Abridgment of Ecclesiastical Laws, Treatise · Chapter 21
CHAP. XXI.
Of Commendams.
1. What a Commendam is, or the Legal deſcription thereof.
2. The King may diſpence with the holding of divers Benefices in Commendam, notwithſtanding the Canon of the Lateran Council againſt Pluralities.
3. Three Degrees of Commendams by the Canon Law.
4. A deſcription of a Semeſtral and Temporary Commendatory.
5. The proviſion the Pope made in granting Commendams; certain Benefices in the Church of Rome never given in Commendams.
6. What the Canon Law in Commendams ad Tempus or Perpetuo.
7. The grand Caſe of a Commendam at the Common Law, between Kiffin and Aſcough, and therein great variety of Learning touching that Subject.
8. Several Conſiderations in Law touching Commendams.
9. An Iriſh Caſe, with great variety of Learning, in reference to this Subject.
(1.) COmmendam (Eccleſia Commendata) is a Benefice or Eccleſiaſtical Living, which being void, is commended to the charge and care of ſome ſufficient Clerk, to be ſupplied until it may be conveniently provided of a Paſtor: And this was the Original of what we now commonly call Commendams. Durand. de Benefic. lib. 5. cap. 7. That perſon to whom the Church is thus Commended, hath the Fruits and Profits thereof only for a certain time; whereby the nature of the Church is not changed, but is as a thing depoſited in his hands as it were in Truſt, being concredited only with the care and cuſtody thereof, which may be revoked. Thus when a Parſon of a Pariſh is made the Biſhop of a Dioceſs, 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 Commendam aHob. Rob. fo. 144. Latch. Rep. fo. 236, 237.. So that it may properly be thus defined, Commenda eſt Eccleſiae Cuſtodia alicui Commiſſa in tempus gratia evidentis neceſſitatis & utilitatis. Gloſſ. in verb. Commendare, c. Nemo deinceps, de Elect. in lib. 6. & Andr. in dict. Gloſſ. For hereby the Biſhop commits the care and cuſtody of a Vacant Church to ſome one, whom he Conſtitutes as a general Adminiſtrator thereof. Corraſ. de Sacerd. mater, p. 1. c. 6. nu. 3. & dict. c. Nemo. for Commendare in this ſenſe is no other than Deponere. l. Publius, ff. Depoſiti, & l. Commendare, ff. de verb. Sign. And he to whom the ſame is ſo committed is in the Law termed Commendatarius, having the cuſtody of a Vacant Church and the Fruits thereof only for a time; and the Beneficium Commendatum we call Commendam. Petrus Gregorius makes this Commendam of a Church to be on a double account, viz. either in utilitatem Eccleſiae, or Commendatarii; In the former caſe, he ſays, the Commenda gives no Title to the Commendatary of the Benefice, but is only a Cuſtody or Truſt which may be revoked, and conſequently repugnant to the nature of a Benefice, which is Perpetual: In the other Caſe, the Benefice is held to be a Commenda made in utilitatem Commendatarii, which he may hold and poſſeſs as long as he lives. Petr. Greg. de Benef. cap. 10. nu. 13.
(2.) By a Canon of the Lateran Council no perſon Eccleſiaſtical could hold Two Benefices with Cure of Souls ſimul & ſemel, but by the taking of a Second the former would be void. Conſ. Later. & F. N. B. 34. L. & Co. par. 4. 75. & Lindw. Conſil. Provin. de Praebend. cap. Audiſtis; yet might the King it ſeems by the Common Law, notwithſtanding that Canon, grant Diſpenſations to hold divers Benefices in Commendam; as at this day he may notwithſtanding the Stat. of 21 H. 8. For the Statute of 25 H. 8. that takes away the Popes uſurped power of granting Commendams, &c. in this Realm, doth veſt it in the Crown de jure, as alſo doth the Statute of 1 Eliz. and (from and under the Crown) in the Archbiſhop of Canterbury, his Commiſſaries, &c. And as heretofore the Pope did by Uſurpation in this Realm, ſo now de jure & ex Regali Authoritate, may the King grant unto a Conſecrated Biſhop a Diſpenſation Recipere & obtinere Beneficium cum Cura animarum, and to hold the ſame in Commendam bCo. par. 4. 75. Holland's Caſe..
(3.) In the Caſe of Colt and Glover againſt the Biſhop of Coventry and Lichfield, according to Sir Hen. Hobart Lord Chief Juſtice, out of the Canons, Commendams are ſaid to be of Three Degrees, one Semeſtris, another Perpetua vel ad vitam, a third Intermedia or Diuturna, ſed Limitata; and ſometimes called Temporaria or Temporalis, vel ad certum Temporis ſpatium Limitata. Clem. v. Extra. l. 3. de Praebendis, c. 2. The Commenda Semeſtris did ariſe out of natural equity, that in the time of the Patrons reſpite given him to Preſent, the Church ſhould not be without a Proviſional Paſtor, which was a Law of Neceſſity agreeable to the Law of Nature. But after the Lapſe juſtly incurred, the Commendam is to ceaſe, or then the Ordinary may Collate. The Commenda Perpetua vel ad vitam, is that which cannot be for a leſs time than for the life of the Commendatary abſolute. And the Commenda Intermedia, diuturna, or Temporalis, vel ad certum temporis ſpatium Limitata, is, when a Commenda is to a perſon not for his life abſolutely, but ſo long as he ſhall be Biſhop of ſuch a place, or the like. Each of which Degrees of Commendams doth refer to the Commendam obtinere, capere, & apprehendere. A Diſpenſation Commendam recipere, which ſhall make a Title, ought to have three Incidents; (1) It ought to be, Recipere & convertere in uſus proprios. (2) It ought to be ad utilitatem Eccleſiae, vel Parſonae. (3) It ought to have the Aſſent of the Patron. And he that is but mere Commendatarius is Accountable to the Ordinary. Vid. Caſe Evans and Aſcough, in Latch. Rep. And not to the Commendam retinere, which in truth is no Commendam, though commonly ſo called; but is only a Faculty of Retention and Continuation of the Benefice in the ſame perſon and ſtate wherein it was, notwithſtanding ſomething intervening, as a Biſhoprick or the like, which without ſuch a Faculty would have avoided it.
(4.) The Semeſtral Commendatary is not reputed Praelatus, but Procurator & Adminiſtrator, habens titulum Canonicum; It doth make Fructus ſuos, but ad providendum ſibi & Miniſtris; and what remains, is to be converted to the uſe of the Church. Greg. X. in Concil. Lugd. An. 1275. Gloſs. in cap. Nemo. 15. De Electione in Sexto. And John d'Atbon, An. 1248.upon Othobou's Canon or Conſtitution De Commendis Eccleſiarum, ſays, That Commendare idem eſt quod Deponere, ſeu Cuſtodiae Committere: And all agree that ſuch a Commendatary is not Praelatus, but Procurator; habet tamen Legitimam Adminiſtrationem ad Colligend. & providend. Miniſtris; ea vero quae ſuperſunt, ad utilitatem Eccleſiae convertenda. Commendare (ut ait Papin) nihil aliud eſt quam deponere. l. Lucius, ff. Depoſit. & l. Commendare, ff. de verb. Sig. & l. Publia, ff. Depoſit. & Gloſs. ibid. But as to a Perpetual Commendam, Perpetuity, and the diſpoſal of the Fruits muſt concurcGomez. in Regul. de Trien. poſſ.. And as a Patron cannot Preſent to a Church Full, ſo neither can a Commendam be made to a Church certain that is then Full; for there is no difference betwixt a Commendam and a Preſentation, but that the one Preſents the Parſon to the Church, the other commits the Church to the Parſon, both being incompatible when the Church hath his proper Rector; The Canons alſo ſpeaking of Commendams, rely much upon Eccleſias vacantes, neceſſitatem & utilitatem Eccleſiae vacantis. And Commendams were not made anciently in general terms, to any Churches uncertain, but to ſome certain Church then void. Alſo the Patrons conſent is neceſſary to a Commendam, ſecundum omnes, Patroni conſenſus, & omnium qui laedi poſſunt, requiritur; And again. Quod ſatis obſervant Praelati, qui niſi Praeſentati per Patronos, non faciunt Commendas. Gloſs. in Concil. Lugd. & Othob. Provin. Hob. Rep. in dict. Caſ. Colt and Glover, verſ. Biſhop of Covent. and Lichfield. Likewiſe, it is further aſſerted by Sir Hen. Hobart in the Caſe aforeſaid, That the Temporary Commenda brings with it ſo many Incongruities, Inconveniences, and Abſurdities in Law, as cannot be born; for thereby the Church is neither altogether void, as it remains in the Caſe of a Commendam Semeſtris, which is but a Sequeſtration of Fruits and Cure till the Patron Preſents; neither is the Church abſolutely Full, for then it ſhould be Plena & Conſulta, h. c. plena de poſſeſſore, & conſulta de Rectore dHob. ubi ſupr..
(5.) Commenda in the Canon Law hath a nigh affinity to Collation: Rebuff. in §. Statuimus, in ver. conferantur. de Collat. and is a Canonical Inſtitution, or a Canonical Title: cap. Dudum, in 2. de Elect. Etſi in titulum non detur Eccleſia, and when the Commendatary dies, the Benefice is void, ut alia in titulum poſseſsa: Rebuff. de pacif. Poſſeſs. nu. 42, 43, 44. The Pope was wont to provide by a Commendam, when he gave a Benefice in Cuſtodiam, that he that had the Cuſtody thereof, ſhould not thereof have fructus ſuos: cap. Nemo, de Elect. in 6. but ſhould reſtore the ſame: Can. placuit 10. q. 3. unleſs he expreſs'd in the Grant (as he often did) that the Commendatary ſhould convert the Fruits thereof to his own uſe. It is in Law provided by the Commendam, that the Commendatary ſhall not be, nor ſaid to be Titularius Eccleſiae conceſsae, becauſe he hath another at the ſame time, and together with that he cannot aliam habere in titulum: cap. dudum, in 2. de Elect. cap. fin. 21. q. 1. For the Law compares the Relation that is between a Rector and his Church to that of Man and Wife, and in expreſs terms calls it Matrimonium; cap. ſicut vir. q. 1. and ſays, it is as odious to have more Benefices than one at once, as more Wives than one at once; cap. de multa de Praebend. whence it may aptly be inferr'd, That Plurality is a kind of Spiritual Bigamy or Polygamy. Moreover, by the Canon Law a Commendam may be either for a certain time, or for life: cap. Extirpandae, §. quia vero. De Praeben. & c. nemo. de Elect. in 6. And during the vacancy of a See the Chapter may grant the Commendam ad tempus: c. ſignificatum. de Praeb. & dict. c. nemo. If the Commendam be granted in Perpetuity or for life, it is vice tituli: Nam ad tempus Collatio fieri nequit Beneficii: c. ſi gratioſe. de Reſcript. & c. ſatis perverſum. 66. Diſt. In the Church of Rome there are certain Benefices which were never wont to be given in Commendam, ſuch as that of the Holy Ghoſt in Sicily, St. John of Jeruſalem, St. Anthony, the Bleſſed Virgin Mary, and others; and this by a Conſtitution of Pope Alexander the Sixth as a mark of grace; becauſe they were given to the Fraternity of theſe Orders in titulum. Rebuff. de Commendis, nu. 41. Prox. Benef.
(6.) Whether any man Inferiour to a Biſhop, may Eccleſiam Commendare, is a Queſtion moved by Rebuffus, who holds it in the Affirmative, provided it be a Commenda only ad Tempus, that is, only for Six months: Rebuff. Reſpon. 71. de Commenda. which opinion Panormitan ſeems to be of, by ſaying, Inferiorem à Papa non poſſe Perpetuo Commendare, ſed ad Tempus ſic: Panorm. in c. ſi conſtiterit, in 1. notab. de Accuſat. For the Canoniſts of the Romiſh Church do hold, That Commendare in perpetuum poteſt ſolus Papa, Ad tempus ſex menſium quilibet Ordinarius poteſt: Likewiſe Panormitan ſays further, That a Chapter (Sede vacante) poſſit uſque ad ſex menſes Commendare: Panor. & Felin. in c. cum olim, 11. q. de Major. & obed. & Jo. Franciſc. in Tract. de Offic. & poteſt. Capituli Sede vacante. in 2. part. q. 3. whence Rebuffus concludes, that any other qui Beneficia conferre poteſt may do the like; it being as a Rule in Law, That illud videtur permiſſum, quod non eſt prohibitum: c. nam concupiſcentiam. de Conſti. & L. praecipimus. C. de Appellat. The Canon Law, to which only we are beholding for the cleareſt apprehenſions we can poſſibly have of Commendams, allows a very extenſive Latitude to the Pope in the granting and revoking thereof; but this doth not concern us, further than as the Popes Eccleſiaſtical power, heretofore exerciſed in this Realm by way of Uſurpation, is now veſted in the King de jure; yet it will be agreed on all hands, That a Commendam in the very nature of it, is meerly and properly Cuſtodial, that Church or Benefice being then granted in Commendam, quando in cuſtodiam, ſeu Cuſtodiae cauſa datur: c. nemo. de Elect. in 6. And as he who hath only the Cuſtody of a thing, non facit fructus ſuos: ſo neither he (according to the Canon Law) who hath a Commendam, without the Popes ſpecial grant thereof to the Commendatary: c. placuit. 10. q. 3. Rebuff. de Commenda, who yet by the ſame Law poſſit expenſas facere ex reditibus Beneficii Commendati, ſumere ex eo alimenta, & debita perſolvere, ſicut is qui titulum habet: c. 1. de Solutio. hoc afferit Archidiac. in cap. qui plures. 21. q. 1.
(7.) The grand Caſe of a Commendam was that of Evans and Kiffin againſt Aſcuth, which being two daies argued by the Judges, and by Noy Attorney, is acutely and ſuccinctly Reported thus, viz. In Treſpaſs: Dr. Thornbury being Dean of York was choſen Biſhop of Limbrick in Ireland: But before Conſecration or Confirmation, he obtained a Patent with large words, Non obſtante retinere valeat in Commendam the ſaid Deanary, &c. And afterwards he was choſen Biſhop of Briſtol; and then alſo before Inſtallation he obtained another Patent, with a more ample Diſpenſation of retaining the Deanary in Commendam. It was Agreed by all, That the Church or Deanary, &c. in England ſhall be void by Ceſſion, if the Parſon, or Dean, &c. be made a Biſhop in Ireland. For the Canon Law in that is one through all the World. Alſo Ireland is governed by the Laws of England, and is now as part of England by Subordinacy. Note well 45 E. 3. 19. b. Confirmation under the Great Seal of England is good in this Caſe; Confirmation under the Great Seal of England of Preſentation to a Church in Ireland, of the Heir of the Tenant of the King; and that a Diſpenſation under the Great Seal of England is good in this Caſe, without any Patent of it in Ireland, vid. 8 Aſſ. 27. 10 E. 3. 42. An Exchange of Land in England for Land in Ireland is good. Note 20 H. 6. 8 Scir. fac. ſued in England to Repeal a Patent under the Great Seal of Ireland, vid. the Iriſh Statute 2 Eliz. cap. 4. That an Iriſh Biſhop may be made under the Great Seal of England. Note, Stat. 1 E. 6. the Iriſh Biſhops ſhall be Donative by Patent of the King, under the Great Seal of England; yet the King may let them be choſen per Congé d'Eſlire, &c. (1) Noy Attorney Argued at Bar, and ſo ſtated the Points of the ſaid Caſe by themſelves: If a Commendatary Dean by a Retinere in Commendam may well Confirm a Leaſe made by the Biſhop; for it is Agreed, That a Commendatary Dean by Recipere in Commend. cannot Confirm, becauſe he is but a Depoſitarius. Note 19 H. 6. 16. 12 H. 4. 20. 27 H. 8. 15. a Commendatary ſhall be ſued by that Name, and by ſuch a Commend. he may take the profits, and uſe Juriſdiction, and yet is not a Dean compleat. Note, he may make a Deputy for Viſitation, but not for Confirmation of Leaſes. Note, if there be two Deans in one Church, both ought to Confirm. Vid. Dy. 282. Co. Inſt. 30. a. (2) The Second point, if ſuch a Biſhop be choſen to another Biſhoprick, if now the firſt Church in Commend. (admitting that there was a Full Incumbent) be void preſently by the Election and aſſent of the Superiour (viz.) the King: And it ſeemed to him that it was, becauſe there need not be a new Conſecration; and he vouch'd Panormitan, 2. par. 101. The Biſhop of Spires was choſen Biſhop of Trevers, and had the aſſent of the Pope, and that he came to Trevers, and there found another in poſſeſſion; and he would have returned to the former Biſhoprick, and could not. He alſo Cited 8 Rep. Trollop's Caſe, That the Guardianſhip of the Temporalties ceaſe by the Election of a new Biſhop. Note, that Serjeant Henden, who argued on the contrary, vouch'd Mich. 4 Jac. May, Biſhop of Carliſle made a Leaſe to the Queen, and a Commiſſion iſſued out of the Exchequer to take it, and the Dean and Chapter Confirmed it before the Inrolment of it; and yet Adjudged good: That Caſe was for the Caſtle of Horne. Firſt, the Judges having Argued two daies,Hill. 22 Jac. B. R. rot. 1169. Evans and …iffin againſt Aſc…ugh. Noys Rep. Reſolved (1) That all Commendams are Diſpenſations, and that Ceſſion commenced by the Canon and Council of Lateran. (2) That the King may diſpenſe with that Canon, 11 H. 7. 12. For the Pope might, and now by the Statute 21 H. 8. that power is given to the King cumulative by way of Expoſition veteris, and not by Introduction novi Juris; and by that Statute a concurrent power is given to the Archbiſhop of Canterbury, and may be granted to the King, or by the Archbiſhop, &c. (3) That the Diſpenſation after Election to the firſt Biſhoprick and before Conſecration, &c. and alſo the Diſpenſation after Election to the ſecond Biſhoprick, and before Confirmation, is good enough in both Caſes, and he remains a good Dean to Confirm, &c. and afterwards the Judgment in the Caſe, being an Action of Treſpaſs, was given accordingly.
(8.) A Commendam is to be granted Neceſſitate evidenti, vel utilitate Eccleſiae ſuadente, and in the Infancy of the Church quando defuerunt Paſtores they were neceſſary: A Commendam ordinarily is but for ſix months, and he that hath it is Cuſtos only; the other is extraordinary, and that is for life, and he is an Incumbent: The King by his Prerogative Royal may grant a Commendam without any Statute;Hill. 14 Jac. in the Exchequer, Colt verſ. Glover. Roll. Rep. yet if ſuch Commendam ſhall be good, it may be very miſchievous to the Patron: It is it ſeems agreed in the Books of the Common Law, that the uſe of Commendams in their firſt Inſtitution was lawful, but not the abuſe thereof; and that a perpetual Commendam, Hill. 39 Eliz. B. R. Armiger and Holland's Caſe. Cro. par. 1.viz. for life, was held unlawful, and condemned by a Council of 700 Biſhops. It is likewiſe Reported to us, That where the Incumbent of a Church was created a Biſhop, and the Queen granted him to hold the Benefice which he had in Commendam: It was the Opinion of the Juſtices, That the Queen had the Prerogative by the Common Law, and that it is not taken away by the Stat. of 35 H. 8.
(9.Paſch. 9 Jac. C. B. in Ireland, between the King and Cyprian Horſefall and Robert Wale. Davis Rep.) In a Quare Impedit brought by the King againſt Cyprian Horſefall and Robert Wale, on a Special plea pleaded by Wale the Incumbent, the Kings Attorney demurred in Law: The Caſe in ſubſtance was this, viz. the Corporation of Kilkenny, being Patrons of a Vicarage within the Dioceſs of Oſſery, Preſented one Patrick Fynne thereunto, who was Admitted, Inſtituted, and Inducted. After that, during the Incumbency of the ſaid Fynne; Adam Loftus Archbiſhop of Dublin, and Ambroſe Forth Doctor of the Civil Law, being Commiſſioners Delegates for granting of Faculties and Diſpenſations in the Realm of Ireland, according to the Statute of 28 H. 8. cap. 16. by their Letters Dated 9 Octob. 33 Eliz. granted to John Horſefall, then Biſhop of Oſſery, That the ſaid Biſhop unum vel plura Beneficia, curata vel non curata, ſui vel alieni Juriſpatronatus, non excedentia annuum valorem quadraginta Librarum, adtunc vacantia vel quae per impoſterum vacare contigerint, perpetuae Commendae titulo adipiſci, occupare, retinere, omneſque fructus ad Familiae ſuae ſuſtentationem convertere, poſſit, juribus ſive inſtitutis quibuſcunque in contrarium non obſtantibus. Which Faculty or Diſpenſation was after ratified and confirmed by Letters Patents under the Great Seal of Ireland, according to the Statute of 28 H. 8. c. 16. After this, viz. 20 May, An. 38 Eliz. Patrick Fynne the Incumbent died, whereby the ſaid Vicarage being void, and ſo continuing void by the ſpace of Six months, whereby the Biſhop had power to Collate thereunto by Lapſe, the ſaid Biſhop by virtue of the ſaid Faculty or Diſpenſation adeptus eſt, occupavit, & retinuit the ſaid Vicarage perpetuae Commendae titulo, and took the Fruits thereof to his own uſe, until the 13 Febr. An. 1609. on which day the Biſhop died: After whoſe death the ſaid Cyprian Horſefall, having purchaſed the next Avoidance of that Vicarage, Preſented the ſaid Wale, who was Admitted, Inſtituted, and Inducted: And afterwards the King Preſents one Winch, who being diſturbed by the ſaid Horſefall and Wale, the King brought a Quare Impedit. Whether the ſaid Biſhop, when he obtained and occupied that Vicarage by virtue of that Faculty or Diſpenſation, were thereby made compleat Incumbent thereof, ſo as the Church being full of him, no Title by Lapſe could devolve to the King during the life of the Biſhop, was the Principal point moved and debated in this Caſe. And in the Argument of this point (which was argued at the Bar firſt by the Counſel at Common Law, and then by two Advocates well verſed in the Canon Law, and at the Bench by all the Juſtices) Two things were chiefly conſidered by thoſe who argued for the Kings Clerk: (1) Whether the Biſhop could by any Law have and hold that Benefice without ſuch Diſpenſation or Faculty. (2) What effect or operation that Faculty or Diſpenſation ſhall have by the Law. As to the Firſt, they held clearly for Law, That a Biſhop by the Ancient Eccleſiaſtical Law of England, may not hold another Benefice with Cure in his own Dioceſs: and if he hath ſuch Benefice before his promotion to the Biſhoprick, that it becomes void when he is created a Biſhop. And this is the Ancient Law of England, as is often ſaid in the Biſhop of St. David's Caſe, 11 H. 4. & 41 Ed. 3. 5. b. agrees therewith. The Reaſon is, for that the Biſhop cannot viſit himſelf, and he that hath the Office of a Sovereign ſhall not hold the Office of a Subject at the ſame time; as Hankeford ſaid in the ſaid Caſe of 11 H. 4. And on this Reaſon it is ſaid in 5 Ed. 3. 9. That if a Parſon be made a Dean, the Parſonage becomes void, for that the Dignity and the Benefice are not compatible. So no Eccleſiaſtical perſon, by the Ancient Canons and Councils, could have Two Benefices, with Cure ſimul & ſemel, but the firſt would be void by taking aſecond. And this was the Ancient Law of the Church uſed in England long before the Statute of 21 H. 21 H. 8. c. 13.8. cap. 13. which was made in Affirmance of the Ancient Law, as appears in Holland's Caſe. Co. par. 4. And with this agrees the Books of 24 Ed. 3. 33. 39 Ed. 3. 44. a. & N. Br. 34. l. And the Text of the Canon Law, which is the proper Fountain of this Learning, proves it fully; Decretal. de Praeben. & Dignit. c. de multa: Where it is ſaid, De multa providentia fuit in Lateranenſi Concilio prohibitum, ut nullus diverſas Dignitates Eccleſiaſticas, vel plures Eccleſias Parochiales reciperet, contra Sanctorum Canonum inſtituta, &c. Praeſenti Decreto ſtatuimus, ut quicunque receperit aliquod Beneficium, curam habens animarum annexam, ſi prius tale Beneficium habebat, eo ſit ipſo jure privatus, & ſi forte illud retinere contenderit, etiam alio ſpolietur, &c. And with this agrees the Text in Decret. Cauſ. 21. q. 1. viz. In duabus Eccleſiis Clericus conſcribi nullo modo poteſt. So that it is evident, that the Biſhop could not by any Law have or retain that Benefice within his Dioceſs without a Diſpenſation, which is Relaxatio Juris, and permits that to be done, which the Law had before prohibited. It is to be obſerved, That Commenda eſt quaedam proviſio, and therefore Gomez. in Reg. de Idiomate, ſaith, That Commendare eſt Providere, & quod Commenda comprehenditur ſub quibuſcunque regulis de Proviſione loquentibus. And by the Canon Law the Conſent of the Patron is requiſite, where a Benefice is given in Commendam. Lib. 6. Decretal. c. Nemo. where the Gloſs ſaith, Ad Commendam vacabitur Patronus, & ſi qui alii ex tali Commenda laeduntur. Alſo in Conſtit. Othob. de Commendis it is ſaid expreſly, That Conſenſus Patroni ad Commendam requiritur. The Canon Law holds theſe Commendams as very prejudicial, and that in divers reſpects; and therefore ſays, That Experientia docet, occaſione Commendarum cultum Divinum minui, Curam animarum negligi, hoſpitalitatem Conſuetam & debitam non ſervari, ruinis aedificia ſupponi, &c. 6. Extra. cap Paſtoris. And whereas it is ſaid of a Biſhop, That he is to be unius uxoris vir; the Canoniſts expound it, That he ſhall have but one Biſhoprick, or only one Cure, for they ſay, that per Commondam Bigamia contrahitur in Eccleſia: Therefore it was well Reſolved by that good and pious Biſhop, who (when another Benefice was offered him to hold in Commendam) ſaid, Abſit ut cum Sponſa habeam Concubinam. But for the clearer underſtanding of the nature and difference of theſe Commendams, it is further to be conſidered, That Commenda Eccleſiae is nothing elſe but Commendatio Eccleſiae ad Cuſtodiam alterius; and therefore Decret. cauſ. 21. q. 1. Qui plures, the Gloſs there ſaith, Commendare nihil aliud eſt quam deponere. This Commenda or Commendatio Eccleſiae is divers, according to the nature of the Church, and the Limitation or Continuance of the Commenda: for a Commenda may be of a Church either Curatae or non Curatae; and it may be either Temporanea, viz. for a time certain, as for Six months, or Perpetua, viz. during the life of the Commendatary. A Church with Cure may not be given in Commendam, unleſs upon evident neceſſity, or the benefit of the Church, viz. to ſupply the Cure till proviſion be made of a ſufficient Incumbent: And therefore by the Council of Lions it was provided, That a Parochial Church ſhould not be given in Commendam, niſi ex evidenti neceſſitate, vel utilitate Eccleſiae; & quod talis Commenda ultra ſemeſtris temporis ſpatium non duraret: & quod ſecus factum fuerit, ſit irritum ipſo jure, &c. 6. Decretal. c. Nemo. But a Benefice without Cure may be given by the Canon Law for the ſubſiſtence of the Commendatary, vel ad menſam: In that ſenſe the Canoniſts ſay, That Commenda is quaſi comedenda, quia Eccleſiae quae traditur in Commendam quaſi comeditur & devoratur, and ſuch a Benefice may properly be given in perpetuam Commendam. Summa ſummar. tit. Commenda, art. 1, & 2. And by the Rule of the Canon Law, he that comes in per Commendam, is not Praelatus, ſed Procurator tantum, & eſt niſi Cuſtos, ſeu Adminiſtrator, & jus in Eccleſia non habet. 6. Decretal. c. Nemo. & Conſtit. Othobon. de Commendis, fo. 65. And therewith agrees 27 H. 8. 15. where it is ſaid, That the Cardinal of York had the Abbey of St. Albans in Commondam, and yet was not the Abbot. In this Caſe of a Commendam in Davis Rep. the Original or invention of a Commendam is aſcribed to Pope Leo 4. An. Dom. 848. aut eo circiter, as appears lib. Decretal. cauſ. 23. q. 2. where it is ſaid, Ʋnde Leo 4. ſcribit, Qui plures Eccleſias retinet, unam quidem Titulatam, alteram vero ſub Commendatione tenere debet: For by the Ancient Canons and Councils a man could have but one Benefice, and yet it is by experience found convenient, that ſometimes, viz. in caſe of Neceſſity or Ʋtility of the Church, a man may have the Charge and Fruits of more Benefices than one; therefore was that Diſtinction invented and allowed, that although a man ſhall have but one Benefice in Titulo, yet he may have other Benefices in Commenda, viz. That another Benefice may be commended and committed to his Cuſtody and Cure, until it be provided with an able Incumbent. But afterwards, there being great Abuſes found in the granting of theſe Commendams by the Ordinaries (for omnium rerum quarum eſt uſus, poteſt eſſe abuſus, virtute ſolum excepta, ſays Ariſtotle) another Canon was made in the Council of Lions, An. Dom. 1274. for reformation thereof, as appears lib. 6. Decretal. de Elect. & Elect. poteſta. c. Nemo. Nemo deinceps Parochialem Eccleſiam alicui non Conſtituto in legitima aetate vel Sacerdotio Commendare praeſumat; nec tali, niſi unam, & evidenti Neceſſitate vel Ʋtilitate Eccleſiae ſuadente. Hujuſmodi autem Commendam rite factam declaramus ultra Semeſtre temporis ſpatium non durare, &c. But the Gloſs there ſaith, That Iſta Conſtitutio non comprehendit Romanum Pontificem, ideo Romanus Pontifex poteſt Perpetuo Commendare. So that the Pope, notwithſtanding that Canon, had power to give Benefices in perpetuam Commendam. And indeed after the ſaid Council of Lions, as the Pope had reſerved to himſelf the ſole power of giving Benefices in perpetuam Commendam, ſo he reduced that power into act, and uſed and practiſed the ſame in all Realms of Chriſtendom: Specially the Popes that were reſident at Avignon in France in the times of King H. 2. Ed. 1. Ed. 2. Ed. 3. were very liberal not only in granting theſe Proviſions (contrary to our Statutes made in the times of King Ed. 1. & Ed. 3.) but in giving all ſorts of Eccleſiaſtical Benefices in Commendam perpetuam. And as at firſt it was done for the ſupport of the Dignity of Cardinals, as Pope Clement. 6. profeſſed in his Epiſtle to Ed. 3. Hiſt. Walſingham, fo. 150. b. yet afterwards theſe Favours were purchaſed by other Eccleſiaſtical perſons of all degrees, in all Nations, ſpecially in England and Ireland. And whereas the Canon Law ſays, That a man hath a Cononical Title by virtue of a Commendam, that muſt be underſtood de Commenda perpetua, and not de Commenda Temporali; for the Commenda Temporalis is but a kind of Sequeſtration, and may be granted by every Ordinary pro tempore Semeſtri; and therefore ſuch a Commendatary non eſt Praelatus, nec Maritus Eccleſiae, nec facit Fructus ſuos, ſed eſt Adminiſtrator tantum, & Cuſtos Eccleſiae. And ſuch a Commenda non eſt titulus, nec facit titulum, ſed eſt quoddam depoſitum, until the Church be provided with a ſufficient Incumbent; and therefore ſuch a Commenda is commonly granted when the Patron doth not Preſent an able perſon, or when the Church is Litigious. But the Commenda perpetua, which continues during the life of the Commendatary, cannot be granted by any inferiour Ordinary, but only by the Pope in ſuch Countries where he hath Juriſdiction, or by the King or his Delegates in this Realm, or ſuch whoſe power therein is derived from him or confirmed by him. And this Commenda eſt titulus Canonicus; nam militat eadem ratio in perpetuis Commendis, quae in aliis Titulis. Lib. 6. de Electionib. c. Nemo. And ſo it hath been often adjudged in Rota, as Gomez affirms in Regul. de Trien. Poſſeſſ. where he argues this point Pro & Con at large, and where he ſaith, That the Faculty of a perpetual Commendam is ampliſſima diſpoſitio, & habet ubertatem verborum, viz. Licentiam & Facultatem fructus omnes percipiendi, & in proprios uſus Convertendi, &c. Quae verba important Collationem & Titulum, & non Simplex Depoſitum.