preiudice the inheritance of him that hath the nomination but he shall nominate to the Chancellor still who in the name of the King shall present to the Ordinarie And if the King present without any such nomination the nominator shall bring his Quare Impedit against the Incumbent onely because the King cannot be tearmed as a Vsurper LECT 13. The things incident to Presentation prosecuted who may present what Parsons may bee presented to whom the Presentation must be made and the manner thereof BEfore hath beene shewed what a Presentation is and what is the effect and fruit of the Patronage and finally in what case the Presentation and Nomination differeth At this time it resteth how to prosecute the things incident to Presentation and to make show who may present what parsons may bee presented to whom the Presentation must bee made and in what manner But because no presentation can bee made vnlesse to a Church or Dignity something shall bee showed when they shall bee voyde and vpon what occasion An avoydance is in two sorts actuall in Deed destitute in Law which is an avoydance de Facto and auoydance de Iure Actuall is when the Church is actuall in deed destitute of his Incumbent in Law when the Church being full of an Incumbent is notwithstanding frustrate of his right and lawfull Incumbent by reason of incapacitie or crime in the parson of him that occupieth in steed of the rightfull and lawfull Incumbent and therefore amongst the Canonists Ecclesia Dr. viduam tuam sponsumque habet invtilem there is therefore a great difference betweene voydance in Law and voydance in deed the first of which two the Espirituall Court hath to determine and therefore the supreame head may so dispense there that such anoydance in Law shall neuer come to be auoydance in deed and of auoydance in Law no title acreweth to the Patron vnlesse something bee therevpon accomplished by the Espirituall Court as a declaratorie sentence or such like but vpon avoydance in deed presentment acreweth to the Patron yet in such and the like cases Distinguendum est for if the dignitie bee temporall as a Master of an Hospitall or such like and that there be found defect in him by visitors it is an actuall avoydance and the Patron may vpon this make a new collation without solemne sentence of depriuation but if the dignity bee Espirituall it is requisite vpon such defect that sentence of Depriuation bee giuen before auoydance can bee and that such sentence be notified to the Patron otherwise Laps shall not incurre against him Auoidance and Plenartie are primatiâ—a contraria which if they come to bee tryable by issue betweene the parties they are tryed by two distinct Lawes Plenartie which is if the Church be full of an Incumbent or not shall bee tryed by the Common Law which is by the certificate of the Ordinarie but Avoydance which is if the Church bee voyde or not shall bee tryed by the Country impanuelled in a Iury notwithstanding if the issue bee vpon any speciall sort or manner of avoydance the same shall be taxed by the certificate of the Byshop so that such speciall cause shall be Spirituall The efficient causes of avoydance are eyther temporall as Death or spirituall as Deptiuation resignation creation session and entrie into Religion whereof more shall bee said afterward LECT 14. The two first particuler causes of Avoydance of Churches viz. Is eyther Temporall as Death or Spirituall as Depriuation the one of it selfe being manifest and the other a discharge of the Dignitie or Ministerie IN the last Lecture or reading before was shewed something of auoydances of Churches in generall now it remaines to pursue the perticular meanes that is to say Death Deprination Resignation Creation or Cession and entrie into Religion of euery of which we will speake something as the cause requireth 1 And first of all concerning Death Quae omnia soluiâ— the matter of it selfe is manifest and needeth no further declaration 2 As concerning Depriuation it is a discharge of the Incumbent of his Dignitie or Ministerie vpon sufficient cause against him conceived and prooved for by this hee looseth the name of his first dignitie and herein two manner of wayes eyther by a particuler sentence in the Spirituall Court or by a generall sentence by some positiue or Statute Law of this Realme 1 Deprivation is in the Spirituall Court for that that it is grounded vpon some defect in the partie deprived although it bee by act of Law yet it is deemed as the act of the partie himselfe The causes of Depriuation by Censure in the Spirituall Court are to be referred to the Common Law therefore let vs remember such of them vpon which questions haue beene mooved in the Bookes of our Law all which causes mentioned seuerally may bee reduced to three principle points first want of Capacity secondly Contempt thirdly Crime As concerning the first although by the Common Law a Lay person bee presented and Instituted and Inducted to an especiall Benefice which Curate is altogether vncapable of the same yet the Church is not therefore to bee said voyde as if no presentation had beene but it is still full of an Incumbent de Facto licet non de Iure vntill by sentence Declaratorie for his want of Capacity the Church be adiudged voyde and vpon this no Laps shall incurre against the Lay Patron without notice of such incapacity sentence of deprivation therevpon to him giuen King H. 4. presented one that was incapable of his presentation and the Presentee was thereby admitted instituted inducted and afterward the Pope enabled the presentee by his Bill yet the King had a scire fac and thereby recovered his presentation againe because the Incumbent was not capable wheÌ„ he was presented If the Patron present one that is meerely a Lay man within the age of 25. he vpon this be Admitted Instituted and Inducted and afterward a Qua. Imp. be brought against the Patron and the same Incumbent whereof Iudgment is given by the default of the Incumbent where indeed the Incumbent was neuer at any time duely sommoned according to the Law by reason of which Iudgment the same Incumbent is removed if vpon this afterward the said Incumbent by sentence declaratory be deprived in the Spirituall Court for want of Capacity in suite there for the cause of his incapacity exhibited against him such sentence is good availeable in the Common Law although the said Incumbent were before removed from his Beneside by the Iudgement giuen against him in the Qu. Imp. for though such declaratory sentence giuen against him by the Spirituall Law cannot remoue him that is removed already yet it shall make this Incumbent answerable to the next Incumbent for all the meane profits received by him that was the first Incumbent from the time of his Induction Yet if the first Incumbent so depriued will afterward bring a writ of deceipt vpon the
this learning dependeth are the things before mentioned As Churches Chaunteries and Chappels presentatiue and such like Churches are of three sorts Cathedrall Collegiall and Patrochiall A Cathedrall Church is the seate or Church of a Bishop and therefore he onely may be said Incumbent thereof Collegiall or Conuentuall Churches are such as in times past haue beene in Priories Abbies or such like and are still in Colledges Patrochial Churches are well knowne and are those Ad quem plebs convenit ad percipienda Sacramenta Baptismatis Corporis Christi vnde pabulum ad animas sustentandas libere suscipiunt for the Incumbent thereof is onely charged with the cure of Soules And it is commonly called by the name of Rectorie which is into two sorts diuided being eyther a Parsonage or a Vicarage And so much briefly for the name matter and substance of Advowsons The former cause or manner of this Inheritance yeeldeth forth the vsuall and ordinarie distinctions of Advowsons to bee eyther appendant or in grosse or part appendant part in grosse eyther for a certaine time or in respect of certaine persons The efficient Causes of a Parsonage are 1. Ratione Dotationis 2. Ratione Fundationis 3. Ratione Fundi Ratione Dotationis is when hee or those from whom he deriues his interest endowed the same Church Ratione Fundationis is when he or his Ancestors or those from whom he claimes his interest were founders of the same Church Ratione Fundi is when the Church was built vpon his or their Land from whom he deriues his interest or all three together as appeareth by the verse vsed amongst the Cannonists Patronum faciunt dos edificatio fundus The vsuall cause or causes why Patronages of Churches are giuen by the Law and bestowed vpon Lay-men is and were Vt inducantur laici ad fundationem constructionem Desetionem Ecclesia The fruit and effect of a Parsonage consisteth in those three things Honos Onus Vtilitas The Honour attributed to a Patron consisteth in his right of presentment In the discourse whereof I shall afterward consider what is required before the same can bee attempted then what the nature of presentation is and lastly what is required for the making of a full and perfect Incumbent Before the presentation can bee lawfully made it is meet that the Church become void and of avoidance our Law taketh notice the same being triable thereby The manner and meanes how an Avoydance groweth is eyther Temporall or Spirituall 1 Temporall by the Death of the Incumbent 2 Spirituall and this is in diuers manners that is to say by Resignation Depriuation Creation session and entrie into Religion As touching presentation we are to see first what it is then who shall present afterwards what person may be presented and last of all in what manner the same must be done Those things that are required to make a perfect Incumbent after the presentation had dependeth vpon the Dutie of the Ordinarie As first Admission which requireth examination of the Clarke whereupon sometime ensueth a refusall and thereupon either notice or no notice as the case requireth is to be giuen to the patron If the Clarke be admitted then he must bee instituted wee are then to see what Institution is and what is the effect thereof vpon which ought to ensue Induction thereinto likewise we must see what it is by whom it is to bee performed and what it doth import If the Patron be remisse and doth not present within the time limitted then incurreth the lapps of the Patron to the Bishop and from the Bishop to the Metropolitan and from him to the Crowne where it resteth but if the Bishop take his time then is his presentation a Collation and in the right of the patron himselfe 2 The second effect of a personage which is Onus resteth onely in the defence of the Churches possessions to which the Patron and Ordinarie by aide prayer are to bee called by the Incumbent for the defence of the same to auoid such charges and incumbrances as are vnduly laid thereupon 3 As touching the third which is Vtilitie we haue not any thing to doe with it in our law but we must leaue the Consideration thereof to the Cannon law for this Vtilitie is imployed for the sustentation of the patron for if hee or his posteritie being patrons doe fall to decay then the incumbent of the fruites of the Church by compulsarie Censure of the Ordinarie according to that law is to be enforced to make Contribution to them All writs concerning this kind of Inheritance are either giuen to the patron or Incumbent Writs giuen to the Patron are of two sorts for either he demandeth his inheritance or presentation against the possessor of the patronage or hee attempts suit against the Ordinarie for either not doing or doing his Duty vnduly In euery action brought against him that pretendeth possession it is to be intended that eyther he is lawfully or vnlawfully possessed The vnlawfull possessor is the vsurper against whom onely lyeth three Writs which the Statute speaketh of namely One of the right as the writ of right of Advowson and the other two of the possession as a Quare Imp and Darraigne presentment Against the lawfull possessor lyeth the writ of Dower for the wife of him that Dyed seized of such estate as she might â—e endowed of and a Cessavit of the land against the Tenant But no Formedon lyeth for the issue in taile in Discender nor for any in the remainder nor for the Donor in the reâ—â—rter for that that if the Advowson be in grosse it cannot properly be discontinued and being appendant it is to bee recontinued by the same meanes that the land to which it is appendant is to be recovered The Incumbent as touching his right for his Rectorie hath the onely Writ of Iuris vtrunâ— and for his possession any other possessarie action For if another happen during his presentation to be presented by the same Patron or doe come into the same Church by course of the Law so that the patronage commeth into Debate their lyeth a spoliation it being a suite in the Spirituall Court LECT 2. The Right that both the Patron and Ordinarie hath ioyntly to intermeddle with the Church IN the former Lecture or Reading hauing deliuered in the proiect a Discourse of Advowsons briefly discouering their Name nature Divisions consequents causes effects and Incidents of the Patronage Now it remaineth in like manner to prosecute euery of those parts then but pointed at with a more large and ample explication First therefore it is to be considered that in euery Benefice three persons haue intrest That is to say the Parson hath a Spirituall possession The Ordinarie to see the Cure serued And the Patron hath Ius presentandi Hence it is that I haue said that a Patronage is a right of presentation therefore it is called Ius
Patronatus not a power nor an authoritie onely but a right intrest or an Inheritance The word Ius or Right is diuersly intended sometimes strictly to signifie what is left a man when that that was once his owne is wrongfully taken from him as by Disseisin or such like In which sence the word Droit and Tort are priuatè opposita and is thus deuided to be either right of Action or right of Entrie sometimes in a more ample signification as Ius habendi ius possessendi ius disponendi by which occasion I purpose at this time to discusse whether the Patron and Ordinarie haue right in the Rectorie or Benefice and what manner of right it is that they haue their right is called Collaterall as wee read and not Habendi nor possessendi nor retinendi for none of them can haue retaine or possesse the Church or Rectorie but their right is Ius Disponendi wherein euery of them hath a particuler Charge to the possessions of the Church so free as that hee may maintaine such a one as is thereinto to be presented That they haue a kind of Disposition in them it is proued by many reasons 1. No charge can be founded to be laid vpon the Church in perpetuity to bind their successors but the Patron and Ordinarie must be made parties thereunto as all our bookes agree and Litleton giues a notable reason for it VV ch is that if the Charge be perpetual the consent of all 3. ought to concurre of which ensueth thus much that if a writ of Anuitie be brought against the parson and he prayeth in aide of the Patron and Ordinarie and the Patron maketh default and the Ordinarie appeareth and confesseth the action or if the Ordinarie make default and the Patron appeare and confesseth the action that this Anuitie shall not bind the successor but if they both appeare and one of them confesse the action and the other faith not any thing it shall bind the Rectorie in perpetuitie For Qui tacet consentire videtur But if the Parson onely with the consent of the Ordinarie for Tythes or other consideration executorie charge the Church in perpetuitie it shall bee good without the consent of the Patron as well as if the consideration executorie had remained Secondly it followeth that the charge of the Parson Patron and Ordinarie shall bind in like manner as their intrest is But if a man haue an Advowson for yeares and the Parson by the consent of such Patron and Ordinarie grant rent charge in fee if the Parson dye within the terme the termor of the Advowson presents another the terme expireth Quere if then the Anuity shal be deliuered but it seemeth by some that it shall be deliuered for that that this Incumbent was not the party that made the grant and therefore he should not hold it charged any longer then during the intrest of the Patron And therefore if two joyntenants in common or parceners be of an Advowson who agreeth to present by turne if the person ioyne in grant of a rent charge in fee with one of them the Parson shall bee charged and also his successors alterius vicibus for euer because those successors that commeth in by him that made the Charge shall bee subiect to it onely and those that commeth in by the presentation of the Patron that neither ioyned nor confirmed the same shall hold their land discharged for euer Also such Anuitie with which the Rectorie is charged doth not properly charge the Land but the Parson for if the grantee enter into any part of the Gleebe hee shall not suspend the rent or anuitie And if the Parson Patron and Ordinarie ioyne in a graunt of an Anuitie to S. H. and his heires except they speake of the successors of the parson and that the same be granted for the parson and his successors this cannot be good longer then forthe time that the parson that granted the same continueth Parson for an Anuitie is nothing but a parsonall Dutie and no otherwise And if such an Anuitie bee granted ouer it is not needfull to haue Atturnment all which proueth that the same chargeth not the Land but the Parson yet neuerthelesse the parson is charge for if the Grantor assigne or be remoued by any meanes whatsoeuer the charge followeth not his parson but resteth vpon his Successors and the Iurie may bee taken of the Towne where the Church is which proueth that such graunt chargeth the parson in respect of the Land Moreouer when the Patron and Ordinarie confirmeth the graunt of the Parson it is requisite that the Confirmation be made during such time as he is Incumbent that made the Charge for if hee Die be remoued resigue or otherwise be deptiued before the confirmation such Confirmation is voyd notwithstanding If an Incumbent grant rent charge to begin after his Death out of his Rectorie and the Patron and Ordinarie confirmeth the same this is good for so long time as it is graunted The second principall Reason to proue the intrest they haue to the Church or Rectorie is that all three may charge the Church in perpetuitie so may the Patron and Ordinarie doe onely in time of vacation which charge shall bind the Successor for euer Because none hath intermedling with the Rectorie but the Grauntors aforesaid The third principall reason is this that as the Patron and Ordinarie in time of vacation may charge the Church in perpotuitie so they may make a release by which any Anuitie that chargeth the Church or Rectorie shall be extinguished euen in the time of vacation Also if a man hath an Anuitie out of the Church of S. and afterward this Church is vnited to the Church of D. and after the vnited Church becomes void if the Grantee release in time of vacation to the Patron that was patron of the other Church that is to say of D. and to the Ordinarie such release shall not discharge the Incumbent because it was not made to the Patron of the Church that was first Charged for although both the Churches are vnited and become one yet are their patronages distinct and seuerall moreouer that Intrest that the Patron and Ordinary hath in the Rectory is but Collaterall and ius disponendi and no otherwise as hath beene formerly said For if an Advowson discend to an Infant and the Incumbent bee impleaded in a writ of Anuitie and prayeth ayde of the Patron and Ordinary and for that that the patron is within age likewise prayeth that the Parol may demurre vndiscussed during his nonage this shall not bee granted but the Inâ—ant in such case shall bee ousted of his age because the charge lyeth vpon the parson and not vpon the patron or Ordinary who are not at any time to inioy the Rectory themselues but onely are to haue the disposition thereof Finally to proue that it is meerely Collaterall If the patron Ordinary doe
blood vnlesse the first haue presented to it in his life time but if hee haue presented in his life-time then it shall discend to the next heire of the entire blood In Advowson is an inheritance and cannot be deuided into parts or parcels for in a writ of right of Advouson if the tenant say that the demaundant is seased of the sixt part of the Advowson this shall abate the whole writ and yet part thereof may be in some sort considered for there is an vsuall difference taken betweene Advocatio medietatis Ecclesiae and medietas Advotionis Ecclesiae For Advocatio medietatis Ecclesiae is where two Patrons be and euery of them hauing right to present a seuerall Incumbent to the Bishop to be Admitted into one and the same Church for diuers may be seuerall parsons and haue care of Soules in one Parish and such Advowson is a like in euery of those Patrons but euery of their presentments is to the moitie of the same Church and therefore it is called Advocatio medietatis Ecclesiae or as the cause salleth out aduocatio tertiae partis Ecclesiae and the like But Medietas aduocationis Ecclesiae is after pertition betweene perceners for although the Advowson bee entire amongst them yet any of them being disturbed to present at his turne shal haue the writ of Medietate or of Tertia or of Quarta parte Advocationis Ecclesiae as the case lyeth Also if two Patrons of seuerall Churches make vnion or confederation of their Churches by the assent of all those whose consent is requisite the patronage of euery of them shall not be but medietas Advocationis Ecclesiae because but one Incumbent is onely in this case to be presented and not Advocatio medietatis Ecclesiae And this Difference is onely taken and obserued in the writ of Right which is altogether grounded vpon the right of Patronage But in the Quare Impedit which is onely to recouer Damages no such diuersitie is considered but the writ is generall Presentare ad Ecclesiam Lastly it is to be considered what temporall profits value or Commoditie this kind of Inheritance is reputed to be of It is not by the Law of God to be bestowed vpon any Incumbent for any need or price but onely reserued for such as are worthy thereof And therefore it is said * That Guardian in Socage of an Infant shall not present to any Aduowson because such presentation is not to bee bestowed for price for that that such Guardian cannot account for the same yet neuerthelesse because the Patron thereby may aduance his friend it hath beene often esteemed for Assets in Formedon And as the value thereof may come in question as in a writ of right of Advowson where the tenant avoucheâ—h and the vouchee looseth the tenant shall recouer in value against the vouchee for euery Marke that the Church is worth per Annum xij d. So that the thing which of it selfe is not valuable is by a secondarie meanes made and esteemed valuable because that otherwise this mischiefe should ensue thereof which should be a losse without recompence 1. By this it appeareth that it is an Inheritance Incorporate 2. That it lyeth in Tenure 3. That it passeth by the name of Tenement 4. That a precipi quod reddat lyeth thereof 5. That both tenant in Dower and tenant by the courtesie and in some case a Possessio â—ratris may bee thereof 6. That it is entire by nature though by accidentall meanes otherwise and in some respect deuisable 7. Though it be bestowed gratis yet it is valuable for which it is a benefit to aduance a friend and for being iniured therein we shall recouer damages LECT 5. The word Right and the word Advowson explained and to what Inheritance an Advowson may bee appeudant originally IT resteth at this present for the more ample explication of this word Right whereas in defining an Advowson wee say it â—â—keth a Râ—gâ—â— to set forth the dâ—â—â—sions of Advowsons and to prosecute euery part deuided with a â—ull Discourse that thereby what manner of right and inheritance an Advowson is may be the better perceiued Advowsons therefore are either appendant or in grosse or part appendant part in grosse An Advowson appendant is a right of Patronage appertaining to some corporall Inheritance so that hee that hath the same Inheritance is thereby also entituled to haue the other as annexed to the same For an Advowson passeth alwaies with the Inheritance to which it is appendant vnlesse there bee expresse nomination onely by these words Vna cum pertinentijs except it bee in case of the King where the Statute De prerogatiua Regis cap. 15. prouideth expresse words to make the same to passe The originall of Advowsons appendant at the beginning must be in this manner sythencâ— Patronages were wonne and gotten as before hath beene declared and that either ratione fundatiâ—nis dotationis or fundi were as it seemeth by all conformity of reason the originall foundations of Advowsons appendant for when Mannors were created either the land vpon which the Church was built was land parcell of the Mannor or honor to which it is appendant and he that was Donor thereof gaue the same to build the Church vpon and that the Advowson of the same Church so built should bee appendant to the same Mannor which is ratione fundi Or hee that was owner of the same Mannor or of any such corporall Inheritance endowed the same Church with parcell of the land of the same Mannor honor or such like corporall Inheritance and gaue the same to the Gleebe of such Chuch vpon which the Advowson by ordinance of the Ordinary and by the consent and agreement of all others whose consents were requisite in this behalfe was at the beginning appointed to be appendant to such Mannor Honor or other corporall Inheritance in recompence of such liuely hood and dotation bestowed vpon the Church And hereof it ensueth that if at any time the Church bee desolued the Gleebe and land vpon which the Church was built shall returne and escheate to him or them from whom it was deriued and deduced As in like case vpon the dissolution of an Abbey the same shall not returne to the sounder of common right vnlesse some other ordinance be made to encounter the same 1. Therefore to auoyd confusion in the consideration of Advowsons appendant let vs first see to what sort of Inheritance Advowsons may be properly appendant 2 Secondly in what manner it is appendant that is if it bee part or parcell of the Inheritance to which it is appendant or if as accident or necessarie thereunto 3 How it may bee seuered from his principall and againe by what meanes it may bee therevnto recontinued againe As to the first it may be appendant properly and originally to things that are onely Inheritances corporall that are compound As to an Honour Earledome or
such like likewise to a Castle more vsually to a Mannor all which principall things that is to say the Earledome Honour Castle and Mannor c. are Inheritances compound made and combined of diuers things and in nature different being those which the Logicians call Tota Intigratia It may bee appendant to an Acre of Land or to a Messuage to a Rectorie Parsonage Church or such like And so one Church may be appendant to another of which we shall take occasion to speake in the Lectures following But at this present let vs see in what sort it may be appendant to a Mannor Advowson that lyeth in one Countie may be appendant to a Mannor that lyeth in another Countâ—e And how two or more Advowsons may be appendant to one Mannor may be manifested thus If hee that in Ancient time was seisied of a Mannor that extended so large as it was diuided into diuers Parishes the Lord of the same Mannor eyther gaue out of the same Mannor land to build or to endow euery of the Churches and so euery of them might be appendant to the same Mannor How one Advowson may bee appendant to two Mannors may likewise thus appeare Suppose that A. be Seisied of an Advowson of the Church of Dale as appendant to the Mannor of Sale and that both those Churches by the Ordinarie and by the consent of both the Patrons bee vnited and called the Church of Dale and ordained that the Patrons shall present by turne for euer these Churches by this vnion and confederation are made one and so the Advowson entire and no moities as is betweene Coperceners joyntenants and tenants in common and therefore it is appendant to both Mannors for the Patrons seuerally presenting shall present to the same Church as appendant to both Mannors that is to say the one shall present seuerally to the Church as to his Mannor of Dale and the other also shall present thereto when his turne commeth as appendant to the Mannor of Sale Yet some are of opinion and some authorities there are that each of the same Patrons after the same vnion is seisied De medietate Advocationis Ecclesiae And in what manner soeuer the same Advowson be entire yet is the Parsons intrest seuerall For if such Incumbent which is presented after such vnion made graunt a rent charge out of the Gleebe and one of the Patrons onely confirme no Distresse after the Death of the Incumbent that granted the rent can bee taken vpon the Gleebe that belongeth to the Gleebe of the other Patron to make the same subiect to the charge in perpetuitie for that that hee confirmed not But if the Mannor of Dale bee holden of the Mannor of Sale and to the Mannor of Dale is an Advowson appendant and that the Mannor of Dale hath Escheated to the Mannor of Sale so that the Demeanes of the one is become parcell of the Demeanes of the other yet the Advowson shall be still said appendant to the Mannor of Dale as it was at the first And the Mannor of Dale shall continue still in reputation â— Mannor in respect of such things as are appendant therevnto The moitie of an Advowson may bee appendant to a Mannor or parcell of a Mannor Also in the pleading of a case in Ed. 6. by Dyer it appeareth that one fourth part of an Advowson was alledged to be appendant to the one moitie of a Mannor and another fourth part of the same Advowson was appendant to the other moitie of the same Mannor and the other two parts were in grosse yet neuerthelesse an Advowson in euery such or the like cases cannot be said to be diuided properly for that that it is entyre if you respect the presentation and not the right of Patronage For if a man hath an Advowson and giueth one part thereof to A. and the other part to B. one third part to C. yet the Advowson remaineth entyre amongst them and if any of them disturbe his companions they are without remedy for that they ought to ioyne in a Quare Impedit because the presentation is a parsonall thing and entyre wherein they ought to agree but seeke how they can seuer in these causes in a writ of Advowson Moreouer as touching the right of Patronage if one bring a writ of right of Advowson and the tenant pleadeth that the demandant is seisied of one sixt part or of some one part of the Advowson the entyre writ shall abate notwithstanding if it be in barre but for parcell because cause the Advowson is entyre and not seuerall by reason wherof the demandant cannot abridge his demand And as in the â—ases aforesaid it hath appeared that â—â— Advowson of a Church may bee ap 〈…〉 â—o a Mâ—nnor in like manner may the 〈…〉 wson of a Priorie bee appendant to a 〈…〉 LECT 6. To what things an Advowson may bee appendant secondarily IN the Lectures aforesaid was shewed to what sort of Inheritances an Advowson may bee appendant originally Now it remaineth â—o show to what things it may bee appendant secondarily An Advowson therefore cannot bee appendant to one Acre of land or two acres but only to such parcels of land as haue beene parcell of a Mannor or parcell of any Earldome Castle or such like Inheritance to which an Advowson may bee appendant originally But in what order the same may bee appendant to one Acre let vs consider some bee of opinion that if a man be seisied of a Mannor to which an Advowson is appendant giueth certaine acres of the same Mannor vna cum Advocatione to another in such case the Advowson shall not passe to the grantee vnlesse the same be by Deed and so the same shall be appendant to the same Acres So likewise some hold opinion that if a man be seisied of a Mannor to which an Advowson is appendant in right of his wife or Ioyntly with his wife and maketh a seofement in fee of certaine acres parcell of the demeanes of the same Mannor vna cum Advocatione and dieth that the wife notwithstanding this may present to the Advowson before she recontinue the same acres by Cui in vita because as they thinke the same Advowson is not appendant to the same Acres and such alienation is not but during the life of the Husband Neuerthelesse I doe not perceiue any great reason why the Law should be so in such a case for if a tenant in tayle of a Mannor to which an Advowson is appendant aliene some of the same Acres parcell of the Mannor together with the Advowson although it bee without Deed notwithstanding it is appendant to the Acres and cannot be recontinued but by Formedon to be brought for the same Acres which case in reason being like to the Formedon of the Acres and Advowson aliened by the husband I know not any difference of Law that should bee betweene them And therefore if a man
that is now seisied of the Mannor and Advowson vpon which sine the said counâ—ee being still owner of the Mannor and Advowson granteth to the Counsor that hee shall present to the Advowson euery second auoydance by this sine the Advowson remaineth in respect of him that hath the Mannor still appendant to the Mannor as before but in respect of the Counsor that neuer had interest before at euery second auoydance it is become in grosse and he shall present therevnto as to his Advowson in grosse But if as he in the former case hee that was seisied of the Mannor had leauyed the fine and the Estranger so being counsee and made such grant to the counsee to present at euery second turne the Advowson had beene totally in grosse for by the counsance it had beene wholly in grosse and scuered from the Mannor If three bee seisied of a Mannor that hath an Advowson appendant thereto belonging and two of them releaseth all their right of the Advowson to the third the third is seisied of two parts of the Advowson as in grosse and of the third part as appendant for that that the third part was neuer seuered from the Mannor but if the third dye all the entyre Advowson descends in grosse to his Heyre for nothing was in Ioynture but the Mannot that suruiued to the other two that released their right in the Advowson and no part of the Advowson can come to them for that the same was not in Ioynâ—ure at the time of the death of the third Ioyntenaue and also because they released their right before If two Ioyntenants bee seisied of a Mannor to which an Advowson is appendant and the one granteth all his right of the Advowson vnto another in Fee this Advowson is bothâ— in grosse and appendant and if hee that hath the Mannor and ought to present euery second turne bring his Quare Impedit he shall not say that he is seisied of the Mannor with the Advowson appendant at euery second turne namely when there is partition betweene them to present by turne but shall say that he was seisied of the Mannor with the moytie of the Advowson appendant If a Mannor with an Advowson appendant therevnto descend to two coperceners and they make such partition of the Mannor and composition to present although the composition be otherwise then of right is due yet is the first presentation to belong to the eldest and the second to the second copercener c. and the Advowson remaineth still appendant notwithstanding such composition to present by turne But if three Mannors discend to three Coperceners and an Advowson is appendant to one of them and they make such partition that euery Copartner hath a Mannor allotted to him and composition to present by turne to the Advowson now is the Advowson in such case severed and in grosse in respect of the Coperceners If a man bee seisied of foure Mannors and to one of them an Advowson is appendant and dyeth hauing foure Daughters who maketh partition of the Mannors so that everie of them hath a Mannor out of which partition the Advowson is excepted this Advowson is in grosse by reason of the exception yet it seemeth if all the other Sisters should dye except shee to whom the Mannor was allotted to which the Advowson was apdendant that the Advowson should bee againe appendant to the Mannor If two Churches bee and the Advowson of the one is appendant to a Mannor and the other is in grosse and the two Churches hap to bee vnited and vpon the vnion it is ordained that the Patrons shall present by turne now in respect of him that hath the Mannor the Advowson shall be appendant and hee shall present thereunto as to an Advowson appendant but as to the other hee shall present as to Advowson in grosse LECT 12. What Presentation is and what is the effect and fruit thereof and in what manner Presentation and Nomination differ IN the aforesaid Lecture or reading hath beene declared such matters as was requisite for the explanation of the word Right set forth in â—â—â— Description of an Advowson which word being there put in steed of that which the Logicians call Genus the rest of the words subsequent there likewise expressed are the Proprieties effects and qualities incident to an Advowson thereby to distinguish this Right from other rights so that by such Discription the nature of an Advowson may be fully Deciphered An Advowson as is said is Ius presentandi and the power to present is the very fruit effect and entire profit of an Advowson which is by the meanes of presentation to preferre and advance our Friend and Presentation is thus described A Presentation is the Nomination of a Clarke to the Ordinarie to bee admitted and Instituted by him to the Benefice voyd and the same being in writing is nothing but a Letter missiue to the Bishop or Ordinarie to exhibite to him a Clarke to haue the Benefice voided the formall force hereof resteth in these words chiefly Presento vobis Clericum meum 13. H. 8. 14. b. Therefore in our Bookes of Law an Advowson is called nothing but a Nomination or Presentation a power to preferre and inable another to haue the Benefice which not with standing the Patron cannot inioy Wherefore if the Nomination of an Advowson be granted habendum the Advowson the habendum is sufficiently pursuant for although it varie in name yet it is all one in nature so that the Graunt of the nomination of an Advowson is in substance the Graunt of the Advowson For the profit and commoditie of an Advowson resteth in the Nomination or Disposition of the same hereof iâ— ensueth that if a man grant to me an Advowson excepting the Presentation during his liâ—e such exception is voyd and repugnant to the Graunt So that the opinion of Thompton in the second Commentarie of Plowden in the Arguments of Smith and Stapletons case cannot bee Law who thinketh that if Tenant in tayle bee of an Advowson and bee granteth to one by Fine the nomination of the Clarke to the same Advowson when it becom meth voyd that this Fine shall not bind the Issues by the Statuto of the 32. H. 8. 36. Because such Fine is leuyed of a thing intayled as hee thought whereby aboue it hath appeared that the Presentation and the Nomination is one thing and the fruit and full profit of the Patronage and therefore such fine is of full effect and force to binde the issue in tayle for the Advowsons and yet if the case aforesaid bee so vnderstood that tenant in tayle of an Advowson granted by fine the Nomination of the Clarke to one and his Heyres so that when the Church become voyd the grantee and his Heyres should nominate a Clarke to the tenant in tayle and his Heyres and that hee or they should present the Clarke so nominated to the Ordinarie and the tenant in tayle dyeth such finâ— shall not
Iudgement given against him in the Quare Impedit by default for that that he was not sommoned as aforesaid hee shall haue Iudgement herein and the same Deprivation had in the meane season in the Spirituall Court no Impediment therevnto for that that in the said suite of Deceipt the Incumbanâ—iâ— shall not be in question but onely the disturbance of the Plaintiffe in the Quare Impedit and so for Incapacitie Contempt may likewise be a cause of Deprination as if the parson or other Incumbent bee Excommunicate and he so remaineth in his obstinacie for the space of fortie dayes hee is for this depriuable of his Benefice and yet the Church is not voyd in Deed without sentence in Depriuation giuen against him and if before such Depriuation the King as supreame Ordinarie and the head of the Church would haue a Dispensation to the Incumbent who for all the sentence of Depriuation for his contempt had hee shall hold his Benefice such Dispensation were voyde and should restraine the Patron from his presentation acrewed to him by meanes of such Depriuation after ensuing The third cause is Crime within which may be comprehended Delappidation or spoyle of the Church Benefice once in our Bookes worthy of Depriuation likewise Sohisme or Heresie for the which or if for some other causes the Incumbent were depriued in ancient time in the Court of Rome vpon such Depriuation comming in question in our Law the issue should be vpon the avoydance and it should be tryed where the Church or dignitie is but because Crime is Hidra with many heads and an evill Tree whereof is bred Ingens prouentus much fruit for all fruit of offences which may be comprehended vnder this name therefore let vs surcease further to deale with it onely in generall noting those three things as the incidents and consequents of Depriuations First that our Law adiudgeth not the Church actually voyde without a sentence of Depriuation as hath beene before prooued Secondly that though such sentence of Deprivation be meerely wrongfull yet the Dignitie is voyd and the sentence remaineth in his force vntill it bee released Thirdly and lastly if the party depriued within time require by this Law an appeale vpon such sentence of Depriuation giuen against him at the Court of the high Iurisdiction such is the nature of an Appeale that it holdeth the sentence vpon which it was first brought in suspence because in the Common Law it is said to haue effectum suspensum prioris pronuntiati and therefore if it bee brought vpon Depriuation it voydeth the vigour thereof and reuiueth the former dignity for such Church shall not be voyde vntill the first sentence of depriuation chance to be affirmed in the appeale and thus much of Depriuations in the Spirituall Court shall suffice at this time Concerning Depriuation by Censure of Statutes and Positiue Lawes see these Books that is tosay 13. El. Cap. 12. 26 H. 8. Cap. 3. reviued by the 1. El. Cap. 31. or 3. LECT 15. The third particular cause of Avoydance being Spirituall is Resignation THe precedent Lecture before going hath shewed the particuler causes of Auoydance of Churches whereof the two first Death and Depriuation hath beene at large disciphered the next is Resignation of which I will also at this time something speake Resignation or as the Canonists tearmes it Remytation Est Iuris proprij Spontanea refutatio or whereas Resignation is the voluntarie yeelding vp of the Incumbent into the hands of the Ordinarie his intrest and right which he hath in the Spirituall Benefice to which he was promoted Of which the matter or subiect is the Spirituall benefice as promotion Ecclesiasticall The forme is the manner how and with what words and due Circumstances it is or should be accomplished The finall Causes or effects hereof is eyther thereby to make the Spirituall Benefice void and destitute of its Incumbent or vtterly to anient and totally to extinguish such Spirituall promotion The efficient Causes are the persons that resigne and the persons to whom it is or ought to be resigned As concerning the matter this onely may suffice to be obserued that all Spirituall Dignities presentatiue may properly be resigned although they be Abbies Priories Prebends Parsonages or Vicaridges yet such Dignities as are certaine may also be resigned or to speake more properly relinquished as were some of the Abbies in the time of King Hen. the 8. and so may Bishop pricks at this day be resigned c. into the hands of the King as supreme Ordinarie of the Church and rightfull Patron of the same Bishoprickes As concerning the forme of Resignation and protestation which must be when the partie will resigne they are set out in the Register fol. 302. in the folioes of the Booke following as Fitzh noteth in his Nat Br. fol. 273. F. or S. The words of chiefe effect in such instrument of Resignatine are Remantiare Edere Dimittere for Resignation is not any proper tearme of the Common Law Yet the Law of this Realme more respecting matter then formalitie of words hath adjudged a Graunt made by a Prebendaâ—ie to the King to be an effectuall Resignation in the forme of these words following that is to say Noverint me A. c. exanimo Deliberatiuo certa scientia mero motu ex quibusdaâ— causis iustis rationalibus me specialiter mâ—uent vltrò sponte dedisse serenissimo Domino â—â—stro Ed. 6. Angliae c. supremo Capiti totorâ—â— Prebendarum suorum ac omnia maneria terras tenement a possessiones hereditament a quecunque tam spiritualia quam temporalia ac omnem plenam liberam facultat dispositionem authoritat potestat dictae prebendae pertinen spectan appenden c. habendum tenendum eidem Rege Hereditor Successoribus suis ad eius vel corum proprium vsum c. As touching the efficient causes of Resignation as first the person that resigne if hee be not but onely Admitted and Instituted although as concerning the Spirituall Function he be a Parson before Induction yet because no part of the Free-hold of the Spirituall Benefice is transferred to him but by the Induction hee cannot vntill after the Induction if the King be Patron make any good and effectuall resignation as therefore Renuntiatio respiâ—it plerumque ius quesitum ac repudiamco pertinet adius nondum acquisitum As also for that that by this submission and Institution the Church is not full in respect that the King being patron such Incumbent before Induction is full subiect to haue his Presentation and Institution revoked But if a Subiect bee Patron and his presentee be admitted such presentee if hee be willing to leaue his Charge may before Induction resigne the Church for the espirituall Dignitie was ful of an Incumbent in respect of his Patron and because also there is no other meanes to cleare the Church of him but by such renunciation As concerning the person to
whom Resignation must be made Distinguendum est for if he be onely purposed to auoyd the Church and to cause the Patron to present againe then it ought to bee done to the Ordinarie to whom of right the Admission and Institution belongeth and to whom the Patron is bound to present for it is a Rule amongst the Canonists Apud enim debet fieri renuntiatio apud quem pertinere dignoscitur confirmatio and Reason will it shall be so because the King as supreame Ordinarie if such Resignation should be made to him hee is not compelable to giue notice to the Patron of such Resignation nor can hee or any other Ordinarie collate vpon the patron such notice Notwithstanding if the purpose be vtterly to extinguish such Dignitie spirituall the same Resignation may be made to the King as to the supreame head of the Church as in ancient time it might haue beene made to the Pope For such Authoritie and Iurisdiction as the Pope vsed in this Realme was contradicted by an Act of Parliament made in the 25 H. 8. and other Statutes to be in H. 8. and his Successors which Iudgement and opinion I hold to bee firme Law especially where the King himselfe is Patron or where the Patronage is to some Spirituall man for euer vpon Spirituall parsons the Pope before the Statute of the 25. E. 3. by his prouisions and other meanes vsed more Iurisdictions then at any time Lay persons could be permitted to doe The finall effect which consisteth in the end wherefore Resignation was ordained wee haue heard to be two fold the one to adnihilate the Spirituall promotion the other to make it voyde and fit for no Incumbent of the first we haue sufficiently spoken before and the vse of the other is manifest by those authorities subsequent A Prebend maketh a Lease for yeares rendering rent and after resigneth it it is holden cleerely that by this his Resignation this Prebend is discharged of the rent and therefore such charge shall not be any burthen to his successour likewise if a parson resigne after hee hath made a Lease for yeares the Lease is avoyded Likewise if a Parson permute or Change his Benefice which indeed cannot bee accomplished without Resignation the Charge or Graunt made by such Incumbent for yeares is vtterly voyde If a Parson grant an Anuitie out of the parsonage and after resigne if after all this the Patron and Ordinarie will confirme such Graunt the Confirmation and the Graunt which was voyd before Confirmation cannot be availeable With which agreeth Pollyard who saith that if a parson charge a Gleebe and after resigneth or dyeth the charge is avoyded A Recoverie was had against a Parson in an action of Debt and in a fierifac therevpon the Sheriffe returned that the defendant was Clericus Beneficiatus non c. in this case if the Defendant resigne the plaintiffe is destitute of his recovery for by such Resignation the Church is discharged because the Ordinary cannot sequester the Spirituall Benefice vpon any processe awarded to him But if the Incumbent that so chargeth bee such as hath by the law absolute power to deale with the lands of his Spirituall Dignitie without the Confirmation of any other and may by the Law discontinue as Abbot or pryor or such like then such charge by him shall not be voyd by such Resignation but shall continue against his successors vntill it bee avoyded by some other meanes Thus much concerning the finall cause of Resignation to which suffer vs to annexe the causes allowed by the Common Law to mooue a Byshop or any other beneâ—iced parson to relinquish and surrender their function Conscientia criminis debilitas corporis defectus scientia malitiae plebis graue scandolum irregularitas persona Lastly let vs consider that Resignation is deemed in the Law totally to be the act of the partie and therefore if any Incument being plaintiffe in any action resigne his Dignity or promotion his writ brought by him as Incumbent shall abate But if such Incumbent take out a writ concerning his Râ—ctory and afterward resigne and againe be promoted to the same Dignity before the returne of the Writ aforesaid it is good and auaileable Vpon the part of the Deâ—endant vpon the same reason is the Law that if any action bee brought against any Incumbent that may charge him in respect of his seuerall promotions his resignation hauing the same suite for that that it is his act shall not abate such writ or action It is to be noted that there are two sorts of Resignations the one is absolute when the Incumbent intendeth so to make voyde the Church and to surrender his right therein to the Ordinary wherevpon the Patron may present whosoever it shall please him to the Church as if the said had beene voyded by Death or other meanes of Avoydance as by precedent authorities hath appeared The other cause of Resignation is causa permutationis of which in the Register fol. 306. b. appeareth a precedent Whereupon also ensueth the forme of Presentation in this manner In Dei nomine Ego H. W. nunc Rector Ecclesiae de P. London Diocefies prius Rector Ecclesiae de L. â— Dictae P. Diocesies protestor dico allego in hijs scriptis quod si contingit quod huiusmodi Ecclesia meâ— de P. absque dolo culpa meis in hac parte à me aliqualiter evincatur volo intendo ad Dictam Ecclesiam de N. absque aliqua difficultat libere licite redire eam rehabere iuxta Canonicas sanctiones protestor insuper quod non intendo nec volo ab huiusmodi protestatione seu affectu eiusdem recedere aliqualiter in futurum sed eidem protestitationi contentis in eadem volo intendo in futuris temporibus sirmiter adhaerere iuris benesicio in omnibus semper soluo c. But to what purpose Protestation should seem in our Law I cannot perceiue for that that it appeareth by the Booke in the 45 H. 3. Fitzh exchange it LECT 16. The next speciall meanes in Avoydance of Spirituall promotions Presentatiue is Creation NOw Creation is where the Incumbent is not onely Elected but consecrated Byshop or Atchbishop By the former Dignities of such Consecrated the Benefices becomes voyd and the Churches or places seuerall where their former Sanctuarie was to be executed and vtterly discharged of their Incumbent and this immediatly vpon Consecration without solemne sentence Declaratorie in the Spirituall Court The reason whereof is not onely for Inconuenience of Pluralities but also because it should be likewise inconuenient for one and the same parson to be a Subiect and a Soueraigne which in the course of our manner of Iurisdiction cannot be but is reserued in the Superiour Neuerthelesse such auoyuance is not before Consecration or Creation nor before Consecration is he that is promoted deemed or called Bishop or Archbishop as appeareth by those authorities of 5.
E. 2. Fitzh br 250. vide 9. E. 3. f. 1. trial 571. 7. E. 3. 40. a. b. vide 21. E. 3. 40. a. b. 41. E. 3. 56. b. 46. E. 3. 32. 11. H. 4. 37. 59. 76. 22. H. 6. 27. â— For the better vnderstanding of this kind of Auoydance it is to be noted that as foure things are required to concurre for the full perfecting of any Parson or Parsons preferred to any Dignitie Ecclesiasticall presentatiue or Collatiue as to wit first of all Presentation or as the case requireth Collation secondly Admission thirdly Institution and fourthly lastly Induction So in the promoting of a Bishop or Archbishop by the Spirituall lawes were required before the statute of the 25. H. 8. cap. 20. also foure things answerable in many respects to the foure former before recited As first Election secondly Confirmation thirdly Consecration Creation or Investure and fourthly Installation or Inthronation The Election was made by the Deane and Chapter or by the Pryor and Coâ—ent where they being as Deane and Chapter as in euery of the seas Cathedrall of Canterbury Worcester and Norwich in which Churches the Pryor and Covent was till the dissolution of Monasteries at which time the same Pryories were dissolued and in steed of them in euery of the same Cathedrall Churches a Deane and Chapter hath been by priuate Acts of Parliament erected But in some other Cathedrall Churches the Election hath beene both by Deane and Chapter as of Wells and by the Pryor and Covent at Bathe and in the Sea of Coventry and Lichsield And in some other Cathedrall Seas the Election of the Byshop haue beene by two severall Deanes and Chapters as in the Archbyshopricke of Dublin in Ireland where both the Deane and the Chapter of Christs Church and the Deane and Chapter of Saint Patricks joyned in Election and both of them vsed to confirme the grants of the Byshop although Christs Church was knowne to be the more ancient Church to that Sea As concerning therefore the Election of Archbyshops and byshops the Kings of this Realme of their prerogatiue royall and being immediate Patrons of the same Cathedrall Church in ancient time gaue and bestowed of their imperiall Inrisdiction Archbyshopricks and Byshopricks to such worthy parsons as they thought fit without any Election of the Chapter as appeareth in the 17. E. 3. 46. Stower and this inuesture was by a ring and a little staffe by the Deliuerie of the King and Ensignes of the Byshop but afterward in the time of King Iohn in as much as the Popes had made constitution that no man should enter into the Church by a secular person totally and that the Bishop of Rome coueted to erect the Popery aboue the Throne of Kings A great Controuersie was now amongst the Monkes of Canterbury vpon the death of Hubbert their Archbyshop concerning the Election of a new one and although the youngest sect of the Monkes hauing license of the King and also appointment of the King to chuse Iohn Gray one of the Byshops in this Realme for their Archbyshop yet the quarrell grew to such fervencie that it could not be quenched vnlesse from Rome where the Pope taking opportunity of such discention would not receiue any of the Elected but forced the Monkes to chuse for their Archbyshop Stephen Langhton then Cardinall of Saint Chrisogon whereof ensued the great discord betweene the King and the Pope of which such was the tyranny of Antichrist that not onely the whole Land was interdicted and so remained fiue yeares But the King was accursed and the Subiects were discharged of their obedience and oath of their allegiance to their naturall Prince and Lewis the French Kings son provoked to make warre against King Iohn vntill he were constrained to seeke peace at the hands of the Pope to yeeld his Crowne to the Legate and after fiue dayes to take it againe at the Legates hands and become feodary tenant to the Pope for the same paying an annuall sum of mony to the Church of Rome for euer but also to content his Cleargy he gaue to them alwayes free Election of Spirituall Dignities which memorable antiquitie of the Kings praerogatiue and the losse thereof is briefly touched in the 2. H. 4. 686. and more at large by the Hystories of those times and although hereby free Elections were giuen to the Cleargie yet sued they forth the Kings license to proceed to Election The Election of a Bishop thus made did not beare the name of a Bishop but was to be called Lord elect of the place or Bishoprick to which he was elected The second is ConfirmatioÌ„ which was vsually made by the Bishop of Rome and not any other who before such confirmation vsed to examine the partie and vpon cause of nonabilitie to refuse him The third is Consecration which was performer by the Bishop and two other Bishops at the least of the same province where the Bishoprick then was being thereunto appointed with the vse of certaine Ceremonies as beatitudes holding of the Bible ouer the head of the Parson to be Consecrated laying on of their hands vpon his head anointing and other rites therevnto requisite And yet it is said that the Pope reserued the consecration of the Bishop to himselfe after election and confirmation and before creation and Consecration he that was so elected and consecrated might still retaine the name of his former dignity and if hee would refuse the imposed charge of the Bishopricke And yet after Confirmation and before consecration of the parson confirmed hee might exercise so much of his Spirituall function as concerned the Iurisdiction but no matters concerning Ordination might he meddle with for the full vnderstanding whereof it is to bee knowne that all things belonging to the Episcopall function or Ministery are to be reduced to three points for they belong to him either Ratione Iurisdictionis as the hearing of spirituall causes Censures and Corrections ecclesiasticall as Excommunications vpon offenders and such like which may be performed by him after confirmation Or Ratione Ordinationis as giuing of Orders consecrating or allowing of Churches or such like which he cannot doe before consecration Or Lege Diocesiana as the execution of Ecclesiasticall payments and pensions due to him as dioclesian of the Clargie rated vpon the bishoppricks of his Diocesse called therefore by the common Law census Cathedraticus Notwithstanding the King may restore to him his Temporalties after confirmation and before consecration if so it please his highnesse but this is De gracia non deiure But after Consecration he was holden in all respects a perfect Bishop and all his former dignities thereby were avoided for although by Confirmation spirituale coniugium contrahetur yet by consecration consumatur The last thing is Installation or inthronation by which he is fully enabled to pursue his Temporalties out of the hands of the King and actually to enioy the benefit thereof but if after consecration and
before he sue for the temporalties out of the hands of the King the free-hold bee in him or not is diueâ—sly taken in the 38. E. 3. â—0 â— 5. Notwithstanding the Metropolitan ought to certifie the day and time of the consecration of euery Bishop within his Diocesse for according therevnto he shall be restored to his Temporalties and this I thinke to be reason Thus you see that in some respect the Election of a Bishop resembleth the Presentation of a parson the Confirmation resembleth the Admission of a parson the Creation resembleth the Institution of a parson and the Installation or the inthronation the Induction of a parson yet in many other respects they differ And although after the abrograting of the Popes authoritie out of this Realme it be ordained by the 25. H. 8. cap. 20. that the election of Bishops and Archbishops should be altered and the King restored to his ancient prerogatiue therein which prerogatiue King Iohn and his ancient progenitors long since enioyed and although likewise the Ceremonies forme and manner of consecration of Bishops by the Authority of parliaments in the time of King Ed. the sixt were now appointed and published all acts of parliament being repealed by the first and second of Philip and Mary are now reviued and in force by Eliz. yet our former position holds now firme Law that no Church nor Spirituall Dignitie at this day becommeth voyde by king the Incumbent thereof Byshop vntill his Consecration as well by rigour of ancient time as by Statute And therefore at the Common Law if the King vpon defect or otherwise giue by vertue of the 25. H. 8. 20 by his Letters pattents to any fit parson any Byshopricke or Archbyshopricke within this Realme without Election and therevpon before Consecration restore to him his Temporalties or if the Pope had giuen a Byshopricke to any fit person by reseruation which amounteth in Law to an Election and Confirmation if the King had restored to him his Temporalties yet in both cases vntill Consecration he is no perfect Byshop nor his former Dignities by such Grant and restitution of Temporalties become voyde vntill Consecration as aforesaid If before the 25. of H. 8. 10. the Incumbent of a Benefice had beene Elected Byshop and confirmed and before consecration had obtained of the Byshop of Rome a dispensation still to enioy his former benefice notwithstanding his Creation or Consecration had ensued accordingly yet by such Creation the Church should not haue beene voyde but the partie still enabled to retaine the same Benefice against the patron by vertue of such Dispensation So at this day if an Incumbent of a Spirituall Benefice be elected and confirmed and before hee bee consecrated obtaine licence or dispensation of the Archbyshop of Canterbury to detaine the Benefice incommendam yet hee shall be promoted to the same Byshopricke although his licence neuer bee enrolled in the Chancerie according to the 25. H. 8. but onely enrolled by the Register of the Archbyshop although the Consecration be before this licence or dispensation appointed to take effect yet by vertue of such Dispensation the former Dignitie or Benefice becommeth not voyd by the same Consecration Yet if the Iâ—eumbent of any Spirituall benefice be elected consecrated and confirmed Byshop and after his Consecration procureth a Dispensation of the Pope in papacie or of the Metropolitan since the Stat. of the 25. H. 8. c. 20. such Dispensation shall not be available because by the Consecration the former Dignity or Benefice was actually and in Deed voyd and then neyther the Dispensation of the Pope could at any time nor of the MetropolitaÌ„ at this time take from the Patron the right of his presentation of such avoyded Dignitie by the Consecration acrewed to him because after the first Dignitie is once voyde by the Consecration the Dispensation commeth too late Yet the King Ex summa authoritate sua Regia Ecclesiastica qua fungitur may grant to the Byshop that is consecrated power to take and receiue by presentation Institution and Induction any Spirituall Benefice and to hold the same in Commendam notwithstanding his estate of being Byshop for so the Pope vsed to doe and the same Authority is recognised by the Statute of the 25. H. 8. to be in the King or Queene of this Land which was within this Realme by the Pope Finally this is to be noted that whereas before it hath bin said that Deprivation is the act of the Law yet grounded vpon the act of the partie So is Creation of the Byshop the act of the Law wherefore if a man bring an action and pendant his writ bee created Byshop the writ shall not abate because it is onely the act of the Law but yet Resignation is meerely the act of the party thus much for Creation FINIS Tull Offiâ— lib. 1. Quid. Fitzh N. Br. 30. Ibid. 33. a. 31. E. Ib. 34. 9. E. 14. H. 3. Fetzh quare Imp. 183. Summa hoâ—stènsis dâ— jure patrono SuÌ„ma Anglse eod tit SuÌ„ma Siluestrinae tit Patronatus 34. H. 6. 40 v. Asliton Iohan. Bellonius de et imologijs 34. E. 3. Fitzh Qu. Imp. 187. â—â—â—ma hostieus tiâ— ius Patronas I. Honos Onus Vtilitas Breuia 33. H. 6. 34 b. 35 a. act 13. E. 3. 15. b. 33. H. 6. 33. a. 5. H. 7. 36. b. 37. a. Fitzâ— 1â— br 217. b. 12. H. 8. 7. b. per Pollyard Com. 284. a Com. 487. b Bracton Jus. 2. H. 7. 36. Ratio 1. 12. H. 8. 7. b 21. H. 7. 4. ae Ratio 2. 31 â— 3. Graunt 90 Anuitie 53. Ratio 3. Fitzh Release 57. â—ur ven 6. 33. aide â—â— Roie 103. 7. H. 6. 38. b 8. H. 6. 24. 21. H. 7. 44 7. H. 4. 16. â— 11. H. 5. â— 8 b. 14. H. 8. 31. â— Fitzh 30. b 38 â— 6 20 a. Per Porâ—escue Com. 157. â— 45. E. 3. 19. b 32. H. 6. 3â— a. 7. H. â— 13 b. Fitzh fol. 34. f. 9. E. 3 43. E. 3. 16. 20. E. 4. 15. b 5. H. 7. 17. b 6. H. 7. 3. a. 12. H. 7. 16. a 26. H. 8. 2. a 33. H. 6. 34. b. Com. 176. v 21. E. 3. 5. a 40. E. 3. 44. b. 42. E. 3. 7. b. 1. H. 4. 16. a. 33. H. 6. 34. b. 5. H. 7. 37. 14. H. 7. 26. a. 15. H. 7. 8. 43. E. 3 15. b 33. H. 6. 35. 5. H. 7. 33. b. 33 H 6. 35 b. 5. H. 7. 37 b. 15. H 8. a. 5. H. 7 37. On. 38 b. 20. E. 4. 15 b 5. H. 7 38. 15. H. 7. 8 a. 7 E 4 6. Fitzh 29 3 1 49. d 3. H 7. 5 a. 19. E. 2. Fitzh Qu. Imp. 177. Fitzh 3. b. 32. H. 6. 11 b. 14 H 6. 15 b. Fitzh 30. v. 7 E. 3. 30 b Fitzh 31. b. 14 H. 6 15 b. 33 H 6 11 b. 5 H 7 7 b. 14 H. 6 15 b Fitzh 11 br 39. 29 E 3 5. b. 9 H 6. 57 a 32 H 6 22 a. 5 H 7 36. a 37 b 12. H 8 a. 8 E 3. Fitzh recouery in value 11 9. 33 H 6. 4. Lit. 20 E. 4. 15 a. 8 H. 7 4 b. Com. 161 â— 5. H. 7. 6. 5. â— 7 37. a. 13. a 11 E. 4. 11. v. 2â— E. 4. 15 b. Fitzh 33. k â— 10. H. 7. 19 33. H. 6 4. b. lib. vlt. 34. â— 3. Quare â—â—p Fitzh 10. 9. E. 6. 5. 9. b. 20. Dyer 14 H. 6. 25 b. Fitzh 39 â—2 H. 6. 64. b. 33. H. 6. 11 12. a. 6 â— 6. 74. b 44. Dyer 18 E. 3 â—5 41 H. 4. Fitzh 88. 33. H. 6. 5. a. fine 5. H. 7. 10. a Fitzh feofments and feof 115. 17. E. 3. 45 18 19 21 22. E. 3. 6. b 7. a. Thorpe Fitzh 32 â— 43 E. 3. 26. b or v. Thorp 17. E. 5. a. Mombray Com. 170. b. 16 H. 7 13 b 9 b. 17 E 3 51 â— 20. E. 4. 6. b. 11 H 6. 32. b 5. E. â— Qu. Imp. 165. 178. 7. E. 3 12 a. 51. a. 16. E. 3. w dâ— faits 11 6 5. E. 3. 26 b. 11 H. 6. 18 b. 31. H. 6 14. a. Fitzh 33. v. t. 34 35. f. 2. E. 3. Grants 89. 56 Dyer 35 7 E. 4. 61. a 75 a 11. H 6 18 a. 32. b. 17. E. 3. 51. â— 11. H 6. 18 32. b. â— 11 H. 6. 18 22. 8 H. 7 16. Com. 169 b 43 E 3. 30 a. Fitzh Qu. I 〈…〉 p. 13 33. E. 3. Fitzh aid le Roy 103. Ibid. Fitzh 103. Ratio 1. 22. H 6 33 lib. fund leg 70. 2. Ratio 2. 9. H 6. â—8 or 8. b. 38. H. 6 33 a 39. b. 10. H. 7. 19 a Keeble Ratio 3. 5 H. 7. 36 a 38 a 4. E 4 36. b â—it 184. 9. E. 4 39. b 5 H. 7. 5. H 7. 4. b 21 E. 4. 32. b 19. Ass 10 8. H. 7. 6. 1. E. 4 10. a. 18 H. 7 12 b 11 H. 6. 81 21. Ass 53. Br. incid 34 12. E. 288. 1. Reason Answered Fitzh 181. 44 E 3 bre 581 5. H 7 37 b. 9 H 6 28 b â—3 H. 6. 39. 38. H. 6. 38. a. 3. Reason Answered 19. E. 3. Fitzh br 884. Regist 228. br incid 38. P. 39. 39. Eliz. Rot. 2024. Longs case in Com. bank 5. E. 6. 70. Pl. 41. Dyer Iudgement Bracton lib. â— â—â— 55. C. 23. 38. H 6. 38 b. 38. a. â—4 E. 3. 69 a. b. 14. H. 4 11. a. 1. H. 5 16. â— 4. 123. a. 21. H. 6. 17. Fitâ—b 33. b 14. H. 4. 11. a. 21. H. 6. â—7 a. 24. E. 3. 69 b. Com. 526. â—1 E. 3. â— â— 1. 2. 14. H. 8. 8. a 38. â— 3. 30 b. 5. â— 2. Fitzh 800 2 E 3 Fitzh bre 250 21 â— â— 5. 6. 41 E 3 56 46 â— 3. 32 â—