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THE

ECCLESIASTICAL LAW.

Commemoration.

COMMEMORATIONS in the ancient church were recitals of the names, and honourable mention made in the solemn offices of worship, of such persons as had been eminent for piety and sanctity, and who had departed this life in the fear of God, and in communion with the church of Christ. And this was done with a kind of prayer and thanksgiving, not from any supposed benefit that it would be to the dead, but for the example and encouragement of the living. And from hence may be deduced the observation of saints' days in the church (a).

But in process of time, as this was usually performed upon the day of the person's death, the same degenerated into annals, anniversaries, obits, and such like; wherein prayers were put up for the soul of the deceased, and masses celebrated for the redemption thereof out of purgatory; and upon this foundation. the chauntries were established and endowed (b).

Also, where the service of the lesser holiday falleth in with a greater, it is called a commemoration; in which the service. of the greater holiday is performed, and commemoration only is made of the saint for whom the inferior service is appointed (c).

Commendam.

1. COMMENDAM is a benefice or ecclesiastical living, commenwhich, being void, to prevent its becoming void, commendatur, dam, what. is committed to the charge and care of some sufficient clerk, to

(a) Ayl. Par. 190. (b) Ibid.

(c) Gibs. 263.

VOL. II.

B

[2]

Restraints of Commendam.

be supplied until it may be conveniently provided of a pastor.
Thus, when a parson of a parish is made the bishop of a dio-
cese, there is a cession of his benefice by the promotion; but
if the king gives him power to retain his benefice, he shall
continue parson thereof, and shall be said to hold it in com-
mendam (d). The words "to prevent its becoming void," are
not in Godolphin, and seem to have been added to the definition
to make it extend to commendams retinere, which Lord Hobart
says are not properly commendams, though usually called so,
but merely faculties to retain (e), for according to him there is
no difference between a commendam and a presentment, but
that the one presents the parson to the church, the other com-
mits the church to the person (f). According to the same
authority, commendams are of three degrees: one, semestris,
that the church may not be without a parson during the patron's
respite of six months; another perpetua, or for life; the third
limitata, or temporary, which limitation however is not allowed
in commendams capere (g).

2. By a constitution of Othobon, "Whereas divers persons,
to avoid the laws against pluralities, do procure vacant bene-
fices to be commended to them, to the great decay of piety
and hospitality, and to the sin of those who grant such com-
mendams; we do decree, that no church shall be granted in
commendam, but for just and lawful cause; and in such case,
that no church shall be commended to any person who hath
more than one benefice with cure of souls; and that no per-
son shall have more commendams than one, on pain that the
same shall be void, and the bishop who shall grant such com-
mendam shall be suspended from collating or presenting unto
benefices until he shall recal the same (h).'

And by a constitution of Archbishop Peccham, "We do decree, that if any person shall take or obtain more than one benefice with cure of souls, or otherwise incompatible, without dispensation of the apostolic see, either by way of institution or of custody or commendam, or one by institution and another by commendam, except they be held in that manner which Gregory's constitution made in the Council of Lyons doth permit, he shall be deprived of all benefices so obtained, and be excommunicated ipso facto, and not absolved but by us or our successors, or the see apostolic (i)."

Gregory's Constitution.]—Which was, that no commendam should be granted to any person but who was of lawful age, and a priest, and but one commendam to one person, and that

(d) God. 230.

(e) Infra, 4.
(f) Hob. 150.

(g) Hob. 144, 153, Colt and Glover v. Bishop of Coventry and Litchfield, where much learning on this subject

is to be found; S. C. 1 Rol. Rep. 451;
and Moore, 898. [See Sir J. Davies's
Rep. 185.]

(h) Athon, 120.
(i) Lind. 136.

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only when evident necessity or the advantage of a church required it, and the same to continue no longer than for six months (k).

vacated by

3. The possession of a bishopric doth of common right void Benefice all other promotions: this is the ancient law of the church as acceptance of expressed in a canon of the Council of Lateran under Alex- a Bishopric. ander III (). And agreeable hereunto (and without doubt, derived from this) are the declarations that we meet with everywhere in the books of common law, that of common right all promotions are vacated by the taking of a bishopric as such (m); but the law is otherwise, if one is a mere titular bishop, or a suffragan bishop upon the statute of the 21 Hen. 8, c. 14 (n).

Avoidance

4. But this voidance may be prevented by dispensation of But the retainer, granted before possession of the bishopric, which is may be precommonly called a commendam retinere. This the pope had vented by a power to do, as claiming right to dispose of all promotions becoming void in that manner. And the same thing the king may do, either singly and by himself (as many of the law books hold), or at least by command to the archbishop to exert the right of dispensation vested in him by the statute of the 25 Hen. 8, c. 21, as the ordinary method is. Which sort of commendam is defined by Hobart to be, a faculty of retention and continuation of the benefice in the same person and state wherein it was, notwithstanding something intervening (as a bishopric, or the like) that without such a faculty would have avoided it (o). By which means, the institution and induction, or other method whereby the person obtained such benefice, remain and are continued in their full force. And it being the doctrine both of canon and common law that former promotions are not vacant but by consecration in case of creation, and by confirmation in case of translation; if such dispensation comes before these, it comes in time enough to continue the possession: but otherwise it comes too late (p). Thus it is said in the books of common law that Cardinal Beaufort's dispensation to hold the bishopric of Winchester, coming after he was made [4] cardinal, was void; but that Cardinal Wolsey's, for the archbishopric of York, coming before, was good (q).

And not only dignities and benefices have been granted in commendam, but also headships of colleges and hospitals, and that by dispensation; as, for instance, of headships, St. John's, in Oxford, to Dr. Mews, Bishop of Bath and Wells; of Magdalen College, in Oxford, to Dr. Hough, Bishop of Oxford; of Pembroke College, to Dr. Hall, Bishop of Bristol: and of

(k) Gibs. 914; 6o i. 6, 15.

(1) X. i. 6, 7.

(m) 4 Mod. 210.

(n) Gibs. 913.

(p) Noy, 93, 94; W. Jones, 158; Vaugh. 18; Evans and Kiffin v. Askwith.

(9) Gibs. 913; Dav. 80.

(0) Hob. 143.

Whether a

a

mendam in

hospitals, at St. Cross, near Winchester, to Dr. Compton, Bishop of Oxford; and St. Oswald's, near Worcester, to Dr. Fell, Bishop of Oxford (r).

It hath been questioned whether a lapse might be made a commendam, but that seems to be a groundless nicety; since it is certain that whoever hath right to present by such lapse, hath by the same reason a right to consent that it be granted in commendam perpetual, which is equivalent to a presentation (s).

5. It hath been questioned heretofore whether a bishop could Bishop may take a commendam in his own diocese, because the same person cannot be visitor and visited; but it hath been answered that the bishop is under the correction of the metropolitan ; and accordingly, that he may have such commendam (t).

his own Diocese.

Patron's Consent necessary.

How far a

continues the

6. No commendam can be granted but with consent of the patron. This is the doctrine of the canon law (u). And therefore in granting a commendam retinere, the king (who is patron by the promotion) signifies his consent by his mandate to the archbishop to grant dispensation; and if the commendam be by recipere, it is either to take a promotion in the bishop's own gift, and so his acceptance is a consent; or in the gift of some other patron, and then the consent of such patron must be given in an authentic manner, and mentioned in the dispensation. And Hobart said, that if the archbishop should commend to a certain church void, without the patron's consent; the instrument of commendam would be void, though the patron should consent afterwards (x).

7. By a commendam retinere the incumbency is continued. Commendam This follows plainly, from what hath been said, that the voidIncumbency. ance is thereby prevented, which would otherwise have en[5] sued, in the same manner as it is prevented with regard to a

first benefice incompatible, by dispensation to hold a second or a plurality of benefices. For this reason, it was said by Hobart, that a commendam retinere is improperly called a commendam; for (saith he) my own benefice cannot be commended unto me. And it is clear from the aforegoing constitutions, that what the canon law meant by this term, was only with regard to the second benefice taken de novo, by way of custody or commendam, and (to prevent the voidance of the first) not taken by way of institution; and that it was no more than the committing to the incumbent of one church the cure and revenues of another, either for a time limited (as six months), which time the patron had to consider of a proper clerk that the church might be taken care of, or (with consent of the patron) for a longer term, to the end chiefly that such

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