Donative within the statutes of simony and plurality. Lapse. How far dant to raise a doubt whether he had subscribed or not, they did not give a judicial determination upon the former point, but strongly inclined that donatives, with cure of souls, were within all the reasons, religious as well as political, upon which the acts of uniformity are founded, and seemed to think that this had been settled long ago, in the case of Carver v. Pinkney, M. 34 Car. 2, as reported in 3 Lev. 82. Donatives are within the statute against simony (z). And where they have cure of souls, they are likewise within the law against pluralities (a). If the patron of a donative do not nominate a clerk, there can be no lapse thereof, unless it be so specially provided for in the foundation; but the bishop may compel him to do it by spiritual censures (b). But if it is augmented by Queen Anne's bounty, it will lapse in like manner as presentative livings (c). Lord Coke says, if the king doth found a church, hospital or exempt from free chapel donative, he may exempt the same from ordinary jurisdiction. jurisdiction, and his chancellor shall visit the same. Yea, if he the ordinary's do found the same without any special exemption, the ordinary is not, but the king's chancellor, to visit it. And as the king may create donatives exempt from the visitation of the ordinary, so he may by his charter license any subject to found such a church or chapel, and to ordain that it shall be donative and not presentative, and to be visited by the founder and not by the ordinary. And thus began donatives in England (he says), whereof common persons were patrons (d). But the register supposes a royal foundation, and not a mere royal licence; and that it must be proved to be ancient too, and therefore a new licence will not come up to the register (e). However, it is certain that the ordinary could not under the old law visit a donative, but the patron must visit the same, by commissioners to be appointed by him (f). And by consequence a donative was freed from procurations (g). And the incumbent was exempted (Dr. Gibson says) from attendance at visitations (h). And it was said that if the bishop shall take upon him to visit a donative, and deprive the incumbent, he runs himself into the danger of a præmunire (i). And in such case was Barlow, bishop of Bath, in the time of King Edward VI., and was forced to get a pardon, for having deprived the dean of Wells, which was a donative by letterspatent from the king (k). (z) Degge, pt. 1, c. 13. Said to (a) Degge, pt. 1, c. 13. Vide in- (d) 1 Inst. p. 344. (e) 1 Stillingfleet Eccl. Cas. p. 335; A Discourse Concerning Bonds of Resignation, p. 68. (ƒ) 1 Inst. p. 344. But the ordinary had always power as to the parson, if he commits any misdemeanor, to proceed against him by spiritual censures, as in the case of Colefatt v. Newcomb; Colefatt v. where a minister of a donative was sued in the ecclesiastical Newcomb. court, for that when he read prayers, he did not read the whole service, but left out what part of it he thought fit; and for preaching without licence. And it was moved for a prohibition, upon the suggestion that the church was a donative, and argued that donatives were exempt from the jurisdiction of the ordinary, and that it was a lay thing, and the bishop could not visit it; and that if the incumbent was guilty of heresy the ordinary could not meddle with him, for the parson was privileged in respect to the place; but the patron might by commission examine the matter, and upon cause deprive him. But Powell, J., in the absence of Holt, C. J., took the difference where the suit in the ecclesiastical court is in order to deprivation, and where only for reformation of manners: in the former case the court will prohibit, but not in the latter; and therefore if in this case the spiritual court proceeded to deprivation, the court would prohibit them, but not till then. He said he had known prohibitions denied frequently to suits against parsons of donatives for marrying without licence. And the reporter says, Mr. Mead and Mr. Salkeld both told him that they had known the Chief Justice Holt take the same distinction; that the parson of a donative was liable to the ecclesiastical jurisdiction, as he was a member of the ecclesiastical body, for personal offences, though for matters relating to the church he was exempt; and therefore the spiritual court could not deprive him; but for drunkenness, or preaching heresy, they might censure him. And this (says the reporter) seems to be the better opinion (1). case of dona So in the case of churchwardens. On a libel in the ecclesi- Churchastical court for not taking upon him the office of chapel-warden, wardens in the defendant pleaded that it was a donative, and thereupon tive under moved for a prohibition. And upon debate, the same was denied; general law. the whole court being of opinion, that though there was a difference as to the incumbent, yet as to the parish officers there was none, for they are the officers of the parish, and not of the patron of the donative (m). by Queen And as to donatives augmented by the governors of Queen Donatives Anne's bounty, it is enacted by sect. 4 of 1 Geo. 1, st. 2, c. 10, augmented as has been already stated (n), that all such churches, curacies or Anne's chapels, which shall be augmented by the governors of the said bounty. bounty, shall be from thenceforth perpetual cures and benefices, and the ministers duly nominated and licensed thereunto shall be in law bodies politic and corporate and have perpetual succession, and be capable to take in perpetuity; and the impropriators or patrons of any augmented churches or donatives, shall be (7) 2 Ld. Raym. p. 1205. (m) Castle v. Richardson, 2 Stra. P. VOL. I. p. 715; 1 Barn. K. B. p. 5. (n) Vide supra, p. 242. Next donation goes to the heir and not to the executor. How patron may appoint himself. How far of temporal cognizance. excluded from receiving any profit by such augmentation, and shall pay to the ministers officiating such annual and other pensions and salaries, which by ancient custom or otherwise, of right and not of bounty, they were before obliged to pay. By sect. 6, for continuing the succession in such augmented cures, hereby made perpetual cures and benefices, and that the same may be duly and constantly served, it is provided that if they shall be suffered to remain void for six months, they shall lapse in like manner as presentative livings. By sect. 14, all such donatives which at the time of their augmentation are exempt from all ecclesiastical jurisdiction, shall by such augmentation become subject to the visitation and jurisdiction of the bishop of the diocese wherein such donative is. But by sect. 15, no donative shall be augmented without the consent of the patron in writing under his hand and seal. In the case of Repington v. The Governors of Tamworth School, a person being seised of the advowson of a donative, the church in his lifetime becomes void; then he dies, the church being still void. By his will he made the plaintiff executor, who brought a quare impedit, supposing himself entitled to this turn, as an executor is in the case of a presentative benefice. After two arguments in the Court of Common Pleas, the whole court was clearly of opinion, that the right of donation descended to the heir-at-law; and that the executor had not a title, which he would have had, if it had been a presentative benefice (0). In Lowe v. Bishop of Chester (p), it was decided that the patron of a donative might transfer the right of donation while the benefice was vacant to a trustee for himself, in order that such trustee might appoint him to the donative, and that such appointment was good. It is suggested that this decision may require reconsideration. It was said in Sprat and Nicholson's case (q), that if issue be joined, whether donative or presentative, it shall be tried by a jury at the common law; and elsewhere it is said, that if the patron of a donative being disturbed in collating, recover by quare impedit, the writ shall be directed to the sheriff, to put the clerk in possession (»). For if the patron of a donative is disturbed in collating his clerk, he may have a quare impedit against the bishop and the disturber; but the declaration in such a case must be special (s). It was once holden that a mandamus would lie, to admit or restore the donee (t). But a mandamus is not now granted in (o) 2 Wils. p. 150. (p) 10 Q. B. D. p. 407; vide infra, pp. 271, 311. God. p. 196. Gibs. p. 820; 14 Hen. 4, p. 11 b, cited in Powel v. Milburn, 3 Wils. p. 355. (s) Degge, pt. 1, c. 13. 8 Rex v. Blooer, 2 Burr, p. 1043. Vide supra, p. 246. that case, the party having a specific remedy by quare impedit. And such an application will be dismissed with costs (u). Lord Coke says, if the patron of a donative does once present Is not extinto the ordinary, and his clerk is admitted and instituted, it is guished by presentation. now become presentable, and never shall be a donative after. But a presentation to such a donative by a stranger, and admission and institution thereupon, is merely void (x). But in the case of Ladd v. Widdows, upon motion for a new trial in a quare impedit, wherein the point in issue was, whether the church was donative or presentative, evidence was pleaded of several presentations; and the court, viz., Holt, C. J., and Powell, J., 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 parson and his successors, and he to come in by donation (y). the In Reg. v. Foley, upon the construction of a private act of Reg. v. Foley. parliament, it was held that a donative was not created (). Donatives are expressly defined to be included under the term Included benefice in the following statutes: 1 & 2 Vict. c. 106, by s. 124; under 3 & 4 Vict. c. 86, by s. 2; 13 & 14 Vict. c. 98, by s. 3; 34 & 35 Vict. c. 43, by s. 3; c. 44, by s. 2; c. 45, by s. 1. benefices. modern acts. By sect. 10 of 6 & 7 Will. 4, c. 77, the Ecclesiastical Commis- Made subject sioners are empowered to prepare schemes to be laid before the to bishops by Queen in Council for carrying into effect the changes proposed by that act. The section proceeds: "That it shall be competent to the said commissioners to propose in any such scheme that all parishes, churches, or chapelries which are locally situate in any diocese, but subject to any peculiar jurisdiction other than the jurisdiction of the bishop of the diocese in which the same are locally situate, shall be only subject to the jurisdiction of the bishop of the diocese within which such parishes, churches, or chapelries are locally situate." By sect. 1 of 10 & 11 Vict. c. 98, "the bishop of every diocese in England shall by himself or his officers exercise throughout the whole of his diocese, as it now is or hereafter may be limited or constituted . . . . the same jurisdiction and authority which before the passing of this act he or any bishop lawfully could or might exercise by himself or his officers within any part of such diocese." It seems therefore that so long as this last mentioned act is annually continued in force, as is the case at present, all donatives comprised within the territorial limits subjected by any scheme of the Ecclesiastical Commissioners to the bishop of any diocese are subject to that bishop, and the donees thereof visitable and compellable to attend visitations. CHAPTER XI. ENTRY ON BENEFICE. SECT. 1.-Advowsons. 2.-Exchange of Advowsons. 4.-Circumstances attending Presentations. 6.-Remedies of Clerks. 7.-Remedies of Patrons. 8.-Admission, Institution, and Induction. How a clerk is It is now proposed to consider the law which regulates the put in posses- admission of a clerk to a benefice. sion of a benefice. The first step, whatever legal terms be employed, must always be the presentation of the clerk to the ordinary for institution into the benefice. The question immediately arises, who has a right to present, or, as it is technically called in our law, the right of advowson? Foundation of the right of advowson. SECT. 1.-Advowsons. We will first consider 1. The general character and nature of an advowson. 2. How it is acquired, how grantable, and how lost. It is very uncertain whether, during the time of the Apostles and the period which immediately succeeded to their administration, any certain rules regulated the distribution of the revenues of the church (a). It appears that, in the very early ages of Christianity, the oblations made in the diocese were usually deposited with the bishop, who was accountable for his disposal of them to the provincial synod (b). In the western churches they were usually divided into three or four parts; one was set apart for the bishop, a second for the rest of the clergy, (a) Lindwood, Provinciale siæ Disciplina, vol. 2, cc. 20, 21, 22-are the authorities from which the following observations have been for the most part deduced. (b) Canones Concilii Antiochensis, c. 25; Canones Apostolicæ, c. 41. |