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9. Not wearing the Surplice, has been adjudg’d a fufficient Cause of Deprivation ; no less a Man than a Dean of Chrift-Church, Tho. Sampo fon, in '1504, is said to have fallen under this Censure, upon this Account, in Q. Elizabetb's Reign.
10. Incontinency, is commonly said to be a Crime of the same nature, in the Canon-Law; but 'tis much more evident, that a Man was de privable for being Married by the Old CanonLaw, than that he was liable to this Punishment for Fornication. The Words of Lyndwood, an unmarried Clergy man and Canonift, are very observable on this Occasion; A Clerk ought not to be deprived for fimple Fornication, by the Canon favourably interpreted, ibor perbaps it may be otherwife by the rigour of ibe Canon. The Constitution of Otho is to this Effect: That a Clergy man, for Fornication, $ shall be suspended, both ab Officio & Beneficio, Sin case he do not disiniss his Concubine, and
make Satisfa&tion for his Crime ; and that, if the meddle with the Benefice, or Office, during Suspension, he shall be depriv'd. Licet ad to Prof. & Glol:
But, by Stat. 31 H. VIII. c. 14, the Clergyman that kept a Concubine, for the first Offence was depriv’d, and the second Offence was Felony. But this was repeal'd the next Year, and another Akt made, whereby, for the first Offence, the Clerk forfeited all his Personal Estate, and the Profits of all his Livings, but one. For the second Offence, all his Real and Personal Estate, Benefices, Promotions, &c. For the third Of fer.ce, the like Forfeiture, and perpetual Impilonment,
'Tis true, this last A& forbids Cohabiting with a Wife, as well as a Concubine ; but by Stat. 2, 3 Edw. VI. c. 21. and 5,6. c. 12. and 1 Jac. c. 25. it is repealed, so far forth as it prohibits the former, and is therefore only in Force as to the latter, that is, keeping a Concubine. See Pars. Counsel. p. 119, 8c.
11, If a Clergyınan be Excommunicated for Contumacy, and remain fo for 40 Days, he shall be depriv'd. Godot. c. 27. Se&t. 19.
12. Bastardy, is likewise a Note of Infamy, for which a Clerk may be turn'd out of his Benefice; but here the King's or Archbishop's Difpensation faves him: And indeed inost of the 12 last mention'd Caufes of Deprivation cease, in case the King think fit to pardon the Délina quent. But no Pardon from the King can restore a Clerk to his Living, where an Act of Par. Jiament has made it void, or where there is an Inability in the Person to discharge his Office. Watfi : 5, 6. p. 28, 36, 37.
By our last Canons, and by the antient Canon, Law, no one can pronounce Sentence of Deprivation, or Deposition on a Clergyman, but the Bishop himself; but the Gloffators do so understand these Canons, viz. that none but the Bishop can deprive him of his Right or Title, if he have committed any Crimne that deserves such Censure ; but in case the Canon have already declard him depriv'd de Jure, and the Faît be notorious, as the taking a second Living
without Difpenfation, when the first is under 81. Value, or the like, then an Official may pass Sentenceg. to as a&ually to dispoffess him; and this I take to be the prefent Practice. G3
If a Clergyman having Sentence of Depriva. tion pass’d upon him, by his immediate Ordi. nary, do appeal to a superior Court; the Sen. tence is by this means suspended, and shall take no Effect, if it be not affirm'd by the Court, to which he has appeald. Godol. c. 27. Sect. 17.
Some, indeed, think it unreasonable, That Men should be turn'd out of tbeir Freehold by a Canon : But it ought to be consider'd, that the Canon-Latu, so far as it is receiv'd, is in ef. fect a part of the Common-Law of the Nation, as being founded upon immemorial Custom and Practice; and that the Old Canon-Law, fo far forth as it ever was receiv’d, and does not con. tradiêt the Holy Scripture, the King's Preroga. tive, or any Law or Custom of England, is ftill in force. (Stilling fleet's Eccl. Cases, from pag. 348, to pag. 376.) And that Bishops and Ordi. naries have been in possession of this Power for many Ages past; and, indeed, as long as there have been Churches and Parishes in England; that neither our Parliaments nor Princes, did ever yet see any just Cause to divest them of this Power; but have, on several Occasions, own'd and confirm'd it. Thus, for Instance, the A&t of 1 Eliz.c. 2. approves of those Cenfures and Deprivations, formerly used by Bishops, and Persons having Ecclefiaftical Jurisdiction, and declares, that they: Mall bave fuli Power and Authority to punish the same Crime, which was Disobedience to the Queen's Ecclefiaftical Laws, for the Time to come. There is a like Reserve in the Act against Simony, 31 Eliz. 6. viz. that nothing in this Act contain'd, mall resirain any Punishment inflicted by the Laws
Ecclesiastical, for any Offence in this Act mens tion'd, but the same shall remain in Force, and be put in due Execution, as it might before the making of this A&t. Where the Canons are calld Ecclefiaftical Laws, (for there was, before this, no Law against Simony, but what was contain'd in them) 'tis acknowledgʻd that they might be put in Execution before this Act; and yet Deprivation was one Censure provided against Simony, by those Canons, and might be infiliated on the Clerk, not only for the Living corruptly obtain’d, but for all other Benefices and Promotions whatever ; and if it may still be inflicted, then all Deprivation by Canon is not unreasonable, if the Prince and Parliament may judge.
There never was so much Complaint of the Abuse of this Power of Deprivation, as during Archbifhop Laud's Time, who was advanc'd to the See of Canterbury, A.D. 1633. yet upon King Charles's Restauration, all Ecclefiastical Jurisdiction was restord to the state that it was in by Law before 1639.
Archbishop Laud was executing this Authority upon delinquent Clergymen, the five Years preceding 1639. And 'tis strange, that if the Parliament had thought these Proceed. ings Illegal, they should look no farther backward, especially in that very Act where they fet aside the Canons of 1640. and the High Coma mifron Court, viz. 13 Car. II. c. 12.
Lesser Degrees of Cenfure for smaller Neglects in Clergymen, are Suspensio ab Oficio, and in some Cases, tho' very rarely, Suspensio ab Officio 3 Beneficio. Before the Reforma
tion, the Bishop, for some little Omissions, was enjoin’d by his Metropolitan, to go without fome part of his Habit, often mention'd in the Provincials.
CHA P. XII.
of Sequestration, and Commendani.
SEquefiration is an authoritative AA of the
Judge of any Court, whereby he commits the Custody of any Thing (as for Instance, some valuable Chattel left by a Defun&t) or Perfor, (as a Maid to whom two young Men lay claim, as precontracted to them.' See Lynd. L. 2. §.4. p. 135.) to fome faithful and responsible Hands; till it does appear to whom they do of Right belong, or till the Judges Injunctions be exco cuted.
If an Incumbent, having been admonish'd by his Ordinary to repair the Chancel, or Parsonage or Vicarage Houfe, do neglect to do it, the Bishop may cause the Fruits, or Profits of the Living, or fome part of them (rarely more than a fifth) to be sequestred; that is, to be receiv'd by some trusty Person, and applied by him to the ma. king good the Repairs, he returning the overplus, if any be, to the Incumbent. See Const. Otbó de Domib. Ecclef. Some have said, That the Impropriator's Tythes may be fequeftred for the maintaining of the Chancel, if need be; and 'cis certain they might, while they were in the hands of the Monks, and there is no