Abridgment of Ecclesiastical Laws

CHAP. XVII.

Of Parsons and Parsonages.

• 1. Parson, what he is in the intendment of Law.
• 2. What is meant by Parson imparsonee.
• 3. The Freehold of Church and Glebe is in the Parson, what interest he hath in the Church-yard, and the Trees there growing; and whether he hath any in the Bells or Ornaments of the Church?
• 4. How he must be qualified that will be a Parson; and who is rendered incapable of being such.
• 5. Whether the Parson may demand anything by Custom, upon the Burial of one who dying in his Parish, was Buried elsewhere.
• 6. The words Parsonage, Church, Rectory, frequently used Synonymously; Pensions of Ecclesiastical cognizance.
• 7. A Case in Law touching a Parsons Obligation for Resignation.
• 8. Whether a Parsons acceptance of Rent makes his Predecessor's Lease good.
• 9. Prohibition to the High Commissioners of York, touching Articles exhibited before them against a Parson.
• 10. A Case in Law touching the Confirmation of a Lease made by a Parson.
• 11. Other Cases at the Common Law; relating to Parsons.
• 12. The Patron nothing to do in the Church during Plenarty.
• 13. By what words a Resignation of a Parsonage may be, or not.
• 14. Whether the Resignation of a Donative may be to the Donor, or how it may be departed with?
• 15. Whether the Parson may appoint the Parish Clerk?
• 16. A Bishop, Archdeacon, and Parson, are Spiritual Corporations and have a double Capacity.
• 17. All differences between Parsons and Vicars concerning the endowment of the Church, are cognizable in the Ecclesiastical Court.
• 18. Privileges of the Clergy.

(1.) THere is Parson [Persona ] and Parson imparsonee [Persona impersonata:] Parson properly signifies the Rector of a Parochial Church; because during the time of his Incumbency he represents the Church, and in the eye of the Law sustains the person thereof, as well in Suing, as in being sued in any Action touching the same . Originally the Parson was he that had the charge of a Parochial Church, and was called the Rector of that Church; but it seems he is most properly so called, that hath a Parsonage where there is a Vicarage Endowed. And yet it is supposed that Persona is the Patron, or in whom the Right of Patronage is, for that before the Lateran Council he had Right to the Tithes in regard of his having erected and endowed the Church which he had Founded. The Pastors of Parishes are called Rectors, unless the Praedial Tithes be Impropriated; and then they are called Vicars, Quasi vice fungentes Rectorum: and Curates are they who for certain Stipends assist such Rectors and Vicars, that have the care of more Churches than one.

(2.) Parson Imparsonee, is he that as lawful Incumbent is in actual possession of a Church Parochial, and with whom the Church is full, be it Presentative or Impropriate ; and seems also to be that person to whom the Benefice is given in the Patrons Right; for in some Books Persona impersonata is taken for the Rector of a Benefice Presentative and not Appropriated : Yet Dyer saith, That a Dean and Chapter are persons Imparsonees of a Benefice Appropriated to them ; and in another place plainly showeth. That Persona impersonata is he that is Inducted and in possession of a Benefice . So that persona seems to be termed impersonata, only in respect of the possession which he hath of the Benefice or Rectory, be it Appropriate or otherwise by the Act of another .

(3.) The Parson hath a Right unto the possession of the Church and Glebe, having the Freehold in himself, and may receive the profits, Tithes, Oblations, Obventions, and Offerings to his own use, without the Patrons or Ordinaries consent, who without his consent and agreement can do nothing during his incumbency to charge the Church or his Successors. And not only is the Freehold of the Church in the Parson, but he hath also the Right of the Churchyard and Glebe in him, whereof if he be put out of possession or disseised, he may have an Assize . Or if he be Ejected, he may have Trespass; and so may the Vicar have against a Stranger, if he be disseised of the Church-yard, but not against the Parson himself . For the Parson shall have an Assize or an Action of Trespass, of such things as are annexed unto the Church or Glebe, or for cutting down of the Trees, or doing of Trespass in the Churchyard or Glebe, the Right and interest thereof being in the Parson . But if the Bells in the Steeple, the Ornaments of the Church, or the like, be taken away, in that case the Action doth not belong to the Parson, but to the Churchwardens . Notwithstanding the Parsons Right and interest as aforesaid, yet he cannot cut down the Trees growing in the Church-yard of his Parish, save for the Repair of the Church . Or if a mere Stranger cut them down, no Suit can be thereon in the Spiritual Court for Dammages; for if Suit be there commenced in that Case for Dammages, no Consultation shall be . Nor can the Parson have Action for Seats in the Church taken away by a Stranger, because they are not fixed to the Freehold; but the Churchwarden may have Action in that case .

(4.) No man can be a Parson until he be a Priest in Orders, which he cannot be until he hath attained the Age of 24 years; Consequently therefore he must be of that Age ere he can be a Parson ; and is commonly called (when Inducted into a Church) the Rector thereof, and shall be accounted Proprietor of the Tithe of the Parish whereto the Church belongs, if the contrary be not shown . A man that is guilty of some Crime that is malum in se, as Murder, Perjury, Forgery, or the like, though not convict thereof, yet if the Truth thereof be certainly known to the Ordinary, may be rejected by him from being P • rson of a Church, if thereunto presented by the Patron : Otherwise it is, in case he be guilty only of malum prohibitum, and not malum in se, as to play at unlawful Games, to frequent Taverns and Alehouses, or the like . Also the Son is by the Canons rendered incapable of succeeding his Father in his Parsonage ; And if a man presented to a Living be not in Orders, the Bishop may refuse him, but not for want of a Testimonial ; for if any person shall be Admitted, Instituted, and Inducted into any Living before he is in Holy Orders, his Admission, Institution, and Induction are void by the late Act of Uniformity ; whereby his Subscription, and thereof the Bishops Certificate, also his Reading the 39 Articles of Religion in the same Parish-Church on some Sunday or the Lord's-day ( tempore Divinorum ) within two months next after his Induction, the declaration of his unfeigned Assent and Consent thereunto, his Reading the Book of Common Prayer, or Service appointed for the Church that day, within two months next after his Induction, with the declaration also of his Assent and Consent to all things therein contained, are required, otherwise the Church becomes void, and the Parson will be put to the proof of all the Premises, in case • e Sue the Parishioner refusing to pay his Tithe, if he shall insist thereon. The Statute of 13 El. cap. 12. Ordained, That the Articles agreed by the Archbishop and Bishops of both Provinces, and all the Clergy in the Convocation held at London, &c. shall be read by the Incumbent, otherwise he is ipso facto deprived. Or admitting all these Requisites have had their due performance, so that he is a complete Parson to all intents and purposes of Law whatever, yet he may not under pretence of this or that Custom extend the Lines of his Parsonage beyond its due limits or bounds, out of an Avaricious design to advance the perquisites of his Parsonage.

(5.) Edward Topsall Clerk, Parson of St. Botolphs without Aldersgate, London, and the Churchwardens of the same, Libelled in the Ecclesiastical Court against Sir John Ferrers; and alleged, that there was a Custom within the City of London, and specially within that Parish, That if any person, being Man or Woman, die within that Parish, and be carried out of the Parish to be Buried elsewhere, that in such case there ought to be paid to the Parson of this Parish, if he or she be buried elsewhere, in the Chancel so much, and to the Churchwardens so much, being the Sums that they alleged were by Custom payable unto them, for such as were buried in their own Chancel; And then alleging, that the Wife of Sir John Ferrers died within the Parish, and was carried away and buried in the Chancel of another Church, and so demanded of him the said Sum. Whereupon, for Sir John Ferrers a Prohibition was prayed by Serjeant Harris, and upon debate it was granted: For this Custom is against Reason, That he that is no Parishioner, but may pass through the Parish, or lie in an Inn for a night, should (if he then die) be forced to be Buried there, or to pay as if he were; and so upon the matter to pay twice for his Burial .

(6.) The words Parsonage, Church, and Rectory are frequently in the Law used Synonymously and promiscuously; but the word Advowson is another thing, and distinct from each of them: And as to some Parsonages there are certain Rents due and payable, so out of some Parsonages or Rectories there are issuing certain Rents or Pensions, which Pensions are not suable at the Common Law, but in the Ecclesiastical Court, as was said in Crocker and York 's Case against Dormer, against whom they had a Recovery in a Writ of Entry in the Post, among other things of a yearly Rent or Pension of four Marks, issuing out of the Church or Rectory of F. In which Case it was agreed by Clench and Fenner, that a Pension issuing out of a Rectory is the same with the Rent; of which Popham seemed to make some doubt; for there being in that Case a Demand for Rent in the Disjunctive, viz. a Rent or Pension, he moved that the greatest difficulty in the Case was the Demand made in the Disjunctive, viz. of an Annual Rent or Pension; for if a Pension issuing out of a Rectory shall be said to be a thing merely Spiritual, and not to be demanded by the Common Law, or merely of another nature than the Rent itself, with which it is there conjoin'd by the word [ or, ] that then it is Erroneous .

(7.) B. brought an Action of Debt against W. upon an Obligation of 600 l. the Condition was, That if W. Resign a Benefice upon Request, that then the Obligation should be void. And the Condition was Entered; the Defendant Demurred, and Judgment in B. R. pro Querente. And upon Error brought, Judgment was Affirmed in the Exchequer; for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force, as Leases made by Parsons of their Glebes, viz. per Non-Residency: And it doth not appear by the Plea of the Defendant, that it was not an Obligation bona fide, which might be lawful; As if a Patron which hath a Son, which is not yet fit to be presented for default of Age, and he present another with an Agreement, that when his Son come to the Age of 24 years he shall Resign it, it is a good Obligation. And this Case, viz. an Obligation with Condition to Resign had been Adjudged good in the Case of one Jones, An. 8 Jac. And the Counsel said, That he who is presented to a Church is Married thereto, and it is like as if a man who hath married a Wife, should be bound to be divorced from her, or not cohabit with her, these Conditions are void. But these resemble not our Case .

(8.) It was said in Johnson 's Case, That if a Parson Leases his Rectory for years, or parcel of his Glebe, reserving a Rent, and dies, if his Successor accepts the Rent, that Acceptance does not make the Lease good; because by his death the Franktenement is in Abeyance, and in no Man. And also a Parson cannot Discontinue: And by consequence, That that he did without Livery, is determined by his death. And it is not like to the Case of an Abbot, Prior, or Tenant in Tail .

(9.) Hendon moved for Dr. Clay, Vicar of Hallifax, That a Prohibition might be granted to the High Commissioners of York, for that, that these Articles by one Smith were exhibited against him, viz. 1. That he read the Holy Bible in an irreverent and undecent manner, to the scandal of the whole Congregation. 2. That he did not do his duty in Preaching; but against his Oath and the Ecclesiastical Canon, had neglected for sundry Mornings to Preach. 3. That he took the Cups and other Vessels of the Church, consecrated to holy use, and employed them in his own House, and put Barm in the Cups, that they were so polluted, that the Communicants of the Parish were loath to drink out of them. 4. That he did not observe the last Fast (Proclaimed upon the Wednesday) but on the Thursday, because it was an Holy-day. 5. That he retained one Stepheson in one of the Chapels of Ease, who was a man of ill Life and Conversation, viz. an Adulterer and a Drunkard. 6. That he did not Catechize according to the Parish-Canon: but only bought many of Dr. Wilkinson 's Catechisms; for every of which he paid 2 d. and sold them to the Parishioners for 3 d. without any examination or instruction for their benefit. And that he, when any Commissions were directed to him, to compel any person in his Parish to do Penance, he exacted money of them, and so they were dismissed, without inflicting any penalty upon them, as their Censure was. And that he and his Servants used divers Menaces to his Parishioners, and that he abused himself, and disgraced his Function by divers base Labors, viz. He made Mortar, having a Leathern-Apron before him, and he himself took a Tithe-Pigg out of the Pigsty, and afterwards he himself gelded it. And when he had divers Presents sent him, as by some Flesh, by some Fish, and by others Ale, he did not spend it in the invitation of his Friends and Neighbors, or give it to the Poor; but sold the Flesh to Butchers, and the Ale to Ale-wives. And that he commanded his Curate to Marry a Couple in a private House, without any License: And that he suffered divers to Preach, which peradventure had not any License, and which were suspected persons, and of evil Life. It was said by Henden, That they cannot by the Statute of 1 Eliz. cap. 1. meddle with such matters of such a nature, but only examine Heresies, and not things of that nature; and that the High Commissioners at Lambeth certified to them, that they could not proceed in such things, and advised them to dismiss it; but they would not desist. And the Judges ( Richardson being absent) granted a Prohibition, if cause were not shewn to the contrary .

(10.) A Parson makes a Lease for 21 years, the Patron and Ordinary confirm his Estate for 7 years; the Parson dies: The Question is, Whether that Confirmation made the Lease good for 21 years, or but 7 years. And it seemed to Hutton, That the Lease was Confirmed but for 7 years. But Richardson was of the contrary Opinion, and took a difference, where they Confirm the Estate, and where they Confirm the Land for 7 years; That Confirmation confirms all his Estate: But where they confirm the Lease for 7 years, That Confirmation shall not enure but according to the Confirmation. And that difference was agreed by Crook, and all the Serjeants at the Barr. And afterwards Hutton said, That that was a good Cause to be considered, and to be moved again .

(11.) In a Replevin: And the Title was by Lease made by a Parson; And the Avowry was, That A. was seized of the Rectory of H. and made the Lease, without showing that he was Parson. And by the Court, That that should have been a good Exception, if it had not been said in the Avowry moreover, That A. was seized in ju • e Ecclesiae, which supplies all .

(12.) During the time of the Parson, the Patron hath nothing to do in the Church . And therefore if the Patron grant a Rent by Fine out of the Church, the Church being then full, and afterwards the Incumbent dies, that charge shall not bind the Successor, for that the Parson and the Ordinary were no parties to it .

(13.) If a Parson would Resign, the word [ Resignare ] is not it seems the only proper word in the Law for Resignation, but [ Renunciare, Cedere, & Demittere ] are the usual words or terms of Resignation . Yet if a Prebend doth give, grant, yield, and confirm his Prebendary and the Possessions thereunto belonging unto the Ordinary, To have and to hold to him and his Successors in Fee, subjecting and submitting to him Omnia jura by reason thereof qualitercunque acquisita; these words it seems are sufficient and amount to a Resignation, albeit the proper words are not therein : Which Resignation ought to be made to the Immediate Ordinary, and not to the Mediate; for which reason a Prebend may not Resign to the King, for that although he is Supreme Ordinary, yet he is not the Immediate Ordinary, and he is not bound to give Notice to the Patron, as the Ordinary ought, nor of himself can Collate, but is to present to the Ordinary .

(14.) In Trespass: The Case was, ) The Defendant being Incumbent of the Church of B. (M. and G. having the Donation thereof) made an Instrument, whereby Concessit & Resignavit to M. & omnibus ad quos in hac parte pertinet ad acceptandam Ecclesiam suam de B; and thereupon the two parties gave it to the Plaintiff, who being disturbed by the Defendant brought Trespass. The Question was, whether a Resignation of a Donative could be to the Donor, or how it might be departed with. Resolved (1) That this being a Donative, begun only by the Foundation and Erection of the Donor; he hath the sole Visitation, and the Ordinary hath nothing to do therewith; and as the Parson comes in by the Donor, so he may restore it to him; and although the Presentee, when he is in, hath the Freehold, yet he may revest it by his Resignation, without any other Ceremony, and the Ordinary hath nothing to do with it: For Admission and Institution are not necessary in case of a Donative. (2) Resolved, That the Resignation to one of the parties is good, for it doth enure to both as a Surrender shall do. (3) Resolved, That although the Resignation was de Ecclesia, yet it shall extend to all the Possessions.

(15.) At a Synod in 44 Ed. 3. a Canon was made, That the Parson of every Church in England shall appoint the Parish-Clerk. And at another Synod held in An. 1603. a Canon was made to the same effect; and yet it doth not take away the Custom where the Parishioners or Churchwardens have used to appoint the Clerk, because that is Temporal, which cannot be altered by a Canon . If the Clerk of a Parish in London hath used time out of mind to be chosen by the Vestry, and afterwards Admitted and Sworn before the Archdeacon, and he refuse to Swear such Clerk so Elect, but Admits another chosen by the Parson: In this Case a Writ may be awarded, commanding him to Swear the Clerk chosen by the Vestry. 22 Jac. Walpool 's Case. The like Writ was granted for the Clerk of the Parish of St. Fosters, London. Mich. 16 Car. B. R. between Orme and Pemberton . The Parishioners of the Parish of Alphage in Canterbury prescribed to have the Nomination and Election of their Parish-Clerk, and the Parson of a Parish by force of a Canon, upon voidance of the place of the Parish-Clerk elected one to the Office: The Parishioners by force of their Custom elected C. the Parson, supposing this Election to be Irregular, for that it was against the Canon, Sued C. before Dr. Newman Chancellor of Canterbury, and the said C. was by Sentence deprived of the Clerkship of the Parish, and another Clerk of the Parish Admitted. C. moved for a Prohibition, and had it granted by all the Court; for it was held, That a Parish-Clerk is a mere Layman, and ought to be deprived by them that put him in, and no others; and the Canon which willeth that the Parson shall have Election of the Parish-Clerk, is merely void to take away the Custom, that any person had to Elect him. Vid. Stat. 25 H. 8. That a Canon against Common Law, confounding the Royal Prerogative of the King, or Law of God, is void; and Custom of the Realm cannot be taken away but by Act of Parliament, vid. 21 Ed. 4. 44. And it was Resolved, That if the Parish-Clerk misdemean himself in his Office, or in the Church, he may be Sentenced for that in the Ecclesiastical Court to Excommunication, but not to Deprivation: And afterwards a Prohibition was granted by all the Court; and held also, That a Prohibition lieth as well after Sentence, in this case as before. And in Jermin 's Case, Whereas the Churchwardens and Parishioners of K. surmized they had a Custom to place a Clerk there by the Election of the Vestry: the Parson sued them in the Ecclesiastical Court, to have his Clerk placed there, according to a late Canon made: It was the Opinion of the Court, that it was a good Custom, and that the Canon could not take it away; wherefore a Prohibition was granted.

(16.) A Bishop, Archdeacon, Parson, are Spiritual Corporations at the Common Law; for the Parson (and this is meant also of the others) hath two Capacities , The one to take to him and his Heirs; the other to him and his Successors, and in that respect he is seized jure Ecclesiae. If J. S. be Parson of D. and Land be granted to J. S. Parson and his Successors, and to J. S. Clerk and his Heirs, in this case he is Tenant in Common with himself .

(17.) Note, That it was agreed in Bushie 's Case, That if a Parsonage be Impropriate, and the Vicarage be endowed, and difference be between the Parson and the Vicar concerning the Endowment, that shall be tried by the Ordinary, for the Persons and the Cause are both Spiritual: And there the Vicar sues the Parson for Tithes, and suggests the manner of Tithing, and prays a Prohibition, and it was granted, and after upon solemn Argument Consultation was granted, insomuch that the manner of Tithing did not come in question, but the Endowment of the Vicarage only; for that is the elder Brother, as the Lord Coke said: This was cited to be Adjudged by Coke. Also there is much difference between Prebends and Parsons; for it was Adjudged in Watkinson and Man 's Case, That a Lease made by a Prebend is good by the Statute of 32 H. 8. for he is not excepted, but only Parsons and Vicars; and so it was said it had been Adjudged in Doctor Dale 's Case.

(18.) It will not be denied, but that the Clergy of England have had in all Ages certain Privileges, which the Laity never pretended to: To which purpose there have been Laws Enacted, and Cases Ruled by persons learned in the Laws. In An. 22 H. 8. cap. 5. it is Enacted, That the decayed Bridges in every County, where it cannot be known who in right ought to repair the same, shall be repaired by the Inhabitants of the said County, Town Corporate, or Riding where the Bridge is, by the Assessment of the Justices of Peace, who may appoint Collectors to levy the same by Distress. Now the Question is, Whether the Parsons and the Vicars may be charged by the general word of the Inhabitants, and Distress taken on their Spiritual Livings? In order to a Resolution of this Question, it must be premised, That it is most evident, that the Clergy are by the Common Law of this Kingdom a divided Estate both for their Persons and Spiritual promotions from the Laity of this Land. (1) For their Persons, Fitz. N. B. fo. 175. That Clerks shall not be chosen Bailiffs or Beadles for the Lands in their possessions, although the Land before it came to the hands of the Clerk, was charged therewith by tenure. (2) A Clerk arraigned before a Temporal Judge for Felony, may plead the Jurisdiction of the Court; The Clergy-men, by reason of their Resiance, are not bound to the Leet; nor to follow Hugh and Cry. (3) That their Spiritual Livings are also discharged from the general charge of this Realms Laity, appears by the Register, fo. 260. & F. N. B. fo. 227. That Spiritual persons shall not be charged to pay Toll, Pontage, or Murage, but may discharge themselves by Writ. Also the Sheriff, who by the Law is the King's general Officer to serve Processes in every County, may not intermeddle with the Clergy in respect of their Spiritual promotions, but return Quod Clericus est Beneficiatus in Episcoparu, non habet Laicum foedum in baliva mea; and then the Process must be to the Bishop, as appears 34 H. 6. & 21 H. 6. This Privilege is confirmed to them by Magna Charta, and divers Grants and Statutes, viz. Articulis Cleri, 9 Ed. 2. cap. 9. Likewise no Distress shall be taken in the Ancient Donations of the Church. The like Grant is made unto them by King Ed. 1. 24. Protestation 2. That the Sheriff or Minister of the King shall not meddle with the Goods, Chattels, or Carriages of the Clergy; and in Purveyors, 12. An. 14 Ed. 3. there is a Statute, that Purveyors shall not meddle with the Clergy, &c. Ed. 1. cap. 1. 1 R. 2. cap. 2. 1 H. 4. cap. 3. Statute Spiritualties 2. Privileges, Grants, Immunities of the Clergy are confirmed. So that it appears both by the Common Law and the Statutes, that the Clergy are not to be burdened in the general charges with the Laity of this Realm, neither to be troubled or encumbered, unless they be especially named and expressly charged by some Statute. And divers Statutes heretofore expressing themselves with the like general words, have never been expounded to extend to the Clergy, as by the usage of them appears by the Statute of Winton. An. 13 Eliz. 1. Again, the people dwelling in a Hundred where any Robbery is committed, shall either bring forth the Felon, or agree with him that is robbed, yet hath it never been taken, that Parsons and Vicars should be Contributors thereunto; yet the words [ Gentes demorantes ] viz. the People dwelling, are as general words as [ Inhabitants ]. In the same Statute there are the like general words [ Watching, &c. ] yet the Clergy thereby are never charged. Also the Statute made for the Highways, An. 2 & 3. P. & M. chargeth every Housholder; yet this general [ Housholder ] hath never been taken by usage to charge the Clergy, viz. the Parson or Vicar. Fitz. in his Nat. Bre. fol. 131. saith, that a Clerk being bound in a Statute-Merchant, shall not be taken by his Body: And the Writ founded upon the Statute-Staple, 27 Ed. 3. cap. 9. hath this special Proviso, Si Laicus Sit, capias. Also the Statute whereupon this Writ is founded, is general, and no Exception made at the Clergy. And 33 H. 8. cap. 2. there is a Statute that chargeth all Resiants within any County • where there is no Goal, to be Taxed by the Justices for the Building of one, yet have the Clergy never been charged by reason of these general words [ Resiants, &c. ] 1 Ed. 1. 18 Ed. 3. 4. 1 R. 2. 1. For these Reasons it is supposed, that the general words in the aforesaid Question will receive in Law the like Exposition, as the other said recited Statutes have done; And the Parsons and Vicars shall not thereby be charged, the rather for that the Statute sets down the Inhabitants of the County, where the certain persons that should do it, cannot be known, which is to be intended such Inhabitants as are chargeable to Pontage, which Spiritual persons are not, but excepted, as aforesaid.

CHAP. XVIII.

Of Vicars, Vicarages, and Benefices.

• 1. The Vicar and Vicarage described according to Law.
• 2. What difference between Vicarage and Parsonage; their several Rights and Interests respectively.
• 3. Whether a Vicarage Endowed may be Appropriated, and how?
• 4. The Chaplain of the Vicar of Hallifax his Case for his Salary.
• 5. Vicars may Sue in the Ecclesiastical Courts for Pensions.
• 6. How a Vicarage may be created.
• 7. The Resolution of Court touching the Vicar's Tithes, in reference to the Parson's Glebe.
• 8. Cases in Law touching the Parsons and the Vicar's Tithes, where Composition or Prescription is in the Case.
• 9. Who is Patron of the Vicarage, whether the Parson or the Patron?
• 10. In what case the Vicar may Sue in the Ecclesiastical Court for an addition or increase of Maintenance.
• 11. In what case a Vicarage shall determine; and what shall be an union of Parsonage and Vicarage.
• 12. Benefice how defined by the Canon Law, with the Reasons of that definition.
• 13. Benefices Ecclesiastical extend to Ecclesiastical Dignities by the Canon Law, but not so within the Statute of 21 H. 8.
• 14. Of what an Ecclesiastical Benefices consists according to the Canonists.
• 15. Cautionary Laws relating to Benefices; by what marks or signs an Ecclesiastical Benefice is known at the Canon Law.
• 16. The common distinction of Ecclesiastical Benefices at the Common Law.
• 17. A Case in Law touching a Vicarage, whether Dissolved, or not?
• 18. Vicarages of Two sorts, how compared to a Commendam.

(1.) VICAR is he who hath that Spiritual Living called a Vicarage, being no other than a certain part or portion of a Parsonage, allowed to the Minister for his Maintenance, introduced at that time when Impropriations first began; both which Livings as they are commonly called the Church: so both such as serve in them, are called the Patron's Clerks. The Vicar is usually appointed and allowed to serve the Cure, by him who hath the Impropriation of the Parochial Tithes; for at the Original of such Impropriations a certain portion of the Parsonage was allotted and set apart from the rest to maintain the Vicar, who was to serve the Cure ; So that now the Priest of a Parochial Church, where the Predial Tithes are Impropriated, is called the Vicar, h. e. vice Rectoris. And it seems Anciently they did sometimes style themselves Perpetual Vicars, because every Vicarage, Corporation-like, hath a constant Succession.

(2.) A Parsonage and a Vicarage (as appears in Briton and Wade 's Case) are two distinct Benefices, and both have Curam animarum, the Parson habitualiter, the Vicar actualiter; and although the Vicarage be Spiritual, yet the Corporation is Temporal, which the Pope could not dissolve : And in the Case between Parry and Banks, it was Resolved, That after the Statute of 31 H. 8. which made Parsonages Lay-Fees, the Ordinary could not dissolve a Vicarage, when the Parsonage is in a Temporal hand; for that were to destroy the Cure . Vicarages being originally endowed out of Parsonages, the Vicar was to have aid of the Parson, if he were impleaded for anything touching the Vicarage, and the Parson was subject to every charge of the Vicarage . And anciently the Vicar was not held as Tenant of the Freehold of the Glebe of the Vicarage , but the Freehold thereof was in the Parson, and the Vicar could not maintain an Assize in his own Name . But now it seems the Freehold of the Glebe of the Vicarage is in the Vicar himself, and not in the Parson, for that the Possessions of the Vicar and Parson are severed, and each of them shall have several Writs concerning their respective Rights, and shall not join in one Writ : and the Vicar shall have and maintain a Writ of Juris Utrum against the Parson, who is the Patron of the Globe of the Vicarage, for the same Glebe . This Vicarage being a certain portion of a Parsonage allowed to the Vicar for his Maintenance as aforesaid, is in some places a sum of Money certain, in others a part of the Tithes in kind, commonly the smaller Tithes, and in some places a part of the great Tithes also: And Vicarage-Lands occupied by the Vicar, do in some places pay no Tithe to the Parson .

(3.) In Ward 's Case it was said by Montague. That a Vicarage endowed might be Appropriated, but not to the Parson, to which Haughton and Doddridge agreed, 31 H. 6. Fitz. tit. Indicavit, is, that such a Vicarage may be dissolved: An Appropriation may be by the King sole where he is Patron, but there is no Book that it might be by the Patron sole. Grindon 's Case in Plowden, and 17 E. 3. 39. an Appropriation cannot be without the King's License. In that case it was agreed, That Tithe-Lamb and Wool was included within small Tithes , which Tithe belongs to the Vicar.

(4.) A Chaplain that was under the Vicar of Hallifax, Libells against him in the Ecclesiastical Court for his Salary. And he prescribes, That the Vicar ought to pay the Chaplain four pounds a year; and the Vicar prays a Prohibition, (1) for that he alleges, That the Chaplains were Eligible by himself; and because that Chaplain was not Elected by him, he is not Chaplain; but he is in of his own wrong, &c. (2) That Prescription for Salary was Triable at the Common Law. Yelverton, The Salary is Spiritual as the Cure itself is Spiritual, for which it is to be paid. As the Case in Dyer, 58. Pl 4. But a Prohibition was granted, until it was determined to whom the Election appertained; and that now depends by Prohibition in this Court .

(5. ) G. Vicar Sues in the Ecclesiastical Court the Dean and Chapter of Wells, Parson of a Church, for a Pension, and they pray a Prohibition, and it was denied; For that Pension is a Spiritual thing, for which the Vicar may sue in the Spiritual Court .

(6.) The Parson, Patron, and Ordinary may Create a Vicarage and Endow it without the Assent of the King; but the Ordinary cannot Create a Vicarage without the Patrons Assent. 16 E. 3. Quare Impedit, 145. And in or during the Vacancy, the Patron of a Parsonage and the Ordinary may Create a Vicarage. 8 R. 2. Annuity 53. per Belk. And before the Statutes of Dissolutions, a Parson Impropriate and the Ordinary might Create a Vicarage, for the Parson was Parson and Patron. Ibid. .

(7.) It was Resolved per Curiam, That if a Vicar be endowed out of a Parsonage of all the white Tithes growing and renewing within the Parish on all the Land of the Parish; the Vicar shall not therefore have the Tithe of the Parson's Globe, for that is excepted; nor the Tithes of the Land, which at the time of the Endowment of the Vicarage was parcel of the Glebe, but since severed from the Glebe, for that at the time of the Endowment that Land was exempted out of the Endowment .

(8.) If there be a Composition made between the Parson and the Vicar, That the Parson shall have all the Tithe of Corn and Hay, and the Vicar the other Tithes, and afterwards the Parishioners sow certain Lands with Saffron, or the like, the Parson shall not have the Tithe of the Saffron, but the Vicar. By Coke so Adjudged . It hath als • been Resolved, It a Vicar be Endowed of the Small Tithes by Prescription, and afterwards the Land which had been Arable time out of mind, is converted from Arable, and there grow small Tithes, the Vicar shall have them, for his Endowment doth not go to the Land, but Minutis Decimis in every place within the Parish . And if a Vicar be endowed of the third part of all the Tithes of a Manor, he shall have Tithes as well of the Freehold as Copyhold, for all makes the Manor .

(9.) The Parson, and not the Patron of the Parsonage, of Common right is Patron of the Vicarage, for that it is derived out of the Parsonage. Dubitatur 17 E. 3. 51. b. Contra, 5 E. 2. Quare impedii, 165. per Pass. And if a Parson Appropriate create a Vicarage, he shall be Patron thereof. 17 E. 3. 51. he is both Parson and Patron . So likewise if there be a Vicar and a Parson Appropriate, the Ordinary and the Parson Appropriate may in time of vacation of the Vicarage re-unite the Vicarage to the Parsonage .

(10.) If there be a Parsonage Appropriate in an Ecclesiastical person, which never came to the King by the Statute of Monasteries, and a Vicarage Endowed be there also; and the Parson make a Lease of the Parsonage for Lives, according to the Statute of 32 H. 8. The Vicar may in that case sue in the Ecclesiastical Court against the Parson and his Lessee, who comes in by the Statute for Addition of Maintenance, and the Ordinary may well compel them to increase his Maintenance, for over all Appropriations such power of increasing the Vicar's Maintenance was reserved to the Ordinary, and the Lessee comes in subject to that charge .

(11.) If the Vicarage be diminished, he shall have more of the Parsonage, if what remains be not sufficient. And if the Parsonage be impoverished and so decayed, that the Parsonage by itself, nor the Vicarage, have sufficient to sustain them, in that case the Vicarage shall determine and be restored to the Parsonage: And to this the Doctors also do accord . It hath been also held, If a Parson Appropriate, who is Patron of the Vicarage of the same Church, by Agreement between him and the Ordinary, present the Vicar to that Parsonage, it is an union of the Parsonage and Vicarage; but if a Lessee of a Parsonage present the Vicar to the Parsonage, that shall not bind the Lessor . And if there be a Vicarage and Parsonage (and both void) and one present his Clerk as Parson, and he is so Inducted; that shall unite the Parsonage and Vicarage again . And in case that there be a Vicar Endowed who is Presentative, and also a Parson Presentative, it seems that the Parson hath not the Cure of Souls, but the Vicar .

(12.) Benefice [ Beneficium ] according to a general acceptation may comprehend all Ecclesiastical Livings, be they Dignities or other, as in the Statute of 13 R. 2. where they are divided into Elective and Donative : But according to a more strict and proper acceptation, Duarenus seems to give it an apt definition, where he says, it is Res Ecclesiastica, quae Sacerdoti vel Clerico, ob Sacrum Ministerium utenda, in perpetuum concedatur . [ Res ] because it is not the Ministry itself or the Office, but rather the profit thence arising that is the Benefice. [Ecclesiastica ] because such profit is dedicated to God and his Church. [ Sacerdoti, &c. ] because where a thing Ecclesiastical is granted to Lay-men, it is not properly said to be a Benefice in this sense. [ Ob Sacrum Ministerium ] because as Dedicated to God, they are for the use of such as wait on his Altar. [ Utenda ] because they have rather the Usuf • uit thereof, than any Fee or Inheritance therein. [ In perpetuum ] because they are annexed to the Church forever. Benefices with Cure of Souls seem most properly to be the Parsonages and Vicarages of Parochial Churches. Sir H. Hobart Chief Justice, in Colt and Glover 's Case against the Bishop of Coventry and Lichfield, says, (speaking of the Statute of 21 H. 8. cap. 25.) That Bishoprics are not within the Law under the word [ Benefices ]: So that if a Parson take a Bishopric, it avoids not the Benefice by force of that Law of Pluralities, but by the Ancient Common Law, as it is holden, 11 H. 4. 60.

(13.) This word Beneficium Ecclesiasticum extendeth not only to Churches Parochial and the Benefices thereof, but also to Dignities and other Ecclesiastical promotions; as to Deanaries, Archdeaconries, Prebends, &c. . Lindw. de vit. & hon. Cle. c. Exterior. Sir Edw. Coke affirms, that it appears in the Books of their Law , That Deanaries, Archdeaconries, Prebends, &c. are Benefices with Cure of Souls; but they are not comprehended under the Name of Benefices with Cure of Souls within the Statute of 21 H. 8. by reason of a special Proviso; which they had been, if no such Proviso had been added , viz. Deans, Archdeacons, Chancellors, Treasurers, Chaunters, Prebends, or a Parson where there is a Vicar endowed .

(14.) The Canonists do hold, That an Ecclesiastical Benefice consists of the Sacred Function, and of the Provinces thereunto belonging ; It is a distinct portion of Ecclesiastical Rights joined to the Spiritual Function, and until it be set apart, separate, and distinguished from Temporal Interests, it is not properly an Ecclesiastical Benefice; it is termed a portion, in that it includes Fruits, for a Benefice without Fruits cannot properly be so called.

(15.) By the Jus Commune no man can at once and at the same time possess two Benefices with Cure of Souls, as incompatible. Tot. decis. Rotae 445. tit. de Praeb. in novis. Non datur Beneficium nisi propter Officium, he that performs not the one, ought to be deprived of the other. C. fin. de Rescript. in 6. Can. Eos. Cano. si quis Sacerdotum 81. distinct. All p • cuniary Contracts, all mercenary Trading and Merchandizing for Benefices is to be abhorred; Ecclesiastical Benefices are of such a Spiritual Constitution, that they are not capable of being bought or sold; they fall not within the walk of human Commerce, but ought to be confer'd gratis. And for Non-residence the Parson ought by the very Letter of the Law to be deprived of his Benefice and the Fruits thereof. c. Uni. de Cleric. non residen. in 6. Panormitan observes Six signs whereby an Ecclesiastical Benefice may be known: As (1) That according to the Jus Commune it ought to be bestowed by one who hath a right and power in him so to do, meaning the true Patron. (2) That he who doth give or bestow it, do reserve nothing thereof or therein for himself, directly or indirectly. (3) That it be given purely as a provision and maintenance for the Clerk. (4) That it hath ever something of Spiritualty annexed to it. (5) That in its nature it be perpetual. (6) That all manner of Contracts and Bargains concerning it be utterly rejected. Panorm. Consil. 47. Anchor. de Regul. prim. de reg. jur. in 6. q. & Decius in Rub. de Rescript.

(16.) Whatever is enjoyed as a Benefice, is had and obtained either by way of Title, or Canonical Institution: Lindw. de cohabit. Cle. & Mulier. c. ut Clericalis. verb. Beneficiati. Ecclesiastical Benefices being commonly distinguished into Presentatives and Donatives; for a Parochial Church may be Donative, and exempt from all Ordinaries Jurisdiction. For if the King doth found a Church or Chapel, he may exempt the same from the Ordinaries Jurisdiction; in which case the Lord Chancellor and Lord Keeper shall Visit the same. 20 E. 3. Excommeng. 9. 21 E. 3. 60. Parsons Law, cap. 28. Or if the King by his Letters Patents doth License a Common person to Found a Church or Chapel, exempt from the Ordinaries Jurisdiction, the same shall be Visited by the Founder, and not by the Ordinary: 6 H. 7. 4. per Keble, 8 Ass. 29. F. N. B. 42. acc. And if such Clerk Donative be disturbed in his Incumbency, the Patron or Founder shall have a Quare impedit Praesentare, and declare upon the Special matter. But if a Patron of a Church Donative doth once present unto the Ordinary, and his Clerk be Admitted and Instituted, it is now become Presentable, and it shall never be Donative after, and then the Ordinary shall Visit the same, a Proxy shall be paid, and Lapse shall incur to the Ordinary, as in all other Benefices presentable ; but so long as it remains Donative, it is without the Jurisdiction of the Ordinary. For a Donative is a Benefice merely given and collated by the Patron to a man without either Presentation to, or Institution by the Ordinary, or Induction by his Order . All Bishoprics were anciently Donative by the King : and it is said, that there are certain Chauntries, which may be given by Letters Patents . The Original Donatives in England is supposed to be from what Mr. Guinn mentions in the Preface of his Readings, viz. That as the King might anciently Found a Free Chapel and exempt it from the Diocesan's Jurisdiction: So he might also by his Letters Patents License a Common person to Found such a Chapel, and to Ordain that it shall be Donative and not Presentable, and that the Chaplain shall be deprivable by the Founder and his Heirs, and not by the Bishop . Whether such Donatives are properly Benefices Ecclesiastical may well admit of an Enquiry; for where Petr. Gregorius speaks of Chapels Founded by Lay-men, not approved by the Diocesan, nor by him as it were Spiritualiz'd, he there says plainly, that they are not accounted Benefices, nor can they be confer'd by the Bishop; but the Founders and their Heirs may give such Chapels, if they so please, without the Bishop: Petr. Gregor. de Benefic. cap. 11. nu. 10. & Guid. Pap. Decis. 187. And Lindwood makes a very prolix question on the same reason, whether St. Martins Le Grand Lond. be Ecclesiasticum Beneficium, or not, Arguing it pro and con, but concludes in the Affirmative. Lindw. de Cohab. Cler. & Mul. cap. ut Clericalis.

(17.) The Prior of D. was seized of the Advowson of the Church of N. appropriated to his Priory, and also of the Vicarage of N. endowed with small Tithes: The Appropriation and Endowment were both in the time of King John, and continued till the time of Hen. 6. when the Pope granted by his Bulls, That the Prior should appoint one of his Monks to officiate the Cure, who should be removed ad nutum Prioris: The point was, Whether the Vicarage was dissolved? Resolved (1) That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope could not make any Ordinance against that Statute, nor Dispence by his Bulls with the Law, though they tend in Ordine ad Spiritualia. (2) There were no words that amount to a Dissolution, but the words only are, That the Vicar should be ad nutum Prioris. (3) The Parsonage and Vicarage are two distinct Benefices, and both have Curam animarum, the Parson habitualiter, and the Vicar actualiter; and although the Vicarage be Spiritual, yet the Corporation is Temporal, which the Pope cannot dissolve. (4) That in this case the Vicarage was not Dissolved: vid. 12 Jac. in the Exchequer, Parry and Bank 's Case accordingly, there vouched.

(18.) In the Canon Law there are two sorts of Vicarages, viz. Vicaria Temporalis and Vicaria Perpetua; ; The Vicaria Temporalis is compared to the Commenda Temporalis, for that such Temporal Vicar non habet Titulum, sed servit alieno nomine, & proprie Curam non habet: otherwise it is de Vicaris perpetua, quae est incompatibilis cum alio Beneficio, & habet Curam animarum, & talis Vicarius habet Titulum Canonicum; And a Quare Impedit lies against such perpetual Vicarage. F. N. B. 32. h. Regist. 31. a. And such a Vicar shall have a Juris Utrum of Lands annexed or given to him in perpetuity, by the Statute of 14 Ed. 3. cap. 17. vid. 40 Ed. 3. 28. b. where Finchden said, That although it had been held, that a Vicar should not have Action of his Possessions against any person, yet that now the Law is changed in that point; and good reason, when he is endowed to him and his Successors in perpetuity.

CHAP. XIX.

Of Advowsons.

• 1. Advowson, what; and why so called.
• 2. Advowsons twofold.
• 3. The great Antiquity of Advowsons; the Original thereof.
• 4. How it was in this Kingdom under the Saxons.
• 5. The word Advowson applicable to other Ecclesiastical Foundations, as well as Churches; what the Famous Lindwood was.
• 6. Advowsons are Temporal, not Spiritual Inheritances.
• 7. Reasons in Law, proving it to be a Temporal Inheritance.
• 8. The difference between Advowsons in Gross and Appendant.
• 9. How Advowson Appendant may remain in the King as in Gross.
• 10. By what words in a Grant an Advowson may pass or not.
• 11. How an Advowson may be recontinued to the Rightful Patron, where he was ousted by Usurpation.
• 12. A Case in Law touching three Avoydances of a Church granted to one man.
• 13. A Question in Law, whether upon such matter of Fact an Advowson remains Appendant, or not?
• 14. Advowsons are devisable by Will, as well as grantable by Deed; what Actions may run in prejudice to the Advowson, or not.
• 15. Whether an Advowson may be Assets; and under what words it may pass, or not?
• 16. A Case in Law touching the Advowson of a Vicarage.
• 17. In what case the Writ of Right of Advowson lies, or not.
• 18. In what case the Crown shall be put to that Writ, or not, in case of Usurpation by a Common person.
• 19. A point in Law, whether the King or his Grantee shall have the Presentation, where the King having a Manor with the Advowson appendant, the Church void, grants the Manor with the Advowson.
• 20. Of Advowsons there are three Original Writs at the Common Law.
• 21. The Advowson of a Vicarage, whether it belongs to the Patron or the Parson.
• 22. Whether an Advowson may properly be said to be a Demesn; several matters of Law in reference to Advowsons Appendant and in Gross, in respect of the King and Common persons.
• 23▪ Whether a Donative in the Kings Gift may be the Cure of Soul?
• 24. Whether by the Grant of a Vicarage the Advowson of the Vicarage shall pass; The grant of a next Avoydance during an Avoydance, is void.

(1.) ADvowson is a kind of Reversionary right of Presentation to an Ecclesiastical Benefice in a man and his Heirs for ever. It is the same which the Canon Law understands by Jus Patronatus, or the Right which a man and his Heirs have to present their Clerk to the Ordinary, for a Parsonage or other Spiritual Benefice when it becomes void; and he in whom such Right resides, is called the Patron . Jus Patronatus est Potestas Praesentandi aliquem Instituendum ad Beneficium Ecclesiae Simplex & vacans. Hostiens. de jure Patronat. Jus Patronatus est jus Honorificum, Onerosum, & Utile. It is a Right to present to the Bishop or Ordinary a fit person, by him to be Admitted and Instituted into a Spiritual Benefice when it becomes void. The unlawful Possessor is the Usurper, against whom only lieth three Writs; one of the Right, as the Writ of Right of Advowson; and the other two of the Possession, As a Quare Impedit, and Darrein Presentment. And the Incumbent, as to his Right for his Rectory, hath the Writ of Juris Utrum. And Advowson is not Haereditas corporata, as a Messuage, Land, or Pasture, &c. But it is Haereditas Incorporata; as Ways, Common, Piscaries, Courts, &c. which are and may be Appendant to Inheritances Corporate. Advowson is a kind of Bastard-French word, sometimes called Advocatio Ecclesiae, either because the Patron thereof, claiming his J • s Patronatus therein, Advocate se in his own Right unto the same, eamque esse sui quasi Clientis Loco, or rather because the Patron in his own right Advocate alium to the Church being vacant, and presents him unto it Loco alterius, veluti Defuncti . Thence called sometimes Patron, sometimes Advocati; for they who originally obtained a Right to present to any Church, were either the Founders, or Builders, or Benefactors of the same. Decretal. c. 4. & 24. de jure Patronat. & Plow. 495. Dy. 48. Co. 1. 102. 4. 37. 6. 39. Litt. 119, 120. Patronum faciunt Dos, Aedificatio, Fundus. And although Advowsons are now, as other Temporal Inheritances, grantable by Deed, and so in that respect cognizable at the Common Law; yet inasmuch as they are the same which the Canon Law calls Jus Patronatus, it cannot be denied, but that they are within the Ecclesiastical Jurisdiction; and therefore although the Patron may have his Action against the Ordinary in a Temporal Court by a Quare Impedit for rejecting his Clerk, yet the Ordinary may Decree a Process de Jure Patronatus in the case, to inquire by a Mixt Jury of Ecclesiastical and Lay-men touching the said Advowson or Right of Patronage according to the Laws and Customs of the Church.

(2.) There is an usual difference taken, between Advocatio medietatis Ecclesiae, and Medietas Advocationis Ecclesiae: The former is where two Patrons be, and every of them having Right to Present a several Incumbent to the Bishop, to be Admitted into one and the same Church, (for divers may be several Parsons, and have Cure of Souls in one Parish) and such Advowson is alike in every of these Patrons, but every of their Presentments is to the moity of the same Church; and therefore it is called Advocatio Medietatis Ecclesiae, or as the case may be, Advocatio Tertiae partis Ecclesiae, and the like. The latter, viz. Medietas Advocationis Ecclesiae, is after partition between Parceners; for although the Advowson be entire, amongst them, yet any of them being disturbed to present at his Turn, shall have the Writ of Medietate, or of Tertia, or of Quarta parte Advocationis Ecclesiae, as the Case is▪ And this difference is taken and observed only in the Writ of Right, which is altogether grounded upon the Right of Patronage. But in the Quare Impedit, which is only to recover Dammages, no such diversity is considered, but the Writ is general, Praesentare ad Ecclesiam. Doddridge, of Advowsons, Lect. 4. Of Advowsons there are two sorts, The one that in Gross, which is Sole or Principal, not adhering or belonging to any Manor, or to any part or parcel thereof, as of the Right thereof: The other Appendant or Dependant, or depending on a Manor, as appertaining or belonging thereto, which is by Kitchen termed an Incident that may be separated from the Subject. Again, Sometimes the word Advowe or Avowe is also used for him who hath a Right in his own Name to present to a Benefice or other Ecclesiastical Living, where you have also ( Advowe paramount ) or the highest Patron, an Appellation peculiar to the King. So that this Advocatus is he to whom such jus advocationis alicujus Ecclesiae belongeth, as that he may Present to the Church in his own, but not in another's Name . And Fitzherbert useth it in the same signification .

(3.) Consonant to the practice at this day touching Advowsons, was the Emperor's Novell, Decreed about 1100 years since, towards the end of the Fifth Century, to this purpose, That if any man shall erect an Oratory, and his desire be to Present a Clerk thereunto, by himself or his Heirs; if they furnish the Clerk with a Competency, and Nominate to the Bishop such as are worthy, they may be Ordained: But if those who are intimated by them be rejected by the Canons, as unworthy of the Ministry, then let it be the care of the most Reverend Diocesan of the place, to Present such as in his discretion he shall conceive better of . And Panormitan clearly interprets the Emperor's mind herein, and gives us the very meaning and original of the Patron's Right in this point of Advowsons; he says, That this is Jus honorificum, onerosum, & utile, belonging to any in the Church, for that with the Diocesans consent he hath Founded, Built, and Endowed a Church, he hath given a piece of Ground▪ C. nobis, c. de jur. Patronat. and erected a Church thereon, 16. q. 7. c. Monasterium. and Endowed it, C. Piae mentis, ibid. and was therefore qualified with the Right of Patronage. And indeed the Diocesans consent herein is so requisite, that by the Canon Law it seems scarce feazable for a man to be a Patron without it, Si quis Ecclesiam cum assensu Dioecesani construxit, ex eo Jus Patronatus acquirit. Clement. c. Nobis de Jur. Patron. And when a Church so erected is by the Consecration thereof actually delivered up and made over (as it were) to God himself, it thenceforth ceases to be of any man's property, or of any Human Dominion; for Quod Divini Juris est, id nullius est in bonis: §. nullius, Inst. de Rer. Divis. And by what is Recorded in the Life of Bishop Ulrick, it should seem as if the Right of Presentation originally were in the Diocesan; for the Author there saith, That if any Erected a Church the Bishop consented, Si legitimam Ecclesiae dotem in manum ejus Celsitudinis dare non differret, &c. And after the Endowment and Consecration thereof, the care of the Altar was committed by him to the Priest, and the Advowson firmly conveyed to the lawful Heir, by the putting on a Robe: Author. vitae▪ Udalrici, c. 7. p. 52. Edit. August. Vindel. 1595. But the Bishops understanding this as a matter more of Care than of Power, as appears by these moderate expressions of Nominare, Praesentare, or Commendare, they were willing the Lay-Patron (for his better encouragement to such Pious works) should share with them in this privilege, which Panormitan calls Jus • onorificum, yet so, as that this transference of the Bishops unto Lay-Patrons, should still remain under such a Limitation, as that it should be necessary for the Patron to have recourse to the Bishop for the qualifying his Clerk for the Rectory by Ordination; And the Bishop's prudent compliance with Lay-Patrons in this matter was not in those days without good reason, if we consider what a paucity of public Churches there then were, insomuch that for want or instead thereof they frequently then said Prayers under a Cross in the open Field, as is reported of our own Ancestors in the Peregrination of Wilibald, Sic mos est Saxonicae gentis, &c. non Ecclesiam sed Sanctae Crucis Signum, &c. diurnae Orationis sedulitatem solent habere. Hodaeperic. Hierosolym. Wilibald. Extat ad Canisium, Tom. 4. Antiq. Lect. par. 2. pag. 486. Edit, Ingolst. 1603. Yea, and where perhaps some Churches were, many of them were no better than those mentioned by Asser Bishop of Shirburne in King Alfred 's days, which were of so mean a structure, that frequently the wind entering per parietum rimulas, did blow out the Candles set before the Relics; which gave occasion to that ingenious Prince to teach us by his dexterity the mystery of making Lanthorns Ex Lignis & Bovinis Cornibus.

(4.) In the Infancy of the Christian Faith in this Island under the Saxons, several particular Lord's of Grand Seignories ( Regis ad Exemplum ) erected particular Churches, and having Endowed them with Lands, reserved to themselves and their Successors for ever a right and power to confer them on such as were meetly qualified for the same; And this they did in imitation of those Kings, who then Reigning here, erected Cathedrals, Abbeys, Priories, Churches, &c. .

(5.) An Advowson, being a right of Presentation (as aforesaid) reserved by a Founder to himself, his Heirs and Successors, is applicable to other Ecclesiastical Foundations, as well as those of Churches, as appears by the several Quare Impedits brought on several occasions : so that albeit it hath been said, that by the Grant of a Church the Advowson passed , and when he gave the one, he gave the other; yet is the word Advowson not improperly applicable to anything wherein a Quare Impedit will lie. And he in whose Right such Presentation is rested, is by the Provincial Constitutions of this Realm termed Advocatus Ecclesiae, because (as the Constitution hath it) tueri & defenders Ecclesiam & ejus jura tenetur, ad instar Advocati qui in Judicio Causam alicujus defendit. Lindw. Provin. Const. de Foro Comp. cap. Circumspecte, ver. Advocatus. Which every Patron is obliged to do; whence Patronus and Advocatus Ecclesiae are in effect Synonymous; yet in Lindwood we have the Question put, whether there be any difference inter Patronum & Advocatum Ecclesiae. Lindw. Const. Prov. de homicidio, cap. Sacri, Gloss. ibid. Where though the prevailing opinion be for the Negative, yet you will also there find very Orthodox Authority for the contrary, and that Advocatus intelligitur non pro Patrono, sed pro Defensore Ecclesiae: Gloss. ibid. as appears there by Lindwood that Famous Canonist totius Orbis Britannici, who being Doctor of Laws, Chaplain and Official to the Archbishop of Canterbury in the time of H. 5. was by reason of his great Experience and Abilities in National Laws as well as Provincial Constitutions, sent as his Embassador to the Crowns of Spain and Portugal; and at his Return about An. 1422. compiled what now is extant to his Immortal Memory, and Dedicating the same to the said Archbishop, it was after about An. 3505 (being first revised by Wolfgangus Hopylius ) printed at Paris, at the cost and charges of William Bretton Merchant of London. Mention hereof is here made, in regard of the plentiful use here made of this Eminent Author in this Ecclesiastical Abridgment, and that rather in the midst of this Subject touching Advowsons, as presuming, that for the reason aforesaid a Quare Impedit will not lie in the case of this digression.

(6.) The Right of Patronage is, it seems by the Common Law, a real Right fixed or vested in the Patron or Founder in the Church, wherein he hath as absolute a property and Ownership as any man hath to his Lands and Tenements, or any Freehold whatever : And that the Advowson or Patrons Right to Present is a Temporal and not a Spiritual Inheritance. For at the first Creation of a Manor, if Lands were given to erect a Church thereon, the Advowson thereof became appendant to that Manor, and reputed as parcel thereof, which being Temporal, the other became so also, as an Accessary to the Principal; for which reason such an Advowson passeth by the Grant of the Manor cum pertinentiis . Yea, it hath been adjudged, That by the Grant of a Manor, without making any mention of the Advowson, the Advowson also passed, because it was parcel of, and appendant to the Manor . And it hath been ever held, That by the Common Law an Advowson is a Temporal Inheritance, for that it lieth in Tenure, and may be holden either of the King, or of a Common person; and hath been held of the King in Capite, or in Knights Service . And were a Quare Impedit hath been brought, the Plaintiff hath counted, that the Defendant held the Advowson of him by Homage and Fealty . And it hath been agreed, that an Advowson doth lie in Tenure, and that the Lord may distrain in the Glebe-Lands for Rents and Services, the Patron's Cattle, if any be there found upon the Land, but not the Cattle of a Stranger .

(7.) Other Reasons, it seems, there are at the Common Law, which prove, That an Advowson is a Temporal Inheritance; for that a Writ of Right of Advowson lieth for him, who hath an Estate in an Advowson in Fee-simmple, or Right of an Estate therein to him and his Heirs in Fee-simple. Which Writ being Quod clamat tenere de te , doth suppose a Tenure, and lieth not only for the whole Advowson, but also for some part thereof. As also because a Praecipe quodreddat lieth for it, as hath been Adjudged . As also that a Common Recovery may be suffered of an Advowson, as hath been likewise Adjudged . As also because an Advowson, as other Temporal Inheritances, may be forfeited by Attainder of Treason or Felony, or lost by Usurpation, six months Plenarty, Recusancy, Outlawry, Negligence or Lacks of Presentment, Translation, or Cesser, and given away in Mortmain . As also for that the Wife shall be endowed thereof, and have the third Presentment; and the Husband shall be Tenant thereof by the Courtesie; also it is successively devisable among Coparceners, that the priority of Presentment shall be in the eldest Sister; likewise it may pass by way of Exchange for other Temporal Inheritance; and albeit during the vacancy of the Church it be not in itself valuable, yet otherwise it is as to an Incumbent; and by Grat of all Lands and Tenements an Advowson doth pass, if not by Livery, yet by Deed is transferable as other Temporal Inheritances , and pass with the Manors whereunto they are appendant by Prescription, unless there were before a severance by Grant, Deed, Partition, or other Legal Act ; which Prescription is so requisite to Appendancy, as without which it cannot well be at all .

(8.) An Advowson in Gross is understood as under a more beneficial qualification, than that which is Appendant; and that which is Appendant, may by severance become an Advowson in Gross: And therefore in the Case, where a man being seized of a Manor whereto an Advowson was Appendant, and by Deed granting one Acre belonging to that Manor unà cum Advocatione Ecclesiae, did further by the same Deed give and grant the said Advowson; the Question was, whether the Advowson did pass as Appendant to the Acre, or as an Advowson in Gross? And the better Opinion was, That by that Grant the Advowson was severed from the Manor, and was become in Gross; for that the Deed shall be taken most beneficial for the Grantee to have the Advowson in Gross, and not as Appendant to the Acre. But in that case it was Agreed, If the whole Manor had been granted, then the Advowson had passed as Appendant, and not in Gross . Yet an Advowson Appendant to a Manor, descending to divers Coparceners, making Partition of such Manor without mentioning the Advowson, remains Appendant notwithstanding such Division and Severance from the Manor : Yea, although the Manor of D. to which an Advowson is Appendant, be granted, and by the same Deed the Advowson also of the Church of D. So, as it is named no otherwise than in Gross, yet it shall thereby pass only as Appendant .

(9.) If the King makes a Lease for life of a Manor, to which an Advowson is Appendant, without making any mention of the Advowson, the Advowson remains in the King as in Gross; as was granted by the Justices: And it was said by them, That in such case by Grant of the Reversion, Habendum the Reversion with the Advowson, the Advowson passeth not to the Patentee, for that the Advowson was severed, and became in Gross as to the Fee . And in another Case, where it was found before Commissioners, That A. was seized of a Manor, to which an Advowson was appendant, and that he was a Recusant convict; whereupon two parts of the Manor were seized into the Kings hands, who leased the Manor, with Appurtenances, and all profits and commodities, and Hereditaments to the same belonging, unto J. S. for 21 years, if A, &c. and afterwards the Church became void. In this Case it was held, That albeit there was no mention in the seizure of the Advowson, yet the Presentment belonged to the King, and that the King alone should Present. Secondly, That there were no words in the Kings Grant to J. S. to carry away the Advowson from the King, and that notwithstanding that Grant, the Advowson remained still Appendant to the Manor .

(10.) By words implying merely matter of profit or things gainful, as Cum omnibus commoditatibus, Emolumentis, proficuis, advantagiis, and the like, an Advowson will not pass, because it is contrary to the nature of an Advowson regularly; and therefore the Advowson of a Vicarage appendant to a Prebend, passed not by a Lease with such words of several parts of the Prebend to which such Advowson was appendant . Not will an Advowson appurtenant to a Manor, pass by the Grant of an Acre of Land parcel of that Manor cum pertinentiis; otherwise, if the Grant be of the Manor itself cum pertinentiis . Yet in a Case where the King being seized of a Manor to which an Advowson was appendant, granted the Manor to J. S. for life, and then granted the Manor to J. D. after the death of J. S. Habendum cum Advocatione, and then by Parliament the King reciting both the Grants, confirmed them by Parliament: yet it was Adjudged in that Case, That the Advowson did not pass . Nor will an Advowson (if once Appendant) pass without special words of Grant thereof, which may not be strained in the construction thereof to an unusual or unreasonable sense, for which reason an Appropriation will not pass by the name of an Advowson; but (as aforesaid) an Advowson of a Vicarage may be Appendant to a Prebend; All which hath been Resolved in the fore-cited Case . And if Tenant in Tail be of a Manor to which an Advowson is appendant, the Church being full, and he grants proximam Advocatione, and then dies; by his death the Grant becomes merely void, as was also Resolved in Walter and Bould 's Case .

In a Quare Impedit, The Case was between the Chancellor and Scholars of Oxford, and the Bishop of Norwich, and others. The Plaintiff counted upon the Statute of 3 Jac. That J. S. being Owner of an Advowson, 2 Jac. was a Recufant convict, and that afterwards the Church became void, and so they by the Statute ought to Present. One of the Defendants pleaded, That the Advowson was appendant to a Manor, and that two parts of the Manor were seized into the Kings hands by Process out of the Exchequer, and that the King by his Letters Patents granted the Two parts to the Defendant with the Appurtenances, and granted also all Hereditaments (but Advowsons were not mentioned in the Letters Patents) and so said, the Presentation did belong to the Defendant: It was Resolved, That the Advowson did not pass by the word [ Appurtenances ] without mention of Advowson or words Adeo plena & integra, & in tam amplo modo & forma; as the Recusant had the Manor.

(11.) In case a Patron be Outlawed, and the Church becoming void a Stranger doth usurp, and presents his Clerk to the Avoidance, and Six months pass, and afterwards the King, being entitled to the Avoidance by reason of the Outlawry, bring a Quare Impedit against the Incumbent as being in wrongfully, and remove him: By this means the Advowson is recontinued again to the Rightful Patron, whereof he was ousted by the Usurpation, who upon the reversal of the Outlawry shall Present, in case the Church becomes void again .

(12.) A man hath Three Avoidances granted him of one Church at one time and by one Deed; The Church becomes void; the Grantor by Usurpation presents his Clerk, who is Admitted, Instituted, and Inducted, afterwards the Church becomes void again. In that case the Grantee shall present to the Second Avoidance, for that the former Presentation made by the Grantor usurping, did not put the Grantee out of all the Avoidances; and Adjudged accordingly .

(13.) A. seized of a Manor with an Advowson appendant, presented B. who was Admitted, Instituted, and Inducted; afterwards A. fells the Manor to which the Advowson was appendant, unto J. S. The Church becomes void by the death of B. whereupon the Queen 15 Feb. 1588. Present J. D. by these words, viz. Per mortem naturalem Incumbeatis ibid. vacant. who thereupon 20th of the said Feb. was Admitted, Instituted, and Inducted by Letters of Institution, Per Dominam Reginam veram & indubitatam Patronam. The said J. D. dies: The King presents R. in these words, viz. Ad nostram Praesentationem sive ex pleno jure, sive per Lapsum Temporis, sive alio quocunque modo spectant. The only Question was, Whether, notwithstanding all this matter, the Advowson did remain Appendant or not? And it was Adjudged by the Court, That the Advowson remained Appendant, notwithstanding the Queens presentation of J. D. For it appeared, there was no color of Title to the Queen to present; no Lapse, for the Presentation, Institution, &c. were all in the same month, wherein the Advoidance was: And it was no Usurpation by the Queen, because the Presentation supposed a Right where none was, and so was void; for the Queen meant to do no wrong: And upon the same reason the Presentation of R. afterwards by the King was void. And it was then further holden by the Court, That the Presentation of J. D. being void, it was but a Collation of the Bishop, which makes no disappendancy, nor so much as a plenarty against the Rightful Patron, but that he may bring his Quare Impedit when he will; and if the Bishop receive his Clerk, the other is out ipso facto .

(14.) Although an Advowson be a kind of Reversion of a right of Presentation to a Living or Benefice called Spiritual, yet it is now in the nature of other Temporal Inheritances; and therefore he that hath this Right in him, may either devise it by Will, or grant it by Deed, in Fee, or for life, or for years, as other things . And in regard an Advowson or Jus Patronatus refers to and respects not the Oblations and Tithes belonging to the Church, but rather the Building thereof, with the Ground whereon it is built, and the Endowment thereof; if therefore any debate or controversy should happen to arise touching any of these last mentioned, it might prejudice the Patron as to his Right to the Advowson; but if the controversy be only touching the other, viz. the Oblations or Tithes, whether Great or Small, the Jus Patronatus will remain good and entire to the Patron notwithstanding such Controversy, provided the Suit doth not extend and be for a fourth part of the whole belonging to the Church, Lindw. de Foro Comp. cap. Circumspecte, verb. Item si Rector, & gl. ibid. verb. quarta pars. And he to whom the Right of Advowson of any Church appertains, is termed Avowe for distinctions sake, to discriminate him from those who sometime Present in the Name of another, as a Guardian that presents in the Name of his Minor: as also to difference him from such as have only for term of their Lives, or of years, or by Intrusion or Disseisin, the Lands to which an Advowson appertains; the Avowe, properly and strictly taken, being only he who may Present in his own Right and in his own Name .

(15.) It hath been Adjudg'd, That an Advowson belonging to a Prebend will not pass by a Lease thereof, albeit it hath in it these words, viz. Commodities, Emoluments, Profits and Advantages; because all these four words being of one sense and nature, imply things gainful, which is contrary to the nature of an Advowson regularly, as aforesaid; yet an Advowson may be yielded in value upon a Voucher, and may be Assets in the hand of an Executor ; and in the foresaid Case of London verse. &c. it is said, That an Appropriation, nor the Advowson of it, will not pass by the name of an Advowson, yet an Advowson will be contained under the name of a Tenement . And where the King granted that Monks should have all their Possessions of the Abbey in the Vacation for their sustentation; Ruled, that they should not have the Advowsons, because no sustentation arose from them ; nor will an Advowson, though it be appendant, pass in the Kings Grant, without special words ; yet in the Case of a Recusant convict, to whose Lands an Advowson is appendant, the seizure of Two parts of his Land for the King is a Seizure by consequence of two parts of the Advowson, without mention of it ; and if the King have but Two parts of an Advowson, yet he shall Present alone, for no Subject can be Tenant in Common with the King; who (though he be no party to a Quare Impedit ) yet if his Title appear clear for him against both parties, shall have a Writ awarded for him to the Bishop . Or if the King join issue in a Quare Impedit, which is not found fully for him, yet if a Title do any way appear, the Court must award a Writ to the Bishop for him .

(16.) A. brought Quare impedit against D. The Plaintiff counted that the Defendant had disturbed him to Present ad Vicariam de D. and shown, That the Queen was seized of the Rectory of D. and of the Advowson of the Vicarage of D. and by her Letters Patents gave unto the Plaintiff Rectoriam praedictam cum pertinentiis, & etiam Vicariam Ecclesiae praedict. And it was holden by the whole Court, That the Advowson of the Vicarage by these words doth not pass; nor so in the Case of a Common person, much less in the Case of the King: But if the Queen had granted Ecclesiam suam of D. then, by Walmsley Justice, the Advowson of the Vicarage had passed .

(17.) Although he, who after the death of a Parson Incumbent hath Right of Presentation in him, doth not upon a Disturbance bring a Quare Impedit not Darrein Presentment, but suffereth a Stranger to usurp upon him; yet he may have a Writ of Right of Advowson; but this Writ lieth not for him, unless he claim to have the Advowson to him and his Heirs in Fee-simple ; which Advowson is valuable, though the Presentment be not .

(18.) The Queen seized of an Advowson being void, the Ancestor of P. Presented, and so gained it by Usurpation, and then the Church being void he Presented again, his Clerk dies, and then the Queen grants the Advowson to Y. the Plaintiff, who brings a Quare Impedit in the Queens Name, supposing that this Usurpation did not put the Queen out of Possession: It was argued, That the Grant could not pass without special words, because it is in the nature of a Chose in Action: And Dyer, Mead, and Windham held, That this Usurpation did gain possession out of the Queen, and that she should be put to her Writ of Right of Advowson; but the Opinion of Anderson Cheif Justice was clearly, That the Queen was not out of Possession; for he said, That it was a Rule in our Books, that of a thing which is of Inheritance, the act of a Common person will not put the Queen out of possession: But if she had only a Chattel, as the next Advowson, then perhaps it is otherwise. But Mead and Windham very earnestly held the contrary, relying on the Book of 18 E. 3. where Shard said, That if the King had an Advowson in his own Right, and a Stranger, who had no Right, happen to Present, it puts the King out of Possession. And the King shall be put to his Writ of Right, as others shall . The Defendant alleged Two Presentations in his Ancestor after the Title of the King, and demanded Judgment if the King should have a Writ of Possession, and the Plea was admitted to be good. But after Pasch. 25 Eliz. Judgment was given for the Queen, for that she might very well maintain a Quare Impedit, and the two Presentments did not put her out of possession .

(19.) In a Quare Impedit by G. against the Bishop of L. and D. Incumbent: The Case was, That a Manor with the Advowson Appendant was in the hands of the King, and the Church became void, and the King grants the Manor with the Advowson: If the Grantee shall have the Presentation, or the King, was the question. All the Justices held clearly, That the Avoidance would not pass, because it was a Chattel vested. And Periam said, that in case of a Common person without question an Advowson appendant would not pass by such Grant; for if the Father die, it shall go to his Executor: but if it be an Advowson in Gross, in case of a Common person there is some doubt: But in the Principal Case all the Judges held ut supra, and said, That so it was in 9 E. 3. 26. Quare Impedit 31. and in Dyer in the Case of the Church of Westminster: But F. N. B. is contrary, 33. N. .

(20.) Of Advowsons there are three Original Writs, whereof one is a Writ of Right, the other two of Possession, viz. Darrein Presentment, and Quare Impedit. And where an Advowson descendeth unto Parceners, though one Present twice, and usurpeth upon his Co-heir; yet he that was negligent shall not be clearly bar'd, but another time shall have his turn to Present when it falleth . And by the Statute of 3 Jac. 5. every Recusant Convict is utterly disabled to Present to any Ecclesiastical Living, or to Collate or Nominate to any Donative whatsoever, the Advowson of every such Recusant being left to the disposition of the Universities of Oxford and Cambridge . Also by the Statute of 13 E. 1. 5. it is directed, what Action shall be maintained by him in the Reversion, who is disturbed to Present after the Expiration of a particular Estate; where there is also provided a Remedy for him in the Reversion or Remainder, or others that have right, where there is an Usurpation of an Advowson during any particular Estate: And that Judgments given in the Kings Courts touching Advowsons shall not be avoided by Surmizes, but by lawful means . Likewise it is Statute-Law to hold, That Advowsons shall not pass from the King but by Special words; for when the King doth give or grant Land or a Manor with the Appurtenances, unless he make express mention in his Deed of Advowsons of Churches, when they fall, belonging to such Manor or Land, they are reserved to him, notwithstanding the word [ Appurtenances, ] albeit among Common persons it hath been otherwise observed ; nor is it lawful to purchase an Advowson, during the dependancy of a Suit at Law concerning the same .

(21.) If a Feme Covert be seized of an Advowson, and the Church becomes void, and the Wife dieth, the Husband shall Present . Where Parson and Vicar be Endowed in one Church, and the Vicarage becomes void, the question is, To whom the Advowson of the Vicarge doth belong, and who in that case shall be said to be the Patron of the Vicarage? Whether the Patron of the Parsonage, or the Parson? It seems the Books at Common Law, the Judges and the Court, were divided in Opinion touching this point ; some of the Judges were of Opinion, That the Advowson of the Vicarage appertains to the Parson; Others, that it belongs to the Patron: Such as inclined, that it is in the Patron , gave for reason, That the Ordinary cannot make a Vicar without the assent of the Patron, 5 E. 2. Quare Impedit 165. puts the Case, That although the Vicarage be Endowed with the assent of the Patron and Ordinary, yet the Advowson of the Vicarage doth remain in the Parson, because the same is parcel of the Advowson of the Parsonage . And 16. E. 3. Grants. 56. it was a question, Whether by the Grant of the Advowson of the Church, the Advowson of the Vicarage did pass? and there it was said by Stone, That it doth pass as Incident to the Parsonage . And in regard the Vicar is as the Parsons Substitute, and his Endowment originally only as a Maintenance for him in officiating the Cure for the case of the Parson, whose Concern it is to see that he be a fit and able person sufficient for the Cure, it should thence seem rational that the Parson should be his Patron, to Present such an one to the Vicarage as shall be sufficient for the Cure; for which reasons the Patronage of the Vicarage should seem rather to belong unto the Parson, than to the First Patron of the Parsonage Appropriate.

(22.) An Advowson cannot, it seems, at the Common Law be called a Demesne, for that it is not such a thing as a man hath a Manual occupation or possession of, as he hath of Lands, Tenements, and Rents, whereof he may say in his Pleading, That he was seized thereof in his Demesn as of Fee, which he cannot say that hath only the Advowson of a Church, because it lies not, as the other, in Manual occupation: And therefore in the case of Advowson of a Church, he may only say that he was seized as of Fee, and not in his Demesn as of Fee , whether it be an Advowson in Gross or Appendant, which Appendancy is held to be for the most part by Prescription, and must relate to such things as are in their own nature of a perpetual continuance; for which reason it is, That Advowsons cannot be said to be Appendant to Rents, Services, and the like, because such things are extinguishable . And although an Advowson be not properly said to be a Demesn, yet it may be Appendant to a Demesn, as of Lands or things Corporeal and Perpetual, and therefore (as supposed) not to a House of habitation, merely quatenus such, yet to the Soyl, whereon the House is erected; whereby the Law (which hath the clearest prospect of Casualties at a distance) hath provided, that the Advowson shall stand, though the House fall ; but an Advowson Disappendant and in Gross, which in man hath alone, and not by reason of any other thing, but severed from the Lands to which it was Appendant, such an Advowson is exempt from divers prejudicial Incidents which the other, viz. the Appendant, cannot well avoid. And where a Subject or Common person hath an Advowson Appendant to a Manor, and there be an Usurpation upon him, by a Presentation made by a Stranger, whose Clerk is in for Six months, though this makes the Advowson of such Common person Disappendant to his Manor; yet it is otherwise in case of the King, who may grant the Advowson notwithstanding such Usurpation; for a man cannot put the King out of possession either by Presentation or Usurpation, as hath been Adjudged . Nor doth the King's Presentation by Lapse sever the Advowson from the Manor, or cause it to become disappendant, as in Gawdy 's Case against the Archbishop of Canterbury and Others, was likewise Adjudged; in which Case it was also said by Habard Chief Justice, That neither doth a wrongful Collation of the Bishops make any Disappendancy, nor any binding Plenarty against the true Patron; but that he may not only bring his Quare Impedit when he please, but also Present upon him seven years after . Also, whereas it was said before, That an Advowson cannot be Appendant to things Extinguishable, as to Rents, Services, and the like, so it seems at the Common Law an Advowson in Possession cannot be Appendant to a Reversion expectant upon an Estate for life; for the Case was, The King seized of a Manor with an Advowson Appendant, granted the Manor to J. S. for life, and then granted the Manor to J. D. after the death of J. S. Habendum una cum Advocatione; and then by Parliament the King reciting both the Grants, confirmed them by Parliament, yet the Advowson passed not . Finally, whereas also it hath been Adjudged (as aforesaid) that the King cannot be put out of possession either by Presentation or Usurpation, this seems to refer only as to the Kings Advowson, and not as to his present Presentation; for the Opinion of Sir H. Hobart Chief Justice is, That although the King may be dispossessed of his present Presentation, he cannot be so of his Advowson, and therefore he may still grant it, notwithstanding the Usurpation, as was Judged in a Writ of Error, upon a Judgment given to the contrary, between the King and Campion for the Vicarage of Newton Valence .

(23.) A Donative in the Kings Gift may be with Cure of Souls, as the Church of the Tower of London is a Donative in the Kings Gift with Cure; as in the Case of Fletcher and Mackaller, where Information was brought upon the Stat. 31 Eliz. of Simony for procuring him to be promoted to the Church of the Tower for money; and per Curiam, it well lies .

(24.) The Queen hath the Advowson of the Vicarage of H. and grants the Vicarage to J. S. It was the Opinion of all the Justices, that the Advowson passeth not; for that the Vicarage is another thing than the Advowson of the Vicarage . The Queen seized of a Manor, to which an Advowson was appendant, granted the Manor cum Advocatione Ecclesiae, the Church being then void: It was Adjudged the Avoidance did not pass, but the Queen should Present pro hac vice . And in the Queen and Hussie 's Case it was Resolved, That a double Presentation would not put the Queen out of possession, if she hath Right . And in Stephens and Clerks Case it was Resolved, That the Grant of the next Avoidance to one during the Avoidance, is void in Law .

CHAP. XX.

Of Appropriations.

• 1. The great Antiquity of Appropriations; a Conjecture of their Original; whether Charles Martell was the occasion thereof? they were prohibited in England anciently by the Pope; whether they can be otherwise than by the King, or some Authority derived from him?
• 2. How the End and use of Appropriations is changed at this day from what it was in the Original Institution thereof.
• 3. Appropriators why called Proprietarii; The care of R. 2. in making Provision for the Vicar in case of Appropriations; Requisites of Law to make an Appropriation.
• 4. A further discovery of the Original, use, and ends of Appropriations, and under what qualifications.
• 5. Whether Appropriations were anciently grantable to Nunneries?
• 6. Appropriations not now to be questioned, as to their Original.
• 7. A Vicarage endowed may be Appropriated, but not to a Parson.
• 8. Three considerable Points of Law resolved by the Justices touching Appropriations.
• 9. Whether an Advowson may be Appropriated without a Succession? Appropriations usually were to Corporations or Persons Spiritual.
• 10. How a Church Appropriate may be disappropriated.
• 11. In Appropriations the Patron and his Successors are perpetual Parsons.
• 12. Whether an Appropriation of a Parsonage without endowment of the Vicarage be good? Also, whether an Appropriation may be made without the Kings License?

(1.) IT is a question at this day undecided, Whether Princes or Popes were the first Authors of Appropriations? the practice whereof by each of them is of great Antiquity; but whether in imitation of Charles Martell 's Sacrilegious President (the first by whom Tithes were ever violated in the Christian World) is but a Supposition rather than any Assertion among Historians. It was long since Traditionally Recorded in History, that about the year 650. when the said Charles Martell, Father of Pipin, after King of France, in defense of his Country against the Huns, Goths, and Vandals, had slain no less than 34500 of those Infidel Sarazens in one Battle, he did not restore to such of the Clergy of France their Tithes, as from whom under a fair pretence of supporting the charges of the War thereby, he had (upon a Promise of Restitution thereof so soon as the War should cease) obtained the same; but instead thereof gratified such of the Nobility, as had assisted him in the War, by the grant thereof to them and their Heirs forever. But whether this Sacrilege (if it be true) had such a malign influence upon succeeding Princes in After-ages, and other Kingdoms, and also upon the Popes, as some Historiographers do more than conjecture, is not so evident as that which is reported by Ingulphus Abbot of Crowland, touching Eight Churches to have been Appropriated to that Abbey by several Saxon Kings; and though by their Charters, yet whether by such exclusively to all Ecclesiastical Authority, is not so certain, as that William the Conqueror, without asking leave of the Pope, Appropriated three Parish-Churches to the Abbey of Battle, which he built in memory of his Conquest; and his youngest Son H. 1. nigh twenty in one day to the Cathedral of Sarum by his Letters Patents, together with the Tithes of those Parishes which his elder Brother William, Sirnamed Rufus, had depopulated and disecclesiated in New-Forest in Hantshire. Notwithstanding which, the Pope (who understood his Supremacy in matters Ecclesiastical better than to part with it upon any Presidents of Temporal Usurpations) doth frequently in his Decretals, without any contradiction, rather assume than arrogate this Right unto himself, as a Prerogative of the Apostolic See, and granted to several Religious Orders this Privilege of taking Ecclesiastical Benefices at Lay-men's hands by the mediation of the Diocesan, who at a moderate and indifferent rate (as one Moity of the Annual profits of the Benefice) was to be a Medium or Expedient between the Religious House and the Incumbent; but in process of time, partly by the remissness of the Bishops in that point, and partly by the Covetousness of the Monks and Friers in those days, the Incumbents proportion became at last so inconsiderable, that Pope Urban the Fifth by his Legate Othobon, about the year 1260 was forced to inhibit all the Bishops here in England from Appropriating anymore Churches to any Monastery or oaths Religious Houses, save only in such cases where Charity might prevail in derogation of Law; and under this Proviso also, That the Bishops should assign a competent proprotion of the Parochial Fruits for the Maintenance of the Incumbent, according to the annual value thereof, in case the new Appropriators did it not within Six months next after such Appropriation; but this Constitution not taking the effect expected, a convenient Maintenance for the Vicar was otherwise provided for by Two Statutes, the one made by R. 2. the other by his Successor H. 4. So that upon the whole it may be rationally infer'd, that these Appropriations originally came, partly by the Act of Ecclesiastics, and partly by the Laity. But what way soever they came, this is and hath been held for Law within this Realm, That albeit the Pope takes upon him to be Supreme Ordinary, yet no Appropriations made by him, or by any Authority derived from him, were ever allowed or approved of by the Laws of this Realm; it being held, That no Appropriations within this Realm can be made but by the King, or by Authority derived from him, and by his License, and that all other Appropriations are void in Law. An Appropriation may be by the King Sole where he is Patron, but it may not be by the Patron Sole: Grendon 's Case in Plowden. & 17 E. 3. 39. An Appropriation cannot be without the King's License. Ward 's Case Poph. Rep. Nor will the Objection hold against the King, to say, No man can make an Appropriation of any Church, having Cure of Souls (the same being a thing merely Ecclesiastical, and to be made by some Ecclesiastical person) but he only who hath Ecclesiastical Jurisdiction; for such Jurisdiction the King hath, and is such a Spiritual person, as may of himself Appropriate any Church or Advowson, because in him resides the Ecclesiastical Power and Jurisdiction. And therefore in a Case of Commendams it was long since held, That an Appropriation made by the Pope, could not be good without the King's License. The like in a Case of Avoidance was vouched in Cawdrie 's Case, That the Entry into a Church by the Authority of the Pope only, was not good, and that he could not Appropriate a Church to Appropriatees to hold to their own use. And in Gyendon 's Case it was Resolved by the Justices, That the Ordinary, Patron, and King, ought to be assenting to every Appropriation; and that the Authority which the Pope had usurped in this Realm, was by Parliament, 25 H. 8. acknowledged to be in the King, who as Supreme Ordinary may Appropriate without the Bishop's Assent.

(2.) It seems therefore without any contradiction most evident, That Appropriation or Impropriation, at the Original thereof was, when the Religious Houses of the Romish Church, and the Religious persons, as Abbots, Priors, and the like, had the Advowson of any Parsonage to them and their Successors, obtaining License of their Holy Father the Pope, as also of Kings, and of their Ordinaries, that they and their Successors should from thenceforth be the Parsons thereof, that it should thenceforth be a Vicarage, and that a Vicar should serve the Cure. So that at the beginning of this Spiritual Monopoly of Appropriations, they were made only to such Spiritual persons as were qualified to Administer the Sacramental Ordinances, and perform Divine Service. Afterwards the Grant thereof was gradually enlarged, and extended to Deans and Chapters, though Bodies Politick, and as such not capable of performing such Divine Services; yea, and (which was most Ridiculous as well as Impious) to Nunus, which were Prioresses to some Nunnerics, but not Female-Preachers, as in these days. All which was under a Pretence of maintaining Hospitality; and to supply all defects hereby occasioned, there must be the Invention of a Vicar, as the Appropriators Deputy, to serve them and the Cure, for which he had and hath the Tithe of Mint and Cumin, and such other small ossals of Tithes, as might be spared out of the weightier Granaries thereof without breach of the Laws of Hospitality, thereby Sacrilegiously robbing the Church to enrich themselves. Thus the poor Vicar shall have something like a certain portion of the Benefice, whilst the Abbot and the Covent, and their Lay-Successors, shall be the Parsons, and receive the main Profits, and so live by the Altar without waiting on it, and be Re-baptized by the Law with the name of Parsons Imparsonces. This was that Anciently, which we now call Appropriation, which cannot be made to begin in the Parson's Life-time without his Assent; and is so called, because they hold the Profits ad proprium suum usum; but if such Advowsons happen to be recovered by Ancient Title, then and in such case the Appropriation of the Parsonage is annulled .

(3.) So that from the Premises it is evident, That this Appropriation or Impropriation is an Annexation of an Ecclesiastical Benefice (which originally was as it were in nullius Patrimonio ) to the proper and peculiar use and benefit of some Religious House, Bishopric, Dean and Chapter, College, &c. Quod Divini juris est, id nullius est in bonis. Instit. de Rer. Divis. §. Nullius. And it is supposed, That such as are Impropriators are so denominated, for that now and hereby they are as Owners of a Feesimple by reason of the perpetuity of their Title, whence called Proprietarii, whereas the Parsons of any Ecclesiastical Benefice are properly, regularly, and ordinarily accounted but Vsusructuarii, nor were they any other Originally, and not Domini as having any Right of Fee-simple in them . It is further asserted by Dr. Cowell , That before the Reign of R. 2. it seemed to be lawful to appropriate all the Provenues of an Ecclesiastical Benefice to an Abby or Priory, provided they found one to serve the Cure; but then withal, that King, though he did not suppress such Spiritual Monopolies, yet made a Law whereby he Ordained, That in every License of Appropriations to be thenceforth granted in Chancery, it should expressly be appointed and contained, That the Diocesan of the Place should take care to provide an Annual competency or convenient sum of Money, to be yearly issuing and paid out of the Parsonage-Fruits of that Parish towards the maintenance of the Poor thereof, and for a sufficient subsistence and endowment of the Vicar . By the Statutes of 15 R. 2. pl. 6. and 4 H. 4. cap. 12. it is Provided, That where a Church is Appropriated, a Vicar ought to be Endowed. If the Church be full, the consent of the Diocesan, Patron, and Incumbent are necessary to an Appropriation, after the Kings License first had and obtained in Chancery: But if the Church be void, then the Diocesan and the Patron, upon such License from the King, may conclude it . And as to the Dissolution of an Appropriation, the Patron's Presentation of his Clerk to the Ordinary, with his Institution and Induction thereupon, is sufficient to effect it, and puts the Benefice instatu quo .

(4.) Although Appropriations at their Original were tolerated only to persons Ecclesiastical, and that in order to their better Hospitality, yet now they are become as Lay-Inheritances, and adapted as well to persons Secular as Ecclesiastical, and to Bodies Corporate as well as to persons Private or Individual, who by virtue of their Right and Title to a Parsonage or Spiritual Benefice, may take the Profits thereof to their own proper use, maintaining only a Vicar upon the place to serve the Cure. Anciently and Originally these Appropriations came from the Pope, afterwards tolerated by Kings, and with the consent and approbation of the Ordinary. So that now Appropriators and Appropriations are no other than Lay-Parsons & Lay-Parsonages; which Lay-Parsons as they are the Proprietaries, the Common Law allows them to be called the Incumbents, and him, that hath the Church by Appropriation, Parson Imparsonee; and although they are said to be perpetually Appropriate ; yet may be Dissolved and become Propriate again, as in case a Corporation to which it belonged, should be Dissolved; or in case the Advowson should be Recovered by a Title more Legal and more Ancient than that of the Appropriation; which as it was originally tolerated only to Spiritual persons, so never without the Ordinary's Consent and approbation; consonant whereunto are the Seventh and Eighth Canons of the Council held at Gangra, where a Curse is pronounced upon all such as shall presume to give or receive the Church-Fruits, otherwise than by the Bishops Dispensation, or of such other as by the Bishop shall be appointed thereunto. Nor was it ever in the Primitive times held lawful for mere Lay-men and Secular persons to have anything to do with the Church Revenues; It was an Observation of Stephen Bishop of Rome, in the second Century in his second Epistle, Laicis quoque, quamvis Religiosi sint, nulla tamen de Ecclesiasticis Facultatibus disponendi legitur unquam tributa facultas; which long after was also repeated in the Council of Lateran under Innocent the Third, c. 44. And in the filling of such vacant Appropriations as were granted to Religious Houses, the Bishop was impower'd by Law to oblige the Proprietaries to set out for the Vicar Incumbent such a convenient Portion, as the Bishop in his Judgment should be pleased to allot. Vid. Alex. 3. ad Epise. Wigorn. De Praeb. & Dig. c. de Monach.

(5.) Whereas it hath been formerly hinted, §. 5. that Appropriations have heretofore been granted to Nunneries, Hobard Chief Justice is express against it, That a Benefice with Cure could not be Approprietated to a Nunnery, though the Pope made many de facto, Citing Dyer in Grindon 's Case, saying, That it was a thing Abominable, both against the Law of God , and the Law of this Realm; for Beneficium non datur nisi propter Officium. Nor is it a sufficient Answer to say, the Cure might be served by a Curate for them; for the question is not, How they might make a Curate, but how themselves were capable; for it must radically vest in the first Grantee, before it can go in title of Procuration or Deputation to any other: For the proper and operative words which make an Appropriation, are such as must make the Patron and his Successors perpetual Parsons; yet if a mere Lay-man, or one wholly illiterate be Presented, Instituted, and Inducted: this is not a mere Nullity, but he is a Parson de facto, as having all the Ceremonies to make him such, and his Insufficiency must receive Examination, yet no Dispensation can make him a lawful Parson, not subject to Deprivation, because it is Malum in se; but in the other Case the Incapacity appears in itself . Nor are Appropriations regularly grantable over, neither can they endure longer than the Bodies, whereunto they were first Appropriate; because it carries not only the Glebe and Tithes (which may be granted away) but it doth also give them the Spiritual Function, and doth make the Parsons of the Church, and doth supply (so Hobart Chief Justice) Institution and Induction, which being the highest parts of Trusts, cannot be estranged: And therefore the Instrument of Appropriation runs in these words, viz. That they and their Successors (not their Assigns) shall be Parsons, or by Periphrasis hold the Church in proper use . Likewise when an Appropriation was made by the King as the Supreme Ordinary, or by a Bishop as the Ordinary under him, the Instrument thereof did run in these or the like words, viz. (if by the King) Authoritate nostra Regali; (if by the Bishop with the King's Assent) then it was Authoritate nostra Ordinaria, Ecclesiam Parochialem de B. tali, &c. Annectimus Appropriamus, & unimus per Praesentes.

(6.) Appropriations of Ancient time are not now in these days to be questioned as to the Original of them, if they have ever been so reputed and taken for Impropriations . To which purpose it was Resolved in the time of Queen Elizabeth in Chancery by Egerton Lord Chancellor of England, being assisted with the Principal Judges, That although an Advowson doth not pass by the Grant of the King in strictness of Law, by the words cum pertinentiis; yet it shall be intended in respect of the Ancient and continued possession, that there was a lawful Grant of the King to H. B. &c. and all shall be presumed to be done, which might make the Ancient Appropriation good: And the Reason thereof there given is, for that if the Appropriation had been drawn in question in the Life-time of any of the Parties to it, they might have shown the truth of the matter: But after so many Successions of Ages, in which the Church was esteemed to be rightfully Appropriated, the Appropriation shall not now be drawn in question . For the same reason a Procedendo was refused to be granted in Chancery in the Case of the Lord St. John of Bletso and the Dean and Chapter of Gloucester, the Court then giving for Reason, because the Defendant and those from whom he claimed, time out of mind had had the possession of a Parsonage as Impropriate (saving for some short time;) and because it shall be a dangerous President for Owners of Impropriations, to maintain the Appropriations to be Perfect in all points and circumstances requisite to an Absolute Appropriation, the Appropriations being made of Ancient time . The like Resolution was given by the Court in Hunston and Cockett 's Case, viz. That whether an Appropriation be good or not, cannot now be called into question, but shall be intended to be good, and to all requisite Circumstances .

(7.) An Appropriation cannot in any case be made by the Patron himself only; yet where the King is Patron, it may be made by him Sole. And although upon every Appropriation there ought to be an Endowment of a Vicar, yet a Vicarage itself Endowed, may (as hath been held by the whole Court) be Appropriated, but not to the Parson, and (as in the Book 21 H. 6.) is such a Vicarage, as may afterwards be dissolved . And if a Lease be made of a Parsonage Impropriate by one, who hath not anything therein during the life of the Incumbent, it will be void; nor can an Appropriation be made to a Church which is Full of an Incumbent, but by Special words . It hath also been held, That a Vicarage Perpetual could not be dissolved after the Statute of 4 H. 4. and that the Pope had not any power to make any Ordinance against that Statute, by which he hath not any Right to meddle with Advowsons, Benefices, &c. and that by his Bulls he cannot dispence with the Law, though they tend in ordine ad Spiritualia .

(8.) Touching Appropriations there were Three considerable Points in Law, Resolved by the Justices in Grendon 's Case: (1) That none is capable of Appropriation but a Body Corporate or Politick Spiritual, which hath a Succession: For that the effect of an Appropriation as to the first Institution thereof, was to make the Body Politick perpetual Incumbent, and to have the Rectory, and that he hath the Cure of all the Souls of the Parishioners: and therefore he must be a Spiritual person. (2) That the King, Ordinary, and Patron, ought to be assenting unto every Appropriation; and that the Authority which the Pope had usurped in this Realm, was by Parliament, An. 25 H. 8: acknowledged to be in the King; and the King being Supreme Ordinary, might of his own Authority and Jurisdiction make an Appropriation without the Assent of the Bishop. (3) That an Appropriation may be made by Apt words, when the Church is Full (as to say) That the Parson who is a Spiritual person, after that the Church shall be void, shall be Parson, and may retain the Glebe, and the Fruits of the Church to his proper use; and that the same shall be a good Appropriation, when the Church shall be void by death or otherwise .

(9.) It is brought by way of Report to us, That it was the Opinion of the Master of the Rolls in the great Case of Consultation, which was argued in the Exchequer Chamber, the 18 H. 6. 21. a. That an Advowson could not be Appropriate without a Succession, although that the Incumbent purchased the Advowson by License to hold to his Own use. Where it was further said, That if a Prior were seized of an Advowson to him and his Heirs, and he purchase License of Appropriation, and that he and his Successors might hold the Advowson to their own use; yet the Advowson shall descend to his Heirs: But in such case, if he would have the Appropriation to be good, it were best to alien the Advowson, and after to re-purchase it to him and his Successors; and then the Appropriation will be good . All Appropriations have been usually to Corporations or persons Spiritual, and not to Bodies Politick, consisting of mere Lay-men, or Lay-Corporations. And in Alden and Tothil 's Case it was in question, Whether the King, since the Statute of 25 H. 8. might by his Letters Patents Appropriate a Church Parochial, which was before Presentative, unto a Lay-Corporation, all the Members of the Corporation being mere Laymen: which Case was not then Resolved .

(10.) As a Church Parochial might be Appropriated: so a Church which is Appropriated to a Spiritual Corporation, may become disappropriate, if the Corporation be-dissolved . Also if the Advowson of a Church were by License granted to a Prior and his Successors, and afterwards the same Church were Appropriated to him and his Successors, so as thereby they became perpetual Parsons Imparsonees: In that Case if the Wife of a Grantor were endowed of the Advowson, and Presented a Clerk, who was Admitted, Instituted, and Inducted, the Appropriation would be defeated forever; for the whole Estate of the Parson Imparsonee is thereby avoided: And so it was Adjudged, 2 E. 3. 8. sed Quaere. For in the Case of Lancaster and Lucas , it was held by the Court, That in such Case the Church was Disappropriated but during the life of the Wife: and after her death it should remain as Appropriated .

(11.) Sir H. Hobart Chief Justice, in the Case of Colt and Glover against the Bishop of Coventry and Lichfield , says, That the proper and operative word that doth Appropriate, is to make the Patron and his Successors Perpetual Parsons; and in the Case of Wright against Gilbert Gerrard and Richard Hildersham , That the Instrument of Appropriation runs in these words, That they and their Successors (not their Assigns ) shall be Parsons, or by Periphrasis hold the Church in proper use; and the words of Appropriating are, that they may hold Ecclesiam & Rectoriam in proprios usus, as in Grindon 's Case; and says further, that Appropriations cannot endure longer than the Bodies, whereunto they were first Appropriate, because it carries not only the Glebe and Tithes, but doth also give the Spiritual Function, makes the Parsons of the Church, and supplies Institution and Induction.

(12.) A Prior was seized of the Advowson of a Parsonage; the Church being void, the Bishop gave him License to hold it to his proper use, and there was not any Endowment of the Vicarage. The Jury found the Statute of 4 H. 4. of Appropriations: and of 27 H. 8. which gives Priories, &c. to the King: Whether the Appropriation were good, there being no Endowment of the Vicarage: And, whether the Appropriation without the King's License was good, was the Question. Resolved, That whether the Appropriation be good or not, cannot now be called in question; but it shall be intended to be good, and have all requisite Circumstances: But in this Case, because the Defendant claimeth per Praesentationem Regis ration Lapsus; Whereas the King, if he had any Title to Present, it was Jure Coronae, the Presentment of the Plaintiff was utterly void, and the Plaintiff had no Title, who brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes .

CHAP. XXI.

Of Commendams.

• 1. What a Commendam is, or the Legal description thereof.
• 2. The King may dispence with the holding of divers Benefices in Commendam, notwithstanding the Canon of the Lateran Council against Pluralities.
• 3. Three Degrees of Commendams by the Canon Law.
• 4. A description of a Semestral and Temporary Commendatory.
• 5. The provision the Pope made in granting Commendams; certain Benefices in the Church of Rome never given in Commendams.
• 6. What the Canon Law in Commendams ad Tempus or Perpetuo.
• 7. The grand Case of a Commendam at the Common Law, between Kiffin and Ascough, and therein great variety of Learning touching that Subject.
• 8. Several Considerations in Law touching Commendams.
• 9. An Irish Case, with great variety of Learning, in reference to this Subject.

(1.) COmmendam (Ecclesia Commendata ) is a Benefice or Ecclesiastical Living, which being void, is commended to the charge and care of some sufficient Clerk, to be supplied until it may be conveniently provided of a Pastor: And this was the Original of what we now commonly call Commendams. Durand. de Benefic. lib. 5. cap. 7. That person to whom the Church is thus Commended, hath the Fruits and Profits thereof only for a certain time; whereby the nature of the Church is not changed, but is as a thing deposited in his hands as it were in Trust, being concredited only with the care and custody thereof, which may be revoked. Thus when a Parson of a Parish is made the Bishop of a Diocese, there is a Cession of his Benefice by the Promotion; but if the King gives him power to retain his Benefice, he shall continue Parson thereof, and shall be said to hold it in Commendam . So that it may properly be thus defined, Commenda est Ecclesiae Custodia alicui Commissa in tempus gratia evidentis necessitatis & utilitatis. Gloss. in verb. Commendare, c. Nemo deinceps, de Elect. in lib. 6. & Andr. in dict. Gloss. For hereby the Bishop commits the care and custody of a Vacant Church to someone, whom he Constitutes as a general Administrator thereof. Corras. de Sacerd. mater, p. 1. c. 6. nu. 3. & dict. c. Nemo. for Commendare in this sense is no other than Deponere. l. Publius, ff. Depositi, & l. Commendare, ff. de verb. Sign. And he to whom the same is so committed is in the Law termed Commendatarius, having the custody of a Vacant Church and the Fruits thereof only for a time; and the Beneficium Commendatum we call Commendam. Petrus Gregorius makes this Commendam of a Church to be on a double account, viz. either in utilitatem Ecclesiae, or Commendatarii; In the former case, he says, the Commenda gives no Title to the Commendatary of the Benefice, but is only a Custody or Trust which may be revoked, and consequently repugnant to the nature of a Benefice, which is Perpetual: In the other Case, the Benefice is held to be a Commenda made in utilitatem Commendatarii, which he may hold and possess as long as he lives. Petr. Greg. de Benef. cap. 10. nu. 13.

(2.) By a Canon of the Lateran Council no person Ecclesiastical could hold Two Benefices with Cure of Souls simul & semel, but by the taking of a Second the former would be void. Cons. Later. & F. N. B. 34. L. & Co. par. 4. 75. & Lindw. Consil. Provin. de Praebend. cap. Audistis; yet might the King it seems by the Common Law, notwithstanding that Canon, grant Dispensations to hold divers Benefices in Commendam; as at this day he may notwithstanding the Stat. of 21 H. 8. For the Statute of 25 H. 8. that takes away the Popes usurped power of granting Commendams, &c. in this Realm, doth vest it in the Crown de jure, as also doth the Statute of 1 Eliz. and (from and under the Crown) in the Archbishop of Canterbury, his Commissaries, &c. And as heretofore the Pope did by Usurpation in this Realm, so now de jure & ex Regali Authoritate, may the King grant unto a Consecrated Bishop a Dispensation Recipere & obtinere Beneficium cum Cura animarum, and to hold the same in Commendam .

(3.) In the Case of Colt and Glover against the Bishop of Coventry and Lichfield, according to Sir Hen. Hobart Lord Chief Justice, out of the Canons, Commendams are said to be of Three Degrees, one Semestris, another Perpetua vel ad vitam, a third Intermedia or Diuturna, sed Limitata; and sometimes called Temporaria or Temporalis, vel ad certum Temporis spatium Limitata. Clem. v. Extra. l. 3. de Praebendis, c. 2. The Commenda Semestris did arise out of natural equity, that in the time of the Patrons respite given him to Present, the Church should not be without a Provisional Pastor, which was a Law of Necessity agreeable to the Law of Nature. But after the Lapse justly incurred, the Commendam is to cease, or then the Ordinary may Collate. The Commenda Perpetua vel ad vitam, is that which cannot be for a less time than for the life of the Commendatary absolute. And the Commenda Intermedia, diuturna, or Temporalis, vel ad certum temporis spatium Limitata, is, when a Commenda is to a person not for his life absolutely, but so long as he shall be Bishop of such a place, or the like. Each of which Degrees of Commendams doth refer to the Commendam obtinere, capere, & apprehendere. A Dispensation Commendam recipere, which shall make a Title, ought to have three Incidents; (1) It ought to be, Recipere & convertere in usus proprios. (2) It ought to be ad utilitatem Ecclesiae, vel Parsonae. (3) It ought to have the Assent of the Patron. And he that is but mere Commendatarius is Accountable to the Ordinary. Vid. Case Evans and Ascough, in Latch. Rep. And not to the Commendam retinere, which in truth is no Commendam, though commonly so called; but is only a Faculty of Retention and Continuation of the Benefice in the same person and state wherein it was, notwithstanding something intervening, as a Bishopric or the like, which without such a Faculty would have avoided it.

(4.) The Semestral Commendatary is not reputed Praelatus, but Procurator & Administrator, habens titulum Canonicum; It doth make Fructus suos, but ad providendum sibi & Ministris; and what remains, is to be converted to the use of the Church. Greg. X. in Council. Lugd. An. 1275. Gloss. in cap. Nemo. 15. De Electione in Sexto. And John d'Atbon, upon Othobou 's Canon or Constitution De Commendis Ecclesiarum, says, That Commendare idem est quod Deponere, seu Custodiae Committere: And all agree that such a Commendatary is not Praelatus, but Procurator; habet tamen Legitimam Administrationem ad Colligend. & providend. Ministris; ea vero quae supersunt, ad utilitatem Ecclesiae convertenda. Commendare (ut ait Papin) nihil aliud est quam deponere. l. Lucius, ff. Deposit. & l. Commendare, ff. de verb. Sig. & l. Publia, ff. Deposit. & Gloss. ibid. But as to a Perpetual Commendam, Perpetuity, and the disposal of the Fruits must concur . And as a Patron cannot Present to a Church Full, so neither can a Commendam be made to a Church certain that is then Full; for there is no difference betwixt a Commendam and a Presentation, but that the one Presents the Parson to the Church, the other commits the Church to the Parson, both being incompatible when the Church hath his proper Rector; The Canons also speaking of Commendams, rely much upon Ecclesias vacantes, necessitatem & utilitatem Ecclesiae vacantis. And Commendams were not made anciently in general terms, to any Churches uncertain, but to some certain Church then void. Also the Patrons consent is necessary to a Commendam, secundum omnes, Patroni consensus, & omnium qui laedi possunt, requiritur; And again. Quod satis observant Praelati, qui nisi Praesentati per Patronos, non faciunt Commendas. Gloss. in Council. Lugd. & Othob. Provin. Hob. Rep. in dict. Cas. Colt and Glover, verse. Bishop of Covent. and Lichfield. Likewise, it is further asserted by Sir Hen. Hobart in the Case aforesaid, That the Temporary Commenda brings with it so many Incongruities, Inconveniences, and Absurdities in Law, as cannot be born; for thereby the Church is neither altogether void, as it remains in the Case of a Commendam Semestris, which is but a Sequestration of Fruits and Cure till the Patron Presents; neither is the Church absolutely Full, for then it should be Plena & Consulta, h. c. plena de possessore, & consulta de Rectore .

(5.) Commenda in the Canon Law hath a nigh affinity to Collation: Rebuff. in §. Statuimus, in ver. conferantur. de Collat. and is a Canonical Institution, or a Canonical Title: cap. Dudum, in 2. de Elect. Etsi in titulum non detur Ecclesia, and when the Commendatary dies, the Benefice is void, ut alia in titulum possessa: Rebuff. de pacif. Possess. nu. 42, 43, 44. The Pope was wont to provide by a Commendam, when he gave a Benefice in Custodiam, that he that had the Custody thereof, should not thereof have fructus suos: cap. Nemo, de Elect. in 6. but should restore the same: Can. placuit 10. q. 3. unless he expressed in the Grant (as he often did) that the Commendatary should convert the Fruits thereof to his own use. It is in Law provided by the Commendam, that the Commendatary shall not be, nor said to be Titularius Ecclesiae concessae, because he hath another at the same time, and together with that he cannot aliam habere in titulum: cap. dudum, in 2. de Elect. cap. fin. 21. q. 1. For the Law compares the Relation that is between a Rector and his Church to that of Man and Wife, and in express terms calls it Matrimonium; cap. sicut vir. q. 1. and says, it is as odious to have more Benefices than one at once, as more Wives than one at once; cap. de multa de Praebend. whence it may aptly be infer'd, That Plurality is a kind of Spiritual Bigamy or Polygamy. Moreover, by the Canon Law a Commendam may be either for a certain time, or for life: cap. Extirpandae, §. quia vero. De Praeben. & c. nemo. de Elect. in 6. And during the vacancy of a See the Chapter may grant the Commendam ad tempus: c. significatum. de Praeb. & dict. c. nemo. If the Commendam be granted in Perpetuity or for life, it is vice tituli: Nam ad tempus Collatio fieri nequit Beneficii: c. si gratiose. de Rescript. & c. satis perversum. 66. Dist. In the Church of Rome there are certain Benefices which were never wont to be given in Commendam, such as that of the Holy Ghost in Sicily, St. John of Jerusalem, St. Anthony, the Blessed Virgin Mary, and others; and this by a Constitution of Pope Alexander the Sixth as a mark of grace; because they were given to the Fraternity of these Orders in titulum. Rebuff. de Commendis, nu. 41. Prox. Benef.

(6.) Whether any man Inferior to a Bishop, may Ecclesiam Commendare, is a Question moved by Rebuffus, who holds it in the Affirmative, provided it be a Commenda only ad Tempus, that is, only for Six months: Rebuff. Respon. 71. de Commenda. which opinion Panormitan seems to be of, by saying, Inferiorem à Papa non posse Perpetuo Commendare, sed ad Tempus sic: Panorm. in c. si constiterit, in 1. notab. de Accusat. For the Canonists of the Romish Church do hold, That Commendare in perpetuum potest solus Papa, Ad tempus sex mensium quilibet Ordinarius potest: Likewise Panormitan says further, That a Chapter ( Sede vacante) possit usque ad sex menses Commendare: Panor. & Felin. in c. cum olim, 11. q. de Major. & obed. & Jo. Francisc. in Tract. de Offic. & potest. Capituli Sede vacante. in 2. part. q. 3. whence Rebuffus concludes, that any other qui Beneficia confer potest may do the like; it being as a Rule in Law, That illud videtur permissum, quod non est prohibitum: c. nam concupiscentiam. de Consti. & L. praecipimus. C. de Appellat. The Canon Law, to which only we are beholding for the clearest apprehensions we can possibly have of Commendams, allows a very extensive Latitude to the Pope in the granting and revoking thereof; but this doth not concern us, further than as the Popes Ecclesiastical power, heretofore exercised in this Realm by way of Usurpation, is now vested in the King de jure; yet it will be agreed on all hands, That a Commendam in the very nature of it, is merely and properly Custodial, that Church or Benefice being then granted in Commendam, quando in custodiam, seu Custodiae causa datur: c. nemo. de Elect. in 6. And as he who hath only the Custody of a thing, non facit fructus suos: so neither he (according to the Canon Law) who hath a Commendam, without the Popes special grant thereof to the Commendatary: c. placuit. 10. q. 3. Rebuff. de Commenda, who yet by the same Law possit expensas facere ex reditibus Beneficii Commendati, sumere ex eo alimenta, & debita persolvere, sicut is qui titulum habet: c. 1. de Solutio. hoc afferit Archidiac. in cap. qui plures. 21. q. 1.

(7.) The grand Case of a Commendam was that of Evans and Kiffin against Ascuth, which being two days argued by the Judges, and by Noy Attorney, is acutely and succinctly Reported thus, viz. In Trespass: Dr. Thornbury being Dean of York was chosen Bishop of Limbrick in Ireland: But before Consecration or Confirmation, he obtained a Patent with large words, Non obstante retinere valeat in Commendam the said Deanery, &c. And afterwards he was chosen Bishop of Bristol; and then also before Installation he obtained another Patent, with a more ample Dispensation of retaining the Deanery in Commendam. It was Agreed by all, That the Church or Deanery, &c. in England shall be void by Cession, if the Parson, or Dean, &c. be made a Bishop in Ireland. For the Canon Law in that is one through all the World. Also Ireland is governed by the Laws of England, and is now as part of England by Subordinacy. Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Case; Confirmation under the Great Seal of England of Presentation to a Church in Ireland, of the Heir of the Tenant of the King; and that a Dispensation under the Great Seal of England is good in this Case, without any Patent of it in Ireland, vid. 8 Ass. 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good. Note 20 H. 6. 8 Scir. fac. sued in England to Repeal a Patent under the Great Seal of Ireland, vid. the Irish Statute 2 Eliz. cap. 4. That an Irish Bishop may be made under the Great Seal of England. Note, Stat. 1 E. 6. the Irish Bishops shall be Donative by Patent of the King, under the Great Seal of England; yet the King may let them be chosen per Conge d'Eslire, &c. (1) Noy Attorney Argued at Bar, and so stated the Points of the said Case by themselves: If a Commendatary Dean by a Retinere in Commendam may well Confirm a Lease made by the Bishop; for it is Agreed, That a Commendatary Dean by Recipere in Commend. cannot Confirm, because he is but a Depositarius. Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary shall be sued by that Name, and by such a Commend. he may take the profits, and use Jurisdiction, and yet is not a Dean complete. Note, he may make a Deputy for Visitation, but not for Confirmation of Leases. Note, if there be two Deans in one Church, both ought to Confirm. Vid. Dy. 282. Co. Inst. 30. a. (2) The Second point, if such a Bishop be chosen to another Bishopric, if now the first Church in Commend. (admitting that there was a Full Incumbent) be void presently by the Election and assent of the Superior ( viz. ) the King: And it seemed to him that it was, because there need not be a new Consecration; and he vouch'd Panormitan, 2. par. 101. The Bishop of Spires was chosen Bishop of Trevers, and had the assent of the Pope, and that he came to Trevers, and there found another in possession; and he would have returned to the former Bishopric, and could not. He also Cited 8 Rep. Trollop 's Case, That the Guardianship of the Temporalties cease by the Election of a new Bishop. Note, that Serjeant Henden, who argued on the contrary, vouch'd Mich. 4 Jac. May, Bishop of Carlisle made a Lease to the Queen, and a Commission issued out of the Exchequer to take it, and the Dean and Chapter Confirmed it before the Inrolment of it; and yet Adjudged good: That Case was for the Castle of Horne. First, the Judges having Argued two days, Resolved (1) That all Commendams are Dispensations, and that Cession commenced by the Canon and Council of Lateran. (2) That the King may dispense with that Canon, 11 H. 7. 12. For the Pope might, and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Exposition veteris, and not by Introduction novi Juris; and by that Statute a concurrent power is given to the Archbishop of Canterbury, and may be granted to the King, or by the Archbishop, &c. (3) That the Dispensation after Election to the first Bishopric and before Consecration, &c. and also the Dispensation after Election to the second Bishopric, and before Confirmation, is good enough in both Cases, and he remains a good Dean to Confirm, &c. and afterwards the Judgment in the Case, being an Action of Trespass, was given accordingly.

(8.) A Commendam is to be granted Necessitate evidenti, vel utilitate Ecclesiae suadente, and in the Infancy of the Church quando defuerunt Pastores they were necessary: A Commendam ordinarily is but for six months, and he that hath it is Custos only; the other is extraordinary, and that is for life, and he is an Incumbent: The King by his Prerogative Royal may grant a Commendam without any Statute; yet if such Commendam shall be good, it may be very mischievous to the Patron: It is it seems agreed in the Books of the Common Law, that the use of Commendams in their first Institution was lawful, but not the abuse thereof; and that a perpetual Commendam, viz. for life, was held unlawful, and condemned by a Council of 700 Bishops. It is likewise Reported to us, That where the Incumbent of a Church was created a Bishop, and the Queen granted him to hold the Benefice which he had in Commendam: It was the Opinion of the Justices, That the Queen had the Prerogative by the Common Law, and that it is not taken away by the Stat. of 35 H. 8.

(9. ) In a Quare Impedit brought by the King against Cyprian Horsefall and Robert Wale, on a Special plea pleaded by Wale the Incumbent, the Kings Attorney demurred in Law: The Case in substance was this, viz. the Corporation of Kilkenny, being Patrons of a Vicarage within the Diocese of Ossery, Presented one Patrick Fynne thereunto, who was Admitted, Instituted, and Inducted. After that, during the Incumbency of the said Fynne; Adam Loftus Archbishop of Dublin, and Ambrose Forth Doctor of the Civil Law, being Commissioners Delegates for granting of Faculties and Dispensations in the Realm of Ireland, according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horsefall, then Bishop of Ossery, That the said Bishop unum vel plura Beneficia, curata vel non curata, sui vel alieni Jurispatronatus, non excedentia annuum valorem quadraginta Librarum, adtunc vacantia vel quae per imposterum vacare contigerint, perpetuae Commendae titulo adipisci, occupare, retinere, omnesque fructus ad Familiae suae sustentationem convertere, possit, juribus sive institutis quibuscunque in contrarium non obstantibus. Which Faculty or Dispensation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland, according to the Statute of 28 H. 8. c. 16. After this, viz. 20 May, An. 38 Eliz. Patrick Fynne the Incumbent died, whereby the said Vicarage being void, and so continuing void by the space of Six months, whereby the Bishop had power to Collate thereunto by Lapse, the said Bishop by virtue of the said Faculty or Dispensation adeptus est, occupavit, & retinuit the said Vicarage perpetuae Commendae titulo, and took the Fruits thereof to his own use, until the 13 Febr. An. 1609. on which day the Bishop died: After whose death the said Cyprian Horsefall, having purchased the next Avoidance of that Vicarage, Presented the said Wale, who was Admitted, Instituted, and Inducted: And afterwards the King Presents one Winch, who being disturbed by the said Horsefall and Wale, the King brought a Quare Impedit. Whether the said Bishop, when he obtained and occupied that Vicarage by virtue of that Faculty or Dispensation, were thereby made complete Incumbent thereof, so as the Church being full of him, no Title by Lapse could devolve to the King during the life of the Bishop, was the Principal point moved and debated in this Case. And in the Argument of this point (which was argued at the Bar first by the Counsel at Common Law, and then by two Advocates well versed in the Canon Law, and at the Bench by all the Justices) Two things were chiefly considered by those who argued for the Kings Clerk: (1) Whether the Bishop could by any Law have and hold that Benefice without such Dispensation or Faculty. (2) What effect or operation that Faculty or Dispensation shall have by the Law. As to the First, they held clearly for Law, That a Bishop by the Ancient Ecclesiastical Law of England, may not hold another Benefice with Cure in his own Diocese: and if he hath such Benefice before his promotion to the Bishopric, that it becomes void when he is created a Bishop. And this is the Ancient Law of England, as is often said in the Bishop of St. David 's Case, 11 H. 4. & 41 Ed. 3. 5. b. agrees therewith. The Reason is, for that the Bishop cannot visit himself, and he that hath the Office of a Sovereign shall not hold the Office of a Subject at the same time; as Hankeford said in the said Case of 11 H. 4. And on this Reason it is said in 5 Ed. 3. 9. That if a Parson be made a Dean, the Parsonage becomes void, for that the Dignity and the Benefice are not compatible. So no Ecclesiastical person, by the Ancient Canons and Councils, could have Two Benefices, with Cure simul & semel, but the first would be void by taking asecond. And this was the Ancient Law of the Church used in England long before the Statute of 21 H. 8. cap. 13. which was made in Affirmance of the Ancient Law, as appears in Holland 's Case. Co. par. 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. & N. Br. 34. l. And the Text of the Canon Law, which is the proper Fountain of this Learning, proves it fully; Decretal. de Praeben. & Dignit. c. de multa: Where it is said, De multa providentia fuit in Lateranensi Concilio prohibitum, ut nullus diversas Dignitates Ecclesiasticas, vel plures Ecclesias Parochiales reciperet, contra Sanctorum Canonum instituta, &c. Praesenti Decreto statuimus, ut quicunque receperit aliquod Beneficium, curam habens animarum annexam, si prius tale Beneficium habebat, eo sit ipso jure privatus, & si forte illud retinere contenderit, etiam alio spolietur, &c. And with this agrees the Text in Decret. Caus. 21. q. 1. viz. In duabus Ecclesiis Clericus conscribi nullo modo potest. So that it is evident, that the Bishop could not by any Law have or retain that Benefice within his Diocese without a Dispensation, which is Relaxatio Juris, and permits that to be done, which the Law had before prohibited. It is to be observed, That Commenda est quaedam provisio, and therefore Gomez. in Reg. de Idiomate, saith, That Commendare est Providere, & quod Commenda comprehenditur sub quibuscunque regulis de Provisione loquentibus. And by the Canon Law the Consent of the Patron is requisite, where a Benefice is given in Commendam. Lib. 6. Decretal. c. Nemo. where the Gloss saith, Ad Commendam vacabitur Patronus, & si qui alii ex tali Commenda laeduntur. Also in Constit. Othob. de Commendis it is said expressly, That Consensus Patroni ad Commendam requiritur. The Canon Law holds these Commendams as very prejudicial, and that in divers respects; and therefore says, That Experientia docet, occasion Commendarum cultum Divinum minui, Curam animarum negligi, hospitalitatem Consuetam & debitam non servari, ruinis aedificia supponi, &c. 6. Extra. cap Pastoris. And whereas it is said of a Bishop, That he is to be unius uxoris vir; the Canonists expound it, That he shall have but one Bishopric, or only one Cure, for they say, that per Commondam Bigamia contrahitur in Ecclesia: Therefore it was well Resolved by that good and pious Bishop, who (when another Benefice was offered him to hold in Commendam ) said, Absit ut cum Sponsa habeam Concubinam. But for the clearer understanding of the nature and difference of these Commendams, it is further to be considered, That Commenda Ecclesiae is nothing else but Commendatio Ecclesiae ad Custodiam alterius; and therefore Decret. caus. 21. q. 1. Qui plures, the Gloss there saith, Commendare nihil aliud est quam deponere. This Commenda or Commendatio Ecclesiae is divers, according to the nature of the Church, and the Limitation or Continuance of the Commenda: for a Commenda may be of a Church either Curatae or non Curatae; and it may be either Temporanea, viz. for a time certain, as for Six months, or Perpetua, viz. during the life of the Commendatary. A Church with Cure may not be given in Commendam, unless upon evident necessity, or the benefit of the Church, viz. to supply the Cure till provision be made of a sufficient Incumbent: And therefore by the Council of Lions it was provided, That a Parochial Church should not be given in Commendam, nisi ex evidenti necessitate, vel utilitate Ecclesiae; & quod talis Commenda ultra semestris temporis spatium non duraret: & quod secus factum fuerit, sit irritum ipso jure, &c. 6. Decretal. c. Nemo. But a Benefice without Cure may be given by the Canon Law for the subsistence of the Commendatary, vel ad mensam: In that sense the Canonists say, That Commenda is quasi comedenda, quia Ecclesiae quae traditur in Commendam quasi comeditur & devoratur, and such a Benefice may properly be given in perpetuam Commendam. Summa summar. tit. Commenda, art. 1, & 2. And by the Rule of the Canon Law, he that comes in per Commendam, is not Praelatus, sed Procurator tantum, & est nisi Custos, seu Administrator, & jus in Ecclesia non habet. 6. Decretal. c. Nemo. & Constit. Othobon. de Commendis, fo. 65. And therewith agrees 27 H. 8. 15. where it is said, That the Cardinal of York had the Abbey of St. Albans in Commondam, and yet was not the Abbot. In this Case of a Commendam in Davis Rep. the Original or invention of a Commendam is ascribed to Pope Leo 4. An. Dom. 848. aut eo circiter, as appears lib. Decretal. caus. 23. q. 2. where it is said, Unde Leo 4. scribit, Qui plures Ecclesias retinet, unam quidem Titulatam, alteram vero sub Commendatione tenere debet: For by the Ancient Canons and Councils a man could have but one Benefice, and yet it is by experience found convenient, that sometimes, viz. in case of Necessity or Utility of the Church, a man may have the Charge and Fruits of more Benefices than one; therefore was that Distinction invented and allowed, that although a man shall have but one Benefice in Titulo, yet he may have other Benefices in Commenda, viz. That another Benefice may be commended and committed to his Custody and Cure, until it be provided with an able Incumbent. But afterwards, there being great Abuses found in the granting of these Commendams by the Ordinaries (for omnium rerum quarum est usus, potest esse abusus, virtute solum excepta, says Aristotle ) another Canon was made in the Council of Lions, An. Dom. 1274. for reformation thereof, as appears lib. 6. Decretal. de Elect. & Elect. potesta. c. Nemo. Nemo deinceps Parochialem Ecclesiam alicui non Constituto in legitima aetate vel Sacerdotio Commendare praesumat; nec tali, nisi unam, & evidenti Necessitate vel Utilitate Ecclesiae suadente. Hujusmodi autem Commendam rite factam declaramus ultra Semestre temporis spatium non durare, &c. But the Gloss there saith, That Ista Constitutio non comprehendit Romanum Pontificem, ideo Romanus Pontifex potest Perpetuo Commendare. So that the Pope, notwithstanding that Canon, had power to give Benefices in perpetuam Commendam. And indeed after the said Council of Lions, as the Pope had reserved to himself the sole power of giving Benefices in perpetuam Commendam, so he reduced that power into act, and used and practiced the same in all Realms of Christendom: Specially the Popes that were resident at Avignon in France in the times of King H. 2. Ed. 1. Ed. 2. Ed. 3. were very liberal not only in granting these Provisions (contrary to our Statutes made in the times of King Ed. 1. & Ed. 3.) but in giving all sorts of Ecclesiastical Benefices in Commendam perpetuam. And as at first it was done for the support of the Dignity of Cardinals, as Pope Clement. 6. professed in his Epistle to Ed. 3. Hist. Walsingham, fo. 150. b. yet afterwards these Favors were purchased by other Ecclesiastical persons of all degrees, in all Nations, specially in England and Ireland. And whereas the Canon Law says, That a man hath a Cononical Title by virtue of a Commendam, that must be understood de Commenda perpetua, and not de Commenda Temporali; for the Commenda Temporalis is but a kind of Sequestration, and may be granted by every Ordinary pro tempore Semestri; and therefore such a Commendatary non est Praelatus, nec Maritus Ecclesiae, nec facit Fructus suos, sed est Administrator tantum, & Custos Ecclesiae. And such a Commenda non est titulus, nec facit titulum, sed est quoddam depositum, until the Church be provided with a sufficient Incumbent; and therefore such a Commenda is commonly granted when the Patron doth not Present an able person, or when the Church is Litigious. But the Commenda perpetua, which continues during the life of the Commendatary, cannot be granted by any inferior Ordinary, but only by the Pope in such Countries where he hath Jurisdiction, or by the King or his Delegates in this Realm, or such whose power therein is derived from him or confirmed by him. And this Commenda est titulus Canonicus; nam militat eadem ratio in perpetuis Commendis, quae in aliis Titulis. Lib. 6. de Electionib. c. Nemo. And so it hath been often adjudged in Rota, as Gomez affirms in Regul. de Trien. Possess. where he argues this point Pro & Con at large, and where he saith, That the Faculty of a perpetual Commendam is amplissima dispositio, & habet ubertatem verborum, viz. Licentiam & Facultatem fructus omnes percipiendi, & in proprios usus Convertendi, &c. Quae verba important Collationem & Titulum, & non Simplex Depositum.

CHAP. XXII.

Of Lapse.

• 1. What a Lapse is; the gradations, and Original thereof.
• 2. The difference between the Canon and Common Law, as to the time of Lapse; and when the Six months shall begin.
• 3. The King is Patron Paramount of all the Churches in England.
• 4. In what Cases the Patron is to take notice of the Avoidance at his peril, or not; and how the Six months is to be computed by the days.
• 5. A Lapse is not an Interest, but a Trust or Administration, and may not be transferred or granted over.
• 6. How or from what time the Six months shall be computed before the Lapse incur.
• 7. Whether a Bishop may Collate by Lapse after Six months, upon failure of the Clerks showing his Letters of Orders, or his Letters Missive or Testimonial?
• 8. In what case Tempus occurrit Regi in point of Lapse.
• 9. In what cases the King having Title of Lapse may lose his Presentment.

(1.) LApsus, or Lapse, is a slip or departure of a Right of Presenting to a void Benefice, from the Original Patron neglecting to Present (within Six months next after the Avoidance) to the Ordinary. Whence it is commonly said, That that Benefice is in Lapse or Lapsed, whereunto he that ought to Present, hath omitted or slipped his opportunity . This Lapse may happen and be, the Patron being ignorant of the Avoidance, as well as if he were acquainted therewith or privy thereto, except only upon the Resignation of the former Incumbent, or the Deprivation upon any cause comprehended in the Statute of 13 Eliz. cap. 12. In which cases the Bishop ought to give notice thereof unto the Patron. In this matter of Lapse there are Three gradations, ab Inferiore ad Superiorem, after the neglect of the true Original Patron, upon whose default (1) the Bishop of the Diocese, within whose precincts the vacant Benefice lies, shall Collate, unless the King be Patron. (2) If the Bishop Presents not within the next Six months, then the Metropolitan shall Present: And (3 lie ) if he Present not within the time by Law limited, then the King shall Present, for that he is Patron paramount of all the Benefices within his Realms; as also because the King and his Progenitors, Kings of England, have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts, whence lies no Appeal to any. Foreign pretended Power. The Rosell Summist indeed makes more Gradations in this matter, as from the Patron to the Chapter, from the Chapter to the Bishop, from the Bishop to the Metropolitan, from the Metropolitan to the Patriarch, and if none such, then to the Pope. Sed hoc nihil ad nos, part of whose happiness is an Index Expurgatorius of the last recited Premises. And although the Law is, That the Ordinary shall Present, in case the Patron doth not within Six months; yet the Law withal is, That if the Patron Present before the Ordinary put in his Clerk, the Patron of right shall enjoy his Presentation . And if the Ordinary surcess his time limited, he loses his power as to that Presentation, specially if it be devolv'd to the King: And when the Presentation is in the Metropolitan, he shall put in the Clerk himself, and not the Ordinary; and so there is no default in the Ordinary, though he Present not the Clerk of the Patron, if his time be past, in which case there is no remedy for the Patron against the Ordinary . This matter of Lapse is of very ancient practice, for Mich. 3. E. 1. B. Rot. 105. Staff. the Bishop of Coventry and Lichfield pleaded a Collation by Lapse Authoritate Concilii against the Prior of Landa to the Church of Patingham. And 6 E. 1. Rot. Paten. membra 25. in a Quare non admisit by the Abbot of St. Mary Eborum against the Bishop of Norwich, the Bishop made a Title by Lapse, viz. That he Collated Authoritate Concilii post Lapsum semestre, &c. And there afterwards in the Judgment it is said, Quia tempus semestre Authoritate Concilii non incipit versus Patronum nisi à tempore. scientiae, mortis, &c. (Q. what Council is here meant or intended) For P. 9 E. 1. B. Rot. 51. it appears that Lapse was given per Concilium Lugdunense post tempus semestre: The like also in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby 's Case, 62 ; yet in Bracton the Lapsus temporis is de Constitutione Lateranensi . And yet Briton, fo. 225. speaks of the Tempus Semestre or the Six months according to the Council of Lions; But Mr. Selden in his Book of Tithes, 390. says, That the Manuscripts of Breton have Lateran for Lions; and in fol. 388. holds, That this Lapse was received in the Laws of this Realm out of the General Council of Lateran, held in the year 25 H. 2. as the Learned Serjeant Roll observes in his Abridgment on this word of Lapse, where he also cites Hovenden, fo. 326. asserting, That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in these words or to this effect, viz: Cum vero Praebendas Ecclesias seu quaelibet Officia in aliqua Ecclesia vacare contigerit, vel si etiam mod • vacant, non diu maneant in suspenso, sed infra Sex menses personis, quae digne administrare valeant, conferantur; si autem Episcopus, ubi ad eum spectaverit, confer distulit, per Capitulum Ordinetur. And before the said Council the Patron was not limited to any time, but might Present at his pleasure without any Lapse . Touching other Presidents of great Antiquity relating to this Subject of Lapse, the Reader is here referred to that Learned Serjeant Rolle, in the forecited place of his Abridgment. And although according to the Gradations aforesaid the Lapse devolves from the Patron to the Bishop, from the Bishop to the Archbishop, from the Archbishop to the King; yet if after Lapse incur to the Metropolitan, and before Collation by him made the Patron Present, he may Present to the Ordinary of the Diocese, without Presenting to the Metropolitan. Contra H. 41 El. B. R. per Popbam ; for thereby he seems to redeem his neglect. But yet if Lapse devolve to the King, and then the Inferior Ordinary Collate by the Lapse, and his Clerk be Instituted and Inducted, it seems this doth not make a Plenarty against the King to put him to his Quare Impedit, but he may notwithstanding Present and oust the Clerk of the Ordinary; for when Lapse incurs to the King, it cannot be taken away by the Ordinary: And then when the Ordinary Collates without good Title, it makes not any Plenarty against him who hath the right as the King hath to Present; for a Lapse incurring to the King is not like that which incurs to the Metropolitan . But if a Patron Present, and his Clerk be Instituted, and remain Eighteen months without Induction, in that case there doth not any Lapse incur to the King; for the King hath not any Lapse, but where the Ordinary might have had it before . But if a Bishop dies, whereby the Temporalties are in the Kings hands, if during that time the Six months pass, whereby a Lapse happens, the King shall have it, and not the Guardian of the Spiritualties . Nor doth an Admittance of a Resignation by Fraud, take away the Kings Title; for in Comber 's Case against the Bishop of Cicester, where the Issue in a Quare Impedit was, If S. R. by covin between him and C, and R. did Resign into the hands of the said Bishop, if the King hath Title of Lapse, and a Resignation be made by fraud, and one Admitted, this shall not take away the Kings Title, for if the Kings Title appear upon Record, then shall go out a Writ for the King; but otherwise it is upon matter of Evidence, the King doth lose his Presentation as well by resignation as by death, where he hath Title to Present by Lapse, and doth not, except the Resignation be by Fraud . And in the Case of the Queen and the Archbishop of York and Bucks, it was Resolved by the Justices, That a Collation, although double or treble, cannot be an Usurpation against the King to put him out of an Advowson .

(2.) The Canon Law allows Two months more to an Ecclesiastical, than to a Lay-Patron, ere the Lapse shall be incur'd; the former having by that Law Six months to Present, the latter but Four. Summ. Angel. tit. Jus Patronat. §. 16. So the Law of Scotland: Pars. Couns. par. 1. c. 2. We need not inquire into the Reason of that difference or disproportion; let it suffice the Laity, That it was the Canonists pleasure to have it so, for reasons best known to their own interest; the Common Law impartially levels them both to one and the same equal standard of Six months. By the Common Law of England, as well Clerks as Laics have Six months to Present before the Lapse incur: Dr. & Stu. 116. b. Per la Com. Ley De Scoce Laici Patroni quadrimestre, Ecclesiastici vero Sex mensium spatium habent sibi concessum ad Praesentandum personam idoneam Ecclesiae vacanti. Skene. Regiam Majestatem, 10. b. But Jac. 6. pl. 1. cap. 7. Pl. 7. cap. 102. pl. 12. cap. 119, 158. Concedit Patrono Laico spatium Sex mensium, infra quod Praesentare debet. The Question is not so much, when the Term shall end and determine, as when it shall commence, and from what time the Six months shall be computed. The Answer falls under a double consideration, or is diversified according to the divers manners of Avoidances; for if by Death, Creation, or Cession the Church be void, then the Six months shall be computed from the Death, Creation, or Cession of the last Incumbent, whereof the Patron is to take Notice at his peril: But if the Avoidance be by Resignation or Deprivation, then the Six months shall begin from the time of Notice thereof given by the Bishop to the Patron, who is not obliged to take knowledge thereof from any other, than by signification from the Bishop . But in case the Avoidance were caused by an Union (for so it might be) then the Six months should be computed from the time of the Agreement upon that Union; for in that case the Patron was not ignorant of, but privy to the Avoidance; for there could be no Union made, but the Patron must have the knowledge thereof; and then it was to be appointed who should Present after the Union, as whether one or both, either jointly or by turns one after another, as the Agreement was upon the Union .

(3.) The Continuance of a Voidance of a Church by the several Lapses of Patron, Bishop, and Archbishops, derives the Title of Presentation at last to the King as Patron paramount of all the Churches in England; and wherever the Original Patron by Law ought to take notice of a Voidance at his peril, there and in such case by a Non-Presentation within Six months from the time of such Voidance the Lapse will ever incur: And generally by the Admission, Institution, and Induction to a Second Benefice, Prima Ecclesia vacat de persona of the Incumbent, & vacans continuat till new Induction . But when an Archbishop, Bishop, or other Ordinary hath given a Benefice of right devolute unto him by Lapse of time, and after the King Presenteth, and taketh his Suit against the Patron, who possibly will suffer that the King shall recover without Action tried, in deceit of the Ordinary or the possessor of the said Benefice; In such and all other like cases, where the Kings Right is not tried, the Archbishop, Bishop, Ordinary, or Possessor, shall be received to counterplead the Title taken for the King, and to have his Answer, and to show and defend his Right upon the matter, although that he claim nothing in the Patronage : so that the Ordinary may Counterplead the Kings Title for a Benefice fallen to him by Lapse. Also when the King doth make Collation or Presentment to a Benefice in another's Right, the Title whereupon he groundeth himself, may be well examined, that it be true; which if before Judgment it be by good information found to be otherwise, the Collation or Presentment thereof made may be Repealed, whereupon the true Patron or Possessor may have as many Writs out of Chancery as shall be needful. There are some Statutes (the King not being bound by Lapse of Time, for nullum Tempus occurrit Regi ) which are good remedies and reliefs for the Ordinary that hath Collated by Lapse, as also for the Clerk that is Collated; for otherwise a Common person might by Practice have turned out a lawful Collatee: to which purpose the Lord Hobart doth instance in a Case; A Common person no true Patron Presents within Six months, and the true Patron himself Presents not in time, whereupon the Ordinary Collates by the Lapse, against whom the Pretender brings a Quare Impedit, because his Clerk was refused, wherein he must needs prevail, if his Title be good: and it must be taken for good, because neither Ordinary nor Incumbent could deny it; for de non apparentibus, & de non existentibus eadem est ratio; which Inconvenience is remedied by the said Stat. of 25 E. 3. c. 7. Note, that Lapse doth not incur to the Ordinary by reason of his not examining the Clerk within Six months. Trin. 3 Jac. B. R. inter Palmer & Smith. Resolved per Cur.

(4.) If a Plea be depending between Two parties, and it be not discussed and determined within Six months, the Bishop may Present by Lapse, and he that hath the Right to Present, shall according to the Statute recover his Dammages . But it is expressly provided by the Statute of 13 Eliz. 12. That no Title to Collate or Present by a Lapse shall accrue upon any Deprivation ipso facto, but after Six months after Notice of such Deprivation given by the Ordinary to the Patron . But if the Church become void by Death, Creation, or Cession of the last Incumbent, the Patron is at his peril to take Notice of such Avoidances within the next Six months thereof . But if it become void by Deprivation or Resignation, the Clerk is not obliged to tender his Presentation to the Bishop, nor the Patron obliged to Present his Clerk, but within Six months next after Notice legally given him by the Ordinary of the Avoidance by such Deprivation or Resignation ; which Six months are to be calculated or computed by 182 days, and not by 28 days to the Month . Nor is there any Addition of time over and above the Six months allowed the Patron to Present from the Vacancy a Second Clerk, in case the former were legally refused by the Bishop . Yet the Ordinary may not take advantage of the Lapse, in case the Patron Present his Clerk, before the other hath Collated ; though it be otherwise with the Canonists: Lindw. c. Si aliquo evincente, &c. verb. Injuria. But if the Bishop Collate, and the Patron Present before Induction, in that case it seems he comes too late . And at the Common Law Sir Simon Degge in his Parsons Counselor makes it a doubtful Question, if the Church Lapse to the King, and the Patron Presents before the King take advantage of the Lapse, whether this shall avoid the Kings Title by Lapse? This (says he) is a Question by Dyer , though Hobart seems to be clear in it, that the King shall not have the benefit of the Lapse ; but adds that divers Authorities are against them . And in the Cases aforesaid, wherein Notice of Avoidance ought to be given to the Patron before the Lapse can incur, the Patron is not obliged to take Notice thereof from any person other than the Bishop himself, or other Ordinary ; which also must be given to the Patron personally, if he live in the same County; and if in another County, then Publication thereof in the Parish-Church, and affixed on the Church-Door, will serve turn, if such Notice doth express in certain (as it ought to do) the cause of the Deprivation, &c. : As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion, the Ordinary is to give the Patron Notice thereof, which Notice ought to be certain and particular . Before Lapse can incur against a Patron, Notice of his Clerks being refused by the Ordinary for Insufficiency, must be given to the person of the Patron, if he may be found, and it is not in that Case sufficient to fix an Intimation thereof on the Door of that Church to which he was Presented. D. 16 El. 327. 7. b. Adjudged.

(5.) It is said, That a Lapse is not an Interest naturally, as is the Patronage, but a mere Trust in Law. And if the Six months be incurred, yet the Patrons Clerk shall be received, if he be Presented before the Church be Filled by the Lapse . Observe 7 Eliz. Dyer 241. for it seems by that case, that the Patron should Present against the Kings Lapse, for he hath damage but for half a year. And Hob. Chief Justice says, That a Lapse is an act and office of Trust reposed by Law, in the Ordinary, Metropolitan, and lastly in the King; the end of which Trust is to provide the Church of a Rector, in default of the Patron; and yet as for him, and to his behoof. And therefore as he cannot transfer his Trust to another, so cannot he divert the thing wherewith he is entrusted to any other purpose. Nor can a Lapse be granted over, as a Grant of the next Lapse of such a Church, neither before it fall, nor after. If the Lapse incur, and then the Ordinary die, the King shall Present, and not the Executors of the Ordinary: For it is rather an Administration than an Interest; and the King cannot have a Lapse, but where the Ordinary might have had it before If an Infant-Patron Present not within Six months, the Lapse incurs. The Law is the same as against a Feme-Covert, that hath right to Present. 33 E. 3. Qua. Impedit, 46.

(6.) In the first Paragraph of this Chapter it is said, That Tempus Semestre authoritate Concilii non incipit versus Patronos nisi à tempore Scientiae mortis personae, that is, of the last Incumbent And so Adjuged upon a Writ in the time of E. 2. , and said to be per Legem & Consuetudinem Regni hactenus usitatas. As if the Incumbent die beyond Sea, the Six months are not computed from the time of his death, but from the time of the Patrons knowledge thereof; and so it was Adjudged in a Quare non admisit between the Abbot of St. Mary Eborum and the Bishop of Norwich, as aforesaid For the Six months are not reckoned from the death of the Last Incumbent, but from the time the Patron might (according to a reasonable Computation, having regard to the distance of the place where he was at the time of the Incumbents death, if he were within the Realm at that time) have come to the knowledge thereof; for he ought afterwards to take notice thereof at his peril, and not before, for that he was in some other County than that wherein the Church is, and wherein the Incumbent died . And if the Ordinary refuse a Clerk for that he is Criminous, in that case the Patron shall not have Six months to Present after Notice thereof given him, but of the Avoidance . The Law is the same in case of Refusal by reason of Illiterature : But if the Church be void by Resignation or Deprivation, the Six months shall be computed from the time of Notice thereof given to the Patron, and not from the time of the Avoidance : Yet if the Ordinary refuse a Clerk because he is Criminous, he is to give notice thereof to the Patron, otherwise the Lapse doth not incur . So likewise, if he be refused for Common Usury, Simony, Adultery, or other Notorious Crime, Notice thereof ought to be given to the Patron, otherwise the Lapse doth not incur . A Lay Patron ought to have Notice ere the Lapse shall incur, in case his Clerk be refused for Illiterature, otherwise as to a Spiritual Patron, because the Law presumes, he might well know of his insufficiency before he presented him . And if the Bishop who took a Resignation dies, the Lapse doth not incur to his Successor without Notice to the Patron .

(7.) In a Quare Impedit the Defendant pleaded, That he demanded of J. S. the Presentee of the Plaintiff to see his Letters of Orders, and he would not show them, and also demanded of him his Letters Missive or Testimonial, testifying his ability; and because he had not his Letters of Orders, nor Letters Missive, nor made any proof of them to the Bishop, he desired leave of the Bishop to bring them, who gave him a week; and he went away and came not again, and the Six months passed, and the Bishop Collated by Lapse: It was Adjudged in this Case, That these were no Causes to stay the Admittance of the Clerk, for the Clerk is not bound (understand it only at Common Law ) to show his Letters of Orders and Letters Missive to the Bishop, but the Bishop must try him upon Examination .

(8.) A Parson of the Church of S. of the value of Ten pound, took a Second Benefice without a Dispensation, and was Instituted and Inducted, and continued so for twelve years: The Patron presented J. S. who was Instituted and Inducted, and so continued divers years, and died. The Queen presented the Defendant C. ration Lapsus in the time of A. who was Instituted and Deducted. B. the Patron brought a Quare Impedit against the Ordinary and C. It was held by the Justices, That the Writ did well lie; and that Tempus occurrit Reginae in this Case, and that last Clerk should be removed. And it was held by the Justices, That upon a Recovery in a Quare Impedit, any Incumbent that comes in pendente Lite should be removed.

(9.) In the Case between Cumber and the Bishop of Chichester, it was Resolved (1) If Title of Lapse accrues to the King, and the Patron Presents, yet the King may Present at any time as long as the Presentee is Parson; but if he dies, or Resigns before the King Presents, he hath lost his Presentment. (2.) If the King hath Title by Lapse, because a Parson hath taken a Second Benefice, if the Parson dies, or Resigns his First Benefice, and the Patron Presents, whose Presentee Resigns upon Covin and dies, the King hath lost that Presentment