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Confift- Consult. part 1. 9.3.

"fairs of the Church without their Advice,

as appears by the Clause in his Bulls (de Fra

trum noftrorum Confilio) by the Counsel of our · Brethren. But it is warmly debated amongst

the Canonists how far the Pope is bound to (take and follow their Advice. (f) Cardinal (f) De Sacr. Palæotus faith, some went so far as to null

all Acts that are done without it, chiefly for Art. 7.

this Reason, because those who deny the ne'cessity of it, yet all grant it to be fit and De

cent, (de Honestate) and therefore the Acting without it is against what is Decent and a

greable (contra Honeftatem) which, say they; c renders the Act void in Law. But altho’he • denies the Consequence, yet he grants that

there is an Obligation on the Pope to take " the Advice of his Consistory, which he

proves by many Arguments in the (g) fore-(8) Art. 2 'going Sections: And the first is from the • Parity of Reason as to a Bishop and his

Chapter; who faith he by common Right (Jure Communi) is bound to make use of it ;

and the College of Cardinals hath the same ' respect to the Pope which the Chapter hath

to a Bishop; who are by the Canon Law

Stiléd the Council and Senate of the Bishop as (a) Barbosa and (b) Antonius Frances confess. (a) De can. & < But that which is far more Material to us, n. 1.

Dignitat. C. 42. is, that by our Common Law it is said, That (6) De Ecclef. the Dean and Chapter were appointed as a Coun- n 93194, 95. cil to the Bishop, with whom he is to consult in

Cases of difficulty, to which purpose every Bishop " has his Chapter (habet Cathedram) who are to consent to every grant, &c. (c) And in the (c) Coke Rep. 3.

Dean & Chapter • Case of the Dean and Chapter of Norwich, their

of Norwich. being is declared to be so necessary, that altho' they should depart with their possessions, yet for necessity { the Corporation doth remain, as well to assist the


Cathed. C. 14.

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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 also the College of Presbyters which are now with us called the Dean and Chapter are a necessary Council to the

Bishop whose Advice and Consent he ought · still to have not only to consent to every Grant, &c.

but to assist him in his calling or Funition, that is in his Episcopal Power and Jurisdi&tion, when he acts as a Spiritual Father and Judge. But how sever the Right be, the Practice is quite otherwise, and the asistance of the Dean and Chapter is now called in only to the passing of Grants relating to the Bishops Temporalities or disposing of Offices, but never with

any regard to his Spiritual Calling or Jurif(d) Supr. ch. 6.

diction (d) as has been already observed. So that a sole Jurisdiction 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 Ecclesiastical Law, and the Common Law of this Realm are all against it. And not only the Bishop himself, which perhaps might be in some measure vindicated, but even his Vicar or Deputy, who is commonly a meer Lay-man exercises the full Power of all Ecclesiastical Jurisdiction solely without any Council of Assessors. A Practice which has

been so long used that it may now Plead Pre(e) 37 Heno S. scription, and has the Authority of an (e) A&

of Parliament to License it: I say to License it, for the Act only says that Lay-men may exercise such Jurisdiction, but does not enjoyn or command the Bishops to commit to them any such Power or Jurisdiction. And therefore is only a License or Permission by the way of Toleration, and does not seem to have made any great alteration in the Case, and it was long since the making this Statute that my Lord Coke declared the Dean and Chapter to be of necessity, a Corporation to assist the Bishop in his calling or Spiritual Functions.


C, 17

This Authority which is now exercised by the Bishops Vicars under the several names of Vicars-General, Chancellors, Commissaries and officials (who also take the Liberty to appoint their Deputies or Surrogates who likewise exercise sole Jurisdiction, To that we have many matters transacted by the Deputies Deputy) is a thing which has been found fault with by our Dislenters of all forts, and which they have quarrelled with as Popish, and indeed is the only Office retained in our Church that appears to have no better Original, being instituted as has been already shewed about the tenth Century in some 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 imposed what it pleased on the World : And the effect of it was the putting down by degrees of Diocesan Synods and Episcopal Chapters, where for a thousand years together Ecclesiastical Causes had been wont to have been decided. So that now, (f) as Duarenus an (f) De Benefic. ( eminent Civilian complains, Ecclesiastical 1.1.6. 4.

Jurisdiction is not exercised by Bishops, as it

was wont to be in the primitive Church, ' with great Gravity and Decency, with Le$nity also and Simplicity, but by certain sub

stituted Lawyers commonly called Officials, whose Courts far surpass all Temporal and Lay-Tribunals in Calumnies, Impostures and



(8) Ibid. c. 11. "Quirks of Law. For formerly, says he (8)

in another place, Diocesan Synods were al« sembled once or twice a Year, that the Bi

shop together with his Presbyters might confult of the Discipline of the Clergy, of Ecclesiastical Causes and of Divine Doctrine. For without this Assembly or as it were

Ecclesiastical Senate the Bishops feldom de' termined any thing of great Moment. But (this day we scarce retain the Shadow of this

( excellent Constitution. And for this he (b) Caus. 15.

cites (h) Gratian whose 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 observed 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 Usurpation proving Ecclesiastical Judicature to have been exercised by the Bishop in Conjunction with his Presbyters and no otherwise; one or two of which I cannot forbear to recite in this place.

In the second 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,

say those Holy Fathers, Fragitanus a Presbyter of the Church of Corduba, to have been heretofore unjustly deposed by his Bishop

and condemned to Banishment tho’ Innocent. "Whom restoring again to his Order, we

have thereupon decreed to prevent such presumption of any of us for the future, that according to the determination of the an

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cient Fathers, none of us shall hereafter dare to depofeany Priest or Deacon without a Trial in Council. For there are many who condemn them without Examination, by a Tyrannical Power, and not by Canonical Authority. And as they advance some through Favour, so others they depress thro' Hatred and Envy, and condemn them on light Suspicions whose 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 Ecclesiastical Honour, and consecrated at the Altar ? Who ought not indeed to be

condemned by one, nor to be deprived of * the Privileges of their Dignity by a single

Judge ; but being brought before the Synod

shall be judged there, and what the Canon "prescribesconcerning them ought to be decreed.

St. Gregory the Great writing a Decretal Epistle to John Bishop of Panorma about the year 601 says thus to him. If you hear any

thing of a Clergy-man which may justly offend you, do not easily believe it : neither 6 let an unknown matter provoke you to Re

venge: but let the Truth be examined in the « presence of the Elders of your Church: And " then if the quality of the Case require it,

let the Delinquent be punished by Canonical Censure. And long before this, in the fourth Council


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