Abridgment of Ecclesiastical Laws, Treatise · Chapter 5
CHAP. V.
Of Congé d'Eſlire, Election, and Confirmation.
1. What Congé d'Eſlire ſignifies; the Original thereof.
2. To whom it is directed, and the manner of Proceedings thereupon, and of Election.
3. Confirmation of Biſhops, the form or manner thereof.
4. Confirmation in a Temporal, not Spiritual ſenſe, what?
5. The Confirmation of Biſhops Elect beyond Sea, far different from this in England.
6. The Law and Practice in France, touching the making of Biſhops.
(1.) COngé d'Eſlire, in French, [Leave to Chuſe] is the Kings permiſſion to a Dean and Chapter to chuſe a Biſhop in the time of VacancyaF. N. B. 169. Term. Leg.. And time was when this Venia Eligendi was alſo the permiſſion Royal to an Abby or Priory of his own Foundation to chuſe their Abbot or PriorbIbid. B. & 170 B, C, &c.. But we now underſtand it under no other ſignification than as his Majeſties leave vouchſafed to a Dean and Chapter to elect a certain perſon to ſucceed as Biſhop of that Dioceſs, whoſe Epiſcopal See is vacant. For the better interpretation of this Congé d'Eſlire, the Modern Pens refer themſelves to Mr. Guin in the Preface to his Readings, where he ſaith. The the King of England, as Sovereign Patron of all Archbiſhopricks, Biſhopricks, and other Eccleſiaſtical Benefices, had of Ancient time free Appointment of all Eccleſiaſtical Dignities,, whenſoever they hapned to be void: Inveſting them firſt Per Baculum & Annulum, and afterwards by his Letters Patents: And that in proceſs of time he made the Election over to others, under certain Forms and Conditions, viz. That they ſhould at every Vacation before they chuſe, deſire of the King Congé d'Eſlire, that is, Leave or Licenſe to proceed to Election, and then after the Election to crave the Royal Aſſent, &c. He affirmeth alſo by good proof, out of the Books of the Common Law, that King John was the firſt that granted this; and that afterwards it was confirmed by Weſtminſter 1. cap. 1. which Statute was made An. 3. Ed. 1. And again by the Statute [Articuli Cleri] cap. 2. which was Ordained, An. 25. Ed. 3. Stat. 3. it is generally agreed, That the Kings of this Realm were originally the Founders of all Archbiſhopricks and Biſhopricks within this Kingdom, being at firſt Donative per traditionem Baculi Paſtoralis & Annuli: But afterwards King John by his Chapter, 15 Jan. in the ſeventh year of his Reign, De Communi conſenſu Baronum, granted that they ſhould ever after be eligible. And from that time came in the Congé d'Eſlire. Vid. Co. 5. par. 14. in Candry's Caſe. vid. Stat. 1 Jac. cap. 3. vid. 17 Ed. 3. cap. 40.
(2.) The Congé d'Eſlire being granted to the Dean and Chapter, they proceed accordingly to Election, which in the ſenſe here intended, as appropriated to this Subject, is that Regular Choice, which is made of an Eccleſiaſtical perſon to ſucceed in the office and dignity of Biſhop, in, and of that Dioceſs, whoſe See at the time of ſuch Election is vacant. This Election referring to an Epiſcopacy, or the choice of a new Biſhop in a vacant See, is done by a Dean and Chapter; but there are alſo other Elections Eccleſiaſtical relating to a Regular choice of other perſons to other Offices and Dignities in the Church, ſubordinate to the former; but here it is ſpecially meant of ſuch an Election or choice of a new Biſhop, as is precedent to Confirmation, Conſecration, and Inveſture or Inſtalment, being made (as aforeſaid) by the Dean and Chapter of a Cathedral Church, by vertue of the Kings Licenſe and Letters Miſſive, according to his Majeſties nomination and pleaſure, contained in ſuch Letters Miſſive, in purſuance of ſuch Licenſe to Elect, under the Great Seal of England; which Election being made accordingly, the Dean and Chapter are to return a Certificate thereof under their Common Seal unto his Majeſty. This Election alone and of it ſelf, be it to an Archbiſhoprick or Biſhoprick, if the perſon Elected were before the Parſon or Vicar of any Church Preſentative, or Dean of any Cathedral, or held any other Epiſcopal Dignity, doth not ipſo facto make void in Law ſuch former Benefice, or Dignity, or Deanry, becauſe he is not compleat and abſolute Biſhop meerly by ſuch Election, but only Biſhop Elect; And an Election only of ſuch one to a Biſhoprick, who had before a Benefice with Cure, or any other Eccleſiaſtical Dignity or promotion, doth not make a Ceſſion thereofc20 Ed. 3. Fitz. tit. Brief. 25.. And it hath been adjudged, that a Commendam retinere made to ſuch a perſon of ſuch a Parſonage, Deanry, or other dignity Eccleſiaſtical, which the ſaid Parſon had before his Election to the Biſhoprick, is yet good to him notwithſtanding ſuch Election, and ſo remains good to him until his ConſecrationdTrin. 11 Jac. C. B. in Colt, and the Biſhop of Coventry and Lichfield. Hob. Rep. & Evans and Aſcough… Caſe, L…tch. Rep..
(3.) Confirmation hath various ſenſes according to the different Acceptation of the word; but here it is mainly intended for that, which in order to an Inveſture of a Biſhop, is done by the Archbiſhop or Metropolitan of that Province in which a Biſhoprick is void, and unto which a new Biſhop is to be Inveſted, with ſuch uſual Benedictions and Ceremonies as are requiſite to the ſameeVid. Stat. … 25 H. 8. cap. 20.. Note, That before an Archbiſhop or other Biſhop is Confirmed, Conſecrated, or Inveſted, he muſt take the Oath of Fealty unto the Kings Majeſty only, after which the King under his Great Seal doth ſignifie his Election to one Archbiſhop and two other Biſhops, otherwiſe unto four Biſhops within his Majeſties Dominions, thereby requiring them to Confirm his Election, and to Conſecrate and Inveſt the perſon Elected. After which Confirmation and Conſecration he is compleat Biſhop to all intents and purpoſes, as well to Temporalties as Spiritualties. And now he hath plenam poteſtatem tam Juriſdictionis quam Ordinis; and may therefore after his Conſecration certifie an Excommengment; and upon his Confirmation the power of the Guardian of the Spiritualties doth ceaſef18 Eliz. Dyer 350., and a Writ for Admiſſion of a Clerk to a Benefice, awarded Epiſcopo Electo & Confirmato, hath been held to be goodg22 E. 3. 13.. Likewiſe the King may by his Letters Patents, after ſuch Confirmation and before Conſecration, grant unto ſuch Biſhop his Temporaltiesh41 E. 3. 6. & 46 E. 3. 22., which Grant from his Majeſty is held to be potius de gratia quam de jure; but if the Biſhop of one Dioceſs be tranſlated to a Biſhoprick in another, there needs no new Confirmation of him. In the Canon [de Confirmatione Epiſcoporum] of Othobon's Conſtitutions, it is Ordained in haec verba, viz. Ʋt cujus Electionis Epiſcopalis Confirmatio poſtulatur, inter caetera ſuper quibus Inquiſitio & Examinatio praecedere debet Secundum Canonum Inſtituta: Ot…o…on. de Confirm. Epiſt. cap▪ unic.illud exactiſſime inquiratur, utrum plura Beneficia cum animarum cura, qui Electus eſt, antequam eligeretur, habuerit: Et ſi habuiſſe inveniatur, an cum eo ſuper hoc fuerit diſpenſatum: Et an Diſpenſatio, ſi quam exhibuerit, vera ſit, & ad omnia beneficia, quae obtinuit, extendatur. Et ſi in aliquo Praemiſſorum, is ad quem Confirmatio ſpectat Electam deficere ſua diſcuſſione compererit: eidem nullatenus munus Confirmationis impendat.
(4.) There is alſo Confirmation of another kind, and far remote in ſenſe from the former, not of any Eccleſiaſtical conſideration, nor of any Affinity with the other, otherwiſe than Nominal, and that is the ratifying or confirming of an Office, or an eſtate in a Place or Office, to one who hath or formerly had the poſſeſſion thereof by a good Title, but voidable, though not actually and at preſent void. To explain this; A Biſhop grants his Chancellorſhip by Patent to one for term of his Natural life: this Grant is good to the Patentee, and not in it ſelf void; yet upon the Biſhops death it is voidable, unleſs it be corroborated and ratified by the Confirmation of the Dean and ChapteriWeaſt. Symb. par. 1. lib. 2. Sect. 300. F. N. B▪ fo. 169. b. 226. …. 271. d. 162 … Litt. lib. 3. c. ….. This is not the Confirmation here intended, but the Confirmation of the Election of a new Biſhop in order to his Conſecration and Inveſture; which though heretofore was by the Biſhop of Rome, when he claimed a Spiritual Juriſdiction in this Realm; yet now ſince the Stat. of 25 H. 8. c. 20. the ſame is at his Majeſties Command performed by the Archbiſhop or Metropolitan of the Province wherein ſuch Biſhoprick is void, and two other Biſhops, otherwiſe by four ſuch Biſhops within his Majeſties Dominions, as to whom under his Broad Seal he ſhall ſignifie ſuch Election, commanding them to Confirm the ſame, as alſo to Conſecrate and Inveſt the perſon whoſe Election to the Biſhoprick is ſo Confirmed as aforeſaid.
(5.) The Confirmation of the Election of Biſhops to vacant Sees according to the Canon Law, and as practiſed in ſuch Kingdoms beyond Sea, where the Pope doth claim and exerciſe a Spiritual Juriſdiction, is, as to the mode and ſolemnity thereof, quite another thing to what the practice is with us in this Realm.
(6.) In France, though the Nomination of a Biſhop to ſucceed in a vacant See belongs to the French King, yet if he doth not Nominate within Six or Nine months next after the death of the former Biſhop, Jus devolutum eſt ad Papam kCap. ne pro defect… de Elect. c. 2. … conceſſ. Pr… bend. & in Sect. 1. de Regia N…m…na. Pet. Rebuſſ. Reſponſ. 14.; if a Biſhoprick be there void, be it quomodocunque, whether by Ceſſion or otherwiſe, the Law ſpeaks indefinitely in that caſe, the King ſhall Nominate in France who ſhall be the new Biſhop; but then he muſt Nominate within Six or Nine months, which being Elapſed and no Nomination, he cannot afterwards Nominate, Nam jus ſit ad Papam dev…lutum: nec poterit purgare moram lGloſſ. & D D. in dict. cap. 2. de conceſſ. Praebend…. For the Law in that Caſe and in that Kingdom is, that Nominatione non facta intra Sex menſes, devolvitur Nominatio & plena Diſpoſitio Epiſcopatus ad Papam. As alſo appears in that remarkable Caſe controverted touching the Confirmation of the Election, Ad Epiſcopatum Appamiarum; For upon the death of Cardinal de Albret, An. 1520. 10. Dec. that Biſhoprick became void; whereupon the Canons of that Church convened, and proceeded to the Election of a new Biſhop, and choſe D. Bernard de Lordat, who being elected, applied himſelf Archiepiſcopo Tholoſano, tanquam ſuo Metropolitano, ſaltem Vicariis ſuis, for the Confirmation of his Election, which was done accordingly; to which Confirmation the Procurator Regius was not called, who appealed from the ſaid Election and Confirmation, alledging that the Nomination to the Biſhoprick belonged to the King, who Nominated D. John de Puis to the Pope; whereupon the Pope granted the ſaid Biſhoprick to the ſaid John de Puis, who by the Bulls and Proxies of the Pope took poſſeſſion thereof. From all which Appeal was again afterwards in Supremam Curiam, between De … and Lordat; but De Puis obtaining another Biſhoprick, the Proceſs on the Appeal was Extinct, and Lordat by a Definitive, had the Poſſeſſion of the ſaid Biſhoprick Confirmed to himmRebu…. ubi ſupr▪.