1 by Death 2 by Creation 3 by Resignation 4 by Deprivation 5 by Cession as by taking a Benefice Incompatible Co. Lit. f. 120. a. Doder pa. 7. If a Church be Litigious as where two Patrons present to the same Church When the Bishop may award a Jure Patronatus by several Titles and the Bishop knows not which hath the very true and rightful Title to the same and so knows not which Clerk to admit with safety least by admitting the one and refusing the other he become a disturber in this Case the Bishop may award a Jure Patronatus to inquire who is the true and undoubted Patron and who ought to present to the Church for that turn and this Writ is usually obtained at the Prayer of one or both Parties to such Commissioners as the Bishop thinks good to name who send their Mandate to some Officer of their own to summon a Jury who are to be one half Clerks and the other half Lay-men and after they are sworn they hear the Evidence and are to give their Verdict to the Commissioners but the Bishop is not bound to award this Writ ex Officio but at the Prayer of the parties 8 E. 4. 24. b. per curiam 5 H. 7. 20. b. per Reeble 22 H. 6. 30. per Mark 34 H. 6. 40. 35 H. b. 19. b. vide Rolâ—'s Case 2 part f. 384 P. 1 2 3 4 5 6 7 8 9 10 11 12. P. 26 Eliz. C. B. Gerrard's Case Leon. Rep. 2 part f. 168. pl. 205. Deg. cap. 3. But note the Verdict upon this Inquest is neither binding to the Bishop The Verdict upon a Jure Patronatus not binding nor the parties in some respects for the Bishop may accept the Clerk of him against whom the Verdict doth pass if he please but then it is at his Peril for if the other party bring a Quare Impedit and recover then the Bishop will be found a disturber but if the Bishop admits the Clerk of him for whom the Verdict is given then if the other bring a Quare Impedit and recover yet if the Bishop plead this special matter it shall excuse him though it bind not the other parties right and of this Opinion was my Lord Hobbert in his argument in the Case between Sir William Elvis Knight and the Archbishop of York and Taylor and Bishop Hob. Rep. f. 317 318. CHAP. VI. Of Pluralities Dispensations and non residence If one have a Living with cure of eight pounds vallue aâ—d accept aâ—other the first is void NOte that by the stat 21 H. 8. it is enacted that if any Person or Persons having one Benefice with cure of Souls being of the yearly value of eight pounds or above accept and take any other with cure of Souls and be Instituted and Inducted in possession of the same that then and immediately after such possession had thereof the first Benefice shall be adjudged void and it shall be Lawfull for every Patron having the Advowson thereof to present another and the Presentee to have the benefit of the same in such manner and Form as though the Incumbent had dyed or resigned any Licence Union or other Dispensation to the contrary notwithstanding 21 H. 8. cap. 13. the yearly value of eight pounds or above is usually taken to be according as Benefices were rated in the 26 of H. 8. and is now made use of in the first fruits office but some hold that it shall be taken according to the very true improved value Ideo Quaere vide pa. 128. Who may have Plurality of Livings But there is a Proviso in the same Statute that all Spiritual Men which are of the King's Council may purchase Licence or Dispensation to take and keep three Parsonages or Benefices with cure of Souls and that all others being the King's Chaplains and not sworn of his Council and the Chaplains of the Queen Prince or Princess or any of the King's Children Brethren Sisters Uncles or Aunts may purchase Licence or Dispensation to receive and keep two Parsonages or Benefices with cure of Souls and so the eight Chaplains of every Archbishop the six Chaplains of every Duke the five Chaplains of every Marquess and Earl the four Chaplains of every Viscount the six Chaplains of every Bishop the three Chaplains of the Chancellor of England and of every Baron and Knight of the Garter the two Chaplains of every Dutchess Marchioness Countess and Baroness being Widows the two Chaplains of the Treasurer and Controller of the King's House and of the King's Secretary Dean of his Chapel Almner and Master of the Rolls may also procure Licence or Dispensation to receive and keep two Parsonages or Benefices apiece with cure of Souls 21 H. 8. cap. 13. and the Chief Justice of the King's Bench and Warden of the Cinque Ports may keep one Chaplain apiece who may Purchase Licence or Dispensation to receive and keep two Parsonages or Benefices with cure of Souls and so may the Brethren and Sons of all Temporal Lords and of every Knight who are born in Wedlock and all Doctors and Batchellors of Divinity Doctors of Law and Batchellors of Law Canon and every of them which shall be admitted to any of the said degrees by any of the Universities of this Realm and not by Grace only may also purchase Licence or Dispensation to receive and keep two Parsonages or Benefices with cure of Souls and it is provided that every of the Chaplains abovesaid so purchasing Licence and Dispensation to receive and keep Benefices with cure of Souls as abovesaid shall be bound to have and exhibite where need shall be Letters under the sign and Seal of the King or other their Lord and Master testifying whose Chaplains they be or else not to enjoy any such Plurality of Benefices by being such Chaplains 21 H. 8. cap. 13. None to take more Chaplains then above Limited to advance them to Plurality of Benefices Note that it is provided that no Person or Persons to whom any number of Chaplains or Chaplain by any of the Provisions aforesaid is Limited shall in any wise by colour of any of the same Provisions advance any Spiritual Person or Persons above the number to them appointed to receive or keep any more Benefices with cure of Souls than is above Limited and if they do then every such Spiritual Person and Persons so advanced above the said number to incurr the pain and penalty contained in the said Act and it is further provided that every Dutchess Marchioness Countess and Baroness Widdows that shall take any Husbands under the degree of a Baron may take such number of Chaplains as is above Limited to them being Widdows and that every such Chaplain may purchase Licence to have and take such number of Benefices with cure of Souls in manner and Form as they might have done if their said Ladies and Mistresses had kept themselves Widdows 21 H. 8. cap. 13.
327. a. pl. 4. Not Reading the Artiâ—les c. makes the Living â—oiâ— Note this Case following one Higden was lawfully Presented Admitted Instituted and Inducted into the Rectory of Wringlington in Somerset shire being a Benefice with Cure of Souls of Fifty pounds Per annum and in the King's Books but of Five pounds Per annum and afterwards he was lawfully Presented Admitted Instituted and Inducted into the Rectory of Elme in the same County of Forty pounds Per annum and but Ten pounds in the King's Books and Subscribed the Articles of Religion according to the Act 13 Eliz. Cap. 12. and was lawfully Incumbent of the said Rectory of Elme but after did not read the Articles of Religion within two Months after his Induction to the Church of Elme according to the Act 13 Eliz. And in this Case it was Adjudged that Higden had lost both his Livings for as to the first Living if a Man have a Benefice with Cure of Souls whatsoever the value be and is Admitted and Instituted into another Benefice with Cure of what value soever having no Qualification or Dispensation the first Benefice is so ipso facto void that the Patron may present another to it if he please but if the Patron do not or will not present to it then no Lapse shall Incur if the Living be under value until deprivation of the Incumbent and notice thereof given to the Patron but if the Living be of the value of Eight pounds or above the Patron at his Peril is to present within Six Months by the Statute 21 H. 8. and as to the Second Living by his not reading the Articles he stands deprived ipso facto and so both are lost H. 22 23. Car. 2. C. B. Shute and Higden's Case Vaugh. Rep. f. 129. Note that a Dispensation granted by A Dispensation good though not Inroâ—â—ed the Arch-bishop of Canterbury to one who is Created Bishop to hold a Benefice in Commendam although it be not Inrolled in Chancery according to the Statute 25 H. 8. but is only entered in the Register of the Arch-bishop yet it is good enough and so it was Adjudged M. 6. 7. Eliz. C. B. in the Case of John Parkhurst Bishop of Norwich Dyer f. 233. a. Doder pa. 94. A Dâ—spensation after Consecration is too late But such Dispensation must be before Consecration or else it comes too late yet the King ex summa Authoritate Ecclesiastica qua fungitur may Grant to the Bishop that is Consecrated power to take and Retain by Presentation Institution and Induction any Spiritual Benefice and to hold the same in Commendam notwithstanding his Estate of being Bishop for so the Pope used to do and the same Authority is acknowledged by the Statute 25 H. 8. to be in the King of this Realm which was within this Realm by the Pope Doder pa. 95. By the Statute 13 Eliz. None shall Who qualified for a Living of Thirty pounds c. be admitted to any Benefice with Cure of or above the value of Thirty pounds yearly in the Queens Books unless he be a Batchellor in Divinity or a Preacher lawfully Licensed by some Bishop within this Realm or by one of the Universities of Cambridge or Oxford 13 Eliz. cap. 13. Acceptance of Three Benefices the first only void If a Parson have a Benefice of above the yearly value of Eight pounds and afterwards he takes another Benefice with a Dispensation and after this he takes a Third Benefice his first Benefice is only void Adjudged per Curiam M. 5. Jac. C. B. Godb. Rep. pa. 153. pl. 201. but it said by Heron in Noye's Rep. that both the first and second shall be void vide the King and the Bishop of Chichester's Case Noye's Rep. f. 149. A Suffragan Bishop capable of plurality By the Statute 26 H. 8. every Bishop's Suffragan exercising the Office by the Bishop's Commission for the better maintenance of his Dignity may have two Benefices with Cure 26 H. 8. cap. 14. and note that the Eight pounds value of a Church shall be according to the valuation in the King's Books and not according to the Improved and just value 8. Car. 1. C. B. Drake and Hill's Case Cro. Car. f. 456. there cited to have been so Adjudged Note by the Statute 21 H. 8. It is The penalty of Non-residence enacted that every Spiritual Person promoted to any Arch-deaconry Deanry or Dignity in any Cathedral Church or other Church Conventual or Collegiate or being Beneficed with any Parsonage or Vicarage shall be Personally Resident and abiding in at and upon his said Dignity Prebend or Benefice or at one of them at the least and in Case that any such Spiritual Person keep not Residence at one of his said Spiritual Dignities Prebend or Benefices as aforesaid but absent himself willfully by the space of one Month together or by the space of two Months to be accounted at several times in any one year and make his Residence and Abiding in any other places by such times then he shall forfeit for every such default Ten pounds Sterling the one half thereof to the King's Majesty and the other half to the Party that will Sue for the same in any of the King's Courts by Original Writ of Debt Bill Plaint c. 21 H. 8. cap. 13. But it is provided that this Act of Who excuseable for Non-residence Non-residence shall not in any wise extend nor be prejudicial to any such Spiritual Person as shall chance to be in the King's Service beyond the Seas nor to any Person or Persons going to any Pilgrimage or Holy place beyond the Sea during the time that they shall be so in the King's Service or in the Pilgrimage going and returning home nor to any Schollar or Schollars being Conversant and abiding for Study without Fraud or Covin at any University within this Realm or without nor to any of the Chaplains of the King 's or Queen's daily or quarterly attending and abiding in the King 's or Queen's most Honourable Households nor to any of the Chaplains of the Prince or Princess or any the King 's or Queen's Children Brethren or Sisters nor to any Chaplain of any Arch-bishop or Bishops or of any Spiritual or Temporal Lords of the Parliament nor to any Chaplain of any Dutchess Marquess Countess Vicecountess or Baroness nor to any Chaplain of the Lord Chancellour or Treasurer of England the King's Chamberlain or Steward of his Household for the time being nor to any Chaplain of any of the Knights of the honourable Order of the Garter or of the Chief Justice of the King's Bench Warden of the Cinque Ports or of the Master of the Rolls nor to any Chaplain of the King's Secretary and Dean of the Chapel or Almner for the time being dayly attending and dwelling in any of their Honourable House-holds during the time that any such Chaplain or Chaplains shall abide and dwell
March's reports Moor's reports N. Noye's reports O. Owen's reports P. Poulton's Statutes Plowden's Commentaries Phopham's reports R. Rastall's Statutes Register Roll's reports 1 part Roll's Cases 1 and 2 part S. Savill's reports Swinburus Wills c. V. Vaughan's reports W. Winch's reports Wingate's Statutes Yelverton's reports A Catalogue of the several Statutes or Acts of Parliament made use of in this Treatise H. 3. MAgna Charta cap. 14. Marlebridge cap. 10. E. 1. Circumspecte Agatis Stat. of Winchester Ne Rectores prosternerunt arbores c. E. 2. Articuli Cleri cap. 1. 3 and 4. E. 3. 50 E. 3. cap. 5. H. 7. 1 H. 7. cap. 4. 7 H. 7. cap. 13. H. 8. 21 H. 8. cap. 6. 21 H. 8. cap. 13. 25 H. 8. cap. 19. 25 H. 8. cap. 21. 26 H. 8. cap. 3. 26 H. 8. cap. 14. 27 H. 8. cap. 8. 28 H. 8. cap. 11. 28 H. 8. cap. 13. 32 H. 8. cap. 22. 32 H. 8. cap. 28. 33 H. 8. cap. 28. 37 H. 8. cap. 21. E. 6. 1 E. 6. cap. 1. 2 and 3. E. 6. cap. 1. 5 E. 6. cap. 4. 5 and 6. E. 6. cap. 1. 5 and 6. E. 6 cap. 4. 7 E. 6. cap. 4. Q. M. 1 Mar. Sess 2. cap. 3. 2 and 3. P. M. cap. 4. Q. Eliz. 1 Eliz. cap. 1. 1 Eliz. cap. 4. 1 Eliz. cap. 19. 5 Eliz. cap. 1. 5 Eliz. cap. 5. 13 Eliz. cap. 2. 13 Eliz. cap. 5. 13 Eliz. cap 10. 13 Eliz. cap. 12. 13 Eliz. cap. 20. 14 Eliz. cap. 7. 14 Eliz. cap. 11. 18 Eliz. cap. 11. 31 Eliz. cap. 6. 35 Eliz. cap. 1. Jac. 1 Jac. cap. 3. Car. 2. 12 Car. 2. cap. 14. 13 Car. 2 cap. 1. 14 Car. 2. cap. 4. An Alphabetical Table of the several Cases cited in this Collection A. ACton and Pitcher 276 Agard and B. of Peterborough and Denton 141 Albany and Bishop of S. Asaph 3 149 Arrundel and Bishop of Gloucester and Chaffin B. Babington and Wood 220 Baker and Rogers 212 Baldock's Case Sir Robert Bannister's Case 286 Bawderock and Mackaller 212 Bayly and Murnes 292 Baskervil's Case 137 Belfore and Foord 285 Bellamie's Case 110 Bennifield and Pickering 151 Bennet and Edwards 132 Birt and Manning 217 Boughton and Gousley 196 Bunny and Wright and Stafford 280 Buck's Case 216 Broom and Hudsons 195 C. Calvert and Kitchin 136 Canning and New-man 195 Archbishop of Canterbury and Corn-Wall 138 Bishop of Carlisle and Whitton 149 Carter and Croft 17 Catesby's Case 174 Cary and Yeo 222 Chaffin's Case 285 Bishop of Chichester and Freeland 289 Cholmly's Case 118 Cornwall's Case 138 Corven and Pim 109 Costard and Winder 294 Cox's Case 180 Crane and Tayler 268 Creswick and Rookby 105 Cross and Stanhope 105 Cumber and Bishop of Chichester and Green 138 D. Dalton and Pamphlin and Bishop of Ely 156 Dothick's Case 116 Digby's Case 147 Dobbins and Gerrard 292 Draper and Stone 107 Dodson and Line 143 E. Edes and Bishop of Hereford 124 Elmer and Gale 273 Parishioners of Ethelborough's Case 108 Bishop of Ely's Case 289 Sir William Elvis and Archbishop of York and Tayler 159 Evans and Ascough 145 Evans and Heister 291 Evelin's Case 107 Eytru's Case 297 F. Fairbanck and Durham 131 Fairchildand Gair 144 and 155 Flemming's Case 37 Sir Godfry Foliamb's Case 129 Fox and Collyer 278 Freeman and English 216 G. Gerrard's Case 158 Goodale and Butler 194 Gosnall and Kindlemarch 298 Green and Guy 179 Gregory and Oldbury 214 H. Hare and Buckley 17 Harris and Hayes and Nichols 127 Hele's Case 124 Bishop of Hereford's Case 141 Dean and Chapter of Hereford and Bishop of Hereford 296 Higden's Case 30 Hind and Bishop of Chester 259 Hitchin and Glover 130 Holland's Case 146 147 Hutchinson's Case 226 Hunt and Singleton 282 I. Jackson's Case 271 Jefferies and Kenshly and Foster 111 Jones and Lawrence 219 Jurden's Case 132 K. The King and Bishop of Chichester 183 The King and Champion 132 The King and Emmorson 118 The King and Bishop of London and Baldock 147 The King and Bishop of Narwich and Cole and Saker 212 The King and Bishop of Worcester 146 Knowles and Dobbins 17 Knowles and Hargrave's 251 L. Lancaster and Low 151 Leak and Bishop of Coventry and Babington 126 Bishop of Lincoln's Case 138 Earl of Lincoln and Hoskins 298 M. Mabie's Case 296 Mackallor and Toddericks 223 Marler and Wright and Green 279 Marrow 's Case 291 Martin and Gunniston 305 Martin's Case 198 Mawnd and French 287 Morgan and Glover 179 Mot and Hales 292 P. Palmer and Smith 154 Palmer and Munson 115 Paget's Case 112 Paget and Crompton 111 Palmer and Thorp 95 Parkhurst's Case 182 Pascall and Clerk 221 Penhallow's Case 116 Perchall's Case 116 Pescod and Yardley 131 S. John and Pettit's Case 298 Phips and Hayter 147 Sir Edmund Plowden and Oldfield 286 Q. The Queen and Blancher 245 The Queen and Bishop of Lincoln 138 The Queen and Bishop of Lincoln and Cock 151 The Queen and Bishop of Gloucester and Savaker 171 The Queen and Bishop of Lincoln and Drewry 172 The Queen and Bishop of Lincoln and Skiffin 173 The Queen and Bishop of Peterborough and Acton 176 The Queen and Bishop of Salisbury al. 175 R. Reyner and Parker 244 Riersby and Wentworth 214 Rickman and Garth 295 Robins and James 179 Robins and Gerrard and Prince 179 Parishioners of Rovenden's Case 107 S. Saccar's Case 250 Sale and Bishop of Coventry and Litchfield 296 Bishop of Salisbury's Case 141 and 250 Scot and Nicholas and Brewster and Stubbing 278 Searl and Williams 98 Sheldon and Brett 244 Shepherd and Twoulsy 194 Shute and Higden 30 and 181 Smalwood and Bishop of Coventry and Litchfield 132 Smith and Shelborn 216 Smith and Bowles 284 Smith and Clayton 121 Smith and Clerk 30 Specot's Case 140 Searl's Case 140 Stanford and Hutchinson 212 Stockman and Withers 250 Starkey and Brown 66 T. Talentire and Denton 295 Tomlinson and Crook 285 V. Viner and Eaton 115 Underhill and Savage 179 W. Waller and Scott 135 Walker and Lamb 289 Walter and D. and C. of Norwich 282 Watkinson and Man 176 Webb and Hargrave 220 Wheeler and Danby 300 Whetston and Hickford 172 Whistler and Singleton 131 Woody and Bishop of Exeter and Mannering 145 Dean and Chapter of Worcester 274 Wright's Case 123 Wright and Bishop of Norwich 135 Lady Wyche Case 108 Winchcombe and Bishop of Winchester al. 214 Windsor and Archbishop of Canterbury al. 128 Y. Young and Steel 289 THE CONTENTS OF THE CHAPTERS CHAP. I. WHat Qualifications are required by Scripture and Law in such Persons as intend to enter into the Ministry and also a Word or two concerning Ordination and what the Canon requires as to the apparell and behaviour of Clergy-men pa. 1. CHAP. II. What things are required both by the Laws of this Kingdom and the Canons in force to be observed and performed by Ministers upon and after their Admission Institution and Induction to a Living with some
sort to all Intents and Purposes as if the party so Inducted c. were naturally dead one Moiety of which forfeitures shall be to the Queen her Heirs and Successors and the other Moiety to the party that will sue for the same in any of her Majestie 's Courts of Record 13 Eliz. cap. 6. Cave quid solvis All Ministers are to be Consecrated according to the Book of Common-Prayer All Ministers are to be made and Consecrated according to the Book of Common-Prayer as it is now settled and he that is otherwise made or present at any other making of them then according to that Book and shall be thereof Lawfully Convicted by Verdict of Twelve Men or by his or their Confession or otherwise for the first Offence shall be Imprisoned six Months without Bail for the second Offence one whole Year and for the third Offence during Life 5 and 6 E. 6. cap. 1 and vide 14. Car. 2 cap. 4. None is to be admitted either Deacon None to be admitted Deacon or Priest except he exhibiâ— to the bishop a Presentation â— of himself to sâ—me Ecclesiastical preferment c. or Priest except he exhibit to the Bishop of whom he desireth Imposition of Hands a Presentation of himself to some Ecclesiastical Preferment then void in that Diocess or shall bring to the said Bishop a true and undoubted Certificate that either he is provided of some Church within the said Diocess where he may attend the cure of Souls or of some Minister's place Vacant either in the Cathedral Church of that Diocess or in some other Collegiate Church therein where he may Execute his Ministery or that he is a Fellow or in right as a Fellow or to be a Conduct or Chaplain in some College in Cambridge or Oxford or except he be a Master of Arts of five Years standing that liveth of his own charge in either of the Universities or except by the Bishop himself that Ordains him he be shortly after to be admitted either to some Benefice or Curateship then void And if any Bishop shall admit any Person into the Ministery that hath none of these Titles then the Bishop is to keep and maintain him till he do prefer him to some Ecclesiastical Living And if the Bishop refuse to do so the Archbishop assisted with another Bishop may suspend the said Bishop from giving of Orders by the space of a Year Can. 33. No Person to be admitted into Orders except he exhibit Letters Testimonial of his good Life and Conversation c. No Bishop is to admit any Person into Orders which is not of his own Diocess except he be either of one of the Universities of this Realm or bring Letters Dimissory from the Bishop of whose Diocess he is and exhibit Letters Testimonial of his good Life and Conversation under the Seal of some College in Cambridge or Oxford where he remained or of three or four Grave Ministers with other credible Persons who have known his Life and Behaviour by the space of three Years beford and be able to yield an accompt of his Faith in Latine according to the Articles of Religion approved in the Synode of the Bishops and Clergy of this Realm 1 Inno Dom. 1562. And desiring to be â— Deacon is twenty three Years Old and to be a Priest twenty four Years compleat Can. 24. and 13 Eliz. cap. 12. and vide Co. Inst 4 part f. 324. None to be admitted into Holy Orders without Examination The Bishop before he admit any Person into Holy Orders is either to examine such Person himself or cause some Ministers of his Diocess to examine him and if any Bishop or Suffragan admit any to Sacred Orders who is not qualified and examined then the Archbishop of that Province with the assistance of another Bishop may suspend such Bishop or Suffragan so offending from making either Deacon or Priest for the space of Two Years Can. 35. None is Preach without Licence and Subscriptions first 〈◊〉 and made And note that none are to be received into the Ministery nor suffered to Preach Catechise or to be a Lecturer or Reader of Divinity in either Universitie or in any Cathedral or Collegiate Church City or Market-Town Parish Church Chappel or in any other place except he be Licenced either by the Archbishop or Bishop of the Diocess where he is so placed under their Hands and Seals or by one of the two Universities under their Seal and do first subscribe to these three Articles following viz. First That the King's Majesty under God is the only Supream Governor of this Realm and of all other his Majestie 's Dominions and Countries as well in all Spiritual or Ecclesiastical things or Causes as Temporal Secondly That the Book of Common-Prayer and of ordering Bishops Priests and Deacons containeth in it nothing contrary to the word of God c. Thirdly That he alloweth of the Book of Articles of Religion made in the Year 1562. and acknowledgeth them to be agreeable to the word of God c. Which Subscription is thus to be made by such Persons as shall enter into Orders viz. I. A. B. ' do willingly and ex Animo Subscribe to these three Articles above mentioned and to all things that are contained in them And if any Bishop Ordain Admit or Licence any Person except he first Subscribe as aforesaid he may be suspended from giving of Orders and Licences to Preach for the space of Twelve Months Can. 36. vide Co. Inst 4 Part f. 324. The punishment of Revoling after Subscription If any Minister after Subscription to the said three Articles do Revolt he may be suspended and if after a Month he do not Reform he may be Excommunicated and if he submit not within the space of another Month he may be deposed from the Ministery Can. 38. 1 Such Persons as are not Episcopally The Penalty of such Persons as are admitted to any Benefice or Administer the Sacraments not being Episcopally ordained Ordained according to the Book of Common-Prayer are not capable of or to be admitted to any Parsonage Vicarage Benefice or other Ecclesiastical Promotion or Dignity whatsoever nor shall presume to Consecrate and Administer the Sacrament of the Lord's Supper before such time as he shall be Ordained Priest according to the Book of Common-Prayer upon pain of an Hundred Pounds for every offence one Moity thereof to the King and the other Moity to be divided between the Poor of the Parish where the offence is Committed and the Informer and the Person so offending to be disabled from taking or being admitted into the Order of Priest-hood by the space of one Year then next following 14 Car. 2 cap. 4. And if any do affirm or teach that The Penalty of such as affirm that the manner of making Prâ—iests c. â—s contrary to the word of God the form and manner of making and Consecrating Bishops Priests and Deacons
the Holy Communion Excepted prescribed in the said Book in Greek Latin or Hebrew and all Men as well in Churches Chapels Oratories or other places may use openly any Psalms or Prayer taken out of the Bible at any time nor letting or omitting thereby the service or any part thereof mentioned in the Book of Common-Prayer 2. 3 Eliz. 6. cap. 1. If any Person or Persons who do not Conform and are disabled to Preach The Penalty against such persons who Preach and are disabled by 14. Car. 2. by the statute of the 14 Car. 2. shall during such time as they continue so disabled Preach any Sermon or Lecture that then for every such Offence the Person and Persons so offending are to suffer three Months Imprisonment in the common Goal without Bail and any two Justices of the Peace of the County and the Mayor or other chief Officer of any City or Town Corporate upon Certificate from the Ordinary of the place to him or them of the Offence committed may commit the Person or Persons to the Goal of the County City or Town Corporate accordingly 14 Car. 2. cap. 4. The Penalty for refusing to hear Common Prayer and being present and joyning with other Religious Assemblies If any Person or Persons above the age of sixteen Years shall obstinately refuse to repair to some Church Chapel or usual place of Common-Prayer and shall forbear by the space of a Month to hear Divine Service and shall either of him or themselves or by the perswasion of any others willingly joyn in or be present at any Assemblies Conventicles or Meetings under colour or pretence of the exercise of Religion contrary to the Laws and Statutes of this Realm every Person so offending and being Lawfully Convicted are to be committed to Prison there to remain without Bail till they Conform and yield to come to some Church Chapel or usual place of Common-Prayer and hear Divine Service established according to Law and make such open Submission and Declaration of their said Conformity as hereafter follows and if the Person offending shall not within three Months after Conviction Conform and make Submission being required thereunto by the Bishop of the Diocess or any Justice of the Peace of the County where the party is or by the Minister or Curate of the Parish then such Offender shall abjure the Realm and refusing to abjure or returning again after abjuration without the King's Licence shall be adjudged a Felon and suffer as a Felon But if such party before he be warned to make abjuration do repair to some Parish Church on some Sunday or Feastival day and hear Divine Service and before Sermon time or reading of the Gospel and make open Submission then the Offender is to be clearly discharged from all the Penalties and Punishments aforesaid 35 Eliz. cap. 1. 16 Car. 2. cap. 4. Popish Reâ—usant and Feme Covert not to abjure No Popish Recusant or Feme Covert shall be compelled to abjure by virtue of the said Act 35 Eliz. and every Person that shall abjure by virtue thereof or refuse to abjure shall forfeit to the King's Majesty all his Goods and Chattels for ever and loose all his Lands and Tenements during his Life but the Wife not to loose her Dower nor any Corruption of Blood to be for any of the said Offences and the Heir to enjoy the Lands and Tenements after the Offender's Death 35 Eliz. cap. 1. The Form of Submission The Form of the Submission aforementioned is to be in these words viz. I. A. B. do humbly confess and acknowledge that I have grievously offended God in contemning his Majestie 's Godly and Lawfull Government and Authority by absenting my self from Church and from hearing Divine Service contrary to the Godly Laws and Statutes of this Realm and in using and frequenting disordered unlawfull Conventicles and Assemblies under pretence and Colour of Exercise of Religion And I am heartily sorry for the same and do acknowledge and testify in my Conscience that no other Person hath or ought to have any Power or Authority over his Majesty And I do promise and protest without any dissimulation or any colour or means of any dispensation that from henceforth I will from time to time obey and perform his Majestie 's Laws and Statutes in repairing to the Church and hearing Divine Service and to my uttermost endeavour to maintain and defend the same 35 Eliz. cap. 1. The Penalty of Relapsing after Submission Note That if after such Submission the Offender Relaps then he looseth all advantage got by his Submission and shall be in the same condition as if such Submission had never been made And every Minister or Curate of every Parish where such Submission is made is to enter the same into a Book to be kept for that purpose and within ten days then next following to Certifie the same in writing to the Bishop of the same Diocess 35 Eliz. cap. 1. this stat is declared to be still in force by the 16 Car. 2. cap. 4. Observe That the Governour or Masters of Collâ—ges c. to Subscribe to the Articles of Religion and Book of Common-Prayer c. Head of every College and Hall in either of the Universities and the Colleges of Westminster Winchester and Eaton within one Month after his Election or Collation and Admission into the said Government or Headship must openly and publickly in the Church Chapel or other publick place of the same College or Hall and in the presence of the Fellows and Schollars of the same or the greater part of them then Resident Subscribe unto the Book of Articles of Religion and declare his unfeigned assent and consent unto and approbation of the same and to the use of all the Prayers Rites and Ceremonies Forms and Orders in the Book of Common-Prayer And they must also once every quarter of a Year at least not having a Lawfull Impediment openly and publickly read the Morning Prayer and Service in and by the said Book appointed to be read in the Church Chapel or other publick place of the same College or Hall upon pein to loose and be suspended of and from all the benefits and profits belonging to the same Government and Headship by the space of six Months by the visitor or visitors of the same College or Hall and being suspended for the causes aforesaid if they do not at or before the end of six Months after such suspension Subscribe unto the said Articles and Book and declare their consent thereunto as aforesaid or read the Morning Prayer and Service as aforesaid then such Government or Headship shall be ipso facto void 14 Car. 2. cap. 4. If any Person Ecclesiastical or having Ecclesiastical Living shall advisedly The punishment for affirming any Doctrine contrary to the 39 Articles of Religion or any of them maintain or affirm any Doctrine directly contrary or repugnant to any of the nine and thirty Articles
year upon some Sunday after Evening-Prayer to reade in their Parish Churches the Statute of the 20 Jac. cap. 20. against prophane cursing and swearing and once every year upon some Sunday or Holyday in the Afternoon before Divine Service they are to reade the Book of Canons agreed upon in the Synod begun at London Anno Dom. 1603. and every Minister every year in his Church the Sunday next before the 29 day of May at Morning-Prayer is to reade the Statute of the 12 Car. 2. cap. 14. Ministers before their Sermons Lectures What Order Ministers are to observe in their Prayer before their Sermons c. and Homilies are to Pray first for the Holy Catholick-Church of Christ through the whole World and especially for the Churches of England Scotland and Ireland then for the King Queen and Royal Family next for all arch-Arch-Bishops Bishops and other Pastors and Curates of God's Holy Word and Sacraments then for the King's Privy-Council and all the Nobility and Magistrates of his Realm and for the Commons that they may live in true Faith and fear of God in humble Obedience to the King and Brotherly Charity one to another and lastly they must praise God for all those who have departed out of this Life in the Faith of Christ and must pray to God that we by Grace may learn to follow their Good Example that after this Life ended we may be partakers with them of the Glorious Resurrection of the Life Everlasting and must always conclude with the Lord's Prayer Can. 55. The Supream Ecclesiastical power in the King Note That the King hath the Supream Ecclesiastical Power in him as it hath been held and agreed and may without Parliament make Orders and Constitutions for the Government of the Clergy and may deprive them if they obey not and they can make no Canons or Constitutions without his Assent Cro. Jac. f. 37. Mo. Rep. f. 155. pl. 1043. and Vaugh. Rep. f. 329. The power of the Convecations But some Clergy-men seem to think and others do not stick to say that no Orders or Constitutions can be made to bind them but what are agreed upon in the Convocations of the Clergy therefore I think it will not be amiss to insert here the Authority of the Convocation as my Lord Coke sets it down in his fourth part of his Institutes which take as followeth he saith it is called Convocation a Convocando because they are called together by the King 's Writ and their Authority being never assembled together but by the King 's Writ was to deal with Heresies Schisms and other meer Spiritual and Ecclesiastical Causes and therein they did proceed juxta Legem Divinam Canones Sanctae Ecclesiae and as they could never assemble but by the King 's Writ so they were oftentimes commanded by the King 's Writ to deal with nothing that concerned the King's Laws of the Land his Crown and Dignity his Person or his State or the State of his Council or Kingdom and so whatsoever Act is done in the Convocation is under the Power and Authority of the King but not è contra what he doth under them see the King's Letters in the conclusion of this Chapter vide Co. Inst 4 part f. 322. 26 H. 6. 13. and 21 Eliz. 4. f. 45. a. p. Vavasour and f. 45. 6 p. Starkey and Brown and Rolls Cases 1 p. f. No Canons to be made in the Convocation without the King's Licence And the Lord Coke saith further that the King did often appoint Commissioners by writ to sit with them at the Convocation and to have Conusance of such things as they meant to establish that nothing should be done in prejudice ut supra And therefore the Statute of 25 H. 8 cap. 19. whereby it is provided that no Canons Constitutions or Ordinance should be made or put in Execution within this Realm by Authority of the Convocation of the Clergy which were contrariant or repugnant to the King's Prerogative Royal or the Customes Laws or Statutes of this Realm is but declaratory of the old Common-Law but by the said Act their Jurisdiction and Power is much lestned concerning making of new Canons for they must have both Licence to make them and after they be made they must have the King 's Royal Assent to the allowance thereof before they be put in Execution 25 H. 8. cap. 19. Co. Inst 4 part f. 323. The King's Letters of direction to the Archbishop of Canterbury concerning the Clergy The King's Majesty in his Letters and Directions to the Archbishop of Canterbury dated the fourteenth Year of his now Majestie 's Reign in the Month of October declares there to this effect First That no Preachers in their Sermons shall presume to meddle with matters of State to modell new Governments or take upon them to Declare Limit or bound out the Authority and Power of Sovereign Princes or to State and Determine the difference between Princes and People but that as they have occasion they Faithfully tell the People of their duty of Subjection and Obedience to their Governors Superior and Subordinate of all sorts and to the established Laws according to the Word of God and the Doctrine of the Church of England as it is contained in the Homilies of Obedience and Articles of Religion set forth by publick Authority Secondly That they spend not their time in the search of speculative and abstruse Notions especially in and about the deep points of Election and Reprobation the Incomprehensible manner of the Concurrence of God's free Grace and Man's free Will and such Controversies as depend thereon And that however they do not presume possitively and doctrinaly to determine any thing concerning the same Thirdly That they forbear in their Sermons ordinarily and causelesly to enter upon the handling of any other Controversies of less moment and difficulty And when occasionally they be invited by their Text or Auditory to fall into them that they doe it with all Modesty Gravity and Candor asserting the Doctrine and Discipline of the Church of England from the Cavils and Objections of such as are Adversaries to either without bitterness railing jeering or other unnecessary or unseemly Provocation Fourthly That they Catechise the Younger sort according to the Book of Common-Prayer and in their ordinary Sermons do chiefly insist upon Catechistical Doctrines containing the necessary Truths of Christian Religion and setting forth withall what Influence such Doctrine ought to have in their Lives and Conversations and stirring up the People by their Lives and Doctrine to the practice of such Religious and Moral duties as are the proper result of the said Doctrines as Self-denyal Contempt of the World Humility Patience Meekness Temperance Justice Mercy Obedience and the like and to hate and shun sin especially the sins so rife and common amongst us and more especially those usually called the seven deadly sins and all kind of Debauchery Sensuality Rebellion Prophaneness Atheisin
decree all such to be Rightly and Orderly and Lawfully Consecrated and Ordered Note that this last Article by the stat 14. Car. 2. is to be construed and taken to extend and shall be applied unto the Book containing the manner of Making Ordaining and Consecrating of Bishops Priests and Deacons which is now set forth in such sort and manner as the same did heretofore extend unto the Book set forth in the time of King Edward the sixth mentioned in the said Article 14. Car. 2. cap. 4. 37. Of the civil Magistrate Article 37 The Queens Majesty hath the chief Power in this Realm of England and other her Dominions unto whom the chief Government of all Estates of this Realm whether they be Ecclesiastical or Civil in all causes doth appertain and is not nor ought to be subject to any foreign Jurisdiction Where we attribute to the Queens Majesty the chief Government by â—hich Titles we understand the minds of some slanderous Folks to be offended we give not to our Princes the Ministering either of God's Word or the Sacraments the which thing the Injunctions also sometimes set forth by Elizabeth our Queen do most plainly testify But that only Prerogative which we see to have been given alwaies to all godly Princes in Holy Scriptures by God himself that is that they should rule all Estates and degrees committed to their charge by God whether they be Ecclesiastical or Temporal and restrain with the Civil Sword the stubborn and evil doers The Bishop of Rome hath no Jurisdiction in this Realm of England The Laws of the Realm may punish Christian Men with death for heinous and grievous Offences It is Lawfull for Christian Men at the Commandment of the Magistrate to wear Weapons and serve in the Wars 38. Of Christian Mens Goods which are not common Article 38 The Riches and Goods of Christians are not common as touching the Right Title and Possession of the same as certain Anabaptists do falsly boast Notwithstanding every Man ought of such things as he possesseth Liberally to give Alms to the Poor according to his Ability 39. Of a Christian Man's Oath Article 39 As we confess that vain and rash swearing is forbidden Christian Men by our Lord Jesus Christ and James his Apostle so we judge that Christian Religion doth not prohibit but that a Man may swear when the Magistrate requireth in a cause of Faith and Charity so it be done according to the Prophet's teaching in Justice Judgment and Truth CHAP. IV. Several cases touching the privileges of Ministers and Churches and Church Yards The punishment for laying violent Hands on a Clergy-man MAny are the privileges which the Laws of this Realm allow to Clergy Men in Holy Orders some of which I shall insert in this Chapter If one lay violent Hands upon the Person of any infra sacros Ordines such Offender may be cited into the Spiritual Court to have him Excommunicated or doe Corporal Penance But the party offending if he think good may redeem his Penance for a certain sum of money to be paid to the party grieved who may sue for the same in the Spiritual Court if it be not paid and no Prohibition will lie vide stat Articuli Cleri 9 E. 3. cap. 3 and 4. Circumspecte Agatis 13 E. 1 Regist f. 45. 49. 51 52. 54. 57. Co. Institutes 2 part f. 492. and 620. 7 H. 3. Prohibition 30. 5 H. 3. Prohibition 29. 12. H 7. f. 23. a. p. Butler Co. Rep. 4. Lib. f. 20. b. Bro. action sur Case 15. F. N. B. f. 51. R. 52. D. F. 53. A. In what Court a Minister may sue for a scandal If one call a Minister Heretick Schismatick Fornicator c. or such other words as are meerly Spiritual in such case he cannot sue in the Spiritual Court for damages but he may cite the party offending pro salute animae and he must express in particular the defamation in his Libel and for the costs of suit recovered he may sue in the same Court if they be not paid Co. Inst 2 part f. 492 493. F. N. B. 51 I. 52 M. 53. A. and see Tr. 25 Eliz. B. R. Palmer and Thorp's Case Co. Rep. 4. Lib. f. 20. a. A Minister is not bound to appear at Ministers not bound to appear to Sheriffs Tourns or Leets c. the Sheriffe's Tourns nor at Court Leets by the Statute of Marlbridge unless their appearance be especially required for some particular cause and if they be distrained to come they may have a Writ reciting the said Statute which Writ in the Register beginneth thus Cum de communi Consilio Provisum sit quod viri Religiosi non habent necesse venire ad Tournum Vicecom c. Regist f. 176 8 H. 4. f. 15. stat Marlbridge cap. 10 Co. Inst 2 part f. 120 and 121. Parsons not compellable to appear at Leets by the Common Law By the Common Law also Parsons of Churches that had curam animarum were not compellable to come to Tourns or Leets and if they were distrained to come they may have a Writ for their discharge in this Form Rex c. Cum secundum Consuetudinem Regni Nostri Personae Ecclesiasticae ratione Terrarum Tenementorum suorum Ecclesiis suis annexorum venire non debeant ad Visum Franci Pleg in curia nostra vel aliorum quorumcumque c. Regist f. 175. F. N. B. f. 160. C. Co. Inst 2 part f. 121. Men of the Church not to be amercied after the quantity of their Spiritual Benefice No Man of the Church shall be amercied after the quanty of his Spiritual Benefice but after his Lay Tenement and after the quantity of his Offence and note that the word Beneficium is a large word and his taken for any Ecclesiastical Promotion or Spiritual Living whatsoever vide Magna Charta cap. 14. and Co. Inst 2 part f. 29. The Plough Beasts of Religious Persons Their Plough Beasts not to be distrained c. or their Sheep shall not be distrained for the King's Debt nor the Debt of any other Man nor for any other cause by any Bailiffs whatsoever but untill such time as they can find another Distress or Chattels sufficient whereof they may Levy the Debt except in case of damage Feasant and such distress is also to be reasonable after the value of the Debt or demand and by the Estimation of Neighbours and not by Strangers nor outrageous stat de districtione Scaccarii 51 H. 3. vide dyer f. 312. a. pl. 86. May make their Wills of Corn sown down Spiritual Persons may make their Wills of such Corn as is sown upon the Glebe Land at the time of their death 28 H. 8 cap. 11. vide 34 H. 6. 38. The punishment for Arresting Ministers doing Divine Service No Man upon grievous forfeiture is to Arrest any Minister in Church or Church-Yard whilst he is attending Divine Service 50 E.
smite or lay violent Hands upon any other either in any Church or Church-yard then every Person so offending shall ipso facto be deemed Excommunicate and be excluded from the company of Christ's Congregation And further if any Person shall maliciously strike any with any weapon in any Church or Church-yard or shall draw any weapon there to the intent to strike another with the same weapon every Person so offending being Convicted by Verdict of Twelve Men or by his own Confession or by two Lawfull Witnesses before Justices of Assize Justices of Oyer and Terminer or Justices of Peace in their Sessions shall loose one of his Ears and if he have no Ears then to be marked in the Cheek with an hot Iron with the Letter F. and ipso facto be Excommunicate 5 E. 6. cap. 4 Co. Inst 3 part f. 176 177. An action of false Imprisonment brought by one Imprisoned for quarrelling in the Church-yard An action of false Imprisonment was brought against two Justices of the Peace who pleaded that the Plaintiff was Excommunicate at the time of his action brought and then because malitiose extraxit pugionem suum in quendam E. ea intentione ad percutiendum ipsum tam in Coemiterio Sanctae Margaretae Virginis infra clausum Cathedralis Ecclesiae Lincoln quam in Caemiterio ejusdem Ecclesiae c. and was indicted for the same And it was doubted by the Court whether this Plea was good or no and if the Plaintiff by the Statute aforesaid shall immediately without any proof made or tryal had or sentence given or proof of Witnesses before the Ordinary by reason of the words ipso facto be deemed Excommunicate P. 10 Eliz. Dyer's Reports f. 275. b. pl. 48. Palmer and Mounson's Case vide Viner and Eaton's Case Hetley's Rep. f. 86. Several Indictments for quarrelling in Church and Church-yards Many Indictments have been framed upon this Statute of 5 E. 6. cap. 4. but none of the Offenders have undergone the punishment that I can find for all the Indictments have been quashed for insufficiency of Forms as may appear by the Cases following One Perchal was Indicted upon this Statute for drawing his dagger in the Church against J. S. without saying that he did draw it to the intent to stick the Plaintiff and therefore the Indictment was holden void as to the Statute and for the Assault also at Common-Law because the Indictment concluded contra formam Statuti M. 32. El. B. R. Perchal's Case Leo. Rep. 2. part fo 188. pl. 234. and see also p. 33. Eliz. B. R. an Indictment against one Penhallow quashed for the same Reason Cro. Eliz. fo 231. pl. 23. An Indictment for fighting in the Church-yard An Indictment was also found against one Dethick upon this Statute for striking in St. Pauls Church-yard and being by the Queens Pattent created Garter-King of Arms by the words Creamus Coronamus Nomen imponimus de Garter Rex Heraldrorum because he was not so named in the Indictment being parcel of his Dignity and not of his Office he was therefore discharged of the Indictment p. 23. Eliz. B. R. Dethicks Case Cro. Eliz fo 224. pl. 7. A man was Indicted also upon this Statute that in the Church-yard such The like a day extraxit Gladium against I. L. ipsum percussit and because the Statute is if any person maliciously strike another or shall draw any Weapon with an intent to strike any person and the Indictment was extraxit but does The like not say ad percutiendum and because it was quod percussit without saying malitiose the party was discharged Noyes Rep. fo 171. The like And two Cholmleys Jasper and John being Indicted for assaulting Doctor Higham in Ecclesia de Shoreditch praedicta praedict Johannem Higham ad tune ibid c. verberaverunt vulneraverunt maletráctaverunt contra formam Statuti c. and upon this the Grand Jury finding Billa vera against Jasper and Ignoramus against John and Jasper pleading not guilty it was found against him and it was moved in Arrest of Judgment that the Indictment was not good being fecerunt and the Bill found onely against one but this exception was not allowed but another exception was taken because it was said in Ecclesia de Shoreditch praedicta and Shoreditch was not named before and for this fault the Judgment was stayd Tr. 12. Car. 1. B. R. Cholmleys Case Cro. Car. fo 464. pl. 2. CHAP. V. Some things necessary for Clergy-men to know concerning Presentations Nomination Deprivation Resignation c. and of avoidance of Spiritual Livings by Death Creation Cession Lapses c. What Presentation is NOte that Presentation is derived a praesentando quia praesentare nihil aliud est quam praesto dare seu offerre c. and this may be done as well by Word as by Writing and if it be by Writing it is no Deed but it is onely in Nature of a Letter to the Bishop and this is the reason that the King himself may present by Word iâ— the Ordinary be present Doderidge pa. 63. Co. Lit. fo 120. a. 19. Eliz. â—â— Quare Impedit 60. Rolls Cases 2 part fâ— 353. S. 1 2 3 4. Cro. Jac. fo 248. 3â— E. 3.3 vide King and Emmersons Casâ— Tr. 8. Jac. C. B. Brownl Rep. 1. paâ—â— fo 162. Presentations or Commendatorie The Form of a Presentation Letters are usually in this or the like Form Reverendissimo in Christo Patri domino R. permissione divina Eboracensis Archiepiscopo Angliae Primati Metropolitano ejusve in absentia Vicario suo in rebus spiritualibus generali T. S. Armiger verus indubitatus patronus Ecclesiae Parochialis de H. in Com. Ebor. salutem in domino sempiternam ad Ecclesiam Parochialem de H. praedictam vestrae Diocesis modo per mortem vel Resignationem Câ—ssionem Deprivationem c. as the Case is T. R. vacantem ad meam praesentationem pleno jure spectantem dilectum meum in Christo W. C. clericum in artibus Magistrum paternitati vestrae praesento or commendo humiliter supplicans ut praefatum W. C. ad dictam Ecclesiam admittere ipsumque Rectorem ejusdem Ecclesiae instituere induci facere cum suis Juribus pertinentiis universis caeteraque omnia singula peragere adimplere in hac parte quae ad vestrum munus Episcopale pertinere vedebuntur dignemini cum favore in cuius rei Testimonium his praesentibus sigillum meum apposui datum primo die Decembris Anno. Regni c. Generally all Persons who have ability Who may make a Presentation to grant or purchase have ability to present unto any Benefice with cure of Souls Yea an Infant under the Age of 21 Years may present in his own Name and Right and if he do not present within six Months the Church shall Lapse to the Bishop but a Feme Covert cannot present by
her self but her Husband shall present either in his own Name or else in both their Names together but the Queen of England is as a Feme Sole and may present to any Church without the King also Men Outlaw'd or Excommunicate c. may present and their presentments shall stand good till they be avoided by Plea 9 H. 6. 5. 17 E. 3. 9. 3 H. 7. 14. Hughe's cap. 22. One may have the Presentation and another the Nâ—mination to a Living And note that one may have the Presentation and another the Nomination to a Living and so they may be Divers distinct Inheritances As if I being seized of an Advowson in fee do grant to B. and his Heirs that he and his Heirs every time the Church becometh void shall Nominate to me a Person to be presented to the same Church which Person so Nominated I or my Heirs shall present to the Ordinary of the place to be admitted accordingly into the Church And it hath been a question in this Case who shall be said to be Patron of the Church some think he that hath the Nomination and that he that ought to present is only as servant to him that hath the Nomination vide 24 E. 3. 70. 14 H. 4. 11. a. 1 H. 5. 2. F. N. B. 33 B. Doder p. 65. Plo. Com. 157. Where one hath the Presentation and another the Nomination who shall be Patron And therefore in the 14 E. 4. 2. b. the Justices distinguished that if one be seized of an Advowson and granteth to I. S. and his Heirs to Nominate at every avoidance to him and his Heirs a Person to be presented to the same Church which Person so Nominated shall be by him or his Heirs presented to the Ordinary that in this Case he to whom the Nomination is so granted shall be Patron But if I grant to I. S. that at every avoidance he shall Nominate to me two Clerks of which I shall present one to the Bishop in this Case I remain Patron because the Election is in me which of the parties named shall be presented and have the Benefice Doder pa. 65. 14 E. 4. 2. b. Smith and Clayton's Case 32 H. 8. 48. And if one have the Nomination Where a Title of Presentation accrews to the King it shall prejudice the Nominator and another the Presentation if such Right of Presentation accrue to the King this shall not prejudice 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 Ordinary and if the King present without any such Nomination the Nominator shall bring his Quare Impedit against the Incumbent only because the King cannot be termed an Usurper Doder pa. 69. Where an Incumbent is made Bishop the King shall present If the King create a common Person who is Incumbent on a Living Bishop then the King shall have the Presentation of that Living hac vicâ— and not the Patron though the Law formerly hath been otherwise taken and if a Church be void to which thâ— Bishop hath Title to present as Patronâ— in respect of his Temporalties if hâ— dye before Presentment the King shalâ— have the Presentation by reason â—â— the Temporalties and not the Executors of the Bishop and so in like casâ— if the Church become void after thâ— Bishop's Death and before the seizuâ— of the Temporalties yet the King shalâ— have the Presentment 50 E. 3. 26. 9 H. 6. 16. b. admit 24 E. 3. 26. b. 12 E. 3. Quare Impedit 56. 21 E. 3. 6. b. 29 E. 3.44 24 E. 3. 30. adjudg Roll's Cases 2 part f. 343. C. 3 4 D. 5. 345 E. 4. 366 Z. 2. vide P. 37 Eliz. Rot. 1427. Wright's Case M. Rep. f. 399. pl. 522. and see Cro. Jac. f. 692. In what Cases the King may present where a Bishop is Patron If the Church of the Patronage of a Bishop Abbot or Prior be void and the Bishop c. present and after dye before Institution the King by his Prerogative may present to the said Church and if the Bishop live till Institution and dye before Induction in this case also the King may present by his Prerogative Liber Par. 21 E. 1. the Prior of Bermundsie's Case adjudged in Parliament F. N. B. 34 K. 38 E. 3 4. Roll's Cases 2 part f. 345 E. 6. vide Savill's Rep. f. 119. Where a Bishop helds a Living in Commendam the Patron shall present after his Death Although the King by his Prerogative shall have the presentment where the Incumbent is made Bishop yet if the King grant to the said Incumbent before he is created Bishop a dispensation to retain the said Benefice with his Bishoprick and afterwards he is created Bishop and dies Incumbent in this Case the King shall not then present by his Prerogative but the Patron shall present because the Church is not void by reason of being made Bishop but by death of the Incumbent in which the Prerogative hath no place Co. Entr. 474. Hele's Case Roll's Cases 2 part f. 343. D. 2. or if the Bishop resign his Living it is the same vide p. 6. Eliz. C. B. Sir Henry Sydny's Case Dyer f. 228. pl. 48. Hob. Rep. f. 157. and p. 19. Car. 1. C. B. Edes and Bishop of Hereford's Case Vaugh. Rep. f. 18. A Composition to present not binding to the King If during the vacancy of the Arch-Bishop of York and his Temporalties being in the King's hands the Deanry become void the King shall present to it although that by Composition between the Arch-Bishop and the Chapter the Chapter is to chuse one of Right the Patronage belonging to the Arch-Bishop and the composition shall not binde the King who comes in paramount as supream Patron 17 E. 3. 40. adjudg Roll's Cases 2 part f. 343. C. 6. What shall serve for a turn If two men have Title to present by Turn and one of them presents and his Clerk is Admitted Instituted c. and afterwards he is deprived for Crime or Heresie or other cause yet he shall not present again but this shall serve for his turn so if he be meer Laicus or Illiterate who is presented admitted and Instituted c. although it be declared by Sentence that he was Incapable ab Initio yet because the Church was full till Sentence declaratory came he being Parson de facto although this deprivation relate to some purposes yet it shall serve for his turn Co. Rep. 6. Lib. f. 102. a. Roll's Cases 2 part f. 347 K. 2 3 348 L. 6. 7 Hob. Rep. f. 148. 149. vide M. 12. 13 Eliz. Dyer f. 292. b. Where a turn shall be lost If two Men present by turn and the first presents his Clerk who is Admitted Instituted and Inducted and afterwards the Church becomes void then the other presents in his turn whose Clerk is also admitted
c. and afterwards deprived after which the the Bishop without giving notice Collates he who ought to have this turn and might remove the Bishop's Clerk grants away the Advowson then the Bishop's Clerk dies in this Case the Grantee of the Advowson cannot present this turn for the Collation of the Bishop hath prevented him although it were without notice and so Tortious and though the granter might have outed the Bishop's Clerk by a Quare Impedit yet it is but a thing in action and when he hath granted the Advowson over the Grantee cannot have this thing in action nor the granter cannot have it so as none can now have it but it shall serve for a Presentation as in his turn for this time and the other whose Clerk was deprived shall present again M. 42 43 Eliz. C. B. Leak and Bishop of Coventry and Babington's Case Cro. Eliz. f. 811 pl. 17. And if two have right to present Where two having right they ought to joyn in a Quare Impedit and the Church becomes void and then one of them releaseth to the other this release is void and they ought to joyn in a Quare Impedit M. 30 31 Eliz. C. B. Brookesby and Wickham and Bishop of Lincoln's Case Leon. Rep. 1 part f. 167. pl. 237. If two Copartners be of an Advowson Grantees of Copartners are in like case as they who granted c. and they severally grant their parts to two several Men the advantage that was between the Partners doth hold place between the Grantees so that the first presentment shall go to the Grantee of the Eldest and the next to the other and an Usurpation of the one shall not put the other out of Possession but if they were meer Tennants in Common and did not derive their Estates from Copartners the Book saith perhaps it might be otherwise P. 25 Eliz. C. B. Harris and Haye's against Nichols Cro. Eliz. f. 18 pl. 6. What shall serve for a turn A. who hath one turn presents B. who is Admitted Instituted and Inducted and afterwards is deprived by sentence upon which C. who hath the second turn presents D. who is â—dmitted c. and afterward he is deprived also and the first sentence is repealed and B. is restored to the Living again and afterwards D. the second Incumbent dyes and then after that B. dyes also hereupon C. presents again as in his turn for though his Presentee were Parson for the time to all purposes during the deprivation of B. yet when the second sentence comes and B. is restored then he is Incumbent by virtue of his first Presentation Institution and Induction and needs no new Institution and so after his Death C. may present again as in his turn but if B. had dyed before he had been restored or had not reversed the sentence of deprivation against him then it had been otherwise and C. should not have presented again as in his turn P. 41 Eliz. B. R. Rot. 513. Windsor and Archbishop of Canterbury and Fletcher's Case Co. Rep. 5 Lib. f. 102. and see Cro. Eliz. f. 686. pl. 22. Roll's Cases 2 part f. 347 K. 4 5. M. Rep f. 558. pl. 760. But when the Admission and Institution are meerly void then without When Admission c. iâ— voiâ— it serves not for a turn question it shall not serve for one turn as if the Presentee have Institution and Induction but did not Subscribe to the Articles of Religion according to the Statute of 13 Eliz. by which the Admission Institution and Induction are void this shall not serve for a turn because the Admission Institution and Induction are meerly void by the Statute Co. Rep. 5 part f. 102 b. Roll's Cases 2 part f. 347 K. 6. and if a Woman be Presented Instituted and Inducted this is a meer Nullity because her Incapacity is apparent Roll's Cases 2 part f. 348 L. 8. Hob. Rep. f. 149. Three Grantees two of them may present the third If a grant of the next avoidance be made to three and afterwards the Church becomes void and two of the three present the third Grantee being a Clerk this is a good presentment and the Bishop ought not to refuse him although all the three were joyntenants of it by grant and only two of them joyn in the presentment because the third Person cannot present himself but if one of the three only had presented the third Person the Bishop might peradventure have refused him as it is said in Dyer f. 304 b. 14 H. 8. 2. 21 Eliz. 4. 66. a. but in Moor it is held and adjudged that if one of them had presented the third Person it is good enough Tr. 31 H. 8 Rot. 348 Sr. Godfrey Foliamb's Case M. Rep. f. 4. pl. 14. and Bendl. Rep. f. 34 Institution makes the Church full against all Persons but the King Where a Church is Presentative the Church is full by Admission and Institution against any Common Person but not against the King unless the Clerk be Inducted and that is the reason that regularly Plenarty shall be tryed by the Bishop because the Church is full by Institution which is a Spiritual Act but void or not void shall be tryed by the Common Law 24 E. 3. 30. 25 E. 3. 47. 38 E. 3. 9. 9 H. 6. 31. 22 H. 6. 27 Co. Lit. f. 119 b. 344. a. Roll's Rep. 1 part f. 191 Co. Rep. 6 Lib. f. 49. a. If a Man present his Clerk to the A Man may vary from his first Presentation Bishop yet he may present another before the Bishop hath received the first and the Bishop may admit which of them he pleaseth but where an Incumbent of a Church is deprivable yet the Patron nor the King himself cannot present before the party be deprived because the Church is not void till then 38 E. 3. 36 b. Roll's Cases 2 part f. 349 O. 2 P. 1 2. 353 T. 5. 14 E. 3 2 b. Institution makes the Church full If I. S. present his Clerk who is Admitted and Instituted by this the Church is full against a Common Person for by the Institution he hath curam animarum but if the King have right to present it is not full against him before Induction of the Presentee but if the King have no right to the Church then it shall be full against him also by Admission and Institution P. 13 Jac. Hitching and Glover's Case Roll's Rep. 1 part f. 191. and 227 Cro. Jac. f. 463 pl. 11. vide M. 4 5 Eliz. Dyer f. 217 b. pl. 62. 22 H. 6. 27. a. 38 E. 3 4 Co. Kep 4 Lib. f. 79. a. 6 Lib. f. 49. a. 11 H. 4. 9. Davis Rep. f. 82. Roll's Cases 2 part f. 349 Q. 1 2 3. 33 H. 6. 24. 21 E. 4. 34 b. When a Man Usurps upon the King Presentment by Vsurpation where it binds the King and his Clerk is Instituted and Inducted although by this
the Patronage is not out of the King but the King may remove the Incumbent by a Quare Impedit though there have been a double and treble Usurpation yet till the Incumbent be removed who is Parson de facto though not de jure the Church is full against the King so that he cannot present any other to the Church during this time for by the Usurpation the presentment hac vice is out of the King neither can the King before the Clerk be removed present the same Clerk who is in by Usurpation for it cannot enure as a surrender or new presentment and so are all the Books which seem to differ in this point to be intended as 4 E. 3 Quare Impedit 33. 18 E. 3. 16. 43 E. 3. 14. 47 E. 4. 1. H. 7. 19 Bro. Quare Impedit 39 Dyer f. 351. a. for thus it was adjudged in point as my Lord Cook reports it in P. 25 Eliz. C. B. Pescod and Yardlie's Case Co. Rep. 6 Lib. f. 30. a. M. Rep. f. 338 pl. 457. Rep. 1 part f. 81 pl. 147. and Owen's Rep. f. 43. the same Case vide P. 13 Jac. B. R. the King against the Bishop of Norwich Cole and Saker Cro. Jac. f. 385 pl. 16. and Roll's Rep. 1 part f. 235. pl. 7 Co. Lit. f. 344 b. Tr. 4 Jac. B. R. the King and Champion's Case Cro. Jac. f. 123 pl. 8. Godbolt's Rep. f. 263. pl. 362 Co. 2 part Inst f. 358. Roll's Cases 2 part f. 349 Q. 4 5. 372 I. 8 Co. Rep. 6 Lib. f. 49 b. in fine If one recover in a Quare Impedit against an Incumbent the Incumbent After recovery in a Quare Impedit the Patron may present without removal is so removed by the judgment upon the Quare Impedit that the Recoverer may present to the Church without any other removing of the Incumbent although he continue Incumbent de facto till the Recoverer do present but a stranger to the recovery cannot present till the Incumbent be removed note the diversity M. 12 Jac. B. R. Whistler and Singleton's Ca. Ro. Rep. 1 part f. 62 pl. 6. and see f. 213. and M. 13 Jac. Fairbank and Durham's Ca. f. 242 H. 14 Eliz. B. R. Bennet and Edward's Ca. M. Rep. f. 571 pl. 784. Boulstr Rep. 3 part f. 38. and Roll's Cases 2 part f. 350. Collation be Lapse without good Title puts not the Patron out of Possession If the Bishop Collate without good Title of Lapse this doth not put the Patron out of Possession but he may present afterwards although the Bishop's Clerk be Inducted for it shall be taken only to be provisionally made for Celebration of Divine Service untill the Patron do present but such an Usurpation by Collation shall take away the right of Collation that is in another Bishop so that he cannot present till the Incumbent be removed 17 Eliz. 3. 64 Co. Lit. f. 344 b. 30 Eliz. B. R. Jorden's Case Collation Tortious where A Bishop Collates without good Title either of Lapse or otherwise and afterwards the Patron dies and then the six Months pass and the Executors bring a Quare Impedit by virtue of the stat 4 E. 3 cap. 5. and the Bishop and Incumbent plead Plenarty for six Months and upon demurrer this was adjudged no Plea because such Collation is no Plenarty being Tortious M. 32 33 Eliz. C. B. Smalwood and other Executors of Sale against the Bishop of Coventry and Litchfield Cro. Eliz. f. 207 pl. 1. Roll's Cases 2 part f. 350. If the King present ratione Lapsus Where the King is deceived in his Presentment it puts not the Patron out of Possession c. where he hath no Title to present by Lapse or otherwise and upon this the Ordinary Admits Institutes and Inducts the Clerk yet this does not put the right Patron to his Quare Impedit but he may present for the Presentment was void the King being deceived and so the Institution and Induction without any Presentment and if the King present ratione Lapsus where he hath Title pleno jure and so mistakes his Title in this Case although the Clerk be Instituted and Inducted yet this doth not put the King to his Quare Impedit for the Presentment is void and so the King is not out of Possession but may present before removal of such Clerk Also if the King repeal his Presentation before Induction of the Clerk and give notice thereof to the Ordinary who notwithstanding afterwards Institutes and Inducts him yet the King may present another for the Church is not full because it is no Presentation and in such Cases where the King repeals his Presentation though he give no notice to the Ordinary yet if the Ordinary after such repeal Institutes and Inducts it is void and if the King presents A. and upon refusal of him brings a Quare Impedit and pending the same B. procures a Presentment of the King for himself in deceit of the King and upon this is Instituted and Inducted by the Ordinary yet this doth not put the King out of Possession because the Presentment is void and so the King may present before the removal of B. by Quare Impedit if a Man present in time of War and the Presentee is Instituted and Inducted in time of Peace this doth not put the Patron to his Quare Impedit but he may present for this is but as in Institution and Induction without a Presentation Roll's Cases 2 part f. 350. in fine 351. 353 S. 6 T. 1. 354 V. 3. 5. Co. Rep. 6 Lib. f. 29 b. 25 Eliz. 3. 47 Dyer f. 292. a. pl. 70. 330 b. Vaugh. Rep. f. 14. Roll's Rep. 1 part f. 236. F. N. B. 34 C. 271 D. Co. Lit. f. 344 b. vide M. 15 16 Eliz. Waller and Scott's Case And Rep. 1 part f. 38 pl. 99. If the King 's Presentee dye before Induction he may present again It is said in Co. 9 Rep. and admitted in Dyer 360. that if the Presentee of the King dye after Institution and before Induction yet in this Case the King may present again because he had not the effect of his Presentation Co. Rep. 9 Lib. f. 132. and Dyer f. 360. b. pl. 7 vide Roll's Cases 2 part f. 353 T. 3354 V. 4 Tr. 32 Eliz. C. B. Wright and the Bishop of Norwich Case Leon. Rep. 1 part f. 156 pl. 218. If the King present to a Benefice What is a Revocation of the King's Presentation and dye before his Clerk is Admitted and Instituted the Presentation is revoked in Law by his Death and if the King first present one Man and then another without any Revocation of the first or mention made of it yet this is a Revocation in Law of the first Presentation if the second be not obtained by fraud in deceit of the King pending a Quare Impedit M. 8 Jac. in Sccar inter Calvert and Kitchin Roll's Cases 2
part f. 354 V. 1. 2 3 M. 8 Jac. C. B. Waller's Case Godb. Rep. p. 179 pl. 25 Co. Rep. 6 Lib. f. 29 b. vide M. 15 16 Eliz. 372 b. H. 17 Eliz. Dyer 339 b. pl. 47. Death of a Patron no Revocation of his Presentation But if a Common Person present and dye before Institution this is no Revocation in Law of the Presentation but it remains still in its force and if the Executors after the Testator's Death should present another yet the Bishop is not chargeable to admit any other but him that was first presented Savil's Rep. f. 95. 44 Eliz. 3. 30. Roll's Cases 2 part f. 354 V. 6. Where Vsurpation shall prejudice the King If the â—â—ing have Title to present ratione Lapsus and the Patron usurps upon him and presents one who is admitted c. and dyeth in this Case the King hath lost his Presentation for he having the first Presentation he shall not have the second for otherwise the King may suffer Strangers to present one after another and take his turn when he pleaseth and by that means the Patron shall in a manner be disinherited and the Statute Praerogativa Regis nullum tempus accurrit Regi is to be intended where the King hath a permanent Title and not Transitory when time is the substance of his Title 27 Eliz. Baskervil's Case Co. Rep. 7 Lib. f. 28. Owen's Rep. f. 5. 89. 90 Cro. Eliz. f. 790. Where the King shall lose his Presentation And where it is said in my Lord Hobbarts Reports to be his Opinion that if a Church Lapse to the King yet if the Patron presents before the King take the advantage of the Lapse the King shall not then have the advantage thereof for he saith it is not fully within the Rule Nullum tempus occurrit Regi for the Patron 's Title continues till the Lapse Executed Hob. Rep. f. 152 but this I suppose is to be intended where the Presentee of the Patron by Usurpation upon the King dyes before the King present as it is in the Case before for otherwise there are Divers Authorities against my Lord Hobbarts Opinion 27 E. 3. 84 b. Roll's Cases 2 part 368 B. 2 3 4 Tr. 10 Eliz. Dyer f. 277. pl. 55. Co. Rep. 7 Lib. f. 28. H. 6 Jac. B. R. Cumber and the Bishop of Chichester's Case Cro. Jac. f. 216 vide Beverly and the Archbishop of Canterbury and Cornwall's Case Cro. Eliz. f. 44. Owen's Rep. f. 2. Gold Rep. pa. 44 pl. 25. Savil's Rep. f. 89 pl. 166. Ander Rep. 1 part f. 148 pl. 196. Leon. Rep. 1 part f. 63 pl. 84. 226 pl. 307. Roll's Cases 2 part f. 351. and Bishop of Lincoln's Case Owen's Rep. f. 5. 89 90. An Ecclesiastical Patron cannot vary from his Presentation An Ecclesiastical Patron cannot vary from his presentment quia praesentatio à Clerico Patrono facta vim habet Electionis eligens indignum privatur ipso jure 31 Eliz. 1 Quare Impedit 185. neither can a Common Lay Patron by our Law revoke his Presentation H. 18 Eliz. Dyer f. 348. a. Roll's Cases 2 part f. 354. If the Chancellor present when he ought not the King may repeal it If the Chancellor present to a Benefice supposing it to be under value when it is not and hereupon the Presentee is Admitted and Instituted and before Induction the King being made acquainted with it repeals the said Presentation and presents one in his own Name this is a good repeal for that it appears to the King he had a right precedent and was deceived in the first grant Roll's Cases 2 part f. 353 T. 4. What are good causes of deprivation If a Miscreant or Schismatick be presented Admitted and Instituted and Inducted it is a good cause of deprivation 5 R. 2 Tit. Tryal 54. so if he be Irreligious he may be refused as it is said in the 5 H. 7. 6. but where he is charged with one or refused for another it ought to be alledged in particular what the cause is so that the party may answer to it as in the 5 H. 7. 19. 11. H. 7. 7. 27. as that the Presentee is a Villain Bastard under age not infra sacros Ordines or Illiterate c. or as in the 15 H. 7. 7 b. that the Patron had been Excommunicate for forty days and therefore his Presentee ought not to be admitted or that the Presentee had committed homicide as it is held in the 38 E. 3 2. or that the Presentee is Out-law'd for then he is not Idonea Persona or one who is meer Laicus M. 12 13 Eliz. Dyer f. 292 b. in a Quare Impedit if the Bishop return that at the time of the Presentation the Presentee was a common haunter of Taverns and other places and a player at unlawfull and prohibited Games ob quod diversa alia crimina le dit Presentee fuit criminosus non Idoneus it was adjudged that these particular defects did not make the Presentee criminosus because they are not mala in se but mala prohibita and the other words quod ob diversa alia crimina he was criminosus non Idoneus were too general and uncertain vide H. 32 Eliz. B. R. in Specot's Case Co. Rep. 5 Lib. f. 58. a. Leon. Rep. 3 part f. 198 pl. 251. An. Rep 1 part f. 189. pl. 225 Roll's Cases 2 part f. 355 Y. 1 Z. 1 if a Parson be convicted of Homicide it is good cause of deprivation Tr. 15 Jac. B. R. Searl's Case Cro. Jac. f. 430 pl. 10 Hob. Rep. f. 121. Hughgr Abr. 1 part f. 633 Ca. 3. 634 Ca. 5. 635 Ca. 12. Causes of deprivation are good causes of refusal of a Presentee All such causes as are sufficient causes to deprive an Incumbent are sufficient to refuse a Presentee it is no cause to refuse a Presentee because he hath another Benefice for that is at his own Peril and peradventure the second Benifice is better than the first and the first shall be only void and therefore it would be mischievous to the Presentee if he should be refused for that cause if the Bishop once refuse the Presentee he cannot afterwards accept him P. 26 Eliz. C. B. Bishop of Hereford's Case Cro. Eliz. f. 27 pl. 10. vide Co. Rep. 5 Lib. f. 58. b. 14 H. 7. 28. b. Roll's Case 2 part f. 355 Z. 2 3. A Church being void upon the What shall pass by a gram of proximam advocationem stat 21 H. 8. for taking a second Benefice of eight pounds value without qualification the Patron thereupon grants to one primam proximam advocationem dictae Ecclesiae cum primo proximo vacare contigerit by virtue whereof the Grantee presents to the said Church and being disturbed brought his Quare Impedit and it was holden that the present avoidance did not pass by the said grant
for the avoidance being before the said grant it cannot be said to be prima proxima post donum concess praedictt c. P. 2 3. P. M. Agard and the Bishop of Peterborough and Denton's Case Dyer f. 129. b. vide P. 11 Eliz. Dyer f. 283. a. 28 H. 8. 26. b. It is good cause of refusal of a Presentee Simony good cause of deprivation for that he is Simoniacus in the same Presentment to wit hath made a corrupt contract to be presented or that he is Simoniacus to another Benefice besides this he is presented to also if a Parson doe or suffer Dilapidations he is deprivable Bishop of Salisbury's Case 12 Jac. B. R. Godb. Rep. pa. 259 pl. 357 Tr. 16 Jac. Boughton and the Bishop of Rochester's Case Roll's Cases 2 part f. 356. Where the Ordinary shall be no disturber If the Ordinary Admit and Institute the Presentee of the Chancellor and command the Archdeacon to Induct him and afterwards before Induction the King sends an Inhibition reciting that the Church is above the value of forty pounds per. ann and so belongs not to the Chancellor to present and commands the Ordinary to receive A. B. his Clerk whom he presents in this Case if the Ordinary dâ— not command the Archdeacon not tâ— proceed in the Induction but suffer the same to be done a Month afterwards yet he shall not be adjudged disturber for there is no default in him but if the Inhibition had come to thâ— Ordinary before the Warrant made tâ— the Archdeacon if he had made â— Warrant afterwards by which he haâ— been Inducted then he should be a dâ—sturber 38 E. 3. 3 4. Roll's Case 2 part f. 356 A. 1 2. If the Archbishop Visit his Inferior Bishop and Inhibits him during the The Ordinarie's power suspended during Inhibition Visitation to execute any Jurisdiction if the Bishop have Title to Collate to a Benefice within his Diocess by Lapse yet he cannot during the Inhibition Institute his Clerk but must present him to the Archbishop and he shall Institute him because during the Inhibition his power of Jurisdiction is suspended Tr. 11 Car. 1. B. R. Rot. 446. Dodson and Lin's Case Cro. Car. f. 471. Roll's Cases 2 part f. 357 C. 1. 367. Z. 1. After Institution a Presentee may resign where a common Person is Patron but not where the King is Patron And note where a Parson is only Admitted and Instituted although as concerning the Spiritual Function he be a Parson before Induction yet because no part of the free-hold of the Spiritual Benefice is transferred to him but by the Induction he cannot therefore until after Induction if the King be Patron make any good and effectual Resignation vide plo Com. 526. 21 E. 3. 5. a. but if a Subject be Patron and his Presentee be admitted such Presentee if he be willing to leave his charge may before Induction resign the Church for the Spiritual Dignity was full of an Incumbent in respect of his Patron and because also there is no other means to clear the Church of him but by such Renunciation Doderidge pa 80 81. Resignation to whom to be made The Word Resignare is not the proper Word in Law for a Resignation but Renunciare cedere demittere are the usual Words of Resignation M. 12 13 Eliz. Dyer f. 292. a. Doder pa. 79. and note that a Resignation ought to be made to the immediate Ordinary and not to the mediate Ordinary Roll's Cases 2 part f. 358 E. 1. F. 1. but the Incumbent of a Donative may resign to his Patron because it is of the Patron 's Foundation and of his Visitation and Correction and the Ordinary hath nothing to doe with him P. 3 Jac. Fairchild and Garie's Case M. Rep. f. 765 pl. 1062. vide Doder pa. 81. The King shall present where an Incumbent is made Bishop If the Incumbent be made a Bishop the Church is void and the King shall present to it by his Prerogative and so it is of a Prebendary and it the Incumbent be created Bishop of the same Diocess where he was Incumbent the Church is void for he cannot be Sovereign and Subject and so it is if he be made Bishop of another Diocess or a Bishop in Ireland but note the Church is not void till Consecration and in Case where the King grants a Licence to the Bishop to hold his Living in Commendam with the Bishoprick if the Bishop afterwards dye or surrender that same Living then the Patron and not the King shall present to it vide 7 H. 4. 25. b. 11 H. 4. 37. b. 24 E. 3. 26. b. Davis Rep. f. 69. a. and see M. 42 Eliz. C. B. Sir Robert Basset and Gee's Case Cro. Eliz. f. 790 pl. 31 Tr. 3 Car. I. B. R. Evan's and Ascough's Case Jone's Rep. f. 58. Noye's Rep. f. 93. Latche's Rep. f. 32. 234. 19 E. Tryal 57. 5 E. 3. 9. 11 E. 3. 1. Vaugh. Rep. f. 22. Wynch Rep. f. 98 99. Woody and Bishop of Exeter Cro. Jac. 691. Where Lapse shall incur without notice and where not Before the stat 21 H. 8. cap. 13. if one had a Benefice with cure and did accept another Benefice with cure the first became void but this avoidance was not by the Common Law but by the Constitution of the Pope of which avoidance the Patron might take notice if he pleased and might present without any deprivation but because the avoidance did accrew by the Ecclesiastical Law no Lapse did incur without notice as it is upon deprivation or Resignation and yet the Patron may present and take notice of it if he please and according to this diversity it is adjudged H. 24 E. 3. f. 33. in the King and the Bishop of Worcester's Case and with this agree the Books in the 9 E. 3. 22. a. 10 E. 3. 1. 14 H. 7. 28. b. 14 H. 8. 17. a F. N. B. 34 L. as my Lord Cook reports in his 4 Lib. in Holland's Case and where it is said in the 5 E. 3. 9. 11 H. 4. 37. that the Church is not void without deprivation this is to be interpreted that it shall not be void to the Patron 's disadvantage but for his advantage it shall as it is shewed before and so all the Books are reconciled So it appears that the stat 21 H. 8. is but in affirmance of the Law aforesaid but noâ— because it is affirmed by Act of Parliament if the first Benefice be of thâ— value of eight Pounds per ann the Patron at his Peril to prevent a Lapse ought to present to it because to aâ— avoidance by Act of Parliament eveâ— one is party and ought to take noticâ— at his Peril but it is otherwise if thâ— Church be not of the yearly value oâ— eight pounds for then it is void meerly by the Ecclesiastical Law of which the Patron is not
bound to take notice at his Peril as aforesaid see Tr. 39 Eliz. B. R. in Holland's Case Co. Rep. 4 Lib. f. 75 b. 76. a. H. 41 Eliz. B. R. in Digby's Case f. 79. b. Davis Rep. 69. a. M. Rep. f. 542. pl. 719. Roll's Cases 2 part f. 360 361. L. 1 2 3 4. Cro. Car. f. 357. vide Tr. 14 Car. 1 B. R. the King and the Bishop of London and Baldock's Case Jones Rep. f. 404. and see f. 337 P. 7 Eliz. Dyer f. 237. a. pl. 29. 255. a. pl. 5. If an Incumbent be deprivable the Church is full till deprivation If an Incumbent be deprivable yet the Church is not void before deprivation if after a Caveat entered c. a Clerk is Presented Instituted and Inducted although this be accounted Illegal by the Canon Law yet the Church by this is full according to our Law for the breach of the Caveat is only a breach of the Canon and makes not the Institution void M. 15 Car. 1 inter Phipps Hayter per curiam Roll's Cases 2 part f. 361 M. 2 3. vide Doder pa. 74. How the six Months for Lapse shall be accounted The six Months whereby Lapse is Incurred shall be accounted from the time of the last Incumbent's death as it is said in Catesbie's Case Co. Rep. 6 Lib. f. 62. b. and the six Months are to be accounted and reckoned according to the Kalender in dividing the Year into days to wit 182 days and for the odd day in the Year the Law doth not regard it Hol. Rep. f. 100. Cro. Jac. f. 141. f. 166. pl. 6 Co. 2 part Inst f. 361. M. 4. Jac. C. B. Catesby and Bishop of Peterborough and Baker's Case Co. Rep. 6 Lib. f. 61. b. When the Patron is bound to take notice to prevent a Lapse and when not If the Living become void by Death Creation or Cession of the last Incumbent then the Patron is bound at his Peril to take notice to present within six Months 26 H. 6. 29. b. Dyer f. 237. a. 255. a. but if it become void by Deprivation or Resignation then he may present within six Months after Legal notice given to him by the Ordinary Dyer f. 327. â— Doct. Stud. 2 part cap. 31. Roll's Cases 2 part f. 364. Who is to give notice to the Patron In such Cases where the Patron is to have notice before the Church can Lapse he ought to have it from the Bishop himself or Ordinary which notice must be given personally to the Patron if he lives in the same County and if he live in another County theâ— the notice may be published in the Parish Church and affixed on the Church door and this notice must express in certain the cause of deprivation c. Dyer f. 328. a. Hill 18 Eliz. Bacon and the Bishop of Carlisle and Whitton's Case Dyer f. 346. a. b. and note it is there said that the Opinion of the Civillians was that such notice ought to be vere proprie personaliter non ficte see M. 30 31 Eliz. B. R. Albany and the Bishop of S. Asaph's Case Cro. Eliz. f 119. Leon. Rep. 1 part f. 31. pl. 39 Tr. 44 Eliz. B. R. Green and Baker's Case Co. Rep. 6 Lib. f. 29. vide Hob. Rep. f. 318. Hel. Rep. f. 7. and Roll's Cases 2 part f. 365. T. 1 2. The Patron after Lapse incurred may present before the Bishop Collate In all Cases where the Church doth Lapse to the Bishop or Archbishop and the Patron doth present his Clerk before the Bishop or Archbishop have Collated the Bishop c. is bound to admit the Clerk of the true Patron and cannot take advantage of the Lapse but if the Bishop Collate and the Patron present before Induction he comes then too late 13 E. 4. f. 3. b. 11 H. 4. 80. a. vide Tr. 10 Eliz. Dyer f. 277. a. pl. 56. Roll's Cases 2 part f. 367. A. 1 2. if the Bishop Collate wrongfully and the Patron dyes the Executors may bring a Quare Impedit to remove the Clerk Leon. Rep. 4 part f. 15. pl. 53. Lapse shall incurragainst on Infant or Feme Covert If an Infant Patron or Feme Covert do not present where they have Title within six Months their Churches shall Lapse to the Ordinary 33 E. â— Quare Impedit 46. Roll's Cases 2 part f. 367. H. 1 2. Where Lapse shall incurr without notice and where not If the Ordinary refuse a Clerk because he is Criminosus or Illiterate in this Case the Patron shall not have six Months to present after notice given but from the avoidance but in such Case no Lapse shall accrew unless the Patron shall have notice and if the Clerk be refused for a private cause oâ— for a notorious crime as that he is â— common Advowterer or a Murdereâ— yet no Lapse shall be of such Church without notice but if a Spiritual Patron present a Clerk who is refused because he is illiterate in such Case it shall Lapse without notice because thâ— Law supposeth that he may have Cognizance of his sufficiency before he presents him vide M. 15 16 Eliz. Dyer f. 327. b. pl. 7. 14 H. 7. 21. a. Rell f. 49 b. 50. b. 38 E. 3. 2. Roll's Cases 2 part f. 364 Q. 8 9 R. 1 2 3 4 5 and see P. 12 Eliz C. B. Bennyfield and Pickering's Case An. Rep. 1. part f. 16. pl. 34. f. 62 63. f. 30. pl. 70. From what time the six Months shall be reckoned If a Church become void by Deprivation or Resignation the six Months shall be reckoned from the time of the notice given to the Patron and not from the avoidance and if a Resignation be made to the Bishop no Lapse accrews without notice and the six Months to be reckoned from that time so if the Bishop dyes who takes the Resignation yet no Lapse shall accrew to his successor or without notice given to the Patron and where notice ought to be given and none is given within eighteen Months by which the King ought to have presented by Lapse if notice had been given yet in this Case no Lapse shall accrew to him because no Lapse shall be given to the King where no Title of Lapse was to the inferiour Ordinary because the King comes in to supply his default 1 H. 7. 9 Doct. Stud. 2 Lib. cap. 31. 5 E. 4. 3. b. Rell 49. b. Dyer f. 348. a. Roll's Cases 2 part f. 364 Q. 10. 365 R. 7 8 9 S. 1 2. 367 Z. 3. vide Tr. 24 Eliz. C. B. the Queen and Bishop of Lincoln and York's Case An. Rep. 1 part f. 62. pl. 136. In a Quare Impedit against a disturber the Bishop not being named in the How a Lapse shall be prevented when the Bishop is not named in a Quare Impedit Writ if the Plaintiff recover within the six
Months yet if the six Months be run out before the Writ to the Bishop taken out the Lapse shall accrew to the Ordinary and his Clerk shall not be removed if he Collate before recept of the Writ and so if after the recovery within the six Months the Defendant brings a Writ of Error and pending that the six Months pass the Lapse shall accrew to the Ordinary but if the Plaintiff in such Case brings a Quare Incumbravit against the Bishop and after the six Months pass there the Lapse shall not accrew to the Ordinary for the Quare Incumbravit prevents it 17 E. 3.75.5 E. 1. 75. Roll's Cases 2 part f. 366 V. 3 4 X. 2. 11 H. 4. 80. Co. Lit. f. 344. b. vide Cro. Jac. f. 93. If the Ordinary be not named in a If the Bishop be named in a Quare Impedit he cannot Câ—llaâ—â— by Lapse Quare Impedit he may Collate by Lapse if the six Months incurr Pendente Lite as is shewed before but if he be named he cannot take advantage of the Lapse but ought to see that the Clerk be served by allowance out of the profits to be taken by Sequestration and as he is bound not to take advantage of any Lapse so is also the Matropolitan and the King for where no Lapse incurrs to the Ordinary there none can incurr to them and so it was adjudged in one Duke's Case as my Lord Cook said and it was said by Popham that the course to stop strangers from presenting Pendente Brevi is after a Quare Impedit brought to sue out a Ne Admittas to the Bishop and if the Bishop then admit the Clerk of any other pending that suit and the Plaintiff recovers he shall have a Quare Incumbravit and thereby remove any who comes in pending the Writ by whatsoever Title he comes in and shall force him who hath right to recover by Quare Impedit but if he sues not out such a Writ of Ne Admittas if then the Incumbent of a stranger should come in by good Title Pendente Brevi he shall barr him in a Scire Facias and shall hold it and note that this Writ of Ne Admittas may be sued out either by the Plaintiff or Defendant in the Quare Impedit to the Bishop vide 21 H. 6. 45. 2 E. 4. 11. b. F. N. B. 37. F. H. 38 B. C. 48 I. If a Man do recover his Presentation in the Common Pleas against the Bishop then he may have a Writ to the same Bishop to admit his Clerk or unto the Metropolitan and after that he may have an Alias Plures and so an Attachment if the Bishop do not execute the Writ see M. 3 Jac. B. R. in the argument of Lancaster and Low's Case Cro. Jac. f. 93. â—f a Bishop be a disturber no Lapse shall incurr by it If the Bishop be a disturber no Lapse shall be by this disturbance although the Church be void six Months so if the Patron present to the Bishop and he will not examine the Clerk but delays him by which the six Months pass yet no Lapse shall accrew to the Bishop by this because he is a disturber and it comes by his own act Tr. 3 Jac. B. R. inter Palmer Smith Roll's Cases 2 part f. 366 V. 5 6. 369 E. 3 4. Note that a Church Parochial may be A Church Parochial may be donative c. donative and exempt from all Ordinary Jurisdiction and the Incumbent may resign to the Patron and not to the Ordinary unumquodque eodem modo quo Colligatum est dissolvitur neither can the Ordinary visit but the Patron by Commissioners to be appointed by him yet a meer Laicus is not presentable to such â— donative but an able Clerk infra sacros ordines for albeit he come in by the Donation and not by Admission or Institution which in this Case is not requisite yet his Function is spiritual and if such a Clerk donative be disturbed the Patron shall have a Quare Impedit of this Church donative and so it is of a Prebend Chantry Chapel donative and the like and no Lapse shall incurr to the Ordinary unless it be specially provided so in the Foundation but if the Patron of such a donative doth once present to the Ordinary and his Clerk is Admitted and Instituted it is by this become presentable and never shall be donative after and if a donative become void and a stranger presents to it and his Clerk is Admitted Instituted and Inducted yet this is no Usurpation to the true Patron but all this is meerly void H. 1 Jac. B. R. inter Fairchild Gayer Co. Lit. f. 344. a. Cro. Jac. f. 63. pl. 1 H. Rep. f. 60 Brownl Rep. 1 part pa. 201. F. N. B. 35 E. An Vsurpation upon a Bishop bindâ— not his Successor If a Bishop suffer an Usurpation of a Church in right of his Bishoprick this shall not bind his successor but himself only during his own time and the successor may have a Quare Impedit or present to the next turn and so it was resolved M. 21 Jac. B. R. inter Dalton Pamphlin and the Bishop of Ely Cro. Jac. f. 673. pl. 6. Jone's Rep. f. 45. Laye's Rep. f. 80. In what Cases Lapse incurs not without notice When the Church doth become void by Deprivation or Resignation or by refusal of the Presentee for Non Ability or for crime in such Case the Bishop ought to give notice thereof to the Patron otherwise no Lapse incurrs but after the six Months past the Patron may have a Writ to the Bishop if the Church remain void and the Bishop hath not Collated thereunto F. N. B. 35 H. I. To what Benefices of the King 's the Chancellor shall present The Chancellor of England shall present to all the King's Churches which are under the value of twenty Marks by the Year which are in the King's gift and in the right of the Crown but if the King have them by any other Title then the Chancellor shall not present unto them F. N. B. 35 R. Note that the Lord Chancellor presented to a Benefice which belonged to the King which was above value and in this Case it was agreed by Hobbert Chief Justice of the Common Pleas and Tanfield Chief Barron that this Presentation remained good till it was avoided Parson and Morlee's Case Winch. Rep. f. 19. To whom Lapse shall incurr Where Lapse incurrs after the first six Months to the Ordinary or Bishop of the Diocess if he present not within six Months after then it goes to the Metropolitan of the Province and if he present not within other six Months then it goes to the King as Supream Ordinary of all Benefices Doct. Student 125. Hughe's gr Abr. 1 part pa. 134. Ca. 1. How many ways a Church may become void Note a Church Presentative may become void five manner of ways viz.
Rule they go by in the First Fruits Office was made after the Popes Authority was denyed here in England vide Co. Inst 3. part f. 154. CHAP. VIII Of the First Fruits Tenths Dilapidations and Mortuaries Court of the First Fruits dissolved OBserve that in the time of H. 8. when the First Fruits were annexed to the Crown there was a Court of First Fruits and Tenths instituted and appointed by the 32 H. 8. cap. 45. consisting of a Chancellor Treasurer King's Attorney two Auditors and two Clerks a Messinger and an Usher with Authority given to Compound for First Fruits and that Bonds taken therefore should be of the force of a Statute Staple but this Court was Dissolved by Queen Mary 1. Mar. 2. Sess cap. 10. and all the Clergy Exonerated and Discharged from the payment of First Fruits and Tenths given to the Crown by the 26 H. 8. cap. 3. and this was Enacted by 2. 3. p. M. cap. 4. First Fruits Restâ—â—ed to the Crown But afterwards the Stat. 26 H. 8. cap. 3. was revived and First Fruits and Tenths of the Clergy Reunited to the Crown by 1 Eliz. cap. 4. but no Court is revived but First Fruits and Tenths to be within the Rule Survey and Government of the Exchequer and a new Office and Officer was Created viz. a Remembrancer of the First Fruits and Tenths of the Clergy who taketh all Compositions for the First Fruits and Tenths and makes process against such as pay not the same and note that the First Fruits are the profits for one whole year of every Spiritual Living after Avoidance except Vicarages not exceeding Ten pounds and Parsonages not exceeding Ten Marks in the King's Books according to the Taxation made in the 26 H. 8. and now remaining in the Exchequer but all are to pay Tenths 1 Eliz. cap. 4. Co. Inst 4. part f. 120. First Fâ—â—iâ—s given to â—â—e King By the Stat. 26 H. 8. it is Enacted that the King's Highness His Heirs â—nd Successors Kings of England shall have and enjoy from time to time to endure for ever of every such Person and Persons as shall be Nominated Elected Preferred Presented Collated or by any other means appointed to have any Arch-bishoprick Bishoprick College Hospital Arch deaconry Deanry Provost-ship Prebend Parsonage Vicarage or other Dignity Benefice Office or Promotion Spiritual within this Realm or elsewhere within any of the King's Dominions of what Name Nature or Quality soever they be or to whose Foundation Patronage or Gift soever they belong the First Fruits Revenues and Profits for one year of every such Arch-bishoprick Bishoprick c. And that every such Person and Persons before any Actual or Real possession or medling with the Profits thereof shall satisfie content and pay or compound or agree to pay to the King's use at reasonable dayes upon good Suerties the said First Fruits and Profits for one year and all Writings Obligatory taken or the payment of the same by any Person deputed to Compound for the First Fruits shall be of the same strength quality and force to all Iâ—â—â—nts as Writings Obligatory made by any Lay Person by Authority of the Sâ—atute Staple And if any Person or Persons 〈…〉 said do enter into the â—eaâ— and 〈…〉 of any of the 〈…〉 aforesaid 〈…〉 thereof 〈…〉 he First Fruits or compounded and given Suerties as aforesaid to pay the same Then every such Person so offending and being Convicted by Presentment Verdict Confession or Witnesses before such as have Authority to Compound the same shall be taken as an Intruder upon the King's Possession and they their Heirs Executors or Administrators shall pay double the value of the said First Fruits and Profits of such Dignity c. wherein they shall so enter before Payment or Agreement for the same but Arch-bishops and Bishops and all other having Ordinary Jurisdiction may give and deliver Letters of Institution and Induction as they might do before the making of the said Act notwithstanding the same 26 H. 8. cap. 3. Tenths given to the King And it is also further Enacted by the said Statute that there shall be paid yearly for ever to the King His Heirs and Successors one yearly Rent or Pension amounting to the value of the Tenth part of the Profits of all and every Benefice or Promotion Spiritual c. as abovesaid according to the Taxation in the King's Exchequer aforesaid to be paid yearly befoâ—◠〈◊〉 first day of April and every Arch-bishop and Bishop within their proper Diocess as well within places exempt as not exempt and in time of Vacation the Dean and Chapter of the Cathedral Church shall Collect and Receive the same and pay in the said Sums yearly before the last day of May 7 E. 6. cap. 4. to such Persons as have Authority to receive the same And every of the said Arch-bishops and Bishops their Executors and Administrators and Possessions of their Dignities and Churches shall stand Charged and Chargable for the same Sums of Money which they shall Collect and Receive of the said yearly Rent or Pension and the Bishop of Norwich and his Successors and in the time of Vacation the Dean and Chapter of the Cathedral Church of Norwich are to gather the same within that Diocess by the Statute 32 H. 8. cap. 47. and the Rents and Pensions reserved by H. 8. out of the Five new Bishopricks Established by him to wit Chester Glocester Peterborough Bristol and Oxford which by the 34 and 35 H. 8. c. 17. were to be paid into the Court of First Fruits and Tenths are made payable by the 1 Eliz. to the same Persons who receive the First Fruits and Tenths of the other Clergy 1 Eliz. c. 4. Process to be made out for non-payment of Tenths And by the 26 H. 8. cap. 3. It is further Enacted That the Treasurer Chancellor and Barons of the King's Exchequer shall yearly cause Process to be made by their Discretions for Non payment of the Tenths or any part thereof against every Arch-bishop and Bishop of this Realm for so much as the Dignities Benefices c. within their several Diocesses are Taxed and Charged at every of the said Arch-bishops and Bishops to be Charged only for so much as is within his own Diocess And the Arch-bishops and Bishops have Power and Authority by the said Act to levy take and perceive by Authority of Censures of the Church or by Distress or otherwise by their Discretion all such Sums of Money as are Rated for the said Tenths upon the Lands Tenements Profits c. of all such Spiritual Promotions as aforesaid within their Diocess And no Replevin Prohibition nor Supersedeas upon any Excommunication nor any other Writ or Impediment shall be Sued Allowed or Obeyed for any Person or Persons making default of payment of such part and portion as they shall be Rated at till such time as they have truly satisfied their said Part and Portion And in Case where
the Tenths are due and being reasonably demanded at their Dignities Churches or Houses c. by the Arch bishop or Bishop or such as shall be charged with the Collection thereof or by any other their Ministers Servants or Officers and be not paid at the time of such Demand or Request or within Forty dayes after at the furthest that then every Incumbent making such default of payment after such default certified into the King's Exchequer in Writing under the Seals of any Arch-bishop or Bishop or of such as be charged to the Collection of the said Pension shall be Adjudged deprived ipso facto of that only Dignity Benefice c. whereof such Certificate shall be made as if the said Incumbent were dead 26 H. 8. cap. 3. 2. E. 6. cap. 20. 1 Eliz. cap. 4. vide p. 7. Eliz. C. B. Dyer f. 237. a. pl. 29. And every Arch-bishop and Bishop How Bishops c. may be discharged of Tenths or any other having Authority to Receive the Tenths making a Certificate into the Exchequer before the last day of May by the Statute 7 E. 6. cap. 4. that they have reasonably demanded the Tenths of any Incumbent of any Dignity Benefice c. due for him to pay and that he hath not paid the same or that such Benefice remains void and no Incumbent can be had shall be a discharge to every such Arch-bishop and Bishop or other having Authority to receive the Tenths for so much as such Incumbent or Benefice being void ought to pay And the Treasurer Chancellor and Barons of the King's Exchequer shall devise and direct upon every such Certificate such Process out of the said Court against every Incumbent so Certified and their Executors and Administrators for Insufficiency of them against the Successors of every such Incumbent so that the King may be truly Answered the said Tenths for such Dignity c. and may Levy and take all the Glebe Lands Tithes c. of the Benefice being vacant to which no Incumbent can be had to satisfie himself 7 E. 6. cap. 4. also where the said Arch-bishop Bishop or other Accomptants charged with the Collection of Tenths make Oath before the Treasurer Barons and Chancellor of the Exchequer or the Major part of them or before such other Persons as have power to hear such Accompt that they cannot or may not for some sufficient Cause or matter lawfully Levy the Tenths which they stand charged in Accompt then upon such Oath made they shall be discharged for so much 32 H. 8. cap. 22. Acquittances made by such as have Acquittances for Tenths by whom to be made c. power to receive Tenths or any part thereof to such Person or Persons who are charged with the Collection thereof shall be of as good strength force virtue and effect to the parties having the same as if they were made in the King's Name under his Great Seal and shall be allowed admitted and accepted in all Courts of this Realm and no Officer of the Exchequer shall take any matter thing or reward of any Arch-bishop or Bishop or of any other Persons having Charge with the Collection and Payment of Tenths for making their Accompt or Quietus est upon pein to lose his Office and make Fine to the King at his will and pleasure 26 H. 8. cap. 3. 1 Eliz. cap. 1. By the 27 H. 8. the Tenths are to What Remedy for Arrearages of Tenths be paid by every Arch-bishop Bishop c. the first year they enter on their Spiritual Dignities Benefices c. and they are to have allowance thereof in the payment of their First Fruits and where any Incumbent is chargeable with the Arrears of his Predecessors Tenths in such Case he may distrain such Goods and Chattels of his Predecessors as shall happen to be and remain in and upon the Dignity Benefice c. for which the same Tenths were behind and retain the same till such time as his Predecessor pay if he be alive and if he be dead then till â—is Executors or Administrators or â—hose to whom his Goods and Chatâ—els should belong do pay the same â—nd if the Money be not paid within â—welve dayes after the distress taken â—â—en the said distress to be apprized â—y two or three Indifferent Persons to â—e Sworn for the same and then acâ—â—rding to the said Appraisement so â—uch of the distress to be sold as will â—y the said Arrear and reasonable â—osts about the Distress and if no Diâ—ess can be found on the said Digâ—â—y c. then the Predecessor if he be alive and if dead his Executors Administrators and other to whom his Goods and Chattels shall appertain or belong shall be compelled to pay the same by Bill in Chancery or Action of debt to be prosecuted by such successor by Order of the Common Law 27 H. 8. cap. 8. 1 Eliz. cap. 4. When the Year for first Fruits shall begin Note that the Year for the first Fruits is to begin from the time of the avoidance or vacation of the Benefice c. and the Tythes Fruits Oblations Obventions c. during the time of such vacation are to go to such Person as shall be next presented c. to the same Benefice or Dignity and to his Executors towards the payment â—â— the first Fruits And if any Archbishop Bishop Archdeacon Ordinary or any other Person or Persons to theâ—â— uses and behoofs do receive and takâ— the said Tythes c. and do not upoâ— reasonable request tender and pay tâ—â— same to the next Incumbent beinâ— lawfully Instituted Inducted or Aâ—mitted to such Benefice c. then thâ— shall forfeit and lose the treble valâ— of so much as they have received of tâ—â— Fruits c. one Moiety to the Kiâ—â— and the other to the Incumbent to â— recovered in any of the King's Courts by Action Bill Plaint Information or otherwise but every Archbishop c. may Retain so much of the Tythes c. in their hands as shall pay for serving the cure during such vacation and the charges of gathering the said Tythes c. and where the Fruits of the vacation of such Spiritual Promotion be not sufficient to pay the Curate's stipend and wages for serving the cure then the same is to be paid by the next Incumbent within fourteen daies next after that he hath the Possession of the said Promotion Spiritual 28 H. 8. cap. 11.1 Eliz. cap. 4. Churches Vnited to pay first Fruits and Tenths By the 37 H. 8. there was saved to the King his Heirs and Successors all the Tenths and first Fruits of all such Churches and Chapels as then were or afterwards should be United and Consolidated in one according to the same or such like rates and valuations as the same Churches and Chapels were then rated and valued at to the King's Majesty in his Court of first Fruits and Tenths 37 H. 8. cap. 21. Collectâ—rs of Tenths to be bound for the
payment of the same All Collectors of Tenths under any Archbishop or Bishop having Letters Patents or other writings of their Office of Collectorship are to be bound by their sufficient writing Obligatory or Recognizance in the Court where the King's revenues of the Tenths shall be answerable in such sum or sums of money as shall be due within their Collection or Office to save and keep the said Archbishop or Bishops harmless and without damage against the King for the same and all such Grants Patents or Writings to such Collectors shall continue no longer in force then during such time as such Archbishop or Bishop who granted the same shall remain Archbishop or Bishop of the same See or Bishoprick whereof he was possessed when he granted the same 7 E. 6 cap. 4. and by the 14 Eliz. cap. 7. the Lands and Tenements Goods and Chattels of such under Collectors of Tenths are made liable to answer the Queen her Heirs and Successors for such sums as they shall gather yearly within their Collection and every Archbishop Bishop and Dean and Chapter sede vacante to whom the Collection of such Tenths shall appertain shall be discharged of so much as shall be satisfied of or by the Lands Tenements Hereditaments Goods oâ— Chattels of such under Collector or his Heirs without any other Warrant whatsoever in that behalf to be obtained 14 Eliz. cap. 7. 13 Eliz. cap. 4. First Fruits in what time to be paid Vicarages not exceeding ten pounds and Parsonages not exceeding ten marks in the King's Books are not to pay any first Fruits as is shewed before and every Incumbent liable to pay first Fruits that lives one half Year after the last avoidance so as he hath or might have received the Rents and Profits of that half Year and before the end of the next half Year he happen to dye or be Lawfully evicted removed or put from the same Promotion Spiritual by Judgment in an action at Common Law without Fraud or Covin then he is to pay but a fourth part of the first Fruits and if he Live one Year and dye or be evicted c. before the next half Year then he is to pay one half of his first Fruits and if he Live one Year and an half and dye or be evicted c. before the end of six Months then next following then he is to pay three parts of his first Fruits and if he Live two Years then he must pay his whole first Fruits for such Promotion Spiritual 1 Eliz. cap. 4. By the 1 Eliz. all Grants Immunities and Liberties given to either of Colleges c. discharged of first Fruits c. the Universities of this Kingdom or to any College or Hall in either of them and to the Colleges of Eaton and Winchester by any of the Kings of England or by Act of Parliament touching the release or discharge of first Fruits and Tenths are to be and remain in full force and strength and that all such conveyances and assurances in Law as were then had or made to either of the Universities or to any College or Hall within either of them or of any of the Parsonages or Benefices Impropriate or of any Patronage for the maintenance of students or learning are good and effectual notwithstanding the same Act of Parliament and all the Possessions of the free Chapel Deanry and Canons of Windsor are discharged of Tenths and first Fruits but all the Rectories and Spiritual Promotions belonging to the Archdeaconry oâ— Wells are made chargeable to the payment thereof and all the Rectories Parsonages and Benefices Impropriate Glebe Lands Tythe Oblations Obventions Pensions Portions and other Profits and Emolluments Ecclesiastical and Spiritual as were in the Survey Rule and Order of the Court of the Dutchy of Lancaster were to continue so And lastly by the same Act it is provided that no Hospital founded and used and the Possessions thereof imployed to and for the use and relief of Poor People or any School or Schools or the possessions or revenues of them shall be charged with the payment of any Tenths or first Fruits 1 Eliz. cap. 4. A demand of Tenths how and where to be made Note that the demand of the Tenths ought to be express and not a summons to pay them at another place as appears by the Case following An Apparator came to the Church to the Parson and said to him that he must pay his Tenths to such an one and at such a place being four miles distant from the Church and the Parson not paying the Bishop certifies according to the Statute that he refused to pay his Tenths and whether this were a good demand or no was the Question and all the Justices agreed that it was not for they said a summons to pay was not sufficient but it ought to be an express demand and by one who hath Authority to receive it M. 39 40 Eliz. C. B. Reyner and Parker's Case M. Rep. f. 541. pl. 714. Bishop's Certificate of what force The Bishop of York certified in the late Court of first Fruits and Tenths Anno 5 6 E. 6. in these words adhibuimus omnimodam diligent per Subcollectores nostros per totam diocesim Eborum Et comperimus I. C. Vicarium de Gargrave Recusantem solvere subsidia Vicariae suae qui nullo modo metu paenarum huiusmodi produci potuisset ad solutionem subsidii praedict sed perseverans in obstinatiori sua malitia and this is left as a quaere in Dyer whether by this Certificate the Vicarage were void or no Dyer f. 116. a. pl. 69. but in Crook's reports it is said there that the Justices held such a Certificate not to be Peremptory but that it may be Traversed for the Bishop doth it only as an Officer and not as a Judge as in Case of Bastardy and here is to be a default in the Parson viz. not payment which is tryable per pais for otherwise all the Parsons in England may be put out of their Parsonages by such nude surmise and bare Certificate without any answer and the Law never intended to make the Certificate so Peremptory as the Book saith and it is there said also that the Officer of the Bishop which is to demand the Tenths ought also to be Authorized to receive them for he cannot appoint them to be paid at another place or to another Person for the Parson is to pay them at his own House and to the Person that demands them in the Name of the Bishop M. 29 30 Eliz. in Scaccario the Queen and Blancher's Case Cro. Eliz. f. 80. pl. 44. Dilapidations cause of deprivation Now we come to Dilapidations which every Clergy Man ought to take care to prevent for there can be nothing worse becoming the Dignity of a Clergy-man than Dilapidations and non residence and as the Canon Law made Provision against it so also hath the Common Law of this Kingdom as appears
by the Books of 20 H. 6. 46. a. 2 H. 4. 3. b. 29 E. 3. 16. a. for if Spiritual Persons waste the Lands Woods or Houses of their Churches they may be deprived or deposed by their Superiours who have the Visitation and Superiority over them Roll's Rep. 1 part f. 167. Godb. Rep. f. 259. pl. 357. Grants to avoid remedy for Dilapidations made void And by the 13 Eliz. it is enacted that if any Archbishop Bishop Dean Archdeacon Provost Treasurer Chaunter Chancellor Prebendary or any other having any Dignity or Office in any Cathedral Church within this Realm or if any Parson Vicar or other Incumbent of any Ecclesiastical Living whereunto do belong any House or Houses or other buildings which by Law or Custom he is bound to keep and maintain in reparation do make any deed or deeds of gift or alienation or other like conveyances of his moveable Goods or Chattels to defeat or defraud his Successor of his just action and remedy then in such Case the Successor may have the same remedy in the Spiritual Court against the Grantee of the same Goods Chattels for reparation of the Dilapidations as he might or should have had against the Executors or Administrators of the Predecessor for the same 13 Eliz. cap. 10. And such fraudulent deeds also to defraud Persons of their just Debts Suits Accompts Dammages Penalties Forfeitures Herriots Mortuaries and Reliefs by another Act in the same Parliament are made void to such Persons to whom any such thing is due and to their Heirs Successors Administrators and Assigns and those whoshall set such Covenous and Fraudulent deeds afoot being privy to or knowing of the same forfeit the value of all such Goods and Chattels and all such money as shall be contained in such covenous and fained Bond one Moiety to the King and the other to the party grieved to be recovered in any of the King's Courts of record 13 Eliz. cap. 5. Moneys recovered for Dilapidations to be imployedure pairs By the 14 Eliz. it is enacted that all sums of money that shall be recovered for or in the name of Dilapidations by Sentence Composition or otherwise shall within two Years after the recept be truly imployed upon the Buildings and Reparations in respect whereof such money for Dilapidations shall be paid on pein that every Person so receiving and not imploying as aforesaid shall forfeit double as much as so by him shall be received and not imployed the which forfeiture shall be to the use of the Queens Majesty her Heirs and Successors 14 Eliz. cap. 11. A Prohibiâ—ion lies against one that would wast the Woods of the Church If a Parson of a Church and one A. are Tennants in Common of a Wood and A. endeavours to make waste in the Trees the Parson for preservation of the Timber Trees may have a Prohibition against him that he shall doe no waste and the reason thereof as the Chief Justice said was that if the Parson of a Church would waste the Inherritance of his Church to his private use in cutting down the Trees the Patron may have a Prohibition against him for the Parson is seized in right of his Church and his Glebe is the Dower of his Church for he is Indowed thereof and so say many ancient records and so because a Prohibition lies against him it is reason that he shall have the same remedy against him who holds in Common with him F. N. B. 49 Co. Rep. 11 Lib. f. 49. a. The Lord Cook saith there was a notable Resolution in Parliament held A Prohibition granted against the Bishop of Durham 35 E. 1. at Carlisle 35 E. 1. against Clergy-men making waste of their Spiritual Promotions I shall set it down verbatim as he inserts it viz. Voile Nostre Seignior Le Roy entendre que Sir Anthony Evesque de duresme waste destruit tout le Bois apperteinant à Son Esglise in Lenesquerie de duresme per done vende manuais gard per rearer des forge de Ferre Plombe ardre Carbons c. dot si Nostre Seignior Le Roy que est Avowee del Esglise ny ymit remedie Lefglise avandit serra dishâ—rite impoverie in prejudice de nostre Seignior Le Roy in sa Corone de Chapter de duresme To which the answer was Inhibeatur per Breve de Cancellaria Episcopo Ministris suis ne faciat vastum de contentis in Petitione by which it appears that the Parliament referrs him to the ordinary remedy of the Common Law by Writ of Prohibition in such Case 35 E. 1. Co. Rep. 11 Lib. f. 49. a. vide Roll's Rep. 1 part f. 86. 176. 335. And the Lord Cook saith further A Prohibition granted against the Bishop of Dublin c. that M. 23 E. 1. amongst the Judgments before the King Hunt f. 83. in the Treasury of the Exchequer it is thus adjudged quod Ecclesia est infra aetatem et in custodia domini regis qui tenetur jura et haereditates ejusdem manutenere et defendere et Rot. patent Anno 14 H. 3 M. 8. Archiepiscopus Dublin fecit finem de 300 marcis deafforestroatione forestae Archiepiscopatus sui and see 2 H. 4. f. 3. b. If a Bishop or Archdeacon pull down and cut all the Woods which he hath he shall be deposed as a Dilapidator of his House 29 E. 3. 16 Ac. and see 27 Ass pl. 10. 20 H. 6. 46 Co. Inst 3 part f. 304. And the Tratise Intituled Ne Rectores prosternant arbores in coemeterio c. is no more but a Declaration of the Common Law and it is regularly true meliorem conditionem Ecclesiae facere potest Praelatus deteriorem nequaquam Co. Rep. 11 Lib. f. 49. b. Where suits for Dilapidations are to be Although suits for Dilapidations are most properly to be sued in the Spiritual Court and if any Prohibition be granted the same ought to be superseded by a Consultation as F. N. B. saith f. 50. F. yet this is intended where the suit is grounded upon the Canon Law for by the Custom of England the Successor may have a special Action upon the Case against the Dilapidator his Executors or Administratros and in the King's Bench it was agreed by all the Justices that a Prohibition is grantable against one who wasts the Houses of a Parson Incumbent or cuts the Trees or makes waste and sells them and does not employ them for repairs vide 2 H. 4 3. M. 12. Jac. B. R. Bishop of Salisbury's Case Godb. Rep. f. 259. pl. 357. H. 13. Jac. B. R. Saccar's Case M. Rep. f. 916. pl. 1303. and so it was also agreed M. 12 Jac. B. R. Stockman's and Wither's Case Roll's Rep. 1 part f. 86. pl. 34. vide f. 335 Boulstr Rep. 3 part f 91 92. The Vicar of the Parish of Alesbury For what use Clergy-men may fell down Wood. in Devon-shire
had cut divers great Trees of Timber and did not Repair the Church with them and upon Suggestion thereof to the King's Bench and that he would cut more Trees in like manner a Prohibition was thereupon granted by the Court H. 13. Jac. B. R. Knowl's and Hargrave's Case Roll's Rep. 1. part f. 335. pl. 44. and Cook Lord Chief Justice M. 12. Jac. said that a Bishop is only to fell Timber for Building for Fewel and for his other necessary occasions and there is no Bishoprick but the same is of the Foundation of the King and the Woods of the Bishoprick are called the Dower of the Church and these are alwayes carefully to be preserved and if he fell and destroy them upon motion to the Court a Prohibition will be Granted and so it shall be also in the Case of a Dean and Chapter Boul. Rep. 2. part f. 279. Mortuaries where and how to be paid As to Mortuaries observe that by the 21 H. 8. it is Enacted that no Mortuary or Corse present shall be given or demanded of any Person but only in such place where heretofore Mortuaries have been used to be paid and given nor shall any Person pay Mortuaries in more places than one that is to say in the place of his most habitation or dwelling and there but one Mortuary and no Mortuary shall be taken or demanded of any Person whatsoever he be which at the time of his death hath in moveable Goods under the value of Ten Marks Neither shall any Parson Vicar Curate c. nor any of their Farmers Bayliffs or Lessees take for any Person dying or dead and at the time of his death being in moveable Goods to the value of Ten Marks or more his Debts being paid and under Thirty pounds above the sum of Three shillings and four pence for his Mortuary in the whole nor where the Goods amount to Thirty pounds or more above his Debts paid and under Forty pounds above the value of Six shillings and Eight pence for his Mortuary in the whole nor where the Goods amount to Forty pounds or above to any sum whatsoever above his Debts paid more than the sum of Ten shillings for his Mortuary in the whole 21 H. 8. cap. 6. Swin Test part 6. § 16. Godol Or. Legacy f. 148. Nor shall any Parson Vicar Curate Who are to pay no Mortuaries c. or other take demand or ask any Mortuary or any other thing by way of Mortuary of any Woman being Covert Baron nor for any Child nor any Person not keeping House nor for a Wayfaring Man or other that maketh no Residence in the place where they shall happen to dye but the Mortuary of such Wayfaring Man shall be answerable in places where Mortuaries are accustomed to be paid in Manner Form and Rate before mentioned and not otherwise in the places where such Wayfaring Persons at the time of their death had their most Habitation House and dwelling places and no where else 21 H. 8. cap. 6. Swin part 6. § 16. Godol f. 148. Where Mortuaries 〈◊〉 not to be 〈◊〉 No Mortuaries nor Corse present â—or any Sum of Money or other thing for them shall be demanded or had in the Parts of Wales nor in the Marches of the same nor in the Town of Barwick nor Marches of the same but only in such places where Mortuaries have been accustomed to be paid neither shall any Mortuaries or Corse present nor any thing for the same be demanded or had in those places but only after the order and manner above specified and none otherwise nor of any other Person than is above Limited But it is made Lawful for the Bishops of Bangor Landaffe St. Davids and St. Asaph and likewise to the Arch-deacon of Chester to take such Mortuaries of the Priests within their Diocesses and Jurisdictions as heretofore have been accustomed 21 H. 8. Cap. 6. Swin part 6. § 16. Godol f. 148. And in such places where Mortuaries Mortuaries to be paid according to Custom c. have been accustomed to be taken of less value than is aforesaid there they shall not be compelled to pay any other Mortuaries or more for any Mortuary than hath been accustomed nor shall any Mortuary be demanded taken or had in such place of any Person or Persons exempted by the Act nor contrary to the said Act And if any Parson Vicar Curate c. or their Farmers Bayliffs c. do take receive or demand of any Person within this Realm for any Person dying within the same a Mortuary c. more than is before mentioned or do Convent or call any Person or Persons before any Judge Spiritual for the Recovery of any such Mortuary c. more than is before mentioned he shall forfeit for every time so demanding conventing c. so much in value as he shall take above the Sum Limited and also Forty shillings to the Party grieved contrary to the Act to be Recovered in any of the King's Courts c. but it is Lawful for any Spiritual Person to take any Sum of Money or other thing which by any Person dying shall be given or bequeathed unto him or to the High Altar of the Church 21 H. 8. cap. 6. and all fraudulent Deeds made to deceive any of their Mortuaries are made void by the 13 Eliz. cap. 5. Prohibition lyes not when The King's Prohibition doth not lye when any Oblations Obventions or Mortuaries where Mortuaries have been used to be paid be by those Names demanded in any Ecclesiastical Court although for the long with-holding of the same they be esteemed at a certain Sum of Money Articl Cleri 9 E. 2. cap. 1. vide Co. Inst 2. part f. 491. 619. but Doctor and Student Lib. 2. cap. 55. saith a Prohibition doth lye Quaere And where Mortuaries are due they How Mortuaries are payable ought to be paid out of the Death's part only and not out of the whole before division where by the custom of the Country the Widow and Children are to have their Reasonable parts by the opinion of Dr. Swinburne and his Reason is because a Mortuary is of the Nature of a Legacy and Termed in Law the Principal Legacy And being that Legacies are to be paid out of the Death's part therefore the Mortuary is to be paid out of the same part but before any other Legacy and without any defalcation as well for that it is a Principal Legacy as by force of the Statute aforesaid Swin Test part 6. § 16. in fine Six things due to the King upon the death of every Bishop After the Death of every Bishop there is a Duty due to the King which some have called a Mortuary but the Lord Cook saith it is not any Mortuary but he saith true it is that the King after their Deceases hath Six things viz. Optimum Equum sive Palefridum ipsius Episcopi cum Cella Freno 2. Vnam Chlamydem sive
Clocam cum Capella 3. Vnum Ciphum cum coopertorio 4. Vnum Pelvem cum Lavatorio sive Aquar ' 5. Vnum Anulum Aureum 6. Necnon Mutum Canum quae ad Dominum Regem ratione Prerogativae suae spectant pertinent inter Communia H. 2. E. 2. in Scaccar post mortem Episc Bath Well Tr. 36. E. 3. Ibidem post mortem Episc Cirences H. 5. E. 4. Ibidem Rot. 47. post mortem Archiep. Ebor. Co. Inst 2. part f. 491. For this duty there is a special Writ A Writ lyes for these things after every Bishops death see the form thereof Co. Inst 4. part f. 338. that issueth out of the Exchequer after the Decease of the Bishop for answering of the same and in the Records this is called Multa Episcopi or Multura Episcopi derived à Mulcta for that it was a Fine or Final satisfaction given to the King that they might have power to make their Last Wills and Testaments and to have the probate of other Mens Testaments and granting Administrations for it is true where it is said Nullam habebant Episcopi Authoritatem praeter eam à Rege acceptam referebant Jus Testamenta probandi non habebant Administrationis potestatem cuiquam delegare non poterant nec ipsi quidem Testamenta facere de Jure Communi dum id illis regnante Henrico Tertio Concessum erat Confirmatum vivente Edw. 1. Rot. Claus 7 H. 3. M. 16. Rot. Parl. 36. H. 3. M. 1. And Linwood saith Beneficiatus non potest testari de communi Jure sed de Consuetudine Angliae And he saith also that Probate of Testaments de Consuetudine Angliae non de Jure Communi belong to Court Christian Lin. cap. de Foro compet f. 7. Lib. 7. f. 44. vide Britton f. 11. b. Bract. Lib. 5. f. 403. c. Fleta Lib. 2. cap. 53. Lib. 6. cap. 36. Co. Inst 2. part f. 488. 491. but this seems to be a Digression from our intended purpose but I hope the Reverend Clergy-man will Pardon it vide Co. Inst 4. part f. 338. Prohibition where a Mortuary is demanded when grantable The Bishop of Chester in the Consistory Court of Chester before the Commissary there Sued for a Mortuary after the Death of William Hinde a Priest of the said Diocess Surmising that by Custom there he ought to have for a Mortuary after the Death of every Priest dying within the said Arch-deaconry of Chester the best Horse or Mare his Saddle Bridle and Spurs his best Gown or Cloak his best Hat his best upper Garment under his Gown his Tippet his best Signet or Ring as to the Bishop de debit ' consuetud fore supponitur c. upon this the Defendant obtained a Prohibition averring that there is no such Custom and that she had paid a Mortuary to the Parson of Bumberry and in this Case it was moved for a Consultation and the Suit being for a Mortuary the Court was divided in opinion but it appearing that the Bishop had Sued after the Prohibition which was a Contempt and ought to be answered it was thereupon appointed that he should Plead or Demur And then the Court would give Judgment upon the Record before them M. 7. Car. 1. B. R. Margaret Hinds Case and the Bishop of Chester Cro. Car. f. 237. CHAP. IX What Qualifications are required in Leases made by Ecclesiastical Persons FOrmerly by the Common Law Bishops What Estates Biâ—hops c. might have made by the CommonLaw with the Confirmation of the Dean and Chapter Master and Fellows of any Colleges Deans and Chapters Masters or Guardians of Hospitals and their Brethren Parsons and Vicars with Consent of the Patron and Ordinary Arch-deacon Prebend or any other Body Politick Spiritual and Ecclesiastical Concurrentibus his quae in Jure requiruntur might have made Leases for Lives or Years without Limitation or Stint And so might they have made Gifts in Tail or Estates in Fee at their own Will and Pleasure whereupon not only great decay of Divine Service but Dilapidations and other Inconveniences ensued but now the Law is altered in these Cases by the Statutes of the 32 H. 8. 1 Eliz. 18. Eliz. 13. Eliz. 1. Jac. of which Statutes one is enabling and the rest disabling Co. Lit. f. 44. a. I shall first begin with a Recital of Leases in Writing by certain Persons of what force c. the Statutes then give you the Book Cases thereupon By the Stat. 32. H. 8. All Leases to be made of any Mannors Lands Tenements or Hereditaments by Writing endented under Hand and Seal for Term of years or for Term of Life by any Person or Persons being of full Age of One and twenty years having any Estate of Inheritance either in Fee-Simple or in Fee-Tail in their own Right or in the Right of their Churches or Wives c. shall be good and effectual in the Law against the Lessors their Wives Heirs and Successors and every of them according to such Estate as is Comprised and Specified in every such Indenture of Lease in like manner and form as the same should have been if the Lessors thereof and every of them at the time of making such Leases had been Lawâ—ully seized of the same Lands Tenements and Hereditaments comprised â—n such Indenture of a good perfect â—nd pure Estate in Fee-Simple thereâ—f to their own only uses 32 H. 8. â—â—p 28. Provided that this Act shall not extend to any Leases to be made of any Old Leases to be Surrendred c. Mannors Lands c. being in the hands of any Farmer or Farmers by virtue of an Old Lease unless the same Old Lease be expired surrendered or ended within one year next after the making of the said new Lease nor shall extend to any Grant to be made of any Reversion of any Mannor Lands c. nor to any Lease of any Mannors Lands c. which have not most commonly been letten to Farme or occupied by the Farmers thereof by the space of Twenty years next before such Leases thereof made nor to any Lease to be made without Impeachment of Wast nor to any Lease to be made above the number of One and twenty years or Three Lives â—â— the most from the day of the making thereof And that upon every sucâ— Lease there be reserved yearly duriâ—â— the same Lease due and payable â—â— the Lessors their Heirs and Successoâ— to whom the same Lands should haâ—â— come after the death of the Lessors if no such Lease had been there made and to whom the Reversâ— thereof shall appertain according their Estates and Interests so much yearly Farm or Rent or more as hath been most accustomably yielded and paid for the same within Twenty years next before such Lease thereof made And that every such Person and Persons to whom the Reversion of such Mannors Lands c. so to be letten shall appertain as aforesaid
after the deaths of such Lessors or their Heirs shall and may have such like Remedy and Advantage to all Intents and Purposes against the Lessees thereof their Executors and Assigns as the same Lessors should or might have had against the same Lessees c. 32 H. 8. cap. 28. Parsons and Vicars excepted out of the Act. And it is also further provided that this Act shall not extend to give any Liberty or Power to any Parson or Vicar of any Church or Vicarage for to make any Lease or Grant of any of their Messuages Lands Tenements Tithes Profits or Hereditaments belonging to their Churches or Vicarages otherwise or in any manner than they should or might have done before the making of the same Act any thing therein contained to the contrary thereof Notwithstanding 32 H. 8. cap. 28. By the 1 Eliz. All Gifts Grants Leases by Bishâ—ps c. to be made for 21 years or 3 Lives Feoffments Fines and other Conveyances or Estates from the first day of the said Parliament to be made done or suffered by any Arch-bishop or Bishop of any Honors Castles Mannors Lands Tenements or other Hereditaments being parcel of the Possessions of his Arch-bishoprick or Bishoprick or united appertaining or belonging to any of the same to any Person other than to the Queen Heâ— Heirs or Successors whereby any Estate should or might pass from the Arch-bishop or Bishop other than for the Term of One and twenty years or Three Lives from such time as any Lease Grant or Assurance shall begin or whereupon the old accustomed Renâ— or more shall be reserved payable yearly during the said Term of Onâ— and twenty years or Three Lives shalâ— be utterly void 1 Eliz. cap. 19. Bâ— by the 1 Jac. All Arch-bishops anâ— Bishops are disabled in Law to make doe levy or suffer any Act or Acts thinâ— or things whereby or by means where of any of the said Honors Castles Mannors Lands c. shall or may bâ— Aliened Granted c. to the King His Heirs or Successors but that all such Grants shall be void 1 Jac. cap. 3. Co. Rep. 10. Lib. f. 62. a. 11. Lib. f. 71. b. 72. a. Leases made by Spiritual Persons c. for what Term to continue And by the 13 Eliz. it is enacted that all Leases Gifts Grants c. to be made had done or suffered by any Master and Fellows of any College Dean and Chapter of any Cathedral or Collegiate Church Master or Guardian of any Hospital Parson or Vicar or any other having any Spiritual or Ecclesiastical Living or any Houses Land Tythes Tenements or other Hereditaments being any parcel of the possessions of any such College Cathedral Church Chapel Hospital Parsonage Vicarage or other Spiritual Promotion or any waies appertaining or belonging to the same or any of them to any Person or Persons Bodies Politick or Corporate other then for the Term of 21 Years or three Lives from the time as any such Lease or Grant shall be made or granted whereupon the accustomed yearly Rent or more shall be reserved and payable yearly during the said Term shall be utterly void and of none effect to all intents constructions and purposes but it is provided that nothing in this Act shall be taken or construed to make good any Lease or other Grant to be made by such College or Collegiate Church within either of both the Universities of Oxford and Cambridge or else where within the Realm of England for more Years then are limited by their private Statutes 13 Eliz. cap. 10. vide 14 Eliz. cap. 11. Leases by â— Parsons c. to be void upon non residence And further it is enacted that no Lease to be made of any Benefice or Ecclesiastical Promotion with cure or any part thereof and not being impropriated shall endure any longer then while the Lessor shall be Ordinarily Resident and serving the cure of such Benefice without absence of fourscore daies in any one Year but that every such Lease immediately upon such absence shall cease and be void and the Incumbent so offending shall for the same loose one Years profit of his said Benefice to be distributed by the Ordinary among the poor of the Parish And that all chargings of such Benefices with cure other then Rents to be reserved upon Leases shall be utterly void provided that every Person allowed to have two Benefices may demise the one of them upon which he shall not be most Ordinarily Resident to his Curate only that shall there serve the cure for him but such Lease shall endure no longer then during such Curate's Residence without absence above forty daies in any one Year 13 Eliz. cap. 20. 14 Eliz. cap. 11. Bonds c. for enjoying c void Likewise all Bonds Contracts Covenants and Promises made for suffering or permitting any Person to enjoy any Benefice or Ecclesiastical Promotion with cure or to take the profits thereof shall be to all intents and purposes adjudged of such force and validity and not otherwise as Leases by the same Persons made of such Benefices c. with cure and that all such Leases Bonds c. concerning such Benefices and Ecclesiastical Promotions with cure made by any Curate shall be of no other nor better force validity or continuance then if the same had been made by the Beneficed Person himself that demiseth the same to any such Curate But Masters and Fellows of Colleges Deans and Chapters of Cathedral or Collegiate Churches Masters or Guardians of any Hospital or any Parson or Vicar or any other having any Spiritual or Ecclesiastical Living may make a Grant Assurance or Lease of their Houses and Grounds appertaining to the same being situate in any City Borough Town Corporate or Market Town or the Suburbs of any of them after such manner as their several Statutes do permit so that such House be not the Capital or dwelling House used for the habitation of the Persons abovesaid nor have Ground to the same belonging above the quantity of ten Acres 14 Eliz. cap. 11. vide Tr. 14 Jac. C. B. Crane and Taylor 's Case Hob. Rep. f. 269. Leases of Houses in Câ—tâ—â—s c. how long to continue But it is provided by the same Statute that no Lease be made in Reversion nor without reserving the accustomed yearly Rent nor without charging the Lessee with reparations nor for longer Term then forty Years at the most nor are any Houses to be aliened unless that in Recompence thereof there shall afore with or presently after such alienation be good lawfull and sufficient assurance made in Fee simple absolutely to such Colleges Houses Bodies Politick or Corporate and their Successers of Lands of as good value and of as great yearly value at the least as so shall be aliened any Statute to the contrary notwithstanding 14 Eliz. cap. 11. Old Leases to be ended within three Years when a new Lease is made And by
is not good to bind the Successor but if a Bishop had two Chapters and one of them surrender without the Bishop's Licence is suspended or dissolved then the confirmation of the other is sufficient and this question coming in debate amongst the Justices in Ireland in a Case concerning a Lease made by the Bishop of Dublin and the Justices there being divided in Opinion Dyer and the rest of the Justices of the Common Pleas here in England were all of Opinion that after surrender c. such a Confirmation by one Chapter was good though formerly it used to be by both and a Certificate thereof was made accordingly of their Opinions to Sir Henry Sidney Knight Lord Debuty of Ireland P. 11 Eliz. Dyer f. 282. b. pl. 26. and see Roll's Cases 1 part f. 477 H. 4 5 and 6. Confirmation before Inrollment good c. If a Bishop make a Lease to the King for Years and before Inrollment thereof the Dean and Chapter confirms it and after the Lease is Inrolled this is a good Confirmation for this is only an Assent which may be as well before the Lease as after Tr. 8 Jac. in Scaccar Sir Edward Dimmock's Case Roll's Cases 1 part f. 478. but a Confirmation after the Death of the Bishop comes too late by the Opinion of Catlin Southcoâ—e and Windham Harur's Rep. M. 14 and 15. Eliz. Grants c not warranted by the Statutes bind the Grantors And note that although it be said â—y the 1 Eliz. 13 Eliz. that all Grants Leases c. made granted c. other then Leases for three Lives â—â— one and twenty Years according â—â— those Acts should be utterly void and of none effect to all Intents Constructions and Purposes yet Grants or Leases c. not warranted by those Statutes though they are void against the Successor yet they are good and shall bind the Grantor or Lessor if it be a Sole Corporation or so long as the Dean or other Head of the Corporation remain if it be a Corporation agregate of many for the Statute was made in benefit of the Successor Co. Lit. f. 45. a. Co. 3 Lib. f. 59 b. 60. â— P. 39 Eliz. C. B. Hunt and Singleton's Case there cited to be so adjudged Brow Rep. 2 part f. 134 135. Godâ— Rep f. 302. vide P. 10 Jac. Waltâ—â— and Dean and Chapter of Norwich Case M. f. 875. pl. 1223. in fine Câ— Rep. 10 Lib. f. 59. a. 11 Lib. f. 73. a Confirmations by whom â—o be made Observe that concurrent Leasâ—â— made by Archbishops and Bishops aâ—â— to be confirmed by the Dean and Chapter or Deans and Chapters if there bâ— several Chapters Grants made by Dean are to be confirmed by the Bishop and Chapter Grants made by â— Archdeacon or Prebend by the Bishoâ— Dean and Chapter Dyer f. 61. a. â— 30 Roll's Cases 1 part f. 481. P. â— 3. and the Grants of Parsons and Vâ—cars are to be confirmed by their Patrons and Ordinaries Co. Rep. 11 Lib. f. 77. a. Roll's Cases 1 part f. 481 Q. 2. and Grants by an Incumbent of a Donative by the Patron alone Roll's Cases 1 part f. 481 R. 1. and where the Patron of a Prebend then the King and Dean and Chapter and not the Bishop ought to confirm Confirmation of the Bishop alone where good Where a Parson of a Church of which the Bishop is Patron and Ordinary makes a Lease which is confirmed by the Bishop without the Dean and Chapter who ought to have joyned and afterwards the Parson dyes and the Bishop Collates another to the Benefice who makes a Lease of his Parsonage which is confirmed by the Bishop and Dean and Chapter and afterwards the Bishop is Translated in this Case it was held the first Lease was good and that it should be binding during the Life of the Bishop and Successor Incumbent who found the Church charged P. 19 Eliz. C. B. Dyâ—r f. 356. b. pl. 42. so if a Prebend make a Lease and the Bishop being Patron confirms it though this be not good to bind the Successor of the Bishop yet this shall bind the Bishop during his Life and all claiming under him for the Confirmation of the Dean and Chapter is required only that the Possessions be not aliened in prejudice of the Successor and so it was agreed in point in Smyth and Bowl 's Case Tr. 15 Jac. B. R. Roll's Cases 1 part f. 479 M. 2 3. f. 481. P. 2. vide Leon. Rep. 1 part f. 235. Assent a good Confirmation If a Dean Lease any of his Possessions of which he is Sole seized with the Assent of the Chapter this is a good Confirmation because the Dean hath solely the Estate and the Writ desine assensu Capituli does prove that there needs only an Assent and if a Dean be Sole seized and not with Chapter of certain Possessions and Lease them by these words in the Deed quod Deoanus ex assensu totius Capituli dâ—misit and the Seal of the Chapter â—â— put to the Deed this is a good Confirmation for it is a good Assent but the Dean and Chapter are jointly seized and the Dean Leases with Assent of tâ—â— Chapter and annexes the Seal of tâ—â— Chapter to the Deed this is void aâ— shall not bind the Chapter becauâ—â— they have an Estate in them as well the Dean hath in him and may maâ—â— P. 10 Jac. B. R. inter Tomlinson and Crook so agreed vide 21 H. 7. 7. Hil. 29 H. 8. C. B. Chasin's Case Dyer f. 42. b. pl. 72. Roll's Cases 1 part f. 478 R. 1. 2. 4. Confirmations when void Grants by Parsons Vicars Prebends c. after Collation Admission and Institution and before Induction or Installation although confirmed as aforesaid are not binding to the Successor for Persona Ecclesiae nunquam dicitur Impersonat ' ante inductionem nec habet jus in re sed ad rem ante inductionem P. 5. Eliz. C. B. Dyer f. 221. pl. 18. Confirmation for part of the Term good If a Parson Vicar Prebend c. make a Lease for Years the Land may be confirmed to the Lessee for part of the Term that is for so many Years thereof but if dimissionem praedictam be confirmed for part of the Term et â—â—n ultra that would be absurd and reâ—ugnant and would stand good for the whole Term and as such Lease may be confirmed for part of the Term so it â—ay for part of the Land M. 16 17. Eliz. C. B. Dyer f. 338. b. pl. 43. f. â—2 b. pl. 4. vide M. 37 38 Eliz. C. â— Bellfore and Foord's Case Cro. Eliz. f. â—47 pl. 12. f. 472. pl. 34. Co. â—ep 5 Lib. f. 81. A Parson made a Lease which was Succeeding Patron c. confirms and good confirmed by the succeeding Bishop and Patron neither of them being Bishop or Patron when the Lease was made
if a Spiritual Person without Fraud or Covin do buy any Horses Mares or Mules for himself or Servants to ride about their necessary business or any other Cattel or Goods to be imployed and put in and about his necessary apparel of his own House or of his Person or Servants or in for or about the occupying manuring or tillage of his Glebe or Demesn Lands annexed to his Church or for the expenses of his Household keeping and after such buying they prove not for the purposes they were bought for then such Spiritual Person may Lawfully bargain and put away the same And it is further provided that every Spiritual Person not having sufficient Glebe or Demesn Lands in their own Hands in right of their Churches for Pasturage of Cattel or for increase of Corn for expences of their Households or for their Carriages or Journies may Farm other Lands and buy and sell Corn and Cattel for the only manuring tillage and pasturage of such Farms so that the increase thereof be alway imployed and put to and for the only expences in their Households and Hospitalities and not in any wise to buy and sell again for any other Commodity Lucre or Advantage any Corn or Cattel renewing coming or growing in and upon any such Farm or otherwise but only the Remainer and Overplus above their expences of their Household if any such shall happen to be bread and increase thereof without Fraud and Covin 21 H. 8. cap. 13. And it is further enacted that no The Penalty for kâ—â—â—iâ—g Tâ—â—â—â—â—use or Brew-house Spiritual Person Beneficed with cure of Souls shall occupy by himself or any to his use any Parsonage or Vicarage in Farm of the Lease or Grant of any Person or Persons nor take any Profit or Rent out of any such Farm upon pein to forfeit forty shillings a Week and ten times the value of the Rent or Profit he shall take out of such Farm And it is further enacted that no Spiritual Person of what degree or condition soever he be shall have use or keep by himself or any to his use any manner of Tan-house or Tanhouses Brew-house or Brew-houses to any other use intent or purpose then only to be spent and occupied in his or their own Houses upon pein to forfeit ten pounds a Month one Moiety to the King and the other to the Informer to be sued for as aforesaid 21 H. 8. cap. 13. They may Farm Houses c. But note it is provided by the said Statute that it may be Lawfull to every Spiritual Person or Persons to take in Farm any Messes Mansions or dwelling Houses having but only Orchards or Gardens in any City Borough and Town for their own habitation and dwelling so that no Person Spiritual other then such as are Licenced and allowed by Law have any Liberty of non residence by colour of the said Proviso 21 H. 8. cap. 13. An Information was exhibited against two Parsons upon the Statute 21 H. 8. against one of them for non residence and against the other for taking of a Farm and one of them pleaded sickness and that by advice of his Physicians he removed into better Air for recovery of his health and the other pleaded that he took the Farm only for the maintenance of his House and Family and these Pleas were held justifiable by the whole Court M. 10 Jac. I. S. Plaintiff against Martin and Gunnistone Boulstr Rep. 2 part f. 18. Priests c. punishable for incontinence In the 1 H. 7. I find a Statute in the Printed Books of Statutes put forth by Rastal Poulton and Keeble and not any where repealed that I can find so I suppose it is still in force and power by which Statute it is enacted that it shall be Lawfull to all Archbishops and Bishops and other Ordinaries having Episcopal Jurisdiction to punish and chastise Priests Clerks and Religious Men being within the bounds of their Jurisdiction as shall be convicted afore them by Examination and other Lawfull proof requisite by the Law of the Church of Advowtry Fornication Incest or any other fleshly incontinence by committing them to Ward and Prison there to abide for such time as shall be thought by their discretions convenient for the quality and quantity of their Trespass and none of the said Archbishops Bishops or other Ordinaries aforesaid shall be thereof chargeable to or upon any Action of false or wrongfull Imprisonment but that they be utterly thereof discharged in any of the Cases aforesaid by virtâ—â— of the said Act 1 H. 7. cap. 4. All Citations c. to be in the King 's Namâ— In the 1 E. 6. cap. 2. it is said that whereas the Archbishops and Bishops and other Spiritual Persons in this Realm do use to make and send out their Summons Citations and other Process in their own Names and in such Form and manner as was used in the time of the usurped power of the Bishop of Rome contrary to the Form and Order of the Summons and Process of the Common Law used in this Realm seeing that all Authority of Jurisdiction Spiritual and Temporal is derived and deducted from the King's Majesty as Supream Head of these Churches and Realms of England and Ireland and so justly acknowledged by the Clergy of the said Realms that all Courts Ecclesiastical within the said two Realms be kept by no other Power or Authority either forreign or within the Realm but by the Authority of his most excellent Majesty it is therefore enacted that all Summons and Citations or other Process Ecclesiastical in all Suits and Causes of Instance betwixt party and party and all Causes of Correction and all Causes of Bastardy oâ— Bigamy or Jure Patronatus Probates of Testaments and Commissions of Administrations of Persons deceased and all acquittances of and upon accounts made by the Executors Administrators or Collectors of Goods of any Dead Person be from the first Day of July then next following made in the Name and with the Stile of the King as it is in Writs Original or Judicial at the Common Law and that the Test thereof be in the Name of the Archbishop or Bishop or other having Ecclesiastical Jurisdiction who hath the Commission and Grant of the Authority Ecclesiastical immediately from the King's Highness and his Commissary Official or Substitute exerciseing Jurisdiction under him shall put his Name in the Citation or Process after the Test â—1 E. 6. câ—p 2. The King'â— Arms c. to be put in the Seals of Office c. And it is further enacted that all manner of Person or Persons who have the Exercise of Ecclesiastical Jurisdiction shall have expressed in their Seals of Office the King's Highness Arms decently set with certain Characters under the Arms for the knowledge of the Diocese and shall use no other Seal of Jurisdiction but wherein his Majestie 's Arms be Ingraven upon pein that if any Person shall use Ecclesiastical
Jurisdiction in this Realm of England Wales or other his Dominions or Territories and not send or make out the Citation or Process in the King's Name or use any Seal of Jurisdiction other then before limitted that every such Offender shall incurr and run in the King's Majestie 's displeasure and indignation and suffer Imprisonment at his Highness's Will and Pleasure 1 E. 6. cap. 2. But it is provided that the Archbishop Archbishop of Canterbury c. may use his own Seal of Canterbury for the time being shall use his own Seal and his own Name in all Faculties and Dispensations according to the Tenor of an Act thereof made and that the said Archbishops and Bishops shall make Admit Order and Reform their Chancelcellors Officials Commissaries Advocates Procters and other their Officers Ministers and Substitutes and Commissions of Suffragan Bishops in their own Names under their own Seals as they have used heretofore And shall certify to the Court of Tenths their Certificates under their own Names and Seals and shall make Collations Presentations Gifts Institutions and Inductions of Benefices Letters of Order and Dimissories under their own Names and Seals as formerly notwithstanding the said Act or any thing therein contained 1 E. 6. cap. 2. Certificates how to be made And it is further provided that all Process to be made or awarded by any Ecclesiastical Person or Persons for the Tryal of any Plea or Pleas that shall depend in any of the King's Courts of Records at the Common Law and limited by the Laws and Customs of this Realm to the Spiritual Courts to try the same that the Certificate of the same after the Tryal thereof shall be made in the King's Name for the time being and with the Stile of the same King and under the Seal of the Bishop Graved with the King's Arms with the Name of the Bishop or Spiritual Officer being to the Test of the same Process and Certificate and to every of them 1 E. 6. cap. 2. Minister deprived by whom Note that when any Minister is complained of in any Ecclesiastical Court belonging to any Bishop for any crime the Chancellor Commissary Official or any other having Ecclesiastical Jurisdiction to whom it shall appertain shall expedite the Cause by Process and other Proceedings against him and upon Contumacy for not appearing shall first suspend him and afterward his Contumacy continuing Excommunicate him But if he appear and submit himself to the course of Law then the matter being ready for Sentence and the Merits of his Offence exacting by Law either Deprivatio◠from his Living or Deposition fro◠the Ministry no such Sentence shall be pronounced by any Person whosoeve◠but only by the Bishop with the Assistance of his Chancellor the Dean 〈◊〉 they may conveniently be had and some of the Prebendaries if the Court be kept near the Cathedral Church or of the Archdeacon if he may be had conveniently and two other at the least Grave Ministers and Preachers to be called by the Bishop when the Court is kept in other places Can. 122. The Conclusion And now Reverend Sirs having not without great pains and study which Solomon saith is a weariness to the flesh arrived at the Period of my intended purpose before I conclude give me leave to acquaint you that my Lord Cook in his Epilogue to his fourth part of his Institutes saith that he that takes upon him to Write doth Captivate all the Powers and Faculties both of his Mind and Body and must be only Intentive to that which he Collecteth without any Expression of Joy or Cheerfulness whilst he is in his Work the truth whereof I have sufficiently experienced whilst I was Composing this Treatise So after this if my pains do not Merit your thanks yet I hope you will be so Candid as gently to censure lovingly to Correct or easiy to Pardon such errors and mistakes as have either escaped the Press or my Pen knowing that humanum est errare and so I take leave and shall wind up all in this short Sentence Vide quod non mihi soli Laboravi sed omnibus exquirentibus scientiam Deo gloria gratia FINIS