Abridgment of Ecclesiastical Laws

CHAP. XXIII.

Of Collation, Presentation, and Nomination.

• 1. What Collation is, and how it differs from Presentation.
• 2. Collation gains not the Patronage from the Crown.
• 3. The Ordinary's Collation by Lapse is only in the Patron's right.
• 4. What Presentation is, and how in ease of Co-heirs, or Joynttenants, or Tenants in Common.
• 5. Whether the Grantee of the next Presentation, not Presenting at the First Avoidance, shall lose the benefit of his Grant?
• 6. The Right of Presentation is not an Ecclesiastical, but Temporal Inheritance, and cognizable at the Common Law.
• 7. The power of the Ordinary in case of Coparconers, Joyntenants, or Tenants in Common, as to Presentation.
• 8. In what Case the Bishop hath Election, whose Clerk he will Admit.
• 9. Whether a Presentation is revokable before Institution?
• 10. Whether the Son may succeed his Father in the Church? and who may vary from, or repeal his Presentation.
• 11. What Nomination is, and the Qualifications thereof.
• 12. In what Case the Presentation is the Nomination, or both as one in Law.
• 13. In what case the Nominator shall have a Quare Impedit, as well as he that hath Right of Presentation; And there may be a Corrupt Nomination, as well as a Corrupt Presentation.
• 14. Whether the Collatee be Incumbent, if the Bishop Collate him within the Six months? And in what Case the Kings Presentation within the Six months may be an Usurpation or not.
• 15. Where the Ordinary Collates, the Patron is to take notice of it at his peril.
• 16. Who shall Present in case the Ordinary, to whom a Lapse is devolved, be within the Six months translated to another Bishopric.
• 17. A Resignation to a Proctor, without the Bishops Acceptance, makes not the Church void.
• 18. A Parochial Church may be Donative, exempt from the Ordinary's Jurisdiction, and is Resignable to, and Visitable by the Patron, not the Ordinary.
• 19. Where Two are to Present by Turns; what Presentation shall serve for a Turn, or not.
• 20. By the Canons the Son may not succeed the Father in the same Church.
• 21. To what a Presentation may be made.
• 22. The Kings right of Presentation as Supreme Patron.
• 23. In what case the Kings Prerogative to Present doth not take place.
• 24. In what Cases it doth.
• 25. To whom the Patronage of an Archbishopric belongs.
• 26. Whether Alien Ministers are Presentable to a Church in England?
• 27. In what Cases the Patron may Present de novo.
• 28. Difference between the King and a Common person in point of Presentation.
• 29. A Collation makes no Plenarty where it is tortious.
• 30. Presentation may be per parol as well as by Writing.
• 31. What amounts to a Revocation of the King's Presentation.
• 32. Causes of Refusal of the Clerk Presented.
• 33. Certain Law Cases pertinent to this Subject.
• 34. Whether Institution granted after a Caveat entered, be void?
• 35. What shall be held a Serving of a Turn, and good Plenarty and Incumbency, against a Patron in Severalty.
• 36. A Clerk refused by reason of his not being able to speak the Welsh Language.
• 37. What is the best Legal Policy upon every Presentation by Usurpation.
• 38. One of Two Grantees of an Advowson, to whom the other hath released, may Present alone, and have a Qua. Imp. in his own Name.
• 39. A Clerk refused for Insufficiency by the Bishop, may not afterwards be Accepted.

(1.) COllation in its proper signification, is the bestowing of a Benefice by a Bishop that hath it in his own proper right, gift, or patronage; distinguished from Institution only in this, That Institution into a Benefice is at the instance, motion, or Presentation of the Patron, or some other having pro tempore the Patrons Right, performed by the Bishop. Extra. de Instit. & de Concess. Praeben. &c. But Collation is, not only when the person is Admitted to the Church or Benefice by the Bishop or other person Ecclesiastical, but also when the Bishop or that other Ecclesiastical person is the rightful Patron thereof; or when the Bishop or Ordinary hath right to Present for Lapse of the Patron: and yet sometimes Collation is and hath been used for Presentation . And so Presentation, Nomination, and Collation, are commonly taken for one and the same thing in substance, though at times distinguished : And whereas it hath been a Question, If one hath the Nomination, and another the Presentation, which of them shall be said to be the very Patron; it hath always been taken to be the better opinion, that he who hath the Nomination, is Patron of the Church. And where an Abbot had the Presentation, and another the Nomination, and the Abbey surrendered to the King; he that hath the Nomination shall now have all; for the King shall not Present for him, that being a thing undecent for the King . But as to Collation and Presentation, they were in substance one and the same thing, as aforesaid : But to speak properly, Collation is where the Bishop himself doth freely give a Benefice, which is of his own Gift by right of Patronage or Lapse . This word [ Collation ] seems also to be frequently used when the King Presents; and hence it is that there is a Writ called [ Collatione facta uni post mortem alterius, &c. ] directed to the Justices of the Common Pleas, Commanding them to direct their Writ to a Bishop, for the Admitting one Clerk in the place of another Presented by the King, which Clerk (during the Suit between the King and the Bishops Clerk) is departed this life: For Judgment once given for the Kings Clerk, and he dying before his Admission, the King may bestow his Presentation on another . This Collation, Presentation, and Nomination, are in effect Synonima, being distinguished only in respect rather of Persons, than of Things.

(2.) Yet there may be a great difference betwixt Presentation and Collation, which gains not the Patronage from the King, as appears in the Case of the Queen against the Bishop of York, where the Queen brought a Quare Impedit against the said Bishop, and one Monk, and counted upon a Presentment made by King Hen. 8. in the right of his Duchy of Lancaster, and so conveyed the same to the Queen by Descent: The Bishop pleaded, That he and his Predecessors have Collated to the said Church, &c. and Monk pleaded the same Plea, upon which there was a Demurrer. And it was moved by Beaumont Serjeant, That the Plea is not good, for a Collation cannot gain any Patronage, and cannot be an Usurpation against a Common person, much less against the Queen, to whom no Lapses shall be ascrib • d: and although the Queen is seized of this Advowson in the right of her Duchy, yet when the Church becomes void, the right to Present vests in the Royal person of the Qu. and yet vid. the Old Regist. 31. Quando Rex praesentat non in jure Coronae, tunc incurrit ei Tempus. Hamm. Serj. By these Collations the Queen shall be put out of possession, and put to her Writ of Right of Advowson; but the same ought to be intended, not where the Bishop Collates as Ordinary, but where he Collates as Patron, claiming the Patronage to himself, for such a Collation doth amount to a Presentation; and here are two or three Collations pleaded, which should put the Queen out of possesion, although she shall not be bound by the First during the life of the first Incumbent. Vid. Br. Quare Impedit, 31. upon the abridging of the Case of 47 E. 3. 4. That two Presentments the one after the other shall put the King out of possession, and put him to his Writ of Right of Advowson, which Anderson denied. And it was holden by the whole Court, here is not any Presentation, and then no possession gained by the Collations: and although the Bishop doth Collate as Patron, and not as Ordinary, yet it is but a Collation. And there is a great difference betwixt Collation and Presentation; for Collation is a giving of the Church to the Parson, but Presentation is a giving or offering of the Parson to the Church, and that makes a Plenarty, but not a Collation .

(3.) The Collation of the Ordinary for Lapse is in Right of the Patron, and will serve him for a Possession in a Darrein Presentment, as appears by Colt and Glover 's Case against the Bishop of Coventry and Lichfield, where it is said, That the Ordinary, or he that presents by Lapse, is a kind of Attorney made by Law, to do that for the Patron, which it is supposed he would do himself, if there were not some lett; and thefore the Collation by Lapse is in right of the Patron, and for his turn, 24 E. 3. 26. And he shall lay it as his possession for an Assize of Darrein Presentment, 5 H. 7. 43. . It seems also by Gawdy 's Case against the Archbishop of Canterbury and others, That although a Bishop Collate wrongfully, yet this makes such a Plenarty as shall bar the Lapse of the Metropolitan and the King And this Collation by Lapse is an act and office of Trust reposed by Law in the Ordinary, Metropolitan, and King; the Title of Lapse being rather an Administration than an Interest, as in Colt 's Case aforesaid; which Title of Collating by Lapse may be prevented by bringing a Quare Impedit against the Bishop: Also where and in what Cases the bringing of that Writ against the Bishop shall or shall not prevent such Collation, appears in the Case of Brickhead against the Archbishop of York, as Reported by Sir Hen. Hobart Chief Justice .

(4.) Presentation is the Nomination of a Clerk to the Ordinary to be Admitted and Instituted by him to a Benefice void, and the same being in Writing, is nothing but a Letter Missive to the Bishop or Ordinary, to exhibit to him a Clerk to have the Benefice voided, the Formal force hereof resteth in these words, viz. Praesento vobis Clericum meum. Thus Presentation properly so called, is the act of a Patron offering his Clerk to the Bishop, to be Instituted in a Benefice of his Gift . It is where a man hath a Right to give any Benefice Spiritual, and presents the person to the Bishop, to whom he gives it, and makes an Instrument in writing to the Bishop in his favor; and in case there be divers Coheirs, and they not according in the Presentation, that which is made by the eldest of the Coheirs, shall be first Admitted; but if it be by Joyntenants, or Tenants in Common, and they accord not within Six months, the Bishop shall present by Lapse . By the Statute of 13 Eliz. cap. 12. a Presentation of an Infant to a Benefice is void. And although a Presentation, being but the Commendation of a fit person by the Patron to the Bishop or Ordinary to be Admitted and Instituted into a Benefice, may be done either by word alone, or by a Letter or other writing, yet the Grant of a next Avoidance is not good without Deed . But a Presentation, being no other than a Commendation of a Clerk to the Ordinary (as aforesaid) and only a thing concerning an Advowson, without passing any interest of the Inheritance of the Advowson, may be done by word only; upon which ground it was Resolved by the whole Court, That the Kings Presentation unto an Advowson Appendant to a Manor parcel of his Duchy, under the Great Seal of England, without the Seal of the Duchy, was well made, and good : Yea, and for the same Reason, for that a Presentation is but a Commendation, and toucheth not the Inheritance, was the Kings Presentation to the Deanery of Norwich held good, albeit in the said Presentation he mistook and mis-recited the Name of the Foundation of the Deanery .

(5.) A. seized of an Advowson in Fee, Grants Praesentationem to B: quandocunque & quomodocunque Ecclesia vacare contigerit, pro unica vice tantum; in the Grant there was further this Clause, viz. Insuper voluit & concessit, That the Grant should remain in force quousque Clericus habilis & idoneus shall by his Presentation be Admitted, Instituted, and Inducted. Afterwards A. grants away the Advowson in Fee unto S. The Church becomes void. S. Presents. The Church becomes void again. S. Presents G. upon a Disturbance of M. the Presentee of B. the First Grantee, a Quare Impedit is brought. The Question was, Whether B. the First Grantee, not Presenting upon the First Avoidance, had lost the benefit of his Grant? In this Case it was Adjudged by the whole Court, That although A. the Grantor grants Donationem & Praesenta • ionem, quandocunque Ecclesia vacare contigerit, pro unica vice tantum; yet B. ought to have taken the first Presentation that happened, and hath not Election to take any turn other than the First, when the Church first became void; and by his neglect in not Presenting then, had lost the benefit of his Grant; and the subsequent words in the Grant are but only an Explanation of the words precedent, and relate to the next Avoidance .

(6.) The Right of Presentation is a Temporal thing, and a Temporal Inheritance, and therefore belongeth to the Kings Temporal Laws to determine, as also to make Laws who shall Present after Six months as well as before, so as the Title of Examination of Ability or Nonability be not thereby taken from the Ordinary. The Law is the same touching Avoidances, for it shall be judged by the Kings Temporal Laws, when and whether the Church may be said to be void or not; the cognizance whereof doth not belong to the Kings Ecclesiastical Laws; and therefore where a Parson is made a Bishop, or accepts another Benefice without License, or Resigneth, or be Deprived: In these cases the Common Law would hold the Church void, albeit there were any Ecclesiastical Law to the contrary : And it is sufficient for the Ordinary's discharge, if the Presentee be able, by whomsoever he be Presented; which Authority is acknowledged on all sides to have been ever inherent in the Ecclesiastical Jurisdiction: But as to the Right of Presentation it self, to determine who ought to Present, and who not, and at what time, and when the Church shall be Judged to become void, and when not, all these appertain to the Kings Temporal Laws. And in case it happen that the King Present not, where of Right he may, in such case the Ordinary may pro tempore depute a fit person to serve the Cure; as in like case he may, where there is a default or neglect in other Patrons to Present, and do not .

(7.) If the Patrons be Joynt-tenants, or Tenants in Common of the Patronage, and they vary or differ in their Presentations, the Ordinary is not in that Case bound to Admir either of their Clerks, nor him that is Presented by the Major part: And if the Six months expire ere they agree, the Ordinary may Present by the Lapse; but within the Six months he may not; for if so, and the Patrons accord, they may bring a Quare Impedit against him as a Disturber, and remove his Clerk. But in case the Patrons have the Patronage by Descent as Coparceners, then is the Ordinary obliged to Admit the Clerk of the Eldest Sister, who hath the precedency by Law in the Presentation, if she so please, after which and at the next Avoidance the next Sister shall Present, and so in order by turn one Sister after another till all the Sisters or their Heirs have Presented, and then the Eldest Sister shall Present again, and this is called a Presenting by Turn, which holdeth always between Coparceners of an Advowson, unless they agree to Present together, or in some other manner by way of Composition, which if so, then the Agreement ought to hold good. Yet here note, That if after the death of the Common Ancestor, the Church happening to be void, the eldest Sister together with another of the Sisters, Presents, and the other Sisters severally and each in her own Name, or jointly and altogether; In this case the Ordinary is not obliged to receive any of their Clerks, but may suffer the Church to run into the Lapse; for there is no obligation on the Ordinary to admit the Clerk of the Eldest Sister, but where she Presents in her own Name only. And in such case of variance or difference among the Patrons touching the Presentation, the Church is not properly said Litigious, obliging the Ordinary at his peril to direct a Writ to inquire de jure Patronatus, which Writ lieth only where Two or more Present under pretence of several Titles, but in this case all the Patrons present under one and the same Title; for which reason the Ordinary may, if he please, suffer it to pass into the Lapse .

(8.) Suppose a Patron presents to a Church void, and before the Admission of the Clerk the Patron dies; after his Executors (before such Admission) Present another Clerk. Q. Whether the Archdeacon ought to receive the Clerk of the Testator, or of the Executors? The Opinion of the whole Court: was, That the Bishop should have Election therein . And in case an Agreement be made by way of Composition between divers claiming one Advowson, and Enrolled, or by Fine, that one shall successively after another Present in such an order certain; and after one hath Presented, he to whom at the next Avoidance the Second Presentation doth belong, is disturbed by any that was party to the said Fine, or by some other in his stead: In such case it is provided, That such so disturbed shall not be put to the Quare Impedit, but their resort to the Roll or Fine shall be sufficient, where if the Concord or Agreement be found, the Sheriff shall be commanded, That he give knowledge to the Disturber, that he show by such a time certain (as fifteen days, or three weeks) if he can allege any thing, wherefore the party that is disturbed, ought not to Present; and if he appear not, or appearing allege nothing sufficient in Bar, he shall recover his Presentation with Dammages .

(9.) In the Case of Evans and Ascough it was the Opinion of Doddridge, That a Bishop hath no more in a Church by Election, than a Parson hath by Presentation. And that if a man Present to a Church, yet any time before Institution he may revoke it, and Present another; and if in that case the Bishop will Institute the First, a Quare Impedit will lie against him . But if the Patron present one, and he be Admitted by the Ordinary, he cannot in that case vary from his Presentation: as was also held by Doddridge in Stoke 's Case against Styles ; where he further said, That it was out of all question at the Common Law, that before Admission by the Ordinary the Lay-Patron may revoke his Presentation; because a Presentation is no other than a Commendation, which may be by word only: And if the Case be, that one hath the Nomination, another the Presentation, the Presentation and Nomination are all one. It was then said by Whitlock, That in the Canon Law it is allowed to a Lay-man to vary, but not to a Spiritual man; but at the Common Law it is all one. Doddridge and Jones seemed to give the Reason thereof, when they said, That it may be intended, that a Lay -man cannot at first so well judge, or is able to discern of the sufficiency of the party Presented, but a Spiritual -man may. Quaere; If after Admission of the Patrons Presentee he doth afterwards again Present another to the Ordinary, and the Ordinary Admit, Institute, and Induct the last Presentee, what Remedy for the first? So if a Spiritual Person change his Presentation by the consent of the Ordinary, what remedy for the First after Induction of the Second ?

(10.) To the same purpose with the premisses is that which is Reported in Stoke 's Case against Sykes; the Case is this, viz. A Lay -Patron, having the next Avoidance of a Church after the death of one Stokes, Father of the Plaintiff, then Incumbent of the said Church, after the Fathers death presented Stokes 's Son, whom the Bishop refused, for that by the Canon Law Filius Patri non potest in Ecclesia succedere. Whereupon the Patron presented Sykes; And now Stokes obtains a Dispensation Non obstante the Canon. Notwithstanding the Ordinary doth Institute Sykes, and causeth him to be Inducted. Whereupon Stokes doth Sue Sykes and the Ordinary in the Delegates; and now Banks prays a Prohibition, and by all the Justices it was granted. And Jones said, That he had known it to be Thrice so granted in the like Case, ( viz. ) in the time of Justice Gawdy, as also in the time of Justice Coke in the Common Pleas, where both Parsons claimed by one Patron: But Doddridge there held, That the Canon before-mentioned doth not hold in this Church; and so said Doddridge was the Opinion of a Learned Civilian: So by the Canon Law a man cannot have that Woman in Marriage, whom he had in Avowry before; yet that Canon doth not hold in our Church. Doddridge said, that the Civilians hold, That a Lay -Patron cannot revoke his Presentation, but he may cumulando variare, and so the Ordinary hath Election to Institute which of them he will; but that a Spiritual Patron cannot vary at all. But he said, that at the Common Law it is out of question, That a Patron before Institution may revoke his Presentation: And if the Patron present one, and the Ordinary admit him, but will not give him Institution, Duplex Quaerela lies against the Ordinary, to enforce him to do his duty: But if both Parsons claim by one Patron, and the one sues a Duplex Quaerela, a Prohibition lies not before Institution. But Jones denied it, and said, That it had been Resolved to the contrary. Doddridge said, That in that case the Induction was pendente Lite And in Calvert 's Case against Kitchen it was said, that they King may revoke his Presentation, and by the same reason may Present another, before his Presentee is Instituted; for proof whereof it was said, That a Common person may recall his Presentation before the Institution, &c. for which was vouched the Book of 31 E. 1. tit. Quare Impedit, 185. the Abbot of Leicesters Case, although that Dyer citing it, 12 Eliz. fo. 292. conceives the Book contrary; but it seems to be in reason that the Law is clear, That a Lay -Patron may change, although that a Spiritual Patron cannot, and the reason is (as aforesaid) because a Lay -person did not know his Sufficiency perhaps at the first; but a Spiritual person by intendment may inform himself thereof well enough, and therefore was vouched 18 H. 7. and 1 H. 8. Kellway 's Reports, which plainly proves that diversity: And by the 19 Eliz. fo. 360. in Coleshil 's Case it is said, That when the King hath Presented, a Repeal by him ought not to be admitted after Institution: And by Dyer 339. in Yatton 's Case, the King may Repeal his Presentation by a new Presentation, without mention made of the former, except that the Second Presentation be obtained by Fraud. Also the King may Present by Paroll, as was said by Sir Ed. Coke in the Lord Windsors Case, and as appears by 17 Eliz. Dyer, as was vouched by Bromley Baron in the foresaid Case of Calvert against Kitchen; where it was said by Altham Baron, That by the Kings death his Presentation determines (understand it, before Institution;) and so it is said in 34 E. 3. 8. tit. Quare Impedit, 11. That a Presentment made by a Bishop becomes null and void by his death. And in 38 Ed. 3. 3. if a Bishop Present and die before, &c. the King shall Present anew .

(11.) Nomination, is a power, that by virtue of a Manor or otherwise a man hath to Nominate or Appoint a Clerk to a Patron of a Benefice, by him to be Presented to the Ordinary for the same; where Note, (1) That it may be in right of a Manor, or otherwise. (2) That the Clerk Nominated ought to be a person fit, able, and worthy. (3) That it may be to a Parsonage, Vicarage, or other Spiritual promotion. (4) That it ought to be to another than the Ordinary, which other shall present him to the Ordinary . And if one hath a Right to have the Nomination of a Clerk to a Benefice, and another Disturbs him, he cannot have a Quare Impedit ipsum Nominare ad Ecclesiam; but the Writ shall be Quod permittat ipsum Praesentare: And the Count shall be, That of Right he ought to Name a Clerk to such as one who ought to Present him to the Bishop, and that a Stranger doth disturb him of his Nomination; and in case he doth Recover, the Judgment shall be Quod Episcopus admittat Clericum ad Nominationem suam .

(12.) If A. B. doth Grant unto J. S. That he shall Name a Clerk to him to the Church of C. when it shall become void, and that A. B. shall present unto the Bishop the Clerk which J. S. shall Nominate to him; in that case the Presentation is in J. S. and he shall have a Quare Impedit, for all the Profit is in him: and the Grant of the Nomination and Presentation is all one. But if A. B. doth Grant unto J. S. That he shall Nominate to him Two Clerks, whereof A. B. shall Present one; in that case the Presentation is not given to J. S. the Grantee, because it is in the Election of A. B. which of the Two shall have the Benefice: And this was the Opinion of the Justices in Smith and Clayton 's Case .

(13.) If A. hath the Nomination to an Advowson, and B. the Presentation, if A. Nominates C. for his Clerk, and B. that should present C. doth present D. for the Clerk; A. that hath the Nomination, shall have a Quare Impedit, and the Writ shall be Quod permittat eum Praesentare, albeit A. had but the Nomination: otherwise he should be without remedy; for in such cases where the party can otherwise have no Right done him, the Law will admit such Writ, albeit the words therein be improper . And if he who had but a Nomination, corruptly agree to make a Presentation, or Nomination, this Nomination shall be forfeited to the King, within the Statute of 31 Eliz. cap. 6. as was said in Calvert 's Case against Kitchen and Parkinson ; and as it is said in Plowden, in Hare, and Bickley 's Case, He who hath the Nomination, hath the effect of the Advowson. Yet (as in the said Case of Calvert ) this diversity seems to be good, That if A. hath the Presentation, and B. the Nomination to a Benefice, and the Presentor upon a Corrupt agreement, make a Presentation unknown to the Nominator, here the Nominator shall not be prejudiced within the Statute of 31 Eliz. cap. 6. .

(14.) In Green 's Case vouched by Atthowe Serjeant in the Case of the King against the Archbishop of Canterbury and one Thomas Prust, upon a Quare Impedit brought by the King, it is said, That if the Bishop Collate before the Six months incur, the Collatee is Incumbent, but the Patron may Present at any time aster, for that fills the Church, but not against the Patron, and hinders that no Lapse may incur to another. In Sir Hen. Gawdy 's Case for the Church of W. the Church there became void, and within fourteen days after the King Presented one to it jure Prerogativae; the Presentee continues possession above thirty years, and then the Manor and the Advowson came to Sir Henry Gawdy; the Church is void, and the King Presents again, and was disturbed by Sir Henry. For that the King brought a Quare Impedit: and Adjudged, That the Presentation of the King within the Six months was not an Usurpation: But if he had Presented in his own right, there should have been an Usurpation. When a Title by Lapse is in the King, if any Present, the King may remove him during his life by Quare Impedit. All this appears by Baskervil 's Case; but if the Incumbent die, the term of the King is gone; and if he Resign not, the King may Present during the life of the Incumbent: And that was a grand inconveniency, that after so long possession in that manner, the Incumbent may be removed by the King, &c. Vid. the Case of the King against the Archbishop of Canterbury and Thomas Prust, Clerk. Trin. 4 Car. Hetley's Reports.

(15.) If an Incumbent Resign, and the Usurper Present within Six months, and is in for Six months, no Notice being given to the Patron of the Resignation; yet that shall bind him, and he shall be put to his Right of Advowson. Otherwise if the Ordinary had Collated; because the Induction is notorious to the Country, and the Patron ought to take notice of it at his peril, to prevent the Usurpation of an Estranger .

(16.) There was a Question upon a Demurrer in Law, If a Lapse devolves to the Ordinary, and within those Six months the Ordinary is Translated to another Bishopric; Whether the King or his Metropolitan shall Present to that Lapse, in default that the Patron does not Present? Noy Attorney, That the Guardian of the Spiritualties shall Present whosoever he be. Vid. Dyer 78. Pl. 103. .

(17.) In a Quare Impedit, It was Resolved and Agreed by all upon Evidence at Bar, That a Resignation to a Proctor, does not make the Church void, until it be Accepted by the Bishop, and acknowledged before him. So that a Presentation in the mean time was void .

(18.) A Parochial Church may be a Donative, and exempt from the Ordinaries Jurisdiction, and the Incumbent may resign to the Patron, and not to the Ordinary; nor may the Ordinary Visit, but the Patron by Commissioners to be appointed by him. Co. Lit. 144. Cite Hill. 1 Jac. B. R. Rot. 601. between Fairchild and Gaier in Trespass for the Parochial Rectory Donative of St. Burien in Cornwall; so Resolved in that Case . But in such case of a Parochial Donative, a mere Lay-man is not capable thereof, but a Clerk in Holy Orders is; for although he comes in by way of a Lay-donation, and not by Admission and Institution, yet his Function is Spiritual. As was Resolved in the said Case of St. Burien . So that a Donative may pass by the Gift of a Lay-Patron, without Institution or Induction .

(19.) In a Quare Impedit the Case was this; A. seized of Two parts of an Advowson, and B. of the Third part: A. presented one who died, afterwards he presented again C, who is deprived 1 Mar. because he is a Favourer of the Religion of E. 6. B. presented D. who after is deprived, and C. restored. The Church void by the death of C. B. presents, and A. brings a Quare Impedit. It was Adjudged that it did not lie: And it was Agreed, That if Two have Title to present by turns, and one presents one who is Admitted and Instituted, and afterwards deprived for Crime; yet he shall not present again; but it shall serve for his Turn, because the Church was full, till a Sentence of Deprivation came: But when the Admission and Institution are merely void, the same shall not serve for a Turn: But in this case, although the Clerk of B. was Incumbent for a time to all purposes, yet when the second Sentence came, C. was Incumbent again by force of the first Presentment, and then when he was dead, B. ought to present at his Turn . In another Quare Impedit the Case was this, viz. The Bishop of Lincoln, Patron and Ordinary Collated to a Benefice in 8 Eliz. The Incumbent took another Benefice without Qualification, by which the first was void: The Successor Bishop 18 Eliz. presented one E. but non constat, whether by Avoidance, Death, or Resignation: E. being in, the Bishop was translated or removed to Winchester: the Bishop that then was, certified that E. did not pay his Tenths, upon which the Church was void, and the Bishop Collated J. S. to the Church. The Question was, Whether the Queen might now avoid the Incumbent, to have her Presentment, which accrued to her upon the avoidance of the first Incumbent, who took a second Benefice without Qualification. The Justices at the first doubted it, but afterwards it was Adjudged for the Queen against the Bishop. Pasch. 30 Eliz. The Queen and the Bishop of Lincolns Case. More' s Rep.

(20.) It is out of the Canon Law, one of Cardinal Otho 's Canons, That Ne succedat in Ecclesia Filius Patri, the Son may not succeed the Father in the same Church; or in case such happen to be so Instituted or Admitted, they are forthwith to be deprived thereof by the said Constitution. Const. Othon. Ne succedat in Ecclesia Filius Patri. This is indeed according to the Canon Law, though with us not practicable; by the same Law also the Son is prohibited to succeed the Father immediately in the same Prebendy, albeit to have another he is not prohibited; but if it be where the number of Prebends be not definite and certain, there he is not at all by that Law prohibited, Extr. de si. Praes. c. dilectus; yea, by that Law the Son may not be a Vicar in that Church, where the Father was Rector last, Extr. ib. ad Extirpandas, &c. Michael. But this might be omitted; for the Question, An Filius possit Beneficiari in Ecclesia Paterna? is with us grown too obsolete to admit a Negative Solution.

(21.) A Presentation may be to a Deanery , to an Hospital , and to a Chapel . And if a Stranger Present to a Donative, and his Clerk be thereupon Instituted and Inducted, yet it is merely void ; for which reason such Institution and Induction upon such a Presentation shall not make that Presentative, which before was Donative. But if he that is the true Patron of a Parochial Rectory Donative, shall Present to the same, and his Clerk be thereupon Admitted and Instituted, that now makes it to become Presentative, and it shall never afterwards become Donative .

(22.) If a Church become void, to which a Bishop hath right to Present in respect of his Temporalties, in this case, if the Bishop happen to die before he hath presented to that Church void, the King shall have the Presentation, and not the Bishops Executors . Also if during the vacancy of the Archbishopric of York, and the Temporalties being in the Kings hands, the Deanery becomes void, the King shall Present to that Deanery, albeit there be a Composition between the Archbishop and the Chapter, that the Chapter shall choose him; for de jure the Patronage thereof belongs to the Archbishop, yet the Composition cannot bind the King, who comes in paramount as Supreme Patron .

(23.) Although it be admitted, that where a Common person Incumbent is Created a Bishop, there the King shall have the Presentation of the Church for that turn by his Prerogative; yet it seems, if the King grant to an Incumbent, before he is Created Bishop, a Dispensation retinere the Church with his Bishopric, and afterwards is Created Bishop and dies Incumbent; it seems the King shall not Present to the Church by his Prerogative, for that the Church is not void by his being made a Bishop, in which case the Prerogative gives the Presentation to the King, but by the death of the Incumbent, in which case the Prerogative doth not take place. Co. Ent. 474. Hele 's Case; there pleaded, that in such case the Church is void by death, and admitted, that it belongs to the Patron to present upon his death .

(24.) If a Church, whereof a Bishop in right of his Bishopric is the Patron, becomes void after the death of the Bishop and before the Seizure of the Temporalties, yet the King shall have the Presentation . And if a Church belonging to the Patronage of a Bishop become void, and the Bishop Present and die before Institution, the King shall have that Presentation by his Prerogative . So if a Bishop die after Institution of the Clerk, and before Induction, the King shall have the Presentation by his Prerogative . Also if Lapse incur to the Ordinary, and before the Six months pass the Ordinary is Translated or dies, it seems the King shall have the Presentation, and not the Ordinary, or his Executors, or the Guardian of the Spiritualties. P. 40 El. B. Dubitatur, Hob. Rep. 208. in case of death. But if a Bishop having right to present to a Prebend, and present his Clerk, who is Instituted and Inducted in the Morning, and Afternoon the same day the Bishop dies, whereby the Temporalties come into the Kings hands, yet the King in that case may not have the Presentation .

(25.) The Patronage of the Deanery of an Archbishopric doth of Common right belong to the Archbishop, and he shall Present to the Avoidance . But by Composition it may be Elective by the Chapter, and yet the Patronage remain in the Archbishop . And where a Parson ought to present to a Vicarage, if the Vicarage become void during the vacancy of the Parsonage, the Patron of the Parsonage shall present .

(26.) An Alien, who is a Minister, may be presented to a Church, and Anciently it was usual for Aliens to have Spiritual promotions here, and Priors Aliens had great possessions in England, and were Parsons Appropriate ; yet by the Statutes of 13 R. 2. & 1 H. 5. French -men are disabled from having Benefices in England, and French -men Denizon'd: Sed Qu. whether they continue of force at this day . And if a mere Lay-man, or a man altogether illiterate, be presented, Instituted, and Inducted, it is not in Construction of the Common Law a mere Nullity, but such are Parsons de facto; but if a Woman be Presented, Instituted and Inducted, it is a mere Nullity at that Law, because her Incapacity is apparent .

(27.) If a man present his Clerk to the Bishop, and he die before he is received, he may present another; and although a man hath presented his Clerk to the Bishop, yet he may present another at any time before the Bishop shall have received such his Clerk .

(28.) If J. S. Present, and his Clerk be Admitted and Instituted; before Induction J. D. cannot Present his Clerk, for the Church was Full before as to a Common person, for by the Institution he had Curam animarum: But where a Common person Presents, and his Clerk be Admitted and Instituted, yet before Induction the King (if he hath Right) may Present, and his Clerk shall be Instituted; for the Church is not Full as against the King before Induction . But if the King hath not right to the Church, in that case the Church is Full by the Admission and Institution of a Common person's Clerk without Induction, as against the King, so as that he may not in that case Present .

(29.) If a Bishop Collate without any good Title of Lapse or otherwise, and then the Patron die after the Six months claps'd, and his Executor bring Quare Impedit by force of the Statute of 4 E. 3. and the Bishop and Incumbent plead Plenarty by Six months, it was Adjudged no Plea on Demurrer, for that the Collation is not any Plenarty, being Tortious . Also if a Bishop Collate without a good Title of Lapse, it puts not the Patron out of possession; but he may Present afterwards, albeit the Bishop's Clerk were Instituted and Inducted .

(30.) A Common person may Present to a Church per Parol; and if it be by Writing, yet it is not any Deed, but only in nature of a Letter to the Bishop . Also the King may Present either by his Letters , or per Parol without Writing . But if the King be deceived in his Title, it will be a void Presentation . And if the King grant a Presentation by his Letters by the words [ damus Concedimus ] without other words of Presentation, yet it seems it shall amount to a Presentation, and be a sufficient Warrant for the Bishop to Institute him. Dubitatur 19 E. 3. Quare Impedit, 60. A Common person by his Letter or his Word may make a Presentation to a Benefice to the Bishop; the King may Present by Word, if the Ordinary be present; if the King under any Seal present, it is good: And Mich. 10 Jac. it was held by the whole Court, that a Presentment under the Great Seal, to a Church parcel of the Duchy of Lancaster is good, and needed not to be under the Duchy-Seal . Where a man accepts a Second Benefice with Cure, without a Dispensation or Qualification, the First Benefice is void, and the Patron may Present; but if he doth not Present, then if it is under value, no Lapse shall incur until there is a Deprivation and Notice: But if it be above value, then the Patron must Present within Six months. .

The King seized of an Advowson in the Right of his Duchy of Lancaster, Presented to it under the Great Seal, and not under the Seal of the Duchy. And Resolved, That the Presentation was good, for the Presentation is but a Fruit fallen from the Tree, and the King may Present by word, because a Presentation is but a Commendation of the Clerk to the Ordinary .

A man seized of an Advowson in Fee granted to another and his Heirs, that when the Church should become void, that the Grantee and his Heirs should Nominate a Clerk to the Grantor and his Heirs, and he and his Heirs should Present him to the Ordinary. Resolved, That if he who hath the Nomination Present, he which ought to Present shall have a Quare Impedit against him, and e contra.

In Beverley and Cornwell 's Case it was Resolved, That if any Advowson comes to the Queen for Forfeiture by Outlawry, and the Church becomes void, and the Queen Presents, and then the Outlawry is reversed for Error, yet the Queen shall enjoy the Presentment, because it came to the Queen as a profit of the Advowson; but if the Church be void at the time of the Outlawry, and the Presentment be forfeited as a Chattel principal and distinct, and then the Outlawry is reversed, the party shall have Restitution of the Presentment.

(31.) If the King dies before his Clerks Admission and Institution, it is a Revocation in Law of his Presentation . Or if the King Present one to a Benefice, and then Present another to the same without Revoking the former, or making any mention thereof; yet this also is a Revocation in Law of that former , unless the Second were by fraud or surreptitiously obtained. Likewise, if the Kings Presentee dies after Institution, and before Induction, that also is a Revocation in Law, because the King had not the effect of his Presentation, and so shall Present again . Or if the King Present, and then before Institution revoke the same, but before Notice thereof to the Ordinary, the Ordinary Institute and Induct him; yet it seems that Presentation is well Revok'd in Law, and the Notice thereof to the Ordinary is not material as to the substance of the Revocation, but only to discharge him from being a Disturber. D. 12. El. 292. adjudged. Dyer makes a Quaere thereof. Dubitatur D. 16 El. 328. Vid. 25 E. 3. 47. & Rol. Abr. ubi supr. lit. U.

(32.) If the Patron, who Presents his Clerk, be Excommunicated, it is a good cause of Refusal of the said Clerk ; it is also said to be so hold in the Books of the Common Law . And where there are Three Joyntenants of the same Advowson, or of the next Avoidance, and only one or two of them Present, the Bishop is no Disturber if he refuse the Clerk so Presented; for he is not bound to Admit the Clerk, unless all the Joyntenants join in the Presentation . But where there are Three Grantees of the next Avoidance, and the Church become void, and Two of them Present the Third being a Clerk, the Ordinary in that case is to Admit him, for that he cannot join in a Presentation of himself, and he may relinquish his Title, and accept the Presentment of the others .

(33.) A. the Defendant had been Parson for Three years, and pleaded Plenarty generally by Six months of the Presentation of one Styles, a Stranger to the Writ: and the Court held the Plea to be naught, because the Defendant shown no Title in Styles .

(34.) In the Case between Phipps and Hayter Prohibition was granted for the Church of T. the Suit being in the Arcbes after Induction to avoid the Institution, for that the Institution was made after a Caveat entered, Not to grant Institution, &c. for that doth not make the Institution void at the Common Law .

(35.) In a Quare Impedit; A. and B. severally Patrons of the Moity of the Church of S. in Fee to Present by Turns; A. Presents his Clerk, who is Admitted and Inducted. The Church is void again, B. Presents his Clerk, who is likewise Inducted, and after is deprived. The Bishop Collates without giving notice of the Deprivation. A. grants his Advowson to J. S. in Fee; the Clerk Collated by the Bishop died: B. Presenteth, and is disturbed. Resolved, (1) When A. had right to Present upon the Deprivation, as in his Turn (although the Collation of the Bishop was not good) yet it was but a thing in Action; and when he had granted the Advowson over, the Grantee could not have this thing in Action, nor the Grantor could not have it, for he had destroyed it, and so none could have it. (2) Resolved, although the Grant was sufficient to pass the Advowson in Fee, yet the Collation of the Bishop was good against all, but against the very Patron, so as he might have removed the Incumbent by a Quare Impedit; but when he doth not remove him, so as he dies Incumbent; this is as a serving of his Turn, and a good Plenarty and Incumbency against him .

(36.) In a Quare Impedit the Defendant pleaded, That the Divine Service there was in the Welsh Tongue, and the Parishioners understood not the English; and the Presentee could not speak Welsh, and therefore he refused him: It was the Opinion of all the Justices, That it was a good cause of Refusal of him, for he cannot instruct his Flock according to his duty and charge. . But in this Case it was held, That Notice ought to be given to the Patron himself, if he be within the County, if not, public Intimation to be on the Church-door.

(37.) In a Quare Impedit brought in a Case between La. and Le. it was held, That the King cannot be a Disturber; but the Bishop may be a special Disturber; and in that case it was said, It is good policy upon every Presentation by Usurpation, to bring a Quare Impedit as speedily as may be; and it is as good policy to name the Bishop in the Writ, for then he shall not Collate for Lapse, if the Church remain void Six months; nor shall the Metropolitan Collate, if the time come to him, for the same Lapse: For it was said to be a Rule, That the Metropolitan shall never Collate for Lapse, but when the immediate Ordinary might have Collated, and hath surceased his time: and in such case the Ordinary cannot Collate, because he is made party to the Writ.

(38.) In a Case between Benet and the Bishop of Norwich it was Adjudged, That if the next Avoidance of a Church be granted to A. and B. and A. Release to B. and after the Church become void; in that case B. may Present, and upon Disturbance have a Quare Impedit in his own Name.

(39.) If the Bishop shall for Insufficiency refuse the Clerk that is Presented to him, he may not afterwards Admit him: and therefore where the Patron Presented J. S. his Clerk to the Bishop, and upon Notice by the Bishop given to the Patron of the Insufficiency of the Clerk, the Patron Presented another Clerk, and then the Bishop Admits the first Clerk which was Presented within Six months: In this case it was Adjudged, That the Bishop was a Disturber for having once refused him for Insufficiency, he cannot afterwards accept of him.

CHAP. XXIV.

Of Examination, Admission, Institution, and Induction.

• 1. What is here meant by Examination, where enjoined, how, and by whom, and at what times to be performed.
• 2. In what case the Bishop is held at Common Law a Disturber, in refusing one Clerk and Admitting another.
• 3. The Ordinary, as he is not obliged to Examine the Clerk at some certain times; so he may not refuse to examine him during all the Six months.
• 4. Although the Six months be Elaps'd, yet if the Patron Present, the Church not being Full, the Bishop ought to Admit his Clerk.
• 5. How an Usurpation upon a Lease for years puts the very Patron out of possession.
• 6. Admission what; and under what qualifications it ought to be.
• 7. What the Remedy, where the Ordinary doth refuse to Admit the Clerk; the Form of such Admission.
• 8. What Institution is, and the Form thereof according to the Canon Law; what required of the Clerk in order thereto, and his Remedy in case the Ordinary denies him such Institution as he may claim by Law.
• 9. Matters of Institution properly cognizable in the Ecclesiastical Courts, yet in certain Cases not exclusively to the Common Law or Temporal Jurisdiction.
• 10. Institution gives the Parson jus ad rem, not jus in re.
• 11. Whether Institution without Induction works a Plena • ty? also whether it be good, being Sealed with another Seal, and done out of the proper Diocese? The difference between the Common Law and the Canon Law as to a Coveat entered before Institution.
• 12. Whether Suit may be in the Ecclesiastical Court to remove an Incumbent after Induction?
• 13. Whether the First-Fruits be due upon the Institution before Induction?
• 14. A Case at Common Law touching Resignation; and whether it may be made Conditionally?
• 15. A Case touching the Rightful Patron's Presentation, after the Induction of another by Usurpation.
• 16. What Induction is, and the Bishop's Order therein.
• 17. Induction is a Temporal, not Spiritual Act: In what manner it is to be executed.
• 18. A Caveat entered in the Life-time of an Incumbent is void.
• 19. In what Case an Induction made by a Minister not resident within the Archdeaconry, may be good.
• 20. Institution to a Minor and Under-age is merely void.
• 21. Whether after Induction, the Institution may be questioned in the Ecclesiastical Court.
• 22. Whether Incumbency be triable only at Common Law.
• 23. In what Court the validity of Induction is determinable.

(1.) EXamination is that Trial or Probation, which the Bishop or Ordinary makes before his Admission of any person to holy Order or to a Benefice, touching the qualification of such persons for the same respectively. So that there are Two certain times or seasons especially, wherein this Examination is required; the one before an Admission to Holy Orders, the other before an Admission to a Benefice. The former of these is expressly enjoined by the 35th Canon Ecclesiastical, whereby it is required, That the Bishop, before he Admit any person to Holy Orders, shall diligently Examine him in the presence of those Ministers that shall assist him at the Imposition of hands, or in case of any lawful Impediment of the Bishop, then the said Examination shall be carefully performed by the said Ministers, provided they be of the Bishops Cathedral Church, if conveniently it may, otherwise by at least Three sufficient Preachers of the same Diocese. And in case any Bishop or Suffragan shall Admit any to Sacred Orders, who is not Examined as is before ordained, then shall the Archbishop of the Province, having notice thereof, and being assisted with one Bishop, suspend the said Bishop or Suffragan from making either Deacons or Priests for the space of Two years . So also when the Clerk is Presented by the Patron of the Advowson, before he be Admitted as Clerk to serve the Cure, the Ordinary is to Examine him of his Ability: For if upon his Examination he be found unable to serve the same, or be Criminous, the Ordinary may refuse to Admit and Institute him into the Benefice . By the Ancient Cannons the Bishop hath Two months time to inquire and inform himself of the sufficiency and quality of every Clerk Presented to him, as appears by the Canon in 1 Jac. cap. 95. But by the said Canon it is Ordained, That the said Two months shall be abridged to 28 days only . Upon sufficient enquiry and Examination the Ordinary may accept or refuse the Clerk Presented, and regularly all such matters as are causes of Deprivation, are also causes of Refusal ; but for a Presentce to have another Benefice, is no cause of Refusal, for that is at his own peril; and possibly the Second Benefice is more worth than the former, which only is void in such case .

(2.) If the Bishop doth demand of the Clerk his Letters of Orders, and Letters Testimonial of his good behavior, and the Clerk requires time to show them, as the space of a week or the like, because he hath them not there with him; and the Bishop doth thereupon Refuse him to the Church, and Presents another: the Bishop in such case hath been adjudged to be a Disturber; for the Statute of 13 Eliz. doth not compel the Clerk to show his Orders, nor Letters Testimonial of his good Behaviour: And so it was Adjudged . Yet by the 39th Canon it is by way of Caution expressly Ordained, That no Bishop shall Institute any of a Benefice, who hath been Ordained by any other Bishop, except he first show unto him his Letters of Orders, and bring him a sufficient Testimony of his former good life and behavior, if the Bishop shall require it.

(3.) Examination of the Clerk is to be done at a convenient time within the Six months; for the Ordinary cannot refuse to Examine the Clerk during all the Six months, and so suffer a Lapse to incur to himself; for by so doing the Patron should lose his Presentation, and the Ordinary take advantage of his own wrong. But if the Ordinary, when the Clerk comes to be examined, Sedet circa curam Pastoralem, he is not then obliged to leave the business in hand, and presently Examine the Clerk; but he may appoint a convenient time and place for the Examining of him . This Examination by the Diocesan, touching the Conversation and Ability of such as were ordained to Peach the Word of God, or Presented to a Benefice, is enjoined by the Provincial Constitutions. Lindw. de Haereticis, cap. 1.

(4.) A Quare Impedit was brought by B. against the Bishop of Rochester, who pleads, that he claims nothing but as Ordinary; and yet pleads further, That the Clerk which the Plaintiff Presented, had before contracted with the Plaintiff Simmiacally, and therefore because he was Simoniacus he refused, and that the Church was then void, and so remained void; whereupon the Plaintiff had a Writ to the Archbishop of Canterbury, who returned that before the coming of this Writ, viz. 4. July the Church was Full of one Dr. Grant, ex Collatione of the said Bishop of Rochester, who had Collated by Lapse, and this Return was adjudged Insufficient: First, it is clear, That though the Six months pass, yet if the Patron Present, the Bishop ought to Admit, although it be after the Title devolved unto the Metropolitan: And it seems also Reason, that he ought to Admit, though that the Title by Lapse be accrued to the King, for he claims it as Supreme Ordinary. Vid. Dyer 277. quaere. But in this Case the Bishop who is the Defendant is bound by the Judgment, and the Writ is, notwithstanding the claim of the Bishop, that he Admit the Clerk; for the Bishop ought to execute the Process of the Court. It was urged by Serjeant Henden, that there is a Canon in Lindwood, That if the Church be vacant when the Writ comes to the Bishop, that he is bound to execute the Writ; but if it be Full, then he certifies the Justices: And the Archbishop is Sworn to the Canons, and he vouched 22 H. 6. 45. Coke, lib. 6. 49, and 52. Dyer 260. F. N. B. 47. Dyer 364. 14 H. 7. 22. 34 H. 6. 41. 9 E. 3. Quare non admisit. 18. E. 4. 7. .

(5.) In Rud 's Case against the Bishop of Lincoln, it was among other things Resolved by the Court, in a Quare Impedit, That when one usurps upon a Lease for years, that this Usurpation gains the Fee, and puts the very Patron out of possession; and though by the Statute of Westm. 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void, or may Present and if he Present, and his Clerk be Admitted and Inducted, that then he is Remitted; yet until it be recovered, or his Clerk be in, the Usurper hath the Fee, and against him lies the Writ of Right, &c. Also that the Patron, which hath recovered in a Quare Impedit, may Present, and that being accepted, and Institution and Induction ensuing thereupon, it is good .

(6.) Admission is when the Bishop upon Examination of the Clerk Admits him to be able and sufficient, saying, Admitto te habilem The Lord Coke in the Fourth Part of his Institutes says, That upon consideration had of the several Statutes (whereof mention is there made,) If an Alien or Stranger born be Presented to a Benefice, the Bishop ought not to Admit him, but may lawfully refuse him . There are several things which the Statute-Law of this Realm doth require in him, which shall be Admitted to a Benefice; for no person may be Admitted to any Benefice with Cure, except he then be of the Age of 23 years at least, and a Deacon, and shall first have subscribed the 39 Articles in the presence of the Ordinary, and publicly read the same in the Parish-Church of that Benefice, with Declaration of his unfeigned Assent thereunto; and except he be Admitted to Minister the Sacraments within one year next after his Induction (if he were not so Admitted before) he shall upon every such default be ipso facto deprived. And none shall be made a Minister, or Admitted to Preach or Administer the Sacraments under the Age of 24 years, and unless he bring with him to the Bishop a sufficient Testimonial, and be able to render an Account of his Faith in Latin. All which appears by the Statute of the 13th of Eliz. whereby it is likewise Provided, That none shall be Admitted to any Benefice with Cure, of or above the yearly value of Thirty pounds in the King's Books, unless he shall then be a Bachelor of Divinity, or a Preacher lawfully allowed by some Bishop within this Realm, or by one of the Universities of Oxford or Cambridge; and that all Admissions to Benefices, Institutions, Inductions, Tolerations, Dispensations, Qualifications, and Licenses whatsoever, made contrary to the Premises, shall be utterly void in Law . And by the Three and thirtieth Canon of the Ecclesiastical Constitutions, Ratified and Confirmed by King James under his Letters Patents, An. 1603. it is in Conformity to many Decrees of the Ancient Fathers, further Ordained, That no person shall be Admitted into Sacred Orders, except he shall at the same time Exhibit to the Bishop a Presentation of himself to some Ecclesiastical Preferment then void in that Diocese; or bring to the said Bishop a True and undoubted Certificate, that either he is provided with some Church within the Diocese, where he may attend the Cure of Souls, or of some Ministers place vacant, either in the Cathedral of that Diocese, or in some other Collegiate Church therein also scituate, where he may exercise his Ministry: Or that he is a Fellow, or in right as a Fellow, or to be a Chaplain in some College in Oxford or Cambridge: except he be a Master of Arts of Five years standing, that liveth of his own charge in either of the Universities: or except by the Bishop himself that doth Ordain him Minister, to be shortly after to be Admitted either to some Benefice or Curateship then void. And in case any Bishop shall Admit any person into the Ministry, not qualified as aforesaid, he is to keep and maintain him, till he prefers him to some Ecclesiastical Living, on pain of Suspension for one year from giving or Orders, by the Archbishop assisted with another Bishop .

(7.) If a Bishop shall refuse to Admit the Clerk, the Writ of Quare non Admisit may lie in the Case ; yet the Ordinary, before he Admits the Clerk Presented, may take a reasonable time to examine him; and if upon Examination there be just cause of Exception in respect of the Clerk Presented, or otherwise in respect of the Patron Presenting, he may justify the non- Admission of him, for this Admission is no other than the Ordinary's Allowance of a Clerk Presented to a Church that is void. But if the Bishop refuse to Admit the Clerk Presented to him by the Patron, as scrupling the said Patron's Right of Presentation, and the said Patron after recover his Right of Presentation against the Bishop in the Common Bench, he shall then have the Writ of Admittendo Clerico . Hobart Chief Justice, in the case of Colt and Glover against the Bishop of Coventry and Lichfield, compares this Admission and such Acts of the Ordinary to the Admittance of a Copyholder upon Surrender, specially where the Admission of one be upon the Resignation of another Incumbent: And he is there of opinion, That if a Parson Appropriate (which is Patron) Present, and his Clerk be not Admitted, but refused for just cause and Notice given, the Lapse shall incur . The usual Form or Tenor of an Admission into a Rectory or Parsonage runs in this manner, viz. 〈◊〉 A. B. by virtue of this Instrument from John Lord Bishop of L. in his Triennial Visitation, To all Clerks, Rectors, Vicars, Ministers, Chaplains, and Curates whatsoever within this Diocese directed, do Admit F. G. into real, actual, and corporal possession of this Church of R. together with all the profits, dues, members and appurtenances whatsoever thereunto belonging, In the presence of those whose Names are under-written.

(8.) Institution according to the Canon Law, is no other than a Verbal Collation to a Benefice or some other Ecclesiastical Living, De Instit. lib. 4. Decretal, & Sexti. and is by that Law taken for an Investure, c. ad haec, de Offic. Archid. c. cum venisset. dic. tit. de Inst. For when among the Romans a Clerk was Instituted, the Custom was, that by a Verbal Collation the Clerk was invested in the Benefice by the delivery to him of a Ring, Staff, Cap, Pen, or the like, in the nature of Livery and Seisin, in token of his possession of the thing to which he was so Instituted: c. cum olim, de re Judic. cap. ex ore, de iis quae si à Praelat. & cap. ut nostrum, de Office. Archidiac. Somewhat in resemblance to our Tenants by the Verge, or such as are Admitted by the Rod in a Court of ancient Demesn. But this Institution, as practicable with us, consists in the Letters of Institution directed from the Bishop or Ordinary, in whose Diocese the Church is, to the Clerk the Presentee, by which he Admits him as lawful Incumbent to that vacant Church whereto he is Presented by the Patron thereof; the said Clerk having not only first taken the Oaths of Allegeance and Supremacy, with Renunciation of all Foreign Powers and Jurisdictions, according to the Laws and Statutes in that behalf provided, but also of Canonical Obedience to the Bishop of that Diocese and his Successors, and that he hath made no Simoniacal Contract, for or concerning the said Presentation; whereupon the said Bishop or Ordinary doth by his said Letters of Institution constitute and invest the said Clerk Rector of the Rectory of the said Parochial Church, cum cura animarum Parochianorum, together with all Rights, Privileges, and Emoluments belonging to the same, Juribus & Consuetudinib • s Nostris Estiscopalibus, & Ecclesiae nostrae Cath, &c. Dignitate & honor in omnibus semper salvis. Dioecesis idem significat in effectu quoad Jurisdictionem Ecclesiasticam, quod Territorium quoad Jurisdictionem Temporalem. Ita Andrae, & DD. in c. cum Episcopus, de Offic. Ord. lib. 6. Dioecesis significat locum Spiritualem, sicuti Territorium locum Temporalem. Alberic. in suo Dict. ver. Dioecesis. This Institution to a Benefice may not, by the 39th Article of the Canons, be to any person preordained, except he first show the Bishop his Letters of Orders, as also (if he require it) a Testimonial of his former good life and behavior. Moreover, by the Law he is obliged to subscribe the Articles of Religion, to Swear Canonical Obedience to the Archbishop of Canterbury and his Successors, and to his Diocesan; and for his Personal Residence, if it be a Vicarage. Juram entum de Canonica Obedientia, viz. Ego A. B. juro, quod praestabo veram & Canonicam Obedientiam Episcopo Londinensi ejusque Successoribus, in omnibus licitis & honestis. Sic me Deus adjuvet. If a Clerk should kill his Prelate, to whom he hath Sworn Canonical Obedience, it is Pety Treason. Vid. 19 H. 6. 47. b. vid. Stat. 25 E. 3. De Prodic. cap. 2. But if the Diocesan, notwithstanding the exhibiting the Presentation before him, or his Vicar General, having power to Institute, and notwithstanding Requisition made him by the Clerk Presented in order to Institution, shall refuse to Institute and Admit him, he may thereof enter his Complaint before the Dean of the Arches, who thereupon sends his Letters to the said Bishops, which Letters or Rescript is termed Duplex Querela: So that as to the substance of the Premises touching this Subject, the practice with us at this day doth well nigh correspond with the Ancient Canon Law, whereby it is expressly Ordained, lib. 3. Decretal. That all Ecclesiastical Livings and Benefices shall be had by Institution, to be by the Bishop or his Chancellor, or such other as hath Episcopal Jurisdiction, positively declaring, That without such Institution neither any Benefice is lawfully obtained, nor can be lawfully retained: Adding withal, That Benefices void ought to be granted within Six months after knowledge of the Voidance thereof, otherwise the Grant thereof devolves and comes to the Superior; and that he who doth cause or procure himself to be Instituted into a Benefice, the Incumbent thereof being alive, shall be deposed from his Orders. Decretal. ibid.

(9.) Albeit the Cognisance of this matter of Institutions is so properly and connaturally inherent in the Ecclesiastical Jurisdiction, yet the Temporal and Common Law it seems hath in some cases took notice thereof▪ for it is there Reported, That every Rectory doth consist upon Spiritualty and Temporalty: As to the Spiritualty, viz. Cura animarum, the Presentee is complete Parson by Institution; for when the Bishop upon Examination finds him able, then he doth Institute him in these words, viz. Instituo te ad tale Beneficium & habere Curam animarum, of such a Parish, Accipe Curam tuam & meam . And the very Institution to a Benefice the Law understands as an Acceptance and the having of a Benefice; as in that Case of Digby; where it is held, That if a Clerk be Presented, Admitted, and Instituted to a Benefice with Cure, to the value of 8 l. and afterwards and before Induction he accepts of another Benefice with Cure, and is Inducted in the same; the First Benefice is void by the Statute of 21 H. 8. For the words of the Statute are, A Parson, having one Benefice with Cure, &c. Accept and take another, &c. And he who is Instituted to a Benefice, is said to have Accepted a Benefice, and to have a Benefice . And he that is Instituted, may enter into the Glebe-Lands before his Induction, and hath Right to have it against any Stranger whatever . And albeit by the Civil and Canon Law an Institution granted after a Caveat Entered is void, yet by the Common Law it is otherwise ,

(10.) By the Institution the Parson hath only Jus ad rem, he hath not Jus in re until he hath Induction; and therefore if a Prebendary, Parson, or Vicar, after he is Admitted and Instituted, and before he be Inducted, grant an Annuity out of his Prebend, Parsonage, or Vicarage, and the same be Confirmed by the Patron and Ordinary, or by the Dean and Chapter, yet this shall not charge the Glebe, or the Successor of the Prebendary, Parson or Vicar; for although by his Institution he hath (as aforesaid) Jus ad rem, yet he hath not Jus in re, but the charge in such case shall lie upon the person of the Prebendary, Parson, or Vicar, and not upon the Lands .

(11.) The Church at this day, since the Statute of Westm. 2. is not Full by Institution of the King; and therefore if the King hath a Title by Lapse to Present pro hac vice, and he Presents, and his Clerk be Instituted, but dies before Induction, the King in that case may Present again; and so it hath been Adjudged . Which plainly shows, that Institution without Induction doth not work a Plenarty. It hath also been held, That the Letters of Institution Sealed with another Seal, and made out of the Diocese, is good Dyer, 348. Weston 's Case. acc. enough . Of if a Caveat be Entered with a Bishop, and he after grant Institution, yet the Institution is not void by the Common Law; otherwise by the Spiritual Law . Notwithstanding what was just now said, it is Adjudged in Digbie 's Case, That a Benefice is taken, received, and had by Institution only; and therefore a Qualification or Dispensation following comes too late . So that if a man having one Benefice with Cure by Institution only, accept another by Institution only, without Dispensation, the Common Law makes Avoidance Actual, if the Patron will .

(12.) Proceedings being in the Ecclesiastical Court to remove an Incumbent after Induction, a Prohibition was granted to stay the same: One Oliver sued a Quare Impedit against Hussey, and while that depended, Hussey was Instituted and Inducted, and Oliver sued Hussey in the Spiritual Court to remove him. Noy prayed a Prohibition, First because he may not sue in Two Courts for the same cause: Secondly, because it is a Suit after Induction; and upon that last point the Court granted a Prohibition .

(13.) In the Case of Dennys against Drake it was said, That if a man be Instituted to a Benefice, he ought to pay the First-Fruits before Induction by the Statute: But by the Common Law it was otherwise; for he is not to have the Temporalties until Induction, and therefore he could not pay the First-Fruits; but another person cannot be Presented to his Benefice during the continuance of the First Institution. And an Institution to a Second Benefice is a present Avoidance of the First

(14.) G. Parson of the Church of E. did by Instrument in Writing Resign his Benefice before a Notary Public, and others, into the hands of the Bishop; and the Resignation was absolute and voluntary, and to the use of M. and B. or either of them. And it was further in • erted in the said Instrument of Resignation, Protestatione & sub Conditione, quod si aliqui eorum non Admissi fuerant per assentum Episcop. infra Sex menses, quod tunc haec praesens Resignatio mea vacua & pro nulla habeatur, & nunc prout tunc, & tunc prout nunc; and Cestuy que use came within the time limited to the Bishop, and did offer to Resign to him, which the Bishop refused to accept, &c. Crooke for the Plaintiff: Forasmuch as the Plaintiff may Resign on Condition as well, as a particular Tenant may Surrender upon Condition: And Two Parsons may Exchange, and if the Estate be Executed on the one part, and not on the other, that Parson whose part was not Executed, may have his Benefice again, as it is Adjudged in the 46 E. 3. But Coke Sollic. and Godfrey were on the contrary Opinion: For that the Incumbent may not Transfer his Benefice to another without Presentation, as appears in the recited Case of 46 E. 3. Also the Resignation is not good, and the Condition void, because it is against the nature of a Resignation, which must be Absolute, Sponte, pure, & Simpliciter, and is not like to a Condition in Law, as in the said Case of Exchange of 46 E. 3. for the Law doth annex a Condition to it, but a collateral Condition cannot be annexed by the parties themselves: Also this is an act Judicial, to which a Condition cannot be annexed, no more than an Ordinary may Admit upon Condition, or a Judgment be confessed on Condition, which are Judicial Acts. But admitting the Condition to be good, yet a new Induction ought to be made by the Ordinary, for the Church became one time void, and is not like to the Case in 2 R. 2. Quare Impedit, 143. Where Sentence of Deprivation was given, and the Sentence presently reversed by Appeal, there needs no new Institution, for that the Church was never void. And upon Arguments given in Writing by the Civilians to the Judges, the Judgment was entered, Quod querens nihil capiat per Billam .

(15.) In Rud 's Case against the Bishop of Lincoln, it was ( inter alia ) Resolved by the Court, That when one having a good Title to Present, and an Incumbent by Usurpation is Admitted, Instituted, and Inducted, and after that the Patron Presents, and the Bishop refuse, and after the Patron recover, and then he which had this Presentation, exhibits it to the Bishop; this is now a good Presentation; and the Patron cannot revoke or give him a new Presentation: But if the Patron before the death of the Incumbent make Letters of Presentation, that is void, because he had no Title to Present .

(16.) Induction is nothing else but the putting of the Parson into Actual possession of the Church and Glebe, which are the Temporalties of the Church; or the making of a Clerk complete Incumbent of a Church: This is Induction , and it is by Letters from the Bishop of the Diocese directed to all and singular the Clerks, Rectors, Vicars, &c. within the said Diocese, to put the Clerk or his lawful Attorney for him, and in his name into the Actual possession of the Church to which he had been Presented and Instituted, together with all the profits, dues, members, and appurtenances whatsoever thereunto belongings or appertaining; of the due execution whereof a Certificate endorsed on the Instrument of Induction, and Subscrib'd by a competent number of Witnesses ought to be returned to the said Bishop or Ordinary; who may appoint the Archdeacon to give Induction , yet by Prescription it seems the Dean and Chapter of Paul's, as also the Dean and Chapter of Lichfield may give Induction . It is also said, That an Induction made by a Bishop is void, where it belongs to a Dean and Chapter by Prescription : But an Induction by the Patron is void ; yet the King's Grantee of a Free-Chapel shall be put into possession by the Sheriff of the County, and not by the Ordinary of the place .

(17.) This Induction is not a Spiritual, but a Temporal Act; and therefore if after the Clerk hath been Presented by the Patron, and Admitted and Instituted by the Bishop, the Archdeacon shall refuse to Induct him into the Benefice, an Action upon the Case lieth for the Clerk against the Archdeacon . And after the Incumbent is thus Inducted, he may then plead any Plea in Bar of a Quare Impedit brought against him which concerneth his Possession; and so may plead a Release in Bar, because he hath the Freehold in him, which shall not be lost without his Answer : For by this Induction or being led into the Church he hath, as it were, Livery and Seisin thereof given him as the lawful Incumbent by delivery of the Keys of the Church to him, and that by order of the Bishop; whereof Publication is then made to the Parishioners by ringing one or more the Bells : And albeit a Parson hath his Presentation, Admission, and Institution, and that upon a lawful Title, yet he is not a possessor of the Parsonage according to the Letter of the Law till his Induction . Which Induction is (as aforesaid) a Temporal Act, and (as the Opinion of the Court was in Hutton 's Case) Triable by Temporal Law; and since by Induction the Church is Full, it is not to be avoided, but by a Suit of Quare Impedit or the like, at the Common Law, and not to be undermined by alleging Insufficiency in the Institution in the Court Ecclesiastical, for that may come in question upon the Trial of the Induction at the Common Law, which will not be good, if the Institution were not good: All which was also the Opinion of the Court in the Case aforesaid ; for if the Question be, whether Parson or no Parson, which comprehends Induction, it is Triable at the Common Law . And although by the Institution the Church if Full against all persons save the King, yet he is not complete Parson till Induction; for though he be admitted ad Officium by the Institution, yet he is not entitled ad Beneficium till Induction .

(18.) In an Ejectione Firmae brought by the Lessee of Rone, Incumbent of the Church of D. it was found by Special Verdict, that the King was the true Patron, and that Wingfield entered a Coveat, in vita Incumbentis, he then lying in Extremis, scil. Caveat Episcopus ne quis admittatur, &c. nisi Convocatus the said Wingfield; the Incumbent dies; Naunton a Stranger Presents one Morgan, who is Admitted and Instituted; afterwards the said Wingfield Presents one Glover, who is Instituted and Inducted, and afterwards the said Rone procures a Presentation from the King, who was Instituted and Inducted: And then it came in • question in the Ecclesiastical Court, who had the best Right; and there Sentence was given, That the First Institution was Irrita, Vacua, & Inanis, by reason of the Caveat, and then the Church being Full of the Second Incumbent, the King was put out of possession, and so his Presentation void: But it was Adjudged and Resolved by all the Court for Rone: For (1) it was Resolved, That this Caveat was void, because it was in the life of the Incumbent. According to the Common Law, if a Caveat be entered with the Bishop, and he grant Institution afterwards, yet it is not void: After a Caveat entered, Institution is not void by the Common Law. Pasch. 13 Jac. B. R. Hitching verse. Glover. Rol. Rep. & Cro. par. 2. (2.) The Church upon the Institution of Morgan was Full against all but the King, and so Agreed many times in the Books, and then the Presentation of Glover was void by reason of the Super-institution, and therefore no obstacle in the way to hinder the Presentation of Rone, and therefore Rone had good Right: And if the Second Institution be void, the Sentence cannot make it good; for the Ecclesiastical Court ought to take notice of the Common Law, which saith, That Ecclesia est plena & consulta upon the Institution, and the person hath thereby Curam animarum. And as Doddridge Justice said, He hath by it Officium, but Beneficium comes by the Induction: And although by the Ecclesiastical Law the Institution may be disannul'd by Sentence, yet as Lindwood saith, Aliter est in Angl. And Doddridge put a Case out of Dr. & Student. lib. 2. If a man Devise a Sum of Money to be paid to J. S. when he comes to Full age, and he after sue for it in the Spiritual Court, they ought to take notice of the Time of Full age, as it is used by the Common Law, viz. 21. and not of the time of Full age as it is in the Civil Law, viz. 25. So in this case; for when these Two Laws meet together, the Common Law ought to be preferred: And when the Parson hath Institution, the Archdeacon ought to give him Induction. Vid. Dyer 293. Bedingfield 's Case, cited by Haughton to accord with this Case .

(19.) By the Court, That if an Archdeacon make a general Mandate for the Induction of a Parson, viz. Univers. personis Vicariis Clericis & Literatis infra Archidiaconat. meum ubicunque Constitut. That if a Minister or a Preacher who is not resident within the Archdeaconry, makes the Induction, yet it is good. And the Opinion of four Doctors of the Civil Law was shewn in the Court accordingly, upon a Special Verdict .

(21.) In the Case of Strange against Foot, the sole Point upon the Special Verdict was, If one Prideoux being Admitted and Instituted to a Prebendary, with the Cure, 4 Eliz. be being but Nine years of age; notwithstanding the Statute it is merely void. Note 4 H. 6. 3. That if a Feme who is an Infant under 14 years hath issue, it is a Bastard .

(21.) It is said at the Common Law, that after Induction, the Admission and Institution ought not to be drawn into question in the Ecclesiastical Court ; for they say, That after Induction the Ecclesiastical Law may not call into question the Institution: That by Institution the Church is full against Common persons, but not against the King; and that by Induction the King may be put out of possession . And in the Case between Rowrth and the Bishop of Chester, it was Resolved, That after an Induction, an Institution is not to be examined in the Ecclesiastical Court, but by a Quare Impedit only: But yet the Justices, if they see cause, may write to the Bishop to Certifie concerning the Institution .

(22.) Two Patrons pretended Title to Present; the one Presented, and the Bishop refused his Clerk. He sued in the Audience, and had an Inhibition to the Bishop, and after he there obtained Institution and Induction by the Archbishop: Afterwards the Inferior Bishop, Instituted and Inducted the Clerk of the other; for which Process issued out of the Audience against him; he upon that prayed a Prohibition, and a Prohibition was awarded as to the Incumbency, because the Ecclesiastical Courts have not to meddle with Institution and Induction (as was there said) for that would determine the Incumbency, which is triable at Common Law .

(23.) In a Prohibition prayed to the Ecclesiastical Court, the Case appeared to be this, viz. Holt was Presented, Instituted and Inducted to the Parish-Church of Storinton: afterwards Dr. Wickham draws him into the Ecclesiastical Court, questioning of him for some matters, as touching the validity of his Induction, and upon this a Prohibition was by him prayed: Williams Justice, A Prohibition here in this Case ought to be granted, this being directly within the Statute 45 Ed. 3. cap. 3. for here the very Title of the Patronage comes in question, with the determination of which they ought not to intermeddle; also matter of Induction, and the validity thereof is determinable at the Common Law, and not in the Ecclesiastical Court, and therefore a Prohibition ought to be granted, and the whole Court agreed with him herein, and therefore by the Rule of the Court a Prohibition in this Case was granted.

CHAP. XXV.

Of Avoidance and Next Avoidance; as also of Cession.

• 1. What Avoidance is; how Twofold.
• 2. The difference in Law between Avoidance and next Avoidance.
• 3. How many ways Avoidanee may happen; what Next Avoidance is: The word Avoidance falls under a double Acceptation in Law.
• 4. The Next Avoidance may not be granted by a Letter, it cannot be granted but by Deed.
• 5. Grant of a Next Avoidance by the Son, Living the Father Tenant in Tail, is void.
• 6. How Avoidance may be according to the Canon Law, which yet is otherwise by Statute Law.
• 7. The Release of the Next Avoidance, made after the Church becomes void, is void.
• 8. A wide difference between the Common Law and the Canon, in respect of Plenarty and Voidance.
• 9. What Cession is; and who shall Present in that case.
• 10. A Parson Beneficed accepting an Archdeaconry, falls not under this Cession.
• 11. In case of Cession the Ordinary is to give Notice to the Patron, otherwise the Lapse doth not incur against him.
• 12. In what case the former Benefice is not void by Cession, notwithstanding the taking of another Incompatible, and without Dispensation; And in what case a Church void is held Void as to all persons, except an Usurper.
• 13. In case of Three Grantees of the Next Avoidance, whether Two of them may Present the Third, being a Clerk.
• 14. What difference between an Avoidance by Parliament, and an Avoidance at the Ecclesiastical Law.
• 15. In what case an Advowson granted to a man, shall enure to him only for his life, and not go to his Executors.
• 16. A man having an Advowson in Fee of the Church, whereof himself is Incumbent, Deviseth that his Executors should next Present; Whether such Devise of the Next Avoidance be good.
• 17. A grant of a Next Avoidance to one is not after grantable by the same Grantor to another.
• 18. Whether the Greating of an Incumbent a Bishop in Ireland be a sufficient cause of Avoidance.
• 19. Where a Next Avoidance is granted to Two, whereof the one Release to the other, that Other may after bring a Quare Impedit in his own Name.
• 20. If one Grantee of the Next Avoidance Present the other Grantee of the same Avoidance, whether such Grant be void or not?

(1.) AVoidance is, when a Benefice or other Ecclesiastical Living is void of a lawful Incumbent: which generally may be said to be Twofold; either in Fact and in deed, as when the Incumbent is dead, or actually deprived: or in Law, as when the same person or Parson hath more Benefices than one Incompatible, having no Dispensation, nor qualified for Plurality . Or an Avoidance is either Temporal or Spiritual: (1) Temporal, as by death of the Incumbent. (2) Spiritual, as by Resignation, Deprivation, Creation, Cession. The Temporal is an Avoidance de facto; the Spiritual is an Avoidance de jure. Of this latter or Spiritual Avoidance the Ecclesiastical Court takes cognizance and determines, and therefore the Supreme Head may so dispense there, that such Avoidance in Law shall never come to be an Avoidance in Deed; and of this Avoidance in Law no Title accrues to the Patron, unless something be thereupon done by the Ecclesiastical Court, as a Declaratory Sentence, or such like. But upon Avoidance in Deed, Presentment accrueth to the Patron presently. Anciently when a Bishop was also the Parson of any Benefice, either in right of his Bishopric, or that the Benefice was annexed to his See, for the provision of his Table, or the better maintenance of Hospitality, the Fruits of such Benefice or Parsonage, during every vacancy or Avoidance of such Bishopric, where the Bishop was both Lord of a Manor, and Parson of a Parsonage thereto annexed, did not come to the King (as they now do, whereby the Parsonage and Manor are both consolidated into one, being now both holden to be Temporalties,) but the Parsonage came to the Archbishop of the Province, as a Spiritualty granted to his See by Privilege, during the vacancy of the Sees of such Bishops as were in his Province, as may appear by the Records of the Lord Archbishop of Canterbury. Ex Registro Archi-episc. Cant. & Ridl. View. cap. 6. Sect. 1.

(2.) There is in operation of Law a wide difference between Avoidance and Next Avoidance; the former is in esse, the other is only in pass; the former is the want of an Incumbent upon a Benefice de praesenti: the other is the Grant of a supply of that want de futuro, and is the Grant of a Next Avoidance in a Parsonage or other Spiritual promotion, which is Grantable whiles there is an Incumbent actually in being, and is in the nature of a thing in Action, and therefore will not pass without Deed. But a present Avoidance, though it be not merely a thing in Action, yet it is not Grantable in that kind as the other: The present Avoidance is not valuable, and therefore shall not be Assets; it may be otherwise with a Next Avoidance in some Cases, for the Next Avoidance is but a Chattel , the Grant whereof is not good without Deed . For an Advowson or the Patron's Right of Presentation to a Church, is not a Spiritual, but a Temporal Inheritance, grantable by Deed, and (if Appendant) as the Manor itself to which it is Appendant, as an Accessory to its Principal.

(3.) The Cognizance of Voidance of Benefices is Ecclesiastical by the Statute 25 Ed. 3. cap. 8. it being the want of an Incumbent on a Benefice (as aforesaid) and is opposed to Plenarty. This Voidance may be either by Death, Deprivation, Law or Act of Parliament, Cession or Plurality, Resignation, Creation, Incapacity, Union, Nonpayment of Tenths, &c. So that a Voidance may happen to be such either in Law, or in deed; virtually, or actually. Resignation is Juris proprii spontanea Refutatio, or the voluntary yielding up of the Incumbent (into the hands of the Ordinary) his interest and right, which he hath in his Benefice. Touching the Form of Resignation, and Protestation, which must be when the party will Resign, vid. Regist. fo. 302. F. N. B. fo. 273. and this Resignation, which is one of the causes of Avoidance, is to be made to the Ordinary; for it is a Rule in the Canon Law, Apud eum debet fieri Renunciatio, apud quem pertinere dignoscitur Confirmatio. The Next Avoidance is only a Power legally granted to another by the right Patron to Present a Clerk to the Church, when it shall next become void . And during such Voidance of a Parsonage, the Franktenement of the Glebe thereof is said so be in no man, but is said to be in Abeyance, that is, only in the remembrance, intendment, and consideration of the Law, that though for the present, during the time of such Vacancy, it be not actually in any person, yet it is by way of Abeyance ) in hope and expectation belonging to such one as shall next enjoy the same. The word Avoidance hath Two significations in the Law; the one (and that here intended) is when a Benefice or any Ecclesiastical Living becomes Void of an Incumbent; the other may be that, which is understood by what we intend in Pleadings in Chancery, when we say Confessed or Avoided, Traversed or Denied, &c. which hath no relation to the matter in hand. Likewise after the death of a Bishop, or Parson, the Freehold is in Abeyance of necessity ; but the Law will not admit the framing of Abeyances needless and in vain, as in Vacations of Bishops, Parsons, or the like, as in case of Single Corporations, Bishops, Deans, and Parsons, which must die, and leave a Vacuum of the Freehold . And this Next Avoidance is a Chattel locally, where the Advowson is, not where the Deed is; for it was Resolved in the Case of Holland verse. Shelley, That the Advowson had such a Locality in the Rape, where the Church was, that it accrued to the Plaintiff, wheresoever the Deed of Grant, or the Grantee himself was .

(4.) C. brought a Quare Impedit against the Archbishop of Canterbury and others, and Declared upon a Grant of the Next Avoidance, and the Defendant demanded Oyer of the Deed; and the Plaintiff shown a Letter, which was written by his Father to the true Patron, by which he had Writ to his Father, that he had given to his Son, that was the Plaintiff, the next Avoidance; and upon this there was a Demurr: And the whole Court for the Demurr, For that such Letter was a Mockery, for the Grant was not good without Deed: and Judgment was given accordingly . But by Deed it is Grantable, whereby Advowsons are also Grantable, as other Inheritances are, and the delivery of the Deed of Grant of it shall be instead of Livery made of the Church itself, according to Sir Edward Coke, in the first Part of his Institutes .

(5.) If a Tenant in tail and his Son join in a Grant of the Next Avoidance, it is void against the Son, and no Confirmation; for in the case of a Quare Impedit brought by Sir Marmaduke Wivel, the Point was this: Tenant in tail of an Advowson, and his Son and Heir joined in a Grant of the Next Avoidance. The Tenant in tail died; and it was Adjudged, that the Grant was utterly void against the Son and heir that joined in the Grant, because he had nothing in the Advowson, neither in possession or right, nor in Actual possibility at the time of the Grant .

(6.) The Acceptance of an Archdeaconry by one who hath a Benefice with Cure of Souls, may work an Avoidance at the Canon Law as to such Archdeaconry; yet an Archdeaconry, and the Promotion thereof, as being not any Cure of Souls, though an Ecclesiastical Preferment, seems not to be within the Statute of 21 H. 8. 13. And the Opinion of Wray Chief Justice, in Underhill 's Case upon that Statute was, that he conceived the Law there to be qualified in that case, by reason of a Proviso in the said Statute, viz. Provided, that no Deanery, Archdeaconry, &c. be taken or comprehended under the name of a Benefice having Cure of Souls, in any Article above specified .

(7.) In a Quare Impedit the Case was, The Plaintiff counted, that R. B. was seized of an Advowson, and granted the Next Avoidance to the Plaintiff and H. B. and that afterwards the Church became void, and after during the Avoidance H. B. released to the Plaintiff, and so that it belongs to him to Present. Upon this Count the Defendant did demur in Law; for it appeareth upon the Plaintiffs own showing, that H. B. ought to have joined with the Plaintiff in the Action, for the Release being made after the Church became void, is not of any effect, but utterly void. So is the Grant of the Presentment to the Church where the Church is void, for it is a thing in Action. Vid. the Lord Dyer, 28 H. 6. 26. 3 M. Dyer 129. 11 Eliz. Dyer 283. And afterwards Judgment was given, that the Release was void .

(8.) Touching Avoidances there is a wide difference between the Judgment of the Common Law, and that of the Canon; for if a mere Lay-man, not having holy Orders, be Presented to a Benefice, the Church remains void according to the Canon Law, notwithstanding such Presentation; but at the Common Law, albeit this be a mere nullity there also, and void, yet it doth adjudge the Church to be Full according to the public Admission, Institution, and Induction, and not according to the capacity of the person, which is a thing secret, until such an one be deprived for it by Sentence in the Spiritual Court; and so the Church in construction of Law (understand it of the Common Law) is held void but from the time of Deprivation, of which notice ought to be given to the Patron . So that according to the Canon Law there cannot be a Plenarty by the Presentation, Admission, Institution, and Induction of a mere Lay-man to a Church; it is otherwise at the Common Law, which doth not so much consider the Capacity or Incapacity of the person Instituted and Inducted, as the Institution and Induction itself, until such time as there is a Sentence of Deprivation in the Ecclesiastical Court.

(9.) Cession is when an Ecclesiastical person Beneficed is Created a Bishop; or when the Parson of a Parsonage taketh another Benefice without Dispensation, not being otherwise qualified for Plurality: In both which cases their first Benefices become void, and are said to be so void by Cession; insomuch that the King shall Present pro hac vice (whoever be Patron) to that Benefice, which he had who was Created Bishop; and in the other Case the Patron may Present . So that if a Parson or Dean in England take and accept of a Bishopric in Ireland, it will cause that the First Church shall become void by Cession . Resolved in Holland 's Case, and in Digby 's Case, 4. Rep. That the Patron may Present, as soon as the Incumbent is Instituted in a Second Living, without Deprivation.

(10.) By the Council of Lateran it was Ordained, That whoever having a Benefice with Cure of Souls, should accept of another cum Cura, should ipso jure be deprived of the former, the Patron whereof might Present as to a Benefice void ; and this without any Sentence Declaratory of the First Church being void, if there were no License or Dispensation to the contrary in the case , to prevent a Cession of the former Benefice. For it hath been Resolved, That the Acceptance of a Second Benefice voids the former by Cession, without any Sentence Declaratory by the Statute of 21 H. 8. 13. but if having a Benefice cum Cura he Accept of an Archdeaconry, the same is not such a Benefice with Cure of Souls within the said Statute, as to make the former void, as was then also Resolved .

(11.) In case of Cession in this kind, it is requisite that Notice thereof be given by the Ordinary to the Patron, otherwise the Lapse will not incur against him, in case he Present not within the Six months . Nor do the Courts at Common Law take notice of such Cession, until the same be certified unto them by the Ordinary. And wherever an Ecclesiastical Dignity and a Benefice with Cure are Incompatible, there the Acceptance of the one will be a Cession of the other; For which reason, if the Incumbent of a Parsonage or Vicarage with Cure, be made Dean of a Cathedral, his Parsonage or Vicarage becomes void by Cession , unless he be qualified for Plurality. Or if a Dean be made a Bishop, yea, though a Dean or Parson in England be made a Bishop in Ireland (as aforesaid) his Benefice becomes void, as was Resolved in Evans and Askwith 's Case; for that the Constitution or Council, which makes it void, is general, and not limited to any place: And so it was also Resolved, 3 E. 3. Fitz. Trial, and so adjudged, 21 Jac. C. B. in the Case between Woodley and the Bishop of Exon and Manwaring .

(12.) The case may so happen, that albeit a man having a Benefice with Cure of Souls accept another, and be Instituted and Inducted into the same; yet his First Benefice shall not be void by Cession, though the Benefices be incompatible, though there be no Dispensation in the case, and although himself be not otherwise qualified for Pluralities: For it hath been Resolved, That if a man having one Benefice, accept another, and be Instituted and Inducted into the Second, and then read not his Articles; that yet the First Benefice voids not by Cession, because the Second is as not taken . Notwithstanding, it cannot be denied, but that where a man having a Benefice with Cure of Souls, above the value of Eight pounds per Ann. doth take another with Cure, and is thereto Admitted, Instituted, and Inducted, the First Benefice (without Dispensation) becomes void, as in the Case of the King against George Lord Archbishop of Canterbury: In which Case it was held, That the Church was absolutely void in facto & jure by taking of a Second Benefice, and that by the express words of the Statute of 21 H. 8. So that by the Acceptance of a Second Benefice the Church is void facto & jure, quoad the Patron and all others . Sed Q. whether void as to an Usurper; for in some cases a Benefice may be void as to some persons, and not void as to others: As in the Case of Simony, whereby as well as by Cession a Church becomes void; yet in that case although it be void to all men quorum interest, to the King and his Incumbent, and all that claim under him, and to the Parishioners, to the Ordinary, and to the like, yet (according to Sir Hen. Hobart Chief Justice) it is not void to an Usurper; for a man without Right cannot Present unto it as to a Church void, nor the Ordinary so discharge himself, if he receive the Clerk of an Usurper; for he is none of them quorum interest. Pasch. 14 Jac. Rot. 1026. Case of Winchcombe against the Bishop of Winchester and Rich. Pulleston. Hob. Rep.

(13.) If the Next Avoidance be granted to Three persons, and after the Church become void, and then Two of the Three Present the Third Grantee, being a Clerk; in this case the Presentation is good, and the Bishop may not refuse him, inasmuch as all Three were Joynt-tenants thereof by the Grant, and only Two of them join in the Presentment, for that the Third person cannot Present himself; but if only one of these Three Grantees Present the Third, the Bishop hath power to refuse him . And if an Incumbent having the Advowson, do Devise the Next Avoidance, it seems it is good. Trin. 13 Jac. B. R. Harris verse. Agustine. Rol. Rep.

(14.) In Holland 's Case it was Resolved, That before the Statute of 21 H. 8. c. 13. if he which had a Benefice with Cure, accept another with Cure, the First was void; but this was no Avoidance by the Common Law, but by Constitution of the Pope, of which the Patron might take Notice if he would, and Present, without Deprivation: But because the Avoidance accrued by the Ecclesiastical Law, no Lapse incurred without Notice, as upon a Deprivation or Resignation; so that the Church was void for the benefit of the Prtron, not for his disadvantage: But now if the First Benefice be of the value of Eight pounds per annum, the Patron at his peril ought to Present, for to an Avoidance by Parliament everyone is party, but if not of Eight pounds, it is void by the Ecclesiastical Law, of which he needs not take Notice .

(15.) In a Quare Impedit The Defendant said A. was seized of the Advowson of the Church of D. and by Deed 19 Jac. granted to J. S. the Next Avoidance, and that J. S. died, and made his Executor, who Presented the Plantiff to the Church being void. Upon Non concessit it was found, That A. granted to J. S. durante vita ipsius J. S. primam & proximam Advocationem, and that he died before the Church became void. Whether this was an absolute Grant of the Next Avoidance, as is pretended, was the Question. And Resolved, it was not; but it is limited to him to Present to the Advowson if it becomes void during his life, and not that otherwise it should go to his Executors; and therefore it was Adjudged against the Defendant .

(16.) The Incumbent of a Church purchased the Advowson thereof in Fee, and devised that his Executor should Present after his decease, and devised the Inheritance to another in Fee. It was said, the devise of the Next Avoidance was void, because when his Will should take effect, the Church was instantly void. But the Court held the devise was good, for the Law is so, and it shall be good, according to the intent of the party expressed in his will . The Grant of the Next Avoidance during the Avoidance, is void in Law. Steephens and Clark 's Case. More 's Reports.

(17.) In a Quare Impedit the Case was, The Corporation of B. being seized of an Advowson, granted the Next Avoidance to J. S. and afterward granted primam & proximam Advocationem to the Earl of B. who granted it to the Plaintiff: The Church became void, J. S. Presented his Clerk, who was Inducted, and then the Church became void again. It was Resolved, that the Second Grant was void, so as the Plaintiff had no Title, for when he had granted primam & proximam Advocationem to one, he had not Authority to grant it after to another; but if the First Grant had been lost so as it could not have been pleaded, there perhaps the Second Grand had been good .

(18.) In a Quare Impedit the Case was, H. being Incumbent of a Church, was Created a Bishop in Ireland, and the Queen Presented the Defendant. It was the Opinion of the Justices, That this Creating of the Incumbent a Bishop in Ireland was a good cause of Avoidance, and that the Queen should have it by her Prerogative: But if the Queen doth not take the benefit of the First Avoidance, but suffers a Stranger to Present, and the Presentee dies, she may not have Prerogative to Present to the Second Avoidance .

(19.) The Next Avoidance of a Church was granted to A. and B. A. releases to B. and after the Church became void: It was Adjudged in this Case, That B. may Present, and upon Disturbance have a Quare Impedit in his own Name . Or thus: The Next Avoidance was granted to Two, the one Released to the other, who brought a Quare Impedit in his own Name; and it was adjudged maintainable, because it was before the Church was void .

(20.) A. seized of the Manor of D. to which an Advowson was Appendant, granted the Next Avoidance to B. and D. & eorum cuilibet conjunctim & divisim Haered. Executor. & Assignatis suis. The Church void, B. Presents D. to the Church: Adjudged, that the Presentment of him was good, though he were one of the Grantees .

CHAP. XXVI.

Of Pluralities.

• 1. Pluralities condemned by the Council of Lateran; yet dispenc'd with by Kings and Popes.
• 2. What in this matter the Pope anciently exercised by way of Usurpation, the King may now do de jure; The difference between them in the manner how.
• 3. What persons are qualified for granting or receiving Pluralities.
• 4. Several Laws relating to Pluralities, Dispensations, and Qualifications.
• 5. How the 8 l. annual value of a Benefice shall be understood, whether as in the Kings Books, or according to the true value of the Benefice.
• 6. The Lord Hobart 's Opinion touching the Statute of 21 H. 8. relating to Pluralities.
• 7. What the Pope's Power in England was before the making of the said Statute; And whether the taking of a Bishopric in Ireland by a Dean in England, makes the Deanery void by Cession?
• 8. The Chaplains of Persons of Honor, having divers Benefices, shall retain them for their Lives, though they be discharged of their Service.
• 9. Whether the Ecclesiastical Court may take cognizance of Plenarty or Voidance, after Induction; And whether the cognizance of Cession or no Cession, belongs to the Temporal or Spiritual Count.
• 10. Difference between Voidance by Act of Parliament, and Voidance by the Ecclesiastical Law.
• 11. A Prohibition granted upon Sequestration of a Benefice by the Bishop.
• 12. The Fifth Paragraph aforesaid Adjudged and determined.
• 13. How the Voidance in case of Three Benefices in one person.
• 14. Benefice not void, if the King License the Incumbent to be an Incumbent and a Bishop.
• 15. How the taking of a Second Benefice is a Voidance of the First.
• 16. Whether so, in case of a Chaplain of the King.
• 17. Whether so, in case of a Si modo or Modo sit, by way of a Limitation in the Dispensation.
• 18. Whether the word Dispensamus be necessary in the Letters of Dispensation for a Plurality?
• 19. The Kings Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8.
• 20. Whether a Third Chaplain retained by a Countess Widow, is qualified to purchase a Dispensation for Plurality.
• 21. In reference to Plurality, whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice.
• 22. Whether Admission and Iustitution makes the First Benefice void without Induction.
• 23. Whether before the Statute of 25 H. 8. the Pope might here grant Dispensations for Pluralities.
• 24. Whether the Retainer of a Chaplain may be good and sufficient without a Patent.
• 25. In what case a Dispensation for Plurality may come too late, though before Induction.
• 26. Three Resolutions of Law in reference to Avoidance by reason of Plurality.

(1.) PLurality, according to the Common acceptation of the word, is where one and the same person is possessed of Two or more Ecclesiastical Benefices with Cure of Souls, simul & semel. It was long since condemned by the general Council of Lateran , whereby it was Ordained, That whatever Ecclesiastical person, having one Benefice with Cure of Souls, doth take another such, shall ipso jure be deprived of the former; and if he contest for the retaining thereof, shall lose both . Notwithstanding which Canon, it was heretofore usual with the Pope to usurp a power of Dispensation in this matter, the which de jure was anciently practiced by Kings, as Supreme, and as the original Donors of Benefices and Ecclesiastical Dignities; witness Edmond that Monk of Bury, who by virtue of such Dispensations held several Ecclesiastical Benefices at one and the same time. The said Canon (as to the substance thereof, relating to Pluralities ) is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards, and the time of Avoidance thereof to be immediately after possession, by Induction into the other with Cure of Souls; with power of Presentation de novo granted to the Patron of the former Benefice, and all benefit of the same to the Presentee, as if the Incumbent had died or resigned. Q. Whether the said yearly value of Eight pounds or above, ought to be computed according to the valuation in the Kings Books, as returned into the Exchequer, and now used in the First-Fruits Office, or according to the just and true value of the Benefice . Q. likewise, Whether a Parson of a Church Impropriate, with a Vicar perpetually endowed, accepting of a Presentation unto the Vicarage without Dispensation, be a Pluralist within the Canon and Statute aforesaid? The Negative is supposed to give the best Solution to the Question

(2.) The same power of granting Faculties, Pluralities, Commendams, &c. which anciently the Pope exercised in this Realm by Usurpation, is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferred unto and vested in the Crown de jure; also from and under the King, in the Archbishop of Canterbury and his Commissaries by Authority derived from the Crown: The Pope anciently granted to Bishops after Consecration, Dispensations Recipere & obtinere Beneficium cum cura animarum, to hold the same in Commendam, the which he did in this Realm by Usurpation, and which the Crown may now do de jure; for the same power (as aforesaid) which the Pope had, is by the Acts of Parliament in 25 H. 8. & 1 Eliz. in the King de jure. But there is a very material difference between the Dispensations anciently here granted by the Pope, and those at this day by the King and Archbishop, Confirmed by the Kings Letters Patents, which are not good otherwise than to such as are Compleat Incumbents at the time of granting thereof, whereas it was sometimes otherwise with the other; whence it is observable, that in Digbie 's Case the Dispensation came too soon: A. is Instituted and Inducted into a Benefice with Cure, value Eight pounds per ann. Afterwards the King presenting him to another with Cure, he is Admitted and Instituted: Afterwards the Archbishop of Canterbury grants him Letters of Dispensation to hold Two Benefices; the King confirms the same: Afterwards he is Inducted into the Second Benefice. In this case the Dispensation comes too late, because by the Institution into the Second Benefice the First Benefice was void by the Stat. of 21 H. 8. .

(3.) The Acceptance of a Second Benefice, with a Dispensation, comes not under the notion of prohibited Pluralities, in case the First were under the annual value of Eight pounds, or sine cura. And what persons are qualified either for the Granting or receiving Pluralities, appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King, Queen, and Prince, and other the King's Children; for which reason they may retain as many Chaplains as they please, and each of them qualificable by a Dispensation for Plurality: But if either of the King's Chaplains be Sworn of his Majesty's most Honorable Privy Council, such may purchase a Dispensation to hold Three Benefices with Cure of Souls. The Persons specially qualified by Dispensations for Pluralities, are either (1) Such as are retained as Chaplains to Persons of Honor: Or (2) Such as are qualified thereto in respect of their Birth: Or (3) Such as are dignified with some certain Degrees in either of the Universities of this Kingdom. In reference to the first of these, every Archbishop and Duke may have Six Chaplains; Marquess and Earl, Five; every Viscount and other Bishop, Four; Lord Chancellor, Three; Knight of the Garter, Three; Baron, Three; Dutchess, Marchioness, Countess, and Baroness (being Widows,) Two; Treasurer and Controller of the Kings House, Two; the Kings Secretary and Dean of his Chapel, the Kings Almner and Master of the Rolls, Two; the Chief Justice of the Kings Bench, and Warden of the Cinque Ports, One. In reference to the Second qualification, viz. By Birth, the Brothers and Sons of all Temporal Lord's, and of Knights, born in Wedlock, may purchase Dispensations to hold Two Parsonages, &c. with Cure of Souls. In reference to the Third, all Doctors and Batchelors of Divinity, Doctors and Batchelors of Law, Presented to any of these Degrees, not by grace only, but by any of the Universities of this Realm, may purchase and hold as aforesaid. Vid. Statute 21 H. 8. cap. 13.

(4.) Although by the Letter of which Act the First Living is not void until Induction into the Second, the words being [ If the party be Instituted and Inducted in possession of the Second Living, that then the first shall be void: ] yet to avoid the great inconveniency (as Sir Simon Degge observes in his Parsons Counselor ) that otherwise would ensue, it has been held, That the First Living is void upon the bare Institution into the Second; and so it should seem the Law was before the making of this Act, where the party had no Dispensation. The sufficiency of qualification for Plurality relates as well to the Dispensation as to the Person; for if the Dispensation, after its being had from the Master of the Faculties, be not confirmed under the Great Seal of England, other qualifications will not suffice. Nor are the supernumerary Chaplains of any person of Honor, retained by him above the Number allowed by the Statute, qualified for Plurality. Co. 4. 90. B. versus the Bishop of Gloucester, and Saveacre. Anders. More, 561. The death, attainder, degradation, or displacing of a Chaplains Lord, or his discharging his Chaplain, unqualifies him for a Plurality of incompatible Livings ; otherwise of the Chaplain of a Dutchess, Marchioness, Countess, or Baroness, in case of After-marriage . A double Capacity in one and the same person of Honor to qualify his Chaplains, doth but capacitate him to qualify his Number of Chaplains only according to his best qualification . A Person of Honor having retained his full Number of Chaplains, and discharging them after their preferment, may not during their Lives qualify others .

(5.) The Question was formerly put, Whether the 8 l. yearly value, intentioned in the Statute of 21 H. 8. c. 13. shall be understood according to the Taxed value in the Kings Books, or according to the very true value of the Benefice? Mr. Hughes in his Parsons Law reports a Case in King James 's time, wherein this Question was debated pro & con, the Judges equally divided, the Case for difficulty and variance of Opinion adjourned, and afterwards (as he there speaks de auditu ) by order of the King compounded . In that Case Two Presidents it seems were shown in proof of that Opinion, which inclined to have it taken according to the very value of the Benefice ; notwithstanding, when the same point came again several years after into question, the Court then seemed to incline against the Opinion, which was for the very value of the Benefice: But ( says he ) the Case was not then resolved or adjudged, but remaineth a Question undetermined . Quaere the Law. Foster and Walmesley Justices held the value should be taken according to the Taxed value, as in the Book of First-Fruits: but Warburton and Coke Chief Justice, Contra. It hath been Resolved in Holland 's Case, and likewise in Digby 's Case, Rep. 4. and often before since the Council of Lateran, An. Do. 1215. That if a man have a Benefice with Cure, whatever the value be, and is Admitted and Instituted into another Benefice with Cure, of what value soever, having no Qualification or Dispensation, the First Benefice is ipso facto so void, that the Patron may Present another to it, if he will. But if the Patron will not Present, then if under the value, no Lapse shall incur until Deprivation of the first Benefice, and Notice: But if of the value of eight pounds, or above, the Patron at his peril must Present within Six months by the Statute of 21 H. 8. . And in that Case of Digby it was adjudged, That when a man hath a Benefice with Cure above eight pounds, and afterwards taketh another with Cure, and is Presented and Instituted, and before Induction procures the Letters of Dispensation, that this Dispensation comes too late: For by the Institution Ecclesia plena & consulta existit against all persons except the King; for every Rectory consisteth upon Spiritualty and Temporalty. And as to the Spiritualty, viz. Cura animarum, he is complete Parson by the Institution; for when the Bishop upon Examination had, admitteth him able, then he doth Institute him, and saith, Instituo te ad tale Beneficium, & habere curam animarum of such a Parish, & accipe curam tuam, &c. Vide 33 H. 6. 13. But touching the Temporalties, as the Glebe-Lands, &c. he hath no Freehold in them until Induction: For by the General Council of Lateran, Anno Dom. 1215. it appeareth, That by the acceptance of two Benefices the first is void, Aperto jure; for upon this Council are the Books of the Common Law in this Ca • e founded. And it was in this Case Resolved, That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Institution is an Acceptance by the Common Law .

A man was Presented to a Church with a Vicarage endowed; the Parson accepted of a Presentation to the Vicarage without Dispensation: Whether this were a Plurality by the Canon Law, and by the Statute of 21 H. 8. was the Question. Hobart Chief Justice was of Opinion, That notwithstanding they were several Advowsons, and several Quare Impedits might be brought of them, and several Actions maintained for their several Possessions, yet the Presentment of one man to the Parsonage and Vicarage was no Plurality, because the Parsonage and Vicarage are but one Cure: And there is a Proviso in the Statute, That no Parsonage that hath a Vicar endowed, shall be taken by the Name of a Benefice with Cure within the Statute, as to make it a Plurality .

(6.) The Lord Hobart in Colt and Glover 's Case against the Bishop of Coventry and Lichfield is clear of Opinion, That Bishoprics are not within the Law under the word [ Benefices ] in the Statute of 21 H. 8. cap. 13. So that if a Parson take a Bishopric, it avoids not the Benefice by force of this Law, but by the ancient Common Law, as it is holden 11 H. 4 60. But withal he holds it as clear, That if a Bishop have or take two Benefices, Parsonages, or Vicarages, with Cure, either by Retainer, or otherwise de novo▪ he is directly as to these Benefices within the Law; for he is to all purposes for those not a Bishop (whether it be in his own Diocese or not) but a Parson or Vicar; and by that Name must sue and be sued, and Prescribe and Claim. For if any person, having one Benefice with Cure, &c. take another, &c. whosoever will hold two Benefices, must have such a Qualification, and such a Dispensation, as the Law 21 H. 8. requires: Whereupon the Lord Hobart in the foresaid Case is clear of Opinion, That if a man be qualified Chaplain to any Subject, and then be made a Bishop, his Qualification is void, so as he cannot take two Benefices de novo after by force of that Qualification: But if he had lawfully two Benefices before his Bishopric, he may by Dispensation of Retainer (besides his former Dispensation, to take two Benefices) hold them with his Bishopric. And if a man, being the King's Chaplain, take a Bishopric, he holds that he ceaseth to be the King's Chaplain; and Bishops are not in that respect Chaplains to the King, within the meaning of the Statute: So that the Clause of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain, will not serve them . In this Case of Colt, &c. against the Bishop of &c. he is of Opinion, That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Dispensation procure another with Cure, to be united to it after, though they make but one Benefice; for this Cautel of Union is provided for by Name: But of Unions before, he is of another Opinion▪ Case Colt, Hob. Rep.

(7.) In ancient times the Pope used to grant Dispensations of the Canons in this Realm, and so might the King have done. The first Statute that restrained the power of the Pope, was that of 21 H. 8. of Pluralities: That the Church shall be void, notwithstanding any Grant of the Pope: Also the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have dispensed with a man to have twenty Benefices; and so might the King. The 21 H. 8. was the first Statute, or Law, which gave allowance for Pluralities; afterwards by the 28 H. 8. the power of the Pope was given to the King: But as it was said and agreed in the Case of Evans and Ascough, that was not by way of Introduction, but Cumulutive and by way of Exposition. And by that Statute the Archbishop of Canterbury had in this matter a concurrent power with the King, and Dispensation granted by the King, or by the Archbishop, is good . Also in the said Case it was agreed by all the Justices, That if a Parson or Dean in England doth take a Bishopric in Ireland, it makes the first Church void by Cession; because Ireland is a Subordinate▪ Realm to England, and governed by the same Law: For it was there agreed by all, as well by the Justices as those of the Barr, That if a Parson or Dean in England take a Bishopric in Ireland, the first Church is void by Cession. Justice Whitlock gave this Reason for it, Because there is but one Canon Law per totam Ecclesiam; and therefore wherever the Authority of the Pope extended itself, be it in one or divers Realms▪ the taking of a Bishopric made the Deanery or Parsonage void. Nemo potest habere duas Militias, nec duas Dignitates, & est impossible quod unus homo potest esse in duobus locis uno tempore. And 5 R. 2. F. Trial 54. the whole Spiritual Court is but one Court; which Book is very remarkable to that purpose, That the Canon Law is but one Law: Which Reason was also given by Justice Doddridge in the same Case, and upon the same point, who said, That the Law of the Church of England is not the Pope's Law, but that all of it is extracted out of Ancient Canons; as well General as National. Another Reason which he then gave was, Because Ireland is a Subordinate Realm, and governed by the same Law: Because although before the time of H. 2. they were several Kingdoms or Realms, yet the Laws of England were there Proclaimed by King John, and is subject to the Laws of England. And if the King, having a Title to Present to a Church in Ireland, confirm it to the Incumbent under the Great Seal of England, it is good. 45 Ed. 3. 70. .

(8.) In Savacre 's Case it was adjudged in the Common Pleas, That if a Baron, or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices, and after they discharge their Chaplains from their Service, they shall retain their Benefices during their Lives, and if the Baron takes others to be his Chaplains, they cannot take many Benefices during the Lives of the others, which are Beneficed and Discharged of their Services; for if the Law were otherwise, the Lord's might make any capable of holding Benefices by admitting them to be their Chaplains .

(9.) T. prayed a Prohibition to the Arches; the Case was this, One had a Recovery in a Quare Impedit, and he had a Writ to the Bishop against T. upon which A. his Clerk was admitted, &c. and after the Recovery died, and T. supposing his heir to be in the Ward of the King, and that the said A. took another Benefice without sufficient Qualification, by which the Church was void by Cession, and he attained a Presentation of the King, and he was Admitted, &c. by the Lord-keeper, being within the Diocese of Lincoln, and A. sued him in the Ecclesiastical Court, and T. prayed a Prohibition, and it was granted per totam Curiam; for without question there ought nothing to be questioned in the Ecclesiastical Court after the Induction of the party: And whether it is a Cession or not, doth properly belong to the Common Law: And Jones cited a Judgment in William 's Case according. Note, that by the Constitution of Otho and Othobon, That Institution and Induction is voidable in the Ecclesiastical Court, if no Prohibition be prayed .

(10.) In the Case of the King against the Archbishop of Canterbury and Thomas Prust Clerk in a Quare Impedit, was vouched Holland 's Case in Cok. 41, 51. to show that there is a difference between Voidance by Act of Parliament, and Voidance by the Ecclesiastical Law: For before the Statute by the taking of the second Benefice, the first Church was void; but not so that the Lapse incurred upon it. And as for Pluralities, the words of the Statute are, That it shall be void, as if he were naturally dead; and therefore if a man takes a second Benefice and dies, Issue ought to be taken, whether the first vacavit per mortem; And it is found, That Not: For it was void before the death of the Incumbent .

(11.) P. was Collated, Instituted, and Inducted by the Bishop of Exeter, Patron Dr. Hall; the Bishop Collates another, pretending that the first Incumbent had taken a second Benefice, whereupon the first was void; and revera the first Incumbent had a Dispensation: And notwithstanding that, the Bishop Sequesters the Benefice; and upon Discovery thereof to the Court, a Prohibition was granted .

(12.) In Bene 's Case against Trickett, the point was, Whether the value of the Church for Plurality by 21 H. 8. shall be eight pounds according to the Book of Rates and Valuation in the First-fruits Office, or according to the very value of the Church per Annum. Atkinson, That according to the value of the King's Books: For the Parliament never thought that any man could live upon so little as eight pounds per Annum, which is not six pence a day. Note, 38 E. 3, 4. and Dyer 237. but by the Court, That it shall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner, to whom agreed Yelverton, That the eight pound shall be accounted according to the very value of the Church per Annum .

(13.) In a Quare Impedit it was doubted, If A. having two Benefices with the Cure by Dispensation, and then takes a third Benefice with Cure, If now both the first Benefices, or the first of them only be void. Hieron said, That it was adjudged that both of them should be void .

(14.) If the King grant a Licence to an Incumbent to be an Incumbent and a Bishop▪ and he afterwards be made a Bishop, the n •• ice is not void . Henry de Blois, Brother to King Stephen, was Bishop of Winchester, and Abbot of Glassenbury .

(15.) It seems that at the Common Law, if an Incumbent had taken a second Benefice with Cure, neither the first nor the second had been void . But by the General Council of Lateran, held in the year 1215. it was ordained, That if a man took divers Benefices with Cure of Souls, the first should be void, unless he had a Dispensation from the Pope . This Constitution of the said General Council is ratified and confirmed in Pecham 's Constitutions, at a Provincial Synod held in this Realm . Also if an Incumbent take a Second Benefice with Cure, whereby the first is void by the Canon as to the Patron, so as he may Present before any Deprivation, yet until Deprivation it is not void as to a Stranger; for if he sues a Parishioner for Tithes, the taking of a second Benefice is not any bar to him. Trin. 13. Car. B. R. per Justice Bark. which Justice Yelverton in his Argument in Prust 's Case said, That it had been so Adjudged . And if an Incumbent of one or more Benefices with Cure be consecrated Bishop, all his Benefices are ipso facto vold; upon which Voidance the King, and not the Patron, is to Present to the Benefices so void by Cession; and any Dispensation after Consecration comes too late to prevent the Voidance; for the Pope could formerly, and the Archbishop now, can sufficiently Dispense for a Plurality by the Statute of 25 H. 8. . The chief Text of the Canon Law against Pluralities seems to be that of the Decretal de Praebend. & Dign. c. de multa, where it is said, That in Concilio Lateranensi prohibitum, ut nullus diversas Dignitates Ecclesiasticas, vel plures Ecclesias Parochiales, reciperet, contra Sanctorum Canonum Instituta, &c. Et praesenti decreto statuimus, ut quicunque receperit aliquod Beneficium curam habens animarum annexam, si prius tale beneficium habehat, sit ipso jure privatus, & si forte illud retinere contenderit, etiam alio spolietur, &c. Consonant to which is that in Decret. Caus. 21. q. 1. In duabus Ecclesiis Clericus conscribi nullo modo potest.

In the Case of a Commendam adjudged in Ireland, the Original and Inconvenience of Dispensations and Non obstante 's was well weighed and considered; where it was said, That the Non obstante in Faculties and Dispensations was invented and first used in the Court of Rome; for which Marsil. Pat. pronounced a Vae against the said Court, for introducing that clause of Non obstante, That it was an ill President, and mischievous to all the Commonwealths of Christendom. For the Temporal Princes perceiving that the Pope dispensed with Canons, in imitation thereof have used their Prerogative to dispense with their penal Laws and Statutes, when as before they caused their Laws to be religiously observed, like the Laws of the Medes and Persians, which could not be dispensed with. See the Case of Penal Statutes Co. 7. fo. 36. h. For this Reason it was that a Canonist said, Dispensatio est vulnus quod vulnerat jus commune. And another saith, That all abuses of this kind would be reformed, Si duo tantum verba, viz. [Non obstanie] non impedi • ent. And Matth, Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions, which were beneficial for the Church of England, Sed omnia baec & alia (says he) per hoc repagulum [Non obstante] infirmantur.

(16.) In a Quare Impedit the Case was, Dr. Playford being Chaplain of the King, accepted a Benefice of the Presentation of a common person; and he after accepted another Presentation of the King, without any Dispensation, both being above the value of eight pounds per Annum. The Question was, Whether the first Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the second Benefice without Dispensation, then this remains a long time void, so that the King was entitled to present by Lapse, and presented the Plaintiff. The Statute of 21 H. 8. provides, That he who is Chaplain to an Earl, Bishop, &c. may purchase Licence or Dispensation to receive, have, and keep two Benefices with Cure, provided that it shall be lawful for the King's Chaplains, to whom it shall please the King to give any Benefices or Spiritual Promotions, to what number soever it be, to accept and receive the same without incurring the danger, penalty, and forfeiture in this Statute comprised; upon which the Question was, Whether by this last Proviso, a Chaplain of the King having a Benefice with Cure above the value of eight pounds per Annum, of the Presentation of a Common person, might accept another Benefice with Cure over the value of eight pounds also of the Presentation of the King without Dispensation • The words of the Statute, by which the first Church is made void, are, That if any Parson having one Benefice with Cure of Souls▪ being of the yearly value of eight pounds or above, accept or take any other with Cure of Souls, and be Instituted and Inducted into possession of the same, that then, and immediately after such possession had thereof, the first Benefice • hall be adjudged in the Law to be void; Vide Holland 's Case, 4 Co. 75. • . This Case was not argued, but the point only opened by Dodesidge, Serjeant of the King, for the Plaintiff.

(17.) A. was Parson of M. which was a Benefice with Cure, of the value of eight pounds, and was Chaplain to the Earl of S. and obtained a Dispensation to accept of another Benefice, modo sit within Ten miles of the former, which was confirmed under the Great Seal▪ He accepted of another Benefice Seventeen miles distant from the first, and was Instituted and Inducted, both Benefices being within the Diocese of Lincoln. The Archbishop in his Visitation Inhibited the Bishop of Lincoln not to execute any Jurisdiction during his Visitation: It was found that the Patron had neglected to present to the first Benefice within the Six months; and that the Bishop of Lincoln within the second Six months Collated one to the first Benefice, who was Admitted and Inducted. The points were, Whether (1) Si modo was a Condition in this Licence, and made the first Benefice void when he took the Second? (2) Whether the Bishop Collating, during the time of the Archbishop's Visitation, and after his Inhibition, was good? Resolved, That in the principal Case, Si modo should not be taken for a Condition, and that the Benefice should not be void quoad the Patron, as the taking of a second Benefice is by the Statute of 21 H. 8. and then the second point of the Collation by the Bishop, in the time of the Visitation, and also the Inhibition, will not be material.

(18.) Quare Impedit, pretending the Church void for Plurality; The Defendant said he was Chaplain to the Lord M. and pleaded a Dispensation from the Archbishop of Canterbury, and Confirmation thereof. In the Letters of Dispensation the words were (mentioning the two Benefice to be of small value) unimus anneximus & incorporamus, the second Benefice to the first without the word of Dispensamus thereof: The Court held it a sufficient Dispensation; for it is not of necessity to have the word Dispensamus; and if the Circumstances prove it, it is sufficient.

(19.) In the Case between Whetstone and Higford, it was held by the Justices, That if the Queen retains a Chaplain by word only, yet he is such a person as may have a Plurality within the Statute of 21 H. 8. of Pluralities, and is a person able to make a Lease. And in a Quare Impedit it was Resolved, That if there be two Parsons of one Church, and each of them hath the entire Cure of the Parish, and both the Benefices be of the value of eight pounds, and the one dieth, and the other be presented, it is a Plurality within the Statute of 21 H. 8.

(20.) The Countess of K. being a Widow, retained two Chaplains, and after retained a third; the third purchased a Dispensation to have two Benefices with Cure, and he was advanced accordingly, whereof the first was above the value of eight pounds: It was adjudged in this Case, and afterwards affirmed in a Writ of Error, That he was not lawfully qualified within the Statute of 21 H. 8. by which the first Benefice, by acceptance of a second, was void; and that the Title did accrue to the Queen to present; for it was Resolved, That the Statute gives power to a Countess to retain two Chaplains and no more, and when the Statute is executed she cannot retain a third Chaplain; and the Retainer of the third cannot divest the capacity of Dispensation which was vested by her Retainer in the two first Chaplains.

(21.) A Parson having a Benefice of the value of eight pounds, took a second Benefice without Dispensation, being above the value of eight pounds: The Court took no consideration of the Statute of 26 H. 8. and the value there mentioned, but regarded only the true value of the Benefice.

(22.) For Title to an Avoidance the Statute of 21 H. 8. was pleaded, touching the taking of a second Benefice with Cure; Issue was upon the Induction; by which it seemed to be admitted, That Admission and Institution did not make the first Benefice void without Induction.

(23.) Quare Impedit brought, the Defendant pleaded the Statute of 21 H. 8. cap. 13. of Pluralities, that the last Incumbent had a Benefice with Cure of the value of eight pounds, and took another Benefice and was Inducted 1 Eliz. upon which the Queen did present the Defendant by Lapse: The Plaintiff shown the Proviso in the Statute of 25 H. 8. cap. 21. That Chaplains qualified might purchase Dispensations and take two Benefices, and that 1 Eliz. before the Parliament he purchased a Dispensation from the Pope, and after he took the second Benefice, and died. The Question was, Whether before the Statute of 25 H. 8. the Pope might grant Dispensations? It was Resolved, he could not; for that the King's of England had been Sovereigns within their Realms of the Spiritualties; and the Justices held, That the Dispensation in question was made 1 Eliz: and so out of the Statute of 25 H. 8. cap. 21. and that this Dispensation to retain a second Benefice was against the Statute of 21 H. 8. cap. 13.

(24.) The Countess of K. had two Chaplains by Patent, a third had no Patent of Chaplainship, but he was first Retained, and took two Benefices by Dispensation: It was Adjudged, he was lawful Chaplain; for the Patent is not of necessity, but only in case where he hath cause to show it, and here he hath no cause to show it, because her Retainer was good without a Patent.

(25.) The Case between Robins, Gerrard, and Prince was in effect this, viz. A man is Admitted, Instituted, and Inducted into a Benefice with Cure of the value of eight pounds, and afterwards the King presents him to the Church of D. which is a Benefice with Cure, and he is Admitted and Instituted. The Archbishop grants him Letters of Dispensation for Plurality, which Letter the King Confirms, and afterwards he is Inducted to the Church of D. In this Case it was Adjudged, That the Dispensation came too late, because it came after the Institution; for by the Institution the Church is full against all persons except the King; and as to the Spititualties, he is full Parson by the Institution. (2.) Resolved, That admit the Church was not full by the Institution until Induction, yet the Dispensation came too late; for that the words of the Statute of 21 H. 8 of Pluralities are [ may purchase Licence to receive and keep two Benefices with Cure of Souls, ] and the words of Dispensation in this case, were recipere & retinere▪ and because by the Institution the Church was full, he could not purchase Licence to receive that which he had before, and he cannot retain that which he cannot receive.

(26.) In the case of a Prohibition it was Resolved, That by the Common Law before the Statute of 21 H. 8. the first Benefice was void without a Sentence Declarative, so as the Patron might present without notice. (2.) That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it. (3.) That the Queen might grant Dispensations as the Pope might, in case where the Archbishop had not Authority by the Statute of 25 H. 8. to grant Dispensations, because all the Authority of the Pope was given to the Crown by the Statute. But yet the Statute, as to those Dispensations which the Archbishop is to grant, hath Negative words, and the Bishop shall make the Instrument under his Seal.

CHAP. XXVII.

Of Deprivation.

• 1. What Deprivation is, and in what Court to be pronounced.
• 2. The Causes in Law of Deprivation.
• 3. In what Cases Deprivation ipso facto, without any Declaratory Sentence thereof, may be.
• 4. A Cardinal 's Case of Deprivation by reason of Miscreancy.
• 5. The Papal Deprivation by reason of Marriage.
• 6. What the Law is in point of Notice to the Patron, in case of Deprivation by reason of mere Laity or Nonage.
• 7. The difference of operation in Law between Malum prohibitum and Malum in se; and in what Cases of Deprivation Notice ought to be given to the Patron.
• 8. Deprivation by reason of Degradation; which Degradation at the Canon Law may be two ways.
• 9. Cawdry 's Case of Deprivation for Scandalous words against the Book of Common Prayer, sentenced by the High Commissioners.
• 10. Deprivation for Non-conformity to the Ecclesiastical Canons, by the High Commissioners, agreed to be good.
• 11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz.
• 12. Deprivation by the High Commissioners for Drunkenness.
• 13. The Church is not void by the Incumbents being Deprivable, without Deprivation.
• 14. For an Incumbent to declare his Assent to the Articles of Religion, so far as they agree with the Word of God, is not that unfeigned Assent which the Statute requires.
• 15. A Church becomes void presently upon not Reading the Articles, and there needs not any Deprivation in that Case.
• 16. A Case wherein a Sentence declaratorie for Restitution makes a Nullity in the Deprivation.
• 17. An Appeal from a Sentence of Deprivation, prevents the Church's being void pro tempore.
• 18. Upon Deprivation for mere Laity or Incapacity the Lay-Patron must have Notice ere the Lapse incurs against him.
• 19. An Incumbent Excommunicated, and so obstinately persisting 40 days, is Deprivable.

(1.) DEprivation is a discharge of the Incumbent of his Dignity or Ministry, upon sufficient cause against him conceived and proved▪ for by this he loseth the Name of his First Dignity, and that either by a particular Sentence in the Ecclesiastical Court, or by a general Sentence by some positive or Statute-Law of this Realm: So that Deprivation is an Ecclesiastical Sentence Declaratory, pronounced upon due proof in the Spiritual Court, whereby an Incumbent being legally discharged from Officiating in his Benefice with Cure, the Church pro tempore becomes void: So that it is in effect the Judicial incapacitating an Ecclesiastical person of holding or enjoying his Parsonage, Vicarage, or other Spiritual promotion or dignity, by an Act of the Ecclesiastical Law only in the Spiritual Court, grounded upon sufficient proof there of some Act or Defect of the Ecclesiastical person Deprived. This is one of the means whereby there comes an Avoidance of the Church, if such Sentence be not upon an Appeal repealed. The causes of this Deprivation by the Canon Law are many, whereof some only are practicable with us in the Ecclesiastical Laws of this Realm, and they only such as are consonant to the Statutes and Common Law of this Kingdom.

(2.) All the Causes of Deprivation may be reduced to these Three Heads: (1) Want of Capacity. (2) Contempt. (3) Crime. But more particularly, It is evident, that the more usual and more practicable Causes of this Deprivation are such as these, viz. a mere Laity or want of Holy Orders according to the Church of England, Illiterature or inability for discharge of that Sacred Function, Irreligion, gross Scandal, some heinous Crime, as Murder, Manslaughter, Perjury, Forgery, &c. Villany, Bastardy, Schism, Heresy, Miscreancy, Misbelief, Atheism, Simony, Illegal Plurality, Incorrigibleness and obstinate Disobedience to the approved Canons of the Church, as also to the Ordinary, Non-conformity, Refusal to use the Book of Common Prayer, or Administer the Sacraments in the order there prescribed; the use of other Rites or▪ Ceremonies, order, form, o • celebrating the same, or of other open and public Prayers; the preaching or publishing anything in derogation thereof, or depraving the same having formerly been convicted for the like offense the not Reading the Articles of Religion within Two months next after Induction, according to the Statute of 13 Eliz. cap. 12. The not Reading publicly and solemnly the Morning and Evening Prayers appointed for the same day according to the Book of Common Prayer, within Two month; next after Induction on the Lord's Day; the not openly and publicly declaring before the Congregation there Assembled his unfeigned assent and consent (after such Reading) to the use of all things therein contained, or in case of a lawful Impediment, then the not doing thereof within one month next after the removal of such Impediment ; a Conviction before the Ordinary of a willful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion, a persistance therein without revocation of his Error, or reaffirmance thereof after such Revocation ; likewise Incontinency, Drunkenness, and 40 days Excommunication: To all which might also be added Dilapidation, for it seems anciently to have been a Dilapidator was a just cause of Deprivation, whether it were by destroying the Timber-trees, or committing waste on the Woods of the Church-Lands, or by putting down or suffering to go to decay the Houses or Edifices belonging to the same ; as appears by Lyford 's Case , as also in the Bishop of Salisbury 's Case . Conviction of Perjury in the Spiritual Court according to the Ecclesiastical Laws, which although (as aforesaid) it be a just Cause of Deprivation, must yet be signified by the Ordinary to the Patron ; so also must that Deprivation, which is caused by an Incapacity of the party Instituted and Inducted for want of Holy Orders .

(3.) By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls, value 8 l. per ann. take another with Cure, immediately after Induction thereunto, the former is void, and void without any Declaratory Sentence of Deprivation in the Ecclesiastical Court, in case the Second Benefice were taken without a Dispensation; and of such Avoidance the Patron is to take notice at his peril . And as Avoidance may be by Plurality of Benefices incompatible, without Dispensation: so also by not Subscribing unto, and not reading the 39 Articles (as aforesaid) which by the Statute of 13 Eliz. c. 12. is a Deprivation ipso facto, as if the Incumbent were naturally dead▪ insomuch that upon such Avoidance there need not any Sentence Declaratory of his Deprivation, but the very pleading and proof of his not Reading the said Articles, is a sufficient Barr to his claim of Tithes, without any mentioning at all his being deprived in the Ecclesiastical Court . Yet Sir Simon Degge in his Parsons Counselor putting the Question, What shall be intended by the words [Deprived ipso facto, ] as whether the Church shall thereby immediately become void by the Fact done, or not till Conviction or Sentence Declaratory? modestly waives his own Opinion, and says it is a Quaere made by Dyer, what shall be intended by the words [ ipso facto Excommunicate] for striking with a Weapon in the Church-yard , albeit by the Canon Law, which condemns no man before he be heard, requiritur sententia Declatoria .

(4.) Touching Deprivation by reason of Miscreancy, the Cardinal, who by the Bishop of Durham was Collated to a Benefice with Cure, is (it seems) the standing President; in which case it was Agreed, that notwithstanding the Cardinal's being deprived for his Miscreancy in the Court of Rome, yet whether he were Miscreant or not, should be tried in England by the Bishop of that Diocese where the Church was .

(5.) Among the many Causes of Deprivation forementioned you do not find that of Marriage in the Priest, which was anciently practicable, as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Mary's days, partly because he was a Married person, and partly because of his Religion, was restored again in the time of Queen Elizabeth. In whose Case it was Adjudged, That his Deprivation was good until it was voided by a Sentence of Repeal, whereby he became Incumbent again by virtue of his First Presentation without any new Presentation, Institution, or Induction . In those days it was held, That the Marriage of a Priest was a sufficient cause to deprive him of his Benefice. Mich. 4. Ma. Dy. 133.

(6.) In the Case where a mere Lay-man is Presented, Instituted, and Inducted, he is (notwithstanding his Laity) such an Incumbent de facto, that he is not Deprivable but by a Sentence in the Ecclesiastical Court; but then the Ordinary is in that case to give Notice of such Deprivation to the Patron; otherwise, in case the Ordinary for that cause refused him, when he was Presented by the Patron . But where Non-age is the cause of Deprivation, as when one under the age of 23 years is Presented, Notice is to be given, it having been Adjudged, That no Lapse shall incur upon any Deprivation ipso facto without Notice, seeing the Statute of 13 Eliz. 12. says nothing of Presentation; which remaining in force, the Patron ought to have Notice .

(7.) As in the Admission of a Clerk to a Benefice whatever is a Legal impediment, will also be a sufficient cause of Deprivation: so in reference to both, the Law takes care to distinguish between that which is only Malum prohibitum, and that which is Malum in se; and therefore doth not hold the former of them, such as frequenting of Taverns, unlawful Gaming, or the like, to be a sufficient cause of a Clerks Non-admission to a Benefice, or of his Deprivation being Admitted : Otherwise, if you can affect him with that which is Malum in se; in which case Notice is to be given the Patron by the Ordinary, of the Cause of his Refusal or Deprivation ; as also it is in case of Deprivation for not Subscribing or not Reading the 39 Articles of Religion according to the foresaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular, a general Notice of Incapacity not sufficing; in which case an Intimation of such particular Incapacity affixed on the Church-door (if the Patron be in partibus longe remotis, or may not easily be affected therewith) will answer the Law. Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. & 16 Eliz. Dyer. 327. & Co. par. 6. 29. Green 's Case.

(8.) It is evident from the Premises, That a Deprivation from an Ecclesiastical Benefice will follow upon a Disgrading or Degradation from the Ecclesiastical Function or Calling, for this Degradation is the Incapacitating of a Clerk for discharge of that holy Function, for it is the punishment of such a Clerk, as being delivered to his Ordinary, cannot purge himself of the Offence, whereof he was convicted by the Jury: And it is a Privation of him from those holy Orders of Clerkship which formerly he had, as Priesthood, Deaconship, &c. . And by the Canon Law this may be done Two ways, either Summarily, as by Word only; or Solemnly, as by devesting the party degraded of those Ornaments and Rites, which were the Ensigns of his Order or Degree . But in matters Criminal Princes anciently have had such a tender respect for the Clergy, and for the credit of the whole profession thereof, That if any man among them committed anything worthy of death or open shame, he was not first executed or exposed to Public disgrace, until he had been degraded by the Bishop and his Clergy; and so was executed and put to shame, not as a Clerk, but as a Lay-Malefactor; which regard towards Ecclesiastics in respect of the dignity of the Ministry, is observed by a Learned Author to be much more Ancient, than any Papistical Immunity ; and is such a Privilege as the Church, in respect of such as once waited on the Altar, hath in all Ages been honored with.

(9.) Robert Cawdry Clerk, Rector of the Church of L. was deprived of his Rectory by the Bishop of London and his Collegues, by virtue of the high Commission to them and others directed, because he had pronounced and uttered slanderous and contumelious words against and in depravation of the Book of Common Prayer; but the Form of the Sentence was, That the said Bishop by and with the assent and consent of Five others of the said Commissioners his Companions, and namely which Deprived him. It was not sound that the Commissioners were the Natural born Subjects of the Queen, as the Statute Enacts that they should be. And it was moved, That the Deprivation was void; (1) Because, that whereas the Commission is to them, or any Three of them, of which the said Bishop to be one amongst others, it ought to have been the Sentence of them all (according to the Authority given to them, which is equal) and not of one with the assent of the other. (2) Because it is not found, that the Commissioners are the Natural born Subjects of the Queen, as by the words of the Statute they should be. (3.) Because the punishment, which the Statute provides for those of the Ministry which deprave this Book, is to lose the profits of all their Spiritual promotions but for a year, and to be Imprisoned by the space of Six months, and not to be Deprived till the Second offense, after that he had been once committed; and therefore to deprive him for the First offense was wrongful and contrary to the Statute. But the whole Court, for the Form of the Deprivation, it is that which is used in the Ecclesiastical Courts, which always names the chief in Commission, that are present at the beginning of the Sentence, and for the other they mention them only as here; but of their assent and consent to it, and in such cases we ought to give credit to their Form, and therefore it is not to be compared to an Authority given at Common Law by Commission. And it is to be intended, that the Commissioners were the Natural born Subjects of the Queen, unless the contrary appear: But here at the beginning it is found, That the Queen Secundum tenorem & effectum Actus praedict. had granted her Commission to them in causis Ecclesiasticis, and therefore it appeareth sufficiently, that they were such as the Statute wills them to be. And for the Deprivation, they all agreed that it was good, being done by Authority of the Commission; for the Statute is to be understood, where they prosecute upon the Statute by way of Indictment, and not to restrain the Ecclesiastical Jurisdiction, being also but in the Affirmative. And further, by the Act and their Commission they may proceed according to their discretion to punish the Offence proved or confessed before them, and so are the words of their Commission warranted by the Clause of the Act. And further, the Ecclesiastical Jurisdiction is saved in the Act. And all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this Clause in the Act. Vid. Hill. 33 Eliz. Rot. 315. .

(10.) Before many Noble-men, Archbishops and Bishops, and the Justices and Barons of the Exchequer, (1) agreed, That the Deprivation of Minsters for Non-conformity to the last Canons was lawful by the High Commissioners: For by the Common Law the King hath such a power in Causes Ecclesiastical; and it is not a thing de novo, given by the First of Eliz. For that is Declaratory only, &c. and the King may delegate it to Commissioners: And the King without a Parliament may make Constitutions for the Government of the Clergy: and that such a Deprivation ex officio, without Libel, is good. (2.) That the Statute of 5 H. 5. c. 4. is to be intended, when they proceed upon Libel, and not when ex officio, Read the Statute. (3.) When their Petition is Subscribed by a great number, with intimation, That if the King denies their Suit, that many thousands of his Subjects shall be discontented; That this is an Offence Finable at discretion, and is near to Treason, by raising Sedition by Discontent, &c. . Vid. More 's Rep. Trin. 2 Jac. in the Star-Chamber.

(11.) By the Statute of 13 Eliz. cap. 12. it is Enacted, That every person, &c. to be Admitted to a Benefice with Cure, except that within Two months after his Induction, he publicly Read the said Articles in the same Church whereof he shall have Cure, in the time of Common Prayer there, with declaration of his unfeigned assent thereto, &c. shall be upon every such default ipso facto immediately deprived. Then follows afterwards a Proviso relating to this clause, viz. Provided always, That no Title to confer or Present by Lapse, shall accrue upon any Deprivation ipso facto, but after Six months after Notice of such Deprivation given by the Ordinary to the Patron. Thus the Patron immediately upon such Deprivation may Present, if he please, and his Clerk ought to be Admitted and Instituted; but if he doth not, no Lapse incurs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary, who it seems is to supply the Cure until the Patron Present. In the last Case of the Lord Dyer 23 El. it was Resolved, That where a man having a Living with Cure under value, accepted another under value also, having no Qualification or Dispensation, and was Admitted, Instituted and Inducted into the Second, but never Subscribed the Articles before the Ordinary, as the Statute of 13 of El. requires. Upon Question, whether the First Living vacavit per mortem of him or not? the Court Resolved, That the First Living became vacant by his death, and not by accepting the Second, because he was never Incumbent of the Second, for not Subscribing the Articles before the Ordinary, whereby his Admission, Institution, and Induction into the Second Living became void, as if they had never been. This differs from the Case of not Reading the Articles within Two months after Induction: For the not Subscribing the Articles makes, that he never was Incumbent of the Second Living, and consequently no cause of losing the First; but the not Reading the Articles within Two months after Induction, doth cause a deprivation of that whereof he was Incumbent. For as an Incumbent, that without qualification or dispensation doth take a Second Living, doth thereby lose the First: so the same Incumbent for not Reading the Articles within Two months after his Induction into the Second may lose the Second, and thereby lose both, viz. the First by taking a Second without qualification or dispensation, and the Second for not Reading the Articles, as aforesaid, whereof he was Compleat Incumbent by Admission, Institution, and Induction of the Second Living full Two months before he lost it for not Reading the Articles .

(12.) Parker, being Parson of a Church was deprived by the High Commissioners for Drunkenness, and moved for a Prohibition, but it was not granted; and he was directed to have Action for the Tithe, and upon that the validity of the Sentence shall be drawn in question. If a man be Admitted, Instituted, and Inducted to a Church, and afterwards is deprived for that he was Instituted contrary to the course of the Ecclesiastical Law, such Sentence of deprivation is void at the Common Law, for that it is as a Lay-Fee by the Induction . If a Town erect a Common School, and allow Maintenance to the Schoolmaster, the Bishop may not remove him and put in another at his pleasure: But if he be a Recusant, he may remove him by the Statute of 23 Eliz. cap. 1. .

(13.) Although an Incumbent be deprivable, yet the Patron cannot Present another until he be deprived, for till then the Church is not void. Also if the Visitor by the Kings Command return into Chancery good matter for deprivation of the King's Clerk, yet the King cannot Present another to the Church, until he be deprived. Contra 17 E. 3. 59. b. .

(14.) Where Two Incumbents were of one Church, one sued the other in the Ecclesiastical Court to be deprived for not Reading the Articles, and giving his Assent to them according to the Statute of 13 Eliz. The issue was, whether he gave his Assent, the Jury found he read the Articles, and said, I give my assent to them as far as they agree with the Word of God: And it was Adjudged, That it is not such an unfeigned Assent as is within the intent of the Statute .

(15.) In a Prohibition the Case was, J. S. seized in Fee of the Advowson of the Church of C. Presented thereunto D. who was Instituted and Inducted, but did not read the Articles according to the Statute of 13 Eliz. Afterwards came the General Pardon of 18 Eliz. Afterwards D. was deprived by Sentence for not Reading the Articles; he Appealed, and depending the Appeal B. the Plaintiff obtained a Presentation from the Queen, and was Instituted and Inducted. D. died, and he that had the Advowson Presented R. the other Defendant, who sued in the Ecclesiastical Court to be Admitted. It was Resolved, That the Church became void presently by the not Reading of the Articles, and there needed not any Deprivation, and the Pardon in this case works nothing; for the Church being once void for not Reading the Articles, he cannot by the Pardon be restored, and the Pardon will not reach to it; for the punishment is to lose his Benefice: Adjudged, the Prohibition to stand . But if a man be deprived for an offense done Tempore Parliamenti, and the Offence be after pardoned by the same Parliament, and then the Parliament endeth. In this case the Deprivation is void in itself, and the party need not sue to reverse it; for the Parliament relateth to the First day thereof: As was Resolved in Fox 's Case .

(16.) In a Quare Impedit the Case was, That L. had Two Presentations, and W. the Third, of Inheritance perpetual: L. Presented P. who was Instituted and Inducted, and afterwards in the time of Queen Mary was deprived, because a Married man; wherefore he again Presented D. who was Inducted. Afterwards P. was restored, with Declaration that he had good Title: Afterwards P. died, W. Presented H. L. brought the Quare Impedit. It was Adjudged for the Plaintiff, because the Sentence declaratory for the Restitution made a Nullity in the Deprivation, and so avoided the Incumbency of D. and so L. had good Title to Present at his Second Turn, and W. had no Title to Present as yet .

(17.) In Hornigold 's Case against Brian it was said, That if a Judgment of Deprivation be given in the Ecclesiastical Court, against a Parson for his Benefice; if presently upon this Judgment he makes his Appeal, the Church is not void, but he remains Parson during all the time of this Appeal; for if by this he doth reverse the Judgment, he shall need no new Institution and Induction: As if a Judgment be given of a Divorce in the Ecclesiastical Court; and this is after reversed by an Appeal, there shall need no new Marriage. And in this Case Coke Chief Justice said, That 39 E. 3. hath the same Case: And that if an Appeal be from a Sentence of Divorce, they are now by this Baron and Feme again: So if a Parson be deprived, and Appeals, he is by this Parson again, and may have an Action of Trespass. And as touching Appeals in reference to Deprivation, there was a famous Case in the Court of C. B. about 5 or 6 Jac. a Worcestershire Case, between Lechmere Plaintiff and Carr Defendant, in an Action of Trespass, and upon Non Culp. pleaded, a Special Verdict was found, viz. That Bonner was made Bishop of London, in the time of King H. 8. and so continued until 2 Ed. 6. at or about which time a Commission issued forth to the then Lord Chancellor and others, to Convent Bishop Bonner before them, and to examine him; and if they found him to be Contumacious, and would not Answer them, the Commissioners were impowerd then to Imprison him, or to Deprive him: The Commissioners upon this did first Imprison him, and afterwards proceeded further against him, to Deprivation: Bonner from this Appealeth (and his Appeal not heard) Nicholas Ridley is made Bishop of London, who makes a Lease of the Park and Manor of Bushley, under which Lease the Defendant claimed. Afterwards, viz. Primo Mariae, Ridley is declared to be an Usurper, and Bonner by a Sentence Definitive is restored again to the Bishopric of London, and makes a Lease of the Premises demised to the Plaintiff. Upon which Special Verdict the Points stirred were these: (1) Whether the Deprivation of Bonner was lawful or not; the Authority by the Commission being in the Disjunctive, viz. to Imprison or to Deprive him; and (as it was urged) they first Imprisoning of him, had thereby executed their Authority, and so then the Deprivation void. (2) Admitting the Deprivation void, then Bonner still continued Bishop of London: And then Ridley was never Bishop; for that there could not be two Bishops of London simul & semel, and so the Lease by him made to the Defendant was a void Lease. (3) Admitting the Deprivation good, then Quid operatur by the Appeal, whether it did not suspend the Sentence of Deprivation: And if so, then again, Ridley was no lawful Bishop; and so the Lease, under which the Defendant claimed, was void. This Case was Learnedly Argued by Common Lawyers, and also by Civilians, and the Judges inclined to be of Opinion for the Plaintiff. But the Defendant perceiving this, preferred his Bill in Chancery, and there obtained a Decree against Lechmere.

(18.) If a mere Lay-person, who is altogether incapable of a Benefice, be Presented, Instituted, and Inducted; yet the Church is not therefore said by the Common Law to be void, as if no Presentation had been, but is still by that Law full of an Incumbent de facto, licet non de jure, until by Sentence Declaratory in the Ecclesiastical Court for want of Capacity the Church be Adjudged void; and upon this no Lapse shall incur against the Lay-Patron, without Notice (of such Incapacity and Sentence of Deprivation thereupon) to him given. King H. 4. Presented one that was Incapable of his Presentation, and the Presentee was thereby Admitted, Instituted, and Inducted, and afterward the Pope enabled the Presentee by his Bull; yet the King had a Scire facias, and thereby recovered his Presentation again, because the Incumbent was not capable when he was Presented.

(19.) If the Parson or other Incumbent be Excommunicate, and he so remaineth in his Obstinacy for the space of 40 days, he is for this deprivable of his Benefice, and yet the Church is not void in Deed, without Sentence of Deprivation given against him; and if before such Deprivation, the King as Supreme Ordinary grant him a Dispensation, he shall hold his Benefice. Also Dilapidation, or spoil of the Church Benefice hath at Common Law been held worthy of Deprivation; which Law as it adjudgeth not the Church actually void (Death excepted) without a Sentence of Deprivation: So though such Sentence of Deprivation be merely wrongful, yet by that Law, as well as by the Canon, the Dignity is void, and the Sentence remaineth in force until it be reversed by Appeal; and therefore if the party deprived within due time Appeal (upon such Sentence of Deprivation given against him) such is the nature thereof, that it will hold the Sentence (upon which it was first brought) in suspense: so that if it be brought upon Deprivation, it voideth the vigor thereof, and reviveth the former dignity; for such Church shall not be void until the first Sentence of Deprivation happen to be affirmed in the Appeal. Touching