Abridgment of Ecclesiastical Laws, Treatise · Chapter 4
CHAP. IV.
Of the Guardian of the Spiritualties.
1. What the Office of ſuch a Guardian is, and by whom Conſtituted.
2. The power of ſuch Guardians in vacancy of Archbiſhopricks.
3. What Remedy in caſe they refuſe to grant ſuch Licenſes or Diſpenſations, as are legally grantable.
4. Who is Guardian of the Spiritualties, of Common Right.
5. What things a Guardian of the Spiritualties may do.
(1.) GƲardian of the Spiritualties (Cuſtos Spiritualium, vel Spiritualitatis) is he to whom the Spiritual Juriſdiction of any Dioceſs (during the vacancy of the See) is committedaVid. St. 25▪ H. 8. c. 21. & 13 Eliz. c. 12.. Dr. Cowell conceives, that the Guardian of the Spiritualties, may be either Guardian in Law, or Jure Magiſtratus (as the Archbiſhop is of any Dioceſs within his Province) or Guardian by Delegation, as he whom the Archbiſhop or Vicar General doth for the time depute. Guardian of, &c. by the Canon Law pertains to the Appointment of the Dean and Chapter. c. ad abolend. Extr. Nè ſede vacante aliquid innovetur: But with us in England, to the Archbiſhop of the Province by Preſcription. Howbeit (according to Mr. Gwin in the Preface to his Readings.) divers Deans and Chapters do challenge this by Ancient Charters from the Kings of this Realm. Cowell verb. Cuſtos. This Eccleſiaſtical Office is ſpecially in requeſt, and indeed neceſſarily in the time of the Vacancy of the Epiſcopal See, or when the Biſhop is in remotis agendis about the publick Affairs of the King or State; at which time Preſentations muſt be made to the Guardian of the Spiritualties, which commonly is the Dean and Chapter: or unto the Vicar General, who ſupplies the place and room of the BiſhopbCo. 1. par. In…tit acc.. And therefore if a man Recover, and have Judgment for him in a Quare Impedit, and afterwards the Biſhop (who is the Ordinary) dieth. In this caſe the Writ to admit the Clerk to the Benefice muſt be directed to the Guardian of the Spiritualties, Sede vacante, to give him Admiſſion: But if before his Admiſſion another be created Biſhop of that See, and Conſecrated Biſhop; in that caſe the power of the Guardian of the Spiritualties doth ceaſe, and the party may have a new Writ to the new Biſhop to admit his Clerkc18 Eliz. Dyer 35….. A Guardian of the Spiritualties may admit a Clerk, but he cannot confirm a Leaſe*Caſe Evans and Aſcough. Latch. Rep…..
(2.) The Guardian of the Spiritualties takes place as well in the vacancy of Archbiſhopricks as Biſhopricks, and hath power of granting Licenſes, Diſpenſations, and the like, during ſuch Vacancies, by the Statute of 25 H. 8. whereby it is provided and enacted, That if it happen the See of the Archbiſhop of Canterbury to be void, that then all ſuch Licenſes, Diſpenſations, Faculties, Inſtruments, Reſcripts, and other Writings which may be granted by virtue of the ſaid Act, ſhall (during ſuch vacation of the ſaid See) be had, done, and granted under the Name and Seal of the Guardian of the Spiritualties of the ſaid Archbiſhoprick, according to the tenor and form of the ſaid Act, and ſhall be of like force, value and effect, as if they had been granted under the Name and Seal of the Archbiſhop for the time being. Where it is alſo further enacted,
(3.) That if the ſaid Guardian of the Spiritualties ſhall refuſe to grant ſuch Licenſes, Diſpenſations, Faculties, &c. to any perſon that ought upon a good, juſt, and reaſonable cauſe to have the ſame, then and in ſuch caſe the Lord Chancellor of England, or the Lord Keeper of the Great Seal, upon any complaint thereof made, may direct the Kings Writ to the ſaid Guardian of the Spiritualties, (during ſuch Vacancy as aforeſaid) refuſing to grant ſuch Licenſes, &c. enjoyning him by the ſaid Writ, under a certain penalty therein limited at the diſcretion of the ſaid Lord Chancellor or Lord Keeper, that he ſhall in due form grant ſuch Licenſe, Diſpenſation, Faculty, &c. according to the requeſt of the Procurers of the ſame, or ſignifie into Chancery by a day certain, for what cauſe he refuſed to grant the ſame: where, if upon ſuch Certificate it ſhall appear, that the cauſe of ſuch Refuſal was reaſonable, juſt, and good, that then it ſhall be admitted and allowed; otherwiſe, there may iſſue thence by virtue of the ſaid Statute a Writ of Injunction, commanding the ſaid Guardian of the Spiritualties, ſo refuſing as aforeſaid, to make ſufficient grant of ſuch Licenſe, Diſpenſation, &c. by a certain day; and if after the receipt of ſuch Writ, the Guardian of the Spiritualties ſhall yet refuſe to grant the ſame, and ſhew no juſt or reaſonable cauſe for ſo doing, that then and in ſuch caſe the ſaid Guardian of the Spiritualties ſhall incur ſuch penalty to his Majeſty, as ſhall be limited and expreſſed in the ſaid Writ of Injunction; And moreover in ſuch caſe, a Commiſſion under the Great Seal may iſſue to Two Spiritual Prelates or perſons to be nominated by his Majeſty, Authorizing them to grant ſuch Licenſes, Faculties, and Diſpenſations, as were ſo refuſed to be granted by the Guardian of the Spiritualties, as aforeſaid: And what in this caſe is here enjoyn'd to the Guardian of the Spiritualties during the vacancy of the Archbiſhoprick, is likewiſe expreſly by the ſaid Statute to the Archbiſhop himſelf in time of Plenarty or Non-vacancy of the See.
(4.) Of the Metropolitan, the Dean and Chapter is of Common right the Guardian of the Spiritualties: Of Inferiour Biſhopricks in times of Vacation, the Dean and Chapter of the See is of Common right the Guardian of the Spiritualties, and not the Metropolitan dContra 31 H. 6. 10. admit. Dub. 17 E. 3. 23. b. where it is ſaid, per Stou…. that in the time of R. 1. and ever before, the Metropolitan was Guardian till the time of H 3 &c. Roll. Abr. ver▪ Prerogative, lit. 5.. Yet 5 E. 2. Quare impedit, 165. Admit. that during the vacancy of the Biſhoprick of Durham, the Archbiſhop of York is Guardian of the Spiritualties. And 23 E. 1. Rot. Clauſ. Memb. 4. the Prior of Chriſt-Church in Canterbury was Guardian of the Spiritualties in time of vacation of the Archbiſhoprick. Of which Archbiſhoprick the Dean and Chapter is Guardian of the Spiritualties in the time of vacancy. Alſo of the Archbiſhoprick of York, the Dean and Chapter is Guardian of the Spiritualties in the vacancy thereof, and not the Archbiſhop of Canterbury, for that it is a diſtinct Province, not ſubordinate to, &c. contra 31 H. 6. 10. Admit. for there a Parſon of the Province of York had aid of the Metropolitan Guardian of the Spiritualties of the Archbiſhoprick of York in time of vacancy of that ArchbiſhoprickeR…l. Abr. ibid..
In the Caſe of Grange againſt Denny it was ſaid by Coke, That of common Right,Mich. 13 Jac. B. R. Rot. 165. Grange verſ. Denny. Bulſtr. Rep. by the Common Law, the Dean and Chapter, Sede vacante, of the Biſhop, is Guardian of the Spiritualties, as appears by Paſch. 17 E. 3. fo. 23. but that now the Archbiſhops have uſed to have this by way of Compoſition. And in the ſame Caſe it was ſaid by Doderidge, That every Archbiſhop hath a Dioceſs and a Province, and of his Dioceſs he is a Biſhop, and of his Province he is Archbiſhop, and within his Province he is to be Viſitor of all the Churches within his Province; and Sede vacante of any Biſhop within his Province he himſelf is Guardian of the Spiritualties, of all the Biſhopricks within his Province: but Sede vacante of his own Dioceſs, the Dean and Chapter of this is Guardian of the Spiritualties; and that no mention is made in the Books of the Common Law of any ſuch Compoſition aforeſaid, but that the Guardian of the Spiritualties is to be according to the difference before put, between a Province and a Dioceſs.
5. The Learned Serjeant Roll in his Abridgment doth acquaint us out of the Ancient Books, That a Guardian of the Spiritualties may Admit and Inſtitute a Clerk preſented to himf17 E. 3. 23.. That the King did preſent to the Guardian of the Spiritualties of the Archbiſhoprick of Dublin (Sede vacante) for a Church in Ireland g2 E. 1. Rot. Pat. Memb 5.. That the Guardian of the Spiritualties may try Baſtardyh41 Aſſ. 29. adjudged.. That Letters were directed to all the Biſhops, and (in the Vacancy) to the Guardian of the Spiritualties, to make Prayers for the King in his Journey in France i27 E. 1▪ Rot Clauſo Memb. 11. Dorſo.. And that the Prior of Chriſt-Church in Canterbury, Guardian of the Spiritualties during the Vacancy of that Archbiſhoprick, had a Felon delivered to himk23 E. 1. Rot. Clauſo Memb. 4.. But in the time of the Vacancy of the Biſhop, the Archbiſhop is Guardian of the Spiritualties, and not the Dean and ChapterlBr…wnl. Rep. p… 1. M…ch. 1… Jac. Caſes in Law, &c..