Abridgment of Ecclesiastical Laws, Treatise · Chapter 26
CHAP. XXVI.
Of Pluralities.
1. Pluralities condemned by the Council of Lateran; yet diſpenc'd with by Kings and Popes.
2. What in this matter the Pope anciently exerciſed by way of Ʋ ſurpation, the King may now do de jure; The difference between them in the manner how.
3. What perſons are qualified for granting or receiving Pluralities.
4. Several Laws relating to Pluralities, Diſpenſations, and Qualifications.
5. How the 8 l. annual value of a Benefice ſhall be underſtood, whether as in the Kings Books, or according to the true value of the Benefice.
6. The Lord Hobart's Opinion touching the Statute of 21 H. 8. relating to Pluralities.
7. What the Pope's Power in England was before the making of the ſaid Statute; And whether the taking of a Biſhoprick in Ireland by a Dean in England, makes the Deanary void by Ceſſion?
8. The Chaplains of Perſons of Honour, having divers Benefices, ſhall retain them for their Lives, though they be diſcharged of their Service.
9. Whether the Eccleſiaſtical Court may take cognizance of Plenarty or Voidance, after Induction; And whether the cognizance of Ceſſion or no Ceſſion, belongs to the Temporal or Spiritual Count.
10. Difference between Voidance by Act of Parliament, and Voidance by the Eccleſiaſtical Law.
11. A Prohibition granted upon Sequeſtration of a Benefice by the Biſhop.
12. The Fifth Paragraph aforeſaid Adjudged and determined.
13. How the Voidance in caſe of Three Benefices in one perſon.
14. Benefice not void, if the King Licenſe the Incumbent to be an Incumbent and a Biſhop.
15. How the taking of a Second Benefice is a Voidance of the Firſt.
16. Whether ſo, in caſe of a Chaplain of the King.
17. Whether ſo, in caſe of a Si modo or Modo ſit, by way of a Limitation in the Diſpenſation.
18. Whether the word Diſpenſamus be neceſſary in the Letters of Diſpenſation for a Plurality?
19. The Kings Retainer of a Chaplain by Word only qualifies him for a Plurality within the Statute of 21 H. 8.
20. Whether a Third Chaplain retained by a Counteſs Widow, is qualified to purchaſe a Diſpenſation for Plurality.
21. In reference to Plurality, whether regard is to be had to the value mentioned in the Statute of 25 H. 8. or to the true value of the Benefice.
22. Whether Admiſſion and Iuſtitution makes the Firſt Benefice void without Induction.
23. Whether before the Statute of 25 H. 8. the Pope might here grant Diſpenſations for Pluralities.
24. Whether the Retainer of a Chaplain may be good and ſufficient without a Patent.
25. In what caſe a Diſpenſation for Plurality may come too late, though before Induction.
26. Three Reſolutions of Law in reference to Avoidance by reaſon of Plurality.
(1.) PLurality, according to the Common acceptation of the word, is where one and the ſame perſon is poſſeſſed of Two or more Eccleſiaſtical Benefices with Cure of Souls, ſimul & ſemel. It was long ſince condemned by the general Council of Lateran aAn. 1215., whereby it was Ordained, That whatever Eccleſiaſtical perſon, having one Benefice with Cure of Souls, doth take another ſuch, ſhall ipſo jure be deprived of the former; and if he conteſt for the retaining thereof, ſhall loſe bothbConcil. Later. To. 4. 221. cap. 29. 24 E. 3. 33. 39 E. 3. 44. F. N. B. 34. L. Co. 4. par. 75.. Notwithſtanding which Canon, it was heretofore uſual with the Pope to uſurp a power of Diſpenſation in this matter, the which de jure was anciently practiſed by Kings, as Supream, and as the original Donors of Benefices and Eccleſiaſtical Dignities; witneſs Edmond that Monk of Bury, who by virtue of ſuch Diſpenſations held ſeveral Eccleſiaſtical Benefices at one and the ſame time. The ſaid Canon (as to the ſubſtance thereof, relating to Pluralities) is now Confirmed by the Statute of 21 H. 8. 13. which limits the former Benefice with Cure of Souls to the yearly value of Eight pounds or upwards, and the time of Avoidance thereof to be immediately after poſſeſſion, by Induction into the other with Cure of Souls; with power of Preſentation de novo granted to the Patron of the former Benefice, and all benefit of the ſame to the Preſentee, as if the Incumbent had died or reſigned. Q. Whether the ſaid yearly value of Eight pounds or above, ought to be computed according to the valuation in the Kings Books, as returned into the Exchequer, and now uſed in the Firſt-Fruits Office, or according to the juſt and true value of the BeneficecDyer 237. p. 29. Cro. Eliz. 853.. Q. likewiſe, Whether a Parſon of a Church Impropriate, with a Vicar perpetually endowed, accepting of a Preſentation unto the Vicarage without Diſpenſation, be a Pluraliſt within the Canon and Statute aforeſaid? The Negative is ſuppoſed to give the beſt Solution to the QueſtiondVid. Parſs Law, cap. 21.
(2.) The ſame power of granting Faculties, Pluralities, Commendams, &c. which anciently the Pope exerciſed in this Realm by Uſurpation, is by the Statute of 21 H. 8. cap. 13. and 1 Eliz. transferr'd unto and veſted in the Crown de jure; alſo from and under the King, in the Archbiſhop of Canterbury and his Commiſſaries by Authority derived from the Crown: The Pope anciently granted to Biſhops after Conſecration, Diſpenſations Recipere & obtinere Beneficium cum cura animarum, to hold the ſame in Commendam, the which he did in this Realm by Uſurpation, and which the Crown may now do de jure; for the ſame power (as aforeſaid) which the Pope had, is by the Acts of Parliament in 25 H. 8. & 1 Eliz. in the King de jure. But there is a very material difference between the Diſpenſations anciently here granted by the Pope, and thoſe at this day by the King and Archbiſhop, Confirmed by the Kings Letters Patents, which are not good otherwiſe than to ſuch as are Compleat Incumbents at the time of granting thereof,Ibid▪ whereas it was ſometimes otherwiſe with the other; whence it is obſervable, that in Digbie's Caſe the Diſpenſation came too ſoon: A. is Inſtituted and Inducted into a Benefice with Cure, value Eight pounds per ann. Afterwards the King preſenting him to another with Cure, he is Admitted and Inſtituted: Afterwards the Archbiſhop of Canterbury grants him Letters of Diſpenſation to hold Two Benefices; the King confirms the ſame: Afterwards he is Inducted into the Second Benefice. In this caſe the Diſpenſation comes too late, becauſe by the Inſtitution into the Second Benefice the Firſt Benefice was void by the Stat. of 21 H. 8.eCo. 4. par. 79. Digbie's Caſe..
(3.) The Acceptance of a Second Benefice, with a Diſpenſation, comes not under the notion of prohibited Pluralities, in caſe the Firſt were vnderunder the annual value of Eight pounds, or ſine cura. And what perſons are qualified either for the Granting or receiving Pluralities, appears by the Stat. of 21 H. 8. c. 13. In which there is not any limitation of Number of Chaplains to be retained by the King, Queen, and Prince, and other the King's Children; for which reaſon they may retain as many Chaplains as they pleaſe, and each of them qualificable by a Diſpenſation for Plurality: But if either of the King's Chaplains be Sworn of his Majeſties moſt Honourable Privy Council, ſuch may purchaſe a Diſpenſation to hold Three Benefices with Cure of Souls. The Perſons ſpecially qualified by Diſpenſations for Pluralities, are either (1) Such as are retained as Chaplains to Perſons of Honour: Or (2) Such as are qualified thereto in reſpect of their Birth: Or (3) Such as are dignified with ſome certain Degrees in either of the Univerſities of this Kingdom. In reference to the firſt of theſe, every Archbiſhop and Duke may have Six Chaplains; Marqueſs and Earl, Five; every Viſcount and other Biſhop, Four; Lord Chancellor, Three; Knight of the Garter, Three; Baron, Three; Dutcheſs, Marchioneſs, Counteſs, and Baroneſs (being Widows,) Two; Treaſurer and Controller of the Kings Houſe, Two; the Kings Secretary and Dean of his Chappel, the Kings Almner and Maſter of the Rolls, Two; the Chief Juſtice of the Kings Bench, and Warden of the Cinque Ports, One. In reference to the Second qualification, viz. By Birth, the Brothers and Sons of all Temporal Lords, and of Knights, born in Wedlock, may purchaſe Diſpenſations to hold Two Parſonages, &c. with Cure of Souls. In reference to the Third, all Doctors and Batchelors of Divinity, Doctors and Batchelors of Law, Preſented to any of theſe Degrees, not by grace only, but by any of the Univerſities of this Realm, may purchaſe and hold as aforeſaid. Vid. Statute 21 H. 8. cap. In the Parſons Counſellor, par. 1. chap. 4. Chaplains. Archbiſhop 8 Duke 6 Marqueſs 5 Earl 5 Biſhop 6 Viſcount 4 Lord Chancellor 3 Knight. of the Garter 3 Baron 3 Dutcheſs, Marchioneſs, Counteſs, Baroneſs, Widows, each 2 Treaſurer, Controller, of the Kings Houſe, each 2 Kings Secretary 2 Stat. 21 H. 8. cap. 13. Kings Almner, Clerk of the Cloſer, Maſter of the Rolls, each 2 Chief Juſtice B. R.—1 Warden of the Cinque Ports—113.
(4.) Although by the Letter of which Act the Firſt Living is not void until Induction into the Second, the words being [If the party be Inſtituted and Inducted in poſſeſſion of the Second Living, that then the firſt ſhall be void:] yet to avoid the great inconveniency (as Sir Simon Degge obſerves in his Parſons Counſellor) that otherwiſe would enſue,Par. 1. chap. 4. Co. 4. 79. b. Hob. 166. it has been held, That the Firſt Living is void upon the bare Inſtitution into the Second; and ſo it ſhould ſeem the Law was before the making of this Act, where the party had no Diſpenſation. The ſufficiency of qualification for Plurality relates as well to the Diſpenſation as to the Perſon; for if the Diſpenſation, after its being had from the Maſter of the Faculties, be not confirmed under the Great Seal of England, other qualifications will not ſuffice. Nor are the ſupernumerary Chaplains of any perſon of Honour, retained by him above the Number allowed by the Statute, qualified for Plurality. Co. 4. 90. B. verſus the Biſhop of Glouceſter, and Saveacre. Anderſ. More, 561. The death, attainder, degradation, or diſplacing of a Chaplains Lord, or his diſcharging his Chaplain, unqualifies him for a Plurality of incompatible Livings iCo. 4. 17. b.; otherwiſe of the Chaplain of a Dutcheſs, Marchioneſs, Counteſs, or Baroneſs, in caſe of After-marriagekId. 4. 118.. A double Capacity in one and the ſame perſon of Honour to qualifie his Chaplains, doth but capacitate him to qualifie his Number of Chaplains only according to his beſt qualificationlIbid.. A Perſon of Honour having retained his full Number of Chaplains, and diſcharging them after their preferment, may not during their Lives qualifie othersmCo. 4. 90. a..
(5.) The Queſtion was formerly put, Whether the 8 l. yearly value, intentioned in the Statute of 21 H. 8. c. 13. ſhall be underſtood according to the Taxed value in the Kings Books, or according to the very true value of the Benefice? Mr. Hughes in his Parſons Law reports a Caſe in King James's time, wherein this Queſtion was debated pro & con, the Judges equally divided, the Caſe for difficulty and variance of Opinion adjourned, and afterwards (as he there ſpeaks de auditu) by order of the King compoundednPaſch. 8. Jac. C. B. the King and the Biſh. of Briſtol and Bauleighs Caſe. vid. Hughe's Parſ. Law, cap. 18.. In that Caſe Two Preſidents it ſeems were ſhewed in proof of that Opinion, which inclined to have it taken according to the very value of the Beneficeo40 El. C. B. Puſ… and Sm…h's Caſe. & Trin. 43 El. B. R. rot. 564. Bond and Triket's Caſe. Cro. par. 3. p. 858.; notwithſtanding, when the ſame point came again ſeveral years after into queſtion, the Court then ſeemed to incline againſt the Opinion, which was for the very value of the Benefice: But (ſays he) the Caſe was not then reſolved or adjudged, but remaineth a Queſtion undeterminedpVid. Pa…ſ. Law ubi ſupr. Ʋnder P…pe Innocent. 3.. Quaere the Law. Foſter and Walmeſley Juſtices held the value ſhould be taken according to the Taxed value, as in the Book of Firſt-Fruits: but Warburton and Coke Chief Juſtice, Contra. It hath been Reſolved in Holland's Caſe, and likewiſe in Digby's Caſe, Rep. 4. and often before ſince the Council of Lateran, An. Do. 1215. That if a man have a Benefice with Cure, whatever the value be, and is Admitted and Inſtituted into another Benefice with Cure, of what value ſoever, having no Qualification or Diſpenſation, the Firſt Benefice is ipſo facto ſo void, that the Patron may Preſent another to it, if he will. But if the Patron will not Preſent, then if under the value, no Lapſe ſhall incurr untill Deprivation of the firſt Benefice, and Notice: But if of the value of eight pounds, or above, the Patron at his peril muſt Preſent within Six months by the Statute of 21 H. 8.qShute verſ. Higden. Vaugh. Rep. vid. Anderſ. 1. pa. f. 200. b. p. 236. vide Moor's Rep. C…ſ. Larg. ad eund. effect.. And in that Caſe of Digby it was adjudged, That when a man hath a Benefice with Cure above eight pounds, and afterwards taketh another with Cure, and is Preſented and Inſtituted, and before Induction procures the Letters of Diſpenſation, that this Diſpenſation comes too late: For by the Inſtitution Eccleſia plena & conſulta exiſtit againſt all perſons except the King; for every Rectory conſiſteth upon Spiritualty and Temporalty. And as to the Spiritualty, viz. Cura animarum, he is compleat Parſon by the Inſtitution; for when the Biſhop upon Examination had, admitteth him able, then he doth Inſtitute him, and ſaith, Inſtituo te ad tale Beneficium, & habere curam animarum of ſuch a Pariſh, & accipe curam tuam, &c. Vide 33 H. 6. 13. But touching the Temporalties, as the Glebe-Lands, &c. he hath no Freehold in them until Induction: For by the General Council of Lateran, Anno Dom. 1215. it appeareth, That by the acceptance of two Benefices the firſt is void, Aperto jure; for upon this Council are the Books of the Common Law in this Ca…e founded. And it was in this Caſe Reſolved, That this was an Acceptance of a Benefice cum Cura within the Statute of 21 H. 8. Inſtitution is an Acceptance by the Common LawrCo. 4. Digby's Caſe. 41 Eliz. f. 78..
A man was Preſented to a Church with a Vicarage endowed; the Parſon accepted of a Preſentation to the Vicarage without Diſpenſation: Whether this were a Plurality by the Canon Law, and by the Statute of 21 H. 8. was the Queſtion. Hobart Chief Juſtice was of Opinion, That notwithſtanding they were ſeveral Advowſons, and ſeveral Quare Impedits might be brought of them, and ſeveral Actions maintain'd for their ſeveral Poſſeſſions, yet the Preſentment of one man to the Parſonage and Vicarage was no Plurality, becauſe the Parſonage and Vicarage are but one Cure: And there is a Proviſo in the Statute, That no Parſonage that hath a Vicar endowed, ſhall be taken by the Name of a Benefice with Cure within the Statute, as to make it a Plurality sMich. 22 Jac. B. R. Woodley and the Biſhop of Exeter and Manwaring's Caſe. Cro. par. 2..
(6.) The Lord Hobart in Colt and Glover's Caſe againſt the Biſhop of Coventry and Lichfield is clear of Opinion, That Biſhopricks are not within the Law under the word [Benefices] in the Statute of 21 H. 8. cap. 13. So that if a Parſon take a Biſhoprick, it avoids not the Benefice by force of this Law, but by the ancient Common Law, as it is holden 11 H. 4 60. But withal he holds it as clear, That if a Biſhop have or take two Benefices, Parſonages, or Vicarages, with Cure, either by Retainer, or otherwiſe de novo▪ he is directly as to theſe Benefices within the Law; for he is to all purpoſes for thoſe not a Biſhop (whether it be in his own Dioceſs or not) but a Parſon or Vicar; and by that Name muſt ſue and be ſued, and Preſcribe and Claim. For if any perſon, having one Benefice with Cure, &c. take another, &c. whoſoever will hold two Benefices, muſt have ſuch a Qualification, and ſuch a Diſpenſation, as the Law 21 H. 8. requires: Whereupon the Lord Hobart in the foreſaid Caſe is clear of Opinion, That if a man be qualified Chaplain to any Subject, and then be made a Biſhop, his Qualification is void, ſo as he cannot take two Benefices de novo after by force of that Qualification: But if he had lawfully two Benefices before his Biſhoprick, he may by Diſpenſation of Retainer (beſides his former Diſpenſation, to take two Benefices) hold them with his Biſhoprick. And if a man, being the King's Chaplain, take a Biſhoprick, he holds that he ceaſeth to be the King's Chaplain; and Biſhops are not in that reſpect Chaplains to the King, within the meaning of the Statute: So that the Clauſe of the Statute that gives the King power to give as many Benefices as he will of his own gift to his Chaplain, will not ſerve themqMich. 10 Jac. Rot. 1642 Colt and Glover verſ. Biſhop of Coventry and Lichfield. Hob. Rep.. In this Caſe of Colt, &c. againſt the Biſhop of &c. he is of Opinion, That if a man have a Benefice with Cure worth above 8 l. he cannot without Qualification and Diſpenſation procure another with Cure, to be united to it after, though they make but one Benefice; for this Cautel of Union is provided for by Name: But of Unions before, he is of another Opinion▪ Caſe Colt, Hob. Rep.
(7.) In ancient times the Pope uſed to grant Diſpenſations of the Canons in this Realm, and ſo might the King have done. The firſt Statute that reſtrain'd the power of the Pope, was that of 21 H. 8. of Pluralities: That the Church ſhall be void, notwithſtanding any Grant of the Pope: Alſo the power of the Pope was taken away by the Statute of 25 H. 8. Before that of the 21 H. 8. the Pope might have diſpenſed with a man to have twenty Benefices; and ſo might the King. The 21 H. 8. was the firſt Statute, or Law, which gave allowance for Pluralities; afterwards by the 28 H. 8. the power of the Pope was given to the King: But as it was ſaid and agreed in the Caſe of Evans and Aſcough, that was not by way of Introduction, but Cumulutive and by way of Expoſition. And by that Statute the Archbiſhop of Canterbury had in this matter a concurrent power with the King, and Diſpenſation granted by the King, or by the Archbiſhop, is goodrHill. 22. Jac. B. R. rot. 1164. Evan… verſ. Aſcough. Latch. Rep.. Alſo in the ſaid Caſe it was agreed by all the Juſtices, That if a Parſon or Dean in England doth take a Biſhoprick in Ireland, it makes the firſt Church void by Ceſſion; becauſe Ireland is a Subordinate▪ Realm to England, and governed by the ſame Law: For it was there agreed by all, as well by the Juſtices as thoſe of the Barr, That if a Parſon or Dean in England take a Biſhoprick in Ireland, the firſt Church is void by Ceſſion. Juſtice Whitlock gave this Reaſon for it, Becauſe there is but one Canon Law per totam Eccleſiam; and therefore wherever the Authority of the Pope extended it ſelf, be it in one or divers Realms▪ the taking of a Biſhoprick made the Deanary or Parſonage void. Nemo poteſt habere duas Militias, nec duas Dignitates, & eſt impoſſibile quod unus homo poteſt eſſe in duobus locis uno tempore. And 5 R. 2. F. Tryal 54. the whole Spiritual Court is but one Court; which Book is very remarkable to that purpoſe, That the Canon Law is but one Law: Which Reaſon was alſo given by Juſtice Doderidge in the ſame Caſe, and upon the ſame point, who ſaid, That the Law of the Church of England is not the Pope's Law, but that all of it is extracted out of Ancient Canons; as well General as National. Another Reaſon which he then gave was, Becauſe Ireland is a Subordinate Realm, and governed by the ſame Law: Becauſe although before the time of H. 2. they were ſeveral Kingdoms or Realms, yet the Laws of England were there Proclaimed by King John, and is ſubject to the Laws of England. And if the King, having a Title to Preſent to a Church in Ireland, confirm it to the Incumbent under the Great Seal of England, it is good. 45 Ed. 3. 70.sIbid. f. 234..
(8.) In Savacre's Caſe it was adjudged in the Common Pleas, That if a Baron, or others mentioned in the Statute of 21 H. 8. take divers Chaplains which have many Benefices, and after they diſcharge their Chaplains from their Service, they ſhall retain their Benefices during their Lives, and if the Baron takes others to be his Chaplains, they cannot take many Benefices during the Lives of the others, which are Beneficed and Diſcharged of their Services; for if the Law were otherwiſe, the Lords might make any capable of holding Benefices by admitting them to be their Chaplains tSava…re's Caſe. Owen's Rep..
(9.) T. prayed a Prohibition to the Arches; the Caſe was this, One had a Recovery in a Quare Impedit, and he had a Writ to the Biſhop againſt T. upon which A. his Clerk was admitted, &c. and after the Recovery died, and T. ſuppoſing his heir to be in the Ward of the King, and that the ſaid A. took another Benefice without ſufficient Qualification, by which the Church was void by Ceſſion, and he attained a Preſentation of the King, and he was Admitted, &c. by the Lord-keeper, being within the Dioceſs of Lincoln, and A. ſued him in the Eccleſiaſtical Court, and T. prayed a Prohibition, and it was granted per totam Curiam; for without queſtion there ought nothing to be queſtioned in the Eccleſiaſtical Court after the Induction of the party: And whether it is a Ceſſion or not, doth properly belong to the Common Law: And Jones cited a Judgment in William's Caſe according. Note, that by the Conſtitution of Otho and Othobon, That Inſtitution and Induction is voidable in the Eccleſiaſtical Court, if no Prohibition be prayednThornton's Caſe. Whinch. Rep..
(10.) In the Caſe of the King againſt the Archbiſhop of Canterbury and Thomas Pruſt Clerk in a Quare Impedit, was vouched Holland's Caſe in Cok. 41, 51. to ſhew that there is a difference between Voidance by Act of Parliament, and Voidance by the Eccleſiaſtical Law: For before the Statute by the taking of the ſecond Benefice, the firſt Church was void; but not ſo that the Lapſe incurred upon it. And as for Pluralities, the words of the Statute are, That it ſhall be void, as if he were naturally dead; and therefore if a man takes a ſecond Benefice and dies, Iſſue ought to be taken, whether the firſt vacavit per mortem; And it is found, That Not: For it was void before the death of the Incumbent wThe King againſt the Archbiſhop of Canterbury and Pruſt. Hetley's Rep..
(11.) P. was Collated, Inſtituted, and Inducted by the Biſhop of Exeter, Patron Dr. Hall; the Biſhop Collates another, pretending that the firſt Incumbent had taken a ſecond Benefice, whereupon the firſt was void; and revera the firſt Incumbent had a Diſpenſation: And notwithſtanding that, the Biſhop Sequeſters the Benefice; and upon Diſcovery thereof to the Court, a Prohibition was grantedxPinſon's Caſe in He… ley's Rep..
(12.) In Bene's Caſe againſt Trickett, the point was, Whether the value of the Church for Plurality by 21 H. 8. ſhall be eight pounds according to the Book of Rates and Valuation in the Firſt-fruits Office, or according to the very value of the Church per Annum. Atkinſon, That according to the value of the King's Books: For the Parliament never thought that any man could live upon ſo little as eight pounds per Annum, which is not ſix pence a day. Note, 38 E. 3, 4. and Dyer 237. but by the Court, That it ſhall be according to the very value of the Church in yearly value in the Statute of 21 H. 8. And by Gawdy and Fenner, to whom agreed Yelverton, That the eight pound ſhall be accounted according to the very value of the Church per Annum yTrin. 43. Eliz. B. R. Bene verſ. Trickett. Noy's Rep..
(13.) In a Quare Impedit it was doubted, If A. having two Benefices with the Cure by Diſpenſation, and then takes a third Benefice with Cure, If now both the firſt Benefices, or the firſt of them only be void. Hieron ſaid, That it was adjudged that both of them ſhould be voidzThe King againſt the Biſhop of Chicheſter. Noy's Rep..
(14.) If the King grant a Licence to an Incumbent to be an Incumbent and a Biſhop▪ and he afterwards be made a Biſhop, the n…ice is not voida11 H. 4. 60. H. 39. El. B. R. inter A…miger & Holland per Cur. Reſolv'd.. Henry de Blois, Brother to King Stephen, was Biſhop of Wincheſter, and Abbot of Glaſſenbury bLiber Succeſſionis 19..
(15.) It ſeems that at the Common Law, if an Incumbent had taken a ſecond Benefice with Cure, neither the firſt nor the ſecond had been voidcCo. 4. Holland. 75. b.. But by the General Council of Lateran, held in the year 1215. it was ordained, That if a man took divers Benefices with Cure of Souls, the firſt ſhould be void, unleſs he had a Diſpenſation from the PopedCo. 4. Digby 79.. This Conſtitution of the ſaid General Council is ratified and confirmed in Pecham's Conſtitutions, at a Provincial Synod held in this RealmeLindw… … 81.. Alſo if an Incumbent take a Second Benefice with Cure, whereby the firſt is void by the Canon as to the Patron, ſo as he may Preſent before any Deprivation, yet until Deprivation it is not void as to a Stranger; for if he ſues a Pariſhioner for Tithes, the taking of a ſecond Benefice is not any barr to him. Trin. 13. Car. B. R. per Juſtice Bark. which Juſtice Yelverton in his Argument in Pruſt's Caſe ſaid, That it had been ſo AdjudgedfRol. Abr. ve…b. Preſentment. lit. L. pag. 353.. And if an Incumbent of one or more Benefices with Cure be conſecrated Biſhop, all his Benefices are ipſo facto vold; upon which Voidance the King, and not the Patron, is to Preſent to the Benefices ſo void by Ceſſion; and any Diſpenſation after Conſecration comes too late to prevent the Voidance; for the Pope could formerly, and the Archbiſhop now, can ſufficiently Diſpenſe for a Plurality by the Statute of 25 H. 8.g…des ver…. the Biſhop of Oxf…d, in Vaugh. Rep.. The chief Text of the Canon Law againſt Pluralities ſeems to be that of the Decretal de Praebend. & Dign. c. de multa, where it is ſaid, That in Concilio Lateranenſi prohibitum, ut nullus diverſas Dignitates Eccleſiaſticas, vel plures Eccleſias Parochiales, reciperet, contra Sanctorum Canonum Inſtituta, &c. Et praeſenti decreto ſtatuimus, ut quicunque receperit aliquod Beneficium curam habens animarum annexam, ſi prius tale beneficium habehat, ſit ipſo jure privatus, & ſi forte illud retinere contenderit, etiam alio ſpolietur, &c. Conſonant to which is that in Decret. Cauſ. 21. q. 1. In duabus Eccleſiis Clericus conſcribi nullo modo poteſt.
In the Caſe of a Commendam adjudged in Ireland, the Original and Inconvenience of Diſpenſations and Non obſtante's was well weighed and conſidered;Paſch. 9. Jac. … en Ireland en le Caſe de Commenda enter le Rey & …yprian Horsfall & Robert Wale. Davis Rep. where it was ſaid, That the Non obſtante in Faculties and Diſpenſations was invented and firſt uſed in the Court of Rome; for which Marſil. Pat. pronounced a Vae againſt the ſaid Court, for introducing that clauſe of Non obſtante, That it was an ill Preſident, and miſchievous to all the Commonwealths of Chriſtendom. For the Temporal Princes perceiving that the Pope diſpenſed with Canons, in imitation thereof have uſed their Prerogative to diſpenſe with their penal Laws and Statutes, when as before they cauſed their Laws to be religiouſly obſerved, like the Laws of the Medes and Perſians, which could not be diſpens'd with. See the Caſe of Penal Statutes Co. 7. fo. 36. h. For this Reaſon it was that a Canoniſt ſaid, Diſpenſatio eſt vulnus quod vulnerat jus commune. And another ſaith, That all abuſes of this kind would be reformed, Si duo tantum verba, viz. [Non obſtanie] non impedi…ent. And Matth, Par. in Anno Dom. 1246. having recited certain Decrees made in the Council of Lions, which were beneficial for the Church of England, Sed omnia baec & alia (ſays he) per hoc repagulum [Non obſtante] infirmantur.
(16.) In a Quare Impedit the Caſe was, Dr. Playford being Chaplain of the King,Hill. 1610. 8 Jac. C. B. Wallop againſt the Biſhop of Exeter and Murrey, Clerk Brown… pa. 2. accepted a Benefice of the Preſentation of a common perſon; and he after accepted another Preſentation of the King, without any Diſpenſation, both being above the value of eight pounds per Annum. The Queſtion was, Whether the firſt Benefice was void by the Statute of 21 H. 8. cap. 13. For if that were void by the acceptance of the ſecond Benefice without Diſpenſation, then this remains a long time void, ſo that the King was intituled to preſent by Lapſe, and preſented the Plaintiff. The Statute of 21 H. 8. provides, That he who is Chaplain to an Earl, Biſhop, &c. may purchaſe Licence or Diſpenſation to receive, have, and keep two Benefices with Cure, provided that it ſhall be lawful for the King's Chaplains, to whom it ſhall pleaſe the King to give any Benefices or Spiritual Promotions, to what number ſoever it be, to accept and receive the ſame without incurring the danger, penalty, and forfeiture in this Statute compriſed; upon which the Queſtion was, Whether by this laſt Proviſo, a Chaplain of the King having a Benefice with Cure above the value of eight pounds per Annum, of the Preſentation of a Common perſon, might accept another Benefice with Cure over the value of eight pounds alſo of the Preſentation of the King without Diſpenſation… The words of the Statute, by which the firſt Church is made void, are, That if any Parſon having one Benefice with Cure of Souls▪ being of the yearly value of eight pounds or above, accept or take any other with Cure of Souls, and be Inſtituted and Inducted into poſſeſſion of the ſame, that then, and immediately after ſuch poſſeſſion had thereof, the firſt Benefice …hall be adjudged in the Law to be void; Vide Holland's Caſe, 4 Co. 75. …. This Caſe was not argued, but the point only opened by Dodesidge, Serjeant of the King, for the Plaintiff.
(17.) A. was Parſon of M. which was a Benefice with Cure, of the value of eight pounds,T…. 13. …. B. R. Dodj… and Lyn… 's Caſe. …ro. par. 3 and was Chaplain to the Earl of S. and obtained a Diſpenſation to accept of another Benefice, modo ſit within Ten miles of the former, which was confirmed under the Great Seal▪ He accepted of another Benefice Seventeen miles diſtant from the firſt, and was Inſtituted and Inducted, both Benefices being within the Dioceſs of Lincoln. The Archbiſhop in his Viſitation Inhibited the Biſhop of Lincoln not to execute any Juriſdiction during his Viſitation: It was found that the Patron had neglected to preſent to the firſt Benefice within the Six months; and that the Biſhop of Lincoln within the ſecond Six months Collated one to the firſt Benefice, who was Admitted and Inducted. The points were, Whether (1) Si modo was a Condition in this Licence, and made the firſt Benefice void when he took the Second? (2) Whether the Biſhop Collating, during the time of the Archbiſhop's Viſitation, and after his Inhibition, was good? Reſolved, That in the principal Caſe, Si modo ſhould not be taken for a Condition, and that the Benefice ſhould not be void quoad the Patron, as the taking of a ſecond Benefice is by the Statute of 21 H. 8. and then the ſecond point of the Collation by the Biſhop, in the time of the Viſitation, and alſo the Inhibition, will not be material.
(18.) Quare Impedit, Mich. 41 & 42 Eliz. B. R. The Queen and Page's Caſe. Cro. p. 1.pretending the Church void for Plurality; The Defendant ſaid he was Chaplain to the Lord M. and pleaded a Diſpenſation from the Archbiſhop of Canterbury, and Confirmation thereof. In the Letters of Diſpenſation the words were (mentioning the two Benefice to be of ſmall value) unimus anneximus & incorporamus, the ſecond Benefice to the firſt without the word of Diſpenſamus thereof: The Court held it a ſufficient Diſpenſation; for it is not of neceſſity to have the word Diſpenſamus; and if the Circumſtances prove it, it is ſufficient.
(19.) In the Caſe between Whetſtone and Higford, it was held by the Juſtices, That if the Queen retains a Chaplain by word only, yet he is ſuch a perſon as may have a Plurality within the Statute of 21 H. 8. of Pluralities, and is a perſon able to make a Leaſe.Cro. ibid. And in a Quare Impedit it was Reſolved, That if there be two Parſons of one Church, and each of them hath the entire Cure of the Pariſh, and both the Benefices be of the value of eight pounds,Cro. ibid. and the one dieth, and the other be preſented, it is a Plurality within the Statute of 21 H. 8.
(20.) The Counteſs of K. being a Widow, retained two Chaplains, and after retained a third; the third purchaſed a Diſpenſation to have two Benefices with Cure,The Queen and Darcte's Caſe Cro. p. 1. Or …Di…rte's Caſe. vide Mo…r's Rep. and he was advanced accordingly, whereof the firſt was above the value of eight pounds: It was adjudged in this Caſe, and afterwards affirmed in a Writ of Error, That he was not lawfully qualified within the Statute of 21 H. 8. by which the firſt Benefice, by acceptance of a ſecond, was void; and that the Title did accrue to the Queen to preſent; for it was Reſolved, That the Statute gives power to a Counteſs to retain two Chaplains and no more, and when the Statute is executed ſhe cannot retain a third Chaplain; and the Retainer of the third cannot diveſt the capacity of Diſpenſation which was veſted by her Retainer in the two firſt Chaplains.
(21.) A Parſon having a Benefice of the value of eight pounds,Mi…h. 43 & 4… Eliz. B. R. Bond and Tickett's Caſe. Cro. par. 1. took a ſecond Benefice without Diſpenſation, being above the value of eight pounds: The Court took no conſideration of the Statute of 26 H. 8. and the value there mentioned, but regarded only the true value of the Benefice.
(22.) For Title to an Avoidance the Statute of 21 H. 8. was pleaded, Agar and the Biſhop of … 's Caſe. Moor's Rep.touching the taking of a ſecond Benefice with Cure; Iſſue was upon the Induction; by which it ſeemed to be admitted, That Admiſſion and Inſtitution did not make the firſt Benefice void without Induction.
(23.) Quare Impedit brought, the Defendant pleaded the Statute of 21 H. 8. cap. 13. of Pluralities,21 H. 8. c. 13. that the laſt Incumbent had a Benefice with Cure of the value of eight pounds, and took another Benefice and was Inducted 1 Eliz. upon which the Queen did preſent the Defendant by Lapſe: The Plaintiff ſhewed the Proviſo in the Statute of 25 H. 8. cap. 21.25 H. 8. c. 21. That Chaplains qualified might purchaſe Diſpenſations and take two Benefices, and that 1 Eliz. before the Parliament he purchaſed a Diſpenſation from the Pope, and after he took the ſecond Benefice, and died. The Queſtion was, Whether before the Statute of 25 H. 8. the Pope might grant Diſpenſations?Dolman and the Biſhop of Salisbury's Caſe. Moor's Rep. It was Reſolved, he could not; for that the King's of England had been Sovereigns within their Realms of the Spiritualties; and the Juſtices held, That the Diſpenſation in queſtion was made 1 Eliz: and ſo out of the Statute of 25 H. 8. cap. 21. and that this Diſpenſation to retain a ſecond Benefice was againſt the Statute of 21 H. 8. cap. 13.
(24.) The Counteſs of K. had two Chaplains by Patent, a third had no Patent of Chaplainſhip,The Queen, Biſhop of Lincoln and Skiffing's Caſe Moor's Rep. but he was firſt Retained, and took two Benefices by Diſpenſation: It was Adjudged, he was lawful Chaplain; for the Patent is not of neceſſity, but only in caſe where he hath cauſe to ſhew it, and here he hath no cauſe to ſhew it, becauſe her Retainer was good without a Patent.
(25.) The Caſe between Robins, Gerrard, and Prince was in effect this, viz. A man is Admitted, Inſtituted, and Inducted into a Benefice with Cure of the value of eight pounds, and afterwards the King preſents him to the Church of D. which is a Benefice with Cure, and he is Admitted and Inſtituted. The Archbiſhop grants him Letters of Diſpenſation for Plurality, which Letter the King Confirms, and afterwards he is Inducted to the Church of D. In this Caſe it was Adjudged, That the Diſpenſation came too late, becauſe it came after the Inſtitution; for by the Inſtitution the Church is full againſt all perſons except the King; and as to the Spititualties, he is full Parſon by the Inſtitution. (2.) Reſolved, That admit the Church was not full by the Inſtitution until Induction, yet the Diſpenſation came too late; for that the words of the Statute of 21 H. 8 of Pluralities are [may purchaſe Licence to receive and keep two Benefices with Cure of Souls,]Moor ibid. and the words of Diſpenſation in this caſe, were recipere & retinere▪ and becauſe by the Inſtitution the Church was full, he could not purchaſe Licence to receive that which he had before, and he cannot retain that which he cannot receive.
(26.) In the caſe of a Prohibition it was Reſolved, That by the Common Law before the Statute of 21 H. 8. the firſt Benefice was void without a Sentence Declarative,A…miger and Holland's Caſ. Moor's Rep. ſo as the Patron might preſent without notice. (2.) That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it. (3.) That the Queen might grant Diſpenſations as the Pope might, in caſe where the Archbiſhop had not Authority by the Statute of 25 H. 8. to grant Diſpenſations, becauſe all the Authority of the Pope was given to the Crown by the Statute. But yet the Statute, as to thoſe Diſpenſations which the Archbiſhop is to grant, hath Negative words, and the Biſhop ſhall make the Inſtrument under his Seal.