Abridgment of Ecclesiastical Laws, Treatise · Chapter 8
CHAP. VIII.
Of Archdeacons.
1. What an Archdeacon is; his Office and Juriſdiction.
2. The ſeveral kinds of Archdeaconries; and how many in England.
3. Whence the Archdeacons power is derived, and whether a Quare Impedit doth lie of it or not?
4. In what caſe Action lies againſt an Archdeacon, for refuſing to give Induction to a Clerk Inſtituted by the Biſhop.
5. Archdeaconry not comprized under the notion of a Benefice with Cure of Souls.
6. Proceſs of Quorum Nomina prohibited by the Canon to be iſsued by any Archdeacon.
7. How often an Archdeacon may have his Viſitation; and what his Office or Power therein is.
8. How a perſon ought to be qualified, that may be an Archdeacon: It is an Eccleſiaſtical Dignity.
9. Cardinal Otho's Conſtitution touching the Archdeacons government in his Viſitations.
10. How Archdeacons are diſtinguiſhed at the Canon Law.
11. Conformity thereto in the practice of the Common Law.
12. A Caſe at Common Law, touching a Leaſe for years of a Glebe made by an Archdeacon.
13. The ſame Caſe ſomewhat otherwiſe reported.
14, Whether a Quare Impedit lies of an Archdeaconry.
(1.) ARCHDEACON, Philip, a Fifth Son of Lewis the Greſs, K. of France, diſdained not to be an Archdeacon in … Paul. AEm…l. Tilius.from [archos] Princeps or Chief, and Diaconos, Deacon, that is, the firſt or chief of the Deacons: Sum. Hoſt. de Offic. Archid. &c. 1. de Scrut. in Ord. fac. being (according to the Canon Law) ſuch, as hath obtained a Dignity in a Cathedral Church, to have the Priority among the Deacons, and firſt in Juriſdiction next after the Biſhop; Sum. Hoſt. ibid. For as of Common Right all Eccleſiaſtical matters within the Dioceſs appertain to the cognizance of the Biſhop, ſo under him to the Archdeacon, excepting only ſuch things as by Law are ſpecially prohibitedaSum. ibid.. And therefore is ſaid to be dignified with this Title, for that in many things he doth ſupply the room of the Biſhop, to whom he is in precedency to others ſubſervient, and unto whom his ſervice chiefly relatesbCan. Legi…. 93. Diſt. Every Biſhop (be it Archbiſhop or other) hath under him an Archdeacon for the better diſcharge of his Cure. He hath Juriſdiction of Common right, which may vary according to Circumſtances and the Cuſtome of the place;There are 60. Archdeacons in England. and therefore in ſome caſes it is Juriſdictio Ordinaria, in others it is Delegata. And although regularly (as ſuch) he doth not exerciſe any Juriſdiction within the Church it ſelf, yet it cannot be denied but that an Archdeaconry is an Eccleſiaſtical Dignity: Fran. de Aret. in Concil. 23. His Office and Juriſdiction by the Canon Law is of a far larger extent, than is now practicable with us, otherwiſe we ſhould not there find him ſo frequently ſtyled Oculus Epiſcopi, for that he is by the very Law the Biſhops Vicar in ſeveral reſpects, and therefore may (where the Biſhop himſelf conveniently cannot) keep the Triennial Viſitations, or not oftner than once a year, ſave where emergent occaſions do require it oftner. He hath alſo under the Biſhop the power of Examination of Clerks to be Ordained, as alſo of Inſtitution and Induction; likewiſe of Excommunication, Injunction of Penance, Suſpenſion, Correction, Diſpenſations of hearing, determining and reconciling of Differences among the Clergy, Clergy, from foreign, Portio, they being in a peculiar ſenſe, a… the Lords Portion.as alſo of enquiring into, inſpecting, and reforming Abuſes and Irregularities of the Clergy, with a power over the Sub-deacons, and a charge of the Parochial Churches within the Dioceſs. In a word, (according to the practice of, and the latitude given by the Canon Law) to ſupply the Biſhops room, and as the words of that Law are, in omnibus vicem Epiſcopi gerere. Synt. jur. l. 15. cap. 20. de Archidiacono.
(2.) The Dioceſſes within this Realm of England are divided into ſeveral Archdeaconries, they being more or leſs in a Dioceſs according to the extent thereofc17 Ed. 3. 23. Coo. par. 5 Cawdry's Caſe. reſpectively, and in all amounting to the number of Threeſcore: And they divided again into Deanaries, which alſo are ſubdivided into Pariſhes, Towns, and Hamlets. Of theſe Archdeaconries ſome are by Preſcription, ſome by Law d8 H. 6. 3. per Chauntr… The Archdeaconry … Richmond i… by, Preſcription., and ſome by Covenant. Which difference hath this Operation in Law, That the Juriſdiction of an Archdeaconry by Preſcription, or de jure, is excluſive to the Juriſdiction of the Biſhop, inſomuch that a Prohibition lies for ſuch Archdeacon againſt the Biſhop, if he intermeddle Juridically with any matters or things within ſuch Archdeaconries: Otherwiſe it is where the Archdearonry is only by Contract or Covenant made between the Biſhop and the Archdeacon; for in that caſe, if the Biſhop ſo intermeddle within the Juriſdiction of ſuch Archdeacon, or hold Plea within the ſame, he can have but an Action of Covenant againſt the Biſhop, and no Prohibition lies in that caſee… 2…. Jac. B. R Caſtrell and Jones Caſe.. The Cognizance which the Archdeacon hath, is of matters meerly Eccleſiaſtical, to which end he or his Commiſſary may hold his Court, where, and in what places the Archdeacon either by Preſcription or Compoſition hath Juriſdiction in Spiritual Cauſes within his Archdeaconry; and from him the Appeal is to the Dioceſanf24 H. 8. c. 11. Co. Inſt. par. 4. cap. 74..
(3.) An Archdeaconryſhip being only matter of Function, and (as ſuppoſed) not properly Local, nor any Indenture made of it, it hath been ſome queſtion heretofore, whether a Quare Impedit doth lie of it, or not? But it was held in the Affirmative, for that an Archdeacon hath Locum in choro gTim. 31 Eliz. C. B. Smallwood verſ. Biſhop of Lichfield. Leon. Rep.. The power of an Archdeacon was derived from the Biſhop, and to him he is ſubordinate: To which purpoſe the opinion of the Court in Hutton's Caſe upon a Quare Impedit was, That if a Suit be before an Archdeacon, whereof by the Statute of 23 H. 8. the Ordinary may licenſe the Suit to a higher Court; that the Archdeacon cannot in ſuch caſe balk his Ordinary, and ſend the Cauſe immediately into the Arches: for he hath no power to give a Court, but to remit his own Court, and to leave it to the next; for ſince his power was derived from the Biſhop to whom he is ſubordinate, he muſt yield it to him of whom he received it; and it was ſaid in that Caſe, that ſo it had been ruled heretoforehSir Timothy Hutton's Caſe C. B. Hob. Rep..
(4.) If after the Clerk hath been preſented by the Patron, and Admitted and Inſtituted by the Biſhop, the Archdeacon ſhall refuſe to Induct him into the Benefice, an Action upon the Caſe lieth for the Clerk againſt the ArchdeaconiPaſch. 23 Eliz. C. B. Adjudg. Godb. 23. vid. F N. B. 47. 26 H. 8. 3. by Knightly.. He hath power to keep a Court, which is called the Court of the Archdeacon, or his Commiſſary; And this Court is to be holden where and in what places the Archdeacon either by Preſcription or Compoſition hath Juriſdiction in Spiritual Cauſes within his Archdeaconry. And from him the Appeal is to the Dioceſan.
(5.) Although by the Canon Law, if one having a Benefice with Cure of Souls accepts an Archdeaconry, the Archdeaconry is void; yet it is conceived, that upon the Stat. of 21 H. 8. 13. the Law is qualified in that point by reaſon of a Proviſo there, viz. Provided that no Deanary, Archdeaconry, &c. be taken or comprehended under the Name of a Benefice, having Cure of Souls, in any Article above-ſpecified; and to this Opinion did Wray and the other Juſtices incline in Vnderhill's CaſekPaſch. 31 Eliz. B. R. Vnderhill and Savage's Caſe. Leon. Rep.. And indeed an Archdeaconry, by the expreſs Letter of that Statute, is exempt from being comprehended under the name of a Benefice with Cure; for the words are, That no Deanary, Archdeaconry, Chancellorſhip, Treaſurerſhip, Chanterſhip, or Prebend in any Cathedral or Collegiate Church, nor Parſonage that hath a Vicar endowed, nor any Benefice perpetually Appropriate, ſhall be taken or comprehended under the name of a Benefice having Cure of SoulslSt. 21 H. 8. 13..
(6.) By the Eccleſiaſtical Conſtitutions and Canons of the Church, of England, no Archdeacon (nor indeed any other Eccleſiaſtical Judge) may ſuffer any general Proceſs of Quorum Nomina to iſſue out of his Court: Except the Names of thoſe to be cited be firſt expreſly entered by the Regiſter or his Deputy under ſuch Proceſs, and both Proceſs and Names firſt ſubſcribed by ſuch Archdeacon, or other Eccleſiaſtical Judge, or his Deputy, with his Seal thereto affixed. And in places where both the Biſhop and Archdeacon do by Preſcription or Compoſition viſit at ſeveral times in one and the ſame year, the Archdeacon or his Official, ſhall within one month next after the Viſitation ended that year, and the Preſentments received, certifie under his hand and Seal to the Biſhop or his Chancellor, the Names and Crimes of all ſuch as are preſented in his ſaid Viſitation, to the end the Chancellor may not Convent the ſame perſon for the ſame Crime, for which he is preſented to the Archdeacon; which courſe the Chancellor is in like manner to obſerve, in reference to the Archdeacon, after the Biſhops Viſitation ended. The which was Ordained, to prevent the Proſecution of the ſame party for the ſame fault in divers Eccleſiaſtical CourtsmCan. 120, 121.. And in caſes of remitting Cauſes from the Inferiour Judge, the Archdeacon cannot remit the Cauſe to the Archbiſhop; but he muſt remit it to his Biſhop, and he to the Archbiſhop. Trin. 11 Jac.
(7.) The Archdeacon within the Juriſdiction of his Archdeaconry may by vertue of his Office have his Viſitation, if he ſo pleaſe or need ſhall require, once every year; but of neceſſity he is to have his Triennial Viſitation: Lindw. de Offic. Archid. c. 1. verb. Viſitatione gloſs. But whether of Common right and by the Jus Commune the Archdeacon may Viſit within the Juriſdiction of his Archdeaconry is ſome queſtion, yet reſolved by diſtinguiſhing whether the Viſitation be made per modum Serutationis ſimplicis by the Archdeacon, as the Biſhops Vicar, and ſo he may Viſit of Common Right: but if in ſuch Enquiries he take upon him nomine ſuo proprio to correct Faults, other than ſuch ſmall ones as wherein Cuſtome may warrant him; in ſuch caſe it is held, that he hath not power of Viſitation de jure communi: Lindw. ibid. And in all ſuch things as belong to his Viſitation he hath Juriſdiction, and by Cuſtome over Lay-perſons as well as over the Clergy: It ſeems therefore he may do all ſuch things, as without the doing and diſpatch whereof his Juriſdiction could not clearly appear; L. cui Juriſdictio ff. de Juriſd. om. Jud. and therefore wherever he may take cognizance of a matter, there he may alſo give ſentence and condemn; Extr. de Cauſ. Poſſ. & propr. c. cum Super. & de Offic. Deleg. c. ex Literis. which is ſuppoſed to hold true by Cuſtome, and inaſmuch as the cognizance and reformation of ſuch matters do belong to the Eccleſiaſtical Court; whence it is that an Archdeacon may impoſe a penalty on Lay-men for the not repairing their Pariſh-Church within his Juriſdiction; Extr. eod. c. ult. & Extr. de Offic. Ord. c. 1. & Lindw. ubi ſupr. verb. Imperitiam. For it is expreſly enjoyned and ordained, That Archdeacons and their Officials, ſhall at their Viſitation of Churches, take the condition of the Fabrick thereof into ſpecial conſideration, ſpecially of the Chancel; and in caſe there be need of Reparations, ſhall ſet or fix a time within which ſuch Reparations ſhall be finiſhed, which time is likewiſe to be ſet under a certain penalty: Lindw. de Offic. Archidiac. c. Archidiaconi.
(8.) By the Canon Law a man cannot be an Archdeacon under the age of 25 years; Can. Nullus in propoſitum, 60 Diſt. And by the Council of Trent he ought to be a Licentiate in Law or Divinity; Conſ. Trid. 8. Ceſſio de Reform. general. Can. 12. They are called the Chief of the Deacons; C. 1. de Scrutin. in Ord. faciend. in whom there is an Eccleſiaſtical Dignity inherent jure Communi: And in ſome places they have this Dignity ſine Officio; for Innocentius obſerves, That in Eccleſia Parmenſi Archidiaconus nullum exercet Officium, & nihilominus dignitatem habet: Innocent. in c. de multa de Praebend. But regularly, according to the Canon Law, Archdeacons as to their Dignity, Office, and Degree are to be reputed according to the Law, Uſage, and Cuſtome of their own Church and Chapter; Hoſtienſ. Sum. de Offic. Archid. The Archdeacon is Oculus Epiſcopi, and ipſo jure his Vicar in Viſitations, Corrections, and Diſpenſations in matters Eccleſiaſtical within his Juriſdiction, he hath power of reforming the Clergy, of examining and preſenting to the Biſhop ſuch as are to be Ordained, and of putting into poſſeſſion ſuch as are Preſented, Inſtituted and Inducted into Eccleſiaſtical Benefices.
(9.) Cardinal Otho, in his Canon de Archidiaconis, hath Ordained, That all Archdeacons do prudently and faithfully viſit the Churches within their reſpective Archdeaconries, as touching the Sacred Veſſels and Veſtments thereof, and generally to enquire into the Temporalties and Spiritualties belonging to the ſame, and that they endeavour to amend what they find amiſs: Alſo, that they grieve not the Churches with ſuperfluous charges or expences, but require only moderate procurations in their Viſitations; wherein they may not preſume to receive money of any when Crimes are to be corrected or puniſhed, nor Sentence any unjuſtly, on purpoſe to extort money from them, on pain of double the Sum to pious uſes at the diſcretion of the Biſhop, beſides other Eccleſiaſtical puniſhment. Conſtit. Othonis, de Archdiaconis.
(10.) The Canon Law doth diſtinguiſh of Archdeacons; the whole Title throughout [De Offic. Archidiac.] regularly ſpeaks of an Archdeacon General, who hath not any Archdeaconry diſtinctly limited, Sed tanquam Vicarius fungitur vice Epiſcopi Vniverſaliter, and doth repreſent the Biſhop: Extra. de Conſue. non putamus. Otherwiſe it is in him who hath a diſtinct Limitation of his Archdeaconry, for then he hath a Juriſdiction ſeparate from the Biſhop, which, where it is by Cuſtome, may be preſcribed: Gloſſ. in ver. Viſitent. dict. Conſt. Otho. Conſonant to this ſeems that difference which the Judges took in the Caſe between Chiverton and Trudgeon, wherein they held and agreed, That there is a Juriſdiction of one Archdeacon, and there is the Juriſdiction of another, which is but a peculiar Juriſdiction; for the Archdeacon is an Officer who hath a Court of his own, in which he hath the Probat of Teſtaments de jure: And Doderidge Juſtice ſaid, That he is a principal Officer belonging to the Biſhop, & eſt quaſi Oculus Epiſcopi; but otherwiſe it is of one who hath but a ſpecial Juriſdiction, as the Archdeacon of Richmond hath to make Inſtitutions; and ſo 21 H. 6. 23. the Dean of Pauls in that caſe hath ſpecial Authority in St. Panchridge. Hill. 17 Jac. B. R. Caſe Chiverton and Trudgeon: Roll. Rep.
(11.) In the Caſe between Gaſtrell and Jones, it was ſaid by Ley Chief Juſtice, That it is to be conſidered, what Authority the Archdeacon hath in his own nature, as ſuch, and what power he may have by Preſcription, or otherwiſe: The Archdeacon is a Miniſter ſubordinate to the Biſhop, viz. Deputy and Vicar, or an Officer under him, for, in caſe of Induction, the Biſhops Warrant is neceſſary to impower him to give the ſame; He hath alſo Judicial power, but it is not excluſive to the Epiſcopal Authority, but the Biſhop is his Superiour: Both are Judges, but the one ſubordinate to the other, &c. And if Sentence be given in the Archdeacons Court,Q the Appeal thence ſhall not be in the Biſhops Court, but in the Archbiſhops: And if a man dies Inteſtate, having goods within the Archdeacons Juriſdiction, and other Goods within the Juriſdiction of the Ordinary,Q. the Archbiſhop (as he ſaid) ſhall commit the Adminiſtration to the Archdeacon.
(12.) The Archdeacon of H. having the Parſonage of A. appropriate to it, Lett the Land parcel of his Glebe for fifty years, in Anno 12 Eliz. The Biſhop of E. Patron of the Archdeaconry, and the Dean and Chapter confirm it; The Archdeacon dies, another is Collated to the Archdeaconry. It was the Opinion of the Juſtices in this Caſe, firſt, That the Confirmation by the Biſhop was not void, for that it was but an Aſſent only to the Leaſe of the Poſſeſſion of the Archdeaconry, and not of the Biſhop, and therefore not within the Statute of 1 Eliz. The ſecond Point was, Whether this Leaſe was void by the Statute of 13 Eliz. Quaere, for not Reſolved. Mich. 37 & 38 Eliz. B. R. Sir Edw. Denny and Eakenſtall's Caſe. Cro. par. 1.
(13.) The ſame Caſe Reported by More; An Archdeacon having a Parſonage appertaining to his Archdeaconry before the Statute of 13 Eliz. made a Leaſe for forty years of the Parſonage, which was Confirmed after the Statute; adjudged the Leaſe and Confirmation both good. Arkingſall, or Eakenſtall, and Denny's Caſe. More's Rep.
(14.) A Quare Impedit was brought by the Executors of J. S. for not ſuffering them to Preſent to the Archdeaconry of D. which became void in the life of the Teſtator, and the Writ and Count both ſuppoſed a diſturbance to the Teſtator in his life, In nunc retardationem Executionis Teſtamenti praedict. In this Caſe it was Reſolved (1.) That a Quare Impedit did lie of an Archdeaconry. (2.) That the Writ as brought ſhould abate, becauſe it was in nunc retardationem, which cannot be of a Diſturbance in the life of the Teſtator. But it was agreed, that the Executors might have a ſpecial Action upon the Caſe for their Diſturbance. Trin. 31 Eliz. B. R. Smalwood and the Biſhop of Coventry and Marſhes Caſe. Cro. par. 1.