Abridgment of Ecclesiastical Laws
At Mainz, An. 1075. the Bishop thereof (being commanded by Pope Gregory 7 th. to separate the Priests from their Wives) convened a Synod, but the married Priests so terrified the Bishop of Mainz, and the Bishop of Chur the Popes Nuncio, that this Council also, as the former, was dissolved, and nothing done.
At Wormes the Emperor assembled all the Bishops of his Kingdom in order to a deposing of Pope Gregory 7 th. otherwise called Hildebrand, accused of Perjury, Ambition, Avarice, and Pride. The determination of this Council was, That he should be removed from the Popedom, which was Subscribed by all the Bishops present at the Council.
At Friburgh, An. 1076. another Council was assembled, wherein the Princes of Saxony and Sweve appeared in favor of the See of Rome against the Emperor Henry the Fourth.
At Rome by order of the Pope a Council was assembled in Lent, wherein the Emperor Henry 4 th was not only Anathematiz'd, but also denuded (as far as in them lay) of his Imperial Dignity.
At Brixia in the year 1080. the Emperor Henry 4 th assembled 30 Bishops of Germany and Italy, together with many Princes of the Empire: All which consented, That Hildebrand should be deposed from the Popedom, and Gilbertus Bishop of Ravenna placed in his room.
At Rome, An. 1081. the Emperor Henry 4 th. with the Advice of the Roman Senate appointed a Council to be Assembled, wherein Hildebrand was deposed, and Gilbertus, otherwise Wigbertus, to succeed in the Papacy. This Council was called by the said Emperor soon after he had besieged and taken the City of Rome.
At Beneventum a Council was Assembled by Pope Victor the Third, who before his Election to the Papacy was named Desiderius, Abbot in Cassinates, chosen by the Romans, not regarding Gilbertus whom the Emperor had made Pope. In this Council Victor the Third Anathematized Gilbertus Bishop of Ravenna.
At Clermont in Overnie of France in the year 1095. Urbanus the Second convened a great Assembly, wherein it was Ordained, That an Army should be raised for support of the distressed Christians in Jerusalem, and recovery of the Holy Land out of the hands of the Infidels: The which was likewise Ordained in the Council of Placentia, and other Councils of the lesser concern here omitted for Brevities sake. In the next, viz. the 12 th Century, there were above 115 Councils: To instance in the most material of them may suffice for this Abridgment.
At Paris Urbanus the Second, at the complaint of Alexius Emperor of Constantinople against the rage of the Turks, assembled a Council of most Nations, and was present himself thereat. In this Council were appointed 100000 Men out of the Western Kingdoms for the Holy Land.
At Florence Pope Paschalis the Second convened a Council, wherein the Bishop of Florence was called to an account for Preaching openly, That Antichrist was already come; for which he was sharply rebuked, and commanded, That for time to come he should utter no such Doctrine.
At London in the year 1102. in the Third year of the Reign of Hen. 1. King of England. Anselmus Archbishop of Canterbury assembled a Council, for prohibiting the Marriages of Priests; and the year following was constrained to convene another Council at St. Paul's in London, to make Constitutions for the punishment of such as defiled themselves with Sodomitical Lusts.
At Mainz, An. 1106. a great Council was assembled against the Emperor Henry 4. whom they condemned of Heresy, which was Simony, because he would not resign the Right of Investure of Bishops into the Popes hands, and having Excommunicated him, took off his Imperial Crown.
At Troyes in France in the year 1107. Pope Paschalis the Second convened a Council, which treated concerning the Investure of Bishops, not to be in the power of Lay-persons.
At Triburia in Friburgh in the year 1119. the Bishops of Germany assembled concerning the Investure of Bishops, and in opposition to the Emperor Henry the Fifth.
At Senon a Council was called against Abelardus by reason of his Heresy: He was also accounted an Heretic in the Council of So • sson.
The First Four Lateran Councils are comprehend under one and the same Title, as more favoring the Roman Dissensions than the Doctrine and Discipline of the Church: The first under Henry the Fifth, and Calixtus the Second, which had 300 (or according to Bellarmine, 900) Bishops, and 22 Canons. In this Council Burdinus the Anti-Pope was laid aside, the vestures with the Ring and Staff were taken from the Emperor and given to the Pope; who absolved the Emperor and gave him power of electing German Bishops. In this Council there were appointed Crosses for the 〈◊〉 War, by means whereof Pardon of Sins might be grant 〈◊〉 them that undertook that War, and to their Families.
The Second Lateran Council was under Lotharius the Emperor, and Innocentius the Second, which increased to the number of about 2000 Bishops. This Council omitted Thirty Canons lately published by Gratian from the Vatican Library, which Bellarmine is said to reject: It discharged Peter usurping the Roman See after Leo, under the name of Anacletus the Second; branded for Heretics Peter of Bruis, and Arnaldus of Brixia the Disciple of Peter Abullard, who rejected Pedobaptism, Church-buildings, and the Adoration of the Cross: It proclaimed these Lay-persons to be Sacrilegious, and incur the danger of eternal damnation, who receive Tithes; and deprived Usurers of Christian Burial, and Cursed them to Hell.
The Third Lateran Council was under Frederick the First and Alexander the Third, by an assembly of 30 Bishops, who made up the difference between this Alexander, and one Octavianus and his Successors Gindon and John, a German taking up the quarrel with him; which Dissensions divided Europe into parties. Also the Albigenses under the name of Cathari, Publicans & Paterini, taking their Rise from the Waldenses, were here condemned; Lombard, who affirmed that Christ according to his Manhood was nothing, was Censured; Ordinations made by Schismatics wholly abrogated, Private Oratories and Priests for Leprous persons appointed, and the manner of Visitations by Archbishops, Bishops, and Deacons prescribed.
The Fourth Lateran Council was under Frederick the Second, and Innocentius the Third, with 400 Bishops and 80 other Fathers. This Council rejected the Book of Joachimus the Abbot against P. Lombard; established Transubstantiation, Auricular Confession, and the Papal Absolution of Subjects from their Allegiance: It exacted an Oath from Secular Magistrates to expel Heretics nominated by the Pope. This Council by Indulgencies encouraged those that went with Crosses for recovery of the Holy Land under Godfrey of Bulloigne; prohibited Plurality of Benefices, and Sale of Relics.
At Papia in the year 1160. the Emperor Frederick the First convened a Council, occasioned by the difference between Alexander 3. and Victor the 4 th. for the Popedom after the death of Adrian the Fourth. In this Council Victor the Fourth was declared Pope. Whereupon Alexander the Third convened a Council at Cleremont, in which he Cursed the Emperor, Pope Victor, and their Adherents.
At Rome in the year 1180. a Council of One hundred and eighty Bishops was convened by the Popes Authority. Their Consultations and Canons were touching the Form of Electing Popes for the future, also touching Ecclesiastical Dignities and Discipline, touching Excommunication, Residence, Continency, Plurality, Patronage, Presentations, Festivals, Usurers, Jews and Sarazens, and the like.
At Rome in the year 1215. Pope Innocentius the Third Convened a General Council, wherein the Doctrine of Transubstantiation was ratified. This was another of the Lateran Councils.
At Lions Two Councils, the First called by Frederick the Second, and Innocentius the Fourth, about the year 1244. In this Council the Emperor that deserved so well of the Christian Church against the Infidels, was after Four Excommunications deposed by the Pope, prohibiting that any should name him Emperor: Being thus Deposed, he defends his Right by his Gibilines against the Guelphes of the Papal party. In this Council appears no other President than the Pope himself, who with 140 Bishops and Abbots, endeavored under color of recovering the Holy Land, by the Fifths of the Church to redeem the East. By this Council new Festivals were instituted for the Canonizing of Roman Saints. The Seventeen Institutions ascribed to this Council, are said to be rather Political and Polemical than Ecclesiastical, and (according to Bellarmine ) are to be found in the Sixth of the Decretals.
At Lions the other of these Two Councils was under Rodolphus the First at Haspurge, procured by Gregory the Tenth, consisting of at least Seven hundred Bishops: In this Council was present Michael Paleologus the Greek Emperor. Aquinas sent for to this Council dies in his way thither, where Bonaventure, after his being created Cardinal, died also. In this Council the Pope in behalf of the Holy Land requires a Subsidy, the Tenth of all Ecclesiastical Rights for the space of Six years. In this Council also it was ordered, That there should be Bowing at the Name of JESUS. There were 31 Constitutions or Canons made by this Council, which though omitted by the Summulists, may yet be found in the Sixth of the Decretals.
At Vienna in the year 1311. under Henry the Seventh, Clement the Fifth being Pope, a General Council of above Three hundred Bishops was convened. In this Council was set forth a Book of Papal Decrees, called Liber Clementiarum, which was Ratified by this Council. In this Council also it was, that Corpus Christi Day was Ordained to be a Festival, and the Order of Templars to be quite abolished; for the Jerusalem -Expedition being strongly urged in this Council, the Templars are removed out of the way for murdering of the Abissins Ambassador, and other Impieties and Heresies. Whether Trithemius did hit the mark or not, it matters not; Notorious it is, That the Templars were very Rich, but if that were a sufficient pretence for Heresy and Expulsion (as some conceive) then there would be no such thing as the Church of Rome, at least not Orthodox. In this Council the Clergy are permitted to take an Oath of Allegiance, not of Subjection to Lay-Magistrates; also Peter John, the Dulcimists, the Fratricelli, the Begwards and Begwins, together with the Lollards were condemned. Peter John was condemned for denying the Soul to be the Form of Man; a new piece of Heresy against Natural Philosophy. The Constitutions of this Council under the name of Clementine, are extant in 5 Books for a Supplement of the Canon Law; in which is that Famous Decree of Constituting Professors to be maintained by a competent Stipend at the Court of Rome, at the Universities of Paris, Oxford, Bononia, and Salamanca, for the instructing in Hebrew, Arabic, and Chaldee Languages, whereby the Jews and Mohammedans might the more easily be converted to the Faith.
The Fifth Lateran Council in the year 1311. under Maximilian the Emperor, Pope Julius 2. President thereof. It is supposed this Council was called for disannulling another at Pisa, where some Cardinals were met against the Pope. There were convened at this Council 114 Bishops, and it had Twelve Sessions, Five whereof were under Julius, the other Seven were finished by Leo the Tenth. Suarez, Cajetan, and Navarre profess this to be a rejected Council. The pragmatical Decree made at the Council of Basil, in defense of Ecclesiastical Liberty against Popish Usurpations, is here discussed and exploded. The Immortality of the Soul is here also defended, concerning which many at that time doubted it, others wantonly disputed it, and others heretically denied it. By this Council a restraint is laid on such as in Preaching wrest the Scriptures at their pleasure to uphold and disperse some strange Opinions; which restraint extended also to the impression of Books not Orthodox, nor Licensed as such.
At Pisa in the year 1409. was (as some call it) a General Council, consisting of Twenty three Cardinals, Three Patriarchs, Three hundred Archbishops and Bishops, Twenty eight Governors of Monasterics, and a very great number of Divines, and Ambassadors of Princes. The great Dissention between Benedict the Twelfth, and Gregory the Thirteenth was the occasion of this great and First Council at Pisa. Both which having been Summoned, are Deposed by this Council, and Alexander the Eighth placed in St. Peters Chair, which yet removed not the said Dissention; notwithstanding Alexander thus Elected, is reckoned in the Catalogue of the Popes. There were Twenty three Sessions of this Council, the Acts thereof Printed at Paris, An. 1612. are extant. They that conceive this to be a Headless Council (as Antonius and others) because called in a tumult by the Cardinals, without the Popes Authority, do not consider, that at this time the Head was troubled with a double Impostume, and could not be consulted in the case.
At Pisa the Second Council was called by Maximilian the Emperor, and Lewis the French King against Pope Julius the Second, who (it seems) had obliged himself by an Oath to have a General Council within Two years next after his Election to the Popedom; but this not being performed, some of the more eminent Cardinals, under the protection of the said Emperor and French King, meet at Pisa, and Summon the Pope to make his appearance there; instead whereof he Excommunicates them, the French King and all, the Emperor himself scarce escaping that Thunderbolt, and calls a Lateran Anti-Synod at Rome, before whom he excuses his Oath, clears himself, and dies. Leo the Tenth succeeds, continues the Council, and ratifies many Decrees; whereupon the Pisan Cardinals upon their Submission are restored to their former Dignity.
At Constance in the year 1414. a Council with great difficulty was convened by the Emperor Sigismond and Pope John the Twenty third, consisting of about a Thousand Bishops and Doctors, for the removing of the Popish Schisms out of the Western parts, and pacifying the Difference which happened between Three Popes, all striving for the Popedom, viz. Pope John, whom the Italians set up: Pope Gregory, whom the French set up: and Benedict, whom the Spaniards set up. This Council continued Four years; in which all the said Three Popes were Deposed, and Martinus elected Pope. Others relate it somewhat otherwise, As if after Gregory the Eleventh, some Cardinals exalted Urban the Sixth, Others, Clement the Sixth. The Nations are divided into parties, our English (as reported) with the French and Spaniard adhering to Clement; but Urban dying at Rome, Boniface the Ninth supplies his place, but Angelus a certain Venetian succeeds him under the Title of Gregory the Twelfth. Clement also being removed, had for his Successor Peter de Luna a Spaniard, under the name of Benedict the Thirteenth. To quench this Flame the Cardinals and Bishops meet at Pisa, where they exalt one of Crete unto the Papal dignity, under the Title of Alexander the Fifth, who sickening suddenly by an Intoxicating clyster, was succeeded by John the 23 d by Election of the Pisan Cardinals, who by the persuasion of the said Emperor Sigismond called this Council at Constance, and being present at the same, was first accused of many Crimes, then deposed, and Martin the Fifth exalted by the Council to the Papal dignity. There were 45 Sessions of this Council, in the 8 th whereof the Doctrine of John Wycliffe was condemned, and his Bones ordered to be taken out of his Sepulcher and burnt. In the 13 th Session thereof it was Ordained, That no Priest under pain of Excommunication, should Communicate unto the People under both kinds of Bread and Wine. In the 15 Session the Sentence of Condemnation of John Hus was read and published, and himself delivered to the Secular power to be Burned. In the 21 Session, the Sentence of Condemnation was pronounced against Jerome of Pragus, who was also delivered to the Secular power to be Burned. In this Council it was concluded, That the Council is above the Pope; and that an Engagement with an Heretic is not to be kept.
At Basil in the year 1431. was a General Council assembled, procured by Sigismond the Emperor of Pope Martin the Fifth, and afterwards of Eugenius the Fourth, in which Cardinal Julian of Arelatum was President, and which continued high 18 years. This Council had 45 Sessions, and therein it was also concluded (as in that of Constance, ) That the General Council is above the Pope, and that all persons ought to be subject to the General Council, as Children are subject to the Authority of their Mother. Pope Eugenius confirmed this Council by his Apostolical Letters, whom notwithstanding this Council Deposed, and in his room chose Amedeus Duke of Savoy to be Pope, whom they called Felix the Fifth. For this Pope Eugenius the Fourth, being Cited and not appearing, was deposed for his Contempt, and the said Amedeus Duke of Subaudis, who lived an Hermits life in the Mountains of Ripalia, by the Cardinals is exalted to the Popedom, and styled Felix the Fifth. Besides the Delaring here, That the Council is above the Pope, it was also Confirmed, That the Pope cannot dissolve, prolong or remove the Council, being lawfully called. Yet after this the said Eugenius constituted an Anti-Synod at Ferraria, which afterwards removed to Florence, where he acted with the Greeks, the Emperor being present. They of Basil mean while confirmed the pragmatical Decree, condemned Popish Bastardy, suppressed Concubines, and ordered how the Jews might be brought to Christianity. They declared also the Blessed Virgin to be free from the contagion of every sin, indulged to the Lay- Bohemians the use of the Cup in the Eucharist, and by reason of a raging Pestilence betake themselves from Basil to Lausanna, where the Emperor Frederick persuaded Duke Amedeus to renounce the felicity of Pope Felix,
At Florence in the year 1431. a Council contrary to that at Basil, yet fitting and undissolved, was held by Pope Eugenius, in which Council the Emperor and Patriarch of Constantinople with many others of the Greek Church were present, and were prevailed with to yield to many points of the Roman Church, but could never be prevailed with to believe their Doctrine of Transubstantiation. This Florentine Council began at Ferraria, under Albertus Emperor, and Eugenius the Fourth, whence by reason of a Pestilence did remove to Florence, and was there finished. In this Council were 141 Bishops, the Pope himself President, who deposed the Council of Basil at the same time by the Germans. There were present at this Council John Paleologus, with the Patriarch Joseph, and the Greek Doctors. In this Council were debated certain Articles concerning the Proceeding of the Holy Ghost, with the Addition to the Nicene Greed [ and from the Son, ] Purgatory, the Power of Suffrages, and Sacrifice to the Dead, Transubstantiation, the Administring unleavened Bread in the Eucharist, but especially the Popes Supremacy.
At Trent in the year 1546. was a Council held under Charles the Fifth and Ferdinand the Tenth, Paul the Third, Julius the Third, Pius the Fourth, Marcellus, and Paulus the Fourth; for this Council continued no less than Eighteen years: At the First Meeting whereof were Seven Sessions in the Two first years thereof. The Second Meeting was in the time of Pope Julius the Third, An. 1551. which had only Three Sessions, by reason of Wars happening in Germany: At this Second Meeting the French King protested against this Council. The Third Meeting whereof was Nine years after the Second, it being appointed by Pope Pius the Fourth; there having been in this interval, since the Second Meeting, when Julius the Third was Pope, two other Popes, viz. Marcellus and Paulus the Fourth. At this Third and last Meeting there were Nine Sessions, the Last whereof began the Third of December, An. 1563. The chief Points treated of at this Council were concerning the Scriptures, Original Sin, Justification, the Sacraments in General, Baptism, the removing of the Council, the Eucharist, Repentance, Extream Unction, Communion of Lay-persons under one kind, the Sacrifice of Mass, the Sacrament of Order, Matrimony, Purgatory, Worshipping of Relics, Invocation of Saints, Worshipping of Images, Indulgencies, the choice of Meats, Fastings, and Festivals. The History of this Council of Trent is extant.
Of National Councils there have been many more than what are before mentioned, as here in Britain, and in Italy, Spain, France, Germany, the Eastern, and African. In Italy it is said, that there are to be found 115 such Synods, as it were National, which go under the Name of Roman Councils. But such as are of the most Remark in each of these Countries, and the principal things they determined, you may find a touch of (and no more) in the Learned Bishop Prideaux his Synopsis of Councils, in the Eighth Chapter, Edit. 5. Oxford. 1672.
CHAP. XLII.
Of Excommunication.
- 1. What Excommunication is: It is Twofold.
- 2. By what Appellations the Greater and Lesser Excommunication are known and distinguished; their respective derivations and significations, and the nature of each.
- 3. Ecclesiastical Censures in the general may be Threefold.
- 4. What the Law intends by Excommunication ipso facto.
- 5. What the Excommunicate is not debar'd of by Law.
- 6. Legal Requisites to the due pronunciation of the Sentence of Excommunication.
- 7. What course the Law takes with an Excommunicate, after Forty days so perisisting obstinate.
- 8. The several Causes of Excommunication ipso facto, enumerated by Lindwood.
- 9. The Causes of Excommunication ipso facto, by the Canons now in force in the Church of England.
- 10. The several Writs at Law touching persons Excommunicate; and the Causes to be contained in a Significavit, whereon the Excommunication proceeded.
- 11. What the Writs de Excommunicato Deliberando, also de Excommunicato Recipiendo do signify in Law.
- 12. A sufficient and lawful Addition to be in the Significavit, and in the Excom. Capiend. Vid. Sect. 10.
- 13. Several Statutes touching Persons Excommunicated.
- 14. Excommunication for striking in the Church.
- 15. Whether a Bishop hath Jurisdiction, or may Cite a man out of his Diocese.
- 16. What are the Requisites of a Certificate of Excommunication for stay of Actions, and how it ought to be qualified.
- 17. A Significavit of Excommunication, for not Answering Articles, not showing what they were, not good.
- 18. By whom an Excommunication may be Certified, and how.
- 19. In what case the Significavit of an Excommunication ought to express one of the Causes mentioned in the Statute.
- 20. Whether a General Pardon doth discharge an Excommunication for Contempt precedent to the Pardon, or shall discharge the Costs of Court thereon?
- 21. A man taken upon an Excom. Cap. and discharged, because the Significavit did not express the party to be Commorant within the Bishops Diocese at the time of the Excommunicat.
- 22. Where a man is twice Excommunicated, whether an Absolution for the latter shall purge the first Excommunication.
- 23. Whether a Prohibition lies to the Ecclesiastical Court, upon Costs there given, not in an Action at the Suit of the party, but upon an Information there exhibited.
- 24. What Remedy in Law for a party wrong fully Excommunicated, and so remaining Forty days, without suing a Prohibition.
- 25. Whether a Person taken by a Capias de Excom. Capiend. be Bailable or not; And whether the Bishop may take Bond of the Excommunicate to perform Submission for their Absolution.
(1.) EXcommunication, commonly termed in the Common Law, in the Law-French thereof, Excommengement, is a Censure of the Church, pronounced and inflicted by the Canon or some Ecclesiastical Judge lawfully Constituted, whereby the party against whom it is so pronounced, is pro tempore deprived of the lawful participation and Communion of the Sacraments. And is also sometimes (as to Offenders) a deprivation of their Communion, and sequestration of their persons from the Converse and Society of the Faithful. And therefore it is distinguished into the Greater and Lesser Excommunication; the Greater comprizing as well the latter as the former part of the abovesaid definition or description; the Lesser comprizing only the former part thereof. de Except. c. a nobis. Lindw. de Cohab. Cler. gl. in verb. Sacramenta. Excommunicatio, quasi, extra Communionem. For Excommunication is, Extra Communionem Ecclesiae separatio; vel Censura Ecclesiastica excludens aliquem à Communione Fidelium This Ecclesiastical Censure, when it is Just, is not by any means to be despised or opposed; for Christ himself is the Author thereof Anciently among the Hebrews, such persons as were Excommunicated, were termed Aposynagogi, as being quasi Synagoga exacti, and to be shunned or avoided of all men until they repented. That of our Savior in Matth. 18. 17. [ Let him be unto thee as an Heathen man, and a Publican ] seems to refer to some such Excommunication, the power whereof by way of Judicature being then in the Jewish Sanhedrim, or College of Elders.
(2.) This Ecclesiastical Censure, when limited or restrained only to the Lesser Excommunication, the Theologists will have to be understood by the Greek word Anathema, Accursed or Separated; and when it extends to the Greater Excommunication, then to be understood by the Syriac word Maran-atha, or [ Our Lord cometh] Anathema Maran atha. [Anathema] Let him be Accursed, quasi, Devoted to the Devil, and separated from Christ and his Churches Communion: [Maran-atha ] Some take this for a Syriac word . Others, not so well satisfied with that Judgment, will have it to be a Chaldee word, yet used in the Hebrew, and familiarly known among the Greeks . [ Maran-atha] viz. [Our Lord cometh, ] for Maran is, our Lord, and atha, cometh; or rather three words more properly, viz. Mara-na-atha, Our Lord cometh. Being a word used in the greatest Excommunication among the Christians, intimating or implying, That they summoned the person Excommunicated before the dreadful Tribunal at the last coming of the Son of God, or that such as were under this Censure of the Church, were given up and reserved to the Lord's coming, to be judged by him; and mean while (without Repentance and Absolution) are to expect nothing, but the Terrible coming of Christ to take Vengeance of them. To which that Prophesy of Enoch seems to allude, Behold, the Lord cometh with Ten thousands of his Saints, to execute Judgment upon all, &c. The Venerable Mr. Bede doth suppose, that this answers to the heaviest Curse amongst the Jews; for they had (1) their [ Niddui, ] (2) their [ Cherem ] that is, Anathema. This their Cherem, was either the simple and single Anathema, or their Shematha or Maranatha: For this dreadful kind of Excommunication, here called Maran-atha, the Jews called Sammatha; Sem signifying the name of God Tetragrammaton, or Jehovah, and atha, he cometh; though others will have that Sammatha to be derived from [ Sam ] that is [ their ] and [ Mitha ] that is [ death] their death. But not to insist further on the words whereby this Ecclesiastical Censure of Excommunication is signified; for that is but as a Flash of Lightning, in respect of the Thunder of the Curse itself.
(3.) Although every Excommunication is an Ecclesiastical Censure, yet every Ecclesiastical Censure is not an Excommunication; for an Ecclesiastical Censure may be as well per Suspensionem, and per Interdictum, as per Excommunicationem. Extr. de verb. sig. c. quaerenti. Hanc autem Censuram fulminare possunt Eccles. Praelati, quibus ab homine, Lege, vel Canone, aut Consuetudine tribuitur Jurisdictio Ordinaria. De Offic. Ord. c. cum ab Ecclesiar.
4. It hath been sometimes questioned, what the Law intends by Excommunication ipso facto; that Clause imports, ac si diceret, ipso jure, that is, nullo hominis ministerio interveniente. Not. per Arch. de Rescrip. c. 1. verb. ipso jure. li. 6. Lindw. de Offic. Archid. gloss. in c. Vt Archidiacont, verb. ipso facto. And regularly when a person is Excommunicated, it is not intended only of the Lesser Excommunication, Nam Excommunicatio simpliciter prolata, intelligitur de Majori. Extr. de Sen. Excom. c. Si quem 11. q. 3. debent. & Lindw. glos. verb. Excommuni. c. Exhorrenda. De Procuratorib.
(5.) Notwithstanding, the Law doth not exclude the Excommunicate from such lawful Acts, as sine quibus vix potest consistere vita hominis. Glos. ibid. in verb. Actu Legitimo. And although depending the Excommunication, he is disqualified to commence Actions at Law as a Plaintiff, yet he may ad sui defensionem appellare, & caetera in Judicio facere & exercere, quae ad ejus defensionem pertinent. Gloss. Lindw. ibid. And according to Lindwood, he may Matrimonium Contrahere; etiam & Testari. Lindw. ibid.
(6.) This Sentence of Excommunication ought not to be pronounced against Offenders otherwise than rite & cum debita solennitate, that is, juris ordine servato; and therefore the Canon requires, That there issue a Summons or previous Citation to the Delinquent, before Sentence of Excommunication be pronounced against him. Primo vocetur Delinquens propositurus Causam rationabilem, quare pronunciari non debeat incidisse in dictam Sententiam. Ad effectum namque quod aliquis denuncietur Excommunicatus, à Canone vel Constitutione requiritur Citatio praevia. C. Si per vim vel alio modo. l. fin. de Man. & Obed. c. inter quatuor. de Cens. c. fi. in Oec. cum glos. So likewise the Canon is, That Nemo Excommunicationem promulget, ubi Excessus non est manifestus, nisi Monitione Canonica praecedente. Lindw. de Sentenia Excom. c. Vt Archidiaconi. unless the same party for the same cause be Excommunicated again, in which case there needs not any previous Citation or Monition as before; Nam Excommunicatio quae sit saepius ex eadem Causa, potest fieri nulla Citatione, nullaque Monitione praevia. Ibid. c. praeteria. ver. Excommunicentnr: For in truth this Excommunication in such case is not any new Sentence of Excommunication, but only a Ren • vation of the former with an Aggravation; for which reason it is, that such Excommunication as is again pronounced against the same person for the same cause repeated by him, may be nulla Citatione, nullave Monitione praecedente. Ibid. & Extr. de Judaeis. c. ita quorundam. Whence it doth appear, That a person Excommunicated may be Excommunicated again, either for the same or some other new Cause. Ibid. & 3. q. 4. engeltrudam. And although the First Excommunication is in effect sufficient for the ejecting such an one out of the Church, so that he who is once cast out of the Church, amplius excludi non potest; yet by this Second Denunciation there follows another effect, and that is, That thereby he may be reputed and held by all the Faithful in all places, as a person utterly shut out of the Church, donec per suum Judicem secundum formam Ecclesiae fuerit absolutus. Gloss. ibid. verb. & denuncientur.
(7.) Also, when a person Excommunicated hath Forty days persisted in his obstinacy contrary to Law under that Sentence, the Bishop may then make his humble address to the King for the apprehending and imprisoning such obstinate Excommunicates; but this may not be done by any inferior to a Bishop, Nam ad rogatum praelatorum inferiorum Rex non consuevit scribere pro Captione Excommunicatorum. Lindw. de Sententia Excom. c. praeteria. glos. in verb. Praelatorum. And therefore if a man be Excommunicated by any inferior to a Bishop, as by a Dean, Archdeacon, or the like, yet the Supplication for his Majesty's Writ ought to be by the Bishop of that Diocese, and in his Name; Nam Inferiores Episcopis non possunt invocare Brachium Seculare. Ibid. & Lindw. de Cohab. Cler. & Mul. c. 1. §. & si nec. ver. Brachium Seculare. And in case the Bishop shall herein refuse to do what the Law requires, he may be constrained thereto by the Archbishop. Ibid. & de jur. patron. c. nullus. Nor can the Excommunicated person, who (after Forty days persisting in his obstinacy) is upon the Kings Writ (on the Significavit) pro Corp. Excom. Capiendo apprehended or like to be apprehended, evade Imprisonment, or defend himself by an Appeal, or by virtue thereof, or by showing the same to the Temporal Judge, that so under pretence of a dependency of an Appeal he may escape Imprisonment; because such Appeal as to the validity or invalidity thereof, or teneat vel non teneat, legitima vel non legitima, falls under the scrutiny and examination, not of the Temporal, but Ecclesiastical Judge; and therefore si talis indag • sive discussio pertains not to the Secular Judge, it were frivolous to allege that before one not qualified to examine the merits of the Appeal. Dict. c. praeteria. glos. in verb. Dari debet. And as persons Excommunicated cannot legally have any shelter or subterfuge under pretence of such Appeals: so neither do the Canons suffer the Contemners of this Sentence of Excommunication to go unpunished; under which number regularly and generally are computed all such as animo indurato do persevere under Excommunication by the space of Forty days, according to the Custom of the Realm of England. Lindw. de Sententia Excom. c. ut Archidiaconi. glos. in verb. Contemnentes. But more particularly the Canons hold them Contemners of this Excommunication, who add Culpam culpae; or go into the Church, albeit Divine Service be not then celebrating, unless it be to hear the word preached, which being ended, he is immediately to depart; or stand at the Church-door in the time of Divine Service, and hearing the same, albeit he go not within the Church itself; or thrust himself into the company of others, when it is in his power to avoid it; or lastly, when he continues too long secure under such Sentence of Excommunication without repentance, whereby the Law concludes him so manacled by his obstinacy, as no Spiritual Physic can have any operation upon him: And although regularly the Return of such a one is to be expected usque ad annum; yet in this Kingdom ( quoad incovationem Brachii Secularis ) it is sufficient if Forty days be expired after his Excommunication. Ibid. c. 1. authoritate glos. in verb. Contemnentes. And whereas we often in the Law meet with certain Cases of Offences, incurring the Sentence of Excommunication ipso facto, that is as aforesaid, nullo hominis ministerio interveniente; Requiritur tamen, even in that case, Sententia Declaratoria. C. cum secund. Leges. de Haeret. li. 6. & Lindw. de Foro Comp. c. 1. glos. in verb. ipso facto.
(8.) It is therefore not impertinent here to insert, what principally those Offences are, on the Guilty whereof the Law doth inflict this Excommunication ipso facto. Lindwood tells us, that there are found among the Canons and Constitutions Provincial these Cases following, wherein Excommunication ipso facto is incur'd; viz. (1) A willful and malicious impeding the execution of the Canon against Incontinency, specially in Ecclesiastics as to Concubines. (2) A clandestine and surreptitious Proceeding at Law, even to the Writ of Banishment, against an innocent person, and ignorant of the Proceedings. (3) Bigamy. (4) False Accusing of any Innocent Clergy-man before a Temporal Judge, whereby he happens to suffer under the Secular Power. (5) A laying Snares to entrap any in holy Orders; whereby afterwards to charge them falsely before the Secular Powers with Crimes, whereof they were not guilty. (6) A violation of lawful Sequestrations made by the Bishops, their Vicars general, or principal Officials. (7) The exercise of Ecclesiastical Jurisdiction by any Clerk married, or by any Lay-person, in matters only and properly pertaining to the Cognizance of the Church. (8) Disobedience to the Gregorian Constitution, forbidding the holding of Two Benefices Incompatible cum Cura animarum without a Dispensation. (9) A procuring to be Presented to a Benefice that is already full of an Incumbent, by virtue of the Writs of Quare non admisit, or Quare impedit, or the like. (10) Abettors and Advisors of any to fraudulent Conveyances or Deeds of Gift in fraudem Ecclesiae, Regis Creditorum, aut haeredum. (11) All such as hinder any of what quality soever, that are legally Testable, from making their last Wills and Testaments, or afterwards do unjustly obstruct the due execution of the same. (12) All such as hinder the devotion of the people, in making their Offerings and paying their Tithes, converting them to their own use. (13) All such as deny the gathering of the Tithes of any Fruit, or molest and hinder the Collectors thereof. (14) All Laypersons who usurp upon such Oblations and Offerings as are due and appertain only to Ecclesiastical persons, without their assent and the assent of the Bishop. (15) Sacrilegious persons, and all such as invade the just Rights, Liberties, or Revenues of the Church, or otherwise unjustly possess themselves de bonis Ecclesiasticis. (16) All Bailiffs and other Officers, that unjustly enter upon the Goods of the Church, or unduly exact from the same, or commit Waste upon any the Revenues of a Church vacant. (17) All Oppugners of Episcopal Authority, or that resist and oppose the exercise of Ecclesiastical Jurisdiction, and all such as dissuade others from their due Obedience thereunto. (18) All such as being imprisoned for their Contempt to some Ecclesiastical Sentence, are thence set at liberty contrary to the Liberties and Customs of the Church of England, being Excommunicate persons when they were first apprehended. (19) All such as violently usurp upon the propriety of such Trees and Fruits as grow in the Church-yards, rooting them up or felling them down, or mowing down the Grass thereof, contrary to the will and without the consent of the Rector, or Vicar of any Church or Chapel, or their Tenants. (20) All such as should non rite solemnize Prohibited Marriages, that is, such as have any Canonical Impediment. (21) All such as contrary to the true Catholic sense shall assert anything, or lay down positions, or make propositions, savoring of Heresy, publicly in the Schools. (22) All such as in their Preaching or otherwise shall violate the Canon, that enjoins a due examination and approbation of persons before they are admitted to Preach the Word of God. (23) All such as touching the Sacraments assert anything beside or contrary to the determination of the Church, or call such things into doubt publicly, as are defined and stated by the Church. (24) All such as in the Universities do (after a premonition to the contrary) hold any Opinions, or assert any Doctrines, Propositions or Conclusions, touching the Catholic Faith, or good manners, of an ill tendency, contrary to the determination of the Church. (25) All such Clerks as without Ecclesiastical Authority, shall of themselves or by any Lay-power intrude themselves into the possession of any Parochial Church, or other Ecclesiastical Living, having Curam animarum. These Cases, and some others, now not of use in this Realm, are enumerated by Lindwood. Lindw. de Sententia Excom. c. ult. gloss. in verb. Candelis accensis. But there are very many other Cases in the Canon Law that fall under this Excommunication ipso facto, by which in the Law is ever understood the Major Excommunicatio, and was wont to be published and denounced in the Church Four solemn days in every year, when the Congregation was likeliest to be most full, and that in Majorem terrorem.
(9.) The Causes of Excommunication ipso facto, according to the Constitutions and Canons Ecclesiastical of the Church of England, now in force, are such as these, viz. (1) Impugners of the Kings Supremacy. (2) Affirmers of the Church of England, as now established, to be not a true and Apostolical Church. (3) Impugners of the Public Worship of God, established in the Church. (4) Impugners of the Articles of Religion, established in the Church of England. (5) Impugners of the Rites and Ceremonies, established in the Church of England. (6) Impugners of the Government of the Church by Archbishops, Bishops, &c. (7) Impugners of the Form of making and Consecrating Archbishops, Bishops, &c. in the Church of England. (8) Authors of Schisms in the Church. (9) Maintainers of Schismatics, Conventicles, and Constitutions made in Conventicles. Likewise by the said Canons, the Ecclesiastical Censure of Excommunication is incur'd by all such Ministers, as Revolt from the Articles unto which they subscribed at their being made Ministers, and do not reform after a months suspension: Also by all such persons as refuse the Sacraments at the hands of Unpreaching Ministers, after a months obstinacy, being first suspended: Also by all such Ministers as without their Ordinaries License under his Hand and Seal, appoint or keep any Solemn Fasts either publicly or in private Houses, having been formerly suspended for the same fault; and finally by all Ministers who hold any private Conventicles, to Consult on anything tending to the impeaching or depraving of the Doctrine of the Church of England, or of the Book of Common Prayer, or of any part of the Government, and Discipline now established in the Church of England, which by the Seventy third Canon, is Excommunication ipso facto.
(10.) Touching persons thus Excommunicated, persisting Forty days in their obstinacy, there are Three several Writs at the Law, issuing from the Secular power, viz. Excommunicato Capiendo: Excommunicato Deliberando: Excommunicato Recipiendo. The Excommunicato Capiendo is a Writ issuing out of Chancery, directed to the Sheriff, for the apprehending and imprisoning of him who hath obstinately stood Excommunicated Forty days; for the Contempt to the Ecclesiastical Laws, of such not in the interim obtaining their Absolution, being by the Ordinary certified or signified into Chancery, the said Writ thence issues for the apprehending and imprisoning them without Bail or Mainprize, until they Conform . Which Writ as by the Statute of 5 Eliz. c. 23. is to be awarded out of the high Court of Chancery, so it is to issue thence only in Term time, and Returnable in the Kings Bench the Term next after the Teste thereof, and to contain at least Twenty days between the Teste and the Return thereof. And in case the Offender against whom such Writ shall be awarded, shall not therein have a sufficient and lawful Addition, according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained, That the Excommunication doth proceed upon some cause of Contempt, or some Original matter of Heresy, or refusing to have their Children Baptized, or to receive the Holy Communion, as it is now used in the Church of England, or to come to divine Service, now commonly used in the said Church, or Error in matters of Religion or Doctrine now received and allowed in the said Church, Incontinency, Usury, Simony, Perjury in the Ecclesiastical Court, or Idolatry: That then all pains and Forfeitures limited against such persons Excommunicate by the said Statute of 5 Eliz. 23. by reason of such Writ of Excom. Capiend. wanting sufficient Addition, or of such Significavit wanting all the Causes aforesaid, are void in Law .
(11.) The Excommunicato Deliberando, is a Writ to the Under-Sheriff for the releasing and delivery of the Excommunicate person out of Prison, upon Certificate from the Ordinary into the Chancery of his Submission, Satisfaction, or conformity to the Ecclesiastical Jurisdiction . And the Excommunicato Recipiendo, is a Writ whereby Excommunicated persons, who by reason of their Obstinacy having been committed to Prison, and thence unduly delivered, before they had given sufficient Caution or Security to obey the Authority of the Church, are to be sought for, and committed again to Prison . This Sentence of Excommunication by the 65 th Canon pronounced against any, and not absolved within Three months next after, is every Sixth month ensuing, as well in the Parish Church, as in the Cathedral of the Diocese wherein they remain, by the Minister openly in time of Divine Service upon some Sunday, to be denounced and declared Excommunicate; and where by the 68 th Canon Ministers are enjoined not to Refuse to Bury, it is with an exception to such persons Deceased, as were denounced Excommunicated Majori Excommunicatione; for some grievous and notorious Crime, and of whose repentance no man is able to testify .
(12.) A Sentence was given in the Chancellors Court at Oxford at the Suit of B. against H. and thereupon H. was Excommunicated, and taken in London, upon the Writ of Excom. Capiendo. And it came into the Kings Bench, where he pleaded, That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be discharged. And the Opinion of the Court was, That by the Statute of 5 Eliz. the Penalties mentioned in the said Statute are discharged, but not the Imprisonment nor the Excommunication .
(13.) By the Statute of 9 Ed. 2. 12. the Writ de Excom. Capiendo may be awarded to take a Clerk Excommunicate for Contumacy, after Forty days. And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be sent to an Ordinary to Absolve an Excommunicate, but where the Kings Liberty is prejudiced. By the Statute of 5 & 6 Ed. 6. cap. 4. striking, or laying of violent hands upon any person in a Church or Church-yard, is Excommunication. And by the Statute of 2 Ed. 6. 13. it is Excommunication to disobey the Sentence of an Ecclesiastical Judge in Causes of Tithes. By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popish Recusant standing Excommunicate; and by the Statute of 3 Jac. 5. a Popish Recusant convicted, shall stand as a person Excommunicate. And by the Statute of 3 Ed. 1. 15. he that is Excommunicated shall be debarred of Mainprize.
(14.) V. against E. in the Ecclesiastical Court, where the Suit was for Striking in the Church, which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipso facto. By which he surmized him incidisse in poenam Excommunicationis. And being granted, if, &c. And Ashley shown cause why it should not issue, viz. There ought to be a Declaration in the Ecclesiastical Court of the Excommunication, before any may prohibit him the Church. Richardson said, That the Proceedings are not contrary to the Statute, but stood with the Statute. And it was said by Yelverton, It seems there ought to be a Declaration in the Ecclesiastical Court: But the difference is, where it is Officium Judicis, or Ad instantiam paris, they will give Costs, which ought not to be. Hutton and Richardson, If the party will not prosecute it, none will take notice of it, and they proceed to give Costs, then a Prohibition may be granted. And if he be a Minister, he ought to be suspended for an offense against the Statute. And it ought to be first declared, and so to Excommunication; and that cannot be pleaded, if it be not under Seal. Dyer 275. And after all these were agreed by the Court, and no Prohibition was granted .
(15.) B. was sued in the Ecclesiastical Court in a cause of Defamation in another Diocese than that wherein he lived, and being Cited, was for Non-appearance Excommunicated, and upon Significavit the Writ de Excommunicato Capiendo was awarded. Serjeant Finch, Recorder, prayed a Supersedeas for two Reasons. (1.) Upon the Statute of 23 H. 8. because he was Sued out of the Diocese; to which the Court ( viz. Jones and Whitlock ) answered, That at the Common Law a Bishop cannot Cite a man out of his Diocese. And that the Statute of 23 H. 8. inflicts a punishment, &c. and Whitlock said, That a Bishop hath not power of Jurisdiction out of his Diocese, but to Absolve him being Excommunicate. (2) Upon the Statute of 5 Eliz. cap. 23. because the Case of Defamation is not within the Statute, and then the Statute Enacts, That it shall be void. To which the Court answered, That he ought to aver that by way of Plea, and so also said the Clerks of the Court, That he ought to have Sued a Habeas Corpus, and upon Return thereof to Plead. But the Plea was admitted de been esse, and the party bailed .
(16.) No Letters of Excommunication are to be received in stay of Actions, if they are not under the Seal of the Ordinary , for an Excommunication under the Seal of the Commissary is not to be allowed in such case . If the principal cause of the Action, for which the Excommunication was, be not comprised within the Letter of the Certificate, it is not to be allowed; that so it may appear to the Court, that the Ecclesiastical Court had Jurisdiction of the Cause for which he was Excommunicated . The Certificate ought to be Vniversis Ecclesiae Filiis, or to the Justices of the Court where the Suit is to be stayed . Also the Excommunication certified ought to be duly dated, that is, the Certificate ought to contain the day of the Excommunication . A Certificate by the Archdeacon is sufficient by the Custom ; And upon an Excommunicato Capiendo, if it appears that the Excommunication was by an Archdeacon of some certain place, it ought also to appear either expressly or by implication in the Certificate, that the matter for which the Excommunication was, was within his Jurisdiction, otherwise it is not good .
(17.) F. being apprehended upon an Excommunicato Capiendo, and the Significavit being, That he was Excommunicated for not answering Articles, and not showing what they were, his discharge was prayed for the Incertainty thereof, and per Curiam it is not good, and therefore was Bailed: Coke 22 E. 4. is, That a man was Excommunicated for certain Causes, not good; and so Co. 5. Arscots Case Schismaticus inveteratus is not good Excommunication, nor shall be allowed in the cause of him who Excommunicates him, 5 E. 3. quod fuit concessum per Doddridge.
(18.) In Trollops Case it was Resolved, That the Official cannot certify Excommunication, for none shall do that, but he to whom the Court may write to assoil the party, as the Bishop and Chancellor of C. or O. and for that if a Bishop certify and die before the Return of the Writ, it shall not be received, but the Successor shall do it; and one Bishop shall not certify an Excommunication made by a Bishop in another Court, but a Bishop after Election before Consecration may, and so may the Vicar-General, if it appears that the Bishop is in Remotis agendis; also that the Suit and the Cause are to be expressed in the Certificate, that the Temporal Court may judge of the sufficiency, and if it be insufficient (as if a Bishop certify an Excommunication made by himself in his own Cause) the Court may write to absolve him.
(19.) H. was condemned in the Chancellors Court of Oxford, in Costs, and had not paid; an Excommunicato Capiendo being awarded upon a Significavit, returned and delivered here in Court, according to the Statute of 5 Eliz. cap. 23. He was Arrested thereupon. Resolved, The Excommunication was good, though the Significavit doth not mention any of these Causes in the Statute, but it is for other Causes; but if any Capias with Proclamations, and Penalties be therein awarded, the Penalties be void un • ess the Significavit express it to be for one of the Causes mentioned • n the Statute.
(20.) In another Case, where a man was Excommunicated upon a Sentence in the Delegates for Costs in Castigatione Morum, 21 Jac. a Capias with Proclamations issued; and he being taken, Quoad the Excommunicato Capiendo pleads, That the Offence and Contempt was pardoned by the General Pardon of 21 Jac. It was Agreed, That the Pardon did not discharge the Costs of the party, which were taxed before the Pardon: It was moved there, That as the Costs were not taken away, so no more was the Excommunication, which is the means to enforce them to be paid. But Resolved, That this Excommunication before the Pardon, is but for a Contempt to the Court, and all Contempts in all Courts are discharged by the Pardon; wherefore the same was discharged; and for the payment of the Costs, the party is to have new Process.
(21.) A man was taken upon an Excommunicato Capiendo; and the Significavit did not mention, That he was Commorant within the Diocese of the Bishop at the time of the Excommunication, and for that cause the party was discharged. And in an Action where an Excommunication was pleaded in Bar, and the Certificate of the Bishop of Landaph shown of it, but did not mention by what Bishop the party was Excommunicated, it was for that reason adjudged void.
(22.) Upon a Contract Sentence in the Ecclesiastical Court was, That the Defendant should marry the Plaintiff, he did not do it, for which cause he was Excommunicated. The Defendant appealed to the Delegates, by whom the Cause was remitted to the Judge à Quo, who Sentenced him again, where he was also Excommunicated again for non-performance of the Sentence: He appealed to the Court of Audience, and then had 〈◊〉 . He was taken by a Capias Excom. upon the first Excommunication, upon a Habeas Corpus it was Resolved, That the Absolution for the latter had not purged the First Excommunication, quia Ecclesia decepta fuit. (2) That the Appeal did not suspend the Excommunication, although it might suspend the Sentence.
(23.) In Weston and Ridges Case it was Resolved, That upon an Information exhibited in the Ecclesiastical Court, for laying of violent hands upon a Clerk, and Costs there given against the Defendant, for which he was Excommunicated for not paying them; a Prohibition should issue forth, because it was not at the Suit of the party, and Costs are not grantable there upon an Information.
(24). In the Case of Prohibitions it was Resolved, Mich. 8 Jac. That if a man be Excommunicated by the Ordinary, where he ought not, as after a General Pardon, &c. And the Defendant being negligent, doth not sue a Prohibition, but remains Excommunicate by Forty days, and upon Certificate in Chancery is taken by the Kings Writ de Excommunicato Capiendo, no Prohibition lies in this Case, because he is taken by the Kings Writ. Then it was moved, what Remedy the party hath who is wrongfully Excommunicated: to which it was Answered, he hath Three Remedies; viz. (1) He may have a Writ out of Chancery to Absolve him, 14 H. 4. fol. 14. And with this agrees 7 Ed. 4. 14. (2) When he is Excommunicated against the Law of this Realm, so that he cannot have a Writ de Cautione admittenda, then he ought Parere mandatis Ecclesiae in forma Juris, i. e. Ecclesiastici, where in truth it's Excommunicatio contra Jus & formam Juris, i. e. Communis Juris: But if he show his Cause to the Bishop, and request him to assoil him, either because he was Excommunicate after the Offence pardoned, or that the Cause did not appear in Ecclesiastical Cognizance, and he refuse, he may have (as the Lord Coke says) an Action sur le Case against the Ordinary; and with this agrees Dr. & Stu. lib. 2. cap. 32. fo. 119. (3) If the party be Excommunicated for none of the Causes mentioned in the Act of 5 Eliz. cap. 23. then he may plead this in the Kings Bench, and so avoid the Penalties in the Act. Note, It was Resolved by the Court, &c. That where one is Cited before the Dean of the Arches (in cause of Defamation, for calling the Plaintiff Whore ) out of the Diocese of London, against the Statute of 23 H. 8. and the Plaintiff hath Sentence, and the Defendant is Excommunicated, and so continues Forty days; and upon Certificate into Chancery, a Writ of Excommunicato Capiendo is granted, and the Defendant taken and Imprisoned thereby, That he shall not have a Prohibition upon the Statute of 23 H. 8. for no Writ in the Register extends to it; but there is a Writ there called De Cautione admittenda de parendo Mandatis Ecclesiae, when the Defendant is taken by the Kings Writ De Excommunicato Capiendo, and to assoil and deliver the Defendant.
(25.) Where the Court of B. R. was moved for the Bailing of one, who was taken by force of a Capias de Excommunicato Capiendo, upon the Statute of 5 Eliz. cap. 23. and came to the Barr by a Habeas Corpus. Williams Justice, He that is taken by force of a Capis de Excommunicato Capiendo, is not Bailable upon the Statute of 5 Eliz. cap. 23. which Statute doth only dispense with the Forfeiture of the Ten pounds, and such a person is not Bailable; and as to the other matter, the same remains as it was before at the Common Law, and the Statute of 5 Eliz. dispenseth only with the penalty of Ten pounds. Yelverton Justice of a contrary Opinion, and that in this case he is Bailable. Flemming Chief Justice, This is a Case which doth deserve very good consideration, and that therefore he would consider well of it, and also of the Statute of 5 Eliz. before he would deliver his Opinion. Williams Justice, clearly he is not Bailable in this Case. Afterwards at another time, it was moved again unto the Court to have him Bailed. Yelverton Justice, That he is Bailable, and so was it Resolved in one Keyser 's Case, where he was taken by a Writ De Excommunicato Capiendo, brought hither by a Habeas Corpus, and upon Cause shown he was Bailed by the Court, de die in diem, but neither the Sheriff nor any Justice of Peace in the Country can Bail such a one, but this Court here may well Bail, as in the Case before, de die in diem. It was further alleged here in this, That in the Ecclesiastical Court they would not there discharge such a one, being taken and Imprisoned by force of such a Writ, De Excommunicato Capiendo, without a great Sum of Money there given, and a Bond entered into for the same; otherwise no discharge there. Yelverton Justice and the whole Court, The Bishop ought not to 〈◊〉 such a Bond for the performance of their submission. The Rule of the Court here in this was, That upon their submission they shall be Absolved, without any such Bond entered into. Flemming Chief Justice, They shall Absolve them, and if they perform not according to their promise and undertaking, they 〈…〉 again by the Writ De Corpore Excommunicato Capiendo; but the Bishop is to take no Bond of them for their Absolution, to perform their Submission; the taking of such Bond by them being against the Law: And as to the Bailment, all the Judges (except Williams Justice) did agree that he was Bailable, and so by the Order and Rule of the Court he was Bailed. vid. Bulstr. Rep. par. 1. fo. 122. Pasch. 9 Jac. in Case of Hall verse. King.
CHAP. XLIII.
Of the Statutes of Articuli Cleri, and Circumspecte agatis.
- 1. Several Statute-Laws relating to Ecclesiastical persons and things, enacted under the Title of Articuli Cleri, in the Ninth year of King Ed. 2.
- 2. Some other Statute-Laws touching Ecclesiastical matters, made the Fourteenth year of King Ed. 3.
- 3. The Ratification and Confirmation of the 39 Articles of Religion: The Subscription required of the Clergy.
- 4. Certain Cases wherein a Prohibition doth not lie to the Ecclesiastical Courts, according to the Statute of Circumspecte agatis, made the Thirteenth of King Ed. 1. And in what case a Consultation shall be granted.
(1.) THese are certain Statutes made in the time of King Ed. 1. and Ed. 2. touching Persons and Causes Spiritual and Ecclesiastical . By the latter of these it is Enacted, (1) That upon demand of Tithes, Oblations, &c. under that Name, a Prohibition shall not lie, unless the demand be of money upon the Sale thereof (2) That upon debate of Tithes amounting to a Fourth part of the whole, and arising from the Right of Patronage, as also upon demand of a Pecuniary penance, a Prohibition may lie: Not so, in case of demand of money voluntarily accorded unto by way of Redemption of Corporal penance enjoined . (3) That upon demand of money Compounded for in lieu of Corporal penance enjoined for the Excommunication, for laying violent hands on a Clerk, a Prohibition shall not lie . (4) That notwithstanding any Prohibition, the Ecclesiastical Jurisdiction may take cognizance and correct in Cases of Defamation, and the money paid for redeeming the Corporal penance thereon enjoined may receive, notwithstanding a Prohibition be shown (5) That no Prohibition shall lie, where Tithe is demanded of a Mill newly erected. (6) That in cases of a Mixt cognizance (as in the Case aforesaid, of laying violent hands on a Clerk, whereby the Kings Peace is broken, and such like) the Temporal Court may discuss the same matter, notwithstanding Judgment given by the Spiritual Court in the case . (7) That the Kings Letters may not issue to Ordinaries for the discharge of persons Excommunicate, save only in such Cases as wherein the Kings Liberty is prejudiced by such Excommunication . (8) That Clerks in the Kings Service, if they offend, shall be correct by their Ordinaries, but Clerks, during such time as they are in his Service, shall not be obliged to Residence at their Benefices . (9) That Distresses shall not be taken in the Ancient Fees wherewith Churches have been endowed; otherwise, in possessions of the Church newly purchased by Ecclesiastical persons . (10) That such as Abjure the Realm, shall be in peace so long as they be in the Church, or in the Kings Highway . (11) That Religious Houses shall not by compulsion be charged with Pensions, resort, or Purveyors . (12) That a Clerk Excommunicate, may be taken by the Kings Writ out of the Parish where he dwells. (13) That the examination of the Ability of a Parson presented unto a Benefice of the the Church, shall belong unto a Spiritual Judge . (14) That the Elections to the Dignities of the Church shall be free without fear of any Temporal power . (15) That a Clerk flying into the Church for Felony, shall not be compelled to abjure the Realm . (16) And lastly, That the Privilege of the Church being demanded in due form by the Ordinary, shall not be denied unto the Appealor, as to a Clerk confessing Felony before a Temporal Judge.
(2.) In conformity to the premisses there were other Statutes after made in the time of King Ed. 3. whereby it was Enacted (1) That the goods of Spiritual persons should not, without their own consents, be taken by Purveyors for the King. (2) That the King shall not collate or present to any vacant Church, Prebend, Chapel, or other Benefice, in another's Right, but within Three years next after the Avoidance . (3) That the Temporalties of Archbishops, Bishops, &c. shall not be seized into the Kings hands without a just cause and according to Law . (4) That no waste shall be committed on the Temporalties of Bishops during Vacancies, and that the Dean and Chapter may (if they please) take them to Farm . (5) And lastly, That the Lord Chancellor or Lord Treasurer may during such vacancies, demise the Temporalties of Bishoprics to the Dean and Chapter for the Kings use.
(3.) And as there are Articuli Cleri, so there are also Articuli Religions, being in all thirty nine; Agreed upon at a Convocation of the Church of England Ann. 1562. Ratified by Q. Elizabeth under the Great Seal of England, Confirmed and Established by an Act of Parliament, with his Majesty's Royal Declaration prefixed thereunto. Which Act of Parliament requires a Subscription by the Clergy to the said thirty nine Articles; the same also being required by the Canons made by the Clergy of England at a Convocation held in London Ann. 1603. and ratified by King James. The said Subscription refers to three Articles. (1.) That the Kings Majesty under God is the only Supreme Governor of the Realm, and of all other his Highness Dominions and Countries, &c. (2.) That the Book of Common Prayer, and of Ordaining of Bishops, Priests, and Deacons, containeth nothing in it contrary to the Word of God, &c. (3.) That he alloweth of the said thirty nine Articles of Religion, and acknowledgeth them to be agreeable to the Word of God. By the Statute of 13. Eliz. 12. the Delinquent is disabled and deprived ipso facto, but the Delinquent against the Canon of King James, is to be prosecuted and proceeded against by the Censures of the Church ; And it is not sufficient, that one subscribe to the Thirty Nine Articles of Religion, with this Addition (so far forth as the same are agreeable to the Word of God.) For it hath been resolved by Wray, Cheif Justice, and by all the Judges of England, That such subscription is not according to the Statute of 13. Eliz. because the Subscription which the Statute requires must be absolute: But this is no other then Conditional .
(4.) The Circumspecte agatis is the Title of a Statute made in the 13 th. year of Ed. 1. Ann. D. 1285. prescribing certain Cases to the Judges, wherein the Kings Prohibition doth not lie . As in Case the Church-yard be left unclosed, or the Church itself uncovered, the Ordinary may take Cognizance thereof, and by that Statute no Prohibition lies in the Case. Nor in case a Parson demands his Oblations, or the due and accustomed Tythes of his Parishioners; nor if one Parson sue another for Tythes great or small, so as the fourth part of the Benefice be not demanded; nor in case a Parson demand Mortuaries in places where they have been used and accustomed to be paid; nor if the Prelate of a Church, or a Patron demand of a Parson a Pension due to him; nor in the Case of laying violent hands on a Clerk; nor in Cases of Defamation where Money is not demanded; nor in Case of Perjury. In all which Cases the Ecclesiastical Judge hath Cognizance by the said Statute, notwithstanding the Kings Prohibition. So that the end of that Statute is, to acquaint us with certain Cases wherein a Prohibition doth not lie. And the Statute of 24 Ed. 1. shows in what Case a Consultation is to be granted . And by the Statute of 50. Ed. 3. cap. 4. no Prohibition shall be allowed after a Consultation duly granted; provided that the matter of the Libel be not enlarged, or otherwise changed .
CHAP. XLIV.
Of several Writs at the Common Law pertinent to this Subject.
- 1. What the Writ of Darrein Presentment imports, in what case it lies, and how it differs from a Quare Impedit.
- 2. Assise de utrum, what, and why so called.
- 3. Quare Impedit, what for; and against whom it lies
- 4. What a Ne admittas imports, the use and end thereof.
- 5. In what case the Writ [ Vi Laica removenda ] lies.
- 6. What the Writ Indicavit imports, and the use thereof.
- 7. What the Writ Advocatione Decimarum signifies.
- 8. Admittendo Clerico, what; and in what Case issuable.
- 9. The Writ [Beneficio primo Ecclesiastico habendo] what.
- 10. That Writ [ Cautione Admittenda, ] and the effect thereof.
- 11. The writ of [Clerico infra Sacros ordines constituto, non eligendo in Officium,] What the use or end thereof,
- 12. The Writ [Clerico capto per Statutum Mercatorum] what.
- 13. What the Writ of [Clerico convicto commisso Goalae in defectu Ordinarii deliberando] was.
- 14. What the Writ of [ Annua Pensione ] was anciently.
- 15. The Writ of [Vicario deliberando occasion cujusdam Recognitionis] what.
- 16. Three Writs relating to Persons excommunicated.
- 17. Assise of Darrein Presentment brought after a Quare Impedit in the same cause, abates.
- 18. Difference of Pleas by an Incumbent, in respect of his being in by the Presentment of a stranger, and in respect of his being in by the Presentment of the Plaintiff himself.
- 19. Notwithstanding a recovery upon a Quare Impedit, the Incumbent continues Incumbent de facto, until Presentation by the Recoverer.
- 20. Of what thing a Q. Imp. lies, and who shall have it.
- 21. Who may have a Quare Impedit, and of what things.
- 22. How, and for whom the Writ of Right of Advowson lies.
- 23. What the Writ de jure patronatus, and how the Law proceeds thereon.
- 24. The Writ of Spoliation, what, and where it lies.
- 25. The Writ Vi Laica removenda further explained.
- 26. The Writ Quod clerici non eligantur in Officium.
(1.) AGainst the unlawful Possessor, who is the Usurper, liveth Three Writs, viz. One of the Right, as the Writ of Right of Advowson; and the other two, of the Possession, viz. A Quare Impedit, and Darrein Presentment. This Assize of Darrein Presentment or Assisa ultimae Praesentationis, is a Writ, which lieth where a man or his Ancestor hath presented a Clerk to a Church, and after (the Church becoming void by his death or otherwise) a stranger presents his Clerk to the same Church, in disturbance of him who had last presented. This Writ is otherwise also used ; and differs from that of a Quare Impedit; for the Quare Impedit lies upon the disturbance of one who hath the Advowson in his Presentation, when the Church is void: The other lies, where a man or his Ancestors had presented before, and now (the Church becoming void again) a stranger presents in disturbance of him who had last presented. Where ever a man may have Assize of Darrein Presentment, he may have a Quare Impedit, but not e contra . He that hath right to present after the death of the Parson, and bringeth no Quare Impedit nor Darrein Presentment, but suffereth a stranger to usurp upon him, yet he shall have a Writ of Right of Advowson; but this Writ lieth not, unless he claim to have the Advowson to him and his heirs in Fee Simple . Where the Ordinary, Metropolitan, or King presents for Lapse, any of these Collatives will serve the Patron for a possession in his Assize of Darrein Presentment , which Assize of Darrein Presentment may not be purchased, pending a Quare Impedit, for the same avoidance; and therefore in the Case, where William St. Andrew's brought a Writ of Assize of Darrein Presentment against the Archbishop of York, Mary Countess of Shrewsbury, and one Hacker; and the Bishop making default, the Countess and Hacker pleaded in Abatement, that the Plaintiff before the Writ purchased, brought a Quare Impedit against the same Defendants, and shows all certain, which remains undetermined, and averrs that they are both of the same avoidance: And upon Demurrer the Writ was abated by Judgment .
(2.) Assize de utrum or Assisa utrum, is a writ which lieth for a Parson against a Layman, or for a Layman against a Parson, for Land and Tenements doubtful, whether it be Lay-Fee or Free Alms . These Writs are called Assizes, probably either because they settle the possession; and so an outward Right in him that obtains by them; or because they were originally executed at a certain time and place formerly appointed; or because they are tried most commonly by especial Courts set and appointed for that purpose. The Incumbent, as touching his Right for his Rectory; hath the only Writ of Juris utrum, and for his possession any other possessory Action.
(3.) Quare Impedit is a Writ which lieth for him, who hath purchased an Advowson in Gross, or a Manor with an Advowson thereunto appendant, and against him, who (when a Parson Incumbent dieth, or a Church otherwise becomes void) disturbeth the other in the Right of his Advowson, by presenting a Clerk thereunto being void. Vhis Writ is distinguished from the former of Darrein Presentment or Assisa ultimae Praesentationis, because this latter lieth (as aforesaid) only where a man or his Ancestors formerly presented, but the Quare Impedit lies properly for him, who himself was the Purchaser of the Advowson; though he that may have Assize of Darrein Presentment, may have the other if he please, but not so Vice versa, as was also before observed. Yet it is said in Reg. Orig. f. 30. That a Quare Impedit is of a higher Nature, than an Assize of Darrein Presentment, because it supposeth both a Possession and a Right . Which Quare Impedit the Executors of a Testator may (as well as himself might) have upon a disturbance made to the Presentment; and so was the Opinion of the whole Court in Smallwoods Case awainst the Bishop of Coventry and Lichfield, that the Executors may have a Quare Impedit upon a disturbance made to the Presentation , which Writ lieth also of a Chapel, Prebend, &c. . And in case after the death of the Ancestor of him that presented his Clerk unto a Church, the same Advowson be be assigned in Dower to any Woman, or to Tenant by the Courtesie, which do present, and after the death of such Tenants, the very Heir is disturbed to present when the Church is void, it is in his election whether he will sue the Writ of Quare Impedit or of Darrein Presentmet; the which, it seems, is also to be observed in Advowsons Demised for term of life, or years, or in Fee Tail . And Dammages shall be awared in both these Writs, that is, if the time of Six Months pass by the disturbance of any so that the Bishop doth thereby Collate to the Church, and the very Patron lose his Presentation for that turn, Dammages shall be awarded for two years value of the Church: And if the Six Months be not elapsed, but the Presentment bederaigned within that time, then Dammages shall be awarded to the half years value of the Church: And if the disturber hath not wherewith to satisfy the Damages, where the Bishop Collateth by lapse of time, he shall suffer two years Impisonment; and half years imprisonment, where the Advowson is deraigned within the half year . Likewise, he that recovers a Manor, whereunto an Advowson is appentlant, being disturbed to present when the Church is void, shall have a Quare Impedit . In which, as also in Assise of Darrein Presentment, plenarty of the Defendants or Disturbers party is no plea ; but two Quare Impedits of one Church, and for one avoidance a man cannot have . In the Case between the King and the Bishop of Norwich and Saker and Cole it was resolved, that when one is admitted, instituted and inducted, by the presentation of a common person, though it was upon an usurpation upon the King, yet the King cannot remove the Incumbent without a Q. Impedit brought, for the Church is full of him till he be removed— Cro. par. 2.
(4.) Ne admittas, is a Writ that lieth for the Plaintiff in a Quare Impedit, or him that hath an Action of Darrein Presentment, depending in the Common Pleas, and feareth that the Bishop will admit the Clerk of the Defendant during the dependency of the Suit betwixt them. This Writ must be sued within six months next after the Avoidance, because after the six months the Bishop may present by the lapse. Therefore if the Patron of a Church vacant, having or not having any Controversy depending with another touching the right of Presentation, doubteth that before he makes his Presentation, the Bishop may collate a Clerk of his own, or admit a Clerk presented by another to the same Benefice unto which he hath such right of presentation, he may at his own Suit have this Writ of Ne admittas directed to the Bishop forbidding him to collate or admit any to that Church during the time aforesaid .
(5.) Vi Laica Removenda, is a Writ which (upon the Bishops Certificate into Chancery of a force and resistance touching a Church) lieth where a Debate or Controversy is between two Parsons for a Church, the one whereof doth enter into the Church with a strong hand and great power of the Laity, holding the other out, and keeping possession thereof vi & armis; whereupon he that is so held out of possession may have the said Writ directed to the Sheriff of the County, to remove the force within that Church, and (if need be) to raise the Posse Comitatus to his assistance, and to Arrest and Imprison the persons that make resistance, so as to have their Bodies before the King at a certain day to answer the contempt: which Writ is ever made returnable, and is sometimes grantable without the Bishops Certificate, as aforesaid, for it may, it seems, be had upon a surmise made thereof by the Incumbent himself without such Certificate; there being a distinct and several form thereof in each of the said Cases . So that this Writ properly lieth for the removal of any forcible possession of a Church kept by Laymen.
6. Indicavit is a Writ in the nature of a Prohibition, issuing out of the Kings Temporal to his Ecclesiastical Courts, and lieth for the Patron of a Church, whose Clerk is Defendant in some Spiritual Court in an Action of Tithes commenced against him by another Clerk, and extending to the value of the fourth part of the Church, or of the Tithes belonging thereunto; for in this Case the cognizance thereof belongs to the Kings Temporal Courts by the Stat. of Westm. 2. c. 5. wherefore, the Defendants Patron being like to be prejudiced thereby in his Church and Advowson, in case the Plaintiff should prevail and obtain in the Spiritual Court . So that this Writ lieth properly where there is a contest or Controversy between two Clerks in an Ecclesiastical Court, of a Church or part thereof for Dismes or Tithes amounting at the least to the value of the fourth part of the Church; In which regard the Patron of the Clerk Defendant, losing his Advowson in case the Plaintiff should recover in the Spiritual Court, shall have this Writ directed to the Clerk Plaintiff, or to the Officers of the Ecclesiastical Court, commanding them to cease their proceedings, until it be discust and decided in the Temporal Court, to whom the cognizance of the Advowson belongs; This Writ shall be between four persons, whereof two are Patrons, and two are Clerks; and is not returnable as other Writs; but if they cease not their Suit and proceedings in the Ecclesiastical Court, an Attachment issues. .
(7.) Advocatione Decimarum is a Writ, that lieth for the claim of the fourth part or upwards of the Tithes that do belong to any Church .
(8. ) Admittendo Clerico is a Writ granted to him, who hath recovered his right of presentation against the Bishop in the Common Pleas .
(9.) Beneficio Primo Ecclesiastico habendo is a Writ directed from the King to the Lord Chancellor, to bestow the Benefice that shall first fall in the Kings gift, above or under such a value, upon this or that person .
(10.) Cautione admittenda is a Writ that doth lie against a Bishop, who holdeth and detaineth an Excommunicate Person in Prison, notwithwanding he offers sufficient Caution or Assurance to observe and obey the Orders and Commandments of Holy Church from thenceforth. The form and further effect of which Writ vid. Reg. .
(11.) Clerico infra sacros ordines constituto, non eligendo in officium, is a Writ directed to the Bailiffs, &c. that have imposed a Bailywick or Beadleship upon one in Holy Orders, charging him to release him thereof .
(12.) Clerico capto per Statutum Mercatorum, &c. is the delivery of a Clerk out of Prison, who is imprisoned upon the Breach of the Statute Merchant .
(13.) Clerico convicto commisso Goalae in defectu Ordinarii deliberando, is a Writ for the delivery of a Clerk to his Ordinary that was formerly convict of Felony, by reason his Ordinary did not challenge him according to the Privileges of Clerks .
(14.) Annua Pensione is a Writ now grown obsolete and out of use: For whereas anciently there were certain Abbeys and Priories, that in respect of their Foundation or Creation, were obliged unto an Annual Pension due unto the King for such his Chaplains unprovided of a sufficient Living, as he should nominate and appoint: This Writ in pursuance thereof was wont to issue to such Abbot or Prior, in favor of such whose name was comprised in the said Writ, until &c. requiring the said Abbot or Prior, that for his said Chaplains better assurance, he give his Letters Patents for the same .
(15) Vicario deliberando occasion cujusdam Recognitionis &c. is a Writ that lieth for a Spiritual person imprisoned upon forfeiture of a Recognizance, without the Kings Writ . For as there is one Form of the Writ Statuto Mercatorio, for the imprisoning of him who hath forfeited his Bond called the Statute Merchant, until the Debt satisfied, as to Lay persons: So there is another Form of the said Writ, as against Ecclesiastical Persons .
(16.) Touching the three Writs, viz. De Excommunicato capiendo. Excommunicato deliberando. Excommunicato recipiendo vid. sup. in cap. de Excommunicatione.
(16.) The Village of St. Andrew's brought a Quare Impedit against the Archbishop of York and Countess of Strewsbury, and after brought an Assize of Darrein Presentment for the same Church. The Quare Impedit is returned. It was said by the Court that the Assize of Darrein &c. shall abate, vid. by Hobard. But if he had brought another Quare Impedit, it had been well. And so it was resolved in the Earl of Bedford's Case; and by Hutton, that the Statute of W. 2. cap. 5. proves it, viz. Quod habeant Ass. &c. vel Quare Imp. but not both vid. 8 E. 3. 17.
(18.) In a Quare Impedit the Incumbent pleads, that before the Action brought he had been in by the space of six months, &c. of the presentment of S. S. in the Church. This difference was taken by Serjeant Henden, and agreed by the Court: when the Incumbent pleads the presentment of a Stranger, there he ought to show, That the Stranger had a Title, and that he was seised of the Advowson, &c. or that he was seised of a Manor to which, &c. But where he pleads that he was in for Six months of the Presentment of the Plaintiff himself, or by collation by lapse by the Ordinary, there he need not make any Title. 10. E. 11. .
(19.) If a man recovers in a Quare Impedit against an Incumbent, the Incumbent is so removed by the Judgment, that the recoverer may present to the Church without other removal of the Incumbent, who yet continues Incumbent de facto until there be a Presentation made by the recoverer . And after such recovery in a Quare Impedit, a Stranger to the recovery cannot present to the Church, for notwithstanding the recovery, the Incumbent continues Incumbent de facto as to all Strangers to the recovery .
(20.) A Quare Impedit lies of a Donative, and the Writ shall be Quod permittat ipsum presentare ad Ecclesiam, &c. and set forth the special matter in his Declaration . And the Grantee of a next avoidance may have a Quare Impedit against the Patron who granted the same .
(21.) If the Husband, who hath an Advowson in right of his Wife, be disturbed in his presentation thereto, and dies, the Wife shall have a Quare Impedit on that disturbance Also a Chapter may have it against the Dean for their several possessions . It lies also of a free Chapel which a man hath by Patent from the King, if the Sheriff refuse to put him into possession thereof . A presentation by a Bishop as Patron, is sufficient for the King to maintain a Quare Impedit to the Church, when the Temporalties come into the Kings hand by reason of vacancy of the Bishopric .
(22.) The Writ of Right of Advowson lieth properly for him, who claims to have the Advowson to him and his Heirs in Fee-simple . This Writ lies of an appropriation . He that procures this Writ, ought to show a possession in himself or Ancestors . Admission and Institution of a Clerk without Induction, is not sufficient to maintain this Writ .
(23.) When a man presents his Clerk to the Bishop within the Six months, and also another presents his Clerk, in that case the Church is Litigious, and the Bishop may issue the Writ De jure Patronatus, to inquire to whom the right of Patronage belongs. This Writ may also issue out of Chancery to the Ordinary . And the Ordinary is to make Inquisition thereon . Some question is, at whose costs this Writ shall be sued, whether at the Bishops, or at the parties? It hath been said, that it shall be sued at the costs of the Ordinary; because it is for his own discharge and for his ease . But it seems otherwise, for that the Ordinary is not obliged to award a Commission to inquire De Jure Patronatus ex Officio, but at the desire of the parties . For when the Church is litigious, he may suffer the lapse to incur without enquiry. 34 H. 6. 41. Curia. 35 H. 6. 18. b. and if he should be obliged to grant it ex Officio, then he should never have a lapse. 35 H. 6. 19. And by 34 H. 6. 38. It shall be at the costs of the parties, for that the Ordinary is Judge in that case . If there be but one only that doth present to the Ordinary; yet he may award a Jure Patronatus . But if two present, then there may be two Jure Patronatus : And if the Ordinary admit his Clerk, for whom the right is found upon the Writ, it will excuse the Ordinary, and he shall be no disturber, although the right in a Quare Impedit be afterwards found for the other party . But if on the said Writ the right be found for one Petron, and afterwards the Ordinary admit the Clerk of the other Patron, that is at his peril, for he may (if he please) admit him, notwithstanding the Commission, and the finding for the other . For it seems it is but for the Ordinaries better information. But when the right on the said Writ is found for one Patron, and the Ordinary admits the Clerk of the other Patron: if it be afterwards found in a Quare Impedit, that the right belongs to that Patron for whom it was found in the Jure Patronatus, he will be a disturber . It is some question, whether the Ordinary may suffer the lapse to incur, after it is found on the said Writ for one of the Patrons? It is supposed that he may not: For 35 H. 6. 19. per Prisot. he shall not have any lapse after it is found for one of them, for he is to admit his Clerk . Yet after it is found for one of them, the Ordinary is not obliged to admit his Clerk without a new request made to him by the Clerk, but no need of the Patrons making any new request or presentation .
(24.) The Writ of Spoliation lies properly by one Incumbent against another Incumbent, where the right of the Patron comes not into debate . And therefore if a person be Created Bishop, and hath a dispensation to hold his Rectory, and after the Patron presents another Incumbent, who is instituted and inducted, the Bishop shall have against that Incumbent a Spoliation; which proves the Bishop to continue Incumbent after his Consecration, and to hold his Rectory by his former Presentation; and in ancient times it was held, that where the Pope doth Licence one, who is created a Bishop, to retain his former Benefice, and the Patron presents another, if in that Case the Elder Incumbent sues a Spoliation in the Spiritual Court, it well lies, for both claim by the same Patron . So that if one happen (during the Incumbents presentation) to be presented by the same Patron, or do come into the same Church, by course of Law, so that the Patronage comes not into Debate, a Spoliation lies.
(25.) If any man shall hold or keep the possession of a Church by force, so that the Bishop or the Parson cannot do their office there, it shall be removed by the Kings Writ, called Vi Laica removenda, as aforesaid: which Writ lies especially where the debate is between two Parsons touching the same Church, or Prebendaries, on the Title, and where the one keeps the other out by Force and Arms; but by this the Force only shall be removed, and not the Incumbent, who is in possession of the Church, whether he be in possession by right or wrong. And this Writ shall be granted on the bare Surmise of the Incumbent, or party grieved, without any Certificate made by the Bishop into Chancery, as upon such Certificate, & also by reason thereof; and there are two several forms of the Writ in these two Cases; which Writ is returnable or not, at the pleasure of the party who sues out the same; and may be returned into the Court of Common Pleas as well as into the Kings Bench.
S. was deprived by the high Commissioners for not conforming to the Canons of the Church; it was general, quia Refractarius; but no particular Canon mentioned: The King by reason of the said Deprivation, presented B. who was inducted, but S. would not yield up the possession of the Parsonage-house: whereupon the Writ of Vi Laica issued out of Chancery; the Sheriff came to the house, but could not apprehend the parties; B. finding the house empty, entered peaceably; S. made an Affidavit in B. R. that he was ousted by the Sheriff by force, and B. put in possession; the Court of B. R. thereupon granted a Writ of Restitution, he having an Appeal depending of the Deprivation: In this Case these points were resolved; (1) That the Writ De vi Laica removenda is not returnable unless the Sheriff find the Force. (2) That the Kings Bench cannot award Restitution upon an Affidavit, but there ought to be a Return of the Writ of Vi Laica &c. in the Chancery, and upon Affidavit made there, that the Sheriff by virtue of the Writ hath removed one and put another in possession, Restitution is awardable. (3) Resolved, that upon a Deprivation by the High Commissioners no Appeal lieth, because the Commission is grounded upon the Prerogative of the King, in the Ecclesiastical Goverment; and therefore the Commissioners being immediate from the King and possessing his person no Appeal lieth. (4) Resolved, That the Canons of the Church, made by the Convocation and the King, without Parliament, shall bind in all matters Ecclesiastical, as well as an Act of Parliament: In the principal Case it was adjudged, that until the Deprivation was repealed, it stood good; and so B. had good Title to the Church.
A Lease was made of a Rectory, a Parson was presented to it, and upon a supposition, that he was held out by Force, had a Vi Laica removenda, upon which the Sheriff returned Non inveni vim Laicam, nec potentiam armatam, notwithstanding which Return upon Affidavit, that he was kept out with Force, a Writ of Restitution was awarded out of the Kings Bench. Yet in Zakars Case, Coke Chief Justice said, we are to judge upon a Record, and not upon Affidavits, in which Case he being deprived for Simony, Richardson Serjeant moved the Court to have him restored again, because (as he urged it) he was unlawfully removed: The reason being, that in a Vi Laica removenda, whereby he was removed (which Writ by F. N. B. and the Register, comes to remove omnem vim Laicam ) he shows that the Sheriff did dispossess him, and put another in, the which he ought not to do, and as Coke Chief Justice then said, that in so doing he had done against the Law, if he removes one and puts another in; and Richardson Serjeant there cited Robinson's Case, Hill. 38. Eliz. where upon an Affidavit made that the Sheriff in a Vi Laica removenda, had removed one, and put another in, there this was debated, whether upon this shown to the Court the first man removed should be restored again or not; and there resolved by the whole Court, the second man to be displaced again, and the first to be restored; and Coke said, if a Justice of Peace remove a Force, he cannot put another into possession:
(26.) There is a Writ in the Register, Quod Clerici non Eligantur in officium Ballivi &c. For all Ecclesiastical persons in office are allowed certain privileges by the Common Law in respect of their Function; they are exempt from all personal charges, which might any way hinder them in their calling; as to be Chosen to the Office of Bailiff, Beadle, Reeve or the like in respect of their Lands; to which end the said Writ is provided, which doth recite that by the Common Law they ought not to be chosen to such offices aforesaid, and commands that in case any Distress be taken or Amercement levied on any of them on that account, that it shall be restored. So the Stat. of Marleb. cap. 10. That persons of Holy Church, and persons Religious, shall not be commpell'd to come to the Sheriffs Tourne or Leet; and so also it is by the Common Law. In Favor also of Holy Church the Law did anciently allow them Two other privileges, viz. Clergy and Abjuration.
In the Ninth year of the Reign of King James, a question was moved, whether after the Conviction of an Heretic before the Ordinary, the Writ de Haeretico comburendo did at that day lie or not; as to the Resolution of which question the Judges were then divided in opinion, as appears in the Fortieth Chapter precedent, §. 7. what was then controverted, is now decided by an Act of Parliament made in the 29 th. year of his Majesty's Reign, wherehy it is enacted, that the Writ commonly called Breve de Haeretico comburendo, with all process and proceedings thereupon, in order to the executing such Writ, or following or depending thereupon, and all punishment by death, shall be from thenceforth utterly taken away and abolished.
〈 in non-Latin alphabet 〉
THE INDEX Referring to PAGE and PARAGRAPH.
- ABBY -Lands, how many ways privileged or discharg •• 〈◊〉 Tithes. p. 383. How the Abby of Battle came to be dispens •• with from Visitation. p. 108. Sect. 8. When and by whom 〈◊〉 Abby of Westminster was founded. p. 328. Sect. 5.
- Abbot, whence that word is derived, and what it signifies. p. 326 327. Sect. 1. How many Abbots anciently in England. p. 327. Sect. 1. and 328. Sect. 5. They were reputed as Peers. p. 327. Sect. 2. Some were Elective, others Presentative. p. 328. Sect. 5. When and by whom made Elective. p. 331. Sect. 7. Three Abbots condemned at once for denying the Kings Supremacy. p. 10. Sect. 14.
- Abeyance, what. p. 183. Sect. 9. and 189. Sect. 8. and 284. Sect. 3.
- Abjuration, The form thereof anciently. p. 141, 142. Sect. 8.
- Absence of the Husband from the Wife, what requisite to cause a Divorce. p. 494. Sect. 2.
- Abstinence or Fasting Days, the Original thereof in England. p. 130. Sect. 44.
- Acceptance of Rent, by a Bishop, whether it shall bind him. p. 38. Sect. ult. By a Parson, whether it confirms the Lease made by his Predecessor. p. 189. Sect. 8.
- Accessories determinable in that Court which hath cognizance of 〈◊〉 Principal. p. 114. Sect. 11. and p. 123. Sect. 25.
- Account, in what case an Executor shall not be compelled thereun •• p. 116. Sect. 12.
- Acorns, Whether Tithable. p. 383.
- Action upon the Case, in what Case it may lie at Common Law for suing in the Ecclesiastical Court. p. 444.
- Administrator, how he may make his own Goods 〈…〉 Debts. p. 86. Sect. 11.
- Admission, what; and under what qualification 〈…〉 p. 272. Sect. 6. the form thereof. p. 272. Sect. 7.
- Admittendo Clerico, in what Cases that 〈…〉
- Adultery, where Cogni • able, and 〈…〉
- Advocatio Medietatis Ecclesiae, & Medietatis Advocationis Ecclesiae, the difference in Law between them. p. 206. Sect. 2.
- Advocatione decimarum, what that Writ imports. p. 647. Sect. 7.
- Advowe or Avowe, who properly such. p. 206. Sect. 2. and p. 213. Sect. 14.
- Advowson, what; and whence derived. p. 205. Sect. 1. Twofold. p. 206. The Original thereof. p. 207. Sect. 3: A Temporal non Spiritual Inheritance. p. 209. Sect. 6, 7. How Advowson in Gross differs from Appendant. p. 210. Sect. 8. Whether it may be extended. p. 182. Sect. 7. By what words in a Grant it may pass, or not. p. 211. Sect. 10. p. 214: Sect. 15, 16. Whether it may be Assets. p. 214. Sect. 15. Whether the Advowson of a Vicarage endowed, belongs to the Parson or the Parsons Patron. p. 216. Sect. 21. Whether the Advowson of a Vicarage doth pass by the Grant of the Vicarage. p. 219. Sect. 24. Three Original Writs of Advowsons. p. 216. Sect. 20.
- Aftermath, and Aftergrass, whether Tithable. p. 384.
- Age, at what age a Minor Executor may administer. p. 219. Sect. 16.
- Agistment what, and whether Titheable. p. 384, 385.
- Agreement between Parson and Parishioner touching Tithes. p. 373. Sect. 47. and p. 385, 386. Good for years without Deed, not so for Life p. 379. Sect. 69. and p. 386.
- Alcheron, how severely it doth punish Adultery. p. 471. Sect. 6.
- Aldermanus, anciently what? p. 96. Sect. 1.
- Aliens, whether presentable to a Church in England, p. 264. Sect. 26. and p. 272. Sect. 6.
- Alimony, what. p. 508. Sect. 13. where cognizable. p. 510. Sect. 16. 18, 19. In what Cases the Law allows Alimony or not. p. 509, 510. Sect. 14, 15. whether due to her that Elopes. p. 508. Sect. 13.
- Alms, or things appointed for that end, whether Tithable. p. 386.
- Altarage, what. p. 339. Sect. 1. whether Tithe- Wool, or Tithe- Wood shall pass by the word Altaragium. p. 341. Sect. 3. p. 342. Sect. 4, 5.
- St. Andrew's in Scotland, when and by whom the Bishop thereof was made Metropolitan of all Scotland. p. 18. Sect. 9.
- Animalia Utilia & Inutilia; the difference between them in reference to Tithes. p. 360. Sect. 17. and p. 386.
- Annates, what; by and to whom payable. p. 335. Sect. 1. The Original thereof. p. 337. Sect. 2, 3. vid. First-fruits.
- Annua Pensione, what that Writ imports. p. 648. Sect. 14.
- Anselm Archbishop of Canterbury, the first that made Appeals to Rome. p. 97. Sect. 1. and p. 118. Sect. 13. The first Archbishop of Canterbury that was Legatus Natus. p. 98. Sect. 1.
- Apparitor, Action against such for false informing. p. 88. Sect. 14. vid. Summoner.
- Appeals to Rome, prohibited. p. 9. Sect. 14. p. 118. Sect. 13. They are made to the King in Chancery. p. ibid. Appeal out of Ireland to the Delegates in England, in what case. p. 407. vid. Delegates.
- Appellatione remota, the effect of that clause in Law. p. 117. Sect. 13.
- Apples, what Tithes they pay, whether small to the Vicar, or great to the Parson. p. 361. Sect. 21. p. 386. In what case they may not be Tithable. p. 371. Sect. 44.
- Appropriation, what. p. 223. Sect. 3. The original thereof. p. 221, 222. Sect. 1. Whether it may be made without the Kings License. ibid. and p. 198. Sect. 3. Whose Assents are requisite thereunto. p. 222. Sect. 1. How they are now changed in their use and end, from what they were originally. p. 223. Sect. 2. Whether they might formerly be granted to Nunneries. p. 223. Sect. 2. and p. 225. Sect. 5. They may not now (as to their Original) be called into question. p. 226. Sect. 6. How a Church Impropriate may become disappropriate. p. 229. Sect. 12.
- Arabians, their strange conceit of Adultery. p. 471. Sect. 6. The punishment thereof with them Capital. ibid.
- Arable Land, left Fallow and until'd every other year, whether Tithable that year. p. 394.
- Archbishop, whence so called; A description of that Dignity. p. 12. Sect. 1. What difference between Archbishop and Metropolitan. p. 15. Sect. 3. Three Archbishops in England and Wales anciently. p. ibid. Sect. 4. How that in Wales came to be lost, and when. p. 17. Sect. 6. None in Ireland until the year 1152. p. 20. Sect. 13. In what Cases an Archbishop may call Causes to his own Cognizance Nolente Ordinario. p. 19. Sect. 10. Whether he may Cite a man out of his own proper Diocese. p. 100, &c. Sect. 3. The great Antiquity, Precedency, Privileges, Style, and Precincts of the Archbishop of Canterbury. p. 13. Sect. 1. He is the first Peer in England, next to the Blood Royal. ibid. Anciently he had Primacy as well over all Ireland as England. p. 20. Sect. 13. He was anciently styled Patriarcha, & orbis Britannici Pontifex. ibid. He had some special marks of Royalty. p. 21. Sect. 13. Several Privileges peculiar to him. ibid. Whether he had concurrent Jurisdiction in Inferior Dioceses within his Province. p. 18. Sect. 9. That See kept Four years by King William Rufus without an Archbishop. p. 24. Sect. 3. In what respects the Archbishop of Canterbury hath some power over the Archbishop of York. p. 18. Sect. 9. The Original of the Metropolitan See of York. p. 14. Sect. 2. The Antiquity, Precedency, Style, and Precincts of the Archbishop of York. ibid. Anciently an Archbishop of London. p. 17. Sect. 7.
- Arch • s -Court, the hig •• Consistory. p. 83. Sect. 6. Why so called. p. 100. Sect. 3. The great Antiquity, Jurisdiction, and decent order 〈…〉 5.
- 〈…〉 and what he is. p. 60. Sect. 1. How he 〈…〉 Office and Jurisdiction. p. 61. Sect. 1. The 〈◊〉 kinds of Archdeacons, and how many in England. p. 61. Sect. 2. How they are distinguished by the Canon Law. p. 65. Sect. 10. Whence their P • rer is derived. p. 62. Sect. 3. The Canon touching 〈…〉 to their Visitations. p. 64. Sect. 9. Whether they have Power of Visitation Jure communi. p. 63, 67. Sect. 7. What Remedy in case an Archdeacon d • th refuse to swear the Church-Wardens elect. p. 164. Sect. 9. Whether an Archdeaconry be understood as a Benefice with Cure p. 62. Sect. 5. and p. 200. Sect. 13
- Arch-Flamins, what, and how many anciently in England, and where. p. 16. Sect. 4. They were succeeded by as many Archbishoprics. ibid.
- Arch-Presbyter, what, p. 56. Sect. 7
- Arms, or Coat-Armor on Monuments or Church-windows not to be defaced or demolished. p. 138, 139. Sect. 5
- Arrests, whether they may de executed on Christmas -Day. p. 115. Sect. 12. Whether executable on Clergy-men in time of Divine service. p. 141. Sect. 8.
- Articles 39 of Religion, what kind of subscription thereunto required. p. 163. Sect. 8. Articles of Religion under King Ed. 6. p. 8. Sect. 14. The like under Q. Eliz. ibid. Articles of Enquiry on a Jure Patronatus. p. 180. Sect. 2. Articles before the high Commissioners at York against the Vicar of Hallifax. p. 189. Sect. 9.
- Articuli Cleri, and Circumspecte agatis, what. p. 639.
- Assault on a Clerk, whether cognizable before the Ordinary. p. 115. Sect. 12. Assaults in the Church or Church-yard are not to be retaliated. p. 139. Sect. 5
- Assent to the Articles of Religion, what good or not, within the intent of the Statute. p. 163. Sect. 8. Assent of the Ordinary requisite to the Foundation of a Church, p. 207. Sect. 5. Assent of the Patron requisite to the Union and Appropriation of Churches, p. 109. Sect. 8.
- Assise de utrum, what, and why so called, p. 644. Sect. 2.
- Attorney at Law, he may not be elected Church-warden, p. 164. Sect. 9.
- Audience, or Court of Audience, what it was, where kept, and what matters it took Cognizance of, p. 106. Sect. 7.
- Aumone or Frank Almoigne, a description thereof, it's use and end, p. 338. Sect. 4.
- AVoidance, what, 283. Sect. 1. Twofold, ibid. What difference between Avoidance and Next Avoidance, p. 284. Sect. 2. How many ways it may be, p. ibid. Sect. 3. In what Court cognizable, p. 122. Sect. 21. The difference between the Common and Canon Law in reference to Avoidances, p. 286. Sect. 8. The grant of the Next Avoidance, during an Avoidance, is void, p. 219. Sect. 24. Whether the grant of a Next Avoidance good without Deed, p. 255. Sect. 4.
- Avowe or Advowe, what, p. 181. Sect. 5.
- Austin, whether the first that preached the Gospel in England, p. 13. Sect. 1. Whether the first Archbishop of Canterbury, p. ibid. Where buried, p. 16. Sect. 4.
- Award or Arbitrement pleaded in Barr of Tithes in the Ecclesiastical Court, and refused, no ground for a Prohibition, p. 122, 123. Sect. 25.
-
B.
- BAIL, whether it may be taken for one apprehended by a Capias, De Excom. capiend. p. 651. Sect. 25.
- Banns, what, whence derived; how published; by whom dispensed with, and the legal Requisites in order to such Dispensations, p. 465.
- Bark of Trees, what not Tithable, p. 387.
- Barren Land, the Law touching the Tithes thereof, p. 387. &c.
- Bastard, whence that word, and who properly such, p. 478. Sect. 1. and p. 486. Sect. 16, 18. How differenced from Mulier at Common Law, p. 478. Sect. 2. How distinguished at the Civil Law, p. 480. Sect. 5. How that Law computes the time of a Woman's going with Child, p. 482. Sect. 7. How computed at the Common Law, p. 482: Sect. 9. and p. 484. Sect. 12.
- Bastardy, how distinguished at Common Law, p. 478, 479. Sect. 3. It is Triable by the Certificate of the Bishop, p. 122. Sect. 21. How prosecuted in Courts of Justice, p. 480. Sect. 6. and p. 484. 485. Sect. 13. How punished, p. 438. Sect. 10. and p. 485. Sect. 14. Difference between the Common, Civil, and Ecclesiastical Law in reference to Bastardy, p. 487. Sect. 19.
- Baud, whether and where Actionable for calling one so, p. 519, 520. Sect. 11. and p. 520. Sect. 13. and p. 523. 20.
- Beauford Henry, Great Uncle to King H. 6. and Bishop of Winchester, made Cardinal, how he thereby fell into a Premunire, p. 110. Sect. 8.
- Becket Archbishop of Canterbury, his contention with King Henry 2. p. 100. Sect. 2.
- Beech -Trees, how and in what Case Tithable or not. p. 389.
- Bees, in what kind they pay Tithes. p. ibid.
- Benefice Ecclesiastical, the true definition thereof. p. 200. 12. The reasons of that definition. p. ibid. Whether Ecclesiastical Dignities fall under the notion of Benefices. p. 200. Sect. 13. Of what a Benefice consists. p. 200, 201. Sect. 14. No Contract to be made for it, nor is it vendible. p. 201. Sect. 15. Six Signs or Requisites of an Ecclesiastical Benefice. p. ibid. The common distinction thereof. p. 201. Sect. 16.
- Beneficio primo Ecclesiastico habendo, what that Writ imports. p. 647. Sect. 9.
- Birch -Trees, whether Tithable after Twenty years growth. p. 390.
- Bishop, the derivation of that word, and why so called. p. 22. Sect. 1. Anciently he was the universal Incumbent of his Diocese. p. 13. Sect. 1. Why called Ordinary. p. ibid. Sect. 2. What things requisite to his Creation. p. 25. Sect. 4. The form and manner of making Bishops. ibid. and p. 26. and p. 50. Sect. 8. His interest and Authority in his several capacities. p. 29, 30. Sect. 9. Whether he may grant Letters of Institution out of his own proper Diocese, and under any Seal other than his own Seal of Office. p. 31. Sect. 12. Several things incident to a Bishop qua talis. p. ibid. and Sect. 13. In what respects his Jurisdiction is not merely local. p. 32, 33. Sect. 15. The Dignity and Precedency of Bishops here in England. p. 35. Sect. 19. Their precedency among themselves. p. 13. Sect. 1. Their Capacity of Temporal Jurisdiction restored. p. 36. Sect. 20. They were anciently invested per Annulum & Baculum. p. 24. Sect. 3. and p. 29. Sect. 8. Bishops of London Deans of the Episcopal College. p. 38. Sect. 22.
- Bishoprics in England, all Founded by the Kings of England. p. 24. Sect. 3. How many iu England. p. 12, 13. Sect. 1. They were anciently Donative. p. 24. Sect. 3. and p. 29. Sect. 8. Their Patronage is in the King. ibid. How the Bishoprics of Wales became annexed to the Crown of England. p. 28. Sect. 6. They were erected into Baronies by King William the Conqueror. p. 35. Sect. 19.
- Blasphemy, what; whence so called; Threefold, the severe Punishments inflicted thereon. p. 559, 560. Sect. 1, 2, 3.
- Bona Notabilia, what. p. 104. Sect. 6.
- Bricks, whether Tithable. p. 390.
- Broom, in what Case Tithable or not. p. 390.
- Buck and Do, not Tithable, yet payable for Tithe. p. 361. Sect. 20. and p. 380. Sect. 75.
- Bull, or the Popes Bull, whence so called. p. 341. Sect. 3.
- Burial in the Body of the Church, who hath right to License it. p. 139. Sect. 5. Whether anything payable to the Parson for Burial of him out of his Parish, that died in his Parish. p. 188. Sect. 5.
- Burglary to enter a Church by Night with an intent to steal. p. 141. Sect. 8.
-
C.
- CAerlegion in Wales, anciently the Metropolis of Britannia Secunda. p. 16. Sect. 4.
- Calves, how Tithed, and when, and what kind of Tithes they yield. p. 390.
- Camois, or Sir John de Camois, the remarkable Case of his demising his Wife. p. 474. Sect. 11.
- Canon -Law, when and how first introduced into England. p. 129, &c. Sect. 44. Where and by whom it was first read in this Kingdom. p. 132. Sect. ibid. Whether it be any part of the Law of England. p. 585, 586. Sect. 3. p. 131. Sect. 44.
- Canons anciently made by the Kings of this Realm without the Pope. p. 6. Sect. 8. They were ever called the Kings Canons, not the Bishops. p. ibid. They cannot be made, nor oblige the Subject without the Royal assent. p. 7. Sect. 11. and p. 99. Sect. 2. They may not be repugnant to the Kings Prerogative, nor to the Laws or Customs of the Realm. p. ibid. p. 9. Sect. 14. p. 163. Sect. 5. p. 192. Sect. 15. p. 589. Sect. 6. What Canons in force. 1 Ed. 6. p 585. Sect. 2. They are the Ecclesiastical Laws of the Land. p. 112. Sect 9.
- Canterbury, anciently the Royal City of the Kings of Kent. p. 13. Sect. 1. when first declared to be the Metropolitan Church of England, Scotland, and Ireland. p. 20 Sect. 13.
- Cathedrals, whence so called. p. 347. Sect. 1.
- Cathedraticum, what; and how it differs from Procurations; p. 72. §. 9. the original thereof. ib.
- Cattle, in what cases tythable or not, and the Herbage thereof. p. 390, 391. p. 366. Sect. 33. p. 367. §. 35. whether young Cattle are tythable. ib. p. 370, 371. §. 43. whether the Herbage of Barren Cattle be tythable. p. 373. §. 46.
- Caveat entered against an Institution to a Benefice, whether it makes void such Institution made after the entering of the Caveat. p. 276. §. 34. p. 280. §. 18 whether a Caveat entered in the life time of an Incumbent be void. ib.
- Cautione admittenda, what that Writ imports, and the effect thereof in Law. p. 648. §. 10.
- Certificate of the Bishop, requisite in a Plea of Bastardy. p. 484. §. 13. in what Case traversable. p. 88. §. 12.
- Cession, what. p. 286. §. 9. where Cognizable. p. 122. §. 11.
- Chalk, whether tythable. p. 391.
- Chancel, by whom to be repaired, p. 143. §. 10. p. 175. §. 4. In whom the Freehold thereof 〈◊〉 . p. 150. §. 22.
- Chancellor of a Diocese a description of his Office. p. 81. §. 1. What matters cognizable by him. p. 85. §. 10. The original and use of that Office p. 81, 82. §. 2. What the Canons enjoin concerning such p. ibid. §. 3. Why called the Bishops Vicar General. p. 81. §. 1. Whether a Divine not experienced in the Civil and Canons Laws may be a Chancellor p. 82, 83. §. 4.
- Chaplains, whether the King, Queen, Prince, and Children of the Blood Royal, may retain as many as they please. p. 294. §. 3. How many the Archbishop of Canterbury may retain. ibid, & p. 21. §. 13. and p. 32. §. 13. How many retainable by a Bishop, ib. How many by a Duke, Marquess, Earl, and other persons of honor, p. 294. Sect. 3.
- Chapel, whence that word p. 145, 146. Sect. 15. How many kinds thereof. ibid. What a Chapel of ease, and what a Free Chapel is, and by whom visitable. Sect. ibid. The Imperial Law touching the building of Chapels. p. 146. Sect. 17.
- Chapter, what, p. 56. Sect. 8, &c. The difference between Capitulum and Conventus. p. 58. Sect. 9.
- Charles Martell, the first that violated the Church in point of Tithes. p. 354. Sect. 7.
- Charter of William the Conqueror touching Consistories. p. 84. Of King John touching the Election of Bishops. p. 183. Sect. 10. Of King H. 8 touching Pentecostals. p. 74.
- Chaunter and Chauntry, what. p. 392, &c. Sect. 6. Certain differences in Law touching Chauntries. p. 331. Sect. 8.
- Che • se, in what Case to be Tithed or not. p. 391.
- Cherry-Trees, where adjudged Timber and Tithe-free. p. 392.
- Chicken, how Tithable or not. p. 392.
- Child, how reputed legitimate or not, as to the time of it's Birth in computation from the time of its conception. p. 484. Sect. 12.
- Chorepiscopi, what. p. 30. Sect. 11.
- Christmas -day, whether Arrests may be made thereon. p. 115. Sect. 12.
- Church, none such in Law until Consecration, p. 142. Sect. 9. Anciently a Sanctuary, p. 141. s. 8. Threefold, p. 136. s. 1. Church -Lands prohibited by the Imperial Law from being alienated, p. 136. s. 2. In whom the Freehold of the Church and Churchyard is, p. 137. s. 3.
- Churchwardens, by whom Eligible, and wherein their Office consists, p. 160, &c. Sect. 1. p. 162. s. 4, 5. p. 168. s. 21. & p. 166. s. 14. Whether they are a Corporation in Law, p. 162, 163. s. 5. & p. 164. s. 11. and whether as such they may take Lands to the use of the Church, p. 167. s. 17. & p. 168. s. 22. What power they have touching Seats in the Church, p. 140, 141. s. 7. What Actions may lie for or against them, p. 161. s. 2. p. 163. s. 7, 8. p. 167. s. 18. p. 168. s. 20. p. 186, 187. s. 3. Before whom they are to make their Account, p. 161. s. 1. p. 166. s. 16. & p. 167. s. 19. Whether the New Churchwardens may have Action for Trespass done in their Predecessors time, p. 162. s. 3.
- Cistercians, discharged of Tithes, p. 401. Their Privilege in respect of Synodals, p. 72. s. 9.
- Citation, whether it may issue originally out of the Archbishops Consistory, to any not inhabiting within his Diocese or Peculiar, without License first obtained from the Diocesan, p. 20. sect. 12. p. soi. s. 3. p. 105. s. 6.
- City, what properly, p. 15. s. 3.
- Clay, whether Tithable, p. 392.
- Clergy, whence so called, p. 61. s 1. Margent. What their Privileges, p. 193, &c. s. 18.
- Clerico capto per Statututum Mercatorum, what that Writ imports, p. 648. s. 12.
- Clerico convicto commisso Goalae in delectu Ordinarii deliberando, what that Writ signifies, p. ibid. s. 13.
- Clerico infra Sacros Ordines constituto, non eligendo in Officium, what the use and end of that Writ, p. ibid. sect. 11. & p. 652. s. 26.
- Clothes Fulled in a Fulling-Mill, whether Tithable, p. 392.
- Coals, whether Tithable, p. ibid.
- Coat-Armor in a Church, whether Action lies against such as pull it down, and for whom, p. 139. sect. 5. p. 150. s. 22. p. 154. s. 35. p 156. s. 38. p. 157. s. 42.
- Collation, what, p. 252. s. 1. How it differs from Presentation and Institution, ibid. It is only in Right of the Patron, p. 254. s. 3.
- Commendam, what, p. 230, 231. sect. 1. Threefold, p. ibid. & p. 232. s. 3. The Law touching Commendams, p. 232. sect. 4, &c.
- Commissary or Commissarus Foraneus, what p. 81. Sect. 1. & p. 83. S. 5. and p. 89. Sect. 15. Whether the Grant of a Commissary 's place or the reve •• an thereof by a Bishop, shall bind his Successors, p. 90, 91. Sect. 17, 8. Whether the Office of a Commissary may be granted to a Lay-person, p. 90 91. Sect. 18. p. 89. Sect. 15.
- Common of Estovers, whether Tithable, p. 392.
- Commposition in reference to Tithes, what the Law therein, 392, 393. For a man's life, whether good without Deed, p. 372. Sect. 45. For one year, or more, whether good without Deed, p. 377. Sect. 61.
- Commutation for Penance justifiable by Law, p. 89. Sect. 14.
- Confirmation of Bishops, what, p. 44. Sect. 3, 4. The form thereof, ib. and p. 25, 26.
- Conge d'Eslire, what, p. 29. Sect. 7. p. 42. Sect. 1. The original thereof, ibid. Restrictions thereof, p. 29. Sect. 8.
- Consecration of Bishops, what, p. 46. Sect. 1. The manner how, and the ancient solemnity thereof, p. 25, 26. Sect. 4. It is Character indelebilis, p. 49. Sect. 6. The Scandal forged by the Romanists, touching Consecration of Bishops in England, p. 27. Sect. 4. How Churches were anciently consecrated, p. 47, 48. Sect. 3, 4, 5.
- Consent to the 39 Articles, what not good, p. 163. Sect. 8.
- Consistory, what, p. 83. Sect. 5, 6. Whence the word derived, and the diverse significations thereof, p. 83, 84. Sect. 6. Constituted by Willam the Conqueror, p. 84. Sect. 7. The Original and Antiquity of Consistories, p. ibid. Sect. 7. The difference between Consistorium and Tribunal, p. 85, Sect. 9.
- Consolidation of Churches, what, and whence so called, p. 169. Sect. 1. How distinguished in Law. p. 172. Sect. 6. How many ways it may be. p. 170. Sect. 2. The reasons or grounds thereof in Law. p. 170, Sect. 3. The legal requisites in order thereto. p. 171. Sect. 4.
- Constitutions of Claringdon, in order to Church-government. p. 100. Sect. 2.
- Consultation, in what Cases it hath been awarded. p. 116. Sect. 12. p. 165. Sect. 11. p. 125. Sect. 31. p. 141. Sect. 7. p. 143. Sect. 10. p. 144 Sect. 12. p. 193. Sect. 17. p. 393. Sect. 27. p. 376. Sect. 56. p. 379. Sect. 71. p. 380. Sect. 73. p. 174. Sect. 1. p. 385. 394. 401. 410. 413. 414. 415. 420. 422. p. 426. 431. 435. 450. 453. 459. 463. 464. 506. Where a Consultation is awarded after a Prohibition, there no new Prohibition to be on the same Libel. p. 116. Sect. 112.
- Convocation Court, what. p. 98. Sect. 2. p. 586. Sect. 4. How and by whom convened. p. 99. Sect. 2. p. 586. Sect. 4. The Antiquity, Power, Privileges, and Jurisdiction thereof. ibid.
- Conies, Taken in a Warren, whether Tithable. p. 393. They are not Tithable of Common right. p. 375. Sect. 53.
- Corn, The Law in reference to the Tithes thereof, p. 393, 394, &c. A Case in Law touching Corn set out for Tithes, and left by the Parson on the Ground. p. 362. Sect. 23.
- Costs of Suit, in what Case not given upon failure of proof of a suggestion within the six months. p. 378. Sect. 66. Costs obtained by Churchwardens in a Suit for Reparations, are to the use of the Church. p. 144. Sect. 12. Costs of Suit discharged by a Pardon relating before the Taxation thereof. p. 116. Sect. 12.
- Covent, anciently a Corporation. p. 328. Sect. 4.
- Councils, to whom the power of calling and dissolving them belongs. p. 5. Sect. 7. The several kinds thereof. p. 584. Sect. 1. Sect. 8. A Catalogue of Councils and Synods. p. 592, &c.
- Courts Ecclesiastical, the several kinds thereof. p. 96. Sect. 1, &c.
- Court of Augmentations, what. p 333. Sect. 10.
- Cowes yielding Milk, whether Tithes due for their Pasture. p. 396.
- Cranmer, when and how he became Archbishop of Canterbury. p. 18. Sect. 8.
- Cuckold, whether Action lies for calling one Cuckoldly Knave, and where. p. 521. Sect 15. p. 520. Sect. 12.
- Curate, whether he may prescribe against the Parson. p. 376. Sect. 56.
- Curtelages, whether Tithes are due out of such. p. 396.
- Custom in reference to Tithes, how it differs from Prescription. p. 396. What Customs not Triable in the Ecclesiastical Courts. p. 120 Sect. 17.
-
D.
- DAmmages, who shall have them Treble, and in what Case, p. 381. Sect. 76. p. 380. Sect. 72.
- Darrein Presentment, what that Writ imports, in what Case it lies, wherein it differs from a Quare Impedit, and when it abates. p. 644. Sect. 1. p. 648. Sect. 17.
- David, Uncle to King Arthur, succeeded Dubritius in the Archbishopric of Caerlegion in Wales. p. 17. Sect 6.
- Dean, what; why so called. p. 51. Sect. 1. The several kinds thereof. ibid. Sect. 2. and p. 54. Sect. 4. What Dean and Chapter signifies. p. 51. Sect. 1. Whether they are a Body Politick, Spiritual or Temporal, p. 366, 367. Sect. 34. Dean of the Arches, whence so called. p. 103. Sect. 4. Deans Rural, what, p. 33. Sect. 1. A Lay-man, once Dean of Durham. p. 367. Sect. 34.
- Deanery, whereof it consists. p. 55. Sect. 7. Whether Deanaries are understood as Benefices with Cure. p. 200. Sect. 13. p. 286. Sect. 6. Whether a Deanery may be a Dispensation be held in Commendam with a Bishopric, p. 112. Sect. 10.
- Decimae Majores, & Minores, what and to whom payable, p. 398.
- Decrees and Decretals of the Canon Law, when first published here in England. p. 129. Sect. 44.
- Deer, whether Tithable, p. 375. Sect. 53. and p. 398.
- Defamation, what, and where Cognizable, p. 515, &c.
- Degradation, what, p. 309. Sect. 8. May be done two ways, ibid.
- Deprivation, what, p. 306. Sect. 1. The causes thereof, p. 206, 207. Sect. 2. Where cognizable, p. 122. Sect. 21. Whether a Bar to Tithes due before, p. 398. Whether the Church be void, pending the Appeal from a Sentence of Deprivation, p. 314. Sect. 17.
- Delegates -Court, how Constituted, p. 117. Sect. 13. Whether they may Excommunicate, or grant Letters of Administration, p. ibid.
- Dilapidation. what, p. 173. Sect. 1, 2, 3. The remedies in Law against it; and how many ways it may happen, ibid. Whether it be a sufficient cause of Deprivation, p. 175. Sect. 5, 9. and p. 315. Sect. 19.
- Diocese, whence that word derived, p. 101. Sect. 3. What it properly signifies, p. 275. Sect. 8.
- Discharge of Tithes, how many ways it may be, p. 398. In what Cases it may be, or not, p. 358. Sect. 12. p. 368. Sect. 38.
- Dispensation, the true definition thereof, p. 112. Sect. 9. By whom Dispensations may be granted, and in what Cases, p. 107, &c. Sect. 8. Anciently had from the Court of Rome. ibid. It may be without the word [ Dispensamus] p. 302. Sect. 18. They are grantable by the King, qua talis, p. 5. Sect. 7. p. 109. Sect. 8. The granting thereof is eminently in the Crown, p. 6. Sect. 9. The Archbishop of Canterbury may be Statute grant them, ibid. p. 19. Sect. 11. The difference between such granted by the Pope formerly, and those granted by the King now, p. 293. Sect. 2. In what Case grantable by the Guardian of the Spiritualties, p. 40. Sect. 3. What remedy in Law in Case he refuse so to do, ibid.
- Divorce, what, 493. Sect. 1. The Causes thereof, ibid. Whether (if for Adultery ) it dissolves the Marriage à vinculo, p. 495. Sect. 3, &c.
- Donative Churches, what, p. 202. Sect. 16. The Original thereof, p. ibid. By whom visitable, p. 34. Sect. 18. The Law concerning Donatives, p. 262. Sect. 18. How they cease to be such, and become Presentative, p. 201. Sect. 16. and p. 263. Sect. 21. Whether a Donative in the Kings gift may be with Cure of Souls p. 218. Sect. 23.
- Dotards, whether Tithable, p. 405.
- Doves in a Dove-house, what Tithes they pay, p. ibid.
- Druids, their Idol-Temples, when first abolished in England, p. 16. Sect. 4.
- Drunkard, whether actionable to call one so, p. 516. Sect. 3. p. 521. Sect. 14.
- Dubritius, Archbishop of Carlegion in Wales, p. 17. Sect. 6.
- Duplex Querela, what, p. 275. Sect. 8.
-
E.
- ECclesia, whence that word derived, p. 136. Sect. 1.
- Ecclesiastical Laws of England, the Antiquity thereof, p. 129, &c. Sect. 44.
- Edgar King, his Zeal for the Church in his Oration to the Clergy of England, p. 97. Sect. 1.
- Eggs, how, when, and in what Case Tithable, p. 405.
- Election of Bishops, how and by whom to be made, p. 43. Sect. 2.
- Eleutherius Pope, what style be gave K. Lucius, p. 4. Sect. 4. p. 111. s. 8.
- Elopement, what it signifies, p. 508. Sect. 13.
- Episcopal Authority derived from the Crown, p. 30. Sect. 10. Episcopal Jurisdiction endeavored to be taken away, p. 36, 37. Sect. 2.
- Episcopocide in a Clerk, Petty Treason, p. 35. Sect. 19.
- Estovers burnt in a house, whether Tithable, p. 372. Sect. 46. p. 392.
- Ethelbert, King of Kent, by whom Canterbury was given to St. Austin for his See, p. 13. Sect. 1. p. 17. Sect. 5. Whether he built St. Paul's Church in London, p. 17. Sect. 7.
- Ethelwolph, Son and Successor to Egbert, the first sole King of England; he was Bishop of Winchester, p. 36. Sect. 19. And the first that enriched the Church of England with Tithes, p. 348. Sect. 1.
- Euginus, whether he were the first that styled himself Pope, the first that consecrated Churches, and the first that decreed Godfathers and Godmothers in Baptism, p. 49. Sect. 7.
- Examination, when and by whom to be performed, p. 270 Sect. 1, 3.
- Excommunication, what, p. 624. Sect. 1, 2. Twofold, ibid. What intended by Excommunication ipso facto, p. 626. Sect. 4. What the causes in Law of That Excommunication, p. 628. Sect. 8. In what manner Excommunication is to be pronounced, p. 626. Sect. 6. By whom it is to be certified, and how, p. 635. Sect. 18. Whether the Ordinary may take Bond of an Excommunicate, for his submission in order to absolution, p. 637. s. 25. whether Excommunication in a Patron, be sufficient cause for a Bishop to refuse the Clerk presented by such Patron, p. 266. Sect. 32.
-
F.
- FAculty, or Court of Faculties, or Faculty Office, what, p. 107. Sect. 8. The Archbishop of Canterbury impower'd by the Statute to grant Faculties, ibid. and p. 19. Sect. 11. The force and efficacy thereof to Commendams or two Benefices, p. 107, 109, 110. Sect. 8. The difference between a Faculty to Take and a Faculty to Retain a Benefice, p. 110. Sect. 8.
- Fallow -grounds, whether Tithable, p. 405.
- Fees for Probate of Testaments, what due by Statute, p. 105, 106. Sect. 6.
- F • nny -Lands drain'd, whether they pay Tithes presently, p. 406.
- Ferae naturae, Creatures of that kind, whether Tithable, p. 405.
- First-fruits, by and to whom payable, p. 337. Sect. 2. vid. Annates.
- Fith taken in the Sea, or in a River, Pond or Piscary, whether Tithable, and how, p. 406. and p. 367. Sect. 36. p. 379. Sect. 68. p. 375. Sect. 53.
- Flamins, how many anciently in England, p. 16. Sect. 4.
- Flax, what Tithes it pays, and when, p. 407.
- Forest -Lands, whether Tithable or not, and by whom, p. 407, 408. Not scituate in any Parish, to whom the Tithes shall be paid p. 408. Whether Priviledg'd from Tithes, whilst in the Kings hands, otherwise in the Subjects, p. 369. Sect. 41. Whether they are Priviledged from Tithes, if in the hands of the Kings Patentee or Grantee, p. 399. 401.
- Fowl taken, in what Case Tithable or not, p. 408.
- Fraud in setting forth Tithes, whether treble damages in that Case p. 380. Sect. 72. p. 381. Sect. 76.
- Freehold f the Church or Chancel, in whom it is, p. 137. Sect. 3. p. 83. Sect. 4. p. 139. Sect. 5. p. 142. Sect. 9. p. 150. Sect. 22. p. 151. Sect. 25. p. 155. Sect. 38.
- Frigidity in the Man pleaded by the Woman, how the Civil Law proceeds thereon, p. 493. Sect. 1.
- Fruit -Trees, what Tithes they pay, and when, p. 408.
- Fuise, whether Tithable, p. ibid.
-
G.
- GArba, or Decima Garbarum, what it signifies, p. 381. Sect. 78.
- Gardens, how Tithable, p. 409. p. 371. Sect. 43.
- Geoffrey Plantaginet, Son to King H. 2. was Bishop of Lincoln, p. 36. Sect. 19.
- Glass-windows Painted in the Isle of a Chapel, if pulled down, whether Actionable, p. 138. Sect. 5.
- Gleab, what, p. 409. The Law concerning the Tithes thereof, ibid. & p. 410. Gleab of a Parsonage Impropriate and Leased, whether Tithable, ibid. & p. 368. sect. 38. Whether Gleab in Lease pays Tithe, p. 362, 363. s. 26. Whether the Freehold of the Gleab, during a Vacancy, be in the Patron or not, p. 183. s. 9. Gleab manured and sowed by an Incumbent that dies before Harvest, who shall have the Corn, p. 318. s. 3.
- Godfathers and Godmothers in Baptism, the Original thereof, p. 49. s. 7.
- Grain, pays a Predial Tithe, p. 411.
- Grant of Tithes, whether good without Deed, p. 386.
- Grass, what Tithes that pays, and how, p. 410, 411. Grass-cocks Tithed, p. 374. s. 50.
- Grave-Stone taken away, whether Actionable, and where, p. 157. s. 42.
- Gravel, whether Tithable, p. 411.
- Grounds lett to Strangers out of the Parish, who answers the Tithe, ibid.
- Guardian of the Spiritualties, his Office, and by whom Constituted, p. 39. sect. 1. p. 41. s. 4, 5. His power in the vacancy of an Archbishopric, p. 40. s. 2. What Remedy in case he shall refuse to grant Faculties or Dispensations, where they may or ought to be granted, p. 40. s. 3.
-
H.
- HAlimots, anciently what, p. 97. Sect. 1.
- Hay, the Law touching Tithe- Hay, p. 412, 413. Whether the Tithes thereof may belong to the Vicar, p. 381. s. 77. Two Crops of Hay from the same ground the same year, whether both Tithable, p. 412.
- Hazel, Holly, Willows, and Whitethorn, in what cases they may be Tithable or not, p. 377. s. 62.
- Head-Lands, whether Tithable, p. 359. s. 16. p. 369. s. 39. p. 374. s. 52.
- Hearth-penny, the ancient Custom thereof, p. 367. sect. 35. p. 372. s. 46.
- Heath, Furse, and Broom, in what cases Tithable or not, p. 413. Barren Heath -ground, in what sense excused of Tithes for the first Seven years, p. 375. s. 53.
- Hedging and Fencing -Wood, whether Tithable, p. 370, 371. s. 43.
- Hemp, what Tithes that pays, p. 413. & p. 366. s. 32.
- Heyfers, whether Tithes due for the Herbage thereof, p. 370. Sect. 43.
- Henry de Blois, Brother to King Stephen, was Bishop of Winchester, p. 37. Sect. 16.
- Henry de Beaford, Brother to King H. 4. was also Bishop of Winchester, p ibid.
- Herbage, what, and how Tithable or not, p. 370, 371. Sect. 43. & p. 413. Herbage of Sheep, whether Tithable, p. 464.
- Heresy, what, and whence the word derived, p. 560, 561. Sect. 4. Threefold, ibid. Where Cognizable, p. 561, 562. Sect. 6. How punished, p. 562, 563. Sect. 7. It is Lepra animae, ibid.
- Heretics, an Alphabetical Catalogue of such; their Errors and Heresies; the Times and places when and where broached; and the Councils wherein they were condemned, p. 164, 165, &c.
- High Commission -Court, the Constitution thereof, p. 11, 12. Sect. 14. What the power thereof was, p. 118. Sect. 14.
- Hoel-Dha, his Law against fighting in the Church-yard, p. 140. Sect. 6.
- Honey, whether and how Tithable, p. 413, 414.
- Hoods to be worn by Proctors in the Arches, when and by whom first enjoined, p. 103. Sect. 4.
- Hops, what Tithes they pay, and how Tithed, p. 414. Whether Great Tithes to the Parson, or Small Tithes to the Vicar, p. 366. Sect. 32. Whether they may not belong to the Vicar by Prescription, p. 381. Sect. 77. The difference in Kent (as to Tithes) between Hops in Orchards, and Hops in Gardens, p. 366. Sect. 32.
- Hop-poles, whether the Wood thereof Tithable or not, p. 414.
- Horses for Husbandry, whether their Pasture be Tithable, p. 371. Sect. 43.
- Hospitallers, either Lay or Spiritual, by whom Visitable, p. 34. Sect. 18. They were discharged of Tithes, p. 402.
- Houses being Dwelling Houses, where Tithable, p. 414, 415.
- Hubert, Archbishop of Canterbury, p. 7. Sect. 11.
- Hundred -Court, the Antiquity thereof, and Extent anciently of its Jurisdiction, p. 96. Sect. 1. p. 84. Sect. 7.
-
I
- JAde, to call one Welch Jade, whether Actionable, and where p. 522. Sect. 17.
- Jealousy, how the Civil Law proceeds therein, p. 472. Sect. 7.
- Ideocy, in what case Triable in the Ecclesiastical Court, p. 120. Sect. 17.
- Jewish Heretics, who such anciently, and what their Heresies, p. 580, &c. Sect. 9.
- Impotency in a Man, how to be proved, p. 493. Sect. 1.
- Impropriations, how many within York Diocese, p. 14. Sect. 2. vid. Appropriations.
- Ina, the Saxon King, whether he the first that gave Peter-pence to the Pope, p. 112. Sect. 8. His Law against Striking in the Church, p. 140. Sect. 6.
- Incumbent, what, p. 317. Sect. 1. Legal Requisites to make a Compleat Incumbent, p. ibid. His Rights, p. 318. Sect. 2.
- Indians, their severe punishment of Adultery, p. 471, 472. Sect. 6.
- Indicavit, what that Writ imports; the end and use thereof; in what cases, and for whom it may be awarded, p. 647. Sect. 6. p. 439.
- Induction, what, and how executed, p. 278. Sect. 16. Whether it be a Temporal Act, and cognizable in the Temporal Court, p. 279. Sect. 17.
- Infant, if under age Admitted and Instituted to a Benefice, it is void, p. 280. Sect. 20. Whether Action lies against a Minor under Seventeen years of age for Slandering, p. 524. Sect. 23.
- Ingulphus, Abbot of Crowland, his Report touching Appropriations, p. 280. Sect. 1.
- Institution, what; the Form thereof; Requisites thereto; and what Remedy, if denied, p. 274. Sect. 8. Institutions are cognizable in the Ecclesiastical Court, p. 123. Sect. 28. The difference between the Civil and Common Law touching Institutions, p. 276. Sect. 9. Whether it works a Plenarty without Induction, p. ibid. Sect. 11. p. 280. Sect. 18. p. 281. Sect. 21.
- Ireland, until what time under the Archbishop of Canterbury, p. 20. Sect. 13.
- Isle of a Church, who may prescribe to it, p. 138. Sect. 4. or whether it may be peculiar to a Family, p. ibid. Sect. 5. p. 158. Sect. ult.
- Jurisdiction Ecclesiastical and Temporal, the Original of that distinction, p. 133. Sect. 44.
- Juris utrum, for and against whom that Writ lies, p. 205. Sect. 1.
- Jure Patronatus, what that Writ imports, p. 206. &c. How the Law proceeds therein, p. 179. s. 2. In what case the Bishop may make use thereof, and his power therein, p. 33. s. 16. At whose charge it is to be, p. 180. s. 3. What Jus Patronatus is, p. 205. s. 1.
- Jus Canonicum, the Original thereof, p. 132. s. 44.
-
K
- KAnute King, his strict Law concerning Abbots, p. 328. Sect. 3.
- Knave, whether Actionable to call one so, p. 517. s. 4. & p. 524. s. 21, 24.
-
L
- LAmbs, how Tithable, p. 416. They yield a small Tithe, and may belong to the Vicar, p. 198. Sect. 3. p. 359. s. 16. In what case they may be Great Tithes, and payable to the Parson, p. 366. s. 32.
- Lands accruing to the Crown by the Statute of Dissolutions, whether they shall pay Tithes, p. 416.
- Lapse, what, p. 242. s. 1. The Original and gradations thereof, ibid. The difference between the Common and Canon Law as to the time of Lapse, p. 245. sect. 2. When the Six Months shall commence, ibid. How the Six Months before a Lapse are to be computed by Daies, and how Notice shall be given to the Patron or not before the Lapse incurs, p. 247. s. 4. Whether a Grant may be made of a Lapse, p. 248. s. 5. A Lapse is more a Trust than an Interest, ibid. From what time the Lapse shall incur, ibid. s. 6. In what case the Lapse may incur to the Ordinary, notwithstanding a Quare Impedit brought by the Patron, p. 183. s. 10.
- Lapse made by one Bishop de facto during the life of another de jure, of the same Diocese, whether good, p. 38. s. 23. Leases of Tithes, whether Triable in the Ecclesiastical Court, p. 127. s. 140. They must be by Deed, not Parol, p. 382. s. 81. Leases made by Parsons, p. 199. s. 10. Cases at Common Law touching the same, p. 190. s. 10, 11. p. 193. s. 17.
- Legacies, properly suable for in the Ecclesiastical Court, p. 113. sect. 11. p. 125. s. 34. & p. 126. sect. ibid.
- Legates of the Pope, of Three sorts, p. 20. s. 12. p. 102. s. 3. Legatus Natus, what it imports, and who were such in England, p. 20. s. 12. p. 21. s. 13. & p. 105. s. 6.
- Lessee to Parson and Vicar, whether he may Sue for the Tithes in one Action, or must divide his Actions, p. 381, 382. s. 80.
- Letter expressing the Grant of the Next Avoidance, vain and ineffectual, p. 285. s. 4.
- Libel, whereof a true Copy denied, is ground for a Prohibition, p. 122. Sect. 24.
- License to carry away Tithes without setting them forth, given by a Collector of Tithes, whether good, p. 379. s. 71.
- Lime, Marle, Slates, or Tiles, whether Tithable, p. 417.
- Lind wood, what he was, and when his Provincial Constitutions were compiled, p. 208. s. 5.
- Litigious, how many ways a Church may so become, p. 181, 182. s. 6.
- Lollards, what they were, and why so called, p. 561. s. 5.
- London, anciently an Archbishopric, p. 17. s. 7. The Metropolis of Britannia Prima, p. 16. s. 4. The Archiepiscopal See thereof removed and placed at Canterbury by the Saxons, p. ibid.
- Lops of Trees, whether Tithable after Twenty years growth, p. 417.
- Lucius, First Christian King of Britain, p. 15. s. 4. By whom Converted to the Christian Faith, ibid. When Baptized, p. 16. s. 4.
-
M
- MAhumetans, their severe punishment of Adultery, p. 471. Sect. 6.
- Malum in se and Malum prohibitum, the Legal difference between them, p. 10. s. 14. p. 187. s. 4.
- Marriage after Divorce, altera parte existente, whether lawful, p. 495. s. 3, &c.
- Marsh -Lands, or Fenn -Lands, newly gained from the Sea, whether under the notion of Barren Lands, as to any discharge of Tithes, p. 387.
- St. Martins Le grand, London, whether it be an Ecclesiastical Benefice, p. 202. s. 16.
- Mast of Oak, or Beech, whether Tithable, and how, p. 417.
- Masters of Chancery, what they were anciently, and why so called, p. 550. s. 21.
- Meadows over-run with Thorns and Bushes, whether Tithable, p. 417.
- Metropolitan, why so called, the derivation of that word, p. 15. sect. 3.
- Midwives questioned in the Ecclesiastical Court for exercising that Calling without a License from the Ordinary, whether Prohibition lies, p. 126. s. 36.
- Milk paying Tithes, exempts the Cheese from payment thereof, p. 391, 420.
- Milch-kine, whether their Pasture be Tithable, p. 372. s. 44.
- Mills,