Abridgment of Ecclesiastical Laws, Treatise · Chapter 22
CHAP. XXII.
Of Lapſe.
1. What a Lapſe is; the gradations, and Original thereof.
2. The difference between the Canon and Common Law, as to the time of Lapſe; and when the Six months ſhall begin.
3. The King is Patron Paramount of all tbe Churches in England.
4. In what Caſes the Patron is to take notice of the Avoidance at his peril, or not; and how the Six months is to be computed by the days.
5. A Lapſe is not an Intereſt, but a Truſt or Adminiſtration, and may not be transferr'd or granted over.
6. How or from what time the Six months ſhall be computed before the Lapſe incurr.
7. Whether a Biſhop may Collate by Lapſe after Six months, upon failure of the Clerks ſhewing his Letters of Orders, or his Letters Miſſive or Teſtimonial?
8. In what caſe Tempus occurrit Regi in point of Lapſe.
9. In what caſes the King having Title of Lapſe may loſe his Preſentment.
(1.) LApſus, or Lapſe, is a ſlip or departure of a Right of Preſenting to a void Benefice, from the Original Patron neglecting to Preſent (within Six months next after the Avoidance) to the Ordinary. Whence it is commonly ſaid, That that Benefice is in Lapſe or Lapſed, whereunto he that ought to Preſent, hath omitted or ſlipped his opportunityaAn. 13 Eliz. c. 12.. This Lapſe may happen and be, the Patron being ignorant of the Avoidance, as well as if he were acquainted therewith or privy thereto, except only upon the Reſignation of the former Incumbent, or the Deprivation upon any cauſe comprehended in the Statute of 13 Eliz. cap. 12. In which caſes the Biſhop ought to give notice thereof unto the Patron. In this matter of Lapſe there are Three gradations, ab Inferiore ad Superiorem, after the neglect of the true Original Patron, upon whoſe default (1) the Biſhop of the Dioceſs, within whoſe precincts the vacant Benefice lies, ſhall Collate, unleſs the King be Patron. (2) If the Biſhop Preſents not within the next Six months, then the Metropolitan ſhall Preſent: And (3 ly) if he Preſent not within the time by Law limited,Dr. & Stud. 125. Co. par. 4. 17. & par. 5. 58. Specot's Caſe. Action. then the King ſhall Preſent, for that he is Patron paramount of all the Benefices within his Realms; as alſo becauſe the King and his Progenitors, Kings of England, have had Authority time out of mind to determine the Right of Patronages in this Realm in their own Courts, whence lies no Appeal to any. Foreign pretended Power. The Roſell Summiſt indeed makes more Gradations in this matter, as from the Patron to the Chapter, from the Chapter to the Biſhop, from the Biſhop to the Metropolitan, from the Metropolitan to the Patriarch, and if none ſuch, then to the Pope. Sed hoc nihil ad nos, part of whoſe happineſs is an Index Expurgatorius of the laſt recited Premiſſes. And although the Law is, That the Ordinary ſhall Preſent, in caſe the Patron doth not within Six months; yet the Law withal is, That if the Patron Preſent before the Ordinary put in his Clerk, the Patron of right ſhall enjoy his PreſentationbDr. & Stu. cap. 36.. And if the Ordinary ſurceſs his time limited, he loſes his power as to that Preſentation, ſpecially if it be devolv'd to the King: And when the Preſentation is in the Metropolitan, he ſhall put in the Clerk himſelf, and not the Ordinary; and ſo there is no default in the Ordinary, though he Preſent not the Clerk of the Patron, if his time be paſt, in which caſe there is no remedy for the Patron againſt the OrdinarycDr. & Stu. ibid.. This matter of Lapſe is of very ancient practice, for Mich. 3. E. 1. B. Rot. 105. Staff. the Biſhop of Coventry and Lichfield pleaded a Collation by Lapſe Authoritate Concilii againſt the Prior of Landa to the Church of Patingham. And 6 E. 1. Rot. Paten. membra 25. in a Quare non admiſit by the Abbot of St. Mary Eborum againſt the Biſhop of Norwich, the Biſhop made a Title by Lapſe, viz. That he Collated Authoritate Concilii poſt Lapſum ſemeſtre, &c. And there afterwards in the Judgment it is ſaid, Quia tempus ſemeſtre Authoritate Concilii non incipit verſus Patronum niſi à tempore. ſcientiae, mortis, &c. (Q. what Council is here meant or intended) For P. 9 E. 1. B. Rot. 51. it appears that Lapſe was given per Concilium Lugdunenſe poſt tempus ſemeſtre: The like alſo in a Writ in the time of E. 2. cited by Sir Ed. Co. 6. in Catesby's Caſe, 62dRoll. Abr. verb. Preſent. lit. O. p. 354.; yet in Bracton the Lapſus temporis is de Conſtitutione Lateranenſi eBract. lib. 4. fo. 241.. And yet Britton, fo. 225. ſpeaks of the Tempus Semeſtre or the Six months according to the Council of Lions; But Mr. Selden in his Book of Tithes, 390. ſays, That the Manuſcripts of Breton have Lateran for Lions; and in fol. 388. holds, That this Lapſe was received in the Laws of this Realm out of the General Council of Lateran, held in the year 25 H. 2. as the Learned Serjeant Roll obſerves in his Abridgment on this word of Lapſe, where he alſo cites Hovenden, fo. 326. aſſerting, That among the Canons of the Council of Lateran under Alex. 3. held under Alex. 3. An. 1118. in the time of King Hen. 2. there is a Canon in theſe words or to this effect, viz: Cum vero Praebendas Eccleſias ſeu quaelibet Officia in aliqua Eccleſia vacare contigerit, vel ſi etiam mod… vacant, non diu maneant in ſuſpenſo, ſed infra Sex menſes perſonis, quae digne adminiſtrare valeant, conferantur; ſi autem Epiſcopus, ubi ad eum ſpectaverit, conferre diſtulit, per Capitulum Ordinetur. And before the ſaid Council the Patron was not limited to any time, but might Preſent at his pleaſure without any Lapſe fSeld. de D…cimis, 387. & Bract. lib. 4. 241.. Touching other Preſidents of great Antiquity relating to this Subject of Lapſe, the Reader is here referred to that Learned Serjeant Rolle, in the forecited place of his Abridgment. And although according to the Gradations aforeſaid the Lapſe devolves from the Patron to the Biſhop, from the Biſhop to the Archbiſhop, from the Archbiſhop to the King; yet if after Lapſe incurr to the Metropolitan, and before Collation by him made the Patron Preſent, he may Preſent to the Ordinary of the Dioceſs, without Preſenting to the Metropolitan. Contra H. 41 El. B. R. per Popbam gRoll. Abr. ver. Preſentm. lit. N.; for thereby he ſeems to redeem his neglect. But yet if Lapſe devolve to the King, and then the Inferiour Ordinary Collate by the Lapſe, and his Clerk be Inſtituted and Inducted, it ſeems this doth not make a Plenarty againſt the King to put him to his Quare Impedit, but he may notwithſtanding Preſent and ouſt the Clerk of the Ordinary; for when Lapſe incurrs to the King, it cannot be taken away by the Ordinary: And then when the Ordinary Collates without good Title, it makes not any Plenarty againſt him who hath the right as the King hath to Preſent; for a Lapſe incurring to the King is not like that which incurrs to the Metropolitan hRol. ibid. lit. Q. nu. 21.. But if a Patron Preſent, and his Clerk be Inſtituted, and remain Eighteen months without Induction, in that caſe there doth not any Lapſe incurr to the King; for the King hath not any Lapſe, but where the Ordinary might have had it beforeiHob. Rep. 20….. But if a Biſhop dies, whereby the Temporalties are in the Kings hands, if during that time the Six months paſs, whereby a Lapſe happens, the King ſhall have it, and not the Guardian of the Spiritualties kBract. l. 5. fo. 404. §. 10.. Nor doth an Admittance of a Reſignation by Fraud, take away the Kings Title; for in Comber's Caſe againſt the Biſhop of Ciceſter, where the Iſſue in a Quare Impedit was, If S. R. by covin between him and C, and R. did Reſign into the hands of the ſaid Biſhop, if the King hath Title of Lapſe, and a Reſignation be made by fraud, and one Admitted, this ſhall not take away the Kings Title, for if the Kings Title appear upon Record, then ſhall go out a Writ for the King; but otherwiſe it is upon matter of Evidence, the King doth loſe his Preſentation as well by reſignation as by death, where he hath Title to Preſent by Lapſe, and doth not, except the Reſignation be by FraudlTrin. 6 Jac. Rot. 1629. Comber verſ. Epiſc. Ciceſt, Brownl. Rep. par. 1. Actions on Q. Imp.. And in the Caſe of the Queen and the Archbiſhop of York and Bucks, it was Reſolved by the Juſtices, That a Collation, although double or treble, cannot be an Uſurpation againſt the King to put him out of an AdvowſonmTrin. 33 El. B. R. Cro. par. 1..
(2.) The Canon Law allows Two months more to an Eccleſiaſtical, than to a Lay-Patron, ere the Lapſe ſhall be incurr'd; the former having by that Law Six months to Preſent, the latter but Four. Summ. Angel. tit. Jus Patronat. §. 16. So the Law of Scotland: Parſ. Counſ. par. 1. c. 2. We need not enquire into the Reaſon of that difference or diſproportion; let it ſuffice the Laity, That it was the Canoniſts pleaſure to have it ſo, for reaſons beſt known to their own intereſt; the Common Law impartially levels them both to one and the ſame equal ſtandard of Six months. By the Common Law of England, as well Clerks as Laicks have Six months to Preſent before the Lapſe incurr: Dr. & Stu. 116. b. Per la Com. Ley De Scoce Laici Patroni quadrimeſtre, Eccleſiaſtici vero Sex menſium ſpatium habent ſibi conceſſum ad Praeſentandum perſonam idoneam Eccleſiae vacanti. Skene. Regiam Majeſtatem, 10. b. But Jac. 6. pl. 1. cap. 7. Pl. 7. cap. 102. pl. 12. cap. 119, 158. Concedit Patrono Laico ſpatium Sex menſium, infra quod Praeſentare debet. The Queſtion is not ſo much, when the Term ſhall end and determine, as when it ſhall commence, and from what time the Six months ſhall be computed. The Anſwer falls under a double conſideration, or is diverſified according to the divers manners of Avoidances; for if by Death, Creation, or Ceſſion the Church be void, then the Six months ſhall be computed from the Death, Creation, or Ceſſion of the laſt Incumbent, whereof the Patron is to take Notice at his peril: But if the Avoidance be by Reſignation or Deprivation, then the Six months ſhall begin from the time of Notice thereof given by the Biſhop to the Patron, who is not obliged to take knowledge thereof from any other, than by ſignification from the BiſhopnDr. & S… cap. 31.. But in caſe the Avoidance were cauſed by an Union (for ſo it might be) then the Six months ſhould be computed from the time of the Agreement upon that Union; for in that caſe the Patron was not ignorant of, but privy to the Avoidance; for there could be no Union made, but the Patron muſt have the knowledge thereof; and then it was to be appointed who ſhould Preſent after the Union, as whether one or both, either joyntly or by turns one after another, as the Agreement was upon the UnionoDr. & 3. ibid..
(3.) The Continuance of a Voidance of a Church by the ſeveral Lapſes of Patron, Biſhop, and Archbiſhops, derives the Title of Preſentation at laſt to the King as Patron paramount of all the Churches in England; and wherever the Original Patron by Law ought to take notice of a Voidance at his peril, there and in ſuch caſe by a Non-Preſentation within Six months from the time of ſuch Voidance the Lapſe will ever incurr: And generally by the Admiſſion, Inſtitution, and Induction to a Second Benefice, Prima Eccleſia vacat de perſona of the Incumbent, & vacans continuat till new InductionpMich. 9 Car. C. B. rot. 441. The King and the Biſh. of Canterbury and Pryſt's Caſe. Cro. 1. par. 258.. But when an Archbiſhop, Biſhop, or other Ordinary hath given a Benefice of right devolute unto him by Lapſe of time, and after the King Preſenteth, and taketh his Suit againſt the Patron, who poſſibly will ſuffer that the King ſhall recover without Action tried, in deceipt of the Ordinary or the poſſeſſor of the ſaid Benefice; In ſuch and all other like caſes, where the Kings Right is not tried, the Archbiſhop, Biſhop, Ordinary, or Poſſeſſor, ſhall be received to counterplead the Title taken for the King, and to have his Anſwer, and to ſhew and defend his Right upon the matter, although that he claim nothing in the Patronage qAn. 25 Ed. 3. cap. 7.: ſo that the Ordinary may Counterplead the Kings Title for a Benefice fallen to him by Lapſe. Alſo when the King doth make Collation or Preſentment to a Benefice in anothers Right, the Title whereupon he groundeth himſelf, may be well examined, that it be true; which if before Judgment it be by good information found to be otherwiſe, the Collation or Preſentment thereof made may be Repealed, whereupon the true Patron or Poſſeſſor may have as many Writs out of Chancery as ſhall be needful. There are ſome rSt. 25 Ed. 3. c. 3. St. 13 R. 2. 1. St. 4 H. 5. 21.Statutes (the King not being bound by Lapſe of Time, for nullum Tempus occurrit Regi) which are good remedies and reliefs for the Ordinary that hath Collated by Lapſe, as alſo for the Clerk that is Collated; for otherwiſe a Common perſon might by Practice have turned out a lawful Collatee: to which purpoſe the Lord Hobart doth inſtance in a Caſe; A Common perſon no true Patron Preſents within Six months, and the true Patron himſelf Preſents not in time, whereupon the Ordinary Collates by the Lapſe, againſt whom the Pretender brings a Quare Impedit, becauſe his Clerk was refuſed, wherein he muſt needs prevail, if his Title be good: and it muſt be taken for good, becauſe neither Ordinary nor Incumbent could deny it; for de non apparentibus, & de non exiſtentibus eadem eſt ratio; which Inconvenience is remedied by the ſaid Stat. of 25 E. 3. c. 7. Note, that Lapſe doth not incurr to the Ordinary by reaſon of his not examining the Clerk within Six months. Trin. 3 Jac. B. R. inter Palmer & Smith. Reſolved per Cur.
(4.) If a Plea be depending between Two parties, and it be not diſcuſſed and determined within Six months, the Biſhop may Preſent by Lapſe, and he that hath the Right to Preſent, ſhall according to the Statute recover his DammagessWeſtm. 2. cap. 5. Term. Law, verb. Quare Imp.. But it is expreſly provided by the Statute of 13 Eliz. 12. That no Title to Collate or Preſent by a Lapſe ſhall accrue upon any Deprivation ipſo facto, but after Six months after Notice of ſuch Deprivation given by the Ordinary to the PatrontDyer, fo. 346, 369, 377. Co. li. 6. fo. 29.. But if the Church become void by Death, Creation, or Ceſſion of the laſt Incumbent, the Patron is at his peril to take Notice of ſuch Avoidances within the next Six months thereofu22 H. 6. 29. b.. But if it become void by Deprivation or Reſignation, the Clerk is not obliged to tender his Preſentation to the Biſhop, nor the Patron obliged to Preſent his Clerk, but within Six months next after Notice legally given him by the Ordinary of the Avoidance by ſuch Deprivation or ReſignationxDr. & St. l. 2. c. 31. Roll. 2. 364, &c.; which Six months are to be calculated or computed by 182 days, and not by 28 days to the MonthyYelv. 100. & Co. 6. 61. b. 62. a.. Nor is there any Addition of time over and above the Six months allowed the Patron to Preſent from the Vacancy a Second Clerk, in caſe the former were legally refuſed by the BiſhopzKelw. 50. b. & 14 H. 7. 21. a. Dyer 227. p. 7.. Yet the Ordinary may not take advantage of the Lapſe, in caſe the Patron Preſent his Clerk, before the other hath Collateda13 E. 4. 3. b. & 11 H. 4. 80. a. & Hutton 24.; though it be otherwiſe with the Canoniſts: Lindw. c. Si aliquo evincente, &c. verb. Injuria. But if the Biſhop Collate, and the Patron Preſent before Induction, in that caſe it ſeems he comes too latebDyer 270, p. 56.. And at the Common Law Sir Simon Degge in his Parſons Counſellor makes it a doubtful Queſtion, if the Church Lapſe to the King, and the Patron Preſents before the King take advantage of the Lapſe, whether this ſhall avoid the Kings Title by Lapſe? This (ſays he) is a Queſtion by Dyer cDy. 277. p. 55., though Hobart ſeems to be clear in it, that the King ſhall not have the benefit of the LapſedHob. 15…. Hut 24.; but adds that divers Authorities are againſt themeCro. Eliz. 119. Cro. Jac. 216. a. Owen 3, & 5, Roll. 2. 368. b. 27 E. 3. 84. b. Co. 7. 28. Dr. & Stud. lib. 2. cap 31. Parſ. Counſel. par. 1. cap. 2.. And in the Caſes aforeſaid, wherein Notice of Avoidance ought to be given to the Patron before the Lapſe can incurr, the Patron is not obliged to take Notice thereof from any perſon other than the Biſhop himſelf, or other OrdinaryfDr. & Stu. ubi ſupr.; which alſo muſt be given to the Patron perſonally, if he live in the ſame County; and if in another County, then Publication thereof in the Pariſh-Church, and affixed on the Church-Door, will ſerve turn, if ſuch Notice doth expreſs in certain (as it ought to do) the cauſe of the Deprivation, &c.gCo. 6 19. b. & Cro. El. 119. Dyer 328. a.: As upon Deprivation of an Incumbent for not Reading the 39 Articles of Religion, the Ordinary is to give the Patron Notice thereof, which Notice ought to be certain and particularh18 Eliz. Dyer 346. Trin. 41 El. B. R. Baker and Brent's Caſe. Cro. par. 3. acc. 679.. Before Lapſe can incurr againſt a Patron, Notice of his Clerks being refuſed by the Ordinary for Inſufficiency, muſt be given to the perſon of the Patron, if he may be found, and it is not in that Caſe ſufficient to fix an Intimation thereof on the Door of that Church to which he was Preſented. D. 16 El. 327. 7. b. Adjudged.
(5.) It is ſaid, That a Lapſe is not an Intereſt naturally, as is the Patronage, but a meer Truſt in Law. And if the Six months be incurred, yet the Patrons Clerk ſhall be received, if he be Preſented before the Church be Filled by the Lapſe i13 E. 4. 3. B…ook Plenarty, 15 43 E. 3. 11. 11 H. 4. 80.. Obſerve 7 Eliz. Dyer 241. for it ſeems by that caſe, that the Patron ſhould Preſent againſt the Kings Lapſe, for he hath dammage but for half a year. And Hob. Chief Juſtice ſays, That a Lapſe is an act and office of Truſt repoſed by Law, in the Ordinary, Metropolitan, and laſtly in the King; the end of which Truſt is to provide the Church of a Rector, in default of the Patron; and yet as for him, and to his behoof. And therefore as he cannot transfer his Truſt to another, ſo cannot he divert the thing wherewith he is entruſted to any other purpoſe. Nor can a Lapſe be granted over, as a Grant of the next Lapſe of ſuch a Church, neither before it fall, nor after. If the Lapſe incurr, and then the Ordinary die, the King ſhall Preſent, and not the Executors of the Ordinary: For it is rather an Adminiſtration than an Intereſt; and the King cannot have a Lapſe, but where the Ordinary might have had it beforekMich. 10 Jac. rot. 2642. C…lt and Glover verſ. the Biſhop of Coventry and Lichfield. Hob. Rep. If an Infant-Patron Preſent not within Six months, the Lapſe incurrs. The Law is the ſame as againſt a Feme-Covert, that hath right to Preſent. 33 E. 3. Qua. Impedit, 46.
(6.) In the firſt Paragraph of this Chapter it is ſaid, That Tempus Semeſtre authoritate Concilii non incipit verſus Patronos niſi à tempore Scientiae mortis perſonae, that is, of the laſt Incumbent p6 E. 1. Rot. Pat. membr. 25.And ſo Adjuged upon a Writ in the time of E. 2.qCo. 6. Cates by 62., and ſaid to be per Legem & Conſuetudinem Regni hactenus uſitatas. As if the Incumbent die beyond Sea, the Six months are not computed from the time of his death, but from the time of the Patrons knowledge thereof; and ſo it was Adjudged in a Quare non admiſit between the Abbot of St. Mary Eborum and the Biſhop of Norwich, as aforeſaidrdict. 6 E. i. For the Six months are not reckoned from the death of the Laſt Incumbent, but from the time the Patron might (according to a reaſonable Computation, having regard to the diſtance of the place where he was at the time of the Incumbents death, if he were within the Realm at that time) have come to the knowledge thereof; for he ought afterwards to take notice thereof at his peril, and not before, for that he was in ſome other County than that wherein the Church is, and wherein the Incumbent died s5 E. 1. 75. Adjudg. Q. Eleano…s caſe. Contra Co. 6. C…sby, 62. b.. And if the Ordinary refuſe a Clerk for that he is Criminous, in that caſe the Patron ſhall not have Six months to Preſent after Notice thereof given him, but of the Avoidancet14 H. 7. …. Curia. 18 H. 7. Kell. 50. b. Quaer….. The Law is the ſame in caſe of Refuſal by reaſon of Illiterature uD. 15, 16. El. 227. 7. per Curiam.: But if the Church be void by Reſignation or Deprivation, the Six months ſhall be computed from the time of Notice thereof given to the Patron, and not from the time of the Avoidancex1 H. 7. 9. b. D. 15, 16 El. 327. 7. Dr. & Stu. 16. 5 E. 4. 3. b.: Yet if the Ordinary refuſe a Clerk becauſe he is Criminous, he is to give notice thereof to the Patron, otherwiſe the Lapſe doth not incurry38 E. 3. 2.. So likewiſe, if he be refuſed for Common Uſury, Simony, Adultery, or other Notorious Crime, Notice thereof ought to be given to the Patron, otherwiſe the Lapſe doth not incurrz18 H. 7. Kell. 50. b. Contr. per Frowick.. A Lay Patron ought to have Notice ere the Lapſe ſhall incurr, in caſe his Clerk be refuſed for Illiterature, otherwiſe as to a Spiritual Patron, becauſe the Law preſumes, he might well know of his inſufficiency before he preſented hima18 H. 7. Kell. 49. b.. And if the Biſhop who took a Reſignation dies, the Lapſe doth not incurr to his Succeſſor without Notice to the PatronbIbid..
(7.) In a Quare Impedit the Defendant pleaded, That he demanded of J. S. the Preſentee of the Plaintiff to ſee his Letters of Orders, and he would not ſhew them, and alſo demanded of him his Letters Miſſive or Teſtimonial, teſtifying his ability; and becauſe he had not his Letters of Orders, nor Letters Miſſive, nor made any proof of them to the Biſhop, he deſired leave of the Biſhop to bring them, who gave him a week; and he went away and came not again, and the Six months paſſed, and the Biſhop Collated by Lapſe: It was Adjudged in this Caſe, That theſe were no Cauſes to ſtay the Admittance of the Clerk, for the Clerk is not bound (underſtand it only at Common Law) to ſhew his Letters of Orders and Letters Miſſive to the Biſhop, but the Biſhop muſt try him upon ExaminationcTrin. 33 Eliz. B. R. Palmer and the Biſhop of Peterburghs Caſe. Cro. par. 1..
(8.) A Parſon of the Church of S. of the value of Ten pound, took a Second Benefice without a Diſpenſation, and was Inſtituted and Inducted, and continued ſo for twelve years: The Patron preſented J. S. who was Inſtituted and Inducted, and ſo continued divers years, and died. The Queen preſented the Defendant C. ratione Lapſus in the time of A. who was Inſtituted and Deducted. B. the Patron brought a Quare Impedit againſt the Ordinary and C. Mich. 27 & 28 Eliz. C. B. B…verly and Cornwall's Caſe.It was held by the Juſtices, That the Writ did well lie; and that Tempus occurrit Reginae in this Caſe, and that laſt Clerk ſhould be removed. And it was held by the Juſtices, That upon a Recovery in a Quare Impedit, any Incumbent that comes in pendente Lite ſhould be removed.
(9.) In the Caſe between Cumber and the Biſhop of Chicheſter, it was Reſolved (1) If Title of Lapſe accrues to the King, and the Patron Preſents, yet the King may Preſent at any time as long as the Preſentee is Parſon; but if he dies, or Reſigns before the King Preſents, he hath loſt his Preſentment. (2.) If the King hath Title by Lapſe, becauſe a Parſon hath taken a Second Benefice, if the Parſon dies, or Reſigns his Firſt Benefice, and the Patron Preſents, whoſe Preſentee Reſigns upon Covin and dies, the King hath loſt that PreſentmenteHill. 6 Jac. B. R. Cro. par. 2..