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 hee labou­reth in vaine, that seeketh to apprehend the knowledge of the accident, which is ig­norant of the substance: and seeing nothing setteth out the nature of the thing, but the Description and Definition, and [Page 2] that Omnis quae à ratione suscipitur, de re aliqua, Tull. Offic. 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 beeing knowne, wee may the better obserue, the cohe­rence and congruence of this kind of Lear­ning.

An Advowson therefore generally conside­red,Quid. is a right that a man hath, to preferre his friend, or any fit person, to promotion Presenta­tiue, or Donatiue.

This Definition is generall, 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, lyeth not onely of Dignities Presentatiue by the course of the Common Law, but also of promotions Dona­tiue by this Statute: As Chaunteries Dona­tiue, * Free chappels, &c. Also it lyeth, of aFitz. N. Br. 30. Ibid. 33. a. 31. E. Ib. 349. E. Subdeaconship, or Hermitage, which also may bee Donatiue, 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 consueuerunt; Yet neuerthelesse, I read that a Quare Imp: was maintained of a Chappell, by the common Law, but such a Chappell (perchance) was presentatiue, and not Donatiue. Promo­tions presentatiue (whereof the Writs are men­tioned [Page 3] in the Statute) were maintained at the Common Law; as Churches, Chaunteries, and Chappels presentatiue, and such like.

And therefore as the afore-specified Definiti­on, or Description is generall, and appliable to both: So are those subsequent, more properly to be applyed to Churches Advowsons, in which are Cures of Soules.Summa ho­stensis de iu­re patrono. Sūma Au­glic eod. tit. Súma Sil­uestrine tit. Patronatus.

An Advowson, or as the terme, Jus Patronatus est potestas presentandi aliquem instituendū 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, & vtile.

In effect this: A Patronage, or an Advowson, is a right to present to the Bishops or Ordinarie a fit person, by him to be admitted and Institu­ted into a Spirituall Benifice when it becom­meth voyd: And hee 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, fic patronus Ecclèsiam, de non esse, de ducit ad esse.

Hee is called of Old Glanvile, Advocatus; as that he should say, an Advocate of the causes of [Page 4] the Church, and therefore the inheritance is cal­led Advocatio, or Advowson, or is deuised De­vocando: for that, that the Patron hath power, for the presentment of a fit person, by the name of his presentation. And heere by the way, let no man thinke, that I thrust my selfe in messem alienam, and to borrow of the Cannonists, as well now the Description and Etimologie 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 Lawes, that is to say; the Law of holy Church, and our Lawes, so that the true determination of such learning, is as he saith; Per ius mixtum, by both Lawes; that is, Ecclesiasticall, and Temporall: And therefore, when wee purpose to seeke the things in this kind of learning, wee must of ne­cessity bee beholden to them.

But to returne where wee digressed.

The materiall causes and subjects, in which this learning dependeth, are the things before mentioned. As Churches, Chaunteries, and Chappels presentatiue, and such like.

Churches are of three sorts

• Cathedrall,
• Collegicall, and
• Patrochiall.

A Cathedrall Church, is the seate or Church of a Bishop, and therefore hee onely may bee said Incumbent thereof.

Collegiall or Conventuall Churches, are such, as in times past, have beene in Prio­ries, Abbies, or such like, and are still in Col­ledges.

Parrochial Churches are well knowne, andIohan 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 soules. And it is common­ly called by the name of Rectorie, which is in­to two sorts divided, being either a Parso­nage, or a Vicarage. And so much briefely34. 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 usuall and ordinarie distinctions of Advowsons, to bee either appen­dant, or in grosse, or part appendant, part in grosse, either for a certaine time, or in respect of certaine persons.

The efficient Causes of a Parsonage, are

• 1. Ratione Dotationis.
• 2. Ratione Fundationis.
• 3. Ratione Fundi.

Ratione Dotationis, is, when he, or those from whom he derives his interist, endowed the same Church.

Ratione Fundationis, is, when he or his Ance­cestors, 2 or those from whom he claimes his in­terest, were founders of the same Church.

Rationi Fundi, is, when the Church was 3 built upon his or their Land, from whom hee derives his interest; or all three together, as appeareth by the verse, used amongst the Can­nonists.

The usuall cause or causes, why PatronagesSumma 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,
• &Vtilitas.

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 voyd, and of avoydance, our Law taketh notice, the same be­ing tryable thereby.

The manner and meanes how an Avoydance groweth, is either Spirituall, or Temporall.

1 Temporall, by the death of the Incum­bent. 1

2. Spirituall, and this is in divers manners; 2 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 Clarke, whereupon sometime ensueth a refusall, and thereupon, either notice, or no no­tice (as the case requireth) is to be given to the patron.

If the Clarke be admitted, then, hee 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 remisse, 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 Crowne, where it resteth; but if the [Page 8] Bishop take his time, then is his presentation a Collation, and in the right of the patron him­selfe.

2 The second effect of a personage, (which isOnus. Onus) resteth onely in the defence of the Chur­ches possessions, to which the Patron and Ordi­narie by aide prayer, are to bee called by the Incumbent, for the defence of the same, to avoid such charges and incumbrances, as are unduely laid thereupon.

As touching the third, which is Vtility, weeƲtilitas. have not any thing to doe with it in our Law; but wee must leave the consideration thereof to the Cannon law, for this Utility is imployed for the sustentation of the patron; for if hee or his posterity being patrons doe 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 suit against the Ordinary, for either not doing, or doing his Duty unduly.

In every action brought against him that pre­tendeth possession, it is to be intended, that ei­ther he is lawfully or unlawfully possessed.

The unlawfull possessor, is the usurper, against whom onely lyeth three Writs which the Sta­tute speaketh of: namely, One of the right, as the writ of right of Advowson, and the other two of the possession, as a Quare Imp: and Dar­raigne presentment.

Against the lawfull possessor, lyeth the writ of33. 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 lyeth for the issue in taile13. 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 Doner in the reverter; for that, that if the Advowson be in grosse it cannot properly be discontinued, and being appendant it it to be re­continued by the same meanes, that the land to which it is appendant, is to be recovered.

The Incumbent as touching his right for his 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 doe come into the same Church, by course of the Law, so that the patronage commeth into debate, there lyeth a spoliation, it being a suit in the Spirituall Court.

LECT. 2.
The right that both the Patron and Ordinarie hath joyntly to intermeddle with the Church.

IN the former Lecture, or Reading, having delivered in the project, a Discourse of Advowsons, briefely 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 poynted at, with a more large and am­ple explication.

First therefore, it is to be considered, that in every Benefice three persons have interest. That is to say, the Parson hath a Spirituall possession. The Ordinarie to see the Cure served: And the12. 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 authoritie onely, but a right, intetest, or an Inheritance: The word Ius or Right, is diversly intended,Com. 284. a. sometimes strictly, to signifie what is left a man, when that, that was once his owne is wrongful­lyCom 487. b. taken from him, as by Disseisin or such like.

In which sence, the word Droit and Tort are privatè opposita, and is thus devided; to bee ei­therBracton Ius. [Page 11] right of Action, or right of Entrie; some­times in a more ample signification, as Ius ha­bendi, jus possessendi, jus disponendi, by which occasion I purpose at this time to discusse, whe­ther the Patron and Ordinarie have right in the Rectorie or Benefice, and what manner of right it is that they have; their right is called Collate­rall, as wee read, and not Habendi, nor possessen­di, nor retinendi; for none of them, can have, retaine, or possesse the Church or Rectorie, but their right is, Ius Disponendi, wherein everie of them hath a particular Charge to the possessions of the Church, so free as that hee may maintaine such a one as is thereinto to bee presented.

That they have a kind of Disposition in them, it2. H. 7. 36. Ratio 1. is proved by many reasons: 1. No charge can be founded to be laid upon the Church in perpetui­tie: to bind their successors, but the Patron and Ordinarie must be made parties thereunto as all our books agree, & Littleton gives a notable rea­son for it. Which is, that if the Charge be per­petuall, the consent of all three ought to concur, of which ensueth thus much, that if a writ of an­nuitie be brought against the parson, & he pray­eth in aid of the Patron & Ordinarie, & the Pa­tron maketh default, and the Ordinarie appea­reth, and confesseth the action; or if the Ordi­narie12. H. 8. 7. b. make default, and the patron appeare, and confesseth the action, that this annuitie shall not [Page 12] bind the successor: but if they both appeare and one of them confesse the action, and the other saith not any thing, it shall bind the Rectory in perpetuity. For Qui tace [...] consentire videtur. But if the Parson onely with the consent of the Or­dinary for tythes 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 2 Parson, patron and Ordinary shall binde in like manner as their intrest is. But if a man have an Advowson for yeares, and the parson by the con­sent of such patron and Ordinary, grant rent charge in fee, if the parson die within the terme, 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 intrest of the patron.

And therefore if two joyntenants in com­mon, or parceners be of an Advowson, who agree­eth to present by turne, if the parson joyne in grant of a rent charge in fee, with one of them, the parson shall bee charged and also his suc­cessors (alterius vicibus) for ever; because, those successors (that commeth in) by him that made [Page 13] the Charge, shall be subject to it only, and those that commeth in by the presentation of the Pa­tron, that neither joyned nor confirmed, the same shall hold their land discharged for ever.

Also, such Annuitie with which the Rectorie is charged, doth not properly charge the Land but the Parson; for, if the Grantee enter into any part of the Gleebe, hee shall not suspend the rent or annuitie.

And if the Parson, Patron, and Ordinarie, joyne in a grant of an Annuitie to S. H. and his heires, except they speake of the successours of the parson, and that the same be granted for the parson and his successours, this cannot bee good longer than for the time, that the parson that granted the same, continueth Parson; for an Annuitie is nothing but a parsonall Dutie, and no otherwise. And if such an Annuitie be gran­ted21. H. 7. 4. a. over, it is not needfull to have Atturnment; all which proveth, that the same chargeth not the land, but the parson; yet neverthelesse, the parson is charge, for if the Grantor assigne or be removed by any meanes whatsoever, the charge followeth not his parson, but resteth upon his Successours, and the Jurie may bee taken of the Towne where the Church is, which proveth that such grant chargeth the parson in respect of the Land.

Moreover, when the Patron and Ordinarie confirmeth the grant of the parson, it is requi­site [Page 14] that the Confirmation be made during such time, as he is Incumbent that made the Charge; for if hee dye, be removed, resigne, or other­wise be deprived before the confirmation, such Confirmation is voyd notwithstanding.

If an Incumbent grant rent charge, to begin after his death out of his Rectorie, and the pa­tron and Ordinarie confirmeth the same, this is good for long time as it is granted.

The second principall Reason, to prove theRatio 2. interest they have to the Church or Rectorie, is,31. E. 3. Graunt 90. Annuitie. that all three may charge the Church in perpe­tuitie, so may the patron and Ordinarie doe onely in time of vacation, which charge shall bind the Successor for ever. Because none hath intermeddling with the Rectorie, but the Gran­tors aforesaid.

The third principall reason; is this, that as theRatio 3. patron and Ordinarie in time of vacation, mayFitzh. Re­lease, 57. Jur. ven. 6. 33. aide le Roy, 103. charge the Church in perpetuitie, so they may make a release, by which any annuitie that char­geth the Church or Rectorie shall bee extingui­shed, even in the time of vacation.

Also, if a man hath an annuitie out of the7. 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 voyd, 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 Ordinarie, such release shall not discharge [Page 15] 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 severall; Moreover, that Interest that the Patron and Ordinary hath in the Rectory, is but Collaterall and jus disponendi, and no otherwise, as hath beene formerly said.

For if an Advowson discend to an Infant, and the Incumbent be impleaded in a writ of Annui­tie, and prayeth ayd of the patron and Ordina­rie, and for that, that the patron is within age, likewise prayeth that the Parol may demurre un­discussed during his nonage, this shall not bee granted; but the Infant in such case shall bee ousted of his age, because the charge lyeth upon the parson, and not upon the patron, or Ordina­ry, who are not at any time to enjoy the Rectory themselves, but onely are to have the disposition7. H, 4. 16, a. thereof.

Finally, to prove that it is meerely Collaterall: If the patron and Ordinary doe 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 parson; because neither the patron, nor the11. 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; neverthelesse, such assent ought to be by writing.

LECT. 3.
The severall Intrests of the Patron and Ordinarie, and what it is.

IN the Lecture next before, I have set forth to you the right that both the Patron and Ordinary hath joyntly to intermeddle in the Church: Now it remaines likewise that I declare their severall interests: Therefore at this pre­sent, I intend to deliver something touching the Collaterall interest of the Patron sole, and after to examine what manner of inheritance an Ad­vowson is, and so to referre the intrest of the Or­dinary sole to a more convenient place when as we shall come to speake of Admission and Insti­tution.

What Collaterall Intrest alone, the Patron hath in the Church, may in briefe thus bee deci­phered: first, by the Common Law, (before the Statute of Westminster second) as hee ought by the opinion of some men, to bring his Writ of Advowson of the fifth part, or any lesse part of the Tythes and oblations of the Church in any suit of Iudicavit, attempted against the presenterFitzh. 30. b. or Incumbent, that hath sued in the Spirituall Court for the recovery of the same, and hath cau­sed the Patronage in this respect, to come into [Page 17] question, or as some men thinke he might have had his Writ of Heres, as a Precipe 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 lesse part than of the fourth part of their Tithes; so that the Statute in this behalfe, was but a restraint of the Common Law: Which argueth, that the comparing of the Rectorie, tendeth Collaterally to be an im­peachment and prejudice to the Patron him­selfe, and so importeth a Collaterall Intrest that the Patron hath to the Church. Againe, by the graunt of the Church the Advowson passeth; wherefore Herle sayd in the first part of Ed. 3. That it was not long since, when men knew notCom. 1 57. what an Advowson was nor meant, but by the Graunt of the Church, they thought the Ad­vowson to be sufficiently conveyed in the Law, For, said hee, when they purposed to assure an Advowson, their Charter specified it in the guift of the Church.

Moreouer, the King being Patron, hath often ratified and confirmed the estate of the incum­bent45. E. 3. 19b in a Rectorie, that an vsurper had presen­ted; by meanes whereof, he cannot remoue the32. H. 6. 32 a. 7. H. 4. 13, b. same Incumbent, unlesse for some cause hee re­peale his Charter of confirmation.

Notwithstanding, if the King recover by a Quare Imp: and after confirmeth the estate of [Page 18] the Incumbent, that the usurper presented, byFitzh. fol. 34 f. 9, E. 3. meanes whereof, he cannot be removed; at the next Avoydance the King shall present, for the judgement given for him was not at any time executed, which also proveth the Collaterall In­terest that the Patron hath to the Chutch; for no parsons can lawfully confirme, but such as have right to the thing confirmed.

Ancient Books have held, and that not with­out43. 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 it selfe, to which it is granted, and to which it is a Collaterall Interest (as hath beene said) that it should passe by Live­rie of seisen, made at the Ring of the door of the Church; and although by such meanes it passe not at this day, being meerely a thing that lyeth in Grant; yet the same proveth the Collaterall Interest of the Patron to the Church; for this o­pinion holden in the Bookes, is granted for the like reason.26. H. 8. 2. a 33, H. 6.

In a Writ of right of Advowson, the Parson shall bee summoned in the Church, or at the doore of the Church: And if a villeine purchase an Advowson in grosse, (Littleton saith) full of an Incumbent, the Lord of the same villein may come to the same Church, and there claime, and the Advouson shall be in him; All which things added to the former, sufficiently proveth the Collaterall Interest that the Patron hath to the Church.

LECT. 4.
What manner of inheritance an Advowson is.

WEE are now to consider, what man­ner 4 of Inheritance an Advowson is; wherefore let us consider, that everie Inheritance is either: Hereditas

• Corporata, or
• Incorporata.

Hereditas corporata, is a Meadow, Messuage,Com. 176. v. Land, pasture, Rents, &c. that hath substance in themselves, and may continue for ever.

Hereditas incorporata is, Advowsons, Vil­leins, Wayes, Commons, Courts, Piscaries, &c. which are and may be appendant or appurtenant to Inheritances Corporate.

An Advowson therefore is Incorporate, of which a man may be seisied, though not of De­mesne, yet of Fee, and as of right.

And although great disputation have beene21, 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 bookes, whether an Advowson may bee holden or lye in tenure, yet the most authorities concurreth and are, that any Advowson either in [Page 20] grosse or appendant, lyeth in tenure, as well of a common person, as of the King. For a Cessavit lyeth thereof, and some have holden that the Lord of whom it was holden may distreine (ei­ther in the Church-yard, or in the Gleebe) the beasts of the patron onely, if they happen to bee33. H. 6. 35. b. 5. H. 7. 39. b. 15. H. 8. a. there found, 33. H. 6. Godred contrarie: but though the Law be, that there cannot be taken any distresse, yet the same makes not any im­peachment of the Tenure, and being parcell of14 H. 4. 2. b. a Mannor or appendant 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 hee purchaseth an Advowson, and this was holden good, sufficiently pursuing this licence, and therefore in the booke an issue was taken, if the same Advowson were holden in5. H. 7. 37. Or. 38, b, Capite; and therefore, if a man grant a Ward, or Omnia terra & tenementa, that hee 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 Precipe quod reddat lyeth verie well, and a Writ of Dower shall bee main­tained20. E. 4. 15. b of the same, by the wives of such as have such inheritance therein as giveth a Dower, as [Page 21] before hath been said, and so the husband of her5. 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 Courtesie, 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 bloud, by the maxime of possessio fratis, &c. But the same shall descend to the brother of the half bloud, unlesse 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 heire of the en­tire bloud.

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 seased 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 usuall difference taken, betweene 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 severall Incumbent to the Bishop, to be admitted into one and the same Church, for divers may be severall parsons, and have careFitzh. 3. b. 32. H. 6. 11. b. 14. H. 6. 15. b. Fitzh. 30. v. of soules in one parish, and such Advowson is a like in everie of those Patrons, but everie of their presentments is to the moitie of the same Church; and therefore it is called Advocatio [Page 22] medietatis Ecclesiae, or as the cause falleth out, Advocatio tertiae partis Ecclesiae, and the like.

But Medietas advocationis Ecclesiae, is after par­tition7, E, 3, 30, b. Fitzh 31 b. 14, H 6, 15, b. 33. H. 6, 11, b. 5, H, 7, 7. b. betweene 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 lyeth.

Also, if two patrons of severall Churches make14, 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 everie 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 diversitie is conside­red, but the Writ is generall, Presentare ad Ec­clesiam.

Lastly, it is to be considered, what temporall profits, value or commoditie, this kind of In­heritance is 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 reserved29, 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 [Page 23] shall not present to any Advowson; because5, 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 neverthelesse, because the patron thereby may advance his friend, it hath bin 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 Marke that the Church is worth per Annum xij d. So that the thing which of it selfe is not valuable, is by a secondary meanes made and esteemed valuable, because that other­wise this mischiefe should ensue thereof, which should be a losse without recompence.

1 By this it appeareth, that it is an inheritance Incorporate.

2 That it lyeth in Tenure.

3 That it passeth by name of Tenement.

4 That a precipi quod reddat lyeth thereof.

5 That both Tenant in Dower, and Tenant by the courtesie, and in some case a Possessio fra­tris, may be thereof.

6 That it is entire by nature, though by acci­dentall meanes 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 appendant 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 euery part deuided with a full Discourse; that thereby, what manner of right and inheritance an Advowson is, may be the bet­ter perceived.

Advowsons therefore, are either appendant or in grosse, or part appendant part in grosse.

An Advowson appendant, is a right of Patro­nage, appertaining to some corporall Inheri­tance; so that, hee that hath the same Inheri­tance, is thereby also intituled 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 alwayes with the Inheritance, to which it is appendant; vnlesse, there bee expresse no­mination onely by these words (Vna cum perti­nentiis,) except it be in case of the King, where the Statute Deprerogatiua Regis, cap. 15. pro­videth expresse words to make the same to passe.

The originall of Advowsons appendant to the [Page 25] beginning must be in this manner, sithence Pa­tronages were wonne and gotten as before hath beene delared; and that either ratione fundati­onis Com. 161. a dotationis or fundi, were (as it seemeth by all conformity of reason) the originall foundati­ons of Advowsons appendant; for when Man­nors were created, either the Land upon which the Church was built was land parcell of the Mannor, or honor to which it is appendant, and hee that was Donor thereof gave the same to build the Church upon, and that the Advowson of the same Church so built, should bee appen­dant to the same Mannour, which is ratione 5. H. 7, 6. fundi.

Or hee that was owner of the same Mannor or of any such corporall Inheritance, endowed the same Church with parcell of the land of the same Mannor, honour, or such like corporall In­heritance, and gave the same to the Gleebe, of such Church upon which the Advowson by or­dinance of the Ordinary, and by the consent and agreement of all others, whose consents were re­quisite in this behalfe, was at the beginning ap­poynted to be appendant to such Mannor, Ho­nour, or other corporall Inheritance, in recom­pence of such livelyhood, and dotation bestow­ed upon the Church.

And hereof it ensueth, that if at any time the5. H. 7. 37. a. 13, a. 11. E. 4. 11. v. 20. E, 4. 15. b. Church bee dissolved, the Gleebe and land upon which the Church was built, shall returne and [Page 26] escheate to him or them from whom it was de­rived and deduced.

And in like case, upon the dissolution of anFitzh. 33. k. Abbey, the same shal not returne to the founder of common right, unlesse some other ordinance be made to encounter the same.

1 Therefore to avoyd confusion in the con­sideration of Advowsons appendant; let us first see, to what sort of Inheritance Advowsons may be properly appendant.

2 Secondly, in what manner it is appendant, (that is) if it bee part or parcell of the inheri­tance to which it is appendant, or if as accident or necessary thereunto.

3 How it may be severed from his principall; and againe, by what meanes it may be thereunto recontinued againe.

As to the first, it may bee appendant properly 1 and originally, to things that are onely Inheri­tances corporall, that are compound: As to anCom. 170. 5. Honour, Earledome, ot such like; likewise to a Castle, more usually to a Mannor; all which10. H. 7. 19. principall things, that is to say the Earledome, 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 appendant to an Acre of Land, or to a Messuage, to a Rectory, Parsonage, Church, or such like; And so one Church may [Page 27] be appendant to another, of which we shall take occasion to speake in the Lectures following.

But at this present, let us see in what sort it may be appendant to a mannor.

Advowson that lyeth in one Countie, may be33. H 6. 4. b. lib. ult. 34. E. 3. Quare Imp. Fitzh. 10. appendant to a mannor that lyeth in another Countie; and how two or more Advowsons may be appendant to one mannor, may be mani­fested thus.

If hee that in ancient time was seisied of a mannor, that extended so large as it was divi­ded into divers parishes, the Lord of the same mannor, either gave out of the same mannor land to build, or to endow everie of the Chur­ches, and so everie of them might bee appendant to the same mannor.

How one Advowson may bee appendant to two mannors, may likewise thus appeare.

Suppose that A. bee seised of an Advowson of the Church of Dale, as appendant to the mannor of Sale, and that both those Churches by the Ordinarie, and by the consent of both9. 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 turne for ever; these Churches by this union and confederation are made one, and so the Advowson entire, and no moities as is be­tweene Coperceners, Joyntenants, and Tenants in common; and therefore it is appendant to both Mannors, for the Patrons severally presen­ting, [Page 28] shall present to the same Church as appen­dant to both Mannors, (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 turne commeth, as appendant to the Mannour of Sale.

Yet some are of opinion, and some authori­ties14. 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 severall; For if such Incumbent, which is presented after such union made, grant a rent charge out of the Gleebe, and one of the Patrons onely confirme, no Distresse (after the death of the Incumbent that granted the rent) can bee taken upon the Gleebe, that belongeth to the Gleebe of the o­ther Patron, to make the same subject to the charge in perpetuitie; for that, that hee confir­med not.

But if the Mannor of Dale bee holden of the32. H. 6. 64. b. Mannor of Sale, and to the Mannor of Dale is an Advowson appendant, and that the Mannour of Dale hath escheated to the Mannour of Sale, so that the Demeanes of the one is become par­cell of the Demeanes of the other; yet the Ad­vowson shall bee still said appendant to the Man­nor of Dale, as it was at the first; and the Man­nor of Dale shall continue still in reputation a [Page 29] Mannor, in respect of such things as are appen­dant thereunto.

The moytie of an Advowson may bee appen­dant33. H. 6. 11, 12. a. to a Mannor, or parcell of a Mannor.

Also, in the pleading of a case in Edw. 6. by6. E. 6. 74. b. 44. Dyer. Dyer, it appeareth that one fourth part of an Advowson was alleaged to be appendant to the one moitie of a Mannor, and another fourth part of the same Advowson was appendant to the other moitie af the same Mannor, and the other two parts were in grosse: yet neverthelesse, an Advowson (in everie 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 joyn in a Quare Impedit, because the presentation is a parsonall thing, and entire, wherein they ought to agree, but seeke 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 parcell, be­cause [Page 30] the Advowson is entire, and not severall, by reason wherof 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 ap­pendant to a Mannor, in like manner may the Advowson of a Priorie bee appendant to a Mannor.

LECT. 6.
To what things an Advowson may bee appendant secondarily.

IN the Lectures aforesaid, was shewed to what sort of Inheritances an Advowson may be appendant ori­ginally; Now it remaineth to shew to what things it may bee appendant seconda­rily.

An Advowson therefore cannot bee appen­dant41. 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 beene parcell of a mannor, or parcell of any Earldome, Castle, or such like Inheritance, to which an Advowson may bee appendant originally; But in what or­der the same may bee appendant to one acre,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 appendant, giveth certaine acres of [Page 31] the same Mannor, una cum Advocatione to ano­ther, in such case the Advowson shall not passe, to the grantee, unlesse the same be by Deed, and so the same shall bee appendant to the same acres.

So likewise, some hold opinion, that if a man17. E. 3. 45. 18. 19. 21. 22. E. 3 6. b 7. a. Thorpe. be seisied of a Mannor, to which an Advowson is appendant in right of his wife or joyntly with his wife, and maketh a feofement in fee of cer­taine acres parcell of the demeanes of the same Mannor una cum Advocatione, and dyeth; that the wife notwithstanding this, may present to the Advowson, before she recontinue the same acres, by Cui in vita; because as (they thinke) the same Advowson is not appendant to the same acres, and such alienation is not but during the life of the husband.

Neverthelesse, I doe not perceive any greatFitzh. 3 2, a. reason, why the Law should be so in such a case; for if a Tenant in tayle of a Mannor, to which an Advowson is appendant aliene some of the same acres parcell of the Mannor, together with the Advowson, although it bee without Deed, not­withstanding it is appendant to the Acres, and cannot be recontinued but by Formedon to bee43. 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 be­tweene them; and therefore if a man bee seisied of a Mannor to which an Advowson is appen­dant [Page 32] and make a lease for life of the same Man­nor, una cum advocatione, if the lessor enter into17. E. 5. Mombray. the same Acre of land for forfeiture, he hath re­continued the Advowson, as appendant to the same Acre.

An Advowson cannot originally bee appen­dantCom. 170. b. 16. H. 7, 13. b. & 9. b. to a Messuage, but secondarily it may; therefore if an Advowson be appendant to a par­cell of land, which was sometimes part of the demesnes of a Mannor, and such like, if a Messu­age be built upon the same parcell of Land, the Advowson shall be appendant to the same Mes­suage, and if the same Messuage fall or bee pulled downe, the same Advowson shall bee againe appendant to the Soyle, as it was before.

So likewise, an Advowson may by a seconda­ry17. E. 3. 51. a 30. E. 4. 6. b. 11. H. 6. 32. b meanes be appendant to a Rectory, for Vica­ridges being not first erected (in as much as the Substitute cannot bee before the principall) but5. 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 Benefices, to the houses of Religion, and Spiritual corporations, which were not of them­selves in all poynts fit for the function and cure of soules.

The reason is, because that the Advowson of a Vicarage should bee alwayes appendant to the Rectory of a parsonage, so that hee that [Page 33] is Parson, or Persona impersona, (as they call him) of this Church, is of common right Patron of the Vicaridge, of the same Church; except, some other seuerall ordinance at the beginning of the endowment of the same Vicaridge were made to the contrary.

And therefore, by the Graunt of a parsonage2. E. 3. Grants, 89. & 56. Dyer. 35, 7. E. 4. 61. a, 75, a: wtih all the hereditaments thereto belonging, the Advowson of a Vicaridge passeth too the Grantee.

In the same manner it should be, if the Vi­caridge were endowed, so there be a parson11. 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 Vica­ridge become voyd, and he that is Parson ha­uing the Advowson of the Vicaridge (as of com­mon right hee ought) present one too the same Vicaridge by the name of parson,11. H, 6. 18 & 32. b. who is admitted and instituted accordingly, by such presentation hath the same Vicaridge lost the aforesaid name, and is becommed a Par­sonage, tamen quere if the first Parsonage re­maine,11, H. 6. 18 & 22. and if one of those parsonages (if they both continue) be appendant to the other; but it seemeth by the Booke of 11. H. 6. that there should be but one parsonage, and the Vica­ridge extinct.

An Advowson of a Church or Chappell,8, H. 7. 16 Com. 169. b cannot originally bee appendant to another Church or Chappell; for that, that things of [Page 34] one nature cannot be originall appendant each to other. But notwithstanding, secondarily the Advowson of a Church or Chappell may bee ap­pendant to another Church or Chappell.

As if the Advowson of a Church or Chappell43, E, 3. 3 [...] a. Fitzh. Qu. Imp. 13 bee appendant to one acre of Land, that was sometimes parcell of a Mannor, or such like; and after a Church or Chappell be built vpon it, the last new erected Church shall bee appendant to the aforesaid Church.

An Advowson may be amortified to a Church22. E. 3. Fitzh. ayd le Roy, 103. or Chappell, and if it be recouered and lost by Default, the Parson thereof may haue a Writ of right.

And an Advowson may be parcell and part of a Deanerie, and if the same bee in any free-ChappellIbid. Fitzh. 103. of the King, if the Deane be implea­ded, he may of this haue ayd of the King. And thus much concerning Inheritances, to which an Advowson may be appendant.

LECT, 7.
In what manner Advowsons are appendant to a Mannor.

NOw it resteth, that I determine in what manner Advowsons are ap­pendant. And first of all, if the Ad­vowson 1 be part or parcell of the In­heritance, to which it it is appendant and whe­ther it bee onely accident or incident there­unto.

Secondly, if an Advowson be appendant too a 2 Mannor, that consisteth of Demeanes and servi­ces, in respect both of the demeanes and serui­ces, or if it shall be said appendant to a Mannor in respect onely of the Demesnes, in as much as the Demesnes are one corporall Inheri­tance, and such part of the Mannor as onely ly­eth in manuell occupation.

1 As concerning the first, the Authorities of our Bookes are diuersly deuided; some tending to one effect and some to another, our best course therefore is to consider the Arguments, and to giue censure with that which seemeth most agreeable with Law. Some hold that an Advowson appendant to a Mannor and the like, is eyther part or parcell of a Mannor, Honour, &c. or other Inheritance to which it is appen­dant. [Page 36] And they ground themselues upon the au­thorities of 43 R. 3. 22. a. b. where iit was adjudg­ed that the graunt that King H. the 3. made to The­nel Ratio. 1. Marshall of a Mannor, to which an Advow­son was appendant, 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 parson at this day, although in the 8 H. 7. 4 & the opinion of some others, in the 5 H. 7. 38. b. be against it, upon which they inferre; that an Advowson is parcell22. H 6. 33 lib. fund leg. 70 of a Mannor, for so expressely is the opinion of others in the same booke of 5. H. 7. 38. b.

Secondly, in the 9, H. 6. 28. b. and in the 38.2. Ratio. 2. H. 6., 33. a. in the Abbeyes of Scyons case, the difference is agreed for Law, that if the King be seisied of a Mannor to which an Advowson is appendant, and granteth the same Mannor, and9. H. 6. 28, or 8. b. in the grant the words of the Pattent 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 com­prehended38. 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 appendant habendum cum aduocatione Ecclesiae de S. this Advowson passeth not; for [Page 37] that, that it is mentioned after the grant, the rea­son of which difference they thinke to bee, be­cause in the first case, the aforesaid Advowson appendant is parcell of the Mannor, which is not so in the last case in the 8. H. 7. 3. b. and likewise in the 10. H. 7. 19. a. it is said, that an Ad­vowson appendant is a compound thing, to the composition whereof, divers things are requi­site, all which things com mixt, make the Man­nor and euery of them is parcell thereof, for as Rent cannot be Land, so Land cannot bee an Advowson nec è converso, yet euery of these10, 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 WritRatio. 3. and an Advowson is appendant thereunto, hee ought to make an exception of the Advowson, which seemeth to prove that an Advowson is parcell of a Mannor, vpon the other part those which affirme that an Advowson is not parcell, but onely appendant to the Mannor, denyeth that an Advowson lyeth in Tenure; for that, that only the principall thing is holden, and not the thing appendant to such principall; As5 H. 7. 36, a & 38. a Leates, Courts, Estreates, Wayfes, and the like, for (said they) if an Advowson appennant be by grant seuered from the Mannor, it is holden by such and the same seruices as it was holden by before, for that, that if the Advowson be seue­red it should be holden pro perticula, thē the Ser­vices [Page 38] should be encreased, and so double Servi­ces should be due for one thing, for so he should haue the entyre seruices for the Mannor, and also Service for the Advowson beeing seuered, which is repugnant to reason.

In this variety of opinions; I thinke it were most conformable to reason, to say that an Ad­vowson is not part nor parcell of a Mannor, but rather appendant 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, appendants, and regar­dants, of which termes of Law (Regardant) is propperly of Villeines, and the word (Ap­pendant) of a Common or an Advowson; of which two an Advowsan is separable, but a common appendant is not in any case separable,Lit. 184. for none can haue common appendant, but hee onely that hath the Land to which the common9. E. 4, 39. b 5, H. 7. appendant is appendant. 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, Waifes, Estrayes, and the like, which are said to be Appurtenances to a Mannor, like­wise the word Appurtenant may be applyed to a [Page 39] Court, Messuage, or Gardein, that are said to be appurtenant to the Messuage, the word inci­dent21 E. 4. 32. b 19: Ass 10 properly signifieth those things annexed which are not knowne by the precedent names8. H. 7. 6. 1. E. 4 10, a. 18 H. 7 12, b 11, H. 6. 81 21. ass. 53 of appurtenants or appendants, 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, fealtie to Homage, homage to Escuage; so likewiseBr. incid. 34 a Corrody is incident to a Foundership; and a gaine, 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 pow­er12. E. 288. to seuer them. But that is called a part or par­cell, which is a portion, and required to some composition of entyre and compound things, as the Demeanes and services are part of a Man­nor, the Gleebe and the Tythes are part of the Rectory, so that these are not to be called Inci­dent, Appendants, Appurtenances, but parts and portions of these compound things, of which they are said to be part, parcell, or portions, and are required necessarily, to the framing of such entyre thing, of which they are parts and porti­ons, & hereof it followeth that an Avowfon ap­pendant is not any part, parcell or portion of a Mannor, no more then a common is part of that thing to which it is appendant, so that the word it selfe of an Advowson appendant is sufficient [Page 40] to set forth and declare the same, to bee no part but appendant onely, as the words importeth.

Wherefore the first reason of the aduerse part1. Reason Answered. may thus be answered. The Bookes 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 appendant may passe by the grant of a Man­nor without saying (cum pertinentiis) in the case of a common Parson, and so likewise in the case of the King before the Statute of prerogati­ua regis, proueth not that an Advowson is part or parcell of a Mannor, for this being a thing ap­pendant may aswell passe 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 toFitsh. 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 feofment made of the Mannor without deede, all appurtenances passe by Finchdens opinion,44, E, 3, bre, 581, as Fitzh. abridgeth it, although it be not in the report at large, and for the argument of those in the time of Hen. the 7. before remembred, wee5, H, 7, 37 b, say for that, that an Advowson appendant passeth by the grant of the Mannor it is no good conse­quence, for the reason aforesaid.

The second reason answereth the difference9, 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 [Page 41] proofe that the Advowson appendant is parcell of the Mannor, for Prysot saith, that things in38. H. 6. 38. a. grosse or severall being named after the haben­dum, cannot passe with the first things specified in the clause of the Grant, but things appendant or appurtenant to the premisses of the Grant may very well passe; although the appurtenants be specified after the habendum.

As concerning the exception of an Advowson 3 Reason Answered. appendant to be made in the Demand of a Man­nor, the same is not any proofe, that the Advow­son is part of the Mannor, for the opinion of19. E. 3. Fitzh. br. 884. Regist. 228. br. incid. 38 Stone is, that by the Demesnes of a Mannor, or by the Demesnes of the moity of a Mannor, (as the case is there) without the words (cum perti­nentiis) the Advowson appendant cannot bee recovered.

LECT. 8.
If an Advowson appendant that consists of De­mesnes and Services, shall be appendant in re­spect of the Demesnes onely, or in respect of the Demesnes and Services.

AT this present it remaineth, to de­termine, if an Advowson appen­dant to a Mannor is appendant, in respect that it consisteth of Demesnes and Services; or if it shall bee appendant to a [Page 42] Mannor, in respect of the Demesnes onely, in as much as the Demesnes are one corpo­rall Inheritance, and such part of the man­nour, as onely lyeth in manuell 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, betweene Gyles Long Plaintiffe, and one Hening Patron, the Bishop of Glocester as Ordinarie, and Hadler as Clarke, and the same is there among the Rolles of Pasche 31. El. Rot. P. 39. 39. Eliz. Rot. 2024. Longs case, in Com. bank. 2024. which I have set here necessarily in briefe, 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 Reigne 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 voyde, 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 appendant onely in respect of the Demesnes, those or the like authorities or rea­sons may be produced.

It is said, that an Advowson appendant to a5 E. 6. 70. Pl. 41. Dyer Mannor, cannot be appendant 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 appendant, and granteth the Demesnes cum pertinentiis, the Advowson passe appendant thereunto; so like­wise, if he grant the Demesnes, excepting the Advowson, the Advowson is now becommed in grosse.

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 parcell of the Demesnes of the same Mannor, if hee that is so seisied of the same Mannor, grant all the Demesnes, excepting black acre, and the same Advowson, the Advowson is be­come in grosse, 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, neverthelesse the Advowson is become in grosse, for that, that it was appendant onely to the Demesnes of the mannor, which were aliened, and cannot now bee appendant to black acre: because it was never before appendant to the same, in as much as appendancie is onely granted upon continuance and prescription, and not upon the same reason.

If hee that is seisie of a Mannor, whereof [Page 44] blacke acre is holden, and the same Escheateth, and he granteth the same blacke acre, (una cum Advocatione) the Advowson passeth not the ap­pendant to the acre, but in grosse, as aforesaid; but if in the two aforesaid cases, a man were sei­sie to a Mannor before the statute of Westminster the third, De quia emptores terrarum; with an Advowson thereto belonging, and give certaine acres parcells of the Demesnes of the same Man­nor to divers persons, to bee holden of the same Mannor, if afterward such acres escheate, and the Lord granteth the residue of the De­mesnes excepting the acres so escheated, and the Advowson; the Advowson is still appendant to the same Mannor: because it was appendant to the same Acres, before they were given to be holden of the mannor.

If a man were seised of a Mannor to which an Advowson is appendant, and before the Sta­tute of Westminster the third were likewise so seisied of other acres of land in grosse, and not parcell of the same Mannor, if he had 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 parcell 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, unlesse one acre, this acre and the [Page 45] other acres escheated maketh now the De­mesnes of the same Mannor, and the Advow­son appendant, is still appendant to the whole Mannor, but yet it was so appendant in respect of the one acre, that was parcell of the ancient Demesnes of the same Mannor, and if the Lord intend at any time to sever this from the Man­nor, and still to keepe it appendant to no acre, but onely to that which was parcell of the Demesnes of the Mannor, all which rea­sons prove that the Advowson is appendant more in respect of the Demesnes than other­wise.

Of the other part, those cases prove that an Advowson appendant to a Mannor is not appen­dant 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 ap­pendant, if he enfeoffe I. S. of the same Mannor, and maketh Liverie of the Demesnes, and before the Attornement of the Tenants, the Church be­comes voyd, the Feoffee shall not present be­cause he hath not the Mannor to which the Ad­vowson was appendant; but if the tenants after­ward attorne within six moneths, after the avoy­dance 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 avoy­dance, [Page 46] the Feoffee may bring and maintaine his Quare Impedit, and so recover his presentation, which proveth that the Advowson is appen­dant 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 appendant 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; neverthelesse, if you will dissolve the Mannor and sever the Advowson from it, and yet desire to have the same appendant, then it cannot bee appendant 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, thatIudgement. after the Attornment had, the Advowson pas­sed to the Feoffee of the Mannor, as appendant to the entire Mannor, and that the Grant made in the meane time betweene the liverie of the Demesnes, and the attornment of the Tenants, was voyd, 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 appendant to the entiretie in the hands of the Feoffee.

LECT. 9.
How an Advowson may be severed from the prin­cipall, and by what meanes it may be reconnexed thereunto againe.

IN the two last former Lectures hath beene declared at latge; First, to what kinde of Inheritance an Ad­vowson may be properly appendant, and then in what manner it may be appendant: Now remaineth the third thing then treated of, that is to say, how it may be sundred from the principall; and againe, by what meanes it may be thereto annexed by entry or without entry into its principall.

It may be sundred either rightfully, or by a rightfull conveiance, of which wee shall speake more at large, when we declare the nature of an Advowson in grosse, and of that which is partly in grosse, partly appendant, whether it may bee sundred in a wrongfull manner, as by a tortious act, that is to say, by Disseisin of the Mannor, to which it is appendant, or by a wrongfull as­surance as by discontinuance, or other wrong­full disposition thereof. As for usurpation wee shall speake thereof in a place more convenient afterward at large; if therefore a man be disseised of a mannor to which an Advowson is appen­dant, and the Advowson becomes voyd the [Page 48] Mannor still remaining in the hands of the Dis­seisor, this was ancient Law as Bracton saith, thatBracton. lib. 2. fo. 55. C. 23. he should not have presented to the Advowson untill he had recontinued or made his entrie in­to the Mannor, because saith hee, Quod sesinam habere non poterit quis de pertinentiis, antiquam acquiseret principale. But at this day the Law is contrary, so that if a man be seisie of a Mannor, and the entrie of the Diseisse being lawfull the Advowson becommeth voyd, 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 ap­pendant, and the Church becomes voyd, so that the disseisor presenteth, whereupon the Clarke is admitted, instituted, and Inducted, it seemeth that the disseisee in this case shall not have his Quare Impedit, to recover his presentation, un­lesse he first enter into the Mannor to which the Advowson was appendant, and though hee en­ter, yet he shall be driuen to his action.

Yet if a man be seisie of a Mannor, to which an Advowson is appendant and bee disseisied of the same Mannor and the Church becomes void, and the Disseisor presenteth one that is admit­ted, Instituted, and Inducted, and so continu­eth parson sometime after, if afterward the Ad­vowson become voyd, now is not the Advowson so gained by such usurpation, but if that I that was deseisied enter into the Mannor, I may a­gaine [Page 30] present to the Advowson, because the former usurpation was a meane betweene the disseisin and the re-entrie, by which re-entry the Disseisors estate as well in the Advowson as in the Mannor, is clearely defeated. But it is other­wise of an Advowson in grosse, 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 appendant, and afterward the Church becomes voyd, 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 entrie of him that hath right is lawfull in the principall, but where the entry is not lawfull there he shall not present to the Advowson, unlesse recontinuing the principall; and therefore if a man be seisied of a Mannor to which an Advowson is appen­dant, and be disseisied, if the Disseisor die seisied, and the Church become voyd, the disseissee shall not present to the Church, unlesse hee first reco­ver the Mannor.

If Tenant in tayle be seisied of a Mannor, to which an Advowson is appendant and maketh discontinuance of the same Mannor, and after dyeth, if the Church become voyd the issue in tayle shall not present thereunto, untill hee hath recovered the Mannor by Formedon to which [Page 50] the Advowson was appendant.

Likewise if a man bee seisied of a Mannor in right of his wife, &c. and both discontinueth the Mannor with the Advowson, and the Husband dyeth, if afterward the Church become voyd, the wife shall not present untill shee hath recon­tinued the Mannor by Cui in vita, but forasmuch as the Statute of the 30. H. 8, 28. giveth in such case power to the wife, or her heires, to enter into the Land so aliened.

The Law at this present day, must of necessitie 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. Feoffe­ment act or acts, made or done by the Husband, shall not bee nor make in any manner any dis­continuance thereof, or be prejudiciall to her or her heires.

The former rule hath an exception in this man­ner, yet notwithstanding the entrie being not lawfull in the principall; yet if the Advowson be severed, and in any manner cannot be recovered, then may the partie wronged notwithstanding present without recontinuance of the principall; As if a man before the Statute of the 32. H. 8. 28. be seisied of a Mannor in right of his Wife, to which an Advowson is appendant, and giveth to an Estranger the same Mannor, or parcell thereof, with the Advowson in fee, and dyeth [Page 51] afterward, the Church becommeth voyd, and the Estranger presenteth, and then alieneth the Land to another in fee, saving the Advowson, and now the Church becomes voyd, the wife in such case may present to the Church without any recontinuance of the Land discontinued to which the Advowson was appendant.

Quaere therefore in the 5. H. 7. 36. where it is holden that if there be Tenant in taile of a Man­nor to which there is and Advowson appendant 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 taile shall not present until such time as he hath recontinued the Man­nor, neverthelesse if a remitter be of the princi­pall, hee that is so remitted may present to the Advowson the next time that it becommeth voyd, notwithstanding any usurpation thereof before had: For if Tenant in taile be of a Man­nour to which an Advowson is appendant and discontinueth the same, and the Discontinuee granteth the Advowson to another in fee, and afterward re-enfeofeth the Tenant in taile of the Mannor, who dieth seisied of the Mannor, now his heire shall present to the Advowson when it becommeth voyd; and if hee bee disturbed hee 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 tayle be seisie of a mannor to which an Advowson is appendant and discontinueth the same, and afterward the Church becomes voyde, and the tenant in tayle presenteth to the Church by vsurpation, it seemeth by the better opinion, of the 5. H. 7. 36, 38. that hee is not remitted of the Advowson, for that, that his ancient right therevnto was to an Advowson appendant, but now it is in grosse; But if the tenant in tayle had aliened the same to an estranger in fee, and after dyeth; notwithstanding that, he take the rents and services, that afterward discen­deth to the issue, yet is the issue therevnto remit­ted; because such rents and services are parcell of the mannor and not appendant.

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 appendant in right of his wife, and discontinueth the same Mannor, and after the Church becomes void, and he presenteth to the Church by vsurpati­on, and dyeth; having issue by the wife, and the wife also dyeth, the issue in this case is not remitted to the Advowson, for the rea­sons before shewed; hereof it ensueth likewise, as before partly hath appeared, that in all ca­ses where there is a Mannor, to which an Ad­vowson is appendant, and the Mannor with the Advowson is aliened with wrongful convey­ance, [Page 53] and the entrie of him that hath right is not taken away, there may hee present to the Church without recontinuance of the Mannor, to which the Advowson is appendant; and ther­fore if a man make a lease for life of a Mannor to which an Advowson is appendant, if the Les­see for life make a Feofment in fee, of the Man­nour and Advowson; and after the Church be­commeth voyd, the Lessor may present to the Church, without any entrie made into the Man­nour, because his entrie was lawfull into the Mannour. But if it be a rightfull 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 accessarie, that is to say, in the Advowson be­fore the same bee performed in the principall; wherefore it is holden by the better opinion in the 9. E. 3. 43. 839. that where a certain cham­ber was exchanged for certaine acres of land, with an Advowson appendant to the same acres of land: to perfect this exchange, hee that had the acres and Advowson in exchange, could not present to the Advowson untill he had made his entrie into the acres. And thus much hath been said, how an Advowson appendant may be seve­red from the principall, and againe recontinued with re-entrie, or without entrie into the same.

LECT. 10.
Of Advowsons in Grosse.

AS c [...]ncerning our first purposed Divi­sion, to be either appendant, or in grosse, or partly appendant, or partly in grosse; I have before prosecuted the first part, that is to say; The natures of Advowsons appendant, now therefore it resteth to speake somewhat of Ad­vowsons in Grosse.

The originals of Advowsons in Grosse, see­meth to be grounded upon two occasions; The first is, that Advowsons in grosse at the beginning begun originally by one of the before-specified three manner of wayes; which is, Ratione 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; hee cannot bee Patron of this by reason of any Land or Dotation, by which his patronage might be appendant, but onely by reason of the building, which being a patronage without Land, must of necessitie bee the originall cause of Advowsons in grosse.

The second occasion of Advowsons in grosse, was the sundering and severance of them from the principall to which they were first appen­dant, and so by Graunt or other Conveyance they became in grosse, which before were ap­pendant; [Page 55] wherefore how they may be sundred by Graunt, now let us consider, and see what questions in our Bookes 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 appen­dant and alien one acre parcell of the Mannour, and by the same Deed, after granteth the Ad­vowson, that the Advowson shall passe in grosse; otherwise, hee thought the Law to bee as if the Feofment 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 appendant.

Yet I thinke, if a man be seisied of a Mannor to which an Advowson is appendant, and after granteth by his Deed one acre parcell of the Mannor, and by another Deed the Advowson, and delivereth both those Deeds at one time to the Grantee, although in construction of Law, both those Deeds are but one Deed; yet the Advowson passeth in grosse clearely, and not appendant to the acre.

If a man be seisied of a Mannor with an Ad­vowson thereto appendant, 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, & partē [Page 26] retinuerit, non propter hoc transfertur advocatio sed cum donatore, remanebit licet minimam par­tem fundi retinuerit non enim transfertur cum a­liqua parte fundi nisi [...]pecialitur transfertur.

If hee which hath a Mannor to which an Ad­vowson is appendant 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, appendant.

If a Mannor to which an advowson appen­dant is belonging, discend to an heire, and if hee grant the moity or third part of the Man­nor cum pertinentiis, no part of the Advowson passeth; but if he assigne 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 appendant, and maketh a lease of the Mannor or acre, for terme of Life, excepting the Advowson, the Advowson is in grosse, and cannot bee ap­pendant to the reversion of the Mannor or acre.

But if I lease the Advowson for terme of [Page 57] life, reserving the Mannor in my hands, yet the reversion of the Advowson remaineth al­wayes appendant to the Mannor, or to the acre of Land.

For if a grant be made by me of a Mannor or acre, with the appurtenances, the reversion of the Advowson passeth, for the reversion of an Advowson may be appendant to a Mannor or acre in possession, but the Advowson in pos­session cannot be appendant to the reversion of an acre or of a Mannor.

Also, if a man hath a Mannor to which an Ad­vowson is appendant and alieneth the same Mannor, and excepteth the Advowson, the Ad­vowson is become in grosse, and although hee purchase the Mannor, yet is the Advow­son still in grosse; and cannot bee appendant.

But in all these cases some are of opinion that although the Advowson bee excepted out of the grant of the Mannor, yet neverthelesse, it is requisite to have a Deed of such grant contai­ning such exception, otherwise the Advowson will passe with the Mannor.

LECT. 11.
Of Advowsons partly appendant, partly in Grosse.

HAving formerly spoken of Advowsons appendant and in grosse, now remaineth the last member of the former di­uision to be mentioned, which is Advowsons partly appen­dant, partly in grosse.

Such Advowsons as are partly appendant and partly in grosse, 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 ap­pendant and at another time in grosse, and so a­gaine may be appendant as occasion serueth. As if a man be seisied of a Mannor or of an acre of land, to which an Advowson is appendant, and leaseth the same Mannor or acre, excepting the Advowson, the Advowson is now become in grosse, and yet after the lease is ended, shal bee againe appendant as befoee.

In respect of the parson it may so happen, that an Advowson may be appendant 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 appendant, and an Estranger leauieth a fine of the same Advowson to him that is now seisied of [Page 59] the Manor and Advowson, vpon which fine the said counsee (being still owner of the Mannor and Advowson) granteth to the Counsor that hee shall present to the Advowson euery second avoydance, by this fine the Advowson remai­neth inrespect of him that hath the Mannor, still appendant to the Mannor as before, but in respect of the Counsor that neuer had interest before, at euery second avoydance it is become in grosse, and he shall present thereunto as to his Advowsow in grosse.

But (as he in the former case) hee that was seisied of the Mannor had leauyed the fine, (and the Estranger so being counsee) and made such grant to the counsee to present at euery se­cond turne, the Advowson had beene totally in grosse; for by the counsance it had beene wholly in grosse, and seuered from the Man­nor.

If three be seisied of a Mannor that hath an Advowson appendant thereto belonging, and two of them releaseth all their right of the Ad­vowson to the third, the third is seisied of two parts of the Advowson as in grosse, and of the third part as appendant, for that, that the third part, was neuer seuered from the Mannor, but if the third dye, all the entyre Advowson des­cends in grosse to his Heyre, for nothing was in Ioynture but the Mannor that suruiued to the other two, that released, their right in the [Page 60] Advowson, and no part of the Advowson can come to them; for that, the same was not in Joynture, 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 appendant, and the one granteth all his right of the Advowson un­to another in Fee, this Advowson is both in grosse and appendant, and if hee that hath the Mannour, and ought to present everie second turne, bring his Quare Impedit, he shall not say that hee is seisied of the Mannour with the Ad­vowson appendant at every second turne (name­ly, when there is partition betweene them) to present by turne, but shall say that he was seisied of the Mannor with the moitie of the Advowson appendant.

If a Mannor with an Advowson appendant 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 appendant notwithstanding such composition, to present by turne.

But if three Mannors descend to three Co­perceners, and an Advowson is appendant to one [Page 61] of them, and they make such partition, that eve­rie Copartner hath a Mannor allotted to him, and composition to present by turne to the Advowson, now is the Advowson in such case severed and in grosse, in respect of the Co­perceners.

If a man be seisied of foure Mannors, and to one of them an Advowson is appendant and dieth, having foure Daughters, who maketh partition of the Mannors, so that every of them hath a Mannor, out of which partition the Ad­vowson is excepted, this Advowson is in grosse by reason of the exception; yet it seemeth if all the other sisters should dye, except she to whom the Mannor was allotted to which the Advow­son was appendant, that the Advowson should be againe appendant to the Mannor.

If two Churches be, and the Advowson of the one is appendant to a Mannor, and the other is in grosse, and the two Churches hap to be uni­ted, and upon the union it is ordained, that the Patrons shall present by turne, now in respect of him that hath the Mannor, the Advowson shall be appendant, and he shall present thereunto as to an Advowson appendant, but as to the other, he shall present as to Advowson in grosse.

LECT. 12.
What Presentation is, and what is the effect and fruit thereof, and in what manner Presentation and Nomination differ.

IN the aforesaid Lecture or reading hath beene declared such matters as was requisite for the explanation of the word Right, set forth in 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 meanes of presentation to prefer and advance our Friend, and Presentation is thus described.

A Presentation is the Nomination of a Clerk to the Ordinary to be admitted, and instituted by him to the Benefice voyd, and the same being in writing, is nothing but a Letter missive to the Bishop or Ordinarie, to exhibit to him a Clerk to have the Benefice voided, the formall force hereof resteth in these words chiefly, Presento vobis Clericum meum, 13. H. 8. 14. b. Therefore in our Bookes of Law, an Advowson is called [Page 63] nothing but a Nomination or Presentation, a power to prefer and enable another to have the Benefice, 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 Graunt of the nomination of an Advowson, is in substance the Graunt of the Advowson. For the profit and commoditie of an Advowson resteth in the Nomination or Disposition of the same: hereof it ensueth, that if a man grant to mee an Advowson excepting the Presentation during his life, such exception is voyd and re­pugnant38. H. 6. 38. b. 38. b. to the Graunt. So that the opinion of Thompton in the second Commentarie of Plowden in the arguments of Smith and Staple­tons case, cannot be Law; who thinketh that if Tenant in taile bee of an Advowson, and hee granteth to one by Fine the nomination of the Clerk to the same Advowson when it becom­meth voyd, 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 intailed, as hee 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 taile, for the Advow­sons, [Page 64] and yet if the case aforesaid be so under­stood, that tenant in taile of an Advowson gran­ted by fine the Nomination of the Clarke to one, and his Heyres, so that when the Church became voyd, the Grantee and his Heyres should nominate a Clarke to the tenant in tayle and his Heyres, and that he or they should present: the Clarke (so nominated) to the Ordinarie, and the tenant in tayle dyeth, such fine shal not binde the issues in tayle; therefore the fine is not of things intayled, 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 heyres, that he & his heyres euery time the Church becommeth voyde, shall nomi­nate to mee a Person to be presented to the same Church, which person so nominated, I or my Heyres shall prsent to the Ordinary of the place to be admitted accordingly, into the Church. And a question hath been moued herevpon who24. 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 thinke 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 nominatiō

Therefore in the 14. E. 4. 26. the Iustices di­stinguished, that if one be seisied of an Advow­son [Page 65] and granteth to I. S. and his heires to nomi­nate at every avoydance to him and his heires a Parson to be presented to the same Church, which Parson 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 avoydance he shall nominate to me two Clerks, of which I shall present one to the Bishop, now I remaine Patron, notwithstanding this, because the electi­on is in me which of the parties named shall bee presented and have the Benefice.

If a man have the Nomination to a Benefice, and another the Presentation, and hee that hath the Presentation granteth an annuitie to a Clerk untill he be advanced to a Benefice by the Gran­tor, if afterward the Church become voyd, 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 annuitie 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 Spiritu­all man have the Presentation, and a Lay-man the Nomination, if the Lay-man nominate to the Espirituall 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 [Page 66] to doe; for that, that hee hath presented one already by his nomination, the Lay-man shall not maintaine any Quare Impedit against the Presentor for such refusall; because, the Spi­rituall man is Patron, and being a Spirituall man, hee cannot change his presentation alrea­dy made; Also it should seeme 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 Ordinarie 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 especi­all, that the plaintiffe ought to nominate one, and that hee 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 recoverie to the plaintiffe, Quod Episcopus ad­mittat Clericum ad denominationem, &c. in re­spect [Page 67] of the Bishop that hath the presentation, he shall be said Patron; for if hee that hath the presentation cannot varie from his presentation, the other shall not; yet if hee that hath the pre­sentation, and hee 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, untill 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, hee ought not to have notice given him of the refusall of the Ordinarie, for this cause, he that hath the nomination shall not have any no­tice likewise.

For I thinke the Law to be thus; If one hath the nomination and another the presentation, and the Church becomes voyd, if the Laps in­curre, and hee 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 hee so presen­teth, as the Clerk of the Patron himselfe. If respect be had each of other, then are they both Patrons after a manner, and by injurie offered by everie of them to the other, one of them may punish the other. As if he that hath the nomina­tion will present immediately to the Ordinarie, he that hath the presentation may bring a Quare [Page 68] Impedit or a Writ of right of Advowson, against him as his case requireth, so if hee that hath the presentation refuse to present the Clerk nomi­nated to him, or present one himselfe without nomination, the other shall bring a Quare Im­pedit, or a Writ of right against him, and hisFitzh. 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 espe­ciall matter.

In everie of which suits and recoveries, and in the Writ to the Bishop shall be so, if hee that hath the nomination present to him that hath the presentation, hee that hath the presentation may disturb him in two manners; either by re­fusing the parson nominated, or by presenting some other himselfe that is not nominated. If24. E. 3. 69. b. hee refuse to present him that is nominated to him, and suit be commenced without any actuall presentation made by himselfe, then the Writ to the Bishop of him that hath the nomination shall bee, that hee shall recover his nomination, and that the Bishop shall admit such as the o­ther hath nominated to the presentor, accor­ding to his grant of nomination: But if the di­sturbance upon which the suit is granted bee be­cause the presentor that should present the par­son nominated, hath presented some other him­selfe, without nomination, then the Nominator shall have his Writ to the Bishop to present his Clerk immediately without any nomination at [Page 69] 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 hee shall nominate to the Chancellour 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 beene shewed what a Pre­sentation is, and what is the effect and fruit of the Patronage; and finally, in what case the Presentati­on and Nomination differeth.

At this time it resteth, how to prosecute the things incident to Presentation, and to make shew who may present, what Parsons may bee presented, to whom the Presentation must bee [Page 70] made, and in what manner; But because no pre­sentation can bee made unlesse to a Church or Dignitie, something shall be shewed, when they shall be voyd, and upon what occasion.

An avoydance is in two sorts, actuall in Deed, destitute in Law, which is an avoydance de Fa­cto, and avoydance de Jure.

Actuall, is when the Church is actuall in deed destitute of his Incumbent in Law, when the Church being full of an Incumbent, is notwith­standing frustrate of his right and lawfull In­cumbent, by reason of incapacitie or crime in the parson of him that occupieth in stead of the rightfull and lawfull Incumbent, and there­fore amongst the Canonists, Ecclesia Dr. vi­duam tuam sponsumque habet inutilem, there is therefore a great difference betweene voydance in Law, and voydance in Deed; the first of which two, the Espirituall Court hath to de­termine, and therefore the supreme head may so dispense there, that such avoydance in Law shall never come to bee avoydance in Deed, and of avoydance in Law no title acreweth to the Pa­tron, unlesse something be thereupon accompli­shed, by the Espirituall Court, as a declaratorie sentence or such like; but, upon avoydance in Deed, presentment acreweth to the Patron, yet in such and the like cases, Distinguendum est, for if the Dignitie be temporall, as a Master of an Hospitall or such like, and that there bee found [Page 71] defect in him by Visitors, it is an actuall avoy­dance; and the Patron may upon this make a new collation, without solemne sentence of de­privation; but if the Dignitie be Espirituall, it is requisite upon such defect that sentence of de­privation be given, before avoydance can bee, and that such sentence be notified to the Patron, otherwise Laps shall not incur against him.

Avoydance and Plenartie, are primativa con­traria, which if they come to bee tryable by is­sue betweene the parties, they are tried by two distinct Lawes. 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 Ordinarie; but avoydance, which is, if the Church be voyd or not, shall be tried by the Countrey impannelled in a Jurie, notwithstan­ding if the issue bee upon any speciall sort, or manner of avoydance, the same shall be taxed by the Certificate of the Bishop, so that such speci­all cause shall be Spirituall.

The efficient causes of avoydance, are either temporall as Death, or spirituall as Deprivation, Resignation, Creation, Session, and Entrie into Religion, whereof more shall be said afterward.

LECT. 14.
The two first particular causes of Avoydance of Churches, viz. Is either Temporall, as Death; or Spirituall, as Deprivation; the one of it selfe being manifest, and the other a discharge of the Dignitie or Ministerie.

IN the last Lecture or reading be­fore, was shewed something of a­voydances of Churches in gene­rall, now it remaines to pursue the particular meanes; that is to say, Death, Deprivation, Resignation, Creati­on, or Cession, and entrie into Religion, of eve­rie of which, wee will speake something, as the cause requireth.

1 And first of all, concerning Death, Quae omnia solvit, the matter of it selfe is manifest, and needeth no further declaration.

2 As concerning Deprivation, it is a dis­charge of the Incumbent of his Dignitie or Mi­nistery, upon sufficient cause against him concei­ved and proved; for by this, hee loseth the name of his first dignitie, & herein two manner of wayes; either by a particular sentence in the Spirituall Court, or by a generall sentence by some positive or Statute Law, of this Realme.

1 Deprivation, is in the Spirituall Court for that, that it is grounded upon some defect in [Page 75] the partie deprived, although it be by act of Law, yet it is deemed as the act of the partie himselfe. The causes of Deprivation, by Censure in the Spirituall Court are to be referred to the Common Law, therefore let us remember such of them, vpon which questions have beene mooved in the Bookes of our Law, all which causes mentioned severally, may be reduced to three principall poynts; first, want of Capaci­ty; secondly, Contempt; thirdly, Crime. As concerning the first, although by the Common Law, a Lay person bee presented, and Institu­ted, and Inducted, to an especiall Benefice, which Curate is altogether uncapable of the same, yet the Church is not therefore to bee said voyde, as if no presentation had beene, but it is still full of an Incumbent, de Facto licet non de Iure, vntill by sentence Declaratorie for his want of Capacity, the Church be adiudged voyde, and vpon this no Laps shall incurre against the Lay Patron, without notice (of such incapacity, & sentence of deprivation therupon) 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 againe, because the In­cumbent was not capable whē he was presented. If the Patron present one that is meerely a Lay [Page 76] 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, wherof Iudgment is given by the default of the Incumbent, where indeed the Incumbent was never at any time duely 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 Spirituall Court, for want of Capacity in suite there, for the cause of his incapacity exhibited against him, such sen­tence is good, & availeable in the Common Law although the said Incumbent were before remo­ved from his Benifice by the Judgment given a­gainst him in the Qu. Imp. for though such decla­ratory sentence given against him by the Spiritu­all Law, cannot remoue him that is removed al­ready, yet it shall make this Incumbent answe­rable to the next Incumbent, for all the meane profits received by him, that was the first Incum­bent, from the time of his Induction. Yet if the first Incumbent so deprived, wil afterward bring a writ of deceipt vpon the Iudgment given a­gainst him in the Quare Impedit by default; for that, that he was not summoned as aforesayd, hee shall have Iudgment herein, and the same Deprivation had in the meane season in the Spi­rituall Court, no Impediment thereunto; for that, that in the said suite of Deceipt [Page 77] the Incumbancie shall not bee in question, but onely the disturbance of the plaintiffe, in the Quare Impedit, and so for Incapacitie.

Contempt may likewise be a cause of Depri­vation, as if the parson or other Incumbent bee excommunicate, and hee so remaineth in his obstinacie for the space of fortie dayes, he is for this deprivable of his Benefice, and yet the Church is not voyd in Deed, without sentence in Deprivation given against him, and if before such Deprivation, the King as supreame Ordi­narie and the head of the Church would have a Dispensation for the Incumbent, who for all the sentence of Deprivation for his contempt had, hee shall hold his Benefice; such Dispensation were voyd, and should restraine the patron from his presentation acrewed to him, by meanes of such Deprivation after ensuing.

The third cause, is Crime, within which may be comprehended Delappidation, or spoyle of the Church Benefice, once, in our Books, wor­thy of Deprivation, likewise Schisme or He­resie; 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 avoydance, and it should be tried where the Church or Dignitie is; but because, Crime is Hydra, with many heads, and an evill Tree, whereof is bred Ingens proventus, much [Page 78] fruit, for all fruit of offences which may be com­prehended vnder this name; therefore let vs sur­cease further to deale with it, onely in general, noting those three things as the incidents and consequents of Deprivations.

First, that our Law adiudgeth not the Church actually voyde, without a sentence of Depriva­tion, as hath beene before prooved.

Secondly, that though such sentence of De­privation be meerely wrongfull; yet the Digni­tie is voyde, and the sentence remaineth in his force, vntill it be released.

Thirdly and lastly, if the party deprived with­in time require by this Law an appeale (vpon such sentence of Deprivation giuen against him at the Court of the high Iurisdiction) such is the nature of an Appeale, that it holdeth (the sentence vpon which it was first brought) in sus­pence; because, in the Common Law it is said, to have effectum suspensum prioris pronuntiati; and therefore, if it be brought upon Deprivati­on, it voydeth the vigour thereof, and reviveth the former dignity, for such Church shall not be voyde, vntill the first sentence of deprivation chance to be affirmed in the appeale, and thus much of deprivations in the Spirituall Court, shall suffice at this time.

Concerning Deprivation by Censure of Sta­tutes and Positiue Lawes, 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 Avoydance, being Spirituall, is Resignation.

THe precedent Lecture before go­ing, hath shewed the particular causes of Avoydance of Churches whereof the two first, Death and Deprivation, hath beene at large deciphered; the next is Resignation, of which I will also at this time something speake.

Resignation, or as the Canonists termes it Remytation, Est Iuris propri Spontania refutatio, or whereas Resignation is the voluntary yeel­ding up of the Incumbent (into the hands of the Ordinary) his interest and right that he hath in the Spirituall Benefice, to which he was promo­ted. Of which the matter or subject is the Spi­rituall benefice, as promotion Ecclesiasticall.

The forme is the manner how, and with what words or due Circumstances it is or should be accomplished.

The finall Causes or effects hereof, is either thereby to make the Spiritual Benefice voyd and destitute of its Incumbent, or vtterly to anient and totally to extingish such Spirituall pro­motion.

The efficient Causes are the persons that re­signe, [Page 80] and the persons to whom it is or ought to be resigned.

As concerning the matter; this onely may suf­fice to be obserued, that all Spirituall Dignities presentatiue may properly be resigned, although they be Abbies, Priories, Prebends, Parsonages, or Vicaridges, yet such Dignities as are certaine may also be resigned, or to speake more proper­ly relinquished, as were some of the Abbies in the time of King Hen. the 8. and so may Bishop­pricks at this day be resigned, &c. into the hands of the King as supreme Ordinary of the Church and rightfull Patron of the same Bishopricks.

As concerning the forme of Resignation, and protestation which must be when the party will resigne, they are set out in the Register, fol. 302. in the folioes of the Booke following, as Fitzh. noteth in his Nat. Br. fol. 273. F. or S. The words of chiefe effect in such Instrument of Resignati­no, are Remantiare, Edere, & Dimittere, for Re­signation is not any proper terme of the Com­mon Law.

Yet the Law of this Realme, more respecting matter then formality of words, hath ad­judged a Graunt made by a Prebendarie to the King, to be an effectual Resignation in the forme 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, [Page 81] vltró & sponte dedisse serenissimo Domino nostro Ed. 6. Angliae, &c. supremo Capiti totorum Prebendarum suorum 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 resigne, if he bee not but onely Admitted and Instituted, al­though as concerning the Spirituall Function he be a Parson before Induction, yet because noCom. 126. part of the Free-hold of the Spirituall Benefice is transferred to him, but by the Induction, hee cannot vntill after the Induction, if the King bee Patron, make any good and effectuall 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 ful in respect that the King being Patron, such in­cumbent before Induction is full subiect to have his presentation and Institution revoked.

But if a Subiect bee patron, and his presentee be admitted, such presentee (if he be willing to leaue his Charge) may before Induction resigne [Page 82] the Church, for the espirituall Dignity was full of an Incumbent in respect of his Patron, and be­cause also there is no other meanes to cleare the Church of him but by such renunciation.

As concerning the person to whom Resignati­on must be made, Distinguendum est; for if he be onely purposed to avoyd the Church, and to cause the Patron to present againe, then it ought to bee done to the Ordinarie 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 supreame Ordinarie, if such Resignation should be made to him, hee is not compellable to giue notice to the Patron of such Resignation, nor can hee or any other Ordinarie collate vpon the Patron such notice.

Notwithstanding, if the purpose be utterly to extinguish such Dignitie spirituall, the same Re­signation may be made to the King, as to the su­preame head of the Church, as in ancient time it might haue beene made to the Pope.

For such Authority and Jurisdiction as the Pope vsed in this Realme, was contradicted by an act of Parliament made in the 25 H. 8. and other Statutes to be in H. 8. and his Successors; which Iudgement and opinion I hold too be firme Law, especially where the King himselfe [Page 83] is Patron, or where the Patronage is to some Spirituall man for ever, upon Spirituall parsons the Pope (before the Statute of the 25. E. 3.) by his provisions and other meanes used more Ju­risdictions than at any time Lay persons could bee permitted to doe. The finall effect which consisteth in the end, wherfore Resignation was ordained, wee have heard to bee two-fold, the 1 one to adnihilate the Spirituall promotion, the 2 other to make it voyd 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 cleerely, that by this his Resignation, this Pre­bend is discharged of the rent, and therefore such charge shall not be any burthen to his Suc­cessour; likewise if a Parson resigne after hee hath made a Lease for yeares, the Lease is avoy­ded.

Likewise, if a Parson permute or change his Benefice, which indeed cannot bee accompli­shed without Resignation, the Charge or Grant made by such Incumbent for yeares, is utterly voyd.

If a Parson grant an Annuitie out of the par­sonage, and after resigne, if after all this the Pa­tron and Ordinarie will confirme such Graunt, the Confirmation, and the Graunt which was [Page 84] voyd before Confirmation cannot be available.

With which agreeth Pollyard, who saith; that14. H. 8. 8 a. if a parson charge a Gleebe, and after resigneth or dyeth, the charge is avoyded.

A Recoverie was had against a parson in an action of Debt, and in a Fieri fac. thereupon the Sheriffe returned, that the Defendant was Cleri­cus Beneficiatus & non, &c. in this case, if the Defendant resigne, the plaintiffe is destitute of his recoverie, for by such Resignation the Church is discharged; because the Ordinarie cannot sequester the Spirituall Benefice upon any processe awarded to him.

But if the Incumbent that so chargeth, bee such as hath by the Law absolute power to deale with the lands of his Spirituall 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 voyd, by such Resignation, but shall continue against his Successours untill it be avoyded by some o­ther meanes.

Thus much concerning the finall cause of Re­signation, to which suffer us to annex the cau­ses allowed by the Common Law, to move a Bishop, or any other beneficed parson to relin­quish and surrender their function, Conscientia criminis, debilitas corporis, defectus 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 par­tie, and therefore if any Incumbent being plain­tiffe in any action resigne his Dignitie or pro­motion, his writ brought by him as Incumbent shall abate.

But if such Incumbent take out a Writ con­cerning his Rectorie, and afterward resigne, and againe be promoted to the same Dignity, before the returne 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 severall promotions, his re­signation (having the same suit; for that, that it is his act) shall not abate such writ or action.

It is to be noted, that there are two sorts of Resignations, the one is absolute, when the In­cumbent intendeth so to make void the Church, and to surrender his right therein to the Ordi­narie, whereupon the patron may present who­soever it shall please him to the Church, as if the said had been voyded by death, or other meanes of Avoydance, as by precedent authorities hath appeared.

The other cause of Resignation, is causa per­mutationis, of which in the Register, fol. 306. b. appeareth a president.

Whereupon also ensueth the forme 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, sed 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 seeme in our Law, I cannot perceive; for that, that it appeareth by the Booke in the 45. E. 3. and Fitzh. exchange it.

LECT. 16.
The next speciall meanes, in Avoydance of Spiri­tuall 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 Benefices becomes voyd, and the Churches or places severall (where their former Sanctuarie was to be executed) and utterly dis­charged of their Incumbent, and this immedi­ately upon Consecration without solemne sen­tence Declaratorie in the Spirituall Court.

The reason whereof, is not only for Inconve­nience of Pluralities; but also, because it should be likewise inconvenient for one and the same parson to be a Subject and a Soveraigne, which in the course of our manner of Jurisdiction can­not be, but is reserved in the Superiour.

Neverthelesse, such avoydance 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 avoydance it is to be noted, that as foure things are required to concur for the full perfecting of any parson or parsons preferred to any Dig­nitie Ecclesiasticall, 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 Spirituall Lawes, were required (be­fore the statute of the 25. H. 8. cap. 20.) also foure things answerable in many respects to the foure former before recited. As first Election, secondly Confirmation, thirdly Consecration, Creation, or Investure; and fourthly, Installation, or In­thronation.

The Election was made by the Deane and Chapter, or by the Prior and Covent, where they being as Deane 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 Deane and Chapter hath been by private Acts of Parliament erected. But in some other Cathedrall Churches, the Election hath beene both by Deane and Chapter, as of Wells, and by the Prior and Covent at Bathe; and in the See of Coventry and Lichfield. And in [Page 89] some other Cathedrall Sees, the election of the Bishop have beene by two severall Deanes and Chapters, as in the Archbishoprick of Dublin in Ireland, where both the Deane and the Chap­ter of Christs Church, and the Deane and Chap­ter of Saint Patricks joyned in election, and both of them used to confirme the grants of the Bishop, although Christs Church was knowne to be the more ancient Church to that See.

As concerning therefore the Election of Arch-Bishops and Bishops, the Kings of this Realme of their prerogative royall, & being im­mediate Patrons of the same Cathedral Church, in ancient time gave and bestowed of their Im­periall Jurisdiction, Archbishopricks and Bi­shopricks, to such worthy parsons as they thought fit, without any election of the Chapter as appeareth in the 17. E. 3. 46. Stower, and this investure was by a ring and a little staffe, by the deliverie of the King, and Ensignes of the Bi­shop; but afterward in the time of King Iohn, in as much as the Popes had made constitution, that no man should enter into the Church by a secular person, totally, and that the Bishop of Rome coveted to erect the Poperie above the Throne of Kings. A great controversie 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 [Page 90] license of the King, and also appointment of the King to chuse John Gray, one of the Bi­shops in this Realme for their Arch-Bishop, yet the quarrell grew to such fervencie, that it could not be quenched unlesse from Rome, where the Pope taking opportunitie of such dissention, would not receive any of the elected, but for­ced the Monks to chuse for their Arch-Bishop Stephen Langhton, then Cardinall of Saint Chrisogon, whereof ensued the great discord be­tweene the King, and the Pope; of which, such was the tyrannie 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 allegeance to their naturall Prince; and Lewis the French Kings son provoked to make warre against King John, untill hee were constrained to seeke peace at the hands of the Pope, to yeeld his Crowne to the Legate, and after five dayes to take it againe at the Legates hands, & become feodary Tenant to the Pope for the same, paying an annuall sum of mony to the Church of Rome, for ever; but also to content his Clergie, he gave to them alwayes free election of Spirituall Dignities, which memorable antiquitie of the Kings preroga­tive and the losse therof, is briefly touched in the 2. H. 4. 686. and more at large by the Histories of those times, and although hereby free [Page 91] Elections were given to the Clergie, yet sued they forth the Kings licence to proceed to Ele­ction.

The Election of a Bishop thus made, did not beare the name of a Bishop, but was to be called Lord elect of the place or Bishoprick, to which he was elected.

The second is Confirmation, which was usu­ally made by the Bishop of Rome, and not any other, who (before such confirmation) used to examine the partie, 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 Bishoprick then was, being thereunto appointed with the use of certaine ceremonies, as beatitudes, hol­ding of the Bible over the head of the parson to be consecrated, laying on of their hands upon his head, anoynting, and other rites thereunto38. E. 3. 30. b requisite; And yet it is said, that the Pope reser­ved the consecration of the Bishop to himselfe after election and confirmation, and before crea­tion5. E. 2. Fitzh. 800. 2. E. 3. Fitzh. bre. 250. 21. E: 3. 5, 6. and consecration: hee that was so elected and consecrated, might still retaine the name of his former Dignitie, and if hee would refuse the imposed charge of the Bishoprick.

And yet after confirmation, and before con­secration of the parson confirmed, hee might exercise so much of his Spirituall Function as [Page 92] concerned the Jurisdiction, but no matters concerning Ordination might he meddle with, for the full understanding whereof it is to bee knowne, that all things belonging to the Epis­copall function or Ministerie, are to bee reduced to three points; for they belong to him, either Ratione Jurisdictionis, as the hearing of spiritu­all causes, censures, and corrections Ecclesiasti­call, 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 doe before consecration.

Or, Lege Diocesiana, as the execution of Eccle­siasticall payments and pensions due to him, as Diocesian of the Clergie, rated upon the Bi­shopricks of his Diocesse, called therefore by the Common Law Census Cathedraticus.

Notwithstanding, the King may restore to41. 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, hee was holden in all respects a perfect Bishop, and all his former dig­nities thereby were avoyded, for although by Confirmation spirituale conjugium contrahetur, yet by Consecration consumatur.

The last thing is, Installation or Inthronation, by which he is fully enabled, to pursue his Tem­poralties [Page 93] 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 diversly taken in the 38. E. 3. 90. b. 5.

Notwithstanding, the Metropolitan ought to certifie the day and time of the consecration of everie Bishop within his Diocesse, for accor­ding thereunto hee shall be restored to his Tem­poralties, and this I think to be reason.

Thus you see, that in some respect the election of a Bishop resembleth the presentation of a Parson, the Confirmation resembleth the Ad­mission of a Parson, the Creation resembleth the Institution of a Parson, and the Installation or the Inthronation the Induction of a Parson, yet in many other respects they differ.

And although after the abrogating of the Popes authoritie out of this Realme, 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 Iohn and his ancient Progenitors long since enjoyed, and al­though likewise the ceremonies, forme, and manner of consecration of Bishops by the au­thoritie of Parliaments, in the time of King Ed. the sixth, were now appointed and published, all acts of Parliament being repealed by the first [Page 94] and second of Philip and Mary, are now revived and in force, by Eliz. yet our former position holds now firme Law, that no Church nor Spiri­tuall Dignitie at this day becommeth voyd, by making the Incumbent thereof Bishop, untill 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 vertue of the 25. H. 8. 20. by his Letters patents to any fit parson, any Bishoprick or Archbishoprick within this Realme, without election, and there­upon before Consecration restore to him his Temporalties, or if the Pope had given a Bisho­prick to any fit person by reservation, wich a­mounteth in Law to an Election and Confirma­tion, if the King had restored to him his Tem­poralties, yet in both cases untill Consecration, he is no perfect Bishop, nor his former Dignities by such Grant and restitution of Temporalties become voyd untill Consecration as aforesaid.

If before the 25. of H. 8. 10. the Incumbent of a Benefice had beene elected Bishop and confir­med, and before consecration had, obtained of the Bishop of Rome a dispensation still to enjoy his former Benefice, notwithstanding his crea­tion or consecration had ensued accordingly; yet by such creation the Church should not have beene voyd, but the partie still enabled to retaine the same Benefice against the Patron [Page 95] by vertue of such Dispensation.

So at this day, if an Incumbent of a Spiritu­all Benefice, be elected and confirmed, and be­fore hee bee consecrated, obtaine licence or dis­pensation of the Archbishop of Canterbury, to detaine the Benefice incommendam; yet he shall he promoted to the same Bishoprick, although his licence never be enrolled in the Chancerie, 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 vertue of such dispensation, the former Dignitie or Bene­fice becommeth not voyd, by the same conse­cration. Yet if the Incumbent of any Spirituall Benefice be elected, consecrated, and confirmed Bishop, and after his consecration procureth a dispensation of the Pope in papacie, or of the Metropolitan since the Stat [...] of the 25. H. 8. c. 20. such dispensation shall not be available; because, by the consecration, the former Dignitie or Be­nefice was actually, and in Deed voyd; 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 avoyded Dignitie, by the Conse­cration acrewed to him; because, after the first Dignitie is once voyd by the Consecration, the Dispensation commeth too late.

Yet the King; Ex summa authoritate sua Regia [Page 96] Ecclesiastica qua fungitur, may grant (to the Bi­shop that is consecrated) power to take and re­ceive by Presentation, Institution and Inducti­on, any Spirituall Benefice, and to hold the same in Commendam, notwithstanding his estate of being Bishop, for so the Pope used to doe, and the same authoritie is recognised by the Statute of the 25. H. 8. to bee in the King or Queene of this Land, which was within this Realme by the Pope.

Finally, this is to be noted, that whereas before it hath beene said, that Deprivation is the act of the Law, yet grounded upon the act of the par­tie; So is creation of the Bishop, the act of the Law, wherfore 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 meere­ly the act of the partie, thus much for Creation.