Page images
PDF
EPUB
[blocks in formation]

THE effence of an advowfon confifting in the right Presentation. of presentation, it will be neceffary to examine

into the nature of this act, the time within which it must be done, and the persons who are capable of performing it.

Presentation is an offering of a clerk, by the patron 1 Inft. 120 a. or proprietor of an advowfon to the ordinary; and this might formerly have been done, either by word, or by writing, but fince the ftatute of frauds it is neceffary that all presentations be in writing.

§ 2. A presentation in writing is a kind of letter, 1 Burn's Eccl. not a deed, from the patron to the bishop of the

diocefe,

Law, 134.

Rogers v.
Holled,

2 Black. Rep.
1040.

✰ Bro. Parl. Ca. 117.

Examination

of the Clerk.

diocefe, in which the living is fituated, requesting the bifhop to admit the perfon prefented to the church.

§ 3. A prefentation though duly made in all respects may be revoked or varied. This was always held with respect to the king, but was doubted as to lay patrons. It appears however to be now fettled that a lay patron may revoke his presentation at any time, and Sir William Blackstone has obferved that a prefentation was certainly revocable by the principles of the common law, because it vefted no right in any one, not even in the clerk prefented; for if the clerk had a right, the law would give him a remedy to recover it when invaded. But there is no fpecies of common law action open or competent to a clerk, to recover a prefentation when obftructed, but to the patron only.

§ 4. In the cafe in which this doctrine was laid down it was determined by the Houfe of Lords that the inftrument by which a prefentation was revoked, was not in law a good revocation.

§ 5. The right of prefentation is but a limited trust, and the bishops are ftill, in law, the judges of the qualifications of those who are prefented to them. For patrons never had the absolute disposal of their churches upon their own terms, but if they did not present fit perfons within the limited time, the care of appointing a proper perfon to fill up the vacant benefice returned to the bishop.

§ 6. The

§ 6. The law requires that the perfon prefented be 2. Inft. 631. Idonea Perfona, various exceptions may therefore be made to the character and qualifications of the perfon prefented, ift. Concerning his perfon if he be under age or a lay man. 2d. Concerning his converfation if it be irregular or criminal, and 3d. Concerning his inability to discharge his pastoral duty. And the examination of his ability and fufficiency belongs to the bishop, as the proper ecclefiaftical judge; who may and ought to refuse the person presented, if he be not Idonea Perfona.

§ 7. When the bishop refuses without good caufe, Idem. or unduly delays to admit and inftitute a clerk to the church, to which he is prefented, the clerk may have his remedy against the bishop, in the Ecclefiaftical

Court.

§ 8. If the patron finds himself aggrieved by the Idem. ordinary's refufal of his clerk, he may have his remedy by writ of quare impedit, in the temporal Court, and in such case the ordinary muft fhew the cause of his refufal, specially and directly, not only that he is a schifmatic or a heretic, for instance, but also the particular schifmatical or heretical opinions with which he is charged, must be set forth: For the examination of the bishop doth not finally conclude the plaintiff, and without fhewing fpecially, the court cannot enquire and refolve whether the refufal be just or not, and if the cause of refusal be spiritual, the court fhall write to the metropolitan to certify thereof, or if the caufe be temporal, and fufficient in law, which the temporal VOL. III, Court

C

Epifc. Exeter v. Hele, Show. Parl. Ca. 88.

Admiffion.

Court fhall decide; the fame may be traversed, and an iffue thereupon joined and tried by a jury.

§ 9. It has been determined by the House of Lords that it was a good plea on the part of a bishop, in a quare impedit, that the prefentee was a perfon not fufficient or capable in learning to have the said church; and that the bishop need not set forth, in what kinds of learning, or to what degree, he was defective.

§ 10. Admission is nothing else but the ordinary's Inft. 344. declaration that he approves of the presentee, as a fit person to serve the church, to which he is presented.

Watf. 155.

Inftitution.

[ocr errors]

§ 11. Inftitution is the commitment to the clerk of Inft. 344 a. the cure of fouls. The form and manner of it is thus;

Watf. 155.

Wall. 156.

Induction.

Watf. 155.

the clerk kneels before the ordinary whilft he reads the words of the inftitution out of a written inftrument drawn for this purpose, with the episcopal feal appendant, which he holds in his hand during the ceremony.

S 12. The act of presentation only gives the clerk a right ad Rem. But inftitution gives him a right in Re, and therefore the clerk, when inftituted, may enter into the glebe, and take the tithes, though he cannot yet fue for them.

§ 13. After inftitution given, the ordinary iffues a mandate for induction, directed to the perfon who hath power to induct; of common right, this perfon is

[blocks in formation]

the archdeacon, but by prefcription or compofition, others as well as archdeacons may induct.

§ 14. The induction is to be made according to the tenor and language of the mandate, by vesting the incumbent with full poffeffion of all the profits belonging to the church. Accordingly the person who inducts ufually takes the clerk by the hand, and lays it upon the ring of the church door, or if the church is in ruins, then upon any part of the wall of the church or church yard, and faith to this effect-" By virtue “of this mandate I do induct you into the real actual "and corporal poffeffion of the church of C. with all "the rights profits and appurtenances thereunto be

[ocr errors]

longing." After which the inductor opens the door and puts the person inducted into the church; who ufually tolls a bell to make his induction public, and known to the parishioners; which being done, the clergyman who has inducted the clerk, indorfes a certificate of his induction on the mandate, which is witneffed by the perfons prefent.

1 Burn's Ec. Law 156.

§ 15. Prefentation must be made within fix calendar Of Laple. months after the death of the laft incumbent ; otherwife the right of prefentation accrues to the ordinary; and this fpecies of forfeiture is called a lapfe: It being for the intereft of religion and the good of the public, that the church fhould be provided with an officiating minifter. The law has therefore given this right of lapfe in order to quicken the patron, who might otherwife by fuffering the church to become vacant, avoid paying

C 2

« PreviousContinue »