibly, so they Serpentine themselves into our Spiritual Mother, the Church visible, invisibly. Hildebrand, or by an alias Pope Gregory the Seventh, convened a Synod General against Church-purchasers and buyers of Ecclesiastical live, and against such Bishops as from the hands of Kings or Emperors, receive the investure of their bishoprics per traditionem Annuli & Baculi; he said, That Quisquis Episcopatum mercatur, contra Spiritum Sanctum, qui donum Dei dicitur, facit. He likewise made a Decree in the year 1074, That not only the Buyer and Seller of any Ecclesiastical Office, but whoever also that is consenting thereunto, shall be damned with Simon Magus. Simeon Dunelm. Hist. de Gest. Reg. Angl. It is unavoidable, for the Pope, who hath the Keys of Hell by his girdle, hath so Decreed it. But Pope Gelasius was in this matter better natured by far, for he left some place for Repentance, and proceeded not an inch beyond a Reversable Anathema; Si quis vendiderit, aut emerit vel per se, vel per alium, Episcopatum, Abbatiam, Deconatum, Archidiaconatum, Presbyteratum, Praeposituram, Praebendam, Altaria, vel quaelibet Ecclesiastica Beneficia, Promotiones, Ordinationes, Consecrationes, Dedicationes Ecclesiarum, Clericalem tonsuram, Sedes in choro, aut quaelibet Ecclesiastica Officia, & vendens & emens Dignitatis & Officii sui ac Beneficii periculo subjaceat. Q●●d nisi resipuerit, Anathematis mucrone perfossus, ab Ecclesia Dei quam ●aesit, modis omnibus abscidatur. The like was ordained by a Council of 300 Bishops convened at Rome, Pope Calixius the Second being precedent, viz. Ordinari quemquam per pecuniam in Ecclesia Dei, vel promoveri auctoritate Sedis Apostolicae modis omnibus prohibemus. Si quis vero in Ecclesia Ordinationem vel Promotionem taliter adquisierit, acquisita careat prorsus dignitate. dict. Simeo. ubi supra. The same in terminis you have ordained at a Synod convened at Westminster An. 1126. in the Reign of King Henry the First, Honorius the Second being then Pope, viz. Sanctorum Patrum vestigiis inhaerentes, quenquam in Ecclesia per pecuniam ordinari auctoritate Apostolica prohibemus.— ibid. And at another Council convened at Westminster in the year 1175. under the Reign of King H. 2. it was ordained, that all Simoniacal Patrons should be deprived of their Right of Presentation for ever; Nulli liceat Ecclesiam nomine dotalitii ad aliquem transfer, vel pro Praesentatione alicujus personae pecuniam vel aliquod emolumentum, pacto interveniente, recipere. Quod si quis fecerit, & in jure vel convictus vel Confessus fuerit, ipsum tam Regia quam nostra freti auctoritate Patrocinio ejusdem Ecclesiae in perpetuum privari Statuimus. Can. 8. vid. Chron. Gervas'. de Temp. H. 2. It is Reported of the Emperor Henry, Son of Conradus, that in his youth he accepted of a Silver Pipe from a certain Clerk on this Promise and Agreement, That when he should be made Emperor he should bestow a bishopric on the said Clerk, the which he after did accordingly when he became Emperor; but not long after the Emperor being surprised with Sickness, and his Disease increasing he lay senseless and speechless for three days, and so rapt as it were out of the Body, that he lay as one dead, the Bishops appointed a Three days Fast for the Emperor's Recovery, which having obtained, he doth immediately by a Decree of the Council degrade the Bishop whom he had Simoniacally so made for a Silver Pipe; for it was confessed by all that heard hereof, That he was among the Devils during the space of all those Three days wherein he lay as dead, those Devils all that while darting fiery Flames through a Pipe into his mouth, whereby his whole body became but as one Firebrand, in comparison whereof our Material Fire here on Earth was but as congealed Ice to it, etc. As you like this, so you may have more out of the same Infallible Author, viz. Jo. Bromton. in Chronico suo. At a Council Assembled at Mantua by the Emperor Henry the Fourth in the year 1066. by the Third Canon of that Council it was ordained, That whosoever was admitted to a Church Office, willingly and wittingly by a Simoniack person, should be removed from his Order: And by the Sixth Canon of the same Council it was likewise ordained, That no Ecclesiastical Office or Benefice should be sold for Money, but freely given. Also by the Seventh Canon of the Council at Rome, consisting of 180 Bishops in the year 1180. under Pope Alexander the Third, it was ordained, That no Reward be taken for admitting men to Spiritual Offices, and that no money be taken for Blessing them that are Married, or for Administration of any other Sacrament: For at this time Marriage was counted a Sacrament of the Roman Church. He that Simoniacally enters on an Ecclesiastical Living, aimed at something worth money; he cannot be supposed to intent principally the ministry of Souls, who comes to that Office instructed only with a bag of Money. In Ireland there is a custom of receiving Oblations at the Baptism of Infants; but if the Priest shall refuse to baptise the Infant till he be secured of his Money, he is a direct Simoniack, for than he sells the Sacrament at a price certain. It is Recorded in History of Henricus Auceps, that when he fought against the Hungarians, he made a Vow to God, That if he would give him Victory, he would purge his country of Simony. Epiphanius.  
The precedent Evils of sacrilege and Simony are no further punished than as they are reduced into act and practice; but heresy, which in the method of the subsequent abridgement next follows, and as within the Ecclesiastical Cognizance, is more speculative, having its Seat more in the Head than in the Hand, and consequently of the more pernicious quality, in regard of its poisonous venom in these more noble parts, the Head and Heart; nor is it only the poison of the Soul, fatal in whom it is; but it is also the plague and leprosy of the Soul, dangerously infectious to others in whom but very lately it was not. This heresy may be defined to be a Published Opinion, repugnant to the Principles of our Christian Faith, obstinately maintained and persisted in by such as profess the Name of Christ; and so heretics are distinguished from Atheists and Infidels, properly so called, albeit in a sense they have somewhat of both the other in them: He seems to give it an adequate definition, that made one for it by the true interpretation of the Greek word, Haeresis Graece, Electio Latin, est sententia humano sensu Electa, Scripturae Sacrae contraria, palam docta, pertinaciter defensa: And he seems to give the heretic an apt comparison, who made one for him by the Mole, which is a Beast blind, with a black, but smooth outside, lurking in holes, working under ground, and spoiling the best landlord. In the black List or Catalogue of heretics, which you meet with in its proper Chapter of the ensuing abridgement, you will not find all those Heresies mentioned by Epiphanius, contr. Haeres. lib. 2. being purposely omitted for brevity's sake, because they were like abortive Births, and continued not long to disturb the Peace of the Church. Heresies of old, as of late days, have ever crept into the Church under a double pretence; the one, of zeal to the Glory of God; the other, of a detestation of Sin; the Devil would cease to be the Old Serpent, if after so many thousand years' experience he were now to learn how to wheedle and deceive the Nations. It is observable, that whenever and wheresoever the Light of the Gospel hath appeared in any more than ordinary lustre and purity, there immediately the Devil hath exerted the utmost of his power and policy to obscure that Light, by cau●ing Clouds of Error to gather in that Element where the Gospel so increased in purity and splendour; and whenever he desists from this practice, let him no more be styled The Prince of Darkness; whence, if Simon Magus were (as some say) the Father of heretics, you may guests who their Grandfather is; for according to the infernal genealogy, the Father of Lies must needs be the Grandfather of Heresies.  
In this ensuing abridgement therefore you have one Chapter of Blasphemy and heresy, 
Blasphemy.  as being also within the sphere of Ecclesiastical Cognizance; they are placed together, in regard of that affinity they have each to other; for many of them are Cosin-Germans, but one degree of a Lie removed, or rather are Brethren in Iniquity, 
Joh. 8. 44.  for they have both the same Father, Ye are of your Father the Devil, etc. he abode not in the Truth (says our Saviour of the Jews that believed not;) many of whom Blasphemously said of him, That he had a Devil, 
Joh. 10. 20.  and was mad: Others of them were foretold of by St. Peter, That they privily should bring in damnable Heresies, 
2 Pet. 2. 1. & 3. 16.  even denying the Lord that bought them, etc. wresting the Scriptures unto their own destruction. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Blasphemare, that is, convitiis incessere, to speak reproachfully and wickedly of God, to ascribe to the Creature what belongs only to God, vel ab eo removere quod illi convenit, says St. Ambrose, or to prefer a False god before the True God, Rev. 13. 1. This kind of Blasphemy refers chiefly to God the Father. There is Blasphemy likewise which refers to God the Son; such was the Blasphemy of the Pharisees, when they said of Christ, That he was a man gluttonous, 
Matth. 11. 19  and a Wine-bibber, etc. This they might probably say out of their ignorance of his Person, and therefore a much inferior Blasphemy to that against the Holy Ghost, which is ever against Conscience, and out of Envy and Malice. Bartolus is of opinion, That there is a Blasphemy also which refers to Men. Bart. in l. Item apud, § ait Praetor. ff. de Injur. But this is not that Blasphemy here intended, although that Opinion seems to be backed with good Authority, 1 Cor. 4. 13. & Tit. 3. 2. yet St. Austin, who understood this matter better than Bartol, was of another opinion, Est autem Blasphemia (says he) cum aliqua mala dicuntur de bo●is. Itaque jam vulgo Blasphemia non accipitur, nisi mala verba de Deo dicere. De hominibus namque dubitari potest: Deus vero sine controversia bonus est. D. August. in lib. de Morib. Manichaeor. cap. 11. It is but a weak illustration of the matter, to say Quoth in homines est Contumelia, hoc in Deum est Blasphemia. It may formally be defined to be an Injurious and Contumelious Speech against God: It is diametrically opposed to Divine Praise; and both these may be as well Internal, of the Heart, as External, of the Mouth, for in God's Omnisciency there is the language of the Heart, as well as of the Lip; and there may be Blasphemy in the one, as well as of the other. 
Levit. 24.  By the Levitical Law the Blasphemer was to be stoned to death. By the Civil Law he was likewise to die for it. Authen. ut non Luxurientur. in fin. But this Penalty in those days by reason of a defect of Religion and Justice is not inflicted, says Lucas de Penna, in L. omnes. C. de Delatorib. & Jul. Clarus. § Blasphemia, nu. 3. yet Blasphemers of the highest rank are at this day put to death in some places, in others they are condemned to the Oars, in some places they are banished, in others they have their Tongues cut off, or a hole bored through with an hot Iron, ut refert Clarus. By the Canon Law solemn Penance was anciently enjoined to Lay-Blasphemers. c. 2. de Maled. But this is not now in use. The Council of Lateran under Pope Leo the Tenth, Commanded that such Blasphemers should not be absolved in foro Conscientiae absque gravissima poenitentia. dict. Concil. Sess. 9 §. Ad abolendum. There are some who would have heresy to be a kind of Blasphemy; 
Heresy.  doubtless there are some Heresies that are very Blasphemous; but Heresy in sui natura is quite another thing; for as Blasphemy is de Deo male dicendo, so heresy is de Fide Catholica male eligendo; for the word Haeresis is derived 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Eligo, whence they are understood as heretics, who departing from the true Catholic Faith of Christ aliam sectam Eligunt. Some there are, who would have all heretics to be divided into the Major and the Minor; by the Major they will have to be understood all those qui nominatam haeresin praedicant, such of old were the Manichaeans, Arrians, Eutychians, Samaritans, Ophites, Donatists, Priscillianists, and the like: By the Minor, those qui haeresin innominatam defendunt. Drosaeus in Method. Jur. Thus the Philosophers of old had their Sects also among them, & unusquisque sibi aliquod genus disciplinae ac Sectae proprium elegit; there were various Factions among them, which by the Greeks were termed Heresies, but by the Latins, Sects. Among the Ancient this word heresy was not sensed in that odium as now with us, nor the word Secta among the Latins; St. Paul himself speaks of it in one place as in a sense almost indifferent, Act. 26. 5. Notwithstanding it is well known, that the Holy Scripture generally understands and speaks of it in pessimam partem; so in Tit. 3. 10. A man that is an heretic after the first and second Admonition reject: And in 1 Cor. 11. 19 There must be Heresies among you, that they which are approved, may be made manifest: And in Gal. 5. 20. Heresies are numbered among the works of the Flesh: And in 2 Pet. 2. 1. they are called Damnable Heresies. By the Civil Law an heretic can neither make a Testament, nor receive any benefit by a Testament. L. fin. C. de Haereticis. And if you will believe Tho. Aquinas (as in this you very safely may) all heretics by robbing the Holy Scriptures of the Truth to establish their pernicious Lies, are guilty of a kind of sacrilege; and by Fathering such Lies on God, tacitly of Blasphemy. Aquin. are 2.  
In the One and fortieth Chapter of the ensuing Treatise you have a brief Catalogue of the Councils according to our computation, 
Councils.  here you have them more succinctly according to the Roman Account: Sebastus, a Judge in Thessolonica, in the time of Constantinus Harmenopulus says, That some of the Ecclesiastical Canons were of the Holy Apostles, others of the Seven ecumenical Councils, others of particular Synods, and others of certain 
* If by certain Fathers of the Church are here meant any of the Popes, observe what B. Taylor says; It is no trifling Consideration (says he) that the Body of the Canon Law was made by the worst and most, Ambitious Popes: Alexander the Third, who made grecians Decree to become Law, was a Schismatical Pope, an Antipope, and unduly Elected: The rest were Gregory 9 Boniface 8. Clement. 5. John 22. persons Ambitious, and traitors to their Princes. B. Taylor's Casee of Conscience▪ lib. 3. cap. 4. nu. 4. fol. 647.  Fathers of the Church; to say nothing of the Papal Decretals ordered to be compiled by Pope Gregory the 9th. The First ecumenical Council was convened at Nice under Constantine the Great, against Arius, who held the Son of God to be a mere Creature: This Council consisted of 318 Bishops, by whom Arius was anathematised, and his heresy condemned. The Second was at Constantinople under Theodosius the Great, against the Pneumatomachists, who denied the Divinity of the Holy Ghost: This Council consisted of 150 Bishops, by whom these heretics together with their damnable heresy, was accursed. The Third was at Ephesus under Theodosius the Less, against Nestorius and Celestinus, who held that Christ was only Man: At this Council were 200 Bishops, by whom these heretics were likewise censured as the former. The Fourth was at Chalcedon under Marcianus, against Dioscorus and Eutyches, who held that the Two natures of the Word, viz. of God and Man, were after the Union reduced into one Nature; for which they were anathematised by 630 Bishops there Convened. The Fifth was at Constantinople under Justinianus the First, where 160 Bishops were present, who confirmed the Decrees of the Fourth Synod, and condemned Origen and all other heretics The Sixth was also at Constantinople under Constantinus Barbatus, where were Assembled 170 Bishops, who pronounced the Sentence of Anathema against all those qui unum in Christo voluntatem, & unam agendi vim tradehant. The Seventh was at Nice under Constantine and his Mother Irene, where 367 Bishops were assembled against the Adversaries of Images, whom they subjected to their Anathema. (2) Of Particular Synods, one was held in the Temple of the Apostles in Constantinople under the Patriarch Photius, which was called the First and Second: Another under Leo and Constantine in the most Famous Temple Sanctae Dei Sapientiae, or Sanctae Sophiae, which confirmed the Seventh Synod: Another at Ancyra, more ancient than the first Universal Synod: Another at Caesarea, more ancient than that at Ancyra: Another at Gangra, after the Nicene, against Eustachius, who despised Marriage, and taught things not consonant to Ecclesiastical Tradition: Another at Antioch a City in Syria, where in truth were two Synods, the one under Aurelianus against Paulus Samosatenus, who said that Christ was mere Man; the other under Constantius Son to Constantine the Great: Another at Laodicea, situate in Phrygia Pacatiana: Another at Sardica, that when Constantius embraced the foresaid Sect, his Brother Constans, Emperor of Old Rome, by his Letters threatening him with a War, if he would not desist from perverting the Church; his Answer was, That he sought no other Doctrine, than what was most agreeable to the Catholic Faith; whereupon by their and the Bishop of Rome's appointment 341 Bishops were convened in a Synod, which having established the power and authority of the Nicene Synod, did constitute divers Canons for the Church: Another at Carthage under Theodosius, where 217 Bishops were assembled, and with them the Pope's Vicegerents; this Carthage was part of Charchedon, and that a Province of Africa. (3) The Canons of the Fathers are taken (according to the Roman computation) out of the Epistles partly of Dionysius Alexandrinus, partly of Petrus Alexandrinus, partly of the Wonder-working Gregorius: partly also out of the Epistles of Bazil or Basilius the Great: partly out of the Epistle of Gregory or Gregorius Nyssenus to the B. of Melita: partly out of the Responses of Timotheus Alexandrinus: partly out of the Responses of the Constantinopolitan Synod to certain Monks, Nicholaus the Patriarch being precedent: partly out of the Epistles of Cyril or Cyrillus: and partly out of the Epistles of Nicephorus the Patriach. (4) The Canons of the Holy Apostles (a book falsely ascribed to the Apostles) are in number Eighty Five, according to a modest Computation, if you have any Faith to spare, at lest enough to believe the Church of Rome, in that as in other Points, infallible. But the Canons indeed of the Apostles, which are of Order and External Government, do oblige (as Dr. Taylor says) the Conscience, by being accepted in several Churches, not by their first Institution; and were fitted only to Times, and Places, and present Necessities: For (says he) the Apostolical Decree of Abstaining from Blood was observed by more Churches, than those of Syria and Cilicia, to which the Canon was directed; and the college of Widows or Deaconesses, derived itself into the manners of the Western Churches. And the Apostles in their first Preaching and Conversation in Jerusalem instituted a coenobitick life, and had all things in Common with Believers: (indeed no man was obliged to it.) Of the same nature were their Canons, Counsels, and Advices. The Canon concerning Widows, Let not a Widow be chosen under 60 years; and yet Justinian suffered one of 40 years old to be chosen. Novel. 123. c. 12, 13. And the Canon of the Apostles forbidding to eat things strangled, 
Anonym. The Hist. of the Church of Great Britain.  is not where observed in the Western Churches of Christendom. In the beginning of the Fourth Century, above 1300 years since, we find our Bishops, British Bishops, at the Councils of Arles, Nice, Sardis, and Ariminum; a clear Evidence of the flourishing state of Christianity so long since in this Island. At Arles in France, convened touching the Donatists, appeared for the Britain's, Eborius Bishop of York, Restitutus Bishop of London, Adelfius Bishop of the City called the Colony of London, which some suppose to be Colchester, others Maldon in Essex; Sacerdos, a Priest both by Name and Office; Arminius, a Deacon, An. 313. At the Synod of Nice in Bythinia, An. 325. to suppress Arrianism, were British Bishops present, as Athanasius and Hilary Bishop of Poitiers affirm. At the Council of Sardis in Thracia convened by Constanitus and Constans, Sons to Constantine the Great, the British Bishops were likewise present, when the Arrians were condemned, and Athanasius acquitted. And at the Council of Ariminum in Italy the British Bishops were also present; who (according to Athanasius) were about An. 360. summoned to divers foreign Councils in remote parts. As also here at home in and after the Seventh Century were divers particular Councils and Synods, the first whereof (according to Stapleton out of Bede) called The first of the English Nation, 
Lib. 4. c. 5.  was convened at Hertford by Theodorus Archbishop of Canterbury, who succeeded Deusdedit in that See; in this Council the Observation of Easter was settled according to the Romish Rite; yet whosoever will have this Council to be (as aforesaid) The first of the English Nation, must understand it the First, whose Canons are completely extant. Bede lib. 4. c. 5. About the year 740 Ethelbald King of Mercia, with Cuthbert Archbishop of Canterbury, called a Council at cliff in Kent; the acts of which Synod were 31 Canons, among which is was (inter alia) ordained, That Prayers should publicly be made for Kings and Princes. But some few years before this, the said Theodorus held a Synod or Council of Bishops at Hatfield, by authority whereof he divided the Province of Mercia (which Sexwolphus then governed alone) into five bishoprics, viz. to Chester, Worcester, Lichfield, Cedema in Lindsey, and to Dorchester. In the year 692 a great Council was held at Becanceld by withered King of Kent, and Bertuald Archbishop of Britain, wherein many things were concluded in favour of the Church. About the same time a Council was held at Berghamsteed by the said withered King of Kent; at which Council Bishop Wilfrid was restored to York, whence he departed for Rome, upon the endeavours which Theodorus Archbishop of Canterbury had used, to have that diocese of York divided. In the year 801 Ethelard the Archbishop called a Synod at Clivesho in Kent, where by power from the Pope, he riveted (that's the word) the archbishopric into the City of Canterbury. There was likewise at Celichyth an eminent Council under Wolphred, who succeeded Ethelard, Archbishop of Canterbury. But nigh one hundred years before this, viz. about the year 709, a Synod was assembled at Alncester in Worcestershire, to promote the building of Evesham-Abbey. And not long after another Synod was called at London, to introduce the Doctrine of Image-Worship into England, now first beginning to appear in the public practice thereof. Also, above one hundred years before that, viz. about the year 601. Augustine by the aid of Ethelbert King of Kent, called a Council of Saxon and British Bishops to meet in the Confines of the Mercians and westsaxons, in the borders of Worcester and Herefordshire, under an Oak; thereby tacitly reproving the Idolatry of the Pagan Britain's, who acted their Superstitions under an Oak; as the Learned Sr. H. Spelman observes. 
Spelm. Concil.  In the Tenth Century King Edward the Elder, Son of King Alfred, called a Synod at Intingford, where he confirmed the same Ecclesiastical Constitutions, which King Alured had made before. Many Councils were convened during the Reign of King Athelstan, as at Exiter, Feversham, Thunderfield, London, and at Great Lea, which last is of most account in regard of the Laws therein made, specially that concerning the payment of Tithes; the which you may peruse in the Learned Sr. H. Spelm. Concil. p. 405. During the Reign of King Edgar, Hoel Dha held a National Council for all Wales at Tyquin, which was wholly in favour of the Clergy; this Council was held when Dunst in was Archbishop of Canterbury, in whose time there were Two other Councils convened, the one at Cartlage in Cambridgshire, the other at Caln in Wiltshire. After this William the Conqueror convened a Council of his Bishops at Winchester, wherein himself was personally present, with two Cardinals sent from Rome; in this Council Stigand Archbishop of Canterbury was deposed, and L●●frank a Lombard substituted in his room. During the Reign of King Henry the First, Anselm Archbishop of Canterbury summoned a Council at Westminster, which Excommunicated all Married Priests, half the Clergy at that time being Married, or the Sons of Married Priests. During the Reign of King Stephen, Albericus Bishop of Hostia, sent by Pope Innocent into England, convened a Synod at Westminster, wherein it was concluded, That no Priest, etc. should have a Wife or a Woman in his house, on pain of being sent to Hell. Also that their Transubstantiated God should dwell but Eight days in the Box, for fear of being Worm-eaten or moulded. Under the Reign of King Henry the Second (who disclaimed the Pope's authority, refused to pay peter-pences, and interdicted all Appeals to Rome) a Synod was called at Westminster, wherein was a great Contest between the two Archbishops of Canterbury and York for Precedency; York appeals to Rome, the Pope interposes, and to end old Divisions makes a new distinction, entituling York Primate of England, and Canterbury Primate of all England. Under the Reign of King Henry the Third a Council was held at Oxford under Stephen Langton Archbishop of Canterbury, wherein many Constitutions were made, as against Excess of demands for Procurations in Visitations, against Pluralities, nonresidence, and other abuses of the Clergy. In the Ninth year of King Edward the First, John Peckham Archbishop of Canterbury, held a Council at Lambeth with his Suffragans, some account whereof Walsingham gives us in these words, viz. Frater Johannes Peckham, Cantuariensis Archiepiscopus, ne nihil fecisse videretur, convocat Concilium apud Lambeth, in quo non Evangelii Regni Dei praedicationem imposuit, sed Constitutiones Othonis & Ottobonis quondam Legatorum in Anglia innovans, jussit eas ab omnibus servari, etc. Walsing. in Ed. 1. He then made Sixteen Ecclesiastical Laws, which are inserted among the Provincial Constitutions. After this he summoned another Council of his Clergy at Reading, wherein he propounded the drawing of all Causes concerning Advowsons' to the Ecclesiastical Courts, and to cut off all Prohibitions from the Temporal Courts in Personal Causes; but upon the King's express Command to desist from it, this Council was dissolved. Parker de Antiq. Eccles. Anglic. fo. 205. An 1290. During the Reign of King Henry the Fourth, Thomas Arundel Archbishop of Canterbury convened a Synod at St. Paul's Church Lond. wherein the King joined with them in punishing all Opposers of the Religion received.— Trussel. de vita H. 4. Under King Henry the Fifth an Universal Synod of all the Bishops and Clergy was called at London, where it was determined, That the day of St. George, and also of St. Dunstan, should be a double Feast in holy Church. In the same King's Reign was a Convocation held at London, convened by Henry Chichley Archbishop of Canterbury, wherein were severe Constitutions made against the Lollards. In the Reign of King Henry the Seventh a Synod was held at London by John Morton Archbishop of Canterbury, to redress the Excess of the London Clergy in Apparel and frequenting of Taverns. We had almost omitted the Synod in England An. 1391. under the Reign of King Richard the Second, Simon Sudbury then Archbishop of Canterbury; in which Synod it was ordained, That whosoever Appealed to Rome (besides Excommunication) should lose all his Goods, and be Imprisoned during his Life. vid. Hist. of the Church of Great Britain,— p. 117. A Modern and Ingenious, yet unfortunate, Author well observes a Fourfold difference or distinction of Synods or Convocations in this Realm, in reference to the several manners of their Meeting, and degrees of their Power. The First, he states in point of Time before the Conquest. The Second, since the Conquest, and before the Statute of Praemunire. The Third, after that Statute, but before another made in the Reign of King H. 8. The Fourth, after the 25th of the said King. (1) Before the Conquest the Pope's power prevailed not over the Kings of England, who were then ever present Personally or Virtually at all Councils, wherein matters both of Church and State were debated and concluded, 
† Spelm. An. 605. pag. 118.  Communi consensu tam Cleri quam Populi, Episcoporum, Procerum, Comitum, nec non omnium Sapientum, Seniorum populorumque totius Regni. (2) After the Conquest, but before the Statute of Praemunire, the Archbishops used upon all emergent Cases, toties quoties, at their own discretions to assemble the Clergy of their respective Provinces, where they pleased, continuing and dissolving them at their pleasure; which they then did without any leave from the King; whose Canons and Constitutions (without any further Ratifification) were in that Age obligatory to all subjected to their Jurisdiction. Such (it seems) were all the Synods from Lanfranck to Thomas Arundel, Archbishop of Canterbury, in which Arundels time the Statute of Praemunire was Enacted. (3) After which Statute (which much restrained the Papal power, and subjected it to the Laws of the Land) the Archbishops called no more Convocations by their sole and absolute Command, but at the pleasure of the King, by whose Writ and Precept only they were now and henceforth Summoned. Of this Third sort of Convocations, were all those kept by and from Thomas Arundel unto Thomas Cranmer, or from the 16th of R. 2. unto the 25th of King H. 8. These Convocations also did make Canons (as in Lindwoods' Constitutions) which were Obligatory, although confirmed by no other Authority than what was merely Synodical. (4) The last sort of Convocations, since the said Statute, called the 25th of King H. 8. That none of the Clergy should presume to attempt, allege, claim, or put in ure, any Constitutions, or Ordinances Provincial, or Synodals, or any ●●her Canons, Constitutions, or Ordinances Provincial (by whatsoever Name or Names they may be called) in their Convocation in time coming, (which always shall be assembled by the King's Writ) unless the same Clergy may have the Kings most Royal assent and licence to make, promise and execute such Canons, Constitutions and Ordinances Provincial, or Synodical, upon pain of every one of the said Clergy doing the contrary to this Act, and thereof convicted, to suffer Imprisonment, and making Fine at the Kings will. Since this year, from Archbishop Cranmer to this day, all Convocations are to have the Kings leave to debate on matters of Religion; and their Canons (besides his Royal assent) an Act of Parliament for their Confirmation. And as to the General Councils, 
Dr. Tayl. Cas. of Conscience, lib. 3. cap. 4. fol. 637.  there are not any of them of use in England, except the first Four General Councils, which are established into a Law by King and Parliament.  
The Learned Bishop Prideaux in his Synopsis of Councils gives us the definition of Synodographie, and says, It is such a Methodical Synopsis of Councils and other Ecclesiastical Meetings, as whereby there may be a clear discovery to him that doubts how any Case may be enquired after, and what may be determined concerning the same. And then immediately after gives us the definition of a Council, which he calls a Free public Ecclesiastical Meeting, especially of Bishops, as also of other Doctors lawfully deputed by divers Churches, for the examining of Ecclesiastical Causes, according to the Scriptures, and those according to the power given by Common Suffrages, without favour of parties to be determined, in matters of Faith by Canons, in cases of Practice by precedents, in matters of Discipline by Decrees and Constitutions. Of these Councils he observes some to have been Judaical, others Apostolical, others ecumenical, some Controverted, others Rejected, and some National, to all which he likewise adds Conferences. (1) Under the Title of Judaical Councils he comprehends the more solemn Meetings about extraordinary affairs for the Confirming, Removing, or Reforming any thing, as the matter required. Such he observes to have been at Sichem under Josuah and Eleazar, Josh. 24. At Jerusalem, the first under David, Gad and Nathan being his Assistants, 1 Chro. 13. At Carmelita under Ahab and Elias, 1 King. 18. At Jerusalem, the Second under Hezekiah, 2. Chro. 29. At Jerusalem, the Third under Josiah and Hilkiah, 2 Kin. 33. 2 Chro. 34. At Jerusalem, the Fourth under Zorobabel and Ezra and the Chief of the Jews, that returned from the Captivity of Babylon. And lastly, that which is called the Synod of the Wise under John Hircanus. Genebrand. Chron. l. 2 p. 197. (2) The Apostolical Councils he observes to have been, for the substituting of Mathias in the place of Judas, Act. 1. For the Election of Seven Deacons, Act. 6. For not pressing the Ceremonial Law, Act. 15. 11. For the toleration of some Legal Ceremonies for a time, to gain the Weak by such condescension, Matth. 21. 18. For composing the Apostles Creed. For obtruding to the Church 85 Canons under the notion of the Apostles authority, concerning which there are many Controversies. Lastly, for the Meeting at Antioch, where among Nine Canons, the Eighth commanded Images of Christ to be substituted in the room of Heathenish Idols; the other pious Canons being destitute of the Synods authority. vid. Bin. Tom. 1. p. 19 & Longum. p. 147. (3) Of ecumenical or General Councils, some were Greek or Eastern, others were Latin or Western. The more Famous of the Ecumenical Greek Councils were, the Nicene, the first of Constantinople, the first of Ephesus, the first of Chalcedon. Of Constantinople, the second of Constantinople, the third. The Nicene the second. The more Famous of the Ecumenical Latin Councils were at Ariminum: the Lateran: at Lions: at Vienna: the Florentine: the Lateran the fifth; and lastly at Trent. (4) Of Controverted Councils (if that distinction be admissable, according to the Classis thereof digested by Bellarmine) the Computation is at Constantinople the fourth: at Sardis: at Smyrna: at Quinisext: at Francfort: at Constance; and at Basil. (5) Of Rejected Councils (whereby are intended such as either determine Heretical Opinions, or raise Schisms) the Computation is at Antioch: at Milan: at Seleucia: at Ephesus the second: at Constantinople: at Pisa the first; and at Pisa the second. (6) Of National Synods, which comprehend the Provincials of every Metropolitan or Diocesan Bishop, the distribution is into Italian, Spanish, French, Germane, Eastern, African, Britain. (7) To these may be added Ecclesiastical Conferences, which were only certain Meetings of some Divines, wherein nothing could be Canonically determined, and therefore needless to be here particularly inserted. vid. B. Prideaux. Synops. of Counc. vers. fin.  
The grand Censure of the Church, whereby it punisheth obstinate Offenders, is by way of Excommunication, which though the Canonists call Traditio Diabolo, or giving the Devil as it were Livery and seizing of the Excommunicate person, yet the Romanists have a Tradition, that St. Bernard Excommunicated the Devil himself, Sanctus Bernardus, plenus virtutibus, quadam die praesentibus Episcopis, clero, & populo, Excommunicavit quendam Diabolum Incubum, qui quandam mulierem in Britannia per septeunium vexabat; & sic Liberata est ab eo.— Chron. Jo. Bromton. de Temp. H. 1. A miraculous Excommunication, and a Sovereign Remedy against Diabolical incubations. The Excommunication which St. Oswald pronounced against one, who would not be persuaded to be reconciled to his Adversary, had nothing so good though a more strange effect, for that Excommunicated him out of his Wits, and had it not been for Wolstan, who as miraculously cured him, you might have found him, if not in Purgatory, then in Bedlam at this day; Illi cujus es (says Sanctus Oswaldus) Te commendo, & carnem Sathanae tuam trado. Statim ille dentibus stridere, spumas jacere, caput rotare incipit. Qui tamen à Wolstano sanatus, cum Pacem adhuc recusaret, iterum & tertio est arreptus simili modo, quousque ex corde injuriam remitteret & offensam. If you have not faith enough to believe this on the Credit of Abbot Brompton, who Chronicled from the year 588, in which St. Austin came into England, to the death of King Richard the First, which was in the year 1198. if you have not (I say) faith enough for the premises, you are not like to be supplied with any on this side Rome, unless you have it from Henry de Knighton Canon of Leyster, who wrote the Chronicle De Eventibus Angliae, from King Edgar's time to the death of King Richard the Second, for he in his Second Book de Temp. W. 2. doth put it under his infallible pen for an undeniable Truth. And indeed is much more probable, than what the said Abbot reports touching St. Augustine's raising to life the Priest at Cumpton in Oxfordshire 150 years after his death, to absolve a penitent Excommunicate, that at the same time risen also out of his grave, and walked out of the Church at St. Augustine's command, That no Excommunicate person should be present whilst he was at Mass, having in his life-time been Excommunicated by the said Priest for refusing to pay his Tithes. vid. Cron. dict. Bromton. de Regn. Cantiae. Excommunication is of such a large extent, that this World is too narrow to contain it, therefore it extends itself to the next World also, and that not only in reference to the Soul, but also to the Body; insomuch that the interred Bodies of persons dying under Excommunication, have often been inhumanely exhumated and taken out of their Parochial graves, to associate with the rotten carcases of bruit Beasts, a precedent whereof you have in King Edward the Thirds time, when the Pope by his Bull to the Bishop of Lincoln commanded, That the Bodies of all such Excommunicates as in their Life-time had adhered to the Lady Wake, in the Contest between her and the Bishop of Ely touching a manor, should be taken out of their Graves, and cast out of the churchyard. This is much worse than to be denied the honour of a Christian burial, which by the Council at Rome, An. 1180. was the punishment of such lay-people as transferred the right of Tithes to other laics, without delivering them to the Church; yet by the Sixth Canon of that Council it is ordained, That no man shall be Excommunicated or suspended from his Office, until he be legally and duly summoned to appear and answer for himself, except in such cases as deserve summary Excommunication. It was a strange Excommunication, as to the new and insolent Form thereof, wherewith Pope Theodorus Excommunicated Pyrrhus Patriarch of Constantinople, who having been infected with the heresy of the Monothelites, and thereupon Excommunicated, and upon his Recantation absolved, relapsed into the same Error, whereupon the said Theodorus Excommunicated him the second time, but in such a way and manner, as never had a former precedent or second Practice: For he infused some drops of consecrated Cup into Ink, and therewith writ a Sentence of Anathema against Pyrrhus. Hist. Mag. Cent. 7. cap. 39 Whether the Dead may be Excommunicated? was the first Question moved in the Fifth General Council at Constantinople, An. 551. under the Emperor Justinian: To which Eutychius answered, That as Josiah opened the sepulchers of the Dead, 
2 Kin. 23. 16.  and burned their Bones: So the Memorials of such might be accursed after their death, who had injured the Church in their life; for which pertinent Answer the said Emperor made him Bishop of Constantinople; so that he succeeded Menas, who about the same time had departed this life suddenly, sitting the Council. That worthy Prelate, who affirmed That it was certainly unlawful to Excommunicate any man for not paying the Fees of Courts, 
Dr. tailor in his Cases of Conscience. lib. 3. cap. 4. fol. 617. nu. 4.  is scarce so generally credited in his Law, as he may deserve to be in his Doctrines, especially when his Reason for that Assertion, viz. That a Contumacy there (speaking of Courts Ecclesiastical) is an Offence against the Civil Power, is duly weighed and considered; and more especially, when such Fees are not paid, notwithstanding the Orders and Decrees of such Courts for the payment thereof: Contempts of which kind might pass wholly unpunished, if Ecclesiastical Censures should not take place in such cases. Many are the Prejudices which ensue upon Excommunication, some whereof (in case of obstinate persistency) reach us as Men as well as Christians, and seem, as it were, to unman us, as well as unchristian us; extending (per brachium Seculare) as well to our Civil Liberty, as (per censuram Ecclesiasticam) to our Christian; having a dreadful influence both on Body and Soul, and that in both worlds. Rebussus enumerates no less than above Threescore of these penalties, for so he calls them, Poenae contra Excommunicatos. Rebuff. de Excom. non vitand. Such persons as are extra Communionem Ecclesiae, or Excommunicates with us, were apud Hebraeos anciently called Aposynagogi, as cast out of the Synagogue, and for their Contumacy Extorres, to be shunned of all men until they repent. Old. Such as are anathematised and under the greater Excommunication, are as it were expelled out of all Humane Society and banished from Mankind (understand it of those within the Church;) such an Anathema may be somewhat compared to that Punishment, which the Romans of old called Interdictio ignis & aquae, borrowed from the Grecians, which their great Legislator Draco enacted as a Law to the Athenians, and which Punishment in truth was second to none, save that which is Capital.  
Towards the close of this Ecclesiastical abridgement you have some mention made of the Statute of Circumspect Agatis: In the Thirteenth year of the Reign of King Edward the First, An. 1285. the Bounds and Limits of both Jurisdictions Spiritual and Temporal were fixed by Parliament, by a Statute under that Title, the English whereof translated from the Latin out of the Records runs thus, viz.  
The King to his Judges sendeth Greeting. Use yourselves circumspectly in all matters concerning the 
* Supposed to be William Middleton.  Bishop 
† Norwich. An Example in one, to stand as a precedent for all.  of Norwich, and his Clergy, not punishing them, if they hold Plea in Court Christian, of such things as be merely Spiritual, viz. of penance enjoined for deadly Sin, as Fornication, Adultery, and such like; for the which many times corporal penance or pecuniary is enjoined, specially if a Freeman be convict of such things.  
Also if Prelates do punish for leaving churchyards unclosed, or for that the Church is uncovered, or not conveniently decked; in which cases none other penance can be enjoined, but pecuniary.  
Item, If a Parson demand of his Parishioners Oblations and Tithes due and accustomed; or if any person plead against another for Tithes, more or less, so that the Fourth part of the value of the Benefice be not demanded.  
Item, If a Parson demand Mortuaries in places, where a Mortuary hath used to have been given.  
Item, If a Prelate of a Church, or if a Patron demand a ` Pension due to themselves, all such demands are to be made in a Spiritual Court. And for laying violent hands on a Priest, and in case of Defamation, it hath been granted already, that it shall be tried in a Spiritual Court, when money is not demanded, but a thing done for punishment of Sin, and likewise for breaking an Oath. In all cases afore rehearsed, the Spiritual Judge shall have power to take knowledge, notwithstanding the King's Prohibition. vid. Lindw. Constit. lib. 2. Tit. De Foro-Competenti. Vid. Full. Chur. Hist. lib. 3. p. 79.  
Now whereas some doubt hath heretofore been, whether this were indeed an Act of Parliament, or any thing more than a Constitution made by the Prelates themselves, or only a mere Writ issued out from the King to his Judges, Sr. Ed. Coke. Instit. par. 2. pag. 487. resolves it in express terms thus, viz. Though some have said, that this was no Statute, but made by the Prelates themselves; yet that this is an Act of Parliament, it is proved, not only by our Books, but also by an Act of Parliament.  
By this Statute of Circumspect Agatis, the Ecclesiastical Court might proceed to punish the Offender, who offered violence to a Priest; the which de jure it might do by proceeding Ex Officio & pro salute animae, damages on an Action of Battery in the case reserved to the Common Law.  
To conclude; The Protestation which Bellamera the Canonist, in the Proem to his Lecture on the Clementine Constitutions makes, shall (as to this Repertorium Canonicum, Jurisve Anglico-Ecclesiastici Compendium) be mine, Id submittens correctioni & determinationi tam Canonum Ecclesiasticorum, quam Statutorum, Jurumque Publice Forensium & Secularium, & cujuslibet melius sentientis, Protestans, quod si in praesenti Opusculo de lapsu chalami, aut inadvertentia, vel forte ex ignorantia aliqua jam Scripsero, id praeter intentionem scribere me contigerit: Si etiam aliqua Scripsero, quae errorem saperent, aut male sonarent, illa ex nunc Revoco, & volo haberi pro non Scriptis; Determinationibusque Ecclesiae Anglicanae, & dicti Juris Forensis Oraculis semper, & in omnibus volo stare. Et hanc Protestationem volo pro Repetita haberi in quolibet Dictorum meorum, & etiam condicendorum, ut si reprobantur dicta, Actor non propter hoc reprobetur.   

The several CHAPTERS of the Ensuing abridgement.  

CHAP. PAGE.  
1. OF His majesty's Supremacy, 1  
2. Of Archbishops, 12  
3. Of Bishops and Ordinaries, 22  
4. Of Guardians of the Spiritualties. 39  
5. Of Congé d'Eslire, Election, and Confirmation, 43  
6. Of Consecration, 46  
7. Of Deans and Chapters, 51  
8. Of archdeacon's. 60  
9 Of Procurations, Synodals, and Pentecostals, 67  
10. Of Diocesan Chancellors, Commissaries, Officials; as also of Consistories. 80  
11. Of Courts Ecclesiastical and their Jurisdiction, 94  
12. Of Churches, chapels, and churchyards, 134  
13. Of Churchwardens, Questmen, and Sidemen, 159  
14. Of Consolidation and union of Churches, 169  
15. Of Dilapidations, 173  
16. Of Patrons, and De jure Patronatus, 178  
17. Of Parsons and Parsonages, 185  
18. Of Vicars, Vicarages, and Benefices, 196  
19 Of Advowsons'. 220  
20. Of Appropriations. 220  
21. Of Commendams, 230  
22. Of Lapse, 242  
23. Of Collation, Presentation, and Nomination, 251  
24. Of Examination, Admission, Institution, and Induction, 269  
25. Of Avoidance and Next Avoidance; also of session, 282  
26. Of Pluralities, 291  
27. Of Deprivation, 305  
28. Of Incumbents; also of Residence and nonresidence, 316  
29. Of Abbots and abbeys; also of chauntreys'; and of the Court of Augmentations, 326  
30. Of Annates or First-Fruits; also of Aumone, or Frank-Almoin, 335  
31. Of Altarage, 339  
32. Of Tithes, with the Incidents thereof, 344  
33. Of Banns, 465  
34. Of Adultery, 469  
35. Of Bastards and Bastardy, 477  
36. Of Divorce; also of Alimony, 492  
37. Of Defamation, 514  
38. Of sacrilege. 528  
39 Of Simony, 535  
40. Of Blasphemy, heresy, and heretics, 559  
41. Of Councils, Synods, and Convocations, 584  
42. Of Excommunication, 623  
43. Of the Statutes, Articuli Cleri, and circumspect agatis, 639  
44. Of several Writs at Common Law, pertinent to this Subject, 643    

AN ABRIDGEMENT OF Ecclesiastical LAWS.  

CHAP. I.  
Of the King's Supremacy.  

1. A Description thereof, or what it is.  
2. The Establishment thereof by Statute Laws.  
3. The Oath of the King's Supremacy; when first Enacted, the Cause thereof.  
4. The King in his own Dominions, Dei Vicarius.  
5. The King supreme governor (under God) of the Church in England, etc.  
6. Impugners of the King's Supremacy how censured by the Canon.  
7. In matters Ecclesiastical the King hath here the same power de jure, which the Pope formerly exercised by Usurpation.  
8. The Kings of this Realm anciently made their own Canons and Ecclesiastical Constitutions without the Pope's Authority.  
9 The King is Lex viva, in some cases may dispense with some Canons:  
10. Prouisoes of some Statutes in right of the King's Supremacy.  
11. No Canons or Ecclesiastical Constitutions to be made, or to be of force to oblige the Subject without the Royal Assent.  
12. The Regal Supremacy asserted by the Ecclesiastical Injunctions of King Ed. 6.  
13. The same further asserted by other Eccles. Powers and Authorities.  
14. The Regal Supremacy asserted in the Reign of Queen Elizabeth.   
(1.) THis Ecclesiastical abridgement gins with the Regal Supremacy, a Point which cannot be touched with too much tenderness; such of the Church of Rome as question the validity thereof, may be presumed not to have consulted that Learned Canonist of their own, Jo. Quintinus Hoedeus, where he says, That Nemini dubium, 
J●. Qaint Hoed. Repet. in c. Novit De Judic. nu. 145.  quin in Primitiva Ecclesia de rebus & Personis Ecclesiasticis Principes jus dixerint. The Emperors were all Secular Princes, who by those Laws which they established touching Persons and Things Ecclesiastical, proclaimed to all the world their Supremacy therein: The Thirteen first Titles of the First Book of the Emperor Justinian's Code, being the Constitutions of divers Emperors, do treat and judge of Things and Persons merely Ecclesiastical; yea, the Emperor's Areadius and Honorius ejected a Bishop as well out of his Title of Ecclesiastical Dignity as out of his Episcopal See, and commanded him to be Banished for disturbing the public Peace. l. quicunque, C. de Episc. & Cleric. By this word [Supremacy] is here understood, that undoubted Right and ancient Jurisdiction over the State Ecclesiastical within these his majesty's Realms and Dominions (with the abolishing of all foreign and Usurped Power repugnant to the same) which the Laws and Statutes have restored to the Crown of this Kingdom, and now invested in the King, as the Highest Power under God within these his majesty's Realms and Dominions, unto whom all persons within the same, in all Causes and Matters, as well Ecclesiastical as Temporal, do own their Loyalty and Obedience, before and above all other Powers and Potentates on Earth whatever.  
(2.) By the Injunctions of King Ed. 6. to the Clergy, all persons Ecclesiastical having cure of Souls, 
Vid. B. Spar. Collect. Edit. 1675.  were Four times a year to preach in vindication of the King's Supremacy, and in opposition to the usurped power of the Bishop of Rome in this Kingdom. There were divers Laws made in the time of King H. 8. for the extinguishment of all foreign Power, and for the restoring unto the Crown of this Realm the Ancient Rights and Jurisdictions of the same; which is the substance of the Preamble of the Statute of 1 Eliz. cap. 1. The express Letter and meaning whereof is, as Sir Edward Coke observes 
a Co. Inst. p. 4. c. 74.  to restore and unite to the Crown the Ancient Jurisdiction Spiritual or Ecclesiastical, where (as he says) the First clause of the Body of the Act, being to let in the Restitution of the Ancient Right and Jurisdiction Ecclesiastical within the Realm, doth abolish all foreign Jurisdiction out of the Realm. And then followeth the principal Clause of Restitution and Uniting of the ancient Jurisdiction Ecclesiastical, being the main purpose of the Act, in these words, viz. Be it Enacted, That such Jurisdiction Spiritual or Ecclesiastical, as by any Spiritual Power or Authority hath heretofore been, or lawfully may be exercised or used for the visitation of the Ecclesiastical State and Persons, and for-Reformation, Order, and Correction of the same, and of all manner of Errors, Heresies, Schisms, Abuses, Offences, Contempts and Enormities, shall for ever by Authority of this Parliament, be united and annexed to the Imperial Crown of this Realm. This Act by a former Clause thereof doth Repeal the Statute of 1 and 2 Ph. & Ma. c. 8. whereby the Acts of 26 H. 8. c. 1. and 35 H. 8. c. 3. were repealed; so that the Act of Repeal being repealed, the said Acts of H. 8. were implicitly revived, whereby it is declared and enacted, That the King, his Heirs and Successors, should be taken and accepted the only supreme Head in Earth of the Church of England, and should have and enjoy, annexed to the Imperial Crown of this Realm, as well the Title and style thereof, as all Honours, Dignities, Prebeminencies, Jurisdictions, etc. to the said dignity of supreme Head belonging, etc. By which Style, Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever 
b Co. ibid. ; And by which Statute the Crown was but remitted and restored to its Ancient Jurisdiction, which had been formerly usurped by the Bishop of Rome 
c Davis 1. Proxies 4. . And this is that Supremacy which is here meant and intended.  
(3.) The said Statute of 1 Eliz. c. 1. doth not only repeal the said Stat. of 1, and 2 P. & M. c. 8. but it is also a reviver of divers Acts asserting several branches of the King's Supremacy, and re-establishing the same; it doth likewise not only abolish all foreign Authority, but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm, 
By virtue hereof were the Letters Patent of the High Commission-Court.  with power to assign Commissioners for the exercise of Ecclesiastical Jurisdiction: And then further Enacts to this effect, viz. That all Ecclesiastical persons of what degree soever, and all and every Temporal Judge, Justice, Mayor, or other Lay or Temporal Officer or Minister, and every other person having Fees or wages from the Crown, within this Realm or the Dominions thereof, shall upon his Corporal Oath testify and declare in his Conscience, That the King's Majesty is the only supreme governor of this Realm, and of all other his majesty's Dominions and Countries, as well in all Spiritual or Ecclesiastical things or causes, as Temporal; And that no foreign Prince. Person, Prelate, State or Potentate hath or aught to have any Jurisdiction, power, superiority, pre-eminence or authority, Ecclesiastical or Spiritual, within this Realm; And therefore doth utterly renounce and forsake all foreign Jurisdictions, powers, superiorities and authorities; and doth promise that from henceforth be shall bear Faith and true Allegiance to the King's Majesty, his Heirs and lawful Successors, and to his power shall assist and defend all Jurisdictions, privileges, preeminencies and authorities granted or belonging to the King's Majesty, his Heirs and Successors, or united or annexed to the Imperial Crown of this Realm. The practices of the Romanists in the 4th year of Queen Elizabeth, and the danger thereby threatening both the Queen and State, occasioned her to call a Parliament 12. Jan. An. 156 2/3, which passed an Act For assurance of the Queen's Royal power over all Estates and Subjects within her Dominions. By which Statute was enacted The Oath of Supremacy; as also what persons were obliged to take it, and who should have power to administer the same: And this was both the original and the cause of that Oath. By the said Statute of 1 El. c. 1. appears also what the penalty is for refusing to take the said Oath; as also the penalty of maintaining a foreign Authority, as likewise what other persons than the forementioned shall be obliged to take the said Oath; which was afterwards again further ratified and established by the Statute of 5 Eliz. c. 1.  
(4.) The King within his own Territories and Dominions, is (according to Bracton) Dei Vicarius tam in Spiritualibus quam Temporalibus 
d Bract. de Leg. & Consue●ud. Angl.  And in the Ecclesiastical Laws of Edward the Confessor the King is styled, Vicarius summi Regis, & Reges regunt Ecclesiam Dei, in immediate subordination to God 
e Leg. Eccl. Ed. C●nf. a. 15. Spelm. Conc. : Yea the Pope himself, Eleutherius, An. 169. styled King Lueius, Dei Vicarius in Regno suo 
f Spelm. ib.   
(5.) The Supremacy which heretofore the Pope did usurp in this Kingdom, was in the Crown originally, to which it is now legally reverted. The King's Supremacy in and over all Persons and Causes Ecclesiastical, within his own Dominions, is essentially inherent in him; so that all such Authority as the Pope here once usurped, claiming as supreme Head, did originally and legally belong to the Crown, and is now reunited to it by several Statutes as aforesaid 
g 26 H. 8. 1. 1 El. 1. 5. El. 1. vid. C●. Instit. p. 4. c. 74. . On this Supremacy of the King, as supreme Head, Sr. Edward Coke grounds the power of granting a Commission of Review after a Definitive Sentence in the Delegates 
h Ce. ubi sup. de Com. add Revid. ; for one Reason that he gives, is, because after a Definitive Sentence the Pope, as supreme Head by the Canon Law, used to grant a Commission Ad Revidendum: And such Authority as the Pope had, claiming as supreme Head, doth of right belong to the Crown; Quia sicut Fontes communicant aquas fluminibus cumulative, non privitive: sic Rex subditis suis Jurisdictionem communicat in Causis Ecclesiasticis (vigore Statuti in hujusmodi Casu editi) cumulative, non privitive 
i Ce. ibid. .  
By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained, 
Edit. An. 1603.  That whoever shall affirm, that the King's Majesty hath not the same Authority in Causes Ecclesiastical, that the godly Kings had among the Jews and Christian Emperors in the Primitive Church, or impeach in any part his Regal Supremacy in the said Cases restored to the Crown, and by the Laws of this Realm therein established, shall be Excommunicated ipso facto, and not be restored but only by the Archbishop after his repentance and public revocation of those his wicked Errors.  
(7.) The King being next under God supreme governor of the Church of England, may Qua talis redress as he shall see cause, in all matters of Spiritual and Ecclesiastical Jurisdiction for the conservation of the Peace and Tranquillity of his Realms 
k Vid. Stat, supradict. . The Pope, as appears by the Stat. of 25 H. 8. c. 21. claimed full power to dispense with all human Laws of all Realms in all Causes, which he called Spiritual: Now the King as supreme hath the same power in himself within his own Realms legally, which the Pope claimed and exercised by Usurpation. Eadem praesumitur mens Regis, quae est Juris. The King's immediate, personal, ordinary, inherent power, which he executes or may execute Authoritate Regia suprema Ecclesiastica, as King and supreme governor of the Church of England, is one of these Flowers qui faciunt Coronam 
l Colt and Glover against the Bishop of Covent●y and Lichfield. Hob. Rep. . Nor is the King's immediate power restrained by such Statutes as authorise inferior persons: The Lord Chief Justice Hobart asserts, That although the Stat. of 25 H. 8. 21. doth say, That all Dispensations, etc. shall be granted in manner and form following, and not otherwise, yet the King is not thereby restrained, but his power remains full and perfect as before, and he may still grant them as King, for that all Acts of Grace and Justice flow from him 
m Ibid. . By the Eighth Canon Concilii Calchuthensis held under Pope Adrian the First, 
Concil. Calchuth. c. 8. Spelm.  An. 787. the Pope had power to grant what Immunities and privileges he pleased in Church-matters, and they were by the said Canon to be duly observed: Whatever Authority the Pope pretended to in this Kingdom in such matters by way of Usurpation, the same may the King, as supreme governor of the Church next under God in his own Dominions, use and lawfully exercise by his Regal Authority, ex justa plenitudine Potestatis suae. Likewise Pope Agathon, An. 680. in Concilio Romano-Britannico, exercised his Papal Authority, in the time of Lotharius King of Kent, not only touching the Reformation of Errors and Heresies then in this Church, but also as to the composure of differences and dissensions that then were among the Clergy of this Realm. Such precedents of the usurped power of the Papal See exercised in this Kingdom, are now of no further use, than to illustrate or exemplify the Legal power inherent in the Kings of this Realm in such matters of Ecclesiastical Jurisdiction; for the most High and Sacred Order of Kings being of Divine Right, it follows that all persons of what estate soever, and all Causes of what quality soever, whether Ecclesiastical or Civil, within his majesty's Realms and Dominions, are subordinated to the Power and Authority of the King as supreme. It is not only acknowledged, but also constituted by way of an Ecclesiastical Canon, 
Can. 1. of the Synod held at London. An. 1640.  That the power of Calling and Dissolving Councils both National and Provincial, is the true Right of all Christian Kings within their own Realms and Territories.  
(8.) The Ecclesiastical Legislative power was ever in the Kings of this Realm within their own Dominions; That in Ancient times they made their own Ecclesiastical Laws, Canons and Constitutions, appears by several precedents and Records of very great Antiquity, which were received and observed within their own Territories without any Ratification from any foreign power. One instance (among many) may be given of the Ecclesiastical Laws of Alured Mag. Regis Anglorum, An. 887. This they did the jure, by virtue of their own inherent Supremacy. And therefore when Pope Nicholas the Second, An. 1066. in the Bull, wherein he ordained Westminster to be the place for the Consecration of Kings, gave power to Edward the Confessor and his Successors, to constitute such Laws in the Church, as he should think fit, he gave him therein no more than was his own before: For the Kings of England might ordain or repeal what Canons they thought fit within their own Dominions in right of their Regal Supremacy, the same being inherent in them Jure Divino, non Papali. For we find that in King Aetheldreds' days, An. 1009. in Concilio AEnhamensi Generali, the Canons then made, and afterwards caused by King Kanutus to be Transcribed, were called the King's Canons, not the Bishops; En hujus Concilii canon's, quos in suas Leges passim transcripsit Rex Canutus, Malmsburius AEtheldredo Regi, non Episcopis, tribuit. And the Peers of this Realm per Synodum Landavensem were unexcommunicable, 
Circa An. 560.  nisi prius Consulto Rege, aut ejus praecepto. Which is a plain demonstration, That the Kings of England Anciently had the Supremacy and superintendent Ecclesiastical power and Jurisdiction inherent in themselves exclusively to all other, either home or foreign powers whatever.  
(9) It is by good Authority asserted, That the King as supreme, is himself instead of the whole Law, yea, that he is the Law itself, and the only chief Interpreter thereof, as in whose Breast resides the whole knowledge of the same; And that his Majesty by communicating his Authority to his Judge to expound the Laws, doth not thereby abdicate the same from himself, but that he may assume it again unto him, when and as oft as he pleases. Dr. Ridl. View, p. 2. c. 1. Sect. 7. Consonant whereunto is that which Borellus hath, Principum Placita Legis habent vigorem, & eatenus vim Legis obtinebunt, quatenus fuerint cum honestate conjuncta. Borel. de Magist. Edict. l. 2. c. 4. & Roland, à Val. Cons. 91. nu. 54.vo. 2. And Suarez tells us, That Princeps est Lex viva, & reipsa praecipit, ut Lex per scripturam. Of which Opinion also is Alexander, Imola, and many others. Suar. Alleg. 9 nu. 13. The grant of Dispensations is a peculiar and very considerable part of Ecclesiastical Jurisdiction, the which is eminently in the Crown; and by the Stat. of 25 H. 8. the Archbishop of Canterbury may grant Dispensations: Archiepiscopus possit dispensare contra Statutum Provinciale per se editum; Et qui potest jus condere, potest illud tollere. Lindw. de Cler. Conju. c. 2. gl. ult. Extr. de Elect. c. Significasti, etc. Intonuit. And in another place, Episcopus in quibusdam Casibus Dispensare potest contra canon's. Const. Otho. de Concu. Cler. gl. ver. Meritis.  
10. The Laws and Statutes of this Realm have been tender of the King's Supremacy ever since the foreign power over the State Ecclesiastical was abolished; In the Statute of 13 Car. 2. cap. 12. there is a Proviso, That nothing in the said Act shall extend to abridge or diminish the King's majesty's Supremacy in Ecclesiastical matters and affairs. And in the Stat. of 22 Car. 2. cap. 1. there is a Proviso, That, not any thing therein contained shall extend to invalidate or avoid his majesty's Supremacy in Ecclesiastical affairs; but that his Majesty, his Heirs and Successors, may from time to time, and at all times hereafter, exercise and enjoy all Powers and Authority in Ecclesiastical affairs, as fully and amply as any of his Predecessors have or might have done.  
11. As no Convocations for Ecclesiastical Constitutions, or for correction or reformation of Abuses in the Church, can be convened without his Majesties Writ for that end and purpose: so being convened, no Canons or Constitutions that shall then be agreed on, can have any effect in Law, or be in force to oblige any of his majesty's Subjects until his consent thereunto be first had and obtained, and until they shall have the power of Ecclesiastical Laws by being ratified and confirmed by the supreme Authority. Therefore the Archbishop of Canterbury may not hold a Council for his Province without the King's leave; 
Never used to be held but by Sovereign permittance. Hoveden.  for when such Council was held by Hubert Archbishop of Canterbury, it was prohibited by Fitz-Peter Chief Justice, for that he had not the King's licence therein, but he would not obey 
n Speed 538, 12.  And 13 E. 3. Rot. Parl. M. 1. there was a Writ for a Convocation of the Clergy of the Province of Canterbury and Paul's; And another for the other of York, vid. Stat. 25 H. 8. c. 19 where the Clergy of England acknowledge that the Convocations of the same Clergy are, and always have been and aught to be assembled only by the King's Writ. 
Roll. Abridg. verb. Preregative, Lit. X.  The Convocation is under the power and Authority of the King. 21 E. 3. 45. b.  
(12.) After the Reign of King H. 8. this Supremacy in the Crown was signally exercised by King Ed. 6. styling himself, supreme Head (under Christ) of the Church of England and Ireland, in the Preface of his Injunctions, given as well to all the Clergy as Laity of this Realm; the Close whereof is as followeth, viz. All which singular Injunctions the King's Majesty ministereth unto his Clergy and their Successors, and to all his loving Subjects; straight charging and commanding them to observe and keep the same, upon pain of Deprivation, Sequestration of Fruits or Benefices, Suspension, Excommunication, and such other Coercion, as to Ordinaries or others, having Ecclesiastical Jurisdiction, whom his Majesty hath appointed for the due execution of the same, 
Vid. the Injunctions in Bishop Sparrows Collect. of Articles.  shall be seen convenient: Charging and commanding them to see these Injunctions observed and kept of all persons, being under their Jurisdiction, as they will answer to his Majesty for the contrary; And his majesty's pleasure is, That every Justice of Peace (being required) shall assist the Ordinaries and every of them for the due execution of the said Injunctions.  
(14.) The Three first Articles to be enquired of at the Visitations within the Province of Canterbury in the second year of the Reign of the said King Edward the Sixth, were as followeth, viz. (1.) Whether Parsons, Vicars and Curates, and every of them have purely and sincerely, without colour or dissimulation, four times in the year at the least, preached against the Usurped power, pretended Authority and Jurisdiction of the Bishop of Rome? (2.) Whether they have preached and declared likewise four times in the year at least, that the King's majesty's power, authority and pre-eminence, within his Realms and Dominions, is the highest power under God? (3.) Whether any person hath by writing, cyphring, preaching or teaching, deed or act obstinately holden, and stand with to extol, setforth, maintain or defend the authority, jurisdiction or power of the Bishop of Rome, or of his See heretofore claimed and usurped, 
Bishop Sparrow's Collect. ubi. supr. p. 25.  or by any pretence, obstinately or maliciously, invented any thing for the extolling of the same, or any part thereof? Likewise by the Articles of Religion, agreed on by the Convocation held in London, and published An. 1553. by the Authority of King Ed. 6. it is declared, That the King of England is supreme Head in Earth next under Christ of the Church of England, etc. and that the Bishop of Rome hath no Jurisdiction in this Realm. 
Art. 37.  The like you have in the Articles of Religion agreed on by the Archbishops and Bishops of both Provinces, and the whole Clergy, in the Convocation held in London, An. 1562. and published by the Authority of Queen Elizabeth, That the Queen's Majesty hath the chief Power in this Realm of England, and other her Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all Causes doth appertain, and is not, nor aught to be subject to any foreign Jurisdiction. Which Articles (being the Articles of the Church of England) were afterwards ratified and confirmed by his Majesty, King CHARLES I. of ever Blessed Memory, by his Royal Declaration thereunto prefixed, in which Declaration you have as followeth, viz. That we are supreme governor of the Church of England, and that if any difference rise about the External Policy, concerning the Injunctions, Canons, or other Constitutions whatsoever thereto belonging, the Clergy in their Convocation is to order and settle them, having first obtained leave under our Broad Seal so to do: and We approving their said Ordinances and Constitutions, provided that none b● made contrary to the Laws and customs of the landlord. Likewise in the first of the aforesaid Injunctions of King Ed. 6. as also in the first of the Injunctions given by Q. Elizabeth, concerning both the Clergy and Laity of this Realm, published Ann. 1559. being the first year of her Reign, it is enjoined, That all Deans, archdeacon's, Parsons, Vicars, and all other Ecclesiastical persons, shall faithfully keep and observe, etc. all and singular Laws and Statutes made for the restoring to the Crown, the ancient Jurisdiction over the State Ecclesiastical, and abolishing of all foreign power repugnant to the same, etc. By the Statute of 25 H. 8. c. 19 Appeals to Rome are prohibited; and it is Ordained, that in default of Justice in any of the Courts of the Archbishops of this Realm, it shall be lawful to appeal to the King in his Court of Chancery, and thereupon a Commission shall be granted, etc. And by a Proviso towards the end of that Statute an Appeal is given to the King in Chancery upon Sentences in places exempt, in the same manner as was before used to the See of Rome. And as by the said Statute there may be an Appeal to the King in Chancery, 
Vid. Roll. Abr. ver. Prerogativ. Lit. G. 232.  when the Suit is in the Archbishop's Court, or some Peculiar exempt: so in some Cases the Appeal may be to the King generally, as he is supreme Head of all Ecclesiastical Jurisdiction within the Realm; for by the Statutes made in the time of King Hen. 8. the Crown was only remitted and restored to its Ancient Jurisdiction, which had been usurped by the Bishop of Rome: 33 Ed. 3. Fitz. Aid del Roy 103. Reges sacro oleo uncti Spiritualis Jurisdictionis sunt capaces. Rex est Mixta persona cum Sacerdote. Et causa Spiritualis Committi potest Principi Laico. Cassan. in Catal. glow. mund. p. 5. Consid. 24. The King of England, etc. is Persona Sacra & mixta cum Sacerdote, and at his Coronation, by a solemn Consecration and Unction becomes a Spiritual person, Sacred and Ecclesiastical, and then hath tam Vestem Dalmaticam, as an emblem of his Royal Priesthood, quam Coronam Regni in respect of his Regal power in Temporals, and is supreme governor in all Causes and over all Persons, as well Ecclesiastical as Civil. The King is supreme Ordinary by the Ancient Common Law of England, before the Statute of 24 H. 8. cap. 12. for a Resignation might be made to him 
a 19 El. 40. 8. ; he might make a Grant of a Church to a man to hold to his own proper use; 
b 7 E. 3. Fitz. Q. Imp. 19 vid. 29 E. 3. 9  he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary, 
c 1 H. 7. 23.  but also give him Episcopal Jurisdiction; he might Present to Free chapels (in default of the Dean) by Lapse, and that as Ordinary, and in respect of his supreme Ecclesiastical Jurisdiction; 
d 27 E. 3. 84. F. N. B. 34. f.  he might dispense with one not lawfully born, to be a Priest, 
e 11 H. 7. 12.  albeit the Ecclesiastical Laws allowed within this Realm do prohibit it; but the reason is, for that it is not Malum in se, but Malum prohibitum. In a word, All that the Pope was wont to do in such cases within this Realm, as Provisions, 
f 19 E. 3. Fitz. Quare non admisit, 7. vid. Stat. 25. E. 3. De Proviscribus.  Appeals to Rome, 
g Vid. Preamble of the Stat. of 24 H. 8. c. 12.  holding Plea of Spiritual things thence arising 
h 9 E. 4. 3. F. N. B. 44. h. , Excommunications by his Bulls 
i 3● Ass. pl. 19 , and the like, were no other than Usurpations and Encroachments on the Dignity and Prerogative Royal.  
(14.) In the Reign of King H. 8. An. 1539. the Abbots of Colchester, Reading, and Glastenbury, were condemned and executed under colour (so the Author expresses it) of denying the King's Supremacy; and their rich abbeys seized on, as Confiscations to the use of the King 
k Dr. heylin's Hist. Eccl. Restaurat. p. 10. : But when the Act of Supremacy came to be debated in the time of Queen Elizabeth, it seemed a thing strange in Nature and Polity, That a Woman should be declared to be the supreme Head on Earth of the Church of England; but the Reformed party not so much contending about Words and Phrases, as aiming to oust the Pope of all Authority within these Dominions, fixed the supreme power over all Persons and Estates, of what rank soever, in the Crown Imperial, not by the Name of supreme Head, but tantamount, of the supreme Governess. In Queen Mary 's time there was an Act of Parliament made▪ declaring, That the Regal power was in the Queen's Majesty as fully as it had been in any of her Predecessors. In the body whereof it is expressed and declared, That the Law of the Realm is, and ever hath been, and aught to be understood, That the Kingly or Regal Office of the Realm, and al● Dignities, Prerogatives Royal, Power, preeminences, privileges, Authorities and Jurisdictions thereunto annexed, united or belonging, being invested either in Male or Female, are, be, and aught to be, as fully, wholly, absolutely and entirely deemed, adjudged, accepted, invested and taken in the one as in the other. So that whatsoever Statute or Law doth limit or appoint, that the King of this Realm may, or shall have, execute and do, any thing as King, etc. the same the Queen (being Supreme Governess, Possessor and Inheritor to the Imperial Crown of this Realm) may by the same power have and execute, to al● intents, constructions and purposes, without doubt, ambiguity▪ question or scruple; any custom, use, or any other thing to the contrary notwithstanding. By the tenor of which Act made in Queen Mary 's Reign is granted to Queen Elizabeth as much Authority in all the Church-Concernments, as had been exercised and enjoyed by King H. 8. and King Ed. 6. according to any Act or Acts of Parliament in their several times. Which Acts of Parliament (as our learned Lawyers on these occasions have declared) were not to be considered as Introductory of a new power, which was not in the Crown before, but only Declaratory of an old, which naturally belonged to all Christian Princes, and amongst others to the Kings and Queens of the Realm of England. And whereas some Seditious persons had dispersed a rumour, that by the Act for recognising the Queen's Supremacy, there was something further ascribed unto the Queen, her Heirs and Successors, (viz.) a power of administering Divine Service in the Church; which neither by any equity or true sense of the words could from thence be gathered, she thereupon makes a Declaration to all her Subjects, That nothing was, or could be meant or intended by the said Act, than was acknowledged to be due to King H. 8. and King Ed. 6. And further declared, That she neither doth nor will challenge any other Authority by the same, than was challenged and lately used by the said Two Kings, and was of Ancient time due unto the Imperial Crown of this Realm, that is, under God to have the Sovereignty and Rule over all persons born within her Realms and Dominions, of what estate (either Ecclesiastical or Temporal) soever they be, so as no other foreign Power shall, or aught to have any Superiority over them. Which Declaration published in the Queen's Injunctions, An. 1559. not giving that general satisfaction to that groundless Cavil as was expected and intended; the Bishops and Clergy in their Convocation of the year 1562. by the Queen's Authority and Consent, declared more plainly, viz. That they gave not to their Princess by virtue of the said Act or otherwise, either the ministering of God's Word or Sacraments; but that only Prerogative which they saw to have been given always to all godly Princes in holy Scripture by God himself; that is to say, that they should Rule all Estates and Degrees committed to their charge by God, whether they be Ecclesiastical or Temporal, and restrain with the Civil Sword the stubborn and evil doers. And lastly, to conclude this tender point, There is in the said Act, for the better exercising and enjoying of the Jurisdiction thus recognized to the Crown, an Oath (as aforesaid) for the acknowledgement and defence of this Supremacy, not only in the Queen, but also her Heirs and Successors. Likewise a power given to the Queen, her Heirs and Successors, by Letters Patents under the Great Seal of England, To Assign and authorise, etc. as she and they shall think fit, such Persons being natural born Subjects, to exercise, use and occupy under her and them, all manner of Jurisdictions, privileges and preeminencies in any wise, touching or concerning any Spiritual or Ecclesiastical Jurisdiction within the Realms of England and Ireland, or any other her Highness Dominions or Countries, and to visit, reform, repress, order, correct and amend all such Errors, Heresies, Schisms, Abuses, Offences, Contempts and Enormities whatsoever, which by any manner of Spiritual or Ecclesiastical Power, Authority or Jurisdiction, or can or may lawfully be reform, ordered, redressed, corrected, restrained or amended to the pleasure of Almighty God, 
Hactenus Dr. Heylin ubi supra, p. 280, 281, 282.  etc. This was the Foundation of the High-Commission Court, and from hence issued that Commission, by which the Queen's Ministers proceeded in their Visitation, in the First year of her majesty's Reign.   

CHAP. II.  
Of Archbishops.  

1. A Description of that Dignity here in England; the Antiquity, Precedency, privileges and Style of the Archbishop of Canterbury; with the Precincts of that See.  
2. The Antiquity, Precedency, and Style of the Archbishop of York; with the Precincts of that See.  
3. What difference between Archbishop and Metropolitan; and why called Metropolitan.  
4. Three Archbishops in England and Wales, Anciently.  
5. The vicissitudes of the Christian Religion Anciently in this Island of Great Britain.  
6. How the Third Archbishop came to be lost.  
7. The great Antiquity of an Archbishop in London.  
8. The Original of the Style, Primate and Metropolitan.  
9 What the difference Anciently between the Two archbishoprics of Canterbury and York; certain privileges of the latter.  
10. Whether an Archbishop may call Cases to his own cognizance, nolente Ordinario?  
11. In what Case the Clerk is to be Instituted by the Archbishop, where the inferior Ordinary hath right to Collate; Also his power of Dispensations.  
12. A Case at Common Law, relating to the Archbish. Jurisdiction.  
13. Certain special privileges of the Archbishop of Canterbury.   
(1.) ARCHBISHOP [ab Archos, 
Dicuntur Patres propter honor●s eyes exhibendes.  Princeps, & Episcopus, Superintendens] is that Spiritual person Secular, who within that Province whereof he is Archbishop, hath next and immediately under the King, supreme power, Authority and Jurisdiction in all causes and things Ecclesiastical. Of such there are only Two in England; one of the Province of Canterbury, styled Metropolitanus & Primas Totius Angliae; the other of York, styled Primas & Metropolitanus Angliae. Under the two Archbishops are twenty six bishoprics, whereof twenty two in the Province of Canterbury, and four in the Province of York: so that besides the two Archbishops, there are twenty four Bishops. The Christian Religion in England took root first in the See of Canterbury; St. Austin, who first preached the Gospel to the one, was the first Archbishop of the other. Canterbury, once the Royal City of the Kings of Kent, was by King Ethelbert, on his Conversion, bestowed on St. Augustine the Archbishop and his Successors for ever; and so the Chair thereof became originally fixed in that City of Canterbury; Cantuarienses Archiepiscopi, 
An●. Brit. in p●in.  Dorovernenses antiquitus dicti sunt: quia totius Anglicanae Ecclesiae Primates & Metropolitanis fuerunt. The Archbishop whereof, being styled Primate and Metropolitan of all England, is the first Peer of the Realm, and hath Precedency, not only before all the Clergy of the Kingdom of England, but also (next and immediately after the Blood Royal) before all the Nobility of the Realm. Sr. Edward Cok● says more, and lets us to understand, That in Ancient time they had great Precedency, even before the Brother of the King 
a Co. Inst. par. 4. cap. 77. in fin. ; as appears by the Parliament Roll of 18 E. 1. and many others, which continued until it was altered by Ordinance in Parliament in the Reign of H. 6. as appears by a Roll of Parliament of that King's Reign, entered in the Back of the Parliament Roll. The Precedency in Parliament and other Places of Council at this day is, That the two Archbishops have the Precedency of all the Lords Temporal; and every other Bishop in respect of his Barony, hath place of all the Barons of the Realm, and under the estate of the Viscount and other superior Dignities; And at this day, in all Acts, Ordinances and judgements, etc. of Parliament, it is said, The Lords Spiritual and Temporal. The Bishops (among themselves) have this Precedency, (1.) The Bishop of London; (2.) The Bishop of Duresme; (3.) The Bishop of Winchester 
b Co. ibid. . The Archbishop of Canterbury, as he hath the Precedency of all the Nobility, so also of all the great Officers of State. 
He is styled in the King's Writs directed to him, Dei gratia A●chiepisc. po C●n●u●riensi.  He writes himself Divina Providentia, whereas other Bishops only use Divina Permissione. The Coronation of the Kings of England belongs to the Archbishop of Canterbury, and it hath been formerly resolved, that wheresoever the Court was, the King and Queen were Speciales & Domestici Parochiani Domini Archiepiscopi. He had also heretofore this privilege of special remark, That such as held ●ands of him, were liable for Wardship to him, and to compound with him for the same, albeit they held other Lands in chief of our Sovereign Lord the King 
d Dr. Heyli● Help to Hist. verb. Canter●ury. . All the bishoprics in England (except Duresme, Carlisle, Chester, and the Isle of Man, which are of the Province of York) are within the Province of Canterbury 
e Co. Inst. par. 4. cap. 74▪ . The Archbishop whereof hath also a peculiar Jurisdiction in thirteen Parishes within the City of London, and in other dioceses, etc. Having also an Ancient privilege, That wherever any manors or Advowsons' do belong to his See, they forthwith become exempt from the Ordinary, and are reputed Peculiars, and of his diocese of Canterbury. If you consider Canterbury as the Seat of the Metropolitan, it hath under it twenty one Suffragan Bishops, whereof seventeen in England, and four in Wales; But if you consider it as the Seat of a Diocesan, so it comprehends only some part of Kent, viz. 257 Parishes (the residue being in the diocese of Rochester) together with some other Parishes dispersedly situate in several dioceses: it being (as aforesaid) an Ancient privilege of this See, that the places where the Archbishop hath any manors or Advowsons', are thereby exempted from the Ordinary, and are become Peculiars of the diocese of Canterbury, properly belonging to the Jurisdiction of the Archbishop of Canterbury; whose Provincial Dean is the Bishop of London, whose chancellor is the Bishop of Winchester, whose vicechancellor anciently was the Bishop of Lincoln, whose Precentor the Bishop of Salisbury, whose Chaplain the Bishop of Worcester, and the Bishop of Rochester (when time was) carried the Cross before him. Lind. Const. de Poenis, gl. ibid. c. 1. ver. tanquam.  
(2.) The Metropolitan See of York had its Original at the first reception of the Gospel in England, when King Lucius established Samson the first Archbishop thereof: Not long after the Conversion of the Saxons, Paulinus by Pope Gregory's appointment was made Archbishop thereof, An. 622. This Province of York anciently claimed and had a Metropolitan Jurisdiction over all the Bishops of Scotland, whence they had their Consecration, and to which they swore Canonical Obedience 
f Heylin, ubi supra, verb. York. . The Archbishop of York styles himself, Primate and Metropolitan of England, as the Archbishop of Canterbury, Primate and Metropolitan of All England. About two hundred years since, viz. An. 1466. when George Nevil was Archbishop of York, the Bishops of Scotland withdrew themselves from their obedience to him, and had Archbishops of their own. The Archbishop of York hath precedency before all Dukes, not being of the Blood Royal, as also before all the Great Officers of State, except the Lord chancellor 
g Ibid. . Of this Province of York are the bishoprics of Duresme, Chester, Carlisle, and the Isle of Man, who writ themselves Eboracenses, or Eborum. The diocese belonging to this See of York contains the two Counties of York and Nottingham, and in them 581 Parishes, whereof 336 are Impropriations.  
(3.) It hath been questioned, whether there be any difference between Archbishop and Metropolitan; the DD. herein seem to be divided, some conceiving that there is some difference between them, others affirming that they are both one; the Canon Law seems in a sense to favour each of these Opinions, saying in one place, that the Archbishop as precedent hath the charge and oversight of the Metropolitans and other Bishops, 21. Dist. Cleros. In another place, That Archbishop and Metropolitan are but one and the same in deed and in truth, although they differ in Name. Wilhel. in Clem. ult. de Privileg. verb. Archiepiscopo vers. fin. Metropolitanus & Archiepiscopus idem sunt. Sed Metropolitanus nomen trahit à numero Ecclesiarum, viz. à [metro] mensura, & [polis] Civitas. Otho glow. in verb. Archiepiscopus, De Offic. Archiepisc. He is called Archiepiscopus, quasi Princeps Episcoporum, in respect of the other Bishops, whereof he is chief: and Metropolitanus, in respect of the number of the Cities or Cathedral Churches where the bishoprics are. Lindw. ubi supr. gl. ib. ver. Metropolitanum. For the word [Civitas] doth signify with us, as it doth in other Kingdoms, such a Town Corporate as hath a Bishop and a Cathedral Church. Yet Crompton in his Jurisdictions, in his Computation of our Cities, doth omit Ely, though it hath a Bishop and a Cathedral Church. 
St. 35 El. c. 6.  Thus Westminster is called a City, and accordingly there is mention made of a Bishop of Westminster in a Statute made during the Reign of King Henry 8. 
St. 3● H. 8. c. 10.  But by Letters Patents, dated 21. May 2 Eliz. (in pursuance of an Act of Parliament of 1 Eliz. not printed) the Revenues of that late Monastery were vested in the Dean and Chapter of the Collegiate Church of Westminster, which hath caused Errors in the plead of some Cases, by styling it the Cathedral, for Collegiate Church of Westminster. Cassanaeus, 
Cassan. de Consuet. Burgund. pag. 15.  who wrote as well De Gloria Mundi in general, as of the customs of Burgundy in particular, saith, That France hath within its Territories 104 Cities, and gives this Reason, Because there are so many Seats of Archbishops and Bishops. Yet Sir Edw. Coke observes Cambridge to be a City by ancient Record, 
Co. Li●t. fo. 109. b. Mich. 7 R●●. Rot. 1.  although it does not evidently appear that it ever was an Episcopal See: And in the Stat. of 11 H. 7. c. 4. it is there called the Town of Cambridge.  
(4.) In England and Wales there were Anciently three Provinces, and over them Three Archbishops, whose archbishoprics were founded above 1500 years since; For soon after the Conversion of King Lu●ius (who began his Reign over the Britain's, An. 170.) being prevailed with to embrace the Christian Faith by the persuasions of Elvanus, who had been brought up at Glastenbury, and of Medwanus, both Britain's 
h Capg●. Hist, Landa●▪ , and therein confirmed by the Divines which Eleutherius (who became Pope, An 177.) sent into Britain for that end and purpose 
i Malmsb. ; The said King being by them baptised, the False Religion of the Druids with their Idols was soon abolished, Heathen Temples purged, and then consecrated to the service and worship of the True God, and in the place of twenty eight ●lam●ns were Bishops consecrated, the Three Archbishops whereof were founded in the Three chief Cities of the then Three Provinces, erected by the Romans where Arch-Flamins had formerly been maintained, viz. at London, the Metropolis of Britannia Prima: at York the Metropolis of Maxima Caesariensis; and at Caerlegion in Wales, which is said to be Caerleon upon uske, formerly called Isca in Monmouthshire, the Metropolis or chief City of Britannia Secunda, or under Vrbs Legionum, Cambria 
k Lel●nd. in Assert. Artur. ●● 36. a. Mal●●b. Ant. Brit. B. Godw. St. david's in Wales. Sp. fo. 79. nu. 18. . Gildas antiquissimus inter eos, qui fide digni sunt, Britannicarum rerum scriptor, tradit Britannos ab ortu Evangelii Christianam suscepisse fidem. Ant. Brit. ubi supr. Ac primum, Paulum ipsum, cum aliis Gentibus, tum nominatim Britannis Evangelium nunciasse post priorem suam Romae incarcerationem. Theodoret. l. 9 de Curand. Graecor. affect. Origenes, qui proximis fuit post Apostolos seculis, testatur Britanniam in Christianam consentire Religionem. Orig. Hom. 4. in Ezech. Lucius, Rex Britanniae, An. 179. Baptizatus. Ab Eleutherio, pontifice Romano, reformationem Angliae petiit, Episcop. 29. ordinavit. Ant. Brit. fo. 4, 5, 7. Before the coming of the Saxons into England, the Christian Britain's had three Archbishops, viz. of London, York and Caerleon in Wales. The Archiepiscopal See of London, was by the Saxons placed at Canterbury for St. Augustine's sake, where he was buried. That of Caerleon being translated to St. David's, and after subjected to the See of Canterbury.  
(5.) From this time to Dioclesian's Perfecution (which though the Tenth and last, 
An. 302.  yet the first which the Britain's felt) Christianity flourished in this Island, 
An. 306.  which ●y that Persecution was almost extirpated out of the Land, till Constantine the Great wore the Imperial Crown, 
An. 413.  in whose time it revived till the beginning of the next Century, when it was infected with the Pelagian heresy, till the condemnation thereof in the Council of Carthage and Mela, and happily suppressed by Germanus Bishop of Auxerre, and by Lupus Bishop of Troy's in Campeigne, who at the request of the English Catholics were sent by the French Bishops into England; as at the same time, and for the same end, Palladius was by Pope Celestine into Scotland 
l Prosp. Anasi. Cild. Poled. Euch. Hunt. l. 3. . And now the Christian Religion flourished again till the time of the usurping Tyrant Vortiger, who after he had slain Vodinus Archbishop of London 
m B. Godw. Bede l. 1. c. 15. Polych. l. 5. Sp. , was himself burnt in a Castle besieged by Aurelius Ambrose, having first surrendered Kent, Suffolk and Norfolk to the Infidel He●gist, who with his Saxons almost desolated the Land; insomuch that Theanus Bishop of London, and Theodiceus' Bishop of York, were forced to fly into Cornwall and Wales, until St. Augustine's coming hither (where he then found only one Archbishop and seven Bishops) being with forty others as Assistants to him, sent hither by Pope Gregory to Convert the Nation 
n Bede. l. 2. c. 23. Hunt, l. 2. Jo. Dia. in vit. Greg. leg. 2. ; whom Ethelbert King of Kent kindly received, and seated him (as aforesaid) in a Mansion in Canterbury, the Metropolis of his Kingdom 
o Bede, l. 1. c. 25. , and assigned him a place to erect a Bishops See, who afterwards fixed his Seat at Canterbury, whichever since hath continued the Metropolis of this Kingdom: And thus St. Austin upon his Entrance into England, by the favour and bounty of the said King Ethelbert, 
An. 596.  having fixed his Seat at Canterbury, the Archbishops thereof have by a continual Series or Succession continued as Metropolitans of all England.  
(6.) And whereas there were (as aforesaid) anciently Three archbishoprics in Three distinct Provinces within this Kingdom, whereof that of Caerleon upon uske in Wales was one, and whereof Dubritius in the year 466 was Archbishop, who having his Seat at Landaff, became for his integrity Archbishop of all Wales, and was upon Resignation in his old Age succeeded in the archbishopric by his Disciple David, 
An. 519.  Uncle toking Arthurn, by whose consent he removed the See to Menevia, of which place he still retaineth the name of Episcopus Menevensis, and the Town itself thereupon called Twy Devi, or Saint david's, as taking its denomination from his Name; yet it afterwards so unhappily happened, that Samson a succeeding Archbishop, upon a great Plague raging in Wales, went to Dola in Little Britain, and thither carried the Pall with him, whereby St. david's for ever after lost the dignity of an Archbishop. And in the time of H. 1. both that See, and the rest in Wales became subject to the Archbishop of Canterbury, 
q Cambd.  as at this day 
p Cambd. Bale ex Leland B. Godw. .  
(7.) In the time of King Lucius, London had an Archbishop to whose Jurisdiction at that time the greatest part of England was subject; This Archbishop was that Theanus forementioned, who was the chief Founder and Builder of St. 
Antiq. E●it, f. 11.  Peter's Church in Cornhill, London, which was the Cathedral of his diocese till King Ethelbert built St. Paul's Church. In this See continued the Dignity of an Archbishop above 180 years; but by reason of the Saxon Persecution stood void, till that Ten years after the coming of St. Austin, Melitus was consecrated Bishop of that See, and so it continued ever after as a bishopric (which in the days of King Lucius was an archbishopric, as aforesaid) till St. Augustine in the year 598 took on him the Title of Archbishop of England, settling his See at Canterbury.  
(8.) Upon the abrogating of the Pope's power in England by King H. 8. in the Seventh year of his Reign, it was concluded, that the Archbishop of Canterbury should no more be styled the Pope's Legate, but Primate and Metropolitan of all England; at which time Tho. Cranmer, Fellow of Jesus-Colledge in Cambridge, who pronounced the Divorce from Queen Katherine of Spain, upon his advice given the King to leave the Court of Rome, and to require the Opinions of Learned Divines, being then in Germany, procured such favour with the King, that he caused him to be elected to this See of Canterbury, and was afterwards, with the then Bishop of Duresme, made Tutor to King Edward the Sixth 
r Ant. ●rit. .  
(9) The Archbishop of Canterbury was supposed to have had a concurrent Jurisdiction in the inferior dioceses within his Province; which is not denied in the case of Dr. James 
s Dr. James' Case, Heb. Rep. ; only it is there said, That was not as he was Archbishop, but as he was Legatus Natus to the Pope, as indeed so h● was before the t●me of King H. 8. (as aforesaid) by whom that Power (together with the Pope) was abrogated, and so it ceased; which the Archbishop of York never had, nor ever claimed 
t Case ibid. , as appears in the forecited Case, where it is further said, That when there is a controversy between the Archbishop and a Bishop touching Jurisdiction, or between other Spiritual Persons, the King is the indifferent Arbitrator in all Jurisdictions as well Spiritual as Temporal, and that is a right of his Crown to distribute to them, that is, to declare their Bounds; Consonant to that which is asserted in a Case of Commendam, in Colt and glover's Case against the Bishop of Coventry and Lich●ield, where it is declared by the Lord Hobart Chief Justice, That the King hath an immediate, personal, originary, inherent Power, which he executes, or may execute, Authoritate Regia Suprema Ecclesiastica, as King and Sovereign governor of the Church of England, which is one of those Flowers, qui faciunt Coronam, which makes the Royal Crown and Diadem in force and virtue 
u Mich. 10. Jac. rot. 2642. Colt and Glov●r verse. Bp. of Covent. and L●c●field. Hob. Rep▪ . The Archbishop of Canterbury, as he is Primate over All England, and Metropolitan, hath a Supereminency, and some power even over the Archbishop of York; hath (under the King) power to summon him to a National Synod, and Archiepiscopus Eboracensis venire debet cum Episcopis suis, ad nutum ejus●, ut ejus Canonicis dispositionibus Obediens existat. Yet the Archbishop of York had anciently not only divers bishoprics in the North of England, under his Province; but for a long time all the bishoprics of Scotland, until little more than 200 years since, and until Pope Sixtus the Fourth, An. 1470. created the Bishop of St. Andrews, Archbishop and Metropolitan of all Scotland. He was also Legatus Natus, and had the Legantine Office and Authority annexed to that archbishopric; he hath the Honour to Crown the Queen, and to be her perpetual Chaplain: Of the forementioned dioceses of his Province, the Bishop of Durham hath a peculiar Jurisdiction, and in many things is wholly exempt from the Jurisdiction of the Archbishop of York; who hath notwithstanding divers privileges within his Province, which the Archbishop of Canterbury hath within his own Province.  
(10.) The Archbishop is the Ordinary of the whole Province; yet it is clear, That by the Canon Law he may not, as Metropolitan, exercise his Jurisdiction over the Subjects of his Suffragan Bishops; but in certain Cases specially allowed in the Law, whereof Hostiensis enumerates one and twenty 
x Hestiens. cap. pastorally de Of●icio Ordinari●. . The Jurisdiction of the Archbishop is opened sometimes by himself, nolente Ordinario, as in the Case of his Visitation; and sometimes by the party, in default of Justice in the Ordinary, as by Appeal, or Nullities. Again, it may sometimes be opened by the Ordinary himself, without the party or Archbishop, as where the Ordinary sends the Cause to the Archbishop; for although the Canon Law restrains the Archbishop to call Causes from the Ordinary, Nolente Ordinario, save in the said 21 Cases; yet the Law left it in the absolute power of the Ordinary, to send the Cause to the Archbishop absolutely at his will, 
Vid. Case Jones verse. Jones, Hob. Rep.  without assigning any special reason; and the Ordinary may consult with the Archbishop at his pleasure, without limitation. Notwithstanding which, and albeit the Archbishop be Judge of the whole Province, tamen Jurisdictio sua est signata, & non aperitur nisi ex causis. Nor is the Subject hereby to be put to any such trouble as is a Grievance; and therefore the Law provides, that Neminem oportet exire de Provincia ad Provinciam, vel de Civitate ad Civitatem, nisi ad Relationem Judicis, ita ut Actor forum Rei sequatur 
y Bald. Caus● 3. Q. 6. c. penult. Ex Synod. Rom. .  
(11.) If the Archbishop visit his inferior Bishop, and Inhibit him during the Visitation, if the Bishop hath a title to Collate to a Benefice within his diocese by reason of Lapse, yet he cannot Institute his Clerk; but he ought to be presented to the Archbishop, and he is to Institute him, by reason that during the Inhibition his power of Jurisdiction is suspended 
z Trin. 1● Car. B. R. inter Dodson & Lynn. . It was a point on a special Verdict in the County of Lincoln, and the Civilians who argued thereon seemed to agree therein; but the Case was argued upon another point, and that was not resolved 
a Intrat. Tr. 11 Car. Rot 446. & Rol. Abr. verb. presentment. lit. C. p. 357, & lit. Z. 367. . Likewise, by the Statute of 25 H. 8. c. 21. the Archbishop of Canterbury hath power to give Faculties and Dispensations, whereby he can (as to Plurality) sufficiently now Dispense de jure, as Anciently the Pope did in this Realm de facto, before the making of that Statute, whereby it is enacted, That all Licenses and Dispensations (not repugnant to the Law of God) which heretofore were sued for in the Court of Rome, should be hereafter granted by the Archbishop of Canterbury and his Successors.  
(12.) By the Constitutions and Canons Ecclesiastical, Edit. 1603. Can. 94. It is Ordained, That no Dean of the Arches, nor Official of the Archbishop's Consistory, shall originally Cite or Summon any person which dwelleth not within the particular diocese or Peculiar of the said Archbishop, etc. without the licence of the Diocesan first had and obtained in that behalf, other than in such particular Cases only as are expressly excepted and reserved in and by the Statute of 23 H. 8. c. 9 on pain of suspension for three months. In the Case of Lynche against Porter, for a Prohibition upon the said Statute of 23 H. 8. c. 9 it was declared by the Civilians in Court, That they used to Cite any Inhabitant of and in London to appear, and make Answer in the Archbishop of Canterbury's high Court of Arches originally: And Dr. Martin said, It had been so used for the space of 427 years before the making of the Statute; and upon complaint thereof made to the Pope, the Answer was, That any man might be Cited to the Arches out of any diocese in England: Also, That the Archbishop may hold his Consistory in any diocese within his Jurisdiction and Province: That the Archbishop hath concurrent Jurisdiction in the diocese of every Bishop, as well as the Archdeacon: and, That the Archbishop of Canterbury prescribes to hold Plea of all persons in England. But as to his power of having a Consistory in the diocese of every Bishop, this was in this Case denied, but only where he was the Pope's Legate, whereof there were Three sorts: (1.) Legates à Latere, and these were Cardinals, which were sent à Latere from the Pope. (2.) A Legate born, and these were the Archbishops of Canterbury, York, and Mentz, etc. (3.) A Legate given, and these have Authority by special Commission from the Pope 
b ●rownl. Rep. p. 2. Case Lynche verse. ●orter. . Likewise, in the Case of Jones against Boyer, C. B, it was also said by Dr. Martin, That the Archbishop hath Ordinary▪ Jurisdiction in all the dioceses of his Province, and that this is the cause that he may Visit 
c Trin. 9 Jac. C. B. ●ones verse. ●oyer. Brownl. ibid. .  
(13.) The Archbishop of Canterbury Anciently had Primacy as well over all Ireland as England, from whom the Irish Bishops received their Consecration, for Ireland had no other Archbishop until the year 1152. For which reason it was declared in the time of the Two first Norman Kings, That Canterbury was the Metropolitan Church of England, Scotland and Ireland, and the Isles adjacent▪ the Archbishop of Canterbury was therefore sometimes styled a Patriarch 
d Patriarcha was a chief Bishop over several Kingdoms or Provinces (as an Archbishop is of several dioceses) and had several Archbishops under him.  and Orbis Britannici Pontifex, insomuch that Matters recorded in Ecclesiastical Affairs did run thus, viz. Anno Pontificatus Nostri primo, secundo, etc. He was also Legatus Natus, that is, he had a perpetual Legantine power annexed to his archbishopric nigh a thousand years since. And at General Councils he had the Precedency of all other Archbishops abroad, and at home he had some special Marks of Royalty, as to be the Patron of a bishopric, as he was of Rochester) to coin money, to make Knights, and to have the Wardships of all those who held Lands of him Jure Hominii, although they held in Capite other ●ands of the King, as was formerly hinted. He is said to be enthroned, when he is invested in the archbishopric. And by the Stat. of 25 H▪ 8. he hath power to grant Licenses and Dispensations in all Cases heretofore sued for in the Court of Rome, not repugnant to the Law of God, or the King's Prerogative: As also, to allow a Clerk to hold a Benefice in Commendam or in Trust; to allow a Clerk, rightly qualified, to hold Two Benefices with Cure of Souls; to allow a Beneficed Clerk, for some certain causes, to be non-Resident for some time, and to Dispense in several other Cases prohibited by the Letters of the Canon Law. Likewise the Archbishop of Canterbury Consecrates other Bishops; confirms the Election of Bishops within his Province; calls Provincial Synods according to the King's Writ, to him ever directed; is chief Moderator in the Synods and Convocations; he visits the whole Province; appoints a Guardian of the Spiritualties during the vacancy of any bishopric within his Province, whereby all the Episcopal Ecclesiastical Rights of that diocese for that time belong to him; all Ecclesiastical Jurisdictions as Visitations, Institutions, etc. He may retain and qualify Eight Chaplains, which is more by Two than any Duke is allowed by Statute to do; and hath power to hold divers Courts of Judicature, for the decision of Controversies pertaining to Ecclesiastical Cognizance.   

CHAP. III.  
Of Bishops and Ordinaries.  

1. Bishop, Why so called; Not above One to be in one diocese.  
2. Why called Ordinary; and what the Pallium Episcopale is.  
3. Bishoprics originally Donative; Kings of England the Founders thereof.  
4. The manner of Election of Bishops; their Confirmation and Consecration.  
5. Their Seals of Office; in what cases they may use their own Seals.  
6. What follows upon Election, to make them Bishops complete; the grant of their Temporalties.  
7. The Congee d'eslire, and what follows thereupon.  
8. Bishoprics were Donative, till the time of King John.  
9 What the Interest and Authority is, in his several capacities.  
10. Episcopal Authority derived from the Crown.  
11. The use and Office of Suffragan Bishops.  
12. Whether a Bishop may give Institution out of his own proper diocese, and under other Seal than his own Seal of Office.  
13. Several things incident to a Bishop qua talis.  
14. Ordinary, what properly he is, and why so called.  
15. In what cases the Ordinaries Jurisdiction is not merely Local.  
16. The Ordinaries power de jure Patronatûs.  
17. Whether the Ordinary may cite a man out of his own diocese; Also his Right ad Synodalia.  
18. The Ordinaries power of Visitation.  
19 The Dignity, and true Precedency of the Bishops in England.  
20. Temporal Jurisdiction anciently exercised by Bishops in this Realm; the Statute of 17 Car. 1. against it, Repealed; and they Restored to it by the Stat. of 13 Car. 2. as formerly.  
21. The Act made in the Reign of Ed. 6. concerning the Election of Bishops; the Endeavours thereby to take away Episcopal Jurisdiction; the Nomination of all Bishops was Anciently Sole in the King.  
22. The Bishops of London are Deans of the Episcopal college.  
23. A Case at Common Law, 
Bishop, supposed from the Saxon word, Biceop, and that from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Speculator vel Superintendens.  touching a Lease made by one Bishop during the life of another of the same diocese in Ireland.   
(1.) BISHOP, Episcopus, from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, supra, and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, intendere, an Overseer or Superintendent, so called from that watchfulness, care, charge, and faithfulness, which by his Place and Dignity he hath and oweth to the Church; A word which all Antiquity hath appropriated to signify the Chief in Superintendency over the whole Church within his diocese, wherein are divers inferior Pastors. This Oversight or Care the Hebrews call Pekudah 
a Numb. 3. 32. . Of this Office or Ecclesiastical Dignity there can be but one at a time in one and the same diocese; whence it is that Cornelius Bishop of Rome (as Eusebius relates) upbraided Novatius for his ignorance in that point 
b Eus●b. l 1. Hist. Eccl. , when he could not but know there were no less than 46 Presbyters in that Church; Oecumenius and St. chrysostom affirming also, as many at Philippi; For in this restrained sense, as the word [Bishop] is now taken, it cannot be imagined that there should be more than one in one City or diocese at the same time; consonant whereunto the Synod of Nice prohibited Two or more Bishops to have their Seats at once in the same City. This Novatius aforesaid was a Priest of Rome 254 years after Christ; he abhorred Second Marriages, and was condemned as an heretic in a Synod at Rome the same year 
c Euseb. ib. cap. 42.  Every Bishop, many Centuries after Christ, was universal Incumbent of his diocese, received all the Profits, which were but Offerings of Devotion, out of which he paid the Salaries of such as Officiated under him●, as Deacons and Curates in places appointed 
d Seld. Hist, T●bes, c. 6. p. 3. fo. 80. b. etc. 9 p. 2. fo. ●53. .  
(2.) Under this Name or Appellation of Bishops are contained, Bishops, Primates, Metropolitans, patriarches, and Summus Pontifex. Dist. 21. c. 1. And the Presbyters also, C. Legimus, §. 1. Dist. 93. Spec. de Instr. Edit. Sect. 14. vers. de Episcopo, and for such commonly used and taken in the New Testament 
e Phil. 1. 1. Acts 1. 21. : l. 14. c. de Episc. & Cler. In some Acts of Parliament we find the Bishop to be called Ordinary 
f Westm. 2. c. 19 31 E. 3. c. 11. 22 H. 8. 5. Co. Lit. fo. 344. ; and so taken at the Common Law, as having Ordinary Jurisdiction in Causes Ecclesiastical; albeit in the Civil Law, whence that word [Ordinarius] is taken, it signifies any Judge authorized to take Cognizance of Causes proprio suo jure, as he is a Magistrate, and not by way of Deputation or Delegation 
g Vid. Br●. tit. Ordinarius. . The word [Ordinary] doth chief take place in a Bishop, and other superiors, who alone are Universal in their Jurisdictions; yet under this word are comprised also other Ordinaries, viz. such as to whom Ordinary Jurisdiction doth of right belong, whether by privilege or by custom. Lindw. de Constit. c. Exterior. ver. Ordinarii. The Pallium Episcopale, or Bishop's Pall, mentioned (as Sr. Ed. Coke observes) in some Statutes, and many Records and Histories, is a Hood of white Wool, to be worn as doctor's Hoods upon the shoulders, with Four Crosses woven into it, etc. for the Form and Colours whereof vid. Antiq. Brit. Eccles. fo. 1. This Pallium Episcopale is the Arms belonging to the See of Canterbury 
h Co. Inst. p. 4. c. 74. vid. 20 H. 8. c. 20. : vid. Cassan. de glow. mun. p. 4. fo. 103. a. 26. Consid. ubi multa Legas de Pallio. Henry Dean, the 65th Archbishop of Canterbury, An. 1502. had Pallium Archiepiscopatus Insigne sent him from Pope Alexander 6. by his Secretary Adrian; which by the Bishop of Lichfield and Coventry, Authorized thereto by the Pope, was presented him at Lambeth in these words, viz. Ad honorem Dei Omnipotentis, etc. Tibi tradimus Pallium de Corpore beati Petri sumptum, plenitudinem videlicet Pontificalis Officii, &c. 
k Ant. Brit. A●gl. fo. 302. nu. 30. , whereupon he swore Canonical obedience to the Apostolical See of Rome.  
(3.) The Kings of England were Anciently the Founders of all the archbishoprics and bishoprics in this Realm 
l Co. p. 5. Cawd●y's Case St. 1 Jac c. 3. 17 Ed. 3. 40. By delivery of a Ring, with a Crosier or Pastoral Staff. Roll Abr. ver. Presentment, Advowson 342. ; and also in Wales, the Bishops thereof were Originally of the Foundation of the Princes of Wales. Bishops in England originally were Donative per traditionem Baculi Pastoralis & Annuli, until King John by his Charter granted, that they should be Eligible. Chart. 25. Jan. An. Reg. 17. De Commu●i Consensu Baronum; after which came in the Congé d'Eslire. And at this day the bishoprics in Ireland are Donative: Rolls 342. The Patronage of all bishoprics is in the King, so as that he gives leave to the Chapters to choose them 
m 17 E. 3. 40. b. . In Ancient times the King gave the bishoprics, and then afterwards gave leave to the Chapters to choose them, as aforesaid 
n Ibid. . The learned sergeant Roll, in that part of his abridgement touching this Subject, makes mention of 1 E. 1. Rot. Clauso Memb. 11. in dorso, where there is this Protestation made by the King, Cum Ecclesia Cathedralis viduatur, & de jure debeat, & soleat de Consuetudine provideri per Electionem Canonicam ab ejusmodi potissimum Celebrandam Collegiis, Capitulis, & personis, ad quos jus pertinet, petita tamen prius ab Illustri Rege Angliae super hoc Licentia & obtenta; & demum Celebrata Electione, persona Electa eidem Regi habeat Praesentari, ut idem Rex contra personam ipsam possit proponere, si quid rationabile habeat contra eum. And the Protestation goes further, That in case the Pope makes Provision without such Canonical Election, the King shall not be obliged to give him his Temporalties; yet of grace for the time present he give the Temporalties to the Abbot Elect of Canterbury 
o Vid. Similiter 11 E. 1. Rot. Finium. M. 5. for the Abbot of St. Augustine of Canterbury, etc. See it there at large. . Thus the Election of Bishops by Deans and Chapters began by the grant of the King; but the Grant was to Elect after licence first had and obtained, as appears by the Stat. of 25 Ed. 3. Stat. de Provisoribus. Rastal. 325 d. And King John was the first that granted it by his Charter, dated 15 Jan. An. 16. 
p Matth. Par. Hist. Mag. 253. Da. 1. Dean and Charter, Fernes, 46. & Praemuni e 90. . William Rufus K. after the Archbishop of Canterbury's death, kept the See without an Archbishop for the space of four years, and then assumed divers other Ecclesiastical Promotions into his own hands that were then vacant, putting to Sale divers Rights and Revenues of the Church 
q Speed 428. b. . But King H. 1. made a Law against Reservations of Ecclesiastical Possessions upon Vacancies 
r Idem 453. . In the time of Edward the Confessor the Prelates used to receive Investitute from the King by giving them the Pastoral Staff and a Ring 
s Matth. Paris:. ; And so it was used in the time of H. 1. but Suffragans were invested only by the Ring, without the Staff, for that they are not Bishops so fully and completely as the other 
t Dr. Field 148. .  
(4.) To the Creation of Bishops are requisite, Election, Confirmation, Consecration, and Investiture. Upon the vavancy of a See the King grants his licence under his Great Seal to the Dean and Chapter of such vacant Cathedral to proceed to an Election of such a person as by his Letters Missive, he shall nominate and appoint to succeed in such vacant archbishopric or bishopric; which Election must be within twenty days next after their receiving such licence or Letters Missive; upon failure whereof they run the danger of a Praemunire 
v Vid. St. 25 H. 8. 20. Sec. 3. Rastall. vid. Co. par. 12. Rep. 59 2●.  Or if above twelve days after their receipt thereof the Election be deferred, the King may by his Letters Patent nominate or present to such vacant bishopric, to the Archbishop or Metropolitan of that Province wherein such See is void; or unto one Archbishop and two other Bishops, or to four such Bishops as his Majesty shall think fit, in case upon such Nomination or Presentment by the King, the default of Election by: the Dean and Chapter be to the Office and Dignity of a Bishop: Otherwise, if they Elect according to his majesty's pleasure in his Letters Missive, the Election is good; and upon their Certificate thereof unto his Majesty under their Common Seal, the person so Elected is reputed and called Lord Bishop Elect; yet is he not thereby complete Bishop to all intents and purposes, for as yet he hath not Potestationem Jurisdictionis neque Ordinis, nor can have the same until his Confirmation and Consecration 
w Mich. 22 Jac. Latch. Rep. 246. ; for which Reason it is, that if (after such Election and before Consecration) a Writ of Right be brought in the Court of a manor belonging to such bishopric; it is not directed Episcopo, but Ballivis of the Bishop Elect. The order of making a Bishop consists chief in these Eight things, viz. 1. Nomination, 2. Congé d'Eslire, 3. Election, 4. Royal Assent, 5. Confirmation, 6. Creation, 7. Consecration, 8. Installation. Vid. Grendon's Case in ploughed. & Trin. 17 Jac. B. R. Sobrean & Teige vers. Kevan, Roll. Rep. par. 2. 
x F. N. B. ●. . The Creation of a Bishop is in this Solemn manner, viz. The Bishops See being vacant, the Dean and Chapter of that Cathedral gives notice thereof to the King, humbly requesting his Majesty's leave to choose another; the King grants his Congé d'Eslire: Thereupon the Dean summons a Chapter; they elect the person recommended by his majesty's Letters; that Election (after a first or second modest refusal) being accepted by the party elected, is certified to the King, and to the Archbishop of that Province; hereupon the King grants his Royal Assent under his Great Seal, exhibited to the said Archbishop, with Command to Confirm and Consecrate him; upon this the Archbishop subscribes his Fiat Confirmatio, withal giving Commission under his Archiepiscopal Seal to his Vicar-General, to perform all the Acts requisite for perfecting his Confirmation. Hereupon the Vicar-General in the Archbishop's name issues a Citation, summoning all Oppose●s of the said Election to make their appearance at a certain time and place, then and there to offer their Objections, if they have any: This done by an Officer of the High-Court of Arches (usually at Bow-Church, London) by Proclamation thrice, and affixing the said Citation on that Church-door, an authentic Certificate thereof is by the said Officer returned to the said Archbishop and Vicar-General. At the time and place aforesaid the Proctor for the said Dean and Chapter exhibits the Royal Assent, and the Commission of the Archbishop, to the Vicar-General, who after the reading thereof accepts the same; Then the Proctor exhibits the Proxy from the Dean and Chapter, presents the elected Bishop, returns the Citation, and desires that the Opposers may be thrice publicly called; which done, and their Contumacy accused, desires that in poenam Contumaciae the business in hand may proceed, which the Vicar-General: in a Schedule by him read and subscribed doth order. Then the Proctor gives a Summary Petition, therein deducing the whole Process of Election and Consent, and desires a time may be assigned him to prove it, which the Vicar-General admits and decrees. After this, the Proctor exhibits the Royal Assent again, with the elected Bishops Assent▪ and the said Certificate to the Archbishop, desiring a time to be presently assigned for Final Sentence, which the Vicar-General decrees. Then the Proctor desires, that all Opposers may again be thrice publicly called; which done, and none appearing nor opposing, they are pronounced Contumacious, and a Decree made to proceed to Sentence, by a Schedule read and subscribed by the Vicar-General. Whereupon the Bishop elect takes the Oaths of Supremacy, Simony, and Canonical Obedience. After this, the Dean of the Arches reads and subscribes the Sentence. Next after the Confirmation, follows the Consecration of the elected Bishop, according to the King's Mandate, which is solemnly done by the Archbishop, with the assistance of two other Bishops, according to the approved Rights and Ceremonies of the Church of England, and in conformity to the manner and Form of Consecrating Bishops, according to the Rule laid down in the Fourth Council of Carthage; about the year 470, generally received in all the Provinces of the Western Church. After the Premises, there issues a Mandate from the Archbishop to the Archdeacon of his Province, to install the Bishop Elected, Confirmed, and Consecrated; who (or his Proxy, which is usual) being in presence of a public Notary introduced into the Cathedral Church on any day▪ between the hours of 9 and 11, by the said Archdeacon, doth first declare his assent to the King's Supremacy, etc. Then the Archdeacon, with the Canons, etc. having accompanied the Bishop to the choir, and placed him in the Episcopal Seat, doth pronounce as followeth, viz. Ego authoritate mihi Commissa Induco & Inthro●izo Reverendum in Christo Patrem, Dominum J. S. Episcopum; Et Dominus custodiat suum introitum & exitum ex hoc, nunc & in saeculum, etc. Then after the Divine Service proper for the occasion, the Bishop being conducted into the chapterhouse, and there placed on a high Seat, the Archdeacon and all the prebend's, etc. of the Church acknowledge Canonical Obedience to him. And the public Notary, by the archdeacon's command, records the whole matter of Fact in this Affair, in an Instrument to remain as authentic to Posterity. After all which, the Bishop is introduced into the King's presence to do his Homage for his Temporalties or Barony, by kneeling down, and putting his hands between the hands of the King, sitting in his Chair of State, and by taking a solemn Oath, to be true and faithful to his Majesty, and that he holds his Temporalties of Him. When Matth. Parker in the second year of Queen Eliz. 1559. elected to the archbishopric of Canterbury, had his Confirmation in the Court of Arches, according to the usual form in that behalf. This being performed, an entertainment for the Vicar General, the Dean of the Arches, and other Officers of that Court (whose presence was requisite at this Solemnity) was provided at the nagshead Tavern in Cheapside, Lond. whereby occasion was taken by the Roman Adversaries maliciously to report, That the Nagshead Tavern was the place of Consecration: Heyl. The form or manner of making a Bishop, and of translating him from one bishopric to another, differs only in this, that in the latter there needs no Consecration. And the translation of a Bishop to an archbishopric, differs only in the Commission, which is directed by his Majesty to four or more Bishops to Confirm him.  
(5.) Each Archbishop, every Bishop, and their Officials have their Seals of Office respectively, which being affixed to a writing, makes the Instrument authentic, whereby the use and practice of Tabellions or public Notaries (as in foreign parts) is with us much abated. For that of a Tabellion allowed by Authority to Engross and Register private Contracts and Obligations, his Office in some Countries did formerly differ from that of a public Notary, but now they are as one and the same Office; Quoniam Tabellionum usus in Regno Angliae, proper quod magis ad Sigilla Authentica credi est necesse, ut ●orum facilius habeatur, Statuimus ut Sigillum habeant non solum Archiepiscopi & Episcopi, sed eorum Officiales 
y Matt. Pari●. fo. 454. de An. 1236. . And all Bishops, Ordinaries, Archdcacons, and all others exercising any Ecclesiastical Jurisdiction, aught to have the King's Arms engraven on their Seal of Office; but the Archbishop of Canterbury may use his own Seal 
z Stat. 1 Ed. 6. 2. . And all Process Ecclesiastical, and Certificates into any Court of Record, are to be in the King's name, Teste the Bishop 
a Ibid. . But as to the making, admitting, ordering, and reforming of Chancellors, Commissaries, Officials, Advocates, Proctors, and other Officers, Ministers and Substitutes: This the Bishops may do in their own Names, and under their own Seals 
b Ibid. .  
(6.) If one be Elected, and the Temporalties granted to him, yet he is not Bishop before Consecration. 41 E. 3. 6. 46 E. 3. 32. Quaere, For he may refuse to be Bishop after Election, and before Consecration, but not after. 41 E. 3. 5. b. When upon vacancy of a bishopric the Dean and Chapter, by virtue of his majesty's licence, under the Great Seal of England, hath proceeded to the Election of a new Bishop in pursuance of, and according to his majesty's Letters Missive on that behalf, and Certificate thereof made unto the King's Majesty under their Common Seal, then follows the Confirmation, Consecration and Investiture, by the Archbishop or Metropolitan of that Province, wherein such bishopric was void, the said Election having (upon such elected Bishop's Oath of Fealty to the King's Majesty) been first signified to the Archbishop by the King, 
Bishops have Precedency of all Temporal Barons under Viscount's.  under his Great Seal, whereby the said Archbishop is required to Confirm the said Election, and to Consecrate and Invest the person Elected; And now he is complete Bishop, as well unto Temporalties as Spiritualties; yet after his Confirmation and before his Consecration, the King may (if he please) ex gratia grant him the Temporalties 
c 41 Ed. 3. 6. 46 Ed. 3. 22. . But after his Consecration, Investiture, and Instalment, he is qualified to sue for his Temporalties out of the King's hands by the Writ de Restitutione Temporalium 
d F. N. B. acc. . And yet it seems the Temporalties are not the jure to be delivered to him, until the Metropolitan hath certified the time of his Consecration, although the Freehold thereof be in him by his very Consecration 
e 38 E. 3. 30. Pars. Law, cap. 1. . But if during the Vacation of archbishoprics, or bishoprics, and while their Temporalties are in the King's hands, the Freehold-Tenants of Archbishops or Bishops happen to be attainted of Felony, the King by his Prerogative hath the Escheats of such Freeholders-Lands, to dispose thereof at his pleasure, saving to such Prelates the Service that is thereto due and accustomed 
f St. 17 Ed. 2. 14. . Before the Conquest the Principality of Wales was held of the King of England, and by the Rebellion and forfeiture of the Prince, the Principality came to the King of England, whereby the bishoprics were annexed to the Crown, and the King grants them their Temporalties. 10 H. 4. 6.  
(7.) The manner of making a Bishop is fully described in Evans and Kiffin's Case against Askwith, wherein it was agreed, That when a Bishop dies, or is Translated, the Dean and Chapter certify the King thereof in Chancery, and pray leave of the King to make Election; Then the King gives his Congé d'Es●ire, whereupon they make their Election, and first certify the same to the party Elect, and have his consent; Then they certify it to the King in chancery, also they certify it to the Archbishop; and then the King by his Letters Patents gives his Royal Assent, and commands the Archbishop to Confirm and Consecrate him, and to do all other things necessary thereunto; whereupon the Archbishop examines the Election, and the Ability of the party, and thereupon confirms the Election, and after Consecrates him according to the usage upon a New Creation: And upon a Translation all the said Ceremonies are observed, saving the Consecration, which is not in that case requisite, for that he was Consecrated before.  
(8.) Bishoprics were Donatives by the King, till the time of W. Rufus, and so until the time of King John. Read for that the History of Eadmerus. Vid. Case Evans verse. Ascouth, in ●in. Ca●. Noy 's Rep. It hath been generally held, That before the Conquest and after, till the time of King John, Bishops were Invested by the King per Baculum & Annulum; but King John by his Charter granted, That there should be a Canonical Election with Three Restrictions: (1.) That leave be first asked of the King. (2.) His Assent afterwards. (3.) That he shall have the Temporalties during the Vacation of the bishopric; whereof mention is made in the Stat. of 25 Ed. 3. de Provisoribus, and which is confirmed by the Stat. of 13 R. 2. c. 2. 
g Case of the Dean and Chapter of Norwich. Co. Rep. par. 3. . Also the Law in general is positive therein, That in the making of all Bishops, it shall be by Election and the King's Assent; and by the 25 H. 8. the Statute for Consecration of Bishops, makes it more certain: And if the Pope after the said Charter did use to make any Translation upon a Postulation without Election and Assent of the King, it was but an Usurpation, and contrary to the Law, and restrained by 16 R. 2. and 9 H. 4. 8. And after the 25 H. 8. it was never used to have a Bishop by Postulation or any Translation of him, but by Election, as the said Statute prescribes; And the form of making a Bishop at this day, is after the same manner as aforesaid, and according to the said Statute.  
(9) The Interest and Authority which a Bishop Elect hath, is, That he is Episcopus Nominis, non Ordinis, neque Jurisdictionis; But by his Confirmation he hath Potestatem Jurisdictionis, as to Excommunicate and certify the same, 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease 
h Dyer 350. . But after Election and Confirmation he hath Potestatem. Ordinationis, for than he may Consecrate, confer Orders, etc. For a Bishop hath Three Powers, (1.) Ordinis, which he hath by Consecration, whereby he may take the Resignation of a Church, confer Orders, consecrate Churches; And this doth not appertain to him quatenus, Bishop of this or that place, but is universal over the whole World: So the Archbishop of Spalleto, when he was here, conferred Orders. (2.) Jurisdictionis, which is not Universal, but limited to a place, and confined to his See; This power he hath upon his Confirmation. (3.) Administratio rei familiaris, as the Government of his Revenue; and this also he hath upon his Confirmation 
i Evans and Ascough's, Case, Luch. Rep. . The Bishop acts either by his Episcopal Order or by his Episcopal Jurisdiction; By the former he Ordains Deacons and Priests, Dedicates or Consecrates Churches, chapels and Churchyards, administers Confirmation, etc. By the latter he acts as an Ecclesiastical Judge in matters Spiritual, by his Power either Ordinary or Delegated.  
(10.) An. 1430. Temp. Reg. H. 6. Hen. Chicheley Archiepisc. Cant. in Synodo Constitutum est, Ne quis Jurisdictionem Ecclesiasticam exerceret, nisi Juris Civilis aut Canonici gradum aliquem ab Oxoni●nsi vel Cantabrigiensi Academia accepisset. Ant. Brit. fo. 284. nu. 40. The power of the Bishop and Archbishop is derived from the Crown, as was held in Walkers Case against Lamb; where it was also held, That the Grant of a Commissary or Official to one was good, notwithstanding he were a Lay man, and not a Doctor of Law, but only a bachelor of Law; for the Court then said, That the Jurisdiction of the Bishop and Archdeacon is derived from the Crown by usage and prescription; and that in itself, as it is coercive to punish Crimes, or to determine Matrimonial Causes and Probate of Testaments, and granting of Administrations, being Civil Causes are derived from the Crown, and not incident de mero jure to the Bishop, which appears by Henslows Case, par. 9 Cawdry's Case, par. 5. 1 Ed. 6. c. 2. the Stat. of 37 H. 8. and divers other Authorities, and the Statute of 37 H. 8. c. 17. is to that purpose 
k Trin. 8. Car. B. R. Case Walker verse. Lamb, Jones Rep. .  
(11.) In former times many Bishops had their Suffragans, who were also Consecrated, as other Bishops were; These (in the absence of the Bishops upon Embassies, or in multiplicity of business) did supply their places in matter of Orders, but not in Jurisdiction 
l Antiq. B●i●. fo. 22. . These were chief for the ease of the Bishops in the multiplicity of their Affairs, ordained in the Primitive times, called Chorepiscopi, Suffragan, or Subsidiary Bishops, or Bishops Suffragans, and were Titular Bishops, Consecrated by the Archbishop of the Province; and to execute such Power and Authority, and receive such profits as were limited in their Commissions by the Bishops or Diocosans, whose Suffragans they were. What Towns or Places to be the Sees of Bishop's Suffragans, and how many to a diocese, and in what dioceses, appears by an Act of Parliament made in the Reign of King H. 8. Such Suffragan Bishops are made in case the Archbishop, or some other Bishop desire the same; In which case, the Bishop presents Two able persons for any place allowed by the said Act of Parliament, whereof his Majesty doth choose one; but at present there are no Suffragan Bishops in England. They were no other than the Chorepiscopi of the Primitive Times, Subsidiary Bishops, ordained for easing the Diocesan of some part of his burden, as aforesaid: 
Heyl. Hist. Eccles. pag. 294.  by means whereof they were enabled to perform such Offices belonging to that Sacred Function, not limited to time and place by the ancient Canons, by which a Bishop was restrained in some certain Acts of Jurisdiction to his proper diocese. Of these there were twenty six in the Realm of England, distinguished by the Names of such Principal Towns as were appointed for their Title and Denomination. The Names and Number whereof, together with the Jurisdiction and preeminences proportioned to them, the Reader may peruse in the Act of Parliament made An. 26 H. 8.  
(12.) According to the Temporal Laws of this Land, if a Bishop grant Letters of Institution under any other Seal than his Seal of Office, and albeit it be out of his diocese, yet it is good; For in Cort's Case against the Bishop of St. David's and others, where the Plaintiff offered in evidence Letters of Institution, which appeared to be sealed with the Seal of the Bishop of London, because the Bishop of St. David's had not his Seal of Office there, and which Letters were made also out of the diocese; It was held, That they were good enough, albeit they were sealed with another Seal, and made out of the diocese; for that the Seal is not material, it being an Act made of the Institution: And the writing and sealing is but a Testimonial thereof, which may be under any Seal, or in any place. But of that point they would advise 
m Hill. 8 Car. B. R. Rot. 454 Co●t vers. Bishop of St. David's, & alios, Cro. Rep. .  
(13.) A Bishop, if he celebrate Divine Service in any Church of his diocese, may require the Offerings of that day 
n Linw. de jure presbyt. verb. Oblatioris. . He may sequester, if the King present not; and 12 H. 8. 8. by Pollard, he must see the Cure served, if the person fail, at his own Costs 
o Colt & Glover verse. Bp. of Coventry & L●chfield. Hob. Rep. . He may commit Administration, where Executors being called, refuse to prove the Will 
p 4 H. 7. 13. 10 H. 7. 18. 7 E. 4. 12. L●tt. ad Colleg. . He hath power of distribution and disposing of Seats, and charges of Repairs of the Churches within his diocese 
q Case B●o●hly vers. Baily. Hob. Rep. . He may award his Jure Patronatus where a Church is Litigious between an Usurper and the other; but if he will choose the Clerk of either at his peril, he ought at his peril to receive him that hath Right by the Statute 
r Lord Stanhop's Case vers. Bishop of Lincoln. & al. . He may licence Physicians, chirurgeons, Schoolmasters, and Midwives 
* W. 2 cap. 5. . He may Collate by Lapse. He may take competent time to examine the sufficiency and fitness of a Clerk. He may give convenient time to persons interested to take notice of Avoidances. He is discharged against the true Patron, and quit of Disturbance, to whom it cannot be imputed, if he receive that Clerk, that is in pursuance of a Verdict after Inquest in a Jure Patronatus 
s Sr. W. Elvis vers. Archbishop of York and others. H●b. Rep. . He may have Six Chaplains, and every Archbishop may have Eight Chaplains 
t Stat. 21 H. 8. c. 13. . He may unite and consolidate small Parishes; and assist the Civil Magistrate in execution of some Statutes concerning Ecclesiastical Affairs. And by the Statute of 1 Eliz. cap. 2. any Bishop may at his pleasure join and associate himself to the Justices of Oyer and Terminer, or to the Justices of Assize at the open and general Sessions to be holden at any place within his diocese, in Causes of the Church. And the Statute made 17 Car. 1. c. 27. for the disinabling of persons in Holy Orders to exercise Temporal Jurisdiction or Authority, is Repealed by the Statute of 13 Car. 2. cap. 2. whereby they are now enabled to exercise such Temporal Jurisdiction as formerly; and is commonly styled the Ordinary of that diocese, where he doth exercise his Episcopal Authority and Jurisdiction. In Parliament, Bishops, as Barons, may be present and Vote at the Trial and Arraignment of a Peer; only before Sentence of death, or loss of Member, be pronounced, (that they may have no hand in blood in any kind) they have by Canon Law the privilege and Injunction to absent themselves; and by Common Law, to make Proxies to vote for them.  
(14.) ORDINARY, according to the acceptation of the Common Law with us, is usually taken for him that hath Ordinary Jurisdiction in Causes Ecclesiastical 
u Vid. Broc. hoc tit. , immediate to the King. He is in Common understanding the Bishop of the diocese, who is the Supervisor, and for the most part Visitor of all his Churches within his diocese, and hath Ordinary Jurisdiction in all the Causes aforesaid for the doing of Justice within his diocese in jure proprio & non per deputationem, and therefore it is his care to see that the Church be provided of an able Curate, Habet enim Curam Curarum, and may execute the Laws of the Church by Ecclesiastical Censures, and to him alone are made all Presentations to Churches vacant within his diocese. Ordinarius habet locum principaliter in Episcopo, & aliis Superioribus, qui soli sunt Vniversales in suis Jurisdictionibus, sed sunt sub eo alii Ordinarii, high videlicet, quibus Competit Jurisdictio Ordinaria de jure, privilegio, vel consuetudine. Lindw. cap. Exterior. tit. de Constitutionib.  
(15.) The Jurisdiction of the Ordinary or Bishop, as to the Examination of the Clerk, or as to the Admission or Institution of him into a Benefice, is not Local; but it follows the person of the Ordinary or Bishop wheresoever he is: And therefore if a Clerk be presented to the Bishop of Norwich, to a Church which is void within the diocese of Norwich, who is then in London; or if it be to a Bishop of Ireland, who is then in England, and in London; the Ordinary may examine the Clerk, or give him Admission or Institution in London: And so it was adjudged 
c 27 Eliz. C B. in Carter & Crofts Case. Leon. 33. & Pasch. 21 Jac. C. B. in Kn●lly's and Dobbin● Case. 342. Leon. .  
(16.) The Ordinary is not obliged upon a Vacancy to receive the Clerk of him that comes first; for as he may take competent time to examine the sufficiency and fitness of a Clerk: so may he give convenient time to persons interessed, to take knowledge of the Avoidance, even in case of Death, and where notice is to be taken, not given, to present their Clerks to it. And perhaps, if he do receive the Clerk of him that comes first, yet he may quit himself of Disturbance, because he doth nothing therein but as Ordinary in Law. But if two or more Present, so that the Title is become Litigious, then and in such case he cannot receive the Clerk of any▪ of his own pleasure, except the Title be certain, but hath his way of safety by Jure Patronatus; and when he hath used the Jure Patronatus, and that finds for one party, yet he may still receive a contrary Clerk if he will, for who can let him? but that must be at his own peril, and that is at a double peril, (1.) That the Title be the better: (2.) That the Patron, whose Clerk he hath received, will plead and defend that Title; for otherwise he cannot do it. But though after Inquest, in Jure Patronatus, the Ordinary may accept the contrary Clerk, yet it is against Justice and the intent of the Law; For since it is a Provision merely for the good and safety of the Ordinary, and he pretends Doubt, and therefore puts the Patron to this enquiry to his charge and delay to satisfy and secure him, he ought to judge and receive the Clerk according to that Verdict. And that is the true meaning of the Books that say, that the Ordinary is to judge of the better Title, that is, not to prejudge of his own Will, but secundum allegata & probata, upon Verdict of the Right given, and found according to the form of Law, to give Institution which is his judgement, and the Induction his Execution. And though it is but an Inquest of Office, and therefore binds not; True it is, it binds not but with a distinction, that is, it binds not the Patron in his Quare Impedit, but is Final, even to the true Patron, that he cannot impute disturbance to the Ordinary, following that Verdict, and therefore it ought to bind him to follow it. For to these purposes it is a full Verdict, never to be tried again. And if but one Present, if the Ordinary make doubt of his Title, as in many cases he justly may, being a stranger to it, he may require satisfaction by Jure Patronatus 
d Pasch. 17 Jac. Rot. 877. Sr. Will. Elvis vers. Archbishop of York, and others; in Hob. Rep. .  
(17.) If it be demanded, whether the Ordinary can cite a man out of his diocese? the Common Law answers it in the Negative; And so it was held by Jones and Whitlock Justices in Brown's Case, where they held, That at the Common Law a Bishop cannot cite a man out of his diocese; and there Whitlock held, that the Ordinary hath not any power of Jurisdiction out of his diocese, but to absolve a person Excommunicated 
e Brown's Case, Latch. Rep. . If one in N. commit Adultery in another diocese, during the time of his Residence, he may be cited in the diocese where he committed the offence, although he dwell out of the diocese: by Coke, Warburton, and Winch 
* Brownl. p. ●. Cases in Law. . And in the time of his Visitation he hath Jus ad Synodalia, according to the custom more or less, as in Gloucestershire, where the Impropriation of Dereburt pays annually 7s. 9d. pro Synodalibus & Procurationibus; for this Synodal is not in this sense here taken as in the Statute of 25 H. 8. cap. 19 for Synodals' Provincial, which seem to signify the Canons or Constitutions of a Provincial Synod, nor for the Synod itself, which the word Synodale doth sometimes signify; but it is here in the same sense as the word Synodies in the Statute of 34 H. 8. cap. 16. for a Synodal is no other than a Cense or Tribute in money paid to the Bishop or Archdeacon by the inferior Clergy.  
(18.) Every Spiritual person is visitable by the Ordinary 
f Davis 1. Commend. 72. b. . So is a Dean de mero jure, for he is Spiritual 
g D. 10 El. 273. . The Ordinary hath also power of Correction of a Parson 
h 20 H. 6. 46. . And every Hospital, be it Lay or Spiritual, is Visitable 
i Co. 10. Sutton's Hosp. 31. . By the ancient Law of the Realm the King hath power to Visit, reform and correct all Abuses and Enormities in the Church 
k Davis 1. Proxies 4. . Nor are the King's Donatives visitable by the Ordinary 
l Davis 1. D. & C. de Ferns 46. temps E. 6. Br. praemunire 21. ; but properly by the Lord chancellor 
m Davis 1. 46. F. N. B. 42. a. . And the King may grant a Special Commission to that purpose 
n D. 1. 46. . But as to Hospitals, if they be Spiritual, the Ordinary shall visit them; if they be Lay-Hospitals, the Patron 
o Co. 10. Suttons 31. . In the Statute of 1 El. cap. 2. there is a Proviso, That all and singular Archbishops and Bishops, and every of their Chancellors, Commissaries, archdeacon's, and other Ordinaries, having any peculiar Ecclesiastical Jurisdiction, shall have full power and authority by virtue of this Act, as well to inquire in their Visitations, Synods, and elsewhere within their Jurisdiction, or any other time or place, to take occasions and informations of all and every the things abovementioned, done, committed, or perpetrated within the Limits of their Jurisdiction or Authority, and to punish the same by Admonition, Excommunication, Sequestration, or Deprivation, and other Censures and Process in like manner as heretofore hath been used by the Queen's Ecclesiastical Laws. The Ancient custom was for the Visitor to visit in his own person, & visitare Ecclesiatim, per cunctas Dioceses parochiasque suas. 10. q. 1. c. Episcopum E. Concil. Toletan 4. ca 35. This Visitation is a special and peculiar duty belonging to every Bishop, as derived from the Apostles, who themselves were Visitors, and for that end and purpose did pertransire Ecclesias & Vrbes. 
Act. 15 & 16.  The Bishop hath his Triennials, per Archidiaconi Visitatio potest fieri singulis annis. Extr. de Offic. Archid. c. Mandamus. We find also, that Episcopus debet Visitare singulis annis Parochiam, nisi dimittat propter gravamen Ecclesiarum, & 
2. Coke 15. De Spelm. Concil. p. 238.  tunc mittat Archidiaconum, etc. Ab. Sic. super 2. 1. de Offic. Archid. c. ut Archidiaconus 10. q. 1. c. Decrevimus, etc. Episcopum.  
(19) Every Bishop hath his Cathedral and Council, and the Council and Bishop there decide matters of controversy; the prebend's have their names from the affording of help to the Bishop. If any Clerk, 
B●ownl. Rep. par. 1. Mich. 10 Jac. Cases in Law, etc.  after he hath sworn Canonical Obedience, should happen to commit Episcopicide, he is guilty of Petty-Treason, and shall suffer as such. Whereas heretofore the County of Gloucester was a part of the diocese of Worcester, out of which it was taken by King H. 8. when first made a bishopric; the diocese of Worcester was in the time of King Ed 6. laid to the See of Gloucester. Dr. Heylin 's Hist. Eccl. p. 101. Next unto the Two Archbishops, the Bishop of London, of all the other Bishops, hath the pre-eminence. Episcopus Londinensis (says an Ancient Record) speciali quadam Dignitate caeteris anteponendus, quia Ecclesiae Cantuariensis Decanus est Provincialis. The Bishop of Duresme (who is next in precedency) hath been a Count Palatine about six or seven hundred years, and hath at this day the Earldom of Sadberg, long since annexed to this bishopric by the King. Note, a precedent hath been showed at Common Law, That the Bishop of Durham imprisoned one for a Lay-Cause; and the Archbishop of York, as his Sovereign, cited him to appear before him, to answer for that Imprisonment; and the Archbishop was fined four thousand Marks. Cro. par. 1. The Bishop of Winchester was anciently reputed Earl of Southampton: All the other Bishops take place according to the Seniority of their Consecration, unless any Bishop happen to be made Lord Chancellor, Treasurer, Privy Seal, or Secretary of State, which anciently was very usual. All the Bishops of England are Barons and Peers of the Realm, have place in the Upper house of Parliament, as also in the Upper house of Convocation; The bishoprics were erected into Baronies by William the Conqueror at his coming into England, And as a special remark of Honour, Three Kings, viz. of England, Scotland, and South-Wales, in the year 1200. did contribute their Royal shoulders for the conveyance of the deceased corpse of Hugh, Bishop of Lincoln to his Grave. And no wonder, when Princes themselves, and such as were of the Blood Royal were anciently Bishops in this Kingdom; they have been not only of the best Nobility, but divers of the Sons and Brothers of several English Kings since the Conquest and before, have entered into Holy Orders and became ecclesiastics, as at this day is practicable in the most of all other Monarchies throughout the whole Christian World. Ethelwolph, Son and Successor to Egbert, first Sole King of England, was in Holy Orders, and Bishop of Winchester at his father's death. Odo, Brother to William the Conqueror was Bishop of Bayeux in Normandy. Henry de Blois, Brother to King Stephen, was Bishop of Winchester. Geofry Plantagenet, Son to King Henry the Second, was Bishop of Lincoln. And Henry de Beauford, Brother to King Henry the Fourth, was Bishop also of Winchester.  
(20.) The Statute of 17 Car. 1. cap. 27. for disinabling persons in Holy Orders to exercise Temporal Jurisdiction or Authority, being Repealed (as aforesaid) by the Statute of 13 Car. 2. cap. 2. they are thereby restored to the exercise of Temporal Jurisdiction as formerly; which indeed is no more than what they ever Anciently exercised in this Kingdom; For, Ex Clero Rex semper sibi eligebat Primos à Consiliis, Primos ad Officia Regni obeunda. Primi igitur sedebant in omnibus Regni Comitiis & Tribunalibus Episcopi, in Regali quidem Palatio cum Regni Magnatibus, in Comitatu una cum Comite, in Turno cum vicecomite, & in Hundredo cum Domino Hundredi, sic ut in promovenda Justitia usquequaque gladii gladium adjuvaret, & nihil inconsulto Sacerdote vel Episcopo ageretur. This Union of Persons, Authority, and Courts of Judicature, Ecclesiastical and Civil, 
Selden, lib. 2. de Synedrits.  (as Mr. Selden proves) continued above Four thousand years, till Pope Nicholas the First, about the Eighth Century, to exclude the Emperor from meddling in the Ecclesiastical Government, began to exclude the Clergy from meddling with the Civil. And for the space of four or five hundred years, during the Reign of the Saxon Kings in England, 
Vid. Grat. Dist. c. Cum ad ve●um.  the Ecclesiastical and Secular Magistrates sat jointly together, determining Ecclesiastical Affairs in the Morning, and Secular or Civil Affairs in the Afternoon; so that in those days, as there was no clashing of Jurisdictions, so no complaint touching Prohibitions, but an unanimous harmony in a kind of Joynt-Jurisdiction in reference to all Ecclesiastical and Civil Affairs, until William the Conqueror, did put a distinction between Church and State, in a more divided way than formerly had been practised. Also the excellent Laws made by King Ina, King Athelstan, King Edmund, and St. Edward the Confessor, from whom we have our Common Laws, and our privileges mentioned in Magna Charta, were all made by the persuasions and advice of Archbishops and Bishops, named in our Histories.  
(21.) That which during the Reign of King Edw. 6. made the greatest alteration, and threatened most danger to the State Ecclesiastical, was the Act entitled, An Act for Election, and what Seals and Styles shall be used by Spiritual persons, etc. In which it was ordained, That Bishops should be made by the King's Letters Patents, and not by the Election of the Deans and Chapters: That all their Processes and Writings should be made in the Kings Name only, with the Bishop's Teste added to it; and sealed with no other Seal than the Kings, or such as should be Authorized and Appointed by him. In the compounding of which Act there was more danger (as Dr. Heylin observes) couched, than at first appeared. For by the last Branch thereof it was plain and evident (says he) that the intent of the Contrivers was, by degrees to weaken the Authority of the Episcopal Order, by forcing them from their strong hold of Divine Institution, and making them no other than the King's Ministers only, or as it were, his Ecclesiastical Sheriffs, to execute his Will, and disperse his Mandates. And of this Act such use was made (though possibly beyond the true intention of it) that (as the said Dr. Heylin observes) the Bishops of those Times were not in a Capacity of conferring Orders, but as they were thereunto empowered by special licence. The tenor whereof (if Sanders be to be believed) was in these words following: viz. The King to such a Bishop Greeting. Whereas all and all manner of Jurisdiction, as well Ecclesiastical as Civil, flows from the King as from the supreme Head of all the Body, etc. We therefore give and grant to thee full power and licence, to continue during our good pleasure, for holding Ordination within thy diocese of N. and for promoting fit persons unto Holy Orders, even to that of the Priesthood. Which being looked on by Queen Mary, not only as a dangerous diminution of the Episcopal Power, but as an odious Innovation in the Church of Christ; she caused this Act to be Repealed in the first year of her Reign, leaving the Bishops to depend on their former claim, and to act all things which belonged to their Jurisdiction in their own Names, and under their own Seals, as in former times. In which estate they have continued without any Legal Interruption, from that time to this. But (says the same Author) in the First Branch there was somewhat more than what appeared at the first sight: For, though it seemed to aim at nothing, but that the Bishops should depend wholly on the King for their preferment to those great and eminent places; yet the true drift of the Design was, to make Deans and Chapters useless for the time to come, and thereby to prepare them for a Dissolution. For, had nothing else been intended in it, but that the King should have the sole Nomination of all the Bishops in his Kingdoms, it had been only a reviver of an Ancient power, which had been formerly invested in his Predecessors▪ and in all other Christian Princes. If we consult the Records of elder Times, it will readily appear, not only that the Roman Emperors of the House of France did Nominate the Popes themselves; but that, after they had lost that power, they retained the Nomination of the Bishops in their own Dominions. The like done also by the Germane Emperors, 
Dr. Heylin, Hist. Eccl. de Temp. Ed 6. p. 51, 52.  by the Kings of England, and by the Ancient Kings of Spain: The Investure being then performed per Annulum & Baculum, that is, by delivering of a Ring, together with a Crosier or Pastoral Staff to the party nominated.  
(22.) By Ancient Right the Bishops of London are accounted Deans of the Episcopal college; and being such, are by their place to signify the pleasure of their Metropolitan to all the Bishops of the Province, to execute his Mandates, and disperse his Missives, on all emergency of Affairs: 
Ibid. p 54, 55.  As also to preside in Convocations, or Provincial Synods, during the vacancy of the See, or in the necessary absence of the Metropolitan.  
(23.) 
Mich. 17 Jac. Br. Revan O Brian and others, and Knivans case. Cro. par. 2.  In O Brian and Knivan's Case, the Case was, That King Ed. 6. under his Privy Seal signified to Sir J. C. and to the Lord Chancellor, and others in Ireland; That he elected and appointed J. B. to be Bishop of Ossory: Requiring them to install him in the bishopric. The Deputy being removed, the Chancellor and the other made a Commission under the Great Seal of Ireland to the Bishop of Dublin to Consecrate him; which was done accordingly, and he did his Fealty, and recovered the Temporalties out of the King's hands. Afterwards in the life of J. B. Queen Mary elected J. T. to be Bishop there: who was likewise Consecrated, and who made a Lease of divers Lands of the bishopric for 101 years, which was confirmed by the Dean and Chapter. J. B. died; and after J. T. died J. W. was elected Bishop. The Questions in the Case were, (1.) Whether J. B. was well created Bishop? (2.) Whether this Lease made by J. T. being Bishop de facto, but not the jure in the life of J. B. he surviving J. B. should be good to bind the Successor. Resolved, The Commission was well executed, although the Deputy Sir J. C. were removed. (2.) Resolved, That before the Statute of 2 Eliz. the King might by Patent without a Writ of Congé d'eslire create a Bishop, for that was but a Form or Ceremony. (3.) Resolved, That although J. T. was Bishop de facto in the life of J. B. that the Lease made by him for 101 years was void, though it was confirmed by the Dean and Chapter, and should not bind the Successor: But all Judicial Acts made by him, as Admissions, Institutions, etc. should be good; but not such voluntary Acts as tended to the depauperation of the Successor. 
Mich. 3 Car. C. B. Owen and Tho. Ap rees Case. Cro. par. 3.   
A Bishop made a Lease for three Lives, not warranted by the Statute of 1 Eliz. rendering Rent; the Successor accepted the Rent. It was Resolved, It should bind him during his time, so as he shall not avoid the Lease, which otherwise was voidable.   

CHAP. iu.  
Of the Guardian of the Spiritualties.  

1. What the Office of such a Guardian is, and by whom Constituted.  
2. The power of such Guardians in vacancy of archbishoprics.  
3. What Remedy in case they refuse to grant such Licenses or Dispensations, as are legally grantable.  
4. Who is Guardian of the Spiritualties, of Common Right.  
5. What things a Guardian of the Spiritualties may do.   
(1.) Guardian of the Spiritualties (Custos Spiritualium, vel Spiritualitatis) is he to whom the Spiritual Jurisdiction of any diocese (during the vacancy of the See) is committed 
a Vid. St. 25▪ H. 8. c. 21. & 13 Eliz. c. 12. . Dr. cowel conceives, that the Guardian of the Spiritualties, may be either Guardian in Law, or Jure Magistratus (as the Archbishop is of any diocese within his Province) or Guardian by Delegation, as he whom the Archbishop or Vicar General doth for the time depute. Guardian of, etc. by the Canon Law pertains to the Appointment of the Dean and Chapter. c. ad abolend. Extr. Nè sede vacante aliquid innovetur: But with us in England, to the Archbishop of the Province by Prescription. Howbeit (according to Mr. Gwin in the Preface to his Readins.) divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm. cowel verb. Custos. This Ecclesiastical Office is specially in request, and indeed necessarily in the time of the Vacancy of the Episcopal See, or when the Bishop is in remotis agendis about the public Affairs of the King or State; at which time Presentations must be made to the Guardian of the Spiritualties, which commonly is the Dean and Chapter: or unto the Vicar General, who supplies the place and room of the Bishop 
b Co. 1. par. In●tit acc. . And therefore if a man Recover, and have judgement for him in a Quare Impedit, and afterwards the Bishop (who is the Ordinary) dieth. In this case the Writ to admit the Clerk to the Benefice must be directed to the Guardian of the Spiritualties, Seed vacant, to give him Admission: But if before his Admission another be created Bishop of that See, and Consecrated Bishop; in that case the power of the Guardian of the Spiritualties doth cease, and the party may have a new Writ to the new Bishop to admit his Clerk 
c 18 Eliz. Dyer 35●. . A Guardian of the Spiritualties may admit a Clerk, but he cannot confirm a Lease 
* Case Evans and Ascough. Latch. Rep●. .  
(2.) The Guardian of the Spiritualties takes place as well in the vacancy of archbishoprics as bishoprics, and hath power of granting Licenses, Dispensations, and the like, during such Vacancies, by the Statute of 25 H. 8. whereby it is provided and enacted, That if it happen the See of the Archbishop of Canterbury to be void, that then all such Licenses, Dispensations, Faculties, Instruments, Rescripts, and other Writings which may be granted by virtue of the said Act, shall (during such vacation of the said See) be had, done, and granted under the Name and Seal of the Guardian of the Spiritualties of the said archbishopric, according to the tenor and form of the said Act, and shall be of like force, value and effect, as if they had been granted under the Name and Seal of the Archbishop for the time being. Where it is also further enacted,  
(3.) That if the said Guardian of the Spiritualties shall refuse to grant such Licenses, Dispensations, Faculties, etc. to any person that ought upon a good, just, and reasonable cause to have the same, then and in such case the Lord Chancellor of England, or the Lord Keeper of the Great Seal, upon any complaint thereof made, may direct the Kings Writ to the said Guardian of the Spiritualties, (during such Vacancy as aforesaid) refusing to grant such Licenses, etc. enjoining him by the said Writ, under a certain penalty therein limited at the discretion of the said Lord Chancellor or Lord Keeper, that he shall in due form grant such Licence, Dispensation, Faculty, etc. according to the request of the Procurers of the same, or signify into Chancery by a day certain, for what cause he refused to grant the same: where, if upon such Certificate it shall appear, that the cause of such Refusal was reasonable, just, and good, that then it shall be admitted and allowed; otherwise, there may issue thence by virtue of the said Statute a Writ of Injunction, commanding the said Guardian of the Spiritualties, so refusing as aforesaid, to make sufficient grant of such Licence, Dispensation, etc. by a certain day; and if after the receipt of such Writ, the Guardian of the Spiritualties shall yet refuse to grant the same, and show no just or reasonable cause for so doing, that then and in such case the said Guardian of the Spiritualties shall incur such penalty to his Majesty, as shall be limited and expressed in the said Writ of Injunction; And moreover in such case, a Commission under the Great Seal may issue to Two Spiritual Prelates or persons to be nominated by his Majesty, authorising them to grant such Licenses, Faculties, and Dispensations, as were so refused to be granted by the Guardian of the Spiritualties, as aforesaid: And what in this case is here enjoined to the Guardian of the Spiritualties during the vacancy of the archbishopric, is likewise expressly by the said Statute to the Archbishop himself in time of Plenarty or Non-vacancy of the See.  
(4.) Of the Metropolitan, the Dean and Chapter is of Common right the Guardian of the Spiritualties: Of inferior bishoprics in times of Vacation, the Dean and Chapter of the See is of Common right the Guardian of the Spiritualties, and not the Metropolitan 
d Contra 31 H. 6. 10. admit. Dub. 17 E. 3. 23. b. where it is said, per Stou●. that in the time of R. 1. and ever before, the Metropolitan was Guardian till the time of H 3 etc. Roll. Abr. ver▪ Prerogative, lit. 5. . Yet 5 E. 2. Quare impedit, 165. Admit. that during the vacancy of the bishopric of Durham, the Archbishop of York is Guardian of the Spiritualties. And 23 E. 1. Rot. Claus. Memb. 4. the Prior of Christ-Church in Canterbury was Guardian of the Spiritualties in time of vacation of the archbishopric. Of which archbishopric the Dean and Chapter is Guardian of the Spiritualties in the time of vacancy. Also of the archbishopric of York, the Dean and Chapter is Guardian of the Spiritualties in the vacancy thereof, and not the Archbishop of Canterbury, for that it is a distinct Province, not subordinate to, etc. contra 31 H. 6. 10. Admit. for there a Parson of the Province of York had aid of the Metropolitan Guardian of the Spiritualties of the archbishopric of York in time of vacancy of that archbishopric 
e rol. Abr. ibid. .  
In the Case of Grange against Denny it was said by Coke, That of common Right, 
Mich. 13 Jac. B. R. Rot. 165. Grange verse. Denny. Bulstr. Rep.  by the Common Law, the Dean and Chapter, Seed vacant, of the Bishop, is Guardian of the Spiritualties, as appears by Pasch. 17 E. 3. fo. 23. but that now the Archbishops have used to have this by way of Composition. And in the same Case it was said by Doderidge, That every Archbishop hath a diocese and a Province, and of his diocese he is a Bishop, and of his Province he is Archbishop, and within his Province he is to be Visitor of all the Churches within his Province; and Sede vacant of any Bishop within his Province he himself is Guardian of the Spiritualties, of all the bishoprics within his Province: but Sede vacant of his own diocese, the Dean and Chapter of this is Guardian of the Spiritualties; and that no mention is made in the Books of the Common Law of any such Composition aforesaid, but that the Guardian of the Spiritualties is to be according to the difference before put, between a Province and a diocese.  
5. The Learned sergeant Roll in his abridgement doth acquaint us out of the Ancient Books, That a Guardian of the Spiritualties may Admit and Institute a Clerk presented to him 
f 17 E. 3. 23. . That the King did present to the Guardian of the Spiritualties of the archbishopric of Dublin (seed vacant) for a Church in Ireland 
g 2 E. 1. Rot. Pat. Memb 5. . That the Guardian of the Spiritualties may try Bastardy 
h 41 Ass. 29. adjudged. . That Letters were directed to all the Bishops, and (in the Vacancy) to the Guardian of the Spiritualties, to make Prayers for the King in his Journey in France 
i 27 E. 1▪ Rotsie Clauso Memb. 11. Dorso. . And that the Prior of Christ-Church in Canterbury, Guardian of the Spiritualties during the Vacancy of that archbishopric, had a Felon delivered to him 
k 23 E. 1. Rot. Clauso Memb. 4. . But in the time of the Vacancy of the Bishop, the Archbishop is Guardian of the Spiritualties, and not the Dean and Chapter 
l Br●wnl. Rep. p● 1. M●ch. 1st Jac. Cases in Law, etc. .   

CHAP. V.  
Of Congé d'Eslire, Election, and Confirmation.  

1. What Congé d'Eslire signifies; the Original thereof.  
2. To whom it is directed, and the manner of proceed thereupon, and of Election.  
3. Confirmation of Bishops, the form or manner thereof.  
4. Confirmation in a Temporal, not Spiritual sense, what?  
5. The Confirmation of Bishop's Elect beyond Sea, far different from this in England.  
6. The Law and Practice in France, touching the making of Bishops.   
(1.) COngé d'Eslire, in French, [Leave to choose] is the King's permission to a Dean and Chapter to choose a Bishop in the time of Vacancy 
a F. N. B. 169. Term. Leg. . And time was when this Venia Eligendi was also the permission Royal to an abbey or Priory of his own Foundation to choose their Abbot or Prior 
b Ibid. B. & 170 B, C, etc. . But we now understand it under no other signification than as his Majesties leave vouchsafed to a Dean and Chapter to elect a certain person to succeed as Bishop of that diocese, whose Episcopal See is vacant. For the better interpretation of this Congé d'Eslire, the Modern Pens refer themselves to Mr. Guin in the Preface to his Readins, where he saith. The the King of England, as Sovereign Patron of all archbishoprics, bishoprics, and other Ecclesiastical Benefices, had of Ancient time free Appointment of all Ecclesiastical Dignities,, whensoever they happened to be void: Investing them first Per Baculum & Annulum, and afterwards by his Letters Patents: And that in process of time he made the Election over to others, under certain Forms and Conditions, viz. That they should at every Vacation before they choose, desire of the King Congé d'Eslire, that is, Leave or licence to proceed to Election, and then after the Election to crave the Royal Assent, etc. He affirmeth also by good proof, out of the Books of the Common Law, that King John was the first that granted this; and that afterwards it was confirmed by Westminster 1. cap. 1. which Statute was made An. 3. Ed. 1. And again by the Statute [Articuli Cleri] cap. 2. which was Ordained, An. 25. Ed. 3. Stat. 3. it is generally agreed, That the Kings of this Realm were originally the Founders of all archbishoprics and bishoprics within this Kingdom, being at first Donative per traditionem Baculi Pastoralis & Annuli: But afterwards King John by his Chapter, 15 Jan. in the seventh year of his Reign, De Communi consensu Baronum, granted that they should ever after be eligible. And from that time came in the Congé d'Eslire. Vid. Co. 5. par. 14. in Candry's Case. vid. Stat. 1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40.  
(2.) The Congé d'Eslire being granted to the Dean and Chapter, they proceed accordingly to Election, which in the sense here intended, as appropriated to this Subject, is that Regular Choice, which is made of an Ecclesiastical person to succeed in the office and dignity of Bishop, in, and of that diocese, whose See at the time of such Election is vacant. This Election referring to an Episcopacy, or the choice of a new Bishop in a vacant See, is done by a Dean and Chapter; but there are also other Elections Ecclesiastical relating to a Regular choice of other persons to other Offices and Dignities in the Church, subordinate to the former; but here it is specially meant of such an Election or choice of a new Bishop, as is precedent to Confirmation, Consecration, and Investure or Instalment, being made (as aforesaid) by the Dean and Chapter of a Cathedral Church, by virtue of the King's licence and Letters Missive, according to his majesty's nomination and pleasure, contained in such Letters Missive, in pursuance of such licence to Elect, under the Great Seal of England; which Election being made accordingly, the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majesty. This Election alone and of itself, be it to an archbishopric or bishopric, if the person Elected were before the Parson or Vicar of any Church Presentative, or Dean of any Cathedral, or held any other Episcopal Dignity, doth not ipso facto make void in Law such former Benefice, or Dignity, or deanery, because he is not complete and absolute Bishop merely by such Election, but only Bishop Elect; And an Election only of such one to a bishopric, who had before a Benefice with Cure, or any other Ecclesiastical Dignity or promotion, doth not make a session thereof 
c 20 Ed. 3. Fitz. tit. Brief. 25. . And it hath been adjudged, that a Commendam retinere made to such a person of such a Parsonage, deanery, or other dignity Ecclesiastical, which the said Parson had before his Election to the bishopric, is yet good to him notwithstanding such Election, and so remains good to him until his Consecration 
d Trin. 11 Jac. C. B. in Colt, and the Bishop of Coventry and Lichfield. Hob. Rep. & Evans and Ascough● Case, L●tch. Rep. .  
(3.) Confirmation hath various senses according to the different Acceptation of the word; but here it is mainly intended for that, which in order to an Investure of a Bishop, is done by the Archbishop or Metropolitan of that Province in which a bishopric is void, and unto which a new Bishop is to be Invested, with such usual Benedictions and Ceremonies as are requisite to the same 
e Vid. Stat. ● 25 H. 8. cap. 20. . Note, That before an Archbishop or other Bishop is Confirmed, Consecrated, or Invested, he must take the Oath of Fealty unto the King's Majesty only, after which the King under his Great Seal doth signify his Election to one Archbishop and two other Bishops, otherwise unto four Bishops within his majesty's Dominions, thereby requiring them to Confirm his Election, and to Consecrate and Invest the person Elected. After which Confirmation and Consecration he is complete Bishop to all intents and purposes, as well to Temporalties as Spiritualties. And now he hath plenam potestatem tam Jurisdictionis quam Ordinis; and may therefore after his Consecration certify an Excommengment; and upon his Confirmation the power of the Guardian of the Spiritualties doth cease 
f 18 Eliz. Dyer 350. , and a Writ for Admission of a Clerk to a Benefice, awarded Episcopo Electo & Confirmato, hath been held to be good 
g 22 E. 3. 13. . Likewise the King may by his Letters Patents, after such Confirmation and before Consecration, grant unto such Bishop his Temporalties 
h 41 E. 3. 6. & 46 E. 3. 22. , which Grant from his Majesty is held to be potius de gratia quam de jure; but if the Bishop of one diocese be translated to a bishopric in another, there needs no new Confirmation of him. In the Canon [de Confirmatione Episcoporum] of Othobon's Constitutions, it is Ordained in haec verba, viz. Vt cujus Electionis Episcopalis Confirmatio postulatur, inter caetera super quibus Inquisitio & Examinatio praecedere debet Secundum Canonum Instituta: 
Ot●o●on. de Confirm. Epist. cap▪ unic.  illud exactissime inquiratur, utrum plura Beneficia cum animarum cura, qui Electus est, antequam eligeretur, habuerit: Et si habuisse inveniatur, an cum eo super hoc fuerit dispensatum: Et an Dispensatio, si quam exhibuerit, vera sit, & ad omnia beneficia, quae obtinuit, extendatur. Et si in aliquo Praemissorum, is ad quem Confirmatio spectat Electam deficere sua discussione compererit: eidem nullatenus munus Confirmationis impendat.  
(4.) There is also Confirmation of another kind, and far remote in sense from the former, not of any Ecclesiastical consideration, nor of any Affinity with the other, otherwise than Nominal, and that is the ratifying or confirming of an Office, or an estate in a Place or Office, to one who hath or formerly had the possession thereof by a good Title, but voidable, though not actually and at present void. To explain this; A Bishop grants his Chancellorship by Patent to one for term of his Natural life: this Grant is good to the Patentee, and not in itself void; yet upon the Bishop's death it is voidable, unless it be corroborated and ratified by the Confirmation of the Dean and Chapter 
i West. Symb. par. 1. lib. 2. Sect. 300. F. N. B▪ fo. 169. b. 226. 〈◊〉. 271. d. 162 〈◊〉 Litt. lib. 3. c. ●●. . This is not the Confirmation here intended, but the Confirmation of the Election of a new Bishop in order to his Consecration and Investure; which though heretofore was by the Bishop of Rome, when he claimed a Spiritual Jurisdiction in this Realm; yet now since the Stat. of 25 H. 8. c. 20. the same is at his Majesties Command performed by the Archbishop or Metropolitan of the Province wherein such bishopric is void, and two other Bishops, otherwise by four such Bishops within his majesty's Dominions, as to whom under his Broad Seal he shall signify such Election, commanding them to Confirm the same, as also to Consecrate and Invest the person whose Election to the bishopric is so Confirmed as aforesaid.  
(5.) The Confirmation of the Election of Bishops to vacant Sees according to the Canon Law, and as practised in such Kingdoms beyond Sea, where the Pope doth claim and exercise a Spiritual Jurisdiction, is, as to the mode and solemnity thereof, quite another thing to what the practice is with us in this Realm.  
(6.) In France, though the Nomination of a Bishop to succeed in a vacant See belongs to the French King, yet if he doth not Nominate within Six or Nine months' next after the death of the former Bishop, Jus devolutum est ad Papam 
k Cap. ne pro defect● de Elect. c. 2. 〈◊〉 concess. Pr●●bend. & in Sect. 1. de Regia N●m●na. Pet. Rebuss. Respons. 14. ; if a bishopric be there void, be it quomodocunque, whether by session or otherwise, the Law speaks indefinitely in that case, the King shall Nominate in France who shall be the new Bishop; but then he must Nominate within Six or Nine months, which being Elapsed and no Nomination, he cannot afterwards Nominate, Name jus sit ad Papam dev●lutum: nec poterit purgare moram 
l Gloss. & D D. in dict. cap. 2. the concess. Praebend● . For the Law in that Case and in that Kingdom is, that Nominatione non facta intra Sex menses, devolvitur Nominatio & plena Dispositio Episcopatus ad Papam. As also appears in that remarkable Case controverted touching the Confirmation of the Election, Ad Episcopatum Appamiarum; For upon the death of Cardinal de Albret, An. 1520. 10. Dec. that bishopric became void; whereupon the Canons of that Church convened, and proceeded to the Election of a new Bishop, and chose D. Bernard de Lordat, who being elected, applied himself Archiepiscopo Tholosano, tanquam suo Metropolitano, saltem Vicariis suis, for the Confirmation of his Election, which was done accordingly; to which Confirmation the Procurator Regius was not called, who appealed from the said Election and Confirmation, alleging that the Nomination to the bishopric belonged to the King, who Nominated D. John de Puis to the Pope; whereupon the Pope granted the said bishopric to the said John de Puis, who by the Bulls and Proxies of the Pope took possession thereof. From all which Appeal was again afterwards in Supremam Curiam, between De 〈◊〉 and Lordat; but De Puis obtaining another bishopric, the Process on the Appeal was Extinct, and Lordat by a Definitive, had the Possession of the said bishopric Confirmed to him 
m Rebu●●. ubi supr▪ .   

CHAP. vi  
Of Consecration▪  

1. What Consecration signifies; the Ancient Rites and Ceremonies thereof under the Law; who they were to whom it belonged.  
2. Consecration, as specially Applicable to Bishops.  
3. An Ancient Canon touching the Consecration of Churches.  
4. The Form of Consecration of Churches by the Justinian Law, the Rites and Ceremonies therein used by the Greek and Latin Churches.  
5. Consecration of Bishops how necessary by the Imperial Law, Consonant to the practice of the Greek and Latin Churches.  
6. Consecration of Bishops is Character Indelebilis at the Common Law.  
7. Who first Consecrated Churches; who first took the style of Pope; The Original of Godfathers and Godmothers in Baptism.  
8. In case of Translations of Bishops no need of new Consecrations; Requisites to Creation and Translation of Bishops according to the Common Law of England.   
1. CONSECRATION here chief refers either to Bishops or Churches: The Civil as well as Canon Law takes notice of both 
a ●. 3. si quando, C. de Bon. vac. & 24. q. 1. c. Pudenda, & Jul. Patric. in Version. Nou. 6. . It signifies a Dedication to God; Justinian in his novels makes use of the word, thereby signifying an Imposition of hands 
b dict. Nou. 6. : For in this manner (says that Book of great Antiquity, entitled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉) began Bishops to be Consecrated. It is a kind of Separation of persons Ec●csiastical from the Laity, and of things Sacred from profane, for the especial use and service of God. The word in the Hebrew signifies a Filling of the hand, thereby intimating that under the Law in the Consecration of any, there was a giving them or Putting into their hands things to offer, whereby they were admitted to their Priestly Office 
c Exod. 29. 9 . In this Consecration the holy Unction was used, or the holy oil or holy Ointment, which was not to be applied to any profane or Civil use, but to be appropiated to the Sons of Aaron; only whereas Kings were and are to be Anointed, that is to be understood, as by especial command from God 
d 1 King. 19 15, 16. & 1 King. 1. 39 & 1 Sam. 16. 12. Psal. 89. 20. , as an Exception to the Sacerdotal practice, and as a Consecrating them to the Government; in relation whereto a King is a mixed person under a double capacity, Ecclesiastical and Civil, as next under God the supreme in Church and State within his own Dominions. And although under the Levitical Law there was an Anointing oil common to the High Priest with the inferior Priests 
e Exod. 29. 20. ; yet the High Priest had a Consecration peculiar to himself, which was by the pouring out the precious ointment upon his head 
f leu. 8. 12. Exod. 29. 7. Psal. 133. 2. . In imitation whereof are Kings at this day anointed to the Regal Authority.  
(2.) The import of this word [Consecration] as practicable in all Ages, specially refers to Archbishops and Bishops, and with us consists in certain Benedictions and Ceremonies peculiarly requisite thereunto; And when after Election and Confirmation the person is Consecrated and Invested, he is then complete Bishop, as well to Temporalties as Spiritualties, and then the power of the Guardian of the Spiritualties doth cease. Being Consecrated he may confer Holy Orders upon others, and may Consecrate Churches and chapels, which before he could not. Anselm Archbishop of Canterbury deprived divers Prelates for receiving Investure of King H. 1. but after they were restored ex gratia. Speed 436. The Roman Synod made a Cannon, that Investure belongs to the Pope; yet H. 1. used to give Investure, as he did to Ralph, Archbishop of Canterbury. Sp. 440. b.  
(3.) Touching the Consecration of Churches, the Learned Sir H. Spelman makes mention of a very Ancient Canon made by the Synod held at Celichyth, 
Celichyth.  in the year 816. under Wulfred Archbishop of Canterbury, and precedent of the said Synod, Kenulph King of Morcia being threat also personally present; The Canon is to this purpose, viz. Wherever a Church is built or erected, let it be Sanctified by the Bishop of the proper diocese: Let it have a Benediction from himself, and be sprinkled with Holy Water, and so be made a complete Church, in such manner as is prescribed in the Ministerial Book. Afterwards, let the Eucharist, which is Consecrated by the same Bishop, be together with other relics reposited and laid up in a Chest, and kept and preserved in the same Church. And we Ordain and Command, that every Bishop take care that the Saints, to whom their Churches are dedicated respectively, be painted on the Church-walls, or in Tables, or on the Altars 
g Spelm. Consil. Synod. Celichyth. Can. 2. .  
4. The Emperor Justinian in his care of the Church, hath prescirbed a Form of Consecration thereof in this manner, viz. his Law is, That none shall presume to erect a Church, until the Bishop of the diocese hath been first acquainted therewith, and shall come the lift up his hands to Heaven, and Consecrate the place to God by Prayer: and erect the symbol of our Salvation, viz. the venerable and truly precioas Rood 
h Auth. de Monach. §. illud igitur. Coll. 1. vid. novel. 123, 131. . Likewise among other Ceremonies of Consecrating Churches, the laying of the first Stone was of Ancient use in the Greek Church, as may be observed out of their Euchologue, where it is said, That the Bishop, after some other Rites performed, standing in the place where the Holy Altar shall be set, saith certain Prayers, which being ended, he giveth tho Ite Missa est, and then taketh up one of the Stones, and having cut a Cross upon it, himself with his own hands layeth it upon the Groundwork, as the first Foundation-stone; then be pronounceth the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, etc. and so the Workmen begin the Building. The like Ceremonies are used in the Latin Church at this day at the Consecration of Churches, as appears by their Pontificale 
i Pontificale, pag. 281. per Clement. 8. An. 5565.  There is this further touching the Consecration of Churches in the Euchologue of the Greek Church, That the Bishop having on his Formilities, fumeth the groundwork or Foundation with his jacense Circular-wise, than the Singing-men say a kind of Collect for the Saint to whose Name the Church is Dedicated, and some other Services as the chanter shall appoint. So that although the Patron might choose the Ground, yet the Prelate was to come and Consecrate it; the Patron might bring the Stones, but the Bishop laid the Foundation; the Workmen might with the Materials make a House, but the Bishop by Consecration made it a Church; It was but the dead body of a Temple, till it received the being of a Church by the influence of the Diocesan. Thence it was that the privilege of a new Church followed not the Building, but the Consecration thereof, as was well observed by that Devout and Learned King Alured in the fifth Canon of his Ecclesiastical Laws, where he saith That if a man pursued by his Enemy fly to the Temple, no man shall thence take him away for the space of seven days; which Law was yet made under a Caution, That this freedom shall not be granted to any Church, but such as shall be Consecrated by the Bishop.  
(5.) Consecration relating to the person, office, and dignity of a Bishop (as in the former part of this Chapter) was by the Imperial Law so necessary to the making him a Bishop complete, as that without it his Election and Confirmation would not have entitled him to any Church that should be new erected within his diocese, whereunto he being Consecrated, had a right and Title; as is evident not only by the Emperor's Novel, but also more peculiarly acknowledged by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, or the setting up of the Cross behind the Altar when he made the Consecration. Thus the Eucholgue for the Greek Church. The like also is observed in the Latin, where the Ceremonies are more tedious and elaborate. By the setting up of the said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the Right of the new Church was conveyed to the Patriarch or Bishop as by an especial Title, and that not only by the Euchologue in the Greek, but also by the Emperor's Novel in the Latin Church: Concerning which Right and the Conveyance thereof by the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Observable to this purpose is that Synodical Sentence given by Germanus, Patriarch of Constantinople, against John Archbishop of Lepanto, touching certain Episcopal Monasteries, whereon he had illegally fixed his Cross under pretence of a Right to the same 
k Jus Graec. Lat. To. 1. Synod. 1. 232, 233, etc.   
(6.) This Consecration, specially as it refers to Bishops, is Character indelebilis, insomuch that although it should so happen, that for some just cause he should be deposed or removed from the See, or suspended ab Officio & Beneficio, both from his Spiritual Jurisdiction, as to the exercise and execution thereof, as also from the Temporalties and profits of the bishopric; yet he still retains the Title of a Bishop, for that it is supposed the Order itself cannot absolutely be taken from him 
l 21 H. 6. 3. by Markham.  King H. 1. banished Thurstan, Archbishop of York, for five years, for receiving Consecration from the Pope. Speed 440. b. 458. b.  
(7.) It appears by good Chronology, that the first that ever Consecrated Churches was Euginus, who was a Greek, and Priest of Rome, and was the first that ever styled himself Pope, An. 154. who wrote de Trinitate & Vnitate Dei. He was the first that Decreed, that Churches should be Consecrated, with the consent of the Metropolitan or Bishop; and that there should be one godfather, and one Godmother at Baptism 
m Plat. Berg. Chrisp. Isaac's. Sat. Ephem.   
(8.) In a Case of Translation the Bishop need not to be Consecrated de Novo, as in case of Creation 
n Case Evans & Ascough. Latch. Rep.  Anciently and according to the Canon Law, and where the Pope's Spiritual power and authority was in force, Bishops were not so much by Election as by Postulation, and then the saying was Electus Postulando, & Postulatus obligando; and in that case the Elected was a Bishop presently, without either Confirmation or Consecration, only by the Assent of the superior 
o Sum. Rosell. Postulation, & ut. Si quis Panorm. 2. p. 100  Before Consecration the Bishop hath not actual possession, although he hath a Freehold in Law after Consecration: But in case of Translation there is not any new Election, nor may the Dean and Chapter pray a Congé d'Estire; but they signify to the King how their bishopric is void, & ideo humilime Postulamus Humbricensem Episcopum fore Episcopum nostrum, and that is called, Postulation; and than if the King grant it, he is the Bishop. Trin. 21 Jac. B. R. Sir Jo. Vaughan's Case verse. Ascough, Roll. Rep. Postulatio est alicujus personae ad dignitatem, vel Societatem Fraternam, Canonica facta vocatio: vel est personae, quae eligi non potest, ad eligendum petitio. Cap. innotuit, §. habito. de Elect. The Bishop of St. P. was chosen Bishop of Trevers, and had the assent of the Pope, and when he came there he found another in possession; whereupon he would have returned to his former bishopric, but could not, because it was void before by the consent of the superior. And in the Case of Evans and Ascough, it was said, That a Bishop hath been Summoned to Parliament before by Confirmation; but, as Jones there said, That was after his Possessions or Temporalties were restored to him. And Caltheep there said, That in the Case of Translation of a Bishop there are five things to be performed, 1. The Chapters Intimation of the death of their Bishop, praying Congé d'Estire. 2. Congé al eux d'Estire. 3. A Certificate of the Election. 4. The Assent of the Bishop and the King. 5. The Writ to the Archbishop to Confirm and Install him; because in such case of Translation he shall not be Consecrated de Novo, as aforesaid. But Consecration is necessary to the making of him a Bishop who was none before, and is the fourth Act in order to a Bishop, according to the enumeration of these steps and degrees thereunto, which in the said case of Evans and Ascough is mentioned by Whitlock; where he faith, That in the making of a Bishop when a bishopric is void, the course is, (1.) To obtain a Congé d'Estire. 2. The King's Letters Missive, whom they shall abuse. 3. Upon the Election three Instruments thereof; one whereof to the party Elected, another to the Archbishop, a third to the King, certifying him of the Election, and then there is an act of Assent to the Election, which cannot be without his Assent. 4. The Kings Writ to the Archbishop to Consecrate and Install the person Elected. 5. Then the Archbishop issues forth a general Citation, and therein doth prefix a certain day for the Confirmation, which is done accordingly, and then be is Consecrated. Then the new Bishop swears Fealty to the King, which being done the King order him his Temporalties: so that there are three principal Acts required to the making of a Bishop; The Election is as the solicitation, the Confirmation is the Contract, the Consecration is the Consummation of the Marriage: Answerable whereunto, said Doderidge in the Case aforesaid, are the Acts of making a Parson; As 1. Presentation, whereto answers the Election of a Bishop: 2. Admission, to which Confirmation answers: 3. Institution, which is as the Consecration; and Induction as the Restitution of the Temporalties 
p in dict. Case Evans & Ascough.  The Spiritual Marriage between the Church and the Bishop initurper Electionem, Contrabitur per Confirmationem, & Consummatur per Consecrationem; and the Restitution of the Temporalties is as the bringing home of the Wise.   

CHAP. VII.  
Of Deans and Chapters.  

1. What a Dean is, why so called; what Dean and Chapter signifies; and what Deans Rural arc.  
2. The Division of Deans according to the Civil and Canon Laws; a Question in Law touching the Deanary of St. Martin's.  
3. Two ways of Creating Deans; and in what other senses the word or style of Dean is applicable.  
4. Four sorts of Deans according to the Law of the landlord.  
5. The Patronage of deaneries is in the Crown.  
6. The Dean and Chapter of a Cathedral, is a Corporation Spiritual.  
7. A Deanary consists of two parts; The difference between a Dean, Prebend, and Parson; and that deaneries and Archdeacomies are Ecclesiastical Dignities.  
8. Chapter, what; the several Acceptations of that word.  
9 The difference between Capitulum and Conventus in the Canon Law.  
10. The description of a Chapter as to their Constitution and Government.  
11. Whether one Bishop may have two Chapters?  
12. Whether the Lease of a Parsonage in one diocese, annexed to a Prebend in another, made by that Prebend, be good without the Confirmation of that Bishop in whose diocese the Parsonage is?   
(1.) DEAN (〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, decem) is an Ecclesiastical Magistrate, so called, because anciently he presided or had power over Ten Canons or prebend's at the least. Sed dicuntur Decani Rurales, eo quod Decem Clericis five Parochiis praesint. Secund. Papiam, Lindw. de Constit. verb. Decan. Rurales gloss. Dean Rural, because he usually had charge over Ten Country Parishes. Anciently also called Archipresbyter, because other Presbyters were under his charge. Here in England he is commonly called a Dean who is next under the Bishop, and Chief of the Chapter ordinarily in a Cathedral Church, the rest of that Ecclesiastical Society or Corporation being called Capitulum, the Chapter. Dean and Chapter is a Body Corporate Spiritual, consisting of many able persons in Law, viz. the Dean (who is Chief) and his prebend's, and they together make the Corporation. And as this Corporation may jointly purchase Lands and Tenements to the use of their Church and Successors: so likewise every of them severally may purchase to the use of himself and his Heirs. After the death of a Prebend, the Dean and Chapter shall have the Profits 
a 33 L. 3. Aid del Roy 03. per Therp.  And after the death of a Dean of a Free Chappel belonging to the King, the King shall have the Profits of the Deanary; for it is at the pleasure whether he will Collate a new Dean to it 
b Ibid. per Fif.  It is likewise held, that a Deanary is a Spiritual Promotion, and not a Temporal, by all the Judges 
c D. to El. 273, 37  And if the Nomination and Patronage of a Deanary be at the appointment of the King, his Heirs and Successors, and he appoint a Dean, yet it is a Spiritual Promotion 
d Ibid.  The King makes the Corporations of Dean and Chapter 
e 14 H 8. 3 b.  The Chapter of the Bishop consists of a Dean as the Chief, and of the Prebendaries, or the like, which are commonly called the Chapter 
f 17 E. 3. 40. b. per ●arning  As to the Bishop and Chapter, which are but one Body, their possessions are divided, so as the Bishop hath a part for himself, and the Chapter the residue 
g 40 Ea. 23. Coke 3. Rep. 75. b.  And their Possessions also for the most part are divided, the Dean having one part alone in right of his Deanary, and each particular Prebendary a certain part in right of their prebend's: the residue the Dean and Chapter have alike; and each of them is to this purpose incorporate by himself 
h 17 E. 4. 76. 17 Ass. pl. 29. 18 E. 3. 36. F. N. B. 195.  In the Cathedral Churches of St. David and of Landaff; there never hath been any Dean, but the Bishop in either is Head of the Chapter; and in the Bishop's absence, in the Chapter at St. David's and at Landaff, the Archdeacon. There are also some Deans in England without any Jurisdiction, only for Honour so styled; as the Dean of the Chapel Royal, and Dean of the chapel of St. George at Windsor: And some Deans there are without any Chapter, yet enjoying certain Jurisdictions, as the Dean of Croyden, the Dean of battle, the Dean of Bockin, etc. In the Case of the Dean and Chapter of Norwich it is said, That in Christian Policy it was thought necessary, 
Coke 3. Dean and Chapter of Norwich, Case 40 & 41 Eliz.  (for that the Church could not be without Sects and Heresies) that every Bishop should be assisted with a Council, viz. a Dean and Chapter, (1). To Consult with them in deciding of difficult Controversies of Religion; to which purpose every Bishop habet Cathedram. (2). To Consent to every Grant the Bishop shall make to bind his Successors; for the Law did not judge it reasonable to repose such confidence in him alone. At first all the Possessions were to the Bishop, afterwards a certain portion was assigned to the Chapter; therefore the Chapter was before they had any Possessions, and of Common right the Bishop is Patron of all the prebend's, because their Possessions were derived from him. So that so long as the bishopric continues, the Dean and Chapter (being his Council) remains. This word [Dean] is diversely used by Lindwood 
i Lind w. pro Const. tit. de Constit. verb. per Decanos Rurales.  who speaking of Dean-Rurals 
k Decretal. Ext. de Offic. Archi. Dean Rurals; what. Decani Rurales sunt Decans Temporales, ad aliquid Ministerium sub Episcepo vel Archicpiscopo exercendum Constituti. Lindw. de Const. c. 1. Gloss. in verb. Decan. Rural.  describes them to be certain persons that have certain Jurisdiction Ecclesiastical over other Ministers and Parishes near adjoining, assigned unto them by the Bishop and Archdeacon, being placed and displaced by them: Such are the Dean of Croyden in Surrey, the Dean of battle in Kent, the Dean of Burian in Cornwall, etc. These Deans Rural are Decani Temporales, Constituted to some Ministerial Function under the Bishop or Archbishop 
* Lindw. ib. They were anciently called, Testes Synedales.  They are certain Ecclesiastical persons having certain Offices commonly belonging to the Bishop and Archdeacon, and therefore to either of them belongs the receiving or removing of them; and their Office is temporal, not perpetual, as is the Office of the Deans of Cathedral and Collegiate Churches, and other Churches quibus perpetuo intitulantur 
l Idem de Jadic. ver. Decan. Rural.   
(2.) The Civil and Canon Laws do chief take notice but of three sorts of Deans; the one, he who is impower'd and set over Ten soldiers 
m C. de Decanis, l. 12. per totum.  Another, he who is called Dean Rural, as aforesaid 
n Extra de Censib. c. cum Apostolus.  The third is, a Dean of a Cathedral or Collegiate Church, as abovesaid 
o Extr. de App. c. dilectis filiis.  There is also the Deanary of St. Martin le Grand, Lond. concerning which Lindwood puts the question, Whether it be such an Ecclesiastical Benefice as in effect may incur such penalties, as may possibly happen to other persons Beneficed? And after deep inquiries into the Laws, precedents, and Antiquities foreign and domestic, with very delectable variety of great Learning hinc inde argumentatively, and pro & con impartially, at last doth conclude it in the Affirmative. Lindwood, Constit. tit. de Cohab. Cleric. & Mul. c. ut Clericalis, verb. Beneficiati.  
(3.) As there are two Foundations of Cathedral Churches in England, the Old and the New: (the New being those which King Hen. 8. upon the suppression of abbeys, transformed from Abbot or Prior and Convent, to Dean and Chapter) So there are two ways or means of Creating these Deans; for those of the old Foundation were raised to their Dignity much like Bishops: the King first issuing and granting his Congé d'Eslire to the Chapter, the Chapter thereupon making their Election, the King then yielding his Royal Assent, and the Bishop Confirming him, and giving his Mandate to install him. But those of the New Foundation are by a much shorter course installed by virtue of the King's Letters Patents, without either Election or Confirmation. Deans of the Old Foundation (before the suppression of Monasteries) arrive to their Dignities much like Bishops: But Deans of the New Foundations (upon suppression of abbeys or Priories, transformed by H. 8. into Dean and Chapter) are by a shorter course Installed by virtue of the Kings Lett. Pat. Without Election or Confirmation, it was said by Hobart in Briggs Case, That a Dean and Chapter are a Body Spiritual, and annexed to the Bishop throughout all England. Briggs C. in Winch. Rep. The same word is also applied to divers that are the Chief of certain peculiar Churches or chapels, as the Dean of his majesty's chapel, the Dean of the Arches, the Dean of St. George's chapel in Windsor, etc. Nec Collogia alicui praefecti, nec Jurisdictione ulla donati, Nomine tamen velut honocis gratia. Insignes, says the Learned Spelman.  
(4.) Each Archbishop and every Bishop hath a Dean and Chapter; and whereas it was formerly said, That the Civil and Canon Laws do chief take notice but of three sorts of Deans, it is manifest, that there are four sorts of Deans or deaneries, whereof the Laws of this Kingdom do take knowledge. The first is a Dean who hath a Chapter consisting of Canons and Prebendaries, as aforesaid, subordinate to the Bishop, as a Council assistant to him in matters Spiritual relating to Religion, and in matters Temporal relating to the Temporalties of his bishopric 
p Co. par. 3. Case Dean & Chap. of Norwich.  The second is a Dean who hath no Chapter, Presentative, having Cure of Souls; he hath a Peculiar, and a Court with Ecclesiastical Jurisdiction therein; he is not subject to the Visitation of the Ordinary: Such is thè Dean of battle in Sussex, a Deanary Founded by William the Canquerour in memory of his Conquest; who though he be Presentable to the Bishop by the Patron, and admitted to the Deanary by Institution and Induction by the Bishop of Chichester, yet is exempt from his Visitation. The third is, whose Deanary is not Presentitive, but Donative, nor hath he Cure of Souls, but is only by Covenant or Condition; he hath a Court and a Peculiar, holding Plea of matters Ecclesiastical arising within his Peculiar over divers Parishes. Such a Dean constituted by Commission of the Metropolitan, is the Dean of the Arches, the Dean of Bocking in Essex, and divers others. The fourth is the Rural Dean aforesaid, having no absolute Judicial power in himself, but is only by the direction of the Bishop or Archdeacon, to order and prepare Ecclesiastical affairs within his Deanary and Precinct; the power of these Rural Deans is at this day nigh extinguished by the Office of the Archdeacon and the Bishop's Chancellor; yet in some parts of this Realm it is still in force.  
(5.) Of these Four sorts of Deans, the first, as was said, hath a Chapter, being an Ecclesiastical governor Secular over the Canons and Prebendaries in the Cathedral Church, as the Dean of Canterbury, St. Paul's, &c. The Patronge of all which deaneries is in the Crown, and doth not belong to any Subject. Also, the new deaneries (as was formerly hinted) which were translated from Priories and Covents, or were after the dissolution of abbeys and Monasteries Founded by King H. 8. or other Kings of this Realm are now Donative, and the Deans thereof are by the King's Letters Patents Installed: but the Ancient Deans of Chapters are (as Bishops) by a Congé d'Eslire, and are after Confirmed by the Bishop.  
(6.) The Dean end Chapter of Canterbury are, during a Vacancy of that archbishopric, Guardians of the Spiritualties, to whom the Stat. of 25 H. 8. of Dispensations, giveth power of Dispensation when that See is vacant 
q Cab. & glover's Cise verse. the Bishop of Coventry and L●●field. Hob. Rep.  The Dean and Chapter of any Cathedral make a Corporation Spiritual, and at the Common Law challenges are allowed where the Issue concerns a Corporation, and they to make the panel, or where any of their Body are to go on the Jury, or any of kin unto them, though the Body Corporate be not directly a party to the Suit: A Dean and Chapter bringing an Assize, a Juror was challenged, because he was Brother to one of the Prcbendaries 
r Vid. 〈◊〉 E. 4 〈…〉 18. 21 〈◊〉.  and the challenge for that reason allowed 
s Day's Case vers. Savage. Hob. Rep.  If a Dean take an Obligation to him and his Successors, it goes to his Executors; which holds true also as to a Bishop, Parson, Vicar, etc. 
t Arundel's Case. Hob. Rep.   
(7.) A Deanary consists of Two parts, viz. Officium & Beneficium; The Officium hath two parts, the one is Dignity and Jurisdiction, the other is Administration: But some Promotions are mere Administrations, as prebend's and Parsons, which are not Dignisies, because they have not Jurisdiction, 11 H. 4. But an Archdeacon hath a Dignity, because he hath a Jurisdiction 
u Case Evans and Ascough. Latch. Rep.  So hath a Dean, to whom Anciently (according to Lindwood) the Canons made their Confessions, Et quod Canonici quead euram animarum subsunt Decano. Lindw. de Poenit. c. 1. gloss. in verb. vel Decano, & in ver. Decanum & Capitulum. Who ought to visit his Chapter, 5. E. 3. 7. and if a Probend be made a Dean, the Prebendary is void by Cossion, 5 E. 2. F. Brieff. 800. Also a Dean may make a Substitute as to the matters of his Jurisdiction, as for Corrections, or Visitations; but not as for the other part, viz. the Administration: for which reason he cannot make a Deputy to Confirm Leases, and the like 
x Dict. Case. Evans & Ascough  So that in a Deanary Cathedral there seems to be, (1) Dignity and Jurisdiction, (2.) Office and Administration, (3.) the Behefit or Profits thereof; which seems very clear, for that a Parson, a Prebend, or the like, hath not Dignity, but only the Office or Administration, with the Profits; but a Dean, who hath Administration as others, hath also Jurisdiction and Dignity. The Law is also the same as to an Archdeacon, 11 H. 4. 40. 7 H. 6. 27. 27 H. 6. 5. And a Writ brought against a Dean is good and sufficient without his proper Name, because it is of itself a Name of Dignity: and that a Deanary is a Dignity, appears by 5 E. 3. 9 Breve 800. as aforesaid; and it is an Office also, for that in Ancient times, a Dean took the Confessions of his prebend's, as was likewise hinted before. Also a Dean may by his Dignity make a Deputy to correct, etc. but not as to his Judicial Office, as to Confirm Leases, and the like 
y Case Evans verse. Ascanio. in primo loca Latch. Rep.  By the Canon Law, he that is the Archipresbyter, is also called Dean, scil. Presbyterorum vel Ecclesiae. Cap. ad. haec, De Offic. Archidiac. Cano. innovamus, 60. Distinct. And because the Dean of a Church (understand it of the Roman Church) in locum Archipresbyteri subrogatus est. Rotae Decis. 451. in novis— & rursum, in Decis. 443. The Archipresbyter was so called, because he was in some certain matters and causes set or appointed over the Priests or Presbyters, and such as were of the Sacerdotal Office, specially in the absence of the Bishop; Cap. 1. & 2. De office, Archipresb. The Dean is such a Dignity, that the Canon Law styles him, honorabiliorem partem Capituli; Cap. post Electionem. c. 7. the Concess. Praebend. c. cum inter ca 18. & ibi Panor. & gloss. de Elect. And in a large sense a Dean may be said to be the chief of any that are of the same state and order; Gloss. in rubr. de Decanis, lib. 12. C. & ibi Alceat. and so the Canons of the Church of Constantinople, tanquam Digniores, were by Honorius and Theodosius called Decani: L. non plures 4. de Sacros. Eccles. lib. 1. C. tit. 5. and the more honourable inter Rotae Auditores, is the Dean of the Pope's chapel, propter Ministerium, quod vocatur Mithrae. Lud. Gomes. in proaem. ad Reg. cancel. de Prothonotariis. The truth is, the Canon Law in express terms says, that Deconatus, or a Deanary, est Nomen speciale Dignitatis: Cap. cum illis vero, §. illis de Praebend. in 6. that is, when it refers to praeeminency in any Church Cathedral or Collegiate; Gemin. Cons. 131. nu. 5. ver. expressit. de Deconatu. For as to Deans Rural, it is otherwise: Cap. licet Canon. de Elect. in 6. the Dignity, qua talis, belonging properly to the other, viz. Decano Capituli, who is Caput principale ipsius; yet under the notion or appellation of a Chapter, the Dean thereof is not comprehended, unless he be specially mentioned or nominated: Rebuff. in Tract. nominat. q. 8. nu. 33. & Barbos' in 3 Decret. c. post Electionem. de Concess. Praebend. nu. 3.  
(8.) Chapter, Capitulum, so termed by the Canonists, not properly, but metaphoricaily, quasi a Little head, or a kind of Head, not only to rule and govern the diocese in the Vacation of the bishopric, but also when the See is full to assist the Bishop as a Council, by way of Advice in matters pertaining to the diocese: Vid. Panor. in cap. Capitulum, extra de Rescript. The Chapter consisting of a Dean, Canons, and prebend's, is Clericorum Congregatio sub uno Decano in Ecclesia Cathedrali; or it signifies, Congregationem Clericorum in Ecclesia Cathedrali, Conventuali, Regulari, vel Collegiata. Of these Chapters some are Ancient, some New; the New are those which were founded or translated by King Henry the Eighth in the places of Abbots and Covents, or Priors and Covents: Or those which are annexed unto new bishoprics founded by H. 8. as were Bristol, Chester, and Oxford. This word Capitulum, or Chapter, hath (in addition to the premises) other significations in Lindwoods' Provincials, where he speaks de Capitulis Ruralibus, of Chapters Rural, Lindw. tit. de Constit. cap. quia incontinentiae, gloss. verb. Capitulis Ruralibus; and there acquaints us with no less than six significations of this word. Sometimes (says he) it is taken for the place, in quo fiunt Communes tractatus Collegiatorum. Sometimes it is taken for the place, In quo fiunt Disciplinae delinquentium: Cap. Reprehensibilis in fi. Extr. de Appell. Sometimes it is taken pro Decretali vel abia certa distinctione Sacrae Scripturae: Cap. cum supr. Extr. de Sepult. Sometimes it is taken, pro Capitulis Ruralibus, as aforesaid, that is, when in Lecis minus insignibus, viz. in Rure Constitutis, known by the name of Conventus in Otho's Constitutions: Cap. Sacramenta, ad finem, ver. Conventib. Sometimes it is taken for a Collection of persons, adinvicem de his quae eis incumbunt in Locis ad hoc assignatis tractantium; and being taken in this sense, it may be understood sometimes for persons Congregated in a Metropolitan or Cathedral Church, and sometimes for persons congregated in a Church Conventual, Regular or Collegiate: and each of these last may in a large sense be said to be a Collegiate Church, according to the description thereof, viz. That Ecclesia Collegiata est Collectio hominum simul viventium; but to speak properly, that is Capitulum, which is respectis Ecclesiae Cathedralis: That Conventus, which is respectu Ecclesiae Regularis: and that Collegium, which is respectu Ecclesiae Inferioris, ubi est Collectio viventium in Communi. And sometimes Capitulum is taken for a Collection of many persons, not living in Common, sed ob tracatus Communes inter se habendos, ad aliquem locum Constuentium; according to which, a convening together of many Rectors, Vicars, and other Ecclesiastical persons, ob tractatus communes inter se habendos, etiam dicitur Capitulum 
z Lindw. ubi supra.  Panormitan understands it, pro Collectione seu pro Collegio ipsorum Canonicorum; but withal says, it hath divers significations, all which he comprizes in this one Verse, 
Distinguit, minuit, Locat, & Collectio fertur.  Distinguit, when one Subject is distinguished from another in any Tract or Treatise: Minuit, when it stands diminutively, Capitulum, quasi parvum Caput, as aforesaid, understand it secundum modum: Locat, when it is taken for the Place itself where the Canons are met or convened: Collectio, and so it is taken pro ipso Collegio, as aforesaid; Panorm. de Rescript. Extr. c. Capitum. Whereof there are three inseparable signs, as one Common Seal, one Common Stock or Treasure, and one Common Head or Rector.  
(9) By the Canon Law the words, Capitulum, Conventus, Coetus, and Concilium, are as it were Synonymous; but the terms, Capitulum and Conventus, are frequently used Promiscuously: But to speak properly according to that Law, Conventus is said to be Congregatio Ecclesiae Regularis; and Capitulum or a Chapter is said to be Congregatio Ecclesiae Secularis 
a Gloss. ib.  The word [Chapter] taken (as here) in a proper Canon-sense, is a name Collective, having a Plural signification; yet in reference to different things, may be accommodated as well to the Singular as the Plural.  
(10.) A Chapter Ecclesiae Cathedralis, consists of persons Ecclesiastical, Canons and Prebendaries, whereof the Dean is chief, all subordinate to the Bishop, to whom they are as Assistants in matters relating to the Church, for the better ordering and disposing the things thereof, and for Confirmation of such Leases of the Temporalties and Offices relating to the bishopric, as the Bishop from time to time shall happen to make 
b Co. 3. par. Case of the D. and Chapter of Norwich.  It seems that at the Common Law, by the Gift or Grant of Lands to a Dean and Chapter (being a Corporation Aggregate) the Inheritance or Fee-simple may pass to them without the word [Successors,] because in Construction of Law such Body politic is said never to die 
c Hugh's parson. Law. cap. 3.  This must be understood only in reference to their taking of the thing granted, in their politic, not Natural Capacity.  
(11.) One Bishop may possibly have two Chapters, and that by Union or Consolidation, as in the Bishop of Waterford's Case, who had the bishopric of Lismore and the Chapter thereof united to that of Waterford: In which Case although the Chapter of Lismore, only Confirmed the Grants of Lands belonging to Lismore, and the Chapter of Waterford only confirmed the Grants of Lands belonging to the bishopric of Waterford; yet because the Union there was not extant, the Judges held the Confirmation in manner aforesaid to be good; but otherwise all the Judges held, that both Chapters ought to have Confirmed 
d Co. 12. 71. a. b. Dyer. 282. p. 26. Sr. Sim. Degg's Law, cap. 5. Pars. Counsellor. par. 1. c. 10.  For it seems if a Bishop hath two Chapters, both must Confirm his Leases 
e Temp. R, ●. Fitz. tit. Grnats 104. Hugh's parson.   
(12.) A Parsonage in the diocese of W. is annexed to a Prebend in S. the Prebend makes a Lease for years, which is Confirmed by the Bishop, and Dean and Chapter of S. It was held by the Court to be good, without the Confirmation of the Bishop of W. in whose diocese it is. 
More's Rep.  In Eyre's Case it was resolved, That Chapters are not of a capacity to take by Purchase or Gift without the Dean, who is their Head. And in the Case of Eaton-Colledge, where a Lease was made by the Dean and Chapter of the college of Eton, whereas they were incorporated by the Name of the Dean and Chapter of the college of St. 
3 & 4 Ma. Eaton-Colledg. Case. More ibid.  Mary's of Eton; Resolved, that the Lease was void for the Misnosiner. Yet, whereas the Dean and Canons of Windsor were Incorporated by Act of Parliament, by the Name of the Dean and Canons of the King's Free-Chappel of his Castle of Windsor, and they made a Lease by the Name of the Dean and Canons of the King's majesty's Free-Chappel of the Castle of Windsor, 
Pasch. 6 Eliz. More ibid.  in the County of Berks: Resolved, the Lease was good; For although the King in the Act of Parliament calls it his Castle, yet when another speaks of it, it is more apt to call it the Castle, and therefore such variance shall not avoid the Lease. Likewise, whereas Christs-Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon: 
The Lord North's Case. Moor's Rep.  and they made a Lease by the Name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon; and the Liberties de Academia did extend further than the Liberties of the City; yet it was adjudged a good Lease, because the substance of the Corporation was inserted in the words of the Lease.   

CHAP. VIII.  
Of archdeacon's.  

1. What an Archdeacon is; his Office and Jurisdiction.  
2. The several kinds of Archdeaconries'; and how many in England.  
3. Whence the archdeacon's power is derived, and whether a Quare Impedit doth lie of it or not?  
4. In what case Action lies against an Archdeacon, for refusing to give Induction to a Clerk Instituted by the Bishop.  
5. Archdeaconry not comprised under the notion of a Benefice with Cure of Souls.  
6. Process of Quorum Nomina prohibited by the Canon to be issued by any Archdeacon.  
7. How often an Archdeacon may have his Visitation; and what his Office or Power therein is.  
8. How a person ought to be qualified, that may be an Archdeacon: It is an Ecclesiastical Dignity.  
9 Cardinal Otho's Constitution touching the archdeacon's government in his Visitations.  
10. How archdeacon's are distinguished at the Canon Law.  
11. Conformity thereto in the practice of the Common Law.  
12. A Case at Common Law, touching a Lease for years of a Glebe made by an Archdeacon.  
13. The same Case somewhat otherwise reported.  
14, Whether a Quare Impedit lies of an Archdeaconry.   
(1.) ARCHDEACON, 
Philip, a Fifth Son of Lewis the Gress, K. of France, disdained not to be an Archdeacon in 〈◊〉 Paul. AEm●l. Tilius.  from [archos] Princeps or Chief, and Diaconos, Deacon, that is, the first or chief of the Deacons: Sum. Host. de Offic. Archid. etc. 1. de Scrut. in Ord. fac. being (according to the Canon Law) such, as hath obtained a Dignity in a Cathedral Church, to have the Priority among the Deacons, and first in Jurisdiction next after the Bishop; Sum. Host. ibid. For as of Common Right all Ecclesiastical matters within the diocese appertain to the cognizance of the Bishop, so under him to the Archdeacon, excepting only such things as by Law are specially prohibited 
a Sum. ibid. . And therefore is said to be dignified with this Title, for that in many things he doth supply the room of the Bishop, to whom he is in precedency to others subservient, and unto whom his service chief relates 
b Can. Legi●●. 93. Dist.  Every Bishop (be it Archbishop or other) hath under him an Archdeacon for the better discharge of his Cure. He hath Jurisdiction of Common right, which may vary according to Circumstances and the custom of the place; 
There are 60. Archdeacon's in England.  and therefore in some cases it is Jurisdictio Ordinaria, in others it is Delegata. And although regularly (as such) he doth not exercise any Jurisdiction within the Church itself, yet it cannot be denied but that an Archdeaconry is an Ecclesiastical Dignity: Fran. de Aret. in council. 23. His Office and Jurisdiction by the Canon Law is of a far larger extent, than is now practicable with us, otherwise we should not there find him so frequently styled Oculus Episcopi, for that he is by the very Law the Bishop's Vicar in several respects, and therefore may (where the Bishop himself conveniently cannot) keep the Triennial Visitations, or not oftener than once a year, save where emergent occasions do require it oftener. He hath also under the Bishop the power of Examination of Clerks to be Ordained, as also of Institution and Induction; likewise of Excommunication, Injunction of Penance, Suspension, Correction, Dispensations of hearing, determining and reconciling of Differences among the Clergy, 
Clergy, from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Portio, they being in a peculiar sense, a● the Lords Portion.  as also of enquiring into, inspecting, and reforming Abuses and Irregularities of the Clergy, with a power over the subdeacons, and a charge of the Parochial Churches within the diocese. In a word, (according to the practice of, and the latitude given by the Canon Law) to supply the Bishop's room, and as the words of that Law are, in omnibus vicem Episcopi gerere. Synt. jur. l. 15. cap. 20. de Archidiacono.  
(2.) The dioceses within this Realm of England are divided into several Archdeaconries, they being more or less in a diocese according to the extent thereof 
c 17 Ed. 3. 23. Coo. par. 5 Cawdry's Case.  respectively, and in all amounting to the number of Threescore: And they divided again into deaneries, which also are subdivided into Parishes, Towns, and Hamlets. Of these Archdeaconries some are by Prescription, some by Law 
d 8 H. 6. 3. per Chauntr●● The Archdeaconry ●● Richmond i● by, Prescription. , and some by Covenant. Which difference hath this Operation in Law, That the Jurisdiction of an Archdeaconry by Prescription, or de jure, is exclusive to the Jurisdiction of the Bishop, insomuch that a Prohibition lies for such Archdeacon against the Bishop, if he intermeddle Juridically with any matters or things within such Archdeaconries: Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon; for in that case, if the Bishop so intermeddle within the Jurisdiction of such Archdeacon, or hold Plea within the same, he can have but an Action of Covenant against the Bishop, and no Prohibition lies in that case 
e 〈◊〉 2●. Jac. B. R kestrel and Jones Case. . The Cognizance which the Archdeacon hath, is of matters merely Ecclesiastical, to which end he or his Commissary may hold his Court, where, and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry; and from him the Appeal is to the Diocesan 
f 24 H. 8. c. 11. Co. Inst. par. 4. cap. 74. .  
(3.) An Archdeaconryship being only matter of Function, and (as supposed) not properly Local, nor any Indenture made of it, it hath been some question heretofore, whether a Quare Impedit doth lie of it, or not? But it was held in the Affirmative, for that an Archdeacon hath Locum in choro 
g Tim. 31 Eliz. C. B. Smallwood vers. Bishop of Lichfield. Leon. Rep. . The power of an Archdeacon was derived from the Bishop, and to him he is subordinate: To which purpose the opinion of the Court in Hutton's Case upon a Quare Impedit was, That if a Suit be before an Archdeacon, whereof by the Statute of 23 H. 8. the Ordinary may licence the Suit to a higher Court; that the Archdeacon cannot in such case balk his Ordinary, and send the Cause immediately into the Arches: for he hath no power to give a Court, but to remit his own Court, and to leave it to the next; for since his power was derived from the Bishop to whom he is subordinate, he must yield it to him of whom he received it; and it was said in that Case, that so it had been ruled heretofore 
h Sir Timothy Hutton's Case C. B. Hob. Rep. .  
(4.) If after the Clerk hath been presented by the Patron, and Admitted and Instituted by the Bishop, the Archdeacon shall refuse to Induct him into the Benefice, an Action upon the Case lieth for the Clerk against the Archdeacon 
i Pasch. 23 Eliz. C. B. adjudge. Godb. 23. vid. F N. B. 47. 26 H. 8. 3. by Knightly. . He hath power to keep a Court, which is called the Court of the Archdeacon, or his Commissary; And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry. And from him the Appeal is to the Diocesan.  
(5.) Although by the Canon Law, if one having a Benefice with Cure of Souls accepts an Archdeaconry, the Archdeaconry is void; yet it is conceived, that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there, viz. Provided that no Deanary, Archdeaconry, etc. be taken or comprehended under the Name of a Benefice, having Cure of Souls, in any Article above-specified; and to this Opinion did Wray and the other Justices incline in Vnderhill's Case 
k Pasch. 31 Eliz. B. R. Vnderhill and Savage's Case. Leon. Rep. . And indeed an Archdeaconry, by the express Letter of that Statute, is exempt from being comprehended under the name of a Benefice with Cure; for the words are, That no Deanary, Archdeaconry, Chancellorship, Treasurership, Chantership, or Prebend in any Cathedral or Collegiate Church, nor Parsonage that hath a Vicar endowed, nor any Benefice perpetually Appropriate, shall be taken or comprehended under the name of a Benefice having Cure of Souls 
l St. 21 H. 8. 13. .  
(6.) By the Ecclesiastical Constitutions and Canons of the Church, of England, no Archdeacon (nor indeed any other Ecclesiastical Judge) may suffer any general Process of Quorum Nomina to issue out of his Court: Except the Names of those to be cited be first expressly entered by the Register or his Deputy under such Process, and both Process and Names first subscribed by such Archdeacon, or other Ecclesiastical Judge, or his Deputy, with his Seal thereto affixed. And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year, the Archdeacon or his Official, shall within one month next after the Visitation ended that year, and the Presentments received, certify under his hand and Seal to the Bishop or his Chancellor, the Names and Crimes of all such as are presented in his said Visitation, to the end the Chancellor may not Convent the same person for the same Crime, for which he is presented to the Archdeacon; which course the Chancellor is in like manner to observe, in reference to the Archdeacon, after the Bishop's Visitation ended. The which was Ordained, to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts 
m Can. 120, 121. . And in cases of remitting Causes from the inferior Judge, the Archdeacon cannot remit the Cause to the Archbishop; but he must remit it to his Bishop, and he to the Archbishop. Trin. 11 Jac.  
(7.) The Archdeacon within the Jurisdiction of his Archdeaconry may by virtue of his Office have his Visitation, if he so please or need shall require, once every year; but of necessity he is to have his Triennial Visitation: Lindw. de Offic. Archid. c. 1. verb. Visitatione gloss. But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question, yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon, as the Bishop's Vicar, and so he may Visit of Common Right: but if in such inquiries he take upon him nomine suo proprio to correct Faults, other than such small ones as wherein custom may warrant him; in such case it is held, that he hath not power of Visitation de jure communi: Lindw. ibid. And in all such things as belong to his Visitation he hath Jurisdiction, and by custom over lay-people as well as over the Clergy: It seems therefore he may do all such things, as without the doing and dispatch whereof his Jurisdiction could not clearly appear; L. cui Jurisdictio ff. de Jurisd. om. Jud. and therefore wherever he may take cognizance of a matter, there he may also give sentence and condemn; Extr. de Caus. Poss. & propr. c. cum Super. & de Offic. Deleg. c. ex Literis. which is supposed to hold true by custom, and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court; whence it is that an Archdeacon may impose a penalty on laymen for the not repairing their Parish-Church within his Jurisdiction; Extr. eod. c. ult. & Extr. de Offic. Ord. c. 1. & Lindw. ubi supr. verb. Imperitiam. For it is expressly enjoined and ordained, That archdeacon's and their Officials, shall at their Visitation of Churches, take the condition of the fabric thereof into special consideration, specially of the Chancel; and in case there be need of Reparations, shall set or fix a time within which such Reparations shall be finished, which time is likewise to be set under a certain penalty: Lindw. de Offic. Archidiac. c. Archidiaconi.  
(8.) By the Canon Law a man cannot be an Archdeacon under the age of 25 years; Can. Nullus in propositum, 60 Dist. And by the Council of Trent he ought to be a Licentiate in Law or Divinity; Cons. Trid. 8. Cessio de Reform. general. Can. 12. They are called the Chief of the Deacons; C. 1. de Scrutin. in Ord. faciend. in whom there is an Ecclesiastical Dignity inherent jure Communi: And in some places they have this Dignity sine Officio; for Innocentius observes, That in Ecclesia Parmensi Archidiaconus nullum exercet Officium, & nihilominus dignitatem habet: Innocent. in c. de multa de Praebend. But regularly, according to the Canon Law, archdeacon's as to their Dignity, Office, and Degree are to be reputed according to the Law, Usage, and custom of their own Church and Chapter; Hostiens. Sum. de Offic. Archid. The Archdeacon is Oculus Episcopi, and ipso jure his Vicar in Visitations, Corrections, and Dispensations in matters Ecclesiastical within his Jurisdiction, he hath power of reforming the Clergy, of examining and presenting to the Bishop such as are to be Ordained, and of putting into possession such as are Presented, Instituted and Inducted into Ecclesiastical Benefices.  
(9) Cardinal Otho, in his Canon de Archidiaconis, hath Ordained, That all archdeacon's do prudently and faithfully visit the Churches within their respective Archdeaconries, as touching the Sacred Vessels and Vestments thereof, and generally to inquire into the Temporalties and Spiritualties belonging to the same, and that they endeavour to amend what they find amiss: Also, that they grieve not the Churches with superfluous charges or expenses, but require only moderate procurations in their Visitations; wherein they may not presume to receive money of any when Crimes are to be corrected or punished, nor Sentence any unjustly, on purpose to extort money from them, on pain of double the Sum to pious uses at the discretion of the Bishop, besides other Ecclesiastical punishment. Constit. Othonis, de Archdiaconis.  
(10.) The Canon Law doth distinguish of archdeacon's; the whole Title throughout [De Offic. Archidiac.] regularly speaks of an Archdeacon General, who hath not any Archdeaconry distinctly limited, Sed tanquam Vicarius fungitur vice Episcopi Vniversaliter, and doth represent the Bishop: Extra. de Consue. non putamus. Otherwise it is in him who hath a distinct Limitation of his Archdeaconry, for than he hath a Jurisdiction separate from the Bishop, which, where it is by custom, may be prescribed: Gloss. in ver. Visitent. dict. Const. Otho. Consonant to this seems that difference which the Judges took in the Case between Chiverton and Trudgeon, wherein they held and agreed, That there is a Jurisdiction of one Archdeacon, and there is the Jurisdiction of another, which is but a peculiar Jurisdiction; for the Archdeacon is an Officer who hath a Court of his own, in which he hath the Probat of Testaments de jure: And Doderidge Justice said, That he is a principal Officer belonging to the Bishop, & est quasi Oculus Episcopi; but otherwise it is of one who hath but a special Jurisdiction, as the Archdeacon of Richmond hath to make Institutions; and so 21 H. 6. 23. the Dean of Paul's in that case hath special Authority in St. Panchridge. Hill. 17 Jac. B. R. Case Chiverton and Trudgeon: Roll. Rep.  
(11.) In the Case between Gastrell and Jones, it was said by Ley Chief Justice, That it is to be considered, what Authority the Archdeacon hath in his own nature, as such, and what power he may have by Prescription, or otherwise: The Archdeacon is a Minister subordinate to the Bishop, viz. Deputy and Vicar, or an Officer under him, for, in case of Induction, the Bishop's Warrant is necessary to empower him to give the same; He hath also Judicial power, but it is not exclusive to the Episcopal Authority, but the Bishop is his superior: Both are Judges, but the one subordinate to the other, etc. And if Sentence be given in the archdeacon's Court, 
Q  the Appeal thence shall not be in the Bishop's Court, but in the Archbishops: And if a man dies Intestate, having goods within the archdeacon's Jurisdiction, and other Goods within the Jurisdiction of the Ordinary, 
Q.  the Archbishop (as he said) shall commit the Administration to the Archdeacon.  
(12.) The Archdeacon of H. having the Parsonage of A. appropriate to it, let the Land parcel of his Glebe for fifty years, in Anno 12 Eliz. The Bishop of E. Patron of the Archdeaconry, and the Dean and Chapter confirm it; The Archdeacon dies, another is Collated to the Archdeaconry. It was the Opinion of the Justices in this Case, first, That the Confirmation by the Bishop was not void, for that it was but an Assent only to the Lease of the Possession of the Archdeaconry, and not of the Bishop, and therefore not within the Statute of 1 Eliz. The second Point was, Whether this Lease was void by the Statute of 13 Eliz. Quaere, for not Resolved. Mich. 37 & 38 Eliz. B. R. Sir Edw. Denny and Eakenstall 's Case. Cro. par. 1.  
(13.) The same Case Reported by More; An Archdeacon having a Parsonage appertaining to his Archdeaconry before the Statute of 13 Eliz. made a Lease for forty years of the Parsonage, which was Confirmed after the Statute; adjudged the Lease and Confirmation both good. Arkingsall, or Eakenstall, and Denny's Case. More's Rep.  
(14.) A Quare Impedit was brought by the Executors of J. S. for not suffering them to Present to the Archdeaconry of D. which became void in the life of the Testator, and the Writ and Count both supposed a disturbance to the Testator in his life, In nunc retardationem Executionis Testamenti praedict. In this Case it was Resolved (1.) That a Quare Impedit did lie of an Archdeaconry. (2.) That the Writ as brought should abate, because it was in nunc retardationem, which cannot be of a Disturbance in the life of the Testator. But it was agreed, that the Executors might have a special Action upon the Case for their Disturbance. Trin. 31 Eliz. B. R. Smalwood and the Bishop of Coventry and Marshes Case. Cro. par. 1.   

CHAP. IX.  
Of Procurations, Synodals, and Pentecostals.  

1. Procuration, what; whence so called; and how paid.  
2. Whether Procurations be only due ratione Visitationis.  
3. Procurations Anciently paid in Victualibus, and not in Money; how paid to archdeacon's in lindwoods' time.  
4. Whether Procurations may be payable by custom to archdeacon's sine Visitatione?  
5. Archdeacon's to Visit personally; if otherwise, then how the Procurations are payable.  
6. Not above one Procuration to be paid; how that is to be understood.  
7. The Number of the Visitor's Attendants by the Council of Lateran in reference to Procurations; and how many an Archdeacon may have by the Canon.  
8. Synodals, the threefold signification of that word.  
9 The Synodal anciently called Cathedraticum & Synodaticum: what the Cathedraticum was, why so called; the Original thereof, and how it differs from Procuration.  
10. Pentecostal, what it is; when, by, and to whom payable; the probable Original thereof.  
11. A remarkeble Case relating to this Subject, that was Resolved and Adjudged in Ireland.   
(1.) THe Ordinary at his Visitation may by the Canon require his Synodals or Procurations, Extr. de Cens. c. Procurationes; that is, a certain Cense or Tribute in money paid to the Bishop or Archdeacon by the inferior Clergy at Easter-Visitation; called Synodale or Synodaticum, quia in Synodo frequentius dabatur. So that these Procurations are no other than certain sums of money which the Parochial Clergy do annually pay to the Ordinary or Archdeacon ratione Visitationis. Anciently they were paid in provisions of Victuals necessary for the Visitor and his Attendants, now converted into money instead thereof: So that this Procuratio is by Vallensis aptly defined, 
Vallens. Paratis, de Censib. §. 3.  Necessariorum sumptuum Exhibitio, quae, ratione Visitationis, debetur ab Ecclesia vel Monasterio ei cui ex officio incumbit jus & onus Visitandi, sive is sit Episcopus, sive Archidiaconus, sive Decanus, sive Legatus summi Pontificis. An. 1290. M. quod die Mercurii in Festo Sanct. Lucae Evang. Dominus Episcopus coepit Procurationem in Cibis & Potibus apud Bordesley, & pernoctavit ibidem 
a Giss. fo. 226. b. vid. Nome. Lex, ver. Procurat. . Whence the word Procuration is supposed to have its derivation, even from the duty incumbent on the Visited in Procuring of necessary Accommodations for the Visitor and his Attendants as aforesaid; which seems the more probable by what Duarenus says, Hoc autem munus ideo Procuratio vocatur, quia Ecclesiae Episcopum Procurant, id est, Curant, alunt, ac tuentur.  
(2.) It hath at times been smartly controverted, Whether Procurations be due only ratione Visitationis, or whether the payment thereof may legally be enforced without the Act of Visiting, and not exclusively to archdeacon's in the years of Episcopal Visitations? For if so, than the foresaid description which Vallensis makes thereof, is not adequate enough to the nature of the thing; of which opinion grounded on solid Arguments, is the Learned Author of the Historical Discourse on this Subject 
b Stephen's de Procurat. Edit. 1661. .  
(3.) Anciently (as aforesaid) these Visitation-Procurations, or Exhibitio necessariorum sumptuum, as Vallensis calls it, was no other than Victuals: For by the Council of Lateran (not the great General Council under Innoc. 3.) but that under Alex. 3. above thirty years before, 
Extr. de Censib. c. cum Apostolus.  about An. 1180. Visitors are so directed to proceed in the execution of their Visitations, as that Sumptuosas Epulas non quaerant, sed cum gratiarum actione recipiant quod honest & competenter illis fuerit ministratum. That these Procurations were originally paid in Victualibus, appears by several Constitutions of the Canon Law. Extr. de Censib. c. cum Apostolus, & de Censib. c. Romana, §. Procurationes. Consuetudo tamen (says Lindwoods' Gloss) operatur in pluribus locis, ut Procuratio hujusmodi sumatur in pecunia; quae Consuetudo bene potest procedere, ut sumatur à Volentibus sic in pecunia Solvere, non autem à Nolentibus. Extr. Benedict. 12. etc. Foelicis, & gl. Lindw. ubi supr. But that was only where the custom prevailed, the Canon anciently being peremptory to the contrary; for in the Sext. there is a Constitution made by Innoc. 4. (who became Pope An. 1243.) and afterwards ratified by a General Council at Lions under Greg. 10. about An. 1273. forbidding (sub poena Maledictionis aeternae) the taking of money in lieu of Procurations (vel à Volentibus sic solvere) C. 1. §. Procurationes, etc. exigit. eod. in sexto, & ibi Gloss. in casu; and the ordinary penalty practised in this case against Visitors of any rank inferior to patriarches, Archbishops, or Bishops, that should presume to receive Procurations otherwise than in Victualibus, was suspension ab officio & beneficio. And this way of paying Procurations ex antiquo, continued till the time of Boniface 8. who succeeding in the Papacy about twenty two years after Gregory, made a Constitution about the year 1295, That it should be lawful to any Visitor (Volentibus Visitatis, not otherwise) vice Victualium to receive, not to exact, Money towards the defraying of their Visitation-Charge. Gloss. in ver. dispendia, c. Foelicis, eod. in sexto: Which by Benedict. 12. in the second year of his Popedom, about 1337. was by a Canon or Constitution limited to a certain sum, according to the quality of the Visitor, and the condition of the Visited, which may take place, where it is not otherwise limited by custom; the Procurations of archdeacon's being in Lindwood's time, as he informs us, (which was in Henry the Fifths Reign, above two hundred years since) the sum of seven shillings six pence, according to the number of his Attendants, viz. twelve pence to each man, and eighteen pence to the Archdeacon himself, which (comparing the value of Money Then with the times Now) was considerable.  
(4.) The Question is not, whether Procurations are due Ratione Visitationis; but whether they are only due Ratione Visitationis, and not otherwise? It is supposed that they are and may be due otherwise than Ratione Visitationis, 
Vid. Hist. Disc. of Procurationt▪ p. 25, 26.  and that therefore archdeacon's may receive Procurations in the L. Bishop's Triennials, and yet Visit not; for custom seems to lay a just claim to this Ecclesiastical payment of Procurations sine Visitatione, where the custom is Rationabilis & Legitime praescripta. Time was, when archdeacon's had jus Visitandi quolibet anno, and so accordingly did Visit, & eâ ratione received Procurations. Lindw. de Offic. Archid. c. 1. gl. in ver. Visitation. & Extr. de Offic. Archid. c. Mandamus, gl. in ver. saepius Visitare. And sometimes they Visit not, as in the Episcopal Triennials, yet by the custom do and may receive their Procurations; 
P. ubi supr, etc.  understand this only of some, not all archdeacon's.  
(5.) The Canonists define Procuration to be an Exhibition sumptum Necessariorum paid to the Prelates, qui Dioeceses peragrando Ecclesias subjectas Visitant. And it is a Rule in the Canon Law, Quod nulla est adversus Procurationem praescriptio. Inst. Ju. Can. l. 2. de Censib. And by the same Law the Archdeacon is to go personally to the place that is to be Visited, and ought not for that purpose to send another; which if he doth not so do, he is not to receive in denariis the Procurations due ratione Visitationis. Extr. de Cens. c. Procurationes. Notwithstanding the person whom he Commissionates for that purpose Nomine suo, shall receive the Procurations for himself and his Attendants in Victualibus. Ar. ad hoc de Offic. Ord. c. si Episcopus, l. 7. & de Censib. c. 1. etc. Foelicis, de Cens. Lindw. glow. de Offic. Archid. c. ut Archidiaconi, ver. videant. These Procurations are called also Proxies, Cenag. & Pentecostal. per. an. 64 l. 10 s. ita Archidiaconatus Glouc. valet clare in Proxis 
c Ex Record. Primit. 26 H. 8. vid. Dyer fo. 273. b. & Claus. Ro●. 31 E. 1. M. 15. dors. vid. Nomo. Lexicon, ubi supr. , which is a profit of Jurisdiction. Archidiaconis inhibemus ne aliquo modo Procurationes recipiant sine Causa Rationabili, nisi illo die quo personaliter Visitant. Provin. Constit. de Offic. Archid.  
(6.) The Ordinary may not receive above one Procuration, that is, he may not of the same Church exact one Procuration from the Rector, another from the Vicar; if he hath the Procuration in Victualibus of the Rector, he ought to receive nothing of the Vicar, nec è contra; for one Procuration of one Church for one day is held sufficient: dict. c. Foelicis, de Censib. Nor do the Canons allow above one Procuration, in case there be more Churches than one Visited in one and the same day; the Reason whereof in Law, because the Visitation is the Principal, the Procuration is but the accessary, and the Visitation only of one day ought not to have the Procurations of more, nor ought the accessary to exceed the Principal. Lindw. ibid. de Censib. c. quamvis, & gl. ib. ver. Canon's. Nor ought there to be paid above one Procuration for the Mother-Church and the chapel thereto belonging, when they are Visited. Can. ibid. ver. una Ecclesia. Yet there are Canonists of very good Authority, as Andraeas and others, who holding the contrary, do positively assert, That every chapel dependent (if Peopled and of ability) shall pay its own proper Procuration at times of the Ordinary Visitation, for that the Bishop is to have a respect to every individual Member of his diocese. It is therefore distinguished and confessed, that this is true, when the chapel dependent hath a Curate proper of its one, and distinct from, or other than the Curate of the Mother-Church: But otherwise when the Rector of the superior Church, is Curate of both, only doth exercise the Cure in the said chapel by a Vicar not Perpetual, but Temporal and removable ad Libitum. Gl. in d. ver. una Ecclesia. Lindwood on this occasion puts the Question, Whether in case the Church be of one diocese, and the chapel thereto annexed or united, or dependent thereon, of another; whether in that case there shall at the Visitation be but one Procuration paid for both? He resolves it thus, viz. That if the Ordinary of the place where the said chapel stands, hath formerly had there his Visitation, and Procuration, ratione Visitationis ejusdem, then and in that case the power of Visiting the same, nor by consequence the Procuration due ratione Visitationis, is not taken away from that Ordinary by such union or dependency. Gloss. ibid. in ver. Ecclesia.  
(7.) By the aforesaid Council of Lateran all Visitors were limited to a certain number of Visitation-Attendants, according to their several qualities, as Archbishops to the number of forty or fifty men with their Horses; the Bishop to twenty or thirty; Cardinals to twenty five (though they could not digest such an undervaluation) archdeacon's to five or seven; Deans (that is, Archipresbyteri Rurales, as the Gloss expounds it) to Two only: Gl. in ver. Decani. Extr. eod. c. cum Apostolus. Extr. Com. de Censib. c. vas Electionis. And the truth is, the Archdeacon (according to the Canon) may not have in his Ordinary Visitation above the number of seven persons; if he exceed that number, there is not any Procuration due for the Supernumeraries. Lind. de Cens. & Procurat. c. 1. ver. excedant, & glow. ibid. & gl. in ver. Visitationis, & gl. ib. in ver. Debitam.  
(8.) The word Synodale seems to have Three significations, as (1) it seems to signify Conventus or a Meeting, in the same sense with Synodus, as being taken for the Meeting or Synod itself, and so used by Gregory 3. in his Epistle to the Bishops of the Provinces of Baiory and Almany, Catholica Sanctorum Patrum Authoritas jubet, ut bis in anno pro salute populi Christiani seu exhortatione adoptionis filiorum SYNODALIA debent celebrari, etc. This Epistle you have cited by Cardinal Baronius, in the Eighth Tome of his Annals about the year 738. (2) It seems to signify the Acts done at a Synod, as well as the Synod itself; and in this sense you have it in the Tripartite History, 
Hist. Tripart. l. 7. so. 452.  where mention is made of a Synod of Bishops assembled at Antioch out of divers Provinces, who sent the Emperor Jovinian a Copy of the Nicene Creed, Hunc Libellum (meaning the said Creed) in collectione Synodalium Sabini conscriptum invenimus. 
Ibid. fo. 392.  In which place Synodalia seems to import the Acts of that Synod collected by that Sabinus. (3) It signifies a Cense or Tribute in money paid to the Bishop, or to some other for his use by the inferior Clergy. The forementioned Author of the Historical Discourse of Procurations, 
Pag. 78.  etc. acquaints us, That in the second part of the Appendix to the third General Council of Lateran there is an Epistle of Pope Alex. 3. to certain archdeacon's and Deans, reproving them for extorting of moneys from the Clergy sub diversis nominibus, in a fraudulent kind of way; Et hujusmodi exactionem (saith that Epistle) ut eam Liberius videamini exigere; quandoque Consuetudinem Episcopalem, quandoque SYNODALIA; quandoque Denarios Paschales appellantes. And in this sense is the word Synodale here used and taken, which the Archdeacon claims not so much Jure Communi Ecclesiastico, as by Composition with, or Prescription from the Bishop.  
(9) This Synodal or Synodical duty was anciently known by two other Names which now are grown obsolete, the one Cathedraticum, probably from the original Cause thereof, being ob honorem Cathedrae Episcopalis: the other Synodaticum, from the time of payment, both used promiscuously. The former of these, viz. the Cathedraticum was a Cense of two shillings paid by the inferior Clergy to the Bishop, as appears by the Acts of certain Councils of Bracar and Toledo, as also by the Constitutions and Rescripts of Popes, Ilud te volumus modis omnibus custodire, ne qui Episcoporum Siciliae de Parochiis ad se pertinentibus, nomine CATHEDRATICI, amplius quam Duos Solidos praesumant accipere. 10. q. 3. c. illud, etc. placuit, ibi, etc. So Honorius 3. expresseth Two shillings nomine Cathedratici. Extr. de Offic. Jud. Ordin. c. conquerent. & gl. ibid. in ver. Duos solidos; which is a Pension paid to the Bishop à qualibet Ecclesia secundum Loci consuetudinem; as Panormitan. upon that Text, Abb. c. conquerent. de Offic. Jud. Ord. The reason of this payment was (according to Hostiensis) in argumentum subjectionis, & ob honorem Cathedrae. Hostiens. in Sum. de Censib. ex quibus ver. Cathedraticum autem. And the Council of Bracar; Placuit ut nullus Episcoporum per suas Dioeceses ambulans, praeter honorem Cathedrae suae, id est, Duos Solidos, aliud aliquid per Ecclesias tollat? cited in the Decree, 10. q. 3. c. placuit. Note, that the Cistersians by virtue of their Order were privileged from being present at the Synodical Meetings assembled by the Bishop within his diocese, and from the payments of those Synodals. Gloss. in ver. Episcopus, c. Episcopus non debet, Dist. 18. Extr. de Majoris & Obed. c. 9 Quod supr. & gl. ib. in ver. Diocoesana. This Cathedratick-payment began, when the Revenues of the Church first came to be divided and allotted to several Ministeries; than it was that this payment was first made to the Bishop by the Beneficed Clergy within his diocese. Duaren. ut supr. & l. 2. c. 1. fo. 53. It is probable that this division of the Church Revenues was not far distant in time from the first or original distinguishment of Parochial Bounds, upon which affair Pope Euaristus, otherwise called Anacletus Graecus, did first enter about the year 110. Volateran. l. 22. Anast. Biblioth. & Baron. Annal. ad An. 112. nu. 4, 5, 6. and was afterwards carried on by Pope Dionysius, about the year 260. Baron. Annal. ad An. 260. nu. 17. Parochial Distribution in England was by Theodorus Archbishop of Canterbury, about the year 668. Spelm. council 152: But Speed saith, by Honorius the fifth Archbishop also of Canterbury, about the year 636. It may not hence be inferred, that this Cathedraticum or Synodal was only paid ratione Synodi; for it was sometimes, and very anciently paid also at Visitations, as appears by the seventh Council at Toledo, mentioned in the Decree, 10. q. 3. c. inter caetera, & casus ibi, where there is a Canon against the exacting of more than Two shillings only pro Cathedratico in Episcopal Visitations. This Cense or payment, though it be Onus Ecclesiasticum, yet it is not Onus innovatum, but Onus Ordinarium, and by imposition of Law; as appears by the Provincial Constitutions, Solutio Cathedratici, Synodatici, & Procurationum, ratione Visitationis, & alia hujusmodi, de quibus non dubitatur quin sunt Onera Ordinaria, suum capiunt effectum ab impositione Legis. Lindw. de Offic. Vic. c. quoniam. gl. in ver. Onera Ecclesiastica. Yet Procurations differ from the other in this, that Procurations are only Pensions, but the other are properly Census. The sinody or Synodal is by the Stat. of 34 H. 8. reckoned as a Church-due, 
Rastall in Pensions, etc.  for recovery whereof provision is made by that Act; and good reason, for the said sinody or Synodal, is a Pension certain and valued in the King's Books.  
(10.) The aforesaid Ingenious Author of the Historical Discourse touching Procurations, 
Dict. Hist. Dis. of Procurations, p. 99  etc. after his deep search into Antiquity, doth conjecturally conceive, that the Pentecostal, otherwise called Whitson-farthings, is nothing else but the Annual Commemoration, continuation or repetition of an Ancient payment or pension, issuing out of the Oblations brought by the people long since, specially at the time of the Foundation or Dedication of their several Churches, or at some other Solemnity, viz. the moiety or Third part of the Oblations then made. The same being reserved by the Bishop, and by a Contract (seu quasi Contractu) between him and the Founder of such Church, or Priest assigned to attend the same, settled in and upon the Episcopal See, and payable yearly at or about the Feast of Pentecost. These Pentecostalia were not (as some conceive) the peter-pences here anciently paid, for they were usually paid either at the Feast of St. Peter and Paul, or on Lammas day; but these Pentecostals seem to be paid upon or about the time that doth chief denominate the same, viz. at the Feast of Pentecost; and in the nature thereof seem to have reference to an Oblation frequently made by the Christians in the Elder times of the Church, and to have some tendency to that Liberal Devotion which was then as frequent, as sacrilege is now. In Leg. 18 Guilielm. Conquestor, De Denariis S. Petri, seu Vectigali Romano, viz. Liber homo qui habuerit Averia Campestria 30 denariis aestimanda, dabit Denarium S. Petri. Pro 4 denariis quos donaverit Dominus, quieti erunt Bordarii ejus, & ejus Boner, & ejus Servientes. Burgensis, qui de propriis Catallis habet id quod dimidia Marca aestimandum est, det Denarium S. Petri. Qui in Lege Danorum est Liber homo, & habet Averia Campestria, quae dimidia Marca in argento aestimantur, debet dare Denarium S. Petro. Et per Denarium quem donaverit Dominus, erunt quieti two qui resident in suo Dominico. Vid. S●ldeni ad Eadmerum Notae & Spicelegium, p. 179. Leg. 18. By this Law of William the conqueror it appears, that the Peterpence had no affinity with the Pentecostals. In Ancient times when the Bishop did visit Ecclesiatim, his usage was to celebrate the Mass in the Church which he visited, which indeed was every Parish within his diocese, and that by his Episcopal Authority, the whole diocese in respect of the Bishop being by the Law but Paroechia sua, 10. q. 3. c. Quia. & Duarenus, passim. 
Antiq. Eccles. B●i●. p. 28, & 64.  as the whole Province is said to be in respect of the Lord Archbishop of Canterbury. At this Mass the people used to make their Offerings to the Bishop, and one of the causes or reasons, why or wherefore the people in Ancient times were obliged to bring their Oblations to the Church, was propter Consuetudinem, and that certis Festivitatibus, among which the Feast of Pentecost was and is a most special one; at which Feast there was in many places here in England an Oblation, Anciently made by inferior Churches and Parishes to the principal Mother-Church, and whence probably the word Pentecostalia had its original denomination. These Offerings by the Canon Law were and are only due to the Clergy, and interdicted to the Laity, sub districtione Anathematis. 10. q. 1. c. Quia Sacerdotes, etc. Sanct. Patrum, ibi. In some places the Deans and Prebendaries of Cathedral Churches have them; It is said, That in the Cathedral Church of Salisbury there is a greater and a l●ss, 
Dict. Hist. Discourse of Procurat. p. 116.  distinguished and known by this difference of Major & Minor pars Altaris. And in some dioceses they are settled upon the Bishop and Archdeacon, and made part of their Revenue, for which the King hath Tenths and Subsidies. The Cathedral or the Mother-Church of Worcester was Anciently, and before the dissolution, a Priory, 
Ibid.  and among other Revenues had these Pentecostalia or Whitson-farthings yearly paid, sub nomine Oblationum or Spiritual Profits tempore Pentecostes: After the Dissolution, when King H. 8. about the three and thirtieth year of his Reign new-founded and reendo'wd the said Church, he restored these Pentecostalia (after he had h●ld them about a year in his own hand) to the said Church, which (as it is reported) the Dean and Prebendaries thereof receive at this day, and as appears by the Letters Patent:  
Henricus Octavus, etc. Sciatis quod Nos de gratia nostra speciali, ac ex certa scientia, ac mero motu nostris dedimus & concedimus, ac per praesentes damus & concedimus Decano & Capitulo Ecclesiae Cathedralis Christi & beatae Maria virgins Wigorn. omnes illas Oblationes & Obventiones, sive Spiritualia proficua vulgariter vocat, Whitsun farthings annuatim collect. s●ve recepta de diversis Viliatis in Comitat. nostris Wigorn. Warwic. & 〈◊〉. infra Archidiaconatum Wigorn & tempore Pentecost. oblata dicto nuper Prioratui beatae Mariae Wigorn. modo dissolute. dudum spectan. & pertinen. etc. Ex Archivis Decani & Capit. Wigorn.  
But in Gloucester, it seems, it is otherwise; for there the Bishop and the Archdeacon only receive them: nor can the Dean and Prebendaries that now are of the Cathedral make any just claim to them. For before the Suppression these Pentecostals were (inter alia) valued to the Archdeacon in the King's Books, as part of the Revenue of the Archdeaconry. And as for Procurations aforesaid, although they are (as Dr. 
Dr. cozen. Polit. Eccles. Angl. tab. 8.  cousin says) ratione Visitationis plerumque praestandae, yet not solummodo so; and thence it is held, that they are in some places payable to the Archdeacon jure Consuetudinario, even in the Bishop's Triennial year, sine Visitatione, on the archdeacon's part.  
(11.) To this purpose Remarkable is that Case of Proxies, which Sir John Davis, 
Trin. 2 Jac. in the Exchequer ●f Ireland, Enter le Roy & Sr. Ambr. Forth, Dr. of Law. Davis Rep.  the King's Attorney General in Ireland, reports to have been there Resolved and Adjudged. The Case was this; The Bishop of Meth, before the dissolution of Monasteries, had a Proxy of fifteen shillings four pence payable yearly out of the Commandry of Kells in the County of Meth, parcel of the Possessions of the Hospital of St. John of Jerusalem in Ireland; and one other Proxy of twenty shillings payable yearly out of the Impropriate Rectory of Trevet in the same County, parcel of the possessions of the Abbey of Thomascourt in the County of Dublin. In the thirty third year of King H. 8. the said Hospital and Abbey were suppressed and dissolved, and all the possessions of both the said Houses were vested in the actual possession of the Crown by Act of Parliament: But in the said Act there is an Express, Saving the Proxies to all Bishops and their Successors. Afterwards the Bishop of Meth and his Clergy (for that bishopric hath not any Dean and Chapter) by Deed enrolled, Dated 16 March 36 H. 8. granted to the said Proxies (inter alia) to King H. 8. his Heirs and Successors; the King being at the time of the Grant, and after, in the actual possession of the said Commandry and Rectory, out of which the said Proxies were payable. Afterwards Queen Elizabeth, by her Letters Patent dated Primo Novemb. in the thirty third year of her Reign, demised the said Commandry and Rectory to Dr. Forth. And now whether he shall be charged with these Proxies, and the Arrearages thereof, after the commencement of the Lease, was the Question; And it was Adjudged, that he should be charged therewith. In the Argument of this Case there were Three points moved and debated; (1) Whether the Proxies were wholly extinct by the suppression and dissolution of the said Religious houses, notwithstanding, the said Saving in the Act of Dissolution? (2) Whether the Bishop could grant the Proxies to the King? (3) Whether the Proxies in the hands of the King were extinct by the Unity of Possession? For the First point, it was Objected by Sir Ambrose Forth's Counsel, That the Proxies were extinct by the suppression and dissolution of the Religious houses: For that the Visitation of the Religious houses were the sole cause of the payment of the Proxies; Et cessante causa cessat effectus. For the Religious houses being gone and dispersed, they shall not be afterwards subject to Visitation, and then when the Visitation doth cease, the Proxies, being only Exhibition given to the Visitor for his Travelling charges, shall cease also; For Procuratio (as the Canonists define it) est Exhibitio sumptuum necessariorum facta Praelatis, qui Dioeceses peragrando Ecclesias subject as Visitant. Yet it was agreed, That the Visitation doth not cease immediately upon the Surrender, or by the Act of Parliament, which gives the Religious houses and their Possessions to the Crown; for by that their Corporations are not dissolved: as was held in the Case of the Dean and Chapter of Norwich. Co. par. 3. 15 Ass. p. 8. 32 H. 8. Br. Corporations 78. But when the Religious persons were dispersed and had relinquished their Habit, Rule, and Order, for which they were Visitable, than their Corporation was utterly dissolved, and thereupon the Visitation ceases. And in this case they resembled a proxy due for Visitation to an Annuity for Counsel or some other Service to be done: if the Counsel or the Service be withdrawn, the Annuity determines. So if a Rent-charge be granted for a Way, stop the Way and the Rent-charge shall be stopped also, 9 Ed. 4. 19 15 Ed. 4. 2. 21▪ Ed. 3. 7. So where a Corodie is granted for certain Service to be done, the omission of the Service determines the Corody, 20 Ed. 4. fo. ult. It was also said, That the duty is not Annual but Contingent, and payable only upon every Visitation. And for the [Saving] they said, it was a Flattering Saving, which could not preserve the Proxies in being, which the Law had extinguished; as was held 14 Eliz. Dyer 313. That the tenors of the obits or Chauntry-Lands held of the Subjects are extinct by the Act of 1 Ed. 6. notwithstanding the Saving in the said Act, propter absurditatem: So the Proxies in this Case shall be extinct propter absurditatem. For as it is absurd, that the King should be subject to Attendance in respect of a Tenure: so it is absurd, that the King should be subject to Visitation, or to any duty in respect thereof. Of the same nature there are many save put in Walsingham's Case. Blow. Com. 563. which are there called Flattering save. As to the Second point it was objected, That the Bishop could not grant these Proxies to the King for two Reasons; the one drawn from the person of the King, the other from the person of the Bishop: (1) For the King, Admit that he were capable of such a Spiritual Office, as to be a Visitor of Religious persons, yet he shall not have Proxies, by reason of the Inconveniency and Indecency, and also for the Impossibility thereof; For it is neither Convenient nor Decent, that the poor Religious persons should bear the Charges of the King; And it is also Impossible, for by the Canon Law, Procuratio exhibenda est secundum qualitatem personae Visitantis; and the Majesty of the person of the King, and the grandeur of his Train such, that by presumption of Law no private person can bear his necessary charges, or make him entertainment answerable to the quality of his person. (2) For the Bishop, Although he may grant his Temporal possessions with the assent of his Chapter or Clergy, yet those duties which he hath by the prerogative of his Episcopal Chair, or as incident to his Spiritual Function, he may not grant; And they by the Rule of the Canon Law are of Three sorts, viz. (1) Subsidium Cathedrarium, which is a duty of Prerogative and Superiority. (2) Quarta Episcopalis, which was given to him for Reparation of Churches. (3) Procurationes, for his Visitation, as aforesaid, which is a perquisite or profit of his Spiritual Jurisdiction. As to the Third point, they said, That although a proxy is a Personal thing, payable only in respect of persons Visitable, yet admit that these Proxies are become Real, and that the Commandry and Rectory are charged with these Proxies, than the unity of possession doth extinguish them in the hands of the King, as a signory, Rent-charge, Common, and the like, are extinguished by the purchase of the terretenant, if he hath the like Estate in the Land, and in the thing which charged the landlord. And to this purpose was cited the Case of 2 H. 4. 19 a. where a Prior had an Annuity out of a Parsonage by Prescription; the Parsonage is after appropriate to the Priory, the Annuity is extinguimed for ever. But on the other side, it was answered by the King's Council, and Resolved by the Court, That the said Proxies were not extinguished by the dissolution of the said Religious houses, but were well preserved and saved to the Bishop; and the Bishop had well granted them to the King, and the unity of possession in the hands of the King made but a Suspension and no Extinguishment of the said Proxies. (1) As to the First point, it was first observed, that these Proxies had not their original in the primitive Church; for St. Paul, in visiting all the Churches which he had planted in Asia and Europe, demanded not any Proxies, but laboured with his own hands for his subsistence, lest he should be burdensome to the Churches. Yet long after this, the Canon Law, which declares that Proxies are due to Bishops in their Visitations, says, that it is agreeable to the doctrine of St. Paul, ut à quibus spiritualia recipimus, eisdem Temporaliae communicemus. Instit. Jur. Can. l. 2. c. de Censib. It was also observed, that that which we call proxy or Procuracy, is called by the Canonists, Procuratio, for that upon every Visitation the persons visitable procurant necessary Provisions for the Visitors; which Provisions at first were made in Victuals, viz. in Esculentis & Poculentis, but that was with moderation and temperance, Ne jejuniorum doctrinam rubentibus buccis praedicant; But afterwards, when the pomp and excess of Visitors required such provisions as were grievous and intolerable to the Churches and Religious houses, than every Church and such House was reasonably Taxed, and for that every proxy was reduced to a certain sum of money, payable yearly, in the nature of a Pension, to the Ordinary, who had power of Visitation de mero Jure, as is said 10 Eliz. Dyer 273. b. After the Procuration of Victuals was reduced to a certain sum, the Churches and Religious houses paid it to the ordinary yearly, albeit he made not any Visitation: And so the Rule of Cessante causa cessat effectus doth not hold in this case. These certain sums of money which come in lieu of Proxies, and retain the name of Proxies, are by ancient Composition made parcel of the certain and settled Revenues of the Bishop, do remain for ever, and are not subject to extinguishment. And at this day the King himself pays and allows Proxies out of all the Impropriations which he hath in his possession; for which reason in every Lease made by the King of a Rectory Impropriate, there is a Covenant on the Lessee's part, that he shall bear and pay all Proxies, Synodals, Pensions, etc. And as for the [Saving] in the Act of 33 H. 8. cap. 5. it is not an idle or Flattering Saving, but real and effectual: for it was agreed before, that these Proxies were in being at the time of making the Act, and are not extinguished by the Surrender of the Religious houses; for their Corporations are not dissolved till the Religious persons have relinquished their houses and are dispersed. And such things as were in being at the time of making the Act, may well be preserved and saved by the Act; albeit the things which were extinct before, cannot be revived by a Saving, without express words of Grant and Restitution. As to the Second point, it was Resolved, That the Proxies in their original nature being Duties payable for Visitation, are grantable to the King, and the King is capable of such a Grant, specially when the said duties are converted to a sum of money certain, in the nature of a Pension or Annuity. For by the Ancient Law of the Realm, the King had power to Visit, reform, and correct all Abuses and Enormities in the Church: And by the Statutes made in the time of King H. 8. the Crown was but remitted and restored to his ancient Jurisdiction, which had been usurped by the Bishop of Rome. 33 Ed. 3. tit. Aid del Roy 103, Reges sacro oleo uncti Spiritualis Jurisdictionis sunt Capaces. And Proxies are profits of the Jurisdiction, 10 H. 7. 18. Rex est mixta persona cum Sacerdote: So the King shall have Tithes by the Common Law, whereof no mere Lay-person was capable, 22 Assis. pl. 75. 21 H. 7. 1. The King himself may Visit his Free chapels and Hospitals, 8 Ass. p. 29. N. Br. 42. a. And Cassanae, in Catol. Glo. mund. par. 5. Cons. 24, citys a Text of the Canon Law, viz. Quod omnes Reges dicuntur Clerici, also another Text, which faith; Quod Causa Spiritualis committi potest Principi Laico. And whereas it was said, that in respect of the grandeur of the King and his Train, competent Proxies cannot be provided for him, and by consequence a Grant thereof cannot be made to him; that Objection is removed, in that the Proxies at the time of that Grant was reduced to certain reasonable sums of money. Also the Rule of the Canon Law was not rightly and fully cited before; for the Rule is, Procuratio exhibenda est secundum qualitatem personae visitantis, & substantiam Visitatorum. It was also Resolved, that the Bishop with the assent of his Clergy, might well grant the Proxies to the King, for that the Law hath qualified the person of the King to receive such a Grant, albeit it be such a Prerogative of the Bishop as may not be assigned to any other person: As the Creation-money of a Duke or Earl may be granted and surrendered to the King, although it can be granted to a Subject. Also the Proxies being now reduced to certain sums of money, and so made part of the certain settled and perpetual Revenue of the Bishop, may be granted by him as well as a part of the Tithes, or an Annuity, or any of his Rents, Services, or other Hereditaments Temporal. And as to the Third point it was also Resolved and Adjudged, That the Unity of Possession of the Proxies with the Rectories impropriate and religious Houses, out of which the Proxies are payable, do not extinguish the Proxies in the hands of the King, but suspends the payment of them tantum pro tempore, quousque, or until the King by his Grant shall sever the one from the other. To conclude, The Case of Tithes is parallel to the Case of Proxies, and agrees therewith in all points; For as Instruction was the cause of the payment of Tithes: So Visitation, which is ever accompanied with Instruction, Littl. ca de Frankalmoigne 30. b. was the cause of the Proxies. And as Tithes are now due and payable to lay-people which have purchased Impropriate Rectories, although they do not give any Instruction: So Proxies are due and payable to Ordinaries, out of the Impropriations and Religious houses dissolved, although their Visitation ceases. And as none can prescribe de non decimando, as is commonly held in the Common Law: So the Canon Law hath a Rule, Quod nulla est adversus Procurationem praescriptio. Inst. Jur. Canon. lib. 2. cap. de Censibus. Also Proxies, which resemble Tithes in other points, may be well compared to them in this point, viz, That they shall not be subject to extinguishment by unity of possession.   

CHAP. X.  
Of Diocesan Chancellors, Commissaries, Officials, and Consistories.  

1. A Description of the Office of such Chancellors, and how they differ from the Bishop's Commissaries.  
2. The Antiquity and necessary use of such Chancellors.  
3. What the Canons Ecclesiastical require touching their Office.  
4. Whether a Divine, that is not a Civilian, may be a chancellor?  
5. Where, and before whom the Bishop's Consistories are held.  
6. What is meant or intended by the word Consistory.  
7. The great Antiquity of the Bishop's Consistories.  
8. That Antiquity further confirmed and proved.  
9 The difference between Consistorium and Tribunal.  
10. Incidents to the chancellor's Office, as he is Oculus Episcopi.  
11. A short digression touching Administrators.  
12. The Laws and Canons touching Summoners.  
13. The Constitutions Provincial, what provision there touching this Office of Summoners.  
14. A judgement at Common Law in Action on the Case against an Apparitor or Summoner, for Citing a man wrongfully into the Ecclesiastical Court.  
15. What a Commissary is; how to be qualified; with the Precincts of his Jurisdiction.  
16. Whether a Commissary may Cite persons of several Parishes to appear at his Visitation-Court?  
17. A Case at Common Law touching a Commissary made by a Dean.  
18. Whether a mere Lay-person may be a Commissary or Official; Other points in Law touching that Office; and the Grant thereof.  
19 Sufficiency or Insufficiency, or other defects in Chancellors, Commissaries, etc. properly cognizable not in the Temporal, but Ecclesiastical Courts.  
20. The Office of Chancellorship (as to the Right of it) is held to be of Temporal, but (as to the Exercise thereof) of Ecclesiastical cognizance.  
21. Whether the Offices of Chancellor, Register, etc. in Ecclesiastical Courts, be within the Statute of 5 Ed. 6.   
(1.) THe Chancellor of a diocese is a Church-Lawyer, 
Stat. 32 H. 8. cap. 15.  or the Bishops-Lawyer, or that person who is Commissionated to be aiding and assisting to the Bishop in his Jurisdiction, not confined to any one place of the diocese, nor limited (as the Bishop's Commissaries are) only to some certain causes of the Jurisdiction; but every where throughout the whole diocese supplying the Bishop's absence, in all matters and causes Ecclesiastical within his diocese. By the Statute of 37 H. 8. c. 17. a Doctor of the Civil Law lawfully deputed, may exercise all Ecclesiastical Jurisdiction, and the Censures thereof. By this Chancellor the Bishop within his diocese keeps his Court according to the Ecclesiastical Laws, in all matters pertaining to his Jurisdiction, or otherwise relating more immediately to the Church or Government of the Clergy. As Bishops in their Episcopal audience have had in all Ages the cognizance of all matters Ecclesiastical, as well Civil as Criminal, within the Jurisdiction of their diocese: so they have ever had to that end their Chancellors, whom the Law calls Ecclesiecdici or Episcoporum Ecdici, persons experienced in the Civil and Canon Laws, to assist them in matters of judgement; and those whom we now call the Bishop's chancellors, are the very self same persons in Office, that anciently did exercise Ecclesiastical Jurisdiction under Bishops, and were called Ecclesiecdici. Papias per Gothofred in L. omnem, C. de Episc. & Cler. & in §. praeterea, ibid. Dr. Ridl. View, par. 2. cap. 2. sect. 3. Who (forasmuch as they have with them the Bishop's Authority every where within the diocese for matters of Jurisdiction, and in that the Bishops and They make but one Consistory) are called the Bishop's Vicar's General, both in respect of their Authority, which extendeth throughout the whole diocese, as also to distinguish them from the Commissaries of Bishops, whose Authority, as it is restrained only to some certain place of the diocese, so also to some certain causes of the Jurisdiction, limited unto them by the Bishops; for which reason the Law calls them Officiales Foraneos, quasi Officiales astricti cuidam foro Dioeceseos tantum. Dr. Ridl. ibid.  
(2. Dr. Ridley in his View of the Civil and Ecclesiastical Law says, that Chancellors of dioceses are nigh of as great Antiquity as Bishops themselves, and are such necessary Officers to Bishops, that every Bishop must of necessity have a Chancellor; and that if any Bishop should seem to be so complete within himself, as not to need a Chancellor, yet the Archbishop of the Province, in case of refusal, may put a Chancellor, on him, in that the Law presumes the Government of a whole diocese a matter of more weight, than can be well sustained by one person alone; and that although the Nomination of the chancellor is in the Bishop, yet his Authority is derived from the Law. Hostiens. Sum. de Offic. Vicar. nu. 2. For which reason the Law understands him as an Ordinary, as well as the Bishop. Hostiens. ibid. It is most probable, that the multiplicity and variety of Ecclesiastical Causes introduced the use and Office of Chancellors originally; for after that Princes had granted to Ecclesiastical persons their Causes and their Consistories, and Circumstances varying these Causes into a more numerous multiplication, than were capable of being defined by like former precedents, necessity called for new Decisions, and they for such Judges as were experienced in such Laws as were adapted to matters of an Ecclesiastical Cognizance; which would have been too prejudicial an Avocation of Bishops from the exercise of their more Divine Function, had not the office of the Chancellor in determining such matters, been an expedient to prevent the said prejudice or inconvenience.  
(3.) By the Constitutions and Canons Ecclesiastical 
a Ed●●. 1603. Can. ●19, 120 121. 123, ●24. 127.  it is Ordered, That upon the days of the Visitation every Chancellor, Archdeacon, Commissary and Official, as also at the ordinary time when churchwardens are Sworn, shall deliver them such Books of Articles as whereon to ground their Presentments. Also, that they shall not suffer any to be cited into Ecclesiastical Courts by any General process of Quorum Nomina; nor the same person to be cited into several Ecclesiastical Courts for one and the same Crime, for which end the chancellor and Archdeacon are within one month next after the Bishop's Visitation, mutually to certify each other under their Hands and Seals, the Names and Crimes of all such as were Presented in the said Visitation. Nor shall any Chancellor, or other Ecclesiastical Judge, suffer any Judicial Act to be sped otherwise than in open Court, or in presence of the Register, or his Deputy, or other person by Law allowed to speed the same; nor shall have (without the Bishop's consent) any more Seals of Office than one. Nor shall any man be admitted a Chancellor, or to exercise any Ecclesiastical Jurisdiction, under the age of 26 years, and learned in the Civil and Ecclesiastical Laws, and is at least a Master of Arts, or Bachelor of Law, and shall first have taken the Oath of Supremacy in the Bishop's presence, 
Edit. 1562.  or in open Court, and have subscribed the Articles of Religion, and swear that to the utmost of his understanding he will deal uprightly and justly in his Office, without respect, favour, or reward.  
(4.) Sutton Chancellor of the Bishop of Gloucester moved for a Prohibition to stay a Suit before the Commissioners Ecclesiastical, for that Articles were there exhibited against him, because he being a Divine, and having a Rectory with Cure of Souls, and never brought up in the Science of the Civil or Canon Laws, or having any Intelligence in them, took upon him the Office of the Chancellor of the Bishop of Gloucester, whereas there were divers Canons and Ecclesiastical Constitutions, and also directions from the late King James, and from the King that now is, That none should be admitted to have those Offices of Chancellorship to a Bishop, unless he were instructed and learned in the Canon and Civil Laws; because divers Cases triable in the said Court are of weight, and the Judges there ought to have knowledge of the Laws, otherwise they cannot administer Right to the King's Subjects. Upon these Articles Mr. Sutton being examined, confessed that he was a Divine, and had a Spiritual Living, and that the Office of the Chancellorship of the Bishop is grantable for life, and that such a Bishop of Gloucester had granted to him the Office for his life, which the Dean and Chapter had Confirmed, whereby he had a Freehold therein, and aught to enjoy it during his life. And that notwithstanding this Answer they intended to proceed against him, wherefore he prayed to have a Prohibition, but the Court denied it; for if he be a person unskilful in these Laws, and by Law ought not to enjoy it, they may peradventure examine that; for although a Lay-person, by his Admission and Institution to a Benefice hath a Freehold, yet he may be sued in the Spiritual Court, and deprived for that Cause; but if he hath wrong, he may peradventure by Assize try it; therefore a Prohibition was denied 
b Hill. 2 Car. C. B. Sutton's Case. Cro. Rep. Vid. dict. Case in Latch. Rep. .  
(5.) The Consistory Court of each Archbishop, and every Bishop of every diocese within this Realm, is holden before the Bishop's Chancellor in the Cathedral Church, 
Vid. Litt. Sect. 133. 136. 648.  or before his Commissary in places of his diocese far remote and distant from the Bishop's Consistory, so as the Chancellor cannot call them to the Consistory with any conveniency or without great travel and vexation; 
24 H. 4. c. 12.  for which reason such Commissary is called Commissarius Foraneus. From these Consistories the Appeal is to the Archbishop of either Province respectively.  
(6.) By this word [Consistory] is commonly understood that place or Ecclesiastical Court of Justice, held by the Bishop's Chancellor or Commissary in his Cathedral Church or other convenient place of his diocese, for the hearing and determining of matters and Causes of Ecclesiastical cognizance, happening within that diocese 
c Vid. Litt. ibid. Vid. Co. Inst. p. 4. fol. 338. . But when this word refers to the Province of Canterbury, than the chief and most ancient Consistory is the Archbishops high Court of Arches, as the Court of Appeal from all other inferior Consistories within the said Province. The same word sometimes refers to a Synod or Council of Ecclesiastical persons convened together, or to a session or Assembly of Prelates; but most usually to the Spiritual Court for the deciding of matters of Ecclesiastical cognizance. The word Consistory (Consistorium) is supposed to be borrowed of the Italians, or rather Lombard's, signifying as much as (Praetorium) or Tribunal, being a word utriusque juris, and frequently used for a Council-house of Ecclesiastical persons, or the place of Justice in the Court Christian 
d C●wel. Interp. verb. Consistory. .  
(7.) The Consistories of Archbishops and Bishops are supposed to begin within this Realm in the time of William the conqueror 
e Co. Instit. par. 4. cap. 53. fo. 259. & cap. 74. fo. 338. ; which seems very conjecturable from that Charter of his, which Sir Ed. Coke in the fourth part of his Institutes mentions to have found Enrolled, 2 R. 2. nu. 5. 
f Pro Decano & Capitulo Ecclesiae ●eat. Mariae de Lincoln. . Which Charter, and Record of great Antiquity, asserting not only the Episcopal Consistories, but also the Ecclesiastical Jurisdiction, it cannot be supposed but that it ought to be recited here in terminis per extensum, viz.  
Willielmus gratia Dei Rex Anglorum, Comitibus, Vicecomitibus & omnibus Francigenis, & quibus in Episcopatu Remigii 
g This Remigius was the first Bishop of Lincoln; th● See being removed from Dorchester to Lincoln.  terras habentibus, salutem. Sciatis vos omnes, & caeteri mei Fideles qui in Anglia manent, quod Episcopales Leges, quae non bene, nec secundum Sanctorum Canonum Praecepta usque ad mea tempora in Regno Anglorum fuerunt, Communi Concilio & Concilio Archiepiscoporum meorum & caeterorum Episcoporum, & Abbatum, & omnium Principum Regni mei Emendandas judicavi. Propterea Mando, & Regia authoritate Praecipio, ut nullus Episcopus vel Archidiaconus de Legibus Episcopalibus amplius in Hundretto 
h In Turno, ita Co. ubi sup.  Placita teneant, nec causam, quae ad Regimen animarum pertinet, ad Judicium Secularium hominum adducant; sed quicunque secundum Episcopales Leges de quacunque causa vel culpa interpellatus fuerit, ad locum, quem ad hoc Episcopus elegerit, & nominaverit, veniat, ibique de causa sua respondeat, & non secundum Hundrettum 
i This is not intended of the Hund●ed Court, but that in these times the Sheriff did h●ld his turn per H●●dreda. Ita Co. ubi s●pr. vid. Mag. Chart. cap 35. & exposed. Co. thereon. , sed secundum canon's & Episcopales Leges Rectum Deo & Episcopo suo faciat. Si vero aliquis per superbiam elatus ad Justitiam Episcopalem venire non voluerit, vocetur semel, & secundo, & tertio; quod si nec sic ad emendationem venerit, Excommunicetur: &, si opus fuerit, ad hoc vindicand' fortitudo & Justitia Regis vel Vicecomitis adhibeatur: Ille autem qui vocatus ad Justitiam Episcopi venire noluit, pro unaquaque vocatione legem Episcopalem emendabit: hoc etiam Defendo, & mea authoritate interdico, ne ullus Vicecom. aut praepositus, aut minister Regis, nec aliquis Laicus homo de Legibus quae ad Episcopum pertinent se intromittat: nec aliquis Laicus homo alium hominem sine Justitia Episcopi ad Judicium adducat; Judicium vero in nullo loco portetur nisi in Episcopali Sede, aut in illo loco quem ad hoc Episcopus constituerit  
(8.) For the Confirmation of this Charter Sir Ed. Coke in the foresaid part of his Institutes refers us to the Register of the Bishop of London. Willielmus Dei gratia Rex Anglorum R. Bainardo, & S. de magna Villa P. the Vabines, caeterisque meis Fidelibus de Essex & de Hertfordshire, & de Middlesex, Salutem. Sciatis vos omnes, etc. In which Charter the Tenor of the foresaid Charter is recited word by word in English. The like Charter he also there says is in the Book of Charters of the Archbishop of Canterbury. Whereby it is most evident, that the Bishop's Consistories are of great Antiquity, and that they were erected when Causes Ecclesiastical were removed from the turn (which is a Court of Record holden before the Sheriff) to the Consistory 
k Co. Instit. 4 par. cap. 53. fo. 260. . So that this Law, made by the Conqueror, seems (as Mr. Blount in his Nomo-Lexi●on on this word well observes) to give the Original of the Bishop's Consistory, as it now sits with us distinct and divided from the Hundred or County-Court, wherewith it seems probable, in the time of the Saxons, to have been joined 
l Vid. Seld. Hist. of Tithes, p. 413, 414. .  
(9) Lindwood in the Provincial Constitutions upon this word Consistorium quoad Episcopos, puts this difference between Consistorium and Tribunal: Tribunal (says he) est Locus in quo sedet Ordinarius inferior; but Consistorium est Locus in quo sedet princeps ad Judicandum; Lindw. de foro Competent. c. excussis. in ver. Consistoria. Albeit, according to the vulgar acceptation of these words, we refer Tribunal to any place of Judicature, but Consistorium to that only which is of Ecclesiastical Jurisdiction.  
(10.) This Chancellor of a diocese, as he is Oculus Episcopi, aught to have an eye into all parts of the diocese, and hath immediately under the Ordinary Jurisdiction of all matters Ecclesiastical within the same; not only for reformation of Manners, and punishment of Enormities of a Spiritual nature by Ecclesiastical Censures; but also in Causes Matrimonial, and Testamentary as to the Probat of Wills, and granting Letters of Administration of the Goods of a person dying Intestate, where there are not Bona Notabilia; In which case the Will shall be proved, or Administration granted by the Prerogative of the Archbishop: And wherever there is an Administration duly granted, there the Administrator doth almost in all points represent the person of the Intestate as legally, as any Executor can the person of his Testator Testamentarily. For this Administrator, in construction of the Common Law, is that person to whose trust, care, conduct, and management the Goods and Chattels, Real and Personal, of the Intestate are committed by the Ordinary, or such other as under him is duly Authorized to grant the same. But under this Notion or Appellation of Administrator, neither the Civil nor the Canon Law knows any such Officer; only they take notice of Administrators as governors of Persons, Places, or Things. Decret. Can. 23. q. 5. cap. 26. & Extra. Com. cap. 11. And it is most probable, that the Common Law might (as some conceive) take its light, as to this Officer under this notion as now practicable with us, from the Constitution of the Emperor Leo. I. 28. nulli licere, C. de Episc. & Cler. whereby it is Ordained, That the Bishop shall take care to see such Legacies duly performed, as are bequeathed for the Redemption of Captives, in case the Testator appoint not one to execute his Will in that particular. This power given to the Ordinary of making Administrators in case of Intestation, and of authorising them to act as Executors, is very ancient by the Statute-Law 
m Westm. 2. An. 13 Ed. 1. cap. 19 & 31 Ed. 3. c. 1●. & 21 H. 8. cap. 5. . And if any Ordinary, Chancellor, etc. having power by the Act of 21 H. 8. to grant the Administration of the goods of him that dieth Intestate, to the Widow or next of Kin, shall take any Reward for the preferring any person before another to the Administration, it is Bribery 
n Co. I●st. par. 3. c. 68 Vid. 2 R. 2. Rot. Parl. nu. 46. .  
(11.) A lawful Administrator may render his own Goods liable to the Intestates Debts either by a Devastavit, or by a False Plea Judicially; and his Executor or Administrator shall not succeed him in the Administration to his Intestate (unless qualified to require Administration of both Intestates) but the Administration of the first Intestates goods is de novo to be committed to his next of Kin, as de bonis non Adm. And if a Stranger by any Act make himself Executor the son tort, the Creditors and Legataries may not sue him as Administrator, albeit it be an Administration in Fact, but must sue him as Executor in his own wrong; who notwithstanding is not any further liable, than to the value of the Deceased's Goods, as Assets in his hands. But in case the Ordinary shall, without granting any Letters of Administration, make his Letters Ad Colligendum, in that case he makes himself liable to Actions pro tanto, as if himself were actually possessed of the Goods of the deceased. And here Note, That Funeral expenses, according to the degree and quality of the Deceased, are to be allowed of his Goods before any debt or duty whatsoever, for that is Opus pium, or Charitativum 
o Co. Inst. par. 3. cap. 97. .  
(12.) And as in these Consistories there is a great variety of Ecclesiastical Causes heard and determined, so also the Officers belonging thereto are many, and of various qualities and degrees, whereof some seem to be magis principales, others minus principales, but others (in the popular account) as mere Animalia tantum Rationalia, by whom they understand Apparitors, who in truth are Summoners, and whose Character in Law is this, viz. He is that person, whose employment is to serve such Processes as issue out of the Spiritual or Ecclesiastical Courts, and as a Messenger to Cite Offenders and others to make their appearance therein as occasion shall require. By the Statute of 21 H. 8. c. 5. as also by the 138th Canon of the Ecclesiastical Constitutions, Apparitors are called Summoners or summoners; by which Canon the Abuses and Grievances pretended to be practised by such Summoners or Apparitors are sufficiently redressed: For as the multitude of them is thereby abridged and restrained by Decreeing and Ordaining, That no Bishop or Archdeacon, or their Vicars or Officials, or other inferior Ordinaries, shall depute or have more Apparitors to serve their Jurisdictions respectively, than either they or their Predecessors were accustomed to have Thirty years before the publishing the said Ecclesiastical Constitutions: So it is likewise provided by the said Canon, That the said Apparitors shall by themselves faithfully execute their Offices, and not by any colour or pretence whatsoever cause or suffer their mandates to be executed by any Messengers or Substitutes, unless upon some good cause, to be first allowed and approved by the Ordinary of the place. It is also further Provided by the said Canon, That they shall not take upon them the Office of Promoters or Informers for the Court, nor shall exact more or greater Fees than are prescribed by the 135th Canon of the said Ecclesiastical Constitutions. And in case either the number of Apparitors deputed shall exceed the aforesaid Limitation, or any of them offend in any of the premises, the persons deputing them (if they be Bishops) shall upon Admonition of their superior, discharge the persons exceeding the Number so limited as aforesaid: But if they were deputed by inferior Ordinaries, such Ordinaries shall be suspended from the execution of their Office, until they have dismissed the supernumerary Apparitors by them so deputed; and the parties themselves so deputed shall for ever be removed from the Office of Apparitors: And in case being so dismissed and removed, they do not desist from the execution of their said Offices, they are by the first said Canon to be proceeded against and punished by Ecclesiastical Censures as persons contumacious to the Jurisdiction. And finally, if upon experience the number of the said Apparitors be too great in any one diocese, in the judgement of the Archbishop of Canterbury for the time being; in that case he is by the said Canon impower'd to abridge them to such a number, as to himself shall seem meet and expedient.  
An Apparitor came to the Church of a Parson, 
R●yner and Parker's Case▪ more's Rep.  and said to him, He is to pay Tenths to such a one at such a place, four miles distant from the Church, to whom the Parson did not pay them, and thereupon the Bishop Certified, That he refused to pay them according to the Statute of 26 H. 8. It was Resolved, The Demand was not according to that Statute, and the Summons to pay them not according to the Statute, for the Demand aught to have been by one who hath authority to receive them, which the Summoner had not; And they held the Demand not good, although the Bishop certified it was duly made. And in the Case between the Queen and Blanch it was Resolved, That the Certificate of the Bishop, that the Incumbent refused to pay his Tenths, is not Peremptory, but Traversable; and that the Demand of the Tenths must be at the house of the Incumbent, and the Refusal there. More's Rep. 1225.  
In a Action upon the Case against the Defendant, 
Poel and Godfrey's Case. More's Rep.  the Case was this; A Summoner in the Ecclesiastical Court, having a Citation against the Plaintiff, Returned, That he had Summoned the Plaintiff, whereas in truth he never Summoned him; for which the Plaintiff was Excommunicated to his great damage. It was adjudged that the Action did lie.  
(13.) By the premises it is manifest, that the Canon is very strict and exact both in abridging the Number, and redressing the Abuses incident to the Office of Apparitors; which Canon in most Circumstances seems to run very parallel with that in the Provincial Constitutions, Lindw. Provin. Constit. de Censibus & Procur. cap. cum Apparitorum; the light whereof did probably influence it into that Form wherein we now find it; For by that Decree of the said Provincial Constitunions it is Ordained, That a Bishop shall have unum Apparitorem Equitantem duntaxat, where the Gloss well observes, that by this non prohibetur Episcopo quin plures habeat pedites; And every Archdeacon one in every Deanary, non Equitantem sed peditem, where the Bishop might also appoint Apparitors, as also in Rural deaneries: Gloss. ibid. verb. Duntaxat. And in case more than these were Deputed, or they found to offend in their Office, the Penalty was as abovesaid, Deputantes sint suspensi, donec, etc. & Deputatos ab Officio Apparitorum perpetuo suspendimus ipso facto. Constit. ibid.  
(14.) Action upon the Case; For that the Defendant being an Apparitor under the Bishop of Exeter, maliciously and without colour or cause of suspicion of Incontinency, of his own proper malice, procured the Plaintiff Ex Officio, upon pretence of Fame of Incontinency with one Edith (whereas there was no such Fame, not just cause of Suspicion) to be cited to the Consistory Court of Exeter, and there to be at great charges and vexation, until he was cleared by Sentence, which was to his great discredit, and cause of great expenses and Losses, for which, etc. upon Not guilty pleaded, and found for the Plaintiff it was moved by Ashley, Serjeant, in Arrest of judgement, That in this Case an Action lies not: For he did nothing but as an Informer, and by virtue of his Office. But all the Court (absent Richardson) held, That the Action well lies: For it is alleged, That he falso & malitiose caused him to be Cited, upon pretence of Fame where there was no offence committed: And avers, That there was not any such Fame; so as he did it maliciously, and of his own head, and caused him to be unjustly vexed, which was to raise gain to himself; whereupon they conceived, That he being found guilty for it, the Action well lies; And therefore Rule was given to enter judgement for the Plaintiff, unless other cause was shown. And upon a second motion, Richardson Ch. Justice being present, judgement was given for the Plaintiff 
p Hill. 7. Car. rot. 1147. B. R. Carlion vers. Mill. Cro. Rep. . The Consistory of the Bishop may in some Cases enjoin Penance: Where Penance is enjoined, there may be Commutation; but there may not be Commutation for Penance, where none is enjoined. Commutation for Penance agrees with the customs used in the Ecclesiastical Law, justified in the Common Law, in the Statute of Circumspect agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker 's Case in Camera Stellata. rolls Rep.  
(15.) Commissary [Commissarius] is a Title of Ecclesiastical Jurisdiction, adapted to such one as doth exercise the same in such remote places of the diocese, and at such distance from the Bishop's chief Consistory, as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the same. The duty of such Commissary or Officialis F●ranei, is to officiate the Bishop's Jurisdiction in the remoter parts of the diocese, or in such Parishes as are the Bishop's peculiar, and exempt from the Archdeacon's Jurisdiction. The Authority of the Commissaries of Bishops is only in some certain place of the diocese, and some certain causes of the Jurisdiction, limited unto them by the Bishops; for which reason the Law calls them Officiales Foraneos, quasi Officiales astricti cuidam foro Dioeceseos tantum: Gloss. in Clem. de Rescript. And by the Canons and Constitutions Ecclesiastical, no person may be a Commissary or Official under the Age of 26 years, being at least a Master of Arts or Bachelor of Law 
q Can. 127. . Yet in the Argument of Buries Case for a Divorce, the 5 Rep. 98. there was cited 35 Eliz. B. R. rot. 605. That if a layman be made a Commissary by the Bishop, it is good, until it be undone by Sentence; although that the Canon says, That he ought to be a Doctor or a Bachelor of Divinity. But 21 H. 8. hath limited, That a Doctor of the Civil Law may be a Commissary 
r Burye's Case. Noy Rep. .  
(16.) Where a Commissary, citing many persons of several Parishes to appear at his Visitation-Court, Excommunicated them for not Appearing, a Prohibition was granted, because the Ordinary hath not power to cite any to that Court, but the churchwardens and Sides-men, and those he may Impannel, and give Articles to them, for to inquire as the Justices of Assize. Vid. N. B. 41. 
s Vid. Noy Rep. post Case Coke verse. Wall. .  
(17.) The Dean of the Deanary of Wolverhampton annexed to the Deanary of Windsor, being a Peculiar, and having Ordinary Jurisdiction, makes a Commissary by his Deed, which is Confirmed by the Chapter: The Dean dies. The question was, if that was good to bind his Successor. By Doderidge, That such a Jurisdiction is Judicial, and that Grant is but a Commission and Authority, all times remaining in the Ordinary. True it is, That Ecclesiastical Jurisdiction in Judicial Acts may be executed by a Substitute; but in Law they are the Acts of them who Substitute the other. Vid. 11 H. 4. 64. a. 7 E. 4. 14. 20 H. 6. 1. That a Commissary may Excommunicate, and prove a Testament: But that shall be made in the name of the Ordinary, 20 E. 3. And a Grant of that by the Bishop is not good, but during his life; and shall not bind the successor: For the Law hath appointed, that he shall exercise that Jurisdiction (Seed vacant, etc.) The Grant being void, cannot be made good by the Confirmation of the Chapter. Coke Chief Justice; If that should be a good grant to bind the Successor, than the Successor cannot remove him; And yet the Successor shall answer for the Acts and Offences of the Commissary, which would be too hard 
t The Prebend of Hateberlies' Case. Noy Rep. .  
(18.) In Walker's Action upon the Case against Sir John lamb, For disturbance of the Plaintiff in exercising of the Officialty of the Archdeaconry of Leicester, granted by the Archdeacon of Leicester, and of the Office of Commissary of the Bishop of Lincoln. Upon Not guilty pleaded a special Verdict was found, That there were Ancient offices granted by, 
Whether the Office of a Commissary may be granted to a Lay-person.  etc. and Offices of Judicature always granted to one person for life until 1609, and in 30 Eliz. so granted to Dr. Chippindale, and after in 1609 granted to him and one Ed. Clerk for their Two lives, no Surrender being actually made by Dr. Chippendale. Afterwards, 1614 both Offices were granted, the one by the Archdeacon, the other by the Bishop to Sir Jo. lamb, and to the said Ed. Clerk, and these Grants confirmed by the Dean and Chapter; That in An. 1622. Dr. Chippendale died, and afterwards the Archdeacon who granted that Office, and the Bishop who granted the Office of Commissary, died; and the Bishop of Lincoln who now is, and the now Archdeacon, by several Patents granted these Offices to the Plaintiff, who was at the time of the Grant of the Patent a Lay-person, and Bachelor of the Civil Law only: And they find the Stat. of 37 H. 8. c. 17. That lay-people married or unmarried, being Doctors of the Civil Law, may be Commissaries, Officials, Scribes, or Registers, and that the Plaintiff exercised these Offices, and the Defendant disturbed him. Upon this the matter being argued at the Bar, was reduced only to these Two Questions: (1) Whether the Patent to the Plaintiff, being a Lay-person, and not a Doctor of the Law, were good, or restrained by the Statute of 37 H. 8. And as to that point all the Court conceived, The Grant was good, for the Statute doth not restrain any such Grant: And it is but an affirmance of the Common Law, where it was doubted, if a Lay or Married person might have such Offices; and to avoid such Doubts this Statute was made; which explains, That such Grants are good enough; and it is but an Affirmative Statute, and there is no restriction therein: And although Doctors of the Law (though lay-people or Married) shall have such Offices; yet this is not any restriction, That none others shall have them but Doctors of the Law, and the Statute mentions as well Registers and Scribes, as Commissaries, and that a Doctor of the Law shall have them; yet in Common experience such persons as are merely Lay, and not Doctors, have enjoyed such Offices. And for this very point was a Case in this Court, Hill. 35 Eliz. Rot. 181. between Prat and Stock, where, upon Demurrer, this Statute was pleaded against the Plaintiff, to whom a Commissaryship was granted, being but a Bachelor of Law; and he having granted Administration, the Grant was adjudged good, and the Book of Entries, 484, & 489. was allowed good; wherefore they Resolved the Grant was well enough. And it was also Resolved, That where an Officer for life accepts of another Grant of the same Office to him, and to another, it is not any Surrender of the first Grant. The Second point was, Whether the office of the Officialty of the Archdeaconry, and the office of the Commissary of the Bishop, be grantable by the Statutes of 1 Eliz. and 13 Eliz. because it was pretended, they were not parcel of the Possessions of the bishopric or Archdeaconry, so as they could have any profits by them, and then the Statute doth not restrain the Grants of them. But all the Court Resolved, They were within the words and intent of the Statutes; for they be Hereditaments, and are pertaining unto them; And that a Grant of these Offices to Two, where they were only grantable to One for life, and being granted in Reversion, it is a void Grant by the Statutes against the Successors; For the Statutes restrain all Grants of any thing to be avoidable against the Successor, besides Grants of necessity and Leases for Three lives, or 21 years, where the ancient Rent is reserved: And all other Grants, as well of Offices as of other things, not warranted by the Statutes, are made void as against the Successors, Vid. Coke 10. foe 60. the Bishop of Salisbury's Case, Coke 5. foe 14. and a Case betwixt Vaughan and Crompton, 14 Jac. at the Assizes before the Justices of the Assize for the Office of the Registership in Suffolk, and between Johns and powel for the Registers place of Hereford, where it was Adjudged, That such Offices granted in Reversion were void: whereupon Rule was given, That judgement should be entered for the Plaintiff, unless other cause were shown. And afterward being moved again, judgement was given for the Plaintiff 
u Trin. 7 Car. rot. ●74. Wal●er vers. Sir J. lamb. Cro. Rep. .  
(19) Noy Attorney Reports the foresaid Case of Dr. Sutton in this manner, viz. That he was deprived of the office of Official of Gloucester by the Commissioners 3 Jac. appointed to examine the defects of Chancellors, and that he was not read in the Canon or Civil Law. He said, That time out of mind, etc. the Bishops have used in their dioceses to bestow the Chancellorship, and that A. the Bishop of, etc. had made him Chancellor by Deed; and that was Confirmed by the Dean and Chapter, by which he had a franktenement in that Office, etc. And Mr. Glanvile moved for a Prohibition, but it was denied by the Court; for it is lawful for the Commissioners to deprive for Insufficiency, that being within their Commission; But in a Suit in the Ecclesiastical Court for the Profits of that Office, supposing the Grant of that by the Predecessor does not bind the Successor; as it was in Dr. Barker's Case, there a Prohibition shall be awarded, because the profits are Temporal. But we in the first Case cannot try the Sufficiency: 
Pasch 3 Car. B R. Dr. Suton's Case, in N●y's Rep.  Vid. 8 E. 3. 70. 9 E. 3. 11. So it is if the Ordinary deprive the Master of a Lay-Hospital, for there he is not a Visitor, nor is it Visitable by him; But otherwise of a Spiritual Hospital.  
(20.) The Bishop of Landaff granted the office of his Chancellorship to Dr. Trevor and one Griffin, to be exercised by them either jointly or severally. Dr. Trevor for 350 l. released all his Right in the said Office to Griffin, so that G. was the sole Officer, and then after died. After this the Bishop grants the said Chancellorship to R. (being a practitioner in the Civil Law) for his life. Dr. Trevor surmising, that himself was the sole Officer by Survivorship, made Dr. Lloyd his Substitute to execute the said office for him, and for that, that he was disturbed by R. the said Dr. Trevor being Substitute to the Judge of the Arches, granted an Inhibition to inhibit the said R. from executing the said Office. The Libel contained, That one R. hindered and disturbed Dr. Lloyd, so that he could not execute the said Office. Against these proceed in the Arches a Prohibition was prayed, and day given to Dr. Trevor to show cause why it should not be granted. They urged, that the Office was Spiritual, for which reason the discussing of the Right thereof appertaineth to the Ecclesiastical Courts. But all the Judges agreed, That though the Office was Spiritual, as to the Exercising thereof, yet as to the Right thereof it was Temporal, and shall be tried at the Common Law, for the party hath a Freehold therein. Vid. 4 & 5 P. & M Dyer 152. 9 Hunt's Case, for the Registers Office in the Admiralty, and an Assize brought for that: And so the Chief Justice said, was Adjudged for the Registers Office to the Bishop of Norwich in B. R. between Skinner and Mingey, which ought to be tried at the Common Law. And so Blackleech's Case, as Warburton said, in this Court for the office of Chancellor to the Bishop of Gloucester, which was all one with the principal Case. And they said, That the office of Chancellor is within the Statute of Ed. 
Hill. 1610. 8 Jac. B. R. Robotham vers. Trevor. Brownl. Rep. pa. 2.  6. for buying of Offices, etc. And so in the manner of Tithing, the Prescription is Temporal, for which cause it shall be tried at Common Law. And Prohibition was granted according to the first Rule. So that if a Bishop grant the office of Chancellorship to A. and B. and after A. release to B. and after B. die, and after the Bishop grant it to R. against whom A. sues in the Ecclesiastical Court, supposing his Release to be void, a Prohibition will lie, for that the office is Temporal as to the Right of it, though the office be Exercised about Spiritual matters. 
Pasch. 3 Car. B. R. Chancellor of Gloucester's Case. Resolved per curial, and Prohibition denied.  But if a Chancellor be sued in the Ecclesiastical Court to be deprived for Insufficiency, as not having knowledge of the Canon Law, no Prohibition lies, for that they are there the proper Judges of his ability, and not the Judges of the Common Law.  
(21.) In Dr. Trevor's Case, who was Chancellor of a Bishop in Wales, it was Resolved, That the Offices of Chancellor and Register, etc. 
Hill. 8. Jac. Dr. Trevor's Case. Coke lib. 12.  in Ecclesiastical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers, etc. and advancement of Worthy persons, shall be expounded most beneficially to suppress Corruption. And because it allows Ecclesiastical Courts to proceed in Blasphemy, heresy, Schism, etc. Loyalty of Matrimonies, Probat of Wills, etc. And that from these proceed depends not only the Salvation of Souls, but also the Legitimation of Issues, etc. and other things of great consequence; It is more reason that such Officers shall be within the Statute, than Officers which concern Temporal matters; The Temporal Judge committing the Convict only to the Gaoler, 
Co. ibid.  but the Spiritual Judge by Excommunication, Diabolo: And there is a Proviso in the Statute for them. And it was Resolved, That such Offices were within the Purview of the said Statute.   

CHAP. XI.  
Of Courts Ecclesiastical, and their Jurisdiction.  

1. The Antiquity of the Ecclesiastical Laws of England; and what the Chief Ecclesiastical Courts are in general, anciently called Halimots; The Original of the Pope's usurpation in England.  
2. The Court of Convocation; and Constitutions of Claringdon.  
3. The High Court of Arches, why so called; the highest Consistory; the Jurisdiction thereof.  
4. The Judge of this Court, whence called Dean of the Arches.  
5. The great Antiquity of this Court; the Number of Advocates and Proctors thereof Anciently limited; their decent Order in Court.  
6. The Prerogative Court of Canterbury.  
7. The Court of Audience, to whom it belonged, where kept, and what matters it took cognizance of.  
8. The Court of Faculties, why so called, what things properly belong to this Court; As Dispensations, Licenses, etc. with the Original thereof in England.  
9 What the nature of a Dispensation is, and who qualified to grant it.  
10. A Dean made Bishop, the King may dispense with him to hold the Deanary with the bishopric by way of Commendam.  
11. Whether a Prohibition lies to the Ecclesiastical Courts, in case they do not allow of Proof by one Witness.  
12. Divers Cases at the Common Law relating to Prohibitions to the Ecclesiastical Courts.  
13. The Court of Delegates.  
14. The High Commission Court; what the Power thereof was.  
15. The Court of Review, or Ad Revidendum.  
16. The Court of Peculiars.  
17. In what Cases the Ecclesiastical Court shall have Jurisdiction of matters Subsequent, having Jurisdiction of the Original Suit.  
18. In what Case, the party having allowed of the Jurisdiction, comes too late to have a Prohibition.  
19 The difference between a Suit Ad instantiam partis, and that ex Officio Judicis, in reference to a General Pardon.  
20. Whether a Cle●k may strike his Servant, or another in that case the Clerk and be blameless?  
21. What manner of Avoidance shall be tried at the Common Law, and what in the Ecclesiastical Court.  
22. In what Case a special Prohibition was awarded in a Suit of Tithes after a Definitive Sentence.  
23. A Prohibition to the Ecclesiastical Court in a Suit grounded on a custom against Law.  
24. Prohibition awarded to the Ecclesiastical Court, upon refusal there to give a Copy of the Libel.  
25. Where the Ecclesiastical Court hath cognizance of the Principal, they have also of the accessary, though the accessary of matters Temporal.  
26. A Prohibition denied, upon a Suggestion, That the Ecclesiastical Court would not admit of proof by one Witness.  
27. In what case the Ecclesiastical Court shall have the Cognizance, albeit the bounds of a Village in a Parish come in question.  
28. How the Practice hath been touching Prohibitions, where the Subject matter in question hath been of a mixed nature in reference to Jurisdictions.  
29. Certain Reasons for denial of Prohibitions to the Ecclesiastical Court, in some Cases, where they might lie.  
30. Bounds of Parishes, in reference to the Tithes thereof, whether Tryable by the Law of the Land, or by the Law of the Church.  
31. Where the Question is, more touching the Right of Tithes, than the Bounds of the Parish, the Ecclesiastical Court hath had the cognizance.  
32. The Ecclesiastical Court hath cognizance of Administrators Accounts, and no Prohibition lies.  
33. Modus Decimandi sued for by a Parson in the Eccllesiastical Court, no Prohibition; Nor if he there sues for the Tithe of things not Titheable.  
34. In what cases a custom, as also a Rent, may be sued for in the Ecclesiastical Court.  
35. If Question be touching the Grant of a Registers Office in a Bishop's Court, or touching the Tenth after severance from the Nine parts; In what Court, whether Temporal or Ecclesiastical, it shall be tried.  
36. A Woman exercising the Profession of a Midwife without licence, is therefore sued in the Ecclesiastical Court; whether a Prohibition lies in that case.  
37. The Bounds of a Parish, also whether such a Church be Parochial or only a chapel of Ease; In what Court this is to be tried.  
38. A Prohibition granted, upon the disallowance of an Executors Plea, of having Assets only to pay Debts, in opposition to a Legacy sued for in the Ecclesiastical Court.  
39 A Prohibition awarded upon a Suit in the Ecclesiastical Court for an account of the Profits of a Benefice; Otherwise in case the Profits were taken during the time of a Sequestration.  
40. A Prohibition granted to a Party to stay proceed in his own Suit, and commenced by himself.  
41. Pensions are sueable only in the Ecclesiastical Court.  
42. The right of Tithes coming in question between the Parson and the Vicar, is a Suit properly belonging to the Ecclesiastical Court.  
43. Whether, and how far, and in what manner the Ecclesiastical Court may take cognizance of a Modus Decimandi, at large debated.  
44. When and how the Canon Law was introduced into this Realm.   
(1.) BEfore the time of King William the Conqueror all matters, as well Spiritual as Temporal, were determined in the Hundred-Courts, where was wont to sit one Bishop and one Temporal Judge called Aldermanus; the one for matters of Spiritual, the other of Temporal cognizance: But that was altered by King William (and it seems by Parliament, for it was by the assent of the Bishops, Abbots, and all the chief persons of the Realm) for he Ordained, That the Bishop or Archdeacon should not hold Plea of the Episcopal Laws, & quae ad Regimen animarum pertinent, in the Hundred; but by themselves, and there administer Justice, not according to the Law of the Hundred, but according to the Episcopal Laws and Canons, as appears by King William's Charter. 
rolls Abridg. verb. Prerogative, lit. L.  Irrot. 2. R. 2. pro Decano & Capitulo Eccles. Lincoln, Jan. Angl. 76, 77. The Principal Courts Ecclesiastical (whereof some are now out of use) were, and are the Convocation Court, the High Commission Court, the high Court of Arches, the Prerogative Court of Canterbury, the Court of Delegates, the Court of Audience, the Court of Peculiars, the Court of Faculties, besides the Bishop's Consistories, the archdeacon's Courts, and the like, anciently called Halimots, or holy Courts. And the Saxon Kings, long before William the Conqueror, made several Laws for the Government of the Church: Among others St. Edward gins his Laws with this Protestation, 
In the Case of Praemunire. Davis Rep.  that it is his Princely charge, Vt Populum Domini, & super omnia Sanctam Ecclesiam, regat & gubernet. And King Edgar, in his Oration to his English Clergy, Ego (saith he) Constantini, vos Petri gladium habetis: jungamus dextras, & gladium gladio Copulemus, ut ejiciantur extra castra Leprosi, & purgetur Sanctuarium Domini. But upon the Conquest made by the Normans the Pope took the opportunity to usurp upon the Liberties of the Crown of England; for the Conqueror came in with the Pope's Banner, and under it won the battle. Whereupon the Pope sent two Legates into England, with whom the Conqueror called a Synod, deposed Stigand Archbishop of Canterbury, because he had not purchased his Pall in the Court of Rome, and displaced many Bishops and Abbots to make room for his Normans. Among the rest the King having earnestly moved Wolstan Bishop of Worcester, being then very aged, to give up his Staff, was Answered by him, That he would give up his Staff only to him of whom he first received the same: And so the old Bishop went to St. Edward's Tomb, and there offered up his Staff and Ring with these words, viz. Of Thee, O holy Edward, I received my Staff and my Ring, and to thee I do now surrender the same again. Which proves, that before the Norman Conquest the Kings of England invested their Bishops per Annulum & Baculum. By this admission of the Pope's Legates, was the first step or entry made into his usurped Jurisdiction in England; yet no Decrees passed or were put in execution touching matters Ecclesiastical without the King's Royal Assent; nor would he submit himself in point of Fealty to the Pope, as appears by his Epistle to Gregory the Seventh, Vid. Da. Rep. Case of Praemunire, foe 89. yet in his next Successors time, in the time of William Rufus, the Pope by Anselme Archbishop of Canterbury attempted to draw Appeals to Rome, but prevailed not. Upon this occasion it was, that the King told Anselme, That none of his Bishops ought to be subject to the Pope, but that the Pope himself ought to be subject to the Emperor, and that the King of England had the same absolute Liberties in his Dominions as the Emperor had in the Empire. Yet in the time of the next King H. 1. the Pope usurped the Patronage and Donation of bishoprics, and all other Benefices Ecclesiastical; at which time Anselme told the King, That the Patronage and Investure of bishoprics was not his Right, 
Hist. For●alensis M. S. in Archiv. Rob. Cotton Eq. Aur.  because Pope Urban had lately made a Decree, That no Lay-person should give any Ecclesiastical Benefice. And after this in a Synod held at London, An. 1107. a Decree was made, Cui annuit Rex Henricus (says Matth. Paris.) that from thenceforth, Nunquam per donationem Baculi Pastoralis vel Annuli quisquam de Episcopatu vel Abbathia per Regem, vel quamlibet Laicam manum, investiretur in Anglia. Hereupon the Pope granted, That the Archbishop of Canterbury for the time being should be for ever Legatus Natus: And Anselme, for the honour of his See, obtained, That the Archbishop of Canterbury should in all general Councils sit at the Pope's foot, tanquam alterius Orbis Papa. Yet after Anselme's death, this same King gave the archbishopric of Canterbury to Rodolph Bishop of London (says Matth. Paris.) Et illum per Annulum & Pastoralem Baculum investivit, as before he had invested William Gifford in the bishopric of Winchester, contra novi Concilii statuta, as the same Author reporteth; And this, because succeeding Popes had broken Pope Vrban's promise, Touching the not sending of Legates into England; unless the King should require it. And in the time of the next succeeding King, Stephen; the Pope gained Appeals to the Court of Rome; For in a Synod at London convened by Hen. Bishop of Winchester, the Pope's Legate, it was Decreed, That Appeals should be made from Provincial Councils to the Pope. Before which time, Appellationes in usu non erant (saith a Monk of that time) donec Henricus Winton. Episcopus malo suo, dum Legatus esset, crudeliter intrusit. Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest (for of King William Rufus he could win nothing,) viz. upon the conqueror, the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes: Upon Hen. 1. the Donation and Investures of bishoprics and other Benefices: and upon King Stephen, the Appeals to the Court of Rome. And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power.  
(2.) The high Court of Convocation is called the Convocation of the Clergy, and is the highest Court Ecclesiastical, where the whole Clergy of both Provinces are either present in Person, or by their Representatives. They commonly meet and sit in Parliament-time; consisting of Two parts, viz. the Upper-house, where the Archbishops and Bishops do sit; and the Lower-house, where the inferior Clergy do sit. 
Convocation a Convocando by the King's Writ.  This Court hath the Legislative power of making Ecclesiastical Laws, is commonly called a National Synod, convened by the King's Writ, directed to the Archbishop of each Province, for summoning all Bishops, Deans, archdeacon's, Cathedrals, and Collegiate Churches, assigning them the time and place in the said Writ; But one Proctor sent for each Cathedral and Collegiate Church, and two for the Body of the inferior Clergy of each diocese may suffice. The higher House of Convocation, or the House of Lords Spiritual, for the Province of Canterbury consists of 22 Bishops, whereof the Archbishop is precedent; the Lower-house, or House of Commons Spiritual, consisting of all the Deans, archdeacon's, one Proctor for every Chapter, and two for the Clergy of each diocese, in all 166 persons, viz. 22 Deans, 24 Prebendaries, 54 archdeacon's, and 44 Clerks representing the Diocesan Clergy. Both Houses debate and transact only such matters as his Majesty by Commission alloweth, concerning Religion and the Church. 
8 H. 6. cap. 1●  All the Members of both Houses of Convocation have the same privileges for themselves and Menial Servants, as the Members of Parliament have. The Archbishop of York at the same time, and in the like manner, holds a Convocation of all his Province at York, constantly corresponding, debating and concluding the same matters with the Provincial Synod of Canterbury. The Antiquity of this Court of Convocation is very great, for (according to Beda) St. Augustine, An. 686. assembled in Council the Britain Bishops, and held a great Synod. The Clergy was never assembled or called together at a Convocation by other Authority, 
Coke, par. 4. Inst. cap. 74.  than by the King's Writ. Vid. Parl. 18 E. 3. nu. 1. Inter Leges Inae, An. Dom. 727. A Convocation of the Clergy called, Magna servorum Dei frequentia. The Jurisdiction of the Convocation is only touching matters merely Spiritual and Ecclesiastical, wherein they proceed juxta Legem Divinam & canon's Sanctae Ecclesiae. 
Ibid.  The Lord Coke citys some Ancient Records to prove, that the Court of Convocation did not meddle with any thing concerning the King's Temporal Laws of the Land, and thence infers, That the Statute of 25 H. 8. cap. 19 (whereby it is provided, That no Canons, Constitution, or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy, which were contrariant or repugnant to the King's Prerogative Royal, or the customs, Laws, and Statutes of this Realm) is but declaratory of the old Common Law. And by the said Act, the Court of Convocation, as to the making of new Canons, is to have the King's licence, as also his Royal Assent for the putting the same in execution. But towards the end of that Act there is an express Proviso, that such Canons as were made before that Act, which be not contrariant nor repugnant to the King's Prerogative, the Laws, Statutes, or customs of the Realm, should be still used and executed, as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court, which shall or may touch the King, his Heirs or Successors, the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given. Remarkable are the Constitutions of Claringdon in the time of King H. 
1 Eliz. cap. 1. Co. ubi supr.  2. occasioned by the Pope's claiming Exemption of Clerks from the Secular power, so contended for by Thomas Becket, than Archbishop of Canterbury, against the King, as occasioned a convening a Common Council, as well of the Bishops as of the Nobility, at Claringdon in the time of H. 2. wherein they revived and reestablished the Ancient Laws and customs of the Kingdom for the Government of the Clergy, and ordering of Causes Ecclesiastical. The principal Heads or Articles whereof were these, 
In the Case of a Praemunire. Davis Rep. foe 91.  viz. (1) That no Bishop or Clerk should departed the Realm without the King's licence; and that such as obtained licence, should give Sureties, That they should not procure any damage to the King or Realm during their absence in Foreign parts. (2) That all bishoprics and abbeys being void should remain in the King's hands as his own Demesns, until he had chosen and appointed a Prelate thereunto; and that every such Prelate should do his Homage to the King before he be admitted to the place. (3) That Appeals should be made in Causes Ecclesiastical in this manner, viz. From the Archdeacon to the Ordinary, from the Ordinary to the Metropolitan, from him to the King, and no farther. (4) That peter-pences should be paid no more to the Pope, but to the King. (5) That if any Clerk should commit Felony, he should be hanged; if Treason, he should be drawn and quartered. (6) That it should be adjudged High Treason to bring in Bulls of Excommunication, whereby the Realm should be cursed. (7) That no Decree should be brought from the Pope to be executed in England, upon pain of Imprisonment and Confiscation of Goods.  
(3.) Arches, 
So called in Stat. 25 H. 8. c. 19  or alma Curia de Arcubus, so called of Bow-Church in London, by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise, in which Church this Court was ever wont to be held, being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury; which Parish of Bow together with twelve others in London, whereof Bow is the chief, are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes, and exempted out of the Bishop of London's Jurisdiction. The Judge of this Court of Arches is styled the Dean of the Arches, or the Official of the Arches-Court, unto whose Deanary or Officialty to the Archbishop of Canterbury, in all matters and causes Spiritual, is annexed the Peculiar Jurisdiction of the thirteen Parishes, as aforesaid; Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal, as the superior Ecclesiastical Consistory, through the whole Province of Canterbury 
a Stat. 24 H. 8. c. 12. ; yet the Lord Coke says 
b Co. Inst. par. 4. §. Court of Arches. , his power to call any person for any Cause out of any part of his Province within the diocese of any other Bishop (except it be upon Appeal) is restrained by the Stat. of 23 H. 
23 H 8. cap. 9  8. c. 9 Yet his Jurisdiction is Ordinary, and extends itself through the whole Province of Canterbury, insomuch that upon any Appeal made to him from any diocese within the said Province, he may forthwith, without further examination (at that time) of the Cause, issue forth his Citation to be served on the Appealee, with his Inhibition to the Judge à quo.  
In Mich. 
Mich. 6 Jac. C. B. Porter and Rochester's Case. Co. lib. 13. & ult.  6 Jac. C. B. there was a Case between Porter and Rochester; The Case was this: Lewis and Rochester, who dwelled in Essex, in the diocese of London, were sued for subtraction of Tithes growing in B. in the said County of Essex, by Porter, in the Court of Arches of the Archbishop of Canterbury in London: where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes, called a Deanary, exempt from the Authority of the Bishop of London, whereof the Parish of S. Marry de Arcubus is the chief. And a great Question was moved, Whether in the said Court of Arches holden in London, he might cite any dwelling in Essex, for subtraction of Tithes growing in Essex? or whether he be prohibited by the Statute of 23 H 8. c. 9? Which after debate at Bar by Council, and also by Dr. Ferrard, Dr. James, and others in open Court, and lastly by all the Justices of the Common Pleas: A Prohibition was granted to the high Court of Arches. And, in this case, divers points were resolved by the Court; (1) That all Acts of Parliament are parcel of the Laws of England, and therefore shall be expounded by the Judges of the Laws of England, and not by the Civilians and Canonists, although the Acts concern Ecclesiastical Jurisdiction. (2) Resolved by Coke Chief Justice, Warburton, Daniel and Foster, Justices, That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9 to cite any one out of his own diocese: For Diaecesis dicitur distinctio, etc. quae divisa vel diversa est ab Ecclesia alterius Episcopatus, & Commissa gubernatio unius, etc. And is derived a Devil, Duo, & Electio, quia separat duas Jurisdictiones: And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London; for this cause it is fitly said in the Title, Preamble, and body of the Act, that when the Archbishop sitting in his Exempt peculiar in London, citys one dwelling in Essex, he citys him out of the Bishop of London's diocese; Therefore, out of the diocese. And in the clause of the penalty of 10 l. it is said, Out of the diocese, etc. where the party dwelleth; which agrees with the signification of diocese before. 2. The body of the Act is, No person shall be henceforth cited before any Ordinary, etc. out of the diocese or peculiar Jurisdiction, where the person shall be dwelling; and if so, then à Fortiori, the Court of Arches, which sits in a Peculiar, may not cite others out of another diocese. And the words [out of the diocese] are meant of the diocese or Jurisdiction of the Ordinary where he dwelleth. And from the Preamble of the Act the Lord Coke observes and infers, That the intention of the Act was to reduce the Archbishop to his proper diocese, unless in these five Cases, viz. (1) For any Spiritual offence or cause committed, or omitted, contrary to Right and Duty by the Bishop, etc. which word [omitted] proves there ought to be a default in the Ordinary. (2) Except it be in Case of Appeal, and other lawful cause, where the party shall find himself grieved by the Ordinary, after the matter there first begun; Therefore, it ought to be first begun before the Ordinary. (3) In case the Bishop or Ordinary, etc. dare not, or will not Convent the party to be sued before him. (4) In case the Bishop or Judge of the place, within whose Jurisdiction, or before whom the Suit by this Act should be begun and prosecuted, be party, directly or indirectly, to the matter or cause of the same Suit. (5) In case any Bishop or other inferior Judge under him, etc. make Request to the Archbishop, Bishop, or other inferior Ordinary or Judge; and that to be done in Cases only, where the Law Civil or Common doth affirm, etc. The Lord Coke takes notice also of Two Provisoes in that Act, which do likewise explain it; viz. That it shall be lawful for every Archbishop, to cite any person inhabiting in any Bishop's diocese in his Province for matter of heresy: By which (says he) it appears, That for all causes not excepted, he is prohibited by the Act. (2) There is a Saving for the Archbishop, calling any person out of the diocese where he shall be dwelling, to the probat of any: Testament: Which Proviso should be vain, if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province: Wherefore it was concluded, That the Archbishop out of his diocese, unless in the Cases excepted, is prohibited by the 23 H. 8. c 9 to cite any man out of any other diocese: which Act is but a Law declaratory of the Ancient Canons, and a true Exposition thereof, as appears by the Canon, Cap. Romana in Sext. de Appellat. & c. de Competenti. in Sext. And (as the Lord Coke observes) the Act is so expounded by all the Clergy of England, at a Convocation at London, An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester, That the Archbishop of this Realm, before that Act, had power Legantine from the Pope; By which they had Authority not only over all, but concurrent Authority with every Ordinary, etc. not as Archbishop of Canterbury, etc. but by his Power and Authority Legantine. Et tria sunt genera Legatorum, 
Case Porter and Rochester. Co. 〈◊〉 supr.  (1) Quidam de Latere Dom. Papae mittuntur, etc. (2) Dativi, qui simpliciter in Legatione mittuntur, etc. (3) Nati seu Nativi, qui suarum Ecclesiarum praetextu Legatione funguntur, & sunt Quatuor, viz. Archiepiscopus Cantuariensis, Eboracensis, Remanensis, & Pisanis: Which Authority Legantine is now taken away and utterly abolished.  
(4.) It is supposed, that the Judge of this Court was originally styled the Dean of the Arches, by reason of his substitution to the Archbishop's Official, when he was employed abroad in Foreign Embassies, whereby both these Names or styles became at last in common understanding, as it were, Synonym●us 
c Cowel. Interpr. verb. Arches. . For the Official of this Court, and the Dean of the Arches by such Substitution had both the same Juridical Authority, though with distinct styles in several persons, as appears by that which comes next to the Preface to the Ancient Statutes of that Court, ordained by Robert Winchelsey Archbishop of Canterbury 
d Temp. Ed. 1. An. 1295. , in that Stat. touching the Form of the judge's Oath, where the words are, tam Officalis dictae Curiae, quam Decanus de Arcubus, suus Commissarius Generalis, etc. For he that was the Archbishop's Official in this Court was heretofore obliged to Constitute the Dean of the Arches as his Commissary General in his absence; as also appears by another of those Statutes or Constitutions of that Court, Ordained by John Whitgift Archbishop of Canterbury 
e An. 3 Eliz. 1583. , the Title of which Statute is, De Decano Ecclesiae Beatae Mariae de Arcubus Lond. wherein we find, viz. Statuimus quod Officialis dictae Curiae teneatur Decanum Ecclesiae suum Constituere in ipsius absentia Commissarium. Also by the Statutes and Constitutions of this Court made by Matthew Parker Archbishop of Canterbury 
f Edit. Lambeth. 6 Maii Ap. 573. & Consecra. 14. , it is expressly Ordained, That neither the Dean or Official of the Court of Arches, nor the Auditor of matters and Causes in the Court of Audience of Cant. nor the Judge of the Prerogative Court, shall exercise the Function or Profession of an Advocate in any Court belonging to the Jurisdiction of the said Archbishop, on pain of Excommunication and Suspension 
g Vid. dict. Stat. M. S. . In this Court of the Arches the Proctors thereof do wear such Hoods, as Bachelors of Arts use to wear in the universities; which Habit or Formality was first enjoined by Henry Chichley Archbishop of Canterbury, in the year 1435. 
h Antiq. Brit. 6 H. 6. An. 1435. . The style of this Court is, Alma Curia Cant. de Arcubus Lond. And the Appeal from it doth lie to the King in Chancery 
i 25 H. 8. 19 .  
(5.) This Court of the Arches anciently holden in Bow-Church of London, is of very great Antiquity; the Lord Coke in the forecited place lets us to understand, that he meets with it in a very Ancient Record of a Prohibition 
k Hill 7 E. 1. coram Rege. Rot. 8. Pasch. 12 E. 1. in Banco. Essex. Guliel. de Mo●●us ma●i Clericus, etc. Vid. Dyer. 7 Eliz. 241. , In Curia Christianitatis cotam Decano de Arcubus London. The Statutes and Ordinances of which Court are very Ancient, and to which Those ordained by Robert Winchelsey Archbishop of Canterbury, above 380 years since, do refer: Robertus Winchelse Archiepiscopus Cantuariensis descripsit Judicibus, Advocatis, Procuratoribus, aliisque ministris Almae suae Curiae de Arcubus jura quaedam & Statuta, 
Ant. Brit. fo. 201.  quae ipse in Templo Arcuato sedens pro Tribunali legit atque obligavit. Quinto Idus Novemb. Anno 1295. William de Sardinia being then his Official, and Henry de Nassington Dean of the Arches, the said Officials Commissary General; By which Statutes it was Ordained, That the Advocates belonging to the said Consistory, should not exceed the number of Sixteen; nor the Proctors above the number of Ten; nor should any of them, without the special licence of the precedent of that Consistory, absent themselves thence, by any attendance on any other Consistory, at such times wherein Causes were to be heard in the Arches 
l M. S. Stat. Cur de Arcub. §. de numero advocate. & in final. Conclus. Statut. ; And for the dispatch of the Causes of poor and indigent persons, the Judge may by the said Statutes assign them Advocates and Proctors to prosecute for them Gratis & Charitative, and that nothing be paid for the Process, Acts of Court, Examinations, Sentence, or other Court-Fees in such Cases 
m Dict. Stat. §. Item Procuratores. Vid. Provinc. Const. Lindw. De Offic. Jud. Ord. cap. S●atuimus▪ gloss. verb. Ad Pauperes. . In which Court the signior Advocates by the same Statutes are to take their places opposite to the Judge, the others on each side of him, nigher to, or remoter from him according to their Seniority; the like Order in Court to be observed also by the Proctors. And such was the devotion of those days in that Consistory, That in order to an imploring of the Divine assistance on their proceed in judgement, it was further Ordained, That Divine Service should be celebrated in Bow-Church immediately before the first, and after the last session of every Term, the Judge, Advocates, Proctors, and other Officers of the Court to be present thereat.  
(6.) The Prerogative Court of the Archbishop of Canterbury is that Court, wherein all Testaments are proved, and Administrations granted of the Goods and Chattels of such persons, as dying within his Province, had at the time of their death Bona Notabilia in some other diocese, than that wherein they died; which Bona Notabilia regularly must amount to the value of Five pounds, save in the diocese of London, where it is Ten pounds by Composition. The Probat of every Bishop's Testament, 
Co. Inst. par. 4. cap. 74.  and the granting of the Administration of his Goods and Chattels, albeit he hath not Goods but within his own Jurisdiction, doth belong to the Archbishop. The like Court hath the Archbishop of York. From this Court lies the Appeal to the King in Chancery. If one make two Executors, one of seventeen years of Age, 
Pigot and Gascoin's Case. Brownl. Rep. par. 1. Cases in Law, etc.  and the other under, Administration during the Minority is void, because he of seventeen years old may execute the Will, if Administration during the Minority in such case be granted; And if the Administrator brings his Action, the Executor may well release the Debt. One was cited to appear in the Prerogative Court of Canterbury, which lived out of the diocese of Canterbury, and upon that he prayed Prohibition upon the Statute of 23 H. 
Stat. 23 H. 8. cap. 9  8. c. 9 which willeth, that none shall be cited to appear out of his diocese, without assent of the Bishop, and Prohibition was granted: And yet it was said, that in the time of H. 8. and Q. Ma. that the Archbishop of Canterbury had used to cite any man dwelling out of his diocese, and within any diocese within his Province, to appear before him in the Prerogative-Court, and this without the assent of the Ordinary of the diocese: But it was Resolved by the Court, that this was by force of the power Legatine of the Archbishop, that (as Lindwood saith) ought to be expressed in the Prohibition, 
Trin. 8 Jac. Brown l. p. 2.  for the Archbishop of Canterbury, York, Pisa, and Reymes, were Legati nati, and others but Legati à latere. The Lord Coke, in his Institutes, par. 3. cap. 69. gives us the Resolutions upon the Statute of 21 H. 8. cap. 5. That if a man makes his Testament in paper, and dieth possessed of Goods and Chattels above the value of 40 l. and the Executor causeth the Testament to be transcribed in parchment, and bringeth both to the Ordinary, etc. to be proved; It is at the Election of the Ordinary, whether he will put the Seal and Probat to the Original in paper, or the Transcript in parchment, but whether he put them to the one or to the other, there can be taken of the Executor, etc. in the whole but 5 s. and not above; viz. 2 s. 6 d. to the Ordinary, etc. and his Ministers, and 2 s. 6 d. to the Scribe for registering the same: or else the said Scribe to be at his liberty, to refuse the said 2 s. 6 d. and to have for writing every ten Lines of the same Testament, whereof every Line to contain ten inches, one penny. If the Executor desire that the Testament in paper may be transcribed in parchment, he must agree with the party for the Transcribing; but the Ordinary, etc. can take nothing for that, nor for the Examination of the Transcript with the Original, but only 2 s. 6 d. for the whole duty belonging to him. Where the Goods of the deceased do not exceed five pound, the Ordinary, etc. shall take nothing, and the Scribe to have only for writing of the Probat six pence: so the said Testament be exhibited in writing, with Wax thereunto affixed ready to be sealed. Where the Goods of the deceased do amount to above the value of five pound, and do not exceed the sum of forty pound, there shall be taken for the whole but 3 s. 6 d. whereof to the Ordinary, etc. 2 s. 6 d. and 12 d. to the Scribe for registering the same. Where by custom less hath been taken in any of the Cases aforesaid, there less is to be taken. And where any person requires a Copy or Copies of the Testament so proved, or Inventory so made, the Ordinary, etc. shall take for the Search, and making of the Copy of the Testament or Inventory (if the Goods exceed not five pound) six pence; and (if the Goods exceed five pound, and exceed not forty pounds) twelve pence. And if the Goods exceed forty pounds, than two shillings six pence, or to take for every Ten lines thereof of the proportion before rehearsed, a penny. And when the party dies Intestate, 
Mich. 20 Jac. in Cam. Stellat. Sr. Jo. bennets Case. Co. Inst. par. 3. cap. 69.  the Ordinary may dispose somewhat in pious uses, notwithstanding the Act of 31 Ed. 3. but with these Cautions: (1) That it be after the Administration granted, and Inventory made, so as the state of the Intestate may be known, and thereby the sum may appear to be competent. (2) The Administrator must be called to it. (3) The use must be public and godly. (4) It must be expressed in particular. And (5) There must be a Decree made of it, and entered of Record.  
(7.) The Court of Audience, Curia Audientiae Cantuariensis. The Lord Coke touching the Jurisdiction of Courts, taking notice of this of the Audience among other of the Ecclesiastical Courts 
n Co. Inst. 4. par. cap. 74. , says, That this Court is kept by the Archbishop in his Palace, and meddleth not with any matter between party and party of any contentious Jurisdiction, but dealeth with matters pro forma, and Confirmations of Bishop's Elections, Consecrations, and the like, and with matters of voluntary Jurisdiction, as the granting of the Guardianship of the Spiritualties Seed vacant of Bishops, Admissions and Institutions to Benefices, dispensing with Banns of Matrimony, and such like. This Court did belong to the Archbishop of Canterbury, and was in point of Authority equal with, but in point of Dignity and Antiquity inferior to the Court of Arches. It seems that Anciently the Archbishop of Canterbury did hear divers Causes of Ecclesiastical cognizance Extra-judicially, and at home in his own Palace, wherein, before he would come to any final determination, his usage was to commit the discussion thereof to certain persons learned in the Laws Civil and Canon, who thereupon were styled his Auditors, whence in process of time it centred in one particular person styled, Causarum Negotiorumque Audientiae Cantuariensis Auditor seu Officialis: And from hence the Original of this Court is properly derived. With this office of the Auditor the Chancery of the Archbishop is said to have been heretofore commonly joined, not controverting any matters of contentious Jurisdiction in any decisions of Causes between Plaintiff and Defendant, 
Vid. Hist. de Antiq. Eccles. Britan.  but such only as were Voluntariae Jurisdictionis & ex Officio, touching such things only as are fore-specified, and such like. By the Provincial Constitutions it is Ordained, That for the ease of the People they may at times convenient (to be assigned by the Bishop) have access to their Diocesan, Et quod Praelati pers●●. Litter Audiant quaerelas in his Cathedral, or next Parochial Church, vel in aliqua Maneriorum suorum Capella, si talis fuerit. Lindw. de Offic. Jud. Ord. cap. Statuimus. in gloss. verb. in Publico. It seems not altogether improbable, but that from the practice hereof this Court of Audience anciently had its Original, as aforesaid; And although it be not now in use as heretofore, yet considering the Subject-matter it only took cognizance of, it was a good Expedient to prevent many Suits at Law in Foro Contentioso.  
(8.) Faculty [or, Court of Faculties] in the sense here meant and intended, must not be understood according to its original and genuine signification, but as a term of Art according to a limited construction, restrained under that peculiar notion and particular understanding which the Law hath of it, in reference to a branch of the Ecclesiastical Jurisdiction: And so it is understood and commonly used for that privilege or especial Power, which is legally granted to a man by licence, favour, indulgence, and dispensation to have or do that, which otherwise by the Canon Law he could not; as to eat Flesh upon days prohibited; to Marry without Banns first published; to hold Two or more Ecclesiastical Benefices incompatible; the Son to succeed the Father in his Benefice, 
Vid. Vaugh. Rep. fo. 25.  and such like. A Faculty granted to one, who is not Incumbent, to take a void Benefice, is void: But a Faculty to one, who is Incumbent of a Benefice to retain the same, is good. It is called Faculties in the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of the Court of Faculties, although it holds no Plea of controversy 
o Co. par. 4. Inst. cap. 74. . It belongs to the Archbishop of Canterbury, and his chief Officer thereof is called Magister ad Facultates, whose power is to grant Dispensations to the ends and purposes aforesaid; and so may every Diocesan, as to that of Marriage, and eating of Flesh on days prohibited. Faculty (according to Sir Ed. Coke in the place forecited) signifies a Dispensation: so that Facultates (in this sense) Dispensationes & Indulta are Synonyma. Who likewise there says, that this Authority was raised and given to the Archbishop of Canterbury by the Statute of 25 H. 8. c. 21. whereby Authority is given to the said Archbishop and his Successors to grant Dispensations, Faculties, etc. by himself or his sufficient and substantial Commissary or Deputy for any such matters, commonly called the Master of the Faculties, and of all such matters as whereof heretofore such Dispensations, Faculties, etc. then had been accustomed to be had at the See of Rome, or by Authority thereof. 
p Trin. 44 Eliz. C. B. Rot. 1525. lib. 4. fo. 117. Lib. pl. Co. p. 512, 513. Pascls. 9 J●c. C. B. en Ireland, le Case de Commenda in Davis Rep.  For by the Stat. of 28 H. 8. c. 16. it appears, the Bishop of Rome did grant Faculties and Dispensations to the King's Subjects, as, Pluralities, Unions, Trialities, Appropriations, Commendams, Exemptions. And the judgement of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose; where it is recited, that the Bishop of Rome had deceived and abused the Subjects of the Crown of England, pretendig and persuading them, That he had full power to dispense with all human Laws, uses, and customs of all Realms, in all Causes which be called Spiritual: which matter hath been usurped and practised by him and his Predecessors for many years, to the great derogation of the Imperial Crown of England. For whereas the said Realm of England, recognising no superior under God, but the King, hath been, and yet is, free from subjection to any man's Laws, but only to such as have been devised, made, and Ordained within this Realm for the weal of the same, or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty, and by their own consent, to be used among them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of the Laws of any Foreign Prince, Potentate, or Prelate; but as to the accustomed and ancient Laws of this Realm, originally established as Laws of the same by the said sufferance, consent, and custom, and not otherwise: it standeth with natural equity and good reason, that all such human Laws made within this Realm, or induced into this Realm by the said Sufferance, Consent, and custom, should be dispensed with, abrogated, amplified or diminished by the King and his Parliament, or by such persons as the King and Parliament should authorise, etc. Vid. 21 H. 7. 4. a. where it is said, That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded, that the King of England, and not the Pope, before the making of the said Statute of Faculties, might the jure dispense with the Ecclesiastical Law in that and other cases. For although many of our Ecclesiastical Laws were first devised in the Court of Rome, yet they being established and confirmed in this Realm by acceptance and usage, are now become English Laws, and shall no more be reputed Roman Canons or Constitutions: As Rebuffus' speaking De Regula Cancellariae Romanae de verisimili notitia, Haec Regula (says he) ubique in Regno Franciae est recepta, & est Lex Regni effecta, & observatur tanquam Lex Regni, non tanquam Papae Regula; & Papa eam revocare non potest. The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical; For whereas the Law of the Church is, That every Spiritual person is Visitable by the Ordinary, King William the Conqueror by his Charter dispensed with the exempted the Abbey of battle from the Visitation and Jurisdiction of the Ordinary in these express words, Sitque dicta Ecclesia libera & quieta in perpetuum ab omni subjectione Episcoporum, & quarumlibet personarum dominatione, sicut Ecclesia Christi Cantuariensis, etc. whereby he dispenses with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis & Ecclesiasticae. Edit. 1534. where that whole Charter is recited at large. The like Charter was granted to the Abbey of Abingdon by King Kenulphus, 1 H. 7. 23, & 25. and Cawdry's Case, Co. par. 5. fo. 10. a. So likewise every Appropriation doth comprise in it a Dispensation to the Parson Imparsonee, to have and retain the Benefice in perpetuity, as appears in Grendon's Case. Blow. Com. 503. In which Act the King by the Common Law shall be always Actor, not only as supreme Patron, but also as supreme Ordinary; as is also observed in Grendon's Case. For the King alone without the Pope may make Appropriations. 7 E. 3. Fitz. Quare Impedit 19 And in the Case of Malum prohibitum, and Malum in se, in 11 H. 7. 12. a. it is held, That the King may dispense with a Priest to hold Two Benefices; and with a Bastard, that he may be a Priest, notwithstanding the Ecclesiastical Laws which are to the contrary. And as he may dispense with those Laws, so he may pardon all Offences contrary to these Laws, and his Pardon is a bar to all Suits pro salute Animae, or reformatione morum, and all Suits ex Officio in the Ecclesiastical Court. Hall's Case, Coke 5. par. fo. 51. In all Faculties or Dispensations, for the holding of Two Benefices, granted at the Court of Rome, there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons, and of the right of the King by name express, where the Patronage belonged to him, otherwise the Faculty was void; For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature; And if such a particular Non obstante were not added in the Faculty, than there was inserted another Clause, viz. Dummodo Patronorum expressus accedat Consensus; also by another Clause Authority was always given to the Official or Archdeacon, or other Ecclesiastical Minister, to put him, to whom the Faculty is granted, into possession of the Benefice cum acciderit. And because by the Canon Law the Patron's consent was ever requisite in a Commenda, for that reason in every Faculty or licence granted by the Pope to make a Permutation, Union, or Appropriation of Churches, these words were ever added, viz. Vocatis quorum interest, which chief intends the Patron. And which Union and Approbation shall not according to the Common Law be made without the Patron's assent. Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass. p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Case, Blow. Com. 498. a. A Faculty or Dispensation is of such force, that if a Clerk be presented to a Benefice with Cure, and be Admitted, Instituted, and Inducted into the same, so that the Church is full of him, if afterwards he be presented to another Benefice Incompatible, or elected to a bishopric, and before he is Instituted to the second Benefice, or be created Bishop, he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo, that is, for his life, that Faculty or Dispensation shall be of such effect, that the former Benefice shall not be void by acceptance of the Second, or by promotion to the bishopric; but he shall remain full and perfect Incumbent of the first Benefice during his life. In the time of H. 6. when Henry Beaufort, Great Uncle to the King, being Bishop of Winchester, was made a Cardinal, and after that purchased from the Pope a Bull Declaratory, that notwithstanding he were made Cardinal, yet his bishopric of Winchester should not be void, but that he might retain the same as before; yet it was held, That the See of Winchester was void by assuming the Cardinalship, which exempts the Bishop from the Jurisdiction of his Metropolitan; And for that the Cardinal fell into a Praemunire, for which he purchased his Pardon, which is sound among the Charters 4 H. 6. in Archivis Turr Lond. 6, & 7 Eliz. Dyer 233. a. Jo. Packhurst being elected to the bishopric of Norwich, before that he was created Bishop, obtained a Faculty or Dispensation from the Archbishop of Canterbury (by force of the Statute of Faculties) to retain a Parsonage which he had before in Commendam, for Three years, viz. à Festo Michaelis An. Dom. 1560. usque ad idem Festum, in An. 1563. Before the first Feast of St. Michael, Packhurst is created Bishop, and afterwards he resigned the Benefice. And the Question was, whether that Benefice became void by the resignation of Packhurst, or by his promotion to the bishopric? And it was adjudged, That the Church became void by his Resignation: Which proves, That by virtue of the said Faculty or Dispensation he continued Parson until he had resigned. Vid. N. Br. 36. h. If a Parson who hath a Faculty or Dispensation to hold his Rectory, be created a Bishop, and after the Patron present another Incumbent, who is Instituted and Inducted, now the Bishop shall have a Spoliation against that Incumbent; which proves that his real possession in the Parsonage always continued by virtue of the said Faculty or Dispensation. And in this Case of a Commendam in Sir Joh. Davis Reports, this difference is put between a Faculty to take a Benefice, and a Faculty to retain a Benefice, viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice, is void: And a Faculty to one who is Incumbent of a Benefice to Retain the same Benefice, is good. By virtue of these Faculties, Dispensations, and Provisions from the Pope, Edmond the Monk of Bury, who was a Minister in the Court of King Ed. 3. had many Benefices; as appears in the foresaid Case of the Bishop of St. David's, 11 H. 4. And Hankford said in the same Case, fo. 191. a. That by virtue of such Faculty one and the same person had been Abbot of Glastenbury, and Bishop also of another Church simul & semel, and had the Possessions and Dignity of both at the same time. Likewise Hen. Chichley (who was afterwards Archbishop of Canterbury) being a Prebend in the Cathedral Church of Sarum, was elected Bishop of St. David's, and before his Consecration, the Pope reciting by his Bull, that he was elected Bishop of St. David's, granted him a Faculty and power to hold and enjoy all his other Benefices, till the Pope should otherwise order, etc. Vid. nou. Decis. Rot. 331. And that these Faculties or Dispensations to hold Benefices in Commendam, were granted in the Court of Rome in the time of King H. 5. appears in Lindw. de Praeb. c. Audistis. ver. Dispensatione. And although in case of Hen. Beauford aforesaid, it was held, That the Dispensation came too late, it being granted after the Bishop was created Cardinal; yet afterwards in the time of King H. 8. Cardinal Wolsey, having, before he was created Cardinal, obtained a Bull from the Pope, to retain the archbishopric of York as perpetual Administrator, and the Abbey of St. Alban in perpetuam Commendam, he held both during his life by virtue of the said Faculty or Dispensation. Vid. 27 H. 8. 15. b. By these precedents and Authorities it is evident, That before the making of the foresaid Statute of Faculties, such Dispensations were had and obtained at the Court of Rome, to hold in Commendam Ecclesiastical Benefices in England. But the Truth is (as in the foresaid Case de Commenda. Davis Rep.) such Faculties or Dispensations granted by the Pope touching Ecclesiastical Benefices in England were ever contrary to the Law of the Realm, for it was a mere usurpation on the Crown of England before the Statutes made against Provisors. And these Statutes were made in declaration of the Common Law in that point. 12 Ed. 2. Fitz. Qua. Imp. 169. 19 Ed. 2. Eitz. Qua non admisit, 7. 15 Ed. 3. Fitz. Qua. Imp. 160. 21 Ed. 3. 40. 11 H. 4. 230. a. It is also meet to be known, That long before King H. 8. 
25 Ed. 1.  the Statute of 16 R. 2. and divers other Laws against Provisors, 
16 R. 2.  and Appeals to Rome, and the Pope's Usurpation upon the Rights of the Crown of England, 
38 Ed. 3 c. 1.  were made well-nigh as severe as any since. 
27 Ed. 3. c. 1.  The first encroachment of the Bishop of Rome upon the Liberties of the Crown of England was made in the time time of King William the Conqueror; 
25 Ed. 3.  For before that time the Pope's Writ did not run in England, 
Davis Rep. i● the case of Praemunire. fo. 87.  his Bulls of Excommunication and Provision came not thither, nor were any Citations or Appeals made from thence to the Court of Rome. Eleutherius the Pope, within less than two hundred years after Christ, writes to Lucius the British King, 
Ibid. fo. 88  and calls him God's Vicar within his Kingdom. Pelagius the Monk of Bangor, about An. 400. being cited to Rome, refused to appear upon the Pope's Citation, affirming, That Britain was neither within his diocese nor his Province And when about the year 600, Augustine the Monk was sent by Gregory the Great into England, to Convert the Saxons, the British Bishops then in Wales regarded neither his Commission nor his Doctrine, as not owing any duty to, nor having any dependence on the Court of Rome, but still retained their Ceremonies and Traditions, which they received from the East-Church upon the first plantation of the Faith in that Island. And though Ina the Saxon King gave the peter-pences to the Pope, partly as Alms, and partly in recompense of a House erected in Rome for English Pilgrims, yet certain it is, that Alfred, Aethelstane, Edgar, Edmond, cawtus, and Edward the Confessor, and other Kings of the Saxon Race, gave all the bishoprics in England per Annulum & Baculum.  
(9) In the Case of Evans against Askwith, it was agreed 
q Hill. 22 ● c. B. R. Rot. 2164. Evans and Riffin verse. A●kwith. Jones Rep. , That the nature of a Dispensation is, for to derogate and make void a Statute, Canon, or Constitution, as to that which it prohibits as to the party, and it is as an Exception (as to him) out of the Statute or Constitution. It is said, that a Dispensation is Provida Relaxatio mali prohibiti necessitate vel utilitate pensata 
r Coke Rep. par. 11. & Jones ibid. . And in the same Case it was also Resolved by all the Judges, That the King hath power to dispense with Statutes and Canons in force within this Realm: By the very Common Law, of right it was in the King; for the Canons are the Ecclesiastical Laws of the Land, and do not bind, except they are received in the Realm, as appears by the Statute of 25 H. 8. c. 21. 
s Dr. Standish's Case. Relw. Rep. . And by the Statute of Merton, touching one born before Marriage, as by the Canon, yet at Common Law he is Legitimate. And 10 H. 7. 12. it is said, That the King may dispense with one to hold Two Benefices; and it seems the Pope de facto and by Usurpotion did use to dispense, and by the Stat. of 25 H. 8. cap. 21. the power is taken from the Pope and conferred Cumulative on the King 
t Vid. Cawdry's Case. Co. Rep. par. 5. 55. and Grendon's Case. Blow. Com. : And by the Stat. of 25 H. 8. the Archbishop of Canterbury may dispense in divers cases; but that doth not exclude the power of the King.  
(10.) In the same Case it was held per Curiam una voce, That where a Dean is made a Bishop, with a Dispensation from the King to hold the Deanary notwithstanding the bishopric, such Dispensation continues him Dean as before, by force and virtue of his former Title to all intents and purposes, so as that he may confirm, or make Leases, or do any other Act as a Dean, as if he had not been made a Bishop at all; For before the Cano nor Constitution made at the Council of lateral, for the avoidance of the first Benefice by taking another Benefice or Promotion, it was lawful and not forbidden so to do; and the nature of the Dispensation is to exempt him from the penalty, and so it remains as if the Canon had never been made, which appears by 11 H. 4. in the Case of the Bishop of St. David's, That such a person that had such a Dispensation being Defendant in a Quare Impedit counterpleaded the Title of the Plaintiff, which he could not do by the Statute of 25 Ed. 3. unless he had been the Possessor thereof, and he in possession by 4 H. 8. Dyer 1. is one who is and continues Incumbent by Institution and Induction: Therefore in this case the first Title and Induction continues; And in the same Case it was also agreed, That such Dispensation is not any Provision, for no new thing is done, but the ancient Title continues. And in Fitz. N. B. Brief Spoliation, such a person may maintain a Spoliation, and none can maintain that, unless he continue his Institution and Induction, Parkhur's Case, 6 & 7 Eliz. Such a Commendam continues to the person, be it that the Benefice be void by Resignation; And 21 Jac. in a Quare Impedit in C. B. by Woodley against the Bishop of Exeter and Manwayring, it was so Resolved and Adjudged, and the words of that Dispensation are sufficient; for it is to retain it during his life in Commendam, aut modo quocunque de jure magis efficaci, and all the profits thereto belonging, ac caetera facere & perimpl●re quae ad Deconatum pertinent in tam amplis modo & forma, as if he had not been promoted to be a Bishop, with a Non obstante to all Canons▪ etc. And so they all concluded, That the Dispensation continues him Dean, enabling him to Confirm Leases made by the Bishop.  
(11. W. Libels for a Legacy in the Ecclesiastical Court against B. who moves for a Prohibition, because he had there pleaded Plene Administravit, and proved that by one Witness, and they would not allow it. Richardson, before the Statute of Ed. 6. the proper Suit for Tithes was there, and if they allow not one Witness to prove payment, a Prohibition shall be granted. And he put Morris and Eaton's Case in the Bishop of Winchester's Case, where it was Ruled; if the Ecclesiastical Court will not allow that Plea which is good in our Law, a Prohibition shall be granted, as in the Case of Tithes. And he said, the Case of a Legacy is all one. Crook, When one comes to discharge a thing by due matter of Law, and proves it by one Witness; if it be not allowed, no Prohibition shall be granted there. Richardson, Our Case is proof of Plene Administravit pleaded, which goes in discharge: But if there be enough pleaded, which goes in discharge, and proves that by one Witness, and not allowed, a Prohibition shall be granted. Hutton said, That properly for a Legacy the Suit is in the Ecclesiastical Court: although they may sue in the Chancery for it, yet the proper Court is the Ecclesiastical Court. And they said, that they used to allow one Witness with other good Circumstantial proofs, if they be not in some Criminal causes, where of necessity there must be two Witnesses. In one Hawkin's Case, Farmor of an Appropriation, Libels for Tithes of Lambs for seven years: And there payment was proved by one Witness, and a Prohibition was granted for Non-allowance. Yeluerton, There may be a difference where the Suit is merely Ecclesiastical for a Sum of Money, as for a Legacy, there the payment of the Legacy is of the nature of the thing, and the Ecclesiastical Court shall have Jurisdiction of the proof and matter. But if one gives a Legacy of twenty Oxen, and the other pleads payment of as much money in satisfaction, there they cannot proceed, but at Common Law, for that, that the Legacy is altered; And if a proof of one Witness is not accepted, a Prohibition shall be granted, for now it is a Legal Trial, 35 H. 6. If the Principal be proper for their Court, the accessary is of the same nature. Also the Suit is commenced for a Legacy, and the other pleads Plene Administr. there they proceed upon the Common Law: For they sometimes take that for Assets, which our Law does not take. It was adjudged in the Kings-Bench. That where a Proof by one Witness of a Release of a Legacy is disallowed, a Prohibition shall be granted. Crook, In this Case a Proof of setting out of Tithes by one Witness disallowed, a Prohibition shall be granted 
u Pasch. 4 Car. C. B. Warner against ●arret. Hetley's Rep. .  
(12.) One was obliged in the Ecclesiastical Court not to accompany with such a Woman, unless to Church or to a Market overt. And afterwards he was summoned to the Ecclesiastical Court, to say, whether he had broken his Obligation, or not? And Ayliffe moved for a Prohibition, which was granted; for that, that the Forfeiture is a Temporal thing; And it does not become them in the Ecclesiastical Court, to draw a man in Examination for breaking of Obligations, or for Offences against Statutes 
x Gammon 's Case. Hetley's Rep. .  
C. Administrator durante Minori aetate of his brother's Son; the Son died, and made the Wife of H. his Executrix, who called C. to account in the Ecclesiastical Court for the Goods. And he pleads an Agreement between him and H. and that he gave 80 l. in satisfaction of all Accounts: But they did not accept the Plea; for that a Prohibition was prayed to be granted. Richardson, If the party received the money in satisfaction, than there shall not be a Prohibition granted; but if there were only an Agreement without payment of money, than otherwise. Crook, It is a Spiritual matter, and they have Jurisdiction to determine of all things concerning that. But the Agreement prevents, that it cannot come into the Ecclesiastical Court 
y 〈◊〉 Case. Hetley's Rep. .  
G. Libels against B. before the High Commissioners for an Assault made upon him, being a Spiritual person. And Attbowe prayed a Prohibition; for that although their Commission by express words gives them power in that case, yet that Commission is granted upon the Statute of 1 Eliz. And it is not within the Statute: and although it be within the Commission, yet they have not Jurisdiction. The words of the Statute are, That such Jurisdictions and privileges, etc. as by any Ecclesiastical power have heretofore been, or lawfully may be exercised for the Visitation of Ecclesiastical State and Persons, and for reformation of the same, and for all manner of Errors, Heresies, Schisms, Abuses, Offences, Contempts, and Enormities, etc. These words extend only to men who stir up dissensions in the Church, as Schisimaticks, and new-sangled Men, who offend in that kind. Henden sergeant, The Suit is there for reformation of Manners; and before the new amendment of the Commissions, Prohibitions were granted, if they meddled with Adultery, or in Case of Defamations; but now by express words they have power of these matters. And that matter is punishable by the Commissioners for two Causes: (1) There is within the Act of Parliament by the words annexed, all Jurisdictions Ecclesiastical, etc. (2) It gives power to the Commissioners to exercise that; And that is merely Ecclesiastical, being only pro reformatione morum, etc. The King by his Prerogative having Ecclesiastical Jurisdiction, may grant Commissions to determine such things, 5 Rep. Ecclesiastical Cases, fol. 8. And Richardson said, The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk. But you affirm, That all is given to the Commissioners, and thereby they should take all power from the Ordinary: But by the Court, the Commissioners cannot meddle for a stroke in churchland, nor pro subtractione Decimarum. And yet they have express Authority by their Commission; for by that course all the Ordinaries in England should be to no purpose. And so upon much debate a Prohibition was granted 
z Giles against 〈◊〉. Hetley 's Rep. .  
On an Arrest on Christmas-day, it was said by Richardson Chief Justice, That upon Arresting a man upon Christmas-day, going to Church, in the churchyard, He who made the Arrest, may be censured in the Star-Chamber for such an Offence. Quod Nota. It was also said by Richardson, that if a man submit himself out of the diocese to any Suit, he can never have a Prohibition, because the Suit was not according to the Statute, 23 H. 8. commenced within the proper diocese, as it was Adjudged. Quod Nota 
a Ibid. Hetley's Rep. .  
It the Ecclesiastical Court proceed in a matter that is mere Spiritual, and pertinent to their Court, according to the Civil Law, although their proceed are against the Rules of the Common Law, yet a Prohibition does not lie. As if they refuse a single Witness to prove a Will, for the cognizance of that belongs to them. 
Vid the Stat. 24 E. 1.  And Agreed also, That if a man makes a Will, but appoints no Executor, that that is no Will, but void: But if the Ordinary commits the Administration with that annexed, the Legatary to whom any Legacy is devised by such Will, may sue the Administrator for their Legacies in the Ecclesiastical Court. Note, P. 4. Jac. B. R. Peep's Case, a Prohibition was denied where they in the Ecclesiastical Court refused a single Witness in proof of payment of a Legacy 
b Chadron against Harris. Noy 's Rep. . After Prohibition, if the Temporal Judge shall upon sight of the Libel conceive, that the Spiritual Court ought to determine the cause, he is to award a Consultation And by the Sta●. of 50 E. 3. c. 4. the Ecclesiastical Judge may proceed by virtue of the Consultation once granted, notwithstanding any other Prohibition afterwards, if the matter in the Libel be not enlarged or changed.  
B. Administrator of A. makes C. his Executor and dies; C. is sued in the Ecclesiastical Court to make an Account of the goods of A. the first Intestate: And C. now moves for a Prohibition, and had it; for an Executor shall not be compelled to an Account: But an Administrator shall be compelled to Account before the Ordinary 
c Sparrow against Norfolk. Noy 's Rep. .  
Resolved by the Court, That a Prohibition shall not be awarded to the Admiral or Ecclesiastical Courts after Sentence; Also that a Plea was there pleaded and refused, which was Triable at Common Law 
d Hollmasts Case. Noy's Rep. .  
Note, A Prohibition was awarded upon the Statute of 23 H. 8. because the party was sued out of the diocese. And now a Consultation was prayed, because the interior Court had remitted that Cause to the Arches, and their Jurisdiction also; yet a Consultation was denied 
e Noy's Rep. post Dr. Cademan's Case verse. Grendan. .  
A Suit was in the Ecclesiastical Court, and Sentence passed for one with Costs, and nine months after the Costs are assessest and Taxed; and then comes a Pardon of 21 Jac. which relates before the taxing of the Costs. But afterwards the Sentence and that Pardon was pleaded, and allowed in discharge of the Costs. Then W. who had recovered, sues an Appeal, and P. brought a Prohibition, and well, and no Consultation shall be awarded, because by the Court, that Pardon relating before the Taxation of Cost, had discharged them. As 5. Rep. 51. Hall's Case 
f Palmer verse. Warner. Noy's Rep. .  
B. and Two others sue upon three several Libels in the Ecclesiastical Court, and they join in a Prohibition. And by the Court that is not good: But they ought to have had three several Prohibitions; and therefore a Consultation was granted. Mich. 26 & 27 Eliz. C. B. If A. Libels against B. for Three things, by one Libel, B. may have One or Three Prohibitions. Note, Dyor 171. 
g Post S●adding's Case in Noy's Rep. .  
(13.) By the Statute of 25 H. 8. cap. 19 Appeals to Rome being prohibited, it is Ordained, That for default of Justice in any of the Courts of the Archbishops of this Realm, etc. it shall be lawful to Appeal to the King in his High Court of Chancery, and thereupon a Commission shall be granted, etc. And by a Proviso towards the end of that Statute, an Appeal is granted to the King in Chancery on Sentences in places exempt in such manner as was used before to the See of Rome. So that this Court grounded on the said Commission is properly as well as vulgarly called, The Court of Delegates, for that the Judges thereof are Delegated to fit by virtue of the Kings said Commission under his Great Seal upon an Appeal to him in Chancery, and that specially in Three Causes: (1) When a Sentence is given in any Ecclesiastical Cause by the Archbishop or his Official. (2) When any Sentence is given in any Ecclesiastical Cause in places exempt. (3) When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime, according to the Civil Law. That this Court of Delegates may Excommunicate 
h H. 10 Jac. B. per Coke. , was Resolved by all the Judges in the Archbishop of Canterbury's Case 
i Rol. Abridg. verb. Prerogative, lit. G. . They may also commit or grant Letters of Administration 
k H. 10 Jac. . This Court of Delegates is the highest Court for Civil Affairs that concern the Church, for the Jurisdiction whereof it was provided, 25 H. 8. That it shall be lawful for any Subject of England, in case of defect of Justice in the Courts of the Archbishop of Canterbury, to Appeal to the King's Majesty in his Court of Chancery, and that upon such Appeal, a Commission under the Great Seal shall be directed to certain persons, particularly designed for that business: so that from the highest Court of the Archbishop of Canterbury, 
Co. Inst. par. 4. cap. 74.  there lies an Appeal to this Court of Delegates. Of this Subject of Appeals the Lord Coke says, That an Appeal is a Natural defence, which cannot be taken away by any Prince or power, and in every Case generally when Sentence is given, and Appeal made to the superior, the Judge that did give the Sentence is obliged to obey the Appeal, and proceed no further until the superior hath examined and determined the cause of Appeal. Nevertheless where this Clause (Appellatione remota) is in the Commission, the Judge that gave Sentence is not bound to obey the Appeal, but may execute his Sentence and proceed further, until the Appeal be received by the superior, and an Inhibition be sent unto him: For that Clause Appellatione remota hath Three notable effects; (1) That the Jurisdiction of the Judge à quo is not by the Appeal suspended or stopped, for he may proceed the same notwithstanding. (2) That for proceeding to Execution or further process, he is not punishable. (3) That these things that are done by the said Judge after such Appeal cannot be said void, for they cannot be reversed per viam Nullitatis. But if the Appeal be just and lawful, the superior Judge ought of right and equity to receive and admit the same; and in that case he ought to reverse and revoke all mean Acts done after the said Appeal in prejudice of the Appellant. 
Dyer. Co. ubi supr.  At the Parliament held at Clarendon, An. 10 H. 2. cap. 8. the Forms of Appeals in Causes Ecclesiastical, are set down within the Realm, and none to be made out of the Realm, Ne quis appellat ad dominum Papam, etc. so that the first Article of the Statute of 25 H. 8. concerning the prohibiting of Appeals to Rome is declaratory of the ancient Law of the Realm. And it is to be observed (says the Lord Coke) that the first attempt of any Appeal to the See of Rome out of England, was by Anselme Archbishop of Canterbury, in the Reign of William Rufus, and yet it took no effect. Touching the power and Jurisdiction of the Court of Delegates. 
Co. ibid.  Vid. le Case Stevenson versus wood Trin. 10 Jac. B. R. Rot. 1491. in Bulstr. Rep. par. 2. wherein these Three points are specially argued, (1) Whether the judge's Delegates may grant Letters of Administration? (2) Whether in their person the King be represented? (3) Whether the Court of Delegates may pronounce Sentence of Excommunication, or not?  
(14.) The High Commission-Court in Causes Ecclesiastical was by Letters Patents, and that by force and virtue of the Statute of 1 Eliz. cap. 1. the Title whereof is, An Act restoring to the Crown the Ancient Jurisdiction Ecclesiastical, etc. the High Commissioners might, if they were competent, that is, if they were Spiritual persons, proceed to Sentence of Excommunication 
l Dyer 23 Eliz. 371. Co. Inst. par. 4. cap. 74. . What the power of this Court was, and whether they might in Causes Ecclesiastical proceed to Fine and Imprisonment, is at large examined by the Lord Coke in the Fourth part of his Institutes, where he reports the judgement and Resolutions of the whole Court of Common Pleas thereon, Pasch. 9 Jac. Reg. upon frequent Conferences and mature deliberation, set down in writing by the order and command of King James. Likewise whom, and in what Cases the Ecclesiastical Courts may examine one upon Oath, or not (there being a penal Law in the Case;) and whether the saying, Quod nemo tenetur seipsum prodere, be applicable thereunto. Vid. Trin. 13 Jac. B. R. Burroughs, Cox, etc. against the High Commissioners. Bulstr. par. 3.  
(15.) The Statutes of 24 H. 8. and 25 H. 8. do Ordain, That upon certain Appeals the Sentence given shall be definitive, as to any further Appeal; notwithstanding which, the King as supreme governor, may after such definitive Sentence grant a Commission of Review or Ad Revidendum, etc. 
m Co. Inst. par. 4. c. 74.  Sir Ed. Coke gives two Reasons thereof, (1) Because it is not restrained by the Statute. (2) For that after a definitive Sentence, the Pope as supreme Head by the Canon Law used to grant a commission Ad Revidendum; and what Authority the Pope here exercised, claiming as supreme Head, doth of right belong to the Crown, and by the Statutes of 26 H. 8. cap. 1. and 1 Eliz. cap. 1. is annexed to the same. Which accordingly was Resolved Trin. 39 Eliz. B. R. Hollingworth's Case; In which Case precedents to this purpose were cited in Michelot's Case, 29 Eliz. in Goodman's Case, 
Lib. 〈◊〉 R●st. fo. 16. Appeal 10 〈◊〉. ib. Rome 389.  and in Huet's Case, 29 Eliz. Also vid. Stat. 8 Eliz. cap. 5. In the Case between Halliwell and Jervoice, where a Parson sued before the Ordinary for Tithes, and thence he appeals to the Audience, where the Sentence is affirmed; then the party appeals to the Delegates, and there both Sentences are Repealed: It was agreed, That in such case a Commission Ad Revidendum the Sentences may issue forth; but then such a Reviewing shall be final without further Appeal: But if the Commissioners do not proceed to the Examination according to the Common Law, they shall be restrained by a Prohibition 
n Mere's Rep. .  
(16.) The Court of Peculiars is that which dealeth in certain Parishes, lying in several dioceses, which Parishes are exempt from the Jurisdiction of the Bishops of those dioceses, and are peculiarly belonging to the Archbishop of Canterbury: Within whose Province there are fifty seven such Peculiars; for there are certain peculiar Jurisdictions belonging to some certain Parishes, the Inhabitants whereof are exempt sometimes from the archdeacon's, and sometimes from the Bishop's Jurisdiction.  
(17.) If a Suit be in the Ecclesiastical Court for a Modus Decimandi, if the Desendant plead payment, it shall be tried there, and no Prohibition may be granted, for that the Original Suit was there well commenced 
o Mich. 14 Jac. B. R. inter G●slin & Harden. Agreed per Curiam. Hob. Rep. Case 314. . So if payment be pleaded in a Suit depending in the Ecclesiastical Court for any thing whereof they have the original cognizance 
p rol. Abr. ver. Prohibition, pag. 306. . But if a man sue for Tithes in the Ecclesiastical Court against J. S. and makes Title to them by a Lease made to him by the Parson; and J. S. there also makes Title to them by a former Lease made to him by the same Parson: so that the Question there is, which of the said Leases shall be preferred. In this case a Prohibition shall be granted, for they shall not try which of the said Leases shall be preferred, although they have cognizance of the Original; for the Leases are Temporal 
q M. 12. Jac. B. R. Wrots and Clifton. per 〈◊〉. Rol. ibid. . If a man having a Parsonage Impropriate make a Lease for years of part of the Tithes by Deed, and the Deed be denied in the Ecclesiastical Court, and Issue taken thereon, a Prohibition shall be granted 
r Pasch. ● Jac. B. per Cur. Rol. ibid. . If a Parson compound with his Parishioner for his Tithes, and by his Deed grant them to him for a certain Sum for one year according to Agreement, and after he sue the Parishioner in the Ecclesiastical Court for Tithes in kind: no Prohibition to be granted on that discharge by Deed: for they may well try that, having cognizance of the Principal 
s 8 E. 4. Rol ibid. nu. 6. . If a Parson Lease all the Tithes of his Benefice to the Parishioner, and after sue him in the Ecclesiastical Court for his Tithes in his hands; no Prohibition to be granted, for the Lease is a good discharge there 
t 8 E. 4. 14. per Cho●●. . Likewise, if the Parishioner grant Land to the Parson for and in lieu of his own Tithes, and after the Parson sue him in the Ecclesiastical Court for the Tithes; no Prohibition to be granted, for that matter will be a good discharge there 
u Ibid. . If a Parson sue for Tithes in the Ecclesiastical Court, and the Defendant there plead an Arbitrement in Bar, they shall try that there; and no Prohibition to be granted upon that, etc. for by intendment it is a good discharge there 
x P. 12 Jac. per cur. Prohibition denied. Tun. 12 Ja. B. R. inter R●ynolds and H●yes. Adjudge. and Consultation granted. . Likewise, if a Parson sue for Tithes in the Ecclesiastical Court, and the Defendant there plead a Lease of them by Deed by the Parson to him rendering Rent; to which the Plaintiff says, the Rent was reserved upon condition of nonpayment to be void, and averrs, that it was not paid at a certain day, and the other pleads payment at the day: This shall be tried there, and no Prohibition granted 
y Tr. 16 Ja. B. R. inter Grishn and Bulsust. per Cur. Rol. ibid. nu. 1 l. . If a Parson Lease by Deed the Tithes of the Parish, and after sues for the Tithes in the Ecclesiastical Court, and there the Lease is pleaded, where the Question between them is, Whether it be the Tithes of the whole Parish, or only of some particular things? yet no Prohibition lies, for they have cognizance of the Original; but if they judge contrary to the Common Law, a Prohibition lies after Sentence 
z Mich. 13 Car. B. R. inter Dr. Peclington and St. Saint John. . If a man sue for a Legacy in the Ecclesiastical Court, and the Defendant plead a Release in Bar, and the Plaintiff deny it; that shall be tried there, for that it arises from the Original cause whereof they have the Jurisdiction 
a Mich. 15 ●re B. R. inter Percher & Wheble per Cur. Prohibition denied. Hob. Rep. 255 Anonymus. . If an Administrator sue for a Legacy due to the Deceased in the Ecclesiastical Court, and the Defendant plead the Release of the Deceased in Bar, and the Plaintiff avoid it, for that the Deceased was an idiot; That Ideocy shall be tried there, and no Prohibition granted, for that they have Jurisdiction of the Original matter 
b Dict. Cas. Percher & Wheeble. Prohibition denied but against the Opinion of Warburton. . If a Parson sue in the Ecclesiastical Court, and the Defendant there plead, that the Plaintiff was presented upon a Simonaical Contract against the Stat. of 31 Eliz. That shall be tried there, for that they have Jurisdiction of the Original thing 
c Mich. 8 Jac. B. R. Pen's Case. . But the Ecclesiastical Court can take no cognizance of a custom whereby the Inheritance is perpetually charged, although the thing Customable be cognizable by them; And therefore if the churchwardens of the Parish of S. Libel in the Ecclesiastical Court against J. S. Farmer of the Farm of D. for a Contribution to the Reparation of the Church, and allege, that part of the Farm lies in the Parish of S. and part thereof in the Parish of W. and allege a custom, that the Farmers of the said Farm have used time out of mind to contribute to the Reparation of the Church of S. throughout the whole Farm: if the Defendant saith, that part of the Land of the said Farm lieth within the Parish of W. and that it had used time out of mind, etc. for that part to contribute to the Church of W. and not to S. and so deny the said Prescription: This shall not be tried in the Ecclesiastical Court, but at the Common Law, and for that a Prohibition lies; for they shall not try a custom in the Ecclesiastical Court, by which the Inheritance is to be perpetually charged 
d Tr. 16 Jac. B. R. Between the churchwardens of Steevenage and Green. Resolved. . If A. the Parson of D. sue for Tithes in the Ecclesiastical Court against B. who pleads a Lease for years made to him by the Parson; To which A. the Parson Replies, That he was nonresident, and absent 80 days and more in such a year, etc. from his Benefice, by which the Lease became void: No Prohibition lies upon that plea, for that it is grounded on the Statute of 13 Eliz. and although it was Objected, That the Judges Ecclesiastical shall not have the Exposition of a Statute; yet for that they have Jurisdiction of the Original cause, they shall have power to try that which incidently doth arise from thence; and the Prohibition was denied 
e Hill. 14 Car. B. R. inter St. Tho. Lucy and Dr. Lucy per Cur. Roll. ubi supr. p. 308. nu. 22. .  
(18.) A Prohibition was prayed upon the Statute of 23 H. 8. for suing for a Legacy of ten pounds in the Prorogative Court, whereas the party did dwell in another diocese; but because the Will was proved in that Court, 
Mich. 3 Car. C. B. Smith and Executors of Poyndrell's Case. Cro. par. 3.  and there Sentence was given for the Legacy, and an Appeal upon the Sentence to the Delegates, where it was affirmed, and endeavour was to stay the Suit by the Statute, the party having so long allowed of the Jurisdiction of the Court; Adjudged, the party came too late now to have a Prohibition.  
(19) In Norwood's Case it was held, That where a man is sued in the Ecclesiastical Court for slanderous words, a General Pardon doth not aid the party, for staying the Suit there, which is for or ad instantiam partis; But contrary, where the party is sued there ex officio Judicis.  
(20.) In order to a Prohibition it was surmised, That the Defendant was a Clerk, and assaulted his Servant, and he coming to keep the Peace and to aid his Servant, 
Hill. 41 Eliz. B. R. Kelley & Walker's Case. Cro. par. 1. Vid. More, Case 1227.  laid his hands peacably upon the Defendant; for which he sued him in the Ecclesiastical Court, where he pleaded this matter, and they would not allow of his plea: It was said by the Justices, That this Case was out of the Statute of Articuli Cleri & circumspect agatis; for here the party had (Quaere by what Law? for this is not in the Case of Se Defendendo) good cause to beat the Clerk, and a Prohibition was granted.  
(21.) By the Justices, if Issue be joined, whether a Church be void by Session, Deprivation, 
Pasch. 6 Eliz. More's Rep.  or Resignation, it shall be Tried by the country, because it is a thing mixed; for the Avoidance is Temporal, and the Deprivation is Spiritual: But hability, Bastardy, ne unque accouple en Loyal Matrimony shall be tried by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the Writ shall be tried by the Country.  
(22.) A Sentence was given definitive in the Ecclesiastical Court in a Suit there for Tithes, 
Girrye's Case. More's Rep.  pro triplici valour; a Prohibition was prayed; a special Prohibition was awarded, That they should not proceed to the Execution of the Sentence, as to the triple value, because that Court is not to give the triple value, but the double value only.  
(23.) In a Case between a Parson and churchwardens against one Reynolds, it was suggested, That all those who had the House wherein the said Reynolds did dwell, had used to find meat and drink for the Parson and them, 
Reynold's Case. More's Rep.  going in Procession in Rogation-week, at his house; and because he did not find them meat and drink, they sued him in the Ecclesiastical Court, and a Prohibition was awarded, because the custom was a custom against the Law.  
(24.) In Babington's Case it was Resolved, That if one be sued in the Ecclesiastical Court ex Officio, 
More. Case 1235.  or by Libel, and he demand the Copy of the Libel which is denied; That a Prohibition lieth in such case. Vid. Stat. 2 H. 4.  
(25.) In a Prohibition upon a Libel in the Ecclesiastical Court, where the Suit was for Tithe-Apples, in discharge of which he there pleaded an Award, 
Pasch. 12. Jac. B. R. Parker against Remp. Bulstr. par. 2.  which was, That he was to pay so much for the Tithe; pleads there the Arbitrement, the which plea they refused, supposing this to be void: upon this a Prohibition prayed. Coke, We will not grant a Prohibition in this case: So in a Suit there for a Legacy, if payment of the same be there pleaded, which is not sufficient, the payment is Triable there by 1 R. 3. fol. 4. When the Original gins in the Ecclesiastical Court, although that afterwards a matter happens in Issue, which is Triable at the Common Law, yet this shall be tried there by the Ecclesiastical Law: As if one do sue there for a Horse to him devised, the Defendant there pleads, that the Devisor did give this Horse unto him in his life time; This is Triable by our Law, yet this shall be tried there by their Law. In the same manner it is, where the Original doth begin here, the same shall be tried here by our Law, as in a Quare Impedit, able, or not able; if it were otherwise, they should there try nothing, This is belonging to them; But if they will there draw the matter, ad aliud examen, as upon proof of a Deed, they judge otherwise than we do: As in case of a Lease for years to be made, they hold the same to be Traditione, or void; And so a Grant of Goods to be delivered, or not good. If they will judge in Common Law-matters, otherwise than we do, there in such case a Prohibition lies: That which we call Orders, they amongst them do call Acts: The Court all clear of Opinion, That this plea of the Award there pleaded, 
Mich. 1. Car. B. R. Bulstr. par. 3.  and by them refused, no ground for a Prohibition; and so by the Rule of the Court a Prohibition was denied. And in Dicke's Case against Browne a Prohibition was denied, and a Consultation granted, because the Ecclesiastical Court (as was then admitted) having cognizance of the Principal, hath cause also there to determine of the accessary.  
(26.) If a Parson sue upon the Stat. of 2 Ed. 6. in the Ecclesiastical Court for the double value for not setting forth the Tithes, and the Defendant surmise, That he did set them forth, and that they would not there allow or admit the proof thereof by one Witness; no Prohibition lies for that, because they have the cognizance of the matter 
f Hill. 9 Car. B. R. inter Yelle and Sir Ed. powel. Vid. Roll. Ab●. Prohibition, pag. 299. nu. 10. . In this case the Prohibition was denied per Curiam.  
(27.) If the Bounds of a Village in a Parish come in question in the Ecclesiastical Court, in a Suit between the Parson Impropriate and the Vicar of the same Parish, as if the Vicar claim all the Tithes within the Village of D. within the Parish, and the Parson all the Tithes in the residue of the Parish; and the question between them is, Whether certain Lands whereof the Vicar claims the Tithe, be within the Village of D. or not, yet inasmuch as it is between Spiritual persons, viz. between the Parson and the Vicar, although the Parson be a layman, and the Parsonage appropriate a Lay-see, yet it shall be tried in the Ecclesiastical Court, and no Prohibition be granted; And in this case the Prohibition was denied 
g Hill. 15 Ca●. B. R. Between Ives and Weight. per Cu●iam. .  
(28.) Where Suit hath been in the Ecclesiastical Court for something Spiritual mixed with other matter Triable at Common Law; In such case a Prohibition hath been granted as to the matter Triable by the Common Law, and not as to the rest, if they may be severed 
h Mich. 14 J●. B. R. Fish and chamberlain Resol. Contra M. 8 Jac. per Cur. Jener's Case. Roll. Abr. p. 314. . As if a Suit be in the Ecclesiastical Court to avoid the Institution of one is Instituted to A. his chapel of Ease as he pretends; if the other suggest, That A. is a Parochial Church of itself: a Prohibition lies as to a Trial, whether it be a Parochial Church of itself or not, for that they shall not try the Bounds of the Parish; but not as to a Trial concerning the Institution, for that belongs to the Ecclesiastical Court to examine whether it be well done, or not 
i Case Fish and chamberlain. . But Houghton said, they cannot well try the Institution without trying the Bounds of the Parish 
k Roll ubi supr. . If a Testament be made of Lands and Goods, and there be a Suit in the Ecclesiastical Court for the Goods, and the question be, whether the Testator did revoke his Will in his life time, or not: a Prohibition lies as to the Land, and not as to the Goods 
l Mich. 13. Jac. B inter Athil & Ath●l. Resolve. . So if a man sues for the Probat of a Testament in the Ecclesiastical Court, and in the Testament there be Lands devised, and other personal Goods: a Prohibition lies as to the Land, but not as to the rest 
m Mich. 14. Jac. B. R. Bancroft's Case. . Upon an Allegation in such case, That the Devisor revoked his Will before his death, a Prohibition was granted as to the Land 
n Hill 14 Jac. B. R. Nevil and Boyer vers. Winchcomb. .  
(29.) If a man be sued out of his diocese, and there Answers without taking Exception thereunto, and afterwards Sentence be given against him, he shall not after have a Prohibition, for that he did not take Exception to the Jurisdiction before, but affirmed the Jurisdiction; In this case Prohibition hath been denied 
o Pasch. 15 Jac. B. R. Inter Puds●y and Richardson. per Cur. . If it appears in the Libel, that the Court hath not Jurisdiction of the cause, a Prohibition lies after Sentence; but otherwise it is, if it doth not so appear in the Libel, but by averment 
p Mich. 8 Jac. B. . Generally, if a Suit be in the Ecclesiastical Court, and Sentence there given for the Plaintiff, and thereupon the Defendant Appeals, and after pray a Prohibition; no Prohibition is to be granted, although if he had come before Sentence, it ought to have been granted, for that it is inconvenient, after so much expense and no Exception taken to the Jurisdiction, then to grant a Prohibition 
q Hill. 9 Car. B. R. Friz●well's Case. . Where a man by intendment shall have remedy by Appeal, no Prohibition lies; And therefore if a man devise a Legacy to B. to be paid him within one year after his death, Provided, that if he die within the year, that then the Legacy shall be void, and shall be divided between D. and E. and after B. die within the year, and his Executor sue for the Legacy, and Sentence given for him, for that they there held the Condition to be void: yet no Prohibition lies, for that by intendment he hath his remedy by Appeal; and in this case a Prohibition was denied 
r Mich. 21 Jac. B. R. Clak's Case Resolved. . If a man hath a Prohibition on a Libel for Tithes of Faggots, on a Suggestion, that the Faggots were made of great Trees above twenty years' growth, and in the Suggestion the quantity of Faggots be mistaken; yet if it appears that he made his Suggestion according to the Copy of the Libel given him by his Proctor, no Consultation shall be brought, for by the Statute of 2 H. 5. he ought to have a true Copy of the Libel 
s Mich. 4 Jac B. R. inter Swine●●on and Man, Adjudged. .  
(30.) The Case was, where A. sued B. for Tithes within the Parish of C.— B. said, they were within the Parish of D. and the Parson of D. came pro interesse suo, and they proceed there to Sentence. Question, if in such a Parish or such a Parish, shall be tried by the Law of the Land or of the Church? Wray said, It was Triable by the Common Law: Fenner said, the Pope hath not distinguished of Parishes, but Ordained, that Tithes shall be paid within the Parish 
t Strans●am and Cullington's Case. Cro. par. 1. .  
(31. K. ●arson of S. sued C. in the Spiritual Court for Tithes of certain Lands in the Parish of S.— D. Plaintiff in the Prohibition, came pro interesse suo, and said there was a custom within the Parish of S. that the Parson of H. shall have Tithes 13 Cheeses of the Lands in S. and in recompense thereof the Parson of S. had 13 Cheeses for the Tithes of H. It was said, the Right of Tithes were in question, and not the Bounds of the Parish, and therefore no Prohibition; and of that Opinion was the Court, and a Consultation awarded 
u Dullingham and Ryfe●●y's Case. Cro. ib. .  
(32.) If an Administration be granted to A. where it ought not to be granted to him, and after the Administration be Repealed, and granted to B. for that he is the next of Kin; In this case B. may sue A. in the Ecclesiastical Court to Account for the profits of the Goods and Chattels of the Deceased during his time, and no Prohibition to be granted, for B. cannot have an Action of Trespass against A. nor hath he any remedy for them at the Common Law 
x Hill. 15 Jac. B R. Wadsworth and Andrew's Case, adjudged. .  
(33.) A Parson may sue in the Ecclesiastical Court for a Modus Decimandi, and no Prohibition shall be granted, for it is in the nature of Tithes 
y Co. 11. D●. Grant, 16. . But a Prescription cannot be tried in the Ecclesiastical Court, for that it ought to be tried by a Jury, which cannot be there 
z Temp. E. 1. Roll. Abr. p. 283. nu. 16. . Yet if a Parson Prescribe to have Tithes of things not Tithable, as of Rents of Houses, he may sue for that in the Ecclesiastical Court, and no Prohibition lies; yet no Tithes de jure ought to be paid of them 
a Co. ubi supr. . So he may sue in the Ecclesiastical Court for the Tithes of great Trees, which he claims by Prescription, and no Prohibition lies, yet de jure they are not Tithable. Quaere 9 H. 6. 46.  
(34.) If there be a custom, that after the Grass is cut and set into Grass-cocks, the Tenth Cock be assigned to the Parson, and that by the custom it shall be lawful for him to make the same into Hay upon the Land, and the Owner of the Land disturb him from making the same, he may sue for that in the Ecclesiastical Court; and no Prohibition shall be granted, for that is incident to the custom to come there to make the same into Hay 
b Mich. 14 Jac. B. Reynold, and N●wbery. Roll. Abr pag. 284. . Also the proper place to sue for a Legacy, is the Ecclesiastical Court, for that it is not any Debt, but only due by the Will. If A. do own to B. five Marks, and he Devise by his Will, that whereas he doth owe five Marks to B. his Executor shall make it 10 l. The Suit for that 10 l. may be in the Ecclesiastical Court, for that is not any Addition to the five Marks, but a new Sum given in satisfaction of the five Marks, and so no part of the 10 l. any Debt, but only a Legacy 
c Mich. 22 Jac. B. R. Churley and wood Prohibition denied. . Also if a man devise a Rent out of his Stock and House which he hath for years, the Devisee may sue for that Rent in the Ecclesiastical Court, for that it issues out of a Chattel, and no remedy for it at the Common Law 
d Hill. 7 Jac. B. May James Case. per Curiam. Prohibition denied. . If a man possessed of a Lease for years, Devise that his Executor shall out of the profits thereof pay 20 l. to each of his Daughters at their full Age, the Executor may be sued in the Ecclesiastical Court to put in Sureties to pay the Legacies, and no Prohibition shall be granted, for that is to issue out of a Chattel 
e Hill. 11 Jac. B. Prowe's Case. per Cur. .  
(35.) If there be a Question between two persons touching several Grants, which of them shall be Register of the Bishop's Court; that shall not be tried in the Bishop's Court, but at Common Law, for although the Subjectum circa quod be Spiritual, yet the Office itself is Temporal 
f Hill. 8 Jac. B. said by Coke to be skinny and Mingey's Case. . Also if a man set forth his Tithes by severance of Nine parts from the Tenth, and after carry away the Tenth part; the Parson cannot sue for that in the Ecclesiastical Court, for that by the severance of the Nine parts it did become a Chattel, for which he might have his Action of Trespass 
g Dubitatur Pasch. 40 Eliz. B. R. inter Leigh and wood .  
(36.) It is Reported. That if a Suit be in the Ecclesiastical Court against a Woman for exercising the Trade of a Midwife without licence of the Ordinary contrary to the Canons, a Prohibition lies, for that is not any Spiritual Function whereof they have cognizance. And in this case Prohibition was granted to the Court of Audience 
b Tr. 9 Car. B. R. Between Benskin and Cipes. Resolved. .  
(37.) The Ecclesiastical Court may not try the Bounds of a Parish, and therefore if Suit be there on that matter, a Prohibition lies 
i Mich. 14 Jac. B. R. Fisher and Chamberlain. . So if the Question there be, whether such a Church be a Parochial Church, or but a chapel of Ease, a Prohibition also lies 
k Tr. 3 Jac. B. The Churchwarden's Case of St. sampsons in Cornwall. . In the Case between Elie vicar of Alderburne in the Country of Wilts and Cook, Prohibition was granted, and thereupon Issue joined, whether several Parishes, and tried by Verdict to be one Parish.  
(38.) Where a man sued for a Legacy in the Ecclesiastical Court against an Executor, and he there pleaded, that he had not Assets save only to pay the Debts, and the said Court disallowed of that plea, a Prohibition was granted 
l Pas●●. 15 Jac. B. R. Between Sing●eten and Wade. .  
(39) If a man sues in the Ecclesiastical Court to have an Account for the profits of a Benefice, a Prohibition lies, for that it belongs to the Common Law 
m Hill. 3 Jac. B. Ad. judged. . But if the Suit be for the profits taken during the time of Sequestration, no Prohibition lies 
n Ibid. .  
(40.) In words and Clyston's Case, where the Plaintiff sued for Tithes in the Ecclesiastical Court by virtue of a Lease made by the Vicar of T. for three years: The Defendant prayed to be discharged of Tithes by a former Lease: The Plaintiff in the Ecclesiastical Court prayed a Prohibition to stay his own Suit there; It was granted by the Court, because they are not to meddle with the trial of Leases, or real Contracts there, although they have Jurisdiction of the Original cause, viz. the Tithes 
o Cro. par. ●. .  
(41.) In Collier's Case, upon the endowment of a Vicarage upon an Appropriation, it was Ordained by the Bishop, That the Vicar should pay yearly 20 l. to the Precentor in the Cathedral Church of S. to the use of the Vicar's Chorals of the said Church: It was held by the Court, that this is a Pension, for which Suit shall be in the Ecclesiastical Court 
p Trin. 41 Eliz. B R. Collier's Case. Cro. par. 1. .  
(42.) In the Case between Draiton and Cotterill against Smith for a Prohibition, it was said by Coke Chief Justice, 
Mich. 11 Jac. B. R. Bulstr. par. 2.  That if the Parson sues in the Ecclesiastical Court for Tithes, and the other pleads a Modus to the Vicar, this Modus now can never come in question by this Suit between the Parson and him, for Tithes due unto the Parson, but this is to be questioned and determined there in the Ecclesiastical Court to whom the Tithes do belong, whether to the Parson or to the Vicar? And this hath been divers times Adjudged in this Court, and in the Court of C. B. in Bushe's Case, for Pankeridge-Church; and it hath always been clearly held, That if the Right of Tithes come into question between the Parson and the Vicar, to which of them the same doth belong; This is a Suit properly belonging to the Ecclesiastical Court to hear and determine the same, and in such case they are not there to be ousted of their Jurisdiction. And this being now a Question between the Parson and the Vicar, to which of them Tithes did belong, for which the Modus is alleged to be paid; therefore no Prohibition is to be granted in this case, though there be a Modus suggested to be paid unto the Vicar, for all Tithes here due to the Vicar and Parson, the Parson suing for the Tithes there, as due unto himself, and not unto the Vicar. And so the Question is as touching the Right of Tithes between the Parson and the Vicar; which is a Suit proper for the Ecclesiastical Court. And this is to be observed for a sure Rule, in such a Case, never to have a Prohibition granted; The Reason of this is, because that the Modus suggested to be paid, cannot come in question upon this Suggestion of this payment unto the Vicar, but only the Right of Tithes, to whom they belong, whether to the Parson or to the Vicar; and divers judgements have been accordingly given in the like Case: And so by the Rule of the whole Court a Prohibition was denied.  
(43.) Whether, 
Mich. 14 Jac. B. R. Harding and others against Goseling. Bulstr. par. 3.  and how far, and in what manner the Ecclesiastical Court may exercise its Jurisdiction in cognizance of a Modus Decimandi is at large argued and debated at the Bench in Harding's Case against Goseling, where in a Prohibition to stay proceed in the Ecclesiastical Court, upon a Suit there for Tithes, where G. Libelled against H. for a Modus Decimandi, being not paid, and there H. alleged another Modus Decimandi, which Allegation the Ecclesiastical Court refusing to admit, a Prohibition was thereupon prayed in B. R. In this case Doderidge Justice said, That the Modus Decimandi is as well due to the Parson, as Tithe is at the Common Law; and if the Parson do Libel in the Ecclesiastical Court for a Modus Decimandi (as he may do) and another Modus is there alleged, and this refused, the Ecclesiastical Court may try and determine this matter touching this Modus, and no cause to grant a Prohibition for this Refusal: But if the Ecclesiastical Court doth deny to admit the Allegation for the Modus upon this ground only, because the practice of the Ecclesiastical Law and our Law do differ in the manner of Proof; as for default of two Witnesses, one being allowed at Common Law, but not at the Ecclesiastical Law: In this Case a Prohibition is grantable; but otherwise the Ecclesiastical Jurisdiction may as well try the Modus Decimandi, as the Right of Tithes. But if a Parson doth Libel there for Tithes in kind, and a Modus is alleged and there pleaded, but refused to be admitted or allowed: in that Case a Prohibition is grantable upon such Refusal. Haughton Justice, In this Case a Prohibition ought to be granted, otherwise in such cases, upon every small difference alleged in the Modus, that Court may try and determine the validity of every Modus Decimandi, which the Ecclesiastical Court cannot do by the Law: for that Court is not permitted by our Law to try a Modus Decimandi; and therefore that Court proceeding to try this Modus, which is determinable by Common Law, and not in the Ecclesiastical Court, a Prohibition ought to be granted. But Doderidge Contra, No Prohibition is in this case to be granted, for the Ecclesiastical Court may well try and determine this Modus by that Law; The Libel being there originally for the Modus: But if touching the Proof of this Modus, as aforesaid, the difference of proceed between the two Laws, (one Witness being sufficient at the Common Law, not so at the Ecclesiastical) be the ground of the Refusal of the Allegation, than a Prohibition is to be awarded, so is 1 R. 3. and 10 H. 7. but if the Ecclesiastical Court only proceed to try the Modus, for which the Libel was there, this by Proof may well be there examined. Croak Justice, at this time delivered no opinion at all in this Case. Afterwards, this Case being moved again, Doderidge, If a Parson do Libel in the Ecclesiastical Court for a Modus, whereas in truth there was not Modus, but only a composition of late time between the Parson and the Parishioners, to pay so much yearly for Tithes, and not otherwise: In this Case, because that the Common Law and the Ecclesiastical do differ in the point of Prescription, (Ten years continuance being a good Prescription by that Law, but not so by Ours) in this case a Prohibition is grantable. Houghton, A Modus Decimandi is properly to be tried and determined by the Common Law, and not in the Ecclesiastical Court, for that these two Laws differ in many things, as in point of proof of a Modus, and in the point of Prescription. Croke, A Special Modus being Libelled for in the Ecclesiastical Court, is there to be tried. Doderidge, If the Ecclesiastical Court doth refuse to allow of the Proof, allowable at the Common Law, a Prohibition lies to stay proceed for Tithes there: And where there is a Modus, if they refuse to pay this, the Parson may sue for this Modus in the Ecclesiastical Court, and this is to be tried there; But if in such case where there is a Modus, if the Parson will Libel to have his Tithe in kind, and the other shows there this Modus, which they will not allow of, a Prohibition lies, and this shall be tried by the Common Law. The Court declares, That they would see the Suggestion, and therefore by the Rule of the Court they were to make their Suggestion, and to show the same to the Court, as they would stand unto it; and in the mean time the Suit in the Ecclesiastical Court to be stayed.  
(44.) 
Pasch. 9 Jac. C. B. en Ireland, en le Case de Commendae, le Roy verse. Cyprian Horsefall & Rob. Wale. Davis Rep.  To conclude this Chapter, it may not be impertinent to inquire, when and how the Canon Law was introduced into this Realm of England; In the Case of a Commendam that was Adjudged in Ireland it was observed, That after the Bishop of Rome had assumed or tooken upon him to be the Spiritual Prince or Monarch of all the World, he attempted also to give Laws to all Nations, as one real Mark or Signal of his Monarchy; but they well knowing, Quod ubi non est condendi authoritas, ibi non est parendi necessitas, did not impose their Laws at first peremptorily on all Nations without distinction, but offered them timide & precario. And therefore he caused certain Rules in the first place to be collected for the Government of the Clergy only, which he called Decreta, and not Leges vel Statuta; These Decrees were published in An. 1150. which was during the Reign of King Stephen. And therefore what the Lord Coke observes in the Preface to the Eighth part of his Reports, Quod Rogerus Bacon, frater ille perquam Eruditus, in Libro De impedimentis Sapientiae, dicit, Rex quidem Stephanus, allatis Legibus Italiae in Angliam, Publico Edicto prohibuit ne in aliquo detinerentur, may probably be conjectured, to be meant and intended of those Decrees which were then newly compiled and published: Yet these Decrees being received and observed by the Clergy of the Western Churches only (for the Eastern Church never received any of these Rules or Canons, Kelw. Rep. 7 H. 8. fo. 184) the Bishop of Rome attempted also to draw the Laity by degrees into obedience to these Ordinances: and to that purpose, in the first place he propounds certain Rules or Ordinances for Abstinence, or days of Fasting, to be observed as well by the Laity as the Clergy, which were upon the first Institution thereof called by the mild and gentle name of Regationes, as Marsilius Pat. lib. Defensor. Pacis, par. 2. cap. 23. hath observed; and thence, it seems, the Week of Abstinence, a little before the Feast of Pentecost, was called the Rogation-week, that time of Abstinence being appointed at the beginning by that Ordinance which was called Rogatio, and not Praeceptum vel Statutum. Now when the Laity out of their devotion had received and obeyed these Ordinances of Abstinence, than the Bishop of Rome proceeds further (De una praesumptione ad aliam transivit Romanus Pontifex, as Marsil. Pat. there says) and made many Rescripts and Orders per Nomen Decretalium, which were published in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout. Vid. Matth. Par. Hist. mag. 403. and these were made to bind all the Laity, and Sovereign Princes as well as their Subjects, in such things as concerned their Civil and Temporal Estates; As that no layman should have the Donation of an Ecclesiastical Benefice: That no layman should marry within certain Degrees, out of the degrees limited by the Levitical Law: That all Infants born before Marriage, should be adjudged after Marriage Legitimate, and capable of Temporal Inheritance: That all Clerks should be exempt from the Secular power; and others of the like nature. But these Decretals being published, they were not entirely and absolutely received and obeyed in any part of Christendom, but only in the Pope's Temporal Territory, which by the Canonists is called, Patria obedientiae. But on the other hand, many of those Canons were utterly rejected and disobeyed in France and England, and other Christian Realms, which are called Patriae Consuetudinariae; As the Canon which prohibited the Donation of Benefices per manum Laicam was ever disobeyed in England, France, the Kingdom of Naples, and divers other Countries and commonwealths; And the Canon, to make Infants Legitimate that were born before Marriage, was specially rejected in England, when in the Parliament held at Merton, omnes Comites & Barones una voce responderunt, Nolumus Leges Angliae mutari, quae hucusque usitatae sunt, etc. And the Canon, which exempts Clerks from the Secular power, was never fully observed in any part of Christendom. Kelw. 7 H. 8. 181. b. which is one infallible Argument, That these Ordinances had not their force by any Authority that the Court of Rome had to impose Laws on all Nations without their consent, but by the approbation of the people which received and used them. For by the same reason whereby they might reject one Canon, they might reject all the other. Vid. Bodin. lib. 1. de Rep. cap. 8. where he saith, That the Kings of France, on the erection of all Universities there, have declared in their Charters, that they would receive the Profession of the Civil, and Canons, to use them at their discretion, and not to be obliged by these Laws. But as to those Canons which have been received, accepted, and used in any Christian Realm or commonwealth, they by such acceptation and usage have obtained the force of Laws in such particular Realm or State, and are become part of the Ecclesiastical Laws of that Nation; And so those which have been embraced, allowed, and used in England, are made by such allowance and usage, part of the Ecclesiastical Laws of England; By which the interpretation, dispensation, or execution of these Canons, being become Laws of England, doth appertain sole to the King of England, and his Magistrates within his Dominions, and he and his Magistrates have the sole Jurisdiction in such cases, and the Bishop of Rome hath nothing to do in the interpretation, dispensation, or execution of those Laws in England, although they were first devised in the Court of Rome; No more than the Chief Magistrate of Athens or Lacedaemon might claim Jurisdiction in the Ancient City of Rome, for that the Laws of the XII. Tables were thither carried and imported from those Cities of Greece; and no more than the Master of New-Colledge in Oxford, shall have Command or Jurisdiction in Kings-Colledge of Cambridge, for that the private Statutes whereby Kings-Colledge is governed, were, for the most part, borrowed and taken out of the Foundation-Book of New-Colledge in Oxford: And by the same reason the Emperor may claim Jurisdiction in Maritime causes within the Dominions of the King of England, for that we have now for a long time received and admitted the Imperial Law for the determination of such Causes. Vid. Cawdries Case, Co. par. 5. and Kelw. Rep. 184. a. Now when the Bishop of Rome perceived that many of his Canons were received and used by divers Nations of Christendom, he under colour thereof claimed to have Ecclesiastical Jurisdiction in every Realm and State where these Canons were received, and sent his Legates with several Commissions into divers Kingdoms, to hear and determine Causes according to these Canons: which Canons although neither the Pope nor his Ministers, at the first venting and uttering thereof, dared to call Laws, Ne committerent crimen Laesae Majestatis in Principes as Mar●il. Pat. lib. Defensor. pacis, par. 2. cap. 23. observes) who also says, That these Canons being made by the Pope, Neque sunt humanae Leges, neque divinae, sed documenta quaedam & Narrationes; yet when he perceived that these Canons were received, allowed, and used in part by several Nations, he compiled them into Volumes and called them Jus Canonicum, and Ordained that they should be read and expounded in public Schools and Universities, as the Imperial Law was read and expounded, and commanded that they should be observed and obeyed by all Christians on pain of Excommunication, and often endeavoured to put them in execution by Coercive power, and assumed to himself the power of interpreting, abrogating, and dispensing with those Laws in all the Realms of Christendom at his pleasure, so that the Canonists ascribe to him this prerogative, Papa in omnibus jure positivis, & in quibusdam ad jus divinum pertinentibus, dispensare potest, quia dicitur omnia Jura habere in Scrinio pectoris sui, quantum ad interpretationem & dispensationem. Lib. 6. de Const. cap. licet. About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the University of Cambridge. vid. Stow and Walsingham in that year. Also the Manusc. libr. 6. Decretal. in New-Colledge Library at Oxford hath this Inscription in the Front, Anno Domini 1298. which was in the year 26 Ed. 1. 19 Novembr. in Ecclesia Fratrum Praedicator. Oxon. fuit facta publicatio lib. 6. Decretal. whereby it appears when it was that the Canon Law was introduced into England. But the Jurisdiction which the Pope by colour thereof claimed in England was a mere Usurpation, to which the Kings of England from time to time made opposition, even to the time of King H. 8. And therefore the Ecclesiastical Law which Ordained, That when a man is created a Bishop all his inferior Benefices shall be void, is often said in the Bishop of St. David's Case, in 11 H. 4. to be the Ancient Law of England. And 29 Ed. 3. 44. a. in the Case of the Prebend of Oxgate, it is said, That though the Constitution which ousts Pluralities began in the Court of Rome, yet a Church was adjudged void in the King's Bench for that cause or reason; whereby it appears, That after the said Constitution was received and allowed in England, it became the Law of England: Yet all the Ecclesiastical Laws of England were not derived from the Court of Rome; for long before the Canon Law was authorized and published in England (which was before the Norman Conquest) the Ancient Kings of England, viz. Edga●. Aethelstan, Alfred, Edward the Confessor, and others, have with the Advice of their Clergy within the Realm, made divers Ordinances for the government of the Church of England; and after the Conquest, divers Provincial Synods have been held, and many Constitutions have been made in both Realms of England and Ireland; All which are part of our Ecclesiastical Laws at this day. Vid. Le Charter de William le Conqueror. Dat. An. Dom. 1066. irrot. 2 R. 2. among the Charters in Archiv. Turris Lond. pro Decano & Capitulo Lincoln. Willielmus, Dei gratia, Rex Anglorum, etc. Sciatis, etc. Quod Episcopales Leges quae non bene, nec secundum Sanctorum Canonum praecepta, usque ad mea tempora in Regno Angliae fuerunt, Communi Concilio Episcoporum meorum, & caeterorum Episcoporum, & omnium Principum Regni mei, emendandas judicavi, etc. See also Girald. Cambrens. lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Castle, wherein it was Ordained, Quod omnia divina, juxta quod Anglicana observat Ecclesia, in omnibus partibus Hyberniae amodo tractentur. Dignum enim & justissimum est, ut sicut Dominum & Regem ex Anglia divinitus sortita est Hybernia, sic etiam exinde vivendi formam accipiant meliorem. But the distinction of Ecclesiastical or Spiritual Causes from Civil and Temporal Causes, in point of Jurisdiction, was not known or heard of in the Christian World for the space of 300 years after Christ; For the causes of Testaments, of Matrimony, of Bastardy, and Adultery, and the rest, which are called Ecclesiastical or Spiritual Causes, were merely Civil, and determined by the Rules of the Civil Law, and subject only to the Jurisdiction of the Civil Magistrate; But after the Emperors had received the Christian Faith, out of a zeal they had to honour the learned and godly Bishops of that time, they singled out certain special Causes, wherein they granted Jurisdiction unto the Bishops, viz. in Causes of Tithes, because they were paid to men of the Church; in Causes of Matrimony, because Marriages were for the most part solemnised in the Church; in Causes Testamentary, because Testaments were many times made in extremis, when churchmen were present, giving Spiritual comfort to the Testator, and therefore were thought the fittest persons to take the probates of such Testaments. Howbeit these Bishops did not then proceed in these Causes according to the Canons and Decrees of the Church (for the Canon Law was not then known) but according to the Rules of the Imperial Law, 
The Case of Praemunire in Davis Rep. fo. 97.  as the Civil Magistrate did proceed in other Causes; so that the Primitive Jurisdiction in all these Causes was in the supreme Civil magistrate, and though it be now derived from him, yet it still remaineth in him as in the Fountain.   

CHAP. XII.  
Of Churches, chapels, and churchyards.  

1. Ecclesia; what that word imports; the several kinds thereof.  
2. Possessions of the Church protected by the Statute-Laws from Alienation; the care of the Emperor Justinian in that point.  
3. To whom the soil and Freehold of the Church and Church-yard belong, to whom the use of the Body of the Church, to whom the disposal of the pews or Seats, and charges of Repairs.  
4. The Common Law touching the Reparation of Churches, and the disposal of the Seats therein.  
5. The same Law touching Isles, Pictures, Coats of Arms, and Burials in Churches; also of Assaults in Churches and Church-yard.  
6. The penalty of quarrelling, chiding, brawling, striking, or drawing a Weapon in the Church or Church-yard.  
7. Where Prescription to a Seat in a Church is alleged, the Common Law claims the cognizance thereof.  
8. The Immunities anciently of Church-Sanctuary; as also of Abjuration now abrogated and taken away by Statute.  
9 The defacing of Tombs, sepulchers, or Monuments in Churches, punishable at the Common Law; also of Right to pews and Seats in the Church.  
10. The Cognizance of Church-Reparations belongs to the Ecclesiastical Court.  
11. A Prohibition upon a surmise of a custom or usage for Contribution to repair a Church.  
12. Churchwardens are a Corporation for the Benefit, not for the Prejudice of the Church.  
13. Inheritance cannot be charged with a Tax for Repairs of the Church, nor may a perpetual charge be imposed upon Land for the same.  
14. When the use of Church-Books for christen first began.  
15. Chappel; the several kinds thereof; The Canonists Conceits touching the derivation of that word.  
16. Where two Parochial Churches are united, the charge of Reparations shall be several as before.  
17. The Emperor Justinian's Law Provisional, touching the Building of new chapels.  
18. Whether a Seat in the Church, and Priority in that Seat claimed by Prescription, be Triable at the Common Law by Action upon the Case.  
19 A Case in Law touching a Tax made in a Parish for the making of new Bells for the Church.  
20. Whether a Tax for Repairs of the Church may be made by the Church wardens alone, without the Major part of the Inhabitants.  
21. Church-Seats in the generality are in the Ordinaries power to dispose.  
22. Divers other Cases at the Common Law, pertinent to the subject of the premises.  
23. In what respects an Inhabitant in one Parish, having Land in another, may or may not be Taxed, as to the Church of that Parish where the Land lies.  
24. The difference in Law between a parson's grant to a man his own Tithes, and his grant to him the Tithes of another man, as to the validity of the Grant.  
25. Disposal of Seats in the Body of a Church belongs of Common right to the Ordinary of the diocese.  
26. In what respect a man inhabiting in one Parish, shall be charged towards the Reparation of the Church of another, where he hath Land, and in what respects not so.  
27. Rates for Reparation of Churches are cognizable only in the Ecclesiastical Court; and no Prohibition, notwithstanding any inequality in the Rate.  
28. Repairers of a chapel of Ease, not discharged thereby of Reparations of the Mother-Church.  
29. Land in a Parish not to be Rated for the Ornaments of a Church; That Rate to be according to the personal Estate.  
30. In what case a Prohibition lies to a Suit for Reparations of a Church; not so, as to a Rate made by the Major part of the Parishioners for the Ornaments of the Church.  
31. The Bounds of a Parish not Triable in the Ecclesiastical Court, though the difference be between two Spiritual persons.  
32. Prohibition, where a Vicar sued the Parson Impropriate for damages, for cutting down the Trees growing in the churchyard.  
33. Prescription of Repairing a chapel of E●se, no discharge from repairing the Mother-Church.  
34. The charge of Repairing a Church, refers to Land; of providing Ornaments of the Church, to the personal Estate; and how to be apportioned between Landlord and Tenant.  
35. Action of trespass lies for the Heir of such, whose Coat-Armor or Monument in Church or Church-yard, is by any defaced or demolished, be it by the Parson, the Ordinary, or by any other.  
36. A Case in Law touching a disturbance of sitting in certain Seats in a Chancel of a Church.  
37. Certain Cases in Law touching striking in a Church and Church-yard, and drawing a Weapon in the same.  
38. The difference taken between having a Seat in the Isle of a Church, and a Seat in the Body of the Curch.  
39 A Prohibition denied on a Prescription of not Repairing a Mother-Church, in regard such Prescription is merely Spiritual.  
40. The Ecclesiastical Court not to intermeddle with the Precincts of Parish-Churches.  
41. Towards Church-Reparations, all Lands within the Parish, as well of Foreigners as Parishioners, are ratably liable.  
42. Controversies touching Seats in Churches, determinable in the Spiritual, not Temporal Courts; In what Cases the Common Law hath took cognizance thereof.   
(1.) CHURCH [Ecclesia] 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, from the old word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, h. e. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, or rather 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, h. e. evocare, being an Assembly of men gathered out of all Mankind, or evocatus per Evangelium; or from the Hebrew [Cahal] h. e. Congregatio; the true visible Church being a Congregation of Faithful men, in which the pure Word of God is preached, and the Sacraments duly ministered according to Christ's Institution, in all things necessary to the same. This in a Theological sense; but the word [Church] in a Legal sense, as here chief intended, differs from the former as far as Dead Walls do from Living Saints; there being no more here designed to be touched at, than what refers rather to the Place, than to the Persons. Churches are of three sorts, Cathedral, Collegiate, Parochial. The Bishop is the Incumbent of the first: Priors and Abbots were, and Heads of colleges are, Incumbents of the second: and Parsons of the third; commonly called a Rectory, being either a Parsonage or a Vicarage. And that either (1) Ratione dotationis. (2) Fundationis. (3) Fundi.  
(2.) The Emperor Justinian Decreed, That the Lands of the Church should not be sold, alienated, or exchanged, unless it were to the Prince's house, or to or with another like Religious place, and that in equal goodness and quantity, or that it were for the Redemption of Captives 
a Auth. Coll. 2. & 9 and Coll. 5: . But by the Statute of primo Jac. the Possessions of the Church are protected from alienation or diminution in all respects, and so as that they shall remain and continue, according to the true intent of their Foundation, to their Successors for ever, to the uses and purposes therein limited 
b 1 Jac. c. 3. .  
(3.) By the Common Law, the Church and Church-yard are it seems the soil and Freehold of the Parson; but the use of the Body of the Church, and the Repairs and Maintenance thereof is common to all the Parishioners; 
In Eaton's Case against A●liffe, it was said by Hutton, That Seats in the generally are in the power of the Ordinary to dispose. Het●ey's Rep.  albeit the disposal of the pews in the Body of the Church, or an Isle or Chappel joining to the Body, and the disposing of the charges of the Repairs thereof, belong to the Ordinary; insomuch that no man can challenge a Seat in the Body of the Church without showing some special reason for the same. All which appears in the Case of Boothby against Baily, where Boothby being Executor of Gilbert, brought a Prohibition against Baily, and his surmise was, That whereas Sir Bernard Whetston was seized of the manor of Woodford-Hall, and that he and those whose Estate he hath in the same, had used time out of mind, to have a peculiar Pew in the Body of the Church, and that the Defendant by Suit in the Ecclesiastical Court, sought to dispossess them of the same. And by the Opinion of the whole Court, this was no sufficient ground of a Prohibition; for though the Church and Church-yard be in Law the soil and Freehold of the Parson, yet the use of the Body of the Church, and the repair and maintenance thereof is common to all the Parishioners. And for avoiding of confusion, the distribution and disposing of Seats and charges of Repair belong to the Ordinary, and therefore no man can challenge a peculiar Seat without a special reason. But if it had been Prescribed, That Sir Bernard Whetstone, etc. had used time out of mind at their own costs to maintain that Pew, and had therefore had the sole use thereof, the Prescription might have stood and been warrant for a Prohibition, though the Pew were in the Body of the Church. And so it is in the like case of an Isle or Chappel adjoining to the Body of the Church upon the same difference, whether it hath been maintained by the whole Parish, or by some particular persons, like unto the Reasons of a chapel of Ease 
c Case Boothby vers. Baily. Hob. Rep. Parochiarum prima distributio fit per Theodorum Cantuariensem. An. 668. Spelm. Tom. 1. in Concil. Herefordens. .  
(4.) Touching the Reparation of Churches, it hath been Ruled, That he who hath Land in a Parish, though he doth not inhabit there, shall yet be chargeable to the Reparation of the Parish-Church, but not to the buying of the Ornaments of that Church, for that-shall be levied of the Goods of the Parishioners, and not of their Lands, by Sir Hen. Yeluerton, and said to be so formerly adjudged 
d Mich. 19 Jac. Rot. 1791. Case Dodderidge verse. Anthony. Winch. Rep. . And it hath been holden, That if two Churches Parochial be united, the Reparation shall be several as before 
e The Parish of Ashton's Case ver. Castle-Birmidge chapel. Hob. Rep. . And although the Lord of a manor may prescribe to a certain Seat or Pew in the Church, by having time out of mind maintained and repaired the same at the proper costs of himself and Ancestors, yet as to the Common Seats of the Church it is otherwise in respect of the Common Parishioners: As in the Case of Harris against Wiseman, against whom Harris had procured a Prohibition, Wiseman having Libelled in the Ecclesiastical Court against him for a Seat in the Church, which did belong to his House; and it was said by Hobart and Winch only present, That a man, or a Lord of a manor, who had an Isle or a Seat in the Church, etc. and he is sued for that in the Spiritual Court, he shall have a Prohibition; but not every common Parishioner for every common Seat: yet in that case a Supersedeas was granted to stay the Prohibition 
f Case Har●●s vers. Wiseman. Winch. Rep.  It hath also been held, That the Grant of a Seat in a Church to one and his Heirs is not good; for the Case of Brabin and Tradum was, That the churchwardens of D. had used time out of mind to dispose and order all the Seats of the church, whereupon they disposed of a Seat to one, and the Ordinary granted the same Seat to another and his Heirs, and excommunicated all others, who afterwards should sit in the Seat, and a Prohibition was prayed and granted, for this Grant of a Seat to one and his Heirs is not good, for the Seat doth not belong to the Person, but to the House, for otherwise when the person goes out of Town to dwell in another place; yet he shall retain the Seat, which is no reason, and also it is no reason to excommunicate all others that should sit there, for such great punishments should not be imposed upon such small Offenders, an Excommunication being Traditio diab●la 
g Pasch. 16. Jac. B. R. Bra●in and Fradum's Case. Poph. Rep. .  
(5.) In the Case of Day against Beddington and others, upon a Cross-Bill between the parties, for pulling down of painted Glass, Pictures and Arms, in a Window in an Isle of a chapel in the Parish of Wellington in Somerset, these points in the Case were Resolved: (1.) If an Inhabitant there, and his Ancestors time out of mind, etc. have used to Repair an Isle in a Church, and to sit there with his Family, etc. and to bury there, that makes that Isle proper and peculiar for his Family; Otherwise if he had not used to Repair it at his own costs, but with the charge of the Parish; then the Ordinary may appoint who shall sit there from time to time, notwithstanding a use to sit there, only, to the contrary. (2.) If any Superstitious Pictures are in a Window of a Church, or Isle, etc. it is not lawful for any to break them, etc. without licence of the Ordinary; and if any does to the contrary, he shall bind him to his good Behaviour. And so it was in Prickett's Case. (3.) That the Ordinary or churchwarden cannot licence a Parishioner to Bury within the Church: But it ought to be licenced by the Parson; for the Franktenement is in him only. (4.) If Coats of Arms are put in a Window, or upon a Monument in the Church or Church-yard, they may not be broken by the Ordinary, Parson, or churchwardens, or any other; for the Heir shall have his Action upon the Case for that, 9 Ed. 4. 14. for they belong to him, 30 Ed. 3. 9 b. c. (5.) If one be Assaulted in the Church, or within a churchyard, he may not beat the other, or draw a Weapon (although it be in his own defence) there; for it is a Sanctified place, and he may be punished for that by 2 Ed. 6. And so if in any of the King's Courts, or within view of the Courts of Justice; because a Force in that case is not justifiable, though in his own defence 
h Case Day vers. Beddingten and others. Noy's Rep. .  
(6.) For the penalty of Striking or drawing a Weapon in the Church or Church-yard. Vid. Stat. 5 Ed. 6. cap. 4. whereby it is enacted, That if any person shall by words only quarrel, chide, or brawl in any Church or Church-yard, it shall be lawful for the Ordinary of the place, upon proof by two Witnesses, to suspend the Lay-Offender ab ingressu Ecclesiae, and the Clerk-Offender from the ministration of his Office, for such time as to the said Ordinary shall seem meet: 
Co. lib. 6. fo. 29. b. Green's Case. in't. Leg. Inae. cap. 6. Qui in Templo pugnaverit, 120 Solidis noxiam facito. Dyer. 23 Eliz. 177. Case ult.  And if any one shall smite or lay violent hands upon another in any Church or Church-yard, in that case ipso facto, the Offender shall be deemed Excommunicate. But and if any person shall maliciously strike another with any Weapon in any Church or Church yard; or to the intent of striking another with the same, shall but draw a Weapon in any Church of churchyard; the Offender being thereof duly convicted, shall lose one of his Ears if he hath any, or in one of his Cheeks with a hot-Iron be burnt and marked with the letter F, in case he hath no Ears, and besides shall stand ipso facto Excommunicated 
i Stat. 5 Ed. 6. c. 4. . Upon this Statute there was an Indictment against Jasper Colmley and John Colmley of Hoxton in the County of Middlesex, for that they Insultum fecerunt upon John Higham Dr. of physic, in Ecclesia de Shoreditch praedicta; Et predict. Joh. Higham adtunc, etc. ibidem in Ecclesia praedict. de Shoreditch, verbaraverunt, vulneraverunt, & male tractaverunt contra formam Statuti, etc. Upon this the Grand Jury find Billa vera quoad Jasper Colmley, and Ignoramus for John Colmley; And hereupon he appeared and pleaded Not guilty, and found against him. Rolls now moved in an Arrest of judgement, That the Indictment was not good, being Fecerunt, whereas it is found only Billa vera against one. Sed non allocatur, because it was exhibited against Two, and it is but false Latin. Secondly, because the Indictment is contra formam Statuti, and this Offence is not punishable by the Statute, unless that he smote with a Weapon, or drew a Weapon in the Church or Church-yard, or drew a Weapon to that intent, which is not mentioned in the Indictment: And by the Second clause in the Statute, For smiting or laying violent hands, it is Excommunication ipso facto: and it is not mentioned here how he struck, and thereof the Justices doubted. But Jones said, That the Indictment is good for Battery at the Common Law. But all the other Justices were against him therein; for the Indictment concluding contra formam Statuti, It cannot be good as for an offence at the Common Law. But afterwards another Exception was taken by Grimstone, because the offence was alleged to be done in the Church of Shoreditch aforesaid, and Shoreditch was not named before: And upon view of the Indictment, it appearing to be so, all the Court held, that the Indictment was void: And for this cause the Defendant was discharged 
k Trir. 12 Car. B. R. Cholmley's Case. Cro. Rep. 3. . In the Ecclesiastical Laws of Ina King of the West- Saxons, cap. 6. Qui in Templo pugnaverit, 120 Solidis noxiam Sarcito. Ibid. Aliud. Exemp. cap. 6. Si quis in Ecclesia pugnet, centum viginti Sol. emendet, etc. [& alias 60. emendet pro vita.] Also among the Ecclesiastical Laws of Hoel Dha King of Wales, l. 10. De pugna quae in Coemiterio agitur, 14 Librae sunt reddendae. Likewise in l. 1. LL. Eccles. Edovardi Sen. R. Angliae, & Guthurni R. Danorum in East-anglia. Hoc primo Decreverunt, ut Ecclesiae pax intra suos parietes inviolate servetur. And in Cap. 2 & 3. LL. Eccl. Canuti Regis, valde rectum est, ut Ecclesiae pax intra parietes suos semper inconvulsa permaneat; quicunque eam perfregerit, de vita & omnibus in misericordia Regis sit. Et si quis pacem Ecclesiae Dei violabit, ut intra parietes ejus homicidium, hoc inemendabile sit, etc. nisi Rex ei vitam concedat.  
(7.) Where Prescription is alleged for Right to a Seat in a Church, or for Priority in that Seat, the Common Law hath took cognizance thereof, as in the case of Carleton against Hutton, where C. claimed the upper place in a Seat in the Church, and H. disturbed him in a violent manner; and the Bishop of the diocese sent an Inhibition to C. until the matter were determined before him. And by the Court a Prohibition was awarded; because it does not belong (as Reported) to the Spiritual Court: And as well the priority in the Seat as the Seat itself may be claimed by Prescription: and an Action upon the Case lies for it at Common Law, Ve. Litt. 121, 122. 
l Carleton verse. Hutton. Noy Rep. & Latch. Rep. . The Ordinary hath in him the right of distribution of the Seats in a Church, yet so as that prescription shall take place, whether it refers to the right of any particular Parishioner, or to the power of the churchwardens. The Case was, G. brought an Action of Trespass for the breaking of his Seat in the Church, and cutting of the Timber in small pieces, and carrying them away, etc. The Defendant pleads in Bar, That they were the churchwardens: and that the Plaintiff had erected that Seat without the licence of the Ordinary, and it was an hindrance to the Parishioners, etc. and that, they as churchwardens, the said Seat, etc. the which is the same Trespass. The Plaintiff demurs, and judgement for him: For admitting that the churchwardens may remove Seats in the Church at their pleasure, yet they cannot cut the Timber of the Pew. And thereupon they confessed the Trespass. Ve. 6 E. 4. 7. 9 E. 4. 14. 8 E. 4. 6. 18 E. 4. 8. 21 H. 7. 21. 12 H. 7. 27. 11 H. 4. 12. 
m Case W. Gilson vers. Wright & alios. Noy Rep. . Where there is a Parson Impropriate, he hath the best right to the chief Seat in the Chancel, as was Resolved in Sir William Hall's Case again Ellis, where E. Farmor of a Rectory Impropriate Libels in the Ecclesiastical Court pro Sedile in dextra parte Cancellae, and in his Additional Libel he Libels pro loco primo, and principally in dextra parte Cancellae. The Defendant there surmizes to have a Prohibition, Quod est antiqua Parochia & antiqua Cancella: and that he is seized of an Ancient message in that Parish, and that he and all those, etc. have used to sit in dextra parte Cancellae predict. to hear, etc. And it was Resolved by the Court, That of common Right, the Parson Impropriate, and per consequens his Farmor, aught to have the chief Seat in the Chancel; because he ought to repair it: But by Prescription another Parishioner may have it. But in this case a Consultation was awarded, with a quoad, etc. because the Libel and the Additional that now is all one, is pro primo Loco, etc. and the surmise is only pro Sedile in dextra parte, and not pro loco primo in it 
n Trin. 7 J●c. B. R. Sir W. Hall verse. ●llis. Noy Rep. .  
(8.) The Church in construction of Law, is Domus mansionalis Omnipotentis Dei, and therefore it is Burglary for a man to break and enter a Church in the night, of intent to steal, etc. 
o Co. Inst. par. 3. cap. 14. Brit. fo. 17. Dyer, 1 Mer. 99 22 Ed. 3. tit. Cor. 264. 22 Ass. p. 95. 26 Ass. 19 . And so sacred is the Church and Church-yard reputed in Law, That Ecclesiastical persons, whilst they are doing any Divine Service in either of them, or in any other place dedicated to God, may not be Arrested 
p 50 E. 3. 5. p. Arrests 1. Vid. St. 1 R. 2▪ c. 15 Dalt. Just. cap. 68 By the Ecclesiastical Laws of Ina, K. of the W. Saxons, cap. 5. Si quis rei Capitalis reus ad Templum confugerit, vita potitor. . Yea Anciently the Church and Church-yard was a Sanctuary, and the foundation of Abjuration; for whoever was not capable of this Sanctuary, could not have the benefit of Abjuration; and therefore he that committed sacrilege could not Abjure, because he could not take the privilege of Sanctuary 
q 8 E. 2. cor. 4●●. Si quis sit mortis reus, & ad Ecclesiam confugiat, vitam habeat, In alio Exemplari LL. Eccles. Inae, cap. 5. . This Abjuration was, when one having committed Felony, fled for safeguard of his life to the Sanctuary of a Church or Church-yard, and there before the Coroner of that place within 40 days confessed the Felony, and took an Oath for his perpetual Banishment out of the Realm into a Foreign (not Infidel) country, choosing rather Perdere patriam quam vitam 
r Cust. de Norm. cap. 24. & 8. Inter Leges Inae, cap. 5. & in't. Leg, 〈◊〉 fo. 105. ca 3. & Co. Inst. p. 3. cap. 51. . But this Abjuration founded upon the privilege of Sanctuary is wholly abrogated and taken away by an Act made 21 Jac. Reg. whereby it is Enacted, That no Sanctuary or privilege of Sanctuary should be admitted or allowed in any case 
s ●1 Jac. in the Continuance of Statutes. etc. Co ubi supr. . And here Note, That this kind of Abjuration hath no relation to that of Recusants by force of the Stat. of 35 Eliz. cap. 1. because such Abjuration hath no dependency upon any Sanctuary 
t Co. ibid. Ubi vid. plene de Abjur. & Sanct. . But as to the other Abjuration in relation to Felonies, sacrilege excepted, (no Abjuration or Sanctuary being allowed in cases of Treason or Petit Treason) the Law was so favourable for the preservation of Sanctuary in the Church or Church-yard, That if a Prisoner for Felony had before his attainder or conviction escaped and taken Sanctuary, and being pursued by his Keepers or others were brought back again to the Prison, he might upon his Arraignment have pleaded the same, and should have been restored again to the Sanctuary of the Church or Church-yard 
u Lib. Int. 532. b. Sanct. 2. Hill. 43 E. 3. Rot. 115. Back. W. Atwell's Case. Co. Inst. p. 3. cap. 101. .  
(9) The defacing of Tombs, sepulchers, or Monuments erected in any Church, Chancel, Common chapel, or churchyard, is (it seems) punishable by the Common Law; and for which the Erectors or Builders thereof during their lives, and after their decease their Heirs, shall have the Action 
w 9 E. 4. 14. the Lady Wiches' Case. & Mich. 10 Jac. C. B. Corven vers. Pym. Co. Inst. par. 3. cap. 97. . But the Erecting thereof ought not to be to the hindrance of Divine Service. And albeit the Freehold of the Church is in the Parson, yet if the Lord of a manor, or any other that hath an House within the Town or Parish, and he and all those whose Estate he hath in the Mansion-house of the manor, or other House, hath had a Seat in an Isle of the Church for him and his Family only, and have repaired it at his own proper charges, 
Actio datur, si quis Arma in aliquo loco posita delev●t seu abrasit, etc. Cassanae council 29.  it shall be intended that some of his Ancestors, or of the parties whose Estate he hath, did build and erect that Isle for him and his Family only; and therefore if the Ordinary endeavour to remove him, or place any other there, a Prohibition (as was resolved in Corven's Case) will lie 
x Mich. 10 Jac. C. B. dict. Cas. inter Corven & Pym. . It hath also been further Resolved, That if any man hath a House in a Town or Parish, and that he and those whose Estate he hath in the House, hath had time out of mind a certain Pew or Seat in the Church, maintained by him and them, the Ordinary may not remove him (for Prescription, according to Sir Ed. Coke, maketh Certainty, the Mother of Quietness) otherwise a Prohibition will also lie in the case 
y 8 H. 7. 12. a. per Hussy accord. Pasch. 10 Jac. Cam. Stell. in't. Hussy and Layton. Resol. per le Court. Co. Inst. par. 3. cap. 97. . But where there is no Prescription, there the Ordinary for avoiding of contention in the Church, may place the Parishioners in the Church or public chapel according to their qualities and degrees 
z 8 H. 7. 12. a. acc. 12 H. 7. 12. per Hussy. Co. ubi supr. . And until the Bishop hath consecrated or dedicated Churches or public chapels new erected, the Law doth not take knowledge of them qua tales; for which reason it is, That a Church or not a Church; a chapel or not a chapel; is Tried and Certified by the Bishop 
a 8 H. 6. 32, 37. .  
(10.) Touching the Reparation of Churches, the cognizance thereof appertains to the Ecclesiastical Court, as was Agreed by the Court in Buck's Case against Amcotts, where in a Prohibition the Defendant said, That in Hornechurch in Essex are chapels of Ease, viz. Rumford and Haveringe chapels, and that they of Haveringe have used time out of mind, etc. to contribute to the Reparation of Rumford: and that in the time of H. 4. virtute Literar. patent. & concurrentibus iis, etc. And Rumford was pulled down, and erected in a more convenient place within this precinct and circuit, viz. twenty eight foot longer and fourteen foot broader. Noy, That it does not lie. (1) Virtute Literàr. patent. in general is not good. But the Patent ought to have been shown in haec verba, or produced in Court; by which the Court might judge: For a new Church cannot be erected without Letters Patents, because it is a Sanctuary, Ve. 5 E. 3. 26. 1 H. 7. 25. & 22 E. 4. the Lord Lisle's Case. (2.) The Prescription is gone, by the erecting in another place, and longer, etc. as aforesaid, ve. 4. Rep. P. 6. And that shall be taken strict, Perkins 761. 7 E. 4. 27. 10 E. 3. 23. But the Court was on the contrary, because it is pro bono Publico, and in such a case a Pleader, by Concurrentibus iis, is good. As in an Union, 11 H. 7. 8. And that the Cognizance for Reparation of the Church; appertains to the Spiritual Court; and is not like the Case of a Tenure, 4 Rep. 86. because the Tenant by that is put to a greater charge, and no profit or benefit accrues to the Tenant, as it does to the Parishioner. And Easter Term ensuing, a Consultation was granted by the Court 
b Hill. 5 Jac. B. R. Buck against Amco●ts. Noy Rep. . He that hath the Impropriation of a Rectory or Parsonage, aught to repair the Chancel, and so he ought to contribute to the reparation of the Church, if he hath any Land in that Village. Mich. 18 Jac. B. R. sergeant Davies Case. Roll. Rep. par. 2.  
(11.) The churchwardens of Denford, an Ancient Church in the County of Northampton, sue the Inhabitants of Kingstead in the same Parish, where there was a chapel of Ease, for contribution to repair the Church of Denford. And they pray a Prohibition upon suggestion, That time out of mind, etc. they have used to Repair their own chapel, and only a part of the Wall of the churchyard of the said Church of Denford. And it seemed by the better opinion of the Court, that it was not good. For their Ease shall not be a disease to the rest of the Parishioners. For Popham said, That the Assent is not requisite to build a chapel of Ease, and then the Ordinary and the Parson cannot charge the Parishioners with greater charge. By Yeluerton, That the Parson ought to repair the Wall of the churchyard. But by Fenner, The Parishioners in the Spiritual Court shall be compelled to do it, although that the franktenement be in the Parson. Yelvert. objected, and by Kemp secondary, That the parishioners of repair the Wall of the churchyard. Yet now it was ordered, that a Prohibition shall be granted, and the defendants if they please may demur upon it. Note also B. 5 Jac. B. R. a Derbyshire-Case, where a Prohibition in such case was denied 
c Pasch. 4 Eliz. The churchwardens of ●enford's Case. Noy Rep. .  
(12.) Two churchwardens sue S. for Reparation of the Church according to the Tax assessest. S. pleads he always offered to pay. By which the Sentence in the Ecclesiastical Court passed against them. Then they Appeal, and Sentence is repealed, and 15 l. Costs given to them, and they sue for that 15 l. in the Ecclesiastical Court. S. pleads a Release of one of the churchwardens. And in a Prohibition it seemed to the three Justices, That that Release is a Bar against the other, and that if it be disollowed in the Spiritual Court; by the Court it was said a Prohibition shall lie. 7 Jac. B. R. rot. 852. A Consultation in such case was granted, for the churchwardens in such a case are a Corporation for the benefit, but not for the prejudice of the Parish. 13 H. 7. 9 11 H. 4. 12. And they shall recover the Costs to the use of the Church, and the Release shall be well enough determined there, where the Suit was commenced 
d Gore verse. Stark. Noy Rep. .  
(13.) In Heal's Case against the churchwardens of Hobleton, it was agreed by the Court, That for a Tax assessest for the Reparation of a Church a Rate made perpetuis duratura temporibus, it is not good to bind the Inheritance; but yet it is good by way of direction, how and how much shall be levied as need requires 
e Case Heal's ver. Churchwardens of Hobleton. Noy Rep. . And in Chamber's Case a Prohibition was awarded to the Court of the Bishop of Oxford; for that, that Chambers was sued there for a perpetual charge imposed upon his Land, for the Reparation of the Church. For by the Court, an Inherritance cannot be charged with that 
f Chamber's Case. Noy Rep. .  
In another Case one that was sued in the Ecclesiastical Court for Rates to reparation of the Church, alleged that they had overvalued his Land, Rating them at the value of 100 l. per. annum, they being worth but 60 l. (2) He alleged a custom in the Parish, that they ought to be rated not according to the value of their Farms and Houses, but only according to the value of their Sheep-walks, and on that matter he prayed a Prohibition. As to the first, all the Court (except Whitlock) Resolved, that it is not material, because the Rates ought to follow the value of the Land, and for that the valuing of the Land properly belongs to them. As to the second, Noy moved, That although the Principal be a thing Spiritual, yet it is now mixed with a custom, as in the Case de modo Decimandi the Ecclesiastical Court is ousted of his Jurisdiction. Houghton Justice, It seems so as to other things; but the Church being the House of God, 
Mich. 22 Jac. B. R. Holland vers. Kirton. Rol. Rep.  is more to be regarded, and a custom in prejudice to the Reparations of the Church, is void; for of common Right the House and all Lands are chargeable to the Reparations. And the Court commanded him to make a Suggestion of the custom, omitting the value, and then they would consider, whether a Prohibition should go or no.  
In Stephenson's Case it was Resolved, that if one hath Lands in one Town, 
Cro. par. 1.  and doth inhabit in another; he shall be compelled to be contributory to the Reparation of the Parish Church where the Lands are.  
(14.) Note, by Coke Chief Justice, That the keeping of a Church-Book for the Age of those which should be Born and christened in the Parish, began in the Thirtieth year of Henry the Eighth, by the instigation of the Lord Cromwell 
g Tyrwhite verse. Kynastan. Vid. Noy Rep. post dict. Cas. .  
(15.) Chappel, Capella, of the French [Chapelleé, that is, aedicula]. Of this there seems to be three sorts; the one such as adjoins to the Church, as parcel of the same, built by Persons of Honour, ut ibidem Familiaria Sepulchra sibi constituant; Another, that which is separate from the Mother-Church in a Parish of a large extent, built for the better ease and convenience of such Parishioners whose habitations are remote and far distant from the Parish-Church, and thence vulgarly called a chapel of Ease, being served by some inferior Curate at the charge either of the Rector, or of such as for whose convenience it is, according to the custom or composition. A chapel of Ease is where there is a Parochial Church in the same Parish, wherein the Sacraments are administered, and not in the chapel. 8 H. 6. 32. which appertains to the Parochial Church, and the Parson thereof. Ibid. And a Parochial Church cannot be a chapel. 8 H. 6. 37. The Third is that which is called a Free-Chappel, which in point of Maintenance and endowment, as also in respect of exemption from the Ordinaries Jurisdiction, seems to differ from both the former, 
If the King grant a Free chapel to one, he ought to be put into possession by the Sheriff, 14 H. 4. 11. b. and Rol. Abridg. ver. Presentment, lit. B. pag. 356.  and hath perpetual maintenance towards the upholding thereof, by a charitable Endowment thereof, without the charge of the Rector or Parish 
h 37 H. 8. c. 4. 1 Ed. 6. c. 14. . So that a Free-Chappel or Libera Capella is, according to the opinion of some, no other than a chapel founded within some Parochial precincts for Divine Service, by the bounty of some well disposed person (over and above the Mother-Church) to which it was at the Parishioners choice or liberty (for whose convenience it was erected) to repair or not, and endowed with Maintenance by the Founder, and therefore called Freevill Notwithstanding which others are of opinion, and that more probable, That these only are Free chapels, which are of the Foundation of Kings, and by them exempted from the Jurisdiction of the Ordinary; but the King may also licence a Subject to Found such a chapel, and by his Charter exempt it from the Visitation of the Ordinary; in respect of which exemption, and from the Jurisdiction of the Diocesan, it appears by the Register of Writs to be called Free 
i Regist. of Writs, fo. 40, 41. . H. 8 E. 3. B. R. Rot. 97. Episcopus Exon attachiat. ad respondendum Domino Regi quare exerceret Jurisdictionem in Capella Regia Sanctae Burianae in Cornub, & c 
k Ibidem & T. 17 E. 1. Rot. 97. B. R.  The King himself Visits his Free chapels and Hospitals, and not the Ordinary 
l Dav● 1. Proxies 4. 27 E. 3. 85. F. N. B. 42. . The Lord Chancellor executes it for the King. These chapels were all of them, together with Chantries given to the King 
m 1 Ed. 6. c. 14. : Of this kind is the Free chapel of St. Martin le Grand 
n 3 Ed. 4. c. 4. . The Canonists are not agreed touching the derivation of this word; some take it (à capiendo Laicos,) others (à Capra,) because they conceive that they resemble those Cottages which were wont to be covered over with goatskins. Others (à cappa Divi Martini). Others (è Chapellee, Gallic.) 
o Rebuff. de pacif. possess. nu. 104. Pet. Greg. Synt. lib. 15. c. 29. Jo. Andraeas de Benef. c. 11. nu. 10. .  
(16.) In the Parish of Aston (in the County of Warwick) which hath a Parish Church, is a certain chapel of Ease, called Castle-Birmidge chapel, and a certain Precinct called Castle-Birmidge, the Inhabitants thereof resort to the said chapel, and there Marry, Christian, and receive the Sacraments; there are also churchwardens, and the Inhabitants have a Perambulation there of itself; notwithstanding all which, when it came in debate, whether the Parishioners of the chapel (the Parish-Church of Aston being in decay) might be Taxed towards the Reparation thereof, they obtained a Prohibition on a surmise, which not appearing to be true, a Consultation was awarded; yet in that case it was held, That if two Churches Parochial be united, the Reparation shall be several as before. And that a chapel of Ease is part of the Parish, & de communi jure liable to reparations of the Parish Church; that such as have a chapel of Ease may resort to the Parish Church, if they so please; and that the Parson of the Parish-Church may Officiate at the chapel of Ease, if he will 
p Case Aston Parish verse, Birmidge Chappel. Hob. Rep. .  
(17.) The Emperor Justinian in the fifth Collation of his Novel Constitutions, commonly called the authentics, emitted by him after the Digest and the Code, hath Ordained, That no man build a chapel in his House without the leave of the Bishop, and before he consecrate the place by Prayer, and set up the Cross there, and make procession in the place; and that before he build it, he allot out Lands necessary for the maintenance of the same, and those that shall attend on God's Service in the place. In which Collation there is also that which seems to bear some conformity with the Acts of Uniformity, established in this Realm against Seditious Conventicles; For in that Collation it is likewise Ordained by the said Emperor, That the sacred Mysteries or Ministeries be not done in private Houses, but be celebrated in public places, lest thereby things be done contrary to the Catholic and Apostolic Faith, unless they call to the celebrating of the same such Clerks of whose Faith and Conformity there is no doubt made, or those who are thereunto deputed by the Bishop. But chapels and places to pray in every man may have in his own House; if any thing be done to the contrary, the House wherein these things are done, shall be confiscate, and themselves punished at the discretion of the Prince 
q Auth. Coll. 5. Vid. Ridl. View, cap. 3. Sect. 6. par. 1. .  
(18. A. the Father had all his life the chief place in a certain Seat in the Church, and H. his Son likewise claimed the same, and C. disturbed him in a violent manner; the Archbishop of York, in whose Jurisdiction this was, granted an Inhibition against C, till the matter were determined before him, and Excommunicated him for Disobedience. C. claimed the place by Prescription, and for that Reason prayed a Prohibition: And it was said, That the Excommunication was only for his Contempt: And it is lawful for the Bishop to grant such an Inhibition for the peace of the Church. And Doderidge agreed, That if the Bishop did Inhibit any from making a disturbance in the Church, it was good; and therefore would not grant a Prohibition for well-doing. Crew & Jones, etc. but here he had not done well. Doderidge è contra. Then it was said, That here the Bishop had Inhibited till the matter were determined before himself. And the whole Court agreed, That a Seat in a Church claimed by Prescription, and the priority therein likewise claimed by Prescription, is Triable in this Court by an Action upon the Case, and not in the Spiritual Court. And at last it was agreed by the parties, that H. should remain in possession till the matter were tried by Prohibition. And a Prohibition was awarded in the Case 
r Hutton's Case. Latch. Rep. . Note, That a Prohibition may not be granted after a Consultation 
s gaze Bowry vers. Wallington. Latch. Rep. . And as it seems, by the course of proceed in the Court of the King's Bench, a Prohibition shall not be granted the last day of a Term, and such a Motion ought not then to be made; but upon a motion there may be a Rule to stay proceed till the next Term 
t Anonymus. dict. Rep. Latch. .  
(19) It was moved in the King's Bench for a Prohibition to the Ecclesiastical Court at Worcester, and shown for cause (1) That the Suit there was for Money, which by the assent of the greater part of the Parishioners of D. was Assessed upon the Plaintiff for the Reparation, viz. for the Re-casting of their Bells; The truth is, That the charge was for the making of new Bells, where there were Four before, whereby it appears that it is merely matter of curiosity, and not of necessity, for which the Parishioners shall not be liable to such Taxations, and herein it was relied upon 44 E. 3. 19 by Finchden. (2) The party there is overcharged, of which the Common Law shall judge. (3) The party hath alleged, that he and all those who have an Estate in such a Tenement, have used to pay but Eleven shillings for any Reparation of the Church. But the Prohibition was denied; and by Doderidge in the Book of 44 E. 3. there was a By-law in the Case to distrain, which is a thing merely Temporal, for which the Prohibition was granted & per Curiam; in this case the Assessment by the major part of the Parishioners binds the party, albeit he assented not to it: And the Court seemed to be of opinion, That the custom was not reasonable, because it laid a burden upon the rest of the Parish. Littleton of Counsel of the other side, Suppose the Church falls, shall he pay but Eleven shillings? Whitlock, If the Church falls, the Parishioners are not bound to build it up again, which was not denied by Justice Jones 
u Mic●. 2 Car. Poph. Rep. .  
(20.) Roberts and others of East-Greenwich were cited in the Ecclesiastical Court to pay money that the churchwardens had expended in Reparation of the Church; 
Reparations.  and the Inhabitants alleged, That the Tax was made by the churchwardens themselves, without calling the Freeholders, and also that the Moneys were expending in the Re-edifying Seats of the Churches, which belonged to their several houses: And they never assented, that they should be pulled down. And now the Allegation was not allowed in the Ecclesiastical Court, but Sentence was given against them. And then they Appealed to the Arches, where this Allegation was also rejected; and for that he prayed a Prohibition: And the Court agreed, That the Tax cannot be made by the churchwardens, but by the greater number of the Inhabitants it may, and a Prohibition was granted. But by Yeluerton, if they be cited by Ex Officio, a Prohibition will not lie; for so it was Ex insinuatione, etc. For the Wardens came and prayed a Citation, etc. But by Richardson, Harvey, and Crook privately, a Prohibition will lie in both Cases 
x The Case of Roberts and others in Hetley's Rep. .  
(21. E. Libels in the Ecclesiastical Court against A. pretending, that a Seat, that the other claimed always in the Church, belonged to his House, 
Seats in a Church.  and Sentence in that Court was given against E. and Costs pro falso clamore. And he Appealed to the Arches, and there when they were ready to affirm the Sentence, he prayed a Prohibition. And it was moved by Davenport, that it might be granted; and he cited one Tresham's Case 33 Eliz. where in such a case a Prohibition was granted after an Appeal. Richardson, There is no cause for any Prohibition, but in respect of the costs. Hutton said it was a double vexation, and the party shall not have Costs for that. Hitcham said, they came too late to have a Prohibition for the Costs. Richardson, That is not like to the Probat of a Will, where a thing may fall out Triable at the Common Law. But there the Principal was tried at the Common Law; for they had it as in right. Hutton, Seats in the generality are in the power of the Ordinary to dispose; It is the Prescription which makes that triable at the Common Law; and if Prescription be made there, and it be found, than he shall pay Costs. Richardson, All Disturbances appertain also to them: if it be not upon the Statute of 5 Ed. 6. But if a Title be made there by Prescription, it is merely coram non Judice; and if they cannot meddle with the Principal, it is not reason that they should tax Costs. And a Prohibition was granted 
y Eton against Ay●●ff●. Hetley 's Rep. .  
(22. H. Farmer of a manor; A. and other churchwardens Libel against him in the Ecclesiastical Court for a Tax for the reparation of the Church. 
Reparation of the Church.  Henden moved for a Prohibition because that first the Libel was upon a custom, That the Lands should be charged for Reparations, which customs ought to be tried at the Common Law. And secondly, Because the custom of that place is, that Houses and Arable Lands should only be taxed for the Reparations of the Church, and Meadow and Pasture should be charged with other Taxes. But the whole Court on the contrary: First, although that a Libel is by a custom, yet the other Lands shall be dischargeable by the Common Law; but the usage is to allege a custom; and also that Houses are chargeable to the Reparations of the Church, as well as landlord. And thirdly, that a custom to discharge some Lands is not good. Wherefore a Prohibition was granted 
z Hill. 4 Car. C. B. Andrews verse. Hutton. Hetley's Rep. .  
Note, that where a man sued in the Ecclesiastical Court, prescribing to have a Seat in a Church ratione Messuagii where he inhabited; upon the motion of sergeant Henden, a Prohibition was granted, for it is a Temporal thing 
a Noy's Rep. post Cas. ●ore verse. Stark. .  
Note, By Coke Chief Justice, That the keeping of a Church-Book for the age of those, which should be born and christened in the Parish, began in the 30th. year of Henry the Eighth: by the instigation of the Lord Cromwell 
b Post Case Tyrwhite verse. Kynaston. Nay's Rep. .  
A man was indicted upon the Statute of Ed. 6. That in the churchyard, 
Striking in the churchyard.  such a day, extraxit gladium against J. L. & ipsum percussit; and because the Statute was, If any person maliciously strike another, or shall draw any Weapon with an intent to strike any person: And the Indictment was quod extraxit, but does not say ad percutiendum: And because it is quod percussit without saying malitiose, the party was discharged upon judgement 
c Hart versus Arrowsmith. Post dict. Cas. Noy 's Rep. .  
If there be a Parson Appropriate of a Church, 
Trees in the churchyard.  and also a Vicar endowed of the same Church, the Trees in the churchyard do there belong to the Vicar, and not to the Parson; for that there the Vicar ought to repair the Church, and he shall have the Trees which ought to repair the Church. Dubitatur. Mich. 13 Jac. B. R. Bellamie's Case 
d Rol. Abr. verb. Parson, nu. 3. .  
The Lord Coke said, That for the Body of the Church, the Ordinary is to place and displace; in the Chancel the Freehold is in the Parson, 
Seats in the Church. Brownl. Rep. pa. 1. Cases in Law, etc.  and it is parcel of his Glebe; Trespass will lie by the Heir for pulling down the Coat-Armor, etc. of his Ancestors, set up in the Church. A Pew cannot belong to a House.  
(23.) An Inhabitant of the Parish of D. hath Land in his occupation in the Parish of S. 
Reparations of the Church.  The churchwardens of S. and other the Parishioners there make a Tax for the Reparation of the Church, for Ornaments of the Church, and for the Sexton's wages, amounting to the sum of 23 l. and the Tax of the Church being deducted, cometh but to 3 l. only. The Foreigner which dwells in D. is sued in the Ecclesiastical Court by the Churchwardens of S. for his part of the said Tax; and he prays a Prohibition. Henden said, he well agreed the Case of Jefferies, 5 Coke, that he should be charged, if this Tax had been for the Reparation of the Church only; for this is in nature Real. But when that is joined with other things, which are in nature personal, as Ornaments of the Church, or Sexton's wages, with which, as it seems, he is not chargeable, than Prohibition lies for all. Fleming Chief Justice, and Williams Justice, thought fit that he should not have a Prohibition: for as well the Reparations of the Church, as the Ornaments thereof, are merely Spiritual, with which this Court hath nothing to do; and Fleming said, That such Tax is not any charge issuing out of the Land, as a Rent, but every person is taxed according to the value of the Land: But Yeluerton and Fenner to the contrary, that a Prohibition doth lie, for the same diversity which had been conceived at the Bar; and also they said, That he which dwells in another Parish, doth not intent to have benefit by the Ornaments of the Church, 
Reparations of Church-Seats.  or for the Sexton's wages: And for that it was agreed by all, by the Chief Justice, Williams, and the others, That if Tax be made for the Reparation of Seats of the Church, that a Foreigner shall not be taxed for that, because he hath no benefit by them in particular; and the Court would advise 
e Pas●h. 8 Jac. B. R. Wagginer and wood Brownl. Rep. pa. 2. . In Penner and Crompton's Case, it was held, That none shall be chargeable for contribution to church-reckoning if he do not inhabit there, or consent to them. More's Rep.  
(24.) Note, upon a motion for a Prohibition; That if a Parson contract with me by word, 
Mich. 8 Jac. B. R. Brownl. ubi supra.  for keeping back my own Tithes for three or four years; This is a good Bargain by way of Retainer: and if he sue me in the Ecclesiastical Court for my Tithes, I shall have a Prohibition upon this composition. But if he grant to me the Tithes of another, though it be but for a year; This is not good, unless it be by Deed.  
(25.) The disposal of Seats in the Body of the Church doth belong of common right to the Ordinary of the diocese, 
S●ats in the Church.  so as he may place and displace at his pleasure. If a man and his Ancestors, and all those whose Estate he hath in a certain message, have used time out of mind, etc. to repair an Isle of the Church, and to sit there, and none other: the Ordinary may not displace him; for if so, than a Prohibition lies, for that he hath it by prescription upon reasonable consideration 
f Mich. 11 Jac. B. R. per Cur. & Mich. 10 Jac. B. nym's Case, per Cur. Hob. Rep. 95. & More Rep. : Likewise if a man prescribe, That he and his Ancestors, and all those whose Estates he hath in a certain message, have used to sit in a certain Pew in the body of the Church time out of mind, etc. in consideration that he, etc. have used time out of mind to repair the said Seat. If the Ordinary remove him from that Seat, a Prohibition lies, for in this case the Ordinary hath not any power to dispose thereof; for that is a good prescription, and by intendment there may be a good consideration for the commencement of that prescription, although the place where the Seat is be the Parson's Freehold. In this case a Prohibition was granted to the Bishop of Exeter for one Cross 
g Tr. 12 Jac, B Cross' Case Resolved per Cu●. & M. 13 Jac. B. L●ugh and Hussey. Resol. & M. 13 Jac. B. Boothby and Day. Hob. Rep. 95. Rol. Abr. pag. 288. . But if a man prescribe to have a Seat in the Body of the Church, generally, without the said consideration of repairing the Seat, the Ordinary may displace him 
h M. 11 J●c. B. R. per Cur. & dict. Case Boothby. Hob. 93. . But with the Seats in the chapels annexed to noblemens' Houses, it is said the Ordinary hath nothing to do 
i Tr. 12 Jac. B. Agreed. Rol Abr. so. 288. . If there be a custom in a Parish, that 12 of the Parishioners may choose the Churchwardens, which Churchwardens have power by the custom to repair the old Seats, and erect new in the Body of the Church, and to appoint who shall sit in them; And the Churchwardens so elect, erect a New Seat in the Body of the Church, and appoint a certain person to sit there; and after the Ordinary decree, That another shall have the Seat: In this case it is said a Prohibition lies, for the custom hath fixed the power of disposing the Seats in this case in the Churchwardens, and a Prohibition was granted: But it was also partly granted, for that the Sentence of the Ordinary was, That T. should have the Seat to him and his Heirs, and that none should disturb him on pain of Excommunication, which is unreasonable; and by that Sentence he and his Heirs shall have it, although they do not Inhabitants within the Parish 
k Pasch. 16 Jac. B. R. inter Bra●in and Tredennick for a Seat in the Church of St. Breock in Cornwall. Vid. Rol. Abr. verb. Prohibition pag 288. .  
(26.) The Ecclesiastical Court hath cognizance of the Reparations of the Body of the Chuech 
l Co. 5. Jeffrey 's Case 67. Resolved. Reparations of the Church. . If a man that dwells in one Parish, hath Land in another, the which he keeps in his own hands and occupation, he shall be charged for that Land for the Reparation of the Church of that Parish where the Land lies, for that he may come when he will, and it is a charge in respect of the Land 
m Co. ibid. & Tr. 11 Jac. B. Andrews Case, per Cur. Contra M. 40, 41. El. B. R. per Cur. . But if an Inhabitant in one Parish, lease out his Land which he hath in another Parish, reserving rend, he shall not be charged where the Land lies, in respect of the Rent, because there is a Parishioner and an Inhabitant that may be charged 
n Co. ibid. Jeffrey's Case. Resol. M. 5 Jac. B. . And a man cannot be charged in the Parish where he doth inhabit, for Land which he hath in another Parish, to the Reparation of the Church, for that he may then be twice charged, for he may be charged for that in the Parish where the Land doth lie 
o Pasch. 16 Jac. B. R. Sr. H. Bu●ler vers. etc. Resol. Co. 5. Jeffreys 67. ; in which case Prohibition hath been granted.  
(27.) If a Citizen of London erect a House in the Parish of A. with intent of dwelling there in time of Sickness at London, and hath not any Land in the Parish, and after is Assessed 20 s. for Reparation of the Church, where others who have 100 acres of Land in the same Parish, pay but 6 d. yet no Prohibition shall be granted on a Suit for the said 20 s. in the Ecclesiastical Court, for that they have Jurisdiction of the thing, and for which reason they may order it according to their Law 
p M. 5 Jac. B. Sr. Ro. Lee's Case. per Cur. .  
(28.) If there be a chapel of Ease within a Parish, and any persons of the Parish have used time out of mind, etc. alone and by themselves without others of the Parishioners to repair that chapel of Ease, and there to hear Divine Service, and to Marry, and all other things, only they Bury at the Mother-Church; yet they shall not be discharged of Reparations of the Mother-Church, but aught to contribute to the same, for the chapel was Ordained only for their ease 
q M. 13 Jac. B. the Case of the churchwardens of Ashton, and the Inhabitants of castle Bromage. Hob. Rep. 91. . But if Inhabitants within a Chappelry prescribe to be discharged time out of mind, etc. of the Reparation of the Mother-Church, and are sued in the Ecclesiastical Court for the same, a Prohibition lies on that surmise 
r Hob. Rep. 92. .  
(29.) If a man be rated for the Ornaments of the Church according to the Land which he hath in the Parish, 
Ornaments of the Church.  a Prohibition lies, for the Rate for that aught to be according to the personal Estate 
s Mich. 20 Jac. B. R. . Also if a man who is not any Inhabitant within the Parish, but hath Land there, be rated for the Ornaments of the Church according to the Land, a Prohibition lies, for the Inhabitants ought to be rated for that 
t Ibid. Resol. per Cur. ; and it was said by Yeluerton, That it had been often so Resolved.  
(30.) If all the Parishioners are not rated for the Reparation of the Church, but some are and some are not, and those that are rated be sued in the Ecclesiastical Court, a Prohibition will lie 
u Mich. 11 Car. B. R. per Cur. . But if the major part of the Parishioners of a Parish, where there are four Bells, doth agree that there shall be a fifth Bell made, and it be made accordingly, and a Rate made for payment of the same; it shall bind the lesser part of the Parishioners although they did not agree to it, for otherwise any obstinate persons may hinder any thing intended to be done for the Ornament of the Church; and therefore in this case a Prohibition was denied 
x Mich. 2 Car. B. R. per Cur. .  
(31.) The Ecclesiastical Court may not try the Bounds of a Parish; if therefore there be a Suit there depending for that, a Prohibition will lie; as where the difference is between two Vicars concerning a chapel of Ease; As when the Vicar of a Parish Libels against another to avoid his Institution to the Church of D. which he supposes to be a chapel of Ease belonging to his Vicarage: if the Defendant suggest, that D. is a Parish of itself, and not a chapel of Ease, a Prohibition lies, for they may not try the Bounds of a Parish 
y Mich. 14 Jac. B. R. Fisher and chamberlain, Resol. & Hil. 41 Eliz. B. R. Piper and Barnaby, adjudged. & Hill. 13 Jac. B. R. Foster and hid, adjudged. .  
(32.) If a Vicar sue the Parson Impropriate for damages for cutting down the Trees growing in the churchyard, a Prohibition lies; for that if the Trees belong to him, he may have Trespass at Common Law; And in this case a Prohibition was granted 
z Mich 12 Jac. B. R. Bellamy's Case, resolved. .  
(33.) One being sued in the Ecclesiastical Court for money for reparation of the Church, prayed a Prohibition and had it, and after it was moved for a Consultation. The case was this, viz. The party that was sued, prescribed that there is a chapel within the same Village, in which they have had at all times Sacramenta & Sacramentalia, and that he nor the Inhabitants of that Village which resort to the said chapel, have ever used to repair the said Church; the first point in this case was, whether the Prescription were good; and the Chief Justice said, that it is contrary to Common right, that they who have a chapel of Ease in a Village should be discharged of repairing the Mother-Church; 
Hill. 19 Jac. B. R. Rot. 922. Peter verse. Rose edmond's Wid. Roll. Rep.  and it may be that the Church being built with Stone, it may not need any Reparation within the memory of man, and yet that doth not discharge them without some special cause of discharge showed. The second point was the taking away of an Objection, as they said, viz. That a Prescription which is incident to Ecclesiastical things, shall be tried in the Ecclesiastical Court, and so that Objection removed, and commonly the churchwardens are chosen in the Ecclesiastical Court, yet the Lord of a manor may prescribe for that, and then it shall not be tried in the Ecclesiastical Court, although it be a Prescription of what appertains to a Spiritual thing.  
(34.) Note, that in the case of Churchwardens, the Chief Justice said, That for the repairing the fabric of the Church the charge is real, 
Hill. 20 Jac. B. R. churchwardens Case. Roll '. Rep.  & charges the Land and not the person; but for the Ornaments of the Church it is personal, and there if a man be not an Inhabitant within the Parish, he is not chargeable in respect of his Land, for such Tax doth charge the Goods only. And to this Chamberlain Justice agreed, and none denied it; but where there is a Farmor of the Land, there the Farmor alone shall not be charged, for it is not reason that a poor Husbandman, who pays rend for his Land, and perhaps to the utmost value, should build Churches; but it may be unknown to the Parishioner and the Churchwardens who hath the Fee in reversion, and therefore they may impose the whole Tax on the Farmor, and he by way of Answer may allege in the Ecclesiastical Court that he is but the Farmor, and thereupon the Tax shall be divided between him and his Landlord, according to the Rate which the Land is worth more than the Rent, and on the Landlord according to the quantity of the Rent; quod quaere, for in Jeofferie's Case 5 Coke it is Resolved, That the Farmor alone is chargeable, and that a Consultation was granted, but not for that reason, but for that the Reversioner had pleaded an insufficient plea in the Ecclesiastical Court, viz. That he was not an Inhabitant within the Parish, which is not a good plea, as also for the great delay which he had used, having made or brought two Appeals, and after a Prohibition, and so had put the Parish to 60 l. charge for the recovery of 6 l. and for that reason chief, and not on the matter in Law was the Consultation granted.  
(33.) In Frances and Ley's Case, 
Cro. par. 2.  it was Resolved by the Justices, That Coats of Arms placed in Windows, or a Monument placed in the Church or Church-yard, cannot be beaten down and defaced by the Parson, Ordinary, Churchwardens, or any other: And if they be, the Heir by descent interessed in the Coat, etc. may have an Action of Trespass.  
(36. 
Mich. 18 Jac. B. R. Dawney and Dee's Case. Cro. par. 2. ) In an Action upon the Case, D. shown he was seized of a message and Land in P. to the same belonging, and in the Parish of P. time whereof, etc. and yet is a chapel in the North part of the Chancel, called the Parson's Chancel, and the Plaintiff and all those, etc. have used to sustain and repair the said Chancel, and have used for him and his Family to sit in Seats of the said Chancel, and to Bury there the persons dying in the said message, 
Seats in a chapel.  and that none other during all the said time, etc. without their licence, have used to sit there, or to be buried there, and that the Defendants Praemissorum non ignari, malitiose impediverunt him to enter, and sit in the said Seats. The Defendant said, That the Earl of N. was seized of the Honour of F. and the said chapel was parcel of the said Honour, and that the Defendants being Servants of the said Earl, and resident within the said Honour, did divers times in the time of Divine Service sit in the Seats of the said Chancel, by the command of the said Earl; upon which it was Demurred: Exceptions were taken to the Declaration, because he prescribes to have a Liberty appertaining to his House, and doth not show it is an Ancient House. And (2) That the Allegation of the disturbance was ill, being general, without alleding a special Disturbance, and how he was disturbed. Resolved, That when it is supposed he is seized in Fee of a Capital message, and time, etc. it is there included, that it is an ancient message, and so might have such a privilege; And for the second, it is sufficient to allege a general Disturbance, as is usual in the Case of a Fair or Market.  
(37. 
Pasch. 33 Eliz. B. R. Dethick's Case. Cro. par. 1. ) D. was Indicted upon the Statute of 5 E. 6. for striking in Paul's churchyard; he pleaded that he was by the Queen's Letters Patents created Garter King of Arms, and demanded judgement because he was not so named: It was the opinion of the Court, 
Striking in the churchyard.  that because it was a parcel of his Dignity and not of his Office only, and because the Patent is, Creamus, coronamus, & nomen imponimus de Garter Rex heraldorum, that therefore in all Suits brought against him, he ought to be named by this name; and thereupon he was discharged of the Indictment. 
Penhall●'s Case. Cro. ibid.  And in Penhallo's Case, who was Indicted upon the same Statute, for drawing of Dagger in the Church of B. against J. S. and doth not say, with intent to strike him; for which cause the judgement was quashed. Likewise in Child's Case, 
Child's Case. Cro. ibid.  who was Indicted for striking in the churchyard; and it was apud generalem Sessionem Pacis tent. apud Blandford, and it was not said [in Comitatu praedicto] for which reason the party was discharged, though the County was in the Margin.  
(38.) In Pym's Case beforementioned; Corven did Libel in the Ecclesiastical Court against Pym for a Seat in a Church in Devonshire; 
Corven's Case. Co. lib. 10.  And Pym, by sergeant Hutton, moved for a Prohibition upon this Reason, 
Right to Seat● in the Church.  That himself is seized of a House in the said Parish; and that he and all whose Estate he hath in the House, have had a Seat in an Isle of the Church: And it was Resolved by the Court, That if a Lord of a manor, or other person, who hath his House and Land in the Parish, time out of mind, and had a Seat in an Isle of the same Church; so that the Isle is proper to his Family, and have maintained it at their charges; That if the Bishop would dispossess him, he shall have a Prohibition: But for a Seat in the Body of a Church, if a question ariseth it is to be decided by the Ordinary, because the Freehold is to the Parson, and is common to all the Inhabitants. And it is to be presumed, That the Ordinary who hath cure of Souls, will take order in such cases, according to right and conveniency; and with this agrees 8 H. 7. 12. And the Chief Justice, Damc Wick her Case, 9 H. 4. 14. which was, The Lady brought a Bill in B. R. against a Parson, Quare tunicam unam vocatam, A Coat armour and Pennons with her Husband Sir Hugh Wick his Arms, and a Sword, in a chapel where he was buried; and the Parson claimed them as Oblations: And it was there held, That if one were to sit in the Chancel, and hath there a place, his Carpet, Livery, and Cushion, the Parson cannot claim them as Oblations; for that they were hanged there is honour of the decased: The same reason of a Coat-Armour, etc. And the Cbief Justice said, The Lady might have a good Action, during her life, in the case aforesaid, because she caused the things to be set up there; and after her death the Heir shall have his Action, they being in the nature of Heir-Looms which belong to the Heir. And with this agrees the Laws of other Nations. Bartho. Cassanae, fo. 13. Con. 29. Actio datur si aliquis Arma in aliquo loco posita deleat aut abrasit, etc. And in 21 Ed. 3. 48. in the Bishop of Carlisle's Case. Note, That in Easter-Term it was Resolved in the Star-Chamber, in the case between Hussey and Katherine Leyton, That if a man have a House in any Parish, and that he and all those whose Estate he hath, have used to have a certain Pew in the Church; that if the Ordinary will displace him, he shall have a Prohibition; but where there is no such prescription, the Ordinary will dispose of common and vulgar Seats.  
(39 
A chapel of Ease taxed by the Mother-Church for reparations thereof. ) In the County of Dorset there was a Mother-Church and also a chapel of Ease within the same Parish; they of the Mother-Church did rate and tax them of the chapel of Ease, towards reparations of the Mother-Church, for the which, upon their refusal to pay the same, being sued in the Ecclesiastical Court, they prayed a Prohibition, and for cause alleged, That they themselves have used time out of mind, etc. to repair the chapel at their own proper cost, without having any Contribution at all from them of the Mother-Church, and that they have been exempted from all charges and reparations of the Mother-Church, and yet for their refusal to pay this Tax, they were libelled against in the Ecclesiastical Court, 
Hill. 7 Jac. B. R. Bulstr. par. 1.  and a Sentence there passed against them; they therefore prayed a Prohibition. By the opinion of the whole Court a Prohibition lieth not in this case, in regard, that this Prescription is merely Spiritual, and therefore a Prohibition denied per Curiam.  
(40.) One was presented ex Officio in the Ecclesiastical Court, for the not frequenting of his Parish-Church; he there pleads, That this was not his Parish-Church, 
A Presentment ex Officio, for not frequenting his Parish-Church. Trin. 9 Jac. B. R. Bulstr. par. 1.  but that he had used to frequent another Parish Church, and to resort unto that: And because they in the Ecclesiastical Court would not receive his plea, the Court was moved for a Prohibition, for that by the Law, in the time of King H. 3. Ed. 3. and Ed. 4. they in the Ecclesiastical Court have not any power to intermeddle with the Precinct of Parish-Churches, neither are they there to Judge, what shall be said to be a man's Parish-Church: And so was the Opinion of the whole Court, and therefore by the Rule of the Court a Prohibition was granted.  
(41.) Touching the Reparations of a Church, and who were liable thereunto, 
Pasch. 8 Jac. B. R. Bulstr. par. 1.  this being a question coming in debate before the Judges: It was Resolved by the whole Court, That for and towards the Reparation of a Church, the Land of all, as well of Foreigners there not inhabiting, as of all others, is liable thereunto, and this is so by the general custom of the place; and this is to be raised by a Rate imposed according to the value of the Land, and that in the nature of a Fifteen, and this is not merely in the Realty, Williams and Yeluerton Justices, and Fleming Chief Justice, Not the Land, but the person of him who occupieth the Land is to be charged. Yeluerton Justice, A man is chargeable for Reparations of a Church by reason of the Land; and for the Ornaments in the Church, by reason of his coming to Church. William's Justice and Fleming Chief Justice, If the person have Land there he is chargeable for both, whether he come to Church or not, for that he may come to Church if he please.  
(42. 
Seats in a Church. ) In a Prohibition the Case was this: The Defendant did Libel before the Bishop of London in the Consistory Court, for a Seat in the Church; Sentence there passed against the Defendant; whereupon he Appealed to the Arches. 
Mich. 11 Jac. B. R. May against Gilbert. Bulstr. par. 2.  The Court was moved for a Prohibition, in regard the Title to the Seat or Pew was grounded upon a Prescription: The Court answered, etc. As for the Title we are not here to meddle with it, this being for a Seat in the Church. Haughton Justice, This Disposition of Pews in the Church belongs of right to the order and discretion of the Ordinary; and to this purpose is the case of 8 H. 7. foe 12, and Sir William Hall's case against Ellis. Doderidge Justice, I moved this case in the Court of C. B. and it was for a Seat in the Church: An Action there brought for Disturbance, and I there cited Hall's case; and 9 E. 4. foe. 14. The Case of the Grave-Stone and Coat-Armor: for the taking of which an Action of Trespass lies at the Common Law, and therefore by the same reason an Action of Trespass should lie for such a Disturbance in a Seat of a Church; but there the Judges did all of them say, That they would not meddle with the deciding of such Controversies for Seats in the Church, but would leave the same to them, to whom more properly it belonged. Croak Justice, Hall's case was this, where a man did build an entire Isle in the Church, and was at continual charge to repair it; if he be disturbed in the use of this, he shall for this Disturbance have his remedy at the Common Law, and so it hath been adjudged; But the Judges all said, We are not here to meddle with Seats in the Church. Doderidge Justice, This Appeal here is like unto a Writ of Error at the Common Law; but it doth differ in this, By the Appeal the first judgement or Sentence is suspended, but after a Writ of Error brought, the first judgement still remains until it be reversed. Coke Chief Justice, It was Pym's Case in the Common Bench, and 8 H. 7. foe 12. that the Ecclesiastical Court hath Jurisdiction and power to dispose of Pews and Seats in the Church; But if there be an Isle built by a Gentleman, or by a Nobleman, and he hath used to Bury there, and there hath his Ensigns of Honour, as a Grave-stone, Coat-Armor, or the like, which belongs not unto the Parson; if he take them, the Heir may well have an Action of Trespass: Otherwise it is, where the same is repaired at the Common charge of the Parish, there they have the disposing of them: Ellis and Hall's Case remembered, a Kentish Case, there the Seat was repaired by him, and was belonging to his Capital message by Prescription, and so triable at the Common Law: And so where the Case is Special, that the party doth wholly and solely repair the same, in such a case, if a Suit be there concerning such a Seat, a Prohibition well lieth, but not otherwise: But if a Nobleman comes to dwell in the country, he is now within the sole order and dispose of the Ordinary for his Pew and Seat in the Church; and upon the former difference was Pym's case adjudged in the C. B. in this principal Case, a Prohibition was denied by the whole Court.   

CHAP. XIII.  
Of Churchwardens, Questmen, and Sidemen.  

1. What such are in construction of Law; how the choice of them is to be made, and wherein the Office doth consist.  
2. What Actions at Law may lie for or against them.  
3. Whether Actions lie for the New Churchwardens in trespass done in time of their Predecessors.  
4. Certain things appertaining to the Church within the charge and office of Churchwardens to provide and preserve.  
5. Cases in Law touching the Election of Churchwardens.  
6. What Sidemen or Questmen are, and their duty.  
7. Action at Law against Churchwardens, touching Distress taken by them for money for relief of the Poor.  
8. A Churchwarden refusing to take the Oath of Enquiry on the 39 Articles, Action thereon.  
9 What remedy in case the Archdeacon refuses to Swear the churchwardens Elect.  
10. The Injunctions of King Ed. 6. touching all Marriages, Baptisms, and Burials to be registered in the presence of the Churchwardens.  
11. Whether the Release of one Churchwarden, shall be a Bar to his Companion, in an Ecclesiastical Suit commenced by them both?  
12. Prohibition, where Churchwardens have pretended a custom to choose the Parish-Clerk.  
13. The like upon a Presentment by Churchwardens against one, in matter more proper for a Leet, than the Ecclesiastical Court, to take cognizance of.  
14. The prevalency of custom against a Canon, in choice of a Churchwarden, in reference to a Vicar and the Parishioners.  
15. If question be, whether Lands next adjoining unto a churchyard shall be charged with the repairs of the Fences thereof, and custom pleaded for it, in what Court cognizable.  
16. In Action of Account by Parishioners against Churchwardens, by whom a Release of C●sts is pleaded, but disallowed in the Ecclesiastical Court; whether Prohibition lies in that case?  
17. Whether Churchwardens are a Corporation qualified for Lands as well as Goods to the use of the Church?  
18. The Churchwardens disposal of Goods, belonging to the Church, without the assent of the Sidemen or Vestry, void.  
19 Churchwardens not Ecclesiastical Officers, but Temporal employed in Ecclesiastical Affairs; Before whom are they to Account?  
20. Whether Churchwardens may have Action for Trespass done to the Church in their Predecessors time?  
21. Whether the Parishioners by force of a custom, or the Parson by virtue of a Canon, shall choose the Churchwarden; and whether Prohibition lies in that case?  
22. Whether Churchwardens, as a Corporation, may prescribe to take Lands to them and their Successors, to the use of the Church?   
1. CHurchwardens, or Guardianis Ecclesiae, are certain Officers Parochial, 
Oeconomi, vel Ecclesiae Guardianis.  annually elected or chosen by and with the consent of the Minister and a select number of the chief Parishioners, according to the custom of the place, to look to the Church and Church-yard, and to take care of the concernments thereof, and of such things as appertain thereto; as also to observe and have an inspection into the Behaviour, Lives, and Conversation of their Parishioners, touching such faults and disorders as are within the cognizance and censure of the Ecclesiastical Jurisdiction. These Officers are a kind of Corporation, enabled to sue and be sued for any matters or things belonging to the Church or Poor of their Parish; 
Churchwardens, if elected by Vestry, where good, and capable to purchase Lands. Vid. St. saviour's in S●uthwark 's Case. Lane Rep.  and have as their Assistants, certain sidemen or Questmen, who according to the custom of the Parish are yearly likewise chosen, to assist the Churchwardens in the Enquiry and presenting such offenders to the Ordinary as are within the Ecclesiastical cognizance and censure aforesaid; for which they are not to be sued or troubled at the Law by any such Offenders so presented as aforesaid 
a Can. 115. ; nor are they obliged to Present oftener than twice a year, except it be at the Bishop's Visitation; yet they may present as oft as they shall think meet, if good occasion shall so require 
b Can. 116. ; but they may not (on pain of being proceeded against by their Ordinaries, as in cases of wilful Perjury in Courts Ecclesiastical) willingly and wittingly omit to present such public Crimes as they knew to have been committed, or could not be ignorant that there was then a public same thereof 
c Can. 117. . Moreover, the Old Churchwardens are to make their Presentments before the New be Sworn; till which time the Office of the old continues; the usual time for the New Churchwardens to enter upon their Office, is the first week after Easter, or some week following, according to the direction of the Ordinary; before which, the old Churchwardens shall exhibit the Presentments of such enormities as happened in their Parish since their last Presentments, and shall not be suffered to transmit or pass over the same to those that are newly chosen 
d Can. 118. . By the Ninetieth Canon the choice of Churchwardens, Questmen, Sidemen, or Assistants is to be yearly made in Easter-week; and that by the joint-consent of the Minister and the Parishioners, if it may be; otherwise, the Minister to choose one, and the Parishioners another; who at their years end, or within a month next after, shall in the presence of the Minister and the Parishioners make a just Account of what they have received and disbursed for the use of the Church, and shall deliver over what remains in their hands belonging to the Church, unto the next Churchwardens by Bill Indented 
e Can. 89. .  
(2.) One brought Action on the Case against Churchwardens, for a false and malicious Presentment of him in the Spiritual Court, and found for the Defendants; They prayed double Costs on the Statute of 1 Jac. But Jones, Crook, and Berkley, Justices, denied it, for that the Statute doth not extend to Churchwardens for things of their office in Ecclesiastical Causes 
f Mich. 8 Car. B. R. Case K●rcheval verse. Smith & alios. Jon●'s Rep. . They have their Action of Trespass at the Common Law for such things taken away out of the Church, as belonged to the Parishioners in reference to the Church 
g 11 H. 4. Tri●. 12 Jac. B. R. Bucksal●'s Case. Roll. Rep. . And the Release of one of the Churchwardens, is no Bar in Law to the other 
h 14 Jac. B. R. in Motam's Case. Roll ibid.  If one take away the Chalice or Surplice out of the Church, Action of Trespass lieth against him at Common Law, and not in the Ecclesiastical Court 
i Per Dod. Mich. 13 Jac. B. R. Bellamie's Case. Roll Rep. . So if one lay violent hands on an Ecclesiastical person, an Action lies in the Ecclesiastical Court, but he shall not there sue for damages 
k Ibid. . If the Organs, or Parish-Bible or the like, be taken away out of the Church, the Action lies at the Common Law and not in the Spiritual Court for the same, for the Churchwardens may have their Action at Common Law in that case 
l Dict. Bucksal●'s Case. It is Felony and sacrilege to steal away the Parish-Bible cut of the Church, and suable at Common Law. : But if the Parson take away out of the Church the Scutcheon or Banner of some person deceased, his Widow (if she did put it there, and it be taken away in her life time) may have her Action of Trespass at Common Law, or after her decease the Heir may have the same Action 
m Co. 9 Ed. 4. & Trin. 12 Jac. Bucksale's Case. Roll. Rep. .  
(3.) Trespass brought by the churchwardens of F. and declared, That the Defendant took a Bell out of the said Church, and that the Trespass was done 20 Eliz. It was found for the Plaintiffs. It was moved in Arrest of judgement, that it appears by the Declaration, That the Trespass was done in the time of their Predecessors, of which the Successor cannot have Action: and Actio personalis moritur cum persona, Vid. 19 H. 6. 66. But the old Churchwardens shall have the Action. Coke contrary, and that the present churchwardens shall have the Action, and that in respect of their Office, which the Court granted. And by Gawdy, Churchwardens are a Corporation by the Common Law, Vid. 12 H. 7. 28. by Frowick, That the New Churchwardens shall not have an Action upon such a Trespass done to their Predecessors; Contrary by Yaxley. Vid. by Newton and Paston, That the Executors of the Guardian in whose time the Trespass was done, shall have Trespass 
n Hill. 31 Eliz. C. B. The churchwardens of Fetherstone 's Case. Leon. Rep. .  
(4.) It is the duty of Churchwardens not only to take care of the Concernments of the Church, and to present Disorders, as aforesaid, but also to provide Bread and Wine against the Communion, the Bible of the largest Volume, the Book of Common Prayer, a decent Pulpit, a Chest for Alms, Materials for repairing the Church, and fencing the churchyard, and the like, all at the Parish-charge, and shall, what in them lies, prevent the profanation of Churches by any usage thereof contrary to the Canons. It was agreed by the Court in Robert's case, That a Tax for the Church cannot be made by the Churchwardens only. Hetley's Rep.  
(5.) In Butt's Case, Moor Serjeant moved at Court for a Prohibition, because where the custom of the Parish or Village was, that the Parishioners have used to elect two Churchwardens: and at the end of the year, to discharge one and elect another in his room, and so alternis vicibus, etc. By the New Canon now the Parson hath the Election of one, and the Parish of the other; and that he that was elected by the Parishioners, was discharged by the Ordinary at his Visitation; and for that he prayed a Prohibition. Et allocat. as a thing usual and of course. For otherwise (by Hubbard) the Parson might have all the Authority of his Church and Parish 
o But●'s Case. Noy Rep. . The like Case to this we have elsewhere reported, viz. The Parson and churchwardens in London by the custom are a Corporation, and the Parishioners time out of mind, etc. have used at a certain day in the 
* Vestry, from Vestments, the place where the holy Vestments are kept. This is used once in the Bible, and but on●●, 2 Ki●. 10. 22. where the Ba●li●es kept thei● Vestments.  Vestry to Elect Churchwardens; They elect A. and present him to the Archdeacon, who refuses A. and forbids him to exercise the Office of a Churchwarden, because the Parson pretended, that by the new Canon the Election of a Churchwarden belonged to him to dispose, etc. and exercise the Office of Churchwarden. And A. is sued ex Officio in the High Commission-Court, amongst other things touching that: A. prays a Prohibition, because the Canon does not take away the custom. Also it would be very mischievous, if the Parson should Elect whom he please to be Churchwarden. And the Parson and Churchwardens being a Corporation, than they may dispose of the Goods and Lands of the Parish as they please. Coke Chief Justice said, That a Convocation hath power to make Constitutions for Ecclesiastical Things or Persons, 20 H. 6. 14. 21 E. 4. 46. But they ought to be according to the Law and custom of the Realm. And they cannot make Churchwardens that were Eligible, to be Donative without Act of Parliament; and the Canon is to be intended where the Parson had nomination of a Churchwarden before the making of the Canon. And now Rule was given for a Prohibition, if cause be not shown to the contrary, etc. ex motione Serjeant Foster 
p Mich. 4 Jac. C. B. Noy Rep. These Sidemen were called Testes Synodales, anciently styled Synods men, thence corruptly called now sidemen. .  
(6.) As touching Sidemen, otherwise called Questmen, they are only such as are annually chosen, according to the custom of every Parish, to assist the Churchwardens in the enquiry and presenting such Offenders to the Ordinary, as upon such Presentments are prosecuted and punishable in the Ecclesiastical Court.  
(7.) In an Action of Trespass against the Churchwardens, where by the Statute of 43 Eliz. cap. 2. if for a Distress taken by them, for money for the relief of the Poor, Trespass be brought against them, and Verdict pass for them, the Defendants shall recover triple damages with their Costs; And that to be assessest, etc. by the same Jury, or by Writ of enquiry of damages, it was Resolved (1) That the Costs shall not be trebled, but only the damages. (2) That the triple damages are well assessest by the Jury, although that it be not done by the Court. Because the words are [by the same Jury to be assessest] and not damages to be trebled by them 
a Okely verse. Salter. Noy 's Rep. .  
(8.) Upon an Habeas Corpus the Case was returned to be, That H. being Churchwarden, refused to take the Oath of Enquiry of the 39 Articles touching Ecclesiastical matters. And the warrant of the Commitment of the High Commissioners was to retain him, and until we shall give order for his delivery. By the Court, etc. Until we, that is, All we, 12 Ed. 4. 3. a. 1 H. 7. 7. a. that is not good; for if then any of them dies, or be removed, The party shall never be delivered by that means: But it ought to be, Until he shall be lawfully delivered. But notwithstanding the Churchwarden was not out upon Bail, because now also he refused to take that Oath: But with a So far forth as the Articles do agree with the Law of God and the landlord. Note, that such subscription or consent to the Articles 13 Eliz, by a Parson is not good. As it was Adjudged in 33, & 34 Eliz. B. R. Clark against Smithfield: But afterwards the churchwarden was delivered by the High Commissioners 
b Wharton's Case. Noy's Rep. .  
(9) If the Parishioners have time out of mind used to choose two Churchwardens yearly, and to present them to the Archdeacon to be Sworn, and he have used to Swear them, and upon such election and presentation to him to be Sworn he shall refuse to Swear them, a Writ may issue out of the King's Bench, directed to the Archdeacon, commanding him to Swear them, Mich. 15 Jac. B. R. such Writ was granted for the Churchwardens of Sutton Valence in Kent; for although there was a Canon made primo Jac. to the contrary, yet that cannot take away the custom, Tr. 15 Car. B. R. The like Writ was granted for the Churchwardens of the Parishes of Ethelborough and St. Thomas Apostles in London, after divers motions, and upon hearing of the Council on both sides, Pasch. 4 Car. B. R. Rot. 420. between Draper and Stone. The like Writ was granted for the Churchwardens of Holberton in Devon 
c Roll. Abr. verb. Prerog. lit. L. . If one be chosen Churchwarden, and the Official of the Bishop refuse to Administer his Oath to him, he shall have a Special Writ directed to the Official, commanding him to give him his Oath. Trin. 17 Jac. B. R. Bishop's Case. Roll Rep. Note, That an Attorney cannot be a Churchwarden: if he be chosen, and refuse, and be sued for such a Refusal in the Ecclesiastical Court, he may have a Prohibition. Pasch. 14 Car. 1. B. R. in Wilson's Case, & Trin. 15 Car. 1. B. R. Barker's Case. rolls Cases, 2. par. fo. 272.  
(10.) By the Injunctions of King Ed. 6. An. 1547. to all the Clergy as well as Laity of this Realm, it is required, That the Parson, Vicar, or Curate, and Parishioners of every Parish within this Realm, shall in their Churches and chapels keep one Book or Register, wherein they shall write the day and year of every Wedding, christening, and Burial, made within their Parish, etc. and therein shall write every persons Name that shall be so Wedded, christened, or Buried. And for the safe keeping the said Book, the Parish shall be bound to provide of their common charges, one sure Coffer, with two Locks and Keys, whereof the one to remain with the Parson, Vicar, or Curate, and the other with the Wardens of every Parish-Church or chapel, wherein the said Book shall be laid up: Which Book they shall every Sunday take forth, and in the presence of the said Wardens, or one of them, writ or record in the same, all the Weddings, christen, and Burials made the whole week before; and that done, to lay up the Book in the said Coffer, as before. And for every time that the same shall be omitted, the party that shall be in the fault thereof, shall forfeit to the said Church three shillings four pence, to be employed to the Poor men's Box of that Parish 
d Vid. Bishop Sparrow's Collection, etc. pa. 5. .  
(11.) A man taxed by the Parish for Reparation of the Church, was sued for the Tax by the Churchwardens in the Ecclesiastical Court: 
Hill. 7 Jac. 1609. B. R. Barton's Case. Brownl. Rep. p●r. 2.  Depending this Suit one of the Churchwardens released to the Defendant all Actions, Suits, and Demands; the other churchwarden proceeded in the prosecution of the Suit, and upon this the Defendant procured a Prohibition; upon which matter shown therein was a demur joined. Davenport moved for a Consultation. The Question was, where two Churchwardens sue in the Ecclesiastical Court for a Tax, and one of them Release, whether that Release shall bar his Companion or not? It seemed to him, that this Release shall not be any bar to his Companion, or impediment to sue; for he said, That Churchwardens are not parties interessed in the Goods of the Church, but are a special Corporation for the benefit of the Church; for which he cited the Case in 8 E. 4. 6. The Churchwardens brought Trespass for the Goods of the Church taken out of their possession, and they counted Ad damnum Parochianorum, and not to their proper damage; and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9 where it is said expressly, That the Wardens of a Church are a Corporation only for the benefit of the Church, and not for the disadvantage thereof; but this Release sounds to disadvantage of the Church, and therefore seems to be no bar: Also this Corporation consists of Two persons, and the Release of one is nothing worth; for he was but one corpse, and the moiety of the corpse could not Release; and for these Reasons he prayed a Consultation. Yeluerton to the contrary, and he took a difference and said, That he agreed, that if the Wardens of the Church have once possession of the Church, there in Action of Trespass brought for these Goods one Warden cannot Release: But this Tax for which they Sue is a thing merely in Action, of which they have not any possession, and there he cannot Sue alone; and therefore this Release shall bar his Companion. The Court interrupted him and said, That clearly Consultation shall be granted; Fleming Chief Justice, We have not need to dispute this Release, whether it be good or not? and there is a difference where Suit is commenced before us, as if Churchwardens brought Trespass here for Goods of the Church taken, and one Release, than we might dispute whether this Release were good or not; but when the matter is originally begun before them in the Ecclesiastical Court, and there is the proper place to sue for this Tax, and not any where else, we have nothing to do with this release; for which reason by the whole Court a Consultation was granted. In an Action in the Ecclesiastical Court by two Churchwardens, if the Defendant plead the Release of one of them, that shall be tried there, and no Prohibition shall be granted. Vid. Roll. Abr. ver. Prohibition, pag. 306. nu. 3.  
(12. 
Mich. 22 Jac. B. R. Between Walpoole and Coldwell for the Clerk of S. Tho. Apost. Lond. Intratur Hill. 22 Jac. Rot. 466. P. 19 Jac. B. R. Rot. 177. P. 11 Car. B. S●i●h and Pannel's Case. Hob. Rep. Case 311. ) If the Churchwardens of a Parish have used time out of mind, etc. to choose the Parish-Clerk, and Suit be in the Ecclesiastical Court to remove him, and to put in one of the Parson's choice, a Prohibition lies, as in Walpool's case; but there the Prohibition was granted by the consent of parties, to try the custom. The like Prohibition was granted between Brown and Crawshawe for White-Chappel Parish. And the like granted between Beaumond and Westley for the Parish of St. Cuthberts' in Wells.  
(13.) If a Presentment be made by the Churchwardens of a Parish in the Ecclesiastical Court, That J. S. one of the Parishioners is a Railer and sour of Discord among his Neighbours, a Prohibition lies; for that belongs to the Leet, and not to that Court, unless it were in the Church or such like place.  
(14. 
P. 5 Jac. B. R. The Parishioners of Rolvendon in Kent. Adjudged. Tr. 7 Car. B. R. between Shirley and Brown. Rot. 1, 91. P. 4 Car. B. R. Rot. 420. Draper and Stone. ) Where the Parishioners of a Parish have used time out of mind, etc. to choose one Churchwarden, and the Vicar another; and afterwards a Canon is made, That the Vicar shall choose both, and so he doth accordingly, and the Parishioners shall choose one according to the custom, and the Ordinary disallow him, and confirm the Two chosen by the Vicar, a Prohibition hath been granted in this case. So likewise a Prohibition was granted against the churchwardens, chosen by the Parson of St. Magnus near London-Bridge by force of the Canon, on a surmise, That the Parish had a custom to Elect both Churchwardens. The like also was granted for Abchurch in London.  
(15.) Where the Churchwardens sued in the Ecclesiastical Court J. S. supposing in their Libel, that he and all those whose Estate he hath in certain Land next adjoining to the churchyard, 
Mich. 14 Car. B. R. The Churchwardens of Claydon and Duncombe. Roll. Abr. pag. 287.  have used time out of mind, etc. to repair the fences of the churchyard next adjoining to the said Land: In this case it was said, that a Prohibition lies, and that it ought to be tried at Common Law, for that it is a charge to the Temporal Inheritance.  
(16.) If the Parishioners sue the Churchwardens of the Parish in the Ecclesiastical Court to make an Account, and in that Suit costs of Suits are Taxed for the Parishioners against the churchwardens, and after the Churchwardens pay the costs to one of the Parishioners, and thereupon he that receives the costs gives a Release to the Churchwardens for the said costs, and that Release is after pleaded by the Churchwardens against the other Parishioners in the Ecclesiastical Court, 
Mich. 15 Car. B. R. inter Homes & Go●d in per Cur.  and they there disallow it; yet no Prohibition granted, for that they have cognizance of the Original, viz. the costs, they shall have cognizance also what shall be a sufficient payment thereof. And in this case a Prohibition was denied.  
(17.) The Churchwardens cannot prescribe to have Lands to them and their Successors, 
Pasch. 37 El. B. inter Longley & Meredine.  for they are not any Corporation to have Lands, but for Goods for the use of the Church. And therefore it seems at the Common Law, if a Feoffment be made to the use of the Churchwardens of D. it is a void use, for they have no capacity for such purchase.  
(18.) The Churchwardens gift of Goods in their custody without the assent of the Sidemen or Vestry, is void. If a man take the Organs out of the Church, 
38 El. Methold and Win●'s Case, cited by Coventry.  the Churchwardens may have Action of Trespass for them, for the Organs belong to the Parishioners, and not to the Parson; therefore the Parson cannot sue him in the Ecclesiastical Court that takes them away. 
Trin 12 Jac. B. R. per Cur. adjudged. Mich 37, 38 Eliz. B. R. Mithold and wins Case, ut sup●. Adjudged.  The Churchwardens by the assent and agreement of the Parishioners may take a decayed Bell, and deliver it to the Bell-Founder, and that by their agreement he shall have 4 l. for the casting thereof, and retain it until the 4 l. be paid; and that Agreement of the Parishioners shall excuse the Churchwardens in a Writ of Account brought against them by their Successors Churchwardens; for the Parishioners are a Corporation to dispose of such personal things as appertain to the Church.  
(19 B. Churchwarden of the Church of S. was sued in the Ecclesiastical Court to Account for the Moneys which he had received and expended by reason of his Office the last year past, and for obtaining a Prohibition he suggested, That per Legem terrae, he ought to Account before the Minister of his Parish, the succeeding Churchwardens, and a great number of the Parishioners; and that he had Accounted accordingly. Henden, the Ecclesiastical Judge ex Officio may compel him to Account before him: I agree that Churchwardens for all personal things concerning the Church are a Corporation 8 E. 4. 6. and for Goods of the Church they may have Action, 
Hill. 16 Jac. B. R. Bishop's Case. rolls Rep.  and count to the damage of the Parish, and the succeeding Churchwarden may have Action against his Predecessor as against a Stranger, but not as against an Officer for what he did ratione Officii, and then if he shall not be enforced to Account in the Ecclesiastical Court, than there will be no remedy against him, vid. 12 H. 28. (2) He is an Ecclesiastical Officer, and therefore proper to the Ecclesiastical Judge to have Jurisdiction of his Account; And a Clerk of a Parish may sue in the Ecclesiastical Court for his Fees, which are called Largitiones Charitativae, vid. Register fo. 52. for he is quodammodo an Officer Spiritual, 21 E. 4. 47. But notwithstanding this, a Prohibition was granted; And Montague Chief Justice said, That a Churchwarden is not an Ecclesiastical Officer, but Temporal employed in Ecclesiastical business; Quaere, Whether in that case the Minister may require him to render an Account? and if he refuse, Whether the Ecclesiastical Judge may compel him to Account.  
(20.) 
Hadman and Ringwood's Case. Cro. par. 1.  In Trespass by Churchwardens, for taking a Bell out of the Church in the time of their Predecessors, it was adjudged, That the Action did lie, whereas it was declared ad damnum ipsorum; which shall be supposed ad damnum Parochianorum.  
(21.) 
Warner's Case. Cro par. 2.  The Parishioners of the Parish of all-hallows in London, did prescribe to choose their Churchwardens every year, and they chose W. their Churchwarden; The Parson by virtue of a late Canon, that he should have the Election chose C. to be Churchwarden, and procured him to be Sworn in the Ecclesiastical Court; and a Prohibition was prayed, for that it being a Special custom the Canons cannot alter it, and if every Parson might have Election of the Churchwardens without the assent of the Parishioners, they might be much prejudiced: And so it was said, That it had been adjudged, Pasch. 5 Jac. in the case of the Parishioners of Walbrook in London.  
(22.) 
●inch. lib. 2. cap. 17. p. 179. rolls Cases. par. 1. fo. 393.  Although (as aforesaid) the Law doth make churchwardens a kind of Corporation, and enables them by that Name to take movable Goods and Chattels, and to sue and be sued at Law concerning such Goods for the use and benefit of their Parish; yet they cannot take an Estate of Lands to them by name of churchwardens; nor can Churchwardens prescribe to have Lands to them and their Successors, for they are no Corporation to have Lands, but for Goods of the Church only.   

CHAP. XIV.  
Of Consolidation or union of Churches.  

1. Consolidation, what; whence so called; by whom, and in what cases it may be made.  
2. The several kinds of Consolidation.  
3. The reasons and grounds thereof in the Law.  
4. The Requisites of Law in order to a Consolidation.  
5. How Consolidation is practised here with us, and how in France.  
6. The division or distinction which the Canon Law makes of Consolidation.   
(1.) COnsolidation is the uniting, combining, or consolidating of two Churches or Benefices in one 
a Broo. tit. Union. 37 H. 8. c. 21. . This cannot be done without the consent of the Bishop, the Patron, and the Incumbent. This word thus used in an Ecclesiastical sense, takes its denomination from what the Civil Law intends by consolidating the Interest of Possession and Property together, which in that Law is called, Consolidatio ususfructus & proprietatis; As when a man having the Usufruct of certain Lands by way of Rent, Devise, or otherwise, doth then and at the same time purchase the Fee or Inheritance thereof; hoc casu Consolidatio fieri dicitur. Instit. de Vsufruct. §. 3. So that in such Secular concerns, according to that Law, it properly signifies an Uniting of the possession, occupation, or profit, with the Property of the thing so prepossessed; which is sometimes called an Unity of possession, 
37 H. 8. c. 21. 1 Ed. 6. c. 9 17 Car. 2. c. 3.  being a Joynt-possession of two Rights in the same person by distinct and several Titles. By the Statute of 37 H. 8. cap. 21. it was lawful to make an Union or Consolidation of two Churches in one, whereof the value of the one was not above six pounds in the King's Books of the First-Fruits, and not above one mile distant from the other. And by a late Statute of 17 Car. 2. cap. 3. it may be lawful for the Bishop of the diocese, Mayor, bailiffs, etc. of any City or Town Corporate, and the Patron or Patrons, to unite two Churches or chapels in any such City, Town, or the Liberties thereof; provided the Churches so united exceed not the annual value of an hundred pounds, unless the Parishioners esire otherwise. 
St. 17 Car. 2. c. 3.  See the Statute at large.  
(2.) By this Consolidation or Union of Churches one of the Benefices becomes void, yea extinct in Law, Illud enim quod alteri unitur, extinguitur, neque amplius per se vacare dicitur. DD. in c. cum access●ssent. de Constit. & Judo. Gomez. in Regul. Cancel. Gall. de Trien. possess. q. 8. Jo. Andr. ad Clem. 1. de Supplen. Neglig. Praelat. Again, the Law in express terms says, That intereunt Beneficia Vnione, quando duo vel plura Beneficia in unum in perpetuum conjunguntur. c. Sicut unire. de Excess. Praelat. Of this Consolidation or Union the Law makes a threefold distinction, or it may be done three several ways in construction of Law, (1) When one and the same person is set or appointed over two Churches. Can. & temporis qualitas. 16. q. 1. c. 1. Ne Sede vacant. This with us amounts to a Plurality, but not unto a Consolidation or Union. (2) When one Church is so united to another, that that which is United, amittit jus suum, & eo utitur cui fit unio. c. Recolentes. §. sin. de Stat. Monac. & Lindw. de Locat. & Conduct. c. licet glow. verb. Appropriationum. (3) When Two or more Churches or Benefices are so united together, as that the one is not subject to the other, in which case Quod melius est, retinetur. arg. c. Medicamentum. de poenit. dist. 1. gl. in regu. 11. Cancel. Innoc. 8.  
(3.) There are several Causes or Reasons in the Law for this Consolidation, Incorporation, Annexation, or Union of Churches; and they are chief these five, (1) An unlawful dividing of those Churches or Ecclesiastical Benefices, precedent to their reintegration or intended reconsolidation, as when such as had been formerly united, were illegally divided. Otho. Constit. Ne Ecclesia una, c. cum sit ars. gl. ib. in ver. Reintegrentur. (2) For the better Hospitality, and that the Rector might thereby be the better enabled to relieve the Poor. 25. q. 2. posteaquam. §. his ita. & dict. gl. Otho. Const. (3) The overnighness of the Churches each to other in point of situation, insomuch that one Rector may commodiously discharge the Cure of both, by reason of the vicinity of the places. Arg. extr. de Praebend. c. Majoribus. (4.) For or by reason of a want or defect of Parishioners, as when one of the Churches is deprived of her people by some incursion of an Enemy, or by some mortal Disease or Sickness, or the like. 11. q. 1. Vnio. & gloss. ubi supra. (5.) For and by reason of the extreme Poverty of one of the Parishes. Extr. de eta. & qua. eam te. Extr. de Praebend. vacant. in fin. vid. Tholos. Syntagm. jur. lib. 17. cap. 5. nu. 7. All which Causes or Reasons of Consolidation are enumerated out of the Canon Law by John dè Aton in his Gloss upon Cardinal Otho's Constitutions, and whatever other causes of Consolidation are asserted by the DD. may be all referred to one or other of the foresaid Reasons. Likewise, there are certain Solemnities required by the Canon Law, to be used and observed in the consolidation and union of Churches and Ecclesiastical Benefices, the impracticability whereof in this Realm, having otherwise provided in such cases, can have no such malign influence in Law, as to invalidate the thing for want of some Circumstantials, so long as there is a retention of the Essentials, according to the Laws and Constitutions of this Kingdom. Vnio facta ab Episcopo debet intervenire Consensus Capituli sui. Clem. si una. de reb. Eccl. non aliened. Item requiritur Consensus Patroni. Clem. in agro. §. ad haec de Stat. Mona. Item, Nullum habet effectum vivente Beneficiato. Card. Zab. in dict. Clem. Si una, etc. Item, Verus valor Beneficiorum Exprimi debet, etc.  
(4.) In all Consolidations regularly there ought to be Causa Necessitatis vel Vtilitatis: Also the just and true value of the Benefices ought to be known, as well of that which is to be united, as of that to which the other is unitable; in order whereunto there ought to issue a Commission of Enquiry touching the said cause and value, at which all persons pretending Interest, are to be or may be present upon Summons or Notice thereof timely given them to that end; for no Consolidation or Union of that kind ought to be made non vocatis vocandis. Rebuff. Resp. 195.  
(5.) This Form touching Consolidations and union of Churches and Ecclesiastical Benefices is practised in France; which, though there appears nothing therein but what seems consonant to Reason, yet the Statute-Laws of this Realm have herein made other provision in this matter: And that which we now commonly call Consolidation, the Canon Law, which is best and most properly acquainted with this matter, calls union; Touching which there are in use and practise many things in divers Nations and Countries, which were Incognita to the Interpreters of that Law, and not in all things consonant to each other; thereby rendering this Subject the more perplexed by reason of the several modes of practice, diversified according to the various Constitutions of several Nations respectively; for which reason the Interpreters of the Canon Law are the less positive in reducing the state of this matter to such a point of certainty, as may be said Infallible in Law; only they all agree in some certain Essentials to an Union, as also (for the most part) in this Definition thereof, viz. That Vnio est Beneficiorum seu Ecclesiarum ab Episcopo, vel ab alio Superiore facta annexio. To which this also may be added by way of description, though not by way of definition, That quando fit unio, Ecclesia in proprietatem concedi solet. Cap. in cura. de jur. Patronat. and it must be Vnio Beneficiorum, for there cannot be an Union unless there be plura Beneficia in the case. L. 1. & per totum. ff. de Optio. Legat. Also it is Beneficiorum seu Ecclesiarum, because the word [Benefice] is in itself a general term comprehending all Benefices, great and small, Regular and Secular, Dignities and Offices: C. 1. de reg jur. in 6. c. extirpandae. §. qui vero. de Praebend. So that bishoprics, as well as other Benefices, may be united and annexed; But a bishopric, which the Law calls culmen Dignitatis, doth not regularly fall under the name or notion of Benefice: c. pen. de Praebend; and yet two bishoprics may be united. c. Decimas, & seq. 16. q. 1. Rebuff. de union. Benefic. nu. 4, 5.  
(6.) This Consolidation or Union at the Canon Law, is either Perpetual or Temporal; if Perpetual, than it must be so expressed in the Union, that in perpetuum univimus: c. exposuisti, de Praeb. if Temporal, than it is only for his life in whose favour the union is made, c. 1. ne Sede vacant, and at his death it expires, c. quoniam Abbas, de Offic. Delegat. But the Practice with us knows nothing of the Temporal Member of this distinction; nor is the practice thereof at this day received in France, Rebuff. ubi supr. nu. 9 such Temporal Unions being only in contemplatione personae, non Ecclesiae, whereas the Law is, Ecclesiae magis favendum est, quam personae. Dic. c. 1. & c. requisisti, de Testa. & Oldr. Consil. 257. And where two Parochial Churches are consolidated or united, that Church to which the other is united, shall be the superior and principal, the other which is united, is the inferior and accessary, yet shall enjoy the privileges of that Church to which she is united. c. recolentes, in fin. de stat. Monach. Lastly, The more worthy Benefice is never united to the minus digno, and therefore a Parochial Church may not be united to a chapel, sed è contra. Sic c. exposuisti, de Praebend.   

CHAP. XV.  
Of Dilapidations.  

1. What Dilapidation signifies; how many ways it may happen; the Remedies in Law in case thereof; and to what Court the cognizance thereof properly belongs.  
2. Provision made by the Canon for prevention of Dilapidations.  
3. Dilapidation twofold in construction of Law; An Exposition of the said Canon; the Bishop's power of Sequestration in case of Dilapidation.  
4. By whom the Body of the Church, and by whom the Chancel shall be kept in repair; How the charge of Repair in the case of Dilapidations shall be apportioned; and what the Law in such cases, where one Parish is divided into Two.  
5. Dilapidation of Ecclesiastical Edifices, a good cause in Law of Deprivation.  
6. The Injunction of King Ed. 6. for prevention of Dilapidations  
7. Leases made by a Parson, void by Statute for nonresidence, to prevent Dilapidations.  
8. The wasting the Woods of a bishopric, a Dilapidation in Law; such Woods being the Dower of the Church.  
9 A Vicar felling down Timber Trees and Wood in the churchyard, is a Dilapidation, and good cause of Deprivation.   
(1.) DIlapidation is the Incumbents suffering the Chancel or other the Edifices of his Ecclesiastical Living to go to ruin or decay, neglecting to repair the same; It extends also to his committing or suffering to be committed any wilful Waste in or upon the Glebe-woods or other Inheritance of his Church. Against which provision is made by the Provincial Constitutions, whereof Sir Simon Degge takes notice in his Parson's Counsellor 
a Pars. Couns par. 1. cap. 8. ; though in truth the Canon there provides rather as to satisfaction for, than prevention of such Dilapidations. Lindw. c. si Rector alicujus Ecclesiae, & Gloss. ibid. But the Canon Law is express and full in all respects relating to this implicit sacrilege, nor doth the custom of England or the Common Law leave the Church without sufficient Remedy in this case, albeit it postpones the satisfaction of damages for Dilapidations to the payment of Debts, as the Canon Law prefers it before the payment of Legacies. Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Bishop of Durham by order of Parliament in Edward the First's time, for wasting the Woods belonging to that bishopric 
b Co. 11. 49. 2. . Also of the Archbishop of Dublin's being Fined three hundred Marks for disforresting a forest belonging to his archbishopric 
c Rot. Pa. 14 H. 3. in. 8. . Likewise, that by several Books of the Common Law, a Bishop, etc. wasting the Lands, Woods, or Houses of his Church, may be deposed or deprived by his superior 
d 20 H. 6. 46. a. 2 H. 4. 3. b. Co. 11. 94. b. 29 E. 3. 16. a. 9 E. 4. 34. a. . And in case any Parson, Vicar, etc. shall make any Conveyance of his Goods, to defraud his Successor of his Remedy in case of Dilapidations; in that case it is provided by the Stat. of 13 Eliz. c. 2. that the Spiritual Court may in like manner proceed against the Grantee, as otherwise it might have done against the deceased Parson's Executors or Administrators 
e St. 13 El. c. 2. : and all such Grants to defraud any person of their just actions, were made void by a later Statute 
f St. 13 El. c. 5. . It is agreed, That the cognizance of Dilapidations properly and naturally belongs to the Ecclesiastical Jurisdiction, and no Prohibition to lie in the case; or if such happen to be granted, than the same to be superseded by a Consultation 
g F. N. B. 51. f. : yet it seems Actions upon the Case grounded upon the custom of England, have been brought in this case at Common Law, and damages recovered 
h Vid. Pars. Couns par. 1. cap. 8. . It is also enacted by the Statute of 14 Eliz. That that Moneys recovered upon damages for Dilapidations, shall be expended in and upon the Houses, etc. dilapidated 
i St. 14 El. c. 11. .  
(2.) Cardinal Othobon in his Canon [De Domibus Ecclesiarum resiciendis] hath constituted and ordained, That all such Ecclesiastical persons as are Beneficed, take special care, that from time to time they sufficiently repair the Dwelling-houses and other Edifices belonging to their Benefices as oft as need shall so require; unto which duty they are earnestly and frequently to be exhorted and admonished, as well by their Diocesans as by the archdeacon's. And if they shall for the space of two months' next after such Monition neglect the same, the Bishop of the diocese may from thenceforth cause it to be effectually done at the Parson's charge out of the profits and fruits of his Church and Benefice, taking only so much and no more as may suffice for such Repairs; And the Chancels of Churches to be in like manner repaired by those who are obliged thereto. And as to Archbishops, Bishops, and other inferior Prelates, they are by the said Canon enjoined to keep their Houses and Edifices in good and sufficient Repair sub divini Judicii attestatione. Constit. Othobon. de dom. Eccl. re●i●. Sub divini Judicii attestatione (h. e.) damnationis aeternae in extremo Cal●ulo. Glow. in ver. Sub divini. Const. Othobon. de resident. Archiepisc.  
(3.) By the Gloss on that Canon it is inferred, That a Parson may be guilty of Dilapidations, or of a Neglect in that kind two ways, viz. either by not keeping the Edifices in good repair, or by not repairing them being gone to decay. That Canon chief refers to the Mansion-houses of all Benefices Ecclesiastical, and that not only of all Parsonages and Rectories, but also of all bishoprics, and of all Curates and prebend's, and of all others having Ecclesiastical live; but not specially (by the words of this Canon) unto their Farm-houses, though they also are by the Canon Law provided for in case of Dilapidations. And such as neglect the Reparations aforesaid, may be accused and convicted thereof before the Diocesan, who hath power to sequester the Fruits of such Benefice for the Reparations aforesaid, Gloss. in ver. cessaverit. in dict. Can. such Fruits thereof being in construction of Law, as it were tacitly hypothecated by a certain kind of privilege for such Indemnity; and for that reason the Bishop in some cases may for that end sequester the same.  
(4.) And whereas in the abovesaid Canon it is said, That Chancels shall be kept in repair by such as are thereunto obliged, it is to be understood, that that is spoken by way of allusion to the common custom in England, whereby the Body of the Church is usually repaired by the Parishioners, and Chancels by the Rectors, who notwithstanding aught to be at the care, though not at the costs, of the other also; he being annually accountable to the Bishop for the same, if the Bishop so please; for which reason the Rector hath power to audit the Accounts of the costs and charges about the same, as also what shall be given or bequeathed by way of Legacy for that end and purpose. And where this custom prevails, That the Parishioners shall repair the Body of the Church, it is not to be understood, that this is incumbent on them as a Real, but as a Personal duty or burden; yet every Parishioner proportionably to that quantity of Land which he holds within the Parish, and number of cattle he feeds on the same: Gloss. ibid. in ver. ad hoc tenentur. And in case one Parish be by legal Authority divided into Two, in that case, if such division were made by and with the consent of these Four, viz. the Bishop, the Patron, the Parson, and the Parishioners, than the more Ancient Church shall not contribute to the Reparations of the New, for that now they are two dictinct Parishes. Gloss. ibid.  
(5.) 
Co. Inst. pa. 3. cap. 97. 29 E. 3. 16. 2 H. 4. f. 3. 9 E. 4. 34.  Sir Ed. Coke in the third part of his Institutes, having spoken of erecting of Houses and Building, etc. tells us what he finds in the Books of the Common Law and Records, touching Dilapidations and decay of Buildings, and having Margined as here in this margin, says, That Dilapidation of Ecclesiastical Palaces, Houses, and Buildings is a good cause of Deprivation.  
(6.) By the Injunctions of King Ed. 6. An. 1547. to all his Clergy, it is required, That the Proprietors, Parsons, Vicars, and Clarks, having Churches, chapels, or Mansions, shall yearly bestow upon the same Mansions or Chancels of their Churches being in decay, the fifth part of their Benefices, till they be fully repaired; and the same so repaired, shall always keep and maintain in good estate 
k Bishop Sparrow's Collect of Articles, etc. pa. 5. . Consonant to which is the Thirteenth Article of Queen Elizabeth's Injunctions, given to all the Clergy, An. 1559.  
(7.) The Case was, where the Parson made a Lease to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands usually let, rendering the ancient Rent, the Patron and Ordinary confirmed it, 
Hill. 31 Eliz. B. R. Mott & Hal●'s Case. Cro. par. 1.  the Lessee let part of the term to the Defendant, the Parson died, the Successor entered and leased to the Defendant; against whom the Lessee brought Debt upon the former Lease, who pleaded the Statute of 13 Eliz. which made all Leases void, where the Parson is not resident, or absent for 80 days: It was Adjudged, That the Lease was void by the death of the Incumbent; for the Justices said, The Statute doth provide against Dilapidations, and for maintenance of Hospitality; and therefore provided the Leases shall be void not only for nonresidence, but by death or resignation; for otherwise Dilapidations should be in the time of the Successor, and he cannot maintain Hospitality.  
(8.) The wasting of the Woods belonging to a bishopric, is in the Law understood as a Dilapidation, as was formerly hinted. Note, By Coke Chief Justice, a Bishop is only to fell Timber for Building, 
What Timber a Bishop may fell, and for what purposes.  for Fuel, and for his other necessary occasions, and there is no bishopric but the same is on the Foundation of the King; the Woods of the bishopric are called the Dower of the Church, and these are always carefully to be preserved; and if he fell and destroy this, upon a motion thereof made to us (says the Lord Coke) we will grant a Prohibition: And to this purpose there was a great Cause which concerned the Bishop of Duresm, who had divers Cole-Mines, and would have cut down his Timber-Trees for the maintenance and upholding of his Works; and upon motion in Parliament concerning this, for the King, Order was there made, that the Judges should grant a Prohibition for the King; and we will here (says he) revive this again, for there a Prohibition was so granted. And so upon the like motion made unto us in the like case, we will also for the King grant a Prohibition by the Statute of 35 E. 1. If a Bishop cut down Timber-Tres for any cause, unless it be for necessary Reparations (as if he sell the same unto a Stranger) we will grant a Prohibition: And to this purpose I have seen (said he) a good Record in 25 E. 1. where complaint was made in Parliament of the Bishop of Duresm (as before) for cutting of Timber-Trees for his Cole-Mines, and there agreed that in such a case a Prohibition did lie; 
Mich. 12 Jac. B. R. Chapman verse. Jane Barnaby. Bulstr. Rep.  and upon motion made a Prohibition was then granted; and the Reason then given, because that this Timber was the Dower of the Church; and so it shall be also in the case of a Dean and Chapter; in which cases, upon this ground we will grant (as he said) Prohibitions; and the whole Court agreed with him herein. Also in Sakar's case, against whom judgement being given for Simony, yet he being by assent of parties to continue in the Vicarage for a certain time, this time being now past, and he still continuing in possession, and committing of great Waste, by pulling down the Glass-windows, and pulling up of Planks, the Court granted a Prohibition, and said, That this is the Dower of the Church, 
Mich. 13 Jac. B. R. The King against Zakar. Bulstr. par. 3.  and we will here prohibit them, if they fell and waste the Timber of the Church, or if they pull down the houses: And Prohibition to prevent Dilapidations, and to stay the doing of any Waste, was in that case awarded accordingly.  
(9) In a Prohibition, the Case was this: A Vicar lops and cuts down Trees growing in the churchyard; the Churchwardens hinder him in the carriage of the same away, 
Mich. 13 Jac. B. R. Knowll and All. vers. Harvey. Bulstr. par. 3.  and they being in Trial of this Suit: The Churchwardens by their Counsel, moved the Court for a Prohibition to the Vicar, to stay him from felling any more. Coke Chief Justice, This is a good cause of Deprivation, if he fell down Timber-Trees and Wood, this is a Dilapidation; and by the Resolution in Parliament, a Prohibition by the Law shall be granted, if a Bishop fells down Wood and Timber-Trees. The whole Court agreed clearly in this, to grant here a Prohibition to the Vicar to inhibit him not to make spoil of the Timber, this being (as it is called in Parliament) the Endowment of the Church. Coke, we will also grant a Prohibition, to restrain Bishops from felling the Wood and Timber-Trees of their Churches. And so in this principal Case, by the Rule of the Court a Prohibition was granted.   

CHAP. XVI.  
Of Patrons, & de jure Patronatus.  

1. What Patron properly signifies in the Law; the Original thereof; and how subject to corruption.  
2. In what case the Bishop may proceed de jure Patronatus, and how the Process thereof is to be executed.  
3. How the Admittance ought to be, in case the same Clerk be presented by two Patrons to the same Benefice.  
4. In what cases of avoidance, Notice thereof aught to be given to the Patron; and what course in that case the Bishop is to take, in case he knew not the true Patron.  
5. Several Appellations in Law, importing Patron.  
6. How many ways a Church may become Litigious.  
7. Whether an Advowson may be extended?  
8. In what case the Patron may Present, where the King took not his turn upon the first Lapse.  
9 A Patron may not take any benefit of the Gl●be during a Vacancy.  
10. In what case the Patron shall not by bringing the Writ of Qua. Imp. against the Bishop, prevent the incurring of the Lapse to the Ordinary.  
11. The King is Patron Paramount, and Patron of all the bishoprics in England: The Charter of King John, whereby bishoprics from being Donative became Elective.   
(1.) PATRON, by the Canon Law, as also in the Feuds, (wherewith our Common Law doth herein accord) doth signify a person who hath of right in him the free Donation or Gift of a Benefice, grounded originally upon the bounty and beneficence of such as Founded, Erected, or Endowed Churches with a considerable part of their Revenue. De Jur. Patronat. Decretal. Such were called Patroni à patrocinando, and properly, considering the Primitive state of the Church; but now according to the Mode of this degenerating Age, as improperly, as Mons à movendo; for by the merchandise of their Presentations they now seem, as if they were rather the Hucksters than Patrons of the Church. But from the beginning it was not so, when for the encouragement of lay-people to works of so much Piety, it was permitted them to present their Clerks where themselves or their Ancestors had expressed their Bounty in that kind; whence they worthily acquired this Right of Jus Patronatus, which the very Canon Law for that reason will not understand as a thing merely Spiritual, but rather as a Temporal annexed to what is Spiritual: Quod à Supremis Pontificibus proditum est, Laicos habere Jus Praesentandi Clericos Ordinariis: hoc singulari favore sustinetur, ut allectentur Laici, invitentur, & inducantur ad constructionem Ecclesiarum. Nec omni ex parte Jus Patronatus Spirituale censeri debet, sed Temporale potius Spirituali annexum. Gloss. in c. piae mentis, 16. q. 7. Coras. ad Sacerdot. mater, par. 1. cap. 2. Yet not Temporal in a Merchandable sense, unless the presenter and Presentee will run the hazard of perishing together; for prevention whereof, provision is made by that Solemn Oath enjoined by the Fortieth Canon of the Ecclesiastical Constitutions; whereof there was no need in former Ages less corrupt, when instead of selling Presentations they purchased Foundations; and instead of erecting Idol-Temples (for Covetousness is Idolatry) they Founded, Built, and Endowed Churches for the Worship of the True God. Patroni in jure Pontificio dicuntur, qui alicujus Ecclesiae extruendae, etc. Authores fuerunt, ideoque Praesentandi & Offerendi Clericum jus habent, etc. Acquirunt autem hoc jus, qui de Episcopi consensu vel fundant Ecclesiam, vel aedificant, vel ante Consecrationem dotant, ut non valde sit Obscurum, Jus Patronatus, etc. jus esse Praesentandi Clericum ad Ecclesiam Vacantem ex gratia ei Concessum, qui Consentiente Episcopo, vel Construxit, vel dotavit Ecclesiam. Corasius ibid. par. 4. cap. 6. And it is gratefully provided by the Canon Law, if a Patron, or his Posterity being Patrons, do fall to decay, the Incumbent of the Fruits of the Church by Compulsary censure of the Ordinary, according to that Law, is to be enforced to make Contribution to them: For which reason it is, that the Law holds Vtilitas to be one of the three fruits or effects of a Patronage, viz. Honos, Onus, Vtilitas.  
(2.) If two Patrons, both pretending to the same Church, present unto the Ordinary their Clerks respectively, who insist on their Admission, and the Bishop by admitting the one rejects the other, he that is rejected, at least his Patron, may have his Action against the Bishop, not in the Ecclesiastical, but Temporal Court, by a Quare Impedit, or the like. In such cases therefore the Bishop is wont to decree a Process commonly called Negotium de Jure Patronatus (that is) A day fixed and certain is appointed by the Bishop to sit in the Church that is void, and a Monition decreed to be served on the Patrons presenting, and the Clerks presented, then and there to be present, to see proceed in the said business according to Law; to which end a Citation issues to 
* 22 H. 6. 29. b. If they refuse, being duly Summoned to Appear, the Commissioners of the Bishop may proceed against the clergymen by sequestration, and the laymen by Ecclesiastical Censures.  Twelve persons, whereof six of the Clergy, and six of the Laity, all of the Neighbourhood of the said vacant Church, to be then and there also present by way of an Enquest, and on their Corporal Oaths to 
† It is an Inquest of Office in nature of a Writ De proprietate probanda, and doth not bind the parties Right and Title.  inquire on certain Articles, then ministered to them, touching the right of Presentation to the said Benefice. These Articles consist chief of these Four heads, viz. (1) Who last presented to the said Church when it was last void, as also for the last two or three times when it was void. (2) Whether the person or persons who last presented, or these last two or three times or turns, at the time and times of Vacancy of the said Church, did present in his or their own proper right and title. (3) Whether either of the Clerks now presented be known or suspected of any Notorious crime, or of heresy, Simony, Perjury, Adultery, or Drunkenness. (4) Whether either of the Clerks now presented hath given or promised, either by himself, or any other for him and in his name, or by or with his consent or knowledge, any money or other gratuity directly or indirectly, for obtaining of his Presentation to the said Benefice, to the Patron thereof, or to any other who presented the said Clerk, or caused him to be presented. On which Articles if it be found by the Verdict of the said Jury, that such or such of the said Patrons was in the possession of the Presentation at that time when the Church was last void, then is his Clerk to be Admitted, if there be no other legal impediment to hinder it, that is, nothing to affect him with, contained in the third or fourth last precedent Articles.  
(3.) If two Patrons, each pretending a right or title to the Presentation, shall present one and the same person severally to the Bishop to be Admitted and Instituted to the Church; the Bishop cannot Admit him generally, but must in his Admittance of the Incumbent, admit him Incumbent of the Presentation only of one of them: And if they make such several Presentations, claiming by several Titles, the Bishop is to direct his Writ de Jure Patronatus; for that in such case the Church is become Litigious; yet the Bishop is not to award the said Writ, but at the instance and request of the said parties. And here Q. at whose charge the said Writ of Jure Patronatus shall in this case be su●d forth, whether at the charge of the Bishop, or of the parties: for that the old Books (as the Reporter gives us to understand) do differ in this point. Mich. 8 Jac. C. B. in Danby and Linley's Case. Vid. 7 Ed. 4. Quare Imp. 100 34 H. 6. 41. 21 H 6. 43. and 22 H. 6. 28. It is supposed (and commonly practised) it is sued at the instance and cost of one of the parties, or of both if they join. 35 H. 6. 18. b. 1. 9 a. 34 H. 6. 12. a. Hob. 317. 34 H. 6. 38. 5 H. 7. 22. a.  
(4.) Suppose that a Parson be deprived by the Ordinary, or reads not his Articles: In which cases the Church is void, yet notice must be given to the true Patron for that time, or else the Lapse incurs not (which is inconvenient for the Church, and a prejudice to the Ordinary) for how shall he in this case assure himself of a sufficient Notice? For if he give notice to him that is not Patron, for this very turn, his Notice is vain, and the true Patron perhaps knows not of the Deprivation, or if he knows it, needs not Present without notice given him. In this Case Sir H. Hobard Chief Justice holds, That his way is to award a Jure Patr●natus, with solemn Premonitions Quorum Interest; And then enquiry being made who is Patron, to give him Notice, and if he Presents not within six months, than the Ordinary may Collate, though that shall not bind the very Patron, yet it shall excuse the Bishop from Disturbance upon Special matter shown: But if the other supposed Patron present, and the six months' incur, Quaere if the true Patron be bound, since there was no Notice given him. And the Opinion of Hob. is, that though without Notice the Patron is not bound by the Lapse; yet that is nothing to save the Usurpation of another pretended Patron, who is not subject to give Notice 
a Pasch. 17 Jac. C. B. Rot. 877. Case Sir W. Elvis vers. Archbishop of York, and others. Hob. Rep. . Also if a Suit be depending between Two parties touching the right of Presentation, and it be not determined within Six months, the Bishop may present by Lapse, and he that hath right to Present, shall recover his damages, as by the Statute appears 
b St. Westm. 2. cap. 5. Terms of Law, verb. Quare Impedit. .  
(5.) The Patron or he that hath right to Present to a Benefice, is sometimes termed Adowe alias avow (Advocatus) 
c 25 Ed. 3. 5. . There is also Advowe Paramount, or the highest Patron, which is meant only of the King. Advocatus est ad quem pertinet jus Advocationis alicujus Ecclesiae, ut ad Ecclesiam, Nomine proprio non alieno, possit Praesentare 
d Fle●a, l. 5. cap. 14. F. N. B. fo. 39 . Britton saith, That avow is he to whom the right of Advowson of any Church appertains; so that he may present thereunto in his own Name: And is called avow, for a difference from those that sometime present in another man's Name, as a Guardian that presents in the name of his Ward; and for a difference also from those who have the Lands to which an Advowson appertains, but only for term of their lives or of years, by Intrusion or Disseism 
e Britton, cap. 29. .  
(6.) A Church may become Litigious both before, and by, and after a Jure Patronatus: Before, as by a plurality of Presentations: By, as when in case of plurality of Presentations upon a plural Jure Patronatus the one Jury gives a Verdict for the Title of one Patron, the other for the Title of the other Patron: 
41 H. 6. 45. a.  After, as when after a Jure Patronatus awarded, and Verdict thereupon given for one of the parties, a third person presents before Admittance of his Clerk for whom the Verdict was given. Upon a plural Jure Patronatus if one Jury give a Verdict for the Title of the one, the other for the Title of the other Patron, it is conceived in that case the Ordinary may refuse the Clerks of both Patrons, and suffer the Church to Lapse 
f Calais Re●d. 3. 21 H. 6 44. ●. Sed Quaere. 21 H. 6. per Newton and Paston. . And where a Third person presents after a Verdict, as aforesaid, but before the Clerk be Admitted, whereby the Church becomes Litigious de Novo, in that case the Bishop may award a new Jure Patronatus. Also if the Bishop doubt the patron's Title that presents, he may (as some conceive) award a Jure Patronatus albeit the Church be not Litigious 
g 21 H. 6. 44. callis' Reading 29. Hob. 319. ; which is a safe way for prevention of any surprise to the rightful Patron or other Pretenders; in which case if the Right of Patronage be found for another that had not before presented, his Clerk may be admitted by the Ordinary 
h 34 H. 6. 40. ●. ; who is no Disturber if he admit a Clerk that is presented before the Church becomes Litigious by a Second presentation 
i Hob. 317. ; for by the Verdict of the Jury aforesaid, he is sufficiently warranted to admit and institute the Clerk for whose Patrons Title the Verdict is given, in doing whereof he is no Disturber, albeit the other Patron, against whom the Verdict is given, should after recover in a Quare Impedit. And after a Verdict in a Jure Patronatus found for a Patron, he ought to renew his Request to the Ordinary for the admission of his Clerk; otherwise the Bishop may Collate, in case the Church Lapse after Six months.  
(7.) Sir John Arundel and his Wife brought a Quare Impedit against the Bishop of Gloucester and others, who pleaded in Bar, that William Sturton was seized of a manor to which the Advowson was appendent, and bound himself in a Statute-Merchant of 200 l. to one Long, and the Statute was extended, and conveyed the interest of the Statute to one of the Defendants, and then the Church became void: And by the Court the Advowson may be extended, and if it become void during the Conusees Estate, the Conusee may present 
k Mich. 32 & 33 Eliz. Sir J●. Arundell's Case. post Cas. Kent vers. Wichall, in Owen's Rep. .  
(8.) In Beverley's Case against the Archbishop of Canterbury, where the question was, Whether the Queen might take her turn to Present, in regard she took not her turn when the first Lapse happened immediately at the first Avoidance, by reason of the Incumbents having Two Benefices, within the Stat. of 21 H. 8. And all the Justices of the Common Pleas after long and serious debate, did Resolve, That the Queen shall not now have her Presentation, but the Patron, because the Queen hath such Presentment by Lapse as the Bishop had, and no other, and could Present but to the present avoidance then void: And although Nullum tempus occurrit Regi, yet we must distinguish it thus, for where the King is limited to a time certain, or to that which in itself is Transitory, there the King is to do it within the time limited, or in that time wherein the thing to be done hath Essence or Consistence, or while it remaineth, for otherwise he may not do it afterwards: So where a Second presentment is granted to the King, and he does not Present, he may not after 
l Beverley against the Archbishop of Canterbury. Owen's Rep. .  
(9) During a Vacancy the Freehold of the Glebe is in Abeiance 
m Littl. 144. , and not in the Patron 
n 8 H. 6. 24. b. ; who can take no benefit thereby in that time 
o Ibid. , nor can he have any Action for Trespass done thereon in the time of such Vacancy 
p 11 H. 6. 4. b. : Yet if a man hath an Annuity out of a Parsonage, and he in the Vacancy thereof Release to the Patron, it shall extinguish the Annuity. 21 H. 7. 41 Co. 5. Ford, 81. b.  
(10.) If a Church becomes void by the death of the Incumbent, or otherwise, and the Patron within Six months bring a Quare Impedit against the Bishop, and then Six months pass without any Clerk presented by the Patron to the Bishop; in that case the Lapse shall incur notwithstanding the pendency of the Writ, for it is not reasonable that the Ordinary should lose his Title of Lapse without any wrong done by him, by a fraudulent Action brought without cause by the Patron, and whereby the Ordinary is put to expenses without cause, and by such fraudulent means the Patron might keep the Church perpetually void. Hob. Rep. 270. & Roll. Abr. verb. Presentment, lit. X. pag. 366.  
(11.) The Jus Appellandi in defect of Justice, and the Jus Praesentandi in case of Lapse, seem to have a parallel resemblance with one another in their gradations; for as they both primarily meet in the Ordinary: so they both pass from him to the Metropolitan, and from him to the King, not only as supreme Ordinary, but also as Patron Paramount of all the bishoprics in England; which, as they were originally Donative per Annulum & Baculum: so now since King John's time, they are by Canonical Election; for King John by his Charter dated the 15th of January in the 16th year of his Reign, granted this privilege to the Church in these words, viz. Quod qualiscunque Consuetudo temporibus Praedecessorum nostrorum hactenus in Ecclesia Anglicana fuerit observata, & quicquid juris nobis hactenus Vindicaverimus, de caetero in universis & singulis Ecclesiis & Monasteriis, Cathedralibus & Conventualibus, totius Regni Angliae, Liberae sint in perpetuum Electiones quorumcunque Praelatorum, majorum & minorum; Salva Nobis & haeredibus nostris Custodia Ecclesiarum & Monasteriorum vacantium, quae ad nos pertinent. Promittimus etiam quod Nec impediemus nec impediri permittemus per Ministros nostros, nec procurabimus, quin in universis & singulis Monasteriis & Ecclesiis, postquam vacuerint Praelatur●●, quemcunque voluerint Libere sibi praeficiant Electores Pastorum, petita tamen à Nobis prius & haeredibus nostris Licentia Eligendi, quam non denegabimus nec differemus. Et similiter, post celebratam Electionem, noster requiratur Assensus, quem non denegabimus, nisi adversus eandem Rationale proposuerimus, & legitime probaverimus propter quod non debemus consentire, etc. Vid. Davis Rep. in the case of Praemunire, ●o. 92, 93.   

CHAP. XVII.  
Of Parsons and Parsonages.  

1. Parson, what he is in the intendment of Law.  
2. What is meant by Parson imparsonee.  
3. The Freehold of Church and Glebe is in the Parson, what interest he hath in the churchyard, and the Trees there growing; and whether he hath any in the Bells or Ornaments of the Church?  
4. How he must be qualified that will be a Parson; and who is rendered incapable of being such.  
5. Whether the Parson may demand any thing by custom, upon the Burial of one who dying in his Parish, was Buried elsewhere.  
6. The words Parsonage, Church, Rectory, frequently used Synonymously; Pensions of Ecclesiastical cognizance.  
7. A Case in Law touching a parson's Obligation for Resignation.  
8. Whether a parson's acceptance of Rent makes his Predecessor's Lease good.  
9 Prohibition to the High Commissioners of York, touching Articles exhibited before them against a Parson.  
10. A Case in Law touching the Confirmation of a Lease made by a Parson.  
11. Other Cases at the Common Law; relating to Parsons.  
12. The Patron nothing to do in the Church during Plenarty.  
13. By what words a Resignation of a Parsonage may be, or not.  
14. Whether the Resignation of a Donative may be to the Donor, or how it may be departed with?  
15. Whether the Parson may appoint the Parish Clerk?  
16. A Bishop, Archdeacon, and Parson, are Spiritual Corporations and have a double Capacity.  
17. All differences between Parsons and Vicars concerning the endowment of the Church, are cognizable in the Ecclesiastical Court.  
18. Privileges of the Clergy.   
(1.) THere is Parson [Persona] and Parson imparsonee [Persona impersonata:] Parson properly signifies the Rector of a Parochial Church; because during the time of his Incumbency he represents the Church, and in the eye of the Law sustains the person thereof, as well in Suing, as in being sued in any Action touching the same 
a Vid. Flet●. lib. 9 cap. 18. . Originally the Parson was he that had the charge of a Parochial Church, and was called the Rector of that Church; but it seems he is most properly so called, that hath a Parsonage where there is a Vicarage Endowed. And yet it is supposed that Persona is the Patron, or in whom the Right of Patronage is, for that before the Lateran Council he had Right to the Tithes in regard of his having erected and endowed the Church which he had Founded. The Pastors of Parishes are called Rectors, unless the Praedial Tithes be Impropriated; and then they are called Vicars, Quasi vice fungentes Rectorum: and Curates are they who for certain Stipends assist such Rectors and Vicars, that have the care of more Churches than one.  
(2.) Parson Imparsonee, is he that as lawful Incumbent is in actual possession of a Church Parochial, and with whom the Church is full, be it Presentative or Impropriate 
b N. B. of Entries, verb. Aid in annuity. ; and seems also to be that person to whom the Benefice is given in the Patrons Right; for in some Books Persona impersonata is taken for the Rector of a Benefice Presentative and not Appropriated 
c Register Judicial. fo. 34. b. : Yet Dyer saith, That a Dean and Chapter are persons Imparsonees of a Benefice Appropriated to them 
d Dyer, fo. 40. nu. 72. ; and in another place plainly showeth. That Persona impersonata is he that is Inducted and in possession of a Benefice 
e Idem, fo. 221. nu. 19 . So that persona seems to be termed impersonata, only in respect of the possession which he hath of the Benefice or Rectory, be it Appropriate or otherwise by the Act of another 
f Vid. Co▪ on Litt. fo. 300. b. .  
(3.) The Parson hath a Right unto the possession of the Church and Glebe, having the Freehold in himself, and may receive the profits, Tithes, Oblations, Obventions, and Offerings to his own use, without the Patrons or Ordinaries consent, who without his consent and agreement can do nothing during his incumbency to charge the Church or his Successors. And not only is the Freehold of the Church in the Parson, but he hath also the Right of the churchyard and Glebe in him, whereof if he be put out of possession or disseised, he may have an Assize 
g Vid. 28 H. 6. 19 by Marcham. . Or if he be Ejected, he may have Trespass; and so may the Vicar have against a Stranger, if he be disseised of the churchyard, but not against the Parson himself 
h 13 R. 2. Fitzh. tit. Jurisdiction, 19 . For the Parson shall have an Assize or an Action of Trespass, of such things as are annexed unto the Church or Glebe, or for cutting down of the Trees, or doing of Trespass in the churchyard or Glebe, the Right and interest thereof being in the Parson 
i 11 H. 4. 12. & 17 H. 3. Prohib. 26. . But if the Bells in the Steeple, the Ornaments of the Church, or the like, be taken away, in that case the Action doth not belong to the Parson, but to the Churchwardens 
k 11 H. 4. 12. acc. . Notwithstanding the parson's Right and interest as aforesaid, yet he cannot cut down the Trees growing in the churchyard of his Parish, save for the Repair of the Church 
l Mich. 13 Jac. B. R. in Bellami●'s Case. Roll. Rep. By the Stat. of 3● El. 1. Parson's are prohibited from felling down Trees in the churchyard, save to repair the chancel or Body of the Church. . Or if a mere Stranger cut them down, no Suit can be thereon in the Spiritual Court for damages; for if Suit be there commenced in that Case for damages, no Consultation shall be 
m Ibid. . Nor can the Parson have Action for Seats in the Church taken away by a Stranger, because they are not fixed to the Freehold; but the Churchwarden may have Action in that case 
n 8 H. 7. 12. .  
(4.) No man can be a Parson until he be a Priest in Orders, which he cannot be until he hath attained the Age of 24 years; Consequently therefore he must be of that Age ere he can be a Parson 
o St. 13 El. ●. 12. ; and is commonly called (when Inducted into a Church) the Rector thereof, and shall be accounted Proprietor of the Tithe of the Parish whereto the Church belongs, if the contrary be not showed 
p Style's Register 327. . A man that is guilty of some Crime that is malum in se, as murder, Perjury, Forgery, or the like, though not convict thereof, yet if the Truth thereof be certainly known to the Ordinary, may be rejected by him from being P●rson of a Church, if thereunto presented by the Patron 
q Lindw. cap. Imprimis & infra. : Otherwise it is, in case he be guilty only of malum prohibitum, and not malum in se, as to play at unlawful Games, to frequent Taverns and Alehouses, or the like 
r Co. 5 58. a. . Also the Son is by the Canons rendered incapable of succeeding his Father in his Parsonage 
s Lindw. ●. Cum à jure inhibitum, etc. ; And if a man presented to a Living be not in Orders, the Bishop may refuse him, but not for want of a Testimonial 
t Leon. 130. ; for if any person shall be Admitted, Instituted, and Inducted into any Living before he is in Holy Orders, his Admission, Institution, and Induction are void by the late Act of Uniformity 
u St. 14 Car. 2. cap. 4. ; whereby his Subscription, and thereof the Bishop's Certificate, also his Reading the 39 Articles of Religion in the same Parish-Church on some Sunday or the Lord's-day (tempore Divinorum) within two months' next after his Induction, the declaration of his unfeigned Assent and Consent thereunto, his Reading the Book of Common Prayer, or Service appointed for the Church that day, within two months' next after his Induction, with the declaration also of his Assent and Consent to all things therein contained, are required, otherwise the Church becomes void, and the Parson will be put to the proof of all the premises, in case ●e Sue the Parishioner refusing to pay his Tithe, if he shall insist thereon. The Statute of 13 El. cap. 12. Ordained, That the Articles agreed by the Archbishop and Bishops of both Provinces, and all the Clergy in the Convocation held at London, etc. shall be read by the Incumbent, otherwise he is ipso facto deprived. Or admitting all these Requisites have had their due performance, so that he is a complete Parson to all intents and purposes of Law whatever, yet he may not under pretence of this or that custom extend the Lines of his Parsonage beyond its due limits or bounds, out of an Avaricious design to advance the perquisites of his Parsonage.  
(5.) Edward Topsall Clerk, Parson of St. botolph's without Aldersgate, London, and the Churchwardens of the same, Libelled in the Ecclesiastical Court against Sir John Ferrer; and alleged, that there was a custom within the City of London, and specially within that Parish, That if any person, being Man or Woman, die within that Parish, and be carried out of the Parish to be Buried elsewhere, that in such case there ought to be paid to the Parson of this Parish, if he or she be buried elsewhere, in the Chancel so much, and to the Churchwardens so much, being the Sums that they alleged were by custom payable unto them, for such as were buried in their own Chancel; And then alleging, that the Wife of Sir John Ferrer died within the Parish, and was carried away and buried in the Chancel of another Church, and so demanded of him the said Sum. Whereupon, for Sir John Ferrer a Prohibition 
* Note, That in Prohibition it was Resolved, that the Six months for proof of the surmise, shall not be counted by 28 days to the Month, but according to the calendar. In Case Copley against Collins. Hob. Rep.  was prayed by sergeant Harris, and upon debate it was granted: For this custom is against Reason, That he that is no Parishioner, but may pass through the Parish, or lie in an inn for a night, should (if he then die) be forced to be Buried there, or to pay as if he were; and so upon the matter to pay twice for his Burial 
w Trin. 15 Jac. C. B. Ed. Topsall and others vers. F●rrers. Hob. Rep. .  
(6.) The words Parsonage, Church, and Rectory are frequently in the Law used Synonymously and promiscuously; but the word Advowson is another thing, and distinct from each of them: And as to some Parsonages there are certain Rents due and payable, so out of some Parsonages or Rectories there are issuing certain Rents or Pensions, which Pensions are not suable at the Common Law, but in the Ecclesiastical Court, as was said in Crocker and York's Case against Dormer, against whom they had a Recovery in a Writ of Entry in the Post, among other things of a yearly Rent or Pension of four Marks, issuing out of the Church or Rectory of F. In which Case it was agreed by Clench and Fenner, that a Pension issuing out of a Rectory is the same with the Rent; of which Popham seemed to make some doubt; for there being in that Case a Demand for Rent in the Disjunctive, viz. a Rent or Pension, he moved that the greatest difficulty in the Case was the Demand made in the Disjunctive, viz. of an Annual Rent or Pension; for if a Pension issuing out of a Rectory shall be said to be a thing merely Spiritual, and not to be demanded by the Common Law, or merely of another nature than the Rent itself, with which it is there conjoined by the word [or,] that than it is Erroneous 
x Pascls. 35 Eliz. Crocker and York verse. Dormer. in Poph. Rep. .  
(7. B. brought an Action of Debt against W. upon an Obligation of 600 l. the Condition was, That if W. Resign a Benefice upon Request, that then the Obligation should be void. And the Condition was Entered; the Defendant Demurred, and judgement in B. R. pro Querente. And upon Error brought, judgement was Affirmed in the Exchequer; for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force, as Leases made by Parsons of their Glebes, viz. per nonresidency: And it doth not appear by the Plea of the Defendant, that it was not an Obligation bona fide, which might be lawful; As if a Patron which hath a Son, which is not yet fit to be presented for default of Age, and he present another with an Agreement, that when his Son come to the Age of 24 years he shall Resign it, it is a good Obligation. And this Case, viz. an Obligation with Condition to Resign had been Adjudged good in the Case of one Jones, An. 8 Jac. And the Counsel said, That he who is presented to a Church is Married thereto, and it is like as if a man who hath married a Wife, should be bound to be divorced from her, or not cohabit with her, these Conditions are void. But these resemble not our Case 
y Babbington verse. Wood Hutt. Rep. .  
(8.) It was said in Johnson's Case, That if a Parson Leases his Rectory for years, or parcel of his Glebe, reserving a Rent, and dies, if his Successor accepts the Rent, that Acceptance does not make the Lease good; because by his death the Franktenement is in Abeyance, and in no Man. And also a Parson cannot Discontinue: And by consequence, That that he did without Livery, is determined by his death. And it is not like to the Case of an Abbot, Prior, or Tenant in Tail 
z Johnson's Case. Hetley's Rep. .  
(9) Hendon moved for Dr. Day, Vicar of Hallifax, That a Prohibition might be granted to the High Commissioners of York, for that, that these Articles by one Smith were exhibited against him, viz. 1. That he read the Holy Bible in an irreverent and undecent manner, to the scandal of the whole Congregation. 2. That he did not do his duty in Preaching; but against his Oath and the Ecclesiastical Canon, had neglected for sundry Mornings to Preach. 3. That he took the Cups and other Vessels of the Church, consecrated to holy use, and employed them in his own House, and put Barm in the Cups, that they were so polluted, that the Communicants of the Parish were loath to drink out of them. 4. That he did not observe the last Fast (Proclaimed upon the Wednesday) but on the Thursday, because it was an holiday. 5. That he retained one Stepheson in one of the chapels of Ease, who was a man of ill Life and Conversation, viz. an Adulterer and a Drunkard. 6. That he did not catechise according to the Parish-Canon: but only bought many of Dr. Wilkinson's Catechisms; for every of which he paid 2 d. and sold them to the Parishioners for 3 d. without any examination or instruction for their benefit. And that he, when any Commissions were directed to him, to compel any person in his Parish to do Penance, he exacted money of them, and so they were dismissed, without inflicting any penalty upon them, as their Censure was. And that he and his Servants used divers Menaces to his Parishioners, and that he abused himself, and disgraced his Function by divers base Labours, viz. He made Mortar, having a Leathern-Apron before him, and he himself took a Tithe-Pigg out of the Pigsty, and afterwards he himself gelded it. And when he had divers Presents sent him, as by some Flesh, by some Fish, and by others Ale, he did not spend it in the invitation of his Friends and Neighbours, or give it to the Poor; but sold the Flesh to Butchers, and the Ale to alewives. And that he commanded his Curate to Marry a Couple in a private House, without any licence: And that he suffered divers to Preach, which peradventure had not any licence, and which were suspected persons, and of evil Life. It was said by Henden, That they cannot by the Statute of 1 Eliz. cap. 1. meddle with such matters of such a nature, but only examine Heresies, and not things of that nature; and that the High Commissioners at Lambeth certified to them, that they could not proceed in such things, and advised them to dismiss it; but they would not desist. And the Judges (Richardson being absent) granted a Prohibition, if cause were not shown to the contrary 
a Smith against Dr. Day. Hetley's Rep. .  
(10.) A Parson makes a Lease for 21 years, the Patron and Ordinary confirm his Estate for 7 years; the Parson dies: The Question is, Whether that Confirmation made the Lease good for 21 years, or but 7 years. And it seemed to Hutton, That the Lease was Confirmed but for 7 years. But Richardson was of the contrary Opinion, and took a difference, where they Confirm the Estate, and where they Confirm the Land for 7 years; That Confirmation confirms all his Estate: But where they confirm the Lease for 7 years, That Confirmation shall not enure but according to the Confirmation. And that difference was agreed by Crook, and all the sergeants at the Barr. And afterwards Hutton said, That that was a good Cause to be considered, and to be moved again 
b Tomlinson's Case. Hetl. Rep. .  
(11.) In a Replevin: And the Title was by Lease made by a Parson; And the Avowry was, That A. was seized of the Rectory of H. and made the Lease, without showing that he was Parson. And by the Court, That that should have been a good Exception, if it had not been said in the Avowry moreover, That A. was seized in ju●e Ecclesiae, which supplies all 
c Bold against Waters. Noy's Rep. .  
(12.) During the time of the Parson, the Patron hath nothing to do in the Church 
d 11 H. 64. b. . And therefore if the Patron grant a Rent by Fine out of the Church, the Church being then full, and afterwards the Incumbent dies, that charge shall not bind the Successor, for that the Parson and the Ordinary were no parties to it 
e 38 E. 3. 4. .  
(13.) If a Parson would Resign, the word [Resignare] is not it seems the only proper word in the Law for Resignation, but [Renunciare, Cedere, & Demittere] are the usual words or terms of Resignation 
f D. 13 El. 294 b. The cognisances of Resignation properly belongs to the Ecclesiastical Court. Mich. 10 Jac. B. Manknol● 's Case, per Cur, Roll. Abr. foe 294. . Yet if a Prebend doth give, grant, yield, and confirm his Prebendary and the Possessions thereunto belonging unto the Ordinary, To have and to hold to him and his Successors in Fee, subjecting and submitting to him Omnia jura by reason thereof qualitercunque acquisita; these words it seems are sufficient and amount to a Resignation, albeit the proper words are not therein 
g Ibid. : Which Resignation ought to be made to the Immediate Ordinary, and not to the Mediate; for which reason a Prebend may not Resign to the King, for that although he is supreme Ordinary, yet he is not the Immediate Ordinary, and he is not bound to give Notice to the Patron, as the Ordinary aught, nor of himself can Collate, but is to present to the Ordinary 
h Ibid. & Roll. Abr. ver. Presentment, lit. E. pag. 358. .  
(14.) In Trespass: The Case was, 
Hill. 2 Jac. B. R. Fairchild and Gayer's Case. Cro. par. 2. ) The Defendant being Incumbent of the Church of B. (M. and G. having the Donation thereof) made an Instrument, whereby Concessit & Resignavit to M. & omnibus ad quos in hac parte pertinet ad acceptandam Ecclesiam suam de B; and thereupon the two parties gave it to the Plaintiff, who being disturbed by the Defendant brought Trespass. The Question was, whether a Resignation of a Donative could be to the Donor, or how it might be departed with. Resolved (1) That this being a Donative, begun only by the Foundation and Erection of the Donor; he hath the sole Visitation, and the Ordinary hath nothing to do therewith; and as the Parson comes in by the Donor, so he may restore it to him; and although the Presentee, when he is in, hath the Freehold, yet he may revest it by his Resignation, without any other Ceremony, and the Ordinary hath nothing to do with it: For Admission and Institution are not necessary in case of a Donative. (2) Resolved, That the Resignation to one of the parties is good, for it doth enure to both as a Surrender shall do. (3) Resolved, That although the Resignation was the Ecclesia, yet it shall extend to all the Possessions.  
(15.) At a Synod in 44 Ed. 3. a Canon was made, That the Parson of every Church in England shall appoint the Parish-Clerk. And at another Synod held in An. 1603. a Canon was made to the same effect; and yet it doth not take away the custom where the Parishioners or Churchwardens have used to appoint the Clerk, because that is Temporal, which cannot be altered by a Canon 
i M. 24 Jac. B. R. Walpole & Gale, per Cur. & Roll. Abridg. ver. Prerogative, lit. Y. . If the Clerk of a Parish in London hath used time out of mind to be chosen by the Vestry, and afterwards Admitted and Sworn before the Archdeacon, and he refuse to Swear such Clerk so Elect, but Admits another chosen by the Parson: In this Case a Writ may be awarded, commanding him to Swear the Clerk chosen by the Vestry. 22 Jac. Walpool's Case. The like Writ was granted for the Clerk of the Parish of St. foster's, London. Mich. 16 Car. B. R. between Orme and Pemberton 
k Roll. ib. lit. L. . The Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and Election of their Parish-Clerk, and the Parson of a Parish by force of a Canon, upon avoidance of the place of the Parish-Clerk elected one to the Office: The Parishioners by force of their custom elected C. the Parson, 
Pasch. 8 Jac. C. B. Gaudy verse. Dr. Newman. Brownl. Rep. par. 2  supposing this Election to be Irregular, for that it was against the Canon, Sued C. before Dr. Newman Chancellor of Canterbury, and the said C. was by Sentence deprived of the Clerkship of the Parish, and another Clerk of the Parish Admitted. C. moved for a Prohibition, and had it granted by all the Court; for it was held, That a Parish-Clerk is a mere layman, and aught to be deprived by them that put him in, and no others; and the Canon which willeth that the Parson shall have Election of the Parish-Clerk, is merely void to take away the custom, that any person had to Elect him. Vid. Stat. 25 H. 8. That a Canon against Common Law, confounding the Royal Prerogative of the King, or Law of God, is void; and custom of the Realm cannot be taken away but by Act of Parliament, vid. 21 Ed. 4. 44. And it was Resolved, That if the Parish-Clerk misdemean himself in his Office, or in the Church, he may be Sentenced for that in the Ecclesiastical Court to Excommunication, but not to Deprivation: And afterwards a Prohibition was granted by all the Court; and held also, That a Prohibition lieth as well after Sentence, in this case as before. And in Jermin's Case, Whereas the Churchwardens and Parishioners of K. surmised they had a custom to place a Clerk there by the Election of the Vestry: 
Trin. 21 Jac. B. R. Jermin's Case. Cro. par. 2.  the Parson sued them in the Ecclesiastical Court, to have his Clerk placed there, according to a late Canon made: It was the Opinion of the Court, that it was a good custom, and that the Canon could not take it away; wherefore a Prohibition was granted.  
(16.) A Bishop, Archdeacon, Parson, are Spiritual Corporations at the Common Law; for the Parson (and this is meant also of the others) hath two Capacities 
l 40 E. 3. 17. Br. Dean, etc. 2. 14 H. 8. 30. b. , The one to take to him and his Heirs; the other to him and his Successors, and in that respect he is seized jure Ecclesiae. If J. S. be Parson of D. and Land be granted to J. S. Parson and his Successors, and to J. S. Clerk and his Heirs, in this case he is Tenant in Common with himself 
m 14 H. 8. ibid. Finch, Nomoternia, p. 138. .  
(17.) Note, That it was agreed in Bushie's Case, That if a Parsonage be Impropriate, and the Vicarage be endowed, and difference be between the Parson and the Vicar concerning the Endowment, that shall be tried by the Ordinary, for the Persons and the Cause are both Spiritual: And there the Vicar sues the Parson for Tithes, and suggests the manner of Tithing, and prays a Prohibition, and it was granted, 
Bushie's Case. Brownl. par. 2.  and after upon solemn Argument Consultation was granted, insomuch that the manner of Tithing did not come in question, but the Endowment of the Vicarage only; for that is the elder Brother, as the Lord Coke said: This was cited to be Adjudged by Coke. Also there is much difference between prebend's and Parsons; 
Watkinson and Man's Case. Cro. par. 1.  for it was Adjudged in Watkinson and Man's Case, That a Lease made by a Prebend is good by the Statute of 32 H. 8. for he is not excepted, but only Parsons and Vicars; and so it was said it had been Adjudged in Doctor Dale's Case.  
(18.) It will not be denied, but that the Clergy of England have had in all Ages certain privileges, which the Laity never pretended to: To which purpose there have been Laws Enacted, and Cases Ruled by persons learned in the Laws. In An. 22 H. 8. cap. 5. it is Enacted, That the decayed Bridges in every County, where it cannot be known who in right aught to repair the same, shall be repaired by the Inhabitants of the said County, Town Corporate, or Riding where the Bridge is, by the Assessment of the Justices of Peace, who may appoint Collectors to levy the same by Distress. Now the Question is, Whether the Parsons and the Vicars may be charged by the general word of the Inhabitants, and Distress taken on their Spiritual live? In order to a Resolution of this Question, it must be premised, That it is most evident, that the Clergy are by the Common Law of this Kingdom a divided Estate both for their Persons and Spiritual promotions from the Laity of this landlord. (1) For their Persons, Fitz. N. B. foe 175. That Clerks shall not be chosen bailiffs or Beadles for the Lands in their possessions, although the Land before it came to the hands of the Clerk, was charged therewith by tenure. (2) A Clerk arraigned before a Temporal Judge for Felony, may plead the Jurisdiction of the Court; The clergymen, by reason of their Resiance, are not bound to the Leet; nor to follow Hugh and Cry. (3) That their Spiritual live are also discharged from the general charge of this Realms Laity, appears by the Register, fo. 260. & F. N. B. fo. 227. That Spiritual persons shall not be charged to pay Toll, Pontage, or Murage, but may discharge themselves by Writ. Also the Sheriff, who by the Law is the King's general Officer to serve Processes in every County, may not intermeddle with the Clergy in respect of their Spiritual promotions, but return Quod Clericus est Beneficiatus in Episcoparu, non habet Laicum foedum in baliva mea; and then the Process must be to the Bishop, as appears 34 H. 6. & 21 H. 6. This privilege is confirmed to them by Magna Charta, and divers Grants and Statutes, viz. Articulis Cleri, 9 Ed. 2. cap. 9 Likewise no Distress shall be taken in the Ancient Donations of the Church. The like Grant is made unto them by King Ed. 1. 24. Protestation 2. That the Sheriff or Minister of the King shall not meddle with the Goods, Chattels, or Carriages of the Clergy; and in Purveyors, 12. An. 14 Ed. 3. there is a Statute, that Purveyors shall not meddle with the Clergy, etc. Ed. 1. cap. 1. 1 R. 2. cap. 2. 1 H. 4. cap. 3. Statute Spiritualties 2. Privileges, Grants, Immunities of the Clergy are confirmed. So that it appears both by the Common Law and the Statutes, that the Clergy are not to be burdened in the general charges with the Laity of this Realm, neither to be troubled or encumbered, unless they be especially named and expressly charged by some Statute. And divers Statutes heretofore expressing themselves with the like general words, have never been expounded to extend to the Clergy, as by the usage of them appears by the Statute of Winton. An. 13 Eliz. 1. Again, the people dwelling in a Hundred where any Robbery is committed, shall either bring forth the Felon, or agree with him that is rob, yet hath it never been taken, that Parsons and Vicars should be Contributors thereunto; yet the words [Gentes demorantes] viz. the People dwelling, are as general words as [Inhabitants]. In the same Statute there are the like general words [Watching, etc.] yet the Clergy thereby are never charged. Also the Statute made for the highways, An. 2 & 3. P. & M. chargeth every householder; yet this general [householder] hath never been taken by usage to charge the Clergy, viz. the Parson or Vicar. Fitz. in his Nat. Bre. fol. 131. saith, that a Clerk being bound in a Statute-Merchant, shall not be taken by his Body: And the Writ founded upon the Statute-Staple, 27 Ed. 3. cap. 9 hath this special Proviso, Si Laicus Sit, capias. Also the Statute whereupon this Writ is founded, is general, and no Exception made at the Clergy. And 33 H. 8. cap. 2. there is a Statute that chargeth all Resiants within any County● where there is no Goal, to be Taxed by the Justices for the Building of one, yet have the Clergy never been charged by reason of these general words [Resiants, etc.] 1 Ed. 1. 18 Ed. 3. 4. 1 R. 2. 1. For these Reasons it is supposed, that the general words in the aforesaid Question will receive in Law the like Exposition, as the other said recited Statutes have done; And the Parsons and Vicars shall not thereby be charged, the rather for that the Statute sets down the Inhabitants of the County, where the certain persons that should do it, cannot be known, which is to be intended such Inhabitants as are chargeable to Pontage, which Spiritual persons are not, but excepted, as aforesaid.   

CHAP. XVIII.  
Of Vicars, Vicarages, and Benefices.  

1. The Vicar and Vicarage described according to Law.  
2. What difference between Vicarage and Parsonage; their several Rights and Interests respectively.  
3. Whether a Vicarage Endowed may be Appropriated, and how?  
4. The Chaplain of the Vicar of Hallifax his Case for his Salary.  
5. Vicar's may Sue in the Ecclesiastical Courts for Pensions.  
6. How a Vicarage may be created.  
7. The Resolution of Court touching the Vicar's Tithes, in reference to the Parson's Glebe.  
8. Cases in Law touching the Parsons and the Vicar's Tithes, where Composition or Prescription is in the Case.  
9 Who is Patron of the Vicarage, whether the Parson or the Patron?  
10. In what case the Vicar may Sue in the Ecclesiastical Court for an addition or increase of Maintenance.  
11. In what case a Vicarage shall determine; and what shall be an union of Parsonage and Vicarage.  
12. Benefice how defined by the Canon Law, with the Reasons of that definition.  
13. Benefices Ecclesiastical extend to Ecclesiastical Dignities by the Canon Law, but not so within the Statute of 21 H. 8.  
14. Of what an Ecclesiastical Benefices consists according to the Canonists.  
15. Cautionary Laws relating to Benefices; by what marks or signs an Ecclesiastical Benefice is known at the Canon Law.  
16. The common distinction of Ecclesiastical Benefices at the Common Law.  
17. A Case in Law touching a Vicarage, whether Dissolved, or not?  
18. Vicarages of Two sorts, how compared to a Commendam.   
(1.) VICAR is he who hath that Spiritual Living called a Vicarage, being no other than a certain part or portion of a Parsonage, allowed to the Minister for his Maintenance, introduced at that time when Impropriations first began; both which live as they are commonly called the Church: 
The Parson, Patron and Ordinary may create a Vicarage. 8 R. 2. annuity 53. Omnis Vicaria est Ecclesia, per Coke, in the King's Case against Zakar. Bulstr. par. 3.  so both such as serve in them, are called the Patron's Clerks. The Vicar is usually appointed and allowed to serve the Cure, by him who hath the Impropriation of the Parochial Tithes; for at the Original of such Impropriations a certain portion of the Parsonage was allotted and set apart from the rest to maintain the Vicar, who was to serve the Cure 
a Plow. 495. ; So that now the Priest of a Parochial Church, where the Predial Tithes are Impropriated, is called the Vicar, h. e. vice Rectoris. And it seems Anciently they did sometimes style themselves Perpetual Vicars, because every Vicarage, Corporation-like, hath a constant Succession.  
(2.) A Parsonage and a Vicarage (as appears in Britton and Wade's Case) are two distinct Benefices, and both have Curam animarum, the Parson habitualiter, the Vicar actualiter; and although the Vicarage be Spiritual, yet the Corporation is Temporal, which the Pope could not dissolve 
b Mich. 16 Jac. B. R. Britton and Wade's Case. Cro. 2. par. 516, 517, 518. : And in the Case between Parry and Banks, it was Resolved, That after the Statute of 31 H. 8. which made Parsonages Lay-Fees, the Ordinary could not dissolve a Vicarage, when the Parsonage is in a Temporal hand; for that were to destroy the Cure 
c 12 Jac. in the Excheq. Parry and Bank's Case. Hugh. Abr. verb. Appropriations. . Vicarages being originally endowed out of Parsonages, the Vicar was to have aid of the Parson, if he were impleaded for any thing touching the Vicarage, and the Parson was subject to every charge of the Vicarage 
d 31 H. 6. 13. by Yeluerton. . And anciently the Vicar was not held as Tenant of the Freehold of the Glebe of the Vicarage 
e 8 Ass. 3●. 15 Ass. 8. acc. , but the Freehold thereof was in the Parson, and the Vicar could not maintain an Assize in his own Name 
f 12 E 3. Fitzh. tit. Brief, 256. . But now it seems the Freehold of the Glebe of the Vicarage is in the Vicar himself, and not in the Parson, for that the Possessions of the Vicar and Parson are severed, and each of them shall have several Writs concerning their respective Rights, and shall not join in one Writ 
g Parson's Law, cap. 23. : and the Vicar shall have and maintain a Writ of Juris Vtrum against the Parson, who is the Patron of the Globe of the Vicarage, for the same Glebe 
h Ibid. . This Vicarage being a certain portion of a Parsonage allowed to the Vicar for his Maintenance as aforesaid, is in some places a sum of Money certain, in others a part of the Tithes in kind, commonly the smaller Tithes, and in some places a part of the great Tithes also: And Vicarage-Lands occupied by the Vicar, do in some places pay no Tithe to the Parson 
i Cro. J●r. 60. Cro. 2. 44. Broo. Disme● 10. .  
(3.) In Ward's Case it was said by Montague. That a Vicarage endowed might be Appropriated, but not to the Parson, to which Haughton and Doderidge agreed, 31 H. 6. Fitz. tit. Indicavit, is, that such a Vicarage may be dissolved: An Appropriation may be by the King sole where he is Patron, but there is no Book that it might be by the Patron sole. Grindon's Case in Plowden, and 17 E. 3. 39 an Appropriation cannot be without the King's licence. In that case it was agreed, That Tithe-Lamb and Wool was included within small Tithes 
k Trin. 16 〈◊〉 B. R. Nicholas— and W. Ward's Case. Poph. Rep. , which Tithe belongs to the Vicar.  
(4.) A Chaplain that was under the Vicar of Hallifax, libels against him in the Ecclesiastical Court for his Salary. And he prescribes, That the Vicar ought to pay the Chaplain four pounds a year; and the Vicar prays a Prohibition, (1) for that he alleges, That the Chaplains were Eligible by himself; and because that Chaplain was not Elected by him, he is not Chaplain; but he is in of his own wrong, etc. (2) That Prescription for Salary was Triable at the Common Law. Yeluerton, The Salary is Spiritual as the Cure itself is Spiritual, for which it is to be paid. As the Case in Dyer, 58. Pl 4. But a Prohibition was granted, until it was determined to whom the Election appertained; and that now depends by Prohibition in this Court 
l Trin. 3 Car. C. B. The Vicar of Hathfax C●se. Hetley's Rep. .  
(5. 
Pension. ) G. Vicar Sues in the Ecclesiastical Court the Dean and Chapter of Wells, Parson of a Church, for a Pension, and they pray a Prohibition, and it was denied; For that Pension is a Spiritual thing, for which the Vicar may sue in the Spiritual Court 
m Goodwin verse. Dean and Chapter of Well. Noy's Rep. .  
(6.) The Parson, Patron, and Ordinary may Create a Vicarage and Endow it without the Assent of the King; but the Ordinary cannot Create a Vicarage without the patron's Assent. 16 E. 3. Quare Impedit, 145. And in or during the Vacancy, the Patron of a Parsonage and the Ordinary may Create a Vicarage. 8 R. 2. Annuity 53. per Belch. And before the Statutes of Dissolutions, a Parson Impropriate and the Ordinary might Create a Vicarage, for the Parson was Parson and Patron. Ibid. 
n rolls Abridg. verb. Vicarage. .  
(7.) It was Resolved per Curiam, That if a Vicar be endowed out of a Parsonage of all the white Tithes growing and renewing within the Parish on all the Land of the Parish; the Vicar shall not therefore have the Tithe of the Parson's Globe, for that is excepted; nor the Tithes of the Land, which at the time of the Endowment of the Vicarage was parcel of the Glebe, but since severed from the Glebe, for that at the time of the Endowment that Land was exempted out of the Endowment 
o Trin. 38 Eliz. B. R. Elen●o & Ma●ston. Rollib. verb. Vi●● Endowment. ●●3. .  
(8.) If there be a Composition made between the Parson and the Vicar, That the Parson shall have all the Tithe of Corn and Hay, and the Vicar the other Tithes, and afterwards the Parishioners sow certain Lands with Saffron, or the like, the Parson shall not have the Tithe of the Saffron, but the Vicar. By Coke so Adjudged 
p Trin 7 Jac. B. R. Roll. ib. nu. 4. . It hath als● been Resolved, It a Vicar be Endowed of the Small Tithes by Prescription, and afterwards the Land which had been Arable time out of mind, is converted from Arable, and there grow small Tithes, the Vicar shall have them, for his Endowment doth not go to the Land, but Minutis Decimis in every place within the Parish 
q Pasch. 38 Eliz. B. R. inter Bedingfield and Freak. . And if a Vicar be endowed of the third part of all the Tithes of a manor, he shall have Tithes as well of the Freehold as Copyhold, for all makes the manor 
r P. 38 El. B. R. Higham and Best. Adjudged. .  
(9) The Parson, and not the Patron of the Parsonage, of Common right is Patron of the Vicarage, for that it is derived out of the Parsonage. Dubitatur 17 E. 3. 51. b. Contra, 5 E. 2. Quare impedii, 165. per Pass. And if a Parson Appropriate create a Vicarage, he shall be Patron thereof. 17 E. 3. 51. he is both Parson and Patron 
s Roll. Abr. verb. Vicarage. . So likewise if there be a Vicar and a Parson Appropriate, the Ordinary and the Parson Appropriate may in time of vacation of the Vicarage reunite the Vicarage to the Parsonage 
t Mich. 7 Jac. B. R. Stafford's Case. .  
(10.) If there be a Parsonage Appropriate in an Ecclesiastical person, which never came to the King by the Statute of Monasteries, and a Vicarage Endowed be there also; and the Parson make a Lease of the Parsonage for Lives, according to the Statute of 32 H. 8. The Vicar may in that case sue in the Ecclesiastical Court against the Parson and his Lessee, who comes in by the Statute for Addition of Maintenance, and the Ordinary may well compel them to increase his Maintenance, for over all Appropriations such power of increasing the Vicar's Maintenance was reserved to the Ordinary, and the Lessee comes in subject to that charge 
u Hill. 9 Car. B. R. inter Hitchcock and Thornborough. .  
(11.) If the Vicarage be diminished, he shall have more of the Parsonage, if what remains be not sufficient. And if the Parsonage be impoverished and so decayed, that the Parsonage by itself, nor the Vicarage, have sufficient to sustain them, in that case the Vicarage shall determine and be restored to the Parsonage: And to this the Doctors also do accord 
w 31 H. 6●4. Roll. Abr. . It hath been also held, If a Parson Appropriate, who is Patron of the Vicarage of the same Church, by Agreement between him and the Ordinary, present the Vicar to that Parsonage, it is an union of the Parsonage and Vicarage; but if a Lessee of a Parsonage present the Vicar to the Parsonage, that shall not bind the Lessor 
x 44 E. 3. 33. b. 44 Ass. 37. . And if there be a Vicarage and Parsonage (and both void) and one present his Clerk as Parson, and he is so Inducted; that shall unite the Parsonage and Vicarage again 
y 11 H. 6. 33. . And in case that there be a Vicar Endowed who is Presentative, and also a Parson Presentative, it seems that the Parson hath not the Cure of Souls, but the Vicar 
z 5 E. ●. Quare impedit, 165. per Pass▪. .  
(12.) Benefice [Beneficium] according to a general acceptation may comprehend all Ecclesiastical live, be they Dignities or other, as in the Statute of 13 R. 2. where they are divided into Elective and Donative 
a 13 R. 2. St. 2. cap. 2. : But according to a more strict and proper acceptation, Duarenus seems to give it an apt definition, where he says, it is Res Ecclesiastica, quae Sacerdoti vel Clerico, ob Sacrum Ministerium utenda, in perpetuum concedatur 
b Duaren. de Benef. lib. 2. cap. 4. . [Res] because it is not the Ministry itself or the Office, but rather the profit thence arising that is the Benefice. [Ecclesiastica] because such profit is dedicated to God and his Church. [Sacerdoti, etc.] because where a thing Ecclesiastical is granted to laymen, it is not properly said to be a Benefice in this sense. [Ob Sacrum Ministerium] because as Dedicated to God, they are for the use of such as wait on his Altar. [Vtenda] because they have rather the usufruit thereof, than any Fee or Inheritance therein. [In perpetuum] because they are annexed to the Church for ever. Benefices with Cure of Souls seem most properly to be the Parsonages and Vicarages of Parochial Churches. Sir H. Hobart Chief Justice, in Colt and Glover's Case against the Bishop of Coventry and Lichfield, says, (speaking of the Statute of 21 H. 8. cap. 25.) That bishoprics are not within the Law under the word [Benefices]: So that if a Parson take a bishopric, it avoids not the Benefice by force of that Law of Pluralities, but by the Ancient Common Law, as it is holden, 11 H. 4. 60.  
(13.) This word Beneficium Ecclesiasticum extendeth not only to Churches Parochial and the Benefices thereof, but also to Dignities and other Ecclesiastical promotions; as to Deaneries, Archdeaconries, prebend's, etc. 
c Coke's Inst. par 3. cap. 71. . Lindw. de vit. & hon. Cle. c. Exterior. Sir Edw. Coke affirms, that it appears in the Books of their Law 
d 9 E. 3. 22. 29 E. 3. 44. 10 E. 3. 1. Regist 58. 21 H. 8. c. 13. vers. finem. , That Deaneries, Archdeaconries, prebend's, etc. are Benefices with Cure of Souls; but they are not comprehended under the Name of Benefices with Cure of Souls within the Statute of 21 H. 8. by reason of a special Proviso; which they had been, if no such Proviso had been added 
† Such in any Collegiate or Cathedral Church or any Parsonage with a Vicar Endowed, or any Benefice perpetually Impropriate, are no● Benefices with Cure of Souls within the Stat. of 21 H. 8. against Pluralities. , viz. Deans, archdeacon's, Chancellors, Treasurers, chanters, prebend's, or a Parson where there is a Vicar endowed 
e Coubi supra. .  
(14.) The Canonists do hold, That an Ecclesiastical Benefice consists of the Sacred Function, and of the Provinces thereunto belonging 
f ●an. si quis 〈…〉 q. 3. ; It is a distinct portion of Ecclesiastical Rights joined to the Spiritual Function, and until it be set apart, separate, and distinguished from Temporal Interests, it is not properly an Ecclesiastical Benefice; it is termed a portion, in that it includes Fruits, for a Benefice without Fruits cannot properly be so called.  
(15.) By the Jus Commune no man can at once and at the same time possess two Benefices with Cure of Souls, as incompatible. Tot. decis. Rotae 445. tit. de Praeb. in novis. Non datur Beneficium nisi propter Officium, he that performs not the one, aught to be deprived of the other. C. fin. de Rescript. in 6. Can. Eos. Cano. si quis Sacerdotum 81. distinct. All pecuniary Contracts, all mercenary Trading and Merchandizing for Benefices is to be abhorred; Ecclesiastical Benefices are of such a Spiritual Constitution, that they are not capable of being bought or sold; they fall not within the walk of human Commerce, but aught to be conferred gratis. And for nonresidence the Parson ought by the very Letter of the Law to be deprived of his Benefice and the Fruits thereof. c. Vni. de Cleric. non residen. in 6. Panormitan observes Six signs whereby an Ecclesiastical Benefice may be known: As (1) That according to the Jus Commune it aught to be bestowed by one who hath a right and power in him so to do, meaning the true Patron. (2) That he who doth give or bestow it, do reserve nothing thereof or therein for himself, directly or indirectly. (3) That it be given purely as a provision and maintenance for the Clerk. (4) That it hath ever something of Spiritualty annexed to it. (5) That in its nature it be perpetual. (6) That all manner of Contracts and Bargains concerning it be utterly rejected. Panorm. Consil. 47. Anchor. de Regul. prim. de reg. jur. in 6. q. & Decius in Rub. de Rescript.  
(16.) Whatever is enjoyed as a Benefice, is had and obtained either by way of Title, or Canonical Institution: Lindw. de cohabit. Cle. & Mulier. c. ut Clericalis. verb. Beneficiati. Ecclesiastical Benefices being commonly distinguished into Presentatives and Donatives; for a Parochial Church may be Donative, and exempt from all Ordinaries Jurisdiction. For if the King doth found a Church or Chappel, he may exempt the same from the Ordinaries Jurisdiction; in which case the Lord Chancellor and Lord Keeper shall Visit the same. 20 E. 3. Excommeng. 9 21 E. 3. 60. Parson's Law, cap. 28. Or if the King by his Letters Patents doth licence a Common person to Found a Church or Chappel, exempt from the Ordinaries Jurisdiction, the same shall be Visited by the Founder, and not by the Ordinary: 6 H. 7. 4. per Keble, 8 Ass. 29. F. N. B. 42. acc. And if such Clerk Donative be disturbed in his Incumbency, the Patron or Founder shall have a Quare impedit Praesentare, and declare upon the Special matter. But if a Patron of a Church Donative doth once present unto the Ordinary, and his Clerk be Admitted and Instituted, it is now become Presentable, and it shall never be Donative after, and then the Ordinary shall Visit the same, a proxy shall be paid, and Lapse shall incur to the Ordinary, as in all other Benefices presentable 
g Co. 1. par. Inst. 344. & 22 H. 6. 26. ; but so long as it remains Donative, it is without the Jurisdiction of the Ordinary. For a Donative is a Benefice merely given and collated by the Patron to a man without either Presentation to, or Institution by the Ordinary, or Induction by his Order 
h F. N. B. 35. E. . All bishoprics were anciently Donative by the King 
i Coke, l. 3. fol. 75. b. : and it is said, that there are certain Chauntries, which may be given by Letters Patents 
k F. N. B. fo. 33. c. & 42. b. . The Original Donatives in England is supposed to be from what Mr. Guinn mentions in the Preface of his Readins, viz. That as the King might anciently Found a Free chapel and exempt it from the Diocesan's Jurisdiction: So he might also by his Letters Patents licence a Common person to Found such a chapel, and to Ordain that it shall be Donative and not Presentable, and that the Chaplain shall be deprivable by the Founder and his Heirs, and not by the Bishop 
l cowel, Interpr. verb. Donative. . Whether such Donatives are properly Benefices Ecclesiastical may well admit of an Enquiry; for where Petr. Gregorius speaks of chapels Founded by laymen, not approved by the Diocesan, nor by him as it were spiritualised, he there says plainly, that they are not accounted Benefices, nor can they be conferred by the Bishop; but the Founders and their Heirs may give such chapels, if they so please, without the Bishop: Petr. Gregor. de Benefic. cap. 11. nu. 10. & Guid. Pap. Decis. 187. And Lindwood makes a very prolix question on the same reason, whether St. martin's Le Grand Lond. be Ecclesiasticum Beneficium, or not, Arguing it pro and con, but concludes in the Affirmative. Lindw. de Cohab. Cler. & Mul. cap. ut Clericalis.  
(17.) The Prior of D. was seized of the Advowson of the Church of N. 
Mich. 16 Jac. B. R. Britton and Wade's Case. Cro. par. 2.  appropriated to his Priory, and also of the Vicarage of N. endowed with small Tithes: The Appropriation and Endowment were both in the time of King John, and continued till the time of Hen. 6. when the Pope granted by his Bulls, That the Prior should appoint one of his Monks to officiate the Cure, who should be removed ad nutum Prioris: The point was, Whether the Vicarage was dissolved? Resolved (1) That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope could not make any Ordinance against that Statute, nor dispense by his Bulls with the Law, though they tend in Ordine ad Spiritualia. (2) There were no words that amount to a Dissolution, but the words only are, That the Vicar should be ad nutum Prioris. (3) The Parsonage and Vicarage are two distinct Benefices, and both have Curam animarum, the Parson habitualiter, and the Vicar actualiter; and although the Vicarage be Spiritual, yet the Corporation is Temporal, which the Pope cannot dissolve. (4) That in this case the Vicarage was not Dissolved: vid. 12 Jac. in the Exchequer, Parry and Bank's Case accordingly, there vouched.  
(18.) In the Canon Law there are two sorts of Vicarages, viz. Vicaria Temporalis and Vicaria Perpetua; 
En le Case de Commenda. Davis Rep. foe 83. ; The Vicaria Temporalis is compared to the Commenda Temporalis, for that such Temporal Vicar non habet Titulum, sed servit alieno nomine, & proprie Curam non habet: otherwise it is de Vicaris perpetua, quae est incompatibilis cum alio Beneficio, & habet Curam animarum, & talis Vicarius habet Titulum Canonicum; And a Quare Impedit lies against such perpetual Vicarage. F. N. B. 32. h. Regist. 31. a. And such a Vicar shall have a Juris Vtrum of Lands annexed or given to him in perpetuity, by the Statute of 14 Ed. 3. cap. 17. vid. 40 Ed. 3. 28. b. where Finchden said, That although it had been held, that a Vicar should not have Action of his Possessions against any person, yet that now the Law is changed in that point; and good reason, when he is endowed to him and his Successors in perpetuity.   

CHAP. XIX.  
Of Advowsons'.  

1. Advowson, what; and why so called.  
2. Advowsons' twofold.  
3. The great Antiquity of Advowsons'; the Original thereof.  
4. How it was in this Kingdom under the Saxons.  
5. The word Advowson applicable to other Ecclesiastical Foundations, as well as Churches; what the Famous Lindwood was.  
6. Advowsons' are Temporal, not Spiritual Inheritances.  
7. Reasons in Law, proving it to be a Temporal Inheritance.  
8. The difference between Advowsons' in Gross and appendent.  
9 How Advowson appendent may remain in the King as in Gross.  
10. By what words in a Grant an Advowson may pass or not.  
11. How an Advowson may be recontinued to the Rightful Patron, where he was ousted by usurpation.  
12. A Case in Law touching three Avoydances of a Church granted to one man.  
13. A Question in Law, whether upon such matter of Fact an Advowson remains appendent, or not?  
14. Advowsons' are devisable by Will, as well as grantable by Deed; what Actions may run in prejudice to the Advowson, or not.  
15. Whether an Advowson may be Assets; and under what words it may pass, or not?  
16. A Case in Law touching the Advowson of a Vicarage.  
17. In what case the Writ of Right of Advowson lies, or not.  
18. In what case the Crown shall be put to that Writ, or not, in case of usurpation by a Common person.  
19 A point in Law, whether the King or his Grantee shall have the Presentation, where the King having a manor with the Advowson appendent, the Church void, grants the manor with the Advowson.  
20. Of Advowsons' there are three Original Writs at the Common Law.  
21. The Advowson of a Vicarage, whether it belongs to the Patron or the Parson.  
22. Whether an Advowson may properly be said to be a Demesn; several matters of Law in reference to Advowsons' appendent and in Gross, in respect of the King and Common persons.  
23▪ Whether a Donative in the King's Gift may be the Cure of Soul?  
24. Whether by the Grant of a Vicarage the Advowson of the Vicarage shall pass; The grant of a next avoidance during an avoidance, is void.   
(1.) ADvowson is a kind of Reversionary right of Presentation to an Ecclesiastical Benefice in a man and his Heirs for ever. It is the same which the Canon Law understands by Jus Patronatus, or the Right which a man and his Heirs have to present their Clerk to the Ordinary, for a Parsonage or other Spiritual Benefice when it becomes void; and he in whom such Right resides, is called the Patron 
a Term. Law, verb, Advowson. Westm. 2. 13 Ed. 3. ●. . Jus Patronatus est Potestas Praesentandi aliquem Instituendum ad Beneficium Ecclesiae Simplex & vacans. Hostiens. de jure Patronat. Jus Patronatus est jus Honorificum, Onerosum, & Vtile. It is a Right to present to the Bishop or Ordinary a fit person, by him to be Admitted and Instituted into a Spiritual Benefice when it becomes void. The unlawful Possessor is the Usurper, against whom only lieth three Writs; one of the Right, as the Writ of Right of Advowson; and the other two of the Possession, As a Quare Impedit, and Darrein Presentment. And the Incumbent, as to his Right for his Rectory, hath the Writ of Juris Vtrum. And Advowson is not Haereditas corporata, as a message, Land, or Pasture, etc. But it is Haereditas Incorporata; as ways, Common, Piscaries, Courts, etc. which are and may be appendent to Inheritances Corporate. Advowson is a kind of Bastard-French word, sometimes called Advocatio Ecclesiae, either because the Patron thereof, claiming his J●s Patronatus therein, Advocate see in his own Right unto the same, eamque esse sui quasi Clientis Loco, or rather because the Patron in his own right Advocate alium to the Church being vacant, and presents him unto it Loco alterius, veluti Defuncti 
b Ske●o. d● verb. Sig. . Thence called sometimes Patron, sometimes Advocati; for they who originally obtained a Right to present to any Church, were either the Founders, or Builders, or Benefactors of the same. Decretal. c. 4. & 24. de jure Patronat. & Plow. 495. Dy. 48. Co. 1. 102. 4. 37. 6. 39 Litt. 119, 120. Patronum faciunt does, Aedificatio, Fundus. And although Advowsons' are now, as other Temporal Inheritances, grantable by Deed, and so in that respect cognizable at the Common Law; yet inasmuch as they are the same which the Canon Law calls Jus Patronatus, it cannot be denied, but that they are within the Ecclesiastical Jurisdiction; and therefore although the Patron may have his Action against the Ordinary in a Temporal Court by a Quare Impedit for rejecting his Clerk, yet the Ordinary may Decree a Process de Jure Patronatus in the case, to inquire by a mixed Jury of Ecclesiastical and laymen touching the said Advowson or Right of Patronage according to the Laws and customs of the Church.  
(2.) There is an usual difference taken, between Advocatio medietatis Ecclesiae, and Medietas Advocationis Ecclesiae: The former is where two Patrons be, and every of them having Right to Present a several Incumbent to the Bishop, to be Admitted into one and the same Church, (for divers may be several Parsons, and have Cure of Souls in one Parish) and such Advowson is alike in every of these Patrons, but every of their Presentments is to the moiety of the same Church; and therefore it is called Advocatio Medietatis Ecclesiae, or as the case may be, Advocatio Tertiae partis Ecclesiae, and the like. The latter, viz. Medietas Advocationis Ecclesiae, is after partition between Parceners; for although the Advowson be entire, amongst them, yet any of them being disturbed to present at his Turn, shall have the Writ of Medietate, or of Tertia, or of Quarta parte Advocationis Ecclesiae, as the Case is▪ And this difference is taken and observed only in the Writ of Right, which is altogether grounded upon the Right of Patronage. But in the Quare Impedit, which is only to recover damages, no such diversity is considered, but the Writ is general, Praesentare ad Ecclesiam. Doderidge, of Advowsons', Lect. 4. Of Advowsons' there are two sorts, The one that in Gross, which is Sole or Principal, not adhering or belonging to any manor, or to any part or parcel thereof, as of the Right thereof: The other appendent or Dependant, or depending on a manor, as appertaining or belonging thereto, which is by kitchen termed an Incident that may be separated from the Subject. Again, Sometimes the word Advowé or Avowé is also used for him who hath a Right in his own Name to present to a Benefice or other Ecclesiastical Living, 
25 Ed. 3. Stat. 5. c. Vnic.  where you have also (Advowe paramount) or the highest Patron, an Appellation peculiar to the King. So that this Advocatus is he to whom such jus advocationis alicujus Ecclesiae belongeth, as that he may Present to the Church in his own, but not in another's Name 
c ●leta, l. 3. c. 14. § 1. . And Fitzherbert useth it in the same signification 
d Fitzh. N. B. fo. 39 .  
(3.) Consonant to the practice at this day touching Advowsons', was the Emperor's novel, Decreed about 1100 years since, towards the end of the Fifth Century, to this purpose, That if any man shall erect an Oratory, and his desire be to Present a Clerk thereunto, by himself or his Heirs; if they furnish the Clerk with a Competency, and Nominate to the Bishop such as are worthy, they may be Ordained: But if those who are intimated by them be rejected by the Canons, as unworthy of the Ministry, then let it be the care of the most Reverend Diocesan of the place, to Present such as in his discretion he shall conceive better of 
e novel. . And Panormitan clearly interprets the Emperor's mind herein, and gives us the very meaning and original of the Patron's Right in this point of Advowsons'; he says, That this is Jus honorificum, onerosum, & utile, belonging to any in the Church, for that with the Diocesans consent he hath Founded, Built, and Endowed a Church, he hath given a piece of Ground▪ C. nobis, c. de jur. Patronat. and erected a Church thereon, 16. q. 7. c. Monasterium. and Endowed it, C. Piae mentis, ibid. and was therefore qualified with the Right of Patronage. And indeed the Diocesans consent herein is so requisite, that by the Canon Law it seems scarce feasible for a man to be a Patron without it, Si quis Ecclesiam cum assensu Dioecesani construxit, ex eo Jus Patronatus acquirit. Clement. c. Nobis de Jur. Patron. And when a Church so erected is by the Consecration thereof actually delivered up and made over (as it were) to God himself, it thenceforth ceases to be of any man's property, or of any Human Dominion; for Quod Divini Juris est, id nullius est in bonis: §. nullius, Inst. de Rer. Divis. And by what is Recorded in the Life of Bishop Vlrick, it should seem as if the Right of Presentation originally were in the Diocesan; for the Author there saith, That if any Erected a Church the Bishop consented, Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret, etc. And after the Endowment and Consecration thereof, the care of the Altar was committed by him to the Priest, and the Advowson firmly conveyed to the lawful Heir, by the putting on a Robe: Author. vitae▪ Udalrici, c. 7. p. 52. Edit. August. Vindel. 1595. But the Bishop's understanding this as a matter more of Care than of Power, as appears by these moderate expressions of Nominare, Praesentare, or Commendare, they were willing the Lay-Patron (for his better encouragement to such Pious works) should share with them in this privilege, which Panormitan calls Jus ●onorificum, yet so, as that this transference of the Bishops unto Lay-Patrons, should still remain under such a Limitation, as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination; And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason, if we consider what a paucity of public Churches there then were, insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field, as is reported of our own Ancestors in the Peregrination of Wilibald, Sic mos est Saxonicae gentis, etc. non Ecclesiam sed Sanctae Crucis Signum, etc. diurnae Orationis sedulitatem solent habere. Hodaeperic. Hierosolym. Wilibald. Extat ad Canisium, Tom. 4. Antiq. Lect. par. 2. pag. 486. Edit, Ingolst. 1603. Yea, and where perhaps some Churches were, many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alured's days, which were of so mean a structure, that frequently the wind entering per parietum rimulas, did blow out the Candles set before the relics; which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making lanterns Ex Lignis & Bovinis Cornibus.  
(4.) In the Infancy of the Christian Faith in this Island under the Saxons, several particular Lords of Grand Seignories (Regis ad Exemplum) erected particular Churches, and having Endowed them with Lands, reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same; And this they did in imitation of those Kings, who then Reigning here, erected Cathedrals, abbeys, Priories, Churches, etc. 
f Co. 2. par. Instit. Dod. Treatise of Advows. .  
(5.) An Advowson, being a right of Presentation (as aforesaid) reserved by a Founder to himself, his Heirs and Successors, is applicable to other Ecclesiastical Foundations, as well as those of Churches, as appears by the several Quare Impedits brought on several occasions 
g As in case of Disturbance to a Prebendary. 7. R. 2. Qu. Impedit 21. 13 R. 2. Bre. 643. Or of Disturbance in a Presentation to a Vicarage, 5 Ed. 3. Quare Imp. To a Provostry, 17 E. 3. 20. To a chapel, 17 E. 3. 12. : so that albeit it hath been said, that by the Grant of a Church the Advowson passed 
h Per Parning, 7 Ed. 3. f. Qu. Imp. 9 , and when he gave the one, he gave the other; yet is the word Advowson not improperly applicable to any thing wherein a Quare Impedit will lie. And he in whose Right such Presentation is rested, is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae, because (as the Constitution hath it) tueri & defenders Ecclesiam & ejus jura tenetur, ad instar Advocati qui in Judicio Causam alicujus defendit. Lindw. Provin. Const. de Foro Comp. cap. Circumspect, ver. Advocatus. Which every Patron is obliged to do; whence Patronus and Advocatus Ecclesiae are in effect Synonymous; yet in Lindwood we have the Question put, whether there be any difference inter Patronum & Advocatum Ecclesiae. Lindw. Const. Prov. de homicidio, cap. Sacri, Gloss. ibid. Where though the prevailing opinion be for the Negative, yet you will also there find very Orthodox Authority for the contrary, and that Advocatus intelligitur non pro Patrono, sed pro Defensore Ecclesiae: Gloss. ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici, who being Doctor of Laws, Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions, sent as his ambassador to the Crowns of Spain and Portugal; and at his Return about An. 1422. compiled what now is extant to his Immortal Memory, and Dedicating the same to the said Archbishop, it was after about An. 3505 (being first revised by Wolfgangus Hopylius) printed at Paris, at the cost and charges of William Bretton Merchant of London. Mention hereof is here made, in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical abridgement, and that rather in the midst of this Subject touching Advowsons', as presuming, that for the reason aforesaid a Quare Impedit will not lie in the case of this digression.  
(6.) The Right of Patronage is, it seems by the Common Law, a real Right fixed or vested in the Patron or Founder in the Church, wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements, or any Freehold whatever 
i Vid. 8 Ass. 29. 13 Ass. 22. 11 H. 4. 84. Pasch. 9 Ed. 3. Quare Imp. 30. Co. 2. par. Instit. acc. & 38 Ass. 22. The Prior of Plymton 's Case. Co. 2. par. Inst. acc. : And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance. For at the first Creation of a manor, if Lands were given to erect a Church thereon, the Advowson thereof became appendent to that manor, and reputed as parcel thereof, which being Temporal, the other became so also, as an Accessary to the Principal; for which reason such an Advowson passeth by the Grant of the manor cum pertinentiis 
k 9 Ed. 4. 39 33 H. 6. 33. Co. 10. par. Whistler's Case. . Yea, it hath been adjudged, That by the Grant of a manor, without making any mention of the Advowson, the Advowson also passed, because it was parcel of, and appendent to the manor 
l Co. ibid. vid. acc. Trin. 8 Jac. C. B. Walter and Bould's Case. Bolstr. 1. par. 32, 33, 34. . And it hath been ever held, That by the Common Law an Advowson is a Temporal Inheritance, for that it lieth in Tenure, and may be holden either of the King, or of a Common person; and hath been held of the King in Capite, or in knight's Service 
m Vid. 12 H. 17. 19 21 Ed. 3. 5. . And were a Quare Impedit hath been brought, the Plaintiff hath counted, that the Defendant held the Advowson of him by Homage and Fealty 
n The Abbot of Webback's Case. . And it hath been agreed, that an Advowson doth lie in Tenure, and that the Lord may distrain in the Glebe-Lands for Rents and Services, the Patron's cattle, if any be there found upon the Land, but not the cattle of a Stranger 
o The Prior of Castle-Acre's Case verse. the Prior of Butley. Hugh. Abridg verb. Advowson. Sect. 3. §. 4. .  
(7.) Other Reasons, it seems, there are at the Common Law, which prove, That an Advowson is a Temporal Inheritance; for that a Writ of Right of Advowson lieth for him, who hath an Estate in an Advowson in Fee-simmple, or Right of an Estate therein to him and his Heirs in Fee-simple. Which Writ being Quod clamat tenere de te 
p 15 H. 8. per omnes Justiciarios, & vid. F. N. B. tit. Droit de Advowson. , doth suppose a Tenure, and lieth not only for the whole Advowson, but also for some part thereof. As also because a Praecipe quodreddat lieth for it, as hath been Adjudged 
q 20 Ed. 4. 15. . As also that a Common Recovery may be suffered of an Advowson, as hath been likewise Adjudged 
r 35 Eliz. C. B. Crocher and Dermer's Case. Poph. 22. vid. Co. 5. par. 40. & 2. par. 74. & 1. par. 56. acc. . As also because an Advowson, as other Temporal Inheritances, may be forfeited by Attainder of Treason or Felony, or lost by Usurpation, six months' Plenarty, Recusancy, Outlawry, Negligence or Lacks of Presentment, Translation, or Cesser, and given away in Mortmain 
s Vid. 9 H. 6. 57 Co. 10. par. 55. The Chancellor of Oxford 's Case. . As also for that the Wife shall be endowed thereof, and have the third Presentment; and the Husband shall be Tenant thereof by the courtesy; also it is successively devisable among Coparceners, that the priority of Presentment shall be in the eldest Sister; likewise it may pass by way of Exchange for other Temporal Inheritance; and albeit during the vacancy of the Church it be not in itself valuable, yet otherwise it is as to an Incumbent; and by Grat of all Lands and Tenements an Advowson doth pass, if not by Livery, yet by Deed is transferable as other Temporal Inheritances 
t Parson's Law, 39, 40. vid. the Authorities there vouched. , and pass with the manors whereunto they are appendent by Prescription, unless there were before a severance by Grant, Deed, Partition, or other Legal Act 
u Co. Inst. 1. par. ; which Prescription is so requisite to Appendancy, as without which it cannot well be at all 
x 13 Eliz. Dyer 299. in evileighs Case. .  
(8.) An Advowson in Gross is understood as under a more beneficial qualification, than that which is appendent; and that which is appendent, may by severance become an Advowson in Gross: And therefore in the Case, where a man being seized of a manor whereto an Advowson was appendent, and by Deed granting one Acre belonging to that manor unà cum Advocatione Ecclesiae, did further by the same Deed give and grant the said Advowson; the Question was, whether the Advowson did pass as appendent to the Acre, or as an Advowson in Gross? And the better Opinion was, That by that Grant the Advowson was severed from the manor, and was become in Gross; for that the Deed shall be taken most beneficial for the Grantee to have the Advowson in Gross, and not as appendent to the Acre. But in that case it was Agreed, If the whole manor had been granted, than the Advowson had passed as appendent, and not in Gross 
y 33 H. 8. Dyer 48. vouched per hugh's in his Abridg. verb. Adv●●son, §. 4. ubi, To what things Advowsons' may be appendent, and to what, not and how in several select Cases. vid. Hughes, ubi supr. . Yet an Advowson appendent to a manor, descending to divers Coparceners, making Partition of such manor without mentioning the Advowson, remains appendent notwithstanding such Division and Severance from the manor 
z Co. 8. par. 8. Wyatt Weild's Case. : Yea, although the manor of D. to which an Advowson is appendent, be granted, and by the same Deed the Advowson also of the Church of D. So, as it is named no otherwise than in Gross, yet it shall thereby pass only as appendent 
a By the Opinion of Finehden, in 48 Ed. 3. Hugh's, ibid. .  
(9) If the King makes a Lease for life of a manor, to which an Advowson is appendent, without making any mention of the Advowson, the Advowson remains in the King as in Gross; as was granted by the Justices: And it was said by them, That in such case by Grant of the Reversion, Habendum the Reversion with the Advowson, the Advowson passeth not to the Patentee, for that the Advowson was severed, and became in Gross as to the Fee 
b Co. 11. par. 47. Liford's Case. . And in another Case, where it was found before Commissioners, That A. was seized of a manor, to which an Advowson was appendent, and that he was a Recusant convict; whereupon two parts of the manor were seized into the King's hands, who leased the manor, with Appurtenances, and all profits and commodities, and Hereditaments to the same belonging, unto J. S. for 21 years, if A, etc. and afterwards the Church became void. In this Case it was held, That albeit there was no mention in the seizure of the Advowson, yet the Presentment belonged to the King, and that the King alone should Present. Secondly, That there were no words in the Kings Grant to J. S. to carry away the Advowson from the King, and that notwithstanding that Grant, the Advowson remained still appendent to the manor 
c Mich. 14 Jac. C. B. rot. 651. The Chancellor of Cambridge and Walgrove's Case. Hobb. 127. .  
(10.) By words implying merely matter of profit or things gainful, as Cum omnibus commoditatibus, Emolumentis, proficuis, advantagiis, and the like, an Advowson will not pass, because it is contrary to the nature of an Advowson regularly; and therefore the Advowson of a Vicarage appendent to a Prebend, passed not by a Lease with such words of several parts of the Prebend to which such Advowson was appendent 
d Mich. 16 Jac. C. B. rot. 1877. Jo. London, and the Collegiate Church of St. Mary Southwell's Case. Hob. Rep. . Not will an Advowson appurtenant to a manor, pass by the Grant of an Acre of Land parcel of that manor cum pertinentiis; otherwise, if the Grant be of the manor itself cum pertinentiis 
e Trin. 8. Jac. B. R. Walter and Bold's Case. Bolstr. 1. par. fol. 35. . Yet in a Case where the King being seized of a manor to which an Advowson was appendent, granted the manor to J. S. for life, and then granted the manor to J. D. after the death of J. S. Habendum cum Advocatione, and then by Parliament the King reciting both the Grants, confirmed them by Parliament: yet it was Adjudged in that Case, That the Advowson did not pass 
f 33 H. 6. 33. vouched in Colt and the Bishop of Coventry and Lichfields Case Mich. 10 Jac. C. B. Rot. 2642. Hob. Rep. . Nor will an Advowson (if once appendent) pass without special words of Grant thereof, which may not be strained in the construction thereof to an unusual or unreasonable sense, for which reason an Appropriation will not pass by the name of an Advowson; but (as aforesaid) an Advowson of a Vicarage may be appendent to a Prebend; All which hath been Resolved in the forecited Case 
g Mich. 16 Jac. C. B. dict. London's Case. . And if Tenant in Tail be of a manor to which an Advowson is appendent, the Church being full, and he grants proximam Advocatione, and then dies; by his death the Grant becomes merely void, as was also Resolved in Walter and Bould's Case 
h Trin. 8 Jac. B. R. Bolstr. 1. par. 35. .  
In a Quare Impedit, The Case was between the Chancellor and Scholars of Oxford, and the Bishop of Norwich, and others. The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowson, 2 Jac. was a Recufant convict, and that afterwards the Church became void, and so they by the Statute ought to Present. 
More's Rep.  One of the Defendants pleaded, That the Advowson was appendent to a manor, and that two parts of the manor were seized into the King's hands by Process out of the Exchequer, and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances, and granted also all Hereditaments (but Advowsons' were not mentioned in the Letters Patents) and so said, the Presentation did belong to the Defendant: It was Resolved, That the Advowson did not pass by the word [Appurtenances] without mention of Advowson or words Adeo plena & integra, & in tam amplo modo & forma; as the Recusant had the manor.  
(11.) In case a Patron be Outlawed, and the Church becoming void a Stranger doth usurp, and presents his Clerk to the Avoidance, and Six months' pass, and afterwards the King, being entitled to the Avoidance by reason of the Outlawry, bring a Quare Impedit against the Incumbent as being in wrongfully, and remove him: By this means the Advowson is recontinued again to the Rightful Patron, whereof he was ousted by the Usurpation, who upon the reversal of the Outlawry shall Present, in case the Church becomes void again 
i Co. 1. par. Instit. 363. .  
(12.) A man hath Three Avoidances granted him of one Church at one time and by one Deed; The Church becomes void; the Grantor by Usurpation presents his Clerk, who is Admitted, Instituted, and Inducted, afterwards the Church becomes void again. In that case the Grantee shall present to the Second Avoidance, for that the former Presentation made by the Grantor usurping, did not put the Grantee out of all the Avoidances; and Adjudged accordingly 
k Mich. 18 Eliz. C. B. .  
(13. A. seized of a manor with an Advowson appendent, presented B. who was Admitted, Instituted, and Inducted; afterwards A. fells the manor to which the Advowson was appendent, unto J. S. The Church becomes void by the death of B. whereupon the Queen 15 Feb. 1588. Present J. D. by these words, viz. Per mortem naturalem Incumbeatis ibid. vacant. who thereupon 20th of the said Feb. was Admitted, Instituted, and Inducted by Letters of Institution, Per Dominam Reginam veram & indubitatam Patronam. The said J. D. dies: The King presents R. in these words, viz. Ad nostram Praesentationem sive ex pleno jure, sive per Lapsum Temporis, sive alio quocunque modo spectant. The only Question was, Whether, notwithstanding all this matter, the Advowson did remain appendent or not? And it was Adjudged by the Court, That the Advowson remained appendent, notwithstanding the Queen's presentation of J. D. For it appeared, there was no colour of Title to the Queen to present; no Lapse, for the Presentation, Institution, etc. were all in the same month, wherein the Advoidance was: And it was no Usurpation by the Queen, because the Presentation supposed a Right where none was, and so was void; for the Queen meant to do no wrong: And upon the same reason the Presentation of R. afterwards by the King was void. And it was then further holden by the Court, That the Presentation of J. D. being void, it was but a Collation of the Bishop, which makes no disappendancy, nor so much as a plenarty against the Rightful Patron, but that he may bring his Quare Impedit when he will; and if the Bishop receive his Clerk, the other is out ipso facto 
l Hill. 17 Jac. C. B. rot. 1840. Gawdy and the Archbishop of Canterbury and Rone's Case. Hob. 301. Hugh Abridg. ver. Advows. Sect. 6. §. ult. .  
(14.) Although an Advowson be a kind of Reversion of a right of Presentation to a Living or Benefice called Spiritual, yet it is now in the nature of other Temporal Inheritances; and therefore he that hath this Right in him, may either devise it by Will, or grant it by Deed, in Fee, or for life, or for years, as other things 
m Co. 5. 56. 15 H. 7. 8. . And in regard an Advowson or Jus Patronatus refers to and respects not the Oblations and Tithes belonging to the Church, but rather the Building thereof, with the Ground whereon it is built, and the Endowment thereof; if therefore any debate or controversy should happen to arise touching any of these last mentioned, it might prejudice the Patron as to his Right to the Advowson; but if the controversy be only touching the other, viz. the Oblations or Tithes, whether Great or Small, the Jus Patronatus will remain good and entire to the Patron notwithstanding such controversy, provided the Suit doth not extend and be for a fourth part of the whole belonging to the Church, Lindw. de Foro Comp. cap. circumspect, verb. Item si Rector, & gl. ibid. verb. quarta pars. And he to whom the Right of Advowson of any Church appertains, is termed Avowè for distinctions sake, to discriminate him from those who sometime Present in the Name of another, as a Guardian that presents in the Name of his Minor: as also to difference him from such as have only for term of their Lives, or of years, or by Intrusion or Disseisin, the Lands to which an Advowson appertains; the Avowè, properly and strictly taken, being only he who may Present in his own Right and in his own Name 
n Britton, cap. 29. .  
(15.) It hath been adjudged, That an Advowson belonging to a Prebend will not pass by a Lease thereof, albeit it hath in it these words, viz. Commodities, Emoluments, Profits and Advantages; because all these four words being of one sense and nature, imply things gainful, which is contrary to the nature of an Advowson regularly, as aforesaid; yet an Advowson may be yielded in value upon a Voucher, and may be Assets in the hand of an Executor 
o Dict. Cas. London vers. the Collegiate Church of St. Mary Southwell. ; and in the foresaid Case of London verse. etc. it is said, That an Appropriation, nor the Advowson of it, will not pass by the name of an Advowson, yet an Advowson will be contained under the name of a Tenement 
p 44 Ed. 3. 33. cited in dict. Cas. . And where the King granted that Monks should have all their Possessions of the Abbey in the Vacation for their sustentation; Ruled, that they should not have the Advowsons', because no sustentation arose from them 
q 39 H. 6. cited in dict. Cas. ; nor will an Advowson, though it be appendent, pass in the Kings Grant, without special words 
r Mich. 14. Jac. C. B. Rot. 647. Chancellor, etc. of Cambridge vers. Walgrave. Hob. Rep. ; yet in the Case of a Recusant convict, to whose Lands an Advowson is appendent, the seizure of Two parts of his Land for the King is a Seizure by consequence of two parts of the Advowson, without mention of it 
s Cas. ibid. ; and if the King have but Two parts of an Advowson, yet he shall Present alone, for no Subject can be Tenant in Common with the King; who (though he be no party to a Quare Impedit) yet if his Title appear clear for him against both parties, shall have a Writ awarded for him to the Bishop 
t Ibid. . Or if the King join issue in a Quare Impedit, which is not found fully for him, yet if a Title do any way appear, the Court must award a Writ to the Bishop for him 
u Dom. Rex vers. Bishop of Rechester, and Jackson his Clerk. Hob. Rep. .  
(16. A. brought Quare impedit against D. The Plaintiff counted that the Defendant had disturbed him to Present ad Vicariam de D. and shown, That the Queen was seized of the Rectory of D. and of the Advowson of the Vicarage of D. and by her Letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis, & etiam Vicariam Ecclesiae praedict. And it was holden by the whole Court, That the Advowson of the Vicarage by these words doth not pass; nor so in the Case of a Common person, much less in the Case of the King: But if the Queen had granted Ecclesiam suam of D. then, by Walmsley Justice, the Advowson of the Vicarage had passed 
x Mich. 31 & 32 Eliz. C. B. Rot. 458. Case Ashegell vers. Dennis. Leon. Rep. .  
(17.) Although he, who after the death of a Parson Incumbent hath Right of Presentation in him, doth not upon a Disturbance bring a Quare Impedit not Darrein Presentment, but suffereth a Stranger to usurp upon him; yet he may have a Writ of Right of Advowson; but this Writ lieth not for him, unless he claim to have the Advowson to him and his Heirs in Fee-simple 
y Term. Law verb. Quare Impedit. ; which Advowson is valuable, though the Presentment be not 
z Trim. 31 Eliz. C. B. Smalwood vers. Bishop of Lichfield. Leon. Rep. .  
(18.) The Queen seized of an Advowson being void, the Ancestor of P. Presented, and so gained it by Usurpation, and then the Church being void he Presented again, his Clerk dies, and then the Queen grants the Advowson to Y. the Plaintiff, who brings a Quare Impedit in the Queen's Name, supposing that this Usurpation did not put the Queen out of Possession: It was argued, That the Grant could not pass without special words, because it is in the nature of a Chose in Action: And Dyer, Mead, and Windham held, That this Usurpation did gain possession out of the Queen, and that she should be put to her Writ of Right of Advowson; but the Opinion of Anderson chief Justice was clearly, That the Queen was not out of Possession; for he said, That it was a Rule in our Books, that of a thing which is of Inheritance, the act of a Common person will not put the Queen out of possession: But if she had only a Chattel, as the next Advowson, than perhaps it is otherwise. But Mead and Windham very earnestly held the contrary, relying on the Book of 18 E. 3. where shared said, That if the King had an Advowson in his own Right, and a Stranger, who had no Right, happen to Present, it puts the King out of Possession. And the King shall be put to his Writ of Right, as others shall 
a Vid. 47 E. 3. 14. b. 18 E. 3. 16. . The Defendant alleged Two Presentations in his Ancestor after the Title of the King, and demanded judgement if the King should have a Writ of Possession, and the Plea was admitted to be good. But after Pasch. 25 Eliz. judgement was given for the Queen, for that she might very well maintain a Quare Impedit, and the two Presentments did not put her out of possession 
b Pasch. 28 Eliz. C. B. Yardly verse. Pesean. Owen's Rep: .  
(19) In a Quare Impedit by G. against the Bishop of L. and D. Incumbent: The Case was, That a manor with the Advowson appendent was in the hands of the King, and the Church became void, and the King grants the manor with the Advowson: If the Grantee shall have the Presentation, or the King, was the question. All the Justices held clearly, That the Avoidance would not pass, because it was a Chattel vested. And Periam said, that in case of a Common person without question an Advowson appendent would not pass by such Grant; for if the Father die, it shall go to his Executor: but if it be an Advowson in Gross, in case of a Common person there is some doubt: But in the Principal Case all the Judges held ut supra, and said, That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster: But F. N. B. is contrary, 33. N. 
c Mich. 29. & 30 Eliz. Sr. Tho. Gorge. vers. Bishop of Lincoln, and Dalton Incumbent. Owen Rep. .  
(20.) Of Advowsons' there are three Original Writs, whereof one is a Writ of Right, the other two of Possession, viz. Darrein Presentment, and Quare Impedit. And where an Advowson descendeth unto Parceners, though one Present twice, and usurpeth upon his Co-heir; yet he that was negligent shall not be clearly barred, but another time shall have his turn to Present when it falleth 
d St. 13 E. 1. cap. 5. Vid. Rast. pla. fo. 101, 144, 496. & Stat. 2 & 3 Ed. 6. 13. . And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living, or to Collate or Nominate to any Donative whatsoever, the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge 
e St. 3 Jac. c. 5. . Also by the Statute of 13 E. 1. 5. it is directed, what Action shall be maintained by him in the Reversion, who is disturbed to Present after the Expiration of a particular Estate; where there is also provided a Remedy for him in the Reversion or Remainder, or others that have right, where there is an Usurpation of an Advowson during any particular Estate: And that judgements given in the King's Courts touching Advowsons' shall not be avoided by Surmizes, but by lawful means 
f St. 13 E. 1. cap. 5. . Likewise it is Statute-Law to hold, That Advowsons' shall not pass from the King but by Special words; for when the King doth give or grant Land or a manor with the Appurtenances, unless he make express mention in his Deed of Advowsons' of Churches, when they fall, belonging to such manor or Land, they are reserved to him, notwithstanding the word [Appurtenances,] albeit among Common persons it hath been otherwise observed 
g St. 7 Ed. 2. 15. & Co. lib. 10. fo. 63. & Dyer, fo. 350. ; nor is it lawful to purchase an Advowson, during the dependency of a Suit at Law concerning the same 
h St. 13. Ed. 1. c. 49. .  
(21.) If a Feme Covert be seized of an Advowson, and the Church becomes void, and the Wife dieth, the Husband shall Present 
i Dyer 26. 9 Ed. 4. 47. a. Co. supr. Lit. 120. 14 H. 4. 12. . Where Parson and Vicar be Endowed in one Church, and the Vicarage becomes void, the question is, To whom the Advowson of the Vicarge doth belong, and who in that case shall be said to be the Patron of the Vicarage? Whether the Patron of the Parsonage, or the Parson? It seems the Books at Common Law, the Judges and the Court, were divided in Opinion touching this point 
k 17 E. 3. 51. Parson's Law, cap. 23. ; some of the Judges were of Opinion, That the Advowson of the Vicarage appertains to the Parson; Others, that it belongs to the Patron: Such as inclined, that it is in the Patron 
l Mich. 16 E. 3. Fitz. Q. Imp. 145. by Parninge and Hill. , gave for reason, That the Ordinary cannot make a Vicar without the assent of the Patron, 5 E. 2. Quare Impedit 165. puts the Case, That although the Vicarage be Endowed with the assent of the Patron and Ordinary, yet the Advowson of the Vicarage doth remain in the Parson, because the same is parcel of the Advowson of the Parsonage 
m parson's Law, c. 23. . And 16. E. 3. Grants. 56. it was a question, Whether by the Grant of the Advowson of the Church, the Advowson of the Vicarage did pass? and there it was said by Stone, That it doth pass as Incident to the Parsonage 
n Ibid. 17 E. 3. Grants, 66. 13 R. 2. Jurisdiction, 19 16 E. 3. Man's Defaults, 166. . And in regard the Vicar is as the parson's Substitute, and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson, whose Concern it is to see that he be a fit and able person sufficient for the Cure, it should thence seem rational that the Parson should be his Patron, to Present such an one to the Vicarage as shall be sufficient for the Cure; for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson, than to the First Patron of the Parsonage Appropriate.  
(22.) An Advowson cannot, it seems, at the Common Law be called a Demesne, for that it is not such a thing as a man hath a Manual occupation or possession of, as he hath of Lands, Tenements, and Rents, whereof he may say in his Pleading, That he was seized thereof in his Demesn as of Fee, which he cannot say that hath only the Advowson of a Church, because it lies not, as the other, in Manual occupation: And therefore in the case of Advowson of a Church, he may only say that he was seized as of Fee, and not in his Demesn as of Fee 
o Littl. tenors, l. 1. c. 1. vers. fin. , whether it be an Advowson in Gross or appendent, which Appendancy is held to be for the most part by Prescription, and must relate to such things as are in their own nature of a perpetual continuance; for which reason it is, That Advowsons' cannot be said to be appendent to Rents, Services, and the like, because such things are extinguishable 
p Co. 4. Terringham's Case. . And although an Advowson be not properly said to be a Demesn, yet it may be appendent to a Demesn, as of Lands or things Corporeal and Perpetual, and therefore (as supposed) not to a House of habitation, merely quatenus such, yet to the soil, whereon the House is erected; whereby the Law (which hath the clearest prospect of Casualties at a distance) hath provided, that the Advowson shall stand, though the House fall 
q 10 H. 7. 13. b. by Reeble. Pars. Law, cap 8. Ubi, 16 H. 7. 9 by Reed. ; but an Advowson Disappendant and in Gross, which in man hath alone, and not by reason of any other thing, but severed from the Lands to which it was appendent, such an Advowson is exempt from divers prejudicial Incidents which the other, viz. the appendent, cannot well avoid. And where a Subject or Common person hath an Advowson appendent to a manor, and there be an Usurpation upon him, by a Presentation made by a Stranger, whose Clerk is in for Six months, though this makes the Advowson of such Common person Disappendant to his manor; yet it is otherwise in case of the King, who may grant the Advowson notwithstanding such Usurpation; for a man cannot put the King out of possession either by Presentation or Usurpation, as hath been Adjudged 
r Mich. 13, 14 Eliz. Bendioes, dd. ●'Opinion del Curl. Hob. Rep. vid. 16 E. 3 F. Q●. Impedit, 67. . Nor doth the King's Presentation by Lapse sever the Advowson from the manor, or cause it to become disappendant, as in Gawdy's Case against the Archbishop of Canterbury and Others, was likewise Adjudged; in which Case it was also said by Habard Chief Justice, That neither doth a wrongful Collation of the Bishops make any Disappendancy, nor any binding Plenarty against the true Patron; but that he may not only bring his Quare Impedit when he please, but also Present upon him seven years after 
s Hill. 17 Jac. rot. 184. Case Gawdy verse. Archb. of Cant. & dies. Hob. Rep. . Also, whereas it was said before, That an Advowson cannot be appendent to things Extinguishable, as to Rents, Services, and the like, so it seems at the Common Law an Advowson in Possession cannot be appendent to a Reversion expectant upon an Estate for life; for the Case was, The King seized of a manor with an Advowson appendent, granted the manor to J. S. for life, and then granted the manor to J. D. after the death of J. S. Habendum una cum Advocatione; and then by Parliament the King reciting both the Grants, confirmed them by Parliament, yet the Advowson passed not 
t Case of the Abbess of Zion, 38 H. 6. 33. Cit in Colt and glover's vers. Bishop of Coventry and Lichf. Mich. 10 Jac. Rot 2642. Hob. Rep. . Finally, whereas also it hath been Adjudged (as aforesaid) that the King cannot be put out of possession either by Presentation or Usurpation, this seems to refer only as to the King's Advowson, and not as to his present Presentation; for the Opinion of Sir H. Hobart Chief Justice is, That although the King may be dispossessed of his present Presentation, he cannot be so of his Advowson, and therefore he may still grant it, notwithstanding the Usurpation, as was Judged in a Writ of Error, upon a judgement given to the contrary, between the King and Campion for the Vicarage of Newton Valence 
u Pasch. 14 Jac rot. 1030. Lord Stanhope vers. the Bishop of Lincoln, and others. Hob. Rep. .  
(23.) A Donative in the King's Gift may be with Cure of Souls, as the Church of the Tower of London is a Donative in the King's Gift with Cure; as in the Case of Fletcher and Mackaller, where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money; and per Curiam, it well lies 
x Mich. 9 Car. B. R. inter Fletcher and Mackaller. .  
(24.) The Queen hath the Advowson of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Justices, that the Advowson passeth not; for that the Vicarage is another thing than the Advowson of the Vicarage 
y Cro. par. 1. . The Queen seized of a manor, to which an Advowson was appendent, granted the manor cum Advocatione Ecclesiae, the Church being then void: It was Adjudged the Avoidance did not pass, but the Queen should Present pro hac vice 
z Hill. 29 Eliz. Sir Tho. George's Case. Moor's Rep. . And in the Queen and Hussie's Case it was Resolved, That a double Presentation would not put the Queen out of possession, if she hath Right 
a Moor's Rep. . And in Stephens and Clarks Case it was Resolved, That the Grant of the next Avoidance to one during the Avoidance, is void in Law 
b More. ib. .   

CHAP. XX.  
Of Appropriations.  

1. The great Antiquity of Appropriations; a Conjecture of their Original; whether Charles Martell was the occasion thereof? they were prohibited in England anciently by the Pope; whether they can be otherwise than by the King, or some Authority derived from him?  
2. How the End and use of Appropriations is changed at this day from what it was in the Original Institution thereof.  
3. Appropriators why called Proprietarii; The care of R. 2. in making Provision for the Vicar in case of Appropriations; Requisites of Law to make an Appropriation.  
4. A further discovery of the Original, use, and ends of Appropriations, and under what qualifications.  
5. Whether Appropriations were anciently grantable to Nunneries?  
6. Appropriations not now to be questioned, as to their Original.  
7. A Vicarage endowed may be Appropriated, but not to a Parson.  
8. Three considerable Points of Law resolved by the justice's touching Appropriations.  
9 Whether an Advowson may be Appropriated without a Succession? Appropriations usually were to Corporations or Persons Spiritual.  
10. How a Church Appropriate may be disappropriated.  
11. In Appropriations the Patron and his Successors are perpetual Parsons.  
12. Whether an Appropriation of a Parsonage without endowment of the Vicarage be good? Also, whether an Appropriation may be made without the King's licence?   
(1.) IT is a question at this day undecided, Whether Princes or Popes were the first Authors of Appropriations? the practice whereof by each of them is of great Antiquity; but whether in imitation of Charles Martell's Sacrilegious precedent (the first by whom Tithes were ever violated in the Christian World) is but a Supposition rather than any Assertion among Historians. It was long since Traditionally Recorded in History, that about the year 650. when the said Charles Martell, Father of Pipin, after King of France, in defence of his Country against the Huns, Goths, and Vandals, had slain no less than 34500 of those Infidel Sarazens in one battle, he did not restore to such of the Clergy of France their Tithes, as from whom under a fair pretence of supporting the charges of the War thereby, he had (upon a Promise of Restitution thereof so soon as the War should cease) obtained the same; but instead thereof gratified such of the Nobility, as had assisted him in the War, by the grant thereof to them and their Heirs for ever. But whether this sacrilege (if it be true) had such a malign influence upon succeeding Princes in After-ages, and other Kingdoms, and also upon the Popes, as some Historiographers do more than conjecture, is not so evident as that which is reported by Ingulphus Abbot of Crowland, touching Eight Churches to have been Appropriated to that Abbey by several Saxon Kings; and though by their Charters, yet whether by such exclusively to all Ecclesiastical Authority, is not so certain, as that William the Conqueror, without ask leave of the Pope, Appropriated three Parish-Churches to the Abbey of battle, which he built in memory of his Conquest; and his youngest Son H. 1. nigh twenty in one day to the Cathedral of Sarum by his Letters Patents, together with the Tithes of those Parishes which his elder Brother William, surnamed Rufus, had depopulated and disecclesiated in New-Forrest in Hantshire. Notwithstanding which, the Pope (who understood his Supremacy in matters Ecclesiastical better than to part with it upon any precedents of Temporal Usurpations) doth frequently in his Decretals, without any contradiction, rather assume than arrogate this Right unto himself, as a Prerogative of the Apostolic See, and granted to several Religious Orders this privilege of taking Ecclesiastical Benefices at laymen's hands by the mediation of the Diocesan, who at a moderate and indifferent rate (as one moiety of the Annual profits of the Benefice) was to be a Medium or Expedient between the Religious House and the Incumbent; but in process of time, partly by the remissness of the Bishops in that point, and partly by the Covetousness of the Monks and friars in those days, the Incumbents proportion became at last so inconsiderable, that Pope Vrban the Fifth by his Legate Othobon, about the year 1260 was forced to inhibit all the Bishops here in England from Appropriating any more Churches to any Monastery or oaths Religious Houses, save only in such cases where Charity might prevail in derogation of Law; and under this Proviso also, That the Bishops should assign a competent proprotion of the Parochial Fruits for the Maintenance of the Incumbent, according to the annual value thereof, in case the new Appropriators did it not within Six months' next after such Appropriation; but this Constitution not taking the effect expected, a convenient Maintenance for the Vicar was otherwise provided for by Two Statutes, the one made by R. 2. the other by his Successor H. 4. So that upon the whole it may be rationally inferred, that these Appropriations originally came, partly by the Act of ecclesiastics, and partly by the Laity. But what way soever they came, this is and hath been held for Law within this Realm, That albeit the Pope takes upon him to be supreme Ordinary, yet no Appropriations made by him, or by any Authority derived from him, 
Coke. 5. par. 11, 2, 13. acc.  were ever allowed or approved of by the Laws of this Realm; it being held, That no Appropriations within this Realm can be made but by the King, or by Authority derived from him, and by his licence, and that all other Appropriations are void in Law. An Appropriation may be by the King Sole where he is Patron, but it may not be by the Patron Sole: Grendon's Case in Plowden. & 17 E. 3. 39 An Appropriation cannot be without the King's licence. Ward's Case Poph. Rep. Nor will the Objection hold against the King, 
Coke 5 par. 10. in Cawde●'s Case.  to say, No man can make an Appropriation of any Church, having Cure of Souls (the same being a thing merely Ecclesiastical, and to be made by some Ecclesiastical person) but he only who hath Ecclesiastical Jurisdiction; 
Coke ib. & 11. par. in Fridle and Napper's Case.  for such Jurisdiction the King hath, and is such a Spiritual person, as may of himself Appropriate any Church or Advowson, because in him resides the Ecclesiastical Power and Jurisdiction. 
T●m. 11 H. 4. 87. vouched in Davie's Reports, as per Hugh Abridg. verb. App● 〈◊〉. Vid. 22. E. 3. 〈◊〉 Coke 5. par. vouched in Cawdri's Case.  And therefore in a Case of Commendams it was long since held, That an Appropriation made by the Pope, could not be good without the King's licence. The like in a Case of Avoidance was vouched in cawdry's Case, That the Entry into a Church by the Authority of the Pope only, was not good, and that he could not Appropriate a Church to Appropriatees to hold to their own use. And in Gyendon's Case it was Resolved by the Justices, That the Ordinary, Patron, and King, aught to be assenting to every Appropriation; and that the Authority which the Pope had usurped in this Realm, was by Parliament, 25 H. 8. acknowledged to be in the King, 
Pasch. 19 El. C. B ploughed. Comment. 496. 497 etc. Grendon's Case.  who as supreme Ordinary may Appropriate without the Bishop's Assent.  
(2.) It seems therefore without any contradiction most evident, That Appropriation or Impropriation, at the Original thereof was, when the Religious Houses of the Romish Church, and the Religious persons, as Abbots, Priors, and the like, had the Advowson of any Parsonage to them and their Successors, obtaining licence of their Holy Father the Pope, as also of Kings, and of their Ordinaries, that they and their Successors should from thenceforth be the Parsons thereof, that it should thenceforth be a Vicarage, and that a Vicar should serve the Cure. So that at the beginning of this Spiritual Monopoly of Appropriations, they were made only to such Spiritual persons as were qualified to Administer the Sacramental Ordinances, and perform Divine Service. Afterwards the Grant thereof was gradually enlarged, and extended to Deans and Chapters, though Bodies politic, and as such not capable of performing such Divine Services; yea, and (which was most Ridiculous as well as Impious) to Nunus, which were Prioresses to some Nunnerics, but not Female-Preachers, as in these days. All which was under a Pretence of maintaining Hospitality; and to supply all defects hereby occasioned, there must be the Invention of a Vicar, as the Appropriators Deputy, to serve them and the Cure, for which he had and hath the Tithe of Mint and Cummin, and such other small ossals of Tithes, as might be spared out of the weightier Granaries thereof without breach of the Laws of Hospitality, thereby Sacrilegiously robbing the Church to enrich themselves. Thus the poor Vicar shall have something like a certain portion of the Benefice, whilst the Abbot and the Covent, and their Lay-Successors, shall be the Parsons, and receive the main Profits, and so live by the Altar without waiting on it, and be rebaptized by the Law with the name of Parson's Imparsonces. This was that Anciently, which we now call Appropriation, which cannot be made to begin in the Parson's Life-time without his Assent; and is so called, because they hold the Profits ad proprium suum usum; but if such Advowsons' happen to be recovered by Ancient Title, then and in such case the Appropriation of the Parsonage is annulled 
a Terms of Law, verb. Appropriation. .  
(3.) So that from the premises it is evident, That this Appropriation or Impropriation is an Annexation of an Ecclesiastical Benefice (which originally was as it were in nullius Patrimonio) to the proper and peculiar use and benefit of some Religious House, bishopric, Dean and Chapter, college, etc. Quod Divini juris est, id nullius est in bonis. Instit. de Rer. Divis. §. Nullius. And it is supposed, That such as are Impropriators are so denominated, for that now and hereby they are as Owners of a Feesimple by reason of the perpetuity of their Title, whence called Proprietarii, whereas the Parsons of any Ecclesiastical Benefice are properly, regularly, and ordinarily accounted but Vsusructuarii, nor were they any other Originally, and not Domini as having any Right of Fee-simple in them 
b little. cir. Discontionance. . It is further asserted by Dr. cowel 
c Cowel's Interpreter, verb. Approp. , That before the Reign of R. 2. it seemed to be lawful to appropriate all the Provenues of an Ecclesiastical Benefice to an abbey or Priory, provided they found one to serve the Cure; but then withal, that King, though he did not suppress such Spiritual Monopolies, yet made a Law whereby he Ordained, That in every licence of Appropriations to be thenceforth granted in Chancery, it should expressly be appointed and contained, That the Diocesan of the Place should take care to provide an Annual competency or convenient sum of Money, to be yearly issuing and paid out of the Parsonage-Fruits of that Parish towards the maintenance of the Poor thereof, and for a sufficient subsistence and endowment of the Vicar 
d 15 R. 2. cap. 6. . By the Statutes of 15 R. 2. pl. 6. and 4 H. 4. cap. 12. it is Provided, That where a Church is Appropriated, a Vicar ought to be Endowed. If the Church be full, the consent of the Diocesan, Patron, and Incumbent are necessary to an Appropriation, after the King's licence first had and obtained in Chancery: But if the Church be void, than the Diocesan and the Patron, upon such licence from the King, may conclude it 
e ploughed. in Grendon's Case. fo. 496. b. etc. . And as to the Dissolution of an Appropriation, the Patron's Presentation of his Clerk to the Ordinary, with his Institution and Induction thereupon, is sufficient to effect it, and puts the Benefice instatu quo 
f F. N. B. 35. c. & Co. l. 7. fo. 13. .  
(4.) Although Appropriations at their Original were tolerated only to persons Ecclesiastical, and that in order to their better Hospitality, yet now they are become as Lay-Inheritances, and adapted as well to persons Secular as Ecclesiastical, and to Bodies Corporate as well as to persons Private or Individual, who by virtue of their Right and Title to a Parsonage or Spiritual Benefice, may take the Profits thereof to their own proper use, maintaining only a Vicar upon the place to serve the Cure. Anciently and Originally these Appropriations came from the Pope, afterwards tolerated by Kings, and with the consent and approbation of the Ordinary. So that now Appropriators and Appropriations are no other than lay-parsons' & Lay-Parsonages; which lay-parsons' as they are the Proprietaries, the Common Law allows them to be called the Incumbents, and him, that hath the Church by Appropriation, Parson Imparsonee; and although they are said to be perpetually Appropriate 
g Co. 11. 10. Blow 49. 6. ; yet may be Dissolved and become Propriate again, as in case a Corporation to which it belonged, should be Dissolved; or in case the Advowson should be Recovered by a Title more Legal and more Ancient than that of the Appropriation; which as it was originally tolerated only to Spiritual persons, so never without the ordinaries Consent and approbation; consonant whereunto are the Seventh and Eighth Canons of the Council held at Gangra, where a Curse is pronounced upon all such as shall presume to give or receive the Church-Fruits, otherwise than by the Bishop's Dispensation, or of such other as by the Bishop shall be appointed thereunto. Nor was it ever in the Primitive times held lawful for mere laymen and Secular persons to have any thing to do with the Church Revenues; It was an Observation of Stephen Bishop of Rome, in the second Century in his second Epistle, Laicis quoque, quamvis Religiosi sint, nulla tamen de Ecclesiasticis Facultatibus disponendi legitur unquam tributa facultas; which long after was also repeated in the Council of Lateran under Innocent the Third, c. 44. And in the filling of such vacant Appropriations as were granted to Religious Houses, the Bishop was impower'd by Law to oblige the Proprietaries to set out for the Vicar Incumbent such a convenient Portion, as the Bishop in his judgement should be pleased to allot. Vid. Alex. 3. ad Episc. Wigorn. De Praeb. & Dig. c. de Monach.  
(5.) Whereas it hath been formerly hinted, §. 5. that Appropriations have heretofore been granted to Nunneries, Hobard Chief Justice is express against it, That a Benefice with Cure could not be Approprietated to a Nunnery, though the Pope made many de facto, Citing Dyer in Grindon's Case, saying, That it was a thing Abominable, both against the Law of God 
h 1 Cor. 14. 34. , and the Law of this Realm; 
1 Tim. 2. 11, 12.  for Beneficium non datur nisi propter Officium. Nor is it a sufficient Answer to say, the Cure might be served by a Curate for them; for the question is not, How they might make a Curate, but how themselves were capable; for it must radically vest in the first Grantee, before it can go in title of Procuration or Deputation to any other: For the proper and operative words which make an Appropriation, are such as must make the Patron and his Successors perpetual Parsons; yet if a mere layman, or one wholly illiterate be Presented, Instituted, and Inducted: this is not a mere Nullity, but he is a Parson de facto, as having all the Ceremonies to make him such, and his Insufficiency must receive Examination, yet no Dispensation can make him a lawful Parson, not subject to Deprivation, because it is Malum in se; but in the other Case the Incapacity appears in itself 
i Mich. 10 Joc. rot. 2642. C. B. Coli and Glover vers. Bishop of cou. and Lichfield. Hob. Rep. . Nor are Appropriations regularly grantable over, neither can they endure longer than the Bodies, whereunto they were first Appropriate; because it carries not only the Glebe and Tithes (which may be granted away) but it doth also give them the Spiritual Function, and doth make the Parsons of the Church, and doth supply (so Hobart Chief Justice) Institution and Induction, which being the highest parts of Trusts, cannot be estranged: And therefore the Instrument of Appropriation runs in these words, viz. That they and their Successors (not their Assigns) shall be Parsons, or by Periphrasis hold the Church in proper use 
k Hill. 15 Jac. Rot. 1510. W. Wright verse. Gilbert Gerrand and Hildersham. Hob. Rep. . Likewise when an Appropriation was made by the King as the supreme Ordinary, or by a Bishop as the Ordinary under him, the Instrument thereof did run in these or the like words, viz. (if by the King) Authoritate nostra Regali; (if by the Bishop with the King's Assent) than it was Authoritate nostra Ordinaria, Ecclesiam Parochialem de B. tali, etc. Annectimus Appropriamus, & unimus per Praesentes.  
(6.) Appropriations of Ancient time are not now in these days to be questioned as to the Original of them, if they have ever been so reputed and taken for Impropriations 
l Trin. 37 Eliz. in Can. Scace. Crimes and Smith's Case. Co 12. par. 4. . To which purpose it was Resolved in the time of Queen Elizabeth in Chancery by Egerton Lord Chancellor of England, being assisted with the Principal Judges, That although an Advowson doth not pass by the Grant of the King in strictness of Law, by the words cum pertinentiis; yet it shall be intended in respect of the Ancient and continued possession, that there was a lawful Grant of the King to H. B. etc. and all shall be presumed to be done, which might make the Ancient Appropriation good: And the Reason thereof there given is, for that if the Appropriation had been drawn in question in the Life-time of any of the Parties to it, they might have showed the truth of the matter: But after so many Successions of Ages, in which the Church was esteemed to be rightfully Appropriated, the Appropriation shall not now be drawn in question 
m Hill. 4 Jac. in Chancery, Predle, and Beard, & Wingfield's Case. Co. 12. par. 5. . For the same reason a Procedendo was refused to be granted in Chancery in the Case of the Lord St. John of Bletso and the Dean and Chapter of Gloucester, the Court then giving for Reason, because the Defendant and those from whom he claimed, time out of mind had had the possession of a Parsonage as Impropriate (saving for some short time;) and because it shall be a dangerous precedent for Owners of Impropriations, to maintain the Appropriations to be Perfect in all points and circumstances requisite to an Absolute Appropriation, the Appropriations being made of Ancient time 
n Trin. 29 Eliz. in Chancery. Lord St. John and the Dean and Chapter of Gloucester's Case. Vid. Co. 12. par. 3. acc. . The like Resolution was given by the Court in Hunston and Cockett's Case, viz. That whether an Appropriation be good or not, cannot now be called into question, but shall be intended to be good, and to all requisite Circumstances 
o Mich. B Jac. B. R. Hunston and Cockett's Case. Cro. 2. par. .  
(7.) An Appropriation cannot in any case be made by the Patron himself only; yet where the King is Patron, it may be made by him Sole. And although upon every Appropriation there ought to be an Endowment of a Vicar, yet a Vicarage itself Endowed, may (as hath been held by the whole Court) be Appropriated, but not to the Parson, and (as in the Book 21 H. 6.) is such a Vicarage, as may afterwards be dissolved 
p Trin. 16 Jac. B. R. Ward's Case. Poph. 144, 145. . And if a Lease be made of a Parsonage Impropriate by one, who hath not any thing therein during the life of the Incumbent, it will be void; nor can an Appropriation be made to a Church which is Full of an Incumbent, but by Special words 
q Mich. 8 Eliz. Dyer 244. Bishop of. Cou. & Lichf Case. Vid. ibid. Jobson and Michael's Case. Adjudge. in Chanc. acc. Vid. Co. 11. par. a. Co. 10. par. 48. in Lampitt's Case. Vid. 19 Eliz. blow. Com. 500 The Opinion of Manwood in Grendon's Case. acc. Hugh. Abridg. verb. Appropriations. . It hath also been held, That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope had not any power to make any Ordinance against that Statute, by which he hath not any Right to meddle with Advowsons', Benefices, etc. and that by his Bulls he cannot dispense with the Law, though they tend in ordine ad Spiritualia 
r Mich. 16 Jac. B. R. Britton and Wade's Case. Cro. 2. par. 516, 517, 518. .  
(8.) Touching Appropriations there were Three considerable Points in Law, Resolved by the Justices in Grendon's Case: (1) That none is capable of Appropriation but a Body Corporate or politic Spiritual, which hath a Succession: For that the effect of an Appropriation as to the first Institution thereof, was to make the Body politic perpetual Incumbent, and to have the Rectory, and that he hath the Cure of all the Souls of the Parishioners: and therefore he must be a Spiritual person. (2) That the King, Ordinary, and Patron, aught to be assenting unto every Appropriation; and that the Authority which the Pope had usurped in this Realm, was by Parliament, An. 25 H. 8: acknowledged to be in the King; and the King being supreme Ordinary, might of his own Authority and Jurisdiction make an Appropriation without the Assent of the Bishop. (3) That an Appropriation may be made by Apt words, when the Church is Full (as to say) That the Parson who is a Spiritual person, after that the Church shall be void, shall be Parson, and may retain the Glebe, and the Fruits of the Church to his proper use; and that the same shall be a good Appropriation, when the Church shall be void by death or otherwise 
s Pasch. 19 Eliz. C. B. ploughed. Com. 496 to 501, etc. Grendon's Case. .  
(9) It is brought by way of Report to us, That it was the Opinion of the Master of the Rolls in the great Case of Consultation, which was argued in the Exchequer Chamber, the 18 H. 6. 21. a. That an Advowson could not be Appropriate without a Succession, although that the Incumbent purchased the Advowson by licence to hold to his Own use. Where it was further said, That if a Prior were seized of an Advowson to him and his Heirs, and he purchase licence of Appropriation, and that he and his Successors might hold the Advowson to their own use; yet the Advowson shall descend to his Heirs: But in such case, if he would have the Appropriation to be good, it were best to alien the Advowson, and after to re-purchase it to him and his Successors; and then the Appropriation will be good 
t Hugh. Abridgm. verb. appropriate. . All Appropriations have been usually to Corporations or persons Spiritual, and not to Bodies politic, consisting of mere laymen, or Lay-Corporations. And in Alden and Tothil's Case it was in question, Whether the King, since the Statute of 25 H. 8. might by his Letters Patents Appropriate a Church Parochial, which was before Presentative, unto a Lay-Corporation, all the Members of the Corporation being mere laymen: which Case was not then Resolved 
u Trin. 9 Car. B. R. in Alden and Tathi●'s Case. Hugh. ibid. .  
(10.) As a Church Parochial might be Appropriated: so a Church which is Appropriated to a Spiritual Corporation, may become disappropriate, if the Corporation be-dissolved 
x Vid. 3 E. 7. 4. Finch. Comment. 14. acc. . Also if the Advowson of a Church were by licence granted to a Prior and his Successors, and afterwards the same Church were Appropriated to him and his Successors, so as thereby they became perpetual parson's Imparsonees: In that Case if the Wife of a Grantor were endowed of the Advowson, and Presented a Clerk, who was Admitted, Instituted, and Inducted, the Appropriation would be defeated for ever; for the whole Estate of the Parson Imparsonee is thereby avoided: And so it was Adjudged, 2 E. 3. 8. sed Quaere. For in the Case of Lancaster and Lucas 
y Pasch. 33 Eliz. B. R. , it was held by the Court, That in such Case the Church was Disappropriated but during the life of the Wife: and after her death it should remain as Appropriated 
z 33 Eliz. in B. R. Leon. 235. .  
(11.) Sir H. Hobart Chief Justice, in the Case of Colt and Glover against the Bishop of Coventry and Lichfield 
a Mich. 10 Jac. rot. 2642. , says, That the proper and operative word that doth Appropriate, is to make the Patron and his Successors Perpetual Parsons; and in the Case of Wright against Gilbert Gerrard and Richard Hildersham 
b Hill. 15 l. c. rot. 1510. , That the Instrument of Appropriation runs in these words, That they and their Successors (not their Assigns) shall be Parsons, or by Periphrasis hold the Church in proper use; and the words of Appropriating are, that they may hold Ecclesiam & Rectoriam in proprios usus, as in Grindon's Case; and says further, that Appropriations cannot endure longer than the Bodies, whereunto they were first Appropriate, because it carries not only the Glebe and Tithes, but doth also give the Spiritual Function, makes the Parsons of the Church, and supplies Institution and Induction.  
(12.) A Prior was seized of the Advowson of a Parsonage; the Church being void, the Bishop gave him licence to hold it to his proper use, and there was not any Endowment of the Vicarage. The Jury found the Statute of 4 H. 4. of Appropriations: and of 27 H. 8. which gives Priories, etc. to the King: Whether the Appropriation were good, there being no Endowment of the Vicarage: And, whether the Appropriation without the King's licence was good, was the Question. Resolved, That whether the Appropriation be good or not, cannot now be called in question; but it shall be intended to be good, and have all requisite Circumstances: But in this Case, because the Defendant claimeth per Praesentationem Regis ratione Lapsus; Whereas the King, if he had any Title to Present, it was Jure Coronae, the Presentment of the Plaintiff was utterly void, and the Plaintiff had no Title, who brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes 
c Mich. ● Jac. B. R. Hunston and Cocket's Case. .   

CHAP. XXI.  
Of Commendams.  

1. What a Commendam is, or the Legal description thereof.  
2. The King may dispense with the holding of divers Benefices in Commendam, notwithstanding the Canon of the Lateran Council against Pluralities.  
3. Three Degrees of Commendams by the Canon Law.  
4. A description of a Semestral and Temporary Commendatory.  
5. The provision the Pope made in granting Commendams; certain Benefices in the Church of Rome never given in Commendams.  
6. What the Canon Law in Commendams ad Tempus or Perpetuo.  
7. The grand Case of a Commendam at the Common Law, between Kiffin and Ascough, and therein great variety of Learning touching that Subject.  
8. Several Considerations in Law touching Commendams.  
9 An Irish Case, with great variety of Learning, in reference to this Subject.   
(1.) COmmendam (Ecclesia Commendata) is a Benefice or Ecclesiastical Living, which being void, is commended to the charge and care of some sufficient Clerk, to be supplied until it may be conveniently provided of a Pastor: And this was the Original of what we now commonly call Commendams. Durand. de Benefic. lib. 5. cap. 7. That person to whom the Church is thus Commended, hath the Fruits and Profits thereof only for a certain time; whereby the nature of the Church is not changed, but is as a thing deposited in his hands as it were in Trust, being concredited only with the care and custody thereof, which may be revoked. Thus when a Parson of a Parish is made the Bishop of a diocese, there is a session of his Benefice by the Promotion; but if the King gives him power to retain his Benefice, he shall continue Parson thereof, and shall be said to hold it in Commendam 
a Hob. Rob. fo. 144. Latch. Rep. fo. 236, 237. . So that it may properly be thus defined, Commenda est Ecclesiae Custodia alicui Commissa in tempus gratia evidentis necessitatis & utilitatis. Gloss. in verb. Commendare, c. Nemo deinceps, de Elect. in lib. 6. & Andr. in dict. Gloss. For hereby the Bishop commits the care and custody of a Vacant Church to some one, whom he Constitutes as a general Administrator thereof. Corras. de Sacerd. mater, p. 1. c. 6. nu. 3. & dict. c. Nemo. for Commendare in this sense is no other than Deponere. l. Publius, ff. Depositi, & l. Commendare, ff. de verb. Sign. And he to whom the same is so committed is in the Law termed Commendatarius, having the custody of a Vacant Church and the Fruits thereof only for a time; and the Beneficium Commendatum we call Commendam. Petrus Gregorius makes this Commendam of a Church to be on a double account, viz. either in utilitatem Ecclesiae, or Commendatarii; In the former case, he says, the Commenda gives no Title to the Commendatary of the Benefice, but is only a Custody or Trust which may be revoked, and consequently repugnant to the nature of a Benefice, which is Perpetual: In the other Case, the Benefice is held to be a Commenda made in utilitatem Commendatarii, which he may hold and possess as long as he lives. Petr. Greg. de Benef. cap. 10. nu. 13.  
(2.) By a Canon of the Lateran Council no person Ecclesiastical could hold Two Benefices with Cure of Souls simul & semel, but by the taking of a Second the former would be void. Cons. Later. & F. N. B. 34. L. & Co. par. 4. 75. & Lindw. Consil. Provin. de Praebend. cap. Audistis; yet might the King it seems by the Common Law, notwithstanding that Canon, grant Dispensations to hold divers Benefices in Commendam; as at this day he may notwithstanding the Stat. of 21 H. 8. For the Statute of 25 H. 8. that takes away the Pope's usurped power of granting Commendams, etc. in this Realm, doth vest it in the Crown de jure, as also doth the Statute of 1 Eliz. and (from and under the Crown) in the Archbishop of Canterbury, his Commissaries, etc. And as heretofore the Pope did by Usurpation in this Realm, so now de jure & ex Regali Authoritate, may the King grant unto a Consecrated Bishop a Dispensation Recipere & obtinere Beneficium cum Cura animarum, and to hold the same in Commendam 
b Co. par. 4. 75. Holland's Case. .  
(3.) In the Case of Colt and Glover against the Bishop of Coventry and Lichfield, according to Sir Hen. Hobart Lord Chief Justice, out of the Canons, Commendams are said to be of Three Degrees, one Semestris, another Perpetua vel ad vitam, a third Intermedia or Diuturna, sed Limitata; and sometimes called Temporaria or Temporalis, vel ad certum Temporis spatium Limitata. Clem. v. Extra. l. 3. de Praebendis, c. 2. The Commenda Semestris did arise out of natural equity, that in the time of the patron's respite given him to Present, the Church should not be without a Provisional Pastor, which was a Law of Necessity agreeable to the Law of Nature. But after the Lapse justly incurred, the Commendam is to cease, or then the Ordinary may Collate. The Commenda Perpetua vel ad vitam, is that which cannot be for a less time than for the life of the Commendatary absolute. And the Commenda Intermedia, diuturna, or Temporalis, vel ad certum temporis spatium Limitata, is, when a Commenda is to a person not for his life absolutely, but so long as he shall be Bishop of such a place, or the like. Each of which Degrees of Commendams doth refer to the Commendam obtinere, capere, & apprehendere. A Dispensation Commendam recipere, which shall make a Title, aught to have three Incidents; (1) It ought to be, Recipere & convertere in usus proprios. (2) It ought to be ad utilitatem Ecclesiae, vel Parsonae. (3) It ought to have the Assent of the Patron. And he that is but mere Commendatarius is Accountable to the Ordinary. Vid. Case Evans and Ascough, in Latch. Rep. And not to the Commendam retinere, which in truth is no Commendam, though commonly so called; but is only a Faculty of Retention and Continuation of the Benefice in the same person and state wherein it was, notwithstanding something intervening, as a bishopric or the like, which without such a Faculty would have avoided it.  
(4.) The Semestral Commendatary is not reputed Praelatus, but Procurator & Administrator, habens titulum Canonicum; It doth make Fructus suos, but ad providendum sibi & Ministris; and what remains, is to be converted to the use of the Church. Greg. X. in Concil. Lugd. An. 1275. Gloss. in cap. Nemo. 15. De Electione in Sexto. And John d'Atbon, 
An. 1248.  upon Othobou's Canon or Constitution De Commendis Ecclesiarum, says, That Commendare idem est quod Deponere, seu Custodiae Committere: And all agree that such a Commendatary is not Praelatus, but Procurator; habet tamen Legitimam Administrationem ad Colligend. & providend. Ministris; ea vero quae supersunt, ad utilitatem Ecclesiae convertenda. Commendare (ut ait Papin) nihil aliud est quam deponere. l. Lucius, ff. Deposit. & l. Commendare, ff. de verb. Sig. & l. Publia, ff. Deposit. & Gloss. ibid. But as to a Perpetual Commendam, Perpetuity, and the disposal of the Fruits must concur 
c Gomez. in Regul. de Trien. poss. . And as a Patron cannot Present to a Church Full, so neither can a Commendam be made to a Church certain that is then Full; for there is no difference betwixt a Commendam and a Presentation, but that the one Presents the Parson to the Church, the other commits the Church to the Parson, both being incompatible when the Church hath his proper Rector; The Canons also speaking of Commendams, rely much upon Ecclesias vacantes, necessitatem & utilitatem Ecclesiae vacantis. And Commendams were not made anciently in general terms, to any Churches uncertain, but to some certain Church then void. Also the patron's consent is necessary to a Commendam, secundum omnes, Patroni consensus, & omnium qui laedi possunt, requiritur; And again. Quod satis observant Praelati, qui nisi Praesentati per Patronos, non faciunt Commendas. Gloss. in Concil. Lugd. & Othob. Provin. Hob. Rep. in dict. Cas. Colt and Glover, vers. Bishop of Covent. and Lichfield. Likewise, it is further asserted by Sir Hen. Hobart in the Case aforesaid, That the Temporary Commenda brings with it so many Incongruities, Inconveniences, and Absurdities in Law, as cannot be born; for thereby the Church is neither altogether void, as it remains in the Case of a Commendam Semestris, which is but a Sequestration of Fruits and Cure till the Patron Presents; neither is the Church absolutely Full, for than it should be Plena & Consulta, h. c. plena de possessore, & consulta de Rectore 
d Hob. ubi supr. .  
(5.) Commenda in the Canon Law hath a nigh affinity to Collation: Rebuff. in §. Statuimus, in ver. conferantur. de Collat. and is a Canonical Institution, or a Canonical Title: cap. Dudum, in 2. de Elect. Etsi in titulum non detur Ecclesia, and when the Commendatary dies, the Benefice is void, ut alia in titulum possessa: Rebuff. de pacif. Possess. nu. 42, 43, 44. The Pope was wont to provide by a Commendam, when he gave a Benefice in Custodiam, that he that had the Custody thereof, should not thereof have fructus suos: cap. Nemo, de Elect. in 6. but should restore the same: Can. placuit 10. q. 3. unless he expressed in the Grant (as he often did) that the Commendatary should convert the Fruits thereof to his own use. It is in Law provided by the Commendam, that the Commendatary shall not be, nor said to be Titularius Ecclesiae concessae, because he hath another at the same time, and together with that he cannot aliam habere in titulum: cap. dudum, in 2. de Elect. cap. fin. 21. q. 1. For the Law compares the Relation that is between a Rector and his Church to that of Man and Wife, and in express terms calls it Matrimonium; cap. sicut vir. q. 1. and says, it is as odious to have more Benefices than one at once, as more Wives than one at once; cap. de multa de Praebend. whence it may aptly be inferred, That Plurality is a kind of Spiritual Bigamy or Polygamy. Moreover, by the Canon Law a Commendam may be either for a certain time, or for life: cap. Extirpandae, §. quia vero. De Praeben. & c. nemo. de Elect. in 6. And during the vacancy of a See the Chapter may grant the Commendam ad tempus: c. significatum. de Praeb. & dict. c. nemo. If the Commendam be granted in Perpetuity or for life, it is vice tituli: Nam ad tempus Collatio fieri nequit Beneficii: c. si gratiose. de Rescript. & c. satis perversum. 66. Dist. In the Church of Rome there are certain Benefices which were never wont to be given in Commendam, such as that of the Holy Ghost in Sicily, St. John of Jerusalem, St. Anthony, the Blessed Virgin Mary, and others; and this by a Constitution of Pope Alexander the Sixth as a mark of grace; because they were given to the Fraternity of these Orders in titulum. Rebuff. de Commendis, nu. 41. Prox. Benef.  
(6.) Whether any man inferior to a Bishop, may Ecclesiam Commendare, is a Question moved by Rebuffus, who holds it in the Affirmative, provided it be a Commenda only ad Tempus, that is, only for Six months: Rebuff. Respon. 71. de Commenda. which opinion Panormitan seems to be of, by saying, Inferiorem à Papa non posse Perpetuo Commendare, sed ad Tempus sic: Panorm. in c. si constiterit, in 1. notab. de Accusat. For the Canonists of the Romish Church do hold, That Commendare in perpetuum potest solus Papa, Ad tempus sex mensium quilibet Ordinarius potest: Likewise Panormitan says further, That a Chapter (Seed vacant) possit usque ad sex menses Commendare: Panor. & Felin. in c. cum olim, 11. q. the Major. & obed. & Jo. Francisc. in Tract. de Offic. & potest. Capituli Sede vacant. in 2. part. q. 3. whence Rebuffus concludes, that any other qui Beneficia conferre potest may do the like; it being as a Rule in Law, That illud videtur permissum, quod non est prohibitum: c. nam concupiscentiam. de Consti. & L. praecipimus. C. de Appellat. The Canon Law, to which only we are beholding for the clearest apprehensions we can possibly have of Commendams, allows a very extensive Latitude to the Pope in the granting and revoking thereof; but this doth not concern us, further than as the Pope's Ecclesiastical power, heretofore exercised in this Realm by way of Usurpation, is now vested in the King de jure; yet it will be agreed on all hands, That a Commendam in the very nature of it, is merely and properly Custodial, that Church or Benefice being then granted in Commendam, quando in custodiam, seu Custodiae causa datur: c. nemo. de Elect. in 6. And as he who hath only the Custody of a thing, non facit fructus suos: so neither he (according to the Canon Law) who hath a Commendam, without the Pope's special grant thereof to the Commendatary: c. placuit. 10. q. 3. Rebuff. de Commenda, who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati, sumere ex eo alimenta, & debita persolvere, sicut is qui titulum habet: c. 1. de Solutio. hoc afferit Archidiac. in cap. qui plures. 21. q. 1.  
(7.) The grand Case of a Commendam was that of Evans and Kiffin against Ascuth, which being two days argued by the Judges, and by Noy Attorney, is acutely and succinctly Reported thus, viz. In Trespass: Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland: But before Consecration or Confirmation, he obtained a Patent with large words, Non obstante retinere valeat in Commendam the said Deanary, etc. And afterwards he was chosen Bishop of Bristol; and then also before Installation he obtained another Patent, with a more ample Dispensation of retaining the Deanary in Commendam. It was Agreed by all, That the Church or Deanary, etc. in England shall be void by session, if the Parson, or Dean, etc. be made a Bishop in Ireland. For the Canon Law in that is one through all the World. Also Ireland is governed by the Laws of England, and is now as part of England by Subordinacy. Note well 45 E. 3. 19 b. Confirmation under the Great Seal of England is good in this Case; Confirmation under the Great Seal of England of Presentation to a Church in Ireland, of the Heir of the Tenant of the King; and that a Dispensation under the Great Seal of England is good in this Case, without any Patent of it in Ireland, vid. 8 Ass. 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good. Note 20 H. 6. 8 Scir. fac. sued in England to Repeal a Patent under the Great Seal of Ireland, vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England. Note, Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King, under the Great Seal of England; yet the King may let them be chosen per Congé d'Eslire, etc. (1) Noy Attorney Argued at Bar, and so stated the Points of the said Case by themselves: If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop; for it is Agreed, That a Commendatary Dean by Recipere in Commend. cannot Confirm, because he is but a Depositarius. Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name, and by such a Commend. he may take the profits, and use Jurisdiction, and yet is not a Dean complete. Note, he may make a Deputy for Visitation, but not for Confirmation of Leases. Note, if there be two Deans in one Church, both aught to Confirm. Vid. Dy. 282. Co. Inst. 30. a. (2) The Second point, if such a Bishop be chosen to another bishopric, if now the first Church in Commend. (admitting that there was a Full Incumbent) be void presently by the Election and assent of the superior (viz.) the King: And it seemed to him that it was, because there need not be a new Consecration; and he vouched Panormitan, 2. par. 101. The Bishop of Spires was chosen Bishop of Trevers, and had the assent of the Pope, and that he came to Trevers, and there found another in possession; and he would have returned to the former bishopric, and could not. He also Cited 8 Rep. trollops Case, That the Guardianship of the Temporalties cease by the Election of a new Bishop. Note, that sergeant Henden, who argued on the contrary, vouched Mich. 4 Jac. May, Bishop of Carlisle made a Lease to the Queen, and a Commission issued out of the Exchequer to take it, and the Dean and Chapter Confirmed it before the Inrolment of it; and yet Adjudged good: That Case was for the Castle of horn. First, the Judges having Argued two days, 
Hill. 22 Jac. B. R. rot. 1169. Evans and ●iffin against Asc●ugh. Noys Rep.  Resolved (1) That all Commendams are Dispensations, and that session commenced by the Canon and Council of Lateran. (2) That the King may dispense with that Canon, 11 H. 7. 12. For the Pope might, and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris, and not by Introduction novi Juris; and by that Statute a concurrent power is given to the Archbishop of Canterbury, and may be granted to the King, or by the Archbishop, etc. (3) That the Dispensation after Election to the first bishopric and before Consecration, etc. and also the Dispensation after Election to the second bishopric, and before Confirmation, is good enough in both Cases, and he remains a good Dean to Confirm, etc. and afterwards the judgement in the Case, being an Action of Trespass, was given accordingly.  
(8.) A Commendam is to be granted Necessitate evidenti, vel utilitate Ecclesiae suadente, and in the Infancy of the Church quando defuerunt pastors they were necessary: A Commendam ordinarily is but for six months, and he that hath it is Custos only; the other is extraordinary, and that is for life, and he is an Incumbent: The King by his Prerogative Royal may grant a Commendam without any Statute; 
Hill. 14 Jac. in the Exchequer, Colt vers. Glover. Roll. Rep.  yet if such Commendam shall be good, it may be very mischievous to the Patron: It is it seems agreed in the Books of the Common Law, that the use of Commendams in their first Institution was lawful, but not the abuse thereof; and that a perpetual Commendam, 
Hill. 39 Eliz. B. R. Armiger and Holland's Case. Cro. par. 1.  viz. for life, was held unlawful, and condemned by a Council of 700 Bishops. It is likewise Reported to us, That where the Incumbent of a Church was created a Bishop, and the Queen granted him to hold the Benefice which he had in Commendam: It was the Opinion of the Justices, That the Queen had the Prerogative by the Common Law, and that it is not taken away by the Stat. of 35 H. 8.  
(9 
Pasch. 9 Jac. C. B. in Ireland, between the King and Cyprian Horsefall and Robert Wale. Davis Rep. ) In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale, on a Special plea pleaded by Wale the Incumbent, the King's Attorney demurred in Law: The Case in substance was this, viz. the Corporation of Kilkenny, being Patrons of a Vicarage within the diocese of Ossery, Presented one Patrick Fynne thereunto, who was Admitted, Instituted, and Inducted. After that, during the Incumbency of the said fin; Adam Loftus Archbishop of Dublin, and Ambrose Forth Doctor of the Civil Law, being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland, according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall, than Bishop of Ossery, That the said Bishop unum vel plura Beneficia, curata vel non curata, sui vel alieni Jurispatronatus, non excedentia annuum valorem quadraginta Librarum, adtunc vacantia vel quae per imposterum vacare contigerint, perpetuae Commendae titulo adipisci, occupare, retinere, omnesque fructus ad Familiae suae sustentationem convertere, possit, juribus sive institutis quibuscunque in contrarium non obstantibus. Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland, according to the Statute of 28 H. 8. c. 16. After this, viz. 20 May, An. 38 Eliz. Patrick Fynne the Incumbent died, whereby the said Vicarage being void, and so continuing void by the space of Six months, whereby the Bishop had power to Collate thereunto by Lapse, the said Bishop by virtue of the said Faculty or Dispensation adeptus est, occupavit, & retinuit the said Vicarage perpetuae Commendae titulo, and took the Fruits thereof to his own use, until the 13 Febr. An. 1609. on which day the Bishop died: After whose death the said Cyprian Horsefall, having purchased the next Avoidance of that Vicarage, Presented the said Wale, who was Admitted, Instituted, and Inducted: And afterwards the King Presents one Winch, who being disturbed by the said Horsefall and Wale, the King brought a Quare Impedit. Whether the said Bishop, when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation, were thereby made complete Incumbent thereof, so as the Church being full of him, no Title by Lapse could devolve to the King during the life of the Bishop, was the Principal point moved and debated in this Case. And in the Argument of this point (which was argued at the Bar first by the Counsel at Common Law, and then by two Advocates well versed in the Canon Law, and at the Bench by all the Justices) Two things were chief considered by those who argued for the King's Clerk: (1) Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty. (2) What effect or operation that Faculty or Dispensation shall have by the Law. As to the First, they held clearly for Law, That a Bishop by the Ancient Ecclesiastical Law of England, may not hold another Benefice with Cure in his own diocese: and if he hath such Benefice before his promotion to the bishopric, that it becomes void when he is created a Bishop. And this is the Ancient Law of England, as is often said in the Bishop of St. David's Case, 11 H. 4. & 41 Ed. 3. 5. b. agrees therewith. The Reason is, for that the Bishop cannot visit himself, and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time; as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9 That if a Parson be made a Dean, the Parsonage becomes void, for that the Dignity and the Benefice are not compatible. So no Ecclesiastical person, by the Ancient Canons and Councils, could have Two Benefices, with Cure simul & semel, but the first would be void by taking asecond. And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 
21 H. 8. c. 13.  8. cap. 13. which was made in Affirmance of the Ancient Law, as appears in Holland's Case. Co. par. 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. & N. Br. 34. l. And the Text of the Canon Law, which is the proper Fountain of this Learning, proves it fully; Decretal. de Praeben. & Dignit. c. de multa: Where it is said, De multa providentia fuit in Lateranensi Concilio prohibitum, ut nullus diversas Dignitates Ecclesiasticas, vel plures Ecclesias Parochiales reciperet, contra Sanctorum Canonum instituta, etc. Praesenti Decreto statuimus, ut quicunque receperit aliquod Beneficium, curam habens animarum annexam, si prius tale Beneficium habebat, eo sit ipso jure privatus, & si forte illud retinere contenderit, etiam alio spolietur, etc. And with this agrees the Text in Decret. Caus. 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest. So that it is evident, that the Bishop could not by any Law have or retain that Benefice within his diocese without a Dispensation, which is Relaxatio Juris, and permits that to be done, which the Law had before prohibited. It is to be observed, That Commenda est quaedam provisio, and therefore Gomez. in Reg. de Idiomate, saith, That Commendare est Providere, & quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus. And by the Canon Law the Consent of the Patron is requisite, where a Benefice is given in Commendam. Lib. 6. Decretal. c. Nemo. where the Gloss saith, Ad Commendam vacabitur Patronus, & si qui alii ex tali Commenda laeduntur. Also in Constit. Othob. de Commendis it is said expressly, That Consensus Patroni ad Commendam requiritur. The Canon Law holds these Commendams as very prejudicial, and that in divers respects; and therefore says, That Experientia docet, occasione Commendarum cultum Divinum minui, Curam animarum negligi, hospitalitatem Consuetam & debitam non servari, ruinis aedificia supponi, etc. 6. Extra. cap Pastoris. And whereas it is said of a Bishop, That he is to be unius uxoris vir; the Canonists expound it, That he shall have but one bishopric, or only one Cure, for they say, that per Commondam Bigamia contrahitur in Ecclesia: Therefore it was well Resolved by that good and pious Bishop, who (when another Benefice was offered him to hold in Commendam) said, Absit ut cum Sponsa habeam Concubinam. But for the clearer understanding of the nature and difference of these Commendams, it is further to be considered, That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius; and therefore Decret. caus. 21. q. 1. Qui plures, the Gloss there saith, Commendare nihil aliud est quam deponere. This Commenda or Commendatio Ecclesiae is divers, according to the nature of the Church, and the Limitation or Continuance of the Commenda: for a Commenda may be of a Church either Curatae or non Curatae; and it may be either Temporanea, viz. for a time certain, as for Six months, or Perpetua, viz. during the life of the Commendatary. A Church with Cure may not be given in Commendam, unless upon evident necessity, or the benefit of the Church, viz. to supply the Cure till provision be made of a sufficient Incumbent: And therefore by the Council of Lions it was provided, That a Parochial Church should not be given in Commendam, nisi ex evidenti necessitate, vel utilitate Ecclesiae; & quod talis Commenda ultra semestris temporis spatium non duraret: & quod secus factum fuerit, sit irritum ipso jure, etc. 6. Decretal. c. Nemo. But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary, vel ad mensam: In that sense the Canonists say, That Commenda is quasi comedenda, quia Ecclesiae quae traditur in Commendam quasi comeditur & devoratur, and such a Benefice may properly be given in perpetuam Commendam. Summa summar. tit. Commenda, art. 1, & 2. And by the Rule of the Canon Law, he that comes in per Commendam, is not Praelatus, sed Procurator tantum, & est nisi Custos, seu Administrator, & jus in Ecclesia non habet. 6. Decretal. c. Nemo. & Constit. Othobon. de Commendis, fo. 65. And therewith agrees 27 H. 8. 15. where it is said, That the Cardinal of York had the Abbey of St. Alban in Commondam, and yet was not the Abbot. In this Case of a Commendam in Davis Rep. the Original or invention of a Commendam is ascribed to Pope Leo 4. An. Dom. 848. aut eo circiter, as appears lib. Decretal. caus. 23. q. 2. where it is said, Vnde Leo 4. scribit, Qui plures Ecclesias retinet, unam quidem Titulatam, alteram vero sub Commendatione tenere debet: For by the Ancient Canons and Councils a man could have but one Benefice, and yet it is by experience found convenient, that sometimes, viz. in case of Necessity or utility of the Church, a man may have the Charge and Fruits of more Benefices than one; therefore was that Distinction invented and allowed, that although a man shall have but one Benefice in Titulo, yet he may have other Benefices in Commenda, viz. That another Benefice may be commended and committed to his Custody and Cure, until it be provided with an able Incumbent. But afterwards, there being great Abuses found in the granting of these Commendams by the Ordinaries (for omnium rerum quarum est usus, potest esse abusus, virtute solum excepta, says Aristotle) another Canon was made in the Council of Lions, An. Dom. 1274. for reformation thereof, as appears lib. 6. Decretal. de Elect. & Elect. potesta. c. Nemo. Nemo deinceps Parochialem Ecclesiam alicui non Constituto in legitima aetate vel Sacerdotio Commendare praesumat; nec tali, nisi unam, & evidenti Necessitate vel Vtilitate Ecclesiae suadente. Hujusmodi autem Commendam rite factam declaramus ultra Semestre temporis spatium non durare, etc. But the Gloss there saith, That Ista Constitutio non comprehendit Romanum Pontificem, ideo Romanus Pontifex potest Perpetuo Commendare. So that the Pope, notwithstanding that Canon, had power to give Benefices in perpetuam Commendam. And indeed after the said Council of Lions, as the Pope had reserved to himself the sole power of giving Benefices in perpetuam Commendam, so he reduced that power into act, and used and practised the same in all Realms of Christendom: Specially the Popes that were resident at Avignon in France in the times of King H. 2. Ed. 1. Ed. 2. Ed. 3. were very liberal not only in granting these Provisions (contrary to our Statutes made in the times of King Ed. 1. & Ed. 3.) but in giving all sorts of Ecclesiastical Benefices in Commendam perpetuam. And as at first it was done for the support of the Dignity of Cardinals, as Pope Clement. 6. professed in his Epistle to Ed. 3. Hist. Walsingham, fo. 150. b. yet afterwards these Favours were purchased by other Ecclesiastical persons of all degrees, in all Nations, specially in England and Ireland. And whereas the Canon Law says, That a man hath a Cononical Title by virtue of a Commendam, that must be understood de Commenda perpetua, and not the Commenda Temporali; for the Commenda Temporalis is but a kind of Sequestration, and may be granted by every Ordinary pro tempore Semestri; and therefore such a Commendatary non est Praelatus, nec Maritus Ecclesiae, nec facit Fructus suos, sed est Administrator tantum, & Custos Ecclesiae. And such a Commenda non est titulus, nec facit titulum, sed est quoddam depositum, until the Church be provided with a sufficient Incumbent; and therefore such a Commenda is commonly granted when the Patron doth not Present an able person, or when the Church is Litigious. But the Commenda perpetua, which continues during the life of the Commendatary, cannot be granted by any inferior Ordinary, but only by the Pope in such Countries where he hath Jurisdiction, or by the King or his Delegates in this Realm, or such whose power therein is derived from him or confirmed by him. And this Commenda est titulus Canonicus; nam militat eadem ratio in perpetuis Commendis, quae in aliis Titulis. Lib. 6. de Electionib. c. Nemo. And so it hath been often adjudged in Rota, as Gomez affirms in Regul. de Trien. Possess. where he argues this point Pro & Con at large, and where he saith, That the Faculty of a perpetual Commendam is amplissima dispositio, & habet ubertatem verborum, viz. Licentiam & Facultatem fructus omnes percipiendi, & in proprios usus Convertendi, etc. Quae verba important Collationem & Titulum, & non Simplex Depositum.   

CHAP. XXII.  
Of Lapse.  

1. What a Lapse is; the gradations, and Original thereof.  
2. The difference between the Canon and Common Law, as to the time of Lapse; and when the Six months shall begin.  
3. The King is Patron Paramount of all the Churches in England.  
4. In what Cases the Patron is to take notice of the Avoidance at his peril, or not; and how the Six months is to be computed by the days.  
5. A Lapse is not an Interest, but a Trust or Administration, and may not be transferred or granted over.  
6. How or from what time the Six months shall be computed before the Lapse incur.  
7. Whether a Bishop may Collate by Lapse after Six months, upon failure of the Clerks showing his Letters of Orders, or his Letters Missive or Testimonial?  
8. In what case Tempus occurrit Regi in point of Lapse.  
9 In what cases the King having Title of Lapse may lose his Presentment.   
(1.) LApsus, or Lapse, is a slip or departure of a Right of Presenting to a void Benefice, from the Original Patron neglecting to Present (within Six months' next after the Avoidance) to the Ordinary. Whence it is commonly said, That that Benefice is in Lapse or Lapsed, whereunto he that ought to Present, hath omitted or slipped his opportunity 
a An. 13 Eliz. c. 12. . This Lapse may happen and be, the Patron being ignorant of the Avoidance, as well as if he were acquainted therewith or privy thereto, except only upon the Resignation of the former Incumbent, or the Deprivation upon any cause comprehended in the Statute of 13 Eliz. cap. 12. In which cases the Bishop ought to give notice thereof unto the Patron. In this matter of Lapse there are Three gradations, ab Inferiore ad Superiorem, after the neglect of the true Original Patron, upon whose default (1) the Bishop of the diocese, within whose precincts the vacant Benefice lies, shall Collate, unless the King be Patron. (2) If the Bishop Presents not within the next Six months, than the Metropolitan shall Present: And (3 lie) if he Present not within the time by Law limited, 
Dr. & Stud. 125. Co. par. 4. 17. & par. 5. 58. Specot's Case. Action.  than the King shall Present, for that he is Patron paramount of all the Benefices within his Realms; as also because the King and his Progenitors, Kings of England, have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts, whence lies no Appeal to any. Foreign pretended Power. The Rosell Summist indeed makes more Gradations in this matter, as from the Patron to the Chapter, from the Chapter to the Bishop, from the Bishop to the Metropolitan, from the Metropolitan to the Patriarch, and if none such, then to the Pope. Sed hoc nihil ad nos, part of whose happiness is an Index Expurgatorius of the last recited premises. And although the Law is, That the Ordinary shall Present, in case the Patron doth not within Six months; yet the Law withal is, That if the Patron Present before the Ordinary put in his Clerk, the Patron of right shall enjoy his Presentation 
b Dr. & Stu. cap. 36. . And if the Ordinary surcess his time limited, he loses his power as to that Presentation, specially if it be devolved to the King: And when the Presentation is in the Metropolitan, he shall put in the Clerk himself, and not the Ordinary; and so there is no default in the Ordinary, though he Present not the Clerk of the Patron, if his time be passed, in which case there is no remedy for the Patron against the Ordinary 
c Dr. & Stu. ibid. . This matter of Lapse is of very ancient practice, for Mich. 3. E. 1. B. Rot. 105. Staff. the Bishop of Coventry and Lichfield pleaded a Collation by Lapse Authoritate Concilii against the Prior of Landa to the Church of Patingham. And 6 E. 1. Rot. Paten. membra 25. in a Quare non admisit by the Abbot of St. Mary Eborum against the Bishop of Norwich, the Bishop made a Title by Lapse, viz. That he Collated Authoritate Concilii post Lapsum semestre, etc. And there afterwards in the judgement it is said, Quia tempus semestre Authoritate Concilii non incipit versus Patronum nisi à tempore. scientiae, mortis, etc. (Q. what Council is here meant or intended) For P. 9 E. 1. B. Rot. 51. it appears that Lapse was given per Concilium Lugdunense post tempus semestre: The like also in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby's Case, 62 
d Roll. Abr. verb. Present. lit. O. p. 354. ; yet in Bracton the Lapsus temporis is the Constitutione Lateranensi 
e Bract. lib. 4. fo. 241. . And yet Britton, foe 225. speaks of the Tempus Semestre or the Six months according to the Council of Lions; But Mr. Selden in his Book of Tithes, 390. says, That the Manuscripts of Breton have Lateran for Lions; and in fol. 388. holds, That this Lapse was received in the Laws of this Realm out of the General Council of Lateran, held in the year 25 H. 2. as the Learned sergeant Roll observes in his abridgement on this word of Lapse, where he also citys Hovenden, foe 326. asserting, That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in these words or to this effect, viz: Cum vero Praebendas Ecclesias seu quaelibet Officia in aliqua Ecclesia vacare contigerit, vel si etiam mod● vacant, non diu maneant in suspenso, sed infra Sex menses personis, quae digne administrare valeant, conferantur; si autem Episcopus, ubi ad eum spectaverit, confer distulit, per Capitulum Ordinetur. And before the said Council the Patron was not limited to any time, but might Present at his pleasure without any Lapse 
f Seld. de D●cimis, 387. & Bract. lib. 4. 241. . Touching other precedents of great Antiquity relating to this Subject of Lapse, the Reader is here referred to that Learned sergeant roll, in the forecited place of his abridgement. And although according to the Gradations aforesaid the Lapse devolves from the Patron to the Bishop, from the Bishop to the Archbishop, from the Archbishop to the King; yet if after Lapse incur to the Metropolitan, and before Collation by him made the Patron Present, he may Present to the Ordinary of the diocese, without Presenting to the Metropolitan. Contra H. 41 El. B. R. per Popbam 
g Roll. Abr. ver. Presentm. lit. N. ; for thereby he seems to redeem his neglect. But yet if Lapse devolve to the King, and then the inferior Ordinary Collate by the Lapse, and his Clerk be Instituted and Inducted, it seems this doth not make a Plenarty against the King to put him to his Quare Impedit, but he may notwithstanding Present and oust the Clerk of the Ordinary; for when Lapse incurs to the King, it cannot be taken away by the Ordinary: And then when the Ordinary Collates without good Title, it makes not any Plenarty against him who hath the right as the King hath to Present; for a Lapse incurring to the King is not like that which incurs to the Metropolitan 
h Rol. ibid. lit. Q. nu. 21. . But if a Patron Present, and his Clerk be Instituted, and remain Eighteen months without Induction, in that case there doth not any Lapse incur to the King; for the King hath not any Lapse, but where the Ordinary might have had it before 
i Hob. Rep. 20●. . But if a Bishop dies, whereby the Temporalties are in the King's hands, if during that time the Six months' pass, whereby a Lapse happens, the King shall have it, and not the Guardian of the Spiritualties 
k Bract. l. 5. fo. 404. §. 10. . Nor doth an Admittance of a Resignation by Fraud, take away the King's Title; for in Comber's Case against the Bishop of Cicester, where the Issue in a Quare Impedit was, If S. R. by covin between him and C, and R. did Resign into the hands of the said Bishop, if the King hath Title of Lapse, and a Resignation be made by fraud, and one Admitted, this shall not take away the King's Title, for if the King's Title appear upon Record, then shall go out a Writ for the King; but otherwise it is upon matter of Evidence, the King doth lose his Presentation as well by resignation as by death, where he hath Title to Present by Lapse, and doth not, except the Resignation be by Fraud 
l Trin. 6 Jac. Rot. 1629. Comber vers. Episc. Cicest, Brownl. Rep. par. 1. Actions on Q. Imp. . And in the Case of the Queen and the Archbishop of York and Bucks, it was Resolved by the Justices, That a Collation, although double or triple, cannot be an Usurpation against the King to put him out of an Advowson 
m Trin. 33 El. B. R. Cro. par. 1. .  
(2.) The Canon Law allows Two months more to an Ecclesiastical, than to a Lay-Patron, ere the Lapse shall be incurred; the former having by that Law Six months to Present, the latter but Four. Summ. Angel. tit. Jus Patronat. §. 16. So the Law of Scotland: Pars. Couns. par. 1. c. 2. We need not inquire into the Reason of that difference or disproportion; let it suffice the Laity, That it was the Canonists pleasure to have it so, for reasons best known to their own interest; the Common Law impartially levels them both to one and the same equal standard of Six months. By the Common Law of England, as well Clerks as laics have Six months to Present before the Lapse incur: Dr. & Stu. 116. b. Per la Com. Ley De Scoce Laici Patroni quadrimestre, Ecclesiastici vero Sex mensium spatium habent sibi concessum ad Praesentandum personam idoneam Ecclesiae vacanti. Skene. Regiam Majestatem, 10. b. But Jac. 6. pl. 1. cap. 7. Pl. 7. cap. 102. pl. 12. cap. 119, 158. Concedit Patrono Laico spatium Sex mensium, infra quod Praesentare debet. The Question is not so much, when the Term shall end and determine, as when it shall commence, and from what time the Six months shall be computed. The Answer falls under a double consideration, or is diversified according to the divers manners of Avoidances; for if by Death, Creation, or session the Church be void, than the Six months shall be computed from the Death, Creation, or session of the last Incumbent, whereof the Patron is to take Notice at his peril: But if the Avoidance be by Resignation or Deprivation, than the Six months shall begin from the time of Notice thereof given by the Bishop to the Patron, who is not obliged to take knowledge thereof from any other, than by signification from the Bishop 
n Dr. & S● cap. 31. . But in case the Avoidance were caused by an Union (for so it might be) than the Six months should be computed from the time of the Agreement upon that Union; for in that case the Patron was not ignorant of, but privy to the Avoidance; for there could be no Union made, but the Patron must have the knowledge thereof; and than it was to be appointed who should Present after the Union, as whether one or both, either jointly or by turns one after another, as the Agreement was upon the Union 
o Dr. & 3. ibid. .  
(3.) The Continuance of a avoidance of a Church by the several Lapses of Patron, Bishop, and Archbishops, derives the Title of Presentation at last to the King as Patron paramount of all the Churches in England; and wherever the Original Patron by Law ought to take notice of a avoidance at his peril, there and in such case by a Non-Presentation within Six months from the time of such avoidance the Lapse will ever incur: And generally by the Admission, Institution, and Induction to a Second Benefice, Prima Ecclesia vacat de persona of the Incumbent, & vacans continuat till new Induction 
p Mich. 9 Car. C. B. rot. 441. The King and the Bish. of Canterbury and Pryst's Case. Cro. 1. par. 258. . But when an Archbishop, Bishop, or other Ordinary hath given a Benefice of right devolute unto him by Lapse of time, and after the King Presenteth, and taketh his Suit against the Patron, who possibly will suffer that the King shall recover without Action tried, in deceit of the Ordinary or the possessor of the said Benefice; In such and all other like cases, where the Kings Right is not tried, the Archbishop, Bishop, Ordinary, or Possessor, shall be received to counterplead the Title taken for the King, and to have his Answer, and to show and defend his Right upon the matter, although that he claim nothing in the Patronage 
q An. 25 Ed. 3. cap. 7. : so that the Ordinary may Counterplead the King's Title for a Benefice fallen to him by Lapse. Also when the King doth make Collation or Presentment to a Benefice in another's Right, the Title whereupon he groundeth himself, may be well examined, that it be true; which if before judgement it be by good information found to be otherwise, the Collation or Presentment thereof made may be Repealed, whereupon the true Patron or Possessor may have as many Writs out of Chancery as shall be needful. There are some 
r St. 25 Ed. 3. c. 3. St. 13 R. 2. 1. St. 4 H. 5. 21.  Statutes (the King not being bound by Lapse of Time, for nullum Tempus occurrit Regi) which are good remedies and reliefs for the Ordinary that hath Collated by Lapse, as also for the Clerk that is Collated; for otherwise a Common person might by Practice have turned out a lawful Collatee: to which purpose the Lord Hobart doth instance in a Case; A Common person no true Patron Presents within Six months, and the true Patron himself Presents not in time, whereupon the Ordinary Collates by the Lapse, against whom the Pretender brings a Quare Impedit, because his Clerk was refused, wherein he must needs prevail, if his Title be good: and it must be taken for good, because neither Ordinary nor Incumbent could deny it; for de non apparentibus, & de non existentibus eadem est ratio; which Inconvenience is remedied by the said Stat. of 25 E. 3. c. 7. Note, that Lapse doth not incur to the Ordinary by reason of his not examining the Clerk within Six months. Trin. 3 Jac. B. R. inter Palmer & Smith. Resolved per Cur.  
(4.) If a Plea be depending between Two parties, and it be not discussed and determined within Six months, the Bishop may Present by Lapse, and he that hath the Right to Present, shall according to the Statute recover his damages 
s Westm. 2. cap. 5. Term. Law, verb. Quare Imp. . But it is expressly provided by the Statute of 13 Eliz. 12. That no Title to Collate or Present by a Lapse shall accrue upon any Deprivation ipso facto, but after Six months after Notice of such Deprivation given by the Ordinary to the Patron 
t Dyer, fo. 346, 369, 377. Co. li. 6. fo. 29. . But if the Church become void by Death, Creation, or session of the last Incumbent, the Patron is at his peril to take Notice of such Avoidances within the next Six months thereof 
u 22 H. 6. 29. b. . But if it become void by Deprivation or Resignation, the Clerk is not obliged to tender his Presentation to the Bishop, nor the Patron obliged to Present his Clerk, but within Six months' next after Notice legally given him by the Ordinary of the Avoidance by such Deprivation or Resignation 
x Dr. & St. l. 2. c. 31. Roll. 2. 364, etc. ; which Six months are to be calculated or computed by 182 days, and not by 28 days to the Month 
y Yelv. 100 & Co. 6. 61. b. 62. a. . Nor is there any Addition of time over and above the Six months allowed the Patron to Present from the Vacancy a Second Clerk, in case the former were legally refused by the Bishop 
z Kelw. 50. b. & 14 H. 7. 21. a. Dyer 227. p. 7. . Yet the Ordinary may not take advantage of the Lapse, in case the Patron Present his Clerk, before the other hath Collated 
a 13 E. 4. 3. b. & 11 H. 4. 80. a. & Hutton 24. ; though it be otherwise with the Canonists: Lindw. c. Si aliquo evincente, etc. verb. Injuria. But if the Bishop Collate, and the Patron Present before Induction, in that case it seems he comes too late 
b Dyer 270, p. 56. . And at the Common Law Sir Simon Degge in his Parson's Counsellor makes it a doubtful Question, if the Church Lapse to the King, and the Patron Presents before the King take advantage of the Lapse, whether this shall avoid the King's Title by Lapse? This (says he) is a Question by Dyer 
c Dy. 277. p. 55. , though Hobart seems to be clear in it, that the King shall not have the benefit of the Lapse 
d Hob. 15●. Hut 24. ; but adds that divers Authorities are against them 
e Cro. Eliz. 119. Cro. Jac. 216. a. Owen 3, & 5, Roll. 2. 368. b. 27 E. 3. 84. b. Co. 7. 28. Dr. & Stud. lib. 2. cap 31. Pars. Counsel. par. 1. cap. 2. . And in the Cases aforesaid, wherein Notice of Avoidance ought to be given to the Patron before the Lapse can incur, the Patron is not obliged to take Notice thereof from any person other than the Bishop himself, or other Ordinary 
f Dr. & Stu. ubi supr. ; which also must be given to the Patron personally, if he live in the same County; and if in another County, than Publication thereof in the Parish-Church, and affixed on the Church-Door, will serve turn, if such Notice doth express in certain (as it ought to do) the cause of the Deprivation, etc. 
g Co. 6 19 b. & Cro. El. 119. Dyer 328. a. : As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion, the Ordinary is to give the Patron Notice thereof, which Notice ought to be certain and particular 
h 18 Eliz. Dyer 346. Trin. 41 El. B. R. Baker and Brent's Case. Cro. par. 3. acc. 679. . Before Lapse can incur against a Patron, Notice of his Clerks being refused by the Ordinary for Insufficiency, must be given to the person of the Patron, if he may be found, and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented. D. 16 El. 327. 7. b. Adjudged.  
(5.) It is said, That a Lapse is not an Interest naturally, as is the Patronage, but a mere Trust in Law. And if the Six months be incurred, yet the patron's Clerk shall be received, if he be Presented before the Church be Filled by the Lapse 
i 13 E. 4. 3. Brook Plenarty, 15 43 E. 3. 11. 11 H. 4. 80. . Observe 7 Eliz. Dyer 241. for it seems by that case, that the Patron should Present against the King's Lapse, for he hath damage but for half a year. And Hob. Chief Justice says, That a Lapse is an act and office of Trust reposed by Law, in the Ordinary, Metropolitan, and lastly in the King; the end of which Trust is to provide the Church of a Rector, in default of the Patron; and yet as for him, and to his behoof. And therefore as he cannot transfer his Trust to another, so cannot he divert the thing wherewith he is entrusted to any other purpose. Nor can a Lapse be granted over, as a Grant of the next Lapse of such a Church, neither before it fall, nor after. If the Lapse incur, and then the Ordinary die, the King shall Present, and not the Executors of the Ordinary: For it is rather an Administration than an Interest; and the King cannot have a Lapse, but where the Ordinary might have had it before 
k Mich. 10 Jac. rot. 2642. C●lt and Glover vers. the Bishop of Coventry and Lichfield. Hob. Rep.  If an Infant-Patron Present not within Six months, the Lapse incurs. The Law is the same as against a Feme-Covert, that hath right to Present. 33 E. 3. Qua. Impedit, 46.  
(6.) In the first Paragraph of this Chapter it is said, That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae, that is, of the last Incumbent 
p 6 E. 1. Rot. Pat. membr. 25.  And so Adjuged upon a Writ in the time of E. 2. 
q Co. 6. Cates by 62. , and said to be per Legem & Consuetudinem Regni hactenus usitatas. As if the Incumbent die beyond Sea, the Six months are not computed from the time of his death, but from the time of the patron's knowledge thereof; and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich, as aforesaid 
r dict. 6 E. i  For the Six months are not reckoned from the death of the Last Incumbent, but from the time the Patron might (according to a reasonable Computation, having regard to the distance of the place where he was at the time of the Incumbents death, if he were within the Realm at that time) have come to the knowledge thereof; for he ought afterwards to take notice thereof at his peril, and not before, for that he was in some other County than that wherein the Church is, and wherein the Incumbent died 
s 5 E. 1. 75. Adjudge. Q. Eleano●s case. Contra Co. 6. C●●sby, 62. b. . And if the Ordinary refuse a Clerk for that he is Criminous, in that case the Patron shall not have Six months to Present after Notice thereof given him, but of the Avoidance 
t 14 H. 7. ●●. Curia. 18 H. 7. Kell. 50. b. Quaer●. . The Law is the same in case of Refusal by reason of Illiterature 
u D. 15, 16. El. 227. 7. per Curiam. : But if the Church be void by Resignation or Deprivation, the Six months shall be computed from the time of Notice thereof given to the Patron, and not from the time of the Avoidance 
x 1 H. 7. 9 b. D. 15, 16 El. 327. 7. Dr. & Stu. 16. 5 E. 4. 3. b. : Yet if the Ordinary refuse a Clerk because he is Criminous, he is to give notice thereof to the Patron, otherwise the Lapse doth not incur 
y 38 E. 3. 2. . So likewise, if he be refused for Common Usury, Simony, Adultery, or other Notorious Crime, Notice thereof aught to be given to the Patron, otherwise the Lapse doth not incur 
z 18 H. 7. Kell. 50. b. Contr. per Frowick. . A Lay Patron ought to have Notice ere the Lapse shall incur, in case his Clerk be refused for Illiterature, otherwise as to a Spiritual Patron, because the Law presumes, he might well know of his insufficiency before he presented him 
a 18 H. 7. Kell. 49. b. . And if the Bishop who took a Resignation dies, the Lapse doth not incur to his Successor without Notice to the Patron 
b Ibid. .  
(7.) In a Quare Impedit the Defendant pleaded, That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders, and he would not show them, and also demanded of him his Letters Missive or Testimonial, testifying his ability; and because he had not his Letters of Orders, nor Letters Missive, nor made any proof of them to the Bishop, he desired leave of the Bishop to bring them, who gave him a week; and he went away and came not again, and the Six months passed, and the Bishop Collated by Lapse: It was Adjudged in this Case, That these were no Causes to stay the Admittance of the Clerk, for the Clerk is not bound (understand it only at Common Law) to show his Letters of Orders and Letters Missive to the Bishop, but the Bishop must try him upon Examination 
c Trin. 33 Eliz. B. R. Palmer and the Bishop of Peterburghs Case. Cro. par. 1. .  
(8.) A Parson of the Church of S. of the value of Ten pound, took a Second Benefice without a Dispensation, and was Instituted and Inducted, and continued so for twelve years: The Patron presented J. S. who was Instituted and Inducted, and so continued divers years, and died. The Queen presented the Defendant C. ratione Lapsus in the time of A. who was Instituted and Deducted. B. the Patron brought a Quare Impedit against the Ordinary and C. 
Mich. 27 & 28 Eliz. C. B. B●verly and Cornwall's Case.  It was held by the Justices, That the Writ did well lie; and that Tempus occurrit Reginae in this Case, and that last Clerk should be removed. And it was held by the Justices, That upon a Recovery in a Quare Impedit, any Incumbent that comes in pendente light should be removed.  
(9) In the Case between Cumber and the Bishop of Chichester, it was Resolved (1) If Title of Lapse accrues to the King, and the Patron Presents, yet the King may Present at any time as long as the Presentee is Parson; but if he dies, or Resigns before the King Presents, he hath lost his Presentment. (2.) If the King hath Title by Lapse, because a Parson hath taken a Second Benefice, if the Parson dies, or Resigns his First Benefice, and the Patron Presents, whose Presentee Resigns upon Covin and dies, the King hath lost that Presentment 
e Hill. 6 Jac. B. R. Cro. par. 2. .   

CHAP. XXIII.  
Of Collation, Presentation, and Nomination.  

1. What Collation is, and how it differs from Presentation.  
2. Collation gains not the Patronage from the Crown.  
3. The ordinaries Collation by Lapse is only in the Patron's right.  
4. What Presentation is, and how in ease of coheirs, or joint-tenants, or Tenants in Common.  
5. Whether the Grantee of the next Presentation, not Presenting at the First Avoidance, shall lose the benefit of his Grant?  
6. The Right of Presentation is not an Ecclesiastical, but Temporal Inheritance, and cognizable at the Common Law.  
7. The power of the Ordinary in case of Coparconers, joint-tenants, or Tenants in Common, as to Presentation.  
8. In what Case the Bishop hath Election, whose Clerk he will Admit.  
9 Whether a Presentation is revokable before Institution?  
10. Whether the Son may succeed his Father in the Church? and who may vary from, or repeal his Presentation.  
11. What Nomination is, and the Qualifications thereof.  
12. In what Case the Presentation is the Nomination, or both as one in Law.  
13. In what case the Nominator shall have a Quare Impedit, as well as he that hath Right of Presentation; And there may be a Corrupt Nomination, as well as a Corrupt Presentation.  
14. Whether the Collatee be Incumbent, if the Bishop Collate him within the Six months? And in what Case the King's Presentation within the Six months may be an usurpation or not.  
15. Where the Ordinary Collates, the Patron is to take notice of it at his peril.  
16. Who shall Present in case the Ordinary, to whom a Lapse is devolved, be within the Six months translated to another bishopric.  
17. A Resignation to a Proctor, without the Bishop's Acceptance, makes not the Church void.  
18. A Parochial Church may be Donative, exempt from the ordinaries Jurisdiction, and is Resignable to, and Visitable by the Patron, not the Ordinary.  
19 Where Two are to Present by Turns; what Presentation shall serve for a Turn, or not.  
20. By the Canons the Son may not succeed the Father in the same Church.  
21. To what a Presentation may be made.  
22. The King's right of Presentation as Supreme Patron.  
23. In what case the King's Prerogative to Present doth not take place.  
24. In what Cases it doth.  
25. To whom the Patronage of an archbishopric belongs.  
26. Whether Alien Ministers are Presentable to a Church in England?  
27. In what Cases the Patron may Present de novo.  
28. Difference between the King and a Common person in point of Presentation.  
29. A Collation makes no Plenarty where it is tortuous.  
30. Presentation may be per parol as well as by Writing.  
31. What amounts to a Revocation of the King's Presentation.  
32. Causes of Refusal of the Clerk Presented.  
33. Certain Law Cases pertinent to this Subject.  
34. Whether Institution granted after a Caveat entered, be void?  
35. What shall be held a Serving of a Turn, and good Plenarty and Incumbency, against a Patron in Severalty.  
36. A Clerk refused by reason of his not being able to speak the Welsh Language.  
37. What is the best Legal Policy upon every Presentation by usurpation.  
38. One of Two Grantees of an Advowson, to whom the other hath released, may Present alone, and have a Qua. Imp. in his own Name.  
39 A Clerk refused for Insufficiency by the Bishop, may not afterwards be Accepted.   
(1.) COllation in its proper signification, is the bestowing of a Benefice by a Bishop that hath it in his own proper right, gift, or patronage; distinguished from Institution only in this, That Institution into a Benefice is at the instance, motion, or Presentation of the Patron, or some other having pro tempore the Patrons Right, performed by the Bishop. Extra. de Instit. & de Concess. Praeben. etc. But Collation is, not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical, but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof; or when the Bishop or Ordinary hath right to Present for Lapse of the Patron: and yet sometimes Collation is and hath been used for Presentation 
a St 25 Ed. 3. 6. . And so Presentation, Nomination, and Collation, are commonly taken for one and the same thing in substance, though at times distinguished 
b 14 H. 7. 22. by Kingsmill. : And whereas it hath been a Question, If one hath the Nomination, and another the Presentation, which of them shall be said to be the very Patron; it hath always been taken to be the better opinion, that he who hath the Nomination, is Patron of the Church. And where an Abbot had the Presentation, and another the Nomination, and the Abbey surrendered to the King; he that hath the Nomination shall now have all; for the King shall not Present for him, that being a thing undecent for the King 
c 1 Car. B. R. Dickenson and Green●●● Case. Pop●. 1●8. . But as to Collation and Presentation, they were in substance one and the same thing, as aforesaid 
d 27 E. 3. 64. : But to speak properly, Collation is where the Bishop himself doth freely give a Benefice, which is of his own Gift by right of Patronage or Lapse 
e 25 Ed. 3. 6. 1 Ed. 4. . This word [Collation] seems also to be frequently used when the King Presents; and hence it is that there is a Writ called [Collatione facta uni post mortem alterius, etc.] directed to the Justices of the Common Pleas, Commanding them to direct their Writ to a Bishop, for the Admitting one Clerk in the place of another Presented by the King, which Clerk (during the Suit between the King and the Bishop's Clerk) is departed this life: For judgement once given for the King's Clerk, and he dying before his Admission, the King may bestow his Presentation on another 
f Reg. of Writs, fo. 31. b. . This Collation, Presentation, and Nomination, are in effect synonimons, being distinguished only in respect rather of Persons, than of Things.  
(2.) Yet there may be a great difference betwixt Presentation and Collation, which gains not the Patronage from the King, as appears in the Case of the Queen against the Bishop of York, where the Queen brought a Quare Impedit against the said Bishop, and one Monk, and counted upon a Presentment made by King Hen. 8. in the right of his duchy of Lancaster, and so conveyed the same to the Queen by Descent: The Bishop pleaded, That he and his Predecessors have Collated to the said Church, etc. and Monk pleaded the same Plea, upon which there was a Demurrer. And it was moved by Beaumond sergeant, That the Plea is not good, for a Collation cannot gain any Patronage, and cannot be an Usurpation against a Common person, much less against the Queen, to whom no Lapses shall be ascribed: and although the Queen is seized of this Advowson in the right of her duchy, yet when the Church becomes void, the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist. 31. Quando Rex praesentat non in jure Coronae, tunc incurrit ei Tempus. Hamm. Serj. By these Collations the Queen shall be put out of possession, and put to her Writ of Right of Advowson; but the same aught to be intended, not where the Bishop Collates as Ordinary, but where he Collates as Patron, claiming the Patronage to himself, for such a Collation doth amount to a Presentation; and here are two or three Collations pleaded, which should put the Queen out of possession, although she shall not be bound by the First during the life of the first Incumbent. Vid. Br. Quare Impedit, 31. upon the abridging of the Case of 47 E. 3. 4. That two Presentments the one after the other shall put the King out of possession, and put him to his Writ of Right of Advowson, which Anderson denied. And it was holden by the whole Court, here is not any Presentation, and then no possession gained by the Collations: and although the Bishop doth Collate as Patron, and not as Ordinary, yet it is but a Collation. And there is a great difference betwixt Collation and Presentation; for Collation is a giving of the Church to the Parson, but Presentation is a giving or offering of the Parson to the Church, and that makes a Plenarty, but not a Collation 
g Pasch. 33 Eliz. C. B. The Queen and the Bishop of York ' s Case. Leon. Rep. .  
(3.) The Collation of the Ordinary for Lapse is in Right of the Patron, and will serve him for a Possession in a Darrein Presentment, as appears by Colt and Glover's Case against the Bishop of Coventry and Lichfield, where it is said, That the Ordinary, or he that presents by Lapse, is a kind of Attorney made by Law, to do that for the Patron, which it is supposed he would do himself, if there were not some let; and therefore the Collation by Lapse is in right of the Patron, and for his turn, 24 E. 3. 26. And he shall lay it as his possession for an Assize of Darrein Presentment, 5 H. 7. 43. 
h Mich. 10 Jac. rot. 2642. Colt and Glov. vers. Bish. of cou. and Lichf. Hob. Rep. . It seems also by Gawdy's Case against the Archbishop of Canterbury and others, That although a Bishop Collate wrongfully, yet this makes such a Plenarty as shall bar the Lapse of the Metropolitan and the King 
i Hill. 17 Jac. rot. 1840. Case Gawdy verse. Archb. of Can●. & al. Hob. Rep.  And this Collation by Lapse is an act and office of Trust reposed by Law in the Ordinary, Metropolitan, and King; the Title of Lapse being rather an Administration than an Interest, as in Colt's Case aforesaid; which Title of Collating by Lapse may be prevented by bringing a Quare Impedit against the Bishop: Also where and in what Cases the bringing of that Writ against the Bishop shall or shall not prevent such Collation, appears in the Case of Brickhead against the Archbishop of York, as Reported by Sir Hen. Hobart Chief Justice 
k Mich. 15 Jac. Brickhead verse. Archb. of Y●●k. Hob. Rep. .  
(4.) Presentation is the Nomination of a Clerk to the Ordinary to be Admitted and Instituted by him to a Benefice void, and the same being in Writing, is nothing but a Letter Missive to the Bishop or Ordinary, to exhibit to him a Clerk to have the Benefice voided, the Formal force hereof resteth in these words, viz. Praesento vobis Clericum meum. Thus Presentation properly so called, is the act of a Patron offering his Clerk to the Bishop, to be Instituted in a Benefice of his Gift 
l The Form whereof vid. Reg Orig. fo. 3● 2. a. . It is where a man hath a Right to give any Benefice Spiritual, and presents the person to the Bishop, to whom he gives it, and makes an Instrument in writing to the Bishop in his favour; and in case there be divers Coheirs, and they not according in the Presentation, that which is made by the eldest of the Coheirs, shall be first Admitted; but if it be by joint-tenants, or Tenants in Common, and they accord not within Six months, the Bishop shall present by Lapse 
m Terms of Law, verb. Presentment. . By the Statute of 13 Eliz. cap. 12. a Presentation of an Infant to a Benefice is void. And although a Presentation, being but the Commendation of a fit person by the Patron to the Bishop or Ordinary to be Admitted and Instituted into a Benefice, may be done either by word alone, or by a Letter or other writing, yet the Grant of a next Avoidance is not good without Deed 
n Mich. 31 & 32 Eliz. C. B. Cripps & the Archb. of Canterbury's Case. Owen 47. . But a Presentation, being no other than a Commendation of a Clerk to the Ordinary (as aforesaid) and only a thing concerning an Advowson, without passing any interest of the Inheritance of the Advowson, may be done by word only; upon which ground it was Resolved by the whole Court, That the King's Presentation unto an Advowson appendent to a manor parcel of his duchy, under the Great Seal of England, without the Seal of the duchy, was well made, and good 
o 11 Jac. C. B. The King and the Bishop of Linc. Case. Also Mich. 8 Jac. C. B. Case betwixt the King and the Bishop of Chichester, then vouched and affirmed for Law. : Yea, and for the same Reason, for that a Presentation is but a Commendation, and toucheth not the Inheritance, was the King's Presentation to the Deanary of Norwich held good, albeit in the said Presentation he mistook and misrecited the Name of the Foundation of the Deanary 
p Stephen Gardener's Case there vouched by Cook, Chief Justice Vid. Mich. 3 Car. B. R. Stephens and Potter 's Case. Cro. 1. par. 70, 71. acc. Vid Trin. 8 Jac. C. B. rot. 18 11. Cro. 2. par. 247. the same Case. .  
(5. A. seized of an Advowson in Fee, Grants Praesentationem to B: quandocunque & quomodocunque Ecclesia vacare contigerit, pro unica vice tantum; in the Grant there was further this Clause, viz. Insuper voluit & concessit, That the Grant should remain in force quousque Clericus habilis & idoneus shall by his Presentation be Admitted, Instituted, and Inducted. Afterwards A. grants away the Advowson in Fee unto S. The Church becomes void. S. Presents. The Church becomes void again. S. Presents G. upon a Disturbance of M. the Presentee of B. the First Grantee, a Quare Impedit is brought. The Question was, Whether B. the First Grantee, not Presenting upon the First Avoidance, had lost the benefit of his Grant? In this Case it was Adjudged by the whole Court, That although A. the Grantor grants Donationem & Praesenta●ionem, quandocunque Ecclesia vacare contigerit, pro unica vice tantum; yet B. ought to have taken the first Presentation that happened, and hath not Election to take any turn other than the First, when the Church first became void; and by his neglect in not Presenting then, had lost the benefit of his Grant; and the subsequent words in the Grant are but only an Explanation of the words precedent, and relate to the next Avoidance 
q Tr. 8 Jac. B. R. Starkey and Pole's Case. Bulstr. 1. par. 26, 27. Hugh's Abr. ver. Advowson, Sect. 6. §. 13. .  
(6.) The Right of Presentation is a Temporal thing, and a Temporal Inheritance, and therefore belongeth to the King's Temporal Laws to determine, as also to make Laws who shall Present after Six months as well as before, so as the Title of Examination of Ability or Nonability be not thereby taken from the Ordinary. The Law is the same touching Avoidances, for it shall be judged by the King's Temporal Laws, when and whether the Church may be said to be void or not; the cognizance whereof doth not belong to the King's Ecclesiastical Laws; and therefore where a Parson is made a Bishop, or accepts another Benefice without licence, or Resigneth, or be Deprived: In these cases the Common Law would hold the Church void, albeit there were any Ecclesiastical Law to the contrary 
r Dr. & Stu. cap 36. : And it is sufficient for the ordinaries discharge, if the Presentee be able, by whomsoever he be Presented; which Authority is acknowledged on all sides to have been ever inherent in the Ecclesiastical Jurisdiction: But as to the Right of Presentation itself, to determine who ought to Present, and who not, and at what time, and when the Church shall be Judged to become void, and when not, all these appertain to the King's Temporal Laws. And in case it happen that the King Present not, where of Right he may, in such case the Ordinary may pro tempore depute a fit person to serve the Cure; as in like case he may, where there is a default or neglect in other Patrons to Present, and do not 
s Dr. & Stu. ibid. .  
(7.) If the Patrons be joint-tenants, or Tenants in Common of the Patronage, and they vary or differ in their Presentations, the Ordinary is not in that Case bound to admire either of their Clerks, nor him that is Presented by the Major part: And if the Six months expire ere they agree, the Ordinary may Present by the Lapse; but within the Six months he may not; for if so, and the patron's accord, they may bring a Quare Impedit against him as a Disturber, and remove his Clerk. But in case the Patrons have the Patronage by Descent as Coparceners, then is the Ordinary obliged to Admit the Clerk of the Eldest Sister, who hath the precedency by Law in the Presentation, if she so please, after which and at the next Avoidance the next Sister shall Present, and so in order by turn one Sister after another till all the Sisters or their Heirs have Presented, and then the Eldest Sister shall Present again, and this is called a Presenting by Turn, which holdeth always between Coparceners of an Advowson, unless they agree to Present together, or in some other manner by way of Composition, which if so, than the Agreement ought to hold good. Yet here note, That if after the death of the Common Ancestor, the Church happening to be void, the eldest Sister together with another of the Sisters, Presents, and the other Sisters severally and each in her own Name, or jointly and altogether; In this case the Ordinary is not obliged to receive any of their Clerks, but may suffer the Church to run into the Lapse; for there is no obligation on the Ordinary to admit the Clerk of the Eldest Sister, but where she Presents in her own Name only. And in such case of variance or difference among the Patrons touching the Presentation, the Church is not properly said Litigious, obliging the Ordinary at his peril to direct a Writ to inquire de jure Patronatus, which Writ lieth only where Two or more Present under pretence of several Titles, but in this case all the Patrons present under one and the same Title; for which reason the Ordinary may, if he please, suffer it to pass into the Lapse 
t Dr. & Stu. cap. 30. .  
(8.) Suppose a Patron presents to a Church void, and before the Admission of the Clerk the Patron dies; after his Executors (before such Admission) Present another Clerk. Q. Whether the Archdeacon ought to receive the Clerk of the Testator, or of the Executors? The Opinion of the whole Court: was, That the Bishop should have Election therein 
u Trin. 13 Eliz. C. B. Smalwood vers. Bishop of Lichfield. Leon. Rep. . And in case an Agreement be made by way of Composition between divers claiming one Advowson, and Enrolled, or by Fine, that one shall successively after another Present in such an order certain; and after one hath Presented, he to whom at the next Avoidance the Second Presentation doth belong, is disturbed by any that was party to the said Fine, or by some other in his stead: In such case it is provided, That such so disturbed shall not be put to the Quare Impedit, but their resort to the Roll or Fine shall be sufficient, where if the Concord or Agreement be found, the Sheriff shall be commanded, That he give knowledge to the Disturber, that he show by such a time certain (as fifteen days, or three weeks) if he can allege any thing, wherefore the party that is disturbed, ought not to Present; and if he appear not, or appearing allege nothing sufficient in Bar, he shall recover his Presentation with damages 
x Stat. 13 Ed. 1. cap. 5. .  
(9) In the Case of Evans and Ascough it was the Opinion of Doderidge, That a Bishop hath no more in a Church by Election, than a Parson hath by Presentation. And that if a man Present to a Church, yet any time before Institution he may revoke it, and Present another; and if in that case the Bishop will Institute the First, a Quare Impedit will lie against him 
y Case Evans and Ascough. Latch. Rep. . But if the Patron present one, and he be Admitted by the Ordinary, he cannot in that case vary from his Presentation: as was also held by Doderidge in Stoke's Case against Styles 
Z Stoke verse. Styles. Latch. Rep. fo. 253. ; where he further said, That it was out of all question at the Common Law, that before Admission by the Ordinary the Lay-Patron may revoke his Presentation; because a Presentation is no other than a Commendation, which may be by word only: And if the Case be, that one hath the Nomination, another the Presentation, the Presentation and Nomination are all one. It was then said by Whitlock, That in the Canon Law it is allowed to a layman to vary, but not to a Spiritual man; but at the Common Law it is all one. Doderidge and Jones seemed to give the Reason thereof, when they said, That it may be intended, that a layman cannot at first so well judge, or is able to discern of the sufficiency of the party Presented, but a Spiritual-man may. Quaere; If after Admission of the Patrons Presentee he doth afterwards again Present another to the Ordinary, and the Ordinary Admit, Institute, and Induct the last Presentee, what Remedy for the first? So if a Spiritual Person change his Presentation by the consent of the Ordinary, what remedy for the First after Induction of the Second 
a Case. ibid. ?  
(10.) To the same purpose with the premises is that which is Reported in Stoke's Case against Sykes; the Case is this, viz. A Lay-Patron, having the next Avoidance of a Church after the death of one Stokes, 
See this Case in Noy's Rep.  Father of the Plaintiff, than Incumbent of the said Church, after the father's death presented Stokes' Son, whom the Bishop refused, for that by the Canon Law Filius Patri non potest in Ecclesia succedere. Whereupon the Patron presented Sykes; And now Stokes obtains a Dispensation Non obstante the Canon. Notwithstanding the Ordinary doth Institute Sykes, and causeth him to be Inducted. Whereupon Stokes doth Sue Sykes and the Ordinary in the Delegates; and now Banks prays a Prohibition, and by all the Justices it was granted. And Jones said, That he had known it to be Thrice so granted in the like Case, (viz.) in the time of Justice Gawdy, as also in the time of Justice Coke in the Common Pleas, where both Parsons claimed by one Patron: But Doderidge there held, That the Canon beforementioned doth not hold in this Church; and so said Doderidge was the Opinion of a Learned Civilian: So by the Canon Law a man cannot have that Woman in Marriage, whom he had in Avowry before; yet that Canon doth not hold in our Church. Doderidge said, that the Civilians hold, That a Lay-Patron cannot revoke his Presentation, but he may cumulando variare, and so the Ordinary hath Election to Institute which of them he will; but that a Spiritual Patron cannot vary at all. But he said, that at the Common Law it is out of question, That a Patron before Institution may revoke his Presentation: And if the Patron present one, and the Ordinary admit him, but will not give him Institution, Duplex Quaerela lies against the Ordinary, to enforce him to do his duty: But if both parson's claim by one Patron, and the one sues a Duplex Quaerela, a Prohibition lies not before Institution. But Jones denied it, and said, That it had been Resolved to the contrary. Doderidge said, That in that case the Induction was pendente light 
b Stokes verse. Sykes. Latch. Rep.  And in Calvert's Case against kitchen it was said, that they King may revoke his Presentation, and by the same reason may Present another, before his Presentee is Instituted; for proof whereof it was said, That a Common person may recall his Presentation before the Institution, etc. for which was vouched the Book of 31 E. 1. tit. Quare Impedit, 185. the Abbot of Leicester's Case, although that Dyer citing it, 12 Eliz. foe 292. conceives the Book contrary; but it seems to be in reason that the Law is clear, That a Lay-Patron may change, although that a Spiritual Patron cannot, and the reason is (as aforesaid) because a Lay-person did not know his Sufficiency perhaps at the first; but a Spiritual person by intendment may inform himself thereof well enough, and therefore was vouched 18 H. 7. and 1 H. 8. Kellway's Reports, which plainly proves that diversity: And by the 19 Eliz. foe 360. in Coleshil's Case it is said, That when the King hath Presented, a Repeal by him ought not to be admitted after Institution: And by Dyer 339. in Yatton's Case, the King may Repeal his Presentation by a new Presentation, without mention made of the former, except that the Second Presentation be obtained by Fraud. Also the King may Present by Paroll, as was said by Sir Ed. Coke in the Lord Windsor's Case, and as appears by 17 Eliz. Dyer, as was vouched by Bromley Baron in the foresaid Case of Calvert against kitchen; where it was said by Altham Baron, That by the King's death his Presentation determines (understand it, before Institution;) and so it is said in 34 E. 3. 8. tit. Quare Impedit, 11. That a Presentment made by a Bishop becomes null and void by his death. And in 38 Ed. 3. 3. if a Bishop Present and die before, etc. the King shall Present anew 
c kitchen vers. Calvert. Lanes Rep. .  
(11.) Nomination, is a power, that by virtue of a manor or otherwise a man hath to Nominate or Appoint a Clerk to a Patron of a Benefice, by him to be Presented to the Ordinary for the same; where Note, (1) That it may be in right of a manor, or otherwise. (2) That the Clerk Nominated aught to be a person fit, able, and worthy. (3) That it may be to a Parsonage, Vicarage, or other Spiritual promotion. (4) That it ought to be to another than the Ordinary, which other shall present him to the Ordinary 
d Terms of Law verb. Nomination. . And if one hath a Right to have the Nomination of a Clerk to a Benefice, and another Disturbs him, he cannot have a Quare Impedit ipsum Nominare ad Ecclesiam; but the Writ shall be Quod permittat ipsum Praesentare: And the Count shall be, That of Right he ought to Name a Clerk to such as one who ought to Present him to the Bishop, and that a Stranger doth disturb him of his Nomination; and in case he doth Recover, the judgement shall be Quod Episcopus admittat Clericum ad Nominationem suam 
e 21 H. 6. 17. by Fulthorp. .  
(12.) If A. B. doth Grant unto J. S. That he shall Name a Clerk to him to the Church of C. when it shall become void, and that A. B. shall present unto the Bishop the Clerk which J. S. shall Nominate to him; in that case the Presentation is in J. S. and he shall have a Quare Impedit, for all the Profit is in him: and the Grant of the Nomination and Presentation is all one. But if A. B. doth Grant unto J. S. That he shall Nominate to him Two Clerks, whereof A. B. shall Present one; in that case the Presentation is not given to J. S. the Grantee, because it is in the Election of A. B. which of the Two shall have the Benefice: And this was the Opinion of the Justices in Smith and Clayton's Case 
f 14 Ed. 4. 2. Smith and Clayton's Case. .  
(13.) If A. hath the Nomination to an Advowson, and B. the Presentation, if A. Nominates C. for his Clerk, and B. that should present C. doth present D. for the Clerk; A. that hath the Nomination, shall have a Quare Impedit, and the Writ shall be Quod permittat eum Praesentare, albeit A. had but the Nomination: otherwise he should be without remedy; for in such cases where the party can otherwise have no Right done him, the Law will admit such Writ, albeit the words therein be improper 
g Fitz. N. B. 33. b. . And if he who had but a Nomination, corruptly agree to make a Presentation, or Nomination, this Nomination shall be forfeited to the King, within the Statute of 31 Eliz. cap. 6. as was said in Calvert's Case against kitchen and Parkinson 
h Dict. Cas. Lane Rep. ; and as it is said in Plowden, in Hare, and Bickley's Case, He who hath the Nomination, hath the effect of the Advowson. Yet (as in the said Case of Calvert) this diversity seems to be good, That if A. hath the Presentation, and B. the Nomination to a Benefice, and the presenter upon a Corrupt agreement, make a Presentation unknown to the Nominator, here the Nominator shall not be prejudiced within the Statute of 31 Eliz. cap. 6. 
i Trin. 7 Jac. in the Exchequer. Calv. against kitchen and Parkinson. Lane's Rep. .  
(14.) In Green's Case vouched by Atthowe sergeant in the Case of the King against the Archbishop of Canterbury and one Thomas Prust, upon a Quare Impedit brought by the King, it is said, That if the Bishop Collate before the Six months' incur, the Collatee is Incumbent, but the Patron may Present at any time aster, for that fills the Church, but not against the Patron, and hinders that no Lapse may incur to another. In Sir Hen. Gawdy's Case for the Church of W. the Church there became void, and within fourteen days after the King Presented one to it jure Prerogativae; the Presentee continues possession above thirty years, and then the manor and the Advowson came to Sir Henry Gawdy; the Church is void, and the King Presents again, and was disturbed by Sir Henry. For that the King brought a Quare Impedit: and Adjudged, That the Presentation of the King within the Six months was not an Usurpation: But if he had Presented in his own right, there should have been an Usurpation. When a Title by Lapse is in the King, if any Present, the King may remove him during his life by Quare Impedit. All this appears by Baskervil's Case; but if the Incumbent die, the term of the King is gone; and if he Resign not, the King may Present during the life of the Incumbent: And that was a grand inconveniency, that after so long possession in that manner, the Incumbent may be removed by the King, etc. Vid. the Case of the King against the Archbishop of Canterbury and Thomas Prust, Clerk. Trin. 4 Car. Hetley's Reports.  
(15.) If an Incumbent Resign, and the Usurper Present within Six months, and is in for Six months, no Notice being given to the Patron of the Resignation; yet that shall bind him, and he shall be put to his Right of Advowson. Otherwise if the Ordinary had Collated; because the Induction is notorious to the Country, and the Patron ought to take notice of it at his peril, to prevent the Usurpation of an Estranger 
k Servien agaiest the Bishop of Lincoln. Noy's Rep. .  
(16.) There was a Question upon a Demurrer in Law, If a Lapse devolves to the Ordinary, and within those Six months the Ordinary is Translated to another bishopric; Whether the King or his Metropolitan shall Present to that Lapse, in default that the Patron does not Present? Noy Attorney, That the Guardian of the Spiritualties shall Present whosoever he be. Vid. Dyer 78. Pl. 103. 
l In Robbino Case. Noy's Rep. .  
(17.) In a Quare Impedit, It was Resolved and Agreed by all upon Evidence at Bar, That a Resignation to a Proctor, does not make the Church void, until it be Accepted by the Bishop, and acknowledged before him. So that a Presentation in the mean time was void 
m Smith agaiest ●●avis noys Rep. .  
(18.) A Parochial Church may be a Donative, and exempt from the Ordinaries Jurisdiction, and the Incumbent may resign to the Patron, and not to the Ordinary; nor may the Ordinary Visit, but the Patron by Commissioners to be appointed by him. Co. Lit. 144. Cite Hill. 1 Jac. B. R. Rot. 601. between Fairchild and Gaier in Trespass for the Parochial Rectory Donative of St. Burien in Cornwall; so Resolved in that Case 
n Hill. 1 Jac. B. R. rot. 601. Fairchild and Gaier. . But in such case of a Parochial Donative, a mere layman is not capable thereof, but a Clerk in Holy Orders is; for although he comes in by way of a Lay-donation, and not by Admission and Institution, yet his Function is Spiritual. As was Resolved in the said Case of St. Burien 
o Co. Lit. 601. . So that a Donative may pass by the Gift of a Lay-Patron, without Institution or Induction 
p Da. 1. 46. b. & Roll. Abr. verb. Present. lit. B. .  
(19) In a Quare Impedit the Case was this; A. seized of Two parts of an Advowson, and B. of the Third part: A. presented one who died, afterwards he presented again C, who is deprived 1 Mar. because he is a Favourer of the Religion of E. 6. B. presented D. who after is deprived, and C. restored. The Church void by the death of C. B. presents, and A. brings a Quare Impedit. It was Adjudged that it did not lie: And it was Agreed, That if Two have Title to present by turns, and one presents one who is Admitted and Instituted, and afterwards deprived for Crime; yet he shall not present again; but it shall serve for his Turn, because the Church was full, till a Sentence of Deprivation came: But when the Admission and Institution are merely void, the same shall not serve for a Turn: But in this case, although the Clerk of B. was Incumbent for a time to all purposes, yet when the second Sentence came, C. was Incumbent again by force of the first Presentment, and then when he was dead, B. aught to present at his Turn 
q Trin. 41 Eliz. B. R. Windsor and the Archb. of Cinterb. Case. Cro. par. 1. . In another Quare Impedit the Case was this, viz. The Bishop of Lincoln, Patron and Ordinary Collated to a Benefice in 8 Eliz. The Incumbent took another Benefice without Qualification, by which the first was void: The Successor Bishop 18 Eliz. presented one E. but non constat, whether by Avoidance, Death, or Resignation: E. being in, the Bishop was translated or removed to Winchester: the Bishop that then was, certified that E. did not pay his Tenths, upon which the Church was void, and the Bishop Collated J. S. to the Church. The Question was, Whether the Queen might now avoid the Incumbent, to have her Presentment, which accrued to her upon the avoidance of the first Incumbent, who took a second Benefice without Qualification. The Justices at the first doubted it, but afterwards it was Adjudged for the Queen against the Bishop. Pasch. 30 Eliz. The Queen and the Bishop of Lincoln's Case. More ' s Rep.  
(20.) It is out of the Canon Law, one of Cardinal Otho's Canons, That Ne succedat in Ecclesia Filius Patri, the Son may not succeed the Father in the same Church; or in case such happen to be so Instituted or Admitted, they are forthwith to be deprived thereof by the said Constitution. Const. Othon. Ne succedat in Ecclesia Filius Patri. This is indeed according to the Canon Law, though with us not practicable; by the same Law also the Son is prohibited to succeed the Father immediately in the same Prebendy, albeit to have another he is not prohibited; but if it be where the number of prebend's be not definite and certain, there he is not at all by that Law prohibited, Extr. de si. Praes'. c. dilectus; yea, by that Law the Son may not be a Vicar in that Church, where the Father was Rector last, Extr. ib. ad Extirpandas, etc. Michael. But this might be omitted; for the Question, An Filius possit Beneficiari in Ecclesia Paterna? is with us grown too obsolete to admit a Negative Solution.  
(21.) A Presentation may be to a Deanary 
r 17 E. 3. 40. Adjudged. , to an Hospital 
s 21 E. 3. 6. b. , and to a chapel 
t 14 H. 3. Quare I. bed 183. Adjudge. . And if a Stranger Present to a Donative, and his Clerk be thereupon Instituted and Inducted, yet it is merely void 
u Co. Litt. 344. ; for which reason such Institution and Induction upon such a Presentation shall not make that Presentative, which before was Donative. But if he that is the true Patron of a Parochial Rectory Donative, shall Present to the same, and his Clerk be thereupon Admitted and Instituted, that now makes it to become Presentative, and it shall never afterwards become Donative 
x Co. Litt. ibid. .  
(22.) If a Church become void, to which a Bishop hath right to Present in respect of his Temporalties, in this case, if the Bishop happen to die before he hath presented to that Church void, the King shall have the Presentation, and not the Bishop's Executors 
y 50 E. 3. 26. 9 H. 6. 16. b. admit. 24 E. 3. 26. b. Curia. . Also if during the vacancy of the archbishopric of York, and the Temporalties being in the King's hands, the Deanary becomes void, the King shall Present to that Deanary, albeit there be a Composition between the Archbishop and the Chapter, that the Chapter shall choose him; for the jure the Patronage thereof belongs to the Archbishop, yet the Composition cannot bind the King, who comes in paramount as supreme Patron 
z 17 E. 3. 40. Adjudge. .  
(23.) Although it be admitted, that where a Common person Incumbent is Created a Bishop, there the King shall have the Presentation of the Church for that turn by his Prerogative; yet it seems, if the King grant to an Incumbent, before he is Created Bishop, a Dispensation retinere the Church with his bishopric, and afterwards is Created Bishop and dies Incumbent; it seems the King shall not Present to the Church by his Prerogative, for that the Church is not void by his being made a Bishop, in which case the Prerogative gives the Presentation to the King, but by the death of the Incumbent, in which case the Prerogative doth not take place. Co. Ent. 474. Hele's Case; there pleaded, that in such case the Church is void by death, and admitted, that it belongs to the Patron to present upon his death 
a Rol. Abr. ver. Prese●um. D. m. 2. .  
(24.) If a Church, whereof a Bishop in right of his bishopric is the Patron, becomes void after the death of the Bishop and before the Seizure of the Temporalties, yet the King shall have the Presentation 
b 12 E. 3. Quare Imp. 56. per Schard. . And if a Church belonging to the Patronage of a Bishop become void, and the Bishop Present and die before Institution, the King shall have that Presentation by his Prerogative 
c Liber Parliamentorum, 21 E 1. the Prior of Bermu●dsey's case adjudged in Parl. 24 E. 3. 30. adjudged. Rol. ubi supr. lit. E. nu. 5. . So if a Bishop die after Institution of the Clerk, and before Induction, the King shall have the Presentation by his Prerogative 
d 11 ●. 4. 9 ly●all the Justices. ●. N. B. 34. K. 36. K. 38 E. 3, 4. Hob. Rep. 208. . Also if Lapse incur to the Ordinary, and before the Six months pass the Ordinary is Translated or dies, it seems the King shall have the Presentation, and not the Ordinary, or his Executors, or the Guardian of the Spiritualties. P. 40 El. B. Dubitatur, Hob. Rep. 208. in case of death. But if a Bishop having right to present to a Prebend, and present his Clerk, who is Instituted and Inducted in the Morning, and Afternoon the same day the Bishop dies, whereby the Temporalties come into the King's hands, yet the King in that case may not have the Presentation 
e 43 E. 3. 3. .  
(25.) The Patronage of the Deanary of an archbishopric doth of Common right belong to the Archbishop, and he shall Present to the Avoidance 
f 17 E. 3. 40. b. . But by Composition it may be Elective by the Chapter, and yet the Patronage remain in the Archbishop 
g Ibid. . And where a Parson ought to present to a Vicarage, if the Vicarage become void during the vacancy of the Parsonage, the Patron of the Parsonage shall present 
h 19 E. 2. Qua. Imp. 178. .  
(26.) An Alien, who is a Minister, may be presented to a Church, and Anciently it was usual for Aliens to have Spiritual promotions here, and prior's Aliens had great possessions in England, and were Parsons Appropriate 
i Rol. Abr. ver. Presentm. lit. L. 4. ; yet by the Statutes of 13 R. 2. & 1 H. 5. Frenchmen are disabled from having Benefices in England, and Frenchmen denizoned: Sed Qu. whether they continue of force at this day 
k Rol. ibid. . And if a mere layman, or a man altogether illiterate, be presented, Instituted, and Inducted, it is not in Construction of the Common Law a mere Nullity, but such are Parsons de facto; but if a Woman be Presented, Instituted and Inducted, it is a mere Nullity at that Law, because her Incapacity is apparent 
l Ibid. & Hob. 209. .  
(27.) If a man present his Clerk to the Bishop, and he die before he is received, he may present another; and although a man hath presented his Clerk to the Bishop, yet he may present another at any time before the Bishop shall have received such his Clerk 
m 38 E. 3. 36 b. Rol. Abr. ubi supr. lit. O. .  
(28.) If J. S. Present, and his Clerk be Admitted and Instituted; before Induction J. D. cannot Present his Clerk, for the Church was Full before as to a Common person, for by the Institution he had Curam animarum: But where a Common person Presents, and his Clerk be Admitted and Instituted, yet before Induction the King (if he hath Right) may Present, and his Clerk shall be Instituted; for the Church is not Full as against the King before Induction 
n Vid. Rol. ibid. lit. Q. . But if the King hath not right to the Church, in that case the Church is Full by the Admission and Institution of a Common person's Clerk without Induction, as against the King, so as that he may not in that case Present 
o Ibid. nu. 3. .  
(29.) If a Bishop Collate without any good Title of Lapse or otherwise, and then the Patron die after the Six months clasped, and his Executor bring Quare Impedit by force of the Statute of 4 E. 3. and the Bishop and Incumbent plead Plenarty by Six months, it was Adjudged no Plea on Demurrer, for that the Collation is not any Plenarty, being tortuous 
p P. 32 El. B. R. Rot. 2065. inter Executors of Smalwood and the Bish. of Coventry and Lichfield. . Also if a Bishop Collate without a good Title of Lapse, it puts not the Patron out of possession; but he may Present afterwards, albeit the Bishop's Clerk were Instituted and Inducted 
q Co. 6. Green 29. b. & Boswell 50. Co. Lit. 344. .  
(30.) A Common person may Present to a Church per Parol; and if it be by Writing, yet it is not any Deed, but only in nature of a Letter to the Bishop 
r Co. Lit. 120. . Also the King may Present either by his Letters 
s 2 E. 1. Rot. Patentium membran. 5. , or per Parol without Writing 
t 19 E. 3. Quare Imp. 60. Agree. Co. Lit. 120. . But if the King be deceived in his Title, it will be a void Presentation 
u Co. 6. Green 29. b. Dubitatur. D. 16 El. 327. 6. Co. 6. Green 29. b. adjudge. . And if the King grant a Presentation by his Letters by the words [damus Concedimus] without other words of Presentation, yet it seems it shall amount to a Presentation, and be a sufficient Warrant for the Bishop to Institute him. Dubitatur 19 E. 3. Quare Impedit, 60. A Common person by his Letter or his Word may make a Presentation to a Benefice to the Bishop; the King may Present by Word, if the Ordinary be present; if the King under any Seal present, it is good: And Mich. 10 Jac. it was held by the whole Court, that a Presentment under the Great Seal, to a Church parcel of the duchy of Lancaster is good, and needed not to be under the Dutchy-Seal 
x Dom. Rex verse Emerso. Tri●. 8 Jac. rot. 1811 Brown●. Rep. par 1. Act on Queen Imp. . Where a man accepts a Second Benefice with Cure, without a Dispensation or Qualification, the First Benefice is void, and the Patron may Present; but if he doth not Present, then if it is under value, no Lapse shall incur until there is a Deprivation and Notice: But if it be above value, than the Patron must Present within Six months'. 
y Hill. 22 & 23 Car. 2. C. B. Rot. 680. Shute vers. Higden. Vaugh. Rep. and Arguments. .  
The King seized of an Advowson in the Right of his duchy of Lancaster, Presented to it under the Great Seal, and not under the Seal of the duchy. And Resolved, That the Presentation was good, for the Presentation is but a Fruit fallen from the Tree, and the King may Present by word, because a Presentation is but a Commendation of the Clerk to the Ordinary 
a The King and Bish. of Lincoln and King, Case. More's Rep. .  
A man seized of an Advowson in Fee granted to another and his Heirs, that when the Church should become void, that the Grantee and his Heirs should Nominate a Clerk to the Grantor and his Heirs, and he and his Heirs should Present him to the Ordinary. Resolved, 
Mich. 5 Eliz. More's Rep.  That if he who hath the Nomination Present, he which ought to Present shall have a Quare Impedit against him, and è contra.  
In Beverley and Cornwell's Case it was Resolved, That if any Advowson comes to the Queen for Forfeiture by Outlawry, and the Church becomes void, 
Pasch. 30 Eli. More's Rep.  and the Queen Presents, and then the Outlawry is reversed for Error, yet the Queen shall enjoy the Presentment, because it came to the Queen as a profit of the Advowson; but if the Church be void at the time of the Outlawry, and the Presentment be forfeited as a Chattel principal and distinct, and then the Outlawry is reversed, the party shall have Restitution of the Presentment.  
(31.) If the King dies before his clerk's Admission and Institution, it is a Revocation in Law of his Presentation 
b M. & H. 8 Jac. in Scac. inter Calvert & Kitchen, pe●r Cur. . Or if the King Present one to a Benefice, and then Present another to the same without Revoking the former, or making any mention thereof; yet this also is a Revocation in Law of that former 
c Ibid. & D. 12 El. 292. 70. 16 El. 327. 4. , unless the Second were by fraud or surreptitiously obtained. Likewise, if the Kings Presentee dies after Institution, and before Induction, that also is a Revocation in Law, because the King had not the effect of his Presentation, and so shall Present again 
d Dubitatur, D. 18 El. 348. 12. Co 9 Holt. 132. Said to be Resolved in the said Case of 18 El. D. 20 El. 360. 7. admit. . Or if the King Present, and then before Institution revoke the same, but before Notice thereof to the Ordinary, the Ordinary Institute and Induct him; yet it seems that Presentation is well revoked in Law, and the Notice thereof to the Ordinary is not material as to the substance of the Revocation, but only to discharge him from being a Disturber. D. 12. El. 292. adjudged. Dyer makes a Quaere thereof. Dubitatur D. 16 El. 328. Vid. 25 E. 3. 47. & Rol. Abr. ubi supr. lit. U.  
(32.) If the Patron, who Presents his Clerk, be Excommunicated, it is a good cause of Refusal of the said Clerk 
e 15 H. 7. 7. b. ; it is also said to be so hold in the Books of the Common Law 
f Co. 5. Spe●ot. 58. Rol. ibid. . And where there are Three joint-tenants of the same Advowson, or of the next Avoidance, and only one or two of them Present, the Bishop is no Disturber if he refuse the Clerk so Presented; for he is not bound to Admit the Clerk, unless all the joint-tenants join in the Presentation 
g D. 14 El. 3. 4. 54. Rol. ib. lit. Y. . But where there are Three Grantees of the next Avoidance, and the Church become void, and Two of them Present the Third being a Clerk, the Ordinary in that case is to Admit him, for that he cannot join in a Presentation of himself, and he may relinquish his Title, and accept the Presentment of the others 
h 2. D. 14 El. 304. 54. Rol. ibid. .  
(33. A. the Defendant had been Parson for Three years, and pleaded Plenarty generally by Six months of the Presentation of one Styles, a Stranger to the Writ: and the Court held the Plea to be naught, because the Defendant shown no Title in Styles 
i Cronwel vers. Lister. Brownl. Rep. pa. 1. Actions on Qua. Imp. .  
(34.) In the Case between Phipps and Hayter Prohibition was granted for the Church of T. the Suit being in the Arcbes after Induction to avoid the Institution, for that the Institution was made after a Caveat entered, Not to grant Institution, etc. for that doth not make the Institution void at the Common Law 
k Mich. 15 Car. B. R. between Phipps and Hayter, per Cur. & Hutton's Case. Hob. Rep. .  
(35.) In a Quare Impedit; A. and B. severally Patrons of the moiety of the Church of S. in Fee to Present by Turns; A. Presents his Clerk, who is Admitted and Inducted. The Church is void again, B. Presents his Clerk, who is likewise Inducted, and after is deprived. The Bishop Collates without giving notice of the Deprivation. A. grants his Advowson to J. S. in Fee; the Clerk Collated by the Bishop died: B. Presenteth, and is disturbed. Resolved, (1) When A. had right to Present upon the Deprivation, as in his Turn (although the Collation of the Bishop was not good) yet it was but a thing in Action; and when he had granted the Advowson over, the Grantee could not have this thing in Action, nor the Grantor could not have it, for he had destroyed it, and so none could have it. (2) Resolved, although the Grant was sufficient to pass the Advowson in Fee, yet the Collation of the Bishop was good against all, but against the very Patron, so as he might have removed the Incumbent by a Quare Impedit; but when he doth not remove him, so as he dies Incumbent; this is as a serving of his Turn, and a good Plenarty and Incumbency against him 
l Hill. 40 El. B. R. Leak and the Bishop of Coventry's Case. Cro. par. 1. .  
(36.) In a Quare Impedit the Defendant pleaded, That the Divine Service there was in the Welsh Tongue, and the Parishioners understood not the English; and the Presentee could not speak Welsh, and therefore he refused him: It was the Opinion of all the Justices, That it was a good cause of Refusal of him, for he cannot instruct his Flock according to his duty and charge. 
Albany and the Bishop of St. Asaph's Case. Cro. par. 1. . But in this Case it was held, That Notice ought to be given to the Patron himself, if he be within the County, if not, public Intimation to be on the Church-door.  
(37.) In a Quare Impedit brought in a Case between La. and Le. it was held, That the King cannot be a Disturber; but the Bishop may be a special Disturber; and in that case it was said, It is good policy upon every Presentation by Usurpation, to bring a Quare Impedit as speedily as may be; and it is as good policy to name the Bishop in the Writ, 
Mich. 3. Jac. B. R. Lancaster and lows Case. Cro. par. 2.  for than he shall not Collate for Lapse, if the Church remain void Six months; nor shall the Metropolitan Collate, if the time come to him, for the same Lapse: For it was said to be a Rule, That the Metropolitan shall never Collate for Lapse, but when the immediate Ordinary might have Collated, and hath surceased his time: and in such case the Ordinary cannot Collate, because he is made party to the Writ.  
(38.) In a Case between Benet and the Bishop of Norwich it was Adjudged, 
Cro. par. 1.  That if the next Avoidance of a Church be granted to A. and B. and A. Release to B. and after the Church become void; in that case B. may Present, and upon Disturbance have a Quare Impedit in his own Name.  
(39) If the Bishop shall for Insufficiency refuse the Clerk that is Presented to him, 
Pasch. 26 El. B. R. the Bish. of Hereford's Case. Cro. par. 1.  he may not afterwards Admit him: and therefore where the Patron Presented J. S. his Clerk to the Bishop, and upon Notice by the Bishop given to the Patron of the Insufficiency of the Clerk, the Patron Presented another Clerk, and then the Bishop Admits the first Clerk which was Presented within Six months: In this case it was Adjudged, That the Bishop was a Disturber for having once refused him for Insufficiency, he cannot afterwards accept of him.   

CHAP. XXIV.  
Of Examination, Admission, Institution, and Induction.  

1. What is here meant by Examination, where enjoined, how, and by whom, and at what times to be performed.  
2. In what case the Bishop is held at Common Law a Disturber, in refusing one Clerk and Admitting another.  
3. The Ordinary, as he is not obliged to Examine the Clerk at some certain times; so he may not refuse to examine him during all the Six months.  
4. Although the Six months be elapsed, yet if the Patron Present, the Church not being Full, the Bishop ought to Admit his Clerk.  
5. How an usurpation upon a Lease for years puts the very Patron out of possession.  
6. Admission what; and under what qualifications it ought to be.  
7. What the Remedy, where the Ordinary doth refuse to Admit the Clerk; the Form of such Admission.  
8. What Institution is, and the Form thereof according to the Canon Law; what required of the Clerk in order thereto, and his Remedy in case the Ordinary denies him such Institution as he may claim by Law.  
9 Matters of Institution properly cognizable in the Ecclesiastical Courts, yet in certain Cases not exclusively to the Common Law or Temporal Jurisdiction.  
10. Institution gives the Parson jus ad rem, not jus in re.  
11. Whether Institution without Induction works a plenarty? also whether it be good, being Sealed with another Seal, and done out of the proper diocese? The difference between the Common Law and the Canon Law as to a Coveat entered before Institution.  
12. Whether Suit may be in the Ecclesiastical Court to remove an Incumbent after Induction?  
13. Whether the First-Fruits be due upon the Institution before Induction?  
14. A Case at Common Law touching Resignation; and whether it may be made Conditionally?  
15. A Case touching the Rightful Patron's Presentation, after the Induction of another by usurpation.  
16. What Induction is, and the Bishop's Order therein.  
17. Induction is a Temporal, not Spiritual Act: In what manner it is to be executed.  
18. A Caveat entered in the Life-time of an Incumbent is void.  
19 In what Case an Induction made by a Minister not resident within the Archdeaconry, may be good.  
20. Institution to a Minor and underage is merely void.  
21. Whether after Induction, the Institution may be questioned in the Ecclesiastical Court.  
22. Whether Incumbency be triable only at Common Law.  
23. In what Court the validity of Induction is determinable.   
(1.) EXamination is that Trial or Probation, which the Bishop or Ordinary makes before his Admission of any person to holy Order or to a Benefice, touching the qualification of such persons for the same respectively. So that there are Two certain times or seasons especially, wherein this Examination is required; the one before an Admission to Holy Orders, the other before an Admission to a Benefice. The former of these is expressly enjoined by the 35th Canon Ecclesiastical, whereby it is required, That the Bishop, before he Admit any person to Holy Orders, shall diligently Examine him in the presence of those Ministers that shall assist him at the Imposition of hands, or in case of any lawful Impediment of the Bishop, than the said Examination shall be carefully performed by the said Ministers, provided they be of the Bishop's Cathedral Church, if conveniently it may, otherwise by at least Three sufficient Preachers of the same diocese. And in case any Bishop or Suffragan shall Admit any to Sacred Orders, who is not Examined as is before ordained, then shall the Archbishop of the Province, having notice thereof, and being assisted with one Bishop, suspend the said Bishop or Suffragan from making either Deacons or Priests for the space of Two years 
a Canon 35. Ecclesiastical. . So also when the Clerk is Presented by the Patron of the Advowson, before he be Admitted as Clerk to serve the Cure, the Ordinary is to Examine him of his Ability: For if upon his Examination he be found unable to serve the same, or be Criminous, the Ordinary may refuse to Admit and Institute him into the Benefice 
b Co. 5. par. Specot's Case. . By the Ancient Cannons the Bishop hath Two months' time to inquire and inform himself of the sufficiency and quality of every Clerk Presented to him, as appears by the Canon in 1 Jac. cap. 95. But by the said Canon it is Ordained, That the said Two months shall be abridged to 28 days only 
c Rol. Abr. ver. Prese●tm. lit. X. . Upon sufficient enquiry and Examination the Ordinary may accept or refuse the Clerk Presented, and regularly all such matters as are causes of Deprivation, are also causes of Refusal 
d Co. 2. Specot. 58. ; but for a Presentce to have another Benefice, is no cause of Refusal, for that is at his own peril; and possibly the Second Benefice is more worth than the former, which only is void in such case 
e 14 H 7. 28. b. Cariae. .  
(2.) If the Bishop doth demand of the Clerk his Letters of Orders, and Letters Testimonial of his good behaviour, and the Clerk requires time to show them, as the space of a week or the like, because he hath them not there with him; and the Bishop doth thereupon Refuse him to the Church, and Presents another: the Bishop in such case hath been adjudged to be a Disturber; for the Statute of 13 Eliz. doth not compel the Clerk to show his Orders, nor Letters Testimonial of his good Behaviour: And so it was Adjudged 
f Pasch. 33 Eliz. C. B. 〈◊〉 and the Bishop of Peterborough's Case. Leon. 230. . Yet by the 39th Canon it is by way of Caution expressly Ordained, That no Bishop shall Institute any of a Benefice, who hath been Ordained by any other Bishop, except he first show unto him his Letters of Orders, and bring him a sufficient Testimony of his former good life and behaviour, if the Bishop shall require it.  
(3.) Examination of the Clerk is to be done at a convenient time within the Six months; for the Ordinary cannot refuse to Examine the Clerk during all the Six months, and so suffer a Lapse to incur to himself; for by so doing the Patron should lose his Presentation, and the Ordinary take advantage of his own wrong. But if the Ordinary, when the Clerk comes to be examined, Sedet circa curam Pastoralem, he is not then obliged to leave the business in hand, and presently Examine the Clerk; but he may appoint a convenient time and place for the Examining of him 
g Mich. 15▪ Jac. C. B. adjudged. vid. acc. 5 H. 7. 7. C●. 5. par. Spec●t's Case. . This Examination by the Diocesan, touching the Conversation and Ability of such as were ordained to Peach the Word of God, or Presented to a Benefice, is enjoined by the Provincial Constitutions. Lindw. de Haereticis, cap. 1.  
(4.) A Quare Impedit was brought by B. against the Bishop of Rochester, who pleads, that he claims nothing but as Ordinary; and yet pleads further, That the Clerk which the Plaintiff Presented, had before contracted with the Plaintiff Simmiacally, and therefore because he was Simoniacus he refused, and that the Church was then void, and so remained void; whereupon the Plaintiff had a Writ to the Archbishop of Canterbury, who returned that before the coming of this Writ, viz. 4. July the Church was Full of one Dr. Grant, ex Collatione of the said Bishop of Rochester, who had Collated by Lapse, and this Return was adjudged Insufficient: First, it is clear, That though the Six months' pass, yet if the Patron Present, the Bishop ought to Admit, although it be after the Title devolved unto the Metropolitan: And it seems also Reason, that he ought to Admit, though that the Title by Lapse be accrued to the King, for he claims it as supreme Ordinary. Vid. Dyer 277. quaere. But in this Case the Bishop who is the Defendant is bound by the judgement, and the Writ is, notwithstanding the claim of the Bishop, that he Admit the Clerk; for the Bishop ought to execute the Process of the Court. It was urged by sergeant Henden, that there is a Canon in Lindwood, That if the Church be vacant when the Writ comes to the Bishop, that he is bound to execute the Writ; but if it be Full, than he certifies the Justices: And the Archbishop is Sworn to the Canons, and he vouched 22 H. 6. 45. Coke, lib. 6. 49, and 52. Dyer 260. F. N. B. 47. Dyer 364. 14 H. 7. 22. 34 H. 6. 41. 9 E. 3. Quare non admisit. 18. E. 4. 7. 
h ●●oton against the Bishop of Rochester. Hutt. Rep. .  
(5.) In Rud's Case against the Bishop of Lincoln, it was among other things Resolved by the Court, in a Quare Impedit, That when one usurps upon a Lease for years, that this Usurpation gains the Fee, and puts the very Patron out of possession; and though by the Statute of Westm. 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void, or may Present and if he Present, and his Clerk be Admitted and Inducted, that then he is Remitted; yet until it be recovered, or his Clerk be in, the Usurper hath the Fee, and against him lies the Writ of Right, etc. Also that the Patron, which hath recovered in a Quare Impedit, may Present, and that being accepted, and Institution and Induction ensuing thereupon, it is good 
i Rud. verse. the Bishop of Lincoln. Hutt. Rep. .  
(6.) Admission is when the Bishop upon Examination of the Clerk Admits him to be able and sufficient, saying, Admitto te habilem 
k Co. on Lit. fo. 334. a.  The Lord Coke in the Fourth Part of his Institutes says, That upon consideration had of the several Statutes 
l 3 R. 2. 7 H. 4. 1 H. 5. & Rot. Bar. 6 H. 4. nu. 48. & 4 H. 6. nu. 29.  (whereof mention is there made,) If an Alien or Stranger born be Presented to a Benefice, the Bishop ought not to Admit him, but may lawfully refuse him 
m Co 4. par. Instit. cap. 74. §. Consistory Courts. . There are several things which the Statute-Law of this Realm doth require in him, which shall be Admitted to a Benefice; for no person may be Admitted to any Benefice with Cure, except he then be of the Age of 23 years at least, and a Deacon, and shall first have subscribed the 39 Articles in the presence of the Ordinary, and publicly read the same in the Parish-Church of that Benefice, with Declaration of his unfeigned Assent thereunto; and except he be Admitted to Minister the Sacraments within one year next after his Induction (if he were not so Admitted before) he shall upon every such default be ipso facto deprived. And none shall be made a Minister, or Admitted to Preach or Administer the Sacraments under the Age of 24 years, and unless he bring with him to the Bishop a sufficient Testimonial, and be able to render an Account of his Faith in Latin. All which appears by the Statute of the 13th of Eliz. whereby it is likewise Provided, That none shall be Admitted to any Benefice with Cure, of or above the yearly value of Thirty pounds in the King's Books, unless he shall then be a bachelor of Divinity, or a Preacher lawfully allowed by some Bishop within this Realm, or by one of the Universities of Oxford or Cambridge; and that all Admissions to Benefices, Institutions, Inductions, Tolerations, Dispensations, Qualifications, and Licenses whatsoever, made contrary to the premises, shall be utterly void in Law 
m St. 13 El. cap. 12. . And by the Three and thirtieth Canon of the Ecclesiastical Constitutions, Ratified and Confirmed by King James under his Letters Patents, An. 1603. it is in Conformity to many Decrees of the Ancient Fathers, further Ordained, That no person shall be Admitted into Sacred Orders, except he shall at the same time Exhibit to the Bishop a Presentation of himself to some Ecclesiastical Preferment then void in that diocese; or bring to the said Bishop a True and undoubted Certificate, that either he is provided with some Church within the diocese, where he may attend the Cure of Souls, or of some Ministers place vacant, either in the Cathedral of that diocese, or in some other Collegiate Church therein also situate, where he may exercise his Ministry: Or that he is a Fellow, or in right as a Fellow, or to be a Chaplain in some college in Oxford or Cambridge: except he be a Master of Arts of Five years standing, that liveth of his own charge in either of the Universities: or except by the Bishop himself that doth Ordain him Minister, to be shortly after to be Admitted either to some Benefice or Curateship then void. And in case any Bishop shall Admit any person into the Ministry, not qualified as aforesaid, he is to keep and maintain him, till he prefers him to some Ecclesiastical Living, on pain of Suspension for one year from giving or Orders, by the Archbishop assisted with another Bishop 
n Canon Ecclesiastical 33. .  
(7.) If a Bishop shall refuse to Admit the Clerk, the Writ of Quare non Admisit may lie in the Case 
o Hill. 8 Car▪ B. R. rot. 454. Cort vers. Episc. St. dau. Croke. ; yet the Ordinary, before he Admits the Clerk Presented, may take a reasonable time to examine him; and if upon Examination there be just cause of Exception in respect of the Clerk Presented, or otherwise in respect of the Patron Presenting, he may justify the non- Admission of him, for this Admission is no other than the ordinaries Allowance of a Clerk Presented to a Church that is void. But if the Bishop refuse to Admit the Clerk Presented to him by the Patron, as scrupling the said Patron's Right of Presentation, and the said Patron after recover his Right of Presentation against the Bishop in the Common Bench, he shall then have the Writ of Admittendo Clerico 
p F. N. B. fo. 38 and Regist. of Writs, fo. 33. a. . Hobart Chief Justice, in the case of Colt and Glover against the Bishop of Coventry and Lichfield, compares this Admission and such Acts of the Ordinary to the Admittance of a copyholder upon Surrender, specially where the Admission of one be upon the Resignation of another Incumbent: And he is there of opinion, That if a Parson Appropriate (which is Patron) Present, and his Clerk be not Admitted, but refused for just cause and Notice given, the Lapse shall incur 
q Mich. 10 Jac. rot. 2642. Colt & Glover vers. Bish. of cou. & Lichf. Hob. Rep. . The usual Form or Tenor of an Admission into a Rectory or Parsonage runs in this manner, viz. 〈◊〉 A. B. by virtue of this Instrument from John Lord Bishop of L. in his Triennial Visitation, To all Clerks, Rectors, Vicars, Ministers, Chaplains, and Curates whatsoever within this diocese directed, do Admit F. G. into real, actual, and corporal possession of this Church of R. together with all the profits, deuce, members and appurtenances whatsoever thereunto belonging, In the presence of those whose Names are under-written.  
(8.) Institution according to the Canon Law, is no other than a Verbal Collation to a Benefice or some other Ecclesiastical Living, De Instit. lib. 4. Decretal, & Sexti. and is by that Law taken for an Investure, c. ad haec, de Offic. Archid. c. cum venisset. dic. tit. de Inst. For when among the Romans a Clerk was Instituted, the custom was, that by a Verbal Collation the Clerk was invested in the Benefice by the delivery to him of a Ring, Staff, cap., Pen, or the like, in the nature of Livery and Seisin, in token of his possession of the thing to which he was so Instituted: c. cum olim, de re Judic. cap. ex ore, de iis quae si à Praelat. & cap. ut nostrum, de Office. Archidiac. Somewhat in resemblance to our tenants by the Verge, or such as are Admitted by the Rod in a Court of ancient Demesn. But this Institution, as practicable with us, consists in the Letters of Institution directed from the Bishop or Ordinary, in whose diocese the Church is, to the Clerk the Presentee, by which he Admits him as lawful Incumbent to that vacant Church whereto he is Presented by the Patron thereof; the said Clerk having not only first taken the Oaths of allegiance and Supremacy, with Renunciation of all Foreign Powers and Jurisdictions, according to the Laws and Statutes in that behalf provided, but also of Canonical Obedience to the Bishop of that diocese and his Successors, and that he hath made no Simoniacal Contract, for or concerning the said Presentation; whereupon the said Bishop or Ordinary doth by his said Letters of Institution constitute and invest the said Clerk Rector of the Rectory of the said Parochial Church, cum cura animarum Parochianorum, together with all Rights, privileges, and Emoluments belonging to the same, Juribus & Consuetudinib●s Nostris Estiscopalibus, & Ecclesiae nostrae Cath, etc. Dignitate & honore in omnibus semper salvis. Dioecesis idem significat in effectu quoad Jurisdictionem Ecclesiasticam, quod Territorium quoad Jurisdictionem Temporalem. Ita Andrae, & DD. in c. cum Episcopus, de Offic. Ord. lib. 6. Dioecesis significat locum Spiritualem, sicuti Territorium locum Temporalem. Alberic. in suo Dict. ver. Dioecesis. This Institution to a Benefice may not, by the 39th Article of the Canons, be to any person preordained, except he first show the Bishop his Letters of Orders, as also (if he require it) a Testimonial of his former good life and behaviour. Moreover, by the Law he is obliged to subscribe the Articles of Religion, to Swear Canonical Obedience to the Archbishop of Canterbury and his Successors, and to his Diocesan; and for his Personal Residence, if it be a Vicarage. Juram entum de Canonica Obedientia, viz. Ego A. B. juro, quod praestabo veram & Canonicam Obedientiam Episcopo Londinensi ejusque Successoribus, in omnibus licitis & honestis. Sic me Deus adjuvet. If a Clerk should kill his Prelate, to whom he hath Sworn Canonical Obedience, it is Petty Treason. Vid. 19 H. 6. 47. b. vid. Stat. 25 E. 3. De Prodic. cap. 2. But if the Diocesan, notwithstanding the exhibiting the Presentation before him, or his Vicar General, having power to Institute, and notwithstanding Requisition made him by the Clerk Presented in order to Institution, shall refuse to Institute and Admit him, he may thereof enter his Complaint before the Dean of the Arches, who thereupon sends his Letters to the said Bishops, which Letters or Rescript is termed Duplex Querela: So that as to the substance of the premises touching this Subject, the practice with us at this day doth well nigh correspond with the Ancient Canon Law, whereby it is expressly Ordained, lib. 3. Decretal. That all Ecclesiastical live and Benefices shall be had by Institution, to be by the Bishop or his Chancellor, or such other as hath Episcopal Jurisdiction, positively declaring, That without such Institution neither any Benefice is lawfully obtained, nor can be lawfully retained: Adding withal, That Benefices void aught to be granted within Six months after knowledge of the avoidance thereof, otherwise the Grant thereof devolves and comes to the superior; and that he who doth cause or procure himself to be Instituted into a Benefice, the Incumbent thereof being alive, shall be deposed from his Orders. Decretal. ibid.  
(9) Albeit the Cognisance of this matter of Institutions is so properly and connaturally inherent in the Ecclesiastical Jurisdiction, yet the Temporal and Common Law it seems hath in some cases took notice thereof▪ for it is there Reported, That every Rectory doth consist upon Spiritualty and Temporalty: As to the Spiritualty, viz. Cura animarum, the Presentee is complete Parson by Institution; for when the Bishop upon Examination finds him able, than he doth Institute him in these words, viz. Instituo te ad tale Beneficium & habere Curam animarum, of such a Parish, Accipe Curam tuam & meam 
r 4● El. B. R. Co. 4. par. 79. 〈◊〉 Case. . And the very Institution to a Benefice the Law understands as an Acceptance and the having of a Benefice; as in that Case of Digby; where it is held, That if a Clerk be Presented, Admitted, and Instituted to a Benefice with Cure, to the value of 8 l. and afterwards and before Induction he accepts of another Benefice with Cure, and is Inducted in the same; the First Benefice is void by the Statute of 21 H. 8. For the words of the Statute are, A Parson, having one Benefice with Cure, etc. Accept and take another, etc. And he who is Instituted to a Benefice, is said to have Accepted a Benefice, and to have a Benefice 
s Co. ibid. Digh. Case. . And he that is Instituted, may enter into the Glebe-Lands before his Induction, and hath Right to have it against any Stranger whatever 
t Pasch. 13 Jac. B. R. per. Co. Rol. Rep. . And albeit by the Civil and Canon Law an Institution granted after a Caveat Entered is void, yet by the Common Law it is otherwise 
u P. 13 Jac. B. R. Case Hitchin and Glover. Rol. Rep. ,  
(10.) By the Institution the Parson hath only Jus ad rem, he hath not Jus in re until he hath Induction; and therefore if a Prebendary, Parson, or Vicar, after he is Admitted and Instituted, and before he be Inducted, grant an Annuity out of his Prebend, Parsonage, or Vicarage, and the same be Confirmed by the Patron and Ordinary, or by the Dean and Chapter, yet this shall not charge the Glebe, or the Successor of the Prebendary, Parson or Vicar; for although by his Institution he hath (as aforesaid) Jus ad rem, yet he hath not Jus in re, but the charge in such case shall lie upon the person of the Prebendary, Parson, or Vicar, and not upon the Lands 
x 5 Eliz. Dyer 221. vid. Hare and Birkley's C. blow. Com. 528. acc. .  
(11.) The Church at this day, since the Statute of Westm. 2. is not Full by Institution of the King; and therefore if the King hath a Title by Lapse to Present pro hac vice, and he Presents, and his Clerk be Instituted, but dies before Induction, the King in that case may Present again; and so it hath been Adjudged 
y 18 Eliz in Giles Case. vid. Co. 10. par. 132. in Holts Case. vid. 18 Eliz. . Which plainly shows, that Institution without Induction doth not work a Plenarty. It hath also been held, That the Letters of Institution Sealed with another Seal, and made out of the diocese, is good Dyer, 348. Weston's Case. acc. enough 
z Hill. 8 cham rot. 454. B. R. Cort vers. Bishop of St. David's. Cro. Rep. . Of if a Caveat be Entered with a Bishop, and he after grant Institution, yet the Institution is not void by the Common Law; otherwise by the Spiritual Law 
a Pasch. 13 Jac. B. R. Hitchings vers. Glover. Rol. Rep. . Notwithstanding what was just now said, it is Adjudged in digby's Case, That a Benefice is taken, received, and had by Institution only; and therefore a Qualification or Dispensation following comes too late 
b Co. lib. 4 7 9 . So that if a man having one Benefice with Cure by Institution only, accept another by Institution only, without Dispensation, the Common Law makes Avoidance Actual, if the Patron will 
c Mich. 10 Jac. rot. 2642. Colt & Glover verse. B. of cou. and Lichf. Hob. R. .  
(12.) Proceed being in the Ecclesiastical Court to remove an Incumbent after Induction, a Prohibition was granted to stay the same: One Oliver sued a Quare Impedit against Hussey, and while that depended, Hussey was Instituted and Inducted, and Oliver sued Hussey in the Spiritual Court to remove him. Noy prayed a Prohibition, First because he may not sue in Two Courts for the same cause: Secondly, because it is a Suit after Induction; and upon that last point the Court granted a Prohibition 
d Oliver vers. Hussey. Latch. Rep. .  
(13.) In the Case of Dennys against Drake it was said, That if a man be Instituted to a Benefice, he ought to pay the First-Fruits before Induction by the Statute: But by the Common Law it was otherwise; for he is not to have the Temporalties until Induction, and therefore he could not pay the First-Fruits; but another person cannot be Presented to his Benefice during the continuance of the First Institution. And an Institution to a Second Benefice is a present Avoidance of the First 
e Case Dennys verse. Drake. Lane's Rep. Vid. Co. lib. 4. digby's Case fo. 79.   
(14. G. Parson of the Church of E. did by Instrument in Writing Resign his Benefice before a Notary public, and others, into the hands of the Bishop; and the Resignation was absolute and voluntary, and to the use of M. and B. or either of them. And it was further in●erted in the said Instrument of Resignation, 
Resignation of a Benefice.  Protestatione & sub Conditione, quod si aliqui eorum non Admissi fuerant per assentum Episcop. infra Sex menses, quod tunc haec praesens Resignatio mea vacua & pro nulla habeatur, & nunc prout tunc, & tunc prout nunc; and Cestuy que use came within the time limited to the Bishop, and did offer to Resign to him, which the Bishop refused to accept, etc. Crook for the Plaintiff: Forasmuch as the Plaintiff may Resign on Condition as well, as a particular Tenant may Surrender upon Condition: And Two Parsons may Exchange, and if the Estate be Executed on the one part, and not on the other, that Parson whose part was not Executed, may have his Benefice again, as it is Adjudged in the 46 E. 3. But Coke Sollic. and Godfrey were on the contrary Opinion: For that the Incumbent may not Transfer his Benefice to another without Presentation, as appears in the recited Case of 46 E. 3. Also the Resignation is not good, and the Condition void, because it is against the nature of a Resignation, which must be Absolute, Sponte, pure, & Simpliciter, and is not like to a Condition in Law, as in the said Case of Exchange of 46 E. 3. for the Law doth annex a Condition to it, but a collateral Condition cannot be annexed by the parties themselves: Also this is an act Judicial, to which a Condition cannot be annexed, no more than an Ordinary may Admit upon Condition, or a judgement be confessed on Condition, which are Judicial Acts. But admitting the Condition to be good, yet a new Induction ought to be made by the Ordinary, for the Church became one time void, and is not like to the Case in 2 R. 2. Quare Impedit, 143. Where Sentence of Deprivation was given, and the Sentence presently reversed by Appeal, there needs no new Institution, for that the Church was never void. And upon Arguments given in Writing by the Civilians to the Judges, the judgement was entered, Quod querens nihil capiat per Billam 
e 34 Eliz. C. B. Gayton's Case. Owen's Rep. .  
(15.) In Rud's Case against the Bishop of Lincoln, it was (inter alia) Resolved by the Court, That when one having a good Title to Present, and an Incumbent by Usurpation is Admitted, Instituted, and Inducted, and after that the Patron Presents, and the Bishop refuse, and after the Patron recover, and then he which had this Presentation, exhibits it to the Bishop; this is now a good Presentation; and the Patron cannot revoke or give him a new Presentation: But if the Patron before the death of the Incumbent make Letters of Presentation, that is void, because he had no Title to Present 
f The aforesaid Case of Rud verse. the Bishop of Lincoln. Hutt. Rep. .  
(16.) Induction is nothing else but the putting of the Parson into Actual possession of the Church and Glebe, which are the Temporalties of the Church; or the making of a Clerk complete Incumbent of a Church: This is Induction 
g 15 H. 4. 76. b. 14 H. 6. Qua. Imp. 162. 38 H. 6. 15. , and it is by Letters from the Bishop of the diocese directed to all and singular the Clerks, Rectors, Vicars, etc. within the said diocese, to put the Clerk or his lawful Attorney for him, and in his name into the Actual possession of the Church to which he had been Presented and Instituted, together with all the profits, deuce, members, and appurtenances whatsoever thereunto belong or appertaining; of the due execution whereof a Certificate endorsed on the Instrument of Induction, and subscribed by a competent number of Witnesses ought to be returned to the said Bishop or Ordinary; who may appoint the Archdeacon to give Induction 
h ●8 E. 3, 3. b. , yet by Prescription it seems the Dean and Chapter of Paul's, as also the Dean and Chapter of Lichfield may give Induction 
i 1● H. 4. 9 . It is also said, That an Induction made by a Bishop is void, where it belongs to a Dean and Chapter by Prescription 
k Ib. Contr. 14 H. 6. Qua. Imp. 162. adjudged of a Prebend. : But an Induction by the Patron is void 
l 11 H. 4. 10. ; yet the King's Grantee of a Free-Chappel shall be put into possession by the Sheriff of the County, and not by the Ordinary of the place 
m 14 H. 4. 11. b. & Rol. Abr. ver. Presentem. lit. C. .  
(17.) This Induction is not a Spiritual, but a Temporal Act; and therefore if after the Clerk hath been Presented by the Patron, and Admitted and Instituted by the Bishop, the Archdeacon shall refuse to Induct him into the Benefice, an Action upon the Case lieth for the Clerk against the Archdeacon 
n Pasch. 23. Eliz. C. B. add▪ judge. Godb. 23. vid. Fitz. N. B. 47. 26 H. 8. 3. by knightly. . And after the Incumbent is thus Inducted, he may then plead any Plea in Bar of a Quare Impedit brought against him which concerneth his Possession; and so may plead a Release in Bar, because he hath the Freehold in him, which shall not be lost without his Answer 
o 4 H. 8. Dyer 1. : For by this Induction or being led into the Church he hath, as it were, Livery and Seisin thereof given him as the lawful Incumbent by delivery of the Keys of the Church to him, and that by order of the Bishop; whereof Publication is then made to the Parishioners by ringing one or more the Bells 
p Vid. Cro. Rep par. 3. fo. 258. : And albeit a Parson hath his Presentation, Admission, and Institution, and that upon a lawful Title, yet he is not a possessor of the Parsonage according to the Letter of the Law till his Induction 
q Pasch. 17 Jac. C. B. Sir W. Elvis vers. Archbishop of York, and others. Hob. Rep. . Which Induction is (as aforesaid) a Temporal Act, and (as the Opinion of the Court was in Hutton's Case) Triable by Temporal Law; and since by Induction the Church is Full, it is not to be avoided, but by a Suit of Quare Impedit or the like, at the Common Law, and not to be undermined by alleging Insufficiency in the Institution in the Court Ecclesiastical, for that may come in question upon the Trial of the Induction at the Common Law, which will not be good, if the Institution were not good: All which was also the Opinion of the Court in the Case aforesaid 
r Sir Tim. Hutton's Case. C. B. Hob. Rep. ; for if the Question be, whether Parson or no Parson, which comprehends Induction, it is Triable at the Common Law 
s Trin. 13 Jac. B. R. Glover against Shedd. Rol. Rep. . And although by the Institution the Church if Full against all persons save the King, yet he is not complete Parson till Induction; for though he be admitted ad Officium by the Institution, yet he is not entitled ad Beneficium till Induction 
t Plow. 52● b. .  
(18.) In an Ejectione Firmae brought by the Lessee of Rone, Incumbent of the Church of D. it was found by Special Verdict, that the King was the true Patron, and that Wingfield entered a Coveat, in vita Incumbentis, he then lying in Extremis, scil. Caveat Episcopus nè quis admittatur, etc. nisi Convocatus the said Wingfield; the Incumbent dies; Naunton a Stranger Presents one Morgan, who is Admitted and Instituted; afterwards the said Wingfield Presents one Glover, who is Instituted and Inducted, and afterwards the said Rone procures a Presentation from the King, who was Instituted and Inducted: And then it came in● question in the Ecclesiastical Court, who had the best Right; and there Sentence was given, That the First Institution was Irrita, Vacua, & Inanis, by reason of the Caveat, and then the Church being Full of the Second Incumbent, the King was put out of possession, and so his Presentation void: But it was Adjudged and Resolved by all the Court for Rone: For (1) it was Resolved, That this Caveat was void, because it was in the life of the Incumbent. According to the Common Law, if a Caveat be entered with the Bishop, and he grant Institution afterwards, yet it is not void: After a Caveat entered, Institution is not void by the Common Law. Pasch. 13 Jac. B. R. Hitching vers. Glover. Rol. Rep. & Cro. par. 2. (2.) The Church upon the Institution of Morgan was Full against all but the King, and so Agreed many times in the Books, and then the Presentation of Glover was void by reason of the Super-institution, and therefore no obstacle in the way to hinder the Presentation of Rone, and therefore Rone had good Right: And if the Second Institution be void, the Sentence cannot make it good; for the Ecclesiastical Court ought to take notice of the Common Law, which saith, That Ecclesia est plena & consulta upon the Institution, and the person hath thereby Curam animarum. And as Doderidge Justice said, He hath by it Officium, but Beneficium comes by the Induction: And although by the Ecclesiastical Law the Institution may be disannulled by Sentence, yet as Lindwood saith, Aliter est in Angl. And Doderidge put a Case out of Dr. & Student. lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age, and he after sue for it in the Spiritual Court, they ought to take notice of the Time of Full age, as it is used by the Common Law, viz. 21. and not of the time of Full age as it is in the Civil Law, viz. 25. So in this case; for when these Two Laws meet together, the Common Law ought to be preferred: And when the Parson hath Institution, the Archdeacon ought to give him Induction. Vid. Dyer 293. Bedingfield's Case, cited by Haughton to accord with this Case 
u Mich. 15 Jac. B. R. Rones Case. Poph. Rep. .  
(19) By the Court, That if an Archdeacon make a general Mandate for the Induction of a Parson, viz. Vnivers. personis Vicariis Clericis & Literatis infra Archidiaconat. meum ubicunque Constitut. That if a Minister or a Preacher who is not resident within the Archdeaconry, makes the Induction, yet it is good. And the Opinion of four Doctors of the Civil Law was shown in the Court accordingly, upon a Special Verdict 
x Chr. Deans Case. Noy's Rep. .  
(21.) In the Case of Strange against foot, the sole Point upon the Special Verdict was, If one Prideoux being Admitted and Instituted to a Prebendary, with the Cure, 4 Eliz. be being but Nine years of age; notwithstanding the Statute it is merely void. Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue, it is a Bastard 
y Pasc. 2 Jac. C. B. ret. 1320. Strange verse. Foot. Noy's Rep. .  
(21.) It is said at the Common Law, that after Induction, the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court 
z Mich. 12 Jac. B. between Sir Tim. Hutton and the Bish of Chester. ; for they say, That after Induction the Ecclesiastical Law may not call into question the Institution: That by Institution the Church is full against Common persons, but not against the King; and that by Induction the King may be put out of possession 
a Hill. 15 Jac. B. R. Hitcham and Glover's Case. Roll. Rep. . And in the Case between Rowrth and the Bishop of Chester, it was Resolved, That after an Induction, an Institution is not to be examined in the Ecclesiastical Court, but by a Quare Impedit only: But yet the Justices, if they see cause, may write to the Bishop to certify concerning the Institution 
b More's Rep. .  
(22.) Two Patrons pretended Title to Present; the one Presented, and the Bishop refused his Clerk. He sued in the Audience, and had an Inhibition to the Bishop, and after he there obtained Institution and Induction by the Archbishop: Afterwards the Inferior Bishop, Instituted and Inducted the Clerk of the other; for which Process issued out of the Audience against him; he upon that prayed a Prohibition, and a Prohibition was awarded as to the Incumbency, because the Ecclesiastical Courts have not to meddle with Institution and Induction (as was there said) for that would determine the Incumbency, which is triable at Common Law 
c Middleton and Lawte's Case. More's Rep. .  
(23.) In a Prohibition prayed to the Ecclesiastical Court, the Case appeared to be this, viz. Holt was Presented, Instituted and Inducted to the Parish-Church of Storinton: afterwards Dr. Wickham draws him into the Ecclesiastical Court, questioning of him for some matters, as touching the validity of his Induction, and upon this a Prohibition was by him prayed: 
Trin. 9 Jac. B. R. Holt's Case, in Bulstr. par. 1.  William's Justice, A Prohibition here in this Case ought to be granted, this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question, with the determination of which they ought not to intermeddle; also matter of Induction, and the validity thereof is determinable at the Common Law, and not in the Ecclesiastical Court, and therefore a Prohibition ought to be granted, and the whole Court agreed with him herein, and therefore by the Rule of the Court a Prohibition in this Case was granted.   

CHAP. XXV.  
Of Avoidance and Next Avoidance; as also of session.  

1. What Avoidance is; how Twofold.  
2. The difference in Law between Avoidance and next Avoidance.  
3. How many ways Avoidanee may happen; what Next Avoidance is: The word Avoidance falls under a double Acceptation in Law.  
4. The Next Avoidance may not be granted by a Letter, it cannot be granted but by Deed.  
5. Grant of a Next Avoidance by the Son, Living the Father Tenant in Tail, is void.  
6. How Avoidance may be according to the Canon Law, which yet is otherwise by Statute Law.  
7. The Release of the Next Avoidance, made after the Church becomes void, is void.  
8. A wide difference between the Common Law and the Canon, in respect of Plenarty and avoidance.  
9 What session is; and who shall Present in that case.  
10. A Parson Beneficed accepting an Archdeaconry, falls not under this session.  
11. In case of session the Ordinary is to give Notice to the Patron, otherwise the Lapse doth not incur against him.  
12. In what case the former Benefice is not void by session, notwithstanding the taking of another Incompatible, and without Dispensation; And in what case a Church void is held Void as to all persons, except an usurper.  
13. In case of Three Grantees of the Next Avoidance, whether Two of them may Present the Third, being a Clerk.  
14. What difference between an Avoidance by Parliament, and an Avoidance at the Ecclesiastical Law.  
15. In what case an Advowson granted to a man, shall enure to him only for his life, and not go to his Executors.  
16. A man having an Advowson in Fee of the Church, whereof himself is Incumbent, Deviseth that his Executors should next Present; Whether such Devise of the Next Avoidance be good.  
17. A grant of a Next Avoidance to one is not after grantable by the same Grantor to another.  
18. Whether the Greating of an Incumbent a Bishop in Ireland be a sufficient cause of Avoidance.  
19 Where a Next Avoidance is granted to Two, whereof the one Release to the other, that Other may after bring a Quare Impedit in his own Name.  
20. If one Grantee of the Next Avoidance Present the other Grantee of the same Avoidance, whether such Grant be void or not?   
(1.) AVoidance is, when a Benefice or other Ecclesiastical Living is void of a lawful Incumbent: which generally may be said to be Twofold; either in Fact and in deed, as when the Incumbent is dead, or actually deprived: or in Law, as when the same person or Parson hath more Benefices than one Incompatible, having no Dispensation, nor qualified for Plurality 
a Bro. tit. Quare Imp. nu. 51. . Or an Avoidance is either Temporal or Spiritual: (1) Temporal, as by death of the Incumbent. (2) Spiritual, as by Resignation, Deprivation, Creation, session. The Temporal is an Avoidance de facto; the Spiritual is an Avoidance de jure. Of this latter or Spiritual Avoidance the Ecclesiastical Court takes cognizance and determines, and therefore the supreme Head may so dispense there, that such Avoidance in Law shall never come to be an Avoidance in Deed; and of this Avoidance in Law no Title accrues to the Patron, unless something be thereupon done by the Ecclesiastical Court, as a Declaratory Sentence, or such like. But upon Avoidance in Deed, Presentment accrueth to the Patron presently. Anciently when a Bishop was also the Parson of any Benefice, either in right of his bishopric, or that the Benefice was annexed to his See, for the provision of his Table, or the better maintenance of Hospitality, the Fruits of such Benefice or Parsonage, during every vacancy or Avoidance of such bishopric, where the Bishop was both Lord of a manor, and Parson of a Parsonage thereto annexed, did not come to the King (as they now do, whereby the Parsonage and manor are both consolidated into one, being now both holden to be Temporalties,) but the Parsonage came to the Archbishop of the Province, as a Spiritualty granted to his See by privilege, during the vacancy of the Sees of such Bishops as were in his Province, as may appear by the Records of the Lord Archbishop of Canterbury. Ex Registro archiepisc. Cant. & Ridl. View. cap. 6. Sect. 1.  
(2.) There is in operation of Law a wide difference between Avoidance and Next Avoidance; the former is in esse, the other is only in pass; the former is the want of an Incumbent upon a Benefice de praesenti: the other is the Grant of a supply of that want de futuro, and is the Grant of a Next Avoidance in a Parsonage or other Spiritual promotion, which is Grantable whiles there is an Incumbent actually in being, and is in the nature of a thing in Action, and therefore will not pass without Deed. But a present Avoidance, though it be not merely a thing in Action, yet it is not Grantable in that kind as the other: The present Avoidance is not valuable, and therefore shall not be Assets; it may be otherwise with a Next Avoidance in some Cases, for the Next Avoidance is but a Chattel 
b Pasch. 28 El. C. B. 〈◊〉 verse. 〈◊〉. Owen Rep. , the Grant whereof is not good without Deed 
c Mich. 31 & 32 Eliz. Cr●●●s Case. Rep. ibid. . For an Advowson or the Patron's Right of Presentation to a Church, is not a Spiritual, but a Temporal Inheritance, grantable by Deed, and (if appendent) as the manor itself to which it is appendent, as an accessary to its Principal.  
(3.) The Cognizance of avoidance of Benefices is Ecclesiastical by the Statute 25 Ed. 3. cap. 8. it being the want of an Incumbent on a Benefice (as aforesaid) and is opposed to Plenarty. This avoidance may be either by Death, Deprivation, Law or Act of Parliament, session or Plurality, Resignation, Creation, Incapacity, Union, nonpayment of Tenths, etc. So that a avoidance may happen to be such either in Law, or in deed; virtually, or actually. Resignation is Juris proprii spontanea Refutatio, or the voluntary yielding up of the Incumbent (into the hands of the Ordinary) his interest and right, which he hath in his Benefice. Touching the Form of Resignation, and Protestation, which must be when the party will Resign, vid. Regist. fo. 302. F. N. B. fo. 273. and this Resignation, which is one of the causes of Avoidance, is to be made to the Ordinary; for it is a Rule in the Canon Law, Apud eum debet fieri Renunciatio, apud quem pertinere dignoscitur Confirmatio. The Next Avoidance is only a Power legally granted to another by the right Patron to Present a Clerk to the Church, when it shall next become void 
d Broo. tit. Quare Imp. nu. 51. . And during such avoidance of a Parsonage, the Franktenement of the Glebe thereof is said so be in no man, but is said to be in Abeyance, that is, only in the remembrance, intendment, and consideration of the Law, that though for the present, during the time of such Vacancy, it be not actually in any person, yet it is by way of Abeyance) in hope and expectation belonging to such one as shall next enjoy the same. The word Avoidance hath Two significations in the Law; the one (and that here intended) is when a Benefice or any Ecclesiastical Living becomes Void of an Incumbent; the other may be that, which is understood by what we intent in plead in Chancery, when we say Confessed or Avoided, Traversed or Denied, etc. which hath no relation to the matter in hand. Likewise after the death of a Bishop, or Parson, the Freehold is in Abeyance of necessity 
e Colt and Glover's Case verse. B●●. of C●v. & Lich f. Hob. Rep. ; but the Law will not admit the framing of Abeyances needless and in vain, as in Vacations of Bishops, Parsons, or the like, as in case of Single Corporations, Bishops, Deans, and Parsons, which must die, and leave a Vacuum of the Freehold 
f 13 Jac. in Scaccar. Rot, 96. Sheffeld vers. Ratcliff Hob. Rep. . And this Next Avoidance is a Chattel locally, where the Advowson is, not where the Deed is; for it was Resolved in the Case of Holland verse. Shelley, That the Advowson had such a Locality in the Rape, where the Church was, that it accrued to the Plaintiff, wheresoever the Deed of Grant, or the Grantee himself was 
g Mich. 17 Jac. C. B. Rot. 2710. Holland vers. Shelley. Hob. Rep. .  
(4. C. brought a Quare Impedit against the Archbishop of Canterbury and others, and Declared upon a Grant of the Next Avoidance, and the Defendant demanded Oyer of the Deed; and the Plaintiff shown a Letter, which was written by his Father to the true Patron, by which he had Writ to his Father, that he had given to his Son, that was the Plaintiff, the next Avoidance; and upon this there was a demur: And the whole Court for the demur, For that such Letter was a Mockery, for the Grant was not good without Deed: and judgement was given accordingly 
i Mich. 31 & 32 Eliz. C. B. Cripps vers. the Arch●. of Cant. and others. Ower. Rep. . But by Deed it is Grantable, whereby Advowsons' are also Grantable, as other Inheritances are, and the delivery of the Deed of Grant of it shall be instead of Livery made of the Church itself, according to Sir Edward Coke, in the first Part of his Institutes 
k Co. 1. par. Instit. 46. & 335. .  
(5.) If a Tenant in tail and his Son join in a Grant of the Next Avoidance, it is void against the Son, and no Confirmation; for in the case of a Quare Impedit brought by Sir Marmaduke Wivel, the Point was this: Tenant in tail of an Advowson, and his Son and Heir joined in a Grant of the Next Avoidance. The Tenant in tail died; and it was Adjudged, that the Grant was utterly void against the Son and heir that joined in the Grant, because he had nothing in the Advowson, neither in possession or right, nor in Actual possibility at the time of the Grant 
* Sir Marmad. Wivel's Case. Hob. Rep. .  
(6.) The Acceptance of an Archdeaconry by one who hath a Benefice with Cure of Souls, may work an Avoidance at the Canon Law as to such Archdeaconry; yet an Archdeaconry, and the Promotion thereof, as being not any Cure of Souls, though an Ecclesiastical Preferment, seems not to be within the Statute of 21 H. 8. 13. And the Opinion of Wray Chief Justice, in Vnderhill's Case upon that Statute was, that he conceived the Law there to be qualified in that case, by reason of a Proviso in the said Statute, viz. Provided, that no Deanary, Archdeaconry, etc. be taken or comprehended under the name of a Benefice having Cure of Souls, in any Article above specified 
l Pasch. 31 Eliz. B. R. Vnderhil and Savage's Case. Leon. Rep. .  
(7.) In a Quare Impedit the Case was, The Plaintiff counted, that R. B. was seized of an Advowson, and granted the Next Avoidance to the Plaintiff and H. B. and that afterwards the Church became void, and after during the Avoidance H. B. released to the Plaintiff, and so that it belongs to him to Present. Upon this Count the Defendant did demur in Law; for it appeareth upon the Plaintiffs own showing, that H. B. aught to have joined with the Plaintiff in the Action, for the Release being made after the Church became void, is not of any effect, but utterly void. So is the Grant of the Presentment to the Church where the Church is void, for it is a thing in Action. Vid. the Lord Dyer, 28 H. 6. 26. 3 M. Dyer 129. 11 Eliz. Dyer 283. And afterwards judgement was given, that the Release was void 
m Mich. 30 & 31 El. C. B. Case Brckesby against Wickham and the Bishop of Lincoln. .  
(8.) Touching Avoidances there is a wide difference between the judgement of the Common Law, and that of the Canon; for if a mere layman, not having holy Orders, be Presented to a Benefice, the Church remains void according to the Canon Law, notwithstanding such Presentation; but at the Common Law, albeit this be a mere nullity there also, and void, yet it doth adjudge the Church to be Full according to the public Admission, Institution, and Induction, and not according to the capacity of the person, which is a thing secret, until such an one be deprived for it by Sentence in the Spiritual Court; and so the Church in construction of Law (understand it of the Common Law) is held void but from the time of Deprivation, of which notice ought to be given to the Patron 
n Hill. 36 Eliz. B. R. Poph. Rep. . So that according to the Canon Law there cannot be a Plenarty by the Presentation, Admission, Institution, and Induction of a mere layman to a Church; it is otherwise at the Common Law, which doth not so much consider the Capacity or Incapacity of the person Instituted and Inducted, as the Institution and Induction itself, until such time as there is a Sentence of Deprivation in the Ecclesiastical Court.  
(9) Session is when an Ecclesiastical person Beneficed is Created a Bishop; or when the Parson of a Parsonage taketh another Benefice without Dispensation, not being otherwise qualified for Plurality: In both which cases their first Benefices become void, and are said to be so void by session; insomuch that the King shall Present pro hac vice (whoever be Patron) to that Benefice, which he had who was Created Bishop; and in the other Case the Patron may Present 
o Terms of Law verb. session. . So that if a Parson or Dean in England take and accept of a bishopric in Ireland, it will cause that the First Church shall become void by session 
p Latch. Rep. fo. 234. . Resolved in Holland's Case, and in digbies Case, 4. Rep. That the Patron may Present, as soon as the Incumbent is Instituted in a Second Living, without Deprivation.  
(10.) By the Council of Lateran it was Ordained, That whoever having a Benefice with Cure of Souls, should accept of another cum Cura, should ipso jure be deprived of the former, the Patron whereof might Present as to a Benefice void 
q Conc. Lat. An. 1215. Innoc. 3. Pap. ; and this without any Sentence Declaratory of the First Church being void, if there were no licence or Dispensation to the contrary in the case 
r 24 E. 3. 30, & 24 E. 3. 26. b. acc. & F. N. B. 24. l. , to prevent a session of the former Benefice. For it hath been Resolved, That the Acceptance of a Second Benefice voids the former by session, without any Sentence Declaratory by the Statute of 21 H. 8. 13. but if having a Benefice cum Cura he Accept of an Archdeaconry, the same is not such a Benefice with Cure of Souls within the said Statute, as to make the former void, as was then also Resolved 
s Pasch. 31 Eliz. B. R. Vnderhil and Savage's Case. Leon. 1. Rep. 316. .  
(11.) In case of session in this kind, it is requisite that Notice thereof be given by the Ordinary to the Patron, otherwise the Lapse will not incur against him, in case he Present not within the Six months 
t Co. 4. par. 77. in Holland's Case. . Nor do the Courts at Common Law take notice of such session, until the same be certified unto them by the Ordinary. And wherever an Ecclesiastical Dignity and a Benefice with Cure are Incompatible, there the Acceptance of the one will be a session of the other; For which reason, if the Incumbent of a Parsonage or Vicarage with Cure, be made Dean of a Cathedral, his Parsonage or Vicarage becomes void by session 
u 5 Ed. 3. 3. Qu. Imp. 35. 24 E. 3. 38. Pars. Law, c. 16. , unless he be qualified for Plurality. Or if a Dean be made a Bishop, yea, though a Dean or Parson in England be made a Bishop in Ireland (as aforesaid) his Benefice becomes void, as was Resolved in Evans and Askwith's Case; for that the Constitution or Council, which makes it void, is general, and not limited to any place: And so it was also Resolved, 3 E. 3. Fitz. Trial, and so adjudged, 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring 
x Tri●. 3 Car. B. R. Evans and Kiffin vers. Askwith. Jones Rep. .  
(12.) The case may so happen, that albeit a man having a Benefice with Cure of Souls accept another, and be Instituted and Inducted into the same; yet his First Benefice shall not be void by session, though the Benefices be incompatible, though there be no Dispensation in the case, and although himself be not otherwise qualified for Pluralities: For it hath been Resolved, That if a man having one Benefice, accept another, and be Instituted and Inducted into the Second, and then read not his Articles; that yet the First Benefice voids not by session, because the Second is as not taken 
y Dy. on St. 13 Eliz. the last Case vouched, in Case S●ubely verse. Bu●ler. Hob. Rep. . Notwithstanding, it cannot be denied, but that where a man having a Benefice with Cure of Souls, above the value of Eight pounds per Ann. doth take another with Cure, and is thereto Admitted, Instituted, and Inducted, the First Benefice (without Dispensation) becomes void, as in the Case of the King against George Lord Archbishop of Canterbury: In which Case it was held, That the Church was absolutely void in facto & jure by taking of a Second Benefice, and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto & jure, quoad the Patron and all others 
z Trin. 4 Car. Rot. 441. the King verse. George Archb. of Cant. and Th●. Payest. Cro. Rep. . Sed Q. whether void as to an Usurper; for in some cases a Benefice may be void as to some persons, and not void as to others: As in the Case of Simony, whereby as well as by session a Church becomes void; yet in that case although it be void to all men quorum interest, to the King and his Incumbent, and all that claim under him, and to the Parishioners, to the Ordinary, and to the like, yet (according to Sir Hen. Hobart Chief Justice) it is not void to an Usurper; for a man without Right cannot Present unto it as to a Church void, nor the Ordinary so discharge himself, if he receive the Clerk of an Usurper; for he is none of them quorum interest. Pasch. 14 Jac. Rot. 1026. Case of Winchcomb against the Bishop of Winchester and Rich. Pulleston. Hob. Rep.  
(13.) If the Next Avoidance be granted to Three persons, and after the Church become void, and then Two of the Three Present the Third Grantee, being a Clerk; in this case the Presentation is good, and the Bishop may not refuse him, inasmuch as all Three were joint-tenants thereof by the Grant, and only Two of them join in the Presentment, for that the Third person cannot Present himself; but if only one of these Three Grantees Present the Third, the Bishop hath power to refuse him 
a D. 13, 14 Eliz. 304. 54. Rol. Abr. ver. Presentment, lit. M. . And if an Incumbent having the Advowson, do Devise the Next Avoidance, it seems it is good. Trin. 13 Jac. B. R. Harris verse. Austen. Rol. Rep.  
(14.) In Holland's Case it was Resolved, That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure, accept another with Cure, the First was void; but this was no Avoidance by the Common Law, but by Constitution of the Pope, of which the Patron might take Notice if he would, and Present, without Deprivation: But because the Avoidance accrued by the Ecclesiastical Law, no Lapse incurred without Notice, as upon a Deprivation or Resignation; so that the Church was void for the benefit of the Prtron, not for his disadvantage: But now if the First Benefice be of the value of Eight pounds per annum, the Patron at his peril ought to Present, for to an Avoidance by Parliament every one is party, but if not of Eight pounds, it is void by the Ecclesiastical Law, of which he needs not take Notice 
b Co. 4. Holland's Case. 39 Eliz. .  
(15.) In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance, and that J. S. died, and made his Executor, who Presented the plaintiff to the Church being void. Upon Non concessit it was found, That A. granted to J. S. durante vita ipsius J. S. primam & proximam Advocationem, and that he died before the Church became void. Whether this was an absolute Grant of the Next Avoidance, as is pretended, was the Question. And Resolved, it was not; but it is limited to him to Present to the Advowson if it becomes void during his life, and not that otherwise it should go to his Executors; and therefore it was Adjudged against the Defendant 
c Trin. 14 Car. B. R. Mann and the Bishop of Bristol and others. Cro. par. 3. .  
(16.) The Incumbent of a Church purchased the Advowson thereof in Fee, and devised that his Executor should Present after his decease, and devised the Inheritance to another in Fee. It was said, the devise of the Next Avoidance was void, because when his Will should take effect, the Church was instantly void. But the Court held the devise was good, for the Law is so, and it shall be good, according to the intent of the party expressed in his will 
d Pynchin and Dr. Harris. Cro. par. 2. . The Grant of the Next Avoidance during the Avoidance, is void in Law. Steephens and Clark's Case. More's Reports.  
(17.) In a Quare Impedit the Case was, The Corporation of B. being seized of an Advowson, granted the Next Avoidance to J. S. and afterward granted primam & proximam Advocationem to the Earl of B. who granted it to the Plaintiff: The Church became void, J. S. Presented his Clerk, who was Inducted, and then the Church became void again. It was Resolved, that the Second Grant was void, so as the Plaintiff had no Title, for when he had granted primam & proximam Advocationem to one, he had not Authority to grant it after to another; but if the First Grant had been lost so as it could not have been pleaded, there perhaps the Second Grand had been good 
e Williams and the B. of Lincoln's Case. Cro. par. 1. .  
(18.) In a Quare Impedit the Case was, H. being Incumbent of a Church, was Created a Bishop in Ireland, and the Queen Presented the Defendant. It was the Opinion of the Justices, That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance, and that the Queen should have it by her Prerogative: But if the Queen doth not take the benefit of the First Avoidance, but suffers a Stranger to Present, and the Presentee dies, she may not have Prerogative to Present to the Second Avoidance 
f Mich. 42 & 43 Eliz. B. R. Sir R. Basset and Gee's Case. Cro. par. 1. .  
(19) The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void: It was Adjudged in this Case, That B. may Present, and upon Disturbance have a Quare Impedit in his own Name 
g Benet and the Bishop of Norwich's Case. Cro. par. 1. . Or thus: The Next Avoidance was granted to Two, the one Released to the other, who brought a Quare Impedit in his own Name; and it was adjudged maintainable, because it was before the Church was void 
h jews and Benet's Case. More's Rep▪ .  
(20. A. seized of the manor of D. to which an Advowson was appendent, granted the Next Avoidance to B. and D. & eorum cuilibet conjunctim & divisim Haered. Executor. & Assignatis suis. The Church void, B. Presents D. to the Church: Adjudged, that the Presentment of him was good, though he were one of the Grantees 
i Sir Godfr. Foliamb's Case. More's Rep. .   

CHAP. XXVI.  
Of Pluralities.  

1. Pluralities condemned by the Council of Lateran; yet dispensed with by Kings and Popes.  
2. What in this matter the Pope anciently exercised by way of usurpation, the King may now do the jure; The difference between them in the manner how.  
3. What persons are qualified for granting or receiving Pluralities.  
4. Several Laws relating to Pluralities, Dispensations, and Qualifications.  
5. How the 8 l. annual value of a Benefice shall be understood, whether as in the King's Books, or according to the true value of the Benefice.  
6. The Lord Hobart's Opinion touching the Statute of 21 H. 8. relating to Pluralities.  
7. What the Pope's Power in England was before the making of the said Statute; And whether the taking of a bishopric in Ireland by a Dean in England, makes the Deanary void by session?  
8. The Chaplains of Persons of Honour, having divers Benefices, shall retain them for their Lives, though they be discharged of their Service.  
9 Whether the Ecclesiastical Court may take cognizance of Plenarty or avoidance, after Induction; And whether the cognizance of session or no session, belongs to the Temporal or Spiritual Count  
10. Difference between avoidance by Act of Parliament, and avoidance by the Ecclesiastical Law.  
11. A Prohibition granted upon Sequestration of a Benefice by the Bishop.  
12. The Fifth Paragraph aforesaid Adjudged and determined.  
13. How the avoidance in case of Three Benefices in one person.  
14. Benefice not void, if the King licence the Incumbent to be an Incumbent and a Bishop.  
15. How the taking of a Second Benefice is a avoidance of the First.  
16. Whether so, in case of a Chaplain of the King.  
17. Whether so, in case of a Si modo or Modo sit, by way of a Limitation in the Dispensation.  
18. Whether the word Dispensamus be necessary in the Letters of Dispensation for a Plurality?  
19 The King's Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8.  
20. Whether a Third Chaplain retained by a Countess Widow, is qualified to purchase a Dispensation for Plurality.  
21. In reference to Plurality, whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice.  
22. Whether Admission and justitution makes the First Benefice void without Induction.  
23. Whether before the Statute of 25 H. 8. the Pope might here grant Dispensations for Pluralities.  
24. Whether the Retainer of a Chaplain may be good and sufficient without a Patent.  
25. In what case a Dispensation for Plurality may come too late, though before Induction.  
26. Three Resolutions of Law in reference to Avoidance by reason of Plurality.   
(1.) PLurality, according to the Common acceptation of the word, is where one and the same person is possessed of Two or more Ecclesiastical Benefices with Cure of Souls, simul & semel. It was long since condemned by the general Council of Lateran 
a An. 1215. , whereby it was Ordained, That whatever Ecclesiastical person, having one Benefice with Cure of Souls, doth take another such, shall ipso jure be deprived of the former; and if he contest for the retaining thereof, shall lose both 
b Concil. Later. To. 4. 221. cap. 29. 24 E. 3. 33. 39 E. 3. 44. F. N. B. 34. L. Co. 4. par. 75. . Notwithstanding which Canon, it was heretofore usual with the Pope to usurp a power of Dispensation in this matter, the which the jure was anciently practised by Kings, as supreme, and as the original Donors of Benefices and Ecclesiastical Dignities; witness Edmond that Monk of Bury, who by virtue of such Dispensations held several Ecclesiastical Benefices at one and the same time. The said Canon (as to the substance thereof, relating to Pluralities) is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards, and the time of Avoidance thereof to be immediately after possession, by Induction into the other with Cure of Souls; with power of Presentation de novo granted to the Patron of the former Benefice, and all benefit of the same to the Presentee, as if the Incumbent had died or resigned. Q. Whether the said yearly value of Eight pounds or above, aught to be computed according to the valuation in the King's Books, as returned into the Exchequer, and now used in the First-Fruits Office, or according to the just and true value of the Benefice 
c Dyer 237. p. 29. Cro. Eliz. 853. . Q. likewise, Whether a Parson of a Church Impropriate, with a Vicar perpetually endowed, accepting of a Presentation unto the Vicarage without Dispensation, be a Pluralist within the Canon and Statute aforesaid? The Negative is supposed to give the best Solution to the Question 
d Vid. Parss Law, cap. 21.   
(2.) The same power of granting Faculties, Pluralities, Commendams, etc. which anciently the Pope exercised in this Realm by Usurpation, is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferred unto and vested in the Crown de jure; also from and under the King, in the Archbishop of Canterbury and his Commissaries by Authority derived from the Crown: The Pope anciently granted to Bishops after Consecration, Dispensations Recipere & obtinere Beneficium cum cura animarum, to hold the same in Commendam, the which he did in this Realm by Usurpation, and which the Crown may now do the jure; for the same power (as aforesaid) which the Pope had, is by the Acts of Parliament in 25 H. 8. & 1 Eliz. in the King de jure. But there is a very material difference between the Dispensations anciently here granted by the Pope, and those at this day by the King and Archbishop, Confirmed by the King's Letters Patents, which are not good otherwise than to such as are complete Incumbents at the time of granting thereof, 
Ibid▪  whereas it was sometimes otherwise with the other; whence it is observable, that in digby's Case the Dispensation came too soon: A. is Instituted and Inducted into a Benefice with Cure, value Eight pounds per ann. Afterwards the King presenting him to another with Cure, he is Admitted and Instituted: Afterwards the Archbishop of Canterbury grants him Letters of Dispensation to hold Two Benefices; the King confirms the same: Afterwards he is Inducted into the Second Benefice. In this case the Dispensation comes too late, because by the Institution into the Second Benefice the First Benefice was void by the Stat. of 21 H. 8. 
e Co. 4. par. 79. digby's Case. .  
(3.) The Acceptance of a Second Benefice, with a Dispensation, comes not under the notion of prohibited Pluralities, in case the First were under the annual value of Eight pounds, or sine cura. And what persons are qualified either for the Granting or receiving Pluralities, appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King, Queen, and Prince, and other the King's Children; for which reason they may retain as many Chaplains as they please, and each of them qualificable by a Dispensation for Plurality: But if either of the King's Chaplains be Sworn of his majesty's most Honourable Privy Council, such may purchase a Dispensation to hold Three Benefices with Cure of Souls. The Persons specially qualified by Dispensations for Pluralities, are either (1) Such as are retained as Chaplains to Persons of Honour: Or (2) Such as are qualified thereto in respect of their Birth: Or (3) Such as are dignified with some certain Degrees in either of the Universities of this Kingdom. In reference to the first of these, every Archbishop and Duke may have Six Chaplains; marquis and Earl, Five; every Viscount and other Bishop, Four; Lord Chancellor, Three; Knight of the Garter, Three; Baron, Three; Duchess, Marchioness, Countess, and Baroness (being Widows,) Two; Treasurer and Controller of the King's House, Two; the King's Secretary and Dean of his chapel, the King's almoner and Master of the Rolls, Two; the Chief Justice of the King's Bench, and Warden of the Cinque Ports, One. In reference to the Second qualification, viz. By Birth, the Brothers and Sons of all Temporal Lords, and of Knights, born in Wedlock, may purchase Dispensations to hold Two Parsonages, etc. with Cure of Souls. In reference to the Third, all Doctors and bachelors of Divinity, Doctors and bachelors of Law, Presented to any of these Degrees, not by grace only, but by any of the Universities of this Realm, may purchase and hold as aforesaid. Vid. Statute 21 H. 8. cap. 


In the parson's Counsellor, par. 1. chap. 4.  
Chaplains.  
Archbishop 8  
Duke 6  
Marquess 5  
Earl 5  
Bishop 6  
Viscount 4  
Lord Chancellor 3  
Knight. of the Garter 3  
Baron 3  
Duchess,  
Marchioness,  
Countess,  
Baroness, 

Widows, each 

2      
Treasurer,  
Controller, 

of the King's House, each 

2      
Kings Secretary 2  
Stat. 21 H. 8. cap. 13.  
King's almoner,  
Clerk of the Closer,  
Master of the Rolls, 

each 

2      
Chief Justice B. R.— 1  
Warden of the Cinque Ports— 1    13.  
(4.) Although by the Letter of which Act the First Living is not void until Induction into the Second, the words being [If the party be Instituted and Inducted in possession of the Second Living, that then the first shall be void:] yet to avoid the great inconveniency (as Sir Simon Degge observes in his Parson's Counsellor) that otherwise would ensue, 
Par. 1. chap. 4. Co. 4. 79. b. Hob. 166.  it has been held, That the First Living is void upon the bare Institution into the Second; and so it should seem the Law was before the making of this Act, where the party had no Dispensation. The sufficiency of qualification for Plurality relates as well to the Dispensation as to the Person; for if the Dispensation, after its being had from the Master of the Faculties, be not confirmed under the Great Seal of England, other qualifications will not suffice. Nor are the supernumerary Chaplains of any person of Honour, retained by him above the Number allowed by the Statute, qualified for Plurality. Co. 4. 90. B. versus the Bishop of Gloucester, and Saveacre. Anders. More, 561. The death, attainder, degradation, or displacing of a Chaplains Lord, or his discharging his Chaplain, unqualifies him for a Plurality of incompatible live 
i Co. 4. 17. b. ; otherwise of the Chaplain of a Duchess, Marchioness, Countess, or Baroness, in case of After-marriage 
k Id. 4. 118. . A double Capacity in one and the same person of Honour to qualify his Chaplains, doth but capacitate him to qualify his Number of Chaplains only according to his best qualification 
l Ibid. . A Person of Honour having retained his full Number of Chaplains, and discharging them after their preferment, may not during their Lives qualify others 
m Co. 4. 90. a. .  
(5.) The Question was formerly put, Whether the 8 l. yearly value, intentioned in the Statute of 21 H. 8. c. 13. shall be understood according to the Taxed value in the King's Books, or according to the very true value of the Benefice? Mr. Hughes in his Parson's Law reports a Case in King James' time, wherein this Question was debated pro & con, the Judges equally divided, the Case for difficulty and variance of Opinion adjourned, and afterwards (as he there speaks de auditu) by order of the King compounded 
n Pasch. 8. Jac. C. B. the King and the Bish. of Bristol and Bauleighs Case. vid. Hughe's parson. Law, cap. 18. . In that Case Two precedents it seems were showed in proof of that Opinion, which inclined to have it taken according to the very value of the Benefice 
o 40 El. C. B. Pus● and Sm●h's Case. & Trin. 43 El. B. R. rot. 564. Bond and Triket's Case. Cro. par. 3. p. 858. ; notwithstanding, when the same point came again several years after into question, the Court then seemed to incline against the Opinion, which was for the very value of the Benefice: But (says he) the Case was not then resolved or adjudged, but remaineth a Question undetermined 
p Vid. Pa●s. Law ubi supr. Under P●pe Innocent. 3. . Quaere the Law. Foster and Walmesley Justices held the value should be taken according to the Taxed value, as in the Book of First-Fruits: but Warburton and Coke Chief Justice, Contra. It hath been Resolved in Holland's Case, and likewise in digbies Case, Rep. 4. and often before since the Council of Lateran, An. Do. 1215. That if a man have a Benefice with Cure, whatever the value be, and is Admitted and Instituted into another Benefice with Cure, of what value soever, having no Qualification or Dispensation, the First Benefice is ipso facto so void, that the Patron may Present another to it, if he will. But if the Patron will not Present, then if under the value, no Lapse shall incur until Deprivation of the first Benefice, and Notice: But if of the value of eight pounds, or above, the Patron at his peril must Present within Six months by the Statute of 21 H. 8. 
q Shute vers. Higden. Vaugh. Rep. vid. Anders. 1. pa. f. 200. b. p. 236. vide Moor's Rep. C●s. Larg. ad eund. effect. . And in that Case of Digby it was adjudged, That when a man hath a Benefice with Cure above eight pounds, and afterwards taketh another with Cure, and is Presented and Instituted, and before Induction procures the Letters of Dispensation, that this Dispensation comes too late: For by the Institution Ecclesia plena & consulta existit against all persons except the King; for every Rectory consisteth upon Spiritualty and Temporalty. And as to the Spiritualty, viz. Cura animarum, he is complete Parson by the Institution; for when the Bishop upon Examination had, admitteth him able, than he doth Institute him, and saith, Instituo te ad tale Beneficium, & habere curam animarum of such a Parish, & accipe curam tuam, etc. Vide 33 H. 6. 13. But touching the Temporalties, as the Glebe-Lands, etc. he hath no Freehold in them until Induction: For by the General Council of Lateran, Anno Dom. 1215. it appeareth, That by the acceptance of two Benefices the first is void, Aperto jure; for upon this Council are the Books of the Common Law in this Ca●e founded. And it was in this Case Resolved, That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Institution is an Acceptance by the Common Law 
r Co. 4. digbies Case. 41 Eliz. f. 78. .  
A man was Presented to a Church with a Vicarage endowed; the Parson accepted of a Presentation to the Vicarage without Dispensation: Whether this were a Plurality by the Canon Law, and by the Statute of 21 H. 8. was the Question. Hobart Chief Justice was of Opinion, That notwithstanding they were several Advowsons', and several Quare Impedits might be brought of them, and several Actions maintained for their several Possessions, yet the Presentment of one man to the Parsonage and Vicarage was no Plurality, because the Parsonage and Vicarage are but one Cure: And there is a Proviso in the Statute, That no Parsonage that hath a Vicar endowed, shall be taken by the Name of a Benefice with Cure within the Statute, as to make it a Plurality 
s Mich. 22 Jac. B. R. Woodley and the Bishop of Exeter and Manwaring's Case. Cro. par. 2. .  
(6.) The Lord Hobart in Colt and Glover's Case against the Bishop of Coventry and Lichfield is clear of Opinion, That bishoprics are not within the Law under the word [Benefices] in the Statute of 21 H. 8. cap. 13. So that if a Parson take a bishopric, it avoids not the Benefice by force of this Law, but by the ancient Common Law, as it is holden 11 H. 4 60. But withal he holds it as clear, That if a Bishop have or take two Benefices, Parsonages, or Vicarages, with Cure, either by Retainer, or otherwise de novo▪ he is directly as to these Benefices within the Law; for he is to all purposes for those not a Bishop (whether it be in his own diocese or not) but a Parson or Vicar; and by that Name must sue and be sued, and Prescribe and Claim. For if any person, having one Benefice with Cure, etc. take another, etc. whosoever will hold two Benefices, must have such a Qualification, and such a Dispensation, as the Law 21 H. 8. requires: Whereupon the Lord Hobart in the foresaid Case is clear of Opinion, That if a man be qualified Chaplain to any Subject, and then be made a Bishop, his Qualification is void, so as he cannot take two Benefices de novo after by force of that Qualification: But if he had lawfully two Benefices before his bishopric, he may by Dispensation of Retainer (besides his former Dispensation, to take two Benefices) hold them with his bishopric. And if a man, being the King's Chaplain, take a bishopric, he holds that he ceaseth to be the King's Chaplain; and Bishops are not in that respect Chaplains to the King, within the meaning of the Statute: So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain, will not serve them 
q Mich. 10 Jac. Rot. 1642 Colt and Glover vers. Bishop of Coventry and Lichfield. Hob. Rep. . In this Case of Colt, etc. against the Bishop of etc. he is of Opinion, That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure, to be united to it after, though they make but one Benefice; for this Cautel of Union is provided for by Name: But of Unions before, he is of another Opinion▪ Case Colt, Hob. Rep.  
(7.) In ancient times the Pope used to grant Dispensations of the Canons in this Realm, and so might the King have done. The first Statute that restrained the power of the Pope, was that of 21 H. 8. of Pluralities: That the Church shall be void, notwithstanding any Grant of the Pope: Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices; and so might the King. The 21 H. 8. was the first Statute, or Law, which gave allowance for Pluralities; afterwards by the 28 H. 8. the power of the Pope was given to the King: But as it was said and agreed in the Case of Evans and Ascough, that was not by way of Introduction, but Cumulutive and by way of Exposition. And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King, and Dispensation granted by the King, or by the Archbishop, is good 
r Hill. 22. Jac. B. R. rot. 1164. Evans vers. Ascough. Latch. Rep. . Also in the said Case it was agreed by all the Justices, That if a Parson or Dean in England doth take a bishopric in Ireland, it makes the first Church void by session; because Ireland is a Subordinate▪ Realm to England, and governed by the same Law: For it was there agreed by all, as well by the Justices as those of the bar, That if a Parson or Dean in England take a bishopric in Ireland, the first Church is void by session. Justice Whitlock gave this Reason for it, Because there is but one Canon Law per totam Ecclesiam; and therefore wherever the Authority of the Pope extended itself, be it in one or divers Realms▪ the taking of a bishopric made the Deanary or Parsonage void. Nemo potest habere duas Militias, nec duas Dignitates, & est impossibile quod unus homo potest esse in duobus locis uno tempore. And 5 R. 2. F. trial 54. the whole Spiritual Court is but one Court; which Book is very remarkable to that purpose, That the Canon Law is but one Law: Which Reason was also given by Justice Doderidge in the same Case, and upon the same point, who said, That the Law of the Church of England is not the Pope's Law, but that all of it is extracted out of Ancient Canons; as well General as National. Another Reason which he then gave was, Because Ireland is a Subordinate Realm, and governed by the same Law: Because although before the time of H. 2. they were several Kingdoms or Realms, yet the Laws of England were there Proclaimed by King John, and is subject to the Laws of England. And if the King, having a Title to Present to a Church in Ireland, confirm it to the Incumbent under the Great Seal of England, it is good. 45 Ed. 3. 70. 
s Ibid. f. 234. .  
(8.) In Savacre's Case it was adjudged in the Common Pleas, That if a Baron, or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices, and after they discharge their Chaplains from their Service, they shall retain their Benefices during their Lives, and if the Baron takes others to be his Chaplains, they cannot take many Benefices during the Lives of the others, which are Beneficed and Discharged of their Services; for if the Law were otherwise, the Lords might make any capable of holding Benefices by admitting them to be their Chaplains 
t Sava●re's Case. Owen's Rep. .  
(9 T. prayed a Prohibition to the Arches; the Case was this, One had a Recovery in a Quare Impedit, and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted, etc. and after the Recovery died, and T. supposing his heir to be in the Ward of the King, and that the said A. took another Benefice without sufficient Qualification, by which the Church was void by session, and he attained a Presentation of the King, and he was Admitted, etc. by the Lord-keeper, being within the diocese of Lincoln, and A. sued him in the Ecclesiastical Court, and T. prayed a Prohibition, and it was granted per totam Curiam; for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party: And whether it is a session or not, doth properly belong to the Common Law: And Jones cited a judgement in William's Case according. Note, that by the Constitution of Otho and Othobon, That Institution and Induction is voidable in the Ecclesiastical Court, if no Prohibition be prayed 
n Thornton's Case. Whinch. Rep. .  
(10.) In the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk in a Quare Impedit, was vouched Holland's Case in Cok. 41, 51. to show that there is a difference between avoidance by Act of Parliament, and avoidance by the Ecclesiastical Law: For before the Statute by the taking of the second Benefice, the first Church was void; but not so that the Lapse incurred upon it. And as for Pluralities, the words of the Statute are, That it shall be void, as if he were naturally dead; and therefore if a man takes a second Benefice and dies, Issue ought to be taken, whether the first vacavit per mortem; And it is found, That Not: For it was void before the death of the Incumbent 
w The King against the Archbishop of Canterbury and Prust. Hetley's Rep. .  
(11. P. was Collated, Instituted, and Inducted by the Bishop of Exeter, Patron Dr. Hall; the Bishop Collates another, pretending that the first Incumbent had taken a second Benefice, whereupon the first was void; and revera the first Incumbent had a Dispensation: And notwithstanding that, the Bishop Sequesters the Benefice; and upon Discovery thereof to the Court, a Prohibition was granted 
x Pinson's Case in He●ley's Rep. .  
(12.) In Bene's Case against Trickett, the point was, Whether the value of the Church for Plurality by 21 H. 8. shall be eight pounds according to the Book of Rates and Valuation in the First-fruits Office, or according to the very value of the Church per Annum. Atkinson, That according to the value of the King's Books: For the Parliament never thought that any man could live upon so little as eight pounds per Annum, which is not six pence a day. Note, 38 E. 3, 4. and Dyer 237. but by the Court, That it shall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner, to whom agreed Yeluerton, That the eight pound shall be accounted according to the very value of the Church per Annum 
y Trin. 43. Eliz. B. R. Bene vers. Trickett. Noy's Rep. .  
(13.) In a Quare Impedit it was doubted, If A. having two Benefices with the Cure by Dispensation, and then takes a third Benefice with Cure, If now both the first Benefices, or the first of them only be void. Hieron said, That it was adjudged that both of them should be void 
z The King against the Bishop of Chichester. Noy 's Rep. .  
(14.) If the King grant a Licence to an Incumbent to be an Incumbent and a Bishop▪ and he afterwards be made a Bishop, the n●●ice is not void 
a 11 H. 4. 60. H. 39 El. B. R. inter A●miger & Holland per Cur. resolved. . Henry de Blois, Brother to King Stephen, was Bishop of Winchester, and Abbot of Glassenbury 
b Liber Successionis 19 .  
(15.) It seems that at the Common Law, if an Incumbent had taken a second Benefice with Cure, neither the first nor the second had been void 
c Co. 4. Holland. 75. b. . But by the General Council of Lateran, held in the year 1215. it was ordained, That if a man took divers Benefices with Cure of Souls, the first should be void, unless he had a Dispensation from the Pope 
d Co. 4. Digby 79. . This Constitution of the said General Council is ratified and confirmed in Pecham's Constitutions, at a Provincial Synod held in this Realm 
e Lindw● 〈◊〉 81. . Also if an Incumbent take a Second Benefice with Cure, whereby the first is void by the Canon as to the Patron, so as he may Present before any Deprivation, yet until Deprivation it is not void as to a Stranger; for if he sues a Parishioner for Tithes, the taking of a second Benefice is not any bar to him. Trin. 13. Car. B. R. per Justice Bark. which Justice Yeluerton in his Argument in Prust's Case said, That it had been so Adjudged 
f Rol. Abr. verb. Presentment. lit. L. pag. 353. . And if an Incumbent of one or more Benefices with Cure be consecrated Bishop, all his Benefices are ipso facto vold; upon which avoidance the King, and not the Patron, is to Present to the Benefices so void by session; and any Dispensation after Consecration comes too late to prevent the avoidance; for the Pope could formerly, and the Archbishop now, can sufficiently Dispense for a Plurality by the Statute of 25 H. 8. 
g ●des ver●. the Bishop of Oxf●●d, in Vaugh. Rep. . The chief Text of the Canon Law against Pluralities seems to be that of the Decretal de Praebend. & Dign. c. de multa, where it is said, That in Concilio Lateranensi prohibitum, ut nullus diversas Dignitates Ecclesiasticas, vel plures Ecclesias Parochiales, reciperet, contra Sanctorum Canonum Instituta, etc. Et praesenti decreto statuimus, ut quicunque receperit aliquod Beneficium curam habens animarum annexam, si prius tale beneficium habehat, sit ipso jure privatus, & si forte illud retinere contenderit, etiam alio spolietur, etc. Consonant to which is that in Decret. Caus. 21. q. 1. In duabus Ecclesiis Clericus conscribi nullo modo potest.  
In the Case of a Commendam adjudged in Ireland, the Original and Inconvenience of Dispensations and Non obstantes was well weighed and considered; 
Pasch. 9 Jac. 〈◊〉 en Ireland en le Case de Commenda enter le Rey & cyprian Horsfall & Robert Wale. Davis Rep.  where it was said, That the Non obstante in Faculties and Dispensations was invented and first used in the Court of Rome; for which Marsil. Pat. pronounced a Vae against the said Court, for introducing that clause of Non obstante, That it was an ill precedent, and mischievous to all the Commonwealths of Christendom. For the Temporal Princes perceiving that the Pope dispensed with Canons, in imitation thereof have used their Prerogative to dispense with their penal Laws and Statutes, when as before they caused their Laws to be religiously observed, like the Laws of the Medes and Persians, which could not be dispensed with. See the Case of Penal Statutes Co. 7. fo. 36. h. For this Reason it was that a Canonist said, Dispensatio est vulnus quod vulnerat jus common. And another saith, That all abuses of this kind would be reform, Si duo tantum verba, viz. [Non obstanie] none impediment. And Matth, Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions, which were beneficial for the Church of England, Sed omnia baec & alia (says he) per hoc repagulum [Non obstante] infirmantur.  
(16.) In a Quare Impedit the Case was, Dr. Playford being Chaplain of the King, 
Hill. 1610. 8 Jac. C. B. Wallop against the Bishop of Exeter and Murrey, Clerk Brown●● pa. 2.  accepted a Benefice of the Presentation of a common person; and he after accepted another Presentation of the King, without any Dispensation, both being above the value of eight pounds per Annum. The Question was, Whether the first Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the second Benefice without Dispensation, than this remains a long time void, so that the King was entitled to present by Lapse, and presented the Plaintiff. The Statute of 21 H. 8. provides, That he who is Chaplain to an Earl, Bishop, etc. may purchase Licence or Dispensation to receive, have, and keep two Benefices with Cure, provided that it shall be lawful for the King's Chaplains, to whom it shall please the King to give any Benefices or Spiritual Promotions, to what number soever it be, to accept and receive the same without incurring the danger, penalty, and forfeiture in this Statute comprised; upon which the Question was, Whether by this last Proviso, a Chaplain of the King having a Benefice with Cure above the value of eight pounds per Annum, of the Presentation of a Common person, might accept another Benefice with Cure over the value of eight pounds also of the Presentation of the King without dispensations The words of the Statute, by which the first Church is made void, are, That if any Parson having one Benefice with Cure of Souls▪ being of the yearly value of eight pounds or above, accept or take any other with Cure of Souls, and be Instituted and Inducted into possession of the same, that then, and immediately after such possession had thereof, the first Benefice ●hall be adjudged in the Law to be void; Vide Holland's Case, 4 Co. 75. ●. This Case was not argued, but the point only opened by Dodesidge, sergeant of the King, for the Plaintiff.  
(17. A. was Parson of M. which was a Benefice with Cure, of the value of eight pounds, 
T●●●. 13. 〈◊〉. B. R. Dodj●●● and Lyn●'s Case. ●ro. par. 3  and was Chaplain to the Earl of S. and obtained a Dispensation to accept of another Benefice, modo sit within Ten miles of the former, which was confirmed under the Great Seal▪ He accepted of another Benefice Seventeen miles distant from the first, and was Instituted and Inducted, both Benefices being within the diocese of Lincoln. The Archbishop in his Visitation Inhibited the Bishop of Lincoln not to execute any Jurisdiction during his Visitation: It was found that the Patron had neglected to present to the first Benefice within the Six months; and that the Bishop of Lincoln within the second Six months Collated one to the first Benefice, who was Admitted and Inducted. The points were, Whether (1) Si modo was a Condition in this Licence, and made the first Benefice void when he took the Second? (2) Whether the Bishop Collating, during the time of the Archbishop's Visitation, and after his Inhibition, was good? Resolved, That in the principal Case, Si modo should not be taken for a Condition, and that the Benefice should not be void quoad the Patron, as the taking of a second Benefice is by the Statute of 21 H. 8. and then the second point of the Collation by the Bishop, in the time of the Visitation, and also the Inhibition, will not be material.  
(18.) Quare Impedit, 
Mich. 41 & 42 Eliz. B. R. The Queen and Page's Case. Cro. p. 1.  pretending the Church void for Plurality; The Defendant said he was Chaplain to the Lord M. and pleaded a Dispensation from the Archbishop of Canterbury, and Confirmation thereof. In the Letters of Dispensation the words were (mentioning the two Benefice to be of small value) unimus anneximus & incorporamus, the second Benefice to the first without the word of Dispensamus thereof: The Court held it a sufficient Dispensation; for it is not of necessity to have the word Dispensamus; and if the Circumstances prove it, it is sufficient.  
(19) In the Case between Whetstone and Higford, it was held by the Justices, That if the Queen retains a Chaplain by word only, yet he is such a person as may have a Plurality within the Statute of 21 H. 8. of Pluralities, and is a person able to make a Lease. 
Cro. ibid.  And in a Quare Impedit it was Resolved, That if there be two Parsons of one Church, and each of them hath the entire Cure of the Parish, and both the Benefices be of the value of eight pounds, 
Cro. ibid.  and the one dieth, and the other be presented, it is a Plurality within the Statute of 21 H. 8.  
(20.) The Countess of K. being a Widow, retained two Chaplains, and after retained a third; the third purchased a Dispensation to have two Benefices with Cure, 
The Queen and Darcte's Case Cro. p. 1. Or ●Di●rte's Case. vide mower's Rep.  and he was advanced accordingly, whereof the first was above the value of eight pounds: It was adjudged in this Case, and afterwards affirmed in a Writ of Error, That he was not lawfully qualified within the Statute of 21 H. 8. by which the first Benefice, by acceptance of a second, was void; and that the Title did accrue to the Queen to present; for it was Resolved, That the Statute gives power to a Countess to retain two Chaplains and no more, and when the Statute is executed she cannot retain a third Chaplain; and the Retainer of the third cannot divest the capacity of Dispensation which was vested by her Retainer in the two first Chaplains.  
(21.) A Parson having a Benefice of the value of eight pounds, 
Mi●h. 43 & 4● Eliz. B. R. Bond and Tickett's Case. Cro. par. 1.  took a second Benefice without Dispensation, being above the value of eight pounds: The Court took no consideration of the Statute of 26 H. 8. and the value there mentioned, but regarded only the true value of the Benefice.  
(22.) For Title to an Avoidance the Statute of 21 H. 8. was pleaded, 
Agar and the Bishop of 〈◊〉 's Case. Moor's Rep.  touching the taking of a second Benefice with Cure; Issue was upon the Induction; by which it seemed to be admitted, That Admission and Institution did not make the first Benefice void without Induction.  
(23.) Quare Impedit brought, the Defendant pleaded the Statute of 21 H. 8. cap. 13. of Pluralities, 
21 H. 8. c. 13.  that the last Incumbent had a Benefice with Cure of the value of eight pounds, and took another Benefice and was Inducted 1 Eliz. upon which the Queen did present the Defendant by Lapse: The Plaintiff shown the Proviso in the Statute of 25 H. 8. cap. 21. 
25 H. 8. c. 21.  That Chaplains qualified might purchase Dispensations and take two Benefices, and that 1 Eliz. before the Parliament he purchased a Dispensation from the Pope, and after he took the second Benefice, and died. The Question was, Whether before the Statute of 25 H. 8. the Pope might grant Dispensations? 
Dolman and the Bishop of Salisbury's Case. Moor's Rep.  It was Resolved, he could not; for that the King's of England had been Sovereigns within their Realms of the Spiritualties; and the Justices held, That the Dispensation in question was made 1 Eliz: and so out of the Statute of 25 H. 8. cap. 21. and that this Dispensation to retain a second Benefice was against the Statute of 21 H. 8. cap. 13.  
(24.) The Countess of K. had two Chaplains by Patent, a third had no Patent of Chaplainship, 
The Queen, Bishop of Lincoln and Skiffing's Case Moor's Rep.  but he was first Retained, and took two Benefices by Dispensation: It was Adjudged, he was lawful Chaplain; for the Patent is not of necessity, but only in case where he hath cause to show it, and here he hath no cause to show it, because her Retainer was good without a Patent.  
(25.) The Case between Robins, Gerrard, and Prince was in effect this, viz. A man is Admitted, Instituted, and Inducted into a Benefice with Cure of the value of eight pounds, and afterwards the King presents him to the Church of D. which is a Benefice with Cure, and he is Admitted and Instituted. The Archbishop grants him Letters of Dispensation for Plurality, which Letter the King Confirms, and afterwards he is Inducted to the Church of D. In this Case it was Adjudged, That the Dispensation came too late, because it came after the Institution; for by the Institution the Church is full against all persons except the King; and as to the Spititualties, he is full Parson by the Institution. (2.) Resolved, That admit the Church was not full by the Institution until Induction, yet the Dispensation came too late; for that the words of the Statute of 21 H. 8 of Pluralities are [may purchase Licence to receive and keep two Benefices with Cure of Souls,] 
Moor ibid.  and the words of Dispensation in this case, were recipere & retinere▪ and because by the Institution the Church was full, he could not purchase Licence to receive that which he had before, and he cannot retain that which he cannot receive.  
(26.) In the case of a Prohibition it was Resolved, That by the Common Law before the Statute of 21 H. 8. the first Benefice was void without a Sentence Declarative, 
A●miger and Holland 's Cas. Moor 's Rep.  so as the Patron might present without notice. (2.) That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it. (3.) That the Queen might grant Dispensations as the Pope might, in case where the Archbishop had not Authority by the Statute of 25 H. 8. to grant Dispensations, because all the Authority of the Pope was given to the Crown by the Statute. But yet the Statute, as to those Dispensations which the Archbishop is to grant, hath Negative words, and the Bishop shall make the Instrument under his Seal.   

CHAP. XXVII.  
Of Deprivation.  

1. What Deprivation is, and in what Court to be pronounced.  
2. The Causes in Law of Deprivation.  
3. In what Cases Deprivation ipso facto, without any Declaratory Sentence thereof, may be.  
4. A Cardinal 's Case of Deprivation by reason of Miscreancy.  
5. The Papal Deprivation by reason of Marriage.  
6. What the Law is in point of Notice to the Patron, in case of Deprivation by reason of mere Laity or Nonage.  
7. The difference of operation in Law between Malum prohibitum and Malum in se; and in what Cases of Deprivation Notice ought to be given to the Patron.  
8. Deprivation by reason of Degradation; which Degradation at the Canon Law may be two ways.  
9 Cawdry's Case of Deprivation for Scandalous words against the Book of Common Prayer, sentenced by the High Commissioners.  
10. Deprivation for nonconformity to the Ecclesiastical Canons, by the High Commissioners, agreed to be good.  
11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz.  
12. Deprivation by the High Commissioners for Drunkenness.  
13. The Church is not void by the Incumbents being Deprivable, without Deprivation.  
14. For an Incumbent to declare his Assent to the Articles of Religion, so far as they agree with the Word of God, is not that unfeigned Assent which the Statute requires.  
15. A Church becomes void presently upon not Reading the Articles, and there needs not any Deprivation in that Case.  
16. A Case wherein a Sentence declaratory for Restitution makes a Nullity in the Deprivation.  
17. An Appeal from a Sentence of Deprivation, prevents the Church's being void pro tempore.  
18. Upon Deprivation for mere Laity or Incapacity the Lay-Patron must have Notice ere the Lapse incurs against him.  
19 An Incumbent Excommunicated, and so obstinately persisting 40 days, is Deprivable.   
(1.) DEprivation is a discharge of the Incumbent of his Dignity or ministry, upon sufficient cause against him conceived and proved▪ for by this he loseth the Name of his First Dignity, and that either by a particular Sentence in the Ecclesiastical Court, or by a general Sentence by some positive or Statute-Law of this Realm: So that Deprivation is an Ecclesiastical Sentence Declaratory, pronounced upon due proof in the Spiritual Court, whereby an Incumbent being legally discharged from Officiating in his Benefice with Cure, the Church pro tempore becomes void: So that it is in effect the Judicial incapacitating an Ecclesiastical person of holding or enjoying his Parsonage, Vicarage, or other Spiritual promotion or dignity, by an Act of the Ecclesiastical Law only in the Spiritual Court, grounded upon sufficient proof there of some Act or Defect of the Ecclesiastical person Deprived. This is one of the means whereby there comes an Avoidance of the Church, if such Sentence be not upon an Appeal repealed. The causes of this Deprivation by the Canon Law are many, whereof some only are practicable with us in the Ecclesiastical Laws of this Realm, and they only such as are consonant to the Statutes and Common Law of this Kingdom.  
(2.) All the Causes of Deprivation may be reduced to these Three Heads: 
Vid. Dederidg. de Advows. Co par. 5. cawdry's Case.  (1) Want of Capacity. (2) Contempt. (3) Crime. But more particularly, It is evident, that the more usual and more practicable Causes of this Deprivation are such as these, viz. a mere Laity or want of Holy Orders according to the Church of England, Illiterature or inability for discharge of that Sacred Function, 
5. Ed. 4. 3. 5 H. 7. 19 38 E. 3. 2. b. Dyer 8. & 9 p. 254.  Irreligion, gross Scandal, some heinous Crime, as murder, Manslaughter, Perjury, Forgery, etc. Villainy, Bastardy, Schism, heresy, Miscreancy, 
Co. 558. a. Dyer 293. p. 1 & 2.  Misbelief, Atheism, Simony, 
* 2 H. 4. 37.  Illegal Plurality, 
† Allen vers. Nash. Pasch. 13 Car. 1. B. R. Vid. Pars. Co. par. 1. c. 9  Incorrigibleness and obstinate Disobedience to the approved Canons of the Church, as also to the Ordinary, 
* Cro. Jac. 37.  nonconformity, Refusal to use the Book of Common Prayer, or Administer the Sacraments in the order there prescribed; the use of other Rites or▪ Ceremonies, order, form, o● celebrating the same, or of other open and public Prayers; the preaching or publishing any thing in derogation thereof, or depraving the same having formerly been convicted for the like offence 
a St. 1 Eliz. c. 2. 14 Car. 2. 4.  the not Reading the Articles of Religion within Two months' next after Induction, according to the Statute of 13 Eliz. cap. 12. The not Reading publicly and solemnly the Morning and Evening Prayers appointed for the same day according to the Book of Common Prayer, within Two month; next after Induction on the Lord's Day; the not openly and publicly declaring before the Congregation there Assembled his unfeigned assent and consent (after such Reading) to the use of all things therein contained, or in case of a lawful Impediment, than the not doing thereof within one month next after the removal of such Impediment 
b 14 Car. 2. c. 4. ; a Conviction before the Ordinary of a wilful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion, a persistance therein without revocation of his Error, or re-affirmance thereof after such Revocation 
c 13 El. c. 12. 5. Br. 2. tit. Trial 54. Drunkenness, after Admonition, is cause of Deprivation. Hill. 9 Jac. Rot. 2001. Mortimer vers. Freeman. Brownl. Rep. par. 1. Actions, etc. ; likewise Incontinency, Drunkenness, and 40 day's Excommunication: To all which might also be added Dilapidation, for it seems anciently to have been a Dilapidator was a just cause of Deprivation, whether it were by destroying the Timber-trees, or committing waste on the Woods of the Church-Lands, or by putting down or suffering to go to decay the Houses or Edifices belonging to the same 
d 29 E. 3. 16. 20 H. 6. 46. 2 H. 4. 3. by Thirwit. Co. 11. p. 72. 20 H. 6. 36. ; as appears by Lyford's Case 
e Co. 11. par. 40. 49. in Lyford's Case. , as also in the Bishop of Salisbury's Case 
f Mich. 12 Jac. B. R. vid. Pars. Law, cap. 17. Co. 11. 98. b. 9 E. 4. 34. . Conviction of Perjury in the Spiritual Court according to the Ecclesiastical Laws, which although (as aforesaid) it be a just Cause of Deprivation, must yet be signified by the Ordinary to the Patron 
g 38 E. 3. 2 & 3. 5 H. 7. 14. acc. ; so also must that Deprivation, which is caused by an Incapacity of the party Instituted and Inducted for want of Holy Orders 
h 13 El. Dyer 292. acc. St. 21 H. 8. c. 13. .  
(3.) By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls, value 8 l. per ann. take another with Cure, immediately after Induction thereunto, the former is void, and void without any Declaratory Sentence of Deprivation in the Ecclesiastical Court, in case the Second Benefice were taken without a Dispensation; and of such Avoidance the Patron is to take notice at his peril 
i Mich. 9 Car. C. B. rot. 441. The King and the Bishop of Cant●r. and Pryst 's Case. Cro. 1. p. 258. acc. . And as Avoidance may be by Plurality of Benefices incompatible, without Dispensation: so also by not Subscribing unto, and not reading the 39 Articles (as aforesaid) which by the Statute of 13 Eliz. c. 12. is a Deprivation ipso facto, as if the Incumbent were naturally dead▪ insomuch that upon such Avoidance there need not any Sentence Declaratory of his Deprivation, but the very pleading and proof of his not Reading the said Articles, is a sufficient bar to his claim of Tithes, without any mentioning at all his being deprived in the Ecclesiastical Court 
k 31 Eliz. Morris and Eaton's Case, adjudge. vid. Pars. Law, c. 18. Shut● and Higden's Case in Vaugh. Rep. . Yet Sir Simon Degge in his Parson's Counsellor putting the Question, What shall be intended by the words [Deprived ipso facto,] as whether the Church shall thereby immediately become void by the Fact done, or not till Conviction or Sentence Declaratory? modestly waives his own Opinion, and says it is a Quaere made by Dyer, what shall be intended by the words [ipso facto Excommunicate] for striking with a Weapon in the churchyard 
l Dyer 275. b. p. 48. , albeit by the Canon Law, which condemns no man before he be heard, requiritur sententia Declatoria 
m Pars. Co. p. 1. cap. 9 .  
(4.) Touching Deprivation by reason of Miscreancy, the Cardinal, who by the Bishop of Durham was Collated to a Benefice with Cure, is (it seems) the standing precedent; in which case it was Agreed, that notwithstanding the Cardinal's being deprived for his Miscreancy in the Court of Rome, yet whether he were Miscreant or not, should be tried in England by the Bishop of that diocese where the Church was 
n Vid. 5 R. 2. Fitz. Trial 54. Hughe's Abridg. verb. Deprivation. .  
(5.) Among the many Causes of Deprivation forementioned you do not find that of Marriage in the Priest, which was anciently practicable, as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Mary's days, partly because he was a Married person, and partly because of his Religion, was restored again in the time of Queen Elizabeth. In whose Case it was Adjudged, That his Deprivation was good until it was voided by a Sentence of Repeal, whereby he became Incumbent again by virtue of his First Presentation without any new Presentation, Institution, or Induction 
o Co. 4. par. 102. Windsor's Case. . In those days it was held, That the Marriage of a Priest was a sufficient cause to deprive him of his Benefice. Mich. 4. Ma. Dy. 133.  
(6.) In the Case where a mere layman is Presented, Instituted, and Inducted, he is (notwithstanding his Laity) such an Incumbent de facto, that he is not Deprivable but by a Sentence in the Ecclesiastical Court; but then the Ordinary is in that case to give Notice of such Deprivation to the Patron; otherwise, in case the Ordinary for that cause refused him, when he was Presented by the Patron 
p 13 Eliz. Dy. 292. . But where nonage is the cause of Deprivation, as when one under the age of 23 years is Presented, Notice is to be given, it having been Adjudged, That no Lapse shall incur upon any Deprivation ipso facto without Notice, seeing the Statute of 13 Eliz. 12. says nothing of Presentation; which remaining in force, the Patron ought to have Notice 
q Trin. 18. Car. B. R. the B. of Hereford and Okoley's Case. Marsh. 119. Huge's Abridg. verb. Deprivation. .  
(7.) As in the Admission of a Clerk to a Benefice whatever is a Legal impediment, will also be a sufficient cause of Deprivation: so in reference to both, the Law takes care to distinguish between that which is only Malum prohibitum, and that which is Malum in se; and therefore doth not hold the former of them, such as frequenting of Taverns, unlawful Gaming, or the like, to be a sufficient cause of a Clerks Non-admission to a Benefice, or of his Deprivation being Admitted 
r 9 Eliz. Dyer 294. : Otherwise, if you can affect him with that which is Malum in se; in which case Notice is to be given the Patron by the Ordinary, of the Cause of his Refusal or Deprivation 
s 12 Eliz. Dyer 293. 〈◊〉. ; as also it is in case of Deprivation for not Subscribing or not Reading the 39 Articles of Religion according to the foresaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular, a general Notice of Incapacity not sufficing; in which case an Intimation of such particular Incapacity affixed on the Church-door (if the Patron be in partibus longe remotis, or may not easily be affected therewith) will answer the Law. Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. & 16 Eliz. Dyer. 327. & Co. par. 6. 29. Green 's Case.  
(8.) It is evident from the premises, That a Deprivation from an Ecclesiastical Benefice will follow upon a Disgrading or Degradation from the Ecclesiastical Function or Calling, for this Degradation is the Incapacitating of a Clerk for discharge of that holy Function, for it is the punishment of such a Clerk, as being delivered to his Ordinary, cannot purge himself of the Offence, whereof he was convicted by the Jury: And it is a Privation of him from those holy Orders of Clerkship which formerly he had, as Priesthood, Deaconship, etc. 
t Stanf. Ple. Cor. fo. 130, & 138. . And by the Canon Law this may be done Two ways, either Summarily, as by Word only; or Solemnly, as by divesting the party degraded of those Ornaments and Rites, which were the Ensigns of his Order or Degree 
u Vid. Seld. Tit. of Hon. fo. 787. . But in matters Criminal Princes anciently have had such a tender respect for the Clergy, and for the credit of the whole profession thereof, That if any man among them committed any thing worthy of death or open shame, he was not first executed or exposed to public disgrace, until he had been degraded by the Bishop and his Clergy; and so was executed and put to shame, not as a Clerk, but as a Lay-Malefactor; which regard towards ecclesiastics in respect of the dignity of the Ministry, is observed by a Learned Author to be much more Ancient, than any Papistical Immunity 
x Ridl. View. p. 2. cap. 2. Sect. 3. ; and is such a privilege as the Church, in respect of such as once waited on the Altar, hath in all Ages been honoured with.  
(9) Robert Cawdry Clerk, Rector of the Church of L. was deprived of his Rectory by the Bishop of London and his colleagues, by virtue of the high Commission to them and others directed, because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common Prayer; but the Form of the Sentence was, That the said Bishop by and with the assent and consent of Five others of the said Commissioners his Companions, and namely which Deprived him. It was not sound that the Commissioners were the Natural born Subjects of the Queen, as the Statute Enacts that they should be. And it was moved, That the Deprivation was void; (1) Because, that whereas the Commission is to them, or any Three of them, of which the said Bishop to be one amongst others, it ought to have been the Sentence of them all (according to the Authority given to them, which is equal) and not of one with the assent of the other. (2) Because it is not found, that the Commissioners are the Natural born Subjects of the Queen, as by the words of the Statute they should be. (3.) Because the punishment, which the Statute provides for those of the Ministry which deprave this Book, is to lose the profits of all their Spiritual promotions but for a year, and to be Imprisoned by the space of Six months, and not to be Deprived till the Second offence, after that he had been once committed; and therefore to deprive him for the First offence was wrongful and contrary to the Statute. But the whole Court, for the Form of the Deprivation, it is that which is used in the Ecclesiastical Courts, which always names the chief in Commission, that are present at the beginning of the Sentence, and for the other they mention them only as here; but of their assent and consent to it, and in such cases we ought to give credit to their Form, and therefore it is not to be compared to an Authority given at Common Law by Commission. And it is to be intended, that the Commissioners were the Natural born Subjects of the Queen, unless the contrary appear: But here at the beginning it is found, That the Queen Secundum tenorem & effectum Actus praedict. had granted her Commission to them in causis Ecclesiasticis, and therefore it appeareth sufficiently, that they were such as the Statute wills them to be. And for the Deprivation, they all agreed that it was good, being done by Authority of the Commission; for the Statute is to be understood, where they prosecute upon the Statute by way of Indictment, and not to restrain the Ecclesiastical Jurisdiction, being also but in the Affirmative. And further, by the Act and their Commission they may proceed according to their discretion to punish the Offence proved or confessed before them, and so are the words of their Commission warranted by the Clause of the Act. And further, the Ecclesiastical Jurisdiction is saved in the Act. And all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this Clause in the Act. Vid. Hill. 33 Eliz. Rot. 315. 
x Cawdry verse. Atton. Poph. Rep. Vid. this Case Coke lib. 5. 1. .  
(10.) Before many noblemen, Archbishops and Bishops, and the Justices and Barons of the Exchequer, (1) agreed, That the Deprivation of ministers for nonconformity to the last Canons was lawful by the High Commissioners: For by the Common Law the King hath such a power in Causes Ecclesiastical; and it is not a thing de novo, given by the First of Eliz. For that is Declaratory only, etc. and the King may delegate it to Commissioners: And the King without a Parliament may make Constitutions for the Government of the Clergy: and that such a Deprivation ex officio, without Libel, is good. (2.) That the Statute of 5 H. 5. c. 4. is to be intended, when they proceed upon Libel, and not when ex officio, Read the Statute. (3.) When their Petition is Subscribed by a great number, with intimation, That if the King denies their Suit, that many thousands of his Subjects shall be discontented; That this is an Offence Finable at discretion, and is near to Treason, by raising Sedition by Discontent, etc. 
y Hil. 2 Jac. 13. Feb. in Noy's Rep. post. Cas. Rye versus Fullcombe. . Vid. More 's Rep. Trin. 2 Jac. in the Star-Chamber.  
(11.) By the Statute of 13 Eliz. cap. 12. it is Enacted, That every person, etc. to be Admitted to a Benefice with Cure, except that within Two months after his Induction, he publicly Read the said Articles 
* The 39 Articles of Religion.  in the same Church whereof he shall have Cure, in the time of Common Prayer there, with declaration of his unfeigned assent thereto, etc. shall be upon every such default ipso facto immediately deprived. Then follows afterwards a Proviso relating to this clause, viz. Provided always, That no Title to confer or Present by Lapse, shall accrue upon any Deprivation ipso facto, but after Six months after Notice of such Deprivation given by the Ordinary to the Patron. Thus the Patron immediately upon such Deprivation may Present, if he please, and his Clerk ought to be Admitted and Instituted; but if he doth not, no Lapse incurs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary, who it seems is to supply the Cure until the Patron Present. In the last Case of the Lord Dyer 23 El. it was Resolved, That where a man having a Living with Cure under value, accepted another under value also, having no Qualification or Dispensation, and was Admitted, Instituted and Inducted into the Second, but never Subscribed the Articles before the Ordinary, as the Statute of 13 of El. requires. Upon Question, whether the First Living vacavit per mortem of him or not? the Court Resolved, That the First Living became vacant by his death, and not by accepting the Second, because he was never Incumbent of the Second, for not Subscribing the Articles before the Ordinary, whereby his Admission, Institution, and Induction into the Second Living became void, as if they had never been. This differs from the Case of not Reading the Articles within Two months after Induction: For the not Subscribing the Articles makes, that he never was Incumbent of the Second Living, and consequently no cause of losing the First; but the not Reading the Articles within Two months after Induction, doth cause a deprivation of that whereof he was Incumbent. For as an Incumbent, that without qualification or dispensation doth take a Second Living, doth thereby lose the First: so the same Incumbent for not Reading the Articles within Two months after his Induction into the Second may lose the Second, and thereby lose both, viz. the First by taking a Second without qualification or dispensation, and the Second for not Reading the Articles, as aforesaid, whereof he was complete Incumbent by Admission, Institution, and Induction of the Second Living full Two months before he lost it for not Reading the Articles 
z Vid. Shate and Higden's Case, in Vaugh. Rep. .  
(12.) Parker, being Parson of a Church was deprived by the High Commissioners for Drunkenness, and moved for a Prohibition, but it was not granted; and he was directed to have Action for the Tithe, 
Mich. 8 Jac. Parker's Case. Brownl. Rep. p. 2.  and upon that the validity of the Sentence shall be drawn in question. If a man be Admitted, Instituted, and Inducted to a Church, and afterwards is deprived for that he was Instituted contrary to the course of the Ecclesiastical Law, such Sentence of deprivation is void at the Common Law, for that it is as a Lay-Fee by the Induction 
a Hil. 15 Jac. B R. inter Hitchin and Glover. Adjudged. . If a Town erect a Common School, and allow Maintenance to the Schoolmaster, the Bishop may not remove him and put in another at his pleasure: But if he be a Recusant, he may remove him by the Statute of 23 Eliz. cap. 1. 
b Mich. 13 Jac. B The Bish. of Carl●sle's Case. per Curta●. .  
(13.) Although an Incumbent be deprivable, yet the Patron cannot Present another until he be deprived, for till then the Church is not void. Also if the Visitor by the Kings Command return into Chancery good matter for deprivation of the King's Clerk, yet the King cannot Present another to the Church, until he be deprived. Contra 17 E. 3. 59 b. 
c Rol. Abr. ver. Present●n. lit. P. .  
(14.) Where Two Incumbents were of one Church, one sued the other in the Ecclesiastical Court to be deprived for not Reading the Articles, and giving his Assent to them according to the Statute of 13 Eliz. The issue was, whether he gave his Assent, the Jury found he read the Articles, and said, I give my assent to them as far as they agree with the Word of God: And it was Adjudged, That it is not such an unfeigned Assent as is within the intent of the Statute 
d Smith and Clerk's Case. Cro. par. 1. .  
(15.) In a Prohibition the Case was, J. S. seized in Fee of the Advowson of the Church of C. Presented thereunto D. who was Instituted and Inducted, but did not read the Articles according to the Statute of 13 Eliz. Afterwards came the General Pardon of 18 Eliz. Afterwards D. was deprived by Sentence for not Reading the Articles; he Appealed, and depending the Appeal B. the Plaintiff obtained a Presentation from the Queen, and was Instituted and Inducted. D. died, and he that had the Advowson Presented R. the other Defendant, who sued in the Ecclesiastical Court to be Admitted. It was Resolved, That the Church became void presently by the not Reading of the Articles, and there needed not any Deprivation, and the Pardon in this case works nothing; for the Church being once void for not Reading the Articles, he cannot by the Pardon be restored, and the Pardon will not reach to it; for the punishment is to lose his Benefice: Adjudged, the Prohibition to stand 
e Trin. 41 Eliz. B. R. Baker and Brent's Case. . But if a man be deprived for an offence done Tempore Parliamenti, and the Offence be after pardoned by the same Parliament, and then the Parliament endeth. In this case the Deprivation is void in itself, and the party need not sue to reverse it; for the Parliament relateth to the First day thereof: As was Resolved in Foxe's Case 
f Trin. 27 Eliz. C. B. Foxe's Case. Cro. p. 1. .  
(16.) In a Quare Impedit the Case was, That L. had Two Presentations, and W. the Third, of Inheritance perpetual: L. Presented P. who was Instituted and Inducted, and afterwards in the time of Queen Mary was deprived, because a Married man; wherefore he again Presented D. who was Inducted. Afterwards P. was restored, with Declaration that he had good Title: Afterwards P. died, W. Presented H. L. brought the Quare Impedit. It was Adjudged for the Plaintiff, because the Sentence declaratory for the Restitution made a Nullity in the Deprivation, and so avoided the Incumbency of D. and so L. had good Title to Present at his Second Turn, and W. had no Title to Present as yet 
g Lovedon and Windsor's Case. Moor's Rep. .  
(17.) In Hornigold's Case against Brian it was said, That if a judgement of Deprivation be given in the Ecclesiastical Court, against a Parson for his Benefice; if presently upon this judgement he makes his Appeal, the Church is not void, but he remains Parson during all the time of this Appeal; for if by this he doth reverse the judgement, 
Trin. 13 Jac. B. R. Hornigold vers. Bryan. Bulstr. par. 3.  he shall need no new Institution and Induction: As if a judgement be given of a Divorce in the Ecclesiastical Court; and this is after reversed by an Appeal, there shall need no new Marriage. And in this Case Coke Chief Justice said, That 39 E. 3. hath the same Case: And that if an Appeal be from a Sentence of Divorce, they are now by this Baron and Feme again: So if a Parson be deprived, and Appeals, he is by this Parson again, and may have an Action of Trespass. And as touching Appeals in reference to Deprivation, there was a famous Case in the Court of C. B. about 5 or 6 Jac. a Worcestershire Case, between Lechmere Plaintiff and Carr Defendant, in an Action of Trespass, and upon Non Culp. pleaded, a Special Verdict was found, viz. That Bonner was made Bishop of London, in the time of King H. 8. and so continued until 2 Ed. 6. at or about which time a Commission issued forth to the then Lord Chancellor and others, to Convent Bishop Bonner before them, and to examine him; and if they found him to be Contumacious, and would not Answer them, the Commissioners were impowerd then to Imprison him, or to Deprive him: The Commissioners upon this did first Imprison him, and afterwards proceeded further against him, to Deprivation: Bonner from this Appealeth (and his Appeal not heard) Nicholas Ridley is made Bishop of London, who makes a Lease of the Park and manor of Bushley, under which Lease the Defendant claimed. Afterwards, viz. Primo Mariae, Ridley is declared to be an Usurper, and Bonner by a Sentence Definitive is restored again to the bishopric of London, and makes a Lease of the premises demised to the Plaintiff. Upon which Special Verdict the Points stirred were these: (1) Whether the Deprivation of Bonner was lawful or not; the Authority by the Commission being in the Disjunctive, viz. to Imprison or to Deprive him; and (as it was urged) they first Imprisoning of him, had thereby executed their Authority, and so then the Deprivation void. (2) Admitting the Deprivation void, than Bonner still continued Bishop of London: And then Ridley was never Bishop; for that there could not be two Bishops of London simul & semel, and so the Lease by him made to the Defendant was a void Lease. (3) Admitting the Deprivation good, then Quid operatur by the Appeal, whether it did not suspend the Sentence of Deprivation: And if so, then again, Ridley was no lawful Bishop; and so the Lease, under which the Defendant claimed, was void. This Case was Learnedly Argued by Common Lawyers, and also by Civilians, and the Judges inclined to be of Opinion for the Plaintiff. But the Defendant perceiving this, preferred his Bill in Chancery, and there obtained a Decree against Lechmere.  
(18.) If a mere Lay-person, who is altogether incapable of a Benefice, be Presented, Instituted, and Inducted; yet the Church is not therefore said by the Common Law to be void, as if no Presentation had been, but is still by that Law full of an Incumbent de facto, licet non de jure, until by Sentence Declaratory in the Ecclesiastical Court for want of Capacity the Church be Adjudged void; and upon this no Lapse shall incur against the Lay-Patron, without Notice (of such Incapacity and Sentence of Deprivation thereupon) to him given. King H. 4. Presented one that was Incapable of his Presentation, and the Presentee was thereby Admitted, Instituted, and Inducted, 
Doderidge of Advowsons', Lect. 14.  and afterward the Pope enabled the Presentee by his Bull; yet the King had a Scire facias, and thereby recovered his Presentation again, because the Incumbent was not capable when he was Presented.  
(19) If the Parson or other Incumbent be Excommunicate, and he so remaineth in his Obstinacy for the space of 40 days, he is for this deprivable of his Benefice, and yet the Church is not void in Deed, without Sentence of Deprivation given against him; and if before such Deprivation, the King as supreme Ordinary grant him a Dispensation, he shall hold his Benefice. Also Dilapidation, or spoil of the Church Benefice hath at Common Law been held worthy 
Doderigd. ib.  of Deprivation; which Law as it adjudgeth not the Church actually void (Death excepted) without a Sentence of Deprivation: So though such Sentence of Deprivation be merely wrongful, yet by that Law, as well as by the Canon, the Dignity is void, and the Sentence remaineth in force until it be reversed by Appeal; and therefore if the party deprived within due time Appeal (upon such Sentence of Deprivation given against him) such is the nature thereof, that it will hold the Sentence (upon which it was first brought) in suspense: so that if it be brought upon Deprivation, it voideth the vigour thereof, and reviveth the former dignity; for such Church shall not be void until the first Sentence of Deprivation happen to be affirmed in the Appeal. Touching Deprivation by Statutes and Positive Laws, vid. 13 Eliz. cap. 12. 26 H. 8. cap. 3. revived by 1 Eliz. cap. 31. or 3.   

CHAP. XXVIII.  
Of Incumbents; as also of Residence and nonresidence.  

1. Incumbent, who properly such; why so called, and what things preparatory to a complete Incumbent.  
2. The Rights of a complete Incumbent.  
3. The Rights of an Incumbent's Executor as to the Glebe.  
4. The Resident Incumbents duty, that keeps a Curate.  
5. Whether he be an Incumbent, who is in by the King's Presentation, where the King mistakes his Title.  
6. Whether an Incumbent may plead (as such) who was not Incumbent ante impetrationem Brevis.  
7. Whether the nonresidency of an Incumbent were punishable by the High Commissioners.  
8. How the 80 day's absence in a year shall be understood to include nonresidency, according to the Statute, etc.  
9 The Laws in force concerning Residence and nonresidence, and who are qualified for nonresidence.  
10. The Canon in the Provincial Constitutions touching the nonresidence of Vicars on their Vicarages.  
11. The Form of the Oath of Residence on a Vicarage.  
12. Whether a Parson inhabiting in a message very nigh adjoining to the Parsonage-house, which he keeps also in his own hands, be a Resident within the intent of the Statute.  
13. What the Law requires for Residence; and what are the just Causes of nonresidence.  
14. An Incumbent stands charged with the arrearages of a Pension, issuing out of his Church, that were behind in his Predecessor's time, as well as those accrueing in his own time.  
15. The Constitution touching the Oath of Residence; as also how the Incumbent may be out of his Parish, and yet be reputed as Resident.  
16. What shall be accounted such an Absence or nonresidence within the Statute, as to avoid a Lease made by the Incumbent.  
17. Indictment against a Common Informer, exhibiting an Information against Two Parsons; one for nonresidence, the other for taking a Farm.  
18. Covenants as well as Leases made void by the intent of the Statute of 13 & 14 Eliz. by reason of Eighty days Absence.   
(1.) INcumbent, from incumbere (signifying as well to possess and keep safely, as to endeavour earnestly) is a Clerk duly possessed of and Resident on his Benefice with Cure 
a Co. on L. fo. 119. b. . For the faithful discharge whereof he is to employ his study and utmost endeavour 
b 10 H. 6. 7. : For which reason especially he is so denominated. There are Four things preparatory to the being of a complete Incumbent: (1) The Patron's Presentation, or his free Gift or Commendation of his Clerk to the Parsonage or Vicarage by writing in his favour to the Bishop. (2) The Bishop's Admission of such Clerk by his allowance or approbation of him after due Examination, and by making a Record of his Name accordingly. (3) The clerk's Institution to such Benefice or Vicarage by the Bishop's words, Instituto te, etc. (4) The Clerk's Admission or Induction, whereby he is put into Actual possession thereof by the Archdeacon's or others delivery to him of the Ring or Keys of the Church-door, ringing the Bells, etc. And until these things be done, he is not a Complete Incumbent 
c Art. Cle. ch. 13, 14 H. 7. 28. Dyer 326. Co. 5. 58. 4. 79. . After which, and possession Six months, there is such a Plenarty as gives such a Title to that Presentation, as will bar pro hac vice any others in a Quare Impedit 
d 21 El. 4. 34. & Kelw. 88 Co. 4. 79. 7. 38. on Litt. 344. . So that those things that are to make a perfect Incumbent (after Presentation had) do depend upon the duty of the Ordinary; as (1) Admission, which requireth Examination of the Clerk; whereupon sometimes ensueth Refusal, and thereupon either Notice or no Notice (as the case requires) is to be given to the Patron. (2) Institution. (3) Induction. Upon the Patron's not Presenting within the time limited, the Lapse incurs to the Bishop, from him to the Metropolitan, and from him to the Crown, where it resteth. But if the Bishop take his time, then is his Presentation a Collation, and in the Right of the Patron himself.  
(2.) The Incumbent is that person in Law, to whom the Fruits of any Ecclesiastical Benefice do belong, insomuch that the Fruits taken during the vacation or vacancy of a Benefice, shall be restored to the next Incumbent 
e St. 28 H. 8. c. 11. , who stands charged to the King for the First-Fruits, to be accounted immediately from and after the Avoidance or Vacancy of any such Benefice or Spiritual promotion 
f Ibid. ; and for that end, and towards the payment of the said First-Fruits, the next Incumbent shall have a restitution, of the Tithes, Fruits, Oblations, Obventions, Emoluments, Commodities, Advantages; Rents, and all other Revenues, Casualties, and Profits whatsoever, certain and uncertain, belonging to any Archdeaconry, Deanary, Prebend, Parsonage, Vicarage, Hospital, Wardenship, Provostship, or other Spiritual promotion, Benefice, Dignity, or Office, growing or arising during the vacancy of any of the said Spiritual promotions 
g Stat. ibid. & Coke pla. fo. 368. ; and every Archbishop, Bishop, Archdeacon, Ordinary, or any other person, having to his or their uses received the same, that shall refuse to render and restore the same to the next Incumbent, shall forfeit the triple value of what he hath so received 
h St. ibid. .  
(3.) If any Incumbent happening to departed this life during the Incumbency or Plenarty, shall before his death have caused any of his Glebe Lands to be manured and sowed at his proper cost and charges with any Corn or grain, he may in that case make his last Will and Testament of all the profits of the Corn growing upon the said Glebe-Lands by him so manured and sown 
i Ibid. 21 H. 6 fo. 20. 34 H. 6. fo. 38. . And if one be put into a Place, then removed, and another put in, the first shall have the Tithe happening in such Vacancy 
k Hil 18 Jac. Wood's Case. ; for the succeeding Parson shall have the Tithes happening during the Vacancy, deducting the charges of collecting the same, and serving the Cure during such Vacancy. Also if an Incumbent be removed in a Quare Impedit, the Plaintiff shall not have the main profits 
l Per Co. Mich. 12 Jac. B. R. Case Gratnge and Howlett. Roll. Rep. . And an Incumbent being in by Usurpation, he cannot be removed but by a Quare Impedit 
m Mich. 13 Jac. B. R. Case of the King vers. Bish. of Norwich. .  
(4.) An Incumbent Resident that keeps a Curate, is obliged to read the Common Prayers in his Parish-Church once a month in his own person, on pain of forfeiting Five pounds for every omission 
n St. 14 Car. 2. c. 14. .  
(5.) In thomsons Case, where T. Libelled for Dilapidations against the Executors of his Predecessors, and Henden moved for a Prohibition; for that that T. is not Incumbent, for his Presentation was by the King ratione Minoritatis of one C. and the King had not any such Title to Present: for where the King mistakes his Title, the Presentation is void, and he is no Incumbent. 6. Rep. 26. Green's Case. And Sir Tho. Gawdy's Case, where the King Presented jure Prerogat. when he had another Title; and the present Action was adjudged void, and whether he is Incumbent or not, that shall be tried. But by the Court a Prohibition was denied, because that he was now Incumbent. And the Judges would not take notice of the ill Presentation of the King: But in case of Simony the Statute makes the Church void, and then the Judges may take notice of that, and grant a Prohibition, if the Parson sues for Tithes. But if a Quare Impedit be brought, and appears that the King had not cause of Presentation, than a Prohibition may be granted: which was also granted by all the other Justices. Mich. 3 Car. C. B. Thomson 's Case. Hetley's Rep.  
(6.) In Dame Chichleys' Case against the Bishop of Ely it was said by Henden, That an Incumbent by the Statute of 25 Ed. 3. c. 7. cannot plead (quatenus such) unless he be Incumbent ante diem impetrationis Brevis, unless he be Incumbent pendente lite he cannot plead, etc. Hutton, If one be Presented, Instituted, and Admitted before the Writ, and Inducted after, and before his Pleader, he may plead well 
o Pasch 3 Car. C. B. in dict. Cas. Chichley. Hetley's Rep. .  
(7.) A Libel was against H. Vicar of S. in the High Commission-Court at York, because that he was not Resident, but lived at Doncaster, and neglected to serve his Cure; and that divers times he, when the High Court visited, spoke so loud, that he was offensive to many, and being reproved for that, he gave a Scornful Answer: And that there was one Wright in the Parish, who had a Seat in the Church, and that the Vicar would Spit in abundance into the said Seat, and that when Wright and his Wife were there. And that in his Sermon he made Jests, and said, That Christ was laid in a Manger, because he had no money to take up a Chamber, but that was the knavery of the innkeeper; he being then in contention with an innkeeper in the Parish. And that in time of Divine Service he thrust open the door of Wright's Seat, and said, That he and his Wife would sit there, in disturbance of Divine Service. And for that a Prohibition was prayed and granted; for the High Commission cannot punish Non Residency, nor breaking the Seat in Divine Service: And the other were things, for which he shall be bound to the good behaviour; and the Complaint ought to be to the Ordinary 
p Howson 's Case. Herl. Rep. 13 Eliz. c. 20 That Statute speaks of Absence not above 80 days in a year in the Parson; 40 days in a Curate. .  
(8.) Note, by Tanfield, that by the Statute of 13 Eliz. cap. 20. of nonresidency, That if the Parson be Absent 80 days in a year, although it be at several times (viz.) ten days at one time, and twenty days at another time, until eighty days, etc. That is within the Statute, by which it hath been Adjudged 
q Sidner vers. Calver. Noy's Rep. .  
(9) The personal Residence of all Ecclesiastical persons on their Cures respectively is a duty so incumbent on them for the better discharge of their Sacred Function, the prevention of Dilapidations, and the maintenance of Hospitality, that it is enacted, That every Spiritual person promoted to any Archdeaconry, Deanary, or Dignity in any Church Cathedral or Collegiate, or Beneficed with any Parsonage or Vicarage, shall be personally Resident and abiding in, at, or upon such Dignity, Prebend, or Benefice, or one of them at the least; and that if any such person wilfully Absent himself from his said Benefice, etc. by the space of a Month at one time, or two Months at several times in any one year, to be accounted at several times, that such person so absenting shall forfeit ten pounds for every such default 
r St 21 H. 8. cap. 13. . It is also further provided, That the Parson or Vicar shall be Resident in and upon his Parsonage or Vicarage-House (if he have any) and not at any other House in the Parish; but if he hath no House on his Glebe, or be removed without fraud for his Health, or without fraud Imprisoned, or be beyond Sea in his majesty's Service, or without fraud abide in any University within this Realm to study, or be a Chaplain qualified for Plurality by the Statute of 21 H. 8. either of these may excuse his Residence for the time 
s Co. 6. 21. b. . Also the King may give a licence to any of his own Chaplains to be Non-Resident 
t 21 H. 8. c. 13. : And any Ecclesiastical person may be Non-Resident for such time as without fraud he is attending a Suit in Chancery. There are also other Chaplains of other persons that are qualified for nonresidence 
u 25 H. 8. cap. 16. 33 H. 8. c. 28. 21 H. 8. c. 13. Vid. Pars. Couns. p. 1. cap. 7. , which for brevity's sake are here omitted. And where a Chaplain is qualified in respect of his Service for Plurality, if his Lord die, or be Attainted, or be removed from his place, it will not it seems suffice that he be Resident only upon one of his live, without the King's Special licence with a Non obstante 
x Co. 4. 119. a. .  
(10.) The Canon made by Cardinal Otho, and afterwards Confirmed and de novo Established by Othobon, seems very severe as to Vicars in case of nonresidence; for in their Constitutions it is Ordained, That if any Non-Resident shall receive the profits or Fruits of a Vicarage, he shall restore the one moiety thereof to the Church, one half of the other moiety to the Poor of that Parish, and the rest to the Archdeacon of the place, if he discharge his duty in making a diligent Enquiry yearly herein, and shall forthwith make it known to the Bishop; and whoever shall disobey the premises by one Month, shall also be deprived of his other Benefices, if he have any, and be rendered incapable of ever having that Vicarage again, or any other Benefice for Three years: And in case the Archdeacon shall neglect what herein is enjoined him, he shall be deprived of that part allotted him as aforesaid, and suspended ab ingressu Ecclesiae. Constit. Othobon. de Residentia Vicariorum.  
(11.) The Oath of Residence on a Vicarage is as followeth, viz. Ego A. B. juro, Quod ero Residens in Vicaria mea, nisi aliter dispensatum fuerit à Dioecesano meo. What Spiritual persons may be discharged of Residence, and by what means, vid. St. 21 H. 8. 13.  
(12.) In an Information upon the Statute of 21 H. 8. cap. 13. of nonresidency, 
Hill. 8 Jac. 1610 Canning verse Dr. Newman. Brownl. pa. 2.  it was found by Special Verdict, That Dr. N. was Incumbent, invested in the Rectory of S. and that he was also seized of a House in S. aforesaid, situate within twenty yards of the Rectory, and that the Mansion-house of the said Rectory was in good Repair, and that Dr. N. held that in his hands and occupation with his own proper Goods, and did not let it to any other, and that he inhabited in the said message, and not in the Parsonage. The Statute of 21 H. 8. cap. 13. provides, That every Parson promoted to any Parsonage, shall be Personally resident, and abiding in, at, and upon the said Benefice: And in case any such Spiritual Parson keep not Residence at his Benefice, as aforesaid, but Absent himself wilfully by the space of a Month together, or two Months to be accounted at several times in any one year, and makes his residence or abiding in any other places by such time, that then he shall forfeit for every such default Ten pounds, the one half to the King, the other half to the Informer. The Question was, Whether the said Dr. N. were Non-Resident, and incurred the penalty of this Statute? It was Argued by Houghton, that he had incurred the penalty of the Statute, and was Non-Resident within the intent thereof; he said, that to some intent all the Parish may be said the Benefice of the Parson, for that he hath Benefit out of it, and he is called Parson of such a Town or Parish; but this is not the Benefice that the Statute intends, upon which he ought to be Resident, etc. Also he said, That there were Seven causes of making the said Statute, whereof but Two are to our purpose; the one is Hospitality, the other Relief of the Poor, and these are to be done in the Parsonage-house, for this is the Free Alms of the Church: And so it was Adjudged, 34 Eliz. B. R. Broom and Hudson; and 40 Eliz. B. R. between Butler and Goodall. Coke 21. b. That he ought to be Resident upon the Parsonage-house, and not elsewhere; and he agreed, That Imprisonment without deceit, and Sickness, are good Excuse. For the Defendant, Barker Serjeant argued, That it appears by the Special Verdict, that Dr. N. held the Parsonage-house in his own hands, and did not let it; whence he inferred, That his Servants were resident upon it, etc. and that by the Council of Lateran all the Parish is made the Benefice of the Parson, etc. Also, that before the said Statute every Spiritual man was obliged and compellable by the Ecclesiastical Law to be Resident; yet if he were in the King's Service, or an Officer of the Chancery, he should be excused, as appears in the Register, fo. 51. b. though that he were Dean, the which Office merely requires his Personal Residence, as it is there said. This Case was compounded by the Lord Coke, but he intended this was no Residence within the Statute, for this was not his Benefice, but the Tenants part of that, as he said hath been Adjudged in the Exchequer.  
(13.) In Butler and Goodall's Case, 
Vid. More's Rep. Co. 5. Butler and Goodall's Case. 40 Eliz. B. R.  it was Resolved upon the Statute of 21 H. 8. That a Parson of a Church ought to stay and be commorant upon his Rectory (viz.) upon the Parsonage-house, and not in any other House, although it be within the Parish; but lawful Imprisonment without Covin, is a good cause of nonresidence: Also, if there be no Parsonage-house (for impotentia excusat Legem) also Sickness without fraud, if the patiented remove by advice of his Counsel in physic, bona fide, for better air and recovery of his health. The Statute is intended not only for serving the Cure, but also for maintaining the habitation of the Parson, for him and his Successors, and for Hospitality. Vid. Co. 6. pa. 21. & Cro. par. 1.  
(14.) In the Case between Trinity college and Tounstall it was Resolved, 
Cro par. 1.  That an Annuity by Prescription for a Pension issuing out of the Church lay against the Incumbent, as well for the Arrearages due in the time of his Predecessor, as in his own time; for that the Church itself is charged with it in whose hands soever it comes.  
(15.) By Cardinal Otho's Constitution [De Institutione Vicariorum] it is Ordained, That none shall be Admitted to a Vicarage, unless he first take his Oath, that he will have his personal and constant Residence thereon; otherwise his Institution thereto to be null and void, and the Vicarage to be conferred on another. Const. Othon. de Instit. Vicarior. From which Canon the Gloss thereon doth raise this Question, viz. Whether a Vicar not having possibly any dwellinghouse yet built for his habitation in the Parish, and living for that reason in some neighbour-place, and at another man's Table out of his Parish, may according to the Oath aforesaid enjoined by the said Canon, be said to be Resident? where the Question though argued in the Negative, yet is Resolved in the Affirmative; and that he shall be reputed as Resident, if he be so nigh situate to his Parish, that the Inhabitants thereof may conveniently have access to him, as oft as the Parishioners have need of his Ministry, and so as on all requisitions he be ready to administer the Sacraments within the Parish; for in construction of Law, he is said to make his residence sufficiently there or in that place, where he doth discharge his work and duty, albeit he lives elsewhere: L. cum quidam facit. ff. defun. instruct. Likewise, the Law in requiring such Residence aims as well at Hospitality as at the discharge of the Ministry. Also, he that is Absent only about the affairs of the Church, is reputed in Law as Present and Resident: Also the Bishop may dispense with his nonresidence notwithstanding such Oath aforesaid: Glo. in ver. Residentiam. dict. Const. Otho. Yea, he may also be sometimes Absent not only upon necessary, but also upon his Family-occasions, with licence from the Bishop, as also for his Recreation, where it is for recovery of his health, or prevention of Sickness. Gloss. ibid.  
(16.) In an Action upon the Case, for a Promise, upon a Non assumpsit pleaded, a Special Verdict was found, upon which the Case appeared to be this: The Defendant by Indenture did Demise unto the Plaintiff all his Tithe of Corn and Hay, and the Agreement between them was this, 
Pasch. 7 Jac. B. R. Shepherd vers. Twolsie. Bulstr. Rep. par. 1.  the Plaintiff should pay him for the Tithe fifty five shillings, and this by agreement was to be paid at a day certain, then following: The Defendant having this Tithe, passed the same in this manner to the Plaintiff, and upon this Agreement and Promise, being not performed, the Plaintiff brought his Action. It was found, that the Defendant confessed the Agreement to be so, but in bar he pleaded the Statutes of 13 Eliz. cap. 20. and of 14 Eliz, cap. 11. for the avoiding of Leases made by a Parson, by his Absence from his Living by the space of eighty days in one year, and also shows that one Stallowe who was Parson of Sharrington, to whom these Tithes did belong (and in whose Right the Defendant claimed them) was Absent from his Parsonage by the space of eighty days in one year, and shows in what year, and so by this his interest determined, and Agreement with the Plaintiff by this made void; but they found further (as the Plaintiff made it to appear) That Stallowe the Parson of Sharrington was not Absent in manner as it was alleged, for that they found, that he did dwell in another Town adjoining, but that he came constantly to his Parish-Church, and there read Divine Service, and so went away again: They did also find, hat he had a Parsonage-house in Sharrington fit for his habitation; and whether this were an Absence within the Statute, as to avoid his Lease, they left that to the judgement of the Court. Yeluerton Justice, This is a good nonresidency within the Statute of 21 H. 8. cap. 13. but not an Absence to avoid a Lease made within the Statute of 13 Eliz. cap. 20. It cannot be said here in this Case, that he was Absent, for he came four days in every week, and in his Parish-Church did read Divine Service. William's Justice, upon the Statute of 13 and 14 Eliz. the Parson ought not to be Absent from his Church eighty days together in one year (à Rectoria sua;) but this is not so here, for he came to his Church, and read Divine Service there every Sunday, Wednesday, Friday, and Saturday, and therefore clearly this cannot be such an Absence, within the scope and intention of these Statutes, as thereby to avoid his Lease. Yeluerton Justice, he ought to be Absent eighty days together, per spatium de Octogin. diebus & ultra, and this to be altogether at one time, and so the same aught to have been laid expressly, the which is not so done here, for that it appears here, that he was at his Parsonage-house, and did read Prayers every Sunday, Wednesday, Friday, and Saturday; and so the whole Court were clear of Opinion, that this Absence here, as the same appeared to be, was not such an Absence by the space of eighty days in one year, to avoid his Lease within the said Statute, and so the Defendants Plea in bar not good, and therefore by the Rule of the Court judgement was entered for the Plaintiff.  
(17.) An Information was Exhibited against Two Parsons by J. S. 
Mich. 10 Jac. B. R. J. S. against Mar●yn and Gunnystone. Blustr. par. 2.  upon the Statute of 21 H. 8. cap. 13. against one of them for nonresidency, and against the other for taking of a Farm; the one of them pleaded Sickness, and that by the Advice of his Physicians he removed into better Air, for Recovery of his health; and this is justifiable by the whole Court: vid. more for this Coke 6. par. fo. 21. in Butler and Goodall's Case. The other pleaded, That he took the Farm for the maintenance of his House and Family: And this also is justifiable by the Opinion of the whole Court. Crook moved the Court for the Defendants, That the Plaintiff was a Common Informer, and that he did prefer this Information against them, only for their vexation, and so to draw them to compound with him, as formerly he hath so done by others, for which they prosecuted an Indictment in the country, upon the Statute of 18 Eliz. cap. 5. made to punish Common Informers for their Abuses. The whole Court did advise them to prosecute this Indictment against him. Crook moved for the Defendants, That in regard the Informer is a man of no means, that the Court would order him to put in sufficient Sureties to answer Costs, if the matter went against him, and that then the Defendants would presently answer the Information. William's Justice, nullam habemus talem legem, this is not to be done; but the Rule of the Court was, That the Defendants should not answer the Information, until the Informer appeared in person.  
(18.) In an Action of Covenant the Plaintiff in his Declaration sets forth, 
Trin. 14 Jac. B. R. Rudge vers. Thomas. Bulstr. par. 3.  that the Defendant was Parson of D. and did Covenant, That the Plaintiff should have his Tithes of certain Lands for thirteen years; and that afterwards he Resigned, and another Parson Inducted, by which means he was ousted of his Tithes, and for this cause the Action brought. The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for nonresidency, upon which Plea the Plaintiff demurred in Law. It was urged for the Plaintiff, That the Plea in Barr was not good, because it is not averred, that the Defendant had been Absent from his Parsonage by the space of Eighty days in a year, for otherwise the Covenant is not void by the Statutes. For the Defendant it was alleged, That the pleading of the Statute of 13 Eliz. is idle, but by the Statute of 14 Eliz. this Covenant is made void; for by the Statute, all Covenants shall be all one with Leases, made by such Parsons: And in this case, if this had been a Lease, this had been clearly void by Surrender of the Parson; and so in case of a Covenant. Doderidge and Houghton Justices, The Statutes of 13 and 14 Eliz. do not meddle with Assurances at the Common Law, nor intended to make any Leases void, which were void at the Common Law; and therefore this Covenant here is not made void by the Statute, unless he be Absent Eighty days from his Parsonage. Coke Chief Justice agreed with them herein. They all agreed in this Case for the Plaintiff, and that by the Preamble of 14 Eliz. it is showed, the intent of the Statute to be to make Covenants void, within the Provision of 13 Eliz. by Absence for Eighty days: And judgement in this Case was given for the Plaintiff.   

CHAP. XXIX.  
Of Abbots and abbeys; also of Chauntries; and of the Court of Augmentations.  
1. Abbot, what; why so called; the several kinds thereof; and how many anciently in England.  
2. A famous Abbot anciently in Ireland: The manner of their Election prescribed by the Emperor Justinian: Anciently the Peers of France were frequently Abbots.  
3. The ancient Law of King Knute concerning Abbots.  
4. The Abbot, with the Monks, making a Covent, were a Corporation.  
5. Abbots were either Elective or Presentative; they were Lords of Parliament: How many abbeys in England, and which the most Ancient, Founded by King Ethelbert.  
6. Chaunter and Chauntries, what, and whence so called; their use and end; 47 belonging anciently to St. Paul's in London; when and by what Laws their Revenues were vested in the Crown.  
7. Before King John's time Abbots and Priors were Presentative, afterwards Elective.  
8. Six Differences taken and Resolved in a Case at Law touching Chauntries.  
9 Certain Cases in Law touching Lands, whether under pretence of Chauntries given by the Statute to the King, or not.  
10. What the Court of Augmentations was, the end and use thereof, when Erected, how Established, and by whom Dissolved.  
(1.) ABba and Abbas have one and the same signification, therefore Abbots are called Patres. c. ult. de Regular. Tuseh. Concl. 3. nu. 7. It is either an Hebrew or Syriack word, signifying Pater with the Greeks and Latins, from the two first Hebrew Elements or Letters, Aleph and Beth inverted; which Name the Monks first assumed at their Original in Syria and Egypt. And although now in this Kingdom we know no more of this word [Abbot] than the very Name thereof; 
Marsil. Calvin.  yet for his Antiquities sake he hath the Alphabetical precedence in the Index of this abridgement, whether he be Archimandrita, Novel. Const. 115. or Coenobiarcha, or Archimonachus. Hottom. in ver. Feuda. Marsil. colum. de Eccles. redit. c. 15. nu. 5, 6. whether mitred, and thereby exempt from the Diocesan's Jurisdiction, as having within their own Precincts Episcopal Authority in themselves, and being Lords in Parliament, whence called Abbots Sovereign, 9 R. 2. c. 4. Or not mitred, but subject to the Diocesan in all Spiritual Government. c. Monasteria. 18. q. 2. c. Abbas, etc. Visitandi, cum 4. seq. ibid. Omnes 16. q. 7. & c. cum Venerabilis. Extra. de Relig. Dom. vid. Stow. Ann. p. 442. So called Abbas, because he is Pater Monachorum, Januen. in suo Cathol. Glow. Jo. Andr. the Rescript. c. 1. verb. Abbates. in Clem: & Coke de Jure Ecclesiast. fo. 28. and hath the chief government of a Religious House, and who with the Monks makes a Covent; of these Abbots, together with two or three Priors there, were heretofore in England about the number of Thirty in all. What Consecration is to a Bishop, that Benediction is to an Abbot, but in divers respects; for a Bishop is not properly such until Consecration; but an Abbot being Elected and Confirmed, is properly such before Benediction. cap. de Suppl. negl. Prael. lib. 1. & 10. Clem. §. Statuimus, de Stat. Monach. in Clem. & cap. Meminimus, de Accusat.  
(2.) The Venerable Mr. Bede speaks of an Island in Ireland, which ever had an Abbot vested with such power and authority, that every Province, yea, and the Bishops themselves were under his Government, and subject to his Jurisdiction: Beda, lib. 3. de Gestis, cap. 3. Spelm. de Prim. Eccles. Angl-Sax. An. 603. The Emperor Justinian in the First Book of his Codes hath expressly ordained and prescribed the manner and form of the Election and Confirmation of an Abbot, and what persons they ought to be, and how qualified, that shall be accounted worthy of that Ecclesiastical Dignity. C. l. 1. tit. 3. l. 47. & l. 40. De Episc. & Cler. & Novel. 5. cap. 9 & Novel. 123. c. 34. Mr. Blount in his Nomo-Lexicon takes notice of the word [Abbacy] and says, it is the same to an Abbot, as bishopric is a Bishop, resembling it to the word Paternity, and a very Ancient Record wherein that word is used. An. 34, & 35 H. 8. c. 17, 18. Sciant .... quod Ego Isabel Comitiss. Penb. pro Salute Animae meae Dedi Deo & Abbathiae de Nutteleg. totam Wicham juxta dictam Abbathiam, etc. In these latter Ages the Abbots, through the savour of Princes, and their respect to the Church, have been reputed as Peers and Secular Lords, to whom the granted the Provenues of Abbacies proportionable to such Dignity for the support thereof: Thus many of the Peers of France have very anciently and frequently been Abbots, as appears by Paradine, who wrote the Annals of Burgundy nigh Seven hundred years since, and then affirmed, that he had seen very Ancient Records, wherein the Peers of France used these styles and distinctions, viz. Duke and Abbot, Earl and Abbot, etc. Guil. Paradin. Annal. Burgund. lib. 2. sub. An. 1103. & Prat.  
(3.) Notwithstanding the ill opinion, which in these days not without cause is conceived of the Ancient abbeys, yet it cannot without some breach of charity be well supposed; but that such Houses, commonly called Religious, were in the primitive and true intent thereof better purposed by the Founders, than after practised by their Inhabitants; for by the Law made in the days of K. Knute nu. 6. i: is evident, what strict Devotion and blameless Conversation the Ancient Princes of this Realm expected from such as then possessed these abbeys: The Law was this, viz. We will that god's Ministers, the Bishops, Abbots, etc. do in a special manner take a right course, and live according to Rule; that they call to Christ night and day, much and oft, and that they do it earnestly: And we Command them, that they harken to God, and love Chastity: Full truly they wit, that it is against the Right, to meddle with Women for lust's sake: Annot. Ridl. View, etc. cap. 4. Sect. 1. Whereby it seems these Spiritual Fathers were suspected of old to incline to the Flesh all days of the week. An Abbot might be Presented to a Church, for he was capable of an Appropriation, whereby he was perpetual Parson Imparsonee, and had Curam Animarum. 34 H. 6. 15.  
(4.) The Abbot, or the chief Head of abbeys, being together with the Monks of the same House, a Covent, made a Corporation, and was not by the Common Law further charged with his Predecessors Acts, than for such things as were for the use of the House, or such Acts as were done under the Common-Seal thereof 
a Terms Law, verb. Abbot. . And albeit a Creditor had a Specialty against a Monk; yet not the Abbot, but the Monk's Executors were chargeable for his Debt contracted before his entry into Religion, unless it were for some such thing as came to the use of his House 
b Ibid. .  
(5.) Of these abbot's some were Elective, others Presentative; and under this Title were comprehended other Corporations Spiritual, as Prior and his Covent, friars, Canons, and such like: And as there were lord-abbots': so there were also lord-priors', who had exempt Jurisdiction, and were Lords of Parliament: Co. de Jur. Ecclesiast. fo. 28. a. It is supposed, that the Abbot of St. Augustine's in Canterbury was the Ancientest of any in this Kigdom, Founded by King Ethelbert in An. 
An. 602.  602. And next to him in Antiquity the Abbot of Westminster, Founded by Seabert King of the Westsaxons, An. 604. Some difference there is among Authors touching their Number in this Realm, whereof some reckon but Twenty six. Sir Edw. Coke says they were Twenty seven Abbots and Two Priors 
c Co. on Litt. fo. 97. . But a very Modern Writer gives us a Catalogue of no less than Thirty three Abbots and Priors 
d Mr. blunt in his 〈◊〉 Lox. ; whereof some were prior's aliens born in France, governors of Religious Houses, erected for Foreigners here in England, suppressed by Henry the Fifth after his Conquests in France, and their Revenues after given by Henry the Sixth to other Monasteries and Houses of Learning, specially for the crecting of King's college in Cambridge and Eton, Stow, Annals, p. 582. 1 H. 5. c. 7.  
(6.) Chaunter [Cantator] A Singer in the choir 
e An. 13 El. cap. 10. . At St. David's in Pembrokeshire, the chanter is next to the Bishop, there being no Dean 
f Camb. Bri. . Chantry [Cantaria] Aedes sacra; ideo instituta & dotata praediis, ut Missa ibidem cantaretur pro anima Fundatoris & Propinquorum ejus. These were commonly Little chapels; or particular Altars in some Cathedral or Parochial Church, endowed with Lands or other Revenues, for the maintenance of one or more Priests, to officiate as aforesaid; whereof mention is made in certain Statutes of this Realm 
g 37 H. 8. cap. 4. 1 Ed. 6. c. 14. 15 Car. 2. c. 9 , though not to such Superstitious uses as aforesaid. A man might make a chantry by licence of the King without the Ordinary, for the Ordinary had nothing to do there with: 9 H. 6. 16. It might be Founded in a Cathedral Church, also in any other Church: 9 H. 6. 17. Roll. Abr. ver. Chantry, lit. A. Q. 387. Of these Chauntries there were (it seems) 47 belonging to St. Paul's Church in London 
h v. Dugdales Hist. Eccl. . The Superstitious main use and intent of these Chauntries originally was for Prayers for Souls departed, under a supposition of Purgatory, and of being released thence by Masses Satisfactory; and as in Adam's Case, fo. 112. mentioned by Sir Hen. Hobart Chief Justice in the Case of Pitts against James, That Prayer for such Souls was the general matter of all Obits, anniverssaries, and the like, which were but several Forms of Prayers for Souls: And (as in the said Case of Pitts) if a man give Land to a Parish-Priest to pray, or say Mass for his Soul; this is within the Law, that is within the Statutes of 37 H. 8. c. 4. and 1 Ed. 6. c. 14. as it is held 16 Eliz. Dyer, 337. for to this purpose he is a Souls-Priest, not a Parochial 
i Trin. 12 Jac. rot. 2187. Case Pitts verse. James. Hob. Rep. . By which Statutes all Chauntries, and all their Lands and Hereditaments are given to the Crown, and all Lands, Rents, and Profits given to the finding of a Priest for the Superstitious ends aforesaid, to continue for ever, are vested in the actual possession of the King, and of his Heirs and Successors for ever, who shall also have by the said Statute of 1 Ed. 6. all the Common Goods of such Chauntries, and the Debts thereof shall be paid to the King's Treasurer; and shall also have all Lands, and all such Sums of money, and part of the issues of Lands given for the maintenance or for the finding of any Anniverssaries, Obits, Lights, Lamps, etc. Only the said Act doth not extend to such Lands, as whereof the governors of such colleges as were mentioned therein, or Chauntries, were seized to their own uses, nor to any Lands or Rents given by the King for the term of his life only, nor to any Copyhold-Lands; and all Rents and yearly profits due to any Patron, Donor, and Founder of any of the said Chauntries, etc. and the Right of others (except the governors of Houses) are by the said Act saved to them 
k St. 1 Ed. 6. c. 14. : All Chanteries, colleges, Free-Chappels and Hospitals, were by Parliament given to King H. 8. for the carrying on the War against France and Scotland. Towards the Charges of which Wars the King obtained a Grant in Parliament of the same, with the Lands thereto belonging, to be united to the Crown: But dying before he took the benefit thereof, he left that to such of his Ministers, who had the managing of Affairs in his Son's Minority: Heyl. Hist. Eccles. pag. 12. In the Reign of King Ed. 6. one of the great Affairs was the retrieving of a Statute made in the 27th year of King H. 8. by which all Chanteries, colleges, Free-Chappels, and Hospitals, were permitted to the disposing of the King for term of his life; but the King dying before he had taken many of them into his possession, it was set on foot again in the time of King Ed. 6. and by Parliament during his Reign it was Enacted, That all such colleges, Free-Chappels, and Chanteries, as were in being within Five years of the present Session, which were not in the Actual possession of the said late King, etc. other than such as by the King's Commissions should be altered, transported, and changed; together with all manors, Lands, Tenements, Rents, Tithes, Pensions, Portions, and other Hereditaments, to the same belonging, after the Feast of Easter than next coming, should be adjudged and deemed, and also be in the Actual and Real possession and Seisin of the King, his Heirs and Successors for ever. And although the Hospitals, being at that time 110, were not included in this Grant, as they had been in that to the King deceased, etc. yet there were 90 colleges within the compass of that Grant (those in the Universities not being reckoned in that Number) and not sewer than 2374 Free-Chappels and Chanteries; the Lands whereof were thus conferred upon the King by Name, but not intended to be kept together for his benefit only. In which respect it was very strongly insisted on by Archbishop Cranmer, That the dissolving of these colleges, Free-Chappels, and Chanteries, should be deferred until the King should be of Age; to the intent that they might serve the better to furnish and maintain his Royal Estate, than that so great a Treasure should be consumed in his nonage, as it after was. These Chanteries consisted of Salaries allowed to one or more Priests, to say daily Mass for the Souls of their deceased Founders and their Fri●rds: which not subsisting on themselves, were generally incorporated and united to some Parochial, Collegiate, or Cathedral Church. No fewer than 47 in Number being (as aforesaid) found and Founded in St. Paul's Free chapels, though Ordained for the same intent, were independent of themselves of stronger Constitution and richer Endowment, than the Chanteries severally were. All which Foundations having in them an admixture of superstition (as presupposing Purgatory, and Prayers to be made for the deliverance of the Soul from thence) were therefore now suppressed upon that account. Heyl. Hist. Eccles. in temp. Ed. 6. pag. 50, 51.  
(7.) Before King John's time the King and other Founders and Patrons of Priories and abbeys, were wont to present Priors and Abbots 
l 11 H. 4. 68 ●. : But by King John there was a Free Election granted unto Priors 
m Ibid. .  
(8.) In adam's and Lambert's Case, touching Chanteries these differences were taken: (1) If one give 20 l. per annum for the Finding of a Priest, and limit to the Priest 10 l. per annum; all is given to the King, for the residue shall be intended for the finding of Necessaries: otherwise it is, if a Condition be annexed to the Gift, to give 10 l. per annum to a Priest, there the King shall have but 10 l. (2) Land of 20 l. per annum is given to find a Priest, with 10 l. per ann. thereof, and that the other 10 l. shall be to the Poor, the King shall have but 10 l. But if it be for finding a Priest and maintenance of Poor men, without limiting how much the Priest shall have, the King shall have the Land, for otherwise he shall have nothing. (3.) If Land of 20 l. is given for finding Salary for a Priest with 10 l. of it, and also a good use is limited, there the King shall have but 10 l. although the other Necessaries are to be found for the Priest, because a good use in certain shall be preferred before a Superstitious incertain use; but if nothing in certain be limited to the Priest, the King shall have the landlord. (4) If Land be given to find a Priest, the King shall have it; but if a Priest have but a Stipend, the King shall have but the Stipend. (5.) When a certain Sum is limited to a Priest, and other good uses are also limited, which depend upon the Superstitious use, all is given to the King. (6.) If all the uses be Superstitious, of what certainty soever they are, the Land is given to the King; otherwise it is, if there be any good use 
n Co. 4. adam and Lamber●'s Case. 4● & 45 Eliz. B. .  
(9) The Case was where A. devised to the Dean and Chapter of Y. 400 l. to the intent to find a chantry in their Church perpetually, and an obits for the Soul of D. and that the Chantery-Priest should have 40 Marks yearly; King H. 4. gave licence to the Dean and Chapter to purchase divers Lands in F. ad onera & opera pietatis: In the Will of A. they purchased Houses in F. and made Ordinances how the Priests should be maintained, and obliged themselves & omnia bona sua ad performandum; and they employed 8 l. for the maintenance of the Priest, and other Sums for the Obits: Resolved, That this was not a Chauntery, either in truth or in reputation, within the intent of the Statute of 1 Ed. 6. because here are not any Lands given by A. and his Intent cannot make a Chauntery, nor appoint any Lands thereunto, but obliged their Goods for the payment of an Annual Sum to a Priest; and when no Lands are given, nor employed to that purpose, it is not reason they should be given to the King 
o Mich. 2 Jac. B. R. H●ll●way and Watkins Case. Cro. par. 2. .  
A Freeman of London seized of messages of the value of 9 l. 4 s. per ann. out of which a quitrent of 42 s. per ann. was paid, 6 H. 7. devised the same to the Parson and Churchwardens of the Parish of S. and their Successors, That the Churchwardens should receive the Profits thereof, and therefore should find a Chaplain for ever, to pray for the Soul of him and his Ancestors, and to find an Anniversary, expending yearly on it 13 s. 4 d. and the Residue of the profits thereof to be expended and employed about the Reparations of the said Church; which were done accordingly. The Question now was, Whether these messages were given to the King by the Statute of 1 Ed. 6. of Chaunteries. It was said, part of the Profits were given for a good use, and that should save the Lands: But Resolved, because that was incertain, for it is (si quid fuerit) and also for that it appeareth, That the Superstitious uses and the quitrent did amount to the full value of the messages; and the value shall be taken as it was at the time of the making of the Will, and not to be of any greater value; that the said messages were given to the King by the said Statute 
p Pasch. 12 Car. B. R. Humphreys & Knight's Case. Cro. par. 3. .  
A man devised two Houses in L. to the Churchwardens of S. (1) To find an obits, and to bestow 3 s. per annum upon the same obits. (2.) The residue of the Profits to Repair the said Church of S. and to provide Ornaments in the said Church. In this Case it was Adjudged, That by the Statute of 1 Ed. 6. no more of the Land was to the King, than was given to the obits; and the Devise to the other uses of the rest was good 
q Hart and Brewer's Case. Cro. par. 1. .  
A Citizen and Freeman of London seized of divers messages and Tenements of the yearly value of 30 l. 6 s. 8 d. by his Will before the Statute of 1 Ed. 6. Devised the same to the Corporation of Skinners of London, and that 42 s. 8 d. thereof should be employed upon an obits, and 12 Marks yearly thereof upon the Priest, and the residue to be employed upon Poor men of the Corporation decayed by Misfortune, who inhabited the said messages and Tenements, and appointed the said Poor men to pray for his Soul, and further with the Profits to repair the messages and Tenements, and after the Statute of 1 Ed. 6. was made of Chanteries. It was the opinion of the Court, (1) That Lay-Corporations are excepted out of the Statute for their Lands, which they have to increase their Treasure for the good of the Corporation, but not for Lands which they have to employ to Superstitious uses. (2) Resolved, That all the money which was given for the obits, and the finding of a Priest, was a Superstitious use, and given to the King by the Statute; but that which was given for the maintenance of the Poor men, and although it was appointed them to pray for his Soul, which was a Precept suitable for that time, and which was given for the Reparation of the messages, was not given to the Crown by the said Statute: And Turner's Case was vouched to be Adjudged, where Land was given to the intent, that his Feoffees should keep an obits with so much of the Profits of it as they should think fit in their discretion, that the Land thereby was not given to the Crown, but so much of the yearly Rent as the Feoffees employed to that purpose; and if they had employed nothing that way, than nothing was given to the Crown: In the principal Case it was Adjudged against the Queen and Informer 
r The Case of the Skinners of London. . And in the Case between the Queen and Palmer it was said by Anderson Chief Justice, That where a Gift is made to sustain Poor men and Mass-Priests, without limiting a certain quantity, how much to one use, and how much to the other use, there the Queen shall have the whole Land: But if the quantity was appointed as to one use, and how much to the other use, there the Land is not forfeited, but only so much as is employed to the Superstitious uses 
s Pasch. 30 Eliz. More's Rep▪ .  
(10.) In order to the better execution of the premises, there was a Court established, commonly called the Court of Augmentations, erected as a Court of Record, by Authority of Parliament An. 27 H. 8. which was to have one Great Seal, and one Privy Seal; consisting of a Chancellor as the chief and principal Officer thereof, a Treasurer, Attorney, solicitor, Clerk, Usher, and Messenger. All Lands, etc. belonging to Monasteries, Priories, and other Religious Houses, and Purchased Lands were within the survey and government of this Court; which (as the Lord Coke says) could not be erected but by Parliament, because a Chancellor and a Court of Equity were constituted 
t Co. Inst. p. 4. cap. 15. . There were also other Ministerial Officers that had relation to this Court; for there were Ten Auditors, called Auditors of the Revenues of the said Augmentations, and Seventeen particular Receivers of the said Revenues 
u St. 27 H. 8. c. 27. . This Court of Augmentations, together with the Court of General surveyors, being repealed, dissolved, extinguished, and determined by King H. 8. by his Letters Patents in the 38th year of his Reign, a new Court of Augmentations was erected by his Letters Patents; which Repeal and Dissolution thereof was held void in Law, because they had been erected by Authority of Parliament: For which reason also the new Erection of the new Court of Augmentations was held likewise void; and therefore the said Letters Patents, as well for the dissolution of the former, as for the erecting of the latter new Court of Augmentations, were after confirmed and established by a Statute enacted by King Ed. 6. 
x St. 7 E. 6. c. 2. vid. the rehearsal of the Stat. & Coke ubi supr. c. 16. . But afterwards Q. marry, according to the power given her for dissolution of the said Court by Act of Parliament, did dissolve the same by her Letters Patents, Dat. 1. Jan. in primo Regni, and the day next following by other Letters Patents united the same to the Exchequer, which was utterly void, because she had dissolved the same before: So as she pursued not her Authority; and so it was Resolved by all the Judges 
y Co. ibid. & Dyer 4 Eliz. 16. . The end and intent of this Court was, that the King might be justly dealt with touching the profit of such Religious Houses; and the Court took its name from this, that the Revenues of the Crown were so much augmented by the suppression of the said Religious Houses and their Lands; for by the suppressing of some, and the surrendering of other Religious Houses, the Royal Intrado was so much increased in the time of H. 8. that for the better managing of it, the King erected first the Court of Augmentations, and afterwards the Court of Surveyors▪ But in short time, what by the profuseness of some, and the avariciousness of others, it was at last so retrenched, that it was scarce able to find work enough for the Court of Exchequer. Hereupon followed the dissolving of the said Two Courts in the last Parliament by this King 
z Heyl. Hist. Eccl. p. 135. .   

CHAP. XXX.  
Of Annates or First-Fruits; as also of Tenths; of Aumone or Frank Almoign.  

1. Annates, what; why so called; paid anciently to the Pope; when and by what Laws translated to the Crown; a Court thereof, when erected▪ and by whom dissolved.  
2. The great Antiquity of Annates or First-Fruits; the great Revenue it brings to the Papal See; often complained of as a great grievance anciently.  
3. The Pope's receiving of Annates compared to Aaron the High Priest's receiving Tithe of Tithes: The Original, Antiquity, and Equity thereof controverted by some of the Ancient Canonists.  
4. What the Tenure of Aumone or Frank Almoigne is; a description thereof, with its use and end.  
5. The difference between Statute and Common Law touching Annates or First-Fruits, whether due and payable upon Institution, or not till Induction.  
6. To whom the Tenths of Spiritualties were anciently paid, and how they came to the Crown originally.   
(1.) BY the Statute of 25 H. 8. 20. Annates and First-Fruits of archbishoprics and bishoprics seem to be one and the same thing, and were Anciently paid to the See of Rome, and that throughout all Christendom, as were also the Primitiae, First-Fruits, or Profits of every Spiritual Living, but were afterwards by another Statute translated from the Pope to the Prince 
a St. 26 H. 8. cap. 3. . For the due regulation whereof there was a Court purposely erected by a Third Statute 
b St. 32 H. 8. c. 45. St. 34 H. 8. 17. 7 Ed. 6. 2. 1 Eliz. 4. , whereby it was made a Court of Record, and commonly called the Court of the First-Fruits and Tenths, and so continued until it was dissolved by Queen Mary 
c St. 1 Mar. S●ss. 2. cap. 10. ; since which time it was never restored, albeit the Profits were reduced again to the Crown by Queen Elizabeth 
d dict. St. 1 Eliz. 4. , and the matters thereof to be transacted, were transferred to the Exchequer. The First-Fruits after the last Avoidance were probably called Annates, because they took their measures from the rate or proportion of one years' profit of all Spiritual live and Promotions, and accordingly are to be compounded for: so that these Annates, Primitiae, and First-Fruits are all one; and it was anciently the value of every Spiritual Living by the year, which the Pope, claiming the disposal of all Ecclesiastical live, 
Mich. 5 Jac. Co. lib. 12.  reserved. These and Impropr●ations began about the time that Polydore Virgil, lib. 8. cap. 2. makes mention of, vid. Concilium Viennense, quod Clemens Quintus indixit pro Annatibus. These First-Fruits were given to the Crown, ●0 H. 8. cap. 3. Sir Ed. Coke citys an Ancient Record of this Subject, ●ill. 34 Ed. 1. An. 1307. At a Parliament held at Carlisle, great complaint was made of Oppressions of Churches, etc. by William Testa (called Mala Testa) and Legate of the Pope; in which Parliament the King, with the assent of his Barons, denied the payment of First-Fruits; and to this effect he writ to the Pope: whereupon the Pope relinquished his Demand, and the First-Fruits for Two years were by that Parliament given to the King. These First-Fruits or Annates, Primitiae, are the First-Fruits after Avoidance of every Spiritual Living for one whole year (except Vicarages not exceeding 10 l. 
Co. Inst. par. 4. ●ap. 14.  and Parsonages not exceeding 10 Marks) but all are to pay Tenths. Which Tenths Ecclesiastical, Decimae, are the Tenth part of the value of all Ecclesiastical live yearly payable to the King, his Heirs and Successors, by the said Statute of 26 H. 8. cap. 3. and 1 Eliz. to be valued according to the value of Ecclesiastical live, which were sometimes valued by a Book of Taxation made in 20 Ed. 1. which remaineth in the Exchequer, and by another Taxation in 26 H. 8. which also remaineth in that Court. And according to this latter Taxation are the values of Ecclesiastical livingsses computed for the First-Fruits and Tenths. 
Co. ibid.  The Lord Coke says, That the Bishop of Norwich had in 19 Ed. 3. by Prescription time out of mind, etc. First-Fruits within his diocese of all Churches after every Avoidance. But these were also given to the Crown by the Statute of 26 H. 8. cap. 3. And as for the Tenths the canonists do hold, That the Pope pretended to have them Jure Divino, as due to the High Priest by pretence of these words, 
Num. 18. 26, etc. vid. Jerom. in Ezek. c. 44. v. 28, etc.  Praecipe Levitis atque denuncia, cum acceperitis à filiis Israel Decimas quas dedi vobis, Primitias earum offerte Domino, id est, decimam partem Decimae, ut reputetur vobis in Oblationem Primitiarum tam de areiss, quam de torcularibus, & universis quorum accipietis Primitias offerte Domino, & date ea Aaron Sacerdoti. But the Parliaments in 25 H. 8. and 26 H. 8. were not of opinion that these Tenths did belong to the Bishop of Rome, as appears by the several Preambles of the Statutes then enacted: And had they been due Jure Divino to the Pope, it is not probable that Queen Mary by the Act of 2 & 3 Ph. & M. c. 4. would have exonerated and discharged the Clergy thereof, nor refused to have had them paid to the Pope; nor could the Bishop of Norwich (as aforesaid) have prescribed to have First-Fruits within his diocese, if they had been due to the Pope de jure Divino, speeially for that Anthony de Becke, for whom the Prescription was made, was a Reteiner to the Court of Rome, and made Bishop of Norwich by the Pope. Vid. Co. Instit. par. 4. cap. 14.  
(2.) It was an old Observation, and of no less truth than Antiquity, that there never was any Invention that ever brought more Treasure to the Bishop of Rome, than this of Annates, which is of far greater Antiquity than some Modern Writers suppose: so Polydore Virgil. Pol. Virg. de invent. rerum, lib. 8. cap. 2. Et Annates more suo appellant Primos fructus unius Anni Sacerdotii vacantis, aut dimidiam eorum partem. Historians do not agree, what Pope first imposed First-Fruits: Walls. An. Do. 1316. Trivet. Ranulphus Cistrensis, lib. 7. c. 42. Polyd. Virg. ubi supra. Platina, Fox, etc. This Tribute or Revenue long since, when the Bishop of Rome had not such large possessions as now he hath, yet at vast expense and charge to uphold and maintain his Dignity, was gradually by little and little imposed on such vacant Benefices as himself conferred and bestowed, which, as Hostiensis (contemporary with P. Alex. the Fo●rth) doth affirm, was often complained of as a very great Grievance: so that after this Labarell declared in the Council at Vienna, That Clement the Fifth, who was made Pope in the year 1305. forbade the receiving thereof; and that laying the same aside, the Twentieth part of the Sacerdotal Revenues should instead thereof be annually paid to the Bishop of Rome; but this not taking effect, the Pope so retained the said Annates to his Exchequer, as that to this day it remains one of the considerablest parts of his Revenue. Polyd. Virg. ubi supr.  
(3.) The Canonist Gammarus, in favour of the Apostolic See, asserts that Annates are very justly required by the Pope pro Conservando decenti statu, and compares it to Aaron the High Priest's receiving the Tithe of Tithes, the Tithe of such Tithes as were given to the other Priests; adding withal, that Annates are of very great Antiquity; Gammer. in Extr. Julii 2. de Simon. Papae Elect. nu. 253. in Repet. Jur. Can. To. 6. par. 2. fo. 54. as appears by the Concessions of Jo. And●aeas, and of Hostiensis; Jo. Andr. & Hostiens. in c. inter caetera, de Offic. Ordin. the which Tho. Aquinas doth not deny, saying, That it is but consonant to Natural reason, that he qui omnium curam habet, de Communi alatur; and thence concludes, That the Pope may require Tithes and Annates from the Clergy; Aquin. 2. 2. quaest. 87. artic. 4. As to the Original of these Annates, Platina and Blondus report them to have been first exacted by Pope Boniface the Ninth: Others assert it to be in the time of Pope John the Two and twentieth, which was above Seventy years before that Boniface. But Johannes Eccius in his Enchiridion against the Lutherans, says, that both Blondus, Platina, and Gravaminus, whom he there nicknames (Ecclesiae Consarcinatores) were all in an Error in ascribing the original of Annates to this Boniface or that John; for says he (quoting Johannes And●aeas for his Author) in the Council at Vienna, An. 1311. whereof P. Clement the Fifth was precedent (which was long before Boniface or John the 22d) there was a Debate concerning Annates; Jo. Andraeas ubi supr. & Gam. ubi supr. But their supposing Clement the Fifth to have been after John the 22d. was the ground or reason of their Error.  
(4.) Aumone or Frank Almoign is the same which we call Libera Eleemosyna, or Free Alms, whence that Tenure is known by the Name Tenure in Aumone, which is a Tenure by Divine Service 
a Britton. fo. 164. . It is a certain Tenure or Title of Lands at the Common Law, as when Lands or Tenements are freely given in the way of Alms, to some Church or Religious House, upon this condition or consideration, That Divine Service shall be offered, and Prayers made pro bono animae Donantis, or the like: So that this Aumone or Frank Almoign is no other than a Tenure or Title of Lands or Tenements bestowed upon God, by giving them to such as devote themselves to the Service of God, for pure and perpetual Alms: whence the Feoffors or Donors cannot demand any Terrestrial Service from the Feoffors, so long as the said Lands and Tenements remain in their hands 
b Britt. c. 66. nu. 5. . With this agrees the Grand Customary of Normandy, cap. 23. and whereof Bracton writes at large 
c Bract. l. 2. c. 5, & 10. vid. F. N. B. fo. 211. & New Book of Entries, verb. Frank Almoigne. . But Britton makes another kind of this Land, which is given in Alms, but not in Free Alms, because the Tenants in this are obliged to certain Services to the Feoffor 
d Britt. ubi supr. .  
(5.) In the Case of Dennis against Drake it was said, That if a man be Instituted to a Benefice, he ought to pay the First-Fruits before Induction by the Statute; but by the Common Law it was otherwise, for he is not to have the Temporalties until Induction, and therefore he could not pay the First-Fruits: But another person cannot be Presented to this Benefice during the continuance of the first Institution. And an Institution to a second Benefice is a present Avoidance of the first 
e In Case Dennis verse. Drake. Lane's Rep. Vid. Co. lib. 4. digby's Case. fo. 79. Mich. 5 Jac. Co. l. 12. .  
(6.) Decimae, id est, Tenths of Spiritualties were perpetual, and paid to the Pope, till Pope Vrban gave them to R. 2. to aid him against Charles, King of France, and others, who supported Clement the Seventh against him. And 5 H. 3. by the Pope's Bulls all Tenths were paid to H 3. for years: These were given to the King 26 H. 8. cap. 3. Vid. Lambert de priest. Angl. etc. fo. 128. cap. 10. St. ibid. inter Leges Inae, fo. 78. cap. 4.   

CHAP. XXXI.  
Of Altarage.  

1. The genuine signification of the word Altarage, what is comprehended under that word: Two Cases at the Common Law touching Altarage.  
2. A severe Canon made by Cardinal Otho against the gross abuse of Altarage; an Artifice to defeat that Canon: And whether Altarages may be let to Farm.  
3. Whether Tithe-Wool will pass by the word Altaragium?  
4. The word Altaragium shall be expounded according to the use and eugome of the place.  
5. Whether Tithe-wood may pass to the Vicar by the word Altaragium.   
(1.) ALtarage or Altaragium, a word though now somewhat obsolete, yet in signification of Ecclesiastical cognizance, and in the intent thereof practicable at this day. Mr. Blount in his Nomo-Lexicon takes notice thereof, as a word which comprehends not only the Offerings made upon the Altar, but also all the profit which accrues to the Priest by reason of the Altar, Obventio Altaris. And for further proof and illustration of this matter, there citys a precedent out of the Orders and Decrees of the Exchequer in the Reign of Queen Elizabeth to this effect, That upon hearing of the Matter between R. T. Vicar of West-Haddon, and E. Andrew's, it was ordered, That the said Vicar should have, by reason of the words (Altaragium cum manso Competenti) contained in the Composition of the Profits assigned for the vicar's Maintenance, all such things as he ought to have by these words, according to the Definition thereof made by the Reverend Father in God, John Lord Bishop of London, upon Conference with the Civilians, viz. etc. all Doctors of Law, h. e. by Altaragium, Tithes of Lamb, Wool, Colt, Calf, pigs, Goslins, Chicken, Butter, Cheese, Hemp, Flax, Honey, Fruits, Herbs, and such other small Tithes, with Offerings that shall be due within the Parish of West-Haddon 
a Mich. 21 Eliz. in Scac. inter Turner and Edwards. . The like Case was for Norton in Northamptonshire, heard of late years in the said Court, and upon the Hearing ordered in like manner as aforesaid. Thus all Oblations, whether in Money or Bread, to such or such an Altar, either out of Devotion or custom, made either by the Parishioners or Strangers, are esteemed to be offered nomine Altaragii 
b Gloss. in Matt. Par. Blount's Nomo-Lex, ver. Altaragium. . Under which Notion may be comprehended Oblations, Obventions, and Offerings, which in effect seem to be but as one and the same thing, and that which may be called merely Spiritual, the Oblations being such things Real or Personal as are offered or dedicated to God and his Church, which seem to be included in Obventions; the other Profits consisting in the Tithes Predial or Personal, as also in the Glebe. John ●e Aton in his Gloss upon Cardinal Otho's Constitutions, describing the Proventus ex Altari, says, that they are Offerings either in Bread or in Money, or consisting in other minute Oblations, vulgarly called Altaragium. Const. Otho. cap. Auditu, verb. Proventus, Gloss. ibid. Which word extends itself also to all things pertaining to the Altar, and relating to the Ornaments thereof, which were by the Canons and Constitutions of King Edgar, An. 967. to be Mundissima & apprime Concinnata: Canon. 42. Edgar. Reg. è Veterrimo MS. Codice Saxonico, Colleg. Corp. Christi Cantabrig. But this cannot refer properly to the word Altaragium otherwise than in sensu largo; for by the genuine signification thereof is meant only the Obventions, Oblations, and Profits of the Altar, not the Ornaments thereof.  
(2.) In Cardinal Otho's days, about 170 years since, this Provenue of Altarage was most grossly abused by many of the Clergy insomuch that he made a most severe Canon or Constitution against the Offenders in that kind; for in these days (as he observes in the Canon) these Miserable Priests (for so he there calls them) to advance the profits of their Vicarages out of their ravenous Covetousness, by the excessive gain of their Altarages, would admit none to their Penitential Confessions, unless they first deposited some Money, in pursuance of a precedent Compact (as the Gloss has it) by way of a Simoniacal extortion, far exceeding the allowed and accustomed Altarages or Oblations of the Altar: And therefore, first declaring them not only unworthy of all Ecclesiastical Benefices, but also of the Kingdom of God, did Decree, That the Bishops in their respective dioceses should make a most exact Enquiry touching this horrid abuse, and that all such as were sound guilty thereof, should be removed from and deprived of the Benefices they possessed, and for the future be rendered incapable of all Ecclesiastical Preferments, and wholly suspended from their Function for ever. Constit. Otho. Nè aliquid exigatur pro Sacramentis, fol. 6. verb. Auditu. Notwithstanding which there being then in use and practise another kind of Simoniacal Artifice to advance the excess of Altarages, by Letting them and other Ecclesiastical Revenues and Profits of the Church to Farm, another Canon or Constitution was then also Decreed, inhibiting and forbidding all such Farms of Altarages in any kind for the future: Where John de Aton in his Gloss upon that Canon says, it was Constituted for the prevention of Simony; and there takes the occasion to put the Question, Whether it be lawful to allow a Parochial Chaplain for his stipend the Annual Obventions of Altarage in whole, or in part? the Negative seems (says he) to be in●err'd from the Text of that Canon; but in his own opinion he is of another judgement, because it matters not, whether his Salary be paid in Money or any other Ecclesiastical thing; and concludes, that an Assignment of such Altarages may safely be tolerated; and that the Priest to whom Altarages are due, may appoint his Proctor to collect the same, and being so Collected, may lawfully be assigned him for his Stipend: And although the Canon forbids the Letting to Farm the Altarages, and other profits of the Church, yet the Gloss holds that the Temporal Provenues of an Ecclesiastical Jurisdiction may be sold or let to Farm; but not the Spiritual Right of the Jurisdiction itself. Ibid. Constit. N● Dign. tradantur ad firmam, verb. Ecclesias, & Gloss. ibid.  
(3.) Note, upon Evidence to a Jury, between Brett and Ward, upon the dissolution of a Vicarage in the County of Warnick, which was part of the Priory of Dantry, where the Pope by his Bull gave to the Vicar Minutas Decimas & Altaragium. And it was certified by the Doctors, That Altaragium will pass to the Vicar Tithe-wool, etc. and the usage was showed in Evidence, and the Copy of the Pope's Bull; and the Court would not credit that without seeing the Bull itself: And so the Plaintiff was nonsuit, and the Jury was discharged 
c Brett and Ward's Case▪ Winch▪ Rep. . Bulla, h. e. properly Vesicula aquae superfluens: But in this case a more reverend esteem was had of the Popes Bull. Bulla is also taken for the Boss of a Nail or Bridle: Hinc Bulla pro Sigillo & pro obsignato Diplomate, in primis literis Pontificum plumbeo sigillo notatis. Has literas Bullam vocant, quia plumbea bulla arctentur; quemadmodum apud Romanos bulla erat Ornamentum aureum, quod jungebat vestes: Est enim bulla tumour, & ornamentum illud, hoc Bullae nomen retinuit, quamvis in figuram Cordis esset fabricatum, ut refert Macro. in 1. Satur. quare aliquoties vestis ipsa Bullata Bulla nuncupatur; ita & literal Apost. Bulla plumbi munitae, Bullae nuncupantur. gammer. Extra. Cum tam Divino.  
(4. W. Libels against G. in the Ecclesiastical Court for Tithes of Wool, Wood, a●d Apples, etc. and he shows that he was Vicar there; and that the 8 E. 1. there was a Composition, That the Parson should have the Tithes of Grain and Hay, & praeterea the Vicar should have Altaragium: And for that that those Tithes did not belong to the Vicar, he prayed a Prohibition. And Henden objected, That the Parishioner ought to set forth his Tithe, and not dispute the Title of the Parson or the Vicar; but the Vicar ought to come into the Ecclesiastical Court pro interesse suo: But notwithstanding that, and notwithstanding the Vicar refuses to claim those Tithes, and that always within memory they have been paid to the Parson, yet a Prohibition was granted: And in the end (upon the Composition) power is reserved to the Ordinary, if any doubt or obscurity be in the Composition, to expound or determine it; and if he please, to increase the part of the Vicar; and there was not power of diminution: As by Hutton, It is also usual in such Compositions; and they say, That the word Altaragium shall be expounded according to the use; as if Wood had always been paid to the Vicar by virtue of this word, so it shall continue, otherwise not: And so it had been Ruled in the Exchequer; and upon that precedent it was Ruled accordingly so in this Court: And by them Wood is Minuta decima, as in the case of St. Alban it was Ruled 
d Dr. Wood a●d Gree●wood's Case. Hetl. Rep. .  
(5.) In a Trial at the bar in an Action of Trespass, the Question arising between the Parson and the Vicar, as touching Tithe-Wood, and to whom the same belonged: As to this by the Opinion of the whole Court clearly, the Parson de mero jure aught to have the Tithe-Wood, if the Vicar be not Endowed of the same, 
Mich. 10 Jac. B. R. Reyn●lds vers. Gree●. Bulstr. par. 2.  or claims to have it by Prescription; but without such a Dotation or Prescription the same belongs to the Parson. Another Question was propounded for the Vicar, who entitles himself unto the Tithe-wood by these words [Altaragium] and Minutae Decimae, whether these words will carry the Tithe-Wood unto him or not: As to this, the exposition and true definition of this word [Altaragium] is considerable, and to whom this is due. [Altaragium] as was observed, is that which is due to be served at the Altar. Wil●iams Justice, Altaragium is that only and properly which is offered at the Altar, and Minutae Decimae are the Small Tithes; also the word [Altaragium] will not carry Tithe-Wood: And this is the Question here, Whether the Vicar by this word [Altaragium] hath Title to the Tithe-Wood? Crook Justice, This word Altaragium doth not carry the Tithe-Wood, which are great Tithes, but Minutas Decimas, which are petit small Tithes; Minutae Decimae & Altaragia, the Vicar, as was urged, is to have them by his Composition, and that by these words he is to have Tithe-Wood. Fleming Chief Justice, There is an Usage here laid in the Vicar to have the Tithe-Wood, by reason of these words, Altaragia & Minutae Decimae, the which the Vicar can no ways have, but by Prescription or by such a Usage; and so the same may pass by these words Altaragia & Minutae Decimae, and the Usage had accordingly: Also Sheaves of Corn have passed by Usage to the Vicar, by the words Altaragia & Minutae Decimae, and so it was Adjudged in the Court of Exchequer. The Judges all agreed in this, That by these words Altaragia & Minutae Decimae, by Usage, Tithe-wood may well pass; and so hath the Opinion of all the Civilians been. Fleming Chief Justice, and the rest of the Judges agreed in this, That by Usage, the word Altaragia shall be accounted inter Minutas Decimas. William's Justice, By the word Altaragia Tithe-Wood doth not pass; but if the Vicar have used to have the same, time out of mind, This is good, and shall pass under the words of Minutae Decimae. Fleming Chief Justice, Though the Law be against it, that Tithe-Wood doth not pass by these words, yet by Usage it hath been allowed good, to carry Tithe-Wood by these words, being of small value; and by such Usage Tithe-Wood may pass, though the Law be against it.   

CHAP. XXXII.  
Of Tithes.  

1. What Tithes are; the Original thereof in England; with the Division and Subdivision thereof.  
2. Whether the Quotity be Moral, or only of the Ceremonial or Judicial Law? The Institution of Tithes; the lawfulness thereof under the Gospel; it is sacrilege, Theft, and Robbery to withhold them.  
3. The Common Arguments against the payment of Tithes, Answered.  
4. A Fourfold Division of Tithes under the Levitical Law.  
5. The schoolmen's conceit touching the Division of Tithes in allusion to the Division of the Law of Moses.  
6. Tithes anciently Ecclesiastical are now Temporal Inheritances; several Laws touching Tithes in general.  
7. What the Common Law of England understands by Tithes: The first obstruction thereof by Charles Martel.  
8. The supposed Reason, why Tithes before the Lateran Council might be paid to any Church or any Priest: The original Division of England into Parishes.  
9 The Exact provision anciently, as well before as since the Conquest, made by the Sovereign Kings and Princes of this Realm for the due payment of Tithes.  
10. The Supposition of the parochial Right of Tithes to be settled by a Canon of the Council of Lateran, Contradicted.  
11. Whether a Parson may make a Lease parol of his Tithes.  
12. Tithes discharged by unity of possession.  
13. A Covenant between Parson and Parishioner touching nonpayment of Tithes.  
14. Whether Proof by one Witness in case of Tithes, aught to suffice in the Ecclesiastical Court.  
15. Tithe-Wool, and Rotten Sheep; Tithe-Calves.  
16. Tithe-Headlands; Tithe-Wool; Lamb and Wool included in Samll Tithes.  
17. Tithe-Wool of Sheep depastured in one Parish and sheared in another.  
18. Suit for the Tithe-Grass of a Riding nag.  
19 Modus decimandi touching Tithe-Wool, and Lamb.  
20. Park-Tithes; Buck and do not tithable; what Partridges and Pheasants are not tithable.  
21. Saffron, whether it be Small Tithes; venison not tithable.  
22. Prohibition for not allowing Proof by one Witness.  
23. An Action of the Case lies against a Parson, that takes not away in due time his Tithe-Corn set out.  
24. The Parishioner not obliged to divide the Tithes into Moities, where two persons have portion of Tithes by halves.  
25. A custom of not tithing the odd Sheafs, good.  
26. Whether Tithes shall be paid of the Glebe leased to a Farmer.  
27. Whether Tithes may be Leased or Released without Deed?  
28. A Parson may Sue in the Ecclesiastical Court pro modo Decimandi.  
29. Whether that Court may proceed therein in case the Modus be denied.  
30. In what case the Right of Tithes is triable in the Exchequer.  
31. A Case in Law touching Prescription, and of Tithes of a Park Disparked.  
32. What things are reputed Majores, what Minores Decimae, and how they may vary according to the Circumstances.  
33. Whether Tithes are payable of cattle for the Dairy or the Plough?  
34. Whether a Dean and Chapter be capable de non decimando their Lands?  
35. Touching Tithe-Herbage of young cattle, of Hedge-stuff, of Orchards, and the custom of Hearthy-peny.  
36. Tithe-Fish, Customary Tithe; whether Prohibition or not.  
37. Acorns tithable, if sold; whether pigeons, if spent in the house.  
38. Several Cases touching Discharges of Tithes.  
39 Hay of Headlands, whether tithable?  
40. Prescription for discharge of Tithes upon payment of 10 s. per ann.  
41. A forest in the King's hands is privileged of Tithes, not so in the hands of a Subject: The Right of Tithes between Parson and Vicar, triable in the Ecclesiastical.  
42. Whether Tithe shall be paid for Hedge-boot and Fire-boot?  
43. Touching Tithe of young cattle, of Hedging and Fencing, of the Herbage of Heifers and Horses, of dry-cattels, and of Gardens; how far tithable, or not.  
44. Apples stolen out of the Orchard, not tithable; no Tithes of Pasture of milk-cows grown dry▪ unless kept for Sale.  
45. Composition for Tithes for life; not good without Deed.  
46. Estovers burnt in the house, not Tithable. The hearthpeny good by Prescription.  
47. A Composition for Tithes de anno in annum.  
48. The Modus decimandi is Suable in the Ecclesiastical Court, as well as the Tithe itself.  
49. Prohibition in case of Libel to prove in perpet. rei memo.  
50. Custom of Tithe-Grass Cocks as to both Mathes.  
51. In a Prohibition upon matter at Common Law, and not within the Stat. of 2 E. 6. 13. the Suggestion need not be proved in Six months.  
52. Tithe-Hay of Headlands; custom and Prescription.  
53. Tithe-Hay of Heathlands; also Tithe of pigeons.  
54. Minute Tithes to the Vicar.  
55. Tithes to Parson and Vicar may amount but to one Action.  
56. The Curate may not Prescribe in Tithes against the Parson.  
57 Curates may sue for Pensions in the Ecclesiastical Court.  
58. By the Civil Law, the Parson to have Notice when Tithes set out.  
59 Action on the Case against a Compounder for Tithes Suing in the Ecclesiastical Court.  
60. Modus decimandi by one may hold as to others for a Prohibition.  
61. Composition for one year good without Deed, not if for years.  
62. Tithe-Hasel, Holly, Willow, Whitethorn: Whether the Parishioner shall preserve the parson's Tithe for him.  
63. Testis Singularis not sufficient to prove payment of Tithes in the Ecclesiastical Court.  
64. Composition for Tithes, and a Prohibition thereon.  
65. Tithes taken away by a Stranger after they are set out, the parson's remedy lies at the Common Law.  
66. In what Case no Costs upon failure of Proof of the Suggestion within the Six months.  
67. Modus Decimandi may be Sued for in the Ecclesiastical Court, where if denied, they are to surcease.  
68 Custom in Cornwall touching Tithes of sea-fish.  
69. In what Case an Agreement for Tithes for years may be good without Deed.  
70. In what Court Tithes of Rents in London may be Sued.  
71. A Collector of Tithes cannot licence a Parishioner to carry away his Corn.  
72. Whether Debt lies for triple damages upon Fraudulent setting forth of Tithes.  
73. Tithes, whether they belong to the Parson or the Vicar, cognizable in the ecclesiastical Court, where the Right of Tithes is confessed.  
74. The Ecclesiastical Court not Judges of the Bounds of a Parish.  
75. Modus Decimandi in reference to a Park.  
76. A fraudulent setting out of Tithes, is no setting them out at all.  
77. The Vicar shall have Tithe of Rape-Seed, being within a Prescription, though a new thing in England.  
78. What the word Garba signifies.  
79. Whether Wood in its own nature be great Tithes; and in what case it shall pass by the words de minutis Decimis.  
80. If two Titles of Tithes unite in one person, there need but one Action for them.  
81. A Parson may not set a Lease for years of Tithes per parol only.  
82. If a Parson be disturbed in carrying away his Tithes se● out, his Remedy lies properly in the Ecclesiastical Court.   
(1.) TITHES [dimes, Decimae] probably an abbreviation from the Saxon, Teo●un●, or Tithing, properly Decuria in that Language. Lamb. Expl. of Sax. words, verb. De●uria. That the Apostles and Elders at Jerusalem were competently supplied by the Contributions of the Jewish Proselytes, is very conjecturable in that they sold their possessions, and brought the price thereof and laid it down at the Apostles feet; and such as then planted the Gospel, and labour●● in the Word and Doctrine, had their maintenance by the Contributions of their Converts. Vid. council. Grang. Can. 7, & 8. And St. Cyprian writing to his Church of Carthage, Epist. 33, & 34. to receive Aurelius and Cellerinus, Confessors, saith in Epist. 34. Presbyterii honorem designasse nos il●is jam sciatis, ut & sportulis iisdem cum Presbyteris honorentur, & Divisiones Mensurnas aequatis quantitatibus partiantur, Know you, that we have already designed to them the Dignity of Presbytership, that they might be honoured with such allowances as Presbyters have, and receive equal shares in the Monthly Dividends. So that Sportulae were the allowances, 
Cawdrey's Discourse of Patronage, p. 8.  which in this Infancy of the Gospel the Presbyters had out of the Contributions of the Converts. And the Fratres Sportulantes mentioned by him in Epist. 66. were the Clergy which received such allowance. These Converts (after the Conversion of Constantine the Emperor) many of them being governors and Nobles, settled great and large Demesn-Lands upon those who Converted them; and that (according to Mr. selden conjecture) the first Oratories or places of public Worship, were built in the Lands bestowed on them; which first Oratories were called Cathedrals, Sees, or Seats, from their constant Residence thereon. That the Christian Church even in times of Persecution laid claim to Tithes as due Jure Divino, is partly confessed by Mr. Selden himself, citing some passages in the Ancient Fathers to that purpose. But when the Empire became Christian, than the Christian Clergy did more earnestly press the Donation of Tithes; and in process of time they prevailed, not only by Preaching and Canons, but by the Edicts of Emperors and Kings, to have Tithes given to the Church. And it appears, that the Roman Empire, wherever it did reduce any Conquered country in formam Provinciae, appointed the Farmers of the customs, to collect among other Impositions the Tenths of the Tenants of the Empires; that is, 
abide p. 10.  of all who occupied any Land in the Conquered Province, either as immediate Tenants to the Empire, or as Sub-Tenants under them. The Publicans therefore who collected these Tributes were called Decumani, as Mr. Selden, pag. 39 of his History of Tithes doth observe out of Appian. But whether these Tenths were received by the Senate or Emperors, upon a Civil or Religious account, is not liquid and clear: For the Emperors always till Christianity came in (nay Constantine and other Emperors even after Christianity was received, till Gratian's time, as the Noble and Learned Du-plessy in his Mystery of Iniquity observes out of Zosimen) continued the chief Pontifice or High-Priesthood in their own persons. And as touching us here in England, Dr. Heylin, P. H. Treleyny, in his Treatise touching Tithes, p. 3. saith, Tithes are not given to the Ministers by the People; for Sr. Ed. Coke on Litt. tenors, lib. 1. c. 9 Sect. 73. foe 58. asserteth, That it appears by the Laws and Ordinances of Ancient Kings, and especially of King Alfred, That the first Kings of this Realm had all the Lands of England in Demesn, and Les Grandé manors & Royalties they reserved to themselves, and with the Remnant they for the defence of the Realm enfeoffed the Barons of the Realm with such Jurisdiction as the Court Baron now hath. And at this time, when all the Lands of England were the King Demesns, that Ethelwolph the Second Monarch of the Saxon race (his Father Egbert being the first, which brought the former Heptarchy under one sole Prince) conferred the Tithes of all the Kingdom upon the Church by his Royal Charter. Of which engulf Abbot of Crowland, An. 855. saith, That King Ethelwolph with the consent (gratuito consensu) of his Prelates and Princes, did first enrich the Church of England with the Tithes of all his Lands and Goods. Many other Laws of the Saxon Kings for the payment of Tithes are recited by Mr. Selden, as entirely the Gift of Kings: And so saith King Elred, Nemo auferat à Deo, quod ad Deum pertinet, & Praecessores nostri concesserunt. The whole bishopric Anciently was in a large sense a Paroecia, and the income of it (by Contributions first, and by Tithes also afterwards) was the Common stock of all the Clergy of the diocese; and Mr. Selden asserts it to be the general Opinion of all the Common Lawyers, That before the Lateran Council, under Innocent 3. every man might have given his Tithes to what Church he would (probably within the diocese) because they were not the Propriety as yet of any one Presbyter, but the Common Patrimony of all the Diocesan Clergy. So that Tithes are a Tenth part of all increase Tithable, due to God 
a 〈◊〉 ●0. , and consequently to his Ministers that wait on the Altar. These are divided into Three sorts, 1. Praedial Tithes, arising only either of the Fruits of the Ground, as Corn, Hay, Hemp, and the like; or of the Fruits of Trees and Orchards, as Apples, Pears, and the like. 2. Personal Tithes, arising of the profits that come by the labour and industry of Man, either by Handicrafts, as Carpenters, Masons, and the like; or by Buying, Selling, or Merchandizing. 3. Mixed Tithes, arising partly of the Ground, and partly of the Industry of Man, as of Calves, Lambs, pigs, Milk, Cheese, and the like 
b 〈◊〉 Jac. R● C. B. . No Tithes shall be paid for such things as do not increase and renew year by year, by the Act of God 
c ●o. Gra●●, Rol● 6. . Of Praedial Tithes some are called Majores, vulgarly termed the Great Tithes: others Minores vel Minutae, vulgarly the Small Tithes. The Great, such as Wheat, Rye, Hay, etc. The Small, such as Min●, Annis, Cumin, etc. 
d 〈◊〉 42. . And commonly with us here in England we compute Flax in the number of Small Tithes (which is a Praedial Tithe) as also Wool, Milk, Cheese, Eggs, Chicken of all kinds, Lambs, Honey, Bees-wax, and the like, Vid. Lindw. cap. de Decimis. In Ancient times the Laity were so far from subtracting their Tithes, as is the common practice of these days, that ofttimes they would give more than was due or demanded; and were so Conscientious in the payment thereof, as at their death they usually bequeathed a Soule-Sceat to their Parochial Priest in lieu of any Tithes forgotten; and at their Funerals caused their best Ox or Horse to be led with the corpse, and as a Mortuary or Oblation given to the Priest in recompense of any Tithes, which possibly in their life-time might have been omitted to be paid. But in these latter Ages (not regarding what S. Hierom says) That Fraudare Eccelsiam est Sacrilegium 
e 〈…〉 14. ● 2. , all Artifices imaginable are put in practice to subduct the Tithes; and therefore to enforce the due payment thereof were the Statutes of H. 8. and Ed. 6. made and enacted 
f 〈◊〉 St. 8. 20. 32 ● 8 & 2 Ed .  
2. Covarruvias, with other Canonists and Schoolmen, holds, That by the Moral Law the rate or proportion of Tithes is not necessarily to be the Tenth part of the Fruits; which the more received Opinion holds to be both Erroneous and Mischievous; and that by the Law of God and Nature, no custom deviating from the exact rate and proportion of the Tenth of the Fruits, aught to prevail any longer than by the free and mutual consent of Parson and Parishioner: For which reason it is supposed, That the paying of a halfpenny for a Lamb, or a penny for a Calf, by such as have under Seven in one year, is now become an unreasonable custom, in regard the value of such Lambs and Calves is now raised four times higher, than in Ancient times. This seems far remote from Tithes, the very Quotity whereof seems to be Moral 
g Levit. 27. 30. , rather than Ceremonial or Judicial; and not only allowed or approved, but even commanded by our Saviour himself 
h Matt. 23. 23. & Luke 11. 42. : Yea, by the very Law of Nature (which is the ground of the Moral Law, and long before the Levitical) Tithes appear to be due, in that Abraham paid it to Melchisedec: And God himself (who is the best Interpreter of his own Law) calls the detention of Tithes sacrilege 
i Mal. 3. 8, 9 10. vid. Pro. 3. 9, 10. . And that Command of Christ, affirming that Tithes ought to be paid of all, even to the very Herbs, spoken by him at the period of the Levitical Law, ought not to be restrained only to the Priesthood of Aaron; for it doth now remain in force as to Priests under the Gospel, as that other part of the Moral Law, Thou shalt not steal, the withholding of Tithes being expressly interpreted Theft and Robbery by the Prophet 
k Mal. ibid. . And lest it should be thought a mere Human Interest, or in the power of Man to alienate, God himself hath vouchsafed to take Tithes upon his own account in his minister's behalf. These Tithes could not be merely Ceremonial (as some would have it) for they prefigure nothing, nor are they repealed by any one Text in the Gospel, but reinforced as aforesaid: so that whatever was commanded in the Old Testament, and grounded on the Law of Nature, and being not Repealed in the New, must yet stand in force, as a Duty of the Moral Law. And if it be Objected, That Tithes were not paid in the Primitive times of the Christian Church; the Reason is, not because they were not then due, but because there was not then any such settled Order for things of this or the like nature in the Church.  
(3.) Wherefore all the Common Objections made against the payment of Tithes in the Christian Church may be reduced to one of these Four: (1.) That our Saviour gave no Command to his Apostles to take Tithes, but rather on the contrary said, Freely ye have received, freely give.— Answ. Yet our Saviour says, These things (speaking of Tithes) ought you to have done 
l Matth. 23. 23. & Luke 11. 42. . And says, The workman is worthy of his meat 
m Mat. 10. 10. . And St. Paul says, The Labourer is worthy of his Reward 
n 1 Tim. 5. 18. . Where hath Christ in totidem verbis forbidden sacrilege? wilt thou therefore commit it, because he hath not in terminis terminantibus forbidden it? Thou that abhorrest Idols, dost thou commit sacrilege 
o Rom. 2. 22. ? (2) Tithes were not paid till about three hundred years after Christ, as Tertullian, Origen, and S. Cyprian do testify. Answ. These Fathers do withal acknowledge, that during that time the church's Maintenance was the people's free Contribution; which probably might have continued to this day, had not that Contribution in process of time turned into a Sacrilegious Century by Covetousness, instead of a Commanded Decuma as a Duty Morally enjoined. (3.) That Tithes came first into this Kingdom by the power of the Pope, as by Pope Adrian in the time of Offa King of Mereia, during England's Heptarchy, in An. 786. Answ. Possibly it might be so; what follows thence? does a thing lawful in itself become unlawful, because a Pope enjoins it? what if he had commanded Alms to be given instead of Tithes? must we therefore be neither honest in payment of the one, nor charitable in giving the other, because there was a Command of a Pope in the case? (4.) That AEthelstane, Edmond, Edgar, Canutus, and AEthelwolfe, Kings of England, Ordained the payment of Tithes merely to pacify their Consciences, and thereby to make Atonement for their Blood-guilty Souls.— Answ. Admit it were Historically true, yet the final Cause of any Action, or the End for which a thing is done, altars not that quality that is inherent naturally in the thing: A thing lawful in itself commanded for a wrong End, perverts the Action, not the thing; if a man gives Alms that the Poor may be drunk, though that be no Alms, yet it doth not render Alms as unlawful, nor alter that quality of Charity which is inseparable from Alms.  
(4.) Tithes Anciently were Fourfold, as (1) That which the People paid to the Levites 
p Hierom. sup. Ezek. 14 45. & Num. 18. 26. . (2) That which the Levites thence paid to the Priests 
q Deut. 14. 22. . (3) That which the Jews reserved for expense in their Solemn Feasts, when they went to the Tabernacle or Temple 
r Deut. 14. 23. . (4) A Third year Tenth, which was then laid up for the Levite and the Poor 
s Deut. 14▪ 28. . The first of these is held a Natural, Moral, and Divine Tribute; the second and third Ceremonial; the fourth Judicial. The Jews had also their Theruma, which was not properly Tithe, but a second kind of First-Fruits: There were two kinds hereof, the one called the Great Theruma, the exact quantity whereof was not defined by Moses; but the Ancient Lawyers determined, that it might not be less than the fourtieth, fiftieth, or at least the sixtieth part of the kinds already dressed and prepared, as Wheat fanned, oil and Wine, Corn in the Ear taken from the heap and given to the Priests 
t Hierom. ●ubi sup●. . The other was the Lesser Theruma, which was, that when the former was taken away for the Priests, the rest of the Heap was Tithed for the Levite, the tenth part whereof the Levites gave to the Priests, which was called the Tithe of the Tithe, or the Theruma of the Tithe.  
(5.) Because the Law of Moses hath been divided into Three parts, viz. Moral, Judicial, and Ceremonial, some of the Schoolmen have thence conceived, That Tithes admit the like division, whereof the Moral part was only a necessary Maintenance for the Minister, and therefore natural and perpetual: The Judicial part was the number of Ten, as fit only for the Jews, and therefore positive and remotive: The Ceremonial part was the Mystery contained in this Number of Ten, which being (as they taught) but a shadow only, was vanished and abolished with the Law itself; and thence inferred, that the Quotity or precise number of Ten being taken away by reason of the Ceremony, a competency now only remains for the Minister out of the Tithes: This Conceit hath occasioned no small prejudice to the Church, although it hath no more probability of truth in it, than that whereon it is grounded, viz. That the Number of Ten is a type of Christ, and that the inferior Digits do signify the People. Levi himself paid Tithes to the first Priest we ever read of, that is, he paid them in Abraham, which being urged by the Apostle against the Levitical Ceremonies, argues, that they are more than merely Levitical and Ceremonial; indeed if we consider their assignment to Levi's Tribe, they are such, but not otherwise. The Sabbath and Tithes were both before the Law in their very Numbers respectively 
u Gen. 2. 3. & 14. 20. & 28. 22. Heb. 7. 4. , and were but repeated by Moses under the Law, because they had been approved of God before the Law in the selfsame Numbers. The Sabbath is said to have a Moral and a Ceremonial part: The Moral is perpetual and unalterable, which is, that God should have a Seventh day; the Ceremonial being Typical of our Rest in Heaven is only positive, and not so unalterable, but that it might be (as it is) changed from the Seventh day of the Creation, to the Seventh after our saviour's Resurrection: So Tithes, they also have a Natural and a Positive part; the Natural is permanent and unalterable, which is, that God hath reserved to himself a Tenth of the increase, etc. for the Maintenance of his Ministers; in which sense immediately after the dissolution of the Jews policy, the Christians of the Primitive Church, as soon as they could get any outward form of a Church, and peace from Persecution, received it in the very Quotity: the Positive is, That the Lord annexed those Tithes by Moses to the Priests and Levites for their maintenance, during the dispensation of the Mysteries under the Law, and therefore changed by the Christians in the Primitive Church to the Christian ecclesiastics 
w Dr. Ridley's View. cap. 4. Sect. 7. ; so that how this Quotity can be changed into a Competency, s●●ms neither demonstrable nor warrantable by the Word of God, but that the Quotity ought to remain as a perpetual Right due to God and his Church. And if any shall argue, that Tithes are not to be paid or required in a Protestant Church, because they have been ever so upheld in the Church of Rome; such may as well argue, they ought not to be paid in a Christian Church, because they are paid to Mahometan Princes, for so they are, and that because they were Priests; for every Husbandman is bound to pay for Tribute the Tenth part of all his Corn to the Patriarch for the use of the Prince, the relief of Impotent people, and Widows, and for maintenance of War against the Enemy. Purch. Pilgr. lib. 6. cap. 1. §. 3. p. 803. nu. 10.  
(6.) Tithes, which anciently were merely Ecclesiastical, are now made Temporal Inheritances; therefore are they Assets in the hands of the Heir, the Wife endowed of them, and the Tenant by the courtesy shall hold them 
x Co. 11. ●4. on Lit●. 159. Bulstr. 2. 184. Hob. 250. ●96. Co. 2. 4 & Dod▪ of Advowsons'. . They are not grantable for life, or years, or for a longer term than one year, but by Deed 
y Latch. 176. . They cannot be extinguished by a feoffment of the Land, nor pass by a Devise of Lands, with all profits and commodities thereto belonging; and yet may be exchanged for Temporal Inheritances 
z Co. 2. 13. . Anciently and at the Common Law there were none qualified to receive them, but either an Ecclesiastical person, or a mixed person as the King. They are not extinct by their coming into any hands, but of the Parson himself 
a Dyer 43. . And that which is given in lieu of them is turned into a Spiritual Fee 
b Hob. 42. . It is not paid more than once for one and the same thing in one and the same year, and that only for the neat and clear profit of the thing Tithable 
c Poph. 197. . It must be paid in kind, if there be Corn now where Wood grew before, or Wood planted now where Woodlands formerly were. And the Law allows the Parson a convenient time to remove the Tithe; which circumstance of Time and the convenience thereof is triable by a Jury; and if the Parson exceed the Time, the Parishioner may have his Action against him as a Trespasser ab initio 
d Bulstr. 3. 336. Godb 329. . And some conceive, that the Parishioner is not bound to give the Parson Notice when he doth set forth his Tithe 
e Noy 59 . By the Civil Law the Parishioner ought to give the Parson Notice when the Tithes are set forth; but it hath been Adjudged, that the Common Law doth not so oblige a man 
f Noy's Rep. in Spencer's Case. . But a severance of Nine parts from the Tenth part there must be, for such Severance is so necessary, and in a kind so essential to Tithes, that they are not due, nor is it Tithe within the Statute of 2 Ed. 6. until such Severance be made. Yet the Parson may Grant his Tithes growing upon the Land, before Severance; which ought to be made by the Owner of the Land: for though the property of Tithes set out by the Owner of the Land belongs to the Parson, yet it is otherwise if they be set out by a Stranger 
g Latch. 8. . And in case the Land be not in any Parish, than the King shall have the Tithe thereof by his Prerogative and by the custom of England 
h Hill. 14 Jac. in C●m. Scacc. Colt vers. Glover. Roll. Rep. . But where Lands in themselves Tithable, are not manured or ploughed, specially in prejudice to the Parson, in such case he may notwithstanding Sue the Occupier thereof in the Spiritual Court for the Tithes of that Land 
i Vid. Hugh. Abridg. 689. case. 8. . But if the Parishioner duly sets forth and severs the Tithe in convenient time, and after damage happen to him by the Parsons not taking the same away in like convenient time, in that case the Parishioner may have his Action on the Case against the Parson 
k Dr. Bridgman's Case. Noy. Rep. 31. & Pasch. 20 Jac. B. R. Rot. 286. & Latch. 8.   
(7.) The Common Law of this Realm takes notice of Tithes by the word [Dimes] (Decimae) of the French (Decimes) signifying Tithe, or the Tenth part of all the Annual Fruits, either of the Earth, or of Beasts, or man's labour and industry, due unto God, and consequently to him that is of the Lords Lot, and hath his share by his special appointment: It signifieth also the Tenths of all Spiritual live, yearly given to the Prince, called a perpetual Disme 
l 2 & 3 Ed. 6. c. 15. , which anciently were paid to the Pope, until Pope Vrban gave them to K. Richard the Second, to aid him against Charles the French King, and such others as upheld Clement the Seventh against him as aforesaid 
m Pol. Virg. Hist. Angl. lib. 20. . It signifieth likewise a Tribute levied of the Temporalty 
n Holinsh. in Hen. 2. fo. 111. . But here it is to be understood, as Quota pars omnium bonorum licite quaesitorum, Deo Divina Institutione debita; which though according to the Canon Law is a Tenth of Annual and lawful increase commanded to be paid to the Sons of Levi for their maintenance in consideration of their Ministry; yet at the Common Law it is an Ecclesiastical Inheritance collateral to the Estate of the Land, and of its own nature due only to Ecclesiastical persons by the Ecclesiastical Laws 
o Co. 11. 13. b. . The Practice whereof never met with any considerable interruption in any Age, until Charles Martel's Sacrilegious Infeudations of Tithes, about the year 650. which ushered in such a precedent into the Christian World, as could never to this day grow obsolete and out of use. Notwithstanding from the beginning it was not so, nor did any lay-people pretend to Tithes originally, nor legally till the Statutes of Dissolutions of abbeys made them capable thereof, whereby the Tithes appropriated to such Houses of Religion as were dissolved became a Lay-Fee, and Suable by the Laity in the King's Ecclesiastical Courts.  
(8.) Where in the Books of the Common Law it is Reported, That before the Council of Lateran, every man might give his Tithes to what Church he pleased, and might have bestowed them upon what person he thought best; there it is also asserted for reason, That before that Council there were no Parishes, nor Parish-Priests that could claim them. But by a Canon made in that Council, every man is since compellable to pay his Tithes to the Parson or Vicar of that Parish where the Tithes arise 
p Co. 2. par. 44. ●. E. 3. by 〈…〉 7 E. 3. 5. by Parot. Mich. 15 Jec. it. C. B. Slade and 〈◊〉 Case. Hob. 296. ●cc. High. 〈…〉. . Here may arise a question, Whether there were not Parishes long before any Council at Lateran? For admitting that the Second Lateran Council was held in the year 1120, as S. Tho. Ridley computes it 
q View. par. 3. cap. 4 §. 5. , or that the general Council of Lateran was held in the year 1179, as Sir Simon Degge calculates it 
r Law of Tithes. cap. 2. p. 147. , yet there seems of be a division into Parishes some Centuries of years before either of these: For it is said, That Cities and Countries were divided into several Parishes by an Ordinance of Pope Dionysius about the year 266 
s Ridl. ibid. p●r. 3. cap. 2. Sect. 4. , and from him derived into this and other Realms: Also, that Ecclesiastical persons first in this Kingdom made Divisions of Parishes, as appears by our own Chronicles 
t Regis●●. Eccl. Christ. Cant. Stow. Ridl. ibid. ; and that the first Practice thereof came from Honorius the 4th Archbishop of Canterbury after Augustine, who died in the year 693 
u Ridl. ibid. . And such as have followed the course of Antiquity in this matter, conceive that the original of Parishes had its precedent from the practice of some Ancient Roman Bishops, it being (as some would have it) recorded in the Pontifical of Damasus; but in Anastasius' Bibliothecar, it is found, That when Peter had appointed and ordained Priests, etc. and Cletus had reduced them to a certain number, Pope eucharist assigned to each of them his Parish; and as to the time when those Parishes were assigned by eucharist, it must be about the beginning of the second Century, which was many Centuries before the C. of Lateran, as also was the practice thereof here in England by Honorius, as aforesaid, the truth whereof is approved by Cambden. But Cavendum, etc. saith Marsil in his Book De Red. Eccl. c. 12. heed must be taken as to the word Parish, for it is equivocal, having various acceptations, as sometimes when nothing is named but a Parish, the whole diocese is understood, which notion of the word often occurs in the Councils; in which sense Barbatia spoke a wide word for the Pope in his Tract. de praest. Card. when he said, that in respect of his Holiness, the whole world was but one Parish. Sometimes a Parish is taken for such a part of the diocese, as was assigned to some Priest, arbitrarily sent and maintained by the Bishop; to whom such a Parish paid all their deuce, and he to his Clergy▪ about which time this custom was introduced, that all Church-dues should be at the Bishop's disposal, to be divided into four portions, whereof he should have● part for himself, another for his Clergy, a 3d for the Poor and Strangers, and the 4th to be reserved to the Parishioners for the repairing of Churches; the collection of which deuce was committed to the care of the Chorepise. from which Quadripartite division probably came that custom whereby the Bishop of every diocese might before the C. of Lateran make distribution of the Tithes within his diocese, where he thought convenient to Spiritual persons, for their necessary maintenance 
x Bede, lib. 1. cap. 28. . If the original of a Parish in the 2 former acceptations were a device of the ancient Rom. Bish. & from them derived to other Nations, then probably from the inconveniencies thereof might be the beginning of a Parish, as it is taken for su●h a part of the diocese, as is limited to some Residentiary Incumbent, allowed by the Bishop, and maintained by the Church-dues in his own Right; which consideration of a Parish seems most of all agreeable with those which we now have, and were in use with us before Edgar's days, as appears by the Saxon Laws of that time.  
(9) The Ancient Kings and Sovereign Princes of this Realm, 
Vid. Edgar's Laws, cap. 1.  both before and since the Conquest, have ever made special Provision for the due payment of Tithes unto the Church, and that ever since there was any Church-Government in this Land; witness that Law made before the Conquest by King Aethelstane, That every man should pay his Tithes in manner as Jacob did, that is, of all that God should give him. The like did King Edgar and King Edmund command on pain of Excommunication. And about the Seventh Century Ina King of the westsaxons made a Law, That the Church-Sceat be paid at Martlemass, on pain of paying twelve times as much in case of Refusal: this Church-sceat Fleta interpreteth Church-seed, and therefore calls it Certa mensura bladi Tritici, etc. Others read Church-scet, that is, the Church-shot or Church-due: Also the said King Aethelstane in the Ninth Century made a Law by the Advice of Walfehelme his Archbishop, and his other Bishops, Commanding all his Reeves throughout all his Kingdom in the Lord's name, and of all Saints, that in the first place they pay the Tithe of his own Revenues, as well in Living cattle as the yearly Fruits. Likewise King Edmund at a Synod holden in London, at which Oda and Wul●●tan Archbishops, and many other Bishops were present, made a Law, Commanding all Christian men by their Christianity to pay Tithes, Church-sceat, and Almes-fee; if any refuse to do it, let him be accursed. This Alms-fee or Alms-money was that, which was called the Peterpence; for when Ina the West-Saxon King went in Pilgrimage to Rome, he made it a Law to his Subjects; That every House should pay a penny to the Pope; and this was to be tendered at St. Peters-tide, as appears by Edgar's Law, nu. 4. In the Laws also of King Edgar it was Decreed in the first place, That God's Church should have all her Rights, and that every man should pay his Tithes to the Elder Minister (or Mother-Church) where he heareth the Word, cap. 2. of Edgar's Laws. And in the Eighth Chapter of King Rnutes Laws it is Ordained, That care be taken rightly to pay God's Rights every year, viz. the Plough-Alms fifteen Nights after Easter, the Tithe of young cattle by Whitsuntide, and the Fruits of the Earth by Allhallentide; otherwise, the Kings Reeve, and the Bishop may take the Tenth part whether he will or no, and give it to the Minister whereunto it belongeth. Also by the Laws of Edward the Confessor, nu. 8. & 9 it was Decreed particularly, that Tithes should be duly paid De Garba, Grege Equarum, 
Hoveden, par 2. cap. de Decim. Eccl●s.  Pullis, Vaccis, Vitulis, Caseo, Lac●e, Vellis, Porcellis, Apibus, Bosco, Prato, Aquis, Molendinis, Parcis, Vivariis, Piscariis, Virgultis, Hortis, Negotionibus, in a word, omnibus rebus quas de derit Dominus; which Decree was afterwards ratified by the conqueror. Afterwards King Edward the First at the Petition of the Clergy, established the Articles of the Clergy, which his Son Ed. 2. Confirmed by his Letters Patents under the Great Seal, and by Consent of Parliament, at the Petition of the Clergy in the Ninth year of his Reign. And by the Statute of 1 R. 2. cap. 14. it is Acknowledged, That the Cognizance of Tithes of right doth, and of Ancient time was wont to pertain to the Spiritual Court. Also the Cistercians, 
15 Ed. 3. 5 H. 4. 11.  who had purchased Bulls from the Pope to be discharged of Tithes, in the Second year of H. 4. were by Act of Parliament after reduced to the state they were in before. And in the Fifth year of H. 4. it was Ordered, That such as held Lands belonging to any Friers-Aliens, should pay all manner of Tithes to the Parsons and Vicars of the Parishes wherein the same were, notwithstanding their being seized into the King's hands or any Prohibition to the contrary: For before the dissolution of Monasteries, etc. by King H. 8. Laymen were not capable thereof, nor indeed after the Dissolution, notwithstanding the Statute of 27 H. 8. c. 20. could the People be well brought to pay their Tithes to the Lay-Purchasers thereof, not qualified to Sue for the same, until the Statute of 32 H. 8. c. 7. enabled them to Convent the Refusers before the Ordinary or other competent Judge, according to the Ecclesiastical Laws, without the Reserve of any cognizance for the Temporal Judge therein, otherwise than as to what refers to the Inheritance or Freehold of such Tithes, or in case of disseisin thereof; which was not only ratified and confirmed by a subsequent Statute made in the time of Edward the Sixth, but it was also then Enacted, That the Tithes should be paid as the Usage or custom had been within forty years' next before, and that under certain penalties and forfeitures in case of detention or substraction (and of triple damages in some cases) the party so subtracting to be prosecuted in the Spiritual Court according to the King's Ecclesiastical Laws.  
(10.) Sir Simon Degge in his late useful Treatise, entitled The parson's Counsellor, par. 2. or Law of Tithes, cap. 2. discovers a vulgar Error touching the Original Settlement of the Parochial Right of Tithes: 
10 H. 7. 1●▪ 43 E. 3. 5. Dr. & Stu●●. c. 55. Co. 2. 44. b. Dyer 84. 〈…〉  For whereas it is frequently said in the Books of the Common Law, That before the General Council of Lateran every one was at liberty to give his Tithes to what Spiritual Ecclesiastical or Religious person he pleased, and that the Parochial Right thereof was settled by the said Council; he says, there is not any Canon of that Council to any such purpose, 
Seld. Hist. Decim. 231. Co. 2. par. Inst. 641.  whereby the Parochial right of Tithes was settled: Nor could it then be, for that the said Council was in An. 1179. but the Parochial Right of Tithes was not settled till the year 1200. and then not by any Canon, but by a Decretal Epistle of Pope Innocent the Third, a Brief whereof he there inserts out of Mr. Selden and Sir Ed. Coke. If this were an Error in them, it was so also in Lindwood, c. locat. & conduct. verb. portion. But possibly not such an Error in either as is conceived, for whether the Canon for the settling of Parochial Right of Tithes, made in the Council of Lions, 1274. were an Original Decree, or only a Confirmation of some former Canon to the same effect or not, clear it is, that the said Decretal Epistle of P. Innocent 3. obliged only the Province of Canterbury, to whose Archbishop it was directed: Lindw. c. nuper Abbates, de Decim. And in the Second Lareran Council, holden An. 1120. (being nigh 60 years before that abovesaid) it was Decreed by the said Innocent 3. That the Religious persons, viz. the Cistertians, Hospitallers, templars, 
Sir Tho. Ridley's View of, etc. par. 3. c. 4. Sect. 5.  and those of St. John's of Jerusalem (which by the Pope's Paschal. and Adrian were exempted from payment of Tithes) should pay the same unto the Parochial Incumbents; whereby a Parochial Right of Tithes is settled by a Lateran Council.  
(11.) At the Common Law it seems a Parson cannot make a Lrase Parol of his Tithes, 
Lease of Tithes per parol.  but may discharge them per parol; for in Bellam's Case against Belthrop it was Ruled by Doderidge, Jones, and Whitlock Justices, That where the Defendant in a Trover and Conversion of certain Loads of Fetches, justified under the Lord Clare by a Demise per parol for Tithes of Grain for one year made in April, that the Lease was not good, but altogether void; but the Parson may discharge the Parishioner of Tithes per parol, or Lease the Rectory consisting of Glebe and Tithes per parol for years 
a Mich. 2 Car. Rot. 179. Bellamy verse. Balthrop. Latch. Rep. .  
(12.) In Skelton's Case against the Lady airy it was said that it was Adjudged Mich. 34 & 35 Eliz. That a perpetual union of the Parsonage, and the Land charged, is a sufficient discharge of the Tithes, 
Tithes, where discharged by unity of Possession.  and a Prescription may be well enough to be discharged of the payment of Tithes, as it appears by a Case put in the Archbishop of Canterbury's Case, Coke lib. 2. G. Crook Counsel è contra conceived that a perpetual Unity was no perpetual discharge, and said there was no judgement given in the Case cited before; he also cited 10 H. 7, or 6. where the manner of Tithing is set down; he also cited the Bishop of Winchester's Case, Coke lib. 2. also the Prior of D. to be Resolved in 40 Eliz. That a Copyholder may Prescribe to be discharged of Tithes by pleading, That he was always Tenant by Copy to a Spiritual Corporation: and he said, That it was Adjudged in Sheddington's Case, That if a man Prescribe to be discharged of payment of Tithes by reason of payment of another kind of Tithe, that this is not good 
b Skelton & the Lady Airies Case. Lanes Rep. .  
(13.) The Parson of D. Covenanted with one of his Parishioners that he should pay no Tithes, for which the Parishione●r Covenanteth to pay to the Parson a certain Annual Sum of money, and afterwards the Tithes not being paid, 
A Parson Covenants, that his Parishioner shall pay no Tithe.  the Parson sued him in the Ecclesiastical Court, and the other prayed a Prohibition: And it was agreed, That if no Interest of Tithes pass, but a bare Covenant, than the party who is sued for the Tithes hath no remedy, but a Writ of Covenant: And the better opinion of the Court in this Case was, That this was a bare Covenant, and that no Interest in the Tithes pass 
c Pasch. 16 Jac. B. R. Fulcher vers. Griffin. in the Additions to Poph. Rep. .  
(14.) In Warner's Case against Barrett in the Ecclesiastical Court, it was said by Richardson, That before the Stat. of Ed. 6. the proper Suit for Tithes was there, and if they allow not one Witness to prove payment, a Prohibition shall be granted. And he put Morris and Eaton's Case in the Bishop of Winchester's Case; where it was Ruled, if the Spiritual Court will not allow that Plea, which is good in our Law, a Prohibition lies, as in case of Tithes 
d Warner against Barret. Herl. Rep. Tithe-Wool and Rotten-sheep. .  
(15.) It was moved for a Prohibition; because a Parson had Libelled against a Parishioner for Tithe-wool of Rotten-sheep, which he ought not to have, because he shall have Tithe for the same thing at Shearing-time afterwards; as where Tithe is paid for the Cuttin●s of Grass, it shall not be afterwards paid for the After-math. It seemed otherwise to Doderidge and Jones, because it is for the same thing there, but here the Parson hath no recompense for the Wool. And Jones said, That if the Parishioner sell Sheep, the Parson shall have allowance of the Tithes thereof after the shearing: and upon this point a Prohibition was denied. Secondly, there is a custom, that if a Parishioner hath three Calves, he shall pay a penny for the Tithe thereof; if seven Calves, than one Calf. 
Tithe-Calves.  The Parson sued for one Calf, because the Parishioner had three one year and four another, and for that he had no Tithe for the first three. And thereupon a Prohibition was granted 
a Anonymus. Latch. Rep. .  
(16.) In Huddleston and Hills Case it was said, That if a man Sue in the Ecclesiastical Court for Tithes of Headlands, 
Headland.  the Defendant may have a Prohibition; but he ought then to suggest, That they are but small Headlands, and that there is a custom of Discharge in consideration that he paid Tithes in kind of Meadows. 
Tithe-Wool.  And in this case Williams said, That if a man keep Sheep in one Parish until shearing time, and then sell them into another Parish; in this case the Vendee shall pay the Tithe-wool to the Parish where they were depastured in the greater part of the time of the growing of the Wool 
b Huddleston. and Hills C, Lane● Rep, Lamb 〈◊〉 Wool included in Small Tithes. . And in the Case of one Nicholas and W. Ward, it was agreed, That Tithe Lamb and Wool was included within Small Tithes 
c 〈…〉 .  
(17.) In Banco Regis a Prohibition was prayed, because a Parson had Libelled in the Ecclesiastical Court for the Tenth part of a Bargain of Sheep, which had depastured in the Parish from Michaelmass to Lady-day: and the party surmised, 
Tithe Sheep.  that he would pay a Tenth of the Wool of them, according to the custom of the Parish. But the Prohibition was denied; for as Doderidge Justice said, By this way the Parson shall be defrauded of all, if he shall not have his recompense, for now the Sheep are gone to another Parish, and he cannot have any Wool at this time, because it was not the time of shearing. Nota, per Whitlock, de animalibus inutilibus, the Parson shall have the Tenth part of the Bargain for Depasturing, as Horses, Oxen, etc. But de animalibus Vtilibus, he shall have the Tithe in specie, as Cows▪ Sheep, etc. 
d Michal. 2 Car. B R. Poph. Rep. .  
(18.) The Rector of the Church of D. Libelled in the Ecclesiastical Court for the Tithes of a Riding-Nagg, where the Case was, 
Tithes for a Riding nag.  That a man let his Land, reserving the running of a Horse for some time, when he had occasion to use him there: The Desendant shown this matter in the Court by his Council, and prayed a Prohibition, and abetts that for the same Land in which the Horse went he paid Tithes. And by the Court, nigh London, a man will take 100 or 200 Horses to Grass; now he shall pay Tithes for them, otherwise the Parson shall be defeated. But in this Case, if the Desendant allege and prove that it was a nag for labour, and not for profit, a Prohibition lies 
e Trin. 15 Jac. B. R. La●●king and Wild's Case. Poph. Rep. .  
(19) In the Case of Bowry against Wallington, where W. had Libelled in the Ecclesiastical Court against B. for the Tithes of Wool and Lamb, and B. upon suggestion of a Modus Decimandi obtained a Prohibition, and had an Attachment, and declared upon it, 
Tithes of Wool and Lamb.  and are at issue upon the Modus▪ which is found for the Defendant, and Consultation granted; whereupon judgement was given in the Ecclesiastical Court against Bowry, upon which B. appealed, and prayed a new Prohibition, and Noy moved for a Consultation; because that a Prohibition and an Attachment upon it are but one Suit, for the Contempt of the party in bringing his Suit in another Court, and translating this from the King's Court, and when it is once Tried for the Desendant, the same thing shall not be Tried again. Note, That in this Case upon the Statute of 50 E. 3. 4. it was agreed by the Court, That a Prohibition awarded, and afterwards Consultation granted, 
Where several Prohibitions may be granted in the same Case, and where not.  that upon the same Libel no Prohibition shall be granted again; but if there be an Appeal in this Case, than a Prohibition may be granted, but with these differences, (1) if he that appeals pray the prohibition; there he shall not have it; for then Suits shall be deferred in infinitium in the Ecclesiastical Courts. (2) if the Prohibition and Consultation were upon on the body of the matter, and the substance of it, for otherwise he shall be put many times to try the same matter 
f Pasch. 1 Car. B. R. B●wry vers. Wa●●ington in the Additions to Poph. Rep. .  
(20.) The Lord Richardo was seized of Hadley Park, and of all the tithes thereof, and paid for the Tithes but one Buck in the Summer, and a do in the Winter for 30 years past. The Park was disparked and turned into arable Land, and the Parson would not receive this Fee-Buck and do, but would have Tithe-Corn, and thereupon sued in the Ecclesiastical Court, 
Tithes of Park  and he brought a Prohibition. And Catlin said, That ●e need not pay other Tithes, but Buck and do▪ for although they be not Tithable, yet may they be paid by Composition, 
Buck and do. not Tithable. What Partridges and Pheasants not Tithable.  and he may not take them, but they ar● to be delivered to him: And in like manner Partridges and Pheasants in a Garden are not Tithable, yet may they be paid in lieu of Tithes, and shall be brought dead to the Parson; and although there be no Park, yet may he give a Buck out of another Park, and perhaps it may be made a Park again 
g Tri●. 31 Eliz. post Winter and Lovedaies' Case. Owen's Rep. .  
(21.) The Case was, A Church in which there had been a Parson and Vicar time out of mind, and the Parson used to have the Great Tithes, and the Vicar the Small, and for the space of forty years last passed, it was proved that the Parson had Tithes paid him out of a Field of twenty acres of Corn, and now the Field is sowed with Saffron, and the Vicar sued for the Tithes of Saffron in the Ecclesiastical Court, and the Parson had a Prohibition. Coke, I conceive the Parson shall have the Tithes, 
Tithe of Saffron.  for by the Statute of 2 H. 6. it is Enacted, That Tithes shall be paid as hath been used the last forty years, and this hath been always Tithable to the Parson, and although the ground be otherwise employed, yet the Parson shall have the Tithes: And so was it in Norfolk in the case of a Park, where the Parson prescribed Pro modo Decimandi to be paid 3 ●. 4 d. for all Tithes arising out of the said Park, and although the Park was afterwards converted to Arable, yet no other Tithes shall be paid. Popham, It hath been adjudged otherwise in W●oth's Case in the Exchequer. But the Law is clearly as hath been said; and the difference is, 
Tithes of a Park. Venison not Tithable.  when the Prescription is to pay so much money for all Tithes, or when the Prescription is to pay a shoulder of every Buck, or a do at Christmas; for there if the Park be disparked Tithes shall be paid, for Tithes are not due for Venison, and therefore they are not Tithes in specie. 
Saffron is small Tithes.  And I conceive, that Tithes of Saffron-heads shall be comprehended under Small Tithes; and although the Tithes of this Field have been paid to the Parson, yet it being converted to another use, whereof no gross Tithes do come, the Vicar shall have the Tithes: And so if arable Land be converted into an Orchard, the Vicar shall have Tithes of the Apples; and so if the Orchard be changed to Arable, the Parson shall have Tithes. Quod Fenner concessit 
h Pasch. 38 Eliz. B. R. The Case of the Dean and Chapter of Norwich▪ Owen's Rep. .  
(22.) In one Hawkin's Case, Libel was in the Ecclesiastical Court for Tithes for Lambs for seven years: And there he proved payment by one Witness, and a Prohibition was granted for Non-allowance of that Proof 
i Warner against Barret. Hetl. Rep. .  
(23.) On the Stat. of 2 Ed. 6. c. 13. for setting out of Tithes, the Case was this: Corn was set out ●or Tithes, and the Owner of the Land took the Corn Damage pheasant▪ but in the Declaration it is not shown how long the Corn remained on the ground. 
Tithe Corn.  And by the Court, it is not good, inasmuch as it doth not appear that the Owner of the Land had any damage at all, for he doth not show how long the Corn remained on the ground. And the usual course in such cases is, if Tithe be set out, and the Parson take it not away in due time, the party shall have an Action on the Case. By the Court, a man cannot distrain Shocks of Corn, but he may distrain a Stack damage pheasant. But in this case it is not shown how long it remained on the ground, and therefore it doth not appear that he was damnified. And so after the Tithe is clearly set out, the Parson may by the Statute have an Action of Trespass, if any take them away; but if only a mere Stranger set out the Tithe, that settles no property in the Parson, so as that he cannot have any Action for the taking thereof away 
a Hill. 1 Car. 1. B. R. Stilman verse. Chanor. Latch. Rep. .  
(24.) It seemed clear to Noy, that if Two persons have portions of Tithes by halves in one Parish, the Stat. of Ed. 6. that appoints Tithes to be set out, doth not in that case oblige the Parishioner to divide the Tithes by halves, and to set out their parts singly; but the Parishioner ought only to set out the Tenth, insomuch that if the Tithe be of one Lamb, the Parishioner cannot divide it 
b Case Stilman verse. Cremer. . And it hath been adjudged, that the Parishioner is not bound to divide the Tithe into Moities, but the Parsons shall divide it between themselves 
c Dict. Cas. in alia Nar●at. Latch. fo. 228. .  
(25.) Noy surmised against a Libel for Tithe-Sheaves, that the Parishioners are at the charges to bind the Corn in Sheaves, and for the better dividing thereof they use to make it up into Sheaves: and when it is made into Shocks, they put thereof into a Stack for the Tithes. And for that the Parishioners have been at this pains, they have used to be discharged of Tithes for the odd Sheaves, 
No Tithe of odd Sheaves.  when they will not make a Stack. Adjudged a good custom: and a Prohibition was granted, because the Parishioners therein do more than of Common right they are obliged unto 
d Anonymus. Latch. Rep. .  
(26.) The Case touching Tithe of glebeland, Reported (as aforesaid) by Leonard to be between style and Miller, is the same with that Reported by Owen to be between style and Miles, misprinted: But the Case was this; style Parson did suggest, That the Land was parcel of the Glebe of the Parsonage, 
Tithe of Glebe.  and that the said style did let the said Glebe, being twenty four acres to Miles for years, rendering thirteen shillings four pence rend: and in a Prohibit on the Case was, if Tithes were to be paid. And Wray said, That although it was parcel of the Glebe, yet when it was Leased out Tithes ought to be paid without question: But there may be a doubt where the Rent is reserved to the true value of the Land; but here the Rent is of small value, wherefore Tithes shall be paid also. And the Reservation of the Rent was Pro omnibus exactionibus & demandis; yet the Justices took no regard of these words. But Godfrey said, that those words would discharge him: But Wray on the contrary, for that this Tithe is not issuing out of the Land, but is a thing collateral; and if a Parson do Release to his Parishioners all demands in the Land, yet Tithes are not thereby Released, for such general words will not extend to such a Special matter 
e Case style against Miles. Owen's Rep. .  
(27. A. Parson of B. in consideration of 120 l. paid by C. one of his Parishioners, did accord and agree with him, That he and his Assigns should be discharged of Tithes during the time that he should be Parson. C. made a Lease to D.— A. did Libel against him for Tithes, and D. prayed a Prohibition upon the said Contract. And if this were sufficient matter for a Prohibition, was the question, because it was by word only, and without writing, which amounts only to a Cause of Action upon a Promise for C. but no Action for his Lessees: neither can this amount to a Release of Tithes; for as Tithes cannot be Leased without Deed, so they cannot be Released or discharged without Deed. Gawdy Justice, Tithes cannot be discharged without Deed, unless by way of Contract for a Sum of money, and he cited the 21 H. 6. 43. Fenner, for that year in which the Discharge was made, it was good by way of Discharge without Deed, because the Parson for that year had as it were an Interest, but such Discharge can have no continuance for another year, for default of a Deed: and so a Promise being no Discharge, it is no cause of a Prohibition. But Gawdy held as afore. And the Court (Popham succeeding Wray Chief Justice, upon his death) held, that the Agreement being by parol, was not good: and Fenner then said, That without Writing the Agreement could not be good between the parties, but for one year. And the Court awarded a Consultation. But upon search made no judgement was entered in the Roll 
f Pasch. 5 Eliz. B. R. Woodward against Nelson. .  
(28.) Note, That in Layton's Case it was said by the Court, 
Owen's Rep.  That a Parson may sue pro modo Decimandi in the Ecclesiastical Court. As if a Parishioner will not put his Tithes into Cocks, 
Modus Decimand.  when he ought by the custom so to do. But then the Suit ought to be Special for not putting it in Cocks, and not generally for not setting forth the Tithe 
g Layton's Case. Latch. Rep. .  
(29.) It was likewise agreed by the Court in Clark's Case against Pro●se, that the Ecclesiastical Court may take cognizance of a Modus Decimandi: The Case was this; Clark a Parson sued Prowse, one of his Parishioners per mod. 
M●dus Decima●d.  Decimandi in the Ecclesiastical Court, and alleged a custom in his Bill (so called in the Report) to have two shillings of the pound for every House and Shop in the Town: and upon that Suit the Defendant there answered to the custom, Quod non credit esse vera. And so to have here a Prohibition it was alleged, That the Defendant was a Butcher, that set open Stall in the Market only to fell Flesh there, and that he had not any other Shop or House. And it was agreed by the Court, That a Parson may sue per mod. Decimandi in the Ecclesiastical Court: But if it be denied, the Chief Justice as also Jones said, That in that case they could proceed no further; because they cannot try matters of Prescription there, and if they proceed, a Prohibition: But in this Case the Prohibition was denied, because Doderidge said, That for the Reasons supra, power is given to the Spiritual Court to examine that matter; because it is not a denial of the Prescription, but it ought to be by Allegation 
b Clark verse. Prowse. Latch. Rep. .  
(30.) It was said in Catesby's Case, That if a Copyholder of the King's manor pretendeth Prescription for a Modus Decimandi against the Parson, 
Modus Decimandi.  the Right of Tithes shall be tried in the Exchequer, and a Prohibition was granted to the Ecclesiastical Court in this Case 
c Pasch. 7 Jac. in the Exchequer, Catesbie's Case. Lano's Rep. .  
(31.) In Pool's Case against Reynold, Prescription to have dear out of a Park in discharge of all Tithes, and after the Park is disparked: P. brought a Prohibition against R. the Surmise was, That de temps d'ont memory, etc. within the Parish of C. there was a Rectory appropriate, and the chapel of S. annexed therewith. Et una Vicaria perpetua ejusdem Ecclesiae de C. 
Prescription. Tithe of a 〈◊〉.  dotat. And whereas the said P. ●or six years' last passed had occupied one House, 100 acres of Land, 20 of Meadow, 40 of Pasture, called Shute-Park within the said Parish of C. which said Tenements were anciently a Park, and now disparked, etc. and converted into the said House, 100 acres, etc. And that all the Occupiers of the said Park de temps d'ont memory, until the Disparking had paid to the Vicar there, one Buck of the Summer-season, and one do of the Winter-season, etc. in discharge of all Tithes of the said Park, until the Disparking; and after the disparking in discharge of all Tithes of the said Tenements, which they had accepted for all the time aforesaid, until the Disparking and after, or otherwise agreed with the Vicar for them: and traversed this Prescription, and found for the Plaintiff. In Arrest of judgement it was moved by Henden, That this Prescription extends to the Land quatenus it is a Park, and that being destroyed, the Prescription is gone, etc. and if it be to be paid or delivered out of the Park, than it is determined. vid. Lutterel's Case, Coke lib. 4. Also this Prescription is against the benefit of the Church, and shall not be enlarged; and the Wood which is sold out of the Park, 
Prescription. Tithe of H●●. ground.  shall not be discharged 14 Jac. Conyer's Case in C. B. Prescription, That the Parson had two acres of Meadow given in discharge of all Tithes of Hay-ground, viz. of all the Meadow in the Parish, if any Arable Land be converted into Meadow, it extends not to discharge that. vid. Lutterel's Case, Coke lib. 4. fo. 8●. That an Alteration in prejudice to the Parson determines the Prescription. vid. Terringham's Case, lib. 4. He which hath Common purchased part of the Land, all is extinct, for it is his own Act: but vide the principal Case in that of Lutterel adjudged, That building of new Mills in the same place, and converting of Fulling-Mills into Corn-Mills, 
Tithe of Mill●●  altar not the Prescription: And he cited a Cause which was in this Court argued at bar, and afterwards at Bench, between Cooper and Andrews, Mich. 10 Jac. Rot. 1023. for the Park of Cowhurst. Vid. 32 E. 1. Fitz. Avowry 240. 5 E. 2. Fitz. Annuity 44. 20 E. 4. 14. 14 E. 4. 4. But this Case was adjudged for the Plaintiff, Quod stet Prohibitio: and that which is by the name of Park is for the Land, and is annexed to the Land by the name of Park; if the Prescription had been to pay a Buck or a do out of the Park, than it would alter the Case: But it is general, and had been paid also after the Park disparked. And the Case of Cooper and Andrews, was a shoulder of every third Deer that was killed in the Park, and two shillings in money, and that Case was never Adjudged 
d Mich. 10 Jac. C. B. Ro●. 64● Pool verse. Reynold. Hu●●. Rep. .  
(32.) V brought Trespass against T. Clerk, Vicar of A. for taking Bona & Catalla, and count for the taking of two Carectac. glaci, Anglicè Wood: And upon Not guilty pleaded, the Jury gave this Special Verdict, viz. 
Tithe Wood, What th●●gs are Small● Tithes, and what Great.  for the moiety of a Load of Wood, Si videbitur Curiae quod Decimae glaci ne sunt Minutae Decimae, than the Defendant Not guilty; but Si sunt Minutae Decimae, than he is Guilty. This Case was argued at bar by Bridgman and Henden sergeants: And the Court Vnement agreed, That for aught that here appears, this Verdict being found without any Circumstance, that this Wood shall be taken to be Minutae Decimae. It was agreed by Henden, That if it had been found Wood growing in a Garden, then Minutae Decimae. And it was agreed by the Court, That it might have been so found, that it should be Majores Decimae, and Praedial; as if all the profits of the Parsonage consist of such Tithes. And so of other things, which in their own nature are Minutae, may become Majores, if all the profit of the Parish consist therein: As in some Countries, a great part of the Land within the Parish is Hemp, or Lime, or H●ps; there they are Great Tithes, and so it may be of Wool and Lambs. Pasch. 3 Jac. B. R. in Beddingfield's Case, Farmer to the Dean and Chapter of Norwich, who had the Parsonage Impropriate, and had used to have Tithes of Grain and Hay, and the Vicar had the Small Tithes: 
Tithe-Saffron.  And a Field of 40 Acres was planted with Saffron: and it was Adjudged, That the Tithes thereof belong to the Vicar. There was a Case in this Court, as it was vouched by Henden, 
Tithe-Hops.  3 Jac. between Potman a Knight and another: And the Question was for Hops in Kent, and Adjudged that they were great Tithes; but as for Hops in Orchards or Gardens, these were Resolved to belong to the Vicar ●s small Tithes. 
Tithe-W●●ld.  There was a Case in this Court for Tithe of wield, which is used for Dying, and that was in Kent, and it was sown with the Corn, and after the Corn is reaped, the next year without any other manurance, the said Land brings forth and produces wield: And that was a Special Verdict, whether the Vicar shall have the Tithe of it, or the Parson; but one of the parties died before any judgement. 
Tithe. Tobacco.  And if Tobacco be planted here, yet the Tithes thereof are Minutae Decimae: And all these new things, viz. Saffron, Hops, wield, etc. if it doth not appear by material Circumstances to the contrary, shall be taken as Minutae Decimae: And so this Case was Adjudged for the Defendant 
e Hill. 21 Jac. rot. 705. C. B. V●ed●ll verse. 〈◊〉. Hutt. Rep. .  
(33.) In the Case of a Prohibition, in case of a Libel in the Ecclesiastical Court for the Tithes of cattles; the Plaintiff alleged that those cattle, of which Tithes were demanded, are for his Dairy, and for the Plough; and Winch being only present said, That the Parson shall not have Tithes of such cattle; but if he breed up cattle to sell it is otherwise. Secondly, the Plaintiff in the Prohibition alleged, That time beyond memory the Parishioners had paid a hal●●●●or the Tithe of a Calf, and a penny for a Cow; and that upon a day limited they use to bring this to the Church, and to pay this to the Vicar; and now the Vicar had Libelled in the Ecclesiastical Court against them, to compel them to bring it home to his hous●: And Winch said, That this is no occasion of a Prohibition, for they agree in the M●dus, but vary in the place of payment, and this is not matter of substance, and for that reason no Prohibition will lie 
f Trin. 20 Jac. C. B. post Case W●●gift verse. Sr. Fran. Barrington. W●●ch. Rep. .  
(34. B. brought a Prohibition against C. and alleged, that the Dean and Chapter of D. was seized of the manor, and the Defendant being vicar sued in the Ecclesiastical Court to have Tithes, and shown, that time beyond Memory, etc. they had held that Discharged of Tithes for them and their Tenants, and that they let that to the Plaintiff. And it was moved by Henden sergeant, That the Dean and Chapter are a Body politic and Temporal, which are not capable of this Prescription in non Decimando, Coke 2. the Bishop of Winchester's Case. Hobart said, That the Dean and Chapter are a Body Spiritual, and are annexed to the Bishop throughout all England; and if the Bishop is capable of that, as it is plain he is, than the Dean and Chapter is also capable of that, which was granted by Hutton: but Winch doubted, for he said, That hemay be a layman, and for that the Plaintiff ought to aver, That he is a Spiritual person: Hutton confessed, That the Dean may be a layman, as was the Dean of Durham by special licence and Dispensation of the King; but that is rare, and a Special Case, and is not common, and general, and therefore not to be brought as an Example, which was also granted by Hobart Chief Justice, and upon that day was given over to the Defendant to show cause wherefore the Prohibition shall not be granted 
g Pas●. ●● Jac. C. B. Brigg's Case. Win●l-Rep. .  
(35. A. Libelled against W. in the Ecclesiastical Court for the Herb●ge-Tithe of young cattle, s●il. for a penny for every one. And Hitcham moved for a Prohibition: and said, that he ought not to have Tithes, 
Tithe of cattles.  if they are young Beasts brought up for the Cart or Plough. And so it hath been Adjudged: As it a Parson prescribe to have Tithes for Hedgingstuff, he cannot, because that preserves the Land out of which he had Tithes; 
Tithe. Hedgstuff.  and then a Parson Libels for Tithes of an Orchard, for that it was a young Orchard; and the custom of the place was, 
Tithe-Orchard.  to pay 4 d. for an Orchard. Hitcham said, There is not any such difference between old and new Orchards, for i● the custom be that he shall pay 4 d. for every Orchard, it will reach to the new Orchard. And then he Libels for a hearthpeny, for the Wood burnt in his house. Hutten said, The hearthpeny is more doubtful; for it is a custom in the North parts to give an hearthpeny for Estovers burnt; 
Tithe-Hearthpeny.  for which he prescribes to be free of every thing which comes to the Fire. And in some parts by the custom they had Pasturage for the Tenth Beast, or the Tenth part of the Gains, which is Barren for the time. But he and Yeluerton, who only were present, That no Tithes are due for them without custom. Hitcham, They also will have Tithes for a thing before it comes to perfection, which would be Tithable afterwards: But I agree, if he fells them before they come to perfection, than the Parson shall have Tithes But by Hutton and Yeluerton, there may be a custom to have every year a penny for them. Sed adjournatur, etc. 
h Pas●●. 4 Car. C. B. Woolmerston's Case. H●●l. Rep. .  
(36. A. Libels in the Ecclesiastical Court for Tithes of Fis●, which is due merely by custom; and the Defendant pleads, That time out of mind, etc. they have paid no Tithes of that. And Henden sergeant moved for a Prohibition. 
Tithe. Fish.  And Richardson Replied and said, It is merely a Customary Tithe, as Rabbits, etc. whereof no Tithes are due by the Law of the Land, and a Prohibition shall not be granted. But all the other Justices affirmed, That there shall be a Prohibition granted, because that the custom ought to be tried at the Common Law, and they make a difference between Modus De●imandi, which is also Customary, and where there is a Tithe precedent due, and that Modus converts it into another duty: There no Prohibition shall be granted; but it shall be Tried in the Ecclesiastical Court, whether there be such a Modus Decimandi or not; and that Case in the custom makes the Duty itself. But if he alleged the Modus to be for two pence, and the Parson for three pence, it shall be tried by the Common Law. And they said, That so was the opinion in the grand Case of Lead-Ore. And Hutton said, That so it was determined in the Case of one Berry, for Tithes of Lime-kil●s, which are as Minerals, and are not Tithable by the Common Law. But when the custom is tried, than they in the Ecclesiastical Court may proceed upon it 
i Pasch. 3 Car. ●. B. Case of Tithes in Hetley's Rep. .  
(37.) A Parson libels in the Ecclesiastical Court for Tithes of pigeons and Acorns: And the Defendant prayed a Prohibition; because the pigeons were spent in his own house, and the Acorns dropped from the Tree, and his hogs eat them. And it was said by the Court, Acorns are Tithable 11 Rep. 49. but then they ought to be gathered and also sold. And a Prohibition was clearly granted 
k Tithes of pigeons and Acorns. Ant● Wilco●k's Cas. in ●et●. Rep. .  
(38. B. Farmer of a portion of Tithes for five years, without Deed, Demises a Farm which he had in the same Parish to F. for years; and afterwards he libels against him in the Ecclesiastical Court for the Tithe of that Farm. And F. said, he was not Farmer. And Henden preys a Prohibition for that, (1) That the Lease for Tithes is without Deed: but he may be Discharged of his own Tithes without Deed, 
Discharge of Tithes.  as was Adjudged before in this Court. (2.) The Lessee is not to pay Tithes for the Farm; for although the Parson makes a Lease of the Gl●be for years, he paid Tithes: But if a layman who had the Impropriation Leases the Gl●be, the Lessee does not pay Tithes. But the Court denied the Case of the Lease of the Parsonage Impropriate; and said, That the Case of Perkins and hind was Adjudged to the contrary in that very point. And also if he purchase other Lands in the Parish (which are discharged of Tithes in his hands) and he Demises them, yet the Lessee pays him Tithes. And the Opinion of the Court was, If one contract with the Parson for Discharge of the Tithes of his Lands for years, and Demises his Lands to another; yet he shall not have Tithes, but the Discharge runs with the landlord. But if one take a Lease of his Tithes by Deed, and makes a Demise of his Land, he hath Tithes of the Lessee. And the Direction was, That the Lessee of the Farm ought to show expressly in the Ecclesiastical Court, that the Farmer had not a Lease by Deed: and a Prohibition was granted. And it shall be Admitted, That the words of the Libel being Firmator, Conductor, & Occupator was good 
l Booth against Franklin. Hetl. Rep. .  
(39 W. against S. in a Prohibition, in which S. Libels for Tithes of Hay. And W. suggests for a Prohibition, That he used to pay the Tithe for Hay inspecie, 
Tith●● Hay of Headlands.  in consideration whereof he used to be Discharged of all Doles, greenskips, and Headlands, not exceeding the breadth that a Plough or a Team might turn about the Lands. And Henden moved for a Consultation; for that it is said, about, etc. that is, circa terras arabiles, when the truth is, there are Skips at the side of Lands, as broad as the Lands themselves; and then he would be discharged of them also, whereas it ought to be at the end of the Headlands only. Richardson said, That in arable Lands enclosed, Pasture is at the end and at the sides, which is mowed, and yet discharged of Tithes. But the Court in respect there was a Prohibition granted, said, That he ought to join Issue or demur upon the Declaration 
m Mich. 3 Car. ●. B. Wood against Symons. Hetl. Rep. .  
(40.) The Earl of D. had a manor in the Parish of C. which extended to L. where there is a chapel of Ease; and the Vicar of C. Libels for Tithes in the Ecclesiastical Court, against one of the Tenants of the manor. And Henden moved for a Prohibition, for that that the Earl prescribed, That he and all his Tenants should be acquitted of all the Tithes of Land within L. paying 10 s. per ann. to the Chaplain of L. And he said, that such a Prescription is good, as it was Adjudged in bowls Case. And a Prohibition was granted 
n The Vicar of Chesham's Case. Hetl. Rep. .  
(41.) In Comin's Case it was agreed by the Court, That a Forest in the hands of a Subject shall pay Tithes; and it was agreed, that in the hands of the King it is privileged. 
Tithe of Forests.  And by Henden, Davenport, and Atthowe sergeants, It is only his personal privilege, which extends to the Lessee of the King, but not to the Feossee. And it was agreed, That where the right of Tithes comes in question between a Parson and the Vicar, who are both Ecclesiastical persons, it shall be Tried by the Ecclesiastical Court. But Richardson said, the Books make a doubt, where it is between the Servant of the Vicar and the Parson. But it seemed to him to be all one 
o Comin's O. Hetl. Rep. .  
(42. N. and D. Plaintiffs against H. Vicar of S. in a Prohibition: the 〈◊〉 was for Wood employed in Hedging, and for firewood: Issue was joined, That there was in the Parish a great quantity of Land enclosed; 
Tithe Hedg-boot and Fire-boot.  and that they used to take Wood for Hedge-boot and Fire-boot, and they were discharged of Tithes, in consideration that he paid Tithes in kind of Hay and Corn, etc. And it was found for the Defendant. Crawley moved, That a Consultation cannot be granted, for that that they ought to be acquitted of Tithes for those of Common Right, and for that although Prescription was alleged, it is nothing to the purpose. Atthowe, For firewood it was proved that Tithes always was paid. Richardson, there is no doubt but the discharge also aught to be by custom, and to be grounded upon Modus Decimandi. Yeluerton and Crook otherwise, that it is not upon Modus Decimandi, but by the Common Law; and the Reason is, for that that when a man is Owner of Arable Land, and he pay Tithe-Milk and Corn, and for that they are discharged of things consumed in the House, which are to make Masters and Servants fit to manure the Land, etc. Richardson said, It is seen that it shall always be Discharged, in consideration it is alleged, how a small Consideration will serve. Crook, It is not Modus Decimandi, but the Discharge is for that, that the Parson hath by them a benefit, for he had by them better means of Tithes. Hutton, If a man had a House of Husbandry, and Demises all the Land but the House, he shall pay Tithes for them absumpt in the House. Crook, Not. No profit is made by them to the party; but the Parson had a benefit by him. And a day was given to search precedents 
p Pasch. 4 Car. C. B. Norton and ●u●ke●'s Cas. Hetl. Rep. .  
(43.) A Parson Libels for the Tithes of young cattle preserved for the Cart, and the Question was, whether in such Cases a custom ought to be surmised. 
Tithe of young cattle. . And Crook, F. N. B. is, That of right Tithes shall not be paid for such things. Richardson, In all such Cases the Parson ought not to have Tithes, if there be not a custom alleged, by which the Parson had any thing, or recompense, or by which his other Tithe is better. And he said, That he had searched the Books, and the Book of Entries; and there is not any such Case, but some surmise is made, as for that, that he had Tithe of Corn in specie where the Land is enclosed; and so the Corn better. Hutton, It ought to be Tried, whether the thing in his nature be tithable, or any Usage to discharge it or not, as the cattle are in their nature Tithable, than you cannot prohibit it; but the Usage ought to be surmised so: And it may be Law, as the Parson had better Tithes. Harvey, 
Tithes of ●edging and Fencing. Tithes of Heifers-●erbage.  If a Libel be for Tithes of Hedging and Fencing, there a surmise ought to be made to discharge that. But when it is for Tithes of Heifers, which in apparency ought to be spared by the Law of the Land, otherwise it is, etc. Richardson, for the Herbage of those Heifers Tithe is due by the Ecclesiastical Law; and we never can take Tithe of them without express custom or other recompense. Harvey, there was a Case, 16 Jac. C. B. A Pa●son sues for the Herbage of Horses, 
Tithes of Herbage for Horses.  and the Parishioner alleged, That he kept them for the carrying of Coals; there he ought to surmise something to be Discharged: and if he allege, That he kept them in his House for serving of Husbandry, the other may allege, That he kept them to carry Coals, and the Allegation is Traversable. Richardson, 
Tithes of Herbage for a Riding Horse.  There was a Case, where the Question was, A Husbandman keeps a Horse to ride up and down about his business, Whether he shall pay Tithe for the Herbage of him, and a Prohibition was in that Case granted; but a surmise ought to be made. Crook said, That in the King's Bench he had twenty times seen a Prohibition granted in such Cases, 
Tithe of dry cattle.  without any surmise. And a Libel is for dry cattle; if it be alleged, That they are kept for the Plough, the other may allege, That he keeps them to sell, without that, that he keeps them for the Plough. And before there is any profit of them, it is not reason that they should be Tithable, and the Parson shall have the benefit for them after. And for Hedging it is Lex terrae, that he shall pay no Tithes. Richardson, It is Lex terrae ne consuetudo loci facit legem terrae. And if he had used to pay Tithes for the cattle or for Hedging, 
Tithes of Hedging.  he ought not to pay that still: If an ignorant man will pay Tithes for those things, and after upon a Libel a Prohibition is granted; if the other does not allege a custom, the Prohibition shall stand: or if they allege a custom, which is ●ound against him, no Consultation shall be granted. 
●arden-Tithes.  And for a Garden-peny, the reason of that is apparent: for otherwise Tithes shall be paid in specie: And so for hearthpeny, if he had always paid it, it ought to be paid. Hutton, If a man had an Ancient Garden for which he paid a penny, and that is enlarged, of that enlargement Tithes ought to be paid in specie 
q Pasch 4 Car. C. B. Thornill's Cas. Hetl. Rep. .  
(44. A. Libels against B. in the Ecclesiastical Court for the Tithes of two Pecks of Apples, and for Feeding the cattle upon the ground. The Defendant for the Apples answered, That there were Two pecks only growing in his Orchard, 
Tithe-Apples.  and that they were stolen, and never came to his use; and for the cattle, That they were Ancient Milch-Beasts, 
Tithe-herbage of cattle.  and that they growing old were dry: And that for a month they depastured with other Heifers, and that after they put them in a Meadow, out of which the Hay was carried; and afterwards he fed them with Hay in his House. Atthowe, Because that the Answer was not admitted, prayed a Prohibition. Hutton, If Apples are upon the Trees, and taken by a Stranger, shall the Parson be hindered of his Tithe? Yeluerton, If I suffer one to pull my Apples the Parson shall have Tithes; but if they be taken by persons not known, the Parson shall not have Tithes of them; which was granted: For they are not Tithable before plucking; and for that, if he suffer them to hang so long by negligence, after the time, that they are imbelized, by Yeluerton he shall pay Tithes. For the second matter it was Agreed by the Court, and for the depasturing in the Meadow, and for the Hay with which they were fed afterwards, Tithe shall not be paid, because that the Parson had Tithes of them before. But if the question be for the Tithes when they went with the other Heifers, 
No Tithe of Pasture of milk-cows grown dry, unless kept for sale.  by Crook, that is no cause to excuse the Tithe. Harvey, If I have Ten milk-cows, which I purpose to reserve for Calves, and they are dry, the Parson shall not have Tithe for their Pasture; but if I sell them, by which it appears I kept them for Fatting, there Tithes shall be paid. And Hutton agreed, That although there was so small a time, that they went with the Heifers, yet Tithes shall be paid for their pasture during that time 
r Case upon a Prohibition in Hetley's Rep. post Cas. Regis vers. Archbish. of Canterbury. .  
(45.) In Walsingham and Stone's Case it was said by Hutton, That a Parishioner compounding for his Tithes for his life was not good without Deed. And it was said by Yeluerton, that the use in the King's Bench is, 
Composition for Tithes.  That if a Defendant in a Prohibition dies, his Executors may proceed in the Ecclesiastical Court; and it may be a Rule for the Judges in that Court to proceed also. And then the Plaintiff may, if he will, have a new Prohibition against the Executors, etc.  
(46.) In Norton's Case finch Recorder said, de Communi jure for Estovers burnt in an House Tithes ought not to be paid; by the Common Law there was not any Tithes paid for Wood: And although the Statute of 25 E. 3. gives a Prohibition for Timber, yet underwoods were discharged of Tithes. 
Tithe-Wood.  Vid. Dr & Stud. 171. It is express that Estovers are not Tithable, because they are not renewing every year, and it is parcel of the Inheritance, for to destroy all the Underwoods' is Waste, etc. Dawley's Case was Resolved for the Wild of Sussex: and Mich. 13 Jac. B. R. in the Case of Porter and Dyke for the Wild of Kent of the same Prescription, Resolved to be good; and so is the Common Experience, that a whole County may Prescribe so. And the reason is, for that by the Common Law it was not due; but by the Constitution of Winchelsey, Lindwood 104. it was Ordained to be paid; for then the Prelates imputed a great Pestilence that then was, for the negligence of paying Tithes, and appointed Tithes of wood And the Commons were desirous to have the Statute of Sylva, etc. otherwise explained than the Clergy declares it; for they say, that they ought not to pay Tithes of any Wood that is of the growth of ten years. Hutton, Wood is Tithable in their nature, and then there may be a custom to discharge them. And the Case of Hearthpeny cannot be answered; for if he Sues for the penny, a Prohibition shall not be granted, quod concessum fuit per Crook & Yeluerton. But of things not Tithable, Tithes of them cannot be sued without alleging a custom. Crook, It is known that Hearthpeny is good by Prescription: This Case is when there is not Land belonging to the House, 
Hearthpeny, what▪  so that the Parson is not answered for his Tithes another way. But when there are Ten Servants kept for the maintaining it, then by the Law of the Land it appears that Tithes ought not to be paid; although custom had been alleged it is nothing to the purpose, As if a custom be alleged to pay 4 d. for every Acre in discharge of Tithes, and the Verdict find 3 d. no Consultation shall be granted. Hutton, the Herbage of Barren cattle is Tithable, because there is a custom which discharges those that are for the Cart. 
Tithe herbage of cattle.  And he said, That the custom only makes that Legem terrae. And he cited Dr. Grauut's Case: He Libels for Tithes of a House, and the party brought a Prohibition, and alleged Modum Decimandi, etc. And it was alleged in Arrest of judgement, that Houses were not Tithable de Communi jure, and yet a Consultation was granted, etc. 
s Trin. 4 Car. C. B. Norton's Case. He●l. Rep. .  
(47.) A Case between Stone and Walsingham having been formerly in the Court touching Tithes, the Case was again moved in Court, which was that they agreed the anno in annum so long as the one should be Parson, and the other Parishioner, Si ambabus partibus tam diu placuerit, he should retain his Tithes for 6 s. 8 d. per An. And Richardson Justice said, and it was not denied, That the Suggestion is naught for the uncertainty of it; and a Prohibition cannot be granted upon that. For the words de ann● in annum make an Estate for a year;▪ and the next words make an Estate for Life; and the last words, but an Estate at Will: and what shall be Traversed here? It appears, that for Years it is good without Deed, but not for life; and if it be but at Will, when the other demands his Tithes, the Will is determined. But at another day the Suggestion was made, That he made several Agreements with his Parishioner, that he pay 6 s. 8 d. for his Tithes for four years. And then a Prohibition was granted. Harvey, sufficit, If an Agreement be proved for these four years 
t Stone against Wallingham. Hetl. Rep▪ .  
(48.) S●●t moved for a Prohibition, That whereas he had twenty Acres of Wheat, and had set out the Tenth part for Tithe, the Defendant pretending that there was a custom of Tithing, that the Owner should have fifty four Sheaves, and the Parson five, and so he sued for Tithes, for that there was no such custom: And the Court said, That the Modus decimandi must be sued for as well in the Ecclesiastical Court as for the Tithe itself: And if it be allowed between the parties, they shall proceed there; but if the custom be denied, it must be tried at the Common Law: For if it be found for a custom, Consultation must be granted; if not, than the Prohibition is to stand 
u Scot against Wall. Hetl. Rep. .  
(49.) Napper against Steward; the Parson had a Prohibition against divers of his Parishioners that Libelled in the Ecclesiastical Court, to make Proof by Witness of divers manner of Tithing in perpetuam rei memoriam 
w Napper against Steward. Hetl. Rep. .  
(50.) A Prohibition for H. against E. Farmer of the Rectory of S. and prescribed, That all Tenants and Occupiers of Meadow had used to cut the Grass, and to straw it abroad called Tetting, and then gathered into windrows, and then put it into Grass-Co●ks in equal parts without any fraud, to set out the Tenth-Cock great and small to the Parson, 
Custom of Tithe Gra●●-Cocks.  in full satisfaction as well of the first as of the latter Math: Upon Traverse of the custom it was ●ound for the Plaintiff; and exception was taken, That the custom was void, because it imports no more than what every Owner ought to do, and so no recompense for the two Maths: But the Court gave judgement ●or the Plaintiff; for dimes naturally are but the Tenth of the Revenue of any Ground, and not of any labour or Industry: Where it may be divided as in Gross, it may, though not in Corn; and in divers places they s●t out the Tenth acre of Wood standing, and so of Grass: And the Jury having found his Form of Tithing there, it is sufficient: and the like judgement upon the like custom was in the King's Bench. Pasch. 2 Jac. Rot. 191, or 192. inter Hall & Symonds 
r Hil. 4 Car. C. B. ●ide against Ellis. Hetl. Rep. .  
(51.) In Johnson's Case, if a Prohibition be granted upon matter at Common Law, as upon a Personal Agreement between Parson and Parishioner for his Tithes, and not upon matter within the Stat. of 2 E. 6. 13. the Suggestion shall not be Proved within the Six months as the Statute limits; and as it is Agreed by the whole Court 
y Johnson's Case. Hetl. Rep. .  
(52.) The Defendant here in the Prohibition Libels for Tithes of Hay in the Ecclesiastical Court. The Plaintiff suggests, that the Hay was growing upon Greenskips, Deals, and Headlands, and that there is a custom, that the Parishioners in a Meadow there used to make the Tithe-Hay for the Parson, and in consideration of that to be discharged of all Tithes of Hay growing ut supra; 
Tithe-Hay.  and also that for the Hay of the Land, no Tithe ought to be paid of such Hay, but does not aver, that that Hay was growing upon Greenskips, etc. And an Exception was taken by Henden: (1.) That the Exception is double; the custom, and the Common Law: And by Yeluerton, That is not material; for you may have twenty Suggestions to maintain the Suggestion of the Court: but Richardson was against that, that a Suggestion might be double here, for the Suggestion of the Common Law is a Surplusage: As in Farmer and Norwich's Case here lately, One Prescribes to be discharged of Tithes, where the Law discharged him, and so was discharged by the Common Law. Second Exception is, That he doth not apply the custom to himself in the Suggestion; for he that lays the custom, does not show that the Hay grew upon the Skips, upon which a Plough might turn itself: and for this cause by the whole Court the Suggestion is naught. And here Richardson moved, how that Two should join in a Prohibition. Yeluerton, If they are joined in the Libel, they may join in the Prohibition, and that is the common practice of the King's Bench. Richardson, The wrong to one in the Ecclesiastical Court by the Suit, cannot be a wrong to the other. Hutton, They may join in the Writ, but they ought to sever in the Declaration, to which Harvey agreed. Yeluerton, The Prohibition is the Suit of the King, and he joins tant. as in a Writ. Richardson, But it is as the Suit of the party is, and if any join here, I think good cause of a Consultation. It is against the profit of the Court to suffer many to join. And it is usual in the Case of customs of a Parish in debate to order proceed in the two Prohibitions, and that to bind all the Parish and Parson. And it was said by them all, That the Consideration of making Hay is a good Discharge, because it is more than they are bound to do 
z Hil. 3 Car. & Pasc. 4 Car. Rot. 454. Wood and C●r●verner's Case ag. Symonds. Hetl. Rep. .  
(53. F. sued V. for Tithes of Hay, which was upon Land that was Heath-ground, and for Tithes of pigeons. And by Richardson, If it was mere Waste-ground, and yield nothing, it is excused by the Statute of payment of Tithes for seven years: But if Sheep were kept upon it, or if it yield any Profit, which yield Tithes, than Tithe ought to be paid: 
Tithe-Hay on Heath. 222  As the Case in Dyer. And for the pigeons, which were consumed in the House of the Owner, he said, and for Fish in a Pond, coneys, Deer, it is clear that no Tithes of them ought to be paid of Right; wherefore then of pigeons? quod nemo dedixit. And a day was given to show cause wherefore a Prohibition should not be granted. And the Court agreed, That it was Felony to take pigeons out of a Dove-house. And afterwards a Prohibition was granted, but principally, That the pigeons were spent by the Owner. But by Henden, They shall be Tithable, if they be sold 
a flower ag●. Vaug●an. Hetl. Rep. .  
(54. P. the Vicar of Eton in the County of Oxon, Sues C. the Parson Impropriate in the Ecclesiastical Court in Oxford pro Minutis Decimis. C. sues a Prohibition against the Vicar upon a surmise of a Prescription. P. comes and pleads the first Endowment made An. Dom. 1310. by which the Minute Tithes were allotted to the Vicar: C. demurs; and Adjudged for the Plaintiff, for the Parson cannot Prescribe against the first Endowment 
b Tr. 2 Jac. ● B. R. rot. 520. Brings vers. Child. Noy. Rep. .  
(55.) In Debt upon the Stat. of 2 E. 6. for not setting out of Tithes, the Plaintiff declares, That the Defendant was seized of the Lands in question within that Parish, and that the Tithes did belong to the Parson and Vicar (viz.) Two parts to the Parson, and the Third part to the Vicar, 
F●r not setting ●ut of Tithes.  or their Farmers, payable in specie for 40 years' last passed, that the Plaintiff was Farmer proprietary of the Tithes to the Parson and Vicar spectant, and shows the value of the Tithes due, and demands the triple value; the ●●●ndant pleads Ni●il debet per patr. and it was found for the 〈◊〉. It was now moved in Arrest of judgement, because the Plaintiff ought to have brought two Actions, as the Parson and the Vicar ought for their several parts: But Resolved, that the Action is well brought; for it is a Personal and one entire Debt for one wrong 
c Pasch. 3 Jac. B. R. Sir Rich. Champion verse. Rob. Hill. Noy's Rep. .  
(56.) Bott sues a Prohibition against Sir Edward B. and suggests That the Defendant is Parson Impropriate of W. and that time out of mind there hath been a Curate of an Incumbent by the appointment of the said Rector, who administered the Sacraments, etc. And that the custom of that Parish time out of, etc. was, that the Curate should have 〈◊〉 Tenths renewing within that Parish, 
Prescription.  except Decimas gra●●●●m, which were paid to the Parson, and that every Parishioner who had so paid the Tenths to the Curate, was discharged against the Parson. And that notwithstanding that, etc. Sir Edward B. had sued him etc. And now he prays a Prohibition, and had it; but after that surmise was adjudged insufficient, without Argument by the Court, and a Consultation granted, for such Curate cannot Prescribe against his Master, that may remove him at his pleasure: And for that reason it was not a good Prescription for the Parishioners 
d Bott ag. Sr. Ed. Brabaton. Noy's Rep. .  
(57) Goodwin being Vicar sues in the Ecclesiastical Court the Dean and Chapter of Wells, b●ing Parson of a Church, for a Pension, and they pray a prohibition and it was denied: For that Pension is a Spiritual thing, for which the Vicar may Sue in the Spiritual Court. Note, that they entitle themselves to that Parsonage by a Grant of H. 8. who had it by 31 H. 8. of Dissolutions 
e Goodwin against the Dean and Chapter of Well● Noy's Rep. Tithes set out, No●ice. .  
(58.) It was said by Hutton in Spencer's Case, That by the Civil Law the Parishioner ought to give notice to the Parson when the Tithes are set forth. But it was adjudged, That the Common Law doth not so oblige a man 
f Spencer's Case. Noy's Rep. .  
(59 B. by his Deed Compounds for Tithes, and after Sues for them in the Ecclesiastical Court, by Popham and Gawdy, That an Action upon the Case lies. 
Composition.  Vid. E. 4. 13 Mich. 4 Jac. The Lady Waterhouse was sued for the Tithes of Trees, whereof none were due, etc. there an Action upon the Case does not lie; for the Parson or person may well be ignorant of what things are due, otherwise he Sues against his own knowledge 
g Brey a●. Partridge. Noy's Rep. .  
(60.) To have a Prohibition the surmise was, That the Inhabitants of D. of which he is an Inhabitant, have paid un. mod. decimand. etc. And they were at Issue; and he proved only, that he himself had paid it, 
Mod●s De●●mand.  and yet well: And no Consultation; for every particular is included in the general, and proved by it. And it appears sufficient matter for a Prohibition, and to oust a Spiritual Court of their Cognizance. (2) Agreed, that where the Statute appoints Proof of the surmise to be by Two, it is sufficient if Two affirm that they have known it to be so, or that the Common Fame is so 
h Mich. 15 Jac. C. B. rot. 725. Fo●d ag. Weedham. Noy's Rep. .  
(61.) Upon a surmise by a Parishioner, That he had Compounded with the Parson for his Tithes for one year, and it may be without Deed; 
Composition.  by Brownlowe, That a Prohibition shall be awarded, and that there are divers precedents in this Court. But otherwise, if it be for more years, it is not good without Deed 
i Mich. 16 Jac. C. B. rot. 541. Green ag. Dickenson. Proof of surmise for a Prohibition. . And in Skinner's Case, it was Ruled by the Court upon a surmise to have a Prohibition, That if it be proved before one of the Judges within the Six months, although that it be not Recorded till after the Six months, yet it is well enough; and good also, although that the Proof be in the Vacation. [Pasch. 43 Eliz. B. R. Pottenger against Johnson 
k Skinner's Case. Noys Rep. .  
(62.) A Parson prefers his Bill for Tithes of Hast, Holly, Willow, Whitethorn, etc. a Prohibition was moved, because they were of 21 years' growth and more: 
Tithe-Hasle, Holly, Willow, White-thorn.  And by the common custom in Hampshire, they were used for Timber to build and repair their Ploughs, and cited Pasch. 14 Jac. C. B. Rot. 1918. Cufflye's Case against the Parson for Holly, Willows, and Maple; and a Prohibition was awarded. And Hubbard said, That in Cumberland Beech was used for Timber, and the use of the country for scarcity of other Trees will alter the Case 
l Pinder ag. Spencer. Noy's Rep. .  
The Parson Libels for Tithes of Hay, etc. The Parson said, that the custom of the Parish hath been, That he that hath Corn within the Parish ought to reap the Corn, and also the Tithes of the Parson, 
Whether Parishioner shall preserve the parson's Tithe?  and to make them into Cocks, and to preserve them until the Parson shall carry them away. And a Prohibition was granted; for although that the Parishioners ought the jure to reap the Corn, as it was agreed Trin. 28 Eliz. B. R. yet he is not bound to guard the Tithes of the Parson, etc. But if the Parson does not carry them away in convenient time, an Action on the Case lies against him. Pasch. 20 Jac. B. R. Rot. 286. there such an Action was brought by Wiseman against the Rector of Landen in Essex, for not accepting, etc. of the Tithes of Cheese 
m Dr. Bridgman's Case. Noys Rep. .  
(63. B. brought an Action upon the Case, That P. sued for Tithes, and recovered, because there was nisi Testis singularis to prove the payment, when in truth he had paid it before Two, but now one was dead; 
Testis singularis to prove payment of Tithes.  and by the Court Resolved, That an Action doth not lie, because the Cause was merely Spiritual: And for that it differs from 8 E. 4. 13. for there the Composition was a Temporal Contract, although it was for Tithes 
n Bray vers. Partridge. Noys Rep. .  
(64. G. moves for a Prohibition, and Surmizes that the Parishioners had Compounded with the Parson for the Tithes; but yet the due Tithes were severed and exposed, and the Parson takes and carries them away; 
Composition.  the Parishioner meets him and takes them from him. And upon that the Parson sues in the Ecclesiastical Court: And a Prohibition was awarded 
o Brooks Case in Noy's Rep. .  
(65. W. Sues P. in the Ecclesiastical Court for not setting out the Tithes of two Acres; P. prays a Prohibition, because he had set out the Tithes of one Acre in specie, and that a party unknown had taken them; and for the other he suggests a Modus Decimandi for 2 s. 
Tithes set out.  6 d. And upon that Issue is joined; and the Witnesses said, That for a long time, as they heard say, the Occupiers of that Farm, whereof that Acre, etc. had used to pay annually to the Parson three shillings for all Tithes; and agreed by the Court, (1) As to the first, Quod Prohibitio stet, for after the Tithes are severed, if a Stranger takes them away, the Parson hath his Remedy against him at Common Law, and shall not sue the Parishioner in the Spiritual Court. (2) It was agreed, That a Proof (by hearsay) was good enough to maintain the surmise within the Statute of 2 Ed. 6. But as to the other Acre, Popham held, That the Modus Decimandi is not well proved; but Fenner and Yeluerton the contrary: For by that appears, the Parson is not to have Tithes in specie, and for that had not any cause to Sue for them in the Spiritual Court 
p Webb against Petts. Noys Rep. .  
(66. W. Sues P. in the Ecclesiastical Court for Tithes of a Dove-house. P. upon suggestion had a Prohibition; but he did not prove his Suggestion within the Sixth month. 
Tithes of pigeons.  W. takes issue upon the suggestion, and it is found against him; and yet he prays Costs by the Statute of 2 Ed. 6. for failure of Proof within the Six months. But by the Court adjudged, that he shall not have it; for-●he hath surceased his time, to take advantage of that, and he can never have a Consultation. Frgo, He shall not have double Costs. Read the words of the Statute 
q Warlington ●●rs. P●rry. Noy. Rep. .  
(67.) Parson prefers his Bill for Tithes of Corn, and alleges, that time out of mind, etc. in that Parish they have used to allot the T●nth-Shock; whereupon the Parishioner suggests, That the Parishioners, and all those who have Estates, etc. have used only to set out the Tenth-sheaf for Tithes, and had a Prohibition. The Parson prays a Consultation; but it was denied. And Resolved by the Court, 
Medus Decimandi.  That the Parson might Sue for a Modus Decimandi in the Ecclesiastical Court, 2 R. 3. 3. a. But if the Parishioner denies that, they ought to surcease, and a Prohibition lies, and that shall be tried at Common Law 
u Steward's Case in Noy's Rep. .  
(68 A. Libels in the Ecclesiastical Court for the Tithes of Pilchards taken in the Sea. And now the party had a Prohibition; upon a surmise that the custom there is, 
Tithes of sea-fish.  That the fisherboat, hath one moiety of the Fish, and the Fishermen the other moiety: And that the Owner hath used to pay the Tenth of his moiety in discharge of all, etc. And it was held by the Court to be a good surmise; for by the Common Law he cannot have the Tithes of Fishes taken in the Sea, because it is not within any Parish; and then when the Parson, by the custom, aught to have the Tithes of them, he ought to take them according to the custom. And that the Tenth of the moiety may be a good discharge of the whole. And the parties went to issue upon the custom in Cornwall 
w Holland vers. Heale. Noys Rep. .  
(69.) By the Court (Popham being absent) it is clear, That an Agreement betwixt the Parson and one of the Parishioners, that he shall have his own Tithes for years, it is good enough without Deed, but otherwise, if it had been for life. And it is a better way to pled that as an Agreement, and not as a Lease 
x Small's Case. Noys Rep. .  
(70.) A Prohibition for a Suit in the Ecclesiastical Court, for Tithes of Rent in London. It was held by the Court, That by 33 H. 8. cap. 12. the Suit ought to be before the Major of London by complaint in Writing, and not by word of mouth only, in nature of a Monstrans de droit, declaring all the Title. And if the Suit be in the Ecclesiastical Court for Tithes in London, that Court may grant a Prohibition; and yet that Court hath not power to meddle with them. (2) It was Resolved, That a Reservation by a Lessee for life, who Leases for years to A. is not sufficient to bind him in Reversion, to pay Tithes according to that rate. (3) That a Rent for half a year, and afterwards for another half year, is a yearly Rent within the meaning of the Decree: And note, as the same was last let, is not intended last before the Decree, but before the Demand of the Tithes 
y Dr. Meadhouse verse. Dr. Taylor. Noy. Rep. Collector of Tithes. .  
(71.) It was found upon a Special Verdict, That the Parson of the Parish makes A. Collector of Tithes, and that A. had licenced a Parishioner to carry away his Corn without setting ●orth of Tithes. By the Court clearly, that licence is void, vid. 5 E. 3. 63. Plow. 104. That a Collector of Rents cannot make an Acquittance and discharge them. And a Consultation was awarded 
z Brickend●●e verse. Denwood. Noys Rep. .  
(72.) Baron and Feme Lessees of a Parsonage, etc. The Parishioner sets forth the Tithes fraudulently, and presently takes them away again, as it appears upon the Evidence. And the Husband only brought the Action upon 2 Ed. 6. for the triple damages. 
Fraudulent setting out of Tithes.  And it was Resolved, That Debt lies for triple damages upon such a fraudulent setting forth of Tithes, although that the clause of triple damages speaks nothing of Fraud. But (2) it was Resolved, That the Husband and Wife ought to have joined in the Action; because it is not a thing in possession. And if the Husband dies, the Wife shall have the damages, and not the Executor of the Husband 
a Hil. 7 Jac. B. R. Ford verse. Pomroy. Noy's Rep. .  
(73.) A Prohibition was prayed upon a surmise, That the Tithes, for which the Suit was, belonged to the Vicar, and not to the Parson: 
Tithes, whether the Parsons or the Vicars.  By the Court, That a Consultation shall be granted; for the Right of Tithes is confessed. And whether they belong to the Parson or the Vicar, that is merely Spiritual. And that so it was Ruled in one Bushel's Case, the Parson of Pancras; and in one Milbray's Case it was Adjudged accordingly 
b Randall verse. Knowls. Noys Rep. .  
(74.) By the Court, That a Prohibition shall not be granted upon a bare surmise, that he is sued for Tithes by the Parson of D. of Lands in the parish of S. unless it appears in the Pleading in the Spiritual Court: For they there shall not be Judges of the bounds of the Parish. Vid. 5 H. 5. 10. 22 E. 4. 24. 
c Philip's ag. Slack, ibid. .  
(75.) A Prohibition was prayed upon a Suit in the Ecclesiastical Court for Tithes in kind of a Park now converted into Tillage, upon a surmise de Modo Decimandi, to pay a Buck and a do for all Tithes. 
Tithe-Park.  And allowed by the Court and agreed, (1) Although they are Ferae naturae, yet they may be given for Tithes: So to pay Pheasants, etc. (2) Although they are not Tithable of themselves, yet they may be given for Modus Decimandi: 
Mod. Deciman.  As a great Tree may be given for Tithe of Trees tithable. (3) That that is a discharge of the very Soil, and a Park is not but a Liberty, and the Owner may furnish it with Game when he please. But after a Consultation was granted, because the surmise was not proved within the Six months: So Adjudged Hill. 6. Jac. C. B. The Vicar of Clare in Suffolk, who sued for Hops. And there also a Prohibition was granted upon such a surmise. But after a Consultation was granted in that Case: For the Modus Decimandi was alleged for Discharge of Tithes of Hay and Herbage, and not of all Tithes, where the Libel was for Tithes of Hops. And Coke Chief Justice vouched one Shibden's Case, That such a Modus Decimandi generally for the Park is not good, if it be disparked. But it shall be particularly for all Acres contained in the Park 
d Sharp ag. Sharp. Noys Rep. .  
(76.) Upon a surmise to have Prohibition after Sentence at the Ecclesiastical Court, 
Tithes not s●t forth.  Two judgements were vouched upon the Statute 2 E. 6. for not setting forth of Tithes. And 43 Eliz. B. R. a Parishioner privately sets forth his Tithes, and takes witness of it▪ and immediately after he carries them away; that is not a setting forth within the Statute. For the words are truly, justly, and without fraud or covin. Vid. 10 H. 4. 2. 2. 44 Eliz. B. R. baker's Case: A Parishioner sells his Grain upon his Land, and after, by the command of the Vendee, he takes his Corn, being severed, without setting forth of the Tithes. That the Parson may well have an Action against him upon the Statute, and shall not be compelled to Sue the Vendee, who it may be was not known to him. And it is not Traversable, if the Tithes were set forth according to 47 Eliz. It was Resolved in Trin. 7 Jac. B. R. in Brickendine's Case against Denwood 
e Rochester ag. Porter. Noy's Rep. .  
(77.) If a Vicar hath used by Prescription time out of mind, etc. to have all the Tithes within the Parish (except Corn, which the Parson appropriate used to have) viz. of Hay, and also of Hops from the time it came into England, which was in the time of H. 8. and of Wo●d (which is a Dying plant) and moreover Rape-seed is sown there in the Parish, where never any such Seed was sown before, nor in England till of late times, 
Tithe Rape-seed.  yet the Vicar shall have the Tithes of that Rape-seed, and not the Parson appropriate; for that it is within the Prescription although it be a new thing, and therefore could not be prescribed singly; and for that the Parson is excluded of all except the Corn 
f Pasch. 7 Car. B. R. Rol. Abr. ver▪ Vicar. Decimae Garba●um. .  
(78.) If Doubt arise de Decimis Garbarum, as what shall be intended by Garba; it is said that Garba at the Common Law signifies at this day a Sheaf of Corn, and the Civilians say, Garba signifies such a thing as is bound together in one bundle 
g Roll. Abr. verb. Vicar, nu. 7. Tithe-Wood. .  
(79.) In the Case between Reynolls and Green it was Adjudged by the Court, That Wood in its own nature is Great Tithes; notwithstanding if a Vicar be endowed de Minutis Decimis, and by virtue of the said Endowment had of a long time used to have Tithe of Wood not exceeding the yearly value of 6 s. 8 d. the usage of Wood shall pass by the words de Minutis Decimis in that case, by reason of the small value thereof 
h Mich. 10 Jac. B. R. inter● Reynolls ● Green. .  
(80.) Where a Parson had Two parts of the Tithes, and the Vicar of the same place had the Third, and they by several Leases had demised the Tithes to one: In this Case the whole Court (except Justice Fenner) held, That although the Parson and Vicar could not join in this Case in a Suit of Tithes, because they claim them severally by divided rights, yet when both their Tithes are conjoined in one person, viz. the Lessee, than the interest of their Title is conjoined also in one (who made but one Action for the whole Tithes in that case) yet it was agreed by all the Judges, that the Plaintiff-Lessee should recover his Tithes in damages, and shall not demand them again in any Suit, after a Recovery in this Action 
i Pasch. 3 Jac. Sir R. Champion vers. Hill. Brownl. Rep. pa. 1. Actions of Debt. .  
(81.) It was Agreed by the whole Court of King's Bench, Mich. 5 Jac. and hath many times been Ruled, That if a man sell his Tithes for years by word, it is good; but if the Parson agree, that one shall have his Tithes for seven years by Word, 
Brownl. Rep. ibid.  it is not good, by the opinion of Fleming Chief Justice, because i● amounts to a Lease: and he held strongly, That Tithes cannot be Leased for years without a Deed.  
(82.) Upon the Statute of 2 Ed. 6. cap. 13. ●or Setting out of Tithes, in a Prohibition to stay proceed by a Parson in a Suit in the Ecclesiastical Court against one of his Parish, 
Action for stopping the parson's Way of carrying his Tithes.  for hindering of him in his way in the Carriage of his Tithes. The whole Court agreed in this, That if a Parson hath his usual way stopped, that so he cannot come to take away his Tithes being set out for him, he may well sue for this in the Ecclesiastical Court, and there have his remedy. But if the Question be whether the Parson be of right to have a way (viz.) one way or another, this is Triable by the Common Law, and not in the Ecclesiastical Court; but if the Parson have a certain Way granted to him, and set out by the Common Law, if he be at any time disturbed or hindered by any of his Parishioners, or by any other in the use of this his Way, he may then in such case well sue in the Ecclesiastical Court for his remedy. And the words of the Statute of 2 Ed. 6. cap. 13. are, That if any Parson be disturbed, stopped, or hindered in the carrying away of his Tithes, so that the Tithe comes to be lost, 
Mich. 8 Jac. B. R. Bulstr. par. 1.  hurt, or impaired; in this case he may sue in the Ecclesiastical Court for his Remedy, and upon due proof there made thereof, he shall recover double value of the Tithe so taken or lost, besides his cost and charges of Suit. But because in this principal Case, the Parson sued in the Ecclesiastical Court for the Right of his Way, whether he was to have that Way or not, which belonged properly to the Common Law, and not Triable there in the Ecclesiastical Court; for this cause the Court granted a Prohibition to stay their proceed in the Ecclesiastical Court.  

A  
ABby-Lands were five ways privileged or discharged of Tithes, viz. by Composition, Bull or Canon, Order, Prescription, and Unity of possession of Parsonage and Land time out of mind, together without payment of Tithes 
a Hob. 308, 309. . It is supposed, that no Land which belonged to Abbots, Priors, etc. is at this day discharged of Tithes, but such as came to the Crown by the Statute of 31 H. 8. c. 13. All Monasteries under Two hundred pounds per A●. were to be dissolved by the Statute of 27 H. 8. But those of 200 l. per Ann. or upwards, not till the 31 of H. 8. The Unity aforesaid, or perpetual Unity is, where the Abbot, Prior, etc. time out of mind have been seized of the Lands out of which the Tithes arise, and also of the Rectory of the Parish in which the Lands lie. Which Unity (as to a discharge of Tithes) must have these four properties, (1) It must be Justa as to the Title: (2) Perpetua, or time out of mind: (3) Aequalis, that is, a Fee-simple both of the Lands and Rectory: (4) Libera, or Free from the payment of all manner of Tithes whatsoever 
b Idem 300. Cro. 454, & 482. . In a Case where an Abbot held a P●rsonage Impropriate, which was discharged of Tithes, and had purchased Lands, so that the Tithes were suspended in the hands of the Abbot; and afterwards the Possessions of the Abbot coming to the King by the Statute of 31 H. 8. The Question was, Whether the Lands so purchased by the Abbot before his Surrender to the King, were discharged of the Tithes? It was the Opinion of Mr. Plowden in that case, that they were not discharged; for that no Lands were discharged, but such as were lawfully discharged by right Composition, or other lawful thing; and in the said Case the Lands were not discharged in Right, but suspended only during the time that they were in the abbot's hands 
c Mich. 17 Eliz. B. R. hugh's Abr. verb. Dism●s. .  
Acorns or Mast of Oak shall pay Tithe, for they are of Annual increase, as in Lifo●d's Case 
d Co. lib. 11. & Regist. 49. & Reynold's C. Mores Rep. . These Acorns or Mast are known in the Law by the word [Pannagium:] so Lindwood, Pannagium est pasture. Porcorum in Nemoribus & Sylvis, ut puta de glandibus, & aliis fruct●bus arb●rum Sylvestrium, quarum fructus aliter non solent colligi. Lindw. de Decim. c. Sancta Ecclesia, verb. Pannagiis. And Mr. Skene de verb Sign. defines this to be a Duty given to the King for the pasturage of Swine in his forests: Also Pannagium is taken for the money which is paid for the Pannage itself, as appears by the Statute of Charta de Foresta, cap. 90. Vnusque liber homo, etc. 
e Hil. 7 〈◊〉. E. of Shrewsburi●'s Case. Bulstr. p. 1, ● .  
Aftermoath or Second moth: Of this Tithes shall be paid de jure, unless there be a Special Prescription of Discharge by paying the Tithes out of the first moth, and then it shall be discharged 
f Pasch. 41 El. B▪ R. per Cur. Hill. 10 Jac. B. Parson of Stanfield in Suffolk, per Cur. Prohibit. granted. . But if a man pay Tithe-Hay, no Tithes ought to be paid d● jure afterwards for the pasture of the same Land for the same year, for he shall not pay Tithes twice in one year for the same thing, for that the After-pasture is but the relics of Hay, whereof he had paid Tithes before 
g Pasch. 16 Jac. B. nichols & Hooper, per Cu. 3 Jac. B. R. Spencer & Johnson. Pasch. 17 Jac. B. Kenniston. . Nor shall Tithes be paid for Agistments in such After-grass 
h 2 H. 4. Rot. Parl. nu. 93. . In Johnson and Awberie's Case it was Resolved, that Tithes are not to be paid for the After-pasture of Land, nor for Rakings of Corn 
i Cro. pa. 1. . And where in Awberies Case, Suit was in the Ecclesiastical Court for the Tithe of the After-mowings of Grass, an● upon a surmise, That the Occupiers of the Land had used to make the first Cutting of the Grass into Cocks for Hay, and to pay the Tenth Cock thereof in satisfaction of the First and After-mowings, a Prohibition was awarded 
k More. Case 1212. . So that After-grass, or After-pasture, or Aftermoath do not pay Tithes, where they have paid before of the Grass of the same ground the same year, save where by Covin to defraud the Parson, more Grass is left standing than was wont to be, or is there usual; Nor is the Herbage of cattle, which eat up that Grass, Tithable, unless there be some Fraud in the case 
l P. 7 Jac. C. B. adjudge. Mich. 6 Jac. C. B. Smith's Case Bulstr. 2. 238. Cro. 2. 42. 116. Green's Case. . Notwithstanding the premises, although the Aftermoath be not Tithable, where the Owner at his own costs, charges and labour, made the first Grass into Hay; yet Q. whether it may not be otherwise, where the Owner doth no more than cut down the Grass of the first moth? 
m Cro. 2. 42. Hall vers. Phettiplace. .  
Agistment, that is, a taking into Grass the cattle of Strangers within the Parish where the Grass grows; this is Tithable, and regularly by the Owner or Tenants of the Land, not of the cattle, unless the custom makes it Tithable by the Stranger 
n 17 Jac. B. R. & Cro. Car. 237. 559. Jones 254. . Heretofore there was not any Tithe paid for this Agistment 
o F. N. B. 53. ; but now the Law is taken to be otherwise 
p adjudge. Mich. 38 El. C. B. Grisman vers. jews. Cro. pa. 3. 446. : And is (as aforesaid) to be paid by the Owner, not of the cattle, but of the Land 
q Mich. 8 Jac. C. B. inter Baxter & Hopes. . Under this Notion of Agistment is also comprehended the depasturage of Barren cattle, whereof comes no profit to the Parson, the Quota of which Tithes is regulated by the Annual value of the Land, the Number of the cattle, or the Time of the Pasturing, according to the usage and custom of the place; yea, though the cattle be bred for the Plough or Pail, to be employed out of the Parish where they are Agisted, and by one that is no Inhabitant within the Parish, Tithes shall be paid for the Agistment of such cattle. But for profitable cattle, as Oxen, Horses, or Beasts of the Plough, employed and used in the same Parish, no Tithes shall be paid for the Agistment thereof 
r Roll. 1. 646. a. 6, 7. : But if cattle or Horses be bought, not for any Husbandry in the same Parish, but to be sold again, Tithe shall be paid for the Agistment thereof, and a fraudulent employment of them in the Parish to defeat the Parson of his Tithes, will not prevent the same 
r Rol. 1. 647. 〈…〉. . A. sued a Prohibition against B. Parson of D. because he Libelled in the Ecclesiastical Court for Tithes for Agistments; the Plaintiff pleaded, That he had always paid 12 d. for every Milch-Cow going in such a Pasture; and for this payment he had been discharged of Tithes for all Agistments in that landlord. In this case it was said, That this payment of money for Milch-Beasts, should not discharge him from the payment of Tithes for other Beasts 
s Hil. 43 El. C. B. Sharinglon and fleetwood's Case. Goldsb. 157. . In the Case of Lacie against Long the suggestion for a Prohibition was, That Parson sued in the Spiritual Court the Owner of the Land for Tithes of cattle, which he took to Agistment, where he ought to sue the Owner of the Cattle: It seemed reasonable to the Court, that the Suit was well brought against the Owner; but be it quomodocunque, it belongs to the Spiritual Court to determine, whether the one or the other aught to be Sued; therefore for that reason, as to that point, a Consultation was granted per Curiam 
t Hil. 7 Car. B. R. Lacie verse. Long. Jones Rep. . Vid. Pasture.  
Agreement: No Parson can by any Agreement made with his Parishioner bind his Successors; but being made with him for his Tithes during only the parson's life, this is good 
u Co. 11. 19 2. 43. . And an Agreement only by Word, without any Deed, may be good, made by the Parson with his Parishioner, that he shall keep his Tithes 
w Yelvert. 94, 95. . A Parson contracted with A. his Executors and Assigns, for 10 s. to be annually paid him by the said A. his Executors and Assigns, That he, his Executors and Assigns, should be quit from the payment of Tithes for such Lands during the life of the Parson: A. paid the Parson 10 s. which he accepted of, and made B. an Infant his Executor, and died: The Mother of the Infant took Letters of Administration durante minori aetate of the Infant, and made a Lease at will of the Lands: The Parson Libelled in the Spiritual Court for the Tithe of the same Land against the Tenant at Will. In this Case it was said, That the Agreement did oblige the Parson during his life: and although the Assignee could not sue the Parson upon the Contract, yet he should have a Prohibition to stay the Suit in the Ecclesiast. Court, and put the Parson to his Remedy for the 10 s. upon the Contract, for that he could not have Tithe in kind, by reason of the Composition made 
x Pasch. 21 Jac. B. R. Snell and bennets Case. Godbolt. 333. . If a Parson agree and contract with one of his Parishioners, that he shall keep back his own Tithes, if that be made after that he hath sown his Corn, and for the same year only, in that case the Agreement shall be good: And if the Parson sue in the Ecclesiastical Court for the said Tithes, the Parishioner shall have a Prohibition; but if it be for more years than one, or before the Corn is sowed, this shall not be good, by Coke and Foster against Warburton; and Coke said it was so Adjudged in B. R. in Parson Booth's Case, That a Contract made with a Parishioner for keeping back of his Tithes for so many years as he shall be Parson, was not good: and so it was Wellow's Case here also: But it was Agreed by them all, That such a Contract or Agreement for the Tithes of any other was void; but only of the party himself, who was party to the Agreement, and that ought to be made by way of keeping them back. Vid. 20 H. 6. & 21 H. 7. 21. b. 
y Mich. 8 Jac. 1610. C. B. Brown●. Rep. par. 2. . Tithes cannot be granted without Deed: It was Agreed by the Justices in Bugg and Woodward's Case, That an Agreement between a Parishioner and the Parson, that in consideration of twenty shillings per An. he should hold the Land discharged of Tithes during the life of the Parson, was not good to ground a Prohibition upon, for that the Grant of Tithes cannot be without Deed 
z Cro. par. 1. . The like in Hawks and Bryafield's Case, in stay of Suit for Tithes in the Ecclesiastical Court, it was surmised, That A. was seized of a message and Lands in the Parish of D. and agreed with the Defendant being Parson, in Consideration of Ten pounds to be yearly paid by A. to the Defendant during their Joynt-lives and his continuing Parson, in satisfaction of all Tithes growing upon the same Lands, that he should hold the Lands without payment of Tithes. Resolved, it was not a sufficient surmise to ground a Prohibition: For an Agreement to be discharged from payment of Tithes, for one year by word, may be good; but such an Agreement during the life of the Parson cannot be good without Deed 
a Crop. p●. 2. .  
Alms, or Things appointed for Alms, are not Tithable 
b Co. Inst. par. 2. 652. b. .  
Animalia Vtilia, such as Cows, Sheep, and the like, shall pay Tithes in kind.  
Animalia Inutilia, as Oxen, Horses, and the like, though Tithe cannot be paid thereof in specie; yet for their depasturage, or what bargain is made for the same, Tithes shall be paid 
c 2 Car. B. R. Poph. Rep. 197. .  
Apples: Suit in the Ecclesiastical Court for the Tithe thereof, in discharge whereof an Award or Arbitrement was there pleaded, and the plea refused; notwithstanding which a Prohibition was denied 
d Parker verse. Kempe. Bulstr. par. 2. Co. Inst. pa. 2. 643, & Co. 11. par. 49. a. Dr. & Stu. 173. .   

B  
BArk of Timber Trees is not Tithable, but is privileged together with the Trees.  
Barren Ground, which is suapte natura Barren, is not Tithable; but if Tithe-Wool and Tithe-Lamb have by Thirty years been paid for it, and after by Manurance is made fertile, then for the first Seven years such Tithe shall be paid for it, as was paid before. Therefore Barren Heath or Waste-grounds, naturally Barren and not Manurable without extraordinary charge, may pay Tithe of Wool, Lamb, or the like; but being converted into Tillage, shall pay no Tithe of Corn or Hay for the first Seven years after such improvement; during which time it shall pay only such Tithe as was formerly paid: Otherwise it is, if it became barren only by ill Husbandry 
e More, Case 1278. : Or if it became Barren by some accident of Inundation, or overgrown with Bushes, and after reduced again to Fertility; in that case it shall pay Tithes presently 
f M. 11 Jac. C. B. S●arington's Case. 2 El. Dyer 170. & 2 Ed. 6. c. 13. Co. 2. Inst. 656. Plow. 204. ●. 396. b. vid. 15 Car. B. R. in Sugden and C●ttel's Case. . Also Marsh-Lands newly gained from the Sea, and Fenn-Lands gained from the Fresh waters by Drayning, etc. are not within the Statute of 2 Ed. 6. c. 13. to be freed from the payment of Tithes during the first Seven years after the gaining thereof. Likewise, if Land be gained from the Sea, and that by great cost and expense, and afterwards turned to Arable-Land; it was the Opinion of the Court, that it shall pay Tithe notwithstanding the Costs, because it is not Barren Land of itself, but only by accident, and so not within the scope and intention of the Statute of 2 Ed. 6. 
g Pasch. 14 Jac. B. R. wit and Buck's Case. Bulstr. 165, 166. par. ●. . In the Case between strewed and Hoskins upon a Prohibition, Two Points were Argued by the Four Justices, viz. (1) When a Prohibition is brought upon the Statute of 2 Ed. 6. to stay a Suit in the Ecclesiastical Court for Tithes of Barren-Lands the first Seven years● it behoves the party who brings the Prohibition, to prove his Suggestion within Six months, otherwise a Consultation by the said Statute is grantable. (2) When a Consultation is granted for the Reason aforesaid, yet the party may have a new Prohibition upon the same Libel; for that the Statute of 50 Ed. 3. doth not extend to a Consultation granted upon non-probate of a Suggestion within Six months, but where a Consultation is granted upon the matter of a Suggestion: And so the Chief Justice declared the Opinion of the Four Justices, and thereupon a Rule given, That the Prohibition should stand, and the Defendant notwithstanding such Plea aforesaid in bar of the Prohibition, may plead in chief to the matter of the said Suggestion, and if he will dispute it, than he shall have several Consultations on the said Libel 
h Hil. 6 Car. B. R. strewed vers. Hoskins. Jones Rep. . Thus (as aforesaid) in a Prohibition for Tithes it was said by Papham Chief Justice, That if Lands be overflown with Water, and afterwards gained by Industry, Tithes shall be presently paid, although it had been overflown time out of mind; for those Lands of their nature were not barren, and the Statute of 2 Ed. 6. doth not intent, that Tithes shall not be paid within seven years, 
Sherington and Fleetwood's Case. Cro. par. 1.  but of such Lands as were merely Barren, and made good by Foldage or other industrious means. And so it was Adjudged Pasch. 14 Jac. B. R. in the Case between wit and Buck, in a Prohibition upon the Statute of 2 Ed. 6. cap. 13. the Clause touching Barren and Heath-ground, of which after improvement, no Tithes to be paid the space of Seven years next after the Improvement: For a Prohibition it was showed, That this Land, for which the Parson Libelled for Tithes, 
Bulstr. par. 3.  was Marsh and Sandy Land, and covered with Salt water, so that time out of mind no Grass had been known there to grow, nor any profit at all made of this, until now of late time, by and with the great costs, charges, and industry of the Tenant, this ground had been lately gained from the Sea, and from its overflowing, by repairing and making new Banks and Sea-walls, and by continual repairing of them, and so he had now converted the same into Arable Land, where he had Corn, and of this Land the Parson Libels for Tithes in the Ecclesiastical Court: And upon this matter thus showed, a Prohibition prayed, being to be discharged from payment of Tithes of this Ground for Seven years; this Statute being thus made for the encouragement of Tenants to make improvement of their Lands. Coke Chief Justice, It was Resolved in one Farrington's Case upon this Statute of 2 Ed. 6. that Wood-ground is not Barren ground within this Statute: This was there Adjudged, That if one do stock and grub up Wood-ground, and after convert this into Arable ground, he hath by this meliorated his Land, but with great cost and labour, yet he shall pay Tithes for this ground presently; for that Heath and barren-ground, intended to be within the Statute, aught to be such Land as is suapte natura sterilis, and Barren. Dederidge Justice, A Salt Marsh, if this be fenced and so made good Meadow, shall pay Tithes presently; yet before this was so fenced, no Tithes thereof payable. Coke, This Land shall be out of the Statute, out of the clause of Discharge for Seven years, notwithstanding this charge the Tenant hath been at in gaining this Land from the Sea; for to have this Land within the clause of Discharge within the Statute, it ought to be Suapte natura Barren, which here it is not, but by accident, and by the overflowing of the Sea. The whole Court agreed in this, That by this Statute Barren ground is such ground as will not bear Corn of it self, without very great cost in the extraordinary manuring of it; and therefore, that this is no such Barren ground within the Statute, as aught to be discharged from payment of Tithes, but that Tithes ought to be paid for the fame, and that the Parson had just cause to sue for his Tithes in the Ecclesiastical Court; and therefore the Prohibition was denied.  
Beech-Trees, regularly are Tithable; yet in a County where there is a scarcity of Timber, and where Beech is used as Timber for Building or the like, there possibly they may be discharged of paying Tithes; and therefore in Trin. 38 Eliz. it was Resolved, That Tithes shall be paid of Beech's, although they are above twenty years' growth, for they are not Timber. Yet in Holliday and Lee's Case in a Prohibition it was Resolved, That Tithes should not be paid of Beeches of above twenty years' growth 
i More. Rep. Holliday & Lees Case. . And in Pindar's Case it was also Resolved, That Beeches above twenty years' growth, being Timber, shall not pay Tithes 
k More. Cas. 716, 716. Jac. C. B. Pinder's Case. ; yet in a country where there is plenty thereof, they are not to be accounted Timber, or Tithe-free. So that Beeches in their own nature are not computed Timber-trees, and therefore Tithable, except where by the custom of the country, where there is scarcity of Wood, they are accounted Timber-trees, in which case they are not Tithable 
l adjudge. Pasch. 6 Jac. C. B. in ●ind●r and Spencer's Case. : The Judges of the Common Law have Resolved, That all sort of Wood that is usually employed for the building of Houses, Mills, etc. are Gross Woods, and within the Statute of 45 Ed. 3. cap. 3. of which sort are Oak, Ash, elm, Beech, Horse-Beech, and Horn-bean, against the opinion in Molyn's Case 
m Sir S. D●ggs Law of Tithes, c. 4. ; as also in Man and Somerton's Case, where it was said by Tanfield Justice, That Beech by the Common Law is not Timber: and so he said it was Adjudged in Cary and Pagett's Case; and in that case it was holden, That Tithes shall not be paid for Beech above the growth of twenty years in a common country for Wood, as in Buckinghamshire, for there it is reputed Timber; but in a plentiful country of Wood it is otherwise, for there it is not Timber, and Tithes shall be paid of it, as Sylva caedua, for which Tithes shall be paid under the growth of 20 years 
n Pasch. 5 Jac. C. B. Mau● & Somerton's Case. Brownl. 1. par. 84. .  
Bees pay not Tithes by the Tenth Swarm, but by the 10th measure of Honey, and the Tenth weight of Wax; and are Predial Tithes.  
Birch-Trees are Tithable, though above 20 years' growth 
o More. Cas. 1271, 1272. ; and therefore in Foster and Leonard's Case, in Attachment upon a Prohib. for Suing for Tithes of Great Wood, against the Stat. of 43. Ed. 3. it was resolve. 1. That of Birch Tithes shall be paid, for that they are not such Wood as the Stat. intended, as serving for Building. 2. That Oak and Elm cut down before the age of 20 years shall pay Tithes; for till they are of that age, they are not of that value as the Law regardeth for the purposes aforesaid. Also in Foster and Peacock's Case it was Resolved, That for Birch above the age of 20 years' growth Tithes should be paid 
q More. .  
Bricks are not Tithable, as was Adjudged in the Case betwixt Liff and Watts 
r Mich. 19 Eliz. B. R. & Pasch. 34 El. C. B. .  
Broom for Fuel spent in the Parish is not Tithable 
s More 1279. ; but if sold it shall pay Tithes, unless the Owner can prescribe or prove a custom of Tithing Milk or Calves of cattle kept on that ground; but regularly Tithe is not due of Broom spent for Fuel in the Parishioners house within the Parish 
t Pasch. 40 Eliz. Austin & Lucas, adjudge. per Cur. .   

C  
Calf's are computed among the mixed Tithes, which with Colts, kids, etc. are within the number of Tithes in kind; the Parson must have the Tenth thereof whenever it comes, if there be no custom to the contrary; for it is a good Modus Decimandi for Tithes of Calves, to pay a Calf for Tithe, if he hath Seven in one year; and if under Seven, then to pay a halfpenny for every Calf for Tithes; and if he fell any Calf, he shall pay the Tenth part of the price 
u Mich. 14 Jac B. R. Lee and colin's Case. . Calves (as also Lambs) are Tithable when they are Weanable, and able to live without the Dam; if they be sold, the Parson hath for the most part the Tenth penny in most places, unless something be in the custom against it: Also the Tithe of Calves, Colts, etc. is to be apportioned with respect to the places where they were engendered, brought forth, and nourished; but custom must prevail.  
cattle kept only for the Plough and Pail pay no Tithe: also no Tithe shall be paid for the Pasture which is eaten by the Oxen of the Plough, or by the cattle of the Pail. Mich. 9 Jac. Baxter & Hope, per Curiam. 
Tr. 15 Jac. B. Belle & Tarde. Prohibition granted. M. 14 Ja. B. R. Dr. Beste & Williams, Prohibition granted. Hill. 14 Jac. B. R. Kneebon & Woodret, Consultation denied.  No Tithe shall be paid for Horses of the Plough, for the Parson hath the benefit of their labour in the Tithes of the Corn. Tithes are not due for the young cattle, which a man rears for the Plough, for they are for the manuring of the Land whereof the Parson hath the Tithes. M. 14 Jac. B. Watley & Hanberry. Resolve. & Prohibition granted, Mich. 14. Jac. B. R. Joyse & Parker. Resolve. & Prohibition granted, Trin. 12 Jac. B. R. Maschal & Price, per Curiam. No Tithes are due for the young cattle, which a man rears for his Dairy; dict. Cas. Joyse, & dict. Cas. Kneebon, Prohibition granted. If a man according to the custom of the country sow his Land to feed his Horses for Tillage, and the usage be to suffer the Horses to feed upon that Land, without any other meddling therewith, 
M. 3 Jac. B. R. per Towse said, That it was one Samms Case of Essex. Adjudged. Tr. 38 El. B. R. inter Sherington & Fleetwood. per Curiam. M. 7 Car. B. R. Facy & Large, per Cur. Tr. 15 Jac. B. R. L●mkin & wild.  the Parson shall not have any Tithes thereof, for it is nothing but Pasture for such Horses. If a man buy or breed cattle, seed them and sell them, he shall pay Tithes thereof; otherwise, if he buy or breed them, feed them and spend them in his own house. Nor shall a man that feeds Sheep on his Land, and after kills and eats them in his own house within the Parish, pay any Tithes thereof. If a man buy or breed Barren cattle, as Oxen and Steers, and after sell them, he shall pay Tithes for their Pasture, for they cannot yield any other Tithes: otherwise it is of Barren Sheep, as of Weathers, for they can yield Tithe of their Wool. If a man keep Horses, which are Barren cattle, to sell, and he sell them accordingly, he shall pay Tithes thereof. But it was Resolved in Facy and Long's Case, That Tithes shall not be paid of any cattle eaten in the Parishioners Family, no more than for cattle reared for the Plough and Pail.  
cattle therefore or Beasts for the Plough or Pail are not Tithable, otherwise in case they be only kept for such use, till they be ready for the Plough or Pail, and then sold away, in such case they shall pay Tithe, being so sold for profit. And if they stray from one to another side of a Common belonging to two Parishes, 
Mich. 8 Car. B. R. Baxter & Hopes Cas. Brownl. 2. pa. acc. Trin. 20 Jac. Winch. 33. acc.  no Tithe is payable for this to the Parson of the Parish where the cattle do stray. And as Dry cattle, though bred for the blow, are Tithable, if they be sold away before they are put to that use: so also are Fatted cattle, if they be sold or killed for the House, but according to the custom of the place 
a M. 17 Jac. B. R. Mich. 2 Jac. B. R. Webb's Case. Mich. 8 Car. by 3 Justices. B. Istr. 2. 238. & March. 56. . Likewise for young cattle, as Calves, Lambs, Colts, pigs, etc. where their Dams are removed from one place to another, a Rate-Tithe is payable to the Parsons, according to the times of their abode in the several places, from the times of their engendering, by the Month-Rate 
b Broo. dimes 16. Lane 16. gold's b. 147. Plow. 66. . Also cattle Tithable feeding in any waste place, not commonly known to be in any Parish, are Tithable to the Parson of the place where the Owner of the cattle doth dwell. But if cattle do feed one half of the year in one Parish, and the other half year in another Parish, the Tithe shall be equally divided between the two Parsons of both Parishes: so proportionably for a greater or less time, provided it be the space of a Month or 30 days; but of any less time than a Month, no Tithe is payable 
c Term. 7 Jac. B. R. Broo. dimes 17 . If cattle be pawned or pledged, the Gagee shall pay the Tithe of them, because he is Owner of them for the time; but if a man Bail cattle or other goods to rebail, Tithes of them shall not be paid by the Bailee, because he hath no property in them, but only a Rebailer 
d Pasch. 15 Car. adjudge. acc Hugh. Abr. .  
Chalk and Chalk-pits are not Tithable.  
Cheese paying Tithe, exempts the payment of Tithe-Milk whereof the Cheese is made. Et è contra. So that Cheese is not Tithable where the Milk is Tithed. Et vice versa. Therefore to prescribe to pay the Tenth Cheese between May and August for all Tithe-Milk within the year, and not the Tenth part of the Milk, may be a good Prescription 
e More. Case 1279. . And where Milk is Tithed in kind, there no Tithe-Cheese is due: In which case, as in all others of Tithing, the custom of the place is to be observed.  
Cherry-Trees in Buckinghamshire have been adjudged Timber, and Tithe-free 
f Pasch. 17 Jac. B. R. .  
Chicken of all Tame-Fowl are Tithed in kind, according to the custom of the place. No Tithe shall be paid of Chicken, for that there is paid Tithe-Eggs; and Prohibition granted. Hill. 15 Jac. B. R. Resolved.  
Clay is not Tithable 
g Hill. 16 Jac. B. R. inter Daudrige and Johnson. .  
Clothes Fulled in a Fulling-Mill pay no Tithes 
h Ibid. .  
Coals are not Tithable; therefore a Prescription de non Decimando (as to that) is good 
i 20 Eliz. B. R. by Wray, and all the other Judges. . No Tithes shall be paid de jure for Cole. Hill. 14 Jac. B. R. per Houghton.  
Common of Estovers, or the Wood which a man burns in his house, doth not pay Tithes.  
Composition Real, is one of the ways or means whereby Tithes may be discharged: It is where the Incumbent, Patron, and Ordinary, by Deed or Fine, do agree that such Lands shall for ever be freed and discharged of all manner of Tithes paying an Annual payment, or doing some other thing for the profit or advantage of that Parson or Vicar to whom the Tithes did belong 
k Co. 4. 44. a. 2 Inst. 655. Dr & Stud. l. 2. c. 55. & Hob. 176. , from which Compositions all Prescriptions de Modo Decimandi have, or should have had their Original. But these Real Compositions, so as to oblige the Successor of the Parson or Vicar that made the same, seem now to be restrained by the Statute of 13 Eliz. cap. 10. whereby they are prohibited from making any Grant for above 21 years or three Lives, and that with the accustomed yearly Rent reserved. And if the Parson or Vicar make any Composition with his Parishioner without his Patron and Ordinary, it shall bind only for the parson's life, and during his Incumbency. This Composition is either between Parson and Parishioner, or inter Clericos; if it be between Parson and Parishioner, and it be touching Tithes past, the Composition is good, though it were without any Consideration at all; but if it be touching Tithes to come, it may be good as to a payment of Tithes only in part, but not good as to a nonpayment of any Tithes at all; nor is it good in part without the Bishop's approbation and confirmation. If the Composition be inter Clericos, and the Tithes be Personal Tithes, it holdeth not: but if they be Predial Tithes, the Composition holdeth, the Approbation of the Bishop of the diocese being thereunto had. So that Composition for the remitting or entirely taking away of Tithes it not good in Law; but a Composition with the Parson or Vicar to have but the Thirteenth Sheaf for his Tithe, was held to be a good Composition, and should bind the Parson 
l Hugh's Parsons Law, cap. 27. . Composition may likewise prevent the payment of Tithes in kind; and if it be made with a Parson or Vicar to pay a Modus Decimandi, which hath continued time out of mind, custom being equivalent to Law, it is good, and shall bind the Parson and his Successors 
m 8 H. 6. 22, 23. 9 H. 6. 17. 6 E. 3. 27. 17 E. 3. 11. 12 H. 4. 13. 19 H. 6. 75. 34 H. 6. 36. 31 H. 6. 28. 35 H. 6. 5. 26 H 8. 7. 27 H. 8. 20. & 21 acc. ; and although a Modus Decimandi cannot begin at this day, but must be by Prescription, yet a Composition may be made, which shall bind during the life of him that made it 
n Pasch. 17 Car. in Hitchcock's Case. . The Case was, A Vicar did contract with his Parishioner to pay so much for increase of Tithes, and died: his Successor sued in the Ecclesiastical Court for them. A Prohibition in this case was granted by the Court. The words of the Contract were (inter se convenerunt:) It was holden, that this was not a Real Composition, although that the Bishop did call it Realis Compositio, for his calling of it so, doth not alter the nature of it; but it remains a Personal Contract, and so shall not bind his Successor, although it were confirmed by the Bishop. It was said by Mallet Justice in this case, A Real Contract, although it be made between Spiritual persons, and of Spiritual things, is only questionable at the Common Law 
o Pasch. 17 Car. B. R. Hichcock & Hichcock's Case. Marsh. 87. . Composition shall bind during the life of him that made it, though not his Successors 
p Mich. 6 Jac. C. B Case Mildmay & Hutton. .  
Coneys taken in a Warren shall pay Tithes; yet they are not Predial, but Personal Tithes. Sed Q. whether Tithes shall be paid of them; because Berkley Justice, They are not Tithable but by custom, 15 Car. B. R. For no Tithes de jure without a custom ought to be paid for them, for they are Ferae naturae, Trin. 8. Car. B. R. Worden & bennets Case; after a Prohibition granted, a Consultation denied per Curiam for the reason aforesaid. 
Pasch. 15 Car. adjudge. acc.  Pasch. 13 Car. B. R. Sir Jo. Brewen & Dr. Bradish's Case per Cur. a Prohibition granted, and Hill. 13 Car. B. Vincent and Tutt's Case, Prohibition granted, and for Prohibition pleaded by the Parson to have them by Prescription. Mich. 14 Car. B. R. Williams and Wilcock's Case. Or if a man steals Coneys out of a Warren, 
Ibid.  he shall pay no Tithes of them, because the Law gives him no property in them; nor shall the right Owner pay any Tithes of them, because he hath no profit by them.  
Corn pays a Predial Tithe, as that which comes partly by the Industry of Man, and partly of the Earth. Mich. 8 Jac. C. B. Magna Charta 649. And if a custom be alleged, That the Parson shall have but the Tenth Sheaf of Wheat for all the Tithes of all manner of Corn and Grain, this is no good custom 
r 38 Eliz. C. B. . Yet Corn of all kinds sowed is Tithable according to the custom of the place; and is commonly Tithed by the Tenth Shock, Cock, or Sheaf, where the custom of the place is not otherwise; but not to put the parson's Tenth up on end in Shocks, unless the custom of the place be so 
s Smith's Case, C. B. . And if the Owner will not cut his Corn before it be spoiled, the Parson is without remedy 
t 12 Ed. 4. Dr. & Stu. 169. . And if he doth change the Corn or Grain sowed in the same ground, such change of the Corn so sowed doth change the Tithe to the same kind of that Grain. And if a man pay Tithe of Corn, he shall not pay any Tithe for the Stubble, which grew the same year on that landlord. Hill. 6 Jac. B. pl. 13. Smith's Case per Cur. & Case ibid. Pasch. 7 Jac. per Cur. & Mich. 9 Jac. Baxter & Hope, for the Aftergrass, & 2 H. 4. Rot. Par. nu 93. No Tithes for the Agistment in such After-pasture. And if the Parson hath Tithes of Corn one year, and the Land be left without Seed the next year, that so it may be ploughed and made ready for Seed the the third year, no Tithes shall be paid the second; for by lying fresh the Land is the better, and the Parson will have the better Tithes the third year. Pasch. 7 Jac. Smith's Case. By the Statute of 2 Ed. 6. cap. 13. the Parson or Vicar is privileged to come upon the Land to see the Tithes set forth: For by the said Statute it is Enacted, That at the Tithing time of Predial Tithes, it shall be lawful for any to whom Tithes are payable, or for his Deputy or Servant to see the said Tithes to be set forth and severed from the Nine parts, and quietly to take and carry them away. And as the parson's Rights are hereby secured from the danger of having his Predial Tithes subtracted: so likewise the Law hath provided nor only for the prevention of his being defrauded therein, and for his quiet removal and carrying the same away; but also for an open, free, and unmolested way and passage through which to carry the same away, as appears by Halsey's Case. The Case was this: H. procured a Prohibition against H. and declared, that the Defendant had sued him in the Ecclesiastical Court for a Way or Passage; he was Proprietor of Tithes in the Parish of M. and that the Common way to carry the Tithes out of the Plaintiffs Land was by a Close called S. and that the Plaintiff had stopped it up, when in very truth the Way was by Prescription by a Close called W. and that he had pleaded it in the Ecclesiastical Court, and the said Court would not allow thereof, and for that the Cognizance of a Prescription for a Way ought to be tried at the Common Law, and not in the said Court, etc. Whereupon the Defendant demurred, and by the Opinion of the whole Court a Consultation was granted; for that the Cognizance of ways for the carrying of Tithes belongs to the Court Christian, as appears by the Statute of 2 Ed. 6. and Fitzh. N. B. in Consultation, and Lindwood de Decim. 
u Hil. 6 Car. B. R. Halsey verse. Halsey. Jones Rep.  When Tithes of Corn are severed from the Nine parts, an Action. of Trespass lieth against any that shall take them away, whether he be the Owner of the Land or a Stranger 
w Broo. dimes 6. & Brownl. 2. pa. 30. . Also an Action of Debt lieth for Predial Tithes, as of Corn, Wood, Grass, Fruit, Hay, etc. and triple damages recoverable upon the said Statute of 2 Ed. 6. 13. But not so for lesser Tithes, as of Wool, Lamb, etc. nor for money given to the Parson in lieu thereof; but for each of these Suit may be commenced according to the Statutes of 27 H. 8. and 2 Ed. 6. 13. & 32 H. 8. 7. 
x Co. on Litt. 159. . So that if the Owner of the Corn set out his Tithes, and after take it away, the Parson may sue him in the Ecclesiastical Court, or bring an Action of Trespass against him: But the Parson may not sue a Stranger in the Ecclesiastical Court for taking away the Tithes which were set out. 
Hill. 6 Jac. Brownl. Rep. pa. 1. Cases in Law, etc.  In Hele's Case against Frettenden, the Resolution of the Court upon Two Cases upon the Statute of 2 Ed. 6. for not setting forth of Tithes was this, viz. A man possessed of Corn sells it, and before Two Witnesses sets out his Tithes, and afterwards privily takes away the Tithes; and the Parson sues him upon the Statute for triple damages, for not setting forth of Tithes: And the Defendant proves by Witnesses that he set forth his Tithes; yet the Fraud is provided against by the Statute, for the words are [without fraud or deceit.] In the second Case, One secretly fells his Corn to one who was not known, and afterwards the Vendee commands the Vendor to cut the Corn, which he doth, and takes away the whole Corn without setting forth his Tithes; the Question was, who should be sued for the Tithes: and the Court held, that the first Vendor should be sued, for it was Fraudulent. And where a Woman, being Proprietor of a Parsonage took A. to Husband; a Parishioner within the Parish set forth his Tithes and divided them, and then immediately took them back again; A. the Husband alone sued for the triple value according to the Statute of 2 Ed. 6. Two points were moved, (1) Whether that were a setting forth within the Statute? And by the Court, that it was not; and so hath been Adjudged in 43 & 44 Eliz. and 1 Jac. (2) Whether the Husband may sue for the triple value without naming his Wife? And to that the Court would be Advised; 
Ford vers. Pomroy. Brownl. pa. 2.  for though the Husband may sue alone, where a thing is Personal for which he sueth, as the Books of 4 Ed. 4. 31. 7 Ed 4. 6. 15 Ed. 4. 5, & 11. are; yet where the Statute saith, That the Proprietor shall have Suit for the not setting forth, etc. the Husband is not intended Proprietor as the Statute intends, but the Wife, and for that the Wife ought to join. For the due manner of Tithing Corn, the Parishioner ought of Common right to cut the same, and to prepare it for the Parson, and to separate it from the Nine parts; he ought also of Common right to make up the Corn into Sheaves, 
Hill. 6 Jac. ●. pl. 13. per Cur.  but is not obliged to gather and set it up into Hillocks or Heaps, for the manner of Tithing is good, 
Trin. 21 Jac. B. R. Guin & Merryweather's Case. Roll. Rep.  if the Corn be thrown out in Shocks; and being so set out they become Lay-Chattels. In Guin and Merryweather's Case it was said by Doderidge Justice, That if one defame and scandalise the Parson's Title to the Tithes, although he be not punishable for this in the Temporal Courts, yet he is punishable in the Ecclesiastical Court; he said also, that when Tithes are set out, they are then Lay-Chattels, and if a Stranger carry them away, the Action lies not in the Ecclesiastical, but Temporal Court; otherwise it is, if it were not severed from the Nine parts. Ley Chief Justice Agreed it, and said, That if a Stranger take the Corn before Severance of the Tithes, the Parson shall sue in the Ecclesiastical Court for Tithes against the Trespasser, and not against the terretenant: And where the Right of Tithes comes in question, Prohibition shall not be granted. Nor shall Fraud or Covin prevent the payment of Tithes; 
Stebs and Goodwich's Case. Moor's Rep.  for in a Case of Tithe-Corn, where the custom of L. in the County of B. was alleged, That the Parson ought to have the Tenth Land of Corn, beginning at the such Land which was next to the Church; the Occupiers of the Land, to defraud the Parson by Covin, did not sow the Tenth-Land, nor manure it; yet the Parson sued for Tithe in kind, to have the Tenth-Cock for Tithe of the Corn sowed, and a Prohibition awarded notwithstanding the Covin, because he had Remedy at the Common Law for the Fraud.  
Cows that yield Milk, no Tithe is to be paid for the Pasture thereof; and if a man hath but one Cow, and no Cheese made of the Milk thereof, the custom of the place must be observed, so that something be paid for the Tithe thereof, otherwise no custom will bind.  
Curtelages, or places adjoining to Mansion-houses, and applied to Seeds, Herbs, etc. are Tithable in kind, if the Parson make not an Agreement for the same; otherwise it must be Tithed in kind, by setting forth the Tenth-part for the Parson when the Owner receives his Nine parts.  
Custom is, where a Right to many is procured in Common and public: as Prescription is privately to one. If the custom be of translating of Tithes Predial (as in Composition) than it holdeth: Otherwise, if it be of Tithes Personal. But if it be of not yielding Tithes at all, it doth not hold; for a custom of paying nothing at all, is not good; but if it be only of yielding less than the Tenth, it holdeth both in Personal and Predial Tithes. It holdeth also as to the Place where Tithes ought to be left, of the Time when to be yielded, as also of the manner and form of yielding them. So that although custom (which chief refers to a Place, as Prescription) doth to a Person cannot totally take the Tithes away, yet it may limit and moderate the payment thereof. Notwithstanding in some places and cases, a custom applied to a country to pay no Tithe (as in 40 Parishes for the Wild in Sussex) is good; but generally such a custom is not good. Likewise, a custom tending to the impoverishment of the Parson or Vicar is no good custom. Mich. 11 Jac. C. B. inter Jux and Sir Charles Candish. Likewise a custom to pay Tithes truly, without view of the Parson; is not good 
y Hob. 107. . Also a custom alleged to pay the Tenth Sheaf of Wheat for the Tithe of all manner of Corn and Grain, is not a good custom. dict. Cas. Jux & 38 Eliz. C. B. adjudge. But a custom to pay Tithe-Wool at Lammas-day, though due at Shearing, is good 
z More. Case 1280. . But such is the strength of a custom, that it cannot be discharged by a verbal Agreement for Money 
a Hob. 106. . Custom may make that Tithable, which of itself is not Tithable 
b March. 65. ; and may alter Tithes in any other thing, which will be a Modus Decimandi, sufficient to bind the Parson and his Successors 
c Co. Select Cases 14, 46, 48. . Custom is properly Triable at the Common Law upon a Prohibition; but a Consultation may be granted on a Prohibition granted on a surmise not proved within Six months; as was Adjudged, Hill. 6 Jac. C. B. in Cas. inter Sharp and Sharp. No●. Rep. custom and Prescription; both aught to be without interruption Constant, and beyond the memory of man Perpetual, that is, no man in being remembers to the contrary; for it seems, if any man, or any authentic Record, or other sufficient Evidence can prove it was otherwise at any time since the first of R. 1. viz. 1189. the custom or Prescription at Common Law would not hold 
f Co. 2. Inst. 653. . Albeit by the Statute of 2 Ed. 6. c. 13. Tithes are to be yielded and paid as of right they had been within 40 years' next before; which time somewhat agrees with the Ecclesiastical Computation: And by the Statute of 27 H. 8. c. 20. they are to be paid according to the Ecclesiastical Laws and Ordinances, after the laudable Usages and customs of the Parish; which was also after confirmed (as to the lawful Usage and custom) by the Stat. of 32 H. 8. 7.   

D  
DEcimae Majores. such as Corn, Hay, etc. belong to the Parson: Decimae Minores or Minutae, as Saffron, Herbs, &c do belong to the Vicar. Pasch. 38 Eliz. B. R. Beding and Feak's Case. & Mich. 1 Car. C. B. Sir Rich. Vdal and the Vicar of Alton's Case.  
Dear, though they are Ferae naturae, yet they may be given for Tithes; and although they are not Tithable of themselves, yet they may be given for a Modus Decimandi. Hill. 6 Jac. C. B. the Vicar of Clare's Case. Sharp and Sharp's Case. Noy 148. acc.  
Deprivation: A Parson may after his Deprivation sue in the Ecclesiastical Court for subtraction of Tithes, which were due to him before his Deprivation, and a Prohibition will not lie in the Case. Adjudged, Hill. 13 Jac. Cole's Case.  
Discharge of Tithes may be either by custom, Prescription, Composition, Statute, Unity of Possession, or by privilege, as to Religious Orders now not of use 
g Co. 1. pa. 33. & 2 Ed. 6. 13. & 32 H. 7. Co. 44 & Brownl. 2. pa. 33. . There may be also a Discharge of Tithes as against the Vicar, by the payment thereof unto the Parson 
h Yelvert. 86. . And it may be by a Real Composition 
i Lane 17. Hob. 269, 296, 309. , but it cannot be by a Verbal Agreement for money 
k Hob 176. . And if there be a Discharge not of the Tithes themselves, but from the exact payment thereof by a Modus Decimandi, or Annual recompense in satisfaction thereof, it must be by custom or Prescription 
l Co. 13. 16. . By the Common Law a layman, although he were capable of a Discharge of Tithes by Grant of the Parson, Patron, and Ordinary, or by Composition; yet at that Law none had a capacity to take or receive them, save only Ecclesiastical persons, or a mixed person, as the King 
m Co 2. B. of Winchester's Case. . And by the same Law, if a Bishop were absolutely Discharged of Tithes by Prescription, whilst the Lands were in his hands, his Demising thereof to a layman could not make the same chargeable therewith 
n Co. ibid. . For in Wright's Case, where the Bishop of W. was seized of a manor in right of his bishopric, Prescribed that he and all his Predecessors had held the said manor, and the Demesns thereof time out of mind for him, his Farmers, Tenants for years or at will, Discharged and acquitted from payment of Tithes for these Lands; the Bishop made a Lease for years of parcel of the Demesns: The Farmer of the Rectory Libelled in the Ecclesiast Court against the Lessee for Tithes; all which matter he pleaded in the Ecclesiastical Court, and the Judge there refused to allow of the Allegation in Discharge of the Tithes: It was held in this case, (1) That if the Lands of the Bishop were absolutely Discharged in his hands by Prescription, the Demising of it to a layman could not make it chargeable with Tithes. (2) That a Spiritual person may Prescribe in non Decimando. (3) That the Refusal by the Ecclesiastical Judge to allow the Allegation in Discharge of Tithes, is not Traversable 
o Wright and Wright's Cas. Cro. par. 1. . In like manner the King being seized of Lands, parcel of the Forest of B. in Fee in right of the Crown, Discharged of the payment of Tithes, granted the Lands to the Earl of Hertford in Fee; and it was held, that the Patentee should be Discharged of payment of Tithes; and a Prohibition was granted in that Case 
p Mordant and Cummin's Case Cro. par. 3. . Yet in another Case, where it was surmised for a Prohibition, that the Prior of B. was seized of Lands, parcel of his Priory, and held them till the dissolution, Discharged of Tithes, for his Farmers and tenants for life or years; that the Priory was dissolved 27 H. 8. that the King was seized of the Lands, and shows the Statutes of 32 H. 8. and 2 Ed. 6. and that the King died seized of the Lands, that by mean Conveyances it was conveyed to J. S. and that the Plaintiff being his Tenant for years, was sued by the Parson of B. for the Tithes of these Lands. It was Resolved by the Court, That the Lands which came to the Crown by the Statute of 27 H. 8. should not be Discharged from the payment of Tithes, but should pay the same, although the Lands in the hands of the said Religious Persons or Houses were Discharged from the payment thereof, for that the privileges were Personal privileges, which were extinguished by the said Statute of Dissolutions, and there are not any words in the said Statute of 27 H. 8. to save the privileges; and the Statute of 31 H. 8. being a subsequent Law, had not respect to these privileges 
q Mich. 11 Car. B. R. Sydown and Holme's Case. Cro. par. 3. Parkins and Hind's Case. Cro. par. 1. Mich. 28 Eliz. in Cur. Wardor. More. . Likewise, where a Parson by Deed Indented leased his Glebe cum omnibus proficuis & Commoditatibus: It was notwithstanding Adjudged, that the Lessee should be charged with the payment of Tithes. And in Branches Case it was Resolved, That an Union of Copyhold Lands, and of the Parsonage in the hands of the Parson, as Parson Imparsonee, was no Discharge of the Tithes of the Copyhold Lands. And in this Case it was also Adjudged, That a Farmer of Lands might Prescribe in Modo Decimandi, but not in non Decimando.  
The Statute of 31 H. 8. gave all colleges Dissolved to the Crown, in which there is a Clause, That the King and his Patentees should hold Discharged of Tithes, as the Abbots held: Afterwards the Statute of 1 Ed. 6. gave all colleges to the Crown; but there is in it no Clause of the Discharge of Tithes: The Parson Libelled in the Ecclesiastical Court; and the Farmer of the Lands of the college of Maidstone in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of Opinion, That the King had the Lands of the college by the Statute of 1 Ed. 6. and not by the Statute of 31 H. 
Green and Buskyn's Cas. Moor's Rep.  8. But the Justices doubted, the Lands coming to the King by that Statute, whether they should be Discharged of Tithes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Ed. 6. for Discharge of Tithes: But it was Resolved by the Justices, That Unity without Composition or Prescription, was a sufficient Discharge of Tithes by the Statute of 31 H. 8.  
The templars were Dissolved, and their Possessions and privileges by Act of Parliament 17 Ed. 
Quarles and spartings C. Mores Rep.  2. transferred to St. John's of Jerusalem; and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King: It was Resolved, That the King and his Patentees should pay Tithes of those Lands, although the Lands propriis sumptibus excolantur, because the privileges to be Discharged of Tithes were proper to Spiritual persons, and ceased when the person Spiritual was removed: And the Statute of 31 H. 8. of Dissolutions did not extend to such Lands as came to the King by Special Act of Parliament, as those Lands of St. John's of Jerusalem did. And Mich. 6. Jac. C. B. in a Case de Modo Decimandi it was said, That one may be Discharged of Tithes five ways: (1) By the Law of the Realm, viz. the Common Law, as tithes shall not be paid of coals, Quarries, Bricks, Tiles, etc. F. N. B. 53. and Reg. 54. nor of the After-pasture of a Meadow, etc. nor of Rakings, nor of Wood to make Pales, or Mounds, or Hedges, etc. (2) By the Statutes of the Realm, as 31 H. 8. 13. 45. Ed. 3. etc. (3) By privilege, as those of St. John's of Jerusalem in England, the Cistertains, templars, etc. as appears 10 H. 7. 277. Dyer. (4) By Prescription; as by Modus Decimandi, annual recompense in satisfaction. (5) By real Composition. By all which it appears, that a man may be Discharged of payment of Tithes; yet a layman ought not to prescribe in non Decimando, albeit the may in modo Decimandi. And this in effect agrees with Tho. Aquinas in his Secunda Secundae, Quaest. 86. art. ult. vid. Dr. & Stu. lib. 2. c. 55. fo. 164. And the Causes why the Judges of the Common Law permit not the Ecclesiastical Judges to try Modum Decimandi, being pleaded in their Courts, is, because that if the recompense which is to be given to the Parson in satisfaction of his Tithes, doth not amount to the value of this Tithes in kind, they might overthrow the same: And that appears by Lindwood, 
Mich. 6 Jac. C. B. Case of Modus Decim. Co. lib. 13.  Constit. Mepham. de Decim. c. Quoniam propter, verb. Consuetudines. For this Reason it is said a Prohibition lies: and therewith agrees 8 Ed. 4. 14. vid. 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349.  
In a Prohibition upon a Suit in the Ecclesiastical Court, by the Defendant the Vicar of D. for Tithes: A Prohibition prayed upon his Plea thereof a Modus Decimandi, 
Mich. 14 Jac. B R. Wintell against child. Bulstr. par. 3.  to pay so much yearly to the Parson of Dale, in Discharge of his Tithes and the same Plea there disallowed. The whole Court agreed, that this Modus between him and the Parson, will not discharge him from payment of Tithes, as to the Vicar; and therefore by the Rule of the Court a Consultation was granted. Also the Court was of Opinion, That where a Bishop holds Lands discharged of Tithes, and he makes a Feoffment of the Land, the Feoffee shall be discharged of Tithes; and the like, if the King hath ancient Forest Lands discharges of Tithes, 
Mich. 9 Jac. C. B. Brownl. Rep. par. 1. Cases in Law, etc.  and the King grants this Land, the Grantee is discharged of Tithes: And it is a General Rule, That he which may have Tithes, may be Discharged of Tithes. So long as the Land is occupied by him who hath the Fee-simple, which did formerly belong to the Order of Cistertians, it shall pay no Tithes; 
Brownl. ibid.  but if he let it for years or life, the Tenant shall pay Tithes. For anciently there were many large Estates wholly exempted from paying Tithes, as Land belonging to the said Cistertian Monks to the Knight's templars, and Hospitallers: As in the Earl of Clanrickard's Case, who Libelled in the Ecclesiastical Court for the Tithes of Hay of a certain Meadow against Dame Denton, who pleaded, That the Prior of A. was seized of that Meadow as parcel of the Possessions of the Priory, and that they held it discharged time out of mind, etc. whereupon Issue was joined upon a Prohibition, and it was found for the Plaintiff; for that the Land was only discharged when it was in the hands of the Priory, and not when it was in the hands of their Farmers, and they were of the Order of Cistertians, whereupon a Consultation was granted: And now a new Prohibition was prayed, for that in the Ecclesiastical Court they had added to the former Libel, when the Statute of 50 Ed. 3. cap. 4. is, That whereas a Consultation is duly granted upon a Prohibition, that the same Judge may proceed in the same case by virtue of the former Consultation, notwithstanding any other Prohibition. Provided always, that the matter in the Libel of the said cause be not altered, enlarged, or otherwise changed; Dr. Pope, Doctor of the Civil Law said, That there was not any enlarging or changing in substance of the Libel in question; for whereas in the former Libel it was, That they had used to pay Tithes time out of mind, now in the second Libel is added, That although the Prior was discharged, yet they, viz. the Farmers, have paid Tithes for 20, 30 or 40 years, and time out of mind. Montague Ch. Justice said, That it seemed that that was not an alteration: but Doderidge and Houghton Justices held, That that was an alteration of the Libel; for now by that last Libel, They could fetch them in for Tithes, though they were discharged in the hands of the Abbot: and for that the Tithes had been paid for 20, 30 or 40 years since the Statute aforesaid (the which is a sufficient time to make a Prescription, according to the Law of the Civilians) they would charge the Land with Tithes in whose soever hands they are, when by the Statute it ought to be discharged only in the hands of some, viz. the Priors; and afterwards Dr. Pope pulled off the Addition, which he had made to the former Libel, off from the second Libel. And the whole Court said, That if he proceeded upon that Addition, that Sentence shall be given for Tithes, upon any Prescription since the Statute, that then they would grant a Prohibition. Mich. 18. Jac. B. R. Dame Denton's Case and the Count of Clanrickard. Roll. Rep. par. 2.  
The Order of the Praemonstracenses were Discharged of all Tithes of their Land, the which Manibus aut sumptibus excolebant propriis. All the Chief Monks paid Tithe as well as other men, 
Discharge of Tithes.  till Pope Paschal at the Council of Mentz Ordained, that they should not pay Tithes de Laboribus suis; and that continued as a general Discharge till the time of H. 2. when Pope Adrian restrained it to three Orders, viz. the Cistertians, the templars, and the Hospitallers. And the Discharge which the Order of the Praemonstracenses had, was made by Pope Innocent the Third, by his Bull. And after in the Council of Lateran, ne Ecclesia nimium gravaretur, it was provided, That the privilege of the templars should not extend to their Farmers. Vid. Case Dickenson and Greenhall. Mich. 22. Jac. B. R. Roll. Rep. 2. part.  
In Hurrey's Case against Boyer in a Prohibition to the Ecclesiastical Court, for stay of a Suit there for Tithes of Lands, which were the possessions of the Hospital of St. John of Jerusalem, upon Suggestion that the Prior of the said Dissolved House of St. John's had this privilege from Rome, which was by divers Councils and Canons; viz. That the Lands of their Predecessors, which by their own hands and costs they did Till, they were not obliged to pay Tithes. In this Case it was agreed, That this Hospital was not Dissolved by the Statute of 31 H. 8. c. 18. of Dissolutions, but by a Special Act made 32 H. 8. c. 24. by which their Corporation and Order was Dissolved, and their Possessions given to the King, with all the privileges and Immunities thereto belonging, which the King granted to the Plaintiff in the Prohibition; and whether he should hold them Discharged of the payment of Tithes was the question. Harris Serjeant urged, That this Immunity was annexed to the Corporation of the Prior, and his Brethren of the said Hospital, and doth not come to the King, it being determined by the Dissolution of the said Hospital; and so Adjudged in B. R. against the Book of 10 Eliz. Dyer. 277. 60. 2. Coke, the Bishop of Winchester's Case, 14. B. and the Archbishop of Canterbury's Case, 47. B. and 18 Eliz. Dyer 349. 16. Nichols sergeant to the contrary, and cited a Canon made by the Council of Mag. and another made by Innocent. 3. An. 1215. and divers others, and also the Statute of 2 H. 4. 4. and 7 H. 4. 6. and if Land be Discharged of payment of Tithes by Prescription of not Tithing, and this Land come to the King, the privilege remains; and these Lands are given to the King in the same plight and case, as they were in the Hospitallers; and affirmed the Book of 10 Eliz. Dyer 277. 60. to be good Law; and that the aforementioned Cases of the Archbishop of Canterbury and the Bishop of Winchester, and the words of the Statute of 32 H. 8. 24. gives the King not only the manors, Houses, etc. but also all Liberties, Franchises, privileges, etc. In this Case it was Confessed, that it came by reason of the Order of the Cestertians, as appears by the Canon: And Hutton sergeant arguing for the Defendant, said, that it appears by the Statute of 2 H. 4. 4. that it is Personal, and that it differs from the Lands which came to the King by the Statute of 31 H. 8. For by that the King is Discharged of payment of Tithes, and so are his Patentees; but that this privilege is Personal, and if so, than it is determined by dissolution of the other, and a personal privilege in case of Tithe is not transferred to the King. Barker sergeant for the Plaintiff in this case said, That it was Ordained by Edgar, King of this Realm, that Tithes shall be given to the Mother-Church: Also Edmund, Ethelstone, William the Conqueror, and the Council of Magans, specially provided that Tithes should be paid, but did not appoint when they should be paid. But the first Law which appointed the quantity, was made in the time of Ed. 1. and this Ordained when they ought to pay the Tenth with the fear of God. And before the Council of Lateran every one might pay his Tithes to what Parson he would, and then were paid to Monasteries as Oblations. If a Parson in one Parish claim Tithes in another, as portion of Tithes due by Prescription to his Rectory, he ought to show the place especially, viz. the place where the Tithes lie. In the Seventeenth year of Ed. 2. the Order of the templars was dissolved, and their Possessions annexed to St. John of Jerusalem: and they did not claim by any Bull of the Pope, nor other Spiritual Canon, but by Prescription, which is privilege and private Common Law, as appears by the Statute of Westm. 2. cap. 74. And Menham's Canon in the time of Ed. 1. saith, Let the custom be observed. And another Canon, That custom of not Tithing, or of the manner of Tithing, if they paid less than the Tenth part, shall be observed. Vid. Panormitan. & Cas. Hurrey verse. Boyer, Brownl. Rep. & dict. Cas. Pasch. 9 Jac. Rot. 1511. C. B. Brownl. Rep. par. 2.  
In the Bishop of Winchester's Case, 38 Eliz. it was Resolved, That at the Common Law none had capacity to take Tithes but Spiritual persons, 
Coke 2. The Bish. of Winchester's Case. 38 Eliz. fo. 43.  or Persona mixta, as the King▪ and regularly no mere layman was capable of them (except in special Cases;) for he could not Sue for them in the Court Christian; and regularly a layman had no remedy for them until the 32 H. 8. A layman may be Discharged of Tithes at the Common Law by Grant, or by Composition, but not by Prescription; for in the Books of the Common Law it is commonly said, That a Law-man may Prescribe In Modo Decimandi, but not In non Decimando: And the reason is, because he is not (except in Special Cases) capable of Tithes at the Common Law, before the Statute of 32 H. 8. cap. 7. And therefore without Special matter showed, it shall not be intended that he hath any lawful Discharge, and in favour of the Holy Church (although it may have a lawful Commencement) the Law will not suffer this Prescription, In non Decimando, to put it to the Trial of laymen. A Spiritual person that was capable of Tithes at the Common Law in Pernancy, may Prescribe to be Discharged of Tithes generally, or to have a portion of Tithes in the Land of another. Before the Council of Lateran, every man might give his Tithes to any Spiritual person that he would; and if the Lands of the Bishop were Discharged in his hands absolutely by Prescription, the Demising it to a layman cannot make it chargeable, and the Bishop might reserve the greater Rent.  
A Parson by Deed Indented leaseth his Glebe, cum omnibus proficuis & commoditatibus: 
Parkins and Hind's Case. Cro. par. 1.  It was notwithstanding Adjudged, that the Lessee shall be charged with the payment of Tithes. And in an Action of Debt upon the Statute of 2 Ed. 6. for not setting forth of Tithes; the Case was, The Lands were a parcel of the possession of the templars, whose Lands were annexed to the Priory of St. John's. The templars had a Special privilege to be Discharged of Tithes of those Lands, 
Cornwallis & Spurling's C. Cro. par. 2.  which propriis manibus excolunt. By a Special Act of 32 H. 8. the Possessions of the Priory of St john's, were given to the King by general words of all Lands in tam amplis modo, etc. as the Abbots held them. Resolved, That the Defendant should not be Discharged, nor have the privilege; for by the Common Law a Lay-person was not capable of such a privilege, and the King should not have the benefit of the privilege, until the Stat. of 31 H. 8. But the Statute extends only to such Possessions as came to the King by Surrender, and should be vested in him by that Act, and doth not extend to Possessions which are vested in him by another Act. and these Lands were given to the King by a Special Act of Parliament, and therefore not Discharged of Tithes.  
Dotards, or the Branches of Trees of twenty years' growth or upward, are not Tithable 
n More. Cas▪ 1270. .  
Doves in a Dove-house do pay Personal, not Predial Tithes 
o 15 Car. adjudge. , but if stol● out of a Dove-house, no Tithe is to be paid of such 
p Pasch. 15 Car. adjudge. acc. . Tithes shall be paid de jure of young pigeons. Mich. 14 Jac. B. between Whatley and Hambury Resolved. Hill. 15 Jac. B. R. Resolved, and a Prohibition denied in Gastrell's Case. By custom Tithes may be paid of Pigeons spent in a man's own house, but not so of Common right. Case ibid. But if sold, they shall pay Tithe. dict. Cas. Whatly.   

E  
EGgs are Tithed in kind, or according to the custom of the place, which serves for the Tithe of the Tame and domestic Fowl, where their young are not paid in kind; and where Tithe of Eggs is paid, there is no Tithe of the young: And so vice versa, where the Tithe of the Young is paid, there no Tithes of Eggs may be demanded.   

F  
FAllow-Grounds pay no Tithe for these years wherein they lie Fallow, nor is the Pasture thereof Tithable, unless it be kept Lay beyond the course of Husbandry; for if Land lie Fallow every two or three years, the same is a charge unto the Owner and Tenant for that time, and an advantage to the Parson in the bettering of his Crop the year following, when the same is sowed with Corn or Grain; and therefore, although the Grass and feeding of the Fallow-ground for that year be some small profit to the Owner of the Soil, yet he shall not pay Tithe for the same, as hath been Adjudged 
a Pasch. 7 Jac. C. B. . Yet it was afterward Adjudged 
b 15 Car. by Barkley Justice in C. B. , That if Lands be Tithable, and the Tenant or Occupier of the Land will not Plough it, or Manure it, especially thereby to prejudice the Parson; that in such case the Parson may Sue the Tenant in the Ecclesiastical Court to have Tithe of that landlord.  
Ferae naturae, Beasts and Birds that are such are not Tithable 
c 12 H. 8. 4▪ , till they become tame and profitable to the Owner, that is till they are reduced to a Tameness and Property; yet it hath been held, that Tithes are not payable for tame turkeys, Pheasants, or Partridges, nor for their Eggs 
d More. Case 322. . Although Beasts Ferae naturae, as Bucks, Does, Pheasants, etc. are not Tithable of themselves; yet they may be given for Tithes, or for a Modus Decimandi, as a great Tree may be given for Tithe of Trees tithable 
e Case Sharp versus Sharp. Noy. Rep. . And as things which are Ferae naturae, whereof a man hath not an absolute property, are not Tithable: so likewise of things which are merely for Pleasure Tithes shall not be paid 
f 12 H. 8. 4. by all the Justices. .  
Fenny-Lands drained and made Arable do pay Tithes 
g Bulstr. 8. 165. , notwithstanding the Statute of Barren Land 
h More. Case 603. .  
Fish taken in the Sea, are by the custom of the Realm Tithable, not by the Tenth Fish, but some small Sum of Money in consideration of a Tithe 
i Tr. 8 Car. B. R. Earl of Desmond's Case, adjudge. Cro. 1. pa. 192. & 15 Car. B. R. adjudge. Hugh. Abr. verb. dimes. . But if taken in a Pond, or in a several Piscary, than they are Tithable by the Owner thereof as a Predial Tithe, and as such aught to be set forth according to the Statute of 2 Ed. 6. Trin. 8 Jac. C. B. the Earl of Desmond's Case. Mich. 15 Car. B. R. adjudge. acc. vid. Trin. 9 Car. B. R. Yet it is said, that Fishers, Fowlers, and Hunters, not for pleasure, but by way of Trade for profit, pay some Tithe by usage in nature of a personal Tithe to the Parson or Vicar where they inhabit, though they take their Fish, Fowl, etc. in another Parish; but if they paid Money to another in that other Parish for this liberty of Fishing, etc. then he that takes that Money, must pay as a Predial Tithe to the Parson of that other Parish where he inhabits. Fish taken in the Sea, being Ferae naturae, are not understood to be Regularly, but Customarily only, Tithable, as in Cornwall, Wales, Yarmouth, etc. 
k Cro. Car. 264. 1. 339. Koll. 1. 635. c. 4, 6, 7. . And so it hath been Resolved 
l Law of Tithes, cap. 8. ; albeit in the said Case of the E. of Desmond it was held, that they were Tithable by the custom of the Realm: In which case it is more probable, that the Fishers pay a Personal, than the Fish a Predial Tithe, to the Parson or Vicar of that Parish where they inhabit. To this purpose there is a Case extant, wherein a Prohibition was granted against the same Parson of W. in the County of L. for suing in the Ecclesiastical Court for the Tithe of trout taken in a River, because being Ferae naturae, they are not Tithable; and a precedent was showed 5 Car. where a Prohibition was granted against the same Parson for suing for Tithe-Eeles taken in the River▪ because they were Ferae naturae: And it was said, that in Yarmouth was a Suit for Tithe-Herrings taken in the Sea; but they could not prevail in it. Jones Justice said, That in Wales they used to pay Tithes for Herrings; and in Ireland it is a common course to pay Tithe for salmon taken in Rivers: whereunto it was replied, That that might peradventure be by custom, for otherwise Tithes are not due for Fish taken in Rivers 
m Hil. 9 Car. B. R. Cro. par. 1. 247. . For no Tithes de jure are to be paid for Fish taken in a Common River. Pasch. 5 Car. B. R. a Prohibition granted to stay a Suit for Tithes of eels taken in a Common River in the Parish of Barton in Westmoreland; and Hill. 9 Car. Prohibition granted to stay a Suit for Tithes of trout in the same River. But the Court seemed to be divided, whether Tithes of them were due or not: But they granted a Prohibition, for that the Law shall decide thereupon; it was between daws and Huddlestone. No Tithes shall be paid in kind without a custom for Fish taken in the high Sea out of any Parish. Hill. 14 Car. B. R. between Long and Dircell per Curiam, and Prohibition granted accordingly. 
Appeal out of Ireland to the Delegates in England.  And Justice Jones said, that on an Appeal to the Delegates out of Ireland in the Lord Desmond's Case it was Agreed, That for such Fish so taken, only Personal Tithes are due deductis expensis. Likewise, no Tithes in kind shall be paid de jure for Fish taken in a Common River, which is not enclosed, as in a Pond enclosed; for that they are Ferae naturae, although they are taken by one who hath a severed Piscary there, and although the place where they are taken be within the Parish of that Parson who claims them; for it is a Personal Tithe, in which Tithes ought to be paid deductis Expensis. Pasch. 15 Car▪ B. R. between Gold and Arthur, and others, Prohibition was granted where the Suit was for Tithes of Salmon in the River of Exe. Mich. 15 Car. between Whislake and the said Arthur, and others: the like Prohibition granted on the same matter between other parties. 
Trin. 8 Car. B. R. Cro. p. 2.  And in the Case of a Prohibition it was Resolved, That Tithe shall be paid for Fish taken in the Sea, which is not within any Parish; and they shall be paid to the Parson of the Parish where the Fish is landed.  
Flax pays a Predial Tithe, payable when dressed up. Coke▪ Mag. Char. 649. The Tithes of Flax are Minutae Decimae. Mich. 14 Car. B. R. in Noah Webb's Case.  
Forest-Lands, that lie in no Parish, or between two Parishes, and anciently such, are not Tithable by the King or his Patentees; but if the Forest be in a Parish, and Land therein which is Tithe-Free, if the Forest happen to be disafforested, it shall pay Tithes in kind. Crompt. Jurisd 52. Bacon Chief Justice, at Sarum-Assize; the Case was, A. Lessee for years of the Earl of H. prayed a Prohibition against the Vicar of L. to stay a Suit in the Ecclesiastical Court for Tithes, because the Lands out of which the Tithes were demanded, were parcel of the Forest of B. whereof the King was seized in right of his Crown, and he and all his Predecessors held the said Land discharged of Tithes; and shown that the King had granted the said Forest to the Earl of Hertford in Fee, and so he ought to have them discharged of Tithes: In that Case it was held by the Court, That it was only a privilege annexed to the Crown, during the time that the Land was in the Crown; but the Court doubted, whether the Patentee might have such privilege: But yet the bene esse the Prohibition was granted 
n Mich. 3 Car. C. B. Morant and Canding's Case. Cro. p. 1. 67. . If Tithes do lie in any Forest, as in the Forest of Windsor, Rockingham, Sherwood, or other Forest which is not any Parish, the King shall have them by his Prerogative, and not the Bishop of the diocese, or Metropolitan of the Province, as some have thought 
o 14 H. 4. 17. . But yet it seems by 22 Ass. 25. if there be cause of Suit for such Tithes against the parties who ought to pay the same, such Suit might be brought in the Ecclesiastical Court: But if a Stranger takes away such Tithes from the Parson or Vicar, there for such Trespass the Suit may be in the Temporal Court, as the same may be for taking away other goods in the like case. Adjudge. 15 Car. B. R.  
Fowl taken by a falconer, who hawks for his pleasure, shall not pay Tithe; but if a Fowler kill Fowl, and make a profit of them, it hath been held, that he shall pay a Personal Tithe for them. Pasch. 15 Car. adjudge. acc.  
Fruits of Trees, as Apples, Pears, etc. are Tithable presently upon their gathering, and are Predial Tithes; for the subtraction whereof the Parishioner is impleadable. Stat. 2 Ed. 6. c. 13. Fruits of Trees, Apples, Pears, etc. Mast of Oak, Beech, etc. are Predial Tithes. Coke Magn, Chart. 649. The Fruits of Orchards and Gardens are Tithable in their proper kinds, and to be paid when they are gathered, unless there be some Modus or Rate-Tithe paid in lieu thereof.  
Furse is Tithable, and pays a Predial Tithe, unless the Owner thereof can prescribe or prove a custom of Tithing Milk or Calves of the Cattle on the ground where the Furse grows. Mich. 29. Eliz. B. R. Vid. Heath.   

G  
Gardens are Tithable as other Lands, and therefore the Herbs which grow therein pay Tithes in kind. Also Plants, Seeds, Woad, Saffron, Hemp, Rape, etc. pay Tithes in kind, unless the Parson make an Agreement for the same; otherwise the Tenth part must be set forth for the Parson, when the Owner receives his Nine parts. Mich. 8. Jac. C. B. in Baxter's Case. & Trin. 9 Jac. B. R. The whole Court.  
Glebe is a portion of Land, Meadow, or Pasture, belonging to or parcel of the Parsonage or Vicarage, over and above the Tithes. If it be Demised by the Parson to a layman, it pays Tithe; otherwise, if he keep it in his own hands 
p Owen 35. . For Glebe kept in the Vicars own hands, pays no Tithe to the Parson Impropriate, it is otherwise if it be in the hands of his Lessee 
q Brownl. 69. , by whom it is Tithable, if let by a Parson Impropriate. And although Glebe-Lands are not properly Tithable, because Ecclesia Ecclesiae Decimas non debet solvere; yet if Glebe-Lands be leased out the Parson, the Lessee shall pay the Small Tithes arising out of such Glebe-Lands to the Vicar that hath Small Tithes upon his endowment, as in Blinco's Case 
r Blinco vers. Marston. Cro. par. 1. 469. . And yet in that case the Vicar Libelled in the Ecclesiastical Court to have Tithes of the Glebe of the Parson, and a Prohibition was granted, for that the Glebe shall pay no Tithe 
s dict. Cas. Blinco. Moor's Rep. . Notwithstanding which, if a Parson lease his Glebe-Lands, and do not withal Grant the Tithes thereof, the Tenant shall pay the Tithes to the Parson 
t Cro. Eliz. 161. . Likewise, if a Parson sow his glebeland, and then Lease the same, the Tenant shall pay the Tithes of this Corn to his Landlord the Parson 
u Roll. 655. k. 1. . Yet if a Parson sow his Glebe, and die before Severance, some have held, that his Executors shall not pay Tithes of this Corn. And albeit where Glebe-Lands are leased out by the Parson, the Lessee shall, as aforesaid, pay the Small Tithes thereof to the Vicar, that hath the Small Tithes upon his Endowment; yet he shall not have the Small Tithes arising upon such of the parson's Glebe-Lands as the Parson keeps in his own hands 
w Cro. Eliz. 578. . Likewise on the other hand it hath been held, That the Vicar upon a general Endowment, shall not pay Tithes of his Glebe to the Parson, or of the Fruits that arise from the same, and that for the same reason aforesaid, Quia Decimas Ecclesia Ecclessae reddere non debet 
x Crompt. Cas. Pasch. 7 Car. 1. B. R. . But the Lessee of the parson's Glebe shall pay him, the Tithes thereof; to this purpose the Case was, A Parson leased all his Glebe-Lands, with all Profits and Commodities rendering 13 s. 4. d. pro omnibus exactionibus & demandis, and afterwards Libelled in the Ecclesiastical Court against his Lessee for the Tithes thereof: It was the Opinion of the Court, That Tithes are not things issuing out of Lands, nor any Rent or duty, but Spiritual; and if the Parson doth Release to his Parishioner all demands in his Lands, his Tithes are not thereby extinct, and therefore a Consultation was granted 
y Trin. 31 El. B. R. Style & Miller. Leon. 300. . And so it was Adjudged 32 Eliz. in Babington's Case, That such Lessee should pay Tithes to the Parson, for that they are due jure divino, and cannot be included in Rent 
z Hugh. Abr. vert. Dimes. Sec. 2. & 5. Harris vers. Cotton. Brownl. pa. 1. Actions of Debt. . As long as the Vicar occupies his Glebe-Lands in his own hands, he shall pay no Tithes; but if he Demise it unto another, the Lessee shall pay Tithes to the Parson that is Impropriate. If the Vicar sow the Land, and die, and his Executor take away the Corn. and doth not set forth his Tithe, and the Parson bring his Action of Debt upon the Statute of 2 Ed. 6. In this case the Court seemed to incline, that it would lie. The Glebe-Lands and Spiritual Revenues of clergymen, being held in pura & perpetus Eleemosyna, h. e. in Frankalmoign, 
Vid. The Present State of England. pag. 228.  are exempted from Arraying and Mustering of Men or Horses for the War, as appears in a Stat. of 8. H. 4. nu. 12. in the unprinted Rolls of that Parliament. An Abbot was Parson Imparsonee of the Church where the Abbey and Tithes were, the Abbey was Dissolved; the King granted the Monastery to one, and the Parsonage and Rectory to another: It was the opinion of the Justices, That if the Land of the Abbey was the Glebe of the Parsonage before the Impropriation, that then the Land was discharged of Tithes; for it remains Glebe notwithstanding the Appropriation, and the Glebe cannot be gained by Prescription, nor was ever chargeable to pay Tithes: And if the Parson doth make a Lease of his Glebe, 
Mich. 5 Eliz. Mores Rep.  the Lessee (as was there said, contrary to what was before said) shall not pay Tithes; but the Demesns of the Abbey, not parcel of the Glebe, should be chargeable to pay Tithes, if they were not discharged in right of a Composition or perpetual Unity.  
Grass pays a Predial Tithe; but if a man cut Grass, and before it be made into Hay, being only put into swaths, he carry it thence and give it to his ploughing cattle for their necessary sustenance, not having otherwise Food sufficient for them; in this case no Tithes shall be paid for the same, and Prohibition was granted. Mich. 9 Car. B. R. Crawley & Wells. per Curiam. The Case was, where J. Libelled in the Ecclesiastical Court for the Tithes of the Profits, which came of the Grass and herbage of Pasture-Land, and upon a Prohibition granted; P. suggests, That he did feed on that Grass and Pasture with his own plough-cattels, and with the plough-cattles of other man in the same Village. Noy, Consultation shall be granted; for though a mrn shall not pay Tithes for the cattle of his Cart, yet he shall pay Tithes for the Land whereon they do feed. Doderidge Justice, Where I do agist cattle, and take the cattle of other men to eat up my Grass and Pasture, there I shall pay Tithes for the Grass; 
Trin. 18 Jac. B. R. Johnson & Parker's Case. Roll. Rep.  otherwise it is, where the Grass is only such as I do depasture with my own working cattle. Crook cited Sherington and Fleetwood's Case, where a man Agists other men's cattle on his Meadowgrou●d, whereof he paid Tithe-Hay afore time; and it was Resolved in this Case, That he shall not pay Tithes for that Meadow-ground now fed with other men's cattle after Harvest, and no more than if he had depastured the Land with his own cattle.  
Gravel is not Tithable. Mich. 19 Eliz. B. R. & Pasch. 34. Eliz. C. B. Liff and Watt ' s Case.  
Grain is computed among the Predial Tithes, which is to be set out according to the Statutes and the usage of the place, Brownl. 1. 14. which holds true of all sorts of Grain in all grounds within the Parish: The Law is the same touching Hay in Meadows.  
Grounds let to Strangers out of the Parish, the Tenth-peny of the Rent is commonly payable to the Parson, 
Mich. 8 Jac. C. B. Baxter's Case. & Trin. 9 Jac. B. R.  if no custom against it. Or Ground within the Parish let to a Stranger without the Parish, is Tithable by the Ower of the cattle, unless the custom there be osherwise. Or if the Ground be fed with cattle that bring no profit to the Parson, the Owner thereof must pay Tithes for them. Or Ground fed with the cattle of a Stranger within the Parish, which brings no profit to the Parson or Vicar, he is to pay Tithes for it; the Case therefore seems the same, if both the Ground and the cattle be his own that is the Stranger, in case he work them in another Parish. But the Studs of Ground or the Meers thereof at the Ends of Land, and adjoining to the Arable-ground, are not Tithable where the Land itself pays Tithe, unless where being mowed for Hay, it hath used to pay Tithes.   

H  
HAy pays a Predial Tithe, and is to be Tithes in swaths, Windrows, or Cocks, as the custom of the place is. Or if the custom be to measure out the Tenth part, as the Grass grows on the Land for Hay, the custom is good; and the Tithe of Hay may be set forth in Grass-Cocks, where the custom doth not oblige to make it into haycocks 
a Roll. 1● 644. y. 1256. . And if Hay be put into Ricks on the ground, and after sold, the Buyer cannot be sued for the Tithe; the Seller may, in case the Tithe thereof were not paid before. Hill. 16. Jac. by three Justices in Ashfield's Case. And where two Crops of Hay are had from the same ground in the same year, Tithe shall be paid as well of the latter as of the former 
b Roll. 1. 645. z. 11, 12, 13. . Also Tithe shall be paid of the Hay made of Grass growing in Orchards. Co. 2. Instit. 652. But no Tithe Hay shall be paid for the Grass growing upon Headlands, which are only large enough for the turning of the Plough 
c Roll. 1. 646. 2. 19 ; but not for Grass cut in Meadows to feed the Beasts of the Plough, and not made into Hay. Trin. 1. Car. B. R. Wells verse. Crawly. Yet on some Headlands Tithe may be payable of Hay, for suppose that in an Arable Field there be much Grass on the Headlands thereof, and there be a Prescription to pay the Tenth Shock of Corn there for all the Hay on the Headlands and Rakings of the Corn, and for Tying of Horses on the Headlands, such Prescription was held good to discharge the Tithe of the Hay upon such Headlands 
d Leon. 2. 93. . And although a Second Crop of Hay from the same ground the same year is Tithable, as aforesaid, yet regularly the Hay of the Aftermath pays no Tithe, except there be a Special custom for it; the Rule being, That Tithes shall be paid Ex annuatis renovantibus simul & semel 
e Hob. 250. . And where the custom is not otherwise, the Parishioner ought to make the Grass into Hay for the parson's Tithe 
f Pasch. 13 Jac. B. R. Roll. Rep. . Yet when the Tithes of Grass are severed from the Nine parts, the Parson de jure may make it into Hay upon the Land where it grew, and that de jure, as well as the Parishioner himself; and so Adjudged in the Parson of Columbton's Case in Devon, and the Prohibition denied accordingly; where the Parson had alleged a custom of doing so, but the Court held that to be needless. Hill. 14. Jac. B. R. Newberry and Reynold's Case, per Curiam. And in this case it was held, That the Parson may go over the Parishioners ground in the pathway to make the said Grass into Hay, for that is incident to the Tithes. A man is not bound to make into Hay the Tithes of the Grass which he cuts; but he may set forth the Tithes thereof when it is in Grass-Cocks, for he may then sever the Tithes of Grass from the Nine parts. Pasch. 17 Jac. B. hid & Ellis, Hob. Case 328. Contr. Hill. 14 Jac. B. R. Barham & Goose. P. 15. Jac. B. R. per Cur. and Prohibition denied; Tr. 15 Jac. B. R. Poppinger & Johnson per Cur. and Prohibition denied. Pasch 13 Jac. B. R. per Cur. and Prohibition denied. P. 2. Jac. B. R. Hob. 328. Hall & Simonds, Adjudged. Likewise, a man is not bound to sever the Tithe of Grass before it be put into Grass-Cocks, and hath set forth the Tenth part; for he may put it into Grass-Cocks out of the Swath, and then set forth the Tenth part. Ibid. Suit was for Tithe-Hay in the Ecclesiastical Court by the Parson; it was surmised, That they had time out of mind paid to the Vicar 4 d. for the Tithe-Hay. The Court awarded a Consultation, for that the Modus Decimandi doth not come in question; but this he may plead in the Ecclesiastical Court 
g Batham & Lady Gresham's Case. Cro. par. 1. . And in Gomersall and Bishop's Case for Tithe-Hay, the Court held, That if there be variance between the surmise and the Declaration, all is ill. In another Case in a Prohibition, it was surmised, That time out of mind the Owners of the Land had found Straw for the Body of the Church in discharge of all Tithes of Hay: It was the Opinion of the Court, That it was no good surmise, for that the Parson had no benefit of it; and a Consultation was awarded 
h Scory and Babe●'s Case. ibid. .  
Heath, Furse, and Broom, Tithe shall be paid thereof, unless the party set forth a Prescription or Special custom, That time out of mind there hath been paid Milk, Calves etc. for the cattle that have been kept upon the same Lands; in which case they shall not pay Tithes 
i Mich. 29. Eliz. B. R. Adjudged. Hugh. Abr. .  
Hemp pays a Predial Tithe. Co. Magn. Char. 649.  
Herbage of ground, whereon Corn was sowed the same year, and whereof Tithe hath been paid the same year, is not Tithable 
k More. Case 433. 697. 1280. Leon. 2. Case 30. . If Herbage he sold, it is at the parson's Election, whether he will Sue the Owner of the cattle that feed thereon, or of the Ground, for the Tithe thereof, if custom be not against it. And as for Herbage growing at Lands-ends, adjoining to the Arable, pays no Tithe, where Tithe was paid for Arable 
l Lane 16. . Where an innkeeper hath paid Tithe-Hay of certain Lands, and the rest of the year after puts into the same the Horses of his Guests, no Tithes shall be paid for the Herbage of such Horses; for it is but the After-pasture of the same Land, whereof he had paid Tithes before. Trin. 16 Jac. B. R. Richardson & Cable, per Curiam, Prohibition granted.  
Honey is Tithed by the Tenth measure thereof. A Prohibition was prayed for Suing for divers kinds of Tithes, & inter alia for Honey, upon a surmise that it was not payable, that Bees are Volatilia: It was thereupon demurred; but the Opinion of the Court was, That Tithes are to be paid for Honey, for so is the Book Fitz. N. B. and therewith agreeth Lindwood; wherefore the Court awarded that there should be a Consultation 
l M. 15 Car. B. R. rot. 1227. Bar scot and Norton's Case. Cro. pa. 3. .  
Hops pays a Predial Tithe, and regularly are accounted inter minutas Decimas; yet in some Cases they may be Great Tithes, in places where they are much set or planted 
m Udall & tindal's Case. Hutton. 77. . Mich. 8. Jac. B. A man may set forth the Tenth part of his Hops for Tithes before they be dried. Hill. 14 Jac. B. R. in Barham and Goos' Case, put by sergeant Hitcham, and agreed by Montacute.  
Hop-poles or Wood cut and employed for them, are not Tithable where Tithe- Hops are paid. And so it hath been Resolved, That if would be cut and employed for Hop-poles, where the Parson or Vicar hath Tithe-Hops, they shall not have Tithes of the Hop-poles. So if a man hath a great Family, and much Wood be felled and spent in House-keeping, Tithes shall not be paid of such wood Mich. 15 Jac. C. B. by Hobart Chief Justice, White & Bickerstaff's Case.  
Houses of habitation, or Dwelling-houses are not properly Tithable, no Tithe payable for the same, nor out of the Rent reserved for them being let; yet by a custom Tithes may be paid for Rent reserved upon Domise of Houses of habitation, although it be otherwise do jure, for it might commence on good Consideration. Co. 11. Dr. Grant 16. vid. Mich. 12 Jac. B. Hobart 16. Leyfield's Case. Prohibition granted. Otherwise of New Houses, whereof there can be no custom. Ibid. But regularly Houses are not at all Tithable, nor were Tithes anciently paid for Houses in London, the Profits of the Churches whereof, consist only in Oblations, Obventions, and Offerings, Co. ibid. But by a Decree made An. 1535. and confirmed by Act of Parliament, Stat. 37 H. 8. cap. 12. there is 2 s. 9 d. made payable to the Parson for every Pound of House-Rent for the Tithes of the Houses in London. Hob. 11. But if a Modus Decimandi be alleged to pay 12 d. in every Pound of Rent for every House in such a Parish in London, it is a good Modus Decimandi. The aforesaid 2 s. 9 d. is to be raised and made up according to the usage and custom of the City. Stat. 27 H. 8. 20. & 32 H. 8. 7. And no Tithes are payable for Houses in any City save London, where a Prescription to be discharged of Tithes of a House, by paying 12 d. of every Pound rend in lieu thereof, is (as aforesaid) a good Prescription. Co. 11. 16. But Tithes regularly are not payable for Houses of Habitation, nor of any Rent reserved upon any Demiss of them; for Tithes are to be paid of things which grow and renew every year by the Act of God. And for the Houses in London Tithes anciently were not paid, as aforesaid; yet the Parson of St. Clement's without Temple-Bar Libelled against a Parishioner for Tithes of certain Stables 〈…〉 set forth in his Libel, That of 〈…〉 ●●scription time out of mind, the 〈…〉 had used to have a Modus Decimandi, after the Rate 〈…〉 Tenth-part of the yearly Rent or value of the same 〈◊〉 was the Opinion of the Court, That in this Case a Prohibition should be granted; for de Communi jure no Tithes are to be paid of the yearly Rent or value of Houses, for Tithes are paid of the revenue and increase of things; and therefore no Tithes are paid for Houses in any Cities or Towns in England, saving in London; and this Parish is out of London and the Liberties thereof: Now where there is no Tithe at all, there can never be a Modus Decimandi, and yet it seems this kind of Payment hath been long used in London, which certainty was by use. But for Houses, Oblations were paid in all places; which are now by the Stat. brought to a certainty, viz. 4 d. for a House. Trin. 12. Jac. C. B. Dr. Leyfield and tindal's Case. Hob. 10. 11. In Green and Piper's Case it was agreed by the Justices, That a House in London, which was parcel of the Possession of a Priory, which was discharged of the payment of Tithes, should by the Stat. of 37 H. 8. be charged with the same. One who was a Curate and Sequestrator only of the Rectory of D. in London, the Incumbent being suspended, Sued Four of the Parishioners in the Ecclesiastical Court for Tithes of their Houses, and not before the Mayor of London, according to the Statute of 37 H. 8. The Court doubted of it, especially because the party was neither Parson nor Vicar, and because the Statute is a New Law, and appoints how the Tithes in London shall be paid and Ruled, and before what Judges, and what Remedy shall be for the party grieved; and day given to hear Counsel on both sides 
n Mich. 16 Car. B. R. Cro. par. 3. . In the Case aforesaid between Green and Piper 
o More. 1218. , when Suit was in the Ecclesiastical Court for the Tithes of a House in London, a Prohibition was prayed upon a surmise, That the House was a Priory, which was discharged of Tithes by the Pope's Bull, and the Statute of 31 H. 8. which gave their Possessions to the Crown, did Ordain, That the King and his Patentee of such Lands should be discharged of Tithes; yet a Consultation was awarded, because by a latter Statute, viz. 37 H. 8. cap. 4. all Houses in London shall pay Tithes according to their Ordinances, and the Statute extends to all Houses, and none excepted but the Houses of noblemen.   

L  
Lamb's are computed among the mixed Tithes. To pay Pence apiece for Lambs, when the number is less than Seven, is a good Prescription. Curia 7 Jac. B. R. Patche's Case. Or rather thus, viz. if the Parishioner hath Six Lambs, or under, he shall yield for Tithe a halfpenny for every Lamb: if he hath Seven Lambs, than he shall yield a Lamb for his Tithe, and receive three-halfpences from the Parson: if Eight Lambs, than a penny: if Nine Lambs, than a halfpenny from the Parson, who may otherwise expect the Fall of the Tenth Lamb the year next following. Lindw. cap. Quoniam propter. Also the Tithe of Lambs is to be apportioned with respect to the places where they were engendered, brought forth, and nourished. Lindw. cap. Quoniam audivimus. And regularly the time of payment is, when they are weaned from the Dam, unless the custom of the place be otherwise. To stay a Suit in the Ecclesiastical Court for the Tithe of Lambs a Prohibition was prayed, upon a surmise the custom to be, That if one hath Lambs under the number of Seven, he ought to pay a halfpenny for every Lamb in lieu of all Tithes of Lambs; if he hath but Seven, than the Parson to have the Seventh, and he to pay threepences; if Eight, than twopences; and if he had Ten, the Parson should have the Tenth without paying any thing: Resolved, That this being a custom, which they refused to allow in the Ecclesiastical Court, a Prohibition should be awarded 
p Pasch. 11 Car. B. R. Cro. p. 3. .  
Lands accrueing to the Crown by the Statute of 27 H. 8. touching Dissolutions, are now Tithable, though whilst they were the Lands of Religious Houses they were not Tithable; but their privileges being Personal, they were extinguished by the said Statute of Dissolutions, nor hath the Statute of 31 H. 8. retrospect to the said privileges. 15 Jac. C. B. Garret and wrighs Case. & 7 Car. B. R. Clark and Ward's Case. Vid. Sr. Marmad. Strickland's Case 1639. Adjudged at York Assize accordingly. Vid Clayton's Rep. 117. & 12 Car. Adjudged in another Case. Also Lands gained from the Sea, and made Arable, must pay Tithes. Bulstr. 8. 165. So must Lands in themselves Tithable, but not Manured or Ploughed, specially if so in prejudice to the Parson; in which case he may Sue the Occupier of such Lands in the Ecclesiastical Court for the Tithes of that landlord. Vid. 15 Car. C. B. per Berkley Justice, Adjudged.  
Lops of Trees above twenty years' growth shall pay no Tithes 
q More. 158. ; For it hath been held, that if a man Lop a Tree under twenty years, growth, after suffer the Tree to grow past twenty years, and then Lop it again, no Tithe shall be paid for the second Lopping, although the first Lopping were not Tithe-Free 
r C. B. by the whole Court. Brownl. 1. pa. 33. . It was Resolved in Reynold's Case, That Tithes shall not be paid of the Lopping of Trees above twenty years' growth. More's Rep.  
Lime is not Tithable; Adjudge. 19 Eliz. B. R. & Pasch. 34. Eliz. C. B. Liff and Waltt's Case: Nor Marle, Bricks, Slates, or Tiles, unless the custom of the place make them Tithable; otherwise not, because they do not annually increase, and because Lime is part of the Freehold. Mich. 13 Jac. B. Thomas and Perrye, per Curiam.   

M  
Must of Oak or Beech, if sold, the Tenth-peny is payable for the Tithe thereof; but if eaten by Swine, than the Tenth of the value or worth thereof.  
Meadows by ill husbandry overrun with Thorns, Bushes, and the like, are not computed as Barren Lands, but do still remain Tithable. Hill. 38 Eliz. B. R. Sherington and Fleetwood's Case. Vid. 15. Car. B. R. Sugden and Cottle's Case.  
Mills, the Tithe thereof, as also of Parks, Ponds, Warrens, dovecoats, and Bees, seem primo intuitu, as if they were all Predial Tithes. For the Tithe of Mills, not the Tenth peny-Rent, but the Tenth Measure of Corn grinded at the Mill, is responsible for the Tithe; understand it of Corn- Mills, whether new or old, driven by Wind or Water; for the Tithe whereof generally the Tenth Toll-dish is due, if there be not some other custom in the place. And whereas by the Law and the ancient Constitutions of the Church Tithes were not paid of Ancient Mills, yet by the Statute of Articuli Cleri, cap. 5. Tithes are to be paid for all Mills newly erected: so that de Molendino de novo Erecto Tithes shall be paid. Trin. 14. Jac. B. R. So that all new Corn- Mills, be they Wind or Water- Mills, also Fulling- Mills, Paper- Mills, Powder- Mills, Stamping- Mills, (and probably for the same reason Saw- Mills) Iron- Mills, and all others that are of Common and public use, do pay Tithes; but old Corn- Mills, for which no Tithe was ever paid, no Tithe is to be paid, except a Personal Tithe, as is for a Trade of profit: And such Tithe shall be paid of Fulling- Mills, Rapt- Mills, Paper- Mills, Iron- Mills, Powder- Mills, Lead- Mills, Copper- Mills, and Tin- Mills; for such Mills pay no Tithe as Mills, because they are but Engines of their occupation, Pasch. 17. Jac. Johnson's Case. & Cro. 2. 532 & Bulstr. 3. 212. & Fitzh. N. B. 41. G. & Co. 2. 44. only the Millards are to pay a Personal Tithe, as aforesaid, as for a Handicraft, or Faculty. Therefore a Fulling-Mill as such pays no Tithe. Hill. 16 Jac. B. R. between Dawbridge and Johnson, Parson of Buckfield. For there being a Fulling-Mill, which Fulled 40 Clothes a week, and gained two shillings for every Cloth: It was held, that there was no Tithe to be paid thereof. Cro. 2. Abridg. Case 2638. But a Corn- Mill newly erected, though upon Land discharged of Tithes by the Statute of Monasteries, must pay Tithes; and so of every new erected Mill on a man's own ground. Ibid. Cas. 1522. Notwithstanding the premises it seems somewhat questionable, whether any Tithes are due for Mills de jure, or not; for the Lord Coke. Instit. 2. par. 622. says, It was never Judicially determined that ever he knew of. If Mills do not yield a Predial Tithe, yet doubtless the Millards are to yield a Personal Tithe, as well as other handicraftsmen, but custom in this, as in other cases prevails. It hath been Adjudged Trin. 18. Jac. B. R. That where a Parson Libelled in the Ecclesiastical Court for Tithes of a Mill, which was erected upon Lands which were discharged from payment of Tithes by reason of privilege within the Statute of 31 H. 8. That a Prohibition would not lie in that case: for that De Molendino de novo Erecto Tithes ought to be paid. Mich. 15 Eliz. in Hapers Rep. acc. But in the other Case of the Fulling-Mill aforesaid, where the Parson Libelled in the Ecclesiastical Court for the Tithes thereof, and suggesting, that the Miller Fulled every week 40 Clothes, as aforesaid, and gained two shillings of every Cloth, demanded Tithes for them: A Prohibition was granted in that case; for it was said by the Justices, That by the Law of the Land he ought not to pay Tithes of such Mills; for of such things as come only by the Labour of men Tithes are not payable, but of things which are renewable every year. dict. Cas. Dawbridge & Johnson. Cro. par. 2. 523. And in another Case, where a man Libelled to have Tithes of Mills upon a Suggestion of a Modus Decimandi for the same, a Prohibition was granted: In that Case it was said by Coke Chief Justice, That in some cases Tithe is payable for Mills, and in some cases not. No Personal Tithes by the Statute is to be paid of Mills, but where by special Usage the same hath been paid; and whereas a Modus Decimandi was alleged to pay Tithes for Mills, it was Resolved, That the Modus did not extend to Mills newly erected, upon the Statute of Articuli Cleri; for De Molendino de novo erecto solvuntur Decimae. Trin. 14 Jac. B. R. Jake's Case. Bul●●r. pa. 3. 212. If two Fulling-Mills be under one Roof, and a Rate-Tithe paid for 〈◊〉 Mills, and after you altar these Mills, and make one of them a Corn-Mill, the Rate-Tithe is gone, and you must pay Tithes in kind. Brownl. pa. 1. Cases in Law. If there be two ancient Corn-Mills time out of mind, etc. for which 6 s. 8 d. have been paid for the Tithes time out of mind, etc. and after in continuance of time the Mill-Stream doth change his course, and goes another way at a little distance from the ancient Stream, and thereupon the Owner of the Mills pulls down one of the ancient Mills, and new builds it in that other place where the Stream now runs: In this case it shall be discharged of any Tithes by force of the ancient Modus, for that happened by the act of God, and not by the act of the party; and Prohibition was granted accordingly, Mich. 11 Car. B. R. Johnson and Dawbridge's Case, Resolved Per Curiam. But withal the Court held, that if the Stream had been altered by the Owner, Tithes ought to have been paid as of a new Mill. In another Case it being Libelled in the Ecclesiastical Court for Tithes of a Grist-Mill and of a Fulling-Mill, Crook agreed, That for a Grist-Mill Tithes shall be paid; but he said, That the Statute De Articulis Cleri, which speaks de Molendinis non fiat Prohibitio, ought not to be meant or intended of a Fulling-Mill, for the profit that accrues by that, is by the Labour of men, and therefore not intended within the general words of the Statute De Molendinis, for which reason he prayed a Prohibition. Calthroppe said, that it was the opinion of Justice Warburton and nichols, 12 Jac. That Tithes shall be paid of Fulling-Mills, viz. the Tenth-peny of the gain or profit; but of Grist-Mills the Tenth-dish of Corn shall be paid, for that is in the nature of a Predial Tithe: And so it was held 5 Jac. in the Case between Vbi and Lux, Vid. Lindw. Provin. Constit. But yet Doderidge held, That if there be not a Special custom alleged for the payment of Tithes of a Fulling-Mill, Tithes shall not be paid thereof; for he had spoken (as he said) with the Civilians, who held that Tithes should be paid of such a Mill; but they could not agree what manner of Tithe it is, for some said it is a Predial Tithe, Others, that it is a Personal Tithe; but he said it could not be a Predial Tithe, for it wholly accrues by the Labour of man; and if so be that he should have that Tithe as a Predial Tithe, than another Tithe would be demanded of him who shears the Cloth, and also of the Dyer thereof, and so Tithes should be paid many times for the same Cloth: But the Usage or custom of the country is to be considered. And for Tin-Mills, or Lead-Mills, or Plate-Mills, Ragg-Mills, or Edge-Paper-Mills, no Tithes shall be paid; and to this agreed Doderidge, Houghton, and Croke: And therefore as to the Grist- Mill, a Consultation was granted, and as to the Fulling- Mill, there was a Prohibition. Pasch. 17 Jac. B. R. Roll. Rep. par. 2. A Parson Libelled in the Ecclesiastical Court for Tithes of a Mill, which was erected upon Lands discharged of Tithes by the Statute of Monasteries, 31 H. 8. A Prohibition was prayed, but denied by the Court; for the molendino de novo Erecto non jacet Prohibitio. Trin. 15 Jac. B. R. Cro. par. 2. Also in another Case where it was moved for a Prohibition, upon a Suggestion of a Modus, to pay so much by a custom for all Mills erected, or to be erected, and this appearing to be a New-erected Mill: Whether the custom shall run to this or not upon the Statute of Articuli Cleri, c. 5. was the Question. Coke Chief Justice, This Modus cannot go to this new Mill; for an ancient Mill your Modus shall be allowed, but not for the Mill newly erected, the custom will not extend to it; and therefore by the Rule of the Court, for this new Mill a Consultation was granted.  
Millstones, if one pair thereof be turned into two pair, both of them shall pay Tithe, and their privilege (if they had any) will be lost. Pasch. 17 Jac. Johnson's Case, & Fitzh. N. B. I. G. Co. 244. Brownl. 1. 31. So that if there be but one pair of millstones in a Mill, and a Rate-Tithe be paid for them, if afterwards there be another pair of millstones put on, now Tithes must be paid in kind. Brownl. ibid.  
Milk paying Tithe, exempts the payment of Tithe-Cheese made of the same Milk. Et è contra.  
Mines or Minerals of Iron, Brass, Tinn, led, Copper, coals, and the like, are not Tithable. Register 51. F. N. B. 53. 9 Broo. dimes 18.  
Mixed Tithes are of the profits of such things as arise partly from the labour and care of men, and partly from the Earth whereof the things are; and sometimes are called Predial Mediats, and come not immediately of the Ground, but of things maintained out of the Ground, as cattle, Calves, Lambs, Kids, Wool, Milk, Cheese, Chicken, Geese, Ducks, Swans, Eggs, etc. Mixed Tithes are properly such as come of Milk, Cheese, etc. Or ex foetibus animalium, quae sunt in pascuis, & gregatim pascuntur, ut in Agnis, Vitulis, Haedis, Caprcolis, Pullis, etc. Coke, Magn. Chart. 649.  
Modus Decimandi is the payment of something in lieu of the just and full Tithe of a thing Tithable, legitimated by Composition, custom, or Prescription; it is when Lands, Tenements, or Hereditaments have been given to the Parson and his Successors, or an Annual certain Sum, or other Profit always time out of mind to the Parson and his Successors, in full satisfaction of all Tithes in kind in such a place; and all precedents in Prohibitions in discharge of Tithes in case De modo Decimandi run thus, viz. That such a Sum had been always paid in plenam Contentationem, Satisfactionem & Exonerationem omnium & singularum Decimarum. And although the Sum be not paid, yet cannot the Parson sue for Tithes in kind; not for the Tithes in kind in the Ecclesiastical Court, but for the money in the Temporal. Trin 7 Jac. in the Case De modo Decimandi Prohibitions debated before the K. Coke, Select. Cas. 40, & 46. In Biggs Case it was Resolved, where a Prohibition is awarded upon a Suggestion of a Modus Decimandi, and a Consultation awarded for not proving the Suggestion within Six months, there a new Prohibition shall not be awarded upon an Appeal in the same Suit. More 1234. This Modus Decimandi refers only to the Reality, viz. the Tithes, and not to the Personalty, viz. the Offerings 
p March. 8 ●. . Nor can it begin at this day, but is and must be by Prescription, and is intended to have a lawful commencement upon some Agreement at first made for valuable Consideration with the Parson or Vicar 
q Mich 6 Jac. C. B. Mildman and Hut on's Case. . And if the Modus Decimandi be to pay a Sum of money for the Tithe of a piece of Ground, which is after turned to Houses and Gardens, the Modus continue 
r Co. 11. 16. . Yea, it doth so actually discharge and extinguish Tithes, that they are thereby turned into a Lay-Fee, as well as the Nine parts 
s Hob. 42. & Benloes 169. . Touching this Modus Decimandi there are some things that seem doubtful and unresolved in the Law; as if the Modus be of Land given to the Parson in satisfaction of Tithes, and the Land after happen to the evict, Q. if the Tithes in kind do not in such case revive? 
t Case Hooper verse. Andrews. Roll. Rep. . Or if Lands be once discharged of Tithes by a Modus Decimandi, Q. whether the Tithes shall revive again upon failure of the Modus? 
u Vid. Hob. 39  But if Land be granted to the Parson in satisfaction of Tithes, if the Parson alien the same without the consent of the Patron and Ordinary, his Successor shall have Juris Vtrum 
w dict. Cas. Hooper verse. Andrews.  If a man Prescribe to pay a Modus Decimandi for the Tithe of certain Lands, if the Land be afterwards let to Farm, and the Farmer pay the Tithe in kind, yet it shall not destroy the Prescription as to the Lessor 
x Pasch. 13 Jac. B. R. Case Mascall and Price. Roll. Rep. . If a Lessee pay Tithes in kind, yet that shall not destroy a Modus in the Lessor 
* Pasc. 13 Jac. per Coke. ibid. . But if the Modus Decimandi be of a thing for which no Tithe is due de Communi jure, it is not good; nor can it stand to rise and fall according to the Rent by Prescription: as of Houses in London 
y Hob. 1●. . That the Trial of Modus Decimandi (as the Common Lawyers affirm) belongs to the Temporal, not the Spiritual Courts, and for the grounds of Prohibitions in such case 
† Vid. The grand dispu●a before the K. between the Judges of both Laws. Trin. 7 Jac. Co. lib. 3. . If the Ecclesiastical Court allow not of any such thing as a Modus Decimandi, it is because the Canonists do hold Tithes to be due Jure Divino, and consequently not extinguishable in the whole, nor diminishable in part by any custom or Prescription in opposition to the Law of God. The Temporal Courts will admit them also to be Jure Divino, but do allow if so only Secundum quid, viz. quoad sustentationem Cleri, but not quoad Decimam aut aliquam aliam certam partem; and therefore do admit of a Modus as to the quantum, where there is a sufficient maintenance for the Clergy besides; which is not only allowed, but also confirmed by Act of Parliament 
* St. 2 Ed. 6. c. 13. . So that if the Lord of a manor grants parcel of his manor to a Parson in Fee to be quit and discharged of Tithes, and makes an Indenture, and the Parson with the assent of the Ordinary (without the Patron) grants to him, that he shall be discharged of Tithes of his manor for that parcel of Land; if afterwards the said Lord of a manor or his Assigns be sued in the Ecclesiastical Court for Tithes of his manor, he or his Assigns shall have a Prohibition upon that Deed; and therefore, if the Lord of the manor hath always holden his manor discharged of Tithes, and the Parson had time out of mind Lands in the same Parish of the Gift of the Lord, of which the Parson is seized at this day in Fee, in respect of which the Parson nor any of his Predecessors ever had received any Tithes of this manor: If the Parson now sueth for Tithes of this manor, the Owner of the manor shall show that Special matter, that the Parson and his Successors time out of mind have holden those Lands of the Gift of one who was Lord: and the same is good Evidence to prove the surmise in the Prohibition 
a 5 Jac. C. B. in the Case of Vodus Decima●di. Coke 〈…〉 Cases 14, & 46. . And in another Case of a Modus Decimandi it was holden by the Court, That if a Modus Decimandi be for Hay in Black-Acre, and the party soweth the same with Corn seven years together, the same doth not destroy the Modus Decimandi; but the same shall continue when the same is made again into Hay: And when it is sowed with Corn, the Parson shall have Tithen in kind, and when the same is Hay, the Vicar shall have the Tithes-Hay, if he be endowed of Hay 
b Trin. 10 Jac. C. B. Brown's Case. God b 194. . And where a Suit was in the Spiritual Court by a Defendant Vicar of A. for Tithes: a Prohibition was prayed upon the Plaintiffs Plea there of a Modus Decimandi, to pay so much yearly to the Parson of A. in discharge of his Tithes. It was the Opinion of the Court, That this Modus between him and the Parson will not discharge him from payment of Tithes to the Vicar, and therefore the Court granted a Consultation 
c Mich. 14 Jac. C. B. Winter and child's Case. Bulstr. 3. par. 220, 221. . Also if a Prescription be laid to pay a Modus Decimandi to 100 Acres, or to several things, if there be a failure of one Acre, or of one thing, it is a failure of the whole Prescription 
d adjudged 15 Car. in Sir Arthur Robinson Case. C●aytons Rep. 〈◊〉 135. .  
Monasteries under 200 l. per Ann. commonly called the Lesser Monasteries, of the Order of Gistertians and Praemonstratenses, that were Dissolved and came to the Crown by the Statute of 27 H. 8. were not discharged of the payment of Tithes by the Statute of 31 H. 8. c. 8. 
e ●●●es 373. 188.  by which Statute those of 200 l. per Ann. and upwards, commonly called the Greater abbeys, were Dissolved; and whereby it is Enacted, That the King and his Patentees, having any Monasteries, etc. or any manors, Lands, etc. belonging to them, should enjoy the same discharged of the payment of Tithes in as ample manner as the said Abbots, etc. 
f St. 31 H. 8. cap. 8.  who were discharged of Tithes either by Bulls, Compositions, Prescription, Order, or Unity of Possession. And albeit the Lands of the said Lesser Monasteries are not within the benefit of the said Statute of 31 H. 8. to be quit of Tithes; yet they ought to enjoy all such privileges as are annexed to the Lands, 
Vid. Sir Sim. D●gee's Law of Tithes. chap. 21.  for which reason they shall (in whose possession soever they are) be exempted from the payment of Tithes by real Compositions and Prescriptions de Modo Decimandi, though not by Prescriptions de non Decimando, Unity of Possession, Order, or Popish Bulls, in all which Cases the Parsons and Vicars have the advantage by the Dissoltion of all those Monasteries and abbeys, which were Dissolved by the Statute of 27 H. 8. For these Lesser Monasteries under 200 l. per An. which were (as aforesaid) Dissolved by the Statute of 27 H. 8. lost their privilege of being discharged of the payment of Tithes. Nor did the privilege extend to any Lands, other than such as they had at the time of the Council of Lateran, and only for such time as the same remained in their own possessions, and only for such Lands as were in their own manurance 
g 18 Eliz. Dyer 349. Co. 2. par 44. . It is said in Dickenson's Case against Greenhowe. That Monks are not of Evangelical Priesthood, viz. capable of Tithes in pernancy, but mere laymen, and cannot prescribe in non Decimando. And that Bede saith of them, That they are mere Laici, and the Monks of the Order of Praemonstratenses were such, and therefore they could not Prescribe to be Discharged of Tithes 
h Hill. 1 C●r. B. R. in Dichenson & Greenhowe's Case. Poph. 157. .  
Mortuaries, in some place called Coarse-Presents, though they are not Tithes, yet they were given Pro Recompensatione subtractionis Decimarum Personalium, nec non & Oblationum. Lindw. c. Statutum & infra, etc. for which reason they are not here omitted out of this Catalogue of Tithes. Mortuaries (as Sir Edw. Coke conceives) were not anciently due otherwise than by custom only 
i Co 2. par. Instit. 491. , until they were settled by the Statute of 21 H. 8. cap. 6. whereby it is Enacted, That no man dying possessed of Goods under the value of 6 l. 13 s. 4 d. should pay any Mortuary, nor any to be paid, but in such places where they used so to be, and that but one Mortuary; nor that, but in one place, and that where the party deceased had his most constant abode, and usual dwelling and habitation, after the rate following, viz. 3 s. 4 d. where the Deceased had in movables (his Debts first paid) to the value of 6 l. 13 s. 4 d. and under 30 l. at his death. 6 s. 8 d. if he died possessed of movables to the value of 30 l. and under 40 l. 10 s. if to the value of 40 l. or upwards. And none to be paid by any married Woman, Child Non-Housekeeper, Wayfaring-man, or Non-Resident in the place where he died. Which Statute provides, That accustomed Mortuaries should be paid as formerly, whether more or less than is before limited 
k Sr. 21 H. 8. c. 6. . There were also it seems certain Mortuaries, which the Prelates anciently paid to the Kings of this Realm 
l Co. Inst. 2. par. 491. .  
A Mortuary is not properly and originally said to be due to an Ecclesiastical Incumbent, Parson, or Vicar, from any but those only of his own Parish, to whom he ministereth Spiritual Instruction, and hath right to the Tithes. 
Vid. Spelm. Judicious Conjecture upon this point of Mortuaries, in his Treatise De Sepultura pag. 35.  Lindwood in his Gloss on c. Statutum, ver. ut infra, de Consuetud. discovers the ground or reason of that payment to be this, viz. That when through ignorance, and sometimes through negligence, and unjust detention of Tithes and Oblations the Parishioner was found tardy and faulty, etc. Ideo statuit Archiepiscopus, quod Compensatione sic subtractorum, secundum melius Animal defuncti Ecclesiae damno debuit applicari. But all this notwithstanding, we know the prevalency of custom to be such, that in some places of this Kingdom they are paid to the Incumbents of other Parishes, that perform no Ministerial duties at all to the deceased party, nor living nor dying. And the Statute of 21 H. 8. c. 6. doth nothing at all control the course, but makes the Usage of payment only to be the Law thereof.  
In the Case of a Prohibition, because the Defendant sued in the Consistory Court of Chester, before the Commissary, for a Mortuary, after the death of every Priest within'nt the Archdeaconry of Chester, 
Hind and the Bishop of Chester's Case. Cro. par. 3.  the best Horse or Mare, his Saddle, Bridle, Spurs, his best Gown, his best Signet or Ring, his best Hat, his best upper Garments under his Gown, as to the Bishop, de debito consuetudine fore supponitur, and recites the Statute of 21 H. 8. concerning Mortuaries. The Plaintiff averred, that there was no such custom there, and that she had paid a Mortuary to the Parson of B. and that after a Prohibition the Defendant had prosecuted his Suit in the Ecclesiastical Court. The Questions were, (1) Whether there was a custom in that place, to give such things for Mortuary? and this to be a just cause to have Prohibition; Mortuaries being only Triable in the Ecclesiastical Court. (2) Whether Consultation shall be granted without answering the Prohibition. The Court was divided in Opinions, wherefore ordered the Defendant should Plead or demur, and then the Court would give judgement upon the Return before them.   

N  
NAg or Riding Nag; if a man keep a Nag or Horse within the Parish only for his Saddle to ride on, no Tithes shall be paid of that Nag or Horse, for that it is a Barren Beast, not renewing, but kept only for Labour; 
Trin. 15 Jac. B. R. Lamkin Parson of Tbimblethorpe and Wild●'s Case.  and so Adjudged in the Parson of Thimblethorpe's Case, where the Case was, That a man Leased out certain Lands to another, reserving to himself the running of a Nag for his own Riding; and after the Lessor was sued in the Ecclesiastical Court for the Tithes of that Nag, and a Prohibition was granted by Montague, Crook, and Doderidge, for that it is a Barren Creature, and used only for Riding, (and although it was urged at the Bar, that the Lessee paid him Tithes for all the Herbage; but the Court took no advantage of that.) But Houghton seemed è contra; for it seemed to him, That no Barren cattle should be discharged of Tithes, other than such as are used for Husbandry. But that was not used for Husbandry, 
Cro. par. 2.  Ergo, etc. And in the Case of a Prohibition between Hampton and wild: It was Resolved, That Tithes shall be paid for Pasturage of a Gelding for his Saddle, or if it be sold; but not for Horses used only for Labour.  
In a Prohibition the Case was, M. the Defendant being Parson of D. did Libel in the Ecclesiastical Court for the Tithes of Sylva Caedua, and of the Herbage for depasturing of his Geldings: The Plaintiff there showed, that they were his Hackney Geldings, which he kept for his pleasure, and for himself and his Servants to ride upon, being his Saddle Horses: and this Plea being there refused, for this cause he prayed a Prohibition: The whole Court was clear of Opinion, That here was good cause for a Prohibition, for that these Horses are not Tithable, nor any Tithe-Herbage is to be paid for them; otherwise it were, if they had been Cart-Horses, which he had to Till his Ground, or for cattle bought, and Fatted to sell again for gain; for these he ought to be answerable to the Parson for the Herbage of them, but not for the Herbage of his Geldings by him kept and used only for his Pleasure; but it was for working Horses, for the Cart or Plough, or for Fat cattle, bought and and Fatted to sell again, 
Trin. 9 Jac. B. R. 〈◊〉 vers. May. Bulstr. par. 1.  of such cattle allowance is to be made for their Herbage, because that a Profit doth come in by them; but otherwise it is of Saddle-Horses: the whole Court agreed in this, and therefore in this Case, by the Rule of the Court, a Prohibition was granted.  
Nurseries of young Trees and Plants pay Tithes: If a man be seized of Land within a Parish, which used to pay Tithes, and a Nursery be made thereof for young Trees and Plants of divers kinds of Fruit, as Apples, Pears, Plums etc. Also of Ash, etc. and after sell divers of them to Strangers out of the Parish to be transplanted, he shall pay Tithes of that Nursery to the Parson; for although the young Trees are parcel of the Freehold, so long as they continue there, yet when they are transplanted, they are severed and taken from the Freehold; and if that should be permitted without payment of Tithes, the Parson might be defeated of the Tithes of all the Land in the Parish, by converting them into Nurseries. Hill. 14 Car. B. R. Gibbs & Wiburne adjudge. per Cur. upon a Demurrer and a Consultation granted accordingly. Intrat. Mich. 14 Car. Rot. 75. Cro. par. 3.   

O  
OAks beyond 20 years' growth, that are become dry and rotten, and thereby not fit for Timber, shall pay no Tithe, because they were once privileged. And if Oaks beyond 20 years' growth have been used to be topped and lopped within every 20 years, yet no Tithes shall be paid of these Tops and Branches cut within 20 years' growth, because their stock is discharged of Tithes. Trin. 38 Eliz. B. R. Ram & Patteson. Mich. 3 Jac. B. Brook & Rogers. & Co. 11. Samson & Worthington, 48. B. adjudge. It was also Resolved in Wray and clench's Case, That small Oaks under twenty years' growth, apt for Timber in time to come, shall not pay Tithes. Moor's Rep. Likewise Oaks topped within the age of 20 years, and after the Lop left to grow beyond 20 years, no Tithes shall be paid, for it is now become Timber. Mich. 10 Jac. B. per Coke. And Oaks decayed, that are not Timber, but converted to Firewood, shall notwithstanding not pay Tithes. More. Case 716.  
Oblations, Obventions, and Offerings, seem to be but one and the same thing, and are in a sense something of the nature of Tithes, being offered to God and his Church of things Real or Personal. Offerings are reckoned amongst Personal Tithes, and such as come by labour and industry, paid by Servants and others once a year to the Parson or Vicar, according to the custom of the Place; or they are to be paid in the place where the party dwells at such four Offering-days, as before the Statute of 2 & 3 Ed. 6. c. 13. within the space of four years then last passed had been used for the payment thereof, and in default thereof. Cro. 3. Abridg. Case 3159. In London Offerings are a Groat a House. They are by the Law now in force to be paid as formerly they have been. Vid. Stat. 32 H. 8. 7. 27 H. 8. 20. 2 & 3. Ed. 6. 13. & Co. 11. 16. They properly belong to the Parson or Vicar of that Church, where they are made. Of these some were free and voluntary, others by custom certain and obligatory. They were anciently due to the Parson of the Parish, that officiated at the Mother-Church or chapels that had Parochial Rights; but if they were paid to other chapels that had not any Parochial Rights, the Chaplains thereof were accountable for the same to the Parson of the Mother-Church. Lindw. c. the Oblation. & cap. quia quidam. Such Offerings as at this day are due to the Parson or Vicar at Sacraments, Marriages, Burials, or Churching of Women are only such as were confirmed by the Statute of 2 Ed. 6. 13. and payable by the Laws and customs of this Realm before the making of the said Statute, and are Recoverable only in the Ecclesiastical Court.  
Orchard, the Soil whereof is sowed with any Grain, the Parson may claim the Tithe thereof, as well as of the Fruit of the Trees, because they are of several kinds, and of distinct natures. Coke Magn. Chart. 652.   

P  
PArk, if converted into Tillage, shall pay Tithe in kind, for a Park is but a Liberty; a discharge therefore of the Tithes of a Park is not a discharge of the Tithes of the very Soil, which may be converted into Tillage 
a Sharp verse. Sharp. Nor. Rep. . Or if there be a Modus Decimandi of the Park, and the Park be disparked, and the Land converted into Tillage or Hop-ground, or the like; in this case though Tithes in kind are not payable, yet the Modus shall remain. The Case is the same, if the Park be disparked by having all the Pales fallen down, which in Law is a disparking of the Park. Sed Q. 
b Vid. Pasc. 19 Jac. C. B. Poole & Reynold's Case. . For to pay a Buck or a do, or the Shoulder of a Deer, when one is killed, may be a good Modus Decimandi for the Tithe of a Park. A Vicar having two shillings yearly, and the Shoulder of every third Deer killed in a Park, the Park being disparked, the Vicar sued for Tithes in kind. The Court was divided in Opinion: nichols and Hobart Justices, That notwithstanding the Disparking the Modus did remain: Winch and Warburton Justices, That by the Disparking the Prescription as to the Modus Decimand was determined, and that the Tithes should be paid in kind. Quaere 
c Cooper and Andrew's Case. . Where a Park is disparked, if the Park paid ten shillings, or any other Sum for all Tithes, and now disparked and sown with Corn, here only the ten shillings shall be paid; otherwise, if the Prescription be for the Deer and Herbage of the Park, and not for all the Park; for in such case Tithes in kind shall be paid, if it be disparked and sown with Corn. A Modus to pay so much money for the Tithe of a Park is good, though the Park be Disparked 
* Pasch. 13 Jac. B. R. Mas●hal & Priceper Co. Roll. Rep. . If one Shoulder of every Deer killed be Prescribed to be paid for all Tithes, and it be after Disparked, here the Tithe in kind shall be paid; or if the Prescription be to pay Ten shillings and a Shoulder of every Deer, and it be Disparked, here it shall pay Tithe in kind, and not the Ten shillings only 
d More. Case 1277, & Case 1186. . Upon a surmise of a Modus Decimandi to pay a Buck or a do for all Tithes of a Park, a Prohibition, was prayed, and granted 
e Hil. 6 Jac. C. B. The Vicar of Clares Case. . If a Modus Decimandi be to pay Two things, as Two shillings for a Park, and a Shoulder of every Buck killed in the Park, and all the Deer die, or are killed up, yet the Prescription holds good for the Two shillings 
f Hob. 43. . And although Tithes are to be paid for a Park, yet dear, as being Ferae naturae, are not Tithable, saving where the custom is otherwise 
g Roll. 1. 635. c. 4. 6, 7. Noy 108. Sr. 2 Ed. 6. c. 13. . In Thursbie's Case, where Suit was for Tithe-Corn growing in a Park lately Disparked, the Defendant pleading a custom to pay Venison in lieu of all Tithes, and Proof that a Buck was paid yearly, but whether out of this Park or not was a Non constat: The Jury found, That if it was paid out of any Park, and accepted and allowed, this was better to uphold the custom, than if particularly tied to pay a Deer out of this Park; for now, if the Park be disparked, yet this payment of the Deer may be performed: Otherwise, it is, if the custom had been a Deer out of this Park only, for then by the destroying of that, the custom is gone also. It was holden in this Case by the Judges, That although the Deer had been often, and for the most part paid out of this Park, yet this doth not alter the custom, if it may be paid out of any Park; and if the custom were to pay a Shoulder of Venison generally, it may come out of any Park 
h 13 Car. at York Assize Tour●btes Cas. Clayt. Rep. 91. .  
Partridges made Tame, do pay not a Predial, but a Personal Tithe.  
Pasture yields a Predial Tithe, which is generally paid by the Owner thereof, and so is the custom; yet Pasture-grounds said with cattle that yield profit to the Church, have their Tithe satisfied in the Fruit of the Beasts. And if they belong to a Stranger who is not of the Parish, if he fell the Pasturage, he is answerable for the Tenth penny; but if he frankly giveth it, and the Parishioner freely receiveth it, the Parishioner is answerable for the Estimation, if the said Grounds be fed with Beasts yielding increase; otherwise no Profit at all to the Church, if said only with Horses, Oxen, and other Barren Beasts. And as touching the Pasture of the Horses of Guests, the Tithe is to be paid by the Innkeeper for the same 
i Tr. 16 Car. B. R. Richardson & Caleb's Case. Poph. 143. . But if the said Horses be put into such Pasture, as is after a Crop of Hay of the same ground, no Tithe is payable by the Innkeeper for the same 
k Ibid. . Nor is the Pasture of such Horses Tithable as the Parishioner useth for his own Riding, nor the Pasture of such Horses as are used about Husbandry in the Parish; but where Horses are kept or bred in Pasture that they may be sold, in that case Tithe shall be paid for the Pasture thereof 
l Hil. 15 Jac. B. R. Hide's Case. & Bulstr. 1. 171. . But if Tithe be demanded for the Pasture of Riding Nags for the Saddle, for Labour and Pleasure both, but not for Profit properly, a Prohibition will lie 
m Tr. 9 Jac. B. R. Pothill & May's Cas. Adjudge acc. Bulstr. ibid. . Nor is the Pasture of Oxen used for Husbandry Tithable, that is, being used for Husbandry in the same Parish; it may be otherwise, if they be used for other purposes, or for Husbandry out of the Parish. Mich. 8 Jac. C. B. in Baxter's Case. And as touching Tithe of the Pasture of Guest-Horses by an Innkeeper, as hath been formerly mentioned; the Case was, A. Parson of B. Libelled in the Ecclesiastical Court against C. an innkeeper, because that the said C. took all the benefit of his Pasture, by putting Guest-Horses into the same: whereupon C. prayed a Prohibition, but it was denied by the Court; for that it is Tithable in this case. But it was said, That if C. had taken a Crop of Hay, whereof he paid Tithe, and afterwards had put in his Guest-Horses into the After-pasture of that Ground where such Hay was made; in that case it had not been Tithable, because the Parson had Tithe of the Land before. Trin. 16 Car. B. R. Richardson and Cobbell's Case. Poph. 142. Also if a man let out his Pasture, reserving the Pasture of a Horse for himself to ride about his Husbandry-affairs, Tithe shall not be paid for the Pasture of this Horse; but if a man keep and breed Horses in his Pasture to sell them, there Tithe shall be paid for the Pasture of such Horses. Trin. 15 Jac. B. R. Larking and Wild's Case. Poph. 126. Vid. Trin. 9 Jac. B. R. Pothill and May's Case. Bulstr. par. 1. 171. Vid. Agistment. Vid. Grass.  
Pease gathered Green, to eat in the Parishioners Family, no Tithe shall be paid thereof, and that per legem terrae: But otherwise it is in case they be gathered to sell, or to feed Swine therewith, in which Tithe shall be paid thereof. Pasch. 12 Jac. B. per Cur.  
Pelts or Fells of Sheep dying of the Rot are not Tithable without a special Prescription for it: The Case was, A. Libelled in the Ecclesiastical Court for the Tithes of Pelts and Fells of Sheep, which Sheep died of the Rot; a Prohibition was prayed, and granted, to stay proceed in the Ecclesiastical Court, because such Pelts are not Tithable, unless there be a Special custom for it. Trin. 3. Jac. B. R. Ashton and Willer's Case.  
Pheasants that are Tame, pay a Personal, not a Predial Tithe. If a man hath Pheasants, and keep them in an enclosed Wood, and clip their wings, and they hatch Eggs, and breed up young Pheasants, no Tithes shall be paid of these Eggs or young Pheasants, for that they are not reclaimed, but continue to be Ferae naturae, and would go out of the enclosure, if their Wings were not clipped; and in this case Prohibition hath been granted between Winbrook and Evans, Mich. 11 Car. B. R. It was surmised, That no Tithes are paid of them in a great Circuit called the Chiltern in the same County, viz. of Bucks, and so Prescribe in non Decimando; but the Court granted the Prohibition, for that they are Ferae naturae.  
Pigeons are Tithable, Mores Abr. 1270. But if a man keep a Family, and hath Pidgeon-holes about his House, and he keep some pigeons, and he kill and spend in his House the young pigeons that are bred there, he shall not pay any Tithes for them: In this Case between Vincent and Tutt, Hill. 13 Car. B. a Prohibition was granted, and upon the parson's Plea, that the Parishioner sold them, a Consultation. For Tithes of pigeons no Prohibition lies, as was Resolved in Jones and Gastrell's Case. Hill. 15 Jac. B. R. Roll. Rep. For the Court there said, That Tithes ought to be paid of pigeons, and for coneys, per Doderidge Justice, to which the Court agreed. In the Case of a Prohibition for suing for Tithe- pigeons, the Defendant in the Ecclesiastical Court pleaded payment, they refuse the validity of that Plea without Proof by two Witnesses: the Court said, it would be a great inconvenience to bring two Witnesses to prove payment of every sort of Tithes, wherefore a Prohibition was granted. Malary and Mariots Case. Cro. par. 1. And in another Case a Prohibition was prayed, where the Parson sued in the Ecclesiastical Court for Tithe of pigeons, and awarded to stand, because the Court there would not allow the proof without two Witnesses. More's Abr. Case 1208. Probably the same Case with the former. Vid. Doves.  
Pigs, if there be but Nine, as also Calves, if there be but six, and the like, under the number of Ten in one year, the Parson can have no Tithe thereof in kind that year, without a Special custom for it; but must have his Tithe pro rata either in money the same year, if there be any custom for it, or in kind the next year, reckoning both years together. Mich. 7 Jac. C. B. Pigs are accounted a Predial mixed Tithes. Mich. 8 Jac. C. B.  
Pits of Stone, Lime, Gravel, Marble, Marle, Chalk, Cole, and the like, are not Tithable; for the Land must not pay a double Tithe. Regist. 51. F. N. B. 53. 9 Broo. dimes 18.  
Plants or young Plants transplanted, are in some cases Tithable; for the Case was, A man had a Nursery of young Plants in his ground, and used to transplant them, and to give or sell them to others, who planted them de novo in their ground out of the Parish; the Parson of the Parish, where the Land lay in which they were first planted, Libelled in the Ecclesiastical Court for the Tithes of the value of the said Plants transplanted, and a Prohibition was granted, and Declaration thereon given, and a Plea given in, and Replication, and thereon Demurrer; and it was argued by Maynard for the Defendant, and Rolls for the Plaintiff: The only point was, Whether Tithes should be paid in that case; it was Resolved per totam Curiam, that it ought to be paid; and thereupon a Consultation was granted 
t Hill. 14 Car. B. R. Gibs verse. Wyborne Jones Rep. . The Case had been otherwise Resolved, if the said Plants so transplanted from the said Nursery had been replanted in the same Parish 
u Ibid. .  
Prescription, which refers to a certain person, House, Land, or other thing, as custom doth to a County, City, Town, Hundred, etc. may be considered under two respects, either de Modo Decimandi, or de non Decimando: There is also in some Counties a Decimando res non Decimabiles, a Tithing of things in their own nature not Tithable, as the Tithing of Tin and Sea-Fish in Cornwall and Devon, led in Derbyshire, etc. but this is by custom, not by Prescription, which though in respect of Place is regularly of a more extensive latitude than properly custom is, yet in respect of Persons and Things is regularly under more Restrictive limitations than the other; but as to their Origination, they both aught to be continually-constant without interruption; and as to their Antiquity, both of them ought to be of a more Ancient date, than any Memory of man can contradict; and such being once duly acquired, there are not many interruptions or disturbances that will null or frustrate the same 
w Co. par. 1. Inst. 14. 2. par. 653, 654. . A Prescription goeth to one man, and a custom to many. Hill. 6. Jac. rot. 2613. Rolls verse. Mason, Brownl. Rep. par. 1. Prescription is Personal, and always made in the name of a certain person, or his Ancestors, or those whose Estates, etc. But a custom is Local, and alleged in no person, but that, within the manor there is such a custom. Co. 4. Foiston & Cratchwood's Case. The payment of a Sum of money or other thing in lieu and recompense of Tithe for sixty years or thereabouts, is held a reasonable time to make a Prescription 
x Co. super Littl. 14. & Crompt. Jur. 77. Dyer 7, 9 . It was Adjudged in Grisman and jews Case, That a Prescription to pay Tithes of one thing in recompense of Tithes of another thing, is not good. Adjudged also, that Tithes shall be paid of Agistment of cattle, against the Opinion of Fitz. 53. Cro. par. 1. This Prescription is Real, that is, it respects not the New or never before Tithed Fruits, but the Tithable grounds that produce them; thence it is, that an alteration of Grain or Plants in the same Ground altars not a Prescription, but he that Prescribes in the one, shall Prescribe in the other also. Yet a Prescription extends to no more than is in possession: And therefore if the Parson of A. Prescribes to the Tithes of the Parish of B. and there happen to be Decimae Novalium, that is, Tithes arising of such Grounds as were never Manured, nor yielded before any profit to the Church, the Parson of B. and not the Parson of A. shall have them; nor will Prescription lie against a Composition between the Parson and the Vicar 
y More. Case 1881. ; nor hath Prescription any place, where the Interessed (in his right) can make no demand, the matter ceasing, whereupon it should work: So of Wood never cut, the Tithe could never be demanded. Regularly a Prescription to pay no Tithe, nor any thing in lieu thereof, is not good, nor will it discharge, though nothing can be proved to have been paid within the Memory of man 
z Dr. & St. 171. 167. Broo. Prescrip. 92. Co. 244. . Yet a Discharge of Land from Tithes may be showed another way, which will amount to the payment of no Tithe: so that although a mere layman cannot Prescribe in non Decimando 
a Co. 2. par. Bish. of Winchest. Case. & in 8 Ed. 4. 14. by Choke. ; yet he may Prescribe in modo Decimandi, to pay a Composition to the Parson in lieu of all his Tithes; and such Composition shall bind the Parson, and such a Prescription shall be good 
b adjudge. Mich. . But as to persons Ecclesiastical, such may Prescribe not only in modo Decimandi, but also in non Decimando, and so may their Tenants, whence it is, that a Parson of one Parish having part of his Glebe in another, may Prescribe in non Decimando for the same 
c Roll. 1. 653. H. 3. . So that a Prescription even de non Decimando as for Ecclesiastical persons, their Farmers and Tenants may be good 
d More. Case 498, & 693. . In Nash and Molin's Case it was agreed by the Court, That a Spiritual man may Prescribe in Non Decimando. Cro. par. 1. And as for any other person a Prescription de modo Decimandi, that is, to pay Money or other things in lieu of Tithes in kind, is good; and if he can prove it Time out of mind, this will discharge him 
e Co. 1. 44, 46. . Thus a Prescription to pay 4 d. or any other Sum for all his Tithe whatever, or for all his Tithe-Hay, or for all his Tithe-Corn in such a Farm, or in such a Close, or for all his Fruit in such an Orchard, is good. But a Prescription of paying no Tithe-Corn, because he pays Tithe-Hay; or of paying no Tithe of his cattle, because he pays Tithe-Corn, is no good Prescription 
f H. l 8 Jac. ●. R. Smith's Case. . Or of not paying of Tithes in one place, because he pays in another; or of not paying Tithe-Lamb, because he pays Tithe-Wool, vel è contra; or of not paying Tithe for other cattle, because he pays 12 d. for a Cow: these and the like are no good Prescriptions 
g 7 Jac. C. P. in Fleewood's Case. . Yet a Prescription to pay a less part than a Tenth, may be good and binding. Also a Prescription to pay a penny, called hearthpeny, in satisfaction of Tithe for all Combustible Wood, may be good 
h More. Case 1280. . Likewise, a Prescription by the Lord of a manor, to pay six pound in satisfaction of all the Tithe-Corn within the manor, and to have the Tenth Sheaf or Cock in recompense of his payment, is good 
i More. Case 685. . But if the Prescription be to be discharged of Tithe-Hay of such a ground, or Tithe-Corn of such a ground, and the Owner change the nature of the Ground, as Pasture into Tillage, or Tillage into Pasture, the Prescription is gone 
k Hil. 7 Jac. B. R. Shipton's Case. Adj. . Yet a Prescription is not destroyed by an Alteration of payment, as if instead of the money to be paid, another sum, or Tithes in kind, have been paid for 20 years past 
l Co. upon Littl. 14. Dyer 7. . But a Prescription to have Tithes of Houses according to the Rent, is not good; for no Tithes are to be paid for Houses in any City, save in London only 
m Hob. 11. . Regularly Prescription refers to one in private, as custom does to many in public; and where a Prescription de modo Decimandi is denied, there a Prohibition will lie to try it at the Common Law: otherwise, if the Prescription or custom be agreed 
n Hob. 247. . If a Prescription by a Parishioner be to pay the Tenth part of Corn as a Modus Decimandi for the Hay also that grows on the Headlands, it is not good; but such Prescription for the Corn and After-Rakings is good, with an averment, That they are sparsae minus voluntary 
o Mich. 2 Jac. B. R. Rot. 346. Case Parry verse. Chaunsey. Noy. Rep. . If there be a Prescription of a Modus Decimandi for an Orchard or Garden, and it afterwards ceases to be such, the Modus shall cease also, and Tithe shall be paid in kind; but if it afterwards be restored to a Garden or Orchard, by being replenished with Herbs or Fruit-Trees, it shall pay the Modus as formerly 
p Hil. 12 Jac. B. R. C. Hooper verse. Andrews Rol. Rep. . If the Modus be to pay two shillings and the Shoulder of three Deer for a Park, the Modus remains, though the Park be disparked; it is otherwise, in case the Modus be only to pay Venison 
q Ibid. . Or if the Prescription be to pay a certain Sum of money for all the Tithes of a Park, the Modus shall continue, though the Park be afterwards disparked 
r P. 13 Jac. B. R. C. Maschal & Price. Rol. Rep. . A Prescription of a Modus Decimandi generally for a Park is not good, if it be Disparked; but it shall be particularly for all Acres contained in the Park 
s Co. vouched in one Shibdens case Noy. Rep. Sharp verse. Sharp. . Prescription being a Temporal thing, is Triable only in the Temporal Courts; and therefore in the Case of Two Parsons of Two several Parishes, where one of them claimed Tithe within the Parish of the other, and said, That all his Predecessors, Parsons of such a Church, viz. of D. had used to have the Tithe of such Lands within the Parish of S. and pleaded the same in the Spiritual Court. The Court was of Opinion, That in this Case a Prohibition did lie, for he claims only a portion of Tithes, and that by Prescription, and not merely as Parson, or by reason of the Parsonage, but by a Collateral cause, scil. Prescription, which is a Temporal cause and thing 
t Vid. 35 H. 6. Bro. Preser. 3. Mich. 29 Eliz. B. R. God b 45. . And in another Case it hath been Adjudged, That if a Prescription be laid to pay a Modus Decimandi to 100 Acres, or to several things, if there be a failure of one Acre, or of one thing, it is a failure of the whole Prescription 
u 15 Car. Sr. A th'. Robinson's Case. vid. Clayr. Rep §. 135. . But where it hath been Prescribed to pay in one part of the Land, the Third part of the Tenth; and in another part, the moiety of the Tenth for all manner of Tithes, it hath been held a good Prescription, 
w Hill. 29 Eliz. B. R. Books Case. Godb. 120. . These Prescriptions de modo Decimandi are equally incident as well to lay-people, as to persons Spiritual or Ecclesiastical; but as to Prescriptions de non Decimando, none but Spiritual persons are capable of being discharged of Tithes in that kind, as was Resolved in the Bishop of Winchester's Case 
x Co. 2. par. Bish. of Winchester's Case. . Yet a whole country or County may Prescribe de non Decimando, though this or that particular mere layman cannot 
y Case ibid. & Dr. & Stu. 167. ; nor indeed can the other, unless there be sufficient Maintenance for the Clergy besides 
z Dr. & St. ibid. . The Prescriptions de modo Decimandi are confirmed by Act of Parliament 
a St. 2 Ed. 6. c. 13. ; and if any layman will Prescribe de non Decimando, to be absolutely discharged from the payment of Tithes, without paying any thing else in lieu thereof, he must Found it in some Religious or Ecclesiastical person, and derive his Title to it by Act of Parliament 
b Seld. Hist. Decim. 409. Roll. 1. 653. H. ; and it is not sufficient to say, That they who Prescribe de non Decimando, are Churchwardens who have Land belonging to their Church, for they are neither Religious nor Spiritual persons 
c Roll. ibid. : But they who are such indeed, may so Prescribe not only for themselves, but also for their Tenants and Farmers 
d Roll. ibid. H. 4. & Co. 2. 45. a. , as was formerly said. So also may the King's Patentees of those Abbey-Lands that came to the Crown by the Statute of 31 H. 8. Prescribe de non Decimando, by force of the said Statute, if so be it may be proved, That they have beyond the Memory of man so enjoyed the Lands discharged from the payment of Tithes: But for a Parishioner to Prescribe to nonpayment of Tithes, because he hath Time out of mind repaired the Church, is no good Prescription: otherwise, in case he had repaired the Chancel, and in consideration thereof had been quit of Tithes; the Reason is, because the Parson not being obliged to repair the Church, hath no recompense 
c Roll. 1. 649. d. 8, 9 vid. Law of Tithes, c. 16. . And in Sherwood and Winchcombs Case it was Resolved, That a man cannot Prescribe to have Tithes as parcel of a manor, for that they are Spiritual; but a Prescription to have Decimam partem granorum, is good. Cro. par. 1. In a Case for a Prohibition; A. Libelled in the Ecclesiastical Court for Tithes of rough Hay growing in Marshes and Fenny-grounds in M. The Plaintiff surmised, That there was 2000 Acres of Fenny-Lands within the Parish, and 600 Acres of Meadow, and that the Parishioners paid Tithes of Hay and Grain, growing upon the Meadow and Arable Land, and had paid a certain Rate for every Cow, and because they had not sufficient Grass to keep their cattle in Winter, they used to gather this Hay, called Fenny-Fodder, for the subsistence of their Beasts for the better increase of their Husbandry; and for this cause had been always freed from the payment of the Tithes thereof. It was Resolved, That the surmise was not sufficient for a Prohibition; for one may not Prescribe in non Decimando, and their alleging, That they bestowed it on their cattle, is not a cause of Discharge: A Consultation was awarded. Webb and Sir Hen. Warners Case. Cro. par. 1. Also in Monday and Levice's Case in a Prohibition, it was Adjudged, That it was not a good Prescription that Inhabitants have used to pay Calves and Lambs, and a penny for every Milch-Cow, in satisfaction of all Tithes of Lambs, Calves, milk-cows, and all Barren and other Beasts, and Agistments. More's Rep. And where a Parson sued for Tithes of Fodder, and the Parishioners Prescribed in Non Decimando, because the Fodder was for their cattle which manured their Land: It was held no good Prescription; but it was Agreed, Tithes should not be paid for their Agistments, nor for Hedge-wood to enclose the Corn, nor for Fuel. More, ibid. Case 892. In the Case between Pigott and Hearne, the Lord of the manor of B. in the Parish of D. did Prescribe, That he and his Ancestors, and all those whose Estates, etc. had used from time to time, whereof, etc. to pay to the Parson of D. the now plaintiff, and his Predecessors 6 l. per Ann. for all manner of Tithes growing within the said Parish; and that by reason thereof, he and all those whose Estates, etc. Lords of the said manor, had used time whereof, etc. to have Decimam Garbam & decimum Cumulum Garbarum of all his Tenements within the said manor. It was in this Case Resolved, (1) That it was a good Prescription, and that a Modus Decimandi for the Lord by himself, and all the Tenants of his manor, for barring the Parson to demand Tithes in kind, is a good Prescription, because it might have a lawful Commencement. (2) It was Resolved, That it was a good Prescription to have Decimam garbam & decimum Cumulum garbarum vel granorum, or the Tenth shock; for he hath it as a Profit Appender, and not as Tithes. (3) Resolved in this Case, That if the Queen be Lady of the manor, she may Prescribe to have Tithes, for that she is capable of them, she being Persona Mixta & Capax Spiritualis Jurisdictionis. More's Rep. And in Green and Handlyes' Case it was Resolved, (1) That it is a good custom to pay the Tithe-Wool at Lammassday, though it be due upon the clipping. (2) That for the Pasturage of young Barren cattle preserved for the Plough and Pail, no Tithe shall be paid. (3) That a Prescription to pay a penny called a hearthpeny, in satisfaction of the Tithe of all Combustible Wood, is a good Prescription. More. Case 1213.  
Privilege is derived from the supreme Authority upon good Consideration, and refers sometimes to Persons, sometimes to Places, and is an exemption from Tithes derived from such supreme Authority. None are to pay Tithes for Lands privileged or lawfully discharged from the payment thereof. Stat. 2 Ed. 6. c. 13. yet such privileges as are merely Personal, do not exempt Lands from the payment of Tithes, longer than they are in the hands or occupation of privileged persons.   

Q  
QVarries of Stone are not Tithable. Adjudged Mich. 19 Eliz. B. R. & Pasch. 34 Eliz. C. B. Liff and Watts Case. Cro. par. 1. & More's Rep. Nor do the Quarries of Slate, Cole, or the like pay any Tithe. More. Case 1275. Nor Quarries of Lime, Gravel, Sand, or Clay, for these are parcel of the Inheritance. Regist. 55. F. N. B. 53. Broo. dimes 18. Mich. 15 Car. B. R. Skinner 's Case. No Tithes shall be paid of Quarries, for they are parcel of the Freehold. Hill. 11 Jac. B. R. per Curiam.   

R  
RAkings of the Stubble of Corn or Grain are not Tithable, for they are to be left for the Poor and Orphans, and the Law will not give to the Parson or Vicar Tithe of that which is appointed for Alms. Mich. 6 Jac. C. B. Smith's Case. & Pasch. 7 Jac. C. B. adjudge. Cro. 1. 660. So that whereas it is said, that the Rakings of the Stubble of Corn is not Tithable, where the Corn itself was Tithed. More. Case 433. It may not be understood as if the Tithing the Corn itself were the Reason why the Rakings are not Tithable, but because they are by the Law of Moses 
f leu. 23. 22. . due to the Poor, and therefore not to be Tithed; understand this also of Ordinary Rakings not voluntarily scattered, for of such only it is that no Tithes shall be paid, as not due by the Levitical Law, and for that they are but the scattering of the Grain whereof he had paid Tithes before. Pasch. 7 Jac. B. per Curiam. Hill. 8 Car. B. R. Saunders & Paramour, per Cur. Trin. 3 Jac. B. R. Pasch. 14 Jac. B. R. Pitt and Harris, Prohibition granted; otherwise it is, in case the Rakings were voluntarily and fraudulently scattered. Hill. 14 Jac. B. R. Perk and Harris per Cur. Adjudged. Mich. 3 Jac. B. R. per Popham. Pasch. 7 Jac. per Cur. Mich. 14 Jac. B. R. Joyse & Parker. And where there is a Prohibition of Tithes of Rakings, the Suggestion ought to be, That they were Minus voluntary sparsae, otherwise it is not good; for it is not sufficient to say, That they were Lapsae & dissipatae in Collectione. 
Dict. Cas. Perk & Harris. Cro p. 1. . And it was Resolved in Johnson and Awbrey's Case, That Tithes are not to be paid for After-pasture of Land, nor for Rakings of Corn. Also in Green and Hunn's Case, a Prohibition was for suing for the Tithes of Rakings of Barley, a Prescription to make the Barley into Cocks being alleged, and to pay the Tenth Cock in satisfaction of all Tithes of Barley, and Adjudged a good Prescription. Notwithstanding in the Case between Bird and adam's, in a Prohibition to stay a Suit in the Ecclesiastical Court for Tithes of the Rakings of Lands, after the Crop of Corn was taken away: It was held, That the Prohibition would not lie, but that Tithes should be paid of Rakings. More's Rep. But vid. 42 Eliz. B. R. in Green and Hale's Case, it was Adjudged, That by the custom of the Realm Tithes should not be paid of Rakings. Also in Green and Handlye's Case it was Resolved, That Tithes should not be paid of the Rakings of Corn, unless it be a Covinous Raking to deceive the Parson. More. Case 1213.  
Rate-Tithe is that which is paid according to the custom of the place, for the Feeding of Sheep and all other cattle (except Labouring Oxen and young breed of cattle) for the Pasture and Increase thereof, whether they fed on the Common or elsewhere.  
Roots of Coppice-Woods grubbed up, shall not pay Tithe, unless it be by custom, as hath been Adjudged in Skinner's Case. Mich. 15 Car. B. R. & Marsh. 58. In which Case it was also Resolved, That if a man cut a Coppice-wood, and thereof pays the Tithe, and after before any new Sprouts grow, he grubbs up the Roots and Stubbs of the Wood, he shall not pay Tithes thereof, for they are parcel of the freehold 
g dict. Cas. Bedford & Dr. Skinner. per Cur. .   

S  
SAffron pays a Predial Tithe, and is inter Minutas Decimas, as appears by Bedingfield and Feaks Case, Pasch. 38 Eliz. B. R. Where the Farmer of a Parsonage sued in the Ecclesiastical Court for Tithes of Saffron against the Vicar: the Vicar pleaded, That he and his Predecessors Time out of mind had had the Tithe of all Saffron growing within the Parish. The Plaintiff pleaded, That the Land where the Saffron was growing this year, had been for 40 years before sowed with Corn; and because they in the Ecclesiastical Court would not allow the Plea, a Prohibition was prayed; because the Right of the Tithe did come in debate. It was Adjudged, That a Consultation shall be awarded. Yet Mich. 10 Jac. B. R. per Curiam, they are said to be Great Tithes. Vid. Bedingfield & Feaks Case. Cro par. 1. Whence it may be observed, That by the Ecclesiastical Law, the Vicar shall have Tithe of Saffron of Land newly sowed with Saffron, albeit the Parson before had Tithe of the same Land being sowed with Corn 
a Mich. 31 Eliz. B. R. Bedingfield & Feaks Case. Goldesbr. 149, 150. & More. Rep. Case 1209. .  
Salt: By custom Tithe shall be paid of White Salt. Trin. 16 Jac. B. R. Case Jones & Gower, Admit. But Prohibition granted on a Modus.  
Sheep, if they continue in the Parish all the year, the Tithe thereof in kind may be claimed by custom; but if they be sold before Shearing-time, and a halfpenny be then claimed to be paid for every Sheep so sold, it is held a very unreasonable custom 
b Pasch. 17 Car. C. B. Weeden & Harding's C. Vid. Mich. 2 Car. B. R. Poph. Rep. 197. acc. Marsh. 79. . If Sheep stray out of one Parish into another, and there yean, no Tithe is payable for this to the Parson of that place; but if they go there for thirty days or more, for this a Rate-Tithe is payable to that place; for, for Sheep removed from one Parish to another, each Parson must have Tithe pro rata: But under thirty days no Rate-Tithe is to be paid. Likewise Sheep Feeding all the year in one Parish, and Couching in another, the Tithe shall be equally divided betwixt the Parsons. So likewise if Sheep go a while in one, and another while in another Parish, a Rate-Tithe is payable, as aforesaid, to both. But if Sheep are brought only by Night to dung the Land, no Tithe there is to be paid, unless they Feed there half their time. And if Sheep be brought from one place to be shorn in another, where they were not before, the Tithe is payable where the shearing is, unless it be paid to the Parson of the place from whence they came. Trin. 3 Car. B. R. in a Prohibition inter Ashton and Willer. And where several men's Sheep feed in one Flock under one Sphepheard, they shall be severally Tithed by their respective Owners. Lindw. c. Quoniam propter, verb. Lanae. A Prohibition was prayed, because the Parson Libelled in the Spiritual Court for the Tenth part of a Bargain of Sheep, which had depastured in the Parish from Michaelmass to Lady-day: the party surmised, That he would pay the Tenth part of the Wool of them, according to the custom of the Parish: The Court would not grant a Prohibition, for that, by this way, the Parson might be defrauded of all, and the Sheep being now gone to another Parish, he cannot have any Wool at this time, because it was not the time of Shearing 
c Mich. 2 Car. B. R. Hob. 197. .  
Spoliation or the Action thereof, may be commenced in the Ecclesiastical Court, where one Parson takes away the Tithes or Profits belonging to the Church of another Parson, if the Tithes and Profits belonging to the Church of that other Parish, do not amount to the Fourth part of the value of the Church, in which case the one Parson shall have a Spoliation against the other in the Ecclesiastical Court, although they claim by several Patrons; and if they claim both by one Patron, there the one shall have a Spoliation against the other, although the Profits do amount to above a Fourth part, as to a Third part, or to the moiety of the Church, because the Patronage doth not come in debate. But if the Profits do amount to above the Fourth part of the Church, and they claim by several Patrons, that if one Parson sueth a Spoliation in the Ecclesiastical Court against the other, the party grieved shall have an Indicavit, which is in the nature of a Prohibition, unto the Ecclesiastical Court, because the Right of the Patron doth come into debate: But where the Right of Tithes doth only come into Debate, and not the Patronage, there the Jurisdiction doth belong unto the Ecclesiastical Court. Co. Select Cases, in the Case de Modo Decimandi 38, 39, 40, 46. 38 H. 6. 20. by Fortescue, 26 H. 8. 3. acc. And if there be a Contention De jure Decimarum, Originem habens de jure Patronatus, tunc spectat ad Legem Civilem, by the Opinion of all the Justices. Mich. 29 El. B. R. in Bushie the Vicar of Paucas Case. Godbolt. 63.  
Sylva Caedua doth pay a Real and Predial Tithe; by Sylva Caedua is to be understood, all such Trees of what kind soever, as may be cut, and being cut do grow again from the Stock or Root. Lindw. c. Quanquam ex Solventibus, lib. 5. Or all such Wood as may be cut, and (after Lopping, Topping, or cutting from the Boughs, Branches, 
50 Ed. 3. 10. b6 Belknap. . Stock, or Root) do grow again; by which are excepted Great Trees and Timber-Trees. So that of Sylva Caedua and Underwoods' Tithes are payable; but not of Great Trees, or of twenty years' growth, and that by the Statute of 45 Ed. 3. cap. 3. Whereby a Prohibition will lie, 
Vid. Co. 2. par. Inst. 643, 644. Seldens Hist. Decim. 236. Rol. 1. 1. 637, 638, 639.  in case, etc. which Statute exempteth Wood of twenty years' growth and upwards from the payment of Tithes, as Prescription doth such Wood as hath not been felled in the Memory of man; yet Wood of the age aforesaid, not in use nor apt for Timber, is (under permission of the said Statute) Tithable Body and Bough, Felled or Lopped: And such Woods as are not Sylva Caedua nor Tithable, go under the notion of Gross Woods, or Great Wood, viz. such as are usually employed for the building of Houses, Mills, etc. as hath been Resolved 
d Co. 2. par. Inst. 643. , of which sort are Oak, Ash, Elm, Beech, Horn bean, and Asp 
e Plow. 470. a. b. : Yet if these be cut under 21 years' growth, they are accuonted Sylva Caedua, and aught to pay Tithes. But the Loppings of great Oaks, Ashes, etc. though the Lops be under twenty years' growth, shall not pay Tithes, being privileged by the Bodies 
f Co. ubi supra. ; nor are the Shoots and Underwood growing from the Roots and Stocks of such Timber-Trees Tithable, or from the Roots and Stocks of Trees above the growth of 20 years, which have been felled 
g More. 762. Plow. 470. b. Rol. 1. 640. q. 1. 3, 4. Co. 11. 49. a. . Vid. Trees, Wood, Vnderwoods', and Timber.   

T  
TAres, or Green Tares, cut before they are Ripe, or mowed when they are green, for the Feeding of cattle, when Suit hath been commenced in the Ecclesiastical Court for Tithes thereof, a Prohibition hath been granted upon a Suggestion grounded upon special customs, that no Tithes ought to be paid for the same. Fetches, Tares, and other course Grain, eaten only by the cattle which do the Husbandry-work in the place, pay no Tithe, except there be a Special custom for it. Lane 16. Notwithstanding, whether they are Tithable or not, if cut for Horses is a Question; for where upon a Libel in the Ecclesiastical Court for Tithes of Green Tares cut for seeding of Labouring Horses, it was moved for a Prohibition, it was not granted upon such a general Suggestion, it being no ground for it: Otherwise, upon the custom of the Parish, That no Tithe hath been paid in such case 
a Mich. 7 Car. B. R. Mead verse. Thu●m●n. Jones Rep. . It was Mead and Thurman's Case, which is elsewhere Reported, That a Prohibition was prayed upon a Suggestion of this custom, That for Tares cut or mown before they are ripe, and given to plough-cattels, Tithes ought not to be paid: And another custom for Headlands sown with Corn, used to be fed with plough-cattels, or mowed or cut for that purpose, that the Owners should be discharged of Tithes. It was holden by the Court, That this Suggestion grounded upon a Special custom was good: and the parties being sued for the Tithes of the premises in the Sp. Court, the Court granted a Prohibition 
b Hil. 10 Ca●. B. R. Mead & Thurman's C. Cro. 1. pa. 285.   
Timber-Trees, that have been usually topped and Lop'd, such Toppings and Loppings are not Tithable; for the Law that doth privilege the Body of the Tree, doth privilege also the Branches thereof. The Law is the same, if the Tree become Rotten Dry, and Barren 
c Co 11 par. in Bowle's C. Co 11. pa. 48. Liford's Case. . Timber-Trees in all Counties, as Oak, Ash, and Elm, after twenty years' growth, are not (as aforesaid) Tithable. Also Beech, Horn-Bean, Maple, Asp, and Hasel, may in some Counties, where there is scarcity of other Timber and an Usage accordingly, be computed as Timber-Trees, and not Tithaable. But any Timber-Wood, if it be cut within twenty years after the first planting thereof, is Tithable 
d More. Case 1271. . But on the other hand, Timber-Trees once discharged of Tithes are for ever discharged and quit of Tithes, though rotten dead. Whether a Parson may Prescribe to have Tithes of great Trees, contrary to the Common Law and the Statute of Sylva Caedua, Quaere, 9 H. 6. 56. It is said by Belknap 
e 50 E. 3. 10. , That of great Trees, or of Timber-Trees, Tithe was never demanded, and that by the Statute of 43 Ed. 3. But vid. Coke 11. par. in Liford's Case, the words in that Statute, and in the Book of 50 E. 3. viz. Great Trees must be intended Oaks, Ash, and Elms, of all which as well before the said Statute as since, if they were of twenty years' growth, it seems by the Common Law Tithes were not to be paid, because of their own nature they were only accounted Timber-Trees, and fit for Building. But of Sallows, Willows, Maples, and the like, although they be above twenty years' growth, yet Tithes thereof shall be paid 
f blow. Com. 450. & Dr. & Stud. 169. . Of other Trees of the age of twenty years' growth or upwards, which are Timber-Trees, Tithes shall not be paid; but of Sylva Caedua and Underwoods', Tithes shall be paid, but not of great Trees by Statute 
g ●t. 45 Ed. 3. cap. 3. 11 H. 4. 89. 50 E. 3. 10. . In a Prohibition the Question was, Whether Trees, which were above the age of 20 years' growth become Rotten, and be cut down for fuel, shall pay Tithe or not. It was the Opinion of the Court, that they shall not pay Tithes, for that Tithes are payable for all increase, and not for a decrease; and being privileged in regard of their high nature, this privilege shall not be lost in regard of its decrease 
h Hil. 43 El. C. B. Rame & patesons C. golds b. 145. . So if Timber-Trees become Arida, Sicca, etc. yet because sometimes it was an Inheritance, which was discharged of Tithes, although it now become Dotard, Tithe shall not be paid of the same; for the quality remaineth, though the estate of the Tree be altered 
i Co. 11. par. 81. Bowle's C. vid. Pas. 8 Jac. C. B. Dr. Nowman's Case, Godb. 175. ac. Hil. 2 Jac. B. R. Bro●k & Roger's Case. Cro. 1. par. 100 . If a Tree under the growth of 20 years be topped, and the Body thereof suffered to grow till it be passed that age, and afterwards the Boughs being grown out again are topped and Lop'd again, Tithes thereof shall not be paid, although that the Tree was not privileged at the first cutting; which was the Opinion of the whole Court of Common-Pleas 
k v. Brownl. 1. par. 33. . Such Timber-Trees are in Law known by the name of Great Trees 
l 45 Ed. 3. and the Bo●k 50 Ed. 3. , and Gross woods 
m Plowd. 470. .  
Trades and Labours pay some Tithe by usage in the nature of Personal Tithes; and so Carpenters, Masons, etc. and all handicraftsmen have paid Tithe. There was a Parson in Bristol that sued an Innkeeper there for the Tithes of the Profits of his kitchen, Stable, and Wine-cellar; in a Prohibition moved for by Yeluerton, the Case appeared to be this: The Defendant being Parson of a Parish in Bristol, 
Mich. 11 Jac. B. R. Dolley ver. Davies. Bulstr. par. 2.  did Libel in the Ecclesiastical Court against the Plaintiff, being an Innkeeper of the Bear in Bristol, to have Tithes of the Profits by him made, of his kitchen, Stable, and Wine-cellar, and lays in his Libel there, That he made great gain in selling of his Beer (having bought it for 500 l. and sold the same for a 1000 l.) and so Libels for the Third part of the Profits of the same, and sets forth in his Libel, That this is due unto him per Communem Legem Angliae; and sets forth in his Libel, That Negotiando and Traficando, he doth bargain and sell Beer in his Inn for 1000 l. which he bought for 500 l. and gained in his Sale 300 l. and better, of which gain he ought to have Tithe. Yeluerton moved for a Prohibition, setting all this matter forth in his Suggestion; and further showed, That the Defendant had yearly of the Plaintiff 40 l. at the least. Doderidge Justice, The Defendant would have Tithe, as I think, also of the kitchenstuff. Clench Clerk of the Papers informed the Court, That there was a Parson, who Libelled for Tithes of the gains of 10 l. for an 100 l. put out at Interest, and a Prohibition was granted: In this principal Case, by the Rule of the Court a Prohibition was awarded.  
Transaction differs from Composition only in this, that Transaction is an Agreement, touching Tithes, upon things litigious and doubtful; the other is Frank, gratuitous and voluntary, of things not contended for. See Composition.  
Triple damages may be had in an Action grounded upon the Statute of 2 Ed. 6. for not setting forth of Tithes, which Action is to be sued in the Temporal Courts.  
Trees of all sorts regularly and generally (except Timber-Trees, as aforesaid) Root and Branch, Body, Bark, and Fruit, used or sold by the Owner, are Tithable. Tithes shall be paid of Hasel, Willows, Holley, Alder, and Maple, although above twenty years' growth. Mich. 5. Jac. B. Resolved, and Consultation granted accordingly. So that Trees of all kinds, not apt for Timber, though exceeding 20 years growth, nor ever cut before, may be Tithable. And all Trees under the notion of Sylva Caedua aforesaid, Underwoods' and Coppices felled and preserved to grow again are Tithable to the Parson, when the Owner takes his Nine parts. But Trees cut only for Mounds, plowgear, Hedging, Fencing, fuel, for maintenance of the Plough or Pail, be it Underwoods' of Coppices, Parings of Fruit-Trees, or the like, are not Tithable; but Trees bearing Fruit of all sorts, are Tithable in their Annual increase: And therefore as to Fruit-Trees, as Apples, Pears, etc. the Tenth of the Fruit shall be set out and delivered, when they are newly gathered; for the omission whereof, if loss come to the Parson, the Owner is chargeable to him in the triple damages. If a man pay Tithes for the Fruit of Trees, and after cut down the same Trees, and make them into Billets and Faggots, and sell them, he shall not pay Tithes for the Billets or Faggots; for that it is not any new Increase. Coke, Magna Charta, 652. 621. If Trees be felled, no Tithes shall be paid of the Roots. Coke, Pasch. 29 Eliz. B. R. nor of the young Sprouts, that grow of such ancient Stock. M. 12 Jac. B. R. stamp & Clinton. Roll. Rep. And as Fruit-Trees pay Tithes in their Fruit, so also may young Trees, which as yet bear no Fruit, pay Tithes in another kind; for where a Parson Libelled in the Ecclesiastical Court for the Tithes of young Trees planted in a Nursery, upon purpose to be rooted up, and sold to be planted in other Parishes: The Question was, Whether Tithes should be paid for them? It was said, they were of the nature of the Land, and Tithes should not be paid of them, no more than of the Mines of coals, or Stones digged; or for Trees spent in fuel in the House. But it was the Opinion of the whole Court, That forasmuch as he made a profit of such young Trees, Tithes thereof should be paid, when they are digged up and sold into another Parish, as well as of Corn and carrot, or other things of like nature 
n Hill. 14 Car. B. R. Gibbs and Wibornes' Case. Cro. 1. par. 378. .  
Note by the Justices, If one cut Trees which are or may be Timber, although they be under the age of 20 years, no Tithes are due; and so it is of new Germain's growing under that age. 
Pasch. 29 El. B. R. Crook Rep. par. 1.  And where in a Prohibition, for that it was Libelled in the Ecclesiastical Court for Tithes of Timber- Trees, the Defendant said, the Trees were long since aridae, mortuae, & putridae: It was the Opinion of the Justices, That no Tithes should be paid of those Trees, 
Ram and Batersons Case. Cro. par. 1.  for being above the growth of 20 years, they were discharged of Tithes. Also in Brook and Rogers Case, where a Parson sued in the Ecclesiastical Court for the Tithes of the Boughs of Trees, above the age of 20 years' growth, and the Defendant prayed a Prohibition, and shown that the Trees were aridae, 
Cro. par. 2.  siccae, & in culminibus putridae: It was held by the better Opinion, that Tithes should not be paid of them.  
In an Action upon the Case: Declared, whereas by the Statute of 45 Ed. 3. cap. 3. Tithes ought not to be paid for Gross Trees: That she had cut down such Timber- Trees, being above the growth of twenty years, 
The Lady Waterhouse & Bawde's C. Cro. par. 1.  and that the Defendant as Parson sued her for Tithes of them against the Statute; upon which it was Demurred. Resolved by the whole Court, That the Action did not lie; for none shall be punished for Suing in the Ecclesiastical Court for any matter which is properly demandable there, although perhaps, he hath no cause of Action: But if he Sues in the Ecclesiastical Court for matter, which appears by his Libel is not Suable there, nor the Court hath Jurisdiction thereof, there an Action upon the Case lieth.  
Turkeys: Tithes shall not be paid of them, nor their Eggs, quia Ferae naturae 
o Houghton and Prince's Case. More. Rep. .  
Turfs used for fuel or Firing, do pay Tithe, and are Tithable as Predial Tithes; yet held that Tithes shall not be paid thereof. Hill. 14 Jac. B. R. per Houghton. Hill. 11 Jac. B. R. per Cur.  
Tile-Stones, or Brick- Tile are not Tithable 
* adjudge. Mich. 19 Eliz. B. R. & Pasch. 34 Elliz. C. B. Liff and Watts C. .  
Tithes or Tithes are a Tenth, or otherwise a certain part or portion of the Fruit or lawful Increase of the Earth, Beasts, or men's Labour and Industry; and are payable by every person having things Tithable, that cannot show a Special Exemption, either by Composition, custom, Prescription, privilege, or some Act of Parliament: And they are to be paid without any Diminution; for which reason the Owners of things Tithable ought not to have the Nine parts, till the Tenth be first severed therefrom. And on the other side, the Tithe is in no case to be taken by the Parson or Vicar, before the same be severed from the Nine parts. The Parson de mero Jure is to have all the Tithes, if there be no Endowment of the Vicarage 
p 29 Eliz. B. R. in Bus●ie the Vicar of Paucas Cas. Godb. 63. ; and a Vicar cannot have Tithes, but by Gift, Composition, or Prescription, for that all Tithes de jure do belong to the Parson 
q Pasch. 15 Car. B. R. Marsh. 11. . In Suit for Tithes it is not necessary to demand the very value, for the Duty is uncertain. Mich. 16 Jac. B. R. Case Pemberton & Shelton. Roll. Rep. If Tithes be payable by one who dies before he pays it, it must be paid by his Executor, if he hath Assets. But if the Parishioner setteth forth his Tithes, and they stand upon the Land two or three days, and afterwards he taketh or carrieth them away; this is not a setting forth of his Tithes within the Statute of 2 Ed. 6. 
r adjudge. 10 Car. in Anderson's Case. . But if the Parson or Vicar shall suffer his Tithes (being severed) to lie long upon the Land to the prejudice of the Owner of the Ground, he may have his Action of the Case 
s Ley. 70. . And whoever taketh away the Tithes, not having Right thereto, is a Trespasser. Also an Action lieth against a Disseisor for the Tithes: or if one cut them, and another carrieth them away, an Action lieth against either of them 
t Pasch. 15 Car. B. R. upon Stat. 2 Ed. 6. . And although in the Ecclesiastical Courts no Plea is allowed in Discharge of Tithes 
u Dr. & Stu. 177. & in 8 Ed. 4. 14. ; yet Lands in the hands of Ecclesiastical persons may be Discharged of Tithes, and now since the Statute of 31 H. 8. in the hands of the King's Patentees also, by Suspension, privilege, or Unity 
w Vi. Hugh. Pars Law. cap. 27. p. 235. . And since in the Ecclesiastical Courts no Plea (as aforesaid) is allowed in Discharge, it is nothing strange that the Common Law holds, that the Court Spiritual hath not Jurisdiction in matters of Tithes, where the Prescription is de non Decimando; otherwise, where it is de modo Decimandi 
x Yelv. 79. 2. . The manner of right Tithing is regularly thus, viz. That Tithes and all other Church-Duties, shall be yielded and paid according to the Usage and custom of the place, where they are paid: And of Predial Tithes, the Tenth is to be set apart from the Nine parts in the place where they grow, before the said Nine parts are carried away; which Separation from the Nine parts is to be done in presence of the parson's Servant, upon seasonable Notice given to the Parson by the Parishioner; and the Parson is to have reasonable time to take away his Tithe 
z Broo. Tresp. 125. Co. 2. par. Inst. 610. . And as for the Small Tithes, such as Plants, Herbs, Seeds of Woad, Flax, Hemp, etc. they are Tithable in kind, if not Compounded for. And Personal Tithes, such as are for Profit made by Trade and Manual Occupations (except Common Labourers) are to be paid, as they were used to be paid forty years before the Statute of 2 Ed. 6. and as of right they ought to be paid, as at or before Easter some small Sum of Money, according to the custom of the place; but without a custom nothing to be paid 
a By 3 Judg. 17 Jac. B. R. . The Tithes of one thing only cannot be in satisfaction of Tithes of the same, and other things of another kind 
b More. Case 623. . Nor is Tithe twice payable of one thing in one and the same year: Therefore if a Parson hath Tithe-Fruit of a Tree felled the same year, and made into Billets or Faggots, he shall not have Tithe thereof. Nor are Tithes payable by any, but such as have a Property in the thing Tithed, therefore they are not payable of things stolen; nor shall things merely for Pleasure pay Tithes, nor the things that are in no man's property; only the King shall have the Tithes arising out of Ground not in any Parish. And if Tithe be paid to one that comes into the place by Simony, it is at his own peril, if afterwards he be forced to pay it again 
c Hob. 168. . Where Sale is or may be made of a thing Tithable, the equalest way is to let the Parson or Vicar have the Tenth penny made of the thing sold. And although Tithe is not payable to the Simonaick Parson, yet an Incumbent wrongfully Collated by the Bishop, may be such a person as is capable of Tithes, and may Sue for the same 
d Hob. 30●. . In Love and Piggots Case it was said, That if a Lessee for years be Sued in the Spiritual Court for Tithes, he in the Reversion may have a Prohibition. Pasch. 29. El. B. R. Cro. Rep. par. 1. And a layman lawfully Interessed in Tithes, being disseized thereof, or wronged therein, may have his Remedy for them in the King's Temporal Courts. This takes not away the ordinary Remedy for them in the Ecclesiastical Court; the Law (as to that) being as it was before the Statutes 
e Dyer 133. Co. 11. 13. . Likewise, for refusal to pay Tithes, or not setting forth Predial Tithes, the Parson may Libel in the Ecclesiastical Court, or he or other Proprietor thereof may Sue at the Common Law, or for the Subtraction thereof, at their Election, and recover the triple value of the Tithes 
f adjudge. 29 El. Wood's Case. St. 2 Ed. 6. Vid. Co. 2. par. Inst. 650. b. Hil. 40 El. C. B. Rot. 699. Bedell's Case acc. . Yet where only the Right of Tithes doth come in debate, and not the right of Patronage, in such case it hath been held, That the Ecclesiastical, not the Temporal Jurisdiction, shall take cognizance thereof; yea, though both parties claim by Prescription, which in itself is a matter Triable at the Common Law 
g 12 Ed. 4. 24. Mich. 29 El. B. R. adjudge. acc. 35 H. 6. 39 acc. . But where the parties Litigant are both Ecclesiastical persons, and the Claim of the one be for an Annual Pension out of the Parsonage of the other, although he claim the same by Temporal grounds, viz. by Prescription and Real Composition, he hath his Election to sue for the same either in the Ecclesiastical, or in the Temporal Court: And by the Statute of 34 H. 8. c. 16. Ecclesiastical persons may sue for Pensions in the Ecclesiastical Court; but if he brings a Writ of Annuity for the same, and declares upon the Prescription, he hath then determined his Election, that if afterwards he Sue for this Annuity in the Ecclesiastical Court, a Prohibition will lie 
h Hugh. Parson's Law. c. 27. p. 292. . If Suit be in the Ecclesiastical Court between Parson and Vicar for Tithes, Prohibition hath always been denied, if there be not other matter determinable by the Common Law. Mich. 16 Jac. B. R. Roll. Rep. But where the Question is only between the Parson and the Vicar, it is to be decided in the Ecclesiastical Court 
i More. 1267. . Yet it is said, That a Real Contract, though made between Ecclesiastical persons and of Ecclesiastical things, is only cognizable at the Common Law 
k Marsh. 87. . But if a custom of Tithing be agreed by and between both parties, it may be sued for in the Spiritual Court; but if the custom be denied, a Prohibition may be awarded, till it be Tried at Common Law 
l Hob. 247. . But where there is a Modus Decimandi, be it of Lands, or a certain Annual Sum of money, or other profit time out of mind given to the Parson and his Successors, in full discharge of all Tithes in kind in such a place certain; if this Sum be not paid, yet may not the Parson sue for Tithe in kind, but for the Money in the Ecclesiastical Court: But yet the Modus itself is Triable at the Common Law, and not in the Spiritual Court 
m Co. Select Cases. 40. 46. . Likewise, after that the Tithes are carried away out of the Ground, it hath been held, Suit cannot then be commenced for them in the Ecclesiastical Court, because they are then become Lay-Chattels, and the Property thereof is altered 
n Tr. 12 Jac. B. R. Case Reynolds & Hayes. Rol. Rep. vid. 38 Ed. 3. 13. by Finehden. Co. 11. par. Dr. Grant's Case. . And for the not setting forth of Tithes, not only the Parson or Rector, but also the Farmer of the Rectory may sue upon the Statute 
o More. Case 192. . The bare severing or setting forth of Tithes doth not make them to become Lay-Chattels, but the carrying them away out of the Ground doth: And therefore if Tithes be severed, and set forth, and afterwards the Parson Lease out the Parsonage, not mentioning the Tithes, the Tithes set forth shall pass; for although they be divided and severed, yet they are as yet Spiritual Duties of the Parsonage: But if the Tithes be carried into the Barn, and afterwards the Parson Leaseth out his Parsonage, with all Profits, etc. those Tithes shall not pass to the Lessee, for that now they are become Lay-Chattels 
p Mic. 6 J●c. C. B. Smith's Case. Adjudge. . It was Agreed clearly in Cannen's Case, That if a Parishioner sever his Hay, and it be made into Reeks or Cocks, and after fell it, the Parson cannot sue the Vendee for the Tithes thereof, but him that severed it, and on this matter Prohibition was granted. H. 16. Jac. B. R. Roll. Rep. If a Parishioner doth not set forth his Tithes, or subtracteth them after they be once set forth, the Parson may Libel against him in the Spiritual Court; or else by the Statute of 2 Ed. 6. cap. 13. the Parson or other Proprietor of the Tithes may have their Action in the King's Temporal Courts, for the not setting forth or subtracting of them at their Election, and shall recover the triple value of the Tithes in an Action of Debt: for although the triple value be not given to the Parson, or other Proprietor of the Tithes, by any express words of the Statute; yet forasmuch as he is the party grieved, and hath the Right of the Tithes in him, the triple value is given to him. For wheresoever a Statute giveth a Forfeiture or penalty against any one, who wrongfully detaineth or dispossesseth another of his Right or Interest; in that case he that hath the wrong, shall have the forfeiture or penalty, and shall have his Action at the Common Law for the same, or he may Sue in the Ecclesiastical Court for the same 
q Mic. 29 El. Wood's Case. Adjudge. Co. 2 par. Inst. 650. . But in his Action at Common Law it seems, he shall recover no Costs, as hath been Adjudged 
r 43 El. C. B. Sr. Moyle finch's Case. & vid Hil. 40 El. B. R. Rot. 699. Bedell's Case. acc. . But if the Parson or other Proprietor will sue in the Ecclesiastical Court for the subtraction of the Tithes, he shall recover there but the double value of them; because in that Court he shall recover the Tithes themselves, which is equivalent to the triple value at the Common Law 
s Co. 2. par. Inst. 651. a. . In another Case, where Debt upon the Statute of 2 Ed. 6. was brought, for not setting forth of Tithes; the Plaintiff shown, That Two parts of the Tithes did appertain to the Rectory, and a Third part to the Vicarage, and that he had a Lease for years of the Rectory, and another Lease of the Vicarage: And for not setting forth of the Tithes he demanded the triple value: upon Non Debet, it being found for the Plaintiff, it was urged in stay of judgement, that he ought to have brought several Actions, being grounded upon several Leases, as his Title is several. But it was Resolved, That the Action was well brought, in regard he had both Titles in him; and the Action is brought upon the wrong, because he did not set out the Tithes 
t Hil. 2 Jac. B. R. Sr. Rich. Chaepernon & Hill's Case. Cro. 2. pa. 68 . Again, in Debt for not setting forth of Tithes upon the Statute of 2 Ed. 6. The Case was, Corn was growing upon the Glebe-Lands of the Vicar, which was discharged of Tithes being in his own use: It happened that the Vicar died before the Tithe was severed, and his Executors did cut and carry away the Corn; and he that had the Parsonage appropriate brought the Action: The Counsel of the Defendant prayed the Opinion of the Court, whether he might plead Nihil debet: But the Court refused to deliver their Opinion in it, because it hanged in Suit before them 
u Tr. 15 Jac. B. R. horn & Cotton's Case. Hob. 387. . In the Case of Mountford against Sidley it was said, That where Tithes are set out, the Parson hath a liberty for a convenient time to come and carry them away: And this convenience of Time is triable by a Jury; if he exceed this, he shall be subject to an Action, and then by judgement of Law he shall be taken to be a Trespasser ab initio: Otherwise, it shall be of a licence in Fact given by the Parson himself. And it was holden by the Court, if the Corn had continued over long, his Remedy had been by Action upon the Case 
w Hill. 22 Jac. B. R. Rob 212. Mountford & Stdley's Case. Bo●str. 3. par. 336, 337. vid. Trin. 21 Jac. B. R. Wiseman & Denham's Case. Gods. 329.  And as a Parson ought to have convenient time to carry away his Tithes, so likewise he ought to have for that end free ingress, egress, and regress, to, through, and from the Land where the Tithes are, wherein if he meet with any obstruction, he ought to see how he Sues and lays his Action; for in a Case, where a Parson Libelled for Tithes in the Ecclesiastical Court, and set forth; That the Tithes were set forth, and that the Defendant did hinder him and stop him from carrying them away: But because he did not Sue there upon the Statute of 2 Ed. 6. for he did not mention the Double value as he ought, and it was Agreed by all the Justices, he ought to have done; nor mention the Statute, as he ought also to have done; a Prohibition in that Case was awarded 
x P. 17 Car. C. B. Adj. acc. Hugh. Abr. dimes, Sect. 4. §. 7. . The Grant of a Tithe for Life to begin at a day to come, is not good. Yelvert. 131. If a man will let a Lease of his Tithes, the Lease must be by Deed, and not by word only; therefore, if a Parson doth Demise his Rectory for years, the Tithes will pass inclusive, although the Lease be by word only; but if the Parson Lease his Tithes alone, they will not pass, unless the same be by Deed or Writing 
y Tr. 26 El. B. R. Wit●● & Paunder's C. adjudge. acc. . Yet the Parson may Demise his Tithes to the Owner of the Land, for a year by word only, as hath been agreed by all the Justices 
z M. 2 Car. B. R. Bellamy & 〈◊〉 Case. ●ot 175. Goab. 373. ; but to a Stranger he cannot Demise them, otherwise than by Deed: And although Tithes will (as aforesaid) pass by Contract to the Owner of the Soil; yet may the Parson sue the Owner for Tithes in kind in the Spiritual Court, and (as it hath been holden) the Owner by reason of the Contract, shall not have a Prohibition 
a Mich. 8 Ja. C. B. in C●fes Case. . In which case the Ower of the Soil may sue the Parson upon the Contract in the Temporal Court, and recover as much in damages; but then in his Pleading he must not declare of a Verbal Contract, but must set forth the same to have been made in Writing, and so it hath been Adjudged 
b M. 7 Jac. C. B. in ●awling's Case. . And in the Lord Shandois Case it was holden by the Court, That a Suggestion of an Agreement between him and the Parson, in consideration of a certain Sum to be yearly paid to the Parson during their Joynt-Lives, and his continuing Parson, that his message and Lands in the Parish of D. and the Tenants thereof, should be discharged from the payment of Tithes thereof, showing, that the said yearly Sum was paid accordingly, and that notwithstanding the Defendant sued the Plaintiff, being his Farmer, for Tithes: In this Case it was held, That this was not a sufficient surmise to maintain a Prohibition: For an Agreement to be discharged from Tithes, may be a year by word; but to have such an Agreement for life or years, cannot be without Deed 
c M. 4 Car. B. R. in Hawes & Brayfield's Case. Cro. 2. par. 137. vid. Nelson & Prettiman's C. & Rolls & rolls Case. B. R. adjudge. acc. ibid. . Likewise in an Ejectione firm brought of a Lease of Tithes, the Plaintiff did not show, that the Lease was by Deed: and because Tithes cannot pass without Deed, after a Verdict found for the Plaintiff: It was Ruled to be ill, and Adjudged for the Defendant 
d P. 19 Jac. B. R. both & Crompton's C. Cro. 2. pa 613. . To conclude, In the 19 El. B. R. it was debated whether Tithes were Jure divino, or by the Constitution of men only? The Judg. were all it seems of Opinion, That they were due as well by the Constitution of Kings as by the Law of God 
e 19 Eliz. B. R. . And therewith doth Dr. & Stu. 166. if the Qu. be de Quota parte: For there it is held, that the 60 part is due only by man's Law. And the Opinion of Gerson the Divine, is cited in his Treatise, entitled Regulae Morales, where it is said, Solutio Decimarum Sacerdotibus est jure Divino, quatenus inde sustentur; sed quoad hanc quam illam partem assignare, aut in alios reditus commutare, Positivi juris est. And elsewhere, Non vocatur portio Curatis Decima pars, imo est interdum vicesima, aut tricesima 
f Dr. & St●: 166. & 19 E●. Dyer in B. R. adjudge. vid. Hugh Abr. dimes Sect 1. §. 11, 12. . And in He●sloe's Case, Co. 9 par. it is said, That Tithes, Quatenus Tithes, were Spiritual things, and due ex jure Divino, and were not accounted as Temporal Inheritances 
g Hensloes Case. Co. 2. par. . Hence it is, That where a Parson leased all his Glebe Lands, with all Profits and Commodities, rendering 13 s. 4 d. pro omnibus exactionibus & demandis; and afterwards Libelled in the Spiritual Court against his Lessees for the Tithes thereof. It was the Opinion of the Court, That Tithes are not things issuing out of Lands, nor any Rent or duty, but Spiritual; and if the Parson doth Release to his Parishioners, all Demands in his Lands, his Tithes thereby are not extinct; and therefore a Consultation was granted 
h Tr. 31 El. B. R. St●le & Miller's Case. Leon. 300. . And in the like case it hath been Adjudged, That the Lessee should pay Tithes to the Parson, for that they are jure Divino due, and cannot be included in Rent 
i 32 Eliz. in Dabbi●gtons Case. .  
If a Parishioner sets forth his Tithes, and sever the Tenth part from the Nine parts justly and truly, although he doth not give Personal notice to the Parson, nor general notice in the Church of the time of setting forth his Tithes, whereby the Parson might be present at the setting of them forth, and to see that it be justly done; yet it is a good setting forth of the Tithes, 
Mich. 13 Car. B R. Chase & Ware, per Cur. Intratur Tr. 13 Car. rot. 564.  as in the Case between Chase and Ware, in a Writ of Error upon a judgement in an Action upon the Case against the Parson, for leaving his Tithe of Hay upon the Parishioners ground after notice of setting them forth, whereby the Parishioner lost his Grass there. But it was not alleged, that the Parson had notice of the time of setting them forth; and yet the Court affirmed the judgement against the Parson.  
A. Parson in Consideration of 20 s. yearly, promised to B. that B. should pay no Tithe for a certain Wood, per parol; and in Consideration thereof B. promised to pay the 20 s. yearly, and this Agreement was during their Lives. B. made a Lease at Will of the Wood; 
Trin. 21 Jac. B. R. Bennet vers. Snell. Rol. Rep. par. 2.  the Lessee had a Prohibition against him, for the Agreement was good; and Jermyn demanded, what Remedy against the less for the 20 s. Doderidge, None; but he shall have Action on the Case against B. or his Executors; but the Lessee for years may have Action against the Parson, if he Sue him in the Ecclesiastical Court. For the Case was, There was an Agreement per parol made between S. Parson, and B. the Parishioner: B. promised to S. for himself, his Executors and Assigns, to pay him Ten load of Wood, and 10 s. for the Tithe of a Wood during the life of S. And S. promised not to Sue him, etc. for any other Tithe. B. dies, his Executor made a Lease at Will of the Wood; the Question is, whether the Tenant at Will, may take his Action against the Parson who sued him for other Tithes, etc.  
In a Prohibition against a Parson who sued for Tithes, it was surmised, That the Clerk of the Parish and his Predecessors, 
S●vil & Woods Case. Cro. par 1.  Assistants to the Minister, had used to have five shillings for the Tithe of the Lands, where, etc. It was the Opinion of the Court, That if this Special matter be showed in the surmise, it might perhaps be good by reason of long continuance: But they held that by Common intendment, Tithes are not payable to a Parish-Clerk, and he is no party in whom a Prescription can be alleged, wherefore a Consultation was awarded.  
The Parson of T. sued for Tithe-Wood of the Park of T. for a Prohibition it was surmised, That he and all those, etc. time out of mind, 
Sherburne's Case. Cro. par. 1.  etc. had used to pay to the Vicar of T. ten shillings yearly for all Tithes of Wood growing in the place, and the proof was, That he paid ten shillings for discharge of Tithe-Wood in the Park and two other places: The Prohibition was denied, and a Consultation awarded, because the right of Tithes between the Parson and the Vicar came in question, and because the party failed in the proof of his Prescription.  
In a Prohibition to stay Suit for Tithes, surmizing that he set forth his Tithes, and for some reasonable cause he detained part of them: 
Leigh & Woods Case. Cro. par. 1.  And the Parson sued him in the Ecclesiastical Court; upon which it was Demurred; because by the fetting forth they were Lay-Chattels. But the Court held, That the Prohibition did not lie; for against the party himself, who setteth forth his Tithes, a Suit is maintainable in the Ecclesiastical Court, if he detains them, although he might have his Remedy for them at the Common Law: Otherwise, if they were taken away by a Stranger after they were set forth.  
For a Prohibition it was surmised, That he had used to pay the Tenth sheaf of Corn, 
Ingolib●y and Johnson's C. Cro. par. 1.  the Tenth Cock of Hay, the Tenth Fleece of Wool (and so the like) in satisfaction of all Hay, Corn, cattle, etc. And it was held, That it was no sufficient surmise for a Prohibition, because that which he used to pay is but the Tenth in kind.  
In Sands and Pruries Case the question was, whether Tithes were grantable by Copy: 
Cro. ibid.  It was Objected they could not, because it is against the nature of Tithes, whereof none could have property before the Council of Lateran, and it was impossible there should be any custom to demise them by Copy, when none had interest in them, and they cannot be parcel of a manor, for they are of several natures, though united in one man's hands: But by the Court Resolved, they might be granted by Copy, so it had been time so out of mind.  
A Parishioner severed his Tithes, but being in a Close, the Gate was locked, 
Blackwell's Case. Cro. par. 1.  so as the Parson could not come at them: The question was, whether the Gate were locked or open, and thereupon a Prohibition brought. The Court was of Opinion, that although the Tithes were severed, yet they remain Suable in the Ecclesiastical Court, and then the other is but a consequent thereof, and Triable there, and the Prohibition denied.  
In Sharington and Fleetwood's Case it was Resolved, That if a Parson Libels for Tithes, 
More's Rep.  and a Prohibition is granted, and after he Libelleth for the Tithes of another year, the first Suit not being determined, an Attachment upon the Prohibition lieth against him. 
More's Rep.  And in the Case between Talentire and Denton, where the Bishop of Carlisle being seized in Fee of Tithes in right of his bishopric, made a Lease of them for Three Lives, rendering the ancient Rent, the Tithes having been usually demised for the same Rent; It was Resolved, That the Lease was not good against his Successor, because he had not remedy for the Rent by Distress or Action of Debt: Otherwise it had been, if only a Lease for years, for there Debt lieth for the Rent.  
In Leigh and Wood's Case it was Resolved, That if the Owner sets forth his Tithe, 
Ibid. Case 1219.  and a Stranger takes them, no Suit shall be for the same in the Ecclesiastical Court; but if the Owner himself, after he hath once set forth his Tithes, takes them away again, the Parson may Sue him in the Ecclesiastical Court for the Tithes.  
S. Libelled in the Ecclesiastical Court against H, for Subtraction of Tithes; the Defendant there pleaded, That he had divided the Tithes from the Nine parts. And then the Plaintiff made Addition to the Libel (in nature of a Replication) viz. That the Defendant divided the Tithes from the Nine parts, Quod predict. the Plaintiff non fatetur, sed prorsus diffitetur; yet presently after the pretended Division, in fraudem Legis, he took and carried away the same Tithes, 
Trin. 44 El. B. R. Spratt against Heal. Co. lib. 13.  and converted them to his own use: and thereupon the Plaintiff obtained Sentence in the Ecclesiastical Court, and to recover the triple value according to the Statute of 2 Ed. 6. cap. 13. And thereupon H. made a surmise, that he had divided his Tithes, and that the Plaintiff ought to Sue in the Ecclesiastical Court for the Double value, and at the Common Law for the triple value. But it was Resolved by the whole Court, That the said Division mentioned in the Libel, was not any division within the Statute of 2 Ed. 6. c. 13. For that Act provides, That all the King's Subjects henceforth, shall truly and justly without Fraud, divide, set out, yield and pay all manner of other Predial Tithes in their proper Land: So as when he divides them to carry them away, he divides them not justly without fraud; and therefore the same is out of the Statute: and where the words of the Statute are [divide, set out, etc.] their Predial Tithes, etc. and if any person carry away his Corn and Hay, and other Predial Tithes, etc. And to make an evasion out of these words [this Invention was devised]; the Owner of the Corn by Covin sold his Corn, before Severance, to another, who as Servant to the Vendee reaped it, and carried it away without any Severance, pretending that neither the Vendor, because he did not carry them away; nor the Vendee, because he had no property in them, should be within the Statute: But it was Resolved, That the Vendor should be charged in that case with the penalty of the Statute, for he carried them away, and his fraud or covin shall not help him. Vid. 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it was Resolved, That the Plaintiff could not Sue in the Ecclesiastical Court for the triple value, but for the Double value he might.  
A Parson Libels in the Ecclesiastical Court upon the Statute of 2 Ed. 
Whereupon a Libel for tithe. a Prohibition; and where a Consultation shall be granted.  6. cap. 13. for Tithes. The Case was this, The Parishioner sets them out according to the Statute; but they being so set out, he would not suffer the Parson to come and take them away, thinking by this means, and this way to avoid the Statute: And upon this the Parson Libels in the Ecclesiastical Court for these Tithes; the Defendant there Surmizes, That he did not hinder him from the having of his Tithes, but saith, That he did hinder him in coming for his Tithes one way (which was the usual way) but that he might have come for them another way: And upon this a Prohibition was prayed, and granted, supposing that there was no question at all as touching the payment of Tithes, but as touching the Way to come for them; and upon this whole matter the Parson prayed a Consultation. The whole Court were clear of Opinion, That such a setting out of Tithes, as the same appeared here to be in this Case, without suffering the Parson to come and take away his Tithes, that this is a fraudulent and no good and sufficient setting forth of Tithes, according to the Statute, and as the Statute doth require, which ought to be a fruitful and effectual setting forth of his Tithes; for in so doing, he ought to set forth his Tithes, and also to suffer the Parson to come, have, and to take away his Tithes: otherwise, unless he do also perform this, the setting out of his Tithes here is to no purpose for to excuse him, and to the surmise here made for the Way. 
A Consultation granted.  The whole Court clear of Opinion, That this is no ways at all material, and so without any further motion or Arguments, by the Rule of the Court, a Consultation was granted. Vid. Bulstr. par. 1. fo. 108. Hill. 8 Jac.   

V  
VEnison, though not Tithable of itself, yet may be given as Modus Decimandi; Per Assisas Forestae, and other Records, it doth appear, that Tithes have been paid, even of Venison, in divers parts of England.  
Vetches, Tares, and the like, eaten by the cattle that do the Husbandry in the same Parish, be it eaten on the Ground or elsewhere, are not Tithable, unless the Parson hath a Special custom for it.  
Vine is Predial Tithe. Co. Magna Charta, 649.  
Unity of Possession, or Unity of the Parsonage and Lands, which should pay Tithes, in the hands of Religious and Ecclesiastical persons: By this unity of Possession Tithes are not now discharged in Right, though in Payment; so that it is not to be pleaded as a Discharge of Tithes, but as a discharge of the Payment of Tithes 
a Hob. 44. 297. , This unity hath been often Resolved to be a good Discharge of the payment of Tithes within the meaning of the Statute of 31 H. 8. 
b Co. 2. par. Inst. 655. More 46, 47. Cro. Jac. 608. . Originally this unity was, where an Abbot, Prior, etc. time out of mind had been seized of Lands in themselves Tithable, and also of the Rectory of that Parish wherein such Lands did lie: So that unity of the Parsonage and Lands, which should pay Tithes by Appropriation or otherwise, in the hands of Religious and Ecclesiastical persons, had discharged from the payment of Tithes: and now since the said Statute of 31 H. 8. such an unity of Possession in the said Religious Houses, and Lands, and Persons, shall be a Discharge for the Kings Patentee for the Lands that came to the Crown by the said Statute. But than it was Resolved, That such an unity must have been Justa, Libera, Aequalis, and Perpetua. It must have been Justa, claimed by Right, by good and lawful Title, and not by Disseisin, or other extortious and unlawful Acts; for such an unity had not been a good discharge within the Statute. 2. It must have been Aequalis, that is, there must have been a Fee-simple both in the Lands and in the Tithes, as well of the Lands upon which the Tithes are, as of the Parsonage or Rectory; for if those Religious persons had held but by Lease, that had not been such an unity as the Statute intended. 3. It must have been Libera, free from the payment of any Tithes in any manner; for if their Farmers, Tenants at Will, or Years, had paid any manner of Tithes before the Dissolution, it may be a sufficient Bar to avoid the unity pleaded in discharge of Tithes. 4. It must have been Perpetua, time out of mind, that such Religious Houses were Endowed, and such Religious Persons had in their hands both the Land and the Rectory before the memory of man, or as it seems (according to the Rules of Common Law) before the first of R. 1. Discharged of Tithes; or if the Appropriation were Ancient, as in the time of Ed. 4. such is said to be a good discharge of Tithes, either on the account of Perpetual unity or of Prescription 
c Sr. Sim. Deg. Law of Tithes, ch. 21. & Hugh. Abr. Dism. Sect. 3. § 17. . And at this day such an unity is said to be a good discharge of Tithes in the hands of the Kings Patentee, within the Statute of 31 H. 8. 
d Co. 11. par. 13. Bridle & Nappe●s Case. . There may be also (as appears at the Common Law) an unity of Possession, different from the former, which shall likewise discharge from the payment of Tithes; but such Discharge is only pro tempore, and therefore though it be an unity of Possession, yet it is not a Perpetual unity in the sense aforesaid: As if a Parson of a Church purchaseth a manor within his Parish, by this Purchase, and unity of Possession, the manor which before was Tithable, is now become Non Decimabilis, because he cannot pay Tithes to himself; but if he maketh a Lease of his Parsonage and Rectory to a Stranger, the Parson himself shall pay Tithes of his manor to his Lessee; and so if the Parson maketh a Feoffment of his manor, the Feoffee shall pay Tithe to the Parson, because Tithes are due by the Law of God ex Debito, and cannot be extinct, into whose hands the Lands come, unless they come to the hands of the Parson himself 
e Mich. 30 H. 8. Dyer 43. .  
Underwood is Tithable, and of Vnderwoods' digged up by the Roots Tithe shall be paid, and so of Hedge-rows 
f Mich. 11 Jac. C. B. Sharington's Cas. ; likewise of Underwood sold standing the Tithe shall be paid, and that not by the Seller, but by the Buyer. But Underwood used for sencing of Corn or Pasture pays no Tithe 
g Hil. 15 Jac. C B. adjudge. Hid & Ellis Case. . An Action of Trespass was brought by a Parson against a Vicar for Vnderwoods', and each of them did claim the Vnderwoods' by Prescription as his Tithes, that (although their claim was by Prescription,) yet because the right of the Tithes was in debate only, the Temporal Court was ousted of the Jurisdiction of them 
h 22 Ed. 4. 24. . But if a Parson or Vicar claim a portion of Tithes by Prescription only, which is a Temporal thing, and sueth in the Spiritual Court; it was holden that a Prohibition lieth 
i 29 Eliz. B. R. by sluit and Cl●rk Justices. .  
In a Prohibition to stay proceed in the Ecclesiastical Court, upon a Libel there by the Parson for Tithe of Underwood, by reason of a Prescription in Non Decimando, for the wild of Kent, this Wood growing in the wild of Kent. 
Mich. 12 ●ac. B. R. 〈◊〉 vers. 〈◊〉. Bulstr. par. 2.  Henden moved the Court for this Prohibition, for these Reasons, (1) A whole country generally may Prescribe in Non Decimando, in a particular place, and as a whole country may so do, by the same reason a particular person may. A second Reason; The Statute of 2 Ed. 6. cap. 13. gives life unto this Prescription, for this particular place and precinct. Coke Chief Justice. By Lindwood, a whole country may Prescribe in non Decimand●; and so is Dr. & Stu. cap. ult. fo. 166. b. But it is with this Proviso, so that there is besides this Maintenance for the Parson; otherwise the same is not good. The Statute of 2 Ed. 6. cap. 13. aids you not at all in this Case, for a private man cannot in this manner Prescribe: And to say, that the Conqueror never conquered this place; this is but Historical and Apocryphal, for he was Conqueror by Composition had. It is true, that in former time, long since this place was not Tithable, because there was no Wood there but great Timber-Trees, which were not Tithable; but these being now cut down, wasted, and destroyed by the Iron-Mills, and as in many other places; now this place which was not Tithable before, being now Underwood, and converted into Tillage or Pasture, is now become Tithable, and Tithe shall be there paid; and if Waste and Barren Ground, for the which no Tithe hath ever been paid, if the same be now meliorated and converted into Tillage; now by the Common Law Tithes shall be presently paid for this, unless the same be within the Proviso of the Statute of 2 Ed. 6. of Exemption from payment of Tithes for a certain time after the melioration of the same, as appeareth in the Statute; otherwise Tithes shall be paid presently: No Tithes could formerly be paid here in this place, because there were only great Timber-Trees here growing; but now clearly they ought to pay Tithes for the Vnderwoods', and this is the only Demand here. The whole Court was clear of Opinion, That no Prohibition should be here granted in this Case, but that Tithe should be paid. Coke, Will you allow the Parson here in this place Tithe-Hay and Corn, and not Tithe-Wood? Doderidge, by Lindwood and Dr. & Stud. a whole country may be discharged from payment of Tithes; but this at the first of necessity ought to have a lawful Commencement by way of Composition, or, etc. Coke agreed with him herein, and said unto Henden, show unto us an Ancient Writing, by way of a Composition for your Discharge of payment of Tithes; the Statute of 2 Ed. 6. makes against you there, though no Tithe was ever paid, yet upon the melioration of the Land Tithes shall be paid presently, if the Statute had not been made. The Court were all clear of Opinion against the granting of a Prohibition, and so no Prohibition awarded.   

W  
WAges of Servants of the Plough shall not pay any Tithe, as hath been Resolved, Pasch. 14 Jac. B. inter Parson Ellis and Drake; and Prohibition granted accordingly, although the Libel was but for the Tithe of a Third part of their Wages, leaving the rest free; for it was said, That by the same reason that the cattle of the Plough are free of Tithe, the Wages of the Servants that follow the Plough are Tithe-free also.  
Waste Pasture Lands, 
2 H. 4. Rot. Par. nu. 99  if Tithes in kind be paid for Lambs, Calves, etc. feeding and couching thereon, Tithes shall not afterwards in the same year be paid for Agistments on the same Waste Pastures. Waste Grounds, not certainly known in what Parish, and cattle feeding thereon, the Tithe thereof belongs to the Parson of the Parish wherein the Owner of the cattle doth dwell.  
Wax of Bees is Tithable by the Tenth weight thereof. Tithes ought to be paid in kind de jure of Wax and Honey of Bees in the Hive. Mich. 15 Car. B. R. inter Barefoot & Norton, Adjudged in a Prohibition upon a Demurrer, and a Consultation granted.  
Willows, growing in the soil of a manor, felled, are not (as is said) Tithable, though it be waste to fell them 
a Hob. 219. . No Tithes shall be paid of willows in a country where they are used for Timber 
b Hob. Rep. Case 288. . Sed Q. as to the former; for a Record of a Prohibition was showed to the Court, where a Prohibition was awarded to the Spiritual Court for Tithes of willows upon a surmise, That they are of use as Timber in the County of Southampton. And in that Case it was said, If willows grow within the Site of a House, it is Waste to fell them; yet if they be felled, that Tithes shall be paid of them 
c P. 14 Jac. C. B. rot. 1918. G●ffly & Vindar's Case. Hob. 219. .  
Woad yields a Predial Tithe, and regularly to be computed inter Minutas Decimas; yet in some Cases may be Great Tithes in places where it is much sowed; as in Udall and tindal's Case 
d Hutt. Rep. 77. . The Case was, That in Trespass for taking of two Loads of Woad; the Jury found, That if they were Minutae Decimae, than the Jury found the Defendant guilty, if they were not Minutae Decimae, then for the Plaintiff: It was said for the Plaintiff, That without more Circumstances it shall not be intended Minutae Decimae; for it may be, That a great quantity of Woad may be sown, and the greatest part of the Commodity in the Parish may consist in it, for Minutae Decimae are but of small consideration in a Parish, as Herbs in a Garden, and such like: and therefore Woad sown in a Field is not Minutae Decimae. It was Resolved by the Court, That Woad growing in the nature of an Herb, the Tithe thereof aught to be accounted Minutae Decimae, and belong to the Vicar. And the Dean and Chapter of Norwich Case 
f Pasch. 42 Eliz.  was vouched to prove it, That the Tithe of 40 acres of Land sowed with Saffron, did belong unto the Vicar, and not to the Parson, because they were Minutae Decimae. Hill. 1 Car. C. B. Sir Rich. Vdal and the Vicar of Altons' Case. Cro. 3. par. 20. vid. Hutton 77. the same Case.  
Wood is computed among the Predial Tithes, as also among the Great Tithes; yet it hath been Resolved, That if a Vicar be only endowed with the Small Tithes, and hath by reason thereof always had the Tithe- Wood, that in such case it shall be accounted a Small Tithe; otherwise it is to be accounted among the Great Tithes 
g Rol. 1. 643. v. 2. Bulstr. 27. . Wood, or a great Wood consisting for the most part of Underwoods', only some Great Trees here and there sparsim therein, the whole Wood is Tithable, unless they be specially exempted 
h adjudge. Trin. 19 Jac. B. R. . But if the Wood for the most part consist of Timber-Trees, only some small parcel of Underwoods' or Bushes in the same, no Tithe shall be paid for such Wood; the Timber-Trees do in that case privilege the rest of the Wood 
i adjudge. Hill. 16 Jac. C. B leonard's Case. & 4 El. B. R. Foster & leonard's C. adjudged accordingly. Cro. 2. par. 199. acc. . Wood converted into Arable, shall not be discharged of Tithes, as Barren Land within the Statute of 7 E. 6. Trin. 12 Jac. B. R. Case Maschal & Price. Roll. Rep. The Tenth acre of Wood in a Coppice is a good payment of the Tithe, specially if such be the custom of Tithing Wood in that country; otherwise Wood in a Coppice or the like, cut and sold, the Tithe thereof is to be answered not by the Buyer, but the Seller, as some conceive; which by others is opposed, who hold, That the Buyer, not the Seller of Woods selled to be sold, shall answer the Tithe: the Reason is, because Tithes do follow the Fruits; yet the Parson for his Right, hath his Remedy against either: But Wood of Coppices or Trees that one cuts and spends in his own House-keeping, though he spend much, is not Tithable 
k By Hobart Ch. Justice. , unless the Parson can allege and prove a special custom to the contrary 
l M 4 Jac. B. R. ; for generally Wood used for fuel in House-keeping is not Tithable 
m M. 15 Jac. C. B. White & Bickerstaffs Case. , sed Qu. the custom, it being not so per Legem terrae 
n Tr. 4 Car. C. B. Norton & Farmer. Case . Nor is there any Tithe to be paid for such Wood as is cut for Hop-poles, where Tithe is paid of the Hops 
o dict. Bickerst●ffs Case. . But where Wood is grubbed up, the Land that thereby is made fit for the Plough, shall pay Tithe presently. And if the Tithes of Wood, after the Inheritance thereof sold be subtracted, the Parson may by the Canon Law implead either the Buyer or the Seller at his choice, though he can recover but of one; but now by the Statute 
p 2 Ed. 6. 13. vid Rol. 1. 656. l. 1.  the Seller only unto triple damages. If there be Parson and Vicar in one Church, and the Vicar hath the Tithe of Woods, and the Parson the Tithe of the Pasture, and Wood be felled for Fencing and enclosing the Pasture, the Vicar shall not have Tithe of the Wood 
q Hill. 15 Jac. C. B. hid & Ellis Case. Adjudged. . Woodlands converted into Arable or Tillage is not discharged of Tithes as Heath, Waste, or other Barren Grounds, within the Statute of 7 Ed. 6. Trin. 12 Jac. B. R. Case Maschall verse. Price, in fin. Roll. Rep. A Prohibition in another Case was granted to stay a Suit for Tithe- Wood, upon a surmise, That the Wood was spent in his House for Firing, and shows, that the custom in the same Parish is, That the Owners of any House and Land in the said Parish, who pay Tithes to the Parson, ought not to pay Tithe of Wood spent for fuel in their Houses: And Issue being upon this custom, it was found for the Defendant. It was moved in Arrest of judgement, That although it be found there is no such custom, that yet he ought not to pay Tithe for Wood spent in his house, nor for Fencing-stuff for Hedges, but per Legem terrae ought to be discharged of them: But it was Resolved by the Court, That it is not the jure per Legem terrae, that any be discharged of them; for it is usual in Prohibitions, to allege customs, or by reason of other Lands whereof he pays Tithes, that he is discharged of that Tithe, but not to allege, that per Legem terrae he is discharged: And in this Case, the Plaintiff in the Prohibition having alleged a custom, and it being found against him, it was Adjndged for the Defendant, that a Consultation should be awarded 
r Tr. 4 Car. C. B. Cro. 1. par. 80. Norton & Fermor's Case. . By custom Tithes may be paid for Wood spent in a man's own House. Mich. 14 Jac. B. Watley and Hanberry, Agreed. And albeit there are some Trees, of what age or bigness soever they be, are regularly to pay Tithes, as Willows, Hasels, holies, Maples, Birch, Alders, Thorns, &c. 
s Hob. 288. & 219. Rol. 640. q. 6, 7, 8. Noy 30. Cro. Jac. 199. ; yet if they are cut for Fencing of Grounds, or for fuel to be spent in the Houses of the Owner within the same Parish, no Tithes shall be paid thereof, unless it hath been otherwise by custom 
t Co. 2. Inst. 652. Cro. El. 499, 609. & Cro. Car. 113. More 683. Rol. 1. 644. z. 1, 2, 3. . Also would cut for Burning of Bricks, to be used for repair of the Owners Buildings in the same Parish, pay no Tithes: otherwise, if used for Bricks to sell, or for making Houses not of necessary habitation, so as the Wood in its own nature be Tithable 
u Rol. 1. 645. z. 8, 9, 10. . Likewise Tithe shall not be paid of the Roots of such Coppice-Wood, as paid Tithe at the cutting thereof, if such Roots were soon after the cutting such Wood, grubbed up to cleanse the Ground 
w Rol. 1. 637. e. 7. . If Woodlands be mixed with Woods partly Tithable, partly not Tithable; it hath been held, That if the Major part be not Tithable, it shall privilege the rest; but if the greater part be Tithable, than all that is Tithable shall pay Tithes 
x Tr. 19 Jac. B. R. Buckhu●st. vers. Newman. Trin. 36 El. B. R. per Henden. Pars. Law . Touching the manner of Tithing of Wood and Trees, and how the Tithes thereof are to be paid and delivered, the Reader for his better satisfaction may consult the Authors in the margin 
y Co. 11 par. 48, 49, 81. Plowd. 470. Brownl. 1. pa. 94. & 2. par. 150. Doct. & Stud. 69. .  
The Parson of Henly brought an Action of Debt for 600 l. upon the Statute of E. 6. for not setting forth Tithes of Wood, and shows, that the Defendant had cut down 200 Loads of Wood, to the value of 200 l. and saith, that the Tenth part of that did amount to 200 l, and so he brought his Action for 600 l. upon the Statute: And the Plaintiff was nonsuit for one fault in his Declaration; 
Pasch. 5 Jac. Man verse. Somerton. Brownl. Rep. pa. 1. Actien● of Deb.  for whereas he declares the price of the Wood to be 200 l. it was mistaken, for it should have been 2000 l. for he demanded more for the Tenth part than the Principal is, by his own showing. If a man buy Wood Tithable, and burn it in his own House, he shall not pay Tithes thereof, as hath been Resolved. And no Tithes shall be paid for Wood cut and employed for the enclosures in the Husbandry. 
Tr. 14 Jac. B. Parson Ellis and Drak●. T●. 38. El. B. R. Pars. Run & P●tteson. & Tr. 10 Car. B. R. Brown & Nixon. per Cur.  Also if a man cut Wood and burn it to make Brick for repairing of his dwellinghouse for himself and his Family within the Parish, no Tithes shall be paid for that Wood, in regard the Parson hath benefit by the labour of the Family: otherwise it is, in case the Bricks were only to enlarge his house within the Parish, and more than needful for his Family, as for his pleasure or delight. If a man sell Wood to me, and I burn it in my house, the Vendor shall stand charged for the Tithes thereof, and not the Vendee, for no Tithes are due for Wood burnt in the Parishioners house, as hath been Resolved. Pasch. 14 Jac. in B. Parson Ellis & Drakes Case, and Prohibition granted accordingly: Although it was said, That by the Civil (or rather Canon) Law, the Parson hath his Election to Sue either of them; which is contrary to the Common Law.  
In the Lord Clanrickard's Case against Dame Denton, the Plaintiff surmised to the Court, 
Mich. 17 Jac. B. R. Rol. Rep. par. 2.  That all the Vill. of Kent, which is a Precinct containig above forty Parishes time out of mind, etc. have been discharged of the payment of Tithes of Wood under the age of 20 years, and the Defendant had sued him in the Ecclesiastical Court, and hereupon had a Prohibition. And the Defendant Traversed the custom, which a Jury was taken at the Bar to try; and for inducement of the custom, Lindwood was produced in Cap. de Decimis, where it is said, That before that time Tithes were not paid for Wood, which is contrary to the Old and New Testament, and that Assertion is made by Stratford Archbishop of Canterbury, for that this was a Provincial Constitution, that at that time, viz. 17. E. 3. Tithes of Sylva caedua shall be paid; By which Constitution the commonalty finding themselves grieved, exhibited a Bill in Parliament the same year 17 E. 3. reciting the Ancient Usage of not paying such Tithes, and the last Constitution to the contrary, and prayed a Prohibition to the contrary: To which Bill answer was made in this manner, viz. Be it done in this case, as it hath been done before this time: And the next year another Petition was made in Parl. for the same cause; to which it was answered also, That where Tithes of Wood have not been used to be paid by custom, that a Prohibition shall be granted: And these Acts of Parliament the Plaintiffs Counsel produced out of the Parliament-Rolls. Crook Justice gave the Rule, viz. Quod de grossis a●boribus Decimae non dabuntur, sed de Sylva Caedua Decimae dabuntur. Vid. Dr. & Stu. 164. a. 169. b. Anscombe said, The Doctor and Student mistook the maker of that Constitution of Stratford Archbishop.  
In a Prohibition for Tithes of Wood it was suggested, That in the Parish there is a custom, 
Somerton and Cotton's Case. Cro. par. 1.  that all the Parsons of the said Church, time out of mind Habuerunt & gavisi fuerunt such Lands, parcel of the Manner of F. in recompense of all Tithe- Wood within the Parish: It was the Opinion of the Justices, that it was a good Prescription; for it may be that at the beginning all the Land was parcel of the manor, and then the allowance of the Profits of this Land was allotted in discharge of the Tithes of all the Woods within the Parish.  
In Prohibition to stay a Suit in the Ecclesiastical Court for Tithes- Wood it was showed, that the custom of the Parish is, That the Owners of any House and Land in the Parish, who pay Tithe to the Parson, 
Norton and Fermor's Case Cro. par. 3.  ought not to pay Tithe for Wood spent for Fuel in their Houses: It being found for the Defendant, the Issue being upon the custom; It was said, That notwithstanding there were any such custom, yet Tithe ought not to be paid for Wood spent for Fuel, nor for Fencing-stuff, but per Legem terrae he ought to be discharged thereof. Resolved, It is not the jure per Legem terrae, that any one is discharged of them; for it is usual in Parishioners to allege a custom, but not to allege that per Legem terrae he is discharged: And in this case the Plaintiff in the Prohibition having alleged a custom, and it being found against him, a Cousultation was awarded.  
A Composition was betwixt an Abbot and a Parson, that in recompense of the Tithes of all the Woods within the manor, whereof the Abbot Owner, That he should have to him and his Successor 20 Loads of Wood every year in 20 Acres of the said manor to burn and spend in his House: The Parsonage was Appropriate to the Abbey, and after the Abbey was dissolved; the King granted the Parsonage to one, and the 20 Acres to another. It was Resolved, That by the Unity the Estovers were not extinct; for it they be Tithes they are not extinct by this Unity of possession, for that Tithes run with the Lands: and Tithes de jure Divino & Canonica Institutione do appertain to the Clergy.  
Wool of Sheep is Tithable proportionably to the time they are in the Parish; as thus, viz. The Parson shall have Eight pound of Wool in Eighty, of Forty Sheep in the Parish a whole year: Four pound of Wool in Forty, if they were there but half the year: Two pound of Wool in Twenty, if they were there but Three months: and but the Tithe or Tenth of the Twelfth part of the Wool, if the lay and fed but One month in the Parish. The Wool of Sheep shorn and dying before Easter next following such shearing, is not Tithable, unless the Parson or Vicar can allege a special Prescription for it. Therefore Q. where by Prescription such Tithe is claimed 
a Fitz. N. B. Consultation 51. g. . It is said also, That a custom to pay a halfpenny for the Wool de ovibus venditis, after shearing and before Michaelmass, is good; and that the Sheep discharged shall be wethers as well as Ewes 
b More. Case. 1283. . Also Wool-locks and Flocks of Wool, after the Wool made, are likewise Tithable, if there be more than ordinary left, otherwise not: And if a Prescription be alleged to be discharged of Locks of Wool, it must be set forth of Wool casually lost 
c More. ibid. . For Wool and Lamb, no Action lies upon the Statute for not setting out of Tithes, for they are no Predial Tithes: and no Action lies upon this Statute for Small Tithes. vid. Brownl. Rep. par. 1. Cases in Law, etc. yet Wool and Lamb are said to be Predial mixed Tithes. Mich. 8 Jac. B. By the Decree or Canon of the Provincial Constitutions the payment of the Tithe of Wool is regulated as the Tithe of Lambs, viz. That if the Parishioner hath under Seven Fleeces, he shall pay a Halspeny for every Fleece; and if there be Seven Fleeces and under Ten, than the Parson or Vicar is to allow a halfpenny for every one that is wanting of Ten. Lindw. cap. Quoniam propter. And albeit by the said Decree, Election is given to the Parson to receive his Tithe in manner aforesaid, or to let them run on till a Fleece in kind be due in the ensuing year; yet it seems by the Common Law Tithes must be paid annually 
d P. 14 Eliz. Harpur's Rep. . Although Tithe cannot be denied of Locks and Pelts of Wool, where there is much in quantity; yet it hath been Resolved, That where Tithe-Fleeces of Wool are paid, there shall be no Tithe paid of the Locks and Pelts of Wool 
e Cro. El. 363. T. . Also where the custom is to shear the Necks of Sheep about Michaelmass, to prevent the tearing off of the same by Thorns by briers in the Winter, if this be done without fraud, and not to deceive the Parson, than no Tithe shall be paid for the same 
f Rol. 1. c. 45. z. ●4, 15, 16. Bulstr. l. 3. 242. Fess & Parker's Case. . But for the Wool of Sheep dying of the Rot, or any other disease, or killed or sold by the Owner, Tithe shall be paid ratably for the same 
g Rol. 1. 646. z. 18. . And yet it hath been otherwise Resolved, and that Tithe shall not be paid of the Pelts and Fells of Wool of Sheep which die of the Rot, without a Special custom for it: For where the Vicar of Kilmonsden in the County of Somerset, Libelled in the Ecclesiastical Court for Tithe of the Wool of Sheep, which died of the Rot, a Prohibition was granted 
h Tr. 3. Car. B. R. Ashton & Wilters Case. . Nor shall Tithe be paid of the Wool of those Sheep, which after they be shorn, do die before the Feast of Easter next following: The Reasons are, (1) Because they are but of small or no value. (2) Because the Owner of the Sheep hath paid Tithes for them the same year, and there shall not be a double Tithe paid for one and the same thing in one and the same year. (3) Because Tithe shall be paid of the clear profit only; but if the Sheep do die before the Feast of Easter, all the profit of them is lost, for which reason to demand Tithes for the same, were Afflictionem addere Afflicto 
i 15 Car. B. R. adjudged. vid. M. 2. Car. B R. Poph. 197. Hugh. Abr. dimes, Sect. 5. §. 21. . Where a Prohibition was prayed, because the Parson Libelled in the Ecclesiastical Court for the Tenth part of a Bargain of Sheep, which had depastured in the Parish from Michaelmass to our Lady-day: the party Surmizing, That he would pay the Tenth part of the Wool of them, according to the custom of the Parish. The Court would not grant a Prohibition, for that by this way the Parson might be defrauded of all, and the Sheep being now gone to another Parish, he cannot have any Wool at this time, because it was not the time or season of shearing. Note in that Case it was said, That de Animalibus Inutilibus, the Parson shall have the Third part of the Bargain for Depasture, as Horses, Oxen, etc. But de Animalibus Vtilibus, he shall have Tithe in specie 
k Mich. 2 Car. B R. Hob. 197. . Finally, to obtain a Prohibition a man alleged inter alia a custom, That they used to clip the Wool from the Necks of their Sheep for the preservation of them, as aforesaid, and at Shearing they used to pay the Tenth Fleece, in consideration whereof they used to be discharged of the payment of Tithes of Neck- Wool: Issue being joined upon this and other Prescriptions then pleaded, and found against the Plaintiff. It was moved, That no Consultation might be awarded, but it was Adjudged for the Defendant; for the Prohibition is grounded upon the Prescription, and being found against it, that, etc. Wherefore being found for the Plaintiff, a Consultation was granted. Trin. 18 Jac. B. R. Jouce & Parker's Case. Cro. 2. Par. 575. vid. Bulstr. 3. par. 242, 243. the same Case. Hughe's Abridg. dimes, Sect. 5. §. 23.  
An Action of Debt brought upon the Statute of E. 6. for not setting forth of Tithes, 
Trin. 8 Jac. Rot. 134. Pain vers. Nichol. Brownl. Rep. par. 1. ●ctions of Debt.  and the Plaintiff declared as well for the Predial Tithes, for which he might well bring his Action, as for other Tithes, as of Wool and Lamb, for which no Action on that Statute would lie; and upon Trial the Jury found for all, as well for those that would, as would not bear an Action; and after a Verdict this Exception was taken, and judgement arrested. If a man pay Tithe of Lamb at St. Marks-tide, and after at midsummer he shear the rest of the Lambs, 
Pasch. 16 Jac. 〈◊〉 inter Ni●●cls & Hooper, per Cur.  viz. the Nine parts, he ought to pay the Tithe of Wool for them, although there be but Two months between the time of payment of the Tithes of the Lamb that were not shorn, paid with their Fleeces, and the shearing of the rest, for it is a new increase; in this case Prohibition was therefore denied. 
Tr. 12 Jac. B. R. between Marskall and Price. Dubit. Mich. 14 Jac. B. R. between Joyse and Parker. per Cur.  But a man shall not pay any Tithe of Herbage of Sheep, for that he pays Tithe of the Wool, for otherwise he should pay Tithes twice of the same Increase. If a man shear his Sheep only about the Neck to preserve them from the Vermin, and not for the profit of the Wool, the Parson shall have no Tithes thereof; but otherwise it is, if they are much shorn by Covin for the benefit of the Wool: the Law is the same, if they are shorn about the Necks without fraud but two Months before and two Months after Michaelmass to preserve them and their Fleeces from the Brambles, 
Case ibid.  no Tithes shall be paid thereof, for it appears that they were not shorn for the benefit of the Wool, it being done at that time before the Flecces are increased after their being shorn throughout. 
P. 14 Car. B. R. inter Dent & Salvin, per Cur.  Likewise, if a Parishioner cut off the dirty Locks of his Sheep, for their better preservation from the Vermin, before the Shearing-time, and that without fraud, no Tithes shall be paid thereof; and Prohibition granted in this case. But if a man kill sheep, he shall yet pay Tithes of the Wool that comes of them, 
Ibid.  but not for their Skins.  
For a Prohibition for suing for Tithes of Locks of Wool, it was suggested, he had paid the Tenth Fleece of Wool in satisfaction of all Locks and Tithes due for Wool: 
J●s●p & pains Case. Cro. par. 1.  The Court held, that in this case the substance of the Prescription was good enough, because Locks be not of the same value with the Fleece: But in regard of a fault in the Suggestion, that it was not (that they had usually paid) which is issuable, a Consultation was awarded.    

CHAP. XXXIII.  
Of Banns.  

1. Whence the probable derivation of that word, and what it signifies.  
2. The manner and form of Publication of Banns according to the Provincial Constitutions.  
3. By whom Licences for Dispensation of Banns may be granted according to the Canons; Also to whom, and under what Conditions or Cautions.  
4. Requisites or Preparatories in Law unto such Licences.  
5. A Case at Common Law, with the Resolutions of the Court relating to Banns, with the power of the Ecclesiastical Jurisdiction therein.   
(1.) BANNS (bannus vel bannum) if Ban in the British Language signifies clamour, as Mr. Blount gives it in his Nomo-Lexicon, than we need seek no further for its Derivation: Bannos, Q. an non declinata voce à Graece. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 omne, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 innotescat. Mutatur enim facile 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. For though the Word be frequently mentioned by the Feudists, and thence applied to other uses, as to that which we here in this Kingdom call a Proclamation, whereby any thing is by Authority publicly Commanded, Permitted, or Forbidden, Vincen. de Franch. Decis. 521, & 360. yet in the sense here meant and intended, it is not so properly a Proclamation as a Publication or a public Notice-giving. And therefore by the word Banns, as we use it, is intended that publishing of Matrimonial Contracts in the Church tempore diunorum, before solemnisation of Marriage, to the end, That if any have aught material to object against the intended Marriage signified by such Publication, either in respect of precontract or otherwise, they may seasonably make their Exception against it, consonant to the very Letter of the Canon Law, where Banna sunt proclamationes Sponsi & Spansae in Ecclesiis fieri solitae. c. 27. extr. de Spons. etc. ult. Qui Matrim. pos. etc. ult. de clandest. Despon. vid. Gothof. ad nou. Leon. 89. in med. ibi. Hottoman is very confident that there is both bannns and bannum, and that they signify Two distinct things, and neither of them to our purpose; for according to his exposition, the one should signify an Edict what day their Vassals or Slaves furnished with Horse and shall encounter one another; the other a Sanction or Decree, that is, a Mulct or Fine imposed on him that does not obey the Edict. Hottom. in verb. Bannus. De verbis Feudalibus.  
(2.) In the Provincial Constitutions Banna are public Proclamations or Denuntiations; Lind. Provin. Constit. de cland. Despon. c. 1. glos. verb. Bannorum. Others describe them to be Edicta publice proposita; Petr. de Anchor. in cap. cum in tua Ext. de Sponsal. By the said Provincial Constitutions the Banns ought to be Solemn Publications, that is, they ought to be thrice published in the Parochial Churches where the contracting Parties and their Parents dwell, on 3 Sabbath days or 3 Festival days (allowing some interval of time between each) at the time of Divine Service, when most of the Parishioners are assembled together, by the Parsons of the said Parishes respectively, or others in holy Orders, at such times and seasons wherein solemnisation of Marriage is not Canonically prohibited, glos. verb. Bannorum, ubi supra. Yet where three Festivals immediately succeed each other, such Publication in them made holds good in Law; Prov. Const. de Spons. glos. in verb. a se distantibus: As also shall the Marriage itself, when once solemnised, albeit such Publication of Banns, as aforesaid, did not precede the same. gl. in v. Solen. Edit. de cland Despon. ubi supra.  
(3.) But by the Ecclesiastical Canons now in force, it is Ordained 
i Can. 101, 102, 103, 104.  That no Licence for the solemnisation of Marriage shall be granted, without thrice open Publication of the Banns, according to the Book of Common Prayer, by any Person exercising any Ecclesiastical Jurisdiction, or claiming any privileges in the right of their Churches; but shall be granted only by such as have Episcopal Authority, or the Commissary for Faculties, vicar's General of the Archbishops and Bishops sede plena, or sede vacant, the guardian of the Spiritualties, or Ordinaries exercising of right Episcopal Jurisdiction in their several Jurisdictions respectively, and unto such Persons only as be of good State and Quality, and that upon good caution and security; which shall contain these four Conditions. (1) That therein is not any Impediment or Precontract, Consanguinity, Affinity, or other lawful Cause to hinder the said Marriage. (2) That there is not any Suit depending in any Court before any Ecclesiastical Judge, touching any Contract or Marriage of either of the said Parties with any other. (3) That they have the consent of their Parents or Guardians. (4) That they shall celebrate the said Marriage publicly in the Parish-Church or chapel where one of them dwells, and that between the hours of 8 and 12 in the Forenoon. Pasch. 8. Car. B. R. case Matingley verse. Martin. It was resolved, that if any mary without the Proclamation of Banns, or Licence to dispense therewith, they are citable for the same in the Ecclesiastical Court, and no Prohibition lies in the case. Jones Rep.  
(4.) Before any such Licence (as aforesaid) can be granted, it must appear to the Judge by the Oaths of two sufficient witnesses, that the Consent of the Parents or Guardians is thereunto obtained; and one of the Parties must personally swear, that he believes there is no let or Impediment of Precontract, Kindred, or Alliance, or of any other lawful Cause whatsoever, nor any Suit commenced in any Ecclesiastical Court, to hinder the said Marriage according to the Tenor of the said Licence; But in case the Parties be in Widowhood, than the Clause relating to the Parents Consent may be omitted; the penalty for offending in the premises is six months' suspension ab executione Officii in any Commissary for Faculties vicar's General or other the said Ordinaries, together with a vacating of every such Licence or Dispensation, and subjecting the Parties marrying to the punishments appointed for clandestine Marriages. The Syntagmatist tells us, that there is a Canon extant, made by John Metropolitan of Muscovy, who is held as a Prophet in Russia to this day, that Matrimonium non nisi publice in Ecclesiis contrahatur. Petrus Gregor. Tholos. 
k Synt. jur. l. 9 c. 5. n. 10.   
(5) In the case of Matingly against Martin it was resolved (1) That the Cognuzance of all fornications, Adulteries, and suspected living in Adultery doth appertain to the Ecclesiastical Court, 
Pasc. 8. Car. B. R. Matinley verse. Martin. Jones Rep.  (2) That if any marry without proclamation of the Banns, & without a Licence to dispense therewith, they are citable in the Ecclesiastical Court for the same, and no Prohibition lies in that case (as aforesaid.) (3) That if any Licences to marry without Banns be granted by the Ordinary of the diocese, or by Commissaries or Officials in their Jurisdictions, or by the Archbishop in his Province before the Stat. of 25. H. 8. The Cognuzance of the sufficiency of such Licence, of the form of the Dispensation, and of the Conditions and Provisoes of such Licence, and whether sufficient Notice thereof were given or not, are examinable only in the Ecclesiastical Court; and when the Licence is sufficient, and the Provisoes well and duly observed, and Notice thereof, and This be refused or rejected in the Ecclesiastical Court, yet no Prohibition lies, but the Party grieved must have his Remedy by way of Appeal, and not otherwise. (4) That where power is given by Act of Parliament to the Archbishop to grant Licence either de novo or in Confirmation of his Authority, yet the form of the Dispensation, and the observation of the Provisoes and Conditions thereof, and whether sufficient Notice were given or not, are examinable in the Ecclesiastical Court; and if they there adjudge in that case irregularly, no Prohibition lies, but the Remedy is only by way of Appeal: But if it come into question in the Ecclesiastical Court, whether the words of the Act of 25. H. 8. do give sufficient power to the Archbishop to grant a Licence, there if the Ecclesiastical Court doth judge against the power, a Prohibition lies, and not otherwise; but if they allow the Licence in point of power, and only insist upon the Form, and Notice, and other Circumstances, in such case a Prohibition doth not lie: For though a power to grant Licences be by Act of Parliament, which is a Temporal thing, yet the Licence itself remains an Ecclesiastical thing, and the examination of all these things (saving the Power) remains to the Ecclesiastical Court as it was before.   

CHAP. XXXIIII.  
Of Adultery.  

1. What Adultery is, why so called, and in what Court Cognizable.  
2. The Punishment of Adultery under the Levitical Law; and what it was anciently by the Civil Law.  
3. The several Punishments thereof anciently according to the Quality of the Offenders respectively.  
4. Adulterers compared to Idolaters; strange Punishments of Adultery among the ancient Pagans.  
5. The Severity of certain Ecclesiastical Laws in ancient times against Adultery.  
6. The Customs among the Arabians, Mahometans, Tartars, Indians, Pagans, in punishing Adulterers.  
7. The Civil Law touching jealousy, and second Marriage the former Husband then living.  
8. Adultery, what in sensu largo; how the punishment thereof is now mitigated at the Civil Law to what it was anciently; and how punished at the Canon Law.  
9 The diversity of punishments inflicted on Adulterers according to the divers Customs of Nations respectively.  
10. In what respect the Temporal Laws may take some Cognizance of Adultery.  
11. What the Saxons of old in this Kingdom called the Punishment of Adultery; the remarkable Case of Sr. Jo. de Camois.  
11. Adultery falls under a Threefold Consideration of Law; the History of the Adulterous Stork.   
(1.) ADULTERY, or Adulterium, quasi [ad alterius thorum] where the Rights of lawful Matrimony are violated, Lindwood's Const. de Offic. Archipresb. verb. tertium mandat. is the incontinency of Married persons, or of persons whereof the one at least is under the Conjugal Vow. 
Adulterium est illicitus Concubitus conjugati & conjugatae.  This is properly cognizable within the Ecclesiastical Jurisdiction; the Conviction whereof is by Examination and other Legal proof requisite by the Law of the Church; which if committed by any of the Clergy, duly convicted thereof, he was punishable by Imprisonment at the discretion of the Bishop or Ordinary of that diocese wherein he resides. 
b St. 1. H. 7.   
(2.) By the Levitical Law Adultery was punished with Death in both Sexes, 
c leu. 20. 10. Deut. 22. 22.  yea Stoned to death. 
d Joh. 8. 5.  By the Civil Law also, which calls it the Violating of another man's Bed, the Punishment anciently was Death, both in the Man and in the woman: But afterwards the Punishment was mitigated by that Law as to the Woman, she being first whipped, and then shut up in a monastery; but by the Canons other Laws are inflicted.  
(3.) At the Synod in Ireland, held by St. Patrick and other Bishops an. 456. by the 19 th'. Canon thereof the Adulterers were to be excommunicated. At the Council held at Berghamstead by Bertwald Archbishop of Canterbury, the Bishop of Hereford and others, in the fifth year of withered King of Kent an. 697. several Laws were made against Adultery, according to the several qualities and conditions of the Persons offending respectively; beside Excommunication against all such; if the Adulterer were an Alien, he was to departed the Land, and to take his Sins and his Estate away with him: If a Soldier, then to be fined five pounds: If a rustic or country Husbandman (known in the Law by [Paganus]) then to pay fifty shillings: If a Priest, then to be inhibited from administering the Sacrament of Baptism.  
(4.) Boniface Archbishop of Mentz, when he was the Pope's Legate in Germany, an. 745. in his Epistle to AEthelbald King of Mercia, compares Adulterers to Idolaters; and moreover says, that the Greeks and Romans compared Adultery to Blasphemy, when committed by or with one of religious Orders; and adds, that among the Pagans, in the time of the old Saxons the very practise was, that if a Virgin Adulterously defiled her father's Family, or a Married woman played the whore, they were enforced to be their own Executioners, and by their own hands to reduce themselves by Strangling to dead corpse, which being after burnt, the Adulterer was hanged over the Ashes thereof; and at other times the Adulteresses were by those of their own Sex, out of their Zeal to Chastity, whipped from Village to Village, till they were whipped to death. In Antiqua Saxonia, 
In epist. Bonifac. ad Ethelbald. Ang. Reg. Antiq. Brit. f. 60. n. 20.  ubi nulla est Christi cognitio, si Virgo in paterna domo maritata, sub Conjuge fuerit adulterata, manu propria strangulatam cremant, & supra fossam sepultae corruptorem suspendunt; aut cingulo tenus vestibus abscisis flagellant eam castae matronae, & cultellis pungunt, & de Villa in Villam inter se occurrunt novae flagellatrices, donec interimant. 
Seldeni ad Eadmerum Notae & Specilegium. p 185. l. 37.  By the Laws of William the Conqueror the Adulterer was to be put to death. Si Pater deprehenderit Filiam in Adulterio in domo sua, seu in domo Generi sui, bene licebit ei our (lege forsan occire, occidere) Adulterium.  
(5.) In the Ecclesiastical Laws of Keneth King of Scots, an. 840. By the 14 th'. and 15. Canon thereof it is ordained, That he who deflowrs a Virgin, shall die for it, unless she desires him for her Husband; and that he who Adulterates another man's Wife not dissenting, Both shall suffer the severest punishment, unless she were under a force, in which case she shall be acquitted. By the Ecclesiastical Laws of Hoel Dak King of Wales, a 940. it was a sufficient cause of Divorce, if a Woman did but kiss any other man than her Husband. l. 18. Yea she must lose her Dower and all her Rights by that Law, and only for a kiss; and by the same Law Adultery in the Man was held as a kind of Hostility. In the time of the latter Saxons by the Ecclesiastical Laws of King Edmund, a 944. Adulterers and Murderers had one and the same punishment, and both alike denied Christian Burial. After him, by the Ecclesiastical Laws of King Knute, an. 1032. Adulterers and such as violated the Chastity of a Widow or a Virgin, were to be banished and their Estates confiscate: And in case a Wife played the Strumpet, her Husband living, he was to possess himself of all her Estate Real as well as Personal, and she to have her Nose and Ears cut off, and an indelible Blot with perpetual Infamy to remain upon her Family.  
(6.) The Arabians (as Strabo relates) though they used Incestuous Copulation with Sister and Mother, yet punished Adultery with death; but that only was Adultery in their account, which was out of the same lineage or Kindred, for otherwise All of the same Blood to use the same Woman, was but their (Incestuous) Honesty. And by the very Koran not only is an unchaste Look on another man's Wife forbidden, but also if a Wife be convicted of Adultery by the testimony of four Women, she is confined to perpetual Imprisonment in her own house till she dies, and none suffered to come at her: And in some parts of the Grand Signiors Territories the Turks have a custom to thrust the Adulterers head into a Dung-Wallet of the Panch of a Beast new killed, and so to carry him through the Streets; but for a Christian to have Carnal knowledge of any of their women, is death, unless he turn Turk. And with the Tartars their Women are so chaste, as that Adultery is seldom heard of among them, but when it happens to be committed, they punish it also with death. 
e Vin. l. 3. c. 86.  Among the very Pagan Indians as at Dominica, Cuiana, Bantam, Japan, and other parts of the Indies Adultery is punished with death: 
f scot Hist.  Likewise the Javans and Chinois or Chinesses inflict the same punishment of death on Adulterers; and at Pequin, the City where the King of China makes his Residence, the Dowries or jointures of convicted Adulteresses are bestowed on the Hospitals of Female Orphans; 
g Purch. Pilg. p. 3. l. 2. c. 2. § 5.  and at Petane, a Province joining to Chinas' their Noble Personages are for Adultery even by their own Parent either strangled or stabbed to death, at their own choice which. At Brasile, the Husband might kill his Adulterous Wife, 
h Lerius c. 17.  and at Mexico or New Spain Adultery was death; 
i Mex. Hist.  also by the Laws of the Inguas, the ancient Lords of Peru, Adultery and Incest with ascendants or descendants in the Direct Line was punished with death; yet they held it no Adultery to have many Wives, whereof one only was principal, with whom Marriage was contracted, whom they wedded and received with a particular Matrimonial Ceremony, She only was held as the Adulteress, and with the Adulterer died for it; the others being rather Concubines than Wives, were not understood by them as capable of this offence or punishment. 
k Purc. Pil. p. 3. l. 5. c. 6.  Indeed in the Kingdom of Angola in AEthipia and at Bengala in the Indies Adultery is but the loss of the Adulterers Nose, 
l Lins. c. 16.  and in Guinea it is in the Woman but a Divorce and Banishment from her house, and in the Adulterer but a forfeiture of 24 pesoes of gold to the King; and among the Jews, now since the Sword and sceptre departed from Judah, it is but a Penalty in stead of a punishment, and but a standing up to the Chin in cold water to quench the Flames of Lust. These precedents are not here quoted for Laws, but only to let us see what Constructions even Pagans and Mahumetans have made of Adultery.  
(7) By the Civil Law, a man jealous of his wife, may accuse her before a Competent Judge of Adultery, if after three admonitions, in the presence of three credible Persons, given to the Person suspected of too much Familiarity with her, he refrain not from her company and communication with her. Auth. Coll. 9 By which Law also both Sexes are punished as guilty of Adultery; if a Woman, whose Husband is abroad in the wars, or otherwise absent, marry again, before she hath certain intelligence of his death either from the Commander under whom he served, or from the governor of the place where he died; for without such certain intelligence, if she presume to marry again (how long soever her Husband is otherwise absent from her) both she and he who married her shall be punished as Adulterers; and if her former Husband after such her second Marriage return back again, she also shall return back again to her former Husband, if he will receive her, otherwise she shall live apart from them both, Auth. Coll. ibid. Blackden married one within age, and after disagreed, so that they might Marry elsewhere; and the first wife had Issue by other Husbands, and died; and Blackden was sued in the Ecclesiastical Court by an Informer, supposing he had married a woman, living his other wife, and Blackden there proves the disagreement, by which he had Sentence for him against the Informer, and yet he was taxed to give the Informer 20 Marks for costs, which he refused to pay, and moved for a Prohibition, which was granted: For it was Injustice to allow costs to one who had vexed him without cause, and when Sentence had been given against the Informer.  
(8.) This Adultery or Adulterium, quasi [ad alterum] being (as aforesaid) an unlawful access ad alterius thorum, although it properly refers to one or both such as is or are in a Matrimonial State, yet by abuse of words it is also commonly understood of corrupting or violating the Chastity of a Virgin or a Widow; as when we usually say, such or such natural things are adulterated, when by reason of some Artifice they are corrupted and become not truly natural; and such Wares and Merchandizes are adulterated, when there is some Fraud in the case, and so Adultery is repugnant to the very Nature of Matrimony, which of Two makes One, when as the other of One makes Two: The punishment whereof was anciently by the Civil Law, Capital as to the Man: But by the latter Laws of the authentics, the Women are first whipped, then thrust into Monasteries; and by the Canon Law it is Excommunication.  
(9) Plato made a Law, that whoever killed an Adulterer, should go unpunished. The Inhabitants of Arabia Foelix punished it with death. Seleucus, otherwise Nicanor, King of Syria, that succeeded Alexander in the Government of that part of the Empire, decreed that whoever was apprehended in Adultery should be exoculated, or have his eyes plucked out, which afterwards happened to be impartially first executed on his own Son 
o AElianus. . And albeit according to the proper Construction of words there is a difference put between Adulterium and Stuprum, the former referring to persons married, the other to Widows or Virgins. Modestin. in l. inter Stuprum ff. de verb. Sig. Yet by the Julian Law the word [Adultery] is used indifferently in reference to both: Id. Modest. in L. Stuprum. Ad L. Jul. de Adult. But to speak properly, they are not Termini convertibiles, for though all Adultery be whoredom, yet every whoredom is not Adultery; each of which have their respective punishments according to the Laws and Customs of the place where they are committed. Grotius out of Lessius affirms, that the Adulterer and Adulteress are not only obliged to indemnify the innocent party as to all charges of Alimentation of the unlawfully begotten, but also to make good what damage the Legitimate Children may thereby suffer in their Inheritance, and whoever doth lessen the Reputation of a Virgin either by force or insinuations, shall refund to her as much as she is thereby fallen in value, upon the hopes or expectation of her Preferment in Marriage: But if by his solicitations he hath obtained the use of her body under a promise of Marriage, he is obliged to marry her accordingly. Grot. de jur. Bell. lib. 2. cap. 17. §. 5. & Less. lib. 11. cap. 10. Dub. 6.  
(10.) Although this Sin of Adultery, is properly and of right belonging to the Cognizance of the Ecclesiastical Jurisdiction, yet it will not be denied, but that as it is an offence against the peace of the Realm (for which reason some are of opinion that Avoutry or Bandry is an offence Temporal as well as Spiritual) the Justices of the Peace may out of their Sessions require Surety for the good Behaviour of such as offend therein, as also of such as by Common Fame are reputed Resorters to houses suspected of maintaining Adultery or Incontinency, of such as keep such houses, of lewd Women found in such houses, of common Whoremongers and common Whores; 
s 28. Eliz. by Wray, Anderson, & manwood. Crom. 140.  And upon Information given to a Constable, that a Man and a Woman be in Adultery or Fornication together (or that a Man and woman of evil Fame or Report are gone to a suspected house in the night) the Officer may take company with him, and if he find them so, he may carry them to Prison, or before a Justice of Peace to find Sureties for the good Behaviour. 
t 13. H. 7. 10. Br. Travers. 432.   
(11. The Punishment of Adultery is diversified according to the Laws and Customs of several Nations respectively as forementioned, and the Penalty thereof with the Saxons of old in this Kingdom was called Lairwite or Lecherwite, and Legergeldum, from two Saxon words signifying it seems concumbere and mulcta, 
v Bl. Nomo. Lex. Verb. Lairwite.  a Fine or Custom of punishing offenders of that kind; which privilege is said to have belonged anciently to the Lords of some manors, in reference to their Villains and Tenants. 
w Vid. Fleta. l. 1. c. 47. to this purpose & Co. Inst. par. 4. fo. 206.  And by Statute Law, as also by the law of the Land, a Wife that clopes, and departs from her Husband with an Adulterer, and refuses to be reconciled to him, loseth or forfeits her Dower or Jointure, 
x St. West. 3 c. 34. Co. 2. p. Inst. fo. 433.  yea though she departed from him with his own consent, to which purpose remarkable is that Case of Sr. John de Camois, Son of the Lord Ralph Camois, in the time of Ed. the first, who of his own voluntary Will gave and demised his own Wife Margaret, a Daughter and Heir of John de Gaidesden unto Sr. William Pannell Kt. and together with her gave, granted released, and Quit-claimed all her Goods and Chattels etc. so that neither himself nor any other in his name, should ever after make any claim, or challenge any interest in the said Margaret, or to or in her Goods or Chattels, etc. Whereupon, she demanding her Dower in part of the Lands of Sr. John Camois there happened a Suit at Law, wherein she was overthrown by judgement given, That she ought to have no Dower out of his Estate, upon the Stat. of Westm. 2. Quia recessit à Marito suo in vita sua, & vixit ut Adultera cum praedicto Gulielmo, etc. 
y Camd. Brit. tit. Sussex. & Co. Inst. 2. p. fo. 475.   
(12.) There are of the Church of Rome, who hold that Adultery in conjugato cum soluta is minus peccatum quam in conjugata cum soluto; the reason they give for it is, for that it is far more repugnant to the Law of Nature that one Woman should be joined to two Men, than e contra, and suppose that Bigamy in the patriarches of old is an impregnable Fortification of that Reason; the Feminine Sex will give them but little thanks for this Opinion: But leaving them to enjoy the one and the other, we hold that This, as to the Inquiry and Punishment thereof, is properly within the Ecclesiastical Cognizance, it being most consonant to Reason, that in what Jurisdiction Matrimonial Causes are controvertible, in the same should the Violation of Conjugal Rights be discussed; to which end, as well the Civil as Canon Law (though that especially) are furnished with great variety of Constitutions, to obviate all manner of circumstances relating to this Subject. Pasch. 8. car. B. R. Case Matingly verse. Martin. It was resolved, that the cognizance of all Fornications, Adulteries, and of persons suspected to live in Adultery, doth belong to the Ecclesiastical Court. Jones Rep. So then Adulterium being quasi Accessio ad alterius thorum, is the violation of another's Bed; whence it is required, that either both, or one of the Parties, be under the Matrimonial Vow; for that conjugal circumstance, either in the Male or Female, is as the causa sine qua non, that the luxurious Act falls under the notion of Adultery, in distinction from acts of the same kind under other circumstances: For the Law holds, that it may be committed in a threefold manner, either ex parte viri, vel feminae, vel utriusque always supposing that one or both are matrimonialized, and both living. The Penalty of Adultery hath varied according to the Laws and Customs of several Nations, and of several Ages in the same Nation; as appears by what hath been said on this Subject; 
Lessius de Just. & jur. lib. 4. cap 3. Dob. 10. nu. 71.  The punishment of this epidemical evil, the very Brutes and mere Animals have given us a precedent of, if credit may be given to such as have made report of the Stork, of which Lessius writes out of another Author, as being a Creature of strange abhorrency and revenge of Adultery, that by the very instinct of Nature the jealous Animal, impatient of vindicating his defiled Nest, summoned others of the same Feather to advise in the Case, Testifying that in his own time a certain Stork being as it were convicted of Adultery per olfactum masculi sui or the smelling of her Male, he convened a Flock of other Storks, before whom he so prosecuted (Nescio qualiter, says the Author) the Indictment against the Female Stork, that she was first deplumed, then torn in pieces, by the rude Multude of the other Storks, as if in a solemn Council they had all unanimosly sentenced her to death as an Adulteress. If the report seems improbable, yet the Moral is very applicable.   

CHAP. XXXV.  
Of Bastards and Bastardy.  

1. What Bastard signifies; the derivation of that word.  
2. The difference between Bastard and Mulier; what Mulier signifies; and why so called.  
3. Bastardy distinguished at the Common Law into Special and General Bastardy.  
4. The Presumptions of Law touching Bastardy, in case of the husband's obsence from his Wife.  
5. Five Appellations of Bastards for distinctions sake at the Civil Law, with respect to the several qualities of the Persons of whom they were begotten.  
6. The different modes of prosecution of Bastardy in the Temporal and Ecclesiastical Courts.  
7. Limitation of Time in reference to Birth and Bastardy by the Civil Law; The chaste Widow of Paris, whose Child born the 14 th' Month after her husband's death, was adjudged Legitimate.  
8. Of a Child born before Marriage, or immediately after Marriage; or long after Marriage of a Woman whose Husband died without Bedding her, whether Bastard or not?  
9 The legal computations of Time touching the Birth of a Child, whether Legitimate or not, And of such as are begotten after a Divorce.  
10. The punishment of a Woman having a Bastard, that may be chargeable to the Parish.  
11. How the same Person may in divers respects be both a Bastard or Nullius Filius, and yet a Son.  
12. The Physicians report in Court, in a Case at Common Law, how long a Woman may go with Child.  
13. The Bishop's Certificate requisite in a Plea of Bastardy, indisability of a Plaintiff.  
14. The power of the Justices of the Peace, and of the Sessions, in reference to the reputed Fathers of Bastards.  
15. In an Action for saying such an one had a Bastard, a Prohibition to the Ecclesiastical Court, because they admitted the Defendants, Confession, but would not allow of his Justification.  
16. Who are held as bastardised at the Common Law.  
17. What a Mulier is at Common Law.  
18. Other Descriptions of Muliers and Bastards.  
19 The difference between the Civil and Common Law in point of Muliers and Bastards.  
20. What kind of Divorce shall bastardise the Issue.  
21. Different Resolutions touching Bastardy.  
22. A Man is divorced Causa Frigiditatis, Marries again, hath Issue by the second Wife, the first Living, Q. Whether that Issue be a Bastard.  
23. A Case of Remark touching this Subject adjudged in Ireland.   
(1.) BASTARD, Bastardus, Nothus, Spurius, Filius Naturalis, Filius Populi, Filius nullius, Incestuosus— Adulterinus, illegitimo coitu Progenitus. Bastard is a French word, Bastardd British; yet some are of opinion that the word [Bastard] hath its derivation from two Germane words [Boes art] that is, Degeneris ingenii. Q. an non è Graec. Bassaris. I e. Meretrix vel Concubina. Bastard and Filius Naturalis are both one 
a Cossanae de Consuet. Burgund. p. 1116. . Bastard is that Male or Female that is begotten and born of any Woman not Married, so that the child's Father is not known by order and judgement of Law, for which reason he is called Filius Populi 
b Terms of Law. verb. Bastard. St. 20. H. 3. 9 Mulier according to Vlpianus is a defiled Woman. .  
(2.) Bastard and Mulier are opposed each to other at the Common Law, Otherwise at the Canon Law. For at the Common Law by Mulier is meant and understood one that is lawfully begotten and born, and therefore where they are compared together we shall find at that Law this addition to them Bastard eigne or Elder, and Mulier puisne or Younger) and by the Common Law he or she that is born before Marriage, celebrated between the Father and Mother is called a Bastard; and by that Law, a Child begotten and born of a Woman out of Marriage, by one who after Marrieth her, is said to be not a Mulier but a Bastard 
c Ibid. verb. Mulier & Lit. tenors. lib. 3. cap. 6. Of Descents. . This word [Mulier] seems to be a word corrupt from Melior, or the French [Melieur] signifying at Common Law the lawful issue, preferred before an Elder Brother born out of Marriage 
d St. 9 H. 6. c. 11. and Smith. de Rep. Angl. lib. 3. cap. 6. . But by Glanvile such Lawful Issue seems rather Mulier than Melior, because begotten à Muliere, and not ex Concubina; for he calls such issue, Filios Mulieratos, opposing them to Bastards 
e Glanv. l. 7. c. 1. and Britt. c. 7. & skene de verb. fig. verb. Mulierarus filius. Vid. Co. on Litt. fol. 170. b. and 243. b. , Quia Mulieris appellatione uxor continetur, l. Mulieris 13. & ibid. gloss. De verb. sign.  
(3.) Bastardy [Bastardia] at the Common Law signifieth a defect of Lawful Birth objected to one begotten out of Marriage 
f Bract lib. 5. cap. 19 . which Law doth distinguish Bastardy into Special and General 
g kitchen fol. 64. . The later whereof being only a Certificate 
h d. Stat. 9 H. 6. 11. . from the Bishop of the diocese to the King's Justices, after just enquiry made, whether the Party enquired of, be Bastard or not; upon some question of Inheritance; and the former being only a Suit commenced at Common Law against him that calls another Bastard; This being called Bastardy special, because Bastardy is the principal and special matter in trial: As the other is called Bastardy General, because Inheritance is there the chief thing under debate and in contest; By both these significations Bastardy at the Common Law seems to be taken only for an Examination or trial, whether a man's Birth be illegitimate, and so does but rather imply what it is not, than express what it is 
i Vid. Bro. tit. Bastardy. nu. 29.  Which (according to a better Definition) is an unlawful state of Birth, disabling the party to succeed in Inheritance.  
(4.) It appears by what hath been said, that a Bastard is one that is born of any Woman, so as the Father be not known according to the order of Law 
k C●. 8. 102. ●. 65 sup. Litt. 244. . So that if any Woman hath a Child before her Marriage, it is a Bastard: And though the Father thereof after Marry the Mother, yet in the judgement of the Common Law it is still a Bastard, but at the Canon Law it is otherwise as aforesaid 
l St. 20. H. 3. c. 9 1 H. 6. 31. Co. on Litt. 244. . If one mary infra gradui Maritagii and hath thereby Issue, Q. whether it he a Bastard or Mulier in case Divorce doth after thereupon ensue 
m 48 Ed. 4. 28. and Broo. Sect. 48. and 93. E. 3. 32. . If there be Issue by a second Husband or Wife, the former then living, such Issue is a Bastard 
n 39 Ed. 3. 14. 7 H. 4. 9 18. Ed. 4. 26.  A Woman Eloping from her Husband, and Living in Avoutry (her Husband being beyond Sea that he cannot come at her) having Issue in this time, this Issue seems to be a Bastard: But by the Common Law, if the Husband be infra quatuor maria (he) within the Jurisdiction of the King of England, and his Wife have Issue in his absence, No proof is Admissable to prove the Child a Bastard, unless there be an apparent impossibility of Procriation in the Husband, in which case such Issue, albeit born within Marriage, is a Bastard 
o 43 E. 3. 19 7 H. 4. 9 7 H. 5. 9 44 E. 3. 10. 1 H. 6. 17. Co. on Lit. 244. . And by the Civil Law, if the Husband be so long absent from his Wife, or by no possibility of Nature the Child can be his, or the Adulterer and Adulteress be so known to keep company together, as that by just account of time, it cannot fall out to be any other man's Child but the Adulterers himself, it is accounted to be a Bastard: And yet in these very cases within this Realm, unless the Husband be all the time of the impossibility of Procreation (as aforesaid) beyond the Seas, the Rule of Law will hold true, Pater is est quem Nuptiae demonstrant 
p Rid l. view of etc. par. 3 cap. Sect. 2. .  
Note in debt upon an obligation by Cook Chief Justice; And so was the Opinion of the Civilians, That a Disagreement to the Marriage had under the Age of of Consent, at the Age it ought to be published in Court; otherwise the Issue may be Bastarded. For a Disagreement in Writing is not a sufficient Disagreement, nor a good Proof 
q Sir Walter Sand. verse. adam's and Cu●win. post dict. cale in Noy's Rep.   
(5.) The Law hath given several Appellations for the distinction of Bastards according to the different conditions of the persons of whom they were begotten; As when they were begotten by persons of a single and unmarried Estate, and of such as were kept as Concubines, the Civil Law called them Filii Naturales: if begotten of single Women, not designed for Concubines, for satisfaction of present Lust, than they were called Spurii: if begotten of such as the Law styles Scorta, or common Harlots by public profession, than they were called Manzeres: if begotten of Married Women, than they were called Nothi: if begotten between ascendants and descendants, or between Collaterals contrary to the Divine prohibition, than they are called incestuosis.  
(6.) Bastardy so stains the Blood, that the Bastard can challenge neither Honour nor Arms; and so disables him, that he cannot pretend to any succession to inheritance. The Temporal and the Ecclesiastical Laws with us do not differ as to matter of Bastardy, but something as to the prosecution thereof: The Ecclesiastical Law brings it two ways to judgement, Incidently and Principally; the Common Law makes two sorts thereof, General and Special. Incidently at the Ecclesiastical Law, when it is pleaded in Bar to a claim of something in right of Nativity: Principally, when by reason of some slanderous and reproachful speeches, it is brought before the Court as the principal matter in judgement to be alleged and proved, that thereupon Sentence may be pronounced accordingly by the Ecclesiastical Judge, Ad Curiam enim Regiam non pertinet agnoscere de Bastardia 
r Glanvil. lib. 3. cap. 13. . General Bastardy at Common Law, is so called because it is in gross objected in bar against a Man to disappoint him in the Principal matter of his Suit. Which, because it is of Ecclesiastical Cognizance, is sent by the Kings Writ to the Ordinary, to inquire whether the Party charged with Bastardy were born in, or out of Lawful Matrimony; And as the Ordinary finds the truth of the matter upon due examination, so he pronounceth accordingly in his Consistory, whereof he returns Certificate to the Temporal Courts 
s Ridley. ubi supra. . Special Bastardy at the Common Law, seems to be only that, where the Matrimony is confessed, but the Priority or Posteriority of the Nativity of him, whose Birth is in question, is controverted 
t ibid. .  
General Bastardy ought to be tried by the Bishop, and not by the Country 
l 18 E. 3. 40. . But Bastardy in this sense cannot be tried by the Ordinary otherwise than by virtue of the King's Writ, on some Suit depending in the Temporal Court 
m D. 1. Bastardy 55. 39 E. 3. 31. b. per Thorp. . When Issue is joined on Bastardy, before it be awarded to the Ordinary to Try it, Proclamation thereof is made in the same Court, and after Issue it is certified into Chancery, where Proclamation is made once a Month for three Months, and then the Lord chancellor certifies it to the Court where the Plea is depending; and after it is Proclaimed again in the same Court, that all such whom the said Plea concerns, may appear and make their Allegations before the Ordinary 
n 10 H. 6. cap. 11. ; whose Certificate of Bastardy is nothing to the purpose, unless it come in by Process at the Suit of the Parties 
o 7 H. 6. 32. b. . And this Bastardy ought to be certified under the Seal of the Ordinary, for it is not sufficient to certify it under the Seal of the Commissary 
p 20 H. 6. 1. . And although the Defendant be certified a Bastard by the Ordinary, yet the Certificate shall lose its force, if the Plaintiff be afterwards Nonsuit, for then the Certificate is not of Record 
q 18 E. 3. 34. .  
In the Case of Elborough against Allen, it was said by Crook, that for calling one Bastard generally, there is not any sufficient Ground of Action at the Common Law, but if there be any special Loss thereby, it shall be a good ground of Action at the common Law, as if a Man be upon Marriage, or in treaty for the sale of Land, whereby his Title is disparaged. Doderidge Justice said, That the word Bastard is generally of another Jurisdiction and belongs to the Ecclesiastical Court to determine what shall be Bastardy, and their Judgement is given for the damage, which the party had in his birth, and for that their Entry is quia laesis est natalitiis. And in this Case the Chief Justice said, that generally to say J. S. is a Bastard, J. S. hath not cause of Action given him thereby; but if there be a Temporal cause averred, the Common Law may proceed therein; for though Originally Bastardy be of the Ecclesiastical Jurisdiction, not Triable at the Common Law; and therefore as in its general nature it is of the Spiritual Jurisdiction, so being by its generality no ground of Action at the Common Law, yet if one be to sue for a Child's part, or sue for the Administration of his father's Goods, and this be set forth in the Declaration, it will maintain an Action at Common Law. Doderidge Justice said, That to say generally that one called him Bastard, is not ground of Action, if he doth not show some special Loss thereby, as when a Woman brings her Action, and says that she was in Treaty of Marriage, and that the Defendant called her Whore, this will not maintain an Action unless she say withal, that by reason of these words she lost her preferment; but Chamberlain Justice said, to call a Woman Whore is at this day a sufficient cause of Action for her, for that it is punishable by the Statute; he also further said, that if a Man Libel in the Ecclesiastical Court, that he hath Lands by descent, and that J. S. called him Bastard, they may not proceed there; or if they do, a Prohibition lies, He further said, that for calling a Man Bastard generally, without special Loss alleged, Action shall be maintained, and Cited a Case in 6 Eliz. Dyer. Where a Man recovered red great damages, 
Mich. 20. Jac. B. R. Elborough versus Allen. Roll. Rep.  for that the Defendant had said that his Father was a Bastard; And cited also one Nelson and Stokes Case in 5 Jac. where the Plaintiff did not allege any special cause of Action, and yet recovered:  
(7.) By the Civil Law such as were born in the beginning of the eleventh Month next after the decease of their mother's Husband were to be accounted legitimate, but such as were born in the end thereof, were to be accounted Bastards Auth. Col. 4. yet the Gloss there relates a matter of Fact contrary to this Law, and gives us an instance of a Widow in Paris, who was delivered of a Child the fourteenth Month after her husband's death, yet the good repute of this woman's continency prevailed so much against the Letter of the Law, that the Court judged the causes of childbirth to be sometimes extraordinary, the Woman to be chaste, and the Child Legitimate. Hoc tamen in exemplum trahi facile non oportet, as the Gloss there concludes.  
(8.) By the Common Law, if a Child be born but an hour after the solemnisation of Marriage, it shall be the Husbands, though it were begotten by another Man, who was not the mother's Husband, and may be the Heir of him who Married the Mother but a Day before the Birth of such Child 
u Term of Law. Verb. Bastardy.  for in that Case he is not reputed a Bastard, who cannot inherit Land as Heir to his Father, nor can any person inherit Land as Heir to him, but one who is Heir of his Body 
x Littl. Sect. 401. Fitz. B. 20. . Otherwise it is in case the Child were begotten by him who after the Birth of the Child doth Marry his Mother; For in that Case notwithstanding such Marriage subsequent to the Birth, the Child is reputed a Bastard in the judgement of the Common Law, as being born out of Wedlock, though according to the Ecclesiastical Law the Child in that case is reputed as Legitimate 
y St. 20. H. 3. 9 and 1 H. 6. 3. Co. on Lit. 244. . But if one mary a Woman, and die before Night, without ever bedding her, and she after happen to have a Child, within possibility of conception in respect of time computable from such Marriage, 
Quia subsequens matrimonium toltir culpam praecedentem.  it seems it shall be accounted his Child, and Legitimate 
z Vid. Engl. Lawyer. 117. .  
(9) If a Child be born within the tenth Month (computing thirty days to the Month) next after a man's death, it shall be reputed his Child as a Mulier; but the most natural time is nine Months and ten days (computing twenty eight days to the Month) which is forty Weeks; or any day in the tenth Month may be natural enough 
a Co. sup. Litt. 123. Arsop's Case. M. 17. Jac. B. R. . Also the Children begotten under a second Marriage after a Lawful divorce from a former, are Legitimate, and not Bastards 
b Co. 4. 29. . And the Child wherewith the Mother is visibly big when she taketh a second Husband, shall be reputed the Child of the former Husband, though born after Marriage with the second. Otherwise, if at her second Marriage she were so priully with Child as that it could not be discerned; understand it with this limitation, if by possibility of nature it may be so 
c 21 Ed. 3 39 . And if a Widow take another Husband within ten days next after the death of her former, and be delivered of a Child eleven days before or after forty Weeks from the death of the said former Husband, it shall be reputed the Child not of the former, but of the later Husband 
d 18 Ed. 1. Com. Bedf. Case. R. 13. B. R. . And in one Thecker and Duncombes Case it was adjudged, that a Woman may have a Child in thirty eight Weeks, and that by cold and hard usage, she may go with Child above forty Weeks; which was mentioned by the Court in the Case of one Owen against Jevon in an Action of the Case for saying, This is the Whore that my Man C. begat a Bastard on; and upon a Verdict for the Plaintiff it was moved in arrest of Judgement, that the words are not Actionable, because there is no special loss or damage alleged by the Plaintiff, and that in one lightfeet Case against Pigot it had been ruled that an Action lies not for saying a Woman had a Bastard: but it being argued on the other side, that the words are Actionable, because if they were true, the Party of whom they are spoken is punishable by the Statute of 7 Jac. with corporal punishment, Judgement was given for the Plaintiff, Nisi. 
e Trin. & Pasch. 1651. rot. 211. B. R. Owen vers. Jevon still. Rep. .  
(10.) The punishment of a Woman that hath a Bastard, that may be chargeable to the Parish, is the House of Correction for one year by the Statute 
f 77 Jac. cap. 4. .  
(11.) Although in the judgement of the Common Law a Bastard be reputed quasi nullius Filius 
g Littl. 41. b. , insomuch that, if being seized of Lands in his own right, he die without Issue of his Body, they may Escheat; yet even by that Law the Bastard in respect of his Mother is said to be a Son 
h Vid. 11. H. 4. 75. . But in respect of the the Father he is said to be nullius Filius, and therefore in the Case of Ralph Haward and the Lady Anne Powes his Wife in a Writ of Partition, it was held, that if the Mother dispose of all her Lands holden in Knights Servive, to her Bastard-daughter by conveyance in her life-time, that the same is out of the Statute of 32 H. 8. because she is but a mere Stranger to the Father, because nullius Filia; and the said Statute speaks of Lawful generation. And in the 39 Ed. 3. 42. in a Praecipe, where a Bastard was named Filius J. S. the Writ for that reason did abate 
i Vid. 13. Eliz. Dyer. 296. and 14 Eliz. Dyer. 313. Hugh. Abridg. verb. Bastard. . For the same reason also it is, that in a conveyance by a Father to his Bastard-son, natural affection is not a sufficient consideration; for that he is a Stranger in Law, although he be a Son in Nature 
k Mich. 23. Eliz. Dyer. 374. Wersel● Case . And yet it seems if a Grant be made to a Bastard by the surname of him who is supposed to beget him, it is good, if he be known by such Name, and yet in truth he is nullius filius. And if Husband and Wife divorced causa Praecontractus, the Issue hath lost his surname, for Cognomen Majorum est ex sanguine tractum; and the Issue now is Bastard and nullius filius: yet because he had once a Lawful surname, it is a good ground of reputation, to make him a reputed Son, which is a good Name of purchase 
l Co. 6. par. 65. in Sr. moil Finch's Case. . And it hath been resolved that a Child begotten by a second Husband (living the former) of a Woman divorced from the former causa Praecontractus, is legitimate and no Bastard 
m Mich. 28. El. Coke par. 4. 29. Banting and Lepingwells Case. ; But in another case, that a Child begotten after Marriage solemnised infra annos nubiles, and for that cause after divorced, is illegitimate and a Bastard 
n Co. 7. par. 42, 43. ●enns Case. .  
(12. A. takes B. to Wife and dies. B. after forty Weeks and ten Days is delivered of a Daughter. The question is, whether the Daughter shall be Heir to her Father, or a Bastard? The Affirmative prevails, and such a Child may be lawful Daughter and Heir to her Father; for a Post-natus, that is born after the forty Weeks, may as well be an Heir as an antenatus that is born at the end of seven Months; And a Child may be legitimate, although it be born the last day of the tenth Month after the conception thereof, computing the Months per menses solares & non lunares; according to the report given upon Oath by the learned Physicians in Alsop's Case 
o Mich. 17. Jac. B. R. Alsop and Bowtrels' Case Cr. 2. par. 321. Godb. 281. the same case. , If a Man hath Issue born by his Wife forty Weeks and eight days after his death, as if he die the three and twentieth of March, and the Issue is born the ninth of January next following, that Issue shall be held Legitimate, for it may be Legitimate by nature, and it seems the Common Law doth not limit any certain time for Legitimate Infants to be born: ᵖ upon evidence at the bar which concerned the Heir of one Andrews, 
Mich. Jac. B. R.  it was resolved by the Court, that Dr. Paddey and Dr. Momford, Physicians, should (being first sworn) in that case inform the Court upon their Oaths, whether according to Nature such Issue may be Legitimate, and they said that the exact time of the birth of an Infant is 280. days from the conception, viz. nine Months and ten Days after conception, accounting it by the Solar months, viz. 30. days to each month; but it is Natural also if he be born any time of 10 Months, viz. in 40 Weeks, for by such account 10 Months and 40 Weeks, or all one, but by accident an Infant may be born after the 40 Weeks, or before: Si partus nascatur post mortem Patru (qui dicitur Posthumus) per tantum tempus, quod non sit verisimile quod possit esse defuncti filius & hoc probato talis dici poterit Bastardus. 
Bract. lib. 5. f. 417. b.   
(13.) It is agreed on all hands that Bawardy is an Ecclesiastica Cause, and of Ecclesiastical Cognizance, and therefore if Bastardy be pleaded in disability of a plaintiff, the sa●● 〈◊〉 be tried by the Certificate of the Bishop, whether it be in Real Action relating to Inheritance, or Personal relating to 〈◊〉 otherwise where Action on the Case will lie: But if it be pleaded, that the Plaintiff was born at such a place before the Marriage solemnised, and so he is a Bastard: This the Common Law calls a Special Bastardy, and shall be tried by Jury at the Common Law, where the Birth is alleged; 
r Vid. Co. 8. par. Case of the abbot of Strata Marcelia.  So in the Duke of Suffolk's Case of Partition, where Special Bastardy was pleaded, and Issue thereupon taken, the Trial was awarded to be by a Jury of London. 
s Vid. 7. E. 6. Dyer. 79.  And where in an Action, upon the Case brought for calling one Bastard, the Defendant justified that he was a Bastard; it was awarded, that it should be tried by the country, and not by the Ordinary. 
t Trin. 14. Jac Hob. Rep.  Which seems something Paradoxical, that if Bastardy be pleaded in Disability of a Plaintiff, than it shall be tried by the Bishop's Certificate; but if it be pleaded, that the Plaintiff was born in such a place before the Marriage, then by a Jury: The former whereof is said to be a general Bastardy; the other a special Bastardy; whereas in truth they both seem to differ only in this, that the former seems to be a general relating to the Plaintiffs condition in respect of his Disability, the other seems to be a special relating to the circumstances of Place and Time of his Nativity, but both referring to his Bastardy.  
(14.) If a man, that is ordered by two Justices of the Peace to keep a Bastard-Child (he being according to the said Order the reputed Father) shall appeal from the said Order to the next Quarter Sessions according to the Stat. of 18. Eliz. and being there discharged, and the said Order repealed, shall yet afterwards at another Quarter-Sessions of the Peace upon re-examination of the matter be ordered according to the first Order; in that case it hath been held by the Court, that the second Sessions had no power to alter the Discharge made by the former Sessions. ᵛ And in another Case it hath been resolved, 
Trin. 9 Car. B. R. 248.  that before the Statute of 3. Car. c. 4. the Justices at the Sessions had no Authority to intermeddle in the Case of Bastardy, 
Cro. 1. par pigeons Case. ibid. 255. acc.  till the two next Justices according to the Stat. of 18. Eliz. had made an order therein; As also that by the Stat. 3. Car. the Justices of their several Limits are to make an Order in Case of Bastardy.  
(15. 
Pasch. 19 Car. B. R. Slaters Case. Cro. 1. par. 337. ) C. commenced an Action in the Spiritual Court against W. for saying that he had a Bastard. W. the Defendant alleged in the said Court, that the Plaintiff was adjudged the reputed Father of a Bastard by two Justices of the Peace according to the Statute, whereupon he spoke the words. The Spiritual Court accepted of his Confession, but would not allow of his Justification; whereupon he prayed a prohibition, and it was granted 
y Pasch. 17. Jac. B. R. Webb and C●oke Case. Cro. 2. par. 5, 5. and 625. . It is not denied, but that if the Spiritual Court try a thing that is of Temporal Cognizance, a Prohibition may lie, although all the Cause were originally Spiritual, as was resolved in Kenns Case 
z Cook. 7. par. 44. acc. Kenns Case. , in which Case it was likewise resolved, that where the Cause is Spiritual, there the Spiritual Court hath Jurisdiction; and in the Case between Banting and Lepingwell it was resolved, that the Judges of the Common Law ought (that is the word in the Report) to give Faith & Credit to the proceed of the Spiritual Court, albeit it be against the Reason of their Law 
a Mich. 28. Eliz. Cook. 4. par. 29. Banting and Lepingwith Case. Hugh. Abr. ver●. Bastard. Cas. 6.   
(16.) If a man having a wife, take another wife, and hath Issue by her, living the former wife, such Issue is a Bastard 
b 18. H. 6. 31. 18. E. 4. 30. b. Co. 7. Kenn. 44. , for the second Marriage is void 
c 38. Ass. 24. Adjudge. . If a man marry one within the Degrees prohibited, the Issue between them is not (by the Common Law) a Bastard, until there be a Divorce, for by that Law the Marriage is not till then void 
d 18. H. 6. 34. b. . (So it is although the Brother Marry the Sister) 
e 18. H. 6. 32. 39 E. 3. 31. b.  If a Man hath Issue by A. and after Marries her, yet the Issue is a Bastard at the Common Law 
f 47. E. 3. i 14 b. 11. H. 4. 84. 18. E. 4. 30. 39 E. 3. 31. b. 38. Ass. 24. , An idiot may consent to Marriage (by the Common Law) though he were an idiot from his birth, and his Issue by that Law is Legitimate 
g Trin. 3. Jac. B. R. inter Stile & West.  If the Husband be castrated, so that it is apparent that he cannot by any possibility beget any Issue, and his Wife have Issue divers years after, it shall be a Bastard, although it be begotten under Marriage, for that it is apparent that it could not be Legitimate 
h Hill. 14. Jac. in Camera Stellata inter Done & Egerton Plaintiffs, and two Hintons and Starkey Defendants so held by the Chancellor, and Montacule but Hobart e contra. .  
(17.) By the Law of the Land a Man cannot be a Bastard who is born after the Espousals, unless there be some special matter in the case 
i 40. E. 3. 16. b. 21. E. 3. 89. 39 E. 3. 31. 31. Ass. pl. 10. 2. E. 3. 29. per Herle and Yond. . If a Woman be big with Child by A. and after A. Marry her, and the Issue is born within the Espousals; in this Case by the Common Law the Issue is a Mulier, and not a Bastard 
k 14. E. 3. 12. b. 45 E. 3. 28. , So if a Woman be big with Child by one Man, and afterwards another Marries her, and after the Issue is born, such Issue is a Mulier, for that he is born under Espousals, and cannot be held the Issue of him by whom she was with Child, because that cannot be certainly known 
l 1 H. 6. 3 contra. 44. Ed. 3. 12. b. 45. E. 3. 28. cont. 18. H. 6. 31. b. ; and so it is although the Issue were born within three days after Marriage 
m 18. E. 4. 3 .  
(18.) If a Woman Covert hath Issue in Avoutrie, yet if the Husband be able to get a Child, and be infra quatuor maria, the Issue is no Bastard 
n Hill. 14. Jac. Cam. Stellat. ubi supra  If a Woman Elope and live in Avoutrie with another Man, during which Issue is born in Avoutrie, yet it is a Mulier by the Common Law 
o 1 H. 6. 3. 43 E 3. 18. b. 20. 81. E. 4. 30. Hill. 18. Jam ibid. Cam. Stellat.  But then the Husband must be infra quatuor maria, so as that by intendment he might come to his Wife, otherwise the Issue is a Bastard 
p 40. E. 3. 20. Ass. 8. . But if a Woman hath Issue, her Husband being beyond sea for 7 years together before the Issue was born, such Issue is a Bastard at the Common Law 
q 18. H. 6. 17. . If a Feme Covert hath Issue, her Husband being beyond Sea for 6 years before the Issue is born, it is a Bastard at the Common Law 
r 18. H. 6. 34. . If a Woman hath Issue, her Husband being within 14 years of age the Issue is a Bastard at the common Law. 
s 1. H. 6. 3. b.  quaere.  
(19) If A. hath Issue by B. and after they intermarry, yet the Issue is a Bastard by the Common Law; 
n 47. E. 3. 14. b. 11. H. 4. 84.  but it is a Mulier by the Civil Law 
o 11. H. 4. 84. Bracton. l. 5 f. 4 6, 617. . If the Parents be Divorced causa Consanguinitatis, they being ignorant thereof at their Marriage, the Issues they had before, are Bastards at the Common Law, and Muliers by the Civil Law 
p 18. E. 4. 24. b. . If a Man hath Issue by a Woman, and after marry the same Woman, the Issue by the Common Law is Bastard, and Mulier by the Ecclesiastical Law 
q 18. E. 4. 30. : Likewise if a man espouse a Woman big with Child by another Man, and within three days after she is delivered of Child, by the Common Law this is a Mulier, and by the Ecclesiastical Law a Bastard 
r ibid. 1. H. 6. 3. . If a Woman Elope and hath Issue in Adultery, such Issue is a Mulier at the Common Law, and a Bastard by the Ecclesiastical Law 
s 18. E. 4. 30. 43. E. 3. 19 b. 20. ; yet if the Woman continue in Adultery, and hath Issue, such Issue are Bastards even by the Common Law 
t 40. E. 3. 16. . But by the Law of the Land a man may not be reputed a Bastard who is born after Espousals, unless there be some special matter in the Case as aforesaid 
u ibid. . But if a man who hath a wife, doth during her life take another wife, and hath Issue by her, such Issue are Bastards by both the Laws, for the second Marriage is void 
x 18. E. 4. 30. b. Co. 7. Kenn 44. 18. H. 6. 31. .  
(20.) A Divorce causa Praecontractus doth bastardise the Issue, 
y 47. E. 3. pl. 78. 18. H. 6. 34.  so also doth a Divorce causa Consaguinitatis 
z 47. E. 3. 78. cont. 29. E. 1. Bastardy. 21. cur.  likewise if the Divorce be Causa Affinitatis, it doth bastardise the Issue; 
a ib. 47. E. 3.  and the Law is the same, in case the Divorce be causa Frigiditatis. 
b ib. 47. E 3. 78.  A Man hath Issue a Bastard, and after marries the same Woman, and hath Issue by her divers Sons; and then deviseth all his Goods to his Children. Q. whether the Bastard shall take by the devise? But if the Mother of the Bastard make such a devise, it is clear the Bastard shall take because he is known to be Child of the Mother 
c More's Rep. .  
(21. B. contracted himself to A. afterwards A. was Married to F. and cohabited with him, whereupon B. sued A. in the Court of Audience, and proved the contract, and Sentence was there pronounced, that she should Marry the said B. and cohabit with him, which she did, and they had Issue C. B. and the Father died: It was argued by the Civilians, that the Marriage betwixt B. and A. was void, and that C. B. was a Bastard. But it was resolved by the Justices. that C. the Issue of B. was legitimate and no Bastard 
d Mich. 26. and 27. Eliz. banting Case. More's Rep. .  
(22.) The Case was wherein a Man was divorced causa Fridigitatis, and afterwards took another Wife and had Issue; it was argued by the Civilians, and also by the Justices, whether the Issue were Bastard or not, it was adjudged that the Issue by the second Wife was not a Bastard; For that by the Divorce the Marriage was dissolved à vinculo Matrimonii, and each of them might Marry again: But admit that the second Marriage was voidable, yet it good till it be dissolved, and so by consequence the Issue born during the Coverture is a lawful Issue. 
b Mich. 28. Eliz. in Cor. Warder. Morris and Webber● Case. Moore's Rep. Mich. 9 Jac. En le Court de Castle-Chamber en ●●●land Danis Rep.   
(23.) Upon an information in the Castle-chamber in Ireland against the Bishop of K. and C. B. and others, that by Practice and Combination, and by undue course of proceed they endeavoured to prove the said C. B. (who was ever before reputed a Bastard) to be the legitimate or lawful Son and Heir of G. B. Esq to the disherison and defamation of E. B. who was the sole Daughter and Heir of the said G. B. And upon Oier of this cause the Case appeared to be this, viz. About twenty six years before the exhibiting of this Bill, the said G. B. had Issue the said C. B. on the Body of one J. D. who during the life of G. B. was not reputed his Wife, but his Concubine: and the said C. B. for all the time aforesaid, was only accounted the natural Son of G. B. but not for legitimate. Afterwards, viz. sixteen years after the birth of C. B. (his Mother being then living) G. B. took to Wife a Lady of good Estate and Reputation, with the assent of her Friends, by whom he had Issue the said E. B. and died. After the death of the said G. B. the said C. B. his reputed Son (nor his Mother who was yet living) said nothing by the space of nine years, but at last they practised and combined with the said Bishop of K. being of their Kin, and with many others, to prove the legitimation of the said C. B. by an irregular and undue course, to the intent to bastardise and disinherit the said E. B. according to which practice and combination, the Bishop without any Suit commenced or moved in any of the King's Temporal Courts, or any Writ directed to him, to certify Bastardy or Legitimation in that Case, and (which is more) without any Libel exhibited in his Ecclesiastical Court touching that matter, of his own will and pleasure, privately, and not convocatis convocandis, nine years after the death of the said G. B. took the depositions of many Witnesses to prove that the said G. B. twenty nine years before had lawfully Married and took to Wife the said J. D. Mother of the said C. B. and that the said C. B. was the legitimate and lawful Son and Heir of the said G. B. And these depositions so taken, the said Bishop caused to be engrossed and reduced into the form of a solemn Act; and having put his Signature and Seal to that Instrument, delivered the same to C. B. who published it, and under colour of that Instrument or Act declared himself to be the Son and lawful Heir of the said G. B. etc. And for this practice and misdemeanour the said Bishop of K. and others were censured; and thereupon these points were resolved (1.) That although all Matrimonial causes have of a long time been determinable in the Ecclesiastical Courts, and are now properly within the jurisdiction and cognizance of the Clergy, yet ab initio non fuit sic: For causes of Matrimony as well as cause Testamentary were heretofore civil Causes and appertaining to the civil Magistrate, as is well known to all Civilians, until the Christian Emperors and Kings, as an honour to the Prelates of the Clergy, did grant and allow unto them the cognizance and jurisdiction of these Cases. And therefore the King of England, who is, and of right ever was the Fountain of all Justice and Jurisdiction in all Causes, as well Ecclesiastical as Civil, within his own Dominions, although that he allow the Prelates of the Church to exercise their several Jurisdictions in those Causes which properly appertain to their cognizance, yet by the Rules of the Common Law, he hath a superintendency over their proceed, with power of direction how they shall proceed, and of restraint and correction, if they do not proceed duly in some cases: as is evident by the Writs of several natures directed to Bishops, by which the King commands them to certify Bastardy, 
Le course del Trial de Legitimation and Bastardy.  Excommunication, Profession, Accouplement en Loyal Matrimony, De admit. Clericis, de Cautione admittenda, etc. as also by the Writs of Prohibition, Consultation, and Attachment upon a Prohibition. (2.) It was resolved, that the question of Bastardy or Legitimacy ought to be first moved in the King's Temporal Court, and thereon Issue ought to be joined there; and than it ought to be transmitted by the Kings Writ to the Ecclesiastical Court, to be examined and tried there: and thereupon the Bishop shall make his Certificate to the King's Court; to which Certificate being made in due form of Law such credit is given, that the whole World shall be bound and stopped thereby. But on the other side, if any Suit to prove Bastardy or Legitimacy be first commenced in the Ecclesiastical Court, before any Question of that matter hath been moved in he Kings Temporal Court, in that Case Prohibition lies to restrain such Suit. To this purpose was Corbet's Case cited, 22 Ed. 4. Fitz. Consultation 6. Sir Robert Corbet had Issue two Sons, Robert and Roger, Robert the eldest Son, being within the age of fourteen years, took to Wife Matild, with whom he cohabited till he came of full Age, and they publicly known and reputed for Husband and Wife; yet afterwards Robert the eldest Son doth dismiss the said Matild, and she living, doth Marry one lettuce, and having Issue a Son by the said lettuce, dies: after his death lettuce doth publish and declare openly, that she is the lawful Wife of Robert, and that his Son was a Mulier and legitimate. Whereupon Roger the younger Son of Sir Robert Corbet doth commence a Suit in the Ecclesiastical Court to reverse the Marriage between lettuce and Robert, and to put lettuce to silence, etc. wherefore lettuce doth purchase a prohibition; Whereupon Roger sets forth the whole matter, and prays a consultation, which was denied him, and for this reason chief, viz. for that the Suit in the Ecclesiastical Court was to bastardise the Issue between lettuce and Robert, and to prove Roger to be Heir to Robert; and the Original Action of Bastardy shall not be first moved in the Ecclesiastical Court, but in the Temporal Court, etc. And to make this point yet the more clear, two Cases put by Bracton. lib. 5. tit. de exceptionib. c. 6. were remembered (1). B. having Issue of the Body of a Feme-Inheretrix born before Marriage, under colour whereof he claimed to be Tenant by the courtesy, but being for that cause barred in an Assize brought by him against A. he obtained the Pope's Bull, and by authority thereof commenced his Suit in the Ecclesiastical Court, to prove his Issue legitimate, quod facere non debuit, as Bracton there saith; and therefore prohibition was granted to stay the Suit, showing the whole matter, Et quod praedictus B. ad deceptionem Curiae nostrae, & ad infirmandum judicium in curia nostra factum, trahit-ipsum A. in placitum coram vobis in Curia Christianitatis, authoritate Literarum domini Papae, ad praedictum puerum legitimandum, etc. Et cum non possint Judices aliqui de legitimatione cognoscere, 
De Legiti●●tate.  nisi fuerit loquela prius in curia nostra incepta per breve, & ibi Bastardia objecta, & postea ad Curiam Christianitatis transmissa, vobis prohibemus, quod in placito illo ulterius non procedatis, etc. And in the same Chapter Bracton hath the form of another Prohibition, which makes the difference before put more evident, Rex talibus judicibus, etc. Ostensum est nobis ex parte A. etc. quod in causa successionis, & haereditatis petitione, debet prius moveri placitum in curia nostra, & cum ibi objecta fuit Bastardia, tunc deinde transmitti debet recordum loquelae & cognitio Bastardia ad curiam Christianitatis, ut ibi ad mandatum nostrum de legitimitate inquiratur: quod quidem in hac parte non est observatum. Et cum hoc sit manifeste contra Consuetudinem Regni nostri, etc. vobis prohibemus, etc. whereby it is very evident, that if the Ecclesiastical Court proceed to the examination of Bastardy or Legitimation without direction of the Temporal Court, it is to be restrained by a Prohibition. (3.) As the Ecclesiastical Judge may not inquire of Bastardy or Legitimation without special direction or command of the King: so when he hath received the King's Writ to make such Inquisition, he ought not to surcease for any Appeal or Inhibition, but aught to proceed until he hath certified it into the King's Court; and this also appears by Bracton in the forecited place, c. 14. Cum autem Judex Ecclesiasticus Inquisitionem fecerit, non erit ab eo appellandum, nec à petente nec à tenente: à petente non, quia talem Jurisdictionem & talem judicem elegit; à tenente non, qui sic posset causam in infinitum protrahere de judice in judicem usque ad Papam, & sic posset Papa de Laico feodo indirecte cognoscere. See also to this purpose 39 E. 3. 20. a. in a Writ of Dower, where Ne unques occouple en loyal Matrimony was pleaded, and Issue thereupon joined, the Writ issued to the Bishop to certify, who certified that he could do nothing by reason of an Inhibition which came to him out of the Arches. This return was held insufficient, for it was there said, that he ought not to surcease from doing the King's command by reason of any Inhibition (4.) Lastly, it was said, that the very cause and reason why the Ecclesiastical Judge may not inquire of Legitimation or Bastardy, before that he hath received direction, or a mandate out of the King's Temporal Court, doth consist in this, that the Ecclesiastical Court never hath Jurisdiction or power to intermeddle with Temporal Inheritance, directly or indirectly; It being observed that Christ himself refused to meddle with a Cause of that nature, when upon request made to him, Luke 12. Magister, dic fratri meo, ut dividat mecum haereditatem, he answered, Quis me constituit judicem aut divisorem super vos? And therefore in the time of King H. 3. when the usurped Jurisdiction of the Pope was elevated much higher than ever before or since in the Dominions of the King of England, Pope Alex. the third, having granted a Commission to the Bishops of Winchester and Exon to inquire de Legitima nativitate of one Agatha, the Mother of one Robert de Ardenna, and if she were found legitimate, then to restore to the said Robert the possession of certain Lands whereof he was dispossessed, being informed that the King of England was greatly offended at the said commission, he revoked and countermanded it in the point of the restitution of possession, knowing and confessing that the establishment of Possessions belonged to the King, and not to the Church. Which Case is reported in the Canon Law, Decretal. Antiq. Collect. 1. lib. 4. tit. Qui filii sunt legitimi. cap. 4. and cap. 7. where in the 4 th' Chapt. the Commission, and in the seventh Chapt. the revocation or countermand appears in express terms.   

CHAP. XXXVI.  
Of Divorce; as also of Alimony.  

1. What Divorce is, the causes thereof; the difference between the Civil and Canon Law touching the proof of impotency, frigidity, or disability; and what manner of proof the Law requires thereof.  
2. What time of absence in the Husband may cause a Divorce.  
3. Whether Divorce by reason of Adultery dissolves the Marriage à vinculo? or whether the innocent party may remarry altera existente?  
4. What the Canon in Concilio Arelatense provides in that Case.  
5. The opinion of some eminent Common Lawyers in this point.  
6. The different Opinions of Divines and Lawyers, and of each among themselves touching this matter.  
7. The Opinion in summa Hostiens. as also of Suarez, touching the legality of second Marriage after Divorce.  
8. The Canon of the Council of Trent concerning Matrimony; also the Opinion of some of the Ancient Fathers, and a Decree of one of the Pope's touching second Marriage after a Divorce  
9 Decrees and Histories of great Antiquity relating to this Subject.  
10. What the Pontifical Law, what Justinian, what Baldus, and what Grotius says in this matter.  
11. Opinions in this point take their diversification much from the cause of the Divorce, as whether ex causa praecedenti vel subsequenti.  
12. Judgements at the Common Law, that a Divorce for Incontinency, is only à Thoro & mensa, non à vinculo.  
13. What the Law intends by Alimony, and what Elopement signifies; no Alimony due to her that Elopes'.  
14. In what Cases the Law will allow Alimony, or not.  
15. How the Civil Law provides in that Case of Alimony.  
16. The Ecclesiastical Court is the proper Court for Alimony.  
17. Whether the High Commission-Court had power of Alimony, or not?  
18. Prohibition denied to the Husband sued in the Ecclesiastical Court by the Wife for Alimony in causa saevitiae.  
19 Whether the Ecclesiastical Court may take Bond for Alimony, or Imprison for nonpayment thereof.   
(1.) A Divorce is a Sententence pronounced by an Ecclesiastical Judge, whereby a Man and Woman formerly Married to each other, are separated and parted 
a Co. par. 7. Kerah's Case. . The word Divortium or Repudium is often taken promiscuously, both for a Total and Perpetual Divorce, & à vinculo Matrimonii; as also for a Partial and Temporal Divorce, or Separation à Cohabitatione, vel à thoro & mensa. The causes of this Divorce, whereof some are precedent, others subsequent to the Marriage, are many in the Law; Thomas Aquinas reckons up no less than a dozen of them, and thinks he hath Poetically comprised them all in four Verses, viz.  
Error. Conditio. Votum. Cognitio. Crimen.  
Cultus Disparitas. Vis. Ordo. Ligamen. Honestas.  
Si sis Affinis. Si forte Coire nequibis;  
Haec Socianda vetant Connubia, Facta retractant.  

b Aquin. supplem. 3. par. q. 51, 52, 53. praesertim in 4. Dist. 34. q. 1. a. un. . But the Causes of Divorce in the Law as now commonly practicable, may be reduced to these few. (1.) The Levitical Degrees within which it is prohibited to Marry. (2.) Precontract; And so if a Man Marry one precontracted, and have Issue by her, it is the father's Child until there be a Divorce upon the precontract, and then it is Nullius Filius, a Bastard 
c Co. par. 6. 66. and Dyer. 105. . (3.) Impuberty or Minority; And so if two be Married infra annos nubiles, and after full age are Divorced for the same, the Woman may bring an Assize against the Man for Land given her in frankmarriage 
d Lib. Ass. 19 An. pla. 2.  which proves that the Divorce is by that Law from the very Bond of Matrimony (4.) Frigidity in the Man, or Impotency in the Woman, termed Arctitudo in the Law; but the word [Impotency] is promiscuously used in both Sexes, for it is said, that if after a Man be Divorced for Impotency, he take another Wife and have Children by her, these shall not be Bastards, because a Man may be habilis & inhabilis diversis temporibus 
e Co. par. 5. 93. and Dyer. fo. 178. . But in this Case the Civil Law hath made other provision, for that Law in causa Frigiditatis requires three years' Cohibitation for Trial of the Disability before it doth upon other legal evidence and proof conclude any Married persons either Frigid or Impotent; Indeed the Canon Law expects present proof, and in case of such Impotency or Frigidity, not Accidental but Natural and Incurable, concludes that the Matrimony was never a Matrimony. The evidence of which Disability depends on the Oaths of able Physicians, as also of aged and grave Matrons experienced in such affairs; nor is it to be alleged till after a Triennial experience of each other post Matrimonium Consummatum; and is a just cause of Divorce, for that it frustrates one of the chief ends of Marriage, viz. Procreation of Issue, if it be sufficiently proved by Inspection of the Body, Triennial Cohabitation and the Oaths aforesaid. Consil. Matrim. To. 2. Consil. 8. nu. 1. And in Cases doubtful whether it did precede the Marriage or not, the Law will presume it to antecede the Marriage, and consequently nulls it, in case it be Natural; otherwise, both as to the presumption and operation, in case it be only Accidental. Sanch. lib. 7. disp. 103. nu. 4. And where the Impotency doth sufficiently Constare to be Perpetual by the Oaths aforesaid upon Inspection, there the Triennial probation ceases. Vt cum Glossae. cap. Fraternitatis. De Frigidis & Maleficiis. & Panor. nu. 11. Pope Sixtus 5 th' in his Bull An. 1587. declared that Matrimonia cum spadonibus, vel eunychis prorsus eviratis, seu utroque testiculo carentibus, cum quibuslibet Mulierihus, seu defectum praedictum ignorantibus, seu scientibus, esse semperque fuisse irrita. Antonini ●●ana resolutiones morales. Tract. 4. Miscelan. resol. 75. p. 190.  
(2.) There are also other seeming causes of Divorce than what are forementtoned; for the Civil and Canon Law do allow of Divorce after a long absence, but are not agreed touching the Time of that Absence; for in one place it is after Two years' Absence, in another after Three years; in another after Four. Cod. lib. 5. tit. 1. l. 2. post biennium. tit. 27. post tres an. l. 27. post Quatuor an. others hold that the Civil Law requires Five years' Absence before there may be a Divorce on that account. In the Council of Lateran a Sentence was allowed by the whole Council, which was given by a Bishop, pronouncing a Divorce for a Woman, complaining that her Husband had been absent Ten years, giving also leave to the Woman to Marry again. In Concil. later. par. 50. cap. 23. But the truth is, no absence, be it for any time whatever, doth properly cause a Divorce in Law; Indeed Seven years' Absence without any tidings or intelligence of or from the Absent Party, will so far operate in Law towards what is equivalent to a Divorce, as to indemnify the Woman from the penalty of Polygamy, if in that case she Mary again. Also the Canon Law hath decreed, that if the Wife refuse to dwell with her Christian Husband, he may lawfully leave her. Causa 28. q. 1. c. 4. And some of the Imperial Laws allow Homicide, sacrilege, Theft, Man-stealing, etc. for causes of Divorce, Cod. lib. 5. tit. 17. l. 8. But the Canon Law decrees otherwise. In the time of Ed. 1. William de Chadworth was Divorced, because he carnally knew the Daughter of his Wife before he Married her Mother 
o Term. Pasch. 30. Ed. 1. coram rege. . The Stat. of 1 Jac. cap. 11. is the first Act of Parliament that was made against Polygamy. Polygamia est plurium simul virorum, uxorumve connubium, The difference between Bigamy, or Trigamy, etc. and Polygamy is, Quia Begamus seu Trigamus, 
Co. Inst. par. 3. cap 27.  etc. est, qui diversis temporibus, & successive duas, seu tres, etc. uxores habuit. Polygamus, qui duas vel plures simul duxit uxores. And if the Man be above the Age of fourteen (which is his Age of Consent) and the Woman above the Age of twelve (which is her Age of Consent) though they be within the Age of twenty one, yet they are within the danger of the Stat. of 1 Jac. cap. 11.— Co. Inst Par. 3. Cap. 27. vid. Instit. par. 1. Sect. 104.  
(3.) This matter of Divorce hath often ministered occasion for high debates and altercations touching second Marriages, As whether a Divorce by reason of Adultery in either of the Married Parties, doth so dissolve the Marriage à vinculo, as that it may be lawful for the Innocent Party to Marry again during the others life? By the 107 th' Canon, It is provided, that in all Sentences for Divorce security be given and Bonds taken for not Marrying during each others life 
a canon's Ecclesiastical. Edit. 1603. . By enjoining such security to be given, and such Bonds to be taken, This seems to be a Penal Canon, viz. pecuniarily Penal; whoever therefore breaks the Law incurs the penalty, and whoever suffers the penalty doth answer and satisfy the Law which before he had infringed; a penalty expressed or implied, provided for in, and annexed unto a Law that is in itself prohibitory, seems to create some qualification of that legal prohibition, Prohibitio vim suam exercere potest per poenam vel expressam vel arbitrariam: Et hoc genus Leges Imperfectas vocat Vlpianus, quae fieri quid vetant, sed factum non rescindunt, So Grotius. Grot. de jure Bel. & Pacis. lib. 2. cap. 5. Sect. 16. But to speak a little nigher to the point in hand, it is Grotius again in the same place, Si Lex humana conjugia inter certas personas contrahi prohibeat, non ideo sequitur irritum fore Matrimonium, si re ipsa contrabatur: sunt enim diversa prohibere, & irritum quid facere. The Laws whether Ecclesiastical or Temporal are not of any private interpretation; yet to speak herein only hypothetically, if this be interpretative as a penal Canon by virtue of the said Security and Bond, then apposite and observable is that which Grotius hath in another place, in Casu Legis Paenalis, his words are these, viz. Rex qui est Auctor Legis, & ubi Regni ipsius personam & auctoritatem sustinet, qua talis est, potest legem etiam totam tollere; quia Legis humanae natura est, ut à voluntate humana pendeat, non in Origine tantum sed & in duratione. Sicut autem totam Legem tollere potest, ita & vinculum ejus circa personam aut factum singular, manente de caetero lege. Dei ipsius exemplo. Qui (Lactantio teste) legem cum poneret, non utique ademit sibi omnem potestatem, sed habet ignoscendi licentiam. Imperatori, inquit Augustinus, Licet revocare sententiam, & Reum mortis absolvere & ipsi ignoscere: Causam explicat, Quia non est Subjectus Legibus, qui habet in potestate Leges far. Grot. ibid. de Paenis. cap. 20. Sect. 24. How far the power of Princes may extend itself in this matter, is not before us; But clear it is, that all such as acknowledge the Regal Supremacy, will withal confess, that his Majesty hath more right to dispense with Canons within his own Dominions ex plenitudine potestatis Regalis, than was here formerly exercised ex usurpatione potestatis Papalis. In all Laws that are both Prohibitory and Penal, as they are of the more force by reason of their Prohibitory quality, so they seem to abate of that force by reason of the annexed penalty; for he that suffers the penalty, satisfies the Law, though he transgress the Command. The Statute of primo Jacobi hath a Proviso or exception to second Marriages by persons legally Divorced; 
d St. 1 Jac. cap. 11. . no Caitons or Constitutions prevail or are executable, in repugnancy to the King's Prerogative, or to the Laws or Statutes of this Realm 
e St. 25. H. 8. c. 19 . That Statute of primo Jacobi prohibiting 2. Marriages during the Life of each other, doth not only not extend to persons legally Divorced, but as to such it is with an exception, limitation or proviso as aforesaid. Sir Ed. Coke taking notice hereof in porter's Case, reports that that Statute extends only to persons which are Divorced by Sentence in the Spiritual Court 
f porter's Case. Co. rep. ; And that distinction of Total and Partial Divorce, Or that vel à vinculo vel à Mensa & Thoro, will not it seems satisfy all judgements, some alleging that ubi lex non distinguit, nec nos distinguere debemus, applying that Rule ad Evangelium also; and thence will not be persuaded but that the innocent party in Causa Divortii ob Adulterium may Marry again, altera parte existente, because though they know it to be otherwise by Text Canonical, yet know not where to find it so by Text Scriptural; and specially because they find a Proviso in the said Statute of primo Jacobi, that the parties Divorced by sentence, if he take another Wife, or she take another Husband, shall not be within the danger of the Statute; And that this extends to every manner of Sentence of Divorce, and not to any particular cause of Divorce. Cajetan, though of the Roman Church, yet on the 19 th' of Matthew saith, Intelligo ex hac Domini Jesu Christi lege, licitum esse Christiano dimittere uxorem ob fornicationem carnalem ipsius uxoris, & posse aliam ducere: and soon after adds, Non solum miror, sed stupeo, quod Christo clare excipiente causam fornicationis, torrens Doctorum non admittat illam Mariti libertatem. This Question, Whether after Divorce for Fornication it be lawful to Mary again during the Lives of the parties Divorced, is at large handled by the learned Doctor Hammond in his Treatise of Divorces; where he says that Mat. 19 9 and Mark 10. 6. are two places of such perspicuity (one Cause of Divorce allowed the Christians, that great Breach of the Conjugal Vow, and whosoever Divorces and Marries again, save in that one Case punctually named, committeth Adultery) that as no Paraphrase can make them more Intelligible: So there is but one Question that can reasonably be started in them, viz. Whether he that puts away his Wife on this one authentic cause, be so perfectly freed from the Conjugal Vow and Bands, that he may Lawfully Marry some other Woman, and some other Man Marry that Divorced Adulterers Wife? In Mat. 19 9 The words are, That whosoever shall put away his Wife, save for fornication, and shall Marry another, committeth Adultery; and he that shall Marry her that is put away, committeth Adultery: Which words (says that learned Author in Sect. 22.) are favourable to the affirmative, that it is Lawful for him in that one excepted Case to Marry again. The nature of a Divorce among the Jews was the rescinding of the Conjugal Bands, and by one supposition common to Jews and Romans, viz. That they who were duly Divorced might Marry again: So of the Jewish Divorced Wife, Deut. 24. 2. 'tis expressly said, she may Marry another; and of the Man, this was his only End of putting away his Wife in that place, that he might Marry another: Accordingly the Form of Divorce in Misna, tit. Gittin, Behold, thou art free, or at liberty for any Man, and this is the Bill of Divorce between me and thee, so that it is free for thee to Marry to any Man thou wilt. Idem. Sect. 27. yet on the other side (says that learned Author) it may be argued, that although in the Mosaical Law, Divorce was the rescinding the Conjugal Bands, to which it was consequent, as long as the Jewish polity lasted, that they who were duly Divorced (as in the one Case of Fornication) might freely Marry again: yet in the acceptation of our Christian Courts, Divorce appears not to be any more than the solemn Judicial separation from Conjugal Society, as that it seems to be rather the freeing the Husband and Wife from the Obligation to mutual conjugal duties, than the utter rescinding and dissolving the Bands. For if it were so, than that Husband and Wife could never come together again without a new Wedlock, which was never heard of in the Church; that Adultery, the efficient cause of Divorce (though a breach of the Conjugal Vow) is yet no actual dissolution of the Conjugal Bands, among us Christians, seems probable (says Doctor Hammond) by these two evidences (1.) Because Adultery committed by the Husband, dissolves not Marriage, which yet it equally should, if that fault committed, and not the Sentence of Divorce rescinded the Conjugal Band, etc. In this a difference is observable between us and the Jews; for in case of Fornication, the Jew expected no Sentence of the Consistory, but the Man might put her away, give her from himself a Bill of Divorce, which was never allowed or practised among Christians. 2. Because if this were so, if Adultery in the Wife dissolved the bands, than the Husband, that after the Wife's Adultery continued to live with her Conjugally, must be concluded to commit Fornication with her, the validity of the bands being it (and nothing else) which makes Conjugal Society Lawful. Accordingly hath the Opinion of the Church been anciently, as in Can. Apost. 48. If any laic put away his Wife and Marry another, or mary a Woman which hath been put away by another, let him be Excommunicate. So likewise at the Council of Arles, An. 314. Can. 10. De his qui Conjuges suas in adulterio deprehendunt, & iidem sunt Adolescentes Fideles, & prohibentur nubere, placuit ut in quantum possit, concilium iis detur, nè viventibus uxoribus suis, licet Adulteris, alias accipiant. Likewise in the Milevitan Council, An. 402. at which St. Augustine was present, it is decreed, that secundum Evangelicam & Apostolicam Doctrinam, neque Dimissus ab uxore, neq. Dimissa à Marito, alteri conjungantur, sed ita maneant, aut sibimet reconcilientur. So also in the Codex Can. Eccl. African. Can. 102. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. That they that are Divorced from Husbands or Wives, should remain unmarried. And what hath thus been defined by these Canons, is evidently received into the Ecclesiastical constitutions of this Church, which therefore hath decreed, that when Divorces are pronounced, Monitio & prohibitio fiat, ut à partibus ab invicem segregatis caste vivatur, nec ad alias Nuptias alterutra vivente convoletur. Constit. Eccl. An. 1597. upon these Arguments pro & con, Doctor Hammond in the forecited place doth conceive, that the Resolution may be made by these three propositions: (1.) That by the force of Christ's words in all the Evangelists, he that Marries again after any kind of Divorce, but that one for Fornication, doth commit an unchristian sin. (2.) That by force of the Arguments first produced, for the interpreting Mark and Luke by Mat. 19 5. vid. Doctor Hammond of Divorces, fol. 452, 453. it may be probably concluded that in that one case of Divorce for Fornication, the Marriage of the Innocent party shall not be Adulterous. (3.) That although this be granted, yet the words of St. Mark and Luke, especially the words of St. Paul, 1 Cor. 7. 39 do give such prejudices against Marriages after Divorce indefinitely, that the ancient Canons of the Church, and the Constitutions of our English reformation, have thought fit not to permit such liberty in any kind, and therefore that this may be the better observed, the decree of separation shall not be pronounced, till they that demand it, shall give sufficient security that they will do nothing against the Admonition and Prohibition, for our Constitution adds, Denique quo illud firmius observetur, sententia separationis non antea pronunciabitur, quam qui eam postulaverint, Cautionem Fidejussoriam sufficientem interposuerint se contra monitionem & prohibitionem nihil commissuros, which if not observed by the Judge, he is punishable, and the Sentence of Divorce for such defect declared void. Constit. Eccl. an. 1597. Innocent the first, Bishop of Rome saith, Qui interveniente repudio, alii se Matrimonio copularunt, in utraque parte Adulteros esse manifestum est, etc. But the said Judicious Author conceives, that of this and the like Testimonies it may be observed, that most of them belong not to these Divorces, which are in case of Fornication, but (proportionably to Christ's words in St. Mark) to those which according to the Jewish or Imperial Laws, were allowed in other Cases, than what either Christ, or the Primogenial institution of Marriage had allowed of: And further saith, that it is evident and confessed by all Christians, that of These, that is, the Marriages (after such Divorces by the Jewish and Imperial Laws) are Adulterous, but not so of those other Marriages of the innocent parties after those other Divorces in that one Case of Adultery. Yea and some Canons have been made with this Temperament expressly (except in the case of Fornication) so in the second Canon of the Council of Vannes, eos qui relictis uxorihus suis, sicut in Evangelio dicitur, excepta causa Fornicationis, sine Adulterii probatione alias duxerint, statuimus, etc. They that have left their own Wives, as it is said in the Gospel, except for cause of Fornication, and without proof of Adultery shall have Married others, we judge them, etc. Notwithstanding which, the Law tells us of other Cases than that of Adultery or Fornication, wherein the Man after a Divorce may remarry during the Life of the Woman Divorced, as in the Case of Arctitude, which you may find in Summa Astensi, Lib. 8. De Divortio propter impotentiam. Tit. 37. fo. 233. Si Arctatio alligetur (subaudi quamcunque impotentiam Foeminae) statim potest Divortium Fieri hoc modo, viz. vocabuntur Matronae fide dignae, & in Nuptiali opere expertae,— Ar. F. de Ventr. inspect. l. 1. verb. igitur, etc. Et si Mulieres asserant eam non posse fieri Naturaliter Matrem, tunc statim potest Divortium fieri, et dabitur viro Licentia cum alia contrahendi. It will not be denied, but that in all Cases where the Marriage was ab initio Null, there it shall, after a legal Divorce, be free for either party convolare ad secundas Nuptias altera parte existente, which strictly and properly cannot be said to be a second Marriage, because precedent to it, there was duly and legally none; nor therefore can they be properly said to be Divorced, Separated, or put asunder, that never were the jure put together. Among the several kinds of these Null Marriages may be computed that which Panormitan speaks of in his Fourth Tract de Sacramentis. Resol. 201. Foemina (says he there) si commode non potest aptam se reddere viro, impedimentum censendum esse perpetuum, & Matrimonium declarandum Nullum; which holds true vice versa, and therefore it is likewise said, that Foemina per contractum Matrimonii jus suum tradit viro apto, non inepto, atque in non aptum nullum transfertur jus. The Canon Law is express in prohibiting these second Marriages after a Divorce, although Ex causa Fornicationis. So Tostatus, verb. Matrimonium, ubi voluit nullam esse Causam Repudii, nisi Fornicationem; Et istam non quidem simpliciter ad Dirimendum Matrimonium, sed ad tollendam Cohabitationem. ut patet, Extra. de Divort. c. Gaudemus. The Lawyers and Divines (says Adam Tannerus) are of different opinions in this point, Juristae Divortii voce utuntur pro Dissolutione Matrimonii etiam quoad vinculum, ut constat. ex toto tit. F. De Divortiis. Theologi tamen ea voce Divortii solam significant separationem inter conjuge●, aut quoad Cohabitationem, aut quoad Thorum. Adam. Tannerus, Tom. 4. Disput. 8. de Matrimonio. q. 5. Dub. 5. nu. 74. de Divortio.  
(4.) In concilio Arelatensi, which was held in An. 314. at the command of Constantine the Great, under Pope Silvester in the first Year of his Papacy, it was Canoned, Vt is cujus uxor adulteravit, aliam illa vivente non accipiat. Sir Hen. Spelman gives the words of this Canon thus, viz. De his qui Conjuges suas in Adulterio deprehendunt, & iidem sunt Adolescontes fiddles & prohibentur Nubere, placuit ut in quantum possit, Consilium iis detur, nè viventibus uxoribus suis, licet Adulteris, alias accipiant 
g Sir H. Spelm. council de Concil. Arelat. Can. 10.  If this Canon be not directly prohibitory, and against second Marriage after Divorce in Case of Adultery during the Life of the other Party, yet it provides that Counsel or Advice in the Case be given against it, and the Parties monished to the contrary.  
(5. Mr. attorney Noy in Dame powel's Case reports, that a Divorce causa Adulterii is but à mensa & thoro, & non a vinculo Matrimonii; and the reason he gives is this, viz. Because (says he) the offence is after the just and lawful Marriage 
h Dame powel's Case against Weeks. Noy Rep. ; if for this Opinion of his any Anticanonist should dream, that he died in the Catholic Faith of Matrimonial Sacraments, let him consult Sir Edward Coke in the Third part of his Institutes, where he doth not only allow of that Member of the foresaid distinction, but withal says, that in the Case of Divorce à Mensa & Thoro the second Marriage is void, living the former Wife or Husband 
i Co. Instit. 3. par. cap. 17. Polygamy. . Yet in Bury's Case he reports it to have been adjudged, that by a Divorce the Marriage is dissolved à vinculo Matrimonii; and also resolved, that admitting a second Marriage to be voidable, yet it is adjudged that the same doth remain in force until it be dissolved; and that the Issue born during such second Coverture is a lawful Issue to inherit the Land 
k Bury's Case. Co. 5. part 98. .  
6. Touching the kinds and effects of Divorce, whether Divorce à vinculo Matrimonii, or separation only à Mensa & Thori, with the causes thereof; the Divines and Lawyers are of different Opinions, and each of these divided among themselves; some conceive, that as there be Divorces Ex Causa praecedente, so there are some Ex Causa subsequent, as Causa Adulterii, and that Adultery dissolves the very Bond of Matrimony, which consisteth in their being one Flesh. And whereas it is written, That whosoever shall Marry her that is Divorced, committeth Adultery 
l Mat. 5. 32. , they will have it to be meant only of such as shall Marry her who is Divorced for any other cause or reason, than for Fornication; which they infer from the former part of Mat. 5. 32. that whosoever shall put away his Wife, saving for the cause of Fornication, causeth her to commit Adultery; so that for the cause of Fornication it is lawful to put her away, and whosoever shall Marry her that is (say they) Divorced for any other cause, committeth Adultery; whence they would infer, that a Remarriage after Divorce for the cause of Fornication is not forbidden; And as for that Divorce or Separation à Thoro & Mensa, they look on it as no current Coin, not having (as they pretend) Caesar's Image or Superscription thereon, but seem very positive in affirming that Pha●isaei interrogabant Christum de dimissione quoad vinculum, & non quoad Thorum & mensam. It is true indeed, by the Judicial Law a Woman Divorced from her Husband in causa Adulterii might be another man's Wife 
m Deut. 24. 1, 2. ; which is no contradiction to Mat. 5. 22. if the Divorce there mentioned be à vinculo. But that which such as are for Post-repudiary Marriages much insist on, 
Beza in Luke 16. 19  is that which the Reverend Mr. Beza hath on the like place, Qui hinc colligunt (says he) post Repudium Nullum esse secundo Matrimonio locum, altera parte existente, inepte colligunt; loquitur enim Christus de Repudiis apud Judaeos usitatis, inter quae numerari non potest Repudium ob Adulterium, 
Levit. 20. 10. and Deut. 22. 22.  cum Adulteros ex lege oportet Capitali poena plecti.  
(7). If ingressus in Religionem be (as some understand it) a kind of Mors Civilis, than it should seem it might be for that reason that in such case it was lawful for the other Party convolare ad secundas Nuptias, for by the 118 Canon of Egbert Archbishop of York An. 750. called Canon Affrica●ensis, in exceptionibus suis è Canonibus Patrum Concinnatis, it was Lawful so to do, the words of the Canon are, Si vir sive Mulier ex consensis Religionem ceperit, licet alterum accipere novum conjugium; But from hence no Argument can be drawn to prove the Lawfulness thereof in Causa Divortii. The Cardinal of Segutium in his summa Hostiensis seems to be of Opinion that it is Lawful in case of Divorce to Marry again, the words of that famous Canonist are, debet judex sententiam Divortii partibus tradere in Scripturam publicam redactam, ne Filiis susceptis ex secundo Matrimonio, probatione deficiente, valeat praejudicium generari 
n Sum. Host. lib. 3. de Divortiis. nu. 14. . But Cardinal Navarr seems to be more positive in the point, where he Affirms, that Matrimonium Contractum cum secunda post sententiam Divortii, valet, provided it be post Triennalem Cohabitationem, as the Canon Law requires, in causa Impotentiae. Navar. Concil. l. 4. concil. 1. de Frigidis. nu. 3. p. 414. But it seems strange that Sanchez a Jesuit, and one of the highest form, arguing this Question against the heretics, as they are pleased to call us, should so ingenuously confess, that ex ipsis Catholicis aliqui existimarunt, omnino dissolvi Matrimonium quoad vinculum eo propter Adulterium alterius Conjugis separato: atque ita licere aliud Matrimonium inire, priori Conjuge superstite. Sanch. de Matrim. Tom. 3. l. 10. de Divor. Disp. 2. nu. 1. & Navar. lib. 4. Council 1. nu. 3.  
(8.) This, utrum ob Adulterium alterius Conjugis dissolvatur Matrimonium quoad vinculum, ita ut integrum sit innocenti ad alias Nuptias transire, altera parte vivente? was a Question long since controverted by Bellarmin, and by Valentia. Bellarm. l. 1. de matrim. c. 15. Valent. lib. unic. de indissolubilitate matrim. cap. 3. And by them admitted as disputable with a Non obstante to the Council of Trent, whereby Matrimony is highly sacramentized, as appears by that which the said Tridental Council declares concerning it, viz. Matrimonium est Sacramentum, quod ex opere operato confert gratiam. secundum Communem & veram opinionem, quam pro infallibili Articulo Fidei tenendam esse, ait Concilium Trident. & declaravit Navar. lib. 4. Concil. 1. nu. 3. Yet the forementioned Sanchez doth cite Sixtus Senensis bringing in Origen Asserentem sui temporis Episcopos permisisse alias Nuptias uxoribus ob virorum Adulteria ab ipsis divertentibus. Sanch. ubi supra Sixt. Senens. lib. 6. Bibliothec. Of which judgement also was St. Ambrose (as he affirms:) also Tertullian, Erasmus, Cajetan and Catherinus. Tertul. lib. 4. contra Martion. Erasm. annot. ad 1. Cor. 7. Cather. l. 5. Annot. contra Cajetan. infin. Cajetan. in Mat. 19 in illud, quicunque dimiserit. This also, saith Sanchez, was the Judgement of the Greek Church, as Guido the Carmelite reports; and of this judgement are both the Lutherans and Calvinists; yea, it was the Judgement also of a Pope, Pope Zacharias the First, who expressly Decreed in these words, viz. Concubuisti cum sorore uxoris tuae, Neutram habeas; Et si illa quae uxor tua fuerit, Conscia sceleris non fuit, si se continere non vult, Nubat in Domino cui velit. Cap. Concubuisti. 32. quest. 7. And as to the Husband St. Ambrose is express in the Case, uxor à viro non descedat, nisi causa Fornicationis; quod si discesserit, aut maneat innupta aut reconcilietur. Ideo, non subdit de viro, quod de uxore praemisit, quia vero liceat ducere aliam. D. Ambros. ad 1 Cor. 7. & refertur. cap. uxor. 32. q. 7. So likewise Ex concilio apud Vermerias, it is express, that Maritus (uxore conciliante mortem ejus) possit ipsam uxorem dimittere, & si voluerit aliam ducere. refertur c. si qua Mulier. 31. q. 1.  
(9) In the first Year of Lotharius King of Kent, An. 683. In Concilio Herudfordiae It was Decreed, that Nullus Conjugem propriam, nisi (ut sanctum Evangelium docet) Fornicationis causa relinquat. Quod si quis quam propriam expulerit Conjugem Legitimo sibi Matrimonio Conjunctam, Si Christianus esse recte voluerit, nulli alteri copuletur: sed ita remaneat, aut propriae reconcilietur Conjugi 
y Spelm. Concil. de Concil. Herudford. art. 10. . In those days it seems he was reputed scarce a Christian, that being separated from his Wife presumed to Marry another. And above two hundred years before, in St. Patrick's Synod, viz. In Synodo Sancti Patricii, aliorumque Episcoporum in Hibernia Celebrata, circa An. Christi 450, vel 456. It was decreed, That the punishment of a Woman departing from her Husband, and joining herself to another Man, should be Excommunication 
z Idem. de Synod. Sancti Patricii Sect. 19 . In the time of H. 3. and in the Case of Simon de Montford, between him and his Wife, the Pope ratified his Marriage, after he had dispensed therewith contrary to the Laws and Canons 
a Mat. Paris Hist. Angl. p. 455. . King John being Divorced from the D. of Glocesters' Daughter, viz. the third of June 1199. soon after, viz. before the 8 th' of October than next following, was Remarried to Isabel, sole Daughter and Heir to the E. of Engolesme. Likewise Alice Daughter of the E. of Savoy, and King John's first Wife, was Married to him after she had been the Divorced Wife of Henry de lion, D. of Saxony. Speed Chron. in vita Johan. R. Angl. Also King Henry 8 th'. after he had been Divorced from Q. Katherine, his brother's Relict, and after above twenty years' cohabitation with her, Married again (during her Life) the Lady Anne Bullen, by whom he had Q. Elizabeth. These are precedents of Fact, not of Law; For,  
(10.) Alceat asserts, that hodie Jure Pontificio permittitur solum separatio ex certis causis, nec interim licet aliam ducere, etiamsi separationi uxor causam dederit: yet withal he says in the same place, Aliter tamen aliqui ex Antiquis Patribus olim observare, inter quos Ambrose, qui ex justa causa Marito jus divertendi atque aliam ducendi, etc. Non enim hos homo separat, sed Deus, quando ita Optimis Antistitibus propter malos Foeminae mores videtur. Alceat. de verb. sig. l. 101. inter stuprum. Sect. Divortium. In which place the same Author further adds, It is no wonder that the Emperor Justinian himself was somewhat sparing in this point, when the Pontifical Canon passim tempestate sua observatus fuisset: ut forte credendum sit, Licere Pontifici eos Canones tollere, & jus Romanum observari, si velit. Grotius says, Cum ea alteri Nupta est, Matrimonium haud dubie irritum lege quidem Naturali, nisi vir prior eam dimiserit. Grot. de jur. Bell. lib. 2. cap. 5. §. 11. And in the Matrimonial Councils it is express, That Mulier à primo Matrimonio per sententiam separata, cum eo, cum quo secundo nupsit cum Authoritate Ecclesiae, manere debet. Concil. Matrim. Council Baldi 3. nu. 3. Where the Judgement of the famous Baldus is, That Contrahentes Matrimonium cum Authoritate Ecclesiae, & vigore sententiae Divortii, praesumuntur esse in bona fide, nec Adulterium ●●mittunt. ibid. nu. 17.  
(11.) Although the D. D. are 〈◊〉 divided in this point of second Marriage, whilst the Divorced Parties are alive; yet the Law generally seems much more to incline to favour such second Marriages, where the Divorce is ex causa praecedenti, than where it is, ex causa subsequenti; For when it happens ex causa praecedenti, as when the Degrees prohibited are violated, Precontract, Frigidity in the Man, Impotency in the Woman, or other perpetual Impediment, the Marriage was void and null ab initio, it being a Rule and a Truth in Law, that non minus peccatum jungere non Conjungendos, quam separare non separand●s: But where the Divorce happens ex causa subsequenti, there the Marriage was once good and valid in Law, and therefore (as some hold) indissoluble; and that such subsequent cause can have no influence quoad vinculum M●trimonii, but only quoad separationem à Mensa & Thoro, which is but a Partial or Temporal, not a Total or Perpetual Divorce. A. was Divorced from his Wife for Incontinency, he after took another Wife▪ living the first Wife, Adjudged, the second Marriage was void▪ because the Divorce was but à Mensa & Thoro, and not à Vinculo Matrimonii. Rye and Juliambs Cas. More 's Rep. Sanchez says that Quoties Matrimonium dissolvitur, si id fit ob utriusque Conjugis perpetuum impedimentum, utrique aliae Nuptiae interdicendae sunt: S● vero ob alterius tantum impedimentum, illi interdicuntur, concessa non impedito Licentia ad alias tra●s●undi. Sanch. de Matrim. lib. 7. Disp. 93. nu 37 And again in the same place, Viro ratione Frigiditatis separato, conceditur Foeminae Licentia Nubendi alii, ea viro denegata: Et Foeminae ob impedimentum separatae interdicto alio Conjugio, id non denegatur sed conceditur viro. ibid. etc. Laudabilem de Frigid. etc. 2. in fin. 33. q. 1. etc. ex literis. eod. tit. Likewise the Summa Astensis hath the same in substance, si Arctatio alligetur (subaudi quamcunque impotentiam Foeminae) statim potest Divortium fieri hac m●do: vocabantur Matronae fide dignae, & in Nuptiali opere expertae, ar. ff. de ventr. inspect. l. 1. verb. igitur, etc. Et si Mulieres asserant eam non posse fieri Naturaliter Matrem, tunc statim potest Divortium fieri, & dabitur viro Licentia cum alia contrahendi. Sum. Astens. in l. 8. de Divor. propter impotent. tit. 37. fo. 233. as aforesaid: yet Tostatus on the 19 th' of Mat. saith, that Fornicatio non valet simpliciter ad dirimendum Matrimonium, sed ad tollendam Cohabitationem. Tostati Index. verb. Matrimon. as appears also by the Canon Law. Extra de Divor. etc. Gaudemus, etc. Quare facto Divortio (says Tostatus again) non transeatur ad aliud Matrimonium, Tostat. ibid. for which he there quotes St. Jerome 
o D. Hieron. in Mat. tom. 5. 190. F. and 188. C. and 185. D. , who in this point is opposed by St. Ambrose 
p D. Ambros. ubi supra. . Possibly the different constructions that Divines and Lawyers do make of this word [Divorce] may not be the least reason of the different Opinions in this point; for Adam Tannerus (as aforesaid) tells us, That Juristae Divortii voce utuntur pro Dissolutione Matrimonii etiam quoad vinculum, ut constat ex toto tit. ff. de Divortiis. Adam Tannerus. Tom. 4. Disp. 8. de Matrim. q. 5. Dub. 5. de Divortio Col. 2232. nu. 74. & variis de causis solvi posse, ut videtur in iisd. Legib. & apud Gregory Syntag. jur. par. 2. lib. 9 cap. 5. Theologi tamen ea voce Divortii solum fignificant separationem inter Conjuges, aut quoad Cohabitationem, aut quoad Thorum. Tannerus ubi supra.  
(12. F. being Divorced for Incontinency of the Wife, he afterwards Marries P. the Daughter of R. living the first Wife. By the whole Court that is a void Marriage; for the Divorce is not, but à Mensa & Thoro, and does not dissolve vinculum Matrimonii. And by Whitgift Archbishop of Canterbury. So also is the Opinion of Divines and Civilians 
q Hill. 44. Eliz. Rye verse Fulcombe. in Noy's Rep. and More Rep. Case 893. . As also in Dame powel's Case against Weeks formerly hinted, In Dower it was resolved, That a Divorce Causa Adulterii is no Bar of Dower; because it is but à mensa & thoro, & not à vinculo Matrimonii. And it was said by Daniel, that an Elopement is not a bar of Dower ad ostium Ecclesiae. And Judgement for the Plaintiff 
r Dame powel verse Weeks. Noy's Rep. .  
Agar of Kingston upon the Thames was sued in the Ecclesiastical Court for beating of his Wife, and for calling her Whore, and was sentenced there to pay his Wife three shillings a Week for her Alimony, and divers Fines were imposed upon him for not performing thereof, and a Prohibition was granted, and also a Habeas Corpus, to deliver Agar out of Prison 
s Agar's Case in Brownl. Rep. pa. 2. .  
There was a Case of late years, where a Man Married the relict of his Great Uncle, he Married his grandfather's Brothers Wife by the mother's side, and it was held lawful, it was the Case of one Harison against Dr. Burwell 
t Trin. 20. Car. 2. C. B. Rot. 2043. Harrison verse. Doctor Burwell Vaugh. Rep. & Arg. . But where a Man Married his wife's Sisters Daughter, it was held unlawful, and after a Prohibition a Consultation in that Case was granted 
u Cro. 33. El. 228. Mann'● Case. vid. dict. Case Harrison. & vid. Case Hill verse. Go●d. in Vaugh. Rep. . But Marriages with cousin Germans are in the said Case of Harrison against Doctor Burwell reported by Sir John Vaughan to be lawful; in which Case, as also in the Case of Hill against Good, reported likewise by the said Sir John Vaughan Chief Justice, the Reader may find what Marriages are Lawful, and what not, what Marriages are prohibited within the Levitical degrees, and what Marriages are by God's Law otherwise prohibited.  
In the Case between Webster and Bury in an Ejectione Firmae, a special Verdict was given upon Divorce between bury and his Wife, causa Frigiditatis, 
Co. 5. Buries Case. 40 Eliz. C. B. , and that his Wife for three years after his Marriage remansit virgo intacta, propter perpetuam impotentiam generationis in viro, & quod vir fuit ineptus ad generandum; and in this special Verdict all the examinations of the Witnesses, upon which the Judge in the Ecclesiastical Court was moved to give his Sentence, by which the perpetual disability of Bury ad generandum was manifest, were read; and by which it was pretended, that the Issue which he had by a second Wife was illegitimate, and this was the doubt of the Jury; and it was adjudged, that the Issue of the second Wife was Lawful, for it is clear that by the Divorce (causa Frigiditatis) the Marriage is dissolved à vinculo matrimonii, and by consequence either of them might Marry after; then admitting that the second Marriage was avoidable, yet it remained a Marriage until it was Dissolved, and by consequence the Issue that is born during such Coverture (if no Divorce be in the Life of the Parties) is Lawful, Et homo potest esse habilis & inhabilis diversis temporibus, and judgement affirmed in Error.  
A. Was indicted upon the Statute of Primo Jacobi for having two Husbands. It was found that A. was Lawfully Married to N. and before the Judge of the Audience she sued a Divorce against P. 
Pasch 12. Car. B. R. Porter's Case.— Cro. par. 3.  propter saevitiam: whereupon it was decreed that propter saevitiam of her Husband, she should be separated à Mensa & Thoro, and it was expressed in the Sentence, that she should not Marry any other during the Life of P. she afterwards (P. Living, and she knowing thereof) took to Husband J. S. The Question was, whether that were Felony within the Statute. It was said in this Case, that this being a Divorce Causa Saevitiae, was but a separation à Mensa & Thoro, and not a Dissolution à vinculo Matrimonii, and therefore that the Marriage continued between them. The Court doubted, whether the Proviso in the said Statute did extend to every manner of Divorce; but inclined to be of Opinion, that she was not within the Proviso; for if this should be suffered, many would be Divorced upon such pretences, wherefore the Court advised the Woman, to procure a Pardon to avoid the danger of the Statute.  
Debt against Husband and Wife, 
Vnderhill and Brooks Case. Cro. par. 1.  as Executrix of her former Husband; the Defendants plead by attorney, that they were Divorced before the Writ brought: It was adjudged, that the Writ should abate; for it shall be presumed, the Divorce continueth, if the contrary be not showed. In another Case, being for Debt upon an Obligation, where the Defendant said, that at the time of the making of the Obligation she was Wife to J. S. who is yet in vita, and so Non est factum: 
Mic. 43. and 44. Eliz. B. R. Riddlesde● & Wogan's Case. Cro. par. 1.  The Plaintiff said, that after the making of the Bond, there was a Suit in the Ecclesiastical Court between the said J. S. and the Defendant, for that the said J. S. had another Wife alive at the time of the Marriage betwixt them, so as the Defendants Marriage was adjudged void. It was the opinion of the Court, that this Divorce was but Declarative, for it was void ab initio, and so the Defendant sole always and adjudged for the Plaintiff.  
The Wife Libelled against the Husband in the Ecclesiastical Court for Alimony, 
Sir Tho. Simmond's Case. More's Rep.  because he beat her so as she could not live with him; a Prohibition was prayed, but denied by the Court; and it was held in this Case, that the Wife might have the Peace against her Husband for unreasonable correction.  
By the Statute of 1 Jac. cap. 11. it is Felony to Marry a second Husband or Wife, the former Husband or Wife living; out of the generality of which Law the Lord Coke makes five exceptions. (1. 
Co. Inst. par. 3 cap. 27. vid. 22. E. 4. Consultation 5. Pains Case. lib. 9 fo. 72. ) It extends not (says he) to any person, whose Husband or Wife is continually remaining beyond the Seas by the space of seven years together; and notice is not material, in respect of the commorancy beyond Sea. (2.) It extends not, when the Husband or Wife shall absent him or herself, the one from the other, by the space of seven years in any parts within his majesty's Dominions, the one of them not knowing the other to be Living within that time; here notice is material, in respect the Commorance is within the Realm. (3.) It extends not to any person that at the time of such Marriage is Divorced by any Sentence had in the Ecclesiastical Court. (4.) Nor to any person, where the former marriage is by Sentence in the Ecclesiastical Court declared to be void and of no effect. (5.) Nor to any person, for or by reason of any former marriage made within the age of Consent.  
If the Man be above fourteen, and the Wife under twelve, or if the Wife be above twelve, and the man under fourteen, yet may the Husband or Wife so above the Age of Consent, 
Co. ubi supra.  disagree to the Espousals, as well as the party that is under the age of Consent: for the advantage of disagreement must be Reciprocal. And so it was resolved by the Judges and Civilians, Trin. 42 Eliz. B. R. in a Writ of Error between Babington and Warner. So as if either Party be within Age of Consent, it is no former Marriage within the Act aforesaid.  
It is commonly as well as formerly said, that there are two kinds of Divorces, 
Co. ibid.  the one that dissolveth the Marriage a vinculo Matrimonii; as for Precontract, Consanguinity, etc. The other a Mensa & Thoro, as for Adultery, because that Divorce by reason of Adultery cannot dissolve the Marriage a vinculo Matrimonii, for that the offence is after the just and lawful Marriage. And the said Stat. of 1 Jac. cap. 11. doth in respect of the generality of the words, privilege the Offender (in case of second Marriage, where the former Husband or Wife is living) from being a Felon, as well in the case of Divorce a mensa & thoro, as where it is a vinculo matrimonii, and yet in the Case of the Divorce a mensa & thoro the second Marriage is void, living the former Wife or Husband. And if there be a Divorce a vinculo matrimonii, and the adverse party appeal, which is a continuance of the former Marriage, and suspends the Sentence, yet after such a Divorce the party Marrying is no Felon within the said Statute, etc. although the Marriage be not Lawful.  
(13.) Alimony, although it properly signifies nourishment or maintenance, when strictly taken; yet now in the common, legal, and practicable sense, it signifies that proportion of the husband's Estate, which the Wife sues in the Ecclesiastical Court, to have allowed her for her present subsistence and livelihood, according to Law, upon any such separation from her Husband, as is not caused by her own Elopement or Adultery. By this Elopement is here understood, meant, and intended that voluntary departure of a Wife from her Husband to live with an Adulterer, and with whom she does live in breach of the Matrimonial vow, whereby she incurs the forfeiture of her Dower, unless her Husband upon her free and voluntary submission shall think fit by way of reconciliation to receive her again, and readmit her into the former conjugal relation 
a St. Westm. 2. cap. 34.  In which sense a Woman thus deserting and forsaking her Husband, is said to Elope, whereby the Law will not compel him in this case to allow her Alimony; on which word Mr. Blount in his Nomo-●exicon makes mention of an ancient record 
b Rot. Claus. An. 7. H. p. 1. m. 3. , wherein the same thing is called rationabile estoverium; This Alimony the Wi●e that Elopes' or departs from her Husband with an Adulterer (though she departed with her husband's consent) yet loses, together with her Dower or jointure, as appears by that remarkable Case of Sir John de Camois before recited 
c supra verb. Adultery. vers. sin.  And the Husband, from whom his Wife departs, and lives with an Adulterer, shall not be compelled to allow her any Alimony.  
14. Notwithstanding the premises, regularly the Husband is obliged to allow the Wife Alimony pendente lite, arg. l. si neget, ff. de lib. agnos. & Sanch. de Matr. lib. 2. Disp. 41. nu. 51. and afterwards in most Cases of separation not occasioned by Elopement or Adultery as aforesaid, nor in case of a total Divorce by reason of some legal impediment, whereby the Marriage was Null and void ab initio. dict. Sanch. Tom. 2. lib. 7. Disp. 93. nu. 22. This Alimony in strictness of Law is a duty properly due from the Husband to the Wife whilst she cohabits with him; for by the Canon Law if without any default of his, she does of her own accord departed from him, he is not obliged to allow her Alimony during such her wilful deserting of him, though she be not charged of Adultery. c. haec imago 33. q. ●. It being a Rule in Law, Qui non facit quod debet, non recipit quod oportet. l. si ea C. de Conduit. insert. & l. Julian §. affinis ff. de acti. empt. But if she depart by reason of some default in him, as because of cruelty or the like, in that case he shall be compelled to allow her Alimony; for the Law understands her as a dutiful Wife, so long as it is attributable only to him, and no way imputable to her, that she is constrained to seem otherwise. arg. l. jure civili. ff. de Cond. & demonst. & Lyn. in l. qui in uxorem. c. de Neq. gest. nu. 1. & D. D. Communiter. But if she depart of her own default, the Husband is not obliged to allow her Alimony, albeit he had a considerable dowry with her: and on the other side, if the Husband be in the fault, and she departed from him, he is obliged to allow her Alimony, though he had nothing with her. Jo. Lupus c. pro vestras. de Donat. in't. vir. & ux. Barbos'. 2. p. rubr. ff. solut. matr. nu. 43. And in case it be doubtful, through whose default it is, that they live asunder, the Law in that case concludes, that the party that was last in fault, is not least in fault, l. illud 17: ff. de peric. & commod. rei vendit. And therefore if the Wife, who by her own default did voluntarlly departed from her Husband, shall after repent, and submitting herself to him, shall desire reconciliation, and to be admitted to cohabitation with him, he then refusing her shall be obliged to allow her Alimony, save in the Cases aforesaid. Glos. c. significasti. verb. materiam in side Divort. ubi Host. nu. 2. verb. restitui. Jo. Andr. nu. 7. fi. & D. D. Communiter. On the other side, if by reason of the cruelty of the Husband the Wife shall blamelessly fly from him, and the Husband shall offer sufficient security or caution for his future good behaviour to her, & her safety and peace with him, and the cruelty or ill usage not such, but that by such caution the wife's peace and safety may be undoubtedly secured, and she notwithstanding refuse to return, in such case the Law will not compel him to allow her Alimony. Quia ultima ea culpa uxori nocet. Ferret. Council. 34. nu. 18. Barbos'. 2. p. rub. ff. solut. matrim. nu. 44.  
(15.) By the Civil Law, if a Dowry or Marriage-Portion with a Wife be promised and not paid to the Husband, he is not obliged to allow her Alimony; Gloss. Auth. de non eligend. secundo Nubentes. The reason whereof is, because such Portion quasi in pretium datur; l. pro oneribus, c. de jur. Dotium. But if by reason of some misfortune, her Parents or such as undertook for the Payment thereof, do after become insolvant, she shall notwithstanding have Alimony, even by that Law, which in other respects seems somewhat severe in this Point, unless you can affect them with Fraud in promising what they knew they could not perform. Barbos'. ff. solut. Matri. nu. 71. Or in case two persons lay claim to the same Woman, each pretending she is his Wife by Marriage, and the one of them move to have her kept under Sequestration till the Case be decised; in this case she shall have Alimony pendente lite of that Person at whose motion or instance she is so sequestered. l. si pro lusorio. ff. de appellat. But if the controversy be only between a Man and a Woman, touching the validity of a Marriage, as whether a Marriage or not; in such Case no Alimony is due, till some Matrimonial Proof appear, or that it doth some way constare de Matrimonio, but wherever a Marriage doth appear, there Alimony shall be due pendente lite; arg. l. si neget. ff. de lib. Agnosc.  
(16.) John Owen lived apart from his Wife: And upon Petition of the Wife to the Justices of Assize for Maintenance, they referred it to the Bishop of Bangor, who ordered that he should pay to his Wife 10 l. per an. which was afterwards confirmed by Decree in the Council of Marches of Wales. And because that John Owen disobeyed that Decree, and did not pay the 10 l. per an. the Council sent a Messenger to apprehend his Body, & caused his Goods and the profits of his Lands to be sequestered. And Henden prayed a prohibition: For that Alimony was not within their Instructions. Richardson demanded of him, if they could grant Prohibitions, if they meddle with a thing which belongs to Ecclesiastical Power, where they themselves have Power. Harvey was of the same Opinion, for this Court should preserve other Courts in order. Yeluerton said, for the Sequestration of the Lands, they could not do that. Richardson, they have not any Power to sell the Goods. The Ecclesiastical Court is the proper Court for Alimony; and if the Person will not obey, they cannot but excommunicate him. And by Yeluerton, when that comes to them from the Bishop to be confirmed, they cannot but walk in the Steps of the Bishop; and a day was given to show why a Prohibition should not be granted: And so it was ruled 
s Mich. 8. Car. C. B. John Owen's Case. Hetley's Rep. .  
(17.) Dame Shirley Wife of Sr. Henry Shirley sued in the High Commission Court for Alimony; and Hit●ham moved for a Prohibition; and said that Alimony is not within the Jurisdiction of the High Commission; for the Court of High Commission is to try Ardua Regni, which are not triable by the Common Law. Richardson, the Power of the High Commission is not the Arduis Regni, but of Heresies, and such other things Ecclesiastical; and he said, that the Court of High Commission had special words in their Commission, but not in the Statute of primo; and that the Statute de primo had no Prerogative in that: And so the Question is, if the King may by the Common Law grant such a Commission. Hutton said, that by the same reason as he may grant such a Commission, they may grant Commissions for all other things. Yeluerton, I marvel how that came within their Commission: he said that in tempore Jacobi, upon a debate before him, Sir Edward Cook so fully satisfied the King. And this matter of Alimony was commanded to be put out of their Commission. And upon that Richardson said to Hitcham, move this again when the Court is full, for we may advise of this— Et adjournat. etc. 
t Dame Sherley's Case. Hetleys' Rep. . One Broke was committed by the High Commissioners to the Fleet, because he refused Alimony to his Wife, and that being returned upon an Habeas Corpus, he was delivered.— Broke's Case. More's Rep.  
(18.) The Wife complains against her Husband in the Ecclesisiastical Court Causa saevitiae, for that he gave her a Box on the Ear, and spit on her Face, and whirled her about, and called her damned Whore. Which was not by Libel, but by Verbal accusation, after reduced to writing. The Husband denies it, and the Court ordered the Husband to give to his Wife 4 l. every Week, pro expensis litis and Alimony. Barkley and Henden moved for a prohibition. The Suit is originally Causa saevitiae, and as a Case wherein they Assess Alimony. And now for a ground of a prohibition, it was said that the Husband chastised his Wife for a reasonable cause, as by the Law of the Land he might; which they denied, and said, that they had Jurisdiction in these matters de saevitia, etc. And afterwards that the Wife departed, and that they were reconciled again. And then that reconciliation took away that Saeviti● before, as reconciliation after Elopement. Richardson, it was said here, that the Suit was without Libel, but that is no ground of a prohibition, for she proceeded upon that matter reduced in Articles, and we cannot grant a Prohibition if they proceed in their Form; For we are not Judges of their Form. But if they will deny a Copy of the Libel, a Prohibition lies by the Statute. You say, that an Husband may give reasonable chastisement to his Wife, and we have nothing to do with it: But only that the Husband may be bound to his good behaviour by the Common Law. And the Sentence in Causa saevitiae is a mensa & thoro, and we cannot examine what is Cruelty, and what not. And certainly the matter alleged is Cruelty; for spitting in the Face is punishable in the Star-Chamber. But if the Husband had pleaded a Justification, and set forth a Provocation to him by his Wife, to give her reasonable castigation, than there would be some colour of a Prohibition. Henden, we have made such an Allegation, and it is absolutely refused. Hutton, perhaps he is in Contempt, and then they will not admit any Plea; as if one be outlawed at Common Law he cannot bring an Action. But they advised the Plaintiff to tender a Justification, and if they refused it, then to move for a Prohibition 
u The Wife of Mr. Clobery against her Husband. Hetley's Rep. .  
(19 B. was ordered by the High Commission-Court to give Alimony to his Wife, and was bound in an obligation of 300 l. to one of the Doctors there, to give her Alimony, and to use her as his Wife; And now he is sued there again, and it is alleged against him that he had committed Adultery with divers Women, and that he had not given Alimony to his Wife, and thereupon B. was put to his Oath, who answered, that as to the point of Alimony he was not bound to answer, for that he was bound in an obligation to perform it, and also that he was sued to discover upon his Oath the forfeiture of the Obligation; and for that the Defendant would make no other answer, he was committed to Prison, and being brought hither by Habeas Corpus, the Court was prayed that he might be released for the reason aforesaid. Coke, Gawens' Case which was ruled here in rays time, was the same Case in effect, and it was ruled that the Ecclesiastical Court may not examine him upon his Oath in such Case, and per Curiam B. was Bailed till the next Term, for that that was the last day of the Term. Coke, for that there is an obligation taken in this Case, I will grant a Prohibition for taking an Obligation for that, if it be moved, and it was not well done to take the obligation to one of the Doctors, but we use to take the obligation in the King's Name, Mich. 5. E. 4. B. R. Rot. 143. The Statute of 2 H. 4 gives authority to Bishops to Fine and Imprison for heresy; And where one Reser had given a Legacy to Bishop Stephens, for which he sued the Executor, who being for not payment thereof Excommunicated, said that he was not Excommunicated before God, although he were before Men, for his Corn grew very well; for which words he was after Imprisoned, but he was bailed here per Curiam upon an Habeas corpus, for that it was not heresy, because that Court hath Authority to examine such things which are given by the Statute of 10. H. 7. One said, that the Tenth part of tithes was not due Jure Divino, for which words he was Imprisoned, whereupon the Habeas Corpus was brought, and that depended till 14. H. 7. at which time it was adjudged that it was not heresy, and that the Court had Jurisdiction to examine that, it being given by Statute. And it seems to me that the High Commission Court had not power to Fine or Imprison for Alimony. Hill. 12. Jac. upon an Habeas Corpus by one Codd, the return was that he was Imprisoned by the High Commission by that Warrant, 
Mich 12. Jac. B. R. Bradstons' Case.  viz. We command you to take him and Imprison him for manifest Contempt to the Court, for that he being ordered to receive his Wife, and to enter into an obligation to use her as his Wife, 
rolls Reports.  he refuses so to do. Coke, he shall be bailed, for that he could not be imprisoned by them for Alimony, nor take obligation to perform their order.  
Sentence was given in the Ecclesiastical Court, 
Hill. 12. Jac. B. R. Hyats' Case. Cro. p. 2.  that the Wife should be separated from her Husband, propter saevitiam of the Husband, and Alimony allowed her there: the Husband prayed a Prohibition, setting forth he desired a Cohabitation, and proffered Caution thereby to use her fitly. The Court denied it, because the Court of the Ordinary is the proper Court for allowance of Alimony.  
A Libel was before the High Commissioners, which supposed divers cruelties used by the Husband against the Wife, for which she was enforced to departed from him, who would not allow her maintenance, and therefore she sued before them for Alimony: But because it is a Suit properly suable before the Ordinary, wherein if there be wrong, the party may have an appeal; and although it be one of the Articles within their Commission to determine of; yet because it is not any of the clauses within the Stat. of 1 E. 6. for which causes the Commission is ordained, the Court awarded a Prohibition.   

CHAP. XXXVII.  
Of Defamation.  

1. What Defamation is; how many ways it may be; and where Cognizable.  
2. Two ways of prosecution at the Civil Law in Causes of Defamation.  
3. Prohibition for suing in the Ecclesiastical Court upon the words [Drunkard and Drunken Fellow.]  
4. Several differences in reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander.  
5. Whether Action lies for calling one Quean?  
6. Prohibition for suing in the Ecclesiastical Court for words tending to the obstruction of a Marriage.  
7. Matters determinable at Common Law, not Cognizable in the Ecclesiastical Courts.  
8. Whether these words [Thou hast taken a false Oath] be Actionable, and in what Court?  
9 Whether Action lies at Common Law, for saying Thou art a Whore, etc.  
10. Words of Slander to the hindrance of Marriage, are Actionable at the Common Law.  
11. Defamatory words [Thou art a Bawd and keepest a Bawdy house] whether and where Actionable?  
12. To say A. is a Cuckold, and that B. had lain with the Wife of A. is a Defamation suable in the Spiritual Court.  
13. The Difference as to Cognizance between the words [Thou art a Bawd, and I will prove thee a Bawd] and the words [Thou keepest a House of Bawdry.]  
14. To say [Thou art a Drunkard or a Drunken Fellow] whether such words are suable in the Ecclesiastical Court?  
15. The words [he is a Cuckoldly knave] are suable not in the Temporal, but in the Ecclesiastical Court.  
16. Whether the calling of Pimp, Common Pimp, be Actionable, and in what Court.  
17. Welsh J●de, expounded to be Welsh whore, and cognizable in the Ecclesiastical Court.  
18. Whether the words Quean or Base Quean be Actionable in the Ecclesiastical Court?  
19 Action in that Court for scandalising a Parson.  
20. Whether Action lies in the Ecclesiastical Court, for saying of one that kept a Victualling house, that she kept a House of Bawdry.  
21. Whether the words [Thou art a Pander] be Actionable at the Common Law?  
22. Churchwardens presentment of a Feme Covert upon a Common Report for Adultery, and Action of Defamation brought in the Ecclesiastical Court thereon.  
23. Whether Action upon the Case for words lies against an Infant of Seventeen years of age?  
24. Several other Cases at the Common Law pertinent to this Subject of Defamation; what of them cognizable in the Ecclesiastical Court; and wherein the Prohibition lies or not.   
(1.) DEFAMATION, properly so called, is the utterance of Reproachful Speeches, with intent of raising an ill Fame of the Party so reproached; Defamare, est in mala Fama ponere: Bart. l. turpia. ff. de Legat. 3. This extends itself to Writing, as by defamatory Libels; as also to Deeds, as by Reproachful Postures, Signs and Gestures; Lindw. c. authoritate. verb. quacunque. in gloss. de Sent. excommunicate. And as for the most part it proceeds of malice, implying matters either of Crime or Defect; so it generally aims at some prejudice or damage to the Party defamed. 
All Actions of Defamation suppose in additu quam plupalavit, etc. Case Barrew against Lew●lling. Hob. rep.  Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by virtue of Prohibitions and Actions upon the Case; yet it will not be denied, but that the Cognizance of Defamations, where they are duly prosecuted, doth properly belong to the Spiritual Law, specially where the matter of the Defamation is only Ecclesiastical.  
(2.) In all causes of Defamation the Party defamed had his Election by the Civil Law, whether he would prosecute the Defamer ad Vindictam publicam, or ad privatum interest; the former whereof was made choice of, where the Defamed aimed more at the Defamers shame, than his own Interest; and chose rather to reduce him to a Recantation, than augment his Cash by his own Credit's diminution; l. in constitutionib. §. ult. ff. L. Cornel. The other, viz. ad privatum interest, was chosen by such Defamed ones as valued their Credit at a certain Rate, and chose rather a Pecuniary Compensation, than an unprofitable Recantation; aiming more at their own private satisfaction, than at the Defamers public Disgrace. l. stipulationum. §. plane. ff. de verbor. obligat. & l. si quis ab alio. ff. de re judic. But both of these the Defamed could not have; for having determined his Election, he was therewith to rest satisfied; only having obtained a Sentence against the Defamer, for his Recantation or public Disgrace by prosecuting him ad publicam vindictam, he might possibly have in Lieu thereof a pecuniary recompense by way of Commutation. The Prosecution ad publicam vindictam was left to the determination of the Ecclesiastical Jurisdiction, the other to the Cognizance of the Secular: Much in conformity to what the Laws of this Realm in Cases of Defamation seem to say, viz. where the Prosecution is merely for the Punishment of Sin, and Money not demanded, there the Spiritual Court shall have the Cognizance: But where Money is demanded in satisfaction of the Wrong, there the Temporal, specially if the Defamer undertake to justify the matter, or the words express or imply a Crime belonging to the Cognizance of the Common Law. 
Vid. Stat. 2. E. 3. c. 11.  These Actions of Defamation are of a higher Nature, than they seem primo intuitu to be (a man's good Name being Equilibrious with his Life;) and therefore the Law calls them Actiones praejudiciales, that is, such as draw lesser Causes to them, but themselves are drawn of none.  
(3.) One Libelled against another in the Ecclesiastical Court, for saying That he was a Drunkad, or a Drunken Fellow, and an addle Drunken Fellow, and by the opinion of the whole Court a Prohibition was granted, and for such words a Prohibition was granted in C. B. in the Case of Martin Calthorp 
e Mich. 8. Car. B. R. cuckoo's Case Jones Rep. .  
(4.) One moved at the bar for a Prohibition to the Ecclesiastical Court on a Suit there depending for calling one Bawd; Jones Justice conceived, that these Differences ought to be observed, where a Man calls a Woman Whore, or such like Slander, for which Suit lies in the Ecclesiastical Court against the Party (if the matter appear) in that Case Suit lies for Slander there, and no Prohibition lies; è contra, if a man be called Thief, traitor▪ or the like, whereon no Suit lies for the Principal in the Ecclesiastical Court, but at the Common Law, if one be sued for such Slander in the Ecclesiastical Court, a Prohibition lies. If a man call one Bawd, for which Suit lies at the Spiritual Court and also at the Common Law; there if the Suit be for Slander in the Ecclesiastical Court, in that case no Prohibition lies, for the Party hath Election to sue in which Court she please: So if a Woman be Slandered in her Reputation, whereby she is hindered in her Marriage, she may sue either at the Common Law or in the Spiritual Court for Slander. And lastly, if a man speak any words, for which no Suit lies at Common Law, nor are such as concern any thing whereof the Ecclesiastical Court takes Cognizance, it seems that in such Case if Suit be in the Spiritual Court for Slander, as for Convitia, a Prohibition lies, as for calling one Knave, Drunkard, or the like. Quaere of that, the Chief Justice agreed to that, the others said nothing therein 
f Trin. 7. Car. B. R. Anonymus. Jones. Rep. .  
(5.) A Suit was commenced in the Ecclesiastical Court, where the Lilbel was, that he called the Plaintiff Quean, or words to that effect, or importing the same Sense; in this Case a Prohibition was granted: (1) Because no Action lies for that Word Quean. (2) For the uncertainty thereof 
g Anonymus. Latch. Rep. .  
(6.) The Defendant said to one Anthony Elcock (who was a suitor to the Plaintiff, and with whom there was near an Agreement of Marriage) I know Davies Daughter, well, she did dwell in Cheapside, and a Grocer did get her with child, and the Plaintff declared, that by reason of these Words, Elcock refused to take her to Wife. Adjudged, that the Action would lie at the Common Law, and the Suit was not to be in the Spiritual Court for Defamation; but at the Common Law, for that she is prejudiced in that which should be her Temporal advancement; and the ground of the Action is Temporal. The truth of the Case was this; an Action upon the Case for a Slander was brought by Anne Davies against John Gardiner: That whereas there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock; the Defendant to the intent to hinder the said Marriage, said and published, that there was a Grocer in London that did get her with Child, and that she had the Child by the said Grocer, whereby she lost her Marriage. To which the Defendant pleaded Not guilty, and was found guilty at the Assizes at Aylesbury to the damages of Two hundred Marks, and now it was alleged in Arrest of judgement, that this matter appeareth to be merely Spiritual, and therefore not determinable at Common Law, but to be prosecuted in the Spiritual Court. But per Curiam, the Action lies here, for a Woman not Married cannot by intendment have so great advancement as by her Marriage, whereby she is sure of maintenance for her life, or during her Marriage, and Dower and other benefits which the Temporal Laws give by reason of her Marriage; and therefore by this Slander she is greatly prejudiced in that which is to be her Temporal advancement, for which it is reason to give her remedy by way of Action at Common Law: As if a Woman keep a Victualling house, to which divers of great credit repair, whereby she hath her livelihood, and one will say to her Guests, that as they respect their Credits, they take care how they use such a House, for there the Woman is known to be a Bawd, whereby the Guests avoid the House, to the loss of her Husband: shall not she in this Case have an Action at Common Law for such a Slander? It is clear that she shall. So if one says, that a Woman is a Common Strumpet, and that it is a Slander to them to come to her House, whereby she loseth the advantage that she was wont to have by her Guests, she shall have her Action for this at Common Law. So here upon these collateral circumstances, whereby it may appear that she hath more prejudice than can be by calling of one Harlot, and the like. And judgement was given for the Plaintiff 
h Davies verse. Gardner. Poph. Rep. Vid. did. Cas. Coo. lib. 4. 16. 3●. Eliz.   
(7.) Touching Defamation, for which Suit is in the Ecclesiastical Court. Resolved, the matter must be mere Spiritual and determinable only there; for if it concern any matter which is determinable at the Common Law, the Ecclesiastical Judge hath not the cognizance thereof 
i 25. Eliz. Palmer and Thorp's Case. Co. 4. par. 20. .  
(8.) Action was for these words, Pierce hath taken a false Oath in the Court of Consistory of Exeter. It was objected, that for matters in the Spiritual Court, an Action will not lie: And the Stat. of 5 Eliz. of Perjury, doth not extend to those Courts, but it was resolved, that the Action did lie for these words, and that the Statute doth extend to such and the like Courts; as the Court of Star-chamber, etc. And the words, that he hath taken a false Oath, shall be intended actively, and shall amount to these words, He is forsworn. In this Case it was said by Prideoux, that these words are Actionable, although the Perjury be supposed to be committed in the Spiritual Court; for he shall be Excommunicated if he will not appear, and he shall do penance in a white sheet, which is as great a disgrace as to be set upon the Pillory. And it was ruled in an Action upon the Case betwixt Dorrington and Dorrington, upon these words, Thou art a Bastard, that an Action lieth, and yet Bastardy is a Spiritual matter, and there determinable; so for these words, Thou art a Pirate, an Action lieth, and yet Piracy is not punishable by the Common Law, but in the Court of Admiralty. And these words, He hath taken a false Oath, do amount to these words, He is forsworn. Wray conceived, that the words are not Actionable, for there is a Proviso in the Statute of Eliz. cap. 9 that the said Act shall not extend to any Ecclesiastical Court, but that every such Offender shall be and may be punished by such usual and ordinary Laws as heretofore have been, and are yet used, and frequent in the said Ecclesiastical Court. Gaudy, upon these words, an Action doth not lie, for they are not pregnant of any Perjury in the Plaintiff, for he may be mere passive in it: for if one of the Masters of the Chancery Minister an Oath to any person, or any Commissioners, etc. and the Plaintiff sweareth falsely, a Man may say that the Master of the Chancery, or the Commissioners have taken a false Oath: and yet he is not guilty of falsity. And afterwards Mutata opinion Wray, that the Proviso in the said Statute is to this intent, such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as was before, but the same doth not take away or restrain the Authority of the Common Law, but that such an Offence may be here examined, etc. And as to the latter exception upon these words (he hath taken a false Oath) it shall be intended Actively, and not Passively; And if so, the Defendant ought to have so pleaded it: And afterwards Judgement was given for the Plaintiff 
k Hill. 32. Eliz. Rot. 434. B. R. Pierce verse. How Leon. Rep. .  
(9) Pollard and his Wife brought an Action against Armshaw, for these words, viz. Thou art a Whore, for I. S. Goldsmith hath the use of thy Body, and the Cart is too good for thee. Per Curiam, the Action will not lie; for the Common Law cannot define, who is a Whore; but where if one keep a Victualling House, it be said she keeps a house of Bawdry, an Action will lie 
l 40. Eliz. B. R. ●ollard and his wife against Armshaw. Gold. 172. .  
(10.) Action upon the Case for words of Defamation. Whereas the Plaintiff was a Person of good Fame, and always free from Adultery and Fornication, etc. And after the death of Brian her late Husband, was in Communication with one Cowley for a Marriage betwixt them; That the Defendant to deprive her of her Fame, and to hinder her from the said marriage, spoke of the Plaintiff these words, viz. she is a Whore, and her Children (innuendo her Children which she had by the said Brian late her Husband) are Frambishes Bastards (innuendo one Nicholas Frambish.) After Verdict upon Not Guilty, & found for the Plaintiff, it was moved in Arrest of judgement by Grimston, that these words are not Actionable: For, for calling Whore, there lies not any Action; and to say that her Children by her former Husband, are Frambishes Bastards, is repugnant in itself; for they cannot be Bastards, which were born in the time of her former Husband: But all the Court held that the Action well lies. For to say of a Widow who is in Comnunication of Marriage with another, that she played the Whore in her former husband's time, is a great Discredit: And to say that her Children are Bastards (although in truth they cannot be Bastards in Law, yet in Reputation they may be so) is cause of loss of her Marriage, and that none will marry with her; wherefore it was adjudged for the Plaintiff 
m Mich. 9 Car. B. R. Dorothy Brian verse. Cockman. Cro. Rep. .  
(11.) Action upon the Case. Whereas he keepeth an Alehouse Licenced by Justices of the Peace, that the Defendant to scandalise the Plaintiffs Wife, spoke these words of her, Hang thee Bawd, Thou art worse than a Bawd: Thou keepest a House worse than a Bawdy house, And thou keepest a Whore in thy House to pull out my Throat. Upon not guilty pleaded, found for the Plaintiff. Stone moved in Arrest of judgement, that these words are not Actionable; but agreed, that for saying One is a Bawd, and keeps a Bawdy house, Action lies, because it is a temporal Offence, for which the Common Law inflicts punishment. But to call one Bawd without further speaking, an Action lies not, no more than to call one Whore. But it is a Defamation punishable in the Spiritual Court. And to say That be keeps a House worse tha● a Bawdy house hath not any intendment what he means thereby; wherefore the Action lies not: And if it be intended, that such words should hinder Guests from coming thither, being an Alehouse, the Husband only ought to have brought the Action. And as to that, the Court (absent Richardson) agreed. But for the other words, they held, the Action lies by the Husband and Wife, for the slander to his Wife; and it is as much as if he had said, that she keepeth a Bawdy house; wherefore it was adjudged for the Plaintiff 
n Trin. 9 Car. Person and his Wife against G●oday. Cro. Rep. .  
(12.) A prohibition was prayed, b●cause A. and his Wife sued in the Ecclesiastical Court for Defamation, and speaking these words of the Plaintiff, He was a Cuckold and a wittol, which is worse than a Cuckold, and that Aylsworth had lain with Ayloffs Wife; And for these Defamatory words he sued there; and because it was alleged, that for these words, being but words of Spleen, Prohibitions had been usually granted, day was thereupon given until this Term, to show cause why a Prohibition should not be granted, and divers precedents were showed, that for calling one Cuckold or Whore, Prohibitions have been granted: But now upon advertisement all the Court agreed, that no Prohibition should be granted, but that the Ecclesiastical Court should have Jurisdiction thereof: For although they agreed, that there ought not to have been any Suit for the first words, they being too general; yet being coupled with a particular, showing that the Wife committed such an Offence with such a particular person, they be not now general words of spleen in common and usual discourse and parlance; But they held it was a Defamation suable in the Spiritual Court; whereupon the Prohibition was denied 
o Pasch. 4. Car. C. B. Eton verse. Ayloff and his Wife. Cro. Rep. .— Brownlow chief Protonotary produced on that occasion several precedents, where Prohibitions had been granted to stay Suits for such words, viz. Trin. 15. Jac. rot. 2260. Purchas vers. Birrel, for that he was presented at several inquests within his Parish for being a Drunkard, and a Barretor. And Pasch. 6. Jac. rot. 397. Prohibition to stay a Suit for calling a Parson Hedge-Priest. And Mich. 21. Jac. Barker verse. Pasmore: She is a Quean, and a tainted Quean. Prohibition granted.  
13. H. Prays a Prohibition to stay a Suit in the Spiritual Court of Defamation for speaking these words, Thou art a Bawd, and I will prove thee a Bawd. And because these are words properly dererminable in the Spiritual Court, and for which no Action lies at the Common Law, a prohibition was denied. But for saying, Thou keepest a house of Bawdry, this being matter determinable at Common Law by Indictment, Suit shall not be in the Spiritual Court 
p Mich. 7. Car. B. R. Hollingsheads Case. Cro. Rep. . vid. 27 H. 8. and Co. lib. 4. foe 20.  
(14.) Prohibition was prayed to the Ecclesiastical Court to stay a Suit there for Defamation, for these words, Thou art a Drunkard or drunken fellow. And by the opinion of Croke, Jones and Berkley, a Prohibition was granted: For these words do not concern any Spiritual matter, but merely Temporal, and they be but Convitium Temporale, and a common phrase of brawling, for which there ought not to be a Suit in the Spiritual Court; and so it was held in Martin Calthorp's Case, in C. B. but Richardson doubted thereof, because the Spiritual Court as well as the Temporal may meddle with the punishment of drunkenness; so it is not merely Temporal: But he assented to the grant of a Prohibition, and the Party may (if he will) demur thereto; whereupon a Prohibition was granted 
q Mich. 8. Car. B. R. cuckoo verse. Star. Cro. Rep. .  
(15.) Prohibition was prayed by Bulstrod for Gobbet, to stay a Suit in the Spiritual Court for Defamation, in speaking these words, He is a Cuckoldly Knave, and cited precedents, that for saying, He is a Knave and a cheating Knave, Suit being in the Spiritual Court, a Prohibition was granted upon good advisement; and the Court said, that precedent is not like to this Case, for there was not any offence wherewith the Spiritual Court ought to meddle, but in this Case for these words, it is properly to be examined and punished there pro reformatione morum; for it is a disgrace to the Husband as well as to the Wife, because he suffers and connives at it, whereupon (absent Richardson) the Prohibition was denied. Again, it was moved, that this should be granted upon the Statute of 23 H. 8. because he was sued in the Court of the Arches, which is in the Archbishop's Jurisdiction, and the words were spoken at Thistleworth in London diocese, as appeared by the Libel. But Jones said, that he was informed by Dr. Duck. Chancellor of London, that there hath been for long time a composition betwixt the Bishop of London and the Archbishop of Canterbury, that if any Suit be begun before the Archbishop, it shall be always permitted by the Bishop of London; so as it is quasi a general licence, and so not sued there but with the Bishop's assent; and for that reason the Archbishop never makes any Visitation in London diocese. And hereupon also the Prohibition was denied 
r Hill. 9 Car. B. R. Gobbets Case. Cro. Rep. par. 3. .  
(16.) Action, for that the Defendant had said of and to the Plaintiff, being of good same, and one who had served as Captain in the Wars, haec verba in London, Thou art a Pimp, averring that in London that word was known to be intended a Bawd; and further said, that he was a common Pimp, and notorious, which he would justify. After Verdict for the Plaintiff, Littleton (the King's solicitor) moved in Arrest of judgement, that these words are not Actionable; for it is a mere Spiritual Slander, as Whore or heretic, and punishable in the Spiritual Court, and not at the Common Law; and he said, that divers times Suits have been in the Spiritual Court for such words, and Prohibitions prayed and never granted. vid. 27. H. 8. 14. But to say that he keeps a Bawdy house, is presentable in the Leet, and punishable at the Common Law. Ward, è Contra, because it is spoken of one of an honourable profession, viz. a soldier, and trenches on his reputation to be taxed with such a base Offence; and he said, that such offences have been divers times punished in London by corporal punishment, but it was answered, that was by Custom; and there the calling one Where is Actionable. Jones Justice held that the Action lay not; and all the Justices agreed, that the exposition and averment (that Pimp is known to be a Name for a common Bawd) is good. Croke and Berkley agreed, that the words are very slanderous, and more than if he had called him Adulterer or Whoremonger, etc. and may be indicted and punished for it corporally, as tending to the breach of the Peace; and rule was given that Judgement should be entered, etc. But was afterwards stayed 
s Mich. 10. Car. rot. 148. Dymmock verse. Faweett. Cro. Rep. .  
(17.) Suit being in the Ecclesiastical Court for calling a man's Wife Welch Jade and Welsh Rogue, Sentence being there in the Arches, the Defendant appealed to the Court of Audience; and in the Appeal mentioned the former words, and in the libel was interlined [and a Welsh Thief:] and hereupon a Prohibition was prayed and granted, unless cause were shown by such a day to the contrary: For it was held clearly, that for the word [Welsh Thief] Action lies at the Common Law, and they ought not to sue in the Spiritual Court: And for the other words, it was conceived upon the first Motion, they ought not to sue in the Spiritual Court, for they be words only of Heat and no Slander. But it was afterwards moved and shown, that the said words [A Welsh Thief] were not in the first Libel, nor in the Appeal at the time of the Appeal; but were interlined by a false Hand without the privity of the Plaintiff in the Ecclesiastical Court, and that upon Examination in that Court, it was found to be falsely inserted, and ordered to be expunged. And that the words Welsh Jade were shown in the Libel to be expounded and so known to be a Welsh Whore; which being a Spiritual Cause and examinable there, it was therefore prayed that no Prohibition should be granted; and if it were granted, that a Consultation should be awarded. And of this Opinion was all the Court, that the words [and a Welsh Thief] being unduly interlined, and by Authority of the Ecclesiastical Court expunged, and in that Court Jade is known and so expounded for a Whore, our Law gives Credence to them therein, and especially being after two Sentences in the Spiritual Court. This Court will not meddle therewith. Wherefore Consultation was granted, if any Prohibition was issued forth quia improvide; And Rule given, that if a Prohibition was not passed, that none should be granted 
t Pasch. 12. Car. C. R. Pew and his Wife ver. Jefferyes. Cro. Rep. .  
(18.) It was moved for a Prohibition by Harris sergeant to the Court of Audience, because that the Plaintiff was sued there for saying to one, Thou art a common Whore and a base Quean, and Harris said, that a Prohibition had been granted in this Court, for saying to one that she was a pimperly Quean: And it was the Case of Man against Hucksler: And Finch said, though the words are not Actionable in our Law, yet they are punishable in the Spiritual Court, For the word Quean in their Law implies as much as Whore: But Hobart said, that this word Quean is not a word of any certain Sense, and is to all intents and purposes an Individuum Vagum, and so incertain 
u Trin. 19 Jac. C. B. Winch. Rep. .  
(19) In an Action upon the Case; that whereas he is Parson of D. and a Preacher, the Defendant Slandered him in haec verba, Parrett is a lewd Adulterer, and hath had two Children by the Wife of I. S. I will cause him to be deprived for it. By the Court the Action doth not lie: For the Slander is to be punished in the Ecclesiastical Court. And so awarded Quod Quer. nil. cap. per. bill. 
x Case Parrett verse. Carpenter. Noy. Rep. .  
(20. D. had sued T. in the Ecclesiastical Court for this, viz. That whereas she was of good fame, and kept a Victualling House in good Order; that the said T. had published that D. kept an house of Bawdry. T. now brought a Prohibition, and by the Court well; for D. might have an Action for that at the Common Law, especially where she kept a Victualling house as her Trade. Note, 27. H. 8. 14. And by the Justices, that the keeping of a Brothel-house is enquirable at the Leet; and so a temporal Offence. And so was the opinion of the Court; Tr. 7. Car. B. R. Mrs. Holland's Case 
y Thorne against Alice Du●ham. Noy. Rep. .  
(21. W. sued L in the Ecclesiastical Court for a Defamation, and had Sentence; L. appeals, and depending the Appeal comes a Pardon, which relates to the Offence, and pardons it; then L. deferrs his Appeal, and for that W. had costs taxed him: And now L. prayed a Prohibition, because he deferred his Appeal because of the Pardon, which had taken away the Offence. And by the Court in that Case, after the pardon the inferior Court cannot tax Costs; but it was urged that the superior Courts might tax Costs upon the desertion of the Appeal, which is an Offence after the Pardon. But it was answered on the other side, that it was in vain to prosecute the Appeal, when the Offence itself is pardoned. The words were, Thou art a Pander, to Sr. Hen. Vaughan: And there was much debate if they were actionable at Common Law; yet it was agreed, that a Suit may be brought for them in the Spiritual Court, as for calling one Whore, Bawd, or Drunkard: But otherwise by Jones, if he had said, That he was Drunk; for then a Prohibition lies. And it was ruled in 6. Jac. B. R. in the Case of Cradock against Thomas; a Prohibition was granted in a Suit for calling one Whoreson. And in Weeks Case, a Prohibition in a Suit for calling one Knave 
z Case jews against Whitton. Noy Rep. .  
(22. E. and M. being reputed churchwardens (but they never took any Oath, as the Office requires) present a Feme Covert upon a common report for Adultery, etc. And the Husband and Wife libel against them in the Ecclesiastical Court for that Defamation. And when Sentence was ready to be given for them, the churchwardens appeal to the Arches, where the presentment was proved but by one Witness; they sentenced the Baron and Feme. But now Ward sergeant, moved for a Prohibition, but it was denied by the Court; for they were Plaintiffs first. And also it is a Cause, which this Court had not any Cognizance of 
a Eaten and morris' Case. Hetley's Rep. .  
(23.) Note, upon evidence to the Jury, Resolved by the Court that an Action upon the Case for words, lies against an Infant of Seventeen years of age. For malitia supplet aetatem 
b Sir Christoph Hod●man verse. John Grisell. Noy ' s Rep. . And it is said at the Common Law, that if a Man Libel in the Ecclesiastical Court against one for saying certain words of him, which he will maintain in an Action upon the Case at Common Law, a Prohibition lies 
c Hill. 4. Jac. B. R. inter Turnain and thorn per Cur. & Mich. 38, 39 Eliz. B. R. Butler and Bartlett. Adjudgd. .  
(24.) If a Man Libels in the Ecclesiastical Court against one for saying that he is a Witch or the Son of a Witch; although no Action lies for that at the Common Law, yet no Prohibition shall be granted, for peradventure he may have some Spiritual prejudice thereby, if he should be the Son of a Witch, as that he cannot be a Priest or the like: (for it seems all the force of the words consists in the last words, they being spoken in the disjunctive) 
d Rep. 14. Jac. B. adjudge. vid. Rol. Abr. pag. 295. nu. 2. .  
If a Parson of a Church call A. B. Drunkard, upon which A. B. answers thou liest; if the Parson sue A. B. in the Ecclesiastical Court for giving him the lie, a Prohibition lies, for that the Cause for which he gave him the lie, is not Spiritual, but depending on a Temporal thing precedent 
e Mich. 7. Jac. B. inter Simpson and Water● per. Cur. . But if a Man call a Minister Knave, he may be sued for that in the Ecclesiastical Court, and no Prohibition lies 
f Hill 7. Jac. B. per Coke. . If one Man says of another, that he will not hear Sermons made by those who have been made Ministers by Bishops; he may be sued for that in the Ecclesiastical Court, and no Prohibition shall be granted 
g Hill. 7. Jac. per Cu●iam adjudge. .  
If a Man says of another, that he keeps a Bawdy house, and is sued for it in the Ecclesiastical Court, although he might have an Action at Common Law, yet the Ecclesiastical Law hath a concurrent Jurisdiction in this, and the words are mixed, for which reason no Prohibition lies 
h 27 H. 8. 14. b. per Fitzherbert  And if one says of another, that he is a Pander, he may be sued in the Ecclesiastical Court, for that the signification of that word is well known, and sounds to a Spiritual Defamation 
i Mich. 2. Car. inter jews and Whitley. per Dederidge and Jones contra Whi●l●ok. , Or if a Man says to another, Thou art a Cuckoldly Knave, and for that he and his Wife sue him in the Ecclesiastical Court for a Defamation, no Prohibition lies, for that these words amount to a Spiritual Defamation, viz. that his Wife was incontinent; in this Case a Prohibition was denied 
k Hill. 9 Car. B. R. inter Isles and Cobbet per Curiam. .  
Husband and Wife were Divorced for Adultery à mensa & thoro, & mutua cohabitatione (and as one of the Counsel said, de omnibus Matrimonialibus obsequiis, but the Counsel of the other party denied that) and after the Wife sued in the Ecclesiastical Court a Stranger for Defamation, and Sentence there given for her, and penance enjoined to the party Defendant, and costs of Suit assessed for the Plaintiff; and afterwards the Defendant appeals, and after the Husband of the Wife releases all Actions, and that Suit and all appertaining thereunto, and the Defendant pleaded that Release, and they remitted back the Suit to the inferior Court again; and now Coventry Recorder of London prayed a Prohibition, for that notwithstanding the Divorce they continued Husband and Wife, and therefore the Release of the Husband should bar the Wife from having Execution of the Sentence, and of the Costs 44 El. In this Court between Steevens Administrator of one Steevens, and Totte, the Case was, That after a Divorce for Adultery of the Husband à Mensa & Thoro, the Woman sued in the Ecclesiastical Court for a Legacy, devised to her by the Testator, and the Defendant pleaded a Release thereof from the Husband, and thereupon a Prohibition was granted, and he showed that precedent in Court, but the precedent did not comprehend the Divorce; But Doderidge said, he well remembered when that Case was argued, and the parlance than was about the Divorce. Wentworth, it seems that no Prohibition shall be granted, Hill. 7. Jac. in this Court. A Suit was commenced in the Ecclesiastical Court by two churchwardens, and the Defendant there pleaded the Release of one of them, and thereupon a Prohibition was here granted, and after a consultation was granted, for that they shall try that, having cognizance of the Principal, and in this Case the Release is after the appeal, and therefore it may not be pleaded upon the appeal, for the Judges in the appeal have no power but to examine the former Sentence, and not any collateral matter. Coventrie, I agree the Case of the churchwardens, for that the Release of one is not any bar in Law, for 38. El●z. it was here resolved between Methon and wins, that a gift by the churchwardens without the Assent of the Sidemen or Vestry is void; but it is otherwise here, for here the Release of the Husband is sufficient to discharge the Execution of that Sentence, the which is all that we demand, 10. l●. 3. such Divorce is not any bar of Dower. The Court seemed to incline that no Prohibition should be granted, for that the Wife in such Case may be sued alone without the Husband by the Ecclesiastical Law, and this is matter merely Spiritual viz. Defamation, and therefore we have nothing to do therewith, and the Release of the Husband shall not discharge the Suit of the Wife, which is only to restore her to her Credit and Reputation which was impeached by the other, and the Costs of Suit is not for any damage, but merely for the Charge of the Suit, and therefore the Suit being not discharged, the Costs shall remain also; and this Case is not like the forecited Case of Stephens, for the thing for which that Suit was, was originally a Legacy due to Husband and Wife, and therefore there the Release of the Husband was a good discharge, but here was no duty in the Husband originally, Ergo, etc. Curia advisare vult 
h Mich. 14. Jac. B R. Motam verse. Motam. Rol. 〈◊〉. Coke. 4. Palmer and Thorps' Case. 25. El. f. 20. .  
In Palmer and Thorps' Case it was resolved, that Defamation in the Ecclesiastical Court ought to have three Incidents. (1) That the matter be merely Spiritual and determinable in the Ecclesiastical Court, as for calling one Heretic, schismatic, Advowterer, Fornicator. (2) It ought to concern matter merely Spiritual only; for if it concern any thing determinable at common Law, the Ecclesiastical Judge shall not have Cognizance of it. See for this 22. E. 4. 20 the Abbot of St. Albon's Case. (3) Though the thing be merely Spiritual, yet he which is defamed, cannot sue there for amends or damages, but the Suit there ought to be for punishment of the offender, Pro salute animae: For this see Articulis cleri, & circumspect agatis, and Fitz. 51, 52, 53. but yet the Plainshall recover Costs there, and there if the Defendant to redeem his Penance agree to pay a certain sum, the Party may sue for this there, and no Prohibition lies in that Case.  
In a Case of Prohibition between M. and M. in the Ecclesiastical Court; the Case was, a Suit was there for Defamation, by the Wife of the party, a Sentence there given, and Costs pro expensis litis, the Husband did release these Costs, which they would not there allow of; upon a suggestion here that the Husband was divorced causa Adulterii, a Prohibition was prayed; and for which it was urged, that the Release by the Husband was good, the Suit being there for Defamation, Sentence there given, the Wife divorced à Mensa & Thoro, which doth not dissolve Vinculum Matrimonii, but that this notwithstanding they may come together again when they will; and such a Divorce is no bar of Dower. Doderidge, They are only to restore the Party to her good Name, in Case of Defamation: The point here only is, the Husband and Wife are divorced, Causa Adulterii, the Wife sues in the Ecclesiastical Court for Defamation, and there recovers, and Costs are given, the which the Husband did release; whether this Release thus made by the Husband, shall bar the Wife of her Costs. And if they will not allow of this Release there, whether a Prohibition shall be granted or not. The Whole Court clear of opinion, that no Prohibition in this Case is to be granted. And so by the whole Court, the Prohibition was denied.   

CHAP. XXXVIII.  
Of sacrilege.  

1. Whence the word sacrilege is derived, what it imports, and the several kinds thereof.  
2. It is taken properly and strictly, or improperly & in sensu largo; and is of a mixed Cognizance.  
3. The several ways whereby sacrilege may be committed.  
4. Who are intended by Persons Sacred, against whom sacrilege may be committed; the division thereof.  
5. Bartol's Definition of sacrilege; several severe punishments thereof Recorded by Historians.  
6. The several punishments inflicted on Sacrilegious persons according to the Civil and Canon Law; The Civil Law more severe therein than the Canon; how punished anciently in this Realm according to the Ecclesiastical Constitutions thereof.  
7. The dreadful Curse anciently and solemnly pronounced in Parliament against Sacrilegious persons.  
8. A remarkable Judgement that happened to a Bishop of Bangor for sacrilege.   
(1.) Sacrilege, from Sacro & Lego, or à Sacris Legendis, that is, suffurandis for that word Lego sometimes signifies furari or rapere: Isidor. lib. 1. Origin. lit. s. Sacrilegus, qui sacra legit, h. e. furatur. In the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 importing as much as to say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, that is praedari vel violari Sacra, for sacrilege is the violation or usurpation of some thing that is Sacred, Gloss. in cap. omnes Ecclesiae. 17 q. 4. and may be committed three several ways, As (1.) either in respect of the Person, as when a man doth wound or strike an Ecclesiastical Person in Holy Orders: or (2.) in respect of the Place, as when one violates the privileges or immunities of the Church or Church-yard: or (3.) in respect of the Thing, as when a thing Sacred or Consecrated or deputed or dedicated to some Sacred use is usurped upon and taken away, and this holds true, whether auferatur Sacrum de Loco sacro, vel non sacro, vel non sacrum de sacro. Lindw. de Offic. Archipres. c. 1. glos. in verb. Sacrilegium.  
(2.) Sacrilege is taken either strictly and properly, as when a thing sacred is stolen out of a sacred place; so it is held according to the Law generally, but either will amount to sacrilege according to the Canons: or in a large sense and improperly, and so it extends to other Crimes. l. si quis c. de Epis. & cle. etc. de sacrileg. per totum. As infringing the Church's Liberties, invading Ecclesiastical goods and the like, whereof more hereafter. Lindw. de immun. Eccl. c. 2. glos. in ver. Sacrilegi. The Emperors held their Constitutions so sacred, that they called the violation thereof Sacrilege. l. un. c. de Crimi. Sacril. This Crime is of a mixed cognizance, partly Ecclesiastical, partly Secular, whereof each Jurisdiction may jure proprio take cognizance. c. cum sit generale. De foro compet. So that this Crime of sacrilege is not merely Ecclesiastical, because the cognizance ●●●reof in some Cases may appertain to the Secular Judge, at lest quoad poenam, si quis in hoc c. de Epis. & Cler. And Hostiensis himself doth confess as much quoad poenam Corporalem; otherwise it is as to the censures of the Church contra talem fulminadas.  
(3.) There are many ways whereby sacrilege may be committed, as by invading the rights and goods of the Church, by unjust and illegal vexing and molesting the Church, by wasting and destroying the Church, by violating ecclesiastics, by a Clerks consulting with Soothsayers and Diviners, by violating Church-priviledges and Immunities, by striking a Clerk. Lindw. de immun. Eccl. c. seculi glow. in verb. ausu Sacrilego. Church-burners, Church-breakers, Church-robbers, by stealing the Church-bible, the Calais, or other thing out of the Church, by violating the Church-porch or breaking the Doors thereof, by striking in the Church, or apprehending and taking any one there, by obstructing the Jurisdiction of the Church, or hindering any of that free access which he ought to have to the Church, by usurping the Guardianship or custody of a Church that is void, and under that pretence posess themselves of the Goods and Revenues thereof, by usurping and occupying the Oblations and Offerings of the Church; but to explicate this Crime of sacrilege to its full latitude, it is requisite in order thereto, to distinguish aright of things Sacred which are violated thereby; for as Habits are distinguished ex objectis, so Vices by the matters about which they are conversant; now the matter of sacrilege is ever something Sacred, and therefore sacrileges are distinguished according to the diversity of Sacred things; whence Aquinas infers, that as there are Three kinds of things Sacred, viz. Persons, Places, and some other Things: So there is a Threefold kind of Sacrilege, viz. against Persons, against Places, and against other Things consecrated and dedicated to Divine Worship. Which distinction the Canonists do generally hold in each Member thereof: As sacrilege, (1.) Against Ecclesiastical Persons. cap. sicut. etc. quisquis. 17. q. 4. & in c. si quis deinceps usque ad cap. si quis suadente. ead. Caus. & q. (2.) Sacrilege against sacred places. cap. Miror, etc. Frater. (3.) Against the Goods and Revenues of the Church. cap. Sacrilegium. cap. Omnes Ecclesiae. & cap. Attendendum. It being expressly said, that Qui pecunias vel res Ecclesiae abstulerit, Sacrilegium facit. in cap. qui rapit. There is no sacrilege but may be reduced to one of these three heads, although under them there may be divers other kinds of sacrileges more particularly subdistinguished.  
(4.) By Persons Sacred is here understood such, as in a peculiar manner are set apart and dedicated to Divine public Worship according to Sacred Ordination; and the principal kind of sacrilege commissable against such, is the laying of violent hands on them, which is a violation of their Immunities or privileges. cap. si quis suadente. 17. q. 4. And as to sacrilege committed against Places sacred, the Canon is, That Sacrilegium Committitur auferendo Sacrum de sacro, vel non sacrum de sacro, aut sacrum de non sacro cap. quisquis 17. q. 4. Of which Three Members the Third doth not belong to this circumstance of Place. And as to the second Member thereof the Civil Law determines otherwise than the Canon, for in that Case the Civil Law says, that Res Privatorum, si in aedem sacram depositae, surreptae fuerint furti actionem non sacrilegii esse. l. diu. ff. ad leg. jul. pec. yet among the Canonists it is communis opinio, that furtum in loco sacro sacrilegium est. And where the Canon Law speaks of Churches, it says, si qui deposita, vel alia quaelihet exinde abstrahunt, velut Sacrilegi Canonicae Sententiae subjaceant. But every Offence done in the Church is not sacrilege; yet it is held, that it is in the power of the Ecclesiastical Jurisdiction, so to prohibit the doing of some certain things and actions in the Church, that such as offend against the Prohibition, shall be reputed Sacrilegions, though the things in themselves are not sacrilege. The Canonists also do hold, that the perverting of the Holy Scriptures, to uphold, maintain, or confirm errors, is gravissimum Sacrilegium. Suar●z. lib. 3. de Sacrilegio c. 7. nu. 1;  
(5.) Notwithstanding what has been said, Bartol defines sacrilege to be the taking away or stealing some sacred thing out of some public sacred place; this is most properly sacrilege, according to Bartol, Bart. in l. Sacrilegii poenam. ff. ad Leg. Jul. Pcculat. to which it may not be impertinent or superfluous to add [cum animo furandi.] The Civil Law punished it with death, Bart. ibid. & alii D D. in dict. L. & Menoch. de Arbit. Jud. l. 2. Cent. 4. Cas. 389. nu. 2. So the Athenians put a Boy to death for stealing a Plate of Gold out of Diana's Temple which fell from her Gown. Aelian. lib. 5. de var. Hist. cap. 16. Among the Grecians the Sacrilegious Persons were not to have the common humanity of a Grave, but were cast out unburied. Diod. Sicul. lib. 16. Biblio. in 6. An. Philippi. Philip King of Macedon in his holy war against the P●ocenses, having taken their General Onomarchus and routed their Army, commanded the General to be hanged, the rest to be drowned like Sarcrilegious persons. Idem dict. lib. anno 8. Philip. Alexander the Great in the Olympic Games caused it to be proclaimed by an herald, that all Exiles and Banished persons, except for sacrilege and Murder, should be permitted to return to their own country. Idem lib. 17. An. 9 Alexandri. & Gemist. Pl●tho. lib. 2. de Gestis. Graec. post pugnam Mantineam. Pleminius Ambassador from Scipio to the Senate of Rome, having robbed the Treasure of Proserpina, and being now nigh dead by a most searful and horrid kind of disease before he was brought to his Trial, the Roman Senate notwithstanding condemned him in double the sum to Proserpina. Livius lib. 9 Bel. 2. Punic. & Valer. l. 1. cap. 2. Domitian, when it was reported to him by the Flamens or Jupiter's High Priests, that one had erected a Monument for his Son with stones designed for the Temple or Capitol, commanded the Monument to be pulled down, and demolished, the Bones and Ashes of the Party to be cast into the Sea, and the stones to be restored to the Temple: Sueton. in Domitian. cap. 8. Xenophon relates out of the Laws of the Athenians against Sacrilegious persons in these words, viz. Judge, O Athenians, in this matter according to the law made against Sacrilegious persons and Traitors, That if any hath committed Treason or Theft of things Sacred, let him be adjudged to death, and let Sentence be that be be not buried in Athens, and all his goods confiscate. Xenoph. de lege athenians. Another Law against Sacrilegious persons apud Constantinum Harmenopulum, in haec verba, Whoever steals any thing Sacred out of a Sacred place, let him have his Eyes plucked out. Const. Harmen. lib. 6. Prompt. jur. car. 5. Gunctranus' King of the Parisians and Galls, with his Nobles and Bishops assembled on the Festival of Sumphorianus, made a Law that their Armies or Soldiers should not on pain of death, either on their March or on a Victory, rush violently into any Churches or rob the same. Greg. Turon. lib. 8. Hist. Franc. c. 30. Clearchus and Sitacles, Soldiers under Alexander the Great, being accused by his Army of robbing and spoiling Churches and removing ancient Monuments, were commanded to be put to death. Orxines, who succeeded Phrasaortes in the Kingdom of Persia, being accused and convicted of robbing and wasting the Temples, Churches, and the Monuments of the Kings, was by Alexander's command Crucified to death. Arria. lib. 6. in fin. de expedit. Alexan. The Law in some Cases doth leave the Penalty of sacrilege Arbitrary, especially where any Churches are notoriously and violently broken open, and the Offerings or sacred Vessels thence stolen away by night, in which case the Punishment is Capital; and so practised in the kingdom of Naples; Boerii Decis. 254. nu. 13. It is not the value of the thing stolen, that causes this crime of sacrilege to be so severely punished, but because there is more of audacity and iniquity in this kind of Theft than of others of inferior Circumstances; and therefore Calistratus accused Menalopus that he had robded Templi Custodes, Anglice, churchwardens, and had thence stolen away three very small Vessels minimi ponderis, yet even this was punished as sacrilege of a very criminal nature. Innumerable are the precedents of this kind found among Historians; to which might be added that of Famous or rather Infamous Remark, touching Charles Martell, King of France, cujus animam (says Tritemius) visam deportari od Inferos, quod multas Ecclesias spoliasset, dum bellis inimicos persequeretur. Tritem in Breviar. Hist. Franc. in fin.  
(6.) Touching sacrilege as diversified in respect of Persons, Places, and other things Sacred, the Canonists enumerate such kinds thereof, as would seem very uncouth and strange for us to hear of in this Kingdom, as the Constitution of the Ecclesiastical State thereof is now most Protestantly established; they are therefore here purposely omitted. The Penalties likewise inflicted on Sacrilegious persons vary according to Circumstances, and as the kinds or degrets of the sacrilege are; and herein the Canon and the Civil Law have provided very different penalties; which at the Canon Law are of one kind, and at the Civil Law of another: But according to the ancient Ecclesiastical Constitutions of this Realm, sacrilege of what kind soever, regularly incurr's the penalty of Excommunication, which admits also of distinctions: For as there is the greater and the lesser Excommunication; so there is Excommunication ipso facto, in Contradistinction to that which is only ipso jure; also the Law even in this point of sacrilege doth distinguish between Excommunication latam, and ferendam; for if it be sacrilege committed against an Ecclesiastical Person, then according to the Canon Law, and as heretofore practised in this Realm, the penalty was Excommunicatio lata; but when it is in respect of some things pertaining to the Church, in that case the Punishment was Excommunicatio ferenda. Lindw. de immun. Eccl. c. 1. glow. in ver. omnibus poenis. And sometimes a pecuniary punishment was inflicted for sacrilege. 17. q. 4. c. quisquis. etc. si quis contumax. The Ecclesiastical Law doth not punish sacrilege with that austerity and severity as the Civil Law doth, l. Sacrilegio. ff. ad Leg. Jul. peculat. whereby the punishment sometimes is Damnatio ad bestias, sometimes the Sacrilegious person is burnt alive, sometimes hung on Fonk, sometimes condemned to the Mines, sometimes banished, and sometimes sentenced to death in the ordinary way of Execution. He that is guilty of sacrilege against an Ecclesiastical person, is by the Canon Law excommunicatus ipso facto, 17. q. 4. c. si quis suadente. But if it be in rebus Ecclesiae, he is by that Law Excommunicandus. de Foro compet. c. conquestus. If it be committed in the Church, and that by firing or breaking it open, in that Case the Sacrilegious person is ipso jure excommunicated. de sent. Excom. c. conquesti. If it be without burning or breaking it open, as when a thing being left in the Church, is taken away, in that Case he ought to be excommunicated. De furtib. c. fin. And this (says Lindwood) may stand as a rule in Law, that wherever you find that regularly the Sacrilegious person is not ipso jure excommunicated majori Excommunicatione, it hath these several Fallentias', that is, it doth not hold in case of Burning, violating, spoiling and wasting of the Church, nor in burning or breaking open the Church door, nor in sacrilege against an Ecclesiastical person, nor in case of striking or violently apprehending any man in the Church, nor in any forcible or violent taking away any thing out of the Church, nor in any that were excommunicated before for the like Offence, nor in such as pull down or demolish the Body of the Church or any part thereof, and the like, Lindw. de immu. Eccl. c. ut invadentib. Glow. in ver. Excomunicati. All which is likewiseexpresly set down in John de Athon's Gloss on Cardinal Othobon's Constitutions, the abstrahentib. Confug, ad Eccles. c. ad tutelam glow. in ver. Obsevari. and seems to have an adequate affinity with what Solomon (who, as in other things, so specially in matters of the Temple, had the best experience) says, It is a suare to the man, who devoureth that which is Holy. Pro. 20. 25.  
(7.) The dreadful Curse denounced against Sacrilegious persons, appears in that remarkable passage in Parliament above Four hundred years since, where the privileges of the Clergy, and Franchises of the Church, were (with the Liberties of the People) granted, confirmed, and settled by the King in full Parliament, Anno 1253. in such a solemn manner, as no History can parallel; The King stood up with his Hand upon his Breast, all the Lords Spiritual and Temporal, stood with burning Tapers in their Hands, the Archbishop pronounceth as followeth, viz. By the Authority of God Omnipotent, of the Son, and of the Holy Ghost, etc. We Excommunicate, anathematise, and sequester from our Holy Mother the Church, all those, who henceforth knowingly and maliciously deprive and spoil Churches of their right, and all those that shall by any art or wit rashly violate, diminish, or alter secretly or openly, in Deed, Word, or Counsel, those Ecclesiastical Liberties, etc. Granted by our Lord the King, to the Archbishops, Bishops, Prelates, etc. For everlasting memory whereof, we have hereunto put our Seal. After which, all throwing down their Tapers, extinguished and smoking, they all said, 
Vid. The Present State of Eng. p. 29.  So let all that shall go against this Curse, be extinct and stink in Hell, And Ethelwolphus, the second sole Monarch among the Saxon on Kings, having by advice of his Nobles, granted for ever to God and the Church, both the Tithe of all Goods, and the tenth part of all the Lands of England, free from all secular Service, Taxes, or Impositions whatsoever, 
vid. the Charter of Donation in Ingulphus and other Authors.  concludes the said Grant or Charter of Donation in these words, viz. Qui augere voluerit nostram Donationem, augeat Omnipotens Deus dies ejus prosperos; si quis vero mutare vel minuere praesumpserit, noscat se ad Tribunal Christi rationem redditurum.  
(8. Dr. Heylyn in his Ecclesia Restaurata relates a remarkable passage touching a sad judgement, 
pag. 224, 225.  that in the time of Queen Mary befell Buckly Bishop of Bangor, An. 1541. for the Sacrilegious havoc he made of the Lands and Patrimony of that Church, who not content to alienate the Lands, and weaken the Estate thereof, resolved to rob it also of its Bells (for fear perhaps of having any knell rung out at the church's Funeral;) and not content to sell the Bells which were five in number, he would needs satisfy himself with seeing them conveyed on Shipboard, and had scarce given himself that satisfaction, but was immediately struck blind, and so continued from that time to the day of his death:   

CHAP. XXXIX.  
Of Simony.  

1. The Definition and description of Simony; the penalties thereof.  
2. The difference between Simoniacus and Simoniace Promotus; the latitude of that word Simony.  
3. How the anwal value of the Benefice is computable upon the Forfeiture by reason of Simony.  
4. Whether a Clerk Simoniacally presented, but not privy to the Simony, be disabled for that turn to be presented by the King to the same Church?  
5. The diversifications of Simoniacal Contracts, or the various ways of committing Simony.  
6. An Obligation to present one upon condition of resignation, may not be Simony.  
7. To promise one a Sum of Money to bestow his endeavour to procure one to be presented to a Benefice, is a Simoniacal Contract.  
8. Several ways of contracting, obliging, and agreeing, which will amount to Simony.  
9 A Clerk may oblige to his Patron to pay a Sum yearly, and yet no Simony.  
10. The Plea of Simony is a good bar to the parson's demand of Tithes.  
11. Whether the father's free Covenant with his Son in Law, upon the Marriage of his Daughter to present him to such a Living when it falls, be Simony?  
12. Whether a SimoniacalVsurper shall prejudice the rightful Patron, by giving the King the presentation.  
13. Whether an Incumbent that is in by Simony, may after a General Pardon be removed.  
14. The grand Case of Calvert and Kitching at the Common Law touching Simony.  
15. To convey a corrupt gift by an innocent hand, will not excuse it from being Simony.  
16. The King's Case against the Archbishop of Canterbury, Sir John Hall, and Richard Clark touching Simony.  
17. The Proof of Simony in a Parson is good to harr him of Tithes.  
18. A patron's Presentation upon the Presentees Obligation to make a Resignation within Three months after the Patron so please, may amount to Simony within the Statute of 21 Eliz. cap. 16.  
19 A corrupt Contract for an Advowson may make the subsequent incumbent Simoniacal.  
20. To plead a Simoniacal Contract against a Bond, it not so appearing, is no admissable Plea.  
21. Masters of Chancery, why so called, and what they were anciently.  
22. Prihibition to the High Commissioners, that would have put a Parson to his Oath touching Simony.  
23. In what Cases (by reason of Simony) the Patron may present after Six months; and the Church said to be full as to one, not to another.  
24. The injunction of King Ed. 6. against Simony.  
25. The form of the Oath of Simony.  
26. A Simoniacal Contract a good plea in bar of Tithes.  
27. A further description in Law of the difference between Simoniacus, and Simoniace Promotus.  
28. The Simoniace Promotus, though ignorant of the Simony, yet is deprivable in the Ecclesiastical Court.  
29. A Simoniacal Contract, to which neither the Incumbent nor the Patron are privy, may yet be Simony within the Statute of 31 Eliz.  
30. Simony in its utmost latitude is properly cognizable in the Ecclesiastical Court.  
31. Simony worse than Felony; A Bond or Obligation good, though entered into upon a Simoniacal Contract.  
32. Whether a Parson outsed for Simony, may be after admitted to the same Benefice by the King's presentation.  
33. A Person Simoniace promotus, and ousted, is by the express words of the Statute disabled to accept the same Benefice.  
34. Where Simony is pleaded in bar of Tithes, the Ecclesiastical Court shall take cognizance, and no Prohibition lies.  
35. Whether the Father may buy the next avoidance, and present his Son; no Simony to buy an Advowson.  
36. To procure a Man (in consideration of Marriage) to be presented to a Benefice, is Simony.  
37. Four observations on the Statute of 31 Eliz. cap. 6. by the Lord Coke.  
38. The extent of the words (Present or Collate) in the said Statute, also the diversity in Law between a Presentation made by a Rightful Patron and an Usurper.  
39 What punishment by the Canon Law in case of Simony; and the strange conceit of Rebuffus touching the same.  
40. The reasons why it hath its denomination from Simon Magus; how many ways it may be committed according to the Canon Law.   
(1.) SIMONY (from Simon Magus, as Thomas Aquinas and others conceive, Tho. Aquin. 20. 2.ae. q. 100 art. 1. & 40.) is according to Panormitan's definition thereof,) studiosa voluntas emendi vel vendendi aliquid Spirituale, vel Spirituali annexum, opere subsecuto, Panor c. Nemo extra, etc. Or it may be described thus, 
Simonia est vox Ecclesiastica, à Simone illo Mago deducta, qui donum Spiritus Sancti pecuniis emi pura vit.  viz. 
Injustum est illa vendere, quae gratis distribui debent.  Simony is when any person is presented or collated to any Benefice with Cure of Souls, Dignity, Prebend, or Living Ecclesiastical, etc. or hath any such given or bestowed on him, for or in respect of any Sum of Money, reward, payment, gift, profit, or benefit directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant or other assurance for any Sum of Money, reward, payment, gift, profit or benefit whatsoever, directly or indirectly, or for or in respect of any such corrupt cause or consideration; and every Presentation, Collation, and gift, as also every Admission, Investure, and Induction thereupon is by the Statute utterly void 
c Stat. 31. Eliz. c. 6. , and whereby the King his Heirs and Successors for that one turn only shall present, collate, etc. And every person so giving or taking any such Sum of Money, etc. or taking or making any such promise, etc. doth forfeit and lose the double value of one years' profit of every such Benefice. Moreover, the person so corruptly taking any such Benefice is thereupon and from thenceforth adjudged a person disabled in Law to hold and enjoy the same Benefice 
d Stat. ibid. . The like penalty of the said double value doth he incur, who for any Sum of Money, reward, etc. directly or indirectly (other than the Lawful Fees) or for or by reason of any promise, etc. doth admit, institute, install, induct any person to, or in any Benefice with Cure, etc. Likewise, if any Incumbent of any such Benefice shall corruptly resign or exchange the same, or for or in respect thereof shall corruptly take, directly or indirectly, any pension, sum of money, or benefit whatever, in such case both the giver and taker corruptly as aforesaid, shall forfeit double the value of the sum so given, taken, or had, whereof the one Moiety to the King, etc. the other to him that shall sue for the same in any Court of Record 
e ibid. . In which Statute of 31 Eliz. there is a Proviso, that the censures Ecclesiastical shall not be restrained by any of the premises therein contained.  
(2.) They that Simoniacally buy Ecclesiastical live are compared to Simon Magus, and they that sell them to Gehazi the Servant of Elisha 
f 2 Kin. 5. 20. etc.  if a person be possessed of an Ecclesiastical Living by such Simony as whereunto he was not privy, be is said to be in only Simoniace: but if he be in any corrupt and Simoniacal Contract, to which himself is a party, and was privy and consenting thereunto, in that case he is Simonaicus; both which are inhibited by the canon's Ecclesiastical or Provincial Constitutions, as also are the said corrupt and Simonaical selling as well as buying Ecclesiastical live, Lindw. e. Nulli liceat Ecclesiam etc. Quia plerunq, and that under penalties greater than the Temporal Laws did then, or now will allow of. And although by Simony in the vulgar acceptation of the word, is commonly understood such corrupt Contract for Ecclesiastical live as aforesaid, yet it hath a more extensive signification and that is a more proper sense, which is by corrupt Ordinations of Ministers, or for undue Licences to Preach; for prevention whereof it is provided in the Statute aforesaid 
h Dict. St. 31 Eliz. , that if any person shall receive or take any Money, Fee, Reward, or any other profit directly or indirectly; 
Universas promissiones & pactiones Simoniacas penitus revocamus, & eas in posterum fieri districtius in hibemus.— Constit. Otho●on. cap. quia p●erumque  or any Promise, Agreement, Covenant, Bond, or other assurance thereof (Lawful Fees excepted) for or to procure the Ordaining or Making of any Minister, etc. Or giving any Order and licence to Preach, shall forfeit Forty shillings, and the Minister so made Ten pound, beside the loss of any Benefice, Living, or other Ecclesiastical promotion after Induction, that any such Minister shall within Seven years' next after such corrupt entering into the Ministry accept and take; the one half of which Forfeitures do go to the King, etc. the other to the Informer, etc. And the Patron in that case may present, etc. as if the party so inducted were naturally dead.  
(3.) The forfeiture of the double value of one years' profit of the Church by way of penalty, as is beforementioned, is not to be computed only according to the valuation in the King's Books in the First-fruit Office, but according to the just and full annual value of the Church 
i Co. 3. Inst. 154. . This double value shall be accounted according to the very or true value, as the same may be let, and shall be tried by a Jury, and not according to the extent, or taxation of the Church. Co. par. 3. Inst. cap. 71. And albeit the Clerk be not privy to the Simoniack Contract, yet it seems the Patron shall pro hac vice lose his Presentation 
k C●. 12. 74. . But the Title of the rightful, and uncorrupt Patron shall not be sorscited or prejudiced by the Simoniacal Contract of an Usurper, albeit the Clerk be by his presentation admitted, instituted and inducted, nor entitle the King to present.  
(4.) The Church, notwithstanding the Admission, Institution, and Induction, becomes void, whether the Clerk presented were a party or privy to the corrupt and Simoniacal Contract or not; But Sir Simon Degee in his Parson's Counsellor puts the material Question, viz. Whether the Clerk that is presented upon a Simoniacal Contract, to which he is neither party nor privy, be disabled for that turn to be presented by the King to that viz. the same Church? In order to the resolution whereof he acquaints us with a Case reported, wherein it was adjudged, that if a Clerk were presented upon a Simoniacal Contract, to which he was neither party nor privy, that yet notwithstanding it was a perpetual disability upon that Clerk as to that Church or Living 
l Pasck. 17. Jac. B. R. Case fowls verse. Lapthorne. vid. the Parson. Counsellor. par. 1. cap. 5.  The like in another Case, where B. (the Church being void) agreed with the Patron to give him a certain Sum of Money for the Presentation; B. presented C. who knew nothing of the Simoniacal Contract till after his Induction; In this Case it seemed by Warburton Justice, that C. was disabled quoad hanc Ecclesiam 
m Mich. 42. and 43. Eliz. B. R. Case Baker and Roger, Cro. El. 788. . In which Case it was clear, that the grant of the Presentation during the vacancy was merely void; that B. presented as an Usurper; that C. was in by the corrupt Contract; and that were it not for the same, the Patron would not have suffered the Usurpation. In further confirmation hereof it is also reported to us that Sir Edward Coke affirmed it hath been adjudged, that if a Church be void, and a Stranger contracts for a Sum of Money to present one who is not privy to the Agreement, that notwithstanding the Incumbent coming in by the Simoniacal Contract, is a person disabled to enjoy that Benefice, although he obtain a new presentation from the King; for that the Statute as to that Living, hath disabled him during Life 
n Case of the King and the Bishop of Norwich, Cole and S●cker. Cro. Jac. 385. Bulstr. 3. 92. . Notwithstanding all which Premises, Sir Edward Coke in his Comment upon the said Statute of 31 Eliz. asserts it to have been adjudged in the forecited Case of Baker and Rogers, that where the Presentee is not privy nor consenting to any such corrupt Contract, there (because it is no Simony in him) he shall not be adjudged a disabled person within the said Act, for the words of the Statute are (And the person so corruptly giving, etc.) And so (says he) it was resolved. Mich. 13. Jac. Where the Presentee is not privy nor consenting to any corrupt Contract, he shall not be adjudged a disabled person within the Act because it is no Simony in him— Coke Inst. par. 3. cap. 71. 
o Co. 3. Inst. 154. cap. 71. . Also it was so resolved in Doctor Hutchinsons' Case by the whole Court, viz. That if a Clerk be presented upon a corrupt Contract within the said Statute, although he be not privy thereunto, yet his presentation, admission, and induction are all void within the Letter of that Statute, but not within the clause of disability within the same Statute 
p Co. 12. 101. So was the Opinion of all the Judges of sergeants Inn in Fleetstreet. Mich. 8 Jac. Parsons Cons. ubi supra. .  
(5.) The Contracts which are commonly held corrupt and Simoniacal, may be diversified almost into as many kinds as transferences and proprietary negotiations are capable of: but those which have been most in practice (as appears by the Cases reported in the Law) have been by way of unlawful purchasing the next Advowson, by Exchanges, by Resignation, Bonds, by Matrimonial compacts, by contracts remote and concealed from the Presentee, by Obligations of an indirect nature, and the like. To the purposes aforesaid it hath been held Simony for a Parson to promise his Patron a Lease of his Tithes at such a Rent, in case he would present another Parson into his Benefice, with whom he was to exchange, albeit that other was not privy to the Contract, he making the Lease after 
q Hill. 16. Jac. rot. 667. c. B. per grant and Bowdens Case. . It was likewise held Simony for a Father to present his Son by virtue of a purchase of the next Advowson, which he made in the presence of his Son, a Clerk, when the Incumbent was not like to live by reason of a Sickness, whereof he soon after died 
r Case Smith vers. Shelburne. More 916. Cro. Eliz. 685. . Otherwise, in case the purchase had been made in the absence of the Son, as is hereafter mentioned 
s ibid. & infra eod. Noy Rep. . But per Hutt. it was held Simony to purchase the next Advowson, the Incumbent being sick 
t Case Sheldon vers. Brett. Winch. 63. . The like in Winchcombes Case against the Bishop of Winchester and Puleston, a Case hereafter often Margined on several accounts, where it was held Simony in one Say, who was presented upon a Contract which he made with the Patron (the Incumbent being then sick) for Ninety pound to present him when the Church should be void 
u Hob. 165. vid. Parson's Counsellor. par. 1. c. 5. . And as to Resignationbonds, Sir Simon Degge affirms, That in the case of Jones and Laurence the sense of the Court was, that if a Man be preparing his Son for the Clergy, and have a Living in his disposal, which falls void before his Son is capable thereof, he may Lawfully take a Bond of such person as he shall present, to resign when his Son becomes capable of the the Living; otherwise, in case the Patron take a Bond absolutely to resign upon request without any such or the like cause; as for avoidance of Pluralities, nonresidence, or other such reasonable design 
w 8 Jac. Case. Jones and Laurence. Cro. 248. 274. Pars. Couns. ibid. . The like you have in Babbington and Wood's Case hereafter mentioned. So that it seems Bonds and Obligations given and taken upon just and honest grounds to resign are not in themselves Simoniacal; Otherwise, where there's is corruption in the case, accompanied with some subsequent Act in pursuance thereof. And although presentations made upon Simoniacal Bonds and Obligations are void in Law, yet such Bonds themselves, though corrupt and Simoniacal are not made void by the Statute of 31 Eliz. 
x Co. 3 Inst. 153. Noy. 72. .  
(6. B. brought Action against C. upon an Obligation, The condition whereof was, that whereas the Plaintiff did intent, and was about to present the Defendant to the Benefice of Stow, if the Defendant at the request of the Plaintiff should resign the same to the hands of the Bishop of London, than the Obligation to he void. The Defendant demanded Oyer, and demurred, and adjudged for the Plaintiff, for the resignation might be upon a good intention to prevent pluralities, or some other cause, and it shall not be intended Simony, if it be not specially pleaded and averred; and Mich. 37. and 38. Eliz. Between Jones and Laurence it was adjudged accordingly, and affirmed an Error, which the Court viewed, and thereupon Judgement was given for the Plaintiff 
a Hill. 5. Car. B. R. Case Babinglon verse. Caleb wood Jones Rep. .  
(7.) The Plaintiff declared, that the Rectory of St. Peter's infra Turrim London was void, and that the Defendant in consideration that the Plaintiff would bestow his labour and endeavour to cause or procure him to be Rector of the said Rectory, promised to give him Twenty pounds; and that after the said Plaintiff procured him to be Rector by the King's Commission, and notwithstanding that he had required him to pay the said Twenty pounds, etc. and thereupon he brought his Action upon the Case in the Court of the Tower of London, and upon Non Assumpsit, it was found for the Plaintiff, and Judgement was there given, upon which the Defendant brought Error, and una voce all agreed that the Judgement was erroneous, for the consideration was Simoniacal and against Law, and not a good consideration, therefore the Assumpsit was not good, the Judgement was reversed; the attorney said, that that Court was a Court-baron, as appears by a Record in the time of King Henry the Sixth 
b Pasch. 10. Car. B. R. Todderidge verse. Mackalley. Jone's Rep. .  
(8.) If A. be obliged to present B. etc. and he presents by Simony, yet the obligation is forfeited 
c per Hob Case Winchcomb verse. Pulleston. Noy Rep. . Or if one contract with the patron's Wife to be presented for Money, and is accordingly presented by her Husband, it is Simony within the Stat. of 31 Eliz. and makes the presentation void 
d Mich. 13. Jac. B. R. Case of the K. vers. Bishop of Norwich. Rolls Rep. . For the contract of the Wife is the contract of the Husband 
e 27 H. 8. 26. . Likewise if the Patron present one to the Advowson, having taken an Obligation of the Presentee, that he shall resign when the Obligee will after Three months' warning, this is Simony within the Stat. of 21 Eliz. cap. 16. per Curiam 
f Trin. 15: Jac. C. B. Rot. 1052. Sir J●. Paschal verse. Clark. Noy. Rep●. . Also if one promises to a Man that hath a manor with an Advowson appendent, that if he will present him etc. after the then Incumbents death, he will give him such a certain Sum of Money, and the other agree thereto, and that by agreement between them the next avoidance shall be granted to B, etc. who after the then Incumbents death presents accordingly; this is Simony because there was a corrupt Contract for the Advowson 
g Case Winchcomb verse. Vullesto● Noy Rep. . For although the next avoidance may be bought and sold bona fide without Simony, yet if it be granted to one to perform a corrupt Contract for the same, it is otherwise 
h ibid. . But if the Father purchase the next avoidance, and after the Incumbents death presents his Son, this is not Simony 
i adjudge. 42. and 43. Eliz. 〈◊〉 & 〈◊〉 Case. Noy Rep. . Yet by Hob. Chief Justice it was held, that if in the grant of the next avoidance it appears that it was to the intent to present his Son or his Kinsman, and it was done accordingly, it is Simony 
k Noy ibid. . Likewise if a man's Friend promises the Grantee of the next avoidance a certain Sum of Money, and so much certain per Annum, if he will present B. to the Church, Quando, etc. and B. not knowing any thing of the Contract be presented accordingly, this is Simony 
l 7 Jac. Calvert vers. Parkinson in Cam. Scaccar. Noy Rep. , For if a Stranger contract with the Patron Simonaically, it makes the presentation void 
m Mic. 13 Jac. B. R. Case of the K. vers. Bishop of Norwich Roll. .  
(9) A Patron took an Obligation of the Clerk whom he presented, that he should pay Ten pounds yearly to the Son of the last Incumbent, so long as he should be a Student in Cambridge unpreferred; this is not Simony; otherwise, if it had been to have paid it to the Patrons Son. per Cur. 
n adjudge. in baker's Case. verse. M●undford Noy's Rep. . An Obligation was made by a Presentee to a Patron to pay Five pounds per An. to the late Incumbents Wife and Children; the Parson kept and enjoyed the Parsonage, notwithstanding great opposition to the contrary 
o E. of Suffex Case vouched by Forster Justice in dict. Baker's Case. Noy. Rep. .  
(10.) A Parson preferred his Bill for Tithes, the Parishioner pleaded that he was presented by corruption, etc. and by Simony, and a Prohibition was granted, notwithstanding the Parson pleaded pardon of the Simony by the King; and it seemed, that it was now triable by the Common Law 
p 10 Eliz. Doctor Hutchinsons' Case cited by Warburton and Hutton. Noy Rep. . The Church may be full or void in effect, when there is a Simoniacal Incumbent; yet to say the Church was full for Six Months is no plea, when he was in by Simony; For a Quare Impedit may be had by the rightful Patron after the Six Months against the Incumbent of an usurper, that is in by Simony 
q Dict. Cas. Winchcomb verse. Pulleston. . And the death of a Simoniacal Incumbent doth not hinder but that the King may present, for the Church was never full as to the King, and that turn is presented to the King by force of the Statute 
r ibid. .  
(11.) In the Stat. of 31 Eliiz. there is no word of Simony, for by that means then the Common Law would have been Judge, what should have been Simony and what not 
s Noy. Winchcombs' Case. ; by which Law the Simoniack is perpetually disabled 
t dict. Case of the King verse. the Bishop of N●rwich. Roll. Rep. . And a Covenant to present such a one, made under any consideration whatever, be it of Marriage or the like, may be Simoniacal; But if a Father in Law upon the Marriage of his Daughter, do only voluntarily and without any consideration, Covenant with his Son in Law, that when such a Church, which is in his Gift falls void, he will present him to it; It hath been held, that this is no Simony within the said Statute 
u Cro. Car. 425. .  
(12.) A Simoniacal Usurper presenting shall not prejudice the rightful Patron, by giving the King the presentation 
w Hob. 167. . The proof of Simony will avoid an Action of Tithes commenced by a Simoniack Parson 
x Pasch 17. Jac. Case of Sir Jo. Bowse vers. Wright. 167, 168, 177. ; who dying in possession of the Church, the King loses not his presentation 
y Hob. ibid. , because the Church was not full of an Incumbent; but remains void though the Simony or Penalty thereof were pardoned (y]. Lastly, all corrupt resignations and exchanges of Ecclesiastical live, are punishable with the forfeiture of double the Sum given and received, both in Giver and Taker, by the said Statute, but it seems this works no avoidance or disability in the public person.  
(13.) The Patron of an Advowson before the Statute of 31. Eliz. for Simony, doth sell proximam Advocationem for a sum of money to one Smith, and he sells this to Smith the Incumbent: After which comes the general Pardon of the Queen, whereby the punishment of Smith the Incumbent is pardoned, and of Smith the Patron also. If the Incumbent may be removed was the Question: Williams said that the Doctors of the Civil Law informed him, That the Law Spiritual was, that for Simony the Patron lost his Presentation, and the Ordinary shall present, and if he present not within six montehs, than the Metropolitan, and then the King. Spurling Serjeant, This punishment cannot discharge the Forfeiture, although it dischargeth the punishment. Glanvil contra; and said that this point was in question when the Lord Keeper was attorney, and then both of them consulted thereupon, and they made this diversity, viz. Between a thing void and voidable, and for Simony the Church is not void until Sentence Declaratory, and therefore they held that by the Pardon before the Sentence all is pardoned, as where a man commits Felony, and before Conviction the King pardons him, by this Pardon the Lord shall lose his Escheat, for the Lord can have no Escheat before there be an Attainder, but that is prevented before by the Pardon: And so here this Pardon prevents the Sentence Declaratory, and so no title can accrue to the Ordinary. Walmsley contra: if Patron be charged by the Sentence, he may plead the Pardon. But if a Quare Impedit be brought by a third Person, the Pardon of the King shall be no bar to him, for the title appears not to him, but only the punishment. Anderson, they may proceed to Sentence Declaratory, notwithstanding the Pardon; for the Pardon is of the punishment, but the Sentence extends not to that, but only to declare that the Church is void. Glanvile, in 16. Eliz. a man was deprived of his Benefice for Incontinency, and after he was pardoned and restored. Walmsley, I doubt much whether the King can pardon Simony. And Williams said, that the Proctors of the Civil Law said, that neither the Pope nor the King could pardon Simony quoad culpam, but only quoad poenam they may: And the Court at last said, that if the parties would not demur, they would hear the Doctors on this matter 
z Hill. 41. Eliz. C. B. smith's Case. Owen's Rep. .  
(14.) In Calverts Case against kitchen and Parkinson in the Exchequer, where K. not knowing of any Simoniacal agreement was Presented, Instituted, and Inducted to the Church of D. and this after the Statute of 31. Eliz. cap. 6. And this Presentation belonging to the Queen by reason of this Presentation for Simony by force of the said Statute, the Queen presented one B. and before that B. was Admitted and Inducted the Queen died; whereupon the King presented C. without any recital or mention of the Presentation made by the Queen, and without any revocation actually made of the said first Presentation, and thereupon C. is Admitted and Instituted; and for Tithes as Parson he brought Trespass. In this Case one of the points in Question was, if within the said Statute here be Simony in the Patron, and not in the Parson, if this aught to prejudice the Parson or not? In this point Hitchcock conceived, that although the Presentee in this Case, was not party to this corrupt agreement, yet he shall be prejudiced by it, although not so prejudiced thereby, but that he may be capable to be presented again to the same Benefice, but hac vice the presentation of him is void; for as Littleton saith, the Presentee ought to accept the Parsonage subject to such charges as the Patron pleaseth, who in the time of vacation hath power to charge it, and so by his Act had made it subject to the Forfeiture, and therefore the person who cometh under him shall be prejudiced, etc. Damport to the contrary; The Patron and a stranger corruptly agree to present K. whereupon he is presented; If this shall be void against K. is the question. To this he said that at the Common Law, if one be Simoniacally presented, yet this is not void until the Presentee be deprived; and if before the said Statute such a corrupt Presentation had been made, the Incumbent and Ordinary being free, than no Presentation should ensue; and he vouched the saying of Lindwood to be accordingly; but if money be given by the friends of the Presentee, and after the King had notice thereof, and Assent, than it is not punishable, but pardonable at the discretion of the King; and now by him the Statute provides no punishment for the Parson, when the Patron only consents to the Simony; for he observed that after the said stat. of 31. Eliz. had appointed a punishment for the Patron, then in the last part of this Branch, the words are, The persons so corruptly taking, etc. shall be incapable of the Benefice aforesaid; and so it seemeth, that the intent of the Statute is not to punish any party, but he that is to the Simony, and this is also explained to be so, by other clauses in the Statute, for another clause inflicts punishment upon the Ordinary, if there be any corruption in him, and another clause inflicts punishment upon him who is party to a corrupt Resignation, and so in all the clauses, those only who are partakers of the crime shall be punished, etc. And in this Case was no agreement assented unto by the Parson; and this diversity also seems to be good, that if A. hath the Presentation, and B. the Nomination to a Benefice, and the presenter upon a corrupt agreement, makes a presentation unknown to the Nominator, here the Nominator shall not be prejudiced within this Statute, etc. In this Case Bromley Baron declared his opinion, that the intent of the Statute was to eradicate all manner of Simonies; and therefore the words are not if any man give money to be presented, but they are If any present for money, and the jurors here found 20 l. to be given, and nothing for what it was given, or to whom it was given, for if money be the meed, a Presentation is void, and therefore if I. S. be patron of the Church of D. which is void, and a stranger saith to me, procure the Presentation for A. and you shall have 100 l. and he procured A. to be Presented; here if the Patron had notice of the money given to me, this Presentation is void, but otherwise not: And in this Case without notice of the Parson, the Admission and all that ensued thereupon is void, by reason of the Simony in the Patron; and it is void as to the Parson also; and if in this Case we are not within the words of the Statute, yet we are within the intent clearly, etc. And Panormitan saith, That Simonia est studiosa voluntas emendi vel vendendi aliquid spirituale, vel spirituali annexum cum opere subsequent. Altham Baron was of the same opinion, and said that the words of the Statute are, That if a Presentation be made for money, it shall be void, and that the King may present that turn; and therefore the want of privity in the Incumbent is nothing to the purpose, as to the avoiding of the Benefice; but his want of privity availeth to excuse him of being Simoniacus, yet he is Simoniace Promotus, and therefore the Presentation is void, and the King shall have it by the express words of the Statute; and therefore as it seems, if in this Statute there had been an express saving of the Interest of the Incumbent, by reason of his innocency, yet such a saving of Interest had been void and repugnant, in respect that it was expressly given to the King before, as it is in Nichols Case in Plowden upon the Stat. of 1. H. 7. etc. And to prove that by the Simony in the Patron that the Parson shall be prejudiced, he vouched 42. E. 3. foe 2.— Snig Baron concurred in opinion with the former, and said that as to the point of Simony by the Civil Law, it was punishable by Deprivation, and the guilt of the Patron should prejudice the Parson, as to matter of commodity in the Parsonage; and at the Common Law if the Parson will plead such Presentation, he should be prejudiced, and here by the Incumbency the words of the Statute will not be satisfied, etc. Also it seemeth that if I. S. hath an Adowson, and A. purchase the next avoidance to the intent to present B. and the Church becomes void, and A. presents B. this is Simony by averment, as by good pleading the Presentation of B. shall be adjudged void, etc. Tanfield accordingly, as this Case is, here is Simony by the Civil Law, and the party had his Benefice by Simony, although he be not cognusant thereof. Secondly, admit here was not Simony by the intendment of the Civil Law, yet the Statute hath made an avoidance of the Benefice in this Case, although it be not Simony, for the Statute speaks not one word of Simony throughout the Act, and yet by express words it doth avoid such Presentations as this is; and as to the Civil Law such Benefice is to be made void by Sentence Declaratory, but it is not void ipso facto, as it seems in the Case where a common person was consenting to the Simony, but the text of the Civil Law says expressly, that the Church ought not to be filled Corruptive, or by corruption, and the Civil Law expresseth such a person as in this Case by Simoniace promotus, and calls him who is Particeps Criminis, Simoniacus, and he who is Simoniacus, is by the Civil Law deprived not only of the Benefice ipso facto, but also is deprived to be a Minister, and adjudged guilty, in culpa & poena. Petrus Benefieldus saith, that if a Friend give money to a Patron, to make a promise to him etc. and the Incumbent pays it, such an Incumbent is Simoniacus by the Civil Law; and so if the Incumbent pay the money not knowing it till after the induction, yet he is Simoniacus; and by him if a Friend give money, and the Parson is thereupon presented, though the Parson knew not of the money given, yet he shall be deprived of the Benefice; and this difference was certified by Anderson and Gawdy to the Council-Table upon a Reference made to them by the King, touching the filling of Benefices by corrupt means; And the Statute of purpose forbears to use the word Simony, for avoiding of nice construction in the Civil Law as to that word, and therefore the makers of the Act set down plainly the words of the Statute, that if any shall be promoted for money, etc. So that by these words it is not material from whom the money comes; and then in such Cases for the avoiding of all such grand Offences a liberal Construction ought to be made, as hath been used in such cases, etc. for which and many other reasons mentioned in this Report, he commanded judgement to be entered for the Plaintiff 
a Trin. 7. Jac. in the Exchequer. C●lvert against kitchen and Parkinson. and kitchen against Calvert. Lanes Rep. .  
(15. Sr. George Cary being seized of an Advowson, granted the next Avoidance to his second Son, and died; and after the Son corruptly agreed with I. S. to procure the said I. S. to be presented to this Benefice, and the second Brother knowing thereof; it was agreed that for the perfecting of the agreement, the second Brother should surrender his Grant and Interest to the elder Brother, which elder Brother not knowing of the said corrupt agreement, presented the said I. S. who was Instituted, etc. all shall be void, for he is here presented by reason of this corrupt agreement between the Patron who then was, and the Parson, and the elder Brother was only used to convey a bad gift by a good hand, and all had reference to the corrupt agreement, with the Assent of the Patron who then was 
b gloss and Pompoyes Case vouched by Damport in Calverts Case against Kitchen. Lanes Rep. .  
(16.) The King brought a Quare Impedit against the Archbishop of Canterbury, Sr. John Hall, and Richard Clark, for the Church of M. and declares that Richard White was seized of the manor, to which the Advowson belonged. And the 6. Jac. by Indenture, he covenanted to stand seized to the use of himself and his Wife for their lives, and to the heirs of Richard White. And after White presents one Boynton, and dies, and his Wife marries with Sr. John Hall, who the first of June. 6. Jac. by deed grants proximam Adocationem to two, to this intent, that he might receive of such a Parson, that he presented, all money as should be agreed between Grantor and Grantee: And that this was done Bointon lying in extremis. And then the 26. Jan. 16. Jac. there was a corrupt agreement between Sr. John Hall and one of the Grantees, that for 200 l. to be paid by the Clerk blundel, that the other Grantee should present him. And the first of February Blundel pays Sr. John Hall the money, and the second day he was Presented, Instituted and Inducted accordingly. And that upon this it appertained to the King to present: The Bishop pleads but as Ordinary: Sr. John Hall makes a title, and traverses the corrupt agreement. The Incumbent pleads by Protestation that there was not any corrupt agreement, as it was alleged, and not answers whether the money were paid or not; but that he is Parson Imparsonee of the Presentment of— But 16. Jac. after such an agreement (scil.) 17. Febr. he was presented by the Letters Patents of the King to his Church, 
Trin. 4. Car. C. B.  and never answers to the Simony. and it was held by the Court to be naught; and only pleaded to hinder the Execution before the Justices of Assize, if the trial went against the Patron 
c The King against the Archbishop of Canterbury Hetley's Rep. . And further in that Case between Hall and blundel it was said by Davenport, that this Parson being presented by simony is disabled to this Church for ever, and cannot be presented to this Church again; as it was adjudged in the Lord Windsor's Case. But it was said by Richardson if he had said, absque hoc, That he was in ex Presentatione of etc. it had been good enough which was granted. Henden, two exceptions had been taken. (1.) That the Incumbent doth not show what Estate or Interest the King had to present him; which doth not need, if the King brought a Quare Impedit, than it is a good answer to say, that he is in of his Presenting. But if it be brought by a stranger, than he ought to show the title in his Presentment. And he alleged the Statute of 25. E. 3. which enables the Incumbent to plead by Writ of the Law. 41. Eliz. There was a Quare Impedit brought for the Church of Danell; a presentation by the King was pleaded, without making a title, and it was admitted good. And in many Cases it is more safe not to make a title. (2.) Because that he pleaded a Presentation by the King he is disabled. As to that he said, that before he be convicted of Simony, he may be presented. But by Crook in sathers' Case, that if he be presented before conviction, yet it is a void Presentation. And it was so agreed by the Court, and they resolved the plea was nought, because he answers nothing to the Simony; for the Protestation is not any answer: wherefore judgement was given for the Plaintiff 
d Hall and Blundells case Hatley's Rep. .  
(17) F. Libels in the Ecclesiastical Court for Tithes, and a Prohibition was prayed upon a Suggestion that he came to the Church by Simony. By the Court, a Prohibition ought to be granted upon a surmise only, that he came to the Church by Simony. Then Honden shown, that it was found by verdict in the King's Bench, that he came in by Simony; And upon that verdict there was a Decree in the Court of Wards accordingly. And then the Court inclined to grant a Prohibition. And the Case here was, that F. being convicted of Simony, the King presents Clapthorn, who was Admitted Instituted, and Inducted: And afterwards he takes another Benefice above the value of 8 l. by which the other was void. Yet by the Assent of the Lord Windsor Patron, F. continued possession. And by Richardson, he cannot be any way removed until Lapse incur 
e fowler's Case. ibid. .  
(18.) It was said by the Court in Sr. John Paschall's Case against Clark upon evidence, that if the Patron present one to the Advowson, having taken an Obligation of the Presentee, that he shall resign when the Obligee will after three months' warning, that that is Simony within the Statute of 21. Eliz. cap. 16. 
f Trin. 15. Jac. C. B. rot. 2051. Sr. John Paschall verse. Clark. Noy's Rep. .  
(19 A. Scised of a manor with an Advowson appendent: S. comes to A. and promises that if he would present him, etc. after the death of the now Incumbent, he would give him Seventy pounds, to which he agreed. And upon that it was agreed between them, that the next avoidance shall be granted to B, etc. the Incumbent dies, B. presents S. who continues lacumbent from 27 Eliz. until the 7 th' of King James, Than A. grants the manor come pertinent. to Winchcomb in Fee, S. the Incumbent dies, 7 Jac. And the King presents Pulleston by the Title of Simony: and Winchcomb brought a Quare Impedit, and adjudged that it doth not lie. In which Case two points were resolved. (1.) That that is Simony; First, because there was a corrupt Contract for the Advowson: Note, that in the Stat. of 31 Eliz. there is not word of Simony; for by that means then the Common Law would have been Judge, what should have been Simony and what not. Secondly, although that the prochein Avoidance might be bought and sold bona fide, without Simony, yet it was so granted to B. to perform the corrupt Contract, 2 Jac. was vouched, that it the Father purchased the prochein Avoidance, and presents his Son after the death of the Incumbent, that is not Simony, and that it was accordingly judged in 42 and 43 Eliz. It was Smith and Shelborns Case. But by Hubbard, that if in the grant of the Prochein Avoidance it appears that it was to the intent to present his Son or his Kinsman, and it was done accordingly, that is Simony. In the 7th Jac. In the Exchequer Calvert against Parkinson. The cousin of C. being Clerk comes to the Grantee of the prochein Avodance, and promises him Twenty pounds, and Twenty pounds per an. if he will present C. to the Church quando, etc. C. not knowing any thing of the Contract, is presented accordingly. This is Simony. Fortiori in this Case where S. himself who was to be presented, was party to the first motion of the Contract for presentation. (2.) It was resolved, that the death of the Simoniacal Incumbent doth not hinder but that the King may well present, for the Church was never full as to the King, and that Turn is preserved to the King by force of the Statute, yet it seems the Church is so full that a Stranger may not present for usurpation; for it is not like 7 Rep. 28. where the King is to present by lapse. And there are many Cases wherein the Church may be full or void in effect, when there is a Simoniacal Incumbent. Hubbard said that if A. be obliged to present B, etc. and he presents by Simony, yet the Obligation is forfeited, etc. The rightful Patron may have a Quare Impedit after the Six months against the Incumbent of an usurper, that is in by Simony. And by the Court, to say the Church was full for Six months, is no plea, when he is in by Simony. Warburton and Hutton cited Doctor Hutchinsons' Case 10 Eliz. A Parson prefers his Bill for Tithes, the Parishioner pleads that he was presented by corruption, etc. and by Simony, and a prohibition was granted, notwithstanding that the Parson pleaded pardon of the Simony by the King, and it seemed that it was now triable by the Common Law. Note 7 H. 7. 37. and Mich. 40. and 41 Eliz. Gregory against Ouldham. In debt upon an Obligation to perform certain Covenants, which in truth were Simoniacal Contracts, and the Plaintiff recovered, for it was said that that obligation is collateral, and the Law does not at all look upon or take notice of the Simony, eo nomine, for it is not once named in the Statute, but only corrupt giving, etc. 
g winchcomb against Pulleston. Noy's Rep. vid. dict Cas. .  
(20.) In debt upon an obligation, it was said that it was made upon a Simoniacal contract for presentation to the Church, with the cure of Souls; and so it was for Simony. All that was averred the Court held to be matter debors, and not appeared within the Deed; and for that the Plaintiff had Judgement. For no such averment is given by the Statute 
h Gregory? verse. Olden. Noy 's Rep. . Note, the Statute doth not make the Bond, Promise, or Covenant void, but the Presentation. And so adjudged, Pasch. 40. Eliz. Rot. 1745. C. B. Case of Gregory against Oldbury. Co. Inst. par. 3. cap. 71.  
(21.) If an innocent Incumbent be in by a Simoniacal Contract, to which he was no way privy, he is not Simoniacus though Simoniace promotus; and as he is not Simoniacus, so neither Perjurus, for Simony seldom goes without some kind of Perjury. An Action was brought upon 5 Eliz. for Perjury before one of the Masters of Chancery, who had power to take an Oath. Adjudged Quod nihil cap. per breve. And the reason was, because he does not show that the Oath was in Court. By Whitlock they were called Masters of Chancery, 
Masters of Chancery, why so called.  because they were Priests and clergymen in ancient time: and that was the reason that the Lord Chancellor had the disposal of the petty Offices of the King, for the preferment of these Clerks: that was also the reason that they could not Marry until they were enabled by the Stat. etc. 
i Luther verse. Holland. Noy 's Rep. .  
(22.) Parson L. was convented before the High Commissioners, and they would put him to his Oath touching Simony (supposing it to be committed by him.) And a Prohibition was granted, that none shall be compelled to accuse himself upon his Oath; where he is to incur a temporal punishment at the Common Law, or a temporal loss as in that case of his Church: So for usury. Note Dyer 175. in the Margin. And Cook Chief Justice, vouched 10 Eliz. smith's Case, an attorney of that Court. The High Commissioners would put him to his Oath, for hearing Mass. And a Prohibition was granted: for by that he is to lose One hundred pounds by the Staute, and a Prohibition was now granted by the Court 
k Parson Letters Case against Sussex. Nay's Rep. .  
(23.) If a Stranger, having no Title, present per tort, to a Church (being void) Simoniacally, and Six months' pass, yet the true Patron may after present, for the Statute hath made such Presentation, Institution and Induction void, and so he is no Incumbent, nor is the Church full 
l Co. Lit. 120. . Likewise, if a Man be Presented, Instituted, and Inducted by Simony to a Church, although it be void as to the King, and as to the Parishioners, yet it is not void as to an usurper, for he that hath no right shall not present thereunto 
m winchcombs Case. Hob. rep. 227. .  
(24.) To avoid the detestable Sin of Simony, because buying and selling of Benefices is execrable before God; it is therefore ordained by the Injunctions of King Ed. 6. An. 1547. That all such persons as buy any Benefices or come to them by fraud or deceit, shall be deprived of such Benefices, and be made unable at any time after to receive any other Spiritual promotion. And such as do fell them, or by any colour do bestow them for their own gain or profit, shall lose the right and title of Patronage, and Presentment for that time, and the gift thereof for that vacation shall appertain to the King's Majesty 
n vid. Bishop's Sparrow. Collection of Artic. etc. pag. 9 .  
(25.) The Oath of Simony is as followeth, viz. I. A. B. do swear that I have made no Simoniacal Payment, 
The Oath of Simony.  Contract, or Promise, directly or indirectly by myself, or by any other to my knowledge, or with my consent, to any person or persons whatsoever for or concerning the procuring or obtaining of the Rectory or Vicarage of A. in the diocese of London. Nor will at any time hereafter perform or satisfy any such kind of payment, contract, or promise made by any other without my knowledge or consent. So help me God, etc.  
(26.) P Parson of R. in the County of W. sued for Tithes in the Ecclesiastical Court before the Ordinary, and the Defendant here pleads that the same Parson was presented upon a Simoniacal Contract, 
Penns Case. Brownl. Rep. par. 2.  and for that his Presentation, Admission, and Institution was void, by the Stat. of 31 Eliz. the Simony was for that it was agreed between the said Parson and another that was Brother to the Bishop of L. and C. who was Patron of the same Church; that if he should procure three several Grants of three several next Avoidances, to them severally granted, to surrender their said several Grants, and procure the said Bishop to present him when the Church became void (it being then full of an old Parson being mortally sick) that he would make to him a Lease of parcel of the Tithes of his Rectory: and the Brother of the said Bishop procured the said Grantees to surrender their several Grants accordingly (the Church being then full.) And also after when the Church became void, he procured the said Bishop to present him according to the first Contract, and then the said P. made a Lease to him of the Tenths, and after sued others of his Neighbours in the Ecclesiastical Court for Tithes, who pleaded the said Simoniacal Contract; and here Nicholas Serjeant suggested, that the Judges Ecclesiastical would not allow of this Plea there; but the Court would not give credit to this suggestion; but said, that if the Ecclesiastical Court make exposition of the Statute of 31 H. 8. against the intent of it, that then they would grant a Prohibition, or if they should deny to allow of this Plea; and for that advised him, that his Client might offer this Plea another time to them, and if they denied to grant that, they would grant a Prohibition.  
(27.) The Patron of a Benefice may be sued in the Ecclesiastical Court for presenting his Clerk (who is also inducted) by Simony, for the Statute of Simony takes not off the Ecclesiastical Jurisdiction from punishing the party pro salute animae 
o Hill. 11. Jac. B. R. Sr. Wil Bovers Case resolved. . And where the Parson is party or privy to the Simony, he shall be perpertually disabled. Also if money or other reward be given for the Presentation, be it with or without the agreement or knowledge of the Incumbent, yet it shall always disable him from enjoying that Church 
p Pasch. 17. Jac. B. R. Lapthornes Case. Bath vers. Potter Rol. Rep. par. 2. . In wilson's Case against Bradshaw it was said by Doderidge Justice, that Simony is a contract either with the Patron to present, or with the Ordinary to institute, and if it be not one of these it is not Simony by the Common Law; Simoniacus is he which makes such a contract or promise, and he is disabled to take any other Benefice, and shall be deprived of the Church in which he is: But Simoniace promotus, is he whose friend (without his privity or knowledge) gives money to the Patron or Ordinary for his Presentation or Institution, and he shall be deprived of the Benefice to which he is corruptly promoted, but not incapable of any other, nor of that, if he shall have it duly again; and every corrupt contract for aright to present, is Simony 
q Hill. 21. Jac. Rot. 1058. Wilson verse. Bradshaw. Rol. Rep. .  
(28.) In a Prohibition, the Case, A. seized of the Advowson of the Church of B. the Church being void: C. before the general pardon 39 Eliz. contracted with him for the Avoidance, who for 100 l. granted it to him; and he by colour of this Grant presented his Brother to the avoidance: This was held to be Simony in the Grantee the Incumbent, although he was not privy to the Simony at the first; and Simony was there defined to be Voluntas sive desiderium emendi vel ven dendi spiritualia vel spiritualibus adhaerentia vel anxa 
r Mich 42. & 43. Eliz. B. R. Baker and Rogers Case Cro. par. 1. . Or thus viz The Church being void, B. contracted with the Patron for 180 l. to have the Presentation, and thereupon presented W. his Brother, who knew nothing of the Simoniacal contract, till after his Induction, notwithstanding he was deprived in the Ecclesiastical Court, because he was Simoniace promotus; and it was held in this Case, that if an usurper present by Simony, the Clerk is punishable in the Ecclesiastical Court for the Simony, 
More. Case 1223.  although the Patron doth recover the Advowson and the Presentation.  
(29.) 
Mich. 13. Jac B. R. Cro. par. 2.  In the Case between the King and the Bishop of Norwich, and Saker, and Cole, It was said by Coke Chief Justice, that if a Church be void, and a stranger without the privity of the after-Incumbent, procures the Patron to present him upon a Simoniacal contract, although that the Alter-Incumbent be not privy to the contract, yet he comes in by Simony; and so it is, where the Incumbent makes Simoniacal contract with the Friend or Wife of the Patron, and the Patron knows not thereof, and the Incumbent be presented by the means of him with whom the Contract was made, it is Simony within the Statute of 31 Eliz. and the King shall present.  
(30.) A man who was presented by Simony, Libelled in the Ecclesiastical Court for Tithes. The Question was, whether the Simony should be tried in the Ecclesiastical Court, or by the Common Law; 
Close's Case. More's Rep.  the point was not resolved. Note there Simony is defined to be studiosa voluntas emendi vel vendendi Spiritualia vel Spiritualibus annexa— and it is either Mentalis vel Conventualis, of both which the Ecclesiastical Law may Judge, but the Temporal Court only of Conventual Simony.  
(31.) In Sir William boyer's Case for a Prohibition to the High Commission Court, for their examining there upon Oath in Case of Simony, 
Hill. 11. Jac. B. R. Bulsr. par. 2.  it was said by Coke Chief Justice, that Simony is worse than Felony, it is an enormous offence, if money be paid, for to present one to a Benefice, although it be not paid to the Patron, neither had he any knowledge of it, yet the Incumbent for this shall be avoided, and the Patron also shall lose his presentation pro hac vice. The Statute of 31 Eliz. cap. 6. is so strongly penned against the Incumbent, that if the Patron be privy unto it, he shall also be punished: an Action of Debt was brought in the C. B. the Defendant in Barr pleaded, that the same was entered for payment of money for Simony; yet the Bond was held good; and we are not to take any notice of Simony, this being punishable in the Ecclesiastical Court, and if they there meddle only pro salute Animae, they are not then to be prohibited; Otherwise it is, when they will there examine the person upon an Article tending to the Title of the Patronage, there, in such case a Prohibition lies.  
(32.) In case of the King against Zakar and others, It is said that if one be presented by Simony, 
Pasch. 13. Jac. B. R. Bulstr. par. 3.  and the same person afterwards obtain a presentation from the King, this is not good, for he is now a disabled person to take this Benefice, he hath a leprosy upon him by the Statute of 31 Eliz. cap. 6. Like unto that of Gehazi. And Coke Chief Justice there declared, that notwithstanding the King saith, that the said Incumbent shall still continue, yet the King shall have the next presentation.  
(33.) The Lord Windsor seized of an Advowson, granted the next avoidance thereof to Doctor G. the Church void, R. F. the Father of H. F. 
Pasch. 17. Jac. B. R. Booth and porter's Case. Cro. par. 1.  dealt with Doctor G. to permit the Lord Windsor to present H. F. who know not of the agreement, who was Presented, Instituted, and Inducted accordingly. Resolved, that this was Simony, and that the King was to present by the Statute of 31 Eliz. The King presented J. S. who was Instituted and Inducted. R. F. the Father sued J. S. before the High Commissioners for misdemeanours, and procured him to be deprived, and Ten days after procured a Grant of the next avoidance to J. N. and after the deprivation within Ten days procured the said J. N. to present the said H. F. etc. Resolved, that the said presentation of the said H. F. was merely void, and that he was a Person disabled by the express words of the Statute to accept of that Benefice.  
(34.) For a Prohibition upon a Suit for Tithes, supposing the Parson had come in by Simony, 
Risby and Wentworth's Case.— Cro. par. 1.  and thereby the Church void, and the Tithes not belonging to him: it was resolved by the Court, a Prohibition did not lie, for that Simony might more aptly be tried in the Ecclesiastical Court.  
(35.) The Incumbent of a Church being sick, the Father contracts with the Patron in the presence of his Son, 
Trin 41. Eliz. B. R. Smith and Shelbourne. Cro. par. 1. vid. More. Case. 1229.  for the next avoidance for the Son, and agreed to give him One hundred pounds. The Grant is made, the Incumbent died; the Son is Presented; Instituted, and Inducted; being sued for Simony in the Ecclesiastical Court, he prays a Prohibition, and alleges the General Pardon 39 Eliz. which is after the Institution and Induction, wherein Simony is not excepted: In this Case it was resolved. (1.) That although the Pardon discharges the punishment of Simony, yet he may be examined of it by the Ordinary, and deprived for it: But it was (2) Resolved in this Case, there was no Simony, for the Father might buy the next avoidance and present his Son, and it is not Simony in any to buy an Advowson; therefore the Prohibition was granted.  
(36.) In Debt upon an Obligation to perform Covenants. That T. 
Mich. 11. Car. B. R. Bryte and manning's Case. Cro. par. 3.  B. Son of W. B. should marry A. the Defendants Daughter: In consideration of which marriage, the Defendant amongst other Covenants, Covenanted, that he would procure the said T. B. to be Presented, Instituted, and Inducted into such a Benefice, upon the next avoidance of the Church, and the breach was assigned, for non performance of the said Covenant, in procuring him to be Admitted, Instituted, and Inducted: It was demurred to by the Defendant, because the Covenant is against Law, being a Simoniacal Agreement, and a Bond for performance thereof is not good. Resolved, it it had appeared to have been, that in consideration of the Marriage, of his Son, he would procure him to be Admitted and Instituted into such a Benefice, that had been a Simoniacal Contract, and had avoided the Obligation; but here this Covenant is not in consideration of the former Covenant, nor depending thereon, but it is a mere distinct Covenant of itself, and independent upon the former; and without a special averring or showing that it was a Simoniacal Contract, it shall not be intend, but it may be a Covenant upon a good consideration. And it was adjudged for the Plaintiff.  
(37.) In the forsaid Case of the King against Zakar alias Secker and others, it was said by Coke Chief Justice, that it is put for a Rule in Green's Case, 
Bulstr. ubi supra.  that if one presents Simaniace to a Church of the Kings, and the King afterwards presents, jure Simaniace, this is a void Presentment, because he hath mistaken his Title, but he ought to present jure Patronatus, not ratione Simoniace Presentatus. And as to the disability of a Simoniacal person by the State of 31 Eliz. cap. 6. Four things are to be observed upon this Statute. (1.) The Presentation to be void. (2.) The King to have this Presentment. (3.) A Fine to be imposed by way of Forfeiture. (4) The party presented to be utterly disabled. For where there is matter of Simony, if there be Fraud in the Incumbent, or if Money be given for the Presentation, though it be unknown to the Incumbent, to this let the Patron look; the Incumbent shall be removed. In this Case the whole Court agreed clearly in this, that the person party presented by Simony, the presentation is merely void, and that the so presented is utterly disabled for ever by the Statute of 31 Eliz. c. 6. to take the same Benefice, to which he is presented by Simony, and that he is incapable to have another presentation to the same Benefice.  
(38.) The words [Present or Collate] in the Stat. of 31 Eliz. c. 6. are not intended (says the Lord Coke) only where the person presenting or collating, 
Co. Inst. pa. 3. cap. 71.  hath right to present or collate, but also where any person or persons, Bodies politic or corporate, do usurp and have no Title to present or collate; and that so it was adjudged in case where the usurpation was to a Church of the King. Sed quando Praesentatio & Jus Poetronatus sunt Temporalia Quaeritur quomodo sit Simonia per donum pecuniae pro illis: Respondendum est, Quod Jus Patronatus & Praesentatio dicuntur Spiritualia, vespectu rei, ad quam praesentatur, quae Spiritualis est. Vide Lindwood. cap. de Jurejurando. fo. 80. He says further, that there is a diversity between a presentation or collation made by a rightful Patron and an usurpur. For in Case of a rightful Patron, which doth corruptly present or collate, by the express Letter of the Statute the King shall present: But where one doth usurp, and corruptly present or collate, there the King shall not present, but the rightful Patron: For the Branch that gives the King power to present, is only intended, where the rightful Patron is in fault; But where the rightful Patron is in no fault, there the corrupt act and wrong of the usurper maketh the Benefice, etc. void, but taketh not away the Lawful Title to present from the rightful Patron And so it was adjudged Mich. 13. Jac. in Quare Impedit, between the King & the Bishop of Norwich, Tho. Cole, and Rob. Secker, for the Vicarage of Haverel in Suffolk.  
(39) The Canon Law looks upon Simony as a kind of Heresy, imò Simoniacos veluti primos & praecipuos Haereticos: Rebuff de Simon. in Resign. nu 12. and excommunicates all simoniacs to that degree as not to be absolved but by the Pope himself, nor by him till at the point of death.— extra. cum sit detestabile de Simonia. And are ipso jure deprived of that Benefice wherein the Simony was Committed:— extr. ibid. And this holds true as well where the Simony is only Coventional or by Compact, as where it is real & per pecuniam numeratam; albeit there are some D D. who will not agree that a mere Conventional Simony should incur a Deprivation, although they contest it not as to the real Simony, viz. cum aliquid datur. Cassad. in Decis. 5. de Const. But in the Council of Constans (touching this Matter) there is nothing said the datione as to Deprivation, but only to as Excommunication; whether therefore it be a Conventional or a Real Simony, a Presentation or Collation in consequence of either, is ipso jure void and null according to that Law. Rebuff. ubi sup. nu. 10. It is worth an Asterisk to observe, what an excellent exposition Rebuffus the Canonist to this purpose makes on Matth. 21. 12. (possibly more like a Lawyer than a Divine) he says, that by the sellers of Doves, is there meant, such as endeavour to make sale of the Sacred Imposition of hands: And by the Money-Changer are intended such as sell Ecclesiastical Benefices: And pleasing himself in this conceit, breaks out into a Peice of Eloquence, viz. Nusquam reperitur (quod sciam) Dominum tanta severitate, tam districta censura Justitiae peccatores corripuisse, non solum eloquio increpans, verum etiam facto flagello de funiculis verberans omnes eliminavit de Templo; and thence most infallibly infers, that our Lord and Saviour Jesus Christ the Redeemer of Mankind, did cast out of the Temple all Simoniacal persons, and such as sell and make merchandise of Ecclesiastical Benefices.— Rebuff. de Elect. derog. lit. d. in verb. Nonnullae.  
(40) This most detestable Evil of Simony, may possibly (though rarely) be found in Ordinations; yet is most frequently negotiated in Presentations (Roman Elections and Postulations) Collations, Resignations, and Permutations of Ecclesiastical Benefices. It is supposed that it hath its denomination from Simon Magus for these three Reasons, (1.) Because he was the first, that in the New Testament we meet with, that was ever infected with that Crime. (2.) Because he was the superlative Offender in this kind above all others that were anciently guilty thereof, for (as Augustine saith) he would buy the Holy Ghost on purpose to sell the Holy Ghost. 
Aug. tract 40. in Johan. Num. 22.  But those that went before him sold only some created Spiritual thing, as Balaam would have sold his prophecy; and Gehazi Servant to Elisha, that health which he obtained from a Divine Power for Naaman the Syrian. 
2 King 5.  (3.) Because Simon seemed obstinately to persist in supposing this thing to be Lawful, and so therein he thence became an heretic, and as such is generally condemned by the Fathers. The Definition which Panormitan makes of Simony seems defective according to Lessius and other modern Authors; Panormita defines it as aforesaid) to be studiosam voluntatatem emendi vel vendendi aliquid Spirituale, vel Spirituali annexum, opere subsecuto. But to make the definition adequate to the thing, there should be added to it (pretio temporali;) for it is supposed, that if one Spiritual thing be given for another, in that Case it is not properly Simony, because the Turpitude of this Evil consists in this, that Spiritual things, which in their own Nature are inestimable, are here estimated at a Carnal, Humane, or Temporal price, which value or price the Law makes threefold, viz. Pretium muneris, as Money or aught else that may be sold for Money: Pretium linguae, as undue and undeserved Praise, or immoderate Flattery: Pretium obsequii, as some service done, or to be done for the Patron in matters Temporal; or as when a Chaplain serves a Bishop domestically without any Stipend or Salary, or remitts it on purpose that a Benefice may be bestowed on him; which by the express Letter of the Canon Law is no other than Simony. c. sunt nonnulli. 1. q. 1. So likewise as to the Pretium linguae, that Law is express against it, That Rogans pro indigno ut Beneficium obtineat, Simoniam committit; dict. c. sunt nonnulli. etc. tuam, de aetat. & qualit. As to that Mental Simony which Navarr. cap. 23. nu. 102. And Cajetan also, verb. Simonia, and others would have to be one Member of the Distinction thereof, it seems to be wholly rescinded by the two last words of the Definition, opere subsecuto. It is also the more received Opinion among the DD. that to resign a Benefice into the hands of the Ordinary in favour of a Third Person, with this Clause (non aliter nec alias) is Simony; the Reason they give is, quia omnis pactio in spiritualibus Simoniam continet. cap. fin. de Pactis. & cap. ex parte. 1. de Offic. Deleg. To conclude, the Canon Law in this point of Simony is of a far wider extent than the practice with us is capable of comprehension; remembering therefore we are in an Abridgement, we may abuse the Reader in perplexing him with exotic Questions in reference to this Subject, As whether every Sale or Exchange of Spirituals for Temporals be Simony? Whether an Exchange of Spirituals for Spirituals be Simony? Whether there be any Simony Jure Humano, and by what Contracts it may be discerned? Whether the Pope may be Simoniacal. Q. Whether it be Simony to give money for the Sacrament upon a deathbed? Whether it be Simony in the Ordinaries or their Officials to take money for Letters of Ordination under Seal? Whether it be Simony in ecclesiastics to take money for Sermons or Theological Doctrines? Whether it be Simony to resign a Benefice reserving a Pension out of it? Whether it be Simony to resign or bestow a benefices upon Trust or Confidence? With divers other such Questions in the Canon Law, relating to this Subject, the Solutions whereof are not of any moment to us who are out of the Pope's diocese.   

CHAP. XL.  
Of Blasphemy and heresy.  

1. What Blasphemy is, and whence so called.  
2. The several punishments inflicted on Blasphemers.  
3. How may ways Blasphemy may be.  
4. What heresy is; a Conjectural derivation of that word heresy, it is Threefold.  
5. What shall he accounted heresy; what the Lollards of old were, and why so called.  
6. In whom the Jurisdiction of heresy properly resides.  
7. A heretic convicted, and so persisting, whether according to Law combustible; The reason of that severe Law; heresy is Lepra animae.  
8. An Alphabetical black Catalogue of heretics; their Errors, Heresies, and Blasphemies; and the times wherein they pestered the World.  
9 A Catalogue of Jewish heretics, but not in any Alphabetical manner as the former.   
(1.) BLASPHEMIA, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, quod laedat famam. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is as it were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, to hurt another's same or reputation: Suidas interpreteth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, one who injureth God with contumelious words, which is when men detract from God the honour due unto him, or attribute any evil to him. Blasphemare, est tacit vel express, verbo vel scripto, contra deum aliquid contumeliosum dicere. Navar. cap. 12. nu. 81. Blasphemia est injuriosa in deum locutio, vel contumelia in deum verbo irrogata. Lesle. lib. 2. the Blasph. This is cognizable in the Ecclesiastical Jurisdiction, and by the 109. Canon of the Ecclesiastical Constitutions of the Church of England, is among other notorious Crimes to be certified into Ecclesiastical Courts by way of presentment, in order to punishment according to Law.  
(2.) This Crime of Blasphemy was so odious to the Emperor Justinian, that he ordained, that the Blasphemer should undergo ultimum supplicium, be punished by death, for he made it capital. Auth. ut non. Luxur. Coll. 7. By the Ecclesiastical Laws of Keneth King of Scots. An. 840. It is provided, that he that Blasphemeth shall have his Tongue cut out 
a L. L. Eccl. Kenethi. l. 7. Spelm. Concil. An. 840. . Blasphemy is speaking Treason against the Heavenly Majesty, the belching out of exercrable words against God, whereby the Deity is reproached. Baldus says that Blasphemy is a kind of Heresy. Bald. in L. Qui accusationem C. Qui Accus. non posse. for which a layman is anathematised by the Church of God, and a Clerk deposed from all Ecclesiastical Orders. Can. si quis per capillum. 22. q. 1. The Canon Law seems not severe enough in the punishment of this Crime, probably for that they of the Roman Church do hold, that there is a Blasphemy against Saints, and Blasphemia Dei vel sanctorum hath but one and the same punishment with them, and that is a solemn and public penance if the Blasphemy were publicly committed. Extra. de Maledict. c. statuimus. And that the World may know how they abominate this sin of Blasphemy, they put the Question and demand, whether any Priest inferior to a Bishop, can absolve a man from this sin? for answer they distinguish and say, that if the Blasphemy be public and notorious, it cannot be absolved but by a Bishop: but if it were only private and occult (non in platea, nec in camera multis audientibus) then every Priest may absolve it. Ant. de pae. & re. si Episcopus. lib. 6. Steph. de Gaeta Repet. in c. ad Limina. 30. q. 1. nu. 139. Aquinas reckons it among the Mortal sins.  
(3.) Lindwood in his Provincials says, that that is Blasphemy quae dicitur irreligiosa reprehensio, detractio, vel vituperatio, but (says he) to speak properly and strictly, Blasphemare, est Deo injuriam irrogare, which may be done three several ways, (1). Aliquid attribuendo quod deo non convenit. (2.) Ab ea removendo quod deo convenit. (3.) Creaturae attribuendo illud quod est proprium deo. Lindw. de Offic. Archipr. c. 1. verb. Blasphemia. In the Primitive times this sin was punished by a delivering the Offender over unto Satan, which was an Ecclesiastical censure by the Greater Excommunication, whereby the Offender became unto others as an Heathen and a Publican. 
1 Cor. 5. 5. 1 Tim. 1. 2.  Mat. 18. 17. and whereby he is dissiranchised of all the privileges of the Church.  
(4.) Touching heresy, there are various conceptions as to the derivation of that word; some are of opinion that the word comes from (Error and rectus) and that from thence comes [Haereticus] that is, Errans à Recto sive Rectitudine Fidei Catholicae. l. 2. in sin. C. de heretic. Others will have the word Heresis to be from [heriscor] that is [divido,] and thence heresy to be Divisio ab unitate Fidei. Azo. Sum. C. eod. tit. Others will have it to be from [haereo & Error,] thence Haeresis, quasi adhaesio Erroris, and Haereticus, quasi adhaerens Errori, for Error of itself doth not make an heretic, but adhering to an Error doth. Lindw. de Haeret. c. 1. And others there are, who do conceive that the word [Haeresis] dicitur ab Electione, because an heretic doth choose to himself that Opinion which he thinks is best for himself 
b Hieron. Epist. 24. q. 3. haeresis. . And he that inclines to this Opinion, seems to be least in an Error, for Haeresis is from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Optio, vel electio, secta, ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Eligo. Heresy is an Opinion repugnant to the orthodox Doctrine of the Christian Faith, obstinately maintained and persisted in by such as profess the Name of Christ. that heresy which is commonly called Haeresis univorsa, or Heresy in sensu largo is threefold, and doth consist either in a man's heart, or in his mouth, or in his works. Under the first of these are comprised all such as are Christians only by Name, but not so in truth and in deed: under the second are comprehended all vain Swearers, Covenant-breakers, and indevout approachers to God in his Worship: under the third are contained all Hypocrites, whose counterfeit devotion without any sincerity in the heart, consists only in the simulation of an external work; all these are by Lindwood. understood in a large sense as Heretics Lindw. de Offic. Archipr. c. 1 glos. in ver. Haeresis. But these are not the heretics here meant or intended, nor indeed are they heretics in any proper sense, whereby we commonly understand such as heretics, who maintain and persist in any Opinion contrary to the True, Orthodox, Catholic Faith, or any of the Articles thereof grounded on the word of God.  
(5.) By a Proviso in the Act of 1 Eliz. c. 1. no matter or cause shall be adjudged heresy, but such only as hath been so adjudged by the Authority of the Canonical Scriptures, and by the first four General Councils, or by any other General Council, wherein the same was declared heresy by the express and plain words of the Canonical Scripture, or such as shall hereafter be determined to be heresy by Parliament, with the assent of the Clergy in their Convocation, as appears by the said Statute; the occasion of the making whereof was (as supposed by reason of an Indictment against certain persons called Lollards, upon the Statute of 2 H. 4. c. 15. Whose Opinions were (1.) That it was not meritorious to go in Pilgrimage to St. 
Lollards from Lolium, Darnel or Tares.  Thomas, nor to St. Mary of Walsingham. Nor (2) To adore the Image of a Crucifix or of Saints. Nor (3) To confess sins to a Priest, but to God only, etc.  
(6.) Sir Ed. Coke in the third part of his Institutes cap. 5. doth assert, that both by the Books at Common Law, and by History it doth appear, that an heretic may be convicted before the Archbishop and other Bishops, and other the Clergy at a General Synod or Convocation. Bract. Lib. 3. fo. 123, 124. in Concil. Oxon. Newburgh. l. 2. c. 13. 6 H. 3. Stow. Hol. 203. 2 H. 4. Rot. Parl. nu. 29. Sautries' Case. F. N. B. 269. 2. 1 El. c. 1. And the Bishop of every diocese may convict any for heresy, and so might have done before the Statute of 2 H. 4. c. 15. 
c Co. p. 3. Inst. c. 5.  For the Diocesan hath Jurisdiction of heresy, and so it was practised in all Q. Elizabeth's Reign: and accordingly it was resolved by all the Justices in the the Case of Legate the heretic 
d By Fleming Chief Justice, Tanfield Chief Baron, Williams, and Coke Justices. Hill. 9 Jac. ; And that upon a conviction before the Ordinary of heresy, the Writ de Haeretico comburendo did lie 
e Mat. Hammond. 21 Eliz. Holl 1579. Stow. 1161. Co. ubi supra. . Without the aid of the Act of 2 H. 4. c. 15. it seems the Diocesan could Imprison no person accused of heresy, but was to proceed against him by the censures of the Church. And now (says the Lord Coke in the forecited place) In as much as not only the said Act of 2 H. 4. but also that of the 25 H. 8. c. 14. are repealed, the Diocesan cannot Imprison any person accused of heresy, but must proceed against him as he might have done before these Statutes, by the censures of the Church, as it appears by the said Act of 2 H. 4. c. 15. according to Sir Ed. Coke in that place aforesaid: where he also saith, that no person at this day can be indicted or impeached of heresy before any Temporal Judge, or other that hath Temporal Jurisdiction. But every Archbishop of this Realm may cite any person dwelling in any Bishop's diocese within his Province for causes of heresy, if the Bishop or other immediate Ordinary thereunto consent, or if that the same Bishop or other immediate Ordinary or Judge do not his duty in punishing the same 
f 23 H. 8. 9 & Co. ubi sup. .  
(7.) Again, Sir Ed. Coke in the forementioned place affirms, that it appears by Bracton, Britton, Fleta, Stanford and all the Books of the Common Law, that he who is duly convicted of heresy, shall be burnt to death. Mir. c. 4. de Majesty. Bract. ubi sup. Britt. c. 9 Fleta. l. 1. c. 35. Reg. F. N. B. 269. But the Ecclesiastical Judge cannot (as he says) at this day commit the person that is convict of heresy, to the Sheriff (albeit he be present) to be burnt; but must have the King's Writ De Haeretieo Comburendo according to the Common Law. F. N. B. 269. Rot. Par. 2 H. 4. nu. 29. Sautries' Case. Bre. de haeret. Combur. per Reg. & Concil. in Parliam. The reason Sir Ed. Coke gives, wherefore heresy is so extremely and fearfully punished is, for that Gravius est aeternam quam Temporalem Laedere Majestatem: And Haeresis est lepra animae. 
g 2 Mar. tit. Heresy. Br. 7. Co. ubi supr. . The party duly convicted of heresy, may recall and abjure his Opinion, and thereby save his life, but a relapse is fatal. And if the heretic will not (says he) after conviction abjure, he may by force of the said Writ be burnt without abjuration 
h Co. ubi supr. and 2 Mar. ubi supr. . 2 H. 4 Rot. Parl. N. 24. A Writ was issued by the advice of the Lords Temporal in Parliament to the Sheriffs of London, and subscribed per ipsum regem & concilium in Parliamento, by which the Sheriffs were commanded to burn William Sautre, who had been before condemned for a relapsed heretic by the Archbishop of Canterbury Apostolicae sedis Legatum, and other Suffragans, and all the Clergy of that Province, in Concilio suo Provinciali Congregat. juris ordine. Note 1 Eliz. cap. 1. Proviso, that such as have Jurisdiction by Letters Patents, shall not have power to Judge heresy but in such Cases as have been before adjudged, etc. or such as shall hereafter be ordered, judged, and determined to be heresy by the High Court of Parliament of this Realm, with the assent of the Clergy in their Convocation, as aforesaid. Before a man shall be adjudged an heretic, he ought to be convicted by the Provincial Synod, for the Common Law doth not take notice what is heresy. 
F. N. B. 269.  If an heretic convict shall after abjuration relapse into the same or any other heresy, and thereof be convict again, the Writ De Hoeretico Comburendo may be directed to the Sheriff after the party is delivered by the Clergy unto the secular power. And by the Statute of 2 H. 4. c. 15. Every Bishop in his own diocese might (as aforesaid) convict a man of heresy, and upon another conviction after abjuration, might by the Sheriff proceed unto comburation. But that Statute is repealed by the Statute of 25 H. 8. c. 14. vid. co. lib. 12. in a Case of heresy. Note 2 Ma. tit. Heresy. Brook per omnes Justiciarios & Baker & Hare. The Archbishop in his Province, in the Convocation, may and doth use to convict heresy, by the Common Law, and then to put them convicted into Lay-hands, and then by the Writ De Haeretico Comburendo they were burnt; but because it was troublesome to call a Convocation, It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his diocese might convict heretics. And if the Sheriff was present, he might deliver such to be burnt without the Writ aforesaid; but if the Sheriff were absent, or he were to be burnt in another County, than the said Writ aught to be had, who are Heretics, vid. 11. H. 7. Book of Entries, fo. 319. vid. Doctor and Stu. lib. 2. cap. 29. Cousin. 48. 2. 1 & 2. P. & M cap. 6. Also 3 F. N. B. foe 269. And the Writ in the Register proves this directly. 4 Bracton. l. 3. cap. 9 fo. 123, 124. And it is also true, that every Ordinary may convent any heretic or schismatic before him pro salute animae, and may degrade him, and enjoin him penance according to Ecclesiastical Law; but upon such conviction the party shall not he burnt. Note (says the Lord Coke in the same place) that the makers of the Act of 1 Eliz. were in doubt what shall be deemed heresy or Schism, etc. and therefore the Statute of 10 Eliz. provides, that nothing shall be deemed heresy, but what had been so determined by one of the four General Councils, the word of God, or Parliament. vid. Fox in Ed. 6. and Britton. 5 Ed. 1. lib. 1. cap. 17. and with this agrees the Statute, 2 H. 5. cap. 7. 23 H. 7. 9 25 H. 8. c. 14. The proceed in the commencement and end was altered by the Statute of 25 H. 8. Then came the Statute 1 Ed. 6. cap. 12. and that repealed 5 R. 2. 2 H. 5. and 26 H. 8. and the 2 H. 4. and by general words all Statutes concerning matter of Religion; then the 1 & 2. P. & M. cap. 6. Revived the 2. H. 4. by which the 25. H. 8. lost its force, the Act 1 and 2 P and M. cap. 8. expressly repealed. 21 H. 8. 23. H. 8. 24. H. 8. 27. H. 8. but the 25. H. 8. cap. 14. was not repealed, being repealed before by the 1. Ed. 6. yet in the end of that long Act there is a general clause sufficient of itself to repeal the Act 25. H. cap. 14. without more: Then the 1. Eliz. cap. 1. repeals the 1 and 2 P. and M. except some Branches; and in the same Act it is enacted, that all other Statutes repealed by the said Act of Repeal 1 and 2 P. and M. and not in this Act specially revived, shall remain repealed. But the 25. H. 8. cap. 14. was not particularly revived, and therefore remains repealed. And after the said Statute 1. Eliz. repeals the Act 1 and 2 P. and M. of reviving of three Acts for punishment of Heresies; so that now at Common Law (according to the Lord Coke) none can be burnt for heresy, but by Conviction at a Convocation. After this, viz. Hill. 9 Jac. the attorney and solicitor consulted with him whether at this day, upon Conviction of an heretic before the Ordinary, the Writ de Haeretico Comburendo lieth, and it seemed to him to be clear that it did not, for the Reason and Authorities that he had reported Trin. 
Hill. 9 Jac. Co. lib. 12.  9 Jac. before. But after, they consulting also with Fleming Chief Justice, Tanfield Chief Baron, and Williams and Crook Justices: And they, upon the report of Dr. cousins, and some precedents in Queen Elizabeth's time, certified the King that the said Writ lieth 
i Coke lib. 12. Case of heresy. .  
(8.) Since the Devil in his Serpentine Policy first negotiated the Fall of Man, there have ever been such as have gone forth, like the lying Spirit in Ahabs false Prophets, whereby many, as he was, are deceived to their own ruin; these are the devil's Emissaries, Active in sowing Tares among the Wheat, whom we commonly call heretics, a Black Catalogue whereof in an Alphabetical Method here follows.  
Acatiani and Semi-Arriani, 
An. 491.  they held that the Son was a Creature made by the Father, and that Christ was like to the Father in Will but not in Substance. This heresy began by Acatius (not the Eutychian) Bishop, and Successor to Eusebius in Cesaria; and was condemned in the Council of Seleucia. 
A. D. 353.   
Acephali, so called because they had neither Bishop nor Priest for their Head, and were Branches of the Eutychian heresy. They rejected the Council of chalcedon, and denied the two Natures of Christ. 
An. 174.  They despised all Congregations and the Sacraments.  
Adamiani, so called from their going naked in their Assemblies (in imitation of Adam in his Innocency) to which Estate they said Christ had restored Mankind. They condemned Marriage and had Women in common, with whom they lay promiscuously after the Light put out. They held that we ought not to pray to God, because he knows our wants without Prayer: And called their Assemblies that paradise which God had promised to the Blessed. They had their Conventicles in subterrancan places, called Hypacausta, because that under the place of their Meetings, a Furance of Fire was kindled to warm the same, where they unclothed themselves when they entered into it, and stood naked, both Men and Women, in imitation of Adam and Eve before the Fall. This heresy was first broached by one Prodicus a Gnostick. There was also the heresy of Adamites, promiscuous in their Lusts, begun or rather revived by a Picard of Gallo-Belgia in the year 1341.  
AEtius, 
An. 357.  a Syrian of Antioch, and Priest of that Church, successor to Arius, to whose Errors he added, and was degraded, and went into Cicilia, where he published them, and was banished by the Emperor, and recalled by Julian in hatred to the Christians. He held (besides Arrianism) that God was comprehensible, and that Christ was unlike the Father in all things, and spoke uncouth things of the Trinity, and was justly called an Atheist. He was condemned in the Seleucian Council in the year 359. and confuted by Epiphanius.  
Agnoetae, 
An. 601.  they held that the Divine Nature of Christ was ignorant of some things, as of the day of Judgement, and denied perfection of knowledge to the Son of God in his Divine Nature.  
Almaricani, 
An. 1202.  from Almaricus of Carnotum in France, who uttered Blasphemous opinions concerning God, that he was the Essence of all Creatures, and the Soul of Heaven, and that all Creatures should be converted into the Substance of God again: These heretics approved of all Uncleaness under the Veil of Chastity.  
Alogi, 
An. 198.  they rejected the Gospel, and the Revelation of St. John; saying that they were written by Cerinthus, and denied Christ to be the Word, 
An. 214.  as also his Divinity.  
Angelici, These heretics were Angel-Worshippers; Epiphanius who speaks of them, better knew their Name than the original of their Sect.  
Anomaei, a Branch of the Stock of the Arians; the principal Authors were Acatius, Eunomius, and AEtius. This was in the fourth Century; Sozom. l. 4. c. 22.  
Anthropomorphitae, 
An. 932.  these heretics were the Disciples of the Andeani an. 370. and revived their heresy, so called of Audaeus a Syrian, who lived in the end of Arius his time. They Blasphemously held that God had a body like unto Man. That Darkness, Fire, and Water were Eternal. They refused the congregation of the Orthodox Church & admitted grievous Sinners to the Communion without Repentance.  
Antidicomarianitae, these supposed that after the Nativity of our Lord, the Virgin Mary accompanied with her Husband Joseph, and did bear Children to him. August. de haeres. of which opinion was Helvidius. It is said, that the opinion of the Fathers of the Church was, that as no man did lie in the Sepulchre wherein Christ was buried, before him: So in the Womb wherein he was conceived, no man was conceived after him; and that the Fathers by the words in the Apostolic Symbol understood, that he was born of Mary a perpetual Virgin; And that by the Brethren of our Lord in the Holy Scriptures, is meant (as is generally held) the Kinsmen of the Lord according to the Flesh. 
An. 1556.   
Antrinitarians were those heretics who denied the Blessed Trinity.  
〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, these were a Branch from the Root of Eutyches; They supposed that the Flesh of Christ was void of all kind of Humane Infirmity. The Emperor Justinian was said to be tainted with this heresy in his old age, by bearing so much with the Empress Theodora, to the great Advance of Eutyches his Error.  
Apelles, a Disciple of Martion, yet could not agree with his Master in all things, for he agreed that Christ had a true Body, but not made of the Substance of the Virgin Mary, but of the four Elements, and that after his Resurrection he dissolved into the four Elements, and then returned to Heaven from whence he came Epiphan.  
Apollinaris, 
An. 373.  Bishop of Laodicea in Syria, so Ruffian. l. 2. c. 20. yet it is said of him, that missing of a bishopric he fell into these Heresies, viz. That Christ had not Humane Flesh from the Virgin, but from Heaven: That he had a Humane body but not a Soul: Confounding the Persons in the Trinity: That Christ had no Humane Will: That Souls begat souls: That after the Resurrection, all the Ceremonies of the Law should take place among the Godly.  
Apostolici, 
An. 183.  these heretics condemned Marriage, and held the Apostles to be all unmarried: They made all things to be common: They used apocryphal books for Gospel: They refused to receive those into the Church who had lapsed after Baptism: They would not have Possessions, but rejoiced in voluntary Poverty: and gave Sentence against themselves that they were unclean, because they were procreated by Marriage.  
Aquarii, these were certain heretics, who instead of Wine received Water in the Holy Sacrament. This was in the days of Cyprian.  
Arius, 
An 324.  a Lybian, and a Priest or Presbyter of Alexandria, he said that Christ was neither God, nor Eternal, but an excellent Creature created before all Creatures: That he assumed only a Body, but not the Soul of a man: That the Holy Ghost was a Creature of a Creature, viz. of the Son: He rebaptised, and perverted the order of Baptism: He used the Trisagion thus, Gloria Patri, per Filium, in Spiritu Sancto: He denied the Son of God to be begotten of the Substance of the Father, but that he was a Creature, and made of things not existent, and that there was a time wherein the Son was not: He was condemned in the Nicene Council, and banished by the Emperor Constatine.  
Armenii, 
An. 609.  so called of the Province, where their Heresies raged, by the means of Euchanius called Mantacunes: They denied, that Christ assumed his Humanity from the Virgin Mary: They celebrated the Passover after the custom of the Jews: They held a Quaternity, and that the Divinty suffered.  
Artemon, Bishop of Bostra in Arabia, denied the Divinity of Christ, and affirmed that he was not existent before he took Flesh from the Virgin. This was in the third Century.  
Artotyritae, 
An. 186.  they were of the Sect of the Pepusians, and added Cheese to the Bread in the Sacrament.  
Assitae, these were heretics who carried about with them new vessels, to represent that they were vessels filled with the new Wine of the Gospel.  
Badesianistae, these were but a Branch of the heresy of the Valentinians and gnostics, who denied the Resurrection; these heretics were in the third Century.  
Basilides, 
An. 135.  an Egyptian of Alexandria; he held fond Opinions concerning the Creation and number of Heavens: that not Christ but Simon of Cyrene was Crucified: That it was lawful to deny Christ in time of persecution, and to have Idols: that no Sins but such as are unwittingly committed should be pardoned: That Faith was natural: That prophecies came not from God but Angels: And that there was no Resurrection.  
Beryllus Bishop of Bostra, he was orthodox at the first, but afterwards held that the Soul died with the Body, and both rose again together: That Christ was not before his Nativity. Origen reclaimed him, These Heresies were condemned in the Arabian Council. An. 249.  
Caini, 
An. 170.  so called of the special worship they attributed to Cain: The reverenced Esau, Core, the Sodomites, yea and Judas himself, as Authors of man's Salvation: They denied the Resurrection of the Body: rejected the Law, and worshipped evil Angels. Tertullian and Epiphanius say, that these heretics arose from the Nicholaitans, but Ireneus says they sprung out of the Valentinians.  
Carpocrates of Alexandria in Egypt, 
An. 141.  he held that Christ was mere man, and born of Joseph and Mary: he held also the transmigration of Souls; also that the Devil created the World, and denied the Resurrection. These damnable Heresies did spread in Egypt, Asia, and Rome under the name of gnostics: he lived incontinently with Marcellina, one of his own Sect, his Son Epiphanes succeeded him in this diabolical heresy, and (after him) Prodicus the Author of the Adamites. The followers of Carpecrates had in secret places Images of Gold and Silver, which they called the Images of Jesus, and therewithal the Images of Pythagoras, Plato, and Aristotle, all which they worshipped. So that the worshipping of Images, and the adoration of the Image of Jesus, seems to be a custom borrowed rather from the old heretics, than from the ancient Fathers of the first Three hundred years. Epiph. contra Haeres.  
Cathari, 
An. 252.  they professed themselves purer than others, and held rebaptising those who sinned after Baptism, condemned second Marriage, and refused to receive those who had lapsed in time of persecution. The founder of these Cathari was Novatus, ordained Priest of Rome by Cornelius, upon his repulse in a bishopric.  
Cerdon of Syria, 
An. 144.  from whence he went to Rome, and in the time of Higinus broached these blasphemous heresies, viz. That there were two Gods, one good, who was the Father of Christ, and another severe and bad, and this Created the World. This Cerdon, as also Martion, were the Authors of the Opinion of two Gods, or two Beginnings: he denied the Resurrection of the Body, and invented a new Baptism after a man hath been baptised a second and third time: he held that Christ was neither born of the Virgin Mary, or suffered really, with many other Blasphemies against him: he rejected the Law, and often feigned to recant, but in the end was Excommunicated, having lived in Rome Eight and thirty years.  
Cerinthus, 
An. 93.  a circumcised Jew, contemporary with Ebion, he affirmed that the World was not Created by God, but by an inferior power: That Christ was born after the manner of men, of Joseph and Mary, denying her Virginity: he divided Jesus from Christ, saying that Christ descended upon Jesus at his Baptism in the form of a Dove: That Jesus, not Christ, suffered and risen again: That there was a necessity of Circumcision, and that Life Eternal should be at Jerusalem, where all Earthly pleasures should endure One thousand years. The report is, that St. John finding him in a Bath, departed thence saying, that it was a Miracle that the Bath fell not down while Cerinthus was in it. This heresy began at Antioch, and spread over Asia and Syria; but this Name lasted not, though Carpocras and Samosatenus continued the heresy.  
Chiliastae or Millenarii, 
An. 116.  their Author was Papias Bishop of Hierapolis, whose heresy was a Branch of that of Cerinthus, in that point that Christ would raise the Godly first, and live a thousand years with them on the Earth. This heresy was afterwards maintained by Nepos, an Egyptian Bishop, Two hundred thirty one years after Christ's Passion.  
Circumcelliones, They were the most reprobate Branch of the Donatists: they would throw themselves headlong from high places, or cast themselves into fire or water, and counted it martyrdom. Aug. de Haeres.  
Colarbasus, he was Marcus the magician's Fellow Disciple, and held that men's Lives and Actions were ruled by Seven Planets, and divided Jesus and Christ into two distinct persons.  
Collyridianis, 
An. 364.  they offered Divine honour to the Virgin Mary, and Sacrificed to her as to the Queen of Heaven, they worshipped her with Divine adoration, and offered to her little Pasties baked. Epiphan.  
Coluthiani, they denied that any evil, either of sin or punishment was of God.  
Donatists, 
An. 307.  from Donatus a priest of Carthage, who missing the bishopric he would have had, did discontentedly fall into these heresies, viz. That the true Church was not where but with him and his Disciples: that obedience to God's precepts ought to be voluntary and not compulsive: That no heretics ought to be punished by the Magistrate: he measured the effects of the Sacrament by the Minister, not by the Author: He rebaptised, used Incantations, and boasted of Revelations: he held the Son to be less than the Father, and the Holy Ghost less than the Son: His followers slew as many opposites to their Sect as they could: he was at last Bishop of Numidia.  
Ebioni, 
An. 87.  from Ebion a Samaritan, their Founder, or from Ebion [Hebraice] Poor, they having made themselves so by distributing their Goods in Alms. They denied the Divinity of Christ, rejected St. Paul's Epistles and all the Gospel except St. Matthew; and held themselves bound to observe the Law of Moses as necessary to Eternal Life. Euseb.  
Elcesai, 
An. 110.  of Elcesai their Founder, they were also called Sampsei: They opposed the Virginity of the Virgin Mary, and held that there were two Christ's, one inferior born of her, the other superior; also that the Spirit was Sister to Christ: They adored water as a God: held it Lawful to become Apostates in time of persecution, and approved of one only. Apocryphal Book made by themselves. They sprang from Ebion the heretic.  
Enchratitae, so called because they abstained from Wine, eating of Flesh, and living Creatures: they condemned Marriage, and blasphemed the Epistles of St. Paul; The Author of this Sect was Tatianus a Syrian. Euseb. l. 4. c. 28.  
Euchitae, 
An. 385.  they held Baptism unprofitable.  
Eunomius, 
An 361.  Bishop of Syricum, an Arian, he added to the heresies of AEetius, that the Holy Ghost was Created by the Son, and that Christ assumed only a humane Body, and not a Soul, he was confuted by St. Basil.  
Eutyches, 
An. 447.  Abbot of Constantinople, confuting Nestorius, fell himself into other errors, and confounded the two natures of Christ, making him (after his union) to have but the Divine nature only, and held that he assumed nothing but Humane from the Divine: He affirmed also that the Divine nature was passable, and that Christ was rather Deified than God; he was condemned in the Council of Chalcedon.  
Foelix Bishop of Vrgel on the Pyrenean hills, 
An. 792.  he held that Christ in his Humane nature was the Adopted Son of God; he was condemned for heresy at Ratisbon; hence came the Foeliciani.  
Floriani from Florinus or Florianus a Priest of Rome, 
An. 185.  he held that God Created all Creatures and things in an evil state, and celebrated the Passover after the manner of the Jews.  
Fratricelli, they were of Opinion, that a man might in this world attain to a state of such perfection that he might be altogether without sin, and that he who had attained thereto, was neither under subjection to Civil nor Spiritual Governors, but was freed from all subjection to mortal men, and that they had no need of Prayer or Fasting. These were in the thirteenth Century, and now also in this seventeenth Century are every where to be found among us, though under another appellation.  
Gazareni, 
An. 1295.  called also Patereni, and Gazari, these were certain heretics about Tholouse in France in the thirteenth Century, who held that married men were not in a State of Grace, and could not be saved; This Opinion was condemned by the Council of Lateran.  
Gnostics, 
An. 161.  they assumed that Name from the knowledge and learning which they proudly conceived they had above all others: They held (besides those heresies of the Carpocratians) many other fond Opinions concerning the Creation by Angels; and affirmed that every faithful man had two Souls, that there were two Gods, one good and the other bad: They distinguished Jesus from Christ: and held that Christ was eighteen months upon Earth after his Resurrection. There were divers sorts of this Sect.  
Godescalchus, 
An. 849.  one of the Netherlands, about the year eight hundred forty nine, perniciously held, that those who were predestinated unto life by a decree of God's predestination, were necessitated to do well: and those who were predestinated to condemnation, were necessitated by a Decree of God to do evil.  
Helsesaitae, the same with those formerly called Elcesai, otherwise called Sampsaei, they mixed the Religion of the Jews, Gentiles, and Christians together: they rejected the Writings of the Apostle Paul: and affirmed that a man who denieth the Lord with his mouth in the time of persecution, if so be he adhered to the Faith in his heart, he had committed no sin: they carried about with them a singular Book, which they said was sent down from Heaven, and promised remission of sins to every man that would hearken to the words of that Book; these were of the third Century. Epiphan. contr. haeres. 2. & Comment. Func. in Chron.  
Hermiani, 
An. 201.  they sprung from Hermogenes an African, and held that the Mass whereof the World was created, was coeternal with God: That Angels created men's Souls: That Christ ascending, left his humane flesh in the Son: They denied the Resurrection, and received not Baptism by water.  
Hieracitae, 
An. 261.  of Hierax an Egyptian of Leontopolis, he spoke of the Father as of two lights, differing in substance: damned Marriage: denied the Resurrection: excluded Children from Heaven: held that Melchisedeck was the Holy Ghost: and that Paradise was no Earthly place.  
Jacobitae of Jacob a Syrian, 
An. 607.  called Zanzalus, for his poverty: They received the heresy of Eutyches.  
Jovinianus, 
An. 362.  a Roman, he held all sins to be equal: denied the Virginity of the Virgin Mary: Contemned Fasting, and all Spiritual exercises: and held that men did not sin after Baptism:  
Lucianistae and Apelliani, so called from Lucianus and Apelles, Disciples of Martion.  
Lucifer Bishop of Calaris in Sardinia, 
An. 367.  he diabolically held, that man's Body was form by the Devil: That a Christian might kill himself, to be quit of the burden of the flesh, and allowed but part of the Old Testament.  
Lucifernianis, it is supposed that these were not from the former, but from another Lucifer, for some say, that these were rather but schismatics than heretics, and only held, that Faith was a Weapon of Contentions, and not of Heresies. Theod. Compen. Haeres. Sozom. lib. 5. cap. 13.  
Lombardians for want of another Name, for in the time of the Emperor Albert in Lombardy near to Navarre, there were a Sect of heretics, who under colour of Religion and Charity made all things common, and women in like manner moved men to carnal conjunction, alleging it to be a deed of charity. This was in the fourteenth century. Imp. Hist. pag. 522.  
Macedonianis, 
An. 343.  of Macedonius the Arian Bishop of Costantinople; They were sometimes Semi-Arians, at other times Arians, and sometimes orthodox, but never constant. They held that Christ was not of the same essence with the Father, but only like to him: And that the Holy Ghost was not God, but God's Minister, and a Creature not eternal.  
Manes a Persian, 
An. 171.  otherwise called Manichaeus in Dioclesian's time, Author of the Manichees, he was a devilish crackbraind fellow, and chose to himself twelve Disciples, and composed his heresies out of divers others: He blasphemously affirmed himself to be the Holy Ghost: he held two beginnings, the one good the other evil: rejected the Old Testament, and mangled the New: denied Christ's Divinity, and his real Passion, and the Resurrection of the Body: Condemned Marriage, Alms, and Baptism: he most blasphemously said that Christ was the Serpent that deceived Eve: that Christ's Body was fixed in the Stars: That he redeemed Souls: he forged many things about the Creation: he worshipped the Sun and Moon as Gods: attributed two Souls to every man: he ascribed sin not to the free will of man, and his natural defection voluntary, from the Estate of the first Creation, but to necessity, because man's Body was made of the substance of the prince of darkness: with other fond and blasphemous heresies. One Scythianus a Sarazen Merchant infused these Heresies into him. Warranes' King of Persia hearing of his fame, sent for him to cure his sick son, who died under his hands; whereupon he cast him into Prison, from whence he made his escape into Mesopotamia; but there the said King retook him, slead him, filled his skin full of chaff, and caused it to be set up before the Gates of the City in Mesopotamia. Euseb. lib. 7. cap. 30. & Socrat. lib. 1. cap. 22. Eccle. hist.  
Marcellus Bishop of Ancyra, 
An. 341.  the Metropolis of Galatia, he held blasphemous Opinions against the Trinity, and denied the Divinity of Christ.  
Martion, 
An. 166.  the Disciple of the heretic Cerdon: he held (besides Cerdons heresies) that Christ was not the Son of God: he held likewise the transmigration of Souls: That War was not lawful though on just occasion: he condemned Marriage: rejected the Old Testament: forbade eating of flesh, and allowed of rebaptising (toties quoties) as oft as men fell and repent, Polycarpus called this Martion Primogenitus diaboli,  
Marcus a Magician, 
An. 149.  of whom came the M●●citae: he invented a new form of Baptism, viz. In the Name of the unknown Father of all things, and in the Name of the verity the Mother of all things, and in the Name of him who descended upon Jesus: he held that Christ suffered not, nor assumed a Body: he defiled the Sacrament, and was a man of a very filthy life: he denied the Resurrection of the Body, and supposed that Salvation belonged only to the Soul.  
Melchisedechiani, 
An. 208.  the Author of these heretics was Theodatus Disciple to Theodatus the Currier: he held that Melchisedech was made by God greater than Christ; whose Divinity they also denied, and magnified Melchisedech above Christ.  
Menander, 
An. 61.  Disciple and Contempory with Simon Magus, a Samaritan and a Sorcerer, and Author of the gnostics; he held with Simon about the Creation by Angels, and affirmed that he was sent from Heaven to save the World; and that by virtue of his Baptism men should not die nor grow old; but the success not answering his promise, his heresy fell of itself. Epiph. Euseb. Aug. & Theod. lib. 4 cap. 11.  
Meletiani from Meletius a Bishop of Thebaida, he was deposed for sacrificing to Idols. This was in the fourth Century.  
Messaliani, 
An. 374.  they worshipped God, but not in three persons, and held that God might be seen with corporeal eyes: that the Devil ruled our actions. They attributed Salvation to Prayer totally: they contemned Christ's Passion, and the Sacraments, Alms, and a laborious life, and tolerated Perjury to promote Religion.  
Metangismonitae, 
An. 403.  they held that the Son was in the Father, as a lesser Vessel comprehended in a greater: That God had a Body, and in the Divine essence was something greater and something lesser. Aug. out of Philaster.  
Monophysitae, 
An. 451.  whose Author was Dioscorus Bishop of Alexandria, they were also called Theopaschitae and Monothelites, who denied not directly the two Natures of Christ, but only affirmed that after the union of the Natures, there was only one will and one operation in Christ; they attributed the Divine Nature only to Christ; These were a branch of the Eutychian heretics.  
Montanus of Phrygia, 
An. ●●3.  Author of the Cataphryges', he affirmed himself to be the holy Spirit, he called himself the Holy Spirit, whom Christ sent to instruct his Disciples in all truth: He said that the Spirit fell but little upon the Apostles, and fully upon himself: He instituted Laws concerning fasting, condemned second Marriage, allowed Incest, confounded the persons in the Trinity, and baked man's Blood with the Bread of the Eucharist: He seduced two women Priscilla and Maximilla to leave their Husbands, and to be his Prophetesses.  
Nazareni, 
An. 67.  they styled themselves so, because that before the Name of Christians began, that Name was the most honourable among Christ's Disciples: They confessed Christ, but withal held a necessity of observing the Law, and framed strange things of Ouria or Nauria (Noah's Wife, as they would have it) or Vesta: They had many Gospels (as they called them) and boasted much of Revelations and Visions: They held that the Soul of a Man, of a Beast, and of a Plant were all of one Substance. These heretics continued till after the time of Epiphanius, who reporteth that the Jews so hated them, that they prayed twice a day against them. Epiph. Aug. Theodor. Isodor.  
Nepotiani, from Nepos, a Bishop in Egypt, about the year 264. They affirmed that at the latter Day the Godly should rise before the Wicked, and should live with Christ a thousand years in abundance of all earthly Pleasures. Euseb. lib. 7. cap. 24.  
Nestorius, 
An. 428.  Bishop of Constantinople, he spoke against the personal Union of Christ's Divine and Humane Nature, for he held that Christ had two several Persons, but not two Wills: That the Son of God in Christ, was but an Assistant to the Son of the Virgin Mary, whom he would not have to be called the Mother of God, but only the Mother of Christ. evag. l. 1. c. 7. He held that the Humanity in Christ was made equal with the Deity or Divine Nature. He was condemned in the general Council of Ephesus, and died in Banishment, his Blasphemous Tongue being first eaten with Worms, which rotten in his mouth.  
Nicholatiae, 
An. 81.  from Nicholas a Deacon of Antioch, chosen by the Apostles to look to the Poor, who being suspected to be jealous of his fair Wife, did (to clear himself) proffer her to any of the Brethren that would Marry her: Whereupon they took occasion to live promiscuously, making their Wives Common; and held that it was lawful to eat things offered to Idols: That Darkness and Light begat the World, of which were born Angels and Devils, and of them Men. This heresy continued not long in this Name, but was polished and revived by the gnostics and Vaentinians. Clem. Alex. & Strom. 3. Act. 6. & Euseb.  
Noetius, 
An. 179.  of Smyrna Disciple to Montanus, he called himself Moses, and held but one person in the Trinity: He being convented, abjured his heresy; but afterwards being ambitious of a Name, relapsed and dispersed it, and when he died, was cast out unburied, as not worthy thereof.  
Novatus, 
An. 252.  ordained a Priest of Rome by Cornelius, he was the Founder of the foresaid heretics the Cathari: He held that such as had fallen in time of persecution, were not to be restored to the Fellowship of the Church, albeit they repent thereof.  
Ophitae, 
An. 169.  of 〈◊〉 a Serpent, whom they worshipped, affirming most Blasphemously that Christ was the Serpent which deceived Eve: they denied Christ's Humanity, and the Resurrection; They held also a Blasphemous opinion concerning the Sacrament: This Sect was a Branch of the Valentinians, and continued till after the time of Justinian the first.  
Origeniani and Turpes, 
An. 18●.  of one Origen a Gnostick, who drew his heresy from Epiphanes Son to the heretic Carpocras: They prohibited Marriage, but committed fornication and all Filthiness, and rejected some Books of the Old and New Testament, which made against them. Some say they were soul and filthy Beasts, not abhorring Whoredom but Procreation of Children, to the end they might seem chaste, not unlike unto Onan whom the Lord slew. They were also called Origenistae, because they defended the Books of Origen, who were Theodorus Ascidas Bishop of Caesaria-Cappadocia, and the Monks of Nova Lawra. There were of these heretics also in the sixth Century.  
Palmerius, 
An. 1449.  the Chronologer, he was burnt for his Heretical Opinions concerning Angels.  
Papias Bishop of Hierapolis, 
An. 116.  he was St. John's Disciple, yet afterwards became the Author of the Sect of the Chiliasts or Millenaries, whose heresy was a Branch of that of Cerinthus, in that point, that Christ should raise the Godly first, and live a thousand years with them on earth.  
Patalorynchitae, a Foolish People who counted it Religion to stop their breath with their fingers, and not to utter any intelligible speech.  
Patareni and Gazareni, 
An. 1295.  these heretics did hold that married men could not be saved.  
Paterniani or Patriciniani and Venustiani, 
An 421.  they were called by the first Name, of Paternus their Founder, and by the last, of their lascivious behaviour: They held that the lower Parts of Man were not made by God but by the Devil; others say that they affirmed that the whole Body of Man was form by the Devil, and ●●t by God.  
Paulus Samosatenus, 
An. 267.  so called of Sam●sata the Metropolis of Comagena, where he was Born: He held that the word was not in Christ, otherwise than in the Prophets: That Christ was not the word, and denied his Divinity: He baptised not in Christ's Name.  
Pelagius Brito, 
An. 412.  whose Followers were Julianus and Coelestius, in the days of Arcadius or Honorius; this Pelagius was a Roman Monk, born in Armorica or Little Britain, who with his Disciple Coelestius spread his Heresies over almost all countries, viz. That Adam had died though he had not sinned: That his Sin did only hurt himself, and not others but in his Example: That Lust and Concupiscence, which is naturally in us, is Good, and nothing in it whereof we need be ashamed: That Infants neither have nor draw original Sin from their Parents: That the Infants of the Faithful, though not baptised, shall be saved, but shall remain without the Kingdom of God: That men have free Will sufficient to do Good, without the Grace of God: That Men by nature were able to fulfil the whole Law of God. Howbeit more easily and better if they were supported by the Grace of God: They denied original Sin, and said that the posterity of Adam were Sinners by imitation of Adam's Sin, but had not received Sin by carnal Propagation: That Children had no need to be baptised for Remission of Sins, and that the godly Fathers in Scripture, when they confessed their Sins, they did it rather for example of Humility, than for necessity, or guilt of Sin. These Heresies have in all ages been confuted by many Learned and Eminent Divines and were condemned by many Councils, specially in the Council of Carthage.  
Pepusiani, 
An. 182.  they were of Pepuza, a Town of Phrygia, between Galatia and Cappadocia; they held (beside other Heresies of Montanus) that Pepuza was the Heavenly Jerusalem mentioned by St. Paul, Heb. 12. and in the Revelation c. 2. 1.  
Petrus Abelardus, a French man, he held vile things concerning the Blessed Trinity, that the Holy Spirit was the Soul of the World, and that he was not of the Substance of the Father. This was in the twelfth Century.  
Photinus' Bishop of Syrmium in Illyria, 
An. 346.  a Disciple to Marcellus: he held that Christ's Kingdom was not everlasting, began at his birth, and should end at the day of judgement. He was condemned in the Council of Sardis. Socrat. Eccles. Hist. lib. 2. cap. 9  
Praxeas, 
An. 204.  he was Author of the Monarchici and Patrispassiani; he held that God the Father only suffered.  
Priscilianistae, 
An. 382.  from Priscilianus, a man of Noble birth in Spain: he confounded the Persons in the Trinity: Held fond opinions concerning the Creation: That man's Soul was of the same Essence with God: That Man's life was ruled by the Planets: That Perjury and Lying were lawful, to hid a man's Religion: He forbade eating of Flesh, and condemned Marriage, but allowed Fornication, and renewed the heresy of the gnostics; this was in the days of the Emperor Gratianus and Valentinian; he was executed at Trevers as a Sorcerer. Hist. Magd. Cent. 4. c. 11.  
Proclinianitae, 
An. 281.  of one Proclus, who (besides other Heresies of the Seleuciani) held that Christ was not come in the Flesh.  
Quartodecimani, 
An. 195.  they held that Easter was to be observed on the fourteenth Moon; and upon what day soever that Moon happened (though Sunday) they fasted: They refused to admit and receive those who had lapsed after Baptism.  
Sabellius an African, 
An. 256.  he and his followers confessed, that there was but one God only, but they denied that there were three distinct Persons in that one Godhead: They not only confounded, but took away the Persons in the Trinity: He was the Founder of the Photinean's heresy: They were called Patrispassiani, because their Opinion imported that the Father suffered; this Sabellius was for his heresy excommunicated.  
Samosatenus, Bishop of Antioch, he denied the Divinity of the Son of God, affirming that Christ obtained the Name of the Son of God through his virtuous Behaviour and patiented Suffering, but that he was not naturally and truly the Son of God, begotten of the Substance of the Father: He abrogated the Psalms sung in the Church, and hired Women there to sing his own Praises: He was deposed by a Council at Antioch, and excommunicated by all the Christian Churches in the World. This was (as some affirm) not in the second but third Century.  
Suturnianis, 
An. 130.  from one Saturnine of Antioch, who with Basilides the Egyptian, shared the heresy of Simon in two parts; this Saturnine held that his Disciples, though living dissolutely, might be saved by faith in him: That the World and Man were Created by seven Angels praeter voluntatem Dei: That Christ's Body was fantastical: That there was one God of the Jews, another of the Christians: That at the Beginning a Good and a Bad man were created, and that from the Good came good men, and from the Bad came evil men: That Marriage was a doctrine of Devils: That men must abstain from things that had life: That some of the Old Prophets were of the Devil: and lastly they denied the Resurrection of the Body.  
Secundiani, 
An. 154.  of Secundus, who was the chief Disciple of Valentinian the heretic, and held all his Heresies, and allowed his Followers all filthiness of Life.  
Seleuciani or Hermiani from Seleucius and Hermias, they most abominably held, that the Mass whereof God created the Elements was Coeternal with himself: That the Angels, not God, created the Souls of Men. That Christ in his ascension unclothed himself of the Flesh of Man, and left it in the Globe of the Sun: They received not Baptism by Water: They denied the Resurrection of the Body, supposing that by new Generations, one succeeding another, that is performed which in Scripture is written concerning the Resurrection.  
Sethitae, 
An. 172.  another Branch of Valentinian in Egypt: They held that Angels begat men in the beginning: They attributed to Seth the Honour due to our Saviour, and denied the Resurrection of the Body.  
Severus, 
An. 190.  Successor to Apelles in the School of Martion, his Heresies were spread in East Syria: They forbade the use of Wine: rejected the Old Testament and the Prophets, using Apocryphal Books of their own: Denied the Resurrection: Ascribed the Creation to Angels. Detested Women as works of the Devil: and used magic.  
Simon Magus, 
An. 41.  said to be the Father of heretics, he was Magician and an Hypocrite, though baptised by Philip the Apostle: he spread his heresies at Rome, where he grew so famous, that the people erected an Image to him with this Inscription, Simoni deo Sancto: he most blasphemously affirmed himself to be true God: That the World was Created by Angels: he denied that Christ was either come or suffered: he denied also the Resurrection of the Body: he brought in the promiscuous use of women, and used the company of one Helena, whom he blasphemously gave out to be the Holy Ghost, and that he begat Angels of her: he taught his Disciples to worship Images, his own Image, and the Image of Helena, who accompanied him from Asia to Rome: he attempted to show his power in flying, and with a fall broke his Thigh, and died miserably.— Iren. l. 1. c. 30. Aug. Epiph. Theod.  
Swenkfeldius, born in Silesia, he held that the outward Ministry of the Word and Sacraments was not necessary to eternal life, because that by the illumination of God's holy Spirit, without the Ministry of the word, men might be saved.  
Tatian, 
An. 165.  he held that Adam was damned, called Marriage Fornication, prohibited eating of flesh and drinking of wine, he held many Gods, denied Christ to be born of David's Seed, and condemned the Law of Moses; he was Author of the Euchratitae.  
Theodatus, a Cataphrygian, a poor Currier of Constantinople, he held that Christ was but man, and begotten by man; besides which blasphemy he altered the Gospel according to his own fancy. The Theodatiani denied the Divinity of Christ, for when Theodatus having in time of persecution denied Jesus Christ, was reproved for the same, 
An. 194.  he answered, that he denied not God, but Man, signifying thereby, that Christ was only Man, and not God manifested in our Nature.  
Theopaschitae, they held that the Divinity of Christ suffered. This heresy lasted long, 
An. 338.  and was maintained afterward by Eutyches and Dioscorus.  
Triformiani, they held the Divine Nature one and the same in the three persons together, 
An. 407.  but imperfect in the several persons.  
Tritheitae, they held that the Nature and Essence of God was threefold, 
An 606.  and not one and the same. Johannes Grammaticus (called Philoponus) was the Founder of this heresy.  
Valentinian, 
An. 153.  an Egyptian, he held plurality of Gods, of both Sexes: a multitude of Heavens and eternity's: that Christ assumed nothing from the Virgin, but passed through her as by a Pipe: That he saved Souls only: That the World was made by evil Angels: he denied the Resurrection: despised good works, as unprofitable, and lived of things sacrificed to Idols. Against him Irenaeus wrote Five Books.  
Valesii, 
An. 250.  of one Valens an Arabian; They held that none could be saved, but such as made themselves Eunuches, detested Marriage, but allowed all filthy Acts, yet gelded themselves.  
Venustiani, so called of their lascivious behaviour; They were the same heretics that were called Paterniani from Paternus their Founder, and held the same blasphemous and damnable heresy.  
Vigilantius, 
An. 406.  an Apostate Monk, he declined Churches, and condemned Virginity, and Spiritual exercises. St. Jerome wrote against him.  
(9) All these heretics do commonly pass under the notion of Christian heretics, whereas in truth they may more properly be termed Antichristian; yet they are styled Christian heretics in distinction to the Jewish heretics, of which sort were the Pharisees, the Sadduces, the Hessees, the Galilaeans, the Hemerobaptists, the Nazaraeans, the Ossens, the Sampsaeans, the Massalians, the Herodians, the Genites, the Merissaeans, the Coelicolae, the Ophitae or Serpentines, the Caiani, the Sethiani, the Heliognosti, the Frog-worshippers, the Accaronites, the Thamuzites, the Samaritans, with many others, out of which, or some of them, came that cursed Brood of heretics which poisoned a great part of the World in the succeeding Generations,  
The Pharisees (from Phares, division, or separation, because they would be accounted Separatists from all others 
a Epiphan. Origen. Ambros. in Luc. l. 3. Damasc. de Heres. Suidas. , attributed all things to Fate; they believed that God disposed all things, but the stars helped, yet so as Free Will was left in the hand of Man. They held Transmigration of good Souls, or going into other Bodies; they conceived that he which kept most of the Commandments, although he transgressed in some, was just before God, with innumerable Pharisaical, Proud and Hypocritical conceits and actions.  
The Sadduces (either from Sedec, Justice, because they were fevere and rigorous in judgement 
b Epiph. haer. 14. Lyra. in Act. 5. ; or of one Sadoch, the first inventor of their heresy 
c Burgens. Addit. 1. in Epist. Jac. 2. 10. ; or from both 
d Serarius. ;) These Sadduces were called Minim or Minei, that is heretics. They interpreted the Scriptures after their own Sense, and rejected Traditions; they denied a future Reward, and consequently the Resurrection; they denied also the subsistence Spiritual; they cooped up God in Heaven, without all beholding of evil; They denied Spirit altogether; for they held God to be corporeal 
e Lyra. in Acts. 23. ; the Soul to die with the Body; the denied Angels and Devils; they ascribed good and evil to a man's Free Will.  
The Hessees, Essees, or Essens (either from a word which signifieth Rest, or Quietness, and Silence 
f Scalig. Elench. c. 26.  or Essaei quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Holy 
g Philo. . They are placed by Pliny on the West of the Dead Sea 
h Plin. l. 5. c. 17.  a people solitary, without women, without Money, they make no weapon of war, nor meddle with merchandise; they have no servants, but are all both free and mutually servants to each other; they live perpetually chaste, counting continence and contentment great virtues; they swear not at all, and have all things Common; they avoid pleasures and riches as sins; they marry nor, yet do not deny the lawfulness of Marriage, but the honesty of Women; they eat oil and Neatness, yet always wear a white Garment; they neither buy nor sell, but mutually communicate; they were worshippers of the Sun, for before the Sun riseth, they speak of no worldly matter, but celebrate certain Prayers, as praying him to rise; they hate an Oath no less than Perjury; they keep the Books of their own Opinions, and the names of the Angels; they give no Sentence of Judgement, being fewer than one hundred 
i Joseph. de Bell. Jud. l. 2. c. 7. ; they will not so much as purge Nature on the Sabbath, for fear of profaning it thereby 
k Scaliger. .  
The Galilaeans, their Doctrine was, that only God was to be accounted their Lord and Prince, and would rather endure any the most exquisite Tortures, than call any mortal man their Lord; in other things they agreed with the Pharisees 
l Joseph. de Antiq. l. 18. c. 2. de Bell. Jud. l. 2. c. 7. .  
The Hemerobaptists, so called from their being baptised or washed every day at all times of the year; they were in their Doctrine of the Resurrection, and in Infidelity like unto the Sadduces; in other things they differed not from the Scribes and Pharisees 
m Epiph. haer. 17. .  
The Nazaraeans, they would not eat any thing which had life, and held it unlawful to eat Flesh: They disallowed the five Books of Moses: They placed all Righteousness in Carnal Observations: And professing to imitate Samson, they nourished the hair of their head, placing all their virtue therein 
n Philastrius. de haer. .  
The Ossens were an Issue of the Ancient Essens, holding some things of theirs, as concerning the worshipping of Angels, and of the Sun, adding thereto other Heresies of their own 
o Epiph. haer. 19 .  
The Sampsaeans would not admit either the Apostles or the Prophets: They worshipped Water, esteeming it as a God, believing that life is from thence 
p Epiph. haer. 53. .  
The Massalians were a Slip of the Essees, but after by Marriage with some Pseudochristians, of Jewish became Christian heretics 
q Scal. ele. c. 28. .  
The Herodians thought Herod to be the Messiah, and entered into society for costs and charges in Common, to be bestowed on Sacrifices and other Solemnities, wherewith they honoured Herod alive and dead 
r Scal. ad Euseb. p. 150. .  
The Genites or Genists stood upon their Stock and Kindred, because in the Babylonish captivity, or after, they married not strange Wives, and therefore boast themselves of the purity of Abraham's seed 
s Bridenb. .  
The Merissaeans or Merists were (as the name imports) sprinklers of their Holy Water; they made a division of the Scriptures, and received only some part thereof 
t Idem B●●●denb. .  
The Coelicoli were also an offspring of the Essees, and from these proceeded the Massalians, they were Jews, though they corruptly embraced Christianity; and being baptised, revolted to their former Judaisme, and retained the Rites of these Coelicolae, or Heaven-worshippers; they had their places of prayer abroad in the open air 
v Scal. Elench. trib. Serar. c. 31. .  
The Ophitae or Serpentines worshipped a Serpent, saying, that he first procured us the knowledge of Good and Evil, for which God envied him, and cast him from the first Heaven into the second, whence they expect his coming, esteeming him some virtue of God, and to be worshipped, 
w Philastr. l. de Haeres.   
The Caiani, which commend Cain for Fratricide, saying that Cain was made of the power of the Devil, Abel of another power, but the greatest power was in Cain to slay Abel 
x Philastr. .  
The Sethianis were worshippers of Seth the Son of Adam, who affirmed, that two men being created in the beginning, and the Angels dissenting, the Feminine power prevailed in Heaven (for with them they held are Males and Females, Gods and Goddesses) Eve perceiving that, brought forth Seth, and placed in him a Spirit of great power, that the adversaries power might be destroyed. Of Seth they held, that Christ should come of his Stock; yea some of them conceived him to be the very Christ 
y Id. Philast. .  
The Heliognosti were such as worshipped the Sun, and held that the Sun knew all the things of God, and yielded all necessaries to men.  
The Frogg-worshippers were such as held, that worship was due to those croaking Creatures, thereby thinking to appease Divine Wrath, which in Phara●h's time brought Frogs upon the Land of Egypt.  
The Accaronites were such as held that worship was to be performed unto a fly, and did worship it accordingly; probably for the same blind reason that others of them worshipped Frogs; for Divine Wrath was executed by the one as well as by the other.  
The Thamuzites, of Thamuz, the Son of a heathen King; they held that his image was to be worshipped and abroed; accordingly the Jewish Women that were bewitched with this heresy, worshipped this image of Thamuz with Tears and continual Sacrifices; and held further that Pharaoh which ruled in Egypt in Moses his time, was of that Name.  
The Samaritans were those Jewish heretics, who held (especially the Cuthaeans among them) an abstinence from pollution by the Dead, or Bones, the Slain, & the sepulchers; they held washing their bodies & changing their vestments, when they enter into the Synagogue; they held such Heretical opinions, that the other Jews would have no deal with them; they held that only the five Books of Moses were Canonical Scripture, the rest they received not; they held that neither the Trinity, nor the Resurrection was to be acknowledged; they washed themselves with Urine, when they came from any stranger, being thereby (as they held) polluted; they held themselves profaned by the touch of one of another Faith; & therefore if they touched one of another Nation, they dived themselves, garments and all in Water; they held a dead corpse in abomination presently 
z Epiph. Haer. 9 . If they met a Jew, or Christian, they said Touch me not 
a Drus. de 3. Sect. l. 2. . They call themselves Men which belong to the Blessed Hill. They abstained from things that have life, and some of them from Marriage. One Dosithens a Samaritan is supposed to be the first Founder of the Samaritam Heresies, and the first among them that rejected the Prophets, as not having spoken by the Holy Ghost 
b Tert. praescrip. advers. Haer. l. 1. . There were four sects of Samaritan heretics, according to Epiphanius, each of them holding their different Heresies in some respects, and having in other respects certain Heretical tenants common to them all. By all which premises it is most evident, that the Prince of Darkness, and the Father of lies hath had in all Ages, Nations, and Churches, his Emissaries to infect them with Heretical and Blasphemous Erros, but the Gates or Power of Hell to this day never could, nor to Eternity ever shall prevail against the Truth.   

CHAP. XLI.  
Of Councils, Synods, and Convocations.  

1. The several kinds of Councils and Synods.  
2. What Canons in force in the Realm of Primo. Ed. 6. Also how the Canons entitled Reformatio Legum Ecclesiasticarum became abortive.  
3. That part of the Canon Law, is part of the Law of England.  
4. Convocation in England, what how, and by what Authority, and for what ends convened; also of what Members it doth consist; with the Authority thereof.  
5. Convocations and Provincial Synods of very great Antiquity in England; have been ever called by the King's Writ; their privileges.  
6. The Canons and Ecclesiastical Constitutions may not be repugnant either to the King's Prerogative, or to the Laws, Statutes, or customs of this Realm.  
7. Lindwood's Method of Provincial Synods in this Realm, and under what Archbishops.  
8. The four several kinds of Councils and Synods in general.  
9 A compendious Catalogue thereof, when and where held, by and under whom convened, with the principal matters therein treated and determined.   
(1.) OF Councils or Synods there are four kinds, viz. (1) ecumenical, as being called out divers Nations. (2) National, as out of divers Provinces, both these kinds of Councils or Synods were ever assembled by Imperial, Regal, or Papal Authority. (3). Provincial, as out of divers Dioceses, convened by Metropolitans or patriarches. (4) Diocesan, as out of one Diocese only, assembled by the Bishop thereof. The frequent celebration of Synods the Council of Basil calls praecipuam agri Domini culturam Touching Synods vid. Duar. de Sacr. Eccl. minist. et benefic.  
(2.) In the Reign of King Hen. 8. the Bishops and Clergy in the Convocation an. 1532. obliged themselves neither to make nor execute any Canons or Constitutions Ecclesiastical, but as they were thereto enabled by the King's Authority; it was by them desired, by him assented unto, and confirmed in Parliament, that all such Canons and Constitutions Synodal and Provincial, as were before in use, and neither repugnant to the word of God, the King's prerogative Royal, or the known Laws of the Land, should remain in force until a Review thereof were made by 30 persons of the King's appointment; which Review not having been made from that time to the first year of King Edward 6. All the said old Canons and Constitutions so restrained and qualified, did then still remain in force, as before they were. For this consult the Act of Parliament of 25 H. 8. c. 1. And in the Third year of the said King Edward 6. there passed an Act in Parliament, For enabling the King to nominate Eight Bishops, and as many Temporal Lords, and Sixteen Members of the Lower House of Parliament, for Reviewing of such Canons and Constitutions, as remained in force by virtue of the Statute made in the 25th year of King H. 8. and fitting them for the use of the Church in all times succeeding. According to which Act the King directed a Commission to Archbishop Cranmer, and the rest of the Persons whom he thought fit to nominate to that employment; and afterwards appointed a Sub-Committee of Eight persons to prepare the Work and make it ready for the rest, that it might be dispatched with the more expedition: which said Eight persons were the Archbishop of Canterbury, Dr. Goodrick Bishop of Ely, Dr. Cox the King's Almoner, Peter Martyr Dr. in Divinity, William May and Rowland Taylor Drs. of Laws, John Lucas and Richard Goodrick Esquires; by whom the Work was undertaken and digested, fashioned according to the method of the Roman Decretals, and called by the name of Reformatio Legum Ecclesiasticarum, &c But not being Commissionated hereunto till the Eleventh of November in the year 1551. they either wanted time to Communicate to the chief Commissioners, by whom it was to be presented to the King, or found the King encumbered with more weighty Affairs, than to attend the perusal thereof. And so the King dying before he had given life unto it by his Royal Assent and Signiture, the design miscarried: 
Dr. Heyl. Hist. Eccl. de Temp. Ed. 6. p. 19 & 83.  and never since thought fit to be resumed in the following Times by any of those who have had the Government of the Church, or were concerned in the honour and safety thereof.  
(3.) It is asserted by good Authority, 
Case Edes verse. the B. of Oxford, in Sr. Jo. Vaughan's Rep. & Arg.  That if the Canon Law be made part of the Law of this Realm, than it is as much the Law of the Land, and as well, and by the same Authority, as any other part of the Law of the landlord. Likewise in the Case of Shute against Higden, touching avoidance of a Former Benefice by being Admitted and Instituted into a Second, and that by the Ancient Canon Law received in this Kingdom, This (says the same Authority) is the Law of the Kingdom in such cases And in the Case of Hill against Good the same Author doth further assert, That a 
* Lawful: it must also be supposed to be received into use and practice.  Lawful Canon is the Law of the Kingdom, as well as an Act of Parliament: And whatever is the Law of the Kingdom, is as much the Law, as any thing else is so; for what is Law, doth not suscipere magis & minus 
a Sr. J●. Vaughan's Rep. & Arg.  Which premises, though they may seem, yet are not inconsistent with what Sr. Ed. Coke says, viz. That the Laws of England are not derived from any foreign Law, either Canon, Civil, or other, but a special Law appropriated to this Kingdom 
b Co. Inst. p. 3. ●. p. 36. ; That it may be said of its Law as of its situation, Et penitus toto divisos Orbo Britannos.  
(4) Convocation is the highest Ecclesiastical Court or Assembly, called and convened in time of Parliament by the King's Writ, directed to the Archbishops, consisting of all the Clergy of both Provinces, either Personally or Representatively present, in the Upper House of the Archbishops and Bishops, and the Lower House of the other Clergy or their Proctors, chosen and appointed to appear for Cathedral or other Collegiate Churches, and for the Common Clergy of every diocese, with a Prolocutor of each House, and precedent of the Convocation for the Province of Canterbury, to consult of matters Ecclesiastical, and thereon to Treat, Agree, Consent, and Conclude (as occasion requires) on certain Constitutions and Canons Ecclesiastical, to be ratified and confirmed by the Royal Assent 
c F. N. B. 269. b. Co. Inst. ●. Sect. 133. 21 H. 8. 1. 32 H. 8. 23. 33 H. 8. 31. Co. Inst. p. 4. ●. 74. . They were Anciently called Church-gemote. Int. Leges H. 1. c. 8. The Convocation is under the power and Authority of the King, 21 Ed. 4. 45. b. Assembled only by the King's Writ. 13 Ed. 3. Rot. Parl. M. 1. vid. Stat. 25 H. 8. c. 19 The King having directed his Writ (therein assigning the time and place) to each of the Archbishops to the effect aforesaid, the Archbishop of Canterbury doth thereupon direct his Letters to the Bishop of London, as his Dean, Lindw. Provin. Sec. 1. de Poenis. ver. Tanquam in Gloss. First Citing himself peremptorily, then willing him to Cite in like manner all the Bishops, Deans, archdeacon's, Cathedral and Collegiate Churches, and generally all the Clergy of his Province to the Place at the day in the said Writ prefixed, withal directing that one Proctor for every Cathedral or Collegiate Church, and two for the other Clergy of each diocese may suffice. In pursuance whereof the Bishop of London directs his Letters accordingly, willing them to certify the Archbishop the Names of all such as shall be so Monished by them, in a Schedule annexed to their Letters Certificatory; whereupon the Cathedral and Collegiate Churches, and the other Churches having Elected their Proctors, it is certified to the Bishop, who makes due Returns thereof; which method is likewise observed in the other Province of York. It is said, That these Proctors anciently had Place and Vote in the Lower House of Parliament 
d 21 R. 2. c. 2. & 12. Cow. Inter. ver. Proctors. ; a good expedient for the maintenance and preservation of the Liberties of the Church. The Prolocutor of the Lower House of Convocation, is immediately at the first Assembly by the motion of the Bishops, chosen by that Lower House, and presented to the Bishops as their Prolocutor, by whom they intent to deliver their Resolutions to the higher House, and to have their own House specially ordered and governed: His Office is to cause the Clerk to call the Names of the Members of that House, as oft as he shall see cause; likewise to see all things propounded to be read by him, to gather the Suffrages or Votes, and the like. Trin. 8 Jac. It was Resolved by the two Chief Justices, and divers other Justices at a Committee before the Lords of Parliament, concerning the Authority of a Convocation, (1) That a Convocation cannot Assemble without the Assent of the King. (2) That after their Assembling, they cannot confer to constitute any Canons without licence del Roy. (3) When upon Conference they conclude any Canons, yet they cannot execute any of them without the Royal Assent. (4) They cannot execute any after Royal Assent, but with these Limitations, viz. (1) That they be not against the King's Prerogative: (2) Nor against Statute Law: (3) Nor against the Common Law: (4) Nor against the customs of the Realm. All which appears by 25 H. 8. c. 19 19 Ed. 3. Title Quare non Admisit, 7. 10. H. 7. 17. Merton, cap. 9— By 2 H. 6. 13. a Convocation may make Constitutions to bind the Spiritualty, because they all in person or by Representation are present, but not the Temporalty. Q. 
Q. Trin. 8 Jac. Convocation Case. Coke lib. 12.  And 21 Ed. 4. 47. the Convocation is Spiritual, and so are all their Constitutions. Vid. The Records in Turri, 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua, etc. attemptet contra jus seu Coronam, etc. By which it appears, that they can do nothing against the Law of the Land, or the King's Prerogative.  
(5.) The word [Convocation] and the word [Synod] are rather words of two Languages, than things of two significations; for although, they have different derivations, the former from the Latin, the other from the Greek, yet in effect they both centre in the same thing. Convocation à Convocando, because they are called together by the King's Writ. It is of very great Antiquity according to Sir Edward Coke, 
Co. Inst. p. 4. cap. 74.  who mentions out of Mr. Bede and other Authors and ancient Records, such as were nigh a thousand years since, and more expressly of one great Synod held by Augustine's Assembling the Britain Bishops in Council, An. 686. 
d N●wburgh, l. 2. c. 13. Bract. l. 3. fo. 173, 124. 6 H. 3. Hol. 203. Rot. Par. 18 Ed. 3. nu. 1. & Rot. Par. 2 H. 4. nu. 29 F. N. B. 269. 8 H. 6. c. 1. Co. Inst. pag. 4. cap. 74. . And affirms, That the Clergy was never Assembled or called together at a Convocation, but by the King's Writ 
e 18 Ed. 3. nu. 1. 13 Ed. 3. Rot. Par. 16. 24 Do. l. Cla●. 17. Ed. 3. nu. 30, 31. 25 H. 8. 1. . And in the year 727. there was a Convocation of the Clergy, called Magna Servorum Dei frequentia 
f Int. L●ges 〈◊〉 An. 727. Co. ubi supr. . It was by the assistance and authority of Ethelbert, the first Christian King of Kent, that Austin called the aforesaid Assembly of the British Bishops, and Doctors, that had retained the Doctrine of the Gospel, to be held in the borders of the Victians and westsaxons, about Southampton, as supposed, to which resorted (as Mr. Bede says) Seven Bishops, and many other Learned Divines; but this Synod or Convocation suddenly broke up without any thing done or resolved 
g Bede Hist. l. 2. c. 2. Galfrid. l. 8. c. 4. . This Assembly was convened for determining the time for the Celebration of Easter; touching which the controversy continuing no less than 90 years after, was at last concluded at another Convocation purposely called at Whitby by the Authority of Oswy King of Northumberland, and whereof the Reverend Cedda, newly Consecrated Bishop, was Prolocutor, and King Oswy himself present at the Assembly 
h Bede Hist. lib. 3. cap. 25. . Likewise about the year 1172. at Cassils' in Ireland a Convocation was held by Authority of King H. 2. soon after he had Conquered that Island, which Convocation was for the Reformation of the Irish Church, where amongst many other Constitutions it was Decreed, That all the Church-Lands, and all their Possessions, should be altogether free from the Exaction of Secular men, and that from thenceforth all Divine things should be handled in every part of Ireland in such sort, as the Church of England handleth them 
i Giral. Cam. l. 1. Hib. c. 31. & 34. . Likewise about the year 1175. at London a Synod or Convocation was held, at which King H. 2. was present, where among other Canons and Constitutions, it was both by Authority of the King and Synod decreed, That every Patron taking a Reward for any Presentation should for ever lose the Patronage thereof 
k Hoved. in H. 2. fo. 310. . Which together with other Canons then made for the better government of the Church of England, were Published by Richard Archbishop of Canterbury, with the King's Assent 
l Gervasins. Rog. Hoved. . Likewise a Provincial Synod was held at Oxford by Stephen Langton Archbishop of Canterbury under King H. 3. about the year 1222. for Reformation of the Clergy 
m Walsingh. in Ypod. Ranulph. Cestr. l. 7. c. 34. , with many others, in subordination to the Laws of the landlord. One special privilege of the Convocation appears by 8 H. 6. cap. 1. All the Clergy from henceforth to be called to the Convocation by the King's Writ, and their Servants and Familiars shall for ever hereafter fully use and enjoy such liberty and Immunity in coming, tarrying, and returning, as the Great men and Commonalty of the Realm of England, called or to be called to the King's Parliament, have used or ought to have or enjoy. 8 H. 6. In Parliamento Statutum est, ut Praelati atque Clerici, c●rumque Famulatus, cum ad Synodos accesserint, iisdem Privilegiis ac Immunitatibus gaudeant, quibus Milites & Burgenses Parliamenti. Ant. Brit. fo. 284. nu. 30.  
(6.) The Jurisdiction of the Convocation in this Realm, though relating to matters merely Spiritual and Ecclesiastical, yet is subordinate to the established Laws of the Land; it being Provided by the Statute of 25 H. 8. c. 19 That no Canons, Constitutions, or Ordinances shall be made or put in execution within this Realm by Authority of the Convocation of the Clergy, repugnant to the Prerogative Royal, or to the customs, Laws, or Statutes of this Realm. To the same effect was that of 9 Ed. 1. Rot. Parl. Memb. 6. Inhibitio Archiepiscopo, & omnibus Episcopis, & aliis Praelatis apud Lambeth Conventuris, ne aliquid statuant in praejudicium Regis, Coronam, vel dignitatem. For although the Archbishop and the Bishops, and the rest of the Clergy of his Province, 
20 H. 6. 13. Newton.  Assembled in a Synod, have power to make Constitutions in Spiritual things, yet they ought to be Assembled by Authority of the King, 
St. 25 H. 8. c. 19  and to have (as aforesaid) his Royal Assent to their Constitutions; which being had and obtained, the Canons of the Church, made by the Convocation and the King, without Parliament, shall bind in all matters Ecclesiastical, as well as an Act of Parliament, as was Resolved in Bird and smith's Case 
n Bird vers. Smith. Moor's Rep. . Although the Saxons, who founded and endowed most of our Churches, and made many good Laws in reference to the Jurisdiction power, and privileges thereof; yet the Royal Prerogative, with the Laws and customs of the Realm, were ever so preserved, as not to be invaded thereby: King AEthelbert the first Saxon King, King Ina, AEthelstane, Edmund, Edgar, and King Kanute, all these made Laws in favour of the Church, but none of them ever entrenched on the Prerogative of the Crown, or on the Laws, or customs of the Realm; nor any of those ancient Church-Laws ever made without the supreme Authority to ratify and confirm the same.  
(7.) The Laws and Constitutions whereby the Ecclesiastical Government is supported, and the Church of England governed, are the General Canons made by General Councils, also the Arbitria Sanctorum Patrum, the Decrees of several Archbishops and Bishops, the Ancient Constitutions made in our several Provincial Synods, either by the Legates Otho and Othobon, or by several Archbishops of Canterbury. All which by the 25 H. 8. are in force in England, so far as they are not repugnant to the King's Prerogative, the Laws and customs of England. Also the Canons made in Convocations of Later times, as Primo Jacobi Regis, and confirmed by his Regal Authority: Also in some Statutes Enacted by Parliament touching Ecclesiastical affairs; together with divers customs not written, but in use beyond the memory of Man; and where these fail, the Civil Law takes place. Among the Britain Councils (according to Bishop Prideaux his Synopsis of Councils, Edit. 5.) those amongst the rest are of most remark, viz. At Winchester, in King Edgar's time under Dunstane: at Oxford, by Stephen Langton Archbishop of Canterbury: at Claringdon under King Henry the Second. The Council under King Edward the 6 th'. in which the 39 Articles of the English Confession was concluded and confirmed. The Synod under the same King, from which we receive the English Liturgy which now we have, composed by Seven Bishops and Four Doctors, and confirmed by the public consent of the Church, which (as also the said 39 Articles) the succeeding Princes, Queen Eliz. King James, and King Charles, ratified and commended to Posterity. At London a Synod, in which 141 Canons or Constitutions, relating to the pious and peaceable Government of the Church, presented to King James by the Synod, and confirmed by his Regal Authority: and at Perth in Scotland, where were Articles concerning administering the Sacrament to the Sick, Private Baptism where Necessity requires, Confirmation, admitting Festivals, Kneeling at the Receiving the Sacrament, and an allowance of Venerable customs. But the Concil. Britan. vid. D. Spelman. The Ancient Canons of the Church and Provincial Constitutions of this Realm of England, were according to Lindwood the Canonist (who, being Dean of the Arches, compiled and explained the same in the time of King H. 6.) made in this order or method, and under these Archbishops of Canterbury, viz. The Canons or Constitutions  
1. Of Stephen Langton, Cardinal, Archbishop of Canterbury, in the Council at Oxford, in the year of our Lord 1222, who distinguished the Bible into Chapters.  
2. Of Otho, Cardinal, the Pope's Legate in Anno 1236. on whose Constitutions John de Athon Dr. of Laws, and one of the Canons of Lincoln, did comment or gloss.  
3. Of Boniface Archbishop of Cant. 1260.  
4. Of Othobon, Cardinal of St. Adrian, and Legate of the Apostolical Chair; on whose Constitutions the said John de Athon did likewise Glossematize. His Canons were made at London in Anno 1268.  
5. Of John Peckham, Archbishop of Canterbury; at a Synod held at Reding, An. 1279.  
6. Of the same Peckham, at a Synod held at Lambeth, An. 1281.  
7. Of Robert Winchelse, Archbishop of Canterbury, An. 1305.  
8. Of Walter Reynold, Archbishop of Canterbury, at a Synod held at Oxford, An. 1322. These Constitutions in some Books are ascribed to Simon Mepham, but erroneously; for the date of these Constitutions being An. 1322. the said Walter Reynold (according to the Chronicle) died in An. 1327. and was succeeded by Simon Mepham.  
9 Of Simon Mepham Archbishop of Cant. An. 1328.  
10. Of John Stradford, Archbishop, An. 13 ...  
11. Of Simon Islepe, 
Sudbury, L. Chancellor, he was Beheaded by the Rebels of Wat. Tyler. Arundel, Lord Chanc. Chichley, Cardinal.  Archbishop, An. 1362.  
12. Of Simon Sudbury, Archbishop, An. 1378.  
13. Of Tho. Arundel, Archbishop, at a Synod or Council held at Oxford, An. 1408.  
14. Of Henry Chichley, Archbishop, An. 1415.  
15. Of Edmond, Archbishop of Canterbury.  
16. Of Richard, Archbishop of Canterbury.  
The Dates of the Canons or Constitutions of these Two last Lindwood makes no mention, by reason of the uncertainty thereof; but withal says, it is clear, That Richard did immediately succeed the foresaid Stephen Langton, and the said Edmond succeeded Richard. Lindw. de Poen. c. ad haec. & infra, in verb. Mimime admittatur. If so, than it was most probably Richard Wethershed, who was Archbishop of Canterbury, An. 1229. And St. Edmond Chancellor of Oxford, who was Archbishop of Canterbury, An. 1234. 
r H●yl. Hist. verb. Canterbury. .  
(8.) Councils were either General, or ecumenical from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, whereunto Commissioners by the Emperor's Authority were sent from all quarters of the World, where Christ hath been preached: Or National: 
National, are such as comprehend the Provincials of every Metro sitan or Diocesan Bishop within their own Limits.  or Provincial: or Particular, by Bullenger called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; such were the Councils of Gangra, neocaesarea, and many others, commonly Assembled by patriarches and Bishops in some particular place of a country. The ends of these Councils chief were, either for the suppression of Heresies, the decision of Controversies, the appeasing of Schisms, or the Ordaining of Canons and Constitutions for decency of Order in the Church. Vid. AElfrici canon's add Wulfinum Episcopum. Can. 33. where it is said, That there were Four Synods for the defence of the True Faith against those heretics, who belched out their Blasphemies against the Holy Trinity, and the Humane Nature of our Saviour; the First whereof was at Nice: another after that at Constantinople, consisting of a hundred and fifty Bishops: the Third at Ephesus, of two hundred Bishops: the Fourth at Chalcedon, where many hundreds of Bishops were present; and they all with an unanimous Consent confirmed all those Decrees which were made in the Nicene Council. These Four Synods (says the said Canon) are so to be observed by the Church of Christ, ut Quatuor Christi Codices. There were many other Synods about the same time, but these Four were of the best Authority.  
At Jerusalem in the First Century the Apostles, 
At Jerusalem, Cent. 1.  Elders, and Brethren held a Council against some Pharisees touching Circumcision, in the Fourth year of the Reign of the Emperor Claudius. The Apostles celebrated also certain Councils for the substituting of Mathias in the place of Judas, Act. 1. For the Election of Seven Deacons— Act. 6. For not pressing the Ceremonial Law, Act. 15. 11 For the toleration of some Legal Observations only for a time, Act. 21. 18. To these some will have to be added a Meeting by the Apostles, wherein was composed the Apostles Creed. Also another Assembly of the Apostles, which did obtrude to the Church 85 Canons under the notion of the Apostles Authority, concerning which there are various Controversies. In this Century there were also Two Synods summoned in Asia, for the Reformation of the Churches, and Consecration of Bishops, at which John the Evangelist was present. Euseb. lib. 3. cap. 20.  
At Ancyra in Galatia in the Second Century was Assembled a Synod of divers Bishops, 
At Ancyra, Cent. 2.  wherein the Figments of Montanus were confuted. In this Synod Montanus was Excommunicated, and his heresy condemned. Euseb. lib. 5. cap. 14. In this Century, viz. An. 195. Six several Synods were held about the Observation of Easter, viz. At Rome in victor's time: at Caesarea in Palestina: at Pontus: in France, where Irenaeus was chief: in Ostroena and at Ephesus. In all which Synods it is observed, That the Bishop of Rome had no more Authority than the other Bishops. Euseb. lib. 5. cap. 23.  
In the Third Century there were Eight or Nine Synods of Remark, viz. 
Euseb. l. 6. c. 32. At Bostra, Cent. 3.  At Bastra, where Beryllus was confuted by Origen: at Rome in the time of Fabianus, where the Schism of Novatus was removed: another at Rome in the time of Cornelius, wherein Novatus the heretic was condemned: 
Ibid. cap 42. Ibid. c. 45. Id. lib. 7. c. 3. Ibid. c. 6.  at Antioch, where Novatus was condemned again: at Carthage, which erred about the rebaptising of heretics: at Iconium, for receiving of heretics after Repentance: at Antioch again, where Samosatenus was condemned; this was about the Twelfth year of Galienus: Another at the same place under Aurelianus, 
Ibid. cap. 26, 28, 29.  where he was condemned again, and deprived of his Church. And at Sinuessa, consisting of 300 Bishops, where Marcellinus Bishop of Rome was condemned for denying Christ, and sacrificing to Idols. Tom. 1. Council.  
At Ancyra in the Fourth Century, 
At Ancyra, Cent. 4. An. 308.  about the year 308 were assembled Bishops of divers Provinces, to constitute a form of Ecclesiastical Discipline, according to which they who had Sacrificed to Idols in time of Persecution, were to be received again upon their Repentance. In this Council also it was Ordained, That Chorepiscopi, that is, Countrey-Bishops, or Vicarii Episcoporum, should abstain from Ordination of Elders and Deacons, and from usurping of dominion over the Preaching Elders, who were in Cities. This Council was subscribed by Eighteen Bishops.  
At Nicaea in Bythinia, 
The first, at Nice, An. 330, or 333.  Assembled by the Authority of Constantine the Great, a General Council, consisting of 318 Bishops: The exact time when it began Historians do not agree, some conceive it was A. D. 325. So Hillar. Socort. l. 2. c. 29. Others, 359. So Baron. N. 
Euseb. de vita Constant. lib. 3.  27. Others, 330. and others refer the year to 333. But Eusebius computeth it to be in the Twentieth year of Constantine's Reign. It was also in the time of Julius the First, and Silvester, Popes. Three things especially are reported to be condemned by this Famous Council. 1. The Arrian heresy, Blasphemously denying to Son to be coeternal and coessential with the Father. 2. The dissent of the Eastern from the Western Christians about the celebration of the Passover, in a manner different from the Jewish custom; and it was concluded in this Council, That the Feast of Easter should be kept on the Lord's Day, and not on the Fourteenth day of the First Month of the Jews called Nisan. 
Ruffin. l. 1. c. 6.  3. The Schismatical dissensions of the Melitians and Novatians. In this Council the Emperor burned all the Accusations which the Bishops brought against each other, as unworthy to be seen. Of this Council it is anciently Recorded, That Constantinus Imperator congregavit in Nicaea Civitate 318. Episcopos ex omnibus Nationibus ad Confirmandum fidem Catholicam. Ita in Tertio Can. AElfrici ad Wulfin. Episcop.  
At Tyrus in the Fourth Century was convened a National Council by Constantine the Emperor, 
At Tyrus Cent. 4.  in the Thirtieth year of his Reign, wherein were 60 Bishops from Egypt, Lybia, Asia, and Europe; the major part whereof were Arrians, who charging Athanasius with false Accusations, deposed him in his absence; whose Deposition Arsenias subscribed with the same hand, 
Socrat.  which the Arrians alleged was cut off by Athanasius.  
At Gangra in Paphlagonia about the year 324. 
At Gangra. An. 324.  were assembled about Sixteen Fathers; in which Council were damned the heretical Opinions of Eustathius, who admiring the monastic life, or favouring the heresy of Eucratitae and the Manichaeans, spoke against Marriage, and eating of Flesh, and damned the public Congregations for the Service of God in Temples, saying, a man could not be saved unless he forsook all his Possessions.  
About this time there was a Council at Antiochia, 
At Antioch.  wherein the Arrians deposed Eustatius. As also a Council at Arles, wherein Cecilianus was absolved from the Accusation of the Donatists. 
At Arles.   
At Eliberis in Spain in the time of Constantine's Reign, 
At Eliberis.  were assembled 19 Bishops and 36 Presbyters. Among the 81 Canons made in this Synod, it was Ordained in the 36 Canon, That nothing that is worshipped should be Pictured on a Wall; and that in Private Houses no Idols should be found.  
At Carthage, 
At Carthage.  the First Council there (wherein St. Cyprian, with the Advice of many other Bishops of Numidia, Lybia, and other parts of Africa, Ordained those who were baptised by heretics, to be rebaptised) was not held under the Reign of Constantine, for that St. 
Concil. To. 1.  Cyprian was Martyred in Valexians' days, the Eighth Persecuting Emperor; but the first Council of Carthage held in Constantine's days, was that wherein the Donatists condemned Cecilianus Bishop of Carthage, whose innocency was made afterwards to appear.  
At Antioch, 
At Antioch, An. 340, or 344.  the First Council there was held by Arrians under the Reign of Constantinus, Son of Constantine, in the year 340 or 344. This being one of the Councils, which either determine Heretical Opinions, or raise up Schisms and Troubles to the dispersing of the Christian Flock, doth not undeservedly pass under the name or notion of one of the Rejected Councils. To this Assembly resorted 90 Bishops, under pretence of Dedicating the Church of Antioch, built by Constantine, when in truth their principal design was to eject Athanasius out of his Chair, and to subvert that Systeme of Faith, which was set down in the Nicene Council. This Council of Antioch is to be distinguished from Five others which Bellarmine reckons; Longus also doth name this, and mentions other Councils of Antioch. But this Council is referred to the time of Constantinus, and Julius the First. Athanasius being restored from Banishment by Constantine, the Son of Constantine the Great, the Arrians declare it to be unlawful, because the same Authority which did eject, must restore: This matter therefore being referred to Pope Julius, he Summons the Synod to appear at Rome. But the Eusebians, chief of the heretics, that they might avoid this, did without much difficulty seduce Constantius to be at the Consecration of the Magnificent Temple built by Constantine the Great at Antioch: where were met about 90 Bishops, as aforesaid, 30 whereof being Arrians, the favour and Authority of the Emperor, against the double Suffrages of the Orthodox procured the condemning of Restored Athanasius. It is said of this Council, That they did set forth a Form of Belief so intermixed with Truth and Error, that he which is heedful lest he be deceived, 
Socrat. l. 2. c. 5.  in his greatest warlness can scarcely be safe; for by the omission of what might establish the Truth, 
Sozom l. 3. c. 5.  they weaken that which they undertake to maintain. To this Council probably may be referred Two other Councils, 
At Antioch. An. 348.  which some report to have been held also at Antioch about the year 348. the former whereof was occasioned by the favour, which Julius Bishop of Rome shown to Athanasius Bishop of Alexandria, and other Bishops. In the other the Arrians did set forth a new Sum of their Faith, which being sent to the Bishops of Italy, was refused by them, adhering to that of the Nicene Council.  
At Sardis in Illyricum in the year 351. 
At Sardin, An. 351.  by the Command of Constantius and his Brother Constans a great National Council was Assembled, consisting of 376 Bishops, whereof Three hundred were from the West, and Seventy six from the East, from Thirty five Provinces in all. The Three hundred Western Bishops confirmed the Nicene Creed, to this end, That Athanasius, who was Banished Rome for the space of Three years, should be restored to his Place at Alexandria; but the other Seventy six Arrians meeting at Philippolis confirmed Arrianism under the Title of the Council of Sardis. In this Council by reason of the Arrian Faction, and from thence forward, were added different Affections to different Opinions. 
Vid. Bish. Prideaux Synops. of Councils.  In this Council, which is commonly called an Appendix to the First Nicene Council, were ratified 21 Canons under Pope Julius.  
At Sirmium in Illyria in the year 356. 
At Sirmium, An. 356.  by Command of the Emperor Constantius a Council was held, where were present besides Eastern, Three hundred Western Bishops and upwards for the hearing and deciding the Cause of Photius, who complained to the Emperor that he was unjustly condemned at the Synod of Sardis, although he had preached that Christ was mere man, and inferior to his Mother. 
dict. Synops.  This Council at Sirmium so groaned under the Arrian Tyranny of Constantius, that the Supremacy and Presidentship of Pope Liberius dared not to appear; Photius Bishop of Sirmium having renewed the Heresies of Sabellius and Samosatenus: 
Vid. Socrat. l. 1. c. 24.  Of this Council (saith Longus) there is nothing extant besides Three Forms of Belief, 
S●zom. l. 4. c. 5, & 6.  which are found in Binius. In this Synod there was a hot Dispute between Basilius' Bishop of Ancyra, 
Epiph. Haer. 7.  an Arrian heretic, and the said Photius a Sabellian heretic.  
At Milan in the year 355. 
At Milan, An. 355.  at the instance of the Arrians a Council consisting of Three hundred of the Occidental Bishops at the command of Constantius was Assembled, 
Socrat. l. 2. c. 36.  who (after that the Emperor Constans was slain by Magnentius) had the whole Sovereignty both of the East and West in his hands. This Council was convened partly for ratification of the Sentence pronounced against Athanasius at Tyrus, 
T●eed. l. 2. c. 15.  and partly for subversion of the Nicene Faith, but prevailed in neither. In this Council the Emperor himself was precedent, Liberius being Pope; I (saith the Emperor in this Council) am an Accuser of Athanasius. The Western Catholic Bishops there present (for there were few Eastern) promised to consent to the Arrians, if they would first subscribe to the Nicene Creed. But Valence and Vrsacius, the chief Leaders of that Faction withstood them. Then followed the degrading of the Bishops, and the corrupt Ecclesiastical determination. This was effected especially that they might allure Liberius Bishop of Rome, either by Gifts or Threats to their way, who is reported thus Heroically to have Answered the Emperor (who had judged him to be Banished to Thrace, and offered him the charge of his Journey) viz. Thou hast rob the Churches of the Earth, and now offerest to me Condemned an Indigent an Alms; Go first and become a Christian thyself.  
At Ariminum in Italy about the year 363. 
At Ariminum. An. 363.  was held a National Council, consisting of more than Four hundred Western Bishops, under the Emperor Constantius in the 22 d year of his Reign, at the motion of the Arrians, to whose Opinions the said Emperor was flexible enough; but the major part of the said Bishops rejecting the motions made in favour of the Arrian Error, touching the Son of God, adhered closely to the Nicene Faith. This Ariminum is (it seems) Famous for Two Councils; the one Orthodox, and lawfully called, which is that aforementioned. The other Heretical and Tyrannical, craftily called by the Arrians under the notion of the Council held at Ariminum, that this False one might extinguish the True one; whereof the greater part determined the Nicene Creed punctually to be observed, and the Sons equality with the Father in Essence to be asserted: The Decrees of the Synod at Sirmium to be rejected: and Vrsacius and Valence with the Arrians, their Followers, to be Excommunicated.  
At Seleucia in Isauria, 
At Selencia, An. 363.  which lies between Lycania and Cilcia, whence Paul and Barnabas sailed to Cyprus, Act. 13. 4. was a Council of 160 Oriental Bishops, held the same year wherein the said National Council of Ariminum was held, viz. An. 363. The business of this Council, procured (as the former) by the Arrians, was much prevented by a Contest arising touching precedency of Debates, as whether the matter of Faith, or the Lives of such as were to be accused, should first fall under Examination. At this time there being Convened at Ariminum 600 Bishops (according to Bellarmine out of the Chron. of Jerome) of which the Eastern Heterodox being overpowr'd both in Number and Arguments by the Orthodox, the Emperor Constantius removes them unto Seleucia in Isauria aforesaid. Here the Acatians altogether reject Consubstantiality, the Semi-Arrians admit it in their sense: In this diffention the Semi-Arrians prevail, and determine, That the Form of Faith composed at the Dedication at Antioch, should be retained and subscribed unto; but they ejected the dissenting Acatians or Arrians from their places.  
At Constantinople, 
At Constantinople.  where the Acatians remained after the Council at Seleucia, were Assembled by them about 50 Bishops out of Bythinia and other adjacent parts. In this Synod they confirmed the Sum of Faith read in the Council of Ariminum.  
At Antioch in the 25 th' year of Constantius his Reign another Council was Convened, 
At Antioch.  with design or ordering matters so, that for the time to come no man should call the Son of God Consubstantial with the Father, nor yet of a different substance from the Father; but neither in this Council could the Arrians perfect their intended purpose of inventing a new Sum of Faith.  
At Laodicea, 
At Laodicea, An. 368.  not that Laodicea nigh Antioch in Syria, but at Laodicea the Metropolis of Phyrgia, and one of the Seven Churches of Asia, to which John in his Banishment wrote from Patmos, At this Laedicea a Synod was assembled about the year 368. wherein nothing was determined concerning matters of Faith, only the Worshipping of Angels was damned as an horrible Idolatry, and a forsaking of Christ; also the Books of the Canonical Scriptures were particularly set forth, wherein no mention was made of the Books of the Maccabees, of Ecclesiasticus, or other Apocryphal Books.  
In Illyricum about the year 370 under the Emperor's Valentinian and Valens, 
In Illyricum, An. 370.  not yet infected with the Arrian heresy, was held a Council, wherein the Nicene Faith had confirmation and allowance.  
At Lampsacum nigh the Hellespont under the Emperor Valens was a Synod of Macedonian heretics, 
At Lampsacum.  who ratified the Council of Seleucia, 
Socrat. l. 4. c. 6.  and damned that of Constantinople by the Acatians. 
Sozom. l. 6. c. 7.   
At Rome under the Emperor Valentinian in the West, 
At Rome. Theod. l. 2. c. 22.  Damasus Bishop of Rome Convened a Council, wherein was confirmed the Nicene Faith.  
At Constantinople in the year 383 under Theodosius the Emperor, was a General Council held, 
At Constantinop. An. 383.  consisting of 150 Bishops, whereof 36 were infected with the Macedonian heresy, which blasphemously held the Holy Ghost to be a Creature, 
Theod. l. 5. c. 6.  a Minister and Servant, not Consubstantial with the Father and the Son. From this Council the said heretics having withdrawn themselves; they which remained in Council damned the heresy of Macedonius, and confirmed the Nicene Faith, with ampliation of that part of the Symbol which concerned the Holy Ghost, in this manner, viz. I believe in the Holy Spirit our Lord, Giver of life, who proceedeth from the Father, and with the Father and the Son is to be worshipped and glorified. This Council was held under Gratian and Theodosius the Great, and Damasus. They condemned and discharged Macedonius Bishop of Constantinople, 
Longus ex Lombard 1. ●em. D. 11. Bonavent. & aliis. Theod. Hist. l. 5. c. 6. & c. 10.  for his perfidious opposing the Deity of the Holy Ghost, together with Maximus Cynicus by reason of his Doctrine against Discipline. The Emperor nulled all Confessions, except that of those who acknowledged Christ Coessential with the Father, which our present Liturgy retains under the name of the Nicene Creed. It is thought that Gregory Nazianzen compiled it, according to the sense of the Synod.  
At Constantinople under Theodosius another Council was held, 
At Constantinople.  whence a Synodick Letter was sent to the Bishops then convened at Rome, 
Theod. l. 5. c. 9  declaring the troubles they sustained by heretics; and as to matters of Discipline recommended unto them the Canons of the Council of Nice.  
At Constantinople in the Fifth year of Theodosius his Reign, 
At Constantinople.  a great National Council was again convened, wherein the heretics were divided among themselves touching what Credit they should give in matters of Faith to the Fathers that preceded their time; whereupon that good Emperor rend in pieces the Sums of the Arrian, Eunomian, and Macedonian Faith, and Ordained the Homousian Faith only to take place.  
At Carthage the Second Council was assembled under Theodosius, 
At Carthage.  nigh the time of the foresaid General Council held at Constantinople, wherein the Nicene Faith was confirmed, abstinence from Matrimonial Society with Infidels and heretics recommended to Ecclesiastical persons.  
At Nice there was another Council An. 
At Nice, An. 181.  181. under Constantine, which wholly restored the Images and Statues of Irene, together with the relics formerly broken in pieces by Leo Isaurus his Grandfather, and Constantine Copronymus his Great Grandfather, the business being chief promoted by Gregory the Second and the Third, together with Adrian the First, and Tarasius Patriarch of Constantinople. There met at this Council (which is one of the Greek or Eastern ecumenical Councils) 350 Bishops, who with the said Tarasius precedent of the said Council, by 22 Canons condemned Image-breakers for heretics. Bellarmine and Baronius imagine, that this Synod was condemned by the Fathers at the Council of Franckfort under Charles the Great, which yet is denied by Binnius, Surius, and others, according to Longus, pag. 632.  
At Carthage a Third Council was Assembled in the year 399, 
At Carthage, An. 399.  at which Augustine Bishop of Hippo was present, wherein it was (inter alia) Ordained, 
Can. 40.  That the Bishop of Rome should be called the Bishop of the First Seat, but not the High Priest, or the Prince of Priests. 
Can. 47.  Likewise, That nothing except the holy Canonical Scriptures should be read in Churches under the notion of Holy Books.  
At Carthage a Fourth National Council was held under the Reign of Honorius about the year 401. 
At Carthage, An. 401.  consisting of 214 Bishops, at which Augustine Bishop of Hippo was also present, and wherein were nigh as many Canons made as were Bishops assembled; wherein among other things it was Ordained, That a Bishop should admit no man to a Spiritual Office without Advice of the Clergy; 
Can. 22, 23. 95.  nor pronounce any Sentence without such Advice: That Refusers to pay unto the Church the Oblations of persons Deceased, should be Excommunicated. Whereby it appears, That Oblationes Defunctorum were not Soul-Masses said for the Dead, but Charity by way of Testamental Legacies.  
At Cyprus under the Reigns of Arcadius and Honorius was Assembled a Council by Epiphanius. 
At Cypru:  And at Alexandria by Theophilus, under pretence of damning the Books of Origen. 
Alexandria.  Also at Constantinople by the malice of Eudoxia, 
Constantinople.  the Wife of Arcadius the Emperor, to depose John chrysostom Bishop of Constantinople.  
At Carthage about the year 419. a Fifth Council was held, 
At Carthage, An. 419.  wherein the Opinions of Pelagius and Coelestius were damned as Heretical; and whereby it was Declared, That the Adoration of relics was at this time the custom of ethnics, and Appointed, That Supplication should be made to the Emperors; That such relics as were found in Images, Groves, and Trees, or elsewhere, should be abolished.  
At Toledo in Spain under the Reigns of Arcadius and Honorius, 
At Toledo.  was a Council assembled for Confirmation of the Nicene Council, and refutation of some Errors.  
At Melevitum in Numidia was Assembled under the Reign of Arcadius a Council, 
At Melevitum.  whereof St. Augustine was precedent; which was Assembled chief to finish the work begun at the Fifth Council of Carthage, in condemning the Heresies of Pelagius and Coelestius, concerning the power of man's Nature, 
Can. 22.  not supported by the Grace of God, and Free Will of Man to do good of itself; as also to inhibit Appeals to Bishops beyond Sea, on pain of being secluded from the Communion of all African Bishops.  
At Carthage in the year 402 under Honorius and Theodosius the Second; 
At Carthage An. 402.  a National Council of 217 Bishops was assembled, which continued for the space of Six years: The business of this Council was prevented by a controversy happening between them and the Bishops of Rome, who successively endeavoured (but not successfully) to persuade the African Bishops, 
Hist. Magd. Cent. 5. cap. 9  that they were under the Sovereignty and Jurisdiction of the Bishops of Rome; to whom this Council would not allow of any Appeal from the Bishops of Africa.  
At Bagaia in Africa about the year 433. 
At Daga●a, An. 433.  certain Donatists to the Number of 310 assembled themselves in Council, chief for the deposition of Maximinianus, Bishop of Bagaia, whom they Deposed and Accursed, because he had renounced their heresy, and had recovered many others from the Error of that way.  
At Ephesus in the year 434. 
At Ephesus, An. 434.  and in the Eighth year of the Reign of Theodosius the Second, by some called Theodosius the Younger, was a General Council assembled against the heretic Nestorius' Bishop of Constantinople; which Council consisted of above Two hundred Bishops, by Command from the Emperor: By which Council Nostorius, for his heresy in denying the Son of the Virgin Mary to be God, and consequently the Personal Union of the Divine and Humane Nature of Christ, was Banished to Oasis. This was the first General Council of Ephesus, promoted by Celestine the First, wherein Two hundred Bishops (as aforesaid) condemned Nestorius together with Carisius his flattering Presbyter, who instead of Two Natures acknowledged divers Persons in Christ, and therefore pleaded that the Blessed Virgin Mary should be styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only, 
The Mother of Christ, not The Mother of God.  and not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. In this Council Cyrillus of Alexandria is recorded precedent, whom Nestorius, being piously and brotherly invited to a better Opinion proudly contemned, and having craftily alured John of Antioch to his party, anathematised him and the Council, who had formerly anathematised him. The matter being related to the Emperor, and throughly understood, Cyrillus and his are cleared, but Nestorius with his party is Banished (as aforesaid) to Oasis, a Sandy Habitation, where like another Cain (says a Modern Historian) roving here and there, Blaspheming, at length his Tongue being consumed and eaten up by Worms, he breathed out his last. There are (it seems) two Copies of this Council, 
Vid. Liberat. in Breviar. cap. 11.  the First observing Eight, the Second Thirteen Canons, which are comprehended in the anathemas of Cyrillus. The Massilianites, termed also Euchites and Enthusiasts, were condemned by this Council, and thereby the integrity of the Nicene Creed confirmed.  
At Ephesus under Theodosius the Second was likewise a Particular Council assembled by Flavianus Bishop of Constantinople, 
At Ephesus. an. 440.  who condemned Eutyches an Abbot of Constantinople, for Affirming, That in Christ, after the Union of the Divine and Humane Natures, there were no longer Two Natures; which absurd Opinion Flavianus damned as Heretical. So that the occasion of this Second Council of Ephisus, An. 449. was this Eutyches, an Archimandrite of Constantinople, who after Manes and Apollinaris denied the Flesh of Christ to be like ours, but affirmed, that falling from heaven like the Rays of the Sun, it penetrated the virgin's womb. And so he denied that Two Natures were in Christ Incarnate; but asserted, that his Flesh was changed into his Divinity: for which he was (as aforesaid) condemned by Flavianus Patriarch of Constantinople, and Eusebius Bishop of Doril, and others their Associates; yet by the help of Chrysaphius the Eunuch, and Eudoxia the Empress, whom he had seduced, he prevailed with Theodosius, that the matter might be determined by a Famous Synod; for which reason this at Ephesus by the Emperor's Authority was called, where 128 Bishops met, Dioscorus of Alexandria being precedent, one so full of Eutychianism, 
Vid. Liberat. in Breviar. cap. 12. Evang. l. c. 9 10. Niceph. l. 14. c. 57  that Eutyches is absolved, and the reclaimers forced (says the Historian) to subscribe by Club-Arguments. Flavianus opposing it, was so suriously trodden upon, that three days after he died; besides, many very Learned Bishops discharged of their Places; yet not long after all this was dashed in pieces by the most Famous Council of Chalcedon.  
At Berytus in Phoenicia was held a Council about this time, 
At Berytus.  where in the Cause of Ibas Bishop of Edessa, whom Dioscorus had deposed, was revived, and himself justified and absolved.  
At Agatha in France was a Council held, 
At Agatha,  wherein nothing was more remarkable, than that they had liberty to meet together by the Command of Alaricus King of Goths, who at that time had the Sovereignty in that parr of France called Gallia Norbonensis; whence it appears, That Councils both General and National, were in all countries' Convened by the Authority of Sovereign Princes.  
At Chalcedon in Bythinia in the year 455. 
At Chalcedon, An. 455.  and in the Fourth year of Marcianus the Emperor was a General Council, at which was present in person the Emperor, and 630 Bishops and Reverend Fathers from most parts of the World. In this Council Dioscorns Bishop of Alexandria, together with Eutyches and Juvenalis Bishops at Jerusalem, was condemned as an heretic, for absolving the heretic Eutyches in the Council at Ephesus, and acting other Crimes, whereof he was then accused. In this Council it was Ordained, That men should believe, that the Natures of Christ, albeit that they were united, yet were they not confounded, as Eutyches had Heretically affirmed. Also in this Council it was Ordained, That Anatelius Bishop of Constantinople and his Successors, should have the chief Dignity next unto the Chair of Rome. This Council was called by the said Emperor Martianus against the said Eutyches, Abbot of Constantinople, and his Champion Dioscorus of Alexandria; the suppositious Acts of the Council held at Ephesus were condemned by this Council, those of Ephesus being in favour of Eutyches, who affirmed one only Nature to be in Christ, viz. his Divine Nature, after his Incarnation. It is not clear or certain, who was precedent of this Council of Chalcedon, excepting the Emperor, and Judges Moderators: The matters thereof were for the most part by favouring parties between Leo the First of Rome, and Anatholius Patriarch of Constantinople.  
At Ravenna in the Sixth Century, 
At Ravenna, Cent. 6.  was a Council Assembled by occasion of the Schism happening on the Election of Symmachus to the See of Rome, whose Competitor was Laurentius, afterwards made Bishop of Nuceria. In Symmachus his time were no less than Six Councils held at Rome, all Convened by Authority of Theodoricus King of Goths, who then Reigned in Italy, and all of little importance, otherwise than the Endeavours that then were for the Supremacy, whereat they aimed.  
At Valentia in Spain were assembled Two Councils, 
At Valentia.  called Herdense and Valentinum, both very obscure Councils, there being in the one but Eight Bishops present, and only Six in the other. In the First of these, Marriage was prohibited the time of Lent, and three weeks before the Feast of St. John the Baptist, and during the time between Advent and Epiphany.  
At Sidon in the Twentieth year of the Emperor Anastasius a National Council of 80 Bishops was Assembled, 
At Sidon.  by the procurement of Xenaeas Bishop of Hierapolis, for undoing the Council of Chalcedon, which as far as in them lay, they did accordingly.  
At Aurelia, that is, 
At Orleans  orleans in France in the 22 d year of Anastasius, and under the Reign of Clodoveus King of France, were convened 32 Bishops, on purpose to settle some Order in Ecclesiastical Discipline, which by reason of the irruption of Barbarous people into the country of France, had been brought into great disorder.  
At Gerunda and Caesaraugusta in Spain were Two Councils under Theodoricus King of Goths then Reigning in Spain. 
At Gerunda, At Caesarangusta.  In the former of these were only Seven Bishops convened, who made some Constitutions, chief about Baptism: In the latter were Eleven Bishops, and they in opposition to Supersitition and the Manichaean heretics, prohibited Fasting on the Lord's day.  
At Rome in the Sixth Century, 
At Rome, Cent. 6.  by the Mandate of Theodoricus King of Goths, Reigning in Italy, a Council was Assembled by Hormisda Bishop of Rome, wherein the Error of Eutyches is damned de novo, and ambassadors sent to the Emperor Anastasius, and to the Bishop of Constantinople, to divert them from that Error.  
At Constantinople in the same Century under the Emperor Justinus was another Council convened, 
At C●stent. Cent. 6.  wherein many great Accusations were exhibited against Severus Bishop of Antioch, who was then condemned of heresy, and afterwards Banished by the Emperor.  
At Toledo in the same Century was a Second Council assembled, 
At Toldo, Cent. 6.  partly for renewing Ancient Constitutions, and partly for making New in order to Ecclesiastical Discipline. By the first Canon of this Second Council of Toledo, Marriage was tolerated to such of the Clergy, as on their initiation to that Function protested that they had not the gift of Continency.  
At Constantinople in the year 532. 
At Constantinople, An. 5●2  under Justinian was another Council consisting of One hundred Sixty five Bishops, Menes being precedent, or rather his Successor, Eutychius Patriarch of Constantinople; but Pope Vigilius, who came to Constantinople to Summon the Emperor, yet would not himself be present at the Council, lest a seeming yielding to Eutychius might be prejudicial to his Supremacy. The Emperor endeavoured to reconcile the Eutychians and the Orthodox for the public Tranquillity, and therefore would have revoked the Articles concerning the condemning of Theodorus of Mopsuesta, and of Theodoret against Cyrillus that was anathematised. But the Western Churches with Pope Vigilius constantly opposed it, and confirming not only the Decrees anathematising those heretics with their Heresies of former Councils, 
Vid. Niceph. l. 17. c. 27. Gregor. l. 1. Ep. 24. Evag. l. 4. d. 34 Liberat. in Brev. c. 23, ●4.  but also of Chalcedon. The Errors of Origen also expunged, which either denied the Divinity of Christ, or the Resurrection of the Body, or affirmed the Restitution of Reprohates and Devils. Consult concerning this Council, Zonar. in vit. Justinian. If this be that Council which some report to have been at Constantinople under the Emperor Justinian in the year 551. there appears above Twenty years' difference in computation of Time. This Council is said to have been occasioned chief for pacifying the controversy between Eustochius Bishop of Jerusalem, and Theodorus Ascidas Bishop of Caesarea Cappadocia, touching origen's Books and Tenets, as also for the determination of other Contentious Disputations. In this Council a Question was moved, Whether men that were dead, might lawfully be Cursed and Excommunicated? To which it was Answered, That as J●sias not only punished Idolatrous Priests while they were alive, 
2 Kin. 23 16.  but also opened the Graves of them that were dead, to dishonour them after their death, who had dishonoured God in their life time: Even so, the Memorials of men might be accursed after their death, who had disturbed the Church of Christ in their life.  
At Orleans under Childebertus King of France were frequent Meetings and Assemblies of Bishops, 
At Orlean.  the 2, 3, 4, 5 Councils, whereby many Constitutions were made prohibiting Marriage to Priests; and in the Fourth Canon of the Second Council Simony was damned.  
At Overnie in France under Theodobertus' King of France, 
At Overnie.  the Bishops who were present at the Councils of Orleans, did assemble and Ordained, That no man should presume to the Office of a Bishop by Favour, but by Merit.  
At Tours under Aribertus King of France a Council was held, 
At Tours.  wherein Provision was made against such Poor as wandered out of their Parishes. In this Council several Constitutions also were made relating to Bishops and the other Clergy in reference to Marriage.  
At Paris a Council was held, 
At Paris.  wherein order was taken concerning the Admission of Bishops to their Offices, and that not to be by favour, but with the consent of the Clergy and People.  
At Toledo Assembled a Council of 62 Bishops, 
At Toledo.  where Recaredus King of Spain, and the whole Nation of the West-Gothes in Spain renounced the Arrian heresy.  
At Constantinople under the Reign of Maruitius a Council was held, 
At Constantinople. Hist. Magd. Cent. 6. cap. 9  for trying the Cause of Gregorius Bishop of Antioch accused of Incest, but declared to be Innocent, and his Accuser scourged with Rods, and Banished.  
At Matiscon about the time of Pelagius the Second, 
At Matiscon.  a Council was held, wherein Command was given, That none of the Clergy should Cite another, 
Can 8.  having a Spiritual Office, before a Secular Judge. And that she who is the Wife of a man that becomes a Bishop or a Presbyter, should after such Dignity become his Sister, and he be changed into a Brother.  
At Matiscon another Council was Convened under gunthranns' King of France in the 24 th' year of his Reign, 
At Matiscon.  wherein it was Ordained, That Children should be baptised at Easter and Whitsuntide; 
Can. 3. 12.  and that Secular men should reverence the Clergy.  
At Rome in the year 595, 
At Rome. An. 595.  and in the Thirteenth year of the Reign of the Emperor Mauritius, was a Council assembled of 24 Bishops and 34 Presbyters, wherein the first Four General Councils were confirmed; and that for Ordination of men in Spiritual, no Reward should be given or taken.  
Before the Conclusion of this Sixth Century, and precedent to the Councils last mentioned, there were some other Councils of less moment, such as Concilium Gradense, Braccarense, Lataranense, Lugdunense, Pictaviense, & Metense, which being for the most part employed chief in damning Old Heresies, and in contentious Disputations, are here omitted.  
At Rome in the year 607. 
At Rome, An. 607.  under Phocas the Emperor, a Council of 72 Bishops, 30 Presbyters, and 3 Deacons, was Assembled. In this Council the privilege of Supremacy given by Phocas to the Roman Church was published. And in the Eighth, that is, the last year of Phocas, Boniface the Fourth assembled another Council at Rome, wherein he gave power to the Monks to Preach, Administer Sacraments, hear Confessions, to Bind and lose, and associate them in equal Authority with the Clergy.  
At Braga or Bracara in Portugal, 
At B●acara, An. 610.  An. 610. under the Reign of Gundemarus' King of Gethes assembled some Bishops of Gallicia, Lusitania, and of the Province of Lucensis, whereby it was Ordained, That every Bishop should visit the Churches of his diocese; That they should receive no Rewards for Ordination of the Clergy; And that a Church builded for Gain, and Contribution of the People, redounding to the advantage of the Builder, should not be Consecrated.  
At Auxerre in France, 
At Auxerre, An. 613.  An. 613. assembled a number of Abbots and Presbyters, with one Bishop and three Deacons. In this Synod they damned Sorcery, made many Superstitious Constitutions, as touching Masses, Burials, Marriages, Prohibition of Meats, etc.  
At Hispalis, 
At Hispalis, An. 634.  commonly called Civil La grand, in Spain, in the year 634. and in the 24 th' year of the Emperor Heraclius, a Council was assembled by Isidorus Bishop of Hispalis, at the Command of King Sisebutus, for suppression of the heresy of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, a Branch of the Eutychian heresy, and for the decision of some Questions touching the Bounds of their Dioceses.  
At Toledo in Spain, 
At Toledo, An. 639.  An. 639. under the Reign of Sisenandus King of Spain, by the King's Command were more than 70 Bishops and Presbyters convened upon occasion of diversity of Ceremonies and Discipline in that Kingdom. This was the Fourth Council at Toledo.  
At Toledo in the First year of Chintilla King of the Goths, 
At Toledo.  about the time of the Emperor Heraclions' Reign, a Fifth Council was held, convened by Eugenius Bishop of Toledo. In this Council nothing considerable was done, but in reference to Annual litanies, and the appointment of Supplications for the King.  
At Rome in the year 652. 
At Rome, An. 652.  was a Council convened by Martinus Pope, consisting of more than 100 Bishops, occasioned by the Error of the Monothelites, obstinately maintained by Paulus of Constantinople, and countenanced by the impious Edict of the Emperor Constans. The Constitutions and Decrees made in this Council tended to condemn those that denied the Trinity, the Divine Unity in the Divine Nature, the Manifestation of the Second Person of the Trinity, and his Sufferings in the Flesh.  
At Toledo in the year 653. 
At Toledo, An. 65●.  a Sixth Council was held, consisting of Fifty two Bishops, whereof Eugenius Bishop of Toledo was precedent. The occasion whereof was the Renovation of Old Heresies, and Contradiction to precedent Councils. The Fourth Canon of this Council is against Simony, and the Eighteenth is against Rebellion.  
At Toledo in the year 662. 
At Toledo, An. 66●.  a Seventh Council is held, of 4 Archbishops, 50 Bishops and many Presbyters. The First Canon of this Council is against Sedition and Treason. By the Fourth Canon it is forbidden, That Bishops in their Visitations should extort, or oppress their Churches.  
At Quinisext (so termed by Balsemon) the same year, 
At Quinisext, A●. 662.  viz. 662. was held a Council, which by Bede and many others is accounted an Erroneous Synod; it was convened under Justinian the Second and Pope Sergius, wherein the Fathers thought fit to supply the defect of the Fifth and Sixth precedent Synods in reference to manners and Ecclesiastical Discipline, for which reason they ratified 102 Canons, in the 
† Trullo, that is, a vaulted Cloister in the Emperor's Palace.  Trullo of the Imperial Palace, whence they are called Trullans. These are rejected by such Latins, whose consent went not to the establishment thereof, specially not empowr'd and authorised thereto by the Pope. In the 36 th' Canon thereof the Patriarch of Constantinople is equalled to the Roman, and in the 13 th' Canon Matrimony is granted to the Clergy.  
At Chalon in Burgundy by the Command of Clodoveus K. of France a Council of 44 Bishops assembled, 
At Chabillanum, or Chalon.  wherein the Canons of the Nicene Council had great approbation; And it was Forbidden, That Two Bishops should be Ordained in one City; and Decreed, That no Secular work should be done on the Lord's Day.  
At Rome in the time of Constantinus Pogonatus Emperor under the Popedom of Agatho was held a Council, 
At Rome.  wherein it was Declared by the Suffrages of 125 Bishops, That Two wills and Two operations were to be acknowledged in Christ; and the Defenders of the heresy of the Monothelites were condemned.  
At Toledo in the year 671. 
At Toledo, An. 671.  an Eighth Council of 52 Bishops was assembled, wherein were high Debates concerning Perjury; At last it was Resolved, That no Necessity obligeth a man to perform an unlawful Oath. In this Council Marriage was utterly forbidden to Bishops, and eating of Flesh in Lent.  
At Toledo in the year 673. 
At Toledo. An. 673.  and in the Seventh year of Recesuvindus' King of Goths, and by his Command, were convened 16 Bishops, which was the Ninth Council at that place; and in which several Canons were made touching the Discipline of the Church.  
At Toledo in the Eighth year of the said King's Reign was the Tenth Council, 
At Toledo, An. 674.  consisting of 21 Bishops, who made some Decrees touching certain Festivals, and others relating to the Clergy, and removed Protamius Bishop of Bracara from his Office, being convict of Adultery.  
At Toledo in the Seventh year of Bamba King of Goths 19 Bishops and Seven Abbots were assembled by the King's Command, wherein several Canons were made concerning Ecclesiastical Discipline.  
At Bracara a Second Council was held (the first according to Caranza,) 
At Bracara.  wherein many old Opinions of the Priscilianists and Manichaeans concerning Prohibition of Marriage and Meats are condemned, together with the Heresies of Samosatenus, Photinus, Cerdon, and Martion: And in the 30 th' Canon of this Council it was Ordained, That no poesy should be Sung in the Church, except the Psalter of the Old Testament.  
At Bracara in Spain in the time of Bombas King of Goths another Synod of Eight Bishops was assembled, 
At Bracara.  wherein the Nicene Faith is again rehearsed. In the Fifth Canon of this Synod it is Ordained, That upon Festival days relics enclosed in an Ark, shall be born on the Shoulders of the Levites, as the Ark of God in the Old Testament was accustomed to be born.  
At Constantinople in the year 680. 
At Constantinople. An. 680.  in the Twelfth year of the Reign of Constantine Pogonatus a General Council was held, Pope Agatho procuring it by his Legates. In this Council were convened 150 Bishops (they who reckon 270 or 286 do compute the Absent Romans, and others consenting thereto,) the Emperor himself was precedent. In this Council was discussed the Question touching the Wills and Actions of Christ: Here were condemned the Monothelites, Sergius, Cyrus, Pyrrhus, Peter, Paul, Theodorus, together with Pope Honorius; who in the defence of Eutychianism pleaded, that there was one only Will in Christ. This Council confirmed the Canons, not only of General, but also of Particular foregoing Synods, as of Antioch, Laodicea, and others. It also added, what was to be approved in the Orthodox Writings of the Fathers, as appears by the Second Canon of this Council. Vid. Paul. Diacon. in vit. Constant.  
At Toledo the Twelfth Council, 
At Toledo.  consisting of 33 Bishops with some Abbots, and 13 of the Nobility, assembled the first year of the Reign of Euringius, to whom Bombas King of the Goths resigned his Royal Authority, choosing rather to be Shave than to wear a Crown, and to enter into a Monastery than to fit on the Throne of Majesty. This Council (as to the Confession of Faith) adhered to the Council of Nice, and confirmed the Acts made in precedent Councils against the Jews. Other Councils there were at Toledo under the Reigns of Euringius and Egista, but not of such Remark, as needs any apology for their omission.  
At London in the year 712. 
At London, An. 712.  under the Saxons Reign a Council was assembled, at which the Pope's Legate Bonifacius, and the chief Prelate of England Brithwaldus was present. The two grand Points treated in this Council, were concerning the Worshipping of Images, and Prohibiting Marriage to persons in Spiritual Orders.  
At Constantinople about the same year of 712. 
At Constantinop. An. 712.  a Council was called by the Emperor Philippicus, for the undoing or the Sixth General Council, wherein the Error of the Monothelites was condemned.  
At Rome in the year 714. 
At Rome, An. 714.  a Council was Assembled by Pope Gregory the Second, whereat two Bishops of Britain were present, Sedulius and Fergustus. Most of the Canons made at this Council did concern Marriage, Masses, sorceries, and the Mandates of the Apostolic Chair.  
At Rome a great Council of 903 Bishops was assembled by Pope Gregory the Third, 
At Rome.  having received a Mandate from the Emperor Leo for the Abolishing of Images. In this Council was the Emperor Leo Excommunicated, and deprived of his Imperial Dignity, because he had disallowed the Worshipping of Images. Now is the Pope's Banner displayed against the Emperor, which is the Forerunner of that Enmity which ensued between the Pope and the Emperors.  
In France in the year 742. 
In France, An. 742.  under the Reign of Charles the Great, Zacharias the First being then Pope, a National Council of the Bishops, Presbyters, and Clergy of France was assembled by Bonifacius Archbishop of Mentz, according to the Mandate of King Charles. This Council was called for Reformation of Abuses in that country, or rather to reduce it to a conformity unto the Rites of the Roman Church.  
At Constantinople in the year 755. 
At Constantinople, An. 755.  and the Thirteenth year of the Emperor Constantinus Copronymus a General Council of 338 Bishops was Assembled by the Emperor's Command. In this Council the Worshipping of Images was damned, and the placing of them in Oratories and Temples, as a custom borrowed from the Pagans was forbidden; yet in the 15 th' and 17 th' Canons of this Council the Invocation of Saints is allowed. 
An. 730. Bell. de Council. l. 1. c. 6.  The Council of Constantinople is by some accounted two, which others contract into one, but the distinction (it seems) is manifest, because the first is said to be celebrated under Father Leo Isaurus, An. 730. The Second by Constantius Copronymus in the year 755, as aforesaid. The one opposeth the Worshipping of Images and relics, on which account both may be esteemed as one, or at least united. The first under Leo discovers Intercession of Saints to be imaginary, and the Worshipping of Images mere Idolatry. Germanus Patriarch of Constantinople, and John Damascene, and others, too much inclined to Images, are deprived of their Dignities. Gregory the Third intercedes for Images in a Roman antisynod, in which he Excommunicated the Eastern with the mark of Heretical Image-breakers; but this did not terrify the said Constantine Copronymus from declaring himself to be an Image-breaker; but assembled 338 Bishops at Constantinople, as aforesaid, over whom himself was precedent, and persecuted the Maintainers of Images. Some will have This and the Seventh Council as ecumenical; but the Romans so abhorred it, 
Vid. Paul. Diac. l. 21, 22. Re●um Rom. & Zonar. in Annal.  that for this controversy about Images they denied their Subjection to the Greek Emperors: whenc afterwards ensued the Western and Eastern Division, never to be reconciled. How well the Nicene Council corrected the Errors of this, appears by the Decrees thereof.  
At Francfurt in the year 794. 
At Francfurt, An. 794.  a Council was convened, but it is not agreed, whether it was an ecumenical or Provincial Council; the more Ancient Writers will have it to be ecumenical, because it was called by Charles the Great, and Adrian the First, and it consisted of at least 300 Bishops; yet the latter Writers will have it Provincial, because it seems not to favour Images. The Reason of the convening of this Council was, because Elipardus Archbishop of Toledo, and Felix Vrgelitanus Bishop of Aurelia or Orleans in France, preached, That Christ was only the Adopted Son of God, which Aquinas refutes 3. part. q. 23. art. 4. But Binius with Longus and others will have it, that this Council or Synod confirmed the Opinion of the 2 d Nicene Council concerning the Adoration of Images, which Bellarmine will not believe, though he wishes it to be true.  
At Nice in Bythinia in the year 788. 
At Nice, 783.  a Council of 350 Bishops was assembled; in which it was Ordained, That the Image of Christ, the Blessed Virgin Mary, and of the Saints, should not only be received into places of Adoration, but also should be adored and worshipped.  
At Frankford in the year 794. 
At Frankford, An. 794.  a great Council was assembled by Charles the Great, King of France, partly by reason of the heretic Felix, who called Christ the Adopted Son of God in his Humane Nature, and was condemned in a Council at Ratisbone, An. 742. partly also by reason of great Disputes that were in most places concerning the Worshipping of Images, disallowed in the Council of Constantinople, but allowed in the Second Council of Nice.  
At Mentz in the year 813. 
At Mentz, An. 813.  by the Command of Carolus Magnus, was Assembled a Council of 30 Bishops, 25 Abbots, with a great number of Priests, Monks, Counts, and Judges, about Reformation of the dissolute manners of Ecclesiastical and lay-people.  
At Rheims in the same year 813. 
At Rheims. An. 813.  a Council was Assembled by the Command of Charles the Great, who not only called that Famous Council of Frankford, An. 794. in which the Adoration of Images was condemned, but also about one and the same time, viz. An. 813. appointed Five National Councils to be convened in divers places for Reformation of the Clergy and Laity, viz. at Mentz aforesaid; this at Rheims; another at Tours; a Fourth at Chalons; and a Fifth at Aries. In all which no opposition was made to the foresaid Council of Frankford, nor was the Adoration of Images avowed in any of these Councils.  
At Tours, 
At Tours, An. 813.  An. 813. at the Command (as aforesaid) of the Emperor Carolus Magnus a Council of many Bishops and Abbots was assembled, for the Establishing of Ecclesiastical Discipline in Tours.  
At Chalons, 
At Chalons, An. 813.  An. 813. was the Fourth Council convened the same year under Charles the Great, and by his Command, for the Reformation of the Ecclesiastical state; the Canons whereof for the most part are consonant to those made in the said former Councils under Charles the Great.  
At Arles the same year of 813. 
At Arles, 813.  wherein the Four preceding Councils were held, another was convened by Command of Charles the Great, wherein as to matters of Faith, Church-Discipline, Regulation of the Clergy, Reformation of Manners, etc. the Canons generally agree with those of the said Four preceding Councils.  
At Constantinople in the year 871. 
At Constantinople, An. 871.  in the Third year of Basilius Emperor of the East, and under the Reign of Lewis 2. Emperor of the West, a Council was Assembled by Basilius the Emperor against Photius the Patriarch of Constantinople; in which Council he was deposed and Excommunicated, and the Books he wrote against the Bishop of Rome's Supremacy above other Bishops, commanded to be burnt. At this Council the ambassadors of Pope Adrian the Second were present, and great endeavours used to have all things therein framed to his content. In this Council the Worshipping of Images was again allowed; and it was Commanded, That the Image of Christ should be held in no less reverence than the Books of the Gospel.  
At Acciniacum in France a Council consisting of Ten Bishops was convened by Carolus Calvus. 
At Accinicum.  In this Council Hincmarus' Bishop of Laudunum was deprived of his Office, and his eyes thrust out; but Pope John the 9 th'. under the Reign of Carolus Crassus, restored him to his Office, because he appealed from his own Bishop and a Synod in his own country, to the Chair of Rome.  
At Strasburgh in the year 899. 
At Strasburgh, An. 899.  and in the Eighth year of the Emperor Arnulphus, 22 Bishops of Germany were assembled. Many of the Constitutions of this Synod (according to Caranza) are in effect the same with the Canons of former Councils. In the 46 th' Canon of this Synod it is Ordained, That a man, whose Wife is Divorced from him by reason of her Adultery, shall not marry again during her life.  
At Ravenna in the year 903. 
At Ravenna, An. 903.  a Council of 74 Bishops was convened, whereat was present Carolus Simplex, King of France. In this Council the Acts of Pope Formosus had allowance, and the Decrees of Stephanus the Sixth were condemned and burnt.  
At Rheims under the said Carolus Simplex a Council was assembled for correcting the abuses of Church-Rents, 
At Rheims.  a great part whereof under pretence of the King's necessary occasions, was converted by some Courtiers to their own use, against which Fulco Archbishop of Rheims declaring his mind freely in Council, was slain by Vinemarus one of the Oppressors at Court; the like not having been known since the Second Council of Ephesus, called a Council of Briggandry, wherein Flavianus Bishop of Constantinople was slain.  
At Rome in the time of Otto the First a great Council was assembled against Pope John the 13 th'. 
At Rome.  or as others affirm, Pope John the 12 th'. In this Council the Pope was accused of Ordaining a Deacon in a Stable, of Simony, of Adultery, of making the Sacred Palace like a bawdy-house, of murdering Benedict his Spiritual Father, of Gelding John an Archdeacon, of raising Fire, of drinking to the Devil, of distributing the golden Crosses and Chalices to his Harlots, of imploring help from Jupiter and Venus in his playing at Dice, and of his not Signing himself with the Sign of the Cross.  
At Canterbury in the year 975. 
At Canterbury. An. 975.  a Council was Assembled, when Dunstanus was Bishop thereof. The Question that was most in debate at this Council, was concerning Marriage in relation to such persons as were in Spiritual Orders, the which Dunstanus (whether his Crucifix spoke True or False, if it spoke at all) declared his judgement against.  
At Constantinople under the Reign of Nicephorus Phocas Emperor of the East was a Council convened, 
A Constantinople.  by reason of Nicephorus his taking to wise Theophania the Reflict of his predecessor Romanus, having been Witness in Baptism to Theophania's Children; the which so displeased Polyeuchus Patriarch of Constantinople, that for the same he debarred the said Emperor from Holy things, and so in effect Excommunicated the Emperor of the East.  
At Rheims, 
At Rheims, An. 992.  An. 992. in the Ninth year of the Emperor Otto, and in the Fourth of Hugo Capeto King of France a Council was convened against Arnulphus Bishop of Rheims for countenancing Duke Charles, who claimed the Crown as next Heir, being Brother to Lotharius. Whereupon Arnulphus was deposed, and denuded of his Episcopal Dignity, who yet afterwards was restored to it again by another Council at Rheims, called by Pope John the Thirteenth.  
At Arles in the year 1026. 
At Arles, An. 1026.  and under the Reign of the Emperor Henry the Second, a Council was assembled in order to the appeasing of the wrath of God and his indignation at that time manifested against the greatest part of the whole World.  
At Halingnustat in the year 1023. 
At Halingnustat, An. 1023.  under the Emperor Henry the Second a Council was Assembled, wherein great endeavours were used to make a Conformity and Unity in observation of Ecclesiastical Rites and Ceremonies in Germany; wherein Laws were made concerning the degrees of Consanguinity.  
At Triburia, 
At Triburia, An. 1030.  An. 1030. under the Reign of the Emperor Conrade the Second a Council was Assembled, at which the Emperor was present, wherein were made some Constitutions concerning Fasting.  
At Sutrium in Italy, 
At Sutrium, An. 1046.  An. 1046. under the Reign of the Emperor Henry the Third was an Assembly by the Emperor for the pacifying that grand Schism in the Roman Church, when Three Popes at once contended for the Popedom, viz. Benedict the Ninth, Silvester the Third, and Gregory the Sixth, all which the Emperor and the Council dispoped, and chose one Sindigerus Bishop of Bamberg to be Pope, whom they called Clemens the Second.  
At Rome about the year 1050. 
At Rome, An. 105.  Leo the Ninth assembled a Council at Rome against Berengarius Deacon at Angiers, who disapproved the Opinion of Transubstantiation, viz. [That after the words of Consecration the substance of Bread evanished, and the substance of the Body and Blood of Christ was in the Sacrament, under the Accidents of Bread and Wine;] whose Letters touching this matter, not finding Lanfrankus' Bishop of Canterbury (to whom they were directed) in Normandy, were delivered to some of the Clergy, who opening the same, sent them to Pope Leo the Ninth, whereupon this Council at Rome was assembled, wherein the said Letters of Berengarius being read, they condemned him (though absent) as an heretic.  
At Vercellis the same year Leo the Ninth assembled another Council against Berengarius. 
At Vercellis, An. 1050.   
At Tours in the year 1055. 
At Tours, An. 1055.  Pope Victor the Second Assembled a Council against Berengarius, who there answered, That he adhered to no particular Opinion of his own, but followed the Common Doctrine of the Universal Church.  
At Rome in the year 1059. 
At Rome, An. 1059.  Pope Nicholaus the Second assembled a Council of 113 Bishops against Berengarius, who submitting himself to the Pope and Councils Correction, they prescribed him a Form of Renunciation of his Error, so there called, which he accepted and recanted, yet afterwards published a Refutation of the same Doctrine. In this Council it was Ordained, That the Election of the Pope should belong to the college of Cardinals.  
At Milan, 
At Milan, An. 1060.  An. 1060. Pope Nicholaus the Second by Petrus Damianus held a Council, wherein the Two chief points debated were touching Simony, and the Error of the Nicholaitans, whereof they counted such Priests guilty as had married Wives, though they did not (as the Nicholaitans) make them Common.  
At Mantua, 
At Mantua, An. 1066.  An. 1066. the Emperor Henry the Fourth assembled a Council for pacifying the Differences in the Roman Church, between Alexander the Second, and Candalus, called Honorius the Second, wherein Alexander was declared Pope, and Candalus pardoned.  
At Winchester Pope Alexander the Second by two Cardinals sent into England, 
At Winchester.  Assembled a Council to appease the Troubles of the Church in this Kingdom; wherein they deposed certain Bishops and Abbots, among whom Stigandus Bishop of Canterbury, because he had possessed that Chair, Robert Archbishop thereof being then alive, and because he possessed another bishopric with it, viz. the bishopric of Winchester.  
At Friburgh (anciently called Tributia) the Bishops of Germany assembled themselves in a Council, 
At Friburgh, or Tribu●ia.  in which they declared the Archbishop of Bremen to be an Enemy to their country, except he delivered up the young Emperor Henry the Fourth, to be educated according to the Covenant made between the Princes and Bishops of Germany during his Minority.  
At Mentz, 
At Mentz. An. 1069.  An. 1069. a Council was assembled in order to a Divorce of the Emperor Henry 4. from his Wife, from which he was dissuaded by the Arguments of Petrus Damianus the Pope's Nuncio for that purpose.  
At Erfurd, 
At Erfurd, An. 1074.  An. 1074. the Bishop of Mentz assembled a Council, in order to an observance of a Command from Pope Gregory 7 th'. touching a separation of the Priests within the bishopric of Mentz from their Wives, or else to depose them from their Offices. By reason whereof, as also by reason of the Bishop's exaction of Tithes from Turingia, this Council risen in a tumult and great confusion re infecta.  
At Mentz, 
At Mentz, An. 1075.  An. 1075. the Bishop thereof (being commanded by Pope Gregory 7 th'. to separate the Priests from their Wives) convened a Synod, but the married Priests so terrified the Bishop of Mentz, and the Bishop of Chur the Pope's Nuncio, that this Council also, as the former, was dissolved, and nothing done.  
At worms the Emperor assembled all the Bishops of his Kingdom in order to a deposing of Pope Gregory 7 th'. 
At worms.  otherwise called Hildebrand, accused of Perjury, Ambition, Avarice, and Pride. The determination of this Council was, That he should be removed from the Popedom, which was Subscribed by all the Bishops present at the Council.  
At Friburgh, 
At Friburgh, An. 1076.  An. 1076. another Council was assembled, wherein the Princes of Saxony and Sweve appeared in favour of the See of Rome against the Emperor Henry the Fourth.  
At Rome by order of the Pope a Council was assembled in Lent, wherein the Emperor Henry 4 th' was not only anathematised, 
At Rome.  but also denuded (as far as in them lay) of his Imperial Dignity.  
At Brixia in the year 1080. 
At Brixia, An. 1080.  the Emperor Henry 4 th' assembled 30 Bishops of Germany and Italy, together with many Princes of the Empire: All which consented, That Hildebrand should be deposed from the Popedom, and Gilbertus' Bishop of Ravenna placed in his room.  
At Rome, 
At Rome, An. 1081.  An. 1081. the Emperor Henry 4 th'. with the Advice of the Roman Senate appointed a Council to be Assembled, wherein Hildebrand was deposed, and Gilbertus, otherwise Wigbertus, to succeed in the Papacy. This Council was called by the said Emperor soon after he had besieged and taken the City of Rome.  
At Beneventum a Council was Assembled by Pope Victor the Third, 
At Beneventum.  who before his Election to the Papacy was named Desiderius, Abbot in Cassinates, chosen by the Romans, not regarding Gilbertus whom the Emperor had made Pope. In this Council Victor the Third anathematised Gilbertus Bishop of Ravenna.  
At Clermont in Overnie of France in the year 1095. 
At Clermont. An. 1095.  Vrbanus the Second convened a great Assembly, wherein it was Ordained, That an Army should be raised for support of the distressed Christians in Jerusalem, and recovery of the Holy Land out of the hands of the Infidels: The which was likewise Ordained in the Council of Placentia, and other Councils of the lesser concern here omitted for brevity's sake. In the next, viz. the 12 th' Century, there were above 115 Councils: To instance in the most material of them may suffice for this abridgement.  
At Paris Vrbanus the Second, 
At Paris, the 12 th' Century.  at the complaint of Alexius Emperor of Constantinople against the rage of the Turks, assembled a Council of most Nations, and was present himself thereat. In this Council were appointed 100000 Men out of the Western Kingdoms for the Holy landlord.  
At Florence Pope Paschalis the Second convened a Council, 
●●. Florence, An. 1110.  wherein the Bishop of Florence was called to an account for Preaching openly, That Antichrist was already come; for which he was sharply rebuked, and commanded, That for time to come he should utter no such Doctrine.  
At London in the year 1102. 
At London, An. 1102.  in the Third year of the Reign of Hen. 1. King of England. Anselmus Archbishop of Canterbury assembled a Council, for prohibiting the Marriages of Priests; and the year following was constrained to convene another Council at St. Paul's in London, to make Constitutions for the punishment of such as defiled themselves with Sodomitical Lusts.  
At Mentz, 
At Mentz, 1106.  An. 1106. a great Council was assembled against the Emperor Henry 4. whom they condemned of heresy, which was Simony, because he would not resign the Right of Investure of Bishops into the Pope's hands, and having Excommunicated him, took off his Imperial Crown.  
At Troy's in France in the year 1107. 
At Troy's, An. 1107.  Pope Paschalis the Second convened a Council, which treated concerning the Investure of Bishops, not to be in the power of lay-people.  
At Triburia in Friburgh in the year 1119. 
At Triburia, An. 1119.  the Bishops of Germany assembled concerning the Investure of Bishops, and in opposition to the Emperor Henry the Fifth.  
At Senon a Council was called against Abelardus by reason of his heresy: 
At Senon.  He was also accounted an heretic in the Council of So●sson.  
The First Four Lateran Councils are comprehend under one and the same Title, 
1. Laleran, An. 1123.  as more favouring the Roman dissensions than the Doctrine and Discipline of the Church: The first under Henry the Fifth, and Calixtus the Second, which had 300 (or according to Bellarmine, 900) Bishops, and 22 Canons. In this Council Burdinus the antipope was laid aside, the vestures with the Ring and Staff were taken from the Emperor and given to the Pope; who absolved the Emperor and gave him power of electing Germane Bishops. In this Council there were appointed Crosses for the 〈◊〉 War, by means whereof Pardon of Sins might be grant 〈◊〉 them that undertook that War, and to their Families.  
The Second Lateran Council was under Lotharius the Emperor, 
2. Lateran, An. 1131.  and Innocentius the Second, which increased to the number of about 2000 Bishops. This Council omitted Thirty Canons lately published by Gratian from the Vatican Library, which Bellarmine is said to reject: It discharged Peter usurping the Roman See after Leo, under the name of Anacletus the Second; branded for heretics Peter of Bruis, and Arnaldus of Brixia the Disciple of Peter Abullard, who rejected Pedobaptism, Church-buildings, and the Adoration of the Cross: It proclaimed these lay-people to be Sacrilegious, and incur the danger of eternal damnation, who receive Tithes; and deprived Usurers of Christian Burial, and Cursed them to Hell.  
The Third Lateran Council was under Frederick the First and Alexander the Third, 
3. Lateran.  by an assembly of 30 Bishops, who made up the difference between this Alexander, and one Octavianus and his Successors Gindon and John, a Germane taking up the quarrel with him; which dissensions divided Europe into parties. Also the Albigenses under the name of Cathari, Publicans & Paterini, taking their Rise from the Waldenses, were here condemned; Lombard, who affirmed that Christ according to his Manhood was nothing, was Censured; Ordinations made by schismatics wholly abrogated, Private Oratories and Priests for Leprous persons appointed, and the manner of Visitations by Archbishops, Bishops, and Deacons prescribed.  
The Fourth Lateran Council was under Frederick the Second, 
4. Lateran.  and Innocentius the Third, with 400 Bishops and 80 other Fathers. This Council rejected the Book of Joachimus the Abbot against P. Lombard; established Transubstantiation, Auricular Confession, and the Papal Absolution of Subjects from their Allegiance: It exacted an Oath from Secular Magistrates to expel heretics nominated by the Pope. This Council by Indulgencies encouraged those that went with Crosses for recovery of the Holy Land under Godfrey of Boulogne; prohibited Plurality of Benefices, and Sale of relics.  
At Papia in the year 1160. 
At Papia, An. 1160.  the Emperor Frederick the First convened a Council, occasioned by the difference between Alexander 3. and Victor the 4 th'. for the Popedom after the death of Adrian the Fourth. In this Council Victor the Fourth was declared Pope. Whereupon Alexander the Third convened a Council at Clerimont, in which he Cursed the Emperor, Pope Victor, and their Adherents.  
At Rome in the year 1180. 
At Rome, An. 1180.  a Council of One hundred and eighty Bishops was convened by the Pope's Authority. Their Consultations and Canons were touching the Form of Electing Popes for the future, also touching Ecclesiastical Dignities and Discipline, touching Excommunication, Residence, Continency, Plurality, Patronage, Presentations, Festivals, Usurers, Jews and Saracens, and the like.  
At Rome in the year 1215. 
At Rome, An. 1215.  Pope Innocentius the Third Convened a General Council, wherein the Doctrine of Transubstantiation was ratified. This was another of the Lateran Councils.  
At Lions Two Councils, 
1. At Lions, An. 1244.  the First called by Frederick the Second, and Innocentius the Fourth, about the year 1244. In this Council the Emperor that deserved so well of the Christian Church against the Infidels, was after Four Excommunications deposed by the Pope, prohibiting that any should name him Emperor: Being thus Deposed, he defends his Right by his Gibilines against the Guelphs of the Papal party. In this Council appears no other precedent than the Pope himself, who with 140 Bishops and Abbots, endeavoured under colour of recovering the Holy Land, by the Fifths of the Church to redeem the East. By this Council new Festivals were instituted for the canonising of Roman Saints. The Seventeen Institutions ascribed to this Council, are said to be rather Political and Polemical than Ecclesiastical, and (according to Bellarmine) are to be found in the Sixth of the Decretals.  
At Lions the other of these Two Councils was under Rodolphus the First at Haspurge, 
2. At Lions.  procured by Gregory the Tenth, consisting of at least Seven hundred Bishops: In this Council was present Michael Paleologus the Greek Emperor. Aquinas sent for to this Council dies in his way thither, where Bonaventure, after his being created Cardinal, died also. In this Council the Pope in behalf of the Holy Land requires a Subsidy, the Tenth of all Ecclesiastical Rights for the space of Six years. In this Council also it was ordered, That there should be Bowing at the Name of Jesus. There were 31 Constitutions or Canons made by this Council, which though omitted by the Summulists, may yet be found in the Sixth of the Decretals.  
At Vienna in the year 1311. 
At Vienna. An. 1311.  under Henry the Seventh, Clement the Fifth being Pope, a General Council of above Three hundred Bishops was convened. In this Council was set forth a Book of Papal Decrees, called Liber Clementiarum, which was Ratified by this Council. In this Council also it was, that Corpus Christi Day was Ordained to be a Festival, and the Order of templars to be quite abolished; 
Antonin. Hist. Par. 3. Titat. 3.  for the Jerusalem-Expedition being strongly urged in this Council, the templars are removed out of the way for murdering of the abissins' Ambassador, and other Impieties and Heresies. Whether Trithemius did hit the mark or not, it matters not; Notorious it is, That the templars were very Rich, but if that were a sufficient pretence for heresy and Expulsion (as some conceive) then there would be no such thing as the Church of Rome, at least not Orthodox. In this Council the Clergy are permitted to take an Oath of Allegiance, not of Subjection to Lay-Magistrates; also Peter John, the Dulcimists, the Fratricelli, the Begwards and Begwins, together with the Lollards were condemned. Peter John was condemned for denying the Soul to be the Form of Man; a new piece of heresy against Natural Philosophy. The Constitutions of this Council under the name of Clementine, are extant in 5 Books for a Supplement of the Canon Law; in which is that Famous Decree of Constituting Professors to be maintained by a competent Stipend at the Court of Rome, at the universities of Paris, Oxford, Bononia, and Salamanca, 
●lem. l. 5. Tit. 1. Gal. l. 7.  for the instructing in Hebrew, Arabic, and Chaldee Languages, whereby the Jews and Mahometans might the more easily be converted to the Faith.  
The Fifth Lateran Council in the year 1311. 
5. Lateran, An. 1311. Vid. Prideaux his Synopf. of Councils. Edit. 5. Oxon.  under Maximilian the Emperor, Pope Julius 2. Precedent thereof. It is supposed this Council was called for disannulling another at Pisa, where some Cardinals were met against the Pope. There were convened at this Council 114 Bishops, and it had Twelve Sessions, Five whereof were under Julius, the other Seven were finished by Leo the Tenth. Suarez, Cajetan, and Navarr profess this to be a rejected Council. The pragmatical Decree made at the Council of Basil, in defence of Ecclesiastical Liberty against Popish Usurpations, is here discussed and exploded. The Immortality of the Soul is here also defended, concerning which many at that time doubted it, others wantonly disputed it, and others heretically denied it. By this Council a restraint is laid on such as in Preaching wrest the Scriptures at their pleasure to uphold and disperse some strange Opinions; which restraint extended also to the impression of Books not Orthodox, nor licenced as such.  
At Pisa in the year 1409. 
1. At Pisa, An. 1409.  was (as some call it) a General Council, consisting of Twenty three Cardinals, Three patriarches, Three hundred Archbishops and Bishops, Twenty eight governors of Monasterics, and a very great number of Divines, and ambassadors of Princes. The great dissension between Benedict the Twelfth, and Gregory the Thirteenth was the occasion of this great and First Council at Pisa. Both which having been Summoned, are Deposed by this Council, and Alexander the Eighth placed in St. Peter's Chair, which yet removed not the said dissension; notwithstanding Alexander thus Elected, is reckoned in the Catalogue of the Popes. There were Twenty three Sessions of this Council, the Acts thereof Printed at Paris, An. 1612. are extant. They that conceive this to be a Headless Council (as Antonius and others) because called in a tumult by the Cardinals, 
3 Part. Tit. 22. c. 5 sect. 2, 3.  without the Pope's Authority, do not consider, that at this time the Head was troubled with a double Impostume, and could not be consulted in the case.  
At Pisa the Second Council was called by Maximilian the Emperor, 
2. At Fisa.  and Lewis the French King against Pope Julius the Second, who (it seems) had obliged himself by an Oath to have a General Council within Two years' next after his Election to the Popedom; but this not being performed, some of the more eminent Cardinals, under the protection of the said Emperor and French King, meet at Pisa, and Summon the Pope to make his appearance there; instead whereof he Excommunicates them, the French King and all, the Emperor himself scarce escaping that Thunderbolt, and calls a Lateran antisynod at Rome, before whom he excuses his Oath, clears himself, and dies. Leo the Tenth succeeds, continues the Council, and ratifies many Decrees; whereupon the Pisan Cardinals upon their Submission are restored to their former Dignity.  
At Constance in the year 1414. 
At Constance, a, 1414.  a Council with great difficulty was convened by the Emperor Sigismond and Pope John the Twenty third, consisting of about a Thousand Bishops and Doctors, for the removing of the Popish Schisms out of the Western parts, and pacifying the Difference which happened between Three Popes, all striving for the Popedom, viz. Pope John, whom the Italians set up: Pope Gregory, whom the French set up: and Benedict, whom the Spaniards set up. This Council continued Four years; in which all the said Three Popes were Deposed, and Martinus elected Pope. Others relate it somewhat otherwise, As if after Gregory the Eleventh, some Cardinal's exalted urban the Sixth, Others, Clement the Sixth. The Nations are divided into parties, our English (as reported) with the French and Spaniard adhering to Clement; but urban dying at Rome, Boniface the Ninth supplies his place, but Angelus a certain Venetian succeeds him under the Title of Gregory the Twelfth. Clement also being removed, had for his Successor Peter de Luna a Spaniard, under the name of Benedict the Thirteenth. To quench this Flame the Cardinals and Bishops meet at Pisa, where they exalt one of Crect unto the Papal dignity, under the Title of Alexander the Fifth, who sickening suddenly by an Intoxicating clyster, was succeeded by John the 23 d by Election of the Pisan Cardinals, who by the persuasion of the said Emperor Sigismond called this Council at Constance, and being present at the same, was first accused of many Crimes, then deposed, and Martin the Fifth exalted by the Council to the Papal dignity. There were 45 Sessions of this Council, in the 8 th' whereof the Doctrine of John Wickliff was condemned, and his Bones ordered to be taken out of his Sepulchre and burnt. In the 13 th' Session thereof it was Ordained, That no Priest under pain of Excommunication, should Communicate unto the People under both kinds of Bread and Wine. In the 15 Session the Sentence of Condemnation of John Husse was read and published, and himself delivered to the Secular power to be Burned. In the 21 Session, the Sentence of Condemnation was pronounced against Jerome of Pragus, who was also delivered to the Secular power to be Burned. In this Council it was concluded, That the Council is above the Pope; and that an Engagement with an heretic is not to be kept.  
At Basil in the year 1431. 
At Basil, An. 1431.  was a General Council assembled, procured by Sigismond the Emperor of Pope Martin the Fifth, and afterwards of Eugenius the Fourth, in which Cardinal Julian of Arelatum was precedent, and which continued high 18 years. This Council had 45 Sessions, and therein it was also concluded (as in that of Constance,) That the General Council is above the Pope, and that all persons ought to be subject to the General Council, as Children are subject to the Authority of their Mother. Pope Eugenius confirmed this Council by his Apostolical Letters, whom notwithstanding this Council Deposed, and in his room chose Amedeus Duke of Savoy to be Pope, whom they called Foelix the Fifth. For this Pope Eugenius the Fourth, being Cited and not appearing, was deposed for his Contempt, and the said Amedeus Duke of Subaudis, who lived an hermit's life in the Mountains of Ripalia, by the Cardinals is exalted to the Popedom, and styled Foelix the Fifth. Besides the Delaring here, That the Council is above the Pope, it was also Confirmed, That the Pope cannot dissolve, prolong or remove the Council, being lawfully called. Yet after this the said Eugenius constituted an antisynod at Ferraria, which afterwards removed to Florence, where he acted with the Greeks, the Emperor being present. They of Basil mean while confirmed the pragmatical Decree, condemned Popish Bastardy, suppressed Concubines, and ordered how the Jews might be brought to Christianity. They declared also the Blessed Virgin to be free from the contagion of every sin, indulged to the Lay- Bohemians the use of the Cup in the Eucharist, and by reason of a raging Pestilence betake themselves from Basil to Lausanna, where the Emperor Frederick persuaded Duke Amedeus to renounce the felicity of Pope Foelix,  
At Florence in the year 1431. 
At Florence, An. 1431.  a Council contrary to that at Basil, yet fitting and undissolved, was held by Pope Eugenius, in which Council the Emperor and Patriarch of Constantinople with many others of the Greek Church were present, and were prevailed with to yield to many points of the Roman Church, but could never be prevailed with to believe their Doctrine of Transubstantiation. This Florentine Council began at Ferraria, under Albertus' Emperor, and Eugenius the Fourth, whence by reason of a Pestilence did remove to Florence, and was there finished. In this Council were 141 Bishops, the Pope himself precedent, who deposed the Council of Basil at the same time by the Germans. There were present at this Council John Paleologus, with the Patriarch Joseph, and the Greek Doctors. In this Council were debated certain Articles concerning the Proceeding of the Holy Ghost, with the Addition to the Nicene 'greed [and from the Son,] Purgatory, the Power of Suffrages, and Sacrifice to the Dead, Transubstantiation, the administering unleavened Bread in the Eucharist, but especially the Pope's Supremacy.  
At Trent in the year 1546. 
At Trent, An. 1546.  was a Council held under Charles the Fifth and Ferdinand the Tenth, Paul the Third, Julius the Third, Pius the Fourth, Marcellus, and Paulus the Fourth; for this Council continued no less than Eighteen years: At the First Meeting whereof were Seven Sessions in the Two first years thereof. The Second Meeting was in the time of Pope Julius the Third, An. 1551. which had only Three Sessions, by reason of Wars happening in Germany: At this Second Meeting the French King protested against this Council. The Third Meeting whereof was Nine years after the Second, it being appointed by Pope Pius the Fourth; there having been in this interval, since the Second Meeting, when Julius the Third was Pope, two other Popes, viz. Marcellus and Paulus the Fourth. At this Third and last Meeting there were Nine Sessions, the Last whereof began the Third of December, An. 1563. The chief Points treated of at this Council were concerning the Scriptures, Original Sin, Justification, the Sacraments in General, Baptism, the removing of the Council, the Eucharist, Repentance, extreme Unction, Communion of lay-people under one kind, the Sacrifice of mass, the Sacrament of Order, Matrimony, Purgatory, Worshipping of relics, Invocation of Saints, Worshipping of Images, Indulgencies, the choice of Meats, fast, and Festivals. The History of this Council of Trent is extant.  
Of National Councils there have been many more than what are before mentioned, as here in Britain, and in Italy, Spain, France, Germany, the Eastern, and African. In Italy it is said, that there are to be found 115 such Synods, as it were National, which go under the Name of Roman Councils. But such as are of the most Remark in each of these countries, and the principal things they determined, you may find a touch of (and no more) in the Learned Bishop Prideaux his Synopsis of Councils, in the Eighth Chapter, Edit. 5. Oxon. 1672.   

CHAP. XLII.  
Of Excommunication.  

1. What Excommunication is: It is Twofold.  
2. By what Appellations the Greater and Lesser Excommunication are known and distinguished; their respective derivations and significations, and the nature of each.  
3. Ecclesiastical Censures in the general may be Threefold.  
4. What the Law intends by Excommunication ipso facto.  
5. What the Excommunicate is not debarred of by Law.  
6. Legal Requisites to the due pronunciation of the Sentence of Excommunication.  
7. What course the Law takes with an Excommunicate, after Forty days so perisisting obstinate.  
8. The several Causes of Excommunication ipso facto, enumerated by Lindwood.  
9 The Causes of Excommunication ipso facto, by the Canons now in force in the Church of England.  
10. The several Writs at Law touching persons Excommunicate; and the Causes to be contained in a Significavit, whereon the Excommunication proceeded.  
11. What the Writs de Excommunicato Deliberando, also de Excommunicato Recipiendo do signify in Law.  
12. A sufficient and lawful Addition to be in the Significavit, and in the Excom. Capiend. Vid. Sect. 10.  
13. Several Statutes touching Persons Excommunicated.  
14. Excommunication for striking in the Church.  
15. Whether a Bishop hath Jurisdiction, or may Cite a man out of his Diocese.  
16. What are the Requisites of a Certificate of Excommunication for stay of Actions, and how it ought to be qualified.  
17. A Significavit of Excommunication, for not Answering Articles, not showing what they were, not good.  
18. By whom an Excommunication may be Certified, and how.  
19 In what case the Significavit of an Excommunication ought to express one of the Causes mentioned in the Statute.  
20. Whether a General Pardon doth discharge an Excommunication for Contempt precedent to the Pardon, or shall discharge the Costs of Court thereon?  
21. A man taken upon an Excom. Cap. and discharged, because the Significavit did not express the party to be Commorant within the Bishop's diocese at the time of the excommunicate.  
22. Where a man is twice Excommunicated, whether an Absolution for the latter shall purge the first Excommunication.  
23. Whether a Prohibition lies to the Ecclesiastical Court, upon Costs there given, not in an Action at the Suit of the party, but upon an Information there exhibited.  
24. What Remedy in Law for a party wrong fully Excommunicated, and so remaining Forty days, without suing a Prohibition.  
25. Whether a Person taken by a Capias de Excom. Capiend. be Bailable or not; And whether the Bishop may take Bond of the Excommunicate to perform Submission for their Absolution.   
(1.) EXcommunication, 
An. 23. H. 8. c. 3.  commonly termed in the Common Law, in the Law-French thereof, Excommengement, is a Censure of the Church, pronounced and inflicted by the Canon or some Ecclesiastical Judge lawfully Constituted, whereby the party against whom it is so pronounced, is pro tempore deprived of the lawful participation and Communion of the Sacraments. And is also sometimes (as to Offenders) a deprivation of their Communion, and sequestration of their persons from the Converse and Society of the Faithful. And therefore it is distinguished into the Greater and Lesser Excommunication; the Greater comprising as well the latter as the former part of the abovesaid definition or description; the Lesser comprising only the former part thereof. de Except. c. a nobis. Lindw. de Cohab. Cler. gl. in verb. Sacramenta. Excommunicatio, quasi, extra Communionem. For Excommunication is, Extra Communionem Ecclesiae separatio; vel Censura Ecclesiastica excludens aliquem à Communione Fidelium 
a 11. quest. 3. cap. nihil. in Jur. Can.  This Ecclesiastical Censure, when it is Just, is not by any means to be despised or opposed; for Christ himself is the Author thereof 
b Matt. 18. 17. 1 Cor. 5. 9, 11. 2 Thess. 3. 14.  Anciently among the Hebrews, such persons as were Excommunicated, were termed Aposynagogi, as being quasi Synagoga exacti, and to be shunned or avoided of all men until they repent. That of our Saviour in Matth. 18. 17. [Let him be unto thee as an Heathen man, and a Publican] seems too refer to some such Excommunication, the power whereof by way of Judicature being then in the Jewish Sanhedrim, or college of Elders.  
(2.) This Ecclesiastical Censure, when limited or restrained only to the Lesser Excommunication, the Theologists will have to be understood by the Greek word Anathema, 
Rom. 9 3. Gal. 1. 8. 1 Cor. 16. 22.  Accursed or Separated; and when it extends to the Greater Excommunication, then to be understood by the Syriack word Maran-atha, or [Our Lord cometh] Anathema Maran atha. [Anathema] Let him be Accursed, quasi, Devoted to the Devil, and separated from Christ and his church's Communion: [Maran-atha] Some take this for a Syriack word 
c Bez. Annot. in 1 Cor. 16. 22. . Others, not so well satisfied with that judgement, will have it to be a Chaldee word, yet used in the Hebrew, and familiarly known among the Greeks 
d Calv. Com. ibid. & Buxtorf. Lexic. . [Maran-atha] viz. [Our Lord cometh,] for Maran is, our Lord, and atha, cometh; or rather three words more properly, viz. Mara-na-atha, Our Lord cometh. Being a word used in the greatest Excommunication among the Christians, intimating or implying, That they summoned the person Excommunicated before the dreadful Tribunal at the last coming of the Son of God, or that such as were under this Censure of the Church, were given up and reserved to the Lords coming, to be judged by him; and mean while (without Repentance and Absolution) are to expect nothing, but the Terrible coming of Christ to take Vengeance of them. To which that prophecy of Enoch seems to allude, Behold, the Lord cometh with Ten thousands of his Saints, to execute judgement upon all, etc. The Venerable Mr. Bede doth suppose, that this answers to the heaviest Curse amongst the Jews; for they had (1) their [Niddui,] (2) their [Cherem] that is, Anathema. This their Cherem, was either the simple and single Anathema, or their Shematha or Maranatha: For this dreadful kind of Excommunication, here called Maran-atha, the Jews called Sammatha; Sem signifying the name of God Tetragrammaton, or Jehovah, and atha, he cometh; though others will have that Sammatha to be derived from [Sam] that is [their] and [Mitha] that is [death] their death. But not to insist further on the words whereby this Ecclesiastical Censure of Excommunication is signified; for that is but as a Flash of Lightning, in respect of the Thunder of the Curse itself.  
(3.) Although every Excommunication is an Ecclesiastical Censure, yet every Ecclesiastical Censure is not an Excommunication; for an Ecclesiastical Censure may be as well per Suspensionem, and per Interdictum, as per Excommunicationem. Extr. de verb. sig. c. quaerenti. Hanc autem Censuram fulminare possunt Eccles. Praelati, quibus ab homine, Lege, vel Canone, aut Consuetudine tribuitur Jurisdictio Ordinaria. De Offic. Ord. c. cum ab Ecclesiar.  
4. It hath been sometimes questioned, what the Law intends by Excommunication ipso facto; that Clause imports, ac si diceret, ipso jure, that is, nullo hominis ministerio interveniente. Not. per Arch. de Rescrip. c. 1. verb. ipso jure. li. 6. Lindw. de Offic. Archid. gloss. in c. Vt Archidiacont, verb. ipso facto. And regularly when a person is Excommunicated, it is not intended only of the Lesser Excommunication, Nam Excommunicatio simpliciter prolata, intelligitur de Majori. Extr. de Sen. Excom. c. Si quem 11. q. 3. debent. & Lindw. glos. verb. Excommuni. c. Exhorrenda. De Procuratorib.  
(5.) Notwithstanding, the Law doth not exclude the Excommunicate from such lawful Acts, as sine quibus vix potest consistere vita hominis. Glos. ibid. in verb. Actu Legitimo. And although depending the Excommunication, he is disqualified to commence Actions at Law as a Plaintiff, yet he may ad sui defensionem appellare, & caetera in Judicio facere & exercere, quae ad ejus defensionem pertinent. Gloss. Lindw. ibid. And according to Lindwood, he may Matrimonium Contrahere; etiam & Testari. Lindw. ibid.  
(6.) This Sentence of Excommunication ought not to be pronounced against Offenders otherwise than rite & cum debita solennitate, that is, juris ordine servato; and therefore the Canon requires, That there issue a Summons or previous Citation to the Delinquent, before Sentence of Excommunication be pronounced against him. Primo vocetur Delinquens propositurus Causam rationabilem, quare pronunciari non debeat incidisse in dictam Sententiam. Ad effectum namque quod aliquis denuncietur Excommunicatus, à Canone vel Constitutione requiritur Citatio praevia. C. Si per vim vel alio modo. l. fin. de Man. & Obed. c. inter quatuor. de Cens. c. fi. in Oec. cum glos. So likewise the Canon is, That Nemo Excommunicationem promulget, ubi Excessus non est manifestus, nisi Monitione Canonica praecedente. Lindw. de Sentenia Excom. c. Vt Archidiaconi. unless the same party for the same cause be Excommunicated again, in which case there needs not any previous Citation or Monition as before; Nam Excommunicatio quae sit saepius ex eadem Causa, potest fieri nulla Citatione, nullaque Monitione praevia. Ibid. c. praeteria. ver. Excommunicentnr: For in truth this Excommunication in such case is not any new Sentence of Excommunication, but only a renovation of the former with an Aggravation; for which reason it is, that such Excommunication as is again pronounced against the same person for the same cause repeated by him, may be nulla Citatione, nullave Monitione praecedente. Ibid. & Extr. de Judaeis. c. ita quorundam. Whence it doth appear, That a person Excommunicated may be Excommunicated again, either for the same or some other new Cause. Ibid. & 3. q. 4. engeltrudam. And although the First Excommunication is in effect sufficient for the ejecting such an one out of the Church, so that he who is once cast out of the Church, amplius excludi non potest; yet by this Second Denunciation there follows another effect, and that is, That thereby he may be reputed and held by all the Faithful in all places, as a person utterly shut out of the Church, donec per suum Judicem secundum formam Ecclesiae fuerit absolutus. Gloss. ibid. verb. & denuncientur.  
(7.) Also, 
Old N. P. 34. 35. b.  when a person Excommunicated hath Forty days persisted in his obstinacy contrary to Law under that Sentence, the Bishop may then make his humble address to the King for the apprehending and imprisoning such obstinate Excommunicates; but this may not be done by any inferior to a Bishop, Nam ad rogatum praelatorum inferiorum Rex non consuevit scribere pro Captione Excommunicatorum. Lindw. de Sententia Excom. c. praeteria. glos. in verb. Praelatorum. And therefore if a man be Excommunicated by any inferior to a Bishop, as by a Dean, Archdeacon, or the like, yet the Supplication for his majesty's Writ ought to be by the Bishop of that diocese, and in his Name; Nam Inferiores Episcopis non possunt invocare Brachium Seculare. Ibid. & Lindw. de Cohab. Cler. & Mul. c. 1. §. & si nec. ver. Brachium Seculare. And in case the Bishop shall herein refuse to do what the Law requires, he may be constrained thereto by the Archbishop. Ibid. & de jur. patron. c. nullus. Nor can the Excommunicated person, who (after Forty days persisting in his obstinacy) is upon the King's Writ (on the Significavit) pro Corp. Excom. Capiendo apprehended or like to be apprehended, evade Imprisonment, or defend himself by an Appeal, or by virtue thereof, or by showing the same to the Temporal Judge, that so under pretence of a dependency of an Appeal he may escape Imprisonment; because such Appeal as to the validity or invalidity thereof, or teneat vel non teneat, legitima vel non legitima, falls under the scrutiny and examination, not of the Temporal, but Ecclesiastical Judge; and therefore si talis indag● sive discussio pertains not to the Secular Judge, it were frivolous to allege that before one not qualified to examine the merits of the Appeal. Dict. c. praeteria. glos. in verb. Dari debet. And as persons Excommunicated cannot legally have any shelter or subterfuge under pretence of such Appeals: so neither do the Canons suffer the Contemners of this Sentence of Excommunication to go unpunished; under which number regularly and generally are computed all such as animo indurato do persevere under Excommunication by the space of Forty days, according to the custom of the Realm of England. Lindw. de Sententia Excom. c. ut Archidiaconi. glos. in verb. Contemnentes. But more particularly the Canons hold them Contemners of this Excommunication, who add Culpam culpae; or go into the Church, albeit Divine Service be not then celebrating, unless it be to hear the word preached, which being ended, he is immediately to departed; or stand at the Church-door in the time of Divine Service, and hearing the same, albeit he go not within the Church itself; or thrust himself into the company of others, when it is in his power to avoid it; or lastly, when he continues too long secure under such Sentence of Excommunication without repentance, whereby the Law concludes him so manacled by his obstinacy, as no Spiritual physic can have any operation upon him: And although regularly the Return of such a one is to be expected usque ad annum; yet in this Kingdom (quoad incovationem Brachii Secularis) it is sufficient if Forty days be expired after his Excommunication. Ibid. c. 1. authoritate glos. in verb. Contemnentes. And whereas we often in the Law meet with certain Cases of Offences, incurring the Sentence of Excommunication ipso facto, that is as aforesaid, nullo hominis ministerio interveniente; Requiritur tamen, even in that case, Sententia Declaratoria. C. cum secund. Leges. de Haeret. li. 6. & Lindw. de Foro Comp. c. 1. glos. in verb. ipso facto.  
(8.) It is therefore not impertinent here to insert, what principally those Offences are, on the Guilty whereof the Law doth inflict this Excommunication ipso facto. Lindwood tells us, that there are found among the Canons and Constitutions Provincial these Cases following, wherein Excommunication ipso facto is incurred; viz. (1) A wilful and malicious impeding the execution of the Canon against Incontinency, specially in ecclesiastics as to Concubines. (2) A clandestine and surreptitious Proceeding at Law, even to the Writ of Banishment, against an innocent person, and ignorant of the proceed. (3) Bigamy. (4) False Accusing of any Innocent clergyman before a Temporal Judge, whereby he happens to suffer under the Secular Power. (5) A laying Snares to entrap any in holy Orders; whereby afterwards to charge them falsely before the Secular Powers with Crimes, whereof they were not guilty. (6) A violation of lawful Sequestrations made by the Bishops, their vicar's general, or principal Officials. (7) The exercise of Ecclesiastical Jurisdiction by any Clerk married, or by any Lay-person, in matters only and properly pertaining to the Cognizance of the Church. (8) Disobedience to the Gregorian Constitution, forbidding the holding of Two Benefices Incompatible cum Cura animarum without a Dispensation. (9) A procuring to be Presented to a Benefice that is already full of an Incumbent, by virtue of the Writs of Quare non admisit, or Quare impedit, or the like. (10) Abettors and Advisors of any to fraudulent Conveyances or Deeds of Gift in fraudem Ecclesiae, Regis Creditorum, aut haeredum. (11) All such as hinder any of what quality soever, that are legally Testable, from making their last Wills and Testaments, or afterwards do unjustly obstruct the due execution of the same. (12) All such as hinder the devotion of the people, in making their Offerings and paying their Tithes, converting them to their own use. (13) All such as deny the gathering of the Tithes of any Fruit, or molest and hinder the Collectors thereof. (14) All lay-people who usurp upon such Oblations and Offerings as are due and appertain only to Ecclesiastical persons, without their assent and the assent of the Bishop. (15) Sacrilegious persons, and all such as invade the just Rights, Liberties, or Revenues of the Church, or otherwise unjustly possess themselves de bonis Ecclesiasticis. (16) All bailiffs and other Officers, that unjustly enter upon the Goods of the Church, or unduly exact from the same, or commit Waste upon any the Revenues of a Church vacant. (17) All Oppugners of Episcopal Authority, or that resist and oppose the exercise of Ecclesiastical Jurisdiction, and all such as dissuade others from their due Obedience thereunto. (18) All such as being imprisoned for their Contempt to some Ecclesiastical Sentence, are thence set at liberty contrary to the Liberties and customs of the Church of England, being Excommunicate persons when they were first apprehended. (19) All such as violently usurp upon the propriety of such Trees and Fruits as grow in the churchyards, rooting them up or felling them down, or mowing down the Grass thereof, contrary to the will and without the consent of the Rector, or Vicar of any Church or Chappel, or their Tenants. (20) All such as should non ritè solemnize Prohibited Marriages, that is, such as have any Canonical Impediment. (21) All such as contrary to the true Catholic sense shall assert any thing, or lay down positions, or make propositions, savouring of heresy, publicly in the Schools. (22) All such as in their Preaching or otherwise shall violate the Canon, that enjoins a due examination and approbation of persons before they are admitted to Preach the Word of God. (23) All such as touching the Sacraments assert any thing beside or contrary to the determination of the Church, or call such things into doubt publicly, as are defined and stated by the Church. (24) All such as in the Universities do (after a premonition to the contrary) hold any Opinions, or assert any Doctrines, Propositions or Conclusions, touching the Catholic Faith, or good manners, of an ill tendency, contrary to the determination of the Church. (25) All such Clerks as without Ecclesiastical Authority, shall of themselves or by any Lay-power intrude themselves into the possession of any Parochial Church, or other Ecclesiastical Living, having Curam animarum. These Cases, and some others, now not of use in this Realm, are enumerated by Lindwood. Lindw. de Sententia Excom. c. ult. gloss. in verb. Candelis accensis. But there are very many other Cases in the Canon Law that fall under this Excommunication ipso facto, by which in the Law is ever understood the Major Excommunicatio, and was wont to be published and denounced in the Church Four solemn days in every year, when the Congregation was likeliest to be most full, and that in Majorem terrorem.  
(9) The Causes of Excommunication ipso facto, according to the Constitutions and Canons Ecclesiastical of the Church of England, now in force, are such as these, viz. (1) Impugners of the King's Supremacy. (2) Affirmers of the Church of England, as now established, to be not a true and Apostolical Church. (3) Impugners of the public Worship of God, established in the Church. (4) Impugners of the Articles of Religion, established in the Church of England. (5) Impugners of the Rites and Ceremonies, established in the Church of England. (6) Impugners of the Government of the Church by Archbishops, Bishops, etc. (7) Impugners of the Form of making and Consecrating Archbishops, Bishops, etc. in the Church of England. (8) Authors of Schisms in the Church. (9) Maintainers of schismatics, Conventicles, and Constitutions made in Conventicles. Likewise by the said Canons, the Ecclesiastical Censure of Excommunication is incurred by all such Ministers, as Revolt from the Articles unto which they subscribed at their being made Ministers, and do not reform after a month's suspension: Also by all such persons as refuse the Sacraments at the hands of Unpreaching Ministers, after a month's obstinacy, being first suspended: Also by all such Ministers as without their Ordinaries licence under his Hand and Seal, appoint or keep any Solemn Fasts either publicly or in private Houses, having been formerly suspended for the same fault; and finally by all Ministers who hold any private Conventicles, to Consult on any thing tending to the impeaching or depraving of the Doctrine of the Church of England, or of the Book of Common Prayer, or of any part of the Government, and Discipline now established in the Church of England, which by the Seventy third Canon, is Excommunication ipso facto.  
(10.) Touching persons thus Excommunicated, persisting Forty days in their obstinacy, there are Three several Writs at the Law, issuing from the Secular power, viz. Excommunicato Capiendo: Excommunicato Deliberando: Excommunicato Recipiendo. The Excommunicato Capiendo is a Writ issuing out of Chancery, directed to the Sheriff, for the apprehending and imprisoning of him who hath obstinately stood Excommunicated Forty days; for the Contempt to the Ecclesiastical Laws, of such not in the interim obtaining their Absolution, being by the Ordinary certified or signified into Chancery, the said Writ thence issues for the apprehending and imprisoning them without Bail or Mainprize, until they Conform 
b F. N. B. fo. 62. Stat. 5. Eliz. c. 23. Orig. Reg. Writs, fo. 65, 67. . Which Writ as by the Statute of 5 Eliz. c. 23. is to be awarded out of the high Court of Chancery, so it is to issue thence only in Term time, and Returnable in the King's Bench the Term next after the Teste thereof, and to contain at least Twenty days between the Teste and the Return thereof. And in case the Offender against whom such Writ shall be awarded, shall not therein have a sufficient and lawful Addition, according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained, That the Excommunication doth proceed upon some cause of Contempt, or some Original matter of heresy, or refusing to have their Children baptised, or to receive the Holy Communion, as it is now used in the Church of England, or to come to divine Service, now commonly used in the said Church, or Error in matters of Religion or Doctrine now received and allowed in the said Church, Incontinency, Usury, Simony, Perjury in the Ecclesiastical Court, or Idolatry: That then all pains and Forfeitures limited against such persons Excommunicate by the said Statute of 5 Eliz. 23. by reason of such Writ of Excom. Capiend. wanting sufficient Addition, or of such Significavit wanting all the Causes aforesaid, are void in Law 
c dict. St. 5. El. 21. .  
(11.) The Excommunicato Deliberando, is a Writ to the Under-Sheriff for the releasing and delivery of the Excommunicate person out of Prison, 
Old N. B. 35. a.  upon Certificate from the Ordinary into the Chancery of his Submission, Satisfaction, or conformity to the Ecclesiastical Jurisdiction 
d F. N. B. fo. 63. Reg of Writs, fo. 67. . And the Excommunicato Recipiendo, is a Writ whereby Excommunicated persons, who by reason of their Obstinacy having been committed to Prison, and thence unduly delivered, before they had given sufficient Caution or Security to obey the Authority of the Church, are to be sought for, and committed again to Prison 
e Rep. of Writs 〈◊〉 . This Sentence of Excommunication by the 65 th' Canon pronounced against any, and not absolved within Three months' next after, is every Sixth month ensuing, as well in the Parish Church, as in the Cathedral of the diocese wherein they remain, by the Minister openly in time of Divine Service upon some Sunday, to be denounced and declared Excommunicate; and where by the 68 th' Canon Ministers are enjoined not to Refuse to Bury, it is with an exception to such persons Deceased, as were denounced Excommunicated Majori Excommunicatione; for some grievous and notorious Crime, and of whose repentance no man is able to testify 
f C●n. 65. 68 .  
(12.) A Sentence was given in the chancellor's Court at Oxford at the Suit of B. against H. and thereupon H. was Excommunicated, and taken in London, upon the Writ of Excom. Capiendo. And it came into the King's Bench, where he pleaded, That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be discharged. And the Opinion of the Court was, That by the Statute of 5 Eliz. the Penalties mentioned in the said Statute are discharged, but not the Imprisonment nor the Excommunication 
g Hill. 6 Car. B. R. Hughes verse. Bendy. Jones Rep. .  
(13.) By the Statute of 9 Ed. 2. 12. the Writ de Excom. Capiendo may be awarded to take a Clerk Excommunicate for Contumacy, after Forty days. And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be sent to an Ordinary to Absolve an Excommunicate, but where the King's Liberty is prejudiced. By the Statute of 5 & 6 Ed. 6. cap. 4. striking, or laying of violent hands upon any person in a Church or Church-yard, is Excommunication. And by the Statute of 2 Ed. 6. 13. it is Excommunication to disobey the Sentence of an Ecclesiastical Judge in Causes of Tithes. By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popish Recusant standing Excommunicate; and by the Statute of 3 Jac. 5. a Popish Recusant convicted, shall stand as a person Excommunicate. And by the Statute of 3 Ed. 1. 15. he that is Excommunicated shall be debarred of Mainprize.  
(14.) V against E. in the Ecclesiastical Court, where the Suit was for Striking in the Church, which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipso facto. By which he surmised him incidisse in poenam Excommunicationis. And being granted, if, etc. And Ashley shown cause why it should not issue, viz. There aught to be a Declaration in the Ecclesiastical Court of the Excommunication, before any may prohibit him the Church. Richardson said, That the proceed are not contrary to the Statute, but stood with the Statute. And it was said by Yeluerton, It seems there aught to be a Declaration in the Ecclesiastical Court: But the difference is, where it is Officium Judicis, or Ad instantiam paris, they will give Costs, which ought not to be. Hutton and Richardson, If the party will not prosecute it, none will take notice of it, and they proceed to give Costs, than a Prohibition may be granted. And if he be a Minister, he ought to be suspended for an offence against the Statute. And it ought to be first declared, and so to Excommunication; and that cannot be pleaded, if it be not under Seal. Dyer 275. And after all these were agreed by the Court, and no Prohibition was granted 
h Viner against Eton. Hetley: Rep. .  
(15. B. was sued in the Ecclesiastical Court in a cause of Defamation in another diocese than that wherein he lived, and being Cited, was for Non-appearance Excommunicated, and upon Significavit the Writ de Excommunicato Capiendo was awarded. Sergeant Finch, Recorder, prayed a Supersedeas for two Reasons. (1.) Upon the Statute of 23 H. 8. because he was Sued out of the diocese; to which the Court (viz. Jones and Whitlock) answered, That at the Common Law a Bishop cannot Cite a man out of his diocese. And that the Statute of 23 H. 8. inflicts a punishment, etc. and Whitlock said, That a Bishop hath not power of Jurisdiction out of his diocese, but to Absolve him being Excommunicate. (2) Upon the Statute of 5 Eliz. cap. 23. because the Case of Defamation is not within the Statute, and then the Statute Enacts, That it shall be void. To which the Court answered, That he ought to aver that by way of Plea, and so also said the Clerks of the Court, That he ought to have Sued a Habeas Corpus, and upon Return thereof to Plead. But the Plea was admitted de bene esse, and the party bailed 
i Bro● no Case. Latch. Rep. .  
(16.) No Letters of Excommunication are to be received in stay of Actions, if they are not under the Seal of the Ordinary 
k 20 H. 6. 1. , for an Excommunication under the Seal of the Commissary is not to be allowed in such case 
l Ibid. adjudged. . If the principal cause of the Action, for which the Excommunication was, be not comprised within the Letter of the Certificate, it is not to be allowed; that so it may appear to the Court, that the Ecclesiastical Court had Jurisdiction of the Cause for which he was Excommunicated 
m 14 H. 4. 14. b. . The Certificate ought to be Vniversis Ecclesiae Filiis, or to the Justices of the Court where the Suit is to be stayed 
n 20 H. 6. 25. . Also the Excommunication certified aught to be duly dated, that is, the Certificate ought to contain the day of the Excommunication 
o 20 H. 6. 25. . A Certificate by the Archdeacon is sufficient by the custom 
p Contra 8 H. 6. 13. ; And upon an Excommunicato Capiendo, if it appears that the Excommunication was by an Archdeacon of some certain place, it ought also to appear either expressly or by implication in the Certificate, that the matter for which the Excommunication was, was within his Jurisdiction, otherwise it is not good 
q 14 Ja. Starling, Cas. Rol. Abr. ver. Excommunication. .  
(17. F. being apprehended upon an Excommunicato Capiendo, and the Significavit being, That he was Excommunicated for not answering Articles, and not showing what they were, his discharge was prayed for the Incertainty thereof, 
Excom. Cap. Incertainty.  and per Curiam it is not good, and therefore was Bailed: Coke 22 E. 4. is, That a man was Excommunicated for certain Causes, 
Hill. 12 Jac. B. R. Fox his Case. Rol. Rep.  not good; and so Co. 5. Arscots' Case Schismaticus inveteratus is not good Excommunication, nor shall be allowed in the cause of him who Excommunicates him, 5 E. 3. quod fuit concessum per Doderidge.  
(18.) In Trollops Case it was Resolved, That the Official cannot certify Excommunication, for none shall do that, but he to whom the Court may write to assoil the party, 
Co. 8. Trelleps Case. 6 Jac.  as the Bishop and Chancellor of C. or O. and for that if a Bishop certify and die before the Return of the Writ, it shall not be received, but the Successor shall do it; and one Bishop shall not certify an Excommunication made by a Bishop in another Court, but a Bishop after Election before Consecration may, and so may the Vicar-General, if it appears that the Bishop is in Remotis agendis; also that the Suit and the Cause are to be expressed in the Certificate, that the Temporal Court may judge of the sufficiency, and if it be insufficient (as if a Bishop certify an Excommunication made by himself in his own Cause) the Court may write to absolve him.  
(19 H. was condemned in the chancellor's Court of Oxford, in Costs, and had not paid; an Excommunicato Capiendo being awarded upon a Significavit, 
Trin. 6 Car. B. R. Hugh, Case. Cro. par. 3.  returned and delivered here in Court, according to the Statute of 5 Eliz. cap. 23. He was Arrested thereupon. Resolved, The Excommunication was good, though the Significavit doth not mention any of these Causes in the Statute, but it is for other Causes; but if any Capias with Proclamations, and Penalties be therein awarded, the Penalties be void unless the Significavit express it to be for one of the Causes mentioned ●n the Statute.  
(20.) In another Case, where a man was Excommunicated upon a Sentence in the Delegates for Costs in Castigatione Morum, 
Trin. 6 Car. B. R. The King and rodmans' Cas. Cro. par. 3.  21 Jac. a Capias with Proclamations issued; and he being taken, Quoad the Excommunicato Capiendo pleads, That the Offence and Contempt was pardoned by the General Pardon of 21 Jac. It was Agreed, That the Pardon did not discharge the Costs of the party, which were taxed before the Pardon: It was moved there, That as the Costs were not taken away, so no more was the Excommunication, which is the means to enforce them to be paid. But Resolved, That this Excommunication before the Pardon, is but for a Contempt to the Court, and all Contempts in all Courts are discharged by the Pardon; wherefore the same was discharged; and for the payment of the Costs, the party is to have new Process.  
(21.) A man was taken upon an Excommunicato Capiendo; 
〈◊〉 C. Mores Rep.  and the Significavit did not mention, That he was Commorant within the diocese of the Bishop at the time of the Excommunication, and for that cause the party was discharged. And in an Action where an Excommunication was pleaded in Bar, 
L. 〈◊〉 and Edward's Case. More. ibid.  and the Certificate of the Bishop of Landaph shown of it, but did not mention by what Bishop the party was Excommunicated, it was for that reason adjudged void.  
(22.) Upon a Contract Sentence in the Ecclesiastical Court was, That the Defendant should marry the Plaintiff, 
〈…〉 Case. Moor's Rep.  he did not do it, for which cause he was Excommunicated. The Defendant appealed to the Delegates, by whom the Cause was remitted to the Judge à Quo, who Sentenced him again, where he was also Excommunicated again for non-performance of the Sentence: He appealed to the Court of Audience, and then had 〈◊〉. He was taken by a Capias Excom. upon the first Excommunication, upon a Habeas Corpus it was Resolved, That the Absolution for the latter had not purged the First Excommunication, quia Ecclesia decepta fuit. (2) That the Appeal did not suspend the Excommunication, although it might suspend the Sentence.  
(23.) In Weston and Ridges Case it was Resolved, That upon an Information exhibited in the Ecclesiastical Court, 
More's ibid.  for laying of violent hands upon a Clerk, and Costs there given against the Defendant, for which he was Excommunicated for not paying them; a Prohibition should issue forth, because it was not at the Suit of the party, and Costs are not grantable there upon an Information.  
(24). In the Case of Prohibitions it was Resolved, Mich. 8 Jac. That if a man be Excommunicated by the Ordinary, 
Mich. 8 Jac. Co. lib. 12.  where he ought not, as after a General Pardon, etc. And the Defendant being negligent, doth not sue a Prohibition, but remains Excommunicate by Forty days, and upon Certificate in Chancery is taken by the King's Writ de Excommunicato Capiendo, no Prohibition lies in this Case, because he is taken by the King's Writ. Then it was moved, what Remedy the party hath who is wrongfully Excommunicated: to which it was Answered, he hath Three Remedies; viz. (1) He may have a Writ out of Chancery to Absolve him, 14 H. 4. fol. 14. And with this agrees 7 Ed. 4. 14. (2) When he is Excommunicated against the Law of this Realm, so that he cannot have a Writ de Cautione admittenda, than he ought Parere mandatis Ecclesiae in forma Juris, i. e. Ecclesiastici, where in truth it's Excommunicatio contra Jus & formam Juris, i. e. Communis Juris: But if he show his Cause to the Bishop, and request him to assoil him, either because he was Excommunicate after the Offence pardoned, or that the Cause did not appear in Ecclesiastical Cognizance, and he refuse, he may have (as the Lord Coke says) an Action sur le Case against the Ordinary; and with this agrees Dr. & Stu. lib. 2. cap. 32. fo. 119. (3) If the party be Excommunicated for none of the Causes mentioned in the Act of 5 Eliz. cap. 23. then he may plead this in the King's Bench, and so avoid the Penalties in the Act. Note, It was Resolved by the Court, etc. That where one is Cited before the Dean of the Arches (in cause of Defamation, for calling the Plaintiff Whore) out of the diocese of London, against the Statute of 23 H. 8. and the Plaintiff hath Sentence, and the Defendant is Excommunicated, and so continues Forty days; and upon Certificate into Chancery, a Writ of Excommunicato Capiendo is granted, and the Defendant taken and Imprisoned thereby, That he shall not have a Prohibition upon the Statute of 23 H. 8. for no Writ in the Register extends to it; but there is a Writ there called De Cautione admittenda de parendo Mandatis Ecclesiae, 
Co. ibid.  when the Defendant is taken by the King's Writ De Excommunicato Capiendo, and to assoil and deliver the Defendant.  
(25.) Where the Court of B. R. was moved for the Bailing of one, who was taken by force of a Capias de Excommunicato Capiendo, upon the Statute of 5 Eliz. cap. 23. and came to the bar by a Habeas Corpus. William's Justice, He that is taken by force of a Capis de Excommunicato Capiendo, is not Bailable upon the Statute of 5 Eliz. cap. 23. which Statute doth only dispense with the Forfeiture of the Ten pounds, and such a person is not Bailable; and as to the other matter, the same remains as it was before at the Common Law, and the Statute of 5 Eliz. dispenseth only with the penalty of Ten pounds. Yeluerton Justice of a contrary Opinion, and that in this case he is Bailable. Fleming Chief Justice, This is a Case which doth deserve very good consideration, and that therefore he would consider well of it, and also of the Statute of 5 Eliz. before he would deliver his Opinion. William's Justice, clearly he is not Bailable in this Case. Afterwards at another time, it was moved again unto the Court to have him Bailed. Yeluerton Justice, That he is Bailable, and so was it Resolved in one Keyser's Case, where he was taken by a Writ De Excommunicato Capiendo, brought hither by a Habeas Corpus, and upon Cause shown he was Bailed by the Court, de die in diem, but neither the Sheriff nor any Justice of Peace in the country can Bail such a one, but this Court here may well Bail, as in the Case before, de die in diem. It was further alleged here in this, That in the Ecclesiastical Court they would not there discharge such a one, being taken and Imprisoned by force of such a Writ, De Excommunicato Capiendo, without a great Sum of Money there given, and a Bond entered into for the same; otherwise no discharge there. Yeluerton Justice and the whole Court, The Bishop ought not to 〈◊〉 such a Bond for the performance of their submission. The Rule of the Court here in this was, That upon their submission they shall be Absolved, without any such Bond entered into. Fleming Chief Justice, They shall Absolve them, and if they perform not according to their promise and undertaking, they 〈…〉 again by the Writ De Corpore Excommunicato Capiendo; but the Bishop is to take no Bond of them for their Absolution, to perform their Submission; the taking of such Bond by them being against the Law: And as to the Bailment, all the Judges (except Williams Justice) did agree that he was Bailable, and so by the Order and Rule of the Court he was Bailed. vid. Bulstr. Rep. par. 1. fo. 122. Pasch. 9 Jac. in Case of Hall vers. King.   

CHAP. XLIII.  
Of the Statutes of Articuli Cleri, and circumspect agatis.  

1. Several Statute-Laws relating to Ecclesiastical persons and things, enacted under the Title of Articuli Cleri, in the Ninth year of King Ed. 2.  
2. Some other Statute-Laws touching Ecclesiastical matters, made the Fourteenth year of King Ed. 3.  
3. The Ratification and Confirmation of the 39 Articles of Religion: The Subscription required of the Clergy.  
4. Certain Cases wherein a Prohibition doth not lie to the Ecclesiastical Courts, according to the Statute of Circumspect agatis, made the Thirteenth of King Ed. 1. And in what case a Consultation shall be granted.   
(1.) THese are certain Statutes made in the time of King Ed. 1. and Ed. 2. touching Persons and Causes Spiritual and Ecclesiastical 
a An. 9 Ed. 2. An. 14 Ed. 3. c. 3. . By the latter of these it is Enacted, (1) That upon demand of Tithes, Oblations, etc. under that Name, a Prohibition shall not lie, unless the demand be of money upon the Sale thereof 
b 2 H. 5. fo. 10. 8 Edw. 4. 13 Fitz. Prohib. 18, 20, 27.  (2) That upon debate of Tithes amounting to a Fourth part of the whole, and arising from the Right of Patronage, as also upon demand of a Pecuniary penance, a Prohibition may lie: Not so, in case of demand of money voluntarily accorded unto by way of Redemption of Corporal penance enjoined 
c 31 H. 6. fo. 13. 28 H. 6. fo. 2●. 12 E. 4. 13. Regist. fo. 45, 50. V N. B. fo. 32. F. N. B. fo. 30. 42. Regist. fo. 35. Coke pl. fo. 465 . (3) That upon demand of money Compounded for in lieu of Corporal penance enjoined for the Excommunication, for laying violent hands on a Clerk, a Prohibition shall not lie 
d Regist. fo. 31 5●, 57 F. N. B. fo. 52, 53. A. Rest. pl. f. 483. . (4) That notwithstanding any Prohibition, the Ecclesiastical Jurisdiction may take cognizance and correct in Cases of Defamation, and the money paid for redeeming the Corporal penance thereon enjoined may receive, notwithstanding a Prohibition be showed 
e Regist. fo. 45, 49. F. N. B. fo. 52. ●, 53. ●, Ra●●. pl. fo. 487, etc. Co. lib. 4. fo. 20. Bro. asur Case, 15.  (5) That no Prohibition shall lie, where Tithe is demanded of a Mill newly erected. (6) That in cases of a mixed cognizance (as in the Case aforesaid, of laying violent hands on a Clerk, whereby the King's Peace is broken, and such like) the Temporal Court may discuss the same matter, notwithstanding judgement given by the Spiritual Court in the case 
f Rast. pl. 488. Coke lib. 4. fo. 16 20. . (7) That the King's Letters may not issue to Ordinaries for the discharge of persons Excommunicate, save only in such Cases as wherein the King's Liberty is prejudiced by such Excommunication 
g 5 Eliz. 23. Regist. 65. V ●. B fo. 33, 35. F. N. B. fo. 〈◊〉, etc. 5 Ed. 3. fo. 8. Co. lib. 8. fo. 68 . (8) That Clerks in the King's Service, if they offend, shall be correct by their Ordinaries, but Clerks, during such time as they are in his Service, shall not be obliged to Residence at their Benefices 
h Regist. fo. 58. . (9) That Distresses shall not be taken in the Ancient Fees wherewith Churches have been endowed; otherwise, in possessions of the Church newly purchased by Ecclesiastical persons 
i Regist. fo. 98. 183. F. N. B. fo. 173, 174. a. St. 52 H. 3. 15. . (10) That such as Abjure the Realm, shall be in peace so long as they be in the Church, or in the King's highway 
k Note, This was Repealed by 1 Jac. 25. & 21 Jac. 28. . (11) That Religious Houses shall not by compulsion be charged with Pensions, resort, or Purveyors 
l Rast. pl. 373. St. 3 Ed. 1. 1. . (12) That a Clerk Excommunicate, may be taken by the Kings Writ out of the Parish where he dwells. (13) That the examination of the Ability of a Parson presented unto a Benefice of the the Church, shall belong unto a Spiritual Judge 
m Regist. fo. 53. F. N. B. fo. 35. i. Rast. pl. 497. Coke lib. 5. fo. 57 Dyer fo. 273. . (14) That the Elections to the Dignities of the Church shall be free without fear of any Temporal power 
n St. 3 Ed. 1. 5. . (15) That a Clerk flying into the Church for Felony, shall not be compelled to abjure the Realm 
o Note, This is also Repealed by the Statute of 1 Jac. 25. & 21 Jac. 28. . (16) And last, That the privilege of the Church being demanded in due form by the Ordinary, shall not be denied unto the Appealor, as to a Clerk confessing Felony before a Temporal Judge.  
(2.) In conformity to the premises there were other Statutes after made in the time of King Ed. 
14 Ed. 3.  3. whereby it was Enacted (1) That the goods of Spiritual persons should not, without their own consents, be taken by Purveyors for the King. (2) That the King shall not collate or present to any vacant Church, Prebend, chapel, or other Benefice, in another's Right, but within Three years' next after the Avoidance 
p Note, This is Repealed by the Stat. 25 Ed. 3. 2. . (3) That the Temporalties of Archbishops, Bishops, etc. shall not be seized into the King's hands without a just cause and according to Law 
q St. 25 Ed. 8. 6. Regist. fo. 32. S. 1. Ed. 3. 2. 2. Sess. . (4) That no waste shall be committed on the Temporalties of Bishops during Vacancies, and that the Dean and Chapter may (if they please) take them to Farm 
r F. N. B. fo. 59 b. . (5) And last, That the Lord Chancellor or Lord Treasurer may during such vacancies, demise the Temporalties of bishoprics to the Dean and Chapter for the King's use.  
(3.) And as there are Articuli Cleri, so there are also Articuli Religionis, being in all thirty nine; Agreed upon at a Convocation of the Church of England Ann. 
An. 1562. St. 13. Eliz. c. 12. Where the Penalty for maintaining of Doctrine against the Articles, is Deprivation.  1562. Ratified by Q. Elizabeth under the Great Seal of England, Confirmed and Established by an Act of Parliament, with his majesty's Royal Declaration prefixed thereunto. Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles; the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James. The said Subscription refers to three Articles. (1.) That the King's majesty under God is the only supreme governor of the Realm, and of all other his Highness Dominions and countries, etc. (2.) That the Book of Common Prayer, and of Ordaining of Bishops, priests, and Deacons, containeth nothing in it contrary to the Word of God, etc. (3.) That he alloweth of the said thirty nine Articles of Religion, and acknowledgeth them to be agreeable to the Word of God. By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto, but the Delinquent against the Canon of King James, is to be prosecuted and proceeded against by the Censures of the Church 
s Vid. Dyer. 23. Eliz. 377. & l. 6. f. 69. in Green's case ; And it is not sufficient, that one subscribe to the Thirty Nine Articles of Religion, with this Addition (so far forth as the same are agreeable to the Word of God.) For it hath been resolved by Wray, chief Justice, and by all the Judges of England, That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute: But this is no other than Conditional 
t Per Wray. B. R. Pasch. 23. Eliz. Smith's Case. Vid. Co. Inst. p. 4. c. 74. verb. Subscriptions. .  
(4.) The Circumspect agatis is the Title of a Statute made in the 13 th'. year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges, wherein the King's Prohibition doth not lie 
v Co. l. 7. f. 44. & l. 5. f. 67. & Inst. par. 2. f. 487. . As in Case the churchyard be left unclosed, or the Church itself uncovered, the Ordinary may take Cognizance thereof, and by that Statute no Prohibition lies in the Case. Nor in case a Parson demands his Oblations, or the due and accustomed tithes of his Parishioners; nor if one Parson sue another for tithes great or small, so as the fourth part of the Benefice be not demanded; nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid; nor if the Prelate of a Church, or a Patron demand of a Parson a Pension due to him; nor in the Case of laying violent hands on a Clerk; nor in Cases of Defamation where Money is not demanded; nor in Case of Perjury. In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute, notwithstanding the King's Prohibition. So that the end of that Statute is, to acquaint us with certain Cases wherein a Prohibition doth not lie. And the Statute of 24 Ed. 1. shows in what Case a Consultation is to be granted 
w Reg. f. 44. F. N. B. f. 50. c. 53. h. v N. B. f. 32. Rast. pla. 483. 12 H. 7. f. 22. 2 H. 4. f. 9 Fitz. Consultat. 1, 2, 4. 5. . And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duly granted; provided that the matter of the Libel be not enlarged, or otherwise changed 
x Reg. f. 45. V N. B. f. 33. F. N. B. f. 45. A. .   

CHAP. XLIV.  
Of several Writs at the Common Law pertinent to this Subject.  

1. What the Writ of Darrein Presentment imports, in what case it lies, and how it differs from a Quare Impedit.  
2. Assize de utrum, what, and why so called.  
3. Quare Impedit, what for; and against whom it lies  
4. What a Ne admittas imports, the use and end thereof.  
5. In what case the Writ [Vi Laica removenda] lies.  
6. What the Writ Indicavit imports, and the use thereof.  
7. What the Writ Advocatione Decimarum signifies.  
8. Admittendo Clerico, what; and in what Case issuable.  
9 The Writ [Beneficio primo Ecclesiastico habendo] what.  
10. That Writ [Cautione Admittenda,] and the effect thereof.  
11. The writ of [Clerico infra Sacros ordines constituto, non eligendo in Officium,] What the use or end thereof,  
12. The Writ [Clerico capto per Statutum Mercatorum] what.  
13. What the Writ of [Clerico convicto commisso Goalae in defectu Ordinarii deliberando] was.  
14. What the Writ of [Annua Pensione] was anciently.  
15. The Writ of [Vicario deliberando occasione cujusdam Recognitionis] what.  
16. Three Writs relating to Persons excommunicated.  
17. Assize of Darrein Presentment brought after a Quare Impedit in the same cause, abates.  
18. Difference of Pleas by an Incumbent, in respect of his being in by the Presentment of a stranger, and in respect of his being in by the Presentment of the Plaintiff himself.  
19 Notwithstanding a recovery upon a Quare Impedit, the Incumbent continues Incumbent de facto, until Presentation by the Recoverer.  
20. Of what thing a Q. Imp. lies, and who shall have it.  
21. Who may have a Quare Impedit, and of what things.  
22. How, and for whom the Writ of Right of Advowson lies.  
23. What the Writ de jure patronatus, and how the Law proceeds thereon.  
24. The Writ of Spoliation, what, and where it lies.  
25. The Writ Vi Laica removenda further explained.  
26. The Writ Quod clerici non eligantur in Officium.   
(1.) AGainst the unlawful Possessor, who is the Usurper, liveth Three Writs, viz. One of the Right, as the Writ of Right of Advowson; and the other two, of the Possession, viz. A Quare Impedit, and Darrein Presentment. This Assize of Darrein Presentment or Assisa ultimae Praesentationis, is a Writ, which lieth where a man or his Ancestor hath presented a Clerk to a Church, and after (the Church becoming void by his death or otherwise) a stranger presents his Clerk to the same Church, in disturbance of him who had last presented. This Writ is otherwise also used 
a Vid. Bract. l. 4. tract. 2. Reg. Orig. f. 30. & F. N. B. f. 193. ; and differs from that of a Quare Impedit; for the Quare Impedit lies upon the disturbance of one who hath the Advowson in his Presentation, when the Church is void: The other lies, where a man or his Ancestors had presented before, and now (the Church becoming void again) a stranger presents in disturbance of him who had last presented. Where ever a man may have Assize of Darrein Presentment, he may have a Quare Impedit, but not e contra 
b Terms of Law verb. Quare Imp. . He that hath right to present after the death of the Parson, and bringeth no Quare Impedit nor Darrein Presentment, but suffereth a stranger to usurp upon him, yet he shall have a Writ of Right of Advowson; but this Writ lieth not, unless he claim to have the Advowson to him and his heirs in Fee Simple 
c ibid. . Where the Ordinary, Metropolitan, or King presents for Lapse, any of these Collatives will serve the Patron for a possession in his Assize of Darrein Presentment 
d 5 H. 7. 43. F. N. B. 31. F. Mich. 12. Jac. rot. 2642. Colt and Glover vers. Bishop of Coventry and Lichfield. Hob. Rep. , which Assize of Darrein Presentment may not be purchased, pending a Quare Impedit, for the same avoidance; and therefore in the Case, where William St. Andrew's brought a Writ of Assize of Darrein Presentment against the Archbishop of York, Mary Countess of Shrewsbury, and one Hacker; and the Bishop making default, the Countess and Hacker pleaded in Abatement, that the Plaintiff before the Writ purchased, brought a Quare Impedit against the same Defendants, and shows all certain, which remains undetermined, and averrs that they are both of the same avoidance: And upon Demurrer the Writ was abated by judgement 
e Mich. 15. Jac. rot. 32. C. B. William St. Andrew's vers. Archbishop of York & alios. Hob. Rep. .  
(2.) Assize de utrum or Assisa utrum, is a writ which lieth for a Parson against a Layman, or for a Layman against a Parson, for Land and Tenements doubtful, whether it be Lay-Fee or Free alms 
f Vid. Bract. l 4. Tract. 5. r. 1. & seq. Britton. c. 95. . These Writs are called Assizes, probably either because they settle the possession; and so an outward Right in him that obtains by them; or because they were originally executed at a certain time and place formerly appointed; or because they are tried most commonly by especial Courts set and appointed for that purpose. The Incumbent, as touching his Right for his Rectory; hath the only Writ of Juris utrum, and for his possession any other possessory Action.  
(3.) Quare Impedit is a Writ which lieth for him, who hath purchased an Advowson in Gross, or a manor with an Advowson thereunto appendent, and against him, who (when a Parson Incumbent dieth, or a Church otherwise becomes void) disturbeth the other in the Right of his Advowson, by presenting a Clerk thereunto being void. Vhis' Writ is distinguished from the former of Darrein Presentment or Assisa ultimae Praesentationis, because this latter lieth (as aforesaid) only where a man or his Ancestors formerly presented, but the Quare Impedit lies properly for him, who himself was the Purchaser of the Advowson; though he that may have Assize of Darrein Presentment, may have the other if he please, but not so Vice versa, as was also before observed. Yet it is said in Reg. Orig. f. 30. That a Quare Impedit is of a higher Nature, than an Assize of Darrein Presentment, because it supposeth both a Possession and a Right 
g Old N. B. f. 27. Bract. l. 4. Tract. 2. c. 6. Brit. c. 92. F. N. B. f. 32. Reg. Orig. f. 30. & Westm. 8. c. 5. . Which Quare Impedit the Executors of a Testator may (as well as himself might) have upon a disturbance made to the Presentment; and so was the Opinion of the whole Court in Smallwoods' Case awainst the Bishop of Coventry and Lichfield, that the Executors may have a Quare Impedit upon a disturbance made to the Presentation 
h Trin. 31. El. C. B. Smalwood, Case. Leon. Rep. , which Writ lieth also of a chapel, Prebend, etc. 
i St. W. 2. & in dict. C. . And in case after the death of the Ancestor of him that presented his Clerk unto a Church, the same Advowson be be assigned in Dower to any Woman, or to Tenant by the courtesy, which do present, and after the death of such Tenants, the very Heir is disturbed to present when the Church is void, it is in his election whether he will sue the Writ of Quare Impedit or of Darrein Presentmet; the which, it seems, is also to be observed in Advowsons' Demised for term of life, or years, or in Fee Tail 
k St. 13. Ed. 1. c. 5. & Fitz. Dar. Pres. . And damages shall be awared in both these Writs, that is, if the time of Six Months pass by the disturbance of any so that the Bishop doth thereby Collate to the Church, and the very Patron lose his Presentation for that turn, damages shall be awarded for two years' value of the Church: And if the Six Months be not elapsed, but the Presentment bederaigned within that time, than damages shall be awarded to the half years value of the Church: And if the disturber hath not wherewith to satisfy the Damages, where the Bishop Collateth by lapse of time, he shall suffer two years' Impisonment; and half years' imprisonment, where the Advowson is deraigned within the half year 
l Stat. ib. Fitz. damage. 49. 17. 29 38. 93. 106. Fitz. Q. Imp. 34. 45. Dy. f. 135. 236. 241. kel. f. 57 Fitz. En. 43. Co. l. 6. f. 48. l. 9 f. 26. In Broke-byes Case 31 El. it was resolved, that an Executor shall have a Q. Imp for a disturbance made in vita Testatris, if the Avoidance be a chattel rested. . Likewise, he that recovers a manor, whereunto an Advowson is appentlant, being disturbed to present when the Church is void, shall have a Quare Impedit 
m St. 7 H. 8. 4. . In which, as also in assize of Darrein Presentment, plenarty of the Defendants or Disturbers party is no plea 
n Sr. 13. Ed. l. c. 5. ; but two Quare Impedits of one Church, and for one avoidance a man cannot have 
o Pasch. 15. Jac. E. of Bedford vers. the Bishop of Exiter. . In the Case between the King and the Bishop of Norwich and Saker and coal it was resolved, that when one is admitted, instituted and inducted, by the presentation of a common person, though it was upon an usurpation upon the King, yet the King cannot remove the Incumbent without a Q. Impedit brought, for the Church is full of him till he be removed— Cro. par. 2.  
(4.) Ne admittas, is a Writ that lieth for the Plaintiff in a Quare Impedit, or him that hath an Action of Darrein Presentment, depending in the Common Pleas, and feareth that the Bishop will admit the Clerk of the Defendant during the dependency of the Suit betwixt them. This Writ must be sued within six months' next after the Avoidance, because after the six months the Bishop may present by the lapse. Therefore if the Patron of a Church vacant, having or not having any controversy depending with another touching the right of Presentation, doubteth that before he makes his Presentation, the Bishop may collate a Clerk of his own, or admit a Clerk presented by another to the same Benefice unto which he hath such right of presentation, he may at his own Suit have this Writ of Ne admittas directed to the Bishop forbidding him to collate or admit any to that Church during the time aforesaid 
p Reg. Orig. fo. 31. F. N. B. fo. 37. .  
(5.) Vi Laica Removenda, is a Writ which (upon the Bishop's Certificate into Chancery of a force and resistance touching a Church) lieth where a Debate or controversy is between two Parsons for a Church, the one whereof doth enter into the Church with a strong hand and great power of the Laity, holding the other out, and keeping possession thereof vi & armis; whereupon he that is so held out of possession may have the said Writ directed to the Sheriff of the County, to remove the force within that Church, and (if need be) to raise the Posse Comitatus to his assistance, and to Arrest and Imprison the persons that make resistance, so as to have their Bodies before the King at a certain day to answer the contempt: which Writ is ever made returnable, and is sometimes grantable without the Bishop's Certificate, as aforesaid, for it may, it seems, be had upon a surmise made thereof by the Incumbent himself without such Certificate; there being a distinct and several form thereof in each of the said Cases 
q F. N. B. fo. 54. Reg. Orig. fo. 59, 60. . So that this Writ properly lieth for the removal of any forcible possession of a Church kept by laymen.  
6. Indicavit is a Writ in the nature of a Prohibition, issuing out of the King's Temporal to his Ecclesiastical Courts, and lieth for the Patron of a Church, whose Clerk is Defendant in some Spiritual Court in an Action of Tithes commenced against him by another Clerk, and extending to the value of the fourth part of the Church, or of the Tithes belonging thereunto; for in this Case the cognizance thereof belongs to the King's Temporal Courts by the Stat. of Westm. 2. c. 5. wherefore, the Defendants Patron being like to be prejudiced thereby in his Church and Advowson, in case the Plaintiff should prevail and obtain in the Spiritual Court 
r Reg. Orig. foe 35. b vid. Old. N. B. fo. 31. and the Reg. fo. 35. and Brit. c. 109. tit. a. . So that this Writ lieth properly where there is a contest or controversy between two Clerks in an Ecclesiastical Court, of a Church or part thereof for dimes or Tithes amounting at the least to the value of the fourth part of the Church; In which regard the Patron of the Clerk Defendant, losing his Advowson in case the Plaintiff should recover in the Spiritual Court, shall have this Writ directed to the Clerk Plaintiff, or to the Officers of the Ecclesiastical Court, commanding them to cease their proceed, until it be discussed and decided in the Temporal Court, to whom the cognizance of the Advowson belongs; This Writ shall be between four persons, whereof two are Patrons, and two are Clerks; and is not returnable as other Writs; but if they cease not their Suit and proceed in the Ecclesiastical Court, an Attachment issues. 
s Terms Law. verb. Indicavit. .  
(7.) Advocatione Decimarum is a Writ, that lieth for the claim of the fourth part or upwards of the Tithes that do belong to any Church 
t Reg. Orig. fo. 29. b. .  
(8. 
Upon a Ne admittas tried and found for, etc. ) Admittendo Clerico is a Writ granted to him, who hath recovered his right of presentation against the Bishop in the Common Pleas 
u Reg. O. rig. fo. 33. a. F. N. B. fo. 38. .  
(9) Beneficio Primo Ecclesiastico habendo is a Writ directed from the King to the Lord Chancellor, to bestow the Benefice that shall first fall in the King's gift, above or under such a value, upon this or that person 
w Reg. of Writs fo. 307 b. .  
(10.) Cautione admittenda is a Writ that doth lie against a Bishop, who holdeth and detaineth an Excommunicate Person in Prison, notwithwanding he offers sufficient Caution or Assurance to observe and obey the Orders and Commandments of Holy Church from thenceforth. The form and further effect of which Writ vid. Reg. 
x Reg. of Writ. p. 66. F. N. B. f. 65. & F. N B 63. Vid. Roll. Abr. f. 234. .  
(11.) Clerico infra sacros ordines constituto, non eligendo in officium, is a Writ directed to the bailiffs, etc. that have imposed a Bailywick or Beadleship upon one in Holy Orders, charging him to release him thereof 
y ib. f. 143. a. .  
(12.) Clerico capto per Statutum Mercatorum, etc. is the delivery of a Clerk out of Prison, who is imprisoned upon the Breach of the Statute Merchant 
z ib. f. 147. .  
(13.) Clerico convicto commisso Goalae in defectu Ordinarii deliberando, is a Writ for the delivery of a Clerk to his Ordinary that was formerly convict of Felony, by reason his Ordinary did not challenge him according to the privileges of Clerks 
a ib. f. 69. a. .  
(14.) Annua Pensione is a Writ now grown obsolete and out of use: For whereas anciently there were certain abbeys and Priories, that in respect of their Foundation or Creation, were obliged unto an Annual Pension due unto the King for such his Chaplains unprovided of a sufficient Living, as he should nominate and appoint: This Writ in pursuance thereof was wont to issue to such Abbot or Prior, in favour of such whose name was comprised in the said Writ, until &c. requiring the said Abbot or Prior, that for his said Chaplains better assurance, he give his Letters Patents for the same 
b Reg. Or. f. 1 65, & ●7. & F. N. B. f. 231. .  
(15) Vicario deliberando occasione cujusdam Recognitionis etc. is a Writ that lieth for a Spiritual person imprisoned upon forfeiture of a Recognizance, without the King's Writ 
c Reg. O●ig. f. 147. . For as there is one Form of the Writ Statuto Mercatorio, for the imprisoning of him who hath forfeited his Bond called the Statute Merchant, until the Debt satisfied, as to Lay persons: So there is another Form of the said Writ, as against Ecclesiastical Persons 
d ib. f. 148. .  
(16.) Touching the three Writs, viz. De Excommunicato capiendo. Excommunicato deliberando. Excommunicato recipiendo vid. sup. in cap. de Excommunicatione.  
(16.) The Village of St. Andrews brought a Quare Impedit against the Archbishop of York and Countess of Strewsbury, 
Quare Imp. darrein Presentment.  and after brought an Assize of Darrein Presentment for the same Church. The Quare Impedit is returned. It was said by the Court that the Assize of Darrein etc. shall abate, vid. by Hobard. But if he had brought another Quare Impedit, it had been well. And so it was resolved in the Earl of Bedford's Case; and by Hutton, that the Statute of W. 2. cap. 5. proves it, viz. Quod habeant Ass. etc. vel Quare Imp. but not both vid. 8 E. 3. 17. 
e Mich. 15. Jac. C B. rot. 32. N y. Rep.   
(18.) 
In a Qua. Impedit the Plaintiff must allege a Presentation in himself, or in those under whom he claims; and so must the Defendant.— Sr. Jo. Tufton vers. Sir Ric. Temple. Vaugh. Rep.  In a Quare Impedit the Incumbent pleads, that before the Action brought he had been in by the space of six months, etc. of the presentment of S. S. in the Church. This difference was taken by sergeant Henden, and agreed by the Court: when the Incumbent pleads the presentment of a Stranger, there he ought to show, That the Stranger had a Title, and that he was seized of the Advowson, etc. or that he was seized of a manor to which, etc. But where he pleads that he was in for Six months of the Presentment of the Plaintiff himself, or by collation by lapse by the Ordinary, there he need not make any Title. 10. E. 11. 
f Lister against Crameel. Noy 's Rep. .  
(19) If a man recovers in a Quare Impedit against an Incumbent, the Incumbent is so removed by the Judgement, that the recoverer may present to the Church without other removal of the Incumbent, who yet continues Incumbent de facto until there be a Presentation made by the recoverer 
g M. 12. Jac. B. R. inter Whistler and Singleton. Resolved per Cur.— Rol. Abr. verb. Presentment. lit. Q. nu. 6. . And after such recovery in a Quare Impedit, a Stranger to the recovery cannot present to the Church, for notwithstanding the recovery, the Incumbent continues Incumbent de facto as to all Strangers to the recovery 
h M 13. Jac. B. R. inter Fairbank and Durrham. .  
(20.) A Quare Impedit lies of a Donative, and the Writ shall be Quod permittat ipsum presentare ad Ecclesiam, etc. and set forth the special matter in his Declaration 
i Co. Lit. 344. . And the Grantee of a next avoidance may have a Quare Impedit against the Patron who granted the same 
k 39 H. 6. qua. imp. 95. per Cur. .  
(21.) If the Husband, who hath an Advowson in right of his Wife, be disturbed in his presentation thereto, and dies, the Wife shall have a Quare Impedit on that disturbance 
l 3 E. 3. qua. ●mp. 57 3 H. 5. qua. imp. 71. admit.  Also a Chapter may have it against the Dean for their several possessions 
m 40. E. 3. 28. b. . It lies also of a free chapel which a man hath by Patent from the King, 
n 14 H. 4. 11. b.  if the Sheriff refuse to put him into possession thereof 
o 18 E. 3. 1. . A presentation by a Bishop as Patron, is sufficient for the King to maintain a Quare Impedit to the Church, when the Temporalties come into the King's hand by reason of vacancy of the bishopric 
p 50 E. 3. 26. .  
(22.) The Writ of Right of Advowson lieth properly for him, who claims to have the Advowson to him and his Heirs in Fee-simple 
q Term. Law. verb. Quare Impedit. . This Writ lies of an appropriation 
r 44 E. 3. 34. 14 H. 4. 14. b. . He that procures this Writ, aught to show a possession in himself or Ancestors 
s 21 E. 4. 1. 1 H. 4. 2. 21 E. 3. 27. b. . Admission and Institution of a Clerk without Induction, is not sufficient to maintain this Writ 
t 38. E. 3. 9 Com. Hares & Bickley, 528. .  
(23.) When a man presents his Clerk to the Bishop within the Six months, and also another presents his Clerk, in that case the Church is Litigious, and the Bishop may issue the Writ De jure Patronatus, to inquire to whom the right of Patronage belongs. This Writ may also issue out of Chancery to the Ordinary 
u 34 H. 6. 39 b. per Moyle. . And the Ordinary is to make Inquisition thereon 
w 34 H. 6. 11. b. per Pr●sot. . Some question is, at whose costs this Writ shall be sued, whether at the Bishops, or at the parties? It hath been said, that it shall be sued at the costs of the Ordinary; because it is for his own discharge and for his ease 
x 5 H. 7. 22. per B●tan. But Reble contra. & contra 34 H. 6. 11. b. per Danby. and 2 Drs. and 35 H. 6. 19 per Prisot. . But it seems otherwise, for that the Ordinary is not obliged to award a Commission to inquire De Jure Patronatus ex Officio, but at the desire of the parties 
y 8 E. 4. 24. b. per Curtam. 5 H. 7. 20. b. per Reble. and 22 H. 6. 30. per Mark. . For when the Church is litigious, he may suffer the lapse to incur without enquiry. 34 H. 6. 41. Curia. 35 H. 6. 18. b. and if he should be obliged to grant it ex Officio, than he should never have a lapse. 35 H. 6. 19 And by 34 H. 6. 38. It shall be at the costs of the parties, for that the Ordinary is Judge in that case 
z Rol. Abr. Ver. presentment. lit. P. pag. 384. . If there be but one only that doth present to the Ordinary; yet he may award a Jure Patronatus 
a 21 H. 6. 44. 34. H 6. 40. . But if two present, then there may be two Jure Patronatus 
b 21 H. 6. 44. : And if the Ordinary admit his Clerk, for whom the right is found upon the Writ, it will excuse the Ordinary, and he shall be no disturber, although the right in a Quare Impedit be afterwards found for the other party 
c 34 H. 6. 11. b. per Prisot. 34 H. 6. 38. . But if on the said Writ the right be found for one Petron, and afterwards the Ordinary admit the Clerk of the other Patron, that is at his peril, for he may (if he please) admit him, notwithstanding the Commission, and the finding for the other 
d 34 H. 6. 11. b. . For it seems it is but for the Ordinaries better information. But when the right on the said Writ is found for one Patron, and the Ordinary admits the Clerk of the other Patron: if it be afterwards found in a Quare Impedit, that the right belongs to that Patron for whom it was found in the Jure Patronatus, he will be a disturber 
e ibid. per Prisot. . It is some question, whether the Ordinary may suffer the lapse to incur, after it is found on the said Writ for one of the Patrons? It is supposed that he may not: For 35 H. 6. 19 per Prisot. he shall not have any lapse after it is found for one of them, for he is to admit his Clerk 
f 21 H. 6. 44. 45. Roll●ubi supra. . Yet after it is found for one of them, the Ordinary is not obliged to admit his Clerk without a new request made to him by the Clerk, but no need of the Patrons making any new request or presentation 
g 34 H. 6. 12. per curiam. .  
(24.) The Writ of Spoliation lies properly by one Incumbent against another Incumbent, where the right of the Patron comes not into debate 
h F. N. B. Spoliation. fo. 36. b. vid. Cas● Edes vers. the Bishop of Oxford. in Vaugh. Rep. . And therefore if a person be Created Bishop, and hath a dispensation to hold his Rectory, and after the Patron presents another Incumbent, who is instituted and inducted, the Bishop shall have against that Incumbent a Spoliation; which proves the Bishop to continue Incumbent after his Consecration, and to hold his Rectory by his former Presentation; and in ancient times it was held, that where the Pope doth Licence one, who is created a Bishop, to retain his former Benefice, and the Patron presents another, if in that Case the Elder Incumbent sues a Spoliation in the Spiritual Court, it well lies, for both claim by the same Patron 
i 38 H. 6. f. 19 Br. Spoliation pl. 4. . So that if one happen (during the Incumbents presentation) to be presented by the same Patron, or do come into the same Church, by course of Law, so that the Patronage comes not into Debate, a Spoliation lies.  
(25.) If any man shall hold or keep the possession of a Church by force, so that the Bishop or the Parson cannot do their office there, it shall be removed by the King's Writ, called Vi Laica removenda, as aforesaid: 
O. N. B. 33. b.  which Writ lies especially where the debate is between two Parsons touching the same Church, or Prebendaries, on the Title, and where the one keeps the other out by Force and Arms; but by this the Force only shall be removed, and not the Incumbent, who is in possession of the Church, whether he be in possession by right or wrong. 
F. N. B. 54.  And this Writ shall be granted on the bare Surmise of the Incumbent, or party grieved, without any Certificate made by the Bishop into Chancery, as upon such Certificate, & also by reason thereof; and there are two several forms of the Writ in these two Cases; which Writ is returnable or not, at the pleasure of the party who sues out the same; 
Finch. Nomotexnia. p. 138.  and may be returned into the Court of Common Pleas as well as into the King's Bench.  
S. was deprived by the high Commissioners for not conforming to the Canons of the Church; it was general, quia Refractarius; but no particular Canon mentioned: The King by reason of the said Deprivation, presented B. who was inducted, but S. would not yield up the possession of the Parsonage-house: whereupon the Writ of Vi Laica issued out of Chancery; the Sheriff came to the house, but could not apprehend the parties; B. finding the house empty, entered peaceably; S. made an Affidavit in B. R. that he was ousted by the Sheriff by force, and B. put in possession; the Court of B. R. thereupon granted a Writ of Restitution, he having an Appeal depending of the Deprivation: In this Case these points were resolved; (1) That the Writ De vi Laica removenda is not returnable unless the Sheriff find the Force. (2) That the King's Bench cannot award Restitution upon an Affidavit, but there ought to be a Return of the Writ of Vi Laica etc. in the Chancery, and upon Affidavit made there, that the Sheriff by virtue of the Writ hath removed one and put another in possession, Restitution is awardable. (3) Resolved, that upon a Deprivation by the High Commissioners no Appeal lieth, because the Commission is grounded upon the Prerogative of the King, in the Ecclesiastical government; and therefore the Commissioners being immediate from the King and possessing his person no Appeal lieth. (4) Resolved, That the Canons of the Church, 
Bird and smith's Case More 's Rep.  made by the Convocation and the King, without Parliament, shall bind in all matters Ecclesiastical, as well as an Act of Parliament: In the principal Case it was adjudged, that until the Deprivation was repealed, it stood good; and so B. had good Title to the Church.  
A Lease was made of a Rectory, a Parson was presented to it, and upon a supposition, that he was held out by Force, had a Vi Laica removenda, 
Roberts and Amond shams' Case. More 's Rep.  upon which the Sheriff returned Non inveni vim Laicam, nec potentiam armatam, notwithstanding which Return upon Affidavit, that he was kept out with Force, a Writ of Restitution was awarded out of the King's Bench. Yet in Zakars Case, Coke Chief Justice said, we are to judge upon a Record, and not upon Affidavits, in which Case he being deprived for Simony, Richardson Serjeant moved the Court to have him restored again, 
Mich. 13. Jac. B. R. the King's case against Zakar Bulst. par. 3.  because (as he urged it) he was unlawfully removed: The reason being, that in a Vi Laica removenda, whereby he was removed (which Writ by F. N. B. and the Register, comes to remove omnem vim Laicam) he shows that the Sheriff did dispossess him, and put another in, the which he ought not to do, and as Coke Chief Justice then said, that in so doing he had done against the Law, if he removes one and puts another in; and Richardson sergeant there cited Robinson's Case, Hill. 38. Eliz. where upon an Affidavit made that the Sheriff in a Vi Laica removenda, had removed one, and put another in, there this was debated, whether upon this shown to the Court the first man removed should be restored again or not; and there resolved by the whole Court, the second man to be displaced again, and the first to be restored; and Coke said, if a Justice of Peace remove a Force, he cannot put another into possession:  
(26.) There is a Writ in the Register, Quod Clerici non Eligantur in officium Ballivi etc. For all Ecclesiastical persons in office are allowed certain privileges by the Common Law in respect of their Function; they are exempt from all personal charges, which might any way hinder them in their calling; 
F. N. B. 175. b.  as to be Chosen to the Office of bailiff, Beadle, Reeve or the like in respect of their Lands; to which end the said Writ is provided, which doth recite that by the Common Law they ought not to be chosen to such offices aforesaid, and commands that in case any Distress be taken or Amercement levied on any of them on that account, that it shall be restored. So the Stat. of Marleb. cap. 10. That persons of Holy Church, and persons Religious, 
Finch. ubi sup. p. 135. Stamf. 133.  shall not be commpelled to come to the Sheriffs turn or Leet; and so also it is by the Common Law. In Favour also of Holy Church the Law did anciently allow them Two other privileges, viz. Clergy and Abjuration.  
In the Ninth year of the Reign of King James, a question was moved, whether after the Conviction of an heretic before the Ordinary, the Writ de Haeretico comburendo did at that day lie or not; as to the Resolution of which question the Judges were then divided in opinion, as appears in the Fortieth Chapter precedent, §. 7. 
Cap. 40. sect. 7. in fin. sect. pag. 564.  what was then controverted, is now decided by an Act of Parliament made in the 29 th'. year of his majesty's Reign, wherehy it is enacted, that the Writ commonly called Breve de Haeretico comburendo, with all process and proceed thereupon, in order to the executing such Writ, or following or depending thereupon, and all punishment by death, shall be from thenceforth utterly taken away and abolished.  
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FINIS.    

 

  

   

THE INDEX Referring to PAGE and PARAGRAPH.  

ABBY-Lands, how many ways privileged or discharg●● 〈◊〉 Tithes. p. 383. How the abbey of battle came to be dispens●● with from Visitation. p. 108. Sect. 8. When and by whom 〈◊〉 abbey of Westminster was founded. p. 328. Sect. 5.  
Abbot, whence that word is derived, and what it signifies. p. 326 327. Sect. 1. How many Abbots anciently in England. p. 327. Sect. 1. and 328. Sect. 5. They were reputed as Peers. p. 327. Sect. 2. Some were Elective, others Presentative. p. 328. Sect. 5. When and by whom made Elective. p. 331. Sect. 7. Three Abbots condemned at once for denying the King's Supremacy. p. 10. Sect. 14.  
Abeyance, what. p. 183. Sect. 9 and 189. Sect. 8. and 284. Sect. 3.  
Abjuration, The form thereof anciently. p. 141, 142. Sect. 8.  
Absence of the Husband from the Wife, what requisite to cause a Divorce. p. 494. Sect. 2.  
Abstinence or Fasting Days, the Original thereof in England. p. 130. Sect. 44.  
Acceptance of Rent, by a Bishop, whether it shall bind him. p. 38. Sect. ult. By a Parson, whether it confirms the Lease made by his Predecessor. p. 189. Sect. 8.  
Accessories determinable in that Court which hath cognizance of 〈◊〉 Principal. p. 114. Sect. 11. and p. 123. Sect. 25.  
Account, in what case an Executor shall not be compelled thereunto p. 116. Sect. 12.  
Acorns, Whether Tithable. p. 383.  
Action upon the Case, in what Case it may lie at Common Law for suing in the Ecclesiastical Court. p. 444.  
Administrator, how he may make his own Goods 〈…〉 Debts. p. 86. Sect. 11.  
Admission, what; and under what qualification 〈…〉 p. 272. Sect. 6. the form thereof. p. 272. Sect. 7.  
Admittendo Clerico, in what Cases that 〈…〉  
Adultery, where cognizable, and 〈…〉  
Advocatio Medietatis Ecclesiae, & Medietatis Advocationis Ecclesiae, the difference in Law between them. p. 206. Sect. 2.  
Advocatione decimarum, what that Writ imports. p. 647. Sect. 7.  
Advowe or avow, who properly such. p. 206. Sect. 2. and p. 213. Sect. 14.  
Advowson, what; and whence derived. p. 205. Sect. 1. Twofold. p. 206. The Original thereof. p. 207. Sect. 3: A Temporal non Spiritual Inheritance. p. 209. Sect. 6, 7. How Advowson in Gross differs from Appendent. p. 210. Sect. 8. Whether it may be extended. p. 182. Sect. 7. By what words in a Grant it may pass, or not. p. 211. Sect. 10. p. 214: Sect. 15, 16. Whether it may be Assets. p. 214. Sect. 15. Whether the Advowson of a Vicarage endowed, belongs to the Parson or the parson's Patron. p. 216. Sect. 21. Whether the Advowson of a Vicarage doth pass by the Grant of the Vicarage. p. 219. Sect. 24. Three Original Writs of Advowsons'. p. 216. Sect. 20.  
Aftermath, and Aftergrass, whether Tithable. p. 384.  
Age, at what age a Minor Executor may administer. p. 219. Sect. 16.  
Agistment what, and whether Titheable. p. 384, 385.  
Agreement between Parson and Parishioner touching Tithes. p. 373. Sect. 47. and p. 385, 386. Good for years without Deed, not so for Life p. 379. Sect. 69. and p. 386.  
Alcheron, how severely it doth punish Adultery. p. 471. Sect. 6.  
Aldermanus, anciently what? p. 96. Sect. 1.  
Aliens, whether presentable to a Church in England, p. 264. Sect. 26. and p. 272. Sect. 6.  
Alimony, what. p. 508. Sect. 13. where cognizable. p. 510. Sect. 16. 18, 19 In what Cases the Law allows Alimony or not. p. 509, 510. Sect. 14, 15. whether due to her that Elopes'. p. 508. Sect. 13.  
Alms, or things appointed for that end, whether Tithable. p. 386.  
Altarage, what. p. 339. Sect. 1. whether Tithe- Wool, or Tithe- Wood shall pass by the word Altaragium. p. 341. Sect. 3. p. 342. Sect. 4, 5.  
St. Andrews in Scotland, when and by whom the Bishop thereof was made Metropolitan of all Scotland. p. 18. Sect. 9  
Animalia Utilia & Inutilia; the difference between them in reference to Tithes. p. 360. Sect. 17. and p. 386.  
Annates, what; by and to whom payable. p. 335. Sect. 1. The Original thereof. p. 337. Sect. 2, 3. vid. First-fruits.  
Annua Pensione, what that Writ imports. p. 648. Sect. 14.  
Anselme Archbishop of Canterbury, the first that made Appeals to Rome. p. 97. Sect. 1. and p. 118. Sect. 13. The first Archbishop of Canterbury that was Legatus Natus. p. 98. Sect. 1.  
Apparitor, Action against such for false informing. p. 88 Sect. 14. vid. Summoner.  
Appeals to Rome, prohibited. p. 9 Sect. 14. p. 118. Sect. 13. They are made to the King in Chancery. p. ibid. Appeal out of Ireland to the Delegates in England, in what case. p. 407. vid. Delegates.  
Appellatione remota, the effect of that clause in Law. p. 117. Sect. 13.  
Apples, what Tithes they pay, whether small to the Vicar, or great to the Parson. p. 361. Sect. 21. p. 386. In what case they may not be Tithable. p. 371. Sect. 44.  
Appropriation, what. p. 223. Sect. 3. The original thereof. p. 221, 222. Sect. 1. Whether it may be made without the King's licence. ibid. and p. 198. Sect. 3. Whose Assents are requisite thereunto. p. 222. Sect. 1. How they are now changed in their use and end, from what they were originally. p. 223. Sect. 2. Whether they might formerly be granted to Nunneries. p. 223. Sect. 2. and p. 225. Sect. 5. They may not now (as to their Original) be called into question. p. 226. Sect. 6. How a Church Impropriate may become disappropriate. p. 229. Sect. 12.  
Arabians, their strange conceit of Adultery. p. 471. Sect. 6. The punishment thereof with them Capital. ibid.  
Arable Land, left Fallow and untilled every other year, whether Tithable that year. p. 394.  
Archbishop, whence so called; A description of that Dignity. p. 12. Sect. 1. What difference between Archbishop and Metropolitan. p. 15. Sect. 3. Three Archbishops in England and Wales anciently. p. ibid. Sect. 4. How that in Wales came to be lost, and when. p. 17. Sect. 6. None in Ireland until the year 1152. p. 20. Sect. 13. In what Cases an Archbishop may call Causes to his own Cognizance Nolente Ordinario. p. 19 Sect. 10. Whether he may Cite a man out of his own proper diocese. p. 100, etc. Sect. 3. The great Antiquity, Precedency, privileges, Style, and Precincts of the Archbishop of Canterbury. p. 13. Sect. 1. He is the first Peer in England, next to the Blood Royal. ibid. Anciently he had Primacy as well over all Ireland as England. p. 20. Sect. 13. He was anciently styled Patriarcha, & orbis Britannici Pontifex. ibid. He had some special marks of Royalty. p. 21. Sect. 13. Several privileges peculiar to him. ibid. Whether he had concurrent Jurisdiction in inferior dioceses within his Province. p. 18. Sect. 9 That See kept Four years by King William Rufus without an Archbishop. p. 24. Sect. 3. In what respects the Archbishop of Canterbury hath some power over the Archbishop of York. p. 18. Sect. 9 The Original of the Metropolitan See of York. p. 14. Sect. 2. The Antiquity, Precedency, Style, and Precincts of the Archbishop of York. ibid. Anciently an Archbishop of London. p. 17. Sect. 7.  
Arch●s-Court, the hig●● Consistory. p. 83. Sect. 6. Why so called. p. 100 Sect. 3. The great Antiquity, Jurisdiction, and decent order 〈…〉 5.  
〈…〉 and what he is. p. 60. Sect. 1. How he 〈…〉 Office and Jurisdiction. p. 61. Sect. 1. The 〈◊〉 kinds of archdeacon's, and how many in England. p. 61. Sect. 2. How they are distinguished by the Canon Law. p. 65. Sect. 10. Whence their P●rer is derived. p. 62. Sect. 3. The Canon touching 〈…〉 to their Visitations. p. 64. Sect. 9 Whether they have Power of Visitation Jure communi. p. 63, 67. Sect. 7. What Remedy in case an Archdeacon d●th refuse to swear the churchwardens elect. p. 164. Sect. 9 Whether an Archdeaconry be understood as a Benefice with Cure p. 62. Sect. 5. and p. 200. Sect. 13  
Arch-Flamins, what, and how many anciently in England, and where. p. 16. Sect. 4. They were succeeded by as many archbishoprics. ibid.  
Arch-Presbyter, what, p. 56. Sect. 7  
Arms, or Coat-Armour on Monuments or Church-windows not to be defaced or demolished. p. 138, 139. Sect. 5  
Arrests, whether they may de executed on Christmas-Day. p. 115. Sect. 12. Whether executable on clergymen in time of Divine service. p. 141. Sect. 8.  
Articles 39 of Religion, what kind of subscription thereunto required. p. 163. Sect. 8. Articles of Religion under King Ed. 6. p. 8. Sect. 14. The like under Q. Eliz. ibid. Articles of Enquiry on a Jure Patronatus. p. 180. Sect. 2. Articles before the high Commissioners at York against the Vicar of Hallifax. p. 189. Sect. 9  
Articuli Cleri, and circumspect agatis, what. p. 639.  
Assault on a Clerk, whether cognizable before the Ordinary. p. 115. Sect. 12. Assaults in the Church or Church-yard are not to be retaliated. p. 139. Sect. 5  
Assent to the Articles of Religion, what good or not, within the intent of the Statute. p. 163. Sect. 8. Assent of the Ordinary requisite to the Foundation of a Church, p. 207. Sect. 5. Assent of the Patron requisite to the union and Appropriation of Churches, p. 109. Sect. 8.  
Assize de utrum, what, and why so called, p. 644. Sect. 2.  
Attorney at Law, he may not be elected churchwarden, p. 164. Sect. 9  
Audience, or Court of Audience, what it was, where kept, and what matters it took Cognizance of, p. 106. Sect. 7.  
Aumone or Frank Almoigne, a description thereof, it's use and end, p. 338. Sect. 4.  
AVoidance, what, 283. Sect. 1. Twofold, ibid. What difference between Avoidance and Next Avoidance, p. 284. Sect. 2. How many ways it may be, p. ibid. Sect. 3. In what Court cognizable, p. 122. Sect. 21. The difference between the Common and Canon Law in reference to Avoidances, p. 286. Sect. 8. The grant of the Next Avoidance, during an Avoidance, is void, p. 219. Sect. 24. Whether the grant of a Next Avoidance good without Deed, p. 255. Sect. 4.  
Avow or Advowe, what, p. 181. Sect. 5.  
Austin, whether the first that preached the Gospel in England, p. 13. Sect. 1. Whether the first Archbishop of Canterbury, p. ibid. Where buried, p. 16. Sect. 4.  
Award or Arbitrement pleaded in bar of Tithes in the Ecclesiastical Court, and refused, no ground for a Prohibition, p. 122, 123. Sect. 25.   

B.  
BAIL, whether it may be taken for one apprehended by a Capias, De Excom. capiend. p. 651. Sect. 25.  
Banns, what, whence derived; how published; by whom dispensed with, and the legal Requisites in order to such Dispensations, p. 465.  
Bark of Trees, what not Tithable, p. 387.  
Barren Land, the Law touching the Tithes thereof, p. 387. etc.  
Bastard, whence that word, and who properly such, p. 478 Sect. 1. and p. 486. Sect. 16, 18. How differenced from Mulier at Common Law, p. 478 Sect. 2. How distinguished at the Civil Law, p. 480. Sect. 5. How that Law computes the time of a woman's going with Child, p. 482. Sect. 7. How computed at the Common Law, p. 482: Sect. 9 and p. 484. Sect. 12.  
Bastardy, how distinguished at Common Law, p. 478, 479. Sect. 3. It is Triable by the Certificate of the Bishop, p. 122. Sect. 21. How prosecuted in Courts of Justice, p. 480. Sect. 6. and p. 484. 485. Sect. 13. How punished, p. 438. Sect. 10. and p. 485. Sect. 14. Difference between the Common, Civil, and Ecclesiastical Law in reference to Bastardy, p. 487. Sect. 19  
Bawd, whether and where Actionable for calling one so, p. 519, 520. Sect. 11. and p. 520. Sect. 13. and p. 523. 20.  
Beauford Henry, Great uncle to King H. 6. and Bishop of Winchester, made Cardinal, how he thereby fell into a Praemunire, p. 110. Sect. 8.  
Becket Archbishop of Canterbury, his contention with King Henry 2. p. 100 Sect. 2.  
Beech-Trees, how and in what Case Tithable or not. p. 389.  
Bees, in what kind they pay Tithes. p. ibid.  
Benefice Ecclesiastical, the true definition thereof. p. 200. 12. The reasons of that definition. p. ibid. Whether Ecclesiastical Dignities fall under the notion of Benefices. p. 200. Sect. 13. Of what a Benefice consists. p. 200, 201. Sect. 14. No Contract to be made for it, nor is it vendible. p. 201. Sect. 15. Six Signs or Requisites of an Ecclesiastical Benefice. p. ibid. The common distinction thereof. p. 201. Sect. 16.  
Beneficio primo Ecclesiastico habendo, what that Writ imports. p. 647. Sect. 9  
Birch-Trees, whether Tithable after Twenty years' growth. p. 390.  
Bishop, the derivation of that word, and why so called. p. 22. Sect. 1. Anciently he was the universal Incumbent of his diocese. p. 13. Sect. 1. Why called Ordinary. p. ibid. Sect. 2. What things requisite to his Creation. p. 25. Sect. 4. The form and manner of making Bishops. ibid. and p. 26. and p. 50. Sect. 8. His interest and Authority in his several capacities. p. 29, 30. Sect. 9 Whether he may grant Letters of Institution out of his own proper diocese, and under any Seal other than his own Seal of Office. p. 31. Sect. 12. Several things incident to a Bishop qua talis. p. ibid. and Sect. 13. In what respects his Jurisdiction is not merely local. p. 32, 33. Sect. 15. The Dignity and Precedency of Bishops here in England. p. 35. Sect. 19 Their precedency among themselves. p. 13. Sect. 1. Their Capacity of Temporal Jurisdiction restored. p. 36. Sect. 20. They were anciently invested per Annulum & Baculum. p. 24. Sect. 3. and p. 29. Sect. 8. Bishops of London Deans of the Episcopal college. p. 38. Sect. 22.  
Bishoprics in England, all Founded by the Kings of England. p. 24. Sect. 3. How many in England. p. 12, 13. Sect. 1. They were anciently Donative. p. 24. Sect. 3. and p. 29. Sect. 8. Their Patronage is in the King. ibid. How the bishoprics of Wales became annexed to the Crown of England. p. 28. Sect. 6. They were erected into Baronies by King William the Conqueror. p. 35. Sect. 19  
Blasphemy, what; whence so called; Threefold, the severe Punishments inflicted thereon. p. 559, 560. Sect. 1, 2, 3.  
Bona Notabilia, what. p. 104. Sect. 6.  
Bricks, whether Tithable. p. 390.  
Broom, in what Case Tithable or not. p. 390.  
Buck and do, not Tithable, yet payable for Tithe. p. 361. Sect. 20. and p. 380. Sect. 75.  
Bull, or the Pope's Bull, whence so called. p. 341. Sect. 3.  
Burial in the Body of the Church, who hath right to licence it. p. 139. Sect. 5. Whether any thing payable to the Parson for Burial of him out of his Parish, that died in his Parish. p. 188. Sect. 5.  
Burglary to enter a Church by Night with an intent to steal. p. 141. Sect. 8.   

C.  
CAerlegion in Wales, anciently the Metropolis of Britannia Secunda. p. 16. Sect. 4.  
Calves, how Tithed, and when, and what kind of Tithes they yield. p. 390.  
Camois, or Sir John de Camois, the remarkable Case of his demising his Wife. p. 474. Sect. 11.  
Canon-Law, when and how first introduced into England. p. 129, etc. Sect. 44. Where and by whom it was first read in this Kingdom. p. 132. Sect. ibid. Whether it be any part of the Law of England. p. 585, 586. Sect. 3. p. 131. Sect. 44.  
Canons anciently made by the Kings of this Realm without the Pope. p. 6. Sect. 8. They were ever called the King's Canons, not the Bishops. p. ibid. They cannot be made, nor oblige the Subject without the Royal assent. p. 7. Sect. 11. and p. 99 Sect. 2. They may not be repugnant to the King's Prerogative, nor to the Laws or customs of the Realm. p. ibid. p. 9 Sect. 14. p. 163. Sect. 5. p. 192. Sect. 15. p. 589. Sect. 6. What Canons in force. 1 Ed. 6. p 585. Sect. 2. They are the Ecclesiastical Laws of the landlord. p. 112. Sect 9  
Canterbury, anciently the Royal City of the Kings of Kent. p. 13. Sect. 1. when first declared to be the Metropolitan Church of England, Scotland, and Ireland. p. 20 Sect. 13.  
Cathedrals, whence so called. p. 347. Sect. 1.  
Cathedraticum, what; and how it differs from Procurations; p. 72. §. 9 the original thereof. ib.  
cattle, in what cases tythable or not, and the Herbage thereof. p. 390, 391. p. 366. Sect. 33. p. 367. §. 35. whether young cattle are tythable. ib. p. 370, 371. §. 43. whether the Herbage of Barren cattle be tythable. p. 373. §. 46.  
Caveat entered against an Institution to a Benefice, whether it makes void such Institution made after the entering of the Caveat. p. 276. §. 34. p. 280. §. 18 whether a Caveat entered in the life time of an Incumbent be void. ib.  
Cautione admittenda, what that Writ imports, and the effect thereof in Law. p. 648. §. 10.  
Certificate of the Bishop, requisite in a Plea of Bastardy. p. 484. §. 13. in what Case traversable. p. 88 §. 12.  
Session, what. p. 286. §. 9 where Cognizable. p. 122. §. 11.  
Chalk, whether tythable. p. 391.  
Chancel, by whom to be repaired, p. 143. §. 10. p. 175. §. 4. In whom the Freehold thereof 〈◊〉. p. 150. §. 22.  
Chancellor of a Diocese a description of his Office. p. 81. §. 1. What matters cognizable by him. p. 85. §. 10. The original and use of that Office p. 81, 82. §. 2. What the Canons enjoin concerning such p. ibid. §. 3. Why called the Bishop's Vicar General. p. 81. §. 1. Whether a Divine not experienced in the Civil and Canons Laws may be a Chancellor p. 82, 83. §. 4.  
Chaplains, whether the King, Queen, Prince, and Children of the Blood Royal, may retain as many as they please. p. 294. §. 3. How many the Archbishop of Canterbury may retain. Ibid., & p. 21. §. 13. and p. 32. §. 13. How many retainable by a Bishop, ib. How many by a Duke, Marquess, Earl, and other persons of honour, p. 294. Sect. 3.  
Chappel, whence that word p. 145, 146. Sect. 15. How many kinds thereof. ibid. What a Chapel of ease, and what a Free chapel is, and by whom visitable. Sect. ibid. The Imperial Law touching the building of Chapels. p. 146. Sect. 17.  
Chapter, what, p. 56. Sect. 8, etc. The difference between Capitulum and Conventus. p. 58. Sect. 9  
Charles Martell, the first that violated the Church in point of Tithes. p. 354. Sect. 7.  
Charter of William the conqueror touching Consistories. p. 84. Of King John touching the Election of Bishops. p. 183. Sect. 10. Of King H. 8 touching Pentecostals. p. 74.  
Chaunter and chantry, what. p. 392, etc. Sect. 6. Certain differences in Law touching Chauntries. p. 331. Sect. 8.  
Che●se, in what Case to be Tithed or not. p. 391.  
Cherry-Trees, where adjudged Timber and Tithe-free. p. 392.  
Chicken, how Tithable or not. p. 392.  
Child, how reputed legitimate or not, as to the time of its Birth in computation from the time of its conception. p. 484. Sect. 12.  
Chorepiscopi, what. p. 30. Sect. 11.  
Christmas-day, whether Arrests may be made thereon. p. 115. Sect. 12.  
Church, none such in Law until Consecration, p. 142. Sect. 9 Anciently a Sanctuary, p. 141. s. 8. Threefold, p. 136. s. 1. Church-Lands prohibited by the Imperial Law from being alienated, p. 136. s. 2. In whom the Freehold of the Church and Church-yard is, p. 137. s. 3.  
Churchwardens, by whom Eligible, and wherein their Office consists, p. 160, etc. Sect. 1. p. 162. s. 4, 5. p. 168. s. 21. & p. 166. s. 14. Whether they are a Corporation in Law, p. 162, 163. s. 5. & p. 164. s. 11. and whether as such they may take Lands to the use of the Church, p. 167. s. 17. & p. 168. s. 22. What power they have touching Seats in the Church, p. 140, 141. s. 7. What Actions may lie for or against them, p. 161. s. 2. p. 163. s. 7, 8. p. 167. s. 18. p. 168. s. 20. p. 186, 187. s. 3. Before whom they are to make their Account, p. 161. s. 1. p. 166. s. 16. & p. 167. s. 19 Whether the New churchwardens may have Action for Trespass done in their Predecessors time, p. 162. s. 3.  
Cistercians, discharged of Tithes, p. 401. Their privilege in respect of Synodals, p. 72. s. 9  
Citation, whether it may issue originally out of the Archbishop's Consistory, to any not inhabiting within his diocese or Peculiar, without licence first obtained from the Diocesan, p. 20. sect. 12. p. soi. s. 3. p. 105. s. 6.  
City, what properly, p. 15. s. 3.  
Clay, whether Tithable, p. 392.  
Clergy, whence so called, p. 61. s 1. Margin. What their privileges, p. 193, etc. s. 18.  
Clerico capto per Statututum Mercatorum, what that Writ imports, p. 648. s. 12.  
Clerico convicto commisso Goalae in delectu Ordinarii deliberando, what that Writ signifies, p. ibid. s. 13.  
Clerico infra Sacros Ordines constituto, non eligendo in Officium, what the use and end of that Writ, p. ibid. sect. 11. & p. 652. s. 26.  
Clothes Fulled in a Fulling-Mill, whether Tithable, p. 392.  
Coals, whether Tithable, p. ibid.  
Coat-Armour in a Church, whether Action lies against such as pull it down, and for whom, p. 139. sect. 5. p. 150. s. 22. p. 154. s. 35. p 156. s. 38. p. 157. s. 42.  
Collation, what, p. 252. s. 1. How it differs from Presentation and Institution, ibid. It is only in Right of the Patron, p. 254. s. 3.  
Commendam, what, p. 230, 231. sect. 1. Threefold, p. ibid. & p. 232. s. 3. The Law touching Commendams, p. 232. sect. 4, etc.  
Commissary or Commissarus Foraneus, what p. 81. Sect. 1. & p. 83. S. 5. and p. 89. Sect. 15. Whether the Grant of a Commissarie's place or the reve●●an thereof by a Bishop, shall bind his Successors, p. 90, 91. Sect. 17, 8. Whether the Office of a Commissary may be granted to a Lay-person, p. 90 91. Sect. 18. p. 89. Sect. 15.  
Common of Estovers, whether Tithable, p. 392.  
Commposition in reference to Tithes, what the Law therein, 392, 393. For a man's life, whether good without Deed, p. 372. Sect. 45. For one year, or more, whether good without Deed, p. 377. Sect. 61.  
Commutation for Penance justifiable by Law, p. 89. Sect. 14.  
Confirmation of Bishops, what, p. 44. Sect. 3, 4. The form thereof, ib. and p. 25, 26.  
Congee d'Eslire, what, p. 29. Sect. 7. p. 42. Sect. 1. The original thereof, ibid. Restrictions thereof, p. 29. Sect. 8.  
Consecration of Bishops, what, p. 46. Sect. 1. The manner how, and the ancient solemnity thereof, p. 25, 26. Sect. 4. It is Character indelebilis, p. 49. Sect. 6. The Scandal forged by the Romanists, touching Consecration of Bishops in England, p. 27. Sect. 4. How Churches were anciently consecrated, p. 47, 48. Sect. 3, 4, 5.  
Consent to the 39 Articles, what not good, p. 163. Sect. 8.  
Consistory, what, p. 83. Sect. 5, 6. Whence the word derived, and the divers significations thereof, p. 83, 84. Sect. 6. Constituted by Willam the conqueror, p. 84. Sect. 7. The Original and Antiquity of Consistories, p. ibid. Sect. 7. The difference between Consistorium and Tribunal, p. 85, Sect. 9  
Consolidation of Churches, what, and whence so called, p. 169. Sect. 1. How distinguished in Law. p. 172. Sect. 6. How many ways it may be. p. 170. Sect. 2. The reasons or grounds thereof in Law. p. 170, Sect. 3. The legal requisites in order thereto. p. 171. Sect. 4.  
Constitutions of Claringdon, in order to Church-government. p. 100 Sect. 2.  
Consultation, in what Cases it hath been awarded. p. 116. Sect. 12. p. 165. Sect. 11. p. 125. Sect. 31. p. 141. Sect. 7. p. 143. Sect. 10. p. 144 Sect. 12. p. 193. Sect. 17. p. 393. Sect. 27. p. 376. Sect. 56. p. 379. Sect. 71. p. 380. Sect. 73. p. 174. Sect. 1. p. 385. 394. 401. 410. 413. 414. 415. 420. 422. p. 426. 431. 435. 450. 453. 459. 463. 464. 506. Where a Consultation is awarded after a Prohibition, there no new Prohibition to be on the same Libel. p. 116. Sect. 112.  
Convocation Court, what. p. 98. Sect. 2. p. 586. Sect. 4. How and by whom convened. p. 99 Sect. 2. p. 586. Sect. 4. The Antiquity, Power, privileges, and Jurisdiction thereof. ibid.  
Coneys, Taken in a Warren, whether Tithable. p. 393. They are not Tithable of Common right. p. 375. Sect. 53.  
Corn, The Law in reference to the Tithes thereof, p. 393, 394, etc. A Case in Law touching Corn set out for Tithes, and left by the Parson on the Ground. p. 362. Sect. 23.  
Costs of Suit, in what Case not given upon failure of proof of a suggestion within the six months. p. 378. Sect. 66. Costs obtained by churchwardens in a Suit for Reparations, are to the use of the Church. p. 144. Sect. 12. Costs of Suit discharged by a Pardon relating before the Taxation thereof. p. 116. Sect. 12.  
Covent, anciently a Corporation. p. 328. Sect. 4.  
Councils, to whom the power of calling and dissolving them belongs. p. 5. Sect. 7. The several kinds thereof. p. 584. Sect. 1. Sect. 8. A Catalogue of Councils and Synods. p. 592, etc.  
Courts Ecclesiastical, the several kinds thereof. p. 96. Sect. 1, etc.  
Court of Augmentations, what. p 333. Sect. 10.  
Cow's yielding Milk, whether Tithes due for their Pasture. p. 396.  
Cranmer, when and how he became Archbishop of Canterbury. p. 18. Sect. 8.  
Cuckold, whether Action lies for calling one Cuckoldly Knave, and where. p. 521. Sect 15. p. 520. Sect. 12.  
Curate, whether he may prescribe against the Parson. p. 376. Sect. 56.  
Curtelages, whether Tithes are due out of such. p. 396.  
Custom in reference to Tithes, how it differs from Prescription. p. 396. What customs not Triable in the Ecclesiastical Courts. p. 120 Sect. 17.   

D.  
Damages, who shall have them triple, and in what Case, p. 381. Sect. 76. p. 380. Sect. 72.  
Darrein Presentment, what that Writ imports, in what Case it lies, wherein it differs from a Quare Impedit, and when it abates. p. 644. Sect. 1. p. 648. Sect. 17.  
David, uncle to King Arthur, succeeded Dubritius in the archbishopric of Caerlegion in Wales. p. 17. Sect 6.  
Dean, what; why so called. p. 51. Sect. 1. The several kinds thereof. ibid. Sect. 2. and p. 54. Sect. 4. What Dean and Chapter signifies. p. 51. Sect. 1. Whether they are a Body politic, Spiritual or Temporal, p. 366, 367. Sect. 34. Dean of the Arches, whence so called. p. 103. Sect. 4. Deans Rural, what, p. 33. Sect. 1. A layman, once Dean of Durham. p. 367. Sect. 34.  
Deanary, whereof it consists. p. 55. Sect. 7. Whether deaneries are understood as Benefices with Cure. p. 200. Sect. 13. p. 286. Sect. 6. Whether a Deanary may be a Dispensation be held in Commendam with a bishopric, p. 112. Sect. 10.  
Decimae Majores, & Minores, what and to whom payable, p. 398.  
Decrees and Decretals of the Canon Law, when first published here in England. p. 129. Sect. 44.  
Dear, whether Tithable, p. 375. Sect. 53. and p. 398.  
Defamation, what, and where Cognizable, p. 515, etc.  
Degradation, what, p. 309. Sect. 8. May be done two ways, ibid.  
Deprivation, what, p. 306. Sect. 1. The causes thereof, p. 206, 207. Sect. 2. Where cognizable, p. 122. Sect. 21. Whether a Bar to Tithes due before, p. 398. Whether the Church be void, pending the Appeal from a Sentence of Deprivation, p. 314. Sect. 17.  
Delegates-Court, how Constituted, p. 117. Sect. 13. Whether they may Excommunicate, or grant Letters of Administration, p. ibid.  
Dilapidation. what, p. 173. Sect. 1, 2, 3. The remedies in Law against it; and how many ways it may happen, ibid. Whether it be a sufficient cause of Deprivation, p. 175. Sect. 5, 9 and p. 315. Sect. 19  
Diocese, whence that word derived, p. 101. Sect. 3. What it properly signifies, p. 275. Sect. 8.  
Discharge of Tithes, how many ways it may be, p. 398. In what Cases it may be, or not, p. 358. Sect. 12. p. 368. Sect. 38.  
Dispensation, the true definition thereof, p. 112. Sect. 9 By whom Dispensations may be granted, and in what Cases, p. 107, etc. Sect. 8. Anciently had from the Court of Rome. ibid. It may be without the word [Dispensamus] p. 302. Sect. 18. They are grantable by the King, qua talis, p. 5. Sect. 7. p. 109. Sect. 8. The granting thereof is eminently in the Crown, p. 6. Sect. 9 The Archbishop of Canterbury may be Statute grant them, ibid. p. 19 Sect. 11. The difference between such granted by the Pope formerly, and those granted by the King now, p. 293. Sect. 2. In what Case grantable by the Guardian of the Spiritualties, p. 40. Sect. 3. What remedy in Law in Case he refuse so to do, ibid.  
Divorce, what, 493. Sect. 1. The Causes thereof, ibid. Whether (if for Adultery) it dissolves the Marriage à vinculo, p. 495. Sect. 3, etc.  
Donative Churches, what, p. 202. Sect. 16. The Original thereof, p. ibid. By whom visitable, p. 34. Sect. 18. The Law concerning Donatives, p. 262. Sect. 18. How they cease to be such, and become Presentative, p. 201. Sect. 16. and p. 263. Sect. 21. Whether a Donative in the King's gift may be with Cure of Souls p. 218. Sect. 23.  
Dotards, whether Tithable, p. 405.  
Doves in a Dove-house, what Tithes they pay, p. ibid.  
Druids, their Idol-Temples, when first abolished in England, p. 16. Sect. 4.  
Drunkard, whether actionable to call one so, p. 516. Sect. 3. p. 521. Sect. 14.  
Dubritius, Archbishop of Carlegion in Wales, p. 17. Sect. 6.  
Duplex Querela, what, p. 275. Sect. 8.   

E.  
ECclesia, whence that word derived, p. 136. Sect. 1.  
Ecclesiastical Laws of England, the Antiquity thereof, p. 129, etc. Sect. 44.  
Edgar King, his Zeal for the Church in his Oration to the Clergy of England, p. 97. Sect. 1.  
Eggs, how, when, and in what Case Tithable, p. 405.  
Election of Bishops, how and by whom to be made, p. 43. Sect. 2.  
Eleutherius Pope, what style be gave K. Lucius, p. 4. Sect. 4. p. 111. s. 8.  
Elopement, what it signifies, p. 508. Sect. 13.  
Episcopal Authority derived from the Crown, p. 30. Sect. 10. Episcopal Jurisdiction endeavoured to be taken away, p. 36, 37. Sect. 2.  
Episcopocide in a Clerk, Petty Treason, p. 35. Sect. 19  
Estovers burnt in a house, whether Tithable, p. 372. Sect. 46. p. 392.  
Ethelbert, King of Kent, by whom Canterbury was given to St. Austin for his See, p. 13. Sect. 1. p. 17. Sect. 5. Whether he built St. Paul's Church in London, p. 17. Sect. 7.  
Ethelwolph, Son and Successor to Egbert, the first sole King of England; he was Bishop of Winchester, p. 36. Sect. 19 And the first that enriched the Church of England with Tithes, p. 348. Sect. 1.  
Euginus, whether he were the first that styled himself Pope, the first that consecrated Churches, and the first that decreed Godfathers and Godmothers in Baptism, p. 49. Sect. 7.  
Examination, when and by whom to be performed, p. 270 Sect. 1, 3.  
Excommunication, what, p. 624. Sect. 1, 2. Twofold, ibid. What intended by Excommunication ipso facto, p. 626. Sect. 4. What the causes in Law of That Excommunication, p. 628. Sect. 8. In what manner Excommunication is to be pronounced, p. 626. Sect. 6. By whom it is to be certified, and how, p. 635. Sect. 18. Whether the Ordinary may take Bond of an Excommunicate, for his submission in order to absolution, p. 637. s. 25. whether Excommunication in a Patron, be sufficient cause for a Bishop to refuse the Clerk presented by such Patron, p. 266. Sect. 32.   

F.  
FAculty, or Court of Faculties, or Faculty Office, what, p. 107. Sect. 8. The Archbishop of Canterbury impower'd by the Statute to grant Faculties, ibid. and p. 19 Sect. 11. The force and efficacy thereof to Commendams or two Benefices, p. 107, 109, 110. Sect. 8. The difference between a Faculty to Take and a Faculty to Retain a Benefice, p. 110. Sect. 8.  
Fallow-grounds, whether Tithable, p. 405.  
Fees for Probate of Testaments, what due by Statute, p. 105, 106. Sect. 6.  
F●nny-Lands drained, whether they pay Tithes presently, p. 406.  
Ferae naturae, Creatures of that kind, whether Tithable, p. 405.  
First-fruits, by and to whom payable, p. 337. Sect. 2. vid. Annates.  
Fith taken in the Sea, or in a River, Pond or Piscary, whether Tithable, and how, p. 406. and p. 367. Sect. 36. p. 379. Sect. 68 p. 375. Sect. 53.  
Flamens, how many anciently in England, p. 16. Sect. 4.  
Flax, what Tithes it pays, and when, p. 407.  
Forest-Lands, whether Tithable or not, and by whom, p. 407, 408. Not situate in any Parish, to whom the Tithes shall be paid p. 408. Whether privileged from Tithes, whilst in the King's hands, otherwise in the Subjects, p. 369. Sect. 41. Whether they are privileged from Tithes, if in the hands of the Kings Patentee or Grantee, p. 399. 401.  
Fowl taken, in what Case Tithable or not, p. 408.  
Fraud in setting forth Tithes, whether triple damages in that Case p. 380. Sect. 72. p. 381. Sect. 76.  
Freehold f the Church or Chancel, in whom it is, p. 137. Sect. 3. p. 83. Sect. 4. p. 139. Sect. 5. p. 142. Sect. 9 p. 150. Sect. 22. p. 151. Sect. 25. p. 155. Sect. 38.  
Frigidity in the Man pleaded by the Woman, how the Civil Law proceeds thereon, p. 493. Sect. 1.  
Fruit-Trees, what Tithes they pay, and when, p. 408.  
Fuise, whether Tithable, p. ibid.   

G.  
GArba, or Decima Garbarum, what it signifies, p. 381. Sect. 78.  
Gardens, how Tithable, p. 409. p. 371. Sect. 43.  
Geoffry Plantagenet, Son to King H. 2. was Bishop of Lincoln, p. 36. Sect. 19  
Glass-windows Painted in the Isle of a chapel, if pulled down, whether Actionable, p. 138. Sect. 5.  
Gleab, what, p. 409. The Law concerning the Tithes thereof, ibid. & p. 410. Gleab of a Parsonage Impropriate and Leased, whether Tithable, ibid. & p. 368. sect. 38. Whether Gleab in Lease pays Tithe, p. 362, 363. s. 26. Whether the Freehold of the Gleab, during a Vacancy, be in the Patron or not, p. 183. s. 9 Gleab manured and sowed by an Incumbent that dies before Harvest, who shall have the Corn, p. 318. s. 3.  
Godfathers and Godmothers in Baptism, the Original thereof, p. 49. s. 7.  
Grain, pays a Predial Tithe, p. 411.  
Grant of Tithes, whether good without Deed, p. 386.  
Grass, what Tithes that pays, and how, p. 410, 411. Grass-cocks Tithed, p. 374. s. 50.  
Grave-Stone taken away, whether Actionable, and where, p. 157. s. 42.  
Gravel, whether Tithable, p. 411.  
Grounds let to Strangers out of the Parish, who answers the Tithe, ibid.  
Guardian of the Spiritualties, his Office, and by whom Constituted, p. 39 sect. 1. p. 41. s. 4, 5. His power in the vacancy of an archbishopric, p. 40. s. 2. What Remedy in case he shall refuse to grant Faculties or Dispensations, where they may or aught to be granted, p. 40. s. 3.   

H.  
HAlimots, anciently what, p. 97. Sect. 1.  
Hay, the Law touching Tithe- Hay, p. 412, 413. Whether the Tithes thereof may belong to the Vicar, p. 381. s. 77. Two Crops of Hay from the same ground the same year, whether both Tithable, p. 412.  
Hazel, Holly, Willows, and Whitethorn, in what cases they may be Tithable or not, p. 377. s. 62.  
Headlands, whether Tithable, p. 359. s. 16. p. 369. s. 39 p. 374. s. 52.  
Hearthpeny, the ancient custom thereof, p. 367. sect. 35. p. 372. s. 46.  
Heath, Furse, and Broom, in what cases Tithable or not, p. 413. Barren Heath-ground, in what sense excused of Tithes for the first Seven years, p. 375. s. 53.  
Hedging and Fencing-Wood, whether Tithable, p. 370, 371. s. 43.  
Hemp, what Tithes that pays, p. 413. & p. 366. s. 32.  
Heifers, whether Tithes due for the Herbage thereof, p. 370. Sect. 43.  
Henry de Blois, Brother to King Stephen, was Bishop of Winchester, p. 37. Sect. 16.  
Henry de Beaford, Brother to King H. 4. was also Bishop of Winchester, p ibid.  
Herbage, what, and how Tithable or not, p. 370, 371. Sect. 43. & p. 413. Herbage of Sheep, whether Tithable, p. 464.  
Heresy, what, and whence the word derived, p. 560, 561. Sect. 4. Threefold, ibid. Where Cognizable, p. 561, 562. Sect. 6. How punished, p. 562, 563. Sect. 7. It is Lepra animae, ibid.  
Heretics, an Alphabetical Catalogue of such; their Errors and Heresies; the Times and places when and where broached; and the Councils wherein they were condemned, p. 164, 165, etc.  
High Commission-Court, the Constitution thereof, p. 11, 12. Sect. 14. What the power thereof was, p. 118. Sect. 14.  
Hoel-Dha, his Law against fight in the churchyard, p. 140. Sect. 6.  
Honey, whether and how Tithable, p. 413, 414.  
Hoods to be worn by Proctors in the Arches, when and by whom first enjoined, p. 103. Sect. 4.  
Hops, what Tithes they pay, and how Tithed, p. 414. Whether Great Tithes to the Parson, or Small Tithes to the Vicar, p. 366. Sect. 32. Whether they may not belong to the Vicar by Prescription, p. 381. Sect. 77. The difference in Kent (as to Tithes) between Hops in Orchards, and Hops in Gardens, p. 366. Sect. 32.  
Hop-poles, whether the Wood thereof Tithable or not, p. 414.  
Horses for Husbandry, whether their Pasture be Tithable, p. 371. Sect. 43.  
Hospitallers, either Lay or Spiritual, by whom Visitable, p. 34. Sect. 18. They were discharged of Tithes, p. 402.  
Houses being Dwelling Houses, where Tithable, p. 414, 415.  
Hubert, Archbishop of Canterbury, p. 7. Sect. 11.  
Hundred-Court, the Antiquity thereof, and Extent anciently of its Jurisdiction, p. 96. Sect. 1. p. 84. Sect. 7.   

I  
JAde, to call one Welsh Jade, whether Actionable, and where p. 522. Sect. 17.  
Jealousy, how the Civil Law proceeds therein, p. 472. Sect. 7.  
Ideocy, in what case Triable in the Ecclesiastical Court, p. 120. Sect. 17.  
Jewish heretics, who such anciently, and what their Heresies, p. 580, etc. Sect. 9  
Impotency in a Man, how to be proved, p. 493. Sect. 1.  
Impropriations, how many within York diocese, p. 14. Sect. 2. vid. Appropriations.  
Ina, the Saxon King, whether he the first that gave peter-pences to the Pope, p. 112. Sect. 8. His Law against Striking in the Church, p. 140. Sect. 6.  
Incumbent, what, p. 317. Sect. 1. Legal Requisites to make a complete Incumbent, p. ibid. His Rights, p. 318. Sect. 2.  
Indians, their severe punishment of Adultery, p. 471, 472. Sect. 6.  
Indicavit, what that Writ imports; the end and use thereof; in what cases, and for whom it may be awarded, p. 647. Sect. 6. p. 439.  
Induction, what, and how executed, p. 278. Sect. 16. Whether it be a Temporal Act, and cognizable in the Temporal Court, p. 279. Sect. 17.  
Infant, if under age Admitted and Instituted to a Benefice, it is void, p. 280. Sect. 20. Whether Action lies against a Minor under Seventeen years of age for Slandering, p. 524. Sect. 23.  
Ingulphus, Abbot of Crowland, his Report touching Appropriations, p. 280. Sect. 1.  
Institution, what; the Form thereof; Requisites thereto; and what Remedy, if denied, p. 274. Sect. 8. Institutions are cognizable in the Ecclesiastical Court, p. 123. Sect. 28. The difference between the Civil and Common Law touching Institutions, p. 276. Sect. 9 Whether it works a Plenarty without Induction, p. ibid. Sect. 11. p. 280. Sect. 18. p. 281. Sect. 21.  
Ireland, until what time under the Archbishop of Canterbury, p. 20. Sect. 13.  
Isle of a Church, who may prescribe to it, p. 138. Sect. 4. or whether it may be peculiar to a Family, p. ibid. Sect. 5. p. 158. Sect. ult.  
Jurisdiction Ecclesiastical and Temporal, the Original of that distinction, p. 133. Sect. 44.  
Juris utrum, for and against whom that Writ lies, p. 205. Sect. 1.  
Jure Patronatus, what that Writ imports, p. 206. etc. How the Law proceeds therein, p. 179. s. 2. In what case the Bishop may make use thereof, and his power therein, p. 33. s. 16. At whose charge it is to be, p. 180. s. 3. What Jus Patronatus is, p. 205. s. 1.  
Jus Canonicum, the Original thereof, p. 132. s. 44.   

K  
KAnute King, his strict Law concerning Abbots, p. 328. Sect. 3.  
Knave, whether Actionable to call one so, p. 517. s. 4. & p. 524. s. 21, 24.   

L  
Lamb's, how Tithable, p. 416. They yield a small Tithe, and may belong to the Vicar, p. 198. Sect. 3. p. 359. s. 16. In what case they may be Great Tithes, and payable to the Parson, p. 366. s. 32.  
Lands accrueing to the Crown by the Statute of Dissolutions, whether they shall pay Tithes, p. 416.  
Lapse, what, p. 242. s. 1. The Original and gradations thereof, ibid. The difference between the Common and Canon Law as to the time of Lapse, p. 245. sect. 2. When the Six Months shall commence, ibid. How the Six Months before a Lapse are to be computed by days, and how Notice shall be given to the Patron or not before the Lapse incurs, p. 247. s. 4. Whether a Grant may be made of a Lapse, p. 248. s. 5. A Lapse is more a Trust than an Interest, ibid. From what time the Lapse shall incur, ibid. s. 6. In what case the Lapse may incur to the Ordinary, notwithstanding a Quare Impedit brought by the Patron, p. 183. s. 10.  
Lapse made by one Bishop de facto during the life of another de jure, of the same diocese, whether good, p. 38. s. 23. Leases of Tithes, whether Triable in the Ecclesiastical Court, p. 127. s. 140. They must be by Deed, not Parol, p. 382. s. 81. Leases made by Parsons, p. 199. s. 10. Cases at Common Law touching the same, p. 190. s. 10, 11. p. 193. s. 17.  
Legacies, properly suable for in the Ecclesiastical Court, p. 113. sect. 11. p. 125. s. 34. & p. 126. sect. ibid.  
Legates of the Pope, of Three sorts, p. 20. s. 12. p. 102. s. 3. Legatus Natus, what it imports, and who were such in England, p. 20. s. 12. p. 21. s. 13. & p. 105. s. 6.  
Lessee to Parson and Vicar, whether he may Sue for the Tithes in one Action, or must divide his Actions, p. 381, 382. s. 80.  
Letter expressing the Grant of the Next Avoidance, vain and ineffectual, p. 285. s. 4.  
Libel, whereof a true Copy denied, is ground for a Prohibition, p. 122. Sect. 24.  
Licence to carry away Tithes without setting them forth, given by a Collector of Tithes, whether good, p. 379. s. 71.  
Lime, Marle, Slates, or Tiles, whether Tithable, p. 417.  
Lind wood, what he was, and when his Provincial Constitutions were compiled, p. 208. s. 5.  
Litigious, how many ways a Church may so become, p. 181, 182. s. 6.  
Lollards, what they were, and why so called, p. 561. s. 5.  
London, anciently an archbishopric, p. 17. s. 7. The Metropolis of Britannia Prima, p. 16. s. 4. The Archiepiscopal See thereof removed and placed at Canterbury by the Saxons, p. ibid.  
Lops of Trees, whether Tithable after Twenty years' growth, p. 417.  
Lucius, First Christian King of Britain, p. 15. s. 4. By whom Converted to the Christian Faith, ibid. When baptised, p. 16. s. 4.   

M  
MAhumetans, their severe punishment of Adultery, p. 471. Sect. 6.  
Malum in se and Malum prohibitum, the Legal difference between them, p. 10. s. 14. p. 187. s. 4.  
Marriage after Divorce, altera parte existente, whether lawful, p. 495. s. 3, etc.  
Marsh-Lands, or Fenn-Lands, newly gained from the Sea, whether under the notion of Barren Lands, as to any discharge of Tithes, p. 387.  
St. martin's Le grand, London, whether it be an Ecclesiastical Benefice, p. 202. s. 16.  
Mast of Oak, or Beech, whether Tithable, and how, p. 417.  
Masters of Chancery, what they were anciently, and why so called, p. 550. s. 21.  
Meadows overrun with Thorns and Bushes, whether Tithable, p. 417.  
Metropolitan, why so called, the derivation of that word, p. 15. sect. 3.  
Midwives questioned in the Ecclesiastical Court for exercising that Calling without a licence from the Ordinary, whether Prohibition lies, p. 126. s. 36.  
Milk paying Tithes, exempts the Cheese from payment thereof, p. 391, 420.  
Milk-cows, whether their Pasture be Tithable, p. 372. s. 44.  
Mills, the Law concerning the Tithes thereof, p. 417.  
Millstones, in what cases Tithes shall be paid of them, and how, p. 420.  
Mines or Minerals, whether Tithable, p. 420. & p. 368. Sect. 36.  
Mixed Tithes, what, p. 420.  
Modus Decimandi, what the Law therein, p. 420, etc. Cognizable in the Ecclesiastical Court, p. 119. Sect. 17. p. 125. s. 33. p. 127. s. 42. p. 364. p. 373. s. 48. p. 379. s. 67. p. 363. s. 28, 29. p. 128. s. 43. In what case it may be Triable at Common Law, p. 368. s. 36. A Modus pleaded to obtain a Prohibition, p. 377. s. 60.  
Moieties of Tithes, if between two Parsons, whether the Parishioner be obliged to divide them, p. 362. s. 24.  
Monastery-Lands, the Law touching them in reference to Tithes, p. 422, 423.  
Monuments erected in Churches or churchyards, if defaced or pulled down, what Action lies, and for whom, and where Cognizable, p. 142. Sect. 9 p. 139. s. 5. p. 154. s. 33.  
Mortuaries, the Law concerning them, p. 423, 424.  
Mulier, what at the Common Law, 478 s. 2. p. 486. s. 17. What by the Civil, p. 487. s. 19 How it differs from Bastard, p. 478 sect. 2. p. 486, 487. s. 18, 19   

N  
NAg, whether Tithes due for the Pasture of a Riding Nag, p. 425. p. 360. Sect. 18. p. 371. s. 43. & p. 429.  
Ne admittas, what that Writ imports, the end and use thereof, p. 646. s. 4.  
Ne unques accouple en Loyal matrimony, is to be tried by the Certificate of the Bishop, p. 122. s. 21.  
Next Avoidance, what, p. 284. sect. 3.  
Nomination, what, p. 259. sect. 11. Qualifications thereof, ibid. In what case it may be the same with Presentation, p. 260. s. 12. It may be corrupt and Simonical as well as the other, p. ibid. sect. 13.  
Non obstante, in Faculties granted by the Pope, of what efficacy in Law, p. 109. s. 8.  
Non Residence, what, p. 319, sect. 9, 10. What shall excuse it, p. 320. s. 9, 10. p. 321. s. 13. What shall be held Non Residence within the Statute, or not, p. ibid. sect. 12, 13. p. 323. s. 16. The Ancient Canons touching Non Residence, p. 320. s. 10. p. 322. s. 15. Whether Non Residence makes void a Lease of Tithes made by the Parson, p. 323. s. 16. & p. 384. s. 18.  
Notice of Avoidance, when and how to be given to the Patron, p. 181. Sect. 4. p. 245. s. 2. To be given in case of Session, p. 287. s. 11. Whether Notice of setting forth Tithes is to be given to the Parson, p. 376. s. 58. p. 450.  
Novatius, his Error concerning Bishops, p. 23. s. 1.  
Nurseries of young Trees and Plants, whether and in what case Tithable or not, p. 426.   

O  
OAth of Supremacy, the Original thereof, p. 3. Sect. 3. Oath of Residence, p. 320. s. 11.  
Oaks, the Law of Tithes touching them, p. 426.  
Oblations, what properly they are, and the Law thereof, p. 426, 427. What are not such, that are commonly so supposed to be, p. 156. s. 38.  
Obligation to Resign a Benefice, whether good, p. 189. sect. 7. Obligation not to accompany such a Woman, taken in the Ecclesiastical Court, p. 114. s. 12.  
Odo, Brother to William the conqueror; he was Bishop of Bayeux in Normandy.  
Offerings, Oblations, and Obventions, the Law concerning them, p. 426, 427.  
Office of Register to a Bishop, if controverted, where Cognizable, p. 126. sect. 35. The difference in point of Jurisdiction between a Right to and the Exercise of an Office, p. 93. s. 20.  
Officiales Foranei, what, p. 81. s. 1. p. 89. s. 15.  
Orchard, the Ground thereof sowed with Seed, whether Tithable, p. 427. Tithes of Orchards by custom, p. 367. s. 35. Orchard formerly Arable, to whom Tithable, p. 361. s. 21.  
Ordinary, what, p. 32. sect. 14. Why the Bishop so called, p. 23. sect. 2. What the Civil Law understands by that word [Ordinarius,] ibid. Whether he may Cite a man out of his own diocese, p. 33, 37. s. 17. p. 104, 105. s. 6. Whether he may dispose of any of an Intestates Goods to pious uses, in what case, and under what Cautions and Limitations, p. 106. s. 6. He hath Curam Curarum, p. 32. s. 14.  
Organs in a Church, to whom they belong, p. 167. s. 18. if taken away, where the Action lies, p. 161. s. 2.  
Ornaments of the Church, at whose charge to be provided, and how the same shall be charged, p. 137. sect. 4. p. 152. s. 29. p. 154. s. ●4.   

P  
Pagans', the strange Punishments inflicted by them on Adulterers, p. 470. Sect. 4.  
Pallium Episcopale, a description thereof, p. 23. s. 2.  
Pander, whether to call one so be Actionable, p. 524. s. 21.  
Pannagium, what that word signifies, p. 383.  
Pardon, whether it may extend to prevent a Deprivation, p. 312. s. 15. Whether a General Pardon shall bar a Suit in the Ecclesiastical Court for Slander, p. 121. s. 19 In what case it may bar Costs of Suit, p. 116. s. 12.  
P●rk disparked, how Tithable, p. 361. sect. 20, 21. p. 364, 365. s. 31. p. 427, 428. How to be Tithed, if converted into Tillage, p. 361. s. 20. & p. 380. s. 75.  
Parish, the various acceptation of that word, p. 355, 356. sect. 8. By whom Parishes were first divided, p. 72. s. 8, 9 Parochial Bounds, where Cognizable, p. 126. s. 37. p. 128. s. 28. p, 125. s. 31. p. 157. s. 40. p. 153. s. 31. & p. 380. s. 74. Being Controverted between Spiritual persons, are Cognizable in the Ecclesiastical Court, p. 123. s. 27. Otherwise at the Common Law, p. ibid. s. 28. p. 124. s. 30. p. 126. s. 37.  
Parish-Clerk, by whom to be chosen, p. 166. s. 12. & p. 192. s. 15.  
Parson, who properly such, p. 185, 186. s. 1. He hath a double Capacity, p. 193. s. 16. Parson Imparsonee, what, p. 186. s. 2. How he ought to be qualified to be a Parson, p. 187. s. 4. Requisites in Law for that Function, ibid. What his Rights are, p. 186. s. 3. The difference between Parson, Pastor, Rector, Vicar, and Curate, p. 186. s. 1.  
Parsonage, Church, and Rectory, are terms Synonymous, p. 188. sect. 6.  
Patridges and Pheasants, though not Tithable, yet paiable in lieu of Tithes, p. 361. sect. 20. What Tithes tame Patridges shall pay, p. 428.  
Pasture, the Law in reference to the Tithes thereof, p. 428, 429.  
Patria obedientiae, and Patriae consuetudinariae, the difference between them, p. 130. s. 44.  
Patriarch, what, p. 20. s. 13. A Style or Title anciently given to the Archbishop of Canterbury, p. ibid.  
Patron, what he is, and why so called, p. 178. sect. 1. p. 205. s. 1. Who is properly the Patron of a Vicarage, p. 199. s. 9 Whether a Patron hath any thing to do in the Church during a Plenarty, p. 191. s. 12. His Consent requisite to Commandams, unions, and Appropriation of Churches, p. 229. s. 8.  
Paul or St. Paul, whether he preached here in England, p. 16. Sect. 4. St. Paul's Church London, by whom first built, p. 17. Sect. 7.  
Paulinus, Archbishop of York, p. 14. Sect. 2.  
Pease, in what Case not Tithable, p. 429.  
Pelagius, a Monk of Bangor, his refusal to appear at Rome upon the Pope's Summons, p. 111. Sect. 8.  
Pelagian heresy, when this Kingdom first infected therewith, and by whom suppressed, p. 16. Sect. 5.  
Peculiars, or the Court of Peculiars, what it was, p. 119. Sect. 16. How many Peculiars in the Province of Canterbury. ibid.  
Pelts or Fells of Sheep dying of the Rot, whether Tithable, p. 429.  
Pensions suable in the Ecclesiastical Court, p. 127. Sect. 41. p. 188. Sect. 6. p. 198. Sect. 5. p. 376. Sect. 57  
Pentecostals, what, and whence so called, p 73, 74. Sect. 10.  
Peter's Church in Cornhill, London, once the Cathedral of a diocese p. 17. Sect. 7. By whom founded, ibid.  
Peterpences, what; The Original thereof, and why paid to Rome, p. 73, 74. Sect. 10. p. 112. Sect. 8. p. 356. Sect. 9 The conqueror's Law concerning the same, p. 73. Sect. 10. Anciently taken from the Pope, and given to the King, p. 100 Sect. 2.  
Pews in the Body of the Church, at whose disposal they are, p. 137. Sect. 3. p. 156. Sect. 38. p. 158. Sect. ult. vid. Seats.  
Pheasants, of what kind are Tithable, p. 430. Though properly not Tithable, yet as a Modus may be paid for Tithes, p. 380. Sect. 75.  
Pictures in Church-windowes, if pulled down, whether Actionable, p. 138. Sect. 5.  
Pigeons, in what Case Tithable or not, p. 430. Spent in the Owners House, not Tithable, p. 368. Sect. 37. p. 375. Sect. 53. Otherwise if sold, ibid. Felony to steal them out of a Dove-house, ibid. vid. Doves.  
Pigs, how Tithable, p. 430.  
Pilchards, and other Sea Fish, whether Tithable, and how, p. 379 Sect. 68  
Pimp, whether and where Actionable to call one so, p. 521. Sect. 16.  
Pits of Stone, Lime, etc. whether Tithable, p. 430.  
Plants, transplanted, whether Tithable, p. 431.  
Plato 's Law concerning Adulterers, p. 473. Sect. 9  
Plurality, what, p. 292. Sect. 1. Who may grant or receive Pluralities, p. 294. sect. 3. Qualifications in Law touching Dispensations for Pluralities, p. 295. Sect. 4. Whether the taking of a Parsonage with a Vicarage endowed, amounts to a Plurality within the intent of the Statute, p. 296. sect. 5. The Text of Canon Law against Pluralities, p. 300. sect. 15.  
Pope, when his usurpation in England first began, p. 97. Sect. 1. When and by whom here first abrogated, p. 18. Sect. 8. What his power was in granting Dispensations, p. 5. Sect. 7.  
Postulation, what, p. 49. Sect. 8.  
prebend's, what, and why so called, p. 35. Sect. 19  
Prerogative Court of Canterbury, the Jurisdiction thereof, p. 104. Sect. 6.  
Prescription, p. 431. to 436. The Law thereof in reference to Tithes, ibid. and p. 358. Sect. 12. In what Court cognizable, p. 367. Sect. 29. p. 125. Sect. 33. In what Case a Parson prescribing for Tithes may sue on that Prescription in the Ecclesiastical Court, ibid. Prescription merely Spiritual, Cognizable in that Court, p. 156. Sect. 39 Prescription to a Seat in a Church, or to Priority in that Seat, whether cognizable in the Temporal Court, p. 138. Sect. 5. p. 140. Sect. 7. p. 142. Sect. 9 p. 149. Sect. 21. p. 155. Sect. 38. p. 147. Sect. 18. p. 151. Sect. 25. Whether a Prescription to Ecclesiastical things be Cognizable in the Ecclesiastical Court, p. 153. Sect. 33. Prescription pleaded by a Parson against the first Endowment to the Vicar, whether allowable, p. 375. Sect. 54. Prescription de non decimando not denied to a Spiritual person, p. 399. The difference between the Civil and Common Law in point of Prescriptions, p. 129. Sect. 43.  
Praemonstracenses, how discharged of Tithes, p. 402.  
Presentation to a Benefice what, p. 254. Sect. 4. Where the Right of Presentation is cognizable, p. 256. Sect. 6. What the Law touching Presentation is, in case of Copareeners, joint-tenants, and Tenants in Common, p. ibid. Sect. 7. How the Presentation is to be in case of Coheirs, p. 255. Sect. 4. Whether a Presentation be revocable before Institution, p. 258, 259, Sect. 9, 10. What Presentation shall serve for a Turn, p. 262 Sect. 19 To what things a Presentation may be, p. 263. Sect. 21. In what Cases the King shall have the Presentation by his Prerogative, p. 263, 264. Sect. 23, 24. The difference in Law between the King and a Common person as to Presentations, p. 265. Sect. 28.  
Primate and Metropolitan of all England, when and how that style on title first vested in the Archbishop of Canterbury, p. 18. Sect. 8.  
Priority in the Seat of a Church, whether it may be prescribed, p. 140. Sect. 7.  
Privileges of the Clergy, p. 193, etc. Sect. 18. Privilege in respect of Tithes, what, p. 436.  
Procuration, what p. 67. Sect. 1. When and to whom payable, ibid. Whether due without the Act of visiting, p. 68 s. 2. p. 69. Sect. 4. p. 75. s. 10. p. 78. Sect. 11. Anciently paid in victualibus, when and how changed into Money, p. 68 Sect. 3. How the Canonists define it, p. 69. Sect. 5. Only one Procuration to be paid to the Ordinary, how that is to be understood, p 70. Sect. 6.  
Prohibition, in what Cases it hath been granted, p. 89. Sect. 16. p. 114. Sect. 12. p. 121. Sect. 17. p. 93. Sect. 20. p. 122. Sect. 22. p. ibid. Sect. 23, 24. p. 126. Sect. 36, 37, 38, 39 p. 128. Sect. 43. p. 138. Sect. 4. p. 140. Sect. 7. p. 144. Sect. 13. p. 113. Sect. 11. p. 121. Sect. 20. p. 148. Sect. 20. p. 151. Sect. 24. p. 149. Sect. 22. p. 151. Sect. 25. p. 152. Sect. 26, 28. p. 153. Sect. 30, 31. p. 127. Sect. 40. p. 119. Sect. 15. p. 163. Sect. 5. p. 114. Sect. 12. p. 149. Sect. 21. p. 188. Sect. 5. p. 142. Sect. 9 p. 152. Sect. 29. p. 153. Sect. 32. p. 155. Sect. 38. p. 157. Sect. 40. p. 374. Sect. 49. p. 377. Sect. 62. p. 379. Sect. 67. p. 387. 393. 409. 410. 407. 425. 429. 430. 436. p. 473. Sect. 7. p. 485. Sect. 15. p. 177. Sect. 8, 9 p. 373. Sect. 47. p. 190. Sect. 9 p. 166. Sect. 12, 13, 14. p. 167. Sect. 19 p. 176. Sect. 8. p. 277. Sect. 12. p. 92. Sect. 19 p. 101. Sect. 3. p. 104. Sect. 6. p. 119. Sect. 17. p. 147. Sect. 18. p. 298. Sect. 9 p. 166. Sect. 15. p 198. Sect. 4. p 258. Sect. 10. p. 267. Sect. 34. p. 115. Sect. 12. p. 299. Sect. 11. p. 281. Sect. 22, 23. p. 116. Sect. 12. p. 164. Sect. 9, 11. p. 319. Sect. 7. p. 359. S. 14. p. 369. Sect. 40. p. 192. Sect. 15. p. 364. Sect. 30. p. 368. Sect. 37. p. 361. Sect. 20, 21. p. 362. Sect. 22. p. 368. Sect. 38, 39 p. 371. Sect. 43. p. 375. Sect. 53. p. 362. §. 25. p. 365. §. 31. p. 369. §. 39 p. 378. §. 64. p. 382. §. 82. p. 520. §. 12. p. 517. §. 5. p. 505. §. 12. p. 521. Sect. 14. p. 523. §. 19 p. 524. §. 21. In what Cases the Prohibition hath been denied, p. 83. Sect. 4. p. 115, 116. Sect. 12. p. 119, 121. Sect. 17, 18. p. 122, 123. §. 25, 26, 27, 28. p. 124. §. 29. p. 125. §. 31, 32, 33, 34. p. 126. §. 39 p. 127, 128. §. 42, 43. p. 137. §. 3. p. 144. §. 11. p. 148. §. 19 p. 153. §. 30. p. 174. §. 1. p. 152. §. 27. p. 364. sect. 29. p. 380. sect. 74. p. 156. sect. 39 p. 166. sect. 16. p. 198. sect. 5. p. 318. sect. 5. p. 359. sect. 15. p. 120. sect. 17. p. 92. sect. 19 p. 366. sect. 33. p. 376. sect. 57 p. 364. sect. 29. p. 386. p. 389. p. 412. p. 413. p. 420. p. 429. p. 451. p. 456. p. 464. p. 520. sect. 13. p 512. sect. 18. p. 507. sect. 12. p. 521. sect. 15. p. 523. sect. 17. p. 525. sect. 24. p. 526. sect. 24. p. 527. sect. ult. Whether a Prohibition may be granted after Sentence, and in what Cases, p. 192. sect. 15. p. 381. sect. 76. p. 116. sect. 12. p. 120. sect. 17. p. 124. sect. 29. Whether a Prohibition may be after an Appeal, p. 148. sect. 21. A Prohibition whether grantable after a Consultation, p. 147. sect. 18. or de novo to an Appellant who had a Prohibition in the first instance, p. 360. sect. 19 p. 431. Prohibition granted against Costs of Suit, given to an Informer, p. 473. sect. 7. Whether a Prohibition lies, in case proof by one single Witness be disallowed in the Ecclesiastical Court, p. 362. sect. 22. p. 113. sect. 11. p. 115. sect. 12. p. 123. sect. 26. p. 128. sect. 43. Whether a Prohibition may be granted the last day of the Term, p. 147. sect. 18. Or to stay Proof in Perpetuam rei memoriam, p. 374. Sect. 49.  
Proxies, what, p. 70. Sect. 5. p. 75. Sect. 11. The same with Procurations, ibid. Whether extinguished by the dissolution of Religious Houses, p. 76 etc. Sect. 11. Not known to the Primitive Church, ib. Whether grantable by a Bishop to the King, §. ibid. The Case of Proxies aptly compared to the Case of Tithes, p. 79. Sect. 11. A Case of Remark at Common Law touching Proxies, p. 75, etc. Sect. 11.   

Q.  
QUare Impedit, for and against whom that Writ lies, p 645. Sect. 3. Of what things it lies, p. 649. Sect. 20, 21. Whether it lies for an Archdeaconry, p. 66. Sect. 14.  
Quarta Episcopalis, what, p. 77. Sect. 11.  
Quaries, whether Tithable, p 436.  
Quean, whether Action lies for calling one so, p. 517. Sect. 5. p. 523. Sect. 18. p. 520. Sect. 12.  
Queen Elizabeth, her Declaration touching her Supremacy, p. 10. Sect. 11. Declared supreme Governess on Earth of the Church of England, p. ibid. Sect. 14.  
Questmen, what, by whom Eligible, and wherein their Office doth consist, p. 163. Sect. 6.  
Quorum Nomina, Process of that kind prohibited, p. 60. Sect. 6. p. 82. Sect. 3.   

R.  
RAbbits, whether Tithable, p. 367. Sect. 36.  
Raking of the stubble of Corn, whether Tithable, p. 384. p. 436, etc.  
Rapeseed, whether shall the Parson or the Vicar have the Tithes thereof, p. 381. Sect. 77.  
Rate-Tithes, in what Cases payable, p. 391. p. 437.  
Rectors, how distinguished from Vicars, p. 186. Sect. 1.  
Refusal of a Clerk by a Bishop, because he could not speak the Welsh Language, p. 276. Sect. 36. Once Refused for Insufficiency, may not after be received, p. 268. Sect. 39  
Register to a Bishop's Consistory, the Office controverted, where Cognizable, p. 126. Sect. 35.  
Registry-Book of a Parish for christen and Burials, the Original thereof, p. 145. Sect. 14. p. 164. Sect. 10.  
Release by one churchwarden, whether any Bar to the Suit of his Companion, p. 144. Sect. 12. p. 165. Sect. 11. p. 161. Sect. 2. Release of a Next Avoidance, made after the Church becomes void, is void, p. 286. Sect. 7.  
Religion Christian, when and where first planted in this Kingdom, p. 13. Sect. 1.  
Rents, of what kind may be sued for in the Ecclesiastical Court, p. 126. Sect. 34. Where the Tithe of Rents in London are suable for, and how, p. 379. Sect. 70.  
Reparations of Churches, where Cognizable, p. 137. Sect. 3. 4 p. 143. Sect. 10. p. 152. Sect. 26. In what Case it may be Cognizable at the Common Law, p. 166. 15. Whether within the Cognizance of the archdeacon's Visitation, p. 60. Sect. 7. Who and what shall be charged with such Reparations, and how, p. 137, 138. Sect. 4. p. 144. Sect. 11. p. 145. Sect. 14. p. 147, 148. Sect. 19 p. 150. sect. 23. p. 152. Sect. 26. p. 175. Sect. 4. p. 153. Sect. 30. p. 157. Sect. 41. p. 149. Sect. 22. How the Tax for such Reparations shall be apportioned between Landlord and Tenant, p. 154. Sect. 34. By whom the Chancel shall be Repaired, p. 175. Sect. 4. Inheritances not to be therewith charged in perpetuum, p. 144. Sect. 13. Whether a Tax for such Reparations may be made by the churchwardens only, p. 148. Sect. 20. How to be in Case of Union of Churches, p. 146. Sect. 16. How in respect of the fabric of the Church, in distinction from that of the Ornaments thereof, p. 154. Sect. 34. Whether those of a chapel of Ease shall contribute to the Repairs of the Mother-Church, p. 146. Sect. 16. p. 152. Sect. 28. p. 153. Sect. 33. p. 156. Sect. 39 p. 152. Sect. 28. Whether the Land next adjoining ●o a churchyard shall Repair the Fences thereof, p. 166. Sect. 15.  
Residence in what Cases not required, p. 320. Sect. 9  
Resignation, what, p. 284. Sect. 3. Resignationbonds, whether good in Law, p. 189. Sect. 7. What words sufficient in Law to import a Resignation, p. 191. Sect. 13. To whom it may be made, p ibid. How and to whom the Resignation of a Donative may be made, p. 191. Sect. 14. Whether it may be made conditionally, p. 278. sect. 14. Whether the Church becomes void thereby, before the Bishop accepts it, p. 261. Sect. 17.  
Review, or the Court of Review, or Commission Ad Revidendum, p. 118. Sect. 15. The Ground thereof, p. 4. Sect. 5.  
Revocations in Law of the King's Presentation, p. 266. Sect. 31.  
Right of Advowson, how and for whom that Writ lies, p. 649. Sect. 22.  
Right of Tithes, Cognizable in the Ecclesiastical Court, p. 127. Sect. 42.  
Rogation-weck, whence so called, with the Original thereof, p. 130. Sect. 44.  
Roots of Coppice-wood grubbed up, whether Tithable, p 437.   

S.  
Sacrilege, what; whence so called, how many ways it may be committed; and the severe punishments thereof, p. 528, etc. The Sacrilegious were not anciently allowed the Sanctuary, p. 141. sect. 8.  
Saffron, what Tithes it pays, p. 438. To whom, whether as great Tithes to the Parson, or as small Tithes to the Vicar, p. ibid. p. 198. Sect. 8. p. 361. Sect. 21. p. 366. Sect. 32.  
Salary of a Chaplain, Triable in the Ecclesiastical Court, p. 198. Sect. 4.  
Salt, whether Tithable, p. 438.  
Simpson, whether the first Archbishop of York; by whom established, p. 14. Sect. 2.  
Sanctuary, the Law thereof anciently, p. 141. Sect. 8. Heretofore the foundation of Abjuration, ibid. Not allowed to Traitors nor Sacrilegious persons, p. 142. Sect. 8.  
Saxon Kings, their care for the Government of the Church of England, p. 97. Sect. 1. Their zeal for erecting and endowing of Churches, p. 208. Sect. 4. How severely they punished Adultery, p. 470. Sect. 4.  
Scotland, when the Bishops thereo revolted from the Archbishop of York, p. 14. Sect. 2.  
Seals of Office of Bishops, etc. how to be engraven and used, p. 27, 28. §. 5.  
Scutcheon or Banners taken out of the Church by the Parson, whether, and for whom Action lies in that Case, p. 61. Sect. 2.  
Seats in Churches, p. 137. Sect. 3. p. 138. Sect. 4. p. 142. Sect. 9 p. 154, 155. Sect. 36. p. 147. Sect. 18. p. 149. Sect. 22. How and by whom to be disposed of, p. 137. Sect. 3, 4. p. 149. Sect. 21. p. 150. Sect. 22. p. 154. Sect. 36. p. 155, 156. Sect. 38. They belong of Right to the Ordinary to dispose of, p. 138. Sect. 5. p. 140. Sect. 7. p. 142. Sect. 9 p. 158. Sect. ult. p. 157. Sect. 42. p. 151. Sect. 25. Whether the Ordinary hath any thing to do with Noble men's Seats in Churches, p. 151. Sect. 25. p. 157. Sect. 42. Custom may (as to the Body of the Church) six the power of disposing the Seats in the churchwardens, p. 151. Sect. 25. The grant of such a Seat to a Man and his Heirs, whether good in Law, p. 138. Sect. 4. To whom the chiefest Seat in the Chancel properly belongs, p. 141. Sect. 7. The Cognizance of Seats in Churches properly belongs to the Ecclesiastical Court, p. 157. Sect. 42. Whether he, who having Lands in the Parish, but living out of the Parish, be chargeable with the Repairs of the Seats of the Parish-Church. p. 150. Sect. 23.  
Sees, or Bishops Sees, whence so called, p. 347. Sect. 1.  
Sepulchers and Monuments in Churches or churchyards, how and where the defacing thereof is punishable, p. 142. Sect. 9  
Sheep, the Law in reference to the Tithe thereof, as also of their Pasture and their Wool, p. 438, 439. p. 464. p. 359, 360. Sect. 16, 17.  
Sidemen, what their Office is, p. 163. Sect. 6. Anciently called Synods-men, or Testes Synodales, p. ibid. Sect. 6. in the margin.  
Significavit, what that Writ aught to contain, p. 631. Sect. 10. p. 632. Sect. 12. p. 649. Sect. 19 p. 635. Sect. 21.  
Silva Caedua, the Law in reference to the Tithes thereof, p. 439, 440.  
Simon, the Monk of Walden, supposed to be the first Canonist in England, p. 132. Sect. 44.  
Simony, whence so called; a Description thereof, p. 537. Sect. 1. How many ways it may be committed, p. 539, 540. Sect. 5. p. 541, 542. Sect. 8. The penalty thereof, p. 537. Sect. 1. A bar in Law to the parson's demand of Tithes, p. 542. Sect. 10. p. 548. Sect. 17. p. 551. Sect. 26. p. p. 34. The difference in Law between Simoniacus and Simoniace promotus, p. 538. Sect. 2. p. 552. Sect. 27. In what Case Simoniacal Contracts are Cognizable in the Ecclesiastical Court, p. 120. Sect. 17.  
Slander, where Cognizable, p. 516. Sect. 4.  
Son, whether he may succeed the Father in an Ecclesiastical Living, p. 258. Sect. 10. p. 263. Sect. 20.  
Spoliation, what, and in what Case, and for whom the Writ of Spoliation lies, and where Cognizable, p. 439. p. 650. Sect. 24.  
Striking in the Church or Church-yard, how punished, p. 139. Sect. 6. An Indictment for Striking in St. Paul's churchyard, p. 155. Sect. 37.  
Stork, the History of that Jealous Bird, and his revenge on his Adulterous Mate, p. 475, 476. §. ult.  
Stubble of Corn, whether Tithable, p. 394.  
Subscription to the 39 Articles, what not good, p. 163. §. 8.  
Sufficiency or Insufficiency in an Ecclesiastical Officer, where Cognizable, p. 92. 93. §. 19, 20.  
Suffragan Bishops, anciently invested by the Ring, without the Staff, p. 25. §. 3. Their use and Office, p. 30, 31. §. 11.  
Suggestion for a Prohibition, in what Case it need not be proved within Six Months, p. 374. §. 51.  
Summoner, what; a description of his Office, p. 86, 87. §. 12. What the Canon enjoins concerning such, ibid. What the ancient Canon is touching Summoners, p. 88 §. 13. A Case at Common Law against a Summoner, p. ibid. Sect. 14.  
Superstitious Pictures in Church-windows, whether they may be pulled down without Licence of the Ordinary, p. 138. Sect. 5.  
Supremacy, or the King's Supremacy, a description thereof, p. 1. Sect. 1. Established by Statute Laws, p. 2, 3. Sect. 2. p. 7. Sect. 10. The Oath of Supremacy, the original and occasion thereof, p. 3, 4. Sect. 3. The Impugners thereof censured with Excommunication ipso facto, p. 4. Sect. 6. Asserted by King. Ed. 6. p. 7, 8. Sect. 13. Also by Queen Eliz. p. 8. Sect. 14.  
Synods, the several sorts and kinds thereof, p. 584. Sect. 1. Under what Archbishops of Canterbury they have been anciently held here in England, p. 590, 591. Sect. 7.  
Synodale, what; when and to whom payable, p. 67. Sect. 1. Whether it be due without the Act of Visiting, p. 68 Sect. 2. p. 69. Sect. 4. Originally paid in Victualibus, p. 68 Sect. 3. When and how changed into Money, ibid. The divers significations of the word Synodale, p. 71. Sect. 8. vid. Procurations.  
Synodies or Synodal, what; the ordinaries Right therein, p. 34. Sect. 17. p. 73. Sect. 9   

T.  
TARES, cut green, to feed cattle, whether Tithable, p. 440.  
Tartarians, their great Chastity; they held Adultery Capital, p. 471. Sect. 6.  
Tax for Church-Reparations, by whom to be made, p. 148. Sect. 20. p. 162. Sect. 4.  
Templars, discharged of Tithes, p. 402.  
Temporalties or Barony of a Bishop, how obtained, p. 27. Sect. 4. p. 28.  
Tenant in Common, in what case the same person may be said to be Tenant in Common with himself, p. 193. Sect. 16.  
Testis singularis, whether sufficient proof for payment of Tithes, p. 362. Sect. 22. vid. p. 378. Sect. 63. p. 430.  
Theanus, Archbishop of London in the time of K. Lucius, p. 17. Sect. 7. He was forced by the Infidel Hengist to fly into Cornwall and Wales, p. ibid. Sect. 5.  
Theruma, what it was, p. 351. Sect. 4.  
Timber-Trees, what shall be reputed such, as not Tithable, p. 441, 442. If wasted on a bishopric, it is Dilapidation, p. 176, 177. Sect. 8, 9  
Tithes, What, by and to whom payable; when, how, of what things; the manner of Right Tithing; what the Setting forth thereof is according to the Statute, and where cognizable, p. 347. etc. The several kinds of Tithes, p. 349. Sect. 1. p. 351. Sect. 4. whence the word [Tithes] derived, p. 347. Sect. 1. By whom the Church of England was therewith first endowed, ibid. They are now at Common Law Temporal Inheritances, p. 353. Sect. 6, 7. Whether they may be leased or released without Deed, p. 358. Sect. 11. p. 363. Sect. 27. Composition thereof for life, whether good without Deed, p. 372. Sect. 45. Whether so, if but for one year, or more, p. 377. Sect. 61. p. 382. s. 81. The Right of Tithes in contest between Parson and Vicar, is properly cognizable in the Ecclesiastical Court, p. 127. s. 42. p. 369. Sect. 41. p. 380. Sect. 73. What Tithes are properly due to the Vicar, p. 199. Sect. 8. Tithes not set forth, Actions thereon, p. 376. Sect. 55. p. 378. Sect. 65. Tithes to two by halves, whether the Parishioner must so set them out, p. 362. Sect. 24. Tithes are of Ecclesiastical Cognizance, p. 357. Sect. 9 Objections against Tithes answered, p. 350, and 351. Sect. 3. Whether Tithes are grantable by Copy, p. 431.  
Tobacco, what Tithes that pays, p. 366. Sect. 32.  
Tombs and sepulchers defaced, where punishable, p. 142. Sect. 9  
Trades, whether gain gotten thereby be Tithable, and how, p. 442.  
Transaction, how it differs from Composition. p. ibid.  
Translation of Bishops, needs no new Consecration, p. 49. Sect. 8. p. 27. Sect. 4. p. 29. Sect. 7.  
Trebel damages, where and in what Case suable, p. 442.  
Trees, what, Tithable or not, p. 442, etc. p. 377. Sect. 62. To whom the Trees growing in the churchyard do belong, p. 150. Sect. 22. If cut down, to whom the Action belongs, p. 137. Sect. 3. p. 153. Sect. 32.  
Turkeys, whether Tithable, p. 444.  
Turfs, whether Tithable, ibid.  
tile-stones, and Brick- tile, whether Tithable, p. ibid.   

V  
VALUE of a Benefice, in Case of Plurality, whether to be computed according to the King's Books, or the very Annual Value thereof, p. 295. Sect. 5. p. 299. Sect. 12. p. 303. Sect. 21.  
Venison, whether Tithable, p. 361. Sect. 21. p. 454.  
Vestry, whence that word is derived, p. 162. Sect. 5.  
Vetches, whether Tithable, or not, p. 454.  
Vicar, what; the original thereof p. 186. Sect. 1. Where and in what Case he may sue for an increase of Maintenance, p. 199. Sect. 10, 11.  
Vicarage, how created, p. 198. Sect. 6. How it differs from a Parsonage, p. 197. Sect. 2. In whom the Freehold of the Glebe there-of is, ibid., Whether a Vicarage endowed may be appropriated, and to who, p. 197. Sect. 3. Who properly is Patron thereof, whether the Parson or the parson's Patron, p. 199. Sect. 9 Whether a Vicarage Perpetual may be dissolved, p. 202. Sect. 17. In what sense a Vicarage may be compared to a Commendam, p. 203. Sect. 18. In what case a Vicarage may determine, p. 199. Sect. 11. What amounts to an union of the Parsonage and Vicarage, p. 199. Sect. 11.  
Vicario deliberando occasione cujusdam Recognitionis, what that Writ imports, p. 648. Sect. 15.  
Vi Laica removenda, in what case that Writ lies, p. 646. Sect. 5.  
Vine-Trees, or Vines, what Tithes they yield, p. 454.  
Violent hands laid on one in the Church or Church-yard, what the penalty thereof, p. 139, 140. Sect. 6. p. 155. Sect. 37. p. 89, 90. Sect. 16.  
Visitation, the power of the Ordinary therein, p. 34. Sect. 18. p. 89, 90. Sect. 16. Whether an Archdeacon hath power of Visitation of Common Right, p. 63. Sect. 7. What number of Attendants allowed by Law to Visitors, p. 71. Sect. 7.  
Underwoods', whether Tithable or not, p. 455, 456.  
Union of Churches, what, and by whom to be made, p. 169. Sect. 1. What amounts to an Union of a Parsonage and Vicarage, p. 199. Sect. 11.  
Unity of Possession, the Law thereof in reference to Tithes; also the properties thereof, p. 383, 454.  
Vodinus Archbishop of London, slain by the Tyrant Vortiger, p. 16. Sect. 5.  
Vortiger the Tyrant, burnt in a Castle besieged by Aurelius Ambrose, p. 16. Sect. 5. He surrendered Kent, Suffolk, and Norfolk to the Infidel Hengist, p. ibid.  
Usurpation of the Pope, how and when it originally began here in England, and the progress thereof after the Conquest, p. 97, 98. Sect. 1. p. 111. Sect. 8. p. 130, etc. Sect. 44.  
Usurper, who properly is such, p. 205. Sect. 1. Whether he may gain possession of an Advowson from the Crown, p. 215. Sect. 18. p. 218. Sect. 22. vid. p. 219. Sect. 24. In what case an Usurpation puts the very Patron out of possession, p. 272. Sect. 5. Three Writs at Common Law against an Usurper, and what they are, p. 205. Sect. 1.   

W  
WAges of Servants, whether Tithable, p. 457.  
Wall of the churchyard, by whom to be repaired, p. 144. Sect. 11.  
Wales, when first subject to the archbishopric of Canterbury, p. 17. Sect. 6.  
Waste Pastures, in what case Tithable or not, p. 457.  
Wax, or Bees-Wax, how to be Tithed, p. 457.  
Way obstructed for carrying of Tithes, Cognizable in the Ecclesiastical Jurisdiction, p. 382. Sect. 82. vid. p. 394.  
Weapons drawn in the Church or Church-yard, how punished, p. 139. Sect. 6. Indictments thereon discharged, and why, p. 149. Sect. 22. p. 155. sect. 37.  
Wield or Woad for dyer's, to whom the Tithe of that Dying Plant belongs, whether as Great Tithe to the Parson, or as Small Tithe to the Vicar, p. 366. sect. 32. p. 381. s. 77. p. 457, 458.  
Westminster-Abbey, by whom Founded, p. 328. sect. 5. When the Revenues thereof were first vested in a Dean and Chapter of the Collegiate Church thereof, p. 15. s. 3. How it became Originally the place of Consecration and Coronation of the Kings of England, p. 6. Sect. 8.  
Whitson-Farthings, what, and when paid, p. 73. Sect. 10.  
Whore, whether Actionable, and where; to call one so, p. 519. Sect. 9  
Willows, whether Tithable, p. 457.  
Witness, one single Witness disallowed in the Ecclesiastical Court for sufficient proof; whether Prohibition lies in that case, p. 113, 114. Sect. 11. p. 115. Sect. 12. p. 116. Sect. 12. p. 123. Sect. 26. p. 128. Sect. 43.  
Witch, or the Son of a Witch, whether those words are Actionable, p. 524. Sect. 24.  
Wolsey Cardinal, impower'd by the Pope's Bull, to retain the archbishopric of York, and the Abbey of St. Alban in Commendam, p. 111. Sect. 8.  
Wolstan Bishop of Worcester, his Resolute Answer to King William the Conqueror, p. 97. Sect. 1.  
Wood, the Law in reference to the Tithe thereof, p. 458, to 462. Computed among the Predial and Great Tithes, by whom payable, whether by the Buyer or the Seller; whether due for Fuel spent in the Parishioners house, p. ibid. In what sense it may be either Great or Small Tithes, p. 365, 366. Sect. 32. Whether Wood Tithable at the Common Law, p. 372. Sect. 46. Wood for Hedging and Firing, whether Tithable, p. 369, 370. Sect. 42. In what case the Vicar may have the Tithe thereof, p. 381. sect. 79.  
Wool, the Law in reference to the Tithes thereof, p. 198. sect. 3. p. 359. sect. 16. p. 366. sect. 32. Of Sheep pastured in divers Parishes, p. 462, etc. Of Rotten Sheep, whether Tithable, p. 359. sect. 15.  
Worcester-Church, anciently a Priory, p. 74. sect. 10.  
Words of Contention in the Church or Church-yard, how punished, p. 139. sect. 6.  
Writ of Right of Advowson, for whom it lies, p. 214, 215. sect. 17. The Writ De Haeretico Comburendo, when taken away and abolished, p. ult. sect. ult.   

Y  
YOrk, the Original of that Metropolitan See, p. 14. sect. 2. It anciently had a Metropolitan Jurisdiction over all the Bishops in Scotland, p. 18. sect. 9    

ERRATA.  
PAg. 25. lin. 25. read Potestatem, p. 35. l. 2. Archidiaconum, p. 200. l. 37. Provenues, p. 203. l. 7. Vicaria, p. 205. l. 5. be with the Cure, p. 209. l. 3. An. 1505, p. 285. l. 17. to his Father by the true, p. 293. l. 31. too late, p. 403. l. 38. Mepham's Canon, p. 448. l. 23. to the Parson, p. 470. l. ult. Adulterum, p. 471. l. 7. Hoel Dha, p. 439. l. 15. Cognatio, p. 497. l. 11. Adulterous Wife, p. 501. l. 7. Thore, p. 503. l. 6. Viro, p. 530. l. 40. Crown, p. 543. l. 18. Pardon, l. 40. Doctors.   

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