Confift- Confult.

'fairs of the Church without their Advice, as appears by the Claufe in his Bulls (de Fratrum noftrorum Confilio) by the Counsel of our 'Brethren. But it is warmly debated amongst 'the Canonifts how far the Pope is bound to 'take and follow their Advice. (f) Cardinal (f) De Sacr. "Paleotus faith, fome went fo far as to null part 1.9.3. all Acts that are done without it, chiefly for Art. 7. 'this Reason, because those who deny the ne'ceffity of it, yet all grant it to be fit and De'cent, (de Honeftate) and therefore the Acting 'without it is against what is Decent and a'greable (contra Honeftatem) which, fay they; renders the Act void in Law. But altho' he • denies the Confequence, yet he grants that there is an Obligation on the Pope to take 'the Advice of his Confiftory, which he proves by many Arguments in the (g) fore-(g) Art. 2. going Sections: And the firft is from the Parity of Reafon as to a Bishop and his ८ Chapter; who faith he by common Right (Jure Communi) is bound to make use of it; ' and the College of Cardinals hath the fame refpect to the Pope which the Chapter hath to a Bishop; who are by the Canon Law Stiled the Council and Senate of the Bishop as (a) Barbofa and (b) Antonius Frances confefs. (a) De can. & But that which is far more Material to us, n is, that by our Common Law it is faid, That (b) De Ecclef. the Dean and Chapter were appointed as a Council to the Bishop, with whom he is to confult in Cafes of difficulty, to which purpofe every Bishop has his Chapter (habet Cathedram) who are to • confent to every grant, &c. (c) And in the (c) Coke Rep. 3. • Cafe of the Dean and Chapter of Norwich, their Dean & Chapter being is declared to be fo neceffary, that altho' they fhould depart with their Poffeffions, yet for neceffity the Corporation doth remain, as well to affift the

Bifhop

Dignitat. c. 42.

Cathed. c. 14.

n 93194, 95.

of Norwich.

Bishop in his calling, as to give their affent, &c. Thus has this most learned Prelate proved by undeniable Arguments, that by the Practice of the Primitive Church, by the Canon Law and by our own Common Law alfo the College of Presbyters which are now with us called the Dean and Chapter are a neceffary Council to the Bishop whofe Advice and Confent he ought ftill to have not only to consent to every Grant, &c. but to affift him in his calling or Function, that is in his Epifcopal Power and Jurifdiction, when he acts as a Spiritual Father and Judge. But how fever the Right be, the Practice is quite otherwise, and the affiftance of the Dean and Chapter is now called in only to the paffing of Grants relating to the Bishops Temporalities or difpofing of Offices, but never with any regard to his Spiritual Calling or Jurifdiction (d) as has been already obferved. So that a fole Jurifdiction is now Exercised by the Bishop without the concurrence of his Chapter or College of Presbyters, notwithstanding the Primitive Practice of the Church, the Canon or Ecclefiaftical Law, and the Common Law of this Realm are all against it. And not only the Bishop himself, which perhaps might be in fome measure vindicated, but even his Vicar or Deputy, who is commonly a meer Lay-man exercises the full Power of all Ecclefiaftical Jurifdiction folely without any Council of Affeffors. A Practice which has been fo long used that it may now Plead Pre(4) 37 Hen.. fcription, and has the Authority of an (e) A& of Parliament to License it: I fay to License it, for the Act only fays that Lay-men may exercife fuch Jurifdiction, but does not enjoyn or command the Bishops to commit to them any fuch Power or Jurifdiction. And there

(d) Supr. ch. 6.

C. 17.

fore

fore is only a Licenfe or Permiflion by the way of Toleration, and does not seem to have made any great alteration in the Cafe, and it was long fince the making this Statute that my Lord Coke declared the Dean and Chapter to be of neceffity, a Corporation to affift the Bishop in his calling or Spiritual Functions.

This Authority which is now exercised by the Bishops Vicars under the several names of Vicars-General, Chancellors, Commiffaries and Officials (who alfo take the Liberty to appoint their Deputies or Surrogates who likewife exercife fole Jurifdiction, fo that we have many matters tranfacted by the Deputies Deputy) is a thing which has been found fault with by our Diffenters of all forts, and which they have quarrelled with as Popifh, and indeed is the only Office retained in our Church that appears to have no better Original, being instituted as has been already fhewed about the tenth Century in fome Parts of Christendom, and not known in this Realm till about the twelfth Century, that is in the darkest times of Popery, and when the Papacy was at its hight and impofed what it pleafed on the World: And the effect of it was the putting down by degrees of Diocefan Synods and Epifcopal Chapters, where for a thoufand years together Ecclefiaftical Caufes had been wont to have been

८

decided. So that now, (f) as Duarenus an (f) De Benefic. eminent Civilian complains, Ecclefiaftical L. 6. 4. Jurifdiction is not exercised by Bishops, as it 'was wont to be in the primitive Church, ' with great Gravity and Decency, with Lenity alfo and Simplicity, but by certain fubftituted Lawyers commonly called Officials, whofe Courts far furpafs all Temporal and Lay-Tribunals in Calumnies, Impostures and 'Quirks

(g) Ibid. c. 11.

(h) Cauf. 15. 9.7.

с

Quirks of Law. For formerly, fays he (g) in another place, Diocefan Synods were af • fembled once or twice a Year, that the Bifhop together with his Presbyters might confult of the Difcipline of the Clergy, of Ecclefiaftical Caufes and of Divine Doctrine. For without this Affembly or as it were < Ecclefiaftical Senate the Bishops feldom determined any thing of great Moment. But this day we scarce retain the Shadow of this • excellent Constitution. And for this he cites (b) Gratian whofe Book contains that which is called the first Volume of that Body of Canon Law which was collected for the use of that part of the Church which in those times acknowledged the Authority of the Bishop of Rome, and contains all those Canons which were then customarily obferved in the Church. Now in this Collection in the place cited by Duarenus are several Canons very ancient, even much elder than the times of the Popes Ufurpation proving Ecclefiaftical Judicature to have been exercifed by the Bishop in Conjunction with his Presbyters and no otherwife; one or two of which I cannot forbear to recite in this place.

In the fecond Council of Sevil, Can. 6. (which Council was held Anno 619. which tho' later than those after mentioned is put in the first place) there is this Decree. We have found,

fay thofe Holy Fathers, Fragitanus a Presbyter of the Church of Corduba, to have been 'heretofore unjustly depofed by his Bishop and condemned to Banishment tho' Innocent. Whom reftoring again to his Order, we have thereupon decreed to prevent fuch prefumption of any of us for the future, that according to the determination of the an

⚫ cient

. cient Fathers, none of us fhall hereafter dare to depofe any Priest or Deacon without a Trial in Council. For there are many C who condemn them without Examination, by a Tyrannical Power, and not by Canonical Authority. And as they advance fome through Favour, fo others they deprefs thro' Hatred and Envy, and condemn them on light Sufpicions whofe Crime they cannot prove. For a Bishop may indeed alone confer the Dignity of a Presbyter or Deacon, but he alone cannot take it away from them. For if they who in a Temporal State have had the Honour to be made Free-men by their Lords cannot be reduced to Servitude unless they be publickly accused at the Pretors or Presidents Tribunal in the place of Judicature, how much rather ought those to have a fair legal Trial who are vested with Ecclefiaftical Honour, and confecrated at the Altar? Who ought not indeed to be 'condemned by one, nor to be deprived of the Privileges of their Dignity by a fingle Judge; but being brought before the Synod 'fhall be judged there, and what the Canon 'prefcribesconcerning them ought to be decreed. St. Gregory the Great writing a Decretal Epistle to John Bishop of Panorma about the year 601 fays thus to him. If you hear any thing of a Clergy-man which may juftly ' offend you, do not easily believe it: neither let an unknown matter provoke you to Re< venge: but let the Truth be examined in the < prefence of the Elders of your Church: And then if the quality of the Cafe require it, let the Delinquent be punished by Canonical Cenfure.

.

And long before this, in the fourth Council

of