JUDGE DODERIDGES READING OF Advowsons, or Church-Livings. WHEREIN Is set forth, the Interests of the person, Patron, and Ordinary, &c. WITH Many other things concerning the Matter, as they were delivered at several READINGS at NEW-INNE. And now Published for a Common Good. LONDON: Printed for Laur. Chapman, and are to sold at his Shop next door to the Fountain Tavern in the Strand. 1663. 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 Ordiarie 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 bee appendent secondarily. fol. 30 7 In what manner Advowsons are appendent to a Mannor. fol. 35 8 If an Advowson appendent, that consists of Demesnes and Services, shall he appendent in respect of the Demesnes onely, 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 bee reconne●ed thereunto again. fol. 47 10 Of Advowsons in gross. fol. 54 11 Of Advowsons partly appendent, partly in gross. 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, 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. 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 person. OR, A Description of Advowsons. LECT. 1. The name, nature, Divisions, Consequents, causes, and incidents of Advowsons, or Patronages. FOrasmuch as wee are said to know, cum Causas cognoscimus, and seeing he laboureth in vain, that seeketh to apprehended 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. office. lib. 1. institutio, debet à definitione proficisci vt 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, wee 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 onely of Dignities presentative by the course of the Common Law, but also of promotions donative by this Statute: As chantries donative,* Free chapels, &c. Also it lieth, of a Fitz. N. Br. 30. Ibid. 33. a. 31. E. Ib. 349. E. Subdeaconship, or Hermitage, which also may bee donative, and this is grounded vpon the words of the Statute, De cetero concedantur brevia de caeppillis, Prebendis, Vicariis, Hospitalibus, 14. H. 3. Fitz. quare Imp. 183. Abbatis quae prius concedi non consueverunt; Yet nevertheless, I red 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, chantries, 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. Summa hostensis de jure patrono. Summa Auglic eod. Tit. Súma Siluestrine Tit. Patronatus. An Advowson, or as the term, Jus 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 ea instituatur. And he is so called, De patrocinio, of defence: For that, that he should defend the Church, or â similytudine Patris, quia sicut pater filium, fie patronus Ecclèsiam, de non esse, de ducit 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 Devocando: 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 Cannonists, as well now the Description and etymology before shewed, and after also, to fetch from them more high matter. But let such curious Carpers, 43. H. 6 40 v, Astiton ( if any bee) remember the Speech of Aslyton,* who affirmeth, that every Advowson, and 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 wee purpose to seek the things in this kind of learning, wee must of necessity bee beholden to them. But to return where wee digressed. The material causes and subjects, in which this learning dependeth, are the things before mentioned. As Churches, chantries, and chapels presentative, and such like. Churches are of three sorts Cathedrall, Collegicall, and Patrochiall. A Cathedrall Church, is the seat or Church of a Bishop, and therefore he onely may bee said Incumbent thereof. Collegiall or Conventuall Churches, are such, as in times past, have been in Priories, abbeys, or such like, and are still in colleges. Parrochial Churches are well known, and johan bellonius de etimologiis. are those, Ad quem plebs convenit ad percipienda Sacramenta Baptismatis& Corporis Christi unde pabulum animas sustentandas libere suscipiunt, for the Incumbent thereof, is onely 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 briefly 34. E. 3. Fitz, Qu. Imp. 187. for the name, matter, and substance of Advowsons. The former cause or manner of this Inheritance, yeeldeth forth the usual and ordinary distinctions of Advowsons, to bee 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 interist, endowed the same Church. Ratione Fundationis, is, when he or his Ancecestors, or those from whom he claims his interest, were founders of the same Church. Rationi Fundi, is, when the Church was built upon his or their Land, from whom he derives his interest; or all three together, as appeareth by the verse, used amongst the Cannonists. Patronum faciunt does, edificatio, fundus. The usual cause or causes, why Patronages Summa hostiens. Tit. jus Patronas. of Churches are given by the Law, and bestowed upon Lay-men; is, and were, Vt inducantur laici ad fundationem, constructionem,& Dotationem Ecclesiae. The fruit and effect of a Parsonage consisteth in those three things. Honos. Onus, & utilitas. 1. 1. Honos, The Honour attributed to a Patron, consisteth in his right presentment. In the discourse whereof, I shall afterward consider, what is required, before the same can bee attempted: then what the manner 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 tryable thereby. The manner and means how an avoidance groweth, is either spiritual, or temporal. 1 temporal, by the death of the Incumbent. 2. spiritual, and this is in divers 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, then who shall present, afterwards what person may be presented; and last of all in what manner the same must be done. Those things, that are required to make a perfect Incumbent, after the presentation had, dependeth 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 bee instituted, wee 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 bee performed, and what it doth import. If the Patron be remiss, and doth not present within the time limited, then incurreth the lapps 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 parsonage,( which is Onus. Onus) resteth onely in the defence of the Churches possessions, to which the Patron and ordinary by aid prayer, are to bee called by the Incumbent, for the defence of the same, to avoid such charges and encumbrances, as are unduly laid thereupon. As touching the third, which is utility, wee Utilitas. have not any thing to do with it in our Law; but wee 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, then the incumbent of the fruits of the Church by compulsary Censure, of the Ordinary, according to that Law, is to be enforced to make contribution to them. All writs concerning this kind of Inheritance are either given to the patron or Incumbent. Writs given to the patron are of two sorts, Brevia. for either he demandeth his Inheritance, or presentation, against the possessor, of the patronage, or he attempts svit 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 onely 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 of 33. H. 6. 34. b.& 35. a. act. Dower, for the wife of him that dyed seized of such estates as shee might be 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. Fitzh. 11. br. 217. b. in Discender, nor for any in the remainder, nor for the donor in the reverter; for that, that if the Advowson be in gross it cannot properly be discontinued, and being appendent it it 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 onely writ of Juris utrum, 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, there lieth a spoliation, it being a svit 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, then but pointed at, with a more large and ample explication. First therefore, it is to be considered, that in every bnfice three persons have interest. That is to say, the person hath a spiritual possession. The ordinary to see the Cure served: And the 12. H. 8. 7. b. per Pollyard. 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 onely, but a right, intetest, or an Inheritance: The word Ius or Right, is diversely intended, come. 284. a. sometimes strictly, to signify what is left a man, when that, that was once his own is wrongfully come 487. b. taken from him, as by Disseisin or such like. In which sense, the word Droit and Tort are privatè opposita, and is thus divided; to bee either Bracton Ius. right of Action, or right of entry; sometimes in a more ample signification, as Ius habendi, jus possessendi, jus disponendi, by which occasion I purpose at this time to discuss, whether the Patron and ordinary have right in the rectory or bnfice, and what manner of right it is that they have; their right is called collateral, as wee red, 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 bee 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,& Littleton gives a notable reason for it. Which is, that if the Charge be perpetual, the consent of all three ought to concur, of which ensueth thus much, that if a writ of annuity be brought against the person,& he prayeth in aid of the Patron& ordinary,& 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 saith not any thing, it shall bind the Rectory in perpetuity. For Qui tace● consentire videtur. But if the person onely with the consent of the Ordinary for tithes or other consideration executory, charge the Church in perpetuity, it shall bee good, without the consent of the Patron, as well as if the consideration executory had remained. Secondly, it followeth, that the charge of the person, patron and Ordinary shall bind in like manner as their interest is. But if a man have an Advowson for yeares, and the person by the consent of such patron and Ordinary, grant rent charge in fee, if the person die within the term, and the term our of the Advowson presents another, and the term expireth, Quaere if then the annuity 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, than during the interest of the patron. And therefore if two joyntenants in common, or parceners be of an Advowson, who agreeth to present by turn, if the person join in grant of a rent charge in fee, with one of them, the person shall bee 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 person; for, if the Grantee enter into any part of the glebe, he shall not suspend the rent or annuity. And if the person, Patron, and ordinary, join in a grant of an annuity to S. H. and his heires, except they speak of the successors of the person, and that the same be granted for the person and his successors, this cannot bee good longer than for the time, that the person that granted the same, continueth person; for an annuity is nothing but a parsonall duty, and no otherwise. And if such an annuity be granted 21. H. 7. 4. a. over, it is not needful to have Atturnment; all which proveth, that the same chargeth not the land, but the person; yet nevertheless, the person is charge, for if the Grantor assign or be removed by any means whatsoever, the charge followeth not his person, but resteth upon his successors, and the jury may bee taken of the town where the Church is, which proveth that such grant chargeth the person in respect of the Land. Moreover, when the Patron and ordinary confirmeth the grant of the person, 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, resign, or otherwise be deprived before the confirmation, such Confirmation is void notwithstanding. If an Incumbent grant rent charge, to begin after his death out of his rectory, and the patron and ordinary confirmeth the same, this is good for 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. E. 3. grant 90. annuity. that all three may charge the Church in perpetuity, so may the patron and ordinary do onely in time of vacation, which charge shall bind the Successor for ever. Because none hath intermeddling with the rectory, but the Grantors aforesaid. The third principal reason; is this, that as the Ratio 3. patron and ordinary in time of vacation, may Fitzh. Release, 57. Jur. ven. 6. 33. aid le Roy, 103. charge the Church in perpetuity, so they may make a release, by which any annuity that chargeth the Church or rectory shall bee 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 ●1. H. 7. 24. 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 jus 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 parole may demur undiscussed during his nonage, this shall not bee granted; but the Infant in such case shall bee ousted of his age, because the charge lieth upon the person, and not upon the patron, or Ordinary, who are not at any time to enjoy the Rectory themselves, but onely are to have the disposition 7. H, 4. 16, a. thereof. Finally, to prove that it is merely collateral: If the patron and Ordinary do nothing but give licence to the person to charge his Rectory with an Annuity, this shall bee 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 person; because neither the patron, nor the 11. H. 5. 7. 8. b. 14. H. 8. 31. a. Ordinary can have the Church themselves, but onely 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 set forth to you the right that both the Patron and Ordinary hath jointly to intermeddle in the Church: Now it remaines likewise that I declare their several interests: Therefore at this present, I intend 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 refer 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 brief thus bee 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 svit of Iudicavit, attempted against the presenter Fitzh. 30. b. or 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 H. 6, 20 a. Per Fortescue. 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 come. 1 57. 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 gift of the Church. moreover, the King being Patron, hath often ratified and confirmed the estate of the incumbent 45. E. 3. 19b in a rectory, that an usurper had presented; by means whereof, he cannot remove the 32. H. 6. 32 a. 7. H. 4. 13, b. 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 Chutch; 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, ●. 12. H, 7, 16, 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 seisen, 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 reason. 26. H. 8. 2. a 33, H. 6. In a Writ of right of Advowson, the person shall bee summoned in the Church, or at the door of the Church: And if a villain purchase an Advowson in gross,( Littleton saith) full of an Incumbent, the Lord of the same villain may come to the same Church, and there claim, and the Advouson 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. WEE 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, messsage, come. 176. v. Land, pasture, Rents, &c. that hath substance in themselves, and may continue for ever. Hereditas incorporata is, Advowsons, Villeins, ways, Commons, Courts, Piscaries, &c. 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 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, 33. b. in our books, whether an Advowson may bee holden or lie in tenor, yet the most authorities concurreth and are, that any Advowson either in gross or appendent, lieth in tenor, as well 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 glebe) the beasts of the patron onely, if they happen to bee 33. H. 6. 35. b. 5. H. 7. 39. b. 15. H. 8. a. 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 tenor, and being parcel of 14 H. 4. 2. b. a Mannor or appendent to it, it may bee 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. Or. 38, b, Capite; and therefore, if a man grant a Ward, or Omnia terra& tenementa, that he hath by reason of his Ward, if there bee an Advowson holden of the Lord, being Guardian the same passeth to the Grantee, by the words of Omnia terras& tenementa. Of an Advowson a praecipe quod reddat lieth very well, and a Writ of Dower shall bee 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 her 5. H. 7. 38. 15. H. 7. 18. a. 7. E. 4. 6. Fitzh. 29. 3: 149. d. 3. H. 7. 5, a. that hath the inheritance in it shall bee Tenant by the courtesy, although there never were had any presentation by the wife 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 fratis, &c. 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. then it shall descend to the next heir of the entire blood. In Advowson is an inheritance and cannot be divided into parts and parcels, for in a Writ of right of Advowson, 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 Advocationis 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 divers may be several parsons, and have care Fitzh. 3. b. 32. H. 6. 11. b. 14. H. 6. 15. b. Fitzh. 30. v. of souls in one parish, and such Advowson is 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 falleth out, Advocatio tertiae parts Ecclesiae, and the like. But Medietas advocationis Ecclesiae, is after partition 7, E, 3, 30, b. Fitzh 31 b. 14, H 6, 15, b. 33. H. 6, 11, b. 5, H, 7, 7. b. between parceners, for although the Advowson bee 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 onely in this case to bee presented, and not Advocatio medietaiis Ecclesiae. And this difference is onely taken and observed in the Writ of Right, which is altogether grounded upon the right of Patronage, But in the Quare Impedit, which is onely 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 to bee reputed of: It is not by the Law of God, to be bestowed upon any Incumbent for any need or price; but onely reserved 29, E, ●, 5, b. 9, H, 6 57, a. 32, H, 6, 22, a for such as are worthy thereof. And therefore it is said;* That Guardian in Socage of an Infant shall not present to any Advowson; because 5, H. 7. 36. a. 37. b. 12. H. 8, a. such presentation is not to bee 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 Formed on. And as the value thereof may come in question, 8, E, 3. Fitzh, recovery in value 11& 9. as a writ of right of Advowson, where the Tenant avoucheth, and the voucheel oseth; the Tenant shall recover in value against the vouchee, for every mark that the Church is worth per Annum xij 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 tenor. 3 That it passeth by 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 fratris, 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 wee shall recover damages. LECT. 5. The word Right, and the word Advowson explained, and to what Inheritance an Advowson may bee appendent originally. IT resteth at this present, for the more ample explication of this word Right,( whereas in defining an Advowson, wee say it maketh a Right) to set forth the divisions of Advowsons, and to prosecute every part divided with a full 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 haue the other as annexed to the same; For an Advowson 33 H. 6. 4. Lit. 20, E. 4, 15, a. 8. H. 7. 4. b. passeth always with the Inheritance, to which it is appendent; unless, there bee express nomination onely by these words( Vna cum pertinentiis,) except it be in case of the King, where the Statute Deprerogatiua Regis, cap. 15. provideth express words to make the same to pass. The original of Advowsons appendent to the beginning must be in this manner, sithence Patronages were won and gotten as before hath been delared; and that either ratione fundationis come. 161. a 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 Mannor, or honor 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 bee appendent to the same Mannour, which is ratione 5. H. 7, 6. fundi. Or he that was owner of the same Mannor or of any such corporal Inheritance, endowed the same Church with parcel of the land of the same Mannor, honour, or such like corporal Inheritance, and gave the same to the glebe, 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 appoynted to be appendent to such Mannor, Honour, or other corporal Inheritance, in recompense of such livelihood, and dotation bestowed upon the Church. And hereof it ensueth, that if at any time the 5. H. 7. 37. a. 13, a. 11. E. 4. 11. v. 20. E, 4. 15. b. Church bee dissolved, the glebe and land upon which the Church was built, shall return and escheat to him or them from whom it was derived and deduced. And in like case, upon the dissolution of an Fitzh. 33. k. Abbey, the same shal not return to the founder 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 bee 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 bee appendent properly and originally, to things that are onely Inheritances corporal, that are compound: As to an come. 170. 5. Honour, earldom, ot such like; likewise to a Castle, more usually to a Mannor; all which 10. H. 7. 19. principal things, that is to say the earldom, Honour, Castle, and Mannor, &c. are inheritances compound, made and combined of divers things, and in nature different, being those which the Logicians call Tota Intigratia. 2 It may bee appendent to an Acre of Land, or to a messsage, 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 mannor. Advowson that lieth in one county, may be 33. H 6. 4. b. lib. ult. 34. E. 3. Quare Imp. Fitzh. 10. appendent to a mannor that lieth in another county; and how two or more Advowsons may be appendent to one mannor, may be manifested thus. If he that in ancient time was seisied of a mannor, that extended so large as it was divided into divers parishes, the Lord of the same mannor, either gave out of the same mannor land to build, or to endow every of the Churches, and so every of them might bee appendent to the same mannor. How one Advowson may bee appendent to two manors, may likewise thus appear. Suppose that A. bee seized of an Advowson of the Church of Dale, as appendent to the mannor 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 bee 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 moieties as is between Coperceners, Joyntenants, 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 Mannour of Dale, and the other also shall present thereto when his turn cometh, as appendent to the Mannour of Sale. Yet some are of opinion, and some authorities 14. H. 6. 2●. b. Fitzh. 39. there are, that each of the same patrons after the same union, is seisied De medietate Advocationis Ecclesiae. And in what manner soever the same Advowson be entire, yet is the Parsons interest several; For if such Incumbent, which is presented after such union made, grant a rent charge out of the glebe, and one of the Patrons onely confirm, no distress( after the death of the Incumbent that granted the rent) can bee taken upon the glebe, that belongeth to the glebe of the other Patron, to make the same subject to the charge in perpetuity; for that, that he confirmed not. But if the Mannor of Dale bee holden of the 32. H. 6. 64. b. Mannor of Sale, and to the Mannor of Dale is an Advowson appendent, and that the Mannour of Dale hath escheated to the Mannour of Sale, so that the demeans of the one is become parcel of the demeans of the other; yet the Advowson shall bee still said appendent to the Mannor of Dale, as it was at the first; and the Mannor of Dale shall continue still in reputation a Mannor, in respect of such things as are appendent thereunto. The moiety of an Advowson may bee appendent 33. H. 6. 11, 12. a. to a Mannor, or parcel of a Mannor. Also, in the pleading of a case in Edw. 6. by 6. E. 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 Mannor, and another fourth part of the same Advowson was appendent to the other moiety of the same Mannor, 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 parr 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 parsonall 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 the Advowson is entire, and not several, by reason whereof the demandant cannot abridge his demand. And as in the cases aforesaid it hath appeared, 18. E. 3. 15. that an Advowson of a Church may bee appendent to a Mannor, in like manner may the Advowson of a priory bee appendent to a Mannor. LECT. 6. To what things an Advowson may bee appendent secondarily. IN the Lectures aforesaid, was shewed to what sort of Inheritances an Advowson may be appendent originally; Now it remaineth to show to what things it may bee appendent secondarily. An Advowson therefore cannot bee 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 mannor, or parcel of any earldom, Castle, or such like Inheritance, to which an Advowson may bee appendent originally; But in what order the same may bee appendent to one acre, 5. H. 6. 10. a. Fitzh. feofments and feof. 115. let us consider; some bee of opinion, that if a man bee seisied of a mannor to which an Advowson is appendent, giveth certain acres of the same Mannor, una cum Advocatione to another, in such case the Advowson shall not pass, to the grantee, unless the same be by dead, and so the same shall bee 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 Mannor, to which an Advowson is appendent in right of his wife or jointly with his wife, and maketh a feofement in fee of certain acres parcel of the demeans of the same Mannor una cum Advocatione, and dieth; that the wife notwithstanding this, may present to the Advowson, before she recontinue the same acres, by cvi 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. 3 2, a. reason, why the Law should be so in such a case; for if a Tenant in tail of a Mannor, to which an Advowson is appendent alien some of the same acres parcel of the Mannor, together with the Advowson, although it bee without dead, notwithstanding it is appendent to the Acres, and cannot be recontinued but by Formedon to bee 43. E. 3. 26. b. or v. Thorpe. brought for the same acres, which case in reason, being like to the Formedon of the acres and Advowson aliened by the husband, I know not any difference of Law that should bee between them; and therefore if a man bee seisied of a Mannor to which an Advowson is appendent and make a lease for life of the same Mannor, una cum advocatione, if the lessor enter into 17. E. 5. Mombray. the same Acre of land for forfeiture, he hath recontinued the Advowson, as appendent to the same Acre. An Advowson cannot originally bee appendent come. 170. b. 16. H. 7, 13. b.& 9. b. to a messsage, but secondarily it may; therefore if an Advowson be appendent to a parcel of land, which was sometimes part of the demesnes of a Mannor, and such like, if a messsage be built upon the same parcel of Land, the Advowson shall be appendent to the same messsage, and if the same messsage fall or bee pulled down, the same Advowson shall bee again appendent to the soil, as it was before. So likewise, an Advowson may by a secondary 17. E. 3. 51. a 30. E. 4. 6. b. 11. H. 6. 32. b means be appendent to a Rectory, for vicarages being not first erected( in as much as the Substitute cannot bee before the principal) but 5. E, 2. Qu. Imp. 165.& 178. 7. E. 3. 12. a. 51. a. 16. E. 3. m. d. fait. 11. 6. 5. E. 3. 26. b. 11. H. 6, ss 8 b, 31. H. 6. 14. a. Fitzh. 33. v. t. 34.& 35. f. all at the beginning were parsonages, of the which Vicarages were derived, and that for the most part, by the reason of many Impropriations of benefice, 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 bee always appendent to the Rectory of a parsonage, so that he that is person, 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: wtih all the hereditaments thereto belonging, the Advowson of a vicarage passeth too the Grantee. In the same manner it should be, if the vicarage were endowed, so there be a person 11. H. 6. 18 a.& 32. b. 17. E. 3. 51. a 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 person having the Advowson of the vicarage( as of common right he ought) present one too the same vicarage by the name of person, 11. H, 6. 18& 32. b. who is admitted and instituted accordingly, by such presentation hath the same vicarage lost the aforesaid name, and is becomed a Parsonage, tamen quere if the first Parsonage remain, 11, H. 6. 18& 22. and if one of those parsonages( if they both continue) be appendent to the other; but 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 come. 169. b cannot originally bee appendent to another Church or chapel; for that, that things of one nature cannot be original appendent each to other. But notwithstanding, secondarily the Advowson of a Church or chapel may bee appendent to another Church or chapel. As if the Advowson of a Church or chapel 43, E, 3. 3● a. Fitzh. Qu. Imp. 13 bee appendent to one acre of Land, that was sometimes parcel of a Mannor, or such like; and after a Church or chapel be built vpon it, the last new erected Church shall bee appendent to the aforesaid Church. An Advowson may be amortified to a Church 22. E. 3. Fitzh. aid le Roy, 103. or chapel, and if it be recovered and lost by Default, the person thereof may haue a Writ of right. And an Advowson may be parcel and part of a Deanerie, and if the same bee in any free-Chappell Ibid. Fitzh. 103. of the King, if the dean be impleaded, he may of this haue 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 Mannor. 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 it is appendent and whether it bee onely accident or incident thereunto. Secondly, if an Advowson be appendent too a Mannor, that consisteth of demeans and services, in respect both of the demeans and services, or if it shall be said appendent to a Mannor in respect onely of the Demesnes, in as much as the Demesnes are one corporal Inheritance, and such part of the Mannor as onely lieth in manuel occupation. 1 As concerning the first, the Authorities of our books are diversly 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 Mannor and the like, is either part or parcel of a Mannor, Honour, &c. or other Inheritance to which it is appendent. And they ground themselves upon the authorities of 43 R. 3. 22. a. b. where iit was adjudged that the grant that King H. the 3. made to Thenel Ratio. 1. Marshall of a Mannor, to which an Advowson was appendent, without these words( cum pertinentiis) and without any mention of the Advowson; yet notwithstanding, the Advowson passed in case of the King before the statute of Praerogativa Regis, Cap. 15. And so likewise it is in the case of a common person 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 Mannor, 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 Scyons case, the difference is agreed for Law, that if the King be seisied of a Mannor to which an Advowson is appendent, and granteth the same Mannor, and 9. H. 6. 28, or 8. b. in the grant the words of the patent are dedimus& concessimus, the Mannor of D. expressing not the Advowson in the clause of the grant; if afterward in the habendum there bee, 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 Mannor of D. to which no Advowson is appendent habendum cum aduocatione Ecclesiae de S. this Advowson passeth not; for that, that it is mentioned after the grant, the reason of which difference they think to bee, because in the first case, the aforesaid Advowson appendent is parcel of the Mannor, which is not so in the last case in the 8. H. 7. 3. b. and likewise in the 10. H. 7. 19. a. it is said, that an Advowson appendent is a compound thing, to the composition whereof, divers things are requisite, all which things come mixed, make the Mannor and every of them is parcel thereof, for as Rent cannot be Land, so Land cannot bee an Advowson nec è converso, yet every of these 10, H. 7. 19 a, Keeble. things of diuers natures, make the Mannor, and are part of the Mannor, saith Keeble. And if a man demand a Mannor 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 Mannor, vpon the other part those which affirm that an Advowson is not parcel, but onely appendent to the Mannor, denieth that an Advowson lieth in tenor; 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, Courts, estreats, Wayfes, and the like, for( said they) if an Advowson appennant be by grant severed from the Mannor, 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, thē the Services should be increased, and so double Services should be due for one thing, for so he should haue the entire services for the Mannor, 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 Mannor, but rather appendent to a Mannor, for the better entendment whereof, the Law of England calleth those sorts of Inheritances which were annexed to others, and what the Logicians call Adjuncta, by these names, that is to say; Incidents, 4. E. 4, 36, b. appurtenants, appendents, and regardants, of which terms of Law( Regardant) is properly of Villeines, and the word( appendent) of a Common or an Advowson; of which two an Advowsan is separable, but a common appendent is not in any case separable, Lit. 184. for none can haue common appendent, but he onely 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 Mannor with his appurtentnces, 5. H., 7. 4. b may be intended of Advowsons, Commons, Villeines, waifs, Estrayes, and the like, which are said to be Appurtenances to a Mannor, likewise the word Appurtenant may be applied to a Court, messsage, or garden, that are said to be appurtenant to the messsage, the word incident 21 E. 4. 32. b 19: Ass 10 properly signifieth those things annexed which are not known by the precedent names 8. H. 7. 6. 1. E. 4 10, a. 18 H. 7 12, b 11, H. 6. 81 21. ass. 53 of appurtenants or appendents, and yet are notwithstanding annexed to other Inheritances, and in such sort a Court-baron is incident to a Mannor, a Court of Pipowders to a faire, fealty to Homage, homage to Escuage; so likewise Br. incid. 34 a Corrody is incident to a Foundership; and a gain, of those some are seuerable, as the Corrodie from the Foundership, some are in seuerable, as the Court-barron from the Mannor, except onely in case of the King, who hath power 12. E. 288. to sever them. But that is called a part or parcel, which is a portion, and required to some composition of entire and compound things, as the demeans and services are part of a Mannor, the glebe and the tithes are part of the Rectory, so that these are not to be called Incident, appendents, Appurtenances, but parts and portions of these compound things, of which they are said to be part, parcel, or portions, and are required necessary, to the framing of such entire thing, of which they are parts and portions,& hereof it followeth that an Avowfon appendent is not any part, parcel or portion of a Mannor, no more then 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 bee no part but appendent onely, 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. 12, b. 22. H. 6. 33. a. which are to this effect, that an Advowson appendent may pass by the grant of a Mannor without saying( cum pertinentiis) in the case of a common person, and so likewise in the case of the King before the Statute of prerogatiua regis, proveth not that an Advowson is part or parcel of a Mannor, for this being a thing appendent may as well pass with the words( cum pertinentiis) as the things that are parts or portions of the same entire thing passeth. For if a man grant common of Estouers to Fitsh. 1. 8● be burnt in such a Mannor, of the grantee by the grant of the Mannor, this common passeth, without the words cum pertinentiis for by the feoffment made of the Mannor without deed, all appurtenances pass by Finchdens opinion, 44, E, 3, bred, 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, wee 5, H, 7, 37 b, say for that, that an Advowson appendent passeth by the grant of the Mannor it is no good consequence, for the reason aforesaid. The second reason answereth the difference 9, H, 6, 28, b, 33, 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 Mannor, for Prysot saith, that things in 38. H. 6. 38. a. gross or several being name 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 Mannor, the same is not any proof, that the Advowson is part of the Mannor, for the opinion of 19. E. 3. Fitzh. br. 884. Regist. 228. br. incid. 38 ston is, that by the Demesnes of a Mannor, or by the Demesnes of the moiety of a Mannor,( as the case is there) without the words( cum pertinentiis) the Advowson appendent cannot bee recovered. LECT. 8. If an Advowson appendent that consists of Demesnes and Services, shall be appendent in respect of the Demesnes onely, or in respect of the Demesnes and Services. AT this present it remaineth, to determine, if an Advowson appendent to a Mannor is appendent, in respect that it consisteth of Demesnes and Services; or if it shall bee appendent to a Mannor, in respect of the Demesnes onely, in as much as the Demesnes are one corporal Inheritance, and such part of the mannour, as onely lieth in manuel Occupation. This question was of late time largely disputed, and at the last, upon grand deliberation learnedly determined, in the Common Pleas, in a Quare Impedit, between Gyles Long plaintiff, and one Hening Patron, the Bishop of gloucester as ordinary, and Hadler as clerk, and the same is there among the rolls of Pasche 31. El. Rot. P. 39. 39. Eliz. Rot. 2024. Longs case, in come. bank. 2024. which I have set here necessary in brief, and being thus. A Feofement in Fee was made of the mannor 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 tenant of the same Mannor attorned to the Feoffee, then 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 bee said upon both parts. That it is appendent onely in respect of the Demesnes, those or the like authorities or reasons may be produced. It is said, that an Advowson appendent to a 5 E. 6. 70. Pl. 41. Dyer Mannor, cannot be appendent to a Rent, or Service of the same Mannor, but onely to the Demesnes, whereof onely if a man hath a Mannor to which an Advowson is appendent, and granteth the Demesnes cum pertinentiis, 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 Mannor, and black acre that was holden of the same Mannor escheateth, so that the same acre is become now parcel of the Demesnes of the same Mannor, if he that is so seisied of the same Mannor, grant all the Demesnes, excepting black acre, and the same Advowson, the Advowson is become in gross, and yet it is a Mannor notwithstanding, for now black acre is onely the Demesnes which together with the other services cause the mannor to continue, nevertheless the Advowson is become in gross, for that, that it was appendent onely to the Demesnes of the mannor, which were aliened, and cannot now bee appendent to black acre: because it was never before appendent to the same, in as much as appendancie is onely granted upon continuance and prescription, and not upon the same reason. If he that is seisie of a Mannor, whereof black acre is holden, and the same Escheateth, and he granteth the same black acre,( una cum Advocatione) the Advowson passeth not the appendent to the acre, but in gross, as aforesaid; but if in the two aforesaid cases, a man were seisie to a Mannor before the statute of Westminster the third, De quia emptores terrarum; with an Advowson thereto belonging, and give certain acres parcels of the Demesnes of the same Mannor to divers persons, to bee holden of the same Mannor, 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 Mannor: because it was appendent to the same Acres, before they were given to be holden of the mannor. If a man were seized of a Mannor 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 Mannor, if he had given the same acres of land to divers persons to bee holden of the same Mannor,( as he might then have done) and after the same acres of Land escheated, now are they parcel of the Demesnes of the same Mannour, although they never were so before,& after the Lord of the Mannor granted all the ancient and former Demesnes of the same Mannor, unless one acre, this acre and the other acres escheated maketh now the Demesnes of the same Mannor, and the Advowson appendent, is still appendent to the whole Mannor, but yet it was so appendent in respect of the one acre, that was parcel of the ancient Demesnes of the same Mannor, and if the Lord intend at any time to sever this from the Mannor, and still to keep it appendent to no acre, but onely to that which was parcel of the Demesnes of the Mannor, all which reasons prove that the Advowson is appendent more in respect of the Demesnes than otherwise. Of the other part, those cases prove that an Advowson appendent to a Mannor is not appendent to any part of the mannor, but to the entiretie, for it is an entire thing; and therefore if a man hath a Mannor to which an Advowson is appendent, if he enfeoff I. S. of the same Mannor, and maketh livery of the Demesnes, and before the Attornement of the Tenants, the Church becomes void, the Feoffee shall not present because he hath not the Mannor to which the Advowson was appendent; but if the tenants afterward attorne within six moneths, after the avoidance he may very well present thereunto. So likewise in the former case, if the Feoffor or the Estranger present before the Attornment of the Tenants, yet if afterward Attornment be had within the six moneths after the avoidance, the Feoffee may bring and maintain his Quare Impedit, and so recover his presentation, which proveth that the Advowson is appendent to the whole Mannor, as it is entire, and not by reason of the Demesnes onely, for the determination of the Law is this; It is true that the Advowson in such case is appendent to the entire Mannor, and not to any part thereof, during such temps, as it remaines a Mannor without alteration, or dis-joyning the Advowson from it; nevertheless, if you will dissolve the Mannor and sever the Advowson from it, and yet desire to have the same appendent, then it cannot bee appendent to any part of the Mannor, but onely to such Lands as were of the ancient Demesnes of the same Mannor; wherefore in the first case Judgement was given, that Iudgement. after the Attornment had, the Advowson passed to the Feoffee of the Mannor, as appendent to the entire Mannor, and that the Grant made in the mean time between the livery of the Demesnes, and the attornment of the Tenants, was void, and that the Advowson passed 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 latge; 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 then 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 wee 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 bee sundered in a wrongful manner, as by a tortuous act, that is to say, by Disseisin of the Mannor, to which it is appendent, or by a wrongful assurance as by discontinuance, or other wrongful disposition thereof. As for usurpation wee shall speak thereof in a place more convenient afterward at large; if therefore a man be disseised of a mannor to which an Advowson is appendent, and the Advowson becomes void the Mannor still remaining in the hands of the Disseisor, this was ancient Law as Bracton saith, that Bracton. lib. 2. fo. 55. C. 23. he should not have presented to the Advowson until he had recontinued or made his entry into the Mannor, because saith he, Quod sesinam habere non poterit quis de pertinentiis, antiquam acquiseret principal. But at this day the Law is contrary, so that if a man be seisie of a Mannor, and the entry of the Diseisse being lawful the Advowson becometh void, the Disseissee may present to the Church, before his entry into his Mannor, but if the Disseisor bee seisie of a Mannor 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 Mannor 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 Mannor, to which an Advowson is appendent and bee disseisied of the same Mannor and the Church becomes voided, and the Disseisor presenteth one that is admitted, Instituted, and Inducted, and so continueth person 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 Mannor, I may again present to the Advowson, because the former usurpation was a mean between the disseisin and the re-entrie, by which re-entry the Disseisors estate as well in the Advowson as in the Mannor, 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 mannor, 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 Mannor, here I shall bring my Quare Impedit and recover my presentation, before I enter into the same Mannor. And so much is said, where the 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 Mannor to which an Advowson is appendent, and be disseisied, if the Disseisor die seisied, and the Church become void, the disseissee shall not present to the Church, unless he first recover the Mannor. If Tenant in tail be seisied of a Mannor, to which an Advowson is appendent and maketh discontinuance of the same Mannor, and after dieth, if the Church become void the issue in tail shall not present thereunto, until he hath recovered the Mannor by Formedon to which the Advowson was appendent. Likewise if a man bee seisied of a Mannor in right of his wife, &c. and both discontinueth the Mannor with the Advowson, and the Husband dieth, if afterward the Church become void, the wife shall not present until shee hath recontinued the Mannor by cvi in vita, but forasmuch as the Statute of the 30. H. 8, 28. giveth in such case power to the wife, or her heires, to enter into the Land so aliened. The Law at this present day, must of necessity be taken, that the wife or her heires in the former case may present, without recontinuance of the Mannor, for that, that the same Statute ordained then, that such alienation, &c. feoffment act or acts, made or done by the Husband, shall not bee nor make in any manner any discontinuance thereof, or be prejudicial to her or her heires. 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 Mannor in right of his Wife, to which an Advowson is appendent, and giveth to an Estranger the same Mannor, or parcel thereof, with the Advowson in fee, and dieth afterward, the Church becometh void, and the Estranger presenteth, and then alieneth the Land to another in fee, 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. Quaere therefore in the 5. H. 7. 36. where it is holden that if there be Tenant in tail of a Mannor to which there is and Advowson appendent and he alieneth the Mannor, with the Advowson in fee, and the Discontinued granteth the Advowson to another in fee, severing it from the Mannor; the issue in tail shall not present until such time as he hath recontinued the Mannor, 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 Mannour to which an Advowson is appendent and discontinueth the same, and the Discontinuee granteth the Advowson to another in fee, and afterward re-enfeofeth the Tenant in tail of the Mannor, who death seisied of the Mannor, now his heir shall present to the Advowson when it becometh void; and if he bee disturbed he shall have a Quare Impedit, because he is remitted to the Mannor, and hath not any remedy otherwise to come to the Advowson. But vpon the other part if tenant in tail be seisie of a mannor 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 of the Advowson, for that, that his ancient right thereunto was 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 dieth; 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 mannor and not appendent. And so it was likewise before the said Statute of 32. H. 8. if a man bee seisie of a Mannor which is an Advowson appendent in right of his wife, and discontinueth the same Mannor, and after the Church becomes voided, and he presenteth to the Church by usurpation, and dieth; having issue by the wife, and the wife also dieth, the issue in this case is not remitted to the Advowson, for the reasons before shewed; hereof it ensueth likewise, as before partly hath appeared, that in all cases where there is a Mannor, to which an Advowson is appendent, and the Mannor 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 Mannor, to which the Advowson is appendent; and therfore if a man make a lease for life of a Mannor to which an Advowson is appendent, if the Lessee for life make a feoffment in fee, of the Mannour and Advowson; and after the Church becometh void, the Lessor may present to the Church, without any entry made into the Mannour, because his entry was lawful into the Mannour. 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 bee accomplished in the accessary, that is to say, in the Advowson before the same bee 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 re-entrie, or without entry into the same. LECT. 10. Of Advowsons in gross. 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 gross. 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 bee Patron of this by reason of any Land or Dotation, by which his patronage might be appendent, but onely by reason of the building, which being a patronage without Land, must of necessity bee 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 sundered 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 bee seisied of a Mannor, to which an Advowson is appendent and alien one acre parcel of the Mannour, and by the same dead, after granteth the Advowson, that the Advowson shall pass in gross; otherwise, he thought the Law to bee as if the feoffment were made of the entire Mannor; 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 Mannor to which an Advowson is appendent, and after granteth by his dead one acre parcel of the Mannor, and by another dead the Advowson, and delivereth both those Deeds at one time to the Grantee, although in construction of Law, both those Deeds are but one dead; yet the Advowson passeth in gross clearly, and not appendent to the acre. If a man be seisied of a Mannor with an Advowson thereto appendent, and granteth the Mannor to I. and S. excepting one acre, the Advowson not being specially spoken of, in the Grant, it still remaineth to this acre excepted; For saith Bracton, Si partem fundi dederit quis quamvis cum omnibus pertinentiis suis,& partem retinuerit, non propter hoc transfertur advocatio said cum donatore, remanebit licet minimam partem fundi retinuerit non enim transfertur cum aliqua parte fundi nisi ●pecialitur transfertur. If he which hath a Mannor to which an Advowson is appendent giveth one part of the Mannor, with one part of the Advowson to A. and the second part of the Mannor with the second part of the Advowson to B. and the third part of the Mannor, with the third part of the Advowson to C. in fee, yet notwithstanding this Division, the Advowson remaineth in common, appendent. If a Mannor to which an advowson appendent is belonging, descend to an heir, and if he grant the moiety or third part of the Mannor cum pertinentiis, no part of the Advowson passeth; but if he assign Dower to his Mother, of the third part of the Mannor, cum pertinentiis, she is hereby endowed of the third part of the Advowson, and may have the third presentment. If a man bee seisied of a Mannor or one acre of Land to which an Advowson is appendent, and maketh a lease of the Mannor or acre, for term of Life, excepting the Advowson, the Advowson is in gross, and cannot bee appendent to the reversion of the Mannor or acre. But if I lease the Advowson for term of life, reserving the Mannor in my hands, yet the reversion of the Advowson remaineth always appendent to the Mannor, or to the acre of Land. For if a grant be made by me of a Mannor or acre, with the appurtenances, the reversion of the Advowson passeth, for the reversion of an Advowson may be appendent to a Mannor or acre in possession, but the Advowson in possession cannot be appendent to the reversion of an acre or of a Mannor. Also, if a man hath a Mannor to which an Advowson is appendent and alieneth the same Mannor, and excepteth the Advowson, the Advowson is become in gross, and although he purchase the Mannor, yet is the Advowson still in gross; and cannot bee appendent. But in all these cases some are of opinion that although the Advowson bee excepted out of the grant of the Mannor, yet nevertheless, it is requisite to have a dead of such grant containing such exception, otherwise the Advowson will pass with the Mannor. LECT. 11. Of Advowsons partly appendent, partly in gross. 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 Mannor or of an acre of land, to which an Advowson is appendent, and leaseth the same Mannor or acre, excepting the Advowson, the Advowson is now become in gross, and yet after the lease is ended, shal bee again appendent as befoee. In respect of the person it may so happen, that an Advowson may be appendent in regard of a propietor thereof, and that in many cases. One case to begin with, is this, that if a man be seisied of a Mannor to which an Advowson is appendent, and an Estranger leauieth a fine of the same Advowson to him that is now seisied of the Manor and Advowson, vpon which fine the said counsee( being still owner of the Mannor and Advowson) granteth to the Counsor that he shall present to the Advowson every second avoidance, by this fine the Advowson remaineth inrespect of him that hath the Mannor, still appendent to the Mannor 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 Advowsow in gross. But( as he in the former case) he that was seisied of the Mannor had leauyed the fine,( and the Estranger so being counsee) and made such grant to the counsee to present at every second turn, the Advowson had been totally in gross; for by the counsance it had been wholly in gross, and severed from the Mannor. If three be seisied of a Mannor 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 Mannor, but if the third die, all the entire Advowson descends in gross to his heir, for nothing was in jointure but the Mannor 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, as the time of the death of the third Joyntenant, and also because they released their right before. If two Joyntenants bee seisied of a Mannour 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 Mannour, and ought to present every second turn, bring his Quare Impedit, he shall not say that he is seisied of the Mannour 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 Mannor with the moiety of the Advowson appendent. If a Mannor with an Advowson appendent thereunto, descend to two Coperceners, and they make such partition of the Mannour, and composition to present, although the composition be otherwise than of right is due, yet is the first presentation to belong to the eldest, and the second to the second Copercener, &c. and the Advowson remaineth still 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 Mannor 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 death, having four Daughters, who maketh partition of the manors, so that every of them hath a Mannor, 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 die, except she to whom the Mannor was allotted to which the Advowson was appendent, that the Advowson should be again appendent to the Mannor. If two Churches be, and the Advowson of the one is appendent to a Mannor, 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 Mannor, 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 the description of an Advowson, which word being there put in stead 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 bnfice 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 bnfice 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 bnfice, which notwithstanding the Patron cannot enjoy. Wherefore if the Nomination of an Advowson be granted habendum the Advowson, the habendum is sufficiently pursuant; for although it varie in name, yet it is all one in nature, so that the 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 it ensueth, that if a man grant to me an Advowson excepting the Presentation during his life, such exception is void and repugnant 38. H. 6. 38. b. 38. b. 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 bee of an Advowson, and he granteth to one by Fine the nomination of the Clerk to the same Advowson when it becometh void, that this Fine shall not bind the Issues, by the Statute 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 became 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 dieth, such fine shal 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 haue the Presentation, and another the Nomination, and so they may bee diuers distinct inheritances. As if I being seisied of an Advowson in fee, granteth to I. S. and his heirs, that he& 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 prsent to the Ordinary of the place to be admitted accordingly, into the Church. And a question hath been moved hereupon who 24. E. 3. 69 a. b. 14 H. 4 11. a. 1. H. 5 16. 5. E. 4. 123. a. 21. H. 6. 17. shall be said Patron of the same Church, some think that he that hath the nomination shall be Patron onely, and that he that ought to present, shalbe as servant to him that hath the nomination Therefore in the 14. E. 4. 26. the Iustices distinguished, that if one be seisied of an Advowson and granteth to I. S. and his heires to nominate at every avoidance to him and his heires a person to be presented to the same Church, which person so nominated, shal be by him or his heirs 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, notwithstanding this, because the election is in me which of the parties name shall bee presented and have the bnfice. If a man have the Nomination to a bnfice, and another the Presentation, and he that hath the Presentation granteth an annuity to a Clerk until he be advanced to a bnfice by the Grantor, if afterward the Church become void, and the Grantee bee nominated to the Grantor to bee presented over, who doth so accordingly, and upon this bee admitted, instituted and inducted, yet the annuity shall not cease, for that, that the Grantee was not thereunto preferred by the Grantor, although he presented him. Of the other part there is an authority, that if a spiritual man have the Presentation, and a Lay-man the Nomination, if the Lay-man nominate to the espiritual man a Clerk to bee presented over, who doth so accordingly, if before his admission the Lay-man nominate another to bee likewise presented, which the Spirituull man refuseth 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 seem in such case, that the presentation should bee made onely in his name, that 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, and not to him that hath the nomination; for the better reconciliation of those and the like authorities, Distinguendum est sic, that in respect it must be had of 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 his case requireth: In which writ his of Quare Impedit, shall bee this; Quam permittit ipsum presentare: but his Declaration shall be especial, that the plaintiff ought to nominate one, and that he ought to present him over to the Bishop, and that B. hath disturbed him of his nomination, and the writ to the Bishop shall bee a recovery to the plaintiff, Quod Episcopus admittat Clericum ad denominationem, &c. in respect of the Bishop that hath the presentation, he shall be said Patron; for if he that hath the presentation cannot varie from his presentation, the other shall not; yet if he that hath the presentation, and he that hath the nomination bee both Lay-men, then he that hath the nomination may varie 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 that hath the presentation onely presenteth to the Bishop, before the Bishop take benefit of the Laps, without any nomination of the other, the Bishop in this case ought 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 Fitzh. 33. b. 14. H. 4. 11. a. 21. H. 6. 17. a. Writ shall be Quod permat ipsum presentare, &c. 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 person nominated, or by presenting some other himself that is not nominated. If 24. E. 3. 69. b. he refuse to present him that is nominated to him, and svit be commenced without any actual presentation made by himself, then the Writ to the Bishop of him that hath the nomination shall bee, 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 svit is granted bee because the presenter that should present the person nominated, hath presented some other himself, without nomination, then 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 acrew 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 shal 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 bee presented, to whom the Presentation must bee made, and the manner thereof. BEfore hath been shewed what a Presentation is, and what is the effect and fruit of the Patronage; and finally, in what case the Presentation and Nomination differeth. At this time it resteth, how to prosecute the things incident to Presentation, and to make show who may present, what Parsons may bee presented, to whom the Presentation must bee made, and in what manner; But because no presentation can bee made unless to a Church or dignity, something shall be shewed, when they shall be void, and upon what occasion. An avoidance is in two sorts, actual in dead, destitute in Law, which is an avoidance de Facto, and avoidance de Jure. actual, is when the Church is actual in dead 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 person of him that occupieth in stead 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 voydance in Law, and voydance in dead; the first of which two, the espiritual Court hath to determine, and therefore the supreme head may so dispense there, that such avoidance in Law shall never come to bee avoidance in dead, 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 dead, 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 bee 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 bee, and that such sentence be notified to the Patron, otherwise Laps shall not incur against him. avoidance and Plenartie, are primativa contraria, which if they come to bee tryable by issue between the parties, they are tried by two distinct laws. Plenartie, 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 impanelled in a jury, notwithstanding if the issue bee 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 Deprivation, 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 ministery. IN the last Lecture or reading before, was shewed something of avoydances of Churches in general, now it remaines to pursue the particular means; that is to say, Death, Deprivation, Resignation, Creation, or session, and entry into Religion, of every of which, wee will speak something, as the cause requireth. 1 And first of all, concerning Death, Quae omnia solvit, 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 loseth the name of his first dignity,& 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, vpon which questions have been moved in the books of our Law, all which causes mentioned severally, may be reduced to three principal points; first, want of Capacity; secondly, Contempt; thirdly, Crime. As concerning the first, although by the Common Law, a Lay person bee presented, and Instituted, and Inducted, to an especial bnfice, which Curate is altogether uncapable of the same, yet the Church is not therefore to bee 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 adiudged void, and vpon 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,& afterward the Pope enabled the presence 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 vpon this be Admitted, Instituted and Inducted, and afterward a Qua. Imp. be brought against the Patron and the same Incumbent, whereof Iudgment is given by the default of the Incumbent, where indeed the Incumbent was never at any time duly summoned according to the Law, by reason of which Iudgment, the same Incumbent is removed, if up on this afterward, the said Incumbent by sentenc declaratory be deprived in the spiritual Court, for want of Capacity in suite 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 benefice 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 vpon the Iudgment given against him in the Quare Impedit by default; for that, that he was not summoned as aforesaid, he shall have Iudgment herein, and the same Deprivation had in the mean season in the spiritual Court, no Impediment thereunto; for that, that in the said suite of deceit the Incumbancie shall not bee in question, but onely the disturbance of the plaintiff, in the Quare Impedit, and so for incapacity. Contempt may likewise be a cause of Deprivation, as if the person or other Incumbent bee excommunicate, and he so remaineth in his obstinacy for the space of forty dayes, he is for this deprivable of his bnfice, and yet the Church is not void in dead, 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 for the Incumbent, who for all the sentence of Deprivation for his contempt had, he shall hold his bnfice; 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 bnfice, once, in our Books, worthy of Deprivation, likewise schism 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 bee 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 three, whereof is bread 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, onely 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( vpon 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 vpon 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 to say, 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 shewed 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 propri Spontania refutatio, or whereas Resignation is the voluntary yielding up of the Incumbent( into the hands of the Ordinary) his interest and right that he hath in the spiritual bnfice, to which he was promoted. Of which the matter or subject is the spiritual bnfice, as promotion ecclesiastical. The form is the manner how, and with what words or due Circumstances it is or should be accomplished. The final Causes or effects hereof, is either thereby to make the Spiritual bnfice void and destitute of its Incumbent, or utterly to anient and totally to extingish such spiritual promotion. The efficient Causes are the persons that resign, and the persons to whom it is or ought to be resigned. As concerning the matter; this onely may suffice to be observed, that all spiritual Dignities presentative may properly be resigned, although they be abbeys, Priories, Prebends, Parsonages, or vicarages, 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 bishoprics at this day be resigned, &c. into the hands of the King as supreme Ordinary of the Church and rightful Patron of the same bishoprics. 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 Nat. Br. fol. 273. F. or S. The words of chief effect in such Instrument of Resignatino, 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 Prebendarie to the King, to be an effectual Resignation in the form of these words following, that is to say. Noverint me A. &c. ex animo deliberativo, certa scientia& mero motu,& ex quibus dam causis iustiis& rationalibus me specialiter monent, vltró& sponte dedisse serenissimo Domino nostro Ed. 6. Angliae, &c. supremo Capiti totorum Prebendarum svorum ac omnia maneria terras, tenementa possessiones& hereditamenta quecunque, tam spiritualia quam temporalia, ac omnem plenam& liberam facultat dispositionem authoritat.& potestat. dictae prebendae pertinen. spectan. appenden. &c. habendum& tenendum eidem Rege Hereditor.& Successoribus suis, ad eius vel corum proprium vsum, &c. As touching the efficient causes of Resignation; as first, the person that resign, if he bee not but onely Admitted and Instituted, although as concerning the spiritual Function he be a person before Induction, yet because no come. 126. part of the Free-hold of the spiritual bnfice is transferred to him, but by the Induction, he cannot until after the Induction, if the King bee Patron, make any good and effectual Resignation; as therefore, Renuntiatio respisit plerumque 21. E. 3. 5. a. ius quesitum, ac repudiamco pertinet ad ius 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 bee 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 onely purposed to avoid the Church, and to cause the Patron to present again, then it ought to bee done to the ordinary to whom of right the Admssion 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 compellable to give notice to the Patron of such Resignation, nor can he or any other ordinary collate vpon 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 haue 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 Iudgement and opinion I hold too 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 than at any time Lay persons could bee permitted to do. The final effect which consisteth in the end, wherefore Resignation was ordained, wee have heard to bee two-fold, the one to adnihilate the spiritual promotion, the other to make it void and fit for no Incumbent; of the first, wee have sufficiently spoken before, and the use of the other is manifest by those authorities subsequent. A Prebend maketh a Lease for yeares rendering rent, and after resigneth it, it is holden 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 person resign after he hath made a Lease for yeares, the Lease is avoided. Likewise, if a person permute or change his bnfice, which indeed cannot bee accomplished without Resignation, the Charge or Grant made by such Incumbent for yeares, is utterly void. If a person 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; that 14. H. 8. 8 a. if a person charge a glebe, and after resigneth or dieth, the charge is avoided. A recovery was had against a person in an action of Debt, and in a Fieri fac. thereupon the sheriff returned, that the Defendant was Clericus Beneficiatus& non, &c. 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 bnfice upon any process awarded to him. But if the Incumbent that so chargeth, bee 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, then 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 person to relinquish and surrender their function, Conscientia criminis, debilitas corporis, defectus scientiae, malitia plebis, grave scandalum,& irregularitas personae. Lastly, let us consider, that Resignation is deemed in the Law totally to bee the act of the party, and therefore if any Incumbent 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 Defendant upon the same reason, is the Law; that if any action bee brought against any Incumbent, that may charge him in respect of his several promotions, his resignation( having the same svit; 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 voided 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 president. Whereupon also ensueth the form of Presentation in this manner. In Dei nomine, Ego H. W. nunc Rector Ecclesiae de P. London. Diocesies& prius Rector Ecclesiae de L. c. Dictae P. Diocesies protestor dico& allego in hiis scriptis quod si contingit quod hujusmodi Ecclesia mea, 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 juxta Canonicas sanctiones& protestor insuper quod non intendo nec volo ab hujusmodi protestatione seu affectu ejusdem recedere aliqualiter in futurum, said eidem protestationi& contentis in eadem volo& intendo in futuris temporibus firmiter adhaerere, juris beneficio in omnibus semper solvo, &c. But to what purpose Protestation should seem in our Law, I cannot perceive; for that, that it appeareth by the book in the 45. E. 3. and 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 onely elected, but consecrated Bishop, or Arch-Bishop. By the former Dignities of such consecrated, the benefice 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 person 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 avoidance is not before Consecration or Creation, nor before Consecration is he that is promoted, deemed or called Bishop, or Arch-Bishop: as appeareth by these 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. a. 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 person 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 and lastly, Induction. So in the promoting of a Bishop or Arch-Bishop, 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 Covent, where they being as dean and Chapter, as in every of the Sees Cathedrall of Canterbury, Worcester, and Norwich, in which Churches the Prior and Covent was till the dissolution of Monasteries, at which time the same Priories were dissolved, and in stead of them in every of the same Cathedrall Churches, a dean and Chapter hath been by private Acts of Parliament erected. But in some other Cathedrall Churches, the Election hath been both by dean and Chapter, as of Wells, and by the Prior and Covent at Bathe; and in the See of Coventry and Lichfield. And in some other Cathedrall Sees, 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 Christs Church, and the dean and Chapter of Saint Patricks joined in election, and both of them used to confirm the grants of the Bishop, although Christs Church was known to be the more ancient Church to that See. As concerning therefore the Election of Arch-Bishops and Bishops, the Kings of this realm of their prerogative royal,& being immediate Patrons of the same Cathedral Church, in ancient time gave and bestowed of their imperial Jurisdiction, archbishoprics and bishoprics, 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 Arch-Bishop, 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 Gray, one of the Bishops in this realm for their Arch-Bishop, 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 Arch-Bishop Stephen Langhton, then 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 onely the whole Land was interdicted and so remained five yeares. 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 dayes to take it again at the Legates hands,& 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 Kings prerogative and the loss therof, 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 Kings 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 nonabilitie to refuse him. The third is Consecration, which was performed by the Bishop and two other Bishops at the least of the same province where the bishopric then was, being thereunto appointed with the use of certain ceremonies, as beatitudes, holding of the Bible over the head of the person to be consecrated, laying on of their hands upon his head, anointing, and other rites thereunto 38. E. 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. E. 2. Fitzh. 800. 2. E. 3. Fitzh. bre. 250. 21. E: 3. 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 person 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 bee known, that all things belonging to the episcopal function or ministery, are to bee 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 Diocesian of the clergy, ranted upon the bishoprics of his diocese, called therefore by the Common Law Census Cathedraticus. Notwithstanding, the King may restore to 41. E. 3. 56. 46. E. 3. 32. a. him his Temporalties after confirmation and before consecration, if so it please his Highnesse, but this is De gratia& non de jure. But after Consecration, he was holden in all respects a perfect Bishop, and all his former dignities thereby were avoided, for although by Confirmation spiritual conjugium 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 therof, but if after consecration, and before he sue for the Temporalties out of the hands of the King, the Free-hold bee in him or not, is diversely taken in the 38. E. 3. 90. b. 5. Notwithstanding, the Metropolitan ought 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 person, the Confirmation resembleth the Admission of a person, the Creation resembleth the Institution of a person, and the Installation or the Inthronation the Induction of a person, yet in many other respects they differ. And although after the abrogating of the Popes authority out of this realm, it bee 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 making the Incumbent thereof Bishop, until his Consecration, as well by rigor of ancient time, as by Statute. And therefore at the Common Law, if the King upon defect, or oherwise, give by virtue of the 25. H. 8. 20. by his Letters patents to any fit person, 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 bnfice had been elected Bishop and confirmed, and before consecration had, obtained of the Bishop of Rome a dispensation still to enjoy his former bnfice, 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 bnfice against the Patron by virtue of such Dispensation. So at this day, if an Incumbent of a spiritual bnfice, be elected and confirmed, and before he bee consecrated, obtain licence or dispensation of the Archbishop of Canterbury, to detain the bnfice incommendam; yet he shall he promoted to the same bishopric, although his licence never be enrolled in the chancery, according to the 25. H. 8. but onely enrolled 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 bnfice becometh not void, by the same consecration. Yet if the Incumbent of any spiritual bnfice 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 bnfice was actually, and in dead 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 bnfice, 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 recognized by the Statute of the 25. H. 8. to bee 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, bee 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.