English Puritan & Reformed

Abridgment of Ecclesiastical Laws

John Godolphin (1617-1678) · 342,258 words · 1521 min

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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 Bithynia, An. 325. to suppress Arianism, were British Bishops present, as Athanasius and Hilary Bishop of Poitiers affirm. At the Council of Sardis in Thracia convened by Constanitus and Constance, Sons to Constantine the Great, the British Bishops were likewise present, when the Arians 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 Forein 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, 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 Cliffe in Kent; the acts of which Synod were 31 Canons, among which is was ( inter alia ) Ordain'd, 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 Withred King of Kent, and Bertuald Archbishop of Britain, wherein many things were concluded in favor of the Church. About the same time a Council was held at Berghamsteed by the said Withred King of Kent; at which Council Bishop Wilfrid was restored to York, whence he departed for Rome, upon the endeavors 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 rivited (thats 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 West-Saxons, 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. 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 Alfred had made before. Many Councils were Conven'd 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. Council. p. 405. During the Reign of King Edgar, Hoel Dha held a National Council for all Wales at Tyquin, which was wholly in favor 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, &c. 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 molded. Under the Reign of King Henry the Second (who disclaimed the Popes authority, refused to pay Peter-pence, 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, entitling 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, Non-Residence, 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 ease ab omnibus servari, &c. 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 Kings 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 Kings 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 Ordain'd, 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 Popes 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, 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 Kings Writ) unless the same Clergy may have the Kings most Royal assent and License to make, promise and execute such Canons, Constitutions and Ordinances Provincial, or Synodical, upon pain of everyone 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, 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 inquired 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 favor of parties to be determined, in matters of Faith by Canons, in cases of Practice by Presidents, in matters of Discipline by Decrees and Constitutions. Of these Councils he observes some to have been Judaical, others Apostolical, others Oecumenical, 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 anything, as the matter required. Such he observes to have been at Shechem under Joshua 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 Zerubbabel 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 Matthias 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 Oecumenical or General Councils, some were Greek or Eastern, others were Latin or Western. The more Famous of the Oecumenical 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 Oecumenical 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 Milain: 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, German, 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. verse. 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 Seizin 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. Brompton. 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 ill dentibus stridere, spumas jacere, caput rotare incipit. Qui tamen à Wolstano sanatus, cum Pacem adhuc recusaret, iterum & tertio est arreptus simili modo, quousque ex cord 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 premisses, 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 Edgars 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. Austin'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 rose also out of his grave, and walked out of the Church at St. Austin'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. Chron. dict. Brompton. 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 Carkases of brute Beasts, a President 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 Eli touching a Manor, should be taken out of their Graves, and cast out of the Church-yard. This is much worse than to be denied the honor of a Christian burial, which by the Council at Rome, An. 1180. was the punishment of such Lay-persons 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 Ordain'd, 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 President 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, and burnt 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, 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 repented. Old. Such as are Anathematiz'd and under the greater Excommunication, are as it were expel'd out of all Human 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 Abridgment you have some mention made of the Statute of Circumspecte 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 your selves circumspectly in all matters concerning the Bishop 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 Church-yards 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 Kings 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 Circumspecte 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, Dammages 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 Abridgment.

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 Conge d'Eslire, Election, and Confirmation, 43
6. Of Consecration, 46
7. Of Deans and Chapters, 51
8. Of Archdeacons. 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 Church-yards, 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 Cession, 282
26. Of Pluralities, 291
27. Of Deprivation, 305
28. Of Incumbents; also of Residence and Non-Residence, 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 Circumspecte agatis, 639
44. Of several Writs at Common Law, pertinent to this Subject, 643

AN ABRIDGEMENT OF Ecclesiastical LAWS.

CHAP. I.

Of the Kings Supremacy.

1. A Description thereof, or what it is.
2. The Establishment thereof by Statute Laws.
3. The Oath of the Kings 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, &c.
6. Impugners of the Kings 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 Popes Authority.
9. The King is Lex viva, in some cases may dispence with some Canons:
10. Provisoes of some Statutes in right of the Kings 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.) T His Ecclesiastical Abridgment begins 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, 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 Emperors 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 Forein 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 owe 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, were Four times a year to preach in vindication of the Kings 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 Forein 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 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 Forein 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 forever 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 Honors, Dignities, Prebeminencies, Jurisdictions, &c. to the said dignity of Supreme Head belonging, &c. By which Style, Title and Dignity the King hath all Ecclesiastical Jurisdiction whatever ; 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 . 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 Kings Supremacy, and re-establishing the same; it doth likewise not only abolish all Forreign Authority, but also annex the Ecclesiastical Jurisdiction to the Crown of this Realm, 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 Kings 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 Forreign Prince. Person, Prelate, State or Potentate hath or ought to have any Jurisdiction, power, superiority, preeminence or authority, Ecclesiastical or Spiritual, within this Realm; And therefore doth utterly renounce and forsake all Forreign Jurisdictions, powers, superiorities and authorities; and doth promise that from henceforth be shall bear Faith and true Allegiance to the Kings Majesty, his Heirs and lawful Successors, and to his power shall assist and defend all Jurisdictions, privileges, preheminencies and authorities granted or belonging to the Kings 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 Queens 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 Forreign Authority, as likewise what other persons than the fore-mentioned 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 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 : Yea the Pope himself, Eleutherius, An. 169. styled King Lueius, Dei Vicarius in Regno suo

(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 Kings 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 re-united to it by several Statutes as aforesaid . 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 ; 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 communicate in Causis Ecclesiasticis (vigore Statuti in hujusmodi Casu editi) cumulative, non privitive .

By the Second Canon of the Ecclesiastical Constitutions of the Church of England it is ordained, That whoever shall affirm, that the Kings 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 . 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 men's Regis, quae est Juris. The Kings 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 . Nor is the Kings immediate power restrained by such Statutes as authorize inferior persons: The Lord Chief Justice Hobart asserts, That although the Stat. of 25 H. 8. 21. doth say, That all Dispensations, &c. 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 . By the Eighth Canon Concilii Calchuthensis held under Pope Adrian the First, 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 Presidents 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, 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 Presidents and Records of very great Antiquity, which were received and observed within their own Territories without any Ratification from any Forreign power. One instance (among many) may be given of the Ecclesiastical Laws of Alfred Mag. Regis Anglorum, An. 887. This they did de 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 Kings Canons, not the Bishops; En hujus Concilii Canones, 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, 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 Forreign 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 it self, 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, &c. Intonuit. And in another place, Episcopus in quibusdam Casibus Dispensare potest contra Canones. Const. Otho. de Concu. Cler. gl. ver. Meritis.

10. The Laws and Statutes of this Realm have been tender of the Kings Supremacy ever since the Forreign 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 Kings Majesty's Supremacy in Ecclesiastical matters and affairs. And in the Stat. of 22 Car. 2. cap. 1. there is a Proviso, That, not anything 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 Conven'd without his Majesty's Writ for that end and purpose: so being Conven'd, 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 Kings leave; 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 Kings License therein, but he would not obey 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 ought to be assembled only by the Kings Writ. 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 Kings Majesty ministereth unto his Clergy and their Successors, and to all his loving Subjects; straitly 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, 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 inquired 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 color 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 Kings Majesty's power, authority and preeminence, 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, set-forth, maintain or defend the authority, jurisdiction or power of the Bishop of Rome, or of his See heretofore claimed and usurped, or by any pretence, obstinately or maliciously, invented anything 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, &c. and that the Bishop of Rome hath no Jurisdiction in this Realm. 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 Queens 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 ought to be subject to any Forreign 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 Land. 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, Archdeacons, Parsons, Vicars, and all other Ecclesiastical persons, shall faithfully keep and observe, &c. all and singular Laws and Statutes made for the restoring to the Crown, the ancient Jurisdiction over the State Ecclesiastical, and abolishing of all Forreign power repugnant to the same, &c. 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, &c. 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, when the Suit is in the Archbishops 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. glo. mund. p. 5. Consid. 24. The King of England, &c. 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 ; he might make a Grant of a Church to a man to hold to his own proper use; he might not only exempt any Ecclesiastical person out of the Jurisdiction of the Ordinary, 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; he might dispense with one not lawfully born, to be a Priest, 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, Appeals to Rome, holding Plea of Spiritual things thence arising , Excommunications by his Bulls , 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 color (so the Author expresses it) of denying the Kings Supremacy; and their rich Abbeys seized on, as Confiscations to the use of the King : 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 Queens 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 ought to be understood, That the Kingly or Regal Office of the Realm, and all • Dignities, Prerogatives Royal, Power, Preheminences, Privileges, Authorities and Jurisdictions thereunto annexed, united or belonging, being invested either in Male or Female, are, be, and ought 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, anything as King, &c. 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 all • 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 e • ercised 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 recognizing the Queens 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 Forreign Power shall, or ought to have any Superiority over them. Which Declaration published in the Queens 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 Queens 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 acknowledgment and defense 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 Authorize, &c. 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 Preheminencies 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 reformed, ordered, redressed, corrected, restrained or amended to the pleasure of Almighty God, &c. This was the Foundation of the High-Commission Court, and from hence issued that Commission, by which the Queens 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, 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 forever; and so the Chair thereof became originally fixed in that City of Canterbury; Cantuarienses Archiepiscopi, Dorovernenses antiquitus dicti sunt: quia totius Anglicanae Ecclesiae Primates & Metropolitani 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 ; 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 Kings 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 Lord's 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 Judgments, &c. of Parliament, it is said, The Lord's 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 . The Archbishop of Canterbury, as he hath the Precedency of all the Nobility, so also of all the great Officers of State. 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 . 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 . The Archbishop whereof hath also a peculiar Jurisdiction in thirteen Parishes within the City of London, and in other Dioceses, &c. 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 scituate 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 Vice-Chancellor 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 Sampson 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 . 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 Nevill 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 . Of this Province of York are the Bishoprics of Duresme, Chester, Carlisle, and the Isle of Man, who write 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 favor each of these Opinions, saying in one place, that the Archbishop as President 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 verse. fin. Metropolitanus & Archiepiscopus idem sunt. Sed Metropolitanus nomen trahit à numero Ecclesiarum, viz. à [metro] mensura, & [polis] Civitas. Otho glo. 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 Eli, though it hath a Bishop and a Cathedral Church. 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. 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 Pleadings of some Cases, by styling it the Cathedral, for Collegiate Church of Westminster. Cassanaeus, 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, 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 , and therein confirmed by the Divines which Eleutherius (who became Pope, An 177.) sent into Britain for that end and purpose ; The said King being by them baptized, 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 Urbs Legionum, Cambria . 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. Origen's, qui proximis fuit post Apostolos seculis, testator Britanniam in Christianam consentire Religionem. Orig. Hom. 4. in Ezech. Lucius, Rex Britanniae, An. 179. Baptizatus. Ab Eleutherio, Ponti • ice 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. Austin'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 Dioclesians Perfecution (which though the Tenth and last, yet the first which the Britain's felt) Christianity flourished in this Island, which • y that Persecution was almost extirpated out of the Land, till Constantine the Great wore the Imperial Crown, 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 Troys 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 . And now the Christian Religion flourished again till the time of the usurping Tyrant Vortiger, who after he had slain Vodinus Archbishop of London , 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 ; whom Ethelbert King of Kent kindly received, and seated him (as aforesaid) in a Mansion in Canterbury, the Metropolis of his Kingdom , 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 favor and bounty of the said King Ethelbert, 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, Uncle toking Arthur ⁿ , 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 Sampson 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 forever 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, as at this day .

(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. Peters 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 Popes 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 Popes Legate, but Primate and Metropolitan of all England; at which time Tho. Cranmer, Fellow of Jesus -College in Cambridge, who pronounced the Divorce from Queen Katharine of Spain, upon his advice given the King to leave the Court of Rome, and to require the Opinions of Learned Divines, being then in Germany, procured such favor 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 .

(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 ; 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 , 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 Glovers 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 . 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. Andrew's, 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 Honor 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 . 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, 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 .

(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 . 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 . 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 Archbishops Consistory, shall originally Cite or Summon any person which dwelleth not within the particular Diocese or Peculiar of the said Archbishop, &c. without the License 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. Martyn 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 Popes 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 Mainz, &c. (3.) A Legate given, and these have Authority by special Commission from the Pope . Likewise, in the Case of Jones against Boyer, C. B, it was also said by Dr. Martyn, That the Archbishop hath Ordinary▪ Jurisdiction in all the Dioceses of his Province, and that this is the cause that he may Visit .

(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 and Orbis Britannici Pontifex, insomuch that Matters recorded in Ecclesiastical Affairs did run thus, viz. Anno Pontificatus Nostri primo, secundo, &c. 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 Inthroned, 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 Kings 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 Kings Writ, to him ever directed; is chief Moderator in the Synods and Convocations; he Vi • its 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, &c. 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 Conge 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 Endeavors 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, touching a Lease made by one Bishop during the life of another of the same Diocese in Ireland.

(1.) BISHOP, Episcopus, from 〈 in non-Latin alphabet 〉 , supra, and 〈 in non-Latin alphabet 〉 , 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 . 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 , 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 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 .

(2.) Under this Name or Appellation of Bishops are contained, Bishops, Primates, Metropolitans, Patriarchs, and Summus Pontifex. Dist. 21. c. 1. And the Presbyters also, C. Legimus, §. 1. Dist. 93. Spec. de Instr. Edit. Sect. 14. verse. de Episcopo, and for such commonly used and taken in the New Testament : l. 14. c. de Episc. & Cler. In some Acts of Parliament we find the Bishop to be called Ordinary ; 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 . The word [ Ordinary ] doth chiefly 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 Bishops 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 Doctors Hoods upon the Shouldiers, with Four Crosses woven into it, &c. for the Form and Colours whereof vid. Antiq. Brit. Eccles. fo. 1. This Pallium Episcopale is the Arms belonging to the See of Canterbury : vid. Cassan. de glo. 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, &c. Tibi tradimus Pallium de Corpore beati Petri sumptum, plenitudinem videlicet Pontificalis Officii, &c. , 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 ; 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 Conge 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 . In Ancient times the King gave the Bishoprics, and then afterwards gave leave to the Chapters to choose them, as aforesaid . The learned Serjeant Roll, in that part of his Abridgment 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 . Thus the Election of Bishops by Deans and Chapters began by the grant of the King; but the Grant was to Elect after License 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. . 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 . But King H. 1. made a Law against Reservations of Ecclesiastical Possessions upon Vacancies . 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 ; 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 .

(4.) To the Creation of Bishops are requisite, Election, Confirmation, Consecration, and Investiture. Upon the vavancy of a See the King grants his License 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 License or Letters Missive; upon failure whereof they run the danger of a Praemunire Or if above twelve days after their receipt thereof the Election be defer'd, 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 ; 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 chiefly in these Eight things, viz. 1. Nomination, 2. Conge d'Eslire, 3. Election, 4. Royal Assent, 5. Confirmation, 6. Creation, 7. Consecration, 8. Installation. Vid. Grendon 's Case in Plowd. & Trin. 17 Jac. B. R. Sobrean & Teige verse. Kevan, Roll. Rep. par. 2. . 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 Conge 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 Archbishops 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 Kings 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 Kings Supremacy, &c. Then the Archdeacon, with the Canons, &c. 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, &c. Then after the Divine Service proper for the occasion, the Bishop being conducted into the Chapter-house, and there placed on a high Seat, the Archdeacon and all the Prebends, &c. of the Church acknowledge Canonical Obedience to him. And the Public Notary, by the Archdeacons 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 Kings 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 Nag • head 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 Forreign 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 & Episcopy, sed eorum Officiales . And all Bishops, Ordinaries, Archdcacons, and all others exercising any Ecclesiastical Jurisdiction, ought to have the Kings Arms engraven on their Seal of Office; but the Archbishop of Canterbury may use his own Seal . And all Process Ecclesiastical, and Certificates into any Court of Record, are to be in the Kings name, Teste the Bishop . 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 .

(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 License, 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 Kings 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 Bishops Oath of Fealty to the Kings Majesty) been first signified to the Archbishop by the King, 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 . But after his Consecration, Investiture, and Instalment, he is qualified to sue for his Temporalties out of the Kings hands by the Writ de Restitutione Temporalium . And yet it seems the Temporalties are not de 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 . But if during the Vacation of Archbishoprics, or Bishoprics, and while their Temporalties are in the Kings 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 . 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 Conge 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 Chance • y, 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. . Also the Law in general is positive therein, That in the making of all Bishops, it shall be by Election and the Kings 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 Certifie the same, 8 Rep. 89. And then the power of the Guardian of the Spiritualties doth cease . But after Election and Confirmation he hath Potestatem. Ordinationis, for then he may Consecrate, confer Orders, &c. 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 Split, when he was here, confer'd 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 . 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, &c. 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 .

(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 . These were chiefly 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 Bishops 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: 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 .

(13.) A Bishop, if he celebrate Divine Service in any Church of his Diocese, may require the Offerings of that day . 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 . He may commit Administration, where Executors being called, refuse to prove the Will . He hath power of distribution and disposing of Seats, and charges of Repairs of the Churches within his Diocese . 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 . He may License Physicians, Surgeons, Schoolmasters, and Midwives . 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 . He may have Six Chaplains, and every Archbishop may have Eight Chaplains . 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 , 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 Universales in suis Jurisdictionibus, sed sunt sub eo alii Ordinarii, hi 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 .

(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 interested, 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 lett 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 Judgment, 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 .

(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 . 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 offense, although he dwell out of the Diocese: by Coke, Warburton, and Winch . 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 . So is a Dean de mero jure, for he is Spiritual . The Ordinary hath also power of Correction of a Parson . And every Hospital, be it Lay or Spiritual, is Visitable . By the ancient Law of the Realm the King hath power to Visit, reform and correct all Abuses and Enormities in the Church . Nor are the Kings Donatives visitable by the Ordinary ; but properly by the Lord Chancellor . And the King may grant a Special Commission to that purpose . But as to Hospitals, if they be Spiritual, the Ordinary shall visit them; if they be Lay-Hospitals, the Patron . 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, Archdeacons, 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 above-mentioned, 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 Queens 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. Council. 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 & Urbes. 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, & tunc mittat Archidiaconum, &c. Ab. Sic. super 2. 1. de Offic. Archid. c. ut Archidiaconus 10. q. 1. c. Decrevimus, &c. Episcopum.

(19.) Every Bishop hath his Cathedral and Council, and the Council and Bishop there decide matters of Controversy; the Prebends have their names from the affording of help to the Bishop. If any Clerk, 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 Preeminence. Episcopus Londinensis (says an Ancient Record) specially 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 President hath been shown 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 Honor, Three Kings, viz. of England, Scotland, and South-Wales, in the year 1200. did contribute their Royal shoulders for the conveyance of the deceased Corps 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 Fathers 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 Episcopy, in Regali quidem Palatio cum Regni Magnatibus, in Comitatu una cum Comite, in Turno cum Vice-comite, & 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, (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, 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 practiced. 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, &c. In which it was ordained, That Bishops should be made by the Kings 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 Kings 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 License. The Tenour 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, &c. We therefore give and grant to thee full power and License, 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 German Emperors, 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: As also to preside in Convocations, or Provincial Synods, during the vacancy of the See, or in the necessary absence of the Metropolitan.

(23.) 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 Instal 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 Kings hands. Afterwards in the life of J. B. Queen Mary elected J. T. to be Bishop there: who was likewis • 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 de 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 Conge 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, &c. should be good; but not such voluntary Acts as tended to the depauperation of the Successor.

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. IV.

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 . Dr. Cowell 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, &c. by the Canon Law pertains to the Appointment of the Dean and Chapter. c. ad abolend. Extr. Ne seed 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 Readings.) divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm. Cowell 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 . And therefore if a man Recover, and have Judgment 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, Sede vacante, 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 . A Guardian of the Spiritualties may admit a Clerk, but he cannot confirm a Lease .

(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, &c. 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, &c. 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 License, Dispensation, Faculty, &c. 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 License, Dispensation, &c. 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, Authorizing 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 enjoin'd 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 . 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, &c. 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 .

In the Case of Grange against Denny it was said by Coke, That of common Right, by the Common Law, the Dean and Chapter, Sede vacante, 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 Doddridge, 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 vacante of any Bishop within his Province he himself is Guardian of the Spiritualties, of all the Bishoprics within his Province: but Sede vacante 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 Serjeant Roll in his Abridgment doth acquaint us out of the Ancient Books, That a Guardian of the Spiritualties may Admit and Institute a Clerk presented to him . That the King did present to the Guardian of the Spiritualties of the Archbishopric of Dublin (Sede vacante ) for a Church in Ireland . That the Guardian of the Spiritualties may try Bastardy . 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 . 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 . But in the time of the Vacancy of the Bishop, the Archbishop is Guardian of the Spiritualties, and not the Dean and Chapter .

CHAP. V.

Of Conge d'Eslire, Election, and Confirmation.

1. What Conge d'Eslire signifies; the Original thereof.
2. To whom it is directed, and the manner of Proceedings 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 Bishops Elect beyond Sea, far different from this in England.
6. The Law and Practice in France, touching the making of Bishops.

(1.) COnge d'Eslire, in French, [ Leave to Choose ] is the Kings permission to a Dean and Chapter to choose a Bishop in the time of Vacancy . And time was when this Venia Eligendi was also the permission Royal to an Abby or Priory of his own Foundation to choose their Abbot or Prior . But we now understand it under no other signification than as his Majesty's 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 Conge d'Eslire, the Modern Pens refer themselves to Mr. Guin in the Preface to his Readings, 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 Conge d'Eslire, that is, Leave or License to proceed to Election, and then after the Election to crave the Royal Assent, &c. 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 Conge 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 Conge 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 Kings License and Letters Missive, according to his Majesty's nomination and pleasure, contained in such Letters Missive, in pursuance of such License 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 Deanry, 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 Cession thereof . And it hath been adjudged, that a Commendam retinere made to such a person of such a Parsonage, Deanry, 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 .

(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 . Note, That before an Archbishop or other Bishop is Confirmed, Consecrated, or Invested, he must take the Oath of Fealty unto the Kings 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 , and a Writ for Admission of a Clerk to a Benefice, awarded Episcopo Electo & Confirmato, hath been held to be good . Likewise the King may by his Letters Patents, after such Confirmation and before Consecration, grant unto such Bishop his Temporalties , 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. Ut cujus Electionis Episcopalis Confirmatio postulatur, inter caetera super quibus Inquisitio & Examinatio praecedere debet Secundum Canonum Instituta: 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 Bishops death it is voidable, unless it be corroborated and ratified by the Confirmation of the Dean and Chapter . 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 Majesty's 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 practiced 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 ; if a Bishopric be there void, be it quomodocunque, whether by Cession 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, Nam jus sit ad Papam dev • lutum: nec poterit purgare moram . 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 .

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 chiefly refers either to Bishops or Churches: The Civil as well as Canon Law takes notice of both . It signifies a Dedication to God; Justinian in his Novel's makes use of the word, thereby signifying an Imposition of hands : For in this manner (says that Book of great Antiquity, entitled 〈 in non-Latin alphabet 〉 ) 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 . 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 , as an Exception to the Sacerdotal practice, and as a Consecrating them to the Government; in relation whereto a King is a Mixt 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 ; yet the High Priest had a Consecration peculiar to himself, which was by the pouring out the precious Ointment upon his head . 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, in the year 816. under Wulfred Archbishop of Canterbury, and President 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 .

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 Symbole of our Salvation, viz. the venerable and truly precioas Rood . 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 though 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 〈 in non-Latin alphabet 〉 , &c. 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 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 Ground-work or Foundation with his Iacense Circular-wise, then the Singing-men say a kind of Collect for the Saint to whose Name the Church is Dedicated, and some other Services as the Chaunter 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 Alfred 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 Emperors Novel, but also more peculiarly acknowledged by the 〈 in non-Latin alphabet 〉 , 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 〈 in non-Latin alphabet 〉 , 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 〈 in non-Latin alphabet 〉 . 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

(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 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 God-father, and one Godmother at Baptism

(8.) In a Case of Translation the Bishop need not to be Consecrated de Novo, as in case of Creation 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 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 Conge 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 then 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;