Abridgment of Ecclesiastical Laws, Treatise · Chapter 9

Abridgment of Ecclesiastical Laws · Treatise · Chapter 9

p. 94CHAP. XI.

Of Courts Eccleſiaſtical, and their Juriſdiction.

1. The Antiquity of the Eccleſiaſtical Laws of England; and what the Chief Eccleſiaſtical Courts are in general, anciently called Halimots; The Original of the Popes Ʋſurpation in England.

2. The Court of Convocation; and Conſtitutions of Claringdon.

3. The High Court of Arches, why ſo called; the higheſt Conſiſtory; the Juriſdiction thereof.

4. The Judge of this Court, whence called Dean of the Arches.

5. The great Antiquity of this Court; the Number of Advocates and Proctors thereof Anciently limited; their decent Order in Court.

6. The Prerogative Court of Canterbury.

7. The Court of Audience, to whom it belonged, where kept, and what matters it took cognizance of.

8. The Court of Faculties, why ſo called, what things properly belong to this Court; As Diſpenſations, Licenſes, &c. with the Original thereof in England.

9 What the nature of a Diſpenſation is, and who qualified to grant it.

10. A Dean made Biſhop, the King may diſpence with him to hold the Deanary with the Biſhoprick by way of Commendam.

11. Whether a Prohibition lies to the Eccleſiaſtical Courts, in caſe they do not allow of Proof by one Witneſs.

12. Divers Caſes at the Common Law relating to Prohibitions to the Eccleſiaſtical Courts.

13. The Court of Delegates.

14. The High Commiſſion Court; what the Power thereof was.

15. The Court of Review, or Ad Revidendum.

16. The Court of Peculiars.

17. In what Caſes the Eccleſiaſtical Court ſhall have Juriſdiction of matters Subſequent, having Juriſdiction of the Original Suit.

p. 9518. In what Caſe, the party having allowed of the Juriſdiction, comes too late to have a Prohibition.

19. The difference between a Suit Ad inſtantiam partis, and that ex Officio Judicis, in reference to a General Pardon.

20. Whether a Cle…k may ſtrike his Servant, or another in that caſe the Clerk and be blameleſs?

21. What manner of Avoidance ſhall be tried at the Common Law, and what in the Eccleſiaſtical Court.

22. In what Caſe a ſpecial Prohibition was awarded in a Suit of Tithes after a Definitive Sentence.

23. A Prohibition to the Eccleſiaſtical Court in a Suit grounded on a Cuſtome againſt Law.

24. Prohibition awarded to the Eccleſiaſtical Court, upon refuſal there to give a Copy of the Libel.

25. Where the Eccleſiaſtical Court hath cognizance of the Principal, they have alſo of the Acceſſory, though the Acceſſory of matters Temporal.

26. A Prohibition denied, upon a Suggeſtion, That the Eccleſiaſtical Court would not admit of proof by one Witneſs.

27. In what caſe the Eccleſiaſtical Court ſhall have the Cognizance, albeit the bounds of a Village in a Pariſh come in queſtion.

28. How the Practice hath been touching Prohibitions, where the Subject matter in queſtion hath been of a Mixt nature in reference to Juriſdictions.

29. Certain Reaſons for denial of Prohibitions to the Eccleſiaſtical Court, in ſome Caſes, where they might lie.

30. Bounds of Pariſhes, in reference to the Tithes thereof, whether Tryable by the Law of the Land, or by the Law of the Church.

31. Where the Queſtion is, more touching the Right of Tithes, than the Bounds of the Pariſh, the Eccleſiaſtical Court hath had the cognizance.

32. The Eccleſiaſtical Court hath cognizance of Adminiſtrators Accounts, and no Prohibition lies.

33. Modus Decimandi ſued for by a Parſon in the Ecclleſiaſtical Court, no Prohibition; Nor if he there ſues for the Tithe of things not Titheable.

34. In what caſes a Cuſtome, as alſo a Rent, may be ſued for in the Eccleſiaſtical Court.

35. If Queſtion be touching the Grant of a Regiſters Office in a Biſhop's Court, or touching the Tenth after ſeverance from the Nine parts; In what Court, whether Temporal or Eccleſiaſtical, it ſhall be tryed.

p. 9636. A Woman exerciſing the Profeſſion of a Midwife without Licenſe, is therefore ſued in the Eccleſiaſtical Court; whether a Prohibition lies in that caſe.

37. The Bounds of a Pariſh, alſo whether ſuch a Church be Parochial or only a Chappel of Eaſe; In what Court this is to be tryed.

38. A Prohibition granted, upon the diſallowance of an Executors Plea, of having Aſſets only to pay Debts, in oppoſition to a Legacy ſued for in the Eccleſiaſtical Court.

39. A Prohibition awarded upon a Suit in the Eccleſiaſtical Court for an account of the Profits of a Benefice; Otherwiſe in caſe the Profits were taken during the time of a Sequeſtration.

40. A Prohibition granted to a Party to ſtay proceedings in his own Suit, and commenced by himſelf.

41. Penſions are ſueable only in the Eccleſiaſtical Court.

42. The right of Tithes coming in queſtion between the Parſon and the Vicar, is a Suit properly belonging to the Eccleſiaſtical Court.

43. Whether, and how far, and in what manner the Eccleſiaſtical Court may take cognizance of a Modus Decimandi, at large debated.

44. When and how the Canon Law was introduced into this Realm.

(1.) BEfore the time of King William the Conqueror all matters, as well Spiritual as Temporal, were determined in the Hundred-Courts, where was wont to ſit one Biſhop and one Temporal Judge called Aldermanus; the one for matters of Spiritual, the other of Temporal cognizance: But that was altered by King William (and it ſeems by Parliament, for it was by the aſſent of the Biſhops, Abbots, and all the chief perſons of the Realm) for he Ordained, That the Biſhop or Archdeacon ſhould not hold Plea of the Epiſcopal Laws, & quae ad Regimen animarum pertinent, in the Hundred; but by themſelves, and there adminiſter Juſtice, not according to the Law of the Hundred, but according to the Epiſcopal Laws and Canons, as appears by King William's Charter.Roll's Abridg. verb. Prerogative, lit. L. Irrot. 2. R. 2. pro Decano & Capitulo Eccleſ. Lincolne, Jan. Angl. 76, 77. The Principal Courts Eccleſiaſtical (whereof ſome are now out of uſe) were, and are the Convocation Court, the High Commiſſion Court, the high Court of Arches, the Prerogative Court of Canterbury, the Court of Delegates, the Court of Audience, the Court of Peculiars, the Court of Faculties, beſides the Biſhops Conſiſtories, the Archdeacons Courts, and the like, anciently p. 97called Halimots, or holy Courts. And the Saxon Kings, long before William the Conqueror, made ſeveral Laws for the Government of the Church: Among others St. Edward begins his Laws with this Proteſtation,In the Caſe of Praemunire. Davis Rep. that it is his Princely charge, Ʋt Populum Domini, & ſuper omnia Sanctam Eccleſiam, regat & gubernet. And King Edgar, in his Oration to his Engliſh Clergy, Ego (ſaith he) Conſtantini, vos Petri gladium habetis: jungamus dextras, & gladium gladio Copulemus, ut ejiciantur extra caſtra Leproſi, & purgetur Sanctuarium Domini. But upon the Conqueſt made by the Normans the Pope took the opportunity to uſurp upon the Liberties of the Crown of England; for the Conqueror came in with the Popes Banner, and under it won the Battel. Whereupon the Pope ſent two Legates into England, with whom the Conqueror called a Synod, depoſed Stigand Archbiſhop of Canterbury, becauſe he had not purchaſed his Pall in the Court of Rome, and diſplaced many Biſhops and Abbots to make room for his Normans. Among the reſt the King having earneſtly moved Wolſtan Biſhop of Worceſter, being then very aged, to give up his Staff, was Anſwered by him, That he would give up his Staff only to him of whom he firſt received the ſame: And ſo the old Biſhop went to St. Edward's Tomb, and there offered up his Staff and Ring with theſe words, viz. Of Thee, O holy Edward, I received my Staff and my Ring, and to thee I do now ſurrender the ſame again. Which proves, that before the Norman Conqueſt the Kings of England inveſted their Biſhops per Annulum & Baculum. By this admiſſion of the Pope's Legates, was the firſt ſtep or entry made into his uſurped Juriſdiction in England; yet no Decrees paſſed or were put in execution touching matters Eccleſiaſtical without the King's Royal Aſſent; nor would he ſubmit himſelf in point of Fealty to the Pope, as appears by his Epiſtle to Gregory the Seventh, Vid. Da. Rep. Caſe of Praemunire, fo. 89. yet in his next Succeſſors time, in the time of William Rufus, the Pope by Anſelme Archbiſhop of Canterbury attempted to draw Appeals to Rome, but prevailed not. Upon this occaſion it was, that the King told Anſelme, That none of his Biſhops ought to be ſubject to the Pope, but that the Pope himſelf ought to be ſubject to the Emperour, and that the King of England had the ſame abſolute Liberties in his Dominions as the Emperour had in the Empire. Yet in the time of the next King H. 1. the Pope uſurped the Patronage and Donation of Biſhopricks, and all other Benefices Eccleſiaſtical; at which time Anſelme told the King, That the Patronage and Inveſture of Biſhopricks was not his Right, Hiſt. For…alenſis M. S. in Archiv. Rob. Cotton Eq. Aur.becauſe Pope Urban had lately made a Decree, That no Lay-perſon ſhould give any Eccleſiaſtical Benefice. And after this in a Synod held at London, An. 1107. a Decree was made, Cui annuit Rex Henricus (ſays Matth. Pariſ.) that from p. 98thenceforth, Nunquam per donationem Baculi Paſtoralis vel Annuli quiſquam de Epiſcopatu vel Abbathia per Regem, vel quamlibet Laicam manum, inveſtiretur in Anglia. Hereupon the Pope granted, That the Archbiſhop of Canterbury for the time being ſhould be for ever Legatus Natus: And Anſelme, for the honour of his See, obtained, That the Archbiſhop of Canterbury ſhould in all general Councils ſit at the Pope's foot, tanquam alterius Orbis Papa. Yet after Anſelme's death, this ſame King gave the Archbiſhoprick of Canterbury to Rodolph Biſhop of London (ſays Matth. Pariſ.) Et illum per Annulum & Paſtoralem Baculum inveſtivit, as before he had inveſted William Gifford in the Biſhoprick of Wincheſter, contra novi Concilii ſtatuta, as the ſame Author reporteth; And this, becauſe ſucceeding Popes had broken Pope Ʋrban's promiſe, Touching the not ſending of Legates into England; unleſs the King ſhould require it. And in the time of the next ſucceeding King, Stephen; the Pope gained Appeals to the Court of Rome; For in a Synod at London Conven'd by Hen. Biſhop of Wincheſter, the Pope's Legate, it was Decreed, That Appeals ſhould be made from Provincial Councils to the Pope. Before which time, Appellationes in uſu non erant (ſaith a Monk of that time) donec Henricus Winton. Epiſcopus malo ſuo, dum Legatus eſſet, crudeliter intruſit. Thus did the Pope uſurp Three main points of Juriſdiction upon Three ſeveral Kings after the Conqueſt (for of King William Rufus he could win nothing,) viz. upon the Conquerour, the ſending of Legates or Commiſſioners to hear and determine Eccleſiaſtical Cauſes: Upon Hen. 1. the Donation and Inveſtures of Biſhopricks and other Benefices: and upon King Stephen, the Appeals to the Court of Rome. And in the time of King H. 2. the Pope claimed exemption of Clerks from the Secular Power.

(2.) The high Court of Convocation is called the Convocation of the Clergy, and is the higheſt Court Eccleſiaſtical, where the whole Clergy of both Provinces are either preſent in Perſon, or by their Repreſentatives. They commonly meet and ſit in Parliament-time; conſiſting of Two parts, viz. the Upper-houſe, where the Archbiſhops and Biſhops do ſit; and the Lower-houſe, where the Inferiour Clergy do ſit.Convocation a Convocando by the King's Writ. This Court hath the Legiſlative power of making Eccleſiaſtical Laws, is commonly called a National Synod, Conven'd by the King's Writ, directed to the Archbiſhop of each Province, for ſummoning all Biſhops, Deans, Archdeacons, Cathedrals, and Collegiate Churches, aſſigning them the time and place in the ſaid Writ; But one Proctor ſent for each Cathedral and Collegiate Church, and two for the Body of the inferiour Clergy of each Dioceſs may ſuffice. The higher Houſe of Convocation, or the Houſe of Lords Spiritual, for the Province of Canterbury p. 99conſiſts of 22 Biſhops, whereof the Archbiſhop is Preſident; the Lower-houſe, or Houſe of Commons Spiritual, conſiſting of all the Deans, Archdeacons, one Proctor for every Chapter, and two for the Clergy of each Dioceſs, in all 166 perſons, viz. 22 Deans, 24 Prebendaries, 54 Archdeacons, and 44 Clerks repreſenting the Dioceſan Clergy. Both Houſes debate and tranſact only ſuch matters as his Majeſty by Commiſſion alloweth, concerning Religion and the Church.8 H. 6. cap. 1… All the Members of both Houſes of Convocation have the ſame priviledges for themſelves and Menial Servants, as the Members of Parliament have. The Archbiſhop of York at the ſame time, and in the like manner, holds a Convocation of all his Province at York, conſtantly correſponding, debating and concluding the ſame matters with the Provincial Synod of Canterbury. The Antiquity of this Court of Convocation is very great, for (according to Beda) St. Auguſtine, An. 686. aſſembled in Council the Britain Biſhops, and held a great Synod. The Clergy was never aſſembled or called together at a Convocation by other Authority,Coke, par. 4. Inſt. cap. 74. than by the King's Writ. Vid. Parl. 18 E. 3. nu. 1. Inter Leges Inae, An. Dom. 727. A Convocation of the Clergy called, Magna ſervorum Dei frequentia. The Juriſdiction of the Convocation is only touching matters meerly Spiritual and Eccleſiaſtical, wherein they proceed juxta Legem Divinam & Canones Sanctae Eccleſiae. Ibid.The Lord Coke cites ſome Ancient Records to prove, that the Court of Convocation did not meddle with any thing concerning the Kings Temporal Laws of the Land, and thence inferrs, That the Statute of 25 H. 8. cap. 19. (whereby it is provided, That no Canons, Conſtitution, or Ordinance ſhould be made or put in execution within this Realm by Authority of the Convocation of the Clergy, which were contrariant or repugnant to the King's Prerogative Royal, or the Cuſtomes, Laws, and Statutes of this Realm) is but declaratory of the old Common Law. And by the ſaid Act, the Court of Convocation, as to the making of new Canons, is to have the King's Licenſe, as alſo his Royal Aſſent for the putting the ſame in execution. But towards the end of that Act there is an expreſs Proviſo, that ſuch Canons as were made before that Act, which be not contrariant nor repugnant to the King's Prerogative, the Laws, Statutes, or Cuſtomes of the Realm, ſhould be ſtill uſed and executed, as they were before the making of that Act. And if any Cauſe ſhall depend in contention in any Eccleſiaſtical Court, which ſhall or may touch the King, his Heirs or Succeſſors, the party grieved ſhall or may appeal to the Upper-houſe of Convocation within fifteen days after Sentence given. Remarkable are the Conſtitutions of Claringdon in the time of King H. 1 Eliz. cap. 1. Co. ubi ſupr.2. occaſioned by the Popes claiming Exemption of Clerks from p. 100the Secular power, ſo contended for by Thomas Becket, then Archbiſhop of Canterbury, againſt the King, as occaſioned a convening a Common Council, as well of the Biſhops as of the Nobility, at Claringdon in the time of H. 2. wherein they revived and reeſtabliſhed the Ancient Laws and Cuſtomes of the Kingdom for the Government of the Clergy, and ordering of Cauſes Eccleſiaſtical. The principal Heads or Articles whereof were theſe,In the Caſe of a Praemunire. Davis Rep. fo. 91. viz. (1) That no Biſhop or Clerk ſhould depart the Realm without the King's Licenſe; and that ſuch as obtained Licenſe, ſhould give Sureties, That they ſhould not procure any dammage to the King or Realm during their abſence in Foreign parts. (2) That all Biſhopricks and Abbies being void ſhould remain in the Kings hands as his own Demeſns, until he had choſen and appointed a Prelate thereunto; and that every ſuch Prelate ſhould do his Homage to the King before he be admitted to the place. (3) That Appeals ſhould be made in Cauſes Eccleſiaſtical in this manner, viz. From the Archdeacon to the Ordinary, from the Ordinary to the Metropolitan, from him to the King, and no farther. (4) That Peter-Pence ſhould be paid no more to the Pope, but to the King. (5) That if any Clerk ſhould commit Felony, he ſhould be hanged; if Treaſon, he ſhould be drawn and quartered. (6) That it ſhould be adjudged High Treaſon to bring in Bulls of Excommunication, whereby the Realm ſhould be curſed. (7) That no Decree ſhould be brought from the Pope to be executed in England, upon pain of Impriſonment and Confiſcation of Goods.

(3.) Arches,So called in Stat. 25 H. 8. c. 19. or alma Curia de Arcubus, ſo called of Bow-Church in London, by reaſon of the Steeple or Clochier thereof raiſed at the top with Stone-pillars in faſhion like a Bow-bent Arch-wiſe, in which Church this Court was ever wont to be held, being the chief and moſt Ancient Court and Conſiſtory of the Juriſdiction of the Archbiſhop of Canterbury; which Pariſh of Bow together with twelve others in London, whereof Bow is the chief, are within the Peculiar Juriſdiction of the ſaid Archbiſhop in Spiritual Cauſes, and exempted out of the Biſhop of London's Juriſdiction. The Judge of this Court of Arches is ſtyled the Dean of the Arches, or the Official of the Arches-Court, unto whoſe Deanary or Officialty to the Archbiſhop of Canterbury, in all matters and cauſes Spiritual, is annexed the Peculiar Juriſdiction of the thirteen Pariſhes, as aforeſaid; Having alſo all Ordinary Juriſdiction in Spiritual cauſes of the firſt Inſtance with power of Appeal, as the ſuperiour Eccleſiaſtical Conſiſtory, through the whole Province of Canterbury aaStat. 24 H. 8. c. 12.; yet the Lord Coke ſaysbbCo. Inſt. par. 4. §. Court of Arches., his power to call any perſon for any Cauſe out of any part of his Province within the Dioceſs of any other Biſhop (except it be upon Appeal) is reſtrained by the Stat. p. 101of 23 H. 23 H 8. cap. 9.8. c. 9. Yet his Juriſdiction is Ordinary, and extends it ſelf through the whole Province of Canterbury, inſomuch that upon any Appeal made to him from any Dioceſs within the ſaid Province, he may forthwith, without further examination (at that time) of the Cauſe, iſſue forth his Citation to be ſerved on the Appealee, with his Inhibition to the Judge à quo.

In Mich. Mich. 6 Jac. C. B. Porter and Rocheſters Caſe. Co. lib. 13. & ult.Mic 66 Jac. C. B. there was a Caſe between Porter and Rocheſter; The Caſe was this: Lewis and Rocheſter, who dwelt in Eſſex, in the Dioceſs of London, were ſued for ſubtraction of Tithes growing in B. in the ſaid County of Eſſex, by Porter, in the Court of Arches of the Archbiſhop of Canterbury in London: where the Archbiſhop hath a peculiar Juriſdiction of thirteen Pariſhes, called a Deanary, exempt from the Authority of the Biſhop of London, whereof the Pariſh of S. Mary de Arcubus is the chief. And a great Queſtion was moved, Whether in the ſaid Court of Arches holden in London, he might cite any dwelling in Eſſex, for ſubtraction of Tithes growing in Eſſex? or whether he be prohibited by the Statute of 23 H 8. c. 9? Which after debate at Bar by Council, and alſo by Dr. Ferrard, Dr. James, and others in open Court, and laſtly by all the Juſtices of the Common Pleas: A Prohibition was granted to the high Court of Arches. And, in this caſe, divers points were reſolved by the Court; (1) That all Acts of Parliament are parcel of the Laws of England, and therefore ſhall be expounded by the Judges of the Laws of England, and not by the Civilians and Canoniſts, although the Acts concern Eccleſiaſtical Juriſdiction. (2) Reſolved by Coke Chief Juſtice, Warburton, Daniel and Foſter, Juſtices, That the Archbiſhop of Canterbury is reſtrained by the 23 H. 8. cap. 9. to cite any one out of his own Dioceſs: For Diaeceſis dicitur diſtinctio, &c. quae diviſa vel diverſa eſt ab Eccleſia alterius Epiſcopatus, & Commiſſa gubernatio unius, &c. And is derived a Di, Duo, & Electio, quia ſeparat duas Juriſdictiones: And becauſe the Archbiſhop of Canterbury hath a peculiar Juriſdiction in London; for this cauſe it is fitly ſaid in the Title, Preamble, and body of the Act, that when the Archbiſhop ſitting in his Exempt peculiar in London, cites one dwelling in Eſſex, he cites him out of the Biſhop of London's Dioceſs; Therefore, out of the Dioceſs. And in the clauſe of the penalty of 10 l. it is ſaid, Out of the Dioceſs, &c. where the party dwelleth; which agrees with the ſignification of Dioceſs before. 2. The body of the Act is, No perſon ſhall be henceforth cited before any Ordinary, &c. out of the Dioceſs or peculiar Juriſdiction, where the perſon ſhall be dwelling; and if ſo, then à Fortiori, the Court of Arches, which ſits in a Peculiar, may not cite others out of another Dioceſs. And the words [out of the Dioceſs] are meant of the Dioceſs or Juriſdiction of the Ordinary where he p. 102dwelleth. And from the Preamble of the Act the Lord Coke obſerves and inferrs, That the intention of the Act was to reduce the Archbiſhop to his proper Dioceſs, unleſs in theſe five Caſes, viz. (1) For any Spiritual offence or cauſe committed, or omitted, contrary to Right and Duty by the Biſhop, &c. which word [omitted] proves there ought to be a default in the Ordinary. (2) Except it be in Caſe of Appeal, and other lawful cauſe, where the party ſhall find himſelf grieved by the Ordinary, after the matter there firſt begun; Therefore, it ought to be firſt begun before the Ordinary. (3) In caſe the Biſhop or Ordinary, &c. dare not, or will not Convent the party to be ſued before him. (4) In caſe the Biſhop or Judge of the place, within whoſe Juriſdiction, or before whom the Suit by this Act ſhould be begun and proſecuted, be party, directly or indirectly, to the matter or cauſe of the ſame Suit. (5) In caſe any Biſhop or other inferiour Judge under him, &c. make Requeſt to the Archbiſhop, Biſhop, or other inferiour Ordinary or Judge; and that to be done in Caſes only, where the Law Civil or Common doth affirm, &c. The Lord Coke takes notice alſo of Two Proviſoes in that Act, which do likewiſe explain it; viz. That it ſhall be lawful for every Archbiſhop, to cite any perſon inhabiting in any Biſhops Dioceſs in his Province for matter of Hereſie: By which (ſays he) it appears, That for all cauſes not excepted, he is prohibited by the Act. (2) There is a Saving for the Archbiſhop, calling any perſon out of the Dioceſs where he ſhall be dwelling, to the probat of any: Teſtament: Which Proviſo ſhould be vain, if notwithſtanding that Act he ſhould have concurrent Juriſdiction with every Ordinary throughout his whole Province: Wherefore it was concluded, That the Archbiſhop out of his Dioceſs, unleſs in the Caſes excepted, is prohibited by the 23 H. 8. c 9. to cite any man out of any other Dioceſs: which Act is but a Law declaratory of the Ancient Canons, and a true Expoſition thereof, as appears by the Canon, Cap. Romana in Sext. de Appellat. & c. de Competenti. in Sext. And (as the Lord Coke obſerves) the Act is ſo expounded by all the Clergy of England, at a Convocation at London, An. 1 Jac. 1603. Can. 94. who gives us further to underſtand in this Caſe between Porter and Rocheſter, That the Archbiſhop of this Realm, before that Act, had power Legantine from the Pope; By which they had Authority not only over all, but concurrent Authority with every Ordinary, &c. not as Archbiſhop of Canterbury, &c. but by his Power and Authority Legantine. Et tria ſunt genera Legatorum, Caſe Porter and Rocheſter. Co. … ſupr.(1) Quidam de Latere Dom. Papae mittuntur, &c. (2) Dativi, qui ſimpliciter in Legatione mittuntur, &c. (3) Nati ſeu Nativi, qui ſuarum Eccleſiarum praetextu Legatione funguntur, & ſunt Quatuor, viz. Archiepiſcopus Cantuarienſis, Eboracenſis, p. 103Remanenſis, & Piſanis: Which Authority Legantine is now taken away and utterly aboliſhed.

(4.) It is ſuppoſed, that the Judge of this Court was originally ſtyled the Dean of the Arches, by reaſon of his ſubſtitution to the Archbiſhop's Official, when he was employed abroad in Foreign Embaſſies, whereby both theſe Names or ſtyles became at laſt in common underſtanding, as it were, Synonym…us ccCowel. Interpr. verb. Arches.. For the Official of this Court, and the Dean of the Arches by ſuch Subſtitution had both the ſame Juridical Authority, though with diſtinct ſtyles in ſeveral perſons, as appears by that which comes next to the Preface to the Ancient Statutes of that Court, ordained by Robert Winchelſey Archbiſhop of Canterbury ddTemp. Ed. 1. An. 1295., in that Stat. touching the Form of the Judges Oath, where the words are, tam Officalis dictae Curiae, quam Decanus de Arcubus, ſuus Commiſſarius Generalis, &c. For he that was the Archbiſhops Official in this Court was heretofore obliged to Conſtitute the Dean of the Arches as his Commiſſary General in his abſence; as alſo appears by another of thoſe Statutes or Conſtitutions of that Court, Ordained by John Whitgift Archbiſhop of Canterbury eeAn. 3 Eliz. 1583., the Title of which Statute is, De Decano Eccleſiae Beatae Mariae de Arcubus Lond. wherein we find, viz. Statuimus quod Officialis dictae Curiae teneatur Decanum Eccleſiae ſuum Conſtituere in ipſius abſentia Commiſſarium. Alſo by the Statutes and Conſtitutions of this Court made by Matthew Parker Archbiſhop of Canterbury ffEdit. Lambeth. 6 Maii Ap. 573. & Conſecra. 14., it is expreſly Ordained, That neither the Dean or Official of the Court of Arches, nor the Auditor of matters and Cauſes in the Court of Audience of Cant. nor the Judge of the Prerogative Court, ſhall exerciſe the Function or Profeſſion of an Advocate in any Court belonging to the Juriſdiction of the ſaid Archbiſhop, on pain of Excommunication and SuſpenſionggVid. dict. Stat. M. S.. In this Court of the Arches the Proctors thereof do wear ſuch Hoods, as Bachelors of Arts uſe to wear in the Vniverſities; which Habit or Formality was firſt enjoyned by Henry Chichley Archbiſhop of Canterbury, in the year 1435.hhAntiq. Brit. 6 H. 6. An. 1435.. The ſtyle of this Court is, Alma Curia Cant. de Arcubus Lond. And the Appeal from it doth lie to the King in Chancery ii25 H. 8. 19..

(5.) This Court of the Arches anciently holden in Bow-Church of London, is of very great Antiquity; the Lord Coke in the forecited place lets us to underſtand, that he meets with it in a very Ancient Record of a ProhibitionkkHill 7 E. 1. coram Rege. Rot. 8. Paſch. 12 E. 1. in Banco. Eſſex. Guliel. de Mo…us ma…i Clericus, &c. Vid. Dyer. 7 Eliz. 241., In Curia Chriſtianitatis cotam Decano de Arcubus London. The Statutes and Ordinances of which Court are very Ancient, and to which Thoſe ordained by Robert Winchelſey Archbiſhop of Canterbury, above 380 years ſince, do referr: Robertus Winchelſe Archiepiſcopus Cantuarienſis deſcripſit Judicibus, Advocatis, Procuratoribus, aliiſque miniſtris Almae p. 104ſuae Curiae de Arcubus jura quaedam & Statuta, Ant. Brit. fo. 201.quae ipſe in Templo Arcuato ſedens pro Tribunali legit atque obligavit. Quinto Idus Novemb. Anno 1295. William de Sardinia being then his Official, and Henry de Naſſington Dean of the Arches, the ſaid Officials Commiſſary General; By which Statutes it was Ordained, That the Advocates belonging to the ſaid Conſiſtory, ſhould not exceed the number of Sixteen; nor the Proctors above the number of Ten; nor ſhould any of them, without the ſpecial Licenſe of the Preſident of that Conſiſtory, abſent themſelves thence, by any attendance on any other Conſiſtory, at ſuch times wherein Cauſes were to be heard in the ArchesllM. S. Stat. Cur de Arcub. §. de numero Advocat. & in final. Concluſ. Statut.; And for the diſpatch of the Cauſes of poor and indigent perſons, the Judge may by the ſaid Statutes aſſign them Advocates and Proctors to proſecute for them Gratis & Charitative, and that nothing be paid for the Proceſs, Acts of Court, Examinations, Sentence, or other Court-Fees in ſuch Caſes mmDict. Stat. §. Item Procuratores. Vid. Provinc. Conſt. Lindw. De Offic. Jud. Ord. cap. S…atuimus▪ gloſſ. verb. Ad Pauperes.. In which Court the Senior Advocates by the ſame Statutes are to take their places oppoſite to the Judge, the others on each ſide of him, nigher to, or remoter from him according to their Seniority; the like Order in Court to be obſerved alſo by the Proctors. And ſuch was the devotion of thoſe days in that Conſiſtory, That in order to an imploring of the Divine aſſiſtance on their proceedings in Judgment, it was further Ordained, That Divine Service ſhould be celebrated in Bow-Church immediately before the firſt, and after the laſt Ceſſion of every Term, the Judge, Advocates, Proctors, and other Officers of the Court to be preſent thereat.

(6.) The Prerogative Court of the Archbiſhop of Canterbury is that Court, wherein all Teſtaments are proved, and Adminiſtrations granted of the Goods and Chattels of ſuch perſons, as dying within his Province, had at the time of their death Bona Notabilia in ſome other Dioceſs, than that wherein they dyed; which Bona Notabilia regularly muſt amount to the value of Five pounds, ſave in the Dioceſs of London, where it is Ten pounds by Compoſition. The Probat of every Biſhops Teſtament,Co. Inſt. par. 4. cap. 74. and the granting of the Adminiſtration of his Goods and Chattels, albeit he hath not Goods but within his own Juriſdiction, doth belong to the Archbiſhop. The like Court hath the Archbiſhop of York. From this Court lies the Appeal to the King in Chancery. If one make two Executors, one of ſeventeen years of Age,Pigot and Gaſcoin's Caſe. Brownl. Rep. par. 1. Caſes in Law, &c. and the other under, Adminiſtration during the Minority is void, becauſe he of ſeventeen years old may execute the Will, if Adminiſtration during the Minority in ſuch caſe be granted; And if the Adminiſtrator brings his Action, the Executor may well releaſe the Debt. One was cited to appear in the Prerogative Court of Canterbury, which lived out of the Dioceſs of Canterbury, and p. 105upon that he prayed Prohibition upon the Statute of 23 H. Stat. 23 H. 8. cap. 9.8. c. 9. which willeth, that none ſhall be cited to appear out of his Dioceſs, without aſſent of the Biſhop, and Prohibition was granted: And yet it was ſaid, that in the time of H. 8. and Q. Ma. that the Archbiſhop of Canterbury had uſed to cite any man dwelling out of his Dioceſs, and within any Dioceſs within his Province, to appear before him in the Prerogative-Court, and this without the aſſent of the Ordinary of the Dioceſs: But it was Reſolved by the Court, that this was by force of the power Legatine of the Archbiſhop, that (as Lindwood ſaith) ought to be expreſſed in the Prohibition,Trin. 8 Jac. Brown l. p. 2. for the Archbiſhop of Canterbury, York, Piſa, and Reymes, were Legati nati, and others but Legati à latere. The Lord Coke, in his Inſtitutes, par. 3. cap. 69. gives us the Reſolutions upon the Statute of 21 H. 8. cap. 5. That if a man makes his Teſtament in paper, and dieth poſſeſſed of Goods and Chattels above the value of 40 l. and the Executor cauſeth the Teſtament to be tranſcribed in parchment, and bringeth both to the Ordinary, &c. to be proved; It is at the Election of the Ordinary, whether he will put the Seal and Probat to the Original in paper, or the Tranſcript in parchment, but whether he put them to the one or to the other, there can be taken of the Executor, &c. in the whole but 5 s. and not above; viz. 2 s. 6 d. to the Ordinary, &c. and his Miniſters, and 2 s. 6 d. to the Scribe for Regiſtring the ſame: or elſe the ſaid Scribe to be at his liberty, to refuſe the ſaid 2 s. 6 d. and to have for writing every ten Lines of the ſame Teſtament, whereof every Line to contain ten inches, one penny. If the Executor deſire that the Teſtament in paper may be tranſcribed in parchment, he muſt agree with the party for the Tranſcribing; but the Ordinary, &c. can take nothing for that, nor for the Examination of the Tranſcript with the Original, but only 2 s. 6 d. for the whole duty belonging to him. Where the Goods of the deceaſed do not exceed five pound, the Ordinary, &c. ſhall take nothing, and the Scribe to have only for writing of the Probat ſix pence: ſo the ſaid Teſtament be exhibited in writing, with Wax thereunto affixed ready to be ſealed. Where the Goods of the deceaſed do amount to above the value of five pound, and do not exceed the ſum of forty pound, there ſhall be taken for the whole but 3 s. 6 d. whereof to the Ordinary, &c. 2 s. 6 d. and 12 d. to the Scribe for Regiſtring the ſame. Where by Cuſtome leſs hath been taken in any of the Caſes aforeſaid, there leſs is to be taken. And where any perſon requires a Copy or Copies of the Teſtament ſo proved, or Inventory ſo made, the Ordinary, &c. ſhall take for the Search, and making of the Copy of the Teſtament or Inventory (if the Goods exceed not five pound) ſix pence; and (if the Goods exceed five pound, and exceed not p. 106forty pounds) twelve pence. And if the Goods exceed forty pounds, then two ſhillings ſix pence, or to take for every Ten lines thereof of the proportion before rehearſed, a penny. And when the party dies Inteſtate,Mich. 20 Jac. in Cam. Stellat. Sr. Jo. Bennet's Caſe. Co. Inſt. par. 3. cap. 69. the Ordinary may diſpoſe ſomewhat in pious uſes, notwithſtanding the Act of 31 Ed. 3. but with theſe Cautions: (1) That it be after the Adminiſtration granted, and Inventory made, ſo as the ſtate of the Inteſtate may be known, and thereby the ſum may appear to be competent. (2) The Adminiſtrator muſt be called to it. (3) The uſe muſt be publick and godly. (4) It muſt be expreſſed in particular. And (5) There muſt be a Decree made of it, and entred of Record.

(7.) The Court of Audience, Curia Audientiae Cantuarienſis. The Lord Coke touching the Juriſdiction of Courts, taking notice of this of the Audience among other of the Eccleſiaſtical Courts nnCo. Inſt. 4. par. cap. 74., ſays, That this Court is kept by the Archbiſhop in his Palace, and meddleth not with any matter between party and party of any contentious Juriſdiction, but dealeth with matters pro forma, and Confirmations of Biſhops Elections, Conſecrations, and the like, and with matters of voluntary Juriſdiction, as the granting of the Guardianſhip of the Spiritualties Sede vacante of Biſhops, Admiſſions and Inſtitutions to Benefices, diſpenſing with Banns of Matrimony, and ſuch like. This Court did belong to the Archbiſhop of Canterbury, and was in point of Authority equal with, but in point of Dignity and Antiquity inferiour to the Court of Arches. It ſeems that Anciently the Archbiſhop of Canterbury did hear divers Cauſes of Eccleſiaſtical cognizance Extra-judicially, and at home in his own Palace, wherein, before he would come to any final determination, his uſage was to commit the diſcuſſion thereof to certain perſons learned in the Laws Civil and Canon, who thereupon were ſtyled his Auditors, whence in proceſs of time it center'd in one particular perſon ſtyled, Cauſarum Negotiorumque Audientiae Cantuarienſis Auditor ſeu Officialis: And from hence the Original of this Court is properly derived. With this office of the Auditor the Chancery of the Archbiſhop is ſaid to have been heretofore commonly joyned, not controverting any matters of contentious Juriſdiction in any deciſions of Cauſes between Plaintiff and Defendant,Vid. Hiſt. de Antiq. Eccleſ. Britan. but ſuch only as were Voluntariae Juriſdictionis & ex Officio, touching ſuch things only as are fore-ſpecified, and ſuch like. By the Provincial Conſtitutions it is Ordained, That for the eaſe of the People they may at times convenient (to be aſſigned by the Biſhop) have acceſs to their Dioceſan, Et quod Praelati perſ…. liter Audiant quaerelas in his Cathedral, or next Parochial Church, vel in aliqua Maneriorum ſuorum Capella, ſi talis fuerit. Lindw. de Offic. Jud. Ord. cap. Statuimus. in gloſſ. verb. in Publico. It ſeems p. 107not altogether improbable, but that from the practice hereof this Court of Audience anciently had its Original, as aforeſaid; And although it be not now in uſe as heretofore, yet conſidering the Subject-matter it only took cognizance of, it was a good Expedient to prevent many Suits at Law in Foro Contentioſo.

(8.) Faculty [or, Court of Faculties] in the ſenſe here meant and intended, muſt not be underſtood according to its original and genuine ſignification, but as a term of Art according to a limited conſtruction, reſtrained under that peculiar notion and particular underſtanding which the Law hath of it, in reference to a branch of the Eccleſiaſtical Juriſdiction: And ſo it is underſtood and commonly uſed for that Priviledge or eſpecial Power, which is legally granted to a man by Licenſe, favour, indulgence, and diſpenſation to have or do that, which otherwiſe by the Canon Law he could not; as to eat Fleſh upon days prohibited; to Marry without Banns firſt publiſhed; to hold Two or more Eccleſiaſtical Benefices incompatible; the Son to ſucceed the Father in his Benefice,Vid. Vaugh. Rep. fo. 25. and ſuch like. A Faculty granted to one, who is not Incumbent, to take a void Benefice, is void: But a Faculty to one, who is Incumbent of a Benefice to retain the ſame, is good. It is called Faculties in the Statute of 28 H. 8. cap. 16. Sir Ed. Coke makes mention of the Court of Faculties, although it holds no Plea of ControverſieooCo. par. 4. Inſt. cap. 74.. It belongs to the Archbiſhop of Canterbury, and his chief Officer thereof is called Magiſter ad Facultates, whoſe power is to grant Diſpenſations to the ends and purpoſes aforeſaid; and ſo may every Dioceſan, as to that of Marriage, and eating of Fleſh on days prohibited. Faculty (according to Sir Ed. Coke in the place fore-cited) ſignifies a Diſpenſation: ſo that Facultates (in this ſenſe) Diſpenſationes & Indulta are Synonyma. Who likewiſe there ſays, that this Authority was raiſed and given to the Archbiſhop of Canterbury by the Statute of 25 H. 8. c. 21. whereby Authority is given to the ſaid Archbiſhop and his Succeſſors to grant Diſpenſations, Faculties, &c. by himſelf or his ſufficient and ſubſtantial Commiſſary or Deputy for any ſuch matters, commonly called the Maſter of the Faculties, and of all ſuch matters as whereof heretofore ſuch Diſpenſations, Faculties, &c. then had been accuſtomed to be had at the See of Rome, or by Authority thereof.ppTrin. 44 Eliz. C. B. Rot. 1525. lib. 4. fo. 117. Lib. pl. Co. p. 512, 513. Paſcl. 9 J…c. C. B. en Ireland, le Caſe de Commenda in Davis Rep. For by the Stat. of 28 H. 8. c. 16. it appears, the Biſhop of Rome did grant Faculties and Diſpenſations to the Kings Subjects, as, Pluralities, Unions, Trialities, Appropriations, Commendams, Exemptions. And the Judgment of Parliament expreſſed in the Preamble of that Statute of Faculties is very remarkable to this purpoſe; where it is recited, that the Biſhop of Rome had deceived and abuſed the Subjects of the Crown of England, pretendig and perſwading them, That he had full power to p. 108Diſpence with all human Laws, Ʋſes, and Cuſtomes of all Realms, in all Cauſes which be called Spiritual: which matter hath been uſurped and practiſed by him and his Predeceſſors for many years, to the great derogation of the Imperial Crown of England. For whereas the ſaid Realm of England, recognizing no Superiour under God, but the King, hath been, and yet is, free from ſubjection to any mans Laws, but only to ſuch as have been deviſed, made, and Ordained within this Realm for the weal of the ſame, or to ſuch other as by ſufferance of the King and his Progenitors the People of this Realm have taken at their free liberty, and by their own conſent, to be uſed among them, and have bound themſelves by long uſe and cuſtome to the obſervance of the ſame, not as to the obſervance of the Laws of any Foreign Prince, Potentate, or Prelate; but as to the accuſtomed and ancient Laws of this Realm, originally eſtabliſhed as Laws of the ſame by the ſaid ſufferance, conſent, and cuſtome, and not otherwiſe: it ſtandeth with natural equity and good reaſon, that all ſuch human Laws made within this Realm, or induced into this Realm by the ſaid Sufferance, Conſent, and Cuſtome, ſhould be Diſpenced with, abrogated, amplified or diminiſhed by the King and his Parliament, or by ſuch perſons as the King and Parliament ſhould authorize, &c. Vid. 21 H. 7. 4. a. where it is ſaid, That certain Prieſts were deprived of their Benefices by Act of Parliament in the time of R. 2. whereby it hath been concluded, that the King of England, and not the Pope, before the making of the ſaid Statute of Faculties, might de jure Diſpence with the Eccleſiaſtical Law in that and other caſes. For although many of our Eccleſiaſtical Laws were firſt deviſed in the Court of Rome, yet they being eſtabliſhed and confirmed in this Realm by acceptance and uſage, are now become Engliſh Laws, and ſhall no more be reputed Roman Canons or Conſtitutions: As Rebuffus ſpeaking De Regula Cancellariae Romanae de veriſimili notitia, Haec Regula (ſays he) ubique in Regno Franciae eſt recepta, & eſt Lex Regni effecta, & obſervatur tanquam Lex Regni, non tanquam Papae Regula; & Papa eam revocare non poteſt. The Kings of England from time to time in every Age before the time of H. 8. have uſed to grant Diſpenſations in Cauſes Eccleſiaſtical; For whereas the Law of the Church is, That every Spiritual perſon is Viſitable by the Ordinary, King William the Conqueror by his Charter Diſpenced with the exempted the Abbey of Battell from the Viſitation and Juriſdiction of the Ordinary in theſe expreſs words, Sitque dicta Eccleſia libera & quieta in perpetuum ab omni ſubjectione Epiſcoporum, & quarumlibet perſonarum dominatione, ſicut Eccleſia Chriſti Cantuarienſis, &c. whereby he Diſpences with the Law of the Church in that Caſe Vid. libr. De vera differentia Regiae poteſtatis & Eccleſiaſticae. Edit. 1534. where that whole Charter is recited at large. The like p. 109Charter was granted to the Abbey of Abingdon by King Kenulphus, 1 H. 7. 23, & 25. and Cawdry's Caſe, Co. par. 5. fo. 10. a. So likewiſe every Appropriation doth comprize in it a Diſpenſation to the Parſon Imparſonee, to have and retain the Benefice in perpetuity, as appears in Grendon's Caſe. Plow. Com. 503. In which Act the King by the Common Law ſhall be always Actor, not only as Supream Patron, but alſo as Supream Ordinary; as is alſo obſerved in Grendon's Caſe. For the King alone without the Pope may make Appropriations. 7 E. 3. Fitz. Quare Impedit 19. And in the Caſe of Malum prohibitum, and Malum in ſe, in 11 H. 7. 12. a. it is held, That the King may diſpence with a Prieſt to hold Two Benefices; and with a Baſtard, that he may be a Prieſt, notwithſtanding the Eccleſiaſtical Laws which are to the contrary. And as he may diſpence with thoſe Laws, ſo he may pardon all Offences contrary to theſe Laws, and his Pardon is a barr to all Suits pro ſalute Animae, or reformatione morum, and all Suits ex Officio in the Eccleſiaſtical Court. Hall's Caſe, Coke 5. par. fo. 51. In all Faculties or Diſpenſations, for the holding of Two Benefices, granted at the Court of Rome, there was always a particular Derogation or Non obſtante the right of Patronage of Lay-Patrons, and of the right of the King by name expreſs, where the Patronage belonged to him, otherwiſe the Faculty was void; For by the Canon Law the Lay-Patrons ought to be called to give their Conſents in all Caſes of that nature; And if ſuch a particular Non obſtante were not added in the Faculty, then there was inſerted another Clauſe, viz. Dummodo Patronorum expreſſus accedat Conſenſus; alſo by another Clauſe Authority was always given to the Official or Archdeacon, or other Eccleſiaſtical Miniſter, to put him, to whom the Faculty is granted, into poſſeſſion of the Benefice cum acciderit. And becauſe by the Canon Law the Patron's conſent was ever requiſite in a Commenda, for that reaſon in every Faculty or Licenſe granted by the Pope to make a Permutation, Union, or Appropriation of Churches, theſe words were ever added, viz. Vocatis quorum intereſt, which chiefly intends the Patron. And which Union and Approbation ſhall not according to the Common Law be made without the Patron's aſſent. Vid. 11 H. 7. 8. 6 H. 7. 13. 46 Aſſ. p. 50. Ed. 3. 26. 40 Ed. 3. 26. Grendon's Caſe, Plow. Com. 498. a. A Faculty or Diſpenſation is of ſuch force, that if a Clerk be preſented to a Benefice with Cure, and be Admitted, Inſtituted, and Inducted into the ſame, ſo that the Church is full of him, if afterwards he be preſented to another Benefice Incompatible, or elected to a Biſhoprick, and before he is Inſtituted to the ſecond Benefice, or be created Biſhop, he obtain a Faculty or Diſpenſation to retain the firſt Benefice Perpetuae Commendae titulo, that is, for his life, that Faculty or p. 110Diſpenſation ſhall be of ſuch effect, that the former Benefice ſhall not be void by acceptance of the Second, or by promotion to the Biſhoprick; but he ſhall remain full and perfect Incumbent of the firſt Benefice during his life. In the time of H. 6. when Henry Beaufort, Great Uncle to the King, being Biſhop of Wincheſter, was made a Cardinal, and after that purchaſed from the Pope a Bull Declaratory, that notwithſtanding he were made Cardinal, yet his Biſhoprick of Wincheſter ſhould not be void, but that he might retain the ſame as before; yet it was held, That the See of Wincheſter was void by aſſuming the Cardinalſhip, which exempts the Biſhop from the Juriſdiction of his Metropolitan; And for that the Cardinal fell into a Praemunire, for which he purchaſed his Pardon, which is ſound among the Charters 4 H. 6. in Archivis Turr Lond. 6, & 7 Eliz. Dyer 233. a. Jo. Packhurſt being elected to the Biſhoprick of Norwich, before that he was created Biſhop, obtained a Faculty or Diſpenſation from the Archbiſhop of Canterbury (by force of the Statute of Faculties) to retain a Parſonage which he had before in Commendam, for Three years, viz. à Feſto Michaelis An. Dom. 1560. uſque ad idem Feſtum, in An. 1563. Before the firſt Feaſt of St. Michael, Packhurſt is created Biſhop, and afterwards he reſigned the Benefice. And the Queſtion was, whether that Benefice became void by the reſignation of Packhurſt, or by his promotion to the Biſhoprick? And it was adjudged, That the Church became void by his Reſignation: Which proves, That by virtue of the ſaid Faculty or Diſpenſation he continued Parſon until he had Reſign'd. Vid. N. Br. 36. h. If a Parſon who hath a Faculty or Diſpenſation to hold his Rectory, be created a Biſhop, and after the Patron preſent another Incumbent, who is Inſtituted and Inducted, now the Biſhop ſhall have a Spoliation againſt that Incumbent; which proves that his real poſſeſſion in the Parſonage always continued by virtue of the ſaid Faculty or Diſpenſation. And in this Caſe of a Commendam in Sir Joh. Davis Reports, this difference is put between a Faculty to take a Benefice, and a Faculty to retain a Benefice, viz. That a Faculty granted to one who is not Incumbent to Take a void Benefice, is void: And a Faculty to one who is Incumbent of a Benefice to Retain the ſame Benefice, is good. By virtue of theſe Faculties, Diſpenſations, and Proviſions from the Pope, Edmond the Monk of Bury, who was a Miniſter in the Court of King Ed. 3. had many Benefices; as appears in the foreſaid Caſe of the Biſhop of St. Davids, 11 H. 4. And Hankford ſaid in the ſame Caſe, fo. 191. a. That by virtue of ſuch Faculty one and the ſame perſon had been Abbot of Glaſtenbury, and Biſhop alſo of another Church ſimul & ſemel, and had the Poſſeſſions and Dignity of both at the ſame time. Likewiſe Hen. Chichley (who was afterwards p. 111Archbiſhop of Canterbury) being a Prebend in the Cathedral Church of Sarum, was elected Biſhop of St. Davids, and before his Conſecration, the Pope reciting by his Bull, that he was elected Biſhop of St. Davids, granted him a Faculty and power to hold and enjoy all his other Benefices, till the Pope ſhould otherwiſe order, &c. Vid. Nov. Deciſ. Rot. 331. And that theſe Faculties or Diſpenſations to hold Benefices in Commendam, were granted in the Court of Rome in the time of King H. 5. appears in Lindw. de Praeb. c. Audiſtis. ver. Diſpenſatione. And although in caſe of Hen. Beauford aforeſaid, it was held, That the Diſpenſation came too late, it being granted after the Biſhop was created Cardinal; yet afterwards in the time of King H. 8. Cardinal Wolſey, having, before he was created Cardinal, obtained a Bull from the Pope, to retain the Archbiſhoprick of York as perpetual Adminiſtrator, and the Abbey of St. Albans in perpetuam Commendam, he held both during his life by virtue of the ſaid Faculty or Diſpenſation. Vid. 27 H. 8. 15. b. By theſe Preſidents and Authorities it is evident, That before the making of the foreſaid Statute of Faculties, ſuch Diſpenſations were had and obtained at the Court of Rome, to hold in Commendam Eccleſiaſtical Benefices in England. But the Truth is (as in the foreſaid Caſe de Commenda. Davis Rep.) ſuch Faculties or Diſpenſations granted by the Pope touching Eccleſiaſtical Benefices in England were ever contrary to the Law of the Realm, for it was a meer uſurpation on the Crown of England before the Statutes made againſt Proviſors. And theſe Statutes were made in declaration of the Common Law in that point. 12 Ed. 2. Fitz. Qua. Imp. 169. 19 Ed. 2. Eitz. Qua non admiſit, 7. 15 Ed. 3. Fitz. Qua. Imp. 160. 21 Ed. 3. 40. 11 H. 4. 230. a. It is alſo meet to be known, That long before King H. 8.25 Ed. 1. the Statute of 16 R. 2. and divers other Laws againſt Proviſors, 16 R. 2.and Appeals to Rome, and the Popes Uſurpation upon the Rights of the Crown of England, 38 Ed. 3 c. 1.were made well-nigh as ſevere as any ſince.27 Ed. 3. c. 1. The firſt encroachment of the Biſhop of Rome upon the Liberties of the Crown of England was made in the time time of King William the Conqueror; 25 Ed. 3.For before that time the Pope's Writ did not run in England, Davis Rep. i… the caſe of Praemunire. fo. 87.his Bulls of Excommunication and Proviſion came not thither, nor were any Citations or Appeals made from thence to the Court of Rome. Eleutherius the Pope, within leſs than two hundred years after Chriſt, writes to Lucius the Brittiſh King,Ibid. fo. 88. and calls him God's Vicar within his Kingdom. Pelagius the Monk of Bangor, about An. 400. being cited to Rome, refuſed to appear upon the Pope's Citation, affirming, That Britain was neither within his Dioceſs nor his Province And when about the year 600, Auguſtine the Monk was ſent by Gregory the Great into England, to Convert the p. 112Saxons, the Brittiſh Biſhops then in Wales regarded neither his Commiſſion nor his Doctrine, as not owing any duty to, nor having any dependence on the Court of Rome, but ſtill retained their Ceremonies and Traditions, which they received from the Eaſt-Church upon the firſt plantation of the Faith in that Iſland. And though Ina the Saxon King gave the Peter-pence to the Pope, partly as Alms, and partly in recompence of a Houſe erected in Rome for Engliſh Pilgrims, yet certain it is, that Alfred, Aethelſtane, Edgar, Edmond, Cauutus, and Edward the Confeſſor, and other Kings of the Saxon Race, gave all the Biſhopricks in England per Annulum & Baculum.

(9.) In the Caſe of Evans againſt Askwith, it was agreedqqHill. 22 … c. B. R. Rot. 2164. Evans and Riffin verſ. A…kwith. Jones Rep., That the nature of a Diſpenſation is, for to derogate and make void a Statute, Canon, or Conſtitution, as to that which it prohibites as to the party, and it is as an Exception (as to him) out of the Statute or Conſtitution. It is ſaid, that a Diſpenſation is Provida Relaxatio mali prohibiti neceſſitate vel utilitate penſata rrCokes Rep. par. 11. & Jones ibid.. And in the ſame Caſe it was alſo Reſolved by all the Judges, That the King hath power to Diſpence with Statutes and Canons in force within this Realm: By the very Common Law, of right it was in the King; for the Canons are the Eccleſiaſtical Laws of the Land, and do not bind, except they are received in the Realm, as appears by the Statute of 25 H. 8. c. 21.ssDr. Standiſh's Caſe. Relw. Rep.. And by the Statute of Merton, touching one born before Marriage, as by the Canon, yet at Common Law he is Legitimate. And 10 H. 7. 12. it is ſaid, That the King may Diſpence with one to hold Two Benefices; and it ſeems the Pope de facto and by Uſurpotion did uſe to Diſpence, and by the Stat. of 25 H. 8. cap. 21. the power is taken from the Pope and conferr'd Cumulative on the KingttVid. Cawdry's Caſe. Co. Rep. par. 5. 55. and Grendon's Caſe. Plow. Com.: And by the Stat. of 25 H. 8. the Archbiſhop of Canterbury may Diſpence in divers caſes; but that doth not exclude the power of the King.

(10.) In the ſame Caſe it was held per Curiam una voce, That where a Dean is made a Biſhop, with a Diſpenſation from the King to hold the Deanary notwithſtanding the Biſhoprick, ſuch Diſpenſation continues him Dean as before, by force and virtue of his former Title to all intents and purpoſes, ſo as that he may confirm, or make Leaſes, or do any other Act as a Dean, as if he had not been made a Biſhop at all; For before the Cano nor Conſtitution made at the Council of Laterall, for the voidance of the firſt Benefice by taking another Benefice or Promotion, it was lawful and not forbidden ſo to do; and the nature of the Diſpenſation is to exempt him from the penalty, and ſo it remains as if the Canon had never been made, which appears by 11 H. 4. in the Caſe of the Biſhop of St. Davids, That ſuch a perſon that had ſuch a Diſpenſation being Defendant in a Quare p. 113Impedit counterpleaded the Title of the Plaintiff, which he could not do by the Statute of 25 Ed. 3. unleſs he had been the Poſſeſſor thereof, and he in poſſeſſion by 4 H. 8. Dyer 1. is one who is and continues Incumbent by Inſtitution and Induction: Therefore in this caſe the firſt Title and Induction continues; And in the ſame Caſe it was alſo agreed, That ſuch Diſpenſation is not any Proviſion, for no new thing is done, but the ancient Title continues. And in Fitz. N. B. Brief Spoliation, ſuch a perſon may maintain a Spoliation, and none can maintain that, unleſs he continue his Inſtitution and Induction, Parkhur's Caſe, 6 & 7 Eliz. Such a Commendam continues to the perſon, be it that the Benefice be void by Reſignation; And 21 Jac. in a Quare Impedit in C. B. by Woodley againſt the Biſhop of Exeter and Manwayring, it was ſo Reſolved and Adjudged, and the words of that Diſpenſation are ſufficient; for it is to retain it during his life in Commendam, aut modo quocunque de jure magis efficaci, and all the profits thereto belonging, ac caetera facere & perimpl…re quae ad Deconatum pertinent in tam amplis modo & forma, as if he had not been promoted to be a Biſhop, with a Non obſtante to all Canons▪ &c. And ſo they all concluded, That the Diſpenſation continues him Dean, enabling him to Confirm Leaſes made by the Biſhop.

(11.) W. Libels for a Legacy in the Eccleſiaſtical Court againſt B. who moves for a Prohibition, becauſe he had there pleaded Plene Adminiſtravit, and proved that by one Witneſs, and they would not allow it. Richardſon, before the Statute of Ed. 6. the proper Suit for Tithes was there, and if they allow not one Witneſs to prove payment, a Prohibition ſhall be granted. And he put Morris and Eaton's Caſe in the Biſhop of Wincheſter's Caſe, where it was Ruled; if the Eccleſiaſtical Court will not allow that Plea which is good in our Law, a Prohibition ſhall be granted, as in the Caſe of Tithes. And he ſaid, the Caſe of a Legacy is all one. Crook, When one comes to diſcharge a thing by due matter of Law, and proves it by one Witneſs; if it be not allowed, no Prohibition ſhall be granted there. Richardſon, Our Caſe is proof of Plene Adminiſtravit pleaded, which goes in diſcharge: But if there be enough pleaded, which goes in diſcharge, and proves that by one Witneſs, and not allowed, a Prohibition ſhall be granted. Hutton ſaid, That properly for a Legacy the Suit is in the Eccleſiaſtical Court: although they may ſue in the Chancery for it, yet the proper Court is the Eccleſiaſtical Court. And they ſaid, that they uſed to allow one Witneſs with other good Circumſtantial proofs, if they be not in ſome Criminal cauſes, where of neceſſity there muſt be two Witneſſes. In one Hawkin's Caſe, Farmor of an Appropriation, Libels for Tithes of Lambs for ſeven years: And there payment was proved by one Witneſs, and a Prohibition p. 114was granted for Non-allowance. Yelverton, There may be a difference where the Suit is meerly Eccleſiaſtical for a Sum of Money, as for a Legacy, there the payment of the Legacy is of the nature of the thing, and the Eccleſiaſtical Court ſhall have Juriſdiction of the proof and matter. But if one gives a Legacy of twenty Oxen, and the other pleads payment of as much money in ſatiſfaction, there they cannot proceed, but at Common Law, for that, that the Legacy is altered; And if a proof of one Witneſs is not accepted, a Prohibition ſhall be granted, for now it is a Legal Trial, 35 H. 6. If the Principal be proper for their Court, the Acceſſory is of the ſame nature. Alſo the Suit is commenced for a Legacy, and the other pleads Plene Adminiſtr. there they proceed upon the Common Law: For they ſometimes take that for Aſſets, which our Law does not take. It was adjudged in the Kings-Bench. That where a Proof by one Witneſs of a Releaſe of a Legacy is diſallowed, a Prohibition ſhall be granted. Crook, In this Caſe a Proof of ſetting out of Tithes by one Witneſs diſallowed, a Prohibition ſhall be granteduuPaſch. 4 Car. C. B. Warner againſt …arret. Hetley's Rep..

(12.) One was obliged in the Eccleſiaſtical Court not to accompany with ſuch a Woman, unleſs to Church or to a Market overt. And afterwards he was ſummoned to the Eccleſiaſtical Court, to ſay, whether he had broken his Obligation, or not? And Ayliffe moved for a Prohibition, which was granted; for that, that the Forfeiture is a Temporal thing; And it does not become them in the Eccleſiaſtical Court, to draw a man in Examination for breaking of Obligations, or for Offences againſt StatutesxxGammon's Caſe. Hetley's Rep..

C. Adminiſtrator durante Minori aetate of his Brothers Son; the Son died, and made the Wife of H. his Executrix, who called C. to account in the Eccleſiaſtical Court for the Goods. And he pleads an Agreement between him and H. and that he gave 80 l. in ſatisfaction of all Accounts: But they did not accept the Plea; for that a Prohibition was prayed to be granted. Richardſon, If the party received the money in ſatisfaction, then there ſhall not be a Prohibition granted; but if there were only an Agreement without payment of money, then otherwiſe. Crook, It is a Spiritual matter, and they have Juriſdiction to determine of all things concerning that. But the Agreement prevents, that it cannot come into the Eccleſiaſtical Courtyy… Caſe. Hetley's Rep..

G. Libels againſt B. before the High Commiſſioners for an Aſſault made upon him, being a Spiritual perſon. And Attbowe prayed a Prohibition; for that although their Commiſſion by expreſs words gives them power in that caſe, yet that Commiſſion is granted upon the Statute of 1 Eliz. And it is not within the Statute: and although it be within the Commiſſion, yet they have p. 115not Juriſdiction. The words of the Statute are, That ſuch Juriſdictions and Priviledges, &c. as by any Eccleſiaſtical power have heretofore been, or lawfully may be exerciſed for the Viſitation of Eccleſiaſtical State and Perſons, and for reformation of the ſame, and for all manner of Errors, Hereſies, Schiſms, Abuſes, Offences, Contempts, and Enormities, &c. Theſe words extend only to men who ſtir up Diſſentions in the Church, as Schiſimaticks, and new-ſangled Men, who offend in that kind. Henden Serjeant, The Suit is there for reformation of Manners; and before the new amendment of the Commiſſions, Prohibitions were granted, if they meddled with Adultery, or in Caſe of Defamations; but now by expreſs words they have power of theſe matters. And that matter is puniſhable by the Commiſſioners for two Cauſes: (1) There is within the Act of Parliament by the words annexed, all Juriſdictions Eccleſiaſtical, &c. (2) It gives power to the Commiſſioners to exerciſe that; And that is meerly Eccleſiaſtical, being only pro reformatione morum, &c. The King by his Prerogative having Eccleſiaſtical Juriſdiction, may grant Commiſſions to determine ſuch things, 5 Rep. Eccleſiaſtical Caſes, fol. 8. And Richardſon ſaid, The Statute de Articulis Cleri gave cognizance to the Ordinary for laying violent hands on a Clerk. But you affirm, That all is given to the Commiſſioners, and thereby they ſhould take all power from the Ordinary: But by the Court, the Commiſſioners cannot meddle for a ſtroke in Church-Land, nor pro ſubtractione Decimarum. And yet they have expreſs Authority by their Commiſſion; for by that courſe all the Ordinaries in England ſhould be to no purpoſe. And ſo upon much debate a Prohibition was grantedzzGiles againſt …. Hetley's Rep..

On an Arreſt on Chriſtmas-day, it was ſaid by Richardſon Chief Juſtice, That upon Arreſting a man upon Chriſtmas-day, going to Church, in the Church-yard, He who made the Arreſt, may be cenſured in the Star-Chamber for ſuch an Offence. Quod Nota. It was alſo ſaid by Richardſon, that if a man ſubmit himſelf out of the Dioceſs to any Suit, he can never have a Prohibition, becauſe the Suit was not according to the Statute, 23 H. 8. commenced within the proper Dioc…ſs, as it was Adjudged. Quod Nota aaIbid. Hetley's Rep..

It the Eccleſiaſtical Court proceed in a matter that is meer Spiritual, and pertinent to their Court, according to the Civil Law, although their proceedings are againſt the Rules of the Common Law, yet a Prohibition does not lie. As if they refuſe a ſingle Witneſs to prove a Will, for the cognizance of that belongs to them.Vid the Stat. 24 E. 1. And Agreed alſo, That if a man makes a Will, but appoints no Executor, that that is no Will, but void: But if the Ordinary commits the Adminiſtration with that annexed, the Legatary to whom any Legacy is deviſed by ſuch Will, may ſue the p. 116Adminiſtrator for their Legacies in the Eccleſiaſtical Court. Note, P. 4. Jac. B. R. Peep's Caſe, a Prohibition was denied where they in the Eccleſiaſtical Court refuſed a ſingle Witneſs in proof of payment of a LegacybbChadron againſt Harris. Noy's Rep.. After Prohibition, if the Temporal Judge ſhall upon ſight of the Libel conceive, that the Spiritual Court ought to determine the cauſe, he is to award a Conſultation And by the Sta…. of 50 E. 3. c. 4. the Eccleſiaſtical Judge may proceed by vertue of the Conſultation once granted, notwithſtanding any other Prohibition afterwards, if the matter in the Libel be not enlarged or changed.

B. Adminiſtrator of A. makes C. his Executor and dies; C. is ſued in the Eccleſiaſtical Court to make an Account of the goods of A. the firſt Inteſtate: And C. now moves for a Prohibition, and had it; for an Executor ſhall not be compel'd to an Account: But an Adminiſtrator ſhall be compel'd to Account before the Ordinary ccSparrow againſt Norfolk. Noy's Rep..

Reſolved by the Court, That a Prohibition ſhall not be awarded to the Admiral or Eccleſiaſtical Courts after Sentence; Alſo that a Plea was there pleaded and refuſed, which was Triable at Common LawddHollmaſts Caſe. Noy's Rep..

Note, A Prohibition was awarded upon the Statute of 23 H. 8. becauſe the party was ſued out of the Dioc…ſs. And now a Conſultation was prayed, becauſe the Interiour Court had remitted that Cauſe to the Arches, and their Juriſdiction alſo; yet a Conſultation was deniedeeNoy's Rep. poſt Dr. Cademan's Caſe verſ. Grendan..

A Suit was in the Eccleſiaſtical Court, and Sentence paſſed for one with Coſts, and nine months after the Coſts are Aſſeſt and Taxed; and then comes a Pardon of 21 Jac. which relates before the taxing of the Coſts. But afterwards the Sentence and that Pardon was pleaded, and allowed in diſcharge of the Coſts. Then W. who had recovered, ſues an Appeal, and P. brought a Prohibition, and well, and no Conſultation ſhall be awarded, becauſe by the Court, that Pardon relating before the Taxation of Coſt, had diſcharged them. As 5. Rep. 51. Hall's CaſeffPalmer verſ. Warner. Noy's Rep..

B. and Two others ſue upon three ſeveral Libels in the Eccleſiaſtical Court, and they joyn in a Prohibition. And by the Court that is not good: But they ought to have had three ſeveral Prohibitions; and therefore a Conſultation was granted. Mich. 26 & 27 Eliz. C. B. If A. Libels againſt B. for Three things, by one Libel, B. may have One or Three Prohibitions. Note, Dyor 171.ggPoſt S…adding's Caſe in Noy's Rep..

(13.) By the Statute of 25 H. 8. cap. 19. Appeals to Rome being prohibited, it is Ordained, That for default of Juſtice in any of the Courts of the Archbiſhops of this Realm, &c. it ſhall be lawful p. 117to Appeal to the King in his High Court of Chancery, and thereupon a Commiſſion ſhall be granted, &c. And by a Proviſo towards the end of that Statute, an Appeal is granted to the King in Chancery on Sentences in places exempt in ſuch manner as was uſed before to the See of Rome. So that this Court grounded on the ſaid Commiſſion is properly as well as vulgarly called, The Court of Delegates, for that the Judges thereof are Delegated to fit by virtue of the Kings ſaid Commiſſion under his Great Seal upon an Appeal to him in Chancery, and that ſpecially in Three Cauſes: (1) When a Sentence is given in any Eccleſiaſtical Cauſe by the Archbiſhop or his Official. (2) When any Sentence is given in any Eccleſiaſtical Cauſe in places exempt. (3) When a Sentence is given in the high Court of Admiralty in Suits or Actions Civil and Maritime, according to the Civil Law. That this Court of Delegates may ExcommunicatehhH. 10 Jac. B. per Coke., was Reſolved by all the Judges in the Archbiſhop of Canterbury's CaſeiiRol. Abridg. verb. Prerogative, lit. G.. They may alſo commit or grant Letters of AdminiſtrationkkH. 10 Jac.. This Court of Delegates is the higheſt Court for Civil Affairs that concern the Church, for the Juriſdiction whereof it was provided, 25 H. 8. That it ſhall be lawful for any Subject of England, in caſe of defect of Juſtice in the Courts of the Archbiſhop of Canterbury, to Appeal to the King's Majeſty in his Court of Chancery, and that upon ſuch Appeal, a Commiſſion under the Great Seal ſhall be directed to certain perſons, particularly deſigned for that buſineſs: ſo that from the higheſt Court of the Archbiſhop of Canterbury, Co. Inſt. par. 4. cap. 74.there lies an Appeal to this Court of Delegates. Of this Subject of Appeals the Lord Coke ſays, That an Appeal is a Natural defence, which cannot be taken away by any Prince or power, and in every Caſe generally when Sentence is given, and Appeal made to the Superiour, the Judge that did give the Sentence is obliged to obey the Appeal, and proceed no further until the Superiour hath examined and determined the cauſe of Appeal. Nevertheleſs where this Clauſe (Appellatione remota) is in the Commiſſion, the Judge that gave Sentence is not bound to obey the Appeal, but may execute his Sentence and proceed further, until the Appeal be received by the Superiour, and an Inhibition be ſent unto him: For that Clauſe Appellatione remota hath Three notable effects; (1) That the Juriſdiction of the Judge à quo is not by the Appeal ſuſpended or ſtopped, for he may proceed the ſame notwithſtanding. (2) That for proceeding to Execution or further proceſs, he is not puniſhable. (3) That theſe things that are done by the ſaid Judge after ſuch Appeal cannot be ſaid void, for they cannot be reverſed per viam Nullitatis. But if the Appeal be juſt and lawful, the Superiour Judge ought of right and equity to receive and admit the ſame; and in p. 118that caſe he ought to reverſe and revoke all mean Acts done after the ſaid Appeal in prejudice of the Appellant.Dyer. Co. ubi ſupr. At the Parliament held at Clarendon, An. 10 H. 2. cap. 8. the Forms of Appeals in Cauſes Eccleſiaſtical, are ſet down within the Realm, and none to be made out of the Realm, Ne quis appellat ad dominum Papam, &c. ſo that the firſt Article of the Statute of 25 H. 8. concerning the prohibiting of Appeals to Rome is declaratory of the ancient Law of the Realm. And it is to be obſerved (ſays the Lord Coke) that the firſt attempt of any Appeal to the See of Rome out of England, was by Anſelme Archbiſhop of Canterbury, in the Reign of William Rufus, and yet it took no effect. Touching the power and Juriſdiction of the Court of Delegates. Co. ibid.Vid. le Caſe Stevenſon verſus Wood. Trin. 10 Jac. B. R. Rot. 1491. in Bulſtr. Rep. par. 2. wherein theſe Three points are ſpecially argued, (1) Whether the Judges Delegates may grant Letters of Adminiſtration? (2) Whether in their perſon the King be repreſented? (3) Whether the Court of Delegates may pronounce Sentence of Excommunication, or not?

(14.) The High Commiſſion-Court in Cauſes Eccleſiaſtical was by Letters Patents, and that by force and virtue of the Statute of 1 Eliz. cap. 1. the Title whereof is, An Act reſtoring to the Crown the Ancient Juriſdiction Eccleſiaſtical, &c. the High Commiſſioners might, if they were competent, that is, if they were Spiritual perſons, proceed to Sentence of ExcommunicationllDyer 23 Eliz. 371. Co. Inſt. par. 4. cap. 74.. What the power of this Court was, and whether they might in Cauſes Eccleſiaſtical proceed to Fine and Impriſonment, is at large examined by the Lord Coke in the Fourth part of his Inſtitutes, where he reports the Judgment and Reſolutions of the whole Court of Common Pleas thereon, Paſch. 9 Jac. Reg. upon frequent Conferences and mature deliberation, ſet down in writing by the order and command of King James. Likewiſe whom, and in what Caſes the Eccleſiaſtical Courts may examine one upon Oath, or not (there being a penal Law in the Caſe;) and whether the ſaying, Quod nemo tenetur ſeipſum prodere, be applicable thereunto. Vid. Trin. 13 Jac. B. R. Burroughs, Cox, &c. againſt the High Commiſſioners. Bulſtr. par. 3.

(15.) The Statutes of 24 H. 8. and 25 H. 8. do Ordain, That upon certain Appeals the Sentence given ſhall be definitive, as to any further Appeal; notwithſtanding which, the King as Supream Governour, may after ſuch definitive Sentence grant a Commiſſion of Review or Ad Revidendum, &c. mmCo. Inſt. par. 4. c. 74.Sir Ed. Coke gives two Reaſons thereof, (1) Becauſe it is not reſtrained by the Statute. (2) For that after a definitive Sentence, the Pope as Supream Head by the Canon Law uſed to grant a Commiſion Ad Revidendum; p. 119and what Authority the Pope here exerciſed, claiming as Supream Head, doth of right belong to the Crown, and by the Statutes of 26 H. 8. cap. 1. and 1 Eliz. cap. 1. is annexed to the ſame. Which accordingly was Reſolved Trin. 39 Eliz. B. R. Hollingworth's Caſe; In which Caſe Preſidents to this purpoſe were cited in Michelot's Caſe, 29 Eliz. in Goodman's Caſe,Lib. … R…ſt. fo. 16. Appeal 10 …. ib. Rome 389. and in Huet's Caſe, 29 Eliz. Alſo vid. Stat. 8 Eliz. cap. 5. In the Caſe between Halliwell and Jervoice, where a Parſon ſued before the Ordinary for Tithes, and thence he appeals to the Audience, where the Sentence is affirmed; then the party appeals to the Delegates, and there both Sentences are Repealed: It was agreed, That in ſuch caſe a Commiſſion Ad Revidendum the Sentences may iſſue forth; but then ſuch a Reviewing ſhall be final without further Appeal: But if the Commiſſioners do not proceed to the Examination according to the Common Law, they ſhall be reſtrained by a ProhibitionnnMere's Rep..

(16.) The Court of Peculiars is that which dealeth in certain Pariſhes, lying in ſeveral Dioceſſes, which Pariſhes are exempt from the Juriſdiction of the Biſhops of thoſe Dioceſſes, and are peculiarly belonging to the Archbiſhop of Canterbury: Within whoſe Province there are fifty ſeven ſuch Peculiars; for there are certain peculiar Juriſdictions belonging to ſome certain Pariſhes, the Inhabitants whereof are exempt ſometimes from the Archdeacons, and ſometimes from the Biſhops Juriſdiction.

(17.) If a Suit be in the Eccleſiaſtical Court for a Modus Decimandi, if the Deſendant plead payment, it ſhall be tryed there, and no Prohibition may be granted, for that the Original Suit was there well commencedooMich. 14 Jac. B. R. inter G…ſlin & Harden. Agreed per Curiam. Hob. Rep. Caſe 314.. So if payment be pleaded in a Suit depending in the Eccleſiaſtical Court for any thing whereof they have the original cognizanceppR…l. Abr. ver. Prohibition, pag. 306.. But if a man ſue for Tithes in the Eccleſiaſtical Court againſt J. S. and makes Title to them by a Leaſe made to him by the Parſon; and J. S. there alſo makes Title to them by a former Leaſe made to him by the ſame Parſon: ſo that the Queſtion there is, which of the ſaid Leaſes ſhall be preferred. In this caſe a Prohibition ſhall be granted, for they ſhall not try which of the ſaid Leaſes ſhall be preferr'd, although they have cognizance of the Original; for the Leaſes are TemporalqqM. 12. Jac. B. R. Wrots and Clifton. per …. Rol. ibid.. If a man having a Parſonage Impropriate make a Leaſe for years of part of the Tithes by Deed, and the Deed be denied in the Eccleſiaſtical Court, and Iſſue taken thereon, a Prohibition ſhall be grantedrrPaſch. … Jac. B. per Cur. Rol. ibid.. If a Parſon compound with his Pariſhioner for his Tithes, and by his Deed grant them to him for a certain Sum for one year according to Agreement, and after he ſue the Pariſhioner in the Eccleſiaſtical Court for Tithes in kind: no Prohibition to be granted on that diſcharge by Deed: for they may well try that, having cognizance p. 120of the Principalss8 E. 4. Rol ibid. nu. 6.. If a Parſon Leaſe all the Tithes of his Benefice to the Pariſhioner, and after ſue him in the Eccleſiaſtical Court for his Tithes in his hands; no Prohibition to be granted, for the Leaſe is a good diſcharge therett8 E. 4. 14. per Cho….. Likewiſe, if the Pariſhioner grant Land to the Parſon for and in lieu of his own Tithes, and after the Parſon ſue him in the Eccleſiaſtical Court for the Tithes; no Prohibition to be granted, for that matter will be a good diſcharge thereuuIbid.. If a Parſon ſue for Tithes in the Eccleſiaſtical Court, and the Defendant there plead an Arbitrement in Bar, they ſhall try that there; and no Prohibition to be granted upon that, &c. for by intendment it is a good diſcharge therexxP. 12 Jac. per cur. Prohibition denied. Tun. 12 Ja. B. R. inter R…ynolds and H…yes. Adjudg. and Conſultation granted.. Likewiſe, if a Parſon ſue for Tithes in the Eccleſiaſtical Court, and the Defendant there plead a Leaſe of them by Deed by the Parſon to him rendring Rent; to which the Plaintiff ſays, the Rent was reſerved upon condition of Non-payment to be void, and averrs, that it was not paid at a certain day, and the other pleads payment at the day: This ſhall be tryed there, and no Prohibition granted yyTr. 16 Ja. B. R. inter Griſhn and Bulſuſt. per Cur. Rol. ibid. nu. 1 l.. If a Parſon Leaſe by Deed the Tithes of the Pariſh, and after ſues for the Tithes in the Eccleſiaſtical Court, and there the Leaſe is pleaded, where the Queſtion between them is, Whether it be the Tithes of the whole Pariſh, or only of ſome particular things? yet no Prohibition lies, for they have cognizance of the Original; but if they judge contrary to the Common Law, a Prohibition lies after SentencezzMich. 13 Car. B. R. inter Dr. Peclington and St. Saint John.. If a man ſue for a Legacy in the Eccleſiaſtical Court, and the Defendant plead a Releaſe in Bar, and the Plaintiff deny it; that ſhall be tryed there, for that it ariſes from the Original cauſe whereof they have the JuriſdictionaaMich. 15 …re B. R. inter Percher & Wheble per Cur. Prohibition denyed. Hob. Rep. 255 Anonymus.. If an Adminiſtrator ſue for a Legacy due to the Deceaſed in the Eccleſiaſtical Court, and the Defendant plead the Releaſe of the Deceaſed in Bar, and the Plaintiff avoid it, for that the Deceaſed was an Ideot; That Ideocy ſhall be tryed there, and no Prohibition granted, for that they have Juriſdiction of the Original matterbbDict. Caſ. Percher & Wheeble. Prohibition denied but againſt the Opinion of Warburton.. If a Parſon ſue in the Eccleſiaſtical Court, and the Defendant there plead, that the Plaintiff was preſented upon a Simonaical Contract againſt the Stat. of 31 Eliz. That ſhall be tryed there, for that they have Juriſdiction of the Original thingccMich. 8 Jac. B. R. Pen's Caſe.. But the Eccleſiaſtical Court can take no cognizance of a Cuſtome whereby the Inheritance is perpetually charged, although the thing Cuſtomable be cognizable by them; And therefore if the Church-wardens of the Pariſh of S. Libel in the Eccleſiaſtical Court againſt J. S. Farmer of the Farm of D. for a Contribution to the Reparation of the Church, and alledge, that part of the Farm lies in the Pariſh of S. and part thereof in the Pariſh of W. and alledge a Cuſtome, that the Farmers of the ſaid Farm have uſed time out of mind to contribute to p. 121the Reparation of the Church of S. throughout the whole Farm: if the Defendant ſaith, that part of the Land of the ſaid Farm lieth within the Pariſh of W. and that it had uſed time out of mind, &c. for that part to contribute to the Church of W. and not to S. and ſo deny the ſaid Preſcription: This ſhall not be Tryed in the Eccleſiaſtical Court, but at the Common Law, and for that a Prohibition lies; for they ſhall not try a Cuſtome in the Eccleſiaſtical Court, by which the Inheritance is to be perpetually chargedddTr. 16 Jac. B. R. Between the Church-Wardens of Steevenage and Green. Reſolved.. If A. the Parſon of D. ſue for Tithes in the Eccleſiaſtical Court againſt B. who pleads a Leaſe for years made to him by the Parſon; To which A. the Parſon Replies, That he was Non-reſident, and abſent 80 days and more in ſuch a year, &c. from his Benefice, by which the Leaſe became void: No Prohibition lies upon that plea, for that it is grounded on the Statute of 13 Eliz. and although it was Objected, That the Judges Eccleſiaſtical ſhall not have the Expoſition of a Statute; yet for that they have Juriſdiction of the Original cauſe, they ſhall have power to try that which incidently doth ariſe from thence; and the Prohibition was denied eeHill. 14 Car. B. R. inter St. Tho. Lucy and Dr. Lucy per Cur. Roll. ubi ſupr. p. 308. nu. 22..

(18.) A Prohibition was prayed upon the Statute of 23 H. 8. for ſuing for a Legacy of ten pounds in the Prorogative Court, whereas the party did dwell in another Dioceſs; but becauſe the Will was proved in that Court,Mich. 3 Car. C. B. Smith and Executors of Poyndrell's Caſe. Cro. par. 3.Mic 3 and there Sentence was given for the Legacy, and an Appeal upon the Sentence to the Delegates, where it was affirmed, and endeavour was to ſtay the Suit by the Statute, the party having ſo long allowed of the Juriſdiction of the Court; Adjudged, the party came too late now to have a Prohibition.

(19.) In Norwood's Caſe it was held, That where a man is ſued in the Eccleſiaſtical Court for ſlanderous words, a General Pardon doth not aid the party, for ſtaying the Suit there, which is for or ad inſtantiam partis; But contrary, where the party is ſued there ex officio Judicis.

(20.) In order to a Prohibition it was ſurmiſed, That the Defendant was a Clerk, and aſſaulted his Servant, and he coming to keep the Peace and to aid his Servant,Hill. 41 Eliz. B. R. Kelley & Walker's Caſe. Cro. par. 1. Vid. More, Caſe 1227. laid his hands peacably upon the Defendant; for which he ſued him in the Eccleſiaſtical Court, where he pleaded this matter, and they would not allow of his plea: It was ſaid by the Juſtices, That this Caſe was out of the Statute of Articuli Cleri & Circumſpecte agatis; for here the party had (Quaere by what Law? for this is not in the Caſe of Se Defendendo) good cauſe to beat the Clerk, and a Prohibition was granted.

p. 122(21.) By the Juſtices, if Iſſue be joyned, whether a Church be void by Ceſſion, Deprivation, Paſch. 6 Eliz. More's Rep.or Reſignation, it ſhall be Tried by the Countrey, becauſe it is a thing mixt; for the Avoidance is Temporal, and the Deprivation is Spiritual: But habilitie, Baſtardy, ne unque accouple en Loyal Matrimony ſhall be tried by the Certificate of the Biſhop but Baſtardy pleaded in a Stranger to the Writ ſhall be tried by the Country.

(22.) A Sentence was given definitive in the Eccleſiaſtical Court in a Suit there for Tithes,Girrye's Caſe. More's Rep. pro triplici valore; a Prohibition was prayed; a ſpecial Prohibition was awarded, That they ſhould not proceed to the Execution of the Sentence, as to the treble value, becauſe that Court is not to give the treble value, but the double value only.

(23.) In a Caſe between a Parſon and Church-wardens againſt one Reynolds, it was ſuggeſted, That all thoſe who had the Houſe wherein the ſaid Reynolds did dwell, had uſed to find meat and drink for the Parſon and them,Reynold's Caſe. More's Rep. going in Proceſſion in Rogation-week, at his houſe; and becauſe he did not find them meat and drink, they ſued him in the Eccleſiaſtical Court, and a Prohibition was awarded, becauſe the Cuſtome was a cuſtome againſt the Law.

(24.) In Babington's Caſe it was Reſolved, That if one be ſued in the Eccleſiaſtical Court ex Officio, More. Caſe 1235.or by Libel, and he demand the Copy of the Libel which is denied; That a Prohibition lieth in ſuch caſe. Vid. Stat. 2 H. 4.

(25.) In a Prohibition upon a Libel in the Eccleſiaſtical Court, where the Suit was for Tithe-Apples, in diſcharge of which he there pleaded an Award,Paſch. 12. Jac. B. R. Parker againſt Remp. Bulſtr. par. 2. which was, That he was to pay ſo much for the Tithe; pleads there the Arbitrement, the which plea they refuſed, ſuppoſing this to be void: upon this a Prohibition prayed. Coke, We will not grant a Prohibition in this caſe: So in a Suit there for a Legacy, if payment of the ſame be there pleaded, which is not ſufficient, the payment is Triable there by 1 R. 3. fol. 4. When the Original begins in the Eccleſiaſtical Court, although that afterwards a matter happens in Iſſue, which is Triable at the Common Law, yet this ſhall be tried there by the Eccleſiaſtical Law: As if one do ſue there for a Horſe to him deviſed, the Defendant there pleads, that the Deviſor did give this Horſe unto him in his life time; This is Triable by our Law, yet this ſhall be tried there by their Law. In the ſame manner it is, where the Original doth begin here, the ſame ſhall be tried here by our Law, as in a Quare Impedit, able, or not able; if it were otherwiſe, they ſhould there try nothing, This is belonging to them; But if they will there draw the matter, ad aliud examen, as upon proof of a Deed, they judge otherwiſe p. 123than we do: As in caſe of a Leaſe for years to be made, they hold the ſame to be Traditione, or void; And ſo a Grant of Goods to be delivered, or not good. If they will judge in Common Law-matters, otherwiſe than we do, there in ſuch caſe a Prohibition lies: That which we call Orders, they amongſt them do call Acts: The Court all clear of Opinion, That this plea of the Award there pleaded,Mich. 1. Car. B. R. Bulſtr. par. 3.Mic 1 and by them refuſed, no ground for a Prohibition; and ſo by the Rule of the Court a Prohibition was denied. And in Dicke's Caſe againſt Browne a Prohibition was denied, and a Conſultation granted, becauſe the Eccleſiaſtical Court (as was then admitted) having cognizance of the Principal, hath cauſe alſo there to determine of the Acceſſory.

(26.) If a Parſon ſue upon the Stat. of 2 Ed. 6. in the Eccleſiaſtical Court for the double value for not ſetting forth the Tithes, and the Defendant ſurmize, That he did ſet them forth, and that they would not there allow or admit the proof thereof by one Witneſs; no Prohibition lies for that, becauſe they have the cognizance of the matterffHill. 9 Car. B. R. inter Yelle and Sir Ed. Powell. Vid. Roll. Ab…. P…ohibition, pag. 299. nu. 10.. In this caſe the Prohibition was denied per Curiam.

(27.) If the Bounds of a Village in a Pariſh come in queſtion in the Eccleſiaſtical Court, in a Suit between the Parſon Impropriate and the Vicar of the ſame Pariſh, as if the Vicar claim all the Tithes within the Village of D. within the Pariſh, and the Parſon all the Tithes in the reſidue of the Pariſh; and the queſtion between them is, Whether certain Lands whereof the Vicar claims the Tithe, be within the Village of D. or not, yet inaſmuch as it is between Spiritual perſons, viz. between the Parſon and the Vicar, although the Parſon be a Lay-man, and the Parſonage appropriate a Lay-ſee, yet it ſhall be tried in the Eccleſiaſtical Court, and no Prohibition be granted; And in this caſe the Prohibition was deniedggHill. 15 Ca…. B. R. Between Ives and Weight. per Cu…iam..

(28.) Where Suit hath been in the Eccleſiaſtical Court for ſomething Spiritual mixt with other matter Triable at Common Law; In ſuch caſe a Prohibition hath been granted as to the matter Triable by the Common Law, and not as to the reſt, if they may be ſevered hhMich. 14 J…. B. R. Fiſh and Cham…erlain Reſol. Contra M. 8 Jac. per Cur. Jener's Caſe. Roll. Abr. p. 314.. As if a Suit be in the Eccleſiaſtical Court to avoid the Inſtitution of one is Inſtituted to A. his Chappel of Eaſe as he pretends; if the other ſuggeſt, That A. is a Parochial Church of it ſelf: a Prohibition lies as to a Trial, whether it be a Parochial Church of it ſelf or not, for that they ſhall not try the Bounds of the Pariſh; but not as to a Trial concerning the Inſtitution, for that belongs to the Eccleſiaſtical Court to examine whether it be well done, or notiiCaſe Fiſh and C…amberlai….. But Houghton ſaid, they cannot well try the Inſtitution without trying the Bounds of the PariſhkkRoll ubi ſupr.. If a Teſtament be made of Lands and Goods, and there be a Suit in p. 124the Eccleſiaſtical Court for the Goods, and the queſtion be, whether the Teſtator did revoke his Will in his life time, or not: a Prohibition lies as to the Land, and not as to the GoodsllMich. 13. Jac. B inter Athil & Ath…l. Reſolv.. So if a man ſues for the Probat of a Teſtament in the Eccleſiaſtical Court, and in the Teſtament there be Lands deviſed, and other perſonal Goods: a Prohibition lies as to the Land, but not as to the reſtmmMich. 14. Jac. B. R. Bancroft's Caſe.. Upon an Allegation in ſuch caſe, That the Deviſor revoked his Will before his death, a Prohibition was granted as to the Land nnHill 14 Jac. B. R. Nevil and Boyer verſ. Winchcombe..

(29.) If a man be ſued out of his Dioceſs, and there Anſwers without taking Exception thereunto, and afterwards Sentence be given againſt him, he ſhall not after have a Prohibition, for that he did not take Exception to the Juriſdiction before, but affirmed the Juriſdiction; In this caſe Prohibition hath been deniedooPaſch. 15 Jac. B. R. Inter Pudſ…y and Richardſon. per Cur.. If it appears in the Libel, that the Court hath not Juriſdiction of the cauſe, a Prohibition lies after Sentence; but otherwiſe it is, if it doth not ſo appear in the Libel, but by avermentppMich. 8 Jac. B.. Generally, if a Suit be in the Eccleſiaſtical Court, and Sentence there given for the Plaintiff, and thereupon the Defendant Appeals, and after pray a Prohibition; no Prohibition is to be granted, although if he had come before Sentence, it ought to have been granted, for that it is inconvenient, after ſo much Expence and no Exception taken to the Juriſdiction, then to grant a Prohibition qqHill. 9 Car. B. R. Friz…well's Caſe.. Where a man by intendment ſhall have remedy by Appeal, no Prohibition lies; And therefore if a man deviſe a Legacy to B. to be paid him within one year after his death, Provided, that if he die within the year, that then the Legacy ſhall be void, and ſhall be divided between D. and E. and after B. die within the year, and his Executor ſue for the Legacy, and Sentence given for him, for that they there held the Condition to be void: yet no Prohibition lies, for that by intendment he hath his remedy by Appeal; and in this caſe a Prohibition was deniedrrMich. 21 Jac. B. R. Clak's Caſe Reſolved.. If a man hath a Prohibition on a Libel for Tithes of Faggots, on a Suggeſtion, that the Faggots were made of great Trees above twenty years growth, and in the Suggeſtion the quantity of Faggots be miſtaken; yet if it appears that he made his Suggeſtion according to the Copy of the Libel given him by his Proctor, no Conſultation ſhall be brought, for by the Statute of 2 H. 5. he ought to have a true Copy of the LibelssMich. 4 Jac B. R. inter Swine…on and Man, Adjudged.Mic 4.

(30.) The Caſe was, where A. ſued B. for Tithes within the Pariſh of C.—B. ſaid, they were within the Pariſh of D. and the Parſon of D. came pro intereſſe ſuo, and they proceed there to Sentence. Queſtion, if in ſuch a Pariſh or ſuch a Pariſh, ſhall be tried by the Law of the Land or of the Church? Wray ſaid, It was Triable by the Common Law: Fenner ſaid, the Pope hath p. 125not diſtinguiſhed of Pariſhes, but Ordained, that Tithes ſhall be paid within the PariſhttStranſ…am and Cullington's Caſe. Cro. par. 1..

(31.) K. …arſon of S. ſued C. in the Spiritual Court for Tithes of certain Lands in the Pariſh of S.—D. Plaintiff in the Prohibition, came pro intereſſe ſuo, and ſaid there was a Cuſtome within the Pariſh of S. that the Parſon of H. ſhall have Tithes 13 Cheeſes of the Lands in S. and in recompence thereof the Parſon of S. had 13 Cheeſes for the Tithes of H. It was ſaid, the Right of Tithes were in queſtion, and not the Bounds of the Pariſh, and therefore no Prohibition; and of that Opinion was the Court, and a Conſultation awardeduuDullingham and Ryfe…y's Caſe. Cro. ib..

(32.) If an Adminiſtration be granted to A. where it ought not to be granted to him, and after the Adminiſtration be Repealed, and granted to B. for that he is the next of Kin; In this caſe B. may ſue A. in the Eccleſiaſtical Court to Account for the profits of the Goods and Chattels of the Deceaſed during his time, and no Prohibition to be granted, for B. cannot have an Action of Treſpaſs againſt A. nor hath he any remedy for them at the Common Law xxHill. 15 Jac. B R. Wadſworth and Andrew's Caſe, Adjudg'd..

(33.) A Parſon may ſue in the Eccleſiaſtical Court for a Modus Decimandi, and no Prohibition ſhall be granted, for it is in the nature of TithesyyCo. 11. D…. Grant, 16.. But a Preſcription cannot be tried in the Eccleſiaſtical Court, for that it ought to be tried by a Jury, which cannot be therezzTemp. E. 1. Roll. Abr. p. 283. nu. 16.. Yet if a Parſon Preſcribe to have Tithes of things not Tithable, as of Rents of Houſes, he may ſue for that in the Eccleſiaſtical Court, and no Prohibition lies; yet no Tithes de jure ought to be paid of themaaCo. ubi ſupr.. So he may ſue in the Eccleſiaſtical Court for the Tithes of great Trees, which he claims by Preſcription, and no Prohibition lies, yet de jure they are not Tithable. Quaere 9 H. 6. 46.

(34.) If there be a Cuſtome, that after the Graſs is cut and ſet into Graſs-cocks, the Tenth Cock be aſſigned to the Parſon, and that by the Cuſtome it ſhall be lawful for him to make the ſame into Hay upon the Land, and the Owner of the Land diſturb him from making the ſame, he may ſue for that in the Eccleſiaſtical Court; and no Prohibition ſhall be granted, for that is incident to the Cuſtome to come there to make the ſame into HaybbMich. 14 Jac. B. Reynold, and N…wbery. Roll. Abr pag. 284.. Alſo the proper place to ſue for a Legacy, is the Eccleſiaſtical Court, for that it is not any Debt, but only due by the Will. If A. do owe to B. five Marks, and he Deviſe by his Will, that whereas he doth owe five Marks to B. his Executor ſhall make it 10 l. The Suit for that 10 l. may be in the Eccleſiaſtical Court, for that is not any Addition to the five Marks, but a new Sum given in ſatisfaction of the five Marks, and ſo no part of the 10 l. any Debt, but only p. 126a LegacyccMich. 22 Jac. B. R. Churley and Wood. Prohibition denied.. Alſo if a man deviſe a Rent out of his Stock and Houſe which he hath for years, the Deviſee may ſue for that Rent in the Eccleſiaſtical Court, for that it iſſues out of a Chattel, and no remedy for it at the Common LawddHill. 7 Jac. B. May James Caſe. per Curiam. Prohibition denied.. If a man poſſeſſed of a Leaſe for years, Deviſe that his Executor ſhall out of the profits thereof pay 20 l. to each of his Daughters at their full Age, the Executor may be ſued in the Eccleſiaſtical Court to put in Sureties to pay the Legacies, and no Prohibition ſhall be granted, for that is to iſſue out of a ChatteleeHill. 11 Jac. B. Prowe's Caſe. per Cur..

(35.) If there be a Queſtion between two perſons touching ſeveral Grants, which of them ſhall be Regiſter of the Biſhop's Court; that ſhall not be tried in the Biſhop's Court, but at Common Law, for although the Subjectum circa quod be Spiritual, yet the Office it ſelf is TemporalffHill. 8 Jac. B. ſaid by Coke to be Skinn… and Mingey's Caſe.. Alſo if a man ſet forth his Tithes by ſeverance of Nine parts from the Tenth, and after carry away the Tenth part; the Parſon cannot ſue for that in the Eccleſiaſtical Court, for that by the ſeverance of the Nine parts it did become a Chattel, for which he might have his Action of Treſpaſs ggDubitatur Paſch. 40 Eliz. B. R. inter Leigh and Wood..

(36.) It is Reported. That if a Suit be in the Eccleſiaſtical Court againſt a Woman for exerciſing the Trade of a Midwife without Licenſe of the Ordinary contrary to the Canons, a Prohibition lies, for that is not any Spiritual Function whereof they have cognizance. And in this caſe Prohibition was granted to the Court of AudiencebbTr. 9 Car. B. R. Between Benskin and Cipes. Reſolved..

(37.) The Eccleſiaſtical Court may not try the Bounds of a Pariſh, and therefore if Suit be there on that matter, a Prohibition liesiiMich. 14 Jac. B. R. Fiſher and Chamberlain.. So if the Queſtion there be, whether ſuch a Church be a Parochial Church, or but a Chappel of Eaſe, a Prohibition alſo lieskkTr. 3 Jac. B. The Churchwarden's Caſe of St. Sam…ſons in Cornwal.. In the Caſe between Elie vicar of Alderburne in the Country of Wilts and Cooke, Prohibition was granted, and thereupon Iſſue joyned, whether ſeveral Pariſhes, and tried by Verdict to be one Pariſh.

(38.) Where a man ſued for a Legacy in the Eccleſiaſtical Court againſt an Executor, and he there pleaded, that he had not Aſſets ſave only to pay the Debts, and the ſaid Court diſallow'd of that plea, a Prohibition was grantedllPaſ…. 15 Jac. B. R. Between Sing…eten and Wade..

(39.) If a man ſues in the Eccleſiaſtical Court to have an Account for the profits of a Benefice, a Prohibition lies, for that it belongs to the Common LawmmHill. 3 Jac. B. Ad. judged.. But if the Suit be for the profits taken during the time of Sequeſtration, no Prohibition liesnnIbid..

p. 127(40.) In Worts and Clyſton's Caſe, where the Plaintiff ſued for Tithes in the Eccleſiaſtical Court by virtue of a Leaſe made by the Vicar of T. for three years: The Defendant prayed to be diſcharged of Tithes by a former Leaſe: The Plaintiff in the Eccleſiaſtical Court prayed a Prohibition to ſtay his own Suit there; It was granted by the Court, becauſe they are not to meddle with the trial of Leaſes, or real Contracts there, although they have Juriſdiction of the Original cauſe, viz. the TithesooCro. par. …..

(41.) In Collier's Caſe, upon the endowment of a Vicarage upon an Appropriation, it was Ordained by the Biſhop, That the Vicar ſhould pay yearly 20 l. to the Precentor in the Cathedral Church of S. to the uſe of the Vicars Chorals of the ſaid Church: It was held by the Court, that this is a Penſion, for which Suit ſhall be in the Eccleſiaſtical CourtppTrin. 41 Eliz. B R. Collier's Caſe. Cro. par. 1..

(42.) In the Caſe between Draiton and Cotterill againſt Smith for a Prohibition, it was ſaid by Coke Chief Juſtice,Mich. 11 Jac. B. R. Bulſtr. par. 2. That if the Parſon ſues in the Eccleſiaſtical Court for Tithes, and the other pleads a Modus to the Vicar, this Modus now can never come in queſtion by this Suit between the Parſon and him, for Tithes due unto the Parſon, but this is to be queſtioned and determined there in the Eccleſiaſtical Court to whom the Tithes do belong, whether to the Parſon or to the Vicar? And this hath been divers times Adjudged in this Court, and in the Court of C. B. in Buſhe's Caſe, for Pankeridge-Church; and it hath always been clearly held, That if the Right of Tithes come into queſtion between the Parſon and the Vicar, to which of them the ſame doth belong; This is a Suit properly belonging to the Eccleſiaſtical Court to hear and determine the ſame, and in ſuch caſe they are not there to be ouſted of their Juriſdiction. And this being now a Queſtion between the Parſon and the Vicar, to which of them Tithes did belong, for which the Modus is alledged to be paid; therefore no Prohibition is to be granted in this caſe, though there be a Modus ſuggeſted to be paid unto the Vicar, for all Tithes here due to the Vicar and Parſon, the Parſon ſuing for the Tithes there, as due unto himſelf, and not unto the Vicar. And ſo the Queſtion is as touching the Right of Tithes between the Parſon and the Vicar; which is a Suit proper for the Eccleſiaſtical Court. And this is to be obſerved for a ſure Rule, in ſuch a Caſe, never to have a Prohibition granted; The Reaſon of this is, becauſe that the Modus ſuggeſted to be paid, cannot come in queſtion upon this Suggeſtion of this payment unto the Vicar, but only the Right of Tithes, to whom they belong, whether to the Parſon or to the Vicar; and divers Judgments have been accordingly given in the like Caſe: And ſo by the Rule of the whole Court a Prohibition was denied.

p. 128(43.) Whether,Mich. 14 Jac. B. R. Harding and others againſt Goſeling. Bulſtr. par. 3. and how far, and in what manner the Eccleſiaſtical Court may exerciſe its Juriſdiction in cognizance of a Modus Decimandi is at large argued and debated at the Bench in Harding's Caſe againſt Goſeling, where in a Prohibition to ſtay Proceedings in the Eccleſiaſtical Court, upon a Suit there for Tithes, where G. Libelled againſt H. for a Modus Decimandi, being not paid, and there H. alledged another Modus Decimandi, which Allegation the Eccleſiaſtical Court refuſing to admit, a Prohibition was thereupon prayed in B. R. In this caſe Doderidge Juſtice ſaid, That the Modus Decimandi is as well due to the Parſon, as Tithe is at the Common Law; and if the Parſon do Libel in the Eccleſiaſtical Court for a Modus Decimandi (as he may do) and another Modus is there alledged, and this refuſed, the Eccleſiaſtical Court may try and determine this matter touching this Modus, and no cauſe to grant a Prohibition for this Refuſal: But if the Eccleſiaſtical Court doth deny to admit the Allegation for the Modus upon this ground only, becauſe the practice of the Eccleſiaſtical Law and our Law do differ in the manner of Proof; as for default of two Witneſſes, one being allowed at Common Law, but not at the Eccleſiaſtical Law: In this Caſe a Prohibition is grantable; but otherwiſe the Eccleſiaſtical Juriſdiction may as well try the Modus Decimandi, as the Right of Tithes. But if a Parſon doth Libel there for Tithes in kind, and a Modus is alledged and there pleaded, but refuſed to be admitted or allowed: in that Caſe a Prohibition is grantable upon ſuch Refuſal. Haughton Juſtice, In this Caſe a Prohibition ought to be granted, otherwiſe in ſuch caſes, upon every ſmall difference alledged in the Modus, that Court may try and determine the validity of every Modus Decimandi, which the Eccleſiaſtical Court cannot do by the Law: for that Court is not permitted by our Law to try a Modus Decimandi; and therefore that Court proceeding to try this Modus, which is determinable by Common Law, and not in the Eccleſiaſtical Court, a Prohibition ought to be granted. But Doderidge Contra, No Prohibition is in this caſe to be granted, for the Eccleſiaſtical Court may well try and determine this Modus by that Law; The Libel being there originally for the Modus: But if touching the Proof of this Modus, as aforeſaid, the difference of proceedings between the two Laws, (one Witneſs being ſufficient at the Common Law, not ſo at the Eccleſiaſtical) be the ground of the Refuſal of the Allegation, then a Prohibition is to be awarded, ſo is 1 R. 3. and 10 H. 7. but if the Eccleſiaſtical Court only proceed to try the Modus, for which the Libel was there, this by Proof may well be there examined. Croke Juſtice, at this time delivered no opinion at all in this Caſe. Afterwards, this Caſe being moved again, Doderidge, If a Parſon p. 129do Libel in the Eccleſiaſtical Court for a Modus, whereas in truth there was no Modus, but only a compoſition of late time between the Parſon and the Pariſhioners, to pay ſo much yearly for Tithes, and not otherwiſe: In this Caſe, becauſe that the Common Law and the Eccleſiaſtical do differ in the point of Preſcription, (Ten years continuance being a good Preſcription by that Law, but not ſo by Ours) in this caſe a Prohibition is grantable. Houghton, A Modus Decimandi is properly to be tried and determined by the Common Law, and not in the Eccleſiaſtical Court, for that theſe two Laws differ in many things, as in point of proof of a Modus, and in the point of Preſcription. Croke, A Special Modus being Libelled for in the Eccleſiaſtical Court, is there to be tried. Doderidge, If the Eccleſiaſtical Court doth refuſe to allow of the Proof, allowable at the Common Law, a Prohibition lies to ſtay proceedings for Tithes there: And where there is a Modus, if they refuſe to pay this, the Parſon may ſue for this Modus in the Eccleſiaſtical Court, and this is to be tried there; But if in ſuch caſe where there is a Modus, if the Parſon will Libel to have his Tithe in kind, and the other ſhews there this Modus, which they will not allow of, a Prohibition lies, and this ſhall be tried by the Common Law. The Court declares, That they would ſee the Suggeſtion, and therefore by the Rule of the Court they were to make their Suggeſtion, and to ſhew the ſame to the Court, as they would ſtand unto it; and in the mean time the Suit in the Eccleſiaſtical Court to be ſtayed.

(44.)Paſch. 9 Jac. C. B. en Ireland, en le Caſe de Commendae, le Roy verſ. Cyprian Horſefall & Rob. Wale. Davis Rep. To conclude this Chapter, it may not be impertinent to enquire, when and how the Canon Law was introduced into this Realm of England; In the Caſe of a Commendam that was Adjudged in Ireland it was obſerved, That after the Biſhop of Rome had aſſumed or tooken upon him to be the Spiritual Prince or Monarch of all the World, he attempted alſo to give Laws to all Nations, as one real Mark or Signal of his Monarchy; but they well knowing, Quod ubi non eſt condendi authoritas, ibi non eſt parendi neceſſitas, did not impoſe their Laws at firſt peremptorily on all Nations without diſtinction, but offered them timide & precario. And therefore he cauſed certain Rules in the firſt place to be collected for the Government of the Clergy only, which he called Decreta, and not Leges vel Statuta; Theſe Decrees were publiſhed in An. 1150. which was during the Reign of King Stephen. And therefore what the Lord Coke obſerves in the Preface to the Eighth part of his Reports, Quod Rogerus Bacon, frater ille perquam Eruditus, in Libro De impedimentis Sapientiae, dicit, Rex quidem Stephanus, allatis Legibus Italiae in Angliam, Publico Edicto prohibuit ne in aliquo detinerentur, may probably be conjectured, to be meant p. 130and intended of thoſe Decrees which were then newly compiled and publiſhed: Yet theſe Decrees being received and obſerved by the Clergy of the Weſtern Churches only (for the Eaſtern Church never received any of theſe Rules or Canons, Kelw. Rep. 7 H. 8. fo. 184) the Biſhop of Rome attempted alſo to draw the Laity by degrees into obedience to theſe Ordinances: and to that purpoſe, in the firſt place he propounds certain Rules or Ordinances for Abſtinence, or days of Faſting, to be obſerved as well by the Laity as the Clergy, which were upon the firſt Inſtitution thereof called by the mild and gentle name of Regationes, as Marſilius Pat. lib. Defenſor. Pacis, par. 2. cap. 23. hath obſerved; and thence, it ſeems, the Week of Abſtinence, a little before the Feaſt of Pentecoſt, was called the Rogation-week, that time of Abſtinence being appointed at the beginning by that Ordinance which was called Rogatio, and not Praeceptum vel Statutum. Now when the Laity out of their devotion had received and obeyed theſe Ordinances of Abſtinence, then the Biſhop of Rome proceeds further (De una praeſumptione ad aliam tranſivit Romanus Pontifex, as Marſil. Pat. there ſays) and made many Reſcripts and Orders per Nomen Decretalium, which were publiſhed in the year 1230. which was in the Fourteenth year of King H. 3. or thereabout. Vid. Matth. Par. Hiſt. mag. 403. and theſe were made to bind all the Laity, and Sovereign Princes as well as their Subjects, in ſuch things as concerned their Civil and Temporal Eſtates; As that no Lay-man ſhould have the Donation of an Eccleſiaſtical Benefice: That no Lay-man ſhould marry within certain Degrees, out of the degrees limited by the Levitical Law: That all Infants born before Marriage, ſhould be adjudged after Marriage Legitimate, and capable of Temporal Inheritance: That all Clerks ſhould be exempt from the Secular power; and others of the like nature. But theſe Decretals being publiſhed, they were not entirely and abſolutely received and obeyed in any part of Chriſtendom, but only in the Pope's Temporal Territory, which by the Canoniſts is called, Patria obedientiae. But on the other hand, many of thoſe Canons were utterly rejected and diſobeyed in France and England, and other Chriſtian Realms, which are called Patriae Conſuetudinariae; As the Canon which prohibited the Donation of Benefices per manum Laicam was ever diſobeyed in England, France, the Kingdom of Naples, and divers other Countries and Commonwealths; And the Canon, to make Infants Legitimate that were born before Marriage, was ſpecially rejected in England, when in the Parliament held at Merton, omnes Comites & Barones una voce reſponderunt, Nolumus Leges Angliae mutari, quae hucuſque uſitatae ſunt, &c. And the Canon, which exempts Clerks from the Secular power, was never fully obſerved in any part of Chriſtendom. p. 131Kelw. 7 H. 8. 181. b. which is one infallible Argument, That theſe Ordinances had not their force by any Authority that the Court of Rome had to impoſe Laws on all Nations without their conſent, but by the approbation of the people which received and uſed them. For by the ſame reaſon whereby they might reject one Canon, they might reject all the other. Vid. Bodin. lib. 1. de Rep. cap. 8. where he ſaith, That the Kings of France, on the erection of all Univerſities there, have declared in their Charters, that they would receive the Profeſſion of the Civil, and Canons, to uſe them at their diſcretion, and not to be obliged by theſe Laws. But as to thoſe Canons which have been received, accepted, and uſed in any Chriſtian Realm or Common-wealth, they by ſuch acceptation and uſage have obtained the force of Laws in ſuch particular Realm or State, and are become part of the Eccleſiaſtical Laws of that Nation; And ſo thoſe which have been embraced, allowed, and uſed in England, are made by ſuch allowance and uſage, part of the Eccleſiaſtical Laws of England; By which the interpretation, diſpenſation, or execution of theſe Canons, being become Laws of England, doth appertain ſole to the King of England, and his Magiſtrates within his Dominions, and he and his Magiſtrates have the ſole Juriſdiction in ſuch caſes, and the Biſhop of Rome hath nothing to do in the interpretation, diſpenſation, or execution of thoſe Laws in England, although they were firſt deviſed in the Court of Rome; No more than the Chief Magiſtrate of Athens or Lacedemon might claim Juriſdiction in the Ancient City of Rome, for that the Laws of the XII. Tables were thither carried and imported from thoſe Cities of Greece; and no more than the Maſter of New-Colledge in Oxford, ſhall have Command or Juriſdiction in Kings-Colledge of Cambridge, for that the private Statutes whereby Kings-Colledge is governed, were, for the moſt part, borrowed and taken out of the Foundation-Book of New-Colledge in Oxford: And by the ſame reaſon the Emperour may claim Juriſdiction in Maritime cauſes within the Dominions of the King of England, for that we have now for a long time received and admitted the Imperial Law for the determination of ſuch Cauſes. Vid. Cawdries Caſe, Co. par. 5. and Kelw. Rep. 184. a. Now when the Biſhop of Rome perceived that many of his Canons were received and uſed by divers Nations of Chriſtendom, he under colour thereof claimed to have Eccleſiaſtical Juriſdiction in every Realm and State where theſe Canons were received, and ſent his Legates with ſeveral Commiſſions into divers Kingdoms, to hear and determine Cauſes according to theſe Canons: which Canons although neither the Pope nor his Miniſters, at the firſt venting and uttering thereof, dared to call Laws, Ne committerent crimen Laeſae Majeſtatis in Principes as Mar…il. Pat. lib. Defenſor. pacis, par. 2. p. 132cap. 23. obſerves) who alſo ſays, That theſe Canons being made by the Pope, Neque ſunt humanae Leges, neque divinae, ſed documenta quaedam & Narrationes; yet when he perceived that theſe Canons were received, allowed, and uſed in part by ſeveral Nations, he compiled them into Volumes and called them Jus Canonicum, and Ordained that they ſhould be read and expounded in publick Schools and Univerſities, as the Imperial Law was read and expounded, and commanded that they ſhould be obſerved and obeyed by all Chriſtians on pain of Excommunication, and often endeavoured to put them in execution by Coercive power, and aſſumed to himſelf the power of interpreting, abrogating, and diſpenſing with thoſe Laws in all the Realms of Chriſtendom at his pleaſure, ſo that the Canoniſts aſcribe to him this prerogative, Papa in omnibus jure poſitivis, & in quibuſdam ad jus divinum pertinentibus, diſpenſare poteſt, quia dicitur omnia Jura habere in Scrinio pectoris ſui, quantum ad interpretationem & diſpenſationem. Lib. 6. de Conſt. cap. licet. About the time of An. 25. Ed. 1. Simon a Monk of Walden began to read the Canon Law in the Univerſity of Cambridge. vid. Stow and Walſingham in that year. Alſo the Manuſc. libr. 6. Decretal. in New-Colledge Library at Oxford hath this Inſcription in the Front, Anno Domini 1298. which was in the year 26 Ed. 1. 19. Novembr. in Eccleſia Fratrum Praedicator. Oxon. fuit facta publicatio lib. 6. Decretal. whereby it appears when it was that the Canon Law was introduced into England. But the Juriſdiction which the Pope by colour thereof claimed in England was a meer Uſurpation, to which the Kings of England from time to time made oppoſition, even to the time of King H. 8. And therefore the Eccleſiaſtical Law which Ordained, That when a man is created a Biſhop all his Inferiour Benefices ſhall be void, is often ſaid in the Biſhop of St. David's Caſe, in 11 H. 4. to be the Ancient Law of England. And 29 Ed. 3. 44. a. in the Caſe of the Prebend of Oxgate, it is ſaid, That though the Conſtitution which ouſts Pluralities began in the Court of Rome, yet a Church was adjudged void in the Kings Bench for that cauſe or reaſon; whereby it appears, That after the ſaid Conſtitution was received and allowed in England, it became the Law of England: Yet all the Eccleſiaſtical Laws of England were not derived from the Court of Rome; for long before the Canon Law was authorized and publiſhed in England (which was before the Norman Conqueſt) the Ancient Kings of England, viz. Edga…. Aethelſtan, Alfred, Edward the Confeſſor, and others, have with the Advice of their Clergy within the Realm, made divers Ordinances for the government of the Church of England; and after the Conqueſt, divers Provincial Synods have been held, and many Conſtitutions have been made in both Realms of England and Ireland; All which are part of our p. 133Eccleſiaſtical Laws at this day. Vid. Le Charter de William le Conqueror. Dat. An. Dom. 1066. irrot. 2 R. 2. among the Charters in Archiv. Turris Lond. pro Decano & Capitulo Lincoln. Willielmus, Dei gratia, Rex Anglorum, &c. Sciatis, &c. Quod Epiſcopales Leges quae non bene, nec ſecundum Sanctorum Canonum praecepta, uſque ad mea tempora in Regno Angliae fuerunt, Communi Concilio Epiſcoporum meorum, & caeterorum Epiſcoporum, & omnium Principum Regni mei, emendandas judicavi, &c. See alſo Girald. Cambrenſ. lib. 2. cap. 34. in the time of King H. 2. a Synod of the Clergy of Ireland was held at the Caſtle, wherein it was Ordained, Quod omnia divina, juxta quod Anglicana obſervat Eccleſia, in omnibus partibus Hyberniae amodo tractentur. Dignum enim & juſtiſſimum eſt, ut ſicut Dominum & Regem ex Anglia divinitus ſortita eſt Hybernia, ſic etiam exinde vivendi formam accipiant meliorem. But the diſtinction of Eccleſiaſtical or Spiritual Cauſes from Civil and Temporal Cauſes, in point of Juriſdiction, was not known or heard of in the Chriſtian World for the ſpace of 300 years after Chriſt; For the cauſes of Teſtaments, of Matrimony, of Baſtardy, and Adultery, and the reſt, which are called Eccleſiaſtical or Spiritual Cauſes, were meerly Civil, and determined by the Rules of the Civil Law, and ſubject only to the Juriſdiction of the Civil Magiſtrate; But after the Emperours had received the Chriſtian Faith, out of a zeal they had to honour the learned and godly Biſhops of that time, they ſingled out certain ſpecial Cauſes, wherein they granted Juriſdiction unto the Biſhops, viz. in Cauſes of Tithes, becauſe they were paid to men of the Church; in Cauſes of Matrimony, becauſe Marriages were for the moſt part ſolemnized in the Church; in Cauſes Teſtamentary, becauſe Teſtaments were many times made in extremis, when Church-men were preſent, giving Spiritual comfort to the Teſtator, and therefore were thought the fitteſt perſons to take the Probats of ſuch Teſtaments. Howbeit theſe Biſhops did not then proceed in theſe Cauſes according to the Canons and Decrees of the Church (for the Canon Law was not then known) but according to the Rules of the Imperial Law,The Caſe of Praemunire in Davis Rep. fo. 97. as the Civil Magiſtrate did proceed in other Cauſes; ſo that the Primitive Juriſdiction in all theſe Cauſes was in the Supream Civil Magiſtate, and though it be now derived from him, yet it ſtill remaineth in him as in the Fountain.