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9. Not wearing the Surplice, has been adjudg'd a fufficient Caufe of Deprivation; no lefs a Man than a Dean of Chrift-Church, Tho. Samp fon, in 1564, is faid to have fallen under this Cenfure, upon this Account, in Q. Elizabeth's Reign.

10. Incontinency, is commonly faid to be a Crime of the fame nature, in the Canon-Law; but 'tis much more evident, that a Man was deprivable for being Married by the Old CanonLaw, than that he was liable to this Punishment for Fornication. The Words of Lynd wood, an unmarried Clergyman and Canonift, are very obfervable on this Occafion; A Clerk ought not to be deprived for fimple Fornication, by the Canon favourably interpreted, tho' perhaps it may be otherwife by the rigour of the Canon. The Conftitution of Otho. is to this Effect: That a Clergyman, for Fornication, fhall be fufpended, both ab Officio & Beneficio, in cafe he do not difinifs his Concubine, and make Satisfaction for his Crime; and that, if he meddle with the Benefice, or Office, during Sufpenfion, he fhall be depriv'd. Licet ad Prof. & Gloff.

But, by Stat. 31 H. VIII. c. 14, the Clergyman that kept a Concubine, for the first Offence was depriv'd, and the fecond Offence was Felony. But this was repeal'd the next Year, and another Act made, whereby, for the first Offence, the Clerk forfeited all his Perfonal Eftate, and the Profits of all his Livings, but one. For the fecond Offence, all his Real and Perfonal Eftate, Benefices, Promotions, &c. For the third Of fence, the like Forfeiture, and perpetual Imprifonment,

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'Tis true, this laft A&t forbids Cohabiting with a Wife, as well as a Concubine; but by Edw. VI. c. 21. and 5, 6. c. 12. and 1 Jac. c. 25. it is repealed, fo far forth as it prohibits the former, and is therefore only in Force as to the latter, that is, keeping a Concu bine. See Parf. Counsel. p. 119, &c.

Stat. 2, 3

11, If a Clergyman be Excommunicated for Contumacy, and remain fo for 40 Days, he shal be depriv'd. Godol. c. 27. Sect. 19.

12. Baftardy, is likewife a Note of Infamy, for which a Clerk may be turn'd out of his Benefice; but here the King's or Archbishop's Difpenfation faves him: And indeed most of the 12 laft mention'd Caufes of Deprivation ceafe, in cafe the King think fit to pardon the Delinquent. But no Pardon from the King can reftore a Clerk to his Living, where an Act of Parliament has made it void, or where there is an Inability in the Perfon to discharge his Office. Watf. c. 5, 6. p. 28, 36, 37.

By our laft Canons, and by the antient CanonLaw, no one can pronounce Sentence of Depri vation, or Depofition on a Clergyman, but the Bishop himfelf; but the Gloffators do fo under ftand thefe Canons, viz. that none but the Bifhop can deprive him of his Right or Title, if he have committed any Crime that deferves fuch Cenfure; but in cafe the Canon have already declar'd him depriv'd de Jure, and the Fact be notorious, as the taking a fecond Living without Difpenfation, when the first is under 81. Value, or the like, then an Official may pafs Sentence, fo as actually to difpoffefs him; and this I take to be the prefent Practice.

If a Clergyman having Sentence of Depriva tion pafs'd upon him, by his immediate Ordi nary, do appeal to a fuperior Court; the Sentence is by this means fufpended, and fhall take no Effect, if it be not affirm'd by the Court, to which he has appeal'd. Godol. c. 27. Sect. 17.

Some, indeed, think it unreafonable, That Men fhould be turn'd out of their Freehold by a Canon: But it ought to be confider'd, that the Canon-Law, fo 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 tradict the Holy Scripture, the King's Prerogative, or any Law or Cuftom of England, is fill in force. (Stilling fleet's Eccl. Cafes, from pag. 348, to pag. 376.) And that Bishops and Ordinaries have been in poffeffion of this Power for many Ages paft; and, indeed, as long as there have been Churches and Parishes in England; that neither our Parliaments nor Princes, did ever yet fee any juft Caufe to diveft them of this Power; but have, on feveral Occafions, own'd and confirm'd it. Thus, for Inftance, the A&t of 1 Eliz. c. 2. approves of thofe Cenfures and Deprivations, formerly ufed by Bishops, and Perfons having Ecclefiaftical Jurifdiction, and declares, that they hall have full Power and Authority to punish the fame Crime, which was Difobedience to the Queen's Ecclefiaftica Laws, for the Time to come. There is a like Referve in the Act against Simony, 31 Eliz. 6. viz. that nothing in this Act contain'd, fhall refrain any Punishment inflicted by the Laws

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Ecclefiaftical, for any Offence in this A&t mention'd, but the fame fhall remain in Force, and be put in due Execution, as it might before the making of this Act. Where the Canons are call'd Ecclefiaftical Laws, (for there was, before this, no Law against Simony, but what was contain'd in them) 'tis acknowledg'd that they might be put in Execution before this A&t; and yet Deprivation was one Cenfure provided against Simony, by thofe Canons, and might be inflicted on the Clerk, not only for the Living corruptly obtain'd, but for all other Benefices and Promotions whatever; and if it may ftill be inflicted, then all Deprivation by Canon is not unreafonable, if the Prince and Parliament may judge.

There never was fo much Complaint of the Abuse of this Power of Deprivation, as during Archbishop Laud's Time, who was advanc'd to the See of Canterbury, A. D. 1633. yet upon King Charles's Reftauration, all Ecclefiafticat Jurifdiction was reftor'd to the ftate that it was in by Law before 1639.

Archbishop Laud was executing this Autho rity upon delinquent Clergymen, the five Years preceding 1639. And 'tis ftrange, that if the Parliament had thought thefe Proceedings Illegal, they fhould look no farther backward, efpecially in that very Act where they fet afide the Canons of 1640. and the High Commifton Court, viz. 13 Car. II. c. 12.

Leffer Degrees of Cenfure for fmaller Neglects in Clergymen, are Sufpenfio ab Officio, and in fome Cafes, tho' very rarely, Sufpenfio ab Officio 3 Beneficio. Before the Reforma

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tion

tion, the Bishop, for fome little Omiffions, was enjoin'd by his Metropolitan, to go without fome part of his Habit, often mention'd in the Provincials.

CHAP. XII.

of Sequeftration, and Commendanı.

SEquestration is an authoritative A&t of the Judge of any Court, whereby he commits the Cuftody of any Thing (as for Inftance, fome valuable Chattel left by a Defunct) or Perfon, (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 refponfible Hands; till it does appear to whom they do of Right belong, or till the Judges Injunctions be exe. cuted.

If an Incumbent, having been admonish'd by his Ordinary to repair the Chancel, or Parfonage or Vicarage Houfe, do neglect to do it, the Bishop may caufe the Fruits, or Profits of the Living, or fome part of them (rarely more than a fifth) to be fequeftred; that is, to be receiv'd by fome trufty Perfon, and applied by him to the ma king good the Repairs, he returning the overplus, if any be, to the Incumbent. See Conft. Otho de Domib. Ecclef. Some have faid, That the Impropriator's Tythes may be fequeftred for the maintaining of the Chancel, if need be; and 'tis certain they might, while they were in the hands of the Monks, and there is no

Law

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