Farther, the Archbishop of Canterbury does grant Difpenfation for the Son to fucceed; but the neceflity of fuch Difpenfations in any Cafe except thofe mention'd in the former Chapter, does not appear: Nor have we any Inftance of a Clerk, fince the Reformation, depriv'd for fucceeding his Father without a Difpenfation: And indeed the great Occafion of thofe Canons against the Son's fucceeding the Father, is now remov'd; which was to difcourage the Marriage of Priefts, as any one may fee by Conftit. of Otbo. innotuit. They had indeed another pretence for it; which was, left Benefices, by de grees, fhould become Hereditary, and defcend from Father to Son. See Conft. of Peckham, A. B. Prov. L. 1. T. 8. They are certainly miftaken, who fuppofe that all the Children of Clergymen, in Times of Popery, were Illegiti mate, and would have this to be the reafon of the Canon. If the Son were begotten on a 'Concubine, then, fays Lyndwood Gloff. ibid. there are two Impediments why he fhould not 'fucceed, viz. Baftardy, and being the Son of a "Prieft. But a Prieft might have Children be fore he entred into any Orders, or while he was in the inferior Orders; that is, while he was Ofiary, Acolyth, or Exorcift: For the Subdeacon was charg'd to relinquish his Wife, but thofe in inferior Orders might retain them; by Conft. of Archb. Wetherfhed, Prov. L.3. T. 2. c. Siqui; and 'tis faid, that even Priefts were generally married to the Women they kept in thofe Days. See Ant. Harmer, p. 79. And tho' they kept it fecret, for fear of Deprivation, fometimes. till their Death, yet they often took care that fufficient

fufficient Evidence of their being married might appear after their Death, when they were out of the reach of this hard Canon-Law. See Conf. of Otho. ubi fupra. And even a married Prieft might, by Difpenfation from the Bishop, hold a Sine-cure. L. 3. T. 2. c. Siqui Gloff. Yet we are told, that there are not less than 300 Dif penfations of this Sort granted in the FacultyOffice, fince King Charles II. Reftoration. Bp. G's Code, p. 837

CHA P. XI.

Of Voidance by Death, Ceffion, Refignation, Act of Law, or Deprivation.

T

HE firft, and moft natural Means, whereby a Benefice becomes vacant, is the Death of the Incumbent; and the Patron is oblig'd to take notice of fuch Voidance at his Peril; and if he do not prefent within Six Calender Months, 'tis laps'd to the Ordinary.

II. A fecond Means whereby a Benefice becomes void, is by Ceffion, and that,

1. By Statute: as when a Clerk having one Benefice of 81 per Ann. or upwards, takes a fecond of any Value whatever, without a Difpenfation, the first is ipfo facto void; and the Patron is not to expect Notice from the Ordinary in this Cafe, but may prefent as foon as his former Clerk is inftituted to another Benefice: But

the

the Living does not lapfe, if the Patron prefent within Six Months after the former Clerk's Induction. Watf. c. 2. p. 3.

2. Ceffion by Canon-Law is, when a Clerk having one Benefice under 81. per Ann. Value, takes a fecond, of what Value foever, without a Difpenfation; for in this Cafe, the former Living is only void de Jure; 'tis not void de Facto, as in the former Cafe: For if fuch a Clerk fue for Tythes due from his former Benefice, fince his taking the fecond, 'tis no Bar against him, to fay that he hath taken a fecond Benefice. Wats. c. 2. p. 4. Such a Perfon is by the Conflit. of Archb. Peckham faid, Plura beneficia de facto obtinere; and, fit privatus, let him be deprived. Which had been very improper, had he been thought by the Canon-Law to be ipfo facto deprived, as by the Statute of Hen. VIII. Nay, by the Canon-Law, whatever Clerk endeavoured to poffefs himself of a Living, which had an Incumbent de Facto, tho' not de Jure, before this de Facto Incumbent were Solemnly and Canonically remov'd by the Ecclefiaftical Judge, he incurr'd the Excommunicatio major. See Conftit. Archiep. Stratf. Efurientis.

The Patron may, if he pleafe, prefent a Clerk. to the firft Benefice under Value, fo foon as his former Clerk is inftituted to a fecond. This I take to be one Inftance of a thoufand of the -Commom-Law, or Cuftom of England, prevailing against the Canon-Law; for by this laft 'twas otherwife, as is juft now faid. But if heftay till the Ordinary do, ex officio, declare the Living void, and give notice of it to him, he is fafe: For the fix Months of Lapse do not

com

commence, before fuch Notice be given by th Ordinary to the Patron.

And ifboth Patron and Ordinary do either by Confent, or thro' Ignorance of the Fact, permit fuch a Clerk to continue in Poffeffion, he is fafe the first Living, before Deprivation, cannot lapfe either to the Crown, or Ordinary. If indeed the Ordinary do pafs Sentence of Depriva tion, then Ufurpation may be practised; but no Stranger can difturb the Clerk or Patron, till Voidance be declared. Watf. c. 12. p. 81, 82.

Ceffion is not now made by taking a Deanry, or Archdeaconry, or Prebend; becaufe now they are declared not to be Benefices with Cure, by Stat. 21 Hen. VIII. and Benifices without Cure make no Ceffion either by the Statute or CanonLaw, as now understood; yet fee the foregoing Chapter.

But no Clergyman is capable of being Dean and Prebendary, or holding two Prebends in the fame Church; but the first of thefe Preferiments is faid to be void upon taking the fecond. Watf c. 2. p. 5. Sed quære pro jure? But I take it, that this must be understood of fuch Prebends as give a Man Right both ad locum in Choro, and fuffragium in Capitulo. For if he have only a Stall in the Choir by one Place, he may, I prefume, hold another with it, whereby he has fuffragium in Capitule. Therefore the Arch. deacon, becaufe, as fuch, he has no Vote in the Chapter, may be either Dean or Prebendary in that Church where his Archdeacon's Stall is.

And in Salisbury, the Bishop, Dean, Chancel lor, and Treafurer have each of them a Prebend united to their Dignities; as the late Dean in

form'd

form'd the Editor of Cambden's English Britannia. See Additions to Wiltshire, p.107.

Yet a Man may have two Benefices in one Parochial Church; and if one of them be a Sinecure, by the Stat. 21 H. VIII. he may hold both without Difpenfation: And 'tis great pity but thefe Sine-cures fhould every where be perpetually united to the Vicarages of the fame Church; and, I hear,fome of our good Bifhops are heart i ly engag'd in this Pious Work: But if the two Benefices in the fame Church have both the Cure of Souls actually annex'd to them, they cannot be held without Difpenfation, by one Clergyman. Watf. c. 2. p. 4.

What is call'd Ceffion in other Benefices, is call'd Creation, in relation to a Bishoprick. For if an Incumbent be made Bishop, his Benefice is faid to be vacant by Creation, unless he be only Suffragan, and the King fhall prefent to it, or elfe give the Bishop a Difpenfation to retain it, with his Bifhoprick, and this is called Com mendam retinere: if the Bifhop do take fuch Difpenfation to retain it, and yet afterwards refign it, the rightful Patron, and not the King, hall prefent; and if the Bishop that has fuch Difpenfation do not refign, but be tranflated to another Bishoprick, and do not renew his Dif penfation before he be confirmed, the Benefice is thereby vacated, and the lawful Patron fhall prefent. And 'tis of this Cafe that Mr. Hughes Parf. Law, p. 164. must be understood, when he fays, That of a Voidance by Creation, the Patron must take notice at bis Peril.