incumbent might be the better supported: the first of which (to wit, the care of the church during the vacancy) is now answered by sequestration of the benefice; and the grant of the second (namely, the profits of the vacancy) is rendered impracticable by bishop or patron, or both, by the statute of the 21 Hen. 8, c. 11, which gives the profits of the vacation to such person as shall be thereunto next presented, promoted, instituted, or admitted. Which profits before this act belonged either to the church, and so were in the disposition of the patron and bishop; or to the ordinary, or other person to whom by custom they appertained, and so by the previous consent of such person might be yielded to the commendatary: but the next incumbent being a person uncertain, cannot give such consent, and by consequence the revenues of vacancies, since the making of the said act, cannot be given; which seems to be the true reason of the utter disuse of that sort of commendams, with regard to presbyters; however it hath continued, by prerogative royal, in favour of bishops (y). But a commendam capere (that is, a dignity or benefice taken by a bishop after consecration, and without institution) doth not create a proper incumbency. The canonists were not clear, whether during a commendam, the church commended was not really vacant; and whether the commendatary was in law any more than a guardian, administrator, or procurator of the church, during such vacancy; and they who hold that they were something more (because commendam is a title owned by the canon law) pretend not to say, that they were incumbents; they hold only by a corrupt and precarious title, [6] invented on purpose to elude the laws against pluralities. In like manner, though the books of common law say, that a commendatary by retinere remains full incumbent, and may plead as such; yet of a commendatary by capere they say, that a dean by such commendam cannot confirm a lease made by the bishop, and that a commendatary parson in that way cannot have a juris utrum, nor take to him and his successors, nor can sue or be sued in a writ of annuity (z). But on the other hand, there is one circumstance which makes much for the real title of such ancient commendataries as were such by retinere; namely, that we find these benefices declared vacant by the resignation of the commendataries, of which there are several instances to be met with in the archbishop's register (a). mendam may 8. Commendam may be temporary or perpetual at the plea- For what sure of the king. When it is temporary, the precise time is time a Con expressed and limited in the dispensation; when perpetual, be. the style is, so long as he shall live, and continue bishop of that see. And in the case of a commendam retinere, whether it be temporary or perpetual, it is only a temporary or perpetual continuance of the original incumbency, or the preventing of an avoidance for such a term; of both which there have been frequent instances. And so anciently, in the case of a commendam capere, granted to presbyters; the term, when it went beyond six months, (which was little more than a sequestration,) was sometimes for a year, in case a person who had entered into a religious state did not return after this year of probation; sometimes, till another person was in orders; sometimes, to continue at the pleasure of the ordinary; and sometimes for life. But at present, in the case of bishops, the books of common law seem generally to fall into the opinion, that a commendam capere ought to be perpetual; because (there being no previous title by institution, as it is in the case of a commendam retinere) the law knows not what to make of any thing that shall be called a title, and not be equal to that, at least in point of perpetuity (b); and Dr. Gibson says, he believeth that in fact there is no instance of a commendam capere in the ecclesiastical records, but what hath been unlimited or perpetual though, whatever the right be that it conveys, it [7] seemeth (in reason) to be capable of being as well temporary as perpetual (c). How far the King's Right to present is by. 9. According to the duration of a commendam and the commendatary, the right of the crown to present upon promotion served there is served or not served. If the commendam be limited to a certain term, the king shall present by prerogative at the expiration of such term, notwithstanding the previous grant of a commendam; unless it so fall out, that the commendatary bishop dies or resigns before the expiration of the term; for in such case, the church becoming void not by cession but by death or resignation, the turn of the crown is served, and the patron shall present (d). And so it is likewise served if the commendam was originally unlimited, that is (according to the language of the faculties) during the life of the person and his possession of such see; because this amounts to a presentation, and therefore in this case also the right of the crown is served, and the patron presents (e). Continuation or Renewal of a Commen. dam. But if a bishop, who is possessed of a commendam, is translated to another see, and so a new title accrues to the crown by a new promotion; the same commendam may be continued, if the king pleaseth: but it must be by a new dispensation, granting it to be held with the new bishopric (f). 10. Commendam temporary in retinere may be renewed and prolonged; that is to say, before the original incumbency (b) Hob. 152. (c) Gibs. 914. (d) 4 Mod. 212. (e) Gibs. 915. ceaseth by the expiration of the first dispensation, a second dispensation may be granted to prevent the avoidance, and continue the incumbency. It is true, commendams, being designed to support the dignity of the episcopal character, (which since the time of the Reformation hath greatly needed support in many sees,) they have usually been granted in perpetuity; in which case, there was no occasion to renew them. But that such renewals were understood to be legal and regular, appears by the applications that have been made for them, without any marks of doubt as to their legality: in one instance, by the Bishop of Carlisle in the year 1567, and in another instance the very next year by the Bishop of Chester. But the more ancient books of the faculty office being all lost, we cannot certainly tell what effect these applications had; but of late years we find, that a temporary commendam of the Bishop of Chester, which was in retinere, being expired, a new commendam of the same benefice was granted to him in perpetuity by capere in consideration of the smallness of the said bishopric, and the private patron's having otherwise disposed of the usual commendam, with which it had been formerly supported (g). [8] a Commen 11. As to what hath been said of resigning commendams at Resigning of pleasure, this may be of very ill consequence to the respective dam sees; many of which are poor, and cannot subsist without additional supports. And perhaps there are no other commendams so good, or so convenient; at least, if they are resigned, and other clerks be presented, there will be none vacant together with the bishopric. And therefore it was a general instruction which King Charles I. sent to the bishops, not to resigns their commendams; and we find a particular letter written by the king's order to the Bishop of Peterborough, that he should not resign the living of Castor, which he held in commendam (h). [6 & 7 Will. 4, s. 18:" And be it enacted, that after the Abolished by passing of this act no ecclesiastical dignity, office, or benefice, Act of Parshall be held in commendam by any bishop, unless he shall so hold the same at the time of passing thereof; and that every commendam thereafter granted, whether to retain or to receive, and whether temporary or perpetual, shall be absolutely void to all intents and purposes."-ED.] Commissary. COMMISSARY is a title of jurisdiction, appertaining to him that exerciseth ecclesiastical jurisdiction in places of the diocese so far distant from the chief city, that the chancellor cannot call the people to the bishop's principal consistory court without great trouble to them. This commissary is called by the canonists commissarius, or officialis foraneus, and is ordained to this special end, that he should supply the office and jurisdiction of the bishop in the out places of the diocese, or in such parishes as are peculiars to the bishop, and exempted from the archdeacon's jurisdiction: for where by prescription or by composition there are archdeacons who have jurisdiction in their archdeaconries, as in most places they have, there the office of commissary is superfluous (i). The law concerning which officer, falling in with the law concerning chancellors, vicars general, and officials; the whole is treated of together, under the title Chancellor (k). [9] Commission for Pious Uses-See Charitable Uses. Common Prayer-See Public Worship. Communion-See Lord's Supper. Communion of the Sick-See Sick. Communion Table-See Church. Commutation-See Penance. Confession. BY Can. 113, empowering ministers to present offences at the court of visitation, it is provided, that if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him, he shall not in any wise be bound by this constitution, but is straitly charged and admonished, that he do not at any time reveal and make known to any person whatsoever, any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called in question for concealing the same), under pain of irregularity. (i) Terms of the Law; 4 Inst. 338. (k) [See 1 Phill. 204.] Confirmation. 1. IN the office of public baptism, the minister directeth the godfathers and godmothers to take care" that the child be brought to the bishop to be confirmed by him, so soon as he or she can say the Creed, the Lord's Prayer, and the Ten Commandments in the vulgar tongue, and be further instructed in the Church Catechism, set forth for that purpose." And by the rubric at the end of baptism of those that are of riper years" It is expedient that every person so baptized shall be confirmed by the bishop, so soon after his baptism as conveniently may be, that so he may be admitted to the holy [10] communion." And by the rubric before the office of confirmation :-" So soon as children are come to a competent age, and can say in their mother tongue the Creed, the Lord's Prayer, and the Ten Commandments, and also can answer to the other questions of the Catechism, they shall be brought to the bishop.' 2. By Can. 60, "Forasmuch as it hath been a solemn, ancient and laudable custom in the church of God, continued from the apostle's times, that all bishops should lay their hands upon children baptized and instructed in the catechism of the Christian religion, praying over them, and blessing them, which we commonly call confirmation, and that this holy action hath been accustomed in the church in former ages, to be performed in the bishop's visitation every third year; we will and appoint, that every bishop or his suffragan, in his accustomed visitation, do in his own person carefully observe the said custom. And if in that year, by reason of some infirmity, he be not able personally to visit, then he shall not omit the execution of that duty of confirmation the next year after, as he may conveniently. 3. By Can. 61, "Every minister that hath cure and charge of souls, for the better accomplishing of the orders prescribed in the Book of Common Prayer concerning confirmation, shall take especial care, that none shall be presented to the bishop for him to lay his hands upon, but such as can render an account of their faith according to the Catechism in the said book contained. And when the bishop shall assign any time for the performance of that part of his duty, every such minister shall use his best endeavour to prepare and make able, and likewise to procure as many as he can to be then brought, and by the bishop to be confirmed." And by the rubric :-" Whensoever the bishop shall give knowledge for children to be brought unto him for their confirmation, the curate of every parish shall either bring or send in writing, with his hand subscribed thereunto, the names of all such persons within his parish as he shall think fit to be |