A COMPLETE PARSON: OR, A DESCRIPTION OF ADVOWSONS', or Church-living. WHEREIN Is set forth, the interests of the Parson, Patron, and Ordinary, etc. WITH Many other things concerning the same matter, as they were delivered at several Readins at New-Jnne, By I. DODERIDGE, Anno, 1602, 1603. And now Published for a Common good, by W. J. LONDON. Printed by B. A. and T. F. for john Grove and are to be sold at his Shop at Furnivals' Inn gate. 1630. To the Reader. Books that are not able to protect themselves, may require large Preface and Dedication, this needeth none, it teacheth the Law, and therefore cannot fear any Informer; errors of the print may here and there offer themselves, but for any other, the honourable Name of him (to whom Posterity shall thankfully acknowledge a debt for his Work) in the very Title page is able to vindicate. If thou be'st a Caviel, yet be not too quick at censure, satisfy thy ambition for the present with a Readers place; thou mayest in time come to be a judge, which every man is not borne too. Farewell. THE CONTENTS OF the Lectures ensuing. LECT. 1. THe Name, Nature, Divisions, Consequents, causes and incidents of Advowsons' or Patronages. Fol. 1 2 The Right that both the Patron and Ordinary hath jointly to intermeddle with the Church. fol. 10 3 The several Interests of the Patron and Ordinary, and what it is. fol 16 4 What manner of Inheritance an Advowson is. fol. 19 5 The word Right, and the word Advowson explained, and to what Inheritance an Advowson may be appendent originally. fol. 24 6 To what things an Advowson may be appendent secondarily. fol 30 7 In what manner Advowsons' are appendent to a Manor. fol. 35 8 If an Advowson appendent, that consists of Demesnes and Services, shall be appendent in respect of the Demesnes only, or in respect of the Demesnes and Services. fol. 42 9 How an Advowson may be severed from the principal, and by what means it may be reconnexed thereunto again. fol. 47 10 Of Advowsons' in Grosse. fol 54 11 Of Advowsons' pattly appendent, partly in Grosse. fol. 58 12 What Presentation is and what is the effect and fruit thereof, and in what manner Presentation and Nomination differ. fol 62 13 The things incident to Presentation prosecuted, who may present, what Parsons may be presented, to whom the Presentation must be made, and the manner thereof. fol. 70 14 The two first particular causes of Avoidance of Churches, v. z. Is either Temporal, as Death; or Spiritual, as Deprivation; the one of itself being manifest, and the other a discharge of the Dignity or Ministry. fol. 73 15 The third particular cause of Avoidance, being Spiritual, is Resignation. fol. 78 16 The last special means in Avoidance of Spiritual promotions Presentative, is Creation. fol. 86 A COMPLETE PARSON: OR, A DESCRIPTION OF ADVOWSONS. LECT. 1. The name, nature, Divisions, Consequents, causes and incidents of Advowsons' or Patronages. FOrasmuch as we are said to know, cum Causas cognoscimus, and seeing he laboureth in vain, that seeketh to apprehend the knowledge of the accident, which is ignorant 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, Tull: Offi●. lib. 1. institutio, debet à definitione proficisci, ut intelligatur quid sit id de quo disputatur: I will begin as good order requireth, with the Description of an Advowson, that the nature thereof being known, we may the better observe, the coherence and congruence of this kind of Learning. An Advowson therefore generally considered, Quid. is a right that a man hath, to prefer his friend, or any fit person, to promotion Presentative, or Donative. This Definition is general, and may be attributed to all persons, whereof a man may have a Quare Imp: if he be Disturbed; for, the Writs mentioned in the Statute, lieth not only of Dignities Presentative by the course of the Common Law, but also of promotions Donative by this Statute: As Chaunteries Donative, * Free chapels, etc. Also it lieth, of a Fitzh. N. Br. 30. Ibid. 33. a. 31. E. Ib. 34. 9 E. Subdeaconship, or Hermitage, which also may be Donative, and this is grounded upon the words of the Statute, De cetero concedantur brevia de Cappillis, Prebendis, Vicarijs, Hospitalibus, 14. H. 3. Fetzh. quare Imp. 183. Abbatis quae prius concedi non consueverunt; Yet nevertheless, I read that a Quare Imp: was maintained of a Chapel, by the Common Law, but such a Chapel (perchance) was Presentative, and not Donative. Promotions presentative (whereof the Writs are mentioned in the Statute) were maintained at the Common Law; as Churches, Chaunteries, and Chapels Presentative, and such like. And therefore as the afore-specified Definition, or Description is general, and appliable to both: So are those subsequent, more properly to be applied to Churches Advowsons', in which are Cures of Souls. An Advowson, or as the term, Ius Patronatus Summa ho●stènsis d● jure patrono. Summa Anglse eod. tit. Summa Siluestrinae tit. Patronatus. est potestas presentandi aliquem instituendum ad beneficium 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, & utile. In effect this: A Patronage, or an Advowson, is a right to present to the Bishops or Ordinary a fit person, by him to be admitted and Instituted into a Spiritual Benefice when it becometh void: And he that hath such right to present, is called Patron: who is thus described, Patronus est defensor Ecclesiae, qui habet ius presentandi Episcopo aliquem vel aliquos in aliqua Ecclesia & in ea ab eo instituatur. And he is so called, De patrocinio, of defence: For that, that he should defend the Church, or à similitudine Patris, quia sicut pater filium, sic patronus Ecclesiam, de non esse, deducit ad esse. He is called of Old Glanvile, Advocatus; as that he should say, an Advocate of the causes of the Church, and therefore the inheritance is called Advocatio, or Advowson, or is devised De vocando: for that, that the Patron hath power, for the presentment of a fit person, by the name of his presentation. And here by the way, let no man think, that I thrust myself in messem alienam, and to borrow of the Canonists, as well now the Description and Etymology before showed, and after also, to fetch from them more high matter. But let such curious Carpers, (if any be) remember the Speech of Asliton, * who affirmeth, that every Advowson, and 34. H. 6. 40 v. Asliton. right of Patronage, dependeth upon two Laws, that is to say; The Law of holy Church, and our Laws, so that the true determination of such learning, is as he saith; Per ius mixtum, by both Laws; that is, Ecclesiastical, and Temporal: And therefore, when we purpose to seek the right intelligence, or true understanding of any things in this kind of learning, we must of necessity be beholden to them. But to return where we digressed. The material causes and subjects, in which this learning dependeth, are the things before mentioned. As Churches, Chaunteries, and Chapels presentative, and such like. Churches are of three sorts Cathedral, Collegiall, and Patrochiall. A Cathedral Church, is the seat or Church of a Bishop, and therefore he only may be said Incumbent thereof. Collegiall or Conuentuall Churches, are such, as in times past, have been in Priories; Abbeys, or such like, and are still in Colleges. Patrochial Churches, are well known, and johan. Bellonius de et imologijs. are those, Ad quem plebs convenit ad percipienda Sacramenta Baptismatis & Corporis Christi unde pabulum ad animas sustentandas libere suscipiunt, for the Incumbent thereof, is only charged with the cure of Souls. And it is commonly called by the name of rectory, which is into two sorts divided, being either a Parsonage, or a Vicarage. And so much 34. E. 3. Fitzh. Qu. Imp. 187. briefly, for the name, matter, and substance of Advowsons'. The former cause or manner of this Inheritance, yieldeth forth the usual and ordinary distinctions of Advowsons', to be either appendent, or in gross, or part appendent, part in gross, either for a certain time, or in respect of certain persons. The efficient Causes of a Parsonage, are 1. Ratione Dotationis. 2. Ratione Fundationis. 3. Ratione Fundi. Ratione Dotationis, is, when he, or those from whom he derives his interest, endowed the same Church. Ratione Fundationis, is, when he or his Ancestors, or those from whom he claims his interest, were founders of the same Church. Ratione Fundi, is, when the Church was built upon his or their Land, from whom he derives his interest; or all three together, as appear by the verse, used amongst the Canonists. Patronum faciunt does, edificatio, fundus. The usual cause or causes, why Patronages ●●●ma hostieus. ti●. ius Patronas. of Churches are given by the Law, and bestowed upon Laymen; is, and were, Vt inducantur laici ad fundationem, constructionem, & Desetionem Ecclesia. The fruit and effect of a Parsonage, consisteth in those three things Honos. Onus, & Vtilitas. The Honour attributed to a Patron, consisteth I. Honos in his right of presentment. In the discourse whereof, I shall afterward consider, what is required, before the same can be attempted: then what the nature of presentation is; and lastly, what is required for the making of a full and perfect Incumbent. Before the presentation can be lawfully made, it is meet that the Church become void, and of avoidance, our Law taketh notice, the same being triable thereby. The manner and means how an Avoidance groweth, is either Temporal, or Spiritual. 1 Temporal, by the Death of the Incumbent. 2 Spiritual, and this is in diverse manners; that is to say, by Resignation, Deprivation, Creation, session, and entry into Religion. As touching presentation, we are to see; first, what it is, than who shall present, afterwards what person may be presented, and last of all in what manner the same must be done. Those things, that are required to make a perfect Incumbent, after the presentation had, dependeth upon the Duty of the Ordinary; As first, Admission, which requireth examination of the Clerk, whereupon sometime ensueth a refusal, and thereupon, either notice, or no notice (as the case requireth) is to be given to the patron. If the Clerk be admitted, then, he must be instituted, we are then to see, what Institution is, and what is the effect thereof, upon which ought to ensue Induction thereinto, likewise we must see, what it is, by whom it is to be performed, and what it doth import. If the Patron be remiss, and doth not present within the time limited, then incurreth the laps of the Patron, to the Bishop, and from the Bishop, to the Metropolitan, and from him to the Crown, where it resteth, but if the Bishop take his time, then is his presentation a Collation, and in the right of the patron himself. 2 The second effect of a personage, (which is Onus. Onus,) resteth only in the defence of the Church's possessions, to which the Patron and Ordinary by aid prayer, are to be called by the Incumbent, for the defence of the same, to avoid such charges and encumbrances, as are unduly laid thereupon. 3 As touching the third, which is Utility, we Vtilitas. have not any thing to do with it, in our law, but we must leave the Consideration thereof, to the Cannon law, for this Utility is employed for the sustentation of the patron; for if he or his posterity being patrons do fall to decay, than the incumbent of the fruits of the Church by compulsory Censure, of the Ordinary, according to that law, is to be enforced to make Contribution to them. All writs concerning this kind of Inheritance Brevia. are either given to the patron, or Incumbent. Writs given to the Patron are of two sorts, for either he demandeth his inheritance, or presentation, against the possessor, of the patronage, or he attempts suit against the Ordinary, for either not doing, or doing his Duty unduly. In every action brought against him that pretendeth possession, it is to be intended, that either he is lawfully or unlawfully possessed. The unlawful possessor, is the usurper, against whom only lieth three Writs, which the Statute speaketh of, namely; One of the right, as the writ of right of Advowson, and the other two of the possession, as a Quare Imp: and Darraigne presentment. Against the lawful possessor, lieth the writ 33. H. 6. 34 b. & 35 a. act. of Dower, for the wife of him that Died seized of such estate as she might ●e endowed of, and a Cessavit of the land against the Tenant. But no Formedon lieth for the issue in tail 13. E. 3. 15. b. 33. H. 6. 33. a. 5. H. 7. 36. b. 37. a. Fitz●. 1● br. 217. b. in Discender, nor for any in the remainder, nor for the Donor in the re●●rter; for that, that if the Advowson be in gross it cannot properly be discontinued, and being appendent it is to be recontinued by the same means, that the land to which it is appendent, is to be recovered. The Incumbent as touching his right for his rectory, hath the only Writ of juris vtrun●, and for his possession, any other possessarie action. For if another happen (during his presentation) to be presented by the same Patron, or do come into the same Church, by course of the Law, so that the patronage cometh into Debate, their lieth a spoliation, it being a suit in the Spiritual Court, LECT. 2. The Right that both the Patron and Ordinary hath jointly to intermeddle with the Church. IN the former Lecture or Reading, having delivered in the project, a Discourse of Advowsons', briefly discovering their Name, nature, Divisions, consequents, causes, effects and Incidents of the Patronage: Now it remaineth in like manner to prosecute every of those parts, than but pointed at, with a more large and ample explication. First therefore, it is to be considered, that in every Benefice three persons have interest. That is to say, the Parson hath a Spiritual possession. 12. H. 8. 7. b. per Pollyard. The Ordinary to see the Cure served; And the Patron hath Ius presentandi. Hence it is that I have said, that a Patronage is a right of presentation; therefore it is called, Ius Patronatus; not a power, nor an authority only, but a right, interest, or an Inheritance: The word Ius or Right, is diversely intended, Com. 284. a sometimes strictly, to signify what is left a man, when that, that was once his own is wrongfully Com. 487. b taken from him, as by Disseisin or such like. In which sense, the word Droit and Tort, are Bracton Jus. privatè opposita, and is thus divided; to be either right of Action, or right of Entry; sometimes, in a more ample signification, as Ius habendi, ius possessendi, ius disponendi, by which occasion I purpose at this time to discuss, whether the Patron and Ordinary have right in the rectory or Benefice, and what manner of right it is that they have; their right is called Collateral, as we read, and not Habendi, nor possessendi, nor retinendi; for none of them, can have, retain, or possess the Church or rectory, but their right is, Ius Disponendi, wherein every of them hath a particular Charge to the possessions of the Church, so free as that he may maintain such a one as is thereinto to be presented. That they have a kind of Disposition in them, it 2. H. 7. 36. Ratio 1. is proved by many reasons: 1. No charge can be founded to be laid upon the Church in perpetuity, to bind their successors, but the Patron and Ordinary must be made parties thereunto as all our books agree, and Litleton gives a notable reason for it. Which is, that if the Charge be perpetual, the consent of all 3. ought to concur, of which ensueth thus much, that if a writ of annuity be brought against the parson, and he prayeth in aid of the Patron and Ordinary and the Patron maketh default, and the Ordinary appeareth, and confesseth the action; or if the Ordinary 12. H. 8. 7. b make default, and the Patron appear, and confesseth the action, that this annuity shall not bind the successor: but if they both appear and one of them confess the action, and the other faith not any thing, it shall bind the rectory in perpetuity. For Qui tacet consentire videtur. But if the Parson only with the consent of the Ordinary for Tithes or other consideration executory, charge the Church in perpetuity, it shall be good, without the consent of the Patron, as well as if the consideration executory had remained. Secondly it followeth, that the charge of the Parson, Patron and Ordinary, shall bind in like manner as their interest is. But if a man have an Advowson for years, and the Parson by the consent of such Patron and Ordinary, grant rend charge in fee, if the Parson dye within the term, & the termor of the Advowson presents another, & the term expireth, Quere if than the Anuity shall be delivered, but it seemeth by some that it shall be delivered; for that, that this Incumbent was not the party, that made the grant, and therefore he should not hold it charged any longer, then during the interest of the Patron. And therefore if two joint-tenants in common, or parceners be of an Advowson, who agreeth to present by turn, if the person join in grant of a rend charge in fee, with one of them, the Parson shall be charged and also his successors (alterius vicibus) for ever; because, those successors (that cometh in) by him that made the Charge, shall be subject to it only, and those that cometh in by the presentation of the Patron, that neither joined nor confirmed, the same shall hold their land discharged for ever. Also, such annuity with which the rectory is charged, doth not properly charge the Land but the Parson; for, if the grantee enter into any part of the Gleebe, he shall not suspend the rent or annuity. And if the Parson, Patron, and Ordinary, join in a grant of an annuity to S. H. and his heirs, except they speak of the successors of the parson, and that the same be granted for the parson and his successors, this cannot be good longer than forth time, that the parson that granted the same, continueth Parson; for an annuity is nothing but a parsonal Duty, and no otherwise. And if such an annuity be 21. H. 7. 4. ae granted over, it is not needful to have Atturnment; all which proveth, that the same chargeth not the Land, but the Parson; yet nevertheless, the parson is charge, for if the Grantor assign or be removed by any means whatsoever, the charge followeth not his parson, but resteth upon his Successors, and the jury may be taken of the Town where the Church is, which proveth that such grant chargeth the parson in respect of the Land. Moreover, when the Patron and Ordinary, confirmeth the grant of the Parson, it is requisite that the Confirmation be made, during such time, as he is Incumbent that made the Charge; for if he Die, be removed, resigue, or otherwise be deptived before the confirmation, such Confirmation is void notwithstanding. If an Incumbent grant rend charge, to begin after his Death out of his rectory, and the Patron and Ordinary confirmeth the same, this is good for so long time as it is granted. The second principal Reason, to prove the Ratio, 2. interest they have to the Church or rectory, is, 31, ●. 3. Grant 90, annuity 53. that all three may charge the Church in perpetuity, so may the Patron and Ordinary do only in time of vacation, which charge shall bind the Successor for ever. Because none hath intermeddling with the rectory, but the Grauntors aforesaid. The third principal reason; is this, that as the Ratio, 3. Patron and Ordinary in time of vacation, may Fitzh. Release, 57 ●ur ven. 6. 33. aid ●● Roie, 103. charge the Church in perpotuitie, so they may make a release, by which any annuity that chargeth the Church or rectory shall be extinguished, even in the time of vacation. Also, if a man hath an annuity out of the 7. H. 6. 38. b 8. H. 6. 24. Church of S. and afterward this Church is united to the Church of D. and after the united Church becomes void, if the Grantee release in 21. H. 7. 44 time of vacation to the Patron, that was patron of the other Church; that is to say, of D. and to the Ordinary, 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 united and become one, yet are their patronages distinct and several; moreover, that Interest, that the Patron and Ordinary hath in the Rectory, is but Collateral and ius disponendi, and no otherwise, as hath been formerly said. For if an Advowson descend to an Infant, and the Incumbent be impleaded in a writ of annuity, and prayeth aid of the Patron and Ordinary, and for that, that the patron is within age, likewise prayeth that the Parol may demur undiscussed during his nonage, this shall not be granted; but the In●ant in such case shall be ousted of his age, because the charge lieth upon the parson, and not upon the patron, or Ordinary, who are not at any time to enjoy the 7. H. 4. 16. ● Rectory themselves, but only are to have the disposition thereof. Finally, to prove that it is merely Collateral: If the patron & Ordinary do nothing but give licence to the person to charge his Rectory with an annuity, this shall be a good grant to Charge the Church in perpetuity. For that, that it is not to any other free tenants a Charge, but to the parson; because neither the patron, nor 11. H. 5. ●. 8▪ b. 14. H. 8. 31. ●. the Ordinary can have the Church themselves, but only to dispose and bestow the same, upon some other; nevertheless, such assent ought to be by writing. LECT. 3. The several Interests of the Patron and Ordinary, and what it is. IN the Lecture next before, I have ●et forth to you the right that both the Patron and Ordinary hath jointly to intermeddle in the Church; Now it remains, likewise that I declare their several Interests: Therefore at this present, I intent to deliver something touching the Collateral Interest of the Patron sole, and after to examine, what manner of Inheritance an Advowson is, and so to refetre the Interest of the Ordinary sole to a more convenient place when as we shall come to speak of Admission and Institution. What Collateral Interest alone, the Patron hath in the Church, may in brie●e thus be deciphered; first, by the Common Law, (before the Statute of Westminster second,) as he ought▪ by the opinion of some men, to bring his writ of Advowson, of the fifth part or any less part of the Tithes and oblations of the Church in any suit of judicavit, attempted against the Presentee, or Fitzh. 30. b Incumbent, that hath sued in the Spiritual Court for the Recovery of the same, and hath caused the Patronage in this respect, to come into question, or as some men think he might have had his Writ of Heres, as a Praecipe quod reddat 38▪ ●. 6, 20 a. Per Por●escue. advocationem quinque acrarum terrae, or one acre of Land and such like; For which cause the Statute was made, to be a restraint for bringing the same writ, of any less part than of the fourth part of their Tithes; so that the Statute in this behalf, was but a restraint of the Common Law: Which argueth, that the comparing of the rectory, tendeth Collaterally to be an impeachment and prejudice to the Patron himself, and so importeth a Collateral Interest that the Patron hath to the Church. Again, by the grant of the Church the Advowson passeth; wherefore Herle said in the first part of Ed. 3. That it was not long since, when men knew not Com. 157. ● what an Advowson was nor meant, but by the Grant of the Church, they thought the Advowson to be sufficiently conveyed in the Law; For, said he, when they purposed to assure an Advowson, their Charter specified it in the gui●● of the Church. Moreover, the King being Patron, hath often ratified and confirmed the estate of the Incumbent 45. E. 3. 19 b in a rectory, that an usurper had presented; 32. H. 6. 3● a. 7. H. ●. 13, b. by means whereof, he cannot remove the same Incumbent, unless for some cause he repeal his Charter of confirmation. Notwithstanding, if the King recover by a Quare Imp: and after confirmeth the estate of the Incumbent, that the usurper presented, by Fitzh. fol. 34. f. 9 E. 3 means whereof, he cannot be removed; at the next Avoidance the King shall present, for the Judgement given for him was not at any time executed, which also proveth the Collateral Interest, that the Patron hath to the Church; for no parsons can lawfully confirm, but such as have right to the thing confirmed. Ancient Books have held, and that not without 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 reason; That an Advowson hath such an affinity with the Church itself, to which it is granted, and to which it is a Collateral Interest (as hath been said) that it should pass by Livery of seism, made at the Ring of the Door of the Church; and although by such means it pass not at this day, being merely a thing that lieth in Grant; yet the same proveth the Collateral Interest of the Patron to the Church; for this opinion holden in the Books, is granted for the like reasons. In a Writ of right of Advowson, the Parson 33. H. 6. 34. b. shall be summoned in the Church, or at the door of the Church; And if a villeine purchase an Advowson in gross, (Littleton saith) full of an Incumbent, the Lord of the same villain may come to the same Church and their claim, and the Advowson shall be in him; All which things added to the former, sufficiently proveth the Collateral Interest that the Patron hath to the Church. LECT. 4. What manner of Inheritance an Advowson is. lecture 4 WE are now to consider, what manner of Inheritance an Advowson is; wherefore, let us consider, that every Inheritance, is either: Hereditas Corporata, or Incorporata. Hereditas corporata, is a Meadow, Message, Com. 176. v Land, pasture, Rents, etc. that hath substance in themselves, and may continue for ever. Hereditas incorporata is, Advowsons', Villeins, Ways, Commons, Courts, Piscaries, etc. which are and may be appendent or appurtenant to Inheritances Corporate. An Advowson therefore is Incorporate, of which a man may be Seisied, though not of Demesne, yet as of Fee, and as of right. And although great Disputation have been 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. in our books, whether an Advowson may be holden or lie in tenure, yet the most authorities concurreth and are, that any Advowson either in gross or appendent, lieth in tenure, aswell of a Common person, as of the King. For a Cessavit lieth thereof, and some have holden that the Lord of whom it was holden may distrain (either in the Church yard, or in the Gleebe) the beasts of the Patron only. if they happen to 33, H 6. 35 b. 5. H. 7. 37, b. 15. H 8. a. be there found, 33. H. 6. Godred contrary: but though the law be, that there cannot be taken any distress, yet the same makes not any impeachment of the tenure, and being parcel of a Manor or appendent to it; it may be holden as some books are, pro particula illa. Therefore it is holden and said, that an Advowson is a tenement, and therefore whereas the King hath given licence to an Abbot to amortise 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 book an issue was taken, if the same Advowson were holden in 5. H. 7, 37. On. 38, b. Capitie; and therefore, 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 praecipe quod reddat. lieth very well, and a writ of Dower shall be maintained 20. E. 4. 15, b of the same, by the wives of such as have such inheritance therein as giveth a dower, as before hath been said, and so the husband of 5. H. 7, 38. 15. H. 7. 8 a. 7 E, 4 6. Fitzh. 29 3, 1 49. d 3. H 7. 5, a. her that hath the'nheritance in it shall be tenant by the Courtesy, although there never were had any presentation by the wise to it. But yet there shall not be any descent thereof, from the Brother to the Sister, of the entire blood, by the maxim of possessio fratris, etc. But the same shall descend to the brother of the half blood; unless, the first have presented to it in his life time, but if he have presented in his life-time, 19 E. 2. Fitzh. Qu. Imp. 177. than it shall descend to the next heir of the entire blood. In Advowson is an inheritance and cannot be divided into parts or parcels, for in a writ of right of Advouson; if the tenant say, that the demandant is seized of the sixth part of the Advowson, this shall abate the whole writ, and yet part thereof may be in some sort considered, for there is an usual difference taken, between Advocatio medietatis Ecclesiae, and medietas Advotionis Ecclesiae. For Advocatio medietatis Ecclesiae, is where two Patrons be, and every of them having right to present a several Incumbent to the Bishop, to be Admitted into one and the same Church, for diverse may be several parsons, and have care of Souls in one Parish, and such Advowson is Fitzh. 3. b. 32. H. 6. 11 b. 14 H, 6. 15, b. Fitzh. 30. v. a like in every of those Patrons, but every of their presentments is to the moiety of the same Church; and therefore it is called Advocatio medietatis Ecclesiae, or as the cause saleth out, advocatio tertiae partis Ecclesiae, and the like. But Medietas advocationis Ecclesiae, is after pertition 7, E. 3. 30, b Fitzh, 31. b. 14, H. 6, 15, b. 33, H 6, 11, b. 5, H, 7, 7, b. between perceners, for although the Advowson be entire, amongst them, yet any of them being disturbed to present at his turn shall have the writ of Medietate, or of Tertia, or of Quarta parte Advocationis Ecclesiae, as the case lieth. Also, if two Patrons of several Churches make 14▪ H. 6 15 b, Fitzh, 11 br, 39 union; or confederation, of their Churches by the assent of all those whose consent is requisite, the patronage of every of them shall not be but medietas Advocationis Ecclesiae; because, but one Incumbent is only in this case to be presented, and not Advocatio medietatis Ecclesiae. And this Difference is only taken and observed in the writ of Right, which is altogether grounded upon the right of Patronage. But in the Quare Impedit, which is only to recover Damages, no such diversity is considered, but the writ is general, Presentare ad Ecclesiam. Lastly, it is to be considered, what temporal profits, value or Commodity, this kind of Inheritance is reputed to be of: It is not by the Law of God, to be bestowed upon any Incumbent 29, E, 3, 5. b. 9, H, 6. 57, a, 32, H, 6, 22▪ a. for any need or price; but only reserved for such as are worthy thereof. And therefore it is said; * That Guardian in Socage of an Infant, shall not present to any Aduowson; because 5▪ H 7, 36. a▪ 37, b, 12. H▪ 8, a. such presentation, is not to be bestowed for price; for that, that such Guardian cannot account for the same, yet nevertheless, because the Patron thereby may advance his friend, it hath been often esteemed for Assets in Formedon. And as the value thereof may come in question, 8, E, 3. Fitzh, recovery in value 11, & 9 as in a writ of right of Advowson, where the tenant avoucheth, and the vouchee looseth, the tenant shall recover in value against the vouchee, for every Mark that the Church is worth per Annum, xii. d. So that the thing which of itself is not valuable, is by a secondary means made and esteemed valuable; because that otherwise, this mischief should ensue thereof, which should be a loss without recompense. 1. By this it appeareth, that it is an Inheritance Incorporate. 2. That it lieth in Tenure. 3. That it passeth by the name of Tenement. 4. That a precipi quod reddat lieth thereof. 5. That both tenant in Dower, and tenant by the courtesy, and in some case a Possessio ●ratris, may be thereof. 6. That it is entire by nature, though by accidental means otherwise, and in some respect devisable. 7. Though it be bestowed gratis, yet it is valuable, for which it is a benefit to advance a friend, and for being injured therein we shall recover damages. LECT. 5. The word Right, and the word Advowson explained, and to what Inheritance an Advowson may be appeudant originally. IT resteth at this present, for the more ample explication of this word Right, (whereas in defining an Advowson, we say it ●●keth a R●g●●) to set forth the d●●●sions of Advowsons', and to prosecute every part divided with a ●ull Discourse; that thereby, what manner of right and inheritance an Advowson is, may be the better perceived. Advowsons' therefore, are either appendent or in gross, or part appendent part in gross. An Advowson appendent, is a right of Patronage, appertaining to some corporal Inheritance; so that, he that hath the same Inheritance, is thereby also entitled to have the other as annexed to the same; For an Advowson 33 H, 6. 4. Lit. 20, E. passeth always with the Inheritance, to which it is appendent; unless, there be express nomination 4. 15, a. 8, H. 7▪ 4▪ b. only by these words (una cum pertinentijs,) except it be in case of the King, where the Statute De prerogativa Regis, cap. 15. provideth express words to make the same to pass. The original of Advowsons' appendent at the beginning must be in this manner, sythenc● Patronages were won and gotten as before hath been declared; and that either ratione fundati●nis Com. 161▪ ● dotationis or fundi, were (as it seemeth by all conformity of reason) the original foundations of Advowsons' appendent; for when Manors were created, either the land upon which the Church was built was land parcel of the Manor, or honour to which it is appendent, and he that was Donor thereof, gave the same to build the Church upon, and that the Advowson of the same Church so built, should be appendent to the same Manor, which is ratione 5. H. 7. 6. fundi. Or he that was owner of the same Manor or of any such corporal Inheritance, endowed the same Church with parcel of the land of the same Manor, honour, or such like corporal Inheritance, and gave the same to the Gleebe, of such Church upon which the Advowson by ordinance of the Ordinary, and by the consent and agreement of all others, whose consents were requisite in this behalf, was at the beginning appointed to be appendent to such Manor, Honour, or other corporal Inheritance, in recompense of such lively hood, and dotation bestowed upon the Church. And hereof it ensueth, that if at any time the 5. ●. 7▪ 37. a. 13. a▪ 11▪ E. 4. 11. v. 2● E. 4. 15▪ b. Church be desolved, the Gleebe and land upon which the Church was built, shall return and escheat to him or them from whom it was derived and deduced. As in like case, upon the dissolution of an Abbey, Fitzh, 33. k the same shall not return to the sounder of common right, unless some other ordinance be made to encounter the same. 1. Therefore to avoid confusion in the consideration of Advowsons' appendent; let us first see, to what sort of Inheritance Advowsons' may be properly appendent. 2 Secondly, in what manner it is appendent, (that is) if it be part or parcel of the Inheritance to which it is appendent, or if as accident or necessary thereunto. 3 How it may be severed from his principal; and again, by what means it may be thereunto recontinued again. As to the first, it may be appendent properly ●. and originally, to things that are only Inheritances corporal, that are compound; As to an Honour, Earldom, or such like; likewise, to a 10. H. 7. 19 Castle, more usually to a Manor; all which principal things, that is to say, the Earldom, Honour, Castle and Manor, etc. are Inheritances compound, made and combined of diverse things, and in nature different, being those which the Logicians call Tota Intigratia. It may be appendent to an Acre of Land, or to a Message, to a rectory, Parsonage, Church or such like; And so one Church may be appendent to another, of which we shall take occasion to speak in the Lectures following. But at this present, let us see in what sort it may be appendent to a Manor. Advowson that lieth in one County, may be 33. H. 6▪ 4. b. lib. ult. appendent to a Manor that lieth in another Count●e; And how two or more Advowsons' 34. ●. 3. Quare ●●p. Fitzh, 10. may be appendent to one Manor, may be manifested thus. If he that in Ancient time was seisied of a Manor, that extended so large as it was divided into diverse Parishes, the Lord of the same Manor, either gave out of the same Manor land to build, or to endow every of the Churches, and so every of them might be appendent to the same Manor. How one Advowson may be appendent to two Manors, may likewise thus appear. Suppose that A. be Seisied of an Advowson of the Church of Dale, as appendent to the Manor of Sale, and that both those Churches by the Ordinary, and by the consent of both 9 E. 6. 5. 9 b. 20. Dyer. the Patrons be united, and called the Church of Dale, and ordained that the Patrons shall present by turn for ever; these Churches by this union and confederation are made one, and so the Advowson entire, and no moities as is between Coperceners, joint-tenants, and tenants in common; and therefore it is appendent to both Manors, for the Patrons severally presenting▪ shall present to the same Church as appendent to both Manors, (that is to say) the one shall present severally to the Church as to his Manor of Dale, and the other also shall present thereto when his turn cometh, as appendent to the Manor of Sale. Yet some are of opinion, and some authorities there are, that each of the same Patrons after 14 H. 6. 25 b. Fitzh. 39 the same union, is seisied De medietate Advocationis Ecclesiae. And in what manner soever the same Advowson be entire, yet is the Parson's interest several; For if such Incumbent, which is presented after such union made, grant a rend charge out of the Gleebe, and one of the Patrons only confirm, no Distress (after the Death of the Incumbent that granted the rent) can be taken upon the Gleebe, that belongeth to the Gleebe of the other Patron, to make the same subject to the charge in perpetuity; for that, that he confirmed not. But if the Manor of Dale, be holden of the ●2. H. 6. 64. b. Manor of Sale, and to the Manor of Dale is an Advowson appendent, and that the Manor of Dale hath Escheated to the Manor of Sale, so that the Demeans of the one is become parcel of the Demeans of the other; yet the Advowson shall be still said appendent to the Manor of Dale, as it was at the first; And the Manor of Dale shall continue still in reputation ● Manor, in respect of such things as are appendent thereunto. The moiety of an Advowson may be appendent 33. H. 6. 11 12. a. to a Manor, or parcel of a Manor. Also, in the pleading of a case in Ed. 6. by 6, ●. 6. 74. b 44. Dyer. Dyer, it appeareth that one fourth part of an Advowson was alleged to be appendent to the one moiety of a Manor, and another fourth part of the same Advowson was appendent to the other moiety of the same Manor, and the other two parts were in gross: yet nevertheless an Advowson (in every such or the like cases) cannot be said to be divided properly, for that, that it is entire, if you respect the presentation and not the right of Patronage. For if a man hath an Advowson and giveth one part thereof to A. and the other part to B. & one third part to C. yet the Advowson remaineth entire amongst them, and if any of them disturb his companions they are without remedy, for that they ought to join in a Quare Impedit, because the presentation is a parsonal thing, and entire, wherein they ought to agree, but seek how they can sever in these causes in a writ of Advowson. Moreover, as touching the right of Patronage, if one bring a writ of right of Advowson, and the tenant pleadeth that the demandant is seisied of one sixth part, or of some one part of the Advowson, the entire writ shall abate, notwithstanding if it be in bar but for parcel, because cause the Advowson is entire, and not several, by reason whereof the demandant cannot abridge his demand. And as in the ●ases aforesaid it hath appeared, 18, E. 3, ●5. that ●● Advowson of a Church may be ap 〈…〉 ●o a Manor, in like manner may the 〈…〉 wson of a Priory be appendent to a 〈…〉▪ LECT. 6. To what things an Advowson may be appendent secondarily. IN the Lectures aforesaid, was showed, to what sort of Inheritances an Advowson may be appendent originally; Now it remaineth ●o show to what things it may be appendent secondarily. An Advowson therefore cannot be appendent 41, H. 4. Fitzh. 88 33. H. 6. 5. a. fine. to one Acre of land, or two acres, but only to such parcels of land as have been parcel of a Manor, or parcel of any Earldom, Castle, or such like Inheritance, to which an Advowson may be appendent originally; But in what order the same may be appendent to one Acre, 5. H. 7. 10. a Fitzh. feofments and feof. 115. let us consider; some be of opinion, that if a man be seisied of a Manor to which an Advowson is appendent, giveth certain acres of the same Manor, una cum Advocatione to another, in such case the Advowson shall not pass, to the grantee, unless the same be by Deed, and so the same shallbe appendent to the same Acres. So likewise, some hold opinion, that if a man 17. E. 3. 45 18, 19, 21, 22. E. 3. 6. b 7. a. Thorpe. be seisied of a Manor, to which an Advowson is appendent in right of his wife or jointly with his wife, and maketh a seofement in fee of certain acres parcel of the demeans of the same Manor una 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 think) the same Advowson is not appendent to the same Acres, and such alienation is not but during the life of the Husband. Nevertheless, I do not perceive any great Fitzh. 32▪ ● reason, why the Law should be so in such a case; for if a tenant in tail of a Manor, to which an Advowson is appendent alien some of the same Acres parcel of the Manor, together with the Advowson, although it be without Deed, notwithstanding it is appendent to the Acres, and cannot be recontinued but by Formedon to be 43▪ E. 3. 26. b or. v. Thorp. brought for the same Acres, which case in reason, being like to the Formedon of the Acres and Advowson aliened by the husband, I know not any difference of Law that should be between them; And therefore, if a man be seisied of a Manor to which an Advowson is appendent and make a lease for life of the same Manor, una cum advocatione, if the lessor enter into 17. E. 5. a. Mombray the same Acre of land for forfeiture, he hath recontinued the Advowson, as appendent to the same Acre. An Advowson cannot Originally be appendent Com. 170. b. 16, H. 7, 13 b▪ &. 9, b. to a Message, but Secondarily it may; therefore if an Advowson be appendent to a parcel of land, which was sometimes part of the demesnes of a Manor and suchlike, if a Message be built upon the same parcel of land, the Advowson shall be appendent to the same Message, and if the same Message fall or be pulled down, the same Advowson shall be again appendent to the Soil, as it was before. So likewise, an Advowson may by a secondary 17, E, 3, 51▪ ● 20. E. 4. 6. b. 11, H 6. 32. b means be appendent to a Rectory, for Vicaridges being not first erected (in as much as the Substitute cannot be before the principal) but 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. all at the beginning were Parsonages, of the which Vicaridges were derived, and that for the most part, by the reason of many Impropriations of benefices, to the houses of Religion, and Spiritual corporations, which were not of themselves in all points fit for the function and cure of souls. The reason is, because that the Advowson of a Vicarage should be always appendent 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 Vicarage, of the same Church; except, some other several ordinance at the beginning of the endowment of the same Vicarage were made to the contrary. And therefore, by the grant of a Parsonage 2. E. 3. Grants, 89. & 56, Dyer 35, 7, E. 4. 61. a, 75, a: with all the hereditaments thereto belonging, the Advowson of a Vicarage passeth to the Grantee. In the same manner it should be, if the Vicarage were endowed, so there be a Pa●son 11. H, 6, 18 a. & 32. b. 17. E. 3. 51. ● and a Vicar both presented into one Church, as by the Law there may well be; but if the Vicarage become void, and he that is Parson having the Advowson of the Vicarage (as of common right he ought) present one to the same Vicarage by the name of Parson, who is admitted and Instituted▪ accordingly, 11. H, 6. 18 & 32. b. ● by such presentation hath the same Vicarage lost the aforesaid name, and is becomed a Parsonage, tamen querae if the first Parsonage remain, and if one of those parsonages (if they both continue) be appendent to the other; but 11▪ H. 6. 18 & 22. it seemeth by the Book of 11. H. 6. that there should be but one Parsonage, and the Vicarage extinct. An Advowson of a Church or Chapel, 8, H. 7, 16. Com. 169, b cannot originally be appendent to another Church or Chapel; for that, that things of one nature cannot be originally appendent each to other. But notwithstanding, secondarily the Advowson of a Church or Chapel may be appendent to another Church or Chapel. As if the Advowson of a Church or Chapel 43, E, 3. 30 a. Fitzh. Qu. I 〈…〉 p. 13 be appendent to one Acre of land, that was sometimes parcel of a Manor, or such like; and after a Church or Chapel be built upon it, the last new erected Church shall be appendent to the aforesaid Church. An Advowson may be amortified to a Church 33. E. 3. Fitzh. aid le Roy, 103. or Chapel, and if it be recovered and lost by Default, the parson thereof may have a Writ of right. And an Advowson may be parcel and part of Ibid. Fitzh. 103. a Dean●rie, and if the same be in any free-Chappell of the King, if the Deane be impleaded, he may of this have aid of the King. And thus much concerning Inheritances, to which an Advowson may be appendent. LECT. 7. In what manner Advowsons' are appendent to a Manor. NOw it resteth, that I determine in what manner Advowsons' are appendent. And first of all, if the Advowson be part or parcel of the Inheritance, to which it is appendent, and whether it be only accident or incident thereunto. Secondly, if an Advowson be appendent to a Manor, that consisteth of Demeans and services, in respect both of the demeans and services, or if it shall be said appendent to a Manor in respect only of the Demesnes, in as much as the Demesnes are one corporal Inheritance, and such part of the Manor as only lieth in manuel occupation. 1 As concerning the first, the Authorities of our Books are diveisly divided, some tending to one effect and some to another, our best course therefore is to consider the Arguments, and to give censure with that which seemeth most agreeable with Law. Some hold that an Advowson appendent to a Manor and the like, is either part or parcel of a Manor, Honour, etc. or other Inheritance to which it is appendent. And they ground themselves upon the authorities of 43 R. 3. 22. a. b. where it was adjudged that the grant that King H. the 3. made to Thenel Ratio. 1. Marshal of a Manor, to which an Advowson was appendent, without thesewords (cum pertinentijs) and without any mention of the Advowson; 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, upon which they infer; that an Advowson is parcel 22. H 6 33 lib. fund leg. 70. of a Manor, for so expressly is the opinion of others in the same book of 5. H. 7. 38. b. Secondly, in the 9 H. 6. 28. b. and in the 38. 2. Ratio. 2. H. 6, 33 a. in the Abbeys of stions case, the difference is agreed for Law, that if the King be seisied of a Manor to which an Advowson is appendent, and granteth the same Manor, and in the grant the words of the Patent are dedimus 9 H 6. ●8 or 8. b. & concessimus, the Manor of D. expressing not the Advowson in the clause of the grant, if afterward in the habendum there be, habendum cum advocatione of the Church of D. the Advowson passeth by such grant, although it be not comprehended 38. H. 6, 33 a, 39 b. in the clause of the grant; but if the King grant the Manor of D. to which no Advowson is appendent habendum cum aduacatione Ecclesiae de S. this Advowson passeth not; for that, that it is mentione● after the grant, the reason of which difference they think to be, because in the first case, the aforesaid Advowson appendent is parcel of the Manor, 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 Advowson appendent is a compound thing, to the composition whereof, diverse things are requisite, al● which things commixed, make the Manor and every of them is parcel thereof, for as Rent cannot be Land, so Land cannot be an Advowson nec econuerso, yet every of these 10. H. 7. 19 a, Keeble. things of diverse natures, make the Manor, and are parcel of the Manor, saith Keeble. And if a man demand a Manor by his Writ Ratio. 3. and an Advowson is appendent thereunto, he ought to make an exception of the Advowson, which seemeth to prove that an Advowson is parcel of a Manor, upon the other part those which affirm that an Advowson is not parcel, but only appendent to the Manor, denyeth that an Advowson lieth in Tenure; for that, that only the principal thing is holden, and not the thing appendent to such principal; As 5 H. 7. 36, a & 38, a Leates, Co●●ts, Estreates, Way●es, and the like, for (said they) if an Advowson appendent be by grant severed from the Manor, it is holden by such and the same services as it was holden by before, for that, that if the Advowson be severed it should be holden pro perticula, them the Services should be increased, and so double Services should be due for one thing, for so he should have the entire services for the Manor, and also Service for the Advowson being severed▪ which is repugnant to reason. In this variety of opinions; I think it were most conformable to reason, to say that an Advowson is not part nor parcel of a Manor, but rather appendent to a Manor, for the better entendment whereof, the Law of England calleth those sorts of Inheritances which are annexed to others, and what the Logicians call 4. E, 4, 36. b Aduncta, by these names, that is to say; Incidents, appurtenants, appendants, and regardants, of which terms of Law (Regardant) is properly of Villains, and the word (Appendent) of a Common or an Advowson; of which two an Advowson is separable, but a ●it. 184. common appendent is not in any case separable, for none can have common appendent, but he only that hath the Land to which the common 9 E. 4, 39 b 5▪ H. 7. appendent is appendent. The other two words Incidents and Appurtenances, may generally be affirmed of all those sorts of Inheritances that may in any manner be annexed to other things, for so a Manor with his appurtenances, 5. H, 7. 4. b may be intended of Advowsons', Commons, Villains, Waifes, Estrays, and the like, which are said to be Appurtenances to a Manor, likewise the word Appurtenant may be applied to a Court, Message, or Garden, that are said to be appurtenant to the Message, the word incident 21 E. 4. 32. b 19 Ass 10 properly signifieth those things annexed which are not known by the precedent names of appurtenants or appendants, and yet are notwithstanding 8. H. 7. 6. 1. E. 4 10. a. 18 H. 7 12, b 11, H. 6. 81 21. Ass. 53. annexed to other Inheritances, and in such sort a Court▪ baron is incident to a Manor, a Court of Pipowders to a fair, fealty to Homage, homage to Escuage; so likewise a Corrody is incident to a Foundership; and again, Br. incid. 34 of those some are severable, as the Corrodie from the Foundership, some are inseverable▪ as the Court-barron from the Manor, except only in case of the King, who hath power to sever them. But that is called a part or parcel, 12. E. 288. which is a portion, and required to some composition of entire and compound things, as the Demeans and services are part of a Manor, the Gleebe and the Tithes are part of the Rectory, so that these are not to be called Incidents, Appendants, Appurtenants, but parts and portions of these compound things, of which they are said to be part, parcel, or portions, and are required necessarily, to the framing of such entire thing, of which they are parts and portions, & hereof it followeth that an Advowson appendent is not any part, parcel or portion of a Manor, no more than a common is part of that thing to which it is appendent, so that the word itself of an Advowson appendent is sufficient to set forth and declare the same, to be no part but appendent only, as the words importeth, Wherefore the first reason of the adverse part 1. Reason Answered. may thus be answered. The books before mentioned namely, 43. E. 3. 22. a▪ 45. E. 3. 1●, b. 22. H. 6 33. a▪ which are to this effect, that an Advowson appendent may pass by the grant of a Manor without saying (cum pertinentijs) in the case of a Common parson, and so likewise in the case of the King before the Statute of prerogativa Regis, proveth not that an Advowson is part or parcel ●f a Manor, for this being a thing appendent may aswell pass with the words (cum pertinentijs) as the things that are parts or portions of the same entire thing passeth. For if a man grant common of Estovers to Fitzh. 181. be burnt in such a Manor, of the grantee by the grant of the Manor this common passeth, without the words cum pertinentijs for by the feoffment made of the Manor without deed, all appurtenances paste by Finchdens' opinion, 44 E▪ 3, bre, 581, 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 remembered, we 5. H, 7, 37, b. say for that, that an Advowson appendent passeth by the grant of the Manor it is no good consequence, for the reason aforesaid. The second reason answereth the difference 9, H, 6, 28, b, ●3. H. 6. 39 in H. 6. where the Advowson is granted before the habendum and where not, that it is not any proof that the Advowson appendent is parcel of the Manor, for Prysot saith, that things in 38. H. 6. 38. a. gross or several being named after the habendum, cannot pass with the first things specified in the clause of the Grant, but things appendent or appurtenant to the premises of the Grant may very well pass; although the appurtenants be specified after the habendum. As concerning the exception of an Advowson 3. Reason Answered. appendent to be made in the Demand of a Manor, the same is not any proof, that the Advowson is part of the Manor, for the opinion of Stone is, that by the Demesnes of a Manor, 19 E. 3. Fitzh. br. 884. Regist. 228. br. incid. 38. or by the Demesnes of the moiety of a Manor, (as the case is there) without the words (cum pertinentijs) the Advowson appendent cannot be recovered. LECT. 8. If an Advowson appendent that consists of Demesnes and Services, shall be appendent in respect of the Demesnes only, or in respect of the Demesnes and Services. AT this present it remaineth, to determine if an Advowson appendent to a Manor is appendent, in respect that it consiseth of Demesnes and Services; or if it shall be appendent to a Manor, in respect of the Demesnes only, in as much as the Demesnes are one corporal Inheritance, and such part of the Manor, as only lieth in manuel occupation. This question was of late time largely disputed, & at the last, upon grand deliberation learnedly determined, in the Common Pleas, in a Quare Impedit, between Gyles Long Pla●●●ffe, and one Hening Pa●●on, the Bishop of Gloucester as Ordinary, and Hadler as Clarke, and the same is there among the Rolls of Pasche 31. El. Rot. P. 39 39 Eliz. Rot. 2024. Longs case, in Com. bank: 2024. which I have set here necessarily in brief, and being thus: A Feoffment in Fee was made of the Manor of Frembillet, and the Advowson thereto belonging, and Livery of Seisin was made in the Demesnes, in anno, 7. El. and after in anno 17. of her Reign the Advowson was granted to one Ranger, and after in the 25. El. one Boyter being ●enant of the same Manor attorned to the Feoffee, than the Church became void, and if the Feoffee or the Grantee should present was the question, for the better entendment whereof, we will first see what can be said upon both pa●●s. That it is appendent only in respect of the Demesnes, tho●●●r the like authorities or reasons may be produced. It is said, that an Advowson appendent to a 5. E. 6. 70. Pl. 41. Dyer Manor, cannot be appendent to a Rent, or Service of the same Manor, but only to the Demesnes, whereof only if a man hath a Manor to which an Aduowson is appendent, and granteth the Demesnes cum pertinentijs, the Advowson pass appendent thereunto; so likewise, if he grant the Demesnes, excepting the Advowson, the Advowson is now becomed in gross. If a man should have a Manor, and black acre that was holden of the same Manor Escheateth, so that the same Acre is become now parcel of the Demesnes, of the same Manor, if he that is so seisied of the same Manor, grant all the Demesnes, excepting black Acre, and the same Advowson, the Advowson is become in gross, and yet it is a Manor notwithstanding, for now black acre is only the Demesnes which together with the other services cause the Manor to continue, nevertheless the Advowson is become in gross, for that, that it was appendent only to the Demesnes of the Manor, which were aliened, and cannot now be appendent to black Acre: because it was never before appendent to the same, in as much as appendancie is only granted upon continuance and prescription, and not upon the same reason. If he that is seisie of a Manor, whereof black acre is holden, and the same Escheateth, and he granteth the same black acre, (una cum Advocatione) the Advowson passeth not appendent to the acre, but in gross, as aforesaid; but if in the two aforesaid cases, a man were seisie to a Manor before the Statute of Westminster the third, De quia emptores terrarum, with an Advowson thereto belonging, and give certaino acres parcel of the Demesnes of the same Manor to diverse persons, to be holden of the same Manor, if afterward such acres Escheat, and the Lord granteth the residue of the Demesnes excepting the acres so escheated, and the Advowson; the Advowson is still appendent to the same Manor: because it was appendent to the same Acres, before they were given to be holden of the Manor. If a man were seisied of a Manor to which an Advowson is appendent, and before the Statute of Westminster the third were likewise so seisied of other acres of land in gross, and not parcel of the same Manor, if he had given the same acres of Land to diverse persons to be holden of the same Manor, (as he might then have done) and after the same acres of Land escheated, now are they parcel of the Demesnes of the same Manor, although they never were so before, and after the Lord of the Manor granted all the ancient and former Demesnes of the same Manor unless one acre, this acre and the other acres Escheated maketh now the Demesnes of the same Manor, and the Advowson appendent, is still appendent to the whole Manor, but yet it was so appendent in respect of the one acre, that was parcel of the ancient Demesnes of the same Manor, and if the Lord intent at any time to sever this, from the Manor, and still to keep it appendent to no acre, but only to that which was parcel of the Demesnes of the Manor, all which reasons prove that the Advowson is appendent more in respect of the Demesnes then otherwise. Of the other part, those cases prove that an Advowson appendent to a Manor is not appenpant to any part of the Manor, but to the en●yretie, for it is an entire thing; and therefore if a man hath a Manor to which an Advowson is appendent, i● he enfeoff I. S. of the same Manor, and 〈…〉 L●uerie of the Demesnes and before the 〈…〉 t of the Tenants, the Church becomes void, the Feoffee shall not present; because he hath not the Manor to which the Advowson was appendent: but if the tenants afterw●●●●tto●ne within six months, after the avoidance he may very well present thereunto. 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 six Months after the avoidance, the Feoffee may bring and maintain his Quare Impedit, and so recuer his presentation, which proveth that the Advowson is appendent to the whole Manor, as it is entire, and not by reason of the Demesnes only, for the determination of the Law in this; It is true that the Advowson in such case is appendent to the entire Manor, and not to any part thereof, during such temps, as it remains a Manor without alteration, or disjoining the Advowson from it; nevertheless, if you will dissolve the Manor and sever the Advowson from it, and yet desire to have the same appendent, than it cannot be appendent to any part of the Manor, but only to such Lands as were of the ancient Demesnes of the same Manor; wherefore in the first case, judgement was given, judgement. that after the Attornment had, the Advowson passed to the Feoffee of the Manor, as appendent to the entire Manor, and that the Grant made in the meant time between the livery of the Demesnes, and the attornement of the Tenants, was void, and that the Advowson p●ssed not thereby to the same Grantee of the Advowson, but is (by the Attornment, by which the services passed) made appendent to the entiretie in the hands of the Feoffee. LECT. 9 How an Advowson may be severed from the principal, and by what means it may be reconnexed thereunto again. IN the two last former Lectures hath been declared at large; First, to what kind of Inheritance an Advowson may be properly appendent, and then in what manner, it may be appendent: Now remaineth the third thing th●n treated of, that is to say, how it may be sundered from the principal; and again, by what means it may be thereto annexed by Entry or without entry into its principal. It may be sundered either rightfully or by a rightful conveyance, of which we shall speak more at large when we declare the nature of an Advowson in gross, and of that which is partly in gross partly appendent, whether it may be sundered in a wrongful manner, as by a tortuous act, that is to say, by Disseisin of the Manor, to which it is appendent, or by a wrongful assurance as by discontinuance, or other wrongful disposition thereof. As for usurpation we shall speak thereof in a place more convenient afterward at large, if therefore a man be disseised of a Manor to which an Advowson is appendent, and the Advowson becomes void the Manor still remaining in the hands of the Disseisor, this was ancient Law as Bracton saith, that Bracton. lib. ●. ●●. 55. C. 23. he should not have presented to the Advowson until he had recontinued or made his entry into the Manor, 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 Manor, and the entry of the Diseissee being lawful the Advowson becometh void, the Disseissee may present to the Church, before his entry into his Manor, but if the Disseisor be seisie of a Manor by disseisin, to which an Advowson is appendent, and the Church becomes void, so that the disseisor presenteth, whereupon the Clerk is admitted Instituted and Inducted, it seemeth that the disseisee in this case shall not have his Quare Impedit, to recover his presentation, unless he first enter into the Manor to which the Advowson was appendent, and though he enter; yet he shall be driven to his action. Yet if a man be seisie of a Manor, to which an Advowson is appendent and be disseisied of the same Manor and the Church becomes void, and the Disseisor presenteth one that is admitted, Instituted, and Inducted, and so continueth parson sometime after, if afterward the Advowson become void, now is not the Advowson so gained by such usurpation, but if that I that was deseisied enter into the Manor I may again present to the Advowson, because the former usurpation was a mean between the disseisin and the reentry, by which reentry the Disseisors estate as well in the Advowson as in the Manor, is clearly defeated. But it is otherwise of an Advowson in gross, in which case the Patron shall be driven to his Writ of right, so likewise if I be seisie of a Manor, to which an Advowson is appendent, and afterward the Church becomes void, and I present and be disturbed, and after I be deseisied of the Manor, here I shall bring my Quare Impedit and recover my presentation, before I enter into the same Manor. And so much is said, where the entry of him that hath right is lawful in the principal, but where the entry is not lawful there he shall not present to the Advowson, unless recontinuing the principal; and therefore if a man be seisied of a Manor to which an Advowson is appendent, and be disseisied, if the Disseisor die seisied, and the Church become void, the dissiessee shall not present to the Church, unless he first recover the Manor. If Tenant in tail be seisied of a Manor, to which an Advowson is appendent and maketh discontinuance of the same Manor, and after dyeth, if the Church become void the issue in tail shall not present thereunto, until he hath recovered the Manor by Formedon to which the Advowson was appendent. Likewise if a man be seisied of a Manor in right of his wife, etc. and both discontinueth the Manor with the Advowson, and the Husband dyeth, if afterward the Church become void, the wife shall not present until she hath recontinued the Manor by Cui in vita, but forasmuch as the Statute of the 30. H. 8. 28. giveth in such case power to the wife, or her heirs, to enter into the Land so aliened. The Law at this present day, must of necessity be taken, that the Wife or her heirs in the former case may present, without recontinuance of the Manor, for that, that the same Statute ordained then, that such alienation etc. Feoffement act or acts, made or done by the Husband, shall not be nor make in any manner any discontinuance thereof, or be prejudicial to her or her heirs. The former rule hath an exception in this manner, yet notwithstanding the entry being not lawful in the principal; yet if the Advowson be severed, and in any manner cannot be recovered, then may the party wronged notwithstanding present without recontinuance of the principal; As if a man before the Statute of the 32. H. 8. 28. be seisied of a Manor in right of his Wife, to which an Advowson is appendent, and giveth to an Estranger the same Manor or parcel thereof with the Advowson in ●e●, and dyeth afterward, the Church becometh void, and the Estranger presenteth and then Alleneth the Land to another in see, saving the Advowson, and now the Church becomes void, the wife in such case may present to the Church without any recontinuance of the Land discontinued to which the Advowson was appendent. Quare therefore in the 5. H. 7. 36 where it is holden that if there be tenant in tail of a Manor to which there is an Advowson appendent and he alieneth the Manor, with the Advowson in ●ee, and the Discontinued granteth the Advowson to another in Fe●, severing it from the Manor; the issue in tail shall not present until such time as he hath recontinued the Manor, nevertheless if a remitter be of the principal, he that is so remitted may present to the Advowson the next time that it becometh void, notwithstanding any usurpation thereof before had: For if Tenant in tail be of a Manor to which an Advowson is appendent and discontinueth the same, and the Discontinuee granteth the Advowson to another in fee, and afterward reenfeofeth the tenant in tail of the Manor, who dyeth seysied of the Manor, now his heir shall present to the Advowson when it becometh void; and if he be disturbed he shall have a Quare Impedit, because he is remitted to the Manor, and hath not any remedy otherwise to come to the Advowson. But upon the other part if tenant in tail be seisie of a Manor to which an Advowson is appendent and discontinueth the same, and afterward the Church becomes void, and the tenant in tail presenteth to the Church by usurpation, it seemeth by the better opinion, of the 5. H. 7. 36. 38. that he is not remitted to the Advowson, for that, that his ancient right thereunto was as to an Advowson appendent, but now it is in gross; But if the tenant in tail had aliened the same to an Estranger in fee, and after dyeth; notwithstanding that, he take the rents and services, that afterward descendeth to the Issue, yet is the issue thereunto remitted; because such rents and services are parcel of the Manor and not appendent. And so it was likewise before the said Statute of 3a. H. 8. if a man be seisie of a Manor which is an Advowson appendent in right of his wife, and discontinueth the same Manor, and after the Church becomes void, and he presenteth to the Church by usurpation, and dyeth; having issue by the wife, and the wife also dyeth, the issue in this case is not remitted to the Advowson, for the reasons before showed; hereof it en●ueth likewise, as before partly hath appeared, that in all cases where there is a Manor, to which an Advowson is appendent, and the Manor with the Advowson is aliened with wrongful conveyance, and the entry of him that hath right is not taken away, there may he present to the Church without recontinuance of the Manor, to which the Advowson is appendent; and therefore if a man make a lease for life of a Manor to which an Advowson is appendent, if the lessee for life make a Feoffment in fee, of the Manor and Advowson; and after the Church becometh void, the lessor may present to the Church, without any entry made into the Manor, because his entry was lawful into the Manor. But if it be a rightful purchase that requireth some other act to be done, for the execution and perfection of the same, then cannot the perfection thereof be accomplished in the accessary, that is to say, in the Advowson before the same be performed in the principal; wherefore it is holden by the better opinion in the 9 E. 3. 43. 839. that where a certain Chamber was exchanged for certain Acres of land, with an Advowson appendent to the same acres of Land: to perfect this exchange, he that had the acres and Advowson in exchange, could not present to the Advowson until he had made his entry into the acres. And thus much hath been said▪ how an Advowson appendent may be severed from the principal, and again recontinued with reentry, or without entry into the same. LECT. 10. Of Advowsons' in Grosse. AS concerning our first purposed Division, to be either appendent or in gross, or partly appendent, or partly in gross; I have before prosecuted the first part, that is to say; The natures of Advowsons' appendent, now therefore it resteth to speak somewhat of Advowsons' in Grosse. The originals of Advowsons' in gross, seemeth to be grounded upon two occasions; The first is, that Advowsons' in gross at the beginning begun originally by one of the before-specified three manner of ways; which is, Ratione fundationis, for when they were agreed, that he that founded the Church, and was at the cost of the building thereof, should be Patron thereof; he cannot be Patron of this by reason of any Land or D●●ation, by which his patronage might be appendent, but only by reason of the building, which being a Patronage without Land, must of necessity be the original cause of Advowsons' in gross. The second occasion of Advowsons' in gross, was the sundering and severance of them from the principal to which they were first appendent, and so by Grant or other Conveyance they became in gross, which before were appendent; wherefore how they may be fundred by Grant, now let us consider, and see what questions in our Books have been moved hereupon. In the 33. H. 8. 44. 48. 112. Pyer of the Opinion that Shelly is, That if a man be seisied of a Manor, to which an Advowson is appendent and alien one Acre parcel of the Manor, and by the same Deed, after granteth the Advowson, that the Advowson shall pass in gross; otherwise, he thought the Law to be as if the Feoffment were made of the entire Manor; yet this Difference agreeth not with the opinion of Hill, who thinketh that in both cases, the Advowson passeth appendent. Yet I think, If a man be seisied of a Manner to which an Advowson is appendent, and after granteth by his Deed one Acre parcel of the Manor, and by another Deed the Advowson, and delivereth 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 gross clearly, and not appendent to the Acre. If a man be seisied of a Manor with an Advowson thereto appendent, and granteth the Manor to I. and S. excepting one acre, the Advowson not being specially spoken of, in the Grant, it still remaineth to this Acre excepted; Foyes 〈…〉 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 partem fundi retinuerit non enim transfertur cum aliqua parte fundinisi special●tur transfertur. If he which harh a Manor to which an Advowson is appendent giveth one part of the Manor, with one part of the Advowson to A. and the second part of the Manor with the second part of the Advowson to B. and the third part of the Manor with the third part of the Advowson to C. in fee, yet notwithstanding this Division, the Advowson remaineth in common, appendent. If a Manor to which an Advowson appendent is belonging, descend to an heir, and if he grant the moiety or third part of the Manor cum pertinentijs, no part of the Advowson passeth; but if he assign Dower to his Mother, of the third part of the Manor, cum pertinentijs, she is hereby endowed of the third part of the Advowson and may have the third presentment. It a man be seisied of a Manor or one acre of Land to which an Advowson is appendent, and maketh a lease of the Manor or acre, for term of life, excepting the Advowson, the Advowson is in gross and cannot be appendent to the reversion of the Manor or acre. But if I lease the Advowson for term of life, reserving the Manor in my hands, yet the reversion of the Advowson remaineth always appendent to the Manor, or to the acre of Land. For if a grant be made by me of a Manor or acre, with the appurtenances, the reversion of the Advowson passeth, for the reversion of an Advowson may be appendent to a Manor or acre in possession, but the Advowson in possession cannot be appendent to the reversion of an acre or of a Manor. Also, if a man hath a Manor to which an Advowson is appendent and alieneth the same Manor, and excepteth the Advowson, the Advowson is become in gross, and although he purchase the Manor, yet is the Advowson still in gross; and cannot be appendent. But in all these cases some are of opinions that although the Advowson be excepted out of the grant of the Manor, yet nevertheless, it is requisite to have a Deed of such grant containing such exception, otherwise the Advowson will pass with the Manor. LECT. 11. Of Advowsons' partly appendent, partly in Grosse. Having formerly spoken of Advowsons' appendent and in gross, now remaineth the last member of the former division to be mentioned, which is Advowsons' partly appendent, partly in gross. Such Advowsons' as are partly appendent and partly in gross, are so deemed either in respect 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 appendent and at another time in gross, and so again may be appendent as occasion serveth. As if a man be seisied of a Manor or of an acre of land, to which an Advowson is appendent, and leaseth the same Manor or acre, excepting the Advowson, the Advowson is now become in gross, and yet after the lease is ended, shall be again appendent as before. In respect of the parson it may so happen, that an Advowson may be appendent 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 Manor to which an Advewson is appendent and an Estranger leavieth a fine of the same Advewson to him that is now seisied of the Manor and Advowson, upon which since the said countee: (being still owner of the Manor and Advowson) granteth to the Counsor that he shall present to the Advowson every second avoidance, by this sine the Advowson remaineth in respect of him that hath the Manor, still appendent to the Manor as before, but in respect of the Counsor that never had interest before, at every second avoidance it is become in gross, and he shall present thereunto as to his Advowson in gross. But if (as he in the former case) he that was seisied of the Manor had levied the fine, (and the Estranger so being counsee) and made such grant to the counsee to present at every second turn, the Advowson had been totally in gross; for by the counsance it had been wholly in gross, and scuered from the Manor. If three be seisied of a Manor that hath an Advowson appendent thereto belonging, and two of them releaseth all their right of the Advowson to the third, the third is seisied of two parts of the Advowson as in gross, and of the third part as appendent, for that, that the third part, was never severed from the Manor, but if the third dye, all the entire Advowson descends in gross to his Heir, for nothing was in jointure but the Mannot that survived 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 jointure, at the time of the death of the third joyntenave, and also because they released their right before. If two joint-tenants be seisied of a Manor to which an Advowson is appendent, and the one granteth all his right of the Advowson unto another in Fee, this Advowson is both● in gross and appendent, and if he that hath the Manor, and aught to present every second turn; bring his Quare Impedit, he shall not say that he is seisied of the Manor with the Advowson appendent at every second turn (namely, when there is partition between them) to present by turn, but shall say that he was seisied of the Manor with the moiety of the Advowson appendent. If a Manor with an Advowson appendent thereunto, descend to two coperceners, and they make such partition of the Manor, and composition to present, although the composition be otherwise then of right is due, yet is the first presentation to belong to the eldest, and the second to the second copercener, etc. and the Advowson remaineth still appendent notwithstanding such composition, to present by turn. But if three Manors descend to three Coperceners, and an Advowson is appendent to one of them, and they make such partition, that every Copartner hath a Manor allotted to him, and composition to present by turn to the Advowson, now is the Advowson in such case severed and in gross, in respect of the Coperceners. If a man be seisied of four Manors, and to one of them an Advowson is appendent and dyeth, having four Daughters, who maketh partition of the Manors, so that every of them hath a Manor, out of which partition the Advowson is excepted, this Advowson is in gross by reason of the exception; yet it seemeth if all the other Sisters should dye, except she to whom the Manor was allotted to which the Advowson was apdendant, that the Advowson should be again appendent to the Manor. If two Churches be, and the Advowson of the one is appendent to a Manor, and the other is in gross, and the two Churches hap to be united, and upon the union it is ordained, that the Patrons shall present by turn, now in respect of him that hath the Manor, the Advowson shall be appendent, and he shall present thereunto as to an Advowson appendent, but as to the other, he shall present as to Advowson in gross. LECT 12. What Presentation is, and what is the effect and fruit thereof, and in what manner Presentation and Nomination differ. IN the aforesaid Lecture or reading hath been declared such matters as was requisite for the explanation of the word Right, set forth in ●●● Description of an Advowson, which word being there put in steed of that which the Logicians call Genus, the rest of the words subsequent there likewise expressed, are the Proprieties effects, and qualities incident to an Advowson, thereby to distinguish this Right from other rights so that by such Description, 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 means of presentation to prefer and advance our Friend, and Presentation is thus described. A Presentation is the Nomination of a Clerk to the Ordinary to be admitted, and Instituted by him to the Benefice void, and the same being in writing, is nothing but a Letter missive to the Bishop or Ordinary, to exhibit to him a Clerk to have the Benefice voided, the formal force hereof resteth in these words chiefly, Presento vobis Clericum meum, 13. H. 8. 14. b. Therefore in our Books of Law, an Advowson is called nothing but a Nomination or Presentation, a power to prefer and enable another to have the Benefice, which not with standing the Patron cannot enjoy. Wherefore if the Nomination of an Advowson be granted habendum the Advowson, the habendum is sufficiently pursuant; for although it vary in name, yet it is all one in nature, so that the Grant of the nomination of an Advowson, is in substance the Grant of the Advowson. For the profit and commodity 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 void and repugnant 38. H 6. 38 b. 38. a. to the Grant. So that the opinion of Thompton in the second Commentary of Plowden in the Arguments of Smith and Stapletons' case, cannot be Law; who thinketh that if Tenant in tail be of an Advowson, and be granteth to one by Fine the nomination of the Clerk to the same Advowson when it becommeth void, that this Fine shall not bind the Issues, by the Statuto of the 32. H. 8. 36. Because such Fine is levied of a thing entailed, as he thought; whereby above it hath appeared, that the Presentation and the Nomination is one thing, and the fruit and full profit of the Patronage; and therefore such fine is of full effect and force to bind the issue in tail, for the Advowsons', and yet if the case aforesaid be so understood, that tenant in tail of an Advowson granted by fine the Nomination of the Clerk to one, and his Heirs, so that when the Church become void, the grantee and his Heirs should nominate a Clerk to the tenant in tail and his Heirs, and that he or they should present: the Clerk (so nominated) to the Ordinary, and the tenant in tail dyeth, such fin● shall not bind the issues in tail; therefore the fine is not of things entailed, for there is the nomination and presentation distinguished. The presentation may be distinguished from the nomination, so, that one may have the Presentation, and another the Nomination, and so they may be diverse distinct inheritances. As if I being seified of an Advowson in see, granteth to I. S. and his heirs, that he and his heirs every time the Church becometh void; shall nominate to me a person to be presented to the same Church, which person so nominated, I or my heirs shall present to the Ordinary of the place to be admitted accordingly, into the Church. ●4. E. 3. 69 a. b. 14. H. 4 11. a. 1. H. 5 16. ●. &. 4. 123. a. 21. H. 6. 17. And a question hath been moved here upon who shall be said Patron of the same Church, some think that he that hath the nomination shall be Patron only, and that he that ought to present, shallbe as servant to him that hath the nomination. Therefore in the 14. E. 4. 26. the justices distinguished, that if one be seisied of an Advowson and granteth to I: S. and his heirs to nominate at every avoidance to him and his heirs 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 every avoidance he shall nominate to me two Clerks, of which I shall present one to the Bishop, now I remain Patron, not with standing this, because the Election is in me which of the parties named shall be presented and have the benefice. If a man have the Nomination to a Benefice, and an other the Presentation, and he that hath the Presentation granteth an annuity to a Clerk until he be advanced to a Benefice by the Grantor, if afterward the Church become void, and the Grantee be Nominated, to the Grantor to be presented over, who doth so accordingly, and upon this be admitted, Instituted and Inducted, yet the annuity shall not cease, for that, that the Grante● was not the● unto pref●●●ed by the Grantor, although he present 〈◊〉. Of ●●e other p●r● there is an authority, that 〈◊〉 ● Spiritual ma● have the Presentation, and a Lay man the Nomination, if the Lay man nominate to the espiritual man a Clerk to be presented over, who doth s● accordingly, if before his admission the Lay man nominate another to be likewise presented, which the Spiritual man refus●●h to do; for that, that he hath presented one already by his nomination, the Lay man shall not maintain any Quare Impedit against the Presenter for such refusal; because, the Spiritual man is Patron, and being a Spiritual man, he cannot change his presentation already made; Also it should sleme in such case, that the presentation should be made only in his Name, ●hat hath the Presentation, and not in his name that hath the Nomination; therefore, if the Ordinary should refuse the Clerk for disability, notice shall be given 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 respect it must be had o● such an Estranger, as shall usurp upon the Bishop or upon the Patron in regard of each other, and in respect of all strangers that usurp; He that hath the nomination is only Patron, and shall have a Quare Impedit or a writ of Right, as h●s case requireth: In which his writ of Quare Impedit, shall be this; Quam permittit ipsum presentare: but his declaration shall be especial, that the Plaintiff ought to nominate one, & that be aught to present him over to the Bishop, and that B. hath diurstbed him of his nomination, and the writ to the Bishop shall be a recovery to the Plaintiff, Quod Ey●scopus admittat Clericum ad denominationem, etc. in respect of the Bishop that hath the presentation, he shall be said Patron; for if he that hath the Presentation cannot vary from his presentation, the other shall not; yet if he that hath the presentation, and he that hath the nomination be both Laymen, than he that hath the nomination may vary in his presentation, and change the same as often as he will, until Institution be had: wherefore in the former case it ensueth, that if he that hath the presentation be a Spiritual man, and present him that is nominated to him, being not fit, he ought not to have notice given him of the refusal of the Ordinary, for this cause, he that hath the nomination shall not have any notice likewise. For I think the Law to be thus; If one hath the nomination and another the presentation, and the Church becomes void, if the Laps incur, and he tha● hath the Presentation only presenteth to the Bishop, before the Bishop take benefit of the Laps, without any nomination of the other, the Bishop in this case aught and is bound to admit his Clerk that he so presenteth, as the Clerk of the Patron himself. If respect be had each of other, then are they both Patrons after a manner, and by injury offered by every of them to the other, one of them may punish the other. As if he that hath the nomination will present immediately to the Ordinary, he that hath the presentation may bring a Quare Impedit or a writ of right of Advowson, against him as his case requireth, so if he that hath the presentation refuse to present the Clerk nominated to him, or present one himself without nomination, the other shall bring a Quare Impedit or a writ of right against him, and his writ Fit●b. 33. b 14. H. 4. 11. a. 21. H. 6. ●7. a. shall be Quoth permat. ipsum presentare, etc. But in his declaration he shall declare the especial matter. In every of which suits and recoveries, and in the writ to the Bishop shall be so; if he that hath the nomination present to him that hath the presentation, he that hath the presentation may disturb him in two manners; either by refusing the parson nominated, or by presenting some other 24. E. 3. 69 b. himself that is not nominated. If he refuse to present him that is nominated to him; and suit be commenced without any actual presentation made by himself, than the writ to the Bishop of him that hath the nomination shall be, that he shall recover his nomination, and that the Bishop shall admit such as the other hath nominated to the presenter, according to his grant of nomination: But if the disturbance upon which the suit is granted be because the presenter that should present the parson nominated, hath presented some other himself, without nomination, than the nominator shall have his writ to the Bishop to present his Clerk immediately without any nomination at all, to be made to the other, that hath the presentation and to remove the other Incumbent. Finally, if one hath the nomination, and another the presentation, if such right of presentation accrue to the King, this shall prejudice, the inheritance of him that hath the nomination but he shall nominate to the Chancellor still, who in the name of the King shall present to the Ordinary. And if the King present without any such nomination, the nominator shall bring his Quare Impedit, against the Incumbent only, because the King cannot be termed as a Usurper. LECT. 13. The things incident to Presentation prosecuted, who may present, what Parsons may be presented, to whom the Presentation must be made, and the manner thereof. BEfore hath been showed 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 be presented, to whom the Presentation must be made, and in what manner; But because no presentation can be made unless to a Church or Dignity, something shall be showed, when they shall be void, and upon what occasion. An avoidance is in two sorts, actual in Deed, destitute in Law, which is an avoidance de Facto, and avoidance de jure. Actual, is when the Church is actual in deed destitute of his Incumbent in Law, when the Church being full of an Incumbent, is notwithstanding frustrate of his right and lawful Incumbent by reason of incapacity or crime in the parson of him that occupieth in steed of the rightful and lawful Incumbent, and therefore amongst the Canonists, Ecclesia Dr. viduam tuam sponsumque habet inutilem, there is therefore a great difference between voidance in Law, and voidance in deed; the first of which two, the espiritual Court hath to determine, and therefore the supreme head may so dispense there, that such anoydance in Law shall never come to be avoidance in deed, and of avoidance in Law no title acreweth to the Patron, unless something be thereupon accomplished, by the espiritual Court, as a declaratory sentence or such like; but, upon avoidance in deed, presentment acreweth to the Patron, yet in such and the like cases, Distinguendum est, for if the dignity be temporal, as a Master of an Hospital or such like, and that there be found defect in him by visitors, it is an actual avoidance, and the Patron may upon this make a new collation, without solemn sentence of deprivation; but if the dignity be espiritual, it is requisite upon such defect that sentence of Deprivation be given, before avoidance can be, and that such sentence be notified to the Patron, otherwise Laps shall not incur against him, Avoidance and plenarty, are primati●a contraria, which if they come to be tryable by issue between the parties, they are tried by two distinct Laws. plenarty, which is, if the Church be full of an Incumbent or not, shall be tried by the Common Law, which is by the certificate of the Ordinary; but Avoidance, which is, if the Church be void or not, shall be tried by the Country impanuelled in a jury, notwithstanding if the issue be upon any special sort, or manner of avoidance, the same shall be taxed by the certificate of the Bishop, so that such special cause shall be Spiritual. The efficient causes of avoidance, are either temporal as Death, or spiritual as Deptivation, resignation, creation session, and entry into Religion, whereof more shall be said afterward. LECT. 14. The two first particular causes of Avoidance of Churches, viz. Is either Temporal, as Death; or Spiritual, as Deprivation; the one of itself being manifest, and the other a discharge of the▪ Dignity or Ministry. IN the last Lecture or reading before, was showed something of avoydances of Churches in general, now it remains to pursue the particular means; that is to say, Death, Deprination, Resignation, Creation, or Session, and entry into Religion, of every of which, we will speak something, as the cause requireth. 1 And first of all, concerning Death, Quae omnia solui●, the matter of itself is manifest, and needeth no further declaration. 2 As concerning Deprivation, it is a discharge of the Incumbent of his Dignity or Ministry, upon sufficient cause against him conceived and proved; for by this, he looseth the name of his first dignity, and herein two manner of ways; either by a particular sentence in the Spiritual Court, or by a general sentence by some▪ positive or Statute Law, of this Realm. 1 Deprivation, is in the Spiritual Court for that, that it is grounded upon some defect in the party deprived, although it be by act of Law, yet it is deemed as the act of the party himself. The causes of Deprivation, by Censure in the Spiritual Court are to be referred to the Common Law, therefore let us remember such of them, upon which questions have been moved in the Books of our Law, all which causes mentioned severally, may be reduced to three principle points; first, want of Capacity; secondly, Contempt; thirdly, Crime. As concerning the first, although by the Common Law, a Lay person be presented, and Instituted, and Inducted, to an especial Benefice, which Curate is altogether uncapable of the same, yet the Church is not therefore to be said void, as if no presentation had been, but it is still full of an Incumbent, de Facto licet non de jure, until by sentence declaratory for his want of Capacity, the Church be adjudged void, and upon this no Laps shall incur against the Lay Patron, without notice (of such incapacity, & sentence of deprivation thereupon) to him given, King H. 4. presented one that was incapable of his presentation, and the Presentee was thereby admitted, instituted & inducted, and afterward the Pope enabled the presentee by his Bill, yet the King had a scire fac. and thereby recovered his presentation again, because the Incumbent was not capable when he was presented. If the Patron present one that is merely a Lay▪ man, within the age of 25. &. he upon this be Admitted, Instituted, and Inducted, and afterward a Qua. Imp. be brought against the Patron and the same Incumbent, whereof judgement is given by the default of the Incumbent, where indeed the Incumbent was never at any time duly summoned according to the Law, by reason of which judgement, the same Incumbent is removed, if upon this afterward, the said Incumbent by sentence declaratory be deprived in the Spiritual Court, for want of Capacity in suit there, for the cause of his incapacity exhibited against him, such sentence is good, & available in the Common Law, although the said Incumbent were before removed from his Beneside by the judgement given against him in the Qu. Imp. for though such declaratory sentence given against him by the Spiritual Law, cannot remove him that is removed already, yet it shall make this Incumbent answerable to the next Incumbent, for all the mean profits received by him, that was the first Incumbent, from the time of his Induction. Yet if the first Incumbent so deprived, will afterward bring a writ of deceit upon the judgement given against him in the Quare Impedit by default; for that, that he was not summoned as aforesaid, he shall have judgement herein, and the same Deprivation had in the mean season in the Spiritual Court, no Impediment thereunto; for that, that in the said suit of Deceit the Incumban●i● shall not be in question, but only the disturbance of the Plaintiff, in the Quare Impedit, and so for incapacity. Contempt, may likewise be a cause of Deprination, as if the parson or other Incumbent be Excommunicate, and he so remaineth in his obstinacy for the space of forty days, he is for this deprivable of his Benefice, and yet the Church is not void in Deed, without sentence in Deprivation given against him, and if before such Deprivation, the King as supreme Ordinary and the head of the Church would have a Dispensation to the Incumbent, who for all the sentence of Deprivation for his contempt had, he shall hold his Benefice; such Dispensation were void, and should restrain the Patron from his presentation acrewed to him, by means of such Deprivation after ensuing. The third cause, is Crime, within which may be comprehended Delappidation, or spoil of the Church Benefice, once, in our Books, worthy of Deprivation, likewise Sohisme or Heresy; for the which, or if for some other causes the Incumbent were deprived in ancient time in the Court of Rome, upon such Deprivation coming in question in our Law, the issue should be upon the avoidance, and it should be tried where the Church or dignity is; but because, Crime is Hydra, with many heads, and an evil Tree, whereof is bred Ingens proventus much fruit, for all fruit of offences which may be comprehended under this name; therefore let us surcease further to deal with it, only in general, noting those three things as the incidents, and consequents of Deprivations. First, that our Law adjudgeth not the Church actually void, without a sentence of Deprivation, as hath been before proved. Secondly, that though such sentence of Deprivation be merely wrongful; yet the Dignity is void, and the sentence remaineth in his force, until it be released. Thirdly and lastly, if the party deprived within time require by this Law an appeal (upon such sentence of Deprivation given against him at the Court of the high jurisdiction) such is the nature of an Appeal, that it holdeth (the sentence upon which it was first brought) in suspense; because, in the Common Law it is said, to have effectum suspensum prioris pronuntiati; and therefore, if it be brought upon Deprivation, it voideth the vigour thereof, and reviveth the former dignity, for such Church shall not be void, until the first sentence of deprivation chance to be affirmed in the appeal, and thus much of Deprivations in the Spiritual Court, shall suffice at this time. Concerning Deprivation by Censure of Statutes and Positive Laws, see these Books; that is tosay, 13. El. Cap. 12. 26, H. 8. Cap. 3. revived by the 1. El. Cap. 31. or 3. LECT. 15. The third particular cause of Avoidance, being Spiritual, is Resignation. THe precedent Lecture before going, hath showed the particular causes of Avoidance of Churches, whereof the two first, Death and Deprivation, hath been at large deciphered; the next is Resignation, of which I will also at this time something speak. Resignation, or as the Canonists terms it Remytation, Est juris proprij Spontanea refutatio, or whereas Resignation is the voluntary yielding up of the Incumbent (into the hands of the Ordinary) his interest and right which he hath in the Spiritual Benefice, to which he was promoted. Of which the matter or subject is the Spiritual benefice, as promotion Ecclesiastical. The form is the manner how, and with what words and due Circumstances it is or should be accomplished. The final Causes or effects hereof, is either thereby to make the Spiritual Benefice void and destitute of its Incumbent, or utterly to anient and totally to extinguish such Spiritual promotion. The efficient Causes are the persons that resign▪ and the persons to whom it is or aught to be resigned. As concerning the matter; this only may suffice to be observed, that all Spiritual Dignities presentative may properly be resigned, although they be Abbeys, Priories, prebend's, Parsonages, or Vicaridges, yet such Dignities as are certain may also be resigned, or to speak more properly relinquished, as were some of the Abbeys in the time of King Hen. the 8. and so may Bishop. pricks at this day be resigned, etc. into the hands of the King as supreme Ordinary of the Church and rightful Patron of the same Bishoprickes. As concerning the form of Resignation, and protestation which must be when the party will resign, they are set out in the Register, fol. 302. in the folioes of the Book following, as Fitzh. noteth in his not Br. fol. 273. F. or S. The words of chief effect in such instrument of Resignatine, are Remantiare, Edere, & Dimittere, for Resignation is not any proper term of the Common Law. Yet the Law of this Realm, more respecting matter then formality of words, hath adjudged a Grant made by a Prebenda●ie to the King, to be an effectual Resignation in the form of these words following, that is to say: Noverint me A. etc. exanimo Deliberativo, certa scientia & mero motu, & ex quibusda● causis iustis & rationalibus me specialiter m●uent. ultrò & sponte dedisse serenissimo Domino ●●stro Ed. 6. Angliae, etc. supremo Capiti totor●● Prebendarum suorum ac omnia maneria terras, tenement a possessiones & hereditament a quecunque, tam spiritualia quam temporalia, ac omnem plenam & liberam facultat. dispositionem authoritat. & potestat. dictae prebendae pertinen. spectan. appenden, etc. habendum & tenendum eidem Rege Hereditor. & Successoribus suis, ad eius vel corum proprium usum, etc. As touching the efficient causes of Resignation; as first, the person that resign, if he be not but only Admitted and Instituted, although as concerning the Spiritual Function he be a Parson before Induction, yet because no Com. 526. part of the freehold of the Spiritual Benefice is transferred to him, but by the Induction, he cannot until after the Induction, if the King be Patron, make any good and effectual resignation; ●1. E. 3. ●. ● as therefore, Renuntiatio respi●it plerumque ius quesitum, ac repudiamco pertinet adius nondum acquisitum. As also for that, that by this submission and Institution, the Church is not full in respect that the King being patron, such Incumbent before Induction is full subject to have his Presentation and Institution revoked. But if a Subject be Patron, and his presentee be admitted, such presentee (if he be willing to leave his Charge) may before Induction resign the Church, for the espiritual Dignity was full of an Incumbent in respect of his Patron, and because also there is no other means to clear the Church of him but by such renunciation. As concerning the person to whom Resignation must be made▪ Distinguendum est; for if he be only purposed to avoid the Church, and to cause the Patron to present again, than it ought to be done to the Ordinary to whom of right the Admission and Institution belongeth, and to whom the Patron is bound to present; for it is a Rule amongst the Canonists, Apud enim debet fieri renuntiatio apud quem pertinere, dignoscitur confirmatio, and Reason will, it shall be so; because the King as supreme Ordinary, if such Resignation should be made to him, he is not compelable to give notice to the Patron of such Resignation, nor can he or any other Ordinary collate upon the patron such notice. Notwithstanding, if the purpose be utterly to extinguish such Dignity spiritual, the same Resignation may be made to the King, as to the supreme head of the Church, as in ancient time it might have been made to the Pope. For such Authority and jurisdiction as the Pope used in this Realm, was contradicted by an Act of Parliament made in the 25 H. 8. and other Statutes to be in H. 8. and his Successors; which judgement and opinion I hold to be firm Law, especially where the King himself is Patron, or where the Patronage is to some Spiritual man for ever, upon Spiritual parsons the Pope (before the Statute of the 25. E. 3.) by his provisions and other means used more jurisdictions then at any time Lay persons could be permitted to do. The final effect which consisteth in the end, wherefore Resignation was ordained, we have heard to be two fold, the 1. 2. one to annihilate the Spiritual promotion, the other to make it void and fit for no Incumbent▪ of the first, we have sufficiently spoken before, and the use of the other is manifest by those authorities subsequent. A Prebend maketh a Lease for years rendering rend, and after resigneth it, it is holden clearly, that by this his Resignation, this Prebend is discharged of the rent, and therefore such charge shall not be any burden to his successor; likewise if a parson resign after he hath made a Lease for years, the Lease is avoided. Likewise, if a Parson permute or Change his Benefice, which indeed cannot be accomplished without Resignation, the Charge or Grant made by such Incumbent for years, is utterly void. If a Parson grant an annuity out of the parsonage, and after resign, if after all this the Patron and Ordinary will confirm such Grant, the Confirmation, and the Grant which was void before Confirmation cannot be available. With which agreeth Pollyard, who saith; 14. H. 8. 8. a that if a parson charge a Gleebe, and after resigneth or dyeth, the charge is avoided. A Recovery was had against a Parson in an action of Debt, and in a fierifac. thereupon the Sheriff returned, that the defendant was Clericus Beneficiatus & non, etc. in this case, if the Defendant resign, the plaintiff is destitute of his recovery, for by such Resignation the Church is discharged; because, the Ordinary cannot sequester the Spiritual Benefice upon any process awarded to him. But if the Incumbent that so chargeth, be such as hath by the law absolute power to deal with the lands of his Spiritual Dignity, without the Confirmation of any other, and may by the Law discontinue as Abbot or prior or such like, than such charge by him shall not be void, by such Resignation, but shall continue against his successors until it be avoided by some other means. Thus much concerning the final cause of Resignation, to which suffer us to annex the causes allowed by the Common Law, to move a Bishop or any other beneficed parson to relinquish and surrender their function, Conscientia criminis, debilitas corporis, defectus scientia, malitiae plebis, grave scandolum, & irregularitas persona. Lastly, let us consider, that Resignation is deemed in the Law totally to be the act of the party, and therefore if any Incument being plaintiff in any action resign his Dignity or promotion, his writ brought by him as Incumbent shall abate. But if such Incumbent take out a writ concerning his Rectory, and afterward resign, and again be promoted to the same Dignity, before the return of the Writ aforesaid, it is good and available. Upon the part of the De●endant upon the same reason, is the Law; that if any action be brought against any Incumbent, that may charge him in respect of his several promotions, his resignation (having the same suit; 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 void the Church, and to surrender his right therein to the Ordinary, whereupon the Patron may present whosoever it shall please him to the Church, as if the said had been voided by Death, or other means of Avoidance, as by precedent authorities hath appeared. The other cause of Resignation, is causa permutationis, of which in the Register, fol. 306. b. appeareth a precedent. Whereupon also ensueth the form of Presentation 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 & allego in hijs scriptis quod si contingit quod huiusmodi Ecclesia me●, de P. absque dolo & culpa meis in hac parte à me aliqualiter evincatur volo & intendo ad Dictam Ecclesiam de N. absque aliqua difficultat. libere & licite redire, & eam rehabere iuxta Canonicas sanctiones & protestor insuper quod non intendo nec volo ab huiusmodi protestatione seu affectu eiusdem recedere aliqualiter in futurum sed eidem protestitationi & contentis in eadem volo & intendo in futuris temporibus sirmiter adhaerere, iuris benesicio in omnibus semper soluo, etc. But to what purpose Protestation should seem in our Law, I cannot perceive; for that, that it appeareth by the Book in the 45▪ H. 3. & Fitzh. exchange it. LECT. 16. The next special means, in Avoidance of Spiritual promotions Presentative, is Creation. NOw Creation is, where the Incumbent is not only Elected, but consecrated Bishop, or Atchbishop. By the former Dignities of such Consecrated, the Benefices becomes void, and the Churches or places several (where their former Sanctuary was to be executed) and utterly discharged of their Incumbent, and this immediately upon Consecration without solemn sentence declaratory in the Spiritual Court. The reason whereof, is not only for Inconvenience of Pluralities; but also, because it should be likewise inconvenient for one and the same parson to be a Subject and a Sovereign, which in the course of our manner of jurisdiction cannot be, but is reserved in the Superior. Nevertheless, such avoyvance is not before Consecration or Creation, nor before Consecration is he that is promoted, deemed or called Bishop, or Archbishop: as appeareth by those authorities of 5. E. 2. Fitzh. br. 250. vide 9 E. 3. f. 1. trial. 571. 7. E. 3. 40. a. b. vide 21. E. 3. 40. a. b. 41. E. 3. 56. b. 46. E. 3. 32. 11. H. 4. 37. 59 76. & 22. H. 6. 27. ●. For the better understanding of this kind of Avoidance, it is to be noted, that as four things are required to concur for the full perfecting of any Parson or Parsons preferred to any Dignity Ecclesiastical, presentative or Collative, as (to wit,) first of all Presentation, or as the case requireth Collation; secondly, Admission; thirdly, Institution, and fourthly & lastly, Induction. So in the promoting of a Bishop or Archbishop, by the Spiritual laws, were required (before the statute of the 25. H. 8. cap. 20.) also four things, answerable in many respects to the four former before recited. As first Election, secondly Confirmation, thirdly Consecration, Creation, or Investure; and fourthly, Installation, or Inthronation. The Election was made by the Dean and Chapter, or by the Prior and Co●ent, where they being as Deane and Chapter, as in every of the seas Cathedral of Canterbury, Worcester, and Norwich, in which Churches the Prior and Covent was till the dissolution of Monasteries, at which time the same Pryories were dissolved, and in steed of them in every of the same Cathedral Churches, a Dean and Chapter hath been by private Acts of Parliament erected. But in some other Cathedral Churches, the Election hath been both by Deane and Chapter, as of Wells; and by the Prior and Covent at bath; and in the Sea of Coventry and Lichsield. And in some other Cathedral Seas, the Election of the Bishop have been by two several Deans and Chapters, as in the archbishopric of Dublin in Ireland, where both the Dean and the Chapter of Christ's Church, and the Dean and Chapter of Saint Patrick's joined in Election, and both of them used to confirm the grants of the Bishop, although Christ's Church was known to be the more ancient Church to that Sea. As concerning therefore the Election of Archbyshops and bishops, the Kings of this Realm of their prerogative royal, and being immediate Patrons of the same Cathedral Church, in ancient time gave and bestowed of their imperial Inrisdiction, Archbyshopricks and Byshopricks, to such worthy parsons as they thought fit, without any Election of the Chapter as appeareth, in the 17. E. 3. 46. Stour, and this investure was by a ring and a little staff, by the Delivery of the King, and Ensigns of the Bishop; but afterward in the time of King john, in as much, as the Popes had made constitution, that no man should enter into the Church by a secular person, totally, and that the Bishop of Rome coveted to erect the Popery above the Throne of Kings. A great Controversy was now amongst the Monks of Canterbury, upon the death of Hubbert their Archbishop, concerning the Election of a new one, and although the youngest sect of the Monks having licence of the King, and also appointment of the King to choose john Grace, one of the Bishops in this Realm for their Archbishop, yet the quarrel grew to such fervency, that it could not be quenched unless from Rome, where the Pope taking opportunity of such dissension, would not receive any of the Elected, but forced the Monks to choose for their Archbishop Stephen Langhton, than Cardinal of Saint Chrisogon, whereof ensued the great discord between the King, and the Pope; of which, such was the tyranny of Antichrist, that not only the whole Land was interdicted, and so remained five years. But the King was accursed, and the Subjects were discharged of their obedience, and oath of their allegiance to their natural Prince; and Lewis the French Kings son provoked to make war, against King john, until he were constrained to seek peace at the hands of the Pope, to yield his Crown to the Legate, and after five days to take it again at the Legates hands, and become feodary tenant to the Pope for the same, paying an annual sum of money to the Church of Rome, for ever; but also to content his Clergy, he gave to them always free Election of Spiritual Dignities, which memorable antiquity of the King's prerogative and the loss thereof, is briefly touched in the 2. H. 4. 686. and more at large by the Histories of those times, and although hereby free Elections were given to the Clergy, yet sued they forth the King's licence to proceed to Election. The Election of a Bishop thus made, did not bear the name of a Bishop but was to be called Lord elect of the place or Bishopric, to which he was elected. The second is Confirmation, which was usually made by the Bishop of Rome and not any other, who (before such confirmation) used to examine the party, and upon cause of nonability to refuse him. The third is Consecration, which was performer by the Bishop and two other Bishops at the least of the same province where the Bishopric than was, being thereunto appointed with the use of certain Ceremonies, as beatitudes, holding of the Bible over the head of the Parson to be Consecrated, laying on of their hands upon his head, anointing, and other rites, thereunto 38. ●. 3. 30 b. requisite; And yet it is said, that the Pope reserved the consecration of the Bishop to himself after election and confirmation, and before creation 5. ●. 2. Fitzh. 800, 2, E, 3▪ Fitzh▪ bre.. 250, 21, ●. ●. 5. 6. and Consecration: he that was so elected and consecrated, might still retain the name of his former dignity, and if he would refuse the imposed charge of the Bishopric. And yet after Confirmation and before consecration, of the parson confirmed, he might exercise so much of his Spiritual function as concerned the jurisdiction, but no matters concerning Ordination might he meddle with, for the full understanding whereof it is to be known, that all things belonging to the Episcopal function or Ministry, are to be reduced to three points; for they belong to him, either Ratione jurisdictionis, as the hearing of spiritual causes, Censures, and Corrections ecclesiastical, as Excommunications upon offenders and such like which may be performed by him after confirmation. Or, Ratione Ordinationis, as giving of Orders, consecrating or allowing of Churches, or such like, which he cannot do before consecration. Or, Lege Diocesiana, as the execution of Ecclesiastical payments and pensions due to him, as dioclesian of the Clergy rated upon the bishoprics of his Diocese, called therefore by the common Law census Cathedraticus. Notwithstanding, the King may restore to him his Temporalties after confirmation and 41, E, 3, 56 46, ●, 3. 32 ●. before consecration if so it please his highness, but this is De gracia & non deiure. But after Consecration, he was holden in all respects a perfect Bishop, and all his former dignities thereby were avoided, for although by Confirmation spirituale coniugium contrahetur, yet by consecration consumatur. The last thing is, Installation or inthronation, by which he is fully enabled, to pursue his Temporalties out of the hands of the King, and actually to enjoy the benefit thereof, but if after consecration and before he sue for the temporalties out of the hands of the King, the freehold be in him, or not is diversely taken in the 38. E. 3. ●0. ●, 5. Notwithstanding, the Metropolitan aught to certify the day and time of the consecration of every Bishop, within his Diocese, for according thereunto he shall be restored to his Temporalties, and this I think to be reason. Thus you see, that in some respect the Election of a Bishop resembleth the Presentation of a parson, the Confirmation, resembleth the Admission, of a parson, the Creation resembleth the Institution of a parson, and the Installation or the inthronation the Induction of a parson, yet in many other respects they differ. And although after the abrograting of the Pope's authority out of this Realm, it be ordained by the 25. H. 8. cap. 20. that the election of Bishops and Archbishops, should be altered and the King restored to his ancient prerogative therein, which prerogative King john and his ancient progenitors long since enjoyed, and although likewise the Ceremonies, form, and manner of consecration of Bishops by the Authority of parliaments, in the time of King Ed. the sixth, were now appointed and published, all acts of parliament being repealed by the first and second of Philip and Mary, are now revived and in force, by Eliz. yet our former position holds now firm Law, that no Church nor Spiritual Dignity at this day, becometh void, by king the Incumbent thereof Bishop, until his Consecration, as well by rigour of ancient time, as by Statute. And therefore at the Common Law, if the King upon defect, or otherwise, give by virtue of the 25. H. 8. 20▪ by his Letters patents to any fit parson, any Bishopric or archbishopric within this Realm, without Election, and thereupon before Consecration restore to him his Temporalties, or if the Pope had given a Bishopric to any fit person by reservation, which amounteth in Law to an Election and Confirmation, if the King had restored to him his Temporalties, yet in both cases until Consecration, he is no perfect Bishop, nor his former Dignities by such Grant and restitution of Temporalties become void until Consecration as aforesaid. If before the 25. of H. 8. 10. the Incumbent of a Benefice had been Elected Bishop and confirmed, and before consecration had, obtained of the Bishop of Rome, a dispensation still to enjoy his former benefice, notwithstanding his Creation or Consecration, had ensued accordingly; yet by such Creation, the Church should not have been void, but the party still enabled to retain the same Benefice against the patron by virtue of such Dispensation. So at this day, if an Incumbent of a Spiritual Benefice, be elected and confirmed, and before he be consecrated, obtain licence or dispensation of the Archbishop of Canterbury, to detain the Benefice incommendam; yet he shall be promoted to the same Bishopric, although his licence never be enroled in the Chancery, according to the 25. H. 8. but only enroled by the Register of the Archbishop, although the Consecration be before this licence or dispensation appointed to take effect, yet by virtue of such Dispensation, the former Dignity or Benefice becometh not void, by the same Consecration. Yet if the I●eumbent of any Spiritual benefice be elected, consecrated, and confirmed Bishop, and after his Consecration procureth a Dispensation of the Pope in papacy, or of the Metropolitan since the Stat. of the 25. H. 8. c. 20. such Dispensation shall not be available; because, by the Consecration, the former Dignity or Benefice was actually, and in Deed void; and then, neither the Dispensation of the Pope, could at any time, nor of the Metropolitan at this time, take from the Patron, the right of his presentation of such avoided Dignity, by the Consecration acrewed to him; because, after the first Dignity is once void by the Consecration, the Dispensation cometh too late. Yet the King, Ex summa authoritate sua Regia Ecclesiastica qua fungitur, may grant (to the Bishop that is consecrated) power to take and receive by presentation, Institution and Induction, any Spiritual Benefice, and to hold the same in Commendam, notwithstanding his estate of being Bishop, for so the Pope used to do, and the same Authority is recognised by the Statute of the 25. H. 8. to be in the King or Queen of this Land, which was within this Realm by the Pope. Finally, this is to be noted, that whereas before it hath been said, that Deprivation is the act of the Law, yet grounded upon the act of the party; So is Creation of the Bishop, the act of the Law, wherefore if a man bring an action and pendant his writ, be created Bishop, the writ shall not abate; because, it is only the act of the Law, but yet Resignation is merely the act of the party, thus much for Creation. FINIS.