Abridgment of Ecclesiastical Laws, Treatise · Chapter 9
CHAP. IX.
Of Procurations, Synodals, and Pentecostals.
1. Procuration, what; whence ſo called; and how paid.
2. Whether Procurations be only due ratione Viſitationis.
3. Procurations Anciently paid in Victualibus, and not in Money; how paid to Archdeacons in Lindwoods time.
4. Whether Procurations may be payable by Cuſtome to Archdeacons ſine Viſitatione?
5. Archdeacons to Viſit perſonally; if otherwiſe, then how the Procurations are payable.
6. Not above one Procuration to be paid; how that is to be underſtood.
7. The Number of the Viſitor's Attendants by the Council of Lateran in reference to Procurations; and how many an Archdeacon may have by the Canon.
8. Synodals, the threefold ſignification of that word.
9. The Synodal anciently called Cathedraticum & Synodaticum: what the Cathedraticum was, why ſo called; the Original thereof, and how it differs from Procuration.
10. Pentecoſtal, what it is; when, by, and to whom payable; the probable Original thereof.
11. A remarkeble Caſe relating to this Subject, that was Reſolved and Adjudged in Ireland.
(1.) THe Ordinary at his Viſitation may by the Canon require his Synodals or Procurations, Extr. de Cenſ. c. Procurationes; that is, a certain Cenſe or Tribute in money paid to the Biſhop or Archdeacon by the inferiour Clergy at Eaſter-Viſitation; called Synodale or Synodaticum, quia in Synodo frequentius dabatur. So that theſe Procurations are no other than certain ſums of money which the Parochial Clergy do annually pay to the Ordinary or Archdeacon ratione Viſitationis. Anciently they were paid in proviſions of Victuals neceſſary for the Viſitor and his Attendants, now converted into money inſtead thereof: So that this Procuratio is by Vallenſis aptly defined, Vallenſ. Paratis, de Cenſib. §. 3.Neceſsariorum ſumptuum Exhibitio, quae, ratione Viſitationis, debetur ab Eccleſia vel Monaſterio ei cui ex officio incumbit jus & onus Viſitandi, ſive is ſit Epiſcopus, ſive Archidiaconus, ſive Decanus, ſive Legatus ſummi Pontificis. An. 1290. M. quod die Mercurii in Feſto Sanct. Lucae Evang. Dominus Epiſcopus coepit Procurationem in Cibis & Potibus apud Bordeſley, & pernoctavit ibidemaGiſſ. fo. 226. b. vid. Nome. Lex, ver. Procurat.. Whence the word Procuration is ſuppoſed to have its derivation, even from the duty incumbent on the Viſited in Procuring of neceſſary Accommodations for the Viſitor and his Attendants as aforeſaid; which ſeems the more probable by what Duarenus ſays, Hoc autem munus ideo Procuratio vocatur, quia Eccleſiae Epiſcopum Procurant, id eſt, Curant, alunt, ac tuentur.
(2.) It hath at times been ſmartly controverted, Whether Procurations be due only ratione Viſitationis, or whether the payment thereof may legally be enforced without the Act of Viſiting, and not excluſively to Archdeacons in the years of Epiſcopal Viſitations? For if ſo, then the foreſaid deſcription which Vallenſis makes thereof, is not adequate enough to the nature of the thing; of which opinion grounded on ſolid Arguments, is the Learned Author of the Hiſtorical Diſcourſe on this SubjectbStephens de Procurat. Edit. 1661..
(3.) Anciently (as aforeſaid) theſe Viſitation-Procurations, or Exhibitio neceſſariorum ſumptuum, as Vallenſis calls it, was no other than Victuals: For by the Council of Lateran (not the great General Council under Innoc. 3.) but that under Alex. 3. above thirty years before,Extr. de Cenſib. c. cum Apoſtolus. about An. 1180. Viſitors are ſo directed to proceed in the execution of their Viſitations, as that Sumptuoſas Epulas non quaerant, ſed cum gratiarum actione recipiant quod honeſte & competenter illis fuerit miniſtratum. That theſe Procurations were originally paid in Victualibus, appears by ſeveral Conſtitutions of the Canon Law. Extr. de Cenſib. c. cum Apoſtolus, & de Cenſib. c. Romana, §. Procurationes. Conſuetudo tamen (ſays Lindwoods Gloſs) operatur in pluribus locis, ut Procuratio hujuſmodi ſumatur in pecunia; quae Conſuetudo bene poteſt procedere, ut ſumatur à Volentibus ſic in pecunia Solvere, non autem à Nolentibus. Extr. Benedict. 12. &c. Foelicis, & gl. Lindw. ubi ſupr. But that was only where the Cuſtome prevailed, the Canon anciently being peremptory to the contrary; for in the Sext. there is a Conſtitution made by Innoc. 4. (who became Pope An. 1243.) and afterwards ratified by a General Council at Lions under Greg. 10. about An. 1273. forbidding (ſub poena Maledictionis aeternae) the taking of money in lieu of Procurations (vel à Volentibus ſic ſolvere) C. 1. §. Procurationes, &c. exigit. eod. in ſexto, & ibi Gloſſ. in caſu; and the ordinary penalty practiced in this caſe againſt Viſitors of any rank inferiour to Patriarchs, Archbiſhops, or Biſhops, that ſhould preſume to receive Procurations otherwiſe than in Victualibus, was ſuſpenſion ab officio & beneficio. And this way of paying Procurations ex antiquo, continued till the time of Boniface 8. who ſucceeding in the Papacy about twenty two years after Gregory, made a Conſtitution about the year 1295, That it ſhould be lawful to any Viſitor (Volentibus Viſitatis, not otherwiſe) vice Victualium to receive, not to exact, Money towards the defraying of their Viſitation-Charge. Gloſſ. in ver. diſpendia, c. Foelicis, eod. in ſexto: Which by Benedict. 12. in the ſecond year of his Popedom, about 1337. was by a Canon or Conſtitution limited to a certain ſum, according to the quality of the Viſitor, and the condition of the Viſited, which may take place, where it is not otherwiſe limited by Cuſtome; the Procurations of Archdeacons being in Lindwood's time, as he informs us, (which was in Henry the Fifths Reign, above two hundred years ſince) the ſum of ſeven ſhillings ſix pence, according to the number of his Attendants, viz. twelve pence to each man, and eighteen pence to the Archdeacon himſelf, which (comparing the value of Money Then with the times Now) was conſiderable.
(4.) The Queſtion is not, whether Procurations are due Ratione Viſitationis; but whether they are only due Ratione Viſitationis, and not otherwiſe? It is ſuppoſed that they are and may be due otherwiſe than Ratione Viſitationis, Vid. Hiſt. Diſc. of Procurationt▪ p. 25, 26.and that therefore Archdeacons may receive Procurations in the L. Biſhop's Triennials, and yet Viſit not; for Cuſtome ſeems to lay a juſt claim to this Eccleſiaſtical payment of Procurations ſine Viſitatione, where the Cuſtome is Rationabilis & Legitime praeſcripta. Time was, when Archdeacons had jus Viſitandi quolibet anno, and ſo accordingly did Viſit, & eâ ratione received Procurations. Lindw. de Offic. Archid. c. 1. gl. in ver. Viſitation. & Extr. de Offic. Archid. c. Mandamus, gl. in ver. ſaepius Viſitare. And ſometimes they Viſit not, as in the Epiſcopal Triennials, yet by the Cuſtome do and may receive their Procurations; P. ubi ſupr, &c.underſtand this only of ſome, not all Archdeacons.
(5.) The Canoniſts define Procuration to be an Exhibition ſumptum Neceſſariorum paid to the Prelates, qui Dioeceſes peragrando Eccleſias ſubjectas Viſitant. And it is a Rule in the Canon Law, Quod nulla eſt adverſus Procurationem praeſcriptio. Inſt. Ju. Can. l. 2. de Cenſib. And by the ſame Law the Archdeacon is to go perſonally to the place that is to be Viſited, and ought not for that purpoſe to ſend another; which if he doth not ſo do, he is not to receive in denariis the Procurations due ratione Viſitationis. Extr. de Cenſ. c. Procurationes. Notwithſtanding the perſon whom he Commiſſionates for that purpoſe Nomine ſuo, ſhall receive the Procurations for himſelf and his Attendants in Victualibus. Ar. ad hoc de Offic. Ord. c. ſi Epiſcopus, l. 7. & de Cenſib. c. 1. &c. Foelicis, de Cenſ. Lindw. glo. de Offic. Archid. c. ut Archidiaconi, ver. videant. Theſe Procurations are called alſo Proxies, Cenag. & Pentecoſtal. per. an. 64 l. 10 s. ita Archidiaconatus Glouc. valet clare in Proxis cEx Record. Primit. 26 H. 8. vid. Dyer fo. 273. b. & Clauſ. Ro…. 31 E. 1. M. 15. dorſ. vid. Nomo. Lexicon, ubi ſupr., which is a profit of Juriſdiction. Archidiaconis inhibemus ne aliquo modo Procurationes recipiant ſine Cauſa Rationabili, niſi illo die quo perſonaliter Viſitant. Provin. Conſtit. de Offic. Archid.
(6.) The Ordinary may not receive above one Procuration, that is, he may not of the ſame Church exact one Procuration from the Rector, another from the Vicar; if he hath the Procuration in Victualibus of the Rector, he ought to receive nothing of the Vicar, nec è contra; for one Procuration of one Church for one day is held ſufficient: dict. c. Foelicis, de Cenſib. Nor do the Canons allow above one Procuration, in caſe there be more Churches than one Viſited in one and the ſame day; the Reaſon whereof in Law, becauſe the Viſitation is the Principal, the Procuration is but the Acceſſory, and the Viſitation only of one day ought not to have the Procurations of more, nor ought the Acceſſory to exceed the Principal. Lindw. ibid. de Cenſib. c. quamvis, & gl. ib. ver. Canones. Nor ought there to be paid above one Procuration for the Mother-Church and the Chappel thereto belonging, when they are Viſited. Can. ibid. ver. una Eccleſia. Yet there are Canoniſts of very good Authority, as Andraeas and others, who holding the contrary, do poſitively aſſert, That every Chappel dependent (if Peopled and of ability) ſhall pay its own proper Procuration at times of the Ordinary Viſitation, for that the Biſhop is to have a reſpect to every individual Member of his Dioceſs. It is therefore diſtinguiſhed and confeſſed, that this is true, when the Chappel dependent hath a Curate proper of its one, and diſtinct from, or other than the Curate of the Mother-Church: But otherwiſe when the Rector of the Superiour Church, is Curate of both, only doth exerciſe the Cure in the ſaid Chappel by a Vicar not Perpetual, but Temporal and removeable ad Libitum. Gl. in d. ver. una Eccleſia. Lindwood on this occaſion puts the Queſtion, Whether in caſe the Church be of one Dioceſs, and the Chappel thereto annexed or united, or dependent thereon, of another; whether in that caſe there ſhall at the Viſitation be but one Procuration paid for both? He reſolves it thus, viz. That if the Ordinary of the place where the ſaid Chappel ſtands, hath formerly had there his Viſitation, and Procuration, ratione Viſitationis ejuſdem, then and in that caſe the power of Viſiting the ſame, nor by conſequence the Procuration due ratione Viſitationis, is not taken away from that Ordinary by ſuch union or dependency. Gloſſ. ibid. in ver. Eccleſia.
(7.) By the aforeſaid Council of Lateran all Viſitors were limited to a certain number of Viſitation-Attendants, according to their ſeveral qualities, as Archbiſhops to the number of forty or fifty men with their Horſes; the Biſhop to twenty or thirty; Cardinals to twenty five (though they could not digeſt ſuch an undervaluation) Archdeacons to five or ſeven; Deans (that is, Archipresbyteri Rurales, as the Gloſs expounds it) to Two only: Gl. in ver. Decani. Extr. eod. c. cum Apoſtolus. Extr. Com. de Cenſib. c. vas Electionis. And the truth is, the Archdeacon (according to the Canon) may not have in his Ordinary Viſitation above the number of ſeven perſons; if he exceed that number, there is not any Procuration due for the Supernumeraries. Lind. de Cenſ. & Procurat. c. 1. ver. excedant, & glo. ibid. & gl. in ver. Viſitationis, & gl. ib. in ver. Debitam.
(8.) The word Synodale ſeems to have Three ſignifications, as (1) it ſeems to ſignifie Conventus or a Meeting, in the ſame ſenſe with Synodus, as being taken for the Meeting or Synod it ſelf, and ſo uſed by Gregory 3. in his Epiſtle to the Biſhops of the Provinces of Baiory and Almany, Catholica Sanctorum Patrum Authoritas jubet, ut bis in anno pro ſalute populi Chriſtiani ſeu exhortatione adoptionis filiorum SYNODALIA debent celebrari, &c. This Epiſtle you have cited by Cardinal Baronius, in the Eighth Tome of his Annals about the year 738. (2) It ſeems to ſignifie the Acts done at a Synod, as well as the Synod it ſelf; and in this ſenſe you have it in the Tripartite Hiſtory, Hiſt. Tripart. l. 7. ſo. 452.where mention is made of a Synod of Biſhops aſſembled at Antioch out of divers Provinces, who ſent the Emperour Jovinian a Copy of the Nicene Creed, Hunc Libellum (meaning the ſaid Creed) in collectione Synodalium Sabini conſcriptum invenimus. Ibid. fo. 392.In which place Synodalia ſeems to import the Acts of that Synod collected by that Sabinus. (3) It ſignifies a Cenſe or Tribute in money paid to the Biſhop, or to ſome other for his uſe by the Inferiour Clergy. The forementioned Author of the Hiſtorical Diſcourſe of Procurations,Pag. 78. &c. acquaints us, That in the ſecond part of the Appendix to the third General Council of Lateran there is an Epiſtle of Pope Alex. 3. to certain Archdeacons and Deans, reproving them for extorting of moneys from the Clergy ſub diverſis nominibus, in a fraudulent kind of way; Et hujuſmodi exactionem (ſaith that Epiſtle) ut eam Liberius videamini exigere; quandoque Conſuetudinem Epiſcopalem, quandoque SYNODALIA; quandoque Denarios Paſchales appellantes. And in this ſenſe is the word Synodale here uſed and taken, which the Archdeacon claims not ſo much Jure Communi Eccleſiaſtico, as by Compoſition with, or Preſcription from the Biſhop.
(9.) This Synodal or Synodical duty was anciently known by two other Names which now are grown obſolete, the one Cathedraticum, probably from the original Cauſe thereof, being ob honorem Cathedrae Epiſcopalis: the other Synodaticum, from the time of payment, both uſed promiſcuouſly. The former of theſe, viz. the Cathedraticum was a Cenſe of two ſhillings paid by the Inferiour Clergy to the Biſhop, as appears by the Acts of certain Councils of Bracar and Toledo, as alſo by the Conſtitutions and Reſcripts of Popes, Ilud te volumus modis omnibus cuſtodire, ne qui Epiſcoporum Siciliae de Parochiis ad ſe pertinentibus, nomine CATHEDRATICI, amplius quam Duos Solidos praeſumant accipere. 10. q. 3. c. illud, &c. placuit, ibi, &c. So Honorius 3. expreſſeth Two ſhillings nomine Cathedratici. Extr. de Offic. Jud. Ordin. c. conquerent. & gl. ibid. in ver. Duos ſolidos; which is a Penſion paid to the Biſhop à qualibet Eccleſia ſecundum Loci conſuetudinem; as Panormitan. upon that Text, Abb. c. conquerent. de Offic. Jud. Ord. The reaſon of this payment was (according to Hoſtienſis) in argumentum ſubjectionis, & ob honorem Cathedrae. Hoſtienſ. in Sum. de Cenſib. ex quibus ver. Cathedraticum autem. And the Council of Bracar; Placuit ut nullus Epiſcoporum per ſuas Dioeceſes ambulans, praeter honorem Cathedrae ſuae, id eſt, Duos Solidos, aliud aliquid per Eccleſias tollat? cited in the Decree, 10. q. 3. c. placuit. Note, that the Ciſterſians by virtue of their Order were priviledged from being preſent at the Synodical Meetings aſſembled by the Biſhop within his Dioceſs, and from the payments of thoſe Synodals. Gloſſ. in ver. Epiſcopus, c. Epiſcopus non debet, Diſt. 18. Extr. de Majoris & Obed. c. 9. Quod ſupr. & gl. ib. in ver. Diocoeſana. This Cathedratick-payment began, when the Revenues of the Church firſt came to be divided and alotted to ſeveral Miniſteries; then it was that this payment was firſt made to the Biſhop by the Beneficed Clergy within his Dioceſs. Duaren. ut ſupr. & l. 2. c. 1. fo. 53. It is probable that this diviſion of the Church Revenues was not far diſtant in time from the firſt or original diſtinguiſhment of Parochial Bounds, upon which affair Pope Euariſtus, otherwiſe called Anacletus Graecus, did firſt enter about the year 110. Volateran. l. 22. Anaſt. Biblioth. & Baron. Annal. ad An. 112. nu. 4, 5, 6. and was afterwards carried on by Pope Dionyſius, about the year 260. Baron. Annal. ad An. 260. nu. 17. Parochial Diſtribution in England was by Theodorus Archbiſhop of Canterbury, about the year 668. Spelm. Concil. 152: But Speed ſaith, by Honorius the fifth Archbiſhop alſo of Canterbury, about the year 636. It may not hence be inferr'd, that this Cathedraticum or Synodal was only paid ratione Synodi; for it was ſometimes, and very anciently paid alſo at Viſitations, as appears by the ſeventh Council at Toledo, mentioned in the Decree, 10. q. 3. c. inter caetera, & caſus ibi, where there is a Canon againſt the exacting of more than Two ſhillings only pro Cathedratico in Epiſcopal Viſitations. This Cenſe or payment, though it be Onus Eccleſiaſticum, yet it is not Onus innovatum, but Onus Ordinarium, and by impoſition of Law; as appears by the Provincial Conſtitutions, Solutio Cathedratici, Synodatici, & Procurationum, ratione Viſitationis, & alia hujuſmodi, de quibus non dubitatur quin ſunt Onera Ordinaria, ſuum capiunt effectum ab impoſitione Legis. Lindw. de Offic. Vic. c. quoniam. gl. in ver. Onera Eccleſiaſtica. Yet Procurations differ from the other in this, that Procurations are only Penſions, but the other are properly Cenſus. The Synody or Synodal is by the Stat. of 34 H. 8. reckoned as a Church-due,Raſtall in Penſions, &c. for recovery whereof proviſion is made by that Act; and good reaſon, for the ſaid Synody or Synodal, is a Penſion certain and valued in the King's Books.
(10.) The aforeſaid Ingenious Author of the Hiſtorical Diſcourſe touching Procurations, Dict. Hiſt. Diſ. of Procurations, p. 99.&c. after his deep ſearch into Antiquity, doth conjecturally conceive, that the Pentecoſtal, otherwiſe called Whitſonfarthings, is nothing elſe but the Annual Commemoration, continuation or repetition of an Ancient payment or penſion, iſſuing out of the Oblations brought by the people long ſince, ſpecially at the time of the Foundation or Dedication of their ſeveral Churches, or at ſome other Solemnity, viz. the moiety or Third part of the Oblations then made. The ſame being reſerved by the Biſhop, and by a Contract (ſeu quaſi Contractu) between him and the Founder of ſuch Church, or Prieſt aſſigned to attend the ſame, ſettled in and upon the Epiſcopal See, and payable yearly at or about the Feaſt of Pentecoſt. Theſe Pentecoſtalia were not (as ſome conceive) the Peter-pence here anciently paid, for they were uſually paid either at the Feaſt of St. Peter and Paul, or on Lammas day; but theſe Pentecoſtals ſeem to be paid upon or about the time that doth chiefly denominate the ſame, viz. at the Feaſt of Pentecoſt; and in the nature thereof ſeem to have reference to an Oblation frequently made by the Chriſtians in the Elder times of the Church, and to have ſome tendency to that Liberal Devotion which was then as frequent, as Sacriledge is now. In Leg. 18 Guilielm. Conqueſtor, De Denariis S. Petri, ſeu Vectigali Romano, viz. Liber homo qui habuerit Averia Campeſtria 30 denariis aeſtimanda, dabit Denarium S. Petri. Pro 4 denariis quos donaverit Dominus, quieti erunt Bordarii ejus, & ejus Boner, & ejus Servientes. Burgenſis, qui de propriis Catallis habet id quod dimidia Marca aeſtimandum eſt, det Denarium S. Petri. Qui in Lege Danorum eſt Liber homo, & habet Averia Campeſtria, quae dimidia Marca in argento aeſtimantur, debet dare Denarium S. Petro. Et per Denarium quem donaverit Dominus, erunt quieti ii qui reſident in ſuo Dominico. Vid. S…ldeni ad Eadmerum Notae & Spicelegium, p. 179. Leg. 18. By this Law of William the Conquerour it appears, that the Peterpence had no affinity with the Pentecoſtals. In Ancient times when the Biſhop did viſit Eccleſiatim, his uſage was to celebrate the Maſs in the Church which he viſited, which indeed was every Pariſh within his Dioceſs, and that by his Epiſcopal Authority, the whole Dioceſs in reſpect of the Biſhop being by the Law but Paroechia ſua, 10. q. 3. c. Quia. & Duarenus, paſſim. Antiq. Eccleſ. B…i…. p. 28, & 64.as the whole Province is ſaid to be in reſpect of the Lord Archbiſhop of Canterbury. At this Maſs the people uſed to make their Offerings to the Biſhop, and one of the cauſes or reaſons, why or wherefore the people in Ancient times were obliged to bring their Oblations to the Church, was propter Conſuetudinem, and that certis Feſtivitatibus, among which the Feaſt of Pentecoſt was and is a moſt ſpecial one; at which Feaſt there was in many places here in England an Oblation, Anciently made by inferiour Churches and Pariſhes to the principal Mother-Church, and whence probably the word Pentecoſtalia had its original denomination. Theſe Offerings by the Canon Law were and are only due to the Clergy, and interdicted to the Laity, ſub diſtrictione Anathematis. 10. q. 1. c. Quia Sacerdotes, &c. Sanct. Patrum, ibi. In ſome places the Deans and Prebendaries of Cathedral Churches have them; It is ſaid, That in the Cathedral Church of Salisbury there is a greater and a l…ſs,Dict. Hiſt. Diſcourſe of Procurat. p. 116. diſtinguiſhed and known by this difference of Major & Minor pars Altaris. And in ſome Dioceſſes they are ſettled upon the Biſhop and Archdeacon, and made part of their Revenue, for which the King hath Tenths and Subſidies. The Cathedral or the Mother-Church of Worceſter was Anciently, and before the diſſolution, a Priory,Ibid. and among other Revenues had theſe Pentecoſtalia or Whitſonfarthings yearly paid, ſub nomine Oblationum or Spiritual Profits tempore Pentecoſtes: After the Diſſolution, when King H. 8. about the three and thirtieth year of his Reign new-founded and reendo'wd the ſaid Church, he reſtored theſe Pentecoſtalia (after he had h…ld them about a year in his own hand) to the ſaid Church, which (as it is reported) the Dean and Prebendaries thereof receive at this day, and as appears by the Letters Patent:
Henricus Octavus, &c. Sciatis quod Nos de gratia noſtra ſpeciali, ac ex certa ſcientia, ac mero motu noſtris dedimus & concedimus, ac per praeſentes damus & concedimus Decano & Capitulo Eccleſiae Cathedralis Chriſti & beatae Maria Virginis Wigorn. omnes illas Oblationes & Obventiones, ſive Spiritualia proficua vulgariter vocat, Whitſon farthings annuatim collect. ſ…ve recepta de diverſis Viliatis in Comitat. noſtris Wigorn. Warwic. & …. infra Archidiaconatum Wigorn & tempore Pentecoſt. oblata dicto nuper Prioratui beatae Mariae Wigorn. modo diſsolut. dudum ſpectan. & pertinen. &c. Ex Archivis Decani & Capit. Wigorn.
But in Gloceſter, it ſeems, it is otherwiſe; for there the Biſhop and the Archdeacon only receive them: nor can the Dean and Prebendaries that now are of the Cathedral make any juſt claim to them. For before the Suppreſſion theſe Pentecoſtals were (inter alia) valued to the Archdeacon in the Kings Books, as part of the Revenue of the Archdeaconry. And as for Procurations aforeſaid, although they are (as Dr.Dr. C…ſen. Polit. Eccleſ. Angl. tab. 8. Coſen ſays) ratione Viſitationis plerumque praeſtandae, yet not ſolummodo ſo; and thence it is held, that they are in ſome places payable to the Archdeacon jure Conſuetudinario, even in the Biſhops Triennial year, ſine Viſitatione, on the Archdeacons part.
(11.) To this purpoſe Remarkable is that Caſe of Proxies, which Sir John Davis, Trin. 2 Jac. in the Exchequer …f Ireland, Enter le Roy & Sr. Ambr. Forth, Dr. of Law. Davis Rep.the Kings Attorney General in Ireland, reports to have been there Reſolved and Adjudged. The Caſe was this; The Biſhop of Meth, before the diſſolution of Monaſteries, had a Proxy of fifteen ſhillings four pence payable yearly out of the Commandry of Kells in the County of Meth, parcel of the Poſſeſſions of the Hoſpital of St. John of Jeruſalem in Ireland; and one other Proxy of twenty ſhillings payable yearly out of the Impropriate Rectory of Trevet in the ſame County, parcel of the poſſeſſions of the Abbey of Thomaſcourt in the County of Dublin. In the thirty third year of King H. 8. the ſaid Hoſpital and Abbey were ſuppreſſed and diſſolved, and all the poſſeſſions of both the ſaid Houſes were veſted in the actual poſſeſſion of the Crown by Act of Parliament: But in the ſaid Act there is an Expreſs, Saving the Proxies to all Biſhops and their Succeſſors. Afterwards the Biſhop of Meth and his Clergy (for that Biſhoprick hath not any Dean and Chapter) by Deed Inrolled, Dated 16 March 36 H. 8. granted to the ſaid Proxies (inter alia) to King H. 8. his Heirs and Succeſſors; the King being at the time of the Grant, and after, in the actual poſſeſſion of the ſaid Commandry and Rectory, out of which the ſaid Proxies were payable. Afterwards Queen Elizabeth, by her Letters Patent dated Primo Novemb. in the thirty third year of her Reign, demiſed the ſaid Commandry and Rectory to Dr. Forth. And now whether he ſhall be charged with theſe Proxies, and the Arrearages thereof, after the commencement of the Leaſe, was the Queſtion; And it was Adjudged, that he ſhould be charged therewith. In the Argument of this Caſe there were Three points moved and debated; (1) Whether the Proxies were wholly extinct by the ſuppreſſion and diſſolution of the ſaid Religious houſes, notwithſtanding, the ſaid Saving in the Act of Diſſolution? (2) Whether the Biſhop could grant the Proxies to the King? (3) Whether the Proxies in the hands of the King were extinct by the Unity of Poſſeſſion? For the Firſt point, it was Objected by Sir Ambroſe Forth's Counſel, That the Proxies were extinct by the ſuppreſſion and diſſolution of the Religious houſes: For that the Viſitation of the Religious houſes were the ſole cauſe of the payment of the Proxies; Et ceſſante cauſa ceſſat effectus. For the Religious houſes being gone and diſperſed, they ſhall not be afterwards ſubject to Viſitation, and then when the Viſitation doth ceaſe, the Proxies, being only Exhibition given to the Viſitor for his Travelling charges, ſhall ceaſe alſo; For Procuratio (as the Canoniſts define it) eſt Exhibitio ſumptuum neceſſariorum facta Praelatis, qui Dioeceſes peragrando Eccleſias ſubject as Viſitant. Yet it was agreed, That the Viſitation doth not ceaſe immediately upon the Surrender, or by the Act of Parliament, which gives the Religious houſes and their Poſſeſſions to the Crown; for by that their Corporations are not diſſolved: as was held in the Caſe of the Dean and Chapter of Norwich. Co. par. 3. 15 Aſſ. p. 8. 32 H. 8. Br. Corporations 78. But when the Religious perſons were diſperſed and had relinquiſhed their Habit, Rule, and Order, for which they were Viſitable, then their Corporation was utterly diſſolved, and thereupon the Viſitation ceaſes. And in this caſe they reſembled a Proxie due for Viſitation to an Annuity for Counſel or ſome other Service to be done: if the Counſel or the Service be withdrawn, the Annuity determines. So if a Rent-charge be granted for a Way, ſtop the Way and the Rent-charge ſhall be ſtopt alſo, 9 Ed. 4. 19. 15 Ed. 4. 2. 21▪ Ed. 3. 7. So where a Corodie is granted for certain Service to be done, the omiſſion of the Service determines the Corody, 20 Ed. 4. fo. ult. It was alſo ſaid, That the duty is not Annual but Contingent, and payable only upon every Viſitation. And for the [Saving] they ſaid, it was a Flattering Saving, which could not preſerve the Proxies in being, which the Law had extinguiſhed; as was held 14 Eliz. Dyer 313. That the tenures of the Obit or Chauntry-Lands held of the Subjects are extinct by the Act of 1 Ed. 6. notwithſtanding the Saving in the ſaid Act, propter abſurditatem: So the Proxies in this Caſe ſhall be extinct propter abſurditatem. For as it is abſurd, that the King ſhould be ſubject to Attendance in reſpect of a Tenure: ſo it is abſurd, that the King ſhould be ſubject to Viſitation, or to any duty in reſpect thereof. Of the ſame nature there are many Savings put in Walſingham's Caſe. Plow. Com. 563. which are there called Flattering Savings. As to the Second point it was objected, That the Biſhop could not grant theſe Proxies to the King for two Reaſons; the one drawn from the perſon of the King, the other from the perſon of the Biſhop: (1) For the King, Admit that he were capable of ſuch a Spiritual Office, as to be a Viſitor of Religious perſons, yet he ſhall not have Proxies, by reaſon of the Inconveniency and Indecency, and alſo for the Impoſſibility thereof; For it is neither Convenient nor Decent, that the poor Religious perſons ſhould bear the Charges of the King; And it is alſo Impoſſible, for by the Canon Law, Procuratio exhibenda eſt ſecundum qualitatem perſonae Viſitantis; and the Majeſty of the perſon of the King, and the grandure of his Train ſuch, that by preſumption of Law no private perſon can bear his neceſſary charges, or make him entertainment anſwerable to the quality of his perſon. (2) For the Biſhop, Although he may grant his Temporal poſſeſſions with the aſſent of his Chapter or Clergy, yet thoſe duties which he hath by the prerogative of his Epiſcopal Chair, or as incident to his Spiritual Function, he may not grant; And they by the Rule of the Canon Law are of Three ſorts, viz. (1) Subſidium Cathedrarium, which is a duty of Prerogative and Superiority. (2) Quarta Epiſcopalis, which was given to him for Reparation of Churches. (3) Procurationes, for his Viſitation, as aforeſaid, which is a perquiſite or profit of his Spiritual Juriſdiction. As to the Third point, they ſaid, That although a Proxie is a Perſonal thing, payable only in reſpect of perſons Viſitable, yet admit that theſe Proxies are become Real, and that the Commandry and Rectory are charged with theſe Proxies, then the unity of poſſeſſion doth extinguiſh them in the hands of the King, as a Seignory, Rent-charge, Common, and the like, are extinguiſhed by the purchaſe of the Terre-tenant, if he hath the like Eſtate in the Land, and in the thing which charged the Land. And to this purpoſe was cited the Caſe of 2 H. 4. 19. a. where a Prior had an Annuity out of a Parſonage by Preſcription; the Parſonage is after appropriate to the Priory, the Annuity is extinguimed for ever. But on the other ſide, it was anſwered by the Kings Council, and Reſolved by the Court, That the ſaid Proxies were not extinguiſhed by the diſſolution of the ſaid Religious houſes, but were well preſerved and ſaved to the Biſhop; and the Biſhop had well granted them to the King, and the unity of poſſeſſion in the hands of the King made but a Suſpenſion and no Extinguiſhment of the ſaid Proxies. (1) As to the Firſt point, it was firſt obſerved, that theſe Proxies had not their original in the primitive Church; for St. Paul, in viſiting all the Churches which he had planted in Aſia and Europe, demanded not any Proxies, but laboured with his own hands for his ſubſiſtance, leſt he ſhould be burthenſom to the Churches. Yet long after this, the Canon Law, which declares that Proxies are due to Biſhops in their Viſitations, ſays, that it is agreeable to the doctrine of St. Paul, ut à quibus ſpiritualia recipimus, eiſdem Temporaliae communicemus. Inſtit. Jur. Can. l. 2. c. de Cenſib. It was alſo obſerved, that that which we call Proxie or Procuracy, is called by the Canoniſts, Procuratio, for that upon every Viſitation the perſons viſitable procurant neceſſary Proviſions for the Viſitors; which Proviſions at firſt were made in Victuals, viz. in Eſculentis & Poculentis, but that was with moderation and temperance, Ne jejuniorum doctrinam rubentibus buccis praedicant; But afterwards, when the pomp and exceſs of Viſitors required ſuch proviſions as were grievous and intolerable to the Churches and Religious houſes, then every Church and ſuch Houſe was reaſonably Taxed, and for that every Proxie was reduced to a certain ſum of money, payable yearly, in the nature of a Penſion, to the Ordinary, who had power of Viſitation de mero Jure, as is ſaid 10 Eliz. Dyer 273. b. After the Procuration of Victuals was reduced to a certain ſum, the Churches and Religious houſes paid it to the ordinary yearly, albeit he made not any Viſitation: And ſo the Rule of Ceſſante cauſa ceſſat effectus doth not hold in this caſe. Theſe certain ſums of money which come in lieu of Proxies, and retain the name of Proxies, are by ancient Compoſition made parcel of the certain and ſettled Revenues of the Biſhop, do remain for ever, and are not ſubject to extinguiſhment. And at this day the King himſelf pays and allows Proxies out of all the Impropriations which he hath in his poſſeſſion; for which reaſon in every Leaſe made by the King of a Rectory Impropriate, there is a Covenant on the Leſſee's part, that he ſhall bear and pay all Proxies, Synodals, Penſions, &c. And as for the [Saving] in the Act of 33 H. 8. cap. 5. it is not an idle or Flattering Saving, but real and effectual: for it was agreed before, that theſe Proxies were in being at the time of making the Act, and are not extinguiſhed by the Surrender of the Religious houſes; for their Corporations are not diſſolved till the Religious perſons have relinquiſhed their houſes and are diſperſed. And ſuch things as were in being at the time of making the Act, may well be preſerved and ſaved by the Act; albeit the things which were extinct before, cannot be revived by a Saving, without expreſs words of Grant and Reſtitution. As to the Second point, it was Reſolved, That the Proxies in their original nature being Duties payable for Viſitation, are grantable to the King, and the King is capable of ſuch a Grant, ſpecially when the ſaid duties are converted to a ſum of money certain, in the nature of a Penſion or Annuity. For by the Ancient Law of the Realm, the King had power to Viſit, reform, and correct all Abuſes and Enormities in the Church: And by the Statutes made in the time of King H. 8. the Crown was but remitted and reſtored to his ancient Juriſdiction, which had been uſurped by the Biſhop of Rome. 33 Ed. 3. tit. Ayd del Roy 103, Reges ſacro oleo uncti Spiritualis Juriſdictionis ſunt Capaces. And Proxies are profits of the Juriſdiction, 10 H. 7. 18. Rex eſt mixta perſona cum Sacerdote: So the King ſhall have Tithes by the Common Law, whereof no meer Lay-perſon was capable, 22 Aſſiſ. pl. 75. 21 H. 7. 1. The King himſelf may Viſit his Free Chappels and Hoſpitals, 8 Aſſ. p. 29. N. Br. 42. a. And Caſſanae, in Catol. Glo. mund. par. 5. Conſ. 24, cites a Text of the Canon Law, viz. Quod omnes Reges dicuntur Clerici, alſo another Text, which faith; Quod Cauſa Spiritualis committi poteſt Principi Laico. And whereas it was ſaid, that in reſpect of the grandeur of the King and his Train, competent Proxies cannot be provided for him, and by conſequence a Grant thereof cannot be made to him; that Objection is removed, in that the Proxies at the time of that Grant was reduced to certain reaſonable ſums of money. Alſo the Rule of the Canon Law was not rightly and fully cited before; for the Rule is, Procuratio exhibenda eſt ſecundum qualitatem perſonae viſitantis, & ſubſtantiam Viſitatorum. It was alſo Reſolved, that the Biſhop with the aſſent of his Clergy, might well grant the Proxies to the King, for that the Law hath qualified the perſon of the King to receive ſuch a Grant, albeit it be ſuch a Prerogative of the Biſhop as may not be aſſigned to any other perſon: As the Creation-money of a Duke or Earl may be granted and ſurrendred to the King, although it can be granted to a Subject. Alſo the Proxies being now reduced to certain ſums of money, and ſo made part of the certain ſettled and perpetual Revenue of the Biſhop, may be granted by him as well as a part of the Tithes, or an Annuity, or any of his Rents, Services, or other Hereditaments Temporal. And as to the Third point it was alſo Reſolved and Adjudged, That the Unity of Poſſeſſion of the Proxies with the Rectories impropriate and religious Houſes, out of which the Proxies are payable, do not extinguiſh the Proxies in the hands of the King, but ſuſpends the payment of them tantum pro tempore, quouſque, or until the King by his Grant ſhall ſever the one from the other. To conclude, The Caſe of Tithes is parallel to the Caſe of Proxies, and agrees therewith in all points; For as Inſtruction was the cauſe of the payment of Tithes: So Viſitation, which is ever accompanied with Inſtruction, Littl. ca. de Frankalmoigne 30. b. was the cauſe of the Proxies. And as Tithes are now due and payable to Lay-perſons which have purchaſed Impropriate Rectories, although they do not give any Inſtruction: So Proxies are due and payable to Ordinaries, out of the Impropriations and Religious houſes diſſolved, although their Viſitation ceaſes. And as none can preſcribe de non decimando, as is commonly held in the Common Law: So the Canon Law hath a Rule, Quod nulla eſt adverſus Procurationem praeſcriptio. Inſt. Jur. Canon. lib. 2. cap. de Cenſibus. Alſo Proxies, which reſemble Tithes in other points, may be well compared to them in this point, viz, That they ſhall not be ſubject to extinguiſhment by unity of poſſeſſion.