Abridgment of Ecclesiastical Laws, Treatise · Chapter 14
CHAP. XIV.
Of Conſolidation or Ʋnion of Churches.
1. Conſolidation, what; whence ſo called; by whom, and in what caſes it may be made.
2. The ſeveral kinds of Conſolidation.
3. The reaſons and grounds thereof in the Law.
4. The Requiſites of Law in order to a Conſolidation.
5. How Conſolidation is practiſed here with us, and how in France.
6. The diviſion or diſtinction which the Canon Law makes of Conſolidation.
(1.) COnſolidation is the uniting, combining, or conſolidating of two Churches or Benefices in oneaBroo. tit. Ʋnion. 37 H. 8. c. 21.. This cannot be done without the conſent of the Biſhop, the Patron, and the Incumbent. This word thus uſed in an Eccleſiaſtical ſenſe, takes its denomination from what the Civil Law intends by conſolidating the Intereſt of Poſſeſſion and Property together, which in that Law is called, Conſolidatio uſusfructus & proprietatis; As when a man having the Uſufruct of certain Lands by way of Rent, Deviſe, or otherwiſe, doth then and at the ſame time purchaſe the Fee or Inheritance thereof; hoc caſu Conſolidatio fieri dicitur. Inſtit. de Ʋ ſufruct. §. 3. So that in ſuch Secular concerns, according to that Law, it properly ſignifies an Uniting of the poſſeſſion, occupation, or profit, with the Property of the thing ſo prepoſſeſſed; which is ſometimes called an Ʋnity of poſſeſſion, 37 H. 8. c. 21. 1 Ed. 6. c. 9. 17 Car. 2. c. 3.being a Joynt-poſſeſſion of two Rights in the ſame perſon by diſtinct and ſeveral Titles. By the Statute of 37 H. 8. cap. 21. it was lawful to make an Union or Conſolidation of two Churches in one, whereof the value of the one was not above ſix pounds in the King's Books of the Firſt-Fruits, and not above one mile diſtant from the other. And by a late Statute of 17 Car. 2. cap. 3. it may be lawful for the Biſhop of the Dioceſs, Mayor, Bayliffs, &c. of any City or Town Corporate, and the Patron or Patrons, to unite two Churches or Chappels in any ſuch City, Town, or the Liberties thereof; provided the Churches ſo united exceed not the annual value of an hundred pounds, unleſs the Pariſhioners eſire otherwiſe.St. 17 Car. 2. c. 3. See the Statute at large.
(2.) By this Conſolidation or Union of Churches one of the Benefices becomes void, yea extinct in Law, Illud enim quod alteri unitur, extinguitur, neque amplius per ſe vacare dicitur. DD. in c. cum acceſſ…ſſent. de Conſtit. & Iudo. Gomez. in Regul. Cancell. Gall. de Trien. poſſeſſ. q. 8. Jo. Andr. ad Clem. 1. de Supplen. Neglig. Praelat. Again, the Law in expreſs terms ſays, That intereunt Beneficia Ʋ nione, quando duo vel plura Beneficia in unum in perpetuum conjunguntur. c. Sicut unire. de Exceſs. Praelat. Of this Conſolidation or Union the Law makes a threefold diſtinction, or it may be done three ſeveral ways in conſtruction of Law, (1) When one and the ſame perſon is ſet or appointed over two Churches. Can. & temporis qualitas. 16. q. 1. c. 1. Ne Sede vacante. This with us amounts to a Plurality, but not unto a Conſolidation or Union. (2) When one Church is ſo united to another, that that which is United, amittit jus ſuum, & eo utitur cui fit unio. c. Recolentes. §. ſin. de Stat. Monac. & Lindw. de Locat. & Conduct. c. licet glo. verb. Appropriationum. (3) When Two or more Churches or Benefices are ſo united together, as that the one is not ſubject to the other, in which caſe Quod melius eſt, retinetur. arg. c. Medicamentum. de poenit. diſt. 1. gl. in regu. 11. Cancell. Innoc. 8.
(3.) There are ſeveral Cauſes or Reaſons in the Law for this Conſolidation, Incorporation, Annexation, or Union of Churches; and they are chiefly theſe five, (1) An unlawful dividing of thoſe Churches or Eccleſiaſtical Benefices, precedent to their reintegration or intended reconſolidation, as when ſuch as had been formerly united, were illegally divided. Otho. Conſtit. Ne Eccleſia una, c. cum ſit ars. gl. ib. in ver. Reintegrentur. (2) For the better Hoſpitality, and that the Rector might thereby be the better enabled to relieve the Poor. 25. q. 2. poſteaquam. §. his ita. & dict. gl. Otho. Conſt. (3) The overnighneſs of the Churches each to other in point of Scituation, inſomuch that one Rector may commodiouſly diſcharge the Cure of both, by reaſon of the vicinity of the places. Arg. extr. de Praebend. c. Majoribus. (4.) For or by reaſon of a want or defect of Pariſhioners, as when one of the Churches is deprived of her people by ſome incurſion of an Enemy, or by ſome mortal Diſeaſe or Sickneſs, or the like. 11. q. 1. Ʋnio. & gloſſ. ubi ſupra. (5.) For and by reaſon of the extream Poverty of one of the Pariſhes. Extr. de eta. & qua. eam te. Extr. de Praebend. vacant. in fin. vid. Tholoſ. Syntagm. jur. lib. 17. cap. 5. nu. 7. All which Cauſes or Reaſons of Conſolidation are enumerated out of the Canon Law by John dè Aton in his Gloſs upon Cardinal Otho's Conſtitutions, and whatever other cauſes of Conſolidation are aſſerted by the DD. may be all referr'd to one or other of the foreſaid Reaſons. Likewiſe, there are certain Solemnities required by the Canon Law, to be uſed and obſerved in the conſolidation and union of Churches and Eccleſiaſtical Benefices, the impracticability whereof in this Realm, having otherwiſe provided in ſuch caſes, can have no ſuch malign influence in Law, as to invalidate the thing for want of ſome Circumſtantials, ſo long as there is a retention of the Eſſentials, according to the Laws and Conſtitutions of this Kingdom. Ʋnio facta ab Epiſcopo debet intervenire Conſenſus Capituli ſui. Clem. ſi Ʋna. de reb. Eccl. non aliend. Item requiritur Conſenſus Patroni. Clem. in agro. §. ad haec de Stat. Mona. Item, Nullum habet effectum vivente Beneficiato. Card. Zab. in dict. Clem. Si una, &c. Item, Verus valor Beneficiorum Exprimi debet, &c.
(4.) In all Conſolidations regularly there ought to be Cauſa Neceſſitatis vel Ʋtilitatis: Alſo the juſt and true value of the Benefices ought to be known, as well of that which is to be united, as of that to which the other is unitable; in order whereunto there ought to iſſue a Commiſſion of Enquiry touching the ſaid cauſe and value, at which all perſons pretending Intereſt, are to be or may be preſent upon Summons or Notice thereof timely given them to that end; for no Conſolidation or Union of that kind ought to be made non vocatis vocandis. Rebuff. Reſp. 195.
(5.) This Form touching Conſolidations and union of Churches and Eccleſiaſtical Benefices is practiced in France; which, though there appears nothing therein but what ſeems conſonant to Reaſon, yet the Statute-Laws of this Realm have herein made other proviſion in this matter: And that which we now commonly call Conſolidation, the Canon Law, which is beſt and moſt properly acquainted with this matter, calls Ʋnion; Touching which there are in uſe and practice many things in divers Nations and Countries, which were Incognita to the Interpreters of that Law, and not in all things conſonant to each other; thereby rendring this Subject the more perplexed by reaſon of the ſeveral modes of practice, diverſified according to the various Conſtitutions of ſeveral Nations reſpectively; for which reaſon the Interpreters of the Canon Law are the leſs poſitive in reducing the ſtate of this matter to ſuch a point of certainty, as may be ſaid Infallible in Law; only they all agree in ſome certain Eſſentials to an Union, as alſo (for the moſt part) in this Definition thereof, viz. That Ʋnio eſt Beneficiorum ſeu Eccleſiarum ab Epiſcopo, vel ab alio Superiore facta annexio. To which this alſo may be added by way of deſcription, though not by way of definition, That quando fit unio, Eccleſia in proprietatem concedi ſolet. Cap. in cura. de jur. Patronat. and it muſt be Ʋnio Beneficiorum, for there cannot be an Union unleſs there be plura Beneficia in the caſe. L. 1. & per totum. ff. de Optio. Legat. Alſo it is Beneficiorum ſeu Eccleſiarum, becauſe the word [Benefice] is in it ſelf a general term comprehending all Benefices, great and ſmall, Regular and Secular, Dignities and Offices: C. 1. de reg jur. in 6. c. extirpandae. §. qui vero. de Praebend. So that Biſhopricks, as well as other Benefices, may be united and annexed; But a Biſhoprick, which the Law calls culmen Dignitatis, doth not regularly fall under the name or notion of Benefice: c. pen. de Praebend; and yet two Biſhopricks may be united. c. Decimas, & ſeq. 16. q. 1. Rebuff. de Ʋnion. Benefic. nu. 4, 5.
(6.) This Conſolidation or Union at the Canon Law, is either Perpetual or Temporal; if Perpetual, then it muſt be ſo expreſſed in the Union, that in perpetuum univimus: c. expoſuiſti, de Praeb. if Temporal, then it is only for his life in whoſe favour the Ʋnion is made, c. 1. ne Sede vacante, and at his death it expires, c. quoniam Abbas, de Offic. Delegat. But the Practice with us knows nothing of the Temporal Member of this diſtinction; nor is the practice thereof at this day received in France, Rebuff. ubi ſupr. nu. 9. ſuch Temporal Unions being only in contemplatione perſonae, non Eccleſiae, whereas the Law is, Eccleſiae magis favendum eſt, quam perſonae. Dic. c. 1. & c. requiſiſti, de Teſta. & Oldr. Conſil. 257. And where two Parochial Churches are conſolidated or united, that Church to which the other is united, ſhall be the Superiour and principal, the other which is united, is the Inferiour and Acceſſory, yet ſhall enjoy the Priviledges of that Church to which ſhe is united. c. recolentes, in fin. de ſtat. Monach. Laſtly, The more worthy Benefice is never united to the minus digno, and therefore a Parochial Church may not be united to a Chappel, ſed è contra. Sic c. expoſuiſti, de Praebend.