both but before the jure patronatus awarded if it had bin his chance to have taken the wrong clark and have refused the other which had right the Bishop had then been a disturber quod nota pro different But here is a speciall verdict which in judgment of the Law is found for him that hath right Then whether the Bishop at his perill ought to take notice of the Law in this case I hold it very disputable But yet because he is Judge in that case I doe think it is at his perill to know the Law and to present a right person upon the penalty of being a disturber And I have observed it in all enquiries of office a verdict at large might be given by the Jury super veritatem facti as in a Mandamus Diem clausit extremum and so in this case For here be no issues joyned as in oother Tryalls be for there the verdict must be according to the point of the issue but in commissions awarded ex officio the enquiry may be and ought to be as large and speciall as the commission is But whether the particular finding of the disabilities of the Clarkes by the Jury be within the said five points of the commission is now to be handled And therefore first concerning the clark of Monsieur Avidus where the Jury findes he had a former Benefice whether that be a sufficient cause to disable the Clark or not I find by 14 H. 7. fol. 28. that it is no sufficient cause for the Bishop to refuse the clark because he had a former Benefice yet it appeares in Hollands case and in 10. E. 3. 1. Parnings opinion that by the acceptance of a second Benefice the Clark may be deprived of both by the spirituall Law And then in Spâ—cots case in Seigniour Cookes 5. rep. fol. 58. It was resolved that in all cases which be sufficient causes to deprive a clark they be sufficient for the Bishop to refuse the clark So that ex consequenti It followes that if it be a sufficient cause of deprivation because the clark had a former Benefice then by Specots case it a good cause of refusall And this is within the 5th Article de idonitate personarum inquiorable by the said commission But for my own opinion if that Monsieur Avidus had right to the presentment I should have held the having of a former Benefice to be a sufficient cause to refuse his clark because at the least the clark is deprivable for it for the last Benefice if not for the first also and even as one which hath a wife and taketh a second he is by the Law to be divorced from them I doe not in any sort beare with pluralities but because it is against the Law civill I therefore would gladly be resolved by some honest single-beneficed Divine whether it be not in some sort against the Law of God and then I should more resolutely have delivered my opinion against him But to passe this matter over I must now enter into the causes which be and be not in Law sufficient to refuse a clark presented If a clark be criminosus then he may be refused as if he be prejured as it appeares in 38. E. 3. 3. although he were not convict of the offence quod dubito because in that case he confessed himselfe to be perjured before the Bishop upon his examination which was in effect a conviction being in a cause Ecclesiasticall wherein the Bishop was Judge Occasion of a man is a cause to refuse a clark for that is crimen by the same booke by Hollands case in the fourth Rep. of Seigniour Cooke Bastardy Villeinage and Nonage be causes to refuse a clark and herewithall agreeth 5. H. 7. 19. Keblâ— in Specots case aforesaid If the presented be a Schhismatick it is a sufficient cause to refuse the clark And I have observed that the difference between a Schismatick and an Heretick is this that a Schismatick differs from us in manner the Heretick in matter of Religion To refuse an Heretick or a Papisticall clark in my opinion be sufficient causes For for these offences the clark is deprivable So is nonability a sufficient cause and to be illiterate by 5. R. 2. and Specots case For the Statute of Articuli Cleri cap. 13. is que idonitatem presentati ad beneficium pertinet ad Iudicem Ecclesiasticum ut propter defectum scientie aliarum causarum rationabilium So that Sir Ignoramus is disabled by Act of Parliament and he being found by a Jury of clarks to be egregie illiteratus I shall so hold him still till he shall improve his Learning better In little Broke fol. 114. I find a case that where a man is attaint of Heresie or that he is a Jew or Turke he cannot have his clergie wherein I doe conclude that these be sufficient causes to refuse a clark But I doe not mean to include Sir Ignoramus in that case to make it questionable whether he could have his clergy because as I have heard the grand Inquest already at Newgate did in favorem inscientie sue grant him the benefit of his name and indorsed upon the indictment Ignoramus and so was discharged But to proceed in 9. Eliz. in Dyer a Bishop refused a clark for that he was a haunter of Tavernes and unlawfull games and was taken for a disturber yet I shall never commend that Patron that shall make choice of a drunken clark I hold it a sufficient cause to refuse a clark which hath committed Simony because the Apostles Peter and Paul pronounced sentence and in the 8th of Acts against that offence and the offender therein So that my opinion concerning B. and Sir Ignoramus two of the conformed clarks doth appeare But now the matter of greater difficulty is whether the offence in the woman Patronesse because she was a Schismaticke were a good cause to refuse her clark or not For although she was to be censured an ill member of the church yet if her clark were a competent person as he was for ought that appeareth to the contrary in my case I then doe think that the Bishop could in no sort justly refuse him But I am of opinion that in some cases the offence of the Patron shall be a cause sufficient to refuse his clark as in 15. H. 7. where the Bishop refused the clark because the Patron was excommunicate and had so remained forty dayes For there by the Law no man under paine of Excommunication could communicate with him But I am of opinion that in cases where the Patron is disabled in the point of Patronage that there his clarke may be refused As if he be outlawed for then the King ought to have the Presentment So where three joyntenants be and they vary in presentment here the parties have not presented according to their interest and therefore the Bishop may
rebus spirituabitus and made him capable thereof 5ly Instaltation and inthronization by the which he was intituled to the temporalties of his Bishoprick and thereby was enabled to sue the same out of the Kings hands by the which it appeareth that till consecration he is not capable of the spiritualities and then Ex consequenti it followes that all the said patrons were mistaken to present their clarks to the wrong Ordinary and the Bishop Elect was somewhat too hasty to take upon him power in those cases to play the part of a perfect Ordinary before he was a consecrated Bishop And for the case put in Fitzh. Nat. Br. Fol. 2. E. which is That if in temps of vacation and after such time as there is a Bishop elect a man have cause to sue a writ of right he may have it directed to the bailiffs of the elect Bishop which I doe not think to be law under favour of that Book because till he be installed he hath no possession of his temporalties nor then neither till he have sued the same out of the Kings hands as by common experience is manifest And the suing of a writ of right concernes his temporall estate and it appeares in Fitzh. Nat. Br. Fol. 169 that till a Bishop be sacred he cannot have a writ De restitutione temporalium And therefore before then I suppose he hath not any power in his temporalities nor in the spiritualities till his consecration be finished And by 21 E. 3. 39. and 40. That from the consecration the Bishop shall have his temporalities and not before and from thence he shal in writs and commissions be named Bishop and before he shal only be named the Elect Bishop Notwithstanding In case in Co. 8. Trollopps case 69. it is said that a Bishop Elect before he be sacred may certify an excommunication which may be law because the certification is only a ministeriall act but I suppose he cannot pronounce sentance of excommunication which is a juditiall act For therein it is requisite he should be a Bishop sacred though not inthorized So that now that I have destroyed the title of Monsieur Avidus because I hold the advowson passed away to the grauntee Sir Symon Magus and hereby also the pretended title of the University falls to the ground because the Graunt was made before the Grauntor became a Recusant when he stood Rectus in Ecclesia and the title of the Feme was not sufficient to vest this avoydance in her because it fell in the life time of her husband and so was lawfully passed away to the Grauntee and the title of the King failes in point of Simony and that Sir Symon presented to a wrong person because the Bishop was not sacred and if it were made to a right Bishop yet the church was litigious and so remained 6 moneths and that the lapse could not apperteine to the Bishop elect for the causes and reasons aforesaid Therefore it appeares that not any of the persons in the case have right to the said presentment Then Now for the conclusion of my last point It comes most fitly to be shewen what person hath the best right thereunto And that I hold is the garden of the spiritualities which most commonly is the Dean and Chapter during the vacancy of the Bishoprick because the Bishop is to present by Lapss ratione Spiritualium But If a Bishop have an Advowson belonging to a Mannour or to his temporalities which voydeth during the vacancy there the King shall have the presentation for that comes to him ratione temporalium as it appeareth in Fitzh Nat. Br. fol. 34. K. 44. E. 3. 3. 50. E. 3. 25. which be in the Kings hands But in 31 H. fol. 16 during the vacancy of a Bishop the garden of the spiritualities shall have the spiritualities and he shall have the lapse to whom the presentment ought to be made which is The garden of the spiritualties And so I do conclude against all the said parties and am of opinion that the garden of the spiritualities ought to have the presentment of the Church hac vice by the lapse Finis Fustis Funis Sir JGNORAMVS 1 Point Bracton Plow Coâ—â— 170. Cook rep. 6. 8. H. 7. Paâ—k 44. B. 3. 8. H. 7. 33. H. 8. 35. H. 8. Sir Moyâ—â— Finches Câ—se 33. and 35 H. 8. Morices Case Curles case 3. E. 4. Dyer Fol. 9. E. 4. 26. H. 8 4 12. H. 4. 9. E. 4. 2. E. 2. Perkins 9 E 4. Finches 2 point 33. H. 8. Dyer Fol. 43. 44. E. 3 Fâ—tz H Impt. Q 137. 1 6. E. 3. Fitz. Q. Impr. 44. 9 E 2 Fitz Bre. 844 17. E 3. 2. H. 7. 4. Stamfords prerog. 43 â— Point 2 H 7 â— H. 6. 3 2 Eliz Dyer 168 Dyer 32 3 Dyer 194 4 Point 1 2 H 7. 2 10 H 7 3. 3 E 1. 4 Lâ—â—don Custome 7. H. 6 9. H. 6. 50. H. 3 43. E. 3. 21. R. 2. 3. H. 6. 43. E 3. â— Point 21 H 8. K. Jâ—â— C 〈…〉 Le case de Sir Chris Hatton 〈…〉 The case of Sr Fra Englefield F. â— 8. 8 Eliz Dyer 252. 1 E. 6. 6. Point 22 H. 6. 33 H. 6 32 H. 6 34 H. 6 21 H. 6 14 H. 7 Hollands case Co. 4. 10. E. 3. Spâ—cots case Fitzh N. b. fol. 34. l. 38. E. 3. 3. Hollands case 5. H. 7. 5. R. 2. 〈◊〉 case 114. 9 Eliz. 8 Acts 15 H. 7. 3 H. 5. 3. 14 H. 6. 56 5. H. 7. 22. H. 6. 13. H. 7. 25. E. 3 26. Ass 35. H. 6. Specots casc 9. Eliz Dyer 39 E. 3. 40. E 3â— 20. 5. â— 2. 38. E. 3 22. H. 6. 34. H. 6. 8 Point 31. Eliz. 9. Point F. N. B. 2. F. N. B. 169. 21. E. 3. 10 point F. N. B. 34. 44. E. 3. 3. 50. E. 3. 25 〈…〉 H. 6. 10
sometims he casts outsome fo his fome prohibitions which be Fulmina Jovis or rather Fulmina Regis to repress the greedy appetites of such of the coveting prelacy as cannot content themselves with their old duties and customes But let all this confused Chaos of non ordered persons sleep a while and dream of some metamorphosis to change them from their severall Leprosies while I passe into the argument of the fifth point of my case and that is whether the University of Cambridge have title to the Church to present hac vice by the Statute of 3. Ia. R. For if the Law prove so then it will make well for their Clark Sir Ignoramus according to the old Proverb The more foole the better lucke But I am of opinion that the University hath no right by the said Statute for it doth differ much from the Universitie of Oxford in my Lord Cookes Xth rep For there in that case although the grant of the next avoydance was made before the conviction of the Grauntor Yet it was after such time as he became a Recusant and also the church became voyd after the conviction But in my case the Church became voyd before the Grauntor became a Recusant when he stood rectus in Ecclesia and he presented his Clarke to the said Church when he stood cleare before he was spottâ—d with any irreligious quality and after presentment the Clarke had that interest in the Church against his Patron that the Patron could not revoke or repeale his presentation as it appearâ— the cases of 12. Elizabeth Dyer fol. 292. and 18. Eliz. 348. and Fitz. Nat. br fol. 34. and some other bookes And although the Patron after became a Recusant and was convict yet that doth not vitiate the presentment which he made in pura vita â—â—â—a For if a good Protestant grant the next avoydance to a Church and after become a Recusant yet that shall not avoyd the Grauntee of his Interest which was made when the Grauntors was cleere and voyd of that Leprosie contrary it is if the Grauntor were a Recusant when he made the grant though he was not convicted til after for after the conviction the forfeiture of the statute had a reach back to the Commencement of his offence which was when he first became a Recusant But now I shall put you a short case which falls between the Lord Cookes case and mine and that is If one become a Recusant and then grant the next avoydance to a Church and after is indicted for a Recusant but the indictment extends in time after the grant of the avoydance I might make some question whether the grant of the avoydance should be avoyded And I think it shall and the University should have the presentment in that case but the forfeiture of xxl. a moneth were cleer in the case out of the Statute For admitting he were a Recusant foure months and he is indicted but for the 3 last months the King cannot not have xxl. for the fourth moneth not found in the indictment The case of Sir Christopher Hatton might be strongly urged against me which is that Sir Christopher became Officer to Queen Elizabeth in Anno xx of her Raign and he owed nothing quo anno he purchased land and then conveyed the land away bona fide when he stood cleare and unindebted and long after in the 32. yeare of Queen Elizabeth he became indebted and not before yet that land or Lease conveyed away stood chargable with the debt which case I grant because he became accomptant when he first became Officer and although the grew not indebted till after yet the cause the Land was bound was when he first became an Officer but if before he became an Officer he had passed away any Lands or made away any Leases those Lands or Leases should not be charged And so is the Law and Reason in my case that because the Church fell voyd when the Patron was not any Recusant and the presentment was then also made that is the cause the Statute never could take hold of this presentment but if as in the Lord Cookes said case he had been a Recusant when the Church became first voyd or before he had presented then I think it would have vested in the University and Sir Ignoramus had had a faire pull at it But seeing the presentment which Monsieur Avidus made saved the Church for the time yet considering the Clarke was after refused by the elect whether now the University shall have the presentment or not is the question If the Patron Recusant could have repealed his presentment then the question will arise whether the same shall be trasferred over to the University by the said Statute of tertio Iacobi or not And as I have formerly said so I hold still that the Patron could not repeale or call back his presentation For it is more then a meer power that he gives to the Clarke for it is an interest for his preferment especially being made to the party self I grant the case of 1. E. 5. fol. 〈…〉 where one delivers money to I. S. to pay to I. D. Or where I deliver a horse to I. S. to deliver to I. D. The money in the one case and the horse in the other may be countermaunded before they be payed or delivered over to the party because the Bayliffe is but my servant in these cases Bat put the case a little further that I give a horse to I. S. to the use of I. D. or I enter into an obligation to the use of another here because I make the Byaliffe a party I cannot in these cases make any countermaund of the things delivered So because in the principall case in question the Clark hath a kinde of interest in the Church by the presentation In that respect thâ—refore it cannot be repealed by the Patron Yet on the otherside I am of opinion that if I have the nomination of a Clark and I. S. the presentation of him that I may repeale my nomination for I. S. is in this case but meerly my servant to present my Clark to the Bishop And I am of opinion also that if the Patron Monsieur Avidus could have recalled his presentation that then that power had been transferred over to the University by the said Statute In the argument of which said point I may aptly put the case of Sir Francis Englefeild in Cookes 7. Rep. where not only the condition but also the performance of it was transferred over by Act of Parliament to the King because the party might have taken advantage and benefit of it himselfe and therefore the same advantage by the Statute was transferred over to the King wherein also I take a difference between that case and the case in Fitz. N. Br. fol. â—â— 8. I. That an assignee cannot have a writ of admeasurement of dower where the woman dowager had more assigned to
refuse their clarkes So I take it if I. S. present and it appeare to the Bishop that he have no right to the presentment The Bishop may refuse his clark And because this kind of Learning comes oft in practice and yet is difficult I shall therefore set down two or three cases to instruct a Bishop now and then how to get a laps by a straine of wit For I am of opinion at this time that if the Presentor have no right the Bishop may refuse his Clarke and in a quare impedit he may well excuse himselfe and may in some sort plead in chiefe to the right of the patronage And this opinion I doe both gather and maintaine by the cases ensuing and that is by 5. H. 7. fol. 34. where in a quare impedit brought against the Bishop the plaintiffe declared that he was seized of the advowson in Fee and presented on E. who was received instituted and inducted and that after the church became voyd by the death of E. and remained voyd by the space of 6. moneths and the defendant collated C. who was inducted thereunto and after the said church became voyd by the death of C. And that therefore now it appertaines to him to present and the defendant did disturb him The defendant pleaded that one I. S. did present the said C. unto him as ordinary and he did admit him and he was instituted and inducted into the church at the presentment of the same I. S. and traversed Absque hoc that C. was collated by him And this plea by the better opinion of the booke was good and yet it doth entitle I. S. by the presentment which was by disturbance and did disable the Plaintiffe thereby And thus the plaintiffe is disabled by the plea of the Bishop in point of right And In 22. H. 6 fol. 28. Sir Iohn Denhams case which is that one brought a Quare imp against the Bishop and one R. Chanon of St. Needs and declared that W. his Father was seised in fee of the Mannor of Hatland to the which the advowson of the Abbathy of St. Needs was appendent and that the Abby voyded by the death of A. and his Father presented B. who was admitted instituted and inducted at his presentation and that his Father dyed whereby the mannour and advowson descended to the Plaintiffe as next Heire and that the Abbey became void by the death of B. and so it belongs to him to present and he presented his covenable Clark to the Bishop defendent and he refused him The Bishop pleaded that the Abby of Saint Needs time out of memory had been a House of Abbot Prior and covent and that the Prior and covent have used when the Abbey became void to elect one to be Abbot and to present him to the Bishop and if he found him a covenable clark then he received him and caused him to be installed And he said that the Abbey became void and the Prior and Covent did elect the other defendant and presented him to the Defendant the Bishop and he found him covenable by reason whereof he admitted of him and caused him to be installed and so claimeth nothing but as Ordinary and by the direction of the Court he traversed the appendancy which is an excellent case for my purpose For hereby it appeares that the Bishop pleaded an Issuable plea to the Droit of the church And there is another case in 13. H. 7. fol the 18. where the Lord Hastings and the Lady Mary his Wife brought a quare Imp. against Sir Walter Hungerford and declared how Mompesson and others were seized of the advowson in grosse to the use of the Plaintiffs and they being so thereof seized graunted the Adowson to R. who regraunted the same to them and shewes a presentment and that the church became void c. now apperteineth for them to present and they presented their Clark And the Bishop one of the Defendants refused to rereceive him The patron the Bishop and the Incumbent joyned in a plea and pleaded and set forth that Mompesson and his other co-Feoffees were and stood seized of the Advowson to the use of Sir Walter Hungerford one of the Defendants and of his Heires Males of his bodie and he presented Absque hoc that the said Mompesson and other his Co-feoffees were seized to the use of the Plaintiffs which Plea no doubt was a good Plea for the Patron and also for the inducted incumbent since the statute of 25. E. 3. Cap. 7. And I suppose that the Ordinary hath such an interest in the Church as that he may also plead thereunto For as it appeares the Patron and Ordinary in the vacancy may actually charge the church with a perpetuall rent-charg but not with annuity as I take it And althoughsome have held before me that he shall be but in case as a dissei for which can plead no plea to the tenancy as 26. Assis. 49. and 35 H. 6. 13. is The reason there is because he is taken in the Law to have no interest in the tennancy but an Ordinary surely hath some interest in the Church considering he and the Patron may charg the Church in the time of Uacation and he shall set Clark therein if a lapss come yet I am of opinion that if I. S. disseise I. D. of a Mannour to the which the Advowson of L. is belonging that if I. S. present to that Church the Bishop cannot upon penalty to be taken a disturber refuse the Clarke of I. S. unlesse that I D. doe also present for then he ought to receive his Clarke and my reason is because I. S. had right to the Advowson against all others but against the Disseisee by reason of the possession which is sufficient to close the hands of the Ordinary These cases I have put purposely to maintain the title of the Bishop because I hold that the refusall of the Clarke of the Feme Schismatique is not any sufficient cause but that she failed in point of right which by these cases is proved that the Ordinary might plead and justifie against her But to proceed a little further in this learning It is requisite for me to declare how and in what manner these causes of refusals ought to be shewen by the Bishop and how and before whom they shal be tryed It is plaine by Specotts case aforesaid that for the Bishop to excuse himself in a quare imp for refusing of a Clarke quia fuit Schismaticus inveteratus was no sufficient cause but he ought to have shewen in q' o quomodo and so by 9. of Eliz. in Dyer aforesaid that the Clarke was Criminosus without shewing certainly in what was insufficiently pleaded and the reason is because the Patron may take issue thereupon and if it be in cases of Schisme Heresy or other offences Ecclesiasticall the issue shall be tryed by the ArchBishop of the Province And this I have