the advantage of the church required it, and the fame to continue no longer than for fix months Gibf. 913. (6) 3. The poffeffion of a bishoprick doth of common right Benefice vacated void all other promotions: this is the ancient law of the by cceptance of a bishoprick. church as expreffed in a canon of the council of Lateran under Alexander the third (c). And agreeable hereunto (and without doubt, derived from this, are the declarations that we meet with every where in the books of common law, that of common right all promotions are vacated by the taking of a bishoprick as fuch (d): but the law is otherwife, if one is a mere titular bishop, or a suffragan bishop upon the ftatute of the 21 H. 8. c. 14. Gibl. 913. difpofe of prevented by a 4. But this voidance may be prevented by difpenfation But the avoidof retainer, granted before poffeffion of the bishoprick: ance may be which is commonly called a commendam retinere. This the pope had power to do, as claiming a right to all promotions becoming void in that manner. fame thing the king may do; either fingly and by himfelf (as many of the law books hold), or at leaft by command to the archbishop to exert the right of difpenfation vested in him by the ftatute of the 25 H. 8. c. 21. as the ordinary method is. Which fort of commendam is defined by Hobart to be, a faculty of retention and continuation of the benefice in the fame perfon and ftate wherein it was, notwithstanding fomething intervening (as a bishoprick, or the like) that without fuch a faculty would have avoided it (e). By which means, the inftitution and induction, or other method whereby the perfon obtained fuch 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 confecration in cafe of creation, and by confirmation in cafe of tranflation; if fuch difpenfation comes before thefe, it comes in time enough to continue the poffeffion; but otherwile it comes too late (f). Thus it is faid in the books of common law, that cardinal Beaufort's difpenfation to hold the bifhoprick of Winchefter, coming after (b) 6° . 6. 15. (d) 4 Mod. 210. (c) X. 1.6.7. (e) Hob. 143, (f) Nax 93, 94. W. Jones 158. Vaugh. 18. Evans and Kihn v. Afwith. Whether a bi he was made cardinal, was void; but that cardinal Wolfey's for the archbishoprick of York, coming before, was good. Gibf. 913. (g) And not only dignities and benefices have been granted in commendam, but also headships of colleges, and hofpitals, and that by dispensation; as, for instance, of headfhips, 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 Hofpitals, at St. Ciofs near Winchester, to Dr. Compton bishop of Oxford; and St. Ofwald's near Worcester, to Dr. Fell bishop of Oxford. Id. It hath been questioned, whether a lapfe might be made a commendam: but that feems to be a groundless nicety; fince it is certain, that whoever bath right to prefent by fuch lapfe, hath by the fame reafon a right to confent that it be granted in, commendam perpetual, which is equivalent to a prefentation. Id. 5. It hath been queftioned heretofore, whether a bishop fhop may have a could take a commendam in his own diocefe, because the commendam in fame perfon cannot be vifitor and vifited: but it hath been his own diocele. anfwered, that the bishop is under the correction of the metropolitan and accordingly, that he may have such commendam. Gibf. 913. (b) 's confent Patron necellary. How far a commendam contines the incumbency. 6. No commendam can be granted but with confent of the patron. This is the doctrine of the canon law (i). And therefore in granting a commendam retinere, the king (who is patron by the promotion) fignifies his confent, by his mandate to the archbishop to grant difpenfation: and if the commendam be by recipere, it is either to take a promotion in the bishop's own gift, and fo his acceptance is a confent; or in the gift of fome other patron, and then the confent of fuch patron muft be given in an authentick manner, and mentioned in the difpenfation. And Hobart faid, that if the archbishop fhould commend to a certain church void, without the patron's confent; the inftrument of commendam would be void, tho' the patron should confent afterwards. Gibf. 913, 4. (k) 7. By a commendam retinere the incumbency is continued. This follows plainly from what hath been faid that the voidance is thereby prevented, which would other 1 (g) Dav. 80. (b) 1 Rol. Rep. 463. Moor899. wife have enfued; in the fame manner as it is prevented. with regard to a first benefice incompatible, by dispensation to hold a fecond or a plurality of benefices. For this reafon, it was faid by Hobart, that a commendam retinere is improperly called a commendam; for (faith he) my own benefice cannot be commended unto me. And it is clear from the aforegoing conftitutions, that what the canon law meant by this term, was only with regard to the fecond benefice taken de novo, by way of cuftody or commendam, and (to prevent the voidance of the firft) not taken by way of inftitution; and that it was no more than the committing to the incumbent of one church tac cure and revenues of another, either for a time limited (as fix months), which time the patron had to confider of a proper clerk that the church might be taken care of, or (with confent of the patron) for a longer term, to the end chiefly that fuch incumbent might be the better fupported: the first of which (to wit, the care of the church during the vacancy) is now answered by fequeftration of the binefice; and the grant of the fecond (namely, the profits of the vacancy) is rendered impracticable by bishop or patron or both, by the ftatute of the 21 H. 8. c. 11. which gives the profits of the vacation to fuch perfon as fhall be thereunto next prefented promoted inftituted or admitted. Which profits before this act belonged either to the church, and fo were in the difpofition of the patron and bishop; or to the ordinary, or other perfon to whom by custom they appertained, and fo by the previous confent of fuch perfon might be yielded to the commendatary: but the next incumbent being a perfon uncertain, cannot give fuch confent, and by confequence the revenues of vacancies, fince the making of the faid act, cannot be given; which feems to be the true reafon of the utter difufe of that fort of commendams, with regard to prefbyters; however it hath continued, by prerogative royal, in favour of bishops. Gibf. 914. But a commendam capere (that is, a dignity or benefice taken by a bishop after confecration, and without inftitution) doth not create a proper incumbency. The canonifts 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, adminiftrator, or procurator of the church, during fuch vacancy; and they who hold that they were fomething more (because commendam is a title owned by the canon law) pretend not to fay, that they were incumbents; they hold B 3 only For what time may be. only by a corrupt and precarious title, invented on purpofe to elude the laws against pluralities. In like manner, though the books of common law fay, that a commendatary by retinere remains full incumbent, and may plead as fuch; yet of a commendatary by capere they fay, that a dean by fuch commendam cannot confirm a leafe made by the bishop, and that a commendatary parfon in that way cannot have a juris utrum, nor take to him and his fucceffors, nor can fue or be fued in a writ of annuity. Gibf. 914. But on the other hand, there is one circumftance which makes much for the real title of fuch ancient commendataries as were fuch by retinere; namely, that we find thefe benefices declared vacant by the refignation of the commendataries, of which there are feveral inftances to be met with in the archbishop's regifter. Id. 8. Commendam may be temporary or perpetual at the a commendam pleafure of the king. When it is temporary, the precife time is expreffed and limited in the difpenfation; when perpetual, the ftyle is, fo long as he fhall live, and continue bishop of that fee. And in the cafe 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 fuch a term; of both which there have been frequent inftances. And fo anciently, in the cafe of a commendam capere granted to prefbyters; the term, when it went beyond fix months (which was little more than a fequeftration), was fometimes for a year, in cafe a person who had entered into a religious ftate did not return after this year of probation; fometimes, till another perfon was in orders; fometimes, to continue at the pleasure of the ordinary; and fometimes for life. But at prefent in the cafe of bishops, the books of common law feem generally to fall into the opinion, that a commendam capere ought to be perpetual; becaufe (there being no previous title by inftitution, as it is in the cafe 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 leaft in point of perpetuity (); and Dr. Gibfon fays, he believeth that in fact there is no inftance of a commendam capere in the ecclefiaftical records, but what hath been unlimited or perpetual: tho', whatever the right be that it conveys, it feemeth (in reafon) to be capable of being as well tempo rary as perpetual. Gibf. 914. 9. According to the duration of a commendam and How far the the commendatary, the right of the crown to prefent upon king's right to promotion is ferved or not ferved. If the commendam be prefent is ferved thereby. limited to a certain term, the king fhall prefent by prerogative at the expiration of fuch term, notwithstanding the previous grant of a commendam; unless it fo fall out, that the commendatary bishop dies or refigns before the expiration of the term; for in fuch case, the church becoming void not by ceffion but by death or refignation, the turn of the crown is ferved, and the patron fhall prefent (m). And fo it is likewife ferved, if the commendam was originally unlimited, that is (according to the language of the faculties) during the life of the perfon and his poffeffion of fuch fee; because this amounts to a presentation, and therefore in this cafe also, the right of the crown is ferved, and the patron prefents. Gibf. 915. But if a bishop who is poffeffed of a commendam, is tranflated to another fee, and fo a new title accrues to the crown by a new promotion; the fame commendam may be continued, if the king pleafeth: but it must be by a new difpenfation, granting it to be held with the new bishoprick. Id. (n) 'Tis true commendam. 10. Commendam temporary in retinere may be renewed Continuation or and prolonged; that is to fay, before the original incum- renewal of a bency ceafeth by the expiration of the first difpenfation, a fecond difpenfation may be granted, to prevent the avoidance, and continue the incumbency. commendams being defigned to fupport the dignity of the epifcopal character (which fince the time of the reformation hath greatly needed fupport in many fees) they have ufually been granted in perpetuity; in which cafe, there was no occafion to renew them. But that fuch 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 initance, by the bishop of Carlisle in the year 1567, and in another inftance the very next year by the bishop of Chester. But the more ancient books of the Faculty office being all loft, we cannot certainly tell what effect thefe applications (m) 4 Mod. 212. (n) Noy 94. had; B 4 1 |