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FOrasmuch as wee are said to know, cum Causas cognosci∣mus, and seeing hee labou∣reth in vaine, that seeketh to apprehend the knowledge of the accident, which is ig∣norant of the substance: and seeing nothing setteth out the nature of the thing, but the Description and Definition, and
that Omnis quae à ratione suscipitur, de re aliqua,* 1.1 institutio, debet à definitione proficisci, vt intelli∣gatur quid sit id de quo disputatur: I will begin as good order requireth, with the Description of an Advowson, that the nature thereof being knowne, wee may the better obserue, the cohe∣rence and congruence of this kind of Lear∣ning.
An Advowson therefore generally conside∣red,* 1.2 is a right that a man hath, to preferre his friend, or any fit person, to promotion Presenta∣tiue, or Donatiue.
This Definition is generall, and may be attri∣buted to all persons, whereof a man may haue a Quare Imp: if hee be Disturbed; for, the Writs mentioned in the Statute, lyeth not onely of Dignities Presentatiue by the course of the Common Law, but also of promotions Dona∣tiue by this Statute: As Chaunteries Dona∣tiue, * Free chappels, &c. Also it lyeth, of a* 1.3 Subdeaconship, or Hermitage, which also may bee Donatiue, and this is grounded vpon the words of the Statute, De cetero concedantur bre∣via de Cappillis, Prebendis, Vicarijs, Hospitali∣bus,* 1.4 Abbatis quae prius concedi non consueuerunt; Yet neuerthelesse, I read that a Quare Imp: was maintained of a Chappell, by the Common Law, but such a Chappell (perchance) was Presentatiue, and not Donatiue. Promo∣tions presentatiue (whereof the Writs are men∣tioned
in the Statute) were maintained at the Common Law; as Churches, Chaunteries, and Chappels Presentatiue, and such like.
And therefore as the afore-specified Definiti∣on, or Description is generall, and appliable to both: So are those subsequent, more properly to be applied to Churches Advowsons, in which are Cures of Soules.
An Advowson, or as the terme, Ius Patronatus* 1.5 est potestas presentandi aliquem instituendū ad be∣neficium Ecclesiae simplex & vacans: and of other respects, the causes and incidents of Advowsons, is Described more amply in such manner, Ius patronatus, est ius honorificum, onerosum, & vtile.
In effect this: A Patronage, or an Advowson, is a right to present to the Bishops or Ordinarie a fit person, by him to bee admitted and Institu∣ted into a Spirituall Benefice when it becom∣meth voyd: And hee that hath such right to present, is called Patron: who is thus descri∣bed, Patronus est defensor Ecclesiae, qui habet ius presentandi Episcopo aliquem vel aliquos in a∣liqua Ecclesia & in ea ab eo instituatur. And hee is so called, De patrocinio, of defence: For that, that hee should defend the Church, or à simili∣tudine Patris, quia sicut pater filium, sic patronus Ecclesiam, de non esse, deducit ad esse.
Hee is called of Old Glanvile, Advocatus; as that he should say, an Advocate of the causes of
the Church, and therefore the inheritance is cal∣led Advocatio, or Advowson, or is deuised De vocando: for that, that the Patron hath power, for the presentment of a fit person, by the name of his presentation. And heere by the way, let no man thinke, that I thrust my selfe in messem alienam, and to borrow of the Cannonists, as well now the Description and Etimologie be∣fore shewed, and after also, to fetch from them more high matter. But let such curious Car∣pers, (if any bee) remember the Speech of Asli∣ton, * who affirmeth, that euery Advowson, and* 1.6 right of Patronage, dependeth vpon two Lawes, that is to say; The Law of holy Church, and our Lawes, so that the true determination of such learning, is as hee saith; Per ius mixtum, by both Lawes; that is, Ecclesiasticall, and Temporall: And therefore, when wee purpose to seeke the right intelligence, or true vnderstanding of any things in this kind of learning, wee must of ne∣cessitie bee beholden to them.
But to returne where wee digressed.
The materiall causes and subiects, in which this learning dependeth, are the things before mentioned. As Churches, Chaunteries, and Chappels presentatiue, and such like.
A Cathedrall Church, is the seate or Church of a Bishop, and therefore he onely may be said Incumbent thereof.
Collegiall or Conuentuall Churches, are such, as in times past, haue beene in Prio∣ries; Abbies, or such like, and are still in Col∣ledges.
Patrochial Churches, are well knowne, and* 1.7 are those, Ad quem plebs convenit ad percipi∣enda Sacramenta Baptismatis & Corporis Chri∣sti vnde pabulum ad animas sustentandas libere suscipiunt, for the Incumbent thereof, is one∣ly charged with the cure of Soules. And it is commonly called by the name of Rectorie, which is into two sorts diuided, being eyther a Parsonage, or a Vicarage. And so much* 1.8 briefly, for the name, matter, and substance of Advowsons.
The former cause or manner of this Inhe∣ritance, yeeldeth forth the vsuall and ordina∣rie distinctions of Advowsons, to bee eyther appendant, or in grosse, or part appendant, part in grosse, eyther for a certaine time, or in respect of certaine persons.
[unspec 1] Ratione Dotationis, is, when hee, or those from whom he deriues his interest, endowed the same Church.
[unspec 2] Ratione Fundationis, is, when he or his An∣cestors, or those from whom he claimes his interest, were founders of the same Church.
[unspec 3] Ratione Fundi, is, when the Church was built vpon his or their Land, from whom he deriues his interest; or all three together, as appeareth by the verse, vsed amongst the Can∣nonists.
Patronum faciunt dos, edificatio, fundus. The vsuall cause or causes, why Patronages* 1.9 of Churches are giuen by the Law, and be∣stowed vpon Lay-men; is, and were, Vt indu∣cantur laici ad fundationem, constructionem, & Desetionem Ecclesia.
[unspec 1] The Honour attributed to a Patron, con∣sisteth* 1.10 in his right of presentment. In the dis∣course whereof, I shall afterward consider, what is required, before the same can bee at∣tempted: then what the nature of presenta∣tion is; and lastly, what is required for the making of a full and perfect Incumbent.
Before the presentation can bee lawfully made, it is meet that the Church become void, and of avoidance, our Law taketh no∣tice, the same being triable thereby.
The manner and meanes how an Avoydance groweth, is eyther Temporall, or Spirituall.
[unspec 1] 1 Temporall, by the Death of the Incum∣bent.
[unspec 2] 2 Spirituall, and this is in diuers manners; that is to say, by Resignation, Depriuation, Cre∣ation, session, and entrie into Religion.
As touching presentation, we are to see; first, what it is, then who shall present, afterwards what person may be presented, and last of all in what manner the same must be done.
Those things, that are required to make a per∣fect Incumbent, after the presentation had, de∣pendeth vpon the Dutie of the Ordinarie; As first, Admission, which requireth examination of the Clarke, whereupon sometime ensueth a refusall, and thereupon, either notice, or no no∣tice (as the case requireth) is to be giuen to the patron.
If the Clarke be admitted, then, he must bee instituted, wee are then to see, what Institution is, and what is the effect thereof, vpon which ought to ensue Induction thereinto, likewise we must see, what it is, by whom it is to bee perfor∣med, and what it doth import.
If the Patron be remisse, and doth not present within the time limitted, then incurreth the lapps of the Patron, to the Bishop, and from the Bishop, to the Metropolitan, and from him to the Crowne, where it resteth, but if the
Bishop take his time, then is his presentation a Collation, and in the right of the patron him∣selfe.
2 The second effect of a personage, (which is* 1.11 Onus,) resteth onely in the defence of the Chur∣ches possessions, to which the Patron and Ordi∣narie by aide prayer, are to bee called by the In∣cumbent, for the defence of the same, to auoid such charges and incumbrances, as are vnduly laid thereupon.
3 As touching the third, which is Vtilitie, we* 1.12 haue not any thing to doe with it, in our law, but we must leaue the Consideration thereof, to the Cannon law, for this Vtilitie is imployed for the sustentation of the patron; for if hee or his posteritie being patrons doe fall to decay, then the incumbent of the fruites of the Church by compulsarie Censure, of the Ordinarie, accor∣ding to that law, is to be enforced to make Con∣tribution to them.
All writs concerning this kind of Inheritance* 1.13 are either giuen to the patron, or Incumbent.
Writs giuen to the Patron are of two sorts, for either he demandeth his inheritance, or pre∣sentation, against the possessor, of the patro∣nage, or hee attempts suit against the Ordinarie, for either not doing, or doing his Duty vnduly.
In euery action brought against him that pretendeth possession, it is to be intended, that eyther he is lawfully or vnlawfully possessed.
The vnlawfull possessor, is the vsurper, against whom onely lyeth three Writs, which the Sta∣tute speaketh of, namely; One of the right, as the writ of right of Advowson, and the other two of the possession, as a Quare Imp: and Dar∣raigne presentment.
Against the lawfull possessor, lyeth the writ* 1.14 of Dower, for the wife of him that Dyed seized of such estate as she might ••e endowed of, and a Cessavit of the land against the Tenant.
But no Formedon lyeth for the issue in taile* 1.15 in Discender, nor for any in the remainder, nor for the Donor in the re••••rter; for that, that if the Advowson be in grosse it cannot properly be discontinued, and being appendant it is to bee recontinued by the same meanes, that the land to which it is appendant, is to be recovered.
The Incumbent as touching his right for his Rectorie, hath the onely Writ of Iuris vtrun••, and for his possession, any other possessarie acti∣on. For if another happen (during his presen∣tation) to be presented by the same Patron, or doe come into the same Church, by course of the Law, so that the patronage commeth into Debate, their lyeth a spoliation, it being a suite in the Spirituall Court,
IN the former Lecture or Reading, hauing deliuered in the proiect, a Discourse of Advowsons, briefly discouering their Name, nature, Divisions, consequents, causes, effects and In∣cidents of the Patronage: Now it remaineth in like manner to prosecute euery of those parts, then but pointed at, with a more large and am∣ple explication.
First therefore, it is to be considered, that in euery Benefice three persons haue intrest. That is to say, the Parson hath a Spirituall possession.* 1.16 The Ordinarie to see the Cure serued; And the Patron hath Ius presentandi.
Hence it is that I haue said, that a Patronage is a right of presentation; therefore it is called, Ius Patronatus; not a power, nor an authoritie onely, but a right, intrest, or an Inheritance: The word Ius or Right, is diuersly intended,* 1.17 sometimes strictly, to signifie what is left a man, when that, that was once his owne is wrongful∣ly* 1.18 taken from him, as by Disseisin or such like.
In which sence, the word Droit and Tort, are* 1.19 priuatè opposita, and is thus deuided; to be ei∣ther
right of Action, or right of Entrie; some∣times, in a more ample signification, as Ius ha∣bendi, ius possessendi, ius disponendi, by which occasion I purpose at this time to discusse, whe∣ther the Patron and Ordinarie haue right in the Rectorie or Benefice, and what manner of right it is that they haue; their right is called Collate∣rall, as wee read, and not Habendi, nor possessen∣di, nor retinendi; for none of them, can haue, retaine, or possesse the Church or Rectorie, but their right is, Ius Disponendi, wherein euery of them hath a particuler Charge to the possessions of the Church, so free as that hee may maintaine such a one as is thereinto to be presented.
That they haue a kind of Disposition in them, it* 1.20 is proued by many reasons: 1. No charge can be founded to be laid vpon the Church in perpetui∣ty, to bind their successors, but the Patron and Ordinarie must be made parties thereunto as all our bookes agree, and Litleton giues a notable reason for it. VVch is, that if the Charge be per∣petual, the consent of all 3. ought to concurre, of which ensueth thus much, that if a writ of Anui∣tie be brought against the parson, and he prayeth in aide of the Patron and Ordinarie and the Pa∣tron maketh default, and the Ordinarie appea∣reth, and confesseth the action; or if the Ordi∣narie* 1.21 make default, and the Patron appeare, and confesseth the action, that this Anuitie shall not
bind the successor: but if they both appeare and one of them confesse the action, and the other faith not any thing, it shall bind the Rectorie in perpetuitie. For Qui tacet consentire videtur. But if the Parson onely with the consent of the Ordinarie for Tythes or other consideration ex∣ecutorie, charge the Church in perpetuitie, it shall bee good, without the consent of the Pa∣tron, as well as if the consideration executorie had remained.
[unspec 2] Secondly it followeth, that the charge of the Parson, Patron and Ordinarie, shall bind in like manner as their intrest is. But if a man haue an Advowson for yeares, and the Parson by the consent of such Patron and Ordinarie, grant rent charge in fee, if the Parson dye within the terme, & the termor of the Advowson presents another, & the terme expireth, Quere if then the Anuity shal be deliuered, but it seemeth by some that it shall be deliuered; for that, that this In∣cumbent was not the party, that made the grant, and therefore he should not hold it charged any longer, then during the intrest of the Patron.
And therefore if two joyntenants in com∣mon, or parceners be of an Advowson, who agre∣eth to present by turne, if the person ioyne in grant of a rent charge in fee, with one of them, the Parson shall bee charged and also his suc∣cessors (alterius vicibus) for euer; because, those successors (that commeth in) by him that made
the Charge, shall bee subiect to it onely, and those that commeth in by the presentation of the Patron, that neither ioyned nor confirmed, the same shall hold their land discharged for euer.
Also, such Anuitie with which the Rectorie is charged, doth not properly charge the Land but the Parson; for, if the grantee enter into a∣ny part of the Gleebe, hee shall not suspend the rent or anuitie.
And if the Parson, Patron, and Ordinarie, ioyne in a graunt of an Anuitie to S. H. and his heires, except they speake of the successors of the parson, and that the same be granted for the parson and his successors, this cannot be good longer then forthe time, that the parson that granted the same, continueth Parson; for an Anuitie is nothing but a parsonall Dutie, and no otherwise. And if such an Anuitie bee* 1.22 granted ouer, it is not needfull to haue Atturn∣ment; all which proueth, that the same char∣geth not the Land, but the Parson; yet neuer∣thelesse, the parson is charge, for if the Grantor assigne or be remoued by any meanes whatsoe∣uer, the charge followeth not his parson, but resteth vpon his Successors, and the Iurie may bee taken of the Towne where the Church is, which proueth that such graunt chargeth the parson in respect of the Land.
Moreouer, when the Patron and Ordinarie, confirmeth the graunt of the Parson, it is requi∣site
that the Confirmation be made, during such time, as he is Incumbent that made the Charge; for if hee Die, be remoued, resigue, or other∣wise be deptiued before the confirmation, such Confirmation is voyd notwithstanding.
If an Incumbent grant rent charge, to begin after his Death out of his Rectorie, and the Pa∣tron and Ordinarie confirmeth the same, this is good for so long time as it is graunted.
The second principall Reason, to proue the* 1.23 intrest they haue to the Church or Rectorie, is,* 1.24 that all three may charge the Church in perpe∣tuitie, so may the Patron and Ordinarie doe onely in time of vacation, which charge shall bind the Successor for euer. Because none hath intermedling with the Rectorie, but the Graun∣tors aforesaid.
The third principall reason; is this, that as the* 1.25 Patron and Ordinarie in time of vacation, may* 1.26 charge the Church in perpotuitie, so they may make a release, by which any Anuitie that char∣geth the Church or Rectorie shall be extingui∣shed, euen in the time of vacation.
Also, if a man hath an Anuitie out of the* 1.27 Church of S. and afterward this Church is vni∣ted to the Church of D. and after the vnited Church becomes void, if the Grantee release in* 1.28 time of vacation to the Patron, that was patron of the other Church; that is to say, of D. and to the Ordinarie, such release shall not discharge
the Incumbent, because, it was not made to the Patron of the Church that was first Charged, for although both the Churches are vnited and become one, yet are their patronages distinct and seuerall; moreouer, that Intrest, that the Patron and Ordinary hath in the Rectory, is but Collaterall and ius disponendi, and no otherwise, as hath beene formerly said.
For if an Advowson discend to an Infant, and the Incumbent bee impleaded in a writ of Anui∣tie, and prayeth ayde of the Patron and Ordi∣nary, and for that, that the patron is within age, likewise prayeth that the Parol may demurre vn∣discussed during his nonage, this shall not bee granted; but the In••ant in such case shall bee ousted of his age, because the charge lyeth vpon the parson, and not vpon the patron, or Ordi∣nary, who are not at any time to inioy the* 1.29 Rectory themselues, but onely are to haue the disposition thereof.
Finally, to proue that it is meerely Collate∣rall: If the patron & Ordinary doe nothing but giue licence to the person to charge his Rectory with an Anuitie, this shall bee a good grant to Charge the Church in perpetuitie. For that, that it is not to any other free tenants a Charge, but to the parson; because neither the patron, nor* 1.30 the Ordinarie can haue the Church themselues, but onely to dispose and bestow the same, vpon some other; neuertheles, such assent ought to be by writing.
IN the Lecture next before, I haue ••et forth to you the right that both the Patron and Ordinarie hath joyntly to intermeddle in the Church; Now it remains, likewise that I declare their seuerall Interests: Therefore at this present, I intend to deliuer somthing touching the Col∣lateral Intrest of the Patron sole, and after to ex∣amine, what manner of Inheritance an Advow∣son is, and so to refetre the Intrest of the Ordi∣nary sole to a more conuenient place when as we shall come to speake of Admission and In∣stitution.
What Collaterall Intrest alone, the Patron hath in the Church, may in brie••e thus be decy∣phered; first, by the Common Law, (before the Statute of Westminster second,) as hee ought▪ by the opinion of some men, to bring his writ of Advowson, of the fift part or any lesse part of the Tyth••s and oblations of the Church in any suite of Iudicauit, attempted against the Presentee, or* 1.31 Incumbent, that hath sued in the Spirituall Court for the Recouerie of the same, and hath caused the Patronage in this respect, to come into
question, or as some men thinke he might haue had his Writ of Heres, as a Precipe quod reddat* 1.32 advocationem quinque acrarum terrae, or one a∣cre of Land and such like; For which cause the Statute was made, to be a restraint for bringing the same writ, of any lesse part then of the fourth part of their Tithes; so that the Statute in this behalfe, was but a restraint of the Common Law: Which argueth, that the comparing of the Rectorie, tendeth Collaterally to be an im∣peachment and preiudice to the Patron him∣selfe, and so importeth a Collaterall Intrest that the Patron hath to the Church. Againe, by the graunt of the Church the Advowson passeth; wherefore Herle sayd in the first part of Ed. 3. That it was not long since, when men knew not* 1.33 what an Advowson was nor meant, but by the Graunt of the Church, they thought the Ad∣vowson to be sufficiently conueyed in the Law; For, said hee, when they purposed to assure an Advowson, their Charter specified it in the gui•••• of the Church.
Moreouer, the King being Patron, hath often ratified and confirmed the estate of the Incum∣bent* 1.34 in a Rectorie, that an vsurper had presen∣ted;* 1.35 by meanes whereof, hee cannot remoue the same Incumbent, vnlesse for some cause hee re∣peale his Charter of confirmation.
Notwithstanding, if the King recouer by a Quare Imp: and after confirmeth the estate of
the Incumbent, that the vsurper presented, by* 1.36 meanes whereof, hee cannot be remoued; at the next Avoidance the King shall present, for the Judgement giuen for him was not at any time executed, which also proueth the Collaterall Intrest, that the Patron hath to the Church; for no parsons can lawfully confirme, but such as haue right to the thing confirmed.
Ancient Bookes haue held, and that not with∣out* 1.37 reason; That an Advowson hath such an affinitie with the Church it selfe, to which it is granted, and to which it is a Collaterall Intrest (as hath beene sayd) that it should passe by Li∣uerie of seism, made at the Ring of the Doore of the Church; and although by such meanes it passe not at this day, being meerely a thing that lyeth in Graunt; yet the same proueth the Col∣laterall Intrest of the Patron to the Church; for this opinion holden in the Bookes, is gran∣ted for the like reasons.
In a Writ of right of Advowson, the Parson* 1.38 shall bee summoned in the Church, or at the doore of the Church; And if a villeine purchase an Advowson in grosse, (Littleton saith) full of an Incumbent, the Lord of the same villein may come to the same Church and their claime, and the Advowson shall be in him; All which things added to the former, sufficiently proueth the Collaterall Intrest that the Patron hath to the Church.
[lecture 4] WEE are now to consider, what manner of Inheritance an Ad∣vowson is; wherfore, let vs con∣sider, that euery Inheritance, is eyther:
Hereditas corporata, is a Meadow, Messuage,* 1.39 Land, pasture, Rents, &c. that hath substance in themselues, and may continue for euer.
Hereditas incorporata is, Advowsons, Vil∣leins, Wayes, Commons, Courts, Piscaries, &c. which are and may be appendant or appurtenant to Inheritances Corporate.
An Advowson therefore is Incorporate, of which a man may be Seisied, though not of De∣mesne, yet as of Fee, and as of right.
And although great Disputation haue beene* 1.40 in our bookes, whether an Advowson may bee holden or lye in tenure, yet the most authorities concurreth and are, that any Advowson either in
grosse or appendant, lyeth in tenure, aswell of a Common person, as of the King. For a Cessa∣uit lyeth thereof, and some haue holden that the Lord of whom it was holden may distreine (either in the Church yard, or in the Gleebe) the beasts of the Patron onely. if they happen to* 1.41 be there found, 33. H. 6. Godred contrarie: but though the law be, that there cannot bee taken any distresse, yet the same makes not any im∣peachment of the tenure, and being parcell of a Mannor or appendant to it; it may bee holden as some bookes are, pro particula illa.
Therefore it is holden and said, that an Ad∣vowson is a tenement, and therefore whereas the King hath giuen licence to an Abbot to amor∣tise lands and tenements to such a value, by force whereof he purchaseth an Advowson, and this was holden good, sufficiently pursuing this licence, and therefore in the booke an issue was taken, if the same Advowson were holden in* 1.42 Capitie; and therfore, if a man grant a Ward, or Omniaterra & tenementa, that he hath by reason of his Ward, if there be an Advowson holden of the Lord, being guardian the same passeth to the grantee, by the words of Omniaterras & tenementa.
Of an Advowson a precipe quod reddat. lyeth very well, and a writ of Dower shall bee main∣tained* 1.43 of the same, by the wiues of such as haue such inheritance therein as giueth a dower, as
before hath beene said, and so the husband of* 1.44 her that hath the'nheritance in it shall be tenant by the Courtesie, although there neuer were had any presentation by the wise to it.
But yet there shall not be any discent thereof, from the Brother to the Sister, of the entyre blood, by the maxime of possessio fratris, &c. But the same shall discend to the brother of the halfe blood; vnlesse, the first haue presented to it in his life time, but if hee haue presented in his life∣time,* 1.45 then it shall discend to the next heire of the entire blood.
In Advowson is an inheritance and cannot be deuided into parts or parcels, for in a writ of right of Advouson; if the tenant say, that the de∣maundant is seased of the sixt part of the Ad∣vowson, this shall abate the whole writ, and yet part thereof may be in some sort considered, for there is an vsuall difference taken, betweene Ad∣vocatio medietatis Ecclesiae, and medietas Advo∣tionis Ecclesiae.
For Advocatio medietatis Ecclesiae, is where two Patrons be, and euery of them hauing right to present a seuerall Incumbent to the Bishop, to be Admitted into one and the same Church, for diuers may be seuerall parsons, and haue care of Soules in one Parish, and such Advowson is* 1.46 a like in euery of those Patrons, but euery of their presentments is to the moitie of the same Church; and therefore it is called Advocatio
medietatis Ecclesiae, or as the cause salleth out, aduocatio tertiae partis Ecclesiae, and the like.
But Medietas aduocationis Ecclesiae, is after per∣tition* 1.47 betweene perceners, for although the Ad∣vowson bee entire, amongst them, yet any of them being disturbed to present at his turne shal haue the writ of Medietate, or of Tertia, or of Quarta parte Advocationis Ecclesiae, as the case lyeth.
Also, if two Patrons of seuerall Churches make* 1.48 vnion; or confederation, of their Churches by the assent of all those whose consent is requisite, the patronage of euery of them shall not be but medietas Advocationis Ecclesiae; because, but one Incumbent is onely in this case to be pre∣sented, and not Advocatio medietatis Ecclesiae.
And this Difference is onely taken and ob∣serued in the writ of Right, which is altoge∣ther grounded vpon the right of Patronage. But in the Quare Impedit, which is onely to re∣couer Damages, no such diuersitie is conside∣red, but the writ is generall, Presentare ad Ec∣clesiam.
Lastly, it is to be considered, what temporall profits, value or Commoditie, this kind of In∣heritance is reputed to be of: It is not by the Law of God, to be bestowed vpon any Incum∣bent* 1.49 for any need or price; but onely reserued for such as are worthy thereof. And therefore it is said; * That Guardian in Socage of an In∣fant,
shall not present to any Aduowson; because* 1.50 such presentation, is not to bee bestowed for price; for that, that such Guardian cannot ac∣count for the same, yet neuerthelesse, because the Patron thereby may aduance his friend, it hath beene often esteemed for Assets in Formedon.
And as the value thereof may come in questi∣on,* 1.51 as in a writ of right of Advowson, where the tenant avouche••h, and the vouchee looseth, the tenant shall recouer in value against the vou∣chee, for euery Marke that the Church is worth per Annum, xij. d. So that the thing which of it selfe is not valuable, is by a secondarie meanes made and esteemed valuable; because that o∣therwise, this mischiefe should ensue thereof, which should be a losse without recompence.
IT resteth at this present, for the more ample explication of this word Right, (whereas in defining an Advowson, wee say it ••••keth a R••g••••) to set forth the d••••••sions of Advowsons, and to prosecute euery part deuided with a ••ull Discourse; that thereby, what manner of right and inheritance an Advowson is, may be the bet∣ter perceiued.
Advowsons therefore, are either appendant or in grosse, or part appendant part in grosse.
An Advowson appendant, is a right of Patro∣nage, appertaining to some corporall Inheri∣tance; so that, hee that hath the same Inheri∣tance, is thereby also entituled to haue the other as annexed to the same; For an Advowson* 1.52 passeth alwaies with the Inheritance, to which it is appendant; vnlesse, there bee expresse no∣mination* 1.53 onely by these words (Vna cum perti∣nentijs,) except it bee in case of the King, where the Statute De prerogatiua Regis, cap. 15. pro∣uideth expresse words to make the same to passe.
The originall of Advowsons appendant at the
beginning must be in this manner, sythenc•• Pa∣tronages were wonne and gotten as before hath beene declared; and that either ratione fundati∣••nis* 1.54 dotationis or fundi, were (as it seemeth by all conformity of reason) the originall foundati∣ons of Advowsons appendant; for when Man∣nors were created, either the land vpon which the Church was built was land parcell of the Mannor, or honor to which it is appendant, and he that was Donor thereof, gaue the same to build the Church vpon, and that the Advowson of the same Church so built, should bee appen∣dant to the same Mannor, which is ratione* 1.55 fundi.
Or hee that was owner of the same Mannor or of any such corporall Inheritance, endowed the same Church with parcell of the land of the same Mannor, honor, or such like corporall In∣heritance, and gaue the same to the Gleebe, of such Chuch vpon which the Advowson by or∣dinance of the Ordinary, and by the consent and agreement of all others, whose consents were re∣quisite in this behalfe, was at the beginning ap∣pointed to be appendant to such Mannor, Ho∣nor, or other corporall Inheritance, in recom∣pence of such liuely hood, and dotation besto∣wed vpon the Church.
And hereof it ensueth, that if at any time the* 1.56 Church bee desolued, the Gleebe and land vpon which the Church was built, shall returne and
escheate to him or them from whom it was de∣riued and deduced.
As in like case, vpon the dissolution of an Ab∣bey,* 1.57 the same shall not returne to the sounder of common right, vnlesse some other ordinance be made to encounter the same.
[unspec 1] As to the first, it may be appendant properly* 1.58 and originally, to things that are onely Inheri∣tances corporall, that are compound; As to an Honour, Earledome, or such like; likewise, to a* 1.59 Castle, more vsually to a Mannor; all which principall things, that is to say, the Earledome, Honour, Castle and Mannor, &c. are Inheri∣tances compound, made and combined of di∣uers things, and in nature different, being those which the Logicians call Tota Intigratia.
[unspec 2] It may bee appendant to an Acre of Land, or to a Messuage, to a Rectorie, Parsonage, Church or such like; And so one Church may
be appendant to another, of which we shall take occasion to speake in the Lectures following.
But at this present, let vs see in what sort it may be appendant to a Mannor.
Advowson that lyeth in one Countie, may be* 1.60 appendant to a Mannor that lyeth in another Count••e; And how two or more Advowsons* 1.61 may be appendant to one Mannor, may be ma∣nifested thus.
If hee that in Ancient time was seisied of a Mannor, that extended so large as it was diui∣ded into diuers Parishes, the Lord of the same Mannor, eyther gaue out of the same Mannor land to build, or to endow euery of the Chur∣ches, and so euery of them might be appendant to the same Mannor.
How one Advowson may bee appendant to two Mannors, may likewise thus appeare.
Suppose that A. be Seisied of an Advowson of the Church of Dale, as appendant to the Mannor of Sale, and that both those Churches by the Ordinarie, and by the consent of both* 1.62 the Patrons bee vnited, and called the Church of Dale, and ordained that the Patrons shall present by turne for euer; these Churches by this vnion and confederation are made one, and so the Advowson entire, and no moities as is be∣tweene Coperceners, joyntenants, and tenants in common; and therefore it is appendant to both Mannors, for the Patrons seuerally presen∣ting▪
shall present to the same Church as appen∣dant to both Mannors, (that is to say) the one shall present seuerally to the Church as to his Mannor of Dale, and the other also shall pre∣sent thereto when his turne commeth, as appen∣dant to the Mannor of Sale.
Yet some are of opinion, and some authori∣ties there are, that each of the same Patrons after* 1.63 the same vnion, is seisied De medietate Advoca∣tionis Ecclesiae.
And in what manner soeuer the same Advowson be entire, yet is the Parsons intrest seuerall; For if such Incumbent, which is presented after such vnion made, graunt a rent charge out of the Gleebe, and one of the Patrons onely confirme, no Distresse (after the Death of the Incumbent that granted the rent) can bee taken vpon the Gleebe, that belongeth to the Gleebe of the o∣ther Patron, to make the same subiect to the charge in perpetuitie; for that, that hee confir∣med not.
But if the Mannor of Dale, bee holden of the* 1.64 Mannor of Sale, and to the Mannor of Dale is an Advowson appendant, and that the Mannor of Dale hath Escheated to the Mannor of Sale, so that the Demeanes of the one is become par∣cell of the Demeanes of the other; yet the Ad∣vowson shall be still said appendant to the Man∣nor of Dale, as it was at the first; And the Man∣nor of Dale shall continue still in reputation ••
Mannor, in respect of such things as are appen∣dant therevnto.
The moitie of an Advowson may bee appen∣dant* 1.65 to a Mannor, or parcell of a Mannor.
Also, in the pleading of a case in Ed. 6. by* 1.66 Dyer, it appeareth that one fourth part of an Advowson was alledged to be appendant to the one moitie of a Mannor, and another fourth part of the same Advowson was appendant to the other moitie of the same Mannor, and the other two parts were in grosse: yet neuerthelesse an Advowson (in euery such or the like cases) can∣not be said to be diuided properly, for that, that it is entyre, if you respect the presentation and not the right of Patronage. For if a man hath an Advowson and giueth one part thereof to A. and the other part to B. & one third part to C. yet the Advowson remaineth entyre amongst them, and if any of them disturbe his companions they are without remedy, for that they ought to ioyne in a Quare Impedit, because the presen∣tation is a parsonall thing, and entyre, wherein they ought to agree, but seeke how they can se∣uer in these causes in a writ of Advowson.
Moreouer, as touching the right of Patro∣nage, if one bring a writ of right of Advowson, and the tenant pleadeth that the demandant is seisied of one sixt part, or of some one part of the Advowson, the entyre writ shall abate, not∣withstanding if it be in barre but for parcell, be∣cause
cause the Advowson is entyre, and not seuerall, by reason wherof the demandant cannot abridge his demand.
And as in the ••ases aforesaid it hath appeared,* 1.67 that •••• Advowson of a Church may bee ap∣〈…〉〈…〉 ••o a M••nnor, in like manner may the 〈…〉〈…〉wson of a Priorie bee appendant to a 〈…〉〈…〉▪
IN the Lectures aforesaid, was shewed, to what sort of Inheritan∣ces an Advowson may bee appen∣dant originally; Now it remai∣neth ••o show to what things it may bee appen∣dant secondarily.
An Advowson therefore cannot bee appen∣dant* 1.68 to one Acre of land, or two acres, but only to such parcels of land as haue beene parcell of a Mannor, or parcell of any Earldome, Castle, or such like Inheritance, to which an Advowson may bee appendant originally; But in what or∣der the same may bee appendant to one Acre,* 1.69 let vs consider; some bee of opinion, that if a man be seisied of a Mannor to which an Ad∣vowson is appendant, giueth certaine acres of
the same Mannor, vna cum Advocatione to ano∣ther, in such case the Advowson shall not passe, to the grantee, vnlesse the same be by Deed, and so the same shallbe appendant to the same Acres.
So likewise, some hold opinion, that if a man* 1.70 be seisied of a Mannor, to which an Advowson is appendant in right of his wife or Ioyntly with his wife, and maketh a seofement in fee of cer∣taine acres parcell of the demeanes of the same Mannor vna cum Advocatione, and dieth; that the wife notwithstanding this, may present to the Advowson, before she recontinue the same acres, by Cui in vita; because (as they thinke) the same Advowson is not appendant to the same Acres, and such alienation is not but du∣ring the life of the Husband.
Neuerthelesse, I doe not perceiue any great* 1.71 reason, why the Law should be so in such a case; for if a tenant in tayle of a Mannor, to which an Advowson is appendant aliene some of the same Acres parcell of the Mannor, together with the Advowson, although it bee without Deed, not∣withstanding it is appendant to the Acres, and cannot be recontinued but by Formedon to be* 1.72 brought for the same Acres, which case in rea∣son, being like to the Formedon of the Acres and Advowson aliened by the husband, I know not any difference of Law that should bee be∣tweene them; And therefore, if a man bee seisied of a Mannor to which an Advowson is appen∣dant
and make a lease for life of the same Man∣nor, vna cum advocatione, if the lessor enter into* 1.73 the same Acre of land for forfeiture, hee hath recontinued the Advowson, as appendant to the same Acre.
An Advowson cannot Originally bee appen∣dant* 1.74 to a Messuage, but Secondarily it may; therefore if an Advowson be appendant to a par∣cell of land, which was sometimes part of the demesnes of a Mannor and suchlike, if a Messu∣age be built vpon the same parcell of land, the Advowson shall be appendant to the same Mes∣suage, and if the same Messuage fall or bee pulled downe, the same Advowson shall bee againe appendant to the Soyle, as it was before.
So likewise, an Advowson may by a secondary* 1.75 meanes be appendant to a Rectory, for Vica∣ridges being not first erected (in as much as the Substitute cannot bee before the principall) but* 1.76 all at the beginning were Parsonages, of the which Vicaridges were deriued, and that for the most part, by the reason of many Impropriati∣ons of benefices, to the houses of Religion, and Spiritual corporations, which were not of them∣selues in all points fit for the function and cure of soules.
The reason is, because that the Advowson of a Vicaridge should bee alwayes appendant to the Rectory of a Parsonage, so that he that
is Parson, or Persona impersona, (as they call him) of this Church, is of common right Patron of the Vicaridge, of the same Church; except, some other seuerall ordinance at the beginning of the endowment of the same Vicaridge were made to the contrary.
And therefore, by the graunt of a Parsonage* 1.77 with all the hereditaments thereto belonging, the Advowson of a Vicaridge passeth to the Grantee.
In the same manner it should be, if the Vi∣caridge were endowed, so there be a Pa••son* 1.78 and a Vicar both presented into one Church, as by the Law there may well be; but if the Vica∣ridge become voyd, and hee that is Parson ha∣uing the Advowson of the Vicaridge (as of com∣mon right hee ought) present one to the same Vicaridge by the name of Parson, who is admitted and Instituted▪ accordingly,* 1.79 by such presentation hath the same Vicaridge lost the aforesaid name, and is becommed a Par∣sonage, tamen querae if the first Parsonage re∣maine, and if one of those parsonages (if they both continue) be appendant to the other; but* 1.80 it seemeth by the Booke of 11. H. 6. that there should be but one Parsonage, and the Vica∣ridge extinct.
An Advowson of a Church or Chappell,* 1.81 cannot originally bee appendant to another Church or Chappell; for that, that things of
one nature cannot be originally appendant each to other. But notwithstanding, secondarily the Advowson of a Church or Chappell may be ap∣pendant to another Church or Chappell.
As if the Advowson of a Church or Chappell* 1.82 bee appendant to one Acre of land, that was sometimes parcell of a Mannor, or such like; and after a Church or Chappell bee built vpon it, the last new erected Church shall bee appen∣dant to the aforesaid Church.
An Advowson may be amortified to a Church* 1.83 or Chappell, and if it be recouered and lost by Default, the parson thereof may haue a Writ of right.
And an Advowson may be parcell and part of* 1.84 a Dean••rie, and if the same bee in any free-Chappell of the King, if the Deane be implea∣ded, he may of this haue ayde of the King. And thus much concerning Inheritances, to which an Advowson may be appendant.
[unspec 1] NOw it resteth, that I determine in what manner Advowsons are ap∣pendant. And first of all, if the Ad∣vowson be part or parcell of the In∣heritance, to which it is appendant, and whe∣ther it bee onely accident or incident there∣unto.
[unspec 2] Secondly, if an Advowson be appendant to a Mannor, that consisteth of Demeanes and serui∣ces, in respect both of the demeanes and serui∣ces, or if it shall be said appendant to a Mannor in respect onely of the Demesnes, in as much as the Demesnes are one corporall Inheri∣tance, and such part of the Mannor as onely ly∣eth in manuell occupation.
1 As concerning the first, the Authorities of our Bookes are diueisly deuided, some tending to one effect and some to another, our best course therefore is to consider the Arguments, and to giue censure with that which seemeth most agreeable with Law. Some hold that an Advowson appendant to a Mannor and the like, is eyther part or parcell of a Mannor, Honour, &c. or other Inheritance to which it is appen∣dant.
And they ground themselues vpon the au∣thorities of 43 R. 3. 22. a. b. where it was adjudg∣ed that the grant that King H. the 3. made to The∣nel* 1.85 Marshall of a Mannor, to which an Advow∣son was appendant, without thesewords (cum per∣tinentijs) and without any mention of the Ad∣vowson; yet notwithstanding, the Advowson passed in case of the King before the st〈…〉〈…〉ce of Praerogativa Regis, Cap. 15. And so likewise it is in the case of a common parson at this day, although in the 8 H. 7. 4▪ & the opinion of some others, in the 5 H. 7. 38 b. be against it, vpon which they inferre; that an Advowson is parcell* 1.86 of a Mannor, for so expressely is the opinion of others in the same booke of 5. H. 7. 38. b.
Secondly, in the 9 H. 6. 28. b. and in the 38.* 1.87 H. 6, 33 a. in the Abbeyes of Scyons case, the difference is agreed for Law, that if the King be seisied of a Mannor to which an Advowson is appendant, and granteth the same Mannor, and in the grant the words of the Pattent are dedimus* 1.88 & concessimus, the Mannor of D. expressing not the Advowson in the clause of the grant, if after∣ward in the habendum there bee, habendum cum aduocatione of the Church of D. the Advowson passeth by such grant, although it be not com∣prehended* 1.89 in the clause of the grant; but if the King grant the Mannor of D. to which no Ad∣vowson is appendant habendum cum aduacatione Ecclesiae de S. this Advowson passeth not; for
that, that it is mentione•• after the grant, the rea∣son of which difference they thinke to be, be∣cause in the first case, the aforesaid Advowson appendant is parcell of the Mannor, which is not so in the last case in the 8. H. 7. 3. b. and likewise in the 10. H. 7. 19. a. it is said, that an Ad∣vowson appendant is a compound thing, to the composition whereof, diuers things are requi∣site, al•• which things commixt, make the Man∣nor and euery of them is parcell thereof, for as Rent cannot be Land, so Land cannot bee an Advowson nec econuerso, yet euery of these* 1.90 things of diuers natures, make the Mannor, and are parcell of the Mannor, saith Keeble.
And if a man demand a Mannor by his Writ* 1.91 and an Advowson is appendant thereunto, hee ought to make an exception of the Advowson, which seemeth to prooue that an Advowson is parcell of a Mannor, vpon the other part those which affirme that an Advowson is not parcell, but onely appendant to the Mannor, denyeth that an Advowson lyeth in Tenure; for that, that only the principall thing is holden, and not the thing appendant to such principall; As* 1.92 Leates, Co••••ts, Estreates, Way••es, and the like, for (said they) if an Advowson appendant be by grant seuered from the Mannor, it is holden by such and the same seruices as it was holden by before, for that, that if the Advowson be seue∣red it should be holden pro perticula, thē the Ser∣vices
should be encreased, and so double Servi∣ces should be due for one thing, for so he should haue the entyre seruices for the Mannor, and also Service for the Advowson beeing seuered▪ which is repugnant to reason.
In this varietie of opinions; I thinke it were most conformable to reason, to say that an Ad∣vowson is not part nor parcell of a Mannor, but rather appendent to a Mannor, for the better entendment whereof, the Law of England cal∣leth those sorts of Inheritances which are an∣nexed to others, and what the Logicians call* 1.93 Aduncta, by these names, that is to say; Inci∣dents, appurtenants, appendants, and regar∣dants, of which termes of Law (Regardant) is properly of Villeines, and the word (Ap∣pendant) of a Common or an Advowson; of which two an Advowson is separable, but a* 1.94 common appendant is not in any case separable, for none can haue common appendant, but hee onely that hath the Land to which the common* 1.95 appendant is appendant. The other two words Incidents and Appurtenances, may generally bee affirmed of all those sorts of Inheritances that may in any manner bee annexed to other things, for so a Mannor with his appurtenances,* 1.96 may be intended of Advowsons, Commons, Villeines, Waifes, Estrayes, and the like, which are said to be Appurtenances to a Mannor, like∣wise the word Appurtenant may be applyed to a
Court, Messuage, or Gardein, that are said to be appurtenant to the Messuage, the word inci∣dent* 1.97 properly signifieth those things annexed which are not knowne by the precedent names of appurtenants or appendants, and yet are not∣withstanding* 1.98 annexed to other Inheritances, and in such sort a Court▪baron is incident to a Manor, a Court of Pipowders to a faire, fealtie to Homage, homage to Escuage; so likewise a Corrody is incident to a Foundership; and a∣gaine,* 1.99 of those some are seuerable, as the Cor∣rodie from the Foundership, some are inseue∣rable▪ as the Court-barron from the Mannor, except onely in case of the King, who hath pow∣er to seuer them. But that is called a part or par∣cell,* 1.100 which is a portion, and required to some composition of entyre and compound things, as the Demeanes and services are part of a Man∣nor, the Gleebe and the Tythes are part of the Rectory, so that these are not to be called Inci∣dents, Appendants, Appurtenants, but parts and portions of these compound things, of which they are said to be part, parcell, or portions, and are required necessarily, to the framing of such entyre thing, of which they are parts and porti∣ons, & hereof it followeth that an Advowson ap∣pendant is not any part, parcell or portion of a Mannor, no more then a common is part of that thing to which it is appendant, so that the word it selfe of an Advowson appendant is sufficient
to set forth and declare the same, to bee no part but appendant onely, as the words importeth, Wherf••re the first reason of the aduerse part* 1.101 may thus be answered. The bookes before men∣tioned namely, 43. E. 3. 22. a▪ 45. E. 3. 1••, b. 22. H. 6 33. a▪ which are to this effect, that an Advow∣son appendant may passe by the grant of a Man∣nor without saying (cum pertinentijs) in the case of a Common parson, and so likewise in the case of the King before the Statute of prerogati∣ua Regis, proueth not that an Advowson is part or parcell ••f a Mannor, for this being a thing ap∣pendant may aswell passe with the words (cum pertinentijs) as the things that are parts or por∣tions of the same entyre thing passeth.
For if a man grant common of Estouers to* 1.102 be burnt in such a Mannor, of the grantee by the grant of the Mannor this common passeth, without the words cum pertinentijs for by the feofment made of the Mannor without deed, all appurtenances pasle by Finchdens opinion,* 1.103 as Fitzh. abridgeth it, although it be not in the report at large, and for the argument of those in the time of Hen. the 7. before remembred, wee* 1.104 say for that, that an Advowson appendant passeth by the grant of the Mannor it is no good conse∣quence, for the reason aforesaid.
The second reason answereth the difference* 1.105 in H. 6. where the Advowson is granted before the habendum and where not, that it is not any
proofe that the Advowson appendant is parcell of the Mannor, for Prysot saith, that things in* 1.106 grosse or seuerall being named after the haben∣dum, cannot passe with the first things specified in the clause of the Graunt, but things appen∣dant or appurtenant to the premisses of the Grant may very well passe; although the appur∣tenants be specified after the habendum.
As concerning the exception of an Advowson* 1.107 appendant to be made in the Demaund of a Mannor, the same is not any proofe, that the Advowson is part of the Mannor, for the opini∣on of Stone is, that by the Demesnes of a Man∣nor,* 1.108 or by the Demesnes of the moitie of a Man∣nor, (as the case is there) without the words (cum pertinentijs) the Advowson appendant cannot be recouered.
AT this present it remaineth, to de∣termine if an Advowson appen∣dant to a Mannor is appendant, in respect that it consiseth of De∣mesnes and Seruices; or if it shal bee appendant to a Mannor, in respect of the Demesnes onely, in as much as the Demesnes are one corporall Inheritance, and such part of the Mannor, as onely lyeth in manuell occu∣pation.
This question was of late time largely dispu∣ted, & at the last, vpon graund deliberation lear∣nedly determined, in the Common Pleas, in a Qua∣re Impedit, betweene Gyles Long Pla••••••ffe, and one Hening Pa••••on, the Byshop of Glocester as Ordinarie, and Hadler as Clarke, and the same is there among the Rolles of Pasche 31. El. Rot.* 1.109 2024. which I haue set heere necessarily in briefe, and being thus:
A Feofement in Fee was made of the Man∣nor of Frembillet, and the Advowson thereto belonging, and Liuery of Seisin was made in
the Demesnes, in anno, 7. El. and after in anno 17. of her Reigne the Advowson was granted to one Ranger, and after in the 25. El. one Boy∣ter being ••enant of the same Mannor attorned to the Feoffee, then the Church became voyd, and if the Feoffee or the Grantee should pre∣sent was the question, for the better entendment whereof, wee will first see what can bee said vp∣on both pa••••s.
That it is appendant onely in respect of the Demesnes, tho•••• ••r the like authorities or rea∣sons may bee produced.
It is said, that an Advowson appendant to a* 1.110 Mannor, cannot be appendant to a Rent, or Ser∣vice of the same Mannor, but onely to the De∣mesnes, whereof onely if a man hath a Mannor to which an Aduowson is appendant, and granteth the Demesnes cum pertinentijs, the Ad∣vowson passe appendant therevnto; so like∣wise, if he grant the Demesnes, excepting the Advowson, the Advowson is now becommed in grosse.
If a man should haue a Mannor, and blacke acre that was holden of the same Mannor Es∣cheateth, so that the same Acre is become now parcell of the Demesnes, of the same Mannor, if hee that is so seisied of the same Mannor, grant all the Demesnes, excepting blacke Acre, and the same Advowson, the Advowson is be∣come in grosse, and yet it is a Mannor notwith∣standing,
for now blacke acre is onely the De∣mesnes which together with the other seruices cause the Mannor to continue, neuerthelesse the Advowson is become in grosse, for that, that it was appendant onely to the Demesnes of the Mannor, which were aliened, and cannot now be appendant to blacke Acre: because it was neuer before appendant to the same, in as much as appendancie is onely granted vpon continuance and prescription, and not vpon the same reason.
If hee that is seisie of a Mannor, whereof blacke acre is holden, and the same Escheateth, and he granteth the same blacke acre, (vna cum Advocatione) the Advowson passeth not appen∣dant to the acre, but in grosse, as aforesaid; but if in the two aforesaid cases, a man were seisie to a Mannor before the Statute of Westminster the third, De quia emptores terrarum, with an Advowson thereto belonging, and giue certaino acres parcell of the Demesnes of the same Man∣nor to diuers persons, to bee holden of the same Mannor, if afterward such acres Escheate, and the Lord granteth the residue of the De∣mesnes excepting the acres so escheated, and the Advowson; the Advowson is still appendant to the same Mannor: because it was appendant to the same Acres, before they were giuen to bee holden of the Mannor.
If a man were seisied of a Mannor to which
an Advowson is appendant, and before the Sta∣tute of Westminster the third were likewise so seisied of other acres of land in grosse, and not parcell of the same Mannor, if he had giuen the same acres of Land to diuers persons to bee hol∣den of the same Mannor, (as he might then haue done) and after the same acres of Land eschea∣ted, now are they parcell of the Demesnes of the same Mannor, although they neuer were so before, and after the Lord of the Mannor gran∣ted all the ancient and former Demesnes of the same Mannor vnlesse one acre, this acre and the other acres Escheated maketh now the De∣mesnes of the same Mannor, and the Advow∣son appendant, is still appendant to the whole Mannor, but yet it was so appendant in respect of the one acre, that was parcell of the ancient Demesnes of the same Mannor, and if the Lord intend at any time to seuer this, from the Man∣nor, and still to keepe it appendant to no acre, but onely to that which was parcell of the Demesnes of the Mannor, all which rea∣sons prooue that the Advowson is appendant more in respect of the Demesnes then other∣wise.
Of the other part, those cases proue that an Advowson appendant to a Mannor is not appen∣pant to any part of the Mannor, but to the en••yre∣tie, for it is an intyre thing; and therefore if a man hath a Mannor to wch an Advowson is appen∣dant,
i•• he Enfeoffe I. S. of the same Mannor, and 〈…〉〈…〉 L••uerie of the Demesnes and before the 〈…〉〈…〉t of the Tenants, the Church be∣comes voyd, the Feoffee shall not present; be∣cause he hath not the Mannor to which the Ad∣vowson was appendant: but if the tenants after∣w•••••• ••tto••ne within sixe moneths, after the auoy∣dance he may very well present therevnto.
So likewise in the former case, if the Feoffor o•• the estranger present before the Attornment of the Tenants, yet if afterward attornment be had within the sixe Moneths after the avoi∣dance, the Feoff••e may bring and maintaine his Quare Impedit, and so re••uer his presentation, which prooueth that the Advowson is appen∣dant to the whole Mannor, as it is entyre, and not by reason of the Demesnes onely, for the determination of the Law in this; It is true that the Advowson in such case is appendant to the entyre Mannor, and not to any part thereof, during such temps, as it remaines a Mannor without alteration, or disjoyning the Advow∣son from it; neuerthelesse, if you will diss••lue the Mannor and seuer the Advowson from it, and yet desire to haue the same appendant, then it cannot be appendant to any part of the Man∣nor, but onely to such Lands as were of the an∣cient Demesnes of the same Mannor; where∣fore in the first case, Iudgement was giuen,* 1.111 that after the Attornment had, the Advowson
passed to the Feoffee of the Mannor, as appen∣dant to the entyre Mannor, and that the Graunt made in the meand time betweene the liuerie of the Demesnes, and the attornement of the Te∣nants, was voyd, and that the Advowson p••ssed not thereby to the same Grantee of the Advow∣son, but is (by the Attornment, by which the seruices passed) made appendant to the entiretie in the hands of the Feoffee.
IN the two last former Lectures hath beene declared at large; First, to what kind of Inheritance an Ad∣vowson may bee properly appen∣dant, and then in what manner, it may be ap∣pendant: Now remaineth the third thing th••n treated of, that is to say, how it may be sundred from the principall; and againe, by what meanes it may be thereto annexed by Entrie or without entrie into its principall.
It may bee sundred eyther rightfully or by a rightfull conueyance, of which wee shall speake more at large when wee declare the nature of an Advowson in grosse, and of that which is partly
in grosse partly appendant, whether it may bee sundred in a wrongfull manner, as by a tortious act, that is to say, by Disseisin of the Mannor, to which it is appendant, or by a wrongfull assurance as by discontinuance, or other wrong∣full disposition thereof. As for vsurpation wee shall speake thereof in a place more conuenient afterward at large, if therefore a man be disseised of a Mannor to which an Advowson is appen∣dant, and the Advowson becomes voyde the Mannor still remaining in the hands of the Dis∣seisor, this was ancient Law as Bracton saith, that* 1.112 he should not haue presented to the Advowson vntill he had recontinued or made his entrie in∣to the Mannor, because saith he, Quod sesinam habere non poterit quis de pertinentijs, antiquam acquiseret principale. But at this day the Law is contrary, so that if a man be seisie of a Mannor, and the entrie of the Diseissee being lawfull the Advowson becommeth voyde, the Disseissee may present to the Church, before his entry into his Mannor, but if the Disseisor bee seisie of a Man∣nor by disseisin, to which an Advowson is ap∣pendant, and the Church becomes voyd, so that the disseisor presenteth, whereupon the Clarke is admitted Instituted and Inducted, it seemeth that the disseisee in this case shall not haue his Quare Impedit, to recouer his presentation, vn∣lesse he first enter into the Mannor to which the Advowson was appendant, and though hee en∣ter;
yet he shall be driuen to his action.
Yet if a man be seisie of a Mannor, to which an Advowson is appendant and bee disseisied of the same Mannor and the Church becomes void, and the Disseisor presenteth one that is admit∣ted, Instituted, and Inducted, and so continu∣eth parson sometime after, if afterward the Ad∣vowson become voide, now is not the Advowson so gained by such vsurpation, but if that I that was deseisied enter into the Mannor I may a∣gaine present to the Advowson, because the former vsurpation was a meane betweene the disseisin and the reentrie, by which reentrie the Disseisors estate as well in the Advowson as in the Mannor, is clearely defeated. But it is o∣therwise of an Advowson in grosse, in which case the Patron shall be driuen to his Writ of right, so likewise if I be seisie of a Mannor, to which an Advowson is appendant, and afterward the Church becomes voyd, and I present and be di∣sturbed, and after I be deseisied of the Mannor, here I shall bring my Quare Impedit and recover my presentation, before I enter into the same Mannor.
And so much is said, where the entrie of him that hath right is lawfull in the principall, but where the entrie is not lawfull there he shall not present to the Advowson, vnlesse recontinuing the principall; and therefore if a man bee seisied of a Mannor to which an Advowson is appen∣dant,
and be disseisied, if the Disseisor dye sei∣sied, and the Church become voyd, the dissiessee shall not present to the Church, vnlesse hee first recover the Mannor.
If Tenant in tayle bee seisied of a Mannor, to which an Advowson is appendant and maketh discontinuance of the same Mannor, and after dyeth, if the Church become voyd the issue in taile shall not present therevnto, vntill hee hath recovered the Mannor by Formedon to which the Advowson was appendant.
Likewise if a man bee seisied of a Mannor in right of his wife, &c. and both discontinueth the Mannor with the Advowson, and the Husband dyeth, if afterward the Church become voyde, the wife shall not present vntill shee hath recon∣tinued the Mannor by Cui in vita, but forasmuch as the Statute of the 30. H. 8. 28. giueth in such case power to the wife, or her heires, to enter into the Land so aliened.
The Law at this present day, must of necessity bee taken, that the Wife or her heires in the for∣mer case may present, without recontinuance of the Mannor, for that, that the same Statute or∣dained then, that such alienation &c. Feoffe∣ment act or acts, made or done by the Husband, shall not bee nor make in any manner any dis∣continuance thereof, or be preiudiciall to her or her heires.
The former rule hath an exception in this man∣ner,
yet notwithstanding the entrie being not lawfull in the principall; yet if the Advowson be severed, and in any manner cannot bee recove∣red, then may the party wronged notwithstan∣ding present without recontinuance of the prin∣cipall; As if a man before the Statute of the 32. H. 8. 28. be seisied of a Mannor in right of his Wife, to which an Advowson is appendant, and giueth to an Estranger the same Mannor or parcell thereof with the Advowson in ••e••, and dy∣eth afterward, the Church becommeth voyde, and the Estranger presenteth and then Alleneth the Land to another in see, sauing the Advowson, and now the Church becomes voyde, the wife in such case may present to the Church without any recontinuance of the Land discontinued to which the Advowson was appendant.
Quare therefore in the 5. H. 7. 36 where it is hol∣den that if there be tenant in tayle of a Mannor to which there is an Advowson appendant and he alieneth the Mannor, with the Advowson in ••ee, and the Discontinued granteth the Ad∣vowson to another in Fe••, severing it from the Mannor; the issue in tayle shall not present vn∣till such time as hee hath recontinued the Man∣nor, neuerthelesse if a remitter bee of the princi∣pall, hee that is so remitted may present to the Advowson the next time that it becommeth voyd, notwithstanding any vsurpation thereof before had: For if Tenant in tayle bee of a
Mannor to which an Advowson is appendant and discontinueth the same, and the Disconti∣nuee granteth the Advowson to another in fee, and afterward reenfeofeth the tenant in tayle of the Mannor, who dyeth seysied of the Mannor, now his heyre shall present to the Advowson when it becommeth voyde; and if hee be distur∣bed hee shall haue a Quare Impedit, because hee is remitted to the Mannor, and hath not any remedie otherwise to come to the Advow∣son.
But vpon the other part if tenant in tayle bee seisie of a Mannor to which an Advowson is appendant and discontinueth the same, and afterward the Church becomes voyde, and the tenant in tayle presenteth to the Church by vsurpation, it seemeth by the better opinion, of the 5. H. 7. 36. 38. that hee is not remitted to the Advowson, for that, that his ancient right therevnto was as to an Advowson appendant, but now it is in grosse; But if the tenant in tayle had aliened the same to an Estranger in fee, and after dyeth; notwithstanding that, hee take the rents and services, that afterward discen∣deth to the Issue, yet is the issue therevnto remit∣ted; because such rents and services are parcell of the Mannor and not appendant.
And so it was likewise before the said Sta∣tute of 3a. H. 8. if a man bee seisie of a Man∣nor which is an Advowson appendant in
right of his wife, and discontinueth the same Mannor, and after the Church becomes void, and he presenteth to the Church by vsurpati∣on, and dyeth; hauing issue by the wife, and the wife also dyeth, the issue in this case is not remitted to the Advowson, for the rea∣sons before shewed; hereof it en••ueth likewise, as before partly hath appeared, that in all ca∣ses where there is a Mannor, to which an Ad∣vowson is appendant, and the Mannor with the Advowson is aliened with wrongfull conuey∣ance, and the entrye of him that hath right is not taken away, there may hee present to the Church without recontinuance of the Man∣nor, to which the Advowson is appendant; and therefore if a man make a lease for life of a Mannor to which an Advowson is appen∣dant, if the lessee for life make a Feofment in fee, of the Mannor and Advowson; and after the Church becommeth voyd, the lessor may pre∣sent to the Church, without any entrie made into the Mannor, because his entrie was lawfull into the Mannor. But if it be a rightfull purchase that requireth some other act to be done, for the ex∣ecution and perfection of the same, then cannot the perfection thereof bee accomplished in the accessarie, that is to say, in the Advowson be∣fore the same bee performed in the prin∣cipall; wherefore it is holden by the better opinion in the 9. E. 3. 43. 839. that where a
certaine Chamber was exchanged for certaine Acres of land, with an Advowson appendant to the same acres of Land: to perfect this ex∣change, hee that had the acres and Advowson in exchange, could not present to the Advow∣son vntill he had made his entrie into the acres. And thus much hath beene said▪ how an Ad∣vowson appendant may bee seuered from the principall, and againe recontinued with re-en∣trie, or without entrie into the same.
AS concerning our first purposed Diuision, to be eyther appendant or in grosse, or partly appendant, or partly in grosse; I haue before prosecuted the first part, that is to say; The natures of Advowsons appendant, now therefore it resteth to speake somewhat of Advowsons in Grosse.
The originals of Advowsons in grosse, see∣meth to be grounded vpon two occasions; The first is, that Advowsons in grosse at the beginning begun originally by one of the before-specified three manner of wayes; which is, Ratione fun∣dationis, for when they were agreed, that hee that founded the Church, and was at the cost of
the building thereof, should be Patron thereof; hee cannot be Patron of this by reason of any Land or D••••ation, by which his patronage might be appendant, but onely by reason of the building, which being a Patronage without Land, must of necessitie bee the originall cause of Advowsons in grosse.
The second occasion of Advowsons in grosse, was the sundering and seuerance of them from the principall to which they were first appen∣dant, and so by Graunt or other Conueyance they became in grosse, which before were ap∣pendant; wherefore how they may be fundred by Graunt, now let vs consider, and see what questions in our Bookes haue been moued here∣vpon. In the 33. H. 8. 44. 48. 112. Pyer of the Opinion that Shelly is, That if a man be seisied of a Mannor, to which an Advowson is appen∣dant and alien one Acre parcell of the Mannor, and by the same Deed, after graunteth the Ad∣vowson, that the Advowson shall passe in grosse; otherwise, hee thought the Law to bee as if the Feofment were made of the entyre Mannor; yet this Difference agreeth not with the opinion of Hill, who thinketh that in both cases, the Ad∣vowson passeth appendant.
Yet I thinke, If a man be seisied of a Manner to which an Advowson is appendant, and after granteth by his Deed one Acre parcell of the Mannor, and by another Deed the Advowson,
and deliuereth both those Deeds at one time to the Grantee, although in construction of Law, both those Deeds are but one Deed; yet the Advowson passeth in grosse clearely, and not appendant to the Acre.
If a man be seisied of a Mannor with an Ad∣vowson thereto appendant, and graunteth the Mannor to I. and S. excepting one acre, the Ad∣vowson not being specially spoken of, in the Grant, it still remaineth to this Acre excepted; Fo〈…〉〈…〉 saith Bracton▪ Si partem fundi dederit quis quamvis cum omnibus pertinentijs suis, & partem retinuerit, non propter hoc transfertur advocatio sed cum donatore, remanebit licet minimam par∣tem fundi retinuerit non enim transfertur cum a∣liqua parte fundinisi special••tur transfertur.
If hee which harh a Mannor to which an Ad∣vowson is appendant giueth one part of the Mannor, with one part of the Advowson to A. and the second part of the Mannor with the se∣cond part of the Advowson to B. and the third part of the Mannor with the third part of the Advowson to C. in fee, yet notwithstanding this Diuision, the Advowson remaineth in com∣mon, appendant.
If a Mannor to which an Advowson appen∣dant is belonging, discend to an heire, and if hee grant the moitie or third part of the Man∣nor cum pertinentijs, no part of the Advowson passeth; but if he assigne Dower to his Mother,
of the third part of the Mannor, cum pertinen∣tijs, she is hereby endowed of the third part of the Advowson and may haue the third present∣ment.
It a man bee seisied of a Mannor or one acre of Land to which an Advowson is appendant, and maketh a lease of the Mannor or acre, for tearme of life, excepting the Advowson, the Advowson is in grosse and cannot bee ap∣pendant to the reuersion of the Mannor or acre.
But if I lease the Advowson for tearme of life, reseruing the Mannor in my hands, yet the reuersion of the Advowson remaineth al∣wayes appendant to the Mannor, or to the acre of Land.
For if a grant be made by me of a Mannor or acre, with the appurtenances, the reuersion of the Advowson passeth, for the reuersion of an Advowson may bee appendant to a Mannor or acre in possession, but the Advowson in pos∣session cannot be appendant to the reuersion of an acre or of a Mannor.
Also, if a man hath a Mannor to which an Ad∣vowson is appendant and alieneth the same Mannor, and excepteth the Advowson, the Ad∣vowson is become in grosse, and although hee purchase the Mannor, yet is the Advow∣son still in grosse; and cannot bee appendant.
But in all these cases some are of opinion•• that
although the Advowson bee excepted out of the grant of the Mannor, yet neuerthelesse, it is requisite to haue a Deed of such grant contai∣ning such exception, otherwise the Advowson will passe with the Mannor.
HAuing formerly spoken of Advowsons appendant and in grosse, now remaineth the last member of the former di∣uision to be mentioned, which is Advowsons partly appen∣dant, partly in grosse.
Such Advowsons as are partly appendant and partly in grosse, are so deemed either in re∣spect of the time or in respect of the persons.
In respect of the time in this manner, some Advowsons there are, that are at one time ap∣pendant and at another time in grosse, and so a∣gaine may be appendant as occasion serueth. As if a man bee seisied of a Mannor or of an acre of land, to which an Advowson is appendant, and leaseth the same Mannor or acre, excepting the Advowson, the Advowson is now become in grosse, and yet after the lease is ended, shall
bee againe appendant as before.
In respect of the parson it may so happen, that an Advowson may bee appendant in regard of a proprietor thereof, and that in many cases.
One case to begin with, is this, that if a man be seisied of a Mannor to which an Advewson is appendant and an Estranger leauieth a fine of the same Advewson to him that is now seisied of the Mannor and Advowson, vpon which sine the said coun••ee: (being still owner of the Mannor and Advowson) granteth to the Counsor that hee shall present to the Advowson euery second auoydance, by this sine the Advowson remai∣neth in respect of him that hath the Mannor, still appendant to the Mannor as before, but in respect of the Counsor that neuer had interest before, at euery second auoydance it is become in grosse, and he shall present therevnto as to his Advowson in grosse.
But if (as he in the former case) hee that was seisied of the Mannor had leauyed the fine, (and the Estranger so being counsee) and made such grant to the counsee to present at euery se∣cond turne, the Advowson had beene totally in grosse; for by the counsance it had beene wholly in grosse, and scuered from the Man∣nor.
If three bee seisied of a Mannor that hath an Advowson appendant thereto belonging, and two of them releaseth all their right of the Ad∣vowson
to the third, the third is seisied of two parts of the Advowson as in grosse, and of the third part as appendant, for that, that the third part, was neuer seuered from the Mannor, but if the third dye, all the entyre Advowson des∣cends in grosse to his Heyre, for nothing was in Ioynture but the Mannot that suruiued to the other two, that released, their right in the Advowson, and no part of the Advowson can come to them; for that, the same was not in Ioyn••ure, at the time of the death of the third Ioyntenaue, and also because they released their right before.
If two Ioyntenants bee seisied of a Mannor to which an Advowson is appendant, and the one granteth all his right of the Advowson vn∣to another in Fee, this Advowson is both•• in grosse and appendant, and if hee that hath the Mannor, and ought to present euery second turne; bring his Quare Impedit, he shall not say that he is seisied of the Mannor with the Ad∣vowson appendant at euery second turne (name∣ly, when there is partition betweene them) to present by turne, but shall say that he was seisied of the Mannor with the moytie of the Advowson appendant.
If a Mannor with an Advowson appendant therevnto, descend to two coperceners, and they make such partition of the Mannor, and composition to present, although the com∣position
be otherwise then of right is due, yet is the first presentation to belong to the eldest, and the second to the second copercener, &c. and the Advowson remaineth still appendant notwithstanding such composition, to present by turne.
But if three Mannors discend to three Coper∣ceners, and an Advowson is appendant to one of them, and they make such partition, that eue∣ry Copartner hath a Mannor allotted to him, and composition to present by turne to the Advowson, now is the Advowson in such case severed and in grosse, in respect of the Co∣perceners.
If a man bee seisied of foure Mannors, and to one of them an Advowson is appendant and dyeth, hauing foure Daughters, who ma∣keth partition of the Mannors, so that eve∣rie of them hath a Mannor, out of which par∣tition the Advowson is excepted, this Ad∣vowson is in grosse by reason of the exception; yet it seemeth if all the other Sisters should dye, except shee to whom the Mannor was allotted to which the Advowson was apdendant, that the Advowson should bee againe appendant to the Mannor.
If two Churches bee, and the Advowson of the one is appendant to a Mannor, and the o∣ther is in grosse, and the two Churches hap to bee vnited, and vpon the vnion it is ordained,
that the Patrons shall present by turne, now in respect of him that hath the Mannor, the Ad∣vowson shall be appendant, and hee shall pre∣sent thereunto as to an Advowson appendant, but as to the other, hee shall present as to Ad∣vowson in grosse.
IN the aforesaid Lecture or reading hath beene declared such matters as was requisite for the explanati∣on of the word Right, set forth in •••••• Description of an Advowson, which word being there put in steed of that which the Logi∣cians call Genus, the rest of the words subsequent there likewise expressed, are the Proprieties ef∣fects, and qualities incident to an Advowson, thereby to distinguish this Right from other rights so that by such Discription, the nature of an Advowson may be fully Deciphered.
An Advowson as is said, is Ius presentandi, and the power to present is the very fruit effect, and entire profit of an Advowson, which is by the meanes of presentation to preferre and ad∣vance our Friend, and Presentation is thus de∣scribed.
A Presentation is the Nomination of a Clarke to the Ordinarie to bee admitted, and Instituted by him to the Benefice voyd, and the same being in writing, is nothing but a Letter missiue to the Bishop or Ordinarie, to exhibite to him a Clarke to haue the Benefice voided, the formall force hereof resteth in these words chiefly, Presento vobis Clericum meum, 13. H. 8. 14. b. Therefore in our Bookes of Law, an Ad∣vowson is called nothing but a Nomination or Presentation, a power to preferre and inable an∣other to haue the Benefice, which not with stan∣ding the Patron cannot inioy.
Wherefore if the Nomination of an Advow∣son be granted habendum the Advowson, the ha∣bendum is sufficiently pursuant; for although it varie in name, yet it is all one in nature, so that the Graunt of the nomination of an Advowson, is in substance the Graunt of the Advowson. For the profit and commoditie of an Advowson resteth in the Nomination or Disposition of the same: hereof i•• ensueth, that if a man grant to me an Advowson excepting the Presentation during his li••e, such exception is voyd and re∣pugnant* 1.113 to the Graunt. So that the opinion of Thompton in the second Commentarie of Plowden in the Arguments of Smith and Staple∣tons case, cannot bee Law; who thinketh that if Tenant in tayle bee of an Advowson, and bee granteth to one by Fine the nomination of the
Clarke to the same Advowson when it becom meth voyd, that this Fine shall not bind the Is∣sues, by the Statuto of the 32. H. 8. 36. Because such Fine is leuyed of a thing intayled, as hee thought; whereby aboue it hath appeared, that the Presentation and the Nomination is one thing, and the fruit and full profit of the Patro∣nage; and therefore such fine is of full effect and force to binde the issue in tayle, for the Advow∣sons, and yet if the case aforesaid bee so vnder∣stood, that tenant in tayle of an Advowson gran∣ted by fine the Nomination of the Clarke to one, and his Heyres, so that when the Church become voyd, the grantee and his Heyres should nominate a Clarke to the tenant in tayle and his Heyres, and that hee or they should present: the Clarke (so nominated) to the Ordinarie, and the tenant in tayle dyeth, such fin•• shall not bind the issues in tayle; therefore the fine is not of things intailed, for there is the nomination and presentation distinguished.
The presentation may bee distinguished from the nomination, so, that one may haue the Pre∣sentation, and another the Nomination, and so they may bee diuers distinct inheritances. As if I being seified of an Advowson in see, granteth to I. S. and his heyres, that he and his heyres euery time the Church becommeth voyde; shall nomi∣nate to mee a person to bee presented to the same Church, which person so nominated, I or my
heyres shall present to the Ordinary of the place to be admitted accordingly, into the Church.* 1.114 And a question hath beene moued here vpon who shall be said Patron of the same Church, some thinke that hee that hath the nomination shall be Patron onely, and that he that ought to present, shalbe as seruant to him that hath the nominatiō.
Therefore in the 14. E. 4. 26. the Iustices di∣stinguished, that if one bee seisied of an Advow∣son and granteth to I: S. and his heyres to nomi∣nate at euery auoydance to him and his heyres a Parson to be presented to the same Church, which Parson so nominated, shall be by him or hisheires presented to the Ordinary, that he to whom the nomination is so granted shall be Patron.
But if I grant to I. S. that at euery auoydance hee shall nominate to me two Clarkes, of which I shall present one to the Byshop, now I remaine Patron, not with standing this, because the Electi∣on is in me which of the parties named shall bee presented and haue the benefice.
If a man haue the Nomination to a Benefice, and an other the Presentation, and he that hath the Presentation granteth an Anuitie to a Clarke vntill he be advanced to a Benefice by the Gran∣tor, if afterward the Church become voyd, and the Grantee bee Nominated, to the Grantor to be presented ouer, who doth so accordingly, and vpon this bee admitted, Instituted and In∣ducted, yet the Anuitie shall not cease, for that,
that the Grante•• was not the•• vnto pref••••••ed by the G••a••tor, ••lthough he p••••se••te 〈◊〉〈◊〉. Of ••••e other p••r•• there is an au••ho••ity, that 〈◊〉〈◊〉 •• Spiri••••∣all ma•• haue the Presentation, and a Lay man the Nomination, if the Lay man nominate to the Espirituall man a Clarke to bee presen••ed o∣ver, who doth s•• accordingly, if before his ad∣mission the Lay man nomina••e another to bee likewi••e pr••sented, which the Spirituall man re∣fus••••h to doe; for that, that hee hath presented one already by his nomination, the Lay man shall not maintaine any Quare Impedit against the Presentor for such re••••sall; becaus••, the Spi∣rituall man is Patron, and beeing a Spirituall man, hee cannot change his presentation alrea∣die made; Also it should s••eme in such case, that the presentation should bee made onely in his Name, ••hat hath the Presentation, and not in his name that hath the Nomination; therefore, if the Ordinary should refuse the Clarke for dis∣abilitie, notice shall be giuen only by him, to him that hath the Presentation, & not to him that hath the nomination; for the better reconciliation of of those and the like authorities, distinguendum est sic, that in resp••ct it must bee had o•• such an Estranger, as shall vsurpe vpon the Byshop or vpon the Patron in regard of each other, and in respect of all strangers that vsurpe; Hee that hath the nomination is onely Patron, and shall haue a Quare Impedit or a writ of Right, as h••s
case requireth: In which his writ of Quare Im∣pedit, shall be this; Quam permittit ipsum pre∣sentare: but his declaration shall bee especiall, that the Plaintiffe ought to nominate one, & that be ought to present him ouer to the Byshop, and that B. hath diurstbed him of his nomina∣tion, and the writ to the Byshop shall bee a re∣coverie to the Plaint••ffe, Quod Ey••scopus admit∣tat Clericum ad denominationem, &c. in res∣p••ct of the Byshop that hath the presentation, he shall be said Patron; for if hee that hath the Pre∣sentation cannot varie from his presentation, the other shall not; yet if hee that hath the presenta∣tion, and he that hath the nomination bee both Laymen, then he that hath the nomination may varie in his presentation, and change the same as often as he will, vntill Institution be had: where∣fore in the former case it ensueth, that if hee that hath the presentation bee a Spirituall man, and present him that is nominated to him, beeing not fit, hee ought not to haue notice giuen him of the refusall of the Ordinarie, for this cause, he that hath the nomination shall not haue any no∣tice likewise.
For I thinke the Law to bee thus; If one hath the nomination and another the presentation, and the Church becomes voyde, if the Laps in∣curre, and hee tha•• hath the P••esentation onely presenteth to the Byshop, before the Byshop take benefit of the Laps, without any nomination of
the other, the Byshop in this case ought and is bound to admit his Clarke that hee so presen∣teth, as the Clarke of the Patron himselfe. If respect be had each of other, then are they both Patrons after a manner, and by iniurie offered by every of them to the other, one of them may punish the other. As if he that hath the nomina∣tion will present immediately to the Ordinarie, he that hath the presentation may bring a Qua∣re Impedit or a writ of right of Advo••son, against him as his case requireth, so if hee that hath the presentation refuse to present the Clarke nomi∣nated to him, or present one himselfe without nomination, the other shall bring a Quare Im∣pedit or a writ of right against him, and his writ* 1.115 shall bee Quod permat. ipsum presentare, &c. But in his declaration hee shall declare the espe∣ciall matter.
In every of which suites and recoveries, and in the writ to the Byshop shall be so; if hee that hath the nomination present to him that hath the presentation, he that hath the presentation may disturbe him in two manners; eyther by refusing the parson nominated, or by presenting some o∣ther* 1.116 himselfe that is not nominated. If hee re∣fuse to present him that is nominated to him; and suite bee commenced without any actuall presentation made by himselfe, then the writ to the Byshop of him that hath the nomination shall bee, that hee shall recouer his nomination,
and that the Byshop shall admit such as the o∣ther hath nominated to the presentor, accor∣ding to his grant of nomination: But if the di∣sturbance vpon which the suite is granted bee be∣cause the presentor that should present the parson nominated, hath presented some other himselfe, without nomination, then the nominator shall haue his writ to the Byshop to present his Clarke immediately without any nomination at all, to be made to the other, that hath the presentation and to remoue the other Incumbent.
Finally, if one hath the nomination, and ano∣ther the presentation, if such right of presenta∣tion acrew to the King, this shall preiudice, the inheritance of him that hath the nomination but he shall nominate to the Chancellor still, who in the name of the King shall present to the Ordinarie. And if the King present without any such nomination, the nominator shall bring his Quare Impedit, against the Incumbent onely, because the King cannot be tearmed as a Vsurper.
BEfore hath beene shewed what a Presentation is, and what is the effect and fruit of the Patronage; and finally, in what case the Presentation and Nomination differeth.
At this time it resteth, how to prosecute the things incident to Presentation, and to make show who may present, what parsons may bee presented, to whom the Presentation must bee made, and in what manner; But because no presentation can bee made vnlesse to a Church or Dignity, something shall bee showed, when they shall bee voyde, and vpon what oc∣casion.
An avoydance is in two sorts, actuall in Deed, destitute in Law, which is an avoydance de Fac∣to, and auoydance de Iure.
Actuall, is when the Church is actuall in deed destitute of his Incumbent in Law, when the Church being full of an Incumbent, is notwith∣standing
frustrate of his right and lawfull In∣cumbent by reason of incapacitie or crime in the parson of him that occupieth in steed of the rightfull and lawfull Incumbent, and there∣fore amongst the Canonists, Ecclesia Dr. vi∣duam tuam sponsumque habet invtilem, there is therefore a great difference betweene voydance in Law, and voydance in deed; the first of which two, the Espirituall Court hath to de∣termine, and therefore the supreame head may so dispense there, that such anoydance in Law shall neuer come to be auoydance in deed, and of auoydance in Law no title acreweth to the Patron, vnlesse something bee therevpon ac∣complished, by the Espirituall Court, as a declaratorie sentence or such like; but, vpon a∣voydance in deed, presentment acreweth to the Patron, yet in such and the like cases, Di∣stinguendum est, for if the dignitie bee temporall, as a Master of an Hospitall or such like, and that there be found defect in him by visitors, it is an actuall avoydance, and the Patron may vp∣on this make a new collation, without solemne sentence of depriuation; but if the dignity bee Espirituall, it is requisite vpon such defect that sentence of Depriuation bee giuen, before a∣uoydance can bee, and that such sentence be no∣tified to the Patron, otherwise Laps shall not incurre against him,
Auoidance and Plenartie, are primati••a con∣traria, which if they come to bee tryable by is∣sue betweene the parties, they are tryed by two distinct Lawes. Plenartie, which is, if the Church be full of an Incumbent or not, shall bee tryed by the Common Law, which is by the certi∣ficate of the Ordinarie; but Avoydance, which is, if the Church bee voyde or not, shall bee tryed by the Country impanuelled in a Iury, not∣withstanding if the issue bee vpon any speciall sort, or manner of avoydance, the same shall be taxed by the certificate of the Byshop, so that such speciall cause shall be Spirituall.
The efficient causes of avoydance, are eyther temporall as Death, or spirituall as Deptiuation, resignation, creation session, and entrie into Religion, whereof more shall bee said after∣ward.
IN the last Lecture or reading before, was shewed something of auoydan∣ces of Churches in generall, now it remaines to pursue the perticular meanes; that is to say, Death, Deprination, Re∣signation, Creation, or Cession, and entrie into Religion, of euery of which, we will speake some∣thing, as the cause requireth.
1 And first of all, concerning Death, Quae omnia solui••, the matter of it selfe is manifest, and needeth no further declaration.
2 As concerning Depriuation, it is a dis∣charge of the Incumbent of his Dignitie or Mi∣nisterie, vpon sufficient cause against him concei∣ved and prooved; for by this, hee looseth the name of his first dignitie, and herein two manner of wayes; eyther by a particuler sentence in the Spirituall Court, or by a generall sentence by some▪ positiue or Statute Law, of this Realme.
1 Deprivation, is in the Spirituall Court for that, that it is grounded vpon some defect in
the partie deprived, although it bee by act of Law, yet it is deemed as the act of the partie himselfe. The causes of Depriuation, by Censure in the Spirituall Court are to be referred to the Common Law, therefore let vs remember such of them, vpon which questions haue beene mooved in the Bookes of our Law, all which causes mentioned seuerally, may bee reduced to three principle points; first, want of Capaci∣ty; secondly, Contempt; thirdly, Crime. As concerning the first, although by the Common Law, a Lay person bee presented, and Institu∣ted, and Inducted, to an especiall Benefice, which Curate is altogether vncapable of the same, yet the Church is not therefore to bee said voyde, as if no presentation had beene, but it is still full of an Incumbent, de Facto licet non de Iure, vntill by sentence Declaratorie for his want of Capacity, the Church be adiudged voyde, and vpon this no Laps shall incurre against the Lay Patron, without notice (of such incapacity, & sentence of deprivation therevpon) to him giuen, King H. 4. presented one that was incapable of his presentation, and the Presentee was thereby admitted, instituted & inducted, and afterward the Pope enabled the presentee by his Bill, yet the King had a scire fac. and thereby re∣covered his presentation againe, because the In∣cumbent was not capable whē he was presented. If the Patron present one that is meerely a Lay▪
man, within the age of 25. &. he vpon this be Ad∣mitted, Instituted, and Inducted, and afterward a Qua. Imp. be brought against the Patron and the same Incumbent, whereof Iudgment is given by the default of the Incumbent, where indeed the Incumbent was neuer at any time duely sommo∣ned according to the Law, by reason of which Iudgment, the same Incumbent is removed, if vp∣on this afterward, the said Incumbent by sentence declaratory be deprived in the Spirituall Court, for want of Capacity in suite there, for the cause of his incapacity exhibited against him, such sen∣tence is good, & availeable in the Common Law, although the said Incumbent were before remo∣ved from his Beneside by the Iudgement giuen a∣gainst him in the Qu. Imp. for though such decla∣ratory sentence giuen against him by the Spiritu∣all Law, cannot remoue him that is removed al∣ready, yet it shall make this Incumbent answe∣rable to the next Incumbent, for all the meane profits received by him, that was the first Incum∣bent, from the time of his Induction. Yet if the first Incumbent so depriued, will afterward bring a writ of deceipt vpon the Iudgement given a∣gainst him in the Quare Impedit by default; for that, that he was not sommoned as aforesaid, hee shall haue Iudgement herein, and the same Deprivation had in the meane season in the Spi∣rituall Court, no Impediment therevnto; for that, that in the said suite of Deceipt
the Incumban••i•• shall not be in question, but onely the disturbance of the Plaintiffe, in the Quare Impedit, and so for Incapacitie.
Contempt, may likewise be a cause of Depri∣nation, as if the parson or other Incumbent bee Excommunicate, and he so remaineth in his obstinacie for the space of fortie dayes, hee is for this depriuable of his Benefice, and yet the Church is not voyd in Deed, without sentence in Depriuation giuen against him, and if before such Depriuation, the King as supreame Ordi∣narie and the head of the Church would haue a Dispensation to the Incumbent, who for all the sentence of Depriuation for his contempt had, hee shall hold his Benefice; such Dispensation were voyde, and should restraine the Patron from his presentation acrewed to him, by meanes of such Depriuation after ensuing.
The third cause, is Crime, within which may be comprehended Delappidation, or spoyle of the Church Benefice, once, in our Bookes, wor∣thy of Depriuation, likewise Sohisme or He∣resie; for the which, or if for some other causes the Incumbent were depriued in ancient time in the Court of Rome, vpon such Depriuation comming in question in our Law, the issue should be vpon the avoydance, and it should be tryed where the Church or dignitie is; but because, Crime is Hidra, with many heads, and an evill Tree, whereof is bred Ingens prouentus much
fruit, for all fruit of offences which may be com∣prehended vnder this name; therefore let vs sur∣cease further to deale with it, onely in generall, noting those three things as the incidents, and consequents of Depriuations.
First, that our Law adiudgeth not the Church actually voyde, without a sentence of Depriua∣tion, as hath beene before prooued.
Secondly, that though such sentence of De∣privation be meerely wrongfull; yet the Digni∣tie is voyd, and the sentence remaineth in his force, vntill it bee released.
Thirdly and lastly, if the party depriued with∣in time require by this Law an appeale (vpon such sentence of Depriuation giuen against him at the Court of the high Iurisdiction) such is the nature of an Appeale, that it holdeth (the sentence vpon which it was first brought) in sus∣pence; because, in the Common Law it is said, to haue effectum suspensum prioris pronuntiati; and therefore, if it bee brought vpon Depriuati∣on, it voydeth the vigour thereof, and reuiueth the former dignity, for such Church shall not be voyde, vntill the first sentence of depriuation chance to be affirmed in the appeale, and thus much of Depriuations in the Spirituall Court, shall suffice at this time.
Concerning Depriuation by Censure of Sta∣tutes and Positiue Lawes, see these Books; that is tosay, 13. El. Cap. 12. 26, H. 8. Cap. 3. reviued by the 1. El. Cap. 31. or 3.
THe precedent Lecture before go∣ing, hath shewed the particuler causes of Auoydance of Churches, whereof the two first, Death and Depriuation, hath beene at large disciphered; the next is Resignation, of which I will also at this time something speake.
Resignation, or as the Canonists tearmes it Remytation, Est Iuris proprij Spontanea refutatio, or whereas Resignation is the voluntarie yeel∣ding vp of the Incumbent (into the hands of the Ordinarie) his intrest and right which he hath in the Spirituall Benefice, to which he was promo∣ted. Of which the matter or subiect is the Spi∣rituall benefice, as promotion Ecclesiasticall.
The forme is the manner how, and with what words and due Circumstances it is or should be accomplished.
The finall Causes or effects hereof, is eyther thereby to make the Spirituall Benefice void and destitute of its Incumbent, or vtterly to anient and totally to extinguish such Spirituall pro∣motion.
The efficient Causes are the persons that re∣signe▪
and the persons to whom it is or ought to be resigned.
As concerning the matter; this onely may suf∣fice to be obserued, that all Spirituall Dignities presentatiue may properly be resigned, although they be Abbies, Priories, Prebends, Parsonages, or Vicaridges, yet such Dignities as are certaine may also be resigned, or to speake more proper∣ly relinquished, as were some of the Abbies in the time of King Hen. the 8. and so may Bishop. pricks at this day be resigned, &c. into the hands of the King as supreme Ordinarie of the Church and rightfull Patron of the same Bishoprickes.
As concerning the forme of Resignation, and protestation which must be when the partie will resigne, they are set out in the Register, fol. 302. in the folioes of the Booke following, as Fitzh. noteth in his Nat Br. fol. 273. F. or S. The words of chiefe effect in such instrument of Resignati∣ne, are Remantiare, Edere, & Dimittere, for Re∣signation is not any proper tearme of the Com∣mon Law.
Yet the Law of this Realme, more respecting matter then formalitie of words, hath ad∣judged a Graunt made by a Prebenda••ie to the King, to be an effectuall Resignation in the forme of these words following, that is to say:
Noverint me A. &c. exanimo Deliberatiuo, certa scientia & mero motu, & ex quibusda•• causis iustis & rationalibus me specialiter m••∣uent.
vltrò & sponte dedisse serenissimo Domino ••••stro Ed. 6. Angliae, &c. supremo Capiti totor•••• Prebendarum suorum ac omnia maneria terras, te∣nement a possessiones & hereditament a quecunque, tam spiritualia quam temporalia, ac omnem ple∣nam & liberam facultat. dispositionem authoritat. & potestat. dictae prebendae pertinen. spectan. ap∣penden, &c. habendum & tenendum eidem Rege Hereditor. & Successoribus suis, ad eius vel corum proprium vsum, &c.
As touching the efficient causes of Resignati∣on; as first, the person that resigne, if hee be not but onely Admitted and Instituted, al∣though as concerning the Spirituall Function he be a Parson before Induction, yet because no* 1.117 part of the Free-hold of the Spirituall Benefice is transferred to him, but by the Induction, hee cannot vntill after the Induction, if the King be Patron, make any good and effectuall resignati∣on;* 1.118 as therefore, Renuntiatio respi••it plerumque ius quesitum, ac repudiamco pertinet adius non∣dum acquisitum. As also for that, that by this submission and Institution, the Church is not full in respect that the King being patron, such In∣cumbent before Induction is full subiect to haue his Presentation and Institution revoked.
But if a Subiect bee Patron, and his presentee be admitted, such presentee (if hee be willing to leaue his Charge) may before Induction resigne
the Church, for the espirituall Dignitie was ful of an Incumbent in respect of his Patron, and be∣cause also there is no other meanes to cleare the Church of him but by such renunciation.
As concerning the person to whom Resignati∣on must be made▪ Distinguendum est; for if he be onely purposed to auoyd the Church, and to cause the Patron to present againe, then it ought to bee done to the Ordinarie to whom of right the Admission and Institution belongeth, and to whom the Patron is bound to present; for it is a Rule amongst the Canonists, Apud enim debet fieri renuntiatio apud quem pertinere, dignoscitur confirmatio, and Reason will, it shall be so; be∣cause the King as supreame Ordinarie, if such Resignation should be made to him, hee is not compelable to giue notice to the Patron of such Resignation, nor can hee or any other Ordinarie collate vpon the patron such notice.
Notwithstanding, if the purpose be vtterly to extinguish such Dignitie spirituall, the same Re∣signation may be made to the King, as to the su∣preame head of the Church, as in ancient time it might haue beene made to the Pope.
For such Authoritie and Iurisdiction as the Pope vsed in this Realme, was contradicted by an Act of Parliament made in the 25H. 8. and other Statutes to be in H. 8. and his Successors; which Iudgement and opinion I hold to bee firme Law, especially where the King himselfe
is Patron, or where the Patronage is to some Spirituall man for euer, vpon Spirituall parsons the Pope (before the Statute of the 25. E. 3.) by his prouisions and other meanes vsed more Iu∣risdictions then at any time Lay persons could be permitted to doe. The finall effect which consisteth in the end, wherefore Resignation was ordained, wee haue heard to be two fold, the* 1.119 one to adnihilate the Spirituall promotion, the other to make it voyde and fit for no Incumbent▪ of the first, we haue sufficiently spoken before, and the vse of the other is manifest by those au∣thorities subsequent.
A Prebend maketh a Lease for yeares rende∣ring rent, and after resigneth it, it is holden cleerely, that by this his Resignation, this Pre∣bend is discharged of the rent, and therefore such charge shall not be any burthen to his suc∣cessour; likewise if a parson resigne after hee hath made a Lease for yeares, the Lease is avoy∣ded.
Likewise, if a Parson permute or Change his Benefice, which indeed cannot bee accompli∣shed without Resignation, the Charge or Graunt made by such Incumbent for yeares, is vtterly voyde.
If a Parson grant an Anuitie out of the parso∣nage, and after resigne, if after all this the Pa∣tron and Ordinarie will confirme such Graunt, the Confirmation, and the Graunt which was
voyd before Confirmation cannot be availeable.
With which agreeth Pollyard, who saith;* 1.120 that if a parson charge a Gleebe, and after resig∣neth or dyeth, the charge is avoyded.
A Recoverie was had against a Parson in an ac∣tion of Debt, and in a fierifac. therevpon the She∣riffe returned, that the defendant was Clericus Beneficiatus & non, &c. in this case, if the Defen∣dant resigne, the plaintiffe is destitute of his re∣covery, for by such Resignation the Church is discharged; because, the Ordinary cannot se∣quester the Spirituall Benefice vpon any processe awarded to him.
But if the Incumbent that so chargeth, bee such as hath by the law absolute power to deale with the lands of his Spirituall Dignitie, without the Confirmation of any other, and may by the Law discontinue as Abbot or pryor or such like, then such charge by him shall not be voyd, by such Resignation, but shall continue against his successors vntill it bee avoyded by some o∣ther meanes.
Thus much concerning the finall cause of Re∣signation, to which suffer vs to annexe the cau∣ses allowed by the Common Law, to mooue a Byshop or any other bene••iced parson to relin∣quish and surrender their function, Conscientia criminis, debilitas corporis, defectus scientia, ma∣litiae plebis, graue scandolum, & irregularitas persona.
Lastly, let vs consider, that Resignation is dee∣med in the Law totally to be the act of the par∣tie, and therefore if any Incument being plain∣tiffe in any action resigne his Dignity or pro∣motion, his writ brought by him as Incumbent shall abate.
But if such Incumbent take out a writ con∣cerning his R••ctory, and afterward resigne, and againe be promoted to the same Dignity, before the returne of the Writ aforesaid, it is good and auaileable.
Vpon the part of the De••endant vpon the same reason, is the Law; that if any action bee brought against any Incumbent, that may charge him in respect of his seuerall promotions, his re∣signation (hauing the same suite; for that, that it is his act) shall not abate such writ or action.
It is to be noted, that there are two sorts of Resignations, the one is absolute, when the Incumbent intendeth so to make voyde the Church, and to surrender his right therein to the Ordinary, wherevpon the Patron may present whosoever it shall please him to the Church, as if the said had beene voyded by Death, or other meanes of Avoydance, as by precedent authorities hath appeared.
The other cause of Resignation, is causa per∣mutationis, of which in the Register, fol. 306. b. appeareth a precedent.
Whereupon also ensueth the forme of Pre∣sentation in this manner.
In Dei nomine, Ego H. W. nunc Rector Ecclesiae de P. London. Diocefies & prius Rector Ecclesiae de L. ••. Dictae P. Diocesies protestor dico & alle∣go in hijs scriptis quod si contingit quod huius∣modi Ecclesia me••, de P. absque dolo & culpa meis in hac parte à me aliqualiter evincatur volo & in∣tendo ad Dictam Ecclesiam de N. absque ali∣qua difficultat. libere & licite redire, & eam re∣habere iuxta Canonicas sanctiones & protestor in∣super quod non intendo nec volo ab huiusmodi pro∣testatione seu affectu eiusdem recedere aliqualiter in futurum sed eidem protestitationi & contentis in eadem volo & intendo in futuris temporibus sir∣miter adhaerere, iuris benesicio in omnibus semper soluo, &c.
But to what purpose Protestation should seem in our Law, I cannot perceiue; for that, that it appeareth by the Booke in the 45▪ H. 3. & Fitzh. exchange it.
NOw Creation is, where the Incum∣bent is not onely Elected, but conse∣crated Byshop, or Atchbishop. By the former Dignities of such Conse∣crated, the Benefices becomes voyd, and the Churches or places seuerall (where their former Sanctuarie was to be executed) and vtterly dis∣charged of their Incumbent, and this immedi∣atly vpon Consecration without solemne sen∣tence Declaratorie in the Spirituall Court.
The reason whereof, is not onely for Inconue∣nience of Pluralities; but also, because it should be likewise inconuenient for one and the same parson to be a Subiect and a Soueraigne, which in the course of our manner of Iurisdiction can∣not be, but is reserued in the Superiour.
Neuerthelesse, such auoyuance is not before Consecration or Creation, nor before Conse∣cration is he that is promoted, deemed or called Bishop, or Archbishop: as appeareth by those authorities of 5. E. 2. Fitzh. br. 250. vide 9. E. 3. f. 1. trial. 571. 7. E. 3. 40. a. b. vide 21. E. 3. 40. a. b. 41. E. 3. 56. b. 46. E. 3. 32. 11. H. 4. 37. 59. 76. & 22. H. 6. 27. ••.
For the better vnderstanding of this kind of Auoydance, it is to be noted, that as foure things are required to concurre for the full perfecting of any Parson or Parsons preferred to any Dig∣nitie Ecclesiasticall, presentatiue or Collatiue, as (to wit,) first of all Presentation, or as the case requireth Collation; secondly, Admission; third∣ly, Institution, and fourthly & lastly, Induction.
So in the promoting of a Bishop or Archbi∣shop, by the Spirituall lawes, were required (be∣fore the statute of the 25. H. 8. cap. 20.) also foure things, answerable in many respects to the foure former before recited. As first Election, second∣ly Confirmation, thirdly Consecration, Creati∣on, or Investure; and fourthly, Installation, or Inthronation.
The Election was made by the Deane and Chapter, or by the Pryor and Co••ent, where they being as Deane and Chapter, as in euery of the seas Cathedrall of Canterbury, Worcester, and Norwich, in which Churches the Pryor and Co∣vent was till the dissolution of Monasteries, at which time the same Pryories were dissolued, and in steed of them in euery of the same Cathe∣drall Churches, a Deane and Chapter hath been by priuate Acts of Parliament erected. But in some other Cathedrall Churches, the Election hath beene both by Deane and Chapter, as of Wells; and by the Pryor and Covent at Bathe; and in the Sea of Coventry and Lichsield. And in
some other Cathedrall Seas, the Election of the Byshop haue beene by two severall Deanes and Chapters, as in the Archbyshopricke of Dublin in Ireland, where both the Deane and the Chap∣ter of Christs Church, and the Deane and Chap∣ter of Saint Patricks joyned in Election, and both of them vsed to confirme the grants of the Byshop, although Christs Church was knowne to be the more ancient Church to that Sea.
As concerning therefore the Election of Archbyshops and byshops, the Kings of this Realme of their prerogatiue royall, and being im∣mediate Patrons of the same Cathedrall Church, in ancient time gaue and bestowed of their im∣periall Inrisdiction, Archbyshopricks and By∣shopricks, to such worthy parsons as they thought fit, without any Election of the Chapter as appeareth, in the 17. E. 3. 46. Stower, and this inuesture was by a ring and a little staffe, by the Deliuerie of the King, and Ensignes of the By∣shop; but afterward in the time of King Iohn, in as much, as the Popes had made constitution, that no man should enter into the Church by a se∣cular person, totally, and that the Bishop of Rome coueted to erect the Popery aboue the Throne of Kings. A great Controuersie was now a∣mongst the Monkes of Canterbury, vpon the death of Hubbert their Archbyshop, con∣cerning the Election of a new one, and although the youngest sect of the Monkes ha∣uing
license of the King, and also appointment of the King to chuse Iohn Gray, one of the By∣shops in this Realme for their Archbyshop, yet the quarrell grew to such fervencie, that it could not be quenched vnlesse from Rome, where the Pope taking opportunity of such discention, would not receiue any of the Elected, but for∣ced the Monkes to chuse for their Archbyshop Stephen Langhton, then Cardinall of Saint Chrisogon, whereof ensued the great discord be∣tweene the King, and the Pope; of which, such was the tyranny of Antichrist, that not onely the whole Land was interdicted, and so remained fiue yeares. But the King was accur∣sed, and the Subiects were discharged of their obedience, and oath of their allegiance to their naturall Prince; and Lewis the French Kings son provoked to make warre, against King Iohn, vntill he were constrained to seeke peace at the hands of the Pope, to yeeld his Crowne to the Legate, and after fiue dayes to take it againe at the Legates hands, and become feodary tenant to the Pope for the same, paying an annuall sum of mony to the Church of Rome, for euer; but also to content his Cleargy, he gaue to them alwayes free Election of Spirituall Dignities, which memorable antiquitie of the Kings praeroga∣tiue and the losse thereof, is briefly touched in the 2. H. 4. 686. and more at large by the Hystories of those times, and although hereby free
Elections were giuen to the Cleargie, yet sued they forth the Kings license to proceed to Ele∣ction.
The Election of a Bishop thus made, did not beare the name of a Bishop but was to be called Lord elect of the place or Bishoprick, to which he was elected.
The second is Confirmatiō, which was vsually made by the Bishop of Rome and not any other, who (before such confirmation) vsed to examine the partie, and vpon cause of nonabilitie to re∣fuse him.
The third is Consecration, which was perfor∣mer by the Bishop and two other Bishops at the least of the same province where the Bishoprick then was, being thereunto appointed with the vse of certaine Ceremonies, as beatitudes, hol∣ding of the Bible ouer the head of the Parson to be Consecrated, laying on of their hands vpon his head, anointing, and other rites, therevnto* 1.121 requisite; And yet it is said, that the Pope reser∣ued the consecration of the Bishop to himselfe after election and confirmation, and before cre∣ation* 1.122 and Consecration: he that was so elected and consecrated, might still retaine the name of his former dignity, and if hee would refuse the imposed charge of the Bishopricke.
And yet after Confirmation and before con∣secration, of the parson confirmed, hee might exercise so much of his Spirituall function as
concerned the Iurisdiction, but no matters concerning Ordination might he meddle with, for the full vnderstanding whereof it is to bee knowne, that all things belonging to the Epis∣copall function or Ministery, are to be reduced to three points; for they belong to him, either Ratione Iurisdictionis, as the hearing of spirituall causes, Censures, and Corrections ecclesiasti∣call, as Excommunications vpon offenders and such like which may be performed by him after confirmation.
Or, Ratione Ordinationis, as giuing of Orders, consecrating or allowing of Churches, or such like, which he cannot doe before consecration.
Or, Lege Diocesiana, as the execution of Eccle∣siasticall payments and pensions due to him, as dioclesian of the Clargie rated vpon the bishop∣pricks of his Diocesse, called therefore by the common Law census Cathedraticus.
Notwithstanding, the King may restore to him his Temporalties after confirmation and* 1.123 before consecration if so it please his highnesse, but this is De gracia & non deiure.
But after Consecration, he was holden in all respects a perfect Bishop, and all his former dig∣nities thereby were avoided, for although by Confirmation spirituale coniugium contrahetur, yet by consecration consumatur.
The last thing is, Installation or inthronation, by which he is fully enabled, to pursue his Tem∣poralties
out of the hands of the King, and actu∣ally to enioy the benefit thereof, but if after con∣secration and before he sue for the temporalties out of the hands of the King, the free-hold bee in him, or not is diue••sly taken in the 38. E. 3. ••0. ••, 5.
Notwithstanding, the Metropolitan ought to certifie the day and time of the consecration of euery Bishop, within his Diocesse, for accor∣ding therevnto he shall be restored to his Tem∣poralties, and this I thinke to be reason.
Thus you see, that in some respect the Electi∣on of a Bishop resembleth the Presentation of a parson, the Confirmation, resembleth the Ad∣mission, of a parson, the Creation resembleth the Institution of a parson, and the Installation or the inthronation the Induction of a parson, yet in many other respects they differ.
And although after the abrograting of the Popes authoritie out of this Realme, it be or∣dained by the 25. H. 8. cap. 20. that the election of Bishops and Archbishops, should be altered and the King restored to his ancient prerogatiue therein, which prerogatiue King Iohn and his ancient progenitors long since enioyed, and al∣though likewise the Ceremonies, forme, and manner of consecration of Bishops by the Au∣thority of parliaments, in the time of King Ed. the sixt, were now appointed and published, all acts of parliament being repealed by the first
and second of Philip and Mary, are now reviued and in force, by Eliz. yet our former position holds now firme Law, that no Church nor Spiri∣tuall Dignitie at this day, becommeth voyde, by king the Incumbent thereof Byshop, vntill his Consecration, as well by rigour of ancient time, as by Statute.
And therefore at the Common Law, if the King vpon defect, or otherwise, giue by vertue of the 25. H. 8. 20▪ by his Letters pattents to any fit parson, any Byshopricke or Archbyshopricke within this Realme, without Election, and there∣vpon before Consecration restore to him his Temporalties, or if the Pope had giuen a Bysho∣pricke to any fit person by reseruation, which a∣mounteth in Law to an Election and Confirma∣tion, if the King had restored to him his Tempo∣ralties, yet in both cases vntill Consecration, he is no perfect Byshop, nor his former Dignities by such Grant and restitution of Temporalties be∣come voyde vntill Consecration as aforesaid.
If before the 25. of H. 8. 10. the Incumbent of a Benefice had beene Elected Byshop and confir∣med, and before consecration had, obtained of the Byshop of Rome, a dispensation still to enioy his former benefice, notwithstanding his Crea∣tion or Consecration, had ensued accordingly; yet by such Creation, the Church should not haue beene voyde, but the partie still enabled to retaine the same Benefice against the patron
by vertue of such Dispensation.
So at this day, if an Incumbent of a Spiritu∣all Benefice, be elected and confirmed, and be∣fore hee bee consecrated, obtaine licence or dis∣pensation of the Archbyshop of Canterbury, to detaine the Benefice incommendam; yet hee shall be promoted to the same Byshopricke, although his licence neuer bee enrolled in the Chancerie, according to the 25. H. 8. but onely enrolled by the Register of the Archbyshop, although the Consecration be before this licence or dispensa∣tion appointed to take effect, yet by vertue of such Dispensation, the former Dignitie or Bene∣fice becommeth not voyd, by the same Conse∣cration. Yet if the I••eumbent of any Spirituall benefice be elected, consecrated, and confirmed Byshop, and after his Consecration procureth a Dispensation of the Pope in papacie, or of the Metropolitan since the Stat. of the 25. H. 8. c. 20. such Dispensation shall not be available; because, by the Consecration, the former Dignity or Be∣nefice was actually, and in Deed voyd; and then, neyther the Dispensation of the Pope, could at any time, nor of the Metropolitā at this time, take from the Patron, the right of his presentation of such avoyded Dignitie, by the Consecration acrewed to him; because, after the first Digni∣tie is once voyde by the Consecration, the Dis∣pensation commeth too late.
Yet the King, Ex summa authoritate sua Regia
Ecclesiastica qua fungitur, may grant (to the By∣shop that is consecrated) power to take and re∣ceiue by presentation, Institution and Inducti∣on, any Spirituall Benefice, and to hold the same in Commendam, notwithstanding his estate of being Byshop, for so the Pope vsed to doe, and the same Authority is recognised by the Statute of the 25. H. 8. to be in the King or Queene of this Land, which was within this Realme by the Pope.
Finally, this is to be noted, that whereas before it hath bin said, that Deprivation is the act of the Law, yet grounded vpon the act of the partie; So is Creation of the Byshop, the act of the Law, wherefore if a man bring an action and pen∣dant his writ, bee created Byshop, the writ shall not abate; because, it is onely the act of the Law, but yet Resignation is meere∣ly the act of the party, thus much for Creation.
Tull: Offi••. lib. 1.
Quid.
Fitzh. N. Br. 30. Ibid. 33. a. 31. E. Ib. 34. 9. E.
14. H. 3. Fetzh. qua∣re Imp. 183.
Summa ho••∣stènsis d•• ju∣re patrono. Sūma An∣glse eod. tit. Sūma Sil∣uestrinae tit. Patronatus.
34. H. 6. 40 v. Asliton.
Iohan. Bel∣lonius de et i∣mologijs.
34. E. 3. Fitzh. Qu. Imp. 187.
••••••ma ho∣stieus. ti••. ius Patronas.
I. Honos
Onus.
Vtilitas.
Breuia.
33. H. 6. 34 b. & 35 a. act.
13. E. 3. 15. b. 33. H. 6. 33. a. 5. H. 7. 36. b. 37. a. Fitz••. 1•• br. 217. b.
12. H. 8. 7. b. per Poll∣yard.
Com. 284. a
Com. 487. b
Bracton Jus.
2. H. 7. 36. Ratio 1.
12. H. 8. 7. b
21. H. 7. 4. ae
Ratio, 2.
31, ••. 3. Graunt 90, Anuitie 53.
Ratio, 3.
Fitzh. Re∣lease, 57. ••ur ven. 6. 33. aide •••• Roie, 103.
7. H. 6. 38. b 8. H. 6. 24.
21. H. 7. 44
7. H. 4. 16. ••
11. H. 5. ••. 8▪ b. 14. H. 8. 31. ••.
Fitzh. 30. b
38▪ ••. 6, 20 a. Per Por∣••escue.
Com. 157. ••
45. E. 3. 19. b
32. H. 6. 3•• a. 7. H. ••. 13, b.
Fitzh. fol. 34. f. 9. E. 3
43. E. 3. 16. 20. E. 4. 15. b 5. H. 7. 17. b 6. H. 7. 3. a. 12. H. 7. 16. a 26. H. 8. 2. a
33. H. 6. 34. b.
Com. 176. v
21. E. 3. 5. a 40. E. 3. 44. b. 42. E. 3. 7. b. 1. H. 4. 16. a. 33. H. 6. 34. b. 5. H. 7. 37. 14. H. 7. 26. a. 15. H. 7. 8. 43. E. 3▪ 15. b 33. H. 6. 35. 5. H. 7. 33. b.
33, H 6. 35 b. 5. H. 7. 37, b. 15. H 8. a.
5. H. 7, 37. On. 38, b.
20. E. 4. 15, b
5. H. 7, 38. 15. H. 7. 8 a. 7 E, 4 6. Fitzh. 29 3, 1 49. d 3. H 7. 5, a.
19. E. 2. Fitzh. Qu. Imp. 177.
Fitzh. 3. b. 32. H. 6. 11 b. 14 H, 6. 15, b. Fitzh. 30. v.
7, E. 3. 30, b Fitzh, 31. b. 14, H. 6, 15, b. 33, H 6, 11, b. 5, H, 7, 7, b.
14▪ H. 6 15 b, Fitzh, 11 br, 39.
29, E, 3, 5. b. 9, H, 6. 57, a, 32, H, 6, 22▪ a.
5▪ H 7, 36. a▪ 37, b, 12. H▪ 8, a.
8, E, 3. Fitzh, reco∣uery in va∣lue 11, & 9.
33 H, 6. 4. Lit. 20, E.
4. 15, a. 8, H. 7▪ 4▪ b.
Com. 161▪ ••
5. H. 7. 6.
5. ••. 7▪ 37. a. 13. a▪ 11▪ E. 4. 11. v. 2•• E. 4. 15▪ b.
Fitzh, 33. k
••.
10. H. 7. 19
33. H. 6▪ 4. b. lib. vlt.
34. ••. 3. Quare ••••p. Fitzh, 10.
9. E. 6. 5. 9. b. 20. Dyer.
14 H. 6. 25 b. Fitzh. 39
••2. H. 6. 64. b.
33. H. 6. 11 12. a.
6, ••. 6. 74. b 44. Dyer.
18, E. 3, ••5.
41, H. 4. Fitzh. 88. 33. H. 6. 5. a. fine.
5. H. 7. 10. a Fitzh. feof∣ments and feof. 115.
17. E. 3. 45 18, 19, 21, 22. E. 3. 6. b 7. a. Thorpe.
Fitzh. 32▪ ••
43▪ E. 3. 26. b or. v. Thorp.
17. E. 5. a. Mombray
Com. 170. b. 16, H. 7, 13 b▪ &. 9, b.
17, E, 3, 51▪ •• 20. E. 4. 6. b. 11, H 6. 32. b
5. E. ••. Qu. Imp. 165. & 178. 7. E. 3 12, a. 51. a. 16. E. 3. w, d•• faits, 11, 6, 5. E. 3. 26 b. 11, H. 6. 18 b. 31. H. 6, 14. a. Fitzh. 33. v. t. 34 & 35. f.
2. E. 3. Grants, 89. & 56, Dyer 35, 7, E. 4. 61. a, 75, a:
11. H, 6, 18 a. & 32. b. 17. E. 3. 51. ••
11. H, 6. 18 & 32. b. ••
11▪ H. 6. 18 & 22.
8, H. 7, 16. Com. 169, b
43, E, 3. 30 a. Fitzh. Qu. I〈…〉〈…〉 p. 13
33. E. 3. Fitzh. aid le Roy, 103.
Ibid. Fitzh. 103.
Ratio. 1.
22. H 6 33 lib. fund leg. 70.
2. Ratio. 2.
9. H 6. ••8 or 8. b.
38. H. 6, 33 a, 39. b.
10. H. 7. 19 a, Keeble.
Ratio. 3.
5 H. 7. 36, a & 38, a
4. E, 4, 36. b
••it. 184.
9. E. 4, 39. b 5▪ H. 7.
5. H, 7. 4. b
21 E. 4. 32. b 19. Ass 10
8. H. 7. 6. 1. E. 4 10. a. 18 H. 7 12, b 11, H. 6. 81 21. Ass. 53.
Br. incid. 34
12. E. 288.
1. Reason Answered.
Fitzh. 181.
44 E▪ 3, bre, 581,
5. H, 7, 37, b.
9, H, 6, 28, b, ••3. H. 6. 39.
38. H. 6. 38. a.
3. Reason Answered.
19. E. 3. Fitzh. br. 884. Regist. 228. br. incid. 38.
P. 39. 39. Eliz. Rot. 2024. Longs case, in Com. bank:
5. E. 6. 70. Pl. 41. Dyer
Iudgement.
Bracton. lib. ••. ••••. 55. C. 23.
38. H 6. 38 b. 38. a.
••4. E. 3. 69 a. b. 14. H. 4 11. a. 1. H. 5 16. ••. &. 4. 123. a. 21. H. 6. 17.
Fit••b. 33. b 14. H. 4. 11. a. 21. H. 6. ••7. a.
24. E. 3. 69 b.
Com. 526.
••1. E. 3. ••. ••
1. 2.
14. H. 8. 8. a
38. ••. 3. 30 b.
5. ••. 2. Fitzh. 800, 2, E, 3▪ Fitzh▪ bre. 250, 21, ••. ••. 5. 6.
41, E, 3, 56 46, ••, 3. 32 ••.