Abridgment of Ecclesiastical Laws, Treatise · Chapter 10

Abridgment of Ecclesiastical Laws · Treatise · Chapter 10

p. 80CHAP. X.

Of Dioceſan Chancellors, Commiſſaries, Officials, and Conſiſtories.

1. A Deſcription of the Office of ſuch Chancellors, and how they differ from the Biſhops Commiſſaries.

2. The Antiquity and neceſſary uſe of ſuch Chancellors.

3. What the Canons Eccleſiaſtical require touching their Office.

4. Whether a Divine, that is not a Civilian, may be a Chancellour?

5. Where, and before whom the Biſhops Conſiſtories are held.

6. What is meant or intended by the word Conſiſtory.

7. The great Antiquity of the Biſhops Conſiſtories.

8. That Antiquity further confirmed and proved.

9. The difference between Conſiſtorium and Tribunal.

10. Incidents to the Chancellors Office, as he is Oculus Epiſcopi.

11. A ſhort digreſſion touching Adminiſtrators.

12. The Laws and Canons touching Summoners.

13. The Conſtitutions Provincial, what proviſion there touching this Office of Summoners.

14. A Judgment at Common Law in Action on the Caſe againſt an Apparitor or Summoner, for Citing a man wrongfully into the Eccleſiaſtical Court.

15. What a Commiſſary is; how to be qualified; with the Precincts of his Juriſdiction.

16. Whether a Commiſſary may Cite perſons of ſeveral Pariſhes to appear at his Viſitation-Court?

17. A Caſe at Common Law touching a Commiſſary made by a Dean.

18. Whether a meer Lay-perſon may be a Commiſſary or Official; Other points in Law touching that Office; and the Grant thereof.

19. Sufficiency or Inſufficiency, or other defects in Chancellors, Commiſſaries, &c. properly cognizable not in the Temporal, but Eccleſiaſtical Courts.

20. The Office of Chancellorſhip (as to the Right of it) is held to be of Temporal, but (as to the Exerciſe thereof) of Eccleſiaſtical cognizance.

p. 8121. Whether the Offices of Chancellor, Regiſter, &c. in Eccleſiaſtical Courts, be within the Statute of 5 Ed. 6.

(1.) THe Chancellor of a Dioceſs is a Church-Lawyer, Stat. 32 H. 8. cap. 15.or the Biſhops-Lawyer, or that perſon who is Commiſſionated to be aiding and aſſiſting to the Biſhop in his Juriſdiction, not confined to any one place of the Dioceſs, nor limited (as the Biſhops Commiſſaries are) only to ſome certain cauſes of the Juriſdiction; but every where throughout the whole Dioceſs ſupplying the Biſhops abſence, in all matters and cauſes Eccleſiaſtical within his Dioceſs. By the Statute of 37 H. 8. c. 17. a Doctor of the Civil Law lawfully deputed, may exerciſe all Eccleſiaſtical Juriſdiction, and the Cenſures thereof. By this Chancellor the Biſhop within his Dioceſs keeps his Court according to the Eccleſiaſtical Laws, in all matters pertaining to his Juriſdiction, or otherwiſe relating more immediately to the Church or Government of the Clergy. As Biſhops in their Epiſcopal audience have had in all Ages the cognizance of all matters Eccleſiaſtical, as well Civil as Criminal, within the Juriſdiction of their Dioceſs: ſo they have ever had to that end their Chancellors, whom the Law calls Eccleſiecdici or Epiſcoporum Ecdici, perſons experienced in the Civil and Canon Laws, to aſſiſt them in matters of Judgment; and thoſe whom we now call the Biſhops Chancellours, are the very ſelf ſame perſons in Office, that anciently did exerciſe Eccleſiaſtical Juriſdiction under Biſhops, and were called Eccleſiecdici. Papias per Gothofred in L. omnem, C. de Epiſc. & Cler. & in §. praeterea, ibid. Dr. Ridl. View, par. 2. cap. 2. ſect. 3. Who (foraſmuch as they have with them the Biſhops Authority every where within the Dioceſs for matters of Juriſdiction, and in that the Biſhops and They make but one Conſiſtory) are called the Biſhop's Vicars General, both in reſpect of their Authority, which extendeth throughout the whole Dioceſs, as alſo to diſtinguiſh them from the Commiſſaries of Biſhops, whoſe Authority, as it is reſtrained only to ſome certain place of the Dioceſs, ſo alſo to ſome certain cauſes of the Juriſdiction, limited unto them by the Biſhops; for which reaſon the Law calls them Officiales Foraneos, quaſi Officiales aſtricti cuidam foro Dioeceſeos tantum. Dr. Ridl. ibid.

(2.) Dr. Ridley in his View of the Civil and Eccleſiaſtical Law ſays, that Chancellors of Dioceſſes are nigh of as great Antiquity as Biſhops themſelves, and are ſuch neceſſary Officers to Biſhops, that every Biſhop muſt of neceſſity have a Chancellor; and that if any Biſhop ſhould ſeem to be ſo compleat within himſelf, as not to need a Chancellor, yet the Archbiſhop of the Province, in caſe of refuſal, may put a Chancellor, on him, in that the Law preſumes the Government of a whole Dioceſs a matter of more weight, than can be well ſuſtained by one p. 82perſon alone; and that although the Nomination of the Chancellour is in the Biſhop, yet his Authority is derived from the Law. Hoſtienſ. Sum. de Offic. Vicar. nu. 2. For which reaſon the Law underſtands him as an Ordinary, as well as the Biſhop. Hoſtienſ. ibid. It is moſt probable, that the multiplicity and variety of Eccleſiaſtical Cauſes introduced the uſe and Office of Chancellors originally; for after that Princes had granted to Eccleſiaſtical perſons their Cauſes and their Conſiſtories, and Circumſtances varying theſe Cauſes into a more numerous multiplication, than were capable of being defined by like former Preſidents, neceſſity call'd for new Deciſions, and they for ſuch Judges as were experienced in ſuch Laws as were adapted to matters of an Eccleſiaſtical Cognizance; which would have been too prejudicial an Avocation of Biſhops from the exerciſe of their more Divine Function, had not the office of the Chancellor in determining ſuch matters, been an expedient to prevent the ſaid prejudice or inconvenience.

(3.) By the Conſtitutions and Canons EccleſiaſticalaaEd…. 1603. Can. …19, 120 121. 123, …24. 127. it is Ordered, That upon the days of the Viſitation every Chancellor, Archdeacon, Commiſſary and Official, as alſo at the ordinary time when Church-wardens are Sworn, ſhall deliver them ſuch Books of Articles as whereon to ground their Preſentments. Alſo, that they ſhall not ſuffer any to be cited into Eccleſiaſtical Courts by any General proceſs of Quorum Nomina; nor the ſame perſon to be cited into ſeveral Eccleſiaſtical Courts for one and the ſame Crime, for which end the Chancellour and Archdeacon are within one month next after the Biſhops Viſitation, mutually to certifie each other under their Hands and Seals, the Names and Crimes of all ſuch as were Preſented in the ſaid Viſitation. Nor ſhall any Chancellor, or other Eccleſiaſtical Judge, ſuffer any Judicial Act to be ſped otherwiſe than in open Court, or in preſence of the Regiſter, or his Deputy, or other perſon by Law allowed to ſpeed the ſame; nor ſhall have (without the Biſhops conſent) any more Seals of Office than one. Nor ſhall any man be admitted a Chancellor, or to exerciſe any Eccleſiaſtical Juriſdiction, under the age of 26 years, and learned in the Civil and Eccleſiaſtical Laws, and is at leaſt a Maſter of Arts, or Bachelor of Law, and ſhall firſt have taken the Oath of Supremacy in the Biſhops preſence,Edit. 1562. or in open Court, and have ſubſcribed the Articles of Religion, and ſwear that to the utmoſt of his underſtanding he will deal uprightly and juſtly in his Office, without reſpect, favour, or reward.

(4.) Sutton Chancellor of the Biſhop of Glouceſter moved for a Prohibition to ſtay a Suit before the Commiſſioners Eccleſiaſtical, for that Articles were there exhibited againſt him, becauſe he being a Divine, and having a Rectory with Cure of Souls, and never p. 83brought up in the Science of the Civil or Canon Laws, or having any Intelligence in them, took upon him the Office of the Chancellor of the Biſhop of Glouceſter, whereas there were divers Canons and Eccleſiaſtical Conſtitutions, and alſo directions from the late King James, and from the King that now is, That none ſhould be admitted to have thoſe Offices of Chancellorſhip to a Biſhop, unleſs he were inſtructed and learned in the Canon and Civil Laws; becauſe divers Caſes triable in the ſaid Court are of weight, and the Judges there ought to have knowledge of the Laws, otherwiſe they cannot adminiſter Right to the Kings Subjects. Upon theſe Articles Mr. Sutton being examined, confeſſed that he was a Divine, and had a Spiritual Living, and that the Office of the Chancellorſhip of the Biſhop is grantable for life, and that ſuch a Biſhop of Glouceſter had granted to him the Office for his life, which the Dean and Chapter had Confirmed, whereby he had a Freehold therein, and ought to enjoy it during his life. And that notwithſtanding this Anſwer they intended to proceed againſt him, wherefore he prayed to have a Prohibition, but the Court denied it; for if he be a perſon unskilful in theſe Laws, and by Law ought not to enjoy it, they may peradventure examine that; for although a Lay-perſon, by his Admiſſion and Inſtitution to a Benefice hath a Freehold, yet he may be ſued in the Spiritual Court, and deprived for that Cauſe; but if he hath wrong, he may peradventure by Aſſize try it; therefore a Prohibition was deniedbbHill. 2 Car. C. B. Sutton's Caſe. Cro. Rep. Vid. dict. Caſe in Latch. Rep..

(5.) The Conſiſtory Court of each Archbiſhop, and every Biſhop of every Dioceſs within this Realm, is holden before the Biſhops Chancellor in the Cathedral Church,Vid. Litt. Sect. 133. 136. 648. or before his Commiſſary in places of his Dioceſs far remote and diſtant from the Biſhops Conſiſtory, ſo as the Chancellor cannot call them to the Conſiſtory with any conveniency or without great travel and vexation;24 H. 4. c. 12. for which reaſon ſuch Commiſſary is called Commiſſarius Foraneus. From theſe Conſiſtories the Appeal is to the Archbiſhop of either Province reſpectively.

(6.) By this word [Conſiſtory] is commonly underſtood that place or Eccleſiaſtical Court of Juſtice, held by the Biſhops Chancellor or Commiſſary in his Cathedral Church or other convenient place of his Dioceſs, for the hearing and determining of matters and Cauſes of Eccleſiaſtical cognizance, happening within that DioceſsccVid. Litt. ibid. Vid. Co. Inſt. p. 4. fol. 338.. But when this word refers to the Province of Canterbury, then the chief and moſt ancient Conſiſtory is the Arch-biſhops high Court of Arches, as the Court of Appeal from all other Inferiour Conſiſtories within the ſaid Province. The ſame word ſometimes refers to a Synod or Council of Eccleſiaſtical perſons conven'd together, or to a Ceſſion or Aſſembly of Prelates; p. 84but moſt uſually to the Spiritual Court for the deciding of matters of Eccleſiaſtical cognizance. The word Conſiſtory (Conſiſtorium) is ſuppoſed to be borrowed of the Italians, or rather Lombards, ſignifying as much as (Praetorium) or Tribunal, being a word utriuſque juris, and frequently uſed for a Council-houſe of Eccleſiaſtical perſons, or the place of Juſtice in the Court Chriſtian ddC…wel. Interp. verb. Conſiſtory..

(7.) The Conſiſtories of Archbiſhops and Biſhops are ſuppoſed to begin within this Realm in the time of William the Conquerour eeCo. Inſtit. par. 4. cap. 53. fo. 259. & cap. 74. fo. 338.; which ſeems very conjecturable from that Charter of his, which Sir Ed. Coke in the fourth part of his Inſtitutes mentions to have found Enrolled, 2 R. 2. nu. 5.ffPro Decano & Capitulo Eccleſiae …eat. Mariae de Lincoln.. Which Charter, and Record of great Antiquity, aſſerting not only the Epiſcopal Conſiſtories, but alſo the Eccleſiaſtical Juriſdiction, it cannot be ſuppoſed but that it ought to be recited here in terminis per extenſum, viz.

Willielmus gratia Dei Rex Anglorum, Comitibus, Vicecomitibus & omnibus Francigenis, & quibus in Epiſcopatu Remigii ggThis Remigius was the firſt Biſhop of Lincoln; th… See being removed from Dorcheſter to Lincoln.terras habentibus, ſalutem. Sciatis vos omnes, & caeteri mei Fideles qui in Anglia manent, quod Epiſcopales Leges, quae non bene, nec ſecundum Sanctorum Canonum Praecepta uſque ad mea tempora in Regno Anglorum fuerunt, Communi Concilio & Concilio Archiepiſcoporum meorum & caeterorum Epiſcoporum, & Abbatum, & omnium Principum Regni mei Emendandas judicavi. Propterea Mando, & Regia authoritate Praecipio, ut nullus Epiſcopus vel Archidiaconus de Legibus Epiſcopalibus amplius in Hundretto hhIn Turno, ita Co. ubi ſup.Placita teneant, nec cauſam, quae ad Regimen animarum pertinet, ad Judicium Secularium hominum adducant; ſed quicunque ſecundum Epiſcopales Leges de quacunque cauſa vel culpa interpellatus fuerit, ad locum, quem ad hoc Epiſcopus elegerit, & nominaverit, veniat, ibique de cauſa ſua reſpondeat, & non ſecundum Hundrettum iiThis is not intended of the Hund…ed Court, but that in theſe times the Sheriff did h…ld his Tourn… per H…dreda. Ita Co. ubi ſ…pr. vid. Mag. Chart. cap 35. & Expoſi…. Co. thereon., ſed ſecundum Canones & Epiſcopales Leges Rectum Deo & Epiſcopo ſuo faciat. Si vero aliquis per ſuperbiam elatus ad Juſtitiam Epiſcopalem venire non voluerit, vocetur ſemel, & ſecundo, & tertio; quod ſi nec ſic ad emendationem venerit, Excommunicetur: &, ſi opus fuerit, ad hoc vindicand' fortitudo & Juſtitia Regis vel Vicecomitis adhibeatur: Ille autem qui vocatus ad Juſtitiam Epiſcopi venire noluit, pro unaquaque vocatione legem Epiſcopalem emendabit: hoc etiam Defendo, & mea authoritate interdico, ne ullus Vicecom. aut praepoſitus, aut miniſter Regis, nec aliquis Laicus homo de Legibus quae ad Epiſcopum pertinent ſe intromittat: nec aliquis Laicus homo alium hominem ſine Juſtitia Epiſcopi ad Judicium adducat; Judicium vero in nullo loco portetur niſi in Epiſcopali Sede, aut in illo loco quem ad hoc Epiſcopus conſtituerit

p. 85(8.) For the Confirmation of this Charter Sir Ed. Coke in the foreſaid part of his Inſtitutes refers us to the Regiſter of the Biſhop of London. Willielmus Dei gratia Rex Anglorum R. Bainardo, & S. de magna Villa P. de Vabines, caeteriſque meis Fidelibus de Eſſex & de Hertfordſhire, & de Middleſex, Salutem. Sciatis vos omnes, &c. In which Charter the Tenor of the foreſaid Charter is recited word by word in Engliſh. The like Charter he alſo there ſays is in the Book of Charters of the Archbiſhop of Canterbury. Whereby it is moſt evident, that the Biſhops Conſiſtories are of great Antiquity, and that they were erected when Cauſes Eccleſiaſtical were removed from the Tourne (which is a Court of Record holden before the Sheriff) to the ConſiſtorykkCo. Inſtit. 4 par. cap. 53. fo. 260.. So that this Law, made by the Conqueror, ſeems (as Mr. Blount in his Nomo-Lexi…on on this word well obſerves) to give the Original of the Biſhops Conſiſtory, as it now ſits with us diſtinct and divided from the Hundred or County-Court, wherewith it ſeems probable, in the time of the Saxons, to have been joyn'dllVid. Seld. Hiſt. of Tithes, p. 413, 414..

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

(10.) This Chancellor of a Dioceſs, as he is Oculus Epiſcopi, ought to have an eye into all parts of the Dioceſs, and hath immediately under the Ordinary Juriſdiction of all matters Eccleſiaſtical within the ſame; not only for reformation of Manners, and puniſhment of Enormities of a Spiritual nature by Eccleſiaſtical Cenſures; but alſo in Cauſes Matrimonial, and Teſtamentary as to the Probat of Wills, and granting Letters of Adminiſtration of the Goods of a perſon dying Inteſtate, where there are not Bona Notabilia; In which caſe the Will ſhall be proved, or Adminiſtration granted by the Prerogative of the Archbiſhop: And wherever there is an Adminiſtration duly granted, there the Adminiſtrator doth almoſt in all points repreſent the perſon of the Inteſtate as legally, as any Executor can the perſon of his Teſtator Teſtamentarily. For this Adminiſtrator, in conſtruction of the Common Law, is that perſon to whoſe truſt, care, conduct, and management the Goods and Chattels, Real and Perſonal, of the Inteſtate are committed by the Ordinary, or ſuch other as under him is duly Authorized to grant the ſame. But under this Notion or Appellation of Adminiſtrator, neither the Civil nor the Canon Law p. 86knows any ſuch Officer; only they take notice of Adminiſtrators as Governours of Perſons, Places, or Things. Decret. Can. 23. q. 5. cap. 26. & Extra. Com. cap. 11. And it is moſt probable, that the Common Law might (as ſome conceive) take its light, as to this Officer under this notion as now practicable with us, from the Conſtitution of the Emperour Leo. I. 28. nulli licere, C. de Epiſc. & Cler. whereby it is Ordained, That the Biſhop ſhall take care to ſee ſuch Legacies duly performed, as are bequeathed for the Redemption of Captives, in caſe the Teſtator appoint not one to execute his Will in that particular. This power given to the Ordinary of making Adminiſtrators in caſe of Inteſtation, and of Authorizing them to act as Executors, is very ancient by the Statute-LawmmWeſtm. 2. An. 13 Ed. 1. cap. 19. & 31 Ed. 3. c. 1…. & 21 H. 8. cap. 5.. And if any Ordinary, Chancellor, &c. having power by the Act of 21 H. 8. to grant the Adminiſtration of the goods of him that dieth Inteſtate, to the Widow or next of Kin, ſhall take any Reward for the preferring any perſon before another to the Adminiſtration, it is Bribery nnCo. I…ſt. par. 3. c. 68. Vid. 2 R. 2. Rot. Parl. nu. 46..

(11.) A lawful Adminiſtrator may render his own Goods liable to the Inteſtates Debts either by a Devaſtavit, or by a Falſe Plea Judicially; and his Executor or Adminiſtrator ſhall not ſucceed him in the Adminiſtration to his Inteſtate (unleſs qualified to require Adminiſtration of both Inteſtates) but the Adminiſtration of the firſt Inteſtates goods is de novo to be committed to his next of Kin, as de bonis non Adm. And if a Stranger by any Act make himſelf Executor de ſon tort, the Creditors and Legataries may not ſue him as Adminiſtrator, albeit it be an Adminiſtration in Fact, but muſt ſue him as Executor in his own wrong; who notwithſtanding is not any further liable, than to the value of the Deceaſed's Goods, as Aſſets in his hands. But in caſe the Ordinary ſhall, without granting any Letters of Adminiſtration, make his Letters Ad Colligendum, in that caſe he makes himſelf liable to Actions pro tanto, as if himſelf were actually poſſeſſed of the Goods of the deceaſed. And here Note, That Funeral expences, according to the degree and quality of the Deceaſed, are to be allowed of his Goods before any debt or duty whatſoever, for that is Opus pium, or Charitativum ooCo. Inſt. par. 3. cap. 97..

(12.) And as in theſe Conſiſtories there is a great variety of Eccleſiaſtical Cauſes heard and determined, ſo alſo the Officers belonging thereto are many, and of various qualities and degrees, whereof ſome ſeem to be magis principales, others minus principales, but others (in the popular account) as meer Animalia tantum Rationalia, by whom they underſtand Apparitors, who in truth are Summoners, and whoſe Character in Law is this, viz. He is that perſon, whoſe employment is to ſerve ſuch Proceſſes as iſſue out of the p. 87Spiritual or Eccleſiaſtical Courts, and as a Meſſenger to Cite Offenders and others to make their appearance therein as occaſion ſhall require. By the Statute of 21 H. 8. c. 5. as alſo by the 138th Canon of the Eccleſiaſtical Conſtitutions, Apparitors are called Summoners or Sumners; by which Canon the Abuſes aud Grievances pretended to be practiced by ſuch Summoners or Apparitors are ſufficiently redreſſed: For as the multitude of them is thereby abridged and reſtrained by Decreeing and Ordaining, That no Biſhop or Archdeacon, or their Vicars or Officials, or other inferiour Ordinaries, ſhall depute or have more Apparitors to ſerve their Juriſdictions reſpectively, than either they or their Predeceſſors were accuſtomed to have Thirty years before the publiſhing the ſaid Eccleſiaſtical Conſtitutions: So it is likewiſe provided by the ſaid Canon, That the ſaid Apparitors ſhall by themſelves faithfully execute their Offices, and not by any colour or pretence whatſoever cauſe or ſuffer their Mandats to be executed by any Meſſengers or Subſtitutes, unleſs upon ſome good cauſe, to be firſt allowed and approved by the Ordinary of the place. It is alſo further Provided by the ſaid Canon, That they ſhall not take upon them the Office of Promoters or Informers for the Court, nor ſhall exact more or greater Fees than are preſcribed by the 135th Canon of the ſaid Eccleſiaſtical Conſtitutions. And in caſe either the number of Apparitors deputed ſhall exceed the aforeſaid Limitation, or any of them offend in any of the Premiſſes, the perſons deputing them (if they be Biſhops) ſhall upon Admonition of their Superiour, diſcharge the perſons exceeding the Number ſo limited as aforeſaid: But if they were deputed by Inferiour Ordinaries, ſuch Ordinaries ſhall be ſuſpended from the execution of their Office, until they have diſmiſs'd the ſupernumerary Apparitors by them ſo deputed; and the parties themſelves ſo deputed ſhall for ever be removed from the Office of Apparitors: And in caſe being ſo diſmiſs'd and removed, they do not deſiſt from the execution of their ſaid Offices, they are by the firſt ſaid Canon to be proceeded againſt and puniſhed by Eccleſiaſtical Cenſures as perſons contumacious to the Juriſdiction. And finally, if upon experience the number of the ſaid Apparitors be too great in any one Dioceſs, in the judgment of the Archbiſhop of Canterbury for the time being; in that caſe he is by the ſaid Canon impower'd to abridge them to ſuch a number, as to himſelf ſhall ſeem meet and expedient.

An Apparitor came to the Church of a Parſon,R…yner and Parkers Caſe▪ More's Rep. and ſaid to him, He is to pay Tenths to ſuch a one at ſuch a place, four miles diſtant from the Church, to whom the Parſon did not pay them, and thereupon the Biſhop Certified, That he refuſed to pay them according to the Statute of 26 H. 8. It was Reſolved, The Demand p. 88was not according to that Statute, and the Summons to pay them not according to the Statute, for the Demand ought to have been by one who hath authority to receive them, which the Summoner had not; And they held the Demand not good, although the Biſhop certified it was duly made. And in the Caſe between the Queen and Blanch it was Reſolved, That the Certificate of the Biſhop, that the Incumbent refuſed to pay his Tenths, is not Peremptory, but Traverſable; and that the Demand of the Tenths muſt be at the houſe of the Incumbent, and the Refuſal there. More's Rep. 1225.

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

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

(14.) Action upon the Caſe; For that the Defendant being an Apparitor under the Biſhop of Exeter, maliciouſly and without colour or cauſe of ſuſpicion of Incontinency, of his own proper malice, procured the Plaintiff Ex Officio, upon pretence of Fame of Incontinency with one Edith (whereas there was no ſuch Fame, not juſt cauſe of Suſpicion) to be cited to the Conſiſtory Court of Exeter, and there to be at great charges and vexation, until he was cleared by Sentence, which was to his great diſcredit, and cauſe of great Expences and Loſſes, for which, &c. upon Not guilty pleaded, and found for the Plaintiff it was moved by Aſhley, Serjeant, in Arreſt of Judgment, That in this Caſe an Action lies p. 89not: For he did nothing but as an Informer, and by virtue of his Office. But all the Court (abſente Richardſon) held, That the Action well lies: For it is alledged, That he falſo & malitioſe cauſed him to be Cited, upon pretence of Fame where there was no offence committed: And avers, That there was not any ſuch Fame; ſo as he did it maliciouſly, and of his own head, and cauſed him to be unjuſtly vexed, which was to raiſe gain to himſelf; whereupon they conceived, That he being found guilty for it, the Action well lies; And therefore Rule was given to enter Judgment for the Plaintiff, unleſs other cauſe was ſhewn. And upon a ſecond motion, Richardſon Ch. Juſtice being preſent, Judgment was given for the PlaintiffppHill. 7. Car. rot. 1147. B. R. Carlion verſ. Mill. Cro. Rep.. The Conſiſtory of the Biſhop may in ſome Caſes enjoyn Penance: Where Penance is enjoyned, there may be Commutation; but there may not be Commutation for Penance, where none is enjoyned. Commutation for Penance agrees with the Cuſtomes uſed in the Eccleſiaſtical Law, juſtified in the Common Law, in the Statute of Circumſpecte agatis in the time of Ed. 1. and Articuli Cleri in the time of Ed. 2. Vid. Mich. 21. Jac. B. R. Dr. Barker's Caſe in Camera Stellata. Roll's Rep.

(15.) Commiſſary [Commiſſarius] is a Title of Eccleſiaſtical Juriſdiction, adapted to ſuch one as doth exerciſe the ſame in ſuch remote places of the Dioceſs, and at ſuch diſtance from the Biſhops chief Conſiſtory, as that his Chancellor cannot without too great a prejudice conveniently call the Subjects to the ſame. The duty of ſuch Commiſſary or Officialis F…ranei, is to officiate the Biſhops Juriſdiction in the remoter parts of the Dioceſs, or in ſuch Pariſhes as are the Biſhop's peculiar, and exempt from the Archdeacon's Juriſdiction. The Authority of the Commiſſaries of Biſhops is only in ſome certain place of the Dioceſs, and ſome certain cauſes of the Juriſdiction, limited unto them by the Biſhops; for which reaſon the Law calls them Officiales Foraneos, quaſi Officiales aſtricti cuidam foro Dioeceſeos tantum: Gloſſ. in Clem. de Reſcript. And by the Canons and Conſtitutions Eccleſiaſtical, no perſon may be a Commiſſary or Official under the Age of 26 years, being at leaſt a Maſter of Arts or Bachelor of LawqqCan. 127.. Yet in the Argument of Buries Caſe for a Divorce, the 5 Rep. 98. there was cited 35 Eliz. B. R. rot. 605. That if a Lay-man be made a Commiſſary by the Biſhop, it is good, until it be undone by Sentence; although that the Canon ſays, That he ought to be a Doctor or a Bachelor of Divinity. But 21 H. 8. hath limited, That a Doctor of the Civil Law may be a CommiſſaryrrBurye's Caſe. Noy Rep..

(16.) Where a Commiſſary, citing many perſons of ſeveral Pariſhes to appear at his Viſitation-Court, Excommunicated them for not Appearing, a Prohibition was granted, becauſe the Ordinary hath not power to cite any to that Court, but the Church-Wardens p. 90and Sides-men, and thoſe he may Impannel, and give Articles to them, for to enquire as the Juſtices of Aſſize. Vid. N. B. 41. ssVid. Noy Rep. poſt Caſe Coke verſ. Wall..

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

(18.) In Walker's Action upon the Caſe againſt Sir John Lambe, For diſturbance of the Plaintiff in exerciſing of the Officialty of the Archdeaconry of Leiceſter, granted by the Archdeacon of Leiceſter, and of the Office of Commiſſary of the Biſhop of Lincoln. Upon Not guilty pleaded a ſpecial Verdict was found, That there were Ancient offices granted by,Whether the Office of a Commiſſary may be granted to a Lay-perſon. &c. and Offices of Judicature always granted to one perſon for life until 1609, and in 30 Eliz. ſo granted to Dr. Chippindale, and after in 1609 granted to him and one Ed. Clerk for their Two lives, no Surrender being actually made by Dr. Chippendale. Afterwards, 1614 both Offices were granted, the one by the Archdeacon, the other by the Biſhop to Sir Jo. Lambe, and to the ſaid Ed. Clerk, and theſe Grants confirmed by the Dean and Chapter; That in An. 1622. Dr. Chippendale died, and afterwards the Archdeacon who granted that Office, and the Biſhop who granted the Office of Commiſſary, died; and the Biſhop of Lincolne who now is, and the now Archdeacon, by ſeveral Patents granted theſe Offices to the Plaintiff, who was at the time of the Grant of the Patent a Lay-perſon, and Bachelor of the Civil Law only: And they find the Stat. of 37 H. 8. c. 17. That Lay-perſons married or unmarried, being Doctors of the Civil Law, may be Commiſſaries, Officials, Scribes, or Regiſters, and that the Plaintiff p. 91exerciſed theſe Offices, and the Defendant diſturbed him. Upon this the matter being argued at the Bar, was reduced only to theſe Two Queſtions: (1) Whether the Patent to the Plaintiff, being a Lay-perſon, and not a Doctor of the Law, were good, or reſtrained by the Statute of 37 H. 8. And as to that point all the Court conceived, The Grant was good, for the Statute doth not reſtrain any ſuch Grant: And it is but an affirmance of the Common Law, where it was doubted, if a Lay or Married perſon might have ſuch Offices; and to avoid ſuch Doubts this Statute was made; which explains, That ſuch Grants are good enough; and it is but an Affirmative Statute, and there is no reſtriction therein: And although Doctors of the Law (though Lay-perſons or Married) ſhall have ſuch Offices; yet this is not any reſtriction, That none others ſhall have them but Doctors of the Law, and the Statute mentions as well Regiſters and Scribes, as Commiſſaries, and that a Doctor of the Law ſhall have them; yet in Common experience ſuch perſons as are meerly Lay, and not Doctors, have enjoyed ſuch Offices. And for this very point was a Caſe in this Court, Hill. 35 Eliz. Rot. 181. between Pratt and Stock, where, upon Demurrer, this Statute was pleaded againſt the Plaintiff, to whom a Commiſſaryſhip was granted, being but a Bachelor of Law; and he having granted Adminiſtration, the Grant was adjudged good, and the Book of Entries, 484, & 489. was allowed good; wherefore they Reſolved the Grant was well enough. And it was alſo Reſolved, That where an Officer for life accepts of another Grant of the ſame Office to him, and to another, it is not any Surrender of the firſt Grant. The Second point was, Whether the office of the Officialty of the Archdeaconry, and the office of the Commiſſary of the Biſhop, be grantable by the Statutes of 1 Eliz. and 13 Eliz. becauſe it was pretended, they were not parcel of the Poſſeſſions of the Biſhoprick or Archdeaconry, ſo as they could have any profits by them, and then the Statute doth not reſtrain the Grants of them. But all the Court Reſolved, They were within the words and intent of the Statutes; for they be Hereditaments, and are pertaining unto them; And that a Grant of theſe Offices to Two, where they were only grantable to One for life, and being granted in Reverſion, it is a void Grant by the Statutes againſt the Succeſſors; For the Statutes reſtrain all Grants of any thing to be avoidable againſt the Succeſſor, beſides Grants of neceſſity and Leaſes for Three lives, or 21 years, where the ancient Rent is reſerved: And all other Grants, as well of Offices as of other things, not warranted by the Statutes, are made void as againſt the Succeſſors, Vid. Coke 10. fo. 60. the Biſhop of Salisbury's Caſe, Coke 5. fo. 14. and a Caſe betwixt Vaughan and Crompton, 14 Jac. at the Aſſizes before the Juſtices of the Aſſize for p. 92the Office of the Regiſterſhip in Suffolk, and between Johns and Powell for the Regiſters place of Hereford, where it was Adjudged, That ſuch Offices granted in Reverſion were void: whereupon Rule was given, That Judgment ſhould be enter'd for the Plaintiff, unleſs other cauſe were ſhewn. And afterward being moved again, Judgment was given for the PlaintiffuuTrin. 7 Car. rot. …74. Wal…er verſ. Sir J. Lambe. Cro. Rep..

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

(20.) The Biſhop of Landaff granted the office of his Chancellorſhip to Dr. Trevor and one Griffin, to be exerciſed by them either joyntly or ſeverally. Dr. Trevor for 350 l. releaſed all his Right in the ſaid Office to Griffin, ſo that G. was the ſole Officer, and then after died. After this the Biſhop grants the ſaid Chancellorſhip to R. (being a Practicioner in the Civil Law) for his life. Dr. Trevor ſurmiſing, that himſelf was the ſole Officer by Survivorſhip, made Dr. Lloyd his Subſtitute to execute the ſaid office for him, and for that, that he was diſturbed by R. the ſaid Dr. Trevor being Subſtitute to the Judge of the Arches, granted an Inhibition to inhibite the ſaid R. from executing the ſaid Office. The Libel contained, That one R. hindered and diſturbed Dr. Lloyd, ſo that he could not execute the ſaid Office. Againſt theſe proceedings in the Arches a Prohibition was prayed, and day given to Dr. Trevor to ſhew cauſe why it ſhould not be granted. They urged, that the Office was Spiritual, for which reaſon the diſcuſſing of the Right thereof appertaineth to the Eccleſiaſtical Courts. But all the Judges agreed, That though the Office was Spiritual, as to the Exerciſing thereof, yet as to the Right thereof it was Temporal, and ſhall be tryed at the Common Law, p. 93for the party hath a Freehold therein. Vid. 4 & 5 P. & M Dyer 152. 9. Hunt's Caſe, for the Regiſters Office in the Admiralty, and an Aſſize brought for that: And ſo the Chief Juſtice ſaid, was Adjudged for the Regiſters Office to the Biſhop of Norwich in B. R. between Skinner and Mingey, which ought to be tryed at the Common Law. And ſo Blackleech's Caſe, as Warburton ſaid, in this Court for the office of Chancellor to the Biſhop of Glouceſter, which was all one with the principal Caſe. And they ſaid, That the office of Chancellor is within the Statute of Ed. Hill. 1610. 8 Jac. B. R. Robotham verſ. Trevor. Brownl. Rep. pa. 2.6. for buying of Offices, &c. And ſo in the manner of Tithing, the Preſcription is Temporal, for which cauſe it ſhall be tryed at Common Law. And Prohibition was granted according to the firſt Rule. So that if a Biſhop grant the office of Chancellorſhip to A. and B. and after A. releaſe to B. and after B. die, and after the Biſhop grant it to R. againſt whom A. ſues in the Eccleſiaſtical Court, ſuppoſing his Releaſe to be void, a Prohibition will lie, for that the office is Temporal as to the Right of it, though the office be Exerciſed about Spiritual matters.Paſch. 3 Car. B. R. Chancellor of Glouceſter's Caſe. Reſolved per Curia…, and Prohibition denied. But if a Chancellor be ſued in the Eccleſiaſtical Court to be deprived for Inſufficiency, as not having knowledge of the Canon Law, no Prohibition lies, for that they are there the proper Judges of his ability, and not the Judges of the Common Law.

(21.) In Dr. Trevor's Caſe, who was Chancellor of a Biſhop in Wales, it was Reſolved, That the Offices of Chancellor and Regiſter, &c.Hill. 8. Jac. Dr. Trevor's Caſe. Coke lib. 12. in Eccleſiaſtical Courts are within the Statute of 5 Ed. 6. cap. 16. which Act being made for avoiding Corruption of Officers, &c. and advancement of Worthy perſons, ſhall be expounded moſt beneficially to ſuppreſs Corruption. And becauſe it allows Eccleſiaſtical Courts to proceed in Blaſphemy, Hereſie, Schiſm, &c. Loyalty of Matrimonies, Probat of Wills, &c. And that from theſe proceedings depends not only the Salvation of Souls, but alſo the Legitimation of Iſſues, &c. and other things of great conſequence; It is more reaſon that ſuch Officers ſhall be within the Statute, than Officers which concern Temporal matters; The Temporal Judge committing the Convict only to the Gaoler,Co. ibid. but the Spiritual Judge by Excommunication, Diabolo: And there is a Proviſo in the Statute for them. And it was Reſolved, That ſuch Offices were within the Purview of the ſaid Statute.