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CHAP. VII.

Of Deans and Chapters.

1. What a Dean is, why so called; what Dean and Chapter signifies; and what Deans Rural arc.
2. The Division of Deans according to the Civil and Canon Laws; a Question in Law touching the Deanery of St. Martins.
3. Two ways of Creating Deans; and in what other senses the word or style of Dean is applicable.
4. Four sorts of Deans according to the Law of the Land.
5. The Patronage of Deanaries is in the Crown.
6. The Dean and Chapter of a Cathedral, is a Corporation Spiritual.
7. A Deanery consists of two parts; The difference between a Dean, Prebend, and Parson; and that Deanaries and Archdeacomies are Ecclesiastical Dignities.
8. Chapter, what; the several Acceptations of that word.
9. The difference between Capitulum and Conventus in the Canon Law.
10. The description of a Chapter as to their Constitution and Government.
11. Whether one Bishop may have two Chapters?
12. Whether the Lease of a Parsonage in one Diocese, annexed to a Prebend in another, made by that Prebend, be good without the Confirmation of that Bishop in whose Diocese the Parsonage is?

(1.) DEAN ( 〈 in non-Latin alphabet 〉 , decem ) is an Ecclesiastical Magistrate, so called, because anciently he presided or had power over Ten Canons or Prebends at the least. Sed dicuntur Decani Rurales, eo quod Decem Clericis five Parochiis praesint. Secund. Papiam, Lindw. de Constit. verb. Decan. Rurales gloss. Dean Rural, because he usually had charge over Ten Country Parishes. Anciently also called Archipresbyter, because other Presbyters were under his charge. Here in England he is commonly called a Dean who is next under the Bishop, and Chief of the Chapter ordinarily in a Cathedral Church, the rest of that Ecclesiastical Society or Corporation being called Capitulum, the Chapter. Dean and Chapter is a Body Corporate Spiritual, consisting of many able persons in Law, viz. the Dean (who is Chief) and his Prebends, and they together make the Corporation. And as this Corporation may jointly purchase Lands and Tenements to the use of their Church and Successors: so likewise every of them severally may purchase to the use of himself and his Heirs. After the death of a Prebend, the Dean and Chapter shall have the Profits And after the death of a Dean of a Free Chapel belonging to the King, the King shall have the Profits of the Deanery; for it is at the pleasure whether he will Collate a new Dean to it It is likewise held, that a Deanery is a Spiritual Promotion, and not a Temporal, by all the Judges And if the Nomination and Patronage of a Deanery be at the appointment of the King, his Heirs and Successors, and he appoint a Dean, yet it is a Spiritual Promotion The King makes the Corporations of Dean and Chapter The Chapter of the Bishop consists of a Dean as the Chief, and of the Prebendaries, or the like, which are commonly called the Chapter As to the Bishop and Chapter, which are but one Body, their possessions are divided, so as the Bishop hath a part for himself, and the Chapter the residue And their Possessions also for the most part are divided, the Dean having one part alone in right of his Deanery, and each particular Prebendary a certain part in right of their Prebends: the residue the Dean and Chapter have alike; and each of them is to this purpose incorporate by himself In the Cathedral Churches of St. David and of Landaff; there never hath been any Dean, but the Bishop in either is Head of the Chapter; and in the Bishops absence, in the Chapter at St. David's and at Landaff, the Archdeacon. There are also some Deans in England without any Jurisdiction, only for Honor so styled; as the Dean of the Chapel Royal, and Dean of the Chapel of St. George at Windsor: And some Deans there are without any Chapter, yet enjoying certain Jurisdictions, as the Dean of Croydon, the Dean of Battle, the Dean of Bockin, &c. In the Case of the Dean and Chapter of Norwich it is said, That in Christian Policy it was thought necessary, (for that the Church could not be without Sects and Heresies) that every Bishop should be assisted with a Council, viz. a Dean and Chapter, (1). To Consult with them in deciding of difficult Controversies of Religion; to which purpose every Bishop habet Cathedram. (2). To Consent to every Grant the Bishop shall make to bind his Successors; for the Law did not judge it reasonable to repose such confidence in him alone. At first all the Possessions were to the Bishop, afterwards a certain portion was assigned to the Chapter; therefore the Chapter was before they had any Possessions, and of Common right the Bishop is Patron of all the Prebends, because their Possessions were derived from him. So that so long as the Bishopric continues, the Dean and Chapter (being his Council) remains. This word [ Dean ] is diversely used by Lindwood who speaking of Dean-Rurals describes them to be certain persons that have certain Jurisdiction Ecclesiastical over other Ministers and Parishes near adjoining, assigned unto them by the Bishop and Archdeacon, being placed and displaced by them: Such are the Dean of Croydon in Surrey, the Dean of Battle in Kent, the Dean of Burian in Cornwall, &c. These Deans Rural are Decani Temporales, Constituted to some Ministerial Function under the Bishop or Archbishop They are certain Ecclesiastical persons having certain Offices commonly belonging to the Bishop and Archdeacon, and therefore to either of them belongs the receiving or removing of them; and their Office is temporal, not perpetual, as is the Office of the Deans of Cathedral and Collegiate Churches, and other Churches quibus perpetuo intitulantur

(2.) The Civil and Canon Laws do chiefly take notice but of three sorts of Deans; the one, he who is impower'd and set over Ten Soldiers Another, he who is called Dean Rural, as aforesaid The third is, a Dean of a Cathedral or Collegiate Church, as abovesaid There is also the Deanery of St. Martin le Grand, Lond. concerning which Lindwood puts the question, Whether it be such an Ecclesiastical Benefice as in effect may incur such penalties, as may possibly happen to other persons Beneficed? And after deep enquiries into the Laws, Presidents, and Antiquities Forreign and Domestic, with very delectable variety of great Learning hinc inde argumentatively, and pro & con impartially, at last doth conclude it in the Affirmative. Lindwood, Constit. tit. de Cohab. Cleric. & Mul. c. ut Clericalis, verb. Beneficiati.

(3.) As there are two Foundations of Cathedral Churches in England, the Old and the New: (the New being those which King Hen. 8. upon the suppression of Abbeys, transformed from Abbot or Prior and Convent, to Dean and Chapter ) So there are two ways or means of Creating these Deans; for those of the old Foundation were raised to their Dignity much like Bishops: the King first issuing and granting his Conge d'Eslire to the Chapter, the Chapter thereupon making their Election, the King then yielding his Royal Assent, and the Bishop Confirming him, and giving his Mandate to install him. But those of the New Foundation are by a much shorter course install'd by virtue of the Kings Letters Patents, without either Election or Confirmation. Deans of the Old Foundation (before the suppression of Monasteries) arrive to their Dignities much like Bishops: But Deans of the New Foundations (upon suppression of Abbeys or Priories, transformed by H. 8. into Dean and Chapter ) are by a shorter course Installed by virtue of the Kings Lett. Pat. Without Election or Confirmation, it was said by Hobart in Briggs Case, That a Dean and Chapter are a Body Spiritual, and annexed to the Bishop throughout all England. Briggs C. in Winch. Rep. The same word is also applied to divers that are the Chief of certain peculiar Churches or Chapels, as the Dean of his Majesty's Chapel, the Dean of the Arches, the Dean of St. George 's Chapel in Windsor, &c. Nec Collogia alicui praefecti, nec Jurisdictione ulla donati, Nomine tamen velut honocis gratia. Insignes, says the Learned Spelman.

(4.) Each Archbishop and every Bishop hath a Dean and Chapter; and whereas it was formerly said, That the Civil and Canon Laws do chiefly take notice but of three sorts of Deans, it is manifest, that there are four sorts of Deans or Deanaries, whereof the Laws of this Kingdom do take knowledge. The first is a Dean who hath a Chapter consisting of Canons and Prebendaries, as aforesaid, subordinate to the Bishop, as a Council assistant to him in matters Spiritual relating to Religion, and in matters Temporal relating to the Temporalties of his Bishopric The second is a Dean who hath no Chapter, Presentative, having Cure of Souls; he hath a Peculiar, and a Court with Ecclesiastical Jurisdiction therein; he is not subject to the Visitation of the Ordinary: Such is the Dean of Battle in Sussex, a Deanery Founded by William the Canquerour in memory of his Conquest; who though he be Presentable to the Bishop by the Patron, and admitted to the Deanery by Institution and Induction by the Bishop of Chichester, yet is exempt from his Visitation. The third is, whose Deanery is not Presentitive, but Donative, nor hath he Cure of Souls, but is only by Covenant or Condition; he hath a Court and a Peculiar, holding Plea of matters Ecclesiastical arising within his Peculiar over divers Parishes. Such a Dean constituted by Commission of the Metropolitan, is the Dean of the Arches, the Dean of Bocking in Essex, and divers others. The fourth is the Rural Dean aforesaid, having no absolute Judicial power in himself, but is only by the direction of the Bishop or Archdeacon, to order and prepare Ecclesiastical affairs within his Deanery and Precinct; the power of these Rural Deans is at this day nigh extinguished by the Office of the Archdeacon and the Bishops Chancellor; yet in some parts of this Realm it is still in force.

(5.) Of these Four sorts of Deans, the first, as was said, hath a Chapter, being an Ecclesiastical Governor Secular over the Canons and Prebendaries in the Cathedral Church, as the Dean of Canterbury, St. Paul's, &c. The Patronge of all which Deanaries is in the Crown, and doth not belong to any Subject. Also, the new Deanaries (as was formerly hinted) which were translated from Priories and Covents, or were after the dissolution of Abbeys and Monasteries Founded by King H. 8. or other Kings of this Realm are now Donative, and the Deans thereof are by the Kings Letters Patents Installed: but the Ancient Deans of Chapters are (as Bishops) by a Conge d'Eslire, and are after Confirmed by the Bishop.

(6.) The Dean end Chapter of Canterbury are, during a Vacancy of that Archbishopric, Guardians of the Spiritualties, to whom the Stat. of 25 H. 8. of Dispensations, giveth power of Dispensation when that See is vacant The Dean and Chapter of any Cathedral make a Corporation Spiritual, and at the Common Law challenges are allowed where the Issue concerns a Corporation, and they to make the Pannel, or where any of their Body are to go on the Jury, or any of kin unto them, though the Body Corporate be not directly a party to the Suit: A Dean and Chapter bringing an Assize, a Juror was challenged, because he was Brother to one of the Prcbendaries and the challenge for that reason allowed If a Dean take an Obligation to him and his Successors, it goes to his Executors; which holds true also as to a Bishop, Parson, Vicar, &c.

(7.) A Deanery consists of Two parts, viz. Officium & Beneficium; The Officium hath two parts, the one is Dignity and Jurisdiction, the other is Administration: But some Promotions are mere Administrations, as Prebends and Parsons, which are not Dignisies, because they have not Jurisdiction, 11 H. 4. But an Archdeacon hath a Dignity, because he hath a Jurisdiction So hath a Dean, to whom Anciently (according to Lindwood ) the Canons made their Confessions, Et quod Canonici quead euram animarum subsunt Decano. Lindw. de Poenit. c. 1. gloss. in verb. vel Decano, & in ver. Decanum & Capitulum. Who ought to visit his Chapter, 5. E. 3. 7. and if a Probend be made a Dean, the Prebendary is void by Cossion, 5 E. 2. F. Brieff. 800. Also a Dean may make a Substitute as to the matters of his Jurisdiction, as for Corrections, or Visitations; but not as for the other part, viz. the Administration: for which reason he cannot make a Deputy to Confirm Leases, and the like So that in a Deanery Cathedral there seems to be, (1) Dignity and Jurisdiction, (2.) Office and Administration, (3.) the Behefit or Profits thereof; which seems very clear, for that a Parson, a Prebend, or the like, hath not Dignity, but only the Office or Administration, with the Profits; but a Dean, who hath Administration as others, hath also Jurisdiction and Dignity. The Law is also the same as to an Archdeacon, 11 H. 4. 40. 7 H. 6. 27. 27 H. 6. 5. And a Writ brought against a Dean is good and sufficient without his proper Name, because it is of itself a Name of Dignity: and that a Deanery is a Dignity, appears by 5 E. 3. 9. Breve 800. as aforesaid; and it is an Office also, for that in Ancient times, a Dean took the Confessions of his Prebends, as was likewise hinted before. Also a Dean may by his Dignity make a Deputy to correct, &c. but not as to his Judicial Office, as to Confirm Leases, and the like By the Canon Law, he that is the Archipresbyter, is also called Dean, scil. Presbyterorum vel Ecclesiae. Cap. ad. haec, De Offic. Archidiac. Cano. innovamus, 60. Distinct. And because the Dean of a Church (understand it of the Roman Church) in locum Archipresbyteri subrogatus est. Rotae Decis. 451. in novis—& rursum, in Decis. 443. The Archipresbyter was so called, because he was in some certain matters and causes set or appointed over the Priests or Presbyters, and such as were of the Sacerdotal Office, specially in the absence of the Bishop; Cap. 1. & 2. De Offic, Archipresb. The Dean is such a Dignity, that the Canon Law styles him, honorabiliorem partem Capituli; Cap. post Electionem. c. 7. de Concess. Praebend. c. cum inter ca. 18. & ibi Panor. & gloss. de Elect. And in a large sense a Dean may be said to be the chief of any that are of the same state and order; Gloss. in rubr. de Decanis, lib. 12. C. & ibi Alceat. and so the Canons of the Church of Constantinople, tanquam Digniores, were by Honorius and Theodosius called Decani: L. non plures 4. de Sacros. Eccles. lib. 1. C. tit. 5. and the more honorable inter Rotae Auditores, is the Dean of the Pope's Chapel, propter Ministerium, quod vocatur Mithrae. Lud. Gomes. in proaem. ad Reg. Cancell. de Prothonotariis. The truth is, the Canon Law in express terms says, that Deconatus, or a Deanery, est Nomen speciale Dignitatis: Cap. cum illis vero, §. illis de Praebend. in 6. that is, when it refers to praeeminency in any Church Cathedral or Collegiate; Gemin. Cons. 131. nu. 5. ver. expressit. de Deconatu. For as to Deans Rural, it is otherwise: Cap. licet Canon. de Elect. in 6. the Dignity, qua talis, belonging properly to the other, viz. Decano Capituli, who is Caput principale ipsius; yet under the notion or appellation of a Chapter, the Dean thereof is not comprehended, unless he be specially mentioned or nominated: Rebuff. in Tract. nominat. q. 8. nu. 33. & Barbos in 3 Decret. c. post Electionem. de Concess. Praebend. nu. 3.

(8.) Chapter, Capitulum, so termed by the Canonists, not properly, but metaphoricaily, quasi a Little head, or a kind of Head, not only to rule and govern the Diocese in the Vacation of the Bishopric, but also when the See is full to assist the Bishop as a Council, by way of Advice in matters pertaining to the Diocese: Vid. Panor. in cap. Capitulum, extra de Rescript. The Chapter consisting of a Dean, Canons, and Prebends, is Clericorum Congregatio sub uno Decano in Ecclesia Cathedrali; or it signifies, Congregationem Clericorum in Ecclesia Cathedrali, Conventuali, Regulari, vel Collegiata. Of these Chapters some are Ancient, some New; the New are those which were founded or translated by King Henry the Eighth in the places of Abbots and Covents, or Priors and Covents: Or those which are annexed unto new Bishoprics founded by H. 8. as were Bristol, Chester, and Oxford. This word Capitulum, or Chapter, hath (in addition to the Premises) other significations in Lindwoods Provincials, where he speaks de Capitulis Ruralibus, of Chapters Rural, Lindw. tit. de Constit. cap. quia incontinentiae, gloss. verb. Capitulis Ruralibus; and there acquaints us with no less than six significations of this word. Sometimes (says he) it is taken for the place, in quo fiunt Communes tractatus Collegiatorum. Sometimes it is taken for the place, In quo fiunt Disciplinae delinquentium: Cap. Reprehensibilis in fi. Extr. de Appell. Sometimes it is taken pro Decretali vel abia certa distinctione Sacrae Scripturae: Cap. cum supr. Extr. de Sepult. Sometimes it is taken, pro Capitulis Ruralibus, as aforesaid, that is, when in Lecis minus insignibus, viz. in Rure Constitutis, known by the name of Conventus in Otho 's Constitutions: Cap. Sacramenta, ad finem, ver. Conventib. Sometimes it is taken for a Collection of persons, adinvicem de his quae eis incumbunt in Locis ad hoc assignatis tractantium; and being taken in this sense, it may be understood sometimes for persons Congregated in a Metropolitan or Cathedral Church, and sometimes for persons congregated in a Church Conventual, Regular or Collegiate: and each of these last may in a large sense be said to be a Collegiate Church, according to the description thereof, viz. That Ecclesia Collegiata est Collectio hominum simul viventium; but to speak properly, that is Capitulum, which is respectis Ecclesiae Cathedralis: That Conventus, which is respectu Ecclesiae Regularis: and that Collegium, which is respectu Ecclesiae Inferioris, ubi est Collectio viventium in Communi. And sometimes Capitulum is taken for a Collection of many persons, not living in Common, sed ob tracatus Communes inter se habendos, ad aliquem locum Constuentium; according to which, a convening together of many Rectors, Vicars, and other Ecclesiastical persons, ob tractatus communes inter se habendos, etiam dicitur Capitulum Panormitan understands it, pro Collectione seu pro Collegio ipsorum Canonicorum; but withal says, it hath divers significations, all which he comprises in this one Verse,

Distinguit, minuit, Locat, & Collectio fertur.

Distinguit, when one Subject is distinguished from another in any Tract or Treatise: Minuit, when it stands diminutively, Capitulum, quasi parvum Caput, as aforesaid, understand it secundum modum: Locat, when it is taken for the Place itself where the Canons are met or convened: Collectio, and so it is taken pro ipso Collegio, as aforesaid; Panorm. de Rescript. Extr. c. Capitum. Whereof there are three inseparable signs, as one Common Seal, one Common Stock or Treasure, and one Common Head or Rector.

(9.) By the Canon Law the words, Capitulum, Conventus, Coetus, and Concilium, are as it were Synonymous; but the terms, Capitulum and Conventus, are frequently used Promiscuously: But to speak properly according to that Law, Conventus is said to be Congregatio Ecclesiae Regularis; and Capitulum or a Chapter is said to be Congregatio Ecclesiae Secularis The word [ Chapter ] taken (as here) in a proper Canon-sense, is a name Collective, having a Plural signification; yet in reference to different things, may be accommodated as well to the Singular as the Plural.

(10.) A Chapter Ecclesiae Cathedralis, consists of persons Ecclesiastical, Canons and Prebendaries, whereof the Dean is chief, all subordinate to the Bishop, to whom they are as Assistants in matters relating to the Church, for the better ordering and disposing the things thereof, and for Confirmation of such Leases of the Temporalties and Offices relating to the Bishopric, as the Bishop from time to time shall happen to make It seems that at the Common Law, by the Gift or Grant of Lands to a Dean and Chapter (being a Corporation Aggregate) the Inheritance or Fee-simple may pass to them without the word [ Successors, ] because in Construction of Law such Body Politick is said never to die This must be understood only in reference to their taking of the thing granted, in their Politick, not Natural Capacity.

(11.) One Bishop may possibly have two Chapters, and that by Union or Consolidation, as in the Bishop of Waterford 's Case, who had the Bishopric of Lismore and the Chapter thereof united to that of Waterford: In which Case although the Chapter of Lismore, only Confirmed the Grants of Lands belonging to Lismore, and the Chapter of Waterford only confirmed the Grants of Lands belonging to the Bishopric of Waterford; yet because the Union there was not extant, the Judges held the Confirmation in manner aforesaid to be good; but otherwise all the Judges held, that both Chapters ought to have Confirmed For it seems if a Bishop hath two Chapters, both must Confirm his Leases

(12.) A Parsonage in the Diocese of W. is annexed to a Prebend in S. the Prebend makes a Lease for years, which is Confirmed by the Bishop, and Dean and Chapter of S. It was held by the Court to be good, without the Confirmation of the Bishop of W. in whose Diocese it is. In Eyre 's Case it was resolved, That Chapters are not of a capacity to take by Purchase or Gift without the Dean, who is their Head. And in the Case of Eaton-College, where a Lease was made by the Dean and Chapter of the College of Eaton, whereas they were incorporated by the Name of the Dean and Chapter of the College of St. Mary's of Eaton; Resolved, that the Lease was void for the Misnosiner. Yet, whereas the Dean and Canons of Windsor were Incorporated by Act of Parliament, by the Name of the Dean and Canons of the Kings Free-Chapel of his Castle of Windsor, and they made a Lease by the Name of the Dean and Canons of the Kings Majesty's Free-Chapel of the Castle of Windsor, in the County of Berks: Resolved, the Lease was good; For although the King in the Act of Parliament calls it his Castle, yet when another speaks of it, it is more apt to call it the Castle, and therefore such variance shall not avoid the Lease. Likewise, whereas Christ's-Church in Oxford is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxford: and they made a Lease by the Name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxford; and the Liberties de Academia did extend further than the Liberties of the City; yet it was adjudged a good Lease, because the substance of the Corporation was inserted in the words of the Lease.

CHAP. VIII.

Of Archdeacons.

1. What an Archdeacon is; his Office and Jurisdiction.
2. The several kinds of Archdeaconries; and how many in England.
3. Whence the Archdeacons power is derived, and whether a Quare Impedit doth lie of it or not?
4. In what case Action lies against an Archdeacon, for refusing to give Induction to a Clerk Instituted by the Bishop.
5. Archdeaconry not comprised under the notion of a Benefice with Cure of Souls.
6. Process of Quorum Nomina prohibited by the Canon to be issued by any Archdeacon.
7. How often an Archdeacon may have his Visitation; and what his Office or Power therein is.
8. How a person ought to be qualified, that may be an Archdeacon: It is an Ecclesiastical Dignity.
9. Cardinal Otho 's Constitution touching the Archdeacons government in his Visitations.
10. How Archdeacons are distinguished at the Canon Law.
11. Conformity thereto in the practice of the Common Law.
12. A Case at Common Law, touching a Lease for years of a Glebe made by an Archdeacon.
13. The same Case somewhat otherwise reported.
14, Whether a Quare Impedit lies of an Archdeaconry.

(1.) ARCHDEACON, from [ archos] Princeps or Chief, and Diaconos, Deacon, that is, the first or chief of the Deacons: Sum. Host. de Offic. Archid. &c. 1. de Scrut. in Ord. fac. being (according to the Canon Law) such, as hath obtained a Dignity in a Cathedral Church, to have the Priority among the Deacons, and first in Jurisdiction next after the Bishop; Sum. Host. ibid. For as of Common Right all Ecclesiastical matters within the Diocese appertain to the cognizance of the Bishop, so under him to the Archdeacon, excepting only such things as by Law are specially prohibited . And therefore is said to be dignified with this Title, for that in many things he doth supply the room of the Bishop, to whom he is in precedency to others subservient, and unto whom his service chiefly relates Every Bishop (be it Archbishop or other) hath under him an Archdeacon for the better discharge of his Cure. He hath Jurisdiction of Common right, which may vary according to Circumstances and the Custom of the place; and therefore in some cases it is Jurisdictio Ordinaria, in others it is Delegata. And although regularly (as such) he doth not exercise any Jurisdiction within the Church itself, yet it cannot be denied but that an Archdeaconry is an Ecclesiastical Dignity: Fran. de Aret. in Council. 23. His Office and Jurisdiction by the Canon Law is of a far larger extent, than is now practicable with us, otherwise we should not there find him so frequently styled Oculus Episcopy, for that he is by the very Law the Bishops Vicar in several respects, and therefore may (where the Bishop himself conveniently cannot) keep the Triennial Visitations, or not oftener than once a year, save where emergent occasions do require it oftener. He hath also under the Bishop the power of Examination of Clerks to be Ordained, as also of Institution and Induction; likewise of Excommunication, Injunction of Penance, Suspension, Correction, Dispensations of hearing, determining and reconciling of Differences among the Clergy, as also of enquiring into, inspecting, and reforming Abuses and Irregularities of the Clergy, with a power over the Sub-deacons, and a charge of the Parochial Churches within the Diocese. In a word, (according to the practice of, and the latitude given by the Canon Law) to supply the Bishops room, and as the words of that Law are, in omnibus vicem Episcopy gerere. Synt. jur. l. 15. cap. 20. de Archidiacono.

(2.) The Dioceses within this Realm of England are divided into several Archdeaconries, they being more or less in a Diocese according to the extent thereof respectively, and in all amounting to the number of Threescore: And they divided again into Deanaries, which also are subdivided into Parishes, Towns, and Hamlets. Of these Archdeaconries some are by Prescription, some by Law , and some by Covenant. Which difference hath this Operation in Law, That the Jurisdiction of an Archdeaconry by Prescription, or de jure, is exclusive to the Jurisdiction of the Bishop, insomuch that a Prohibition lies for such Archdeacon against the Bishop, if he intermeddle Juridically with any matters or things within such Archdeaconries: Otherwise it is where the Archdearonry is only by Contract or Covenant made between the Bishop and the Archdeacon; for in that case, if the Bishop so intermeddle within the Jurisdiction of such Archdeacon, or hold Plea within the same, he can have but an Action of Covenant against the Bishop, and no Prohibition lies in that case . The Cognizance which the Archdeacon hath, is of matters merely Ecclesiastical, to which end he or his Commissary may hold his Court, where, and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry; and from him the Appeal is to the Diocesan .

(3.) An Archdeaconryship being only matter of Function, and (as supposed) not properly Local, nor any Indenture made of it, it hath been some question heretofore, whether a Quare Impedit doth lie of it, or not? But it was held in the Affirmative, for that an Archdeacon hath Locum in choro . The power of an Archdeacon was derived from the Bishop, and to him he is subordinate: To which purpose the opinion of the Court in Hutton 's Case upon a Quare Impedit was, That if a Suit be before an Archdeacon, whereof by the Statute of 23 H. 8. the Ordinary may license the Suit to a higher Court; that the Archdeacon cannot in such case balk his Ordinary, and send the Cause immediately into the Arches: for he hath no power to give a Court, but to remit his own Court, and to leave it to the next; for since his power was derived from the Bishop to whom he is subordinate, he must yield it to him of whom he received it; and it was said in that Case, that so it had been ruled heretofore .

(4.) If after the Clerk hath been presented by the Patron, and Admitted and Instituted by the Bishop, the Archdeacon shall refuse to Induct him into the Benefice, an Action upon the Case lieth for the Clerk against the Archdeacon . He hath power to keep a Court, which is called the Court of the Archdeacon, or his Commissary; And this Court is to be holden where and in what places the Archdeacon either by Prescription or Composition hath Jurisdiction in Spiritual Causes within his Archdeaconry. And from him the Appeal is to the Diocesan.

(5.) Although by the Canon Law, if one having a Benefice with Cure of Souls accepts an Archdeaconry, the Archdeaconry is void; yet it is conceived, that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reason of a Proviso there, viz. Provided that no Deanery, Archdeaconry, &c. be taken or comprehended under the Name of a Benefice, having Cure of Souls, in any Article above-specified; and to this Opinion did Wray and the other Justices incline in Underhill 's Case . And indeed an Archdeaconry, by the express Letter of that Statute, is exempt from being comprehended under the name of a Benefice with Cure; for the words are, That no Deanery, Archdeaconry, Chancellorship, Treasurership, Chantership, or Prebend in any Cathedral or Collegiate Church, nor Parsonage that hath a Vicar endowed, nor any Benefice perpetually Appropriate, shall be taken or comprehended under the name of a Benefice having Cure of Souls .

(6.) By the Ecclesiastical Constitutions and Canons of the Church, of England, no Archdeacon (nor indeed any other Ecclesiastical Judge) may suffer any general Process of Quorum Nomina to issue out of his Court: Except the Names of those to be cited be first expressly entered by the Register or his Deputy under such Process, and both Process and Names first subscribed by such Archdeacon, or other Ecclesiastical Judge, or his Deputy, with his Seal thereto affixed. And in places where both the Bishop and Archdeacon do by Prescription or Composition visit at several times in one and the same year, the Archdeacon or his Official, shall within one month next after the Visitation ended that year, and the Presentments received, certify under his hand and Seal to the Bishop or his Chancellor, the Names and Crimes of all such as are presented in his said Visitation, to the end the Chancellor may not Convent the same person for the same Crime, for which he is presented to the Archdeacon; which course the Chancellor is in like manner to observe, in reference to the Archdeacon, after the Bishops Visitation ended. The which was Ordained, to prevent the Prosecution of the same party for the same fault in divers Ecclesiastical Courts . And in cases of remitting Causes from the Inferior Judge, the Archdeacon cannot remit the Cause to the Archbishop; but he must remit it to his Bishop, and he to the Archbishop. Trin. 11 Jac.

(7.) The Archdeacon within the Jurisdiction of his Archdeaconry may by virtue of his Office have his Visitation, if he so please or need shall require, once every year; but of necessity he is to have his Triennial Visitation: Lindw. de Offic. Archid. c. 1. verb. Visitatione gloss. But whether of Common right and by the Jus Commune the Archdeacon may Visit within the Jurisdiction of his Archdeaconry is some question, yet resolved by distinguishing whether the Visitation be made per modum Serutationis simplicis by the Archdeacon, as the Bishops Vicar, and so he may Visit of Common Right: but if in such Enquiries he take upon him nomine suo proprio to correct Faults, other than such small ones as wherein Custom may warrant him; in such case it is held, that he hath not power of Visitation de jure communi: Lindw. ibid. And in all such things as belong to his Visitation he hath Jurisdiction, and by Custom over Lay-persons as well as over the Clergy: It seems therefore he may do all such things, as without the doing and dispatch whereof his Jurisdiction could not clearly appear; L. cui Jurisdictio ff. de Jurisd. om. Jud. and therefore wherever he may take cognizance of a matter, there he may also give sentence and condemn; Extr. de Caus. Poss. & propr. c. cum Super. & de Offic. Deleg. c. ex Literis. which is supposed to hold true by Custom, and inasmuch as the cognizance and reformation of such matters do belong to the Ecclesiastical Court; whence it is that an Archdeacon may impose a penalty on Lay-men for the not repairing their Parish-Church within his Jurisdiction; Extr. eod. c. ult. & Extr. de Offic. Ord. c. 1. & Lindw. ubi supr. verb. Imperitiam. For it is expressly enjoined and ordained, That Archdeacons and their Officials, shall at their Visitation of Churches, take the condition of the Fabric thereof into special consideration, specially of the Chancel; and in case there be need of Reparations, shall set or fix a time within which such Reparations shall be finished, which time is likewise to be set under a certain penalty: Lindw. de Offic. Archidiac. c. Archidiaconi.

(8.) By the Canon Law a man cannot be an Archdeacon under the age of 25 years; Can. Nullus in propositum, 60 Dist. And by the Council of Trent he ought to be a Licentiate in Law or Divinity; Cons. Trid. 8. Cessio de Reform. general. Can. 12. They are called the Chief of the Deacons; C. 1. de Scrutin. in Ord. faciend. in whom there is an Ecclesiastical Dignity inherent jure Communi: And in some places they have this Dignity sine Officio; for Innocentius observes, That in Ecclesia Parmensi Archidiaconus nullum exercet Officium, & nihilominus dignitatem habet: Innocent. in c. de multa de Praebend. But regularly, according to the Canon Law, Archdeacons as to their Dignity, Office, and Degree are to be reputed according to the Law, Usage, and Custom of their own Church and Chapter; Hostiens. Sum. de Offic. Archid. The Archdeacon is Oculus Episcopy, and ipso jure his Vicar in Visitations, Corrections, and Dispensations in matters Ecclesiastical within his Jurisdiction, he hath power of reforming the Clergy, of examining and presenting to the Bishop such as are to be Ordained, and of putting into possession such as are Presented, Instituted and Inducted into Ecclesiastical Benefices.

(9.) Cardinal Otho, in his Canon de Archidiaconis, hath Ordained, That all Archdeacons do prudently and faithfully visit the Churches within their respective Archdeaconries, as touching the Sacred Vessels and Vestments thereof, and generally to inquire into the Temporalties and Spiritualties belonging to the same, and that they endeavor to amend what they find amiss: Also, that they grieve not the Churches with superfluous charges or expenses, but require only moderate procurations in their Visitations; wherein they may not presume to receive money of any when Crimes are to be corrected or punished, nor Sentence any unjustly, on purpose to extort money from them, on pain of double the Sum to pious uses at the discretion of the Bishop, besides other Ecclesiastical punishment. Constit. Othonis, de Archdiaconis.

(10.) The Canon Law doth distinguish of Archdeacons; the whole Title throughout [ De Offic. Archidiac. ] regularly speaks of an Archdeacon General, who hath not any Archdeaconry distinctly limited, Sed tanquam Vicarius fungitur vice Episcopy Vniversaliter, and doth represent the Bishop: Extra. de Consue. non putamus. Otherwise it is in him who hath a distinct Limitation of his Archdeaconry, for then he hath a Jurisdiction separate from the Bishop, which, where it is by Custom, may be prescribed: Gloss. in ver. Visitent. dict. Const. Otho. Consonant to this seems that difference which the Judges took in the Case between Chiverton and Trudgeon, wherein they held and agreed, That there is a Jurisdiction of one Archdeacon, and there is the Jurisdiction of another, which is but a peculiar Jurisdiction; for the Archdeacon is an Officer who hath a Court of his own, in which he hath the Probat of Testaments de jure: And Doddridge Justice said, That he is a principal Officer belonging to the Bishop, & est quasi Oculus Episcopy; but otherwise it is of one who hath but a special Jurisdiction, as the Archdeacon of Richmond hath to make Institutions; and so 21 H. 6. 23. the Dean of Paul's in that case hath special Authority in St. Panchridge. Hill. 17 Jac. B. R. Case Chiverton and Trudgeon: Roll. Rep.

(11.) In the Case between Gastrell and Jones, it was said by Ley Chief Justice, That it is to be considered, what Authority the Archdeacon hath in his own nature, as such, and what power he may have by Prescription, or otherwise: The Archdeacon is a Minister subordinate to the Bishop, viz. Deputy and Vicar, or an Officer under him, for, in case of Induction, the Bishops Warrant is necessary to impower him to give the same; He hath also Judicial power, but it is not exclusive to the Episcopal Authority, but the Bishop is his Superior: Both are Judges, but the one subordinate to the other, &c. And if Sentence be given in the Archdeacons Court, the Appeal thence shall not be in the Bishops Court, but in the Archbishops: And if a man dies Intestate, having goods within the Archdeacons Jurisdiction, and other Goods within the Jurisdiction of the Ordinary, the Archbishop (as he said) shall commit the Administration to the Archdeacon.

(12.) The Archdeacon of H. having the Parsonage of A. appropriate to it, Lett the Land parcel of his Glebe for fifty years, in Anno 12 Eliz. The Bishop of E. Patron of the Archdeaconry, and the Dean and Chapter confirm it; The Archdeacon dies, another is Collated to the Archdeaconry. It was the Opinion of the Justices in this Case, first, That the Confirmation by the Bishop was not void, for that it was but an Assent only to the Lease of the Possession of the Archdeaconry, and not of the Bishop, and therefore not within the Statute of 1 Eliz. The second Point was, Whether this Lease was void by the Statute of 13 Eliz. Quaere, for not Resolved. Mich. 37 & 38 Eliz. B. R. Sir Edw. Denny and Eakenstall 's Case. Cro. par. 1.

(13.) The same Case Reported by More; An Archdeacon having a Parsonage appertaining to his Archdeaconry before the Statute of 13 Eliz. made a Lease for forty years of the Parsonage, which was Confirmed after the Statute; adjudged the Lease and Confirmation both good. Arkingsall, or Eakenstall, and Denny 's Case. More 's Rep.

(14.) A Quare Impedit was brought by the Executors of J. S. for not suffering them to Present to the Archdeaconry of D. which became void in the life of the Testator, and the Writ and Count both supposed a disturbance to the Testator in his life, In nunc retardationem Executionis Testamenti praedict. In this Case it was Resolved (1.) That a Quare Impedit did lie of an Archdeaconry. (2.) That the Writ as brought should abate, because it was in nunc retardationem, which cannot be of a Disturbance in the life of the Testator. But it was agreed, that the Executors might have a special Action upon the Case for their Disturbance. Trin. 31 Eliz. B. R. Smalwood and the Bishop of Coventry and Marshes Case. Cro. par. 1.

CHAP. IX.

Of Procurations, Synodals, and Pentecostals.

1. Procuration, what; whence so called; and how paid.
2. Whether Procurations be only due ration Visitationis.
3. Procurations Anciently paid in Victualibus, and not in Money; how paid to Archdeacons in Lindwoods time.
4. Whether Procurations may be payable by Custom to Archdeacons sine Visitatione?
5. Archdeacons to Visit personally; if otherwise, then how the Procurations are payable.
6. Not above one Procuration to be paid; how that is to be understood.
7. The Number of the Visitor's Attendants by the Council of Lateran in reference to Procurations; and how many an Archdeacon may have by the Canon.
8. Synodals, the threefold signification of that word.
9. The Synodal anciently called Cathedraticum & Synodaticum: what the Cathedraticum was, why so called; the Original thereof, and how it differs from Procuration.
10. Pentecostal, what it is; when, by, and to whom payable; the probable Original thereof.
11. A remarkeble Case relating to this Subject, that was Resolved and Adjudged in Ireland.

(1.) THe Ordinary at his Visitation may by the Canon require his Synodals or Procurations, Extr. de Cens. c. Procurationes; that is, a certain Cense or Tribute in money paid to the Bishop or Archdeacon by the inferior Clergy at Easter -Visitation; called Synodale or Synodaticum, quia in Synodo frequentius dabatur. So that these Procurations are no other than certain sums of money which the Parochial Clergy do annually pay to the Ordinary or Archdeacon ration Visitationis. Anciently they were paid in provisions of Victuals necessary for the Visitor and his Attendants, now converted into money instead thereof: So that this Procuratio is by Vallensis aptly defined, Necessariorum sumptuum Exhibitio, quae, ration Visitationis, debetur ab Ecclesia vel Monasterio ei cui ex officio incumbit jus & onus Visitandi, sive is sit Episcopus, sive Archidiaconus, sive Decanus, sive Legatus summi Pontificis. An. 1290. M. quod die Mercurii in Festo Sanct. Lucae Evang. Dominus Episcopus coepit Procurationem in Cibis & Potibus apud Bordesley, & pernoctavit ibidem . Whence the word Procuration is supposed to have its derivation, even from the duty incumbent on the Visited in Procuring of necessary Accommodations for the Visitor and his Attendants as aforesaid; which seems the more probable by what Duarenus says, Hoc autem munus ideo Procuratio vocatur, quia Ecclesiae Episcopum Procurant, id est, Curant, alunt, ac tuentur.

(2.) It hath at times been smartly controverted, Whether Procurations be due only ration Visitationis, or whether the payment thereof may legally be enforced without the Act of Visiting, and not exclusively to Archdeacons in the years of Episcopal Visitations? For if so, then the foresaid description which Vallensis makes thereof, is not adequate enough to the nature of the thing; of which opinion grounded on solid Arguments, is the Learned Author of the Historical Discourse on this Subject .

(3.) Anciently (as aforesaid) these Visitation-Procurations, or Exhibitio necessariorum sumptuum, as Vallensis calls it, was no other than Victuals: For by the Council of Lateran (not the great General Council under Innoc. 3.) but that under Alex. 3. above thirty years before, about An. 1180. Visitors are so directed to proceed in the execution of their Visitations, as that Sumptuosas Epulas non quaerant, sed cum gratiarum action recipiant quod honest & competenter illis fuerit ministratum. That these Procurations were originally paid in Victualibus, appears by several Constitutions of the Canon Law. Extr. de Censib. c. cum Apostolus, & de Censib. c. Romana, §. Procurationes. Consuetudo tamen (says Lindwoods Gloss) operatur in pluribus locis, ut Procuratio hujusmodi sumatur in pecunia; quae Consuetudo been potest procedere, ut sumatur à Volentibus sic in pecunia Solvere, non autem à Nolentibus. Extr. Benedict. 12. &c. Foelicis, & gl. Lindw. ubi supr. But that was only where the Custom prevailed, the Canon anciently being peremptory to the contrary; for in the Sext. there is a Constitution made by Innoc. 4. (who became Pope An. 1243.) and afterwards ratified by a General Council at Lions under Greg. 10. about An. 1273. forbidding ( sub poena Maledictionis aeternae ) the taking of money in lieu of Procurations (vel à Volentibus sic solvere) C. 1. §. Procurationes, &c. exigit. eod. in sexto, & ibi Gloss. in casu; and the ordinary penalty practiced in this case against Visitors of any rank inferior to Patriarchs, Archbishops, or Bishops, that should presume to receive Procurations otherwise than in Victualibus, was suspension ab officio & beneficio. And this way of paying Procurations ex antiquo, continued till the time of Boniface 8. who succeeding in the Papacy about twenty two years after Gregory, made a Constitution about the year 1295, That it should be lawful to any Visitor ( Volentibus Visitatis, not otherwise) vice Victualium to receive, not to exact, Money towards the defraying of their Visitation-Charge. Gloss. in ver. dispendia, c. Foelicis, eod. in sexto: Which by Benedict. 12. in the second year of his Popedom, about 1337. was by a Canon or Constitution limited to a certain sum, according to the quality of the Visitor, and the condition of the Visited, which may take place, where it is not otherwise limited by Custom; the Procurations of Archdeacons being in Lindwood's time, as he informs us, (which was in Henry the Fifths Reign, above two hundred years since) the sum of seven shillings six pence, according to the number of his Attendants, viz. twelve pence to each man, and eighteen pence to the Archdeacon himself, which (comparing the value of Money Then with the times Now ) was considerable.

(4.) The Question is not, whether Procurations are due Ration Visitationis; but whether they are only due Ration Visitationis, and not otherwise? It is supposed that they are and may be due otherwise than Ration Visitationis, and that therefore Archdeacons may receive Procurations in the L. Bishop's Triennials, and yet Visit not; for Custom seems to lay a just claim to this Ecclesiastical payment of Procurations sine Visitatione, where the Custom is Rationabilis & Legitime praescripta. Time was, when Archdeacons had jus Visitandi quolibet anno, and so accordingly did Visit, & eâ ration received Procurations. Lindw. de Offic. Archid. c. 1. gl. in ver. Visitation. & Extr. de Offic. Archid. c. Mandamus, gl. in ver. saepius Visitare. And sometimes they Visit not, as in the Episcopal Triennials, yet by the Custom do and may receive their Procurations; understand this only of some, not all Archdeacons.

(5.) The Canonists define Procuration to be an Exhibition sumptum Necessariorum paid to the Prelates, qui Dioeceses peragrando Ecclesias subjectas Visitant. And it is a Rule in the Canon Law, Quod nulla est adversus Procurationem praescriptio. Inst. Ju. Can. l. 2. de Censib. And by the same Law the Archdeacon is to go personally to the place that is to be Visited, and ought not for that purpose to send another; which if he doth not so do, he is not to receive in denariis the Procurations due ration Visitationis. Extr. de Cens. c. Procurationes. Notwithstanding the person whom he Commissionates for that purpose Nomine suo, shall receive the Procurations for himself and his Attendants in Victualibus. Ar. ad hoc de Offic. Ord. c. si Episcopus, l. 7. & de Censib. c. 1. &c. Foelicis, de Cens. Lindw. glo. de Offic. Archid. c. ut Archidiaconi, ver. videant. These Procurations are called also Proxies, Cenag. & Pentecostal. per. an. 64 l. 10 s. ita Archidiaconatus Glouc. valet clare in Proxis , which is a profit of Jurisdiction. Archidiaconis inhibemus ne aliquo modo Procurationes recipiant sine Causa Rationabili, nisi illo die quo personaliter Visitant. Provin. Constit. de Offic. Archid.

(6.) The Ordinary may not receive above one Procuration, that is, he may not of the same Church exact one Procuration from the Rector, another from the Vicar; if he hath the Procuration in Victualibus of the Rector, he ought to receive nothing of the Vicar, nec e contra; for one Procuration of one Church for one day is held sufficient: dict. c. Foelicis, de Censib. Nor do the Canons allow above one Procuration, in case there be more Churches than one Visited in one and the same day; the Reason whereof in Law, because the Visitation is the Principal, the Procuration is but the Accessory, and the Visitation only of one day ought not to have the Procurations of more, nor ought the Accessory to exceed the Principal. Lindw. ibid. de Censib. c. quamvis, & gl. ib. ver. Canones. Nor ought there to be paid above one Procuration for the Mother-Church and the Chapel thereto belonging, when they are Visited. Can. ibid. ver. una Ecclesia. Yet there are Canonists of very good Authority, as Andraeas and others, who holding the contrary, do positively assert, That every Chapel dependent (if Peopled and of ability) shall pay its own proper Procuration at times of the Ordinary Visitation, for that the Bishop is to have a respect to every individual Member of his Diocese. It is therefore distinguished and confessed, that this is true, when the Chapel dependent hath a Curate proper of its one, and distinct from, or other than the Curate of the Mother-Church: But otherwise when the Rector of the Superior Church, is Curate of both, only doth exercise the Cure in the said Chapel by a Vicar not Perpetual, but Temporal and removeable ad Libitum. Gl. in d. ver. una Ecclesia. Lindwood on this occasion puts the Question, Whether in case the Church be of one Diocese, and the Chapel thereto annexed or united, or dependent thereon, of another; whether in that case there shall at the Visitation be but one Procuration paid for both? He resolves it thus, viz. That if the Ordinary of the place where the said Chapel stands, hath formerly had there his Visitation, and Procuration, ration Visitationis ejusdem, then and in that case the power of Visiting the same, nor by consequence the Procuration due ration Visitationis, is not taken away from that Ordinary by such union or dependency. Gloss. ibid. in ver. Ecclesia.

(7.) By the aforesaid Council of Lateran all Visitors were limited to a certain number of Visitation-Attendants, according to their several qualities, as Archbishops to the number of forty or fifty men with their Horses; the Bishop to twenty or thirty; Cardinals to twenty five (though they could not digest such an undervaluation) Archdeacons to five or seven; Deans (that is, Archipresbyteri Rurales, as the Gloss expounds it) to Two only: Gl. in ver. Decani. Extr. eod. c. cum Apostolus. Extr. Com. de Censib. c. vas Electionis. And the truth is, the Archdeacon (according to the Canon ) may not have in his Ordinary Visitation above the number of seven persons; if he exceed that number, there is not any Procuration due for the Supernumeraries. Lind. de Cens. & Procurat. c. 1. ver. excedant, & glo. ibid. & gl. in ver. Visitationis, & gl. ib. in ver. Debitam.

(8.) The word Synodale seems to have Three significations, as (1) it seems to signify Conventus or a Meeting, in the same sense with Synodus, as being taken for the Meeting or Synod itself, and so used by Gregory 3. in his Epistle to the Bishops of the Provinces of Baiory and Almany, Catholica Sanctorum Patrum Authoritas jubet, ut bis in anno pro salute populi Christiani seu exhortatione adoptionis filiorum SYNODALIA debent celebrari, &c. This Epistle you have cited by Cardinal Baronius, in the Eighth Tome of his Annals about the year 738. (2) It seems to signify the Acts done at a Synod, as well as the Synod itself; and in this sense you have it in the Tripartite History, where mention is made of a Synod of Bishops assembled at Antioch out of divers Provinces, who sent the Emperor Jovinian a Copy of the Nicene Creed, Hunc Libellum (meaning the said Creed) in collectione Synodalium Sabini conscriptum invenimus. In which place Synodalia seems to import the Acts of that Synod collected by that Sabinus. (3) It signifies a Cense or Tribute in money paid to the Bishop, or to some other for his use by the Inferior Clergy. The forementioned Author of the Historical Discourse of Procurations, &c. acquaints us, That in the second part of the Appendix to the third General Council of Lateran there is an Epistle of Pope Alex. 3. to certain Archdeacons and Deans, reproving them for extorting of moneys from the Clergy sub diversis nominibus, in a fraudulent kind of way; Et hujusmodi exactionem (saith that Epistle) ut eam Liberius videamini exigere; quandoque Consuetudinem Episcopalem, quandoque SYNODALIA; quandoque Denarios Paschales appellantes. And in this sense is the word Synodale here used and taken, which the Archdeacon claims not so much Jure Communi Ecclesiastico, as by Composition with, or Prescription from the Bishop.

(9.) This Synodal or Synodical duty was anciently known by two other Names which now are grown obsolete, the one Cathedraticum, probably from the original Cause thereof, being ob honorem Cathedrae Episcopalis: the other Synodaticum, from the time of payment, both used promiscuously. The former of these, viz. the Cathedraticum was a Cense of two shillings paid by the Inferior Clergy to the Bishop, as appears by the Acts of certain Councils of Bracar and Toledo, as also by the Constitutions and Rescripts of Popes, Ilud te volumus modis omnibus custodire, ne qui Episcoporum Siciliae de Parochiis ad se pertinentibus, nomine CATHEDRATICI, amplius quam Duos Solidos praesumant accipere. 10. q. 3. c. illud, &c. placuit, ibi, &c. So Honorius 3. expresseth Two shillings nomine Cathedratici. Extr. de Offic. Jud. Ordin. c. conquerent. & gl. ibid. in ver. Duos solidos; which is a Pension paid to the Bishop à qualibet Ecclesia secundum Loci consuetudinem; as Panormitan. upon that Text, Abb. c. conquerent. de Offic. Jud. Ord. The reason of this payment was (according to Hostiensis) in argumentum subjectionis, & ob honorem Cathedrae. Hostiens. in Sum. de Censib. ex quibus ver. Cathedraticum autem. And the Council of Bracar; Placuit ut nullus Episcoporum per suas Dioeceses ambulance, praeter honorem Cathedrae suae, id est, Duos Solidos, aliud aliquid per Ecclesias tollat? cited in the Decree, 10. q. 3. c. placuit. Note, that the Cistersians by virtue of their Order were privileged from being present at the Synodical Meetings assembled by the Bishop within his Diocese, and from the payments of those Synodals. Gloss. in ver. Episcopus, c. Episcopus non debet, Dist. 18. Extr. de Majoris & Obed. c. 9. Quod supr. & gl. ib. in ver. Diocoesana. This Cathedratick -payment began, when the Revenues of the Church first came to be divided and allotted to several Ministries; then it was that this payment was first made to the Bishop by the Beneficed Clergy within his Diocese. Duaren. ut supr. & l. 2. c. 1. fo. 53. It is probable that this division of the Church Revenues was not far distant in time from the first or original distinguishment of Parochial Bounds, upon which affair Pope Euaristus, otherwise called Anacletus Graecus, did first enter about the year 110. Volateran. l. 22. Anast. Biblioth. & Baron. Annal. ad An. 112. nu. 4, 5, 6. and was afterwards carried on by Pope Dionysius, about the year 260. Baron. Annal. ad An. 260. nu. 17. Parochial Distribution in England was by Theodorus Archbishop of Canterbury, about the year 668. Spelm. Council. 152: But Speed saith, by Honorius the fifth Archbishop also of Canterbury, about the year 636. It may not hence be infer'd, that this Cathedraticum or Synodal was only paid ration Synodi; for it was sometimes, and very anciently paid also at Visitations, as appears by the seventh Council at Toledo, mentioned in the Decree, 10. q. 3. c. inter caetera, & casus ibi, where there is a Canon against the exacting of more than Two shillings only pro Cathedratico in Episcopal Visitations. This Cense or payment, though it be Onus Ecclesiasticum, yet it is not Onus innovatum, but Onus Ordinarium, and by imposition of Law; as appears by the Provincial Constitutions, Solutio Cathedratici, Synodatici, & Procurationum, ration Visitationis, & alia hujusmodi, de quibus non dubitatur quin sunt Onera Ordinaria, suum capiunt effectum ab impositione Legis. Lindw. de Offic. Vic. c. quoniam. gl. in ver. Onera Ecclesiastica. Yet Procurations differ from the other in this, that Procurations are only Pensions, but the other are properly Census. The Synody or Synodal is by the Stat. of 34 H. 8. reckoned as a Church-due, for recovery whereof provision is made by that Act; and good reason, for the said Synody or Synodal, is a Pension certain and valued in the King's Books.

(10.) The aforesaid Ingenious Author of the Historical Discourse touching Procurations, &c. after his deep search into Antiquity, doth conjecturally conceive, that the Pentecostal, otherwise called Whitsonfarthings, is nothing else but the Annual Commemoration, continuation or repetition of an Ancient payment or pension, issuing out of the Oblations brought by the people long since, specially at the time of the Foundation or Dedication of their several Churches, or at some other Solemnity, viz. the moiety or Third part of the Oblations then made. The same being reserved by the Bishop, and by a Contract ( seu quasi Contractu ) between him and the Founder of such Church, or Priest assigned to attend the same, settled in and upon the Episcopal See, and payable yearly at or about the Feast of Pentecost. These Pentecostalia were not (as some conceive) the Peter-pence here anciently paid, for they were usually paid either at the Feast of St. Peter and Paul, or on Lammas day; but these Pentecostals seem to be paid upon or about the time that doth chiefly denominate the same, viz. at the Feast of Pentecost; and in the nature thereof seem to have reference to an Oblation frequently made by the Christians in the Elder times of the Church, and to have some tendency to that Liberal Devotion which was then as frequent, as Sacrilege is now. In Leg. 18 Guilielm. Conquestor, De Denariis S. Petri, seu Vectigali Romano, viz. Liber homo qui habuerit Averia Campestria 30 denariis aestimanda, dabit Denarium S. Petri. Pro 4 denariis quos donaverit Dominus, quieti erunt Bordarii ejus, & ejus Boner, & ejus Servientes. Burgensis, qui de propriis Catallis habet id quod dimidia Marca aestimandum est, det Denarium S. Petri. Qui in Lege Danorum est Liber homo, & habet Averia Campestria, quae dimidia Marca in argento aestimantur, debet dare Denarium S. Petro. Et per Denarium quem donaverit Dominus, erunt quieti ii qui resident in suo Dominico. Vid. S • ldeni ad Eadmerum Notae & Spicelegium, p. 179. Leg. 18. By this Law of William the Conqueror it appears, that the Peterpence had no affinity with the Pentecostals. In Ancient times when the Bishop did visit Ecclesiatim, his usage was to celebrate the Mass in the Church which he visited, which indeed was every Parish within his Diocese, and that by his Episcopal Authority, the whole Diocese in respect of the Bishop being by the Law but Paroechia sua, 10. q. 3. c. Quia. & Duarenus, passim. as the whole Province is said to be in respect of the Lord Archbishop of Canterbury. At this Mass the people used to make their Offerings to the Bishop, and one of the causes or reasons, why or wherefore the people in Ancient times were obliged to bring their Oblations to the Church, was propter Consuetudinem, and that certis Festivitatibus, among which the Feast of Pentecost was and is a most special one; at which Feast there was in many places here in England an Oblation, Anciently made by inferior Churches and Parishes to the principal Mother-Church, and whence probably the word Pentecostalia had its original denomination. These Offerings by the Canon Law were and are only due to the Clergy, and interdicted to the Laity, sub districtione Anathematis. 10. q. 1. c. Quia Sacerdotes, &c. Sanct. Patrum, ibi. In some places the Deans and Prebendaries of Cathedral Churches have them; It is said, That in the Cathedral Church of Salisbury there is a greater and a l • ss, distinguished and known by this difference of Major & Minor pars Altaris. And in some Dioceses they are settled upon the Bishop and Archdeacon, and made part of their Revenue, for which the King hath Tenths and Subsidies. The Cathedral or the Mother-Church of Worcester was Anciently, and before the dissolution, a Priory, and among other Revenues had these Pentecostalia or Whitsonfarthings yearly paid, sub nomine Oblationum or Spiritual Profits tempore Pentecostes: After the Dissolution, when King H. 8. about the three and thirtieth year of his Reign new-founded and reendo'wd the said Church, he restored these Pentecostalia (after he had h • ld them about a year in his own hand) to the said Church, which (as it is reported) the Dean and Prebendaries thereof receive at this day, and as appears by the Letters Patent:

Henricus Octavus, &c. Sciatis quod Nos de gratia nostra specially, ac ex certa scientia, ac mero motu nostris dedimus & concedimus, ac per praesentes damus & concedimus Decano & Capitulo Ecclesiae Cathedralis Christi & beatae Maria Virginis Wigorn. omnes illas Oblationes & Obventiones, sive Spiritualia proficua vulgariter vocat, Whitson farthings annuatim collect. s • ve recepta de diversis Viliatis in Comitat. nostris Wigorn. Warwic. & 〈◊〉 . infra Archidiaconatum Wigorn & tempore Pentecost. oblata dicto nuper Prioratui beatae Mariae Wigorn. modo dissolut. dudum spectan. & pertinen. &c. Ex Archivis Decani & Capit. Wigorn.

But in Gloucester, it seems, it is otherwise; for there the Bishop and the Archdeacon only receive them: nor can the Dean and Prebendaries that now are of the Cathedral make any just claim to them. For before the Suppression these Pentecostals were ( inter alia ) valued to the Archdeacon in the Kings Books, as part of the Revenue of the Archdeaconry. And as for Procurations aforesaid, although they are (as Dr. Cosen says) ration Visitationis plerumque praestandae, yet not solummodo so; and thence it is held, that they are in some places payable to the Archdeacon jure Consuetudinario, even in the Bishops Triennial year, sine Visitatione, on the Archdeacons part.

(11.) To this purpose Remarkable is that Case of Proxies, which Sir John Davis, the Kings Attorney General in Ireland, reports to have been there Resolved and Adjudged. The Case was this; The Bishop of Meth, before the dissolution of Monasteries, had a Proxy of fifteen shillings four pence payable yearly out of the Commandry of Kells in the County of Meth, parcel of the Possessions of the Hospital of St. John of Jerusalem in Ireland; and one other Proxy of twenty shillings payable yearly out of the Impropriate Rectory of Trevet in the same County, parcel of the possessions of the Abbey of Thomascourt in the County of Dublin. In the thirty third year of King H. 8. the said Hospital and Abbey were suppressed and dissolved, and all the possessions of both the said Houses were vested in the actual possession of the Crown by Act of Parliament: But in the said Act there is an Express, Saving the Proxies to all Bishops and their Successors. Afterwards the Bishop of Meth and his Clergy (for that Bishopric hath not any Dean and Chapter) by Deed Inrolled, Dated 16 March 36 H. 8. granted to the said Proxies (inter alia ) to King H. 8. his Heirs and Successors; the King being at the time of the Grant, and after, in the actual possession of the said Commandry and Rectory, out of which the said Proxies were payable. Afterwards Queen Elizabeth, by her Letters Patent dated Primo Novemb. in the thirty third year of her Reign, demised the said Commandry and Rectory to Dr. Forth. And now whether he shall be charged with these Proxies, and the Arrearages thereof, after the commencement of the Lease, was the Question; And it was Adjudged, that he should be charged therewith. In the Argument of this Case there were Three points moved and debated; (1) Whether the Proxies were wholly extinct by the suppression and dissolution of the said Religious houses, notwithstanding, the said Saving in the Act of Dissolution? (2) Whether the Bishop could grant the Proxies to the King? (3) Whether the Proxies in the hands of the King were extinct by the Unity of Possession? For the First point, it was Objected by Sir Ambrose Forth 's Counsel, That the Proxies were extinct by the suppression and dissolution of the Religious houses: For that the Visitation of the Religious houses were the sole cause of the payment of the Proxies; Et cessante causa cessat effectus. For the Religious houses being gone and dispersed, they shall not be afterwards subject to Visitation, and then when the Visitation doth cease, the Proxies, being only Exhibition given to the Visitor for his Travelling charges, shall cease also; For Procuratio (as the Canonists define it) est Exhibitio sumptuum necessariorum facta Praelatis, qui Dioeceses peragrando Ecclesias subject as Visitant. Yet it was agreed, That the Visitation doth not cease immediately upon the Surrender, or by the Act of Parliament, which gives the Religious houses and their Possessions to the Crown; for by that their Corporations are not dissolved: as was held in the Case of the Dean and Chapter of Norwich. Co. par. 3. 15 Ass. p. 8. 32 H. 8. Br. Corporations 78. But when the Religious persons were dispersed and had relinquished their Habit, Rule, and Order, for which they were Visitable, then their Corporation was utterly dissolved, and thereupon the Visitation ceases. And in this case they resembled a Proxy due for Visitation to an Annuity for Counsel or some other Service to be done: if the Counsel or the Service be withdrawn, the Annuity determines. So if a Rent-charge be granted for a Way, stop the Way and the Rent-charge shall be stopped also, 9 Ed. 4. 19. 15 Ed. 4. 2. 21▪ Ed. 3. 7. So where a Corodie is granted for certain Service to be done, the omission of the Service determines the Corody, 20 Ed. 4. fo. ult. It was also said, That the duty is not Annual but Contingent, and payable only upon every Visitation. And for the [ Saving ] they said, it was a Flattering Saving, which could not preserve the Proxies in being, which the Law had extinguished; as was held 14 Eliz. Dyer 313. That the tenures of the Obit or Chauntry-Lands held of the Subjects are extinct by the Act of 1 Ed. 6. notwithstanding the Saving in the said Act, propter absurditatem: So the Proxies in this Case shall be extinct propter absurditatem. For as it is absurd, that the King should be subject to Attendance in respect of a Tenure: so it is absurd, that the King should be subject to Visitation, or to any duty in respect thereof. Of the same nature there are many Savings put in Walsingham 's Case. Plow. Com. 563. which are there called Flattering Savings. As to the Second point it was objected, That the Bishop could not grant these Proxies to the King for two Reasons; the one drawn from the person of the King, the other from the person of the Bishop: (1) For the King, Admit that he were capable of such a Spiritual Office, as to be a Visitor of Religious persons, yet he shall not have Proxies, by reason of the Inconveniency and Indecency, and also for the Impossibility thereof; For it is neither Convenient nor Decent, that the poor Religious persons should bear the Charges of the King; And it is also Impossible, for by the Canon Law, Procuratio exhibenda est secundum qualitatem personae Visitantis; and the Majesty of the person of the King, and the grandeur of his Train such, that by presumption of Law no private person can bear his necessary charges, or make him entertainment answerable to the quality of his person. (2) For the Bishop, Although he may grant his Temporal possessions with the assent of his Chapter or Clergy, yet those duties which he hath by the prerogative of his Episcopal Chair, or as incident to his Spiritual Function, he may not grant; And they by the Rule of the Canon Law are of Three sorts, viz. (1) Subsidium Cathedrarium, which is a duty of Prerogative and Superiority. (2) Quarta Episcopalis, which was given to him for Reparation of Churches. (3) Procurationes, for his Visitation, as aforesaid, which is a perquisite or profit of his Spiritual Jurisdiction. As to the Third point, they said, That although a Proxy is a Personal thing, payable only in respect of persons Visitable, yet admit that these Proxies are become Real, and that the Commandry and Rectory are charged with these Proxies, then the unity of possession doth extinguish them in the hands of the King, as a Seignory, Rent-charge, Common, and the like, are extinguished by the purchase of the Terre-tenant, if he hath the like Estate in the Land, and in the thing which charged the Land. And to this purpose was cited the Case of 2 H. 4. 19. a. where a Prior had an Annuity out of a Parsonage by Prescription; the Parsonage is after appropriate to the Priory, the Annuity is extinguimed forever. But on the other side, it was answered by the Kings Council, and Resolved by the Court, That the said Proxies were not extinguished by the dissolution of the said Religious houses, but were well preserved and saved to the Bishop; and the Bishop had well granted them to the King, and the unity of possession in the hands of the King made but a Suspension and no Extinguishment of the said Proxies. (1) As to the First point, it was first observed, that these Proxies had not their original in the primitive Church; for St. Paul, in visiting all the Churches which he had planted in Asia and Europe, demanded not any Proxies, but labored with his own hands for his subsistence, lest he should be burdensome to the Churches. Yet long after this, the Canon Law, which declares that Proxies are due to Bishops in their Visitations, says, that it is agreeable to the doctrine of St. Paul, ut à quibus spiritualia recipimus, eisdem Temporaliae communicemus. Instit. Jur. Can. l. 2. c. de Censib. It was also observed, that that which we call Proxy or Procuracy, is called by the Canonists, Procuratio, for that upon every Visitation the persons visitable procurant necessary Provisions for the Visitors; which Provisions at first were made in Victuals, viz. in Esculentis & Poculentis, but that was with moderation and temperance, Ne jejuniorum doctrinam rubentibus buccis praedicant; But afterwards, when the pomp and excess of Visitors required such provisions as were grievous and intolerable to the Churches and Religious houses, then every Church and such House was reasonably Taxed, and for that every Proxy was reduced to a certain sum of money, payable yearly, in the nature of a Pension, to the Ordinary, who had power of Visitation de mero Jure, as is said 10 Eliz. Dyer 273. b. After the Procuration of Victuals was reduced to a certain sum, the Churches and Religious houses paid it to the ordinary yearly, albeit he made not any Visitation: And so the Rule of Cessante causa cessat effectus doth not hold in this case. These certain sums of money which come in lieu of Proxies, and retain the name of Proxies, are by ancient Composition made parcel of the certain and settled Revenues of the Bishop, do remain forever, and are not subject to extinguishment. And at this day the King himself pays and allows Proxies out of all the Impropriations which he hath in his possession; for which reason in every Lease made by the King of a Rectory Impropriate, there is a Covenant on the Lessee's part, that he shall bear and pay all Proxies, Synodals, Pensions, &c. And as for the [ Saving ] in the Act of 33 H. 8. cap. 5. it is not an idle or Flattering Saving, but real and effectual: for it was agreed before, that these Proxies were in being at the time of making the Act, and are not extinguished by the Surrender of the Religious houses; for their Corporations are not dissolved till the Religious persons have relinquished their houses and are dispersed. And such things as were in being at the time of making the Act, may well be preserved and saved by the Act; albeit the things which were extinct before, cannot be revived by a Saving, without express words of Grant and Restitution. As to the Second point, it was Resolved, That the Proxies in their original nature being Duties payable for Visitation, are grantable to the King, and the King is capable of such a Grant, specially when the said duties are converted to a sum of money certain, in the nature of a Pension or Annuity. For by the Ancient Law of the Realm, the King had power to Visit, reform, and correct all Abuses and Enormities in the Church: And by the Statutes made in the time of King H. 8. the Crown was but remitted and restored to his ancient Jurisdiction, which had been usurped by the Bishop of Rome. 33 Ed. 3. tit. Ayd del Roy 103, Reges sacro oleo uncti Spiritualis Jurisdictionis sunt Capaces. And Proxies are profits of the Jurisdiction, 10 H. 7. 18. Rex est mixta persona cum Sacerdote: So the King shall have Tithes by the Common Law, whereof no mere Lay-person was capable, 22 Assis. pl. 75. 21 H. 7. 1. The King himself may Visit his Free Chapels and Hospitals, 8 Ass. p. 29. N. Br. 42. a. And Cassanae, in Catol. Glo. mund. par. 5. Cons. 24, cites a Text of the Canon Law, viz. Quod omnes Reges dicuntur Clerici, also another Text, which faith; Quod Causa Spiritualis committi potest Principi Laico. And whereas it was said, that in respect of the grandeur of the King and his Train, competent Proxies cannot be provided for him, and by consequence a Grant thereof cannot be made to him; that Objection is removed, in that the Proxies at the time of that Grant was reduced to certain reasonable sums of money. Also the Rule of the Canon Law was not rightly and fully cited before; for the Rule is, Procuratio exhibenda est secundum qualitatem personae visitantis, & substantiam Visitatorum. It was also Resolved, that the Bishop with the assent of his Clergy, might well grant the Proxies to the King, for that the Law hath qualified the person of the King to receive such a Grant, albeit it be such a Prerogative of the Bishop as may not be assigned to any other person: As the Creation-money of a Duke or Earl may be granted and surrendered to the King, although it can be granted to a Subject. Also the Proxies being now reduced to certain sums of money, and so made part of the certain settled and perpetual Revenue of the Bishop, may be granted by him as well as a part of the Tithes, or an Annuity, or any of his Rents, Services, or other Hereditaments Temporal. And as to the Third point it was also Resolved and Adjudged, That the Unity of Possession of the Proxies with the Rectories impropriate and religious Houses, out of which the Proxies are payable, do not extinguish the Proxies in the hands of the King, but suspends the payment of them tantum pro tempore, quousque, or until the King by his Grant shall sever the one from the other. To conclude, The Case of Tithes is parallel to the Case of Proxies, and agrees therewith in all points; For as Instruction was the cause of the payment of Tithes: So Visitation, which is ever accompanied with Instruction, Littl. ca. de Frankalmoigne 30. b. was the cause of the Proxies. And as Tithes are now due and payable to Lay-persons which have purchased Impropriate Rectories, although they do not give any Instruction: So Proxies are due and payable to Ordinaries, out of the Impropriations and Religious houses dissolved, although their Visitation ceases. And as none can prescribe de non decimando, as is commonly held in the Common Law: So the Canon Law hath a Rule, Quod nulla est adversus Procurationem praescriptio. Inst. Jur. Canon. lib. 2. cap. de Censibus. Also Proxies, which resemble Tithes in other points, may be well compared to them in this point, viz, That they shall not be subject to extinguishment by unity of possession.

CHAP. X.

Of Diocesan Chancellors, Commissaries, Officials, and Consistories.

1. A Description of the Office of such Chancellors, and how they differ from the Bishops Commissaries.
2. The Antiquity and necessary use of such Chancellors.
3. What the Canons Ecclesiastical require touching their Office.
4. Whether a Divine, that is not a Civilian, may be a Chancellor?
5. Where, and before whom the Bishops Consistories are held.
6. What is meant or intended by the word Consistory.
7. The great Antiquity of the Bishops Consistories.
8. That Antiquity further confirmed and proved.
9. The difference between Consistorium and Tribunal.
10. Incidents to the Chancellors Office, as he is Oculus Episcopy.
11. A short digression touching Administrators.
12. The Laws and Canons touching Summoners.
13. The Constitutions Provincial, what provision there touching this Office of Summoners.
14. A Judgment at Common Law in Action on the Case against an Apparitor or Summoner, for Citing a man wrongfully into the Ecclesiastical Court.
15. What a Commissary is; how to be qualified; with the Precincts of his Jurisdiction.
16. Whether a Commissary may Cite persons of several Parishes to appear at his Visitation -Court?
17. A Case at Common Law touching a Commissary made by a Dean.
18. Whether a mere Lay-person may be a Commissary or Official; Other points in Law touching that Office; and the Grant thereof.
19. Sufficiency or Insufficiency, or other defects in Chancellors, Commissaries, &c. properly cognizable not in the Temporal, but Ecclesiastical Courts.
20. The Office of Chancellorship (as to the Right of it) is held to be of Temporal, but (as to the Exercise thereof) of Ecclesiastical cognizance.
21. Whether the Offices of Chancellor, Register, &c. in Ecclesiastical Courts, be within the Statute of 5 Ed. 6.

(1.) THe Chancellor of a Diocese is a Church-Lawyer, or the Bishops-Lawyer, or that person who is Commissionated to be aiding and assisting to the Bishop in his Jurisdiction, not confined to any one place of the Diocese, nor limited (as the Bishops Commissaries are) only to some certain causes of the Jurisdiction; but everywhere throughout the whole Diocese supplying the Bishops absence, in all matters and causes Ecclesiastical within his Diocese. By the Statute of 37 H. 8. c. 17. a Doctor of the Civil Law lawfully deputed, may exercise all Ecclesiastical Jurisdiction, and the Censures thereof. By this Chancellor the Bishop within his Diocese keeps his Court according to the Ecclesiastical Laws, in all matters pertaining to his Jurisdiction, or otherwise relating more immediately to the Church or Government of the Clergy. As Bishops in their Episcopal audience have had in all Ages the cognizance of all matters Ecclesiastical, as well Civil as Criminal, within the Jurisdiction of their Diocese: so they have ever had to that end their Chancellors, whom the Law calls Ecclesiecdici or Episcoporum Ecdici, persons experienced in the Civil and Canon Laws, to assist them in matters of Judgment; and those whom we now call the Bishops Chancellors, are the very self same persons in Office, that anciently did exercise Ecclesiastical Jurisdiction under Bishops, and were called Ecclesiecdici. Papias per Gothofred in L. omnem, C. de Episc. & Cler. & in §. praeterea, ibid. Dr. Ridl. View, par. 2. cap. 2. sect. 3. Who (forasmuch as they have with them the Bishops Authority everywhere within the Diocese for matters of Jurisdiction, and in that the Bishops and They make but one Consistory ) are called the Bishop's Vicars General, both in respect of their Authority, which extendeth throughout the whole Diocese, as also to distinguish them from the Commissaries of Bishops, whose Authority, as it is restrained only to some certain place of the Diocese, so also to some certain causes of the Jurisdiction, limited unto them by the Bishops; for which reason the Law calls them Officiales Foraneos, quasi Officiales astricti cuidam foro Dioeceseos tantum. Dr. Ridl. ibid.

(2.) Dr. Ridley in his View of the Civil and Ecclesiastical Law says, that Chancellors of Dioceses are nigh of as great Antiquity as Bishops themselves, and are such necessary Officers to Bishops, that every Bishop must of necessity have a Chancellor; and that if any Bishop should seem to be so complete within himself, as not to need a Chancellor, yet the Archbishop of the Province, in case of refusal, may put a Chancellor, on him, in that the Law presumes the Government of a whole Diocese a matter of more weight, than can be well sustained by one person alone; and that although the Nomination of the Chancellor is in the Bishop, yet his Authority is derived from the Law. Hostiens. Sum. de Offic. Vicar. nu. 2. For which reason the Law understands him as an Ordinary, as well as the Bishop. Hostiens. ibid. It is most probable, that the multiplicity and variety of Ecclesiastical Causes introduced the use and Office of Chancellors originally; for after that Princes had granted to Ecclesiastical persons their Causes and their Consistories, and Circumstances varying these Causes into a more numerous multiplication, than were capable of being defined by like former Presidents, necessity called for new Decisions, and they for such Judges as were experienced in such Laws as were adapted to matters of an Ecclesiastical Cognizance; which would have been too prejudicial an Avocation of Bishops from the exercise of their more Divine Function, had not the office of the Chancellor in determining such matters, been an expedient to prevent the said prejudice or inconvenience.

(3.) By the Constitutions and Canons Ecclesiastical it is Ordered, That upon the days of the Visitation every Chancellor, Archdeacon, Commissary and Official, as also at the ordinary time when Church-wardens are Sworn, shall deliver them such Books of Articles as whereon to ground their Presentments. Also, that they shall not suffer any to be cited into Ecclesiastical Courts by any General process of Quorum Nomina; nor the same person to be cited into several Ecclesiastical Courts for one and the same Crime, for which end the Chancellor and Archdeacon are within one month next after the Bishops Visitation, mutually to certify each other under their Hands and Seals, the Names and Crimes of all such as were Presented in the said Visitation. Nor shall any Chancellor, or other Ecclesiastical Judge, suffer any Judicial Act to be sped otherwise than in open Court, or in presence of the Register, or his Deputy, or other person by Law allowed to speed the same; nor shall have (without the Bishops consent) anymore Seals of Office than one. Nor shall any man be admitted a Chancellor, or to exercise any Ecclesiastical Jurisdiction, under the age of 26 years, and learned in the Civil and Ecclesiastical Laws, and is at least a Master of Arts, or Bachelor of Law, and shall first have taken the Oath of Supremacy in the Bishops presence, or in open Court, and have subscribed the Articles of Religion, and swear that to the utmost of his understanding he will deal uprightly and justly in his Office, without respect, favor, or reward.

(4.) Sutton Chancellor of the Bishop of Gloucester moved for a Prohibition to stay a Suit before the Commissioners Ecclesiastical, for that Articles were there exhibited against him, because he being a Divine, and having a Rectory with Cure of Souls, and never brought up in the Science of the Civil or Canon Laws, or having any Intelligence in them, took upon him the Office of the Chancellor of the Bishop of Gloucester, whereas there were divers Canons and Ecclesiastical Constitutions, and also directions from the late King James, and from the King that now is, That none should be admitted to have those Offices of Chancellorship to a Bishop, unless he were instructed and learned in the Canon and Civil Laws; because divers Cases triable in the said Court are of weight, and the Judges there ought to have knowledge of the Laws, otherwise they cannot administer Right to the Kings Subjects. Upon these Articles Mr. Sutton being examined, confessed that he was a Divine, and had a Spiritual Living, and that the Office of the Chancellorship of the Bishop is grantable for life, and that such a Bishop of Gloucester had granted to him the Office for his life, which the Dean and Chapter had Confirmed, whereby he had a Freehold therein, and ought to enjoy it during his life. And that notwithstanding this Answer they intended to proceed against him, wherefore he prayed to have a Prohibition, but the Court denied it; for if he be a person unskillful in these Laws, and by Law ought not to enjoy it, they may peradventure examine that; for although a Lay-person, by his Admission and Institution to a Benefice hath a Freehold, yet he may be sued in the Spiritual Court, and deprived for that Cause; but if he hath wrong, he may peradventure by Assize try it; therefore a Prohibition was denied .

(5.) The Consistory Court of each Archbishop, and every Bishop of every Diocese within this Realm, is holden before the Bishops Chancellor in the Cathedral Church, or before his Commissary in places of his Diocese far remote and distant from the Bishops Consistory, so as the Chancellor cannot call them to the Consistory with any conveniency or without great travel and vexation; for which reason such Commissary is called Commissarius Foraneus. From these Consistories the Appeal is to the Archbishop of either Province respectively.

(6.) By this word [ Consistory ] is commonly understood that place or Ecclesiastical Court of Justice, held by the Bishops Chancellor or Commissary in his Cathedral Church or other convenient place of his Diocese, for the hearing and determining of matters and Causes of Ecclesiastical cognizance, happening within that Diocese . But when this word refers to the Province of Canterbury, then the chief and most ancient Consistory is the Arch-bishops high Court of Arches, as the Court of Appeal from all other Inferior Consistories within the said Province. The same word sometimes refers to a Synod or Council of Ecclesiastical persons convened together, or to a Cession or Assembly of Prelates; but most usually to the Spiritual Court for the deciding of matters of Ecclesiastical cognizance. The word Consistory ( Consistorium ) is supposed to be borrowed of the Italians, or rather Lombards, signifying as much as ( Praetorium ) or Tribunal, being a word utriusque juris, and frequently used for a Council-house of Ecclesiastical persons, or the place of Justice in the Court Christian .

(7.) The Consistories of Archbishops and Bishops are supposed to begin within this Realm in the time of William the Conqueror ; which seems very conjecturable from that Charter of his, which Sir Ed. Coke in the fourth part of his Institutes mentions to have found Enrolled, 2 R. 2. nu. 5. . Which Charter, and Record of great Antiquity, asserting not only the Episcopal Consistories, but also the Ecclesiastical Jurisdiction, it cannot be supposed but that it ought to be recited here in terminis per extensum, viz.

Wilhelmus gratia Dei Rex Anglorum, Comitibus, Vicecomitibus & omnibus Francigenis, & quibus in Episcopatu Remigii terras habentibus, salutem. Sciatis vos omnes, & caeteri mei Fideles qui in Anglia manent, quod Episcopales Leges, quae non been, nec secundum Sanctorum Canonum Praecepta usque ad mea tempora in Regno Anglorum fuerunt, Communi Concilio & Concilio Archiepiscoporum meorum & caeterorum Episcoporum, & Abbatum, & omnium Principum Regni mei Emendandas judicavi. Propterea Mando, & Regia authoritate Praecipio, ut nullus Episcopus vel Archidiaconus de Legibus Episcopalibus amplius in Hundretto Placita teneant, nec causam, quae ad Regimen animarum pertinet, ad Judicium Secularium hominum adducant; sed quicunque secundum Episcopales Leges de quacunque causa vel culpa interpellatus fuerit, ad locum, quem ad hoc Episcopus elegerit, & nominaverit, veniat, ibique de causa sua respondeat, & non secundum Hundrettum , sed secundum Canones & Episcopales Leges Rectum Deo & Episcopo suo faciat. Si vero aliquis per superbiam elatus ad Justitiam Episcopalem venire non voluerit, vocetur semel, & secundo, & tertio; quod si nec sic ad emendationem venerit, Excommunicetur: &, si opus fuerit, ad hoc vindicand' fortitudo & Justitia Regis vel Vicecomitis adhibeatur: Ille autem qui vocatus ad Justitiam Episcopy venire noluit, pro unaquaque vocatione legem Episcopalem emendabit: hoc etiam Defendo, & mea authoritate interdico, ne ullus Vicecom. aut praepositus, aut minister Regis, nec aliquis Laicus homo de Legibus quae ad Episcopum pertinent se intromittat: nec aliquis Laicus homo alium hominem sine Justitia Episcopy ad Judicium adducat; Judicium vero in nullo loco portetur nisi in Episcopali Sede, aut in illo loco quem ad hoc Episcopus constituerit

(8.) For the Confirmation of this Charter Sir Ed. Coke in the foresaid part of his Institutes refers us to the Register of the Bishop of London. Wilhelmus Dei gratia Rex Anglorum R. Bainardo, & S. de magna Villa P. de Vabines, caeterisque meis Fidelibus de Essex & de Hertfordshire, & de Middlesex, Salutem. Sciatis vos omnes, &c. In which Charter the Tenor of the foresaid Charter is recited word by word in English. The like Charter he also there says is in the Book of Charters of the Archbishop of Canterbury. Whereby it is most evident, that the Bishops Consistories are of great Antiquity, and that they were erected when Causes Ecclesiastical were removed from the Tourne (which is a Court of Record holden before the Sheriff) to the Consistory . So that this Law, made by the Conqueror, seems (as Mr. Blount in his Nomo-Lexi • on on this word well observes) to give the Original of the Bishops Consistory, as it now sits with us distinct and divided from the Hundred or County-Court, wherewith it seems probable, in the time of the Saxons, to have been join'd .

(9.) Lindwood in the Provincial Constitutions upon this word Consistorium quoad Episcopos, puts this difference between Consistorium and Tribunal: Tribunal (says he) est Locus in quo sedet Ordinarius inferior; but Consistorium est Locus in quo sedet princeps ad Judicandum; Lindw. de foro Competent. c. excussis. in ver. Consistoria. Albeit, according to the vulgar acceptation of these words, we refer Tribunal to any place of Judicature, but Consistorium to that only which is of Ecclesiastical Jurisdiction.

(10.) This Chancellor of a Diocese, as he is Oculus Episcopy, ought to have an eye into all parts of the Diocese, and hath immediately under the Ordinary Jurisdiction of all matters Ecclesiastical within the same; not only for reformation of Manners, and punishment of Enormities of a Spiritual nature by Ecclesiastical Censures; but also in Causes Matrimonial, and Testamentary as to the Probat of Wills, and granting Letters of Administration of the Goods of a person dying Intestate, where there are not Bona Notabilia; In which case the Will shall be proved, or Administration granted by the Prerogative of the Archbishop: And wherever there is an Administration duly granted, there the Administrator doth almost in all points represent the person of the Intestate as legally, as any Executor can the person of his Testator Testamentarily. For this Administrator, in construction of the Common Law, is that person to whose trust, care, conduct, and management the Goods and Chattels, Real and Personal, of the Intestate are committed by the Ordinary, or such other as under him is duly Authorized to grant the same. But under this Notion or Appellation of Administrator, neither the Civil nor the Canon Law knows any such Officer; only they take notice of Administrators as Governors of Persons, Places, or Things. Decret. Can. 23. q. 5. cap. 26. & Extra. Com. cap. 11. And it is most probable, that the Common Law might (as some conceive) take its light, as to this Officer under this notion as now practicable with us, from the Constitution of the Emperor Leo. I. 28. nulli licere, C. de Episc. & Cler. whereby it is Ordained, That the Bishop shall take care to see such Legacies duly performed, as are bequeathed for the Redemption of Captives, in case the Testator appoint not one to execute his Will in that particular. This power given to the Ordinary of making Administrators in case of Intestation, and of Authorizing them to act as Executors, is very ancient by the Statute-Law . And if any Ordinary, Chancellor, &c. having power by the Act of 21 H. 8. to grant the Administration of the goods of him that dieth Intestate, to the Widow or next of Kin, shall take any Reward for the preferring any person before another to the Administration, it is Bribery .

(11.) A lawful Administrator may render his own Goods liable to the Intestate’s Debts either by a Devastavit, or by a False Plea Judicially; and his Executor or Administrator shall not succeed him in the Administration to his Intestate (unless qualified to require Administration of both Intestate’s) but the Administration of the first Intestate’s goods is de novo to be committed to his next of Kin, as de bonis non Adm. And if a Stranger by any Act make himself Executor de son tort, the Creditors and Legataries may not sue him as Administrator, albeit it be an Administration in Fact, but must sue him as Executor in his own wrong; who notwithstanding is not any further liable, than to the value of the Deceased's Goods, as Assets in his hands. But in case the Ordinary shall, without granting any Letters of Administration, make his Letters Ad Colligendum, in that case he makes himself liable to Actions pro tanto, as if himself were actually possessed of the Goods of the deceased. And here Note, That Funeral expenses, according to the degree and quality of the Deceased, are to be allowed of his Goods before any debt or duty whatsoever, for that is Opus pium, or Charitativum .

(12.) And as in these Consistories there is a great variety of Ecclesiastical Causes heard and determined, so also the Officers belonging thereto are many, and of various qualities and degrees, whereof some seem to be magis principales, others minus principales, but others (in the popular account) as mere Animalia tantum Rationalia, by whom they understand Apparitors, who in truth are Summoners, and whose Character in Law is this, viz. He is that person, whose employment is to serve such Processes as issue out of the Spiritual or Ecclesiastical Courts, and as a Messenger to Cite Offenders and others to make their appearance therein as occasion shall require. By the Statute of 21 H. 8. c. 5. as also by the 138th Canon of the Ecclesiastical Constitutions, Apparitors are called Summoners or Sumners; by which Canon the Abuses and Grievances pretended to be practiced by such Summoners or Apparitors are sufficiently redressed: For as the multitude of them is thereby abridged and restrained by Decreeing and Ordaining, That no Bishop or Archdeacon, or their Vicars or Officials, or other inferior Ordinaries, shall depute or have more Apparitors to serve their Jurisdictions respectively, than either they or their Predecessors were accustomed to have Thirty years before the publishing the said Ecclesiastical Constitutions: So it is likewise provided by the said Canon, That the said Apparitors shall by themselves faithfully execute their Offices, and not by any color or pretence whatsoever cause or suffer their Mandats to be executed by any Messengers or Substitutes, unless upon some good cause, to be first allowed and approved by the Ordinary of the place. It is also further Provided by the said Canon, That they shall not take upon them the Office of Promoters or Informers for the Court, nor shall exact more or greater Fees than are prescribed by the 135th Canon of the said Ecclesiastical Constitutions. And in case either the number of Apparitors deputed shall exceed the aforesaid Limitation, or any of them offend in any of the Premises, the persons deputing them (if they be Bishops) shall upon Admonition of their Superior, discharge the persons exceeding the Number so limited as aforesaid: But if they were deputed by Inferior Ordinaries, such Ordinaries shall be suspended from the execution of their Office, until they have dismissed the supernumerary Apparitors by them so deputed; and the parties themselves so deputed shall forever be removed from the Office of Apparitors: And in case being so dismissed and removed, they do not desist from the execution of their said Offices, they are by the first said Canon to be proceeded against and punished by Ecclesiastical Censures as persons contumacious to the Jurisdiction. And finally, if upon experience the number of the said Apparitors be too great in any one Diocese, in the judgment of the Archbishop of Canterbury for the time being; in that case he is by the said Canon impower'd to abridge them to such a number, as to himself shall seem meet and expedient.

An Apparitor came to the Church of a Parson, and said to him, He is to pay Tenths to such a one at such a place, four miles distant from the Church, to whom the Parson did not pay them, and thereupon the Bishop Certified, That he refused to pay them according to the Statute of 26 H. 8. It was Resolved, The Demand was not according to that Statute, and the Summons to pay them not according to the Statute, for the Demand ought to have been by one who hath authority to receive them, which the Summoner had not; And they held the Demand not good, although the Bishop certified it was duly made. And in the Case between the Queen and Blanch it was Resolved, That the Certificate of the Bishop, that the Incumbent refused to pay his Tenths, is not Peremptory, but Traversable; and that the Demand of the Tenths must be at the house of the Incumbent, and the Refusal there. More 's Rep. 1225.

In a Action upon the Case against the Defendant, the Case was this; A Summoner in the Ecclesiastical Court, having a Citation against the Plaintiff, Returned, That he had Summoned the Plaintiff, whereas in truth he never Summoned him; for which the Plaintiff was Excommunicated to his great damage. It was adjudged that the Action did lie.

(13.) By the Premises it is manifest, that the Canon is very strict and exact both in abridging the Number, and redressing the Abuses incident to the Office of Apparitors; which Canon in most Circumstances seems to run very parallel with that in the Provincial Constitutions, Lindw. Provin. Constit. de Censibus & Procur. cap. cum Apparitorum; the light whereof did probably influence it into that Form wherein we now find it; For by that Decree of the said Provincial Constitunions it is Ordained, That a Bishop shall have unum Apparitorem Equitantem duntaxat, where the Gloss well observes, that by this non prohibetur Episcopo quin plures habeat pedites; And every Archdeacon one in every Deanery, non Equitantem sed peditem, where the Bishop might also appoint Apparitors, as also in Rural Deanaries: Gloss. ibid. verb. Duntaxat. And in case more than these were Deputed, or they found to offend in their Office, the Penalty was as above-said, Deputantes sint suspensi, donec, &c. & Deputatos ab Officio Apparitorum perpetuo suspendimus ipso facto. Constit. ibid.

(14.) Action upon the Case; For that the Defendant being an Apparitor under the Bishop of Exeter, maliciously and without color or cause of suspicion of Incontinency, of his own proper malice, procured the Plaintiff Ex Officio, upon pretence of Fame of Incontinency with one Edith (whereas there was no such Fame, not just cause of Suspicion) to be cited to the Consistory Court of Exeter, and there to be at great charges and vexation, until he was cleared by Sentence, which was to his great discredit, and cause of great Expences and Losses, for which, &c. upon Not guilty pleaded, and found for the Plaintiff it was moved by Ashley, Serjeant, in Arrest of Judgment, That in this Case an Action lies not: For he did nothing but as an Informer, and by virtue of his Office. But all the Court ( absent Richardson ) held, That the Action well lies: For it is alleged, That he falso & malitiose caused him to be Cited, upon pretence of Fame where there was no offense committed: And avers, That there was not any such Fame; so as he did it maliciously, and of his own head, and caused him to be unjustly vexed, which was to raise gain to himself; whereupon they conceived, That he being found guilty for it, the Action well lies; And therefore Rule was given to enter Judgment for the Plaintiff, unless other cause was shewn. And upon a second motion, Richardson Ch. Justice being present, Judgment was given for the Plaintiff . The Consistory of the Bishop may in some Cases enjoin Penance: Where Penance is enjoined, there may be Commutation; but there may not be Commutation for Penance, where none is enjoined. Commutation for Penance agrees with the Customs used in the Ecclesiastical Law, justified in the Common Law, in the Statute of Circumspecte agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker 's Case in Camera Stellata. Roll's Rep.

(15.) Commissary [Commissarius ] is a Title of Ecclesiastical Jurisdiction, adapted to such one as doth exercise the same in such remote places of the Diocese, and at such distance from the Bishops chief Consistory, as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the same. The duty of such Commissary or Officialis F • ranei, is to officiate the Bishops Jurisdiction in the remoter parts of the Diocese, or in such Parishes as are the Bishop's peculiar, and exempt from the Archdeacon's Jurisdiction. The Authority of the Commissaries of Bishops is only in some certain place of the Diocese, and some certain causes of the Jurisdiction, limited unto them by the Bishops; for which reason the Law calls them Officiales Foraneos, quasi Officiales astricti cuidam foro Dioeceseos tantum: Gloss. in Clem. de Rescript. And by the Canons and Constitutions Ecclesiastical, no person may be a Commissary or Official under the Age of 26 years, being at least a Master of Arts or Bachelor of Law . Yet in the Argument of Buries Case for a Divorce, the 5 Rep. 98. there was cited 35 Eliz. B. R. rot. 605. That if a Lay-man be made a Commissary by the Bishop, it is good, until it be undone by Sentence; although that the Canon says, That he ought to be a Doctor or a Bachelor of Divinity. But 21 H. 8. hath limited, That a Doctor of the Civil Law may be a Commissary .

(16.) Where a Commissary, citing many persons of several Parishes to appear at his Visitation-Court, Excommunicated them for not Appearing, a Prohibition was granted, because the Ordinary hath not power to cite any to that Court, but the Church-Wardens and Sides-men, and those he may Impannel, and give Articles to them, for to inquire as the Justices of Assize. Vid. N. B. 41. .

(17.) The Dean of the Deanery of Wolverhampton annexed to the Deanery of Windsor, being a Peculiar, and having Ordinary Jurisdiction, makes a Commissary by his Deed, which is Confirmed by the Chapter: The Dean dies. The question was, if that was good to bind his Successor. By Doddridge, That such a Jurisdiction is Judicial, and that Grant is but a Commission and Authority, all times remaining in the Ordinary. True it is, That Ecclesiastical Jurisdiction in Judicial Acts may be executed by a Substitute; but in Law they are the Acts of them who Substitute the other. Vid. 11 H. 4. 64. a. 7 E. 4. 14. 20 H. 6. 1. That a Commissary may Excommunicate, and prove a Testament: But that shall be made in the name of the Ordinary, 20 E. 3. And a Grant of that by the Bishop is not good, but during his life; and shall not bind the Succ • ssor: For the Law hath appointed, that he shall exercise that Jurisdiction ( Sede vacante, &c. ) The Grant being void, cannot be made good by the Confirmation of the Chapter. Coke Chief Justice; If that should be a good grant to bind the Successor, then the Successor cannot remove him; And yet the Successor shall answer for the Acts and Offences of the Commissary, which would be too hard .

(18.) In Walker's Action upon the Case against Sir John Lamb, For disturbance of the Plaintiff in exercising of the Officialty of the Archdeaconry of Leicester, granted by the Archdeacon of Leicester, and of the Office of Commissary of the Bishop of Lincoln. Upon Not guilty pleaded a special Verdict was found, That there were Ancient offices granted by, &c. and Offices of Judicature always granted to one person for life until 1609, and in 30 Eliz. so granted to Dr. Chippindale, and after in 1609 granted to him and one Ed. Clerk for their Two lives, no Surrender being actually made by Dr. Chippendale. Afterwards, 1614 both Offices were granted, the one by the Archdeacon, the other by the Bishop to Sir Jo. Lamb, and to the said Ed. Clerk, and these Grants confirmed by the Dean and Chapter; That in An. 1622. Dr. Chippendale died, and afterwards the Archdeacon who granted that Office, and the Bishop who granted the Office of Commissary, died; and the Bishop of Lincoln who now is, and the now Archdeacon, by several Patents granted these Offices to the Plaintiff, who was at the time of the Grant of the Patent a Lay-person, and Bachelor of the Civil Law only: And they find the Stat. of 37 H. 8. c. 17. That Lay-persons married or unmarried, being Doctors of the Civil Law, may be Commissaries, Officials, Scribes, or Registers, and that the Plaintiff exercised these Offices, and the Defendant disturbed him. Upon this the matter being argued at the Bar, was reduced only to these Two Questions: (1) Whether the Patent to the Plaintiff, being a Lay-person, and not a Doctor of the Law, were good, or restrained by the Statute of 37 H. 8. And as to that point all the Court conceived, The Grant was good, for the Statute doth not restrain any such Grant: And it is but an affirmance of the Common Law, where it was doubted, if a Lay or Married person might have such Offices; and to avoid such Doubts this Statute was made; which explains, That such Grants are good enough; and it is but an Affirmative Statute, and there is no restriction therein: And although Doctors of the Law (though Lay-persons or Married) shall have such Offices; yet this is not any restriction, That none others shall have them but Doctors of the Law, and the Statute mentions as well Registers and Scribes, as Commissaries, and that a Doctor of the Law shall have them; yet in Common experience such persons as are merely Lay, and not Doctors, have enjoyed such Offices. And for this very point was a Case in this Court, Hill. 35 Eliz. Rot. 181. between Pratt and Stock, where, upon Demurrer, this Statute was pleaded against the Plaintiff, to whom a Commissaryship was granted, being but a Bachelor of Law; and he having granted Administration, the Grant was adjudged good, and the Book of Entries, 484, & 489. was allowed good; wherefore they Resolved the Grant was well enough. And it was also Resolved, That where an Officer for life accepts of another Grant of the same Office to him, and to another, it is not any Surrender of the first Grant. The Second point was, Whether the office of the Officialty of the Archdeaconry, and the office of the Commissary of the Bishop, be grantable by the Statutes of 1 Eliz. and 13 Eliz. because it was pretended, they were not parcel of the Possessions of the Bishopric or Archdeaconry, so as they could have any profits by them, and then the Statute doth not restrain the Grants of them. But all the Court Resolved, They were within the words and intent of the Statutes; for they be Hereditaments, and are pertaining unto them; And that a Grant of these Offices to Two, where they were only grantable to One for life, and being granted in Reversion, it is a void Grant by the Statutes against the Successors; For the Statutes restrain all Grants of anything to be avoidable against the Successor, besides Grants of necessity and Leases for Three lives, or 21 years, where the ancient Rent is reserved: And all other Grants, as well of Offices as of other things, not warranted by the Statutes, are made void as against the Successors, Vid. Coke 10. fo. 60. the Bishop of Salisbury 's Case, Coke 5. fo. 14. and a Case betwixt Vaughan and Crompton, 14 Jac. at the Assizes before the Justices of the Assize for the Office of the Registership in Suffolk, and between Johns and Powell for the Registers place of Hereford, where it was Adjudged, That such Offices granted in Reversion were void: whereupon Rule was given, That Judgment should be entered for the Plaintiff, unless other cause were shewn. And afterward being moved again, Judgment was given for the Plaintiff .

(19.) Noy Attorney Reports the foresaid Case of Dr. Sutton in this manner, viz. That he was deprived of the office of Official of Gloucester by the Commissioners 3 Jac. appointed to examine the defects of Chancellors, and that he was not read in the Canon or Civil Law. He said, That time out of mind, &c. the Bishops have used in their Dioceses to bestow the Chancellorship, and that A. the Bishop of, &c. had made him Chancellor by Deed; and that was Confirmed by the Dean and Chapter, by which he had a Frank-tenement in that Office, &c. And Mr. Glanvile moved for a Prohibition, but it was denied by the Court; for it is lawful for the Commissioners to deprive for Insufficiency, that being within their Commission; But in a Suit in the Ecclesiastical Court for the Profits of that Office, supposing the Grant of that by the Predecessor does not bind the Successor; as it was in Dr. Barker 's Case, there a Prohibition shall be awarded, because the profits are Temporal. But we in the first Case cannot try the Sufficiency: Vid. 8 E. 3. 70. 9 E. 3. 11. So it is if the Ordinary deprive the Master of a Lay-Hospital, for there he is not a Visitor, nor is it Visitable by him; But otherwise of a Spiritual Hospital.

(20.) The Bishop of Landaff granted the office of his Chancellorship to Dr. Trevor and one Griffin, to be exercised by them either jointly or severally. Dr. Trevor for 350 l. released all his Right in the said Office to Griffin, so that G. was the sole Officer, and then after died. After this the Bishop grants the said Chancellorship to R. (being a Practicioner in the Civil Law) for his life. Dr. Trevor surmising, that himself was the sole Officer by Survivorship, made Dr. Lloyd his Substitute to execute the said office for him, and for that, that he was disturbed by R. the said Dr. Trevor being Substitute to the Judge of the Arches, granted an Inhibition to inhibit the said R. from executing the said Office. The Libel contained, That one R. hindered and disturbed Dr. Lloyd, so that he could not execute the said Office. Against these proceedings in the Arches a Prohibition was prayed, and day given to Dr. Trevor to show cause why it should not be granted. They urged, that the Office was Spiritual, for which reason the discussing of the Right thereof appertaineth to the Ecclesiastical Courts. But all the Judges agreed, That though the Office was Spiritual, as to the Exercising thereof, yet as to the Right thereof it was Temporal, and shall be tried at the Common Law, for the party hath a Freehold therein. Vid. 4 & 5 P. & M Dyer 152. 9. Hunt 's Case, for the Registers Office in the Admiralty, and an Assize brought for that: And so the Chief Justice said, was Adjudged for the Registers Office to the Bishop of Norwich in B. R. between Skinner and Mingey, which ought to be tried at the Common Law. And so Blackleech 's Case, as Warburton said, in this Court for the office of Chancellor to the Bishop of Gloucester, which was all one with the principal Case. And they said, That the office of Chancellor is within the Statute of Ed. 6. for buying of Offices, &c. And so in the manner of Tithing, the Prescription is Temporal, for which cause it shall be tried at Common Law. And Prohibition was granted according to the first Rule. So that if a Bishop grant the office of Chancellorship to A. and B. and after A. release to B. and after B. die, and after the Bishop grant it to R. against whom A. sues in the Ecclesiastical Court, supposing his Release to be void, a Prohibition will lie, for that the office is Temporal as to the Right of it, though the office be Exercised about Spiritual matters. But if a Chancellor be sued in the Ecclesiastical Court to be deprived for Insufficiency, as not having knowledge of the Canon Law, no Prohibition lies, for that they are there the proper Judges of his ability, and not the Judges of the Common Law.

(21.) In Dr. Trevor 's Case, who was Chancellor of a Bishop in Wales, it was Resolved, That the Offices of Chancellor and Register, &c. in Ecclesiastical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers, &c. and advancement of Worthy persons, shall be expounded most beneficially to suppress Corruption. And because it allows Ecclesiastical Courts to proceed in Blasphemy, Heresy, Schism, &c. Loyalty of Matrimonies, Probat of Wills, &c. And that from these proceedings depends not only the Salvation of Souls, but also the Legitimation of Issues, &c. and other things of great consequence; It is more reason that such Officers shall be within the Statute, than Officers which concern Temporal matters; The Temporal Judge committing the Convict only to the Gaoler, but the Spiritual Judge by Excommunication, Diabolo: And there is a Proviso in the Statute for them. And it was Resolved, That such Offices were within the Purview of the said Statute.

CHAP. XI.

Of Courts Ecclesiastical, and their Jurisdiction.

1. The Antiquity of the Ecclesiastical Laws of England; and what the Chief Ecclesiastical Courts are in general, anciently called Halimots; The Original of the Popes Usurpation in England.
2. The Court of Convocation; and Constitutions of Claringdon.
3. The High Court of Arches, why so called; the highest Consistory; the Jurisdiction thereof.
4. The Judge of this Court, whence called Dean of the Arches.
5. The great Antiquity of this Court; the Number of Advocates and Proctors thereof Anciently limited; their decent Order in Court.
6. The Prerogative Court of Canterbury.
7. The Court of Audience, to whom it belonged, where kept, and what matters it took cognizance of.
8. The Court of Faculties, why so called, what things properly belong to this Court; As Dispensations, Licenses, &c. with the Original thereof in England.
9 What the nature of a Dispensation is, and who qualified to grant it.
10. A Dean made Bishop, the King may dispence with him to hold the Deanery with the Bishopric by way of Commendam.
11. Whether a Prohibition lies to the Ecclesiastical Courts, in case they do not allow of Proof by one Witness.
12. Divers Cases at the Common Law relating to Prohibitions to the Ecclesiastical Courts.
13. The Court of Delegates.
14. The High Commission Court; what the Power thereof was.
15. The Court of Review, or Ad Revidendum.
16. The Court of Peculiars.
17. In what Cases the Ecclesiastical Court shall have Jurisdiction of matters Subsequent, having Jurisdiction of the Original Suit.
18. In what Case, the party having allowed of the Jurisdiction, comes too late to have a Prohibition.
19. The difference between a Suit Ad instantiam partis, and that ex Officio Judicis, in reference to a General Pardon.
20. Whether a Cle • k may strike his Servant, or another in that case the Clerk and be blameless?
21. What manner of Avoidance shall be tried at the Common Law, and what in the Ecclesiastical Court.
22. In what Case a special Prohibition was awarded in a Suit of Tithes after a Definitive Sentence.
23. A Prohibition to the Ecclesiastical Court in a Suit grounded on a Custom against Law.
24. Prohibition awarded to the Ecclesiastical Court, upon refusal there to give a Copy of the Libel.
25. Where the Ecclesiastical Court hath cognizance of the Principal, they have also of the Accessory, though the Accessory of matters Temporal.
26. A Prohibition denied, upon a Suggestion, That the Ecclesiastical Court would not admit of proof by one Witness.
27. In what case the Ecclesiastical Court shall have the Cognizance, albeit the bounds of a Village in a Parish come in question.
28. How the Practice hath been touching Prohibitions, where the Subject matter in question hath been of a Mixt nature in reference to Jurisdictions.
29. Certain Reasons for denial of Prohibitions to the Ecclesiastical Court, in some Cases, where they might lie.
30. Bounds of Parishes, in reference to the Tithes thereof, whether Tryable by the Law of the Land, or by the Law of the Church.
31. Where the Question is, more touching the Right of Tithes, than the Bounds of the Parish, the Ecclesiastical Court hath had the cognizance.
32. The Ecclesiastical Court hath cognizance of Administrators Accounts, and no Prohibition lies.
33. Modus Decimandi sued for by a Parson in the Eccllesiastical Court, no Prohibition; Nor if he there sues for the Tithe of things not Titheable.
34. In what cases a Custom, as also a Rent, may be sued for in the Ecclesiastical Court.
35. If Question be touching the Grant of a Registers Office in a Bishop's Court, or touching the Tenth after severance from the Nine parts; In what Court, whether Temporal or Ecclesiastical, it shall be tried.
36. A Woman exercising the Profession of a Midwife without License, is therefore sued in the Ecclesiastical Court; whether a Prohibition lies in that case.
37. The Bounds of a Parish, also whether such a Church be Parochial or only a Chapel of Ease; In what Court this is to be tried.
38. A Prohibition granted, upon the disallowance of an Executors Plea, of having Assets only to pay Debts, in opposition to a Legacy sued for in the Ecclesiastical Court.
39. A Prohibition awarded upon a Suit in the Ecclesiastical Court for an account of the Profits of a Benefice; Otherwise in case the Profits were taken during the time of a Sequestration.
40. A Prohibition granted to a Party to stay proceedings in his own Suit, and commenced by himself.
41. Pensions are sueable only in the Ecclesiastical Court.
42. The right of Tithes coming in question between the Parson and the Vicar, is a Suit properly belonging to the Ecclesiastical Court.
43. Whether, and how far, and in what manner the Ecclesiastical Court may take cognizance of a Modus Decimandi, at large debated.
44. When and how the Canon Law was introduced into this Realm.

(1.) BEfore the time of King William the Conqueror all matters, as well Spiritual as Temporal, were determined in the Hundred-Courts, where was wont to sit one Bishop and one Temporal Judge called Aldermanus; the one for matters of Spiritual, the other of Temporal cognizance: But that was altered by King William (and it seems by Parliament, for it was by the assent of the Bishops, Abbots, and all the chief persons of the Realm) for he Ordained, That the Bishop or Archdeacon should not hold Plea of the Episcopal Laws, & quae ad Regimen animarum pertinent, in the Hundred; but by themselves, and there administer Justice, not according to the Law of the Hundred, but according to the Episcopal Laws and Canons, as appears by King William 's Charter. Irrot. 2. R. 2. pro Decano & Capitulo Eccles. Lincoln, Jan. Angl. 76, 77. The Principal Courts Ecclesiastical (whereof some are now out of use) were, and are the Convocation Court, the High Commission Court, the high Court of Arches, the Prerogative Court of Canterbury, the Court of Delegates, the Court of Audience, the Court of Peculiars, the Court of Faculties, besides the Bishops Consistories, the Archdeacons Courts, and the like, anciently called Halimots, or holy Courts. And the Saxon Kings, long before William the Conqueror, made several Laws for the Government of the Church: Among others St. Edward begins his Laws with this Protestation, that it is his Princely charge, Ut Populum Domini, & super omnia Sanctam Ecclesiam, regat & gubernet. And King Edgar, in his Oration to his English Clergy, Ego (saith he) Constantini, vos Petri gladium habetis: jungamus dextras, & gladium gladio Copulemus, ut ejiciantur extra castra Leprosi, & purgetur Sanctuarium Domini. But upon the Conquest made by the Normans the Pope took the opportunity to usurp upon the Liberties of the Crown of England; for the Conqueror came in with the Popes Banner, and under it won the Battle. Whereupon the Pope sent two Legates into England, with whom the Conqueror called a Synod, deposed Stigand Archbishop of Canterbury, because he had not purchased his Pall in the Court of Rome, and displaced many Bishops and Abbots to make room for his Normans. Among the rest the King having earnestly moved Wolstan Bishop of Worcester, being then very aged, to give up his Staff, was Answered by him, That he would give up his Staff only to him of whom he first received the same: And so the old Bishop went to St. Edward 's Tomb, and there offered up his Staff and Ring with these words, viz. Of Thee, O holy Edward, I received my Staff and my Ring, and to thee I do now surrender the same again. Which proves, that before the Norman Conquest the Kings of England invested their Bishops per Annulum & Baculum. By this admission of the Pope's Legates, was the first step or entry made into his usurped Jurisdiction in England; yet no Decrees passed or were put in execution touching matters Ecclesiastical without the King's Royal Assent; nor would he submit himself in point of Fealty to the Pope, as appears by his Epistle to Gregory the Seventh, Vid. Da. Rep. Case of Praemunire, fo. 89. yet in his next Successors time, in the time of William Rufus, the Pope by Anselm Archbishop of Canterbury attempted to draw Appeals to Rome, but prevailed not. Upon this occasion it was, that the King told Anselm, That none of his Bishops ought to be subject to the Pope, but that the Pope himself ought to be subject to the Emperor, and that the King of England had the same absolute Liberties in his Dominions as the Emperor had in the Empire. Yet in the time of the next King H. 1. the Pope usurped the Patronage and Donation of Bishoprics, and all other Benefices Ecclesiastical; at which time Anselm told the King, That the Patronage and Investure of Bishoprics was not his Right, because Pope Urban had lately made a Decree, That no Lay-person should give any Ecclesiastical Benefice. And after this in a Synod held at London, An. 1107. a Decree was made, Cui annuit Rex Henricus (says Matth. Paris. ) that from thenceforth, Nunquam per donationem Baculi Pastoralis vel Annuli quisquam de Episcopatu vel Abbathia per Regem, vel quamlibet Laicam manum, investiretur in Anglia. Hereupon the Pope granted, That the Archbishop of Canterbury for the time being should be for ever Legatus Natus: And Anselm, for the honor of his See, obtained, That the Archbishop of Canterbury should in all general Councils sit at the Pope's foot, tanquam alterius Orbis Papa. Yet after Anselm 's death, this same King gave the Archbishopric of Canterbury to Rodolph Bishop of London (says Matth. Paris.) Et illum per Annulum & Pastoralem Baculum investivit, as before he had invested William Gifford in the Bishopric of Winchester, contra novi Concilii statuta, as the same Author reporteth; And this, because succeeding Popes had broken Pope Urban 's promise, Touching the not sending of Legates into England; unless the King should require it. And in the time of the next succeeding King, Stephen; the Pope gained Appeals to the Court of Rome; For in a Synod at London Conven'd by Hen. Bishop of Winchester, the Pope's Legate, it was Decreed, That Appeals should be made from Provincial Councils to the Pope. Before which time, Appellationes in usu non erant (saith a Monk of that time) donec Henricus Winton. Episcopus malo suo, dum Legatus esset, crudeliter intrusit. Thus did the Pope usurp Three main points of Jurisdiction upon Three several Kings after the Conquest (for of King William Rufus he could win nothing,) viz. upon the Conqueror, the sending of Legates or Commissioners to hear and determine Ecclesiastical Causes: Upon Hen. 1. the Donation and Investures of Bishoprics and other Benefices: and upon King Stephen, the Appeals to the Court of Rome. And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power.

(2.) The high Court of Convocation is called the Convocation of the Clergy, and is the highest Court Ecclesiastical, where the whole Clergy of both Provinces are either present in Person, or by their Representatives. They commonly meet and sit in Parliament-time; consisting of Two parts, viz. the Upper-house, where the Archbishops and Bishops do sit; and the Lower-house, where the Inferior Clergy do sit. This Court hath the Legislative power of making Ecclesiastical Laws, is commonly called a National Synod, Conven'd by the King's Writ, directed to the Archbishop of each Province, for summoning all Bishops, Deans, Archdeacons, Cathedrals, and Collegiate Churches, assigning them the time and place in the said Writ; But one Proctor sent for each Cathedral and Collegiate Church, and two for the Body of the inferior Clergy of each Diocese may suffice. The higher House of Convocation, or the House of Lord's Spiritual, for the Province of Canterbury consists of 22 Bishops, whereof the Archbishop is President; the Lower-house, or House of Commons Spiritual, consisting of all the Deans, Archdeacons, one Proctor for every Chapter, and two for the Clergy of each Diocese, in all 166 persons, viz. 22 Deans, 24 Prebendaries, 54 Archdeacons, and 44 Clerks representing the Diocesan Clergy. Both Houses debate and transact only such matters as his Majesty by Commission alloweth, concerning Religion and the Church. All the Members of both Houses of Convocation have the same privileges for themselves and Menial Servants, as the Members of Parliament have. The Archbishop of York at the same time, and in the like manner, holds a Convocation of all his Province at York, constantly corresponding, debating and concluding the same matters with the Provincial Synod of Canterbury. The Antiquity of this Court of Convocation is very great, for (according to Beda ) St. Augustine, An. 686. assembled in Council the Britain Bishops, and held a great Synod. The Clergy was never assembled or called together at a Convocation by other Authority, than by the King's Writ. Vid. Parl. 18 E. 3. nu. 1. Inter Leges Inae, An. Dom. 727. A Convocation of the Clergy called, Magna servorum Dei frequentia. The Jurisdiction of the Convocation is only touching matters merely Spiritual and Ecclesiastical, wherein they proceed juxta Legem Divinam & Canones Sanctae Ecclesiae. The Lord Coke cites some Ancient Records to prove, that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land, and thence infers, That the Statute of 25 H. 8. cap. 19. (whereby it is provided, That no Canons, Constitution, or Ordinance should be made or put in execution within this Realm by Authority of the Convocation of the Clergy, which were contrariant or repugnant to the King's Prerogative Royal, or the Customs, Laws, and Statutes of this Realm ) is but declaratory of the old Common Law. And by the said Act, the Court of Convocation, as to the making of new Canons, is to have the King's License, as also his Royal Assent for the putting the same in execution. But towards the end of that Act there is an express Proviso, that such Canons as were made before that Act, which be not contrariant nor repugnant to the King's Prerogative, the Laws, Statutes, or Customs of the Realm, should be still used and executed, as they were before the making of that Act. And if any Cause shall depend in contention in any Ecclesiastical Court, which shall or may touch the King, his Heirs or Successors, the party grieved shall or may appeal to the Upper-house of Convocation within fifteen days after Sentence given. Remarkable are the Constitutions of Claringdon in the time of King H. 2. occasioned by the Popes claiming Exemption of Clerks from the Secular power, so contended for by Thomas Becket, then Archbishop of Canterbury, against the King, as occasioned a convening a Common Council, as well of the Bishops as of the Nobility, at Claringdon in the time of H. 2. wherein they revived and reestablished the Ancient Laws and Customs of the Kingdom for the Government of the Clergy, and ordering of Causes Ecclesiastical. The principal Heads or Articles whereof were these, viz. (1) That no Bishop or Clerk should depart the Realm without the King's License; and that such as obtained License, should give Sureties, That they should not procure any damage to the King or Realm during their absence in Foreign parts. (2) That all Bishoprics and Abbeys being void should remain in the Kings hands as his own Demesns, until he had chosen and appointed a Prelate thereunto; and that every such Prelate should do his Homage to the King before he be admitted to the place. (3) That Appeals should be made in Causes Ecclesiastical in this manner, viz. From the Archdeacon to the Ordinary, from the Ordinary to the Metropolitan, from him to the King, and no farther. (4) That Peter-Pence should be paid no more to the Pope, but to the King. (5) That if any Clerk should commit Felony, he should be hanged; if Treason, he should be drawn and quartered. (6) That it should be adjudged High Treason to bring in Bulls of Excommunication, whereby the Realm should be cursed. (7) That no Decree should be brought from the Pope to be executed in England, upon pain of Imprisonment and Confiscation of Goods.

(3.) Arches, or alma Curia de Arcubus, so called of Bow-Church in London, by reason of the Steeple or Clochier thereof raised at the top with Stone-pillars in fashion like a Bow-bent Arch-wise, in which Church this Court was ever wont to be held, being the chief and most Ancient Court and Consistory of the Jurisdiction of the Archbishop of Canterbury; which Parish of Bow together with twelve others in London, whereof Bow is the chief, are within the Peculiar Jurisdiction of the said Archbishop in Spiritual Causes, and exempted out of the Bishop of London 's Jurisdiction. The Judge of this Court of Arches is styled the Dean of the Arches, or the Official of the Arches-Court, unto whose Deanery or Officialty to the Archbishop of Canterbury, in all matters and causes Spiritual, is annexed the Peculiar Jurisdiction of the thirteen Parishes, as aforesaid; Having also all Ordinary Jurisdiction in Spiritual causes of the first Instance with power of Appeal, as the superior Ecclesiastical Consistory, through the whole Province of Canterbury ; yet the Lord Coke says , his power to call any person for any Cause out of any part of his Province within the Diocese of any other Bishop (except it be upon Appeal) is restrained by the Stat. of 23 H. 8. c. 9. Yet his Jurisdiction is Ordinary, and extends itself through the whole Province of Canterbury, insomuch that upon any Appeal made to him from any Diocese within the said Province, he may forthwith, without further examination (at that time) of the Cause, issue forth his Citation to be served on the Appealee, with his Inhibition to the Judge à quo.

In Mich. 6 Jac. C. B. there was a Case between Porter and Rochester; The Case was this: Lewis and Rochester, who dwelt in Essex, in the Diocese of London, were sued for subtraction of Tithes growing in B. in the said County of Essex, by Porter, in the Court of Arches of the Archbishop of Canterbury in London: where the Archbishop hath a peculiar Jurisdiction of thirteen Parishes, called a Deanery, exempt from the Authority of the Bishop of London, whereof the Parish of S. Mary de Arcubus is the chief. And a great Question was moved, Whether in the said Court of Arches holden in London, he might cite any dwelling in Essex, for subtraction of Tithes growing in Essex? or whether he be prohibited by the Statute of 23 H 8. c. 9? Which after debate at Bar by Council, and also by Dr. Ferrard, Dr. James, and others in open Court, and lastly by all the Justices of the Common Pleas: A Prohibition was granted to the high Court of Arches. And, in this case, divers points were resolved by the Court; (1) That all Acts of Parliament are parcel of the Laws of England, and therefore shall be expounded by the Judges of the Laws of England, and not by the Civilians and Canonists, although the Acts concern Ecclesiastical Jurisdiction. (2) Resolved by Coke Chief Justice, Warburton, Daniel and Foster, Justices, That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to cite any one out of his own Diocese: For Diaecesis dicitur distinctio, &c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus, & Commissa gubernatio unius, &c. And is derived a Di, Duo, & Electio, quia separate duas Jurisdictiones: And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London; for this cause it is fitly said in the Title, Preamble, and body of the Act, that when the Archbishop sitting in his Exempt peculiar in London, cites one dwelling in Essex, he cites him out of the Bishop of London 's Diocese; Therefore, out of the Diocese. And in the clause of the penalty of 10 l. it is said, Out of the Diocese, &c. where the party dwelleth; which agrees with the signification of Diocese before. 2. The body of the Act is, No person shall be henceforth cited before any Ordinary, &c. out of the Diocese or peculiar Jurisdiction, where the person shall be dwelling; and if so, then à Fortiori, the Court of Arches, which sits in a Peculiar, may not cite others out of another Diocese. And the words [ out of the Diocese ] are meant of the Diocese or Jurisdiction of the Ordinary where he dwelleth. And from the Preamble of the Act the Lord Coke observes and infers, That the intention of the Act was to reduce the Archbishop to his proper Diocese, unless in these five Cases, viz. (1) For any Spiritual offense or cause committed, or omitted, contrary to Right and Duty by the Bishop, &c. which word [ omitted ] proves there ought to be a default in the Ordinary. (2) Except it be in Case of Appeal, and other lawful cause, where the party shall find himself grieved by the Ordinary, after the matter there first begun; Therefore, it ought to be first begun before the Ordinary. (3) In case the Bishop or Ordinary, &c. dare not, or will not Convent the party to be sued before him. (4) In case the Bishop or Judge of the place, within whose Jurisdiction, or before whom the Suit by this Act should be begun and prosecuted, be party, directly or indirectly, to the matter or cause of the same Suit. (5) In case any Bishop or other inferior Judge under him, &c. make Request to the Archbishop, Bishop, or other inferior Ordinary or Judge; and that to be done in Cases only, where the Law Civil or Common doth affirm, &c. The Lord Coke takes notice also of Two Provisoes in that Act, which do likewise explain it; viz. That it shall be lawful for every Archbishop, to cite any person inhabiting in any Bishops Diocese in his Province for matter of Heresy: By which ( says he ) it appears, That for all causes not excepted, he is prohibited by the Act. (2) There is a Saving for the Archbishop, calling any person out of the Diocese where he shall be dwelling, to the probat of any: Testament: Which Proviso should be vain, if notwithstanding that Act he should have concurrent Jurisdiction with every Ordinary throughout his whole Province: Wherefore it was concluded, That the Archbishop out of his Diocese, unless in the Cases excepted, is prohibited by the 23 H. 8. c 9. to cite any man out of any other Diocese: which Act is but a Law declaratory of the Ancient Canons, and a true Exposition thereof, as appears by the Canon, Cap. Romana in Sext. de Appellat. & c. de Competenti. in Sext. And (as the Lord Coke observes) the Act is so expounded by all the Clergy of England, at a Convocation at London, An. 1 Jac. 1603. Can. 94. who gives us further to understand in this Case between Porter and Rochester, That the Archbishop of this Realm, before that Act, had power Legantine from the Pope; By which they had Authority not only over all, but concurrent Authority with every Ordinary, &c. not as Archbishop of Canterbury, &c. but by his Power and Authority Legantine. Et tria sunt genera Legatorum, (1) Quidam de Latere Dom. Papae mittuntur, &c. (2) Dativi, qui simpliciter in Legatione mittuntur, &c. (3) Nati seu Nativi, qui suarum Ecclesiarum praetextu Legatione funguntur, & sunt Quatuor, viz. Archiepiscopus Cantuariensis, Eboracensis, Remanensis, & Pisanis: Which Authority Legantine is now taken away and utterly abolished.

(4.) It is supposed, that the Judge of this Court was originally styled the Dean of the Arches, by reason of his substitution to the Archbishop's Official, when he was employed abroad in Foreign Embassies, whereby both these Names or styles became at last in common understanding, as it were, Synonym • us . For the Official of this Court, and the Dean of the Arches by such Substitution had both the same Juridical Authority, though with distinct styles in several persons, as appears by that which comes next to the Preface to the Ancient Statutes of that Court, ordained by Robert Winchelsey Archbishop of Canterbury , in that Stat. touching the Form of the Judges Oath, where the words are, tam Officalis dictae Curiae, quam Decanus de Arcubus, suus Commissarius Generalis, &c. For he that was the Archbishops Official in this Court was heretofore obliged to Constitute the Dean of the Arches as his Commissary General in his absence; as also appears by another of those Statutes or Constitutions of that Court, Ordained by John Whitgift Archbishop of Canterbury , the Title of which Statute is, De Decano Ecclesiae Beatae Mariae de Arcubus Lond. wherein we find, viz. Statuimus quod Officialis dictae Curiae teneatur Decanum Ecclesiae suum Constituere in ipsius absentia Commissarium. Also by the Statutes and Constitutions of this Court made by Matthew Parker Archbishop of Canterbury , it is expressly Ordained, That neither the Dean or Official of the Court of Arches, nor the Auditor of matters and Causes in the Court of Audience of Cant. nor the Judge of the Prerogative Court, shall exercise the Function or Profession of an Advocate in any Court belonging to the Jurisdiction of the said Archbishop, on pain of Excommunication and Suspension . In this Court of the Arches the Proctors thereof do wear such Hoods, as Bachelors of Arts use to wear in the Universities; which Habit or Formality was first enjoined by Henry Chichley Archbishop of Canterbury, in the year 1435. . The style of this Court is, Alma Curia Cant. de Arcubus Lond. And the Appeal from it doth lie to the King in Chancery .

(5.) This Court of the Arches anciently holden in Bow-Church of London, is of very great Antiquity; the Lord Coke in the forecited place lets us to understand, that he meets with it in a very Ancient Record of a Prohibition , In Curia Christianitatis cotam Decano de Arcubus London. The Statutes and Ordinances of which Court are very Ancient, and to which Those ordained by Robert Winchelsey Archbishop of Canterbury, above 380 years since, do refer: Robertus Winchelse Archiepiscopus Cantuariensis descripsit Judicibus, Advocatis, Procuratoribus, aliisque ministris Almae suae Curiae de Arcubus jura quaedam & Statuta, quae ipse in Templo Arcuato sedens pro Tribunali legit atque obligavit. Quinto Idus Novemb. Anno 1295. William de Sardinia being then his Official, and Henry de Nassington Dean of the Arches, the said Officials Commissary General; By which Statutes it was Ordained, That the Advocates belonging to the said Consistory, should not exceed the number of Sixteen; nor the Proctors above the number of Ten; nor should any of them, without the special License of the President of that Consistory, absent themselves thence, by any attendance on any other Consistory, at such times wherein Causes were to be heard in the Arches ; And for the dispatch of the Causes of poor and indigent persons, the Judge may by the said Statutes assign them Advocates and Proctors to prosecute for them Gratis & Charitative, and that nothing be paid for the Process, Acts of Court, Examinations, Sentence, or other Court-Fees in such Cases . In which Court the Senior Advocates by the same Statutes are to take their places opposite to the Judge, the others on each side of him, nigher to, or remoter from him according to their Seniority; the like Order in Court to be observed also by the Proctors. And such was the devotion of those days in that Consistory, That in order to an imploring of the Divine assistance on their proceedings in Judgment, it was further Ordained, That Divine Service should be celebrated in Bow -Church immediately before the first, and after the last Cession of every Term, the Judge, Advocates, Proctors, and other Officers of the Court to be present thereat.

(6.) The Prerogative Court of the Archbishop of Canterbury is that Court, wherein all Testaments are proved, and Administrations granted of the Goods and Chattels of such persons, as dying within his Province, had at the time of their death Bona Notabilia in some other Diocese, than that wherein they died; which Bona Notabilia regularly must amount to the value of Five pounds, save in the Diocese of London, where it is Ten pounds by Composition. The Probat of every Bishops Testament, and the granting of the Administration of his Goods and Chattels, albeit he hath not Goods but within his own Jurisdiction, doth belong to the Archbishop. The like Court hath the Archbishop of York. From this Court lies the Appeal to the King in Chancery. If one make two Executors, one of seventeen years of Age, and the other under, Administration during the Minority is void, because he of seventeen years old may execute the Will, if Administration during the Minority in such case be granted; And if the Administrator brings his Action, the Executor may well release the Debt. One was cited to appear in the Prerogative Court of Canterbury, which lived out of the Diocese of Canterbury, and upon that he prayed Prohibition upon the Statute of 23 H. 8. c. 9. which willeth, that none shall be cited to appear out of his Diocese, without assent of the Bishop, and Prohibition was granted: And yet it was said, that in the time of H. 8. and Q. Ma. that the Archbishop of Canterbury had used to cite any man dwelling out of his Diocese, and within any Diocese within his Province, to appear before him in the Prerogative-Court, and this without the assent of the Ordinary of the Diocese: But it was Resolved by the Court, that this was by force of the power Legatine of the Archbishop, that (as Lindwood saith) ought to be expressed in the Prohibition, for the Archbishop of Canterbury, York, Pisa, and Reymes, were Legati nati, and others but Legati à latere. The Lord Coke, in his Institutes, par. 3. cap. 69. gives us the Resolutions upon the Statute of 21 H. 8. cap. 5. That if a man makes his Testament in paper, and dieth possessed of Goods and Chattels above the value of 40 l. and the Executor causeth the Testament to be transcribed in parchment, and bringeth both to the Ordinary, &c. to be proved; It is at the Election of the Ordinary, whether he will put the Seal and Probat to the Original in paper, or the Transcript in parchment, but whether he put them to the one or to the other, there can be taken of the Executor, &c. in the whole but 5 s. and not above; viz. 2 s. 6 d. to the Ordinary, &c. and his Ministers, and 2 s. 6 d. to the Scribe for Registring the same: or else the said Scribe to be at his liberty, to refuse the said 2 s. 6 d. and to have for writing every ten Lines of the same Testament, whereof every Line to contain ten inches, one penny. If the Executor desire that the Testament in paper may be transcribed in parchment, he must agree with the party for the Transcribing; but the Ordinary, &c. can take nothing for that, nor for the Examination of the Transcript with the Original, but only 2 s. 6 d. for the whole duty belonging to him. Where the Goods of the deceased do not exceed five pound, the Ordinary, &c. shall take nothing, and the Scribe to have only for writing of the Probat six pence: so the said Testament be exhibited in writing, with Wax thereunto affixed ready to be sealed. Where the Goods of the deceased do amount to above the value of five pound, and do not exceed the sum of forty pound, there shall be taken for the whole but 3 s. 6 d. whereof to the Ordinary, &c. 2 s. 6 d. and 12 d. to the Scribe for Registring the same. Where by Custom less hath been taken in any of the Cases aforesaid, there less is to be taken. And where any person requires a Copy or Copies of the Testament so proved, or Inventory so made, the Ordinary, &c. shall take for the Search, and making of the Copy of the Testament or Inventory (if the Goods exceed not five pound) six pence; and (if the Goods exceed five pound, and exceed not forty pounds) twelve pence. And if the Goods exceed forty pounds, then two shillings six pence, or to take for every Ten lines thereof of the proportion before rehearsed, a penny. And when the party dies Intestate, the Ordinary may dispose somewhat in pious uses, notwithstanding the Act of 31 Ed. 3. but with these Cautions: (1) That it be after the Administration granted, and Inventory made, so as the state of the Intestate may be known, and thereby the sum may appear to be competent. (2) The Administrator must be called to it. (3) The use must be public and godly. (4) It must be expressed in particular. And (5) There must be a Decree made of it, and entered of Record.

(7.) The Court of Audience, Curia Audientiae Cantuariensis. The Lord Coke touching the Jurisdiction of Courts, taking notice of this of the Audience among other of the Ecclesiastical Courts , says, That this Court is kept by the Archbishop in his Palace, and meddleth not with any matter between party and party of any contentious Jurisdiction, but dealeth with matters pro forma, and Confirmations of Bishops Elections, Consecrations, and the like, and with matters of voluntary Jurisdiction, as the granting of the Guardianship of the Spiritualties Sede vacante of Bishops, Admissions and Institutions to Benefices, dispensing with Banns of Matrimony, and such like. This Court did belong to the Archbishop of Canterbury, and was in point of Authority equal with, but in point of Dignity and Antiquity inferior to the Court of Arches. It seems that Anciently the Archbishop of Canterbury did hear divers Causes of Ecclesiastical cognizance Extra-judicially, and at home in his own Palace, wherein, before he would come to any final determination, his usage was to commit the discussion thereof to certain persons learned in the Laws Civil and Canon, who thereupon were styled his Auditors, whence in process of time it center'd in one particular person styled, Causarum Negotiorumque Audientiae Cantuariensis Auditor seu Officialis: And from hence the Original of this Court is properly derived. With this office of the Auditor the Chancery of the Archbishop is said to have been heretofore commonly joined, not controverting any matters of contentious Jurisdiction in any decisions of Causes between Plaintiff and Defendant, but such only as were Voluntariae Jurisdictionis & ex Officio, touching such things only as are fore-specified, and such like. By the Provincial Constitutions it is Ordained, That for the ease of the People they may at times convenient (to be assigned by the Bishop) have access to their Diocesan, Et quod Praelati pers •• . liter Audiant quaerelas in his Cathedral, or next Parochial Church, vel in aliqua Maneriorum suorum Capella, si talis fuerit. Lindw. de Offic. Jud. Ord. cap. Statuimus. in gloss. verb. in Publico. It seems not altogether improbable, but that from the practice hereof this Court of Audience anciently had its Original, as aforesaid; And although it be not now in use as heretofore, yet considering the Subject-matter it only took cognizance of, it was a good Expedient to prevent many Suits at Law in Foro Contentioso.

(8.) Faculty [or, Court of Faculties ] in the sense here meant and intended, must not be understood according to its original and genuine signification, but as a term of Art according to a limited construction, restrained under that peculiar notion and particular understanding which the Law hath of it, in reference to a branch of the Ecclesiastical Jurisdiction: And so it is understood and commonly used for that Privilege or especial Power, which is legally granted to a man by License, favor, indulgence, and dispensation to have or do that, which otherwise by the Canon Law he could not; as to eat Flesh upon days prohibited; to Marry without Banns first published; to hold Two or more Ecclesiastical Benefices incompatible; the Son to succeed the Father in his Benefice, and such like. A Faculty granted to one, who is not Incumbent, to take a void Benefice, is void: But a Faculty to one, who is Incumbent of a Benefice to retain the same, is good. It is called Faculties in the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of the Court of Faculties, although it holds no Plea of Controversy . It belongs to the Archbishop of Canterbury, and his chief Officer thereof is called Magister ad Facultates, whose power is to grant Dispensations to the ends and purposes aforesaid; and so may every Diocesan, as to that of Marriage, and eating of Flesh on days prohibited. Faculty (according to Sir Ed. Coke in the place fore-cited) signifies a Dispensation: so that Facultates (in this sense) Dispensationes & Indulta are Synonyma. Who likewise there says, that this Authority was raised and given to the Archbishop of Canterbury by the Statute of 25 H. 8. c. 21. whereby Authority is given to the said Archbishop and his Successors to grant Dispensations, Faculties, &c. by himself or his sufficient and substantial Commissary or Deputy for any such matters, commonly called the Master of the Faculties, and of all such matters as whereof heretofore such Dispensations, Faculties, &c. then had been accustomed to be had at the See of Rome, or by Authority thereof. For by the Stat. of 28 H. 8. c. 16. it appears, the Bishop of Rome did grant Faculties and Dispensations to the Kings Subjects, as, Pluralities, Unions, Trialities, Appropriations, Commendams, Exemptions. And the Judgment of Parliament expressed in the Preamble of that Statute of Faculties is very remarkable to this purpose; where it is recited, that the Bishop of Rome had deceived and abused the Subjects of the Crown of England, pretendig and persuading them, That he had full power to Dispence with all human Laws, Uses, and Customs of all Realms, in all Causes which be called Spiritual: which matter hath been usurped and practiced by him and his Predecessors for many years, to the great derogation of the Imperial Crown of England. For whereas the said Realm of England, recognizing no Superior under God, but the King, hath been, and yet is, free from subjection to any man's Laws, but only to such as have been devised, made, and Ordained within this Realm for the weal of the same, or to such other as by sufferance of the King and his Progenitors the People of this Realm have taken at their free liberty, and by their own consent, to be used among them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of the Laws of any Foreign Prince, Potentate, or Prelate; but as to the accustomed and ancient Laws of this Realm, originally established as Laws of the same by the said sufferance, consent, and custom, and not otherwise: it standeth with natural equity and good reason, that all such human Laws made within this Realm, or induced into this Realm by the said Sufferance, Consent, and Custom, should be Dispenced with, abrogated, amplified or diminished by the King and his Parliament, or by such persons as the King and Parliament should authorize, &c. Vid. 21 H. 7. 4. a. where it is said, That certain Priests were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded, that the King of England, and not the Pope, before the making of the said Statute of Faculties, might de jure Dispence with the Ecclesiastical Law in that and other cases. For although many of our Ecclesiastical Laws were first devised in the Court of Rome, yet they being established and confirmed in this Realm by acceptance and usage, are now become English Laws, and shall no more be reputed Roman Canons or Constitutions: As Rebuffus speaking De Regula Cancellariae Romanae de verisimili notitia, Haec Regula (says he) ubique in Regno Franciae est recepta, & est Lex Regni effecta, & observatur tanquam Lex Regni, non tanquam Papae Regula; & Papa eam revocare non potest. The Kings of England from time to time in every Age before the time of H. 8. have used to grant Dispensations in Causes Ecclesiastical; For whereas the Law of the Church is, That every Spiritual person is Visitable by the Ordinary, King William the Conqueror by his Charter Dispenced with the exempted the Abbey of Battle from the Visitation and Jurisdiction of the Ordinary in these express words, Sitque dicta Ecclesia libera & quieta in perpetuum ab omni subjectione Episcoporum, & quarumlibet personarum dominatione, sicut Ecclesia Christi Cantuariensis, &c. whereby he Dispences with the Law of the Church in that Case Vid. libr. De vera differentia Regiae potestatis & Ecclesiasticae. Edit. 1534. where that whole Charter is recited at large. The like Charter was granted to the Abbey of Abingdon by King Kenulphus, 1 H. 7. 23, & 25. and Cawdry 's Case, Co. par. 5. fo. 10. a. So likewise every Appropriation doth comprize in it a Dispensation to the Parson Imparsonee, to have and retain the Benefice in perpetuity, as appears in Grendon 's Case. Plow. Com. 503. In which Act the King by the Common Law shall be always Actor, not only as Supreme Patron, but also as Supreme Ordinary; as is also observed in Grendon 's Case. For the King alone without the Pope may make Appropriations. 7 E. 3. Fitz. Quare Impedit 19. And in the Case of Malum prohibitum, and Malum in se, in 11 H. 7. 12. a. it is held, That the King may dispence with a Priest to hold Two Benefices; and with a Bastard, that he may be a Priest, notwithstanding the Ecclesiastical Laws which are to the contrary. And as he may dispence with those Laws, so he may pardon all Offences contrary to these Laws, and his Pardon is a bar to all Suits pro salute Animae, or reformatione morum, and all Suits ex Officio in the Ecclesiastical Court. Hall 's Case, Coke 5. par. fo. 51. In all Faculties or Dispensations, for the holding of Two Benefices, granted at the Court of Rome, there was always a particular Derogation or Non obstante the right of Patronage of Lay-Patrons, and of the right of the King by name express, where the Patronage belonged to him, otherwise the Faculty was void; For by the Canon Law the Lay-Patrons ought to be called to give their Consents in all Cases of that nature; And if such a particular Non obstante were not added in the Faculty, then there was inserted another Clause, viz. Dummodo Patronorum expressus accedat Consensus; also by another Clause Authority was always given to the Official or Archdeacon, or other Ecclesiastical Minister, to put him, to whom the Faculty is granted, into possession of the Benefice cum acciderit. And because by the Canon Law the Patron's consent was ever requisite in a Commenda, for that reason in every Faculty or License granted by the Pope to make a Permutation, Union, or Appropriation of Churches, these words were ever added, viz. Vocatis quorum interest, which chiefly intends the Patron. And which Union and Approbation shall not according to the Common Law be made without the Patron's assent. Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Ass. p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon 's Case, Plow. Com. 498. a. A Faculty or Dispensation is of such force, that if a Clerk be presented to a Benefice with Cure, and be Admitted, Instituted, and Inducted into the same, so that the Church is full of him, if afterwards he be presented to another Benefice Incompatible, or elected to a Bishopric, and before he is Instituted to the second Benefice, or be created Bishop, he obtain a Faculty or Dispensation to retain the first Benefice Perpetuae Commendae titulo, that is, for his life, that Faculty or Dispensation shall be of such effect, that the former Benefice shall not be void by acceptance of the Second, or by promotion to the Bishopric; but he shall remain full and perfect Incumbent of the first Benefice during his life. In the time of H. 6. when Henry Beaufort, Great Uncle to the King, being Bishop of Winchester, was made a Cardinal, and after that purchased from the Pope a Bull Declaratory, that notwithstanding he were made Cardinal, yet his Bishopric of Winchester should not be void, but that he might retain the same as before; yet it was held, That the See of Winchester was void by assuming the Cardinalship, which exempts the Bishop from the Jurisdiction of his Metropolitan; And for that the Cardinal fell into a Praemunire, for which he purchased his Pardon, which is sound among the Charters 4 H. 6. in Archivis Turr Lond. 6, & 7 Eliz. Dyer 233. a. Jo. Packhurst being elected to the Bishopric of Norwich, before that he was created Bishop, obtained a Faculty or Dispensation from the Archbishop of Canterbury (by force of the Statute of Faculties ) to retain a Parsonage which he had before in Commendam, for Three years, viz. à Festo Michaelis An. Dom. 1560. usque ad idem Festum, in An. 1563. Before the first Feast of St. Michael, Packhurst is created Bishop, and afterwards he resigned the Benefice. And the Question was, whether that Benefice became void by the resignation of Packhurst, or by his promotion to the Bishopric? And it was adjudged, That the Church became void by his Resignation: Which proves, That by virtue of the said Faculty or Dispensation he continued Parson until he had Resign'd. Vid. N. Br. 36. h. If a Parson who hath a Faculty or Dispensation to hold his Rectory, be created a Bishop, and after the Patron present another Incumbent, who is Instituted and Inducted, now the Bishop shall have a Spoliation against that Incumbent; which proves that his real possession in the Parsonage always continued by virtue of the said Faculty or Dispensation. And in this Case of a Commendam in Sir Joh. Davis Reports, this difference is put between a Faculty to take a Benefice, and a Faculty to retain a Benefice, viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice, is void: And a Faculty to one who is Incumbent of a Benefice to Retain the same Benefice, is good. By virtue of these Faculties, Dispensations, and Provisions from the Pope, Edmond the Monk of Bury, who was a Minister in the Court of King Ed. 3. had many Benefices; as appears in the foresaid Case of the Bishop of St. David's, 11 H. 4. And Hankford said in the same Case, fo. 191. a. That by virtue of such