C Commemoration. Ommemorations in the ancient church were recitals. of the names, and honourable mention made in the folemn offices of worship, of fuch perfons as had been eminent for piety and fanctity, and who had departed this life in the fear of God, and in communion with the church of Chrift. And this was done with a kind of prayer and thanksgiving; not from any fuppofed benefit that it would be to the dead, but for the example and encouragement of the living. And from hence may be deduced the obfervation of faints days in the church. Ayl. Par. 190. But in procefs of time, as this was ufually performed upon the day of the perfon's death, the fame degenerated into annals, anniversaries, obits, and fuch like: wherein prayers were put up for the foul of the deceased, and maffes celebrated for the redemption thereof out of purgatory. And upon this foundation the chauntries were eftablished and endowed. Ayl. Par. 190. Alfo, where the fervice of the leffer holiday falleth in with a greater, it is called a' commemoration; in which the service of the greater holiday is performed, and commemoration only is made of the faint for whom the inferior fervice is appointed. Gibf. 263. Commendam. Ommendam is a benefice or ecclefiaftical living, Commendam, which being void, to prevent its becoming void, what. commendatur, is committed, to the charge and care of fome fufficient clerk, to be fupplied until it may be conveniently provided of a paftor. Thus when a parfon of a parish is made the bishop of a diocefe, there is a ceffion of his benefice by the promotion; but if the king gives him power to retain his benefice, he fhall continue parVOL. II. B fon I i Reftraints of fon thereof, and fhall be faid to hold it in commendam. God. 230. (a) 2. By a conftitution of Othobon: Whereas divers percommendam. fons, to avoid the laws against pluralities, do procure vacant benefices, to be commended to them, to the great decay of piety and hospitality, and to the fin of thofe who grant fuch commendams; we do decree that no church fhall be granted in commendam, but for just and lawful cause: and in fuch case, that no church fhall be commended to any person who hath more than one benefice with cure of fouls; and that no perfon shall have more commendams than one; on pain that the fame fhall be void, and the bishop who shall grant fuch commendam shall be suspended from collating or prefenting unto benefices until he shall recal the fame. Athon. 120. And by a conftitution of archbishop Peccham: We do decree, that if any person shall take or obtain more than one benefice with cure of fouls, or otherwise incompatible, without difpenfation of the apoftolic fee, either by way of inftitution or of cuftody or commendam, or one by inftitution and another by commendam, except they be held in that manner which Gregory's conflitution made in the council of Lyons doth permit; he fhall be deprived of all benefices so obtained, and be excommunicated ipfo facto, and not abfolved but by us or our fucceffors or the fee apoftolic. Lind. 136. Gregory's conftitution] Which was, that no commendam fhould be granted to any perfon, but who was of lawful age, and a priest, and but one commendam to one perfon, and that only when evident neceffity or (a) The words "to prevent its becoming void," are not in Godolphin, and feem to have been added to the definition to make it extend to commendams retinere, which Lord Hobart fays are not properly commendams though ufually called fo, but merely faculties to retain; infra 4. for according to him there is no difference between a commendam and a prefentment, but that the one prefents the parfon to the church, the other commits the church to the parfon. Hob. 150. According to the fame authority commendams are of three degrees; one femeftris, that the church may not be without a parfon during the patron's refpite of fix months; another perpetua, or for life; the third limitata, or temporary, which limitation however is not allowed in commendams capere. Hob. 144. 153. Colt and Glover v. Bp. of Coventry and Litchfield, where much learning on this fubject is to be found. S. C. 1 Rol. Rep. 451. and Moore 898. the the advantage of the church required it, and the fame to continue no longer than for fix months Gibs 913. (b) 3. The poffeffion of a bishoprick doth of common right Benefice vacated void all other promotions: this is the ancient law of the by acceptance of a bishoprick. church as expreffed in a canon of the council of Lateran under Alexander the third (c). And agreeable hereunto (and without doubt, derived from this) are the declarations that we meet with every where in the books of common law, that of common right all promotions are vacated by the taking of a bishoprick as fuch (d): but the law is otherwife, if one is a mere titular bifhop, or a fuffragan bishop upon the flatute of the 21 H. 8. c. 14. Gibf. 913. commendam. 4. But this voidance may be prevented by difpenfation But the avoid. of retainer, granted before poffeffion of the bishoprick: ance may be which is commonly called a commendam retinere. This the prevented by a pope had power to do, as claiming a right to difpofe of all promotions becoming void in that manner. And the fame thing the king may do; either fingly and by himfelf (as many of the law books hold), or at least by command to the archbishop to exert the right of difpenfation vefted in him by the ftatute of the 25 H. 8. c. 21. as the ordinary method is. Which fort of commendam is defined by Hobart to be, a faculty of retention and continuation of the benefice in the fame perfon and flate wherein it was, notwithstanding fomething intervening (as a bishoprick, or the like) that without fuch a faculty would have avoided it (e). By which means, the inftitution and induction, or other method whereby the perfon obtained fuch benefice, remain and are continued in their full force. And it being the doctrine both of canon and common law, that former promotions are not vacant, but by confecration in cafe of creation, and by confirmation in cafe of translation; if fuch difpenfation comes before thefe, it comes in time enough to continue the poffeffion; but otherwise it comes too late (f). Thus it is faid in the books of common law, that cardinal Beaufort's difpenfation to hold the bishoprick of Winchester, coming after (b) 6° 1. 6. 15. (d) 4 Mod. 210. (c). X. 1. 6. 7. (e) Hob. 143. (f) Noy 93, 94. W. Jones 158. Vaugh. 18. Evans and Kiffin v. Afkwith. Whether a bi he was made cardinal, was void; but that cardinal Wolfey's for the archbishoprick of York, coming before, was good. Gibf. 913. (g) And not only dignities and benefices have been granted in' commendam, but also headships of colleges, and hospitals, and that by difpenfation; as, for inftance, of headfhips, St. John's in Oxford, to Dr. Mews bishop of Bath and Wells; of Magdalen college in Oxford, to Dr. Hough bishop of Oxford; of Pembroke college, to Dr. Hall bishop of Brifto! and of Hofpitals, at St. Ciofs near Winchester, to Dr. Compton bishop of Oxford; and St. Ofwald's near Worcester, to Dr. Fell bishop of Oxford. Id. It hath been questioned, whether a lapse might be made a commendam: but that feems to be a groundless nicety; fince it is certain, that whoever bath right to present by fuch lapfe, hath by the fame reafon a right to confent that it be granted in commendam perpetual, which is equivalent to a prefentation. Id. 5. It hath been questioned heretofore, whether a bishop shop may have a could take a commendam in his own diocefe, because the commendam in fame perfon cannot be vifitor and vifited: but it hath been answered, that the bishop is under the correction of the metropolitan and accordingly, that he may have fuch commendam. Gibf. 913. (b) his own diocefe. Patron's confent necessary. How far a com mendam conti Ques the incumbency. 6. No commendam can be granted but with confent of the patron. This is the doctrine of the canon law (i). And therefore in granting a commendam retinere, the king (who is patron by the promotion) fignifies his confent, by his mandate to the archbishop to grant difpenfation: and if the commendam be by recipere, it is either to take a promotion in the bishop's own gift, and fo his acceptance is a confent; or in the gift of fome other patron, and then the confent of fuch patron must be given in an authentick manner, and mentioned in the difpenfation. And Hobart faid, that if the archbishop fhould commend to a certain. church void, without the patron's confent; the inftrument of commendam would be void, tho' the patron should confent afterwards. Gibf. 913, 4. (k) 7. By a commendam retinere the incumbency is continued. This follows plainly from what hath been faid; that the voidance is thereby prevented, which would other (g) Dav. 80. (i) Atb. 131. (b) 1 Rol. Rep. 463. Moore, 899. |