Abridgment of Ecclesiastical Laws, Treatise · Chapter 27
CHAP. XXVII.
Of Deprivation.
1. What Deprivation is, and in what Court to be pronounced.
2. The Cauſes in Law of Deprivation.
3. In what Caſes Deprivation ipſo facto, without any Declaratory Sentence thereof, may be.
4. A Cardinal's Caſe of Deprivation by reaſon of Miſcreancy.
5. The Papal Deprivation by reaſon of Marriage.
6. What the Law is in point of Notice to the Patron, in caſe of Deprivation by reaſon of meer Laity or Nonage.
7. The difference of operation in Law between Malum prohibitum and Malum in ſe; and in what Caſes of Deprivation Notice ought to be given to the Patron.
8. Deprivation by reaſon of Degradation; which Degradation at the Canon Law may be two ways.
9. Cawdry's Caſe of Deprivation for Scandalous words againſt the Book of Common Prayer, ſentenced by the High Commiſſioners.
10. Deprivation for Non-conformity to the Eccleſiaſtical Canons, by the High Commiſſioners, agreed to be good.
11. Deprivation for not Reading the Articles of Religion according to the Statute of 13 Eliz.
12. Deprivation by the High Commiſſioners for Drunkenneſs.
13. The Church is not void by the Incumbents being Deprivable, without Deprivation.
14. For an Incumbent to declare his Aſſent to the Articles of Religion, ſo far as they agree with the Word of God, is not that unfeigned Aſſent which the Statute requires.
15. A Church becomes void preſently upon not Reading the Articles, and there needs not any Deprivation in that Caſe.
16. A Caſe wherein a Sentence declaratorie for Reſtitution makes a Nullity in the Deprivation.
17. An Appeal from a Sentence of Deprivation, prevents the Church's being void pro tempore.
18. Ʋpon Deprivation for meer Laity or Incapacity the Lay-Patron muſt have Notice ere the Lapſe incurrs againſt him.
19. An Incumbent Excommunicated, and ſo obſtinately perſiſting 40 daies, is Deprivable.
(1.) DEprivation is a diſcharge of the Incumbent of his Dignity or Miniſtery, upon ſufficient cauſe againſt him conceived and proved▪ for by this he loſeth the Name of his Firſt Dignity, and that either by a particular Sentence in the Eccleſiaſtical Court, or by a general Sentence by ſome poſitive or Statute-Law of this Realm: So that Deprivation is an Eccleſiaſtical Sentence Declaratory, pronounced upon due proof in the Spiritual Court, whereby an Incumbent being legally diſcharged from Officiating in his Benefice with Cure, the Church pro tempore becomes void: So that it is in effect the Judicial incapacitating an Eccleſiaſtical perſon of holding or enjoying his Parſonage, Vicarage, or other Spiritual promotion or dignity, by an Act of the Eccleſiaſtical Law only in the Spiritual Court, grounded upon ſufficient proof there of ſome Act or Defect of the Eccleſiaſtical perſon Deprived. This is one of the means whereby there comes an Avoidance of the Church, if ſuch Sentence be not upon an Appeal repealed. The cauſes of this Deprivation by the Canon Law are many, whereof ſome only are practicable with us in the Eccleſiaſtical Laws of this Realm, and they only ſuch as are conſonant to the Statutes and Common Law of this Kingdom.
(2.) All the Cauſes of Deprivation may be reduced to theſe Three Heads:Vid. Dederidg. de Advowſ. Co par. 5. Cawdrie's Caſe. (1) Want of Capacity. (2) Contempt. (3) Crime. But more particularly, It is evident, that the more uſual and more practicable Cauſes of this Deprivation are ſuch as theſe, viz. a meer Laity or want of Holy Orders according to the Church of England, Illiterature or inability for diſcharge of that Sacred Function,5. Ed. 4. 3. 5 H. 7. 19. 38 E. 3. 2. b. Dyer 8. & 9. p. 254. Irreligion, groſs Scandal, ſome heinous Crime, as Murther, Manſlaughter, Perjury, Forgery, &c. Villany, Baſtardy, Schiſm, Hereſie, Miſcreancy,Co. 558. a. Dyer 293. p. 1 & 2. Misbelief, Atheiſm, Simony,*2 H. 4. 37. Illegal Plurality,†Allen verſ. Naſh. Paſch. 13 Car. 1. B. R. Vid. Parſ. Co. par. 1. c. 9. Incorrigibleneſs and obſtinate Diſobedience to the approved Canons of the Church, as alſo to the Ordinary,*Cro. Jac. 37. Non-conformity, Refuſal to uſe the Book of Common Prayer, or Adminiſter the Sacraments in the order there preſcribed; the uſe of other Rites or▪ Ceremonies, order, form, o… celebrating the ſame, or of other open and publick Prayers; the preaching or publiſhing any thing in derogation thereof, or depraving the ſame having formerly been convicted for the like offenceaSt. 1 Eliz. c. 2. 14 Car. 2. 4. the not Reading the Articles of Religion within Two months next after Induction, according to the Statute of 13 Eliz. cap. 12. The not Reading publickly and ſolemnly the Morning and Evening Prayers appointed for the ſame day according to the Book of Common Prayer, within Two month; next after Induction on the Lord's Day; the not openly and publickly declaring before the Congregation there Aſſembled his unfeigned aſſent and conſent (after ſuch Reading) to the uſe of all things therein contained, or in caſe of a lawful Impediment, then the not doing thereof within one month next after the removal of ſuch Impediment b14 Car. 2. c. 4.; a Conviction before the Ordinary of a wilful maintaining or affirming any Doctrine contrary to the 39 Articles of Religion, a perſiſtance therein without revocation of his Error, or reaffirmance thereof after ſuch Revocationc13 El. c. 12. 5. Br. 2. tit. Trial 54. Drunkenneſs, after Admonition, is cauſe of Deprivation. Hill. 9 Jac. Rot. 2001. Mortimer verſ. Freeman. Brownl. Rep. par. 1. Actions, &c.; likewiſe Incontinency, Drunkenneſs, and 40 daies Excommunication: To all which might alſo be added Dilapidation, for it ſeems anciently to have been a Dilapidator was a juſt cauſe of Deprivation, whether it were by deſtroying the Timber-trees, or committing waſte on the Woods of the Church-Lands, or by putting down or ſuffering to go to decay the Houſes or Edifices belonging to the ſamed29 E. 3. 16. 20 H. 6. 46. 2 H. 4. 3. by Thirwit. Co. 11. p. 72. 20 H. 6. 36.; as appears by Lyford's CaſeeCo. 11. par. 40. 49. in Lyford's Caſe., as alſo in the Biſhop of Salisbury's CaſefMich. 12 Jac. B. R. vid. Parſ. Law, cap. 17. Co. 11. 98. b. 9 E. 4. 34.. Conviction of Perjury in the Spiritual Court according to the Eccleſiaſtical Laws, which although (as aforeſaid) it be a juſt Cauſe of Deprivation, muſt yet be ſignified by the Ordinary to the Patron g38 E. 3. 2 & 3. 5 H. 7. 14. acc.; ſo alſo muſt that Deprivation, which is cauſed by an Incapacity of the party Inſtituted and Inducted for want of Holy Ordersh13 El. Dyer 292. acc. St. 21 H. 8. c. 13..
(3.) By the Statute of 21 H. 8. if an Incumbent having a Benefice with Cure of Souls, value 8 l. per ann. take another with Cure, immediately after Induction thereunto, the former is void, and void without any Declaratory Sentence of Deprivation in the Eccleſiaſtical Court, in caſe the Second Benefice were taken without a Diſpenſation; and of ſuch Avoidance the Patron is to take notice at his periliMich. 9 Car. C. B. rot. 441. The King and the Biſhop of Cant…r. and Pryſt's Caſe. Cro. 1. p. 258. acc.. And as Avoidance may be by Plurality of Benefices incompatible, without Diſpenſation: ſo alſo by not Subſcribing unto, and not reading the 39 Articles (as aforeſaid) which by the Statute of 13 Eliz. c. 12. is a Deprivation ipſo facto, as if the Incumbent were naturally dead▪ inſomuch that upon ſuch Avoidance there need not any Sentence Declaratory of his Deprivation, but the very pleading and proof of his not Reading the ſaid Articles, is a ſufficient Barr to his claim of Tithes, without any mentioning at all his being deprived in the Eccleſiaſtical Courtk31 Eliz. Morris and Eaton's Caſe, adjudg. vid. Parſ. Law, c. 18. Shut… and Higden's Caſe in Vaugh. Rep.. Yet Sir Simon Degge in his Parſons Counſellor putting the Queſtion, What ſhall be intended by the words [Deprived ipſo facto,] as whether the Church ſhall thereby immediately become void by the Fact done, or not till Conviction or Sentence Declaratory? modeſtly waives his own Opinion, and ſays it is a Quaere made by Dyer, what ſhall be intended by the words [ipſo facto Excommunicate] for ſtriking with a Weapon in the Church-yardlDyer 275. b. p. 48., albeit by the Canon Law, which condemns no man before he be heard, requiritur ſententia Declatoria mParſ. Co. p. 1. cap. 9..
(4.) Touching Deprivation by reaſon of Miſcreancy, the Cardinal, who by the Biſhop of Durham was Collated to a Benefice with Cure, is (it ſeems) the ſtanding Preſident; in which caſe it was Agreed, that notwithſtanding the Cardinal's being deprived for his Miſcreancy in the Court of Rome, yet whether he were Miſcreant or not, ſhould be tried in England by the Biſhop of that Dioceſs where the Church wasnVid. 5 R. 2. Fitz. Trial 54. Hughe's Abridg. verb. Deprivation..
(5.) Among the many Cauſes of Deprivation forementioned you do not find that of Marriage in the Prieſt, which was anciently practicable, as appears by what the Lord Coke reports touching an Incumbent in the time of King Ed. 6. who being Deprived in Queen Maries daies, partly becauſe he was a Married perſon, and partly becauſe of his Religion, was reſtored again in the time of Queen Elizabeth. In whoſe Caſe it was Adjudged, That his Deprivation was good until it was voided by a Sentence of Repeal, whereby he became Incumbent again by virtue of his Firſt Preſentation without any new Preſentation, Inſtitution, or InductionoCo. 4. par. 102. Windſor's Caſe.. In thoſe days it was held, That the Marriage of a Prieſt was a ſufficient cauſe to deprive him of his Benefice. Mich. 4. Ma. Dy. 133.
(6.) In the Caſe where a meer Lay-man is Preſented, Inſtituted, and Inducted, he is (notwithſtanding his Laity) ſuch an Incumbent de facto, that he is not Deprivable but by a Sentence in the Eccleſiaſtical Court; but then the Ordinary is in that caſe to give Notice of ſuch Deprivation to the Patron; otherwiſe, in caſe the Ordinary for that cauſe refuſed him, when he was Preſented by the Patron p13 Eliz. Dy. 292.. But where Non-age is the cauſe of Deprivation, as when one under the age of 23 years is Preſented, Notice is to be given, it having been Adjudged, That no Lapſe ſhall incurr upon any Deprivation ipſo facto without Notice, ſeeing the Statute of 13 Eliz. 12. ſays nothing of Preſentation; which remaining in force, the Patron ought to have NoticeqTrin. 18. Car. B. R. the B. of Hereford and Okoley's Caſe. Marſh. 119. Huge's Abridg. verb. Deprivation..
(7.) As in the Admiſſion of a Clerk to a Benefice whatever is a Legal impediment, will alſo be a ſufficient cauſe of Deprivation: ſo in reference to both, the Law takes care to diſtinguiſh between that which is only Malum prohibitum, and that which is Malum in ſe; and therefore doth not hold the former of them, ſuch as frequenting of Taverns, unlawful Gaming, or the like, to be a ſufficient cauſe of a Clerks Non-admiſſion to a Benefice, or of his Deprivation being Admittedr9 Eliz. Dyer 294.: Otherwiſe, if you can affect him with that which is Malum in ſe; in which caſe Notice is to be given the Patron by the Ordinary, of the Cauſe of his Refuſal or Deprivation s12 Eliz. Dyer 293. ….; as alſo it is in caſe of Deprivation for not Subſcribing or not Reading the 39 Articles of Religion according to the foreſaid Statute of 13 Eliz. 12. which Notice ought to be certain and particular, a general Notice of Incapacity not ſufficing; in which caſe an Intimation of ſuch particular Incapacity affixed on the Church-door (if the Patron be in partibus longe remotis, or may not eaſily be affected therewith) will anſwer the Law. Vid. 18 Eliz. Dyer 346. 22 Eliz. Dyer 369. & 16 Eliz. Dyer. 327. & Co. par. 6. 29. Green's Caſe.
(8.) It is evident from the Premiſſes, That a Deprivation from an Eccleſiaſtical Benefice will follow upon a Diſgrading or Degradation from the Eccleſiaſtical Function or Calling, for this Degradation is the Incapacitating of a Clerk for diſcharge of that holy Function, for it is the puniſhment of ſuch a Clerk, as being delivered to his Ordinary, cannot purge himſelf of the Offence, whereof he was convicted by the Jury: And it is a Privation of him from thoſe holy Orders of Clerkſhip which formerly he had, as Prieſthood, Deaconſhip, &c.tStanf. Ple. Cor. fo. 130, & 138.. And by the Canon Law this may be done Two waies, either Summarily, as by Word only; or Solemnly, as by deveſting the party degraded of thoſe Ornaments and Rites, which were the Enſigns of his Order or DegreeuVid. Seld. Tit. of Hon. fo. 787.. But in matters Criminal Princes anciently have had ſuch a tender reſpect for the Clergy, and for the credit of the whole profeſſion thereof, That if any man among them committed any thing worthy of death or open ſhame, he was not firſt executed or expoſed to Publick diſgrace, until he had been degraded by the Biſhop and his Clergy; and ſo was executed and put to ſhame, not as a Clerk, but as a Lay-Malefactor; which regard towards Eccleſiaſticks in reſpect of the dignity of the Miniſtry, is obſerved by a Learned Author to be much more Ancient, than any Papiſtical ImmunityxRidl. View. p. 2. cap. 2. Sect. 3.; and is ſuch a Priviledge as the Church, in reſpect of ſuch as once waited on the Altar, hath in all Ages been honoured with.
(9.) Robert Cawdry Clerk, Rector of the Church of L. was deprived of his Rectory by the Biſhop of London and his Collegues, by virtue of the high Commiſſion to them and others directed, becauſe he had pronounced and uttered ſlanderous and contumelious words againſt and in depravation of the Book of Common Prayer; but the Form of the Sentence was, That the ſaid Biſhop by and with the aſſent and conſent of Five others of the ſaid Commiſſioners his Companions, and namely which Deprived him. It was not ſound that the Commiſſioners were the Natural born Subjects of the Queen, as the Statute Enacts that they ſhould be. And it was moved, That the Deprivation was void; (1) Becauſe, that whereas the Commiſſion is to them, or any Three of them, of which the ſaid Biſhop to be one amongſt others, it ought to have been the Sentence of them all (according to the Authority given to them, which is equal) and not of one with the aſſent of the other. (2) Becauſe it is not found, that the Commiſſioners are the Natural born Subjects of the Queen, as by the words of the Statute they ſhould be. (3.) Becauſe the puniſhment, which the Statute provides for thoſe of the Miniſtry which deprave this Book, is to loſe the profits of all their Spiritual promotions but for a year, and to be Impriſoned by the ſpace of Six months, and not to be Deprived till the Second offence, after that he had been once committed; and therefore to deprive him for the Firſt offence was wrongful and contrary to the Statute. But the whole Court, for the Form of the Deprivation, it is that which is uſed in the Eccleſiaſtical Courts, which alwaies names the chief in Commiſſion, that are preſent at the beginning of the Sentence, and for the other they mention them only as here; but of their aſſent and conſent to it, and in ſuch caſes we ought to give credit to their Form, and therefore it is not to be compared to an Authority given at Common Law by Commiſſion. And it is to be intended, that the Commiſſioners were the Natural born Subjects of the Queen, unleſs the contrary appear: But here at the beginning it is found, That the Queen Secundum tenorem & effectum Actus praedict. had granted her Commiſſion to them in cauſis Eccleſiaſticis, and therefore it appeareth ſufficiently, that they were ſuch as the Statute wills them to be. And for the Deprivation, they all agreed that it was good, being done by Authority of the Commiſſion; for the Statute is to be underſtood, where they proſecute upon the Statute by way of Indictment, and not to reſtrain the Eccleſiaſtical Juriſdiction, being alſo but in the Affirmative. And further, by the Act and their Commiſſion they may proceed according to their diſcretion to puniſh the Offence proved or confeſſed before them, and ſo are the words of their Commiſſion warranted by the Clauſe of the Act. And further, the Eccleſiaſtical Juriſdiction is ſaved in the Act. And all the Biſhops and Popiſh Prieſts were deprived by virtue of a Commiſſion warranted by this Clauſe in the Act. Vid. Hill. 33 Eliz. Rot. 315.xCawdry verſ. Atton. Poph. Rep. Vid. this Caſe Coke lib. 5. 1..
(10.) Before many Noble-men, Archbiſhops and Biſhops, and the Juſtices and Barons of the Exchequer, (1) agreed, That the Deprivation of Minſters for Non-conformity to the laſt Canons was lawful by the High Commiſſioners: For by the Common Law the King hath ſuch a power in Cauſes Eccleſiaſtical; and it is not a thing de novo, given by the Firſt of Eliz. For that is Declaratory only, &c. and the King may delegate it to Commiſſioners: And the King without a Parliament may make Conſtitutions for the Government of the Clergy: and that ſuch a Deprivation ex officio, without Libel, is good. (2.) That the Statute of 5 H. 5. c. 4. is to be intended, when they proceed upon Libel, and not when ex officio, Read the Statute. (3.) When their Petition is Subſcribed by a great number, with intimation, That if the King denies their Suit, that many thouſands of his Subjects ſhall be diſcontented; That this is an Offence Finable at diſcretion, and is near to Treaſon, by raiſing Sedition by Diſcontent, &c.yHil. 2 Jac. 13. Feb. in Noy's Rep. poſt. Caſ. Rye verſus Fullcombe.. Vid. More's Rep. Trin. 2 Jac. in the Star-Chamber.
(11.) By the Statute of 13 Eliz. cap. 12. it is Enacted, That every perſon, &c. to be Admitted to a Benefice with Cure, except that within Two months after his Induction, he publickly Read the ſaid Articles *The 39 Articles of Religion.in the ſame Church whereof he ſhall have Cure, in the time of Common Prayer there, with declaration of his unfeigned aſſent thereto, &c. ſhall be upon every ſuch default ipſo facto immediately deprived. Then follows afterwards a Proviſo relating to this clauſe, viz. Provided alwaies, That no Title to conferr or Preſent by Lapſe, ſhall accrue upon any Deprivation ipſo facto, but after Six months after Notice of ſuch Deprivation given by the Ordinary to the Patron. Thus the Patron immediately upon ſuch Deprivation may Preſent, if he pleaſe, and his Clerk ought to be Admitted and Inſtituted; but if he doth not, no Lapſe incurrs until after Six months after Notice of the Deprivation given to the Patron by the Ordinary, who it ſeems is to ſupply the Cure until the Patron Preſent. In the laſt Caſe of the Lord Dyer 23 El. it was Reſolved, That where a man having a Living with Cure under value, accepted another under value alſo, having no Qualification or Diſpenſation, and was Admitted, Inſtituted and Inducted into the Second, but never Subſcribed the Articles before the Ordinary, as the Statute of 13 of El. requires. Upon Queſtion, whether the Firſt Living vacavit per mortem of him or not? the Court Reſolved, That the Firſt Living became vacant by his death, and not by accepting the Second, becauſe he was never Incumbent of the Second, for not Subſcribing the Articles before the Ordinary, whereby his Admiſſion, Inſtitution, and Induction into the Second Living became void, as if they had never been. This differs from the Caſe of not Reading the Articles within Two months after Induction: For the not Subſcribing the Articles makes, that he never was Incumbent of the Second Living, and conſequently no cauſe of loſing the Firſt; but the not Reading the Articles within Two months after Induction, doth cauſe a deprivation of that whereof he was Incumbent. For as an Incumbent, that without qualification or diſpenſation doth take a Second Living, doth thereby loſe the Firſt: ſo the ſame Incumbent for not Reading the Articles within Two months after his Induction into the Second may loſe the Second, and thereby loſe both, viz. the Firſt by taking a Second without qualification or diſpenſation, and the Second for not Reading the Articles, as aforeſaid, whereof he was Compleat Incumbent by Admiſſion, Inſtitution, and Induction of the Second Living full Two months before he loſt it for not Reading the Articles zVid. Shate and Higden's Caſe, in Vaugh. Rep..
(12.) Parker, being Parſon of a Church was deprived by the High Commiſſioners for Drunkenneſs, and moved for a Prohibition, but it was not granted; and he was directed to have Action for the Tithe,Mich. 8 Jac. Parker's Caſe. Brownl. Rep. p. 2. and upon that the validity of the Sentence ſhall be drawn in queſtion. If a man be Admitted, Inſtituted, and Inducted to a Church, and afterwards is deprived for that he was Inſtituted contrary to the courſe of the Eccleſiaſtical Law, ſuch Sentence of deprivation is void at the Common Law, for that it is as a Lay-Fee by the InductionaHil. 15 Jac. B R. inter Hitchin and Glover. Adjudg'd.. If a Town erect a Common School, and allow Maintenance to the Schoolmaſter, the Biſhop may not remove him and put in another at his pleaſure: But if he be a Recuſant, he may remove him by the Statute of 23 Eliz. cap. 1.bMich. 13 Jac. B The Biſh. of Carl…ſle's Caſe. per Curta…..
(13.) Although an Incumbent be deprivable, yet the Patron cannot Preſent another until he be deprived, for till then the Church is not void. Alſo if the Viſitor by the Kings Command return into Chancery good matter for deprivation of the King's Clerk, yet the King cannot Preſent another to the Church, until he be deprived. Contra 17 E. 3. 59. b. cRol. Abr. ver. Preſent…n. lit. P..
(14.) Where Two Incumbents were of one Church, one ſued the other in the Eccleſiaſtical Court to be deprived for not Reading the Articles, and giving his Aſſent to them according to the Statute of 13 Eliz. The iſſue was, whether he gave his Aſſent, the Jury found he read the Articles, and ſaid, I give my aſſent to them as far as they agree with the Word of God: And it was Adjudged, That it is not ſuch an unfeigned Aſſent as is within the intent of the StatutedSmith and Clerk's Caſe. Cro. par. 1..
(15.) In a Prohibition the Caſe was, J. S. ſeized in Fee of the Advowſon of the Church of C. Preſented thereunto D. who was Inſtituted and Inducted, but did not read the Articles according to the Statute of 13 Eliz. Afterwards came the General Pardon of 18 Eliz. Afterwards D. was deprived by Sentence for not Reading the Articles; he Appealed, and depending the Appeal B. the Plaintiff obtained a Preſentation from the Queen, and was Inſtituted and Inducted. D. died, and he that had the Advowſon Preſented R. the other Defendant, who ſued in the Eccleſiaſtical Court to be Admitted. It was Reſolved, That the Church became void preſently by the not Reading of the Articles, and there needed not any Deprivation, and the Pardon in this caſe works nothing; for the Church being once void for not Reading the Articles, he cannot by the Pardon be reſtored, and the Pardon will not reach to it; for the puniſhment is to loſe his Benefice: Adjudged, the Prohibition to ſtandeTrin. 41 Eliz. B. R. Baker and Brent's Caſe.. But if a man be deprived for an offence done Tempore Parliamenti, and the Offence be after pardoned by the ſame Parliament, and then the Parliament endeth. In this caſe the Deprivation is void in it ſelf, and the party need not ſue to reverſe it; for the Parliament relateth to the Firſt day thereof: As was Reſolved in Foxe's CaſefTrin. 27 Eliz. C. B. Foxe's Caſe. Cro. p. 1..
(16.) In a Quare Impedit the Caſe was, That L. had Two Preſentations, and W. the Third, of Inheritance perpetual: L. Preſented P. who was Inſtituted and Inducted, and afterwards in the time of Queen Mary was deprived, becauſe a Married man; wherefore he again Preſented D. who was Inducted. Afterwards P. was reſtored, with Declaration that he had good Title: Afterwards P. died, W. Preſented H. L. brought the Quare Impedit. It was Adjudged for the Plaintiff, becauſe the Sentence declaratory for the Reſtitution made a Nullity in the Deprivation, and ſo avoided the Incumbency of D. and ſo L. had good Title to Preſent at his Second Turn, and W. had no Title to Preſent as yetgLovedon and Windſor's Caſe. Mores Rep..
(17.) In Hornigold's Caſe againſt Brian it was ſaid, That if a Judgment of Deprivation be given in the Eccleſiaſtical Court, againſt a Parſon for his Benefice; if preſently upon this Judgment he makes his Appeal, the Church is not void, but he remains Parſon during all the time of this Appeal; for if by this he doth reverſe the Judgment,Trin. 13 Jac. B. R. Hornigold verſ. Bryan. Bulſtr. par. 3. he ſhall need no new Inſtitution and Induction: As if a Judgment be given of a Divorce in the Eccleſiaſtical Court; and this is after reverſed by an Appeal, there ſhall need no new Marriage. And in this Caſe Coke Chief Juſtice ſaid, That 39 E. 3. hath the ſame Caſe: And that if an Appeal be from a Sentence of Divorce, they are now by this Baron and Feme again: So if a Parſon be deprived, and Appeals, he is by this Parſon again, and may have an Action of Treſpaſs. And as touching Appeals in reference to Deprivation, there was a famous Caſe in the Court of C. B. about 5 or 6 Jac. a Worceſterſhire Caſe, between Lechmere Plaintiff and Carr Defendant, in an Action of Treſpaſs, and upon Non Culp. pleaded, a Special Verdict was found, viz. That Bonner was made Biſhop of London, in the time of King H. 8. and ſo continued until 2 Ed. 6. at or about which time a Commiſſion iſſued forth to the then Lord Chancellor and others, to Convent Biſhop Bonner before them, and to examine him; and if they found him to be Contumacious, and would not Anſwer them, the Commiſſioners were impowerd then to Impriſon him, or to Deprive him: The Commiſſioners upon this did firſt Impriſon him, and afterwards proceeded further againſt him, to Deprivation: Bonner from this Appealeth (and his Appeal not heard) Nicholas Ridley is made Biſhop of London, who makes a Leaſe of the Park and Mannor of Buſhley, under which Leaſe the Defendant claimed. Afterwards, viz. Primo Mariae, Ridley is declared to be an Uſurper, and Bonner by a Sentence Definitive is reſtored again to the Biſhoprick of London, and makes a Leaſe of the Premiſſes demiſed to the Plaintiff. Upon which Special Verdict the Points ſtirred were theſe: (1) Whether the Deprivation of Bonner was lawful or not; the Authority by the Commiſſion being in the Diſjunctive, viz. to Impriſon or to Deprive him; and (as it was urged) they firſt Impriſoning of him, had thereby executed their Authority, and ſo then the Deprivation void. (2) Admitting the Deprivation void, then Bonner ſtill continued Biſhop of London: And then Ridley was never Biſhop; for that there could not be two Biſhops of London ſimul & ſemel, and ſo the Leaſe by him made to the Defendant was a void Leaſe. (3) Admitting the Deprivation good, then Quid operatur by the Appeal, whether it did not ſuſpend the Sentence of Deprivation: And if ſo, then again, Ridley was no lawful Biſhop; and ſo the Leaſe, under which the Defendant claimed, was void. This Caſe was Learnedly Argued by Common Lawyers, and alſo by Civilians, and the Judges inclined to be of Opinion for the Plaintiff. But the Defendant perceiving this, preferred his Bill in Chancery, and there obtained a Decree againſt Lechmere.
(18.) If a meer Lay-perſon, who is altogether incapable of a Benefice, be Preſented, Inſtituted, and Inducted; yet the Church is not therefore ſaid by the Common Law to be void, as if no Preſentation had been, but is ſtill by that Law full of an Incumbent de facto, licet non de jure, until by Sentence Declaratory in the Eccleſiaſtical Court for want of Capacity the Church be Adjudged void; and upon this no Lapſe ſhall incurr againſt the Lay-Patron, without Notice (of ſuch Incapacity and Sentence of Deprivation thereupon) to him given. King H. 4. Preſented one that was Incapable of his Preſentation, and the Preſentee was thereby Admitted, Inſtituted, and Inducted,Doderidge of Advowſons, Lect. 14. and afterward the Pope enabled the Preſentee by his Bull; yet the King had a Scire facias, and thereby recovered his Preſentation again, becauſe the Incumbent was not capable when he was Preſented.
(19.) If the Parſon or other Incumbent be Excommunicate, and he ſo remaineth in his Obſtinacy for the ſpace of 40 daies, he is for this deprivable of his Benefice, and yet the Church is not void in Deed, without Sentence of Deprivation given againſt him; and if before ſuch Deprivation, the King as Supream Ordinary grant him a Diſpenſation, he ſhall hold his Benefice. Alſo Dilapidation, or ſpoil of the Church Benefice hath at Common Law been held worthyDoderigd. ib. of Deprivation; which Law as it adjudgeth not the Church actually void (Death excepted) without a Sentence of Deprivation: So though ſuch Sentence of Deprivation be meerly wrongful, yet by that Law, as well as by the Canon, the Dignity is void, and the Sentence remaineth in force until it be reverſed by Appeal; and therefore if the party deprived within due time Appeal (upon ſuch Sentence of Deprivation given againſt him) ſuch is the nature thereof, that it will hold the Sentence (upon which it was firſt brought) in ſuſpence: ſo that if it be brought upon Deprivation, it voideth the vigour thereof, and reviveth the former dignity; for ſuch Church ſhall not be void until the firſt Sentence of Deprivation happen to be affirmed in the Appeal. Touching Deprivation by Statutes and Poſitive Laws, vid. 13 Eliz. cap. 12. 26 H. 8. cap. 3. revived by 1 Eliz. cap. 31. or 3.