To The
Right Reverend Father in God,
Edmund,
Lord Bishop of
London,
Dean of the Chapels Royal,
And one of the
Lords of his Majesty’s Most Honourable Privy Council.
My Lord,
The following System of Ecclesiastical Law, extracted from your Lordship’s Codex, and publish’d with your Permission, naturally shelters itself under your Lordship’s Patronage. As it is Originally your own, your Lordship had an undoubted Right to it : nor could I think of any other Way, more proper than this Address, of expressing my most thankful Acknowledgments of the Honour you have done me, in permitting me to be an Instrument, under your Lordship, of promoting the Knowledge of our Ecclesiastical Constitution and Laws ; and of conveying, in some Measure, the excellent Instructions and Observations, which are to be met with in your Codex, into the Hands of many, who might otherwise have wanted that Benefit and Satisfaction.
Your Lordship will, I hope, pardon me, if besides the discharging a Debt both of Justice and Gratitude, I lay hold of this Opportunity to gratify an Ambition, which I have long had, of subscribing to the many publick Testimonies of your Lordship’s Merit. Not that I shall attempt, my Lord, to enlarge upon those great Virtues and Abilities, of which your Lordship gave very early Specimens, and which have ever since been indefatigably employed in the Advancement of Religion and Learning, and in the Service of the Publick. I shall only beg Leave to say, that the Zeal which your Lordship has so frequently, and so seasonably, expressed against the Immoralities and Corruptions of the Age ; the Concern you have manifested for supporting the Rights and Discipline of the Established Church, both in your excellent Writings, and in the Execution of your Episcopal Office ; the Vigilance, Wisdom, and Resolution with which you have opposed Infidelity, and the admirable Provision you have made against the spreading Infection of it, in your most judicious Pastoral Letters, have given your Lordship the justest Title to the Esteem and Veneration of all, who have at Heart the Cause of Virtue, the Interest of the Church of England, or the Honour and Preservation of our most Holy Religion. Of this Number, I beseech your Lordship to account me one, and, as such, to be with the most profound Respect, and with my hearty Prayers, that God would long continue your Lordship an Ornament and Support to his Church.
My Lord,
Your Lordship’s,
Most devoted and most
Obedient Humble Servant,
The
Preface.
This Abstract was at first drawn up for my particular Satisfaction and Information, in such Things as I think it nearly concerns every Clergyman to be well acquainted with, viz. the Nature and Constitution of the Established Church, its Government and Discipline, and the Rights, Privileges, and Duties of its Ministers. Nor should I have presumed to have carried my Thoughts further in it, than to my own private Use, if * the Intimation given by that excellent Prelate, from whose Work it is taken, of his having intended something of this Nature himself ; had not made it rather wish’d for than expected from his Lordship, considering the Multiplicity of Business which attends his High Station ; and if, when I laid it before him for his Commands upon it, he had not with great Goodness and Condescension, approv’d of the Design, and very readily consented to the Publication of it.
* Out of both which ( if God spare my Life ) I would willingly draw a plain Analytical System of English Ecclesiastical Law, in the Nature of an Institute, and recommend it to be perused, after the other Systems, by such Persons in the Universities, as are designed for Holy Orders, to initiate them in the Study and Knowledge of our Ecclesiastical Constitution. Preface to the Codex, pag. 8.With this Encouragement, I thought I could not do a more acceptable Service to my Brethren of the Clergy, and to young Students in the Universities who are designed for Holy Orders, than to give them, at an easy Expence, the Substance of a Book so highly Useful and valuable ; the great Reputation wbereof amongst the most eminent Professors both of the Common and Civil Law, has made it very Rare to be met with, and at a Price more than double to the first Subscription.
This favourable Reception of the Codex sufficiently justifies the Wisdom and Discernment of the learned Author of it, who foresaw that, how useful soever Abridgments might be in their proper Place, “Nothing under the Original Laws and Constitutions at length was capable of giving full Satisfaction to the Mind” ; and which therefore, with incredible Thought and Labour, he has set before us at one View, and in their proper Order and Succession ; with a Commentary consisting of Variety of Matter, and containing whatever tended to the Illustration or Improvemenet of any Part of them.
Of this great Work, for which the Church and Clergy of this Nation stand so deeply indebted to his Lordship, I have attempted to give the Publick a faithful, and I hope not unuseful, Abstract. As to the particular Manner in which I have executed this Design, my Reason for throwing it into the Way of Question and Answer will, I think, be obvious, in that it both quickens the Attention, and assists the Memory. I have also forborn to clog the Body of the Book with Authorities and References, which, in my Opinion are foreign to the Nature of an Abridgment, and serve only to embarass Ordinary Readers. It might be thought sufficient to have referred These, once for all, to the Authority of the Codex itself, since if they have not That, ’tis highly probable they are also without the greatest Part of the Law Books it refers to. However, as this System may possibly fall into the Hands of some, where that is not the Case ; or who, having the Codex, may yet be desirous of being directed, Immediately, to the Original Authorities, I have subjoined in the Appendix a Compleat Table of them for that Purpose, with the respective Pages, both of the Codex and System, where they are made Use of.
The Reader ( whose Candour I intreat for any any Omissions or Mistakes that I way possibly have made ) ought also to be acquainted that he will find some Things, though neither many nor considerable, in the System, which are not in the Codex. Such Additions as I had an Opportunity of making from other Books, relating to this Subject, and such Alterations as have been made in Point of Law by Statutes, subsequent to the Publication of the Codex, are inserted in their proper Places, and referred to their proper Authorities.
A
System
Of
English Ecclesiastical Law.
Introduction.
Question.
What do you mean by English Ecclesiastical Law ?
Answer. The Law of the Church of England ; or, that Part of the Law which concerns the Administration of Ecclesiastical Matters, under the Prince as supreme Head of the Church, as it stands distinguished from the Administration of Temporal Matters, under the same Prince, as Supreme and Sovereign in the State.
Q. How many Branches are there of Ecclesiastical Law ?
A. Two : One, which relates to contentious Jurisdiction, or Causes between Party and Party ; and another which relates to voluntary Jurisdiction, or such Matters as concern Order and Discipline in the Church.
Q. How come Causes Matrimonial, Causes Testamentary, and the like, to be cognizable by Spiritual Authority ?
A. The Right which the Church has to Cognizance in these Cases, is founded only upon the Concessions of Princes, enforced by the Authority of Law and Custom.
Q. What Original has the Power which is vested in the Bishops for due Administration of Government and Discipline in the Church of England ?
A. A two-fold Original ; from the Word of God, and from the Laws of the Land. ‡
‡ Gibson, Codex, pag. 7.—“Jurisdiction in the Church by Divine Right”
“The Power which is vested in the Bishops, for the due Administration of Government and Discipline in the Church of England, appears by the Form of Consecration to have a twofold Original, From the Word of God, and from the Laws of the Land:
—Will you maintain and set forward, as much as shall lie in you, Quietness, Love, and Peace, among all Men; and such as be unquiet, disobedient, and criminous, within your Diocese, correct and punish, according to such Authority as you have by God’s Word, and as to you shall be committed by the Ordinance of this Realm?”
Q. What Proof have you of this two-fold Original in a legal Sense ?
A. The Right which the Bishops of the Church of England have to exercise Discipline upon the Foot of Divine, as well as by Human Authority, is plainly recognized in the Form of Consecration ; which warrants every Bishop, in the clearest and fullest Terms, to claim Authority, by the Word of God, as well as by the Ordinance of this Realm, for the correcting and punishing of such as be unquiet, disobedient and criminous ( i.e. for the Exercise of all manner of spiritual Discipline ) within his Diocese.
Q. How does this amount to a Recognition of such Power in the Bishops in a legal Sense ?
A. Because it has been confirmed by Parliament four several Times, viz. By the Act of Edw. VI. and in three several Acts of Uniformity, whereby the Forms of Consecration and Ordination have been confirmed, together with the Book of Common Prayer.
Q. But do not the Laws relating to the Royal Supremacy, made in the Reigns of Hen. VIII. Edw. VI. and Q. Elizabeth, say, That all Ecclesiastical Authority is in the Crown, and derived from thence ? How are these Expressions, and others of the like Import, to be understood ?
A. The principal Intent of all such Laws and Expressions, was to exclude the usurped Power of the Pope ; and they must be interpreted consistently with that other Authority, which our Constitution acknowledges to belong to every Bishop by the Word of God.
Q. What Power is it then that is agreed, on all Hands, to be derived from the Crown ?
A. Jurisdiction in Foro Exteriori ; or, The external Exercise and Administration of Justice and Discipline, in such Courts, and in such Ways and Methods, as are by Law and Custom establish’d in this Realm.
Q. Is the Church a mere Creature of the State ?
A. No : Because from what has been said, it appears clearly, that she has a Divine Right to the Exercise of Spiritual Discipline.
Q. But is not this to make the Church Independant of the State ?
A. No : Because ’tis acknowledged at the same time, that the External Administration of that Discipline, and of all Ecclesiastical Matters, in establish’d Courts, and establish’d Forms, is by Authority from the Crown, and in SubOrdination to the Royal Supremacy.
Q. Is this Authority vested in the Bishops only ?
A. Originally in the Bishops only, to whose Office that Power is annexed, and who, on that Account, have what we call Ordinary Jurisdiction ; but by Delegation to Others also, who assist them in the Exercise and Administration of it, and who are intitled by them to the Honour and Privilege of being their Assistants.
Q. Who are they that have this delegated Power ?
A. They are either those who, however originally delegated, have long obtained the Exercise of Ordinary Jurisdiction, as belonging of course, and without any express Commission, to their several Offices ; such as Archdeacons, Deans, Deans and Chapters, and Prebendaries ; or those whose Power is properly delegated ; such is that of Chancellors, Commissaries, and Officials, which they exercise by express Commission from the respective Ordinaries, to whose Stations or Offices such Powers are annexed.
Q. What is the Office of a Chancellor ?
A. The Name of Chancellor seems to have grown in Use in Imitation of the like Title in the State, inasmuch as the proper Office of a Chancellor, as such, was to be Keeper of the Seals of the Archbishop, or Bishop : But in fact, there are two Offices united in those whom we now call Chancellors of Bishops, which Offices the Law hath carefully distinguish’d, viz. that of Official and Vicar General.
Q. What is the proper Work of an Official ?
A. The Hearing of Causes in the Consistory Court.
Q. What is that of a Vicar General ?
A. The Correction of Manners, and Punishment of Vice, and all other Parts of Episcopal Jurisdiction, except that of Hearing Causes.
Q. Whence did the Office of a Vicar General take its Rise ?
A. He was an Officer occasionally constituted, when the Bishop was called out of the Diocese by foreign Embassies, or Attendances in Parliament, or other Affairs, publick or private ; and the Bishops, before the Reformation, being frequently employed in Affairs and Offices of State ; and many of those who were not so employ’d, being, as at all Times they have, and will be, Aged and Infirm ; by these Means the Vicar General came to be a fix’d and standing Officer, who should be ready ( without the Trouble of a special Commission for every Occasion ) to execute the Episcopal Power when the Bishop himself was hindred by Infirmities, Avocations, and other Impediments.
Q. How came the two Powers of Official and Vicar General to be united ?
A. The Officials being usually resident within the Diocese, and at the Episcopal See, and also, being Persons of great Worth, and in Holy Orders, they were frequently employ’d as Vicars General of the Bishops on such Occasions, ’till, by Degrees, the two Powers came to be united in the same Person, and mixed in the same Commission.
Q. Did this Mixture of Powers alter the Nature of the Powers themselves ?
A. No : Because, though held by the same Person, they were conveyed, as well as held, under the same Conditions and Limitations that they were in their separate State.
Q. Under what Limitation stood the Office of a Vicar General in its separate State ?
A. The Bishop was under no Necessity of appointing a Vicar General ; and when appointed, his Power only took Place when the Bishop, by Avocation or Infirmity, was disabled.
Q. Does it remain so now in its united State ?
A. Yes, it may be appointed, or not appointed, at the Pleasure of the Bishop ; who may either execute those Powers, i.e. do his own proper Duty in Person, or issue special Commissions, as special Occasions call for them : And, being appointed, the Person is still under the Bishop’s Directions, as to exerting, or not exerting the Powers that belong to it : So that whatever Necessity there may be upon the Bishop to appoint an Official or Chancellor for the Hearing of Causes, the voluntary Jurisdiction is left solely in himself, to be exercised in such Manner, or conveyed under such Restrictions and Limitations, as he shall judge best for the Order and Discipline of the Church.
Q. What Use do you make of this Observation ?
A. To clear the Constitution of our Church from a Reproach that is often cast upon it, viz. the Administering its Government and Discipline by the Hands of Laymen : For from what has been said concerning Chancellors and their Commissions ( and the same holds good in the Case of Commissaries, and of the Officials of Archdeacons ) it is evident, that no Administration that is properly spiritual, can come into any Hands whatever, otherwise than by the voluntary Choice, and express Act or Concurrence of the Bishop himself ; and therefore, with regard to the Constitution of our Church, the Administration of Discipline by Laymen is merely accidental.
Q. What is a Commissary ?
A. Officialis foraneus, or a Person appointed to hear Causes in remoter Parts of the Diocese by special Commission.
Q. What is an Archdeacon’s Official ?
A. One who has the Authority and Jurisdiction of the Archdeacon delegated to him.
Q. You have hitherto been speaking of the Power of the Church, and the proper Administrators of that Power : What are the Laws by which it is to be administred ?
A. Common Law, Canon Law, and Statute Law.
Q. What is the Common Law of the Church ?
A. Jus non scriptum Ecclesiasticum ; or Ancient Custom, and immemorial Practice relating to spiritual Affairs ; which is a Law or Rule of the same Force and Obligation in the Spiritual Administration, that the like immemorial Practice, relating to Temporal Affairs, is in the Temporal Administration.
Q. Where may we become best acquainted with the Common Law of the Church ?
A. In the Commentaries of Lyndwood and John de Athon ; the first upon the Provincial, the second upon the Legatin Constitutions ; whose Authority, especially that of the first, is greatly regarded in the Courts of Civil and Canon Law, not only as the Opinions of Persons eminently learned in both Laws, but chiefly, as they are Witnesses of the Practice of the Church of England in their respective Ages. Which Practice, in very many Cases, having continued the same, and been derived down to the present Age, upon their Evidence and Authority, their Rules are become, in Effect, the Common Law of the Church, and in that Respect deserve great Regard, not only in the Spiritual, but also in the Temporal Courts.
Q. What are the Provincial Constitutions ?
A. Such as were publish’d from Time to Time by several Archbishops of Canterbury, from Stephen Langton, who was Archbishop Anno 1206, Temp. Joannis R. to Henry Chichley inclusive, who was Archbishop Anno 1414, Tem. Hen. V.
Q. What were the Legatin Constiutions ?
A. Such as were made in National Synods or Councils, held here by the Pope’s Legates, Otho and Othobon, the former of which was Legate from Gregory IX. Anno 1230, the latter Anno 1268.
Q. How is the Canon Law divided ?
A. Into Foreign and Domestick.
Q. What is the Foreign ?
A. That which we commonly call the Body of the Canon Law, consising of the Canons of Councils, Decrees, and Decretals.
Q. What are the Decretals ?
A. The Decretals were collected and digested by Order of Pope Gregory IX. consisting mainly of Papal Decisions in the Time of himself and his Predecessors. Which Decisions were made either in Councils, or upon particular Disputes, which were occasionally appealed to Rome, and determined there, and those Determinations signified to the Parties concerned by decretal Epistles.
Q. Upon what Foot do we receive foreign Canons, &c.
A. They obtained in England, by Virtue of their own Authority, in like Manner as they did in other Parts of the Western Church, ’till the Time of the Reformation ; and from that Time have continued upon the Foot of Consent, Usage, and Custom.
Q. Did the Church of England admit and practise those Rules absolutely ?
A. No ; only with these two Restraints, that they were adapted to the Constitution of this Church, and so were proper Rules ; and not contradicted by the Laws of the Land, and so were legal Rules.
Q. How far were they received ?
A. As in all Cases, where no Rule was provided by our Domestick Laws, the Body of the Canon Law was received by the Church for a Rule ‡ ; so there was no Objection against receiving it in any Instance whatever, unless it appeared, in that particular Instance, to be foreign to our Constitution, or contrary to our Laws.
‡ “generally speaking, the Statutes which relate to the Church, are only Enforcements of the ancient Ecclesiastical Laws: and some of them are copied, in effect, from Ecclesiastical Proceedings, with Additions of new Penalties or the like“. Preface to the Codex, pag. 4.Q. What are Domestick Canons ?
A. Those which have been made from Time to Time by Ecclesiastical Authority, within this Realm, whether before, or since the Reformation.
Q. What do you mean by Ecclesiastical Authority ?
A. As England is governed by two distinct Administrations, one Spiritual, for Matters of a Spiritual Nature, and the other Temporal, for Matters of a Temporal Nature ; so for the same Ends hath it two Legislatures, the one consisting of Persons Spiritual, and the other of Persons Temporal : Whose Business it is to frame Laws for the Government of Church and State ; and these Laws, being enacted and confirmed by the Prince, as Sovereign and Supreme Head, become Obligatory to the People, and Rules for Administration of Justice, in Spiritual and Temporal Matters.
Q. Were the Canons and Constitutions made in Provincial Synods, always enacted and confirmed by the Prince ?
A. No ; before the Reformation they received their last Confirmation from the Metropolitan, who had also Power to publish and promulge them. But by a Statute in the 25th of Henry VIII. ’tis provided, that no Constitutions should thenceforth be enacted or promulged without the King’s Royal Assent and License. Which Statute is a Recognition and Affirmance of the Legislative Power of the Church, only subjecting it to greater Restraints than it had before.
Q. With what Limitations and Restrictions do the Canons and Constitutions that have been made since that Statute, enjoy their Force and Authority ?
A. When the Matter of a Canon is merely Ecclesiastical, and not contrary to the Prerogative Royal, nor to the Statutes and Customs of the Realm, such Canon is properly Part of the Law of the Land ; and it hath been resolved, that when the Convocation make Canons concerning Matters which properly appertain to them, and the King hath confirmed them, they are binding to the whole Realm.
Q. What Canons have we so authorized ?
A. Those made in the Convocation of the Province of Canterbury, in the first Year of King James I. and which are therefore distinguished by the Name of the Canons of 1603. They are generally taken, and in many Places by Repetition Word for Word, from Canons and Constitutions made in the Reign of Q. Elizabeth, and which being confirmed only for herself, and not expressly for her Heirs, are thought to have lost their Authority by her Death, ’till many of them had new Life given them in these Canons of 1603, which were also receiv’d, and pass’d two Years after in the Province of York.
Q. What is the Statute Law, considered as Part of the Ecclesiastical Law of England ?
A. Statutes made from Time to Time to enforce both Common and Canon Law, and which are therefore to be considered as Supplemental to both ; for the Quiet and Security of the Clergy against Oppressions and Invasions of all Kinds, and for the Assistance of the Church, by Addition of Temporal Penalties, in Cases which Spiritual Censures could not easily reach, or in which they were like to prove ineffectual.
Q. Of what Nature are Statutes which concern the Church and Clergy made before the Reformation ?
A. They are directly levelled against Violences committed upon their Possessions or Persons, and against the Incroachment of the Temporal Courts upon the Spiritual Jurisdiction.
Q. What hath the State done with Regard to the Church since the Reformation ?
A. It hath interposed by many Acts, for the Suppression of Vice and Immorality, for the better Ordering of the Possessions of the Church, the Augmentation of her Revenues, and the more easy Recovery of her just Rights.
Q. Are the Rubricks in the Liturgy a Part of the Statute Law of the Land ?
A. Undoubtedly ; as having been confirmed in Parliament by the several Acts of Uniformity, in the Reigns of Edward VI. Q. Elizabeth, and Charles II.
Q. Are the Articles commonly called the XXXIX Articles, a Part of the Statute Law ?
A. Yes, they are properly so, tho’ Originally made in Convocation, as they are required to be subscribed and assented to by an express Act of Parliament, 13 Eliz. c. 12. These were mostly taken from a like Body of Articles compil’d in the Reign of King Edward VI.
Tit. I.
How, and upon what Account, have the Clergy been distinguished from the Laity, in respect of their Rights and Privileges ?
A. The Clergy, being devoted and consecrated to the immediate Service of Religion, have ever been the peculiar Care of Christian States, who have expressed that Care in providing for their Maintenance, Quiet and Security, and supporting them in their Privileges and Immunities.
Q. What Instance have you of this in our own Nation ?
A. ’Tis observable that divers of our Kings, before the Conquest, particularly Edward the Elder, Edgar, Canute and Edward the Confessor, begin their Laws with special Provisions for the Liberties of the Church and Clergy. And the first Article of Magna Charta, or the Confirmation of Liberties ganted by Henry III. Anno 1225, is in these Words : “First, we have granted to God, and by this our present Charter, have confirmed for us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable.”
Q. What is the Meaning of Granting to God ?
A. When any thing is granted for God, it is deemed in Law to be granted to God ; and whatsoever is granted to his Church, for his Honour, and the Maintenance of his Religion and Service, is granted for and to God.
Q. What is here meant by the Church of England ?
A. All Ecclesiastical Persons within the Realm, their Possessions and Goods.
Q. What Care hath been taken for the Preservation of this Charter ?
A. It was confirmed and attested by many Bishops and Abbots, and Temporal Lords, and A. 1253, a most solemn Excommunication and Sentence of Curse, was, by Authority of Parliament, ordered to be denounced against all those who should then in any Point resist or break, or in any Manner hereafter procure, counsel, or anywise assent, to resist or break it ; or go about it, by Word or Deed, openly or privily, by any Manner of Pretence or Colour. It was afterwards renew’d and made perpetual by King Edward I, confirm’d again by King Edward III. and in several subsequent Parliaments.
Q. What further Instance can you give of the Regard of the State to the Clergy ?
A. Besides this and other general Confirmations of the Rights of the Clergy, in Conjuncion with those of the Laity, we meet with divers Acts and Clauses specially in Favour of our Church and Clergy, and many of them made at the special Request of the Commons in Parliament, whose Petitions frequently begun with some general Clause to that Effect.
Q. Does the Prince at his Coronation, promise any Thing in Behalf of the Church ?
A. Yes : It is now become Part of the Coronation Oath, that he will preserve unto the Bishops and Clergy of this Realm, and to the Churches committed to their Charge, all such Rights and Privileges as by Law do or shall appertain to them, or any of them.
Q. What are those Rights and Privileges ?
A. They are such as concern either their Persons or their Possessions.
Q. What are the Privileges and Immunities of the Clergy as to their Persons ?
A. By Common Law a Clergyman may not be compell’d to serve in a Temporal Office ; nor to serve in the Wars in Person ; nor his Body taken by Force of any Process a upon a Statute Staple, or Statute Merchant ; nor in an Acion of Account, &c. be arrested by Capias.
Clerymen are not obliged to serve on Juries, nor to appear at Turns and Leets.
The laying violent Hands upon a Clerk shall be punished by Excommunication or Penance, unless in Case of an Arrest by Process of Law ; but for an Assault only, it has been held that the Suit ought to be at Common Law.
Clergymen shall not be arrested whilst they attend to Divine Services upon grievous Forfeiture, by 50 Ed. III. c. 5. upon Pain of Imprisonment, by 1 Rich. II. c. 15. provided there be no Fraud or Collusion.
Q. What shall be construed Attendance upon Divine Service, with Regard to these Statutes ?
A. My Lord Coke says, he saw a Report, in the Time of Queen Many, wherein it was held, that eundo, morando, redeundo, to celebrate Divine Service, the Priest ought not to be arrested, nor any who aids him in it.
Q. What Privileges have the Clergy in Criminal Cases ?
A. They are used like other Men, except as to the burning in the Hand for Felony, from which, upon producing their Orders, they ought to be freed. And tho’ they have had the Privilege of the Clergy for a Felony, yet they may again have their Clergy, and so cannot a Layman.
Q. What are the Privileges of the Clergy, with regard to their Possessions ?
A. By the Common Law a Clergyman is not bound to pay Tolls, or other like Customs, for his Ecclesiastical Goods, nor to pay towards the Repairs of Bridges or Banks, by Reason of his Ecclesiastical Possessions ; and, the Law has provided Special Writs in Maintenance of these Exemptions. But the later Opinion hath been, That the Clergy are liable to all publick Charges, imposed by Act of Parliament, where they are not specially excepted. So that for want of Special Provisoes in their Behalf, their ancient and unquestionable Right seems now to be utterly extinguished, with regard to those Exemptions from Secular Burdens, which, till later Days, they have had an undisturb’d Enjoyment of.
Q. What Privileges have they, with regard to Estate and Interest, by Statute ?
A. They are to be amerc’d, not according to their Benefice, but their Lay-Tenement, by Magna Charta : Nor shall the King’s Officers make Distresses of their Beasts in the King’s Highway, and in Fees ( i.e. ) Lands wherewith Churches have been endowed, except such as are newly purchased. 9 Edw. II. c. 9.
Q. What is the visible Church of Christ ?
A. A Congregation of faithful Men, in the which the pure Word of God is preached, and the Sacraments duly administered, according to Christ’s Ordinance, in all those Things that of Necessity are requisite to the same. Art. 19.
Q. Is the Church of England a True and Apostolical Church ?
A. Yes : And to deny her to be so, or to call the Government of the Church of England antichristian, or repugnant to the Word of God, or to affirm that such Ministers as refuse to subscribe to the Form and Manner of God’s Worship in the Church of England, and their Adherents, may truly take unto them the Name of another Church not establish’d by Law, &c. shall be Excommunication. Canons 3. 7. 10.
Q. How is the Church of England said to be by Law establish’d ?
A. With Regard to the several Canons and Statutes made for the Establishment and Preservation of the Doctrine, Worship, Discipline, and Government thereof.
Q. What are the most remarkable of those Statutes ?
A. The Statute 13 Eliz. c. 2. intituled, An Act for the Ministers of the Church to be of sound Religion ; and that of 13 Car. II. c. 4. commonly called, The Act of Uniformity : Both which, with all and singular other Acts, at that Time in Force, for the Security of the true Protestant Religion, professed and establish’d by Law in the Church of England, by Stat. 6 Ann. c. 5. are to remain and be in full Force for ever. And in the same Statute ’tis enacted, that every King or Queen shall, at their Coronation, swear to maintain and preserve inviolably the said Settlement of the Church of England : And that the said Act shall for ever be holden, and adjudg’d a fundamental and essential Part of the Union between England and Scotland.
Tit. II.
Who is the Supreme Head of the Church ?
A. The King’s Majesty, under God, is the only supreme Governor of this Realm, and of all other his Highness’s Dominions and Countries, as well in all Spiritual or Ecclesiastical Things or Causes, as Temporal ; and no foreign Prince, Person, Prelate, State, or Potentate, hath, or ought to have, any Jurisdiction, Power, Superiority, Pre-eminence, or Authority, Ecclesiastical or Spiritual, within his Majesty’s said Realms, Dominions, and Countries. Can. 36.
Q. What is included in the Notion of the King’s Supremacy ?
A. Not that the Kings or Queens of this Realm, Possessors of the Crown, may challenge Authority and Power of ministering of Divine Service in the Church ; but that only Prerogative, which we see to have been given always to all godly Princes, in holy Scriptures by God himself, that is, that they should rule all Estates and Degrees committed to their Charge by God, whether they be Ecclesiastical or Temporal, and restrain with the Sword the Stubborn and Evil-doers. 39 Art. 37.
Q. When was the King’s Supremacy first recogniz’d ?
A. The first Recognition of this Supremacy was made by the Clergy in Convocation, upon the Occasion of a Grant of 100000l. made by them to obtain from King Henry VIII. a general Pardon of all Forfeitures by them incurr’d upon the Statutes of Provisors and Praemunires ; particularly for their having submitred to the Legatine Authority of Cardinal Wolsey, contrary to the Tenor of the said Statutes.
Q. Was this Recognition readily made ?
A. The Grant of the Subsidy, as to the Money, appears to have passed the Convocation quickly and easily ; but the King refused to accept the Gift, or grant the Pardon, unless after the words Ecclesiae & Cleri Anglicani, in the Form of the Grant, they would add, Cujus Protector & Supremum Caput is solus est ; and this was for some Time under Debate : But the King was not to be satisfied without it, and at length it was agreed to in these Words, Ecclesia & Cleri Anglicani cujus singularem Protectorem, unicum & Supremum Dominum, & quantum per Christi legem licet, etiam Supremum Caput, ipsius Majestatem recognoscimus.
Q. Was this Recognition of the Supremacy by the Clergy thought sufficient ?
A. For Corroboration and Confirmation thereof it was afterwards enacted, by Authority of Parliament, 26 Hen. VIII, c. 1. that the King, his Heirs and Successors, Kings of this Realm, should be taken, accepted, and reputed the only Supreme Head in Earth of the Church of England, and have and enjoy, annex’d and united to the Imperial Crown of this Realm, as well the Title and Style thereof, as all Honours, Dignities, Pre-eminences, Jurisdictions, Privileges, Authorities, Immunities, Profits, and Commodities, to the said Dignity appertaining ; with full Power and Authority, from Time to Time, to visit, repress, redress, reform, order, correct, restrain and amend, all such Errors, Heresies, Abuses, Offences, Contempts and Enormities whatsoever, which, by spirirual Authority or Jurisdiction, ought, or may be lawfully reformed, &c.
Q. Does this Act still continue in Force ?
A. This Act, and all other Acts and Statutes against the Papal Supremacy were repealed by Queen Mary, and the Authority of the See of Rome again establish’d ; ’till in the first Year of Queen Elizabeth, an Act was passed to restore to the Crown the ancient Jurisdiction over the Estate Ecclesiastical and Spiritual, and abolishing all Foreign Powers repugnant to the same.
Q. How was this Jurisdiction thus annex’d to the Crown to be executed.
A. By Virtue of a Clause in the said Act, it might be executed by Commissioners, under the Great Seal ; and a High Commission Court was accordingly erected : But upon Account of their exceeding their Commission, both as to the Extent and Exercise of their Authority, it was abolish’d by Statute 17 Car. I. c. 11. and enacted, that no such Court as the High Commission should be erected for the future. And accordingly the Commission granted by King James II. and all other Commissions and Courts of the like Nature, are now declared by Act of Parliament, ( 1 Will. & Mar. c. 2. ) illegal and pernicious.
Q. What Censure does the Canon inflict upon the Impugners of the King’s Supremacy ?
A. Excommunication ipso facto. Canon 2.
Q. What Penalty is there upon refusing the Oath of Supremacy ?
A. A Praemunire, of which see above.
Tit. III.
Did the Encroachments of the See of Rome meet with no Opposition in England till the Reformation ?
A. Tho’ the Authority of that See within this Realm was not utterly extinguish’d till the Reformation, yet the Usurpations and Encroachments of it had been frequently and vigorously oppos’d by our Kings and Parliaments long before that Time, as appears from the Constitutions of Clarendon, and the several Statutes of Provision and Praemunire.
Q. What are the Constitutions of Clarendon?
A. Articles sworn to and sign’d both by the Clergy and Laity, at a Convention of the Lords Spiritual and Temporal, at Clarendon in Wiltshire, in the Reign of Hen. II. in Recognition of the Rights of the Crown, particularly forbidding Appeals to Rome without the King’s Licence, and appointing the Trial of criminal Clerks before secular Judges.
Q. What are the Statutes of Provision ?
A. Statutes made in the Reigns of Edw. III. Rich. II. and Hen. IV. against Provision of Benefices and the Provisors or Procurers thereof.
Q. What was Provision of Benefices?
A. An Encrcachment of the Pope upon the Rights of the King and lawful Patrons, whereby he provided a Bishop of a Bishoprick, or other Person of an Ecclesiastical Living, before the Incumbent was dead.
Q. What Penalty was there upon those who sued for or purchased such Provision ?
A. At first, Imprisonment without Bail, till they should make Fine to the King, and Satisfaction to the Party griev’d : Afterwards it was a Praemunire and perpetual Banishment.
Q. What is the Statute of Praemunire ?
A. That which is commonly and especialy call’d the Statute of Praemunire, is a Statute made in 16 Ric. II. against purchasing Bulls, or other Instruments, from Rome, or elsewhere, in Derogation of the Crown and Regalty, tho’ it is incurr’d by the Transgression of several Statutes.
Q. Why it is call’d Praemunire ?
A. From the Words of the Writ, provided in that Case ( Rex vicecomiti, &c. Praemunire, vel praemonere facias praefatum A. B. quod sit coram nobis ) signifying the Offence, and appointing the Offender a certain Day to appear and answer it.
Q. What is the Judgment in a Praemunire ?
A. If the Person does not appear, or if, upon his Appearance and Pleading, the Issue be found against him, he shall be put out of the King’s Protection, ( i.e. be disabled to have any Action or Remedy by the King’s Laws, and the King’s Writs ) forfeit all his Lands and Goods, and be imprison’d and ransom’d at the King’s Will.
Q. What if he cannot be found ?
A. The Statute says the Exigent shall run against him.
Q. What is an Exigent?
A. A Writ in an Action personal, which goes out, when the Defendant cannot be found, nor hath any Thing in the County ; to the End that, after due Proclamation made, he may be out-law’d, and all his Goods and Chattels forfeited to the King, in case he do not appear.
Q. In what other Cases is Praemunire incurr’d ?
A. In several, which shall be taken Notice of in their proper Places : But in regard to Papal Encroachments, Praemunire was incurr’d by suing in a foreign Realm, or impeaching there any Judgment given in any of the King’s Courts, by taking a Benefice of an Alien, or conveying Money to him for the Farm thereof ; and by appealing to Rome from any of the King’s Courts : And to defend the pretended Jurisdiction of the Pope in this Realm, is a Praemunire for the first Offence, and High Treason for the second.
Q. In whom was vested the Power of Dispensations, when it was taken from the Pope ?
A. In the Archbishop of Canterbury for the Time being ; only with this Limitation, that he should grant them in Matters accustom’d, and not repugnant to the Law of God. 25 Hen. VIII. c. 21.
Q. What are the customable Cases of Dispenations ?
A. Many Cases were, at the Time of the original Conveyance of this Power to the Archbishop, dispensable, which have been since fix’d by particular Acts of Parliament, and render’d unalterable by Dispensation, as the Age requir’d for Institution to a Benefice, the Ages requir’d for Priests Orders, the Degrees within which Persons may, or may not marry, and several others ; the Cases, that are still dispnsable ( such as Pluralities, Unions, Commendams, Orders extra Tempora, and the like ) shall be taken Notice of under their respective Heads.
Q. Has the Archbishop, by Virtue of that Act, a Right of conferring Degrees of all Kinds ?
A. Yes : For among other Heads, in which Faculties had been customarily grantable, and which were now made grantable by the Archbishop, by Virtue of this Act, we find in the Book of Taxation, then ordered to be settled, these two that follow :
Creatio Doctorum in quacumque Facultate. 4l. Creatio aliorum Graduatorum in quacunque Facultate. 4l.
Which Power, as it hath not been abrogated or touched by any succeeding Law, so hath it been exercised, by the successive Archbishops, as a Right vested in their See, by no less Authority than that of Parliament ; to which Authority, as conveyed by this Act, special Reference is made in the Body of every Faculty that is granted upon this Head.
Q. Is it necessary that the Archbishop’s Dispensations should be confirmed by the King ?
A. If the Importance of the Instrument was such, that the Tax for the Expedition thereof at Rome amounted to 4l. or above, it must be confirmed under the Great Seal, and enrolled in Chancery ; but no Instrument under 4l. need be confirmed, unless the Party desire it.
Q. Who has the Power of granting Dispensations when the See of Canterbury is void ?
A. The Guardians of the Spiritualities, i.e. the Dean and Chapter of Canterbury.
Q. What if the Archbishop refuse to grant a Dispensation to any Person who upon a good, just, and reasonable Cause ought to have the same ?
A. The Lord Chancellor, upon Complaint made, shall enjoin him by the King’s Writ to signify the Cause of Refusal ; and finding the Cause to be good, shall allow such Refusal : But if it shall appear to be Wilfulness in the Archbishop, the King may send to him an Injunctcion to grant it, under a Penalty at Discretion ; and the Archbishop still refusing, shall forfeit the Sum appointed : And the King may commission two other Spiritual Prelates or Persons to do it, and it shall be as valid as if granted by the Archbishop.
Q. What if after good and due Examination the Archbishop finds the Cause to be just, and thereupon grants the Dispensation ?
Tit. IV.
How many Orders of Ministers does the Church of England allow ?
A. Three ; Bishops, Priests and Deacons, which have been since the Apostles Times.
Q. Who is to be accounted a lawful Bishop, Priest or Deacon, in the Church of England ?
A. None but he who is called, tried, examined, and admitted thereunto, according to the Form of Consecration and Ordination, or hath had formerly Episcopal Consecration or Ordination. Preface to the Form.
Q. Doth not the Church of Rome acknowledge other Orders besides the three mention’d ?
A. Yes, five more, viz. Subdeacons, * Acolyths, Exorcists, Readers, and Ostiaries ; which being evidently erected for Convenience only, and not being immediately concerned in the Sacred Offices of the Church, were justly laid aside by our first Reformers.
* Acylythus dicitur, qui candelam vel cereum accensum fert, dum Evangelium legitur, &c.Q. What Censure does the Canon inflict upon those who impugn the Form of Consecrating and Ordering Bishops, Priests, and Deacons ?
A. Whosoever shall affirm that the said Forms are contrary to Scripture, unlawful or insufficient, shall be Excommunicated ipso facto. Canon 8.
Q. Was there not another Division of the Clergy before the Reformation ?
A. Yes, into Regular and Secular.
Q. What were the Regular ?
A. Those which lived under certain Rules, and were of some Religious Order ; and were called Men of Religion, or, The Religious : Such as Abbots, Priors, Monks, &c.
Q. What were the Secular ?
A. Those who liv’d not under any certain Rules of the Relious Orders, as Archbishops, Bishops, Deans, Archdeacons, Parsons, Vicars, Curates.
Tit. V.
Were the Bishopricks in England always Elective ?
A. No ; they were anciently Donatives, and bestowed per Traditionem Annuli & Baculi, as our Books of History and Law affirm, till about the eighth Year of Henry I. when they began to be Elective.
Q. Who is the Patron of them ?
A. Being all of the King’s Foundation, he is, in Right thereof, Patron of them all.
Q. What is the Manner of Electing them since the Reformation ?
A. The Dean and Chapter, signifying to the Prince the Death of the former Bishop, are to to pray Leave to elect another. Upon this the King grants his Licence to them under the Great Seal to proceed to an Election, laying no other Restraints or Limitations upon the Electors but only this, Rogantes quod talem vobis Eligatis in Episcopum & Pastorem, qui Deo devotus, Nobisque & Regno nostro utilis & fidelis existat. This is all the Restraint they are under from the Licence or Conge d’Eslire. But at the same Time there goes along wiih it a Letter missive, containing the Name of the Person whom they shall elect and choose, by Virtue of which they are to choose the Person so nam’d, and no other, in due Form, within twelve Days : And in Default of that, the King may nominate, and present by his Letters Patent to the Metropolitan, if a Bishop ; or if an Archbishop, to the Metropolitan and two other Bishops ; or else to four other Bishops, who shall consecrate him.
Q. What follows the Election ?
A. After the Person is elected, the Proctor constituted by the Dean and Chapter exhibits to him the Instrument of Election, and prays, quatenus eidem consensum & assensum fuos praebere dignetur ; which Assent is to be given by an Instrument in Form, in the Presence of a Notary-Publick : And after that, the King is certified of the Election made under their Seal. Upon this Certification the Person is stiled, Lord Elect of N.N. and doing Fealty and Homage to the King, the Election is certified under the Great Seal to the Archbishop, who is required to Confirm and Consecrate him.
Q. What is the Method and Order of his Confirmation ?
A. The Archbishop gives a Commission to his Vicar General to proceed to Confirmation, which is a long and formal Process : But the most observable Parts of it are, a Citation of all such as have any Objections against the Bishop Elect, to appear and offer them ; and a Deduction of all that has past in relation to the Election, and the Royal Assent, the Particulars whereof are exhibited by the Proctor of the Dean and Chapter to the Vicar-General. After which the Oaths of Supremacy, Simony, and Canonical Obedience, are taken by the Bishop Elect ; upon which Sentence is read, and subscribed by the Vicar-General, whereby the Election is ratify’d and decreed to be good.
Q. What follows Confirmation ?
A. After Confirmation, the Archbishop and Bishops proceed to Consecration, according to the Form established ; at which the personal Presence of as many Bishops of the Province as can conveniently come, is intended by the Laws of the Church, which admit of no Consecration as Canonical under the Number of Three ; the Necessity of which Number is also supposed by our own Constitution, requiring that the elected Bishop be presented to the Archbishop by two Bishops.
Q. What is required in Case of Translation ?
A. No more than Confirmation ; but that, and all that precedes it, is required and observed in Case of Translations, as much as in Creations.
Q. How soon is the Bishop invested with a Right to exercise spiritual Jurisdiction ?
A. After Election and Confirmation, and not before.
Q. When do the Dignities or Benefices which a Bishop was possessed of before his Election, become void ?
A. Not till after Consecration in the Case of a Creation, and after Confirmation in the Case of a Translation ; so that if a Commendam comes before Consecration in the first Case, and before Confirmation in the second, it comes Time enough.
Q. What Privilege is that which the Archbishop has under the Name of Option ?
A. Every Bishop, whether created or translated, is bound immediately after Confirmation to make a legal Conveyance to the Archbishop of the next Avoidance of one such Dignity or Benefice belonging to his See, as the said Archbishop shall choose or name.
Q. What if the Bishop dies, or is translated, before the present Incumbent of the Promotion chosen by the Archbishop shall die, or be removed ?
A. It is generally supposed, that the Option is void, inasmuch as the Grantor, singly and by himself, could not convey any Right or Title beyond the Term of his Continuance in that See.
Q. What Age is required in a Bishop ?
A. Every Man ; which is to be ordained or consecrated Bishop, shall be fully Thirty Years of Age.
Q. What is the Manner of Consecration ?
A. It is set forth in the Form of Consecration. The Act of Consecration is thus : ¶ The Archbishop and Bishops present shall lay their Hands upon the Head of the elected Bishop, kneeling before them upon his Knees, the Archbishop saying,
“Receive the Holy Ghost for the Office and Work of a Bishop in the Church of God, now committed unto thee, by the Imposition of our Hands, in the Name of the Father and of the Son and of the Holy Ghost. Amen. And remember that thou stir up the Grace of God, which is given thee by this Imposition of our Hands ; for God hath not given us the Spirit of Fear, but of Power and Love, and Soberness.”
¶ Then the Archbishop shall deliver him the Bible, saying,
“Give heed unto Reading, Exhortation and Doctrine. Think upon the Things contain’d in this Book. Be diligent in them, that the Increase coming thereby may be manifest unto all Men. Take heed unto thy self and to Doctrine, and be diligent in doing them ; for by so doing thou shalt both save thy self and them that hear thee. Be to the Flock of Christ a Shepherd, not a Wolf ; feed them, devour them not. Hold up the Weak, heal the Sick, bind up the Broken, bring again the Outcasts, seek the lost. Be so merciful that you be not too remiss ; so minister Discipline that you forget not Mercy : That when the chief Shepherd shall appear, you may receive the never fading Crown of Glory, through Jesus Christ our Lord. Amen.”
Q. Were there not formerly some other Ceremonies used in the Consecration of a Bishop ?
A. Anciently the Bible was laid upon the Head and ( according to the Rubrick 3 & 5 Ed. VI. ) upon the Neck. By laying it on the Head was signified the Subjection of him ( who was above all others ) to the Laws of Christ ; and by laying it on the Neck, the taking upon him the Yoke of Christ. At the Words be to the Flock, &c. according to 3 Edw. VI. the Pastoral Staff was delivered to the Bishop ; which Delivery, in the Roman Pontifical, is preceded by a Consecration of the Staff, and followed by the Consecration and putting on of a Ring, in Token of his Marriage to the Church ; of a Mitre, as the Galea Munitionis & Salutis, quatenus decorata facie & armato capite, cornibus utriusque testamenti, terribilis appareat Adversariis veritatis ; as also in Imitation of the Ornaments of Moses and Aaron : And of the Gloves, in Token of clean Hands and Heart to be preserved by him. All which, and many other Superstitions of the like Nature ( as savouring more of the Ceremonies of the Jewish than the Simplicity of the Christian Religion ) our reformed Church hath prudently and piously laid aside, in the Consecration of her Archbishops and Bishops, retaining only such outward Tokens as are most ancient and most grave.
Q. What if the Dean and Chapter refuse to Elect, or the Archbishop to Confirm and Consecrate ?
A. They shall incur a Praemunire.
Q. What are Temporalties of Bishops ?
A. The Temporalties are all such Things as a Bishop hath by Livery from the King, as Castles, Manors, Lands, and Tenements, Advowsons, Tithes, &c.
Q. When may the Bishop sue for his Temporalties ?
A. After Consecration, he shall be inthroniz’d or install’d, and have Restitution of his Temporalties out of the King’s Hands, and be completely Bishop.
Q. How is the Inthronizing of the Bishop performed ?
A. By Mandate from the Archbishop to his own Archdeacon ; but this is oftenest done by Proxy.
Q. What legal Privileges and Dignities belong to Archbishops and Bishops ?
A. They are declared PEERS OF THE LAND, 25 Ed. III. Stat. 3. c. 6. and are frequently stiled so in the Rolls of Parliament. They are one of the THREE ESTATES of the Realm, the Lords Temporal and the Commons being the other two ; as appears undeniably from the Language of Parliament in many Places, where the King is mentioned as distinct from the three Estates : And if the King is not one, the Bishops of Course must be one. Particularly in the Rolls of Parliament, 21 Rich. II. it is said, That many Ordinances had been disannulled, because the State of the Clergy were not present in Parliament at the making of them ; which State in a Statute 8 Eliz. c. 1. is called one of the GREATEST STATES of this Realm.
Q. If their Presence was so necessary in Parliament, how came they at any Time to be absent ?
A. In Obedience to the Canons they were obliged to withraw, when Judgments were given in Cases of Life and Member ; upon which Account they were constrained, at the Petition of the Commons, to appear by Proxy, to the End the Proceedings in Parliament might be valid, which, without the Presence of those who were to represent the State of the Clergy, either in Person or by Proxy, they could not be.
Q. Is there not a Distinction between Estates in the Kingdom and Etates in Parliament, so that the Bishops may be one of the First, and not the Second ?
A. This Distinction is meerly notional, and leaves one Estate unrepresented in Parliament.
Q : What other Privileges have the Lords Spiritual ?
A. They enjoy the same legal Privileges ( Trial by Peers excepted, if they have not that also ) that the Temporal Barons do ; as, in real Actions, to have a Knight returned in their Jury, as to a Day of Grace, hunting in the Kings Forests, and the like : Neither may they be compelled, more than any other Lords, to answer upon the Common Oath in Courts of Justice. None but the King ( i.e. none but the King’s Courts of Record, as the Court of Common Pleas, the King’s Bench, Justices of Gaol-Delivery, and the like ) can write to the Bishop to certify Bastardy, Loyalty of Matrimony, and the like Ecclesiastical Matters.
Q. What Method then have the inferior Courts in Corporations of obtaining such Certificate ?
A. Only by removing the Plea into the Court of Common Pleas ; upon which that Court writes to the Bishop, and then remands the Record.
Q. Have Archbishops and Bishops an Action of Scandalum Magnatum ?
A. Yes ; by 2 Rich. II c. 5. and subsequent Acts.
Q. What is the Offence when a Clerk slayeth his Prelate ?
A. Petit Treason : Which always supposeth a Trust or Obedience in the Offender of one kind or other.
Q. In what Capacity do Archbishops and Bishops sit in Parliament ?
A. Both in a Spiritual and Temporal Capacity.
Q. There is no Question to be made as to their Temporal Capacity, because they sit by Succession, in respect of their Baronies, Parcel of their Bishopricks ; but what Arguments are there of their Spiritual Capacity in Parliament ?
A. Tho’ their Baronies did put them more under the Power of the King,and under a stricter Obligation to attend ; yet, long before William the Conqueror changed their Bishopricks into Baronies, they were, as Bishops, Members of the Witena-gemot, or the Great Council of the Land. And an Argument of their Spiritual Capacity in Parliament is, that from the Reign of Edward I. to Edward IV. inclusive ( as appears by the Records ) great Numbers of Writs to attend the Parliament were sent to the Guardians of the Spiritualties, during the Vacancies of Bishopricks, or while the Bishops were in foreign Parts. The Writs of Summons also preserve the Distinction of Praelati & Magnates ; and whereas Temporal Lords are to appear in Fide & Ligeantia, quibus nobis tenemini ; in the Writs to the Bshops, the Word Ligeantia is left out, and the Command to appear, is, in Fide & Dilectione. And lastly, another Argument of this, is, that a Bishop Confirm’d may sit in Parliament, as Lord thereof, that is, as soon as ever he is invested with the Spiritualties, without being obliged to wait for his Temporalties.
Q. How do the Bishops take Place in Parliament ?
A. First the Archbishop of Canterbury, next to him the Archbishop of York, then the Bishops of London, Durham, and Winchester ; all the rest after their Antienties, i.e. secundum Ordinationis suae tempus.
Q. Do Bishops, being translated, pay new Fees upon their being introduced into Parliament ?
A. No ; nor Peers raised to higher Dignities.
Q. What Provision was there for the more convenient Attendance of the Bishops upon Parliament ?
A. The greatest Part of the Bishops of England had had Seats, or as they were commonly called, Places, in or near London, in which they were resident during their Attendance on Parliament, on the Court, or their own proper Occasions : And it was a great Advantage, in many Respects, that during those Attendances, they might freely exercise Jurisdiction in their respective Places, as in their own proper Dioceses.
Q. Are there any of this Kind now remaining ?
A. Only Lambeth-House and Croydon, belonging to the Archbishop of Canterbury ; Winchester-Place, now removed from Southwark to Chelsea ; and Ely-House in Holboun ; the rest being either exchang’d, or held in Lease of the Bishop to whom they belong.
Q. When a Bishop happens to be disabled from doing his Duty through Infirmities either of Body or Mind, what Provision does the Law make to supply that Defect ?
A. The Exercise of the Episcopal Office may be provided for by a Suffragan ; the Jurisdiction and Temporalties put under the Management of a Coadjutor.
Q. What are Suffragan Bishops ?
A. The same with the ancient Chorepiscopi, or Bishops of the Country, so called by way of Distinction from the proper Bishops of the City or See ; and they were common in England, taking their Titles from Places in Partibus Infidelium, or from Places in which, tho’ there were fix’d Sees, and they had been ordain’d to them, they could not remain with Safety.
Q. In what manner are Suffragans provided and allow’d by the Law ?
A. By a Statute 26 Hen. VIII. c. 14. ( which is still in Force, ) every Archbishop and Bishop disposed to have any Suffragan, shall name two Persons to the King, who shall choose one, and present him to the Archbishop for Consecration ; the Archbishop, together with two other Bishops provided for that Purpose by the Bishop nominating or nominate, shall consecrate him within three Months ; and being consecrated, he shall have all the Privileges of a Suffragan, but shall reserve no Profits, nor exercise Jurisdiction, but by the Appointment of the Bishop under his Seal, and for so long Time as the Commission shall be, upon Pain of Praemunire.
Q. What were the Privileges of a Suffragan ?
A. They were according to the Extent of their Commission, and ancient Custom ; and by the said Statute, Residence as Suffragan shall serve for Residence upon Benefice, and every Suffragan may have two Benefices.
Q. Had Suffragans the Privilege of a Seat in Convocation ?
A. Among other Branches of the Office of the ancient Chorepiscopi, it is clear that they had a Vote and Seat in Councils. And they, who were made pursuant to this Act, are by some concluded to have had the same Privilege in an English Convocation ; inasmuch as among the Members of the Lower House, Anno 1586 and 1588, we find some enter’d under that Name : But ’tis at the same Time observable, that they had other Capacities intitling them to sit there ; so that, tho’ the Style of Suffragan is added in the Entry, it appears not that they really sat in any other Capacity than as Dignitaries of the Church.
Q. How long have Suffragans been disus’d ?
A. One of the last Suffragan Bishops, if not the last, upon the Foot of this Act, was Dr. Stern, Suffragan Bishop of Colchester ; who was suspended for not appearing, as we are told in the Abstract from the Journal of Convocation in the Year 1606.
Q. What Towns are appointed to be the Sees of Suffragans ?
A. Thetford, Ipswich, Colchester, Dover, Guildford, Southampton, Taunton, Shaftsbury, Molton, Marlborough, Bedford, Leicester, Gloucester, Shrewsbury, Bristol, Penreth, Bridgwater, Nottingham, Grantham, Hull, Huntingdon, Cambridge, Pereth, Berwick, St. Germains in Cornwall, and also the Isle of Wight.
Q. Was the King oblig’d to give the Suffragans a Title within the Diocese they were to officiate in ?
A. Generally speaking the Titles were so given ; but the King was left at Liberty to give them from any of the Places mention’d.
Q. Were the Suffragans made in Virtue of this Act of the Order of Bishops ?
A. Undoubtedly, because the Act itself provides for their Canonical Consecration.
Q. What was their Business ?
A. To discharge all Offices merely Episcopal, yet confin’d to the Exercise of such Powers only, as they had Commission for from Time to Time, supposing the Bishop not wholly disabled. Ibid.
Q. What was a Coadjutor ?
A. A Person appointed by the Archbishop, where the Bishop was disabled, to take Care of the Voluntary Jurisdiction, as the mere Spiritual Purposes of the Diocese were provided for by a Suffragan.
Q. What were the Powers generally given to Coadjutors in their Commission ?
A. To collate, institute, and grant Commendas Canonicas in suis casibus, i.e. Dispensations to hold a second Benefice, for a Time, without Institution the granting of which was in the Power of the Bishops, and they in Fact frequently granted it.
Q. Are there any Rules for the Appointment of Coadjutors ?
A. There are many in the Canon Law, but the Use of them has been long laid aside.
Tit. VI.
What is proper to be considered under the Head of Ordination ?
A. The Necessity of Ordination itself, the Time, Place, and Manner of Ordaining ; the Titles, Age, Abilities, and other Qualifications of Persons to be ordain’d, their Oaths and Subscriptions ; together with the special Causes of Suspension from the Exercise of Orders receiv’d.
Q. What does the Church of England hold as to the Necessity of Ordination ?
A. That it is not lawful for any Man to take upon him the Office of publick Preaching, or ministering the Sacraments in the Congregation, before he be lawfully call’d, and sent to execute the same.
Q. Whom ought we to judge lawfully call’d and sent ?
A. Those which be chosen and call’d to this Work by Men who have publick Authority given unto them in the Congregation, to call and send Ministers into the Lord’s Vineyard. Ibid.
Q. What are the Times appointed for Ordination ?
A. The Times appointed in the Canon are the Jejunia quatuor Temporum, or Ember Weeks, which became the settled Times of Ordination about the fourth or fifth Century ; but upon urgent Occasion, with the Licence or Dispensation of the Archbishop, the Bishops may be authoriz’d to give Orders extra tempora praescripta.
Q. In what Place is the Bishop to ordain ?
A. In the Face of the Church, i.e. before the publick Congregation.
Q. What Title is necessary for such as are to be ordain’d ?
A. None shall be admitted into sacred Orders, unless he shall exhibit to the Bishop a Presentation of himself to some Ecclesiastical Preferment then void, in that Diocese ; or shall bring a true and undoubted Certificate that he is provided of some Church within the said Diocese, where he may attend the Cure of Souls, or of some Minister’s Place vacant, either in the Cathedral Church of that Diocese, or in some other collegiate Church, therein also situate, where he may execute his Ministry : Or that he is Fellow, or in Right as a Fellow, or to be a Conduct or Chaplain in some College in Cambridge or Oxford : Or except he be a Master of Arts of five Years standing that liveth of his own Charge in either of the Universities ; or except, by the Bishop himself that doth ordain him, he be shortly after to be admitted either to some Benefice or Curateship then void. Canon 33.
Q. What if the Bishop ordain without a Title ?
A. He shall keep and maintain the Person whom he so ordains, with all Things necessary, till he prefer him to some Ecclesiastical Living, upon Pain of Suspension from giving Orders by the Space of a Year. Ibid.
Q. Are Persons giving Titles to Temporary Cures under the like Obligation ?
A. The same may be, and has been requir’d, of the Person entitling, in case the Clerk ( ordained upon such Title ) should at any Time want convenient Maintenance.
Q. Can a Bishop ordain one of another Diocese ?
A. Not without Letters Dimissory from the Bishop of whose Diocese he is, upon Pain of Suspension from giving Orders for two Years ; except he be of one of the Universities * ; for such are sufficienter Dimissi, and may be ordain’d by what Bishops they please.
* That is, a Member of some College, so as that he may be ordain’d, ad Titulum Collegii sui.Q. Can the Archbishop, as Metropolitan, grant Letters Dimissory ?
A. No, except in the Time of his Metropolitical Visitation of any Dioceses ; during which he may both grant Letters Dimissory, and ordain the Clergy of the Diocese visited.
Q. Who has the Right of granting Letters Dimissory during the Vacancy of a See ?
A. The Guardian of the Spiritualties, and in consequence the Right of Ordaining too, where such Guardian is of the Episcopal Order.
Q. Who has it when the Bishop is in Parts remote ?
A. He who is Vicar-General for that Time.
Q. To whom may Letters Dimissory be granted ?
A. To such Persons as were either born in the Diocese, or are promoted in it, or are resident in it. Tho’ Letters Dimissory in any of these Cases are good, the common Practice now is, to have them from the Bishop in whose Diocese the Title lies. Ibid.
Q. Ought the Fitness of the Person to be ordained ( as to Life, Learning, Title, &c. ) to appear, before the granting of Letters Dimissory ?
A. Yes : This has been the ancient Practice. See Appendix N. 7. §. 6.
Q. May Letters Dimissory be granted at once, ad omnes Ordines ?
A. Yes, and directed, Cuicunque Episcopo Catholico, at large.
Q. What is the Age required for Priests and Deacons ?
A. Deacons shall be twenty-three Years of Age, unless dispens’d with, and Priests shall be twenty-four complete, and no Dispensation is allowed.
Q. What Abilities and Qalifications are required in Persons to be ordained ?
A. By the 36th Canon, no Person shall be ordained except he hath taken some Degree of School in either of the Universities, or at the least, except he be able to yield an Account of his Faith in Latin, according to the XXXIX Articles, and to confirm the same by sufficient Testimonies out of the Holy Scriptures : And except moreover he shall then exhibit Letters Testimonial, of his good Life and Conversation, ( and by 13 Eliz. c. 2. of his professing the Docrine express’d in the said Articles, ) under the Seal of some College of Cambridge or Oxford, where before he remain’d, or of three or four grave Ministers, together with the Subscription and Testimony of other credible Persons, who have known his Life and Behaviour by the Space of three Years next before. Canon 34.
Q. What is requir’d by our Canons with regard to the Examination of such as are to be made Ministers ?
A. The Bishop, before he admit any Person to Holy Orders, shall diligently examine him in the Presence of those Ministers that shall assist him in the Imposition of Hands ; and if the said Bishop have any lawful Impediment, he shall cause the said Ministers carefully to examine every such Person so to be order’d. Provided that they who shall assist the Bishop in examining and laying on of Hands, shall be of the Cathedral Church, if they may conveniently be had, or other sufficient Preachers of the same Diocese, to the Number of three at least. Canon 35.
Q. What is the regular Method of Examination ?
A. According to a Canon upon that Head, inserted in the Body of the Canon Law, the Candidates for Ordination are to be examin’d for three Days together before the Ordination Sunday, in the Presence of the Bishop and his Assistants, as to their Age, Title, Morals, Learning, &c. See Appendix No. 7. §. 1. 3.
Q. Does not this Examination of common Right belong to the Archdeacon ?
A. It does : And this is also suppos’d in our own Form of Ordination, both of Priests and Deacons, where the Arcbdeacon’s Office is to present the Persons as apt and meet ; but in his Absence the Bishop may examine by himself, if he thinks fit, or appoint others who attend upon him to do it.
Q. What are the Oaths and Subscriptions requir’d of Persons to be ordain’d ?
A. They are to subscribe to the 39 Articles, the three Articles contain’d in the 36th Canon, and take the Oath of Supremacy.
Q. What are those three Articles ?
A. 1. That the King’s Majesty, under God, is the only supreme Governor of this Realm, and all other his Highness’s Dominions and Countries, as well in all Spiritual or Ecclesiastical Things or Causes, as Temporal ; and that no foreign Prince, Person, Prelate, State or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Pre-eminence, or Authority, Ecclesiastical or Spiritual, within his Majesty’s said Realms, Dominions and Countries.
2. That the Book of Common-Prayer, and of ordering of Bishops, Priests, and Deacons, containeth in it nothing contrary to the Word of God, and that it may lawfully so be used ; and that he himself will use the Form in the said Book prescribed in publick Prayer and Administration of the Sacraments, and none other.
3. That he alloweth the Book of Articles of Religion agreed upon by the Archbishops and Bishops of both Provinces, and the whole Clergy in the Convocation holden at London in the Year of our Lord God One Thousand Five Hundred Sixty and Two : And that he acknowledgeth all and every the Articles therein contained, being in Number Nine and Thirty, besides the Ratification, to be agreeable to the Word of God.
Q. What is the Form of Subscribing ?
A. “I N. N. do willingly, & ex animo, subscribe to these Articles above-mention’d, and to all Things that are contained in them.”
Q. What is the Oath of Supremacy ?
A. “I A. B. do swear, that I do from my Heart abhor, detest, and abjure, as impious and heretical, that damnable Doctrine and Position, that Princes excommunicated or deprived by the Pope, or any Authority of the See of Rome, may be deposed or murdered by their Subjects, or any other whomsoever.”
“And I do declare, that no foreign Prince, Person, Prelate, State or Potentate, hath or ought to have any Jurisdiction, Power, Superiority, Pre-eminence, or Authority, Ecclesiastical or Spiritual, within this Realm. So help me God.”
Q. What is the Manner of Ordaining Deacons ?
A. It is set forth in the Form of Ordination, the Act whereof is thus : The Bishop laying his Hands severally upon the Head of every one of them, humbly kneeling before him, shall say,
“Take thou Authority to execute the Office of a Deacon in the Church of God, committed unto thee in the Name of the Father, and of the Son, and of the Holy Ghost. Amen.”
¶ Then shall the Bishop deliver to every one of them the New Testament, saying,
“Take thou Authority to read the Gospel in the Church of God, and to preach the same, if thou be thereto licens’d by the Bishop himself.”
Q. What is the Office of a Deacon ?
A. To assist the Priest when he ministreth the Holy Communion, and to help him in the Distribution hereof, and to read Holy Scriptures and Homilies in the Church ; to catechise, to baptize in the Absence of the Priest, and to preach, if he be thereto admitted by the Bishop.
Q. Is it not a Part of his Office also to search for the Sick, Poor, and Impotent of the Parish, in order to their Relief ?
A. This is the most ancient Duty of a Deacon, and the immediate Cause of the Institution of the Order ; and ’tis declared to be their Office in the Form of Ordination : But then ’tis to be observed, that this Rule was made in England, while the Poor subsisted wholly by voluntary Charities, and before the Settlement of Rates, or other fix’d and certain Provisions ; pursuant to which Settlements, our Laws have devolv’d that Care upon the Church-wardens and Overseers of the Poor, which last Office was created on purpose for that End.
Q. How long shall a Deacon continue in that Office ?
A. A whole Year, unless dispens’d with by the Bishop : Bat the’ he may be made a Priest within Within the Year, yet no Person whatever shall be made Priest and Deacon in one Day. Canon 32.
Q. What Penalty is there upon a Deacon’s presuming to consecrate and administer the holy Sacrament of the Lord’s Supper ?
A. He shall forfeit for every Offence the Sum of One hundred Pounds, and be disabled from being admitted to the Order of Priesthood for a Year. 13 & 14 Car. II. c. 4.
Q. What is the Manner of Ordaining Priests ?
A. It is set forth in the Form of Ordination. The Act of Ordaining is thus : The Bishop, with the Priests present, shall lay their Hands severally upon the Head of every one of them, humbly kneeling upon their Knees, and the Bishop saying, “Receive the Holy Ghost, for the Office and Work of a Priest in the Church of God, now committed unto thee by the Imposition of our Hands : Whose Sins thou dost forgive, they are forgiven ; and whose Sins thou dost retain, they are retained : And be thou a faithful Dispenser of the Word of God, and of his Holy Sacraments ; in the Name of the Father, and of the Son, and of the Holy Ghost. Amen.”
¶ Then the Bishop shall deliver to every one of them, kneeling, the Bible into his Hand, saying,
“Take thou Authority to preach the Word of God, and to minister the Holy Sacraments in the Congegation, where thou shalt be lawfully appointed thereunto.”
Q. Does Ordination give the Priest Authority to preach without Licence ?
A. No : He may not preach without Licence, either of the King, or his respective Archbishop, Bishop, or other Ordinary, or one of the Universities of Cambridge or Oxford, in any Church or Chapel of which he hath not the Care. Canon 36.
Q. Is there any Fee due for Ordination ?
A. No Fee or Money shall be received either by the Archbishop, or any Bishop or Suffragan, either direcly or indirectly, for admitting of any into Sacred Orders : Nor shall any other Person or Persons under them receive for Parchment, Writing, Wax, Sealing, or any other Respect thereunto appertaining, above ten Shillings, under Penalty of the Law. Canon 35.
Q. What Penalty is there upon Simoniacal Ordination ?
A. By 31 Eliz. c. 6. If any Person shall, directly or indirectly, take any Reward, or Promise of it, to himself or Friends, for or to procure the Ordaining of any Minister, all ordinary or lawful Fees only excepted, he shall forfeit 40l. for every such Offence, and the Party ordained 40l. And if he shall take any Benefice or Ecclesiastical Promotion within seven Years after such corrupt receiving of Orders, it shall be void, and the Patron may present again.
Q. What are the special Causes of Suspension from the Exercise of Orders received ?
A. Persons illegitimate, who are ordained without Dispensation ; Persons ordained by other Bishops, without a Licence of their own Bishop ; Persons guilty of mortal Sin, or taking Orders for Lucre ; and all Irregulars before or after Orders, shall be suspended from the Execution of them.
Q. Who are Irregulars ?
A. Irregularity is a Canonical Impediment, arising from some infamous Crime, or Defect of Body or Mind, to take Orders ; or if already in Orders, to minister in the same : Those who are under this Impediment, are called Irregulars ; such are Homicides, Simoniacks, Advocates in the Cause of Blood, Bigami, and several others by the ancient Constitutions : But this Censure is now out of Use.
Tit. VII.
What Restraints are the Clergy under with regard to Secular Employments ?
A. By the 7th Canon they are forbid to give themselves to any base or servile Labour : And by 2 Hen. VIII. c. 13. ’tis enacted, That no Spiritual Persons shall take Lands to Farm, upon pain to forfeit ten Pounds for every Month he occupies them ( excepting the Temporalties of Bishopricks, during the Vacations ) nor buy and sell in the way of Merchandize, upon Pain to forfeit the treble Value, and the Bargain to be void.
Q. What if a Clergyman has not sufficient Glebe for the Expences of his House and Hospitality ?
A. He is in that Case allow’d to take such Ferm as is sufficient, and to buy and sell Corn and Cattle, &c. for the Management of it, provided he sells nothing but the Overplus without Fraud : And this Plea of the Glebe not being sufficient, hath been pleaded and allowed, as oft as any Action hath been brought upon this Statute.
Q. What Obligations are they under with regard to Life and Manners ?
A. They are bound by the Promise nmde by them at their Ordination, to frame and fashion themselves and Families, according to the Doctrine of Christ, and to make both themselves and them ( as much as in them lieth ) wholesome Examples of the Flock of Christ, particularly to maintain and set forward ( as much as lieth in them ) Quietness, Peace, and Love among all Christian People, and especially among them that are committed to their Charge.
Q. How is this Engagement further enforced by the Canon ?
A. No Ecclesiastical Person shall at any Time, other than for their honest Necessities, resort to any Taverns or Alehouses, neither shall they Board or Lodge in any such Places, nor give themselves to Drinking, or Riot, spending their Time idly, by Day or by Night, playing at Dice, Cards or Tables, or any other unlawful Game : But they shall, at all Times convenient, hear or read somewhat of the holy Scriptures, or shall occupy themselves with some other honest Study or Exercise ; always doing the Things which shall appertain to Honesty, and endeavouring to profit the Church of God, having always in Mind, that they ought to excel all others in Purity of Life, and should be Examples to the People to live well and Christianly, under Pain of Ecclesiastical Censures to be inflicted with Severity, according to the Quality of their Offences. Canon 75.
Q. What if a Deacon relinquish the Minisitry, and afterwards use himself in the Course of his Life as a Layman —— ?
A. The Church-wardens shall present him, and he shall be excommunicated. Canon 76.
Q. What is the Reason why all Churches have ever appointed the Clergy a distinct Habit ?
A. The true, ancient, and flourishing Churches of Christ, being ever desirous that their Prelacy and Clergy might be had as well in outward Reverence, as otherwise regarded for the Worthiness of their Ministry, did think it fit, by a prescript Form of decent and comely Apparel, to have them known to the People, and thereby to receive the Honour and Estimation due to the Special Messengers and Ministers of Almighty God.
Q. What does the Church of England enjoin in this Respect ?
Tit. VIII.
What is a Cathedral Church ?
A. A Cathedral Church is properly the See of a Bishop.
Q. Where ought the Sees of Bishops reguraly to be fix’d ?
A. In such Towns only as are Noted and Populous.
Q. What are the Privileges of a Cathedral ?
A. 1. Every Town which hath the See of a Bishop placed in it, is thereby intitled to the Honour of a City.
2. Every See or Catheral ( as such ) is exempt from Archidiaconal Jurisdiction.
3. The Cathedral-Church is the Parish-Church of the whole Diocese ; and resorting to it, to hear Divine Service, hath been affirmed, with great Probability, to be a Resorting to the Parish-Church, within the natural Sense and Meaning of the Statute.
4. In Honour of the Cathedral-Church, and in Token of Subjection to it, as the Bishop’s See, every Parochial Minister within the Diocese pays to the Bishop an annual Pension, call’d anciently Cathedraticum.
Q. Under what Name is it now paid ?
A. Under the Name of Synodaticum, because generally paid at the Bishop’s Synod at Easter.
Q. To whom belong the Ornaments of a Chapel of a preceding Bishop at his Death ?
A. Not to the Executors of the Deceased, but to the See or succeeding Bishop.
Q. What Residence is a Dean oblig’d to in his Cathedral Church ?
A. Every Dean, Master, or Warden, or Chief Governor of any Cathedral or Collegiate Church, shall be Resident in his said Church Ninety Days Conjunctim or Divisim in every Year at least ; except he be lawfully hindered by urgent Causes, to be approv’d by the Bishop, or in any other Sort lawfully dispensed with. Canon 42.
Q. What is the Difference between a Cathedal and a Collegiate Church ?
A. The Distinction between these, as well as the ancient Conventual Churches, may be gather’d from the Description given by Lyndwood of the several Names, Proprie loquendo, Capitulum dicitur respectu Ecclesiae Cathedralis ; Conventus respectu Ecclesie Regularis ; Collegium respectu Ecclesiae inferioris, ubi est Collectio viventium in communi.
Q. What Residence are Prebendaries bound to by the Canon ?
A. Such as are Residentaries shall divide the Year among them, so as that some of them shall be always Personally Resident ; and when their Residence is over, shall repair to their Benefices, from which Prebendaries at large shall not be absent above a Month in the Year, unless for urgent Cause, and certain Time, to be allowed by the Bishop.
Q. What Difference is there between a Canonry and a Prebend ?
A. The first is a Name of Office, the second only of Maintenance : And they are thus distinguish’d by Lynwood ; Canonia est Jus Spirituale quod aliquis assequitur in Ecclesia per receptionem in fratrem, & assignationem Stalli in Choro & Loci in Capitulo : Praebenda vero est jus Spirituale recipiendi certos proventus pro meritis in Ecclesia competentes percipienti ex divino Officio cui insistit ; & nascitur ex Canonia, tanquam filia a Matre.
Q. What is a Dean ?
A. An Ecclesiastical Secular Governor next under the Bishop, and Head of the Chapter.
Q. Why is he called Decanus or Dean ?
A. The ancient Name was Archi-Presbyter, or Head Presbyter of the College of Presbyters, who being ten in Number, gave Occasion from thence to the Name Decanus.
Q. Is a Deanry a Temporal Promotion, or may it be held, as such, by a Layman ?
A. A Deanry is a Promotion merely Spiritual, and might never be possess’d regularly by any Person but who was of the Order of Priestbood, as is plain from the ancient Name just mentioned.
Q. Is the Title of Dean a Title of Dignity ?
A. Yes, as coming within all the three Qualifications of a Dignity laid down by Lyndwood.
Q. What are the Qualifications which he lays down ?
A. Dignitas ( says he ) Cognoscitur, 1. Ex administratione rerum Ecclesiasticarum cum Jurisdictione. 2. Ex nomine & praelatione quam babet in Choro & Capitulo. 3. Ex Consuetetudine loci. By which Rules, no Stations in the Cathedral Church, under the Bishop, are Dignities, strictly speaking, besides the Dean and Archdeacon, unless where Jurisdiction is annexed to any of the rest, as in some Cases it is to Prebends, &c.
Q. What Difference is there between Deans of the Old and New Foundation, with regard to their Admission to their respective Dignities ?
A. Those of the Old Foundation come in by Election of the Chapter, upon the King’s Conge d’Elire, with the Royal Assent, and, Confirmation of the Bishop, much in the same Way as the Bishops themselves do ; those of the New come in by the King’s Letters Patent, upon which they are instituted by their respecive Bishops, and then installed upon a Mandate, pursuant to such Institution, and directed to the Chapters.
Q. What do you call Deanries of the rewr Foundation ?
A. Those which were either newly erected by King Hen. VIII. or changed by him from Abbots and Convents, or Priors and Convents, into Deans and Chapters.
Q. By what Authority did he do this ?
A. By Virtue of an Adt of Parliament, enabling him to erect new Bishopricks, Cathedral and Collegiate Churches, and to apply the Revenues of the dissolved Monasteries for their Endowment, and to devise Statutes, &c. for their Regulation and Government ; and all this by his Letters Patent under the Great Seal, in which, whatever was comprised and expressed, should be as valid and binding as if done by Authority of Parliament.
Q. What were the Names of those which were erected in pursuance of this Act ?
A. Besides those which were erected out of the dissolved Monasteries, viz. Canterbury, Winchester, Worcester, Ely, Carlisle, Durham, Rochester, and Norwich, he erected de Novo five other Cathedral Bodies, viz. Chester, Peterborough, Oxford, Gloucester, and Bristol, which he made Episcopal Sees, as also Westminster ; but the Bishoprick of this last Place was sunk, and the Monastery turn’d into a Collegiate Church by Queen Elizabeth.
Q. What was done with relation to the Statutes which the King was impowered to give the Cathedral Bodies he had erected ?
A. Statutes were drawn up and delivered to them, but not having been indented as the Act required, Doubts arose concerning the Validity of them, and therefore the same Power which had been granted to King Henry VIII. was afterwards granted to Queen Mary ; and after that, to Queen Elizabeth. And pursuant to the Powers vested in her by the Act in that Behalf, there seems to have been a Confirmation presently made of the Statutes : of King Henry VIII. for a Rule to the several Churches, until they could be Review’d and Reform’d. Afterwards New Statutes were prepared by the Archbishop and others ( Special Powers for that End having been inserted in the Body of the Ecclesiastical Commission ) ; and finish’d in the Month of July 1572, and the several Bodies were ready for the Royal Confirmation ; but this ( for what Reason, or by what Accident, appears not ) was never obtain’d. Nothing farther seems to have done in this Matter till 6 Ann. c. 21. when it was enacted, to prevent the Inconveniencies and Mischiefs which might arise from Doubts and Disputes concerning the Validity of the said Statutes, ( occasion’d by the Statutes 1 Mar. c. 9. and by the Loss of Records in the Civil Wars ) that such Statutes as had been usually practis’d, End sworn to since the Restoration, should be the Statutes of the respective Churches, so far as they were consistent with the Constitution of the Church of England, and the Laws of the Land ; reserving nevertheless to the Queen a Power, during her Life, to alter them, and to resume or settle the local Visitation of the said Churches in such manner, from Time to Time, as to her Majesty should seem meet.
Q. Does the Surrender of the Lands and Possessions of a Dean and Chapter dissolve the Corporation ?
A. No : Because the Ends for which they were instituted may be answered, tho’ they had no Temporal Possessions.
Q. For what Ends were Deans and Chapters instituted ?
A. To advise the Bishop in Spiritualties, and restrain him in Temporalties.
Q. If the Manor of a Prebend be recover’d by Title Paramount, does the Person still remain a Prebendary of the Church ?
A. Yes : Because he hath Stallum in Choro & Vocem in Capitulo.
Q. Is a Chapter of itself capable to take by Purchase or Gift ?
A. Not without the Dean, who is the Head of it.
Q. What Statute is there against Abuses in the Election to vacant Dignities ?
A. By 31 Eliz. c. 6. ’tis enacted, That if any Person or Persons, Bodies politick or corporate, shall take any Money, Fee, Reward, or any other Profit, directly or indirectly, either to him or themselves, or any other of their or any of their Friends, for his or their Voices, or Assent, in electing any Officer, Fellow, or Scholar into any College, Cathedral or Collegiate Church, School, Hospital, Hall, or other like Society, the Place shall be void, and may immediately be disposed of to another : And any Person receiving Money, or other Profit, directly or indirectly, to Resign, shall forfeit double the Sum ; and the Person giving the Money shall be uncapable of the Place, and another may be preferred to it : And this Act, and the local Statutes concerning Election, shall be read before every Election, upon Pain of 40l. Forfeiture from every Person in whom Default thereof shall be ; one Half to him that shall sue for the same, the other to the Use of the Society or Place where such Offence shall be committed.
Q. What Rules are to be observed concerning Habits in Cathedral and Collegiate Churches, &c?
A. In the Time of Divine Service and Prayers in all Cathedral and Collegiate Churches, when there is no Communion, it shall be sufficient to wear Surplices, saving that all Deans, Masters and Heads of Collegiate Churches, Canons, and Prebendaries, being Graduates, shall daily, at the Times both of Prayer and Preaching, wear with their Surplices such Hoods as are agreeable to their Degrees : The like is requir’d of all Masters and Fellows of Colleges or Halls, and all the Scholars and Students in either of the Universities, at the Time of Divine Service, upon all Sundays, Holy Days, and their Eves. Canons 25, 17.
Q. What Habit is requir’d in Cathedrals when there is a Communion ?
A. The principal Minister shall use a decent Cope, being assisted with the Gospeller and Epistler agreeably. Canon 24.
Q. Who is to administer the Holy Communion in all Cathedral and Collegiate Churches upon the principal Feast-Days ?
A. It shall be administred sometimes by the Bishop, if he be present, and sometimes by the Dean, and sometimes by a Canon or Prebendary.
Q. What Preaching is required of Deans and Prebendaries ?
A. They shall not only preach in their Cathedrals, according to Statute, but in other Churches of the same Diocese where they are resident, and especially in those Places whence they, or their Church, receive any yearly Rents or Profits. Canon 43.
Q. May Strangers preach in Cathedral Churches ?
A. No Stranger shall preach in Cathedral Churches, except he is a licens’d Preacher ; and and if any preach false Docrine, he shall be certified to the Bishop by the Dean, or the Residents who heard him, as soon as may be. Canon 51.
Q. Are Lecturers, being chosen in a Cathedral or Collegiate Church, obliged to read the Common Prayer ?
A. It shall be sufficient openly to declare their Assent. 13 Car. II. c. 4.
Tit. IX.
What was the Original of Parochial Churches ?
A. At first there was only one Church in each Diocese, viz. at the Place where the Bishop with his Clergy resided and performed all Divine Offices, as at London, Canterbury, &c. from whence, as Necessity required, Priests were sent out to preach and baptize in the remoter Parts of the Diocese ; but the Saxon Thanes, or Noblemen, did very early begin to erect lesser Churches for their own Convenience, which yet were not to be made Use of, till consecrated by the Bishop ; and it was many Ages before the Parochial Division of Dioceses was effected.
Q. When did that Work first begin ?
A. It cannot be precisely determined when it first began, or when it came to a Settlement : But it appears to have been so far advanced in King Edward the Confessor’s Reign, that in his Laws ’tis complain’d of, that in some Places there were three or four Churches, where there had been but one, by which Means the Maintenance of the officiating Priest was much lessened, especially because the Clergy, being rich while their Parishes were so large, would not be at the Trouble of prosecuting their Rights : Which, by being neglected, were in great Measure lost.
Q. May a Church be erected without the Leave and Consent of the Bishop ?
A. No : The Necessity of the Bishop’s Consent and License was made an express Law of the Church of England, in the Council of Westminster, and that in Conformity to the Rules both of the Civil and Canon Law long before.
Q. May a Church be consecrated, after it is erected, before it is Endow’d ?
A. No : In Strictness, by the Canon Law, the Endowment should be not only made before Consecration, but even ascertained and exhibited ; nay, by the Civil Law actually made before the Building be begun.
Q. Is there any Form of Consecrating of Churches, &c. provided in the Church of England ?
A. A Form of Consecrating Churches, and Chapels, and Church-Yards or Places of Burial, was sent down from the Bishops to the Lower House of Convocation, April 2, 1712, and altered by the Committee of the whole House, and reported to the House April 9, 1712, and agreed to with some Alterations ; By this Form, which has been generally observed, Divine Service is to be performed at the Consecration of every Church ; and the Consecration may be performed indifferently on any Day, according to ancient Usage.
Q. In the Consecration of a new Church, what Regard is to be had to Churches already Consecrated ?
A. Provision is to be made, that no Damage accrue to any other Church in Point of Rights or Revenues.
Q. May a Church once Consecrated be Consecrated again ?
A. No : Except in Case of Pollution by Effusion of Blood, in which Case the Canon supposes a Re-consecration ; tho’ the common Method in England was a Reconciliation only, as appears by innumerable Instances in our Ecclesiastical Records : In point of Ruin and Decay, a Reconciliation is sufficient, unless where a Church or Chapel is wholly new built.
Q. Does the Law take any Notice of Churches or Chapels till they are Consecrated by the Bishop ?
A. No : And this is the Reason why a Church or not a Church, a Chapel or not a Chapel shall be certified by the Bishop.
Q. May Divine Service be performed, and the Sacraments administer’d in Churches and Chapels not consecrated ?
A. The Canon Law supposes this may be done with the Consent of the Bishop, inasmuch as it provides, that a Church shall have the Privilege of Immunity, in qua Divina Mysteria celebrantur, licet adhuc non extiterit Consecrata ; and there are many Licences to that Effect ( granted on special Occasions ) in our Ecclesiastical Records.
Q. Is any Thing due to the Bishop who consecrates a Church, from the Person or Persons praying such Consecration ?
A. Yes ; a reasonable Procuration, ( not for the Consecration, but for the necessary Refreshment of the Bishop and his Servants ) the Measure and Proportion of which must be determin’d by the Usage of every Diocese.
Q. What Care is taken by the Law to keep consecrated Places from Violation and Profanation ?
A. By 13 Ed. I. Stat. 2. c. 6. No Fairs or Markets shall be kept in Churchyards : And by the 88th Canon, The Churchwardens and their Assistants shall suffer no Plays, Feasts, Banquets, Suppers, Church Ales, Drinkings, Temporal Courts or Leets, Lay Juries, Musters, or any other profane Usage to be kept in the Church, Chapel, or Churchyard ; neither the Bells to be rung superstitiously upon Holy days or Eves, abrogated by the Book of Common Prayer, nor at any other Times, without, good Cause, to be allowed by the Minister of the Place and themselves.
Q. What Penalty is there upon Quarrelling in the Church or Churchyard ?
A. By 5 Ed. VI. c. 4. Whosoever shall quarrel by Words only, chide or brawl in any Church, or Churchyard, shall be suspended by the Ordinary ; that is to say, if he be a Layman, ab Ingressu Ecclesiae : And if he be a Clerk, from the Ministration of his Office, for so long Time as the said Ordinary shall by his Discretion think convenient, according to the Fault ; and if he shall smite or lay violent Hands upon any other in Church or Church-yard, he shall be ipso facto excommunicate : Any Person maliciously striking with any Weapon in Church or Churchyard, or drawing any Weapon with Intention to strike with the same any other, and being convict thereof by the Verdict of twelve Men, or by his own Confession, or by two lawful Witnesses, shall have one of his Ears cut off ; and if he have no Ears, he shall be burnt in the Cheek, with an hot Iron having the Letter F. for Fray-Maker or Fighter, and stand ipso facto excommunicate : And that, as has been resolved, tho’ in his own Defence.
Q. A Does the Offenders being Excommninicate ipso Facto take away the Necessity of any Sentence of Excommunication ?
A. Yes : But nevertheless, he that strikes does not stand excommunicate, until he be thereof convicted at Law, and such Conviction transmitted to the Ordinary.
Q. To whom belongs the Fencing of the Churchyard ?
A. Tho’ the Freehold of the Churchyard is in the Parson, yet being the common Burial-Place of the Parishioners, the fencing and keeping of it in good Order belongs to the Parish, and the Churchwardens are to take Care of it accordingly.
Q. Who are to take Care of the Repairs of the Church ?
A. The Churchwardens shall take Care that the Churches ( i.e. all Parts of them, except the Chancel and private Isles or Chapels, belonging to private Persons ) be well and sufficiently repair’d, the Windows well glaz’d and the Floors kept paved plain and even, Canon 85. For doing of which, and for the Repairs of the Churchyard, they are enabled to make Rates, together with the Parishioners, assembled upon publick Notice given in the Church : And the major Part of them that appear, shall bind the Parish ; or if none appear, the Churchwardens alone may make the Rate.
Q. To whom belongs the Cognizance of Rates made for the Reparation of Churches and Churchyards ?
A. To the Spiritual Court ; and no Prohibition shall lie, where it punishes for the Neglect of it. 13 Edw. 1. c. 1.
Q. Does this hold without Exception ?
A. It has been declared, that where particular Persons are bound by Custom, to make good so much of the Fence as adjoins to their several Grounds, they shall be sued, upon Neglect, in the Temporal, and not in the Spiritual Court ; tho’ the said Statute 13 Ed. I. c. 1. seems to be absolute in all Cases.
Q. What Difference is there between a real and a personal Rate ?
A. A Rate for the Reparation of the Fabrick of the Church is real, charging the Land, and not the Person ; but a Rate for Ornaments is personal, upon the Goods, and not upon the Land.
Q. What is the Consequence of this Distinction ?
A. That the Rate for the Reparation of the Fabrick of a Church shall be laid upon all Lands within the Parish, though the Occupiers inhabit in another Parish : But to the personal Charge Inhabitants alone are liable ; and not those who only occupy in that Parish, and live in another.
Q. Who is to pay where such Lands are in Farm ?
A. Not the Lessor but the Tenant.
Q. Is an Impropriator of a Rectory or Parsonage, who is bound to repair the Chancel, bound also to contribute to the Reparations of the Church ?
A. Yes, in Case he hath Lands in the Parish.
Q. Are the Inhabitants of a Precinct where is a Chapel, contributary to the Repairs of the Mother-Church ?
A. Yes, tho’ it is a Parochial Chapel, and tho’ they do repair it, they are of common Right contributary to the Repairs of the Mother-Church, unless they can plead a Discharge by Prescription Time out of Mind, or by Composition.
Q. What if a Church be so much out of Repair, that it is necessary to pull it down, or so little that it needs to be enlarg’d ?
A. The major Part of the Parishioners ( having first obtain’d the Consent of the Ordinary to do what is needful, and meeting upon due Notice ) may make a Rate for new-building, or enlarging, as there shall be Occasion.
Q. The Hall of a Company being rated to the Repairs of a Church, against whom may the Spiritual Court proceed in Case of Non-payment ?
A. Against the Master and Wardens of such Company.
Q. Whose is the Soil and Freehold of the Church ?
A. Of common Right the Parson’s. The Use of the Body of the Church, and the Repair of it, common to the Parishioners.
Q. Who hath the Right of disposing of the Seats therein ?
A. The Ordinary ; unless in some particular Cases of Prescription and Custom.
Q. What are those Cases ?
A. An Isle in a Church which hath Time out of Mind belong’d to a particular House, and been maintain’d and repair’d by the Owner of that House, is Part of his Frank-tenement, and the Ordinary cannot dispose of it, or intermeddle in it. A Seat also in the Nave or Body of the Church may be prescrib’d for, as belonging to a House but then the Person pleading such Prescription, and praying Prohibition thereupon, must of Necessity alledge the Reparation of it by himself, because if the Parish have repair’d, the Ordinary’s Right stands good, notwithstanding Possession and Use Time out of Mind.
Q. What Custom of disposing of Seats stands good against the Right of the Ordinary ?
A. A Custom, Time out of Mind, of disposing of Seats by Churchwardens, and major Part of the Parish, or by twelve, or any particular Number of the Parishioners, has been held a good Custom ; and where the Ordinary interposed, Prohibition has been granted.
Q. May Priority in a Seat be prescrib’d for ?
A. Yes, as well as the Seat itself.
Q. Can a Seat be granted by the Ordinary to a Person and his Heirs absolutely ?
A. No : For the Seat doth not belong to the Person, but to the Inhabitant ; and for the same Reason, a Seat cannot be claim’d by Prescription, as appendant to Land, but to a House : And yet it hath been held, that a Seat in in an Isle may be prescrib’d for by an Inhabitant of another Parish.
Q. Who is bound to repair the Chancel ?
A. The Parson, by the Custom of England : Yet so that if the Custom hath been for the Parish, or the Estate of a particular Person, to repair the Chancel, that Custom shall be good.
Q. Whom do you mean here by the Parson ?
A. Both the Recor or Spiritual Parson, and also the Impropriator.
Q. In what Manner may Impropriators be compell’d to repair Chancels ? By Spiritual Censures only, or, as Incumbents, by Sequestrations ?
A. It hath been held, that since Impropriations are now become Lay Fees, the Lay Impropriator was not to be sequester’d : Tho’ there seems to be good Arguments why he should, since Impropriations, before they became Lay Fees, were undoubtedly liable to Sequestration ; since the King was to enjoy them in the same manner as the Religious had done, and nothing was convey’d but what the Religious enjoy’d, i.e. the Profits over and above the finding of Divine Service, and the repairing of the Chancel, and other Ecclesiastical Burdens ; and since the General Saving ( 31 Hen. VIII. c. 13. ) of all Rights which any Person had before, may well be extended to a Saving of the Right of the Ordinary in this Particular ; which Right he undoubtedly had by the Law and Practice of the Church nor does it appear to have been abrogated by any Statute whatsoever.
Q. Is repairing of the Chancel a Discharge from contributing to the Repairs of the Church ?
A. Yes ; unless for Lands which are not Parcel of the Parsonage.
Q. Who has the Right of Disposition of the Seats of the Chancel ?
A. The Ordinary, in like manner, as of those in the Body of the Church : For the Freehold of the Church is as much in the Parson as the Freehold of the Chancel ; but this hinders not the Authority of the Ordinary in the Church, and therefore not in the Chancel.
Q. Where is the Seat of the Rector Impropriate ?
A. He is intitled, as such, to the chief Seat in the Chancel ; unless another has it by Prescription.
Q. Who are to take Cognizance of the Decays and Want of Reparation of Churches ?
A. Every Dean, Dean and Chapter, Archdeacon and others, which have Authority to hold Ecclesiastical Visitations, are by the 86th Canon oblig’d to survey the Churches of his or their Jurisdiction in Person, or cause the same to be done, once in every three Years. Canon 86.
Q. What are the proper Ornaments and Furniture of Parish Churches ?
A. They are either such as are necessary, and and which the Church-wardens of every Parish are bound to provide at the Charge of the Parishioners ; as, a Font, Communion Vessels and Furniture, Vestments for the Ministration of Divine Service ; all which shall be taken Notice of in their proper Places ; a decent and comely Pulpit, a convenient Seat for the Minister to read Service in, a Chest for Alms with three Keys, a Book of Common Prayer, a large Bible, a Book of Homilies, and a Parchment Book for the Registering of Christenings, Weddings and Burials : Or else such as tho’ not absolutely necessary, yet the Parishioners may be bound to, by an Agreement of the Majority of them met in Vestry, as Bells, Pulpit-Cloth and Cushion, Organs, Conveniencies for Kneeling at Prayers, and Sacraments, &c. and the like. The Church-wardens are to take Care also that the Ten Commandments be set upon the East End of every Church and Chapel, where the People may best see and read the same, and other chosen Sentences, written upon the Walls in Places convenient.
Q. What is the regular Method of Registering ?
A. The Register-Book ought to be kept in a Coffer with three Locks and Keys, whereof the one to remain with the Minister, and the other two with the Churchwardens severally ; so that none of them without the other may take it out. And on every Sunday after, Morning or Evening Prayer, the Minister, in the Presence of the Churchwardens, should make the Entries of the Week before, and to every Page of the said Book, when fill’d with Inscriptions, subscribe their Names. Canon 70.
Q. What further Care is taken for the Preservation of Registers ?
A. The Churchwardens are once a Year, within one Month after Lady-Day, to transmit to the Bishop of the Diocese, or his Chancellor, a true Copy of the Names of all Persons christen’d, married or buried in their Parish, in the Year before, ended at the said Lady-Day, with the Day and Month in which every such Christening, Marriage and Burial was had, subscribed with the Hands of the Minister and Churchwardens, to the End the same may faithfully be preserved in the Registry of the said Bishop : Which Certificate shall be receiv’d without Fee. Ibid.
Q. Is a Register thus preserv’d good Evidence ?
A. Yes : And the Falsifying it is punishable at Common Law : For Instance, one was fined 200l. for forging the Entry of a Marriage.
Q. What if the Minister or Churchwardens be negligent of their Duty in this Respect ?
A. The Bishop or his Chancellor may proceed against them for Contempt.
Q. When the Goods of the Church are taken away, what Remedy is there against him that takes them ?
A. The Churchwardens may have an Action at Common Law ; or they may have Remedy in the Spiritual Court ; which seems the more proper, because at Common Law only Damages will be recover’d, but the Spiritual Court will decree the restoring of the Things themselves.
Q. What if the Goods of the Church be stolen ?
A. It is Sacrilege and Robbery, and the Churchwardens may have an Appeal of Robbery ; and a Libel may be also in the Spiritual Court against the Offender pro Salute animae.
Q. What if a Person in the Night doth break the Church and enter ?
A. ’Tis Burglary ; for the Church is the House of God.
Q. Can the Parishioners have an Action of Account against the Churchwardens for wasting the Goods of the Church ?
A. No : They must make new Churchwrdens, and those may bring an Action of Account against the former.
Q. Are Trees growing in the Church-yard to be reckon’d amongst the Goods of the Church ?
A. Yes ; nor has any one Authority to dispose of them but the Parson, or Vicar, whose Right it is to repair.
Q. Is the Parson at Liberty to dispose of them as he pleases ?
A. No : He is allow’d to cut them down for the Repair of the Chancel, and, if he thinks fit, he may suffer the Parishioners to do it for the Repair of the Church ; but this is left to his own Charity and Discretion.
Q. What if it appear, that the Person whose Right they are, intends to cut them down for other Purposes ?
A. A Prohibition will be granted to hinder Waste ; and if they are acually cut down, ’tis thought an Indictment lies, upon 35 Ed. I. cap. 4. and that the Person may be fined.
Q. How many Sorts of Chapels are there ?
A. Free Chapels, Domestick Chapels, and Chapels under a Mother Church ; of which last, some are merely Chapels of Ease, others Chapels of Ease and Parochial.
Q. What is a Chapel merely of Ease ?
A. That which was not allow’d a Font at its first Institution, and which is only used for the Ease of the Parishioners in Prayers and Preaching, ( Sacraments and Burials being received and performed at the Mother-Church, ) and commonly where the Curate is removable at the Pleasure of the Parochial Minister.
Q. What is a Chapel of Ease Parochial ?
A. A Chapel instituted with Parochial Rights : But even in this Case, there is usually, if not always, a Reservation of repairing to the Mother-Church, on a certain Day or Days, in order to preserve the Subordination.
Q. Can a Chapel prescribe for Tithes against the Mother-Church ?
A. Yes ; it being a usual Composition upon the Erection of a Chapel, to pay a certain Sum of Money to the Parson and his Successor in lieu of Tithes.
Q. How are the Repairs of a Chapel to be made ?
A. By Rates on the Landholders within the Chapelry, in the same Manner as the Repairs of a Church ; and such Rates are also to be enforced by Ecclesiastical Authority.
Q. If a Patron of a Chapel do Present to that Chapel —— ?
A. It shall become a Church, and be Presentative : And so in Donatives, if the true Patron present, and his Clerk is admitted and instituted, it is become Presentable, and never shall be Donative after ; but a Presentation to a Mother-Church cum Capella de N. if it was originally a distinct Parish Church, shall not hinder it from remaining so.
Q. By whom ought a Chapel or no Chapel to be tried ?
A. By the Spiritual Judge : Because a Chapel dependant on a Mother-Church cannot be founded but with Licence of the Ordinary.
Q. What is a Free Chapel ?
A. One that is exempt from all ordinary urisdiction, having been originally of Royal Foundation.
Q. May Free Chapels continue such in Point of Exemption from Ordinary Visitation, tho’ the Head or Members receive Institution from the Ordinary ?
A. Yes, this appears beyond Exception, from an Instance to this Purpose, in the Register.
Q. May the King erect a Free Chapel and exempt it from the Jurisdiction of the Ordinary ?
A. Yes ; and our Law Books add, that he may license any Subject to found such a Chapel, with such Exemption.
Q. What is a Domestick or Private Chapel ?
A. A Place, ( Chapel or Oratory ) belonging to the House of some Nobleman, or great Person, licens’d by the Bishop for the Celebration of Divine Service, in Case of great Distance from the Parish Church, or of great Infirmities.
Q. Does Attendance upon Divine Service in private Chapels excuse the Lords and Masters of the Houses where the said Chapels are, and their Families, from resorting to their Parifi Churches ?
A. Yes, provided they do not obstinately refuse to come to Church, and also that they be present at the Parish Church where they are Resident, or some open common Church, at least four Times, and receive the Communion once, in every Year. 23 Eliz. cap. 1.
Q. What Penalty is there upon Preaching or administering the Holy Communion, unless in Case of Necessity, in private Houses ?
A. Suspension for the first Offence, and Excommunication for the Second. Canon 71.
Q. Where are the Bounds of Parishes, tho’ coming in Question in a Spiritual Matter, to be tried ?
A. In the Temporal Court, but the Bounds of Fills are triable in the Ecclesiastical Court.
Q. If a Question is depending whether a Chapel of Ease, or a Parish Church, where shall it be tried as to its Limits ?
A. In the Temporal Court ; and so it is, if the Point be, whether a Chapel of Ease or a Parochial Chapel.
Q. What would in great measure prevent the Limits of Parishes coming in Question ?
A. The frequent and regular holding of Perambulations.
Q. How come they to be laid aside, and how far are they still retained ?
A. In the Times of Popery they were accompanied with two great Abuses, viz. with Feasting and with Superstition being performed in the Nature of Processions, with Banners, Hand-Bells, Lights, staying at Crosses, &c. And therefore, when Processions were forbidden by the Injunctions of Queen Elizabeth, the useful and innocent Part of Perambulations was retained in these Words : “But yet for retaining of the Perambulation of the Circuits of Parishes, they shall once in the Year, at the Time accustom’d, with the Curate and the substantial Men of the Parish, walk about the Parishes as they were accustomed, and at their Return to the Church, make their Common Prayers. Provided that the Curate in their said common Perambulations, used heretofore in the Days of Rogations, at certain convenient Places, shall admonish the People to give Thanks to God, in the beholding of God’s Benefits, for the Increase and Abundance of his Fruits upon the Face of the Earth, with the Saying of the CIII Psalm, Benedic anima mea, &c. At which Time also the Minister shall inculcate these, or such Sentences, Cursed is he which translateth the Bounds and Dolles of his Neighbour ; or such other Order of Prayers as shall be hereafter appointed.
Q. Who are the proper Officers belonging to Parish Churches and Chapels ?
A. Parish Clerks, Churchwardens and Sidesmen ; to which may be added Overseers of the Poor.
Q. What was the Original of Parish Clerks ?
A. Parish Clerks were heretofore real Clerics ; of whom every Minister had at least one to assist under him, in the Celebration of Divine Offices.
Q. Who has the Choice of the Parish Clerk ?
A. Parish Clerks as well by the Common Law, as by the Laws of the Church were heretofore appointed by the Minister alone, and by Canon 91st, the Right of putting in the Parish Clerk is confirmed to the Parson or Vicar, or Minister of the Place for the Time being, who is to signify his Choice to the Parishioners, the next Sunday following in the Time of Divine Service : But since the making of this Canon, this Right hath often been contested between Incumbents and Parishioners, and Prohibitions prayed, and always obtain’d of the Spiritual Court, for maintaining the Authority of the Canon in Favour of the Incumbent, against the Plea of Custom in Behalf of the Parishioners.
Q. Can the Ordinary Deprive a Clerk for Misbehaviour ?
A. It is said, that they only, who put him in, can displace him ; but the Ordinary may Censure and Excommunicate him.
Q. Who has the Right of admitting him ?
A. After he is chosen and declared by the Minister, he is usually Licensed by the Ordinary, and may sue for his Dues in the Ecclesiastical Court.
Q. What are the Qualifications required in a Parish Clerk ?
A. He shall be of twenty Years of Age at the least, and known to be a Person of honest Conversation, and sufficient for his Reading, Writing, and also for his competent Skill in Singing ( if it may be. ) Canon 91.
Q. What are Church-wardens ?
A. Ancient Officers annually chosen, to look to the Church, Church-yard, and the Things that belong to both, to provide what is necessary for the Performance of Divine Service, and to observe the Behaviour of the Parishioners, concerning such Faults as belong to the Ecclesiastical Jurisdiction.
Q. Whom are they to be chosen by ?
A. By the joint Consent of the Minister and the Parishioners, if it may be ; but if they cannot agree upon such a Choice, then the Minister shall choose one and the Parishioners another. But even this Right, as well as that of nominating the Parish Clerk, in some Places hath been lost by Disuse, and it hath been said, that of common Right every Parish ought to choose their own Church-wardens, which Right is not to be overthrown but by a contrary Custom. Therefore such Incumbents, as are intitled by Custom as well as Canon, to nominate one, are concerned for the Good of themselves and their Succelfors, to seethat Right kept up.
Q. What are Sidesmen ?
A. Officers ( two, three or more, according to the Largeness of the Parish ) chosen by the Minister and Parishioners, if they can agree, otherwise to be appointed by the Ordinary, to be Assistant to the Church-wardens in the Execution of their Office.
Q. When are the Church-wardens and Sidesmen to be chosen ?
A. In Easter Week, and sworn the first Week after, or some following Week, according to the Direction of the Ordinary. Canon 118.
Q. What is the Oath of a Church-warden ?
A. You shall swear truly and faithfully to execute the Office of a Church-warden within your Parish, and according to the best of your Skill and Knowledge present such Things and Persons, as to your Knowledge are presentable by the Laws Ecclesiastical of this Realm. So help you God, and the Contents of this Book.
Q. If any Person elected to be Church-warden, shall refuse to take the Oath according to Law ——?
A. He may be excommunicated for such Refusal.
Q. If the Party elected offer himself, and the Ecclesiastical Judge refuse to tender the Oath to him —?
A. A Mandamus will be granted from the Temporal Court, and an Action upon the Case may be brought against him if he refuses to obey it.
Q. How long is the Office of Church-wardens and Sidesmen reputed to continue ?
A. Till the new Church-wardens that shall succeed be sworn. Canon 118.
Q. When are the Church-wardens to give up their Accounts, and to whom ?
A. At the End of the Year, or within a Month after at the most, upon Notice beforehand, they are to give an Account of their Receipts and Disbursements to the Minister and Parishioners, and deliver what remains in their Hands to the Parishioners, or to the new Church-wardens. Canon 89.
Q. What if the Church-wardens refuse to Account ?
A. They may be presented at the next Visitation ; or the new Officers, or any of the Parish that have Interest, may by Process call them to Account before the Ordinary, and may there make their Exceptions against it ; or the succeeding Church-wardens may sue them by Writ of Account at Common Law.
Q. What if their Receipts fall short of their Disbursements ?
A. The succeeding Church-wardens are bound to pay what is due to them, and account it amongst their Disbursements, to the Parishioners, at the End of the Year.
Q. Can they be called to Account again, after their Account has been allow’d by the Minister and major Part of the Parishioners present ?
A. No, unless some Fraud in their Accounts is afterwards discovered.
Q. Are Church-wardens a Corporation ?
A. Being Wardens of the Goods, Works and Ornaments of the Church, they are by reason of such Trust, so far incorporated by the Law, as to be enabled to sue for the Goods, and to bring an Action of Trespass for them, and also to purchase Goods for the Use of the Parish ; but they are not a Corporation in such Sort as to purchase Lands, or to take by Grant ; except in London, where they are by Custom a Corporation for those Purposes also.
Q. Is the Release of one Church-warden a Bar to the Action of the other ?
A. In no Case ; for what they have is to the Use of the Parish ?
Q. Who are exempted from being Church-wardens ?
A. All Peers, Clergymen, Parliament Men, Servants to the King in Ordinary, Lawyers and Attornies, Physicians, Surgeons and Apothecaries, Teachers or Preachers of Dissenting Congregations, register’d Seamen, though not in actual Service, and every one who has prosecuted a Felon to Conviction.
Q. What if a Dissenter who scruples the Oath be chosen Church-warden ?
A. He may execute the Office by a sufficient Deputy by him to be provided, that shall comply with the Laws in that Behalf.
Q. What is a Select Vestry ?
A. A certain Number of Persons chosen to have the Government of the Parish.
Q. Whence do select Vestries seem to have grown ?
A. From the Practice of choosing a certain Number of Persons yearly, to manage the Concerns of the Parish for that Year ; which by Degrees came to be the Fix’d Method, and the Parishioners lost not only their Right to concur in the publick Management, as oft as they would attend, but also ( in most Places, if not all ) the Right of electing the Managers.
Q. Is such a Custom of the Government of Parishes a good Custom ?
A. It hath been so adjudged, in that the Church-wardens accounting to them was adjudged a good Account.
Q. What is the Substance of the Act 7 Annae, c. 14. for the better Preservation of Parochial Libraries ?
A. They are to be preserved for the Uses, and according to the Rules directed by the Founders : For which every Incumbent shall give good Security, and may bring an Action, in the Name of the Ordinary, against any Person taking away, or detaining any of the Books ; whereupon treble Damages shall be given, with Costs of Suit, to be applied to the Use of the said Library. And the Ordinary shall have Power to visit such Libraries, by Commission, or in Person. Catalogues of the Books shall be taken, and sign’d by the Incumbents, and deliver’d to the Ordinary. Upon the Death or Removal of the Incumbent, the Library shall be shut up, till there shall be a new one ; unless the Place be used for Parish-Business, for which it shall be open’d. Benefations of Books shall be enter’d by the Minister, and additional Rules and Orders made by the Ordinary, but not contrary to the Will of the Donor. No Books shall be alienable in any Case, unless there be Duplicates ; and if any be lost, a Warrant may be granted, for the Search of it, and to restore it, by any Justice of the Peace.
Q. Are there no Exceptions to this Act ?
A. The Library at Rygate in Surrey being constituted in another Manner, is not included in it.
Q. You mention’d Overseers of the Poor amongst the Officers of Churches and Chapels ; Does Provision for the Poor fall properly within a System of Ecclesiastical Law ?
A. No : But being a Parochial Concern, it is not foreign to the Business of an Incumbent, and therefore is here to be taken Notice of ; that whilst tile Determination of such difficult Points and Cases, as may arise upon the Statutes relating to it, is left to their proper Courts, Parochial Ministers may not be unacquainted with that Part which may be sometimes of Use to them ; namely, the plain Tenor and Letter of the Law.
Q. What was the Original of Overseers of the Poor ?
A. Before the Reformation, the Poor were maintain’d by Offerings, and Oblations of pious Men, and by the Religious Houses. The first Statute made for the Relief of the Poor, was 43 Eliz. c. 2 by which publick Officers are created to provide for the Poor of the Parish, who are to be nominated yearly in Easter Week, or within a Month after, by two Justices of the Peace, one Quorum : They must be Householders, and are sometimes two, three, or four, according to the Largeness of the Parish.
Q. What is their proper Business ?
A. They are to take Order from Time to Time, to set the Poor to Work, and to relieve them : To raise by Taxation, a convenient Stock of Flax, Hemp, Wool, or other Ware, to employ them ; and Money for the Lame, Impotent, &c. and for putting out Children Apprentices.
Q. What Method is laid down in this Act for their more effectually doing of this ?
A. They are to meet with the Church-wardens, who, in this Act, are all along join’d with them, every Month in the Church, after Divine Service, on Sunday in the Afternoon, to consider of some good Course to be taken in the Premisses ; and at the End of the Year, within four Days, shall account to the Justices, and deliver the Money remaining to their Successors, upon Pain to forfeit 20s.
Q. How are the Poors Rates to be levied ?
A. They may be levied by Distress ; and in Defect thereof, the Party may be committed to the common Gaol of the County till Payment.
Q. Where is a Person to be relieved who is over-rated ?
A. At the Quarter Sessions.
Q. What if a Parish is not able to relieve its own Poor ?
A. They may be reliev’d by the Justices from other Parishes.
Q. Are not the Relations of the Poor obliged to relieve them ?
A. The Father, Grandfather, Mother, and Grandmother, and the Children, of every poor Person, being of sufficient Ability, shall relieve him according to such Manner and Rate, as by the Justices of Peace, where such sufficient Persons dwell, or the greater Number of them at their General Quarter-Sessions, shall be assessed, upon Pain to forfeit 20 s. per Month.
Q. What if the Parish lies in two Counties or Liberties ?
A. The Justices shall only meddle in their proper Districts, but the Church-wardens and Overseers shall act jointly.
Q. If the Poor refuse to work, being able —?
A. They shall be sent to the House of Correction.
Q. What other Power have the Overseers, besides what you have already mentioned ?
A. They have Power, with the Assent of two Justices, to bind poor Children Apprentices : The Males till the Age of 24 ; and a Woman-Child till the Age of 21, or the Time of her Marriage.
Q. What Poor are the Overseers obliged to relieve ?
A. Such only as have a Settlement in the Parish.
Q. How many Ways may a Settlement * be gained ?
* See Wood’s Institute, pag. 94.A. 1. By Birth. 2. By Continuance of forty Days in a Parish, to be accounted from Publication of Notice in Writing ; which he or they shall deliver to the Churchwardens and Overseers, with Notice of his or their Abode, and the Number of his or her Family : Which shall be read immediately after divine Service, in the Church or Chapel of the Place, the next Lord’s-Day; and shall be register’d by the Churchwardens or Overseers, in a Book kept for the Accounts of the Poor, on Pain of 40s. to the Use of the Party grieved. 3. By executing an annual Office in the Town, and Parish, on his own Account. 4. By paying a Share to the Publick Taxes or Levies, of such Towns, except to the Scavengers, or Repairs of the Highways. 5. If any unmarried Person, not having Child or Children, shall be lawfully hired for a Year, such Service for a Year shall be deemed a good Settlement, without Notice. 6. By being bound an Apprentice, and inhabiting in a Town or Parish, unless with Certificate Persons. 7. By renting a Tenement of ten Pounds a Year. 8. By having a House or Land of their own, tho’ under ten Pounds a Year. ( But see the Table of References ) 9. By wandering and begging in a Parish without being apprehended, where the Place of Birth cannot be discovered. All these Cases gain a legal Settlement ; so that if any poor Person was settled in a Parish by any such Means, and hath not gained a Settlement elsewhere, he is under the Care of the Overseers of the Poor of that Parish, where he last gain’d such a Settlement, if he falls into Poverty, and wants Relief : And where he himself is settled, his Family must follow him.
Q. How may a Person who has not gained a legal Settlement, and is likely to become chargeable, be removed ?
A. By Warrant from any two Justices of Peace, ( one Qu. ) he may be removed to the Parish where he was last legally settled, unless he give Security to discharge the Parish. 13, 14 Car. II. c. 12.
Q. How may a Person gain a Present Settlement, in any Parish where he is not legally settled, till he wants Relief ?
A. If any Person shall come into a Place to inhabit, and deliver a Certificate to the Church-wardens, or Overseers of the Poor of the Place, where he comes, under the Hands and Seals of the Church-wardens and Overseers of any other Place, attested by two Witnesses, thereby owning the Person mention’d in the Certificate to be an Inhabitant legally settled in that Parish or Place, such Certificate, allow’d by two Justices of the Peace, shall give him a present Settlement till he stands in Need of Relief, and then he may be remov’d to the Place from whence such Certificate was brought. 8 & 9 Will. 3. cap. 30.
Q. In what Cases can a Certificate Person gain a legal Settlement ?
A. If he shall, bona fide, take a Lease of a Tenement of Ten Pounds a Year, or be legally placed in, and execute some annual Office in such Parish, 9, 10 Will. c. 11.
Q. Where shall be the Settlement of Persons bound Apprentices, or being hired Servants with Certificate Persons ?
A. Their Settlement shall be in such Parish, as if they had not been bound or hired to such Persons. 12 Ann. cap. 18.
Q. What Regulations are there to be observed, as to the Persons to be relieved ?
A. No poor Persons shall be reliev’d, whose Names are not register’d in the Parish-Book, with the Time when they were first admitted to have Relief, and the Occasion of their Necessity. And no other shall be allowed to receive Collection, but by Authority under the Hand and Seal of the next Justice of the Peace, or by Order of Sessions, except in Cases of pestilential Diseases happening upon them or their Families ; where such Authority is not requisite. And by 8 and 9 W. III. c. 30. poor Persons that receive Relief, shall on the right Shoulder of the upper Garment, wear a large Roman P, with the first Letter of the Name of the Place or Parish where the said Person inhabits ; the poor Person refusing to wear such Badge, to be suspended from his Allowance, and sent to the House of Correction. And if any of the Overseers relieve such Person not wearing such Badge, upon Conviction before a Justice by one Witness, he forfeits for every such Offence twenty Shillings, to be levied by Distress and Sale of Goods, one Moiety to the Informer, the other to the Poor of the Parish.
Q. Where any Wife, Child, or Children, are left by their Husbands, Fathers, or Mothers, upon the Charge of the Parish —— ?
A. The Church-wardens or Overseers, by Warrant from any two Justices of the Peace, may seize so much of the Goods and Chattels, and so much of the annual Profits of the Lands and Tenements of such Husband, &c. as they shall direct ; which Warrant being confirm’d at the next Quarter-Sessions, the Justices may make an Order for the Sale of them, or for receiving the Rents and Profits, as they shall think fit. 5 Geo. I. cap. 8.
Q. Does an Action lie against the Overseers for Monies mis-spent ?
Tit. X.
What are the Solemn Times of Divine Service in the Church of England ?
A. Sundays and Holydays.
Q. How is the due Celebration of there provided for by the Canons ?
A. All manner of Persons within the Church of England shall celebrate and keep the Lord’s Day, commonly call’d Sunday, and other Holy Days, according to God’s holy Will and Pleasure, and the Orders of the Church of England prescrib’d in that Behalf ; that is, in hearing the Word of God read and taught, in private and publick Prayers, and acknowledging their Offences to God, and Amendment of the same ; in reconciling themselves charitably to their Neighbours where Displeasure hath been, in oftentimes receiving the Communion of the Body and Blood of Christ, in visiting of the Poor and Sick, using all godly and sober Conversation. Canon 13.
Q. What Penalties are inflicted by Statute for prophaning the Lord’s Day ?
A. By 1 Car. I. c. 1. there shall be no Assembly of People out of their own Parishes on the Lord’s Day, for any Sports whatsoever, nor any Bull-baiting or Bear-bating, Interludes or Common Plays, or other unlawful Exercises or Pastimes, used by any Persons in their own Parishes, on Pain that every Offender, upon View of a Justice, Confession, or one Witness, shall forfeit 3s. 4d.
By 29 Car. II. c. 7. ( this Statute being more full, and the Conviction more easy ) no Person whatsoever shall exercise any worldly Labour, Business, or Work of their ordinary Calling on the Lord’s Day, ( except Works of Necessity and Charity, and the Dressing of Meat in Familes, and the Selling of Meat in Victualling-Houses ) but shall exercise themselves in Duties of Piety, publickly and privately, on Pain of 5s. Forfeiture, if the Person is fourteen Years old. And no Person shall publickly cry or expose to Sale any Goods whatsoever on this Day, ( except Milk, which may be sold before nine in the Morning, and after four o’Clock in the Afternoon ) on Pain of forfeiting the same.
Also no Drover, Horse-Courser, Waggoner, Butcher, or Higler, shall travel, or come to their Inn, on this Day, on Pain of 20s. upon Conviction, by View of one Justice, Confession, or the Oath of one Witness.
And no Persons shall travel with any Boat or Barge, except upon extraordinary Occasion, with the Allowance of some Justice of the Peace, &c. on Pain of 5s.
Q. In Case of Inability, &c. the Offender shall be set in the Stocks.
If any Person, travelling on the Lord’s Day, is robbed, the Hundred shall not be charged, but they shall pursue the Offender with Hue and Cry.
No Person on the Lord’s Day shall serve any Process, &c. except in Cases of Treason, Felony, or Breach of the Peace. The Service of all such Processes shall be void and the Person serving the same shall answer Damages, as if he had done the same without Warrant ; but by 5 Ann. c. 9. it is lawful to take up Persons that have escap’d out of the King’s Bench and Fleet Prisons, on the Lord’s Day.
And a certain Number of Hackney Coaches are licens’d to ply on Sundays within the Bills of of Mortality, and also of Watermen upon the Thames, at convenient Places.
Q. How is the Observation of Holydays enforced by Statute ?
A. By 1. Eliz. c. 2. all Persons are obliged to resort to their Parish Church on Holydays, as well as Sundays, upon Pain of Punishment, by the Censures of the Church, and Twelve-Pence for every Offence, to be levied by Distress.
Q. How many kinds are there of Holy-days ?
A. They are either Feasts or Fasts.
Q. What are the Feasts to be observ’d in the Church of England through the Year, besides Sundays ?
A. The Days of the Feasts of the Circumcision of our Lord JESUS CHRIST. The Epiphany. The Conversion of St. Paul. The Purification of the Blessed Virgin. St. Matthias the Apostle. The Annunciation of the Blessed Virgin. St. Mark the Evangelist. St. Philip and St. James the Apostles. The Ascension of our Lord JESUS CHRIST. St. Barnabas. Nativity of St. John Baptist, St. Peter the Apostle. St. James the Apostle. St. Bartholomew the Apostle. St. Matthew. St. Michael and all Angels. St. Luke the Evangelist. St. Simon and St. Jude. All Saints. St. Andrew the Apostle. St. Thomas the Apostle. Nativity of our Lord. St. Stephen the Martyr. St. John the Evangelist. The Holy Innocents.
Monday and Tuesday in Easter Week.
Monday and Tuesday in Whitsun Week.
Q. What Vigils or Evens are observed in the Church of England ?
A. The Evens or Days next going before the Days of the Feasts of the Nativity of our Lord, of Easter, of the Ascension of our Lord, Pentecost, and the Purification and the Annunciation of the blessed Virgin, of all Saints, and of all the Feasts of the Apostles, except St. Philip and St. James, as falling between Easter and Whitsunday ; and St. John the Evangelist, as falling between the Nativity and Epiphany. Note ; St. Barnabas and St. Paul are not accounted of the Twelve.
Q. Why are they call’d Vigils ?
A. Quod in eis inon solum jejunandum est, sed Vigiliis & Orationibus pernoctanter insistendum.
Q. What are the Days of Fasting or Abstinence ?
A. I. The Forty Days of Lent.
II. The Ember Days, at the four Seasons, being the Wednesday, Friday, and Saturday after the first Sunday in Lent, the Feast of Pentecost, Sept. 14. and Dec. 13.
III. The three Rogation Days, being the Monday, Tuesday, and Wednesday before Holy Thursday.
IV. All the Fridays in the Year, except Christmas Day.
Q. What is the Meaning of Ember Days ?
A. They are Fasts observ’d by the Church very early, and particularly by the Church of England in the Saxon Times, who call’d them 
, from whence ( and not from Embers, or from the Greek ἡμέραι, as some have conjectured ) our Name of Ember Days is to be derived. The Word 
signifies in Saxon a Circle or Course, and therefore they may not be improperly call’d the Circular Fasts, or Fasts in Course, being observed in the four Seasons on which the Circle of the Year turns, and accordingly call’d by the Canonists, the Jejunia quatuor Temporum, or Fasts of the four Quarters of the Year. ’Tis probable these Fasts were first instituted to beg God’s Blessing on the Fruits of the Earth, and on ourselves in the Use of them, and not only on Account of Ordination.
Q. What are Rogation Days ?
A. Days so call’d from the extraordinary Prayers and Supplications, which, with Fasting, were at this Time offer’d to God by devout Christians.
Q. When and upon what Account was the Observation of there Days establish’d in the Church ?
A. The Use of earnest Supplications for the Mercy of God, which were called Litanies, was very early practised in the Christian Church ; but this Season before our Lord’s Ascension, for Litanies and Rogations, was fixed by Mamertus Bishop of Vienne, about the Middle of the fifth Century, upon the Prospect of some particular Calamities that threatned his Diocese, and afterwards grew into a Custom, in all the French, German, and British Churches.
Q. Is there any particular Service appointed for the Rogation Days ?
A. No ; but there are four Homilies, specially provided to be read with the ordinary Service, on the three Days before, and on the fourth, namely Ascension, or the Day of Perambulation ; and in the Injuncions of Queen Elizabeth, where Processions are forbidden, and a Reservation made for Perambulations, it is provided, that the Curate in the said common Perambulation ( used heretofore in the Days of Rogations, at certain convenient Places ) shall admonish to the People to give Thanks to God in the beholding of God’s Benefits, for the Increase and Abundance of his Fruits upon the Face of the Earth.
Q. What Obligation is there by Statute to observe the Days of Fasting or Abstinence ?
A. By 2, 3 Ed. VI. c. 19. none is allow’d to eat Flesh upon any Friday or Saturday, or Ember Days, or in Lent, or any other Fish-day, upon Pain of forfeiting 10s. and ten Days Imprisonment, for the first Offence ; and for the second, 20s. and twenty Days Imprisonment ; and so toties quoties ; except Persons licensed by the King, Aged, Sick, Women with Child, or lying-in, Prisoners, Officers and Soldiers ; and this, as the Act sets forth, partly upon a Religious Account, considering that due and godly Abstinence is a Means to Virtue, and to subdue Mens Bodies to their Souls and Spirits ; and partly upon a civil Account, for the Encouragement of the Fishery, and the Preservation of Flesh.
Q. If any of the Feast-days fall upon a Monday, when shall the Virgil or Fast be kept ?
A. On the Saturday next before it.
Q. Are there not some other Days, besides the stated Feasts and Fasts of the Church, prescrib’d to be observ’d by Act of Parliament ?
A. Yes ; the 5th of November, as a Day of Thanksgiving for the Discovery of the Gunpowder Treason ; the 29th of May, as an Anniversary Thanksgiving for the Restoration of the Royal Family, and the Church ; and the 30th of January, as a Day of publick Humiliation for the Murder of King Charles I. which if it fall on a Sunday, is to be observ’d the Day following. To these may be added a fourth, ( tho’ not enjoin’d by Act of Parliament ) viz. the Inauguration Day, or the Day when the King or Queen for the Time being began their respective Reigns.
Q. By what Authority is that Day observ’d ?
A. The Observation of it, as to K. Charles I. was inforc’d by a particular Canon in the Year 1640, after the Example, as well “of the godly Christian Emperors, in the former Times, as of our own most religious Princes, since the Reformation;” as it is in the Preface to that Canon ; which says farther, That a particular Form of Prayer was appointed by Authority for that Day, and Purpose, and injoins all Church-wardens to provide two of those Books at least. This Festival was disus’d in the Reign of King Charles II. upon Occasion of the Murder of his Royal Father, “which chang’d the Day into a Day of Sorrow and Fasting,” as is set forth in the Order for Reviving that Usage in the first Year of K. James II. before the Service composed for that Purpose : Which Service, after another Disuse of that Festival, during the Reign of K. William, was revised, and the Observation of the Day commanded, by a special Order thereunto annex’d, in the second Year of Queen Anne, and has since been continued to the Reign of our present gracious Sovereign King George II.
Q. May Ministers appoint publick or private Fasts without Authority ?
A. No Minister or Ministers shall, without the Licence or Direction of the Bishop of the Diocese first obtain’d and had under his Hand and Seal, appoint or keep any solemn Fasts, either publickly or in private Houses, other than such as by Law are, or by Publick Authority shall be appointed, nor shall be wittingly present at any of them, under Pain of Suspension for the first Fault, of Excommunication for the second, and of Deposition from the Ministry for the third. Canon 72.
Q. What Notice is the Minister obliged to give the People of Holy-days or Fasting-days ?
A. He is on the Sunday before, after the reading of the Nicene Creed, to declare unto People what Days are to be observed as such in the Week following ; and if he wittingly omit, and being admonished by his Ordinary, offend again, he shall be censured according to Law. Canon 64.
Tit. XI.
Where, and by what Authority is the Method of publick Worship in the Church of England prescribed ?
A. In the Book of Common Prayer, &c. establish’d by Act of Parliament 13, 14 Car. II. c. 4. commonly called the Act of Uniformity, in which it is enacted, That all and singular Ministers in any Cathedral, Collegiate, or Parish Church or Chapel, or other Place of publick Worship, within this Realm of England, Dominion of Wales, and Town of Berwick upon Tweed, shall be bound to say and use the Morning-prayer, Evening-prayer, Celebration and Administration of both the Sacraments, and all other the Publick and Common Prayer, in such Order and Form as is mentioned in the said Book, and at the Times therein appointed.
Q. What other Acts are there for Uniformity in publick Worship ?
A. An Act 2, 3 Ed. VI. c. 1. for Uniformity of Service and Administration of the Sacraments. Another 5, 6 Ed. VI. c. 1. adding to the Book of Common-Prayer, established by the former Act, after it had been perused and perfected, a Form of making and consecrating of Archbishops, Bishops, Priests and Deacons which Act being repeal’d by Queen Mary, King Edward’s Book was restor’d with certain Additions and Alterations, by an Act 1 Eliz. c. 2. All which Laws, together with the Penalties enforcing them, for establishing Common Prayer, are by the Act of Uniformity, 13, 14 Car. II. to be in Force, and applied to the present Form ; and the thirty-sixth Article, concerning Consecration and Ordination, shall be applied to the present Book.
Q. Are Dissenters liable to those Penalties ?
A. No : They are exempted, by an Act I Will. and Mar. cap. 18. which see, under Title XXV.
Q. What Censure does the Canon inflict upon Impugners of the Common Prayer ?
A. To affirm that the Form of God’s Worship in the Church of England, established by Law, and contain’d in the Book of Common Prayer and Administration of the Sacraments, is a corrupt, superstitious, or unlawful Worship of God, or containeth anything in it that is repugnant to the Scriptures, shall be Excommunication ipso facto. Canon 4.
Q. If any Doubt arise in the Use and Practice of the Book of Common Prayer, who shall resolve it ?
A. The Bishop of the Diocese, who by his Discretion shall take Order for the quieting and appeasing the same, so that the same Order be not contrary to any thing contained in the said Book ; and if the Bishop of the Diocese be in doubt, then he may send for Resolution thereof to the Archbishop. Preface to the Book of Common Prayer.
Q. What Penalties does the Statute inflict upon Impugners of the Common Prayer ?
A. By 1 Eliz. c. 2. Any Minister refusing to use the Book of Common Prayer, or wilfully and obstinately using any other, or preaching or speaking in Derogation of it, shall, for his first Offence, lose one Year’s Profit of all his spiritual Promotions ; for the second, shall be imprisoned a whole Year, and deprived ; and for the third, shall be deprived, and suffer Imprisonment during Life. Offenders not having spiritual Promotions, shall suffer, for the first Offence, one Year’s Imprisonment ; for the second, Imprisonment during Life. Also any Person or Persons, who shall in any Interludes, Plays, Songs, Rhymes, or by other open Words, declare or speak any thing in Derogation, despising, or depraving of the said Book, or of any thing therein contain’d, or any Part thereof ; or shall by open Fact, Deed, or by open Threatnings, compel, or cause, or otherwise procure, or maintain any Minister to use any other Form, or shall interrupt the Use of this ; shall forfeit for the first Offence One hundred Marks, for the second Four hundred Marks, for the third Goods and Chattels, with Imprisonment during Life : And in Default of Payment, for the first Offence, suffer six Months Imprisonment ; for the second, twelve Months.
Q. Has the Church Power to decree Rites and Ceremonies ?
A. Yes, provided they be not contrary to God’s Word written, Art. XX. And whoever, thro’ his private Judgment, willingly and purposely doth openly break the Traditions and Ceremonies of the Church, which be not Repugnant to the Word of God, and be ordain’d and approv’d by common Authority, ought to be rebuked openly, that others may fear to do the like, as he that offendeth against the Common Order of the Church, and hurteth the Authority of the Magistrate, and woundeth the Consciences of the weak Brethren. Canon 34.
Q. What Censure does the Canon inflict upon Impugners of the Rites and Ceremonies established in the Church of England ?
A. To affirm them to be Wicked, Antichristian, and Superstitious ; or such as being commanded by lawful Authority, Men who are zealously and godly affected, may not with any good Conscience approve them, use them, or, as Occasion requireth, subscribe unto them, shall be Excommunication ipso facto. Canon 6.
Q. How are Ministers, omitting the Use of the Common-Prayer and Ceremonies, after Subscription, to be punished ?
A. By Suspension : And, if no Submission is made within a Month after, by Excommunication ; and, after another Month, by Deposition from the Ministry. Canon 38.
Q. Are Appeals allowed where an Ecclesiastical Judge hath proceeded judicially against obstinate and factious Persons, and Contemners of Ceremonies, for not observing the Rites and Orders of the Church of England, or for Contempt of publick Prayer ?
A. No : Unless the Appellant do first personally promise and avow, before the Judge ad quem, that he will faithfully keep and observe them. Canon 98.
Q. What Provision is there by Act of Uniformity 13, 14 Car. II. c.4. for Common Prayer, in such Places of Wales where the Welch Tongue is commonly used ?
A. The Bishops of Hereford, St. David’s, Asaph, Bangor, and Landaff, and their Successors, shall take Care that the Book be translated into Welch, and provided in every such Church, and used there ; and also that an English Common Prayer be provided in every such Church, for the speedier Attainment of the English Tongue, by conferring both together. 5 Eliz. c. 28.
Tit. XII.
How is Attendance upon Divine Service enforced by Canon ?
A. The Church-Wardens, and Sidesmen, or Assistants, shall diligently see that all the Parishioners duly resort to Church upon all Sunday and Holy-days, and there continue the whole Time of Divine Service : And such as shall neglect, without great and urgent Cause of Absence, they shall admonish ; and if after Admonition they amend not, they shall present them to the Ordinary of the Place. Canon 90.
Q. What Penalty does the Satute inflict upon such as neglect to resort to Church ?
A. By 1 Eliz. c. 3. Forfeiture of twelve Pence for every Offence, to be levied by the Churchwardens, by Distress and Sale of Goods, for the Use of the Poor of the Parish, where such Offence shall be done ; and by 23 Eliz. c. 1. every Person, above the Age of sixteen Years, which shall not repair to some Church, Chapel, or usual Place of Common Prayer, not having lawful Excuse or Impediment, and is thereof lawfully convicted, shall forfeit for every Month twenty Pounds.
Q. Is it necessary that every one resort to his own Parish Church ?
A. By the Common Law or Practice of the Church of England, no Person can be duly discharged from attending his own Parish Church, or warranted in resorting to another, unless he be first duly licensed by his Ordinary ; who is the proper Judge of the Reasonableness of his Request, and grants him Letters of Licence under his Seal, to be exhibited, as there shall be Occasion, in Proof of his Discharge.
Q. What are the Rules of Common Law concerning Church-ways ?
A. I. The Right to a Church-way may be claimed and maintained by a Libel in the Spiritual Court.
2. A Church-way may commonly be claim’d as a Private Way.
3. Prescription for a Church-way may be pleaded by any Inhabitant, in the Spiritual-Court.
Q. What Directions does the Canon lay down for orderly Behaviour in the Church ?
A. No Man shall sit covered in the Time of divine Service, except in case of Infirmity. All manner of Persons shall reverently kneel upon their Knees, when the general Confession, Litany, and other Prayers are read ; and stand up at the Belief, and bow at the Name of JESUS ; And attend quietly, and make their proper Responces, and join audibly with the Minister in the Confession, Lord’s-Prayer and Creed. None shall walk, or talk, or depart out of the Church, without urgent and reasonable Cause ; nor loiter in the Church-Yard, or Porch, or hinder the Minister or Preacher by rude and disorderly Behaviour, untimely ringing of Bells, or other Noise. Canon 18, 19. These Offences are to be presented, by the III Canon.
Q. What Penalty does the Statute inflict upon Persons disturbing Divine Service ?
A. Any Person, who shall willingly and of Purpose, maliciously and contemptuouly, come into any Cathedral or Parish Church, Chapel, or tolerated Congregation, and disquiet and disturb the same, or misuse any Preacher, or Teacher, upon Proof thereof, before any Justice of Peace, by two or more sufficient Witnesses, shall find two Sureties, to be bound by Recognizance in the penal Sum of fifty Pounds ; and in Default of such Sureties, shall be committed to Prison, there to remain till the next General or Quarter Sessions : And upon Conviction of the said Offence, at the said General or Quarter Sessions, shall suffer the Penalty of 20l. to the Use of the King and Queen’s Majesties, their Heirs, or Successors, 1 Wil. & Mar. c. 18.
Tit. XIII.
What Habit is the officiating Minister obliged to wear ?
A. Every Minister saying the publick Prayers, or ministring the Sacraments, or other Rights of the Church, shall wear a decent and comely Surplice, with Sleeves, to be provided at the Charge of the Parish ; and such as are Graduates, Hoods suitable to their Degrees, which no Minister shall wear ( being no Graduate ) under Pain of Suspension : Canon 58. And by the Rubrick, such Ornaments of the Church, and of the Ministers thereof, at all Times of their Ministration, shall be retained, and be in Use as were in this Churcl of England, by the Authority of Parliament, in the second Year of King Edward VI. which should seem to be understood, according to the Alterations made in the second Book 5, 6 Ed. VI. For the first Service Book enjoins, besides Surplices and Hoods, at the Communion, Albs and Tunicles, and to the Bishop a Pastoral Staff.
Q. In what Place of the Church is the Service to be perform’d ?
A. In such Place as has been accustom’d, except it shall be otherwise directed by the Ordinary.
Q. How and at what Times is the Service to be performed ?
A. By Canon 14. The Common Prayer shall be said or sung distinctly and reverendly, upon such Days as are appointed to be kept Holy by the Book of Common Prayer, and their Eves, and at convenient and usual Times of those Days. And by the Rubrick, the Curate that ministereth in every Parish Church or Chapel being at Home, and not being otherwise reasonably hindered, shall daily say the Morning and Evening-Prayer, in the Parish Church or Chapel where he ministereth.
Q. Is the Minister obliged to proclaim or publish any thing in the Church, during the Time of divine Service, other than what is prescribed in the Rules of the Common Prayer-Book ?
A. No ; unless enjoined by the King, or the Ordinary of the Place. Rubrick.
Q. What Acts of Parliament and Canons is he obliged to read, and when ?
Tit. XIV.
What Penalty is there upon any Person disturbing a Minister in Preaching ?
A. Besides the Forfeiture of 20l. by 1 Will. & Mar. c. 18. the Statute 1 Mar. ( Sess. 2. ) c. 3. is still in Force, which makes it Imprisonment.
Q. Is it necessary to have a Licence for Preaching ?
A. No Deacon shall preach, unless licensed by the Bishop ; nor a Priest, except in the Congregation where he shall be lawfully appointed thereto.
Q. What Subscription is required of Preachers ?
A. None shall preach or read Lectures, or catechise, till he hath subscribed, before his Diocesan, to the three Articles in the 36th Canon, see Canon 37.
Q. What Penalty is there upon taking Reward for procuring a Licence to preach ?
A. Forfeiture of forty Pounds, 31 Eliz. cap. 6.
Q. What Preaching is required of every beneficed Preacher ?
A. He is to preach every Sunday at his own Cure, or one near it, if he resides ; if not, he shall supply by licensed Preachers, if the Benefice will bear it : But every Pluralist shall maintain a licensed Preacher in the Benefice where he doth not usually reside. Canon 45. &c.
Q. What Restraint does the Canon lay upon strange Preachers ?
A. No Stranger shall be suffered to preach, without shewing his Licence : And the Church-wardens shall take care, that the Names of all Preachers which come to their Church from any other Place, shall be noted in a Book for that Purpose ; wherein every Preacher shall subscribe his Name, the Day wherein he preached, and the Name of the Bishop who licensed him. Canon 51, &c.
Q. What Care is taken to prevent Publick Opposition between Preachers ?
A. No Preacher shall in the Pulpit, particularly or namely of purpose, impugn, or confute any Doctrine delivered by any other Preacher in the same Church, or any Church near adjoining, before he hath acquainted the Bishop of the Diocese therewith, and received Orders what to do in that Case : And if any do, the Churchwardens, or Party grieved, shall forthwith signify the same to the said Bishop ; and not suffer the said Preacher any more to occupy the Place which he hath once abused, except he faithfully promise to forbear all such Matter of Contention in the Church, until the Bishop hath taken further Order therein. Canon 53.
Q. What if false Doctrine be preached in any Cathedral— ? See Appendix.
A. It shall be notified to the Bishop by the Dean or Residents, by Letters subscribed with some of their Hands who heard it. Canon 51.
Q. If a licensed Preacher refuse to conform to the Church of England —?
A. He shall be admonished by the Bishop or Ordinary ; if after Admonition he does not conform within a Month, his Licence shall be void. Canon 54.
Q. What must they do, who are not licensed Preachers, for the Instruction and Edification of the People ?
A. They shall read plainly, and aptly, without glossing or adding, the Homilies already set forth, or hereafter to be published by lawful Authority. Canon 49.
Q. What Privilege have licensed Preachers by the Statute ?
A. None shall be admitted to any Benefice with Cure of Souls, of or above the Value of 30l. yearly in the King’s Books, unless he shall be a licensed Preacher, or Batchelor of Divinity. 13 Eliz. cap. 12.
Q. Have only the Archbishops and Bishops Authority to license Preachers ?
A. Yes, the two Universities of Cambridge and Oxford.
Q. What is required of Lecturers by the Act of Uniformity ?
A. Every Leturer shall be licensed under the Seal of the Archbishop or Bishop, and read the XXXIX Articles in his Presence, and declare his unfeigned Assent to the same : Every Lecturer shall also, the first Time he preacheth at his Lecture, read the Common-Prayer, and declare his Assent thereto, and continue to do the same Monthly, upon Pain of being disabled till he shall conform ; and, if he preach while he is disabled, shall suffer three Months Imprisonment.
Q. Is it necessary that a Lecturer in a Cathedral should read the Common Prayer ?
A. No, it is sufficient to declare his Assent and Consent.
Q. Are Lecturers bound by Canon to read the Common Prayer ?
A. Every stipendiary Preacher that readeth any Lecture, or catechiseth, or preacheth in any Church or Chapel, shall twice, at the least every Year, read himself the Divine Service, upon two several Sundays, publickly, and at the usual Times, both in the Forenoon and Afternoon, in the Church where he readeth, catechizeth, or preacheth ; and shall likewise as often in every Year administer the Sacraments of Baptism ( if there be any to be baptized ) and of the Lord’s-Supper, in such Manner and Form, and with the Observation of all such Rites and Ceremonies, as are prescribed by the Book of Common-Prayer in that Behalf, upon Pain of Removal from his Place, by the Bishop of the Diocese, till he shall submit. The same is required of beneficed Preachers, upon Pain of Suspension. Canon 56.
Tit. XV.
What only is to be believed as an Article of Faith, or as necessary to Salvation ?
A. Nothing but what is read in holy Scripture, or may be proved thereby. Article 6.
Q. What Creeds does the Church of England receive and believe ?
A. The three Creeds, Nice Creed, Athanasius’s Creed, and that which is commonly called the Apostles Creed ; affirming that they ought thoroughly to be received and believed, for that they may be proved by most certain Warrants of holy Scripture. 39 Art. 8.
Q. Wherein is the true Doctrine of the Church of England contain’d ?
A. In the Articles commonly called the XXXIX Articles, which were mainly founded upon a Body of Articles compiled and published in the Reign of King Edward VI. and were not only passed in Convocation, and confirmed by Royal Authority, in the Year 1562, but were also ratified anew by Queen Elizabeth, and afterwards by King James I.
Q. What Penalty does the Statute inflict upon the Impugners of the XXXIX Articles ?
A. To preach any thing contrary to the Doctrine of them, and to persist in it, or after Recantation to maintain or affirm the like again, shall be Deprivation, 13 Eliz. c. 2.
Q. What Censure does the Canon inflict for the same Offence ?
A. Excommunication ipso facto, upon any that shall affirm, that they are in any Part superstitious or erroneous, or such as he may not with a good Conscience subscribe unto.
Tit. XVI.
What has been allowed by the Statute Law to be Heresy since the Reformation ?
A. In the Times of Popery every thing was adjudged Heresy that the Church of Rome thought fit to call by that Name, how far soever in its own Nature from being fundamental, and how contrary soever to the Gospel and the ancient Doctrine of the Catholick Church. But in the Act 1 Eliz. c. 1. intitled, An Act to restore to the Crown the ancient Jurisdiction over the Estate Ecclesiastical, &c. the Power which the Ecclesiastical Commissioners had thereby given them to correct Heresy, &c. was with this Limitation, That they should have no Authority or Power to adjudge any Matter or Cause to be Heresy, but only such as heretofore have been determined, ordered, or adjudged to be Heresy by the Authority of the Canonical Scriptures ; or by the first four General Councils, or any of them, or by any other General Council, wherein the same was declared Heresy by the express and plain Words of the said Canonical Scriptures : or such as hereafter shall be ordered, judged, or determined to be Heresy by the High Court of Parliament, with the Assent of the Clergy in their Convocation.
Q. Is this still in Force ?
A. This Act, so far as it concerneth the High Commission Court, being repealed by 16 Car. I. it follows, that this Branch, which extended only to that Court, is also repealed : But ( saith my Lord Coke, while that Commission stood ) albeit this Proviso extendeth only to the High Commissioners ; yet, seeing in the High Commission there be so many Bishops, and other Divines, and learned Men, it may serve for a good Direction to others, especially to the Diocesan, being a sole Judge in so weighty a Cause.
Q. What was the ancient Punishment of Heresy ?
A. By Stat. 2 Hen. IV. c. 5. Hereticks, upon Conviction before the Ordinary, were deliver’d to the secular Arm and burnt ; but by 29 Car. II. c. 9. it was enacted, That the Writ de Haeretico comburendo, with all Process and Proceedings thereupon, and all Punishment by Death, in Pursuance of any Ecclesiastical Censures, should be from thenceforth utterly taken away and abolish’d.
Q. Does this Act extend to abridge, or take away the Jurisdiction of Protestant Archbishops or Bishops, or any other Judges of any Ecclesiastical Courts, in Cases of Atheism, Blasphemy, Heresy, or Schism, and other damnable Doctrines and Opinions ?
A. No, there is a special Proviso in it, that they may proceed to punish the same, according to his Majesty’s Ecclesiastical Laws, by Excommunication, Deprivation, Degradation, and other Ecclesiastical Censures not extending to Death, in such Sort, and no other, as they might have done before : So that upon abrogating of the ancient Statutes made against Hereticks, the Cognizance of Heresy, and the Punishment of Hereticks, return’d into its ancient Channel and Bounds, and now belongs to the Archbishop, as Metropolitan of the Province, and to every Bishop within his own proper Diocese, who are to punish only by Ecclesiastical Censures.
But as no Person can be indicted or impeach’d for Heresy before any temporal Judge, or other that hath temporal Jurisdiction ; so, if a Heretick be convicted of Heresy, and recant it, he may not ( as has been resolv’d ) be punish’d by the Ecclesiastical Law.
Q. Has not the Convocation a Power to convict and punish Hereticks ?
A. The Convocation had once an undoubted Right to convict and punish Hereticks in a synodical Manner : How far it doth still retain, or not retain that Authority, has of late been Matter of Dispute, and hath not yet receiv’d a Judicial Determination.
Q. Is there no Civil Penalty inflicted by the Statute upon some particular Heresies ?
Tit. XVII.
How many Sacraments does the Church of England acknowledge ?
A. Two only, as generally necessary to Salvation, Baptism, and the Lord’s Supper ; rejecting the other five which the Romanists hold ; that is to say, ‡ Confirmation, Penance, Orders, Matrimony, and extreme Unction, as having no visible Sign ordained of God. See Article 25.
‡ For Confirmation see Tit. xix below. For Penance see Tit. xlvi, and Tit. xlvi below. For Orders, see Tit. iv above. For Matrimony, see Tit. xxii below. For extreme Unction, see Tit. xxi below.Q. What is the Nature of the Sacraments ?
A. “They be not only Badges or Tokens of Christian Men’s Profession, but rather they be certain sure Witnesses and effectual Signs of Grace. and God’s good Will towards us, by the which he doth work invisibly in us, and doth not only quicken, but also strengthen and confirm our Faith in him.” Article 25.
Q. Have they this wholsome Effect and Operation in all that receive them ?
A. In such only as worthily receive them ; but they that receive them unworthily, receive to themselves Damnation, as St. Paul saith. Ibid.
Q. Does the Unworthiness of the Ministers hinder the Effects of the Sacraments ?
A. No ; forasmuch as they do not minister the same in their own Name, but in Christ’s, and by his Commission and Authority. Article 26.
Q. Are the Sacraments to be refused at the Hands of unpreaching Ministers ?
A. No ; upon Pain of Suspension and Excommunication. Canon 57.
Q. May the Sacraments be sold for Money ?
A. Priests demanding Money for Sacraments, by a Constitution of Otho, shall be depriv’d of Benefice, and suspended from Office.
Tit. XVIII.
What does the Church of England hold concerning Baptism ?
A. That it is “not only a Sign of Profession, but of Regeneration or new Birth, whereby, as by an Instrument, they that receive Baptism rightly, are grafted into the Church, the Promises of Forgiveness of Sins, and of our Adoption to be the Sons of God by the Holy Ghost, are visibly sign’d and seal’d, Faith is confirmed, and Grace increased by Virtue of Prayer to God.” Article 27.
Q. Is the Baptism of young Children to be retained in the Church ?
A. Yes, as most agreeable with the Institution of Christ. Ibid.
Q. Are Ministers bound to baptize Children that are brought to them to Church ?
A. Yes, upon Pain of Suspension for three Months. Canon 68.
Q. What Notice ought the Minister to have beforehand ?
A. Convenient Notice either over Night, or in the Morning, before Morning-Prayer.
Q. When is the proper Time of Baptizing ?
A. On Sundays, or Holy-days, after the last Lesson, at Morning or Evening Prayer, as the Curate at his Discretion shall appoint.
Q. How is Baptism to be perform’d ?
A. In such Manner and Form as is prescribed in the Book of Common-Prayer.
Q. Can a Parent be admitted as a Godfather for his own Child ?
A. No : Nor shall any Person be admitted as a Godfather or Godmother to any Child at Christening or Confirmation, before the said Person so undertaking hath received the Holy Communion. Canon 29.
Q. Can the Name of a child be chang’d after Baptism ?
A. By a Constitution of Archbishop Peckham, wanton Names being given in Baptism, especially to Children of the Female Sex, shall be chang’d by the Bishop at Confirmation, for others more decent ; which Name so chang’d, shall be reputed the legal Name.
Q. What Ceremonies does the Church retain in Baptism ?
A. The Church still retains the Sign of the Cross, and explains the lawful Use of it in Baptism, in the 30th Canon ; but the Popish Remains of Leading into the Church, Exorcising, Crisom, and Anointing, 2 Edw. VI. are laid aside.
Q. Does the Church allow of private Baptism ?
A. In Case of Weakness, or Danger of Death of any Infant.
Q. By whom is private Baptism to be administer’d ?
A. There was some Ambiguity in the Rubrick of Ed. VI’s Book, concerning the Persons by whom private Baptism might be Administer’d ; but that has been since, and stands now, sufficiently clear’d by the present Rubrick, which confines it to the Minister of the Parish, or, in his Absence, to any other lawful Minister that can be procured.
Q. What if the Child die unbaptiz’d thro’ the Minister’s Neglect ?
A. He shall be suspended for three Months ; and before his Restitution, shall acknowledge his Fault, and promise before his Ordinary, that he will not willingly incur the like again. Canon 69.
Q. Upon what Account was the Office for the Baptism of such as are of riper Years added to the Common-Prayer ?
A. Because it was become necessary by the Growth of Anabaptism, and might be useful for the baptizing of Natives in our Plantations. Preface to the Common-Prayer.
Q. Does a Slave by Baptism acquire Manumission ?
A. That hath been a Point debated in the Court of King’s-Bench, but not directly determined ; but it was said, that if Baptism should be accounted Manumission, it would very much endanger the Trade of the Plantations, which cannot be carried on without the Help and Labour of these Slaves ; for the Ministers are bound to baptize them, as soon as they can give a reasonable Account of the Christian Faith ; and, if that would make them free, then few would be Slaves. At the same Time, it seemed to be taken for granted, that if the Slave had been baptized with the Master’s Consent, Manumission would have followed ; which may be gather’d from the Manner of stating the Question, Whether Baptism, without thS Privity of the Lord, will amount to a Manumission ?
Tit. XIX.
What is the Minister’s Duty with regard to Catechising ?
A. Every Minister is, by the 59th Canon, to catechise every Sunday and Holy-day, before Evening-Prayer ; but by the Rubrick, after the second Lesson at Evening-Prayer, so many of the Children of his Parish sent unto him, as he shall think convenient.
Q. What Punishment is there for the Neglect of Catechising ?
A. All Fathers and Mothers, Masters and Mistresses, shall cause their Children, Servants and Apprentices, which have not learned the Catechism, to come to Church at the Time appointed, obediently to hear and to be order’d by the Minister, till they have learned the same. If any of them shall neglect their Duty herein, as the one Sort, in causing them to come, and the other in refusing to learn, let them be suspended by their Ordinaries, if they be not Children, and if they so persist by the Space of a Month, excommunicated. Canon 59.
Q. What if the Minister neglect his Duty herein ?
A. Let him be sharply reproved upon the first Complaint, for the second Offence suspended, for the third excommunicated, till he will reform. Ibid.
Q. How often are Bishops bound to hold Confirmations ?
A. Every three Years at their Visitations, or the next Year after, in Case of personal Inability. Canon 60.
Q. What is required of those who come to be confirmed ?
A. That they be at least able to render an Account of their Faith, according to the Church Catechism.
Q. Is Confirmation necessary before Communion ?
A. None shall be admitted to the Holy Communion, until such Time as he be confirmed, or be ready and desirous to be confirmed. Rubrick.
Q. May Confirmation be repeated ?
A. No.
Tit. XX.
What Penalty is inflicted by Statute upon Contemners of the Sacrament of the Lord’s Supper ?
A. To deprave, despise, and contemn it, by any contemptuous and reviling Words, is by 1 Ed. VI. c. 1. Imprisonment, and Fine at the King’s Will.
Q. May the Minister deny the Sacrament to whom he pleases ?
A. He shall not, without a lawful Cause, deny the Sacrament to any Person, that will devoutly and humbly desire it, 1 Ed. VI. c. 1. but he may and must repel those who are open and evil notorious Livers ; or have done any Wrong to their Neighbours by Word or Deed, so that the Congregation be thereby offended ; or live in Malice or Hatred ; provided he certify the same to the Ordinary within fourteen Days. Rubrick.
Q. What notorious Crimes are specified in the Canons for which Persons shall not be admitted to the Communion till they be reform’d ?
A. Adultery, Whoredom, Incest, Drunkenness, Swearing, Ribaldry, Usury, or any other Uncleanness and Wickedness of Life. Also Churchwardens, who refuse to make Presentment according to their Oath, shall be refused Communion : Nor shall any Minister administer but to such as kneel, under Pain of Suspension ; nor to any that refuse to be present at Prayers, or who are Depravers of the Common-Prayer, or XXXIX Articles, or Form of Consecration and Ordination, or of the King’s Supremacy, except every such Person shall first acknowledge to the Minister before the Church-wardens, his Repentance for the same, and promise by Word ( or Writing, if he can write ) , that he will do so no more : Nor lastly, to Strangers from other Parishes. Can. 26, 109, 27, 28.
Q. How often is the Communion to be receiv’d by every Parishioner in a Year ?
A. Three times at least, whereof Easter is to be one ; and all Persons of the Age of Sixteen, not communicating at Easter, shall have their Names exhibited, by the Minister and Churchwardens, to the Bishop or his Chancellor, within forty Days. Can. 21. 112.
Q. What Number is requir’d to celebrate a Communion ?
A. There shall be no Communion except there be three at least, besides the Priest, to communicate : But in Communion with the Sick, in the Time of Plague or contagious Sickness, the Minister alone may communicate with the sick Person.
Q. Who are qualified to celebrate the Communion ?
A. None but Priests at the least. If any Person presume to consecrate and administer before such Time as he shall be ordained Priest, he shall forfeit for every Offence 100l. and be disabled from being a Priest one whole Year, by the Act of Uniformity.
Q. Where is the Communion-Table to be placed at the Time of Administration ?
A. In the Body of the Church, or in the Chancel, in such Sort, as the Minister may be more conveniently heard of the Communicants, and the Communicants also more conveniently, and in more Number, may communicate with the Minister. Canon 82.
Q. If the Minister and Churchwardens disagree about disposing of the Money given at the Offertory — ?
A. It shall be disposed of as the Ordinary shall appoint. Rubrick.
Q. Who shall provide the Bread and Wine ?
A. The Curate and Churchwardens, at the Charge of the Parish. Rubrick.
Q. What does the Church of England hold concerning the Lord’s Supper ?
A. That “it is not only a Sign of the Love that Christians ought to have among themselves one to another ; but rather it is a Sacrament of our Redemption by Christ’s Death : Insomuch that to such as rightly, worthily, and with Faith receive the same, the Bread which we break is a partaking of the Body of Christ ; and likewise the Cup of Blessing is a partaking of the Blood of Christ.” Article 28.
Q. What does the Church of England hold concerning Transubstantiation, or the Change of the Substance of Bread and Wine ?
A. That “it is repugnant to the plain Words of Scripture, overthroweth the Nature of a Sacrament, and hath given Occasion to many Superstitions.”” Ibid.
Q. Why does the Church injoin Kneeling at the Time of Receiving ?
A. Not by Way of Adoration, but as a Token of Humility and Gratitude, and for avoiding of such Profanation and Disorder, in the Holy Communion, as might otherwise ensue.
Q. How often shall there be Communion in Cathedral and Collegiate Churches and Colleges ?
A. Every Sunday at least, without reasonable Cause to the contrary. Rubrick.
Q. May the Communion be administer’d in private Houses ?
A. Not except it be in Times of Necessity, upon Pain of Suspension for the first Offence, and Excommunication for the second.
Q. What Houses are in this Case by the Canon reputed private Houses ?
A. Houses wherein are no Chapels dedicated and allow’d by the Ecclesiastical Laws of this Realm.
Tit. XXI.
Is Penance properly a Sacrament ?
A. No, inasmuch as it hath neither any outward Sign instituted by Christ, nor any inward Grace particularly annex’d to it. If publick, it’s confessedly a Part of Church Discipline ; if private, it is only the Application of the Powers of the Keys to a particular Person for his Comfort and Correction.
‡ For full discussion of Penance see Tit. xlvi below.Q. Is [ ‡ Private ] Confession to a Priest necessary in order to Forgiveness of Sin ?
A. If a true Penitent receive Absolution from his Minister, God ratifies the Sentence, and forgives the Sin. But so God would have done, had neither any Confession been made to, or Absolution received from him. ‡ And that the Sin is forgiven, is owing to the Mercy of God, upon the Repentance of a Sinner, and not to be ascribed to the Priest’s Sentence.
‡ The Form of Ordination of a Priest: “Receive the Holy Ghost, for the Office and Work of a Priest in the Church of God, now committed unto thee by the Imposition of our Hands : Whose Sins thou dost forgive, they are forgiven ; and whose Sins thou dost retain, they are retained : And be thou a faithful Dispenser of the Word of God, and of his Holy Sacraments ; in the Name of the Father, and of the Son, and of the Holy Ghost. Amen.” See Tit. vi. above.Q. But may it not be expedient in some Cases, tho’ not necessary, for a Man to confess his secret and hidden Sins to the Minister ?
A. Yes, for the unburdening of his Conscience, and to receive spiritual Consolation and Ease of Mind from him ; and in that Case, the Minister is straightly charg’d and admonish’d ( by the 113th Canon, agreeably to former Constitutions ) that he do not at any Time reveal and make known to any Person whatsoever, any Crime or Offence, so committed to his Trust and Secrecy, ( except they be such Crimes as by the Laws of this Realm his own Life may be call’d into Question for concealing the same ) under Pain of Irregularity. There is also this prudent Caution laid down in a Constitution of Archbishop Walter, Temp. Edv. II. Item Caveant Sacerdotes, ne peccata a poenitentibus inquirant, aut nomina personarum etim quibus peccaverint, sed circumstantias tantum, & qualitatem peccati ; cum scriptum sit, Deus, vitam meam nunciavi tibi, & non alterius ; & propria debet esse Confessio, & non aliena.
Q. Is Extreme Unction a Sacrament ?
A. No, inasmuch as it was neither instituted by Christ, nor hath any spiritual Effects annex’d to it : ’Tis indeed nothing but an absurd Superstition, built upon a gross misinterpretation of a single Passage in St. James’s Epistle ; which Passage relates not at all to the Salvation of the Sick in the World to come, but to their miraculous Recovery in this : In order to which, Direction is there given for anointing the Sick with Oil, that the Lord may raise him up, and his Sins be forgiven him.
Tit. XXII.
What Matrimony is to be reputed unlawful ?
A. Such only as is within the prohibited Degrees, or otherwise contrary to the Law of God.
Q. What are the prohibited Degrees ?
A. They are particularly express’d in a Table set forth by Authority in the Year of our Lord, 1563, which is, or ought to be, publickly set up and fixed in every Church, at the Charge of the Parish. See the Appendix No IV. These Degrees are either of Consanguinity or Affinity, and by the Table it appears in general, that
Either by Marriage, or by Blood, in any Sense whatever.
Q. What Rules are laid down for the better understanding of the probibited Degrees ?
A. I. That Marriages in the ascending and descending Line, i.e. of Children, with their Father, Grandfather, Mother, Grandmother, and so upwards, are prohibited without Limit.
II. That there are several Degrees, which altho’ not expressly nam’d in the Levitical Law, are yet prohibited by that, and by our Laws, Paritate rationis.
IlL That Consanguinity and Affinity ( letting and dissolving Marriages ) is contracted, as well in them and by them which be of Kindred by the one Side, as in and by them which be of Kindred by both Sides.
IV. Consanguinity and Affinity ( letting and dissolving Marriage ) is contracted as well by unlawful Company of Man and Woman, as by lawful Marriage.
V. That the Relation still continues after the Decease of the Party related.
Q. What Rules are there to know the Degrees of Kindred ?
A. Kindred is distinguish’d by Lines, either the Right Line, or the Collateral ; to find the Difference of Degrees in both which, the Canon Law lays down the two following Rules.
Q. What is the Rule in the right Line ?
A. In the right Line * there are so many Degrees as there are Persons begotten, not reckoning the common Stock from which all descended. For Example ; There is the Grandfather, Father, and Grandson ; Now ( not computing the Grandfather ) the Father being born, makes one Degree ; the Grandson being begotten by the Father, makes the second Degree —
* See Wood’s Imperial Law, pag. 43, &c.Q. What is the Rule in the Collateral Line ?
A. In whatsoever Degree the Persons are distant from the common Stock, in the same Degree they are distant front each other. Here my Brother and I are distant but one Degree ; for we are distant but one Degree from our Father, the common Stock from whence we descend : Here also from my Uncle’s Son I am distant but two Degrees ; because we are distant but two Degrees from the Grandfather, the Common Stock where we must fix our Computation.
Q. What is the Method of Computation, where the Degrees are unequal ; that is, where one is nearer to the common Stock than the other ?
A. The Rule is, In whatsoever Degree the remotest Person is distant from the common Stock, in such a Degree the Persons are distant from each other : So, I and the Grandchild of my Uncle are distant only in the third Degree ; for the Grandchild of my Uncle is distant but three Degrees from my Grandfather, which is our nearest common Root.
Q. Does the Civil Law compute the Degrees of Kindred in the same Manner as the Canon Law does ?
A. They agree as to the Right Line, but as to the Collateral there is a Disagreement. For by the Civil Law, the Rule to find the Difference is the same in the collateral as in the right Line, viz. That there are so many Degrees, as there are Persons begotten, not reckoning the common Stock. So that by the Civil Law, I differ from my Brother two Degrees, and from my Uncle’s Son I am in the fourth Degree, from his Grandson in the fifth.
Q. Does the Common Law of England follow the Computation of Degrees according to the Civil Law, or according to the Canon Law ?
A. According to the Canon Law.
Q. Whence seems to have arose the vulgar Mistake, that First-Cousins may marry, but Second-Cousins cannot ?
A. It might probably be from confounding the Civil and Canon Law together ; for by the Civil Law First Cousins were allowed to marry, by the Canon Law neither First nor Second could, for the Prohibition of the Canon Law extended to the Fourth Degree : Nay, the more ancient Prohibition of the Canon Law was to the Seventh Generation ; till in the fourth Council of Lateran, which was held in the Year of our Lord 1215, it was reduced to the Fourth Degree : Which Limitation was also the Rule of the Church of England, till 32 Hen. VIII. cap. 38. which declares all Marriages lawful that are not prohibited by the Law of God.
Q. What if any Persons marry within the prohibited Degrees ——?
A. The Marriage shall be adjudged incestuous, and unlawful ; and consequently shall be dissolved, as void from the Beginning : And the Parties so married, shall by Course of Law be separated. Canon 99.
Q. In what other Respect may Marriages be contrary to the Law of God, besides that of being within the Levitical Degrees ?
A. Persons pre-contracted to one another, are prohibited by the Law of God to marry against such Pre-contract ; and so Persons of natural Impotency may not marry at all ; since if Marriage answer not the End of avoiding Fornication, &c. it is null : So likewise where there can be no Consent, or the Person is under the Age of Consent, or where a Woman hath a Husband living, or a Man a Wife living, &c.
Q. What Penalty is there for carrying away Maid, Wife, or Widow Woman against her Will, unlawfully, that hath Lands or Goods, or is an Heiress ?
A. By 39 Eliz. cap. 9. ’tis Felony, without Benefit of Clergy ; if she be so taken as to be married to the Misdoer, or deflower’d by him : If the Woman has nothing, and was neither marry’d nor deflower’d, it is not within the Statute.
Q. Can the Woman be admitted an Evidence against the Misdoer ?
A. Yes, because such Marriage was founded in Force and Terror ; and because, as such Cases are generally contrived, so heinous a Crime would go unpunished, unless the Testimony of the Woman should be received.
Q. Are the Receivers within this Statute ?
A. The Receivers of the Woman are Principals, but the Receivers of them who took the Woman Accessories.
Q. What Penalty is there for taking away any Maid or Woman-Child under Sixteen, without the Consent of the Father or Guardian ?
A. Two Years Imprisonment, or a Fine by the Court of King’s-Bench.
Q. What if the Person taking her away deflower her ; or by secret Arts, Letters, Messages, &c. contract Matrimony, without the like Consent ?
A. ’Tis five Years Imprisonment, and Fine : And if the Woman agree to such Contract, the next of Kin to her, to whom the Inheritance should descend, shall enjoy all her Lands during Life, and then they shall remain to the right Heir.
Q. What Age does the Canon require for Consent of Parents or Guardians ?
A. None under the Age of one and twenty Years compleat, shall contract themselves, or marry without Consent of their Parents, or of their Guardians and Governors, if their Parents be deceased. Canon 100.
Q. Is such Consent necessary when Banns are published ?
A. Yes ; if the Parties be under the Age of Twenty-one, the Parents or Governors of them shall either personally, or by sufficient Testimony, signify to the Minister their Consents given to the said Marriage. Canon 62.
Q. What Penalty is there for having two Wives or two Huibands at the same Time ?
A. ’Tis Felony ; except the Husband or Wife shall be continually remaining beyond Seas for seven Years, or absent him or herself by the Space of seven Years together in any Part of his Majesty’s Dominions, the other not knowing him or her to be living within that Time.
Q. Can the first Husband or Wife be produced at the Trial as a Witness to prove the first Marriage ?
A. A Wife against a Husband, or a Husband against a Wife, can in no Case be admitted to give Evidence, except Treason ; or except where the Marriage was founded in Force and Terror, and is the Matter in Question.
Q. Are Persons lawfully divorced subject to the Penalty ?
A. A Divorce a Vinculo or a Thoro & Mensa is a Discharge from the Felony.
Q. Is it a former Marriage within the Statute, if either Party were under Age of Consent ?
A. No : For from such Marriages, the Parties may afterwards disagree at the Age of Consent the Man at Fourteen, the Woman at Twelve.
Q. What Penalty is upon the Minister for marrying without Banns or Licence ?
A. By the 62d Canon, Suspension for three Years ; and by 10 Ann. c. 19. Forfeiture of 100l. and if the Offender be a Prisoner in any private Gaol, he shall be removed to the County-Gaol, and charged in Execution with the said Penalty : And if any Gaoler or Keeper of any Prison shall be privy to, or knowingly permit any such Marriage, he shall also forfeit 100l.
Q. When must the Banns be published, and where ?
A. Three several Sundays or Holy-days, in the Time of divine Service, as the Rubrick directs, in the Parish Church or Chapels where the Parties dwell.
Q. What is the Canonical Hour for Marriage ?
A. Between Eight and Twelve in the Forenoon.
Q. Where ought Marriage to be celebrated ?
A. In the Parish Church or Chapel where one of the Parties dwelleth.
Q. Who have Authority to grant Licences ?
A. Only such as have Episcopal Authority, or the Commissary for Faculties, Vicars General of the Archbishops and Bishops, sede plena or sede vacante, the Guardian of the Spiritualties, or Ordinaries exercising of Right Episcopal Jurisdiction, in their several Jurisdictions respectively.
Q. To whom are Licences regularly to be granted ?
A. To such Persons only as be of good State and Quality, and that upon good Caution and Security taken. Canon 101.
Q. What Conditions shall be contained in that Security ?
A. 1. That there is no Impediment of Precontract, Consanguinity, Affinity, or other lawful Cause to hinder the said Marriage. 2. That there is no Controversy or Suit depending in any Court, before any Ecclesiastical Judge, concerning such Precontract. 3. That they have obtained thereunto the express Consents of their Parents, if they be living ; otherwise of their Guardians and Governors. Lastly, That they shall celebrate the said Matrimony publickly in the Parish Church or Chapel where one of them dwelleth, and in no other Place, and that, between the Hours of eight and twelve in the Forenoon. Canon 102.
Q. What further Care is taken to prevent all Fraud and Collusion in obtaining of Licences ?
A. ’Tis ordered, that before the granting of any Licence, it shall appear to the Judge by the Oath of two sufficient Witnesses, one of them to be known either to the Judge himself, or to some other Person of good Reputation then present, and known likewise to the Judge, that the express Consent of the Parents, or Parent, if one be dead, or Guardians of the Parties, is thereunto had and obtained : And further, that one of the Parties personally swear, that he believeth there is no Impediment nor Suit.
Q. Is it necessary for Persons in Widowhood to have Consent of Parents ?
A. No. Canon 104.
Q. What Penalty is upon the Officer granting Licence offending in the Premisses ?
A. Six Months Suspension from the Execution of his Office, and every such Licence or Dispensation shall be held void, and the Parties marrying shall be subject to such Punishments as are appointed for clandestine Marriages. Canon 104.
Q. What Stamp is required for a Licence ?
A. It must be upon a single five Shilling Stamp.
Q. May Marriage be solemnized at all Times of the Year ?
A. By the old Romish Ritual, Marriage was prohibited at certain Times, viz. from Advent-Sunday till Twelfth-Tide, from Septuagesima-Sunday till Low-Sunday, and from Rogation to Trinity-Sunday : And this Distinction of Times hath been observed since the Reformation, and is still observed by some ; but there are no such Prohibitions expressed, or plainly supposed in our Canons or Constitutions.
Q. Is it sufficient to defer the Solemnization, that any Person on the Day of Marriage alledges an Impediment why the Parties may not be coupled together by God’s Law, or the Laws of this Realm ?
A. No ; he must be bound and sufficient Sureties with him to the Parties, or else put in a Caution to the full Value of such Charges as the Persons to be married do thereby sustain, to prove his Allegation. Rubrick.
Q. Are Priests obliged by the Law of God to abstain from Marriage ?
A. No ’tis lawful for them, as for all other Christian Men, to marry at their own Discretion, as they shall judge the same to serve better to Godliness. Article 32.
Q. How is Marriage dissolved ?
A. By the Death of Husband or Wife, and by Divorce.
Q. Is the sole Confession of the Parties sufficient for a Divorce ?
A. No ; there must be Deposition of Witnesses, and other lawful Proofs and Evitions. Canon 105.
Q. How many Kinds are there of Divorce ?
A. Two : Separation a Thoro & Mensa, and Separation a Vinculo.
Q. What is Separation a Thoro & Mensa ?
A. Separation from Bed and Board : And this is in Cases of Adultery, Cruelty, &c. in which the Marriage, having been originally good, is not dissolved ; nor doth it bar the Wife of her Dower, nor bastardize the Children, bat intitles her to Alimony, which the Ecclesiastical Court assigns in Proportion to the Circumstances and Condition of her Husband.
Q. What is Separation a Vinculo ?
A. That which annuls or dissolves the very Bond of Matrimony ; as in Cases of Precontract, or Consanguinity, or Affinity, within the Degrees prohibited : Also of Impuberty, or Frigidity ; where the Marriage of itself was meerly void ab initio, and the Sentence of Divorce only declaratory of its being so.
Q. What are the Effects of that original Voidance and Nullity ?
A. The Wife is barred of Dower, and the Issue is illegitimate, and the Persons so divorced may marry any others ; nay, in Case of Divorce for Precontract, the Person before contracted is bound, by the Decree of the Spiritual Court, to marry the Person with whom the first Contract was made.
Q. After Divorce a Thoro & Mensa, may not the Parties marry any other ?
A. No, not during each other’s Life ; nor shall the Sentence of Divorce be pronounced, till they have given Security to the Court that they will not marry.
Q. May not the innocent Party, in Case of Adultery, marry again ?
A. No ; by the Doctrine of the Canon Law, and the ancient Constitutions of the English Church, grounded upon two remakable Texts of Scripture, Mark x. 11. and 1 Cor. vii. 2. But because our Saviour in another Place prohibiting Divorces and new Marriages thereon, specially excepts the Case of Fornication, it seems unreasonable that the Innocent should suffer for the Crime of another ; and upon this Principle several Acts of Parliament, for the Divorce of particular Persons in the Case of Adultery, have expressly allowed a Liberty to the innocent Person of marrying again.
Q. What Penalty lies upon the Judge giving Sentence of Divorce against the Canons ?
A. He shall be suspended from the Exercise of his Office a whole Year, and the Sentence of Separation shall be void. Canon 108.
Tit. XXIII.
What is the Minister’s Duty when any of his Parishioners is dangerousy sick ?
A. He shall resort unto him or her ( if the Disease be not known, or probably suspected to be infectious ) to instruct and comfort them in their Distress, according to the Order of the Common-Prayer, or as he shall think most needful and convenient. Canon 67.
Q. May the Minister refuse or delay to bury any Corpse, that is brought to the Church or Church-yard, convenient Warning being given him thereof before ?
A. No ; ( except the Party deceased were denounced Excommunicated Majori Excommunicatione, for some grievous and notorious Crime, and no Man able to testify of his Repentance, or were unbaptized, or had laid violent Hands upon himself ) upon Pain of Suspension for three Months. Canon 68.
Q. Are there any other Cases in which Christian Burial was anciently denied ?
A. Yes. Particularly, 1. To Hereticks. 2. Persons not receiving the Holy Sacrament, at least at Easter. And, 3. Persons kill’d in Duels, Tilts, or Tournaments.
Q. Is there any Fee due for Burial ?
A. A Fee for Burial may be due by Custom ; and where it is so, belongs to the Minister of the Parish where the Deceased heard Divine Service, and received Sacraments, wheresoever the Corpse be buried.
Q. Upon what does the Proportion of the Burial Fees depend ?
A. The Proportion of Fees due for the Burial of Persons, whether to Incumbent or Churchwardens, whether for burying in or out of the Parish, depends upon the particular Usage and Custom of each Parish respectively.
Q. May a Person be buried in the Church, or any Part of it, without Consent of the Incumbent ?
A. No ; unless a Burying-Place within the Church is prescrib’d for, as belonging to a Manor-House.
Q. Upon what Account does this Right of giving Leave belong to the Incumbent ?
A. It belongs to him, not as having the Freehold, at least not in that Respect alone, but in his general Capacity of Incumbent, and as the Person whom the Ecclesiastical Laws have appointed the Judge of the Fitness or Unfitness of this or that Person, to have the Favour of being buried in the Church.
Q. May Monuments, Coat-Armour, and other Ensigns of Honour set up in Memory of the Deceased, be removed at the Pleasure of the Ordinary of Incumbent ?
A. No : on the contrary, if either they, or any other Person, shall take away, or deface them, when set up with the Consent of the Ordinary, the Person who set them up shall have an Action against them during his Life ; and after his Death the Heir of the Deceased shall have the same.
Q. Can a Corpse once buried be taken up or removed ?
A. Not without Licence from the Ordinary.
Q. What is the Import of the Act for burying in Woollen ?
A. ’Tis enacted, That no Person ( except dying of the Plague ) shall be buried in Sheet, Shirt, Shift, or Shroud, or any Thing whatever, made or mingled with Flax, Hemp, Silk, Hair, Gold, or Silver, or in any Stuff, or Thing, other than what is made of Sheeps-Wooll only, or be put into any Coffin lined, or faced with any Sort of Cloth or Stuff, or any other Thing whatever, that is made of any other Material but Sheeps-Wooll only, upon Pain of forfeiting five Pounds. 18 Car. II. c. 4.
Q. How far are Ministers and Churchwardens concerned in this Act ?
A. An Affidavit of the Persons being so buried must be brought to him within eight Days, by some of the Relations of the Deceased, or other credible Person : If none is brought, he is to give Notice thereof in Writing under his Hand ( forthwith ) to the Churchwardens or Overseers ; who within eight Days shall Repair to some Justice of the Peace, or chief Magistrate, to obtain a Warrant, and levy the Forfeiture.
Every Minister shall also keep a Register, in a Book provided at the Charge of the Parish, and make a true Entry of all Burials within his Parish, and of all Affidavits brought to him as aforesaid : And where none such shall be brought in due Time, shall enter a Memorial thereof against the Name of the Party interr’d, and of the Time when he notified the same to the Church-wardens or Overseers of the Poor. 30 Car. II. c. 3.
Q. Before whom is the Affidavit to be made ?
A. Before a Justice of Peace, or any neighbouring Clergyman, who are authorized and required to administer the said Oath, and to attest the same under their Hands gratis.
Q. What Penalty is there upon Minister, Church-wardens, and Justice, neglecting their Duty herein ?
A. Forfeiture of five Pounds ; one Half to the Poor of the Parish where the Offender liveth, the other between the King and the Informer.
Q. What Time is limited for Prosecution, upon this Act ?
A. It must be within six Months after the Offence shall be committed.
Q. Is there any thing required of the Overseers of the Poor upon this Head ?
Tit. XXIV.
What is a Last Will or Testament ?
A. Testament ( Testatio mentis ) is a voluntary and just Disposition of what one would have to be done concerning his Goods and Chattels, Lands, and Tenements after his Decease, with the Appointment of an Executor. See Wood’s Instit. 317.
Q. Are all Wills under the Cognizance and Direction of the Ecclesiastical Laws ?
A. No ; such only as concern the Disposal of Goods and Chattels ; the Matter of the Devise of Lands, Tenements, and Hereditaments, with all Questions incident thereto, is to be determined by the Laws Temporal, and is not subject to the Rules or Decisions of the Laws Civil or Eccefiastical.
Q. Can Last Wills and Testaments be made equally by all Persons ; or being made in due Form, will they be equally valid in all Cases ?
A. There are several Disabilities reckoned up in the Institutes and Digests of the Roman Law, which in the main are also accounted such by the Law and Practice of England ; by which all Persons may make Testaments, except as followeth : 1. An Infant Male, under fourteen Years of Age ; an Infant Female, under twelve. 2. Feme Covert, ( Foemina Viro Co-operta ) or a Married-Woman, without the Consent and Licence of her Husband. 3. Ideots, Lunaticks, ( except in the Time of their Lucid Intervals ) and those that have not a sound, perfect, and disposing Memory. 4. An Alien Enemy. 5. Persons convicted and attainted. 6. Recusants convict.
Q. How many Sorts of Testaments are there ?
A. Two : A Written Tefamnent, and a Nuncupative one.
Q. A Will being made by a Person capable of making, and committed to Writing by himself, or by any ether, what else is required ?
A. That it be duly published, in the Presence of two sufficient Witnesses at the least.
Q. What Qualifications are requir’d in Witnesses ?
A. Whoever is not by Law forbidden to be a Witness, ih to be admitted.
Q. Can a Woman or a Legatary be Witness ?
A. Yes, a Woman may absolutely ; the Testimony of a Legatary is good, if he has either receiv’d his Legacy, or renounc’d it.
Q. What is a Nuncupative Will ?
A. When the Testator doth, by Word of Mouth only, declare his Will concerning his Goods and Chattels, before a sufficient Number of Witnesses.
Q. Can a Will, being made and published in due Form, be revoked or cancelled by the Testator ?
A. Yes ; and not only so, but becomes void of Course, by the making of a new Will.
Q. Can a Nuncupative Will make void a former written Will ?
A. No Will in Writing concerning Goods and Chattels, or any personal Estate, nor any Clause thereof, shall be repeal’d, or alter’d, by any Will by Word of Mouth only, except the same be in the Life-time of the Testator committed to Writing ; and after the writing thereof, read unto the Testator, and allowed by him, and prov’d to be so done by Three Witnesses at least. 29 Car. II. cap. 3.
Q. What is requir’d to make a Nuncupative Will good ?
A. No Nuncupative Will shall be good, where the Estate bequeathed exceeds Thirty Pounds, that is not proved by the Oaths of Three Witneses at least, that are present at the making thereof ; and unless it be proved that the Testator, at the Time of pronouncing the same, did bid the Persons present, or some of them, bear Witness, that such was his Will, or to that Effect ; nor unless such Will were made in the last Sickness, and in the House of his or their Habitation or Dwelling, or where he or she hath been resident, for the Space of ten Days, or more, next before the making of such Will, except surpriz’d by Sickness from home, or dying before he return’d.
Q. What Limitations are there as to the Time of proving a Nuncupative Will ?
A. A Nuncupative Will shall not be proved by the Witnesses after six Months, except the Substance thereof were committed to Writing within six Days after the making of the said Will. Neither shall any Probate of a Nuncupative Will pass the Seals of any Court, till fourteen Days after the Decease of the Testator ; nor be prov’d, till Process hath first issued to call in the Widow or next of Kin to contest the same, if they please.
Q. What Witnesses are good to prove a Nuncupative Will, or any thing relating thereto ?
A. All such as are good Witnesses at Trials at Common Law. 4, 5 Ann. c. 16.
Q. In what Respects does a Will of Goods and Chattels differ from a Devise or Bequest of Lands and Tenements ?
A. A Will of Goods and Chattels requires but Two sufficient Witnesses : A Will of Lands, Tenements, and other Hereditaments, Three or Four. Goods and Chattels may be given by a Nuncupative Will ; but all Devises and Bequests of Lands and Tenements, shall be in Writing, and signed by the Party so devising the same, or by some other Person in his Presence, and by his express Directions ; and shall be attested and subscribed in the Presence of the said Devisor by three or four credible Witnesses, or else they shall be utterly void. A Will of Goods and Chattels may be revoked by a Nuncupative Will, according to the Directions, Pag. 154. But no Devise in Writing of Lands, &c. is revocable, otherwise than by some other Will in Writing, or other Writing declaring the same ; or by burning, cancelling, tearing, or obliterating the same by the Testator himself, or in his Presence, and by his Direction and Consent. A Will cannot be made of Lands, &c. by any Person under the Age of One and Twenty Years ; a Will of Goods and Chattels may : And lastly, a Will of Goods and Chattels may be made by Feme Covert, by Agreement or Consent of her Husband ; but a Will of Lands cannot.
Q. You say a Will made of Lands, &c. must be sign’d ; what if the Whole be written with the Testator’s own Hand, and have his Name at the Beginning ; as, In the Name of God, Amen. I, A.B. &c.
A. It has been adjudg’d a sufficient Signing within the Statute.
Q. May the Testator add to or detract from his Will ?
A. Yes, by a Codicil, or Codicils ; which are reputed for Part and Parcel of the Testament, and are to be perform’d as well as the Testament, unless contrary to something contain’d in it.
Q. Does a latter Codicil supercede a former ?
A. No, they may be as numerous as the Testator pleaseth.
Q. What is the Probate of a Will ?
A. When a Will is prov’d either in common Form by the Oath of the Executor, before the Ordinary, or by Witnesses, besides his own Oath, it must be exhibited in the Office belonging to the Ecclesiastical Court to be kept by the Register, and a Copy thereof in Parchment is to be deliver’d to the Executor under the Ordinary’s Seal ; which Copy in Parchment so seal’d is call’d the Probate.
Q. Before whom is the Executor to prove the Will ?
A. If all the Goods of the Deceased ( under which are comprehended Specialties, as, Bonds, Statutes, &c. ) be within the same Diocese and Jurisdiction, wherein the Testator lived and died, it must be prov’d before the Bishop of the Diocese, or his Commissary, or before the Archdeacon or his Official, or the respective Judge, according as Composition hath been made with the Bishop, or as Prescription directs : But if the Person deceased had at the Time of his Death, Bona Notabilia, in divers Dioceses, or peculiar Jurisdictions, it must be prov’d in the Prerogative Court of the Archbishop of that Province.
Q. What are accounted Bona Notabilia?
A. He is accounted to have Bona Notabilia, who dies possessed of Goods and Chattels in some other Diocese or Dioceses, or peculiar Jurisdiction within that Province, than that wherein he died, amounting to the Value of Five Pounds at the least, unless where by Composition or Custom, Bona Notabilia are reckon’d at a greater Sum ; as they are in London at Ten Pounds.
Q. Suppose one dies possess’d of Goods in London and Dublin — ?
A. The Archbishop of Canterbury is to grant Probate for the Goods in London, and the Archbishop of Dublin for the Goods in Dublin, because they are distinct supreme Jurisdictions : And so for Canterbury and York.
Q. If some Part of the Goods be in the Diocese of an Archbishop, and Part in a Peculiar in the same Diocese — ?
A. There must be two several Probates.
Q. If the Goods are within two Peculiars within the same Diocese — ?
A. Then the Will must be prov’d before the Archbishop of the Province.
Q. If all the Goods lie in a peculiar Jurisdiction — ?
A. The Will must be prov’d before the Judge of that Peculiar.
Q. Is the Money or Profits of Lands will’d to be sold, reckon’d Part of the Goods or Chattels of the Deceased ?
A. No. 21 H. VIII. c. 5.
Q. Are Goods found about a Person dying in itinere, to be accounted Bona Notabilia?
A. No.
Q. What is Administration ?
A. It is the Management, committed by the Ordinary in Writing under Seal, of the Goods and Chattels of one that dieth intestate, or hath made a Will without appointing an Executor, or where the Executor refuseth to prove the Will.
Q. By whom is Administration to be granted ?
A. Regularly he that shall have the Probate of a Will, shall have the Grant of Administration when the Party dieth intestate ; and if there are Bona Notabilia, the Administration must be granted there, where the Probate of a Will, in such a Case, is to be granted. The Law is the same in both Cases.
Q. To whom ought the Administration to be granted ?
A. To the Widow, or the next of Kin, who are not attainted of Treason, Felony, or have other Disability, but are lawful Friends of the Deceased.
Q. What Remedy is there, if this is denied ?
A. A Mandamus will go from the Temporal Courts to grant it, except a Controversy is depending.
Q. If divers Persons claim the Administration as next of Kin — ?
A. The Ordinary may admit any one or more at his Pleasure.
Q. What Method does the Ordinary take to secure himself, upon granting Letters of Administration ?
A. He takes a sufficient Bond, with two or more able Sureties, with the following Conditions ; That the Administrator make a true and perfect Inventory, and administer according to Law, and make a just Account, and pay according to the Appointment of the Judge, and deliver the Administration if a Will be prov’d.
Q. In what Manner is the Inventory to be taken ?
A. The Executors or Administrators must take two Persons at least, to whom the deceased Person was indebted, or left any Legacy, or upon their Refusal, two other honest Persons, and in their Presence, and by their Discretion, shall make, or cause to be made, a true and perfect Inventory of the Goods, Chattels, Credits, Wares, Merchandizes, as well moveable as not moveable, that belonged to the Deceased, and the same shall cause to be indented, whereof the one Part shall be by the said Executor or Administrator, upon Oath before the Ordinary to be good and true, presented sented to the Ordinary, and the other remain with the Executor. 21 H. VIII. cap. 5.
Q. When must the Inventory be exhibited ?
A. The Time is left to the Discretion of the Ordinary, or he may release the Executor from that Obligation, and decree that it is not necessary in particular Cases and Circumitances.
Q. Can any Person demand a Copy of the Probate and Inventory ?
A. Yes : And the Ordinary is required to deliver it with convenient Speed.
Q. What if the Executor will not appear, or appearing, refuse to prove the Testament — ?
A. The Ordinary may commit the Administration, cum Testamento annexo, to the next of Kin.
Q. But what if he will afterwards undertake the Executorship ?
A. The Ordinary may revoke the Administration.
Q. In what Cases may an Executor be compell’d to perform the Office of an Executor ?
A. If he has meddled with the Goods of the Testator, as Executor ; or if a Legacy be left him, otherwise he shall lose his Legacy.
Q. Is the Ordinary bound to prove the Will ?
A. Yes ; and if he refuse, where the Will is not controverted, a Writ will go from the Temporal Courts to compel him to proceed to Probate.
Q. Is every Executor or Suitor for Administration obliged to take the Oath accustom’d in that Behalf before the Judge himself ?
A. No : The Judge, in Case of a reasonable Impediment, may appoint a Commissioner, some Ecclesiastical Person abiding near the Party. Canon 132.
Q. What Care is taken for the Preservation of Wills prov’d in Peculiars ?
A. They are to be transmitted to the Registry of the Bishop, or Dean and Chapter, on Pain of Suspension. Canon 126.
Q. Are Administrators upon the same Foot with Executors ?
A. They had formerly no Property in the Goods and Chattels, as Executors had ; nor could they recover Debts as Executors could do ; but by 31 Ed. III. they are enabled in both these Respects.
Q. After what Manner are the Goods of an Intesate to be distributed, after Debts, Funerals, and just Expences of every Sort allowed and deducted ?
A. By 22, 23 Car. II. c. 10. amongfl the Wife and Children, or next of Kin, in this Manner : One Third to the Wife, the Residue by equal Portions amongst the Children, and such Persons as legally represent them, in case any of the said Children be then dead, other than such Child or Children ( not being Heir at Law ) who have any Estate by Settlement of the Intestate, or have had their Portion before, equal to what shall be distributed. But the Heir at Law, notwithstanding any Land that he shall have by Descent, or otherwise from the Intestate, shall have an equal Part in the Distribution with the rest of the Children.
Q. What if there be no Children, nor legal Representatives of them ?
A. One Moiety of the Estate shall go to the Wife, the Residue shall be distributed equally to every of the next of Kindred to the Intestate, who are in equal Degree, and those who legally represent them.
Q. How far does the Law in this Case allow of Representation among Collaterals ?
A. ’Tis the Practice of the Ecclesiastical Court, and confirm’d by Statute, to reject all Representations of Collaterals, except Children of the Intestate’s Brothers and Sisters.
Q. Does the Half-Blood come in for Distribution with the Whole-Blood ; as, Suppose one dies intestate, and leaves two Brothers, one of the Whole-Blood, the other of the Half-Blood — ?
A. Yes, they shall share alike.
Q. What if there be neither Wife nor Children ?
A. The Whole shall go among the Kindred, in equal Degree, and their legal Representatives.
Q. What if Debts appear afterwards ?
A. To the End that a due Regard be had to Creditors, ’tis enacted, That no such Distribution shall be made till after one Year, and every Person who hath a Share, shall give a Bond, if there should be Occasion, to refund.
Q. What if an Infant is intitled to an Administration of the Goods of an Intestate —— ?
A. Administration shall be granted to another, durante Minore aetate, for his Use and Benefit, till he is of full Age, i.e. One and Twenty.
Q. Is there no Exception to the Rule in the Statute concerning granting Adminifstration to the Wife or next of Kin ?
A. Where an Executor refuses to prove the Will, the Statute supposes that such an Intestate’s Intent was to prefer the Kin. But if he makes a Residuary Legatee, that Presumption is taken away, and he, being intitled to what remains, after Debts and Legacies paid, hath the first and best Title to be Administrator of the Estate.
Q. Is it in the Election of the Ordinary, whether he will grant Administration to the Wife, or to the next of Blood ?
A. Yes ; but having made Choice, he cannot revoke it without just Cause.
Q. Are Feme Coverts that die intestate, within the Act ?
A. No ; their Husbands may demand and have Administration. 29 Car. II. c. 3.
Q. If a Child die after the Father intestate, without Wife or Children, in the Lifetime of the Mother, what becomes of his Share ?
A. Every Brother, and Sifter, and the Representatives of them, shall have an equal Share with the Mother. 1. Jac. II. c.
Q. Can an Administrator be cited to render an Account before the Ordinary of the personal Estate of the Intestate, otherwise than by an Inventory ?
A. No, unless at the Instance or Prosecution of some Person or Persons, in Behalf of a Minor, or having Demand out of such Personal Estate as Creditor, or next of Kin. 1 Jac. II. c. 17.
Q. In what Cases do Administrations die, and expire of themselves ?
A. 1. Administrations durante minore aetate Executoris ; the Power of which ceases as soon as the Executor is seventeen Years of Age, and may be revok’d before. 2. Administrations durante absentia extra regnum. 3. Administrations pendente lite, or, if there be no Controversy, till the Executor comes in ; which, as well as the two former Heads, are out of the Statute, and, like those, fall of course, as soon as the Consideration ceases upon which they are granted.
Q. What are the Statutable Fees due for Probate of Will and Administration ?
A. By 21 Hen. VIII. c. 5. if the Goods of the Deceased do not amount clearly over and above the Value of One hundred Shillings Sterling, nothing shall be paid for the Probate, only Six-pence to the Scribe. Goods being above 5l. and not above 40l. Three Shillings and Six-pence : Goods being above 40l. the whole Fee shall be but Five Shillings, or ten Lines a Penny. The same for Administration, only there is no Provision made for above 40l. which is Casus omissus. And for these Sums, the Will shall be register’d, and deliver’d under Seal to the Executor.
Q. What is the Fee for delivering a Copy of the Testament and Inventory ?
A. The same as that for Registering, or a Penny for every ten Lines.
Q. What Penalty is there for Offences against this Statute ?
A. Forfeiture of so much Money as any Person shall take contrary to it, to the Person griev’d, and Ten Pounds, one Half to the King, and the other Half to the Party griev’d.
Q. How come the Charges of Probate and Administration to be at this Time so much increased ?
A. This Statute being made in the Reign of Hen. VIII. it is agreed on all Hands that the Fees given in it are become much too small, by the great Alteration of the Value of Money, and therefore the Establish’d Custom of every Place, being reasonable, has been adjudg’d a good Rule ; but the greatest Addition to the Expence arises from the Stamps.
Q. What Stamps are required in these Cases ?
A. For a Probate or Administration for any Estate above 20l. Value, a double five Shilling Stamp. For every Copy of a Will engrossed, a Two-penny Stamp, and of an Inventory, a double Six-penny Stamp.
Q. Are Soldiers and Seamen upon the same Foot with others in these Respects ?
Tit. XXV.
What Provision have the Temporal Laws made against Separation and Conventicles ?
A. By 35 Eliz. c. 1. If any Person or Persons above the Age of sixteen Years, shall be absent from the Church, without lawful Cause, for a Month ; or shall advise others to abstain from coming to Church, or to come to unlawful Conventicles, or shall join in any Conventicle, all such Persons shall be committed to Prison till they conform and make Submission, which if they refuse for three Months, being required to do it by the Bishop of the Diocese, or any Justice of Peace of the County, or the Minister of the Parish, they shall abjure the Realm, and the Abjuration shall be enter’d of Record, and certified to the Justices of Assize. And to refuse to abjure, or not to depart, or to return without Licence, shall be Felony without Benefit of Clergy.
Q. What if the Person, before Warning given to abjure, will submit ?
A. He must come to Church, and make open Submission and Declaration of his Conformity, in a Form provided in that Statute, and he shall be discharg’d ; but if he relapses, he shall lose the Benefit of his Submission : This Submission must be register’d in a Book for that Purpose by the Minister, and certified in ten Days to the Bishop.
Q. What does the Person abjuring suffer besides Banishment ?
A. He shall forfeit all his Goods and Chattels for ever, and his Lands during Life.
Q. What Penalty do they incur who keep or retain any in their Houses who shall not repair to Church or Chapel for the Space of one Month together, not having reasonable Excuse ?
A. Ten Pounds Forfeiture, 3 Jac. I. c. 4. and so for any in their Service : But any Persons may keep their Parents, or Ward, notwithstanding this Act.
Q. What other Act is there against seditious Conventicles ?
A. 22 Car. II. c. I. wherein ’tis enacted, That any Person of Sixteen, or upwards, being present at a Conventicle where Five are assembled, in House or Field, upon Proof before a Justice, Record shall be made thereof, and the Party fined 5s. for the first Offence, and for the second 10s. and the said Fines, where there is no Distress to be made, by reason of the Poverty of the Offender, shall be levied upon any other Offender in the same Conventicle.
Q. What Penalty is upon the Preacher ?
A. For the first Offence he shall forfeit 20l. and if he be unable to pay, it shall be levied upon the Persons present : For the second Offence 40l.
Q. What Penalty upon him who suffers a Conventicle in his House ?
A. Forfeiture of 20l. to be levied, in case of Inability, upon the Persons present, yet so as no Person shall pay above 10l. for others.
Q. What Censure does the Canon inflict upon Schismaticks ?
A. To separate from the Communion of the Church of England, as profane and unmeet to join with in Christian Profession ; or to meet together to consult against the Doctrine, Worship, or any Part of the Government and Discipline thereof : Or to affirm that Ministers, refusing to subscribe to the Form and Manner of God’s Worship in it, and their Adherents, may truly take unto them the Name of another Church, not establish’d by Law ; and dare presume to publish it, that this their pretended Church have a long Time groaned under the Burden of certain Grievances imposed on it, and upon the Members thereof, by the Church of England, and the Orders and Constitutions therein by Law establish’d : Or to affirm that separate Meetings may rightly challenge to themselves the Name of true and lawful Churches or that private Persons may make Ecclesiastical Orders and Constitutions, without the King’s Authority, shall be Excommunication, ipso facto. Can. 9, 10, 11, 73.
Q. What is the Act commonly call’d the Toleration Act ?
A. An Act I Will. and Mar. c. 18. confirmed 10 Ann. c. 2. for exempting their Majesties Protestant Subjects, dissenting from the Church of England, from the Penalties of certain Laws, and from Prosecution in the Ecclesiastical Court, for or by reason of their Nonconforming.
Q. Does this Act extend to all Sorts of Protestant Dissenters ?
A. Only to such as shall qualify themselves as therein is prescrib’d.
Q. Upon what Conditions are they intitled to this Exemption ?
A. They mutt take the Oaths of Allegiance and Supremacy at the General Quarter Sessions, and subscribe and repeat the Declaration made 30 Car. II. cap. 1. against Transubstantiation, Invocation of Saints, and the Sacrifice of the Mass, which Declaration is as follows :
I A.B. do solemnly and sincerly, in the Presence of God, profess, testify, and declare, That I do believe that in the Sacrament of the Lord’s-Supper there is not any Transubstantatation of the Elements of Bread and Wine into the Body and Blood of Christ, at or after the Consecration thereof by any Person whatsoever. And that the Invocation or Adoration of the Virgin Mary, or any other Saint, and the Sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous. And do solemnly, in the Presence of God, profess, testify, and declare, That I do make this Declaration, and every Part thereof, in the plain and Ordinary Sense of the Words read unto me, as they are commonly understood by English Protestants, without any Evasion, Equivocation, or mental Reservation whatsoever : And without any Dispensation already granted me for this Purpose by the Pope, or any other Authority or Person whatsoever, or without any Hope of any such Dispensation from any Person or Authority whatsoever ; or without thinking that I am or may be acquitted before God or Man, or absolv’d of this Declaration, or any Part thereof ; although the Pope, or any other Person, or Persons, or Power whatsoever, should dispense with or annul the same ; or declare, that it was null or void from the Beginning.
This Declaration any Dissenter may be required to make, and subscribe, by any Justice of Peace : And upon Refusal, committed to Gaol, till the Quarter-Sessions. and if upon a second Tender, at the General or Quarter Sessions, he shall refuse, he shall be taken for a Popish Recusant Convict.
Q. What is required with respect to the Places where they meet ?
A. No Assembly shall be allowed, till the Place of meeting be certified to the Bishop of the Diocese, or Archdeacon, or Justices at the Quarter Sessions, and registered, and a Certificate thereof given. And their Meetings must be open, not barred or locked.
Q. How must Dissenting Teachers be qualified ?
Q. They must make and subscribe the said Declaration, and take the Oaths at the Quarter Sessions. And declare their Approbation of, and subscribe the Thirty-nine Articles, except the XXXIV, XXXV, and XXXVI ; which concern the Traditions of the Church, Homilies, and the Consecration of Bishops and Ministers : And except also those Words of the XXth Article, [The Church hath Power to decree Rites and Ceremonies, And Authority in Controversies of Faitb, and yet]
Q. Are Anabaptist Teachers intitled to this Exemption ?
A. Upon the same Conditions ; and excepting that they are not obliged to subscribe to the XXVIIth Article, concerning Infant Bantism.
Q. What must Quakers do to have the Benefit of this Act ?
A. Instead of the Oaths, they shall make and subscribe the aforesaid Declaration, and a Declaration of Fidelity to the King, and of his Supremacy ; and shall subscribe a Profession of their Christian Belief in these Words :
I A. B. profess Faith in God the Father, and in Jesus Chris, his eternal Son, the true God, and in the holy Spirit, one God, blessed for evermore ; and do acknowledge the holy Scriptures of the old and new Testament to be given by divine Inspiration.
Q. Are the Laws made for frequenting Divine Service on the Lord’s-Day in Force against Dissenters ?
A. Yes, against all Persons, except they come to some Assembly of religious Worship.
Q. Who are excluded from the Benefit of this Act ?
A. All Papists, or Popish Recusants, and any that in preaching or writing shall deny the Trinity.
Q. Will a Man’s qualifying himself under Prosecution intitle him to the Benefit of this Act ?
A. Yes, Teachers and Preachers excepted.
Q. May Teachers qualified in one County by Virtue thereof officiate in another ?
A. Yes, upon producing if required, a Certificate of being so qualified, and swearing and subscribing if required.
Q. What Penalty is there for disturbing a dissenting Congregation, or misusing the Teacher ?
A. The Offender shall find two Sureties, to be bound by Recognizance in 50l. each, and in Default thereof, be committed to Prison till next Quarter Sessions, and upon Conviction there forfeit 20l.
Tit. XXVI and XXVII.
What Provision is made by Law against Popery ?
A. By 27 Eliz. cap. 2. All Jesuits, Priests, or other Ecclesiastical Persons of the Church of Rome, coming into or remaining in the Queen’s Dominions, shall be adjudged guilty of High Treason and all their Receivers, Aiders, and Maintainers, of Felony, without Benefit of Clergy. To give or send Relief to them, shall be a Praemunire. And if any Person, knowing a Jesuit or Priest remaining within the Realm, do not within twelve Days discover the same to some Justice of Peace, he shall be fined and suffer Imprisonment during the Queen’s Queen’s Pleasure ; and the Justice of Peace who doth not within twenty-eight Days disclose it to some of the Privy Council, shall forfeit two hundred Marks.
Tis also High Treason to execute Pope’s Bulls, or any Instrument from him, or to publish them, or receive them, or to receive Absolution or Reconciliation by Virtue of them ; and if offered, not to disclose them, Misprision of Treason. 3 Eliz. c. 2.
Whoever shall bring into the Realm any Agnus Dei’s, Crosses, Pictures, Beads, &c. or offer or deliver the same to any Person to be used, both the Person so doing, and the Person so receiving the same, shall incur a Praemunire. Ibid.
None shall import Popish Books, upon Pain of forfeiting 40s. for each, and burning of the Books. 3 Jac. I. cap. 5.
Justices may search the Houses of Recusants, and finding Altars, Reliques, Crucifixes, &c. may burn or deface them. Ibid.
All Persons, and the Procurers, and Aiders, and Maintainers of them, who shall put in Practice to absolve the King’s Subjects from their Obedience, or to reconcile them to the See of Rome, or to any other foreign Power, shall be adjudged Traitors. 3 Jam. I. c. 4.
Any Person who shall be convicted of saying or singing of Mass, shall forfeit 200 Marks and be imprisoned a Year ; of hearing Mass, 100 Marks, and the like Imprisonment. 23 Eliz. c. 1.
Q. What Encouragement is there for the Discovery of Jesuits and Popish Priests ?
A. Any Person discovering any Recusant or other Person, who shall entertain any Jesuit, &c. or shall discover any Mass to have been said, and the Priest that said the same, and the Persons present, or any of them, shall have the third Part of the Forfeitures, if the third Part exceed not 50l. 3 Jac. I. c. 5. And by 11, 12 Will. III. c. 4. Any Person seizing a Popish Bishop, Priest, or Jesuit, and prosecuting him till he is convicted of saying Mass, or exercising any other Part of his Function within these Realms, or the Dominions thereto belonging, shall receive 100l. from the Sheriff, upon Certificate from the Judge of his Conviction ; and the Sheriff neglecting to pay it, shall forfeit 200l. And any Priest saying Mass, &c. or Papist teaching School, or boarding Youth, shall be adjudged to perpetual Imprisonment ; except for saying Mass in the Houses of foreign Ministers, the Priest not being a natural-born Subject, and his Name, and the Place of his Birth, and the foreign Minister to whom he shall belong, being entered in the Secretary’s Office.
Q. What Penalty is there upon Recusants for absenting from Church, by 23 Eliz. c. 1?
A. Twenty Pounds for every Month, for every Person above Sixteen, not having lawful Impediment, besides the Penalty of one Shilling for every Sunday and Holiday. But, N. B. All Offences against this Act, ( except Treason, or Misprision of Treason ) shall be discharged upon Submission ad Conformity.
Q. What Civil Disabilities and Burdens do Recusants lie under ?
A. 3 Jac. I. c. 5. No Recusant Convict shall practice Law, nor Physick, nor be a Judge ot Officer in any Court, nor Officer by Sea or Land, upon Pain to forfeit 100l. Nor any who is married to a Recusant, except Husband, Children, and Servants repair to the Church, and once in every Month at least receive the Sacrament, at the Times by Law appointed ; and every Recusant shall be disabled, as a Person excommunicate, till he shall conform, only he may sue for such Lands as are not to be seized for Recusancy.
A Recusant married otherwise than according to the Church of England, by a Minister lawfully authorized, if a Man, he shall be disabled to have Freehold and if a Woman, to claim Dower, or Jointure, or Goods.
Every Recusant causing his Child to be baptized otherwise than according to the Church of England, or deferring it a Month, shall forfeit 100l. and being buried otherwise than according to the Ecclesiastical Laws, not being excommunicated, his Executors shall forfeit 20l. No Recusant shall be Executor, Administrator, or Guardian, but the next of Kin who conforms.
Papists shall be double taxed. They are also disabled to inherit and to purchase. They are also to be presented. Nor are they allow’d to remove five Miles from their Dwelling without Licence from the King and Council ; nor to come to Court, without special Command, upon Pain of 100l. nor live within ten Miles of London, except Tradesmen, who have no other Dwelling.
All Armour and Ammunition shall be taken from them by Warrant from four Justices, and kept at the Cost of the Recusants. By 1 Will. and Mar. c. 15. Two Justices may impower any Person to search for Arms in their Houses, and seize them for the Use of the Crown. Nor shall a Recusant keep a Horse of above 5l. Value, upon Pain to be seized, and forfeited to the King.
Any two Justices, knowing or suspecting a Papist, maytender the Declaration 30 Car. II. c. 1.
They are bound to find Horse and Arms for the Militia ; but the Lieutenants of the Counties shall do it for them, and charge it upon the Estate.
By 27 Eliz. c. 2. No Parent or Guardian shall send Children beyond Sea without Licence, except for Merchandize, or to serve as Mariners, upon Pain to forfeit 100l. to the Use of them who shall discover and convict them ; nor to be educated in any Popish College or Seminary, under the like Penalty : And by 1 Jac. I. c. 4. the Person or Persons so passing beyond Sea, or sent, shall be disabled to inherit, purchase, or enjoy any Estate real or Personal within this Realm ; and by 3 Car. I. c. 2. shall be disabled to sue, to be Executor or Legatee, or to bear any Office within the Realm, unless they shall conform in six Months after their Return.
Q. What Security have we against Popery in Respect of the Prince ?
A. By 1 Will. and Mar. c. 2. all and every Person and Persons that is, are, or shall be reconciled to, or shall hold Communion with the See or Church of Rome, or shall profess the Popish Religion, or shall marry a Papist, shall be excluded, and be for ever unable to inherit, possess, or enjoy the Crown and Government of this Realm, &c. And in all and every such Case the People shall be absolved, and are hereby absolved from their Allegiance, and the said Crown and Government shall descend to the next Protestant Heir. And every King and Queen of this Realm shall on the first Day of the Meeting of the first Parliament next after his or her coming to the Crown, sitting in the Throne in the House of Peers, in the Presence of the Lords and Commons therein assembled, or at his or her Coronation, which shall first happen, make, subscribe, and audibly repeat the Declaration of 30 Car. II cap. 1.
If under the Age of twelve Years at the Time of Succession, he shall do the same as soon as he is of that Age.
And lastly, By 12, 13 Will. III. cap. 2. amongst other Articles for the securing our Religion, Laws, and Liberties, ’tis expressly enacted, That whosoever shall hereafter come to the Possession of this Crown, shall join in Communion with the Church of England, as by Law established.
Q. What Penalty is incurred by refusing the Oaths of Allegiance and Supremacy, when lawfully tendered ?
A. Any Person so refusing, shall be liable to all the Penalties of a Popish Recusant Convict ; nor shall he be allowed to vote for any Member of Pdrliament, unless, instead of the Oaths, he has made and subscribed the Declaration of Fidelity.
Q. What is the Oath of Abjuration ?
A. An Oath provided 13, 14 Will. III. cap. 6. for the further Security of the Protestant Succession ; which Oath, with the necessary Alterations, at present stands thus :
I A.B. do truly and sincerely acknowledge, profess, testify, and declare in my Conscience, before God and the World, that our Sovereign Lord George II. is lawful and rightful King of this Realm, and of all other his Majesty’s Dominions and Countries thereunto belonging. And I do solemnly and sincerely declare, That I do believe in my Conscience, that the Person pretended to be the Prince of Wales during the Life of the late King James, and since his Decease pretending to be, and taking upon himself the Style and Title of King of England, by the Name of James the Third, hath not any Right or Title whatsoever to the Crown of this Realm, or any other the Dominions thereto belonging ; and I do renounce, refuse, and abjure any Allegiance or Obedience to him. And I do swear, that I will bear Faith and true Allegiance to his Majesty King Gorge II and him will defend, to te utmost of my Power, against all traiterous Conspiracies and Attempts whatsever, which shall be made against his Person, Crown, or Dignity : And I will do my utmost Endeavour to disclose and make known to his said Majesty, and his Successors, all Treasons and traiterous Conspiracies which I shall know to be against him, or any of them ; and I do faithfully promise, to the utmost of my Power, to support, maintain, and defend the Succession of the Crown, against him the said James, and all other Persons whatsoever, as the same by an Act, intitled, An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject, is, and stands limited to the Princess Sophia, Electress and Dutchess Dowager of Hanover, and the Heirs of her Body, being Protestants. And all these Things I do plainly and sincerely acknowledge, and swear, according to these express Words by me spoken, and according to the plain and common Sense and Understanding of the same Words ; without any Equivocation, mental Evasion, or secret Reservation whatsoever : And I do make this Recognition, Acknowledgment, Abjuration, Renunciation, and Promise, heartily, willingly, and truly, upon the true Faith of a Christian. And so help me God.
Q. Who are obliged, and upon what Penalty, to take this Oath of Abjuration ?
Tit. XXVIII.
What is meant by Lands given in Mortmain ?
A. Lands given to Religious, or other, whereby the Services due from them are withdrawn ; and so the Lands may be said to come into a dead-Hand, for that a dead-Hand yieldeth no Service.
Q. What Restraint is there upon such Gifts ?
A. By 7 Ed. I. No Person, Religious or other, whatsoever, ( i.e. any other whatsoever of like Quality of Being, as a Body Politick or Corporate, Ecclesiastical or Lay, Sole or Aggregate ) shall buy or sell any Lands or Tenements, or under Colour of Gift or Lease, or by Reason of any other Title, receive the same, or by any other Craft or Engine shall presume to appropriate to himself, whereby such Lands may in anywise come into Mort-main, under Pain of Forfeiture of the same to the Chief Lord, or to the Lord next immediate, or to the King.
Q. How far are the Restraints upon Lands in Mort-main taken off ?
A. By 7, 8 Will. III. c. 37. The King may license any Person, or Bodies Politick or Corporate, to alien in Mort-main, or to purchase or take in Mort-main, in Perpetuity or otherwise, any Lands, Tenements, or Hereditaments whatsoever, of whomsoever the same are holden : And such Lands, &c. so aliened, or purchased, or licensed, shall not be subject to any Forfeiture, by Reason of such Alienation or Purchase.
Q. Is the King’s Licence necessary in all Cases of this Kind ?
A. Impropriations may be given to the Church, without Licence of Mort-main ; and also Lands and Tenements may be received, or purchased, for the Parson, and his Successors, where the Benefice is not worth 100l. per Ann. clear. Also the Corporation for the Bounty of Queen Anne may take and purchase ; without Licence or Writ of ad quod Damnum, provided that Persons under Age, of non-sane Memory, and Women-covert may not make the Gift.
Q. Does the Statute of 23 Hen. VIII. c. 10. against Feoffments, &c. to the Use of Parish Churches, &c. extend to take away good and charitable Uses ?
A. It has been resolved, that it does not. To whieh my Lord Coke adds, “That any Man may give Lands, Tenements, or Hereditaments to any Person or Persons, and their Heirs, for finding a Preacher, Maintenance of a School, Relief and Comfort of maimed Soldiers, Sustenance of poor People, Reparation of Churches, Highways, Bridges, or Causeways, discharging of poor Inhabitants of Towns from common Charges, for making of a Stock for poor Labourers in Husbandry, and poor Apprentices, and for the Marriage of poor Virgins, or for any other charitable Uses : And it is good Policy, upon every such Feoffment or Estate, to reserve a small Rent to the Feoffor and his Heirs, or to express some such Ccnsideration of some small Sum, that so the Feoffees may be seized to their own Use, and not to the Use of the Feoffor by which it is out of Doubt, that this Statute cannot make void the Use.
Tit. XXIX.
WHAT Care does the Law take of the Possessions and Revenues of Bishopricks ?
A. They are provided for by several Statutes : And first, that the Temporalties of Bishops shall not be seized into the King’s Hands, without true and just Cause, according to the Laws of the Land, and Judgment thereupon given.
Q. Is a Contempt upon a Writ of Quare non Admisit a lawful Cause ?
A. No, that is only to be punished by a reasonable Fine. 25 Edw. III. c. 6.
Q. What Care does the Law take to prevent Alienations of Bishopricks ?
A. All Grants of Lands, &c. belonging to any Arehbishoprick or Bishoprick, that shall be made to any Person or Persons, except for twenty-one Years, or three Lives, and with the accustom’d reserv’d Rent, or more, shall be utterly void. 1 Eliz. c. 19.
Q. What becomes of the Temporalties of Bishopricks in the Time of Vacation ?
A. They are to be kept in the King’s Hands, and to be deliver’d to the Sucessor.
If a Prelate sue in Right of his Church and die before Judgment —— ?
A. The Successor shall have Action ; and so for Goods taken in the Time of the Predecessor, and no Action begun.
Q. If any intrude in the Time of Vacation —— ?
A. The Successor shall have a Writ to recover Seisin, and Damages shall be awarded.
Tit. XXX.
What Remedy has a Successor to recover Lands belonging to his Church, which were alien’d by his Predecessor ?
A. A Writ of Juris Utrum : And by 13 Eliz. c. 10. to prevent Alienations of Church-Lands, &c. ’tis enacted, That no Grant thereof, other than for twenty-one Years, or three Lives, with the accustom’d reserv’d Rent, or more, to be paid yearly, during the said Term of three Lives, shall be made, upon Pain of being utterly void.
Q. What if the Incumbent die, having at his proper Costs and Charges before his Death caus’d any of his Glebe-Land to be manur’d and sown — ?
A. He may devise the Profits of the Corn so sown by Will ; but if another is inducted before Severance, the Executor shall have the Corn, but the Successor the Tithe of it. The same is true, in Case of Deprivation or Resignation after Glebe sown : The Successor shall have the Tithe, if the Corn was not sever’d at the Time of his coming in ; otherwise if sever’d, as in the Case of Death.
Q. What is the Reason why the Successor shall have the Tithes, and not the Executor ?
A. Because, altho’ the Executor represents the Testator, yet he cannot represent him as Parson ; inasmuch as another Parson, was inducted : But if the Parson dies after Severance from the Ground, and before the Corn is carried off, in that Case the Successor shall have no Tithe ; because tho’ it was not set out, yet a Right to it was vested in the deceased Parson by Severance from the Ground.
Q. How soon may the Successor enter upon the Parsonage-House, and Glebe not sown ?
A. Upon one Month’s Warning after his Induction —— ; deducting for the Glebe in his Rent, what it is reasonably worth to the Lessee. 28 Hen. VIII. c. 11.
Q. What does the Canon provide for the Information of an Incumbent, as to what belongs to him ?
A. A Terrier and true Note of all the Glebes, Lands, Meadows, Gardens, Orchards, Houses, Stocks, Implements, Tenements, and Portions of Tithes, lying out of their Parishes, to be taken by View of honest Men in every Parish, by the Appointment of the Bishop, whereof the Minister to be one, is to be laid up in the Bishop’s Registry, for a perpetual Memory thereof. See the Appendix, No III.
Q. Is every Church of Common Right intitled to House and Glebe ?
A. Yes : And the Assignment of them was of such absolute Necessity, that without them no Church could be regularly consecrated.
Q. What is the Meaning of that Maxim in the Common Law, That the Fee-Simple of the Glebe is in Abeyance ?
A. That is, it is only in the Remembrance, Intendment, and Consideration of the Law : The Reason of which is, that no Act of the Predecessor should make a Discontinuance ; to take away the Entry of the Successor, and to drive him to a real Action, whereby he should be destitute of a Maintenance in the mean Time.
Q. When is the Freehold of the Glebe in the Parson ?
A. After Induction, but with there Limitations : 1. That he may not alienate, no, not with Consent of Patron and Ordinary ; nor, 2. may he exchange, tho’ with the like Consent ; ( yet we find a Decree in Chancery, to confirm an Exchange of Glebe fur other Lands ) nor, 3. may he commit Waste.
Q. Are Glebe Lands, being in the Hands of the Parson, to pay Tithe to the Vicar ?
A. No, tho’ the Vicar is endowed of the Tithes of all Lands in the Parish ; nor, being in the Hands of the Vicar, shall they pay Tithe to the Parson, according to the known Maxim of the Canon Law, Ecclesia Decimas Ecclesiae solvere non debet, and Clerici a Clericis Decimas non Exigant.
Q. But what if the Glebe be Leased out —— ?
A. Then it is liable to pay Tithes respectively as other Lands are.
Q. If a Parson or Vicar is Lessor of Glebe, shall he have Tithes of his Lessee ?
A. Yes ; And if a Parson let his Recory and reserves his Glebe, he shall pay Tithes to his Lessee.
Q. If a Parson after having sown his Glebe leases the Land, or sells the Corn, shall he have Tithe when the Lessee or Vendee severs the Corn ?
A. Yes ; because before Severance they cannot pass without express Words.
Q. Can the Vicar have the small Tithes of the Glebe Lands of the Parsonage, when in the Hands of the Appropriator ?
A. Yes, if he be specially endow’d of them.
Q. What are the General Rules of Law concerning the Nature and Kinds of Tithes ?
A. 1. Tithes in their Nature are a Possession merely Spiritual. 2. They are a Possession Incorporeal, by Reason of which a Rent cannot be reserved out of them, nor can they pass without Deed, because there can be no Livery. 3. Of common Right they belong to the Church within the Precint of whose Parish they arise : But 4thly, Notwithstanding this common Right, one Parson may prescribe to have Tithes within the Parish of another, and those are called, Portions of Tithes.
Q. What Account is given of the Original of Portions of Tithes ?
A. They arose from the Patron’s Power to appropriate the Tithes, or Part of them, of his Advowson, to any other Church, till the Council of Lateran 1179, under Alexander III. and also, from the Lord of a Manor’s having Part of his Estate lying in another Parish, before the Restraints of voluntary Appropriations ; and from the Occasional Grants that might be made by Parson, Patron, and Ordinary, since the said Restraints were laid.
Q. To whom belong Tithes Extra-parochial, or within the Compass of no certain Parish ?
A. By the Law of England, all Extraparochial Tithes, as, in several Forests, &c. belong to the Crown, and may be granted by the King to whom he will. By the Canon Law they were to be disposed of at the Discretion of the Bishop.
Q. What is the common Division of Tithes, with Regard to their several Kinds or Natures ?
A. They are divided into Praedial, Mixt, and Personal.
Q. What are Praedial Tithes ?
A. Such as arise merely and immediately from the Ground, as Grain of all sorts, Hay, Wood, Fruits, Herbs, &c.
Q. What are Mixt Tithes ?
A. Those which arise not immediately from the Ground, but from Things nourish’d by the Ground as Colts, Calves, Lambs, Milk, Cheese, Eggs, Chickens, &c. All which, according to the ancient Division ( which was only into Praedial and Personal ) do fall under the Denomination of Praedial Tithes, and are therefore called by some, Praedial Tithes Mediate, by Way of Opposition to Tithes properly Praedial, and called by them Praedial Tithes Immediate.
Q. What are Personal Tithes ?
A. Such as arise from the Labour and Industry of Man ; being the tenth Part of the clear Gain, after Charges deducted.
Q. What is the Division of Tithes with regard to Value ?
A. Into Great and Small.
Q. What are accounted great Tithes ?
A. Corn, Hay, and Wood.
Q. What are small Tithes ?
A. The Pradial Tithes of other Kinds, together with those which are called Mixt, and Personal.
Q. May this Division be altered ?
A. We are told in the Books of Common Law, it may, 1. By Custom ; which will make Wood a small Tithe under the general Words, Minutae Decimae, in the Endowment of a Vicar. 2. By Quantity ; which will turn a small Tithe into a great, viz. If the Parish is generally sown with it. 3. By Change of Place ; which makes the same Things ( as Hops ) in Gardens, small Tithes ; in Fields, great Tithes : But in some Cases this seems to have been contradidted.
Q. Are Mills liable to pay Tithe ?
A. All Corn-Mills, not erected before 9 Edw. II. Anno 1315, are Titheable. And to prove that a Mill is not within the Statute, it must appear, that the Building was before the Memory of Man, and that the Mill never did pay Tithe ; upon which two Proofs, the Law will presume it to be such an ancient Mill, as is not within this Statute : But if the Proof fail in either Point, it shall be liable to pay Tithes.
Q. If a Wind-mill or Corn-mill is built upon Lands for which a Modus is paid, shall the Modus for the Land be also for the Mill ?
A. So it hath been held, and that no Tithe shall be paid ; which seems strange, considering that every Modus, when made, was settled in such Manner, as to be a Recompence for the Tithe, viz. the Tithe then in Being, and of the same Nature ; not for Tithe not in Being, and of a different Nature.
Q. Are Fulling-mills, Tin-mills, Lead-mills, &c. Titheable ?
A. Tithe is not due of such, otherwise than by Custom ; and where it is so due, it is to be paid as a merely Personal Tithe.
Q. What are the Rules of Canon and Common Law, concerning Things Titheable or not Titheable ?
A. 1. Tithes shall be paid only of such Things as increase every Year, and once in the Year : Ex Annuatis renovantibus simul & semel. But yet by Custom Tithes may be paid of Things that do not increase. 2. Tithes shall not be paid of such Things as are ferae Naturae ; as Deer, Conies, &c. This Maxim is contrary to the ancient Law of the Church of England ; and it appears from several ancient Appropriations, that Fish and Pigeons, and Rabbits, were then Titheable. But by this new Rule, if Fish be Titheable, it must be by Custom ; and if Pigeons are Titheable, it must be because they are sold, and not eaten in the House ; though it is certain, that selling, or eating at Home, makes them neither more nor less ferae Naturae ; and whatever Ferity either Pigeons or Rabbits might have in their Natures, they are become so Tame, as to be the Property of particular Persons, and the Stealers of them punishable as Felons. Add to this, that by the feeding and maintaining of Deer and Conies, not only large Quantities of Land may be employed, and the Profits of them in great measure taken both from the Parson and the Publick, but great Profit may also accrue thereby to the Owners of such Lands.
Q. What Statute is there for the Payment of Personal Tithes ?
A. By 2, 3 Edw. VI. c. 13. Every Person exercising Merchandizes, Bargaining, and Selling, Cloathing, Handicraft, or other Art or Faculty, being such kind of Persons, and in such Places, as heretofore within there forty Years have accustomably used to pay such Personal Tithes, or of Right ought to pay, ( other than such as has been common Day-Labourers ) shall yearly, at, or before Easter, pay for his personal Tithes, the tenth Part of his clear Gains ; his Charges and Expences, according to his Estate, Condition or Degree, allowed and deducted.
Q. How stands the general Practice in this respect ?
A. There is an universal Substraction of Privy or Personal Tithes which wants to be remedied : And a Remedy for this in the Year 1562, amongst other Matters to be remedied in the Church was proposed, by rating of rome Certainty upon every Person, by Contribution, or otherwise to a reasonable Sum ; or else to appoint a Rate according to the Rent of their Houses, as it is in London ; i.e. for every Pound-Rent, to the Parson or Vicar 2s. 9 d. And this is no more than was intended to be made a Law in the Reign of Edw. VI.
Q. How many Ways may there be a Discharge from Tithe ?
A. Lands may be discharged from the Payment of Tithes, 1. By Statute. 2. By Composition Real. 3. By Custom or Prescription.
Q. What Lands are discharged by Statute ?
A. All Lands belonging to Monasteries, Priories, &c. which before their Dissolution, were discharged by Bull, Order, or Composition, and which were dissolved by 31 Hen. VIII. cap. 13. a Special Clause being provided for their Discharge, which otherwise would have expired, as the Discharges of those did which were dissolved 27 Hen. VIII. and 1 Edw. VI. for want of such Clause.
Q. What else is a Discharge by Virtue of that Clause ?
A. Perpetual Unity of Possession of the Lands, and of the Rectory in the same Hands, which is a new Discharge which was not before at the Common Law. For if the Monastery, &c. was seized of the Lands and Rectory simul & semel, Time out of Mind, and paid no Tithes within the Memory of Man, those Lands shall now be exempted from Payment of Tithes, by Perpetual Unity of Possession.
Q. What other Lands are discharged by Statute ?
A. Barren Ground, converted into Arable and Meadow, shall not pay Tithes for seven Years, 2 Edw. VI. c. 13. but if it was Tithe-able before, it shall continue to pay the same as before.
Q. What is Composition Real ?
A. Where the Incumbent, together with the Patron and Ordinary, make Agreement by Deed, executed under their Hands and Seals, that certain Lands shall be discharged from the Payment of Tithes in Specie, in Consideration of a Recompence to the Incumbent, either in Money, or in Lands to him and his Successors for ever, or in some other Thing for their Beneht and Advantage.
Q. Can any real Compositions be made now ?
A. No, no more than Alienations ; for by 1 and 13 Eliz. all Grants are expressly made void, whlich are not according to the Tenor of these Statutes.
Q. What is the only Caution then that is to be given in this Case, to preserve the Revenues of the Church from Diminution ?
A. Against the Growth of Modus’s ; which, however supposed by the Law to be founded in Real Compositions, have chiely grown, and it is to be feared, are still growing, from the Inadvertency of the Clergy, acquiescing in the self same Agreements from one Successor to another.
Q. What is the Difference between Custom and Prescription ?
A. Custom is that which gives Right to a Province, Country, Hundred, City or Town, and is common to all within the respective Limits ; in pleading of which it is alledged, that in such a County, &c. there is, and Time out of Memory hath been, such a Custom used and approved therein. Prescription is that which gives a Right to some particular Person, with respect to some particular House, Farm, or other Thing ; in pleading of which it is alledged, That all they whose Estate he hath in such Land, have, Time out of Mind, paid so much yearly, &c. in full Satisfaction of all Tithes arising on those Lands.
Q. Of how many Kinds are Custom and Prescription ?
A. They are either De non Decimando, or De Modo Decimandi.
Q. What is the General Rule concerning Custom and Prescription De non Decimando ?
A. None but Spiritual Persons and Corporations, being by Common Law capable of Tithes in Pernancy, ( i.e. Tithes taken in kind, ) may so prescribe, as to be wholly freed from Tithes without any Recompence or Consideration for them.
Q. What Exceptions are there to this Rule ?
A. 1. The King, as Mixta Persona, may prescribe de non Decimando ; by the same Reason that, as such, he is capable of Tithes. 2. The Lessee, Tenant at Will, and Copy-holder of a Spiritual Person, though a Layman, shall in this Respect enjoy the Exemption of the Lessor, &c. who is supposed to reap the Benefit of it, in reserving the greater Rents, by Reason of such Exemption. 3. A County, or Part of a County, may well plead a Custom de non Decimando, in respect of this or that particular Tithe ; but not absolutely in respect of all Tithe ; nor can a single Parish prescribe de non decimando for particular Tithes.
Q. What is Modus Decimandi ?
A. When Lands, Tenements, or Hereditaments, have been given to the Parson and his Successors, or an annual certain Sum or other Profit, always, Time out of Mind, to the Parson and his Successors, in full Satisfaction and Discharge of all the Tithes in Kind of such a Place.
Q. What Qualifications are required to make a good Custom or Prescription ?
A. These four ; 1. The Modus must be something for the Benefit and Interest of the Parson. 2. The Modus must not be one Tithe in Consideration of another ; as, not Tithes of other Kinds, to be discharged of Tithes of dry Cattle ; not so much for every Cow and Calf, for Tithe of Herbage. 3. It must be something, in kind, different from the Thing that is due ; provided the Things are de Jure Titheable, and not by Custom only. 4. It must be something certain and durable at least, though not so valuable.
Q. Can a Modus, though founded on good Consideration, be discharged ?
A. Yes, several Ways. 1. Where Land is converted to other Uses ; so when the Prescription is for Hay and Grass, specially in so many Acres of Land, if dte Land is converted into a Hop Garden, or Tillage, the Prescription is gone. 2. By the Alteration or the Destruction of the Thing, for which the Modus was paid ; as, where two Fulling-mills were made under the same Roof, and turned into a Corn-mill ; where also there was one Pair of Stones in a Mill, and another Pair was added ; and where the Water-course was altered by the Owner, and the Mill was pulled down, and re-edified upon it ; In all these Cases it was adjudged that the Modus was gone. 3. By Non-payment of the Consideration, or Payment of Tithes in Kind, for so long a Time as to destroy the Possibility of making Proof that such Custom or Prescription was. But an Interruption for some short Time only will not discharge it.
Q. What Things are Titheable and not Titheable, and what is the Manner of paying Tithe ?
A. The Manner of Payment of Tithes is for the most Part governed by the Custom of every Parish ; what Things are Titheable, and what not, will appear more particularly from what follows. First, we will inquire of great Tithes, Corn, Hay, and Wood.
Q. How is Corn or Grain Titheable ? As Wheat, Barley, Beans, &c.
A. ’Tis commonly Tithed by the tenth Shock, Sheaf, or Cock, where the Custom of the Place is not otherwise.
Q. Is Tithe due of Rakings ?
A. No, being left for the Poor, and being also the Remains of Corn, for which Tithe hath been paid ; but then they must be Rakings minus voluntarie dispersae.
Q. Is Tithe due of Stubble ?
A. No ; because it is no more than Part of the Stalk upon which the Corn grew.
Q. What Tithe is due of Hay ?
A. Every tenth Cock of Hay ; for the Thing, which the ancient Constitution of the Church of England makes payable to the Parson, is Decimae de Foenis, and not de Gramine. Though in several Cases it hath been held, that the Owner is not bound to make it into Hay, unless the Custom of the Place oblige him to it : But that of common Right, and Custom apart, it is sufficient if it be set into Grass Cocks, and, so Tithed, be left wholly to the Care of the Parson.
Q. May the Parson make his Hay upon the Land on which it grew ?
A. Yes, of common Right, and may for that End pass over the Parishioner’s Ground by the common Path.
Q. What are the general Rules concerning After-math ( or second Moath ) and After-pasture ?
A. De jure Tithes are payable for the After-math without a special Prescription to discharge it. After-pasture pays only by Custom.
Q. What is Agistment, vulgarly called Joisting or Jousting ?
A. Agistment ( from the French, Giser [jacere] or Gister [Stabulari] a Word proper to Deer, ( signifies to take in, and feed the Cattle of a Stranger in the King’s Forests ; in a large Signification, it is the feeding of Cattle upon Pasture Lands, which pay no other Tithes.
Q. What is the general Rule concerning Agistment ?
A. It is to be paid for Beasts agisted for Hire, or for dry Cattle, which are depastured to be sold ; but not for Cattle reared for the Plough or Pail, nor for Cattle expended in the House.
Q. What Exceptions are there to this Rule ?
A. Two ; 1. If the Cattle depastured for the Plough, are not for ploughing the Land in the same Parish where they are fed, but in another, Tithe shall be paid for them. 2. The Discharge of the Cattle for the Plough shall only continue while they are fed and nourished for that Use, and the Parson hath the Benefit of their Labour.
Q. How is Tithe to be paid, where profitable and unprofitable Cattle feed together ?
A. Tithe shall be paid in kind for the Profitable, and Agistment for the Unprofitable.
Q. In what Manner is Agistment to be paid ?
A. Where no special Custom is for Guest-Cattle taken in, the tenth Part of the Money received is payable ; if for the Owner’s Cattle, then the Tithe shall be according to the Value of the Land, after the Rate of two Shillings in the Pound : But by Custom or Prescription, such Tithe may be made in other Manner, as by the Acre, and for all Manner of Cattle together.
Q. If Tithe of Agistment be denied, where, and against whom may Suit be commenced ?
A. In
A. In the Spiritual Court, against the Occupier of the Land ; or in Case they are Guest-Cattle, either against the Occupier of the Land, or Owner of the Cattle : And no Prohibition will lie.
Q. Are Head-Lands Titheable ?
A. Anno 29 Eliz. it was judged a good Discharge from the Tithe of Hay upon the Head-land, that the Owner reaped, bound, and shocked the Corn, on Supposition that the tenth Ridge is the Thing due for Tithe, and that the Labour of the Owner about the Corn ( to which he was not bound ) was a good Foundation of such Discharge.
And 10 Car. 1. a Custom for Head-Lands sown with Corn to be discharged of Tithes, because fed with Plough-Cattle, or mowed and cut for that Purpose, was adjudged a good Custom.
Q. Is Wood titheable ?
A. Wood is titheable, because it is of annual Growth ; tho’ the Tithe is of annual Payment : And it has been resolved, that, de Jure per Legem Terrae, no Person can be discharged of Tithe of Wood, even tho’ it be for Fuel and Hedging ; and that therefore it hath been usual in Prohibitions to alledge Hearth-Penny or the like, for the Discharge. Some hold it is titheable by Custom only.
Q. What sort of Tithe doth Wood yield ?
A. Praedial. And in common Opinion it passes for a great Tithe : Tho’ in Controversies between Parson and Vicar, where the Endowment is lost, this Point is determined by Prescription ; and in Case the Endowment remains, and doth not expressly mention Wood, and yet that Tithe hath been usually taken by the Vicar, the Law will ( by favourable Construction ) either graft it upon some general Expression in the Endowment, or else presume that there might be a subsequent Augmentation of the Endowment of the Vicar, by which he became intitled to Tithe-Wood.
Q. How many Ways may Wood be discharged of Tithe ?
A. With Regard to the Age it is of, the Use it is put to, and the Place of its Growth.
Q. What is discharged with Regard to its Age ?
A. Timber-Trees, of or above twenty Years Growth, by the Statute of Sylva Caedua, 45 Ed. II. c. 2.
Q. What Wood is intended under the Name of Timber-Trees ?
A. Wood fit for building of Houses, and Ships such as Oak, Elm, and Ash : And it hath also been adjudg’d, that Beech, Asp-Trees, Cherry-Trees, Haste, Holly, Willow, where Timber is not to be had, or is very scarce, are included within the Statute.
Q. Are Timber-Trees free only as to the Trunk, or Timber ?
A. Yes : They are free also as to the Bark, Root, and Germens, which grow upon the ancient Stock, of what Age soever.
Q. Are Loppings titheable ?
A. Not of Timber-Trees, the Branches being privileged by the Body : But whether Branches, if the Trees are lopped before twenty Years, shall not always pay for Loppings after twenty Years, inasmuch as at the first lopping the Tree was not privileged, hath been made a Question.
Q. Are Dotards, or old decay’d Trees, exempt from Tithe ?
A. Yes ; having been once privileged, they shall be always so.
Q. What Wood is titheable, tho’ above twenty Years Growth ?
A. Alders, Birch, Broom, unless to burn ; Furzes, if sold ; Maple.
Q. What Wood is discharged of Tithe, in respect to the Use it is put to ?
A. Wood for the Owner’s Firing, Hedgeing, and Fencing of the Premisses, within the same Parish, hath been adjudged Tithe-free ; but this to be alledged, not absolutely, that per legem Terrae Wood so applied shall nor pay Tithe : But sub modo, that the Parson hath some Consideration for it ; or at least, that the House is for Maintenance of Husbandry, by reason of which the Parson hath Uberiores Decimas.
Q. What is discharged with Regard to the Place of its Growth ?
A. Wood in the Wild of Kent, and the Wild of Sussex ; wherein a Prescription to be discharged of Tithe-Wood hath been often held to be good, upon a Supposition of what has been often said, but never prov’d, viz. That Tithe of Wood in general is due by Custom only.
Q. In what Manner is Wood to be tithed ?
A. In many Places they fell out the tenth Acre of Wood standing : And so it may be by the Pole or Perch, or by the tenth Faggot or Billet, according as the Custom of the Place hath been.
Q. Is Under-wood titheable ?
A. Yes, and the Tithe shall be paid of Under-wood digged up by the Roots. If Under-wood is sold standing, the Tithe shall be paid by the Buyer.
Q. Shall Nurseries pay Tithes ?
A. Yes : It hath been held so, where the Owner dug them up, and made Profit of them, and sold them in another Parish.
Q. By whom shall the Tithe of Nurseries be paid ?
A. If the Owner sells them, and pulls them up himself, he shall pay the Tithe ; but if he sell them particularly to another, the Vendee shall pay the Tithe.
Q. What Tithe is due of Cattle ?
A. The tenth Colt, Calf, Lamb, and Pig, shall be paid : Or, by Custom, One in Seven ; and if under, a Half-penny, or what Custom shall direct, for each. A Custom of paying the tenth Part of the Price for every Calf that is sold, is a good Custom.
Q. May the Parson, when there are under seven Calves or Lambs in one Year, choose whether he will proceed in that Manner, or let them run on till one becomes due the ensuing Year ?
A. The Canon Law leaves it to his Choice ; but the Common Law will not allow it, because Tithe must be paid annually : A Custom to pay the tenth Part of the Price of every Calf that is sold, is a good Custom.
Q. To whom is the Tithe of Cattle feeding upon Wastes, or Commons, where the Bounds of Parishes are uncertain, to be paid ?
A. To the Incumbent of that Parish in which the Owner of the Cattle dwells, unless limited otherwise by Custom or Prescription.
Q. What if a Man prescribe to pay one Half-penny for every Lamb that he shall sell before the first Day of May, and ( to deceive the Parson ) shall sell all his Lambs the Day before May-Day — ?
A. This is fraudulent, and the Custom shall be no Discharge.
Q. How is the Tithe of Milk to be paid ?
A. Every tenth Meal, to the Parson in whose Parish the Cows yielding Milk Depasture for the Time, at the Church-Porch, or else at the House of the Parson or Vicar ; but where Tithe is paid of Cheese, it shall not be paid of Milk, & vice versa : The same Rules hold in the Milk of Goats, and Ewes, where it is preserved.
Q. What Sort of Tithe is Wool ?
A. A mixt, small Tithe ; and it is Tithe-able de Jure when clipped, but by Prescription it may be set out altogether at another Time : The Parson shall have the tenth Pound, or, by Custom, the tenth Fleece, ( or one in seven, if under ) the Owner choosing two.
Q. Is Tithe-Wooll due of Sheep kill’d and spent in the House, or for rotten Sheep which die ?
A. Yes : And a Consultation is provided in the Register in there Words, De decima Lanae provenientis de Ovibus eorundem Parochianorumn infra eandem Parochiam occisis & morientibus a Festo S. Michaelis, usque ad Festum Paschae singulis annis ; but some hold, that if Sheep be shorn, and die of the Rot, or other Disease, before the Easter following, the Wooll is not titheable, unless the Parson can prescribe for it.
Q. Is Tithe to be paid of Locks of Wooll casually lost, or Neck-Wooll, cut off to preserve the Sheep from Vermin ?
A. No, except in Case of Contrivance and Fraud.
Q. If a Man pay Tithe of Lambs at Mark’s-Tide, and afterwards at Midsummer shear the Residue, or the nine Parts, shall he pay Tithe of Wooll of the Residue ?
A. Yes, because there is a new Increase.
Q. Is any thing to be paid if there be under ten Pounds of Wooll ?
A. Yes, a reasonable Consideration ; because, being due de Jure, a Modus in non decimando cannot be allowed in any Case.
Q. Is there any Limitation of the strict Right of Tithe-Wooll ?
A. It hath been limited by an Allowance of the two following Modus’s as good, viz. 1. The tenth Part of the Wooll of all the Sheep which he had before Lady-Day, in Satisfaction of all the Wooll of such Sheep as should be brought into the Parish after Lady-Day. 2. To be discharged of Tithe of those he should sell but two Days before the Shearing, in Consideration that Time out of Mind he hath paid Tithe-Wooll of those which he bought but two Days before the Shearing.
Q. How shall the Tithe be proportioned between the several Incumbents, in case Sheep are removed from one Parish to another, between the Times of Shearing ?
A. The Rule of the English Canon-Law is, that the Tithe of Wooll shall be paid to the Incumbent, in whose Parish they have remained constantly from the Time of Shearing till Martinmas, though they be afterwards removed : That if they be removed, within the said Time, from Parish to Parish, each Incumbent, in whose Parish they shall remain at least thirty Days, shall have his Proportion of the Wooll ; but, if they be removed from Parish to Parish after the said Time, ( that is, from Martinmas, to the Time of Shearing ) a reasonable Agistment shall be paid by the Owners for the Time they stay. The Rules of the Temporal Law in this Matter seem not to be easily reconciled, some allowing Agistment, others holding the contrary.
Q. Is a Custom to pay Tithe in Kind for Sheep if they continue in the Parish all the Year, and an Half-penny for every one that was sold before the Time of Sheering, a good Custom ?
A. No ; it has been adjudged an unreasonable Custom, as evidently defeating the Parson of his just Right.
Q. What is the Time of Payment of Lambs, Kids, Calves, Pigs, &c ?
A. It is regularly when they are so old, that they may be weaned, and live without the Dam, unless the Custom of the Place confine the Payment to any certain Time or Age.
Q. If several Mens Sheep depasture together in one Flock, or under one Shepherd, shall they be tithed together ?
A. No, every Owner shall pay his Tithe of them himself.
Q. But if the Head of a Family have his Flock mixed with his Childrens Sheep, which are under his Tuition, and he takes the Profit of them — ?
A. In that Case they shall be tithed together.
Q. Shall Tithe be paid of Cattle which are turned off to be fatted, and are grazed ?
A. Yes ; Tithes of Agistment shall be paid, since they are no way beneficial to the Parson, in any other Tithes : And so of Cows, after they become barren, and are fatted for Sale. The like is to be said of Horses : That while they are kept for the Use of Husbandry, no Tithe shall be paid ; but if kept for Sale, or to carry Coals, or for the like Offices, which are profitable to the Owner, and unprofitable to the Parson, Tithe shall be paid for them.
Q. What Tithe is due of Fowls, as Hens, Geese, Ducks, Turkeys ?
A. Either in Eggs, or in the Young, according to Custom ; but Turkeys have been declared Ferae Naturae, ( for what Reason is not said ) and consequently not titheable.
Q. What other Things are reckoned to be ferae naturae ?
A. Deer, Conies, Doves, Bees, Fish, Pheasants, Partridge, which are not titheable, unless by Custom ; only of Pigeons it hath been resolved, that Tithe shall be paid, if sold, but not of those that are spent in the House : And of Bees, not the tenth Swarm shall be paid, but the tenth Measure of Honey, and the tenth Pound of Wax.
Q. When a Park has paid a Modus, and is dis-park’d, does that Modus continue ; or shall it be discharged, and Tithe paid in kind ?
Q. If the Modus was a certain Consideration in Money for all the Tithes of such a Park, such Modus shall hold, notwithstanding it be dis-parked ; but if the Modus was for the Deer and Herbage of such a Park the Modus is gone upon disparking : In like manner, if the Modus hath been to pay a Buck and a Doe for all the Tithes of such a Park, and the Park is dis-park’d, the Modus shall continue, and the Owner may give a Buck and a Doe out of another Park : But if it was to pay the Shoulder of every Deer, or expressly a Buck, or a Doe out of the same Park, the Modus is gone.
Q. Are Lands in a Forest to pay Tithes ?
A. As Lands which are in no Parish pay Tithes to the Crown, so Lands lying within the Precinct of a Forest, tho’ also in a Parish, if in the Hands of the King, do pay no Tithes : But if a Forest be disafforested, and within a Parish, it shall pay Tithes ; because the not paying Tithes, in the Hands of the King, was an Immunity for that Time only, while it remained a Place for Deer, and was in the Hands of a Person who might prescribe de non decimando.
Q. What Kind of Tithe is Fish ? And how is it to be paid ?
A. This Tithe hath been declared in its Nature to be personal, and therefore not to be taken in Kind, or by every tenth Fish ; but by a just Consideration in Money, deductis expensis : But by Custom Fish may be payable in Kind, tho’ less than the Tenth will do, because not de jure titheable.
Q. How is Tithe of Fruit to be paid ?
A. Tithe of Apples, Pears, Plumbs, Cherries, &c. is to be paid in Kind, when gathered.
Q. If the Soil of an Orchard be sown with any Sort of Grain — ?
A. The Parson shall have Tithes of the Fruit-Trees, and of the Grain, for they be of several and distinct Kinds.
Q. May Tithe in Kind be demanded of all Garden-Herbs and Plants, as Parsly, Sage, Cabbage, Turnips, Saffron, &c ?
A. Yes ; but ordinarily some certain Consideration is paid for these Things, either by Custom, or by Agreement with the Parson.
Q. Is the Tithe of Crabs, Mast, &c. to be paid ?
A. Yes, when the same are gathered ; and Satisfaction is to be given, if eaten with Swine on the Ground : But in a Case, reported by my Lord Keeper Littleton, it is held, that no Tithes are to be paid for Acorns, which fall from the Trees, and are eaten up by the Swine.
Q. What Tithe is due of Flax and Hemp ?
A. Every Acre of Hemp or Flax shall pay five Shillings ; and so proportionably, before the same is carried off the Ground, unless on Lands discharged of Tithes.
Q. What Tithe is due of Hops ?
A. Hops are great Tithes, but in Orchards and Gardens small Tithes. There can be no Modus for Hops, because of a late Date ; but they may be included in a Modus pro decimis minutis : Whether they are titheable by the tenth Pole, or by Measure, is questioned ; tho’ it hath been said that they are titheable by the Pole, and the tenth Part may be set out before they are dried.
Q. What Things are there of which no Tithe is to be paid ?
A. 1. Things of the Substance of the Earth, and not annual, as Gravel, Coals, Chalk, Brick, Clay, Heath, Turf, Salt, Slate, Tile, Mines of Metals of all Kinds, unless by Custom. 2. Non Renovantia, as Houses of Habitation, unless there has been Time out of Mind a Modus decimandi : And in London there are particular Laws concerning the Tithe of Houses ; and Roots and Stubbs of Wood cut down, if they are grubbed up before any new Branches spring out.
Q. Is Tithe due of Woad ?
A. Yes : And growing in the Nature of an Herb, the Tithe thereof is a small Tithe ; and goes to the Vicar, where he is to have the small Tithes.
Q. What are the Rules of Common and Canon Law concerning the setting out and carrying away Tithes ?
A. 1. Every Person is bound of common Right to cut down and set out the Tithes of his Land. 2. The Time and Manner of setting out Tithes, whether in Sheafs, or Cocks, or Shocks, depends upon the particular Custom of every Place, which is to be followed. 3. Tithes being set out, and sever’d from the nine Parts, become Lay-Chattels ; therefore if they are carried away, the Remedy is in the Temporal Courts, unless carried away by the Owner. 4. The Care of the Tithes, after Severance, as to spoiling, &c. rests upon the Parson, and not upon the Owner of the Land. 5. The Parson hath a Right to carry away his Tithes ; and if that be obstruced, he shall have Remedy in the Spiritual Court.
Q. What Care is taken of the due setting out of Tithes, that it may be done faithfully, and without Fraud ?
A. The Laws of the Church intitle the Parson to have Notice given him. And by the Statute 2 Ed. VI. cap. 13. §2. it shall be lawful for every Party to whom any Tithes ought to be paid, or his Deputy, or his Servant, to see the said Tithes to be set forth, and severed from the nine Parts, and the same quietly to take and carry away.
Q. May the Parson set forth the Tithes himself, without the Licence and Consent of the Owner ?
A. No : If he shall of his own Head tithe the Corn, Hay, &c. and carry it away, he is a Trespasser, and an Action will lie against him for it.
Q. After the Tithes are set forth, may the Parson spread abroad, dry, and stack his Corn, Hay, &c. in any convenient Place upon the Ground where the same grew, till ’tis fit to be carried ?
A. Yes ; but he must not exceed a convenient and necessary Time for the doing it, to the Damage of the Parishioner.
Q. By what Way may the Parson carry away his Tithes ?
A. Either by the common Way, or any such Way as the Owner of the Land useth to carry away his nine Parts.
Q. To whom of Right belongs the Cognisance of Tithes ?
A. To the Spiritual Courts. And there seems to be an ample Recognition bs this Right 1 Ric. II. c. 13, 14. where ’tis said, “That the People of holy Church pursuing in the Spiritual Court for their Tithes, and their other Things, which of Right ought, and of old Times were wont to pertain to the same Spiritual Court.”
Q. Can a Modus or a Custom be tried in the Spiritual Court ?
A. The Modus is to be sued for in the Ecclesiastical Court, as well as the Tithe : And if it be allowed between the Parties, they shall proceed there ; but if the Custom be denied, it mutt be tried at the Common Law : And if it be found for the Custom, then a Consultation must go ; otherwise, the Prohibition standeth.
Q. What Assistance have the Spiritual Courts in order to enforce their Decisions ?
A. In Case of Contempt, Contumacy, or Disobedience before the Ordinary, or other competent Judge, the secular Power shall assist him ; and any two Justices of the Peace ( one Quorum ) may commit the Offender to Ward, till he find Security to obey the Ecclesiastical Court. 27 Hen. VIII. c. 20.
Q. What if there is an Appeal from the Sentence of the Spiritual Court ?
A. By 32 Hen. VIII. c. 7. Upon every such Appeal Costs shall be adjudged against the Appellant, and Surety taken of the other to restore them, if the Judgment be reversed.
Q. What Difference is there between suing for Tithe in the Temporal and in the Spiritual Court ?
A. By 2, 3 Ed. VI. c. 13. No Person shall take or carry away the Tithe, till set out, or agreed for with the Parson, or other Proprietor thereof, upon Pain of Forfeiture of treble Value ; to be recovered in the Temporal Court, by Action of Debt, ( the Forfeiture to the Party grieved : ) If Suit be in the Spiritual Court, double Value shall be recovered, besides Costs of Suit.
Q. Is nothing to be recovered in the Temporal Court besides the treble Value ?
A. No ; neither the Tithes themselves, nor any Satisfaction for them : Nor could either Damages or Costs be recovered with the treble Value, till Costs were particularly given by Statute 8 Will. III c. 11. where the single Value shall not exceed twenty Nobles, i.e. 6l. 13s. 4 d.
Q. How must the Action be laid upon this Statute of Ed. VI ?
A. Not for the Substracion of Tithes, but for a Contempt of the Statute, in not setting them out, &c. And being a Contempt, it dies with the Person.
Q. May an Executor have an Action upon this Statute for Tithes not set forth during the Life of the Testator ?
A. Yes.
Q. Recite that Part of the Statute which relates to Suit in the Ecclesiastical Court.
A. If any Person carry away his Corn, or Hay, or his other * Predial Tithes, before the Tithe thereof be set forth, or willingly withdraw his Tithes of the same, or of such other Things, whereof predial Tithes ought to be paid, or do stop, or let the Parson, Vicar, Proprietary, Owner, or other their Deputies, or Farmers, to View, take, and carry away their Tithes, as is abovesaid, by reason whereof the said Tithe or Tenth is lost, impair’d or hurt, that then, upon due Proof thereof made before the Spiritual Judge, the Party so carrying away, withdrawing, letting, or stopping, shall pay the double Value of the Tenth or Tithe so taken, lost, withdrawn, or carried away, over and besides the Costs, Charges, and Expences in the Suit : The same to be recovered before the Ecclesiastical Judge, according to the King’s Ecclesiastical Laws.
* N. B. Predial Tithes : This Statute extends to no other, as to giving double and treble Value.Q. Ought the double Value, together with the Statute, to be expressly mention’d in the Libel ?
A. Yes, otherwise Prohibition will go : But then the Libel must be so ordered, as not to be grounded directly upon the Statute for more than the double Value ; for if the single Damages ( i.e. the Value of the Tithes ) be also grounded upon it, this will be interpreted a Suing in the Spiritual Court for treble Value, and a Prohibition will go.
Q. What is the Reason why only the double Value is to be recovered in the Ecclesiastical Court, whereas the treble is to be recovered in the Temporal ?
A. Because in the Ecclesiastical Court he may recover the Tithes themselves, which in the Temporal Court he could not do ; and therefore the whole Value recovered in the Ecclesiastical Court, is equivalent to the treble Forfeiture at Common Law.
Q. What if the Party condemned disobey without Appeal ?
A. The Judge shall excommunicate him, and require the Writ de Excommunicato capiendo. 2, 3 Ed. VI. c. 13.
Q. What is to be done by a Person suing * Prohibition ?
* Of the Nature of Prohibition and Consultation, see hereafter, Tit. XLV.A. Any Person suing for a Prohibition in the King’s Courts, before such Prohibition granted to him, shall deliver to the Hands of some of the Justices, or Judge of the same Court, where such Party demanded Prohibition, the very true Copy of the Libel depending in the Ecclesiastical Court, concerning the Matter wherefore the Party demandeth Prohibition subscribed or marked with his own Hand ; and under the Copy of the said Libel, shall be written the Suggestion wherefore the Party so demandeth Prohibition : The Truth of which ( or at least so much of it as is sufficient whereon to ground a Prohibition, though the Suggestion be not shewn to be strictly and wholly true ) not being proved in six Kalendar-Months, a Consultation shall be granted, and double Costs and Damages given.
Q. What Remedy is there against Quakers refusing to pay Tithes, or Church-Rates, 7, 8 Will. III. c. 34?
A. Upon Complaint, they may be conven’d before two Justices ; who shall examine and determine in all Cases of or under 10l. and levy by Distress, in Case of Refusal to pay. By 1 Geo. c. 6. this Act is extended to the Recovery of any Right or Stipend belonging to the Church, &c. or to any Church-Rates, with Costs not exceeding 10s.
Q. May the Person aggrieved Appeal ?
A. Yes, to the Quarter-Sessions, where, if Judgment be continued, Costs shall be given against the Appellant.
Q. May the Cause be removed by Certiorari or other Writ ?
A. No, unless the Title of Tithes be in Question.
Q. When was the Act made for the more easy Recovery of small Tithes ?
A. 7 & 8 Will. III. c. 6. for three Years ; afterwards continued for seven Years, and 3 & 4 Ann. c. 18. it was made perpetual.
Q. What is the Tenor of that Act ?
A. Small Tithes of or under the Value of 40s. being with-held twenty Days after Demand, upon Complaint made in Writing to two Justices, neither of which shall be interested, they shall summon the Party in Writing, and determine and adjudge the Case in Writing, with Costs not exceeding ten Shillings ; and if the Sum is not paid in ten Days, it shall be levied by Distress, by the Constable, having a Warrant from the Justices, and after three Days detaining them, the Goods shall be sold.
Q. Have Justices a Power to administer an Oath in these Cases ?
A. Yes.
Q. What is included in this Act under the Notion of small Tithes ?
A. All and singular the Tithes commonly called Small Tithes, and Compositions, and Agreements, for the same, with all Offerings, Oblations, and Obventions.
Q. In what Time must Complaint be made ?
A. Within two Years after the Tithes become due.
Q. Can there be any Appeal from the Justices ?
A. Yes, to the Quarter-Sessions, whose Judgment shall be final, unless the Title of Tithes be in Question.
Q. What if Prescription, Modus, or Composition be insisted upon ?
A. Security must be given to pay Costs, if the Modus be not allowed, and the Justices shall forbear to give any Judgment in the Matter, and the Person complaining may be at Liberty to prosecute in any other Court.
Q. But may he not prosecute in any other Court after Judgment given ?
A. Every Judgment given by the Justices shall be inrolled at the Quarter-Sessions, which Inrollment shall be a Bar from other Remedy.
Q. What if a Person remove out of the County, before the Money adjudged is paid ?
A. It shall, upon Certificate of the Justices, or one of them, who gave the Judgment, be levied by Warrant from any Justice, where he is an Inhabitant.
Q. Are they intitled to the Benefit of this Act who have begun their Suit in the Exchequer, or Ecclesiastical Court ?
A. No.
Q. What are Oblations ?
A. What may be properly called Oblations, are those which Lindwood describes, Accedentes ad Solennia Nubentium, Purificationes Mulierum, Morttorum Exequias & alias solennitates divinas & populares, solebant aliquid certum offerre, utputa ipsorum quilibet, Denarium, obolum, vel quadrantem, aliamve rem qualemcunque. From which customary Offerings, the Fees or Duties now payable on these Occasions did probably spring, and may be thought a Kind of Composition for them.
Q. When were the usual Days of Offering ?
A. Christmas, Easter, Whitsuntide, and the Feast of the Dedication of the Parish Church.
Q. What are those which are commonly call Easter Offerings ?
A. It has been said, that what we call Easter Offerings, viz. so much certain to be paid by every Communicant, was a Composition for Personal Tithes, but since the same Statute, 2 & 3 Edw. VI. c. 13. which speaks of Offerings at Easter, makes Provision for the Payment of Personal Tithes, under a sepirate Head ; the Ecclesiastical Dues, which by the Rubrick, every Parishioner is to pay the Minister at Easter, seem rather to be, partly such Duties or Oblations, as were not immediately annexed to any of the foremention’d Offices, and partly a Composition for the holy Loaf ; which the Communicants were to bring and offer, and which is therefore to be answered at Easter, because at that Festival every Person was indispensably bound to Communicate.
Q. What other Kind of Profits belong to the Church ?
A. Pensions or Annuities, Portions of Tithes, Corrodies, Indemnities, Synodies, and Proxies *.
* Of Proxies or Procurations, See Tit. XLII.Q. How are these to be recovered ?
A. Being of a Spiritual Nature, they are to be recovered in the Spiritual Court, even though they have been claimed upon the Foot of Prescription.
Q. What are Indemnities ?
A. Pensions paid to the Bishops, in Consideration of discharging Churches, united or appropriated, from the Payment of Procurations.
Q. What are Pensions ?
A. Payments due out of Religious Lands dissolved, or by Virtue of an Ordinance made by the Ordinary, upon a Controversy of Tithes, or the like, ( as in the Endowment of a Vicar where one shall enjoy the Tithes, and pay to another a Pension for them. )
Q. What Care was taken at the Dissolution of the Religious Houses, that the Pensions, and other Duties paid by them to Archbishops, and Bishops, and other Ecclesiastical Persons, should be continued ?
A. By 34, 35 Hen. VIII. c. 19. They are allowed to make such Process against the Occupiers of the Land, as they might have done before the Dissolution, either in the Spiritual Court or at Common Law ; and the Defendant being convict, they shall have Costs and Damages.
Q. In Cases where any of those Duties were due from any Religious House dissolved, and the King did of new Incorporat a Society, and give them the whole Scite of such Religious House, with all Manors, &c. belonging to it, from whom are such Duties payable ?
A. From the new Corporation.
Q. If any Incumbent leave Arrearages of a Pension, shall the Successor be answerable ?
A. Yes, because the Church itself is charged, into whatsoever Hand it comes.
Q. What is a Corrody ?
A. An Allowance of Meat and Drink, Cloathing, Lodging, &c. for necessary Sustenance, which might be assigned by every Founder of a Religious House, in the same House, to any Person that he should appoint. Corrodies are turned into Pensions and Money at this Day. It appears that Corrodies belonged to Bishops from Monasteries, 34, 35 Hen. VIII. c. 19.
Q. Where are Tithes generally sued for of any considerable Value ?
A. In the Courts of Equity, by English Bill, and for the most Part in the Exchequer ; but not upon the Statute for Treble or Double Value, for there can be no Suit in Equity for the Recovery of Double or Treble Value. But you may have the single Value with Costs, which unless the Value of the Tithes be very great, is as good as treble Value without Costs.
Q. What are Mortuaries ?
A. Mortuaries, ( or Corse-prefents, so called, beeause it was usual to bring the Mortuary along with the Corpse when it came to be buried ) were given for Recompence of Personal Tithes and Offerings, not paid through Ignorance, Negligence, or Fraud of the Parishioner as the best, or second-best, &c.
They are due by Custom only, and are now settled to be paid in Money.
Q. What is the Law at present with Regard to Mortuaries ?
A. Where Mortuaries are due by Custom, he that dieth possessed of moveable Goods, to the Value of forty Pounds, and upwards, his Debts first paid, pays ten Shillings ; if to the Value of thirty Pounds and under forty Shillings, six Shillings and eight Pence ; if to the Value of six Pounds, thirteen Shillings and four Pence ; and under thirty Pounds, three Shillings and four Pence. Goods under six Pounds thirteen Shillings, yield no Mortuary. 21 Hen. VIII. c. 6.
Q. Who are exempted from paying Mortuaries ?
A. No Mortuary is to be paid by any Feme covert, Child, Person not keeeping House, Wayfaring-man, one not residing in the Place where he happens to die, for his Mortuary shall be paid in the Place where he had his most Abode.
Q. What is Appropriation ?
A. Appropriation, ( because the Profits of a Benefice are held in Propriety ) is an annexing a Benefice to the proper and perpetual Use of a Spiritual Person, or Corporation, ( being Patrons of the Advowson in Fee ) and their Successors.
Q. When did this Practice first begin ?
A. This Evil had been growing in the Nation chiefly from the Time of the Norman Conquest, when the Norman Lords withdrew the Tithes of their Manors from the Parochial Clergy ( who were English, and, as such, hated by them ) and endowed with them the Monasteries which they built for the Norman Monks. In other Nations it began more early.
Q. What was the Mischievous Consequence of this ?
A. The Monks took little or no Care to make tolerable Provision for those whon attended the Cures, till 15 Rich. II. c. 6. upon the earnest Petition of the Commons in Parliament, it was enacted, That in every Licence from that Time to be made, in the Chancery, of the Appropriation of any Parish Church, Provision should be made expresly for a proper Distribution to the Poor, and a competent Endowment for the Vicar of it. And afterwards by 4 Hen. IV. c. 12. That in every Church appropriate, henceforth a Secular Person should be ordained Vicar perpetual, Canonically Institute, and Induct, and Covenably endowed by Discretion of the Ordinary.
Q. Are then Appropriations after that Time, to be declared now invalid, where no Endowment can be found ?
A. No ; because where a Benefice hath been ever reputed and taken to be Appropriate, and a Vicar presented, instituted and inducted as a Vicar, the Law will presume that the Vicarage was lawfully endowed ; for that Omnia praesumuntur solenniter esse facta.
Q. What is the Foundation of Stipendiary Curacies, where the Impropriators are bound to to provide Divine Service, but may do it by a Curate not instituted, but only licensed by the Bishop ?
A. This happens where the Benefice was given ad Mensam Monachorum, and so, not appropriated in the common Form, but granted by Way of Union, pleno jure ; and because, in that Case, it was served by a Monk of their own Body, and who was removeable at their own Pleasure ; and because the Acts of Dissolution gave the Lands to the King in such Manner and Form as the Monks held them, they who derive from the Crown, have reckoned themselves under no Restraint to present a Vicar to the Bishop for Institution, but to provide Divine Service, as the Monks did, by a Licensed Curate. But though the Canon Law is clear, that such Benefices as were united Mensae Monachorum, &c. might be served by Monks without Institution, yet the Law also was, that, in Case such Cures were supplied by Seculars, they must have Institution ; and there being now no Supply but by Seculars, it seems to follow, that by Law no Benefices can be now served by Stipendiary Curates without Institution. But the received Practtice is otherwise.
Q. What was judged the fittest Time for the Appropriation of a Church ?
A. When the Church to be appropriated was vacant.
Q. Was the Person appropriating, of Necessity a Spiritual Person, so as no other might do it ?
A. Yes ; for Appropriation is in Effect an Institution ; with this Difference only, that it is Perpetual.
Q. Could Appropriations be made to other than Spiritual Persons ?
A. No ; nor to Spiritual Persons, but as Spiritual Bodies, Politick or Corporate, possessed of the Inheritance of the Advowson to them and their Successors. For the immediate Consequence of an Appropriation, is perpetual Incumbency.
Q. What Consent was necessary to the making of an Appropriation ?
A. The Consent of the King, and of the Patron, and of the Ordinary who made it.
Q. Can a Church Appropriate become Disappropriate ?
A. Yes ; and that, not only by the Dissolution of the Corporation, whereunto the Appropriation was first granted, but also by Presentment ; namely, when he who is Parson appropriate, being also Patron of the Vicarage, doth present the Vicar to the Parsonage, this is a Re-union of the Vicarage and Parsonage, and the Presentee shall have all the Tithes, and other Profits belonging to the Church.
Q. Do Tithes or Profits of any kind belong to the Vicar de Jure ?
A. No ; only by Endowment or Prescription ; there were no Vicarages at Common Law.
Q. When did Vicarages first begin ?
A. When the Books of Common Law speak of the Beginning of Vicarages, some fix it in the Reign of Hen. III. others in the Reign of King John ; but there are Reasons to believe the Practice more ancient.
Q. Does the Vicarage by Endowment become a Benefice distinct from the Parsonage ?
A. Yes ; and as he is endowed with separate Revenues, and is now enabled by the Law to recover his Temporal Rights, without Aid of the Parson or Patron, so hath he the whole Cure of Souls transferred to him, by Institution from the Bishop.
Q. But do not both the Parson and Vicar in some Places receive Institution to the same Church ?
A. Yes, as it is in the Case of Sine-Cures.
Q. What was the Original of Sine-Cures ?
A. The Recor, with proper Consent, had Power to intitle a Vicar in his Church, to officiate under him, and this was often done ; by which Means two Persons were instituted to the same Church, and both to the Cure of Souls, and both did actually officiate. But the Rectors having been long excused from Residence, are, in common Opinion, discharged from the Cure of Souls, which is the Reason Of the Name, and the Cure is said in the Law Books, to be in them Habitualiter only, and Actualiter in the Vicar.
Q. But did you not say they were both instituted to the Cure of Souls ?
A. Yes ; and, in Strictness of Law, and with Regard to the Original Institution, the Cure is Actualiter in the Rector, as much as it is in the Vicar.
Q. In what Case may the Cure of Souls be properly said to be Habitualiter in one, and Actualiter in another ?
A. Where a Recor or Vicar is Non-resident, and the Ordinary appoints a Curate, and during such Non-residency transfers upon him the Cure of Souls. For here the Discharge, in the Nature of it, is only Temporary.
Q. Does the Parson, by making the Endowment, acquire the Patronage of the Vicarage ?
A. Yes, the Advowson of common Right is appendant to the Rectory ; but Parishioners may prescribe for the Choice of a Vicar, and the Advowson may be appendant to a Manor.
Q. How might the Act of Endowment by the Bishop be made ?
A. Either in the Act of Appropriation, or by a subsequent Act, and a separate Instrument.
Q. What Use may be made of this Observation ?
A. That the Clergy, in seeking for Endowments in the Registries of Bishops, or the Courts of Augmentation, may not neglect the Acts of Appropriation, nor despair of finding, the Endowment, because they find not a separate Act, or Instrument of Endowment.
Q. How are Words in an Endowment, being doubtful, to be interpreted ?
A. By Practice, and to the Advantage of the Vicar. As where it appears to have been the Custom of the Vicar to have Tithe-Hay, Garba, tho’ in the common Acceptation it relates to Corn, shall be judged sufficient to extend to Tithe Hay ; and Alteragia, to Tithe-Wood : And, in Favour of the Vicar, it has been resolved, that the Word Manor should signify the Precincts of a Manor ; and that he should have Tithes of the Freeholders, as well as Demesnes of the Manor, though he was endowed to have a third Part Omnium Bladorum decimarum of such a Manor, and tho’ the Free-holders ( strictly speaking ) are not Parcel of the Manor as such.
Q. Can the first Endowment of Vicars be prescribed against ?
A. No : Original Endowments are of such Authority as no Time can destroy.
Q. Suppose a Vicar hath used, Time out of Mind, or for a long Time, to take particular Tithes or Profits, and the original Endowment is produced, that they are not there, shall he lose them in that Case ?
A. No : Because, inasmuch as every Bishop had an indisputable Right to augment Vicarages, as there was Occasion ; and this, whether such Right was reserved in the Endowment or not, the Law will presume, that this Addition was by Way of Augmentation.
Q. How is the Loss of the original Endowment supplied ?
A. By Prescription ; i.e. if the Vicar hath enjoy’d this or that particular Tithe by constant Usage, the Law will prelume that he was legally endow’d with it.
Q. Might the Endowment of a Vicarage be appropriated ?
A. With this only Exception, that it must not be to the Parson.
Q. Might Vicarages, tho’ duly created, and of long Continuance, be dissolved ?
A. Yes, where the Appropriation had been made before, 15 Ric. II. and 4 Hen. IV. or where the Appropriation remained in a spiritual Hand, which was capable of the Cure.
Q. Is the King’s Licence necessary for the dissolving a Vicarage into a Parsonage ?
A. Into a Parsonage Presentative, ’tis not necessary ; into a Parsonage Appropriatory, it is, because he thereby loses his Title of Lapse.
Q. Shall the not presenting for a long Time be a Discontinuance of the Vicarage ?
A. No, something ought to be shewn of the Act of Re-uniting.
Q. Hath the Ordinary a Right to oblige Impropriators to augment Vicarages ?
A. It is agreed on all Hands, that every Ordinary hath such Power over spiritual Impropriators ; namely, to assign a Congrua Portio to the Vicar, and enforce the Allowance of it, by Sequestration and other Ecclesiastical Censures. But the Books of Common Law are peremptory, that since the Dissolution of the Monasteries, Impropriations are become meer Lay-Fees, or Inheritances of a meer temporal Nature : From whence they infer, that therefore all such Possessions are intirely freed from spiritual Jurisdiction ; and particularly, that the Ordinary hath no Power to make Augmentation of a Vicarage, out of any Retory which is in the Hands of a Lay-Impropriator.
Q. What was done upon the Restoration of King Charles II. for the Augmentation of Vicarages ?
A. The King sent a Letter to the Bishops, requiring them to employ their Authority and Power, which by Law belonged to them as Ordinaries, for the Augmentations of Vicarages and Stipends of Curates. And the Number and Largeness of Fines rendering the Design most practicable at that Time, divers Archbishops, Bishops, Deans and Chapters, and other Ecclesiastical Persons, upon their renewing of Leases of Rectories, or Tithes impropriate, made divers Reservations beyond the ancient Rent, intended for the Augmentation of the said Endowments and Stipends which were confirmed and made perpetual to them, and the Vicars and Curates adjudged to be in actual Possession of them, by a particular Statute for that Purpose. 29 Car. II c. 8.
Q. Were future Augmentations to be confirmed by that Act ?
A. Yes ; provided that no future Augmentation was to be confirmed by it, which shall exceed one Moiety of the clear yearly Value of the Rectory.
Q. What Care was taken for the better making appear the Certainty of such Augmentations ?
A. ’Tis enacted, by the Statute aforesaid, That all Augmentations shall be registered in a Book of Parchment, to be kept for that Purpose which, being examined and attested by the respective Archbishop, Bishop, &c. to be : a true Copy of the original Lease or Grant, and that the Augmentation in the same was intended for such Use, shall be as a Record, and an attested Copy of it good Evidence in the Law : And where Augmentations have not been entered in the Lease, they shall be entered as Agreements in the said Book, and shall be good and available in Law.
Tit. XXXI.
What Restraints were there by Law upon the Leasing of spiritual Promotions ?
A. The Law did not think fit to trust a single Person, or sole Corporation, with the Disposition of Estates held in Right of the Church ; and therefore, by Way of Restraint, appointed the Assent and Confirmation of others, without which their Grants should not be valid against the Successor.
Q. By whom were the Leases to be confirmed ?
A. All Leases of Archbishops, and Bishops, by the Dean and Chapter ; all Leases of Archdeacons, Prebendaries, and the like, by Bishop, Dean, and Chapter ; and all Leases of Parsons and Vicars, by Patron and Ordinary. And without such Confirmation, they expir’d with the Lessor ; and could not bind the Successor, till the Statute 22 Hen. VIII. c. 28. commonly called the Enabling Statute : By which all such sole Corporations, except Parsons and Vicars, were enabled to let Leases for twenty-one Years, or three Lives, without Confirmation ; provided that in such Leases, the Conditions and Limitations of the said Act were punctually observed.
Q. What were those Conditions and Limitations ?
A. 1. The Lease must be by Deed indented ; therefore this Act does not extend to Copy-hold Lands, which in their own Nature are demiseable only by Copy. 2. It must begin from the Day of the making thereof. 3. If there be an old Lease in Being, it must be absolutely ( not conditionally ) surrender’d or expir’d within a Year after the making of the new. 4. It must be for three Lives, ( all wearing out together ) or twenty-one Years ; either the one or the other, and not both, or a double Lease. 5. As it must not exceed three Lives, or twenty-one Years, from the Day of making it, so it may be for fewer Lives, or a lesser Term. 6. It must be of Lands and Tenements Corporeal, out of which a Rent may be reserved ; and not out of Incorporeal Things, or Things that lie in Grant, as Advowsons, Tithes, Fairs, Franchises, &c. 7. It must be of Lands and Tenements which have been most commonly letten ( by one that was seized of the Inheritance ) to Farm, or occupied by Farmers, by the Space of twenty Years next before the Lease was made ; so that if it was lett at eleven Years at one or several Times, within those twenty Years, it is sufficient. 8. The accustomed Rent, ( or more ) which hath been paid for twenty Years before, mull be reserved. 9. It must not be without Impeachment of Waste. If these Limitations were observed, Leases might be made without Confirmation ; but if not, Confirmation remained necessary as before : And with Confirmation, long Leases might be made by sole Corporations, without being limited at all to the Conditions of this Statute, till the Disabling Acts made in the Time of Queen Elizabeth.
Q. What are those Disabling Acts ?
A. First, Whereas Bishops, notwithstanding the Statute 32 Hen. VIII. might continue to make such long Leases as they had usually done, in Case those Leases were Confirm’d ; By Statute 1 Eliz. c. 19. they are absolutely prohibited from granting any Leases, but for twenty-one Years, or three Lives, though with Confirmation.
Secondly, Whereas Corporations aggregate might always let long Leases without any Confirmation ; and so might sole Corporations with Confirmation, none but Bishops being restrained by the fore-mention’d Statute ; by Statute 13 Eliz. 6. 10. all other Corporations, sole and aggregate, are put under the same Restraints that Bishops were ; as Masters and Fellows of Colleges, Deans and Chapters of Cathedral or Collegiate Churches, Chapels where there are no Deans, Masters of Hospitals and their Brethren, Dean, Archdeacon, Prebendary, Parson, Vicar, &c.
Thirdly, Whereas sole Corporations might make concurrent Leases, without Confirmamation, where the old Lease was to expire within a Year, and, at any Time with Confirmation. By 18 Eliz. c. 11. no concurrent Lease shall be good, made by any sole Corporation, Bishops only excepted, unless the old Lease be expired within three Years.
Q. Of what Effect then is Confirmation at this Time ?
A. It is of real Effect only to two Sorts of sole Corporations ; namely, 1. To Parsons and Vicars, who being specially excepted out of the enabling Act, cannot, nor never could, bind the Successors without it ; and, 2. To Bishops, who not being included under the Restraint 18 Eliz. c. 11. against concurrent Leases ; may fill, as at Common Law they might, let such Leases, at any Time, with Confirmation.
Q. What concurrent Leases are good ?
A. Bishops may make concurrent Leases either according to Statute 32 Hen. VIII without Confirmation, where the old Lease is to expire within a Year ; or with Confirmation at any Time according to the Course of the Common Law. But new Leases made by others shall be void, if the old Lease be not expired or surrendered, or ended within three Years.
Q. If a Parson or Vicar makes a Lease for three Lives, or twenty-one Years, of Lands accustomably letten, reserving the accustomed Rent, shall it be good against their Successors ?
A. Not unless it be confirm’d by Patron and Ordinary. The common People have a Notion that a Parson or Vicar may make a Lease for three Years, and bind their Successors by it, without Confirmation, but it is void by their Deaths.
Q. What Caution is necessary upon this Account in drawing up the Leases of Parsons and Vicars, which are confirmed ?
A. If they be drawn up for a Term of Years absolutely, without saying, if the Parson so long live, and all so long continue Parson, and the Parson dies, or resigns, or is depriv’d, before the Term expires, the Lessee may recover Damages, in an Action of Covenant against the Executors of the Parson, for not enjoying his Term ; but if those Clauses be added, he is safe.
Q. Can a Bishop erect new Offices at Pleasure, and assign Salaries to the Officers, and then make Grants to bind his Successor ?
A. No ; the Statute 1 Eliz. c. 19. hath been in Equity and Intention, extended to a Prohibition of such Grants, though not directly included in the Terms of the Act. He can only grant such as have been ancient and necessary.
Q. But may he not augment the Fee or Salary belonging to an ancient Office ?
A. No ; the whole Grant is void, as well for the ancient Fee, as the Overplus, unless the ancient and new Fee are as several Grants, in several Sentences ; in that Case the Grant is good for the Office and ancient Fee, and void only for the New.
Q. May he grant Offices of Service and Necessity for Life ?
A. Yes, but for one Life only, not for two or more Lives, unless by Custom, where the Patent hath usually been for two or more Lives, and had been so granted before the Disabling Statute, 1 Eliz. c. 19.
Q. Can a Bishop make a Grant of an Office in Reversion, i.e. to have and enjoy such Office after the Death of the present Grantee for Life ?
A. Yes, upon the Foot of Custom only, and where there are particular Instances of such Grants before the said Disabling Statute ; or very near it, after it, if no Instances appear to the contrary, upon a Presumption that they followed the like Precedents, though now lost.
Q. What is necessary, to the End that unquestonable Grants of ancient established Offices may be good against the Successor ?
A. They must in the first Place be Grants of the Office singly ; for two Offices, which have been usually granted apart, cannot be granted by one Patent, though to the same Person : And in the next Place, they must be confirmed by the Dean and Chapter, though they be but for one Life, because they are Grants at Common Law, and must therefore pass as they usually did at Common Law before the Disabling Statute.
Q. Do Grants of new Offices, if of necessary Use to the Bishop, and of new Fees annexed to such Offices, bind the Successor ?
A. Yes, it has been held so.
Q. Are such Grants as are by this Statute declared utterly void, Void against the Successor, or against the Grantor also ?
A. Against the Successor. The Grantor may in many Cases be bound for his own Time. Nay, even the Grant of Things not grantable, as of the next Avoidance, or of an Annuity, or of Tithes for three Lives, shall yet bind the Bishop who makes the Grant, as hath been often determined.
Q. May not Houses belonging to Ecclesiastical Persons be Demised, notwithstanding the Statute of 13 Eliz. c. 10. for more than twenty-one Years ?
A. Yes, provided hey are not the Dwelling-Houses of such Ecclesiastical Persons, nor have Ground above ten Acres ; provided also, that no Lease shall be made of Houses in Reversion, nor without the accustomed Rent, nor for longer than forty Years, nor without charging the Lessee with the Reparation : Nor shall any Houses be aliened, without an Equivalent in Fee-Simple, 14 Eliz. c. 11.
Q. Are Bishops comprehended in this Statute ?
A. No : Nor have they Power to lett Houses, otherwise than according to 1 Eliz. nor may they make Exchanges for any recompence or Consideration.
Q. Does the Confirmation of the Bishops Leases require the Presence of the Dean ?
A. Yes ; and that he be properly Dean, and that the Chapter be Capitulariter Congregati, in one certain Place, and not in several Places, at several Times.
Q. When must Confirmation of Bishops Leases be made to be in due Time ?
A. 1. After the making of the Lease, and after an Interest is vested in the Lessee. 2. Before the Death of the Bishop who made it, otherwise it comes when no Lease is in Being.
Q. Is it the same with Respect to a Parson’s Lease ?
A. It hath been adjudged, that though it is not confirmed by the Bishop and Patron in Being, when the Lease is made, but by a succeeding Bishop and Patron, the Confirmation is well, and the Successor shall be bound.
Q. Is the Confirmation of the present Patron and Ordinary always sufficient ?
A. It hath been often laid down as a Fundamencal Rule, that a Confirmation, being in the Nature of a Charge upon the Advowson, can operate no farther in order to the binding of the Successor, than according to the Degree of Estate or Interest which the Patron hath who doth confirm ; and therefore if Tenant in Tail be Patron, the Issue in Tail should also confirm. So Coparceners of an Advowson must all join in the Confirmation, unless they have agreed to Present by Turns : And if the Patron who confirms hath granted the next Avoidance, the Clerk of such Grantee shall not be bound, without the Grantee’s joining in the Confirmation.
Q. What if the Incumbency be by Usurpation, and the Usurper and Ordinary confirm the Parson’s Lease ?
A. Such Confirmation shall not avail, but the Lease shall be defeated by the true Patron upon Recovery of his Right.
Q. How are Parsons Leases voided by Non-residence ?
A. By 13. Eliz. c. 20. No Lease is good after the Incumbent hath been absent above eighty Days in the Year, Conjunctim vel Divisim ; and the Incumbert so absent shall lose one Year’s Profit, to be distributed, by the Ordinary, among the Poor of the Parish.
Q. What Sort of Non-residence brings the Incumbent under the Penalties of this Act ?
A. That only which is voluntary ; if a Parson be absent involuntarily, by Reason of Sickness, Suspension, Inhibition, Ejectment, or other Coercion or Restraint, he is not absent within this Statute.
Q. What if a Parson has two Benefices ? may he not Demise that on which he is not ordinarily Resident ?
A. He may, but to his Curate only, that shall there serve the Cure for him but such Lease shall endure no longer than during such Curate’s Residence, without Absence above forty Days in any one Year. Ibid.
Q. What is the Purport of the Statute 18 Eliz. c. 6. for the better Maintenance of the Colleges in both Universities, &c.?
A. Every Lease of any Farm or Lands, &c. which shall be let by any College or Hall, in either University, or by the Colleges of Eaton and Winchester, unless the third Part of the old Rent at least, be reserved in Corn, to be paid in Kind ( Wheat at six Shillings and eight Pence a Quarter or under, and Malt at five Shillings a Quarter or under ) or in ready Money, according to the best Price in the respective Markets, the next Market Day before the same shall be due, shall be void. Which Corn or Money so reserved, shall be expended to the Use of the said Colleges, and not let or sold away, upon Pain of Deprivation to the Governor, and chief Rulers of the said Colleges, and all other thereto consenting.
Q. Are Leases good which are made by the Majority of any Corporation ?
A. Yes ; and every local Statute to the contrary is void. 33 Hen. VIII. c. 27.
Q. Where must Rent be demanded ?
A. At the Place where by the Lease it is appointed to be paid.
Q. When must the Demand of Rent be made ?
A. In due Time, i.e. such a convenient Space before the Sun-setting of the last Day of Payment, as the Money may be tendered and received in.
Q. If the Reservation of the Rent be at certain Feasts, with Condition, that if it happen the Rent to be behind by the Space of a Week after any Day of Payment, &c. — ?
A. In that Case the Lessor need not demand it on the Feast-Day, but the uttermost Time for the Demand is a convenient Space, as hath been said, before the last Day of the Week.
Q. How must the Demand of Rent be made with Regard to the Sum ?
A. The certain Sum, with the Time when it was due, is to be express’d ; and a Difference must be made, between the Rent then payable and demanded, and Arrears of Rent due before.
Q. May a Lease, otherwise voidable, be afirmed by a Successor for his own Time ?
A. Yes ; by Acceptance of Rent, by Distraining or bringing an Assize of Rent, after the Death of the Predecessor, and also by bringing an Action of Waste against the Lessee.
Q. Does this Rule hold in all Cases ?
A. It holds only of such Corporations as have the Fee-simple absolutely in themselves, as Bishops, Deans and Chapters, Masters and Fellows of Colleges, &c. Not of those who have only a Fee-simple Qualified, viz. Parsons, Vicars, Prebends, &c.
Q. Are their Leases then absolutely void by Death ?
A. If they be not warranted by the Statutes, and are Leases for Years, they are absolutely void by Death ; but if the Leases be for Lives, they, as Estates of Freehold, which are particularly favoured by the Law, are only voidable, and such as may be affirmed by the Acceptance of Rent, &c.
Q. If the Bailiff of a Bishop accepts Rent without Order, or the Master of a College without express Authority from the Corporation, does that affirm a voidable Lease ?
A. No ; wheresoever the Acceptance binds, whether a sole or aggregate Corporation, it must, in order to such Binding, appear to be their own Act.
Q. Does Acceptance by a Successor avail, where the Lease is absolutely and ab initio void ?
A. No ; as in a Lease of Tithes, and of other Things not Manurable, for Lives, out of which no Rent, however reserved, is recoverable.
Tit. XXXII.
Who are intitled to the Profits of Vacant Benefices ?
A. Anciently the Archbishops and Bishops were entitled to them by Custom, and the King might take the Profits of the Deanry of a Free Chapel, and the Patron of a Donative the Profits of it, during the Time of Vacation ; but by 28 Hen. VIII. cap. 11. they belong to such Person as shall be next thereunto Presented, Promoted, Instituted, Inducted or Admitted, towards Payment of the First Fruits to the King.
Q. Does Institution only give a Right to enter upon and take the Profits, as well of the Vacation, as others ?
A. Yes ; yet that alone which can give a Right to sue for them is Induction.
A. What Penalty is there upon those who shall receive the Profits of the Vacation, and refuse to restore them to the next Incumbent ?
A. They shall forfeit the treble Value ; one Half to the King, the other to the Incumbent. Ibid.
Q. What is the ordinary Way of managing the Profits of Vacation ?
A. It is, by Sequestration, granted to the Church-wardens, or some Neighbouring Clergyman, ( which seems much more proper and convenient ) who are to account to the Successor for the Profits, retaining so much as will pay the Cure during the Vacation, and the Charge of Collecing.
Q. What Allowance is to be made out of the Profits for serving the Cure ?
A. The aforesaid Statute appoints a reasonable Stipend or Salary, of which the Ordinary is the most proper and competent Judge ; and if the Successor finds himself aggrieved, he may be redressed by Appeals to the Superior Ecclesiastical Courts. But the Reasonableness or Unreasonableness of the Allowance is also become triable by Action at Law grounded upon this Statute.
Q. What if the Profits of the Vacation will not answer the Cure ?
A. The Incumbent is to pay it within fourteen Days after Possession. Ibid.
Q. What Care does the Church take to prevent Dilapidations ?
A. The Ordinary, in Case of Dilapidations, hath a Right to take Cognizance of them during the Life of the Incumbent, either by voluntary Inquisition, or upon Complaint made to him, and to enforce Reparation by the sequestring of Profits, or by Ecclesiastical Censures even to Deprivation.
Q. What is comprehended under Dilapidations ?
A. Not only decayed or ruinous Building, but Hedges, Fences, Mounds, &c. in the like Condition ; and the felling of Wood and Timber, otherwise than for Repairs, or for Fuel, hath been adjudged to be Dilapidation ; from which the Incumbent may be restrained by Prohibition during his Incumbency, or he, or his Executors prosecuted, after he ceases to be Incumbent.
Q. In what Manner is the Ordinary to proceed in Inquisition of Dilapidations ?
A. Enquiry must be made by credible Persons, Artifcers, and Clergymen, upon Oath, and in his Presence who is concerned, ( he must be cited at least ) whether the Beneficiary, if alive ; or his Executors, if he is dead : And an Estimate of the Charge being made, either by Inquisition or Composition, the Diocesan shall appoint Reparation, within a competent Term, at his Discretion.
Q. What Rule is to be observed as to the Proportion of the Profits to be sequestered ?
A. There is no certain Rule ; but it is left to the Discretion of the Ordinary, according as particular Occasions require : The general Practice is a fifth Part ; which, by several Injunctions of King Henry VIII. Edward VI and Queen Elizabeth, all Parsons, Vicars, &c. were to lay out upon their Mansions and Chancels, being in Decay, till they should be fully repaired.
Q. Where are Dilapidations to be sued for ?
A. Persons aggrieved are referred wholly to the Ecclesiastical Courts ; tho’ a Notion has been advanced, that there lies an Action upon the Case in the Temporal Courts, which seems not to be well grounded.
Q. What Remedy is there against fraudulent Deeds, to defeat the Successor of Dilapidations ?
A. The Successor shall have the same Remedy against him to whom any such fraudulent Deed is made, as if he were Executor or Administrator. 13 Eliz. c. 10.
Q. Is the last Incumbent, or his Executors, chargeable with the whole Dilapidations, in what Time soever they have grown ?
A. The Statute, in the particular Case of a fraudulent Conveyance, seems ( at first Sight ) to limit the Suit to the Dilapidations that have grown in the Time of the last Incumbent ; which, in Case his Predecessor did also leave Dilapidations, and die insolvent, cannot be known but by a regular Survey of the Defects at his first coming in, that thereby the respective Dilapidations of the two Predecessors may be distinguished : But in other Cases, the last Incumbent, or his Executors, are chargeable with the whole Dilapidations, in what Time soever they have grown.
Q. But does not this in some Cases prove a very great Hardship, particularly where a Burden of Dilapidations is left by one who died insolvent, and the Successor enjoys the Benefice but a short Time, and dies ?
A. ’Tis granted, this is a great Hardship ; but in that Case the Reformatio Legum had provided the following Mitigation, ( which may be an equitable Rule for the Ordinary to go by ) Spatium tamen Possessionis erit considerandum, quod si totum annum non Impleverit, nihil postulabitur, quantum autem anno fierit amplius, ad id AEquitas Judicis Ecclesiastici Satisfaciendi rationem accommodabit.
Q. Are Executors, who are chargeable with Dilapidations, bound to make Satisfaction for them before Debts and Legacies ?
A. Before Legacies ; but, as we are told, the Common Law prefers the Payment of Debts before Damage for Dilapidations ; tho’ the reparing of Dilapidations is in the strictest Sense a Debt to the Church ; and it seems hard that private Debts should be satisfied out of the Spoils of the Church, and the Church herself be denied the common Right of Restitution.
Q. What Care is taken, that Money recovered for Dilapidations be truly employed, in the Buildings and Reparations for which it was paid ?
A. All Sums recovered by Sentence, Composition, or otherwise, shall be so employ’d within two Years after such Receipt, upon Pain of forfeiting to the King double as much as shall be so received, and not employ’d. 14 Eliz. cap. 10.
Q. What if the Incumbent dies within that Time — ?
A. The Money shall be paid by his Executors to the Successor, and be laid out by him ( not by the Executors ) in Repairs.
Q. Is a Curate to be sued or charged in the Spiritual Court for Dilapidations ?
A. No, because, not coming in by Institution and Induction, he is not properly an Incumbent.
Tit. XXXIII.
Whence arises the Right of Advowson, or of presenting a Clerk to the Bishop, as oft as a Church becomes vacant ?
A. From Foundation, Donation, or Ground ; i.e. it was founded in the Building, or giving Land to build on, or the Endowing of such a Church.
Q. Was not the Nomination of fit Persons to officiate throughout the Diocese originally in the Bishops only ?
A. Yes : But when Lords of Manors were willing to build Churches, and to endow them with Manse and Glebe, for the Accommodation of fixed and residing Ministers, the Bishops on their Parts ( for the Encouragement of such pious Undertakings ) were content to let those Lords have the Nomination of Persons to the Churches so built and endowed by them, with Reservation to themselves of an entire Right to judge of the Fitness of the Persons so nominated ; and what was the Practice, became in Process of Time the Law of the Church.
Q. Why is this Right of presenting called Advowson ?
A. It was called Advocatio, and the Persons presenting Advocati & Patroni, because they were bound to protect and defend the Rights of their Church, and their Clerks, from Oppression and Violence.
Q. Of how many Kinds are Advowsons ?
A. Of two Kinds ; Appendant, and in Gross.
Q. What is an Advowson Appendant ?
A. A Right of Presentation, dependant upon a Manor, Lands, or Tenements ; and does pass in a Grant of the Manor, as an Incident ; without saying, with the Appendants or Appurtenances thereunto belonging.
Q. How came the Right of nominating, which at first was annexed to the Person building or endowing the Church, to become by Degrees appendant to the Manor in which it was built ?
A. Because the Endowment was supposed to be Parcel of the Manor, and the Church was built by the Lord for the Use of the Inhabitants of his Manor, and the Tithes of the Manor were also annexed to the Church ; upon all which Accounts it was most natural for the Right of Advowson, which was now become hereditary, to pass with the Manor, or with such Part of it as might at any Time be granted or aliened with the Advowson : To which, ( whether the Whole or Part ) it is therefore said to be Appendant ; that is, to the Demesnes, which are of perpetual Subsistence, but not to Rents or Services, which, ( tho’ Parcel of the Manor ) may be extinguished, and cannot therefore support such Appendancy.
Q. What is an Advowson in Gross ?
A. It is a Right subsisting by itself, belonging to a Person, and not to a Manor, Lands, &c. so that when an Advowson appendant is severed by Deed or Will, from the Corporeal Inheritance to which it was appendant, then it becomes an Advowson in Gross.
Q. How many Ways may the Right of Advowson, tho’ appendant to a Manor, be separated from it ?
A. 1. If the Manor or other Thing to which it is appendant is granted, and the Advowson excepted ; 2. If the Advowson is granted alone, without the Thing to which it was appendant : 3. If an Advowson appendant is presented to by the Patron, as an Advowson in Gross.
Q. Can a Disappendency be temporary, i.e. may the Appendency, tho’ turn’d into Gross, return ?
A. Yes. As, 1. If the Advowson is excepted in a Lease of a Manor for Life, during the Lease it is in Gross ; but when the Lease expires, it is Appendant again. 2. If the Advowson is granted for Life, and another enfeoffed of the Manor cum Pertinentiis, in such Case the Reversion of the Advowson passes, and at the Expiration of the Grant it shall be appendant. 3. If the Advowson is allotted to one Co-partner, and the Manor to another, and ( he who had the Advowson dies without Issue, it is appendant again. 4. If Tenant in Tail aliens some Part of the Manor with the Advowson, and the Alienee grants the Advowson to a Stranger ; or if a * common Person hath an Advowson appendant, and a Stranger † presents his Clerk, who is in by six Months ; in both these Cases the Advowson is made disappendant : But yet, if in the first Case the Land alien’d is recovered by Tenant in Tail, and in the second the rightful Patron recovers, the Appendancy returns.
* No Disappendency is hereby made in Churches of the King’s Presentment. † Not so, if it is a Collation.Q. Is the Right of Patronage a Temporal Inheritance ?
A. It is a Trust veiled in the Hands of the Patrons, by Consent of the Bishops, for the Good of the Church and Religion ; nor does it follow, either from the Patron’s being now vested with that Right by Common Law, or from its being annexed to a Temporal Inheritance, that it is itself a Temporal Inheritance, or ought, legally speaking, to be considered otherwise than as a Spiritual Trust ; a Trust of a Spiritual Nature, and for Spiritual Ends, resting in the same Person to whom the Temporal Inheritance doth belong.
Q. What think you of the Notion and Practice of making Merchandize of Advowsons and next Avoidances ?
A. It is not easily reconciled either to the Laws of the Church, which expressly forbid it, or to the ancient Laws of the Land, or to the Nature of Advowsons, considered ( as they certainly ought in Reason and good Conscience to be considered ) in the Nature of meer Trusts for the Benefit of Mens Souls.
Q. What Argument have you that an Advowson is not a Temporal Inheritance, nor ought legally to be considered as such ?
A. Besides that the Foundation of the Right was the Consent of the Bishop, it is a Rule in Law, that the Right or Property which the Patron hath in an Advowson will not warrant a Plea ( as it is in Temporal Property ) that he is seized in Dominico suo ut Feodo, but only in Feodo : And in a Case, where the Words of the Lease were Commodities, Profits, Emoluments, and Advantages to the Prebend belonging, it was adjudged that the Advowson could not pass by the said Words ; because all of them implied Things gainful, which ( as was added ) is contrary to the Nature of an Advowson.
Q. In what Manner may Advowson be granted ?
A. Advowson, being an Inheritance incorporeal, and not lying in manual Occupation, cannot pass by Livery, but may be granted by Deed, or by Will ; either for the Inheritance, or for the Right of one or more Turns, or for as many as shall happen within a Time limited.
Q. With what Limitations is this general Rule to be understood ?
A. With Regard to Advowsons in Gross, next Avoidances, &c. it is to be understood with there two Limitations. 1. That it extends not to Ecclesiastical Persons, of any Kind or Degree, who are seized of Advowsons in Right of their Churches ; nor to Masters and Fellows of Colleges, nor to Guardians of Hospitals, who are seized in Right of their Houses : All these being restrained ( the Bishops by 1 Eliz. and the rest by 13 Eliz. c. 10. ) from making any Grants, but of Things Corporeal, of which a Rent or annual Profit may be reserved. 2. Where the Right of granting is absolute and indisputable, yet a Grant cannot be made by a common Person whilst the Church is void, so as to be intitled thereby to such void Turn : By the King it may.
Q. May the Avoidance that shall happen next after, or the Inheritance of the Advowson, be granted when the Church is void ?
A. The void Turn itself being a meerly spiritual Thing, and annexed to the Person of the Patron, is not grantable ; it being then, as the Law-Books speak, a Thing in Power and Authority, a Thing in Action and Effect, the Execution of the Advowson, and not the Advowson. But the next Avoidance might be granted ; till, by 12 Ann. c. 12. it was enacted, That if any Person shall for any Sum of Money, Reward, Gift, &c. in his own Name, or in the Name of any other Person, take or except the next Avoidance of, or Presentation to any Benefice with Cure of Souls, Dignity, &c. and shall be presented thereupon, then every such Presentation shall be void, and such Agreement deemed a Simoniacal Contract ; and the Crown may present to such Benefice and Dignity, &c. for that Time only ; and the Person so corruptly taking or procuring such Benefice or Dignity, &c. shall be adjudged a disabled Person in Law to have and enjoy the same ; and shall also be subject to any Pain, &c. inflicted by the Ecclesiastical Laws, in like Manner as if such corrupt Agreement had been made after such Benefice, &c. had become vacant.
Q. In whom of common Right is the Advowson of a Vicarage ?
A. In the Parson : But it may be appendant to other Things, and become the Right of other Persons, by Ordinance, or Composition, or Grant, or special Reservation made at the Time of Appropriation.
Q. What is Advocatio Medietatis Ecclesiae ?
A. Advowson of the Moiety of a Church, is when there be two several Patrons, and two several Incumbents of one Church ; the one of the one Moiety, the other of the other Moiety ; and one Part, as well of the Church, as of the Town, alloted to the one, and the other Part thereof to the other.
Q. What is Medietas Advocationis ?
A. Where there is but one Church, one Incumbent, and two Coparceners who agree to present by Turns, each of them has Medietatem Advocationis ; and if either be disturbed, she shall have a Quare Impedit.
Q. What Prerogative has the King, in respect of Advowson, and Right of Presentation ?
A. 1. Advowson shall not pass from the Crown, when the King giveth or granteth a Manor, without express Mention either by Name, or cum pertinentiis, or adeo plene & integre & in tam amplis modo & forma prout, &c. which have been adjudged equivalent to an express Mention. 2. Nullum tempus occurrit Regi ; Plenarty by six Months shall bar the Party that hath Right, but it shall not bar the King ; as, if the King, by Award of the Court, doth recover his Presentation, tho’ it be after the Lapse of six Months from the Time of the Avoidance, no Time shall prejudice him, so that he present within the Space of six Months after. 3. The King is Patron-Paramount of all the Benefices in England ; so that he may present by Lapse, or upon Forfeitures, by Attainder, Simony, Outlawry, &c. 4. He hath also a Right to present to all the Dignities and Benefices of the Advowson of Archbishops and Bishops, during the Vacancy of the respective Sees. 5. The Church is not full against the King till Induction, against others by Institution. 6. Upon Promotion of any Person to a Bishoprick in England or Ireland, the King hath Right to present to such Benefices or Dignities as the Person was possessed of before such Promotion, tho’ the Advowson belongeth to a common Person.
Q. Is this Right answered, and the Turn of the Crown satisfied, by the Grant of a Commendam to retain such Promotions, or any Part of them, together with the Bishoprick ?
A. By a Commendam for Life, and for the Time of continuing in such a Bishoprick, the Turn of the Crown is answered, and in such Case the proper Patron shall present upon Death or Translation ; but the Right of the Crown shall not be defeated by a Commendam granted for a Term of Months or Years, certain, and limited.
Q. Does this Right of the Crown, to present upon Promotion, defeat the Right of a Grantee who had the next Avoidance ?
A. Yes, for his Right was only to have the Next ; and That he cannot have, and therefore he can have none.
Q. To what Benefices appertaining to the Crown hath the Lord Chancellor or Keeper of the Great Seal for the Time being a Right to present ?
A. To all under a certain yearly Value in the King’s Books ; anciently to all of twenty Marks or under ; but now to all of twenty Pounds or under, which Enlargement was probably made about the Time of the new Valuation, Tempore Hen. VIII.
Q. If a common Person usurp upon the King, and his Clerk is inducted, how may the Benefice be made sure to him ?
A. Altho’ the King hath Right, and may remove him by due Course of Law, yet if such Clerk obtain the King’s Confirmation, under the Great Seal, the Benefice is sure to him against the King.
Q. If the King himself Present, and revoke such Presentation before Induction and after, the same Presentee is instituted and inducted, shall the King’s Ratification be good, upon his ratifying the Incumbency to the Presentee ?
A. No : Because the Presentation being revoked, the Clerk was never in ex Praesentatione Regis, and so there was really no such Title to be ratified.
Q. How is the Law with Regard to Coparceners, or Joint-tenants, or Tenants in Common, having made Partition to present by Turns — ?
A. Each shall be seized in Law, of his or her separate Part of the Advowson, to present in their Turn. 7 Ann. c. 18.
Q. What is a Lapse ?
A. Lapse is a Devolution of Patronage from the Patron to the Bishop, as Ordinary ; fin the Bishop to the Metropolitan, as Superior ; from the Metropolitan to the King as Patron-Paramount.
Q. What is the Term or Space in which Title by Lapse accrues successively to the fore-mentioned Superiors ?
A. Six Kalendar-Months, the Day the Church becomes void not being taken into the Account.
Q. Must the Patron have Notice of the Voidance ? or is the Time of Lapse to be accounted from that Notice ?
A. The Common-Law makes this Distinction ; where the Avoidance is occasioned by an Act between the Ordinary and the Incumbent, as, in Case of Deprivation and Resignation, Lapse shall incur from Notice given by the Bishop, or if he die, by his Successor : But where it is occasioned by the Hand of God, as in Case of Death ; or by the Act of the Incumbent, as in Case of Cession ; no Notice need be given, but the Patron is bound to take Notice of it, and so Lapse shall incur from the Death or Cession.
Q. Does Lapse incur without Notice in any other Case ?
A. Yes ; where a Spiritual Person presents an Illiterate Clerk, and he is refused : Because the Law supposes such to be Judges of the Abilities of their Clerk, and that therefore they ought not to have presented an Insufficient Clerk.
Q. If a Clerk is refused for want of Abilities, or for Immorality, shall the Patron have Notice ?
A. Tho’ the Patron ought to have Notice, that he may present another in due Time ; yet, if he neglect, the Lapse shall incur from Death or Cession, and not from the Time of Notice.
Q. If Lapse happens thro’ the Default of the Bishop, as if he will not award a Jure Patronatus when required, or will not examine the Clerk, or refuses him without Cause, and the Church becomes litigious, shall it incur in that Case ?
A. No : But if he does what is his Duty, upon a Presentation made to him, and refuses with good Cause, and is not named in the Quare Impedit or if no Presentation is made, and yet a Quare Impedit is brought against Patron and Ordinary, the Lapse shall incur, and his Collation thereupon shall be good.
Q. Shall it avail the Plaintiff in the Quare Impedit, that he recovers within six Months, unless within the said Term the Bishop receives the Writ ?
A. No : Nor that he brings a Writ of Error, unless, within the six Months, he also brings a Writ of Quare Incumbravit.
Q. Can Title by Lapse accrue to the Metropolitan, or King, where it hath not first accrued to the immediate Ordinary ?
A. No, even though the Lapse be lost by Default of the Ordinary ; as for want of giving Notice, or the like : And for the same Reason, if a Clerk be instituted, and remains eighteen Months without Induction ; though Institution is no Plenarty against the King, yet being so against the Bishop, no Title by Lapse shall accrue to the King.
Q. If the Bishop be Patron and Ordinary, shall he have a double Time to present in ?
A. No, only six Months.
Q. If Title by Lapse accrues to the Bishop, and he dies, or is translated, or deprived, before he takes the Benefit of it, to whom is the Devolution ?
A. To the Metropolitan, as he is Guardian of the Spiritualties ; and as this is not an Interest, but a meer spiritual Trust.
Q. Lapse accruing to the Bishop in a Metropolitical Visitation, shall he lose the Benefit of it ?
A. No : He may present his Clerk, during his Inhibition, to the Archbishop for Institution, instead of collating by his own Authority.
Q. If after Lapse to the Ordinary, or Metropolitan, the Patron present to the Ordinary, before the Church is filled, is he bound to receive his Clerk ?
A. All the Law-Books agree in the Patron’s Right to have his Clerk admitted. But after Lapse to the King, the Patron is wholly disabled from presenting ; and if he do present, and his Clerk is instituted and inducted, the King may remove him by Quare Impedit. But if in such Case, the Patron’s Clerk is suffered to die incumbent, the King’s Turn is served, and he hath lost the Advantage of the Lapse ; not so in Case of Resignation.
Q. Is there Lapse from the King ?
A. No, there is no Remedy against a Neglect in the Crown to fill the vacant Churches, but only the Ordinary’s sequestring the Profits of the Church, and appointing a Clerk to serve the Cure.
Q. What Disabilities are Popish Recusants under, with Regard to Presentation ?
A. By 3 Jac. I. c. 5. Every Recusant Convict, during his Recusancy, shall be utterly disabled to present to any Benefice, with Cure, or without Cure, Prebend, or other Ecclesiastical Living, or to collate or nominate to any Free-School, Hospital, or Donative whatsoever ; and to grant any Avoidance to any Benefice, Prebend, or other Ecclesiastical Living : And the Chancellor and Scholars of the University of Oxford, shall have the Presentation, Nomination, Collation and Donation of and to every such Benefice, &c. within the Counties of Oxford, Kent, Essex, Middlesex, Sussex, Surrey, Hampshire, Berkshire, Buckinghamshire, Gloucestershire, Worcestershire, Staffordshire, Warwickshire, Wiltshire, Somersetshire, Devonshire, Cornwal, Dorsetshire, Herefordshire, Northamptonshire, Pembrokeshire, Carmarthenshire, Brecknockshire, Monmouthshire, Cardiganshire, Montgomeryshire, the City of London, and in ever City and Town, being a County of itself, within the Precincts of any of the Counties aforesaid.
The Chancellor and Scholars of the University of Cambridge, shall have the Presentation, &c. to all within the Counties of Hertfordshire, Bedfordshire, Cambridgeshire, Huntingdonshire, Suffolk, Norfolk, Lincolnshire, Rutlandshire, Leicestershire, Derbyshire, Nottinghamshire, Shropshire, Cheshire, Lancashire, Yorkshire, the County of Durham, Northumberland, Cumberland, Westmorland, Radnorshire, Denbighshire, Flintshire, Carnarvonshire, Anglesyshire, Merionethshire, Glamorganshire, and in every City and Town, &c. therein.
Q. What Proviso is there in the Statue, concerning the Person to be presented ?
A. No such Benefice shall be granted to any Person, having any other Benefice with Cure of Souls ; such Presentation being declared utterly void : And if any Person so presented, shall be absent from his Benefice Sixty Days in a Year, it shall be void.
Q. If a Living become vacant during Conviction of a Recusant, and he afterwards conformeth or dieth, is the Presentation still in the University ?
A. Yes, the Univerity shall present, hac vice, notwithstanding.
Q. Does the Crown claim the Right of presenting to these Livings in any Case ?
A. Yes, in one, viz. where Seizure has been made by the King ( according to the 29 Eliz. c. 6. and 3 Jac. I. c. 4. whereby he is impower’d, upon Default of Payment of 20l. per Month, to seize two Parts of the Lands, Tenements, &c. of Recusants convict ) of two Parts of a Manor, to which an Advowson was Appendant, and after that, of the Advowson, as Part of the King’s two Parts.
Q. Are no Papists disabled from presenting, but such as are Recusants convict ?
A. By 1 Will. & Mar. c. 26. Every Person who shall refuse to subscribe the Declaration against Transubstantiation, &c. 1 Will. & Mar. c. 15, when the same shall be tendered by any two, or more Justices of the Peace ; or upon Notice given to appear, shall refuse or forbear to appear before them, shall, thereupon have his Name, Sirname, and usual Place of Abode, certified and recorded, at the General Quarter-Sessions, and every such Person shall be disabled to present, as if he were a Popish Recusant convict, and the University shall have the Presentation.
Q. May not a Person present, who is seiz’d of an Advowson in Trust for a Popish Recusant, or Person disabled ?
A. No the Presentation shall be in the University ; and in Case any Trustee, Mortgagee, or Grantee of any Avoidance for any Recusant, or disabled Person, shall present, without giving Notice of the Avoidance, in Writing to the Vice-Chancellor of the University, to whom the Presentation shall belong, within three Months after, he shall forfeit 500l. to the University. And by 12 Ann. Sess. 2. c. 14. Every Papist, or Child, not being a Protestant, under the Age of 21 Years, being the Child of a Papist ; and every Mortgagee, Trustee, &c. for any such Papist or Child, shall be disabled, and the Presentation shall be in the Universities, as above.
Q. What Care is taken by that Statute for the Discovery of fraudulent Trusts ?
A. As often as any Presentation shall be brought to an Archbishop, Bishop, &c. from any Person reputed to be, or whom the Bishop shall suspect to be a Papist, or Trustee to any one, making Profession of that Religion, the Bishop may tender to the Person, ( if present ) the Declaration against Transubstantiation 25 Car. II. to be subscribed ; and if absent, he may, by Notice in Writing to be left at the Habitation of such Person, appoint a convenient Time and Place for him to appear before him, or before some other Person, having Authority by his Commission, under his Seal of Office, and then tender the Declaration ; and if he shall refuse to make such Declaration, or not appear, the Presentation shall be void, and the Bishop shall give Certificate thereof within Ten Days to the Vice-Chancellor of the University to whom the Presentation would of Right belong, if such Person so presenting, had been a Popish Recusant convict ; and the University shall present. The Bishop, &c. is likewise requir’d to examine the Person presented, on Oath, before he gave him Institution, whether to his Knowledge, or Belief, the Person who made such Presentation, be the real Patron, and made it in his own Right ; or whether he be not a Trustee for a Papist, &c. And if such Person so presented refuse to be examined, or not answer directly, such Presentation shall be void. Also the Chancellor and Scholars of the Universities may exhibit their Bills in Equity for the Discovery of such fraudulent Trusts against such Person presenting, &c. or any other who they have cause to suspect may be able to discover such secret Trust ; and also sue any Writ of Quare Impedit, by their proper Names of Incorporation. Ibid.
Q. Is a Caveat of any Force, which is entered, by one who suspects that another will usurp his Right, during the Life of the Incumbent ?
A. The Canon and Civil Law allow a Caveat to be entered quia veretur Damnum futurum ; but it is of no Force in this Particular, because contradicted by the Common Law.
Q. Is it then adviseable in such Case to enter a Caveat before the Incumbent dies ?
A. It will be a Restraint upon the Ordinary from admitting any Clerk hastily, tho’ not in Law, yet in Equity and Prudence.
Q. Are Admission, Institution, and Induction good in Law, notwithstanding the Entry of a Caveat to the contrary ?
A. Yes. They shall stand to all Intents and Purposes, by the Rules of the Common Law, in the Eye of which, the Caveat is said only to be a Caution for the Information of the Court, but that it doth not preserve Jus illaesum, so as to null all subsequent Proceedings ; nor hath it ever been determined, that a Bishop became a Disturber, by giving Institution, without Regard to a Caveat : On the contrary ’tis said, that the Common Law hath nothing to do with a Caveat.
Q. What is Jus Patronatus ?
A. An Enquiry which the Bishop makes concerning several Matters relating to the Right and Title of a Patron who hath presented a Clerk to him, in order to Admission and Institution ; which, tho’ anciently issued of Course, upon every Presentation made, is now grown occasional only, when Churches happen to be litigious.
Q. What makes a Church litigious ?
A. When two different Persons are presented to it, or the same Person, severally, by two Patrons.
Q. When a Church is litigious, what Course must the Party take who prays Institution, and is refused, or delayed ?
A. He hath a Right to require the Bishop to award a Jure Patronatus.
Q. What if the Bishop refuses to award accordingly ?
A. He brings upon himself divers inconveniencies ; He becomes a Disturber, and he hinders the Lapse, if the Clerk is not admitted in six Months ; and if such Patron makes good his Title, by due Form of Law, and did not name the Bishop in the Quare Impedit, he may have an Action upon the Case against the Bishop, and recover the Costs and Damages he hath sustained, by Reason of a wrongful Admission of the Bishop, without the awarding of a Jure Patronatus, as aforesaid.
Q. What if the Bishop happens to admit him, who, upon Trial, appears to have the better Title ?
A. Then the other is without all Remedy against the Bishop.
Q. Where a Church is litigious, may each of the contending Parties singly demand a Jure Patronatus ?
A. Yes.
Q. May a Jure Patronatus go, where two several Patrons, claiming by several Titles, present one and the same Person, severally, to a Church ?
A. Yes, that the Bishop may know upon whose Title he is to institute ; that being a Circumstance which always is, or ought to be, distinctly mentioned in the Records of the See, as Part of the Entry of Institution.
Q. When the Jure Patronatus is awarded, how is it to be executed ?
A. According to the Forms of Proceeding in the Ecclesiastical Courts.
Q. What are those Forms ?
A. The Bishop, if he pleases, may sit himself as Judge, but the usual Way is by Commission issued to his Chancellor, or to such other Person or Persons, as he shall judge proper. 2. A Monition to the Patrons and Clerk immcdiately concerned, to appear before such Commissioners, in the Church that is litigious, on a certain Day. 3. A General Citation of all Opposers, to be fixed to the Door of the Church, in Time of Divine Service. 4. A Citation of a Jury of six Clergymen, and six Laymen of the Neighbourhood, or of as many more as the Bishop pleases, the Proportion being observed of Clergy and Laity, that there be as many of one Sort, as of the other. And these are bound to appear, under Pain of Spiritual Censures ; the Clergy of Sequestration, and the Laity of Excommunication ; and if there be six of each, the rest are pronounced Contumacious, and the Court proceeds. 5. The Clergy and Laity who are of the Jury, are to be sworn to make faithful Enquiry, viz. First a Clerk, and then a Layman. 6. Articles, or Heads of Enquiry, to be delivered to them ; as, whether the Church be void, and how it became so ? Who presented last, and at the two foregoing Turns ; and whether in their own Right ? Who hath the Inheritance of the Advowson ? Who ought to present to the void Turn ? With such other Circumstances, as the Bishop shall see Cause to enquire into. 7. The Parties, or their Counsel, to set forth their Titles, and produce their Evidences. 8. The Verdict to be given either the same Day, or at such other Time and Place, as the Judge shall assign.
Q. Is the Bishop bound to admit and institute the Person in whom the Right is found ?
A. Not absolutely ; nor is the Admission and Insitution of another void in Law, but this is ( generally speaking ) the fairest and most impartial Way ; and the Bishop, by doing otherwise, brings upon himself the Inconveniencies which accrue upon the Refusal to award a Jure Patronatus, as above.
Q. What if the Jury are equally divided, or give a Special Verdict, or no Verdict ; or if ( where two Patrons have each a Jure Patronatus, ) there is a Verdict in Favour of each Patron ?
A. It seems in there Cases, that the Bishop, ( inasmuch as he hath done his Duty ) may refuse both, without subjecting himself to any of the said Inconveniencies : Tho’ it is affirmed by some, that in such Cases he may award a second Jure Patronatus.
Q. At whose Costs shall the Jure Patronatus be sued ?
A. At the Cost of the Party, or his Clerk, and not of the Bishop.
Q. Who is to name the Commissioners ?
A. The Civilians say, that the Commissioners shall be named by the Parties, and they ony shall be prejudiced by the Commissioners Neglect ; the most usual Way is for the Bishop to do it.
Q. What is Usurpation of a Benefice ?
A. When a Stranger that hath no Right presenteth to a Church, and his Clerk is admitted and instituted, he is said to be an Usurper, and the wrongful Act that he hath done, is called Usurpation.
Q. What Remedy is there against the Usurpation ?
A. The true Patron, within six Months, may bring his Writ of Quare Impedit, or Darein Presentment ( as the Case requires ) and recover his Presentment and Possession of the Advowson ; but if neither of these Writs be brought within the six Months, ( i.e. so as to bear Teste within that Time ) the Incumbent is in for Life, and the Usurpation compleat, except where the King is Patron.
Q. Does an Usurpation, when compleat, displace the Estate or Interest of any Person, intitled to an Advowson, and turn it to a Right ?
A. No ; the Patron may present or maintain his Quare Impedit upon the next or any other Avoidance, notwithstanding such Usurpation.
Q. Does a Presentation that is void in Law, ( as in the Case of Simony, &c. ) make a Usurpation against the Patron ?
A. No ; nor where between the Usurper and the Person upon whom the Usurpation is made, there is Privity in Blood ( as in the Case of Coparceners ) or Privity in Estate, as between Lessor and Lessee, Grantor and Grantee, Joint-Tenants, and Tenants in common.
Q. What is Intrusion ?
A. When a Clerk procures Institution to a Church that is full already, upon a false Suggestion of the Incumbent’s Death, Cession, &c.
Q. If an Intruder getteth Possession, and holds it by a strong Hand, and great Power of the Laity, vi & armis, against the Spiritual Authority ; how is such Force remove-able ?
A. By the Writ de vi Laica amovenda, which is usually issued upon a Certificate of the Bishop into Chancery, touching such Force and Resistance ; and may also be obtained upon a Surmise of him that is immediately griev’d.
Q. What Provision does the Spiritual Law make against Intrusion ?
A. By a Constitution of Othobon, no Bishop shall admit a Clerk, but upon authentick Proof of a real Vacancy, upon Pain that the Institution be invalid and null, and Satisfaction made to the Incumbent ; with Suspension of the Bishop from Institution and Deprivation, and Incapacity of the Intruder, being obstinate, to take any Benefice in the Diocese where he offended.
Q. What Time has the Bishop allowed him to enquire and inform himself of the Sufficiency and Qualities of every Minister that is presented to him for Institution ?
A. He had anciently two Months, but by the 95th Canon, he has now only Eight and Twenty Days ; till which be expired, no Double Quarrel shall be granted.
Q. What is Double Quarrel ?
A. When a Clerk, who is presented to a Benefice, offers himself to the Bishop, or other Person having Power for Institution, and is refused, or unreasonably and illegally delay’d, he may appeal to the immediate Superior, ( to the Archbishop, when the Ordinary refuses, and to the Court of Delegates, when the Archbishop refuses ) and thereupon obtain an Instrument directed to the Ordinary, and call’d Duplex Querela, ( in English improperly render’d Double Quarrel ) containing a Monition to institute within a certain Day, or if he refuses, then to appear and shew Cause why he doth not ; with an Inhibition that nothing be done, pendente Lite, to the Prejudice of the Party complaining. This being duly intimated to the Bishop, and the Clerk offering himself three Times, at convenient Distances, within the Space assign’d ; if the Bishop neither obeys nor appears, he is pronounced Contumacious, and Institution is decreed, and given by the Superior. But if the Bishop appear by himself, or Proxy, and alledges Matter of Spiritual Cognizance, as, the Church is full, or the Clerk Immoral or Insufficient, then the Superior Court proceeds to Trial ; and as the Matter appears, gives Judgment for or against Institution. But if the Archbishop doth decree and grant Institution to such Clerk, and cause him to be Inducted, and the Bishop and Patron of another Presentee, sue before the Delegates to void the Institution, a Prohibition will be granted ; because Induction, giving a Temporal Right, is not to be avoided, but by a Suit at Common Law.
Q. What Remedy is there for gaining Possession, by Writs, in the Temporal Court ?
A. “13 Ed. I. cap. 5. Of Advowsons of Churches there be three Original Writs ; that is to sav, one Writ of Right, and two of Possession, which be Darrein Presentment, and Quare Impedit.” and in Pursuance of the two last, there is another called Ne admittas, and upon Neglect of that, a Quare Incumbravit.
Q. What is a Writ of Right ?
A. A Writ by which the Inheritance of the Advowson might be recovered, but the Incumbent could not be removed.
Q. What is a Writ of Darrein Presentment ?
A. A Writ ( called in Latin, Assisa Ultime Presentationis ) which lieth, where a Man or his Ancestor, hath presented a Clerk to a Church, and after ( the Church becoming void, by his Death or otherwise ) a Stranger presents his Clerk to the same Church, in Disturbance of him who had last presented.
Q. What is a Writ of Quare Impedit ?
A. This Writ lies where one hath an Advowson, and the Parson dies, and another, presents a Clerk, or disturbs the rightful Patron to present ; and it was provided chiefly for the Sake of Purchasers of Advowsons, who could not have the Writ of Darrein Presentment ; but so, that all who may have that Writ, may have this of Quare Impedit, if they please.
Q. What Time is allow’d for the bringing of a Writ of Quare Impedit, or Darein Presentiment ?
A. If the rightful Patron bring his Action within six Months after the Avoidance, it is maintainable by 13 Ed. I. c. 5. otherwise not : Only the King may have his Quare Impedit when he pleases, and that whether he claimeth Jure Coronae, or in the Right of the Subject.
Q. What is a Ne Admittas ?
A. A Writ to the Bishop to forbid Admission where one hath an Action of Darein Presentment, or Quare Impedit depending in the Common Pleas, and he supposeth that the Bishop will admit the Clerk of the Defendant, pending the Plea betwixt them.
Q. When must this Writ be sued for ?
A. Within Six Months after the Avoidance, for after Six Months he shall not have this Writ ; because then the Bishop may present for Lapse, and therefore it is in vain then to sue for the Writ, because the Title to present is devolv’d to the Bishop.
Q. What if, notwithstanding the Ne Admittas, the Bishop doth admit the Clerk of any other Person, pending the Suit ?
A. If he who brought it recovers, he shall have a Writ of Quare Incunmbravit and if it be found by Verdict, that the Bishop hath incumbred the Church, after the Ne Admittas deliver’d to him, and within Six Months after the Avoidance, Damages are to be awarded to the Plaintiff, and the Bishop directed to disincumber the Church.
Q. In what manner are Damages to be awarded upon Writs of Quare Impedit and Darein Presentment ?
A. By 13 Ed. I. c. 5. If the Time of Six Months pass by the Disturbance of any, so that the Bishop doth confer to the Church, and the true Patron loseth his Presentation, for that Time, Damages shall be awarded to the Plaintiff, for two Years true Value of the Church, ( as the same may be letten. ) And if the Six Months be not passed, but the Presentment be deraign’d within the said Time, then Damages shall be awarded to the Half Year’s Value of the Church ; and in Case of Insolvency, the Disturber shall be imprison’d for two Years, or half a Year respectively.
Q. What if the Bishop hath not Collated ?
A. Tho’ he hath not collated, yet if he hath Jus Cenferendi, the Plaintiff shall, if he will, recover double Damages, within the Meaning of this Act : But if, notwithstanding the Bishop’s Title to collate, the Church remains void, the Plaintiff may recover his Presentation ; and if he does, the Damages shall only be for half a Year ; in which Case he hath his Election, either to lose his Presentation, and have double Damages, or to have his Presentation with single Damages.
Q. Is the Bishop or Ordinary to be named in a Quare Impedit, together with the Disturber ?
A. Yes ; if the Church be not filled, to prevent the Lapse ; if the Church be already fill’d by the Bishop, on Account of Lapse, he must be named in it, together with the Incumbent, otherwise the Writ will abate.
Q. Why does the naming of the Bishop in the Writ of Quare Impedit, prevent the Lapse ?
A. Because he must either plead, that he claimeth nothing but as Ordinary, &c. and then the Plaintiff hath an Award of a Writ to him, with a Cesset Executio ; or else he must allow himself to be a Disturber ; and being made Party to the Action, he is barred of the Advantage of the Lapse.
Q. Shall the naming of the Bishop in the Writ, in all Cases, prevent his having the Advantage of a Lapse ?
A. No : If a Quare Impedit be brought againit a Bishop for a Disturbance, and the Plaintiff doth lay in his Count, the Disturbance to be after the Date of the Writ, he shall be barred, and the Bishop may collate when the Time of Lapse comes : So also in the Case of a feigned Action, as when a Patron being no Ways disturbed, but his Church remaining open to him, he presents not, but before the six Months incurred, or before Collation made by the Ordinary, he brings a Quare Impedit ; such fraudulent Action shall not debar the Ordinary of presenting by Lapse, pending the Writ.
Q. What is the Duty of the Bishop after Judgment in the Temporal Court, and upon a Writ to command Institution ?
A. If the Church is void, he is to institute ; If the Church is already full, either by Presentation of a Stranger, or by his own Collation pendente Lite, a Writ of Quare non Admisit will go against him ; to which he may return, that the Church is full. Some think it adviseable to execute the Writ commanding Institution, and leave the two Incumbents to try their Rights at Common Law.
Tit. XXXIV.
How many Ways doth Spiritual Promotion become void, and what Notice is to be given of such Voidance ?
A. By the Act of God ; 2. By the Act of the Incumbent ; 3. By the Act of the Ordinary : 4. By the Act of the Law ; to be notified respectively as below.
Q. How does Voidance happen by the Act of God ?
A. By Death of the Incumbent, and doth commence from the Day thereof, and of this Voidance the Patron is bound to take Notice at his Peril, without expecting an Intimation from the Ordinary.
Q. How may Voidance happen by the Act of the Incumbent ?
A. 1. By Resignation, which being necessarily made into the Hands of the Ordinary, and not valid, but as admitted by him, the Voidance consequent upon it, is to be notified by the Ordinary to the Patron. 2. By Cession or the Acceptance of a second Benefice incompatible.
Q. What is a Benefice incompatible ?
A. That, the Acceptance whereof, without Dispensation or Commendam, makes a former void ; and this may be either upon the Account of its Value, or by Promotion.
Q. How are Benefices void in these Respects ?
A. If the second Benefice is of the yearly Value of eight Pounds or above, in the King’s Books, it is void by Ac of Parliament, and no Notice is needful ; if under eight Pounds a Year, it is void by Canon Law, and the Patron may either present his Clerk immediately, and require Admission, or may sue in Court Christian for Sentence of Deprivation, and wait for the Notice to be given thereupon ; or the Ordinary himself may, ex mero Officio, proceed to Deprivation, and hen give Notice.
Q. How is Voidance by Promotion ?
A. When a Parson possess’ed of Ecclesiastical Benefices of any Kind is promoted to a Bishoprick in England or Ireland, and there is no Dispensation to hold them in Commendam with the Bishoprick, in such Case, upon the Consecration of the Bishop, they become void, and the Right of Presentation belongs to the Crown.
Q. How is Voidance by the Act of the Ordinary ?
A. By Deprivation for any Crime, &c. which Voidance, being created by Sentence in the Ecclesiastical Court, must be notified to the Patron ; but takes not Place presently, if an Appeal is depending.
Q. How are Benefices void by the Act of the Law ?
A. In Case of Simony ; not subscribing the XXXIX Articles, or Declaration ; not reading the Articles, or the Common-Prayer ; and Non-payment of Tenths : All which shall be taken Notice of in their proper Places.
Q. What is the general Rule concerning the Notice to be given of such Voidances as happen by Statute ?
A. If the Disability grow by any Act of Parliament, or other Temporal Law, there no Notice ought to be given, unless Notice be prescribed to be given thereby.
Q. To whom does the Cognizance of Avoidance of Benefices appertain ?
A. By 25 Ed. III. c. 8. it is expressly confirmed to the Ecclesiastical Judge ; but a Distinction hath been found out and alledged between full and not full, and void and not void : The former of which shall be tried by the Certificate of the Bishop, because Plenarty is by Institution, which is a spiritual Act ; but whether void or not void shall be tried by the Country, being an Act notorious to the Country, and distinguishable by them.
Q. What Stamp is required for a Presentation ?
A. Every Presentation, Collation, or Donation, of or above ten Pounds in the King’s Books, must have a double forty Shilling Stamp ; if under, none is required.
Q. What are the Rules of Common and Canon Law concerning Presentation and Collation ?
A. 1. A Presentation must be taken from, and executed by the proper Hand or Hands. 2. The Right of Nomination may be in one Person, and the Right of Presentation in another. 3. Presentation may either be by Word or Writing. 4. No Person may present himself. 5. Presentation, tho’ duly made in all Respects, may be revoked, or varied.
Q. If Feme Covert hath Title to present, can she present alone ?
A. No : The Presentation must be by Husband and Wife, and that in both their Names ; except the Case of the Queen, who in this Respect is Feme Sole.
Q. Does the Right of Patronage in the Wife descend to the Heir ?
A. Yes ; but the Right of presenting during Life belongs to the Husband, who is Tenant by Courtesy.
Q. In whose Name must the Presentation be, where one is Guardian in Socage to an Infant who hath Title to present ?
A. It must be in the Name of the Infant ; for the Guardian cannot present, because he is to meddle with nothing but what may be accounted for.
Q. If one hath Right to present at the next Avoidance, and dies, to whom shall the Right go ?
A. Whether the Church be full or void at the Time of his Death, the Right, not being devised by Will, goes to the Executor.
Q. What if one is seized of an Advowson in Fee, and the Church becomes void, and he dies before presenting — ?
A. The Avoidance goes to the Executor, and not to the Heir ; unless the Incumbent was the Person seized also in Fee of the Advowson, for then the Heir shall present.
Q. If the Testator presents, and dies before his Clerk is admitted, and the Executor presents another Clerk — ?
A. The Ordinary may take which he will.
Q. If the Right of Presentation is in Coparceners, and they agree in the same Person — ?
A. They are to join in the Act of presenting, otherwise a Presentation from the eldest Sister alone is good.
Q. Is it the same in Joint-Tenants, or Tenants in Common, where hath been no Composition in Writing to present by Turns — ?
A. No, they must of Necessity join in the Presentation ; for if they present singly, the Bishop may refuse the Clerk.
Q. How can the Right of Nomination be in one Person, and the Right of Presentation in another ?
A. Where he who is seized of the Advowson doth grant unto another and his Heirs, &c. that as oft’ as the Church becomes void, the Grantee and his Heirs shall nominate to the Grantor and his Heirs, who shall be bound to present accordingly.
Q. Is this often praised ?
A. It is no uncommon Case, but is most frequently found in the Diocese of Norwich.
Q. What if the Nominator neglect to appoint his Clerk till Lapse incurs, and then the Patron presents before the Bishop collates — ?
A. The Bishop is bound to admit his Clerk.
Q. Can Presentation be by Word as well as by Writing ?
A. Yes. The Patron must declare in the Presence of the Ordinary.
Q. Is Presentation by Writing properly a Deed ?
A. No, but in the Nature of a Letter missive to the Bishop. Where a Corporation aggregate Presents, it must be under their Common Seal.
Q. If a Patron cannot present himself, how may he be intitled to Institution ?
A. Though he cannot present himself in Form, yet he may offer himself to the Ordinary, and pray to be admitted, and that Admission may be good ; but the more legal and regular Way, is to make over the Right to some other, before the Avoidance.
Q. Where the Right of presenting is vested in more Persons than one, as in the Case of Joint-Tenants, Executors, and Grantees of the next Avoidance, may one of themselves be presented ?
A. Yes ; a Presentation of one of these, made by the rest, is good.
Q. Has every Patron a Right of Revocation ?
A. The general Doctrine is, that none but the King can revoke, which he may do at any Time before Induction : He may also present a second Clerk, and such second Presentation shall be a good Repeal of the first ; and if the King dies before the Induction of his Clerk, this is said to be a Revocation in Law.
Q. What is the general Consequence of a Right to revoke in any Case ?
A. ’Tis an Obligation upon the Bishop not to admit against such Revocation, upon Pain of being a Disturber.
Q. If a common Person cannot revoke, may he not vary his Presentation ?
A. Yes : After one Clerk hath been presented, he may, before Admission given, present another ; but with this Difference from a Revocation, that where a Patron doth thus vary, cumulando, the Ordinary may choose and admit which of the Clerks he pleases.
Q. Is there any Distinction between the Preentations of Ecclesiastical and Lay Persons in this Particular ?
A. The Power of varying belongs not to Ecclesiastical Persons of any Kind, because they are supposed to be competent Judges of the Sufficiency of the Person, and do therefore proceed by Judgment and Election ; and whoever elects an unfit Person, is ipso jure deprived of the Power of electing, and therefore Potior qui Prior is the Rule of the Canon Law in this Case.
Q. Can a Son be immediate Successor to his Father in a Benefice ?
A. Not canonically, without a Dispensation from the Archbishop of Canterbury ; of which Kind of Dispensation there appear to have been no less granted than Three hundred in the Space of fifty-two Years, from the Restoration to the Time when Bishop Gibson wrote his Codex.
Q. What is Simony ?
A. Simony is thus defined, by J. de Athon. Simonia est Spiritualium vel Spiritualibus annexorum, praecedente pacto promissionis, conditionis modi, servitii, vel cujuslibet temporalitatis, Receptio seu Donatio.
Q. Why is this called Simony ?
A. From the Analogy it bears to the Crime of Simon Magus, who offered Money for the Power of conferring the Holy Ghost upon whomsoever he should lay his Hands : And though the Fact which comes nearest to this is, the selling of Holy Orders, the ordaining Persons upon the Motive or Score of Money ; and tho’ ordaining Persons, and collating them to Benefices, are not only different but separable ; yet because it is determined by the Laws of our Church, that the Office is inseparable from the Benefice, and that there should be no Ministers sine titulo allowed among us ; Therefore the giving or the taking Money for a Presentatlbn or Collation, &c. ( except what is appointed to be paid as Fees for Instruments ) is with us called Simony, and made punishable as such ; inasmuch that tho’ it be not buying or selling of a spiritual Gift, it is nevertheless the buying and selling of that which is annnex’d to a spiritual Gift.
Q. To whom does it appertain to determine Simony ?
A. To the Spiritual Court.
Q. But is it not now become a Matter of Cognizance in the Temporal Courts ? and does not the Statute 31 Eliz. c. 6. intituled, An Act against Abuses in Elections of Scholars, and Presentation to Benefices, alter or abrogate the Ecclesiastical Laws concerning it ?
A. No, it only enacts some particular Penalties on some remarkable Simoniacal Acts ; and is not privative of the Jurisdiction of the Church, or its Constitutions, but accumulative : It leaves the Church all the Authority it had before, &c. only, whereas till then these Crimes were inquirable and punishable by the Ecclesiastical Judge alone ; they may now, in some Cases specified in this Statute, be brought before the Civil Magistrate also : Nay, so far are the ancient Ecclesiastical Laws against Simony, and the Powers of the Spiritual Court in Execution of those Laws, from being suspended by this Act, that they are, in a particular Clause, expressly confirmed by it.
Q. What is the Tenor of that Act ?
A. ’Tis enacted, that if any Person or Persons, Bodies politick or corporate, shall, for any Sum of Money, Reward, Gift, Benefit, or Profit, directly or indirectly, or for or by Reason of any Promise, Agreement, Grant, Bond, Covenant, or other Assurance, of, or for any Sum of Money, Reward, Gift, Profit or Benefit whatever, directly or indirectly, present or collate any Person to any Benefice, Dignity, or Living Ecclesiastical, or give or bestow the same, for or in Respect of any such corrupt Cause and Consideration, every such Presentation, Collation, Gift, &c. and every Admission, Institution, Investiture, and Induction thereupon, shall be utterly void, frustrate, and of none Effect ; and any Person, giving or taking Reward, shall forfeit double the true Value of one Year’s Profit, and the Clerk shall be disabled to accept the same Benefice.
Q. How many Kinds of unlawful Contracts may be included in this Statute ?
A. Altho’ the most plain and direct Simony is when the Church is become void, and the void Turn, or the procuring of it, is contracted for ; yet there may be many other Kinds of unlawful Contracts within this Stature, while the Church is full of an Incumbent : As,
1. If the next Presentation is granted upon a Bond given to pay such Sum of Money to the Grantor, when the Church shall become void. 2. If Money is given to one, on Condition that he procures a particular Person to be presented, when the Church shall become void, and that Person is presented. 3. If the next Presentation be purchased or granted, with Condition to present a particular Person by Name. 4. If one promise to a Clerk, that, in Consideration he will marry his Daughter, he will present him to a particular Living when void, or to the next Living, or the next good Living, that shall fall void, in his Gift, and he doth present him, this is a Simoniacal Contract. 5. If a Purchase is made of the next Avoidance, when the Incumbent is sick, and like to die. 6. If a Church being litigious, one Party gives Money, or other Consideration, to the other to surcease, especially if the Money is given by the Presentee on his own Account, this seems to be a Simoniacal Contract unless Allowance may be made for a Man redimere Jus suum.
Q. If the Presentee be neither Party to the Contract, nor privy to it, shall his Presentation be void ?
A. Yes, and so it is with Regard to the Patron : A Simoniacal Contract with the Friend or Wife of the Patron, is within the Statute ; and where the Contract was between the Father of the Incumbent, and the Wife of the Patron, and it was found by special Verdict, that neither Patron nor Incumbent knew any thing of it, yet it was held to be a Simoniacal Contract within the Statute.
Q. How has this Statute been evaded ?
A. The Bond and Aifurance in the Statute being for Money, Reward, Gift, &c. a Way was found very early to avoid the Force, and defeat the Intention of it, with Impunity, viz. by general Bonds of Resignation.
Q. Are Bonds of Resignation, which are conditional, to be looked upon as Simoniacal within the Statute ?
A. They have been declared Simoniacal, if a direct Profit or Reward be expressed as the Condition of the Bond ; for Instance, the making such a Lease, the granting such a Portion of Tithes, the giving Leave to inclose, Articles which it is not likely any Simoniacal Patron will express in his Bond : Yet there are other Conditions which have been declared good and allowable ; for Instance, the taking a second Benefice, the being Non-resident for so many Days or Months, and the Arrival of a Son at the Canonical Age of Institution.
Q. What is to be said of such Bonds of Resignation as are absolute and indefinite, where the Clerk obliges himself to resign, upon three Months Notice, or upon the Request of the Patron, or the like ?
A. Tho’ this is a visible Inlet to the worst Simony that a corrupt Patron can be guilty of, yet such Bonds have often been declared good in Law ; for this Reason, namely, that because there was no Averment that they were for Simoniacal Purposes, they might be upon such Reasons, and for such Ends, as the Temporal Courts allow.
Q. Does this seem to be a sufficient Reason ?
A. Since there are certain Conditions that they do allow, as in the Case of a Minor, and such Restraints as go no farther than to oblige the Clerk to do his Duty, the Presumption seems very strong, that the Condition would have been expressed, if it had been such as the Law warrants ; and that nothing could have inducted the Patron to couch it in general Terms, but that it was such a Condition as was not fit to be particularly expressed.
Q. What, in short, then is to be thought of such Bonds ?
A. They are an unspeakable Mischief to Religion, and bring a great deal of Scandal and Reproach upon the Church : And tho’ it has been said, that if the Patron shall offer to take the Benefit of such general Clause for indirect and illegal Purposes, the Clerk may be relieved in Chancery ; yet if Clergymen will so far forget the Dignity of their Function, and their Duty to their Bishop, and the Oath they are to take, as to submit to such trafficking Methods, and to reduce themselves to such a slavish State, it must be owned, that, as to themselves, they deserve neither Compassion nor Relief.
Q. Are Donatives properly within this Statute ?
A. Yes, corrupt Donation being an equal Mischief with corrupt Presentation or Collation.
Q. What does the Statute mean, when it says the Benefice shall be utterly void ?
A. That it shall be so void, as that there shall be no Need of Deprivation, or Sentence declaratory in the Spiritual Court, so as the Parishioners may deny their Tithes.
Q. In whom is the Right of Presentation upon Avoidance by Simony ?
A. In the Crown, for that Turn ; and that, nothwithstanding the Death of the Simoniacal Incumbent, while the Church remains void, and no other is in Possession at the Presentation of the true Patron.
Q. But if any Person hath at first presented Simoniacally by Usurpation — ?
A. The rightful Patron shall present.
Q. Is a Clerk that seeketh to obtain a Presentation by Money, altho’ afterwards the Patron present him gratis, disabled to take that Benefice ?
A. The Words of the Statute are against corrupt seeking, as well as accepting ; and it hath been said, that a Sinoniacal Attempt only doth disable.
Q. What is the Ecclesiastical Penalty upon Simony ?
A. Many of the ancient Canons of the Church make Deposition the Punishment of Simony, whether in Bishops or Presbyters : Others make it Deprivation.
Q. What Difference does the Civil and Canon Law make in Point of Penalty between Simoniacus and Simoniace Promotus ?
A. If the Clerk is Simoniacus, Privy or Party to the Simony, he is to be deprived of that, and for ever disabled to accept any other Benefice : but if he is only Simoniace promotus, ( by Simony between two Strangers, whereunto he was not privy ) he is deprivable, by Reason of the Corruption, but not disabled to take any other.
Q. What Care does the Church of England take to prevent Simony ?
A. By requiring this Oath of every Clerk before Institution. I do swear, That I have made no Simoniacal Payment, Contract, or Promise, directly or indirectly, by myself, or by any other to my Knowledge, or with my Consent, to any Person or Persons whatsoever, for or concerning the procuring or obtaining of —— N—N— ; nor will, at any Time hereafter, perform or satisfy any such kind of Payment, Contract, or Promise, made by any other without my knowledge or Consent. Canon 40.
Q. What do you observe from this Oath ?
A. According to the plain Tenor of it, as well as according to the Language of former Oaths, and the Notion of the Catholick Church concerning Simony, it is against all Promises whatsoever : And therefore, though a Person comes not within the Statute 31 Eliz. by promising Money, Reward, Gift, Profit, or Benefit ; yet he becomes guilty of Perjury, if he takes this Oath after any Promise of what kind soever.
Q. Does the Simony of a Predecessor, being dead, affect his innocent Successor, so as that he may be troubled, or removed upon Pretence of Lapse ?
A. No, unless the Simoniack, or Simoniacally presented Person, or his Patron, was convicted in the Life-time of the said Simoniack. 1 Will. & Mar. c. 16.
Q. Are Leases made by Simoniacks good ?
A. Yes, if really & bona fide made, and in case the Lessee was not privy to the Simony.
Q. What is Institution ?
A. The actual Conveyance of the Spiritual Cure by the Bishop to the Clerk, upon the Presentation of another.
Q. Can the Archbishop give Institution to a Peculiar ?
A. If he gives Institution to a Peculiar belonging to an Ecclesiastical Person or Body, it is only voidable ; because they being not. free from his Jurisdiction and Visitatinn, the Archbishop slall be supposed to have a concurrent Jurisdiction, and in this Case only to supply the Defects of the Inferiors, till the contrary appears : But if the Archbishop grant Institution to a Peculiar in a Lay-Hand, it is null and void ; because he can have no Jurisdiction there.
Q. To whom belongs the Right of Inistitution, while any Diocese, or inferior Jurisdiction, is Visited and Inhibited by the Archbishop ; or during the Vacancy ?
A. During Inhibition, to the Archbishop ; And in the Vacancy, to him, or other Person, who by Composition, Prescription, &c. is Guardian of the Spiritualities.
Q. Is the Power of Institution Local ?
A. The Courts of Common Law are said to affirm, that it is not, but follows the Person of the Ordinary where-ever he goes : But this hath not always been understood to be clear Law, as appears by the many Commissions granted by Archbishops to their Comprovincial Bishops, to institute out of their Diocese, and in any Part of the Province.
Q. Can Institution be given by Commission from him in whom the Power rests ?
A. Yes, in particular Cases ; and the general Power may likewise be Delegated by Patent to Chancellors or Commissaries ; but this hath formerly been judged not convenient, as appears by the following Order in the Canons of 1640, In all Patents of Chancellors, Commissaries, and Officials, the Bishop shall keep in his own Hands the Power of Institution unto Benefices.
Q. Can a Layman be admitted to a Benefice ?
A. It hath been held, that in former Time, a meer Layman might have taken a Title to a Deanery, Prebend, or other Benefice without Cure ; but by the Act of Uniformity, 13, 14 Car. II. c. 4. Priesthood is made a necessary Condition of being admitted to any Ecclesiastical Promotion whatever.
Q. What is required of a Person who applies for Institution ?
A. He must show the Bishop his Letters of Orders, and bring a sufficient Testimony of his former good Life and Conversation, if the Bishop require it ; and laffly, shall appear upon due Examination to be worthy of his Ministry. Canon 39.
Q. For what Causes may a Clerk be refused Institution ?
A. By 9 Edw. II. c. 13. For lack of Learning, or for other Cause reasonable.
Q. Who is to be Judge of the Clerk’s Insufficiency ?
A. By the same Statute the Bishop hath a Right to examine and judge ; nor is he accountable to any * Temporal Court for the Measures he takes, or the Rules by which he proceeds, in examining and judging ; nor need he set forth in what kinds of Learning, or to what Degrees he is defective : It has been adjudged in Parliament, a good Plea on the Part of the Bishop, that the Presentee was persona in Literatura minus sufficiens, seu capax ad habendum dictam Ecclesiam.
* But Note, he may Appal to the immediate Superior, as above, and have a Duplex Querela.Q. Does not the Clerk’s having been Ordained and Licensed to preach by another Bishop, and so presumed to be of good Abilities, diminish the Right which that Statute gives the present Bishop to examine and judge ?
A. No, as has been particularly allowed, not only by the Court of Common Pleas, and King’s Bench, but also by the High Court of Parliament.
Q. Is lack of Language a good Cause of Refusal ; namely, of Welch or English in the respective Cures ?
A. Yes, as rendering the Clerk uncapable of the Cure.
Q. What other reasonable Cause is understood ?
A. 1. All such Causes as are sufficient Causes to deprive an Incumbent, are sufficient Causes to refuse a Presentee. 2. If a Man be guilty of Crimes which are mala in se, as Incontinence, Drunkenness, Murder, Manslaughter, Heresy, Schism, Perjury, Simony, he may be legally refused ; but if Crimes are alledged that are only Mala prohibita, as haunting of Taverns, Gaming, &c. the Refusal cannot be warranted : So the Books of the Common Law hold. And these Rules are well calculated for the Benefit of Patrons and Purchasers, to facilitate their obtruding of Sons or Relations upon the Church for Support and Maintenance ; but it is a melancholy Consideration, with regard to Religion, that the Bishop, who hath the Care of all the Souls in his Diocese, and is bound in Conscience to see them well taken Care of, shall be bound in Law to commit that Care to such Persons who are known to live like Laymen, in Contempt of the wholesome Orders of the Church, for the grave and decent Behaviour of the Clergy ; and this meerly because they are not quite wicked and irregular enough to be deprived in a legal Way.
Q. Are there no other Causes of Refusal ?
A. Yes, such as are not properly Crimes but Incapacities ; as the being a Bastard, without Dispensation ; or Excommunicate ; or Outlaw’d ; And, as my Lord Coke held, an Alien ; tho’ the contrary was holden by Rolle, 2 Abr. 348.
Q. Is the Bishop bound, in a Quare Impedit brought against him for Refusal of the Clerk, to set forth the Cause of his Refusal Specially and directly ?
A. Yes, except in Case of Refusal for Insufficiency for Learning, as above : For, that the Clerk is of ill Life and Conversation, or a Schismatick in general, is not sufficient, without showing what Crimes, or what Schismatical Acts, or Heretical Opinions, he is charged with. The Temporal Court then will judge whether the Cause be just or not : And, if the Party denies the same, the Court may write to the Metropolitan to examine the Matter, and certify it : For, whether the Cause be Temporal or Spiritual, the Examination of the Bishop doth not finally conclude the Clerk ; the Bishop is Judge of the Ability, but not the ultimate Judge.
Q. Can the Bishop, having once refused a Clerk for Insufficiency, accept of him afterwards ?
A. Not if a new Clerk is presented.
Q. What further is required at Institution ?
A. Subscription, and Oaths.
Q. What Subscription is required ?
A. To the XXXIX Articles, and the three Articles in the thirty-sixth Canon, and to the Declaration of Conformity to the Liturgy of the Church of England.
Q. What Oaths must be taken at Institution ?
A. The Oaths of Supremacy and Allegiance. The Oath against Simony, as above. The Oath of Canonical Obedience : Ego A. B. juro quod praestabo veram & Canonicam Obedientiam Episcopo D. ejusque Succesoribus in omnibus licitis & honestis ; sic me Deus adjuvet. The Oath of Residence upon a Vicarage : Ego A. B. juro quod ero Residens in Vicaria mea, nisi aliter dispensatum fuerit a Dioecesano meo.
Q. What Penalty is there for taking Money for Institution, other than lawful Fees ?
A. The Person offending shall forfeit the double Value of one Year’s Profit, and the Living shall be void. 31 Eliz. c. 6.
Q. What are the lawful Fees for Institution ?
A. The Fees Ecclesiastical of every Kind are set down in a Table, confirmed by Archbishop Whitgift, according to the Use and Custom of every Diocese ; which Table is, or ought to be, set up in every Ecclesiastical Court and Registry, according to the 36th Canon.
Q. What Stamp is necessary for an Institution ?
A. A treble five Shillings.
A. What is the Difference between Collation and Institution ?
A. Collation is when the Bishop does, in his own Right, Institution, when at the Presentation of another, convey the Cure of Souls to the Incumbent : And therefore they have the same Effect with Regard to Spiritual Rights.
Q. Have they not the same Effects with Regard to Temporal Rights ?
A. Partly the same, and partly different. Presentation gives Jus ad Rem, Institution Jus in Re : Accordingly in Virtue of Collation, as well as Institution, which equally convey Jus in Re, the Clerk may enter into the Glebe, and take the Tithes ; tho’, for want of Induction, he cannot grant or sue for them. But herein they differ in their Temporal Effects : By Institution the Church is full, and Plenarty by six Months is pleadable against all Persons but the King ; and against the King also, claiming in Right of a common Person : But by Collation the Church is not full, nor is Plenarty by Collation pleadable ; but the right Patron may bring his Writ, and remove the Collatee at any Time, unless he be such Patron who hath also a Right to collate, for against him Plenarty by Collation is pleadable.
Q. What is the Reason why Collation doth not make a Plenarty ?
A. Becaue the Bishop would be Judge in his own Case, to the great Prejudice of Patrons ; and therefore the Bishop’s Collation, in this Respect, is interpreted no more than a Temporary Provision for Celebration of Divine Service, till the Patron do present.
Q. What is a Super-institution ?
A. When a Church being full by Institution, a second Institution is granted to the same Church.
Q. What is the Advantage of a Super-institution ?
A. It enables the Party who obtains it, to try his Title by Ejectment, without putting him about to his Quare Impedit.
Q. Is this Method often practiced ?
A. Many Inconveniencies following from hence, as the Uncertainty to whom Tithes should be paid, and the like, it has been deservedly discouraged.
Q. Where is a Super-institution, as such, properly to be tried ?
A. In the Spiritual Court, but not if Induction hath been given upon the first Institution.
Q. What Care is taken to preserve the Entries of Institution ?
A. Institution being given to a Clerk, a distinct and particular Entry thereof is to be made in the publick Register of the Ordinary.
Q. By whom is that Entry to be made ?
A. ’Tis the proper Business of the Register, who receives a Fee for doing it, and is punishable by his Ordinary for neglecting it : And if Patrons suspect that the Register of the Bishop will be negligent in keeping of them, they may have a Certiorari to the Bishop, to certify them into Chancery.
Q. In what Manner must the Entry be made ?
A. Not only that such a Clerk received Institution such a Day, and in such a Year, but if the Clerk was presented, at whose Presentation ; and whether it was in his own Right, or the Right of another ; and if collated or presented by the Crown, whether pleno jure, or per lapsum temporis.
Q. Of what Standing and Use is this Practice ?
A. It has been the Practice as far back as any Ecclesiastical Records remain, and is of great Importance, both to the Clerk and Patron : To the Clerk, whose Letters of Institution may be consumed or lost ; and to the Patron, whose Title may suffer in Time to come by the Want of proper Evidence, upon whose Presentation it was that Institution was given.
Q. When is the Clerk compleat Incumbent ?
A. Not till Induction, or, as the Canon Law calls it, Corporal Possession ; for by this he is seized of the Temporalties of the Church, so as to have Power to grant them, or sue for them ; by this, he is unquestionably intitied to plead, that he is Parson imparsonee, as Occasion shall require. And what Induction worketh in Parochial Cures, is effected by Instalment into Dignities, Prebends, &c. in Cathedral and Collegiate Churches.
Q. Is Inducion an Act of a Temporal, or a Spiritual Nature ?
A. The Books of Common Law every where declare it to be an Act of a Temporal Nature, because it instates the Incumbent in full Possession of the Temporalties, as these are opposed to the Spiritual Office or Function.
Q. What other Positions do they advance upon this Doctrine ?
A. That it is cognisable only in the Temporal Courts ; that Institution itself is not Cognisable in the Spiritual Courts after Induction ; and that a Grantee of one of the King’s Free Chapels, may be put in Possession by the Sheriff ; that the Arch-deacon, if he refuses or delays to induct, is not only punishable by Spiritual Censures, but is also liable to an Action of the Case in the Temporal Court.
Q. How is Induction effected ?
A. After Institution given, the Ordinary issues a Mandate for Induction to the Person who hath Power to induct.
Q. Who is this Person ?
A. The Archdeacon, jure communi : But if a Church is exempt from Archidiaconal Jurisdiction, as many Churches are, then the Mandate is directed to the Chancellor or Commissary ; and if it be a Peculiar, then to the Dean or Judge within such Peculiar.
Q. To whom is the Mandate directed, when the Archbishop collates jure devoluto, or sede vacante?
A. Not to the Officer of the Archbishop, but of the Bishop.
Q. Does the Archdeacon, or other Person to whom the Mandate is directed, induc in his proper Person ?
A. He may, if he thinks fit ; if he does not, he issues a Precept to others to do it, and this Precept is directed Universis & Singulis Rectoribus, Vicariis, Clericis, & Literatis infra Archidiaconatum, &c. ubicunque constitutis.
Q. What if the Bishop dies, or is removed after Institution given, and while a Mandate of Induction is either not issued or not executed — ?
A. The Clerk may repair to the Archbishop for a Mandate of Induction, because the Authority of the Person is determined, and that Authority devolv’d to the Archbishop as Guardian of the Spiritualties sede vacante ; and the same Rule takes Place if the Bishop is visited, and his Jurisdiction superseded.
Q. How is Induction to be given ?
A. According to the Tenor and Language of the Mandate. The Inductor taking the Clerk by the Hand, and laying it upon the Key, or upon the Ring of the Church-Door ; or if the Key cannot be had, and there is no Ring in the Door, on any Part of the Wall of Church or Church-yard uses these Words, or to the same Effect. “By Virtue of this Mandate, I do induct Thee into the real, actual, and corporal Possession of the Church of ——, with all its Rights, Profits, and Appurtenances thereunto belonging.” After which, the Inductor opens the Door, and puts the Person inducted into the Church ; who usually tolls a Bell, to make his Induction notorious to the Parish : Which done, the Inductor certifies the Induction so given on the Backside of the Mandate, Virtute hujus Mandati — die mensis — Induxi N.N. in realem, &c.
Q. What further Qualifications are necessary after Institution and Induction ?
A. By 13, 14 Car. II. c. 4. Every Incumbent who shall be presented, or collated, or put into any Ecclesiastical Benefice or Promotion, shall in the Church, Chapel, or Place of publick Worship belonging to his said Benefice or Promotion, within two Months next after that he shall be in the actual Possession of the said Benefice or Promotion, upon some Lord’s-Day, openly, publickly, and solemnly, read the Morning and Evening Prayers appointed to be read by and according to the Book of Common-Prayer, at the Times thereby appointed ; and after such reading thereof, shall openly and publickly, before the Congregation there assembled, make the following Declaration : I A. B. do here declare my unfeigned Assent and Consent to all and eveiy Thing contained and prescribed in and by the Book intitled, The Book of Common-Prayer, and Administration of the Sacraments, and other Rites and Ceremonies of the Church, according to the Use of the Church of England ; together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches ; and the Form or Manner of making, ordaining, and consecrating of Bishops, Priests, and Deacons : And this, upon Pain of Deprivation ipso facto.
Q. Is there no Allowance in Case of lawful Impediment ?
A. The Impediment being allowed and approved by the Ordinary, the Incumbent must do it within one Month after such Impediment removed.
Q. What else is required ?
A. He is also to read within three Months, upon Pain of Deprivation ipso facto, the Bishop’s Certificate of his having subscribed the Declaration of Conformity ; and also ( as more safe, and has been thought more agreeable to the Tenor of the Act ) he is to make the same Declaration again in Form before the Congregation, and that in Time of Divine Service, before the Service is quite ended. Ibid.
And by 13 Eliz. c. 12. Every Person, admitted to any Benefice with Cure, shall, within two Months, computing twenty-eight Days to a Month, read in the Time of Divine Service the XXXIX Articles, and declare his unfeigned Assent thereunto, upon Pain of Deprivation ipso facto, immediately upon Default.
Q. Is it necessary to have Witnesses of the Incumbent’s having done these Things ?
A. In a Suit for Tithes, or the like, tho’ the Parishioners may plead that the Parson did not read the XXXIX Articles, yet the Law presumes the Affirmative, and in that Case the Negative must be proved : However, it may do well, in a prudential Way, for every Incumbent to lay up proper Proofs of such Things, as are not otherwise to be proved by authentick Registers, viz. his reading of Common-Prayer, and Articles, and what concerns the Declaration, as the Law requires.
Q. Is the Deprivation, which is incurred by the Omission of any of these Things, to be notified by the Ordinary to the Patron ?
A. Yes, otherwise no Lapse shall accrue and he ought particularly to inform the Patron, that the Presentee had not read the Articles, &c. for which Default he is deprived, and that thereupon it belongeth to the Patron to present.
Q. Is there any thing further to be done by the Incumbent ?
A. He must take and subscribe the Oath of Abjuration, the next Term, in any of the Courts of Westminster-Hall, or at the next Quarter-Sessions after Admission, upon Pain of being dilibled ipso facto from enjoying such Benefice, and of the forfeiting five hundred Pounds, ( together with divers Incapacities ) for continuing to act after Neglect or Refusal. See the Oath of Abjuration, pag. 180.
Q. How is Possession of Sine-Cures attained ?
A. By the same Methods, if they are not Exempt, that other Rectories and Vicarages are, viz. by Presentation, Institution, and Induction.
Q. What are Donatives ?
A. Donatives are so called, because they are given and fully possessed by the single Donation of the Patron, in Writing ; without Presentation, Institution, or Induction.
Q. Whence did this Right in the Donor spring ?
A. From the Consent of the Bishop to some particular Lords and great Men, who were desirous to erect Places of Worship, for the Conveniencies of their Families, and did obtain those Privileges for them, and their Heirs, in Regard that the Places at first were considered only as private Domestick Chapels.
Q. Are there not other Ways of coming to the Possession of Benefices and Dignities, which in some Respects resemble Donation ?
A. Yes. As, 1. The Collation of a Bishop, without Presentation. 2. The King’s Grants of Prebends, ( as of Windsor and Westminster ) without Institution. 3. The Nominations to perpetual Curacies, without either Presentation, Institution, or Induction.
Q. Wherein do these differ from Donatives properly so called ?
A. Collations and Royal Grants, in that they are followed by Induction and Installment ; and Nominations to Curacies, in that the Persons nominated are to be authorized by the Licence of the Bishop, before they can legally officiate : Whereas Possession by Donation is not subject to any of these, but is effected by the sole and single Act of the Donor.
Q. Does the Grant of a Donative, being once made, create a Right as full and lasting as Institution and Induction ?
A. Yes : Nor can it be taken away, but by the Resignation or Deprivation of the Donee ; the first to be made to, the second by the Donor, both the Church and Clerk being exempt from Ordinary Jurisdiction.
Q. What was originally the Case of Perpetual Curacies ?
A. They were such Churches, the intire Revenue of which was united and annexed Mensis Monachorum : And not like other Appropriations, under the Tie of having perpetual Vicars appointed in them ; but left to be served by temporary Curates belonging to their own Houses, and sent out as Occasion requir’d. But when such Appropriations, together with the Charge of providing for the Cure, were transferred from Spiritual Societies to single Lay-Persons, who were not capable of serving them by themselves, and who, by Consequence, were oblig’d to nominate some particular Person to the Ordinary for his Licence to serve the Cure ; the Curates by this Means became so far perpetual, as not to be wholly at the Pleasure of the Appropriator ; nor removeable, but by the due Revocation of the Licence of the Ordinary.
Q. If the Patron of a Donative or Curacy perpetual do not nominate a Clerk, will it lapse to the Bishop ?
A. No ; but the Bishop may compel him to do it by spiritual Censures : And in perpetual Curacies, he may likewise sequester the Profits, and appoint another to take Care of the Cure, till the Patron shall nominate a fit and proper Clerk ; whether he can do so in Donatives is doubted, the Place being exempt from his Jurisdiction. But by 1. Geo. c. 1O. Sect. 6. If Cures augmented by the Governors of Queen Anne’s Bounty shall remain void for six Months, without any Nomination of a Person to serve the same, they shall lapse to the Bishop, &c. according to the Course of Law in Case of presentative Livings ; and, Sect. 14. all augmented Donatives shall be subject to the Visitation and Jurisdiction of the Bishop of the Diocese, provided that no Donative shall be augmented without the Consent of the Patron first had in Writing.
Q. If the Patron of a Donative doth Present to the Ordinary, and suffer Admission and Institution thereupon — ?
A. It is no longer a Donative, but for ever Presentative, and liable to lapse ; and subject to the Jurisdiction of the Ordinary, provided that such Presentation be made by the true Patron.
Q. What Qualifications are required in Clerks, on whom Donatives and perpetual Curacies are bestowed, in order to preserve and maintain their Possession ?
A. i. They must be Priests. 2. They are to subscribe the XXXIX Articles, if the Donative be, as all perpetual Curacies are, with Cure, and that before the Ordinary. 3. To subscribe the Declaration, before the Ordinary ; and if it be a Cure, to take a Certificate of such Subscription. 4. To take the Oaths of Allegiance and Supremacy : In Donatives, before the Donor ; in perpetual Curacies, before the Ordinary. 5. To read the Common-Prayer, and give Assent. 6. To read and assent to the XXXIX Articles, if it be a Place with Cure. 7. To read the Certificate, and make Declaration. 8. To take the Oath of Abjuration. And all these in the same Manner as directed upon Institution and Induction.
Q. What Penalty is there upon corrupt Resignation of Benefices ?
A. If any Incumbent of any Benefice with Cure of Souls, shall corruptly exchange or resign the same, or directly or indirectly take any Pension, Sum of Money, or Benefit whatever, for the same, both the Giver and the Taker shall lose double the Value of the Sum given ; one Half to the King, the other to the Informer : 31 Eliz. c. 6.
Q. Are all indirect Bargains, not only for Money, but other Considerations, excluded in Resignation ?
A. The Words of Resignation have always been pure, sponte, absolute, & simpliciter : And therefore no Condition is to be expressed in it, unless when the Resignation is made Causa Permutationis ; only there it admits of this Condition, if the Exchange shall take full Effect, and not otherwise. So that after two Persons have procured Licence from the Ordinary, to treat of an Exchange, ( of which Sort we meet with many upon our Books ) and have treated, and agreed, and signified their Agreement, by Instrument in Writing, to the Ordinary, and then Resign, and are cross-presented by the Patrons, and one is both instituted and inducted, and the other is only Instituted, and dies, or refuses to finish ; in this Case, tho’ they have proceeded so far, the Resignation, and all that followed upon it, shall be void ; and both, ( if both are living ) may return to their former Benefices, upon the Foot of former Possession : Or if one dies before he is Inducted, and after the Induction of the other, this Induction, and all that went before, shall be void, because the Exchange was not fully executed during the Lives of the Parties.
Q. To whom must Resignation be made ?
A. To the Person who hath Power to admit it ; and that is, in general, to the Person who granted Admission to the Benefice resigned. It can only be made to a Superior, therefore a Bishop cannot resign to a Dean and Chapter ; but it must be to the Metropolitan, from whom he received Confirmation and Consecration : And it must be made in Person, and not by Proxy.
Q. What is the common Way of resigning in Practice ?
A. Either by personal Appearance before the Ordinary, or elsewhere before a Publick Notary, but an Instrument immediately directed to the Ordinary, and attested by the Notary, in order to be presented to the Ordinary, by such proper Hand as may pray his Acceptance.
Q. Is a Resignation valid, if it be not accepted by the proper Ordinary ?
A. No : That is, no Person appointed to a Cure of Souls, can quit that Cure, or discharge himself of it, but upon good Motives, to be approved by the Superior, who committed it to him : ( for it may be, he would quit it for Money, or to live idly, or the like. ) And this is the Law, as well of the State, as of the Church ; as appears by that plain Resolution, That all Presentations made to Benefices resigned, before such Acceptance, are void : And there is no Pretence to say, that the Ordinary is obliged to accept ; since the Law, which makes him Judge of the Fitness or Unfitness of accepting, hath appointed no known Remedy if he will not Accept ; any more, than if he will not Ordain.
Q. Is there no Distinction in this Case between Cure of Souls, and a Sine-Cure ?
A. Lyndwood makes this Distinction : Circa praemissa tamen puto distinguendum, inter eum qui resignat Beneficium simplex, tale viz. quod non habet Curam animarum, & eum qui resignat Beneficium Curatum ; ut videlicet in primo casu cum ejus solius intersit, statim in ejus prejudicium teneat Resignatio, etiam absque consensu Superioris; secus tamen ubi imminet Cura Animarum, quia jam non solum ejus interest, sed etiam aliorum quibus tenetur praedicare ; unde in hoc casu necessaria est Ratihabitio Episcopi, vel ipsius qui potest de Jure vel Consuetudine talem Resignationem admittere.
Q. Is the Ordinary obliged to give the Patron Notice of his Acceptance of the Resignation ?
A. Yes, nor shall Lapse incur but from the Time of Notice given ; insomuch, that if the Bishop, who accepted the Resignation, dies before Notice given, the six Months shall not commence till Notice is given, by the Guardian of the Spiritualties, or by the succeeding Bishop, with whom the Act of Resignation is presumed to remain.
Tit. XXXV.
What is required of the Incumbent with Respect to First-fruits ?
A. By 26 H. 8. c. 3. Every Person, before actual or real Possession, or meddling with the Profits of his Dignity, Benefice, or Promotion spiritual, is to pay, or to agree and compound for his first Fruits, according to the Valuation of his Benefice in the King’s Books.
Q. To whom are First-Fruits and Tenths payable ?
A. Before the 26 Hen. VIII. they were paid to the Pope ; but by a Statute in that Year, to the King : The Repeal of this Statute by Queen Mary, was repealed by 1 Eliz. c. 4. whereby the First-fruits, &c. were restored to the Crown ; and so continued, till by 2, 3 Ann. cap. 11. it was enacted, That the Queen might by Letters Patents incorporate such Persons as she should appoint, to have a common Seal, and perpetual Succession ; and settle upon the said Corporation the First-fruits and Tenths of all Benefices spiritual, for the Augmentation of the Maintenance of Ministers of the Church of England, officiating in any Church or Chapel of England, Wales, or Berwick upon Tweed, not sufficiently provided for.
Q. How is Composition to be made for First-fruits ?
A. One Bond only is to be taken for the Payment of them, at four several half-yearly Payments, at certain Days, upon the last Payment the Bond is given up. 2, 3 Ann. c. 11.
Q. What if the Incumbent does not enjoy the Benefice two Years ?
A. If he die, or be legally outed, before the End of a Year from the Avoidance, having continued half a Year, he, his Executors, Administrators, and Sureties, shall only pay a fourth Part of the First Fruits ; if he continue a Year, half ; if a Year and a half, three Parts ; if two Years, the whole. 1 El. c. 4.
Q. What Ease and Relief have the Archbishops and Bishops in the Payment of First-Fruits ?
A. They have four Years allowed for Payment, a fourth Part every Year ; and in Case of Death or Translation before the End of that Term, proportionable Abatement shall be made. 6 Annae, cap. 27.
Q. Are the Tenths to be paid the first Year, as well as the First Fruits ?
A. The Tenths for that Year are to be deducted and paid by themselves. 27 H. VIII. c. 8.
Q. At what Time are the Tenths due ?
A. Yearly at Christmas ; but Allowance is given to the Clergy, so that if they pay at any Time before the last of April, they are safe. 3 Geo. I. c. 10. Sect. 2.
Q. What Penalty is there for not paying Tenths ?
A. Any Incumbent not paying Tenths forty Days after Demand, after such Default thereof certified into the Exchequer, shall be ipso facto deprived of all his Promotions. 26 H. VIII. c. 3.
Q. Do Successors stand chargeable with Arrears of Tenths due from their Predecessors ?
A. Yes ; but there is a Clause of Remedy by Distress, &c. i.e. he may distrain the Goods of his Predecessor, as shall be upon the Dignity, Benefice or Promotion, and retain them till Satisfaction, and if the Tenths be not paid in twelve Days, he may sell them, and in Default of Distress, he may proceed against the Predecessor, or his Executor, by Bill in Chancery, or Action of Debt. 27 Hen. VIII. c. 8.
Q. When does the Year for which the First-Fruits are to be paid, commence ?
A. From the Avoidance or Vacation of the Benefice : In Bishopricks from the Restitution of the Temporalties. 6 Annae, cap. 27.
Q. What Ecclesiastical Benefices are discharged from Payment of First-Fruits and Tenths, by 5 Ann. c. 24?
A. All such as exceed not 50l. clear yearly Value ; unless where the Tenths of any Benefice were granted to any Person in Perpetuity, before the third Day of November, in the third Year of her Reign.
Q. How was this Valuation to be made ?
A. The Bishops of every Diocese, Guardians of the Spiritualties sede Vacante, and Ordinaries of Peculiars, were by the Oaths of two or more credible Witnesses, and by other lawful Ways, impowered to inform themselves of the improved yearly Value of every Benefice with Cure of Souls within their respective Jurisdiction, the clear yearly Value whereof did not exceed fifty Pounds, and to certify the same into the Exchequer ; which Certificate filed there, Thould ascertain the yearly Value of the Benefice to be discharged.
Q. What Penalty is there upon Neglect of Compounding for the First-Fruits ?
A. Any Minister entring into Possession, or meddling with the Profits before such Composition, shall pay to the King double the Value of the First-Fruits. 26 Hen. VIII. c. 3.
Q. Is the Lessor or the Lessee chargeable with First-Fruits and Tenths ?
Tit. XXXVI.
What Obligation is there upon Incumbents to be Resident upon their Benefices by Statute ?
A. By 21 Hen. VIII. c. 13. He that is wilfully absent from his Benefice for one Month together, or two Months in the whole Year, though at different Times, shall forfeit for every such Default ten Pounds, one half to the King, the other to him who will sue for it — but Information must be brought only in the King’s Courts. And by 13 Eliz. c. 20. He that is absent from his Benefice with Cure, above eighty Days in the Year, vacates any Lease, or other Bond or Covenant made, whereby he lets out his Benefice, or any Part of it, and forfeits a Year’s Profit of his Benefice, to be distributed by the Ordinary among the Poor of the Parish. But, Note, that the Lease is not void ab initio, but only from the Time of such Absence.
Q. What is accounted Residence upon a Benefice ?
A. It has been adjudged, that he who upon all Occasions resorts to his Parish, and serves the Cure thereof duly, though he does not dwell in the same Parish, saves himself from the Penalties of the Stat. 13 Eliz. c. 20. But nothing is sufficient Residence by 21 Hen. VIII. c. 13. but dwelling in the Parsonage or Vicarage House, if there be one.
Q. What Persons are excused from Residence ?
A. By 21 Hen. VIII. c. 13. Chaplains to the King, Royal Family, and Nobility, or other great Persons, mention’d Tit. XXXVII. are excused from Residence, during their Attendance upon those who retain them : Clerks employed in the King’s Service during such Time as they are in Service. And by 25 Hen. VIII. c. 16. all the twelve Judges, the Chancellor of Exchequer, and the Attorney and Solicitor General, may Qualify one Chaplain, and excuse him from Residence during Attendance. And by 33 Hen. VIII. c. 28. the Chancellor of the Dutchy of Lancaster, and Groom of the Stole, and some others, have the same Privilege ; but none of the Persons mentioned in these two last Acts, can qualify a Chaplain to hold a Plurality.
Q. Who else are excused beside Chaplains ?
A. He that has two Benefices, and resides upon one of them, is excused from residing upon the other by equitable Constrution : Also he that has a Dignity and Benefice, by residing upon one, is excused from Residence on the other, by the Words of the Statute ; he that is without Fraud under Confinement for Debt, or removes for his Health by the Advice of his Physicians ; he that is employed Abroad in the King’s Service, or is under an Injunction from the Lord Chancellor to attend a Suit ; Heads and Professors in the University, and Clergymen under forty Years of Age residing there, and hearing the Lectures, and doing Exercise in Person he that resides upon a Prebend ; the Master of the Rolls, and Dean of the Arches, all Chancellors or Commissaries of Archbishops or Bishops, Masters in Chancery, and Advocates of the Arches, being spiritual Men, during their Employment in their respective Offices.
Q. Does Residence upon one Benefice totally excuse from Residence on the other ?
A. No : Every Pluralist, by Special Proviso’s in the Body of his Dispensation, is obliged to reside two Months in every Year on that Benefice from which he is absent for the most Part, and in both his Churches to preach every Year thirteen Sermons.
Q. Is there any Difference between a Rector and a Vicar, in Point of Obligation to Residence ?
A. They are both upon the same Foot by Statute Law ; only the Vicar is sworn to Residence, the Rector is not : But this Oath is with a Condition, nisi aliter dispensatum fuerit ; so that if the Vicar be dispensed with, there is in this Respect no Difference between them.
Q. How is Non-residence punishable by Ecclesiastical Censures ?
A. Tho’ the Bishop may content himself with Sequestration, and other Censures of an inferior Nature, which we find sometimes inflicted, yet he may proceed, and that hath been the more frequent Punishment, to Deprivation.
Q. What Care is to be taken of a Benefice, whereon a Pluralist is non-resident ?
A. Every beneficed Pluralist shall have his Benefice supplied by a Curate, that is a sufficient and licensed Preacher. Canon 41.
Q. What Privileges are allowed to resident Curates ?
A. By 13 Eliz. cap. 20. a resident Curate may take a Lease of the Parsonage, which Nobody else can : If he is desirous to teach School, a Licence shall be granted to no other ; provided that he shall have no Licence in Country Towns where there is a publick School founded, and a Master allowed already. Canon 78.
Q. What Qualifications are required in Curates ?
A. No Curates shall be permitted to serve in any Place, without Examination and Admission of the Bishop, or Ordinary ; nor remove, without Testimonials of the Bishop of the Diocese, or Ordinary of the Place, whence they came, of their Honesty, Ability, and Conformity to the Ecclesiastical Laws of the Church of England. Canon 58.
Q. Can a Curate serve more than one Church or Chapel upon one Day ?
A. Not except that Chapel be a Member of the Parish-Church, or united thereto ; or unless the said Church or Chapel be not able, in the Judgment of the Bishop or Ordinary, to maintain a Curate. Ib.
Q. What Care is taken for the Allowance of temporary Curates ?
A. By 12 Ann. c. 2. If any Rector or Vicar shall present any Curate to the Bishop or Ordinary to be licensed, to serve the Cure in his Absence, the Bishop, having Regard to the Greatness of the Cure, and Value of the Living, shall, before granting such Licence, appoint, under his Hand and Seal, a Stipend not exceeding 50l. per Annum, nor less than 20l. to be paid at such Times as he shall think fit, by the said Recor or Vicar.
Q. Is a Curate, who is not licenced by the Bishop, and legally qualified, a Curate in the Eye of the Law ?
A. No, and therefore a Lease to such a one is null ; nor can he, without some special Agreement, recover his Stipend of the Incumbent.
Q. Can a Vicar have a Curate ?
A. There is an old Saying, Vicarius non habet Vicarium, a Vicar hath not a Substitute ; but by long Practice, ’tis now as allowable for a Vicar to have a Curate as a Rector.
Q. What Provision is made when the Incumbent is rendered uncapable of the Administration of his Cure, by any habitual Distemper of Mind, as Frenzy, Lunacy, &c. – ?
A. The Ordinary may appoint a Coadjutor to receive the Profits, and discharge the Burdens ; with an Obligation to be accountable to him, when called upon : Coadjutors, being always Clergymen, might also have the spiritual Part committed to them ; but this was no Part of the Office of a Coadjutor as such, which did anciently relate to the Temporalties only.
Tit. XXXVII.
What Restraint is there upon Pluralities by Statute ?
A. By 21 Hen. VIII. c. 13. any Person having a Benefice of eight Pounds or above per Ann. in the King’s Books, if he be instituted and inducted, ( it has been adjudged, if he be instituted only ) into another, no Matter of what Value, or whether rated at all in the King’s Books, without Dispensation, the first Benefice shall be void.
Q. Are Benefices under 8l. per Ann. in the King’s Books void by the Acceptance of a second Benefice ?
A. By the Common Law they are only voidable. Tho’ the Patron may present, if he will, yet no Lapse incurs if he do not present : Unless the Bishop void the Church by Sentence declaratory, and give Notice thereof to the Patron ; and then it is agreed on all Hands, that the Patron must present at his Peril within the six Months.
Q. Who are qualified for Dispensation ?
A. By 21 Hen. VIII. c. 13. Spiritual Persons of the King’s Council may have Dispensation for three Benefices, and all Chaplains of the King, Queen, and Royal Family for two ; likewise every Archbishop may have eight Chaplains, and every Bishop, six ; every Duke, six ; every Marquess and Earl, five ; every Viscount, four ; the Lord High Chancellor for the Time being, every Baron and Knight of the Garter, three ; every Dutchess, Marchioness, Countess, and Baroness, being Widows, two ; the Treasurer and countroller of the King’s House, the King’s Secretary and Dean of his Chapel, the King’s Almoner and Master of the Rolls, two ; the Chief Justice of the King’s-Bench, one ; the Warden of the five Ports, one. All which Chaplains may purchase Licence or Dispensation, to receive, have, and keep two Benefices, with Cure of Souls.
Also the Brethren and Sons of Temporal Lords, born in Wedlock, and the Brethren and Sons of Knights ; but not of Baronets, which Dignity hath been created since the making of this Act.
Also Doctors and Batchelors of Divinity and Canon Law in any of the Universities of this Realm, and not by Grace only, i.e. having performed the statutable Exercises in order to such Degree, without any Favour or Dispensation therein, may have Licence to hold two Benefices with Cure.
Q. Can the King’s Chaplains have Dispensation only for two Benefices ?
A. They may have as many of the King’s Gift as he shall please to give them, without incurring the Penalty of this Statute.
Q. If a Chaplain be removed from the domestick Service of the Family — ?
A. He remains Chaplain at large, and so a Chaplain within this Statute.
Q. Can a Chaplain, once legally qualified be discharged, to make Way for others ?
A. No.
Q. If a Chaplain retained above the Number be promoted, before those who were duly retained, according to the Statute, shall such Retainer above the Number avail him ?
A. No, nor divest those, who were duly retained, of the Right of purchasing Dispensation : Nor shall he ever have the Benefit of such Retainer, even though the rest are dead ; unless it be renewed upon the Death of one of those who made up the statutable Number, inasmuch as the Retainer was null ab Initio.
Q. If a Person is qualified to retain under several Capacities, as Baron and Warden of the Ports, Baron and Bishop, &c. — ?
A. He can only qualify in his highest Capacity.
Q. Is the Retainer of Noblewomen, being Widows, ended by their Marriage ?
A. No ; the Retainder is good after Marriage, and that whether they marry under the Degree of a Baron or no.
Q. Can Dispensation be had for such a Number of Benefices, without Specification, or with an additional Power to exchange and take others, keeping within the Number, in point of Possession, at one and the same Time ?
A. Such have been heretofore granted, and the Statute seems capable of such a large Interpretation ; but the latter and safer Way hath been, to grant Dispensation only for preventing the Voidance of a Benefice in Possession by taking a second.
Q. Can Minors retain Chaplains within this Act ?
A. Yes.
Q. If the Person who retains dies, or is removed, or is attainted, before any Effect of the Retainer — ?
A. It is gone, and shall have no Effect afterwards ; but if it taketh Effect before, it continues good notwithstanding Death, or Attainder, or Removal.
Q. How are Dispensations for Pluralities limited by the Canon ?
A. None shall have Dispensation, who is not Master of Arts, at least, in one of the Universities, and a licensed Preacher : He shall likewise be by good and sufficient Caution bound to make his personal Residence in each of his Benefices, for some reasonable Time in every Year ; provided also that the said Benefices be not more than thirty Miles distant asunder, and that he have under him a sufficient Curate in the Benefice upon which he is not ordinarily Resident. Canon 41.
Q. Cannot Benefices be held above thirty Miles distant ?
A. It was usual heretofore to obtain Licence from the King, to take two Benetices beyond the Distance of thirty Miles, by Way of Dispensation with this Canon : And in such Cases we find this Clause in Faculties granted by the Archbishop, Licentia Regia pro distantia extra triginta Milliaria prius nobis concessa, and the like ; by reason of which Licence and Clause, they have been usually called Royal Dispensations : But very few ( if any ) such have been granted since the Revolution. And in Regard to Statutes, this Practice is expressly prohibited ; it being enacted, that no Dispensation by non obstante of or to any Statute, or any Part thereof, shall be allowed ; but that the same shall be held void, and of none Effect, except a Dispensation be allowed of in such Statute.
Q. What Method must a Presentee take to obtain Dispensation ?
A. If he is a Chaplain, he must have his Qualification registered in the Faculty-Office ; or if qualified by his Degree, an Attestation of it from the Register of the University ; ( and so he must if he be but Master of Arts. ) He must also have Letters from the Bishops in whose Dioceses the Benefices are, if in two ; or the Bishop of the Diocese, if in the same signifying their Consents, and certifying the Value of the Livings, both in the King’s Books and the reputed Value, also the reputed Distance. With these, and the usual Testimonials of his good Behaviour, &c. he must wait upon the Archbishop, and Petition, to which the Archbishop gives his Fiat : His Dispensation is, upon that, made out at the Faculty-Office ; where he gives Security, as above, for his Residence, &c. And after, he must go to the Lord Chancellor, for Confirmation under the Broad Seal. It may not be improper to have Certificates and Letters testimonial, as well for the Lord Chancellor as the Archbishop : But I think they are not generally required.
Q. What Stamp is required for a Dispensation ?
A. Treble forty Shillings.
Q. What is a Commendam ?
A. A Faculty of Retention and Continuation of a Benefice in the same Person and State wherein it was, notwithstanding something intervening, as a Bishoprick, or the like, that without such a Faculty would have avoided it.
Q. How many Sorts of Commendams are there ?
A. Two, a Commendam recipere, and a Commendam retinere.
Q. Why is such a Faculty or Dispensation necessary ?
A. Because the Possession of a Bishoprick doth of common Right void all other Promotions.
Q. How soon must the Commendam come to continue the Possession ?
A. It being the Doctrine both of Canon and Common Law, that former Promotions are not vacant but by Consecration in Case of Creation, and by Confirmation in Case of Translation ; if such Dispensation comes before these, it comes Time enough to continue the Possession ; but otherwise it comes too late.
Q. In what Manner are Commendams to be granted ?
A. By the King, either singly and by himself, as many of the Law Books hold ; or at least by Command to the Archbishop to exert the Right of Dispensation vested in him by Statute 25 Hen. VIII. c. 21. as the ordinary Method is.
Q. Can Headships of Colleges and Hospitals be granted in Commendam ?
A. Yes, as well as Dignities and Benefices.
Q. Can a Bishop take a Commendam in his own Diocese ?
A. Yes, being under the Correction of the Metropolitan.
Q. Is the Patron’s Consent necessary before a Commendam can be granted ?
A. Yes. In a Commendam retinere, the King, who is Patron by Promotion, signifies his Consent by his Mandate to the Archbishop to grant Dispensation ; and if the Commendam be by Recipere, it is either to take a Promotion in the Bishop’s own Gift, and so his Acceptance is a Consent ; or in the Gift of some other Patron, and then the Consent of such Patron must be given in an authentick Manner, and mentioned in the Dispensation.
Q. Doth a Commendam capere ( i.e. a Dignity or Benefice taken by a Bishop after Consecration, and without Institution ) create a proper Incumbency ?
A. No ; the Incumbency created by a Commendam capere seems to be with regard to the Profits only ; and so far it is still understood to give a Right, as may be gathered from the Language of such Commendams, which is absque ulla institutione, inductione, &c. in Commendam acceptare — ac de Fructibus, Redditibus, caeterisque Juribus & Emolumentis disponere, ac in proprios tuos usus convertere, &c.
Q. Of how many Kinds are Commendams, with Regard to the Extent of Time ?
A. Either Temporary or Perpetual, at the Pleasure of the Prince : When temporary, the precise Time is expressed and limited in the Dispensation ; when perpetual, the Stile is Quamdiu vixeris & eidem Episcopatui praefueris.
Q. Can a Commendam Temporary in Retinere be prolonged or removed ?
A. Yes ; and being expired, a new Commendam of the same Benefice may be granted in Perpetuity by Capere.
Q. If the Commendam be limited to a certain time, can the Crown present at the Expiration of it ?
A. Yes, by Prerogative Royal ; unless the commendatory Bishop dies, or resigns, before the Expiration of the Term ; for then the Turn of the Crown is served, and the Patron shall present : And so it is likewise served, if the Commendam was originally unlimited, that is, during the Life of the Person, and his Possession of such See.
Q. If a Bishop who is possessed of a Commendam is translated to another See — ?
A. The same Commendam may be continued, but it must be by a new Dispensation.
Q. What is the Design of Commendams ?
A. To support the Dignity of the Episcopal Character, which since the Time of the Reformation hath greatly needed Support in many Sees.
Tit. XXXVIII.
Where poor Parsonages are contiguous, how may they be united ?
A. An Union of two Churches, or of a Church and Chapel, one not above 6l. Value in the King’s Books, and not above a Mile distant, may be made with Assent of Ordinary, Incumbents, and Patrons, in such Manner and Forms as in Writing, under their Hands and Seals, shall be set forth. 37 Hen. VIII. c. 21.
Q. Is the Power of Ordinaries to judge of the Fitness or Unfitness of Unions, ( which they had by the Common Law ) taken away by this Statute, and restrained to the Circumstances here mentioned, beyond which no Union at all can now be made ?
A. No : The Statute is in the Affirmative only, without the Addition of a Negative, in which Case the Common Law is never taken away ; and therefore the Rule of Unions, and Power of making them, which the Ordinaries held at Common Law, continue as before, notwithstanding this Statute.
Q. What Care is taken upon an Union or Consolidation of Churches to prevent a Diminution of the First-Fruits and Tenths ?
A. ’Tis provided that they should be paid by both, according to their respective Valuations.
Q. Could such Union be made by Virtue of this Act in Cities or Towns Corporate ?
A. No, not without the Consent of the Mayor, Sheriffs, and major Part of the Commonalty. But by 17 Car. II. c. 3. in every Corporation the Bishop may unite two or more Churches, with the Consent of the Mayor, Aldermen, and Justices of the Peace, Bailiff or Bailiffs, or other Chief Officer or Officers, or the major Part of them, and of the Patrons, &c. and determine which shall be the Place of Worship, and which the Church Presentative, and all Tithes and Duties shall be paid to the Incumbent of the Presentative Church.
Q. Would not such Union create Confusion in the Parish Rates, &c.
A. The Parishes shall continue distinct as to all Rates, Parochial Charges, and Duties, notwithstnding ; and Churchwardens shall be elected and appointed for each Parish. First-Fruits and Tenths, Procurations and Pensions to continue as before.
Q. What Exceptions are there to this Act ?
A. No Union shall be valid till registered in the Register Book of the Bishop of the Diocese, nor where the Revenue is in all above 100l. per Annum clear, unless the Parishioners, or the major Part of them, desire it. The Incumbent of a Church united must be a Graduate.
Q. One of the Churches united being Demolished, are the Parishioners bound to pay towards the Repairs and Ornaments of the other ?
A. Yes, such Share as the Archbishop or Bishop, who shall make the Union, shall direct, and for want of such Direction, one third Part ; but if both are standing, then the Repairs and Ornaments shall be provided for as they were at Common Law. i.e. by the Parishioners of each Parish respectively. 4, 5 Will. & Mar. cap. 12.
Q. Upon what good and Canonical Reasons should the Union or Consolidation of Churches be founded ?
A. The principal Reasons assigned by the Canon Law, are, Propter Hospitalitatem, propter Vicinitatem locorum, propter Parochianorum defectum, propter Paupertatem seu Exilitatem. Which Circumstances are specially enquired into before the Union, and ( some or all, as the Case is ) recited in the Preamble to the Act of Union.
Q. Can Livings be united of greater Value than what is expressed in the Statute ?
A. Yes ; the Common Law of Unions is not taken away nor altered by them.
Q. Is the King’s Consent necessary to an Union ?
A. No.
Q. Are Unions in Futuro good, as well as in praesenti ?
A. Yes ; and therefore if two Churches are full, and one is duly united to the other in Futuro, when either shall become void, the surviving Incumbent may enter upon the void Living, without any other Title than that which he received by the Act of Union.
Q. Does Union make any Alteration in the Nature of Advowsons ?
A. No ; the Nature of Advowsons continues the same ; as, if one be Appendant, and the other in Gross, and that which is Appendant is made the Presentative Church, and the Patron of the Church in Gross hath the first Turn ; yet shall not the whole Advowson be in Gross, but it shall remain Appendant for his Turn, who was Patron of the Advowson Appendant ; and in Gross for his Turn, who was Patron of the Advowson in Gross.
Q. May a second Benefice be taken by Dispensation within the Statute of Pluralities, where an Incumbent hath already two Churches united ?
A. Yes ; because by Union they are made but one Ecclesiastical Benefice.
Q. Is Division of Churches allowed ?
Tit. XXXIX.
How is the Realm of England divided in Respect of the People ?
A. “The Realm of England is an Empire governed by one supreme Head and King, having Dignity and Royal State of the Imperial Crown of the same, unto whom a Body Politick, compact of all Sorts and Degrees of People, divided in Terms, and by Names, of Spiritualty and Temporalty, been bounden and owen to bear next to God, a natural and humble Obedience.” 28 Hen. VIII. c. 12.
Q. What is the Business of the Body Spiritual ?
A. “To declare and determine all Doubts when any Cause of the Law Divine happens to come in Question, and to Administer all such Offices and Duties, as to their Rooms Spiritual doth appertain : For the due Administration whereof, the King’s most noble Progenitors have sufficiently endowed the said Church with Honour and Possessions.” Ibid.
Q. What is the End of the Law Temporal ?
A. “For Trial of Property of Lands and Goods, and for the Conservation of the People of this Realm in Unity and Peace without Rapine and Spoil. Ibid.
Q. By whom is this Law administred ?
A. “By sundry Ministers and Judges of the other Part of the said Body Politick, called the Temporalty. Ibid.
Q. Do these Authorities and Jurisdictions interfere with each other ?
A. “No, they conjoin together in due Administration of Justice, the one to help the other.” The Consequence of which mutual Assistance is ( with Regard to Legal Constitution ) what my Lord Coke says ; the Temporal and the Ecclesiastical Law are so coupled and interwoven, that the one cannot subsist without the other.
Q. How does the Spiritual Court assist the Temporal ?
A. As, when Issue is joined in the Temporal Court, upon the Loyalty of Marriage, general Bastardy, or the like ; the King writes to the Bishop of that Diocese, as mediate Officer and Minister to his Court to certify it.
Q. How doth the Temporal Court give Assistance to the Spiritual ?
A. As, if any Cause be depending in the Spiritual Court, and it is suspected that the Party prosecuted will fly beyond Sea, they may have a Ne exeat regnum : And so, if Sentence in the Ecclesiastical Court is disobeyed, and the Party excommunicated, the Writ for taking and imprisoning the Offender goes of Course.
Q. What Styles may Bishops and other Spiritual Persons exercising Jurisdiction Ecclesiastical, lawfully use ?
A. By the Statute of 1 Edw. VI. c. 2. all Summons’s and Citations, and other Ecclesiastical Process was to be made in the King’s Name, with the Teste of the Archbishop or Bishop, and the King’s Arms was to be put in their Seal of Office : But that Act was repealed by an Act of 1 Eliz. reviving 25 Hen. VIII. c. 20. According to the Tenor of which revived Statute, Archbishops and Bishops, elected, confirmed, and consecrated, shall be obeyed in all Manner of Things, according to the Name, Title, and Dignity, that they shall be chosen and presented to, and Do and Execute, in every Thing and Things, touching the same, as an Archbishop or Bishop of the Realm, without offending the Prerogative Royal of the Crown, and the Laws and Customs of this Realm, might at any Time heretofore do. Accordingly, when in the Reign of King Charles I. Attempts were made to place the Ecclesiastical Jurisdiction upon the Foot of the said Statute of Edw. VI. as still in Force, a Proclamation was issued to vindicate the legal Proceedings of his Majesty’s Ecclesiastical Courts and Ministers, from the unjust and scandalous Imputation of invading or intrenching on his Royal Prerogative, in Pursuance of the Opinion of the Twelve Judges, to whom this Matter was referred, and who did unanimously concur and agree, and certified it under their Hands, that Processes might issue out of the Ecclesiastical Courts in the Name of the Bishops, &c. and that the Statute 1 Edw. VI. c. 2. which enacted the contrary, was not in Force.
Q. What seems to have been the plain Intention of the King and Parliament in that Statute ?
A. No more than that the Appointment and Consecration of Bishops should be independent from the Pope, and that they should renounce his Authority and, having done that, should proceed in the Exercise of the Episcopal Office, in the same Manner as their Predecessors had done.
Q. Are Spiritual Persons disabled from exercitng Temporal Jurisdiction ?
A. They were by 16 Car. I. c. 27. but that Act was repealed 13 Car. II. c. 2. as prejudicial to the Rights of Parliament, and contrary to the Laws of the Land, and as found by Experience to be inconvenient.
Tit. XL.
May General Councils be gathered together without the Commandment and Will of Princes ?
A. No. Article 21.
Q. Of what Authority are their Determinations ?
A. Forasmuch as they be an Assembly of Men whereof all be not governed with the Spirit and Word of God, they may err, and sometimes have erred, even in Things pertaining to God. Wherefore Things ordained by them as necessary to Salvation, have neither Strength nor Authority, unless it may be declared that they be taken out of Holy Scripture.
Q. Is it lawful for any Sort of Ministers and Lay Persons, or either of them, to make Canons without the King’s Authority ?
A. No ; and to affirm that it is, shall be Excommunication ipso facto. Canon 12.
Q. What is the true Church of England by Representation ?
A. The Sacred Synod of this Nation in the Name of Christ, and by the King’s Authority assembled ; and to affirm the contrary shall be Excommunication. Canon 139.
Q. What does the Convocation or Sacred Synod consist of ?
A. The Court of Convocation of the Clergy ( assembled by Virtue of the King’s Writ in a National Synod ) consists of the whole Clergy, either present in Person or by Proxies.
Q. How many Houses are there of Convocation ?
A. There is an Upper House, where the Archbishops and Bishops sit ; and a Lower House, where Deans, Archdeacons, and Proctors for the Chapters and Diocesan Clergy do sit.
Q. How many Proctors are there for the Diocesan Clergy ?
A. In the Province of York, two for every Archdeaconry ; but in the Province of Canterbury two only for every Diocese.
Q. Who is President of the Convocation ?
A. The Archbishop of Canterbury ; who Prorogues and dissolves it at the Discretion of the King.
Q. How is the Jurisdiction of the Convocation exercised ?
A. In making Canons with the King’s Licence and Assent, and in examining and censuring Heretical or Schismatical Books or Persons.
Q. Are Canons obligatory upon those who are absent, as well as those who are particularly assembled ?
A. Yes, Synods conclude as well the Absent as Present. Canon 140.
Q. Are the Laity bound by the Canons ?
A. The Convocation, with the Licence and Assent of the King under the Great Seal, may make Canons for the Regulation of the Church, and that, as well concerning Laicks as Ecclesiasticks. All that is required of them in making new Canons, is, that they confine themselves to Church Matters, and under proper Restraints ; and a Canon so made is the Law of the Kingdom, as well as an Act of Parliament.
Q. What Restraints are they under as to the Matter of the Canons ?
A. No Canons, Constitutions, or Ordinances, shall be made or executed by Authority of the Convocation, which shall be contrariant or repugnant to the King’s Prerogative Royal, or the Customs, Laws, or Statutes of this Realm. 25 Hen. VIII. c. 19.
Q. What Penalty do they incur by acting without the King’s Licence ?
A. They shall not presume to attempt, allege, claim, or put in Use any Constitutions or Ordinances, Provincial or Synodal, in their Convocations, nor to Exact, Promulge or Execute any, in Time to come, without the King’s Royal Assent and Licence, upon Pain of Imprisonment, and Fine at the King’s Will. Ibid.
Q. What Privileges have the Clergy in their Attendance upon Convocation ?
A. They and their Servants, coming, tarrying, and returning from Convocation, shall have the same Privilege from Arrests, as Members of Parliament. 8 Hen. VI. c. 1.
Q. In what Case does an Appeal lie to the Upper House of Convocation ?
A. In Causes Ecclesiastical, that touch the King, an Appeal may be made from the Court of Arches or Audience of any Archbishop, to the Upper House of Convocation, whose Judgment shall be final. 24 Hen. VIII. c. 12.
Q. In what Manner do the Clergy contribute to the publick Taxes ?
A. They used formerly to tax themselves in Convocation, granting Aids and Subsidies, for their own Body ; ’till three or four Years after the Restoration, they were brought to wave their ancient Privilege, and suffer themselves to be included in the Money-Bills prepared by the Commons : And to encourage their Assent to this Cession, two of the four Subsidies which they had granted the King, and which Grant had been confirmed by an Act of Parliament, were to be remitted to them ; and over and above, they had the Promise of a Clause for saving their ancient Rights. This Security was accordingly given, and a very clear comprehensive Proviso inserted in the Statute for this Purpose. “Provided always, That nothing herein contained shall be drawn into Example, to the Prejudice of the ancient Rights belonging unto the Lords Spiritual and Temporal, or Clergy of this Realm, or unto either of the said Universities, or unto any Colleges, Schools, Alms-Houses, Hospitals, or Cinque-Ports.” 16, 17 Car. II. c. 1.
Tit. XLI.
Are foreign Canons and Constitutions obligatory to us ?
A. Not as such : But those which have been long and generally received allowed, and practised among us, may well remain Laws to us.
Q. The whole foreign Canon Law then, it seems, was not received here in England — ?
A. No, as appears from the famous Case of Legitimation of Children born before Marriage, in which Point the Lords in Parliament declared, Nolumus leges Anglie mutari ; tho’ Alexander III. had published an express Canon for that Purpose. and from several other Instances.
Q. Is long Use and Custom sufficient to graft foreign Laws into the English Constitution ?
A. Yes, so it is declared in Parliament, 25 Hen. VIII. c. 21. “Where this your “Grace’s Realm, recognizing no Superior under God but only your Grace, hath been, and is free from Subjection to any Man’s Laws, but only such as have been devised, &c. within this Realm, or to such other as by Sufferance of your Grace and your Progenitors, the People of this your Realm have taken at their Liberty, by their Consent, to be used amongst them, and have bound themselves by long Use and Custom to the Obervance of the same, not as to the Observance of the Laws of any foreign Prince, Potentate, or Prelate, but as to the Customs and ancient Laws of this Realm, originally established as Laws of the same, by the said Sufferance, Consent, and Custom, and none otherwise.”
Q. What was done towards Reformation of the Canon Law in the Time of King Henry VIII ?
A. Upon Complaint of the Clergy, that divers of the ancient Canons were prejudicial to the Prerogative, and onerous to the Subject ; and upon their Petition, that an Examination should be made, to see which thould be abrogated, and which continued ; by 27 Hen. VIII. c. 19. the King had Power to appoint thirty-two Persons ( Half Clergy, and Half Laity ) of the upper and nether House of Parliament, to renew the ancient Canons and Constitutions, in order to a new Body of Ecclesiastical Laws : And ’till such Review could be compleated, the ancient Canons, &c. which were not contrary to the Laws of the Land, and the Prerogative Royal, were to continue to be used and executed as before.
Q. What was done in this Review ?
A. Pursuant to the Powers given, thirty-two Persons were appointed ; and they had drawn the Whole into Form, so as nothing was wanting but the Confirmation of the King. This Design was taken up again in King Edward VI’s Time : But having been defeated by his Death, rested ’till 1562 ; when it was proposed in Convocation to move her Majesty, that certain learned Men, Bishops and others, might be appointed for that Purpose, and their Orders confirmed by Act of Parliament. Afterwards, by the Endeavours of Archbishop Parker, it was set on Foot in the Parliament in the 13 Eliz. and by a leading Member recommended to the Consideration of the House of Commons ; but after that we hear no more of it. Preparatory to the gaining a Parliamentary Establishment, Care was taken to have the whole Work published, under the Title Reformatio legum, &c. as we now see it, by John Fox ; the Conclusion of whole Preface plainly intimates the main Design of the Publication : Optandum, quod per praematuram mortem Regis illius negatum est Ecclesiae felicitati, per feliciora tempora Serenissimae Reginae nostrae Elizabethae suppleatur, accedente publica hujus nunc Parliamenti auctoritate.
Q. What Authority have the present Canons ?
A. They were ratified by King James I. 1603, in the first Year of his Reign, for himself, and his Heirs, and lawful Successors. The Canons and Constitutions which were made and published in the Reign of Queen Elizabeth, were confirmed only during the Life of the Queen ; and that was the Reason why, upon her Death, they proceeded with so much Expedition to the compiling of the present Canons, which are taken, in the main, out of the Injunctions and Canons that had been made in the three foregoing Protestant Reigns.
Q. What Care is taken that the Canons should be publickly known ?
Tit. XLII.
How often are Bishops bound to visit their Dioceses ?
A. Once every three Years. The ancient Law was, that the Bishop should visit once a Year ; but then it is understood of Parochial Visitations, or a personal repairing to every Church : After, as Dioceses grew larger, the Bishops were indulged to cite the Clergy and People to attend Visitations at particular Places.
Q. Whence have arose the Times of Visitations, as they are now usually fixed about Easter and Michaelmas ?
A. They have evidently sprung from the two yearly Synods of the Clergy, which the Canons of the Church required to be held by every Bishop, about those two Seasons, in their respective Dioceses.
Q. To whom now belongs the Care of Parochial Visitation ?
A. As to Parochial Visitation, or the Inspection into the Fabricks, Mansions, Utensils, and Ornaments of the Church, that Care hath long been devolved upon Archdeacons.
Q. What was the Office of Archdeacons, at their first Institution in the ancient Church ?
A. They were only to attend the Bishops at Ordination, and other publick Services in the Cathedral : But being afterwards occasionally employed in the Exercise of Jurisdiction, not only the Work of Parochial Visitation, but also the holding of general Synods or Visitations, when the Bishop did not visit, came by Degrees to be known and established Branches of the Archidiaconal Office, as such ; which by this Means attained the Dignity of Ordinary, instead of Delegated Jurisdiction.
Q. Can the Bishop visit annually if he pleases ?
A. No ; he is restrained from it, upon account of the Profits which attend the Act of Visiting.
Q. What is a chief and principal Cause and Use of Visitation ?
A. That the Bishop, Archdeacon, or other assign’d to visit, may get some good Knowledge of the State, Sufficiency, and Ability of the Clergy and other Persons whom they are to visit. Canon 137.
Q. How is this effected ?
A. Every Parson, Vicar, Curate, School-Master, or other Person licensed whatsoever, is, at the Bishop’s first Visitation, or at the next Visitation after his Admission, to shew and exhibit to the Bishop his Letters of Orders, Institution, and Induction, and all other his Dispensations, Licences, or Faculties whatsoever ; to be by the said Bishop either allow’d, or, if there be just Cause, disallowed and rejected : And being by him approved, to be, as the Custom is, signed by the Register ; for which the whole Fees accustomed to be paid in the Visitations, in Respect of the Premises, shall be paid only once in the whole Time of every Bishop, and afterwards but half of the said accustomed Fees, in every other Visitation during the said Bishop’s Continuance.
Q. Can the Archdeacon require Exhibits ?
A. None but the Bishop, or other Person exercising Ecclesiastical Authority by Commission from him, hath Right, de jure communi, to require Exhibits from the Clergy : If therefore any Archdeacons are so intitled, it can be only upon the foot of Custom and the Beginning of that, hath probably been an Encroachment.
Q. What is another Part of the Business of Visitations ?
A. Receiving Presentments.
Q. Who are to make Presentments ?
A. Churchwardens, or Sidesmen ; and if they neglect, or refuse, the Minister may present.
Q. Has this Business of Presenting been all along proper to Churchwardens ?
A. The Churchwardens have for many hundred Years been a Body Corporate, to take Care of the Goods, Repairs, and Ornaments of the Church ; but this Work of Presenting hath been devolved on them, and their Assistants, by Canons and Constitutions of a more modern Date.
Q. What was the ancient Way of Presenting ?
A. To select a Number, at the Discretion of the Ordinary, to give Information, upon Oath, concerning the Manners of the People within their District, which Number was selected while the Synod was sitting, and the People, as well as Clergy, in Attendance there.
Q. What Method succeeded this ?
A. In Process of Time it was changed, and it was directed in the Citation, that Four, Six, or Eight, according to the Proportion of the District, should appear, together with the Clergy, to represent the People ; and to be the Testes Synodales, as the Canon Law elsewhere stiles them.
Q. When did Churchwardens begin to Present ?
A. A little before the Reformation, either by themselves or else with two or three more Parochiani fide digni joined with them, and this last, by the Way, is evidently the Original of that Office, which our Canons call the Office of Sidesmen or Assistants.
Q. When was this made a Part of their Office by the Canon ?
A. After the Presentments of Church-wardens had gone on for many Years upon the foot of Practice, at length their Office in this Particular was inforced by an express Canon in the Year 1571, and has ever since continued so.
Q. Are Churchwardens bound by their Oaths to present all such Things as are contained in the Books of Articles of Visitation ?
A. The Articles are offered only by Way of Direction and Charge ; and by the Tenor of their Oath, the Ecclesiastical Laws, and not the Articles, are become the legal Rule and Measure of their Duty. For they are sworn to present such Things only, as, to their Knowledge, are presentable by the Ecclesiastical Laws of this Realm.
Q. What Persons and Crimes are expressly required to be presented by the Canons ?
A. All who offend their Brethren, either by Adultery, Whoredom, Incest, or Drunkenness, or by Swearing, Ribaldry, Usury, or any other Uncleanness and Wickedness of Life. Canon 109. Also Schismaticks, Disturbers of Divine Service and Popish Recusants. See Can. 110, 111, 114.
Q. Can Detections and Presentments be made by Word of Mouth ?
A. Though Presentments are by the 119th Canon required to be made at Home, yet there is no Doubt but every Visitor hath a Right of Personal Examination as oft as he finds Occasion for it ; agreeably to the ancient Practice.
Q. How often are Churchwardens bound to present ?
A. Not above once in every Year where it hath been no oftner used, nor above twice in any Diocese whatever, except it be at the Bishop’s Visitation ; but the Minister and they may present as often as they think meet. Canon 116.
Q. If Churchwardens, in Breach of their Oaths, wilfully refuse to present notorious Offenders — ?
A. They are not to be admitted to the Communion ; and upon Proof, in Cases of wilful Omission, their Ordinaries shall proceed against them in such Sort, as in Cases of wilful Perjury in the Ecclesiastical Court. Canon 17.
Q. Can any one be cited into several Courts for one and the same Crime, as into the Bishop’s Court and the Archdeacon’s, when they visit in the same Year ?
A. No ; the Presentment made to the Chancellor shall be certified to the Archdeacon, and the Presentment to the Archdeacon shall be certified to the Chancellor ; and neither shall intermeddle with the Crimes, or Persons, detected and presented in each other’s Visitation, upon Pain of Suspension, until he repay the Costs and Expences which the Parties grieved have been at by that Vexation. Canon 121.
Q. If the Churchwardens refuse to Present, may the Minister present separately ?
A. Yes ; but he shall not present Sins revealed to him in Confession, nor make those Sins known to any Persons whatever, ( except such, the Concealment whereof is Capital ) under Pain of Irregularity. Canon 113.
Q. May Churchwardens present upon common Fame ?
A. They are sworn, and the Minister charged to present, as well the Crimes and Disorders committed by criminous Persons, as also the common Fame which is spread abroad of them. Canon 115.
Q. May they not bring themselves into Trouble, and have Actions brought against them, for false and malicious Presentments by this Means ?
A. The Rules both of Charity and Government do presume, that they do nothing herein of Malice, but for the Discharge of their Consciences ; and therefore all Judges Ecclesiastical and Temporal are admonished and exhorted, by the Canon, not to admit of any Complaint or Plea against them, for any Presentment they shall make.
Q. What is a Parochial Visitation ?
A. When the Archdeacon visits every Parish severally.
Q. How often is he obliged to do this ?
A. Every Dean, Dean and Chapter, Archdeacon, and others who have Authority to hold Ecclesiastical Visitations, by Composition, Law, or Prescription, shall survey the Churches of his or their Jurisdiction, in his own proper Person, or cause the same to be done once in every three Years. Canon 86.
Q. As Archdeacons, in their original Institution, had no Relation to the Diocese, but only to the Episcopal See, without any thing that could be called Jurisdiction, in the present Sense of the Word, either in the Cathedral, or out of it, by what Steps and Degrees did they attain to the Visitatorial Power they now enjoy ?
A. From the latter End of the third Century, till the Council of Laodicea, Anno 360, the Chorepiscopi had the Inspection, under the Bishop, of the Clergy in the Country, and of those Parts of the Diocese which were remote from the Episcopal See ; but it was then ordained, that no Bishop should be placed in Country Villages, but only περιοδευται, Itinerant or visiting Presbyters : But the Archdeacon being always near the Bishop, and the Person mainly intrusted by him, grew into great Credit and Power, and came by Degrees, as Occasion required, to be employed by him in visiting the Clergy of the Diocese, and in Dispatch of other Matters relating to the Episcopal Care ; so that by the Beginning of the seventh Century, he seems to have been fully possessed of the chief Care and Inspection of the Diocese, in Subordination to the Bishop.
Q. In the same Degree of Power as he now is – ?
A. No. This is to be understood with a two-fold Distinction from the present State and Measure of the Archidiaconal Power : For, 1. He was employed generally throughout the Diocese, at the Pleasure of the Bishop. 2. That the Power of Archdeacons, in the ancient State, was chiefly a Power of Enquiry and Inspection.
Q. How then do all the Rights which Archdeacons enjoy beyond this subsist ?
A. By Grants from the Bishops : Either made voluntarily, to enable Archdeacons to visit with greater Authority ; or of Necessity, as claimed and insisted upon by Archdeacons, upon the Foot of long Usage and Custom.
Q. What Jurisdiction is it that the Archdeacon enjoys in Virtue of such Grants, and of Institution to the Office they are annexed to ?
A. The Jurisdiction he enjoys, is not only in the Eye of the Law Ordinary Jurisdiction, as being, in Reality, a Branch of Episcopal Power, but he himself is properly Ordinarius.
Q. When begun the Divisions of Dioceses into Archdeaconries, and the Assignment of particular Divisions to particular Archdeaconries ?
A. This is supposed to have begun a little after the Norman Conquest ; when the Bishops, as having Baronies, and being tied to a stricter Attendance upon the Kings in their Great Councils, were obliged to larger Delegations of Power, for the Administration of their Dioceses, than till that Time had been accustom’d : For in the Charter of Wiliam the Conqueror, for appointing the Cognizance of Ecclesiastical Causes in a distinct Place or Court from the Temporal, the Archdeacon is mentioned in his general State ; as Vicarius Episcopi. Nullus Episcopus vel Archidiaconus de Legibus Episcopalibus amplius in Hundret placita teneant. And as this Charter did establish what we call the Consistory Court of the Bishop in every Diocese, so did it enable the Bishop by Degrees to assign to particular Persons what Share of Episcopal Authority he thought fit, to be exercised Archidiaconally within the Districts by him appointed ; and as this Exercise, by long Usage, grew into a Claim, so thole Claims, stiffly maintained on the Part of Archdeacons, ended in Composition.
Q. What was the Consequence of this Assignment of particular Powers to particular Persons within their Districts ?
A. It put an End to the general Capacity of Archdeacons, as Vicars General, throughout the whole Diocese ; and made way for those Officers, who are known in our Provincial Councils, and the Glosses upon them, by the Names of Vicar-General, Official, and Chancellor to the Bishop : And who are vested with a delegated Power to exercise, in the Place of the Bishop, all such Jurisdiction as hath not been granted away to others, or that he hath not in the Commission reserved to himself.
Q. Does there lie any Appeal from the Archdeacon’s Court ?
A. Yes, to the Consistory Court, which is the Bishop’s.
Q. Does a Quare Impedit lie for an Archdeaconry ?
A. Yes, tho’ it is but a Function, because he hath Locum in Choro.
Q. What is the Archdeacon’s Business in his Parochial Visitations ?
A. To see that Churches, Chancels, and Parsonage-Houses are in Repair, and to enjoin them where they are wanting ; to see that they have due Ornaments, Books, and Vestments, and to punish what is amiss in Things and Persons.
Q. What is the Signification of the Word Dean ?
A. The Name of Dean, to what kind of Office soever it hath been applied, was originally imposed from a Presidency over Ten, whether Persons or Places.
Q. How many Sorts of Deans are there ?
A. Cathedral and Rural.
Q. What is a Rural Dean ?
A. One who presides over ten Clerks or Parishes.
Q. Is the District of a Rural Dean exactly confined to this Number ?
A. As in the State, by the ancient Law every Hundred was at first divided into ten Tithings or Friborgs, and every Tithing made up of ten Families ; both which kept the Original Names, notwithstanding the Increase of Villages and People : So in the Church, the Deanry still continued, notwithitanding the Increase of Persons and Churches ; tho’ some do still retain the primitive Allotment of ten Churches, and no more.
Q. Of what Antiquity is the Office of a Rural Dean ?
A. ’Tis mentioned in the Laws of Edward the Confessor, as an Office of Antiquity, at that Time, under the Name of Decanus Episcopi ; which shews, he was appointed by the Bishop to have the Inspection of the Clergy and People, within the District in which he was Incumbent, under him, and him alone ; till after the Archdeacon became a Sharer in the Episcopal Jurisdiction, he became of Course a Sharer in the Appointment of Rural Deans.
Q. Is the Office of Rural Deans Temporary or Perpetual ?
A. It hath always been of a Temporary Nature ; and in the Reformatio Legum the Rule is, Munus erit annuum : But in the Diocese of Norwich the Admission of Rural Deans seems to have been more solemn, and their Continuance perpetual.
Q. What was the standing Office of a rural Dean ?
A. To inspect the Lives and Manners of the People and Clergy within their District, to determine lesser Matters themselves, and to report the rest to their Ecclesiastical Superior : They were also sometimes employ’d in other Branches of Power, such as Citations, Inductions, Inquisitions on Jure Patronatus, Custody of vacant Benefices, Trial of Causes by Delegation, and the like ; but in these only occasionally, by their Ecclesiastical Superiors, to whom they swore Obedience at their Admission.
Q. How were rural Deans enabled to answer the Design of their Institution by a Perfect Knowledge of the State and Condition of their respective Deanries ?
A. They had Power to convene Rural Chapters, which were held from three Weeks to three Weeks, and Quarterly, ( in Imitation of Courts Baron here in England ) in which they presided ; till the Archdeacons, being required by Otho to be frequently present at them, did in Effea take the Presidency out of their Hands : From which Constitution we may date the Decay of Rural Chapters ; not only as it was a Discouragement to the Rural Dean, whose peculiar Care the holding them had been, but also as it was natural for the Archdeacon and his Official to draw the Business that had been transacted there to their own Visitation, or, as it is stiled in a Constitution of Archbishop Stephen, to their own Chapter.
Q. What is a Procuration ?
A. A Payment due of common Right to the Ecclesiastical Ordinary, ratione Visitationis ; so called, quia Ecclesiae Episcopum procurant, i.e. curant, alunt, ac tuentur.
Q. Are free Chapels and Donatives bound to pay Procurations ?
A. No, because they are no visitable by any.
Q. Can Procuration be due without actual Visitation ?
A. Some deny it, and build their own Opinion upon the express Letter, both of the ancient Canon Law, and our own Provincial Constitutions, which limit the Payment, whether in Provisions or Money, to actual Visitation, and warrant the Denial of them when no Visitation is held ; but others, with more Reason, as the Case now stands, maintain the Affirmative : For Archdeaconries are rated in the King’s Books, and pay Tenths ; and the Law could never intend the Payment of the tenth Part, if there had been any Year in which the Archdeacon was not to receive the nine Parts : And therefore it seems reasonable, that if they are inhibited from visiting in the Bishop’s Triennial, they have yet a Right to require Procuration for that Year ; and if they wilfully neglect their Duty, they are liable to be punished with spiritualy Censures, by their spiritual Superiors, the Archbishops and Bishops.
Q. What Procurations shall Churches newly erected pay ?
A. According to the Proportion paid by the Neighbouring Churches.
Q. What are Synodals ? And to whom are they due ?
A. A Synodal is in all Probability the same that was anciently called Cathedraticum, as paid by the Parochial Clergy, in Honour to the Episcopal Chair, and in Token of Subjection and Obedience thereto ; and the Name is supposed to have grown from that Duty’s being usually paid by the Clergy, when they attended the Bishop in Synod ; And they are therefore of common Right due to the Bishop only ; but may be claimed by the Archdeacon or other Person, upon the Foot of Composition and Prescription.
Q. What was the Original of that Payment ?
A. It was reserved by the Bishop, upon settling the Revenues of the respective Churches upon the Incumbents ; whereas before, those Revenues were paid to the Bishop, who had a Right to Part of them for his own Use, and a Right to apply and distribute the rest, to such Uses, and in such Proportions, as the Laws of the Church directed.
Q. What are Pentecostals ?
A. Oblations made by the Inhabitants of every Diocese to the Cathedral, as the Mother-Church of the whole Diocese, at the Feast of Pentecost ; in like Manner as the Inhabitants of Chapelries were bound, on some certain Festival, to repair to the Mother-Church, and make their Oblations there, in Token of Subjection and Dependance.
Q. Are Procurations, &c. being denied where due, to be recovered in the Temporal or Spiritual Court ?
A. In the Spiritual Court, being Profits of a meer Spiritual Nature.
Q. Are all Places subject to ordinary Jurisdiction ?
A. No, some are totally exempt ; others but in part, being exempt from the Jurisdiction of this or that Ordinary, but not of all : And these are commonly called Peculiars.
Q. What Places are there which are totally exempt ?
A. Such as enjoy their Exemption upon the Foot of Common Law, as Free Chapels and Donatives ; ( the first visitable only by Commission from the King, and the second by Commission from the Donor : ) or such as the Crown may have exempted, pursuant to the Power granted by Stat. 31 Hen. VIII. upon the Dissolution of the Monasteries ; which Statute vests a Power in the King to subject any of those Religious Houses which were heretofore exempt by Grant from Rome, to such Jurisdiction as he should appoint.
Q. Are not they, who pretend Exemption upon this Foot, obliged to submit the Evidences of their Exemption, to the Ordinary, in like Manner as the Religious were ?
A. Without it, it is impossible for him to know how far his Authority extends.
Q. Of how many Sorts are Peculiars ?
A. Of several. 1. Peculiars of the Archbishop, exclusive of the Bishops and Archdeacons. 2. Peculiars of Bishops, exclusive of Archidiaconal Jurisdiction. 3. Peculiars of Deans, Deans and Chapters, Prebendaries, &c.
Q. Whence sprung the Peculiars of Archbishops ?
A. From a Privilege they had to enjoy Jurisdiction, in such Places where their Seats and Possessions were.
Q. How many of these Peculiars are there in the Province of Canterbury ?
A. Above an Hundred, in the several Dioceses of London, Winchester, Rochester, Lincoln, Norwich, Oxford, and Chichester.
Q. How is Jurisdiction administred in these Peculiars ?
A. By several Commissioners, the Chief of whom is the Dean of the Arches ; so called from his having always held his Courts in Bow Church, or Ecclesia S. Mariae de Arcubus, for the thirteen Peculiars within the City of London.
Q. Does not the Jurisdiction of the Dean of tie Arches extend beyond these thirteen Peculiars ?
A. Not as such, because it belongs to the Principal Official of the Archbishop to receive Appeals throughout the Province ; and that these two Offices are at any Time joined in the same Person is accidental, and depends wholly upon the Pleasure of the Archbishop.
Q. Whence sprung Peculiars of Bishops ?
A. Either from their having belonged to Religious Houses, which were never under Archidiaconal Jurisdiction, or from special Reservation.
Q. How were Peculiars of Deans, Deans and Chapters, Prebendaries, &c. first obtained and settled ?
Tit. XLIII.
What Penalty is there upon buying and selling of Offices ?
A. By 5 Ed. VI. c. 16. ’tis enacted, That if any Person sell any Office or Offices, or receive or covenant to receive Money or Reward, or Bond or Assurance thereof, for any Office, or Deputation of Office, directly or indirectly, ( Offices of Inheritance and some others excepted ) in anywise concerning the Administration or Execution of Justice, &c. he shall not only lose all his Right and Interest in the Gift or Nomination of such Office for that Time, but the Person purchasing, &c. shall be disabled in Law to enjoy it.
A. Are Offices in the Ecclesiastical Courts, viz. those of Chancellor, Commissary, and Register, within this Statute ?
A. Tho’ they principally concern Matters pro Salute Animarum, yet they also concern Matters about Matrimony and Legitimation, which touch the Inheritance of Subjects : And also Matters of Legacy, for Chattels real and personal and in that Respect are Courts of Justice, and within this Statute.
Q. Is the Person disabled utterly to take the same Office, altho’ it afterwards become vacant, and a new Grant be made to him of it ?
A. It was so resolved by Chancellor Egerton and Chief Justice Coke, and that it is such a Disability as the King himself cannot dispense with.
Q. Who has the Right of disposing of the Office upon such Forfeiture ?
A. It belongs to the Crown.
Q. What Restraints are there upon Bishops in granting such Offices ?
A. No Offices of any Kind are grantable by Bishops or other Ecclesiastical Persons, as such, in any larger Extent, than they shall appear to have been granted before 1 Eliz. c. 19. and 13 Eliz. c. 10. And it hath been declared, That Grants of Offices, being made for more Lives than they had been made for before those Statutes, or being made in Reversion, when before those Statutes they had not been made in Reversion, are both void.
Q. What are the Qualifications required in a Spiritual Judge ?
A. Formerly they were obliged to be in Orders, and single ; but now Lay and Married Men are qualified, provided that every Judge Ecclesiastical, Chancellor, Commissary and Official, must be full Six and twenty at the least, learned in the Civil and Ecclesiastical Laws, Master of Arts, or Batchelor of Law, and reasonably well practised in the Course thereof, and of good Life and Behaviour. Canon 127.
Q. What Oaths are required of him before the Execution of his Office ?
A. He must take the Oath of Supremacy, and subscribe the XXXIX Articles ; he shall also swear, that he will, to the uttermost of his Underitanding, deal uprightly and justly in his Office, without Respect, or Favour, or Reward ; the said Oaths and Subscription to be recorded by a Register then present : All Ecclesiastical Officers shall take the same Oaths, upon Pain of Suspension. Ibid.
Q. What are the Ecclesiastical Courts ?
A. Ecclesiastical Courts, ( Curiae Christianitatis, Courts Christian, or the Spiritual Courts, ) are those which are held by the King’s Authority, as Supreme Governor of the Church, for Matters which chiefly concern Religion. Other Causes are given to them by the Favour of Princes. See the Introduction.
Q. Who are the Juges in these Courts ?
A. Archbishops, Bishops, some Deans and Chapters, Archdeacons, and some Prebendaries, ( or Vicar-Generals, Chancellors, Commissaries, and Officials appointed by them ) and the Proceedings are in their Names, tho’ they are the King’s Courts.
Q. In what Matters and Things does the Ecclesiastical Jurisdiction consist ?
A. In visiting Churches, the Clergy, and Churchwardens of several Parishes or Districts ; in granting Sequestrations, Institution and Induction to Benefices, Licences and Dispensations ordering Real Compositions, granting Probates of Wills, Letters of Administration, Letters ad Colligendum, &c. In hearing and determining the following Causes, viz. Apostacy, Blasphemy, Idolatry, Heresy, Schism, Breach of Faith, or Perjury in an Ecclesiastical Cause, Profanation of the Lord’s Day, and Holydays, not frequenting publick Prayers, Neglect of Sacraments, Neglect of Duty in Ministers, Disturbance of Divine Service, laying violent Hands upon a Clerk, providing Books and decent Ornaments for the Celebration of Divine Service, Rites of Matrimony, Jactitation of Marriage, Divorces, Alimony, Restitution of Conjugal Rights, General Bastardy, Substraction of Tithes, or of a Modus Decimandi, Oblations, Obventions, Mortuaries, Pensions, Synodals, Procurations, Dilapidations, Rights to Seats in the Church, or to a Place in a Seat, Reparation of Churches and publick Chapels, and of Church-yards and Rates, and Accounts of such Repairs, quarrelling or fighting in a Church or Church-yard ; also the Bounds of Church-yards, and the Bounds of Parishes, if they come in Question in a Spiritual Matter ( Qu. ) Testaments and Codicils proved by Witnesses, Legacies, Administrations, Suits concerning Inventories, and Accounts of Executors or Administrators, Simony, Incest, Adultery, Fornication, or violent Suspicion, or Fame thereof, Solicitation of Chastity, Defamations in charging with Offences meerly Spiritual, common Swearers and Drunkards, filthy Talkers, Money upon Commutation of Penance, Fees of Judges, Advocates, Proctors, Registers, Apparitors, &c. Wages for a Curate or a Parish Clerk ( Qu. ) Rights of naming a Church-warden, a Parish Clerk, &c.
Q. By what Laws and Constitutions is the Church of England governed ?
A. By the Canon Law, Common Law, and Statute Law. See the Introduction.
Q. What is the Nature and Extent of the Power of Chancellors, as the Name is understood at present ?
A. A Chancellor, being the Bishop’s Substitute, and having Ordinary Power by Delegation, hath the same Court with the Bishop, so that the legal Acts of the Court, are the Bishop’s Acts, by whose Authority he sits there ; so that no Appeal lies from the Bisiop’s Officer to himself, but to the Superior ; and as to the Bounds of a Chancellor’s Power, as to Acts of voluntary Jurisdiction, the Law no where determines them ; nor can it be supposed so to do, since it is but a delegated Power, and it is in the Right of him that deputes, to circumscribe and limit it : The Contentious Jurisdiction is conveyed to him virtute Officii, ( so that the Bishop may well sue for a Pension or other Rights before his own Chancellor ) and it is generally said, That if a Bishop doth not constitute a Chancellor, the Archbishop of the Province may oblige him to it.
Q. Have Ordinaries Authority to correct and punish their own Officers ?
A. Our Ecclesiastical Laws evidently suppose a judicial Authority remaining in Ordinaries, for the Correction and Punishment of their own Officers, however constituted by Patent, inasmuch as the Chancellors, for divers Crimes, shall be suspended by their Bishops ( as for Divorces unduly made, for not presenting Recusants, for not certifying Presentments at Visitations ) and it may be taken for granted, that the Parties concerned will not allow the Power of Suspension, in these and the like Cases, without legal Process.
Q. What is a Commissary ?
A. Officialis foraneus –– ; qui in certa parte Dioeceseos vel ad certos actus constituitur, viz. in such Places, and for such Acts, as, by reason of Distance, &c. are inconvenient for the chief Consistory : But besides these, all Persons administring peculiar Jurisdiction of any Kind, are also comprehended under the Name of Commissaries, by Way of Distinction from the Chancellors, who, under the Bishop, have the Exercise of Ordinary Jurisdiction.
Q. What is an Official ?
A. This Name, however belonging to Chancellors and Commissaries, as those who hear and determine Causes Ecclesiastical, in the Name of the Bishop, doth, in common Speech, denote only the Person who exercises that Power by Commission from the Archdeacon, to whom he stands in the like Relation, that the Chancellor doth to the Bishop.
Q. What Care is taken by the Ecclesiastical Constitutions not to encourage Contention between Parties ?
A. No Ecclesiastical Judge shall take any Thing for Arbitration, when Parties have a Mind to agree, nor hinder their Agreement, nor take any thing for so doing, upon Pain of restoring it to him who gave it ; and as much to the Poor, upon Pain of Excommunication.
Q. What is a Surrogate ?
A. A Person substituted by the Chancellor, Commissary, Archdeacon’s Official, or any other Person using Ecclesiastical Jurisdiction, in their Absence, to keep Courts for them, or to exercise other Acts of their Jurisdiction, as granting Licences, Probate, &c.
Q. What Qualifications are required in a Surrogate ?
A. He must be either a grave Minister, and a Graduate, or a licensed publick Preacher, and a beneficed Man near the Place where the Courts are kept, or a Batchelor of Law, or Master of Arts at least, who hath some Skill in the Civil and Ecclesiastical Law ; a Favourer of true Religion, and a Man of modest and honest Conversation, upon Pain that the Judge and Surrogate shall be suspended for three Months. Canon 128.
Q. What Qualifications are required in an Advocate, in order to his Admission ?
A. By a Constitution of Archbishop Peckham, none shall be Advocate till he hath heard Canon and Civil Law three Years at least, and by a Constitution of Otho, shall take an Oath to be faithful to his Client, and shall not be guilty of indirect Practices.
Q. What Authority must a Proctor hare ?
A. He must be constituted and appointed by the Party himself, whose Proctor he is, either before the Judge, and by Act in Court, or in the Beginning of the Suit, by a true and sufficient Proxy thereunto warranted and enabled. Canon 129.
Q. What do you call a sufficient Proxy ?
A. That which is strengthned and confirmed by some authentick Seal ; the Party’s Approbation, or at least his Ratification therewithal concurring.
Q. Can a Proctor retain a Cause in any of the Archbishop’s Courts without the Advice of an Advocate ?
A. Not for two Court-Days, upon Pain of Suspension for a Year. For the Duty and Behaviour of Proctors, see Canon 131, 133.
Q. What is the Duty of a Register, and what Penalty upon the Neglect of it ?
A. No judicial Act whatever shall be sped without the Presence of the Register, or his lawful Deputy, or such Persons as are by Law allowed on that Behalf to write and speed the same. And if any Register, or his Deputy, shall receive any Certificate without the Knowledge and Content of the Judge, or willingly omit to cause any Person cited to appear upon any Court-Day, to be called, or unduly put off, and to defer the Examination of Witnesses to be examined by a Day set and assigned by the Judge, or do not obey &mdash ; or behave himself negligently, undutifully, or partially in his Office, he shall be suspended by the Bishop for the Space of one, two, three, or more Months, according to the Quality of his Offence. See Canon 134.
Q. Are Apparitors obliged to execute their Office in Person ?
A. Yes, unless upon good Cause to be approved by the Ordinary.
Q. May Apparitors take upon them the Office of Promoters or Informers for the Court ?
A. They are expressly forbid to do so by the Canon. Of their Number and Duty see Canon 138.
Q. If an Apparitor return one cited upon his Oath in Court Christian, where in Truth he was not cited, and the Party thereupon is pronounced Contumax and Excommunicated — ?
A. He shall have an Action upon the Case against the Apparitor, because here is Injuria & Damnum, and although the Proceeding and Oath be Ecclesiastical, yet the Damage is Temporal ; for he is disabled to sue in any Court.
Q. Will an Action upon the Case lie against an Apparitor for maliciously procuring one to be cited into the Court for any Crime, as Incontinency, &c. where the Party is afterward cleared ?
A. Yes, in the 8th of Charles I. such an Action was brought, and it being found that what the Apparitor did, was falso & malitiose, the Court held, that the Action did well lie.
Tit. XLIV.
Where and when is the Spiritual Court to be held ?
A. ’Till the Reign of William the Conqueror, the Court for Ecclesiastical and Temporal Matters was the same ; namely, the County-Court ; where the Bishop and Sheriff, or their Representatives, sat jointly, for the Administration of Justice ; the first, in Matters Ecclesiastical, by the Laws of the Church ; the second, in Matters temporal, by the Laws of the State. But this Mixture of Judges and Causes occasioning great Confusion, William the Conqueror separated the Ecclesiastical from the Temporal Courts, by a Charter for that Purpose, ( though that Separation was not fully established for some Time after ) by which Charter the Bishop is to assign a convenient Place, and a convenient Time, any where within the Diocese.
Q. What are the Spiritual Courts in particular ?
A. 1. The Archdeacon’s Court. 2. The Consistory Courts. 3. The Court of Peculiars * of the Archbishop of Canterbury. 4. The Prerogative Courts of the Archbishops of Canterbury and York. 5. The Court of Arches. 6. The Court of Delegates.
* Other Peculiars are taken Notice of above.Q. What is the Archdeacon’s Court ?
A. The Court of the Archdeacon is the most inferior Court, and is held in such Places where the Archdeacon, either by Prescription or Composition hath Jurisdiction in Spiritual or Ecclesiastical Causes within his Archdeaconry. The Judge of this Court is called the Official of the Archdeaconry.
Q. What are the Consistory Courts ?
A. The Courts of the Archbishops and Bishops of every Diocese, held in their Cathedral Churches for Trial of all Ecclesiastical Causes within the Diocese. The Bishop’s Chancellor or Commissary is the Judge.
Q. Where is the Prerogative Court of the Archbishop of Canterbury held, and for what ?
A. At Doctors-Commons in London ; and in it all Testaments and last Wills are proved, and Administrations upon the Estates of Intestates granted, where the Party dies beyond Sea, or within his Province, leaving Bona Notabilia.
Q. What is the Court of Arches ?
A. The Court of Arches ( Curia de Arcubus ) because it was anciently held in Bow-Church, or in the Arched Church of St. Mary in Cheapside, London ) is that which hath Jurisdiction upon Appeal in all Ecclesiastical Causes, except what belong to the Prerogative Court : All Manner of Appeals whatsoever from any Bishops or their Chancellors, Commissaries, &c. being directed hither. Also all Appeals from the Commissaries of the Archbishop of Canterbury, are made to the Judge of the Court of Arches.
Q. Who is the Judge of the Arches ?
A. The Person who administers Justice under this Style, is the Official Principal of the Archbishop, who was called Officialis de Arcubus, and the Court itself Curia de Arcubus, for the Reason above.
Q. Why was this Court held in Bow-Church ?
A. By reason of the Archbishop’s having Ordinary Jurisdiction in that Place, as the chief of his Peculiars in London, and the Church were the Dean of those Peculiars, commonly called the Dean of the Arches, held his Courts.
Q. Is the Jurisdiction of the Dean of the Arches limited to the thirteen Peculiars of the Archbishop in the City of London ?
A. The Jurisdiction of the Dean of the Arches, as such, reacheth no further ; but because these two Courts were held in the same Place, and the Dean of the Arches, was usually substituted in the Absence of the Official Principal, while the Offices remained in two Persons, and the Offices themselves have been in many Instances united in one and the same Person, as they now remain, this has given Occasion to some to mistake, that it is the Dean of the Arches, as such, who hath Jurisdiction throughout the Province for receiving Appeals, &c. whereas in Truth this belongs to him only as Official Principal.
Q. Can the Judge of the Arches, or other superior Courts of the Archbishop, cite any Person out of the Diocese of another ?
A. No, unless it be on an Appeal, or except the Judge be an Offender, or the immediate Judge dare not, or will not cite, or the Bishop or Judge be Party, or at the Request of the inferior Judge, where the Law Civil or Canon doth affirm the Execution of such Request to be lawful or tolerable, 23 H. VIII. c. 9. or lastly, except where the Prerogative Court cites for the Probate of Testaments.
Q. What Penalty is there upon any Judge offending againit this Act ?
A. He shall forfeit double Damages and Costs to the Party grieved, and also ten Pounds, to the King Half, the other Half to any Person that will sue for it.
Q. Was there not also formerly a Court of Audience ?
A. This Court was anciently held before the Archbishop in Person, with Auditors, by way of Assistants only ; afterwards it was held by the Authority of the Archbishop in the Consistory Court within the Cathedral Church of St. Paul, by a Judge whose Stile was, Curiae Audientie Cantuariensis Causarum & Negotiorum Auditor, and who had the self-same Jurisdiction with the Official of the Arches. For which Reason the Court of Audience, or at least the Appointment of particular Judges or Auditors for the Administration thereof, hath been long disused ; the Offices of Principal Official of the Arches and Audience being united in one Person.
Q. What is the Court of Delegates ?
A. The Court of Delegates is so called because the Judges are Delegated, and sit by Force of the King’s Commission under the Great Seal pro hac vice, upon Appeals to the King in these Cases, viz. when a Decree or Sentence is given in any Ecclesiastical Cause by the Archbishops or their Judges : When any Decree or Sentence is given in any Ecclesiastical Cause in Places exempt, or Peculiars belonging to the King : Upon Appeals from Ireland, or either of the Universities : And lastly, when a Sentence is given in the Court of Admiralty ; except in the Case of Prizes, where the Appeal lies to the Lords of the Council.
Q. What is the Course of Proceeding in the Ecclesiastical Courts ?
A. The Ecclesiastical Courts proceed according to the Course of the Civil and Canon Laws. By Citation, Libel, or Articles, Answer upon Oath, Proof by Witnesses and Presumptions, Definitive Sentence without a Jury, and after that, for Contempt of Sentence, by Excommunication ; and if the Sentence is disliked, by Appeal. In criminal Causes the Proceedings of the Ecclesiastical Courts are by Inquisition, or ex Officio mero ; or by Accusation, or ex Officio promoto ; or by Denunciation or Presentment of Church-wardens in Visitations, &c.
Q. What is a Libel ?
A. A Declaration or Charge, drawn up in Writing on the Part of the Plaintiff or Actor, to which the Defendant or Reus is obliged to answer.
Q. May the Defendant demand a Copy of the Libel in order to give Answer thereunto, or in order to a Prohibition.
A. Yes, where the Cause is between Party and Party ; and some think also, that when the Judge proceeds ex Officio, a Copy ought to be delivered, as well on Articles and Presentment, as on other Libels, and that the reading the Presentment to the Party is not sufficient ; but Judgments upon this Case have frequently varied.
Q. What if the Libel is not delivered — ?
A. A Writ or Mandate is provided, concerning which, Fitzherbert says, Nat. Br. 33. If a Man be sued in the Spiritual Court, and the Judges there will not grant to the Defendant a Copy of the Libel, then shall he have a Prohibtion directed unto them for to surcease, &c. until they have delivered a Copy of the Libel ; which Prohibition the more modern Books have put under these two Limitations ; 1. That before Prohibition is granted, an Oath shall be required of the Denial of the Libel : And, 2. That it shall not be granted at all if the Appeal is made for such Denial ( as for a Gravamen ) from an Inferior to a Superior Court ; because the Party hath his Election, and hath chosen his Remedy. To the Remedy by Way of Prohibition, Fitzherbert adds, in the forementioned Place, That the Defendant may have an Action against them upon the Statute 2 Hen. V. c. 3. if they will not deliver the Copy of the Libel, whether the Cause in the Libel be a Spiritual Cause or not.
Q. Are Interrogatories within the Equity of this Statute ?
A. It hath been so resolved, and that, when required, a Copy of them ought to be granted.
Q. Can the Spiritual Judge impose Fine or corporal Punishment ?
A. No ; only Censures pro Salute Animae.
Q. Can he administer the Oath ex Officio ?
A. No, by 16 Car. I. c. 2. upon Pain to forfeit treble Damages to the Person grieved, and 100l. to him who shall first sue for the same, and to be disabled for ever from being in any Office or Employment, in any Court of Justice whatsoever.
Q. What is the Oath ex Officio ?
A. An Oath whereby any Person may be obliged to make any Presentment of any Crime or Offence, or to confess or accuse himself, or herself, of any criminal Matter or Thing, whereby he or she may be liable to any Censure, Pain, Penalty or Punishment whatever.
Q. May not the Ecclesiastical Courts receive Answers upon Oath in other Cases ?
A. Yes, where the Course hath been so to do, they may receive them still, as the Chancery does in like Cases.
Q. If Articles ex Officio are exhibited in the Spiritual Court for Matters Criminal, and the Party is required to Answer upon Oath — ?
A. He may plead quod non tenetur respondere, and if they will proceed notwithstanding, he may have a Prohibition.
Q. But if it be in a Civil Matter — ?
A. He cannot do so, for then he is bound to Answer.
Q. What Difference is there in the Rules of the Temporal and Spiritual Courts, with Regard to the Number of Witnesses ?
A. In the Spiritual Court they admit of no Proof but by two Witnesses at least ; in the Temporal Court one Witness, in many Cases, is judged sufficient. If therefore the Point to be proved is meerly Spiritual, the Spiritual Court requires two Witnesses, and they are not disturbed by Prohibition : And the same has been held with Regard to Points not otherwise cognisable in the Spiritual Courts, but as Incidental to the principal Point. But the more modern Reports speak otherwise ; that such Proof which is good at the Common Law, ought to be allowed in their Courts, where the Matter to be proved ( which falls in incidentally in a Case before them in the Spiritual Court ) is Temporal : They may follow their own Rules in Things which are originally in their Cognisance, but if any Collateral Matter doth arise, as concerning a Revocation of a Will, or Payment of a Legacy, if the Proof be but by one Witness, they ought to allow it.
Q. How is Perjury punishable in a Spiritual Cause ?
A. By the Spiritual Judge ; if committed in a Temporal Cause, it is punishable only in the Temporal Courts. But tho’ the Case is Spiritual, and the Perjury is committed in the Spiritual Court, yet the Judge there can only punish pro salute animae, and the Person grieved by such Perjury, must recover his Damages at the Common Law.
Q. What Fees are due to Ecclesiastical Officers ?
A. All Fees in Ecclesiastical Courts, shall be according to the Tables confirmed and ratified by Archbishop Whitgift, Anno 1597, and all Questions concerning the same, shall be determined by the Archbishop for the Time being, except the Statutes of the Realm do express some other Fee to be due.
Q. How is it to be known what Fees are due ?
A. Every Register shall place two Tables containing the several Rates and Sums of all the said Fees, one in the usual Place, or Consistory where the Court is kept, and the other in his Registry : And both of them in such sort as every Man whom it concerneth, may, without Difficulty, come to View and Perusal thereof, and take a Copy of them, upon Pain of Suspension till he do it ; and for concealing them, he shall be suspended six Months. Canon 136.
Q. Where are Proctors Fees to be sued for ?
A. In the Spiritual Courts.
Q. What Remedy is there for Extortion and Oppression in the Spiritual Courts ?
A. The Ordinaries and their Officers may be indicted ; but then they “must say and put in certain, in what Thing, and of what, and in what Manner the said Ordinaries, or their Ministers, have done Extortions and Oppressions,” 25 Edw. III. c. 9. It should be shewed likewise, what is their due Fee, for if no Fee be due, the same ought to appear in the Indictment.
Q. What Stamps are required in Citations and other Instruments in the Proceedings of the Spiritual Court ?
A. Every Citation or Monition, Libel or Allegation, Deposition, Answer, final Decree, and Inventory, ( or Copies of them ingross’d ) a double Sixpenny.
Every Protest, Procuration, Letter of Attorney, or any other Notarial Act, double Sixpenny.
Every Commission issuing out of any Ecclesiastical Court, Five Shillings.
Tit. XLV.
How are Spiritual Courts restrained ?
A. By Prohibition and Praemunire.
Q. How are they restrained by Praemunire?
A. In the Statutes 27 Ed. III. c. 1. and 16 Rich. II. c. 5. ( which, doubtless, were principally intended against Impeachments, in the Court of Rome, of such Judgments as had been given in the King’s Courts ) the Words being General, ( as, in any other Court, at Rome, or elsewhere ) have been interpreted to be a Restraint upon the ordinary Spiritual Courts of this Realm, from intermeddling in any Matters of a Temporal Nature ; and that, if they do, they are subject to a Praemunire. Concerning which, my Lord Cook lays down Three Rules, by which it may be judged in what Cases a Praemunire lies, and what not.
1. When the Cause originally belongs to the Cognisance of the Ecclesiastical Court, and the Suit is prosecuted there in the same Nature, as the Cognisance belongs to them, ( altho’, in Truth, all Circumstances disclosed, it belongs to the King’s Courts and the Common Law, ) yet no Praemunire lies but only Prohibition ; as if Suit be for Substraction of Tithes, when, in Reality, they were severed from the Nine Parts, and carried away ; or for Sylva Caedua, under the Age of Twenty Years, whereas they were above that Age.
2. Altho’ the Cause originally appertains to the Cognisance of the Ecclesiastical Court ; yet if it be sued for in the Nature of a Suit which belongs to the Common Law, ( as if a Person sues for carrying away his Tithes, severed from the Nine Parts, or for Tithes of Wood above Twenty Years Growth ; in which, and the like Cases, it is apparent to the Ecclesiastical Court by the Libel, that the Matters appertain to the Common Law ) Praemunire lies.
3. Where the Cause originally belongs to the Cognisance of the Common Law, and not to the Ecclesiastical Court ; there, altho’ they Libel for it according to the Course of the Ecclesiastical Law, yet the Praemunire lies ; because this draws the Case, which is determinable at the Common Law, ad aliud Examen, viz. to be decided by the Civil or Ecclesiastical Law, and so deprives the Subject of the Benefit of the Common Law, which is his Birth-right.
Q. Does it not seem a great Hardship, that Ecclesiastical Judges, in executing the Laws of the Church, should lie under such terrible Apprehension as that of Praemunire ? Are there not other Ways by which the Jurisdiction of the Temporal Court is secured ?
A. Yes, by an Action upon the Case for suing in the Spiritual Court for a Temporal Matter ; by Prohibition to the Court to stay such Suit and Process ; and by Attachment and Fine, with Damages and Costs to the Party aggrieved, if they go on, notwithstanding the Prohibition ; and this is the Method usually practised.
Q. What is Prohibition ?
A. A Writ issuing out of the Chancery, King’s Bench, or Common Pleas, to forbid a Judge in the Spiritual Courts, &c. to proceed in a Cause that belongs to the Common Law Courts, or that belongs not to their Jurisdiction, tho’ the Courts at Law can give no Remedy.
Q. In what Cases does Prohibition not lie ?
A. Prohibition lies not in Case of Penance Corporal or Pecuniary, injoined for deadly Sin ; nor for Repair of Church-yards or Churches, nor for Oblations, Tithes, Mortuaries, Pensions, laying violent Hands upon a Clerk, Defamation where Money is not demanded, nor for Breach of Faith ; and in many Cases before mentioned. 13 Edw. I.
Q. May the Defendant only have Prohibition ?
A. The Plaintiff, as well as Defendant, in the Spiritual Court may have Prohibition to stay his own Suit.
Q. May a Prohibition be granted upon Suggestion of Matters not contained in the Libel ?
A. * Yes : And this is called Prohibition upon a collateral Surmise ; as where one is sued in the Spiritual Court for Tithes of Sylva Caedua, the Party may suggest, that they were gross or great Trees, and have a Prohibition ; yet no such Matter appeareth in the Libel : So if one be sued there for violent Hands laid on Minister by an Officer, as a Constable, he may suggest, that the Plaintiff made an Affray upon another, and he, to preserve the Peace laid Hands on him, and so have a Probibition ; and so in very many other like Cases : And yet upon the Libel, no Matter appeareth why a Prohibition should be granted.
* This was the Answer of the Judges, upon a Complaint of Archbishop Bancroft in the third Year of King James the First. That Prohibitions were granted without Sight of the Libel : Upon which Head ’tis natural to observe, that as there are few Cases but what will afford such Collateral Surmises ; so, how false and groundless soever they be, there are too many Persons who have Recourse to them, on Purpose to tire an Adversary, and delay Sentence in the Spiritual Court. And since these evil and indirect Ends may at any Time be compassed, if Suggestions of the Party’s own framing, and which are not in the Libel, are to be listened to ; since also in the Consequence, this is such an intolerable Interruption to the Spiritual Courts, it should seem to be highly reasonable, that in Default of proving such Suggestions as appeared not in the Libel, effectual Penalties were provided to discourage the making of them ; as it is in all Cases of Tithes, by Stat. 2. Edw. VI. where not only Consultation is granted upon Failure of Proof, but also, double Costs and Damages to the Party injured.Q. In Case the Principal Matter belongs to the Cognisance of the Spiritual Court, are all Matters Incidental, tho’ otherwise of a Temporal Nature, cognisable there also ?
A. Yes : But notwithstanding this, though they may be proceeded on, in the Spiritual Court, when they are own’d by both Sides to be good and valid, ( as in the Case of Leases, Customs, and Prescriptions ) yet if the Validity of them comes in Question, there they are immediately Prohibited.
Q. What is the Reason why Prohibition lies, when the Issue of a Matter depending in the Spiritual Court, is determined or influenced by any Statute ?
A. Because the Temporal Judges claim a Right of Interpreting all Statutes equally, whether they concern Ecclesiastical or Temporal Matters.
Q. Is a Temporal Loss ensuing upon a Spiritual Sentence, of itself Cause of Prohibition ?
A. No ; otherwise no Crimes could be punished in the Spiritual Court by Deprivation.
Q. Must the Suggestion be precisely proved, in order to obtain a Prohibition ?
A. No : Nay it has been resolved, that if, when a Libel in the Ecclesiastical Court contains any Articles, any of them do not belong to the Cognisance of Court Christian, a Prohibition may be generally granted, and upon Motion, a Consultation may be granted, as to Things which do belong to Spiritual Jurisdiction.
Q. May Prohibitions be granted on the last Day of the Term ?
A. No : But upon Motion on the last Day of the Term, there may be a Rule to stay Proceedings ; till the next Term.
Q. May Prohibition be had after Sentence and Execution ?
A. Yes ; and that, as hath been held, whether any Appeal is depending or not.
Q. Does Prohibition take off Costs assess’d upon an Appeal, where the Cause is returned to the Inferior Court ?
A. It has been adjudged in this Case, that because Prohibition stays all Proceedings, the Costs are taken away ; and further, that if the Party was Excommunicate, he should be absolved.
Q. What is a Consultation ?
A. A Writ to return a Cause, removed by Prohibition, to the Ecclesiastical Court, when the Judges find that that Court hath Jurisdiction, or that the Sugestion is false, or not proved, upon which the Prohibition was obtained.
Q. Why is it called a Consultation ?
A. Because the Court, upon Consultation among them, ought to award it ; and it is on Account of the great Deliberation to be bestowed on these Occasions, and its being an Award of the Court, and Final, that no Consultation can be granted, tho’ by all the Judges, out of Term, nor by any of them within the Term, out of Court.
Q. Is a second Prqhibition of Force, which is granted after Consultation ?
A. Not if the Consultation was duly granted ; that is, upon the Substance of the Suggestion being proved to be insufficient in Verdict, or Non-suit after Evidence ; and not where it is granted for the Insufficiency of the Form of the Suggestion, or in the Proceedings thereupon. Provided also, that the Matter in the Libel be not engross’d, enlarged, or otherwise changed.
Q. Does the Infliction of Punishments, assigned to any Vice or Immorality by Common or Statute Law, for Temporal Ends, supersede the Right which the Church hath to inflict Spiritual Censures, pro Salute Animae ?
A. No * ; Where the Common or Statute Law giveth Remedy in Foro seculari, whether the Matter be Spiritual or Temporal, the Cognisance of that Cause belongeth to the King’s Temporal Courts only, unless the Jurisdiction of the Ecclesiastical Court be saved or allowed by the same Statute to proceed according to the Ecclesiastical Laws — Which it is supposed to be, unless the Statute hath Negative Words —— as, It shall not be punished otherwise, or in other Manner, or the like Effect.
* Capital Crimes excepted.Q. Are Felonies or other Capital Crimes examinable in the Spiritual Court ?
A. They may not originally examine such a Crime, to prove a Man Criminous, much less when he is so prov’d in the proper Court, may they impeach the Sentence in a Court improper ; but they may build a Sentence of Deprivation upon such a Conviction.
Q. What is an Appeal ?
A. A removing of a Cause to a superior Court, whereby the Sentence is suspended, till the Appeal is heard and determined.
Q. What is the End and Design of an Appeal ?
A. ’Tis thus set forth in the Reformatio Legum : Ut Gravamen impositum reparetur, & ad Corrigendam Iniquitatem & Imperitiam Judicis, & nonnunquam ad ipsius afflicti succurrendum inscitiae.
Q. To whom, and in what Manner, do Appeals lie in Ecclesistical Causes ?
A. By 24 Hen. the VIIIth. c. 12. in Causes Testamentary, Causes of Matrimony and Divorces, Right of Tithes, Oblations and Obventions, Appeals lie from the Archdeacon’s Court, to the Bishop or Diocesan. From the Bishop or his Commissary, within fifteen Days after Sentence, to the Archbishop. From the Archdeacon of an Archbishop or his Commissary, to the Arches or Audience, and from thence to the Archbishop himself, there to be definitively and finally determined. But by 25 Hen. the VIIIth. c. 19. an Appeal lies from the Archbishop’s Courts, to the King in the Chancery ; and upon every such Appeal, a Commission shall be directed under the Great Seal, to such Persons as the King shall nominate, who, upon Account of the special Commission or Delegation they receive from the Prince, are commonly called Delegates.
Q. Does an Appeal lie to the Delegates from a Local Visitor ?
A. No such Appeal lies by this Statute, nor does it lie in any Cause of a Temporal Nature ; nor did it lie from the High Commission Court, when in Being, because they themselves were the King’s Delegates, as acting by immediate Commission from him ; and there was no Remedy against their Sentences but a new Commission to others, grantable in Virtue of the Royal Prerogative, and independent from this Statute.
Q. Is the Judgment of the King’s Commissioners final ?
A. Yes : But the King, after Definitive Sentence, may grant a Commission of Review ; for there are no Words in the Statute to restrain him, and the Pope, as supream Head, could do the like.
Q. Is it necessary that the Delegates in Ecclesiastical Causes should be Spiritual Persons ?
A. The Statute which entitles the King to the ultimate Cognisance by Commission, doth not limit him, but leaves him wholly to his own Choice, with Power of appointing Commissioners out of the Temporalty, if he pleases ; And it might be advisable at the Reformation, when the Bishops and Clergy were generally suspected of a secret Affection to the Papal Authority, to leave him such a Power : But, in Fact, there are no Footsteps of any of the Nobility or Common Law Judges in Commission till the Year 1604, i.e. for seventy Years after the erecting of that Court, nor from 1604, are they found in above one Commission in forty, till the Year 1639 ; from whence ( i.e. from the Downfall of Bishops, and their Jurisdiction, which ensued ) we may date the present Rule of Mixtures in that Court, of Temporal and Spiritual Judges.
Q. To whom shall the Appeal be made in Causes which concern the King, his Heirs and Successors ?
A. To the Upper House of Convocation, whose Judgment shall be final.
Q. To whom are Appeals to be made from Places exempt, in such Cases as they were wont to appeal immediately to the Pope ?
A. To the King in Chancery.
Q. According to what Rules do the Delegates proceed ?
A. Their Proceedings are according to the Rules of Civil and Ecclesiastical Laws ; upon which Account it hath been particularly adjudg’d, that a Suit there doth not abate by the Death of the Parties, this being the Course in the Ecclesiastical Courts.
Q. Within how many Days must all Appeals be from a definitive Sentence ?
A. Within Fifteen : But if the Appeal is from an interlocutory Decree, it ought to be made within ten Days by the Canon Law.
Q. What is an Inhibition ?
A. An Inhibition is commonly issued forth out of an Higher Court Christian, to an Inferior Court Christian, to stop Proceedings, and is in the Nature of a Prohibition.
Q. What Rules are to be observed in granting Inhibitions ?
A. No Inhibitions shall be granted, unless subscribed by an Advocate of the Court, or where there is no Advocate, by a Proctor ; and before the going out of any Inhibition the Appeal shall be exhibited to the Judge, with a Copy of the Acts from which he appealeth ; whereby he may be fully informed both of the Quality of the Crime, and of the Cause of the Grievance ; upon Pain of Suspension of the Judge or Register offending, for three Months, and of the Proctor for a Year. Can. 96, 97.
Q. Are Contemners of Rites and Ceremonies allowed to appeal ?
Tit. XLVI.
What is the Difference between Ecclesiastical and Temporal Punishments ?
A. The Temporal Courts inflict Punishment upon the Body, or by pecuniary Mulcts, or by Forfeiture of Lands and Goods : But the Ecclesiastical Courts inflict Censures and Punishments pro Salute Animae, and to reform the inward Man.
Q. What are the Ecclesiastical Punishments ?
A. Purgation, Publick Penance, Excommunication, Interdict, Suspension, Deprivation, and Degradation.
Q. Can any Person be compelled upon Oath to purge himself of any Crime of which he stands accused ?
A. No : By 13 Car. II. c. 12. Purgation is taken away, so as that none shall be compell’d to it ; but any Person may still offer himself voluntarily to Purgation for the clearing of his Innocence.
Q. What was the ancient Method of Purgation ?
A. When any Man or Woman lay under a common Suspicion or publick Fame of Incontinence, or other Vice, tho’ there was not Proof plain and full enough to Convict them, yet were they liable to be summoned before the Spiritual Judge, and charged with the Crime. If they confessed, they had a certain Penance immediately enjoin’d them. If they denied, the Judge enjoin’d them Purgation, to be performed on a Day appointed, by their own Oath, and by the Oaths of five or six Neighbours, more or less, according to the Nature of the Crime, and the Condition of the Person, and those to be of good Fame and fober Conversation. The Oath of the Person suspected was, to declare his own Innocence ; and the Oath of the Compurgators, that they believed what he swore was true. If the Person came at the Day appointed, together with his Neighbours, and purged himself according to the Rules of the Church, he was dismissed and declared Innocent, and restored to his good Name ; but was at the same Time enjoined to avoid the Cause of Suspicion, or the Ground of the Fame, for the Time to come. But if he appeared not, he was declared Contumacious, and proceeded against as such ; or if he did appear, and could not perform Purgation ( i.e. either could not swear to his own Innocence, or could not bring others to swear that they believ’d he swore true ) such Failure was taken for Conviction, and the Judge proceeded to enjoin Penance in the same Manner as if the Person had been duly convicted by his own Confession, or by the Testimony of others.
Q. Does it not seem a Hardship that a Man should be taken for Guilty, because others will not swear that they believe him Innocent ?
A. Where the Life and Conversation of any Person hath drawn upon him such a strong and general Presumption of Guilt, that though he swears himself Innocent, six or seven Persons cannot be found in a whole Parish, who believe he swears True, such an one seems to be fully ripe for the Shame and Scandal of publick Penance.
Q. Is Purgation entirely taken away by the forementioned Statute ?
A. The Oath as to the Party accused is taken away, and some maintain that this being taken away, the Foundation of the whole Proceedings, all the Proceedings of Purgation upon common Fame, do fall too. But subsequent Practice, since the Statute, at Archiepiscopal, Episcopal, and Archidiaconal Visitations, and contemporary Expositions upon the Meaning of the Statute, shew the contrary Opinion of those that could best judge of the Intent and Design of our Legislators, viz. that the Statute breaking in upon the Canon Law, or an Ecclesiastical Custom, is to be extended only to that Part of the Form and Method of Purgation, viz. the Oath, which is taken away by it ; that here is still a Legal Purgation left, though not the Canonical ; for it remains that the Party accused should declare his Innocency without Oath, and that the Compurgators may still swear as to their Belief, that what he says is true or false. Besides, if this Branch of Ecclesiastical Discipline be taken away, and common Fame is of no Force to ground a Prosecution, many shameless Lewdnesses, and scandalous Immoralities must go unpunished, and be suffered to reign and triumph.
Q. How many Sorts of Penance are there ?
A. Three. Solemn, which was perform’d in the Beginning of Lent, to which our Church refers in the Commination Office ; Publick and Private.
Q. What is Publick Penance ?
A. Publick Penance is a Punishment imposed for a Crime, by standing in some publick Place, and making Acknowledgment of it, to satisfy the Church for the Scandal given by an evil Example.
Q. How is this usually performed ?
A. In the Case of Incest, Adultery, &c. the Sinner is usually enjoined to do publick Penance in the Cathedral or Parish Church, or publick Market, barefoot and bareheaded, in a white Sheet, and to make an open Confession of his Crime in a prescribed Form of Words.
Q. What is private Penance ?
A. When for smaller Faults, a Satisfaction or Penance is to be made in the Court, or before the Minister and Church-wardens, or some of the Parishioners ; as in Case of Defamation, &c.
Q. What is Commutation of Penance ?
A. When Penance is changed into a Fine or Sum of Money, to be given to pious Uses.
Q. What is to be thought of this Practice ?
A. ’Tis a Liberty liable to be abused upon many Accounts, and hath in all Times been very much abused. And instead of regulating Commutations and the Abuses of them, the Commons in Parliament petitioned ( 1 Rich. II. and 1 Hen. V. ) that there might be no Commutations at all. Nevertheless the Church has made sundry Regulations concerning them heretofore, which, if they were now in Force, would go a great Way to the Correction of them.
Q. What are those wholesome Orders for the due Use and Application of Commutation ?
A. 1. That there be no Commutation at all but for weighty Reasons, and in Cases very particular ; that is to say, either for some great Value or Dignity of the Person, or for Fear of some desperate Event that will follow in the Party that should be put to open Shame. 2. That it be with the Privity and Advice of the Bishop. 3. That the Money be applied to pious and charitable Uses. 4. That if the Crime be publick and notorious, the Satisfaction made to the Church, be signified to the Congregation where the Offender dwells. 5. That the Favour of Commutation shall not be granted a second Time to the same Person for the same Fault.
Q. How many Sorts of Suspension are there ?
A. In the Laws of the Church we read of two Sorts of Suspension ; one relating solely to the Clergy, the other extending also to the Laity.
Q. What is that which relates to the Clergy solely ?
A. Suspension ab Officio & Beneficio jointly, or ab Officio or Beneficio singly ; and may be called a Temporary Degradation or Deprivation, or both.
Q. What is that which relates to the Laity ?
A. Suspensio ab ingressu Ecclesiae, or from hearing Divine Service, and receiving the Holy Sacrament, which may therefore be called a Temporary Excommunication, and was heretofore much in Use for Crimes and Scandals of a lesser Nature, while Christians had true Notions of Church Discipline, and few were found so wicked, as not to reckon it a great Affliction to be debarred the Benefits of Christian Communion, though but for a Time.
Q. Is this Censure still in Force ?
A. Though it is now disused, as being thought no Punishment by those that deserve it, yet it is still a legal Censure of the Church of England, as is evident not only from many ancient Canons and Constitutions in this Kingdom which are still in Force, but also from an express Act of Parlament, which appoints this Punishment for quarrelling, chiding or brawling, in any Church or Church-yard.
Q. What is an Interdict ?
A. As Suspension takes away one Person, so does an Interdict a Multitude at once, from the Communion of Christians ; and oftentimes the Use of the Service and Sermons themselves : The first called an Interdict of Persons, the second an Interdict of Places, and both frequently exercised before the Reformation, upon whole Villages, Towns, Provinces, and even Kingdoms, till they should make Satisfaction for Injuries done, or abstain from Injuries they were doing to the Church. This Censure hath been long disused.
Q. How many Sorts are there of Excommunication ?
A. Major and Minor.
Q. What is Excommunication Major ?
A. An Ecclesiastical Censure where a Christian is excluded from the Communion of the Church in sacred Rights and Privileges, and from the Company of the Faithful, so that ’tis Excommunication to keep Company with them.
Q. What is Excommunication Minor ?
A. When the Person is excluded only from Sacraments and Divine Worship.
Q. Upon what Persons is the Sentence of lesser Excommunication generally pass’d ?
A. Upon such Persons as are guilty of Obstinacy or Disobedience, in not appearing upon a Citation, or not submitting to Penance or other Injunctions of the Court.
Q. What are the Consequences of Excommunication ?
A. No excommunicate Person shall be suffer’d to come within the Church ; nor, if he die under Sentence, shall he be allowed to have Christian Burial. He is likewise disabled to do any Judicial Act, as to sue, to be a Witness, &c. And if he does not submit in Forty Days, a Writ shall go to imprison him. See below.
Q. In what Cases does Excommunication not disable ?
A. If a Bishop is Defendant, an Excommunication by the same Bishop against the Plaintiff shall not disable him, nor an Excommunication against an Appellant while the Appeal is depending : So also if a Mayor and Commonalty or any other Corporation aggregate bring an Appeal ; an Excommunication of the Mayor, &c. shall not disable them, because they sue and answer by Attorney.
Q. What is Excommunication ipso facto ?
A. ’Tis defined by the Canonists to be Excommunicatio facta nullo Ministerio hominis intercedente, and is when a Person is to be looked upon as Excommunicate from the Time of his Offence ; so a Church to which a Clerk is Simoniacally presented, is void ipso facto ; the Presentation was null ab initio, tho’ it be not declared so till many Years after.
Q. Do Offenders who are by Law or Canon declared ipso facto Excommunicate fall under that Sentence without Conviction or Denunciation ?
A. If the Fact be not notorious or evident beyond Exception, it must be proved ; the Offender mull be convicted thereof at Law, and this transmitted to the Ordinary, before he is taken for Excommunicate in foro Ecclesiae ; and even then the Excommunication takes no Effect as to Common Law, till it be decreed by the Ordinary, and published by the Curate of the Place where the Offender lives.
Q. What is the Manner of publishing particular Excommunication ?
A. It is published by Virtue of an Instrument under the Seal of the Court by the Minister of the Parish.
Q. Are Persons who are notoriously, and beyond doubt guilty of any Crimes for which Excommunication ipso facto is decreed against them by the Canons of the Church, really Excommunicated, though they be not particularly, by Name, published and declared to be so ?
A. Yes ; otherwise Excommunicatio ipso facto means no more than Excommunication without the Addition of those Words ; and there will be no Difference between Constitutio sententiae latae and sententiae ferendae.
Q. What Provisions have been made for the due and solemn Exercise of Excommunication in the Church ?
A. There have been divers Provisions made from Time to Time, as, 1. That it be used by Way of Punishment only for great and heinous Crimes. 2. That it be not pronounced rashly and precipitately. 2. That it be pronounced by none but the Bishop or other Persons in Holy Orders ; in Causes of Correction, and where it is a Punishment inflicted upon great Offences, there to be pronounced by the Bishop himself, or other Ecclesiastical Judge in Holy Orders ; and in Cases of Contumacy by a Presbyter who hath Authority from the Bishop or Archdeacon, and whom all Ecclesiastical Judges being Laymen should be obliged to call to their Assistance therein.
Q. Is not the frequent Use of Excommunication in Cases of Contumacy for not appearing or disobeying of Sentences, tho’ in the smallest Matters, and those oft-times of a Civil Nature, one principal Means of bringing it into Contempt ?
A. Yes : But yet this is the only Way which the Spiritual Court hath to enforce Obedience, and therefore an Expedient was thought of in the Reign of Queen Elizabeth, that the Ecclesiastical Judge should pronounce such Persons Contumacious, and in poenam Contumuciae, further pronounce them Ecclesiasticae Jurisdictionis Contemptores ; and if they did not submit in Forty Days, then a Writ de Contumace capiendo to be awarded, with like Force, to all Civil Effects, as the Writ de Excommunicato capiendo had.
Q. What is the Writ de Excommunicato Capiendo ?
A. A Writ commonly called a Significavit, from the Beginning of it, ( Rex vicecomiti Lincoln’ Salutem. Significavit nobis venerabilis Pater H. Lincon’ Episcopus ) directed to the Sheriff upon Certificate of the Bishop under his Seal into the Chancery, to apprehend a Person denounced Excommunicate Forty Days, for Contumacy or Contempt of the Ecclesiastical Laws ; and to commit him to Prison without Bail till he Submits. And this Writ de Excommunicato capiendo is Debitum justitiae, and is expressly said to issue secundum Consuetudinem Angliae, according to the Common Law of the Realm.
Q. How long shall the Excommunication and Imprisonment continue ?
A. Till the Party is reconciled to the Church and dismiss’d by Absolution, and the Writ de Excommunicato deliberando upon Certificate of the Bishop to the King in Chancery, that the Party hath made his Satisfaction to the Church.
Q. What is the Satisfaction or Submission required for Absolution and Deliverance ?
A. The Excomminicate must either make present Satisfaction at or upon his Absolution, or put in Caution that he will hereafter perform what the Bishop shall reasonably and according to Law enjoin him. The usual Way is by real Security, as when a Man engageth Goods, or mortgageth Lands for the Performance, but very often the Ordinaries accept an Oath de parendo Juri & stando Mandatis Ecclesiae in forma juris. Due Caution being offered by the Party, and admitted, the Bishop may command the Sheriff to deliver him out of the Prison ; but if good and sufficient Caution is offer’d and not admitted, then a Writ to the Bishop is provided to deliver him ; and if the Bishop do not deliver him upon the Writ, then the Party may have another Writ to the Sheriff to deliver him, such sufficient Caution being first taken, and not otherwise.
Q. What if the Party Excommunicate appear to a superior Ecclesiastical Judge ?
A. This puts him in the same State he was in before Sentence given, and upon Allegation in Behalf of the Party against whom the Writ hath gone out, that he hath appealed, and upon Proof made thereof by an authentick Instrument, a Supersedeas is provided, or more usually, especially in doubtful Cases, a Scire facias to warn the Bishop or the Party prosecuting, to shew Cause why the Sheriff should not surcease from attaching the Excommunicate, or why he should not deliver him if he be in Prison. If the Bishop in Cases of Office, and the Prosecutor in Cases of Instance, appear not in Chancery, the Party is delivered ; but if they appear, and not the Party, then a Re-attachment goes forth to imprison him.
Q. What does the Canon decree concerning those who continue Excommunicate without Submission ?
A. All who stand Excommunicate, unless absolv’d in Three Months after Sentence, shall every six Months ensuing, as well in the Parish Church as in the Cathedral of the Diocese wherein they remain, by the Minister openly in Time of Divine Service, upon some Sunday, be denounced and declared Excommunicate, that others may thereby be admonished to refrain their Company and Society. Canon 65.
Q. Can none but the Bishop certify Excommunication ?
A. None but the Bishop, unless the Bishop is beyond Sea, or in Remotis, or unless the Certificate is by one that hath Ordinary Jurisdiction, and is immediate Officer to the King’s Courts, as the Archdeacon of Richmond, or Guardian of the Spiritualties when the See is vacant.
Q. Must the Cause of Excommunication be specially shewn or set forth in the Certificate ?
A. Yes, that the Judges may see by it whether the Ecclesiastical Court have Cognisance of the principal Cause, and whether the Excommunication be according to Law.
Q. Will an Excommunication certified under the Seal of the Commissary or Official be allowed ?
A. No ; but the Bishop may certify an Excommunication made by his Commissary ; for the Commissary acts in Right of the Bishop.
Q. If the Sheriff deliver Offenders committed upon the Writ of Significavit without Order of Law – ?
A. Upon Complaint of the Bishop into Chancery, a Writ shall be awarded to the Coroners to apprehend the Party Excommunicated, and an Attachment to cause the Sheriff to appear and answer the Contempt.
Q. What is Deprivation ?
A. An Ecclesiastical Censure by which a Clergyman is deprived of his Benefice.
Q. What is Degradation ?
A. An Ecclesiastical Censure whereby a Clergyman is deprived of his Orders. ’Tis also called Deposition from the Ministry.
Q. Of how many Kinds is Degradation ?
A. There are two Sorts of Degrading at Common Law ; one Summary by Word or Sentence only ; the other Solemn by divesting the Party degraded of those Ornaments and Rights which be the Ensigns of his Order or Degree. He may be solemnly stripp’d of his Clerical Habit.
Q. What Regard have States and Princes usually paid to the Church and Clergy, in Case of the Conviction of Clerks, when any of them have committed a Thing worthy of Death, or open Shame ?
A. That he should not be executed or exposed till he was Degraded, and then to be executed or put to Shame as a Lay Malefactor.
Q. By whom is the Sentence of Deprivation or of Deposition to be pronounced ?
A. By the Bishop only, with the Assistance of his Chancellor, the Dean ( if they may be conveniently had ) and some of the Prebendaries, if the Court be kept near the Cathedral ; or of the Archdeacon if he may be had conveniently, and two other at the least, grave Ministers and Preachers, to be called by the Bishop, when the Court is kept in other Places. Canon 122.
Q. To what Crimes does Deprivation belong by the Common Law ?
A. To those that follow, which have been allowed and confirmed by the Temporal Courts as sufficient Causes of Deprivation. 1. Want of Orders, or the being a meer Layman. 2. Want of Abilities. 3. Want of Age, i.e. of such Age as the Laws of the Church prescribe. 4. Simony. 5. Infidelity and Miscreancy, under which Heads may be reckoned Atheism, Heresy, Schism, and the like. 6. Incontinence. 7. Drunkenness after solemn Admonition. 8. Murder and Manslaughter, at least after Conviction in the Tcmporal Courts. 9. Perjury. 19. Dilapidation. My Lord Coke says, that Dilapidation of Ecclesiastical Palaces, Houses and Buildings, is a good Cause of Deprivation. But tho’ in Equity that Punishment may well belong to Dilapidators ; yet that it hath ever been inflicted, appears not by any Thing that is alledged, either out of the Books of Common or Canon Law, which speak only of Alienations. Some of the abovementioned Crimes have been made punishable with Deprivation by particular Statutes. As to other Causes of Deprivation, which have been made such by Statute Law, they have been spoken to under their proper Heads.
Q. What are the Rules of Common Law concerning Discharges from Spiritual Censures by Pardons ?
A. A Pardon is a Bar to all Suits in the Spiritual Court that are pro Salute Animae, and not excepted, whether ex Officio, or ad instantiam partis.
Q. A Pardon after Sentence and Costs taxed, comes too late to aid the Party in Point of Costs. Nor, Costs being duly taxed before the Time of the Pardon, is the Matter altered, though Appeal is made from the Sentence, because the Party having an Interest in the Costs, which could not be discharged in the Pardon, the first Sentence, as to Costs, is not suspended by the Appeal.
Q. But if Sentence be given, and Costs taxed, and then a Pardon comes relating to Time before such Taxing –– ?
A. The Pardon takes away the Costs, unless such Costs were awarded before the Time which the Pardon specifies.
Q. What if one refuses to pay Costs duly awarded and taxed, and for Contempt is excommunicated and taken upon a Writ de Excommunicato capiendo, and then comes a general Pardon of all Contempts –– ?
A. Though the Costs are not discharged, yet the Excommunication, and every thing consequent upon that, is discharged, and for Payment of the Costs, the other Party must have New Process
3. The Principal being pardoned, the Accessory is also pardoned and taken away, i.e. if the Crime is within the Pardon, and within the Time of the Pardon, the Sentence and Punishment for that Crime are immediately taken away, and the Party as to these, restored to his former State. And this is not only applied to Penances and other Spiritual Censures of the same Kind, as Sentences that are taken off by Pardon, but also to Deprivation of Benefices ; and not only to the preventing of Deprivations, but even to the making the Party who was acually deprived in Time of Parliament, to be Incumbent as before, by Judgment in Law, without being driven so much as to reverse the Sentence in the Ecclesiastical Court.
4. A Pardon cannot restore any Person to a Benefice, which is become void by Act of Parliament.
Q. What Restraints are laid upon Spiritual Courts from inflicting Temporal Punishments ?
A. No Spiritual Judge shall inflict any Pain, Penalty, Fine, Amerciament, Imprisonment, or other Corporal Punishment, for any Contempt, Misdemeanor, Crime, Offence, Matter or Thing whatever, belonging to Ecclesiastical Jurisdiction, upon Pain to forfeit treble Damages to the Party grieved, and 100l. to him or them who shall first sue for the same, and to be disabled from executing any Office or Employment in any Court of Justice whatsoever. 16 Car. I. c. 2.
Tit. XLVII.
What are the Laws which relate to Blasphemy and Profaneness ?
A. To prevent the Abuse of the Name of God in Plays, ’tis enacted, that any Player, &c. profanely using the Name of God, Jesus Christ, the Holy Ghost, or of the Trinity, in any Stage-Play, Interlude, Show, &c. shall forfeit Ten Pounds for every such Offence. 3 Jac. I. c. 21.
Whoever shall deny any Person of the Trinity, by Writing, Teaching, Printing, or advised Speaking, or assert more Gods than one, or deny the Christian Religion to be true, or the Holy Scripture of the Old and New Testament to be of Divine Authority, upon Conviction by the Oath of two or more credible Witnesses, shall for the first Offence be adjudged incapable and disabled in Law, to enjoy any Office Ecclesiastical, Civil, or Military, or any Profit appertaining to such Office ; and if at the Time of his Conviction he shall possess any such Office, Place or Employment, it shall be void. For the second Offence, shall be disabled to sue, prosecute, plead, or use any Action or Information, in any Court of Law or Equity, or to be Guardian, or Executor, or Administrator, or capable of any Legacy or Deed of Gift, or to bear any Office Civil or Military, or Benefice Ecclesiastical for ever, and shall suffer Imprisonment for three Years without Bail, from the Time of such Conviction. 9, 10 Will. III. c. 32.
Q. What Time is allowed for Information, as to Words spoken ?
A. The Information must be within four Days, and the Prosecution within three Months after such Information.
Q. Is there no Way to be discharged of the Penalties of this Act ?
A. For the first Offence any Person upon renouncing such Opinion, or acknowledging such Offence in open Court, shall be discharged from all Penalties and Disabilities incurred by such Conviction.
Q. What are the Penalties by Statute upon Cursing and Swearing ?
A. If any Person profanely Curses or Swears in the Presence or Hearing of any Justice of Peace of the County, &c. or shall hereof be convicted by the Oath of one Witness, or Confession of the Party offending before any Justice of Peace, Mayor, &c. the Offender shall forfeit to the Use of the Poor, ( if Servant, Labourer, Common Soldier, or Seaman ) one Shilling. And every other Person two Shillings. For the second Offence double, and for the third Offence treble, to be levied by Distress by Warrant of one Justice. If no Distress, the Party to be set in the Stocks one Hour for one Offence, two Hours for more than one, if above Sixteen Years of Age : If under that Age, and he doth not pay the Penalty, he shall be whipped by the Constable, by Warrant from the Justice, or by the Parent, Master or Guardian in the Presence of the Constable. 6, 7 Will. III. c. 11.
Any Justice or Magistrate omitting his Duty in the Execution of this Act, forfeits Five Pounds.
This Act must be read by Ministers in the Church the next Sunday after every Quarter-day, viz. at Midsummer, Michaelmas, Chrismas, and Lady-Day, upon Forfeiture of Twenty Shillings for every Omission. Information must be given within ten Days. Convictions are to be Registered and certified to the Sessions.
[Note, The Laws against profaning the Lord’s Day, and for the religious Observance thereof, are placed under Title X. Solemn Times of Divine Service.]
Q. What Penalty is there upon Buggery and Sodomy ?
A. By 25 Hen. VIII. c. 6. ’Tis Felony without Benefit of Clergy * ; Sodomites were anciently to be burnt, and some ancient Books make the Punishment of it burning alive, and call it Treason, i.e. Treason against the King of Heaven, or a Rebellion against the Order of Nature which he hath established.
* Two remarkable Executions have been made upon this Statute, the first of Stafford, 5 Jac. I. who was found guity in the King’s Bench ; the second of the Lord Audly, who was araigned and found guilty by his Peers ; and both were hanged as the Act directs.Q. What Penalty is there upon Rape and Ravishment ?
A. It is Felony without Clergy to commit a Rape, i.e. to know a Woman carnally by Force. And whosoever shall carnally know and abuse any Woman-Child under the Age of Ten Years, shall suffer as a Felon, whether with her Consent or without it. 18 Eliz. c. 7.
Q. What if a Woman goes away with an Adulterer, and continues with him ?
A. She shall be debarred of her Dower, except her Husband willingly reconcile and suffer her to dwell with him. 13 Edw. I. c. 34.
Q. What is a Bastard in the Eye of the Law ?
A. He that is born out of Marriage. By the Common Law, if the Husband is within the four Seas ( the Jurisdiction of the King of England ) so that by Intendment of Law he may come to his Wife, and the Wife hath Issue ; no Proof is to be admitted to prove the Child a Bastard, except there is an apparent Impossibility that the Husband should be the Father of it, as if the Husband is but Eight Years old, &c. then such Issue is a Bastard, though born within Marriage. But if the Issue is born within a Day after Marriage between Parties of full Age, where the Husband is under no apparent Impossibility, the Child is legitimate, and is supposed to be the Child of the Husband.
Q. What is the Law concerning Bastards and their reputed Fathers, &c.
A. Any Justice may punish the Father and Mother by Corporal Punishment ( tho’ this is seldom inflicted where the Parish is saved harmless ) and oblige one of them to maintain the Child, and in Default of obeying such Order, may commit the Party to Gaol.
Any lewd Woman having a Bastard which may be chargeable to the Parish, shall be sent to the House of Correction for one Year, and offending again shall remain there till she find Sureties for her good Behaviour. 18 Eliz. cap. 3. 7 Jac. 1. cap. 4.
Any Woman delivered of a Bastard Child, and endeavouring to conceal the Death of it, shall suffer Death as in Case of Murder, unless, she can prove by one Witness at least that it was born Dead. 21 Jac. I. c. 27.
If any reputed Father or Mother of Bastard Children, having sufficient to maintain them, run away and leave them, the Church-wardens may seize so much of the Goods and Chattels for the Discharge of the Parish, as two Justices shall think sufficient, and dispose of them by Order of Sessions. 13 Car. II. c. 12.
Q. What Penalty is there upon Drunkenness ?
A. If any Person shall be Drunk and convict thereof, he shall forfeit for every Offence five Shillings, to be paid within a Week after Conviction to the Church-wardens, for the Use of the Poor of the Parish : Or, if not able to pay, be committed to the Stocks by the Space of six Hours. One convicted a second Time in Drunkenness shall be bound in Ten Pounds, with two Sureties to his good Behaviour. 4 Jac. I. c. 5.
Any Inn-keepers suffering Persons to tipple in their Houses, and to continue Drinking, other than invited by Travellers or labouring Men for one Hour at Dinner, or Labourers lodging there, or for necessary Occasions to be allowed by two Justices, shall be disabled for three Years, and the Person offending by Tippling, &c. pays three Shillings and Four Pence ; by Drunkenness Five Shillings. Ibid.
Tit. XLVIII.
What Authority have Bishops to grant Licences for the Practice of Surgery ?
A. By 3 Hen. VIII. c. 11. No Person in London, or within seven Miles shall practise Physick or Surgery, unless licensed by the Bishop of London, or Dean of St. Paul’s, calling to him four Doctors of Physick, and for Surgery, other expert Persons in that Faculty, upon Pain to forfeit five Pounds per Month ; nor any Person out of the said City and Precinct in any other Diocese, till first examined and approved by the Bishop of the Diocese, or his Vicar-General, upon the like Penalty ; one Half to the King, the other to him that will sue for it. Afterwards, by Stat. 14, 15 Hen. VIII. it was enacted, that none should practise Physick in the City of London or seven Miles round, but who should be first licensed under the Common Seal of the President and College of Physicians, nor in any other Part of England, till such Time that he be examined at London by the said President, and three of the Elects, and have from them Testimonials of their Approving and Examination : Unless : Unless Graduates in Oxford or Cambridge without Grace.
Q. What Authority have Bishops over Schools and Schoolmasters ?
A. Agreeable to the ancient as well as modern Laws of the Church, and also to the Original Institution of them, Schools for the Instruction and Education of Youth, have ever been under the Direction of the Spiritual Power : And by the Seventy-seventh Canon, no Man shall teach, either in publick School, or private House, without Licence from the Bishop or Ordinary, and without having first subscribed to the first and third Articles, and Part of the second, in the Thirty-sixth Canon.
Q. What Penalty is there by Statute upon teaching School without Licence, &c.
A. By 13, 14 Car. II. c. 4. Every Schoolmaster keeping any publick or private School, and every Tutor in any private Family, shall subscribe the Declaration of Conformity ; and unless he be licensed by the Ordinary, and hath subscribed the said Declaration, he shall for the first Offence suffer three Months Imprisonment, and for the second, three Months Imprisonment and five Pounds Forfeiture.
Q. What is required of a Person who sues for a Licence ?
A. By 11 Ann. Sess. 2. c. 7. The Bishops, &c. shall grant no Licence, unless the Person who sues for the same, produce a Certificate of his having received the Sacrament according to the Usage of the Church of England, within one Year next before the granting such Licence, under the Hand of the Minister and one of the Church-wardens, and shall have taken and subscribed the Oaths of Allegiance and Supremacy, and Abjuration, and made and subscribed the Declaration against Transubstantiation, &c. before the Bishop or Ordinary, who is by this Act required to administer and receive such Oath and Declaration, and keep a Register of the same, and of the subscribing such Oaths and Declarations, &c.
Q. Does this Act extend to all Tutors and Schoolmasters whatever ?
A. Not to any Tutor in the Universities, nor to any Tutor in Noblemen’s Families, so as such Tutor do in every Respect qualify himself according to this Act, ( except only in that of taking Licence from the Bishop or Ordinary. ) Nor to any Person who shall instruct Youth in Reading, Writing, Arithmetick or Mathematical Learning only, so far as it relates to Navigation, and taught in English only.
Q. What is the Duty of a Schoolmaster ?
A. Schoolmasters are by the Seventy-ninth Canon to teach their Scholars the Catechism, and bring them to Church upon Holydays, where there are Sermons, and to teach them select Sentences of Scripture, and Henry VIII’s Grammar ; in which Things if they offend, they shall be suspended.
Q. What if a Person licensed shall teach any other Catechism than that in the Common-Prayer ?
A. His Licence shall be void, and he shall be liable to the Penalties of the said Act, 11 Ann. c. 7.
Q. What Penalty is there upon a Papist teaching School, &c?
A. If any Papist shall be convicted of keeping School, or of taking upon himself the Education, or Government, or Boarding of Youth, he shall be adjudged to perpetual Imprisonment. 11, 12 Will. III. c. 4.
Q. A Schoolmaster may be prosecuted in the Spiritual Court for teaching without a Licence ; but may be turned out by the Ordinary, if he deserves it ?
A. It has been held, that where the Patronage is not in the Ordinary, but in the Feoffees, or other Patrons, the Ordinary cannot put a Man out, and Prohibition was granted ; the Suggestion for which was, that he came in by Election, and that it was his Freehold.
Q. What is the Consequence of this Position ?
A. That a Schoolmaster being once licensed and having subscribed, as he is bound, to the Articles and Liturgy of the Church of England, although he shall afterwards instil into the Youth that are under his Care, Doctrines that are not only contrary to these, but to the Christian Religion in general, and although this shall appear never so plainly, yet he shall go on in the Defiance of the Ordinary, to corrupt Youth, and to act in downright Contradiction to what he subscribed before him, and shall not be questioned in order to Deprivation, but by Feoffees or Patrons, i.e. by those, who, ordinarily speaking, are very uncapable of judging whether he be guilty or innocent upon these important Heads.
Q. Does the Argument of Election and Freehold carry any Weight in it ?
A. If these are a Bar to his being deprived by Ordinary Authority, then Presentation by a Lay Patron, and the Parson’s Freehold in the Benefice, are as good a Plea against Deprivation by the like Authority : And yet this Plea hath always been rejected by the Temporal Courts, and with very good Reason.
Q. What other Penalties are there by Statute upon maintaining Schoolmasters and teaching School without Licence of the Ordinary ?
A. By 23 Eliz. cap. 1. No Corporation, or other Person, shall keep or maintain a Schoolmaster, which does not constantly repair to Church, or is not allowed by the Ordinary, on Pain of ten Pounds a Month ; and such Schoolmaster shall be disabled for ever to teach Youth, and suffer a Year’s Imprisonment. And,
1 Jac. I. c. 4. § 9. No Person shall be a Schoolmaster in any Place out of the Universities, except it be in some publick Grammar School, or some Gentleman’s House that is no Recusant, and except the Person be licensed by the Ordinary, on Pain that as well the Schoolmaster, as the Person that retains him, shall each of them for every Day forfeit forty Shillings.
Q. Can any one teach Grammar in a Country Town where there is a publick School founded already ?
A. The 78th Canon disallows it ; and in Ecclesiastical Records we meet with Inhibitions to Schoolmasters not to teach in praejudicium liberae Scholae.
Q. Who have the Right of visiting Hospitals ?
A. By 2 Hen. V. c. 1. All Hospitals of Royal Patronage and Foundation shall be visited by the Ordinaries in Virtue of the King’s Commission ; and all other Hospitals, by the Ordinaries, according to the Laws of Holy Church, as to them belongeth. Yet ’tis said by my Lord Coke, that if the Hospital be Lay, the Patron shall visit, and not the Bishop.
Q. Can Hospitals be founded without Licence or Writ of ad quod Damnum ?
A. By 39 Eliz. c. 5. ( made perpetual 21 Jac. I. c. 1. ) Any Person seised of an Estate in Fee-Simple, his Heirs, Executors, and Assigns, by Deed inrolled in Chancery, may found an Hospital to have Continuance for ever ; and from Time to Time place therein such Head and Members, and such Number of Poor, as to him, his Heirs and Assigns shall seem convenient. Which Hospital shall be incorporated and have perpetual Succession, under such Name, and be governed, ordered, directed, and visited, by such Persons, and according to such Statutes, not being contrary to the Laws of the Land, as the Founder, or Founders thereof in Writing under Hand and Seal shall appoint. And shall also have such Power to purchase, take, hold, receive, and enjoy, and have to them and to their Successors for ever, as well Goods and Chattels, as Manors, Lands, Tenements, and Hereditaments, being Freehold, of any Person or Persons whatsoever, ( so that the same exceed not the yearly Value of two hundred Pounds, above all Charges and Reprises, and be not holden in Capite, or by Knight’s Service ) without Licence or Writ of ad quod damnum, the Statute of Mortmain, or any other Statute notwithstanding. Provided that no Hospital shall be erected without an Endowment of Lands, &c. of the clear yearly Value of Ten Pounds.
Q. Do the Words of this Statute which enable the Founders to appoint a Visitor, take from the Bishop that Power which de Jure he had, and which by the forementioned Statute of 2 Hen. V. c. 1. is recognised and confirmed, to visit Hospitals and other charitable Foundations ?
A. No ; the Appointment here mentioned seems not to exclude those from visiting who by Common Law and by express Act of Parliament had a general Right before to visit Hospitals ; inasmuch as the same Place may well be visitable by Two different Powers : So it is in the Case of every Cathedral and every Diocese, which are Visitable as well by the Metropolitan as the Bishop.
Q. But is it not usually said on this Occasion, that where a Local Visitor is appointed, the Visitation of the Ordinary can be exercised upon the Persons only, according to the Canons of the Church, and not according to the Local Statutes ?
A. This is, and ever since the Time of Hen. VIII. hath been understood otherwise ; since the Bishops of the Churches of the new Foundation, ( who are constituted Local Visitors by the King ) do always visit upon the Local Statutes, when they visit Triennially and Jure Ordinario, as much as when they visit Jure Locali.
Q. What Care is taken by Statute to redress Misemployment of Lands, Goods and Stocks of Money given to Charitable Uses ?
A. By 43 Eliz. c. 4. the Lord High Chancellor, ( or Chancellor of the Dutchy of Lancaster, within that Precinct ) may award Commissions into any Part of the Realm respectively, to the Bishop and his Chancellor, ( if there be any Bishop of the Diocese at that Time ) and to other Persons of good Behaviour, authorizing four or more of them to inquire, as well by the Oaths of twelve or more lawful Men of the Country, as by all other good and lawful Ways, of all Grants, Gifts, Augmentations, Limitations and Appointments, and of all Abuses and Misemployments of all Lands, Tenements, and Hereditaments, and of all Goods and Chattels, given, limited and appointed to charitable Uses, and make Orders for the more faithful Employment of them which Orders shall stand firm and good till altered by the Lord Chancellor, upon Complaint by any Party grieved to be made to him.
Q. Does this Act extend to Corporations where there are Special Governors or Visitors appointed ?
A. No ; where the Land is given to Persons in Trust to perform a charitable Use, and the Donor hath appointed Special Visitors to see that the Trustees perform the Use according to his Intent ; in that Case, if the Trustees defraud the Trust, the Commissioners cannot meddle, but the Visitors are to reform it : But where the Visitors are Trustees also, there the Commissioners may, by their Decree, reform the Abuse of the Charity ; for otherwise, such Breach of Trust would escape unpunished, unless in Chancery or in Parliament ; which were a tedious and chargeable Suit for poor Persons.
Q. Is it necessary that the Bishop or his Chancellor should be present at the Execution of the Commission ?
A. No ; for none is of the Quorum, but the Bishop must be named in the Commission, if the See is full, otherwise the Commission is void.
Q. What if the See be void at the Sealing of the Commission –– ?
A. Then the Bishop need not be named a Commissioner, neither his Chancellor.
Q. If the Bishop be named a Commissioner, and die before the Certificate returned — ?
A. This doth not avoid the Commission, but the other Commissioners may proceed.
Q. Is there any Proviso in this Act for the Jurisdiction of the Ordinary ?
A. ’Tis specially provided, that neither this Act, nor any Thing therein contained, shall be any Way prejudicial or hurtful to the Jurisdiction or Power of the Ordinary, but that he may lawfully in every Cause execute and perform the same, as though this Act had never been had or made.
Q. Have the Commissioners Power to decree Recompence where there has been Breach of Trust, or Fraud ?
A. They or any four or more of them may make Decrees and Orders for Recompence to be made, by any Person or Persons, who being put in Trust, or having Notice of the charitable Uses, hath or shall break the same Trust, or defraud the same Uses, by any Conveyance, Gift, Grant, Lease, Demise, Release or Conversion whatsoever, and against the Heirs, Executors and Administrators of him, them, or any of them, having Assets in Law or Equity, so far as the same Assets will extend.
Q. How are their Decrees to be enforced ?
A. They shall be certified into the Court of Chancery, and the Lord Chancellor ( or Chancellor of the Dutchy ) shall take Order for the due Execution of them.
Q. What if any Person finds himself grieved with any of the said Orders, Judgments or Decrees ?
A. He may complain to the Chancellor, &c. who shall proceed to the Re-examination, Hearing and Determining thereof, and upon Hearing thereof, shall and may annul, diminish, alter, or enlarge the said Orders, and tax and award good Costs of Suit, against such Persons as shall be found to complain without just and sufficient Cause.
Q. Can such Determination, once made, be re-examined upon a Bill of Review, as is usual in other Cases in Chancery ?
A. No ; here the Decree is conclusive, because it takes its Authority by the Act of Parliament, which mentions but one Examination. But the Party grieved may petition the King in Parliament, and have his Complaint examined there, and so the Decree may be confirmed, altered or annulled ; and then be final.
Q. What is incumbent upon the Minister and Church-wardens with respect to Briefs ?
A. Being sent or delivered to the Church-wardens, they shall endorse the Time of their receiving them, and forthwith deliver them to the Ministers or Curates, who, upon receiving them, shall in like Manner endorse the Time they respectively received the same, and set their Names thereto ; and on some Sunday, within two Months after such Receipt, immediately before Sermon, openly read, or cause them to be read, in their respective Churches. The Church-wardens shall collect, either in the Church, or from House to House, as the Brief directs ; and on every such Collection made, the Sum collected, with the Time and Place, fairly written, in Words at length, shall be endorsed, and signed by the Minister and Church-wardens. The Church-wardens, upon Delivery of the Briefs and Moneys collected thereon to the Undertaker or Collector of them, shall take a Receipt for the same, in some Book to be kept for that Purpose ; the Briefs shall be returned in six Months. In every Parish shall be kept a Register by the Minister, of all Moneys collected by Virtue of such Briefs, therein also inserting the Occasion of the Brief, and Time when the same was collected, to which all Persons at all Times may resort without Fee.
Q. What Penalty is there upon Minister or Church-warden, offending, or neglecting his Duty in the Premises ?
A. The Penalty of twenty Pounds, to be recovered by Action of Debt, Bill, Plaint, or Information. 4, 5 Ann. c. 14.
Q. What Penalty is there upon Farming Briefs ?
Tit. XLIX.
What is meant by Benefit of the Clergy ?
A. Benefit of the Clergy was an ancient Privilege of the Church, where one in Orders claimed to be delivered to his Ordinary, to purge himself of a Felony. For the Pope endeavoured to exempt the Clergy from the Jurisdiction of Lay Judges, in Case of Life and Member ; which the Temporal Courts would not yield to, but only in Part, ( viz. ) as to this Privilege in Case of Felony. The Controversy between the Ecclesiastical and Temporal Jurisdiction being thus adjusted, all Persons that could read were allowed to be Clerks ; for heretofore few were bred up to Learning, unless those which were designed for Orders, and this favourable Construction of the Statutes, was not only intended as an Encouragement to Learning, but as an Exemption of such who were capable of receiving any Orders when there was Occasion for their Service.
Q. Was Benefit of Clergy to be claimed before or after Conviction ?
A. The Claim of Clergy might anciently be made upon Arraignment, and before Conviction, or as soon as the Prisoner was brought to the Bar. Afterwards it could not be claimed till after Conviction ; which Course was taken by the Temporal Courts for two Ends ; one, to retain their Jurisdiction over the Clergy, which the Clergy laboured to disannul, by challenging the Prisoner at the first ; the other, to bring Forfeiture of Goods to the King by the Means of the Common Law, that the Offence should not utterly pass unpunished by the Temporal Court, and yet the Life of the Offender be saved. This Alteration was made in the Time of Hen. VI. The Forfeitures, if the Clerk purged himself, were to be restored.
Q. What was the Method of Purgation ?
A. The Clerk, being delivered to the Ordinary, was to purge himself by his own Oath, affirming his Innocency, and the Oaths of twelve Compurgators, as to their Belief of it, before a Jury of twelve Clerks. If he failed of his Purgation, he was deprived of his Character, or he was to be kept in Prison till a Pardon ; if he purged himself, he was set at Liberty. Sometimes the Delivery to the Ordinary was without Purgation, as upon Attainder by Confession of the Felony, or by Verdict, where the Felony was notorious, and then the Clerk was to be degraded or kept in Prison by the Ordinary.
Q. Was there no Difference made between those who could read, and those who were really Clerks, in this Respect ?
A. By 4 Hen. VII. c. 13. a Convict of Felony ( not being within Orders ) shall be burned in the Brawn of the Left Thumb before he is delivered to the Ordinary ; and every Person ( not being within Orders ) which hath once been admitted to the Benefit of Clergy, upon the second Arraignment shall not be admitted to it : But Clerks may have the Benefit of Clergy twice, and shall not be burnt in the Hand.
Q. When was Purgation taken away ?
A. By 18 Eliz. c. 7. An Offender admitted to his Clergy, after Burning in the Hand, shall not be delivered to his Ordinary, but shall be enlarged by the Court, or be detained in Prison at Discretion ; but not longer than for one Year.
Q. Is Reading laid aside as well as Purgation ?
A. Yes, by 5 Ann. c. 6. If any Person convict of such Felony for which he ought to have the Benefit of Clergy, doth pray the Benefit of this Act, he shall not be required to Read, but shall be punished as a Clerk convict ; and Persons burned in the Hand for Theft or Larceny, may be sent by the Judges to a House of Correction or Workhouse, not less than six Months, nor above a Year. And by 4 Geo. I. c. 11. Persons convict of Larceny, &c. within the Benefit of the Clergy, may be sent to the Plantations in America for seven Years instead of being Burnt in the Hand.
Q. Is Clergy allowed in all Felonies ?
A. There were few Cases wherein the Common Law denied it, unless in Case of High Treason and Sacrilege, by 25 Ed. II. c. 4. But this Privilege is taken away by many subsequent Statutes in several Offences ; and in all Felonies where it is not expressly taken away by some Statute, it shall be allowed. Women also upon Conviction shall suffer the same Punishment as a Man should suffer that has the Benefit of his Clergy allowed him in the like Case.
Tit. L.
What was the ancient Privilege of Sanctuary ?
A. Persons having committed any Offence for which they might be prosecuted to the Loss of Life or Limb, might flee to the Church or Church-yard for Protection ; or to some Religious Houses, having Privilege of Sanctuary, and there either continue, or, abjuring the Realm, be allowed to depart without Molestation, whilst upon the Highway, to any Port which they should choose.
Q. How long might Persons thus fleeing for Sanctuary be protected ?
A. Sanctuary, de jure Communi, was only for forty Days, which was the Case of all Parochial Churches and Church-yards ; the Enjoyment of it for Life, or as long as the Party pleased, which was usually the Case of Religious Houses, depended upon Special Grants, which Grants were made by the King, and confirmed by the Pope.
Q. Of what Antiquity was this Privilege ?
A. This Custom of the Christian Church, taken from the Jewish Law, is as old as the Time of Constantine the Great, and seems at first to have been a Privilege more peculiarly annexed to the Altar, ( called therefore atulostrapeza, or the Table from which no one could be ravished or taken away. ) But in the Theodosian Code, under the Title De his qui ad Ecclesias Confugiunt, not only the innermost Part of the Temple, viz. the Altar and the Body of the Church, are intitled to the Privilege of Sanctuary, but also the Houses and Lodgings of Bishops and Clergy, with Gardens, Baths, Courts and Cloisters.
Q. What was the Design of Sanctuary ?
A. Not to patronize Wickedness, or to shelter Men from the due Execution of Justice, or the Force of the Laws in ordinary Cases ; but chiefly to be a Refuge for the Innocent, the Injured and Oppressed : Or, in doubtful Cases, whether Criminal or Civil, only to give Men Protection so long, till they might have an equitable and fair Hearing of the Judges, and not be proceeded against barbarously and rigorously, under Pretence and Colour of Justice, or at most, only to give Bishops Opportunity to intercede for Criminals and Delinquents, in such Cases as it was both becoming and lawful for Bishops to turn Intercessors. To which may be added, that the Amendment of the Persons was probably one great Reason why many religious Houses were allow’d perpetual Sanctuary, or during Life ; that they might there spend the Remainder of their Days in Piety and Devotion.
Q. How came Sanctuaries in England to be abolished ? and when ?
A. It being found by Experience that this Practcice was much abused, and an Encouragement to many licentious and disorderly Practices, it was taken away for Felony, Murder, and all grosser Crimes, by Stat. 32 Hen. VIII. c. 12. but as for lesser Crimes, not till the 21st of King James I. when it was enacted, that no Sanctuary or Privilege of Sanctuary should be hereafter admitted or allow’d in any Case.
Tit. LI.
What Rules do we meet with in the Legatine and Provincial Constitutions, concerning the Foundation of Religious Houses, and the Admission, Probation, and Profession of the Religious ?
A. In the first Place, whoever had a Mind to found a Religious House, was obliged to take the Rule and Institution from the Ordinary of the Place. As to the Age of Admission, Monks were not to be received, in England, under the Age of Eighteen Years ; and by a Statute 4 Hen. IV. c. 17. no Fryars ( of which there were four Orders, viz. Minors, Augustines, Preachers, and Carmelites ) could receive into their Order any Infant under the Age of Fourteen, without the Consent of his Parents or Guardians. Nothing was to be given for Admission ; and the Novices, after a Year of Probation, were obliged to make Profession ; nor could they, having once professed, return to the Secular Life, without Dispensation from the Pope.
Q. What general Restraints were they under besides those of the Rule of their Order ?
A. They were forbid to enjoy Property, or to traffick, or to engage themselves in Secular Business. They could neither make a Will, nor be Executors, nor take upon them the Distribution of Goods, without the Engagement of the Superior for their Fidelity, or Licence from their Ordinary. They were confined to their Houses, nor suffer’d to go abroad without leave of the Superior : But particularly the Nuns were not to go abroad, tho’ upon a just Occasion, alone, nor without a Day fixt for their Return ; nor to stay out of their Houses, even with their nearest Relations, for above three Days.
They might go into the Oratory, for Prayer ; the Chapter, for Penance ; the Dormitory and Refectory, for Sustenance and Refreshment ; at all other Times they were to be confined within their Cloyster, and give themselves to Watchfulness and Contemplation ; nor were any Seculars allowed to have Access to them, but for urgent Cause, nor to converse with them, otherwise than in publick Places where there could be no Suspicion, and in the Presence of at least another Nun.
Q. What Regulations were the Religious under in Respect of Diet, Furniture, and Apparel ?
A. They had stated Hours at which they were obliged to eat in common, and at no other Times, unless in the Infirmary, when for Weakness or other just Cause, they had a Relaxation from the Austerities of their Religious Observances, during which Time they were said in Misericordia conmmorari ; but even then they were obliged to have two Seniors at the least, to be Witnesses of their Behaviour, and to testify it to the Chapter ; what remained of their Meals was to be given to the Poor. Their Furniture and Apparel were to be plain and cheap, and their Diet moderate : The Benedictines in particular obliged themselves to a total Abstinence from Flesh.
Q. What particular Rules were there for Piety and Chastity in Religious Houses.
A. The Abbots were obliged to change their Chaplains, or some one of them, yearly, that they might have the more Witnesses of their Conversation, who might be ready to attest their Innocence in Case of Scandal. The Religious were enjoined to make frequent Confessions, and the Superiors to make Enquiry once a Month at least, whether this was duly observed. To commit Lewdness with a Nun was called Sacrilege and Incest, and by a Constitution of Archbishop Peccham, whoever was guilty of it incurr’d the Greater Excommunication, and was not to be absolved, ( unless at the Point of Death ) but by the Bishop alone.
Q. How often were the Religious obliged to hold their General Chapters ?
A. The Abbots and Priors, &c. were by a Decree of the Council of Lateran under Innocent III. to hold a general Chapter every three Years, in which all who were of the same Order and Province were obliged to join : And when some Religious Houses of the Order of St. Augustine, who had been separated from the Mother Churches beyond Sea, and who differed from the rest of the same Order in the Province of Canterbury, upon Account of Ceremonies, had therefore refused to join with them in the General Chapter, a Constitution was made by Archbishop Peccham to oblige them so to join ; or at least to hold Chapters of their own, if the Difference was in Substantials, viz. in the Abdication of Property, in the Observation of Chastity, and in Obedience.
Q. What Care was taken that the Religious should be acqainted with the Constitutions ?
A. The Abbots and Priors were to take Care that the Chief of them, which related to them and their Order, should be written immediately after the Rule, and publickly read twice a Year in the Monasteries, at the Beginning of Advent and Lent.
Q. What Rules were there for the better Ordering of their Temporal Possessions ?
A. The Governors of Religious Houses are by a Constitution of Archbishop Stephen forbid to sell or give * Corrodies, either Temporary or Perpetual, to any Persons, without urgent Cause, and the Consent of the Diocesan. † Liveries also ( which is but another Name for Corrodies ) are forbid to be sold by a Constitution of Othobon, upon Pain of Anathema.
* See above. † Certum quid ( quod communiter Liberationes appellant ) communiter vendant & assignant pro vitae necessariis, singulis diebus vel certis temporibus exsolvendum. Othob.No Religious were allow’d to farm any of the Possessions of the House, nor to have the Custody of a Manor, nor to farm a Church in which they had an Interest.
The Obediantaries, ( i.e. those who were under the Obedience of their Prelates, and concern’d in the Administration of Offices belonging to the Monasteries ) and also the greater Prelates, ( i.e. the Abbots and Priors ) were to account before the Convent, at least twice a Year for all Receipts and Dibursemennts.
Q. In what Manner were Religious Houses protected from Burdens and Impositions ?
A. They were greatly overcharged by the Resort of great Men and others, who lived upon them, fished in their Ponds, hunted in their Parks, lodg’d in their Houses, took away their Horses and Carriages, &c. and all this without their Leave or Consent, till 3 Edw. I. c. 1. an Act was made to relieve them from these Oppressions under severe Penalties. Another Burden which they lay under, was from the Exactions of Superiors Aliens, ( i.e. where the Abbots and Priors lived beyond Sea ) who at their Pleasure set great Taxes upon the Houses in Subjection to them here, to the Impoverishment of the Houses, and defeating the Ends of their Foundation. This Grievance also was provided against by a Statute 35 Edw. I. forbidding both the imposing such Taxes, and also the sending or carrying them beyond Seas, and making void any Donation, which should pass under any other Seal than the common Seal of the Convent.
Tit. LII.
What are Knights Templars ?
A. They are thus described by Sir H. Spelman, Templarij dicti sint, Ordo Militum qui in Templo Hierosolymis sedem habuere : id voventes, ut peregrinis tutum redderent iter Hierosolymitanum, venientesque exciperent Hospitio. Institutus autem fuit hic Ordo Anno 1099. For according to the Superstition of those Days, Pilgrimage to the Holy Land in Person, was thought to be great Merit, and one of the highest Acts of Devotion and Reverence to our Saviour ; and the next to that was to vow Pilgrimages thither on their Sick Beds, in Case they recovered ; or if they did nor recover, to leave Lands for the Maintenance of a Knight to go thither, and fight against the Infidels. For this also, the Guarding of the Holy Lands against Infidels, was undertaken by that Order, as well as the conducting and entertaining of Pilgrims.
Q. When was this Order suppress’d ?
A. The whole Order was suppressed by Pope Clement the Vth. in a General Council at Vienna, Anno 1312 ; many and great Abuses having been charged upon them, and particularly that instead of conducing, they betray’d and robb’d the Pilgrims.
Q. What became of the Lands in England belonging to the Templars, upon their Suppresson ?
A. They were given to the Knights Hospitallers. by 17 Edw. II. as being ordained, instituted and canoniz’d, for Defence of Christians and Holy Church, i.e. for the same Ends that the Templars were.
Q. Who were the Hospitallers ?
A. An Order of Knights, called Knights of Rhodes, or of St. John of Jerusalem, commonly called Hospitallers, from receiving and entertaining Pilgrims to the Holy Land in their Hospital at Jerusalem.
Q. When was this Order suppressed ?
A. By 32 Hen. VIII. c. 24. for maintaining the Authority of the Pope, and defaming the King and his People for abolishing it.
Q. What were the three general Orders of Religious ?
A. All Religious, Monks or Canons, were obliged to join themselves either to the Order of St. Bennet, St. Basil, or St. Austin ; there were the principal Orders. Some instead of St. Basil, who wrote his Rule for Monks Anno 350, reckon St. Francis.
Q. What were the Benedictines ?
A. Those of the Order of St. Bennet, who writ his Rule at Mount Cassin, about the Year 516, which was approved by the whole Church. Of this Order have been four Emperors, twelve Empresses, six and forty Kings, and one and fifty Queens.
Q. What were the Cluniacks ?
A. A Reform of St. Bennet’s Order, the first Institutor of which was Abbot Berno, to whom William then Duke of Aquitain, gave the Place called Clugny in Burgundy, for their first Habitation, Anno 890.
Q. What were the Cistercians ?
A. An Order that betook themselves to a strict Observance of St. Bennet’s Rule. It was first instituted by Rbert Abbot of Molesme, in a desert Place called Cistercium, in the Dutchy of Burgundy, Anno 1098.
Q. What were the Carthusians ?
A. An Order founded by a certain learned Man named Bruno, in a Desert Place, called Cartusia, in the Diocese of Grenoble in France, Anno 1080.
Q. What were the Praemonstratenses ?
A. An Order instituted by St. Norbert in a Place called Praemonstratum, in Picardy, according to the Rule of St. Augustine, Anno 1120. This Place was called Praemonstratum, because ( as it is said ) it was foreshewn or pre-monstrated to be the Head Seat and Mother Church of this Order by the Blessed Virgin, who also gave and appointed them their White Habit. This Order was introduced into England in King Stephen’s Time.
Q. What were the Gilbertins ?
A. An Order first instituted in England, Anno 1148. by Master John Gilbert of Sempringham in Lincolnshire.
Q. How many Kinds of Priors were there ?
A. There were two Sorts of Priors, Conventual and Claustral : The first are they who had no Abbots of their own, but were of the same Authority as Abbots, being chosen by the Convent, and the Chief Governors therein. Of this Sort were the Cathedral Priors, and most of those of the Order of St. Austin. The second were they who under the Abbot, and in his Absence, had the chief Care of the House and were removable at the Will of the Abbot.
Besides which, there was a third Sort termed Priors, namely, they who presided over Cells subordinate to some great Abby, and who were placed and displaced at the Pleasure of the Abbot Sovereign. Of this Number were the Priories Alien, which were Convents erected by Foreign Monasteries, in Places where they had Manors or Tithes bestowed on them in England, and by them stock’d with Monks out of their own Houses, who took Care of their Revenues, and were accountable to them.
Q. When first began the Dissolution of Religious Houses in England ?
A. The first Dissolution by King and Parliament was of the lesser Religious Houses, by a Statute 27 Hen. VIII. c. 28. whereby all and singular such Monasteries, Priories, &c. with every Thing to them appertaining, as were not above the clear yearly Value of Two hundred Pounds, were given to the King, to be had and enjoyed by Him, his Heirs and Assigns for ever ; in as large and ample Manner, as the Religious enjoy’d them. But ’tis to be observed, that before this Time Cardinal Wolsey by Licence of the King, and Pope Clement VII. had obtained a Dissolution of above thirty Religious Houses, ( most of them very small ) for the Foundation and Endowing of his Colleges at Oxford and Ipswich. So that the Pope himself had made a Precedent for the Dissolutions which followed.
Q. Were all the Religious Houses under the yearly Value of Two-hundred Pounds actually dissolv’d by Virtue of this Statute ?
A. No ; the King had a Right reserved to Him, of Continuing as many as he pleased of them by his Letters Patent ; and some of them were so continued, and not dissolv’d till the second Dissolution, which was of the larger Religious Houses, by a Statute 31 Hen. VIII. c. 13. whereby all that had not been voluntarily surrendred to Him before, as many of them had, were at once suppress’d and put into the King’s Hands with the Scites and Revenues of them ; with a particular Clause, that such of them as had been * discharged from Payment of Tithes, when in the Hands of the Religious, should be discharg’d in as full and ample Manner, when in the Hands of the King, or his Patentees of such Lands.
* By Reason of the Discharge from Tithes of Lands which were giwn to the King by this Act, and which were discharged in the Hands of the Religious ; it hath been more strictly enquired what were the Houses dissolved by this Act, than by any other of the Acts of Dissolution. And because they are of frequent Use in Suits concerning Tithes, they are added at large in the Appendix. Numb. 2.Q. Why was it necessary to insert such a Clause ?
A. Because, whereas before the Time of Dissolution the Religious were discharg’d from Payment of Tithes, by Bull, Order, or Composition, those Discharges, and also all Appropriations would have vanished and expired with the Spiritual Bodies whereunto they were annexed, if they had not been continued by this special Clause of Discharge ; ( as it happened to those which were dissolved 27 Hen. VIII. and 1 Edw. VI. for want of such Clause, neither of which, as hath been often declared, could be assisted in Point of Discharge by this Act. )
Q. With what Limitations did the Religious enjoy this Discharge ?
A. With this, That the Lands were in their own Occupation ; and consequently they can be no farther free in the Hands of the Patentees. It is therefore necessary for him who would take the Benefit of this Privilege, to aver, not barely that he is seized of the Land, but that it is in his own Hands and Manurance. But it is otherwise with regard to the King ; whose Farmers shall be discharged of such Tithes, as the Spiritual Persons were, because the King cannot excolere. And so long as the King hath the Freehold, his Farmers shall have such Privilege ; but if he, after having leased them, shall sell them, or shall grant over the Reversion, then the Farmers shall pay Tithes.
Q. What was the Number and Value of the Monasteries that were suppressed by King Hen. VIII ?
A. The Number of the Monasteries first and last suppressed, were Six-hundred and Forty-five, of which Twenty-eight were Mitred, or Parliamentary Abbies, whose Abbots sat in the House of Lords. The valued Rents of all the Abbey Lands were exceeding low ; but the real Worth and Value of them was judged at that Time, to amount to above Fifteen-hundred thousand Pounds per Annum.
Q. Were Hospitals given to the Crown at the Dissolution of Religious Houses ?
A. No Hospitals were given to the Crown by the Statute 27 Hen. VIII ; but in that of 31 Hen. VIII. they are particularly mentioned with Monasteries, Abbathies, Priories, &c. But it is said to have been resolved in the Case of the Lord Cheney, 24 Eliz. “That no Hospitals but only Religious and Ecclesiastical, are within this Statute.” And farther, “That if, upon the Foundation of “any Lay Hospital, or after, it was ordain’d, that one or more Priests should be maintain’d within the said Hospital to celebrate Divine Service to the Poor, and to pray for the Soul of the Founder, and all Christian Souls, or the like ; and that the Poor of such Hospitals should do the same ; yet such an Hospital was not within the said Statutes, for it is Lay and not Religious ; and all, or the greatest Part of ancient Lay Hospitals, were founded or ordained after the like Sort ; and the Makers of those Statutes never intended to overthrow Works of Charity, but only to take away the Abuse.” To this ’tis added, as a further Resolution in the same Case, “That no Hospital was given to the King by the Statute 37 Hen. VIII. but in two Cases, viz. Where the Donors, Founders, or Patrons, had entered and expell’d the Priests, Wardens, &c. or where King Henry VIII. by Commission, according to that Act, should enter and seize the same ; but that that was “determin’d by the Death of the said King.” And, finally it was resolved, “That the Statute 1 Edw. VI. extended not to any Hospital whatsoever, either Lay or Religious.” But ( notwithstanding this ) in the Case of Pitts and James, 12 Jac. I. it was resolv’d that an Hospital founded for certain poor Persons, to serve God and to pray for the Souls of the King and the Founder, with their Progenitors, Ancestors, and Heirs, was a Superstitious Foundation, and, as such, given to the King by the Design and Intention of the Statute 1 Edw. VI. tho’ Hospitals are not particularly mentioned in that Statute.
Q. What other Acts of Dissolution were there betides the forementioned Acts. 27 Hen. VIII c. 28. and 31 Hen. VIII. c. 13. for the Dissolution of Monasteries and Abbies ?
A. An Act passed 37 Hen. VIII. c. 4. for Dissolution of Colleges, Free Chapels, Chantries, Hospitals, Fraternities, Gilds, and Stipendiary Priests. Also another * 1 Edw. VI. c. 14. for the Dissolution of such as were not seized before. The Design of which Acts was to take away Superstitious Uses, and Promises were given, that the Revenues should be applied to better Purposes, as Schools, Hospitals, &c. but little of this was performed.
* ’Tis observed by Bishop Burnet upon the last of these Statutes, that the Entry in the Journal of the House of Peers, is, that the Bill was communi omnium Procerum assensu Conclusa, except’ Archiep. Cant. Episcopis London’ Norwicen’ Hereford Wigorn’ Cicestren’ Dunelmen’ Elien’. Where the Dissent of the Popish Bishops is easily accounted for, viz. because they desired that the Foundations might be continued as they then stood. But Archbishop Cranmer in his Dissent, acted upon a very different Motive, viz. the Hopes he had, that if these could be saved out of Lay Hands till the King was of Age, he might be persuaded to convert them to the bettering of the Condition of the poor Parochial Clergy, who were now disappointed of all Hopes of being better’d by other Means, when they saw the Impropriations convey’d apace into Lay Hands.Q. To what Uses were the Lands of the dissolv’d Monasteries applied by King Henry the VIIIth ?
Appendix.
Numb. VII.
His Grace the Archbishop of Canterbury’s Letter to the Right Reverend the Lords Bishops of His Province.
Westminster June 5, 1716.
My very good Lord,
Being by the Providence of God called to the Metropolitical See of this Province, I thought it Incumbent upon Me to consult as many of my Brethren the Bishops of the same Province, as were here met together during this Sessions of Parliament, in what manner We might best employ that Authority which the Ecclesiastical Laws now in Force, and the Custom and Laws of this Realm, have vested in Us, for the Honour of God, and for the Edification of His Church, committed to Our Charge : And upon serious Consideration of this Matter, We All of Us agreed in the same Opinion, that We should, by the Blessing of God upon our Honest Endeavours, in some measure promote those good Ends, by taking Care ( as much as in us lieth ) that no Unworthy Persons might hereafter be admitted into the Sacred Ministry of the Church ; Nor any be allowed to serve as Curates, but such as should appear to be duly qualified for such an Employ ; And that all who Officiated in the Room of any Absent Ministers, should reside upon the Cures which they undertook to supply ; and be ascertain’d of a suitable Recompence for their Labours.
In pursuance of those Resolutions, to which We unanimously agreed, I do now very earnestly, Recommend to You ;
I.
That you require of every Person who desires to be admitted to Holy Orders, that he signify to you his Name and Place of Abode, and transmit to you his Testimonial, and a Certificate of his Age duly attested, with the Title upon which he is to be Ordained, at least Twenty Days before the Time of Ordination ; and that he appear on Wednesday, or at farthest on Thursday in Ember Week, in order to his Examination.
II. That if you shall reject any Person, who applies for Holy Orders, upon the Account of Immorality proved against him, you signify the Name of the Person so rejected, with the Reason of your rejecting him, to Me, within one Month ; that so I may acquaint the rest of my Suffragans with the Case of such rejected Person before the next Ordination.
III. That you admit not any Person to Holy Orders, who having resided any considerable Time out of the University, does not send to you, with his Testimonial, a Certificate signed by the Minister, and other credible Inhabitants of the Parish, where he so resided, expressing that Notice was given in the Church, in Time of Divine Service, on some Sunday, at least a Month before the Day of Ordination, of his Intention to offer himself to be Ordained at such a Time ; to the End that any Person who knows any Impediment, or Notable Crime, for which he ought not to be Ordained, may have Opportunity to make his Objections against him.
IV. That you admit not Letters Testimonial, on any Occasion whatsoever, unless it be therein expressed, for what particular End, and Design, such Letters are granted ; nor unless it be declared by those who fall sign them, that they have personally known the Life and Behaviour of the Person for the Time by them Certified ; and do believe in their Conscience, that he is qualified for that Order, Office or Employment, to which he desires to be admitted.
V. That in all Testimonials sent from any College or Hall, in either of the Universities, you expect that they be sign’d, as well as seal’d ; and that among the Persons signing, the Governor of such College, or Hall, or in his Absence, the next Person under such Governor, with the Dean, or Reader of Divinity, and the Tutor of the Person to whom the Testimonial is granted, ( such Tutor being in the College, and such Person being under the Degree of Master of Arts, ) do subscribe their Names.
VI. That you admit not any Person to Holy Orders upon Letters Dimissory, unless they are granted by the Bihop himself, or Guardian of the Spiritualties Sede vacante, nor unless it be expressed in such Letters, that he who grants them, has fully satisfied himself of the Title and Conversation of the Person to whom the Letter is granted.
VII. That you make diligent Enquiry concerning Curates in your Diocese, and proceed to Ecclesiastical Censures against those who shall presume to serve Cures without being first duly Licensed thereunto ; as also against all such Incumbents who shall receive and employ them, without first obtaining such Licence.
VIII. That you do not by any Means admit of any Minister, who removes from any other Diocese, to serve as a Curate in yours, without Testimony of the Bishop of that Diocese, or Ordinary of the peculiar Jurisdiction from whence he comes, in Writing, of his Honesty, Ability, and Conformity to the Ecclesiastical Laws of the Church of England.
IX. That you do not allow any Minister to serve more than one Church or Chapel in one Day, except that Chapel be a Member of the Parish Church, or united thereunto ; and unless the said Church or Chapel, where such a Minister shall serve in two Places, be not able in your Judgment to maintain a Curate.
X. That in the Instrument of License granted to any Curate, you appoint him a sufficient Salary, according to the Power vested in you by the Laws of the Church, and the particular Direction of a late Act of Parliament for the better Maintenance of Curates.
XI. That in Licenses to be granted to Persons to serve any Cure, you cause to be inserted, after the Mention of the particular Cure provided for by such Licenses, a Clause to this Effect, or in any other Parish within the Diocese, to which such Curate shall remove with the Consent of the Bishop.
XII. That you take care, as much as is possible, that whosoever is admitted to serve any Cure, do reside in the Parish where he is to serve ; especially in Livings that are able to support a Resident Curate : And where that cannot be done, that they do at least Reside so near to the Place, that they may conveniently perform all their Duties both in the Church and Parish.
These, My Lord, were the Orders and Resolutions, to which We All agreed ; and which I do hereby transmit to You ; desiring you to Communicate them to the Clergy of your Diocese, with an Assurance that you are Resolved, by the Grace of God, to direct your Practice, in these Particulars, agreeably thereunto. And to commending you to the Blessing of God in these, and all Your other pious Endeavours, for the Service of his Church, I heartily remain,
My very Good Lord,
Your truly affectionate Brother,