in one of the courts at Westminster, or at the general or quarter sessions. (1)

cure.

Seventhly. Within two months, or at the time 7. Must read when he reads the morning and evening prayers nine articles the thirtyas aforesaid, he must read and assent to the if it be a place with thirty-nine articles, if it be a place with cure; for although it is said in the statute 13 Eliz. c. 12. § 2., that this is to be done within two months after induction, yet when the having cure of souls is the foundation of reading and assenting, wherever there is cure of souls, the induction may be well interpreted of any actual possession whatsoever. (2)

Eighthly. Within three months after subscrip- 8. Must read tion of the declaration aforesaid, within his parish the ordinary's certichurch as aforesaid, he must read the ordinary's ficate of his certificate of his subscription, and again make subscription the same declaration. (3)

of thirty

nine articles.

cure.

Hence, it is to be observed, that although it Donative has been by some supposed, that a donative could may be with not be a benefice with cure, yet a parish church may be a donative and have cure of souls (4); as is the case of the church of St. Bruian

(1) 1 Geo. 1. st. 2. c. 13. 9 Geo.2.c. 26. 6 Geo. 3. c. 53.

(2) Gibs. Cod. tit. 34. 866. Green's case, 6 Rep. 29. 13 Eliz. c. 12. 23 Geo. 2.

(3) 13 & 14 Car. 2. c. 4.

(4) 1 Inst. 344. a. Degge's P. C. ch. 12. 197. Com. Dig. tit. Don. A.

But when

native.

in Cornwall (1), the Tower of London and several donatives in Wales, where it is said the incumbents are instituted by their respective ordinaries (2); but if the patron once once prepresent to a donative, and the clerk, upon such sented to, no longer a do- presentation, be admitted, instituted, and inducted, it is thereby, according to Lord Coke, for ever after become a presentative benefice with cure of souls, and no longer a donative; although a presentation to such a donative by a stranger, and admission and institution thereupon, is wholly void. (3) On the other hand, Chief Justice Holt and Powel Justice, held, that though a presentation might destroy an impropriation, yet it could not destroy a donative, because the creation thereof was by letters patent, whereby land is settled to the parson and his successors, and he is to come in by donation. (4)

Unless pre

sentation be by a stranger.

Donatives

herein the

Donatives never lapse (5), unless such be the never lapse; terms of the foundation, or unless the donative jurisdiction be augmented by Queen Anne's bounty, and is of the ordi- therefore subject to lapse by act of parliament, but the ordinary may by ecclesiastical censures

nary.

(1) Inst. 344. a.

(2) Clerk v. Pryn, Siderf. R. 426. Wats. Eccl. L. ch. 15. 171. Quarles v. Fayrchild, Cro. El. 653.

(3) Still. cases, 335. Fitz. N. B. 35. Farchild v. Gayre, Cro. Jac. 63. 1 Inst. 344.

(4) Ladd v. Widdows, 1 Salk. R. 541. 3 Salk. R. 140.

(5) Farchild v. Gayre, Cro. Jac. 63. 1 Inst. 344. a. Britton v. Wade, Cro. Jac. 515. Degges, P. C. P. 1. ch. 13. 197. 1 Geo. 1. st. 2. c. 10.

compel the patron to fill the church ('), as his power refers to the parson who is subject to the ecclesiastical jurisdiction although not to the place.

Thus, if a parson performs the marriage ceremony without a licence, preaches heresy, or commits any misdemeanor, the ecclesiastical court may punish him in that respect, although it cannot deprive him: again, the ordinary cannot regulate the seats in the church (2), nor take upon himself to visit a donative and deprive the incumbent, as he thereby runs into the danger of a præmunire, as was the case of the Bishop of Bath and Wells, who deprived the Dean of Wells, which deanery was a donative (3). The distinction in these cases is, that the parson of a donative is liable to ecclesiastical jurisdiction, as he is a member of the ecclesiastical body, for personal offences, though for matters relating to the church he is exempt (4).

officers.

The parish officers of donatives, as they are Parish not the officers of the patron, are in the same situation as the parish officers of presentative livings.

(1) 3 Salk. R. 140. Rex v. The Bishop of Chester, 1 T. R. 396.

(2) Colefatt v. Newcomb, Ld. Raym. R. 1205. Walter v. Gunner, 1 Haggard's Rep.

(3) 3 Inst. 122. 1 Inst. 344. a.

(4) Powel v. Milbank, 3 Wils. R. 355. Monks v. Butler, 1 Rol. Rep. 83.

Where issue

If issue is joined, whether a benefice be dona

joined, whe- tive or presentative, it shall be tried by a jury at

ther bene.

fice, dona

tive, or pre

sentative.

Donatives

to any parti

common law.

Donatives are not absolutely confined to any not confined particular class of ecclesiastical preferments, as there are other benefices and dignities which reof ecclesias- semble donations, and are quasi donatives. tical prefer

cular class

ments.

Bishopricks.

Thus, all archbishops and bishops were of the first foundation of the Kings of England, and therefore, according to Lord Coke, originally donative, until King John granted de communi consensu baronum, that they should be eligible, which was afterwards confirmed by divers acts of parliament. (')

In consequence of his prerogative in church matters, as patron paramount of all benefices in England, and as founder of archbishopricks and bishopricks, the King is entitled to the custody, and is seised of the freehold of the temporalties of the bishops, (that is, the lay revenues, lands, and tenements which belong to an archbishop's or bishop's see,) during the vacancy of the archbishoprick or bishoprick, and has the right of

(1) 1 Inst. 134. a. Dean tit. 5. ch. 1. 126. ch. 2. 132. and Chapter of Norwich, Evans v. Ascouth, Noy's 3 Rep. 75. b. Domats Supp. | R. 94. Ayl. Par. 126. to the Civil Law, lib. 1. tit. 10. 1 Edw. 6. c. 2. 1 Inst. 344. a. Gibs. Cod.

presenting to such benefices and other preferments, as fall within the time of vacation. (1)

On the death of Stigand, William the Conqueror elected Lanfrank, abbot of St. Stevens in Caen, to be archbishop. And William Rufus on his death-bed in like manner elected Anselm archbishop of Canterbury. (2) On Lanfrank desiring of William the Conqueror the patronage of the abbey of St. Austin, the King answered, "Se velle omnes baculos in manu tenere," that he would keep all the crosier staffs, that is, the investitures, in his own hands.

Without entering into the consideration, whether in the Saxon times, and after that period, bishopricks were or were not conferred in parliament, and whether the king did not endow them with their lands and baronies, the ceremony of investiture being per annulum et baculum, the one a symbol of the spiritual marriage of the church, the other of the pastoral care and charge over the flock (3); it is quite clear that all new bishopricks erected by Henry VIII. are donatives by letters patent according to the statute which authorized their election, and that Irish

(*) Chit. on the Prerog. of the Crown, 64. 1 Wood. Vin. Lect. 297. F. N. B. 32. 2 Inst. 15.

() Bramhall's Works, 75. Eadmer, 16. 17. Chron. Sax.

(3) Coll. Ecc. Hist. lib. 3. 213. Ingul. Hist. 509. b. Math. Par. 20. 27. 2 Inst. 3. Glanv. 1. 7. c. 1. Bract. lib. 3. fol. 226. Dod, on Adv. 88. 1 Inst. 344. a. 3 Salk. 71.